All right. Back on the record in the Simpson matter. All the parties are again present. The jury is not present. Counsel, anything we need to discuss before we invite the jurors to rejoin us?
Your Honor, just the--our intention to use the stereomicroscope and have Mr. Sims describe what he saw when he looked at these samples or these socks sometimes in the presence of Mr. Blake way back in November. So there's nothing new he's going to testify about. But I--I'm not sure if the Court has had a chance to look at it. If you want to go ahead with what we have--I don't have a lot more. I hate to try to predict, but less than 30 minutes. So I--this might be the time to take it up or just take a break.
I'm not sure what Mr. Harmon is proposing as he--in terms of the stereomicroscope. Is--obviously, Mr. Sims cannot demonstrate today what he saw under the stereomicroscope before he did his cuttings because he's done his cuttings. He's testified about it. I think it's--I don't see how that's within the scope of the redirect examination at this point.
It's one of scope and also the additional one that we raised before with respect to trying to use this witness to bolster--to in effect redirect Mr. Yamauchi on points that were made with Mr. Yamauchi's cross-examination.
It's--it's--Mr. Sims testified on direct examination quite extensively about his examination of the socks and how difficult it was to see them, and when we saw the exciting video of those socks, Mr. Sims was cross-examined by Mr. Scheck about his examination of those socks. I mean, it seems like a whole lifetime ago that that happened. So I--and sometimes I try to block these things out, but I do recall that. What I wanted to do--and I--when--I think the objection is silly and it really exalts form over substance because at the sidebar, I commented--not facetiously--that that's fine. If we're going to exalt form over substance, then I won't do it on redirect, and he'll just stay here whenever Barry's done the cross-examination, and I'll recall him on it. So we have a right to address it and--
We have a right to address it and I'd hope for once, we won't exalt form over substance and let us address it while he is on the stand now. I believe it's within the scope of the redirect examination. And I think what you need to appreciate, your Honor, because that's the--if that's the only objection, you either agree with me or you don't, and I'd just like you to know that I will call Mr. Sims whenever he is done with whatever is appropriate in the scheme of things. We do have time before Mr. Kelberg starts on Friday. So we'll be happy to do it whichever way the Court chooses. But I don't believe it's beyond the scope of the cross-examination. If you'd like me to get to the substance of the proposed testimony, I'd be happy to do that too.
Sure. The offer of proof is that Mr. Sims testified in great detail about his examination of the socks. If the Court--the Court had requested that I provide notes. It's not written up in the report because it's not a reportable event as a lot of things are not in the final report. But page 117 is a sketch of the socks. And I'm sure you have as much trouble as I do reading Mr. Sims' handwriting, but you can see where he's designated stains that he did typing. And I think I need to couch this in the context of the Court's previous rulings on phenolphthalein. It is my understanding that the Court ruled that a presumptive test--and in that context, it was phenolphthalein--alone would not be--presumptive positive would not be allowed. And at the point when those discussions took place, we were talking about a single stain and a single spot and we weren't talking about a blood spattered item like sock B, 13-B is. We were talking about, as I recall, single items where no further testing of those items, because they were single items, existed. And I think to me, that's a major distinction because that wasn't before the Court at the time. This sock had--the area in question that Mr. Sims--and it's the only one that we want the jury to look at--if you look towards the rear above the ankle of the sock there, there's a designation of 42B1. Mr. Sims did these orthotolidine presumptive tests in numerous places on both sides of the socks focusing on sock B, which is the only sock that we're interested in showing to the jury at this point. Mr. Sims tested four areas on the opposite side of the sock that's shown on 117 where he--he did orthotolidine and did not sample and do further testing. I just say that for background. So there's four presumptive positive areas on the flip side of the picture that you see on page 117. That's not what we want to show the jury, your Honor, but that's background information. On the side that's shown on page 117, there are three areas where Mr. Sims did the presumptive positive tests, orthotolidine, and no typing was done. We only want the jury to focus on the stain that you see below 42B1. Mr. Sims represents to me that that's approximately one centimeter away from the stain that was typed. Now, I know what Mr. Scheck is going to say and I know what you're thinking about this, your Honor. But rather than debate--
The previous ruling. Well, this is--this is a--this could be a different stain or this might not be blood. And by the Court's earlier ruling, you put us in this catch 22; that the only time that we could use a presumptive positive test result is when we have then gone on and tested that precise sample to do further confirmatory testing. The only problem with that is, while that may be safe, that's the time that we could care less about a presumptive positive test because all of these tests that we do are human specific. So we prove by the actual testing or typing results that this is human blood. I think the Court needs to view this circumstantially and say, is there--is there some confidence that this sock, which has seven as yet untested areas that all give positive presumptive results, that also has three other areas that have been tested and proven to be consistent with persons involved in this case, is it--is there any reason to exclude this presumptive test, because we want the jury to see that spot where he did the orthotolidine because you can see it, you can see it today. They couldn't see it yesterday, but it's here. And you can--they can see all the other spots too.
In other words, you're saying that once we isolate that location, you're going to have Mr. Sims testify that he did a presumptive test, got a positive and that if you look at that same exact spot under the stereomicroscope, that you'll see reddish crystalline objects consistent with being blood. Is that what you're saying?
I don't mean to put words in his mouth, but words to that effect, your Honor, yes, that's it.
My--I don't know quite how to respond to this for a few reasons. And my suggestion is, is that if Mr. Harmon wants to put on this testimony and essentially talk about new examinations and test results with respect to the sock, the phenolphthalein and the new observations by Mr. Sims that are not recorded in his notes, I don't know under the circumstances whether we would object on the usual grounds, that it's just a presumptive test. I don't know. And the reason I don't know is that Dr. Lee has examined these socks, as the Court knows, and I would want an opportunity to consult with him about what this means in the context of these socks certainly before this cross-examination about what would be new matter. And I'm not even sure that I would necessarily object to the presumptive test. I don't know until I consult with him in the overall scheme of things with respect to the sock. But it seems to me that this goes way beyond anything I discussed in cross-examination. It goes into the whole area of presumptive testing. And I--I would take it that Mr. Englert is going to testify in this case for the Prosecution, a crime scene reconstruction person who is going to be discussing the sock and the rest of it, and all this information goes to that. So I'm in no position to evaluate it now, and it seems to me that it's inappropriate all of a sudden on the redirect examination to bring all this new matter in, new observations, new test results, some of which are presumptive tests, really are presumptive tests which the Court has previously made a ruling on. I can't even assess it much less cross-examine on it. So it would be my position that he should call him at another time if he wants to introduce this, and in fact, I could even make it easier because if I get an understanding--and it's a little unclear to me exactly what it is, but if we can get an understanding as what it is he's observed, where he's observed it, what his test results are and I can consult with my experts, I may not have that presumptive--I'm not saying that's going to be the case, but I may not. So I can't assess this, and it's unfair to raise this now on redirect. I really can't assess it.
Sure we do. Can I just respond? There's nothing new. These are observations that he's made--he examined these socks with a stereomicroscope before. When you look at it again, I guess you could call it new, but you're looking at the old thing anew. And while he's not prepared, that sounds like a sad reflection on the fact that they don't want this to come out. And I don't blame them for not wanting it to come out, your Honor, but it's either within the scope or it's not. And if it's not, Mr. Sims will be happy to stay here and recall him as soon as he leaves the seat. And that's not going to--that's not going to preclude us from the reality in those socks being shown to the jury for the first time. It shouldn't be allowed, your Honor, and his lack of preparation, while that may be a sad commentary, I don't think it's a sincere commentary, your Honor.
Counsel, I don't think you should comment on the lack of preparation about any counsel involved here.
Well, that's assuming that some of this testing is new. Mr. Sims, would you set up the microscope so I can look at this sock and see what's there.
Your Honor, while you are here, there's another stain we might want to take a look at. Mr. Sims informs me there is yet another stain where actual testing was done on this same sock that he'd be happy to show everybody to provide an alternative where both the orthotolidine and PCR testing were done.
Yes, your Honor. I propose it's the same presumptive test that was done elsewhere. It's confirmed in numerous other areas. I'd like the jury to see both of them. I realize how subtle they are, but that's either on his redirect or direct examination part two. And I haven't heard a legal objection. I--Mr. Scheck and I discussed, and he was not aware that--these are not new tests. Nothing new has been done. This is all old stuff that's in the lab notes that were turned over in the first report I believe in January. So--
The lab note that you have that you've shown to the Court has a date of November `94.
My confusion only was that there was mention of--with Mr. Yamauchi of other new tests being done in unnamed areas with Mr. Matheson and/or Mr. Sims. I don't know how that relates to any of this and maybe they can inform us.
But the thing that is of interest at this point is what is being offered is something that is historic rather than new.
Well, if it--then there are two--then there are these issues. Number one, should phenolphthalein results, presumptive or o-tolidine results, presumptive tests be permissible with respect to the testimony concerning those areas. That would be issue--one issue. Another issue has to do with, how are we going to preserve what we all just saw, which if we all had to describe what we just saw, I think that there might be some significant differences. Mr. Harmon concedes it's subtle.
I might add, Dr. Lee took pictures of these socks. So--we've never seen them. I saw him do that.
Uh, through a microscope. I stand corrected. Yes. The device that's on that photo board, Dr. Lee took photos of the socks.
All right. Well, the issue Mr. Scheck raises is a good one. How do we preserve this?
I don't make that as a facetious question. Since the jury is going to look at this, is there a way that we can preserve what the jury is being shown, assuming I let you do this? I was just asking--I assume that you know whether or not we can attach a photo adapter to this microscope.
I know one can, and that really is one of my points. That before we go through this, at some point in time, if we go through it, that there certainly should be some way to preserve the record because--particularly since other people from our side would then want to observe what this looked like at this point in time with these socks after all the subsequent handling and testing that have gone on since, in particular, Dr. Lee looked at them in February. So that's my point. We have a serious issue here of making a record.
And there's--there is the presumptive point. And frankly, my cross-examination of Mr. Sims on these point--on the sock examination was limited to what he could see with his naked eye, and I believe his testimony was that every stain he cut out for testing, he could see with his naked eye. And those were the points I made with him and that was it. So I think that this is again--
Your Honor, could I just--on this photography stuff, I don't remember us taking pictures of the glove when it came out. I don't remember us taking pictures of the knit cap. I'm not sure that's a legal--
No. Counsel--counsel, the problem is, that's real evidence that the jury gets to look at, correct? But this is something that they will not be able to look at in the jury room in this form.
Not easily. I think it would be interesting, were I the finder of fact, to be able to preserve what it is that I see there. Now, what I see there is an ultra-fine weave, appears to be a synthetic material because of its shininess, obviously not cotton. There appeared to be these little reddish spherical items interspersed within these small weavings and they appeared to be dispersed over an area to the top of what I saw there, not in the center. It would be nice if we could preserve it. I just ask, can we do that. That's not a condition.
That's what we're doing right now, your Honor. We're checking. At a minimum, what we could do at this moment--
But I have to say, since we found out that LAPD doesn't have video cameras, they may not have photo adapters.
Might I suggest at a minimum, your Honor, to save time, is that, what we could do is take a photograph of the position of the sock under the microscope to preserve the positioning so that it could be repositioned again when we have the photo adapter and then take the photograph that would preserve the view so that we wouldn't waste any time.
All right. The other issue is whether or not I should allow testimony regarding the presumptive testing on the sock. All right. Two issues. Can the Prosecution present a view of the sock to the jury at this time on redirect examination of Mr. Sims. Clearly, the issue presented to the jury, one of the issues is whether or not blood could be seen on the sock at the time that it was examined. First of all, at the time that it was picked up on June the 13th. Also at the time that Mr. Matheson, Mr. Yamauchi and Miss Kestler did their inventory on June 29th, the issue then being how the blood may or may not have been deposited on that sock. So clearly the issue is before the jury. What you can and can't see on a dark colored sock is clearly an issue before the jury. So this testimony has been gone into--excuse me--this questioning has been gone into by both sides with Mr. Sims. So I find it an appropriate questioning within the scope of the redirect examination. So I'll allow the microscopic examination. Next question is whether or not the Court should allow the results of presumptive testing with regards to the sock. I don't think that that lends anything to the finder of fact here because the issue is, can you see blood on it, not whether or not the presumptive testing was done. So what I'll allow is the exhibition of both spots on the sock that you've just shown to the Court and we'll forego any testimony regarding presumptive testing at this time. All right. That's the Court's ruling.
Your Honor, I believe on the second area that we showed, we have complied with the Court's earlier ruling.
All right. If the second area is a place that was tested presumptively and then tested with a confirmation test, which the PCR test I assume is, then I'll allow that. That's the Court's ruling that I made two months ago. All right.
Your Honor, but my concern remains about, I would insist frankly since I know it's possible--whether they have the equipment or not is another issue. I would insist that we have a contemporaneous record through a photograph of exactly through this enhanced view what everybody saw and when they saw it. And that's particularly important if Defense experts are going to get on the stand and comment. And what the jury has already seen, how can they do it without a record particularly if the socks had been put back in the bag and handled again. Without question, the--those areas will change.
Mr. Matheson, Miss Kestler aren't available at the moment and Mr. Yamauchi--they're trying to contact Mr. Yamauchi and ask him.
Your Honor, I just contribute that these stains are still here in spite of Dr. Lee rolling them inside out. That was pretty rough treatment he gave back in February.
KEY QUOTE--so that their experts can take a look at it. If it's possible, I would like to do that.
All right. It's not necessary. Mr. Fairtlough, let's see if you can--how close a fine view through the viewer you can get.
Your Honor, there are--if this is of any assistance, there are devices which attach to these microscopes.
I know. I have one at home. If I had known, I would have brought it with me.
KEY QUOTEAnd if it helps--it was my recollection that we had asked at one point whether they had such devices available at the LAPD. In fact, I think the Court recalls this discussion, and I--
I recall we had this discussion because some--Dr. Lee or somebody had to rent a microscope.
So my recollection is that--and don't hold me to it--is that we may be in a futile search at LAPD to get the device that's necessary to create this documentation.
Well, what we may have to do is draw a pencil outline of that sock and the way it is and I'll have to have the bailiff sit here all night and guard the sock until we get a microscope. Mr. Fairtlough, any chance that will focus through the eyepiece?
Your Honor, what we could do also, we do have an expert here. And if he is the one who positions the socks, he can make notes as to where he positioned it and then have--
Oh, I understand that. I understand that. But I'm just trying to do this as easily as possible. But my proposal is we go forward. Mr. Sims was able to locate these places on the basis of his notes. So I feel confident in his ability to do that. My concern is the concern that Mr. Scheck raises because obviously these are things that can eventually break off or powder off, and I'd just like to get it as close to what we have now that the jury is going to see. Does that make sense?
So I guess they're working on it now, your Honor. But I do have confidence actually that if they survived--that if this particular stain survived this long, it's not going anywhere.
Well, I'm glad you're confident about that, but I'm just a little more cautious. If we can get it photographed this afternoon, that's what I would like to do.
Your Honor, Mr. Sims informs me if we wait a few minutes, he believes he has a microphotograph of that b2 stain before the sampling was done, and we're trying to locate that right now.
If that's what they have, then that's what they ought to use because that's the best evidence.
No. I think maybe the jury can see it. I'm just concerned and compare--if we can prepare the photograph with what we can see here. But my inclination right now--Mr. Harmon, which one of these stains do you want to proceed with? Because what we'll have to do is have the jury cycle through, and I'm going to encourage them to take as much time as they want. So pick the one you want to show first.
How is this going to work? So he'll position the microscope, all right. The jury will come down, they'll take a look. We'll then put a guard here. How am I going to--
No. I'm being facetious, counsel. I'm sure we can find a photo adapter for a microscope between now and 5:00 o'clock.
Well, that--that--but no. That--then let me go on. This will end at some point and I'll be able to get up and ask Mr. Sims some questions. We're going to have to leave it there like that.
No. I think Mr. Sims was able to locate the first sock--excuse me--the first spot on the sock by referring to his notes and other landmarks that are on the sock. I mean, there is a regular pattern to the sock and there's regular decorative interweavings in the sock. He can locate those items and refocus for us. And we won't roll them up. We'll just fold them and put them back into the bag today, and Mrs. Robertson will keep custody of them if we can't accomplish that by 5:00 today.
The objection is silly and it really exalts form over substance because at the sidebar, I commented--not facetiously--that that's fine. If we're going to exalt form over substance, then I won't do it on redirect, and he'll just stay here whenever Barry's done the cross-examination, and I'll recall him on it.
There appeared to be these little reddish spherical items interspersed within these small weavings and they appeared to be dispersed over an area to the top of what I saw there, not in the center.
I have one at home. If I had known, I would have brought it with me.
I just contribute that these stains are still here in spite of Dr. Lee rolling them inside out. That was pretty rough treatment he gave back in February.
What I'll allow is the exhibition of both spots on the sock that you've just shown to the Court and we'll forego any testimony regarding presumptive testing at this time.