All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Uelmen. The People--and Mr. Douglas. The People are represented by Mr. Kelberg, Mr. Goldberg. And also present is Arthur Walsh from the city attorney's office, and I'm sorry, counsel--
Good morning, your Honor. With me today is Mary Thornton house, assistant city attorney. Miss house is going to be covering for me in the next couple of weeks while I am on vacation in case issues arise.
All right. Thank you, counsel. We are here for a hearing on the showing of materiality on a subpoena request for certain documents alleged to be in the custody of the Los Angeles Police Department. And the issue that has been left for this Court to determine is whether there has been an adequate showing of materiality to justify the request. The Court has received this morning a declaration by counsel, Mr. Uelmen, which is four pages in length, which the Court has read and considered. Mr. Uelmen, I will hear any additional comments that you may have.
Your Honor, in the declaration we have attempted to summarize all of the evidence, most of which is already in the record, with respect to the issues that we believe this report is material to, and those issues include whether the criminal investigation of these murders was an objective search for the truth or whether it was a rush to judgment in which only evidence that supported a preconceived conclusion of Mr. Simpson's guilt was actually pursued; whether evidence in this case was deliberately tampered with or manufactured. And we believe that a strong inference of such activity would arise if LAPD officers or personnel were confidently leaking results of DNA tests that had not yet been conducted. Thirdly, whether leaks by the LAPD were an attempt to obstruct justice by influencing potential jurors at the time that jury selection in this case was proceeding. Fourthly, whether any witness in this case testified falsely by denying complicity in either a conspiracy to frame Mr. Simpson or a cover-up of misconduct by other members of the Los Angeles Police Department. And finally, whether unauthorized persons had access to the test results to leak them. We believe it is a fair inference that if unauthorized persons had access to confidential reports summarizing test results, then they may well have also had access to the evidence itself and could have tampered with it, since we are told the reports and the evidence were being kept in the same location. I would also ask that--
Where in the record does it show that the evidence and the reports were kept in the same place?
The faxes to SID that also were leaked and appeared in the Los Angeles times before they went to the Prosecution and the Defense had been faxed directly to the SID laboratory to Michele Kestler. So you know, if there is some--if there is some argument that some--and this argument has been made by Mr. Goldberg--that this could have been an interloper, if interlopers had access to the SID laboratory for this purpose, there is an inference that they may have had access for other purposes as well. We of course would contend that all of these issues are essentially the same issues as to which the testimony of Tracie Savage and Joe Bosco would be relevant. And in light of the crossover really between this motion and the motion with respect to piercing the newspaper shield law, would ask that this declaration also be considered for that purpose, for purpose of the newspaper shield law motion. And in terms of crossover, if the Court does have an opportunity to examine the Internal Affairs report, that report should also be considered for whatever relevance it may have to the reporter shield law issue in terms of alternative sources.
I am not at all familiar with the facts of this case and so I accept the representations of Mr. Uelmen regarding the facts as being correct. I have no reason to doubt them. Certainly lays out a lot of facts regarding evidence and reports to the press. What is noticeably missing from this declaration, however, is anything that ties those facts to the Defense's desire to find out what Internal Affairs may have learned when it looked into those leaks, assuming that it did. There is no demonstration that anything regarding Los Angeles Police Department or the source of the leaks has any materiality to the issues which I believe are present in this case. I find the format followed in the declaration to be significant of the logical gaps. After making a series of direct factual statements, Mr. Uelmen concludes his four-page declaration by posing five questions. Did this investigation support a preconceived conclusion? Was evidence planted? Were the attempts to influence? I don't know the answer to that. Apparently not only does the Defense not know the answer to that, but they don't even have a good faith belief in what those answers might be because they do not articulate that they have a good faith belief that any member of the Los Angeles Police Department in fact was responsible for the leak or in fact had some nefarious motive for being involved in leaking this. And this is what is absolutely missing from this and what that is necessary for is to show materiality between what might be contained in the Internal Affairs report and the theories of the case being presented by the Defense. One of the major cases on the issue of materiality is the memro opinion--I don't have that citation in front of me--but California Supreme Court case in which an individual sought discovery of police officer practices of abusing prisoners and coercing them into confessing and then covering up their illegal behavior. And in support of the request for discovery in that matter, the Defense attorney presented affidavits in which other criminal defendants reported having had similar events occur to them. And despite having presented this firm affidavit, the trial court declined to order discovery. Our Supreme Court said that there was more than enough presented in that case to demonstrate the materiality of the matters presented. In this declaration there is absolutely no suggestion that at any time any member of the Los Angeles Police Department in this case or any other case has engaged in leaking information for the purposes which apparently the Defense wants to put forward. Basically the Defense here is bootstrapping the fact that this is almost certainly the most publicized criminal case in modern history, a case which has drawn more media attention and been subjected to more media pressure than any case that anyone else has ever had any contact with. And having observed that, it is subjected to that kind of pressure, stated, well, this proves that LAPD must have some ulterior motive in being subjected to this pressure. If the Los Angeles Police Department in other murder cases and if the Los Angeles Police Department in other criminal investigations had developed even a bad reputation, a minor reputation for engaging in the kind of conduct that the Defense suggests occurred in this case, then perhaps there might be some justification. If the Defense alleged that the police department had pattern and practice of engaging in leaks and planting evidence and framing individuals, then there might be some justification for intruding into the confidential material here. All of that, however, is completely lacking from this declaration, and I would urge the Court to find therefore that it lacks the necessary materiality.
All right. Do the--does the District Attorney's office wish to be heard on this issue?
I know we have discussed this on I think two prior occasions, the issue of materiality, so I will try not to repeat any of the previous arguments that we have made, both orally and in writing. But there are a couple additional comments that I would like to make in light of Mr. Uelmen's declaration. Basically the declaration I think can be divided up into two sections. The first one would be everything before the last page that has the outline of the questions a through E. The second one being those list of questions that Mr. Walsh discussed.
With respect to the first part of the declaration, your Honor, the People have not argued for the purposes of this motion that the Defense is not entitled to pursue the theory that the evidence on the socks or the socks themselves were planted. Obviously they are entitled to do that and they have been doing that. What we are questioning is whether or not the evidence that they would like to introduce in the--as to the alleged leak, if indeed it was a leak, has any probative value or any materiality as one of the fragments of evidence that they want to introduce for the purposes of making that showing. Therefore, I don't want to argue extensively about the parts of the declaration and what I have characterized as being the first part, except to point out just one thing, and that is that with respect to paragraphs 4, 5 and 6 of the declaration dealing with the circumstances under which the socks were collected, when Mr. Uelmen last addressed the Court on this issue, he specifically stated that the Defense was not claiming that the socks themselves were planted and therefore the issue about when specifically they were picked up did not go to the question of planting but went only to the issue of whether or not the socks were properly collected and properly documented, which should be more of an evidence collection issue. So they did appear to be mixing apples and oranges here and appear to be analytically imprecise with the Court in identifying exactly what facts go to which issues, because this fact does not go to the question of planting. And I would say that clearly the issue of the leak also does not go logically to the question of planting. So it is a question, your Honor, of identifying what are we trying to prove or what is the Defense trying to prove and does this piece of evidence in question have a tendency in reason to help them prove that? Now, in the second part of the declaration on the list of questions that that they articulated, A through E, I have divided those up into three categories. Category no. 1 is what they labeled as the rush to judgment. That is paragraph A. Then the second category I have is paragraph C which are the--the supposed efforts by the Los Angeles Police Department to obstruct justice. And then I have labeled everything else as argument no. 3 and that goes to the planting issue, and I would suggest that that is the only one that the Defense should be discussing at all, that the others are complete red herrings. First of all, as to the question of rush to judgment, we have stated, and I would just like to state one more time, I know that there has been some evidence that has been introduced, some questions along these lines, I don't know whether they were objected to by the People at the time, but the issue of the subjective reasoning processes of the Prosecution, including the Prosecutors themselves and the detectives, is entirely irrelevant. The whole issue of rush to judgment, if it refers to subjective reasoning processes of police and Prosecutors, is not a relevant admissible issue in and of itself. If it were, we would be entitled to testify, the Prosecutors in this case, as to why the case was filed, what our filing standards are, how we personally assess the evidence, or we would be able to call an expert witness like a police officer for the purposes of showing how a reasonable police officer would assess those kind of issues. That clearly is not admissible in any criminal trial. The issue is whether a jury, objectively viewing this evidence, believes that it is sufficient. Whether I think it is sufficient, whether Detective Vannatter thinks it is sufficient, is entirely irrelevant and inadmissible.
And I think the entire issue of rush to judgment in and of itself is not a real or legitimate issue; therefore, since that issue is not a legitimate one, any evidence that theoretically supports that issue is not admissible and is not material. Aside from that, I would suggest that the issue of the leak itself, even if we were to conclude that rush to judgment was a legitimate issue, doesn't really logically relate to it. How does the fact that someone has either negligently or intentionally released information relate to whether or not objectively they should have concluded that there was sufficient evidence to prosecute the Defendant in this case? The second argument that I would like to discuss that the Defense makes is this issue of paragraph C where they say that the leaks would evidence an attempt to obstruct justice by influencing potential jurors. At the heart of this argument, and in fact the heart of the third argument that the Defense makes on the planting issue, seems to be the assumption that a leak or a statement to the police--by the police to the press or by the Prosecution to the press, is somehow improper, which has been an unstated assumption that we have all made in all of our discussions to date. The fact is, is that under the California rules of ethics that apply to lawyers in our state, we don't have a provision dealing with communications by lawyers to the media. Therefore, if the lawyers themselves were to run out onto the courthouse steps and say, "Oh, there is great news, we have just found Nicole Simpson's blood on the socks," we would not have violated any ethical provisions in doing so. We would not have violated any court order because my understanding is that the Court never did employ any kind of a gag order. We would not have violated any rules of law in doing so. We would have only violated a custom that we have in our office of not engaging in that kind of an effort to try one's case in the media. But clearly the Defense, on a number of occasions, including with respect to the Mark Fuhrman issues that the Court will probably be shortly confronting, has repeatedly disclosed these kind of materials to the Defense--to the media and they have not violated any rules of ethics in doing so. I don't think that they would claim that they have done anything improper. So there is nothing, per se, improper under current California rules of ethics in making disclosures to the press, even though individual Prosecutors or individual Defense attorneys may feel that these kind of things should not be done. If the investigating officers did the same thing--I gave the Court a hypothetical where someone in the elevator was overhearing a discussion between Lange and Vannatter and then repeated that to the media and suggested that there is no conceivable theory of admissibility of that kind of disclosure, but let's say Lange and Vannatter themselves made the disclosure to the media, there might be individual police officers that would criticize that decision and say that it was improper, but still they would not have violated any rule of ethics, any rule of law.
Isn't that sort of implausible since Lange and Vannatter, given their experience as police officers, would know the difference between PGM subtyping and DNA results?
I really don't know, your Honor. I mean, let's say--I mean, we have to discuss this thing almost on a hypothetical level because the Defense hasn't come forward with any specific concrete facts as to materiality. So let's assume that what happened is that they received a call from Mr. Matheson or Michele Kestler or both and they said, well, we have just done PCR--we have just done some genetic testing or testing for genetic markers on the socks, and according to our tests the PGM results would include Nicole Brown as being a contributor to the stain. And they interpreted that, well, PGM, DNA, it is both three initials, it is genetic markers, it is Nicole Brown, and immediately excitedly disclosed this to the press. I would suggest that although that would be perhaps a very curious set of circumstances and may be a careless set of circumstances, it wouldn't be a legally admissible set of circumstances, any more than the Defense disclosures to the press are admissible.
The admissibility of that before the trier of fact versus a preliminary finding of materiality in a discovery issue.
Well, would it be material? I would suggest it wouldn't be, even if it were by the investigating officers themselves. It is not material on the issue of an effort to obstruct justice and it is not material because there is no rule of law or ethics that had been violated under my hypothetical in making that disclosure, so it does not go to the issue of an effort to obstruct justice.
So the point that I'm making, your Honor, is I can't conceive of a scenario, even if it were the investigating officers themselves, where the evidence that the Defense seeks would be material on the issue of an effort to obstruct justice. It wouldn't be if the Prosecutors disclosed it or the investigating officers themselves, and certainly it wouldn't be if someone who was a police officer but not involved in the case made this disclosure. And then as to the third issue that they have discussed, what I have labeled as the third issue, being the issue of planting of evidence, in paragraph E they say that it is reasonable to infer that a person with access to the test results also had access to the socks. Well, first of all, what we are talking about is the PGM test results in this particular case. And the people that had access to those were the Prosecution, because we had been told of them, the investigating officers, the laboratory and we don't know who else, in addition to those people. We don't know for sure--can't reconstruct at this point in time whether that might have been told to the Defense attorneys orally. We certainly don't know what kind of individuals may have overheard that information, but it is a very wide circle of people that had access to that information. And clearly the Prosecutors did not have access to the socks. Detective Lange and Vannatter did not have access to the socks. There are no uniform members of the police department that had access to the socks, so this is just plain false. But as has been repeatedly argued by the People and by Mr. Walsh, there is no logical connection between the idea of the so-called leak and the issue of evidence planting. I think it is what logicians call a fallacy of the assumed premise and that is that what they have said is there is a leak; therefore, it is more likely that evidence was planted on the socks. But in order to make that argument, you have to show a logical connection between the two or a nexus between the two, if you will, and that nexus is entirely absent because why would someone, if we were to infer it was someone who had access to the socks that leaked this information, why would that person, knowing that there had been evidence planted on the socks, then not only want to leak information to that effect, but leak it incorrectly and therefore perhaps undermine any probative value that that evidence would have subsequently, to the extent that--that the public learned that information that was incorrect, was being leaked by the Los Angeles Police Department. It simply doesn't make any sense that someone who had planted the evidence on the socks themselves or had knowledge of it would want to do that. And clearly if the person that is responsible is not an individual with access to the socks, then there is no conceivable argument showing a nexus between the so-called leak and evidence planting. So if the Court is very systematic in going through point per point the three arguments that the Defense has made as to materiality, in this systematic way I think the Court should conclude and will conclude that there is no materiality to the question of the so-called leaks in this case, that it does not prove any fact that the Defense is entitled to prove in this case. Thank you.
Mr. Uelmen. I'm particularly interested in the last point that Mr. Goldberg makes, that access to results does hot necessarily imply access to the evidence itself and his implied argument that the access to the results here is not--not proven.
Because the misinformation that was disseminated, rather than the accurate information, would indicate to an objective person that the person didn't have access to the results.
Let me address that issue first then, because the suggestion that the report of the investigation into the leaks would be material in this respect is really an alternative argument. What we are suggesting, your Honor, is that the--the evidence of where the leak came from is going to be relevant and material in either alternative. If the leak came from the LAPD, it is going to be material to the evidence we have already presented in this case of the planting of evidence. I mean, we are not dealing with--with remarkable coincidence. We are dealing with the concurrence of two events that we believe there is a very strong inference of a relationship between those events. One, the appearance of bloodstains on the socks long after they were collected and the first results of the testing of those socks, and at the same time, the appearance in the press of accounts of tests of those socks that had not yet been conducted. So if we link the leak to the LAPD, I think we have a very strong inference that these two events are related, but alternatively--
Let me ask you this question: When you say we "Link" this to the LAPD, I mean are we talking about some p-ii in the elevator who happens to overhear a conversation and that establishes a substantial link to the LAPD?
And my answer to that is either way; either way. If it goes directly to people who are involved in the investigation, we have a very strong inference of direct evidence planting.
Well, if it did, if it did, we have a real problem in terms of security and chain of custody. I mean, what we are saying is even if we don't link this to people directly involved in the investigation, the mere fact that a p-ii in the elevator gets access to test results suggests that the kind of security that the Prosecution would believe has enveloped this evidence and protected it and maintained its--its sanctity and purity is not believable because a p-ii in the elevator can walk into the SID and get test results. And that is--
Well, what I'm suggesting, your Honor, is that there is--there is an alternative here, and either way that it comes out, we have material, relevant evidence that the jury is entitled to hear. On the one hand, if it is linked directly to LAPD officers or laboratory technicians who were involved in the investigation of this case, or if it turns out the leaks came from some unauthorized person who got access to this information from the LAPD. Either way, we believe it is material and that is the precise point. The question of the issue that Mr. Goldberg suggests mixes apples and oranges, for example, the question of the actual collection of the sock, goes right to the point of the issue of the security with which this evidence was maintained. That is, if we can't even trust the accounts of the criminalists who collected the evidence, if we can't trust the records they maintained as to when that evidence was picked up, then how can we believe the evidence that they are presenting with respect to the security with which this evidence was maintained? We are dealing essentially with a--with a chain of custody issue here in terms of whether the evidence is even credible that this evidence was protected and secured against tampering by unauthorized persons, and that is the relevance. And it ties directly to the issue of whether there has been evidence tampering. The fact that this very same evidence, whose integrity is being questioned, was sloppily handled from start to finish, and that is the relevance of the circumstances regarding when the socks were picked up. I want to respond very briefly to Mr. Walsh's points. Essentially he is criticizing the affidavit because it doesn't come to a conclusion about what we believe these records will ultimately show, and that is of course because we haven't seen the records. The issue of materiality simply goes to whether there is a likelihood that in these records there will be relevant evidence to issues that we are litigating in this case. I think the affidavit amply shows that in the evidence already presented to this jury we have ample materiality and relevance to the question of where the leaks came from. The question of where the leaks came from relates directly to the issues we are already litigating and have already presented to the jury in terms of evidence tampering in this case. He says there is nowhere in this affidavit any suggestion that an LAPD officer was responsible for any leaks, and I would call his attention to paragraph 16 which recounts the testimony of Mr. Bosco.
A police officer or a--I think it says a police officer. It does not identify him as an LAPD officer.
A police officer as opposed to an officer of the Los Angeles Police Department. Well, I think it is a very fair inference that officers of the Inglewood Police Department or the Beverly Hills Police Department weren't passing out lab results, that the--the police officer in question logically and inferentially would have been an officer of the Los Angeles Police Department that was conducting this investigation, especially in the context of the report which talks about the history.
All right. Well, Mr. Uelmen, let me ask you this, though: The bottom line here is whether or not the leaking of misinformation implies evidence tampering. That is the bottom line issue. And--
Well, we believe it is broader than that. That even the leaking of prior information, other than just this one false report of results, is also relevant to the questions that we are addressing, the questions of the rush to judgment, the questions of attempting to influence the outcome of the case by--by leaking results. And Mr. Goldberg I think really misconceives the thrust of that argument. If lawyers or police officers went out on the--on the courthouse steps and passed out this information publicly, they could be held accountable. They would--would then accept responsibility for what they were doing. And accepting responsibility for what you are doing means accepting the consequences of what you are doing. For example, the Los Angeles Police Department accepted the responsibility for distributing the 911 tapes at the time that the grand jury was still considering whether to return an indictment in this case. It was, I believe, directly as a result of showing that responsibility, of showing that that leak came from the Los Angeles Police Department and was responsible for--
It wasn't really a leak. It was done aboveboard. There was nothing surreptitious about it.
Exactly, exactly, and for that reason we were able to the point to the Los Angeles Police Department and to say a climate is being created by the Prosecution in this case and by the investigating officers that prejudices the fair consideration of this case by the grand jury. That is precisely what we want to say to this jury and to this Court in this trial, that the responsibility of the Los Angeles Police Department for leaking this information was designed to create a climate that would prejudice Mr. Simpson. That is relevant evidence with respect to the weakness of their case, if they accept responsibility for it. But the problem is we are talking here about surreptitious leaking. We are not talking about going out on the front steps of the courtroom (Sic).
We are talking about passing out test results out the back door. And what we are trying to get at in this case is who is responsible for that, and that is an issue that we are entitled to present to this jury if we can show that the Los Angeles Police Department is responsible for that. And that is precisely what the materiality of this report is, to help us resolve that question. With respect to the question of the--of the rush to judgment, that goes directly to the motive to plant evidence in this case, and has already been the subject of testimony from numerous witnesses, including Detective Vannatter and Lange, with respect to how this investigation was conducted. And we are certainly entitled to counter that evidence with--with evidence that there was leaking activity going on in order to support a preconceived result in this case. So we would contend, no matter how we cut it, if--if the leaking of this information can be attributed to officers of the Los Angeles Police Department or laboratory personnel who were involved in this case, it is strong corroborative evidence of what we have already presented with respect to the planting of evidence, the manufacturing of evidence, and the lack of integrity of the evidence in terms of the security that was maintained over that evidence. Alternatively, if where it leads us is to show that some unauthorized person, some elevator operator or whoever was responsible for the leak, it goes directly to that security issue, to the chain of custody issue and to raising questions about whether in fact the evidence was maintained as securely as the Prosecution would have us believe in terms of the unauthorized access of other persons to testing results.
Doesn't elevator gossip--isn't that a big leap to the security of the actual physical maintenance of the evidence?
I don't believe it is that big a leap. I think it is a fair inference that if the Los Angeles Police Department, besides being a cesspool of the contamination in their laboratory, is also a cesspool of gossip in which an investigation is conducted in a way that this kind of information is readily available to anyone in the building, then that says a heck of a lot about the risks that we are talking about in this case that persons who should not have access to information and evidence did have such access.
I know, but actually more than twice, this is the third time, but counsel did articulate a couple new theories. I did want to respond to them. If the Court completely feels it is unnecessary, I won't.
It is up to you. You are the advocate for your side. If you feel it is absolutely necessary--
I would just like to respond very briefly. I think that it is very difficult for Mr. Uelmen to precisely articulate any theory of admissibility. He seems to offer two new ones.
Materiality. One is the issue of security, and I think as the Court's comments showed or the Court's questions showed, there is no logical connection or would be no logical connection between two detectives whispering conversations about the PGM results that were overheard by a uniform detective in an elevator and the security of the physical evidence itself. And I don't think they articulate any logical theory of connection. The second new theory that he articulated was that somehow any leaking would be relevant in and of itself, whether it is surreptitious or not, if I'm understanding what he is saying. Well, that would make the 911 tape information admissible, and I think he is saying that it would be admissible even though it was done entirely aboveboard pursuant to a request for information by the press. But that would also make the Defense leaks admissible as well, if you want to call them that--I'm not sure that that is the correct terminology--and we try this case by introducing evidence as to the respective sides' communications with the press and any inferences that could be drawn from that in terms of the effect that we wanted that to have on the public, and that just is not a proper way of trying a case. He also seems to suggest that if any police officer in the whole entire police department has done anything to evidence any sort of a preconception or ill will towards the Defendant in releasing information, that that in and of itself is relevant, but that would make it relevant if some--some officer, when he is passing out traffic tickets, is telling people, well, you know, by the way, I also think Mr. Simpson is guilty and there is a lot of evidence against him. I simply don't believe there is any logical connection between a person in a police department who is not connected with this case passing out information in any issue that is material before this jury.
Just a very brief point. If we had evidence that the 911 tapes had been doctored or altered in some way, that voices had been planted on the tape, then perhaps the release of those tapes shortly after those alterations appeared would be relevant and we would be arguing that--that the release of those--of those tapes was evidence of many of the inferences that we are suggesting here. And that is precisely the point, that these socks, the evidence we have already presented, may have been altered very shortly before the release of this information and the first test of the blood that was not observed on those socks until three weeks after they were seized were conducted one day before this leak took place. And the fact that a leak appears at that time and in that manner with respect to this evidence goes precisely to the question of materiality.
All right. Thank you, counsel. All right. What the Court has before it essentially are two issues of materiality: One with regards to the good cause to issue a subpoena duces tecum for the production of documents, and secondly, whether or not sufficient materiality exists to compel Mr. Bosco and Miss Savage to reveal the sources of their information. Both of these are in the nature of a preliminary finding regarding discovery, and what is required is that a party show a reasonable possibility that the information will materially assist in their case. The primary contention that the Defense makes is that the blood of Nicole Brown Simpson was planted upon LAPD item 13, which was the sock recovered from the Defendant's Rockingham residence master bedroom. There is the further argument that the source of this blood on the sock was the reference sample obtained by the Coroner's office. The record reflects that Detective Adalberto Luper directed the recovery of the socks, item 13, from the bedroom of Mr. Simpson because the socks looked out of place. He did not make any observations regarding the presence of blood. Criminalist Fung and Mazzola, working as a team collecting the items from the upstairs bedroom area, they collected items, including the socks, and at that time did not notice the presence of bloodstains. LAPD SID personnel Kestler, Matheson and Yamauchi, on or about the 29th of June, conducted an inventory of the evidence items during the course of the preliminary hearing and at that time no bloodstains were noted on the socks. The Court has before it the partial testimony of Dr. Fredric Rieders. Dr. Rieders has conducted an analysis of FBI Special Agent Roger Martz' testing of various bloodstain items, including the sock, item 13, and it has been the testimony of Dr. Rieders on direct testimony by the Defense that the results obtained by special agent Martz are consistent with the presence of EDTA on the sock. Herbert MacDonell, who testified for the Defense as a blood pattern expert, indicated that his microscopic examination of the sock indicated that the blood on the sock was applied in a compression manner, that the sock had soaked through from the left--excuse me--the blood had soaked through the sock from the left exterior at the ankle area into the right interior which led him to the opinion that the blood was applied while the sock was lying on a flat surface. Now, what transpired on or about September 21st was a news report, primarily on KNBC, channel 4, locally here, that certain test results, DNA test results, both PCR and RFLP, had been conducted on the sock and had come back with a genetic match for Nicole Brown Simpson. And the record also demonstrates that that information was incorrect. Miss Savage testified here, before invoking the news media shield, that the source of her information was, quote, knowledgeable and, quote, close to the investigation. Mr. Bosco testified that the information contained in his penthouse article in the June, 1995, issue, was a correct reporting of the incidents that he related and specifically at the page citation that he gave to us. He indicated that a police officer who had previously given mostly good information and had provided that information with corroboration was going around with information indicating this DNA match, and that Mr. Bosco, because no corroboration was offered, declined to follow up on that. Mr. Bosco's article also indicates that this information was provided to and rejected by numerous journalists. This leads to the argument that access to results also implies access to the evidence. This record does not support a finding that access to the results means access to the evidence itself. That assumes that access to the results does exist in this case. And the mere fact that the results as reported were incorrect is a clear indication to this Court that the source of this leak did not have access to that information and did not--was not a source close to the investigation and was not in fact knowledgeable. The Delaney case requires that the materiality or the offer or the argument in support of materiality cannot be mere speculation. And I think that the record in its totality here, the Court having considered the entire record, does not support a finding of materiality. All right. We will stand in recess until one o'clock.
The mere fact that the results as reported were incorrect is a clear indication to this Court that the source of this leak did not have access to that information and did not--was not a source close to the investigation and was not in fact knowledgeable.
I think it is a fair inference that if the Los Angeles Police Department, besides being a cesspool of the contamination in their laboratory, is also a cesspool of gossip in which an investigation is conducted in a way that this kind of information is readily available to anyone in the building, then that says a heck of a lot about the risks that we are talking about in this case.
I think it is what logicians call a fallacy of the assumed premise and that is that what they have said is there is a leak; therefore, it is more likely that evidence was planted on the socks. But in order to make that argument, you have to show a logical connection between the two or a nexus between the two, if you will, and that nexus is entirely absent.
The bottom line here is whether or not the leaking of misinformation implies evidence tampering. That is the bottom line issue.
There is no demonstration that anything regarding Los Angeles Police Department or the source of the leaks has any materiality to the issues which I believe are present in this case... they do not articulate that they have a good faith belief that any member of the Los Angeles Police Department in fact was responsible for the leak or in fact had some nefarious motive.