All right. Back on the record. All right. Good afternoon again, counsel. Mr. Bailey, have you had the opportunity to look at some of the materials?
We have looked at all of the materials that were just exhibited to us, and we have conferred among ourselves. It is unfortunate at this stage of the trial that the Prosecution has seen fit to commit a deliberate discovery violation of the worse kind. The elimination photos were created in December 1994. Those photos were created--
Bluish black fiber. At 2:45, we were handed these photos. I thought your rule on turning over photos was crystal clear a long time ago. Certainly there is no excuse for this. Dr. Morton and I have probably put in hundreds of hours on this one issue. We're totally disabled to examine any of these materials, have the ability to challenge them, and this was a deliberate surprise to cause that result at a stage in the trial where continuance is no remedy because that's punishing this jury which has been punished enough. There is only one remedy for these violations, your Honor, and that is preclusion. It would be totally unfair to stop this trial long enough to permit us to go through each one of these photos. Dr. Morton has seen the original, but he's had no basis to compare and see whether they're taken out of context, whether this is a piece of advocacy or a fair presentation. As to that photo in particular, it can never be anything else. The sources of blue fiber in California or the United States are infinite, and we will need to prove up and be able to cross-examine all the possible sources, particularly from the environment where these were taken, and that's going to take some time, and we could have done it had we been given any kind of decent notice. As far as the photos of the Bronco from various years, that was sprung on us today. Now, we've been checking carpet all over the United States very dutifully in order to be able to represent this Defendant in a responsible way, and at no time have we ever run across a notion that there is a periodic change. Had we been warned of that, we could have checked it out and either said, "Yes, that's correct. We won't take the Court's time up with a meaningless challenge," or been able to cross-examine on the point as to when the changes were made, how many million yards of each fabric were created, what cars they were installed in, what houses, et cetera, et cetera. The last matter that I would like to take up, and it's one that is very disturbing and we've been waiting for it to erupt, the FBI book on hairs and fibers says very clearly that the most that can ever be said is that a hair or a fiber is similar to or cannot be eliminated from a same source, but can never be identified--
Consistent with is permissible. Match is never permissible and is a highly dangerous word because a lay jury looking at photos of hairs of ostensibly the same color with some similar characteristics may get the impression, if the wrong language is used, that this is an identification of a Defendant when it's a far cry. There is not, your Honor, even a database from which one could come up with frequencies as is attempted to be done in DNA. No one knows how many people have hair that is indistinguishable from that on the hat or from that of the Defendant. And for any hint to be given that this even comes close to identification of the Defendant's hair would be a ground for mistrial, and I would ask, your Honor, if that happens, you strike all the testimony on hairs because the parties are forewarned. I do not expect there's been any change in FBI policy about the value of this evidence since this was published in 1977. If there is, none of us has heard about it nor did any of the literature go any further than this, and the use of the word "Match" or "The same as" or any similar articulation is simply deadly.
Yes. I know, your Honor, but I heard the word in Court today. That's why I'm hoping you enforce the word very strenuously. What we don't need at this point is a mistrial. Even if the Defendant could not be tried again, to prevent him from putting on his very strong case before this jury, this Court and this country, after suffering all these months would be a greater injustice than if he was struck dead right this moment.
All right. Mr. Bailey, so I understand the nature of your objections, since obviously I'm not privy to this information either, you're objecting to the bluish black cotton photographs.
The hair elimination photos of the police officers and others who were on the scene. Those could have been given to us last December or no later than January. There's one final objection, your Honor, which I noted during the recess. You note that the chart on the dog hair comparisons compares three of Kato's hairs to the two gloves and suggests that Kato's hairs or hair similar to Kato, consistent with, were found on both gloves. The last column suggests that a hair similar to Chachi was found on the Bundy glove. Now, that could be taken as having some significance if certain inferences were drawn. However, after that comparison was made and after the witness came to his conclusion that they were similar, he discovered by accident that there were many, many dog hairs in on Goldman's home, that they were similar to Chachi's and those have not been mounted to give the jury an opportunity to look at that comparison, because if Ron Goldman had dog hairs on his clothing and they dragged Ron Goldman's body out and it touched the glove, that would certainly explain the presence of a dark hair, not Kato's. Obviously, Kato's hairs being on both gloves is not of very significance, but the Chachi's one is. Now, we're reading from Mr. Deedrick's notes about his after discovery and about his comparison and about his statement that they're similar, and the failure to mount those should preclude that last column from coming before the jury.
Yes, your Honor. Counsel's hyperbole notwithstanding, the photographs of which he complains concerning discovery were photographs taken for the sole purpose of creating an exhibit in court. The evidence itself was turned over to counsel long ago and on many occasions.
Correct. As well as the photographs--as well as the blue black cotton fiber photographs. All of the evidence has been--has been given access to the Defense on multiple occasions. With respect to the photographs of everything with the exception of the elimination standards board and the blue black cotton fibers, those photographs were given over to Mr. Scholberg on September 27th. We received a phone call from Mr. Scholberg some minutes ago in which he informed us that no one from the Defense team has called them--called him today contrary to their representations to this Court just a half an hour ago or so. He was sitting at home and his phone has not rung. He is still at home and available for conversation. He is in possession of the photographs, with the exception of which I've already noted to the Court. Nevertheless, the photographs are not the evidence. The photographs are simply taken for the purpose of preparing exhibits in court. It is the Court's order and my understanding that exhibits are to be shown to the Defense the day before. We anticipated that cross of Susan Brockbank would take longer than it did and we anticipated showing the Defense all of the boards in their completed form at the close of business today with the idea that none of them would even begin to be used until tomorrow. The reason for that is that the boards had to be modified and changes needed to be made and then labeling before they were complete. I wanted to be able to show the boards to Defense in the manner in which we intended to present them in Court so that any objections that we drew would be based on what we're actually intending to use as opposed to anything that still needed to be modified. So the boards were not even completed until this afternoon. So with respect to the--these exhibits--and it is a complaint I understand from the Defense about the exhibits--we will agree not to use the blue black cotton fiber board until tomorrow and we will agree not to use the elimination standards board until tomorrow. And I think that that would bring us into compliance with the Court's order. There was no willful desire to withhold this from Defense. We didn't have it to present to them. It was only an exhibit. It's not evidence in and of itself. And so until the exhibit is prepared, we have nothing to show. With respect to the complaint counsel raises concerning the significance of the match between the blue black cotton fibers found on various items of evidence, that sounds like fertile ground for cross-examination, but it does not sound like an objection that is legally sustainable in terms of preclusion of any of the evidence. And with respect--and I believe we will lay the foundation for that with Mr. Deedrick. He will indicate to the Court why it is appropriate to declare a match between those questioned fibers in his experience and judgment.
I have and we have used the term "Match." I have not specifically asked about that term because I did not think that it would be objectionable because it's never going to be indicated to the jury that there's a match without also saying that he cannot rule out other hair type--other possible sources that have the same characteristics as the questioned hair or the exemplar hair as the case may be. There will be no time in which Mr. Deedrick will state a conclusion without that qualification. So there's not going to be any misleading to the jury, and the Court is well aware that it is not my practice to put an expert on the witness stand or any witness on the witness stand to say something that is not forensically or legally defensible or appropriate, and I have never given counsel any reason to believe that I'm going to ask Mr. Deedrick to make a conclusion concerning identity on the hairs or the fibers.
All right. Well, let's start from the top then. With regards to these photographs that I have here to my left, the bluish black cotton fiber associations, with regard to these eight photographs, when were they--when did they come into possession of the Prosecution?
We never got the photographs, your Honor. Mr. Deedrick prepared the board for us. You know what I mean? We weren't furnished with a stack of photographs. He brought a board in with him that we just completed the labeling on this afternoon.
When were these--when did Mr. Deedrick conduct this analysis with regards to the blue black cotton fiber? Ballpark.
All right. And is this information in the--in his report that was given to the Defense?
Oh, yes. As was the evidence itself given to the Defense. I mean, the Defense has had the fibers as well as his reports and notes concerning all of the items that we're going to present.
No. Again, the photographs, however, your Honor, are not taken for any purpose analytically speaking. They're not taken for the purpose of assisting Mr. Deedrick in his examinations or in forming any conclusions. The photographs are taken solely to illustrate to the jury what it was he saw. It's solely a demonstrative exhibit. That's its only purpose.
I mean--the boards that I was aware of were the boards containing the Defendant's known hair samples compared to the questioned hair samples.
Well, the board was brought into us--the first time I saw it was last week and it was not labeled appropriately. I asked that it be relabeled so that it would be more precise as to the source of everything, and that was completed today. And I thought I understood the Court's order concerning exhibits to be that it was to be presented to the Defense the day before presentation in court. Have I misinterpreted the Court's ruling concerning exhibits?
Well, it's photographs of the evidence. But it's--the photo--you know, the point here is, your Honor, the photographs--the witness does not compare photographs. The witness compares the fibers themselves. The photographs are only taken for the purpose of showing something to the jury for explanation and demonstrative purposes, for teaching. I really don't understand the problem here. You know, the Defense has had the--
No. Counsel, the problem is this. You have a picture of a fiber from the Rockingham glove. You have a picture of a fiber from Mr. Goldman's shirt. You have two fibers that are similar that are found on Mr. Simpson's socks. I mean, obviously--and you've got a picture of Mr. Simpson on the evening in question wearing what appears to be dark blue or black clothing. And I suspect that you're going to argue from that that given the nature of the struggle between Mr. Goldman and the alleged assailant and given the type of clothing that Mr. Simpson was wearing, you're going to argue--and given the fact that it's on the socks and it's on Mr. Goldman's shirt and it's on the right-hand glove, you're going to argue that this is fiber from the clothing of the assailant.
And doesn't this--don't these photographs demonstrate the similarity of the blue black fiber?
Well, yes. And the Court has used the operative word "Demonstrate" because I could make that argument to the jury with the witness' testimony, which the Court would not preclude because discovery of the conclusion reached by the witness concerning his examination of the evidence was timely furnished to the Defense as were the fibers themselves timely furnished to the Defense not once, but four, five times. So now, the only thing we're talking about is the fact that the witness has prepared an exhibit for the jury to graphically demonstrate what his testimony is going to give and which the Defense has known about for months.
All right. My question is, when were these photographs provided by the FBI to the Prosecution?
The photographs were mounted on a board by the FBI and the board was brought in--I last saw it last week, your Honor, in an incomplete form.
The charts weren't sent until probably April maybe, April or May, I believe all the charts that were prepared from the photographs. The last charts came in probably right around the first of June I believe.
All right. How about the Bronco changes? Can I see that again, please? Mr. Fairtlough.
Now, again, these are not the photographs of the Defendant's Bronco carpet. These are simply illustrative photographs of carpet fibers from the years `92 to `94?
All right. The last thing is the objection regarding the fact that the noninclusion of another Chachi hair? Is that what the problem is?
No, your Honor. Hairs from Goldman's home that look similar to Chachi's--to Mr. Deedrick according to his notes.
That will be the subject of expert testimony, your Honor. It certainly--since counsel is well-aware of the facts of the examinations conducted by Mr. Deedrick, it's subject to cross-examination. Mr. Deedrick has certain conclusions that he's drawn from what he has seen. The existence of other similar dog hairs that I believe--well, I don't know what Mr. Deedrick would say concerning that. I had not determined whether I would even ask Mr. Deedrick about the comparison of the Chachi hairs. I have shown all of the boards that we have without the intention necessarily of introducing all of them before the jury. The reason that--
All right. Let me ask you a factual question. The representations from Goldman, was this from Mr. Goldman's apartment or from the Goldman residence in--
Let me also indicate this to the Court. I had no--I did not know what boards had been sent in because I'm in one place, they came into another. But it wouldn't have matter had I known because I needed to interview Mr. Deedrick and see what, if any, boards I wanted to use, and those interviews did not begin until--I mean, I spoke to him a long time ago in general about all of our evidence in this case, but that was before he even had taken a lot of these photographs. When we really sat down to prepare for his testimony, it was last week and a little bit the week before. And it was only last week, after having gone through what he would testify to, that I began to look at the boards to see what, if any, of them that he prepared that we wanted to use. At this point, I've been over-inclusive and shown everything with the idea in mind that not necessarily all of it would be used. But I didn't want to take any chances knowing that, you know, we have to produce these boards a day in advance.
Well, what I--I can't remember. I had seriously considered not using the dog hair comparisons board. I hadn't even made a final determination as to whether or not I would ask Mr. Deedrick about the Chachi hairs.
But I'm more concerned about the fact that this blue black cotton fiber--I mean, I can see the demonstrative purpose for this. It's pretty clear. To say that the photograph is not evidence is not a credible argument. The fact that these photographs were taken in the end of `94 and that they were delivered to the Prosecution sometime in April or May, that would trigger the obligation to turn copies of those photographs over if the People intend on using evidence of blue black cotton fibers.
As to the hair elimination, the fact that these photographs were taken in December of `94 and transmitted to the Prosecution in April or May, and if there's a reason--I mean, if they're evidence in this case, they should have been turned over to the Defense.
But, your Honor, I--you know, there's a real distinction to be made here. The witness made an examination and a comparison, and his conclusions and all of his examinations and notes were turned over to Defense in a timely fashion. That's the evidence. The fact that he took photographs--
The photographs are an assistance. They're a demonstrative tool as the Defense has been using them and springing them on us at the last minute as well. And we've had--we've had numerous occasions to object to the Defense withholding their demonstrative exhibits until the very last minute. But we were not attempting to do that in this case. I didn't even know what I was going to use until a few days ago and I didn't know what final form it would take until all the corrections were made, and I did not intend to have to use them, even think about using them until tomorrow because the cross-examination did not take as long as I thought it would.
All right. I'm not as concerned about the one-day rule as far as turning over exhibits. But I am concerned about the failure to turn over photographs. They're clearly evidence. I don't care what you call them. All right. Any other comment? Mr. Bailey.
Three points, your Honor. First, Mr. Neufeld did place a call to Mr. Scholberg, dialed his number, got no answer.
I'm sure you're not terribly concerned about that, but I want the record to be straight. Number two, to exacerbate this situation, more than a month ago, I went to Miss Clark and said, "For my purpose, I would like to shorten down wherever possible the presentation of expert evidence, and I know there's a lot of it. Could we get together and go over what it is you want to present?" She put that on the record. I was watching her on television when she told you, said we were going to do that. So this all could have been avoided. Furthermore, these pictures that were handed to us at 2:45 aren't worth much without the labels. If we can't see the board speaking to the jury, we don't know what the board's going to say. And they certainly could have given us fair warning about this and given us an opportunity to answer it on Mr. Deedrick's cross. And we don't have that opportunity now, and preclusion is the only fair remedy. Their suggestion that these are not evidence flies in the face of the evidence code. They are evidence because if you're not going to admit them as evidence, the jury should never see them. And the suggestion that because we saw the fibers through a microscope, we're not harmed by these photos popping up is specious. That's like saying because you visited the crime scene, you're not entitled to see the photos of the crime scene we intend to put in evidence. Your Honor would never buy that and yet it's the same story. Thank you.
You know--Mr. Bailey raises the very point I'm trying to make. They have seen the fibers themselves. They have seen the notes and conclusions of the witness. They could take their own photographs as well. Nothing has been precluded them at all. The only thing that we have done is to graphically depict what they already know to be the case in terms of the witness' testimony and his conclusions. They're not taken by surprise. But in no way are they surprised by the fact that Mr. Deedrick has made the conclusions that are depicted on this board, and that's really the bottom line. There is not surprise. Now they can see the photographs, all right. They can see the photographs, but they know what the conclusions are. And Mr. Bailey and I spoke about shortening down the testimony, and that concerned Denise Lewis and Susan Brockbank. I told him what I was going to elicit from Mr. Deedrick, and that has not changed. I have not misrepresented to him what he would be testifying to. I was not aware of all the boards that were possible to be used at the time we spoke. As soon as they were corrected and ready to be shown to the Defense, they are shown. The Defense has ample time now and to the conclusion of business today and even into tomorrow to examine the photographs and get advice from their experts as to how to handle them on cross-examination, because the bottom line for cross-examination is not the photographs, your Honor. The cross-examination will go to the substance of the testimony and the weight and power and force to be given those conclusions concerning questioned fibers that have no known standard to be compared to, and the photographs aren't going to change that cross-examination at all. And that's the bottom line. That's why what you're doing is simply preventing the jury from understanding better what the witness is talking about. That's what the Court is basically going to do if it precludes the use of the photographs. But it will not--but in allowing the use of the photograph, it won't change counsel's cross-examination. His cross-examination has to remain the same because the conclusions were known to him. The ground--the groundwork is laid for what the cross has to be. The existence or nonexistence of photographs does not change that cross-examination in any way, shape or form. And that's what matters in terms of the right to be prepared.
All right. Thank you. Well, there's an old Chinese saying that a picture is worth a thousand words. There's no other reason to present these photographs other than to use it as clearly evidence of the fiber evidence that we have here and the other comparisons, and to argue it's not evidence is a specious argument. All right. The objection to the--first objection was to the atlas--first two objections were to the atlas photos regarding various types of fibers. Those objections will be overruled. Those are general demonstrative exhibits, and I think counsel is well-prepared to deal with those. As to the dog hair fiber--excuse me--the dog hair comparison board, I think the fact that the chart does not include dog hairs that were later found at Mr. Goldman's apartment and that those dog hairs at Mr. Goldman's apartment are comparable to those from the dog Chachi, I don't think that's an objection to preclude the use since the Prosecution uses it without that information at their peril since the obvious argument will be that by not including it, they're attempting to hide something or not providing a complete picture. As to the Bronco comparison, the--they appear to be electron microscope pictures of those fibers, I will overrule the objection to their use. However, the Prosecution may not use those until the Defense has had time to conduct any additional investigation that they need to conduct.
It appears to the Court that an obvious area of inquiry would be to the Ford Motor Company to ask them about the types of fibers that are installed in the broncos and whether or not that changes over time, whether or not there's any uniqueness to the source. Since these photographs were made available to the Prosecution only last week and because this information was available to either side, anybody could have picked up the phone and called Dearborne and gotten this information. I don't find a violation there. I am much more troubled, however, by the hair elimination photos and the blue black cotton--blue black cotton fiber photos. I have to take into consideration the fact that the Defense did have in its possession Mr. Deedrick's reports regarding the comparisons and in fact had access to the samples themselves. However, the photographs are an important part of that analysis. And what I will do is, since the Defense has their counsel here, has their expert here, has the photographs with their markings here, I'm going to recess this matter until tomorrow morning at 9:00 o'clock. I'm going to direct the Prosecution to make all of these exhibits available to the Defense overnight. They can examine those.
If that is still not adequate time to prepare and to compare the reports with those fibers, then I'll consider other sanctions, as I would like to finish this case sometime this lifetime.
Your Honor, I would certainly object to Mr. Deedrick testifying that the Ford Motor Company told him something. I think that's inadmissible hearsay.
I understand. But I would suggest in order to expedite matters that Mr. Deedrick make known to us who his sources were so we can cut to the quick and try and get this trial back on the road.
I also hope that you will make a ruling on the word "Match." I'm very troubled about that.
As am I. I think I've already indicated my concern with that. But it depends on what the foundation is. Maybe something miraculous has happened. But Mr. Deedrick's reputation is well-known, and I don't think we're going to see anything strange, I don't think.
No. I'm not worried about that. That's a nonissue. All right. I'm going to order the Prosecution to make all--to leave all of these boards here in the courtroom. We're going to recess until tomorrow morning at 9:00 o'clock. I'm going to direct the sheriff's department to allow the Defendant and his counsel to remain in the courtroom with the exhibits so that they can review these matters. And we'll start tomorrow morning fresh at 9:00 o'clock, but we'll see where we are.
I'm going to order Mr. Deedrick to remain to consult with Defense counsel and asked to answer any questions that they may have of him. All right. Would you take the exhibit down, please. Let's have the jurors, please. Mr. Fairtlough, would you move the easel.
There is only one remedy for these violations, your Honor, and that is preclusion. It would be totally unfair to stop this trial long enough to permit us to go through each one of these photos.
Well, there's an old Chinese saying that a picture is worth a thousand words. There's no other reason to present these photographs other than to use it as clearly evidence of the fiber evidence that we have here and the other comparisons, and to argue it's not evidence is a specious argument.
And the suggestion that because we saw the fibers through a microscope, we're not harmed by these photos popping up is specious. That's like saying because you visited the crime scene, you're not entitled to see the photos of the crime scene we intend to put in evidence.
The use of the word 'Match' or 'The same as' or any similar articulation is simply deadly.
I'm going to recess this matter until tomorrow morning at 9:00 o'clock... I'd like to finish this case sometime this lifetime.