All right. Back on the record in the Simpson matter. The record should reflect the Court's had the opportunity to read the 16 pages plus exhibits filed by the Defense in response to motion in limine. I've examined the photographs as well. Each side will have 15 minutes to argue.

Good afternoon, your Honor.

Mr. Goldberg, good afternoon, sir.

I just would like to point out, as I'm sure the Court noticed, that counsel's brief was 16 pages and there was also--

I was tempted to strike it.

--no table of contents.

I noted as well.

I'd like to organize my argument somewhat along the lines of the three-prong test that applies in determining the admissibility of experiment evidence. I know the Court's very familiar with that. So I'll skip over some of the legal argument that the Court heard about. And I know your Honor just recently read some of the cases in that area that has come up and I'm sure it's going to come up again in this courtroom with respect to some other experiments. Suffice to say that the first issue is one of relevance, and there appear to be two theories of relevance that the Defense has articulated. As the case law states, the Court does have an enormous amount of discretion in determining what evidence is relevant. And as was argued by Miss Clark in her points and authorities, the issue here is one of the Court exercising its discretion, and the standard on appeal therefore is the abuse of discretion standard, and that's the standard that the Court needs to apply here in exercising its discretion. Now, first, the Defense has said that this is relevant for the purposes of impeaching the testimony of mark Fuhrman. That seems to me that's a little bit of an oversimplification because if all they wanted to do was to say that mark Fuhrman and Detective Vannatter testified that the glove was wet and we want to--or looked wet and we want to establish that it looked dry, that kind of impeachment on a collateral issue in and of itself would be so insignificant that it is not the kind of thing that most advocates would be interested in pursuing and certainly not the kind of thing that most courts would allow.

So what they're really getting at is something a little more significant in their judgment than mere impeachment, and that is trying to put on evidence to suggest I think that Mr. Fuhrman planted this glove at the Rockingham location, that more accurately characterized, that is the first theory of relevancy that the Defense has put forward. They are doing this because Detective Vannatter and Detective Fuhrman testified that it appeared to be wet. They did not testify that it was wet. They specifically testified that they did not touch it and both of them testified that when they observed the glove, they were observing it with what I have characterized as being a pen light. I'm not sure if it really is, but it's a very tiny flashlight, and they are observing it initially under conditions where, needless to say, it's not very ideal. The Court has been behind the Defendant's home where the glove was located.

Well, Detective Fuhrman testified under cross-examination by Mr. Bailey that it was a double A--two double a cell mag light.

I think it's still a small--a small little light. It's about five inches or so in length.

I have about five of them.

Okay.

All right.

And this does of course involve a subjective evaluation of Detective Fuhrman and Detective Vannatter. I think it would be a little bit different if they had touched it with their fingers and said it was wet. But we're dealing with what their subjective evaluation of the appearances of a glove under very difficult circumstances was. And then we have to compare those of course to subjective evaluation of the Defense expert who says that under laboratory conditions, presumably under ideal circumstances, after his tests, the glove looked dry and, therefore, say there's an inconsistency. Therefore, we should doubt the testimony of Detective Vannatter and Detective Fuhrman. And it seems to me that is a very difficult comparison to make. In fact, an impossible comparison and unfair comparison to try to make. It seems that what they're ultimately getting at here is to suggest that the glove was transported by Detective Fuhrman to Rockingham in a plastic bag, which was one of the theories which was put forward on cross-examination of Detective Fuhrman, that he put it in a plastic bag and then secreted it in his sock and then later on left it at the Rockingham location, and that somehow the experiment supports this theory because in the experiment, there were certain areas--actually only a couple areas where the glove came into contact with the plastic bag, that in the subjective evaluation of the examiner appeared to be wet, notwithstanding the fact that they were in fact dry. So I guess the suggestion is that in order to get the type of appearance that Detective Fuhrman articulated, perhaps it was dried in a plastic bag. But even the subjective evaluations of the evidence by the expert do not match those of Detective Fuhrman. So I don't think they're relevant for that purpose either, because he only said it had this wet-like appearance in a couple of areas. And even under these conditions, it took four hours for the glove to become dry, and not even under the Defense theory did Detective Fuhrman have the glove in a plastic bag for a period of four hours. So even their theory of what happened, for which there is no evidence, is inconsistent with the experiment because he would not have had four hours to keep that glove in a plastic bag, and that is the length of time that their expert had the glove in the plastic bag before making his observations. So we submit that it is not relevant for this impeachment theory or this theory of trying to prove that it was planted. Of course, we'd also argue, as we have before, that not only are there no--is there no evidence to support this theory, but it's actually inconsistent with all of the evidence. We have accounted for Detective Fuhrman's whereabouts during the relevant periods of time through other witnesses. We've shown that he did not have the opportunity to collect the glove. He has testified that he did not do so. And a number of people have testified that there were--there was only one glove at the Bundy location. So this is all predicated upon a theory which is entirely 100 percent inconsistent with all of the testimony that has been elicited in this case. The next issue of relevancy that the Defense talks about is the question of shrinkage. And in order to determine whether or not it's relevant, I would like to discuss in more detail what is actually the second prong of the test, which is the material circumstances and whether or not those material circumstances are substantially similar, because it seems to me that there's some overlap here. In order for it to be relevant, there has to be some basic underlying similarity between the experiment and the known conditions at the crime scene. The first one that we already mentioned, your Honor, was that the glove experiment took a four-hour period of drying time and that there is no evidence to indicate of course that the glove was ever in a plastic bag, let alone that it was in a plastic bag for four hours. So that's one area of dissimilarity. The other area of dissimilarity is the amount of blood on the two gloves. The testimony was that--I believe by Miss Brockbank--there was slightly more blood it appeared to her on the Bundy glove than on the Rockingham glove. So apparently, there was not the same quantity on both. But there is no evidence to suggest--

But quantity is a very subjective evaluation.

It is. But there is no evidence to suggest that whatever quantity that was, assuming it could be easily determined, is the same as the quantity that was used in the experiment. And that's the real point. The next point is, there is an issue as to the perspiration, if any, by the Defendant at the time that he was wearing the gloves and how that could have entered into the equation with respect to the drying time, to the shrinkage issue. Clearly, there was no attempt to replicate that during the experiment. And fourth, we mentioned the ambient temperatures. The Defense tried to elaborately suggest from their responsive papers that to the extent that there were any differences in the ambient temperatures and the environmental conditions, that they were minor and that they would favor a quicker drying period as opposed to a longer drying period. But that is not necessarily the point because the point isn't necessarily how long it took the gloves to dry. The point is, have the circumstances been replicated. And it is possible that a quicker drying period could result in a different subjective appearance of the way that the glove looks after it's dried or it could result in more or less shrinkage. We just don't know. So to the extent possible, we want to be as accurate as we can in terms of replicating the environmental conditions. Some of the other environmental conditions that I would like to point out is that I believe under the questioning of the Court, Miss Pilnac testified that it was foggy on this evening when she was in the Bundy location. Mr. Fung testified that there was moisture on the ground at the time that he arrived at the Rockingham location, although he couldn't say for sure that it was as a result of dew. We have a situation where one glove is on the earth. We would assume that that might have some impact in terms of the glove drying time. It may have been wet and then rewetted. It might have been wet at one time as a result of the crime itself and then rewet perhaps as a result of blood flowing in the area of the glove. We have the glove at the Rockingham location on an area that was covered with leaves on cement. So we'd expect that that could have or play some role in terms of the drying of the glove. We have a situation where there's a lot of vegetation in both areas, and apparently this vegetation is falling down onto the area, as we had a lot of berries that were falling down at the Bundy location staining the areas of the sidewalk and an enormous amount of leaves, as I previously stated, at the Rockingham location. So there are a number of environmental variables that go into this that could be relevant. But the most important one and significant one as far as I am concerned is the freezing of the glove by the Los Angeles Police Department after it was collected. And the Defense says in their responsive papers, well, this isn't relevant because Miss Brockbank testified that there was no shrinkage in the glove between the time that she measured it on the 21st of June and the time that she measured it shortly before testimony. But what has to be kept in mind is that no one measured the glove insofar as the evidence is concerned--I don't believe anyone did measure it at all--between the time it was collected by Mr. Fung and the time that Miss Brockbank looked at it on the 21st. Excuse me. That was July, not June. In-between that time, it had been frozen and apparently unfrozen because it was inventoried on the 29th of June by the police. So apparently, it was taken out of the freezer for that purpose.

Let me ask you this, Mr. Goldberg, though. As far as the shrinkage issue is concerned, since I've allowed the Prosecution to conduct the demonstration as to whether or not these gloves in particular fit the Defendant, you know, with the results that we all saw, don't you think they're entitled to present some kind of evidence to explain either how shrinkage occurs or how it doesn't occur since we all agreed that the marking is as--the internal marking says it's extra large. My recollection is that the tag says it's extra large. The internal markings inside the glove indicate they're from the same run. And my recollection also is, Mr. Rubin testified that there was an internal marking that it was an extra large.

Yes. And as the Court noted and as the Defense noted in their responsive papers, I said that the issue of shrinkage is relevant. So as to that prong, we can at least determine that the issue of shrinkage itself is an issue that is relevant in this case. But as to the second prong, the identity of the material circumstances, which is what I'm primarily discussing now, we still have to overcome that hurdle, and that is an independent hurdle of the test. And I think to a certain degree, there is an overlap because if the circumstances are so dissimilar, then the relevancy of the evidence itself or the experiment itself becomes lessened. But at any rate, as I was saying, your Honor, there was some evidence that it was frozen and unfrozen, refrozen and then perhaps unfrozen again and then refrozen prior to the time that Miss Brockbank made her measurements. The other issue with respect to the materiality of the circumstances--

Well, I must confess I--

Since they're all now synthetic.

The next issue, your Honor, is with respect to the substantial identity of the material circumstances, is the experiment, the conditions of rubbing in the blood for approximately 5 minutes or I guess it was 5 minutes. I don't know where they came up with that figure or why they used 5 minutes. And it wasn't the issue of whether they used a latex glove for the purposes of doing it that we were primarily objecting to, but rather the issue of the manner in which the blood was transferred to the glove, which is clearly not how it was done at the crime scene. It could have been as a result of a direct transfer or indirect transfer, but the point is that we don't have any evidence suggesting that the manner of the transfer was similar to the experiment. And then finally--we believe this is also a very important distinction--is that the Defendant's gloves were four years old as we argued. Presumably they had been worn. Maybe they had even been washed. They probably had been subjected to environmental conditions before. And perhaps that wearing of the gloves in some way made them more vulnerable than a new pair of gloves would be to the environmental conditions that they were subjected to at the Rockingham and Bundy locations. I think common sense would lead us to believe that that might be the case, and there was no efforts to try to replicate--

Do you think you should have the opportunity to show videotape of Mr. Simpson wearing gloves in the snow in buffalo?

I didn't hear the Court's--the first part of the Court's question.

Never mind.

Okay. So at any rate, your Honor, there do appear to be a number of circumstances, circumstances here that have not been replicated by the Defense. And then finally--

But isn't the point here that one application of blood, one significant application of blood to the point where they're saturated doesn't account for what appears to be a sufficient amount of shrinkage? Isn't that the point of what they're trying to accomplish?

But in order to do that, you still have--you would still have to replicate all the material circumstances of these two crime scenes.

But doesn't the fact that they sit there and rub it in for 5 minutes--I mean, the jury is under the impression that whoever committed this attack, it was probably done very quickly to incapacitate two healthy we all know to be athletic individuals. The testimony is that it took a very short amount of time. By rubbing it in for 5 minutes, certainly that exceeds the amount of exposure that the assailant would have had on his or her gloves.

Well, I framed the issue just slightly different than the Court did. I'd say that the issue is not whether a single application of blood can shrink a pair of gloves. Rather the issue is, what could have accounted for shrinking of the gloves in this particular case. And that's a materially different or significantly different way of framing the issue and it makes the legal inquiry a lot different because in order to answer that latter question, we do have to take into account the history of the glove, the fact that it was four years old. We do have to take into account the freezing of the glove. We have to take into account all of the variables that would go into the issue of shrinkage. But just in conclusion, your Honor--I don't want to spill over the 15-minute time limit. On the third part of--

But I ask questions.

Okay. Thank you.

If I ask questions, then you get a little more. All right. Go ahead.

The final point in the inquiry is a 352 type of analysis where the Court is asked to look at the probative value of the evidence, which we say is nonexistent for the purposes of impeachment, is virtually nonexistent for the purposes of addressing this issue of shrinkage, and then against that probative value, then take a look at the likelihood of confusing, misleading the jury and the unfairness that would result as a result of putting on this kind of evidence. And we suggest because of all of these circumstances which the Defense has not been able to replicate and probably could not replicate, this evidence does not have any probative value in demonstrating what is the legally and factually significant issue in this case, which is what caused these gloves to shrink or what could account for these gloves under these circumstances to shrink. It has no probative value on the issue of impeaching Detective Fuhrman or suggesting that the glove was planted. Thank you.

Mr. Neufeld.

Your Honor, I don't have to remind the Court of what transpired in this courtroom on June 15th when the Prosecution compelled Mr. Simpson to try on the evidentiary gloves in this case. It was clear to the Prosecution as it was clear to the viewing public that the gloves didn't fit him, that they were too small. As a result of that, in fact, Mr. Darden asked Mr. Rubin if he could give the jury an explanation as to why Mr. Simpson couldn't fit into the gloves at that time. The Prosecution later suggested through Mr. Rubin and other witnesses that the reason the gloves did not fit Mr. Simpson in court that day is because they may have shrunk as a result of being smeared with a large quantity of blood during the commission of the homicides. Mr. Rubin in fact testified that in his opinion, although he had no experimental data to support it, that a large quantity of liquid applied to the gloves could in fact cause the shrinkage. What happened then was, is that Mr. Rubin produced both for the Defense and the Prosecution identical pairs in the same style from the same lot of the gloves in question made by Aris Isotoner. Prosecution over Defense objection then had Mr. Simpson try on the new gloves. The only reason having him try on the new gloves, which clearly do not--are not identical to the evidentiary gloves as they appeared on June 12th and June 13th, and they'll acknowledge that themselves, is because it was their theory that the gloves before June 12th or before the commission of these murders would have fit Mr. Simpson, and they wanted him to try on the new gloves to show that to the jury and make that point. All right. And the Court ruled at that time over our objection that there were substantial replication of conditions to warrant that kind of experiment. All we want to do at this point is rebut an argument that they made. They raised the issue of shrinkage. We didn't.

All right. Mr. Neufeld, then let me ask you to address the two issues with regards to the shrinkage issue that I'm most concerned with, that being the age of the gloves and the impact of freezing and thawing.

All right. Well, first of all, your Honor, let me simply say that they did raise seven conditions or seven objections which they felt we could not replicate. And I believe in our papers, we replicate every single one of those without exception. I would remind you, your Honor, that Professor MacDonell did a controlled experiment here. You even have photographic proof of what he actually did. What's extraordinary, your Honor--and I'll cut right to the essence of it--Mr. Goldberg suggested that one of the issues in fact is the volume of blood. And as what you can see from the experiment conducted by Professor MacDonell, that he poured a lot of blood into the gloves and then continued to rub it in and rub it in, but it wouldn't absorb any more and then the remainder ran off.

If he used twice or three times as much blood, it wouldn't have made a difference at that point. So we were being excessively cautious if you will, bending over backwards to create the worse case scenario for this experiment, and I think he succeeded in doing that. In terms of the weather conditions, your Honor, the only point I want to bring out about that at this point is that he used a humidity chamber. He did use an experimental contraption to replicate the conditions of that evening. The Prosecution's suggestion about the weather conditions, as I point out in my papers, is partly fabricated. There's no evidence at all that these gloves were ever exposed to sunlight. I think you yourself with the jury was out in that narrow alleyway passage where this all happened, and you have the house on one side, you have vine covered fence two or three feet away from it and then trees overhanging the area. Moreover, your Honor, when there's a discussion about it appeared wet and the officers were unable to determine that because he's using a pen light--and I'll defer to your own expertise on pen lights, your Honor. But I would also like to bring to the Court's attention that at the time Detective Fuhrman claims he first viewed the gloves between 6:00 and 6:15, the sun had already been up for a half hour. So there was a certain amount of ambient light even though it obviously isn't direct sunlight over the gloves. So his ability to view those gloves at that point and Detective Vannatter at some time later than Detective Fuhrman certainly has enough light when they make that--when they give that opinion that the gloves were wet, appeared to be wet and shiny.

Well, counsel, you're shifted from the shrinkage issue into the moisture issue.

I'm sorry.

I was interested in freezing and thawing. But since you're talking about the moisture issue, what concerns me there is, how do we measure dryness.

Oh, how does Professor MacDonell measure dryness? In his experiment, what he actually does is, he takes tissue over the gloves to see if there's any kind of wet transfer. And at the point where there's actually no transfer at all and no longer feels damp to the touch, it is deemed dry. That's the way it's done in the experiment. What's most important here frankly, and I think the Prosecutor hit it correctly and I think your Honor hit it correctly, is not so much dryness, but the shrinkage issue. That's the real relevance here. They made it an issue, and all we want to do is respond to it. They used the new gloves to try and raise the shrinkage issue. We're entitled to use the same new gloves to rebut the shrinkage issue, the bogus claim made by the Prosecution. As far as freezing and thawing, your Honor, that's pure speculation. There's absolutely no evidence in this record that freezing and unfreezing and freezing and unfreezing those gloves in any way causes shrinkage. In fact, the only evidence in the record is to the contrary. That from June 21st, 1994, when they were measured by Susan Brockbank to sometime in June 1995, when they were measured again, there was absolutely no shrinkage although it's admitted by everyone involved that the gloves were taken out, put back, taken out, put back in the freezer a number of times. There's absolutely no evidence that that freezer would precipitate any kind of shrinkage. They produced no evidence that it precipitated shrinkage. We are entitled to rely on Brockbank's testimony that during that one year when it was put in and taken out, it never shrank. So that's a non-issue and red herring raised by the Prosecution here.

Most importantly, your Honor, the method used to determine whether there was shrinkage--and the Prosecution suggests that we're relying on the fact that the gloves were tried on by one of Professor MacDonell's assistants to assess shrinkage. We're not relying on that at all. In fact, what Professor MacDonell did is something far more objective than has been done by any of the witnesses to date. Rather than simply putting the gloves down and using a ruler to estimate the length of them as Susan Brockbank and Richard Rubin did where different people could have the starting point at slightly different places and the termination point at slightly different places, he simply puts the glove down on the Xerox machine before running the experiment and pouring all that blood over the gloves and running it--puts it down on the Xerox machine and takes a photocopy of the glove. Then after the blood is put on the glove and after it is dried and before anybody else put their hands in it, okay, to stretch it out or anything like that, the glove is then simply put back on the same Xerox machine, okay, and it is photocopied again.

All right. Counsel, I'm not worried about the measurement technique. That really doesn't--

Okay.

--enter into the Court's concern here.

Fine. Your Honor, I believe that every one of the objections that they raised in their papers is more than adequately responded to with sterling scientific control on the part of Professor MacDonell without exception. As far as the use of new gloves goes, well, they were allowed to use new gloves which certainly don't replicate the condition of the gloves on let's say June 11th, 1994, the day before this incident occurred for their experiment with Mr. Simpson. There was no attempt to do that. And the reason your Honor allowed that is because it's their argument that it's the--it's the smearing of blood and the ensuing drying that precipitated the shrinkage and that's why they were allowed to use these new gloves, even though they could not in no way demonstrate replicate conditions. If they're allowed to use those new gloves, all we want to do is use the same new gloves that they used to show that when this amount of blood and even more blood perhaps is smeared in and rubbed into those gloves for a considerable period of time and so no more blood is absorbed and it's all drained off, that after that, it dries, and after that, you do the comparison, and before and after, and it--there's absolutely no shrinkage, and the jurors will be able to see that for themselves. That's the point. Finally, your Honor, as to their 352 objection, 352 has been used a lot when it's the Defense--they're all of a sudden trying to raise what they call side issues that will lead the jury astray or into some new territory. That's not what's going on here. They raised the issue of shrinkage. They made it an argument. And we, as a matter of fundamental due process, your Honor, are entitled to rebut their argument. There's a whole line of U.S. Supreme Court cases, your Honor, which I'm sure you are familiar with, Chambers versus Mississippi, Washington versus Texas which says Defendant is entitled to put on a defense. It's extraordinary that when this all started, your Honor, the Defense case, one member of the Prosecution staff made a statement that it was time now for the Defense to put up or shut up. We're trying to put up. But every time we want to put on scientific evidence to rebut their argument, they move to preclude that evidence. If at this time, your Honor, the Prosecution is allowed to get away with precluding this experiment, which does nothing more than rebut an issue which they raised, then what they're doing is, they're turning back the clock in this courtroom to a time where Mr. Chambers is being prosecuted in Mississippi or Mr. Washington is being prosecuted in Texas, and I know the Court is not going to allow that to happen at this time. Thank you.

Thank you, counsel. All right. As to the--

Your Honor, do I get the opportunity to respond?

No. 15 minutes a piece. All right. As to the shrinkage aspect, I will allow Dr.--excuse me--Mr. MacDonell to testify, the issue being whether or not a single application of a significant amount of blood can account for any significant shrinkage of the gloves. This experiment appears to be substantially--at least in a single application of a significant amount of liquid, to see whether or not these particular gloves will shrink any measurable amount, I think that's an appropriate thing to present to the jury, and I'll allow that. As to the appearance of wetness, I'll sustain a 352 objection. The problem here is that appearances of what appears to be wet and what appears to be dry is very subjective and there's no measure for that. I have here up on my blotter right now many ink spots, some of which appear to be wet, and but I know have been here for years. They're dry, but they still have a shiny appearance to it. The testimony was, it appeared to be moist, that the fingers appeared to be stuck together and the photographs indicate that that's so. I think the probative value of that evidence is so slight and the amount of time that we would spend going into the testing and measurement would be an undue consumption of time. All right. That will be the Court's ruling. Also, Mr. MacDonell gets to testify as to the powder or red spherical things in the socks tomorrow.

As a clarification, your Honor, is the Court going to allow the plastic bag experiment?

No. The drying experiment is not part of this. It's the application of blood in the shrinkage of the gloves is what the Court's allowing.

I will not elicit any testimony ultimately about how it appeared.

Right. Okay. We are in recess. 1:30.