All right. Thank you, counsel. I just want to make sure we have witnesses and our scheduling together. Miss Clark.
Yes, your Honor. With respect to the Court's order we filed today concerning the difficulty in locating those passages on the tapes, I should indicate to the Court that with respect to the first entitled segment of the Court's order, "Racial epithets," all of those portions are not on tape. That tape has been destroyed. All we have is Laura McKinny's transcript, quote-unquote. It is not a verbatim transcript. I believe that is the same problem that you are going to find with the incidents of misconduct.
I'm not going to argue. I'm just informing the Court that you will not find it in the transcript because there is no tape.
That goes to weight that I have to accord it to see whether it is trustworthy, reliable.
All I am alerting the Court of is if you are listening for this on tape, you will not hear it. None of this is on tape.
With respect to the verbatim transcript, we have prepared verbatim transcripts of the all of the tapes that exist and we agreed with the Defense, I agreed with Mr. Bailey last week, to furnish them a copy of our transcript if they will give us a copy of theirs, and we agreed on that.
I could also request whatever the Defense is giving to the Court, they furnish a copy of that also.
No, this is on the discovery of Dr. Lee. You can take this up now, you can take this up--
I would like to finish the Fuhrman tapes first. We have counsel for Miss McKinny here who faxed to the court and I think counsel a letter indicating their concern that transcripts of these tape-recordings have leaked out. Gentlemen.
Good morning. We are here to follow up on that letter that we wrote to you. We are concerned about these persisting violations of the court order. As the Court may or may not be aware, last Friday morning the Los Angeles times printed an article that contained a verbatim portion of our client's protected intellectual property. And furthermore, the Reuters news organization transmitted over the wires across the country for everybody to see additional portions verbatim of our client's protected material.
Do you know the source of that? Is there any court document that may be the source of that?
We suspect that it could have originated from the Defense's offer of proof, but we are not sure, but the giving of this information to the media at this point in time, especially since nothing has yet even been ruled admissible, is obviously in direct contradiction to this Court's protective order.
And there have been three sets of our client's material that have been disseminated during these proceedings. The originals went to the court and we tendered a complete copy to the Prosecution and a complete copy to the Defense. Therefore, the people responsible for violating the court order are here today, and this Court shares with our client a vested interest in the enforcement of this court order. Obviously our client is interested in protecting her propriety interest. But this Court has to be concerned about the challenged to its authority that has occurred. If this challenge does not go unanswered, then perhaps the dominion of the Court could be threatened and the force and effect of future rulings of this Court could be affected. And therefore we are asking this Court to request the attorneys on both sides to conduct their own investigations and try to find the source of these leaks, and if they are unsuccessful, by perhaps close of business Wednesday or Thursday, we would like to ask the Court to conduct an evidentiary hearing wherein Mr. Regwan and I will be able to conduct direct examination of the journalists who carried these stories throughout their organizations. And the news shield, the shield law will not pose a problem, your Honor, because the shield law will not protect officers of the court from violating a court order. If the shield law is raised, umm, then it would unconstitutionally impinge on the independence of this judiciary and so the shield law will be inapplicable. We have done the research. It will be a very easy proceeding and we will just bring in a couple of reporters point blank and ask where did you get this information from, and they will be able to tell us.
Mr. Schwartz, do you have a copy of the Defense offer of proof that was filed late last week?
All right. My staff compared that offer of proof with the quoted passage from the Los Angeles times article. I did not read the article myself; however, they showed me highlighted portions and they appeared to come from the offer of proof. What I will do, Mr. Schwartz, I will--first of all, I'm going to direct counsel on both sides to file all documents with regards to this issue with the Court under seal.
Secondly, Mr. Schwartz, I'm going to direct that the clerk of the court give you a certified copy of the offer of proof so you can compare it with the news leaks and we will see if we can at least pare down what the source--probable source is.
KEY QUOTEWould you like me to reappear after I have had an opportunity to review the offer of proof?
Yes. You can notify the Court of your position by mail, as we are going to be busy with other witnesses.
Just one other thing, your Honor. I just got a call from Mr. Douglas about Dr. Reichardt. He is scheduled for tomorrow morning and we cannot get him here today at all, neither he or his lawyers.
Well, I think we are being optimistic if we think we are going to finish with Mr. Ragle today.
I want to bring up the Dr. Lee matter maybe after we break or maybe just before we begin in the afternoon to set the discovery issue straight. We had some discussions about that this morning.
All right. You handed to the Court, Mr. Scheck, a number of copies of your upcoming photo boards.
Yes. Your Honor, the--what has happened is that Dr. Lee I guess over close to a month ago filed a report in this case. We have turned over all the notes. We turned over to the Prosecution Xeroxed copies of photographs taken at Albany and other photographs that they previously had from Dr. Lee, and photographs from these boards, some of which, many of which are their own photographs. I should note, with respect to the Albany photographs, that they had a photographer and they had a witness on the scene for everything that was examined in Albany, so they have their own copies or an opportunity to look at those pictures.
In any event, there is one, I believe one, maybe two, but one more board that is not reflected in those copies which I know is arriving today that is just a blow-up of other pictures that are contained within those boards and other pictures that the Prosecution has had available to it. The--Mr. Goldberg this morning--now, the other thing, that there was mention of access to Dr. Lee and opportunities to talk to him and find out about his testimony and that was broached by Mr. Hodgman and others at the crime scene. What you should know is that the Prosecution--we have a difference--and I will just chalk it up to misunderstanding--that I had communicated to Mr. Goldberg that when the Prosecution talked with Dr. Lee, because he is always available to talk with the other side, that is his policy, it is a standing policy, that I wanted to be on the line so that we could have a record of it. He doesn't recall it and that is fine. I don't want--I don't want to dispute that. That is not an issue. They did, I believe, speak--they sent some questions to him. He was in Indonesia. They spoke with him about two or three weeks ago, then--
He does. Then the--Mr. Hodgman and Mr. Goldberg, I believe, had a fairly extensive conversation with him, either Saturday or Sunday, they can tell you best. I know from Dr. Lee that--
--Peter de Forest, the rebuttal witness, went over those boards with him on Sunday.
The bottom line is they are saying to us this morning that until--that they demand photo pictures of every photograph that we turned over in the Xeroxed materials. We only have one set of the Albany photographs. I offered to let them have any particular Albany photograph that they wanted. I have for them photographs of all pictures on the boards, plus they have a copy of the boards, plus Dr. de Forest spent four hours with Dr. Lee in his home yesterday going over the boards and going over his testimony, and Dr. de Forest is their expert and their rebuttal witness. More than this we can't do. I can endeavor to try--
Those are color Xeroxed and they are terrific, so I don't know what else it is that they want by way of discovery. I guess, you know, I'm unfamiliar with rules in this jurisdiction extensively, I guess, but the only other thing they could possibly want is for me to open up my files and show them the entire work product. This is unprecedented in my experience as a criminal defense lawyer. They have had an opportunity to talk with this man, to see every picture, to look at everything he is going to say prior to his testimony, go over it with a fine tooth comb.
Well, I want more, your Honor, and I would have liked it much, much earlier. And I am not prepared to give an in-depth argument on this issue right now because I don't have any notes as to dates and when I received things. The generality is that the Defense has dumped an enormous amount of documentation that is relevant to Henry Lee within the last few weeks relating to a number of different examinations of different items of evidence, and basically his testimony is going to cover the gamut of almost everything that came from the crime scene. So I would like to make at some point a much more extensive argument, obviously it will have to be in the very near future, because of discovery sanctions, because it has impaired on our capacity to be ready. And I'm simply not prepared to say now, well, this report came from an examination in February and we didn't receive it until just two weeks ago. I just can't do that at this point, but I will be able to.
I will try to get it together as soon as I'm out of court on Mr. Ragle. You know, I worked all day on Saturday and Sunday on Henry Lee and trying to prepare to the best of my ability with a great quantity of material. Now, the photographs that are being referred to counsel has told come from a variety of different examinations. Some of them were from the Albany trip, some of them are from the LAPD examinations.
Well, Mr. Goldberg, forgive me for interrupting you, but if you are not prepared to address the issue at this point, why don't we start with the jury with Mr. Ragle, at least give them something to do today. You and your other people that are assisting you can put together the items and we can take it up at that time.
The only reason it might be helpful to address this now is on the very limited issue of the photographs, setting everything else aside. I asked counsel for the actual photographs and he said that the color Xeroxes are sufficient. That might be helpful to resolve now because it will probably take them some time to provide those to me if the Court feels that the People are entitled to them, so the Court might want to decide that now so that they can get those photographs to me as quickly as possible. Now, the reason why we believe we are entitled to the actual photographs, as opposed to Xerox copies, color Xerox copies, is that in this case, as the Court knows, we have put photographs up on the elmo and very frequently the Defense will point out to some little speck somewhere or the absence of some speck somewhere or staple holes in the case of that exhibit, and hinge a massive theory of the case around the existence or nonexistence of that speck. These photographs are purportedly examination quality photographs of things like impressions of things like hair and trace material in soil and the like.
Well, there are approximately, and counsel could give you a more accurate estimate than I could, approximately I would say fifty pages of discovery containing photographs and each page contains two or three photos and Mr. Scheck perhaps has quantified that.
I can get to the point. Maybe we can solve this. Every photograph that we intend introduce into evidence and that is on those boards they can have. Just so you know, the dispute is that we gave them more, we gave them photographs from Albany--and I thank them for pronouncing Albany as Albany--we gave them that. So now what he is saying is I want photocopies, not Xeroxed copies of all these other things that you are not going to introduce that you gave to us which you didn't have to give in the first place. Now, I only have one set of those at the present time in terms of photographs and I gave him Xeroxed copies of it and I have said to him--
These are color Xerox copies and they are terrific. And I said to him, if there is any particular one of these photographs that we don't intend to introduce into evidence--he is going to get all the ones which we intend to introduce, which I submit is our only legal obligation here--if you want another one of those and you need to see it, I will give you that print, so--
Seems like a non-dispute then. All right. Settle it over the lunch hour, give him whatever photographs he wants that you are not going to use.
With respect to the first entitled segment of the Court's order, 'Racial epithets,' all of those portions are not on tape. That tape has been destroyed. All we have is Laura McKinny's transcript, quote-unquote. It is not a verbatim transcript.
If this challenge does not go unanswered, then perhaps the dominion of the Court could be threatened and the force and effect of future rulings of this Court could be affected.
My staff compared that offer of proof with the quoted passage from the Los Angeles times article. I did not read the article myself; however, they showed me highlighted portions and they appeared to come from the offer of proof.
That man sure gets around, doesn't he?