All right. Did you have the opportunity to speak with Mr. Blasier and Mr. Ragle and discuss the matter you needed to address?
Yes, I did. I wanted to address a couple matters before the court before we started, if I may do so.
No. 1, your Honor, Mr. Blasier, I believe--and maybe it was a miscommunication--had told me that Mr. Ragle was not going to be testifying to anything that related to the notes that they turned over within the last couple of weeks in discovery. And I believe--
Well, they covered a wide range of topics. The only one that is relevant for what I'm about to say is notes as to the August 26, `94, Bronco search which--and Mr. Blasier could probably give us--
Okay. There are some August the 26th, `94, Bronco notes and that I believe there is another little sketch that was provided from a viewing in April of the Bronco.
Yes, your Honor, of this year. And I did not know that he was going to testify to that because of the--excuse me. It looks like the date on that is March 14th of `95. I did not know he was going to testify about these things because Mr. Blasier seemed to indicate to me that he was only going to be talking about things that had to do other than the notes. So there has been, without any question, a discovery violation here in my view. I mean, these notes are old and they were just turned over to us very recently. However, I don't think that I can say in good faith that these particular matters, as I understand Mr. Blasier's offer of proof this morning, would require a delay as a sanction and therefore I'm not requesting that, because they--Mr. Blasier has represented to me that the only thing about the Bronco that Mr. Ragle is going to be testifying to is whether or not he could see certain stains on the door. And if that is true, I can't legitimately say that I need more time to prepare on that particular issue, if that is all his testimony is confined to. However, we would be requesting a sanction for the discovery violation in the way of a jury admonition, and this just came to my attention this morning, so I didn't know that I was going to be addressing your Honor on this. The second issue is as to the scope of Mr. Ragle's testimony. The People have previously argued to the Court in a number of different contexts, citing the Supreme Court case of People versus Kaurish at 52 cal.3D 648. In fact, I think I discussed it a little bit last week in another context with respect to Michele Kestler. The language saying that: "We agree that it is--it was not material to any issue in this case. The defectiveness of the evidence gathering techniques in this case, if any, is not measured in comparison to other purportedly superior techniques." In other words, that the issue when we are talking about forensic evidence and evidence gathering techniques is what techniques were used, were those techniques defective in any way so as to undermine the probative value of the evidence. Looking at other techniques that could have been used or other hypotheticals as to how someone else would have gone about investigating a crime scene, while it may be interesting, does not, in the words of the Supreme Court: "Assist the jury in determining to what extent the method employed actually produced probative elements, nor can it help the jury assign a weight to the evidence." My understanding of Mr. Ragle's testimony is that he wants to testify to how the crime scene should have been processed, techniques that should have been used, techniques that he is critical of and so on. And I just think that that kind of wide-ranging inquiry into the overall competence of the crime scene investigation is not probative, in light of this language, unless it is limited and tied to specifically what effect this could have had on the evidence that we actually have produced in this trial. And I don't think that that is the intent, from my conversation with Mr. Ragle, of this testimony and I don't think that he is intending, if I'm understanding what he told me, to say, okay, the effect of this is that now the DNA results are less reliable because of the following, because he is not an expert in DNA analysis, so just to say, well, I don't like the way that they collect it, without being able to tie it to an effect, in my view and I think in the California Supreme Court's view, is not probative and should not be allowed. So there should be at least some strict limitation on his testimony, if not out and out preclusion of his testimony, depending on exactly how they want to structure the testimony.
Good morning, your Honor. Let me first talk about the purported discovery violation. This is a--this is a one-page--actually a half a page handwritten note about the Bronco when they went out there in March to look at it. There was no testing done. Mr. Ragle did nothing except look. This is not discoverable under Hines or any of the other cases. He doesn't intend to rely on this particular note. All he is going to testify about is that the specks that Dennis Fung identified as the specks of blood that Mark Fuhrman described can't be seen or most of them can't be seen once the door is open.
That is the total of his testimony on that point. This is not even discoverable. I think it was given to them last week anyway. It is less than half a page. As to his testimony in general, umm, they have presented through all their witnesses opinions as to whether this crime scene or these crime scenes were processed appropriately or competently. All Mr. Ragle is here to do is to testify as an expert on crime scene processing techniques, to testify as to whether the techniques used in this case were acceptable or not, were competent or not. That is all. It is rebutting the opinions given by all of their witnesses about the appropriateness of the way they did certain things. Obviously if he testifies that it is inappropriate to put wet swatches in a plastic--in a plastic envelope, it is difficult to express that without expressing what is the right way--how you are supposed to do it, what do you need to do to protect the evidence, to protect the integrity of the evidence. I don't intend to spend a lot of time on techniques that weren't used in this case. The primary purpose of his testimony is the techniques that were used in this case or whether they were acceptable or not from a forensic or investigative standpoint.
Well, to respond to the last issue first, it may be possible that the Court simply has to rule on a question by question basis as to Mr. Ragle's--the propriety of Mr. Ragle's answers, because I would agree with counsel that at least in the one hypothetical example that he gave, if he is saying it is improper to put items in a plastic bag and what kind of effect that that could have, that that probably would be subject--a proper subject of testimony. But then if you ask the next question, well, what other techniques can be used, it may or may not be crossing the boundary into the territory that I think Kaurish prohibits, so maybe this is more in the nature of simply trying to state what our position is up front. And maybe your Honor does simply have to rule on a question by question basis on those kind of issues.
As to the discovery violation, if I may, your Honor, and I'm sorry because I did not know this issue was going to come up until literally a few minutes prior to addressing it in court, but on this one page, it is as counsel represented, a page indicating his observations and there is what purports to be a little sketch of the Bronco on it, so it clearly is a report of observations of experts that is discoverable. What I should have brought to the Court's attention that I failed to is that this also indicates that there were twelve photos and they have photographic numbers, and I seem to recall that when this occurred Mr. Ragle did take photographs, and I don't have the photographs of this, so the photographs are a form of documentation of an expert of an observation of evidence.
Yes, and I had no idea what they were up to. I mean, you have to--it is difficult to get into the conspiracy mode sometimes to figure out what is going on, because they were looking at little cracks in doors, so I just thought, these guys are meshugge and didn't know--didn't know what they were up to, so I wasn't particularly watching that carefully what they were observing.
KEY QUOTEThey were there. There were several police officers there. They could have taken any pictures they wanted to.
All right. Well, I believe as Mr. Goldberg indicated in his last comment, that the issue of whether or not Mr. Ragle's testimony will go into other techniques and how far the Court will allow is really a question by question issue by issue subject by subject determination that the Court has to make, so I take that as simply that the Prosecution wants the Court to be on notice to expect those issues as they come up. I take that as a premature objection. As to the purported discovery violation, I find no violation since the Prosecution was in fact present at the time these observations were made. They had equal access to those observations, they could have taken their own photographs. They do have the notes in plenty of time to prepare for cross-examination of Mr. Ragle. None of this is, to my recollection, going to be rocket science, so I think we can proceed. All right. Lastly, counsel, I spent some time over the weekend dealing with the offer of proof regarding the Fuhrman tapes, so-called, and I had great difficulty dealing with it. And Mr. Cochran, do you want to address that issue?
I had no idea what they were up to. I mean, you have to--it is difficult to get into the conspiracy mode sometimes to figure out what is going on, because they were looking at little cracks in doors, so I just thought, these guys are meshugge and didn't know what they were up to.
Looking at other techniques that could have been used or other hypotheticals as to how someone else would have gone about investigating a crime scene, while it may be interesting, does not, in the words of the Supreme Court: 'Assist the jury in determining to what extent the method employed actually produced probative elements, nor can it help the jury assign a weight to the evidence.'
All Mr. Ragle is here to do is to testify as an expert on crime scene processing techniques, to testify as to whether the techniques used in this case were acceptable or not, were competent or not. That is all. It is rebutting the opinions given by all of their witnesses about the appropriateness of the way they did certain things.
I find no violation since the Prosecution was in fact present at the time these observations were made. They had equal access to those observations, they could have taken their own photographs.
He has got to pronounce that word better. Meshuggena.