Thank you, your Honor. As you know, yesterday, we had a status conference on discovery, and you were I know occupied writing your decision, and as a consequence, were unable to join us and asked us to put some of the results of that conference in a letter. We have a number of issues that we believe the court must take up. The first--many of them dealing with the rebuttal case and discovery of the Prosecution's rebuttal case. But before I get to that, we would like to call to the court's attention an extremely significant point. As the court probably recalls, the Defense has been requesting for several months in this case, really from the beginning, contact sheets of the crime scene photographs. We have never had a photo log in this case and we never had contact sheets indicating the order in which pictures were taken. Yesterday, we saw for the first time big beautiful color contact sheets of crime scene photographs. We saw those because Mr. Bodziak of the FBI had requested negatives and prepared contact sheets apparently in anticipation of assisting the Prosecution in the cross-examination of Dr. Lee and calling Mr. Bodziak as a rebuttal witness in this case. Examination of those contact sheets reveal that the picture of Mark Fuhrman pointing to the glove at Bundy appears to have been taken at night because the pictures to our eyes at this point prior to and subsequent to the Fuhrman picture, pointing at the glove, revealed that to be taken at night. Now, this has very serious implications. The Prosecution turned over a long time ago a statement of a photographer named Rolf Rokahr who initially told investigators, Detective Luper, that he had arrived at the Bundy scene sometime after midnight, had waited for the arrival of Detective Phillips and Fuhrman. When they arrived, he was then directed by them to go take individual pictures of evidence. Prior to their arrival, he had taken some overall shots. He then indicated in his statement--
Did he--I thought Mr. Rokahr testified. I know we've heard his name and seen his likeness on some of the--
--but his name did come up in the suppression hearings, and in fact, there was an indication by the Prosecution--they filed I think in a responsive brief to Mr. Uelmen's papers--that his initial statement as to the chain of events on the morning of June 13th was mistaken as to times and perhaps as to sequence, and they submitted an amended version of his testimony. The point is, is that he had given us this statement a long time ago indicating that the pictures of Fuhrman pointing to the glove would be consistent with having been taken at night. The crime scene log at Bundy indicates his arrival at 3:25. His initial statement says later. But even if he had arrived at 3:25 and took pictures at that time, that's still night. The sworn testimony of Detective Fuhrman in this case--
--is that that picture was taken after 7 o'clock in the morning. That is also essentially the testimony of Detective Phillips. It is consistent with the testimony of Detective Lange and Vannatter, indicating that they directed Fuhrman to go back and do this comparison of gloves and take a photograph.
Yes. We need to have that contact print because we think that that opens up a whole avenue that impeaches not only Detective Fuhrman's testimony, but it impeaches the other detectives as to their movements between crime scenes that evening. There are no notes about exactly how they proceeded and there are other contradictions, substantial contradictions.
All right. Mr. Scheck, does the contact sheet that you saw yesterday include frame numbers?
Yes, it did. What we arranged with Mr. Hodgman at the end of the day--Mr. Hodgman--and I'm sure he'll speak for himself, but he indicated to us at that conference, and I'm sure he'll confirm today, that he personally recalls Mr. Neufeld asking him several months ago for these contact sheets, had determined they didn't exist. And I know that we asked for them previously.
And these contact sheets. Right now, it's my understanding that we have made arrangements, and at this moment, Mr. Neufeld is at a laboratory with the representative of the District Attorney's office attempting to have high quality reproductions made of these contact sheets. Also, I should add--
So we are very, very concerned about that. In addition, as the court noted when Dr. Lee testified--
Well, let me ask another question, see if we can just cut to the chase at this point. When will they be available to the Defense, Mr. Hodgman?
Well, your Honor, they're being made available to the court or--excuse me--to the Defense right now. We made arrangements with the Defense yesterday. We obtained the negatives. We have an investigator. We agreed to a non-machine reproduction or development of these photos. We have an investigator there just to make sure we don't lose our negatives. But it's being taken care of right now. These contact sheets, which simply show an order--photos which the Defense has had for months and months, were recently acquired by us. I don't know precisely when. I would estimate, but I'll have to let Mr. Goldberg address this.
All right. So don't we need to see these contact sheets, have Mr. Scheck evaluate them and then take the matter up at that point to see what the significance is?
I think that would be appropriate, your Honor. But the point is, your Honor, discovery is being made. We made the arrangements yesterday. And I'm sure Mr. Scheck has more he'd like to address the court about. So we'll handle it item by item.
But the major point here is that we've been asking these for a long time and they told us they didn't exist and they couldn't be made. And now, just because Mr. Bodziak had them made in an effort to confront Dr. Lee's testimony, all of a sudden, we find something that we think is extremely significant on a crucial matter.
All right. Well, Mr. Scheck, why don't we do this. Let's assume that you get your copies of the contact sheets sometime later today. You'll have time to evaluate them.
And if you can--after evaluating them, there is some significance to you and to the Defense position, then we'll take that up at that time.
Yes. Your Honor, I should note in the Brady motion that we filed with the court today, we indicate the lines we are pursuing here because we think it has significance with respect to the decision you rendered. I should note also with respect to the--these photographs that the enlargements in the treated photographs that we saw yesterday--and we're endeavoring to have these copies made as well--we think provide, just from my untrained eye, looking at them--and that doesn't substitute, as the court has acknowledged, for Dr. Lee's trained eye, Dr. Lee's magical eye frankly. But looking at those photographs, I think that there may be some additional parallel line imprints in the walkway area that are consistent with our contention that we have footprints of two individuals involved in this homicide.
And we think that those pictures are potentially quite exculpatory as well and we should have seen them earlier. The next issue with respect to discovery is that Miss Clark had indicated that we were going to see all these photographs. And of course, they were slow in coming, but you had ordered forthwith it was our understanding.
Let's start with the gloves. We thought that you had ordered forthwith for production yesterday or--
--whatever forthwith means, the--what they had with respect to videotapes or blow-ups on the gloves and whatever they propose to introduce in their rebuttal case.
And we're not by any means conceding they have a right to do that. We haven't gotten that.
Your Honor, as I indicated to the court I believe it was Wednesday, there was an event concerning these photographs yesterday and basically we were having them reviewed by someone. We've had the benefit of that event having occurred. Accordingly, I've instructed our staff to prepare for submission either to the Defense or to the court under 1054.7, just to be overly cautious about it, the photos and videos that we would either potentially or actually seek to introduce in our rebuttal case. I was informed earlier this morning that we should have the package complete by noon. I should advise the court that--
Yes. And by being turned over, the bulk of it we'll give to the Defense. There will be perhaps one or two submissions to the court where we're still not quite sure. So--but out of an abundance of caution, we will turn it over to the court under 1054.7.
All right. Then what I'm going to do is direct that that package be made available to the Defense by noon today, that anything that you feel is not within the discovery statute, submit to the court by noon today for the court's review.
Your Honor, I appreciate that order, but I just want to note for the record that we have been--we were promised this earlier. And the reason that's of critical importance is, this case is drawing to an end. We anticipate resting in the middle of next week or Tuesday or Wednesday. And the problem is that we have to get these things out to experts, and we think that the Prosecution has been withholding all of this despite the court's orders because we can't--this is labor day weekend. When are People going to look at this? We don't want any further unnecessary delays in this case and we think that this has been an unfair course of conduct. In that regard, yesterday, they announced--
Mr. Scheck, I'm aware of the fact that when I made the direction that it be produced forthwith, nobody told me that those matters were out being examined by experts.
Excuse me. I will point out to the court, a portion of this material has already been turned over to the Defense as well.
Okay. Well, but, Mr. Hodgman, make your best effort--not make your best effort. Have it turned over by noon today.
For the first time yesterday, they indicated that Mr. Bodziak would be a rebuttal witness, but we have no reports or notes of Agent Bodziak with respect to that at all, although we did see these photographs that he apparently produced for purposes of cross-examining Dr. Lee. But--and wait until you see those. They have pictures of those jeans that are so much clearer than anything we had.
NASA quality. There is also the matter of Dr. Bradley Popovich. We were--disclosed to us were a set of notes, one from January 1994, another from March, rough notes, where there is no report from Dr. Popovich, but they told us yesterday that he would be testifying as a rebuttal witness.
KEY QUOTEPresumably on DNA. I happen to know he's a medical geneticist. What concerns me, your Honor, is that I am finding it very hard to understand how these rulings work. When Mr. Sims testified, I got his report at the last minute, then I got 80 pages of notes a day before he testified. I was told, well, that's the way it works. You get the report, then you get the notes when the witness testifies. So I did it. Last week, we went through this vitriolic discovery motion concerning Dr. Lee where I think the record now is clear with the submission by Mr. Blasier that they received so much more from Dr. Lee in terms of witnesses in a timely fashion and that were able to speak to him about his testimony, had their own experts speak to him at great length, that--
I just--I just--this must be a problem that we're just getting these notes from January and March and no report and discovery at this late date of this witness. Certainly if he's testifying to any great substance with respect to DNA, this could cause unfair delays.
Mr. Hodgman, as to Mr. Popovich and Mr. Bodziak, what is the status of reports as to both those individuals?
We turned over a recently acquired report, that I believe supportive notes from Mr. Popovich to the Defense yesterday here in court.
Well, his testimony is anticipated will be in rebuttal to Mr. Gerdes amongst other things. So it's being--the report was being prepared all along and it was just recently completed. We turned it over just about as soon as we got it. I think there may have been just one day for processing, renumbering, and I know it was in my in-box late Wednesday afternoon and we turned it over to the Defense yesterday morning.
All right. So the Defense is now in possession of Mr.--Dr. Popovich's notes and a report?
They have what we have. And I would have to admit--I mean it's--I've been working on quite a few other things as well. I haven't even reviewed this report ourself. You know, our science subteam has been dealing with that. So I can't even address the content of the report other than I know we just recently received it and we just turned it over yesterday morning.
As far as Mr. Bodziak goes, we do not have a report or notes as of yet. Mr. Bodziak will be testifying within some perimeters as yet completely defined, as yet completely undefined.
Oh, I fully anticipate Mr. Bodziak will prepare a report. We don't have it. So it's--again, his testimony will be in response to what Dr. Lee testified. And again, the scope of that testimony is as yet undefined because we don't even know the results or the opinions or the analysis of Mr. Bodziak at this time. You know, we're entering the labor day weekend, and indeed we will be laboring. There won't be time off for anyone. We're bringing this case to a close. When we get a report--and we will encourage Mr. Bodziak to get his report together as soon as possible--we'll give it to the Defense.
Well, I must say that Mr. Hodgman apparently is not in touch with these witnesses with his lawyers with respect to the science because there is no report from Dr. Popovich. There's none.
I have notes. That's all he gave me yesterday. If there's a report, Miss Clark, then why don't you turn it over?
It has been turned over. Mr. Scheck as usual is uninformed. I'm going to call my office, if I may have leave of the court, to bring it down again. But it has been turned over.
KEY QUOTEAll right. As to Bodziak, it's clear that Bodziak is a shoeprint person who's going to testify in response to Dr. Lee's testimony. Dr. Lee completed his testimony just a few days ago.
Well, they had Dr. Lee's report in July and it's perfectly apparent, and we'll see when Mr. Goldberg can be contacted because apparently he couldn't be contacted within the last two days, as to when these photographs and contact prints were first turned over to him.
If he's--if Bodziak is preparing all of this, then it seems to me that there's an awful good idea as to the substance of what, if anything, he's going to say and what he will say about whether imprints exist or not.
They should know. There should be something. And to say, "Well, it's vague and undefined. We have no idea what he's going to say and we can't make any offers and we can't tell you and we don't know what he's going to say, but all we can tell you, he's testifying," is the kind of stuff that guarantees that this trial is going to be unnecessarily extended and they're holding back.
They have said they still don't know whether Dr. De forest is going to be a witness or not and they still haven't turned over to us the photomicrographs that Dr. De forest took with respect to the sock.
All right. Mr. Hodgman, what about the photomicrographs of the sock by Dr. De forest?
Yes, your Honor. We indicated we were going to submit those to the count under 1054.7. I have a package prepared to the--for the court, and a cover letter was being attached to the package, and that will be submitted this morning.
And finally, they have told us nothing about whether or not they intend to call a witness on the EDTA issue. And it seems to me that whether they're going to call such a witness and if there's notes, experiments, data of some kind, it's something that should be known to the People at this late date and there's--you know, if they're going to dump all of this on us the day after we rest without even the labor day weekend to try to find experts to deal with all of this, which is exactly what's occurring here, it seems to me that that is intentional, it's intended to delay the trial, put us in an impossible position because the more you delay turning over this kind of discovery and that puts the Defense in the position of being the ones that are delaying this case from getting to the jury, and it seems to me that it's an unfair tactic.
No. Not as of yet. I mean, it's under consideration. I have nothing to report to the court. If the court under 1054.7 would like a private report of what's going on, I would be happy to submit that at the court's convenience. We may or may not call EDTA witnesses. That's still being determined.
All right. 2 o'clock. Madam Clerk, would you make sure we have a court reporter available 2 o'clock? Miss Moxham, you're available? All right. The 1054.7 on the photos of the gloves and the videotape, we'll do that at 2 o'clock as well. We'll just do all of these at 2 o'clock. All right. Mr. Uelmen.
Examination of those contact sheets reveal that the picture of Mark Fuhrman pointing to the glove at Bundy appears to have been taken at night because the pictures to our eyes at this point prior to and subsequent to the Fuhrman picture, pointing at the glove, revealed that to be taken at night.
We have never had a photo log in this case and we never had contact sheets indicating the order in which pictures were taken. Yesterday, we saw for the first time big beautiful color contact sheets of crime scene photographs.
It has been turned over. Mr. Scheck as usual is uninformed.
NASA quality.
If they're going to dump all of this on us the day after we rest without even the labor day weekend to try to find experts to deal with all of this... it seems to me that that is intentional, it's intended to delay the trial, put us in an impossible position.