All right. Thank you, ladies and gentlemen. Please be seated. All right. The record should reflect that we've been rejoined by all the members of our Friday morning casual jury. Dr. Michael Baden is on the witness stand. Dr. Baden, would you resume the witness stand, please.
Michael Baden, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
Doctor, you are reminded, sir, you are still under oath. And, Mr. Kelberg, you may continue with your cross-examination.
Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS EXAMINATION (RESUMED) BY MR. KELBERG
Doctor, when we were last in court questioning you, we were talking about your opinion on how the stomach empties. Do you recall that area of inquiry?
And just to bring it up to speed again, your basic view is that a person's stomach empties approximately 90 to 95 percent of the stomach volume within two hours of the meal having been eaten; is that correct?
And you would find, would you not, from your review of the evidence that Nicole Brown Simpson was a normal healthy person at the time of her death?
And now, doctor, I offered you an opportunity before we started with the jury to review a transcript of your testimony in the bent case; is that correct?
And I highlighted a couple of areas that I asked you to take a look at, in particular, dealing with the volume of stomach contents of Joan Bent at the time of the autopsy. Did you look at those areas?
Yes. I have--I think so. I mean, I looked at a couple of areas. I just want to see what you highlighted.
Let me show you what's page 1180 of the transcript at the bottom. Was that one of the areas you looked at, doctor?
And I have another highlighted area, I think it's 1206. Would you take a look at that? 1205. Sorry. At the bottom?
Now, doctor, is it accurate to say that in the bent case where you formed the opinion that Mrs. Bent had been killed within an hour of having eaten her dinner rather than what her husband said, that she left about two hours after eating dinner not to be seen again, that you found the stomach volume of the contents of the meal to be about a thousand cc's? Is that correct?
And you did get that material for your review later on when you were brought into the case, correct?
I got some of that material, yes, and I examined some of the stomach contents personally.
And you then later on were asked by the attorney for Mr. Bent, the Defendant, how you would describe a thousand cc meal, and you said it would be on the heavy side, correct?
Now, Nicole Brown Simpson's stomach volume, according to Dr. Golden's report, is 500 cc's, correct?
Your Honor, I'm going to object. We went over all of this yesterday, the exact same questions.
Now, doctor, if in fact Nicole Brown Simpson had rigatoni at the Mezzaluna restaurant and had a salad at the Mezzaluna restaurant, left the restaurant about 8:30 to 9 o'clock, say a quarter to 9:00, stopped eating perhaps by 8:30 and did not have rigatoni after getting home, did not have additional salad after getting home and was killed between 10:15 and 10:30 on that same evening or roughly two hours after she left, if your opinion as to how the stomach empties were correct, a finding of 500 cc's in her stomach would have required her to have eaten a meal of approximately 5,000 cc's; isn't that correct?
You're getting there. That's right. She would have had to eaten a huge amount of food, no. 1. No. 2, you left out one important factor in the bent case, is the state of digestion.
Doctor, my question to you is, would it have required her to have eaten a meal of about 5,000 cc's for your opinion of how the stomach empties to leave 500 cc's in her stomach two hours after she last ate at the time of her death?
Yeah. But that's a huge meal. A huge meal doesn't empty in two hours. You're mixing apples and oranges.
Doctor, in the bent case, did you ever testify that a heavy meal does not empty within a two-hour period according to your 90 to 95 percent rule?
In the bent case, you're distorting what I said. I relied on the unlack of any digestion of the potato fragments, and that was an important part of my opinion that the food was in the stomach less than an hour. The potato showed no digestion. Page 1187, bottom.
Doctor, my question to you is, you were asked at the bent trial your opinion as to how the stomach normally empties, correct?
And you can follow along with me. Under questioning by the Prosecutor, were you asked the following question starting on line 8, page 1180? "Now, doctor, would you tell us or explain to this jury about the digestive process? Once someone consumes food, what happens to that food? "Answer: Yes. In the normal condition, when food is swallowed, taken into the body, within about two hours, the food has undergone preliminary digestion in the stomach and has been moved onto the small intestine so that normally very little food remains in our stomachs after two hours or so. This can be affected by factors such as illness and fright and alcoholism, but is rather an universal manner in which people digest food and how long it stays in the stomach." Did you give that answer in response to that question, sir?
And, sir, did you qualify that in any way when you listed the factors that may affect the two-hour period by adding the volume of the meal? Did you qualify that answer in any way at that time, sir?
Well, can I read--the question was, "Would you tell us what is the basis of your opinion?" I did qualify it, yes.
Did you qualify it in the answer I just read? Did you list that as one of the factors that affects the normal process?
Yeah. I said in the normal condition. 5,000--five quarts of food is not a normal condition.
You would not expect any human being short of an athlete, a pro athlete perhaps to eat what is 5,000 cc's; isn't that correct?
Doctor, you described the bent meal of a thousand cc's as a heavy meal; isn't that right?
You did not believe that Nicole Brown Simpson had a 5,000 cc meal at the Mezzaluna restaurant, do you?
Both of you, slow down. The jury is only six feet away. They can hear you, Mr. Kelberg.
Doctor, in fact, if Nicole Brown Simpson ate at Mezzaluna the rigatoni and the salad, went for some ice cream with her children, came home at around 9:40 or 9:42, made a call to the Mezzaluna restaurant after a call from her mother regarding her missing glasses, the mother's missing glasses, that she was killed between 10:15 and 10:30 without having eaten rigatoni, without having eaten salad, the finding of 500 cc's in her stomach of the food that was described by Dr. Golden would demonstrate that your view of how the stomach normally empties is inaccurate; isn't that correct, sir?
Dr. Knight does not agree with your view of how the stomach normally empties, does he?
Not true. He just summarizes of what a lot of other people say. And I don't know--I haven't spoken to him about it. I've spoken to Dr. Spitz about it, but not to Dr. Knight.
Yes. He's one of the foremost pathologists in the United States. Yes, I would consider that.
And in his book, doesn't he say that if you can recognize identifiable food in the stomach at autopsy, in general, that means the person died within two hours of having eaten the meal, correct? Isn't that what he says?
31. And I've got it boxed in blue, doctor. Are there quotation marks there, doctor?
I'll read. "It has been found by others that stomach contents which are readily identified by naked-eye inspection were usually ingested within a two-hour period." I'd agree with that.
Well, doctor, if in fact at autopsy, you find identifiable food in the stomach and that indicates death within two hours, that would be inconsistent with your view that the stomach empties 90 to 95 percent of it's contents within that same two-hour period, wouldn't it, sir?
By the end of two hours, most of the food is out in the normal situation, when people are not emotionally upset, et cetera. We don't know about Miss Simpson's state during that two-hour period. I can not tell you--if you're asking me, I can not tell you from the stomach contents the difference between being killed at 10:30 or 10:40 or 10:50. I have not said that and I would not claim that. There's no way of looking at that stomach contents and determining whether Miss Nicole Brown Simpson was murdered 10:15, 10:20, 10:25, 10:30, 10:40, 10:50. I'm not claiming that and I don't want to have to defend it.
My question though, sir, was, Dr. Spitz' statement about if you can identify food in the stomach, it generally indicates death within two hours--
Depending on how much food there is. As I said, we can find pieces of food 20 hours later in the stomach.
Doctor, can you cite any recognized forensic pathology text which supports your contention that the stomach empties generally 90 to 95 percent of its stomach contents within two hours?
No. The question is, can you cite any recognized forensic pathology text which says that the stomach empties 90 to 95 percent of its contents within two hours, the view that you expressed in the bent case?
Umm, I would be glad to get you references if you'd like, Mr. Kelberg. I don't have it here with me. I have it--you cited my book that you have in front of--that you gave me to look at last night which says that without criticism.
It's a description of forensic pathology. It's not meant to be a textbook, but there's been no objection to that in--
I'm asking you any recognized forensic pathology text that supports your view that the stomach empties 90 to 95--
Wait, wait, wait, doctor. Let him finish speaking and asking the question before you start to answer.
Last question. I'm moving on. What forensic pathology text that is a recognized forensic pathology text supports your view that the stomach normally empties 90 to 95 percent of the stomach contents from a meal within two hours of the meal having been eaten?
I will get you articles if you wish. That is a commonly recognized view. And it's my experience. This is my experience of 40 years of looking at stomach contents, is that a normal healthy person, it empties within two hours, 95 percent, most of the stomach contents, and that's my opinion.
Looking at the socks. I didn't examine--I didn't touch the socks. I looked at the socks.
Dr. Wolf, Miss Kestler, Mr. Vannatter, Detective Vannatter, Lieutenant Rogers were there, yes.
And Dr. Wolf was taking the notes for you or were you taking the notes or were each taking notes?
Your Honor, I have a document that's been provided through discovery that has the page from the imprinted sequential numbering, 1022. May that be marked as People's 582 I think we're at?
Okay. Doctor, is that one of the notes of the visit that you indicated you and Dr. Wolf used at the LAPD crime lab on June 24th at I believe it's--well, I can't read the time. Let me show you a page and ask--maybe that will refresh your memory as to the time.
We didn't examine the socks. We just looked at the socks. We weren't allowed to touch them, pick them up, hold lights to it or to photograph it.
A visual observation is an examination. It may not be a complete examination, but it is an examination, isn't it?
And now if we could look at item 13, if Mr. Fairtlough can bring that one into focus. Now, doctor, you see--and maybe Mr. Fairtlough can outline that so we'll have it preserved. Just box in--yeah. Box in item 13. The area that Mr. Fairtlough has just outlined, doctor, is the notation made regarding the socks; is it not?
I--we didn't write that down, no. There was no blood observed or else I would have included it.
Well, sir, wouldn't it be important for you to document that in looking at the socks, as far as you were able to see, that you couldn't see blood on them?
And did that analysis, as she spoke, was that something you understood to be an analysis looking for things like blood?
What was your understanding of "No analysis yet" as reflected in the notes Dr. Wolf wrote for the two of you?
You did not do any kind of microscopic examination of the socks; is that correct?
And they weren't turned inside out for you by anyone at the time you and Dr. Wolf were looking at them with the naked eye?
Not very bright. It was a little better than the--better lighting than here presently, but not very bright.
Not what you would describe as the kind of ideal lighting for conducting a close visual examination of something like a dark pair of socks?
And high intensity lighting is the kind of lighting that you would like to have when conducting a close visual inspection of an item like black socks, right?
Let's see. I think we're done with that. If we could print that out. I don't know if the red lines print out.
Now, doctor, I wanted to go into this issue of interpretation. Forensic pathologists do interpretation, crime scene reconstruction. That's interpretation; is it not, sir?
The criminalist does crime scene interpreta--interpretation. The forensic pathologist examines the body in the context of the crime scene. There's a certain amount of interpretation, but not to the extent that a criminalist would do.
Well, for example, when you offered opinions about the extent of a struggle between Ronald Goldman and any perpetrator or perpetrators, that was interpretation of the findings that the forensic pathologist makes. Isn't that what you do?
And interpretation by you or any other forensic pathologist to some degree employs simple common sense, doesn't it, sir?
Well, includes common sense, but includes mixed with some expertise or else it's no more valuable than common sense.
Would you agree that interpretation such as you offered yesterday is more of a subjective process than necessarily an objective process?
Well, doctor, for example, in the science field, the term "Reliability" is familiar to you; is it not, sir?
--if two people are doing some form of testing, if the test is a reliable test, the two people should reach the same conclusion from the same test that is performed by the two of them?
It depends whether you're using a very scientific interpretation or a more general interpretation. And when doing experiments, when doing an experiment in a laboratory, reproducibility is--can be equated to reliability. But in common discussion, reliability can have a little different meaning.
Well, I'm talking to you as a scientist, doctor. Do you consider yourself to be a scientist?
And as an art, isn't that suggesting then that the process is subjective rather than objective in the sense that two people can look at the very same set of circumstances and draw different conclusions, not the same conclusions?
That's true. That two people--two physicians can look at the same set of circumstances and draw different conclusions, and I guess that suggests a subjectivity to it, yes.
Now, doctor, when you are retained by a Defense attorney in a criminal case, you understand that there are privileges that attach to whatever you do and find such that you may not disclose those findings unless the lawyer authorizes you to do so or through the litigation is required to have that disclosed. Isn't that your understanding, sir?
Objection, your Honor. That calls for a legal conclusion that is beyond his expertise.
Yeah. I'm not--as we--as you showed yesterday, I'm not a lawyer, and that's a complicated question. I know that there are some things that are considered work product or privileges that I'm constrained from talking about, but that goes with Prosecutors also, all lawyers, when I work with Defense attorneys or with Prosecuting attorneys.
What that extends to, I would have to ask the attorney as to what I can talk about, what I can't talk about. But usually it doesn't come up.
Doctor, you understand there is a fifth amendment privilege that prevents you from disclosing what your findings are if you're not going to be called as a witness by the Defense when you're retained by the Defense?
Doctor, you understand that unless you find favorable findings to a criminal Defendant who retains your services, the likelihood is, you will not be called to the witness stand; isn't that correct, sir?
In general, I am aware that if my findings are contrary to the theory of the Prosecutor or the Defendant, they're not likely to call me as a witness, yes. But it works for both sides, not just for one side.
Excuse me, doctor. If your findings are contrary to the view of the Prosecution and you have been retained by the Defendant, it would be logical that you would be called by the Defense attorney just as you've been called here to try and refute the Prosecution theory. Isn't that your understanding?
Doctor, isn't it your understanding--and please listen to the question carefully--your understanding--
--your understanding that unless--when you're retained by a criminal Defendant's lawyer, unless your findings are favorable or helpful to that Defendant, you will not be called by that Defendant's lawyer to testify at any trial. Isn't that your understanding?
But, doctor, when you're retained by the Prosecution, isn't it also your understanding that the Prosecution is obligated constitutionally to turn over to the Defendant, the criminal Defendant, your findings even if your findings are not helpful to the Prosecution?
Doctor, would you agree that if you want to testify in court in a high publicity case, it helps for you to have findings that are favorable to the side that have retained your services?
Doctor, would you agree that if you wanted to testify in court in a high publicity case, it helps for you to have findings that are favorable to the side that has retained your services?
No. 1, I do not wish to testify in court. But if I should have the desire to testify in court, I guess what you say is correct. But I would much prefer not to be here, Mr. Kelberg.
KEY QUOTEDoctor, are you familiar with a special on HBO, Home Box Office called Autopsy Confessions of a Medical Examiner?
It was a program emanating from the book I wrote that you have in which I narrated. It had to do with a number of my--the cases I was involved with, and HBO made a special about it to demonstrate autopsies and findings.
And, doctor, was there a premier for this special, a special kind of gala presentation?
Well, there was some kind of in-house HBO cocktail party when it was--the first night that it was shown. It's been shown many times, but the first night, they had some kind of a cocktail party.
Doctor, would it be fair to say that this special puts you in a very favorable light?
I think the HBO program was about cases that I was involved with and was favorable to me, yes, I guess.
If he's going to use the videotape, your Honor, there is a procedure that your Honor--
I've never seen that document. I'm familiar with what it says, but I've never seen that document, no. It was not sent to me.
No. I was there. I was there. They had a--they made a--you know, a fuzz about it. They had a cocktail party and I was there, yes.
Doctor, I believe you said yesterday that perhaps of your total annual income, you said 39- or 40,000 comes from your relationship with the Albany state police, correct? New York state police. Excuse me.
Part-time position. And about four times that amount is brought in annually from your privately retained cases; is that correct?
Doctor, was it your expectation that by having this HBO special, it would generate further business for you, sir?
No, Mr. Kelberg. It was my expectation that that special would help educate people and the public about what medical examiners do, what forensic pathology is all about and why we need reform in this country, to have a uniform system of forensic pathology investigation that doesn't exist. And that was the main thrust of my involvement with HBO. And we're doing another one because it was very successful. But it was not done because I wanted more business.
The bent case I believe was involved, yes. That was one of the cases they referred to with the importance of stomach contents and importance that medical examiners and police, when they go to a scene, they find out what the last meal was, what's in the refrigerator, what's in the stove, what's in the garbage so it can be then compared with the autopsy findings and that the stomach contents should be looked at. In most autopsies in this country, the stomach contents are ignored.
Now, doctor, case file numbers were given to each of your cases that was described in the special; isn't that correct?
Whatever it says, it says. That was--the case file numbers was artistic license taken by HBO.
Well, that's what I wanted to ask you. If it said, for example, that it was Baden case file 506, was that in fact a case file no. 506 of Michael Baden?
So with respect to any of the cases that were used, any that was used in the special with a case file number, that was all made up, right?
No. I don't save and retain every case--every death I investigate. There were a number of deaths over the years that I've retained because I think they're instructive and formative mostly for the textbook that I'm involved with. But of the 20,000 cases, there may be a few hundred that I think will be informative and the cases and the photographs and the information usable in a textbook.
I can not tell you from the stomach contents the difference between being killed at 10:30 or 10:40 or 10:50. I have not said that and I would not claim that. There's no way of looking at that stomach contents and determining whether Miss Nicole Brown Simpson was murdered 10:15, 10:20, 10:25, 10:30, 10:40, 10:50. I'm not claiming that and I don't want to have to defend it.
You don't have adult children.
That is a commonly recognized view. And it's my experience. This is my experience of 40 years of looking at stomach contents, is that a normal healthy person, it empties within two hours, 95 percent, most of the stomach contents, and that's my opinion. And it's been very valid over the years.
No. 1, I do not wish to testify in court. But if I should have the desire to testify in court, I guess what you say is correct. But I would much prefer not to be here, Mr. Kelberg.
I don't document the negatives. I document the positives.