GOOD AFTERNOON, COUNSEL. BACK ON THE RECORD IN THE SIMPSON MATTER. DEFENDANT IS PRESENT WITH COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. UELMEN, MR. BAILEY, THE PEOPLE ARE REPRESENTED BY MISS CLARK AND MISS LEWIS AND A PANOPLY OF OTHERS. ALL RIGHT. COUNSEL, WE HAVE THREE MATTERS ON FOR THIS AFTERNOON. WE FIRST HAVE THE PEOPLE'S MOTION TO COMPEL DISCOVERY OF DEFENSE MOTION, ET CETERA, ET CETERA. WE HAVE FURTHER PROCEEDINGS REGARDING REPORTS TO THE COURT BY DEFENSE CONCERNING COMPLETE DISCLOSURE OF ANY NOTES, TAPES, ET CETERA, ET CETERA, CONTINUATION OF OUR ROSA LOPEZ INQUIRY AND THEN WE HAVE CONTINUING CATCH-UP WITH REGARDS TO THE SCIENTIFIC TESTING AND DNA AND AN ARRAY OF OTHER ITEMS. LET'S PROCEED FIRST TO THE PEOPLE'S MOTION TO COMPEL DISCLOSURE. MISS LEWIS.

GOOD AFTERNOON, YOUR HONOR.

GOOD AFTERNOON, MISS LEWIS.

YOUR HONOR, THIS MOTION IS FOR SANCTIONS FOR THE DEFENSE FAILURE TO COMPLY WITH THIS COURT'S CRYSTAL CLEAR ORDER OF JANUARY 29TH WHICH ORDERED THE DEFENSE TO DISCLOSE THE REPORTS AND STATEMENTS OF A VARIETY OF EXPERTS. THE COURT'S ORDER WAS SO SPECIFIC THAT I WANT TO -- I WANT TO QUOTE FROM IT BECAUSE IT IS SUCH AN EGREGIOUS HAPPENING THAT THEY FAILED TO COMPLY IN ANY MANNER WITH IT. THE COURT --

ALL RIGHT. ARE YOU INDICATING THAT AS OF THIS MOMENT, SINCE THAT ORDER ACTUALLY JANUARY 30TH, YOU HAVE RECEIVED FROM THE DEFENSE --

ZERO.

-- NOTHING? ZERO.

THE FILING STAMP SAYS JANUARY 30TH.

ALL RIGHT. YOUR HONOR, THE COURT ORDERED -- THAT'S WELL OVER A MONTH NOW -- THE COURT ORDERED THE DEFENSE TO IMMEDIATELY -- AND THE COURT PUT THE WORD "IMMEDIATELY" IN BOLD TO HIGHLIGHT IT -- IMMEDIATELY TO DISCLOSE THE STATEMENTS AND REPORTS OF ANY EXPERT WITNESS TO BE CALLED AT TRIAL AND/OR THUS FAR MENTIONED IN DEFENSE COUNSEL'S OPENING STATEMENT, INCLUDING, BUT NOT LIMITED, TO DR. HENRY LEE, DR. LENORE WALKER, DR. GERALDINE BUTTS STAHLY, DR. MICHAEL BADEN, BADIN, I DON'T KNOW HOW TO PRONOUNCE IT -- MY APOLOGIES TO THE DOCTOR -- DR. KARY MULLIS, DR. JOHN GERDES, DR. BARBARA WOLF AND THE DOCTORS AND OTHER DEFENSE EXPERTS MENTIONED BY DEFENSE COUNSEL AT LOCATIONS THAT THE COURT CITED WITHIN THE REPORTER'S TRANSCRIPT TO MAKE IT EXACTLY CRYSTAL CLEAR WHAT THE COURT WAS ORDERING; AND THE COURT ALSO NOTED IN THAT SAME ORDER, ALONG WITH THAT: "THAT THE PRACTICE OF CONSULTING WITH EXPERT WITNESSES AND INSTRUCTING THEM TO REFRAIN FROM PRODUCING WRITTEN NOTES IS OFTEN VIEWED BY TRIAL COURTS WITH A CERTAIN SCEPTICISM AS A SUBTERFUGE TO CIRCUMVENT RECIPROCAL DISCOVERY OBLIGATIONS." AND THE COURT CITED A FEDERAL CASE. AND THE COURT SAID IN THAT ORDER: "IT SEEMS IMPLAUSIBLE THAT SUCH EXPERTS' STATEMENTS OR REPORTS ARE NOT PRESENTLY IN EXISTENCE, GIVEN THE COMPLEXITY OF THE CASE, THE PREEMINENCE OF THE EXPERTS INVOLVED, THE NUMBER OF ATTORNEYS INVOLVED AND THE COURT'S EXPERIENCE WITH THE PRESENTATION OF EXPERT WITNESSES." NOW, DESPITE THAT CRYSTAL CLEAR AND SPECIFIC ORDER DIRECTING THE DEFENSE TO PRODUCE THESE THINGS, YOUR HONOR, THEY HAVE PRODUCED ZERO, ABSOLUTELY NO REPORT, NO STATEMENT, NO NOTE OF ANY OF THE EXPERT WITNESSES THAT THE COURT ORDERED. IF DEFENSE COUNSEL HAD SOME PROBLEM WITH THE COURT'S ORDER, ITS REMEDIES ARE CLEAR. IT COULD HAVE BROUGHT -- THE DEFENSE COULD HAVE BROUGHT A MOTION TO RECONSIDER, IT COULD HAVE TAKEN A WRIT, FRANKLY. BUT IT WAS -- THE DEFENSE WAS OBLIGATED ONCE THE COURT MADE THAT ORDER TO PRODUCE THOSE DOCUMENTS. YOUR HONOR, I ALMOST HATE TO SAY THIS, BUT WE ARE WILLING TO ALLOW THE DEFENSE ONE LAST OPPORTUNITY. WE'RE ASKING THIS COURT TO ORDER THAT THOSE DOCUMENTS BE PRODUCED BY TOMORROW, BY 5:00 O'CLOCK TOMORROW OR TO PRECLUDE THOSE WITNESSES FROM BEING CALLED AT TRIAL. AND I THINK THE CASE LAW CERTAINLY JUSTIFIES IT. THE ORDER HAS BEEN IN EXISTENCE FOR OVER A MONTH. THE COURT WARNED, WITHIN THAT RULING, THAT THAT WAS STILL A SANCTION WHICH THE COURT WOULD CONSIDER IN THE FUTURE. AND THAT WOULD BE THE PRECLUSION OF THE CALLING OF WITNESSES BY THE DEFENSE. AND WE ARE ORDERING -- WE ARE ASKING THE COURT FOR AN ORDER FOR THAT VERY SANCTION ASSUMING THEY FAIL TO COMPLY IMMEDIATELY, AND IMMEDIATELY MEANS IMMEDIATELY, LIKE BY 5:00 O'CLOCK TOMORROW. THAT'S WHAT WE ARE REQUESTING. NOW, YOUR HONOR, IN FILING THIS MOTION, NOT ONLY DID WE SEEK TO COMPEL THE DEFENSE TO DO WHAT THE COURT HAS ORDERED THEM TO DO, WE ARE ALSO SEEKING IN THIS MOTION FOR THE NOTES OF THEIR EXPERT WITNESSES. THE COURT'S ORDER IN PARTICULAR WENT TO THE STATEMENTS AND REPORTS OF WITNESSES. THIS IS A DUAL MOTION ON OUR PART. WE'RE -- I'M GOING TO PROCEED IN THE OPTIMISTIC FASHION, THOUGH I REALLY HAVE LESS AND LESS BASIS TO BE OPTIMISTIC THAT THE DEFENSE WILL COMPLY WITH RECIPROCAL DISCOVERY. BUT I AM GOING TO PROCEED IN THE OPTIMISTIC HOPE THAT WE WILL INDEED GET WHAT WE ARE SUPPOSED TO FROM THEM AND THEY WILL NOT BE PRECLUDED FROM BEING CALLED AS WITNESSES AT TRIAL. SO IN THAT VEIN, I WANT TO TALK ABOUT THE CASE LAW WHICH ADDRESSES SPECIFICALLY THE PRODUCTION OF EXPERTS' NOTES BECAUSE THAT IS AN AREA WHERE THE STATUTE ITSELF DOES NOT SPECIFY NOTES; CONSEQUENTLY, THERE HAS HAD TO HAVE BEEN CASE LAW CONSTRUING WHETHER THE DISCOVERY STATUTE TO DETERMINE WHETHER INDEED EXPERTS NOTES ARE DISCOVERABLE.

ALL RIGHT. THE RECORD SHOULD REFLECT THAT WE'VE NOW BEEN JOINED BY MR. DOUGLAS. GOOD AFTERNOON, SIR.

THE FIRST TWO CASES, YOUR HONOR, I WANT TO BRING TO THE COURT'S ATTENTION, I DO SO ONLY BECAUSE, NUMBER ONE, THEY WERE BROUGHT TO THE ATTENTION BY THE DEFENSE IN THEIR RESPONSE BRIEF AND I WANT TO DISABUSE THE COURT OF ANY NOTION THAT THEY ARE CONTROLLING IN THE COURT'S RULING THAT WE'RE ASKING FOR THIS AFTERNOON. THE FIRST OF THOSE CASES WAS RODRIGUEZ VERSUS SUPERIOR COURT. IN THAT CASE, IT INVOLVED A PRETRIAL PROCEEDING WHERE A PSYCHOLOGIST WAS APPOINTED TO AID THE DEFENSE TO DETERMINE WHETHER ANY MENTAL DEFENSE COULD BE RAISED AT TRIAL. AND THE DEFENSE IN THAT CASE TURNED OVER THE STATEMENT, THE REPORT OF THE PSYCHOLOGIST WHO HAD MADE A REPORT AFTER INTERVIEWING THE DEFENDANT. WHAT THE DEFENSE DID IN THAT CASE WAS TO REDACT OR LEAVE OUT THE DEFENDANT'S STATEMENT TO THE PSYCHOLOGIST FROM THE REPORT. IN A WRIT PROCEEDING, THE COURT OF APPEAL HELD THAT INDEED THE ATTORNEY/CLIENT PRIVILEGE APPLIED TO THE DEFENDANT'S STATEMENTS ABOUT THE CRIME THEMSELVES AND THAT THEY NEED NOT BE DISCLOSED. SO THERE WERE TWO THINGS ABOUT THAT PARTICULAR OPINION, RODRIGUEZ. ONE IS THAT IT WAS A PRETRIAL PROCEEDING AND THAT WAS IMPORTANT TO THE COURT'S HOLDING IN THAT CASE, AND THE SECOND IS THAT THE DEFENDANT'S STATEMENT DEALT WITH THE CRIME ITSELF. AND THE COURT OF APPEAL ITSELF SAID IN THAT CASE THAT: "OUR PERSPECTIVE --" THIS IS DIRECTLY QUOTING -- "MIGHT BE DIFFERENT HAD PETITIONER," MEANING THE DEFENDANT, "VOLUNTARILY DISCLOSED THE PSYCHOLOGIST'S CONCLUSIONS AS TO DEFENDANT'S MENTAL STATUS AT THE TIME OF THE CRIME AND SAID CONCLUSIONS WERE BASED ON DEFENDANT'S VERSION OF EVENTS." THAT'S AT PAGE 1270.

SO EVEN THE COURT -- THAT COURT OF APPEAL IN THAT CASE, WHICH WAS PRETRIAL AND INVOLVING THE DEFENDANT'S STATEMENTS ABOUT THE CRIME ITSELF, RECOGNIZED THAT THERE MIGHT BE A SITUATION WHERE THE DEFENSE WOULD PUT THAT IN ISSUE AND IT WOULD BECOME DISCOVERABLE. THE SECOND OF THE FOUR BASIC IMPORTANT CASES IN THIS AREA IS SANDEFER VERSUS SUPERIOR COURT, ALSO CITED BY THE DEFENSE. NOW, IN THAT CASE, THE TRIAL COURT SUSPECTED THAT THE DEFENSE WAS GOING TO CALL A PARTICULAR EXPERT AS A WITNESS AT TRIAL AND ORDERED PRODUCTION ON -- OF DISCOVERY FROM THAT EXPERT EVEN THOUGH THE DEFENSE HAD NOT IDENTIFIED THAT EXPERT AS AN EXPERT THEY WERE GOING TO CALL AT TRIAL.

AND THAT WAS THE JUDGE'S, TRIAL COURT JUDGE'S GUESS OR OPINION THAT THAT WAS LIKELY TO HAPPEN, CORRECT?

EXACTLY. AND OF COURSE, THAT'S VASTLY DISTINGUISHABLE FROM THE SITUATION WE HAVE HERE WHERE NOT ONLY THESE WITNESSES, EXPERTS LISTED ON THE DEFENSE WITNESS LIST, BUT THEY ARE OF COURSE DESCRIBED IN THEIR TESTIMONY, DESCRIBED BY MR. COCHRAN IN OPENING STATEMENT. THE COURT OF APPEAL IN THAT SANDEFER CASE LATER SAID IN PURE DICTA THAT NOTES OF EXPERTS IN MOST CIRCUMSTANCES MIGHT GO BEYOND THE ITEMS DISCOVERABLE UNDER THE STATUTE. NOW, WE KNOW FOR A CERTAINTY THAT THAT IS PURE DICTA BECAUSE THE CASE THAT IS REALLY OF CRITICAL IMPORTANCE TO THE COURT IN THIS PROCEEDING RIGHT NOW, THE HINES VERSUS SUPERIOR COURT CASE, CALLED THAT DICTA; AND IN HINES, IT WAS DIVISION 1 OF THE 4TH DISTRICT COURT OF APPEAL, AND IN FACT, THE SAME THREE PANEL OF JUSTICES WHO DECIDED SANDEFER DECIDED HINES AND IN FACT THE AUTHOR IS THE SAME OF BOTH OPINIONS. IN HINES, THE ISSUE DEALT SPECIFICALLY THERE WITH DISCOVERY OF EXPERTS' NOTES AND THE DISTRICT ATTORNEY IN THAT CASE SOUGHT THE ORIGINAL DOCUMENTATION OF THE EXAMINATION DONE BY THE EXPERT WHO WOULD BE TESTIFYING; AND THE DISTRICT ATTORNEY URGED IN THAT CASE THAT THOSE NOTES -- THAT DOCUMENTATION OF THE EXAMINATION SHOULD NOT BE INSULATED FROM DISCOVERY SIMPLY BY THE EXPERTS SAYING THAT THEY WERE ONLY GOING TO BE PART OF HIS FINAL REPORT, THAT HE IS GOING TO FINISH WITH AND FINALLY HAVE ONE REPORT. THE HINES COURT AGREED WITH THE DISTRICT ATTORNEY IN THAT CASE, THE COURT OF APPEAL DID AND SAID: "THE RESULTS OF EXAMINATIONS, SCIENTIFIC TESTS, EXPERIMENTS OR COMPARISONS," WHICH IS THE LANGUAGE OF THE STATUTE IN 1054, "SHOULD INCLUDE THE ORIGINAL DOCUMENTATION OF THE EXAMINATIONS, TESTS, ET CETERA, ORIGINAL DOCUMENTATION, INCLUDING HANDWRITTEN NOTES, IF THAT BE THE CASE," AND I AM QUOTING FROM HINES, "WOULD SEEM OFTEN TO BE THE BEST EVIDENCE OF THE TEST, EXPERIMENT OR EXAMINATION. AN EXPERT SHOULD NOT BE PERMITTED TO INSULATE SUCH EVIDENCE FROM DISCOVERY BY REFINING, RETYPING OR OTHERWISE REDUCING THE ORIGINAL DOCUMENTATION TO SOME OTHER FORM." THAT'S AT PAGE 1822 OF THE HINES OPINION. AND THE HINES COURT FURTHER EXPLAINED WHAT IT MEANT BY NOTES DOCUMENTING. IT SAID THAT THE DEFENSE WAS REQUIRED TO TURN OVER FACTUAL DETERMINATIONS OF THE EXPERTS FROM OBSERVATIONS MADE DURING AN EXAMINATION. SO WHAT HINES HELD IN PARTICULAR AND WHAT'S CRITICAL TO THIS CASE IS THAT THE NOTES OF THE OBSERVATIONS OF THE TESTING MUST BE TURNED OVER. WHAT HINES -- WHAT HINES HELD IS THAT A THIRD PARTY -- IT ALSO HELD THAT A THIRD PARTY EXPERT'S NOTES OR CONCLUSIONS OR OPINIONS WERE NOT DISCOVERABLE, MEANING THAT AN EXPERT WHOM THE TESTIFYING EXPERT RELIED UPON AS DISTINGUISHED FROM THE TESTIFYING EXPERT. AND ALL THESE PEOPLE INCLUDED IN THE COURT'S ORDER ARE THE TESTIFYING EXPERTS. IT ALSO HELD THAT INTERIM REPORTS EXPRESSING CONCLUSIONS OR OPINIONS, INTERIM CONCLUSIONS OR OPINIONS OF THE TESTIFYING EXPERT ARE NOT DISCOVERABLE. SO THE HINES COURT DID CARVE OUT SPECIFICALLY EXACTLY WHAT CAN BE DISCOVERED AND WHAT HAS TO BE DISCOVERED MUST BE TURNED OVER TO THE PROSECUTION; AND THAT IS THE EXPERTS' NOTES REGARDING THE FACTUAL OBSERVATIONS AND TESTING OF THAT EXPERT. WE KNOW IN THIS CASE, YOUR HONOR, I BELIEVE IT'S GOING TO BE ADDRESSED MORE LATER, A LITTLE LATER THIS AFTERNOON BY MY COLLEAGUES THAT THERE HAVE BEEN LOTS OF SUCH NOTES TAKEN. I BELIEVE PROSECUTION REPRESENTATIVES HAVE BEEN PRESENT WHEN THE DEFENSE EXPERTS HAVE GONE THROUGH THE PROSECUTION EVIDENCE ON NUMEROUS OCCASIONS AND MADE SUCH NOTES AND SO FORTH. ALL OF THOSE ARE DISCOVERABLE AND THAT'S WHAT HINES HELD LONG BEFORE JANUARY. THESE CASES ARE NOT BRAND NEW. THESE ARE CASES WHICH THE DEFENSE HAS CHARGED OF KNOWLEDGE OF. THE -- FINALLY, YOUR HONOR, THE HINES CASE IS CRITICAL BECAUSE IT GOES SPECIFICALLY AND DIRECTLY TO ALL OF THE EXPERTS AT ISSUE IN THIS CASE AND IT GOES SPECIFICALLY TO ALL OF THOSE EXPERTS' NOTES OF OBSERVATIONS, TESTING AND SO FORTH. NOW, IN ADDITION TO THE HINES CASE IS THE MORE -- THE MOST RECENT CASE IN THIS FOUR CASES, AND THAT'S WOODS VERSUS SUPERIOR COURT, WHICH DIVISION 1 OF THE 4TH DISTRICT COURT OF APPEAL AGAIN DECIDED THAT, SLIGHTLY DIFFERENT MAKEUP OF THE PANEL, BUT IT SEEMS TO HAVE BECOME DIVISION 1 OF 4TH DISTRICT'S EXPERTISE IN THIS PARTICULAR AREA.

SAME TRIAL JUDGE AS THE SANDEFER CASE.

WAS IT THE SAME TRIAL JUDGE? I DIDN'T NOTICE. THANK YOU. THE COURT OF APPEAL FIRST OF COURSE REITERATED ITS HOLDING IN THE HINES CASE THAT INDEED THE EXPERTS' NOTES OF FACTUAL DETERMINATIONS FROM OBSERVATIONS THE EXPERT MAKES MUST BE DISCLOSED. AND THEN IT WENT ON TO DECIDE ANOTHER ISSUE. AND THE ISSUE THAT THE COURT OF APPEAL DECIDED IN WOODS IS PARTICULARLY DIRECTLY APPLICABLE TO THE FORTHCOMING TESTIMONY OF DR. LENORE WALKER WHO IS A DEFENSE DOMESTIC VIOLENCE EXPERT. THE COURT OF APPEAL SPECIFICALLY HELD IN WOODS THAT THE UNDERLYING DATA FROM STANDARDIZED PSYCHOLOGICAL AND INTELLIGENT TESTS -- INTELLIGENCE TESTS MUST BE DISCLOSED. AND THEIR RATIONALE SPEAKS ELOQUENTLY. IT SAYS:

"REQUIRING PRETRIAL DISCLOSURE OF THE RAW RESULTS OF STANDARDIZED PSYCHOLOGICAL AND INTELLIGENCE TESTS ADMINISTERED AND RELIED UPON BY AN EXPERT THE DEFENSE INTENDS TO CALL AT TRIAL ALLOWS ACCESS TO INFORMATION NECESSARY TO PREPARE THE CASE, REDUCES THE CHANCE OF SURPRISE AT TRIAL, FURTHERS THE ATTAINMENT OF TRUTH AND LESSENS THE RISK OF A JUDGMENT BASED ON INCOMPLETE TESTIMONY. IN SHORT, IT ADVANCES THE STATUTORY GOALS," CLOSED QUOTE. AND IN OPENING STATEMENT IN THIS CASE, MR. COCHRAN DID TELL THE JURY THAT DR. WALKER WOULD TESTIFY. AND I'LL QUOTE HERE: "AND YOU WILL HEAR ULTIMATELY ABOUT THE BATTERY OF TESTS AND I THINK YOU WILL FIND THAT SHE WILL SAY THAT IN LOOKING AT O.J. SIMPSON AND INTERVIEWING HIM, IN LOOKING AT HIM AT THIS POINT, SHE FINDS NO EVIDENCE OF ANTI-SOCIAL PERSONALITY DISORDER AND I THINK YOU WILL FIND THAT BECOMES VERY IMPORTANT IN THIS CASE."

SO WHAT MR. COCHRAN DID BY THOSE REVELATIONS TO THE JURY IN OPENING STATEMENT IS TO MAKE IT ABSOLUTELY CLEAR, HIT THE NAIL ON THE HEAD AS FAR AS THE DEFENSE OBLIGATION TO DISCLOSE ALL OF THOSE NOTES AND ALL OF THE TESTING, THE TESTING INSTRUMENTS, THE RAW DATA, ALL OF THAT THAT HAS BEEN GARNERED BY DR. LENORE WALKER, AND WE HAVE NOT AS OF YESTERDAY WHEN MR. SCOTT GORDON OF OUR OFFICE, WHEN I SAW HIM LAST -- HE HAD TO BE OUT OF TOWN THE REST OF THIS WEEK -- HE HADN'T RECEIVED ANYTHING. YET THE COURT OF APPEAL IN WOODS SPECIFICALLY HELD IN THAT REGARD THAT THAT IS MANDATED. ALL OF THAT TESTING MATERIAL IS MANDATED. AND HERE IT IS CRYSTAL CLEAR THAT THE DEFENSE IS GOING TO BE USING THAT EXPERT AND THOSE RESULTS AT TRIAL BECAUSE MR. COCHRAN TOLD THE JURY SO. SO CONSEQUENTLY, YOUR HONOR, UNDER WOODS, ALL OF THE MATERIAL MUST BE PRODUCED TO THE PROSECUTION. WE'VE BEEN WAITING FOR IT FOR OVER A MONTH NOW. WE KNOW IT TO EXIST. DR. LENORE WALKER WAS ON TELEVISION SHOWS TALKING ABOUT HAVING ALREADY INTERVIEWED THE DEFENDANT FOR SOME 40 HOURS BACK -- I THINK IT'S BEEN A COUPLE OF MONTHS AGO BACK AT THAT TIME. AND THE COURT OF APPEAL IN WOODS SPECIFICALLY HELD THAT THE DEFENDANT'S RESPONSES TO THESE TYPES OF INTERVIEWS FROM A PSYCHOLOGIST AND THE ARRAY AND THE BATTERY OF TESTS, ALL OF THAT WAS DISCLOSABLE. THERE IS NO ATTORNEY-CLIENT PRIVILEGE, THERE IS NO FIFTH AMENDMENT, THERE ARE NO PRIVILEGES APPLICABLE, WORK PRODUCT, ANY OF THAT, ONCE IT BECAME APPARENT THAT EXPERT IS GOING TO TESTIFY AT TRIAL. SO THE DEFENSE CANNOT CLAIM CONFUSION IN ANY MANNER WITH REGARD TO THEIR OBLIGATION TO TURN OVER THOSE NOTES. YET WE HAVE SEEN NONE OF THAT. AND, YOUR HONOR, FRANKLY, WE'RE FRUSTRATED. WE DO NOT KNOW WHAT ELSE TO DO BUT TO ASK THIS COURT TO PRECLUDE THE DEFENSE FROM CALLING ANY OF THESE PEOPLE AS EXPERTS. AND FRANKLY, THE RECORD IS SO WONDERFUL IN THIS CASE ON BEHALF OF THE PROSECUTION, THERE'S NOT A COURT OF APPEAL ANYWHERE THAT WOULD POSSIBLY CONSIDER OVERTURNING THIS COURT WERE IT TO MAKE THAT RULING BECAUSE THE COURT HAS ALREADY ORDERED IT A MONTH AGO AND THE COURT -- WE'RE ASKING YOUR HONOR THAT THE COURT GIVE IT UNTIL -- GIVE THE DEFENSE UNTIL TOMORROW AFTERNOON ONE FURTHER, ONE LAST OPPORTUNITY. I'M VERY SERIOUS, YOUR HONOR. I REALLY MEAN THAT.

NO. THE ONLY -- YOU KNOW, MY ONLY REACTION IS, I WAS -- AS YOU SAID, THERE IS NO COURT OF APPEAL ANYWHERE WHO WOULD CONSIDER OVERTURNING THIS MATTER ON A WRIT.

WELL, HAVING PRACTICED APPELLATE --

AND AS I WAS GOING THROUGH THE PERSONALITIES, I --

WELL, HAVING PRACTICED APPELLATE LAW EARLIER IN MY CAREER IN THE CIVIL ARENA, I -- PERHAPS A BLANKET STATEMENT WAS A LITTLE TOO BLANKET. BUT CERTAINLY YOU KNOW WHAT I AM SAYING, YOUR HONOR; AND THAT IS THAT WE HAVE A VERY STRONG RECORD IN THIS CASE TO ORDER THAT ULTIMATE SANCTION WHICH THE CASE LAW DOES SAY IS AN ULTIMATE SANCTION. BUT HERE WE HAVE THE BEST RECORD THAT THAT -- ALMOST THAT WE COULD HAVE FRANKLY.

IN ASKING FOR THE ULTIMATE SANCTION THOUGH, WHICH IS PRECLUSION, DON'T YOU THINK THERE ARE SOME MEASURES THAT I COULD TAKE SHORT OF THAT?

YOUR HONOR --

THE PROBLEM IS, THIS IS A -- THIS IS A -- ASSUMING YOUR ARGUMENT TO BE CORRECT FACTUALLY, ISN'T THIS A FAILURE OF THE ATTORNEYS RATHER THAN THE CLIENT?

IT'S ALWAYS A FAILURE OF THE ATTORNEYS, YOUR HONOR, WHEN IT COMES TO THE AREA OF DISCOVERY. IT'S -- I'M NOT SURE HOW THE COURT IS VIEWING THAT AS A DISTINCTION IN THIS SITUATION. THIS -- WE'RE TALKING HERE ABOUT ATTORNEYS' OBLIGATIONS UNDER THE LAW. AND I BELIEVE IT WAS THE JACKSON CASE, THAT BECAUSE OF THE ATTORNEY'S FAILURE TO DISCLOSE OR REPORT A MATERIAL WITNESS, THEY DID PRECLUDE THE DEFENSE -- THE DEFENDANT FROM CALLING THAT WITNESS AT TRIAL. SO I DON'T THINK THERE'S A DISTINCTION HERE TO BE MADE, YOUR HONOR, BETWEEN THE DEFENDANT HIMSELF AND HIS ATTORNEYS; AND HE CERTAINLY HAS AN IMPRESSIVE ARRAY OF ATTORNEYS, THOUGH FRANKLY IN THE AREA OF DISCOVERY, THEY ARE NOT MERELY AS IMPRESSIVE AS THEY ONCE MIGHT HAVE BEEN CONSIDERED BECAUSE WE HAVE SEEN REPEATED FAILURES OVER AND OVER AGAIN, YOU KNOW, FIGURATIVELY, SLAPPING THIS COURT IN THE FACE FRANKLY WHEN IT COMES TO RECIPROCAL DISCOVERY. THEY'VE DONE IT REPEATEDLY. AND MOST RECENTLY, WE KNOW ABOUT WHAT HAPPENED YESTERDAY OR THE DAY BEFORE YESTERDAY I BELIEVE WITH REGARD TO, YOU KNOW, MR. PAVELIC'S SUDDEN REVELATION ONCE HE WAS PLACED UNDER OATH WITH THE EXISTENCE OF THE TAPED INTERVIEW SO TO SPEAK OR HIS TAPED MONOLOGUE VIRTUALLY OF ROSA LOPEZ. AND WE'LL BE TALKING ABOUT THAT FURTHER IN THE SANCTIONS THAT WE WANT IN THAT REGARD FURTHER. SO I DON'T WANT TO GET INTO THAT PARTICULAR TOPIC. BUT THE POINT BEING, THE DEFENSE HAS REPEATEDLY, REPEATEDLY THUMBED THEIR NOSE AT THE COURT. AND IT'S ONLY GOING TO TAKE SOME SUBSTANTIAL SANCTION FOR THEM NOT TO CONTINUE TO DO THAT, YOUR HONOR.

MR. COCHRAN, YOU KNOW, HE CAN COMPLAIN ABOUT A TWO-DAY DELAY TO ALLOW US TO PREPARE TO CROSS-EXAMINE ROSA LOPEZ, BUT THAT'S NOT A SANCTION. THAT'S REALLY NOT ANYTHING THAT CAUSES THE DEFENSE TO TAKE -- WAKE UP AND TAKE NOTICE THAT MAYBE THEY HAVE TO COMPLY WITH THE LAW. IN FACT, IT DOES, IT PUNISHES US, YOUR HONOR, IT PUNISHES THE PROSECUTION WHEN WE HAVE TO SCRAMBLE TO GET READY. AND MISS CLARK WAS --

MISS CLARK MADE THE POINT YESTERDAY AGAIN THAT IT DOES, IT INTERRUPTS OUR CASE. YOU KNOW, WHAT'S HAPPENING NOW, IT'S NOT JUST THAT, OKAY, WE HAVE TWO DAYS TO PREPARE FOR ADDITIONAL CROSS-EXAMINATION AND TO RESTRUCTURE THE CROSS-EXAMINATION WITH REGARD TO ROSA LOPEZ. WHAT IT DOES IS FURTHER INTERRUPT OUR CASE IN CHIEF. I DON'T EVEN REMEMBER THE LAST TIME DETECTIVE LANGE TESTIFIED IT'S BEEN SO LONG.

WHO?

EXACTLY.

OKAY.

SO THERE IS A CONSEQUENCE OUT OF THEIR MISCONDUCT WHICH IS ONLY HURTING THE PROSECUTION AND HAS NOT SO FAR HAD ANY SIGNIFICANT EFFECT ON THE DEFENSE AND CERTAINLY HAS NOT DONE ANYTHING THAT WOULD CAUSE THEM TO STAND UP AND TAKE NOTICE THAT THIS COURT MEANS BUSINESS.

THEN HOW DO I DEAL WITH THE DEFENSE ARGUMENT WHICH IS LAID OUT IN THEIR RESPONSE TO YOUR MOTION, THAT ALTHOUGH -- LET'S TAKE, FOR EXAMPLE, WITH REGARDS TO DR. WALKER. I MEAN, CLEARLY THERE'S AN INDICATION IN OPENING STATEMENT THAT CERTAIN TESTS HAVE BEEN CONDUCTED, A BATTERY OF TESTS IS REFERRED TO. LET'S ASSUME THAT TO BE TRUE. HOWEVER, WITH REGARDS TO THE OTHER EXPERTS, THERE IS AN ARGUMENT FROM THE DEFENSE SIDE, FOR EXAMPLE, AS TO SOME OF THE FORENSIC EXPERTS, SOME OF THE SCIENTIFIC EXPERTS, THAT THEIR TESTIMONY AND WHAT THEY WILL BE CALLED TO TESTIFY TO CANNOT BE ACCURATELY FRAMED UNTIL THE PROSECUTION'S CASE HAS BEEN PRESENTED OR IT'S A CLEAR PICTURE AS TO WHAT IS GOING TO BE PRESENTED. HOW DO YOU RESPOND TO THAT?

YOUR HONOR, THERE IS NO CASE LAW -- THERE IS NO CASE LAW TO SUPPORT THAT POSITION AND ALL THE CASE LAW IS TO THE CONTRARY. ONCE THAT THEY TALK IN OPENING STATEMENT ABOUT THESE EXPERTS AND THEIR TESTIMONY EVEN IN GENERAL TERMS, THEY ARE OBLIGATED TO PRODUCE IT.

IN FACT, THE -- I THINK IT WAS THE WOODS COURT THAT -- WHERE THAT ISSUE, A SIMILAR ISSUE WAS RAISED. AND IN THAT CASE, THE COURT OF APPEALS SAID: "THE DEFENSE PROTESTS THE VICE OF ACCELERATION IN THAT -- IS THAT DISCLOSURE MUST BE MADE SOLELY TO PRESERVE THE OPTION OF CALLING THE WITNESS EVEN THOUGH NOT ALL REASONABLY ANTICIPATED WITNESSES ARE ACTUALLY CALLED." SO THAT'S SIMILAR; THAT EVEN THOUGH THEY DON'T EXACTLY KNOW EXACTLY WHAT THEIR EXPERT MAY BE SAYING. AND THE COURT OF APPEAL SAID: "WE SYMPATHIZE WITH THEIR POSITION, BUT CAN NOT ACCEPT THE ARGUMENT AS A GENERAL PROPOSITION WITHOUT DOING DAMAGE TO THE STATUTORY OBJECTIVES OF ASCERTAINING THE TRUTH, SAVING TIME IN TRIAL, AVOIDING THE NECESSITY OF POSTPONEMENTS AND PROTECTING AGAINST UNDUE DELAY." AND THEY SAID THERE ESPECIALLY TRUE IN CASES OF PSYCHOLOGICAL CHARACTER EVIDENCE BECAUSE THAT'S WHAT THE WOODS' COURT SPECIFICALLY WAS ADDRESSING. BUT THE PRINCIPAL APPLIES TO ALL OF THE EXPERTS. YOUR HONOR, THE DEFENSE CANNOT HIDE BEHIND THAT CLAIM. THERE'S NO CASE LAW TO SUPPORT IT AND ALL THE CASE LAW IS TO THE CONTRARY. IF THEY END UP NOT CALLING THOSE EXPERTS OF IF THEIR TESTIMONY DIFFERS, THAT IS TOO DARN BAD. MR. COCHRAN ELECTED TO MAKE AN OPENING STATEMENT, YOUR HONOR. HE ELECTED TO TALK ABOUT THESE EXPERTS IN HIS OPENING STATEMENT AND THAT ELECTION REQUIRES THEM TO DISCLOSE THE DISCOVERY THAT THE CASE LAW MANDATES. MAY I HAVE JUST A MOMENT?

CERTAINLY.

THAT'S RIGHT. EXACTLY. I MEAN, YOUR HONOR, WHEN MR. COCHRAN WAS TALKING ABOUT ALL OF THESE EXPERTS DURING OPENING STATEMENT, HE HAD REASON, HE HAD INFORMATION UPON WHICH TO BASE HIS COMMENTS TO THE JURY. HE DIDN'T MAKE IT UP OUT OF THIN AIR. HE HAD INFORMATION FROM HIS EXPERTS AS TO WHAT HE FELT HE MIGHT BE ABLE TO SHOW OR WOULD BE ABLE TO SHOW TO THE JURY. AND WE KNOW IN THIS CASE, AS MY COLLEAGUES WILL ELABORATE ON, THAT THE DEFENSE HAS REPEATEDLY EXAMINED THE PROSECUTION EVIDENCE AND TAKEN NOTES OF IT REPEATEDLY. NOW, WHEN THEY HAVE DONE THAT AND WHEN DR. BADEN OR BADIN -- I WOULD LIKE TO PRONOUNCE IT CORRECTLY. AT ANY RATE, WHEN THESE VARIOUS FORENSIC EXPERTS WHO THEY MENTIONED, WHO THEY LIST IN THEIR OPENING STATEMENT, WHO THEY TALK ABOUT IN THEIR OPENING STATEMENT AND THEIR TESTIMONY, WHEN THEY DO THAT, THEY'RE OBLIGATED TO DISCLOSE THOSE NOTES THAT THOSE EXPERTS HAVE MADE IN CONJUNCTION WITH THE HINES CASE. THAT'S EXACTLY WHAT HINES HOLDS. SO WE NO LONGER HAVE A SITUATION, YOUR HONOR, IN ANY RESPECT WHERE THE DEFENSE CAN HOLD ON, HOLD BACK IN TERMS OF GAMESMANSHIP. THEY ARE NOT REQUIRED TO DISCLOSE TO US EVIDENCE THAT IS -- THAT INCRIMINATES THE DEFENDANT. THAT'S OBVIOUSLY ALREADY TAKEN CARE OF BECAUSE THEY WOULD NOT BE RELYING ON THOSE EXPERTS OR TALKING ABOUT THOSE EXPERTS TESTIFYING DURING OPENING STATEMENT IN FRONT OF THE JURY IF THOSE EXPERTS WERE GOING TO TALK ABOUT INCRIMINATING EVIDENCE TO THE DEFENDANT. SO WHEN IT COMES TO THE PROTECTION OF THE DEFENDANT'S RIGHTS AGAINST SELF-INCRIMINATION, THE STATUTES AND THE CASE LAW PRESUPPOSE THAT AND TAKE THAT INTO CONSIDERATION. SO THERE IS NO -- THERE IS NO BASIS.

THAT'S WHY THERE IS NO CASE LAW TO SUPPORT THE PROPOSITION THAT EVEN IF -- THAT BECAUSE OF THE POSSIBILITY THAT THEY MAY CHANGE THEIR MIND AT SOME POINT LATER ON OR DETERMINE EXACTLY WHAT THE NATURE OF THE TESTIMONY IS GOING TO BE IN SPECIFIC TERMS LATER ON AFTER THE PROSECUTION'S CASE IN CHIEF, THERE IS NO CASE TO SUPPORT THAT FOR THAT REASON, THEY CAN BACK UP AND HOLD BACK ON THE DISCLOSURE OF WHAT THEY TALKED ABOUT DURING OPENING STATEMENT.

ALL RIGHT. THANK YOU, MISS LEWIS. ALL RIGHT. MR. UELMEN.

THANK YOU, YOUR HONOR. LET ME INDICATE AT THE OUTSET THAT THE DEFENSE POSITION QUITE CLEARLY IS THAT THERE ARE NO REPORTS THAT PENAL CODE SECTION 1054.3 REQUIRES THE DEFENSE TO PRODUCE AT THIS TIME. AND I KNOW THAT YOUR HONOR'S ORDER DID NOT INTEND TO ORDER ANYTHING THAT SECTION 1054.3 DID NOT AUTHORIZE, AND THIS MOTION REALLY GIVES US THE FIRST OPPORTUNITY TO GET SOME JUDICIAL GUIDANCE WITH RESPECT TO THAT ISSUE BECAUSE I THINK THE COURT MUST RECOGNIZE AND THE PROSECUTION MUST RECOGNIZE AS WELL THAT SECTION 1054.3 CREATES A REAL DILEMMA FOR DEFENSE LAWYERS. OUR OBLIGATION TO PRODUCE RECIPROCAL DISCOVERY IS A CREATURE OF STATUTE. IT IS LIMITED BY THE STATUTE. IT IS AN EXCEPTION TO THE PREVAILING PRINCIPAL THAT THE DEFENSE SHOULD NOT -- IN FACT, IT WOULD BE UNETHICAL FOR US TO GIVE TO THE PROSECUTION EVIDENCE THAT WOULD BOLSTER THEIR CASE, THAT WOULD STRENGTHEN THEIR POSITION IN TERMS OF PROVING THEIR CASE AGAINST OUR CLIENT. AND THE WHOLE PREMISE OF THE RECIPROCAL DISCOVERY LAW IS THAT IT DOES NOT REQUIRE US TO DO THAT BECAUSE THE ONLY THING WE HAVE TO TURN OVER IS THAT EVIDENCE THAT WE ARE GOING TO PRESENT AS PART OF OUR CASE IN CHIEF. THE WHOLE IDEA IS THAT THIS GIVES THEM SOME SORT OF PREVIEW OF WHAT IS GOING TO BE COMING IN OUR CASE IN CHIEF. BUT IT DOES NOT REQUIRE THAT WE WAIVE ANY PRIVILEGES THAT MAY EXIST TO GIVE THEM EVIDENCE THAT THEY CAN THEN TURN AROUND AND USE IN THEIR CASE IN CHIEF TO STRENGTHEN THE CASE AGAINST OUR CLIENT. NOW, PART OF THE PROBLEM WITH THE MOTION FILED BY THE PROSECUTION HERE IS THAT THE BREATH OF THE DEMAND EXCEEDS THE GRASP OF THE STATUTE. THEY HAVE REQUESTED THIS COURT TO RULE THAT WE SHOULD BE PRECLUDED FROM CALLING AS WITNESSES IN -- IN ANY PHASE OF THE TRIAL ANY EXPERT FOR WHOM WE FAIL TO TURN OVER ALL STATEMENTS AND NOTES WHICH EXIST TO DATE. AND THE SHORT ANSWER OF COURSE IS THAT SECTION 1054.3 DOES NOT REQUIRE THAT. SECTION 1054.3 SAYS THAT: "THE DEFENDANT SHALL DISCLOSE TO THE PROSECUTING ATTORNEY THE NAMES AND ADDRESS OF PERSONS OTHER THAN THE DEFENDANT THAT HE INTENDS TO CALL AS WITNESSES AT THE TRIAL TOGETHER WITH WRITTEN OR RECORDED STATEMENTS OF THOSE PERSONS, REPORTS OF THE STATEMENTS OF THOSE PERSONS INCLUDING ANY REPORTS OR STATEMENTS OF EXPERTS MADE IN CONNECTION WITH THE CASE AND INCLUDING THE RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS, SCIENTIFIC TESTS, EXPERIMENTS OR COMPARISONS WHICH THE DEFENDANT INTENDS TO OFFER IN EVIDENCE AT TRIAL." NOW, THERE IS NO MENTION IN THAT STATUTE OF NOTES. AND THAT'S THE WHOLE POINT OF WHAT THE COURT WAS SAYING IN SANDEFER. NOW, IN SANDEFER, THE COURT SAID: "A DISCOVERY ORDER THAT BROADLY ORDERS THE PRODUCTION OF NOTES IS OVERBROAD. THE NEW PROVISIONS OF THE ACT ARE EXCLUSIVE IN THE SENSE THAT NO DISCOVERY SHALL OCCUR EXCEPT AS PROVIDED BY THIS CHAPTER."

AND IT QUOTES A STATUTE AND SAYS: "WE ARE OF THE OPINION THAT AN ORDER REQUIRING THE EXPERT TO PRODUCE HIS NOTES IN MOST CIRCUMSTANCES WOULD GO BEYOND THE SPECIFICATION OF DISCOVERABLE ITEMS SET FORTH IN THE STATUTE." NOW, WHAT THE PROSECUTION IS SEIZING ON IS THE ONE CIRCUMSTANCE THAT THE COURT'S HAVE CARVED OUT WHERE THEY HAVE SAID NOTES MAY BE PRODUCIBLE; AND THAT IS WHERE THE NOTES THEMSELVES ARE THE RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS, SCIENTIFIC TESTS, EXPERIMENTS OR COMPARISONS. AND THAT IS MADE CRYSTAL CLEAR I THINK IN THE WOODS CASE, WHICH IS THE CHIEF CASE THAT THE PEOPLE ARE RELYING ON. IN THE WOODS CASE, THE COURT NOTED THAT THERE WAS NO REQUEST FOR RANDOM NOTES, INTERVIEW NOTES, DRAFTS, INTERIM CONCLUSIONS, AND THEY SAID: "UNLIKE OUR EXPERTS' NOTES DECISIONS," REFERRING SPECIFICALLY TO SANDEFER AND HINES, "THE CASE BEFORE US INVOLVES ONLY THE ORIGINAL DOCUMENTATION OF EXAMINATIONS, THE UNDERLYING RAW DATA FROM STANDARDIZED PSYCHOLOGICAL AND INTELLIGENCE TESTS." NOW, I THINK WHAT THE COURT IS SAYING IS THAT WHERE THE TEST ITSELF INVOLVES REPORTING THE RESULTS BY MEANS OF NOTES. FOR EXAMPLE, GIVING SOMEONE A WECHSLER TEST AND THEN NOTING WHAT THEIR RESPONSE IS TO SEEING A PARTICULAR INK BLOT. OBVIOUSLY THE NOTES WOULD BE THE RESULTS OF THE TEST. BUT RANDOM NOTES WHERE EXPERTS ARE LOOKING AT PHYSICAL EVIDENCE AND MAKING NOTATIONS DOES NOT COME WITHIN THAT DEFINITION OF NOTES AND IT SIMPLY DOES NOT COME WITHIN THE COMMAND OF SECTION 1054.3. SO WE BELIEVE THAT ANY ORDER REQUIRING THE DISGORGEMENT OF ALL NOTES WOULD SIMPLY BE OVERBROAD. THE STATUTE DOES NOT REQUIRE THE PRODUCTION OF THAT MATERIAL EVEN THOUGH THAT MATERIAL MAY HAVE TO BE PRODUCED AT THE TIME THE WITNESS TESTIFIES ON CROSS-EXAMINATION. THE NOTES MAY HAVE TO BE AVAILABLE. THE NOTES CAN BE USED TO CROSS-EXAMINE FROM, BUT IN TERMS OF THE STATUTORY OBLIGATION FOR PRETRIAL OR PRECALLING OF THE WITNESS, DISCLOSURE OF THIS MATERIAL, THE SANDEFER COURT IS CORRECT. YOU CAN'T ORDER SOMETHING THAT IS NOT SPECIFIED IN THE STATUTE AND THE STATUTE DOES NOT SPECIFY NOTES. NOW, WITH RESPECT TO REPORTS, WE BELIEVE THAT THE REPORTS THAT ARE IN ISSUE HERE FALL INTO THREE CATEGORIES. AND I WOULD LIKE TO ADDRESS EACH OF THESE CATEGORIES IN SOME DETAIL. FIRST, THERE ARE REPORTS IN EXISTENCE WHERE WE HAVE NOT YET DETERMINED THE SCOPE OF THE TESTIMONY TO BE PRESENTED WITH RESPECT TO THE WITNESSES WHO PREPARED THOSE REPORTS. SECONDLY, WE HAVE REPORTS THAT ARE IN PREPARATION, BUT THE SCOPE OF THE REPORT ITSELF AS WELL AS THE SCOPE OF THE TESTIMONY TO BE PRESENTED BY THE EXPERT IS YET TO BE DETERMINED. AND THEN FINALLY, WE HAVE EXPERT WITNESSES WHO HAVE NO REPORTS IN EXISTENCE OR IN PREPARATION SIMPLY BECAUSE WE HAVE NOT ASKED THEM TO PREPARE REPORTS. NOW, I WOULD LIKE TO DISCUSS THE ISSUES THAT EACH OF THESE CATEGORIES RAISES BECAUSE THERE ARE SEPARATE ISSUES WITH RESPECT TO EACH. BUT THE MOST RELEVANT AUTHORITY CUTS ACROSS ALL THREE OF THESE CATEGORIES, AND THAT IS THE CASE OF RODRIGUEZ VERSUS SUPERIOR COURT. IN RODRIGUEZ, WHICH I THINK IS THE MOST RELEVANT PRECEDENT THAT WE HAVE IN TERMS OF THE APPLICATION OF RECIPROCAL DISCOVERY TO EXPERTS -- AND THE COURT REALLY PROVIDES SOME VERY SIGNIFICANT GUIDANCE FOR DEFENSE LAWYERS IN THE COURSE OF DEALING WITH THE SITUATION PRESENTED IN RODRIGUEZ. IN THAT SITUATION, THE EXPERT WITNESS HAD BEEN DESIGNATED. THERE'S NO QUESTION BUT THAT THE DEFENDANT PROVIDED NOTICE THAT THEY WERE GOING TO CALL DR. JOSE LA CALLEY AS A WITNESS. THE PROBLEM THAT AROSE IN RODRIGUEZ IS THAT DR. LA CALLEY HAD EVIDENCE WITH RESPECT TO TWO DIFFERENT ISSUES. FIRST, HE WAS GOING TO OFFER EVIDENCE WITH RESPECT TO THE VOLUNTARINESS OF A STATEMENT MADE BY THE DEFENDANT IN AN IN LIMINE MOTION TO SUPPRESS THAT STATEMENT. AND SECONDLY, HE ALSO EXAMINED THE DEFENDANT WITH RESPECT TO THE CIRCUMSTANCES OF THE OFFENSE. AND THE DEFENSE DECIDED THAT THEY WERE ONLY GOING TO USE THIS WITNESS WITH RESPECT TO THE VOLUNTARINESS OF THE STATEMENT, THAT THEY WERE NOT GOING TO USE THIS WITNESS WITH RESPECT TO THE CIRCUMSTANCES OF THE OFFENSE. SO THEY REDACTED AND REMOVED FROM THE REPORT ANY REFERENCE TO THE CIRCUMSTANCES OF THE OFFENSE. AND THE PROSECUTION CHALLENGE THAT. THEY ARGUED THAT THEY WERE ENTITLED TO IMMEDIATE DISCLOSURE OF THE ENTIRE REPORT JUST AS THE PROSECUTION HERE IS ARGUING THAT THE DEFENSE SHOULD BE REQUIRED TO IMMEDIATELY DISGORGE ANY AND ALL REPORTS THAT HAVE BEEN PREPARED. AND ACCOMPANYING THEIR DEMAND WAS A CONCESSION THAT THEY MAY WELL USE DR. LA CALLEY THEMSELVES AS A WITNESS IN SUPPORT OF THEIR CASE IN CHIEF. AND THE COURT MADE IT QUITE CLEAR THAT THE MERE DESIGNATION OF DR. LA CALLEY AS A WITNESS DID NOT SIMPLY WAIVE ANY PROTECTION OF PRIVILEGE THAT THE DEFENDANT MIGHT HAVE AND LOOKED VERY CAREFULLY AT THE INTERPLAY OF SECTION 1054.3, WHICH CREATES THE OBLIGATION TO PRODUCE THE REPORT, AND SECTION 1054.6, WHICH RECOGNIZES THAT THE PRIVILEGE OF WORK PRODUCT AND STATUTORY PRIVILEGES AND OTHER CONSTITUTIONAL PRIVILEGES ARE NOT OBLITERATED BY THE RECIPROCAL DISCOVERY OBLIGATION. THE PROSECUTION ARGUED FIRST OF ALL THAT LISTING THE WITNESS WAIVES THE PROTECTION. THAT'S SIMPLY SAYING YOU'RE GOING TO CALL THIS WITNESS, YOU GIVE UP ALL OF THE PRIVILEGES. AND THE COURT REJECTED THAT PROPOSITION. THEY SAID THE STATUTE REALLY CREATES A KIND OF A TWO-STEP PROCEDURE. AND I THINK IT'S IMPORTANT TO LOOK AT THE STATUTORY LANGUAGE AS THE COURTS HAVE IN VERY CAREFULLY AND CIRCUMSPECTLY CONSTRUING THIS STATUTORY OBLIGATION. THE STATUTE SAYS: "THE DEFENDANT SHALL DISCLOSE TO THE PROSECUTING ATTORNEY THE NAMES AND ADDRESSES OF PERSONS HE INTENDS TO CALL AS WITNESSES AT TRIAL TOGETHER WITH STATEMENTS, REPORTS, ET CETERA, ET CETERA, WHICH THE DEFENDANT INTENDS TO OFFER IN EVIDENCE AT TRIAL." SO THERE ARE REALLY TWO DECISIONS BEING MADE BY THE DEFENSE UNDER SECTION 1054.3; ONE, THE DECISION TO DESIGNATE A WITNESS. WE ARE GOING TO CALL DR. X AS A WITNESS AT TRIAL, AND THEN SECONDLY, THE DECISION OF WHAT REPORTS AND CONCLUSIONS OF THAT DOCTOR THE DEFENDANT INTENDS TO OFFER IN EVIDENCE AT THE TRIAL. AND IT IS NOT AT ALL AN UNLIKELY SCENARIO THAT THE DECISION ABOUT WHAT WE ARE GOING TO CALL UPON AN EXPERT TO TESTIFY TO WILL COME AFTER WE HAVE DECIDED THAT WE ARE IN FACT GOING TO CALL THAT EXPERT TO TESTIFY AS A WITNESS. AND THAT IS PRECISELY THE HOLDING OF RODRIGUEZ ON WHICH WE PLACE CHIEF RELIANCE, THAT THE PRIVILEGE CONTINUES TO APPLY. THE PRIVILEGE IS NOT WAIVED UNTIL THE REPORT IS TURNED OVER. PREMATURE TURNING OVER OF THAT REPORT BEFORE WE HAVE ACTUALLY DECIDED WE ARE GOING TO USE THIS AS EVIDENCE IN OUR CASE IN CHIEF JEOPARDIZES THE DEFENDANT BECAUSE IT WAIVES THE PRIVILEGE AND IT THEN GIVES TO THE PROSECUTION EVIDENCE THAT THEY MIGHT USE IN THEIR CASE IN CHIEF EVEN THOUGH WE AREN'T GOING TO USE IT IN OUR CASE IN CHIEF. SO WE ARE CONTENDING THAT WE CAN RESERVE THE DECISION OF WHAT WE ARE GOING TO HAVE THESE EXPERTS TESTIFY TO EVEN THOUGH WE HAVE DESIGNATED THEM AS WITNESSES. THE DESIGNATION IS NOT A WAIVER OF THE PRIVILEGE NOR IS EVEN A PARTIAL DISCLOSURE A WAIVER OF THE PRIVILEGE. THAT ARGUMENT WAS MADE IN RODRIGUEZ AND REJECTED AS WELL.

THE PROSECUTION ARGUED, WELL, SINCE YOU'VE TURNED OVER A REDACTED REPORT, YOU'VE WAIVED THE PRIVILEGE WITH RESPECT TO THE REDACTED PORTION AND YOU HAVE TO TURN IT ALL OVER. AND THE COURT SAID, NO, THAT'S NOT WHAT 1054.3 REQUIRES BECAUSE 1054.3 IS SUBJECT TO THE PRIVILEGE PROTECTION WHICH KICKS IN AFTER THE DESIGNATION. THE STATUTE CAN'T BE REREAD ANY OTHER WAY TO MAKE SENSE. SO THE PRIVILEGE PORTION OF 1054.6 REMAINS.

SO HOW DO WE APPLY THIS TO THE DR. WALKER SITUATION THOUGH?

WE CAN.

WE HAVE A DESIGNATION AND WE HAVE MENTION, DIRECT MENTION OF REPORT OF TESTS THAT HAVE BEEN A, QUOTE, UNQUOTE, BATTERY OF TESTS. SO HOW DO WE DISTINGUISH THAT SITUATION FROM WHAT YOU JUST ARGUED?

WELL, YOUR HONOR WILL RECALL THAT THE BATTERY OF TESTS WAS STILL UNDERWAY, WAS STILL BEING ADMINISTERED AT THE TIME OF THE OPENING STATEMENT. THE DEFENSE HAD NOT EVEN SEEN --

BUT THE CONCLUSION WAS OFFERED TO THE JURY THAT THE -- THAT DR. WALKER HAD ALREADY REACHED A CONCLUSION THAT THE DEFENDANT DOES NOT POSSESS AN ANTI-SOCIAL PERSONALITY, WHICH IS A CONCLUSION FROM MY RECOLLECTION OF BASIC PSYCHOLOGY THAT IS MADE AFTER CERTAIN STANDARDIZED TESTS AND INTERVIEWS.

WELL, ADDITIONAL TESTS WERE MADE AS WELL. AND AT THIS POINT, THE DEFENSE HAS NOT MADE A COMPLETE DETERMINATION OF WHAT WE INTEND TO CALL DR. WALKER TO TESTIFY. AND THERE ARE A NUMBER OF ISSUES THAT DR. WALKER MAY BE CALLED UPON TO TESTIFY. NOT JUST WITH RESPECT TO THE PERSONALITY OF THE DEFENDANT OR THE ABSENCE OF PROFILE INDICATORS, BUT SIMPLY BASED ON HER RESEARCH AND FAMILIARITY WITH THE FIELD, THE LACK OF PREDICTABILITY OF HOMICIDES BASED ON A PRIOR HISTORY OF BATTERING. THE ONLY RELEVANCE THAT DR. WALKER'S TESTIMONY IS GOING TO HAVE IS TO REBUT THE INFERENCES THAT THE PROSECUTION IS GOING TO TRY TO DRAW FROM THE PRIOR ACTS IN THEIR ATTEMPT TO DRAW INFERENCES OF MOTIVE, IDENTITY AND COMMON SCHEME. AND UNTIL WE'VE HEARD THAT EVIDENCE AND UNTIL, FOR EXAMPLE, WE KNOW WHETHER THEY'RE GOING TO BE PRESENTING ANY EXPERTS, WE STILL DON'T KNOW THE FULL SCOPE OF WHAT DR. WALKER MAY BE CALLED UPON TO TESTIFY TO. AND WE BELIEVE THAT WE HAVE NOT ONLY A RIGHT, BUT AN OBLIGATION NOT TO WAIVE ANY PRIVILEGE AND GIVE TO THE PROSECUTION MATERIAL THAT THEY MAY THEN IN TURN USE AGAINST THE DEFENDANT IN THEIR CASE IN CHIEF UNTIL WE KNOW PRECISELY WHAT POSITION THEY ARE GOING TO TAKE AND WHETHER THEY ARE GOING TO PRESENT ANY EXPERT TESTIMONY. WE DON'T WANT TO WAIVE THE PROTECTIONS, FOR EXAMPLE, THAT WE HAVE UNDER 1107 OF THE EVIDENCE CODE THAT PRECLUDES THEM FROM PRESENTING THIS KIND OF EXPERT TESTIMONY. AND IF YOUR HONOR RULES THAT THEY CAN'T PUT THAT KIND OF EXPERT TESTIMONY ON, THAT MAY IN TURN LEAD US TO A VERY DIFFERENT CONCLUSION, OPENING STATEMENT NOTWITHSTANDING, WITH RESPECT TO THE PRECISE SCOPE OF DR. WALKER'S TESTIMONY. NOW, IF I COULD RETURN TO THE THREE CATEGORIES THAT I INDICATED AT THE OUTSET. I THINK WE CAN HONESTLY REPORT IN GOOD FAITH THAT WE DO NOT KNOW AT THIS POINT WHAT WE WILL CALL MANY OF THE EXPERTS TO TESTIFY TO IN THE COURSE OF THIS TRIAL. MANY OF THEM WILL BE REBUTTING PROSECUTION EXPERTS. WE HAVE NO IDEA WHAT PROSECUTION EXPERTS WILL BE CALLED, WHAT THEY WILL TESTIFY TO. IN FACT, MANY OF OUR EXPERTS ARE ON THE PROSECUTION'S WITNESS LIST AND WE DON'T KNOW WHAT WE HAVE FROM OUR EXPERTS THAT MAY BE NEEDED TO REBUT OR CROSS-EXAMINE THEM IF AND WHEN THEY ARE CALLED BY THE PROSECUTION. THE PROSECUTION HAS NOT MADE ANY PROFFER. THEY HAVEN'T TOLD US WHAT THEY EXPECT TO CALL THESE WITNESSES FOR OR HOW THEY WILL LIMIT THEIR TESTIMONY. SO AT THIS POINT, WE SIMPLY DON'T KNOW. WE'RE NOT IN ANY POSITION TO MAKE ANY DECISIONS ABOUT WHAT THE SCOPE OF OUR EXPERT TESTIMONY SHOULD BE.

NOW, WITH RESPECT TO THE FIRST CATEGORY, YOUR HONOR, THE REPORTS OR RESULTS THAT WE HAVE IN EXISTENCE, BUT THE SCOPE OF THE TESTIMONY IS YET TO BE DETERMINED, WE DO HAVE A REPORT FROM A DR. HUIZENGA, AN ORTHOPOD, WHO ACTUALLY TREATED MR. SIMPSON FOR THE CONDITION RELATED TO HIS LYMPH NODES. BUT THIS REPORT CONTAINS OTHER OBSERVATIONS AND CONCLUSIONS AS WELL. AND DR. HUIZENGA IS ONE OF THOSE EXPERTS WHO IS ON THE PROSECUTION'S WITNESS LIST. WE DON'T KNOW WHAT THEY'RE GOING TO CALL HIM FOR. SO FRANKLY, AT THIS POINT, WE'RE NOT IN ANY POSITION TO MAKE THE DECISION THAT WE'RE CALLED UPON TO MAKE UNDER SECTION 1054.3. WE HAVE DESIGNATED DR. HUIZENGA BECAUSE WE DON'T WANT TO BE PRECLUDED FROM CALLING HIM AS A WITNESS. WE WANT TO MAKE SURE THAT HE IS ON THE WITNESS LIST AND AVAILABLE TO BE CALLED, BUT WE DON'T KNOW WHAT WE'RE GOING TO CALL HIM FOR. WE DON'T KNOW WHAT HE'S GOING TO HAVE TO TESTIFY TO UNTIL WE'VE HEARD FROM THE PROSECUTION, UNTIL WE KNOW WHICH OF HIS OBSERVATIONS MAY BE RELEVANT AND WHICH OF THEM MAY BE APPROPRIATE REBUTTAL TO THE PEOPLE CALLING THIS WITNESS THEMSELVES. AND THERE'S NO WAY WE CAN MAKE THAT DECISION UNTIL THE POINT IN THE TRIAL WHERE THAT BECOMES CLEAR AS TO WHETHER HE'S GOING TO BE CALLED, WHAT HE'S GOING TO TESTIFY TO AND WHAT OBSERVATIONS ARE GOING TO BE IN ISSUE. AND THE RISK OF COURSE IS, IF WE JUST TURN THIS REPORT OVER NOW AND SAY, HERE, YOU GO, FOLKS, THEY'RE GOING TO HAVE AMMUNITION THAT THEY MAY BE ABLE TO USE AGAINST MR. SIMPSON IN THEIR CASE IN CHIEF AND EVEN THOUGH WE HAVE NOT YET MADE THE DECISION THAT TRIGGERS THEIR RIGHT TO HAVE A PREVIEW, TO HAVE A PEEK AT THIS MATERIAL, BECAUSE WE'VE DECIDED WE'RE GOING TO PRESENT IT IN OUR CASE IN CHIEF. WE ALSO HAVE ALREADY IN EXISTENCE THE REPORT OF DR. HENRY LEE WITH RESPECT TO HIS EXAMINATION OF THE CONTENTS OF THE SEALED ENVELOPE. AND YOUR HONOR WILL RECALL THAT THIS REPORT WAS ALREADY MADE AVAILABLE TO THE PROSECUTION OVER OUR OBJECTION. AND THE OBJECTION YOUR HONOR WILL RECALL IS THAT WE WANT TO USE THIS AS REBUTTAL. AND IF WE GIVE THIS TO THEM IN ADVANCE, THEY MAY USE IT TO SHAPE THEIR CASE IN CHIEF. AND, YOUR HONOR, I THINK WE'VE ALREADY SEEN THAT HAPPEN. WE SAW AT THE PRELIMINARY HEARING THAT A FUNDAMENTAL PREMISE OF THE PROSECUTION'S CASE WAS THAT MR. SIMPSON WENT AND BOUGHT A KNIFE AT ROSS CUTLERY APPROXIMATELY TWO WEEKS BEFORE THE HOMICIDE TOOK PLACE, AND THE SUGGESTION WAS MADE THAT THAT KNIFE WAS USED AS THE WEAPON IN THIS HOMICIDE.

WHAT HAPPENED? WE DIDN'T HEAR ANYTHING ABOUT ROSS CUTLERY IN THE OPENING STATEMENT OF THE PROSECUTION. AT THIS POINT, FROM ALL APPEARANCES, IT APPEARS THAT THEY HAVE COMPLETELY ABANDONED THIS THEORY AND THAT THEY ARE NOT GOING TO CONTEND THAT THIS WAS THE WEAPON USED OR THAT THE PURCHASE OF THIS WEAPON HAD ANYTHING TO DEAL WITH THE COMMISSION OF THIS CRIME. WE BELIEVE THAT THIS EVIDENCE WILL STILL BE RELEVANT BECAUSE A SIMILAR WEAPON WAS PRESENTED TO THE CORONER, WAS PRESENTED TO SEVERAL OTHER WITNESSES, AND WE'RE GOING TO BE IN A POSITION TO USE THE CONTENTS OF THAT ENVELOPE AS PART OF OUR REBUTTAL CASE. BUT YOUR HONOR CAN SEE THE DANGER, THE DANGER THAT BY REQUIRING PREMATURE DISCLOSURE OF THE EXPERT TESTIMONY OF DEFENSE EXPERTS, THE PROSECUTION THEN SEIZES ON THAT TO CHANGE THE THEORY OF THEIR CASE, TO CHANGE THE TESTIMONY OF THEIR EXPERTS, TO ALTER THE DECISIONS THAT THEY'RE MAKING WITH RESPECT TO THE EVIDENCE THAT THEY ARE GOING TO PRESENT IN THEIR CASE IN CHIEF. NOW, THE SECOND CATEGORY THAT WE'RE CONCERNED ABOUT ARE REPORTS OR RESULTS THAT ARE IN PREPARATION, BUT THE SCOPE OF THE TESTIMONY IS YET TO BE DETERMINED. AND CERTAINLY --

ALL RIGHT.

JUST SO WE'RE CLEAR, MR. UELMEN, YOU ARE REPRESENTING TO THE COURT AT THIS POINT THAT THE ONLY TWO REPORTS THAT ARE CURRENTLY IN EXISTENCE ARE DR. HUIZENGA, THE ORTHOPOD, AND DR. HENRY LEE WITH REGARDS TO THE CONTENTS OF THE SEALED ENVELOPE.

THAT'S CORRECT, YOUR HONOR.

OKAY.

WE --

THE SECOND CATEGORY, REPORTS OR RESULTS IN PREPARATION, BUT THE SCOPE OF THE TESTIMONY IS YET TO BE DETERMINED. NOW, IN THIS CATEGORY, WE WOULD PUT DR. JOHN GERDES, WE WOULD PUT DR. LENORE WALKER, AND WE WOULD PUT DR. MALTZ RELATING TO THE TREATMENT OF MR. SIMPSON'S CONDITION WITH RESPECT TO ARTHRITIS. DR. GERDES IS IN THE PROCESS AT THIS MOMENT OF PREPARING A REPORT ON CONTAMINATION IN THE LOS ANGELES POLICE DEPARTMENT LABORATORY, AND THAT REPORT IS BASED ON THE LAPD LABORATORY'S OWN DATA. AND OF COURSE, WE WOULD PREFER TO HAVE DR. GERDES AWAIT THE COMPLETION OF HIS REPORT UNTIL THE PRESENTATION OF THE LAPD LAB RESULTS IN COURT. AND WE THINK WE'RE ENTITLED TO THAT; THAT WE WANT THIS REPORT TO BE SURE TO ADDRESS ALL OF THE ISSUES RAISED BY ANY EVIDENCE THAT IS OFFERED BY THE PEOPLE THAT WAS TESTED IN THE LAPD LABORATORY OR THAT PASSED THROUGH THE LAPD LABORATORY. WE DON'T WANT TO BE IN THE POSITION OF THE PROSECUTION SAYING, WELL, WHAT ABOUT THIS THAT WAS PRESENTED IN OUR CASE IN CHIEF? THAT'S NOT REFERRED TO IN YOUR REPORT, AND WE THINK WE'RE ENTITLED TO THAT. WE'RE ENTITLED TO HAVE OUR EXPERTS PREPARE ONE FINAL REPORT AND NOT BE IN A POSITION OF PRESENTING INTERIM REPORTS, OF PRESENTING A REPORT WITH SUPPLEMENTAL REPORTS AT THE RISK OF CONFUSING THE JURY, AT THE RISK OF OUR EXPERTS APPEARING LESS CONFIDENT THAN THEY ACTUALLY ARE BECAUSE OF THE WAY IN WHICH THE REPORTS ARE PRODUCED. THE DISCOVERY LAW DOES NOT REQUIRE THE DEFENSE TO PRODUCE A PARTICULAR KIND OF REPORT OR TO PRODUCE ANY REPORT AT ALL. AND WE BELIEVE IT IS WITHIN THE SOUND TACTICAL DECISION OF THE DEFENSE TO SAY TO OUR EXPERTS, WE WANT YOU TO DO A FINAL REPORT AFTER YOU HAVE EVERYTHING IN FRONT OF YOU THAT YOU WANT TO CONSIDER.

WELL, MR. UELMEN, LET'S ASSUME THAT TO BE TRUE AND THAT I ACCEPT YOUR ARGUMENT THAT THERE IS NOT A REQUIREMENT UNDER 1054, ET SEQ, FOR AN INTERIM REPORT OR PRELIMINARY REPORTS OR ANY OF THAT. BUT ISN'T THIS A SITUATION WHERE THE PROSECUTION IS, UNDER ANY CONCEIVABLE SCENARIO OF FACTS IN THIS CASE, GOING TO PRESENT LABORATORY RESULTS FROM THE LAPD CRIME LAB?

WE DON'T KNOW THAT, YOUR HONOR.

WELL, I FIND IT HARD TO BELIEVE THAT THEY'RE NOT GOING TO. SECONDLY, IT WOULD BE UNBELIEVABLE TO ME THAT IF YOU HAVE A REPORT THAT SUGGESTS SIGNIFICANT OR SERIOUS CONTAMINATION PROBLEMS WITHIN THE LAPD LAB, THAT YOU WOULD NOT PRESENT THAT.

WELL, IT DOESN'T PRESENT A TACTICAL DECISION IN TERMS OF WHETHER WE'RE GOING TO PRESENT IT. IT PRESENTS A TACTICAL DECISION IN TERMS OF ALL OF THE ISSUES THAT THIS PARTICULAR WITNESS IS GOING TO ADDRESS, ALL OF THE CONCLUSIONS THAT HE IS GOING TO PRESENT. BUT I THINK THE KIND OF FLEXIBILITY THAT WE WOULD CONTEND WE'RE ENTITLED TO WITH RESPECT TO ALL OF OUR EXPERTS IS PROBABLY LEAST PERSUASIVE IN THE CONTEXT OF THIS REPORT OF DR. GERDES. BUT I DO CONTEND VERY STRONGLY THAT WE HAVE A RIGHT TO SAY TO THE EXPERT, WE WANT ONE REPORT, WE WANT A FINAL REPORT AND WE WANT IT AFTER YOU HAVE AN OPPORTUNITY TO SEE EVERYTHING THAT YOU WANT TO SEE, HEAR EVERYTHING THAT YOU WANT TO HEAR. NOW, WITH RESPECT TO DR. MALTZ, WE HAVE MEDICAL FILES, BUT A REPORT HAS NOT BEEN PREPARED. THE MEDICAL FILES ARE PROTECTED BY THE PHYSICIAN-PATIENT PRIVILEGE. DISCLOSING THIS MATERIAL IS GOING TO BE A WAIVER OF THAT PRIVILEGE; AND AT THIS POINT, WE SIMPLY ARE NOT PREPARED TO MAKE A DECISION OF HOW MUCH OR ALL OF THIS PARTICULAR DOCTOR'S OBSERVATIONS WE ARE PREPARED TO WAIVE IN ORDER TO PRESENT HIM AS A WITNESS. BUT HE IS ON THE WITNESS LIST AND A REPORT OR RESULTS ARE IN PREPARATION, BUT THE SCOPE OF HIS TESTIMONY IS YET TO BE DETERMINED.

BUT HAVEN'T WE ALREADY BEEN APPRISED OF THAT BY THE OPENING STATEMENT SAYING THAT THE DEFENSE IS GOING TO SHOW THAT MR. SIMPSON HAD A LONG-ESTABLISHED ARTHRITIC CONDITION AND THAT IT WAS IN AN INFLAMED STATE ON THE DATE OF JUNE THE 12TH OR THEREABOUTS? I MEAN, ISN'T THAT -- AREN'T THOSE TWO FACTS, IF THERE ARE REPORTS THAT SUPPORT THAT, THAT NOW YOU HAVE TO DISCLOSE?

WELL, I THINK IT'S VERY SIMILAR TO THE SITUATION WITH RESPECT TO DR. LENORE WALKER. WE WOULD SAY, YOUR HONOR, THAT THE OPENING STATEMENT WAS BASED ON PRELIMINARY ORAL INFORMATION RECEIVED FROM THESE EXPERTS. IF -- AND THE OPENING STATEMENT DOES NOT ABSOLUTELY OBLIGATE US TO CALL THOSE WITNESSES.

BUT IT CERTAINLY IS AN INDICATION OF AN INTENTION TO CALL THOSE PEOPLE.

YES.

OKAY.

AND WE MAY INDICATE JUST AS DESIGNATING THEM AS WITNESSES ON THE WITNESS LIST IS AN INDICATION OF INTENTION. BUT THE PROBLEM IS THAT DESIGNATING THE INTENTION TO CALL THEM, JUST AS THE RODRIGUEZ COURT INDICATED, IS NOT A WAIVER OF WHATEVER PRIVILEGES MIGHT APPLY TO THEIR TESTIMONY. AND WE STILL HAVE YET TO MAKE A DETERMINATION OF THE SCOPE OF THE TESTIMONY THAT THEY ARE GOING TO PRESENT, AND WE ARE ENTITLED TO AWAIT MAKING THAT, FORMING THAT INTENT, DECIDING WE ARE GOING TO PUT THESE PEOPLE ON AND THESE ARE THE OBSERVATIONS THAT WE WANT TO HAVE THEM TESTIFY TO BEFORE WE TURN THAT OVER. NOW, IT MAY BE WITH RESPECT TO DR. MALTZ, WITH RESPECT TO DR. WALKER, THAT THERE ARE SOME OBSERVATIONS THAT WE DON'T INTEND TO HAVE THEM TESTIFY TO, THAT WE REGARD AS IRRELEVANT TO THE ISSUES THAT WE ARE LITIGATING. AND THE POINT IS, IF WE'RE REQUIRED TO JUST DISGORGE EVERYTHING AND TURN IT ALL OVER BEFORE WE HAVE BEEN ABLE TO MAKE THAT KIND OF A DETAILED DETERMINATION OF WHAT WE'RE GOING TO HAVE THEM TESTIFY TO, WE RISK WAIVING THE PROTECTION OF PRIVILEGES THAT WOULD OTHERWISE PROHIBIT THE PROSECUTION FROM HAVING ANY ACCESS TO THIS MATERIAL. NOW, THE FINAL CATEGORY I WANT TO ADDRESS IS PROBABLY THE MOST DIFFICULT TO ADDRESS BECAUSE OF THE COMMENTS BY YOUR HONOR IN THE ORDER. AND THIS IS THE SITUATION WHERE THERE ARE NO REPORTS IN EXISTENCE, THERE ARE NO REPORTS IN PREPARATION. THE DEFENSE SIMPLY HAS NOT REQUESTED THESE EXPERTS TO PRODUCE REPORTS. AND THESE EXPERTS INCLUDE DR. MICHAEL BADEN, THEY INCLUDE DR. BARBARA WOLF, THEY INCLUDE DR. HENRY LEE WITH RESPECT TO ANY OTHER EXAMINATIONS OTHER THAN THE EXAMINATION OF THE CONTENTS OF THE SEALED ENVELOPE. THEY INCLUDE SOME OF THE DNA EXPERTS THAT WE HAVE CONSULTED WITH LIKE DR. KARY MULLIS WHO IS MENTIONED IN THE MOTION. AND YOUR HONOR INDICATED THAT THE PRACTICE OF CONSULTING WITH EXPERT WITNESSES AND INSTRUCTING THEM TO REFRAIN FROM PRODUCING WRITTEN REPORTS IS OFTEN VIEWED BY TRIAL COURTS WITH A CERTAIN SCEPTICISM AS A SUBTERFUGE TO CIRCUMVENT RECIPROCAL DISCOVERY OBLIGATIONS AND THAT IT SEEMS IMPLAUSIBLE THAT SUCH EXPERT STATEMENTS OR REPORTS ARE NOT PRESENTLY IN EXISTENCE GIVEN THE COMPLEXITY OF THIS CASE, THE PREEMINENCE OF THE EXPERTS INVOLVED, THE NUMBER OF ATTORNEYS INVOLVED AND THE COURT'S EXPERIENCE WITH THE PRESENTATION OF EXPERT WITNESSES. THE FIRST THING I WANT TO DO IS ASSURE YOUR HONOR THAT WHAT IS GOING ON HERE IS NOT WHAT WENT ON IN IN RE SARA, WHICH IS THE ONE CASE YOUR HONOR CITED WHERE COURTS HAVE IMPOSED SANCTIONS FOR THE DEFENSE'S INSTRUCTION TO A WITNESS NOT TO PRODUCE A REPORT. AND IT'S QUITE CLEAR FROM THE SARA CASE THAT WHAT THE COURT WAS PRESENTED WITH WAS A WITNESS, A PHYSICIAN WHO EXAMINED THE DEFENDANT WHO WAS THEN CALLED TO TESTIFY AT THE TRIAL, AND HE TESTIFIED THAT HIS NORMAL PROCEDURE, AFTER MAKING A PSYCHIATRIC EXAMINATION IN CRIMINAL CASES, WAS TO PREPARE A WRITTEN REPORT AND THAT HE WOULD HAVE DONE SO IN THIS CASE, BUT FOR THE FACT THAT HE WAS INSTRUCTED NOT TO BY MR. SARA. AND BEFORE THE COURT ALSO WAS AN AFFIDAVIT OF THE PROSECUTOR WHICH WAS NOT COUNTERED TO WHOM MR. SARA HAD SAID THAT HE INSTRUCTED DR. HOFFMAN TO WRITE NO REPORT AND THAT THIS WAS GOOD TRIAL PRACTICE TO AVOID RECIPROCAL DISCOVERY. MR. SARA WAS FINED $1,000 FOR THAT AND FOUND IN CONTEMPT OF COURT. WHILE MR. SARA'S CANDOR WAS REFRESHING, AS IT ALWAYS IS -- HE'S A VERY CANDID PERSON -- I CAN CANDIDLY REPORT THAT THAT IS NOT WHAT IS GOING ON HERE. IN FACT, WE HAVE THE PRECISE OPPOSITE. WE HAVE EXPERTS WHOSE NORMAL GENERAL PRACTICE IS NOT TO PRODUCE REPORTS UNLESS THOSE REPORTS ARE REQUESTED. AND WE WOULD CONTEND THAT SECTION 1054.3 DOES NOT IMPOSE UPON THE DEFENSE AN OBLIGATION TO REQUEST A REPORT SIMPLY SO THAT REPORT CAN BE TURNED OVER TO THE PROSECUTION, ESPECIALLY IF THERE ARE LEGITIMATE TACTICAL REASONS OTHER THAN AVOIDING RECIPROCAL DISCOVERY AS THE ONLY REASON FOR NOT REQUESTING THAT REPORT. FRANKLY, YOUR HONOR, THE SARA CASE IS THE ONLY CASE I'M AWARE OF IN WHICH THE COURT -- ANY COURT EVER IMPOSED SANCTIONS UNDER THESE CIRCUMSTANCES. I HAVE NEVER HEARD OF A LAWYER BEING SANCTIONED FOR NOT REQUESTING A REPORT. IN FACT, EVEN IN CIVIL CASES IN CALIFORNIA, WE HAVE A STATUTE THAT REQUIRES ANY PARTY TO INCLUDE IN THEIR DEMAND FOR PRODUCTION ALL REPORTS AND WRITINGS, IF ANY, MADE BY AN EXPERT. AND THE LEADING COMMENTATORS ON CIVIL DISCOVERY INDICATE THAT IT'S UP TO THE LAWYER WHETHER OR NOT, EVEN IN A CIVIL CASE, TO REQUEST A REPORT, AND THE FAILURE TO REQUEST A REPORT DOES NOT PRECLUDE ANYONE FROM CALLING AN EXPERT WITNESS SIMPLY BECAUSE THAT EXPERT DID NOT PREPARE A REPORT. NOW, OBVIOUSLY WHEN THE EXPERT IS ON THE STAND, THE PEOPLE CAN GET UP AND SAY, "DID YOU PREPARE A REPORT? NO, YOU DIDN'T? WHY NOT? OH, IT'S NOT YOUR NORMAL PRACTICE TO PREPARE A REPORT?" FINE. IF THEY WANT TO OFFER THAT IN EVIDENCE TO CHALLENGE THE CREDIBILITY OF THE EXPERT'S CONCLUSIONS OR TO SUGGEST SOMEHOW THAT THE EXPERT IS BIASED, THEY CAN ASK THAT QUESTION, THEY CAN ARGUE IT.

BUT IF -- ON REDIRECT WE CAN GET UP AND SUGGEST THERE MAY BE OTHER REASONS AND SIMPLY AVOIDING COMPLIANCE WITH RECIPROCAL DISCOVERY OBLIGATIONS FOR FAILING TO ASK FOR A REPORT, THAT MAY COUNTER ANY ADVERSE INFERENCES THAT THEY WISH TO DRAW FROM THIS CIRCUMSTANCE. AND, YOUR HONOR, THERE ARE LOTS OF REASONS OTHER THAN JUST AVOIDING RECIPROCAL DISCOVERY FOR DEFENSE LAWYERS NOT TO REQUEST REPORTS. ONE OF COURSE IS THE AVAILABILITY OF THE EXPERT'S TIME. IN FACT, OUR CONTACT WITH SOME OF THE PROSECUTION EXPERTS IN THIS CASE SUGGESTS THAT THEY'VE BEEN TOLD TO KEEP ON DOING THEIR TESTING AND WRITE THEIR REPORTS LATER, THAT THE AVAILABILITY OF LIMITED AMOUNT OF TIME OF THESE VERY BUSY AND VERY PROMINENT EXPERTS SUGGEST THAT PERHAPS WE DON'T WANT THEM TO TAKE A LOT OF TIME RIGHT NOW PREPARING REPORTS. WE WANT THEM TO BE AVAILABLE TO CONSULT WITH US, TO EXAMINE EVIDENCE AND NOT SPEND THAT TIME WRITING REPORTS. MOST EXPERTS ARE PAID BY THE HOUR. SO THERE'S A COST CONSIDERATION WITH RESPECT TO THE PREPARATION OF REPORTS. IT SIMPLY ADDS TO THE COST OF EMPLOYING EXPERTS TO PAY THEM FOR THE TIME-CONSUMING PROCESS OF PREPARING REPORTS. MANY OF THESE EXPERTS ARE IN AN ON-GOING CONSULTATIVE ROLE. THAT IS, THEY ARE FUNCTIONING REALLY ALMOST AS MEMBERS OF THE PROSECUTION'S TEAM IN TERMS OF PROVIDING ON-GOING ADVICE WITH RESPECT TO HOW WE SHOULD HANDLE EXPERTS CALLED BY THE PROSECUTION. AND THEIR ROLE IS A MIXED ROLE. THEY MAY BE CALLED TO TESTIFY. THEY MAY NOT. BUT THEY ARE SERVING AN ON-GOING CONSULTATIVE ROLE; AND IF IN THE COURSE OF HOW THE TESTIMONY IS PRESENTED IN THE COURSE OF THE TRIAL, WE FEEL WE NEED TO CALL THEM AS WITNESSES, WE WILL DO SO, AND WE SHOULD NOT BE PRECLUDED FROM DOING SO BECAUSE WE DID NOT REQUEST THEM TO PREPARE A REPORT. FINALLY, THERE IS THE CONSIDERATION OF LEAKS. I MEAN THE EXISTENCE OF REPORTS ADDS TO THE RISK OF A LEAK. I DON'T THINK THAT'S A CONCERN THAT IS AN OVERWHELMING ONE FOR US, BUT WE HAVE CERTAINLY SEEN IN THIS CASE THE PROBLEM ON THE PROSECUTION SIDE WITH THE REPORTS THAT WERE BEING PRODUCED BEING LEAKED TO THE PRESS AND READING ABOUT THEM IN THE NEWSPAPER. BUT WHAT -- AND I'M NOT SUGGESTING THAT WE HAVE TO DISCLOSE ALL OF OUR TACTICAL REASONS FOR ORDERING A REPORT OR NOT ORDERING A REPORT. I THINK THESE ARE WITHIN THE LEGITIMATE DOMAIN OF TACTICAL CONSIDERATIONS BY THE DEFENSE, AND IT IS CERTAINLY NOT INTENDED BY SECTION 1054.3 REQUIRING DISCLOSURE OF THE REPORTS THAT AN OBLIGATION BE CREATED TO CREATE REPORTS TO DISCLOSE. IT IS SIMPLY AN OBLIGATION TO TURN OVER REPORTS THAT ARE IN EXISTENCE. SO, YOUR HONOR, IN CONCLUSION, WE WOULD CONTEND THAT THE DEMAND OF THIS MOTION IS OVERBROAD BY CALLING FOR ALL REPORTS AND ALL NOTES WITHOUT DISTINCTION EVEN THOUGH THE STATUTE REQUIRES SOME VERY IMPORTANT DISTINCTIONS BE MADE. THE DEMAND IS PREMATURE BECAUSE THERE IS NO OBLIGATION TO PRODUCE REPORTS UNTIL THE DEFENSE HAS FORMED THEIR INTENT TO OFFER THOSE REPORTS IN EVIDENCE. AND IN GOOD FAITH, I CAN REPRESENT TO YOUR HONOR THAT WITH RESPECT TO MOST OF THESE EXPERTS, THAT DECISION SIMPLY HAS NOT BEEN MADE YET. IT CANNOT BE MADE. IT CANNOT BE MADE BY ANY RESPONSIBLE DEFENSE LAWYER AT THIS POINT IN THE CASE, TO WHOLESALE TURN OVER INFORMATION ABOUT WHAT EXPERTS ARE GOING TO TESTIFY TO AND WAIVE WHATEVER PRIVILEGE PROTECTS THAT INFORMATION, UNTIL WE KNOW MORE, UNTIL WE KNOW MORE ABOUT THE PROSECUTION CASE, WHAT THEY'RE GOING TO PRESENT, WHAT THEY'RE NOT GOING TO PRESENT. AND FINALLY, THAT COMPLYING WITH THIS DEMAND WOULD VIOLATE PRIVILEGES THAT ARE PROTECTED BY 1054.6, INCLUDING THE WORK PRODUCT PRIVILEGE, THE ATTORNEY-CLIENT PRIVILEGE AND THE SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL.

THANK YOU, COUNSEL. MISS LEWIS, ANY BRIEF RESPONSE?

YOUR HONOR, A COUPLE OF MAJOR POINTS TO BE MADE. THE FIRST OF THOSE IS THAT WE ARE AT A POINT WHERE THE COURT HAS ALREADY ORDERED THE PRODUCTION OF THESE DOCUMENTS. A LOT OF WHAT MR. UELMEN -- ACTUALLY EVERYTHING MR. UELMEN HAS JUST TRIED TO ARGUE TO THE COURT IS SEEKING TO RELITIGATE WHAT THE COURT HAS ALREADY ORDERED CONCLUSIVELY AND WHAT THE COURT ORDERED UNDER THE AUTHORITY OF THE LAW. HINES, WOODS PROVIDE FOR THE COURT'S ORDER, AND THE COURT HAS ORDERED IN CONJUNCTION WITH THAT OUTSTANDING CASE LAW AND THE STATUTE. SO THE COURT'S ORDER AS IT STANDS IS ALREADY THERE. THE DEFENSE IS IN A POSITION WHERE THEY SHOULD BE DEFENDING WHY THEY HAVEN'T TURNED THIS STUFF OVER AND WHY THEY'RE NOT GOING TO TURN IT OVER BY 5:00 O'CLOCK TOMORROW. THEY SHOULD NOT BE RELITIGATING AND SEEKING TO REVISIT THE LEGAL ISSUES INVOLVED BECAUSE THOSE HAVE BEEN LITIGATED AND THEY HAVE BEEN VISITED. NOW, YOUR HONOR, THE DEFENSE ARGUMENT IS THAT BECAUSE WE DON'T KNOW THE SCOPE OF THE TESTIMONY OF THE EXPERTS, WE ARE NOT OBLIGATED TO TURN OVER ANY DISCOVERY WITH REGARD TO THEM NOR ARE WE OBLIGATED TO ASK THEM FOR A FINAL REPORT UNTIL WE KNOW FINALLY AND FOR SURE EVERYTHING THAT THEY'RE GOING TO HEAR THAT MAY BE RELEVANT TO THEIR WRITING THAT FINAL REPORT. THAT CANNOT BE THE LAW. THERE IS NO SUPPORT FOR THAT, AND IT'S CLEAR WHY. WHEN THE DISCOVERY STATUTE EXPLICITLY AND EXPRESSLY REFERS TO THE REPORTS AND STATEMENTS OF EXPERT WITNESSES, IT CONTEMPLATES THEY'RE BEING TURNED OVER, AND THAT'S WHY THEY'RE LISTED THERE. OTHERWISE, IN EVERY CASE, A DEFENSE ATTORNEY COULD SAY, WE'RE NOT SURE EXACTLY WHAT INFORMATION IS GOING TO BE PERTINENT TO THIS EXPERT'S TESTIMONY UNTIL WE'VE HEARD IT ALL. AND, THEREFORE, UNTIL THAT EXPERT IS CALLED TO THE STAND TO BE EXAMINED BY THE DEFENSE, HE HASN'T HEARD EVERYTHING THAT MIGHT POSSIBLY AFFECT HIS TESTIMONY. SO UNTIL HE'S CALLED TO THE STAND, HE CAN'T BE ASKED TO WRITE A FINAL REPORT AND THE SCOPE OF HIS TESTIMONY IS UNDETERMINED. YOUR HONOR, THIS IDEA THAT THE SCOPE OF THE TESTIMONY HAS ANYTHING TO DO WITH DISCOVERY IS DISINGENUOUS AT BEST. THERE IS JUST NO LAW TO SUPPORT THAT. THE DEFENSE ATTORNEYS IN THIS CASE MADE A VERY IMPORTANT TACTICAL, STRATEGIC DECISION TO MAKE A DETAILED OPENING STATEMENT AND TO TALK ABOUT THESE WITNESSES, THESE EXPERTS WITHIN THE CONTEXT OF THAT OPENING STATEMENT. AND WHEN MR. COCHRAN GOT UP IN FRONT OF THAT JURY AND TALKED ABOUT THOSE EXPERTS, TALKED ABOUT NOT ONLY THE EXPERTS THAT WE HEARD MENTIONED SO FAR, BUT TIRE TREAD EXPERTS, SHOEPRINT EXPERTS, CUTS ON HANDS EXPERTS, WHEN HE CHOSE TO TALK ABOUT ALL OF THOSE EXPERTS AND THEIR FORTHCOMING TESTIMONY, THAT CONCLUSIVELY NAILED IT THAT HE REASONABLY ANTICIPATED CALLING THOSE EXPERTS AS WITNESSES AT TRIAL UNDER FOOTNOTE 11 OF IZZAZAGA VERSUS SUPERIOR COURT. THAT CONCLUSIVELY, CONCLUSIVELY ESTABLISHED THAT INTENTION. IT DOES NOT MATTER WHAT THE DEFENSE SAYS NOW. THEY CANNOT GO BACK ON THAT AND SAY, WELL, WE'RE NOT SURE AND WE WANT TO HEAR THE FULL SCOPE FOR LEGAL PURPOSES, WHICH IS WHAT WE'RE INVOLVED IN HERE. WE ARE INVOLVED IN A DISCOVERY PROCEEDING WHERE THE COURT DETERMINES LEGAL ISSUES. WE'RE NOT TALKING ABOUT A FACTUAL DETERMINATION. THE DEFENSE IS ALMOST TRYING TO PULL INTO THIS LEGAL DISCUSSION A FACTUAL DETERMINATION FOR THE COURT TO HAVE TO MAKE A FINDING. BUT THEIR DISCUSSION DURING OPENING STATEMENT OPERATED AS A MATTER OF LAW TO WAIVE ANY PRIVILEGES AND TO REQUIRE THEM TO DISCLOSE THE DISCOVERY, WHICH THE DISCOVERY STATUTE MANDATES. IT IS OUTRAGEOUS FOR THE DEFENSE TO GET UP HERE AND NOW SEEK TO INSULATE THESE WITNESSES AND THEIR REPORTS AND THEIR NOTES FROM DISCOVERY BY WAITING UNTIL THEY TESTIFY. THAT'S WHAT THE OLD LAW WAS, YOUR HONOR. THAT WAS PRE PROP 115 WHERE THE DEFENSE EXPERTS DID NOT HAVE TO DISCLOSE THEIR MATERIALS UNTIL THEY TESTIFIED.

WE ARE IN A NEW AGE. WE ARE IN A NEW ERA CALLED RECIPROCAL DISCOVERY AND WE HAVE BEEN FOR FIVE YEARS NOW; AND THAT LAW, INCLUDING THE CASE LAW CONSTRUING IT, REQUIRES THEM TO DISGORGE, TO USE MR. UELMEN'S WORD, THIS MATERIAL. AND THE DISCOVERY LAW IN NO WAY -- THE CASES HAVE ALREADY HELD THIS -- IN NO WAY DOES IT REDUCE THE PROSECUTION'S BURDEN TO PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. IN EVERY CASE WHERE THE DEFENSE ELECTS TO MAKE AN OPENING STATEMENT, IT GIVES THE PROSECUTION A BETTER IDEA OF WHAT'S COMING UP AND, THEREFORE, ALLOWS FOR THAT MUCH BETTER PREPARATION OF THE PROSECUTION'S CASE. THAT'S JUST THE RISK THE DEFENSE TAKES AND KNOWINGLY TAKES WHEN THEY MAKE THE VERY CLEAR, TACTICAL AND STRATEGIC DECISION TO MAKE AN OPENING STATEMENT. AND THEY'VE MADE THAT DECISION IN THIS CASE NOT ONLY TO MAKE AN OPENING STATEMENT, BUT TO MAKE A MANY, MANY HOURS LONG OPENING STATEMENT DETAILING ALL OF THESE AREAS. SO WHEN MR. UELMEN SAYS WE DON'T WANT TO WAIVE, IT'S TOO LATE. THEY HAVE ALREADY WAIVED. THEY WAIVED BEFORE OPENING STATEMENT, BUT THEY CONCLUSIVELY NAILED IT WHEN THEY DISCUSSED ALL THESE EXPERTS DURING OPENING STATEMENTS. THERE IS NO LONGER AN ISSUE OF WAIVER. ALL OF THIS HAS BEEN WAIVED AND IT WAS WAIVED WEEKS AGO NOW, OVER A MONTH AGO. MAY I HAVE JUST A MOMENT, YOUR HONOR?

CERTAINLY.

YOUR HONOR, ONE THING THAT IS VERY TROUBLING ABOUT WHAT MR. UELMEN SAYS, IT'S ALMOST AS THOUGH THE DEFENSE IS SEEKING TO PUT THE WORDS IN THE MOUTH OF THE EXPERT AS FAR AS WHAT THE EXPERT IS GOING TO SAY ON THE STAND AND AS FAR AS WHAT THE EXPERT IS GOING TO REPORT ON. NOW, ARE THESE EXPERTS, ARE THESE INDEPENDENT WITNESSES WHO ARE GOING TO OFFER UNBIASED TESTIMONY OR ARE THESE -- I SEE THE COURT STIFLING A YAWN. I DON'T --

NO, NO. I WAS JUST SHIFTING POSITION HERE.

BUT, YOU KNOW, TRUTHFULLY, IT SOUNDS ALARMING. MR. UELMEN'S STATEMENT SUGGESTED THE DEFENSE WANTS THEMSELVES TO DO EVERYTHING THEY CAN BUT WRITE THE REPORTS THEMSELVES. THERE IS SIMPLY NO CASE LAW TO SUPPORT THAT THEY CAN INSULATE THEIR EXPERTS' OPINIONS, CONCLUSIONS AND CERTAINLY NOTHING SUGGESTING THEY CAN INSULATE THEIR NOTES OR THEIR OBSERVATIONS IN TESTING -- ALL THE CASE LAW IS TO THE CONTRARY -- TO FASHION IT IN A MANNER THEY DESIRE. THESE ARE SUPPOSED TO BE INDEPENDENT EXPERTS. THEY SIMPLY CAN NOT TREAT THEM AS DEFENSE LACKEYS. THERE'S A STRONGER WORD WE SOMETIMES USE HERE THAT I DON'T WANT TO USE BEFORE THIS COURT. BUT AS DEFENSE LACKEYS TO DO EXACTLY WHAT THE DEFENSE BIDS. THE ORDER -- THE DEFENSE IN THIS CASE MADE THAT STRATEGIC, TACTICAL DECISION WHEN MR. COCHRAN TALKED AT LENGTH IN FRONT OF THE JURY. NOW THEY'RE OBLIGATED TO LIVE WITH THE CONSEQUENCES OF THAT DECISION. THEY CANNOT HAVE THEIR CAKE AND EAT IT TOO. THEY MADE THAT DECISION. THE CAT IS OUT OF THE BAG. THE BARN DOOR IS OPEN. THEY HAVE TO LIVE WITH THE CONSEQUENCES, THE LEGAL RAMIFICATIONS OF WHAT INDEED THEY HAVE SET UP FOR THEMSELVES. OTHERWISE, THE RECIPROCAL DISCOVERY PROVISIONS, WHEN IT COMES TO EXPERTS, HAVE ABSOLUTELY NO MEANING AND NO EFFECT BECAUSE ANY DEFENSE ATTORNEY IN ANY CASE COULD INSULATE THEIR EXPERT UNTIL THE TIME THAT EXPERT TAKES THE STAND. THE -- YOU KNOW, GOING BACK TO THE LAW FOR A MOMENT, SINCE THAT'S REALLY WHAT THE COURT WILL BE FOCUSING ON HERE, THE RODRIGUEZ CASE WAS A PRETRIAL CASE WHERE ONLY THE -- WHERE THE ONLY THING THAT HAD HAPPENED IS THAT THE EXPERT HAD BEEN DESIGNATED AS ONE INTENDED TO CALL AT TRIAL. THERE HAD BEEN NO DISCUSSION IN OPENING STATEMENT OR OTHERWISE DURING TRIAL IN FRONT OF THE JURY OF WHAT THE EXPERT WOULD TESTIFY TO AND THE AREA THE EXPERT WOULD TESTIFY TO. SO WE'RE FAR BEYOND WHAT THE COURT OF APPEAL HAD TO DECIDE IN THE RODRIGUEZ COURT -- IN THE RODRIGUEZ CASE. I WANT TO MAKE A POINT WITH REGARD TO DR. HENRY LEE'S REPORT AND THE SEALED ENVELOPE, YOUR HONOR. THAT -- MY IMPRESSION IS THAT THE COURT'S ORDER IN THAT CASE WAS BASED NOT JUST ON DISCOVERY. THAT WAS PRECIPITATED BY A MOTION THAT WE FILED MANY MONTHS AGO THAT HAD TO DO WITH ETHICAL OBLIGATIONS OF ATTORNEYS AND THAT WAS NOT A DISCOVERY ISSUE. SO THEY'RE TRYING TO SAY, WELL, HERE, AT LEAST WE'VE TURNED OVER DR. LEE'S REPORT, BUT THAT REALLY DID NOT BEGIN AS A DISCOVERY ISSUE AND THAT WAS -- THE THRUST OF THAT WAS NOT A DISCOVERY ISSUE.

YOUR HONOR, FINALLY, I WANT TO MAKE THE POINT THAT THE COURT HAS ALREADY ORDERED THIS MATERIAL PRODUCED. THE ORDER WAS IN FULL COMPLIANCE WITH THE LAW. THERE IS NOTHING TO SUPPORT WHAT MR. UELMEN GETS UP HERE AND ASKS THE COURT TO DO IN TERMS OF HOLDING OFF UNTIL WITNESSES HAVE TESTIFIED THAT WILL ALLOW EXPERTS TO MAKE FINAL REPORTS. BUT THE FINAL THING, THE FINAL POINT I WANT TO MAKE, YOUR HONOR, IS, WE ARE HERE IN THE MIDDLE OF TRIAL. IF THE COURT DOES NOT RULE DECISIVELY IN THIS AREA, WE'LL BE BACK HERE AGAIN AND AGAIN AND AGAIN. THE COURT HAS ALREADY RULED DECISIVELY ONCE IN ITS JANUARY 29TH/30TH ORDER AND THE COURT RULED APPROPRIATELY AND DECISIVELY. WE'RE NOT HERE ON A MOTION TO RECONSIDER THAT RULING. THE DEFENSE NEVER BROUGHT SUCH A MOTION. THEY NEVER ASKED FOR THAT. IN FACT, I THINK THERE'S A 10-DAY LIMIT ON THAT. THEY NEVER ASKED FOR IT. WE'RE HERE AT A POINT IN TIME FOR THE COURT TO CONSIDER WHETHER IT SHOULD IMPOSE THE SANCTION OF DISALLOWING THE DEFENSE FROM CALLING THESE EXPERTS AS WITNESSES UNLESS THEY COMPLY WITH THIS COURT'S PREVIOUSLY ISSUED ORDER OVER A MONTH AGO AND COMPLY NOW. NOW, MEANING BY 5:00 O'CLOCK TOMORROW, GIVE THEM OVERNIGHT A CHANCE TO GET THESE MATERIALS TOGETHER. BUT THIS GAMESMANSHIP AND THIS HIDING AND THIS ACTING FRANKLY LIKE SPOILED CHILDREN BECAUSE THEY DON'T WANT TO LIVE WITH THE DECISION THAT THEY MADE TO GIVE A DETAILED, LENGTHY OPENING STATEMENT DETAILING ALL OF THIS, THIS IS HIGHLY INAPPROPRIATE, THIS IS HIGHLY INAPPROPRIATE BEHAVIOR BY LAWYERS TO ENGAGE IN AND THERE IS NO LAW TO SUPPORT IT.

ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. COUNSEL, WHAT I'M GOING TO DO ON THIS MATTER, BECAUSE THERE ARE SEVERAL DISCREET ISSUES OF DISCOVERY, I MEAN SEVERAL DISCREET REPORTS, EXPERTS EACH OF WHICH IS IN A SLIGHTLY DIFFERENT POSTURE BOTH ON THE BASIS OF WHAT WAS SAID DURING THE OPENING STATEMENT, ON THE BASIS OF WHAT'S BEEN REPRESENTED TO THE COURT, I AM GOING TO ISSUE AN AMENDMENT TO THE COURT ORDER THAT MORE SPECIFICALLY DELINEATES WHAT IS BEING ORDERED TO BE DISCLOSED. AND I HOPEFULLY WILL ISSUE THAT SOMETIME TOMORROW. ALL RIGHT.

YOUR HONOR, WOULD THE COURT CONSIDER PUTTING AN ACTUAL TIME AND DATE DEADLINE IN THAT ORDER BECAUSE WITHOUT IT --

OH, YES. I THOUGHT IMMEDIATELY MEANT CLOSE OF BUSINESS THE NEXT DAY, BUT THAT'S WHAT IT'S GOING TO MEAN.

THANK YOU.

AFTER I ISSUE THE ORDER.

I THINK IT HAS TO BE SPELLED OUT FOR THE DEFENSE.

ALL RIGHT. ALL RIGHT. LET'S TAKE A BRIEF RECESS FOR THE COURT REPORTER, AND THEN WE'LL LAUNCH INTO THE -- LET'S SEE. WHAT'S NEXT -- DNA AND THEN CLEANING UP THE INVESTIGATORY MATTERS. ALL RIGHT. LET'S TAKE 10.