All right. Do we have the witness available? All right. Let me ask the jury to step back in the jury room for just a moment.
All right. The record should reflect the jury has withdrawn from the courtroom. All right. Next witness by the Defense is Michele Kestler, correct?
Thank you. Your Honor, we filed a brief on Michele Kestler and we had a number of different objections to her testimony, one of which related to the news leaks. And I think that's been dispositively resolved now, although not a hundred percent sure, but I think so. And I think probably counsel understands that based on the Court's earlier rulings, they would not be allowed to inquire. But I think we need to make sure that that is their understanding for the record.
There were several other items that were also contained in the same brief. One was that the Defense should be precluded from inquiring of Michele Kestler as to the status of her husband as having a job with robbery-homicide. He works for robbery-homicide and he works in a division that investigates bank robberies. We argued in our brief that that's entirely irrelevant on the issue of this witness' bias or any other issue. The other item that we'd like to preclude is, we'd like to preclude any questioning to the effect of trying to imply or suggest that Michele Kestler has a bias to testify adversely to the Defendant because of any anger towards the Defense attorneys. I'm not positive that they intend to get into these areas, and perhaps if they make an offer of proof, we could discuss them at more length. Another item that we wanted to preclude was any impeachment on what we would regard to be a collateral issue. That is that at the griffin hearing in the Municipal Court, Michele Kestler testified that a certain item of evidence had been sent out for testing or she had said that it has already been sent out is the way she phrased it, and in fact, the item--excuse me. She said it's waiting to be sent out or it's ready to be sent out is I think the precise language, and in fact the item had already been sent out to Cellmark. It is not relevant to any issue in this proceeding. It is therefore collateral. And then finally, your Honor, on the issue of policy, if that is the only issue that counsel wishes to address--and I'm not sure that it is--we believe that there has been extensive testimony in this trial about the policy of the Los Angeles Police Department from a number of witnesses. Michele Kestler is not an expert in policy. She doesn't really have any more knowledge of it than any other witness from SID.
No, because the policy in terms of the Los Angeles Police Department policy manual is promulgated by uniformed police officers. And they spent a lot of time asking about the Los Angeles Police Department policy manual, and she did not write the manual, she did not participate in writing it. So we believe that under 352, it should be excluded. I have other arguments on many of these items, but I don't know exactly which ones, if any, Defense intends to get into.
So on those five issues, the husband, policy, the impeachment on the collateral issue involving her testimony at the Griffen hearing, any suggestion that she's angry at the Defense and the leak issue, all of those, they should be precluded from questioning her about. And I don't know whether they intend to question her at all if they can't get into the leak. So without hearing from the Defense, I don't have anything further to say.
There's actually a series of different issues here. I--actually, Mr. Goldman is raising additional objections now which were not contained in the initial papers on Miss Kestler, and I can address that as well. It's not a problem. Let me say this. The one objection that they made in their papers was to my inquiring about Miss--of Miss Kestler regarding the leak concerning the socks. There was no application to preclude me from asking her questions about the other leaks which turned out to be accurate and reliable. And I wanted to discuss that first because I think that's the most important issue, your Honor. I think the issue involving the husband is--I mean, they brought out the husband on cross examina--on redirect examination of their own witnesses. In fact, Mr. Goldberg is the lawyer himself who asked those questions. So the jury is already aware of the fact that Miss Kestler's husband works in robbery-homicide in the same unit as Vannatter and Lange. The fact that--also, the fact that Miss Kestler testified untruthfully in fact at a hearing on June 30th when she said that items 49 and 50 were ready to be sent out in the future and then acknowledged at the Griffen hearing later on that in fact she knew that they had been sent out on June 21st, nine days before she testified in this case I think frankly goes to her credibility, the fact that she was willing to lie under oath about that matter. So I think that that's plainly the kind of impeachment that is permissible under the evidence code, under any applicable case law in California that I'm aware of. But let's deal with the most important issue. The most important issue I think, your Honor, is the leaks. When Mr. Uelmen made his argument with respect to Tracie Savage and Mr. Bosco, he mentioned about the possibility that there was not adequate security for the information contained in these reports when they came to the Los Angeles Police Department. They may have been gossip and information may have gotten out to an unauthorized person on that way. We don't intend to make that argument with Miss Kestler on the witness stand. That is not our contention at this time. It is our contention, your Honor, that--and by the way, part of this comes from the 402 hearing where Miss Kestler testified. Part of the proffer comes from an interview that Mr. Scheck and I conducted with Miss Kestler before the city attorney at their offices a few weeks ago and part of it comes from other testimony of other witnesses in this case. And it is simply this. On--on or about September 12th, the SID unit, specifically Michele Kestler, received two reports. One is a Cellmark report dated June 8th--I'm sorry--dated September 8th, and the second is a report from the Federal Bureau of Investigation regarding the hair and fiber analysis results. Both those reports were received at about the same time. On September 14th and 15th, there were news stories in the Los Angeles times and other newspapers describing both the results from the Cellmark report on the Bundy blood drops, that it was consistent with Mr. Simpson, and secondly, also summarizing the FBI hair and fiber results saying that a hair found on Mr. Goldman's shirt was consistent with Mr. Simpson. That fact is in fact contained in that FBI report dated September 7th, 1995--`94, but received presumably at LAPD a few days thereafter. It should be noted by the way that the FBI report was not received by the Defense until I believe September 26th, which is about 11 days after it was reported in the Los Angeles times. So you have both of those reports arriving at SID addressed to Michele Kestler on or about the 12th. Could have been the 9th or the 10th for the FBI report, but it's very close in time. And the subject matter of both of those reports are included accurately in newspaper reports on the 14th and 15th of September. Michele Kestler testified that those reports were kept in a secure facility, they were kept under lock and key in Mr. Matheson's office in serology. That was elicited during the 402 hearing before your Honor I believe a week or two ago. And she limited--was very, very limited as to who had authorization to those reports because the case was being treated as a confidential case, and so the reports would not be kept in the normal routine with the serologist, but instead would be under lock and key in Mr. Matheson's office. Now, it is our argument that other individuals--perhaps not Michele Kestler, but if other individuals had unauthorized access to those reports, those same individuals could have unauthorized access to the items of evidence, and the nexus is simply this, your Honor. The socks were not kept under lock and key in the evidence control unit during any of the relevant time periods. Susan Brockbank testified that the socks were taken out of the evidence control unit on June 21st of 1994 and they were stored in serology--that's the same place where these reports were stored--from June 21st, 1994 until August 4th, 1994. So they were not kept in a secure--in a secure fashion. Indeed, the evidence will show, and I believe Miss Kestler will have to acknowledge it under oath, that the reports of the results were retained in a more secure way than the socks themselves were in this case. I intend to elicit that from her. I believe, your Honor, that we're allowed to argue the inference that if the reports themselves were not sufficiently secure as to prevent unauthorized access--because clearly there was unauthorized access because Michele Kestler has testified that neither she nor the individuals who were allowed to have access to this report communicated with the media and was responsible for this leak.
Well, refresh my recollection. But didn't she also testify that after receiving those results, she communicated those results with the investigating officers in the case?
Well, as to the FBI report, we don't know anything yet because I didn't go into that during the 402 hearing. So I don't know who it was communicated to or when it was communicated to. As to the Cellmark report, she didn't know when the--when or to which investigators the Cellmark information was communicated to. She did testify and we do know that it wasn't communicated to the District Attorney's office until the 16th of September, which was after it was disclosed and leaked to the news media. So we don't have a date on that. The one we have a date on as to who it was in fact released to was the September 21st leak. And what we know about that is that on September 20th, Greg Matheson concluded the conventional serological analysis on the ankle stains on the sock, that Michele Kestler learned of those results also on September 20th, that together, Michele Kestler and Greg Matheson then called up the District Attorney's office and communicated those results to Marcia Clark and Lisa Kahn. That same afternoon, she said she communicated that result to I believe it's Detective Lange, but I'm not positive. I know that she did say she communicated to some detective. So that's the circle of access with respect to the PGM results or that there was any blood analysis done on the socks. It's a very small circle at this point. And the next day, we know that certainly was disclosed that there was blood on the socks and that the genetic profile on that socks was consistent with Nicole--Nicole Brown Simpson. So even without the last leak of information, we have two instances where the Prosecution has asserted that they run a very secure facility. Remember, they made a big deal on the People's direct case out of suggesting to the jury that we have all these mechanisms to make sure items of evidence are not compromised and not tampered with, and I believe we can show that that security is a farce. And the reason we can show that security is a farce is, no. 1, the socks were not kept in the most secure manner at SID during the relevant time period, and, 2, that reports were kept in a more secure way during a critical time period, and nonetheless, it appears where one could infer from the obvious facts that the subject matter of those reports was leaked to the press before anyone else had access to it. One second.
I'm sorry. I thought I made it clear. Perhaps I didn't. That during the time that the socks had been removed from the evidence control unit, that is from June 21st to August 4th, they too were simply secured in the serology unit as opposed to the evidence control unit. That's the record in this case.
And the reports were also in the same unit according to Michele Kestler's testimony at the 402 hearing, the only difference being that the reports were kept under lock and key in a file cabinet in Mr. Matheson's office and the socks did not enjoy even that degree of security. So if we can show that unauthorized people had access to the reports, then I think that we are free to argue to the jury that if there was that kind of breach of security with regard to the reports, there could have also been a breach of security with regard to the socks. And I think that's relevant, and I don't even think that's a stretch in this instance given the very, very compelling facts we have as to the reliability of those different leaks, the FBI leak and the Cellmark leak.
Your Honor, perhaps before counsel sits down, he might make an offer of proof as to whether there's anything else they tend to get into rather than the leak.
But I'm just saying, so we can save time, because I don't want to address all these other issues again if counsel is going to represent to us now--
Counsel, that's the only one he addressed. So that's the only one I want to hear a response about.
I mentioned the other ones even before, your Honor, I think in passing, that I think we're entitled to examine her on her husband briefly because they went into it and I mentioned I believe her lack of truthfulness when she testified under oath at an earlier proceeding--
But I also made argument about policy and whether she's angry at the Defense, and I'm just wondering whether counsel would offer whether he wants to get into any of these issues.
Your Honor, there's no question that the head of the SID can comment on policies at the SID as a director of that institution. There's also no question--
Well, I see the monster lives, your Honor. I just wanted to clarify how many monsters we were dealing with here. I don't know how many times we have to address this leak issue. We've done it now I think five times and I don't want to spend any longer on it because the Court has already ruled. I thought this was an absolute definitive dispositive ruling that finished it for all time, that--
KEY QUOTEWell, if the Court isn't going to allow the Defense to put on evidence as to these--what the news leak was, the Court has precluded evidence as to the airing of this information and is not going to allow them to put that on, then how are they going to put that piece of evidence in? How are they going to prove there was a news leak? The Court's already said that they can't do that, and then they can't put on the evidence to use--to prove that there was a news leak.
Well, in this case, they could try an Andrea Ford and ask her what she reported. But go ahead.
Well, yeah. Maybe many other reporters. But I would assume if the Court is not going to allow these reporters to testify to it, the Court wouldn't allow some other reporter to testify to it. I hope I don't need to spend too much time on this, your Honor, because, you know, you've heard these arguments so many times yet over and over and over again. The Court has previously ruled that access to the information does not imply access to the evidence. That is a ruling that the Court made. We suggest that that ruling is correct. Our evidence was as to the security with respect to the evidence in this case, not with respect to any information of the reports in this case, and the two of them cannot be equated. Also, Michele Kestler--I mean, the only thing that makes her different from many of the other witnesses that have testified to this is that she doesn't have personal knowledge of any of these things as was elicited in the 402 hearing. She does not have personal knowledge of when any of the reports came in, because although they were addressed to her, everything was going through Greg Matheson, and she only knows about them because of what Greg Matheson told her. So if the Court just mechanistically applied the rules of evidence in this case that are set forth in the evidence code and did not allow witnesses to testify to hearsay or things to which they do not have personal knowledge, the only truthful answer that she can give when she's asked when did this report come in is, "I don't know," because she doesn't know other than from what Greg Matheson told her, which is hearsay. I'd also point out--and I'm not going to repeat many of the other arguments that we've previously made--that the preliminary DNA results that counsel was referring to on the 13th and the 14th--excuse me--the DNA results that counsel was referring to on the 13th and the 14th were preceded by preliminary results in the form of Cellmark's cocktail. And it is also possible that the press could have inferred what the results were going to be if they knew what those preliminary results were. So trying to figure out any logical connection between the source of the leaks and any issue that is at evidence in this case with respect to the integrity of the socks or any other piece of evidence requires us to go through so many hoops and requires us to make so many speculative inferences that I believe that the Court's ruling earlier today is correct, that it is irrelevant under evidence code section 350 and also should be inadmissible under evidence code section 352. Now, let me just address some of the other issues. First of all, the question of policy.
And by the way, we did address many of these things, although not all of them in our brief. Yes, Michele Kestler can testify to certain aspects of policy. But the question is, are they relevant and should they be excluded under 352 because we've already spent an enormous amount of time on policy. And I'd just like to quote from the Kaurish case, which we had in one of our earlier briefs that was filed I believe by Mr. Harmon and I quoted it in one of my briefs as well and the language there at 52 Cal. 3D, I'm quoting from page 693, where they're talking about the admissibility of evidence of other evidence gathering techniques is. And in this case--and I know the Court's somewhat familiar with it--the Defense wanted to put in evidence of other electrophoretic techniques that could have been used by the Los Angeles Police Department that were not used, specifically isoelectric focusing, and that was precluded by the trial court, and the Supreme Court held that:
"We agree that it was not material to any issue in this case. The defectiveness of the evidence gathering technique in this case, if any, is not measured in comparison to other reportedly superior methods. Such comparison cannot assist the jury in determining to what extent the method employed actually produced probative evidence nor can it help the jury assign a weight to the evidence." So in other words, when we're trying to determine how well the evidence gathering techniques worked in this case and how probative they are, we have to look at the techniques we used, not other techniques that we could have used and purportedly superior techniques. And this is particularly instructive here because if we find a policy provision that says you could have maintained the evidence this way or you could have collected the evidence this way, does it really tell us anything about the reliability of the technique that we actually used here? And I think, to paraphrase the Supreme Court, it does not tell us anything about the techniques that were actually used in this case to look at some purportedly different techniques that could have hypothetically been used. So I'd say that--and I know maybe this is a late juncture to be arguing this because we've already gone into the questions of policy very extensively, but I'd argue that the issue of policy really doesn't tell us anything probative about what we are inquiring here. And to the extent it is probative, its probative value is minimal and is clearly outweighed by the fact that we've already spent an enormous amount of time on it with all of our witnesses, with Dennis Fung, with Andrea Mazzola, with Greg Matheson testifying about the policy manual, how they interpret it, what it requires, what it doesn't require, who it covers, who it doesn't cover. Any minimum probative value that the evidence has is clearly outweighed by the fact we've already spent an enormous amount of time and we shouldn't spend any more. Now, as to some of the other items, the issue of Michele Kestler's husband, it was the Defense that brought out the fact on cross-examination of Dennis Fung--how it came in or why it came in, I'm not sure--that Michele Kestler's a laboratory director and her husband works for the robbery-homicide. So I guess it is in the record, but we did not bring it in, and we only mentioned it after it was already brought out by the Defense and only in the context of refuting the implication that somehow Michele Kestler and her husband, because he worked for robbery-homicide, and a lot of other people were involved in a conspiracy to frame the Defendant, including Dennis Fung, and that was the only context in which we asked that it be brought out. But it is irrelevant and I think that the case of People versus Kronmeyer is somewhat instructive. And there, what happened was, the Defendant had embezzled--it was an attorney, and he embezzled client funds from a client who was senile. And the doctor who testified as an expert witness for the Prosecution that the victim was in fact incompetent was a friend of one of the beneficiaries of the victim's estate. And the California Supreme Court here at--excuse me--the California Appellate Court at 189 Cal. App. 3D. 314 and the discussions around page 342 to 343 held that the trial court properly disallowed any questions showing the relationship between the Prosecution's expert witness, the doctor, and the beneficiary of the estate because they said that that relationship, that personal relationship between Dr. Korwin and Miller does not itself suggest any bias or any hypothetical suggestion that a bias in favor of miller would manifest itself further by being suggestive of Korwin's bias against anyone as to whom miller was prejudiced is pure speculation. Well, the same exact kind of reasoning is being applied here. They're saying, well, maybe her husband is biased against the Defendant because of his association with robbery-homicide and because of her association with him, maybe she's biased. I suggest that that's simply too speculative to be allowed. As to the impeachment issue on the question of her testimony at the Griffen hearing, the law is settled in California, and we've cited this in a number of different contexts, that we do not generally allow collateral impeachment. Collateral impeachment is impeachment where a witness is testifying to something that is itself not at issue in the case, and you then want to introduce evidence to prove that that testimony was incorrect. The question of when the items were actually sent out as opposed to being prepared to being sent out to Cellmark is not something that is being disputed by the parties. In other words, they're not saying that they were actually sent out on a different date than what we're saying. So the question of when they were sent out is an immaterial issue, an issue that neither side disputes and that neither side is contending is relevant to this case. So what they want to do is ask her when were the items sent out and then to have her say, "Well, this is my understanding of when they were sent out," and then impeach her with her prior inconsistent statement.
So this is a classic instance of collateral impeachment, of eliciting something that is not relevant and is not admissible except insofar as the Defense wants to elicit it from the witness for the purposes of impeaching her with it. And there were quite a few cases discussed that we cited in our brief where similar attempts were disallowed. And essentially what these cases have said is that you really can't set up a straw man and you can't call someone for the sole purposes of eliciting otherwise inadmissible evidence that's not in contest so that you can later on knock down that same evidence, and we suggest that they cannot do so here. It appears that what the Defense wants to do is, they're more interested in impeaching the witness than they are in actually getting anything substantive from her. So I guess what they want to do is call her maybe for something that perhaps the Court will feel has some probative value in the case such as policy and say, "Well, the policy really isn't that you're allowed to put your evidence in plastic bags, is it, Miss Kestler," and her answer, "No, that is the policy. It's okay. You can put it in plastic bags as long as it's not for permanent storage," and then after having elicited this kind of testimony, then impeach her with the fact that her husband works for robbery-homicide and this alleged prior inconsistent statement. I don't think that should be allowed and it seems like it's a patent case of setting up a straw person because why would you call a witness to testify about policy who you don't think is telling the truth and then have to impeach that witness on the witness stand? I mean, there are many people that can testify about policy, many of whom are far more qualified to testify about policy than Michele Kestler. So pick someone that you think is going to tell you the truth rather than have her testify to something, say, well, she's obviously not telling us the truth. So therefore, we have to impeach her. I don't think that kind of subterfuge should be allowed by the Court. And let me just say as to this issue of collateral impeachment, Michele Kestler does not have personal knowledge as to when the items were sent out. When she testified at the grand jury hearing, she had forgotten that she had been told previously that the item had already been sent out and she testified that it's ready to be sent out. That's not the kind of thing that anyone would want to lie about anyway. It doesn't help the People, it doesn't help the Defense. It doesn't mean anything in the context of this case, and there doesn't appear to be any material difference between having been sent out and being packaged and ready to send out. What had happened was that the item was in fact sent out and the testing was halted, and this kind of a instance of a witness misspeaking herself on a completely collateral issue should not be allowed. So I'd respectfully submit, your Honor, that these five items that I've talked about should not be permitted in evidence and that perhaps after they've been excluded, counsel will have nothing left to ask Miss Kestler.
No. No. I've heard enough about the leak. I've heard about the leak four times now.
KEY QUOTEI just want to say, we don't even intend to call reporters. I don't think we need to. I think that with just Miss Kestler frankly testifying--she already testified at the 402 hearing that she was aware of the fact it was reported in the newspapers, that same information. It's not hearsay because it's not being offered for the truth of the matter asserted. It's just being offered for the fact that it was in fact published in the newspapers.
All right. Thank you. All right. The Court has dealt with this issue in a series of different guises. However, the issue is the same, whether or not this is relevant under 350 of the evidence code, whether or not it involves--also involves an undue consumption of time given the very limited, almost none--in fact non-existent probative value. Court sustains the relevancy objection under 350 and also under 352. Having balanced this and weighed it three times, four times, perhaps five times previously, that ruling stands. As to the issue of Michele Kestler's spousal relationship to a coworker of Detectives Vannatter and Lange, counsel may inquire into that briefly. It goes into--it does present an issue of potential bias. As to the Griffen hearing, the fact that Miss Kestler gave incorrect testimony, if she in fact testifies similarly, she'll have the--she can be confronted with that prior inconsistent statement under oath. As to the policies and procedures of the Scientific Investigation Division, I'll allow some latitude in cross--excuse me--in presentation of that testimony since, as the acting director at the time in question and is now director of the lab, she should be familiar with the policies and procedures regarding the functioning of the SID, and that is an appropriate area of inquiry. All right. Let's have the jury.
Your Honor, just one other thing. For purpose of this examination, I would ask that the Court declare her under the evidence code an adverse witness. I think--
Well, let's see how she answers. It's also not a civil case. All right. Let's have the jury.
the reports of the results were retained in a more secure way than the socks themselves were in this case
The lab director isn't an expert in policy?
I see the monster lives, your Honor. I just wanted to clarify how many monsters we were dealing with here.
No. No. I've heard enough about the leak. I've heard about the leak four times now.
she already testified at the 402 hearing that she was aware of the fact it was reported in the newspapers, that same information. It's not hearsay because it's not being offered for the truth of the matter asserted