YOUR HONOR, THE -- WE HAVE A NUMBER OF CONCERNS ABOUT DISCOVERY ABUSES WITH RESPECT TO A LETTER WE SENT YOU. THE FIRST ISSUE HAS TO DO WITH THE TAPE WHICH IS THE ONE THAT I THINK IS MOST PRESSING BECAUSE WE BELIEVE IT REQUIRES A HEARING. THE SECOND ISSUE HAS TO DO WITH THE FAILURE TO PROVIDE CERTAIN LABORATORY PAGES, LAB NOTE PAGES, WHICH WE HAVE BEEN GETTING OUT OF ORDER REALLY FROM THE COMMENCEMENT OF THESE PROCEEDINGS, BUT WE RECEIVED A WHOLE SERIES OF PAGES DEALING WITH THE CHRONOLOGY OF EVENTS STARTING IN JUNE THROUGH JULY, FROM MR. MATHESON IN PARTICULAR, THAT WE THINK WE SHOULD HAVE HAD A LONG TIME AGO AND THEY IMPACTED ON THINGS AS DISTANT AS THE SPLIT HEARINGS AND CERTAINLY RELATED TO OTHER IMPORTANT MATTERS. A SIGNIFICANT ISSUE THAT WE WOULD ADDRESS FOR THE COURT AND -- IS THE LATE DISCLOSURE OF THESE SETS PRINTOUTS AND THE APIMS PRINTOUTS WHICH WE THINK IS A DISCOVERY VIOLATION. THERE IS A VERY SIGNIFICANT ISSUE THAT WE HAVE BEEN GIVEN -- WHAT IS IT, MR. BLASIER, 200 PAGES?
283 PAGES WITH RESPECT TO SHOE EVIDENCE, MEMORANDUMS FROM THE FBI THAT -- OF INVESTIGATIONS THAT TOOK PLACE IN AUGUST, INTERVIEWS FROM ALL ACROSS THE COUNTRY, THINGS THAT IF WE WERE TO DOUBLE TRACK AT THIS POINT IN TIME WITH THE LIMITED RESOURCES AVAILABLE IN THE MIDDLE OF TRIAL, IS EXTREMELY DIFFICULT. WE SHOULD HAVE RECEIVED ALL THAT MATERIAL MUCH EARLIER. THERE IS AN ISSUE THAT WILL ARISE, I'M NOT SURE IT IS SO PRESSING FOR TODAY, THAT A BINDLE OF HAIR AND FIBER THAT WAS REMOVED FROM THE HAT, THE BUNDY HAT, UMM, IN ALBANY BY DR. LEE AND WAS SENT BACK AND RECEIVED AT THE SID LABORATORY, WAS SUBSEQUENTLY LOST. AND MR. MORTON WAS UNABLE REVIEW THAT AND THE PROSECUTION HAS BEEN UNABLE TO PRODUCE IT AND WE THINK THAT RAISES AN ARIZONA VERSUS YOUNGBLOOD QUESTION BECAUSE THAT HAT CONTAINED NEGROID HAIRS THAT WERE INCONSISTENT WITH MR. SIMPSON WHICH WE THINK IS POTENTIALLY EXCULPATORY EVIDENCE AND WOULD MERIT RELIEF. WITH RESPECT TO THE LABORATORY PAGES AND THE SETS DOCUMENTS, PARTICULARLY THE SETS DOCUMENTS, LET ME ADDRESS THAT BRIEFLY. THE PROBLEM THERE, YOUR HONOR, IS THAT WE HAVE BEEN ASKING REPEATEDLY FROM THE VERY BEGINNING OF THIS CASE FOR ALL COMPUTERIZED RECORDS DEALING WITH THE CHAIN OF CUSTODY WHEN THESE ITEMS WERE BOOKED FROM THE VERY BEGINNING. WE GOT PROPERTY REPORTS INITIALLY, THEN WE GOT WITH DATES THAT WERE ALL PLAINLY INCONSISTENT WITH THE FACTS, THEN WE GOT A COMPUTERIZED PRINTOUT A FEW MONTHS AGO, MAYBE FIVE OR SIX MONTHS AGO, THAT LISTED -- JUST INDICATED WHEN THINGS WERE OFFICIALLY BOOKED. TOOK A LONG TIME TO FIGURE OUT THAT WHAT MEANT. APPARENTLY IT REPRESENTED THE DATES THAT THINGS ENTERED THE APIMS SYSTEM, I BELIEVE THE APIMS SYSTEM AS OPPOSED TO THE SETS SYSTEM. AS THE COURT RECALLS, THE SETS SYSTEM IS A COMPUTERIZED TRACKING SYSTEM WITHIN SID AND THE APIMS SYSTEM IS THE COMPUTERIZED TRACKING SYSTEM THAT I GUESS COVERS THE LOS ANGELES POLICE DEPARTMENT. WE FINALLY RECEIVED, WITH THE COURT'S -- THROUGH THE COURT'S GOOD OFFICES AND THE EFFORTS OF MR. HODGMAN AND MR. YOCHELSON, I THINK ABOUT TWO WEEKS AGO OR A WEEK AGO REALLY, A SET OF SETS PAPERS FOR CERTAIN KEY ITEMS THAT WE SPECIFIED BECAUSE WE WANTED TO GET WHAT WE COULD GET. BUT WHEN YOU LOOK AT THOSE ITEMS, WHAT IT REPRESENTS IS EVERY TIME A PACKAGE IS TAKEN FROM ONE AREA OF THE LABORATORY TO ANOTHER, PEOPLE HAVE TO HIT THEIR BAR CODES AND THEN IT INDICATES WHETHER SOMETHING IS IN TRANSIT.
THE PROBLEM IS THAT IN ORDER TO FIGURE OUT WHAT HAPPENED TO EACH ITEM OF EVIDENCE, ONE HAS TO GO BACK THROUGH THE VOLUMINOUS TESTING RECORD AND TRY TO FIGURE OUT WHAT WAS BEING TESTED OR HANDLED AT A PARTICULAR TIME, BECAUSE WHAT THEY ARE TRACKING ARE -- THEY WILL PUT LIKE SEVEN OR EIGHT BAGS OR A WHOLE BUNCH OF ENVELOPES INTO ONE BIG BOX. THEN SOMEBODY IN THE SEROLOGY LAB MAY GO IN AT VARIOUS DIFFERENT OCCASIONS AND TEST CERTAIN THINGS OR NOT, AND IN ORDER TO FIGURE OUT WHO HAD ACCESS AND WHERE IT WENT AND HOW, IS AN EXTRAORDINARILY COMPLICATED TASK. THIS IS NOT A SYSTEM THAT IS SET UP AS MANY OTHERS ARE, IN A SENSIBLE FASHION WHERE YOU CAN HAVE ONE SET OF DOCUMENTS COMPUTERIZED OR OTHERWISE, TO FIGURE OUT IN ORDER ONE ITEM AT ONE TIME, WHEN IT WAS TAKEN, ET CETERA, ET CETERA. THIS IS A NIGHTMARE TO TRY TO TRACK THROUGH THEIR EVIDENCE. WE SHOULD HAVE HAD THIS EVIDENCE A LONG TIME TO GO TO FIGURE OUT WHAT WE ARE DEALING WITH AND TRACK THESE THROUGH, AND IT IS LATE DISCLOSURE WE FEEL. AND FRANKLY, WE HAVEN'T HAD ANY MEANINGFUL DISCLOSURE AS FAR AS THE APIMS RECORDS ARE CONCERNED. THEY JUST HANDED US THIS HUGE, INCOMPREHENSIBLE SHEETS OF DOCUMENTS. IT SEEMS TO US MERITS AN INSTRUCTION TO THE JURY THAT THE PROSECUTION HAS FAILED IN ITS DISCOVERY OBLIGATIONS WITH RESPECT TO THESE CHAIN OF CUSTODY DOCUMENTS, THEY WERE NOT TURNED OVER IN A TIMELY FASHION, AND THAT THE JURY CAN CONSIDER THAT WITH RESPECT TO WHAT JUDGMENTS THEY CAN MAKE ABOUT WHETHER CHAIN OF CUSTODY WAS PROPERLY COMPLIED WITH. AND WE'LL SUBMIT THAT REQUEST TO YOU IN WRITING A FORMAL REQUEST FOR AN INSTRUCTION. BUT THE MOST PRESSING MATTER IS THIS VIDEOTAPE, WHICH I UNDERSTAND THE COURT HAS VIEWED. WE HAVE BEEN ASKING FOR THIS VIDEOTAPE FOR MONTHS BECAUSE A LONG TIME AGO WE SAW ON A TELEVISION NEWS CLIP A PICTURE OF SOMEBODY TAKING THIS VIDEOTAPE AT ROCKINGHAM. IN VIEWING THIS VIDEOTAPE, AS I'M SURE THE COURT NOTES, THERE IS A TIME ON IT THAT INDICATES WHEN --
DATE AND TIME. WE HAVE BEEN INFORMED BY THE PROSECUTORS, WELL, DISREGARD THAT DATE AND TIME, IT IS NOT CORRECT. THEY FAILED TO CHANGE THE CAMERA WHEN THEY SHIFTED OVER TO NEW TIMES -- NEW TIME PERIOD. BUT WHETHER IT IS THE --
DAYLIGHT SAVINGS. WHETHER IT WAS THE TIME THAT IT PURPORTS TO BE ON THE CAMERA OR WHETHER IT IS DISCOUNTED OR MOVED AHEAD BY AN HOUR BY VIRTUE OF DAYLIGHT SAVINGS TIME, THERE ARE CONFLICTS THAT WE CAN SEE WITH RESPECT TO, UMM, WHICH PEOPLE ARE SEEN AT DIFFERENT LOCATIONS AND THE DOCUMENT THAT WE HAVE IN TERMS OF WHEN DIFFERENT SEARCHES WERE CONDUCTED.
PERHAPS MOST IMPORTANT OF ALL, WHAT DOES THIS VIDEOTAPE REPRESENT? WE WANT TO TAKE TESTIMONY AT A HEARING FROM THE PEOPLE WHO MADE IT AS TO WHAT THEY WERE -- WHAT THEY WERE TAPING, WHO DIRECTED THEM TO DO THE TAPING, WHAT THEY THOUGHT THEY WERE TAPING, WERE THEY TAPING THE ROCKINGHAM RESIDENCE AND ALL THE VARIOUS DIFFERENT ROOMS AS IT WAS BEFORE ANY SEARCHES WERE CONDUCTED? WHAT SEARCHES HAD BEEN CONDUCTED BEFORE THIS TAPE WAS TAKEN? IS THIS SOME KIND OF AN INVENTORY TAPE? WAS THIS A TAPE THAT WAS TAKEN TO MEMORIALIZE WHERE VARIOUS DIFFERENT PIECES OF EVIDENCE WERE? THAT IS A QUESTION THAT WE SHOULD HAVE BEEN ABLE TO EXPLORE AT THE SUPPRESSION HEARINGS IN TERMS OF THE LEGALITY OF THE SEARCHES, BE ABLE TO -- THIS TAPE MAY SUGGEST THAT SEARCHES WERE PERFORMED EVEN BEFORE THE SEARCH WARRANT ISSUED. IT GOES TO THE NATURE IN WHICH THE SEARCH WAS EXECUTED AND THE CONTENTIONS ABOUT GENERAL SEARCH THAT WERE RAISED AT THAT HEARING. MORE IMPORTANTLY, FOR THE UPCOMING COLLECTION WITNESSES, THE LOCATION OF VARIOUS ITEMS.
WELL, MR. SCHECK, LET ME ASK YOU THIS: DO WE NEED A HEARING TO DO THIS? WHY DON'T WE JUST HAVE THE PROSECUTION IDENTIFY WHO THE CAMERA PERSON WAS AND MAKE THAT PERSON AVAILABLE FOR YOU TO INTERVIEW HIM? I MEAN, WHY DO I HAVE TO TAKE UP COURT TIME THAT I COULD OTHERWISE USE WITH THE JURY?
WELL, WE WOULD LIKE, YOUR HONOR -- WELL, FIRST OF ALL, I THINK THAT WHAT WE WANT IS THAT TESTIMONY UNDER OATH AT THIS POINT BECAUSE WE SEE CONTRADICTIONS AND WE THINK SERIOUS ISSUES. I WILL GIVE YOU A SIMPLE EXAMPLE. AS I'M SURE THE COURT SAW WITH GREAT INTEREST, AT ONE POINT DURING THE COURSE OF THIS VIDEOTAPE THE CAMERA PANS OVER THE MASTER BEDROOM AND SHOWS THOSE STRAPS THAT APPARENTLY WERE MOVED AROUND AT SOME POINT IN TIME ON THE BED, AND THEN JUST AT THE POINT WHERE IT IS ABOUT TO SHOW THE SOCKS, A VERY CRITICAL PIECE OF EVIDENCE IN THIS CASE AND WHERE THEY WERE AT WHATEVER TIME THIS TAPE WAS TAKEN, THE CAMERA CUTS ALL OF A SUDDEN AND MOVES TO A NEW POSITION. WE ARE VERY INTERESTED IN WHY THAT HAPPENED. ALSO, THE STATE OF AFFAIRS IN THE BATHROOM AND IN OTHER ROOMS, WHAT WAS LYING AROUND, WHERE IT WAS, WHAT KNOWLEDGE THESE PEOPLE HAVE OF THAT, THAT IS SOMETHING THAT WE THINK SHOULD BE TAKEN UNDER OATH, THAT KIND OF TESTIMONY, SO WE CAN HAVE THAT AND USE THAT.
ALL RIGHT. WELL, MR. SCHECK, LET ME ASK YOU THIS: YOUR LETTER TO THE COURT REGARDING THIS VIDEOTAPE WAS ASKING FOR SANCTIONS, BUT YOU DID NOT SPECIFY WHAT SANCTIONS YOU ARE SEEKING WITH REGARD TO THE LATE DISCLOSURE OF THE TAPE.
THAT IS PRECISELY THE POINT. WE DON'T KNOW, UNTIL WE MAKE INQUIRY OF HOW THIS TAPE WAS CREATED, WHO WAS LEADING AROUND THE PERSON THAT WAS DOING THE TAPE, WHAT INSTRUCTIONS THEY HAD, WHAT THE CIRCUMSTANCES OF THIS WERE. WE WON'T KNOW WHAT PRECISELY THE DIMENSIONS OF THE PREJUDICE ARE, WHETHER THIS TAPE HELPS US IN CERTAIN AREAS, AS MUCH AS WE THINK IT MIGHT, WHETHER OR NOT IT IS SOMETHING THAT THE PROSECUTION SHOULD BE PRECLUDED FROM USING PARTS OR ANY OF IT. WE DON'T REALLY KNOW. IN ORDER TO FIGURE OUT THE DIMENSIONS OF THE PREJUDICE HERE, WE HAVE TO HAVE A HEARING BECAUSE IT IS VERY HARD FOR US TO FIGURE OUT EVEN THE TIME THAT THIS TAPE WAS TAKEN, MUCH LESS THE IMPACT IT HAS ON SEARCH QUESTIONS AND ALSO ON THE UPCOMING TESTIMONY OF THE WITNESSES WHO SEIZE THINGS AT ROCKINGHAM. THAT IS OUR PROBLEM. AND WE WANT THAT UNDER OATH. I MEAN, I WOULD LIKE TO ACCOMMODATE THE COURT IN TERMS OF THE JURY TIME. THAT IS WHY I WAS PERHAPS INAPPROPRIATELY PRESSING THE COURT TO CONSIDER THIS ISSUE YESTERDAY, BUT WE ARE VERY SERIOUS ABOUT THIS. WE THINK THIS IS A VERY SERIOUS DISCOVERY VIOLATION.
I CAN POINT OUT TO THE COURT THAT THERE IS PANNING OF THAT GARAGE AREA AND THE DOOR, OBJECTS NEAR THAT DOOR. THAT IS SOMETHING THAT THE DEFENSE SHOULD HAVE KNOWN WHEN IT WAS CROSS-EXAMINING DETECTIVE LANGE ABOUT PICTURES OF THAT. IT IS SOMETHING THAT THE DEFENSE SHOULD HAVE BEEN ABLE TO SEE IN CROSS-EXAMINING DETECTIVE VANNATTER AND OTHERS IN THE TRIAL. MR. KAELIN, ABOUT THAT WHOLE GENERAL -- WHAT WAS THE STATE OF OBJECTS IN THAT ROCKINGHAM ADDRESS AT A PARTICULAR TIME IS SOMETHING THAT WE WERE ENTITLED TO KNOW AT THE SUPPRESSION HEARINGS AND BEFORE THIS TRIAL STARTED. AND WE ASKED FOR THIS TAPE NUMEROUS TIMES AND IT WAS SUPPRESSED. THE CIRCUMSTANCES OF WHY IT WASN'T TURNED OVER, I THINK, ARE ALSO EXTREMELY RELEVANT IN TERMS OF WHAT SANCTIONS THE COURT MIGHT WANT TO IMPOSE, AND I THINK WE NEED TO HAVE TESTIMONY AS FAR AS THAT IS CONCERNED. SO WE ARE --
YOUR HONOR, ACTUALLY MR. GOLDBERG IS GOING TO ADDRESS THE COURT FIRST TO SET FORTH THE LAW AND TALK ABOUT THE OTHER DOCUMENTARY ITEMS. I'M GOING TO DEAL WITH THE VIDEOTAPE. SO IF YOU DON'T MIND, WE CAN TAKE THEM IN REVERSE ORDER.
YOUR HONOR, I HAD A CONVERSATION WITH DETECTIVE LUPER OF THE LOS ANGELES POLICE DEPARTMENT YESTERDAY WHO WAS THE DETECTIVE RESPONSIBLE FOR THE EXECUTION OF THE SEARCH WARRANT ON JUNE 13TH AT THE DEFENDANT'S RESIDENCE AT ROCKINGHAM. I BELIEVE DETECTIVES VANNATTER AND LANGE WERE DOWNTOWN WITH MR. SIMPSON DURING THAT PERIOD OF TIME AND THAT IS WHY HE WAS RESPONSIBLE FOR IT. THAT VIDEOTAPE, AS YOUR HONOR HAS SEEN, I GUESS SEVERAL TIMES NOW, DEPICTS THE PREMISES IN AND ABOUT THE HOUSE, VERY BRIEFLY, AND ALL OF THE VALUABLE ITEMS, INCLUDING THE MANY TROPHIES AND PLAQUES AND AWARDS AND SO FORTH WITHIN THE HOUSE, AS WELL AS THE FURNITURE, PAINTINGS, OTHER ITEMS OF VALUE, AND WAS TAKEN AS PART OF LAPD'S ONGOING POLICY TO VIDEOTAPE LOCATIONS WHERE SEARCH WARRANTS ARE EXECUTED.
IT IS A POLICY THAT CAME INTO IMPLEMENTATION, I AM INFORMED, BECAUSE OF THE 39TH AND DALTON LAWSUITS WHICH HAPPENED A FEW YEARS AGO, SEVERAL YEARS AGO NOW. SO THAT THE POLICY OF THE POLICE DEPARTMENT IS TO TAKE A VIDEOTAPE FOR THEIR OWN CIVIL LIABILITY ADMINISTRATIVE PURPOSES TO MAKE SURE THAT THEY DON'T HAVE CLAIMS AGAINST THEM LATER THAT THEY HAVE STOLEN PROPERTY OR THAT THEY HAVE TRASHED PREMISES. THAT WAS THE WHOLE REASON WHY THIS PARTICULAR TAPE WAS TAKEN. THE TAPE SHOWS THE SAME LOCATIONS THAT ARE SHOWN IN PHOTOGRAPHS. THE DEFENSE HAS HAD PHOTOGRAPHS OF THE INTERIOR OF ROCKINGHAM FOR MONTHS AND MONTHS. THOSE PHOTOGRAPHS SHOW ALMOST THE IDENTICAL THINGS THAT ARE SHOWN ON THE VIDEOTAPE, EXCEPT THE EMPHASIS WITH THE VIDEOTAPE IS ON THE VALUE OF VARIOUS ITEMS BECAUSE IT WAS TAKEN WITH THAT PURPOSE IN MIND.
SO ARE YOU INDICATING TO THE COURT THAT THIS WAS TAKEN BY SOME LAPD PHOTOGRAPHER OR VIDEOGRAPHER?
YES. IT WAS TAKEN BY -- IF THE COURT RECALLS, THERE IS A GENTLEMAN IN A SUIT IN THERE WHO I DIDN'T RECOGNIZE, APPARENTLY A SUPERVISOR FROM SID, WHO WAS THERE WHO CAME OUT WITH A -- WHATEVER YOU CALL SOMEBODY LIKE THAT NOW -- VIDEOGRAPHER, SPECIFICALLY FOR THE PURPOSE OF CAPTURING THOSE THINGS BECAUSE OF CIVIL -- POTENTIAL CIVIL LIABILITY, WHICH THE LOS ANGELES POLICE DEPARTMENT OCCASIONALLY EXPERIENCES WHEN IT GETS SUED OVER MATTERS HAVING TO DO WITH THE EXECUTION OF SEARCH WARRANTS. SO THAT WAS AN ADMINISTRATIVE TAPE TAKEN FOR THAT REASON AND IT WAS A DIFFERENT -- I WILL JUST FINISH THE SENTENCE -- I SEE YOU ARE ABOUT TO INQUIRE -- BUT IT WAS TAKEN BY A DIFFERENT PERSON THAN THE PERSON WHO WENT THROUGH AND DID THE PHOTOS. AND IT IS ALSO EVIDENT THAT THIS WAS AN ADMINISTRATIVELY-TAKEN VIDEOTAPE ITSELF AUTHENTICATING IN THAT RESPECT BECAUSE OF IMPORTANCE. IT DOES NOT SHOW THE BLOOD ON THE FOYER, THE BLOOD ON THE DRIVEWAY, THE PATHWAY.
THERE ARE TWO -- IT DOES LOOK DOWN AT WHAT APPEARS TO ME TO BE TWO OF THE BLOOD SPOTS IN THE FOYER.
WELL, I CERTAINLY TRUST YOUR HONOR'S PERCEPTION THEN. BUT THE POINT IS IT DID NOT GO DOWN THE PATHWAY, IT WAS NOT MEANT TO AND DID NOT RECORD THE SCENE AS A CRIME SCENE, DID NOT RECORD THE MOST PERTINENT ASPECTS OF IT.
FORGIVE ME FOR INTERRUPTING YOU, MISS LEWIS, BUT THE ISSUE I'M INTERESTED IN IS WHO TOOK IT AND WHY WASN'T IT TURNED OVER EARLIER.
IT WAS TAKEN AT DETECTIVE LUPER'S DIRECTION, AS I MENTIONED. IT WAS GIVEN TO HIM THE FOLLOWING DAY. HE THREW IT IN A DRAWER KNOWING THAT IT WAS GOING TO BE FOR ADMINISTRATIVE PURPOSES. IT DIDN'T OCCUR TO HIM TO SEEK TO MAKE IT PART OF THE DISCOVERY TYPE OF MATERIALS IN THE CASE.
KEY QUOTEALL RIGHT. LET ME ASK YOU ONE OTHER QUESTION. DURING SOME OF THE NEWS COVERAGE OF THE SEARCH AT THE ROCKINGHAM RESIDENCE, LONG BEFORE I HAD ANY INVOLVEMENT IN THIS CASE, I DID SEE SOME NEWS COVERAGE IN THE -- WHAT I NOW RECOGNIZE AS THE POOL AREA, THE TAPE, WROUGHT IRON TABLE OUT BY THE POOL AREA, OF A PERSON THAT I RECOGNIZED AS A DISTRICT ATTORNEY PHOTOGRAPHER WHO WAS CARRYING A FULL-SIZED VHS CAMCORDER.
I BELIEVE SO BECAUSE I KNOW THIS WAS AN SID PERSONNEL ON THE 13TH AND I BELIEVE THE DEFENSE HAS HAD DISCOVERY ON THAT JUNE 28TH VIDEOTAPE.
SO WHAT WE ARE TALKING ABOUT HERE IS SOMETHING THAT WAS AFTER DETECTIVE LUPER THREW IT IN HIS DRAWER. AT SOME POINT AFTER THAT LAPD MADE AVAILABLE TO RHD AN ADDITIONAL ROOM TO BE SET ASIDE FOR THIS CASE ALONE. I WAS JUST GOING TO GIVE THE COURT WHAT HAPPENED TO THE TAPE AFTER HE THREW IT IN HIS DRAWER. HE --
MISS LEWIS, DO YOU AGREE THAT PERHAPS THE DEFENSE IS ENTITLED THEN TO INQUIRE OF BOTH DETECTIVE LUPER AND THE VIDEOGRAPHER AS TO THE FACTS AND CIRCUMSTANCES REGARDING BOTH THE CREATION OF THE TAPE AND AN EXPLANATION AS TO WHERE IT HAS BEEN FOR THE LAST SEVEN MONTHS?
I THINK THAT IS A REASONABLE THING FOR THEM TO DO. WE WILL MAKE DETECTIVE LUPER AVAILABLE, ASSUMING HE IS WORKING TOMORROW MORNING, IT IS FRIDAY, I'M NOT SURE, BUT WE WILL MAKE HIM AVAILABLE TOMORROW MORNING AND THE SAME WITH THE OTHER PERSON THAT CAN SPEAK TO HIM. THEY ARE VERY FORTHCOMING, FORTHRIGHT INDIVIDUALS. THERE IS NO REASON TO TIE UP THIS COURT'S VALUABLE TIME WITH A SEQUESTERED JURY TO HAVE A HEARING, SOME KIND OF A FORMAL HEARING ON IT. IT IS REALLY NOT NECESSARY, YOUR HONOR, AND I -- THE DEFENSE CAN EASILY SATISFY THEIR QUESTIONS IN THAT AREA, QUESTIONING WITH DETECTIVE LUPER. AND IN FACT THERE IS ONE ASPECT THAT MR. SCHECK DIDN'T MENTION, BUT THE -- WHAT WE NOTICED ABOUT THE VIDEOTAPE WAS A GLOVE THAT SHOWS UP IN THE VIDEOTAPE MORE DISTINCTLY THAN IT DOES IN THE PHOTOGRAPHS AND THERE IS AN EXPLANATION FOR THAT THEY HAVE NOT INQUIRED ABOUT IT, SO I WON'T TELL THEM, BUT DETECTIVE LUPER CERTAINLY CAN TELL THEM THAT. AND I DON'T WANT TO TAKE UP THE COURT'S TIME. I DON'T MEAN TO BE MYSTERIOUS, BUT I AM SATISFIED MYSELF FROM LOOKING AT THE VIDEOTAPE BY ASKING DETECTIVE LUPER CERTAIN THINGS ABOUT CERTAIN THINGS THAT I SAW IN THERE, AND I THINK THE COURT -- THE DEFENSE CAN SATISFY THEMSELVES MORE EASILY SO PROBABLY BY DOING IT INFORMALLY WITH THE DETECTIVE AND WITH THE OTHER PERSON THAN IN A FORMAL COURT HEARING.
YES, YOU WILL. LET ME JUST FINISH THE VIDEOTAPE FIRST AND LET'S GET THAT OUT OF THE WAY.
MR. SCHECK, THE ONLY THING I'M INTERESTED IN FROM YOU AT THIS POINT IS WHY DO YOU FEEL IT IS NECESSARY TO HAVE A HEARING UNDER OATH AT THIS POINT IF THE PROSECUTION IS WILLING TO MAKE THESE PEOPLE AVAILABLE TO YOU FIRST TO INTERVIEW? BECAUSE MY SUGGESTION TO YOU IS THAT I'M GOING TO DIRECT THE PROSECUTION TO MAKE THEM AVAILABLE TO YOU TOMORROW, IF THEY ARE ON DUTY AND AVAILABLE, AND AFTER TAKING STATEMENTS FROM THEM, IF YOU FEEL A FURTHER HEARING IS NECESSARY WITH TESTIMONY UNDER OATH, I WILL ACCOMMODATE YOU THEN, BUT I WOULD LIKE TO DO IT THE EASY WAY FIRST RATHER THAN HAVING TO -- I DON'T WANT TO NECESSARILY USE UP MY COURT TIME.
WELL, I THINK THAT THE -- THE ONLY PROBLEM IS THAT WE CAN'T BE IN TWO PLACES AT THE SAME TIME, AND I SUSPECT THAT THE NEXT WITNESS IS MR. FUNG AND WE WOULD LIKE TO KNOW WHAT THESE PEOPLE ARE GOING TO SAY ABOUT THE CIRCUMSTANCES OF THE TAPE. AND IF WE HAD EVEN LEARNED ABOUT IT ANYTIME EARLIER, WE COULD HAVE TAKEN UP THE COURT'S SUGGESTION. THE PROBLEM IS, IS THAT THIS IS DIRECTLY RELEVANT TO THE TESTIMONY WE ARE ABOUT TO HEAR.
I AM INFORMED THAT AN EMPLOYEE AT MR. SIMPSON'S RESIDENCE TESTIFIED AT THE 1538.5 HEARING THAT SHE SAW SOMEBODY THERE DOING A VIDEOTAPE, SO THIS WAS ANOTHER REASON THAT WE HAVE ALWAYS MAINTAINED THAT THERE WAS SUCH A TAPE AND I THINK THEY ARE ON NOTICE OF IT.
ALL RIGHT. LET'S DO THIS THEN: LET'S ORDER DETECTIVE LUPER AND THE VIDEOGRAPHER HERE TOMORROW MORNING AT 8:30.
OKAY. BUT IF WE HAVE EVERYBODY HERE, THOSE THREE PERSONS INVOLVED HERE TOMORROW MORNING AT 8:30. COUNSEL BE HERE AT 8:30. WE WILL JUST HAVE AN INFORMAL INTERVIEW.
IF YOU FEEL, AFTER INQUIRING OF THEM, THAT A FORMAL HEARING IS NECESSARY, I WILL ENTERTAIN IT AT THAT TIME. BUT I SUSPECT -- MR. GOLDBERG, ARE YOU GOING TO BE HANDLING THE DIRECT EXAMINATION OF MR. FUNG?
AND JUST OUT OF CURIOSITY, CHRONOLOGICALLY WHERE DO YOU INTEND ON STARTING YOUR EVIDENCE COLLECTION SAGA?
I WAS AFRAID OF THAT. OKAY. WELL, I GUESS WE NEED TO RESOLVE THIS ISSUE FIRST. ALL RIGHT. TOMORROW MORNING AT 8:30 WITH THE THREE PERSONS AVAILABLE.
ALL RIGHT. AND MISS LEWIS, I GIVE YOU LEAVE TO USE THE COURT PHONE RIGHT NOW. LET'S MAKE SURE WE GET THESE PEOPLE.
ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. MR. GOLDBERG, AS TO THE APIMS, SETS, ET CETERA.
THANK YOU, YOUR HONOR. YOUR HONOR, BEFORE GETTING DIRECTLY INTO THE FACTS REGARDING THIS APIMS AND SETS ISSUE AND ALSO THE OTHER ISSUE RAISED BY COUNSEL WHICH RELATES TO THESE NEW "L" NUMBERS AND THE LABORATORY REPORTS, I JUST WANTED TO DISCUSS GENERAL PRINCIPLES OF CALIFORNIA DISCOVERY LAW AS WE UNDERSTAND THEM NOW IN A POST PROPOSITION 115 ENVIRONMENT, BECAUSE I THINK THAT THEY WILL BE HELPFUL TO THE COURT IN RESOLVING NOT ONLY THESE ISSUES, BUT PERHAPS THE ISSUE ABOUT THE VIDEOTAPE, AS WELL AS OTHER DISCOVERY ISSUES THAT ARE GOING TO ARISE THROUGHOUT THESE PROCEEDINGS BASED UPON THE HISTORY OF THINGS THAT HAVE GONE ON TODAY. FIRST OF ALL, THE PEOPLE'S DISCOVERY OBLIGATION NOW, AS I UNDERSTAND IT, IS LIMITED TO ESSENTIALLY TWO SOURCES. NO. 1 IS THE CONSTITUTION OF THE UNITED STATES. WE HAVE TO PROVIDE EXCULPATORY MATERIALS, SO-CALLED BRADY MATERIALS, AND THE SECOND SOURCE IS THE PENAL CODE, 1054 OF THE CALIFORNIA PENAL CODE. AND THEREFORE, IN ANY DISCOVERY ISSUE THAT IS BEFORE A JUDGE NOW IN A POST PROPOSITION 115 ENVIRONMENT, THERE IS ESSENTIALLY A TWO-STAGE ANALYSIS THAT THE COURT MUST GO THROUGH. ONE IS TO LOOK AT THE ISSUE OF WHETHER OR NOT IT IS EXCULPATORY WITHIN THE MEANING OF BRADY, AND THE SECOND THEN IS TO GO SYSTEMATICALLY THROUGH THE PENAL CODE AND MECHANICALLY APPLY WHAT HAS BEEN SET DOWN BY THE PEOPLE OF THE STATE OF CALIFORNIA THROUGH THE INITIATIVE PROCESS AS THE LAW OF THE STATE. NOW, I WOULD LIKE TO ADDRESS FIRST THIS ISSUE OF WHAT IS EXCULPATORY EVIDENCE AND CITE A COUPLE CASES TO THE COURT WHICH YOUR HONOR IS PROBABLY ALREADY FAMILIAR WITH AND COUNSEL. DON'T WORRY, IT IS NOT THE ENTIRE NOTEBOOK HERE, BUT I -- WE WILL DO THAT LATER ON THIS AFTERNOON. BUT THEY DO SET FORTH A DEFINITION OF "EXCULPATORY" THAT I DON'T THINK WE ARE REALLY THAT FAMILIAR WITH HERE IN CALIFORNIA, BECAUSE PRIOR TO PROPOSITION 115 WE BASICALLY DID FOLLOW RULES THAT WERE JUDICIOUSLY CREATED AND THOSE DISCOVERY RULES WERE ESSENTIALLY THAT WE WOULD JUST HAVE TO TURN OVER EVERYTHING THAT WE HAD IN OUR CASE FILE, UNLESS IT WAS SOMEHOW PRIVILEGED, SO THE GENERAL RULE WAS YOU GIVE IT OVER UNLESS THERE IS SOME SPECIFIC REASON WHY IT IS PRIVILEGED. BUT THAT IS NOT WHAT THE UNITED STATES CONSTITUTION REQUIRES, AND ONE CASE THAT DISCUSSES THIS IS CALIFORNIA VERSUS TROMBETTA, THE UNITED STATES SUPREME COURT CASE THAT THE COURT IS FAMILIAR WITH AT 104 SUPREME COURT REPORTER, AND I'M LOOKING AT PAGE 2534. THE COURT IS PROBABLY FAMILIAR WITH THIS IN THE CONTEXT OF WHAT WE CALL IN OUR STATE HITCH MOTIONS WHERE A PIECE OF EVIDENCE HAS BEEN INTENTIONALLY OR NEGLIGENTLY DESTROYED, BUT THEY ALSO DISCUSS DISCOVERY OBLIGATIONS AND THEY SAY THAT THE DEFINITION OF MATERIALITY FOR THE PURPOSES OF DETERMINING WHAT IS DISCOVERABLE IS THE SAME IN THE CONTEXT OF WHAT WE CALL A HITCH MOTION AS IT IS IN THE CONTEXT OF BRADY MATERIAL. AND WHAT THEY SAID THERE IS THAT: "WHATEVER THE DUTY THE CONSTITUTION IMPOSES ON THE STATES TO PRESERVE EVIDENCE, THAT DUTY MUST BE LIMITED TO EVIDENCE THAT MIGHT BE EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE SUSPECT'S DEFENSE." AND THEN THEY HAVE A FOOTNOTE AND IN FOOTNOTE 8 THEY SAY: "IN OUR PROSECUTORIAL DISCLOSURE CASES WE HAVE IMPOSED A SIMILAR REQUIREMENT OF MATERIALITY AND WE HAVE REJECTED THE NOTION THAT A PROSECUTOR HAS A CONSTITUTIONAL DUTY TO ROUTINELY DELIVER HIS ENTIRE PILE TO THE DEFENSE COUNSEL. WE KNOW OF NO CONSTITUTIONAL REQUIREMENT THAT THE PROSECUTION MAKE A COMPLETE AND DETAILED ACCOUNTING TO THE DEFENSE OF ALL POLICE INVESTIGATORY WORK ON A CASE." SO THE CONSTITUTION DOES NOT REQUIRE US TO TURN EVERYTHING OVER. IT DOES NOT REQUIRE US TO EMPTY OUT OUR FILES, AS WAS DONE IN THE POST PROP -- PRE PROPOSITION 115 ENVIRONMENT. SO WE KNOW THAT MATERIALITY DOES NOT MEAN YOU EMPTY OUT YOUR CASE FILE AND GIVE EVERYTHING THAT IS NOT PRIVILEGED TO THE DEFENSE. IN ORDER TO DECIDE WHAT IT DOES MEAN, WE HAVE OR CONTINUE ON WITH SOME OF THE CASES, AND NEXT I CALL TO THE COURT'S ATTENTION TO ANOTHER FAIRLY WELL-KNOWN UNITED STATES SUPREME COURT CASE, U.S. VERSUS AGURS AT 96 SUPREME COURT REPORTER 2392 AND I'M LOOKING AT PAGE 2400. THERE THE UNITED STATES SUPREME COURT SAYS: "THE COURT OF APPEALS APPEARS TO HAVE ASSUMED THAT THE PROSECUTOR HAS A CONSTITUTIONAL OBLIGATION TO DISCLOSE ANY INFORMATION THAT MIGHT AFFECT THE JURY'S VERDICT. THAT STATEMENT OF A CONSTITUTIONAL STANDARD OF MATERIALITY APPROACHES THE SPORTING THEORY OF JUSTICE WHICH THE COURT EXPRESSLY REJECTED IN BRADY. FOR A JURY'S APPRAISAL OF A CASE MIGHT BE AFFECTED BY AN IMPROPER OR TRIVIAL CONSIDERATION AS WELL AS BY EVIDENCE, GIVING A RISE TO LEGITIMATE DOUBT ON THE ISSUE OF GUILT."
IT IS ONE OF MY FAVORITE, TOO, NOW, YOUR HONOR. "IF EVERYTHING THAT MIGHT INFLUENCE THE JURY MUST BE DISCLOSED, THE ONLY WAY A PROSECUTOR COULD DISCHARGE HIS CONSTITUTIONAL DUTY WOULD BE TO ALLOW COMPLETE DISCOVERY OF HIS FILES AS A MATTER OF ROUTINE PRACTICE. WHETHER OR NOT PROCEDURAL RULES AUTHORIZING SUCH BROAD DISCOVERY MIGHT BE DESIRABLE, THE CONSTITUTION SURELY DOES NOT DEMAND THAT MUCH." THEY WENT ON ON THE SAME PAGE FURTHER ON IN ANOTHER PARAGRAPH: "THE MERE POSSIBILITY THAT AN ITEM OF UNDISCLOSED INFORMATION MIGHT HAVE HELPED THE DEFENSE OR MIGHT HAVE AFFECTED THE OUTCOME OF A TRIAL DOES NOT ESTABLISH MATERIALITY IN A CONSTITUTIONAL SENSE." SO WHAT WE ARE ESSENTIALLY TOLD IN THIS CASE IS WE ARE TALKING ABOUT SUBSTANTIAL EVIDENCE THAT MIGHT CAUSE A REASONABLE OBJECTIVE FACT-FINDER TO FIND A REASONABLE DOUBT AND THAT IS THE WAY IT IS ALSO DEFINED IN CALIFORNIA CASE LAW WHERE THE COURT IS PROBABLY FAMILIAR WITH THE PHRASE "SUBSTANTIAL MATERIAL EVIDENCE" AS BEING THE SORT OF SLOGAN THAT WE USE TO DESCRIBE WHAT IS DISCOVERABLE. AND IN PEOPLE VERSUS GONZALEZ AT 179 CAL.APP.3D 566, THEY TALK ABOUT THIS STANDARD OF SUBSTANTIAL MATERIAL EVIDENCE IN TERMS OF EVIDENCE THAT IS EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE DEFENSE AND THEY SAY IN THAT CASE CITING TROMBETTA. TROMBETTA PUT IT THIS WAY: "WHATEVER DUTY THE CONSTITUTION IMPOSES ON THE STATES TO PRESERVE EVIDENCE, THAT DUTY MUST BE LIMITED TO EVIDENCE THAT MIGHT BE EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE SUSPECT'S DEFENSE TO MEET THE STANDARD OF CONSTITUTIONAL MATERIALITY," AND THEN THEY CONTINUE ON FURTHER DOWN IN THAT SAME PARAGRAPH: "IN OUR PROSECUTORIAL DISCLOSURE CASES WE HAVE IMPOSED A SIMILAR REQUIREMENT OF MATERIALITY AND HAVE REJECTED THE NOTION THAT THE PROSECUTOR HAS A CONSTITUTIONAL DUTY TO ROUTINELY DELIVER HIS ENTIRE FILE OVER TO DEFENSE COUNSEL." SO WE BASICALLY KNOW, BASED UPON THE FEDERAL AND CALIFORNIA CASES, THAT WHEN WE ARE TALKING ABOUT MATERIALITY, WE ARE TALKING ABOUT SUBSTANTIAL MATERIAL EVIDENCE OF THE KIND THAT IS EXPECTED TO PLAY A SIGNIFICANT ROLE IN THE DEFENDANT'S DEFENSE, SUCH THAT IT WOULD CAUSE A REASONABLE -- MIGHT CAUSE A REASONABLE FINDER OF FACT, IN OTHER WORDS, AN OBJECTIVE FINDER OF FACT TO FIND A REASONABLE DOUBT. NOW, AS I UNDERSTAND IT, THE DEFENSE IN THIS CASE IS FAIRLY STRAIGHTFORWARD IN SOME WAYS. AS I UNDERSTAND IT, THE DEFENSE IS THAT DETECTIVE FUHRMAN PLANTED THE GLOVE AND THEN PERHAPS BROKE INTO THE VEHICLE, THE BRONCO, AND WIPED THE VEHICLE WITH THE GLOVE. NOW, IF THAT IS THE DEFENSE, DOES THE DEFENSE BELIEVE THAT IT IS REASONABLY POSSIBLE THAT HE TOOK THE GLOVE FROM BUNDY, DROVE IT TO PARKER CENTER, BOOKED IT INTO EVIDENCE SO THAT IT WENT THROUGH APIMS, THEN DROVE BACK OUT TO THE LOCATION AT ROCKINGHAM TO PLANT IT AND THEN WIPE IT THROUGHOUT THE BRONCO? AND THAT IF THEY ONLY HAD THE APIMS MATERIAL THEY ARE GOING TO FIND SOME EVIDENCE OF THIS? IT IS VERY DIFFICULT, WHEN YOU APPLY THIS STANDARD OF CONSTITUTIONAL MATERIALITY, TO FIGURE OUT HOW THEY CAN MAKE A LEGITIMATE ARGUMENT THAT THIS APIMS AND SETS MATERIAL FALLS WITHIN THAT DEFINITION. IN ORDER FOR THE COURT TO UNDERSTAND THIS, I WOULD JUST LIKE TO GIVE YOU A LITTLE BIT OF BACKGROUND IN TERMS OF WHAT THESE MATERIALS ARE.
WELL, BEFORE YOU DO THAT, MR. GOLDBERG, ISN'T IT CORRECT, THOUGH, THAT THE DEFENSE HAS ALREADY BEEN GIVEN A SET OF EACH OF THESE MATERIALS?
SO ISN'T THE ARGUMENT SORT OF MOOT? THEY HAVE GOT IT. THE QUESTION IS HOW IS IT INTERPRETED OR WHETHER OR NOT THERE IS ANY OTHER WAY TO LOOK AT THIS.
THEY ARE ASKING US TO REFORMAT IT, AND YOU SEE, THIS IS ONE OF THE PROBLEMS THAT WE GET, IN MY VIEW, WHEN WE GIVE THEM THINGS THAT WE ARE NOT REQUIRED TO DO UNDER THE CONSTITUTION, THAT WE ARE NOT REQUIRED TO DO UNDER THE PENAL CODE, AND I CAN TURN TO THE PENAL CODE AND ALSO SHOW HOW IT DOESN'T COME WITHIN ANY OF THE PROVISIONS OF 1054.
THE PROBLEM THAT WE GET -- GET INTO IS WE THINK THAT WE ARE BEING NICE GUYS BY JUMPING THROUGH ALL THESE HOOPS THAT THEY HAVE SET UP FOR US, AND EVERY TIME THAT WE HAVE COMPLIED WITH THESE HOOPS, THEY WILL HAVE A NEW HOOP THAT THEY WANT US TO GO THROUGH. WE WON'T ARGUE ABOUT THE APIMS, WE WON'T LITIGATE IT, WE WON'T ASK THE COURT NOT TO ARGUE IT. IT DOESN'T COME WITHIN THE CONSTITUTION, IT DOESN'T COME WITHIN 1054. WE WILL BE NICE GUYS AND WE WILL GIVE IT TO THEM. WE DID THE SAME THING WITH THE SETS MATERIAL. WE DECIDED THAT WHAT WE WERE GOING TO DO ON THE APIMS MATERIAL WAS RATHER THAN TRYING TO DECIDE WHAT THEY MIGHT WANT OR WHAT THEY MIGHT NOT WANT IS JUST GIVE THEM EVERYTHING. SO IT IS INCREDIBLY VOLUMINOUS AND IT IS THE KIND OF COMPUTER CODE, AND I DON'T KNOW THE CORRECT TERMINOLOGY FOR IT, THE ENCRYPTED TYPE STUFF THAT IS USED IN A COMPUTER TO GENERATE THE THING THAT YOU CAN READ. IT IS IN ENGLISH. MAYBE YOUR HONOR KNOWS WHAT I'M TALKING ABOUT BECAUSE I'M JUST NOT FAMILIAR WITH THE CORRECT COMPUTER TERMINOLOGY.
KEY QUOTEYES, RIGHT, SO THEY HAVE EVERYTHING. WHAT THEY ARE SAYING IS THAT THE MATERIALS THAT THEY HAVE ARE SORTED OUT CHRONOLOGICALLY, THEY ARE NOT SORTED OUT BY ITEM NUMBER.
ALL RIGHT. MR. GOLDBERG, LET ME JUST JUMP AHEAD OF YOU FOR A MOMENT. YOUR ARGUMENT IS GOING TO BE IS THAT YOUR ONLY OBLIGATION, EVEN ASSUMING THAT THESE MATERIALS MEET THE TEST OF MATERIALITY, YOUR ONLY OBLIGATION IS TO TURN IT OVER, NOT TO INTERPRET IT FOR THEM, NOT TO MAKE IT EASIER FOR THEM TO UNDERSTAND? THAT YOUR ONLY OBLIGATION IS TO TURN IT OVER? WHETHER OR NOT THEY UNDERSTAND IT IS UP TO THEM. WHETHER OR NOT IT MAKES ANY INTELLIGIBLE SENSE TO ANYBODY IS UP TO THEM. IT IS NOT YOUR OBLIGATION TO SORT IT, EXPLAIN IT AND HELP THEM DIGEST IT? THAT IS YOUR ARGUMENT, CORRECT?
IT IS EASY, AS A FORMER PROSECUTOR, THAT I CAN SORT OF GUESS THAT THAT IS WHERE YOU ARE GOING.
I DON'T MEAN TO INTERRUPT YOU, BUT SENSING WHERE YOU ARE GOING, I THOUGHT I WOULD SORT OF JUMP AHEAD.
I APPRECIATE THAT, YOUR HONOR, AND I DON'T KNOW IF THE COURT WANTS ME TO CONTINUE, IF YOU FEEL IT WOULD BE HELPFUL, TO STATE AS WHAT ACTUALLY APIMS AND SETS ARE, BECAUSE I THINK IT IS HAS BEEN SOMEWHAT OVERBILLED. THEY ARE NOT CHAIN OF CUSTODY TYPE SYSTEMS. WHAT THEY DO IS THEY ARE SOMETHING THAT WOULD BE USED BY SOMEONE WHO WANTED TO KNOW WHERE A PIECE OF EVIDENCE WAS, SO FOR INSTANCE, IF I WERE LOOKING FOR THE SOCKS, ITEM 13, AND I HAD NO IDEA WHERE IT WAS, WHERE TO START, I COULD HOPEFULLY IN APIMS FIND THAT IT HAD BEEN -- IF IT WERE SENT OUT OF LAPD AND NO LONGER IN THEIR CUSTODY, THAT IT WAS IN THE COURT'S CUSTODY. I DID FIND THAT -- THAT IS THE KIND OF INFORMATION I COULD GET THROUGH APIMS, BUT THAT WOULD BE IT. I COULD ALSO FIND OUT WHEN IT WENT INTO LAPD'S CUSTODY, SO IT IS SORT OF AN IN-OUT.
FOR THE COURT REPORTER'S BENEFIT, WHY DON'T YOU GIVE US THE ACRONYMS APIMS AND SETS STANDS FOR.
YEAH, I WISH I KNEW, YOUR HONOR. YOU KNOW, I HAVE BEEN PRACTICING LAW FOR ALMOST TEN YEARS AS A PROSECUTOR AND I HAD NEVER HEARD OF THESE SYSTEMS UNTIL THIS CASE. I DON'T KNOW WHETHER MAYBE YOUR HONOR HAD. I KNOW THAT YOU HAVE MORE EXPERIENCE IN THE JUDICIAL SYSTEM THAN I. AND I HAVE TAKEN AN INFORMAL POLL AND ASKED OTHER PROSECUTORS AND I DON'T THINK THEY HAVE EVER HEARD OF IT EITHER, AND I WOULD SCARCELY DOUBT THAT ANY DEFENSE ATTORNEYS PRIOR TO THIS CASE HAVE HEARD OF IT, AND THAT IS WHY I HAVE A LOT OF TROUBLE WITH THE IDEA THAT IT IS EXCULPATORY MATERIAL THAT WOULD VIOLATE THE DEFENDANT'S DUE PROCESS RIGHTS IF IT WASN'T TURNED OVER. I MEAN, EVERYONE ELSE HAS SEEMED TO BE ABLE TO LITIGATE THEIR CASES AND DEFEND THEIR CLIENTS WITHOUT THE BENEFIT OF THIS KIND OF MATERIAL, EXCEPT THE DEFENDANT, MR. SIMPSON.
WELL, LET ME TELL YOU WHAT I FORESEE, THOUGH. I FORESEE CROSS-EXAMINATION AS TO THE CHAIN OF CUSTODY AND INTEGRITY OF THE EVIDENCE DURING THE TESTING PROCESS AND THEN ASKING THE PERSONS INVOLVED, PRIMARILY THE CRIMINALISTS FROM LAPD, SID, TO EXPLAIN THE CHAIN OF CUSTODY BASED UPON THESE DOCUMENTS, WHICH ARE PROBABLY UNINTELLIGIBLE TO THE AVERAGE HUMAN BEING.
WELL, YOU KNOW, I THINK THEY ARE ALSO -- THE APIMS DOCUMENT IS ALSO UNINTELLIGIBLE TO THE CRIMINALIST BECAUSE IT ISN'T THE SYSTEM THEY USE IN-HOUSE. WHAT I WAS TRYING TO FIND OUT ABOUT THE SETS SYSTEM, YOUR HONOR, BECAUSE I NEVER REALLY HEARD OF IT OR KNEW THAT SUCH A SYSTEM EXISTED, SO WHEN I WAS TRYING TO LEARN A LITTLE BIT ABOUT IT AND HOW IT WORKED, I LEARNED THAT MANY OF THE CRIMINALISTS DON'T KNOW EXACTLY HOW SETS WORKS EITHER. THEY KNOW WHAT THEY DO TO IT AND HOW THEY PUT BAR CODES IN, BUT THEY DON'T HAVE A LOT UNDERSTANDING AS TO WHAT HAPPENS TO THE INFORMATION ONCE IT IS IN THE COMPUTER. IT REALLY ONLY SERVES ONE PERSON. IF YOU ARE A CRIMINALIST AND YOU WANT TO KNOW WHERE WITHIN THE LABORATORY I CAN FIND THIS BOX AT ANY GIVEN TIME, BECAUSE REMEMBER IT GOES TO BOXES, NOT ITEM NUMBERS, YOU CAN USE THE SETS SYSTEM TO DO THAT. SO I DON'T KNOW HOW THEY COULD CROSS-EXAMINE THEM REALLY EFFECTIVELY ABOUT SOMETHING THAT THEY HAVE VERY LITTLE KNOWLEDGE ABOUT. WHAT THEY NEED TO DO IS THE SAME THING THAT WE DID IN THIS CASE.
BUT I SUSPECT THEIR WHOLE GOAL IS JUST TO SHOW THAT THERE IS NO COHERENT INVENTORY SYSTEM.
I'M JUST SAYING THAT THAT IS GOING TO BE THEIR GOAL. WHETHER OR NOT THAT IS TRUE OR NOT IS FOR THEM TO DECIDE.
WHAT THE DEFENSE HAS TO DO IS WHAT ANYONE WOULD HAVE TO HAVE DONE BEFORE THE ADVENT OF COMPUTERS, AND EVIDENTLY THIS IS REASONABLY NEW. I DON'T THINK THAT IT HAS BEEN AROUND --
DO YOU FEEL COMFORTABLE, THOUGH, THAT I UNDERSTAND THE PROSECUTION POSITION AS TO NOW THAT YOU HAVE TURNED OVER THESE COMPUTER PRINTOUTS, THAT THAT IS THE END OF YOUR OBLIGATION?
THIS IS -- SEEMS TO BE TYPICAL OF MANY OF THE DEFENSE ALLEGATIONS OF PROSECUTORIAL NON-DISCLOSURES OF INFORMATION IN THE SENSE THAT THEY DON'T GIVE THE COURT ANY SPECIFICS, THEY JUST SAY WE GOT A BUNCH OF "L" NUMBERS, NEW "L" NUMBER, AND THERE IS A DISCOVERY VIOLATION, WE WANT A SANCTION, WITHOUT SPECIFYING WHAT, IF ANYTHING, IS NEW, WHAT IS STARTLING ABOUT THESE THINGS, WHAT ARE -- WHICH ONE OF THESE, IF ANY, COME WITHIN THE DEFINITION THAT WE HAVE JUST TALKED ABOUT IN TERMS OF EXCULPATORY EVIDENCE OR WITHIN THE CALIFORNIA PENAL CODE, BECAUSE AGAIN, WE ARE TURNING OVER STUFF THAT WE REALLY IN MY VIEW IN MANY I SENSES DON'T HAVE ANY OBLIGATION TO TURN OVER. WE HAVE KIND OF TAKEN THE TACT THAT IT IS NOT REQUIRED BY THE CONSTITUTION OF EMPTYING OUT OUR CASE FILE AND NOW THEY WANT TO PENALIZE US FOR DOING THIS. WHAT HAPPENED HERE, YOUR HONOR, WAS WITH RESPECT TO A LARGE NUMBER OF THESE "L" NUMBERS, GREG MATHESON, WHO IS ONE OF THE SUPERVISORS AT THE SCIENTIFIC INVESTIGATION DIVISION AND ALSO A WITNESS IN THIS CASE, WAS GOING THROUGH THE MATERIAL THAT WE HAVE ALREADY TURNED OVER AND RECOGNIZED, AS WE HAD EARLIER ON, THAT WHEN "L" NUMBERS WERE ASSIGNED INITIALLY WAY BACK WHEN, THEY WERE ONLY ASSIGNED TO THE FACE PAGE OF A PARTICULAR DOCUMENT SO THAT YOU MIGHT HAVE A TWELVE-PAGE DOCUMENT WITH ONLY THE FACE PAGE HAVING L-115, FOR EXAMPLE, AND 116 WOULD BE A DOCUMENT THAT WAS 16 PAGES LATER, AGAIN BEING A FACE PAGE. SO IN THE INTERESTS OF COMPLETENESS AND HAVING SOME WAY OF BEING ABLE TO PROVE IF WE NEEDED TO, THAT THE DEFENSE HAD A PARTICULAR DOCUMENT, SINCE THEY FREQUENTLY COME UP TO US AND SAY WE NEVER GOT THIS, WE NEVER GOT THIS, AND THEN WE CAN GO BACK TO OUR RECORDS AND PROVE THAT THEY DID, WHAT HE DID IS HE REISSUED, RENUMBERED AND REISSUED MANY OF THESE PAGES THAT THE DEFENSE ALREADY HAD. THAT REISSUING WAS FROM PAGE L-579 TO 715, SO AS TO THOSE ITEMS OF THESE ALLEGED 300 ODD PAGES THAT THE DEFENSE SAYS OR CLAIMS THEY HAVE THAT ARE NEW OR UNACCOUNT -- PREVIOUSLY UNACCOUNTED FOR, MANY OF THOSE I WOULD ASSUME FALL INTO THAT CATEGORY. AS TO THE REMAINDER OF THE ITEMS, ACCORDING TO WHAT I HAVE BEEN ABLE TO DETERMINE, THEY ARE ALL RELATIVELY RECENT MATERIALS AND MANY OF THOSE MATERIALS DEALT WITH RECORDS THAT WERE COMPILED, ITEMIZING THE NUMBERS BEFORE WE SENT THEM OUT TO ALBANY FOR THE DEFENSE INSPECTION, ITEMIZING THEM AFTER THEY CAME BACK. THERE WERE NOTATIONS AS TO THE LABORATORY VISIT THAT OCCURRED ON SATURDAY, I BELIEVE THAT WAS THE 3RD OR THE 4TH OF THIS MONTH. THERE WERE MANY MATERIALS, MANY OF THESE MATERIALS NOT FALLING WITHIN ANY OF THE PROVISIONS OF THE DISCOVERY LAW, WHICH AS THE COURT IS FAMILIAR, BASED UPON OUR LAST DISCUSSIONS AND THE DISCUSSION OF PARTICULARLY HINES VERSUS SUPERIOR COURT, MAY INCLUDE NOTES, PLUS IT WOULD INCLUDE NOTES OF LABORATORY ANALYSIS, COMPARISONS, OBSERVATIONS, TESTING, AND THE LIKE. AND MANY OF THESE THINGS WERE CHRONOLOGICAL REFERENCES TO EVENTS THAT TOOK PLACE THAT HAVE NOTHING TO DO WITH TESTING OR ANALYSIS OF EVIDENCE, KINDS OF THINGS THAT COME WITHIN CALIFORNIA CASE LAW THAT REQUIRES DISCLOSURE OF CERTAIN NOTES UNDER PROPOSITION 115. SO I THINK THAT THE BURDEN IS REALLY ON THE PARTY THAT IS MAKING THE ALLEGATION OF DISCOVERY ABUSE TO GO THROUGH, TO ITEMIZE THE SPECIFIC PAGE NUMBERS THAT THEY CLAIM THAT THEY DIDN'T HAVE AND TO TRY TO ARTICULATE TO THE COURT WHAT THESE ARE, WHY THEY ARE IMPORTANT, WHY THERE HAS BEEN A DISCOVERY VIOLATION, SO THAT THE COURT HAS SOME BASIS UPON WHICH TO MAKE A DECISION ON THAT ISSUE. I WOULD JUST LIKE BRIEFLY, I DON'T THINK THAT THE DEFENSE IS ASKING FOR ANY RELIEF ON THIS RIGHT NOW, TO MENTION THE ISSUE OF THE BINDLE OF HAIR AND FIBER. I DID NOT KNOW ANYTHING ABOUT THAT ISSUE UNTIL IT WAS RAISED HERE, BUT WHAT I CAN TELL THE COURT IS THAT THE PROCEDURE THAT THE LOS ANGELES POLICE DEPARTMENT USED IS THAT THEY PHOTOGRAPHED THE EVIDENCE BEFORE IT CAME -- BEFORE IT WENT OUT AND THEN PHOTOGRAPHED AFTER IT CAME BACK. OF COURSE THAT HAS PRODUCED AN ENORMOUS NUMBER OF PHOTOGRAPHS, HUNDREDS AND HUNDREDS OF PHOTOGRAPHS, WHICH THE DEFENSE HAS, BUT THAT SHOULD BE ABLE TO DISPOSE OF THIS KIND OF ALLEGATION. I'M NOT SURE THAT THE DEFENSE IS ASKING FOR ANY FORM OF RELIEF ON THIS AT THIS TIME. MAYBE THEY ARE JUST ANNOUNCING IT FOR WHATEVER PRESS VALUE THEY FEEL IT HAS, BUT I DO BELIEVE THAT THE COURT SHOULD SUMMARILY DENY THE DEFENSE CLAIMS OF DISCOVERY ABUSES REGARDING THE APIMS AND SETS MATERIALS AND ALSO THE NEW "L" NUMBERS.
ALL RIGHT. WHAT ABOUT THE COMMENT REGARDING THE 283 PAGES OF SHOE EVIDENCE AND REPORTS FROM THE FBI?
YOUR HONOR, THESE MATERIALS ARE ALMOST EXCLUSIVELY REPETITIVE COPIES OF A FORM LETTER ESSENTIALLY THAT WAS SENT FROM THE FBI, I BELIEVE, TO VARIOUS SHOE MANUFACTURERS AROUND THE COUNTRY. SO IT IS CORRESPONDENCE BASICALLY AND IT IS OTHER TYPES OF MEMOS AND CORRESPONDENCE FROM THIS EXPERT WHO WE WILL BE CALLING, BUT IT IS CORRESPONDENCE, IT IS NOT MATERIALS, WHICH ARE DISCOVERABLE, AS MR. GOLDBERG HAS JUST TALKED ABOUT, IN TERMS OF WHAT MATERIALS ARE DISCOVERABLE. THESE WERE THINGS --
HE BASICALLY CLEANED OUT HIS FILES. MR. GOLDBERG ALLUDED TO US CLEANING OUT CASE FILES. IT IS A SIMILAR ANALOGY. HE, AFTER FINALLY COMPLETING HIS REPORTS, AND I DON'T WANT TO REPRESENT THEY ARE TOTALLY COMPLETE BECAUSE THEY MAY NOT BE, BUT IN TERMS OF COMPLETING THE REPORTS THAT HAVE BEEN DONE TO DATE AND THE ANALYSES THAT HAVE BEEN DONE TO DATE, THESE WERE THE PRIORITY, THAT IS WHAT HE SOUGHT TO FINISH ON AND HE DID.
HE GOT THOSE OUT AND THEN HE WENT FAR BEYOND WHAT THE DEFENSE EVEN ASKED FOR IN THEIR RECENT LETTER WHICH REQUESTED MATERIALS FROM MR. BODZIAK OR AGENT BODZIAK, AND THAT IS CORRESPONDENCE, AND VIRTUALLY EVERYTHING HE HAD IN HIS FILES, SO AGAIN, WE TURNED OVER, AS IS MY POSITION AS WELL, FRANKLY, THAT WE TURNED OVER MATERIALS WHICH ARE NOT REQUIRED UNDER THE DISCOVERY LAWS. AND WE HAVE BEEN ESPECIALLY FORTHRIGHT IN THIS CASE FROM THE BEGINNING AND THAT WAS A DECISION MADE FROM THE GET GO, TO DO THAT, BUT AGAIN, IT IS A SIMILAR SITUATION WHERE THESE ARE LETTERS AND CORRESPONDENCE AND THINGS THAT ARE NOT DISCOVERABLE UNDER THE DISCOVERY LAWS THAT WE TURNED OVER ANYWAY, AND SO CERTAINLY WE SHOULD NOT BE SANCTIONED FOR TURNING OVER WHAT WE DID NOT HAVE TO TURN OVER. THE DEFENSE SHOULD BE GRATEFUL THAT THEY HAVE RECEIVED THIS INFORMATION AND EARLY BEFORE THE EXPERT TESTIFIED. YOUR HONOR, I WANT TO MENTION THAT I DID TALK TO DETECTIVE LUPER. HE WILL BE HERE AT 8:30 IN THE MORNING. HE HAS SPOKEN WITH MR. FORD, THE ONE THAT ACTUALLY DID THE VIDEOTAPE. HE WILL BE HERE. WE HAVE NOT YET REACHED THE SUPERVISOR BECAUSE HE IS OUT DOING SOMETHING WORKWISE, SO WE SHOULD CERTAINLY BE ABLE TO REACH HIM AS WELL.
AND IT ALSO OCCURRED TO ME, BACK TO THE VIDEOTAPE FOR A MOMENT, THE BLOOD ON THE CARPETING WOULD ALSO BE FOR LIABILITY PURPOSES. THAT WOULD BE THE REASON.
WHATEVER. IT WOULD BE FOR LIABILITY PURPOSES SO THAT THEY COULDN'T LATER CLAIM THAT WHATEVER MATERIAL THAT IS IN THE FOYER OR PAINT, I FORGET WHERE THIS BLOOD IS, FRANKLY, SO THAT IT WOULDN'T HAVE BEEN SOMETHING THAT THE LAPD DAMAGED.
I THINK THE ARGUMENT IS GOING TO BE, THOUGH, THAT WHAT TIME, WHEN, WHO WAS THERE WHEN IT WAS COLLECTED, AND IF IT IS STILL THERE AT 2:30 IN THE AFTERNOON OR 3:30, DEPENDING ON WHAT TIME --
I HAVE IT THROUGH HEARSAY, BECAUSE I DIDN'T ASK DETECTIVE LUPER MYSELF, I SHOULD HAVE, THAT THIS WAS ALL DONE AFTER THE SEARCH WARRANT WAS EXECUTED, BUT WE ALSO KNOW THAT IN THE MORNING WITH CERTAINTY.
OKAY. MR. SCHECK, DO YOU WANT TO TELL ME A LITTLE BIT MORE ABOUT THE BINDLE, THE LOST BINDLE?
THE -- MR. HODGMAN AND MR. YOCHELSON HAVE BEEN DEALING WITH IT. MY UNDERSTANDING IS THAT THEY ACTUALLY HAVE PHOTOGRAPHED THE RETURN OF THE BINDLE, SO IT WAS BACK HERE AND THEY AT THIS POINT IN TIME HAVE LOST IT, SO I THINK THAT IS A PRETTY SIMPLE MATTER. WITH RESPECT TO THE "L" NOTES, I THINK THAT MR. GOLDBERG'S ARGUMENT ADMITS TOO MUCH. FIRST OF ALL, THE "L" NOTES WERE GIVEN TO US OUT OF ORDER IN THE FIRST PLACE. IN OTHER WORDS, WE WOULD GET A CRIME SCENE CHECKLIST FROM MR. FUNG AND YOU WOULD FIND ONE PAGE IS L-33 AND THE OTHER ONE IS 576 AND THAT IS THE WAY WE WERE RECEIVING THINGS IN THIS CASE, AND NOT GREAT COPIES EITHER. THAT IS -- AND YOU KNOW, IT IS ANNOYING BECAUSE I WISH I HAD A NICKEL FOR EVERY TIME MISS CLARK GOT UP AND SAID EVERYTHING WAS BEING TURNED OVER, BUT LET'S -- LET'S MOVE ON TO THE LEGAL ISSUE. UNITED STATES VERSUS AGURS WAS OVERRULED. UNITED STATES VERSUS BAGLEY IS THE LAW WITH RESPECT TO MATERIALITY. AND THE DIFFERENCE BETWEEN BAGLEY AND AGURS ON THE ISSUE OF MATERIALITY IS SIGNIFICANT BECAUSE IN BAGLEY THE COURT POINTS OUT THAT MATERIALITY SHOULD BE DETERMINED FROM THE POINT OF VIEW OF WHAT THE DEFENSE WANTS TO DO WITH SOMETHING, SOME SUPPRESSED EVIDENCE, WHAT ITS THEORY OF THE CASE IS, WHAT IT NEEDED AT A PARTICULAR TIME. IT IS NO SECRET THAT THE CHAIN OF CUSTODY DOCUMENTS THAT WE ARE SPECIFICALLY ASKING FOR ALL ALONG HAS BEEN AN ESSENTIAL ELEMENT OF THE DEFENSE, AS THE COURT FROM ITS COMMENTS REVEALED. THERE IS NO EXCUSE UNDER THE UNITED STATES CONSTITUTION TO CONTINUALLY REFRAIN FROM TURNING OVER MATERIAL THAT TRACKS THE CHAIN OF CUSTODY OF THESE DOCUMENTS AND IS RELEVANT. IT DOESN'T STRIKE ME AS A PARTICULARLY PERSUASIVE ARGUMENT THAT THE CRIMINALISTS AT SID HAVE NO IDEA HOW THE SYSTEM WORKS WHEN IT IS DESIGNED TO ASSIST THEM IN TRACKING DOCUMENTS AND CREATING A CHAIN OF CUSTODY. THAT ARGUMENT AGAIN ADMITS MORE THAN I THINK MR. GOLDBERG INTENDED AND IT IS FOR THAT VERY REASON THAT THESE DOCUMENTS WERE IN CHAOS TO TURN THESE OVER SO LATE SO THAT IT BECOMES A NIGHTMARE FOR THE DEFENSE TO TRY TO FIGURE OUT WHICH ITEM WAS TESTED AT WHAT PARTICULAR POINT IN TIME AND WHO HAD ACCESS TO IT IS SANDBAGGING. WE HAVE BEEN ASKING FOR THIS FOR A LONG TIME.
ALL RIGHT. MR. SCHECK, LET ME BRING US TO A CLOSURE IN OUR DISCUSSION. FIRST OF ALL, AS TO THE LABORATORY NOTES, THE "L" NOTES THAT YOU ARE DISCUSSING, THE FACT THAT THESE WERE TURNED OVER TO YOU AT THIS POINT RECENTLY AND THIS COMMENT ALSO GOES TO THE FBI NOTES REGARDING THE SHOES, WHAT I THINK YOU NEED TO DO IS PRESENT TO ME SOMETHING THAT INDICATES THAT THESE ITEMS ARE MATERIAL, THAT THEY SHOULD HAVE BEEN TURNED OVER AND THAT THERE IS SOME PREJUDICE TO YOU FROM HAVING NOT GOTTEN THEM RECENTLY, BECAUSE IF THEY ARE AS REPRESENTED, THEY SOUND RELATIVELY INNOCUOUS.
OH, NO. I MEAN, I TRIED TO BE SPECIFIC. I WILL ASK MR. BLASIER TO ADDRESS IT, I WILL PUT THIS IN WRITING, BUT JUST SO YOU KNOW, I ONLY ADDRESSED MR. MATHESON'S AS CHRONOLOGY. MR. MATHESON TESTIFIED AS A WITNESS IN THE SPLIT HEARING. HE, AS YOU RECALL, HAD GREAT DIFFICULTY REMEMBERING EXACTLY WHAT THE DISCUSSIONS WERE ON WHEN EVIDENCE WAS GOING TO BE SENT OUT FOR DNA TESTING AND WHO DID WHAT AND WHEN.
WELL, HE CREATED A CHRONOLOGY. HE WAS DOING A STEP-BY-STEP CHRONOLOGY THAT WASN'T TURNED OVER WHEN HE TESTIFIED AND IT WASN'T TURNED OVER SUBSEQUENTLY. IT WAS ONLY TURNED OVER LAST WEEK. PLAINLY MATERIAL AND I WILL LAY THAT OUT FOR YOU.
MR. BLASIER CAN ADDRESS YOU NOW, OR IF YOU WANT IT IN WRITING, TO THE ISSUE OF THE SHOES.
ALL RIGHT. AS TO THE VIDEOTAPE, WE WILL START TOMORROW MORNING AT 8:30. I EXPECT ALL PARTIES -- INTERESTED PARTIES TO BE HERE AT 8:30. AS TO THE APIMS AND SETS MATTERS, I THINK I AGREE WITH MR. GOLDBERG'S POSITION THAT THE OBLIGATION OF THE PROSECUTION IS TO MAKE WHATEVER IS AVAILABLE AVAILABLE, WHICH THEY HAVE DONE, AND THEY HAVE NO FURTHER OBLIGATION TO INTERPRET OR SIMPLIFY.
NO, NO. I SAID THAT AT BEGINNING. THE POINT IS NOT -- THE APIMS RECORDS ARE UNINTELLIGIBLE. OUR POINT FROM THE BEGINNING IS THIS: WE HAVE BEEN ASKING FROM THE BEGINNING OF THIS CASE FOR THE CHAIN OF CUSTODY RECORDS, THE COMPUTERIZED CHAIN OF CUSTODY REPORT.
MR. SCHECK, IF IT IS UNINTELLIGIBLE, THAT SOUNDS LIKE A TERRIFIC THING TO ME, FROM YOUR POINT OF VIEW, TO CROSS-EXAMINE ON.
KEY QUOTENO. THE PROBLEM PARTICULARLY WITH THE SETS RECORD IS THAT THEY REFRAINED FROM GIVING IT TO US UNTIL I THINK ABOUT THREE WEEKS AGO. NOW, THAT IS WRONG. THAT IS A VIOLATION OF THEIR DISCOVERY OBLIGATIONS. IT IS PLAINLY RELEVANT TO OUR DEFENSE.
MR. SCHECK, MR. CHECK, YOUR ARGUMENTS TO ME HAVE NEVER MENTIONED THAT YOU ARE COMPLAINING ABOUT IT, THAT YOU JUST GOT IT. YOU ARE COMPLAINING ABOUT WHAT IT SAYS AND HOW YOU INTERPRET IT.
THEN I DID NOT ARTICULATE IT TO YOU CLEARLY ENOUGH. LET ME BE CLEAR. MY ARGUMENT WAS IT WAS TURNED OVER LATE AND THE SETS RECORDS IN CONJUNCTION WITH THE OTHER LABORATORY MATERIALS REQUIRE EXHAUSTIVE CROSS-REFERENCING. I THINK THAT IS WHAT I SAID. AND BY GETTING IT LATE WE HAVE BEEN PREJUDICED BECAUSE WE STILL ARE TRYING TO DO THAT AND WE SHOULDN'T HAVE THAT BURDEN AT THIS POINT IN TIME, WE SHOULD HAVE HAD IT MONTHS AGO SO WE COULD FURTHER OUR INVESTIGATION. THAT IS THE PROBLEM.
OUR LETTER TO THE COURT SAYS: "FINALLY, WE CONTINUE TO BE PREJUDICED BY THE PROSECUTION'S FAILURE TO PRODUCE IN A TIMELY FASHION COMPUTERIZED RECORDS FROM SID AND LAPD." THAT IS THE PROBLEM. THAT IS THE PROBLEM. OF COURSE IT IS AN AGGRAVATING FACTOR THAT THEY TURNED THEM OVER AND THE APIMS RECORDS ARE --
I WANT AN INSTRUCTION. I WANT AN INSTRUCTION TO THE JURY THAT THE PROSECUTION VIOLATED ITS DISCOVERY OBLIGATIONS BY FAILING TO TURN OVER THESE CHAIN OF CUSTODY RECORDS IN A TIMELY FASHION AND THAT THEY CAN CONSIDER THAT WITH RESPECT TO THE CREDIBILITY OF THE PROSECUTION'S WITNESSES ON THE ISSUE OF CHAIN OF CUSTODY.
THIS IS A NIGHTMARE TO TRY TO TRACK THROUGH THEIR EVIDENCE. WE SHOULD HAVE HAD THIS EVIDENCE A LONG TIME TO GO TO FIGURE OUT WHAT WE ARE DEALING WITH AND TRACK THESE THROUGH, AND IT IS LATE DISCLOSURE WE FEEL.
AT ONE POINT DURING THE COURSE OF THIS VIDEOTAPE THE CAMERA PANS OVER THE MASTER BEDROOM AND SHOWS THOSE STRAPS THAT APPARENTLY WERE MOVED AROUND AT SOME POINT IN TIME ON THE BED, AND THEN JUST AT THE POINT WHERE IT IS ABOUT TO SHOW THE SOCKS, A VERY CRITICAL PIECE OF EVIDENCE IN THIS CASE AND WHERE THEY WERE AT WHATEVER TIME THIS TAPE WAS TAKEN, THE CAMERA CUTS ALL OF A SUDDEN AND MOVES TO A NEW POSITION. WE ARE VERY INTERESTED IN WHY THAT HAPPENED.
IT WAS TAKEN AT DETECTIVE LUPER'S DIRECTION, AS I MENTIONED. IT WAS GIVEN TO HIM THE FOLLOWING DAY. HE THREW IT IN A DRAWER KNOWING THAT IT WAS GOING TO BE FOR ADMINISTRATIVE PURPOSES. IT DIDN'T OCCUR TO HIM TO SEEK TO MAKE IT PART OF THE DISCOVERY TYPE OF MATERIALS IN THE CASE.
MR. SCHECK, IF IT IS UNINTELLIGIBLE, THAT SOUNDS LIKE A TERRIFIC THING TO ME, FROM YOUR POINT OF VIEW, TO CROSS-EXAMINE ON.
THE PROBLEM THAT WE GET -- GET INTO IS WE THINK THAT WE ARE BEING NICE GUYS BY JUMPING THROUGH ALL THESE HOOPS THAT THEY HAVE SET UP FOR US, AND EVERY TIME THAT WE HAVE COMPLIED WITH THESE HOOPS, THEY WILL HAVE A NEW HOOP THAT THEY WANT US TO GO THROUGH.