All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. With regard to the renewal of the 1538.5, I think Mr. Uelmen is correct, that the court's evaluation is that of the witnesses who have testified in support of the motion at the preliminary hearing. And, therefore, the testimony offered by the Prosecution of Commander Bushey is not admissible at a renewed 1538.5. And so the record should reflect that in making these determinations, the court has not considered Commander Bushey's testimony since the Prosecution may only recall witnesses who testified in the original motion. Having said that, the court has evaluated the testimony of Agent Wachs, Craig and Lawrence Fiato and also evaluated the circumstances that--circumstances in the context that surround those discussions, and the court in noting the context, that is drinking beer in a hotel room and standing around smoking on the smoking deck on the 18th floor, strike the court as being relatively informal circumstances and the context leads the court to believe that the comments if, in fact, made by Vannatter--and I believe they were--I don't find significant weight can be placed upon them. In evaluating what impact that has on the credibility of Detective Vannatter for these purposes, I find that it does not have significance or overriding impact that would cause this court to reevaluate the original finding. The conduct outside of the Rockingham residence, when viewed objectively, does not indicate a search for the Defendant to arrest him or to otherwise invade his home. The officers stayed outside the residence for a considerable period of time. They attempted to get a response from the residence inside and were unable to do so. Rather than at that time breaking and entering, they sought assistance from the Westec alarm company. The Westec alarm company responded. The information that they gave to the officers raised the concerns even more, the indication being that there was no information that the Defendant was out of town or should have been out of town and that there should have been a housekeeper on the premises at the time that should have been in a position to respond to the knocking and the ringing of the police officers. The Prosecution is correct that the standards cited in hull by Justice Nicholson is the standard that is applied to cases subsequent to the imposition of proposition 8. So the court's previous ruling stands. All right. Let's move on to the Henry Lee notes and whether the Defense should be allowed to recall Mr. Sims. Mr. Scheck, do you want to address that issue?
I just wondered if you could--a word of interpretation on Dr. Lee's notes then. What I have before me--and this is Defense discovery pages 764 through 770 and on the--
This is April 2nd. And am I correct in assuming that O-Tolidine tests were done on the B sock and that results, positive results were noted inside--on the inner surface on the B sock?
That it appears to me that in some areas, that's true. There are a number of areas on that sock. Yeah.
All right. Mr. Scheck, do you have any other explanations as to why the court should allow the recalling of Mr. Sims in light of--it appears that the Defense had possession of the sock at Mr. Taylor's facility in Altadena, which is, you know, a local community here, that the previous complaint was that at the LAPD, that Dr. Lee was not given a professional welcome and was not accorded appropriate equipment. But it appears that at Mr. Taylor's facility, Dr. Lee and Professor MacDonell had free access to the sock, were able to test it, examine it microscopically, to take photographs, to do testing. And is there a reason why we should go beyond at this point?
I don't think this makes any difference. I mean, assume--let's--there were earlier notations by Mr. Sims as to what he saw in November. He was the first person who saw the socks in their pristine form. Then in July, he and Dr. De Forest make additional examinations in light of what the Defense witnesses said about the A sock. They then come up with information that corroborates the fact that there's a wet transfer from surface 1, surface 2 and surface 3 on the B sock. Now, let's posit--and I don't think these notes are definitive of anything, but let's posit that our expert missed it and that our expert found it. It's exculpatory. It's exculpatory.
People. Forgive me for reasking, Mr. Scheck, you know, but I had a lot of other issues I had to contemplate. So when I ask to revisit an issue, I'm not--
I don't think I understand Mr. Scheck's argument. But, first of all, the diagrams make it clear that Mr. Lee saw the--made the relevant observations back in April at Mark Taylor's laboratory. That's what the O-Tolidine tests are all about. That's why you have the diagrams and the number of pages devoted to sock B. I think it lists positive, negative, positive, negative showing the entire list of testing stains that he did. So they obviously knew about it back in April. Obviously, they chose for reasons they're most aware--perhaps they thought that the sock a stain was more probative and they could elicit better expert testimony about it. In calling--let me see if I can frame this. Tactically speaking, your Honor, what they do in calling only Gary Sims is attempt to put the issue in front--they have the testimony of Mr. MacDonell. Assume hypothetically, your Honor, that Mr. MacDonell looked at sock B and said, "I'm not going to be able to give you your planting theory on this one. It doesn't look right. There's a couple of yarns that indicated transfer. You can't say it's transferred from the surface 2. It could be a transfer as a result of Mr. Simpson's bloody finger, and I just can't give you what you want on that." So what they do is, they call Gary Sims to testify to the few yarns that seem to be--that give a positive result with the presumptive test. His observation of those couple of yarns--and leave it at that--linking the inference on Mr. MacDonell's previous testimony--and this way, they get all the inferences they want and all the implications they want without ever having to be shown up for the fact that he cannot link it up with Mr. MacDonell's testimony.
It will then be up to the People to set the record straight, no. 1, that the surface 3 stain cannot--or can't call it a stain. It's really so tiny--but what they see on surface 3 cannot necessarily be attributed to a transfer from surface 2. No. 2, if there were planting, you'd see far more than a handful of yarn transfers. No. 3, that it could easily have been transferred by a bloody finger or, no. 4, that it could have been the result of a phenolphthalein test or, no. 5, from the way the socks were laying, the toe folded up on the ankle in one photograph, I think it shows--
Let me ask you this, Ms. Clark. One of the things that concerned me--let me tell you two things that concern me. One--actually three things. One, these notes from Dr. De Forest were turned over relatively recently, at least the ones that were held back for 1054.7 purposes, which I then ordered disclosed, which was within the last week or 10 days. Secondly, Gary Sims was the Prosecution's witness who gave--testified to the wet transfer stains on sock a and did so I thought in a very concise way. Thirdly, during the course of our discussions when we had Mr. Sims back here, the Defense did ask for permission to retake him as a Defense witness to go into the areas that they wanted to go into at that time. I told them that I would likely allow that. Then you objected or I think it was Mr. Darden who actually had objected and indicated no, if they want to take him as his own witness, let them call him in their case. So I said so with that representation I'd hate to drag Mr. Sims back, but I did tell them I would allow Mr. Sims to be recalled. So I'm kind of in a situation because of objection, we've got to drag him back.
I might add that I think tactically, they believe that Sims is a good believable witness before this jury.
And for him to say that there's evidence of wet transfer, that's tactically great for them.
No. 1 thing, I do not recall him ever testifying there was evidence of a wet transfer on sock A. I remember him discussing the powder that he saw on surface 3, but I don't recall him saying it was a wet transfer.
Mr. Scheck--excuse me just a second. Mr. Scheck, do you have Dr. De Forest's notes, the ones where it does discuss the wet transfer?
I don't think Miss Clark is disagreeing with Dr. Forest's notes saying wet transfer. I think what she's saying, previously Mr. Sims had offered testimony which allows her to argue that the stain on sock a is not a wet transfer, but is flaking from fibrils that arose from the cutting.
That's precisely why you are in trouble on sock B, because he says something differently.
Well, you know, I've talked to Mr. Sims. We're not in trouble--excuse me--but nevertheless, the problem that I have with the Defense posture of saying we can recall him on--in our case in chief is, the court did not give us an opportunity to be heard with respect to whether it was an appropriate thing to do. The court is aware this is an unusual posture to be in. But the court is aware that at the time we presented Gary Sims, we were in our rebuttal case. The Defense had rested their case subject to Whitehurst only. They sought no provision for Gary Sims or any other witness. And the People specifically requested the court that the conditional resting be not permitted to expand the Defense case out to the outer realms of the universe because they have not formally rested. Otherwise, we can go on for many--I mean, keep calling people, so can the People. We've got to end somewhere.
I don't find significant weight can be placed upon them. In evaluating what impact that has on the credibility of Detective Vannatter for these purposes, I find that it does not have significance or overriding impact that would cause this court to reevaluate the original finding.
Now, let's posit--and I don't think these notes are definitive of anything, but let's posit that our expert missed it and that our expert found it. It's exculpatory. It's exculpatory.
So I'm kind of in a situation because of objection, we've got to drag him back.
So what they do is, they call Gary Sims to testify to the few yarns that seem to be--that give a positive result with the presumptive test... and this way, they get all the inferences they want and all the implications they want without ever having to be shown up for the fact that he cannot link it up with Mr. MacDonell's testimony.