Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier. The people are represented by Mr. Darden and Miss Clark. The jury is not present. The record should reflect that this morning I had a chambers conference with counsel to discuss a questionnaire that will go to the jurors this afternoon inquiring of them if they are desirous of extending the hours of deliberation into a later session during the evening hours and whether or not they are desirous or willing to deliberate on Saturdays, with the understanding that any deliberations must be conducted here at the courthouse and in the jury deliberation room. We also discussed--and excuse me. Counsel had no objection to the questionnaire proposed by the court. Also, the record should reflect that the court has directed counsel to be available on a one-hour's call for the purposes of responding to questions by the jury and also requests for read back. And the court has indicated also that a longer time period to be available for the purposes of rendering a verdict will probably be in place, but we will discuss that when the time comes. All right. Anything else we need to discuss before--put on the record before we conclude with Mr. Darden's argument?
Good morning. I just wanted to register for the record certain objections, one in particular to Miss Clark's argument, and get some determination from the court on this issue. At one point in her argument she began making references to the defendant's not performing tests on evidence and started making comments about experts for the defense who never appeared in court or testified and what they did or didn't do. In particular, the comment that concerned me the most was in reference to EDTA testing. It is one thing to say that dr. Rieders didn't perform a test using the ms/ms machine, because that certainly came out and was impeachment in the testimony, but what concerned me was a reference, well, the defense had other experts and they didn't come in and give you test results, or anything to that effect, and that seems to me improper, because, first of all, it is commenting on a privileged area, I think that is 913. And secondly, I think we've already had some litigation on this issue where the court actually made a finding that the conduct of the prosecution in terms of trying to find out what, if anything, defense experts were doing in this area was, in the court's words reprehensible, so it seems to me that a comment on what other experts could have done with respect to their testing or did do or anything like that would be improper, although I have no objection to her making comments about dr. Rieders. I thought that--and I would like some kind of guidance from the court on that issue.
I don't know what to say, judge. I pointed out to the jury what is in the record. I pointed out the truth. And I think I was very specific about the people they called and they didn't call. What I pointed out in--to the best of my recollection, is that they called dr. Rieders to testify about someone else's tests. He performed none. He could have. I talked about dr. Gerdes and I talked about dr. Lee and I talked about dr. Blake. This is all in the record. I don't recall--I did not refer to other experts that were unnamed or that did not come into the record. I talked about the ones that were in the record, and that is why they didn't perform any tests. So I don't know what the complaint is.
All right. Mr. Scheck, do you want to--I mean, are there any case citations? Because primarily during the course of argument the prosecution counsel are entitled to comment upon the state of the evidence and the failure to call logical and material witnesses, and that is people versus miller, 50 cal.3D, 954, the court's comments at 996.
No, no. It sounds like from her comments I heard something different, and if Miss Clark doesn't believe she said that or certainly isn't going to make that argument on rebuttal, then I guess we don't have a quarrel.
It seems to me, though, just to make the point very, very clear, it is one thing to comment on dr. Rieders on what tests he did or did not perform under the circumstances. I distinctly heard her say the defense has other experts that could have done that test and that I think is beyond the miller case and beyond proper comment on the record. And it appears that Miss Clark agrees.
Right, so it appears as though there is no disagreement here, but I am very concerned because--
All right. Let's do this: Let's have our computer maven, Mr. Blasier, see if he can find the appropriate comment and at the next recess we will take it up, if you feel it is something that is appropriate.
No, because in case--I don't know--we can't all remember what we say over the period of hours, but I will say this: Any reference to other experts would have been they could have brought someone in, not they had someone available.
it is commenting on a privileged area, I think that is 913... the court actually made a finding that the conduct of the prosecution in terms of trying to find out what, if anything, defense experts were doing in this area was, in the court's words reprehensible
I pointed out to the jury what is in the record. I pointed out the truth. And I think I was very specific about the people they called and they didn't call.
Any reference to other experts would have been they could have brought someone in, not they had someone available.
The discussion is over.