Thank you. Your Honor, I just received a few moments ago an order signed by you regarding the sock drying experiment, presence of blood on sock interior discovery violations, and I think I need a little bit of clarification, your Honor. First of all, on page 2 of your order you referred to the glove drying experiment and I believe--
Okay. I understand, and please correct me if I am mistaken, is you are not precluding Professor MacDonell from testifying. What you are saying is that he cannot testify to the results of that experiment that he did at this time based on the information that you have. With regard to presence of blood on sock interior, you refer to the description given by Mr. Sims in part of the testimony but there is no reference to the other portions where he said that he saw a red/brown substance but it is powder coming from, you know, fibrils, as opposed to a transfer stain. My question is, even without referring to the presumptive testing, the expert who is the nation's leading authority in bloodstain interpretation is entitled to give his opinion, but are you saying that at this point he can't refer to the presumptive tests? You see, that is why I need some clarification.
Okay. Umm--fine. And third is I would like to schedule--and you heard what the problem is about him leaving for Canada--can I schedule him for early next week, which would still give them ample opportunity?
All right. Because the scope of his testimony at this point is that in the interior of the sock there appears to be a red substance period.
Yeah. Also, as you know, you also received a copy of his July 15th report regarding the glove shrinkage experiment which was done on the Aris gloves that were--the same gloves in fact that Mr. Darden used in an experiment in this courtroom with Mr. Simpson--so he will be referring to that as well. And that is basically the testimony, as well as any just, you know, generalized blood splatter interpretation. But we want to schedule him, that is all, so the delay that you are allowing the People based on the totality of these circumstances is what? Can we call him Tuesday?
Thank you, your Honor. As we informed the Court earlier--as we informed the Court earlier with respect to the glove drying experiment, this is a motion that will be filed I believe today. I would be more apologetic about the late filing of these motions were it not for the fact that we just received the reports and had no idea that the--Mr. MacDonell was going to attempt to testify to matters contained therein, but that motion is forthcoming. With respect to the timing of his testimony, I still don't think we have an adequate offer of proof as to what the parameters of his testimony will be. His report, I believe now that counsel has said that he will testify to the appearance of what he says is a transfer on sock a and that he will also testify to generalized blood spatter interpretation. Well, there are no reports of any findings he made on any blood spatter at the crime scene in this case or at Rockingham, and if that is going to be the subject matter of his testimony, we need to have a 402 on that. Although counsel may characterize Mr. MacDonell as a leading authority in blood spatter interpretation, he, as the Court and I think the jury will see, is far from the most renown or the most revered, and I think that his conclusions will need to be reviewed by this Court under 402 before being submitted to the jury. So perhaps a more definite offer of proof needs to be made before the People can determine when they will be ready.
But the question posed by Mr. Neufeld is a matter of scheduling at this point, and if you want to challenge these matters, both on discovery bases and 402 bases, then we ought to set some time aside to do that. Mr. Neufeld's suggestion is perhaps Monday. How does that strike you?
Well, we have to file the motion on the glove. I think that will impact as well, your Honor.
Sounds to me like perhaps we ought to take up the 402 and 352 issues on the glove, since he will be the person testifying to this, the discovery issues and everything else all on Monday. How does that sound?
The only question is this: If we are about to embark on EDTA witnesses, and it is possible that both witnesses, Miss Clark may be able to assess as well, may go over to Monday in which case I would do it Tuesday. I'm just trying to be realistic here.
That is fine with me. Monday or Tuesday. I'm not wedded to that as long as everyone has time to get ready and get up to speed on all these issues, because they are substantial.
I have heard also, your Honor--well, I would request of counsel there are apparently other notes that Mr. MacDonell has made of his observations and experiments that we have never received. I'm not worried about the sock at this point, but I am concerned that there are reports concerning other observations or conclusions that he has made, notes and reports that counsel refers to, but we have never seen to this date. And so if there are any--are there any other notes or reports concerning the subject matter of his testimony or the subject matter for which he was contacted by the Defense to do experimentation or investigation, the People formally make another request that it be turned over.
Your Honor, I think we are well advised of what our obligations are in terms of discovery in this case and we will certainly comply with it and I believe we have complied with it with respect to Professor MacDonell. So we are saying Tuesday then I guess?
We intend to call Dr. Frederick Rieders as our first EDTA witness after the witness that is currently on the stand. I heard I think on the television last night that the Prosecution was going to make some sort of a motion to either preclude him or delay him. They haven't told me that. They have known I have been working on this issues. I think we need to decide that now. If we are going to make some sort of challenge to that, we would like to know that. We have two experts here from the east coast.
Well, let me ask you this: At this point, Mr. Cochran, how much more do you have with Mr. Ford?
Your Honor, I would think that I don't have very much of Mr. Ford, your Honor. Perhaps no more than fifteen or twenty minutes with Mr. Ford.
Your Honor, I just received notice of this change in developments late last night and I'm--I'm very--I'm really outraged at the manner in which this Defense has proceeded. It is a trial by ambush, according to the Defense, and let me just indicate to the Court procedurally what has transpired that leads me to this position. Dr. Rieders, we were informed would testify at some point, but it was at the end of a series of witnesses who have now been skipped over by counsel. Mr.--Dr. Rieders was added to the witness list, as best I can tell, formally on July 17th. That is this Monday. That is the same day we received his report. Now, the Court perhaps--I don't know if the Court has seen the report. I don't think that it has.
It is a two-page report and yet the conclusions are very complex, they are very serious. If Dr. Rieders truly intends to testify to the positions he has adopted in that report, the cross-examination will have to be extensive and the preparation time needs to be a little more than two days before he is called.
And the Defense deliberately put him on the witness list--let me indicate to the Court, as of July 15th he wasn't even on the scheduled list of witnesses. As of July 18th, which is Tuesday, he was scheduled to testify after seven other witnesses that have now been jumped over. The Defense is deliberately attempting to force us into a position where we are unprepared to effectively cross-examine this witness. The People are requesting of the Court--this witness has had the reports of Agent Martz which is what he did. He didn't do any testing himself. He reviewed the report of testing conducted by Agent Martz and then issued a report of his opinion of those results. And those opinions are highly questionable and require vigorous cross-examination, because what the attempt is here is to mislead and confuse the jury to such a degree that they will oversimplify and falsify the true nature of the findings by Agent Martz. This witness did not do the testing to which he plans to testify. In fact, he cannot do that testing and never has, yet he purports to be able to interpret the results in a manner that will be highly inflammatory, also highly misleading.
If he is called to testify first from a substantive point of view, for the benefit of the jury, your Honor, the jury will be completely misled and confused. At which point if Agent Martz is ever--you know, the Defense cannot completely refuse to call Agent Martz because they have no foundation for the testimony of Dr. Rieders at all, but if they--if they delay in the calling of Agent Martz, the issue will become so confusing and so misleading to the jury that he may never be able to sort it out so they understand what really transpired and what the test results really mean. So there are--I have like a two-fold objection. One, for the benefit of the jury in terms of their understanding of the testimony. Two, for the benefit of the jury in terms of our ability to effectively confront and cross-examine the witness which we have been deprived of the opportunity of doing by a doctor who has refrained from writing a report until a day or two before he takes the witness stand, based on reports he received at the end of February. I cannot think of a reason why a doctor would review reports that are not that voluminous, thirty, forty pages, at the end of February, I'm sure drew conclusions at least by the end of March, and not write a report until three to four months later. I think it is scandalous what has occurred here. I think it is a very deliberate attempt to try this case by ambush and to prevent the People from adequately meeting this testimony.
Initially the People seek preclusion of his testimony completely and we object on the grounds, the discovery violation and the obvious subterfuge involved in turning over a report that had to have been ready to prepare months ago, two days before they intend to call him. Additionally, I remind the Court of the context in which this appears and that is that his name is added to the witness list only on Monday and deliberately put down below a bunch of--
The Defense calls us at 7:45 P.M. on July 18th to tell us that Dr. Rieders would testify after the following witnesses--
All right. Miss Clark, let me clarify my question. Dr. Rieders is a name--the name Dr. Rieders has been mentioned--
--during the blood testimony, so it is--when was Dr. Rieders placed on the master Defense witness list?
Wait. He was--I'm sorry, your Honor. Let me take that back. Dr. Rieders was on the main list in October and he was added again in March, so yes, it is a name that is known to us, but a name without a report is virtually worthless. How do we know what he is going to address? In fact, I will tell the Court that it is very misleading because due to the fact that he does not perform and cannot perform effectively the kind of testing involved in EDTA detection, we were of the opinion that he would testify--we didn't know what he would testify to, but we certainly could not anticipate it would be EDTA since he is not an expert as far as the operation of the--the conducting of the testing in that particular area. Yeah, and then, umm--
Oh, yes. Oh, yes. There is going to be substantial 402's that have to be conducted prior to his testimony. I was in the process of trying to prepare paperwork to that effect, and believing that I had ten witnesses to go before him, thought that there would be the opportunity to do so. I should also indicate to the Court that from a substantive point of view, as Miss Kahn points out, Agent Martz is necessary to lay the foundation for Dr. Rieders. This is not a situation like Dr. Lakshmanan and Dr. Golden, because the tests performed by Agent Martz, Dr. Rieders cannot perform, I believe never has performed, so--
Well, that is an interesting issue in and of itself, but let's get to the issue of how much--let's assume--let me ask you this. How much time do you need to effectively prepare to cross-examine Dr. Rieders?
Given the fact that I'm required to be in Court everyday on the other witnesses and I have other witnesses that I am scheduled to cross-examine--
I'm wearing out my welcome with Mr. Kelberg. I got to kind of save him up. And I might indicate, too, that Dr. Maltz has disappeared from the list, so I don't know--I need to know from counsel when he is going to appear, but that is another matter.
I would ask leave of the Court for two weeks or the end of the Defense case, whenever that is.
Your Honor, this is a rather blatant and outrageous attempt of the Prosecution to try to control our order of proof. Let me state a little bit of chronology here. Dr. Rieders has been an issue in this case since the beginning of the year. We had a whole hearing with Mr. Harmon talking about his improper contacts with Dr. Rieders. They have known that he is--
Well, Mr. Blasier, let's cut to the chase. The issue is the turning over of a report two days before you are going to call him.
The report was turned over on Monday. There is no legal requirement that Dr. Rieders even write a report. He did not perform any tests. All he did was analyze their data. I feel like I've had a guest come to my house unexpected, stay three weeks uninvited and then they start complaining about the food. We don't have to have a report from Dr. Rieders. We did one, given all the folderol that we have gone through about experts not having reports. The conclusions are exactly what they thought they were when Mr. Harmon described our flicker of hope. They know what the issues are. Agent Martz knows what the issues are. I met with him last week in Washington. He told me what he thought our experts were going to same. They aren't that far apart, quite frankly. Both experts are going to say their are indications of EDTA on the sock and on the back gate. Where they divert is in terms of whether you could quantify that. They have known about Dr. Rieders. They contacted me yesterday about talking to him. I said we could do that. We were kind of short on time at that point. They know what the issues are--
He is going to say that their method is not capable of quantifying, first of all, how much is actually there, but more importantly, how much should there be given the nature of the samples being exposed to the environment being stored for eight months, because the FBI didn't do any validation studies to demonstrate how much EDTA are you likely to lose given the manner in which this evidence was collected and preserved. So he is going to say that their method is inadequate to do that.
Testifying to Agent Martz' reports? The Court advised us several times during the Prosecution's case that we can't control their order of proof. They decided to call all of their LAPD witnesses who did their testing after they called the people from Cellmark, after they called the people from DOJ. We objected to that. You properly told us not our decision, it is their decision, they can tie it up later. I'm assuming they are not going to argue that their own agent's test results are invalid. He didn't tell me that. He stands by his test results. That is all that Dr. Rieders is going to testify about. Dr. Lakshmanan never wrote a report. He testified not only before Dr. Golden, but in place of Dr. Golden. Collin Yamauchi was switched on their witness list until the end of the--until after Dr. Cotton and Gary Sims had testified.
You are not answering my question, Mr. Blasier. I sat through the whole trial so far. I know what has happened so far. You don't need to tell me. I just had a foundational question. How are you going to lay a foundation to have this guy testify to this stuff?
I'm going to have him look at Agent Martz report and findings and have him testify about those. I can do it on a hypothetical basis and then I'm going to call Agent Martz to authenticate them.
Your Honor, I think that we need to have assurance of counsel that Agent Martz will be called, because if not, we--
Well, no. Then I will ask to strike all of Dr. Rieders' testimony, but the jury, having already heard about a bunch of confusing and unsupportable conclusions, may then be so confused I will be required to. That is a different story. I don't want to be put in that position and I think that counsel should be admonished that some very serious sanctions--
Miss Clark, I'm just raising the issue. I'm concerned about the foundation for this testimony. We'll see. That was an intellectual curiosity question.
All right. Now, Mr. Blasier does raise the point that we have been talking about Dr. Rieders and the issue of EDTA for a long time and we know what the issues are. I mean, it was apparent to me what the issues were.
Sure. You know in a general sense, yes. Did we know about EDTA? Yes, we did. Did we know for sure that Dr. Rieders was going to testify to that? No. That is why Mr. Harmon was attempting to find out why his name came up in that context in a circle of chemists I guess that were talking about it. And actually as far as I understood it, determined that he couldn't be called to testify because he doesn't do the testing. His lab is incapable. And so we thought he was basically there, as many of their witnesses are, as just fodder. Their witness list is fat and replete with witnesses that they will never call and never intend to call. I'm not actually accusing them of anything nefarious in that regard. I'm just saying that there are many like that and I assumed that Dr. Rieders was one of them because his lab doesn't do the testing. It is one thing to see, even if you assumed that we believed that he would be called, that there are issues here, but that doesn't mean that we understand what his conclusions will be and how the--
I haven't seen the report. Does the report say that yes, you can use this testing procedure to determine the presence of EDTA?
It doesn't say to the contrary. What Mr. Blasier has just represented to the Court is not contained in his report. That offer of proof is the first time I've heard that he intends to so testify. That is not in his report. In his report all he--all he states is basically that in his opinion the components that were identified in--in the--this gets very complicated, but this has to do with the detection of ions, a parent ion and then there are--there is a daughter spectrum of ions, and why there are no sons, I don't know, but anyway, it is daughter--daughter ions. In the testing of the evidence bloodstains, and in Agent Martz' own unpreserved blood, we find there is a parent and one daughter ion but not the full spectrum of daughter ions, meaning that it could be EDTA or any other compound about that same parent and daughter ion which there could be hundreds of, but that result cannot be confirmed to be EDTA unless you have the full daughter spectrum which does show up in the reference blood samples. That is the bottom line. Now, what Dr. Rieders does is say in my opinion you call it EDTA when you find one parent ion and one daughter ion even though you can't see the whole daughter spectrum. That is essentially what his report says. His report says nothing.
I understand this, but I am not ready to cross-examine, your Honor, but believe me, I just read this report. We got--we got one court day to prepare on this? They have had months to prepare on all of ours. I mean, where is the fairness? It is ridiculous and a serious issue. This is a key focal issue in this case and the Defense drops it on us with one court day to prepare and then deliberately does this shell game with their order of witnesses to make sure we can't prepare. Yes, I have read about EDTA. Big deal. That doesn't mean I am ready to cross-examine a report that I have just received one court day. No one would require a lawyer to go forward on one court day on issues of such magnitude--well, maybe someone would, but on an issue of such complexity. It wouldn't be fair, it simply wouldn't, when the Court is aware that the Defense has had months to prepare for the smallest of our scientific witnesses, and I don't mean that in terms of length as much as in terms of simplicity or complexity of issues. This is very complex. But that is all his report says. It says nothing about the inadequacy of the testing procedures utilized by the FBI. It says nothing about the degradation of EDTA in samples are maintained or stored in certain ways. What Mr. Blasier just represented to the Court we have no notice of at all. I mean, this is worse than I imagined, far worse, because he intends to get up there and ambush us again and blind side us with all kinds of conclusions and opinions that are contained in no report for which we have no 402. What was the point of having a discovery statute under prop 115 if they come in and play this game again? And that is what they are doing.
Well, I think one of the products of this is likely to be a complete revision of 1054.
I would not be surprised. In fact, I intend to put my shoulder into the effort, if there is one, but I would indicate to the Court at very very least, if the testimony is not precluded, that the People be given ten days to prepare on this, and I don't think that is asking a whole lot when we know that the Defense has had months to prepare on the very smallest of scientific issues in the People's case. And all I really am just asking for the Court not to give the Defense the windfall benefit of their own tactics.
They do, but they just got the report. This is a key issue and it is a highly complex area and to drop a report a couple of days before you are going to cross-examine an expert, if the shoe were on the other foot, I would be peeling you off the ceiling right now.
All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
He can say that there is a red something over there.
I feel like I've had a guest come to my house unexpected, stay three weeks uninvited and then they start complaining about the food.
Sounds to me like you are ready.
if the shoe were on the other foot, I would be peeling you off the ceiling right now.
I think it is scandalous what has occurred here. I think it is a very deliberate attempt to try this case by ambush and to prevent the People from adequately meeting this testimony.