Initially, your Honor, Mr. Lynch, on my behalf, filed two letters with the Court and copies to Defense counsel asking for clarification with respect to the Court's order on photo 50, asking for reconsideration with respect to crime scene photos 39 and 40, which was, I believe, still under consideration by the Court, as I understood the Court's order, and--
Well, as to 39 and 40 there was no clear explanation, either in argument or in your letter in support, indicating to me why that was relevant.
I think perhaps the Court may have mistaken or forgotten a comment that we made in the original letter, which is the letter dated April 14th, and I don't know if the Court has a copy of that available, but I can read to the Court, if the Court wishes, what we said about these photos. We submitted at the time five crime scene photos.
Let me make clear, initially we never offered 39 and 40 to show injuries to Nicole Brown Simpson on any part of her body. On page 3 of the letter--
--it reads: "In addition to depicting the position of Nicole Brown Simpson's body at the time it was discovered, these photographs establish the degree of bleeding found on the step immediately above the body, the pool of blood surrounding the body and the presence or absence of blood on portions of Nicole Brown Simpson's hands." That last phrase, your Honor, is what is the purpose behind 39 and 40. We go on to say: "These photographs are relevant to establish the sequence of wounds and in particular that the major incise wound to the neck was the last sharp force injury inflicted."
The Court will recall, from our oral argument, I believe the testimony will be from Dr. Lakshmanan, that in his opinion that major incise stab wound is in fact the last wound that was inflicted, sharp force injury, and that she was incapacitated at the time and that her hands were in contact with the pavement at the time the blood started to flow from that. And the basis for that is observing an absence of blood around the knuckles on both hands which are seen in the crime scene photos as in contact with the surface of the walkway where her body was found. And so this is a portion of the evidence that allows one to--
The basic thrust of the position from Dr. Lakshmanan with respect to this being the last sharp force injury inflicted, that this major stab incise wound is--no. 1, there is an absence of cuts around the margins of the wound, which one would expect if the victim were in a condition to struggle, as one would expect a victim would, if able, from such an injury being inflicted. No. 2, from the angulation of the wound, going left to right and in an upward direction--
And that her body, in pulling the head back to hyperextend the neck and create this exposure for the wound. The hands, at least as the time the blood started to flow from that wound, those hands were in contact in the area where they are seen in the crime scene photos at that point in time, because the blood pools around those hands and the knuckles that appear to be in contact with the surface show an absence of blood, so it is the absence of blood on those knuckles that are in contact with the surface which suggest that in fact she was down, certainly at the time the blood started to flow, and from this wound the blood will flow very forcefully and very immediately, so that is the purpose behind it. To set up again, that last wound was inflicted to show premeditation and deliberation by pulling the hair, pulling the head back, exposing the neck. She is incapacitated. She is basically on the ground and her hands are in contact, as verified by 39 and 40, showing the absence of blood around the knuckle areas, and as the hand is seen, or hands are seen in the position in which the body is found as reflected in those crime scene photos we submitted, so that was the argument. It was never an issue of these hand photographs would demonstrate wounds of any type. It was purely on the basis of the absence of blood around the knuckles in contact with the surface. That was the basis to submit these photos, because they are a part of the basis for Dr. Lakshmanan's opinion regarding the manner in which that last major stab incise wound was inflicted.
But in fact there are three neck injuries, sharp force injuries to the neck in that photograph. This is the major stab wound, complex stab wound that is most evident. There is a portion of one of the superficial incise wounds to the neck.
No. I surrendered everything back to you. The Court does not have an independent copy of these items.
It is actually the third sharp force injury which is the reason we would like the Court to clarify its order. It is that five-eighths inch stab wound. It is seen in another photograph, but its posterior end, which is of significance in establishing the type of weapon which inflicted it and a basis to measure that posterior end, is provided in this photograph and in no other photograph.
No. We are speaking of the five-eighths inch stab wound which is, as you view the photograph, to the right of what I think the Court concludes is the major stab wound in that photograph, to the neck. It is oval in shape, it might appear on the first blush look. If the Court has--I don't think the Court does have, but I can provide it--I believe it is G40 which shows that wound as well.
I think it can be noted quite clearly that the picture is not nearly as crisp of that particular sharp force injury as it is in 50. I don't know if you can crop. That is the problem. But what I will say to the Court is if the Court says crop that out, I expect that the Court will allow Dr. Lakshmanan to testify that he has reviewed all of the autopsy photographs and that he made a measurement off of one of the photographs, which is not one of the photographs that the injury will be seeing, because it is the basis and it is not I think excludable as a basis for an expert opinion, even though the Court has ruled under 352 that it should be cropped out because it is not the type of evidence, such as an unconstitutionally obtained confession, on which experts cannot rely. They can rely on what would otherwise be inadmissible hearsay or other inadmissible matter. This photograph, the Court has initially concluded as to that portion, simply is redundant. We suggest it is not redundant with respect to that one particular sharp force injury.
On the third photograph, and I have shown it previously to Mr. Shapiro, I think he would agree that we let him know about 33, umm, and that is a photograph that depicts a portion of cerebral cortex tissue from the brain of Nicole Brown Simpson. I think we have made it clear, probably in our initial papers and the autopsy reports, that Dr. Golden, in the original protocol and in the form that is provided to reflect brain injuries, indicated there were no injuries to the brain observed. I believe it is June 22nd, if memory serves me correctly, that Dr. Lakshmanan and the Defense expert, Dr. Baden, who I believe was seated in Court and may still be--
--just to my left, reviewed independently from Dr. Golden the tissue that had been preserved from autopsy. Dr. Lakshmanan observed, and I'm sure Dr. Baden did as well, that there appears to be a contusion or at least a blood--evidence of blood in the tissue of the brain that was preserved by Dr. Golden. This ultimately resulted in an addendum which included reference to that particular material along with a supplemental microscopic report detailing the findings of that. Clearly it is something that is a mistake by Dr. Golden not to have addressed or diagrammed, and it is a matter which Dr. Lakshmanan would talk about in discussing its possible relationship with the contusion to the scalp of Nicole Brown Simpson that is in one of the photographs we are going to show, I believe it is 40, if I'm not mistaken--40--of Nicole Brown Simpson. I may be mistaken on the number, but we can get it if the Court needs to see it. The issue is, was that brain contusion directly underneath the scalp contusion, as Dr. Golden's supplemental report suggests is his recollection, or--B20, I'm sorry--B20 is our number, or is it from the opposite side of the brain, in which case it may reflect a type of injury that is called a contrecoup, C-O-N-T-R-E-C-O-U-P, type injury, whereas if the brain contusion were directly underneath the scalp contusion, it would suggest, a coup type injury. And Dr. Lakshmanan can explain these things much better than I as to their significance in this matter, but it is clearly something that was not addressed and it is something that is verifiable by the photographs. I don't think that this is a particularly prejudicial photograph in any way. I don't think most people would have the foggiest idea what they would be looking at. It is certainly not gruesome in any sense of the term and its probative value I think is significantly advanced by its relationship to the scalp contusion which relates to the nature and extent of any struggle between Nicole Brown Simpson and the perpetrator of her murder. So those are the three photos. The other thing I wanted to do, to make sure there is a record in the event that there is a conviction and appeal, is to have preserved as a Court exhibit, if we could, the full set of photographs that we submitted with the designation that we were not going to be using these photographs, because the Court reviewed both the photographs we submitted that we wanted to use from the Coroner photos, as well as the other available Coroner photos which we had no intention of using, and it seems to me that any reviewing Court that wants to evaluate the Court's exercise of 352 discretion would be helped by seeing all of the photographs that were available. Clearly the ones that are being used are going to be seen as exhibits. Those which were offered and excluded by the Court we will have available to have marked as part of the Court exhibit.
And then the balance as well, so we have them here and we would like to have them marked for the purposes of that hearing in any designation the Court wishes, either as a Court exhibit or a People's exhibit, whatever the Court desires.
I think we will just call the--I have listed the--in the Court's order by indicating the designation that the People have given to it, crime scene, Nicole Brown and Ronald Goldman, so we will make the package of autopsy and crime scene photographs for this purpose Court's exhibit 13 with a sub designation as indicated by the People.
And that is what I wanted to bring to the Court's attention with respect to the photographs, so perhaps if the Court wants to hear from Defense counsel and then I would ask to be heard on several other matters.
Brief, and it may be a question of timing rather than having them resolved at this point. Do you want me to indicate what they are?
Well, one is still the unresolved issue of other alleged incidents of mistakes by Dr. Golden. As the Court will recall from our oral argument, there were two incidents, in addition to the two that we conceded were mistakes by Dr. Golden, which were raised in a television program on ABC, Primetime Live. We have advised Mr. Shapiro that our position is no mistakes were made in those two cases, and we obviously abide by the Court's ruling as to the admissibility of mistake evidence. We are not trying to relitigate the two cases that the Court ruled were admissible, but because we do not believe mistakes were made in these additional cases, that we would have to litigate the merits of those two cases--
--to evaluate whether a mistake has been made. And we would raise a 352 objection to this. There was one additional case that came to my attention through Dr. Lakshmanan, I believe on the 24th of May. Counsel has been advised with a letter of mine dated May 25th to Dr. Lakshmanan--to Dr. Lakshmanan, or a memo to file, I can't remember which one off the top of my head, but basically it involves a gentleman who was autopsied by Dr. Golden and in the course of the autopsy Dr. Golden made note that the gentleman had a thyroid gland. It appears to be the case that the gentleman had had his thyroid gland removed many years earlier, so this would appear to be a clear mistake by Dr. Golden. Again, this is a case--it is not a sharp force injury, gunshot wound case whatsoever. In fact, I believe Dr. Lakshmanan would testify that there is no significance to what the issues were in that particular autopsy on whether or not the man had a thyroid gland. But it is a mistake, we bring it to the Court's attention, we have brought it to Defense counsel's attention. My position would be on that one that it is so unrelated to what the issues are here, and basically cumulative to what will be a plethora of evidence concerning mistakes not only in this series of cases that are before the Court, but also in these additional two cases that the Court has allowed to be heard by the jury, that it would be simply cumulative, and especially on matters that are unrelated to this type of cases. So that is one of the matters that we wished to address. And I have been advised by Mr. Shapiro that he has objections to some or all of our charts, I believe primarily the time of death charts. And obviously we are willing to discuss that whenever the Court wishes.
We are not going to get into it today, I can tell the Court that quite clearly. As I understand we are going to noon. We will not get remotely close to it, I don't believe.
Good morning, your Honor. Thank you very much. Your Honor, I believe the Court has already made a ruling on the crime scene photographs. You've heard our extensive arguments on all of those issues regarding crime scene photographs and autopsy photographs. We stand by those arguments, mainly, that the autopsy photographs are so gruesome and so horrendous that their prejudicial effect outweighs any probative value, and hearing what was said this morning, I think they are irrelevant also. If counsel is arguing that injuries that are not related to the cause of death are not relevant and that mistakes made by Dr. Golden are not relevant, then we are willing to stipulate that the cause of death to Nicole Simpson and Ronald Goldman were as indicated by Dr. Lakshmanan. The People can form that stipulation and we can move on, if that is really what their intention is, but it seems clear that that is not their intention. Their intention is to demonstrate through these photographs something which they have no evidence of and that is that the photographs can show premeditation and deliberation. And of all the experts we have consulted, there is not one in the world who can conclude from photographs of injuries the state of mind of the real killer in this case. So we would first ask the Court that if the People really are trying to only bring out the actual wounds that are the cause of death, that their examination be limited to that and that anything else be irrelevant. And regarding any photographs that are used for the purpose of showing premeditation and deliberation, we would ask the Court to find that any probative value is so highly speculative at best, and is nowhere found in the literature, that they should be prohibited under 352. Regarding the charts that have been proffered, we have several comments, if the Court wishes us to address them now. I think it probably would be good to do that, because in the event that some of these are not going to be allowed or have to be changed, it would give the People time over the weekend to do that, but I will follow the Court's guidance.
Well, it would be my suggestion that we come back and confer at 1:30 this afternoon. Let's use the time for the presentation of the fundamentals to the jury. We have the doctor here. We have the jury here. Let's use the morning session for presentation to the jury. Mr. Kelberg, what exhibits are you going to use this morning with the--
As I understand it, the chart that Mr. Shapiro is concerned about are time of death charts.
Well, no, actually they go to--they begin with--there are comments on virtually every chart that has been proffered by the People, beginning with the wound characteristics and possible sources, which is another issue that we have to address before the jury hears any testimony. And that is, I've been informed that there are four knives, none of which the People claim were the knives that were used that they want to present to the doctor for examination, and we would object to any of those knives being shown as being irrelevant and being prejudicial as they are going to--as they are going to attempt to try to link these in some way to Mr. Simpson, either through ownership of a stock interest in a company that makes knives or to knives that may have been present at the murder scene, so we would object to those. And the first chart that comes up, "Wound characteristics and possible sources" is purely argumentative. In fact, I think the best argument I can make on any of these charts is to ask the Court to reread Mr. Hank Goldberg's arguments to your Honor regarding our charts which the Court sustained.
May I briefly respond? I must say, your Honor, in all of my argument on the photographs, I don't believe I ever used the word or words "Not relevant." I'm not relitigating the entire motion. Mr. Shapiro apparently wishes to relitigate the entire motion. We have offered to the Court--
Then let's go to photos don't demonstrate the state of mind? I must say, in all the California Supreme Court decisions I have ever reviewed where they talk about the basis of admissibility of autopsy photos, and the most common basis is they reflect on premeditation and deliberation, malice, intent to kill, and that is what makes them admissible. It seems to me it is not a question of whether Dr. Baden or some other expert thinks they can read the mind of the killer. The issue is are these photographs helpful to a jury in assessing what was the state of mind of O.J. Simpson when he killed these two human beings? And that is the basis on which they were offered and that is the basis on which I think the Court allowed us to use the vast majority of them. With respect to the knives, we--unless there is somebody--and you know, there are so many lawyers on our O.J. Simpson team, I don't know probably half of them, so I may not know what somebody else is doing and they probably won't know what I'm doing--
That is a big problem, but I'm down here for a limited role and I hope to keep the role very limited, and I will be in and out of here and the Court maybe won't even notice me. The issue of knives is not to show that Mr. Simpson owned any of these knives, had stock in any of the companies that manufactured them. These knives are being used to show the jury class characteristics of knives. There has been a big issue raised, I think by the Defense, as to, hey, the Coroner, Dr. Golden, said at the preliminary hearing a second knife could be involved. And in fact what he really says and what the evidence will show is that all of the wounds are consistent with a single single-edged knife, but certain of the wounds have patterns of characteristics that make it impossible to distinguish whether it is due to a single-edged knife or a double-edged knife, so you cannot exclude the possibility of a second knife. But the evidence is also going to show that there is not one sharp force injury that cannot be attributed to a single-edged knife. These knives are to show the jury things like thickness of the blade, which has some bearing on the width of the wound on the surface of the body.
These knives have different lengths which may reflect on the depth of penetration of the wound into the body. These blades have different widths which may reflect on the length of the wound on the surface of the body, and so when the issue is raised of how many knives could have inflicted these sharp force injuries, the jury has to understand class characteristics of knives, and what doctors like Dr. Lakshmanan or Dr. Baden look for in evaluating the class of knife which could be the source. I believe the testimony will show, your Honor, quite clearly, that unlike what maybe some on people believe, and perhaps based upon what people believe with respect to connecting a specific gun to a specific bullet that is found in a body, it is a very rare situation where forensic pathologists are able to identify a specific knife that is not found in the body at the time that the body is found or a single knife which at least didn't break off a part of the tip of the knife blade so that when you get a possible suspect weapon, that just happens to be missing a tip, experts can evaluate whether the missing tip and the knife with the missing tip seem to correlate to one another, but it is a rare commodity to be able to show a specific knife.
These knives are to give the jury an understanding of the differences that appear in knives, both single-edged and double-edged, show the jury how the wound patterns can either be different or appear similar, depending on what kind of knife is involved, and to see how you try and evaluate things like width of the wound, length of the wound and depth of the wound to the class characteristics of knives involving thickness of the blade, width of the blade, length of the blade. And that is what these four are offered for, no other reason, and no suggestion whatsoever would be made by me, and I believe by anybody else on our team, to the jury, that Mr. Simpson is responsible, because the evidence may well show that not one of these knives fits all the class characteristics that Dr. Lakshmanan may believe are necessary for a single single-edged could have created all of these wounds. That is the rationale behind it. One other thought came to mind that I failed to mention to the Court with respect to some of these photos. Some of those photos have been cropped at what I would call unusual angles. I think it would be very important that the jury know we haven't played fast and loose with the photographs. Dr. Lakshmanan obviously doesn't review photographs that are cropped in that fashion. I would ask the Court to inform the jury that the photographs that may appear to be cropped have been cropped under order of the Court and the jury is to draw no speculation from the fact that a photograph is cropped.
Your Honor, I think first that we would point out that we believe it is highly improper for any lawyer to suggest to your Honor in argument that the motivation between--behind O.J. Simpson killing these people is shown in these photographs. That is an opinion of counsel. That is what the jury is here to decide. It is improper and we believe it has no place by any professional in addressing the Court. And we would ask the Court to properly instruct counsel to refrain from such inflammatory comments. Regarding the knives, Dr. Lakshmanan filed a report, and I can get the report for you, which indicates that in his evaluation of the four knives they are inconsistent with all of the wounds on both of the people, so these knives are totally irrelevant. All it does is again inflame the passions of the jury by bringing out large weapons to demonstrate what is obvious. Knives come in different shapes and forms, and if this jury doesn't understand that, then I think they are going to have a much more difficult time understanding some of the scientific concepts that we have had. That is just basic common knowledge that knives are in different shapes, different strengths, different degrees of sharpness, and picking four knives at random does nothing in this case, especially when Dr. Lakshmanan has eliminated those knives that were presented to see if they could be the knives that resulted in these injuries. Therefore they are irrelevant and should not be introduced whatsoever.
Mr. Shapiro made a mistake. I'm not going to respond to his comment to me personally. I don't take them personally and I understand why he makes the remarks that he makes. But these are not the same four knives. We in fact withdrew the knife which is a knife of a similar nature to a knife which at the preliminary hearing there was evidence that Mr. Simpson had purchased from a knife store. We took this knife out because we didn't want anyone to suggest that we were trying to use that knife in a subliminal fashion to suggest that that knife was the murder weapon. These knives--first of all, to clarify the record, Dr. Lakshmanan did find two of the knives to be consistent with the kind of knife which could cause all of the wounds, because one may take in together the elasticity of the skin, and since we had no human volunteers for the necessary stabbing experiments, hog skin was used, and it is on the basis of that factor, along with others--the hogs I don't believe volunteered either, but they had limited choice apparently in the matter--that the experiments that were done indicated that two of the knives were consistent, but the four knives we have here are not the four knives that were used in the experiment. These are just to show class characteristics. And I would suggest to the Court that a juror does not have such a complete understanding of class characteristics of knives and characteristics of sharp force injuries to the body that these knives are irrelevant. In fact, they are very relevant to give the jury an understanding of the connection between those class characteristics and the shapes of wounds on the body. I'll submit the matter, your Honor.
Thank you, counsel. All right. As to the photographs C40 and C39, now that the explanation or the argument regarding the relevance has been made clear to the Court, the lack of blood on certain portions of the hands of this victim are relevant to the manner in which death--excuse me--the manner which the body was at the time the fatal wound or large fatal wound was inflicted. And I will overrule an objection as to that, although it is not a pleasant photograph. As to the Court's direction, the cropping of G50, I will direct the cropping to take place to eliminate the large neck wound, but the others are--will remain.
May remain. And as to B33, the photograph of brain tissue, it does have significant probative value. It is a photograph that does not have any inflammatory impact and has to be explained what it is, so I will overrule the objection, since I think the probative value, what I can see here, the obvious--what appears to be obvious discoloration of one part of the tissue, assuming that expert testimony will indicate that that is indicia of injury rather than natural condition, I will allow the photograph. As to the four knives, on the--on the representation of counsel that these are to demonstrate class characteristics only, as to the type of knife, I will overrule the objection at this time, but I would like to see them first before they are presented to the jury. All right.
We would, without changing our position, since certain photographs now are going to be admitted, ask that photograph G35 be admitted, based on the fact that it relates to types of knife wounds.
All right. All right. And counsel, one other matter. The court reporters are not available to me this afternoon at 1:30, so what we will take, is take the time to sit and look at these informally and take the time to put the findings on the record on Monday at 8:30.
We would probably get into, quite early in our examination of Dr. Lakshmanan, the sharp force injury wound charts to show these characteristics. I don't know when the Court takes a break, but basically we have Dr. Lakshmanan's curriculum vitae, we have some photographs that will show how the bodies were handled in the course of their arrival at the Coroner's office through the course of the time when they were autopsied and subsequently released. I don't know if that is going to take much more than maybe a half an hour or so, at which time I would anticipate getting into a discussion in general terms of sharp force injuries.
Your Honor, it might be easier, it would take probably about five minutes for me to go through our objections--
Regarding--let me just refer to them as page 1. Page 1, there is no objection. Page--
Page 2, "Wound characteristics and possible sources," we would suggest that this is all argumentative, especially no. 2: "Although from a single-edged knife blade the wound appears to be from a double-edged knife blade because of the thickness of the blade at depth of penetration is very narrow." That clearly is an argumentative statement, as are other matters on that. Regarding chart 3, the "Correlation between wound dimensions," we would submit that. Regarding the "Terminology describing injuries," we have no objection. Regarding the "Anatomical terms," we have no objection except that they are grammatically incorrect. "Anterior" as they define "Towards the front of the body" is really anteriorly, as are all the other words. It is a grammatical error. If the Court wishes to have the People corrected, we would suggest that would be proper. On "Factors commonly used to estimate the range for time of death" under "Livor mortis" we would respectfully suggest the definition is incorrect, that their definition f the draining of blood is incorrect. Draining medically implies that it go from the front to the back, and blood does not go from the front to the back. Rather, livor mortis, is the settling of blood. And so we would object that that is blatantly an incorrect statement. On algor mortis regarding temperature, we believe that under B2 where they say--
B2, 3B(2), the next chart. Do you have that? That normal temperature may vary from 93.6 degrees Fahrenheit. There is nothing in the literature that says that normal temperature is 93.6 degrees. That is incorrect. The next chart, the "Relationship between post mortem interval and body cooling" would need much further foundation before that can be admitted.
The next one, "Limitations," again they point out that on this diagram they use the temperature of 93.6 as being within the normal range of body temperatures for human beings. We would submit that is medically incorrect. On algor mortis on the next page, D1, when they talk about Dr. Lakshmanan: "Temperature plateau means the actual core temperature at the time of death may remain at that constant value for some variable length of time due to the body's production of heat from the residual metabolic process of dying tissue and the metabolic activity of intestinal bacteria," that is argumentative and it is scientifically untrue and there is no scientific evidence for that. On the next chart of algor mortis continued, on 4C sub paragraph double I: "The loss of body temperature due to post mortem cooling from the actual core temperature at the time of death in which case one cannot determine with certainty how long the body temperature remained on the plateau or how much temperature loss has occurred from the actual core temperature at the time of death since one cannot know what that temperature was," is argumentative. One may be able to know that, depending on how quickly the temperature was taken. Continuing on the next page, d sub I, 1 and 2, again those are both argumentative with the same arguments I have just given you. An example is that normally body temperature would not increase after time of death; however, it could increase if the body was perhaps found in the desert where the ambient temperature exceeded 110 degrees. The next statement on algor mortis, whether there is a plateau stage, and they list ten things, no. 1, the majority of those that are listed are irrelevant to this case and do not relate to any factors in this case and they are also argumentative. And then finally, the conclusion is hearsay, is argumentative and it takes one section, one sentence out of a lengthy, lengthy treatise that is only argumentative and based on prior Court rulings may not even be admissible. Under "Rigor Mortis," the "Survey of the literature concerning the period before rigor mortis is detectable" listing several different time periods, but without giving references are self-serving and are not documented.
We have the references at the end, but they don't show any direction as to where those references are. It was just pointed out that there is at the end of this, the references of texts that were used to come to these things, but just to pull sections out of textbooks and put up the sections that they believe advance their cause, is not proper procedure and is argumentative and is admitting hearsay evidence that the Court on numerous occasions has prohibited the Defense from doing when we attempted to bring out sections of non-texts. The same thing for "Rigor mortis," paragraph 4 of the "Times between the persistence and disappearance of rigor mortis" is all argumentative and the conclusion again is one sentence taken out of context. That is purely conclusionary. On "Livor mortis" again when they start out, I don't know were they got this from, but regarding the draining of blood into the vessels, that is not correct, it should be settling, just scientifically wrong. We could say the same for chart 2, however, we have no objection to that chart.
The "Conclusions on livor mortis," we have no objection to, the conclusions by Dr. Knight. We do object to the conclusions by Dr. Claus Henssge, since this text was written after this case and could not possibly have been relied upon at the time of the autopsy. The "Vitreous humor potassium level," that refers to simply the eye fluids, we have no objection to. And in the conclusions of "Gastric stomach contents," we would have no objection to that.
I almost don't know where to begin, but I have a few ideas. Perhaps if I could start with the "Time of death" and work backwards initially. I seem to recall, and I confess I have not been following this case with the earnest of the American populous and perhaps people all over the world, but I have heard cross-examination by Mr. Cochran of I think it was Detective Lange asking if he read certain things, did he agree with certain things. And of course the Court is well aware under 801.b, experts are allowed to rely on what is otherwise inadmissible hearsay. None of this is going to be offered for the truth of the matter asserted, but I can indicate to the Court quite clearly that Dr. Lakshmanan has read this material, has relied upon this material, and has formed opinions based upon this material, because what the evidence will show is if Dr. Lakshmanan had been at the body at 12:13 when Officer Riske found the body and applied all of the knowledge that forensic pathologists have to assess an estimated range for time of death, he would not be able to differentiate between 10:15 and eleven o'clock, which is the window frame that everybody seems to be talking about in this case, because it is not a precise science. Now, Mr. Shapiro said there is no literature on these things. Well, there is a book that has come out by some of the most preeminent researches on time of death--I'm sure Dr. Baden has a copy of it, I'm sure he has read it, and if he hasn't I will bet he will read it before he comes in to testify--"The estimation of the time since death in the early postmortem period." People like Henssge with his nomogram and Knight, one of the preeminent forensic pathologists from England who has a textbook, "Knight on forensic pathology" and is also the editor of "Simpson's forensic medicine," another English forensic pathology text. These are big names in the field, your Honor. These are not lightweights. So, for example, when Mr. Shapiro says there is nothing in the literature regarding the range for core body temperature of normal people, healthy people, page 10 of this book under Mr. Nokes' chapter on "Body temperature at the time of death," very beginning: "It is very difficult to specify a, quote, `normal,' unquote, body temperature as its value can vary considerably between individuals. Rectal temperatures in a group of healthy subjects can vary between 34.2 and 37.6 degrees Celsius with a mean of 36.9 degrees Celsius." We have computed both the Fahrenheit and the Celsius measures on the chart. That is exactly where this is from. The that is the basis on which Dr. Lakshmanan relies. And if Mr. Shapiro says there is nothing in the literature, then all I can assume is Mr. Shapiro hasn't read this book. I have read it. It is not light reading, and there is a lot of it I don't understand, but it is not tough to understand that paragraph.
And much of the information in here, and in fact Dr. Knight in the introduction makes it clear that some of the sections are intended for people who are not going to be mathematically oriented and have to delve through the double expediential formulas and various higher levels of mathematical computation involved, but the other parts of the book are for forensic pathologists who practice, lawyers, police officers, in helping them to understand how one goes about estimating range for time of death. Now, Mr. Shapiro also said there is nothing regarding how the body can maintain its core temperature at time of death based upon what our chart says. I refer the Court to a book I referenced once earlier when I appeared on this case, "Spitz and Fisher's medicolegal investigation of death," third edition, edited by Werner U. Spitz who is a preeminent forensic pathologist in the United States, I believe retired from Detroit. On page 22 of the chapter dealing with time of death and changes after death, second paragraph right-hand column: "The initial plateau which rarely lasts more than three to four hours is generally explained on the basis of heat generated by the residual metabolic process of dying tissues and by the metabolic activity of intestinal bacteria." I think it is pretty obvious, your Honor, I couldn't have made this up, we had to have something in the literature to support this, and this is one of the well-recognized forensic texts. Now, I will also indicate to the Court there is no "Dr. Baden on forensic pathology." Dr. Baden may be well-known, but Dr. Baden is not the editor or the contributor in recent years to any recognized preeminent forensic pathology text, and I am assuming he has reviewed this material and he may want to come in and say they don't know what they are talking about and then we can cross-examine Dr. Baden to see if he knows what he is talking about, see what experiment he has done, what research he has done, what views he has that are supported by the literature. But all of these charts are based upon findings from the literature, read by, relied upon, considered by Dr. Lakshmanan in forming his opinions. There is nothing argumentative at all about what these charts lay out, and I must say, I was somewhat dumb struck by Mr. Shapiro's indication that you can't use Henssge's book because it came out after June 12, 1994. That one can't use that book to tell this jury that all the hoopla about lost stomach contents, which isn't even mentioned in Henssge's book as a factor to be used for evaluating time of death, that in fact tells this jury that you cannot be precise and that you talk in terms of ranges which based upon the forensic pathology information makes it a range of perhaps 9:00 P.M. to 12:00 midnight to cover the range for time of death of these two human beings. And that is what this chart is intended to show. It is a complex process that is not precise and we are trying to give the jury a true understanding of the limitations and the probative purposes of the process. Now, again Mr. Shapiro talked about lividity. He doesn't like the word "Draining," he likes the word "Settling." He didn't mention that the chart says draining into the dependent parts of the body. We never said it drains from the top to the bottom. It depends on the position of the body at time of death and if it is rotated over, as the evidence will show. So all of this is factual, all of this is based on the literature, all of this has been relied upon by Dr. Lakshmanan and he will so indicate. And given, as I understand the Court's understanding of 801.B, 721, that that is a basis on which he may testify to the materials he has relied upon in forming his opinion and that is what these charts represent. Now, with respect to the--Mr. Lynch points out that it is interesting of course that Mr. Shapiro objects to some but not all of the comments. I guess he likes some of the comments and doesn't like others, but the jury should take all of the comments together, because it is a gestalt process of looking through a lot of different factors, starting with temperature and getting to rigor and livor and the vitreous humor potassium level and so forth. And I don't know if the jury is going to be bored or they are going to be excited by this information, but one way or the other I believe they have to have an understanding of this information to evaluate what is a contention by the Defense that there were just horrendous mistakes made by the police in not calling the Coroner out earlier. I mean that has been, as I understand the limited portions of this trial I have heard or reviewed, a major contention. Oh, lord, they didn't call them out until six o'clock and then they didn't get out there until eight 8:00 and they didn't put the probes in until 10:40 and 10:50. Well if the evidence is going to show if the probe had been stuck in the liver of Nicole Brown Simpson and the probe had been stuck in the liver of Ron Goldman at 12:13 A.M. on June 13th, you wouldn't be any better able to differentiate 10:15 from eleven o'clock than you would be when ms. Ratcliffe did the performance of the livor temperature reading at 10:40 and 10:50 in the morning.
I'm sorry, you're right, your Honor. I'm flipping through the--that's why the anterior and anteriorly is my mistake. I was never good on adverbs and adjectives. I'm trying to think of some of the other objections. I think I have basically given the Court the flavor of what this is all about, and if the Court has any question about any entry in here, as to where it comes from and so forth, I will be more than happy to get the literature out to show the Court. But I can clearly indicate to the Court that what this is intended to do, for example, the sharp force injury charts, is to show the jury how different weapons can create single-edged double-edged, can create similar appearing wounds, and that is why when we hear from the actual wounds that were found on the body of Nicole Brown Simpson and Ronald Goldman, that some of the wounds are consistent with either a single-edge or a double-edge, this jury will be able to see what it is from the knife that leaves the characteristics that are looked at from the wound that Dr. Lakshmanan or other forensic pathologists would use to form an opinion as to the class of weapon that may have inflicted the wound. I do not believe they are argumentative at all. They are factual. And that is what we have intended to do. I wasn't here for Mr. Goldberg's argument. I'm in the dark on Mr. Goldberg's argument. I like Mr. Goldberg. I have a lot of respect for Mr. Goldberg, but not even knowing his argument, I don't feel I should be saddled with his argument. I am here to make the argument as I understand the law to be and ask the Court to rule on its understanding of the law, irrespective of what Mr. Goldberg may or may not have said. On that basis, your Honor, I will submit the matter.
Thank you. Your Honor, regarding the issue as to when the Coroner should come out and begin their process and their examination, it is not something that we have dreamt up. State law requires that the Coroner immediately come to the crime scene and those are things that we are going to bring out before the jury if the Court allows us to bring out the legal sections involved. Regarding the position of the people in this case, it seems clear from the statements of counsel that these charts indeed are all argument, they are all positions that he would like to advance to the jury, and because they are argumentative, they are not properly used as visual aids to help an expert witness in communicating to the jury. Rather, it is an outline of their closing argument and may be proper at that time, but certainly based on all the prior Court rulings are improper at this time. Thank you.
All right. As to the "Wound characteristics and possible source" chart, which is page 2, the objection will be overruled. It is something that can be used by an expert witness to explain his or her testimony. I do not find it to be argumentative or improper. As to the "Factors commonly used to estimate range of time for death," the objection being the terminology "Draining of blood," however, the explanation given as by the action of gravity, I don't think that there is any misunderstanding that will be conveyed to the jury since the common sense notion of draining is that something by operation of gravity goes from a higher level to a lower level. So I don't see a danger here of misleading the jury. I don't find this to be argumentative or misleading. As to the "Algor mortis" chart, based upon the offer by Mr. Kelberg that there is substantiation in the literature regarding the range of core body temperature, the objection is overruled pending a foundation that that in fact exists. Also, "Algor mortis" subsection (C), subsection (2), I don't find that to be an inaccurate statement. The objection will be overruled. The objection as to "Algor mortis" no. 4, "Conclusion," I'm going to ask you to strike the "4" and "Conclusion," since that is argument.
On no. 5, "Rigor mortis," strike the "Conclusion." The box may remain, since that is a direct quote. All right. All right. We will take ten minutes to get the jury down from the lounge and then we will start with the jury. All right. We will take ten.
The issue is are these photographs helpful to a jury in assessing what was the state of mind of O.J. Simpson when he killed these two human beings?
We would first ask the Court that if the People really are trying to only bring out the actual wounds that are the cause of death, that their examination be limited to that and that anything else be irrelevant.
The hogs I don't believe volunteered either, but they had limited choice apparently in the matter.
That is a big problem, isn't it?
It is an outline of their closing argument and may be proper at that time, but certainly based on all the prior Court rulings are improper at this time.