All right. Back on the record. Counsel, have we had the opportunity to clarify the photos, who has what photos?
Yes, your Honor. Mr. Scholberg confirms the correctness of the list. He called because he was concerned about why photographs were being confused at all. He thought there was confusion about photographs. But there is one other problem here which Mr. Morton pointed out. What they are calling K47 is actually a known fiber from what has previously been called Q47, that K47 on the FBI reports is in fact a standard from Collin Yamauchi, so it is actually mislabeled there.
Yes. Counsel is correct. It should read Q47, parenthesis, "Known." That is our fault. That is why I was explaining to the Court yesterday, you know, the labeling was not completed on these until yesterday afternoon and on some Jonathan informed me this board has not been corrected yet. As you can see, there are patches on them. We had to relabel a lot of things because they were incorrect because there were so many, which was part of the delay in getting this to the Court, so that will be relabeled if we are permitted to use it.
So then it is the K17 and K47, though, that we did not have which they call--I'm sorry. Which--well, we knew it as Q47, okay.
Your Honor, he was given a photograph of K14. He was not given the photographs of K9 and then on the--
We have the two Q3C's on the left and right side, your Honor, but not the electron microscopic photograph in the middle. That we never received. So in other words, neither of those electron microscopic photographs, K9 or the one that is Q3C in the middle, were ever disclosed.
Your Honor, Mr. Morton has also brought to my attention that the Q47 fiber we had is the fiber from the knit cap listed here, not the--not the--not what is listed as K47 on the previous board, which is really a known from a Q47, so we hadn't those photographs either. This is the only Q47 we did have.
We have the Q3C on the far left, but not the Q3C in the middle, which is the electron microscopic photograph of Q3C. On this board they are both labeled Q3C.
This is "Known cotton fiber from Ronald Goldman jeans, questioned cotton fibers from Ronald Goldman man's shirt."
Mr. Morton believes he didn't actually see this board either because it was being photographed. We don't have Q3A nor Q21.
Very briefly. Of the photographs on the boards, the ones that they complain of not having are all accompanied by photographs they do have and have had since September of `94. Q1 is on the same board as other photographs questioned hairs that were photographed that they did have. Q8C is again the same thing on the same board as photographs of hairs that they did get. Same thing for Q10, 13, 18 and 47, on the same board with photographs that they did get. Q8B2 and Q7C, same issue on the same board as photographs that they do have. With respect to the blue black cotton fiber that we heard so much screaming about, in fact yesterday, in fact they did have a photograph of that, Q23. They have photographs of Q23 which is on the board with other fibers--with--which is photographs that they do have on the same board with photographs they claim not to have. The issue here is that the Defense clearly knew as of September of `94 that photographs of the microscopic comparisons were taken. They had them in their possession and have had for, what is this now, ten months. So they were on notice that such photographs were taken. We decided to present them in--on the form of boards and presented them to them the day before. And now we hear there are some photographs that they do not have, they have had the opportunity to examine them. They have had the opportunity to photograph them. There is nothing else that could be done to provide them with discovery and time to examine it, but the bottom line here is that they were on notice that these photographs existed. And if they were concerned that they wanted to provide their own photographs, they certainly have had ample time to create them. And access, having had the evidence in their hands for at least three occasions, on three separate times with all of their experts and knowing that photographs had been taken by our experts, what stopped them from taking their own photographs? And how can they complain that there were some photographs that they didn't see on boards with photographs that they did see? All right. Now, you have seen them.
Counsel, you were just making some observations regarding the associations. Is that it?
I did want to point that out. But let me say this, your Honor: To preclude evidence that is important to the proof of the elements of the crime would unfairly punish not just the victims, but the People of the State of California. And I do point out to the Court the families of Ronald Goldman and Nicole Brown Simpson. To preclude that kind of evidence in a case, and it is important evidence, your Honor, not willfully withheld, not knowingly withheld, and the Court knows that, and even the Defense knows that, it has been turned over, turned over as soon as we found out about it, it penalizes the wrong party. If the Court feels that we have been remiss, then I would urge the Court to penalize us personally, or myself personally, but please don't, please don't penalize the proof of the case.
Your Honor, with regard to those last remarks of counsel, the District Attorney's office are the representatives of the People, as we all understand. They are representing the People, they are representing the victims, they are representing everybody. They represent O.J. They represent the innocent as well as the guilty. That is what justice is all about. And when they do something in this case, as they have done, they have to be held accountable. It is fine to make that kind of a speech, and the Court is going to have to weigh that. When your Honor recited what you would do in this case, you were mindful that that applied--you weren't just saying that applied to the Defense, it applied to both sides, so we can't carve out an exception for the People just because they want to say we messed this up and we don't want this to be to the detriment of our case. When the lawyer makes a calculated decision, and they are caught in that decision, they are held responsible for that and their case does suffer, because you see, it is not just the People, it is the jury, it is everything, it is justice, it is the Defendant and his right to a fair trial. And the only thing I wanted to say in response to what she indicated, you listened to us enough. Based upon the errors we have seen on this board, we want to look at the microscopic slides in addition to these photographs. I mean, we are not going to take their word for things, your Honor, and I think you can see that there are enough errors here that there are problems with regard to this and we just can't accept their word for what has happened. And we tried to point that out in the course of our remarks, so you have heard it, and I will submit it, and I have expressed to you how we feel.
Your Honor, I don't want you to be mislead. The errors are ours on the labeling; not Mr. Deedrick's.
KEY QUOTEI understand. All right. The Court has before it two particular issues; the late disclosure of photographs that the Prosecution hopes to offer before the jury, but also has before it the content of a report regarding investigation into the source of the carpet in the Bronco automobile which speaks to the relative rarity of that particular carpet--that particular formulation and color and date of manufacture. I will address the photographs first. The Court will overrule the objection to the photographs for the following reason: The Defense has had access to most of the photographs. None of the photographs that are in dispute depict items that other photographs of which do not similarly exist. The Defendant also had access on at least three occasions to each piece of the physical evidence that the photographs depict, so the objection on that basis will be overruled. The objection to the content of the report prepared by Mr. Deedrick regarding the source and rarity of the carpet fiber, that objection will be sustained. The Prosecution will be precluded from presenting any evidence that is contained in the report. All right. Let's have the jury.
May I just ask for one clarification, your Honor? With respect to agent Deedrick's conclusion that the Bronco fibers are consistent with what was contained in his report, is that admissible?
Your Honor, before those questions are posed, will counsel approach the bench so we don't have any misunderstanding on that when we get to that point, so there is clarity?
We hope, your Honor, but your Honor, with regard to--would the Court entertain our proposed jury instruction with regard to this delay and what has happened the last half day or so, as you have done in the past? Professor Uelmen is here, and rather than take the time now, we would like to be able to prove something to you as to what occasioned this delay.
Well, it would have been nice if you had asked before I invited the jury to rejoin us.
Let me suggest this: I had to hear what your Honor's ruling was going to be first. Professor Uelmen is here and we wanted to get this case underway. What I was going to suggest to you, if we draw up something will the Court entertain it or we can do it real fast right now. I think it is appropriate.
To preclude evidence that is important to the proof of the elements of the crime would unfairly punish not just the victims, but the People of the State of California.
When the lawyer makes a calculated decision, and they are caught in that decision, they are held responsible for that and their case does suffer, because you see, it is not just the People, it is the jury, it is everything, it is justice, it is the Defendant and his right to a fair trial.
Trust me, all of our antennas will be up.
Your Honor, I don't want you to be mislead. The errors are ours on the labeling; not Mr. Deedrick's.