Back on the record in the Simpson matter. The Defendant is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Miss Clark and Mr. Darden. The jury is not present. Counsel, anything we need to take up before we invite the jury?

Yes, your Honor. I think outstanding we still had the question of whether or not the Defense would be allowed to recall Gary Sims, and I should make an offer with respect to that.

Okay.

If Mr. Sims were called to testify to the witness stand, he would testify about a wet transfer that went from surface 1 to surface 2 to surface 3 on the B sock. We've had extensive testimony about the--what we've called, I guess, the A sock, but this would be the B sock.

That was Professor MacDonell's testimony, correct, amongst others?

Professor MacDonell and Dr. Lee testified about the A sock.

Right.

What we have now is Gary Sims making an observation that there was a wet transfer--

Out of curiosity, why did we wait until this late point to--

That is what the Prosecution's position is. I should add, incidentally, your Honor, that the stain in question on the B sock is also one that typed with PCR markers as being consistent with Nicole Brown Simpson. On July 17 we received a report from Dr. De Forest and Gary Sims which noted this wet transfer and we did not receive photomicrographs of this until some later point in time. I readily concede on July 17 we were aware that they had made these observations, but the photomicrographs of exactly what they saw and the pictures that they took were not made available for quite some time. I'm sure as the court recalls, they were proffered to the court, as I understand it, and you would have the best information, at a 1054.7 by Mr. Hodgman, and then as I recall the court noting you had them for quite some period of time because you couldn't figure out what they were because they weren't labeled. And I think that the photomicrographs--

They weren't labeled and they were just notes, so I had to have them interpreted for me.

Right. And the other thing I will note, however, just to make sure that the record is completely clear, there was some on Mr. Sims' original notes about seeing stains, but the significance of the wet transfer and the significant findings of the wet transfer, and most of all, the photomicrographs, were not available until later. I should note that one of the great ironies in my judgment in this case is that we wound up giving the Prosecution all of Dr. Blake's pictures, all of Dr. Lee's pictures, all the pictures, and to this day in dribs and drabs we get Mr. Sims' pictures and only a few of them, one on redirect examination at the last moment, and then these photomicrographs which we would submit are exculpatory evidence at the 11th hour.

So the basis of your argument--excuse me, Mr. Scheck. Let me just ask you a question. So the genesis of your inquiry as to this wet transfer was Dr. De Forest's notes?

Yes. The joint examination of Sims and De Forest on July 17th and the ultimate basis for us doing it was the set of the photomicrographs ten days ago.

People.

Well, your Honor, I don't know how Mr. Scheck can argue that. The notes turned over to us that were made by Mr. MacDonell and Mr. Lee reflect that--that were made during the examination by Mr. MacDonell and Mr. Lee in February of 1995 reflected they saw sock B, found the stains they are talking about, made notes and indicated explicitly the stain they want to go into now on sock B. In February of `95 they knew about that. They chose, they elected not to go into that with their own expert on the witness stand, Mr. MacDonell, and elected specifically to limit their inquiry to sock a even though they had full--they had their own examination, their own photographs, their own notes and conclusions concerning that sock well in hand for months. July 17th added nothing. Now Gary Sims' notes reflect all of these stains that we are talking about on both socks and they were made in November of `94 and turned over immediately thereafter. So the Defense has had notice of this since November of `94. Their own expert's reexamination which occurred on February 16, 1995, revealed that they had similar observations. Their conclusions of course about the significance of those observations are vastly different than our experts. But July 17th, even if we assume that they knew nothing about it until July 17th when Gary Sims Greg Matheson and Peter De Forest looked again at the same stains and again made the same observations that were made earlier in November by Gary Sims, even if we assume that that is what triggered the Defense inquiry, it was still during their case. Bear in mind, your Honor, when did the Defense conditionally rest? Basically rest? What was that, a week ago? Week and a half ago? And they want to tell us that not until--that they conducted their case for more than two months and during that time, after having had two months, not only the reports of their experts since February, but our experts since November, and then again in July, they are only thinking of it now. The Defense has given you absolutely no reason to permit this, but I can promise the court this: This is very confusing stuff, and if they put on Gary Sims to give his conclusion, the People, in all fairness, will have to rebut. We have to rebut so the jury is not left with a misimpression about what the significance of these stains are. We will have to call Greg Matheson, we will have to call Peter De Forest.

What is the possible misapplication of this evidence that the jury might be inclined to take from this?

Well, the Defense is obviously going to want to present this as evidence of planting again, and what they are going to do, what the--the pernicious aspect of this is that Gary Sims is not a blood spatter expert. He has certain observations. His opinion is that of course it was not planted and the appearance of what he sees on that stain does not support that theory, and yet he will be substantially attacked by the Defense if he attempts to render any opinion as to the logic of inferring planting from the appearance of the surface 3 of that sock.

We will then have to call two others to explain their theories as to what could have occurred to cause the transfer. We have Peter De Forest who is a blood splatter expert and Greg Matheson whose testimony is relevant because he saw the socks earliest in time and can testify to the nature of their handling and packaging and care that will give substantial reasons for the jury to understand why this is not evidence of planting at all, but a very simple and logical explanation can be given. So you know, I mean, we are going to talk about another few days of testimony. As the court knows, expert testimony takes a very long time to elicit and counsel have been very thorough in examination and cross-examination all for a piece of evidence that they had for months and elected not to use. This is willful delay, your Honor. If the Defense thought this was so all mighty important, they had every opportunity to put it in during their case in chief and elected not to. And our expert's reexamination added nothing to their knowledge on July 17th. Their own experts made those notes in February. They knew--

Is there anything about your rebuttal case that would open the door here?

With respect to the socks? I haven't even had a chance to think about that. I would have to go and confer. I'm sure that it would because we are talking again about the whole planting theory which goes back to the conspiracy theory. I'm so tired, your Honor. I'm going to need a moment to consider the full ramifications. I'm talking--when I say I'm going to need to call these two witnesses--

Well put. I agree.

In any case, your Honor, I'm only talking about the limited direct rebuttal we will need to present to this testimony and that is just that. I don't--and I'm not even sure what this evidence adds to the Defense case. They have presented their theory through the stain on sock A, and if they really thought sock B was that important, they certainly had the knowledge, they had the witnesses right on the witness stand, Dr. Lee and Mr. MacDonell, right in their notes. The Defense is not telling you they didn't know. This is a fact. We really want a better closure. I mean, we can go on for days like this searching for a better closure, your Honor, and I don't know what it adds except a lot of time to a very tired jury and a lot of very technical testimony that will be needed to sift through the implications the Defense seeks to draw. I would need a little time to ponder what additional testimony the People would need or be entitled to present as a result of the door opened by this.

Mr. Scheck.

Just two brief comments, your Honor. I realize that it is very tiring experience for all of us, but I hope this is not a preview about how facts are stated in closing argument. The fact of the matter is that there was an examination in February by Dr. Lee using a microscope from the LAPD that, I believe the testimony was, was constantly out of focus and didn't go more than two times, so I think that she is just misstating what kind of observations could be made. Yes, stains were seen on the sock--both socks, they were observed, but not with the level of particularity that are required to make an evaluation of these wet transfers. I will agree that Gary Sims is not a blood spatter expert and we are only bringing him in for observation of scientific fact. And I certainly don't expect to hear the Prosecution argue--put in their closing argument that he was a blood spatter expert. Indeed, I think that is what makes this more significant, that when the Prosecution's own blood spatter expert, Peter De Forest, saw it on July 17th, the full significance of the observations became apparent.

Well, Mr. Scheck, if the--if the Defense did in fact, though, have access to the sock and if Dr. MacDonell did have the opportunity to look at this and if bloodstains were noted on the interior of the sock, I mean, isn't that the whole point of this?

Well, in terms of their notes, it is not accurate to say that they made those particular observations when they looked at the sock in April with respect to the B sock. Secondly, I must say that I do reject the notion that if a--if Prosecution experts, upon further examination of the B sock, after Defense has raised issues about the A sock, come up with findings that are exculpatory, obviously exculpatory, they even present it to the court in chambers because they knew it was exculpatory, that is why we haven't seen Dr. De Forest in this case, I would submit, or it is certainly a fair implication. It doesn't seem to me that the argument that, well, the Defense experts, you know, had some kind of limited opportunity under certain circumstances to make observations of the sock, therefore they should be precluded from even putting on exculpatory evidence that the Prosecution experts found.

But this has to be done in a timely manner, though, is the concern.

Well, I mean--you know--

Because at this point we are talking about calling Mr. Simpson down from Berkeley and then I assume that this is going to require Dr. De Forest from New York.

Not from our point of view. What we needed were the pictures, proof.

All right. Do you have the photomicrograph of this particular surface?

Not with us.

Not with us. We have them.

And Mr. Sims has a set. We have discussed those with him on the phone.

Oh, I understand that. I would like to see it.

Well, I thought you had seen it. You gave it back to us.

I would like to refresh my recollection as to what is there to see how significant it is.

Well, I mean, I--

I mean, you are asking to call the witness but you don't have the stuff available?

Well, no. We asked to him bringing the originals with him.

Your Honor, may I ask that the court look at the notes of Dr. Lee concerning his examination of the socks in February and April? I think the court will then see clearly that Dr. Lee saw exactly what they want to now present in mid--late September.

Does it say wet transfer?

Well, it circles--I would like for the court to see it. It is one page, a diagram. It is very clear that they knew what this was and the significance of it.

You got it?

I'm having it brought down right now.

Do you have Mr. Sims' photomicrographs available?

No, I don't. I didn't know there were any. This was the first I've heard about them.

All right. Well, let's do this, counsel: Let's proceed with Commander Bushey's testimony with the jury. After we conclude that, hopefully these materials will be available and I can determine that. All right.

Judge--

Yes. Mr. Neufeld, good morning.

Miss Clark and I have entered into a stipulation regarding the syringe and we will introduce the syringe and we can do that at your pleasure.

All right. Why don't we do Commander Bushey's testimony and then we will do the stipulation regarding the syringe and then we will see where we are with Dr. Lee's notes. All right.

May I ask one question? I just want to get some idea if we can determine regarding Mr. Sims, maybe we can make some calls and make sure that if you can let us call him, he can be here this afternoon.

This afternoon?

As soon as possible. Do you want us to make some calls and check that out also? I think it would be wise to do that. We would be in a position to rest at that point, conditionally rest.

I've got to find out Mr. De Forest's turn-around and then we are going to have to get Greg Matheson as well. We are going into next week with this one, Judge.

The question is--while I'm still up here talking, the question is you have to make that judgment. You have not been loathe to exclude witnesses where you thought it was appropriate, and if they have nothing to say, they have to make an offer of proof. It is not like they can threaten you with witnesses. We have made our presentation. I'm saying, out of an abundance of caution, let's see if Sims is available this afternoon.

Let's do this: While we are going forward with Commander Bushey and the syringe vial, perhaps we can have the attorneys otherwise not occupied check on the availability of these people so we can have some guess.

Thank you very much at this point.

All right. Deputy Trower, let's have the jurors, please.

Your Honor, at some point are we going to hear the Defense rest?

Are we going to hear the Prosecution rest?

You've already put on a rebuttal case. We still haven't heard Defense rest. It would be nice. Closure, you know.

That will happen this week.

We are going to rest this week, your Honor. The Defense never rests, bit we are going to rest this week. We are waiting on the Supreme Court to tell us one time item, too, that will help us decide whether we are going to rest. We are waiting imminently for the Supreme Court to speak on this issue, so that is another reason, counsel.

We'll wrap it up this week and I'm sincerely hoping to at least, if we don't instruct Friday, then instructing on Tuesday and starting with arguments