All right. Back on the record in the Simpson matter. All parties are again present. Miss Clark, Mr. Blasier, have you had the opportunity to compare your reports?
Yes, your Honor. I have determined what the source of the discrepancy is. The Defense and the Prosecution joined in the desire to--I thought the witness was excluded.
Yes, your Honor. In that case, the Defense and the Prosecution both sought to retest the tissue, obviously, the Defense desiring to present the kind of argument proffered by Dr. Rieders, that their tissue was simply older, and that explains the lack of oleander. The Defense requested they retest the same tissue. The Prosecution also requested the same retesting, and they independently submitted samples to Dr. Henion. And so you have two separate reports generated, one to the Defense, one to the Prosecution, and each of them submitted their own samples. Now, Dr. Rieders--I propose two things. What you can see in one of the reports is that there were samples delivered from--by Dr. Rieders via federal express from his lab. In the other report, you have Dr. Finkle, the difference being that Dr. Finkle hand-carried some of the samples and Dr. Rieders via federal express mailed some of the samples, and one went to the Prosecution and one went to the--one came from the Prosecution, one came from the Defense. Hence, the difference in the listing of samples tested in the two different reports. That's that. Dr. Rieders has--I propose to show him a bill which indicates that there was a shipment of specimens to Dr. Henion and that was--this bill is dated 4-19-91. He's billing for the expense of shipment of those specimens. We--because the billing entry is ambiguous, we asked that Mr. Blasier have Dr. Rieders bring in his file with a chain of custody documents, and we were told to pound sand. So we are now going to request of Dr. Rieders that he examine his file for the chain of custody documents to indicate the tissues samples that he did surrender. We do know that he did surrender frozen tissue samples that he had from the `85 autopsy to Dr. Henion in addition to which Dr. Lovell gave--
No. Why don't you just ask him, "Did you give the `85 samples that you had still in your custody to Dr. Henion for testing with regards to this case?"
I believe that I did, your Honor. He said he offered it, but it was rejected. That was his testimony.
Why would you ship only the exhumation tissues if you have both in your possession? I mean, it doesn't make any logical sense that he would do that, and especially when we have letters from Roger Diamond, the Defense attorney, indicating that he desired to retest the same tissues for the obvious logical reason that if he doesn't, the People will not be convinced to dismiss the case, which is in fact what happened. So that's why--there were two ways that Dr. Henion got the `85 autopsy samples from a very simple and broad base point of view, your Honor. This witness has attempted to represent to the jury that the only reason there were negative results by Dr. Henion is because he never tested `85 autopsy tissues whether they came from him or someone else. He has denied categorically based on his review of everything he's seen that Dr. Henion ever tested such tissues from the `85 autopsy. A very simple impeachment method is to say, "Look at this. Does that change your opinion?"
Well, it didn't refresh his recollection. Of course it wouldn't refresh his recollection. That's not why it's being shown. It's being shown to see if it will change his opinion as to whether Dr. Henion received `85 autopsy tissues for testing. His answer either way is going to be illustrative and it's one question.
And you're going to bring in Dr. Henion at some point to say, "I tested the `85 autopsy stuff and it's included in my report as sample r something."
That's right. That's right. Actually two different autopsy samples, one from Dr. Rieders and one from the cutting made by Dr. Lovell in 1991.
No. Not with respect to this. And I think it is germaine to--you know, this is cross-examination, and the witness' refusal to accept an obvious fact in order to change his opinion, or if he does, to change his opinion is clearly relevant to his credibility. It's one question and a one-minute video to demonstrate graphically that it doesn't matter what this witness is shown. He's never going to change his opinion. And I think that's highly relevant to his competence and his credibility which the jury has to assess.
Your Honor, this is so collateral, it's incredible. Now I have two reports that look the same on the surface, but they're different. And the reason they're different is because some tests are included in one that aren't included in the other. The one that Dr. Rieders has is only--he got one report. He didn't get both reports. This is outrageous. I think--if we're going to go into this at all, he needs an opportunity to at least see the second report that was not sent to him. This is so confusing. I can't tell what's in one and what's in the other now. They look the same when you look at them, but when you start comparing samples, they're different.
Yeah. The same conclusion is that the absence of--"The absence of these analytes at the time of the analysis does not mean they were not present at an earlier time. Little is known about the chemical enzymatic stability of these substances over time under the conditions of storage experienced by these samples." So regardless of what's included in both of these reports, he comes to the same conclusion. That is, he can't say that Rieders was wrong.
I disagree with counsel's characterization. There is a qualification issued by Dr. Henion, but we come to a larger issue then really. Had Dr. Rieders known of the appropriate most sophisticated method of testing back when he did the testing in 1988, it would have been better confirmed or refuted that the presence of oleandrin was there--that there was oleandrin present in the tissues. His failure to know of the most appropriate testing--
The only issue then here is whether or not Dr. Henion tested the `85 autopsy specimens. That's correct. You've already asked him that. He said to his knowledge, no, he didn't, correct?
He's done more than to say to his knowledge, no. He is saying no categorically he did not.
So the Court--you know, the People have some very graphic evidence that takes no time to confront the witness with to see if it will change his opinion.
No. Watching--that's an incredibly--that's probably one of the worse videotapes I've ever seen. I mean, I've seen nine-year old kids take better videotapes than that. I mean, it's going all over the place, you can't tell what it is, it doesn't focus in on a date and time.
Yes. It can be freeze-framed to show that this is autopsy tissue and it's narrated. Your Honor, I didn't make this videotape obviously.
But see, this is such a collateral issue. If you've established already that he says he didn't have the `85 autopsy, that the `85 autopsy samples were not considered by Dr. Henion and Dr. Henion comes in and says, "Yes, I did have the `85, I came to a contrary conclusion than Dr. Rieders, I disagree with, you know, his professional opinion," then that's the point. And you don't need to show this--and if it doesn't--if you've shown it to him and it doesn't refresh his recollection, then there's no basis to show it. I'll allow you some leeway--and I have to tell you, this is an incredibly confused situation to now have two of these technical reports which appear on the surface to be identical, but if you look at them carefully, they talk about different things at different points and different times. Maybe it's because I'm tired and it's been a long day, but I'm completely confused reading these two reports, because they're not the same reports and they say different things. So at this point, you can ask--just restate that--to set where we are, that Henion--in his opinion, Henion didn't test the `85 samples. That's the end of the inquiry. I find the videotape--since Dr. Rieders has already seen it, doesn't refresh his recollection as to what it is, I'll sustain the objection at this time.
You can see if that refreshes his recollection. All right. Let's have the jury, please.
Your Honor, I would ask it be shown to him without a full description to the jury of what it is.
No. I don't think that's appropriate because the jury needs to know what it is that's being presented, if it does or does not refresh his recollection. "Here's a bill. Do you recognize it? Does that refresh your recollection as to what it is?" You can do that.
we were told to pound sand. So we are now going to request of Dr. Rieders that he examine his file for the chain of custody documents
It's one question and a one-minute video to demonstrate graphically that it doesn't matter what this witness is shown. He's never going to change his opinion. And I think that's highly relevant to his competence and his credibility.
that's probably one of the worse videotapes I've ever seen. I mean, I've seen nine-year old kids take better videotapes than that. I mean, it's going all over the place, you can't tell what it is, it doesn't focus in on a date and time.
This is so collateral, it's incredible... This is outrageous.
I'm completely confused reading these two reports, because they're not the same reports and they say different things. So at this point, you can ask--just restate that--to set where we are, that Henion--in his opinion, Henion didn't test the `85 samples. That's the end of the inquiry.