Okay. We can do this informally. All right. Mr. Scheck--I'm sorry--Miss Lewis, you're the proponent of the request for judicial notice?

Actually, Mr. Goldberg.

Good afternoon.

I knew I'd get it right sooner or later. Good afternoon.

We're asking for judicial notice, your Honor, in relationship to several questions in four areas that were propounded to Dr. Lee. I don't know whether the court had an opportunity to read our request for judicial notice.

Yes.

It's actually fairly brief and succinct and I hope states our position rather clearly, but I'd just like to emphasize that, the key points for your Honor because I know that you've been covering a lot, as the court has previously pointed out, in the last few days.

There are four areas that we're complaining of. The gravamen of all of them is that in each one of these instances, there were a series of questions that were asked Dr. Lee that had the clear and unmistakable effect of conveying to the jury the overall impression that the Prosecution somehow unilaterally determines when and under what circumstances the Defense can have access to evidence as opposed to the court making those kinds of determinations or at least having a substantial role in making those determinations. And also, these questions were couched in language and the testimony was couched in language which elicited testimony to the effect that--that Dr. Lee was prohibited or denied access or wasn't allowed access to the evidence until certain dates. The first such instance, your Honor, is in relationship to the inspection of the socks. And the court will recall that there was fairly extensive testimony by Dr. Lee about how he felt he was treated at LAPD and the extent of the time that he had to look at the socks, only being 20 minutes I think he testified, even though in actuality, I think he had more, but he implied that it was only 20 minutes. In reality, the socks had returned from the Department of Justice on November the 22nd of 1994, and there was no application to this court to look at the socks between November 22nd and February the 16th. And clearly, Defense could have done it before February the 16th. I think it was the Defense that decided to do this the very last moment before it was sent to the Department of Justice. So this is a wrongful impression that has been created in front of the jury. The second item was that the Defense asked a number of questions about the Bronco that were couched in terms of asking Dr. Lee, "When were you first allowed to visit the Bronco," or, "When were you first permitted to look at the Bronco," and words of that kind. They used that sort of language on a number of occasions. On some of the occasions, we objected and objections were sustained. But this was one of those instances where we felt that the answers to the questions still left the impression that somehow it was the People that were not permitting Mr. Lee to look at the Bronco. And again, this is an area where the Defense never made any application for this court or complained to this court about Dr. Lee's access to the Bronco. The third area was in relationship to the inspection of the Bundy crime scene where Dr. Lee said that he was ordered by someone, I don't know who--we weren't able to confirm this one way or the other--that he could only be at the crime scene for 20 minutes. However, he never made any application to this court nor was any complaint ever lodged with this court. Actually what happened was, I believe prior to the time I came on the case, there was an informal agreement or maybe a formal agreement between the parties that the People would have reasonable access to the Rockingham location for certain inspections, that the Defense would also have reasonable access to Bundy. But the unmistakable impression was left before this jury that the only access the Defense had was this 20 minutes and they were ordered that they could only be there for 20 minutes and were prohibited doing the kind of testing that Dr. Lee would have liked to have done. And the fourth item that was testified to by Dr. Lee is that he stated that Mr. Shapiro had told him that the only photographs that they had received from the Los Angeles Police Department in terms of crime scene photographs were second or third generation photographs. As the court knows both from your experience as a Prosecutor and also as a Judge, we always provide in discovery original photographs from negatives, which was done in this case and is done in all cases. In fact, I don't even know if we have the capacity to routinely provide anything other than that in terms of a photo--shooting photographs and then providing second or third generation copies. So the jury has been left with the impression that we gave the Defense less than satisfactory evidence. That is clearly not true and we believe that that misimpression should be rectified. Therefore, we are asking that the court take judicial notice, as the People have requested in our application for judicial notice, as to these four items. What the court is being asked to do is take judicial notice of the law of the state of California in terms of discovery obligations and inform the jury that the People do not get to unilaterally make these kinds of decisions, that applications can be made in front of the court. That is mandatory under the code of evidence. And then we also ask the court to take judicial notice of the court's own files, that certain applications or orders were not sought for these four specific items of evidence, and that is permissive, that the court can take judicial notice of that under the California rules of evidence. So we would respectfully request that the court take judicial notice of these items in order to correct these misimpressions in front of the jury.

Thank you.

They were about to be packaged up, sent out.

We sat there waiting. And you can bring Mr. Hodgman and Mr. Yochelson down here, and they'll tell you that every syllable that Dr. Lee uttered about what those facts and circumstances were were true. And as far as what went on in the evidence processing room, I was a witness and I know what I saw. Now, Dr. Lee testified to what happened there and those are the circumstances that they put together in terms of his inspection of the evidence. Those are the boards that Mr. Harmon chose to put in. That was the testimony they chose to elicit from Mr. Yamauchi. Dr. Lee expressed himself clearly about what he thought of it. They've got to live with it. They did it. As far as access to the crime scene is concerned, Mr. Goldberg indicates that he is in no position to give a factual refutation as to what the terms and conditions were of Dr. Lee's inspection of the Bundy crime scene. The record is very clear that Mr. Shapiro had sent letters to the police department and had made requests to the Prosecution and the people at the crime lab for Dr. Lee and Dr. Baden to have access to the evidence as they were testing it. Miss Kestler made very clear that that would not be permitted, that it was not their policy, they were going to get to--deal with it when they wanted to, how they wanted to and we've had a lot of litigation about access to the evidence. And those were the terms and conditions. He wanted to get the crime scene as soon as possible. Their argument in closing is going to be that some of the observations he made there that day should be ignored by the jury because some other unknown people might have left imprints on the walkway. And we have to live with that, but our access to that crime scene was limited and they have to live with what they did with it. Those are the accounts. He has said nothing here that in any way contradicts the facts as Dr. Lee stated them. Then there was the whole issue of the photographs. I actually looked every one of these quotes up, and at 42895, all Dr. Lee has said--these are three pictures given by attorney Shapiro. At 43241 to 43242, it's Mr. Goldberg as I understand who asks if the picture on our board is a photo of a photo, and it was made clear that we had small original photos given to them and then we blew them up as photos of a photo. That's all that's there. He asked that question. The--then there is testimony on 43276 to 43277 where Mr. Goldberg shows the new and much better pictures that Agent Bodziak testified were prepared in August for purposes of confronting Dr. Lee on the witness stand, and Dr. Lee said: "Don't have picture as good as this." And then he indicated that even this picture, which was an overall picture of the walkway, was taken at an angle and it was selective in that it was focused on Bruno Magli prints and not any other prints, and that's what he said. Then he was asked something to the effect of, "Well, didn't you ask for better quality prints?" And he said:

"I asked Mr. Shapiro. He said that's all he had." Now, that raises one issue which I think frankly is the genesis for this whole motion which I'll get on to in a second has no basis in law whatsoever. But I'm even concerned about the facts here. And that is, there's a significant motion pending before this court with respect to the contact sheets. Because I'm sure the court's recollection of this is pretty clear. And that is, we are asking for these contact sheets from day one and they're going to have to listen in closing argument to the testimony of Mr. Rokahr and what we were finally able to do when we got those contact sheets. Now, the record is indeed somewhat ambiguous. Mr. Hodgman can't recall whether or not we asked him for negatives. The court's recollection may govern on this because I think some of these requests were actually made in your presence. It's Mr. Neufeld's recollection and my recollection we did ask for negatives as well as contact sheets. But the point was, they were in the exclusive control of the Prosecution. And nobody disputes that we asked for contact sheets all the way through and didn't get them. And the contact sheets reveal an extremely important fact about when that picture was taken of mark Fuhrman pointing to the glove, a very important fact in this case.

Your Honor, I'm sorry. We seem to be on to a different motion here. We're all shaking our heads here.

No. The point is, that motion is pending and I'm saying it as directly as I can. This motion is frivolous and it's done because the court has put that under submission, is going to give that contact sheet motion serious thought. And factually, none of these things even state what they say. He never talked about wrongful denial. He just stated the facts as they were. The citations they make here don't support their position. Now, as for their legal position, their legal position is bereft of one case citation, and that's for a very good reason, because it is a complete misunderstanding of what one can do with respect to judicial notice. They are not asking for judicial notice of the statutes or some public record or fact or anything that's laid out in 451. What they're actually asking for is that judicial notice be taken that if the Defense filed a motion or if the Defense--of the fact that if the Defense filed a motion for certain kinds of relief, then the court would have granted it. That's essentially what they're asking for in each of their requests, and it's inappropriate unless--it's inappropriate period. And what it would really require is for the court to take judicial notice and summarize every single discovery request that was first given to the Prosecution and rejected and all the different motions that went into the litigation of access to the evidence in this case, which was fiercely litigated, including the court's decision that they could continue testing all the way through the case and withhold access to certain evidence. I've tried to look back at that file, and it's numbing and it seems to me wholly inappropriate for this kind of judicial notice to be taken for which there is no citation whatsoever that one can take judicial notice about court orders that were not requested, not note the ones that are relevant, on point, that did make requests, including informal requests to them, as were directed to do by the discovery sections, and it is totally not called for in light of the testimony that they cite here. So this application is wholly without merit on the facts and the law and I submit to the court it's really just a "Make way" because they're worried about something else that the court still has under submission.

Thank you, your Honor. Well, that's the first time I think I've heard My Cousin Vinny cited as a legal authority in a court of law. What perhaps counsel doesn't know, I believe that citation was overruled in the more recent movie of, a few good men. Your Honor, what we have is a situation here where counsel through his clever phraseology and asking of questions--I don't think it's Dr. Lee's fault--creates certain impressions in front of a jury which are obvious to anyone who is listening to what is going on, obvious to this jury which are untrue. And the issue is, does the Prosecution get an opportunity to show that it's untrue. Yes, we can, and we can do that by offering evidence, and we could have offered evidence or we can do that in other ways that are permissible under the California evidence code. That is judicial notice. And when the court is either required to take judicial notice or may take judicial notice, that is an appropriate avenue to take to counter evidence that was offered and impressions that were created in front of this jury. I've already tried to state the factual basis for the record and perhaps would invite the court to look at this again because it's not just a question of reading the literal language and the very careful phraseology that Mr. Scheck used, but a question of the court evaluating the overall impression that it created and whether wrongfully created an impression that should be remedied and that should be set straight if the People are entitled to set it straight. Just very briefly, your Honor, just to give the court an idea of this overall statement that I'm making that in general, misleading information was put before the jury, on 42900, Mr. Scheck asks: "All right. Now, Dr. Lee, you mentioned before that arrangements were made so that the Defense experts for the first time could actually examine items of evidence in this case at Albany Medical Center on February 17th and 18th and 19th, correct?" It's not really a complete sentence or thought, but what is clearly stated here is that the first time that they could actually examine items of evidence was on February the 17th, 18th and 19th, that they didn't have any ability and weren't allowed to examine evidence before then. Similarly, on the very next page, 42901, Mr. Scheck asks: "Were you able to, you or other Defense experts, to your knowledge, were you given an opportunity to actually examine physical evidence by touching it, microscopic examination, prior to the shipment of that evidence to Albany on February the 17th, 1995?" And he said, "Yes." So again, it's making it sound like we did not give them the opportunity. Well, they didn't ask. They didn't make an order, an application for this court. When the socks had been returned on November 22nd, I believe Mr. Harmon sent a letter to say that the socks are back. Between November the 22nd and February the 17th, they could have asked to see the socks, and they didn't. But they have been led to believe, the jurors, that we did not allow them to--unilaterally said, no, you can't see these, the court didn't have anything to do with it. We just said, you can't see them and they didn't get a chance to see them before February the 17th. It's a misimpression.

On 43030, in relationship to the Bronco, Mr. Scheck asks the following question on line 7: "Couldn't get to see the Bronco itself? "Answer: No." Then on line 15: "By Mr. Scheck: You did not see the Bronco itself? "No, I did not." Well, what does couldn't get to see the Bronco mean? On 43022, he's asked the question: "By Mr. SCHECK: Dr. Lee, before I move on to the next series of boards, I'd like to ask you briefly some questions about the Bronco. Did you have an opportunity to personally examine and look at the Bronco? "Answer: No." So clearly, again, the unmistakable impression is being conveyed to the jury that somehow we did not give him the opportunity and he was denied access to the Bronco-- I'm sorry. Mr. Cochran, are you finished?

I was talking to my client.

I know. But it's a privileged conversation with your client and I could hear what you are saying. Thank you. Then in relationship to the photos, on 43276, he's asked the following series of questions by me: "Doctor, did you ever ask the Defense to provide you with higher quality pictures? "Answer: I get the information. That's all the picture we get. It's total out of sequence, mixed up like a deck of card. I spend lot of time trying to make some sense out. "Question: But when you got it from Mr. Shapiro, did you say, `please send me some examination quality photos'?

"Answer: I did ask it. He said that's all he get. He took it back right away. I don't have the photograph." Now, Mr. Scheck, when he read this exact quote, he said that Mr. Shapiro said, "That's all he has." He didn't say, "That's all he has." He said, "That's all he get." Well, who did he get it from? The People. So again, what is clearly being stated is that all we gave him were photographs that were not examination quality. You know, I don't know why the Defense does this. I don't know why they create misimpressions that are very easy to rectify, that are very easy to set straight either through evidence or through the provisions that are allowed by the California evidence code and then complain when we try to do it. But Mr. Scheck did this. The questions are obviously very, very carefully worded and carefully phrased, but I think now we should have the opportunity to set the record straight. And under California law, judicial notice is an appropriate way of doing it. We are simply asking the court to take judicial notice of what the law is. It's a correct statement of law and the court can decide when access can be granted or denied to evidence, and we are asking the court to take judicial notice of its own finding that such applications were not made and we would ask the court to do so.

All right. Thank you, counsel. All right. Under ordinary circumstances, the request for a court to take judicial notice of certain facts, statutes, one of the basic requirements is that, A, either there be no reasonable dispute as to the fact or circumstance that the court is asked to take notice of or that the facts are easily susceptible of determination. These discovery issues were hotly contested throughout this case and there remains controversy today. There's nothing we agree upon here between the sides. These are matters that could have or should have been resolved during the course of the examination of the witness in question. The request for judicial notice is denied. All right. Scheduling of exhibits.