Back on the record in the Simpson matter. The Defendant is not present, his presence previously having been waived by counsel. All right. Counsel, your appearances for the record, please.
All right. Good afternoon, counsel. I have a number of matters that have been submitted to me by the parties; and most recently since our last discussions, a letter dated May 12th, 1995 filed by Dean Uelmen on behalf of the Defendant. And I have a responsive letter dated May 16th filed by the Prosecution in response by Mr. Kelberg, and I also have five different sets of photographs that have been submitted to the Court. And in addition, since our last discussion, the complete autopsy reports. The most original letter to the Court dated April the 14th, 1995 included autopsy reports of both Mr. Goldman and Miss Brown Simpson, neither of which, however, were the complete autopsy with all diagrams and diagramming and addenda.
All right. My copy shows without. And, however, I was going to make a point for the record, since then, the Court has come in possession of the complete autopsy, as far as I know, as to each of the individual victims in this matter, and I have referred to those in preparation for any final argument that counsel wish to present. And let me thank counsel for their putting these arguments in writing as to each of the individual photographs because that helps narrow these down considerably. All right. Mr. Kelberg, since you are the counsel for the offering party, do you have any final comment?
No, your Honor, except to summarize I think the basic points. Number one, the Prosecution must prove all elements of the offenses charged. And despite what was said by counsel at our informal discussion, it is not relieved by counsel saying, "We're not disputing that there may be premeditation and deliberation," or, "We are not disputing that there may be malice with respect to both of these murders." The point is, as the U.S. Supreme Court acknowledges and as the Ewell case Mr. Kennedy acknowledged by citing with approval the case from the United States Supreme Court, we must prove these things. And it is not going to relieve our obligation by counsel making a tactical choice which they think may be to their advantage in securing a verdict that they hope to reach--for the jury to reach at the conclusion of the case.
The second point I wish to make deals with the significance of the photographs to proving the issue of identity for the reasons that I've expressed with Mr. Lynch in our response letter as well as in the original materials and how these photographs do demonstrate factors that will go to identifying the perpetrator as Mr. Simpson. Mr. Cochran went into cross-examination of Detective Lange to try and establish that these might be something called Colombian necktie or necklace murders by drug dealers going after a welshing client perhaps rather than, as Detective Lange said, the process of rage being borne out by a perpetrator against a target. If this is in fact a rage killing--and these photographs do show I submit to the Court that, at least a jury can find that these were rage-motivated killings and murders--that the jury will then want to think who has that motivation, who could generate that rage towards one or the other or both of these individuals. And the photographs do assist the jury, if they believe from the photographs that these are rage-motivated murders, that the perpetrator is in fact Mr. Simpson based on the domestic violence evidence and other evidence that's been heard by this jury concerning not only the past relationship of the parties, but all the events of June 12th of 1994. I also--
Should I infer from your argument regarding a rage killing that I should consider voluntary manslaughter?
No, your Honor. I don't believe that the Court is required to do that. I do not believe that the evidence, at least that I have heard--and I must confess that as interested as the public may be in this case, I actually have other responsibilities besides this matter and I have not had an opportunity to hear all of the evidence that has been presented. But I certainly, from the evidence I have heard and from the evidence from which I am most familiar, see no basis for this Court to say sua sponte that you see evidence that a reasonable man in Mr. Simpson's position under the circumstances would have his passions aroused to such a degree that this kind of activity that results in the murders of these two human beings shows an absence of malice. It is not, as the Court is well aware, a question of whether Mr. Simpson was a sensitive individual whose passions could be aroused, whose rage could be aroused by matters that would not cause a reasonable person's rage to be or emotions to be raised to that degree. And unless the evidence shows that it would be--that there is substantial evidence from which the jury could find that a reasonable person's emotions would be raised to that level, then not only is there no sua sponte obligation on the Court to give a lesser included of voluntary manslaughter, in my judgment, it would be improper for this Court to give that option to this jury.
Again, I do not speak for my colleagues who will be down I assume discussing the jury instructions and who are clearly more familiar perhaps with all aspects of the case than I am. But I give you my overview of my understanding of the evidence and also the evidence from the forensic pathology aspects. And I certainly see nothing that would suggest, from anything I have heard, that the evidence shows a reason for a reasonable person's emotions to be raised to such a degree that the absence of malice is established for voluntary manslaughter. The other points that I think are appropriate to be mentioned are that--the point somewhat related to the question you've raised, your Honor, of, you must give, in my judgment, second degree murder even if the Defense took a tactical view of saying, your Honor, it's a first or it's nothing with respect to both of these murders because there is in my judgment from the evidence I am aware substantial evidence from which a juror who is a reasonable juror could find the absence of proof beyond a reasonable doubt of premeditation and deliberate and the presence of malice, which would make, as to any particular one of these homicides, second degree murder rather than first degree murder.
I'm not saying that, as the Court is well aware from what I said at our last informal conversations, that the evidence is insufficient to prove beyond a reasonable doubt that each of these murders is a first degree murder. In fact, I submit there is certainly plenty of evidence from which a reasonable juror could so find. But I recognize what is the Court's obligation under the law to say whether or not there is any substantial evidence from which a reasonable fact-finder, that's the jury, could find a difference of view from what I view the evidence to be. If there is such evidence, it's a question for this jury to decide. And on that basis, it is the obligation of the Court under Wickersham to give both first and second degree murder and let the jury decide which is the appropriate degree. And these photographs go to premeditation and deliberation without question. For example, as the Court is well aware from our paper, the Prosecution contends that the last major wound inflicted on Nicole Brown Simpson was a major stab incise wound that runs from the left side of the neck over to the tip of the right earlobe and that that was inflicted at a time when she was incapable of offering any resistance.
And the evidence will show, as I offer an offer of proof, that that circumstance of how it was inflicted is most consistent with her being incapacitated on the ground in some fashion, having the perpetrator, who we contend is the Defendant, O.J. Simpson, coming up from behind her, placing a foot on the part of her back that has this non-specific blunt force trauma under the dress area and then pulling with one hand her hair and pulling her head back, which would obviously then expose the full area of the neck; and then with his right hand, taking a knife and drawing it across from the left to the right in the upward angle that is the appropriate angle created from such a positioning to cause what is this major wound that would sever both the carotids of the left and right and the jugular veins of both the left and right sides.
And that, your Honor, I think is evidence that the jury could use to find that this is premeditated and deliberate because after all, if this started as a matter of emotion and rage and it got out of hand, Nicole Brown Simpson would clearly be able to identify the perpetrator, and even if Mr. Goldman didn't know Mr. Simpson on any kind of social basis, Mr. Simpson is the kind of person who is hard not to be able to identify if in fact you saw the face of Mr. Simpson. He is a nationally, internationally known face. So there is certainly a motive provided to administer a coup de grace that would with certainty, with certainty lead to the death of a person who could quite clearly identify Mr. Simpson as the murderer in this instance.
So that's just one section of the wounds that are available. There are multiple fatal stab wounds to Mr. Goldman on the abdominal aorta, two to the chest. He's got a fatal stab wound to the left side of his neck and a fatal--a stab wound which has the appearance of being fatal, depending on the depth of penetration, because the wound area to the left side of the ear and also the wound that originates in the area of the ear share a common pathway. And so it's very difficult to determine which may have cut the jugular vein on the left side of the body. But in any event, a fatal wound. And these are clearly, clearly fatal stab wounds that can be interpreted by a jury as being inflicted when there was in fact limited if any resistance by Mr. Goldman and which would be certain to--I hope I said Mr. Goldman, not Mr. Golden.
No. You said--no. I was just--the reason the quizzical look, because I was just pondering how circumstantially you would come to that conclusion.
You can find from the appearance of the stab wounds, your Honor, as to whether they have a cutting component or they appear to have a direct thrust without twisting and torquing of either the knife or the body. And if the person is incapacitated, unable to resist, unable to move and the knife is thrust in a basically direct fashion into the body and removed, then you can have a stab wound which on the surface will not have a cutting component and give some evidence of this lack of twisting and turning. And that is evidence which I think the jury, number one, will hear about and, number two, can use to interpret whether in fact Mr. Goldman was in a position where he was offering any resistance, and if not, whether a thrust to that kind of vital area of the body reflects evidence of premeditation and deliberation. Clearly, I think it's no question, it reflects evidence of express malice.
Whether it reflects the kind of careful weighing of the pros and cons of one's action is another matter. And I'm not saying that necessarily a jury would find beyond a reasonable doubt on the basis of any one of those particular wounds that it does. But I believe it will be a matter for the jury to decide. So the Defense--to basically not rehash everything that we have said in our document, I think the Defense quite understandably is trying to take a position to keep from this jury the best evidence that exists of what we contend O.J. Simpson did to his ex-wife and to Mr. Goldman and to keep from this jury seeing that best evidence which will, when taken with all the evidence, establish not only premeditation and deliberation and express malice, but will also establish the identity of Mr. Simpson as the perpetrator.
We have exercised discretion, your Honor. The Court has all the available photographs from which we could select photographs to offer. We attempted very diligently to pour through these photographs and with a fine tooth comb go over them and see, all right, does this photograph show something that this photograph doesn't, does that photograph show something that the other one doesn't and do we need both, is there a cumulative effect to these. And we have with the greatest effort possible, your Honor, attempted to dwindle these down to the minimum number of photographs to establish for this jury the facts. It is no secret, your Honor, that there is in the public mind the view that the autopsies were not properly performed by Dr. Golden. And there is no question, as we have already discussed on the record the last motion that was heard involving Dr. Golden's prior mistakes, that the evidence will show he made a number of mistakes, he made a lot of mistakes. And the evidence I submit will show that not one of his mistakes is significant. But that is something that we must prove. That is something that will go to the question of the significance or lack of significance to any of the findings.
That will go to the significance or lack of significance of throwing away the stomach contents of Nicole Brown Simpson. All of these things come into play when the competency of what Dr. Golden did is legitimately brought into question. And the Defense has brought that into question. And as I point out in our response letter, even if they didn't under 785, the question of his competency is something which even the party calling the witness may go into on direct examination. I couldn't help but note somewhat ironically when I was quickly going over the transcript the last time we were here on the record on April 3rd, Dean Uelmen's remarks when we were talking about the evidence both of the alleged gun incident and talking about the incidents of mistakes made by Dr. Golden in 1990. Looking at page 2,100--I'm sorry--21,000--you've been at it much longer than I thought--21,484 beginning at line 25, Dean Uelmen saying: "Now, with respect to all of this evidence, what we are talking about is the weight and the credibility that the jury is going to give to the testimony of Dr. Golden with respect to some very key issues in this case, including the time of death, including the nature of the wounds, whether the wounds indicate that they were made by two different weapons as Dr. Golden indicated in his preliminary hearing testimony."
I might point out, your Honor, as I told informally Dean Uelmen, I believe that's a misstatement. I think the preliminary hearing transcript in fact reflects that what Dr. Golden said was all of the wounds are consistent with a single knife, but he cannot exclude the possibility of a second knife because a single-edged knife could have caused all of the wounds, some of the wounds could be caused by either a single-edged knife or a double-edged knife, and you cannot tell the difference. And on that basis, he cannot say to a reasonable medical certainty that a second knife could not be involved. But the evidence will show that a single, single-edged knife could have caused all of these sharp force injuries, these stab wounds, these incise wounds and so forth.
The second comment that Dean Uelmen made on page 21,487, line 23, again talking about this evidence--it's the Court actually saying: "Dean Uelmen, let's cut to the chase. What is interesting about this is an expression of bias against perhaps these attorneys and a demonstration of professional incompetence," which is I believe what Dean Uelmen was suggesting the evidence would be relevant to establish. And on 21,492, page--line 15, Dean Uelmen continued: "We have to note that one of the key areas in which Dr. Golden is going to be testifying is his examination of the wounds of the victims and rendering opinions about whether those wounds are consistent with a particular knife which he was given by Detective Vannatter, whether they are consistent with more than one knife and whether they are different morphological wounds."
I think it's quite clear that between Mr. Cochran's opening statement and Dean Uelmen's remarks at our previous hearing, that the issue of Dr. Golden's competency is brought into play and he does have involvement in matters that are of significance to this jury, the nature of these wounds, if one knife can cause all of these wounds. And I must say that unlike Dean Uelmen's letter, I believe as an offer of proof, the evidence will show that forensic pathologists do look at photographs and can tell from the appearance of the wounds on the surface of the body the nature of the knife that can cause a particular stab wound. We'll be hearing a lot about blunt ends and forked ends, and I think the Court probably from its experience as a trial Judge in a criminal court has heard these terms before and will hear them again and how you differentiate between a double-edged knife stab wound and a single-edged knife stab wound. And the photographs are the best evidence. They are really the only evidence that will clearly be available, especially where Dr. Golden's competency is called into question. So you take all of these matters into play, your Honor--and again, I understand why the Defense doesn't want the jury to see these photographs. But Justice Gardener had it right, and I think that's how we ended our response letter to the Court, when Justice Gardener said: "The average juror is well able to stomach the unpleasantness of exposure to the facts of a murder without being unduly influenced. The supposed influence on jurors of allegedly gruesome or inflammatory pictures exist more in the imagination of judges and lawyers than in reality.
"Second, a Defendant has no right to transform the facts of a gruesome real-life murder into an anesthetized exercise where only the Defendant, not the victim appears human. "Jurors are not and should not be computers for whom a victim is just an element to be proved, a component of a crime. A cardboard victim plus a flesh and blood Defendant are likely to equal an unjust verdict." Now, I know the Court is aware that we were to get together--and we did get together earlier today--to possibly discuss and work out any stipulations. I believe that the only stipulations we can work out are a conditional two stipulations that require the Court to make a ruling on the third element, but they deal with the two photographs of Nicole Brown Simpson clothed as she was seen at the Coroner's Office. And the stipulations that I believe we can enter into and the photograph be withdrawn, if the Court rules in a particular way, are that, number one, there is no evidence that Nicole Brown Simpson was sexually assaulted or that she was the victim of an attempted sexual assault in the course of the events which led to her murder.
Where we have the need for the Court to rule is whether or not there is any relevancy to the question of whether or not a sexual assault kit should have been taken on the theory that that sexual assault kit might show evidence of previous sexual activity on the part of Nicole Brown Simpson which the Defense might suggest is relevant in some fashion. Our position would be that it would be completely irrelevant or certainly subject to 352. And I'll leave it to Dean Uelmen and Mr. Shapiro to suggest how they believe it could be relevant and so forth. If the Court finds it is irrelevant, I believe that based upon the stipulations that I mentioned, if in fact they are agreeable with counsel, we will withdraw B1 and B2 as photographs. If the Court finds that, however, it is relevant to go into the issue of a sexual assault kit, then the People cannot enter into the stipulation because the photographs are extremely important to establish why no sexual assault kit was taken. And I think unfortunately that's going to be the limit of what we can agree upon. As the Court is well aware, the Defense has objected to every photograph and we have taken what I believe is a reasonable conservative view by trying to dwindle these photographs down to the minimum. I do not believe this Court will find from our descriptions and our basis of relevancy that any one photograph can take the place of any other photograph. There is a purpose to each photograph. And although some of the photographs on first blush may have some common nature in what they show, in fact every photograph does have a purpose that cannot be served by any other photograph in the select group that we have offered. On that basis, your Honor, I'll submit the matter.
All right. Let me--Mr. Kelberg, before you sit down, let me ask you one other question. I'm also curious as to the manner in which you intend to present these photographs.
I'm glad you mentioned that, your Honor, because--in fact, I was talking to Mr. Shapiro just before the Court started the afternoon session and I have given that great thought. With due respect to the people who sit in the audience through this trial, it is my position twofold, for twofold reasons, that the photographs should not be put on the overhead display. My position would be that these photographs would be, as they are in just about every other murder case that is tried in this building, put on boards and positioned for the jury to see. Now, it's my understanding in talking to Mr. Shapiro that Mr. Simpson would not object if the boards were positioned in such a manner that Mr. Simpson could not see the photographs as they are being displayed to the jury. And they would be displayed in my judgment, your Honor--I'm not that familiar with the dynamics of the cameras, but at least initially, my position would be to position them roughly in the middle of the jury box area so that jurors on both wings will be able to see as well as the jurors who are in front. And in so positioning, I don't believe the people who are behind me at the moment or those who will come and take their place will be able to see those photographs. In my judgment, there is a right of privacy that continues past death that both applies to the victim and to the victim's families who may or may not be present. There's also an actual relevant reason in my judgment why that is a better presentation than putting them overhead. Because we will have these--
All right. Let's assume that I agree with you that overhead projection is not an appropriate way to display these. The photographs that you have given to me appear to be approximately what, 10 by 14?
I don't believe so. I think they're 9 by 11 or 12 as I understand from what the Coroner's office produces. I haven't measured them to be candid with the Court, but that's my understanding.
With one exception. There is one what I would call a one-to-one photograph, which is in essence a life-size photograph. And I have it here. It is to the back area of Nicole Brown Simpson where the non-specific blunt force trauma is. And that photograph I would offer because quite simply, your Honor, it shows the area of the non-specific blunt force trauma much more clearly than the photograph that the Court has. The photograph itself is not significantly bigger as to the photograph, but without taking the photograph out, what I'm holding up is the size. It's got a big border around it in order to get the area up to one-to-one size. And I can approach with the photograph if the Court wants to see what it looks like.
So I can leave the package if the Court wants to take a look or you'll take my word for it?
And that is the only one. But otherwise, obviously, if you put them on boards, your Honor, they have to be big enough that the jurors can see and they can't be so small that the detail is not apparent. So what we believe is that this is a reasonable accommodation. This is roughly the size that is commonly used in courtrooms throughout this building and throughout this county when homicide cases are being tried. So that would be my preference, to do it that way and keep the jury, which quite frankly are the only 17 people who matter as far as seeing these photographs besides Court and counsel, aware of what they are going to be hearing in the way of testimony and correlating it with the photographs. And on that basis, I would like to do it in that fashion and not have anything in the form of a photograph up on the overhead.
Good afternoon, your Honor. I want to direct my comments specifically to the issue at hand; and that is the autopsy photographs that the People are offering to have displayed before the jury. Clearly, these are pictures that are horrendous to anyone, even trained professionals, especially the up-close and sterile photographs of the throats of both of the victims in this case. They are further exaggerated by the fact that some type of block was put by the Coroner under the neck to take the wound and open it up so that you can clearly see into the interior of the throat. If there was ever a photograph where the prejudicial effect would outweigh any probative value, the photographs of this neck in this condition certainly do. The danger that counsel spoke about--
But, do you know--Mr. Shapiro, do you know what specific photographs you're referring to?
And the Court must look at these. And even though you don't see the brace there, I can tell you from our experts--and I don't think there's any dispute--that the neck is propped up in a way to attenuate and exaggerate the injury. As far as whether or not this jury will see sterile or get a sterile view of this crime scene, I don't think there's any chance of that happening. The testimony to date and the crime scene photographs have been described as being a very, very bloody scene, one of the bloodiest that the detectives have witnessed or investigated. So that's not an issue. The issue here is what does the jury get that they can't get from another source by these photographs that are likely to cause revulsion and horror on the part of anyone who looks at them .
And I would say the Coroner is here to offer testimony on two issues. First, the cause of death--and quite frankly, there is no dispute between the parties on the cause of death on this case. Both victims died as a result of serious injuries to the throat. They will be more specific as to whether it's the carotid artery on one, the jugular vein, but both of these were victims were killed by knife wounds to the throat, and that is not an issue. The second is time of death. And the photographs in no way offer any evidence whatsoever that will help this jury in the time of death. As to the type of weapon, since no weapon has been recovered, the type of weapon is irrelevant, unless it can be shown that there is some nexus between some weapon connected with Mr. Simpson. And we have received no discovery on that whatsoever. As to whether there was one or more perpetrators, then the issue comes down to whether or not the injuries are only consistent with one weapon or could have been caused by more than one weapon. And the testimony has already been proffered in that and there will be no dispute. Counsel has informed me that Dr. Lakshsmanan and Dr. Golden will both be testifying that they could have been caused by more than one weapon.
So when we get to the real issues before the jury, there can only be one reason to display these photographs. And that is to inflame the passions of the jury so that they are more likely to convict than acquit based on the nature of the autopsy photographs, not the crime scene photographs which are already before the jury. In addition, counsel has informed me, as we would expect, that they are going to do charts to demonstrate the location of each and every injury. And again, the jury will then have a clear view of these injuries. So in order of importance, we would respectfully request the Court to consider the following: That any autopsy photograph of a cleansed throat wound that is propped up is totally improper and has no probative value whatsoever. That the full-body photographs of both of the victims clothed or partially clothed are only inflammatory and duplicative of photographs at the crime scene, and to see them on a sterile table causes nothing but to inflame the jury. Counsel's argument about the fact that a sexual assault kit was not used on these victims, therefore, they want to show the clothing really is not of any moment because we are willing to stipulate that these deaths were not caused as a result of a rape or sexual assault.
On the other hand, we believe that a sexual assault kit should have been taken and that probably their own witnesses will agree with that to establish time of death. You can determine whether or not there was any sexual activity that took place with the victim, and at that point in time, that may be a way to establish when the person was last alive. At least, it's something to explore. And a clothed or unclothed body has nothing to do with those photographs. And then the last thing which I believe has some evidentiary value, but again the prejudicial effect outweighs it, are the individual stab wounds in the body. And there when you get down to the issue of the type of weapon and how many weapons were used becomes important. So for isolated photographs of that, even though we believe they can be demonstrated on boards and drawings, certainly we would say that in a weighing process, that one certainly at least weighs closely. And again, we would ask they not be included before the jury because we don't think that the probative effect is significant and that the prejudicial effect is great. But clearly, your Honor--you've been in the courts your entire legal career, and I would say it would be very rare that anyone would look at these photographs and not really get sick to their stomach no matter how many photographs you've looked at, no matter how many crime scenes you've seen and that adding the autopsy photographs can only do one thing; and that's infuriate and inflame the passion of the jury. With your permission, I would prefer if Dean Uelmen addressed some of the other issues that were raised, especially if you want to get into jury instructions, things like that. I can do that if you want to stick to the one-lawyer rule.
Thank you, your Honor. I will be mercifully brief. I was watching Rumpole of the Bailey last night and I'm going to borrow a line from him. He suggested in the case he was litigating that there was a real danger of premature adjudication. And I think we have that danger presented here in terms of the issue of premeditation, deliberation and malice in the context in which it's being presented in this case. Clearly, the Prosecution does have the burden of proving these elements beyond a reasonable doubt. But the issue that your Honor has to address is whether there is need for this evidence to prove these elements in the face of any real issue being presented in the case in the context of a case in which the Defense is really not putting these factors in issue in terms of the Defense that is being presented. Clearly the Defense being presented from the outset of this case is that Mr. Simpson did not do it. Not that it was done without premeditation or without malice, but that he didn't do it. So the position of the Defense will be that it would be inappropriate for the Court to instruct the jury as to lesser included offenses because those instructions would be inconsistent with the Defense being presented. And we will at the appropriate time present authority to the Court. I can--if your Honor wishes to look at some of these cases at this point, we'll be relying on People versus Trimbell, 16 Cal. App. 4th 1255, a 1993 case, and People versus Hardy , 2 Cal. 4th 86, a 1992 case for the proposition that it is improper for the Court to give instructions as to lesser offenses over the objection of the Defendant when those instructions are inconsistent with the Defense presented. Now, there are other cases saying that the Court on its own may instruct as to lesser offenses that are consistent with the Defense, cases such as where the Defendant maintains that it was an accident. And the issue that's presented by the evidence is the intent to rebut or to contest the showing of an accident, but it's not inconsistent with the Defendant's admission that he actually did the act. But here we will have a situation in which these instructions would be inconsistent with the Defense. But again, I come back to the point that your Honor doesn't need to decide at this point what instructions are going to be given to the jury with respect to lesser included offenses.
What your Honor needs to decide at this point is whether this evidence, which is highly inflammatory, very prejudicial in terms of the emotional response it is likely to invoke from jurors who have never been exposed to photographs of this nature before, in terms of what is actually at issue in this case, what issues the jury actually has to decide. And our contention is of course that all of these elements can be proven, the Prosecution can meet its burden without burdening the jury's ability to rationally Judge this evidence by highly inflammatory and emotional evidence. The second quick point I wanted to make was very specifically directed to photos G1, G2, G5, B1, B2 and B5. These are the full-body photographs. And your Honor will discover that the only wounds referred to by the Prosecution that appear in these full-body photographs that they claim do not appear in the more detailed closer photographs are abrasions. There are no knife wounds. And if they're saying the real need for these pictures is to illustrate the nature of the knife wounds, the nature of the abrasions is not going to be an issue. If it is, of course, they can just prop a very close-up photograph of the abrasion. But to allow in these full-body photographs simply to show the presence of an abrasion that is not really going to even be an issue with respect to any of the testimony that's going to be elicited again really weighs on the side of overwhelming prejudice being balanced against a very minimal probative value.
But what would you say in response to the argument that those are necessary to show the nature of the struggle that went on there?
Well, the answer of course is that these photographs don't show the nature of this struggle. Perhaps individual wounds, if there's going to be opinions offered with respect to how a particular knife wound occurred, for example, Defense wounds on the hands, that sort of thing, that's not what these pictures show. They simply show the entire body laid out without enough detail with respect to any of these wounds to draw any conclusions from them. The conclusions they want to draw will come from the very detailed close-up photographs with respect to the knife wounds, and none of the very minor abrasions that they point to that appear in these photographs that don't appear in the others really are going to be relevant with respect to litigating any of those issues. So with respect to these six photographs, there is really no need to expose the jury to them in terms of any of the issues we're talking about litigating. Now, the final point I wanted to make was, with respect to individual photographs being used to show the nature of the wounds, the real gist of the People's argument to utilize these photographs is that they want to anticipate the challenge that they see coming with respect to the competence of the Coroner in terms of the conclusions that he is going to draw.
Well, hasn't Mr. Cochran in his opening statement sort of fired the salvo across the bow of the Prosecution's ship here?
Well, the salvo was a very--it was not specifically directed at any particular wounds with respect to the competence of the Coroner. And what we're dealing with here is, in effect, an argument that because we have an incompetent Coroner, that should give us a wider entry to tracking out all of the full color photographs taken during the autopsy and showing them to the jury even though if we had a competent Coroner, this exercise would be unnecessary. I would fully concede that if we get up and we challenge the Coroner and we say, "your conclusion about this particular wound is incompetent. There's nothing here in this wound to justify the conclusion that you come to," and the Coroner is then in a position of having to explain how it is that the conclusion is justified from the wound, that the best thing to do is bring out the photograph. And obviously we will have opened the door then to allowing that photograph to be used and we will have nothing to complain about if the photograph is then used. But what they are proposing is to anticipate that such a challenge will be made with respect to every one of multiple stab wounds of both victims and that therefore justifies them on their direct examination before we have even challenged the Coroner to bring these photographs out and display them to the jury. And I think a much more rational approach to this process would be, if a particular challenge is made with respect to a particular wound, all right, we'll bring out the picture. But until that happens, there is no relevance in terms of any contested issue to require that this highly inflammatory evidence be presented in advance.
Well, Dean Uelmen, haven't we also got the problem though where you have asked permission of the Court to use two cases in Dr. Golden's past autopsy history where it's conceded that he made mistakes on certain opinions that he rendered regarding other wounds? I can't recollect--
Your Honor, it's incorrect to say that we asked permission. We responded to a motion in limine filed by the Prosecution--
--to prevent us from asking those questions. And of course, our argument was that these prior incidents will be relevant in terms of the weight that the jury should give to the opinions of the Coroner in terms of his competence.
I'm glad to see that Dean Uelmen and I share a fondness for Rumpole of the Bailey, but unlike last night's episode, I prefer to recall--
He was the client last evening. But I prefer to recall an episode from several seasons ago where Rumpole was regaling others with respect to a criminal homicide case where he defended an individual charged with murder, and he referred to the case as a case of blood. And he relished in it because he brought out his forensic pathology textbook and he was able to cross-examine a forensic pathologist on blood evidence and to basically show that in fact, a mistake had been made in an interpretation by the expert; and as a result, his client was acquitted. And he relished that. Well, this is a case of blood, and it's a case of blood because it has been made so by the Defendant's actions. This Court must recall that the standard to apply on these photographs is not whether the prejudice outweighs the probative value, but whether the probative value is substantially outweighed by any prejudicial effect. Now, as counsel talks about just briefly, going through the issues, Mr. Shapiro says the type of weapon is irrelevant unless we can tie a weapon to Simpson. Not true. If the jury believes, as the evidence will show, that one weapon could have caused all of these stab wounds, then the jury is going to ask itself, okay, who is physically superior, agile and has a motive to murder these two human beings? If one knife could do it, who's a person who physically could do it with one knife and who would have a motive to do it with one knife? And of course, your Honor, I anticipate my colleagues at the end of the case will suggest that the person who fits that criteria is seated at the end of counsel table when the jury will hear those arguments. The second thing is about the time of death in the sexual assault kit--
That's--I put--actually-- I'm sorry, Mr. Shapiro--that shows I haven't been watching. I gather Mr. Shapiro sits at the far seat at counsel table unlike the usual situation, but obviously I added the caveat that when the jury hears the argument. But actually, Mr. Shapiro may be the one who's at the far end of counsel table. We'll have to change that to the person who's kind of snuggled between Mr. Cochran--and I'm not sure who is on the other side at the time of the jury's appearance. The time of death in the sexual assault kit. Counsel it seems to me has got to offer some evidence how a sexual assault kit to show sexual contact unrelated to the criminal homicides that are being prosecuted here will tell this jury whether Nicole Brown Simpson died at 10:15 versus 11:00 o'clock. The evidence is clear already she was alive at 9:42, telephone call, telephone records. We know she was alive a period thereafter. Why? Because she talked to Ronald Goldman.
She called Mezzaluna restaurant. And there's been a witness who testified that she called and who then put her in contact with Mr. Goldman. We know Mr. Goldman's alive at that time because he's on the other end of the line and we know he's alive for some further period of time because he's got to go home, he's got to change clothes because when he's murdered, he's not wearing what he was wearing at Mezzaluna restaurant. Now, is the Defense going to actually offer a witness who is going to say that a sexual assault kit would have shown if there was semen found, that one can determine whether that semen was deposited between 10:00 o'clock in the evening and 11:00 o'clock in the evening? I would like to see that expert and I would love to cross-examine that expert. I don't think they're going to have somebody who is going to be willing to come into court, take an oath to tell the truth and talk with reasonable medical certainty that such a thing exists. It does not. And unless they can put that into an offer of proof of a real witness with real credentials, I submit to the Court it's completely irrelevant. If the Court finds it's irrelevant, I have no problem stipulating, and we'll withdraw B1 and B2. But I don't believe that they can show it's relevant, and clearly, 352 comes into play even if a 782 type of analysis that would normally apply with victims of sexual assaults and limitations on cross-examination for unrelated sexual activity might not be appropriate to discuss. A few other points. The nature of the assault is extremely important because if the nature of the assault is such that the jury finds that there was a very short and very violent attack on Mr. Goldman from which he basically was unable to defend himself and at the same time on Nicole Brown Simpson, she has relatively few if any injuries, it will be clear to this jury how one man could kill these two human beings in the short order of time it would require and leave the kind of evidence that these photographs demonstrate were left from the murderous assault. Now, with respect to the lesser included's--Hardy, I haven't looked at in a while. I'm not terribly concerned about Trimbell because it's a Court of Appeal case and we have Wickersham which to my knowledge has not been overruled. There is a difference with respect to instructions on affirmative Defense related type of lesser offenses. But that's not the same thing as lesser included offenses. And as we quoted in our response letter, Wickersham says, the tactics of counsel do not control the obligation of the Court because it's the Court's obligation to see that justice is done, that jurors are not put in the untenable position of saying to themselves, hey, you know, I believe this person's guilty of second degree murder, but I don't think he's guilty beyond a reasonable doubt of first degree murder. But gee, I've only got the option of first degree murder or finding the person not guilty. Am I supposed to acquit a murderer because I'm not convinced he committed first degree murder or am I supposed to convict a man of a crime I don't believe he committed, first degree murder, simply because I'd rather see him convicted of first degree murder than walk out the door because I believe he's a second degree murderer. And that's the Hobson's choice I mentioned before that the Court is to ensure this jury need not be placed in to making. With respect to the G1, G2, G5, B5--B5 I think in our original letter, your Honor, we have pointed out, that will be cropped. And the G5 cannot be cropped because it also shows the abdominal flank wound, the fatal abdominal stab wound on the left flank. But because as to Miss Brown Simpson, the lower torso leg area is not relevant with respect to the purposes of that photograph we have submitted in the writing, and we have not cropped it because we want to see what the Court wants us to do with respect to the photograph. But it would be cropped so that the Court is clear. We get back to Dean Uelmen's letter, and he's saying, hey, look it, we get to raise the issue of incompetency. And as the Court says from its recollection, it seems that Mr. Cochran's already done that. Let's face it, Judge, does the Defense get to open the door, then slam the door closed on the Prosecution when it wants to bring the full facts out and then open the door again when they do cross and make it appear to this jury that this Prosecution is trying to hide from this jury the true facts of what Dr. Golden did or didn't do? As we said again in our informal discussion, is the Court going to tell this jury, oh, ladies and gentlemen, the reason the D.A. Didn't bring this evidence out of Dr. Golden's mistakes is because I said, in accordance with the wishes of the Defense, that they couldn't do it and that it was only if the Defense went into his incompetency that the Prosecution on redirect examination can go into this? There is such a thing as credibility with the jury, your Honor and credibility to the system of a search for the truth, and we intend to be fully credible. In setting aside 785 which says a party calling a witness can attack that witness' own credibility, the fact of the matter is that the purpose of these photographs is not to show that Dr. Golden made mistakes. The photographs will in fact show that he made mistakes. The purpose of the photographs is to show that O.J.
Simpson murdered these two human beings and murdered them with premeditation and deliberation. There will be the concomitant effect that Dr. Golden's mistakes will be brought forth, and they will be brought forth fully and with candor on direct examination as we are entitled to do and as this jury is entitled to hear. But make the record clear that we are not using the, quote, real purpose that Dean Uelmen attributes to us of trying to bring forth Dr. Golden's incompetency for the purpose of getting otherwise irrelevant photographs before this jury. We are bringing these photographs forward because they will show that one perpetrator sufficiently motivated with the physical strength and agility murdered these two human beings in the span of a very short period of time. And these photographs will prove that. And unfortunately for Dr. Golden, they will also prove that he made a number of mistakes, and they will also prove that not one of his mistakes bears any significance to the case. I'll submit the matter, your Honor.
All right. Madam reporter, how are you? I had a question I needed to ask of Mr. Kelberg.
Mr. Kelberg, Dean Uelmen does raise the issue regarding the exaggeration of the nature of some of the wounds by the Coroners placing the block on G37, B13 and B16, which does expose it in a manner that appears unnatural.
It is not necessarily unnatural, your Honor. The reason there is a gape to these wounds is because of something called Langer's lines. The way the tissue is in the body, when you cut along that line, you are going to cause the wound to separate and it will appear to gape. But the pictures show not only that it is a gaping wound, but they will give an indication of the depth of the wound and they will show, for example, in the case of Nicole Brown Simpson, that what's called the right thyroid cornu, C-O-R-N-U, was cut by the knife because it went that deep. It will show the area of the cervical spine that was also contacted by the knife going that deep. It will show the area how deep you must go to get to the jugular, how--
Okay. It also shows two superficial incise wounds, very superficial. The Court will recall them, they're parallel, almost parallel. I think we described them as semi-parallel in G37, Mr. Goldman. I don't know if the Court wants to pull the photograph and refresh its recollection. That's a very significant photograph. Besides it shows so many of the injuries, those superficial incise wounds in a parallel nature suggest control, control of Mr. Goldman by the perpetrator. And again, this is material that will go to premeditation and deliberation.
All right. So that this photograph shows many things besides the nature of the stab wound. The stab wound which is shown in G37 if I may pull mine and turn it so--I just want to be sure that I am covered.
I would direct the still photographer and the television camera not to attempt to--Mr. Kelberg, you're doing that the exact wrong place.
Oh, I'm sorry. As I said, I don't know the dynamics of this court. Can the Court direct me to where the black spot is where apparently no one can watch you? Can I crawl under the desk or something? Let me see if I can do it this way.
Almost like playing cards unfortunately, your Honor. The photograph in the appearance of the stab wound here on the left side of the neck to Mr. Goldman is relevant because, as we again mentioned at the informal conference, Dr. Golden in his original report interpreted this stab wound and a stab wound here around the left ear and then going down the side of the face as being the product of one wound. And in his addendum, which is also part of the materials I think you, if you didn't have with our original letter, you do now have as part of all of the autopsy materials, he changed his opinion to reflect two stab wounds. That wound is important to see for the purpose of interpreting is that one stab wound producing two injuries or is it two stab wounds producing two separate wounds. With respect to the G13, G16 and in particular, the major wound that is the gaping wound, what will be important, your Honor, is, those photographs show that there is no cutting around the margins of that incise stab wound, which will be significant for the Coroner to conclude from the absence of that that Nicole Brown Simpson was incapacitated and unable to resist the knife that is being drawn across her throat, that the absence of that kind of cutting action along the sides of the wound demonstrates that she was in fact incapacitated because normally, if you were physically able to respond, you would be moving your head around; and in so doing, you would create margins around the outer edges--I am sorry--cuts around the outer margins of that incise stab wound. And, your Honor, again, these are not unnatural because in fact, that is the way her head was in fact held at the time the stab wound/incise wound is inflicted. It is most consistent with the head being held back and exposing the full area of the neck to create that kind of gape.
Your Honor, with regard to the depth of the wounds on either of the victims, we are not going to contest that and we could stipulate to that as a matter of fact. Mr. Kelberg demonstrated how easy it is to simply articulate that. One need not look in someone's throat if somebody offers competent testimony that they have a sore throat. And the same thing here. We need not look into the actual cavity of a body to determine an injury that can be described without contest by the Coroner. With regard to the competency issue, if Mr. Kelberg in fact is telling your Honor that the Coroner who did the autopsy in this case is incompetent and they have a duty to bring that forward, don't they have an equal duty not to present a witness who is incompetent? And finally, with regard to the need to do a sexual kit to determine whether there was any sexual activity, we are not required to tell the People what our Defense is, but we could easily suggest to your Honor a scenario that if we can account for the whereabouts of Nicole Brown Simpson the entire day up until the time she left Baskin and Robbins and put her with other people and show during that period of time, that when she was at a concert or at an ice cream parlor or in the accompaniment of her children, that circumstantially no sexual activity would ever take place, but that there was evidence of sexual activity, the window could be narrowed to a time after perhaps she had a visitor. And I think that would be very relevant evidence to this jury. Thank you.
As to what Mr. Shapiro said about what we have an obligation to do or not to do in the way of presenting witnesses. Very briefly.
No, I don't think you need to address that. All right. Thank you, counsel. As you know, this involves--
Your Honor, I have to correct something. I said Baskins and Robbins. It was Ben and Jerry's. Mr. Dean Uelmen pointed that out to me.
All right. Counsel, as you know, this involves literally dozens of individual decisions that I have to make with regards to each one of these photographs. So it will take me some time to again go through them individually. But I will issue a written ruling as to each one of these.
Mr. Kelberg, my guess is that we will see Mr. Sims probably for the remainder of Monday and perhaps into Tuesday. We will probably see Miss Montgomery probably maybe even for the remainder of the week. Maybe less than that.
I had a somewhat different timetable presented. I talked with Mr. Shapiro, Dean Uelmen again. I think no one is certain. We have to be prepared to go sometime next week, although I think we probably both agree or all of us tend to agree that it's more likely it would be the Tuesday after memorial day as a starting point. But I believe there's another witness besides Miss Montgomery who will be called as part of the DNA presentation.
No. That's actually not the name--I believe Mr. Yamauchi is going to be called. I'm not sure whether there's anybody else besides Mr. Yamauchi and Miss Montgomery, but I was led to believe we had two witnesses for certain after Mr. Sims has completed his examination.
Let me ask you the more important logistical question. How long do you need to put this exhibit together?
If in fact it's going to be after memorial day and the Court could issue a ruling by late next week, that would be fine. But if we get a situation where we have to go sometime Thursday or perhaps Friday morning, I would certainly like to have a decision by as early on Wednesday as possible to have the time.
I think we would need more than one full working day. It depends again on--we have had boards that are prepared in a mock-up situation so that depending on which photographs the Court allows, we are going on the assumption initially that our photographs that we have proffered will be admitted. And as a result, the boards are prepared with an outline as to the photos that we have proffered. If the Court restricts us in some fashion, then we have to modify one or more boards, that will take a little time. I don't anticipate a great deal of dime.
All right. With regards to your boards, do you anticipate anything other than photographs themselves?
Yes. And actually I think Mr. Shapiro misunderstood what I was telling him as far as a wound chart. It is a chart, not drawing of wounds that relate to this case. But in fact, it will be a summary of all of the findings of Dr. Lakshsmanan Sathyavagiswaran who will be one of the witnesses that I will call in the area of forensic pathology. It will summarize all of the findings. It will identify where in the protocol or the addendum or in the appropriate diagrams the wound is either seen or described. It will also point out mistakes that in the opinion of Dr. Lakshsmanan--I won't pronounce his last name any more times than I have to--where they are in his opinion seen and giving an overview of his significant findings. I believe this will be of enormous assistance to the jury in following with the photographs. The only other things that I would--
Well, keep in mind the Court's caution about things that are--go beyond description and go into argument.
No. These would be fully I believe admissible opinions. Obviously anything that's listed as far as this is an abrasion or this is a contusion or whatever is an opinion, which would be testified to. But because of the number of injuries and, quite frankly, the number of instances where they are not addressed in the original protocol or perhaps not diagrammed in the original documents or not addressed at all even in the addendum, we have in this chart form a way of conveying this information, which quite frankly, your Honor, if you look at the autopsy reports, as you have undoubtedly done, and then you look at the addendums, you can spend a whole lot of time trying to piece together one with the other and trying to figure out how you can make sense of this.
And that's what this chart avoids. The only other thing, we would have the original autopsy materials and the addendums available so that one can see where these things actually are, if they're diagrammed or where they're described. But I would anticipate spending little if any time with respect to anything more than showing the jury where they can be found or where the diagram may show a particular wound. Those would be the major things. We have some charts that deal with overviews of the topics of sharp force injuries just so the jury can have an understanding of what that topic is, how you use a knife and look at its dimensions and correlate it with depths of wounds and widths of wounds and lengths of wounds to assume or trying to form an opinion as to the kind of weapon. We have time of death charts because, as I think both Dean Uelmen and Mr. Shapiro have said, time of death appears to be an issue that everyone wants to talk about. And I think by the time we have completed our presentation, we will have a very knowledgeable jury about the intricacies and complexities of estimating a range for time of death.
Because of the completeness and candor of the direct examination, I would anticipate perhaps three days with Dr. Lakshsmanan.
Dr. Golden, I would anticipate will have a shorter direct because I believe most of what needs to be covered will have been covered through the earlier witness. But I can't speak as to what the cross-examination would be as to either.
All right. When do you think these exhibits, the ones that you've just described, will be available to exhibit to Mr. Shapiro so we can take up any objections ahead of time.
I understand that. And we want that as well. Quite frankly, your Honor, we're trying very hard to get them completed through the services that are available. I would anticipate next week. I have indicated that we wanted everything done by Wednesday of next week on the assumption that we might have to go on Wednesday of next week. It sounds to me from what the Court is saying, that's probably not realistic, and from what Mr. Shapiro has indicated, is not realistic. But if we can have them by Wednesday, then I think we have an opportunity to meet with counsel, show them what we have and go from there.
Doing the photos? I think if the Court is correct in believing that we go to the end of the week with the witnesses that the Court is already aware of and then we start on the Tuesday after memorial day or someday thereafter, that if the Court could give us a ruling by let's say Wednesday or Thursday, Wednesday or Thursday of next week, that will be sufficient time be able to do what we need to do.
All right. I'm going to order the Prosecution then, Mr. Kelberg, to notify Mr. Shapiro as soon as you have those other display boards available to make them available for counsel to see so we can take up any objections before hand.
There is one other thing that I wanted to place on the record. We've discussed it also. The incidents that were the subject of our previous motion regarding Dr. Golden's mistakes arise from a segment of prime time live. In that same segment, they refer to two other cases of Dr. Golden's in which it is alleged that Dr. Golden made mistakes. In a letter that Mr. Hodgman sent to Mr. Shapiro dated May 3rd, we asked Mr. Shapiro to tell us whether or not he intended to go into those areas. We would raise a different issue than we raised with respect to the first two incidents because we would contend no mistakes were made. Unlike the other incidents where we agree mistakes were made, we contend in these two cases there were no mistakes. If counsel intends to go into that, we would ask for a 402 hearing before the testimony of any forensic pathologist called by the Prosecution to see whether or not that's fair game.
Your Honor, I really can't make that decision yet, and the reason is, it appears from what counsel has stated that they are going to impeach their own witness. And, therefore, further impeachment by us would only be cumulative and be redundant. So if that in fact is what the Prosecution is going to do, I would say we won't have any need to--much cross-examination at all of Dr. Golden.
All right. Thank you, counsel. We'll stand in recess as far as this case is concerned until 9:00 o'clock on Monday. Thank you.
A Defendant has no right to transform the facts of a gruesome real-life murder into an anesthetized exercise where only the Defendant, not the victim appears human. Jurors are not and should not be computers for whom a victim is just an element to be proved, a component of a crime. A cardboard victim plus a flesh and blood Defendant are likely to equal an unjust verdict.
There can only be one reason to display these photographs. And that is to inflame the passions of the jury so that they are more likely to convict than acquit based on the nature of the autopsy photographs, not the crime scene photographs which are already before the jury.
The last major wound inflicted on Nicole Brown Simpson was a major stab incise wound that runs from the left side of the neck over to the tip of the right earlobe and that that was inflicted at a time when she was incapacitated on the ground in some fashion, having the perpetrator...placing a foot on the part of her back...pulling with one hand her hair...and then with his right hand, taking a knife and drawing it across from the left to the right.
I was watching Rumpole of the Bailey last night and I'm going to borrow a line from him. He suggested in the case he was litigating that there was a real danger of premature adjudication.
This is a case of blood, and it's a case of blood because it has been made so by the Defendant's actions. This Court must recall that the standard to apply on these photographs is not whether the prejudice outweighs the probative value, but whether the probative value is substantially outweighed by any prejudicial effect.