Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Bailey, Mr. Scheck. The People are represent the by Mr. Goldberg and Mr. Darden. The jury is not present. Counsel, is there anything we need to take up before we--
Your Honor, we were in the process of showing exhibits to the Defense and I don't know if we have shown them all of them yet. We have shown them the boards that we brought down, I think all of which--all of which were completed either on Saturday or Sunday--in other words, completed and delivered to our office on Saturday and Sunday. I would like the opportunity just to make sure I have shown the rest of the exhibits to counsel. What I did want to bring up, prior to that, however, your Honor, is that the court may recall that with respect to a couple of our forensic witnesses, particularly Greg Matheson, there was an order by the court that the People not be allowed to discuss certain exhibits that were going to be used during cross-examination with the witness until those exhibits were used, and we would just like a similar arrangement here.
All right. That is reasonable. Mr. Goldberg, how many of these exhibits have you brought down?
I have all of my exhibits down in court now and it may take a few more minutes just to make sure with counsel that I've gone over my list and I want to be sure that he has seen everything. Maybe I can do that while I'm standing here.
Your Honor, do we have to show pictures of things that are already Defense pictures or already marked? I would assume not.
There were two video clips that we wanted to use. One was a video clip that was taken after the crime scene was shut down on June 13th of a photographer taking some pictures at Bundy.
I don't want to describe it further for the record at this point in time. And another one is a video that was taken on the 17th.
Portions of the second tape were, but not the clips that we are going to show, and may I just check on the other one?
I just wanted to look at to it see what they are talking about before they show it. That is all.
The footage at the beginning of the police walking in and the grieving couple and then the police walking out, I don't remember that.
The footage--the aerial footage of the people walking around the rear of Bundy and the back gate, that I remember as being on the clips. I don't remember where the other clips came from. I don't recall having seen this.
I remember seeing it, but more importantly Mr. Fairtlough tells me that that is where it comes from and I know that he is very familiar with these tapes.
Well, the question being are you going to be able to lay a foundation for the source of this tape and the date and time?
We will be able to lay a foundation for the date and the time just as was done with all of the other tapes that were shown here.
Wait. The way we did that was--we were very strictly limited to laying the foundation through the witnesses themselves. We had to show it to the witnesses who were at the scene and have them acknowledge that that was themselves and those we're events that they saw.
No. Actually that didn't happen at all, your Honor, and that was a major source of contention.
No, Mr. Goldberg. I allowed the videotape subject to the parties laying a foundation for it as far as date and time.
My only question as far as I assume the reason for this is to show that there are other explanations why there may be other footprints around?
Because of the multiplicity of people going up and down that walkway? That is what I assume this is for.
The problem being is obviously we need a date and time as to when these people are walking up and down the walkway. Do you have some of those police who can testify?
I think we probably also have a civilian witness who may be here today, but at any rate, we do.
As an a offer of proof you need to tell me who the people are and what they are going to testify to.
The offer of proof would be that there are police officers that were there at the time that will be able to say that is the 17th, including people like Ron Phillips, including Ron hardy who is one of the civilian witnesses depicted in the tape.
And this is not at all going to be difficult. I mean, these are very unique events that hopefully will never happen again.
No, Mr. Goldberg, the only point I'm making is that you need to make me an offer of proof naming names as to who is going to tell me this.
Yes. It would seem to me that if they want to put this on in terms of the facts and circumstances of what those people walking in--well, it was my understanding, for example, from speaking with Mr. Hardy when we went to visit the crime scene, that he had washed down the front area of all the blood.
Now, the question is, you know, when did these events take place? They are not presumably walking through blood from the front walkway up. All those would have to be examined with some particularity. It seems to me for purposes of cross-examining Dr. Lee it is sufficient to ask him questions about how foot impressions could occur at dates prior to the time that he was there and would that change his opinion. But it seems to me improper at this point in time, given this offer, to allow them to show the tapes. They can put it on in their rebuttal case, they can lay the proper foundation, but it seems to me doing this at this time would be improper and certainly something that we were not permitted to do with any of the Prosecution witnesses. In other words, every tape we had to have a Prosecution witness, be it Detective Lange or be it Fung or Mazzola, who would say, yes, I remember either seeing those people--
That is not correct, Mr. Scheck. A allowed you to use several videotapes on offers of proof that you could establish when they were made and when they came--where they were from, and some of them obviously were self-authenticating, given the events that they depicted. That wasn't necessary.
I thought--my recollection was, is that in each and every instance we had to show the tape to the witness and the witness had to say I recall those events or I was there at that event.
Well, in any event, it seems to me that at this point in time it would be sufficient to simply ask him questions about that that are consistent with that they think these tapes will show before showing these tapes without an offer. That is all.
The second video is a video of--that Miss Clark advises me has already been shown from American Journal that shows a photographer walking on the Bundy walk after the--
Actually I guess there are two tapes. We may have had a miscommunication. One is a tape from American Journal that is People's 101 which shows the police officers rolling up the crime tape and walking up the bloody walk. I think it was originally introduced by the Defense or portions of it, as I recall, with Riske, and showing that the police trampled through and stomped over the blood and so on and contaminated the crime scene and later on the People show that this happened after the crime scene was broken down, so that is one tape. But there was another tape which was apparently then taken chronologically after that which is taken by a photographer or a videographer that shows what I refer to as the second plane of tiles. In other words, the plane of tiles that is immediately west of where Nicole would have been located, and he is walking up and down and he scans back and forth over these tiles and shoots into the apartment, and you can see some of the letters still intact, the chalk letters from the crime scene. Crime scene is closed. You can see some of the footprints on the walk and you can see this photographer's foot--feet coming into contact with the walk of course.
We lay the foundation for this exactly the same way that we lay the foundation for the sequence of tapes that the Defense first showed of Dennis Fung going in and out of Rockingham. That is circumstantially, just as they did.
Well, you can see a photographer walking on the walkway. You can see chalk marks on the walkway with letters on them. You can see some of the Bruno Magli shoeprints on the walkway.
You do actually have to look at it more than once to catch all those features, but they are all there.
Well, Mr. Fairtlough tells us this was provided in video clips provided to us by the Defense, and no, we do not have a source other than that. But the point is, your Honor, that it is obvious it is after the murder because we have chalk marks. It is after the murder because we have Bruno Magli prints and it is before Henry Lee did his examination, and that is all we need to show circumstantially for these purposes.
How would the candles still be burning on June the 25th inside the apartment? And also the--the--the prints at the location weren't as--
You see the Bruno Magli shoeprint--this is a very poor quality videotape. Let me see this again, Mr. Fairtlough.
And on the June 17th video you can see that they did some clean-up, and these look fairly pristine, the Bruno Magli prints.
Well, your Honor, if the court is--you see, I have been out to the scene now about a half a dozen times and I've been out there with those photographs and I am familiar--very familiar with that Bodziak chart and you can figure out exactly what tiles various prints are on. It is fairly easy to do. Our chart is laid out that way. And if you concentrate on those tiles, and you can tell which tell numbers they are from that photograph, too--
Just to show that there is some videographer who is running up and down the walkway taking pictures? Is that the point?
I think that this particular one certainly is--based on this offer we have no way of knowing exactly when this picture was taken, who was there, how they were working, what their shoes were like or anything to that effect, so I don't think that based on this offer it could be used at this point for impeachment.
I don't think it is for impeachment. I think it is for cross-examination; did Dr. Lee take this into consideration, the public access to that walkway immediately after the crime scene was processed. I think that is the issue.
Well, I think he can ask that question, but it seems to me that it would be--without knowing when this was taken and what was involved at the time, it seems to me that it would be certainly a 352 problem with respect to showing that to the jury.
But aren't those--isn't the depiction of the candles still burning pretty key indication as to what, when, where and why?
Maybe. I understand that there were even some instances where certain television people went back and did pictures with recreations and may have relit the candles. I mean, I don't know. We haven't been able to authenticate precisely that tape either.
KEY QUOTEWell, your Honor, this is kind of funny because we showed the videotape of--to Riske of someone tromping up the walk based on the same kind of circumstantial argument, only there wasn't anything really to say when it was the defense. The Defense simply wanted to infer, even though Riske, didn't see those events.
Have you made any efforts whatsoever to locate somebody to lay a foundation for this?
Yes, we have started making efforts, but as your Honor knows, we were jammed with the tremendous amount of information at the last minute, and I have been working full-time on this everyday.
I realize that, but as the court can appreciate, my attentions have been distracted to other things. Your Honor, the way that the court should view these kind of problems is what sorts of arguments can be made and what sorts of inferences can be reasonably drawn from the evidence by the attorneys at the time it is argued. Miss Clark is going to be able to say, look, we know when it was taken because there are chalk marks, there are Bruno Magli imprints. She is going to be able to correlate it back to our chart a hundred percent to show that this was taken after the murder. She is going to be able to point out to the candles to show that it was taken before the 25th of June, and also show the evidence that the walkway was walked--was washed down and therefore the chalk marks wouldn't have appeared, also showing it was before June 25th. What is Mr. Cochran going to do?
I thought there was some evidence about him washing it down, but at any rate--at any rate, your Honor, what is Mr. Cochran going to argue? Maybe this wasn't--
Well, at this point it is not relevant as to what Mr. Cochran is going to argue or not argue.
No, no, counsel. That is not the point. The point is if you tell me you are going to bring in Ron hardy to say that he washed down the walkway and washed down the blood and washed away the chalk and that this--then this videotape took place prior to that, then I will allow this. If you can't make that representation to me, then I'm not going to allow it. Take your pick.
Your Honor, we would like to confirm how far up the walkway he washed before I make that representation.
On the factual representation, I just want to make this point to the court. You should know--
Let me put this on the record before they make their representation just so it is clear, and that is it is my understanding the chalk marks were visible all the way to the 25th, all right, and in that walkway area. In addition, when we were at the scene for our last visit prior to the night viewing matter, I had a discussion with Mr. Hardy, and I think it is also in the so-called murder book, about what he washed down and what he didn't, and I think it is perfectly apparent and it is what he told me, that he washed down the front area, all right, the lower plane near the closed-in area, he did not wash down the other walkway. That is clear, because even when Dr. Lee was looking there on June 25th there are still imprints of Bruno Magli shoes, so I don't see how they can make this representation that he washed down that entire walkway area, because I think that on the face of it, that is impossible.
Counsel, I find the fact that the candles are there burning and the prints are still there and the chalk is still there pretty compelling circumstantially, so I'm going to allow it.
KEY QUOTEThe candles are the only issue, but I'm--I can't--how do we know that those candles--
Yes. There is one more chart that I wanted to use that has been bar coded and it is called "Four-way linkage." It comes from Dr. Lee's book "Crime scene investigation." Can we put that up just so they can see that?
I know it is not a big deal, but I want to give counsel notice of it. It is on page 80.
All right. Nothing too surprising about that since it comes from Dr. Lee's works? All right. Anything else that you need to display?
--with respect to the offers on the footage that was seen before, I take it that--have you ruled on the--I take it you made a ruling on the one with the candles?
Just with respect to those, it seems to me that without any showing as to footwear or if they made any efforts to figure out what the footwear was and what the situation was with respect to blood on what I guess they are saying is June 17th is the offer, as I understand it, it seems to me at this point in time it would--it is a 352 problem. I think it is more prejudicial than relevant at this point. It seems to me that it is perfectly okay for them to ask whether Dr. Lee has considered who has been to the crime scene, under what circumstances on previous occasions and would certain things make a difference, but to show him a tape like that, without any foundation that we have at this point as to exactly what they were wearing, what the circumstances were, what the clean-up was of the area, it seems to me, before they put on those witnesses, unfairly prejudicial.
All right. I'm going to overrule the objection subject to the offer of proof by the Prosecution that they can produce a police officer to lay the foundation for that particular videotape.
All right. Let's have the jurors. Also, as a matter of scheduling, counsel, we have a juror dental appointment Wednesday, the 31st. That requires us to conclude at 3:15 on Wednesday, just for your scheduling.
I spoke briefly with Mr. Goldberg this morning because I don't want to have any more down time if we can avoid it, and he indicates he perhaps will finish with Dr. Lee in a half day. The court is aware that you had earlier said we would do--you are smiling. We would do the McKinny matter tomorrow morning. We have another witness we have given the Prosecution I think that will be here for this afternoon. Today is a five o'clock day, right? I'm trying to use as much time as possible. Did the court want to do the McKinny tapes this afternoon? Is there a possibility of that?
All right. We will have one other witness today and we will have a Chicago witness coming tonight.
If you tell me you are going to bring in Ron hardy to say that he washed down the walkway and washed down the blood and washed away the chalk and that this--then this videotape took place prior to that, then I will allow this. If you can't make that representation to me, then I'm not going to allow it. Take your pick.
I think it is also in the so-called murder book, about what he washed down and what he didn't, and I think it is perfectly apparent and it is what he told me, that he washed down the front area, all right, the lower plane near the closed-in area, he did not wash down the other walkway.
She is going to be able to correlate it back to our chart a hundred percent to show that this was taken after the murder. She is going to be able to point out to the candles to show that it was taken before the 25th of June.
I find the fact that the candles are there burning and the prints are still there and the chalk is still there pretty compelling circumstantially, so I'm going to allow it.
Maybe. I understand that there were even some instances where certain television people went back and did pictures with recreations and may have relit the candles.