All right. All right. Ladies and gentlemen, let me ask you to step back in the jury room. I need to preview something before we present the next witness.
All right. Thank you. All right. I take it, Miss Clark, the next offer from the People is the statement from Thano Peratis under 1202?
Before you see it, I think it would help the court if you knew in advance--because I got to see it a little while ago--what some of my concerns are so you can--when you're looking at the tape, you can see whether or not they're there. I think it helps you in deciding this thing rather quickly.
Okay. Thank you. Your Honor, the problem is that I don't believe that they followed your instructions of yesterday. No. 1, right off the bat, they start referring to a demonstration that he wants to show. Although he doesn't actually show most of the demonstration, he refers to or he's about to. No. 2, he then orally describes the experiment that he did not with Mr. Simpson's blood, but an experiment that he did sometime between the time he drew Mr. Simpson's blood and the time that this tape is made on July 27th. You said no reference to any experiments are to be included in this tape. It's simple impeachment on the issue of the 8 cc's. He goes through a description of the experiment he conducted in his own infirmary eight months after the incident to help convince him of the error of his ways, that his testimony at the grand jury and preliminary hearing were wrong. So they didn't follow your instructions with regard to that either. No. 3, on the tape, they referred to the 6.5 cc's results that he achieved when he completed his own experiment, again, referring to the very experiment that he's not allowed to refer to given your instructions yesterday. No. 4, there's still a ton of extraneous references on this tape which has absolutely nothing to do with the impeachment, again, contrary to your specific instruction yesterday. No. 5, you still have Mr. Goldberg on there as an unsworn witness, and what makes it much worse and more problematic is, he's paraphrasing the grand jury and preliminary hearing testimony, but not quoting it accurately. In fact, he's misstating it at least twice. And I can point those out as well and you'll see when he mentions it here--if you'll look at your transcript, the disparity will be quite obvious. And, finally, there's two critical things missing from the tape. One is, there's no explanation as to when he realized that his testimony at the preliminary hearing and grand jury were wrong. Thus, as a result of the way the tape is currently edited, the jurors will be free to speculate that it was right after he got off the witness stand, for instance, at the preliminary hearing in July of 1994 that he realized that he was wrong, when in fact, even if you give his false statement about learning from a friend of a friend of a friend who was watching the trial on television, given that statement, he didn't realize he was wrong until after the trial began and he knew what the Defendant's theory of the case was and he had heard or felt that perhaps the testimony he gave would screw the Prosecution or hurt the Prosecution, it's only then that he began to reassess what he had done. The way it exists right now is the suggestion that it could have happened the day after he testified. So that key element is missing. And, finally, there's another segment on the tape where Mr. Goldberg asks him a question and he mouths the words, "I don't remember," without actually uttering the words. I don't know if you recall that when you saw the tape yesterday. And to me, your Honor, and to other people I've discussed it with, there's a suggestion that during this, you know, prepping session that occurred between Mr. Goldberg and the witness before the tape actually started running, that certain things were scripted or prepared. And now Mr. Goldberg is asking him a question and he's going, "I don't remember," although he doesn't actually say it because he doesn't want to say it so it can be heard on the tape. He just mouths the words. And that too, you know, seems to undermine his own credibility. And that's missing from this tape. But I'd just like you to look for those things when you see it. And I think the key thing is, is they simply didn't follow your instructions as to what had to be taken out.
Your Honor, wasn't it your instruction to take out the experiment where he measures? We did.
The--I think the videotape indicates that we obeyed the court's orders in terms of the revisions requested. There's no experiment performed by Mr. Peratis. The only reference to a demonstration he makes is an eyeball estimate of how many 8 cc's is and that that was more than he did and that it looks more like it's 6-1/2. That's no more an experiment than having a witness testify, "Well, he stood about from here to there." "Well, would you get down and show us how far he stood?" "Okay." You get down, "Well, no. It's a little closer." "Okay. Tell me when to stop moving," in the eyewitness identification cases. Do you call that an experiment, or is that an experiment that requires the kind of foundational cross-examination that Mr. Neufeld implies? I think not. This is a very simple, non-rocket science sort of thing. This is a man who's--notice what I didn't say. This is a man who's looking at the test tube and eyeballing how much he thinks it is for what it's worth. The whole--all of the tape goes to the aspect of how much blood he took and the approximation that he made of that and the unreliability of any number attached to the amount that was contained in the test tube by virtue of the means by which he does it and by virtue of the fact that he is not aiming for any particular amount. It's not a formal thing. The question he has to answer is, "Did I get enough?" He got enough. The method he used by using the syringe drawing the blood, it's not with a vacuum. So that means that it keeps--he'll draw until he thinks he's got enough. I mean, that's really what it comes down to. He's not looking at the calibrated side of it. In this particular case, he hit a vein and it stopped, and he figured that's enough and it's not worth trying to get more, that, "I might injure Mr. Simpson. So I'll stop here." And that was all he was trying to do. And I think that the entirety of the tape makes it--that's what it makes clear. But to call an eyeball of an estimated amount of water in a test tube an experiment is really dignifying it way beyond the realm of reality there. And the aspect I think of the tape that the court wanted us to take out, we did. I think--I thought we did. Is there more that the court would like us to excise?
Your Honor, very specifically, the problem is not simply doing any kind of demonstration on the tape. He is describing orally a demonstrat--I'm sorry--verbally a demonstration that he conducted sometime in February of 1994, and that's what he's explaining. Even when he's not taking the syringe out now and doing the 1 cc withdrawals, he is verbally explaining it to the camera. And that experiment itself does not substantially replicate what happened with Mr. Simpson back on June 13th of 1994. So both exper--I mean, I thought your ruling was very clear, that no reference to either experiment could be included in this tape, and it's still there.
There's even a reference to a demo I'm about to show you on this point. There's the reference to the 6.5 result of the experiment, and he's only holding this up after he completes the experiment. It's not just a description of what he remembers seeing. Now, it would be 13 months earlier. All right. Back in June from June of 1994 to July 27, 1995. It's not just that. And, finally, your Honor, one of the interesting things is, when Mr. Goldberg--what Mr. Goldberg does is, he dissects the Q's and A's from the preliminary hearing. In the preliminary hearing, when he's asked, "When you say approximately--" you know, the answer is, "I drew--withdrew approximately 8 cc's," and the question then is: "When you say approximately, you did not measure the amount?
"Answer: Well, it could have been 7.9 or it could have been 8.1. I just looked at the syringe, and it looked at about 8 cc's." When Mr. Goldberg is asking him the q and a on the tape, he doesn't include the, "I just looked at the syringe and looked at about 8 cc's," in conjunction with, "Well, it could have been 7.9 or could have been 8.1." In fact, what he's saying is, when he says it could have been 7.9 or 8.1, "I knew this because I looked at the syringe and it was about 8 cc's." By separating those statements, which is not the way it is in the preliminary hearing, it distorts the answer of the witness where the witness is quite plainly, unequivocally explaining under oath at a preliminary hearing that the reason he knows it's between 7.9 and 8.1 is because he looked at the syringe and it looked at about 8 cc's. And by separating that, you really paint a very distorted picture for the jury. And then, your Honor, as I said before, it's missing those two very, very important elements, most important of which, of course, is when it first dawned on him that all of his testimony was wrong. That is a critical fact for the jury to assess.
But I thought that we agreed that all of that--your objection yesterday was that there was a lot of extraneous material in there, including the telephone calls from friends of friends of friends who told him that he had done all these silly things, and the motivations for him having done this, I thought we agreed that that was extraneous hearsay.
No. What I said about the motivation, your Honor, is that he lied about that, that what he told Mr. Blasier and what he told Jo-Ellan Dimitrius when we were in his infirmary on April 11th is that he was personally watching the trial on television, using the same television that he showed us in the infirmary that day, which was glued to the channel that was covering the trial while we were actually there in the infirmary, that he watched Mr. Cochran give his opening statement and it was when Mr. Cochran gave his opening statement that he realized, "Oh, my goodness, my testimony at these hearings may have screwed the Prosecution and I ought to reconsider."
The fact that Mr. Peratis says something on the tape that you feel you can rebut, that's for another decision. This is not the decision I have to make now.
No. But in terms of impeaching him--they want to impeach his earlier statement. The jury can't have, you know, half a glass on this. They are actually misrepresenting then the reality of this witness' statement by simply suggesting or allowing the jury to speculate. That's the more dangerous thing here, your Honor, that the jury could speculate that it was immediately after his preliminary hearing more than a year ago that it dawned on him that he had made this mistake and so he went back and rethought about it, when we know even if we take him at his word, that at best, it's sometime in February of 1995 after this trial has already begun. And there's a big difference between somebody innocently coming to the conclusion that he made a mistake and his testimony was wrong a few days after he gave it as opposed to here what he's saying is, it came to him for the first time when in fact he has a motive to lie, if you will, only after Mr. Simpson's defense has been articulated to the jury on television. There's a huge difference between those two. So they'd have to include that.
I'm asking that that portion--that that portion be included. Then if need be, we will rebut it on surrebuttal. I'm also asking that all the other portions of the tape though which are extraneous be redacted or deleted from the edited version. But you can't really, you know, misrepresent us or allow them to speculate as to when this dawned upon him when it's very, very clear that no matter what the source of the dawning was, the timing is not in dispute, and the timing is not until after Mr. Cochran gave his opening statement.
All right. Miss Martinez, I'd like to see--can you roll me up the point where Mr. Peratis says that he was wrong, it was probably 6 to 6-1/2 and he shows the tube? That's about the second--there's four series of answers that he gives with regards to this issue.
And while we're waiting for that, Mrs. Robertson, did you get in touch with the detectives?
The detectives were out in the field, your Honor, but Mr. Matheson will check out the items and bring them to the court.
Miss Martinez, can you roll it back before that? About 30 seconds before that. About 30 seconds before.
Yeah. All right. Keeping in mind the limited use of this particular item, I'm going to allow its use. So the objection will be overruled.
Well, what about then a concern, your Honor, which I haven't raised yet pursuant to 356 of the evidence code, that I would like to then include certain segments in this--
Well, the segments I would want them to include would be the segments where he talks--
Well, your Honor, why not let us put it back in? I mean, what--this is kind of like a game. We were happy to have it in to begin with. If Mr. Neufeld wants it--he complained about it yesterday. We took it out.
And we stopped and we went through all this trouble, and now I've had to watch it three times. You're right. But if there are items that aren't there that they want to put in under 356 as a matter of tactics, they're entitled to do that. I realize--I agree with you, this doesn't make sense, but let's proceed.
Well, we can put it back in. We have the original. We can put it back in so that we can play the whole thing for the jury. I mean, we do it this way--it's like the People are trying to hide something. The unfairness of that is, we were trying to show it to begin with and cut it out at their request. So I'm happy to put it back in. I don't think it's fair to create that impression.
Well, that won't be allowed to be argued. All right. Let's have the jurors, please. Mrs. Robertson? All right. Counsel, we appear to have both clothing items.
Maybe the People should be allowed then at least to indicate to the jury through the court that there was a portion excised inadvertently or something. This is unfair because, you know what is going to happen? We play the tape, they're going to play the excerpts and it's going to look like we were trying to hide something. The People are being penalized for their objection.
I didn't hear a withdrawal of the objection. They asked under 356, do they have an opportunity to play portions they feel are favorable to them. The answer to that is yes.
Now they're playing the excerpt that they asked to be taken out, creating the impression in front of the jury that we are hiding something.
The jury has withdrawn. Have a seat, ladies and gentlemen. Miss Clark, for you to suggest that this court is penalizing you I think borders on contemptuous conduct on your part. That's the second time you've done that. You're warned in no uncertain terms. Do you understand me?
All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we've been rejoined by all the members of our jury panel. Sorry for that start and stop there. Ladies and gentlemen, the next item that will be presented to you will be People's exhibit 615. It is a videotape of a statement. It is going to be allowed. I'm going to allow its viewing, the excerpts from this videotape for a limited purpose. It is presented to you for the limited purpose of evaluating the credibility of the witness that it involves. All right. Miss Clark, you may present 615.
he didn't realize he was wrong until after the trial began and he knew what the Defendant's theory of the case was and he had heard or felt that perhaps the testimony he gave would screw the Prosecution or hurt the Prosecution, it's only then that he began to reassess what he had done.
Well, certainly not a presentation that's designed to make this easy.
This is kind of like a game. We were happy to have it in to begin with. If Mr. Neufeld wants it--he complained about it yesterday. We took it out.
Miss Clark, for you to suggest that this court is penalizing you I think borders on contemptuous conduct on your part. That's the second time you've done that. You're warned in no uncertain terms.