Back on the record in the Simpson matter. The Defendant is present again with his counsel. The People are represented. The jury is not present. Good afternoon, Mr. Shapiro. You had something that you wanted to comment on?
Your Honor, yes. We would like to address the Court regarding evidence that we would like to present before the jury regarding findings of Judge Pounders in two homicide cases that were autopsied by Dr. Golden and where the cause of death in both cases had been changed after the Defense brought in their expert witnesses.
Not the cause, I'm sorry, the type--the circumstances surrounding the death. One, there was an exit wound versus an entrance wound that was later changed, and one was also the distance at which a weapon was filed--was fired. Both of those cases were capital murder cases against one Defendant as a result of the change in the findings by Dr. Golden, as well as the lack of a witness. Those cases were dismissed and Judge Pounders made a finding of factual innocence. We would like to bring that to the jury's attention.
By simply asking this witness are you aware--by simply asking Dr. Lakshmanan are you aware that as a result of the mistakes that were made by Dr. Golden in these two autopsies that these cases resulted in somebody who was being prosecuted for capital murder having the charges dismissed on the motion of the District Attorney?
What is the basis of this information? I mean, do you have the certified court documents available?
Yes. I actually have the District Attorney's file, the internal memorandums from the District Attorney who handled the case, to Mr. Sundstedt who was the person who made the approval.
No, but my question is, I mean, the District Attorney's file is oftentimes an interesting source of information, but it is not the official court record.
The official court record has been destroyed based on a finding of factual innocence.
I was told by the attorney who filed the petition that the record does--we tried to find it. The D.A.'s tried to find it yesterday; they couldn't. The only record was their file and the only record that the Coroner has are there are two autopsy reports.
Your Honor, so that the record is complete, Mr. Shapiro had the opportunity, both to peruse our file and speak at length with Mr. Grace who was the Prosecutor on the case. Obviously this questioning, in my judgment, A, calls for hearsay, lack of foundation as to what Judge Pounders did or did not do. B, is completely irrelevant. The issue is the mistakes of Dr. Golden which are relevant only as to his competency, mistakes which are significant from a medical perspective. Dr. Lakshmanan is no better qualified to talk about the legal significance than would be the ordinary lay person. Dr. Lakshmanan is a forensic pathologist; he is not a lawyer. The third item is, just so the record is correct, there has been no contact between Mr. Grace and Dr. Lakshmanan, or really any other person in the Coroner's office, regarding any mistakes by Dr. Golden in these two cases, the Gaye Phillips cases, and that what Mr. Shapiro said on the record he was led to believe existed simply is not the case. There is no such communication. Dr. Lakshmanan knew nothing more about this until this matter was raised as part of the prime time live materials and the Framalino letter from a reporter with the Los Angeles Times. In fact, what the District Attorney's office file reflects, and what was confirmed by Mr. Grace, is that our office moved to dismiss the charges based in part on Dr. Golden's change of opinion and the memorandum does not talk about mistakes, just change of opinion, and that that change of opinion contradicted the testimony of an eyewitness who was the primary witness on which the Prosecution was based. And compounding the change in circumstances that that situation created, that eyewitness was apparently not able to be located, so as a result of that combination of circumstances, a recommendation was made to have the charges dismissed, and that recommendation was approved by the appropriate chain of command in our office, and what happened from that point on, obviously it was dismissed, and Mr. Grace is in a position to say it was dismissed, but there is certainly no recordation that I reviewed from a minute order or a transcript to reflect the circumstances when I assume Mr. Grace moved the Court formally for a motion to dismiss.
Are you aware of any authority to destroy a court file after a finding of factual innocence?
Your Honor, I am not aware that the court would destroy any file on such a finding. I believe the penal code dealing with sealing of records on findings of factual innocence is probably what Mr. Shapiro is talking about in order to protect the person who had been accused from having to disclose or have available to outside review these materials, but I am not aware of any statute which would either authorize or approve the court destroying the court's file on the basis of a determination of factual innocence.
Legal bases of my objection are multi-fold. No. 1, it calls for hearsay, lack of foundation. If Judge Pounders said something and did something, it has got to be from Judge Pounders' mouth or from some admissible document that qualifies as an official record. As the Court is well aware, judicial notice may not be taken of everything that is in a court file, and that in fact many of the matters that are within a court file are subject to the same hearsay exceptions, like official records, but you've got to be able to lay a foundation. And obviously there is no such record here, even if the Court was being asked to take judicial notice. So hearsay, no. 1. No. 2, it is irrelevant. It is irrelevant to the issue of whether Dr. Golden is a competent forensic pathologist or not. What is relevant, as the Court found, is did he make mistakes that reflect upon his skills as a medical examiner? And secondly, if he did make mistakes, are those mistakes of medical significance, because if they are significant medical mistakes, then it clearly goes more to demonstrate a lack of competency than if they are insignificant mistakes which have really no reflection upon his skill. Dr. Lakshmanan is eminently qualified to evaluate the medical significance of any such mistake, but he is not a lawyer, he is not a Judge, he is not a qualified expert witness on the subject of the legal significance. And he would be unable to know the legal significance because it was Mr. Grace and the people in our office who at least initially made a determination to move to dismiss. The record, at least in our file, is clear that the bases for that motion is not either exclusively on the grounds of Dr. Golden's mistakes or necessarily on the grounds that they are mistakes; it is on the ground that the evidence produced by the amended opinion reflects inconsistency between that opinion and the eyewitness account which makes the case problematic, followed by the unavailability of the witness, even if one wanted to believe the credibility of the witness over Dr. Golden's amended opinion. As a result of which all of this is speculative, 352, irrelevant, outside the scope of expertise of Dr. Lakshmanan, calling for hearsay, lack of foundation.
Foundation we can get in by doing what I would prefer not to do, and hopefully do by stipulation, since there are no facts in dispute, by calling Mr. Grace who in fact was the Prosecutor in the case. The real issue is so that this jury is not confused and misled. Dr. Lakshmanan continued, under questions from the Prosecutor, to say that none of these things affect what he refers to as big ticket items. Nothing affects the cause of death or the manner of death. What we want to demonstrate--and therefore it doesn't affect the competency of Dr. Golden. What we want to demonstrate to the jury is even though the cause of death was not changed in two cases where Dr. Golden testified, they both died of gunshot wounds, and even though the death certificate was not changed because that was the same, the findings that he made, that is Dr. Golden, as a forensic pathologist, changed the course of events for somebody who was prosecuted and caused in part somebody who had been in jail for three years to be released and a finding of factual innocence. If that is not a major item and a major piece of evidence for a forensic pathologist to have, there can be no bigger area for a forensic pathologist to examine, and that is what we want the jury to know. The Prosecution has tried to narrow to a great degree certain issues and take away everything else that a forensic pathologist has to do and has to look for, and that if those opinions are incorrect, then the jury now is left with the idea, well, these, according to the Prosecutor and Dr. Lakshmanan, are not important. Well, an exit wound and an entrance wound not only is important in making a correct analysis from the point of view of a medical examiner, it is essential when it comes to guilt or innocence, and he is making several similar opinions in this case and he is relying in part on his opinions based on the work of Dr. Golden. And I think it is important for the jury to know how significant these errors really were.
All right. Mr. Shapiro, I think I have allowed wide latitude to the Defense to cross-examine Dr. Lakshmanan regarding Dr. Golden's competence. I allowed going into the--these other cases where significant mistakes were made. I think, though, to ask these questions of Dr. Lakshmanan would be, one, asking him to come to a legal conclusion which I don't believe he is competent to make. I think that we have a lack of foundation here for the legal conclusions. We don't have a court file. There is nothing I can take judicial notice of. And I think under 352 we also have a problem that there are too many other factors that Mr. Kelberg mentions that went into the decision to dismiss the case, beyond just the issue of Dr. Golden having made a mistake as to the entry, exit, and proximity. That issue has already been clearly presented without ambiguity to the jury that he has made those mistakes and what the legal consequences are. The explanation for that will take more time than it is worth at this point. We have established the point that Dr. Golden made a mistake, so I will sustain the objection.
Your Honor, just for the record, may I make an offer of proof that we could meet the foundation requirement?
And we could meet that very easily by calling the Prosecutor in this case who will substantiate what I have said, by calling Mr. Lindner, who was the Defense attorney in this case, who will substantiate it. I have not talked to Judge Pounders, but because this case was so unusual it is the opinion of both lawyers that he would recall this independently, so I think we could get over that foundational requirement and would present that to your Honor. Second, just for the record, we would like to mark as exhibits to be part of the court file the letter from Charles Lindner to Robert B. Grace explaining the errors that were made, the summary and findings by Deputy District Attorney Robert grace, and two District Attorney forms which are the disposition reports and the recommendation for dismissal. We would like to incorporate these as a joint exhibit along with the protocols of the two decedents and autopsy reports, for the record only.
even though the cause of death was not changed in two cases where Dr. Golden testified, they both died of gunshot wounds...the findings that he made, as a forensic pathologist, changed the course of events for somebody who was prosecuted and caused in part somebody who had been in jail for three years to be released and a finding of factual innocence.
our office moved to dismiss the charges based in part on Dr. Golden's change of opinion and the memorandum does not talk about mistakes, just change of opinion, and that that change of opinion contradicted the testimony of an eyewitness who was the primary witness on which the Prosecution was based.
I think, though, to ask these questions of Dr. Lakshmanan would be, one, asking him to come to a legal conclusion which I don't believe he is competent to make.
an exit wound and an entrance wound not only is important in making a correct analysis from the point of view of a medical examiner, it is essential when it comes to guilt or innocence, and he is making several similar opinions in this case and he is relying in part on his opinions based on the work of Dr. Golden.