Yes, your Honor. Thank you. Just to set the stage, and actually since I filed my letter with the Court, things have taken on much more of a complex situation than one could have ever imagined. So I think it's important to recap the events that led up to this. The Court recalls Mr. Blasier during cross-examination posed the hypothetical of Mr. Matheson. He led up to talking about is it possible to test for EDTA. And then he said: "Mr. Matheson, if blood from this case from an evidence item such as from the back gate showed the presence of a chemical EDTA, would you agree that is consistent with it possibly coming from a reference vial?" Mr. Goldberg clearly objected: "that is an improper hypothetical. It is inconsistent with the known facts," And the Court overruled the objection. At that point in time, your Honor, the only testing done on the rear gate for the presence of EDTA was done by the Prosecution at the Prosecution's request. It was done by the FBI. There was in fact in reality no basis, real or imagined, no factual basis based on reports that that could have been true in any way, shape or form. Wishful thinking, of course. Hope springs eternal. But in reality, the FBI report reads: "no EDTA was identified in the bloodstains removed from the q204 swabbing of the rear gate at the crime scene and from the 0206 sock," which we know is 13-A(1). Now, that was the state of our knowledge at that time.

What was the date of that report?

March 1st, your Honor.

All right. Thank you.

And I don't know when it was given to the Defense, but I know it was shortly thereafter. And if there's a question, we can--we can clarify that. So, you know, our ears perked up because we assumed we would be able to pose a hypothetical based on the scientific reality, not based on something that may have gone on that we were not aware of. The world saw what happened when Mr. Goldberg tried to pose hypotheticals in various shapes or forms that were based on the reality, the scientific reality, not the wishes and hopes of the people to my left. During the course of the argument, the Court never inquired of Mr. Blasier what his good faith basis, but the Court instead inquired of Mr. Goldberg what his good faith basis for his objections were. But a curious event happened unsolicited. And I have the tape and I have it cued up to this point. Mr. Blasier felt compelled, for reasons that may become clear in a few minutes, to explain to you what his good faith basis. I would like to show the tape, but before I show the tape, I was sitting back there. So I could--

No. You don't need to show the tape because I was sitting here as well.

Well, if the Court recalls. And if the Court doesn't recall, I'd like the Court to--if I can't show the tape, play the sound for the tape.

No. Counsel, you don't need to do it. I was here--

Well, Mr.--when Mr.--

Excuse me, counsel. You don't need to do it. I'm not going to hear it. I was here. I heard it. I saw it. I don't need to see it again.

Well, in my presentation, I would like to describe that as Mr. Blasier began to make his offer of proof, which he continued with, most of the people at this table shushed him, and I could swear I saw people reach out to try to pull him down to get his attention to keep him from making his--explaining what his good faith basis, and it's clearly audible on the tape. As I mentioned, the Defense has never done any testing of this. If they've done anything, they read that report and that's it. And you can't change the words and you can't change the letters on that. So we pointed that out in the oral argument. The Court seemed interested as a matter of discovery that this was news to us, that the words that he uttered that there's an expert who's done something that's formed an opinion based on this report. So I asked Mr. Cochran--Mr. Blasier was gone by then--could I get the discovery. You said take it up informally the way the statute says. I took it up informally. Mr. Blasier was gone. So I filed a letter with the Court on Monday asking for discovery, and this is what I have. I have nothing. My hands are empty. I asked for a letter in response explaining what it is. I have nothing to show for my letter. But as the letter filtered around through the Defense team, Mr. Douglas came up with something. He saw it. And perhaps I can file the original with the Court. Mr. Douglas provided us with a Defense supplemental witness list. The original typed date was March 13th. That was lined out. And then it's written March 17th. And Mr. Douglas represented to Mr. Darden that, "oh, this is--I gave this to you. I just saw this and I gave this to you on March 17th, Saint Patrick's Day. Don't you have it?" Mr. Darden has no recollection of getting it. I've had the transcript of that day. It's a Friday. Searched. There's no reference to it. Interestingly, curiously, the Defense did take some active role about witness lists on Saint Patrick's Day, March 17th. That's the day that they dumped Ed Blake and Mark Taylor or Myron Scholberg from the witness list. Actually, I don't know if the Court needs to-- would you like to see that?

No. I have a copy of that letter in the Court file.

So my letter did sort of shake out something, but it shook out something that, according to our best efforts, we've never seen before. What's interesting about that, just as a side, you know, this is the Dr. Rieders that I'm accused of inappropriately contacting.

Tampering with.

Tampering with or I hear he's tamper proof, but-- and if that's true, if that's true--and I think there's some serious questions that we have to take up about the validity of this document. If that's true and they knew all that, then I didn't talk to him in my--to my best recollection until after they added him to the witness list, if this is legit, which I think there's some serious questions about. I checked with the Court documents. The Court has no record of that document. At least I checked with Mrs. Robertson. She could not find such a document. So what do we have here? Is that document legitimate? Is this just a cover up for an offer of proof that may not have been legitimate, a good faith basis at the time? I don't know what the answers are, but I think the seriousness of the implications of what happened to Mr. Goldberg in front of this jury and the fact that at least as of today, they claim that he's going to be a witness in this case and we have absolutely no reciprocal discovery, they have enough alleged information from him to ask a fraudulent, deceptive, hypothetical question in front of the jury and then cause us to appear that our hypothetical, which is based on the scientific reality of these tests, to be--to make it seem like we're doing something wrong. At this point, your Honor, I think the Court needs to inquire whether this document is legitimate. I think at a minimum, we need the discovery now. We have pages and scraps from a handful of experts. I know there's been in-camera review and discussions of these things, but the whole purpose behind prop 115 and reciprocal discovery was to ensure a fair trial. And when hiding the ball if there's in fact a ball allows one side to ask a fraudulent hypothetical--

Apparently there's a ball.

Well, there is now. There is now. Clearly there is. I have it. I gave it to you, your Honor. Mr. Douglas gave it to us after I filed my letter Monday. But clearly, at this point, we are entitled to have the material, that good faith basis that they all shushed him about making was made on. So I think at this point, your Honor, there seems to be no question. And clearly, my request is directly related to what happened to Mr. Goldberg in front of the jury.

All right. Thank you, Mr. Harmon. Mr. Blasier. Good afternoon.

Good afternoon, your Honor. First of all, I did respond to the People's letter. I faxed it to the Court last night. I faxed it to Mr. Hodgman's fax number, which is the fax number we have on our list. It went out at 7:43 and 30 seconds last night. I have it right here. Did the Court get its copy?

Yes, I did.

And that responds to everything raised in Mr. Harmon's letter in terms of any discovery obligations we have. I might say that, without making a speech, that fortunately, with the FBI's cover report, they sent us their data as well. And obviously it's within our right and obligation to have data reviewed by other scientists. And if it's been reviewed by other scientists who we choose not to call, that's fine. We don't have to tell them who they are and what they've said. If it happens to have been reviewed by a scientist that we might call, if there's a report, we're required to turn it over. If there isn't, we aren't. We've provided the name of a scientist who we may or may not call by the way. We have not made that decision. This is the FBI test results. Presumably, it's their expert that's going to come in and testify about it. Depending on what he says on cross-examination will determine who we call in response to him. But the bottom line here is that Dr. Rieders we may or may not call. I don't think we legally even have to disclose his name, but we have. There's no further material that's discoverable at this time, and we've complied with all of our obligations. I don't want to talk about Mr. Goldberg's questions until we get to that particular issue, but I don't think we need all the rhetoric that we've had. We've complied and that's the bottom line.

All right. Thank you. Any brief response to that, Mr. Harmon?

You know, what he just told you is so inconsistent with the voters that enacted proposition 115. In my recollection with your second discovery order which reiterated your first discovery order which--and I don't have it before me, but it is my recollection of that discovery order that you can't just say, well, we can't decide whether we're going to call these guys until after we hear what the direct and cross-examination is about. That is clearly incompatible with the letter and the spirit of section 1054. And it is my recollection--maybe it's fading--that your discovery order clarified that that was not an option for the Defense. And if you read that report, that's what the FBI agent is going to say. And Mr. Blasier said that he's got information to the contrary from the mouth or mouths of some experts, and the only way that's going to come out of anyone's mouth is if they get up in the blue chair and testify and subject themselves to cross-examination. So to allow them to continue to defer the legal obligation under reciprocal discovery that they should have complied with when they made the decision, if they really made it on March 17th, really thumbs your nose and our noses and everybody's nose at the clear spirit. We don't have--we have notes. We have very little. And I know there have been extensive in-camera discussions on it, but I wonder at what time are we ever going to get back on track. Is this Court ever going to say, "you can't present that. You sandbag too long," because I don't think--

Mr. Harmon, let me ask you a factual question.

Sure.

Refresh my recollection as to the report from the FBI regarding the EDTA testing. Did it include the GCI, the gas chromatograph printouts?

It sure--it did--no. There's no question that there's a flicker of hope that there's something in there that they could get somebody to say something that they'd like. But it is not going to be special agent roger marts, the only witness we intend to call. I read you the statement. It is clear, it is unambiguous. And so to quibble about whether roger marts is going to break down on this stand under withering cross-examination and say, "okay, EDTA is everywhere, all right," that's just not going to happen. You can read it. You can analyze it through an independent expert. The report stands as what it is. If this is the level that Prop 115 and Section 1054 can be violated, we're never going to get anything under expert witness because you could always say, "well, you know, I have to wait to see how good I am on cross-examination, because if I can get all my stuff in, then I'm not going to turn it over to you." And that is clearly not what the voters intended, that is clearly not what the statute says.

All right. Thank you, counsel. All right. So the witness is Dr. Rieders, correct?

If we call a witness, that would be who we would call, yes.

All right. And you have no reports at this time?

That's correct.

Do you have any notes, any communications I take it?

Not from him I don't.

All right. All right. I'll hear from counsel on the curative instruction regarding comments by questions by Mr. Goldberg. Mr. Blasier.

Thank you, your Honor. The issue before you now is whether the questions that were asked by Mr. Goldberg last week were--were so improper that they merit some sort of curative instruction and sanction. It's our position that they are. There--there are a number of things--actually, there's one incident that I didn't put in the report, and that was--in my letter. That was his question to Mr. Matheson about whether--DNA results under the fingernail scrapings. Mr. Goldberg had represented to all of us that he was not going to try to introduce any results through a hearsay witness, and we proceeded on that grounds. We did not object to the chain information that he was putting in. And then he sneaks that one in intentionally to try to get those results before the jury in advance of actually having a witness competent to testify to it. Unfortunately, Mr. Matheson answered the question before I could object, and the objection I believe was sustained if I recall. Perhaps more importantly are the questions regarding EDTA, which in my view were clearly improper. He acknowledged that they were improper even in his statement to the Court after they were made. They--in their response, which I just got a couple minutes ago, but I've had a chance to skim. The hypothetical I asked was very circumscribed and very narrow and talked about, "if blood from this case from an evidence item such as from the back gate showed the presence of a chemical EDTA, would you agree that that is consistent with it possibly coming from a reference vial?" That was it.

That's the second time I've heard it today.

Okay. The questions that Mr. Goldberg asked were nowhere close to that. I mean, he could have clearly constructed a hypothetical that mirrored mine, and he was ultimately allowed to do that and could have done that and would have been appropriate. But what he starts to do is ask questions about: "when you testified to the People's evidence disposition summary, did that reflect a transaction where certain items were sent to the FBI for purposes of EDTA testing?" That was sustained because there was foundation for that. Then he says: "now, Mr. Matheson, have you heard that, according to the report, of the EDTA testing?" That was objected to and it was sustained. Then he says: "hypothetically, if the FBI testing showed that there was known," and we had to object to that. Those aren't close to the hypotheticals I asked at all. He was clearly intending or trying to get testing results, his read on the testing results in front of the jury in the form of clearly improper hypotheticals. Then he refers to it again: "sir, if the facts of their hypothetical were changed so as to indicate that the testing revealed the absence of EDTA." And it seems to me that--that those questions were probably thought out in advance, that they--that he knew they were improper, he should not have made them, and we're asking the Court to make the curative instruction that we've included in the letter and to sanction Mr. Goldberg. Thank you.

Thank you, Mr. Blasier. Mr. Goldberg.

Thank you, your Honor. Good afternoon.

Good afternoon, sir.

Mr. Blasier in his letter in summarizing the nature of the hypotheticals that he asked Mr. Matheson states on page 1 that--this is his paraphrase. "are there tests in existence that can determine the absence of EDTA in blood sample?" That's nothing like the question that has been read by Mr. Harmon and Mr. Blasier a few moments ago. It does not in any way convey the gravamen of the two questions that he asked. There was a second question which I also won't repeat because I know the Court's familiar with it about EDTA testing in connection with the socks. The gravamen of these questions is to clearly indicate to the jury that the items were tested and that no Ed--that EDTA was found in the items; therefore, raising the inference or the specter that the items were planted. It is clear if we are going to approach this in an intellectually honest way, something that--a concept that I'm not sure that my colleagues are familiar with, that what happened here is--

You know, Mr. Goldberg, I realize that you're--that this motion is directed towards you in a request for sanctions, but it doesn't help me decide these issues for that kind of rhetoric to be involved in it. And I thought I made it clear earlier. And I don't mean to single you out. You're just the latest example. But I don't think it's appropriate.

We discussed the issue of intellectual honesty when I last addressed this, and we discussed the issue of my comment regarding the propriety of this questioning, and I tried to explain to the Court what my philosophy was in the way that I go about arguing an issue before the Court, and I think it is important to understand that in order to place into perspective the comments that I had that the Defense is now suggesting constitute an admission that the questions that I asked of this witness were improper. And that is why I'm getting into it and that is why I think that it is necessary to discuss it to some extent, your Honor.

Well, I have to tell you, it's not helpful to my making a decision as to the request for sanctions and a curative instruction.

Okay. Let me move on then if I might.

All right.

Your Honor, what I am suggesting is that, if we look at the questioning that Mr. Blasier asked, is there a real belief on anyone's part that Mr. Matheson is an expert in EDTA testing? No. Is there any real belief on either party's side that he is going to illuminate us as to the issue of EDTA testing or add something to this discussion of evidentiary value? No, there is not.

But you would have to assume that somebody who's the assistant director of the crime lab has some fundamental working knowledge of gas chromatography since the LAPD's blood alcohol unit specialize--has, you know, highly specialized gas chromatography instrumentation available to them and they're responsible for the maintenance of that machinery and they're responsible for training chemists to testify in Court regarding gas chromatography. So I assume that he knows something about it.

And I agree. And if the only question were, as Mr. Blasier summarized it, are there tests in existence that can be used to detect EDTA, I would agree Mr. Matheson is qualified to answer that although his answer would be of little or know evidentiary value in saying yes, there are. In terms of how those tests are set up or what they mean or how to interpret them, I think we would all have to agree Mr. Matheson is not going to illuminate us on that issue. So analyzing what the Defense did in asking the two questions that they asked, it is to float out the idea that there was testing for EDTA and the idea that it was detected and the idea that the evidence was planted. And all I'm suggesting, your Honor, is that the Court with an enormous amount of experience both as a trial lawyer and a Judge can look at those questions and see that that is the underlying intent with which they were asked. So now the Defense has turned around and argued that I improperly asked questions that are from a legal perspective entirely the same or mirror images of the questions that the Defense asked that have no effect in front of the jury except to counteract the questions that they asked. In other words, to suggest the exact opposite of the questions that they asked, which was: "hypothetically, if you assume the testing was done and no EDTA was found, would that indicate that the items were not planted," or something to that effect. That was the import of the series of questions. So if theirs are improper, mine is improper. If theirs are proper, mine is proper. But they have not articulated any principal legal distinction of materiality between the series of questions that I asked and those that they asked. And the effect and the intent with which both parties asked these questions were exactly the same and the effect it would have in front of this jury is exactly the same. And that's what I was talking about when I was talking about my view of trying to approach it in an intellectually consistent or honest manner. That yes, I objected to their question because I felt that Mr. Matheson wasn't qualified to answer it and that he couldn't really illuminate it. And if I'm going to be intellectually consistent, then I have to agree that the questions that I asked should not have been allowed. But your Honor is the trial Judge. I'm not. And as the Court pointed out on Friday when we discussed this the last time, you have very wide discretion in terms of a hypothetical question. And once the Court has properly allowed that they--determined they are allowed to ask this question concerning EDTA evidence, then I am allowed to ask it, and I think the Court ultimately agreed with that position because after rereading the transcript, the Court did in effect allow us to ask a question that was materially the same as the one the Defense asked. The only difference between their questions and ours of legal significance and materiality is that we had a good faith belief in the factual basis for our question, because I read an FBI report that did in fact say no EDTA was found in these items. And counsel did not necessarily have a good faith belief as was articulated by Mr. Harmon, and that's why there's a relationship between the comments that he made and those I made which I won't repeat and also a potential discovery issue that Mr. Harmon raised. And it appears that what may be happening here is that the Defense is making allegations of prosecutorial misconduct to divert the Court's attention away from the real issue, which I believe are those that Mr. Harmon raised that I'm not going to repeat now. The Defense also complained of my turning to the jury several times during my questioning, which I did do. And the Court may also recall that this topic as well was discussed when Mr. Scheck did it. This is again something that is subject to the discretion of a trial Judge and there's no right or wrong answer in this regard. The same thing is true--

I recollect my comment was often times it's helpful to trial counsel to pay attention to what's going on on the faces of the jurors, and one can only assess that by turning to look at them from time to time.

And at one point, I actually did object at sidebar that Mr. Scheck appeared to be directing many of his questions to the jurors and some of the more argumentative ones, and the Court said that that was--that that practice was unobjectionable. So I don't see any basis for objecting now. The next thing was the objection that I made to the effect that the evidence that they were offering was without factual basis or contrary to the known facts. This is a proper objection to make for a hypothetical question because a hypothetical question usually has to be based either on something that is already introduced or in the trial Court's discretion, if an offer of proof has been made, you can allow counsel to ask hypothetical questions as to facts which will be introduced. So this is a proper way of trying to phrase a legal objection. So I don't see any impropriety in my making what is a proper legal objection. Next, the hand-shaking incident was raised. The hand-shaking incident was brought out or attempted to be brought out by the Prosecution after we asked Mr. Matheson whether Mr. Fung or Andrea Mazzola or anyone else ever made any comments representing enmity or anger or hostility to the Defendant. There was a hearsay objection that was raised to one of those questions, your Honor, but I believe--and it was sustained. I believe that my question did not call for hearsay because Mr. Matheson's answer would have said, no, Mr. Fung has never said anything to indicate any hostility towards the Defendant. So it's the absence of a statement that we were trying to prove, not the presence of one. Therefore, there is no declarative statement that was coming in for the truth of the matter asserted. It is relevant because we have to remember that the allegations that the Defense is raising are not that Mr. Fung has been incompetent or careless or so on, but that he is part of a conspiracy and that he has done a number of things in furtherance of that conspiracy, such as allowing the blood vial to be in the possession of the police overnight, allowing the police to come into the evidence processing room, doctoring exhibits and the like. And in order to counter that, I think we are entitled to put in information in evidence concerning whether or not Mr. Fung has ever expressed anything against the Defendant or to prove his lack of bias. That objection having been sustained on the hearsay grounds, the advocate is going to look for a non-hearsay way of trying to get in the same evidence. In other words, trying to show conduct of Mr. Fung. If we had evidence that Mr. Fung had a giant poster of Mr. Simpson, of the Defendant that he had autographed by the Defendant that he had in his office at the crime lab, that would be relevant evidence, non-hearsay evidence that we could introduce. If he always went around telling people how much he loved the Defendant or admired the Defendant, that would be relevant and non-hearsay evidence, would come in under the state of mind exception. The conduct of Mr. Fung that appeared to be unrehearsed at least on his part of shaking the hands and hugging the Defense attorneys and even the Defendant--

Hugging the Defense attorneys?

I don't know whether he hugged the Defendant, but there appeared that there was some embrace that went on between at least one of the Defense attorneys and Mr. Fung. Is relevant conduct evidence that goes to his state of mind at or around the time that the incident occurred. So it was a proper question. It may be a strange and unusual instance--incident to see happen in Court and the Prosecution may want to try to put on evidence of this in another form. But it was a proper question to have asked Mr. Matheson. If the Court believes that it was improper, as the Court apparently did, maybe it was the phraseology or maybe it was the lack of personal knowledge. An objection can be sustained, but there was no impropriety in trying to elicit information concerning Mr. Fung's lack of bias towards the Defendant.

All right. Mr. Goldberg, your time is about to expire.

And I would like to briefly mention that as to the DNA results, I don't recall asking Mr. Matheson any question about DNA results. I asked him whether it had been submitted for DNA testing, whether or not that could provide further information. I did ask a series of questions along those lines.

You did dance into that area regarding the blood underneath the fingernails, whether or not there had been any confirmatory testing.

I don't think I asked him for any results and I don't think I asked him whether that affected his opinion. I simply asked him whether that could be done to provide more information.

All right.

Your Honor, I also did want to see if I could address this issue as to the page 4, which they again introduced into their authorities, which doesn't directly relate to anything important--

No. We're not going to discuss page 4 again. All right. Thank you, Mr. Goldberg.

Thank you, your Honor.

All right. Mr. Blasier, you have time available for any brief response if you feel it's necessary.

Just very briefly. Thank you. After all we've been through together, I can't imagine that any counsel on either side of this table would think about asking that Fung question and do it without talking to you first. I mean that was just an outrageous question. Nonassertive hearsay conduct outside the Court, it's clearly something that if you really thought that this would be admissible, you'd better ask about it beforehand because it's obviously pushing the envelope way beyond. My comment about facing the jury, I have no objection to him facing the jury. It's just that it was a clear tip off, here comes a question that's improper and it's going to be sustained, and he's going to ask it so he can get the information in front of the jury right there where they can see it before you tell him to be quiet. And I think that's improper.

All right. Thank you, counsel. All right. As to the EDTA discovery matters, at this point in time, I accept the representation from the Defense that their decision whether or not to call Dr. Rieders will remain unsettled until the witnesses from the FBI testify and see what the natures of their testimony. As soon as that witness has testified, then we will revisit this area. And I'm sure Mr. Harmon will remind the Court after the FBI person testifies. As to the request for sanction against Mr. Goldberg, I'm going to decline to do that at this time. The Court sustained, I think appropriately, the objections that were made by the Defense. The manner in which the Court sustained the objections--the Court even sustained the Court's own objections before the questions were finished. I think the tone of the Court's voice, the eye contact the Court had with the jurors indicated clearly to the jurors that that was not a proper question, and I think there was some level of the Court's embarrassing Mr. Goldberg in front of jury, I think that was sufficient sanction. Counsel are going to be on notice that the Court is going to be much more weary about these hypothetical questions in the future since it appears I'm going to have to referee that as well. All right. We'll stand in recess.