Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Douglas. The People are represented by Mr. Kelberg, Mr. Lynch, Mr. Darden, and Miss Clark. The jury is not present. Counsel, anything we need to discuss before we invite the jury to join us? Mr. Kelberg.
Yes, your Honor, to follow up on several matters that we briefly discussed last evening. First of all, I have informed Mr. Shapiro, and Dr. Lakshmanan has had a chance to as well, the document or documents in the category, I should say, because this is not evidence that we are aware of that any specific such document exists, but Mr. Hernandez, who is the director at the medical examiner's office, had no independent recollection of seeing any such document, but he was at home when he was contacted last night. He is checking this morning and he will contact us, and if he has them by about 9:30 or ten o'clock, 10:30 break, Dr. Lakshmanan will call him, because he was going to check through the records of which he is the custodian and has them to see whether any such type of document exists.
The second order of business, we have been talking about other people's mistakes for about six or seven days. It is appropriate I think for me to talk about one of my own with respect to exhibit 363. The Court will recall in that short portion of the Primetime Live broadcast that there was left in the audio portion a statement made by Mr. Donaldson as he is chasing after Dr. Golden about an alleged gun incident. Undoubtedly the Court recalls that the Court was the recipient of much paperwork and heard much argument regarding the admissibility of any such incident. It was a motion in limine filed by Mr. Lynch and myself to exclude such evidence from cross-examination in the event Dr. Golden testified. The Court issued its ruling, I have it here on April 7 of 1995, and if nothing, should, out of an abundance of caution, basically I'm asking the Court to reinforce that that is its ruling in spite of my error in not verifying that that portion of the tape had been excluded or excised. I point out, first of all, that the Court's ruling indicated that the remark only had relevance with respect to potential bias on the part of Dr. Golden. And I don't know if the Court needs a copy of its ruling. I have a copy if the Court needs it, but the Court did not rule that it was admissible on the issue of Dr. Golden's competency, but only that it might be relevant on Dr. Golden's potential bias on the issue of the Defense. And the Court went on to find under section 352 that there were so many uncertainties with the incident itself, no. 1, whether it was directed to these Defense counsel and how the incident occurred and so forth--
All right. That there is nothing about the incident which is relevant to Dr. Lakshmanan's testimony which deals with Dr. Golden's competency and about which there was a statement made by Dr. Lakshmanan in that interview regarding Dr. Golden's competency. So I would ask the Court to reaffirm that its ruling stands, that my mistake has not in some fashion "Opened the door" to make what the Court found to be inadmissible suddenly admissible. That is the first aspect of my motion in limine I made this morning.
So let's assume that I agree with you that that should not have come in. What direct remedy are you seeking?
My remedy is I don't believe we can excise that statement from the disk and say, gee, it was never played before this jury. What my remedy would be is to provide a second copy of the exhibit which has had excised from it that statement, and in the event the jury wishes to hear that exhibit, 363, what they would hear would be the same exhibit but with that one statement excised. I don't think that any reinforcement of that information needs to be made at this point to the jury. It is obviously why I didn't make any effort to stop the tape and raise any issue as to admonishment regarding it as the tape was being played. So all I recommend, as a remedy, would be to order our office to make a second copy of the exhibit, but one which has excised that one statement and only that one statement, have it marked as exhibit 363-A, and that will be the one that will be offered in evidence, I assume, by Miss Clark or Mr. Darden at the conclusion of the People's case when all of the evidence admissibility questions will be litigated. At least I assume that is when that will occur, so that is the remedy I suggest.
The Court will recall that prior to the Sam Donaldson interview being played the Court invited counsel to side bar and the Court warned Mr. Kelberg that this may not be something that should be shown and the Court indicated that you would sustain our objection to showing it. We indicated that we had no objection to showing it and Mr. Kelberg indicated that although it was not his preference, he had been told by others in his office to show it. Second, the Court rules were violated in that this tape was never previewed before your Honor and myself before showing it, although I have seen it and I had no reason not to have it shown, because it does exactly what the People have said throughout this trial, it talks about the truth, about really what happens in the Coroner's office and what happens when fine reporters investigate problems that for some reason the Coroner does not want to investigate themselves, and even when pointed out, they don't want to investigate it. So this is no different than anything else that takes place in a trial. We are professionals, we are bound by rules of conduct, and on occasion there are questions that come out that if you had your chance to edit them, I would like to have them withdrawn and not have them considered. That is exactly what took place here. Further, I didn't want to press the issue of bringing up the incidents with Dr. Golden's gun, and after it was brought up, we didn't have any specific knowledge that it was directed towards any attorney. However, following your Honor's suggestion in the past, we did a Lexis search last night regarding Dr. Golden and we found an article August 12th in Newsday which in summary says: "As Dr. Golden left the courthouse, after being cross-examined by Robert Shapiro, Golden pounded the walls of the elevator and cursed Shapiro muttering `why did he have to ask me that question? Why did he have to ask me that question?'"
Then they go on to report: "The gun incident followed." There was a subsequent report that the comments were actually not only directed towards lawyers for Mr. Simpson, but directly towards me, and I will give the Court and counsel a copy from Lexis of that story from Newsday. So it is our strong feeling that the People had this piece of tape, they elected to show it. After it was shown it appeared to me that Miss Clark directed Mr. Kelberg to the problem that was raised and that is when it became an issue. And the fact that there is no coordination or lack of coordination should not be held against Mr. Simpson. Here is the story from Newsday. May I give this to your Honor?
I would like to respond, your Honor. Your Honor, I never take exception to counsel employing hyperbole and I certainly understand why the federal courts do not allow cameras in the courtroom to cut down on the hyperbole of counsel, but I take great umbrage when counsel misstate the facts. Let me state the facts as to that side bar conversation. The facts were that the Court wondered whether there was going to be an objection made to it. The Court never indicated the Court would sustain an objection or not because the Court was unaware of the contents of that particular episode.
I believe the Court is absolutely correct in that, and I think the Court will acknowledge that I told the Court the content of what I expected the program section to show. Mr. Shapiro was asked, in essence by the Court, as I recall it, if he had any objection. Mr. Shapiro indicated he had no objection. The Court basically said, fine, and then we were going to proceed. Now, with respect to some representation that I was given instructions on playing this, let me set the record very clear, your Honor, if it hasn't been made clear already. When I am in court representing the Prosecution with witnesses, nobody tells me what to do from my office. I am our lawyer in Court. It is my judgment, it is my theoretical considerations that go into the tactics that I entertain in presenting testimony. And I can guarantee Mr. Shapiro and I can guarantee this Court that Ms. Clark had absolutely no input into any decision as to whether this would or would not be played. The decision was mine, mine alone, and I have no regrets whatsoever about doing it and I have no doubt that the evidence would have been admissible had Mr. Shapiro, as his first area of cross-examination, gone into Dr. Lakshmanan's assessment of Dr. Golden's competency in performing these autopsies. This jury has a right to know that Dr. Lakshmanan made a comment that I also believe he rues having made to Sam Donaldson, and I must say I believe this jury will see the kind of ambush tactics employed by Mr. Donaldson and find that if that represents sound journalistic practices, then there is a definite problem with the way the fourth estate practices its profession. Now, with respect to a conversation with Ms. Clark, let me point out my conversation with Miss Clark was with respect to the limited amount of time we had left yesterday afternoon, and I indicated to Ms. Clark I had various alternative pieces of evidence which I could play, and because I don't know what her schedule is and whether she can stay until a quarter to 6:00 or not, I wanted her to know what was available and she indicated that she would prefer that we play this incident. I said fine, because quite frankly, your Honor, it is either yesterday afternoon or it is this morning, and to my way of thinking, it makes no difference whatsoever. I have a plan in my mind as to how the evidence will be presented, and as long as I present that evidence, to me it makes no difference at all, so to accommodate Miss Clark's request, and in full agreement with her request, I played the tape at the time I did. I find it most interesting that Mr. Shapiro, instead of posturing for the camera, would have focused on the argument I made to this Court a moment ago, that he might have tried to respond to the issue, is this relevant to any issue regarding Dr. Lakshmanan? And the answer I believe has to be taken as tacit acknowledgment by him that it is not, because the Court found it was relevant, if at all, to bias. Now, Mr. Shapiro is relying upon a newspaper article, which of course is hearsay, reporting an alleged incident with Dr. Golden in the elevator.
The only issue is what do we do with 363? So why don't you confine your comment to that, counsel.
With 363 my suggestion is, as I indicated--Mr. Shapiro has offered no alternative suggestion--I merely indicated a belief that the portion should be excised to conform with the Court's ruling, marked as 363-A, and that would be admitted. But on the other hand, I will tell you right now, Judge, the alternative remedy, keep it as is. They want to hear it, let them hear it. They send a question out, hey, do we have any evidence about some gun incident? The answer is going to be a big n-o and you are not to infer or speculate about any such evidence. Either way it is fine with me, I don't care, but I came down here because I made a mistake, I wanted it brought to the attention of the Court. I wanted the Court to handle it in an appropriate manner and that is the purpose behind that. So either alternative is fine with me, Judge.
There is a second aspect to the motion, not to the tape itself, but as to the two incidents, the Gay Phillips incident. Mr. Shapiro has indicated at the side bar also last night that he believes evidence of the legal significance of Dr. Golden's mistakes are fuel for fodder or fodder for the cross-examination of Dr. Lakshmanan. As the Court will recall, I asked Dr. Lakshmanan whether or not there was any medical significance to Dr. Golden's mistakes dealing with entrance/exit wounds and dealing with the range of fire in the two cases. Dr. Lakshmanan indicated that they were significant mistakes and he testified in his opinion why they were. The question is what is the legal ramification that flows from each of those? The legal ramification is irrelevant to the issue of the medical significance because the whole thrust of this evidence goes to the significance or lack of significance of any mistakes Dr. Golden has made in the course of the autopsies he has performed.
Let's assume that to be true, though. Isn't it fair game for the Defense to then argue that point during closing argument, that given these medical mistakes, obviously they are going to have a legal consequence if they are believed by the trier of fact and if they are in fact false or not true.
It may well be a legitimate argument to suggest that many things can flow from medical mistakes of significance, and I would not find it inappropriate to argue in the abstract, keeping in mind there would be no evidence, because I am indicating to the Court my belief that such evidence is inadmissible as irrelevant, 352, calling for speculation, outside the expertise of this witness and a number of other grounds.
Well, Mr. Kelberg, I am not inclined to entertain much more of this argument. At this point it he is premature. You haven't finished your presentation. I don't have an indication that the Defense is going to offer that.
All right. I just want to alert the Court then because I would ask for a ruling in the event Mr. Shapiro intends to go into that area on cross-examination of Dr. Lakshmanan.
All right. Thank you. All right. The Prosecution is ordered to prepare an alternative exhibit 363 which will be designated 363-A. It is to include the entirety of what was played yesterday, with the exception of the comments regarding the gun incident. The Court still finds that subject to 352. All right. Let's have the jurors.
Actually let me modify that. I want both a video VHS of 363 and 363-A, since we won't be able to provide the jury with a laser disk player.
363. We will substitute a videotape for a laser disk as 363, unless you want to donate to the Court a laser disk.
We have been talking about other people's mistakes for about six or seven days. It is appropriate I think for me to talk about one of my own with respect to exhibit 363.
When I am in court representing the Prosecution with witnesses, nobody tells me what to do from my office. I am our lawyer in Court. It is my judgment, it is my theoretical considerations that go into the tactics that I entertain in presenting testimony.
'As Dr. Golden left the courthouse, after being cross-examined by Robert Shapiro, Golden pounded the walls of the elevator and cursed Shapiro muttering `why did he have to ask me that question? Why did he have to ask me that question?'"
I find it most interesting that Mr. Shapiro, instead of posturing for the camera, would have focused on the argument I made to this Court a moment ago.
The Court's comment was, 'Mr. Kelberg, where are we going with this?'