All right. Back on the record. Parity and sanctions. I'll hear from Mr. Scheck first. Good afternoon, counsel.

Good afternoon, your Honor. Your Honor, the most precious commodity an advocate has is credibility. Before I walked into this courtroom, you and I didn't know each other, although we passed through the same halls of a law school in northern California, but neither of us even remembered meeting each other. When I walked into this courtroom many months ago, a lot of things were said about--from the Prosecution's side to, quote, inoculate you as to how I would conduct myself as a professional and how Mr. Neufeld would conduct himself as a professional. And during the course of these many months, as any advocate, I have to build up credibility with you. I have to be accurate in what I say. I have to comport myself in a manner that is in accordance with the rules of the Court. I have to make representations to you factually again and again that are accurate for you to have any trust in me, a person you've never seen, have no experience before, never worked with before. The same is true--and I know the Court realizes this as a trial lawyer--with the jury. When one gets up and conducts a cross-examination, the facts ought to be there. One has to be very careful in the representations one makes and the points one makes. Advocacy should be vigorous, but it has to be fair. I think the term applies to Prosecutors in United States versus Berger, words I'm sure the Court's familiar with. You have to strike--you can strike hard blows, but they've got to be fair ones. And I think the same applies to advocates on both sides of the aisle. So it's of great concern to any advocate to finish cross-examination that's been carefully planned, when details have been gone over with with the Court, when one is relying on Court orders, one is relying upon compliance with those Court orders by the Scientific Investigation Division laboratory by the Prosecutors, bases in all fairness certain lines of questions on those representations in compliance with this Court's order. I think I'm entitled to rely on them doing their job diligently and making fair and honest representations. It's not too much to ask. I was set up. There were--the record is now clear that, first, when the discovery application was made for the production of original documents, mistakes were made by personnel in SID in turning over--according to them. I mean, let's just assume page 4 was the original. According to them, they made a mistake and did not turn over the original. I don't think there's any question now in terms of the record that they were very concerned about why we would be looking at these documents and what our concerns would be. And I think it's fair to say that they also knew we were very concerned about Mr. Simpson's blood vial.

Well, Mr. Scheck, let's sort of cut to the chase.

Yeah.

We know that the Court made the production order.

Yes.

We know that during the course of the testimony of Mr. Fung, that that page 4 appeared, that that appearance was known to the Prosecution prior to the conclusion of your cross-examination of Mr. Fung and that a decision was made--it was discussed and a decision was made not to reveal that prior to the redirect examination.

Missing one step. If I could bring the Court's--

What one step am I missing?

All right. Between the time that I finished cross-examination and during the production of documents, the record is clear that Mr. Hodgman notified Mr. Neufeld and myself that in the documents that they had turned over to us, one of the documents was not an original. That was the page that's been designated l-16/32. And I outline this with citations to the transcript in my letter. That came up in the cross-examination and in fact in the direct examination. It then became clear that before we proceeded down that last fatal line of cross-examination, that the Prosecution, through Mr. Fung and Mr. Matheson, went into Mr. Fung's notebook and came out with the original l-16/32. And the reason that's significant, your Honor, is, it put them on notice that their original productions might have been inadequate. And also--and I find this very troubling. I'm sure the Court noticed it--Mr. Goldberg in all his arguments, that I made some kind of tactical choice not to come forward and point out a mistake to them, misstated the facts to the Court on the record saying that we were the ones that brought to the Prosecution's attention that we had not received an original. Therefore, we should have done it again with page 4 when exactly the opposite occurred. They brought Mr. Hodgman down to this courtroom when this issue was in dispute and Mr. Hodgman said that we were correct. They then filed this parity motion with the Court and repeat the same inaccurate representation as to the chain of events--it's astonishing--and make the same argument--

Well, Mr. Scheck, I'm just--

No. The reason I focus on that--

No. I'm just trying to cut to the chase.

No, no.

Counsel, I sat through all of this.

I understand. And I know you know the record. The only reason I'm pointing this out and emphasizing it is that one of the problems I had with the proposed charge of the Court is that it's my position that they had further notice and this is not--Court referred to it as inadvertence and I think mistake in the first instance is a fair statement. Sid make a mistake in turning over the documents, if you want to be charitable. They simply failed to turn over the right documents according to them. Then they're put on notice that where the mistake might have come from and they didn't do anything about it. So I think there's another degree of certainly negligence or in terms of not being properly diligent in searching their files. And that's a factor to be considered in terms of what transpired subsequently to that. Now, I think the Court was going to--that's the only reason I stopped the Court. Now I think you want to cut to the chase and ask me another question about what, prejudice?

No. I understand your argument about the need for trial counsel to maintain their credibility before the trier of fact. I understand that. I accept that argument as being a valid argument. The next question is, you have submitted to the Court a proposed admonition to the jury. I indicated to you that I would probably give 85 percent of that, but I was uncertain about the last sentence to be taken into consideration as to credibility of that particular witness.

Well, I think now that what's clear is that subsequent to the active intentional misconduct, the Prosecution then tried to exploit that on the redirect examination by asking Mr. Fung questions that indicated that they had fully complied with their discovery obligations, that they didn't throw away documents or tear them up, et cetera.

But, Mr. Scheck, I sat through all of that.

I know. And you also indicated when I objected to it and asked for the admonition at that point again that it was overreaching and it was improper vouching and they were trying to exploit the mistake. My problem is, your Honor, this happened so long ago and then they then tried to exploit it and then continued with the misrepresentations. My problem is this. Unless you're willing to say something strong, it's not worth doing at all.

Miss Lewis.

Thank you, your Honor. Good morning.

Good afternoon.

Good afternoon it is. Your Honor, let's look at some of the pertinent facts that haven't been highlighted. Initially, Mr. Scheck apparently was at SID and examined the originals--and I'm told there is some 80 to 100 documents that we're talking about--examined those documents, felt at that time we now know that there was a problem with the original not being present on page 4. Now, in that time, did he do what the Defense has done consistently throughout this case not only with the DNA labeled materials, but with any other type of material? Did he send us a letter? Did he call Mr. Hodgman? Did he do anything like that and say--did he even ask Mr. Goldberg there when Mr. Goldberg was present, "Do you know where the original page 4 is? It looks like it's missing"? No, he didn't do that. And that was back in March. What he chose to do was to ask for all of these documents so that they could have a questioned documents examiner analyze them. We had no idea why they would want to do something like that. So we said, "We think you ought to go to the Court with that request," even though we have been complying with many, many requests of theirs that really go beyond the bounds of discovery. So they did. They went to the Court and what Mr. Scheck revealed to us during the last argument is that he made an in camera, ex parte appropriately offer of proof to the Court apparently about this original of page 4. So apparently that is one reason why the Court ordered the production of those originals from us to the Defense for their inspection. All of this was unbeknownst to the Prosecution. All we knew is that we were ordered to produce the originals, which comprised some 80 to a hundred documents. We complied with the Court's order to the best of our knowledge. The Court already I believe made a finding that it was inadvertent that we had not turned over the original at that point in time. But what the Defense apparently decided to do after their questioned documents examiner apparently verified that wasn't an original page 4--and by the way, let's recall, this is a blank piece of paper we're talking about, a blank form which has just the typewriting, but nothing filled in. Once their questioned examiner--questioned document examiner apparently verified that wasn't an original, they, instead of, again, once again, asking us, as they have many times throughout this case on all sorts of discovery throughout this case, instead of asking us, "Do you know where the original is of page 4," according to Mr. Scheck--and apparently, he just corroborated what it seems like now, they planned--he planned his entire cross-examination with culminating on this big finish of accusing Mr. Fung of being involved in a conspiracy by trying to cover up the timing with regard to the transfer of blood from Mr. Vannatter--Detective Vannatter to Mr. Fung. So what counsel did was to make a deliberate, tactical choice and maneuver to try and utilize this, to exploit this nothing as it turned out to the benefit of the Defense in making it appear like there was something there, like there was some part of a conspiracy there. None of this was known to the Prosecution of course. Now, we reached a point in time during the almost tail end of Mr. Scheck's--Mr. Scheck's cross-examination of Dennis Fung, and that's when he elected to come up with the accusations with regard to the missing original page 4, and it became clear to the D.A.'s at that time that he knew he didn't have the page 4, original page 4, and that's the first time that any of us knew that there wasn't an original page 4 examined by the Defense. Now, one thing the Court has stated which causes me concern--and I believe the record is clear, but I want the Court to be clear in the Court's mind--is that when Mr. Scheck had indeed finished his cross-examination of the witness, of Mr. Fung before we took a break, and it was during that recess that the attorneys involved sought to find out if indeed they could locate the original page 4. And, your Honor, what Mr. Scheck said at transcript page 22776 is, "Your Honor, I would like to do two more things, and I'm finished questioning this witness. What I would like to do is first have printed out on the elmo a copy of the document with the eraser," different document, "and then," in other words, a second thing, "I would ask that each of these documents be handed to the jury so that they can examine them." both of those items were done. The document was collected back from the jury. And reporter's transcript--unfortunately I have 2278 which has to be a page short, but within a few pages right after that, he said, "I have no further questions." and at that point in time, the Court took a recess. And so the record is clear, that he had rested indeed before the recess. And at that point in time, the Prosecutors looked to see if they could find where the original page 4 was, and they found it. Now, it was clear from the questioning that Mr. Scheck made of Mr. Fung that that was a tactical decision on their part to handle it in that manner. Their remedy--now, this was, your Honor, a discovery order that the Court made. The remedy for discovery violation--well, the common sense thing which has been done throughout this case by the Defense is to come to us and say, "Hey, we didn't get x discovery," you know, in an informal basis. They could have done that and they never did that at any point in time. The next thing they should have done would be to go to the Court and say, "We want a sanction of some kind. We want a hearing on this missing original page 4. We want a hearing to determine if there's any impropriety on the D.A.'s part with regard to this original page 4." that was their remedy under the Court's discovery order. Did they do that? No. They elected instead to use it in a technical--tactical rather maneuver to confront--seek to confront the witness with its absence. So what they did and what's critical here and what I don't believe we articulated last time we visited this issue, but what is critical, your Honor, is that when the Defense made that decision, they waived enforcement of the Court's discovery order. They waived its enforcement by pursuing the course that they did rather than demanding an explanation or demanding an inquiry.

Do you know of any case authority that would characterize that situation or anything similar as a waiver?

I don't have a case, your Honor. The black--we've cited in our brief the definition of waiver from black's law dictionary which really applies. I would like to read it into the record. "A waiver is defined as the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right or when one dispenses with a performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with a right or his intention to rely upon it." particularly that latter sentence, your Honor, the--it's a lengthy definition, but the latter portion of it, "When one in possession of any right, whether conferred by law or contract, with full knowledge of the material facts," which they had full knowledge of the material fact, "does or forbears to do something," and they forbore to do, they forwent pursuing the appropriate remedy, which would be a discovery sanction and an inquiry of the Court and the Court making inquiry of the Prosecution to see if this was an intentional violation which warranted sanctions, they forwent doing that. And that's what this says. "they do or forbear to do something, the doing of which or the failure or--or forbearance to do which is inconsistent with a right or intention to rely upon it." so their actions were indeed inconsistent with that right they had to that remedy under the discovery laws. And that was clear to us during the--the consultation which went on during the brief 15-minute recess. It was clear to us, it was clear to the D.A.'s involved that they had elected not to pursue that avenue. They had indeed confronted the witness with it. Now, your Honor, the--so, your Honor, the black's law dictionary defining "waiver" is directly on point here. Now, I do want to make the point that the Defense has apparently on more than one occasion attempted to make a mountain out of a molehill. And, Judge, frankly this wasn't even a molehill. This was a blank page as the Court has noted. There was nothing here. And it shows frankly how desperate the Defense has been in some areas in coming up with a Defense in this case and it's demonstrated also by their shotgun Defense, but I mean, this is just one example of where they have tried to make something out of really hole cloth. And instead of pursuing the honest, the normal, the truth-seeking appropriate remedies under the discovery law, which the discovery laws encourage from both sides, they decide to try and use it as a tactical maneuver. And when they did that, it backfired and it blew up in their face and they created their own problem by having done that. Now, I do want to make a point. When the Prosecution, when Mr. Goldberg who was brought into the case after the search and seizure had been litigated, when he inadvertently referred to the airline ticket and the baggage ticket, which was evidence which was only favorable to the Defense frankly because it showed indeed that Mr. Simpson had a pre-planned trip to Chicago, where he had apparently been, when they made a big deal of that--they made a big deal of it twice. And in the second instance--and in fact, Mr. Goldberg I believe was admonished once. I don't recall exactly what happened with the second time. But again, they made a big deal of that. And what did they end up doing? They ended up withdrawing their objection to 15 and 16. And initially when they tried to do that--I think Mr. Scheck was the first to try and do that, and it appeared to me that Mr. Cochran didn't want to give that up as a possible avenue on appeal or something, whatever, to make more of. But they utilized that the most they could to try and dig a knife into Mr. Goldberg when he had really done--he had violated the Court's previous order, which he was unaware. And it's too bad that it happens. I know he regrets that it happened. But it was certainly not--pardon?

And he was humiliated. He was indeed humiliated by the Court and degraded because of that inadvertent good faith error that he made. So the Defense now is seeking to capitalize on the Court--you know, as the Court knows, we as Prosecutors are held to a very high standard, and we're often held to a higher standard and--

Right. And just to finish the point with regard to the airlines ticket, the airline ticket and the baggage ticket, they made it--I think I just made this point, but they made a big point about these documents and then later stipulated that they were admissible. So clearly, you know, where was the good faith in seeking to have Mr. Goldberg humiliated and sanctioned in front of the jury with regard to that. That just shows that that was game playing. Now, the point I was trying to make, as we know as Prosecutors, that we are obliged to the highest standard under the law and we do the best we can to fulfill our ethical obligations. We're also servants of the People of the State of California and we're beholden to those people to be as vigorous advocates in favor of the truth and having the truth come out as we are allowed under the law and under our ethical obligations to be. And we have done that in this case and we have consistently tried to uphold that integrity of the oath of our offices as Prosecutors. And to have the Defense turn around and try and blame our side of the table for something that their own tactical error caused them to be embarrassed by is just incomprehensible. It's not fair, your Honor, it's not fair to the Prosecution and we should not be sanctioned. It's just not warranted. The one aspect that the Court had expressed concern about I believe is satisfied by the objective indication that the Defense had indeed waived their right to rely on the Court's discovery order. That is the only--the only hole one might have, you know, considered in the previous argument that we made in this regard. But we do not deserve to be sanctioned, your Honor. We had a limited period of time to make a very strong decision. And I believe our decision was a correct one. Though I did not happen to participate, I believe I would have made the same decision because it was clear the Defense had waived any other kind of enforcement when they decided to--when Mr. Scheck decided to make--try and make a big deal of this in front of Mr. Fung.

They waived it because they waived inquiry. They waived inquiry. Now, you know--

But they're not entitled to rely upon your representation--and when I say generically "your representation," I mean the Prosecution.

I understand.

That's--"these are the documents, here they are." they can't rely upon your integrity or the Prosecution's integrity that this is in fact a complete set of documents.

I don't think they're--I don't think it was reasonable reliance.

Okay.

Your Honor?

We need to wrap this up.

Your Honor, the--they were entitled to seek to ascertain the truth and they were entitled to the Court's order which the Court was convinced it should give with regard to these documents. It--considering the--I'm told we're up to 28,000 items of evidence pages and including altogether 28,000 items of evidence we have turned over to the Defense. They have not hesitated to bring it to our attention previously when they've been aware or when it's become apparent to them that there was some mix up of some--in some manner, that they didn't get something that they wanted. And in this instance when--I don't know if it was Mr. Hodgman or Mr. Yochelson--whomever discovered that we had inadvertently failed to turn over one particular original, that showed our good faith. If we knew, we would have done it. But no, I don't think in this situation--they don't come to this with clean hands, your Honor. The equities are not in favor of the Defense on this, not when we've had a past history of dealing with them repeatedly throughout the 11 months that we've been in this--10 months, 11 months we've been in this case now. Repeatedly dealt with them on an informal basis. So if there's anything they didn't want--Mr. Hodgman has sat I know, your Honor, in chambers with the lawyers with regard to all this DNA stuff on countless occasions trying to all--comply with all of this informally and trying not to have to burden the Court with too many discovery matters. The Court has heard a lot of them, but there's been a lot done informally that we've not had to burden the Court with. So to make an issue, make a mountain out of something that doesn't even come to a molehill, it's not even a grain of sand or a piece of--a little tiny piece of dirt in this instance is really unfair and it's unfair to the Prosecution, your Honor.

All right. I think we've used our allotted time.

Can I just have one moment, your Honor?

One moment.

Your Honor, we--I just do want to make the final point. And we do have in our papers that the Prosecution has been sanctioned numerous times in this case and, you know, the Court made those determinations, but we have been sanctioned numerous times. We've just this morning heard of a--through an offer of proof from Mr. Blasier with regard to what an expert has told them, something that we've had no discovery of. So we're still on this. And I also want to draw the Court's attention briefly to the beta tapes. There was a day when Mr. Scheck said, "We have no beta tapes, period."

Well, counsel, that's really apples and oranges. I don't evaluate all of these things as a running continuum necessarily. This is a specific order and a specific incident. So let's confine our comment to that. And, counsel, you've exceeded the amount of time. All right.

All right. Thank you, your Honor.

Thank you, counsel. Mr. Scheck, any response that you find necessary?

Just briefly to the substance, and I won't take the bait of--I don't know why they always have to say something about my honesty every time this issue comes up when they get the facts wrong. It's--in any event, my concern is that when they came back and said, "This l-16/32 we found in Mr. Fung's notebook," middle of cross, when even an issue was made where is the original of that document, it's undated, they were on notice that they might not have produced originals from his notebook. And it appears from the testimony very clear that the process of fielding the originals and to the extent we can even be sure these are still originals comes from SID, from Mr. Fung, Mr. Matheson, through the Prosecutors. Then there are all these questions on redirect examination trying to bolster the--and vouch for the way in which Mr. Fung and Mr.--Mr. Fung in SID, how honest they are, how the documents themselves can be trusted, that they don't throw anything away, that they don't tamper with them in any way. And one point I think is worth noting. They keep on saying it's a blank page, and, therefore, it had no evidentiary significance. That was the point, that it was a blank page. That frankly is still the point. And we still have in those documents this whole line of proof--I know they don't like it--that there was some manipulation of Mr. Simpson's blood vial, that it was mislabeled, it was item 18, indicating it was received after the sneakers. This is still a contested issue in this trial as to the amount of blood in the vial. It's going to be a contested issue all the way to the end. So I think that this is a significant point as to the credibility of the witness, and I don't think there's any issue that they not only intentionally did not comply with the order; they didn't give us a chance to deal with it as an advocate can. They tried to attack not only our credibility of advocates, but most importantly, they tried to vouch for the credibility of the way they handle discovery and credibility of the witness on this issue of some--of real importance to the case. So those are the elements that it seems to me we're--I think that they have compounded since this issue first arose and that the Court really should take care of in the order. It's clear they vio--they misled us. They were on notice of the source of their mistake. They didn't take any action to change that, if indeed it is the original. They exploited it intentionally. They then on redirect examination vouched for the credibility of the witness. So I think that we're entitled to the elements that I think we're missing from the Court's charge about the vio--their violation of the law in the first instance, their intentional misconduct in the second instance, their misleading us, whether it's by mistake at first and negligence certainly at least second, and finally that their efforts--their intentional misconduct was in the way they conducted the redirect to try to vouch, I think we're entitled to that element of the charge that the jury may consider the failure and the intentional failure to bring this to the Defense's attention on the credibility of the witness, because it was the--it did reflect on the witness and it was something that they were vouching for in terms of the proper handling of the documents in discovery. So I think we're entitled to all those elements. And again, I urge the Court, they delayed this by every means possible. So now we're really at a point that again, if the Court is not going to give a strong charge on this, it's not worth doing it. It's more of a problem for us than it's worth.

All right. Thank you, counsel. All right. I'm going to review some of the commentary in the transcript before I issue the ruling on this. And at that point, after I issue a ruling, I'll give the--both parties an opportunity to look at that before I go forward. All right. Also, I would like counsel to consult in the meantime about what peeked my interest earlier today, the comment about--by Mr. Blasier about in the offer of proof regarding EDTA testing, whether or not there's a discovery issue there. That should be handled informally first. If I need to take it up, we'll do that on Monday. All right.