Back on the record in the Simpson matter. All the parties are again present. Mr. Blasier, when we recessed, you indicated that there was something about--we had one other issue, one of the boards that you had an objection to.
Yes. I have before me a board that's entitled, "Nail clippings, scrapings, Nicole Brown." and my recollection, Mr. Blasier, you made an objection to the photograph that appears on the bottom?
It's overly gruesome, doesn't add anything to the topic of the fingernails. It adds nothing. It tends to inflame the jury resulting in an emotional reaction rather than non-emotional. I object to it on those grounds. It's already in evidence I think in some other form. I would object to having it on the chart as well.
What's the other evidence, markings of this particular photograph? Mr. Fairtlough, do you know that?
Yes, your Honor. I believe it is People's exhibit no. 42. Let me just check and verify that. Actually, your Honor--I am sorry. It is not yet in evidence. There are very similar photographs to it that are People's exhibit no. 42, which bear the frame counter number 0039. This bears the frame counter 0040. Does the Court wish to see the two photos?
No. I recognize the scene that's depicted there. All right. Mr. Goldberg, why do we need this?
The reason is that this goes back to the EAP issues. The Court recalls the Defense made a big deal in the opening statement about someone else's blood being found under Nicole Brown's fingernails, and we're going to address that in some great detail. The Court knows that one of the things we want to do in order to do that is to put on evidence as to the testing of item no. 42, which is the blood underneath Nicole Simpson, Nicole Brown. And what I want to be able to show here is why it was reasonable from a forensic science standpoint to make an inference about the results under the fingernails from the results on the pool of blood. I want to show that they are in contact, that she is lying in that area and that the blood that Mr. Matheson tested, item no. 42, is subject to the same environmental conditions and was deposited on the crime scene at the same time presumably as the blood underneath the fingernails.
So you're saying the relevance is the location and position of the hands from whence the nail scrapings come?
Yeah, in contact with the pool of blood and then the relevance of the hands themselves, the close-ups of the hands, which I believe may also be in evidence according to Mr. Blasier. Is that they do the same thing. They're showing that this is all really part of one contiguous and continuous blood source, and therefore, we can take test results from a variety of locations in that source of blood under the fingernails and interrelate them trying to figure out what's happening to the items underneath the fingernails.
Just that the jury has seen these pictures over and over and over again. You can't even see item 42 in any of these pictures. I think it's irrelevant and cumulative and prejudicial.
All right. The Court finds that in this particular context, the location and position of the hands relative to the crime scene itself, the pool of blood and the location of Nicole Brown Simpson as she was found, that there is significant probative value with regards to the nail clippings and scrapings and that the jury has already seen a similar picture to this in a relevant context. I don't think it will have the inflammatory effect that counsel argues. So the objection will be overruled. All right. What's the second board?
There's a new chart that just was brought down at 1:00 o'clock I believe, and it concerns testing by the Defense. And this was an issue that we talked about a number of times before. We're waiting for a ruling from the Court on issue related to these items on this board I believe. And we have--we weren't aware that they were going to have a board like this. We strenuously object to the Prosecution going into anything concerning what we have done during the course of our confidential privileged investigations. We have stated many times that we are not challenging chain of custody for any of these items during the period of time when we had possession of them. There is virtually no probative value. Clearly there's a prejudicial effect to what they want to do. We strenuously object to any testimony concerning what happened to items when they were in our possession or what didn't happen to items.
Your Honor, with the Court's permission, maybe Mr. Harmon could address this because he's going to use this with one of his witnesses and mine in order to establish the authentication for the exhibit.
All right. Let me ask you though, Mr. Goldberg, before you go one question. When do you anticipate using this?
I'd say I probably have about an hour and a half worth of material to cover to two hours is my best guesstimate prior to this board.
Your Honor, this--remember, we proposed the stipulation that could accomplish what this board accomplishes, and it kind of disappeared from everybody's agenda. This board is our attempt to utilize the provisions that you made in your order on February 8th. They would like everybody in the world and this jury to think they never tested any evidence in this case, and that's simply not the case. They took part of our samples in October. They did not have writing on them. That was pursuant to the Court's order. Mr. Matheson can lay the foundation for that being turned over. When they came back, they had all these names and dates all over them, and that's the subject of what we're going to discuss Wednesday afternoon, but it's also contained in the stipulations. And so absent them stipulating to a very sanitary, you took our evidence, you brought it back, you consumed part of it in the testing, which is what you afforded us the opportunity to do, we have to prove it, and this is one way that we begin proving it, your Honor.
The critical phrase there is "Consumed in testing." we've stated from the beginning we have no objection to the jury being told that the reason there is a half of three swatches missing is because it was provided to the Defense. The jury needs to know nothing beyond that. Mr. Harmon wants to get into what we may have done in a confidential privileged basis where he wasn't there. He doesn't have the foundation to go into that. He wants to raise some sort of specter that because we've tested evidence, that we got results we didn't like, which is not--
So your objection is characterizing it as having been used in testing rather than just having been given to you for whatever purpose you deem appropriate?
So if the Court's instruction to the jury is that on such and such a date, this item, for example, item 47, the possession of which was given to the Defense, that a certain portion of that was given--was removed and given to the Defense and then the remainder returned to the Prosecution on a subsequent date, you have no objection to that--
All right. Then you would have I take it then no objection if that is the limitation on the testimony here with regards to these packaged items?
Well, I would object to the introduction of these large photographs and the packaged items with all sorts of signatures on them that presumably Mr. Harmon is going to feel the need to explain to the jury where they came from. Nothing is added by this chart that isn't conveyed to the jury by what you just said, what the Court just said.
Well, we've been pussyfooting around with this for months now, Judge, and every time--you know, we tried to make it in a direct very sterile way, and then they dodged it, then they filed this prosecutorial misconduct when any fool can read what happened to these things. And now when we're about to prove things, which is what the jury trial is about, now they want you to just tell them something. Well I'd rather that--we're not asking for a stipulation. We're not asking for an instruction. We're asking to explain the factual history of what happened to these samples. And whatever legal instruction you give at a later point I'm sure will comport with the process--or the due process requirements, that we can't comment on the Defendant not testifying or them not presenting any evidence. But this is the factual history, the chain of custody of these things. And we've tried in many ways to resolve this. And now when it comes time through the logical witness to begin the proof process, now they want you to just tell them something that's just not quite true, consistent with the factual history of these stains. I think we should just prove it, your Honor.
KEY QUOTEAll right. Thank, you counsel. I'll contemplate that. Mr. Goldberg, let me know when you're about to launch into that. We'll take a break. And I need to look at two cases before I rule on this.
One other quick issue, your Honor. Mr. Goldberg showed us some papers, some handwritten lab notes this morning that we have never seen before. He indicated that he thought they had been turned over. Mr. Scheck and Mr. Neufeld and I have never seen them. We don't yet have copies of them. I would ask that we be provided with copies and that he not elicit any testimony concerning these documents until we've had a chance to explore them and find out why we didn't get them in a timely fashion.
Your Honor, these are not lab notes. This is an item that was generated on 6-29-94 which are the handwritten copies of the inventory that was done that was the subject of the Griffen hearing and it was subsequently generated in a typewritten form. Counsel says that he does not have it in a handwritten form, but I believe that the handwritten copy of this was introduced at the Griffen hearing itself as an exhibit, as exhibit k to that hearing. But he is correct, it does not have l numbers or d numbers. But if they went through the Griffen hearing materials, they'd find that this is, as I said, exhibit k.
All right. Mr. Goldberg, are you going to get to any information on that at this point before our next recess?
I could. And as I said, it's identical to--well, I'll probably get to it sometime around when we address the photographs that are the subject of the Court's other pending--
All right. Is there an item k from the August hearing? Will you pull that out, Mrs. Robertson?
But at any rate, it should be identical to the typewritten one that was generated from it.
All right. Item k in the transcript, in the list of exhibits at page 6, transcript of August the 23rd indicates item k are handwritten notes, 11 pages dated June 29, 1994. And the testimony was that these were then converted into the computerized, computer-generated printout and they were, as you indicate, marked by Mr. Scheck for the purposes of that hearing. Mr. Blasier.
Well, I wasn't aware. I knew they're not in the lab work. These are handwritten notes, that we were under the impression we were given all of the handwritten notes prepared by people at SID. I don't believe those are in any of the discovery documents. Whether they were proceeded at the time of that hearing or whether Mr. Scheck got a copy, I'm just not sure. But I know there is a typed document that presumably mirrors that.
Well, it appears that Mr. Scheck had them for the use of the Griffen hearing. So the argument that you haven't seen these before--I'll allow--I'll have the staff make you a photocopy of what Mr. Goldberg has. Do you have any additional copies, Mr. Goldberg? Mr. Goldberg, do you have any additional copies?
All right. Would you give that to Mr. Burn for me, please, and, Mr. Burn, would you make some photocopies of that? All right. Let me know before you get to that particular document and we'll get a copy for counsel. All right. Let's proceed.
Your Honor, also, we had a number of foundational objections right before lunch that we need to resolve.
That's correct. All right. What's the nature of your objection, your foundational objection?
Your Honor, Mr. Neufeld has prepared the brief on this, ask that he argue that if possible.
Well--well, we strenuously object to have Mr. Matheson testify about the results of any testing conducted on Mr. Simpson's reference sample without a proper foundation being established, and that foundation being testimony by the nurse who drew it, the manner in which it was drawn, how it was preserved, how it was logged in, how it was packaged and how it got to the point where he performed testing on it. The foundational question, as the Court is aware, we're raising serious questions about foundation, chain of custody, packaging, collection--
Well, your Honor, on page 19367 of the transcript, it's volume 110, Detective Vannatter's testimony, he did testify to seeing the item drawn--to the Defendant being in the jail dispensary and blood sample having been drawn and that he then took that blood sample and dropped it off to Mr. Fung at the Rockingham location. Actually the chain of custody on the blood sample has been more thoroughly explored in this case prior to Mr. Matheson's testimony than any other exhibit that I can recollect in any of the previous trials that I've been involved in. I believe we've gone into this for hours and hours and hours and we have testimony leading from the time that it came out of the Defendant's arm to the time that it was packaged up in the gray analyzed evidence envelope and booked. That's the first argument. So just simply factually, the Defense is wrong. The second argument is, on order of proof, the Court has complete discretion with respect to the order of proof and how witnesses are going to be called. If we were to require a chain of custody to be done on every item prior to the witness testifying to it, then we would not be able to get into evidence of the fingernail scrapings, because we haven't heard from the Coroner yet, or the clothes that came from the Coroner on which some testing was done, which we clearly can do, and we would not be able to present evidence on the victim's reference vials which came from the Coroner. A lot of these things have to be tied up later, and we also have a situation here where items of evidence were exchanged back and forth between cellmark and the Department of Justice. So how would you do that? I mean, one of those organizations has to testify first. So if cellmark testifies first, they're going to be testifying to items, some of which--
Well, the point is this, your Honor; is that there are dozens of items, the chain of custody of which is going to be proved through other witnesses, whether they're Coroner's witnesses, whether they're DOJ witnesses, whether they're cellmark witnesses or whether they're other SID witnesses. We also have--
I'm not interested in that issue or that argument. I'm just interested in this blood vial, this particular situation.
And that's what I'm trying to address, is order of proof, which is contained in penal code section 320, which says that, "Except as otherwise provided by law, the Court in its discretion shall regulate the order of proof." and we just know that the case law is replete with instances where courts have virtually absolute discretion in doing this. This case has to be presented or should be presented in some kind of orderly way. And we could call a lot of witnesses twice, you know, once for chain of custody and then for their respective tests. It doesn't make any sense to do it that way. So certain aspects of the chain of custody will have to wait until later to be proved. So that's the second argument. And the third argument is a business records argument. We have a case of People versus Aguilar which I cited in--which was cited in the points and authorities that we prepared and stands for the proposition that you can prove a chain of custody of narcotics evidence of a police officer that was deceased by his notations on the evidence package. As the Court is familiar, evidence packages typically contain a chain of custody statement where the police officer fills out what he did with the chain of custody of the item, and that was held to come in under--as both an official and business record. In this particular case, Mr. Peratis filled out that same type of chain of custody statement which is in the pictures, the photographs of the analyzed evidence envelope.
Well, the issue is one of chain of custody and the issue is one of foundation. And the Court asked is that something the Court needs to know now. We believe that that issue--
No. Your argument is order of proof. You're telling me that you don't need to call this guy right now.
Right. And if the Court concludes we do need to call him at some point, we absolutely will obviously. We're going to do whatever needs to be done in order to establish the chain of custody of these items.
No. Implied in your order of proof argument is that that person will be coming sometime during the case in chief.
But the first argument, as I said, your Honor, is that we don't need to call him at all legally because we've established it through an eyewitness, Detective Vannatter. And the third argument is that we don't need to do it because we have the business records and we have a case that's on point that says that chain of custody statement on the envelope does qualify as an official record.
This is not a chain of custody argument. This is a foundational argument. And we would ask the Court to use its discretion which we accept the Court has to say this is important, this person should be on first to establish the foundation before Mr. Matheson testifies about test results. Mr. Peratis was on their witness list. He was going to be called before Mr. Matheson until the People changed their mind a week or so ago. We would ask that that be done first and that the Court not allow the Prosecution to suspend this witness' testimony or Mr. Peratis' testimony for some indefinite time in the future.
All right. Thank you, counsel. I agree that I believe also that the Court has not unbridled, but certainly wide discretion as far as the order of proof is concerned. I will allow Mr. Matheson to testify to these matters subject to a motion to strike if Mr. Peratis is not called as a witness. All right. Let's proceed.
Just for the record, is the Court rejecting the People's argument about Detective Vannatter being an eyewitness to the drawing and transmittal of the blood?
I'm saying--no, I'm not rejecting that as testimony, but there are other things that perhaps are missing in the foundation; medically approved method, use of a particular vial. Who knows. I haven't examined Detective Vannatter's testimony from months ago.
Yeah. I just wanted to make sure the Court wasn't ruling on that issue at this point.
We've been pussyfooting around with this for months now, Judge, and every time--you know, we tried to make it in a direct very sterile way, and then they dodged it, then they filed this prosecutorial misconduct when any fool can read what happened to these things.
We strenuously object to the Prosecution going into anything concerning what we have done during the course of our confidential privileged investigations. We have stated many times that we are not challenging chain of custody for any of these items during the period of time when we had possession of them.
I will allow Mr. Matheson to testify to these matters subject to a motion to strike if Mr. Peratis is not called as a witness.
The chain of custody on the blood sample has been more thoroughly explored in this case prior to Mr. Matheson's testimony than any other exhibit that I can recollect in any of the previous trials that I've been involved in.