Your Honor, if it is possible, there are a couple of preliminary requests with respect to Miss Kestler that I would like to resolve before she takes the witness stand and resumes the stand. I can do it now, in an hour, if you like. In light of what has just transpired, it is up to you, but I would like to spend at least five minutes of the Court's time dealing with some preliminary matters with regard to the witness.
First of all, your Honor, with respect to Miss Kestler, I would like the Court now once and for all to consider her an adverse and hostile witness. As you may recall--and I think both for subjective reasons and objective reasons--as you may recall, there were maybe four or five instances during the first fifteen minutes of the direct examination where I had to ask the Court to strike her examination--strike her answer as being nonresponsive. On at least one occasion you granted that request. There was no question that she was not necessarily cooperating with my questions and being totally responsive in that regard, and I think that was very clear from her demeanor as well.
That is all I'm asking for at this time, your Honor. Also, I think there is no question, given her role as the head of the SID criminalists laboratory in this case, which has been attacked as part of the Defense theory of the case throughout those proceedings, there is no question that she has an adverse position to the Defense in this matter. Moreover, on a very subjective and personal level, she, during the July 13th interview with her, acknowledged her resentment toward the Defense and toward, you know, what had happened so far between the Defense allegations and the laboratory that she is responsible for.
Okay. Your Honor, at the--a few minutes ago you mentioned that--how Friday I went into chambers and I expressed my--I wanted to make a record after the Court said that it felt that--
I lost track of the day. Monday, thank you. On Monday afternoon, how the Court felt that the examination of both Rieders at this point in time and also the direct examination of Miss Kestler were not very probative and not very useful, were extraneous, and umm, should be dealt with accordingly. And what I wanted to say, your Honor, on that regard, is, first of all, you have to recall that the issues about the quality of the work of the criminalists in this case has been a very important portion of the Defense theory of the case and we are talking about contamination and corruption of the evidence--
So why don't we get to that, because asking Michele Kestler if she recollects meeting with particular individuals over a year ago, whether or not she took notes at those meetings, et cetera, et cetera, is fascinating testimony to see what her recollection powers are, but the issue is did she look at some of this evidence, did these issues occur to her? Has she taken some different steps since this case started to reevaluate whether or not, for example, they ought to put swatches in plastic bags? Have they reevaluated that policy in light of what has happened here? Have they decided to retrain their individuals regarding blood collection? There is a lot of interesting stuff she can talk about. She can talk about the fact when she looked at the sock for inventory purposes she didn't see any obvious blood staining. There is a lot of very practical relevant stuff you can ask her. But whether or not she remembers meeting with two other individuals a year ago and who took notes or what it was about, if you look at the jury, they are looking at you, they are looking at the witness, they are looking at me going what is this about?
Actually it is funny, and that is the subjective impressions of the jury. Other people who I spoke to who were watching the jury felt that they were looking but not--not with that reaction but rather looking at the witness rolling their eyes at her answers which they thought were pretty incredible.
Well, you can interpret that two ways: Rolling their eyes saying what does this mean? Why are we doing this? This is ridiculous, or--
I agree, we can all spend our days reading tea leaves, but I don't want to do that, but the reason I wanted to ask those kind of questions, for instance, is the witness was very resistant in admitting that she had any kind of hands-on involvement in this particular case. You know, for instance, in the things you were just saying, that she did have some hands on involvement.
I'm going to, but I wanted to at least elicit from her and demonstrate that from the very first day she was personally participating in the meetings that made the important decisions about this case.
Ask her that question. Did you participate in a series of meetings at the beginning of the investigation in this case and did you have some overall supervisorial responsibility? That is a compound question but it is only two questions.
The problem was when I asked her about the meetings and then she said, no, and I tried to move off of that, Mr. Darden objected saying assumes fact not in evidence because she wasn't even acknowledging her presence at the meetings.
The last thing I would like to say, your Honor, in that regard, is I am somewhat concerned when the Court expresses its either impatience or whatever feelings it has about a lawyer's examination, be that lawyer myself, be that lawyer Miss Clark or anyone. And what I would simply ask your Honor is other than ruling on those objections, if you do have that kind of concern with what I'm saying or what Miss Clark is saying or any of us are saying, that we do that at a side bar.
Well, here is the problem, counsel. As a matter of judicial philosophy I have always preferred to let the lawyers try their cases because I don't presume to know what it is you are trying to prove. I assume you know what you are doing. But at some point in time if it doesn't make sense to me, and I have tried to pay close attention to everything that goes in this case, if it doesn't make sense to me, I have the impression that it is probably not going to make a lot of sense to the jury. And I'm trying to encourage you--and you will notice most of these exasperating comments that I make come late in the day.
Thank you. Now, on a very specific basis on one issue. One of the things I'm going to be going into with this witness is the--she personally collected evidence on August 26th from the Bronco, but you made a ruling in this case early on that the luminol testing is not admissible. I don't intend to go into it. In fact, I told Miss Kestler that if I mention the fact that she collected--if I elicit her from the fact that she collected items of evidence from the Bronco on August 26th to evidence her own personal involvement in the criminalistic aspect of this case, that she is not to bring up the luminol testing. She can simply say we were there to do other tests or whatever. And I just wanted to put that on the record at this time to make sure it doesn't come out and to make sure also that by me asking her about her going to the Bronco on August 26th and actually collecting a bloodstain from one place or coins or other trace evidence, that that doesn't open the door to the Prosecution going into the fact that luminol testing was done on the Bronco. So that is one substantive matter that I do need to resolve right now before I do continue with my direct examination.
On the issue of the luminol testing, am I understanding Mr. Neufeld to say that there should be no mention of samples obtained?
Well, I don't know which--specifically which parts of the Bronco console or whatever it is, which of the swatches that we are talking about specifically. But the Court's ruling was pretty clear. If there are no confirmatory tests, that presumptive test doesn't come in, so what--if he carefully frames the question, that is the status of the case, that is the law of the case.
Okay. So basically the rule then that is there is no mention of luminol test. I don't want the witness to be precluded from explaining her reasons for seizing certain stains.
Well, let's see how the testimony goes. I mean, obviously the point he wants to make is that she was personally involved in evidence collection.
On the issue of Miss Kestler being an adverse witness, by the way, your Honor, you know, the Court saw Miss Kestler--Mrs. Kestler and you watched her demeanor. To declare every witness who happens to work for the LAPD as some kind of adverse witness, I think it is unfair and it is unnecessary. I was objecting during the direct testimony because counsel was mixing apples and oranges in terms of her responsibility and participation during the time that she was assistant lab director in June and July and when she subsequently became the lab director after July. Her duties changed. The questions he was asking were vague. They were vague to me and they were vague to her as well and that is why I was making the objections that I was making. In any event, if anything, Miss Kestler gave more answer than the question required. It didn't appear at all to me that she was being reluctant at all or if she was hiding anything or if she harbored any animus toward Mr. Neufeld. The LAPD SID lab is opened. They have opened the lab on days when it is normally closed for the Defense. They have closed the lab on days when it was normally opened--opened for the Defense as well. They have made all of their employees accessible to the Defense to be interviewed. Everyone that they have asked to interview has been interviewed at her direction. I mean, how can we now declare her an adverse witness?
I have a real problem with her subsequent remedial conduct in terms of her having changed policies and stuff after--after June 13th. I have a real problem with relevance on that, but that is another issue. And as far as Mr. Neufeld's mention of--mentioning of perhaps the Court should take us to side bar to straighten us out on those occasions when the cross has gone to a little too long, that is what I was trying to get at this morning, and we agree with that.
And I have done that on many occasions, invited you over without the court reporter and encouraged you to move along.
Okay. And we appreciate that. But I think we would all like to see--to see those issues handled that way as often as possible and I should say that I don't consider Mr. Neufeld's mentioning of that issue before the Court this morning as some type of unethical--form of unethical conduct as well, your Honor. But I would strenuously object to Miss Kestler being described as an adverse witness at this point, your Honor.
Your Honor, just one point. No. 1, when I mentioned what I would like to see happen prospectively, I did not mention it in the context of some motion that I was about to make to the Court asking you to change our position 180 degrees and saying now we wants you to consider the admissibility of these tapes.
What I said about handling at a side bar I said on the record in open court. I didn't say that it should be done in the robing room in chambers off the record.
Thank you. I will allow some limited leading of this witness, depending on the situation.
if it doesn't make sense to me, and I have tried to pay close attention to everything that goes in this case, if it doesn't make sense to me, I have the impression that it is probably not going to make a lot of sense to the jury.
you will notice most of these exasperating comments that I make come late in the day.
To declare every witness who happens to work for the LAPD as some kind of adverse witness, I think it is unfair and it is unnecessary.
she, during the July 13th interview with her, acknowledged her resentment toward the Defense and toward, you know, what had happened so far between the Defense allegations and the laboratory that she is responsible for.