All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Mr. Scheck, you wanted to be heard on page 43200?

Yes, your Honor. A few things to say about that. The first point to be made is that I think in Miss Clark's argument, she started to say that--with the statement there was nothing around the glove, but Dr. Lee--Dr. Lee stated differently. Now, she starts with a question: "Dr. Lee, when you were at the Rockingham location, did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning unit near Kato's house?

"Answer: Yes, sir." That's all that's in the record at this point. Now, as the court noted at the bench, I would say there's three reasons at least that this was improper comment and that we should have an instruction to the jury, which is my request, that there is no evidence in this case Dr. Lee found blood on the air conditioner. And it's for at least three reasons. No. 1, there's a clear ruling in this case by this court that we've all had to live by that presumptive tests are not admissible for showing that blood was present, and that is a clear ruling. There was a ruling that in the impeachment of Dennis Fung, that I had opened the door with respect to the Bronco, and the court made a limited finding that they could offer testimony about the extent of presumptive testing in the Bronco.

So they know that that rule is in effect, and we've all lived with it and been very careful with it since. So that's point no. 1. Point no. 2, as the court noted from the bench, when one goes on to read the rest of the testimony of Dr. Lee in this area, he--the answers that were elicited were not that he had found blood on the air conditioning when Mr. Goldberg went on and continued asking him the question, and, in fact, as I had noted on the record--and I'll get to the third point here--that he cut off Dr. Lee when Dr. Lee was about to give a further explanation when he indicated that he had found--he had done presumptive tests on the doorknobs, some sink traps and air conditioner. And then Mr. Goldberg said: "I'm just asking about the air conditioner. "Answer: I saw in different places. That's just about tests." And then Mr. Goldberg said: "That's all right, your Honor. I'll move on. I think he answered the question." Now, I came back the next day--

Is there a report by Dr. Lee that says he did any testing there?

Yes. He did presumptive testing there. But I came back the next day, and it's at 43380 of the record, and what happened, your Honor, is that I indicated to the court at that point--have you read this?

No. I don't have 43380. Have Mr. Byrne give me the next volume, 214, please.

Yes. I came back the next day, your Honor--I think it actually starts at 43379. I came back the next day and made an objection on the record. And what I pointed out was that when I listened to the--I had thought that when Mr. Goldberg at this time--this is what I indicated on the record--said, "That's enough, Dr. Lee," that what he was doing was trying to cut off the witness so there would not be testimony about presumptive testing, which would have violated the court's rule. And I thought that that's what he was doing. When I listened again the next night to the tape--because frankly, all these commentators were saying, oh, there's evidence of blood on the air conditioner.

You didn't really listen to those people, did you?

No. I listened to the tape of testimony. And when I listened to the tape of the testimony and the implication, I became concerned--

Excuse me, counsel. What page?

It's - I think it starts at 43379 and goes on to 43380.

All right. Proceed.

See where I'm beginning? It's just before we took up the issue of the Fuhrman tapes. Should I read it or is the court reading?

I'm reading it right now.

All right. I've reviewed the 43379 through 43381.

And so I think the record indicates that I immediately approached the court and I said that I was fearful that even though it wasn't explicitly stated on the record, that the Prosecution might argue that there was blood found on the air conditioning from the way the questions and answers were brought out and the way Mr. Goldberg cut him off, and I had misinterpreted Mr. Goldberg. He was cutting it off for purposes of putting this inference, which was improper in the first place because of the ruling on presumptive tests in the record, instead of trying to cut Dr. Lee off before he got into an area that was improper. And, in fact, as I indicated in the record, that Dr. Lee was about to say that presumptive tests on sink traps, metal surfaces like air conditioners, doorknobs and on that kind will always give false positives because of the nature of the metal surface and the bacteria, et cetera, which he was about to testify to, and they knew it because in interviews with Dr. Lee, that's what he had said. In any event--well, I won't--that's what Dr. Lee told me, and I offered to bring in an affidavit to that effect.

And then the court indicated as I put that objection on the record and it was clear and I thought in effect, the court had ruled on that with respect to indicating to the People that a timely objection had been made on the record and if they wanted to come forward and make this argument, they would have to present argument to the court that this was a fair inference from the evidence. I thought that's how the record stands right now. And they should, you know--and this kind of--this kind of comment, given the fact that the court had made a clear ruling in this case that presumptive tests are not proof of blood, no. 1, no. 2, that the testimony itself does not support that contention, no. 3, there was a timely objection noted on the record to the court giving the Prosecutors clear warning that if they wanted to make this argument, they'd better come in here and persuade the court it was fair comment on the record. All of that being said, it seems to me highly improper and against the rulings of this court for them now to argue that there's blood on the air conditioner, reading these questions and answers. It's not what the record states. It's not what the ruling of this court is. It's misleading to the jury, and we're entitled to a curative instruction to the effect that there is no evidence that Dr. Lee found blood on the air conditioner. Highly improper argument. Clear misconduct.

Miss Clark.

I'm going to allow Mr. Goldberg to address it since he was the one that did the questioning. But I'll remind the court the record says exactly what I read to the jury.

Thank you, your Honor. Good afternoon.

Good afternoon, Mr. Goldberg.

The issue of presumptive blood testing is one that we have addressed on a number of occasions with your Honor, and the state of record was that presumptive blood testing does not come in. We have abided by that although the Defense has not. They asked Mr. Lee questions about the walkway with respect to parallel line imprints on June the 25th that he photographed. Those were presumptively tested. There were no confirmatory tests. Dr. Lee offered the opinion that they were blood in his opinion based upon his forensic knowledge and was not specifically asked by counsel to testify that he had done blood testing, that that's how he knew. So he was basically relying on his generalized training and experience, it looks like blood; therefore, it is blood. The basis for that opinion we know outside of the record is presumptive blood test. That came in. The court allowed it in. Then with Mr. Bodziak, counsel asked again questions about Mr. Lee's presumptive blood testing and even called it that, blood testing, even though Mr. Scheck and I had had an agreement outside the record that he would not raise the subject of presumptive blood testing with Mr. Bodziak without first clearing it with the court, and he just went ahead and did it on two occasions. I put before the jury the fact that presumptive blood testing has taken place. So I don't understand all the ins and outs and the exceptions and the rights and the wrongs with respect to the court's ruling. All I know is that it seems to be when the Defense wants to establish that something's blood, they don't seem to have difficulty doing it even if the only basis for it is a presumptive blood test. And that being the case, we believed properly that we could do the same thing. Now, in this question that I asked Dr. Lee, I did not ask him about presumptive blood tests. I simply asked him:

"All right. Now, in addition to that, doctor, when you were at the Rockingham location, did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning next to Kato Kaelin's house? "Answer: Yes, sir." No question about forensic blood tests. I'm asking him based on his experience and training as a forensic serologist, a very highly regarded one, whether it appeared to be and was based upon his forensic opinion. Then I asked him: "And was that something that you believe that you thought appeared to be blood?

"Answer: I test some doorknobs, some sink traps and air conditioner. "I'm just asking you about the air conditioner . "I saw in different places period." There's no indication from the transcript that I cut him off. And I said, "That's all right, your Honor. I will move on," because I was fearful that he was going to start talking about presumptive blood testing, which he had not to heretofore. He simply told what he--what appeared to be the case and what his opinion was as a forensic expert. Now, the court has allowed police officers to come in and say something appeared to be blood or "I thought something was blood" or even something was blood, and we know California courts allow this and your Honor has allowed this in this trial. And I don't know why the world's perhaps highly--most highly regarded forensic serologist, Dr. Henry Lee, can't come in here and tell us that something based upon his experience, his training and his observations appeared to be blood. That's what this is. Now, as to good faith belief, other than that it's in the record--and Dr. Lee has never been shy about trying to qualify and explain his answers--we also have a good faith basis because we have a report in which he said the same thing, that he tested this with an orthotoluidine test, which is highly reliable, which Dr. Lee regards to be reliable, and that it got a positive. I don't believe that I ever spoke to Dr. Lee about this question in my conversations with him at all. And that--

All right. Mr. Goldberg, let me ask you this. Did he indicate that he saw something that appeared to him to be blood and then he tested it with orthotoluidine?

In where?

In his report.

In his report, there was a red stain that he tested and with an orthotoluidine test and it was--

On the air conditioner?

On the air conditioner and it was positive for blood. So that was the good faith basis for my question. Now, on the--as to materials that are starting on 4338--excuse me--79 of the transcript, I was unaware of this, that this conversation even took place because I was not in court during it and was not aware until counsel made this argument during Miss Clark's argument. I know how your Honor has conducted this case and I know based upon the experience that I've had in this court that your Honor would not have ruled on an issue like this without my being here, and you did not rule because this was my area, it was my witness, I knew this testimony and I would be the person who was prepared to deal with it. Now, on 43381, your Honor says basically--well, Mr. Scheck says on 43380, lines 27 through 28: "I just want to make clear that we have an objection to that," and then your Honor says, "All right." And then on 43381, lines 13 through 14, your Honor says: "This is a comment for the purposes of making a timely objection I take it then? "Answer by Mr. Scheck: Right. "The Court: All right. Let's launch into the McKinny matter." Then you continue on with the 402 hearing on McKinny. So there is no ruling whatsoever on--with respect to this issue. If counsel wanted to make a motion to strike, I suppose that could have been done. We closed evidence. We have introduced all of our exhibits. Miss Clark is arguing about something that is in the record. She read it verbatim. She is entitled to do this under the court's rulings and I do not see any basis whatsoever to prevent Miss Clark from continuing on this line very briefly of argument. It's an important point because it's directly contradictory to what Mr. Cochran represented to this jury and that she should be allowed to proceed on this issue.

May I respond, your Honor? First of all, it would seem to me that there's a clear question of waiver as to the whole argument he just made now for a very simple reason. I came forward and put this objection on the record the next day, indicating that it would not be Dr. Lee's testimony that that was blood because of false positives from testing sink traps, drains, et cetera, and that would have been his answer to the question and the record is ambiguous and misleading with respect to that because he cut off the answer. So I put them on notice. It is not an excuse that can be tolerated at law, that somebody sitting at this table the very next day after Dr. Lee got off the witness stand didn't go upstairs and tell Mr. Goldberg that this was said so he could come back down and we could settle the record on this issue and it could be clear what could be offered in closing argument and what couldn't be. That is not an excuse. Lack of continuity in the District Attorney's office or the fact that nobody will call him up so he can come down and argue this as though the rest of them are incapable or don't understand this issue is not an answer.

It's clearly waived. It is clearly waived. And what is particularly nefarious is that all of a sudden, this issue arises during rebuttal. This is planned, your Honor. It was exactly what I objected to. It is an unfair inference from the evidence. It is not supported by the record even if the questions and answers--and it violates the clear instruction that we were all operating under here. It is in bad faith because I indicated that would not be the answer that Dr. Lee gave to the question. And it is quite different to be saying that certain points in time, I look at a stain and I say, you know, black imprints could be consistent with blood, and they can certainly make objections and settle the record at that point. I made my objection. I made it clear. The ruling was clear. It is outrageous for them to be arguing that this is blood on the air conditioner from this part of the transcript. When the record was made, their opportunity to correct it was there. They have to come into this court, and it's just outrageous.

All right. Thank you, counsel. The question was to Dr. Lee, did he see anything that in his opinion was consistent with or appeared to be blood in the area of the air conditioning unit near Kato Kaelin's bedroom, and the answer was yes, and then the question later was focused back on the air conditioner and the answer was, "I saw in different places," and that's the state of the record. The--there is no mention of presumptive testing that was done, although Dr. Lee's answer does say, "I test some doorknobs, some sink traps and air conditioner," and I accept the representations of counsel what was done was the orthotoluidine tests. The fact that Dr. Lee--Dr. Lee I think is competent to say, "I saw something that appeared to me to be consistent with blood." The problem is that it was not confirmed. I am going to direct counsel to move on from that topic.

All right.

All right. Let's have the jury, please.