Ladies and gentlemen, would you just step back real quickly in the jury room. I need to take a look at something.
Well, before we do that, you--the report of Dr. Henion that you've given to me and directed my attention to page 5, sample 001 and 007, that appears to be from the `91 exhumation, correct?
Yes. Yes. That indicates that some of the tissues delivered--and there's no dispute that exhumation tissues were in fact delivered to Dr. Henion. There's no question.
All right. In the report, is there reference to any samples from the original autopsy?
No, no, no. I'm asking, within the reports that you have, where is the contradiction?
No. That wasn't the point, your Honor. Counsel asked Dr. Rieders whether--and I think the witness ought to be excluded for this. I really do. Counsel asked Dr. Rieders whether reading the report refreshed his recollection as to whether Dr. Henion got `85 autopsy samples or not. He indicated yes. He indicated that, looking at the report, he was able to confirm the fact that Dr. Henion never got `85 autopsy samples, and that's what I asked him.
I went back over that, I said, how does this report indicate to you that he did not get the `85 autopsy samples.
Here's my question: "Then it's your position that based on your review of that report, that he never tested the issues taken from 1985 autopsy; is that correct? "Answer: Yes, that's correct. He says so himself." Then I asked: "Would you change your opinion?" So it is Dr. Rieders' testimony that the review of this report confirms his opinion that Dr. Henion never got `85 autopsy samples.
Your Honor, he's testi--he wasn't there when this was done. He has Dr. Henion's report. Dr. Henion's report said, "I got this stuff in 1991." Dr. Lovell's report says, "I was there when we got it from the mausoleum. It looked like mud." This is completely improper. I tried to raise this initially. I think it's--the whole line of questioning is improper. I ask that the jury be admonished to disregard everything about scone as being completely irrelevant and done in bad faith. There's nothing in this report indicating that he tested anything other than what Dr. Rieders said he tested. What Dr. Rieders said is based on Henion's report. That's all he has.
You know, my God, this is reality standing on its head. It's absolutely clear if you look at the videotape, your Honor--we have all the memos from Brian Finkle. We have all the letters that indicate that he absolutely did get and test `85 autopsy tissues. There's no question about this. I don't think--perhaps counsel doesn't know.
KEY QUOTEHe Finkle and he Henion, both. Finkle hand-delivered samples to Dr. Henion, and some of the samples that he hand-delivered were in fact `85 autopsy tissues that were given to him--
I'm not the one who asserted that this report was able--was competent and material to refresh this witness' recollection. That's what counsel used. I contend otherwise and that's why I wanted to show him the videotape, because there's no way from this report that he could possibly have reaffirmed his position that there were no autopsy tissues given to him, because the manner in which it's documented here, it's insufficient for him to say one way or another. And yet he has. He has said that based on this report, he can say he never got autopsy tissues from 1985. That--he can't do that. And he's formed an opinion based on something he cannot--that doesn't give him the information he claims it does. I have something that will give him that information, and I want to confront the witness with it. And I think that on cross-examination, it's certainly fair game to do so.
Wait. All right. You're saying that he's used something to refresh his recollection that you say is an insufficient basis for him to have refreshed his recollection. Therefore, you're entitled to cross-examine on some videotape? Is that what you're saying?
No. I'm challenging the basis of his opinion. I'm challenging--first of all, the opinion itself, but also the basis of it. No. 1, the report can't possibly be used to--as a basis for him to conclude that there was no `85 autopsy tissue given. Secondly, would it change his opinion--and certainly, I'm entitled to do that, your Honor, with an expert. "Would it change your opinion, doctor, if you were to see this videotape?" I--
Which shows exactly--which shows the tissues being cut and split to give to Dr. Finkle who was working with Dr. Henion on this case for the Defense. This is a one-minute videotape.
1, I don't think that proves anything. Let's assume it's true. Dr. Rieders wasn't there for this. It can't refresh his recollection. It's not in Dr. Henion's report. Dr. Rieders has testified that that's what he has, is Henion's report, which says, "This is what I tested and it's from the `91 exhumation." Nothing in there about testing anything else. It's reasonable for him to say this is his report, this is what he tested, so he probably didn't test anything else. That's not impeachment.
Your Honor, this witness has stated in categoric terms very definitely that the 1985 autopsy tissues were never sent for Dr. Henion to test. He has made--he's been very emphatic in his testimony about that, your Honor. You know, and now we're going to back pedal a little bit and try and pretend that didn't happen? It did happen, and we have the right to challenge that opinion because it's fundamental to the discrepancy in their results, and Dr. Rieders knows that.
I would like to make a discovery request on anything they have that shows that Dr. Henion in a report tested something other than the report we have. If there's another report, we should be entitled to see it, as well as anything that shows that Dr. Rieders would know something that Dr. Henion did that's not in his report.
And, your Honor, let me point out something in Dr. Henion's report as well. There is a listing--you can see in the key where it talks about the tissue samples r--the tissue samples provided from Dr. Rieders via federal express. Right? That's on page 5.
At the bottom of the page, it says samples 1 to 7 delivered by federal express from Dr. Rieders' laboratory, okay?
Yeah. Let me show the Court. At the bottom, it shows 001 to 007 as specimens sent from Dr. Rieders' laboratory via federal express. If you will look at the listings above that on page 5, your Honor, you will see that there are R008 008 through R0016, which indicate other samples recovered from Dr. Rieders. And I really think that the witness should be excluded for this, but--
All right. Looking at page 5 of what you've just given to me, would you direct my attention where it talks about 001 to 007 being `85 autopsy samples?
I'm not saying that it does. It's actually R008 through R0016. You see, what occurred is that Dr. Henion got a split of Dr. Rieders' tissues. He also got, however, autopsy tissues that had been maintained by the Coroner at the time of the exhumation. In other words, in `85, there were tissues removed from the body. Some were kept at the Coroner's office, some were given to randy Basil, who later forwarded them to Dr. Rieders. The tissues that were maintained in a preservative at the Coroner's lab, Dr. Finkle was given a split of those and--by Dr. Lovell, and that's what's documented in the videotape. So--and he took those to Dr. Henion. And in addition to that, some of the frozen tissue samples that Dr. Rieders had from the `85 autopsy were also forwarded to Dr. Henion. And Dr. Finkle and Dr. Henion have records that will verify that. I also have a letter to Dr. Henion from Roger John Diamond, in which it indicates that the Defense wishes to retest the same materials which the Prosecution expert tested. And of course, that makes sense because how are they going to convince the People to dismiss a case unless they make sure that they do test the same tissues? Otherwise, the People have the very argument that Dr. Rieders is trying to proffer, which we know is untrue.
Actually, the first minute is sufficient because it's identified as being narrated. We can freeze frame on to the jar itself that shows the Coroner's number and the date of the autopsy, 1985, so that it's clear that on that jar there are `85 autopsy tissues. We don't need that last part.
It's not proper authentication. Let's assume it was however. He's already said this is not going to refresh his memory about anything because he wasn't there. It would be completely improper to show it in front of the jury to this witness who's already said his memory is not going to be refreshed. If we want to bring him in, let him watch this, then you can ask him again. But he's already said it's not going to refresh his memory. I still want to see Dr. Henion's report of testing on those tissue samples. I've never seen it. I don't think it's in the--it's certainly not in the one I had. I don't think it's in hers.
All right. We'll take a recess. You can show Dr. Rieders the tape. Show counsel where Dr. Henion mentions testing the `85 autopsy--
And I'm not asking to refresh his memory. I'm asking to show him something before the jury to see whether or not it will change his opinion any, and I cannot believe--
Well, I got to tell you, this is an incredible amount of sidetracking on a collateral issue on a non-case. All right. We'll take 15.
KEY QUOTEYou know, my God, this is reality standing on its head. It's absolutely clear if you look at the videotape, your Honor--we have all the memos from Brian Finkle. We have all the letters that indicate that he absolutely did get and test `85 autopsy tissues.
Well, we've got two different reports here. That's for sure.
Well, I got to tell you, this is an incredible amount of sidetracking on a collateral issue on a non-case.
He's already said this is not going to refresh his memory about anything because he wasn't there. It would be completely improper to show it in front of the jury to this witness who's already said his memory is not going to be refreshed.