All right. The record should reflect the jury has withdrawn from the courtroom. Two matters we need to take up. We need to take up the matter with the city attorney's office and the motion in limine regarding Dr. Mullis.
And you indicated, counsel, that you wanted Dean Uelmen to be here for the Internal Affairs argument.
Yes, your Honor. My understanding his plane was to be here at 10:10 and we are expecting him any moment. I had Mr. Douglas step out and check. Apparently he is not here yet. And if I can have just a second, I want to inquire about the motion in limine regarding Dr. Mullis.
Because Mr. Uelmen is not here yet, your Honor, we could take up the issue of Dr. Baden's discovery.
Your Honor, what I would propose to the Court is we need, as I indicated to the Court, to utilize the time over the lunch hour to make some decisions regarding order of witnesses. And what I would like to do now is to proceed with the argument regarding Dr. Baden and Mr. Kelberg and Mr. Shapiro. By that time I'm hopeful that Dean Uelmen will be here and we can have the city attorney here and then I would ask the Court to defer.
We can proceed, if the Court wants to, with the Dr. Baden motion and we will be ready for Dean Uelmen and I will ask for a recess at that point, your Honor, as to the other--
That's fine. All right. Mr. Shapiro, are you going to handle the matter regarding Dr. Baden and Dr. Wolf?
Good morning, your Honor, and thank you for giving me a moment or two of your time. I was provided--our office was provided late yesterday evening under an August 8, 1995, cover letter, various notes of Dr. Baden, Dr. Wolf, Dr. Lee, and conspicuously absent from these notes is any note made by either Dr. Baden or Dr. Wolf during the time of Dr. Lakshmanan's testimony. And if the Court doesn't want to take my recollection, I'm sure we have videotape available, but my recollection is both doctors Baden and Wolf had yellow pads on which they were scribbling what appeared to me to be copious notes during the course of Dr. Lakshmanan's testimony, in particular his description of wounds and interpretation of wounds, et cetera, et cetera. This material has not been provided to us and there is no basis on which it becomes privileged. If these are their notes, they are their notes. There is no work product privilege that applies if the witness is to be called. And in fact in California, as the Court is well aware under Izazaga, the only work product privilege that applies is 2018(c) under the code of civil procedure, the absolute work product privilege of attorneys. There is nothing in Izazaga that prevents or allows to, in essence, hide those notes from us and really those are the crux. I'm assuming Dr. Baden is going to come in here and talk about forensic pathology. If he wants to walk in here and talk about stain analysis and DNA and so forth, where the notes that he has provided us may have some relevancy, we may be having an issue as to his expertise, but if he is coming in to talk about forensic pathology, there is almost nothing in his notes, other than a litany of what he saw on June 22nd at the Coroner's office--actually notes of Dr. Wolf during the course of their examination--there is nothing of course regarding findings, interpretations, what have you. Clearly under the lines case, 13 cal.3D 500, it is clear if he is going to be called, even if there were a work product privilege attached, it is waived by the concept of calling him. And as I said yesterday to the Court, I learned to try cases when trial by ambush and one-way discovery was the rule of the day, so I'm not going to stand here and tell this Court I'm not ready to go. I'm ready to go. I could be ready to go in thirty seconds if they wanted to put him on next, but in fairness, if we are going to have reciprocal discovery, if we are going to try and avoid these ambushes, if the Defense is not going to be able to hide this ruse from our evaluation in advance, then I must be down here and ask this Court to impose the will of the People of reciprocal discovery that they provide these materials to us. And again, I know of no legal basis, not attorney/client--because there is no confidential communication between the client and Dr. Baden or Dr. Wolf. This is Dr. Baden or Dr. Wolf taking notes during Dr. Lakshmanan's testimony. So it is all on work product of which there is no work product privilege under Izazaga, and even if there were, under lines it is waived by their decision to call him. So I ask for those notes, any other notes that may exist, and I also ask to preview any boards or charts or diagrams that the Defense intends to use during the course of Dr. Baden and/or Wolf's testimony.
Good morning, your Honor, and thank you. Your Honor, I think Mr. Kelberg is well aware that on June the 14th of 1994 I retained the services of Dr. Baden, Dr. Wolf and Dr. Lee as a consultant. And upon that retention I notified the Los Angeles Police Department that in my opinion these were the leading experts in the country in their specific fields and offered their services to both the Coroner and to the crime lab at the Los Angeles Police Department to aid them in any way that could be of benefit in trying to focus on who the real killers were in this case. That request was turned down. Dr. Baden has been consulting with me on almost a daily basis since this case began and is familiar with almost each and every aspect of the case, including evidence collection, including forensic pathology, obviously. He was the person who found the errors at the Coroner's office that resulted in a report being generated of sixteen mistakes and of the contusion to the brain that was missed by the Coroner. He, like Dr. Lakshmanan, who in the most tedious testimony in this case over eight days is not a person who makes copious notes of everything he does in an overall consultation. He is a conduit between the pathology, Mr. Simpson and myself to educate me so I can hopefully present the points of view to the jury regarding the pathology in this case, the manner and cause of death, and the circumstances surrounding that death. As the Court will note, Dr. Lakshmanan testified he spent 200 hours in preparation, yet he had not a single note, so I don't find it surprising that Mr. Kelberg would be unaware--I find it surprising that Mr. Kelberg now would expect that Dr. Baden has substantial notes. Regarding whether or not the notes that were taken during the examination are discoverable, I would suggest to your Honor that since those were done at my direction and since both doctors were here at my request and since they were aiding me in my presentation of cross-examination of Dr. Lakshmanan, that they are clearly privileged and are not discoverable. And they are part of the work product that I generated along with the doctors recording this case and purely for one purpose, for the cross-examination of Dr. Lakshmanan, so those are not discoverable.
We have had two requests for reports and it is my practice with consultants not to ask for reports. Since they have been working on case for the last thirteen or fourteen months, it would be impossible to generate anything short of a book to be a comprehensive report of all the errors, mistakes and problems that they see with this case, so there are no such reports. As far as the notes that have been taken, I have asked Mr. Blasier to review all the materials. He has done that. He has furnished that to Mr. Kelberg. Mr. Kelberg has been very candid. He is ready to proceed; so are we. They have everything that they are entitled to.
Your Honor, that is, I hate to say this, a very disingenuous response. Is Mr. Shapiro saying that there are not notes that Dr. Baden and Dr. Wolf wrote that are in possession of the Defense and not provided to us? As I understand it, those notes do exist. Now they are claiming work product. Well, they didn't claim work product on the notes they sent across. And it doesn't matter whether Mr. Shapiro is the one that requested their presence here or not, 2018(c) is the only work product that applies in California. And of course Mr. Shapiro can't cite any conflicts with the Supreme Court decision in lines, 13 cal.3D 500, which even in a work product situation, which is what the old policy was when we had one-way discovery--I know the Court is well aware of the what is, 13 cal.3D--that by retaining the expert, by allowing the expert to do work on the case there was a work product privilege that applied. Lines says you put that witness on the stand, you waive the work product privilege as well as attorney/client because there the psychiatrist was evaluating the Defendant, so there was confidential communication. The Defense cannot stand here and say we are not entitled to those notes. I don't care what reason Mr. Shapiro had for having doctors Wolf and Baden here. The point is if they made notes we are entitled to them. And by the way, Mr. Shapiro conveniently does forget that Dr. Lakshmanan provided detailed reports and exhibits 350 and 351 identifying every injury that was observed, trying to identify every error that was found in his review of the autopsies. Apparently doctors Baden and Wolf were unable to do that, and the real reason, as everybody knows, is they want to ambush us and everybody knows. It is not a secret. That is the way the game is played. Is this going to be a game or is this going to be a search for the truth? If Mr. Shapiro can give this Court a citation to a controlling case from the California Supreme Court that says we are not entitled to it, let's hear it, let's look at the case, let's see if it in fact says what he says it will say. Let's see where lines is overruled. It is not. I submit to the Court this is an area I have done quite a bit of review in. I would like to think I am pretty up-to-date in the subject, and I think the Court will find there is no case which says lines no longer applies, in spite of prop 115 and reciprocal discovery. We are entitled to those notes. This should not be a trial by ambush. Whether I have the skill to cross-examine him or not right this moment without those notes is not the issue. What is the issue is the will of the People to see that this is a search for the truth and to get from the Defense the notes that they have. I will submit it, your Honor.
KEY QUOTEAll right. Thank you, counsel. All right. I'm going to direct the Defense to turn over Dr. Baden and Dr. Wolf's notes, if they are to be called as witnesses. All right.
Your Honor, I understand Dr. Baden is going to be possibly on the stand tomorrow morning.
You are welcome. All right. Let's see. Mr. Walsh hasn't made it yet. How about the Mullis issue?
Your Honor, on that issue I think we indicated to the Court we wanted to take the time over the lunch hour to have some separate discussions.
I also requested to see any exhibits that were used that were not already marked. Does the Court order include that opportunity?
Is this going to be a game or is this going to be a search for the truth?
that is, I hate to say this, a very disingenuous response
Dr. Lakshmanan testified he spent 200 hours in preparation, yet he had not a single note, so I don't find it surprising that Mr. Kelberg would be unaware--I find it surprising that Mr. Kelberg now would expect that Dr. Baden has substantial notes.
The real reason, as everybody knows, is they want to ambush us and everybody knows. It is not a secret. That is the way the game is played.