All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Scheck, Mr. Neufeld. The People are represented by Miss Clark, Mr. Darden and Mr. Gordon. The jury is not present. And we are in the midst of argument concerning two matters, one a discovery issue, and secondly, the admissibility of various scientific testing. Mr. Neufeld, at the conclusion of yesterday's court date you indicated there was something--some factual assertion you needed to make for the record.
Yes. Thank you, your Honor. Just dealing with the sanction part. I'm not going to be dealing with the other part at this moment.
Your Honor, Mr. Goldberg mentioned that Mr. Matheson was present at the examination that occurred on April 2nd, 1995, but that he wasn't there in the room the entire time. As you will see from his notes, if you've had a chance to look at them, he was there actually observing them when they were looking at the socks through the microscope and when they were taking the photographs through the microscope. In that regard, your Honor, the other fact which needs to be brought to your attention is that when Gary Sims testified they wanted to do the same thing, photo micrographs of the sock that had never been turned over to the Defense, and at that time, your Honor, you said that the issue was--is whether both sides had access to the piece of evidence and were allowed to conduct their own photographic examination. "If that is the case, then since Dr. Blake could have done it and didn't do it, there is no harm, there is no surprise, and I will allow them to introduce the micro"--I'm sorry--"The photo micrographs on a moment's notice," and that was your decision at page 30134 when Mr. Sims was testifying.
Well, I think, your Honor, since it involved photo micrographs of the same item of evidence, I just thought I would bring that to the Court's attention.
All right. If you are arguing for me to be consistent, then I think you are arguing against your position, but go ahead. Go ahead.
Your Honor, I also just wanted to bring to the Court's attention that in Mr. Sims' third report which was delivered and signed on April 6th of 1995, contained his experiment conducted during the months of January, February and March, as well, and there was no requirement that the reports be prepared shortly or at the same time that the experiment was actually conducted. Most importantly, your Honor, Professor MacDonnell is here if the Court has any questions for him concerning the chronology concerning when he wrote a report, when he first presented this information or his observations on April 2nd to the lawyers, his business trip to Sweden to teach the Swedish Police institute. He is here. He can answer any questions, so you know, to clear up any--any concerns that the Court might have.
I'm mindful of the fact that the Court requested of us to submit suggestions for other possible sanctions, other than preclusion, due to the discovery violations. I would like to set that aside at this time, if I may, because the People firmly believe that the material should be excluded on other grounds completely, so the Court need not waste its time on fashioning a sanction that would be appropriate for the violation that has occurred here. And if I may, I would like to turn our attention to that.
As the Court can see from the papers that the People have already filed, the Defense proposes to admit the examination conducted of the sock on which they see the powdery substance that lies underneath the cut-out for the stain that was attributed to Nicole Brown. The problem with that--the admissibility of that particular evidence is manyfold. First and foremost, although chain of custody ordinarily is a matter that goes to weight, it can arise or point out, at times go to such a great and severe degree that we are talking about an item that should not be admitted because it is weightless. In this case in particular we have that very situation. We have a sock that has been manipulated by the Prosecution experts, by the Defense experts ad nauseam for the past year. It is critical to the Defense position and to the significance of the evidence that they claim to have seen, which by the way is disputed by our experts. I should tell the Court that as a threshold matter. We have a report forthcoming to the Court, I have a draft of it in front of me, but in any case, setting that to one side, it is critical to their position that what they claim to have seen underneath the cut-out stain on the sock for Nicole Brown have been there prior to all of the testing and prior to the cut-outs and prior to the manipulation of the sock. Because if it is not, then you have nothing, you have no evidence and the sock has now been so materially altered by all of the manipulations that it has undergone as a result of all the testing, not to mention the testing engaged in by the Defense itself, that you have a situation where the current condition of the sock bears no relationship to the condition of the sock at the relevant point in time. Let me just give the Court some idea of all that has gone on. The socks were collected from the bedroom of the Defendant on June the 13th, 1994. At that time they were found in a crumpled condition on the rug and were immediately placed--they were lying together. I meant they were stretched out.
And they placed it into a paper bag, both socks into one paper bag, where it was kept in a frozen condition for a period of time. On August the 4th pheno testing was conducted of that very stain at the ankle and also of another stain at the toe, I believe of the other sock. Already we have an alteration, not to mention the jostling that has occurred of those socks up until that find, in the process of collection, movement and storage. Greg Matheson began actual testing on the sock in September, `94, and he conducted a further pheno test and then cut a snippet, cut the hole I think that is in issue here. On October 4th, 1994, Gary Sims--
We have had in the record a long chronology of all of the handlings, testings, et cetera, et cetera, of these two items.
All right. Thank you, your Honor. So we know that the observation that is reported by the Defense is not until April of `95. Now--now, the only--the only materiality for the observation made in April of `95 would be if you could show that that condition existed back in August of `94. That can never be shown, and in fact, the opposite inference is the logical one to draw. Furthermore, there is a separate issue here and that is the fact that the manner in which the Defense seeks to prove that the powder underlying the cut-out stain was done by pheno testing. The Court has ruled that phenolphthalein testing results are inadmissible when they are positive, unless there is confirmatory testing. There was no confirmatory testing on that powdery substance. Let me point out a couple of things in that regard on a logical basis. The powdery substance that they see underneath the cut-out could very well have been caused by the friction of the sock sides itself rubbing together after the stain was dried. Very simply. Could have been caused also by merely cutting out the stain and also could have been the Defendant's blood as he took the sock off. We will never know. The Defense has conducted a pheno test. They have arrived at a positive. We don't know whose that is. If it is in fact the Defendant's blood that is found underneath that cut-out, then what relevance is it in terms of planting? It has the opposite inference to be drawn. But in any case, the Court has taken the position, with respect to the admissibility of phenolphthalein tests when they are positive, and the position was that that is inadmissible, so that is a separate reason for the admissibility of that particular evidence. Thirdly, there is a three-prong test that was set forth for the admissibility of this type of experimental evidence which is really what this is and it was set forth in People versus Bonin. Under People versus Bonin they must first show that the testing is relevant. The cases that we have cited to the Court make it clear that you have very broad discretion in determining relevancy, but they have upheld the exercise of that discretion in excluding evidence under the abuse of discretion standard. There are two major problems that I see with the relevancy in this issue. First of all, they have to rely upon the efficacy of their own testing that states that the drying time for the blood on those socks would have been fifteen minutes. The People are not aware of any underlying documentation concerning what the conditions of those experiments were. There is no showing, however, in the record, and here is the--
You are saying that the conditions under which the experiment took place are not documented in any of the notes that you have been given? Is that what you are saying?
Right. We have some documentation, we have some notes. We don't know exactly what kind of socks. Obviously that is very important. We don't know exactly whether they are exactly like the socks in evidence. More importantly, though, you are talking about an experiment here that can never be relevant because the number of variables that would--that we have in the set of circumstances leading up to the deposition of the sock in the bedroom can never be duplicated because they cannot be precisely known. Of greatest importance, and most gravely, is the Defense assertion that fifteen minutes is somehow the arbitrary time chosen for the time lapse between the commission of the murders and the arrival at home when the socks are removed.
They can never prove that. No one can ever prove that. And the fact of the matter is that it could very easily have been done within ten minutes. After the murders are committed it takes the Defendant four minutes to drive home, another two to three minutes to get into his house. We have him in the bedroom taking those socks off then in seven to eight minutes. How can the Defense prove it happened otherwise? They cannot. And so their assumption implicit here that there was fifteen minutes for the socks to dry is false. But above and beyond that, how any experts can set forth in papers, as Mr. MacDonnell did, that he can conduct an experiment that exactly duplicates the humidity of that night, the heat of the body of the wearer of the socks, the sweating and perspiration that would have been engendered in the vigorous exercise involved in the murder of these two young people that would also have kept the blood wetter, and then the conditions under which he drove back to the--to the house and then removed the socks, perhaps with a wet hand, with a bloody hand that would also have made the socks bloodied and cannot duplicate the amount of time in between and no showing that the material of the sock that they used for the experiment is even the same. And furthermore, there is no showing that the Defense has any theory as to whether the blood on that ankle area was deposited by airborne spatter, by transfer swiping along an already puddle of blood at the crime scene or even swiping next to her body. We don't know if it is a swipe, if it is a spatter. We just don't know what kind of pattern that really is. Moreover, we don't know how much blood was initially deposited on that sock and they can't know. So how did they conduct this experiment? They just kind of made it up as they went along. Picked fifteen minutes, they figured that was a reasonable amount of time, and then decided that that experiment was going to indicate that the socks had to have been dried by the time they were deposited on the floor, which is nonsense. They can't make those assertions. They make a series of assumptions to arrive at a conclusion that is itself unreasonable. Now, if more rationally we look at the very real possibility that the socks were still wet when taken off by Mr. Simpson, then you have an obvious transfer right there, just by the socks lying on top of each other. A logical and a rational and a reasonable interpretation of the evidence, as opposed to this tortured, twisted logic that leads us to a conclusion that is--that is defamatory it is so false. I don't think that we can allow the jury to be subjected to the kind of tortured and twisted thinking that is involved in the conclusions drawn from this irrelevant experiment. The second prong--so I mean we have a problem with relevance because of the assumptions made concerning the drying time. Of course there is also the problem on a fundamental gut level, your Honor, that there is no evidence that anyone planted anything on the socks, and by that I mean I'm not asking the Court to exclude it on a bootstrap argument. Their argument is bootstrapped because is there any indication in the evidence that there was something wrong with these socks and the manner in which they were packaged that would tend to indicate that they were tampered with? The answer is resoundingly no. Has there ever been any testimony or indication that someone went to the freezer where they should have been and they were found somewhere else? Has there ever been any testimony indicating that they went to the back and found the seals tampered with? No. Has there ever been any indication that someone was seen carrying the socks who had no authorization to be in possession of them? No. These are the kind of things, this is the kind of evidence that might under certain circumstances tend to indicate that maybe, maybe something happened untoward with the socks, but there is nothing like that in this case, nothing at all. So now what you have is an observation made long after the fact, a year--a year later almost after their collection, which is totally irrelevant. The second prong of the test deals with substantial similarity of the material circumstances, and again we cited cases to the Court dealing with this aspect, and the tests in this case. I think I've already indicated the numerous problems that you have, the variables that can never been pinned down to make a an experiment of the type performed by the Defense relevant or substantially similar, the problem with the amount of blood, the same fabric, the perspiration of the wearer, the ambient temperature and humidity and was the blood used--did it contain a preservative or anticoagulant. None of these things--none of these things can be determined. I'm talking about the powdery substance underneath the cut-out. We just don't know the answers to any of those questions. And so in this kind of situation the Court has addressed the issue in the Andrews case and that is a case that we did cite to the Court and I think it is particularly relevant because actually the Andrews case had a much more on point experiment than this one is, and that was a civil case in which a plaintiff fell out of a chair in the Defendant's store.
That is the case where they turn around and determine different angles to see how you fall over.
Right. But at least, your Honor, the Court is aware, they had the identical chair. We don't even have that here. We don't have any showing that we have identical socks. In fact, I will tell the Court that we tried to find identical socks and couldn't because they are of such unique quality. And the Court has seen--I think probably felt them, but the material of them is so light and so slick we went out looking all over Beverly Hills and couldn't find socks exactly like those in evidence. So I mean just to let Court know that no mean feat in this case. Ordinarily--no pun intended, feet--but ordinarily duplicating of socks would not be so difficult. In this case it really is. These are unique, unusual quality socks. Now we have to make many more assumptions in this case than they did in the Andrews case. We have to make assumptions concerning the degree of sweat that the Defendant would have had.
Okay. So I'm done with that. The third prong of the test deals with the undue consumption of time, and here we have extremely strong concerns, and let me indicate to the Court what will transpire if this evidence is admitted. If this evidence is admitted, not only will the Defense go into testing with respect to EDTA testing and that kind of expert testimony, but the People on rebuttal will then be--not to mention extensive cross-examination by the People of their experts, but that goes without saying--in rebuttal the People will be now required to call to testify Gary Sims, Greg Matheson, Peter De Forest and two other EDTA experts yet to be determined, to set straight the record. To set straight the jury so that they will understand that what they've been given is a lot of false, misleading and confusing claptrap. But that will take weeks of extra time, and I don't think I'm exaggerating at all in saying this, your Honor, because I have reviewed the materials from the Defense. I have reviewed what Agent Martz will be required to say concerning EDTA. I know how long it is going to take to elicit that testimony more clearly after direct. I think the cross may well be a lot longer than direct in that case, just on a technical basis so the jury will understand what he is really saying and not saying. And then they are going to be calling Dr. Rieders and Dr. Rieders' cross-examination, I can promise the Court, will have to be lengthy because of the assumptions he makes and the false--
But aren't we talking right now about an experiment on how long it takes for blood to dry and the potential for transfer from one side of the sock to the other while in an unused position? I mean, that is what we are talking about.
They are and yet when they want to prove that there is preservative in blood taken from the sock, it is going to be necessary for them to show that in order to draw the inference they want the jury to draw. You know what I mean? They are going to have to put on something about EDTA on the sock stain that was tested for Nicole's blood in order to make the finding really more relevant; otherwise you just find some powder in there, it could be the Defendant's blood, it could be Nicole Brown Simpson's. They want the jury to infer that it is Nicole's blood and they want the jury to further infer that it was planted and that is why it was found there, so I mean, it really does come into it as well. And I agree with the Court. I mean, the primary thing is that, but when you understand the 352 undue consumption of time, you have to consider all the ramifications of admission.
In any case, even if EDTA is not admitted, let's assume they don't call any experts concerning EDTA, I can promise the Court that at least the three scientists I have named will be required to testify to explain what they saw. And among the observations that they will impart to the jury is the fact that they completely dispute Mr. MacDonnell's characterization of what he saw, so I mean, there is a lot of real fundamental problems with this, in addition to the very glaring legal issues that I have pointed out to the Court concerning the admissibility of this evidence. And we urge the Court to exclude it on the grounds that it is not only not productive and undue consumption of time, but much more than that, is really an attempt by the Defense to subvert justice. We are talking about evidence that is not only misleading and confusing, but downright deceptive, and we urge the Court not to allow them to engage in this deception with this jury.
Umm, apparently Miss Clark has forgotten the fact that certain matters can be proved through direct evidence and certain matters can also be proved through indirect or circumstantial evidence. It has been the Defense position in this case that blood was planted on the sock and just because we can't produce evidence or an eyewitness who was there when this planting occurred does not mean that we are precluded from bringing it through circumstantial evidence. I think the key issue here was articulated by Miss Clark in her first remarks when she said the evidence is that what was on the inside of the opposite side of the sock directly beneath the ankle stain was powder. That was the testimony of their expert, Gary Sims. That was his opinion, that it was blood, but it was powdered blood; it wasn't a transfer stain. All we want to do is call an expert, all right, who will say he looked at the same phenomena, what Gary Sims described as powdering--as powdered blood, and will say that Gary Sims is mistaken, it is not powder, it is a wet transfer stain, it is blood which has bonded, adhered to the sock in a wet form before it dried. That is a critical point. It is a critical contradiction to the testimony and position offered by the Prosecution's witness, Gary Sims, in this case. The Court cannot be expected, nor can the jury be expected to take as conclusive fact one witness' opinion as to what he observed underneath the microscope on the inside of the opposite side of the sock directly beneath that ankle stain. That would be absurd. That is why we have an adversary system. We are allowed to call witnesses who disagree with the conclusions of their expert. That is all we want to do here. And when you think about that comparison, your Honor, think about the fact that Gary Sims is first and foremost a serologist. He is not an expert on the non-serological aspects of bloodstain interpretation. You have before you, because it was given to the Prosecution in this case, a copy of Professor Herbert MacDonnell's CV. There is no question he is the nation's, if not the world's leading authority on bloodstain interpretation. He has written the three major textbooks which serve as the standard for this particular discipline throughout the world. His books have been translated into different languages and are used in thirty or forty different countries. When he--after he did his examination and he presented his results to us, he immediately took off to give a presentation and teaching course to the government police department of the nation of Sweden--of the kingdom of Sweden. This is who the witness is. They are afraid of hearing from the foremost authority in the country on this particular subject. It is a question of fact for the jury whether what was observed on that sock was powder, which doctor--which Professor MacDonnell disputes. He says it wasn't powder and it is not powder. And one can, if you are an expert on bloodstains and its characteristics, distinguish between dry flaking, which transfers after the fact, and wet blood which bonds to the sock itself. That will be his testimony and there is no surprise about that because that is exactly what it says in his report which was given to the Prosecution. He states on page 1 of the July 11th report in paragraph--in item no. 2: "The inside of the sock directly opposite the cut-out portion also exhibited areas of transfer staining. These stains are on the surface of the fibers as well as in the grooves between the fibers. Many of these stains dried resulting in a, quote, `build up appearance.'" as the nation's leading expert on bloodstain interpretation, what Professor MacDonnell will testify to and what he has said in his report is that what you saw under the microscope with Gregory Matheson sitting there watching them take these pictures is a wet stain transfer on the opposite side of that sock. That directly contradicts the expert testimony of Gary Sims, the serologist called by the Prosecution in this case.
That is what we are talking about here. There are photo micrographs that were taken at that time. They have been turned over to the People. The photo micrographs will be used and exhibited to the jury to corroborate Professor MacDonnell's conclusion and they will be shown to the jury to demonstrate exactly what he did see. It is not powder, it is not flaking, it is wet stain that adhered, that bonded to the surface of the sock on the inside of the other side. So they put the issue in controversy. They made the suggestion through Gary Sims that this was never a transfer stain, that obviously the blood had dried on the ankle while it was being worn. And Professor MacDonnell's testimony will directly controvert that factual assertion by the People. That is why he is being called. So this stuff about powder is their position, it is not a fact which has been resolved yet by the jury. We are taking a contrary position and that is why we are calling the expert. So I think there is no question that it is relevant. I think it is very persuasive and very powerful evidence. And if Miss Clark is that concerned about the search for the truth, she would certainly want the jury to hear this evidence from the nation's premier authority on this subject. Let's see. The second point they make, which is the presumptive tests that is were done, you know, from looking at Mr. Matheson's notes that certain presumptive tests were done that day and the results of those presumptive tests are actually described in Mr. Matheson's notes. In the first place, your Honor, we are not talking about a different stain here. It is Professor MacDonnell's position that this is the same stain that moves right through from one side of the sock to the other side of the sock. That is what he is testifying to. And your Honor has already ruled, if there is corroborative testing done on a particular stain, then the fact that it is this witness' opinion that it is blood is admissible. He will say it is the same--the same blood source that created the stain on the outside just moved right through, seeped right through into the other side of the sock. That will be his expert opinion. Furthermore, your Honor, on the issue of presumptive tests, and on these particular stains, Gary Sims already testified to the reddishness that he saw on that same surface, the opposite side of the inner side. That is what Miss Clark was referring to. Only Mr. Sims said that it is dried blood that was powder. That was admissible. So once he has already described what is on that other surface is dried blood, what we are saying is it is not dry blood powder, that it is wet blood that dried on the surface of the socks. So that fact that it is blood is already out there for the jury. The question is was it powder when it got there in its dry form or was it, as Professor MacDonnell will demonstrate to the jury with compelling photographs and 25 years of experience of doing more bloodstain interpretation than anybody else alive on the planet, that it was not dried powder, that it was in fact a wet transfer stain. So the whole notion of the presumptive test issue is irrelevant in this particular instance. Now, separate and apart from what Professor MacDonnell observed under the microscope and giving his expert opinions as to the significance of what he observed, there is a separate question, and that is sock drying, how long it takes for blood to dry. Professor MacDonnell is not testifying simply on the basis of the notes that were turned over to the Prosecution. He is testifying on the basis of twenty year's experience running institutes all over the world where the students have to do drying experiments on a variety of different types of fabrics; some very, very shear, some much bulkier than the socks in question, but all kinds of fabrics. In fact, in his own laboratory book which we will produce in Court, he will show that one of the experiments he requires all the students to do is the drying time of blood, various amounts of blood, on various different types of fabric. These kinds of experiments he has been doing in case work and teaching and are described in his books for twenty years. There is nothing new or unique to it when he testifies or gives an opinion in this case. He is not simply relying on an impromptu experiment he may have done on June 6th. It is the whole experience he has accumulated after twenty years of doing this kind of work when he gives his expert opinion. Secondly, your Honor, with respect to the--this suggestion by the Prosecution that an experiment has to exactly replicate the conditions, that is not the law. The law requires some kind of substantial similarity, your Honor, and I would simply point out that on numerous occasions in this case the Prosecution has offered experiments in front of the jury which couldn't possibly exactly replicate, it is not possible at all.
For instance, when Gregory Matheson was on the witness stand and he wanted to refute the notion that one and a half ml was missing, he went back to his laboratory that night and he tried to reconstruct how much blood might be lost if you made five or six withdrawals. You may recall that, your Honor, and of course he said I don't remember what kind of pipette exactly was used to withdraw it in certain of the withdrawals and I can't tell you the exact amounts, but given the experiment I did last night, this is how much blood was lost through the transactions. Well, that is an experiment without a report, without the notes, and certainly could not replicate all the different withdrawals that were made from that blood vial over a several-month period of time. Another example, your Honor. The Prosecution, over Defense objection, brought out a new pair of Aris gloves. There is no question, your Honor, that the Aris gloves that Mr. Simpson was asked to try on could not in any way replicate exactly the size of the gloves in evidence as they were on June 12th. That is an unknown fact, all right? In fact, Mr. Rubin even testified that there is some degree, there is some range of variation even within extra large gloves, so that is another instance where an experiment was allowed to be conducted in front of the jury where you could not get exact replication, and we are not saying that exact replication is essential and that is not what we have here either. Another example--
Well, what we have here are two things, your Honor. Most importantly, it is not even the experiment of June 6th. Most importantly is Professor MacDonnell's body of knowledge accumulated over twenty years in experiments with students, experiments on dozens of different cases in which he can estimate as an expert what is the approximate drying time of--of a smear of blood on socks, whether it is air-dried as opposed to being worn on the ankle, and he will give an opinion based on that. To the extent that they can challenge that opinion, I believe that goes to the weight, not to its admissibility. I believe he will be able to lay the proper foundation when he testifies to show that he has the requisite experience and expertise to render that opinion.
All right. I don't doubt the doctor's credentials, experience, et cetera, et cetera, but we are talking now about similarity, substantial similarity of conditions. Miss Clark, in her argument, raised a number of issues, such as the nature of the fabric itself, the amount of liquid used in the experiment, the porosity of the particular material, the humidity under which the exam was conducted and the actual situation here, the perspiration of the individual involved, the ambient heat, the heat of the body. She raised a number of issues--
I will be more than happy, your Honor. First of all, those are all points, I believe, which frankly go to weight rather than admissibility, just as they do when we challenged Greg Matheson's assertion about how much blood was lost, just as we do when Vannatter testifies to the driving time from Bundy to Rockingham without replicating the same traffic patterns as existed on that night, just as we do when we challenge a glove experiment involving a new glove other than the actual gloves recovered in this case. But just to show some similarity, a substantial similarity, your Honor, let me address each of those points. First of all, Professor MacDonnell, who is an expert, as I said, in bloodstain interpretation, can estimate, based on the amount of blood staining that is still left on the socks, approximately how much blood was swiped onto those socks initially. And by the way, the testimony will be not that it is a drop at all, but it is actually a swipe, a smear, if you will, rather than a drop on the surface of those socks. No. 2, what is interesting about the similarity of the socks, he used very shear synthetic socks for the June 6th experiment, but as I said earlier, he has done, you know, hundreds of experiments on various shear material and blood in the drying time over the 20-year--25-year career that he has had in this particular field. What is fascinating is the admission made by Miss Clark that they were unable to get the exact same pair of socks, and you may recall just how, and I believe her word was, how light and slick the surface was of those socks. Well, the lighter and slicker that surface, the shorter the drying time in fact, so if anything, what Professor MacDonnell will be able to testify to as an expert, that his experiments, if anything, engender longer drying times than the drying time for the sock in question. We are not suggesting we had the exact same socks; we don't, but he will show that, first of all, with a synthetic sock, as opposed to a sock made of cotton, since synthetics are a plastic, the actual fibers themselves don't absorb the blood and so the drying time is much quicker than it would be, for instance, with cotton, with a natural fiber which can absorb the blood, and the lighter and slicker the fabric, as in this case, the shorter the drying time, so he has done a range of experiments so he will be able to testify to what that range is and how these socks would fall within that range of drying times, even without replicating it. Very often an expert witness cannot directly replicate conditions so what he tries to do is bracket it and give an opinion based on the various experiments and wealth of knowledge that he has, even though it is not the same exact. That is all Professor MacDonnell will do in this situation.
The reason I asked the question regarding material, because in my review of the notes and the report there is no determination regarding the determination of what material was selected, how it was selected and how it is similar to the sock here. There is nothing in the materials that gives the Court any clue. And I think just for the--for the record, we ought to mark as a Court's exhibit for this--
What I will do, your Honor, is I can get that additional information on the experiment for you. The other thing I can also do is actually probably produce the socks themselves. But the point I'm trying to make is that although the socks that Professor MacDonnell used are shear and light, they are not as light nor as slick as the actual socks in this case. So if anything, his drying results are actual--from the experiment he did on June 6th are longer, generate longer drying times than it would on the socks in this case, and that will be his expert testimony. That is the point. But I will certainly provide that information for the Court. The other important thing, your Honor, is that when he gives that opinion in his report, the opinion in his report simply says that based on experiments. That is not simply referring to the experiment of June 6th. That is simply based--based on, as I said, experiments that he has conducted over a 20-year period both with his students and in cases on hundreds, if not thousands, of different types of textiles under, you know, all kind of conditions. He has a body of knowledge from those experiments which enable him to give an expert opinion as to the drying time. But I will be more than happy to furnish the additional information for the Court and the socks themselves, because they have been retained. The blood experiment was not--was not contained--did not contain a preservative or anticoagulant. He simply withdrew his own blood and put it onto the sock, so that answers that question. As I said, your Honor, I don't think there is any way one can ever replicate all ambient temperatures and anything else that may have happened.
Your Honor, Professor MacDonnell did not try and manipulate the conditions for that experiment. He said it was approximately seventy degrees and in an environment where there may have been eighty percent humidity. But as I said, he simply--he is not stating that as a scientific fact. All right. The point, your Honor, is--and as Professor MacDonnell can explain as well, perhaps better than me if I haven't communicated it effectively, is that the experiment that he did is not the primary basis for his opinion about drying times. It is just something he did, as I mentioned earlier, as an impromptu thing after he came and made his presentation to us on June 3rd, the day before he left for Sweden. He went back home and he just did it and he made notes on what he did and I had asked him to produce every single note that he had regarding the subject matter of his testimony here and so he produced those notes. But I think the experiment is relevant again because he simply wanted to produce a range of values, so he took very extreme conditions, your Honor, extreme conditions as to the amount of blood that was used and how it was put on the sock and under what conditions it was put on the sock. I don't believe that the actual temperature at which the experiment was conducted is--is at issue as to the experiment's admissibility, and I believe that Professor MacDonnell will be able to lay the proper foundation to have those experimental results introduced. But as I said a moment ago, your Honor, even that experiment is not essential for Professor MacDonnell to render his opinion as to drying times on shear fabric such as the fabric in question in this case. Let me just make sure that I have covered every other point.
The report indicates that the blood had to be, quote, teased into the fabric. In other words, apparently had to be pressed or manipulated or somehow pushed into the fabric to get it to adhere. In this situation we have what appears to be either a blood drop, which I can see, given the nature of the injuries that the victims suffered, you are saying it is a smear?
So you are saying maybe one of the victims grabbed at the socks or something like that and smeared--
I'm not saying the victims grabbed a sock. It is the position of the Defense, your Honor--
KEY QUOTEI'm not saying that, your Honor. I'm saying that that blood was put on those socks long after June 13th.
What there is no question about, and what Professor MacDonnell will testify to, it is not a drop, it is not spatter, it is a smear, it is a deliberate smear on the socks and there is no question about that.
Why shouldn't I be concerned that under this experiment with this sock that the material had to be manipulated to get the blood to adhere?
Oh, no, no, no. It didn't have to. If you look at the note in fact for that experiment on June--just one moment, your Honor.
It is not in the report; it is in the June 6th experiment. What he did on spot 1, as opposed to spot 2--in spot 2 he didn't tease it in. In spot 1 he deliberately put in more and more blood. He put in quantitatively a lot more blood in spot 1 when he teased it in because he deliberately wanted to saturate it to an extreme. Remember I told you he is now doing a experiment to show if I take the most extreme conditions, a lot more blood, to soak in as much blood as possible, so don't just swipe it and make a smear, but instead let's take the blood and almost sort of knead it in like bred or something into the material to make sure it gets all the way through to the other side of the sock and even comes out the other side of the sock on to a glass table so there is actually blood on the glass table that that sock is in. That is why he is teasing it. He is deliberately teasing it. If he didn't do that, if you look at experiment no. 2 in the notes where he says that the human blood was simply swiped over the surface, in that instance he didn't do any teasing at all and he records the drying time for that stain.
Do you have the citation in the transcript for Mr. Matheson's testimony regarding his observations regarding the powder, what he termed as powder and blood?
Just in a minute we are going to pull it right up for you. I think it is also in his notes.
Because basically what you have here is two issues: One, whether or not the stain--the stain inside the sock is powder, residue and/or a transfer stain. Issue no. 1. Issue no. 2, is there substantial similarity for the drying experiment? Those are the two issues.
Well, what I would propose, your Honor, is, first of all, since then the micro photographs were turned over last week, the notes were turned over. I would propose, if they need an additional day, that could he stick around until tomorrow to testify or he could testify on Friday morning. He is leaving for Canada a week from Friday for two weeks. So I would very much like to get him in. I think what this is really about is trying to have some more time to prepare cross-examination of Professor MacDonnell, and if that is the case and we can't do it tomorrow and we can't do it Friday morning, Professor MacDonnell will come back early next week, but it is very important to us that he be able to testify at about this time in the case, because, as Mr. Cochran has pointed out, we are trying to move the Defense case along very, very quickly, and we would like to wrap this up in the next couple of weeks.
Yes. All right. Well, why don't you get me the mention in the transcript regarding Mr. Sims. Let me know what Dr. MacDonnell's schedule is. I will take the matter under submission until I have the opportunity to reread the transcript regarding Mr. Sims' testimony.
So you can have the jury come back in, may we step out and look in the computer so that we can generate this without wasting the Court's time.
What will happen is I will have one of my law clerks then pull up the transcript to make it available for me to review this afternoon.
May I just respond briefly to Mr. Neufeld, and I mean very briefly? I want to get to Meraz, too.
You have and I'm talking about something I have not stated in response to what Mr. Neufeld has represented to the Court.
It is important that they be able to establish that that powder comes from that cut-out stain.
I understand there is a factual assumption that one belongs to the other. I understand that.
Right, but I don't even think that Mr. MacDonnell is going to assert that the powder was in the same configuration as the cut-out.
No. What I'm saying is that the powder underlying the cut-out could match the cut-out so that we would know what was--you know what I mean? Does this make--
Counsel, if you would, do you have the photographs, the micro photographs of this particular location, because you did give me--
KEY QUOTEYes. I will give you the micro photographs that we intend to offer in evidence. What you should know is, is that it will be the Professor's testimony that when you do this micro photograph you are zooming into a very small area and that he saw similar phenomena--
If you recollect, we got to see this phenomena under the stereomicroscope with the jury.
Symmetry is a dangerous thing to argue, isn't it, in this situation?
They just kind of made it up as they went along. Picked fifteen minutes, they figured that was a reasonable amount of time, and then decided that that experiment was going to indicate that the socks had to have been dried by the time they were deposited on the floor, which is nonsense.
It is not powder, it is not flaking, it is wet stain that adhered, that bonded to the surface of the sock on the inside of the other side.
Counsel, if you would, do you have the photographs, the micro photographs of this particular location, because you did give me -- Xerox copies from which I can tell exactly nothing.
I'm not saying the victims grabbed a sock. It is the position of the Defense, your Honor — that blood was put on those socks long after June 13th.