Back on the record in the Simpson matter. All parties are again present. Mr. Cochran.

Thank you very much. First of all, thank you, your Honor, for the recess. It was necessary for us to be able to talk and discuss this matter. We certainly appreciate the Court's indulgence in that regard. Your Honor, I stand before you today in a very, very serious, perhaps the most egregious, outrageous thing that has happened in this trial thus far.

Yes, your Honor. I was going to ask at the outset, this argument will be rather lengthy, and I would ask that Mr. Deedrick be excused for reasons I think will become obvious during the course of the argument.

I'm not going to excuse him at this point. This is a discovery matter that has to do with when things were done.

If the Court feels at some time appropriate, then I hope will Court that discretion.

All right.

The Court will recall that yesterday you recessed early because of what was a serious discovery violation in which the Court in your own words indicated that the arguments of the Prosecutor were specious with regard to whether certain evidence was evidence or exhibits. And you indicated, quite frankly, they could do without that. And so after having done that in an effort to move this case along--and I think the Court is aware that certainly from our standpoint we have indicated we would like to get this case to the jury as soon as possible--we made an effort or at least started to make an effort. Your Honor made it clear to all of us that Mr. Deedrick was to remain, we would have access to look at the boards and to talk to Mr. Deedrick. The Prosecutors didn't apparently understand that. You had to come back out and ask them to leave. We were delayed by that. Finally you asked them to leave, Cheri Lewis and Miss Clark and the others, and they did finally leave. We then started to talk with Mr. Deedrick. Messers. Blasier and Bailey--I had a brief encounter with him--and after a few questions from Mr. Blasier, this agent, this FBI agent, handed us a one-page report which is supposedly a summary of what he had. He wrote this out and handed this to us. And this becomes really important, because this was part of the disguise, part of the guile, if you will, of this agent in trying to throw us off. This was handed to me actually, and I then handed it to Blasier, and Blasier, however, being the lawyer that he is, continued to ask reports that this man may have written and this booklet that he was carrying. I walked over at some point and we talked about the booklet and I then felt the need to call your Honor out a second time, if you recall, because there was a question, he wanted to talk with you and I said we don't do that in court, you don't just talk to the Judge, the Judge talks to us. And I asked you to come out and then you made an order, and as I said before, Miss Clark concurred in that, that he turn that book over to us.

Well, we summoned Miss Clark at that point.

We summoned Miss Clark down and then at some point when she sat and talked with him, your Honor made the order and I believe she did concur in that order at that point. The book--

That was to make available to you the contents of the notebook that the agent had--

That's correct.

--here in court. All right.

We have been trying to get that and we had to have your intercession. We then got the notebook. And at that point it became clear exactly why he had been so reluctant to provide that notebook to us. Now, you have now been provided a copy of this five-page single-spaced report entitled "The search for the source--carpet fibers found on the leather glove and the knit hat in the O.J. Simpson case." Now, your Honor, yesterday you talked about sanctions and appropriate sanctions, and yesterday my learned colleagues argued to you that preclusion of certain of the photographs was certainly appropriate, and I will address that more than as we talk about it. However, this more egregious discovery violation that has now surfaced we think requires even harsher sanctions. This Prosecution's expert, FBI agent Deedrick, prepared a written report from this case and this report basically summarizes his so-called rareness of the alleged beige fiber found in Bronco vehicles. And I would like to quote from a wise Judge on this very issue, page 29129: "If it comes to pass that there are reports or that conclusions were reached and there was a deliberate manipulation of the process and an instruction to the witness not to prepare a report to avoid discovery, then those witnesses will not testify and that is going to be the sanction. That was an order that I made early this year." Now, your Honor, that might sound familiar because those words came from your Honor's mouth, from your Honor's lips, and you said on it a number of occasions.

Standing right there.

And you have said it more than once and you said it in response to Mr. Rock Harmon's ranting about our supposed experts and whether they should be entitled to reports. You made it very, very clear that preclusion was the appropriate sanction that anyone should expect. Now, the Prosecutors heard that, we heard it and in Cheri Lewis' latest brief she quotes your remarks also. So your Honor, they knew what the rules were. It became very, very clear. And for Miss Clark to stand here yesterday and to say to you I didn't know, it must have been in my office or some other place, Miss Clark has not had a witness for two months, it seems, and she has had plenty of time. This is a fine lawyer who knows what she is doing. She is running this case. She is the leader, make no mistake, the leader on their side. She knows what's going on. They are planning, they are ending this case with this evidence. And for them to come up with this, I think you can agree with this, is absolutely outrageous and totally egregious. So I wanted to start off with letting your Honor hear those words which I think are very wise words and are very appropriate and I think they probably lead us to the solution to this problem right off. So now in this case, not only was a report prepared by this witness, and then he attempted to avoid disclosure and to conceal its existence. We learned of the report only when you interceded and we interceded and we were allowed to photocopy the entire loose-leaf binder material. What does this discovery consist of? I won't bore you in detail, but it consists of a five-page single-spaced report which I have given you the title of. This report contains extensive figures about numbers. And you may say, well, Mr. Cochran, you come have done this, you could have gotten this, and we are not sleeping at the switch, your Honor. We tried. Let me direct you to the bottom of the page 2 of this report to these words, the last paragraph: "On January 31, 1995, Julie Shaw, legal representative for Dupont, advised that all production information of type 1405 fiber is proprietary." And I can tell you further--and if you want to take testimony regarding this, we have an investigator who was given disinformation by the Masland company, disinformation. They didn't give us the information, even though we tried to seek it just in a general sense. The FBI could get information; we couldn't. They knew they had this and I wouldn't be surprised if Masland didn't go along with what the FBI had already told them to do, not to give us anything, so we couldn't have gotten it. So I want to make that clear right at the outset, your Honor. So this report goes into a number of things, total number of cars, carpets, square yardage and that sort of thing. And in addition, your Honor, there are 50 additional pages of supporting documents on his research into this area. We have not given you, I don't think, a copy of the entire notebook, and perhaps we should do that before you are asked to rule on this matter. This includes information from many, many different sources. And just again to briefly summarize that the conversation that Deedrick had had with Blasier, so you get an idea of the concealment and the guile that was involved here, Blasier first asked him where he had obtained the information about the carpet. He mentioned Ford and Masland. He asked him if he had any written information. And he said he did, although he did not go into detail. He asked him if we could have what we had obtained. And he said possibly. A few minutes later he gave us then the one-page report which I'm going to ask to have marked as an exhibit and give you a copy of it, whatever our next exhibit is, this one-page handwritten outline providing the rough figures, et cetera. Blasier then asked him if this was all he had and he wouldn't answer the question directly, your Honor. He kept saying this was the information. Blasier kept pressing him. He finally admitted there were source documents and that the one page he had given me was not the source material. Blasier then asked him what he had. He reluctantly showed Blasier some letters that were in this binder; however, he never showed this report. Talked about it being his report or his research. Talked about starting this research last year, your Honor, and that it was completed several months ago. Clearly discoverable, your Honor. We should have had this. And he goes on and on and he did not turn this over, your Honor, until you ordered him to do so. "Preclusion then it seems to me," citing this learned Judge, "Is the only reasonable remedy. Preclusion of the witness entirely or preclusion of at least any testimony concerning commonness or rareness of the Bronco fiber." You talk about prejudice, your Honor. Consider this. You saw the cross-examination of Bob Blasier. Thoughtful, to the point, concise. He asked questions at the end, your Honor. The questions he asked dealt with, if you recall, the commonness or rarity of carpet fiber and whether or not police cars had been checked. If this report had been discovered as it had been, he wouldn't have asked those kind of questions, we would have had this fiber. But that is the prejudice. You can't unring that bell. He asked those questions because they hid this. And when you talked about prejudice, you can't unring that bell, if the Court pleases, so we think that we have been severely prejudiced, and "We" meaning O.J. Simpson who is here trying to get a fair trial if they are then allowed to present testimony concerning this issue. We will not ask any questions on this topic during our part of the examination, if and when this man testifies, if you don't preclude him totally, and we think they must also be precluded from doing the same. The elimination photographs, the elimination subject photographs, your Honor, we are asking also they be precluded from using the exemplar hair boards and their two blue black fiber boards. Prejudice--it is clear from the photos that the reference hairs of Mr. Simpson, within their reference hairs there is considerable variation, your Honor, within each person. Hair comparisons are never done on the basis of photographs and never on the basis of a small portion of a single hair. Had we known that they had intended to do this, had they complied with your Honor's rules, had they complied with the rules of the laws of the State of California, we would have handled this much differently. We would have had or made additional photographs, your Honor, of the elimination subjects to show the great variation in hair and point out that some of the hairs of the so-called eliminated subjects, at least photographically, appear to be similar. Re the photographs of the blue black fibers. Had we known the Prosecution prepared photos, we would have compared them to the slides of the fibers to make sure they were being presented in a way that was not misleading, since your Honor is aware that photographs can be manipulated easily to make things which are dissimilar appear similar. We would have done things far, far differently at a time when they have announced to the world that they have this wonderful compelling case and they are about to rest. At the very end of their case, they do this, your Honor. And so we come back to the law, your Honor.

Miss Clark said something very interesting, it seemed to me, in our little brief discussion of this motion. She said, well, it was just his report, as though that didn't make it discoverable. Well, let's look and see what the law says on that, your Honor. 1054--and this Court is very aware of that, you have talked about it many, many times--deals with 1054.1, information to be disclosed by the Prosecution. Let me skip down because this Court knows this by rote, I'm sure, but let me just refresh everyone's recollection, 1054.1(F): "Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the Prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments or comparisons which the Prosecutor intends to offer in evidence at the trial."

Now, your Honor, all we ever asked for during the course of this trial is a level playing field. We ask they be treated just like we have been treated, and I'm sure your Honor will do that. But in addition to that, we now have additional information that we hope to have in Court today, sent from back east where this may not have been the first time that this particular agent has done this. We expect to have information by the end of the day that there was a case in Fairfax, Virginia, in 1991, where this same surprise tactic was tried by this agent and the Prosecution, and certainly the information we have is one of the reasons that that testimony was precluded was because again of a discovery violation and the unfair attempt to do this to the Defense. Now, we hope to have that today, along with still another case in Pennsylvania we expect to have today. Now, the Court may ask what about this whole thing with the FBI and the Prosecution? Well, I need point out to you only that Mr. Bodziak came in here and testified, an honorable witness who came in and said I can say this and no more. He didn't become an advocate for the Prosecution. He wasn't trying to hide things. In fact, in the course of the Prosecution turning over all those documents, we asked the appropriate questions. That is what discovery is about, and in doing that, we are prepared to deal with that. There was no delay, they didn't hide anything back. And it pointed out, your Honor,

That Mr. Goldberg who I think had Mr. Bodziak, he understood what the obligation was, he works under Marcia Clark, so certainly she understood. They complied with it with Bodziak and the FBI. Things went smoothly. There was no attempt to deceive and we went right through it, your Honor. So they can't come and claim they didn't understand what the deal was. But it is clear, your Honor, that the reason we weren't given these photographs and things because if we were given the photographs of the fibers, it would have piqued our interest. We would have asked questions about this question of the fibers and their supposed rareness or uncommonness. So this was calculated when they did this. When this agent sat here in Court yesterday and said those photographs and those boards were prepared sometime ago--these reports were done in April or May, several months ago--that is no excuse for the Prosecution, your Honor.

And I'm real sensitive about being the so-called head of a team where you take responsibility like a human being, without gender. And so I remember in this very Court a time when--a time before I was even as lead counsel, we were held responsible for something we never even knew about or ever saw. As the Court said, we knew or should have known was the test you gave us. And that test applies in the only to the Defense; it applies to the Prosecution. And so in this instance, we also last night had occasion, Mr. Neufeld had occasion to speak with Mr. Scholberg. Mr. Scholberg indicated that--and they went through the photographs. Of the photographs the District Attorney indicated were turned over by Mr. Deedrick to Mr. Scholberg--and by the way, they worked together. Scholberg was apparently Deedrick's boss at some point. Mr. Scholberg never turned those over to us. He thought that those photographs were for him. We never got them. We were not complaining about that because they were given to him, but he now says, and Mr. Neufeld will correct me if we are wrong, but there are at least 13 photographs that he has never seen, he never got, so a further violation. Is that right?

13 that are on the board that he never got. He never gave us any of them, but we won't complain about that. But there was a previous relation between this agent and Mr. Scholberg, and so he is prepared to so indicate that based upon the conversation last night. I have already indicated to the Court that with regard to our investigation this Masland corporation was not forthcoming, they did not give us information. In fact, it seems they gave us disinformation, information that is proprietary, generally, information the FBI would have that we could not get, and it is information, your Honor, that is prejudicial to Mr. Simpson. And this is all--make no mistake about it--this is about Mr. Simpson. This is about whether Mr. Simpson can receive a fair trial. This is about a trial that started on September 26th, your Honor. And you have gone out of your way to try give us a fair trial and to have this occur when we know we are coming to the end, when you have made it abundantly clear you don't want delays, that you want to move this on, that when you warned all of us there would be preclusion if we don't comply with the laws. And we have seen the sanctimonious pious posturing by the Prosecution so many times in this case. Now we find that the most egregious violation of all calculated comes forward on a day when our jury is sitting back there waiting and you have told them this case is going to be over and the case whimpers to a conclusion we have got to wait even now further because, your Honor, we cannot just sit here and accept we haven't received certain photographs. We isn't sit here and accept what is going on, this report we never got. What are we to do? We don't want to delay the proceedings. So what do you do to keep that from happening? In the spirit of what you say, you preclude these things. That is the only test. Even you said yesterday how tough it was as you sat there trying to think about how do I deal with this? And you oftentimes say we never make it easy on you. Well, this time it is not us, it is them that haven't made it easy on you. And you know what, Judge? You never asked for a rose garden when you took this job. This is a tough job and you are equal to the task and you want to be equal in the way you've dealt with it.

We felt the sting of your sanctions. We dealt with them like human beings like we should. The Prosecution has to do the same. They can't stand up here and give you a lot of mealy-mouthed explanations about yesterday, well, it is an exhibit, I'm not going to use this. I don't know what this is. That doesn't fly. You've got to end stand up ultimately and I call upon them now to stand up and say that they are wrong, they made a mistake, they are caught and under what you've told us preclusion is the only appropriate remedy. Otherwise, your Honor, how are we going to recover? How are we going to deal with this if you don't do that? Continuance isn't going to help. We don't want a continuance. Well, how long will it take us to get stuff and to get up to speed on things we should have had three months ago? It is totally, totally unfair and--

Mr. Cochran, which of these 13 photographs were not received by the Prosecution?

I know--

By the Defense?

I know we have a one-lawyer speaking rule. I am not finished yet. Can Mr. Neufeld answer that?

When you are concluded, yes.

May I get some water, your Honor?

Certainly.

When I have concluded, your Honor, Mr. Neufeld will stand before and tell you that the photographs we have never seen and Mr. Scholberg never got and none of these reports we have never seen anyway. With regard to the so-called elimination photographs, your Honor, in just looking at those photographs, it has become clear to us--we ask your Honor to look at one of these photographs. This--

With regard to, as I said, the elimination photographs, we have--I have indicated to you that there are that there are great variations between a single individual and a single individual's hair strand. And so we need additional time to look at that, to prepare for cross-examination, but if the Court precludes that, that doesn't become a real problem for us. But further, your Honor, and I want to show this to your Honor, and I will show it to counsel first, in getting copies of these photographs of alleged hair strands, this agent or someone has taken what was K, a known hair, and made it a Q, so you will see Q7, which I think was O.J. Simpson and he has made it Q8A so that--Q--K7, I'm sorry, K7 and made it Q8A, looking at the photograph, and I will pass this up as your Honor can see this. And I think, your Honor, that again this points out the kind of things that they are seeking to do. It occurs to me that as I said before, the Prosecution understands their duty. I was reminded by one of my colleagues that when I said they made a mistake, this is more than a mistake. This was calculated. This was intentional. This was a tactical decision to try to gain an advantage at the very end. This was because their case was going poorly. This was because they thought they were losing. They had to string to try to pull something, but it just won't work, because there is something about truth, something about honesty that will be revealed. And that is exactly what happened in this particular case when you came out and ordered that report and allowed us to see this. So I'm going to ask you to look at those photographs. I'm going to ask you to look at the one-page we were given, and it is just part of the deception that we were given. And finally, your Honor, all I'm going to ask you to do--because Mr. Simpson can't address on you this issue--I'm going to ask you to do what is right and what is fair under these circumstances. We want to go ahead with this case and finish this case. This jury deserves nothing less. It is not their problem. It is the Prosecution's problem when they intentionally do this, your Honor, and they have to be held accountable. And the way you hold them accountable is to preclude this witness or at a minimum preclude those things where they violated discovery laws in the State of California. And there is no other remedy otherwise. Nothing else helps us because you don't want to wait two or three months for us some get up to speed where we would have been, do you? Would you now please hear from Mr. Neufeld, your Honor.

Mr. Neufeld, what I'm specifically interested in, in which of these 13 photographs were not received?

Yes. Just to sort of explain to you the source of the information, I spoke to Mr. Scholberg last night and he did say that he had received some photographs from Mr. Deedrick and I asked Mr. Deedrick--

Where is Mr. Scholberg located?

He is in Virginia. He had been the head of the hair and trace unit at the Federal Bureau of Investigation up until the late eighties when he retired. And I asked him to please read off the Q's and K's on every photograph that he had. He did that. I then gave the list to Chuck Morton this morning and asked him to compare that list to all the Q's and K's on the evidence boards that have been broad into Court and to give me a list of all items--all items that appear on the boards that weren't on the list from Myron Scholberg and they are as follows: K53--

Which board are we talking about?

I don't have it by board. Mr. Morton simply wrote out the list of K's and Q's. During the recess I can actually do that, your Honor, but I'm just giving to give you the actual--

K53.

K54, Q7A, Q3, Q1, Q3B, Q27, K19, Q7C, Q8B2, K18, K47 and K17. Your Honor, the only other--the only other just fact that I wanted to present to the Court, just for clarification, the problem with these photographs that we received last night is that because someone changed the description, what once was thought to be a standard hair reference hair from Mr. Simpson has now become allegedly the photograph of some evidence of an unknown hair in this case, we would have to go back, no. 1, to check whether or not on the negatives or the contact strips of these photographs to know if in fact it is a k or it is a Q. Obviously the person who made this description on these photographs wasn't sure and changed his mind. Also, we don't know whether or not these photographs on the board have had their descriptions changed as well or whether other photographs on the board have had their identifications changed as well because they are glued to the board. We would need to see the backs of those photographs to see on how many other occasions the Prosecution did that with these photographs and then we would have to go back and look at the negatives to see--as well as any contemporaneous notes that Mr. Deedrick made when these photographs were taken--to confirm that it is a q as opposed to a k or a k as opposed to a Q, because as the Court can readily see, unless you have some kind of note taking, it is easy to confuse them. There is nothing so unusual about a photograph like this that one will readily know, oh, it is a k as opposed to a Q, so these photographs simply illustrate that problem to the Court.

All right. For the record, do you want to identify the markings on those photographs?

Yes, your Honor. First is a photograph with a number on the back which says "17170 to 17179." It says on the back "40808026." Originally it said "K7," and the "K7" is crossed out and written above it is "Q8A." The second photograph, the numbering is 17--and there is a cross-out on the number, your Honor, but it looks like "17240 to 17249," but those numbers themselves have been crossed out and written over. And it then says "40808026." Once again there is a "K7" which has been crossed out and written over the "K7" is "Q8A," as in Albert.

Thank you.

Thank you.

Miss Clark. I'm concerned about two things: The rareness report and I'm concerned about the 13 photographs.

I only counted 11, your Honor, but--

I counted 13.

With respect to--let me first start out with the report then. First of all, you know, Mr. Cochran has argued to this Court in bad faith. He is very well aware of the fact that the Prosecution did not know about this report until it came to the attention at the same time that it did for the Defense, at which point I readily agreed it should be turned over. I had never seen it. I did not direct that it be prepared, I did not know the research was going on. I found out about the report last night and immediately turned it over. That is a far cry from the egregious and willful violations perpetrated on us by the Defense throughout this case, hiding witnesses, hiding reports. And what is very important to point out, Mr. Cochran read your words, but he obviously did not understand them. The words that he read stated that conclusions that are reached by expert witnesses must be turned over. Conclusions of this witness were indeed turned over. And this Court also stated that if instructions were given not to prepare reports, preclusion would be the remedy.

At no time has anyone on my team ever instructed a witness not to prepare a report, ever. Quite the contrary. Every witness, if we knew about anything ongoing, was instructed to prepare a report for immediate production. This research that was conducted by agent Deedrick was done for his own purposes. Yes, tangentially, yes, this case triggered that, but this is something that is ongoing by all of the agents at the FBI. They don't just sit behind a microscope. When they see a fiber they investigate the background. Now, what is important here is that obviously the reports turned over to counsel indicated very clearly what his conclusions were, that he identified the Bronco carpet fibers as being the source of the fibers found on the Rockingham glove and on the knit cap and he gave enough information for them to go forward and contact Masland. Obviously then the conclusions and opinions of the witness were turned over in an adequate form to allow the Defense to do further inquiry. That is the point of discovery, so that they are informed so that they can do their own investigation.

Now, Mr. Cochran complains only today of the fact that months ago his research went nowhere, that Masland was stonewalling, that they weren't being helpful. On previous occasions when they have had trouble with a witness or with some agency getting information from them, they have not been shy about asking for our assistance, for the Court's assistance. And where is the subpoena that they could have issued on Masland for this information? Where is the request to the Court for assistance to gain some help in getting the information from Masland? They obviously knew where to go to get it. They obviously made these phone calls. They got some information from them. Why was no one told that they were having difficulty? They could have even done it ex parte with the Court and never chose to do so. And now they are complaining that their own failure has caught them off guard. They had the information to go forward and do the research. They did a limited amount, stopped and decided it wasn't worth it and it wasn't important to them. Agent Deedrick did. He made the phone calls. Now, the problem with their position is that it is specious. They have the conclusions, they have his opinions, that is what the Court properly indicated we had to turn over. Now the cases that counsel is relying on indicate that we are required to turn over the reports of witnesses, their opinions and their conclusions, and that is what we did, and that is what agent Deedrick included in his reports. The report that is in front of this Court now indicates only the information obtained from Masland pursuant to routine telephone inquiry that is conducted by the FBI whenever they find questioned fibers of an unknown source. And that is what he did. So what that is, is inquiry that supported the ultimate conclusion and opinion that the Defense has had for months. We didn't delay in turning over agent Deedrick's reports and notes, all of them. They have had them. Moreover, the complaint and the hue and cry over these photographs is--is ludicrous. They've had this evidence not once, not twice, but three and I think possibly four times in their custody with multiple experts examining all of the evidence. Could they have taken photographs? Absolutely. On any of those occasions they could have.

And what precludes them from doing so now? Nothing. Nothing. They are saying that that they are very concerned about the photographs being representative. Fine. You know you have taken the evidence four other times. You know, they didn't know what to do with it then they didn't know how to take photographs? Now that they have an idea of how to do it from agent Deedrick maybe they can tell their experts to do it. Certainly the Court will not hesitate to let them have the evidence again, but it is not a question of them not knowing what was here, not knowing what the conclusions were, not having an opportunity to have every expert they can get their hands on examine them stuff and come to his own conclusion. They have been denied nothing. There has never been a Defendant in the history of this state, I warrant, that has had everybody bend over backwards for him the way this one has. We have shut down laboratories, we have sent evidence all over the country, multiple times. We have allowed Defense experts into our laboratories, multiple times. We have dug up records going back God knows how long from other cases for this Defendant on multiple occasions, reams and reams and reams of discovery. And they don't get some photographs of evidence that they have had in their control and possession on four separate occasions and they are complaining? Go take photographs. Fine. This is nothing about a graphic depiction of what was seen under the microscope by our expert and by their multiple experts. They want to take pictures of their own, they are entitled to do so. Do I regret that the photographs they explained of were not turned over? Yes. We have nothing to hide. There is no reason for them not to have seen them other than that it was an oversight. And though Mr. Cochran waxes eloquent about how I should be taking responsibility for the failure, to turn those over, and I do, I have never heard Mr. Cochran do so for the Defense, never in a warrant, not once. It is everybody's else's fault and we didn't know and all that. I'm telling the Court I take responsibility. I do. I do. I wish it had been turned over. Is it all this egregious? No, it is not. No, it is not. They have had the conclusion, they have had all the opinions, they have had all the reports that are pertinent that are discoverable under the statute. They wanted the underlying research done by Mr. Deedrick, fine, now they have it. Had I known of it earlier they would have had it earlier. They got it as soon as I knew about it. And the Court knows that is what happened. The Court was here yesterday when I was called down and shown for the first time the book repaired by agent Deedrick that contains that report. I read that report myself last night for the first time. What the Defense thinks they are going to do with the fact that an inquiry by telephone gave certain dye information--formulations and calculations, I have no idea, but they are entitled to do it.

Doesn't this report really speak to the rareness, the relative rareness of this particular fiber, and doesn't it eliminate--say, for example, one of the things that piqued my interest yesterday, and I asked Mrs. Robertson to pull up the crime scene photos to see how many Ford automobiles were driven by the police officers to the crime scene. And I was looking to see how many Ford Taurus's at the crime scene, but I know that Ford Taurus automobile are eliminated as a source of carpet which I found interesting.

Right, right, right.

And I agree with you, your Honor, but this is not--the problem I have with this, is that this is information that is reposed in a third party. This is not information that is retained by the FBI.

Let me ask you one other question. When was this report completed by Mr. Deedrick?

I have no idea.

When was it completed?

I'm sorry?

When was it completed?

When was it completed?

Sometime this year. I don't recall.

A month ago, two months ago?

A couple months ago probably.

Okay. All right. Miss Clark, any other comment?

Yes, your Honor. The problem that I have with the Defense argument is that obviously they are arguing out of both sides of their mouth. You know they say, we don't have information. It wasn't fair that we didn't get this. Obviously they did get enough information. They went to the source. They asked the questions. Their failure to follow up on their--on the refusal of the company by requesting the assistance of the Court or the Prosecution is up to them. They chose to drop the ball at that point. That is their--that is their choice. But to now turn to us and say, you know, it is our fault that they didn't follow up on that line of inquiry. We are required to give them the information necessary to challenge the evidence and we did, and they began to do so and then dropped the ball. Now, had they gone to the Court, requested assistance and then not been able to get the information, I can understand that, but they dropped it. They went to Masland, they didn't get the answer or they did get an answer, I don't know what exactly occurred, but obviously they had enough information to follow through and that is really the bottom line. That is what discovery is about. Now, I'm not saying I don't wish that we had turned this report over earlier. I do. I do. Because we don't need to be having all these delays right now. Is it compelling in the sense that this is an egregious violation? Again, I can only tell the Court the Defense was given information that they could have gone and followed through on. They did begin to, so obviously they had enough. And now that they do know they can give it to their experts and they can have their experts examine the reports, examine the underlying information, talk to anyone from Masland that might help them, speak further to agent Deedrick if that the help them. They are not precluded. They have a Defense case to put on. But to preclude the People from putting on important evidence like this in light of the fact that they have the report that contains the opinion and the conclusion of the expert with sufficient information furnished to the Defense to follow up on that and see what they could find out, I mean, they have everything that they are entitled to under the law. What they are complaining is that something else was prepared that they did not see, that simply documents Mr. Deedrick's further investigation through phone calls to Masland--

Does the report--

--as the third party.

Does the report turned over by Mr. Deedrick previously contain this information?

The report turned over to the Defense?

Yes.

You mean the one yesterday or earlier?

No, previously, his previous report.

No, it doesn't contain the detailed information. It contains the opinion and conclusions about the match and about what fibers matched. It will contained information I think about the type of carpet fiber that it was, manufactured by Masland.

Any indicia of its rarity? Number of vehicles produced that have this carpet, this particular color?

I don't believe so. I don't believe so, because I didn't know that until last night, so--

All right.

If I didn't know--let me indicate what the photographs are that the Defense--

I was just about to ask that.

I thought so. Okay. The K53 and K54 are the exemplars of Kato and Chachi, the dogs. K47 is a hair exemplar from Collin Yamauchi.

K--Q7A?

I'm sorry, that is K47.

K47.

Uh-huh. Now, that is pretty interesting. If those are the photographs that the Defense claims that they don't have, then they must have photographs of the other police officer exemplars that we took and lab personnel, if that is the only one, because that is one of that series of the police officer and lab personal elimination standards, your Honor, that we have on the board. K47 is one of those.

All right. Go ahead.

K18--K17 is the exemplar from Nicole's dress. K18 is the exemplar from Ron Goldman's shirt.

K18.

18, yes. K19 is the exemplar from Ron Goldman's jeans. Q27 is fibers from the Defendant's socks. K8B2, fibers from the blue knit cap. Q7A fibers from--hair and fiber--I'm not sure if these are hair or fiber, your Honor--K7A from the Bundy glove, K7C from the Bundy glove, and then Q1, Q3 and Q3B are from the Rockingham glove. I should indicate also that Tony Longhetti to took 65 photographs to Mr. Scholberg along with the evidence. There were thirty additional photographs that were left with him because they were extras and Mr. Neufeld asked him to give the photographs to him. He said he would. However, he has since checked evidence log and seen that Tony Longhetti to took all the evidence photographs back and he therefore is probably not going to return the photographs to Mr. Neufeld. And Mr. Scholberg should talk to Mr. Neufeld about this. In any case, 65 photographs were given to Mr. Scholberg back in September of `94.

But did they include these?

Well, I'm taking Mr. Neufeld's word for it that they didn't. That is what he says. I don't know.

All right. The Kato and Chachi exemplars I'm not particularly excited about. I don't think either side really cares about the dog fibers, but the Bundy glove, Ronald Goldman, I mean, these are critical fibers.

These are just photographs, your Honor. I know the Court--I'm not going to say it again. I just think that we probably see the issue differently, but the Defense has now had all of yesterday, last night and this morning, to look at all of these photographs. They have taken photographs of the boards themselves. How much more--how much more would they have done had they had these photographs earlier? If the Defense is complaining that they want the opportunity to take photographs, too, nothing prevents them from doing that. The evidence is readily available. It hasn't gone anywhere. It is in the same condition it always was. Nothing has been denied them. They are not precluded from it. And now they have examined all of the evidence. You know, by way of example counsel points out that Bob Blasier asked a series of questions that would not have been asked. Well, certainly they would have. They were pointing out the fact that LAPD didn't do the research when they know that the FBI did, so, you know--so I don't think that it would have changed that cross-examination any. But the Defense has now seen all of the photographs they are telling the Court now that they did not have, they have seen, they have taken pictures of. How long do they need to look at the photograph to be ready for cross-examination? I mean, isn't that the bottom line here, your Honor? We have an exhibit they had--they saw the day before we intended to introduce it. They've had now additional time to examine it and how much more would they have done if they had had the photograph a month ago?

All right. Any other comment, Miss Clark?

May I have a moment, your Honor?

Certainly.

Your Honor, while she is doing that, I clarified with Chuck Morton that--

No. She is entitled to hear what it is you are saying.

Sorry.

Let me cite to the Court a couple of cases on the discovery issues. Hinz versus Superior Court, 20 cal.app.4th, 1818, page 1822 and 1823, and Sandifer--excuse me. Wood versus Superior Court, 25 cal.app.4th, 178 at page 182, both of which stand for the proposition that the underlying data on which an expert relies is not the subject of the discovery statute that is compelled to be turned over. We did not intend to offer the information given to Mr. Deedrick from Masland industries, simply that it was his opinion that the fibers matched and showed the fact that Bronco fibers did change over the years through the photographs which pins it down to a `94 Bronco or late `93, and that is it. We were not going to offer the information that Mr. Deedrick obtained from Masland industries, although there would arguably be some basis to do so because an expert can testify to some of the hearsay he relies on. That was never the intent. It wasn't the intent because I didn't know about it, but I could certainly understand the Court precluding him from referring to that at all in light of the discovery issue. But at least according to the case law, the kind of information we are talking about with respect to the research done with Masland is not discoverable in any event. His conclusion is and it was turned over. With respect to the rarity--

Was the fact that it is consistent with the carpet in a late `93 or early `94 Bronco, was that in Mr. Deedrick's original report?

I don't know. No, no. No, it was not. I can only come back to the fact that this was information that was readily discoverable by the Defense as well, though. It is not as though--though it was something that was reposed in the FBI. This was a third party that the Defense can an access to, gained access to, and could have sought further assistance from the Court to gain access to. And I don't understand why further subpoenas weren't issued for it, but they didn't.

All right. Miss Clark. Anything else?

No, that is it, your Honor. I just--they have seen all the photographs now. They've had overnight to look at them, they have had all day to look at them, yesterday as well. If they want more time to look at them--I don't see--you see the problem is this, your Honor: The Defense complains that they need two to three months to prepare for this, which is ridiculous. They have had six months. This case has been--they've had the reports concerning Mr. Deedrick's conclusion about the fact that the Bronco carpet fiber from O.J. Simpson's car matches those fibers on the Rockingham glove and the knit cap for at least six months, if not more. They have known where to find the information concerning the production of that carpet type for at least six months, if not more, by their own admission, and now they are complaining that they didn't do further or better research. And that is not our fault and it is not our obligation, and if they are having trouble getting that information, it is up to them to let us know. We can't go knocking on their door and say, excuse me, have you had any trouble getting information lately? That is something that they have to tell us. And with respect to the photographs, what benefit would they have had to see the photographs even if they existed six months ago? They look at the photographs. They want to take their own, they can take their own. They can still do that. And that is the bottom line, is there is no prejudice and there is no harm other than their own failure to follow up on their own lead.

All right. Counsel, let me just make a comment. I don't find the Hinz case to be appropriately cited in this situation. The Hinz case at 1823 states as follows: "The report of a non-testifying expert which is in some way utilized by a testifying expert is not a document at least in ordinary circumstances which the Defendant will intend to offer in evidence. It is not therefore literally embraced within the description of the statute. That such subsidiary report may be discoverable as an aspect of cross-examination of testifying expert does not undermine this conclusion." This is a report by a testifying expert, not a non-testifying expert, so the Hinz case has no application whatsoever to this situation.

But we are talking about the information obtained from a non-testifying party which is Masland.

Thank you very kindly, your Honor. I'm not going to stand here very long, your Honor, because you heard all this and the issues are clear. Certain things I just feel compelled to a say and then I will sit down. Mr. Neufeld wants to make a clarification regarding the photographic exhibits and I will ask you to hear that also. Just briefly, your Honor, we've heard a lot of legal mumbo-jumbo with regard to whether this is a report, and you just said it best, this report--this report, your Honor, is entitled "The search for the source--carpet fibers," et cetera, "The O.J. Simpson case." And if you look at this report, your Honor, every page they are talking about O.J., O.J., O.J. Simpson throughout this report.

This is--that is folly for her to stand here and say that. You saw the report. The booklet this FBI agent had had "O.J. Simpson" on the outside. And so when she talks about Mr. Simpson getting special favors, never before has there been a Defendant who has been subjected to every law enforcement helping in the case, ever in the history of the state. We have to ask for things because we are fighting the power of the government and a man who is innocent, and that is what we are trying to do here, so let's make that clear. But I'm not--you've heard all that that and they can cite you cases, as they oftentimes times do, that are never on point. But I'm going to cite you Ito on the law, Ito on the law in this case, and it says: "If it comes to pass if there are reports or conclusions which were reached and there was a deliberate manipulation of the process, there will be preclusion." You said that. That is the relevant law in this courtroom. We all abide by that. We have lived with that and we do accept responsibility, contrary to what she said.

She tried to accept it and she tried to weasel out. You have to accept it or not accept it. And their--you know, it is very hard for Miss Clark to say they--she was wrong and this was intentional. And they she says they saw the photographs overnight. Your Honor, I remember one time there was a situation where you gave them like as long they wanted. They asked one time for a month over some little tiny thing that they wanted and we were--we were aghast they wanted a month. I think it was early on in the trial. I don't think it ended up being the positive. But now she says we saw the photograph last overnight. When we finished seeing the photographs last night, everything back east was already closed. And the last thing I wanted to bring to your attention, is this whole thing about Masland--and you know it is very interesting for the Prosecution to make these kind of thoughts, these kind of--largesse thoughts--I used to be a Prosecutor so I can understand that. When the FBI calls Masland, it is far different than a Defense investigator calling Masland. And Masland gave us disinformation saying this carpet was common is what happened. It was common, not rare, and that is the whole thing. Every time you ask a question about that report we were given, which throws us off, they have to then step back and say, well, you know, this rareness and commonness thing, well, you know, that is something I wasn't going to use. Well, whether or not Miss Clark knew about this or not, she should have known, and that is the test you applied to us, your Honor. She should have known. She is the leader of that team and she is a very thorough lawyer who hasn't had a witness in a long time who is building to this point. So it seems to me if Mr. Deedrick kept this from her, then she should take it up with him, but I--I would suggest that he knew, he knew it was there. And even now, your Honor, he sits over there says trying to tell you this isn't a report. If this is not a report, I don't know what you call it, and that is the essence of it. So you have listened to us. Now it is time for action. You have heard us. It is up to you. We just want a level playing field and we want fairness here, and fairness, your Honor, is preclusion. We don't want a continuance. We want hold them to the same standard of everybody else.

All I have to do is cite Ito on the law and I don't have to miscite any cases. I can cite your Honor. That is all I ask you to do. Would you listen to Mr. Neufeld now briefly?

Just to clarify which photographs we are talking about.

Your Honor, there was a mention by Prosecutor Clark about K47. Mr. Morton says that that is actually--it is a standard reference fiber from Q47 which is the knit hat. Apparently there is--we can check it out. It is not a big deal. There may be just a misunderstanding here. That may be one of the standards, blue black fibers from the knit cap, so that is why it was a "Q." It is not a "K." We didn't include it in this list any of the photographs from the elimination board. We never received any of them period, so that is not on this list. None of those photographs were ever turned over.

All right. Let me see K53 and K54, Mr. Escobar.

All right. Thank you. All right. May I see--why don't you just put the next board up, Mr. Escobar, and let's see what's there.

All right. This is the known head hairs from Nicole Brown Simpson compared with some of the q series. All right. On this particular board, Mr. Neufeld, are any of these photographs any of those that were not turned over to Mr. Scholberg?

May they get closer, your Honor?

May we approach? I can't read the number.

Sure, sure.

May he go through the well, your Honor?

Yes, he may.

Thank you.

I don't see any of these on my list.

Q1 is on your list, your Honor.

They have K7B and K27.

We have K7B and we did get K23, but we did not get the K1's. You didn't have those on the list?

No, I just found it.

Okay.

All right. Thank you, Mr. Escobar. All right. This is "Known head hairs from Ronald Goldman, head hair from Ronald Goldman's shirt compared with Q3C and Q3C and Q23." I think you have all of those.

No, they have all of them.

Yes.

All right.

This is the "Eliminated hair standards" board.

All right. The elimination board. All right. Thank you. (Brief pause.)

They have all these.

One second, your Honor.

We do not have Q8C. It wasn't on your list, but you have to understand Mr. Morton looked at it very quickly this morning, but it is not on Mr. Scholberg's list, because I have Mr. Scholberg's list here also.

Well, I have 13 photographs here listed that you gave me and Q8C is not one of them.

I'm saying is the no. 13 came from Chuck Morton's very quick review this morning comparing them to a list that I received last night from Myron Scholberg. I'm saying that there is one that Mr. Morton missed in his very quick review this morning, but it is not on Myron Scholberg's list. The additional problem, your Honor, with this exhibit, I'm going to ask the Court to consider, is the problem where we have photographs which were originally K7's which are now called Q's.

So you don't have Q8C? Is that the one?

Right. That's correct, but then we have the additional--

How are we determining what they do or don't have?

Hearsay from Mr. Scholberg.

I'm a little concerned.

Hearsay from Mr. Scholberg.

How do you know that what Mr. Scholberg is referring to is what you think it is?

Which is why I asked where Mr. Scholberg was, but we will determine that, but I want to know which are the contested photographs before we go any further.

Just the other problem, your Honor, is these two photographs on that one right now--

I am not interested in that at this point.

Okay.

Your Honor, this was a board that Mr. Morton didn't actually see this morning because it was being photographed, so there are now additional items that are not on Myron Scholberg's list that he gave me last night and they would be Q10, Q13, Q18.

Q10, Q13.

Yeah, and Q18, and then there is this problem which is Q47 here is a hair from a knit cap. The Q47 that Mr. Scholberg gave me he said was a fiber; not a hair. I will just have to get clarification on that. That is all I know.

All right. Let's see the next board.

I mean that is one of the problems.

Next.

There is another Q47.

That is the one--that would make sense, so that is the fiber that Mr. Scholberg was talking about.

We have a second Q47.

Right. We do not have K18. Never got K18. We do not have Q3B. We do not have Q1. We do not have Q8B2 and we do not have Q7C, but we do have Q47 fiber.

And the Q47 on the known head hair from the Defendant--

We do not have.

--was in fact a hair?

Yes.

So you have two Q47's. All right. The next one, Mr. Escobar.

All right. This is "Known fibers from knit hat and Nicole Simpson's dress."

I think the K47 is actually the known standard from the blue knit cap.

So K47 is incorrect on that.

No. That would be correct.

All right. Counsel, Mrs. Robertson advises me that Mr. Scholberg is on the phone and is advising the Court through Mrs. Robertson that there is some confusion as to the numbering and which photos he has and does not have. We are going to take a brief recess. I'm going to ask counsel to consult with Mr. Scholberg, get an inventory of what he had, what he didn't have, and let's get this clear. All right. We will stand in recess.