All right. All right. Here is Mr. Hodgman and Mr. Douglas is present. All right. Good morning, gentlemen. I thought we would see if we can resolve any of the crime scene view nighttime view issues this morning.
Very well, your Honor. I thought I was being called down on another issue. I left my notes upstairs, but I think I recall all the pertinent information so we can proceed.
Your Honor, Mr. Harris is currently printing out that which I am about to read to the Court, if the Court pleases.
That is a letter dated today to Judge Ito. (Reading.) The Defense renews its objections to a night jury view at the scene of 875 south Bundy. As a result of visiting the scene last Sunday evening, the Court's investigation established a number of differences between the scene today and the way it was at the time of the incident that would significantly affect lighting conditions: There is some dispute about the street light overlooking the scene. The Taylors, next door neighbors who offered evidence at our tour of the scene, said that the street light at the at the time of the incident was different (Less bright blue halogen light) than the light currently at the scene. Apparently, however, the Court has information from official city sources that the Taylors are mistaken; a Malibu or small landscape light midway up the front walkway, in foliage on the western side, was illuminated the night of the incident, but was stolen or is currently inoperable; perhaps most importantly, a landscape light directly to the southwest of the front gate that was shining in the direction where Nicole Brown Simpson's body was found is inoperable. The light was found during our tour lying on the ground. Counsel has not been able to reconstruct from photographs precisely how this light was situated the night of the incident. Given the close proximity of this light to Nicole Brown Simpson, its correct placement is critical to recreating substantially similar lighting conditions." And in that regard, your Honor, as the Court will recall, Detective Lange opined that the light was designed to shine directly on the address, 875, but however, it had been oriented in a manner to the right or more towards Miss Brown Simpson's body. Its absence therefore causes us great concern.
(Reading.) From photographs of the scene the night of the incident, it is clear that foliage from trees has grown up and obstructs light from a large porch-type light on the front of the condo near the half-moon window close to the roof."
(Reading.) Since many witnesses testified how light "Cascaded" down, obstruction of this major light source to some unknown degree creates a significant problem in recreating substantially similar lighting conditions; a tall plant at the top of the first stairwell on the southwest side is described by the Taylors, Ron Hardy and Detective Lange, as being taller than it was at the time of the incident. How much taller and how much of an obstruction this would cause to light cascading down from the half-moon window or from light on the first floor living room is unknown; foliage is overgrown, according to all witnesses namely the Taylors, Mr. Hardy, Detective Lange and Vannatter, all of whom were present on Sunday who were making statements during our trip, and obstructs light from the front door and front gate area; the night of the incident there were many candles illuminating the living room that overlooked the front gate area. These substantial problems exacerbate two additional and intractable impediments to recreating substantially similar light conditions: One, the night of the incident there was moonlight, whereas the night of the proposed jury view there will be no moonlight; two, the night of the incident there was some fog, whereas the night of the proposed jury view there may be no fog.
The serious difficulties in recreating substantially similar light conditions at Bundy, the necessity of taking testimony about the differences in lighting conditions, and the confusion that will inevitably arise in trying to assess the effects of a series of unknowable obstructions, outweighs the need for a nighttime jury view. The jury has already seen the Bundy scene during the day and nighttime photographs of the scene exist as it was just after the incident. Indeed, these photographs would have to be used during the proposed jury view in an effort to compensate for alterations of the scene. It would be less confusing, far less expensive and less time-consuming to rely upon the night photographs, the previous daytime jury view and the testimony of witnesses. The Defense is also concerned about the issue of sound. The Court's stated purpose for this night jury view is to recreate just lighting conditions, yet sound is equally important, if not a more important factor. The testimony of all timeline witnesses seems to be that once dogs began to bark they continued to bark. The key issue is when did they start. Thus, the testimony of Mandel and Aaronson and the question of what they could have seen walking past 875 south Bundy is less important than what they could have heard. Similarly, Heidstra's testimony is more ear witness as eyewitness testimony. Inevitably, the jury will be influenced in its assessment of what could be heard at night by their night jury view even though that is not the Court's purpose and sound conditions will not be replicated. In fact, the whir of helicopters and commotion associated with the jury view will mislead the jury in terms of what could be heard. Lighting conditions is an issue the Prosecution wants to pursue at a night jury view. Sound is the issue the Defense wants to pursue--wants explored, excuse me. Unless both can be substantially replicated and unless efforts are made to recreate both, the night jury view at Bundy is unfairly prejudicial. Thus, if there must be a night jury view, the Defense requests that efforts be made to recreate sound conditions. We also reiterate our request that the jury be taken to the location where Heidstra heard voices and the sound of a slamming gate so they can fully appreciate how close those locations really are (One cannot adequate appreciate the proximity from aerial photographs)."
What are you proposing specifically with regards to the gate slamming? There are a number of metal gates at that particular location and immediately adjacent locations. And my recollection is in our informal discussions, while we were out at the Bundy location last Sunday evening, that it was the Defense hypothesis that the gate that was slammed was the metal gate that is on the 875 south walkway that goes from Bundy to the alley--to the west; is that correct?
Correct, but there is a small three-and-a-half-foot high gate. Is that the one we are talking about?
We have on earlier occasions retraced that scene with Mr. Heidstra slamming various gates to determine which gate replicated the sounds he heard that night. If necessary, we would propose recalling Mr. Heidstra or bringing him to the scene with testimony being taken in front of the jury and with a court reporter, such that we can then perform an experiment of slamming each of the gates and he will then be able to identify which sound best replicates that which he heard on June the 12th.
My recollection of the crime scene photos is that the rear six-foot gate on the Bundy alleyway, on the west alleyway, was opened.
And that the gate at--where Miss Brown Simpson was found was also opened, so the only other gate that would have been slammed closed would be the mid-gate, but that gate was opened as well is my recollection.
I do think, however, your Honor, a couple things that comes to mind. First, the slamming action is the clanging of metal against metal and not necessarily the clanging of the door locking into its metal jam; therefore, in optimum fairness it would probably be best for us to recreate each of the gates and to have Mr. Heidstra identify that sound which best replicates what he heard those gates--
I know you can slam a gate and you can slam it hard enough that it won't have time to latch.
I wanted to ask you during the course of your experimentation at the Bundy scene did you do that and get that result?
I was not personally there. I am informed that an effort was made--that each of the three gates were slammed. That wasn't the back gate, that wasn't the front gate, but that in fact it was the middle gate.
Reading on: (Reading.) "Therefore we ask that a gate slamming demonstration be performed. As the Court learned during our nighttime trip to the scene, Detectives Vannatter and Lange conceded they had performed that demonstration and the gate could be clearly heard. They just hypothesized one could not be sure which gate on the Bundy block was being slammed."
Your Honor, there is a footnote with respect to the fog that I wasn't able to page down and I now have in front of me and this was our concern about the impact that the fog would have on the actual ability to see at Bundy. (Reading.) Interestingly, the Defense is informed by weather experts that the existence of fog creates more, not less, illumination from moonlight." And therefore that is another factor that causes us grave concern that we cannot adequately duplicate and adequately replicate, not just the view from the eye, but also to adequately perform or replicate the sounds that Mr. Heidstra heard. If we are to fairly perform this view, I think it prudent and incumbent upon this Court to take issues that both sides wish to have replicated that are very germane and central to our search for truth into account. Since we are there, since we have the jury there, we would prefer, if there was a view to be performed, that it be performed in a fashion such that the sound and the eye can be adequately replicated for the jury to all see and also to hear. Given these problems, your Honor, and given the costs that are clearly going to be incurred with closing off the freeways as we did before, clearing off the--
Very well. Given those costs, your Honor, we think the far better course is to allow the jury to rely on the photographs and to proceed with the trial without a jury view. The Court is well aware that there are hundreds, if not thousands of occasions when the search for truth is adequately performed without traipsing the jury to a location every time that a nighttime incident is germane or relevant. We don't think on this occasion, given these grave concerns, that the interests of justice are best served by having this jury view.
The Court expressed some concern that additional lighting that had been placed in the tree above Mr. Simpson's lights--his garage, I'm sorry--and a plywood board that is now placed over the fence, which is used to obscure the views of tourists and bystanders. I spoke yesterday with people that at Mr. Simpson's house and I am informed that if necessary, it is possible to turn off the one light that was added and to remove the boards for the hour or so that the jury would be there so as to fairly replicate the scene that Mr. Park may have seen on that evening. I share the Court's opinion that opening the gates is not substantially similar, because certainly it is possible for there to be some obscuring of the view by the very nature of the gate being there, but that can be performed, your Honor. We don't think that any view should take place and we don't think that the interests of justice demand such. Thank you.
You know, as the Court is well aware, the issue here is not exact replication, it is not exact duplication; it is whether the creation of substantially similar circumstances can be had. It is the People's position that we can. It has been our position from the get go that both a day time as well as nighttime view would be instructive, and pardon the pun, but illuminating for the jury. As trial counsel, having been there in the daytime, as well as with the Court last weekend at nighttime, in my impression and in my assessment, it would be of value to the jury to have it both ways, to see it at daytime and nighttime. The question is can the conditions at nighttime be rendered substantially similar to the way they were on the night of June the 12th, 1994. It is the People's position that indeed they can. This morning I spoke with a Mr. Robert Hernandez of the Department of Water and Power. He is upstairs and would gladly meet with counsel to provide to them the same information that he provided to me this morning. This is with regard to the street lights. The street lights in question of which there are two, one in front of the Bundy residence and the second at what I believe is the southeast corner of the intersection of Bundy and Dorothy, I am informed are the same as they were on June the 12th, 1994. That both of the lamps inside of those street lights were replaced in January of 1994, so they are indeed the same, and I was present when Mr. Taylor, one of the neighbors, said that he recalled some sort of difference in illumination, but it had to have been at a different point in time, because there is no documentation, there is no data that would indicate there has been a substantial change between what would be the viewing date and June of 1994. The street lights are the same. And again, Mr. Hernandez is present. I have asked him to say to speak with Defense counsel and he is glad to share whatever information he has in that regard--
Yes. A sodium high pressure light, if I am recalling correctly. Again, I came down prepared to address another issue, but from my recollection, that is the type of light. There was some mention last weekend of someone recalling a bluish type light emanating from the light and there appears to be more of an orangeish type light that emanates now. I am informed that when the present type of lamp first ignites it does cast off a bluish type light for a period of about five minutes before it settles--the sodium high intensity aspect of these lamps is fully engaged, giving us the type of light that we witnessed last weekend. So the bottom line is the street lights are the same, there is no data or information other than, say, the recollection of the neighbors, that the lights are different; however, the lamps were changed in January of 1994 and we have that data available to the Defense.
All right. I think--I think that is a critical issue. The two critical issues that I see on this that Mr. Douglas raises are the street lamps, so you may have to call Mr. Hernandez, allow counsel to review the records, cross-examine Mr. Hernandez as to these records, so that we have an adequate record.
Secondly, the crime scene photos do have that orangeish glow to them and there is one in particular taken from across the street where the body of Nicole Brown Simpson is visible up the walkway, but also contained in the photograph is part of the overhead street light and it clearly has an orange hue to it emanating from it. It doesn't have the blue white halogen tint or glow to it. So the crime scene photos tend to be in accord with Mr. Hernandez and his records, it would appear. Why don't you address the landscape light, the foliage issues, the candles issues and the moonlight issues and fog issues.
Very well, your Honor. With regard to the Malibu or landscape type lights, an electrician has been summoned to replace the lamp in the light which would shine up to where the residence address numbers formerly were, and the same type of lamp would be installed and an electrician is working on that to as closely duplicate the situation as it was on June the 12th, 1994. There was a second Malibu type light which I believe was up the stairwell a little bit. It was noted last weekend that that was out. The electrician is going to replace that as well. So as far as the Malibu landscape type lights, that is being worked on and would have to be the subject of a dry run type review, if you will, to ensure that counsel is satisfied that the--that type of lighting is indeed substantially similar.
I have the sinking suspicion we are going to spend our Saturday night doing this.
KEY QUOTEWith regard to the foliage, your Honor, with the assistance of Mr. Taylor and Mr. Hardy, the foliage that cannot be physically removed, such as the potted trees which have been put in place in order to screen the front of the residence at the Bundy location. That foliage is going to be trimmed back in accord with various photos and the recollection of two individuals who were very, very familiar with what the foliage was like at the time the potted trees will be moved. The issue of attempting to duplicate the interior lighting which radiated outward from the residence over various aspects of the scene can be duplicated simply by matching what we know from photographs and the recollection of investigators to the events of that night.
Let's assume that the Court will be able to make a factual determination on the foliage by comparing photographs of the crime scene taken in June of `94 with how it appears today. Do we know how many--my recollection is that we don't know how many candles were burning in the living room.
I think we have an estimate as to candles. I think that part can be created in some fashion. As the Court has observed, however, the interior furniture at the Bundy residence has been removed. We will have to rely on photos in an attempt to duplicate that as well.
In addition, your Honor, I am reminded that we have a videotape of the interior of Bundy and that living room area, which would be able to depict placement of candles and--we will take a look at that to ensure that the proper information--
My recollection is that there was also a downstairs--two downstairs lights on within the interior as well.
Yes, the investigators recall that as well, as well as I believe a light right over the entryway into the house.
Well, we don't have control over nature and that again--the test is substantial similarity and not exact duplication or replication. I would offer to the Court that a stipulation of some sort be offered to the jurors so that they understand that there may be some difference there. Now, one thing that we will have to look into a little bit further, I mean, whether the moon was present or not, there is also the issue of the location of the moon at the time period in question. Last week I noted, if I recall correctly, we appeared to have either a full or substantially full moon, and yet at the time that we were out there that moon was rather low in the sky and not in a position to be casting light from an overhead position.
Has your--has your staff done any research on the percent of the moon that was illuminated and the moonrise moonset times?
Yes. Your Honor, we have a judicial notice motion with regard to the phase of the moon and the information that the Court just mentioned which either has been lodged with the Court or will be lodged with the Court, but yes, our staff has determined that information. I don't have it at my fingertips at the moment.
With regard to Rockingham, your Honor, again relying on memory, as the Court is aware, there is some differences in lighting at the front of the Rockingham residence. There were two spotlights in the tree, the tree nearest the house. We know that the brighter of the two lights up in the tree, this would be the light closest to the house, was not even there on June the 12th, 1994. The other light we are informed was not on and that is a matter we will have to discuss with counsel, because I--I note protest from the Defense side of the table, so that is something we are going to have to discuss because our information is that light was on a timer, so perhaps they can be forthcoming with some information to us so that we can clear up that situation.
My recollection of our discussions at the scene, though, was that Detective Lange, if my recollection is correct, indicated that the light over the garage was illuminated and the only light that is over the garage is that light that is in the tree, because if you recollect, we inspected the exterior of the garage to see if there was any other light that might fit that description and that was the only one that could possibly. And the residents there advised us also that the second light had been added for security purposes since these events, so there was one light in the tree overhead that according to Lange I think was illuminated.
Okay. I'm not--Detective Lange recalls differently, at least based upon my informal interview with him this morning. We have testimony from the witnesses at trial, that if I am recalling correctly, we have Allan Park describing a light on over the garage and we will have that testimony assembled so that we can answer that more definitively.
Correct. Your Honor, in addition, as far as the lighting goes, there was--there were carriage lamps flanking each side of the driveway at Ashford and Rockingham that again we will have to more closely identify whether that illumination is recalled from the various percipient witnesses by examining the transcript. Those lights may have been on a timer or Mr. Douglas will illuminate us as to that.
If worse comes to worse, what we can do there, let the jury see it first in a condition where those lights are off, let them see it again when those lights are on.
With regard to lighting at that location, I verified from Mr. Hernandez that the street light at what I believe is the northwest corner of Ashford and Rockingham is indeed the same lamp and that was replaced in December of 1992, so the lamp is the same, it has not been changed--
--since June 12, 1994, until today's date. There is the issue of the lighting emanating from the Salinger's house. The Court might recall some of the discussions last Sunday night wherein there was information that some of the foliage at the Rockingham residence had been trimmed back, perhaps now what amounts to about a week and a half ago.
The tree closest to the house, as well as two trees in the interior area from the--within the semicircle of the driveway, have been severely cut back. The foliage separating the Salinger's residence to the south from the Rockingham residence has been thinned out considerably and trimmed back as well, thereby allowing present illumination from the Salinger's residence to go filter through over to Rockingham. Based on interviews that have been conducted with the Salingers, some of the present lighting, which can be described as security type lighting, was not there on June the 12th, 1994. To address that issue it is a simple matter of turning off the light, so we will be able to duplicate things from that aspect.
Did you have a statement from the Salingers indicating which of that security lighting was added since June the 12th?
And I should have that today, yes. I have the information. I don't have the statement in hand.
All right. Would you fax that to Mr. Douglas then as soon as you receive it, if we are not still in session.
The foliage, however, we cannot change. My proposal to the Court is that much as the Court suggested with regard to Bundy, just so that we don't create a false impression with the jury, is that we have photos enlarged of the Rockingham location with the manner in which the foliage was on June the 13th, 1994.
Have you undertaken to select representative photographs and have those enlarged, because that is a time-consuming process? You may need to get that process started.
Your Honor, what remains are the so-called--the sound demonstration issue. If I can begin to address that now, I can simply state, you know, the People are opposed to the suggested sound demonstration because what we are doing is conducting an experiment or demonstration in the presence of the jury. As the Court will recall from the testimony, as well as exhibits identified when Mr. Darden was cross-examining various witnesses, that is, there are a number of gates in the vicinity of the Bundy residence. Photos of those gates were introduced in evidence through the testimony of one witness. We've had investigators in the area who have identified a number of gates as well. I do not believe we can create a substantially similar situation. I think we create a very speculative type situation with regard to that, so we have a whole different set of parameters with regard to the so-called sound demonstration. And for the record, the People object to that. I would remind the Court as well, in conclusion, unless there are any other questions that the Court has of me, this is something that was contemplated from the very beginning. This was something that the People proposed in order to aid the jury in the resolution of the issues of this case, that there be a daytime as well as nighttime view. The Court has had the benefit, like I have, of both. I think the daytime view was very instructive for the jury. Two-dimensional photographs, however enlarged, however enhanced, can only do so much. I would have to think that the Court would agree with me that the daytime view was very helpful to this jury in understanding the dimensions involved with both locations, but most particularly Bundy. With regard to the nighttime view, it is indeed different at night, and I was impressed last weekend with the value at understanding the added dimension that darkness and the appropriate lighting of each scene at the time played, at least in my mind, in terms of understanding the events of this case. So I will close with that.
Your Honor, with all due respect to Mr. Hodgman, whom I continue to respect and admire, we are losing sight here of what the real reason for a jury view is. Certainly there is value for this jury to appreciate the interrelationship of the dynamics of the Bundy and Rockingham crime scenes. Therefore, there was not so vocal an objection to there being a jury view, but your Honor, I don't think that there really is the need for the luxury of two jury views, given all the problems that have been discussed, given all the byplay that the various parties have offered, and given the evidence in this case. If the Court will recall, the reason for a nighttime jury view, as I can recall, was to determine whether the only witnesses whom we are aware who were present at Bundy, at or near the time of the crime, were able to see something or not on the walkway. Clearly Mr. Boztepe and Miss Rasmussen have clarified the fact that they were able to see the body. That is not an issue. Clearly Mr. Mandel and Miss Aaronson said that they did not see a body. But when you also remember the testimony, it was that once the barking of the dogs began, it continued, and there has been no testimony that I can recall from Mr. Mandel or Mr. Aaronson that they heard the barking of the dogs at any time when they were walking by Bundy, so we are not being able to see the forest through the trees. What then is the practical benefit of a jury view at Bundy given this record? I think the evidence is clear that when a body was there, it could be seen, and arguably, when the bodies were not there, they were not seen. The dogs were not heard, they were not noticed. I am really concerned about the costs of this case, given the extraordinary nature of these proceedings and the cost of this jury view, given our belief that it is a luxury. I do acknowledge and I do appreciate the value of a jury view. Were there no pictures available at all that attempt to replicate the scene at night, I could better appreciate the worthiness of the arguments that are being made, but it is a luxury, your Honor, not a necessity, and one that I don't think we need to go into right now, given where we are in the case, given the state of the record and given the very serious problems about which there is still some questions that are still unresolved. I am very concerned about the interrelationship of the moon and the fog, because we have been told that the fog enhances the brightness of the scene and there wasn't fog or we don't know if there will be fog on August the 20th, when we are prepared to go. The Court is well aware that the natural ambient dynamics in June differ in southern California than in August. June is known for being foggy in the evening and foggy in the morning and sometime around mid-morning the fog burns up and it is a beautiful day. That is not my understanding or my recollection--I have lived here all my life--that is the way that life is in August. August is cool all the time, so that is important. That is very important. And your Honor, if we are going to be out there, we should be out there and taking advantage of everything, not just what the People want, but also what the Defense wants. We want to dispel the notion that one is incapable--and I dare say I anticipate the arguments from the--from the aerial photographs, that Mr. Heidstra was incapable, standing a hundred or so feet away or a hundred or so yards away, however the actual distance is, in the alleyway on the far side of Bundy from even hearing what he suggests that he heard.
I have asked Mr. Byrne to grab the photo board, the aerial photo board that I believe Mr. Bailey took a photograph of.
His testimony in many respects is critical. His credibility in many respects is central to our theory that this man did not have the time to commit this crime, given their scenario and given what Mr. Heidstra has testified that he has heard. Therefore, your Honor, if we are going to go there, and I argue strongly that we should not, we should take advantage of the reasons that both sides want to go there. This is no need to go there to see if you can see a body, because the evidence is clear that you can. We argue--in fact, we will argue that you can see a body if one is there, but if a body is not there, you cannot see a body, and we would offer the testimony of Mr. Mandel and Miss Aaronson to support that claim.
All right. For the record, Mr. Byrne has brought out--Mr. Byrne, what Defense exhibit is that?
1239. All right. This record should also reflect this is John Byrne, not his brother Joe Byrne who is also one of my law clerks.
Yes, your Honor. Your Honor, their witnesses have testified about the dog barking, about how the barking continued for a half hour or more, our witnesses were there within that window and heard no barking until 10:35 at the earliest, according to our witnesses. The record is clear there is no necessity for a jury view. I am also concerned about the Malibu light, because as the Court will recall, it wasn't simply not working, it was broken off, and as the Court will recall, though, it was supposed to be oriented to look at the numbers. It was not. It was tilted in an area towards the body and not away. And I am not comfortable with some hindsight speculation, given 13 months or 15 months after the time, to attempt to duplicate the precise angle of a central light and the closest light to the actual bodies. I am not comfortable with that at all, given where we are in this case, given the state of this record. I am not comfortable with that at all. The Court will recall that Mr. Taylor and even the police officers when we arrived, the first thing they said was that the lighting was different, and if they are not different, that is fine, but it doesn't remove or eliminate the serious concerns we have, given the costs, given the luxury of a second jury view, given the time that we have already spent on these issues, given the facts that are in issue. I think that is something the Court has to really balance. What is in issue? It is not in issue that a body could be seen from the walkway at Bundy. That is not in issue. If in fact there is going to be a jury view, and there have been issues on both sides as to what occurred at different places at night, basic notions of fairness balance in favor of there also being a Rockingham view. Now, the Court did a great job in preparing the boards for this job by--and I'm sure it is Mr. Byrne and Byrne--by culling for us a tremendously useful chart with specific references to the record as to what witnesses said about various lighting.
The lighting--there was lighting over the garage of Mr. Simpson's house at Rockingham. There is no chart at this point that it was the brighter light that was there and the softer light was not or which. And I think that with all due respect, Mr. Hodgman is incorrect if he suggests that it was clearly which light, because as the Court will recall, Mrs. Baker and Mr. Baker, who were present at Rockingham were unsure. I asked for Miss--Miss Gigi Guarin to be able to have the person who added the light disconnect that same light, but I don't know which one it is. And as the Court will recall, we looked around over the garage and wherever to see if there is any other possible lighting. Clearly there was a light there. As I told the Court, all of Mr. Simpson's lights are powered by the same timing system and therefore it is reasonable to expect that at ten o'clock at night on Sunday, June the 12th, all the lights on the system were all on. When police officers have testified that they were there, which was at or near daybreak of June the 13th, it is very clear and quite possible that those lights could have been off. And I was very curious how they were able to say quite plainly when we first got there that this light wasn't on or this light wasn't on, when as far as I could recall they were never there at night to even know. As to the foliage issue, Mr. Hodgman, Detective Lange and myself had occasion to walk down the Bundy--the Rockingham walkway, and I'm sure Mr. Hodgman just simply forgot to tell the Court that at the critical area where Kato Kaelin heard the three thumps on the wall the foliage that was there on last Sunday was substantially similar to the foliage that was there on June the 12th.
Let me ask you this: Just as a practical matter, I recollect your request that we have the jurors go down that walkway, but it is also a rather treacherous walk and especially if you want to us do it in pitch darkness back there.
This is what I would propose, your Honor: That they be escorted in groups of five as there were earlier, that there be an officer or an escort with a flashlight in the beginning, perhaps one in the middle and one in the end, that they then be escorted by flashlight to an area, that on a particular sound signal the flashlights all be cut off for thirty seconds, the jury not speak, but they could see. They can look. There is enough time for their eyes to be accustomed to the darkness there, and that they then be escorted out. That is an issue I think that is resolvable; however, your Honor, that begs the question as far as the Defense is concerned. There is no need, there is no manifest need, there is no legal necessity, given the record, to have any sort of a jury view at all. If a body is there, a body can be seen. That is what they are going to argue. We should be allowed to argue the converse. If a body is not there, and we know a body is not there because there were no barking dogs, the body was not seen. That is what a trial is all about. Sometimes, with all due respect, we get caught up in the hype and in all of the technology and in the majesty and the power of this particular case, with all due respect, because I'm part of it, too, but what we lose sight of is this a simple trial. I'm always reminded this is a murder case, pure and simple. Murder cases occur at night far too frequently in this dear city of ours. However, on every occasion it does not justify a jury view. Given the state of the record and given this record, your Honor, that is an expense that the dear taxpayers of this city should not be forced to endure. I thank you.
Yes, I do, your Honor, briefly. I will agree with Mr. Douglas, this is a murder case and that is what should drive all of us in terms of the ascertainment of truth. I mean, this is a serious matter, and at what cost do we deprive the jury of the full opportunity to help ascertain the truth? They are the fact finders.
Let's put this cost issue to rest. The Court was advised that if the Court gave adequate notice to both the sheriff's department and the Los Angeles Police Department that no overtime personnel would be used, it would be all on-duty persons who would be regularly scheduled to conduct--for example, the LAPD metro unit that would do the escort duties, and the traffic control, they would all be normally assigned and on duty at that time, so there is no additional cost to the taxpayers. The only additional cost that the Court may incur as a result of this is there is temporary fencing at Bundy that will have to be removed and replaced. There is a minor electrician's job with regards to the Malibu lighting, so my guess is we are talking expenses somewhere between 200 and 300 bucks.
Very well, your Honor, we will put that issue to rest. The only remaining thought that I have that I would like to--
Your Honor, my last observation for the Court is this: If a picture is worth a thousand words, then a view is worth a million in these circumstances, and I'm asking for the Court to allow us the original--originally anticipated opportunity to balance the views with daytime and nighttime. If we proceed only with the daytime view, as instructive as it is, it still leaves the jury with an impression of how things look during daytime. We need to balance and temper that with the nighttime view, and my concern is that we don't want to leave the jury with a misleading or inaccurate impression regarding the lighting. The very preview of the Defense argument offered by Mr. Douglas today in my mind is just--adds further strength to the argument why this view is necessary. We can work to make it substantially similar. We can have the dry run to--so that we have at least agreement as to how the view should be conducted and that conditions are indeed substantially similar. And again, your Honor, we ask that the Court allow us the opportunity to take the jury to Bundy and Rockingham at night so that we can achieve that. Thank you.
All right. Thank you, counsel. I agree with you, Mr. Hodgman, that a picture is often worth a thousand words. The problem with nighttime photography, there are certain limitations to nighttime photography. It is dependent upon the film speed, the film type, the aperture, the exposure. Any number of adjustments to a camera can result in a different final result on--as printed. So although the crime scene photographs of that evening are certainly illustrative and useful, they don't capture the actual scene as can be appreciated by the human eye, and the human eye's ability to appreciate or not appreciate under these circumstances certainly is an issue. I will conditionally order the nighttime jury view for Sunday. This is conditional on one more walk through. I'm concerned. I share Mr. Douglas' concern. My greatest concerns are two things: Establishing for the record the nature of the overhead street light, and I think we have Mr. Hernandez available. We have almost used one court session for this issue, so when I take the recess, I will allow Mr. Douglas, Mr. Hodgman, to speak to the city lighting person. If we can't resolve that on the basis of the record that we have, we will take some testimony. I'm also concerned about the landscape light that was originally designed to shine up on the number--street number, 875, but has since--but the testimony was that that was canted slightly to the left. If that can be replicated--if that cannot be replicated, then we will not have a nighttime view, because that is a crucial lighting source that was within mere feet of Nicole Brown Simpson.
Certainly there were lights that were on--all the lights were out in the house and the candles were lit.
If you recollect, there were two lights that were on downstairs. I think our chart does have the two interior lights that were on. Also the overhead light over the door was on, so we will have the door opened, we will have those interior lights on. That is in the chart and I hadn't heard any dispute about that, so I assumed that that was the condition. All right. As to the--also, during the dry run my understanding is that the Taylors, their regularly scheduled gardener is going to be doing some cutting back of the foliage. The Court will examine that as well on the dry run to see if that is substantially replicated. If the Court is satisfied at that time then we will go forward. If not, we will cancel. Also, during the dry run, Mr. Douglas, during the course of our dry run last Sunday for the first time while were standing at Bundy, Mr. Scheck mentioned to me for the first time a Defense desire to have this sound demonstration. Looking at the photograph that Mr. Byrne has brought out, the complication would be that we would have to close that alley for a significant period of time and that would be a great inconvenience to the residents there since they would be denied access to their homes, but it is something that I think logistically we can do. We will have to ask the senior lead officer in that neighborhood go out and advise the residents that is a possibility, in fairness to the residents, because we may block off the alley for an hour. It is something I am willing to contemplate, assuming I'm convinced that the conditions are substantially similar. However, just by glancing here, I can see several metal gates across the street on Bundy.
What I am indicating to you is I'm willing to contemplate this and we should probably take it up in the field and make a determination at that time.
I am mindful that on the first jury view the alley behind Bundy was cut off as well as were the streets on both sides.
They were; however, we are trying to do with this as little inconvenience to everybody as possible.
All right. But what you are talking about is having an additional two cars to cut off the alleyway.
Your Honor, with regard to that, as the Court has correctly observed from viewing aerial photographs, there are a number of metal gates. I hold in my hand in excess of a dozen photos of metal gates from that very immediate area, and if we are going to engage in such a venture, we would ask that similar slams be of other gates as well so that--it is in a sense sort of a gate line-up and that--
But we will have--we will have the investigator who took these photos and so we are in a position to point out to the Defense and the Court--
Mr. Hodgman, I am aware that there are a number of metal gates out there. They brought up this issue. Since we are going to be there, I ought to at least give it some consideration and think about it, if it is plausible.
If it is something that is reasonable, something that might help the jury decide this case, I'm willing to contemplate whether we should do it. We are talking maybe an additional half hour to walk everybody around to that location, slam a bunch of gates and see what happens, see what they can hear.
Your Honor, it is clear--I think even the People know that you can hear. They did the same test themselves.
Well, Mr. Douglas, we will argue it after we've had a chance to go out, because we did not inspect the rear alleyway or do anything while we were there. All right.
The point being I'm willing to contemplate it. All right. Let's take a break for 15. Let's have the jury brought down. Mr. Hodgman and Mr. Douglas, I'm going to instruct you to talk to Mr. Hernandez who is here with his street lighting records.
And if we can't resolve that matter by an agreement, then we will take testimony. Miss Clark, you had something and Mr. Bailey you had something.
Very, very briefly, your Honor. Mr. Hodgman alluded earlier to the fact of a judicial notice motion and I have the copy that is stamped that the original was filed on August 14th and this is the request that the Court take judicial notice of the phase of the moon on the night in question. We have appended to it the records that we premised the request on, and I believe the Court did its own research of that same topic. We would ask that the judicial notice be taken on I guess either today or on the day that we go out to the jury view, that the jury be advised of the judicial notice taken of that information.
Your Honor, there is one important word or consideration that was omitted, I think admittedly so, from their own papers, from their judicial notice. The nature of the crescent moon was a waxing crescent moon. Waxing means increasing, as their own dictionary reference suggests. We don't use the word waxing, and I suggest that we not. We should use the word increasing to at least give the fair sense of the nature in which the crescent was appearing that evening.
I do. Counsel is going to seek to create an impression with this jury that it was actually brighter than the judicial notice would give reason to indicate. The point is the condition of the moon on that might, whether it was going to increase the following day or going to decrease the following day, because waxing indicates what will happen in the future, not is what happening on that night. On. That night this was the condition of the moon. That is all the jury needs to know.
Isn't waxing and waning a rather commonly understood term with regard to phases of the moon? Don't you think the jury can figure it out?
They may, but the point is that it is irrelevant. Really waxing refers to what is going to occur. It doesn't matter. It doesn't matter if the moon was going to get brighter at a point in time later that night after a time when the events are no longer in issue. What does that have to do with anything?
And the jury has a modicum of common sense, I assume, and life experience, and they understand what a waxing and waning moon is, so--
--I'm likely to accept. I'm just telling you I'm likely to accept the accurate description. All right.
As opposed to just taking the judicial notice of percentage of the crescent that was--
Your Honor, Mr. Yochelson and I went up to visit with Judge Reid pursuant to the instructions. He will be finished--he will be finished with the original tapes today. He is listening to them all and suggests that for convenience sake, since he will not need them again, they be returned to Miss Robertson and that your Honor issue the order releasing and then retrieving them from the laboratory which we hope will enhance them and make them easier listening, both for yourself and ultimately for the jury. So if that is satisfactory to your Honor, we will prepare such an order, and when he returns the tapes to you, we would like to pick them up and take them over and have them worked on.
Yes. That is fine, your Honor. It is my understanding from Mr. Bailey, and from speaking with the Defense, that the Defense has never had in its possession the original copies of these tapes. It only has a copy that was provided by Miss Schwartz--excuse me--by Mr. Schwartz. If that is correct, we would like to ask that we get a copy of whatever was provided to the Court before it is released to Mr. Bailey and we can cooperate in making those copies.
My understanding is that they have what we have, both furnished from the same source.
The problem is we are assuming that that is what was provided to the Court because neither party has seen the original tapes, so we are simply asking that copies of those originals be made for both sides.
Well, let me see if I can understand. They got what we have because we arranged--I had the lawyers bring the originals down and deposit them with you the other day. Before that the tapes that they tried to subpoena and seize, that was a copy made from those tapes, maybe a second, third generation tapes. I understand that when Mr. Schwartz gave them the same thing last weekend, he gave them the same thing we had.
Well, I suspect--well, Mr. Yochelson, how long do you think it would take to copy these tapes, given the fact that your sound lab has high-speed duplicators?
Your Honor, it would take us a matter of hours, and the point has to be made that before these--before these original tapes are examined, and perhaps altered, a record has to be made of what they were and that is what we are asking.
Mr. Douglas was indicating that the high-speed dubbing may very well add to the distortion, so what we are trying to do and what Mr. Bailey was doing was to go up and ask--we found out last night that you can clear up substantially the background noises, as I told your Honor, and it will make it easier for your Honor and Judge Reid to understand once it is done.
I understand that, but Mr. Yochelson's point is that there ought to be one copy at least of the tape that there is in existence before any enhancement takes place. That probably ought to be made and lodged with the Court in case there is any dispute as to what happened. Mr. Yochelson, as an Officer of the Court in this building, in an expeditious manner, I am inclined to order that.
Well, just--and I don't want to speak cynically. I don't want any of these tapes erased or anything. I want to make sure--
We will make sure that we punch out all the--I take it somebody has already taken the effort to punch out the copy protection.
We will do that, and your Honor, we will invite a representative of the Defense to be present during the copying procedure.
Thank you. We will take a 15-minute recess. And Mr. Douglas and Mr. Hodgman, consult with Mr. Hernandez, and if we need to take some testimony, we will do that at the end of 15.
If a picture is worth a thousand words, then a view is worth a million in these circumstances.
If that cannot be replicated, then we will not have a nighttime view, because that is a crucial lighting source that was within mere feet of Nicole Brown Simpson.
I am not comfortable with some hindsight speculation, given 13 months or 15 months after the time, to attempt to duplicate the precise angle of a central light and the closest light to the actual bodies.
I have the sinking suspicion we are going to spend our Saturday night doing this.
Which I'm sure Mr. Darden will be happy to front for us. / Christopher Darden: No objection, your Honor.