Your Honor, two items. One is, in front of the jury, Miss Clark erroneously represented to this jury that Prosecution did not receive the notes of Professor MacDonell from the April 2nd visit and inspection of the socks. That was just flat out wrong. I'm not going to attribute a motive. I have no idea what was in her mind, but it's flat out incorrect. I have given the Court a signed copy of an acknowledgment of receipt of discovery signed by Mr. Darden on July 17th, 1995, in which, if you see, item no. 3 on that sheet are the laboratory work sheets of Herbert MacDonell dated 4-2-95. In fact, when the report was typed by a member of Mr. Cochran's office, she mistakenly said there were two pages of notes. When Mr. Darden looked at the notes, he observed that there were three. And so he crossed out the 2 and he wrote in the 3. The three pages of notes were inspected again by Miss Clark this afternoon. She has really--I mean, I think it's just completely inappropriately--tried to prejudice Mr. Simpson by suggesting to this jury that the Defense did something tricky in not turning over those notes.
The notes were turned over. There's no question they were turned over. If by chance Mr. Darden didn't get them to Miss Clark or Miss Clark may have misplaced them, I have no idea where this inadvertent mishap occurred. But the bottom line is, those notes, the very same notes that he just showed to Miss Clark during the cross-examination were turned over to Mr. Darden on July 17th, 1995, and he signed for them. And I believe, your Honor, that at this point in time, what has to be done is, this jury has to be told specifically that that was erroneous, that in fact, those notes had been turned over on July 17th.
No. It's July 17th. Those notes had been turned over on July 17th to Mr. Darden and that he signed for them, and there is a receipt to prove it. I would ask for that. I would also ask in addition, your Honor, that--because I think to make that kind of remark in front of the jury is incredibly reckless and is a reckless disregard for the truth when she should know better--that it warrants a monetary sanction as well from the Court.
I suggest $250, your Honor, which was the last sanction she received. I also suggest a sanction, your Honor, against Miss Clark for having blurted out or attempted to blurt out that she was impeaching Professor MacDonell with a case after on--before direct examination, we set ground rules, your Honor set ground rules that she was not allowed to mention any cases at all without first approaching for a sidebar. That warning was reiterated this afternoon just before I began my--I'm sorry--just before I completed by direct examination and Miss Clark began her cross-examination, and your Honor affirmed that to her. She knew it darn well and she ignored it, having been warned twice. And I think that also warrants a sanction, your Honor, the amount of which I can leave up to the Court. But I think--
Well, let me ask you this, Mr. Neufeld. If you recollect, when you brought that matter up at the sidebar--and if you recollect, I'm the one who I think invited us over there in the first place--I indicated that I would take that matter under submission, the request for sanctions once I saw the testimony, see--saw what it was and determined the--how bad a violation it was.
And do you want to expound upon how bad a violation you felt that was or what the damage was to your client as a result of that?
Your Honor, the only point I would make is, there was a suggestion based by bringing up a case in her remark about, "Well, didn't you testify in this case that," and then she mentioned the name of a case, there was an inference that she was in fact asserting at that point that he was somehow testifying differently here in Court than he had been in some other case. No. 1, that's not true. No. 2, you looked at the transcript in fact that she was referring to and saw that one had absolutely nothing to do with the other.
No. He said the same thing. He said it's tough to see blood on dark fabric is what he said.
Well, that's--what I'm suggesting is, by her then trying to say to him, "Isn't it a fact that you said something in this case"--she didn't get a chance to actually get out what it was because that's when you cut her off and asked for a sidebar. But the jury is left with the impression that either it's a more extreme statement or it's a different statement. It's something other than what the witness articulated from the witness stand. That's the whole point of trying then to refer to someone's testimony in another case. Otherwise, it wouldn't be brought up because it wouldn't be impeachment. That's how lawyers get to refer to other cases. The jury by this time is already primed because it's been a technique utilized by lawyers on both sides for impeaching witnesses; that when they hear the person start referring to some other case in your testimony, they believe they're about to hear impeaching contradictory testimony, which they didn't hear here. Granted it is not the most substantial act of misconduct on the part of the Prosecutor in this case, and I'm not asking that the Court treat it as such. But I do believe that in terms of--in terms of your own desires to be even-handed and to maintain order here, that if the Prosecution were warned twice not to do it and did it anyway, that some type of sanction is appropriate. I think frankly, what she did, vis-à-vis the notes, is a far more serious matter because it did--there's no question in my mind that it does immediately and directly prejudice Mr. Simpson and certainly Mr. Simpson's lawyers by suggesting that we by trickery didn't turn over certain notes that we were required by law to turn over when in fact they had been turned over.
I have never seen law practiced this way with lawyers asking for monetary sanctions against the other side. Never. Never. I am dismayed and I am embarrassed and I am ashamed of my profession when I see it practiced like this. I would never ask for a monetary sanction to be imposed against any member of Defense counsel, not one. That's for the Court to do if the Court deems it appropriate. But I would never ask for such a thing, and I think Mr. Neufeld should be ashamed of himself. Now, with respect to the discovery violation, your Honor, I was deceived. The witness referred to notes. I've never seen any notes. I didn't know what he meant. When he said "Notes," what he actually meant was simply a document that introduced the fact that he had received the evidence at a certain point on a certain date, described what that evidence was and then two pages of diagrams. He called those notes. I didn't know that. When I say "Notes," I think of written documentation like Dr. Lee made detailing observations of what he saw. There was no such thing. Now, when he said notes, I was surprised because I did not characterize what he had as notes. When he showed me what he had, I realized that the first page on which he had writing I had never seen. Never seen. So as far as sanctions go, which goes to good faith or not, I had extremely good faith. I had never seen that before. Nevertheless, I didn't make a big deal about it. Quite the contrary. What I did was to minimize it in front of the jury and point out the fact that those quote, unquote notes are nothing more than two diagrams and a description of the evidence and the date he received them, and he agreed that that was so. And we further pointed out that those quote, unquote notes made no characterizations of what he saw, did not detail his observations or his conclusions or any observations that he made of the socks or anything that went on. So it is appropriately before the jury accurately exactly what that is. Talk about diminimus? That is very diminimus. Had the witness not characterized something as notes, which I would never have characterized in that manner, that exchange would never have occurred. I was taken by surprise. I had not seen that first page. I don't consider it a big deal now that I see what that first page is, and that is why I didn't ask to approach and ask for sanctions against counsel at that very moment. I could have. I could play the same game they're playing and every nitpicky little violation, I demand sanctions and I demand they be put in jail and I demand they be held in contempt. I don't do that. I don't need to do that. I can just practice law. I can just try my case without playing these little games here about nanny, nanny, nanny and neiner, neiner and who's got the last sanction, who's going to pay money this time. This is--this is sickening, you know, what we've descended to in this case. And Mr. Neufeld stands before you because the witness characterized something as notes that no one else would so characterize, and because I'm taken by surprise by that, that in questioning him about it because I see something I've never seen before, and stand before you and say that deserves monetary sanction, first of all, those words should never leave his mouth. Second of all, to make the mountain out of the molehill that this is ridiculous. But I was taken by surprise by the witness' characterization. The page I saw I had never seen before. It has now been accurately assessed in front of the jury. And I don't know what kind of impact the Defense would like to have, but I can guarantee this Court that I will bring out with questioning from the witness that the two diagrams that he referred to I had seen before. And if the Court wants me to further inquire of the witness whether or stipulate that that was turned over, that one page of document, receipt--I've never seen it, but if the Court wants me to indicate to the jury in some manner or stipulate that it was turned over on July 17th, I will do so. I don't have any problem with that. But a sanction? I mean, I think that we have really gotten into the outer limits here. With respect to the case that was cited, your Honor, that case simply cited in support of what the witness was saying. And it was very clear I wasn't impeaching him, because what my statement was, as I recall it, is that he said yes, it's difficult to observe blood on dark clothing, and I said, "Yes. And didn't you so testify in the case of People versus Briggs," totally consistent with what he said here. It was corroborative. And I wanted to discuss with him the circumstances of that case as--by way of analogy. The Court's precluded me from doing it so far, but I think it's relevant because he went to some lengths to try to visualize the blood for the jury because of the difficulty they would have in seeing it, and I think that's an important point to make.
He didn't do that in this particular case, but it could have been done. In any case, that's all it was. It's corroborative of him, not impeaching of him at all. So what is the damage done there? There is none. I inadvertently forgot to approach. And had I intended to impeach the witness or do something damaging to his credibility with it, I think it would have occurred to me sooner to approach. However, in light of the fact that it was simply corroborative of what he was testifying to, I didn't see this as a harmful thing. And counsel concedes--
KEY QUOTEBut do you recollect being directed on at least two occasions that if you were going to refer to a transcript, that before you did so, you were to ask to approach so that I could rule upon whether or not it could be used for that purpose? Do you recollect that?
Yes, I do, your Honor. I do. And I should have done that. And I simply forgot. And as the Court recalls, I did do so on a subsequent occasion with respect to another case. But I forgot. I forgot. This has been--this has been a very contentious bit of testimony. There's been a lot to be concerned with and a lot of argument back and forth about what the witness can testify to and what kind of questioning is going to be permitted, and so I forgot. I'm human.
I'm sorry. Hold on a second. Mr. Darden, do you acknowledge that you received a copy of the three pages of Professor MacDonell's work sheets that were dated April 2nd?
All that I can do is this, your Honor. Whenever I've given or provided discovery by the Defense, I look at the documents. I count the pages. I don't know that--I don't recall what the notation is on this document.
What I see is laboratory work sheets of Herbert MacDonell dated 4-2-95 and three pages. When I heard the witness say notes, I didn't recall having seen any notes. I didn't equate his use of the word "Notes" with lab work sheets. But I count the pages and I look at the documents when I receive them from the Defense. And so I certainly received a three-page document relating to the witness' lab work as they related to the sock. And I would indicate this as well.
Once I receive these documents, I hand those documents to a law clerk. I don't keep them here in court. I turn them over to a law clerk immediately so that they can be documented as having been received upstairs. They're supposed to be circulated to Miss Clark and myself. That does not always happen.
I don't know, Mr. Darden. If I were a trial lawyer who had the job of cross-examining an expert witness from the other side, I would certainly want to see every note that was ever produced or anything that had been produced by way of discovery.
Well, Judge, if you look at that 3, the "3" written on that paper--I believe I'm the one that wrote that 3. I corrected the two pages. So obviously I'm paying close attention to that. But there's 40,000 pages of documents and transcripts and other things in this case. We assume that we get everything. I am often surprised to find additional things like some stuff I found on Christian Riechardt just Friday. I was amazed to find that. But it's been upstairs for weeks. It happens. I just don't think that every violation is--you know, warrants this type of reaction from the Defense or reaction from the Court. This is litigation and these things happen. I mean, I've seen Mr. Neufeld approach witnesses on direct with documents he's never shown us. I mean, it happens. It just happens.
Okay. One is, she chose to make it an issue in front of the jury. She could have at that moment asked to approach the sidebar and didn't do that. And I think that exacerbates the whole problem.
Well, I have the transcript of the entire discussion, which goes on for all of three lines. It's not a huge discussion.
I understand that. But there was still--the suggestion was made in front of the jury that didn't have to happen that way.
That's correct. I agree with you that the assertion that the notes had not been turned over is clear in the record and is incorrect. I agree with you 100 percent.
KEY QUOTEAnd the second thing, your Honor, is, I agree that perhaps lawyers shouldn't be asking for monetary sanctions. But one--but Miss Clark's memory is somewhat failing her on this point because she on more than one occasion at sidebars for the volume of my voice was suggesting that the Court impose sanctions against me. And, your Honor, all I'm--I just feel that perhaps I reacted to her and what she did here because of the suggestions and her request for sanctions against me on earlier occasions. And she's right, that it is sad that that has to be the situation. But it is in that context that I made that remark, your Honor. The only other thing I had to say, your Honor, about the other aspect, which was the referring to the case, I think that the fact that it didn't impeach and she knew it wouldn't impeach makes the blurting out of the case all the more inappropriate. Thank you.
Very briefly. This goes to the expert's opinion and the fund of knowledge that he draws on for his expertise. And so prior case work that tends to corroborate or support his opinion is fair--is fair grist for the mill in cross-examination of an expert.
But the problem is--I don't care so much about that. I agree there are many things that you can cross-examine an expert about, his or her qualifications being a very broad area. I agree with that. I think you could have more obliquely approached that particular area regarding the difficulty of seeing blood spots on dark materials. That's not the issue. The issue is the Court's direction to counsel that before any transcript was to be used, that you were to approach sidebar and ask for direction from the Court. That's the problem. What I can't do at this point is--I've apparently used the wrong word search inquiry here and I keep coming up with the wrong cites to the transcript. I want to review exactly what was said, the context in which it was done. At the very least, tomorrow, I'm going to instruct the jurors that the inference that the notes had not been turned over was in fact incorrect, that they had in fact been turned over in a timely manner to the Prosecution and that the jury should disregard any negative inference to Mr. Simpson and his Defense counsel. Secondly, I'll take the matter of monetary sanctions or other sanctions under advisement until I've had the opportunity to check the transcript. All right. Anything else? Yes. Anything else?
Your Honor, for the record, I never asked for Mr. Neufeld to be sanctioned because of the volume of his voice. The Court will recall when that occurred.
But in any event, let's not--no. This issue is over unless both of you want to get sanctioned without any recourse to the transcript. All right. Grand jury testimony. Mr. Uelmen.
I have given the Court a signed copy of an acknowledgment of receipt of discovery signed by Mr. Darden on July 17th, 1995, in which, if you see, item no. 3 on that sheet are the laboratory work sheets of Herbert MacDonell dated 4-2-95.
I have never seen law practiced this way with lawyers asking for monetary sanctions against the other side. Never. Never. I am dismayed and I am embarrassed and I am ashamed of my profession when I see it practiced like this.
I could play the same game they're playing and every nitpicky little violation, I demand sanctions and I demand they be put in jail and I demand they be held in contempt. I don't do that. I don't need to do that. I can just practice law. I can just try my case without playing these little games here about nanny, nanny, nanny and neiner, neiner and who's got the last sanction.
That's correct. I agree with you that the assertion that the notes had not been turned over is clear in the record and is incorrect. I agree with you 100 percent.
If you look at that 3, the '3' written on that paper — I believe I'm the one that wrote that 3. I corrected the two pages. So obviously I'm paying close attention to that. But there's 40,000 pages of documents and transcripts and other things in this case.