All right. The issue here is as to the Purdy/aaronson issues, that of Brady, and the Prosecution's obligation to make information that is potentially exculpatory or that is exculpatory available to the Defense for analysis. On the basis of the declaration by Miss Coleman, it appears to the court that there were some legitimate concerns raised with regards to Detective Fuhrman at that time and that it was the appropriate course of action for the District Attorney's office to approach the court, to advise the court of that information under our discovery statues, and then to relay to the court that same information after the Internal Affairs investigation had been conducted. This court, on the basis of the Internal Affairs investigation, ordered the disclosure of the statements to Internal Affairs made by, amongst others, Lucienne Coleman, and that disclosure was ordered on March the 8th of this year. I find that the disclosure by the District Attorney's office to the court was done in a timely manner and in accordance with their Brady obligations. Secondly, the information that was given to the Defense at that time was sufficient to allow them to make inquiry into all of the issues that have been raised so far this morning. Specifically, the court refers to paragraph 17 of Miss Coleman's affidavit which indicates that the above information that is contained in this affidavit was all at that time available to the Defense as of April the 17, 1995, that the information regarding Purdy, regarding any diary that he might have kept, any of that information, all of that information was then available to the Defense. So I find no Brady violation with regards to the conduct of the District Attorney's office in this matter. I'm going to order the District Attorney's office to conduct a promise search cross-referencing Fuhrman and Purdy and to deliver that information forthwith to the court. That is a computer search that should be able to be accomplished within one hour. As to the desire for the court to order the production of officer Purdy's personnel file, the obligations under Brady are consistent with the pitchess discovery scheme. As such, it is a discovery device, and if there is Brady material, it will be disclosed; however, this court must abide by the legislature's determination that this is the process and procedure. This information regarding Purdy and this--this information regarding Purdy from Miss Coleman was available for what appears to be the last almost five months, so the court will not take any further action, pending the filing of an appropriate pitchess motion, as to Detective Purdy. The court will entertain a motion to shorten time. All right. Any other Brady issues we need to discuss?
We believe, your Honor, that the testimony yesterday of the other--this week of Mr. Rokahr is extremely significant. It is significant because it establishes that the picture of Detective Fuhrman pointing at the glove occurred at night, not at 7:00 in the morning or about an hour and a half after daybreak. More significantly, it puts Detective Fuhrman in an area by the evidence at a time when he is unsupervised or unobserved, I should say, by others, and it is in complete contradiction not only with his testimony, but an apparent contradiction with the testimony of other officers. The pictures speak for themselves and are extremely powerful evidence.
Now, the problem that we've had in this case, as the court is well aware, is that we have been requesting, A, a photo log or a listing of the order and/or time that pictures were taken, or B, an opportunity--or contact sheets, or C, an opportunity to make contact sheets to the negatives. This was pursued in discovery in pretrial and it was pursued during the trial. Now, Miss Clark got up here yesterday and said that she was able to look at the photographs and see numbers on the face of the photograph and she herself had put together a stack of the photographs in order so that she knew the sequence. Well, that is something that Dr. Lee, Dr. Wolf, Dr. Baden, myself, the other lawyers on this team, could not do for a number of reasons. No. 1, there are different photographs--photographers in this case and the numbers--there were more than one, for example, picture no. 35. No. 2, as the court noted and Mr. Rokahr noted in some of these pictures, the--you can't see the number. And most important of all, your Honor, as the court noted itself yesterday, the best proof, the real proof as to what pictures were taken in what order are the numbers on the Kodak print. That is the real proof. That is the hard-core proof.
The frame number on the negatives. Now, the problem I have, and I mentioned it to Mr. Hodgman yesterday, is that Mr. Hodgman is the lawyer and then later Mr. Yochelson, who was designated to be dealing with discovery for the Defense. And this court is aware, and Mr. Hodgman has conceded candidly with this court, that they had no photo logs, they had no ordering of pictures, that they did not believe, until we discovered this contact sheet from Bodziak, that these contact sheets could be made from the negatives, that there was no ordering. I am very, very troubled by the fact that Miss Clark is telling this court yesterday that she had a list of photographs and an ordering. Well, if she had it and they were determined--they had determined--she had determined through conversations with photographers or detectives on this case, that she knew which pictures were taken in which order, then we are being misled because we are only dealing with Mr. Hodgman and Mr. Yochelson who know of no information in the District Attorney's office or in law enforcement that contain an ordering of the photographs.
And again, this goes back to the Begley case. We were asking for a photo log or any ordering of the sequence of pictures. We were told there was none. We were told there was no ordering of the pictures and we were seeking the contact sheets, which once again, your Honor, is the best evidence, the only true evidence of what the sequence of pictures are because of the Kodak number, as the court noted itself. And we were continually told that this couldn't be done, this was not available, and we had to sit on the record as it stood, and this is very troubling because we were impeded, all our experts were impeded, and we made repeated requests for it, from figuring out the order of pictures. Now, as the court I'm sure is aware, that when Detective Lange and other detectives were on the stand there were questions of them on cross-examination, they were even shown Mr. Rokahr's earlier statements about his recollections of pictures being taken and when they were taken. We could not, until we got the contact prints finally, which only came about because agent Bodziak requested that the negatives for some of these to be made, and when we saw that that was possible, we then requested that it be done and the court so ordered it. When we got this late in the game, we were then able to interview Mr. Rokahr, establish that these pictures were taken at night, and come up with very significant exculpatory information. We are--this is a discovery violation, particularly if it is true that Miss Clark knew the orders of these pictures. I would note that she also mentioned in passing--well, that is really the point. We were misled on this point and we are entitled to an instruction, as outlined in the sanctions motion, that we were deprived of this material and an opportunity to get the contact sheets in the best proof of what pictures were taken in what order, until this date, and we think that that is an inference that we are entitled to, because this was a--I think the requested sanction that we outlined in that letter is strictly factual. There is another detail that is outlined there, umm, and Mr. Hodgman and Mr. Yochelson were going to try to get it, but I asked them as early as the first day last week, I think it was, umm, Wednesday or Thursday of last week, I can't recall which, when we first saw the Bodziak contact sheet, we asked how long the Prosecution had been in possession of that. And they were unable to get the date because that had come to Mr. Goldberg. Do we have the date on that? Do we know?
Well, now I'm told it is within a week or two of Dr. Lee's testimony, but our point is--
Before. It should be before, but there should be some transmittal record that gives a date. I left--in the sanction motion that date is blank, but the point is that we have been asking for this all along, and once they got a contact sheet, that is not impeachment material, that is something we have been requesting from the beginning. Because it had obvious and crucial evidentiary significance.
Rokahr's testimony is highly exculpatory. We should have had that in our possession so we could have confronted all the witnesses at the time they testified at this trial and cross-examined them about it and pursued exactly where all these detectives were at what time between the Bundy and Rockingham locations. Because the state of the record now I think is devastating to Detective Fuhrman's credibility and calls into question all the other officers' testimony. In addition, we think we have a right, and we have requested this in our Brady motion, and it relates to these contact sheets, to the investigation by the Los Angeles Police Department that Chief Williams has talked about where they said they interviewed everybody and they determined that Detective Fuhrman couldn't have possibly transported a glove from Bundy to Rockingham because they had interviewed everybody and they pursued all leads and conducted a complete investigation. Well, how can you conduct such an investigation without reviewing the contact sheets and the photographs and determining when these pictures were taken and the order in which they were taken? And we would like to see that report which purports to say that Detective Fuhrman couldn't have had access to that glove, because we think now in light of the Rokahr testimony it calls all of that into question.
Thank you very much, your Honor. Your Honor, I think the critical issue here is did the Defense have what the People have had and did they have it at roughly about the same time? Mr. Scheck's chronology of the contact sheets is a little bit incomplete. We've talked about this informally, but let me advise the court of the more complete state of affairs with regard to the contact sheets. It is indeed true that early on in the discovery process the Defense inquired about a contact sheet. We didn't have a contact sheet. The Prosecution did not have a contact sheet. We so advised the Defense. We did, however, in order to ensure that the Defense had all photographs, make our photo volume, if you will, available to the Defense and those photo volumes did have some sort of rough order and that was based on something that we observed in the photos and that the Defense had in their photos, that is down in the lower right-hand corner there is sort of a little number imprinted in orange.
Okay. I didn't know that. Umm, but which was in our photos from which we deprived some sense of order and which the Defense had as well. In addition, we displayed all the photos to the Defense early on, probably a year ago at this point, to the Defense with our--our little photo albums, if you will, of the photos in order, but we did not have contact sheets. In fact, the truth of the matter is the People did not have their own contact sheets until after the Defense did, and that portion of the story goes like this: The Defense requested an opportunity to view some photographs that had been utilized in connection with Dr. Lee's testimony and Mr. Yochelson and I procured those photographs which were in a big box that had been sent out by Mr. Bodziak to Mr. Goldberg somewhere we know a week, possibly two, in advance of Dr. Lee's testimony in order to prepare for lee's testimony. Primarily they were photographs which had been enlarged. There were a couple that were magnetized. And contained within that box was a large proof sheet which appeared to have a number of negative strips in some sort of order. Now, we find out from Mr. Bodziak that these were strips that were selected by him and placed on that sheet and that these are not a true contact sheet. These were simply a series of photos that Mr. Bodziak found of aid to him.
What is 1366? Is this an enlarged contact sheet or is this a--actually a proof sheet. Let's ask the photographers. What do we call something--I think it is a proof sheet--if it is in order, same size as a negative?
That would be an enlarged contact sheet. The contact sheet would be the size of the negative which is one-by-one-and-a-half.
Very good. Now we know that it is a contact sheet. What the court has, I believe, is something that was created last Friday, with the aid of the Prosecution, wherein we worked out an arrangement with the Defense where an investigator of ours would go with all the negatives to the lab of their choice.
Excuse me, Mr. Hodgman. I just wanted to make sure. 1366 then is not the Bodziak contact sheet; it is something that was prepared and produced--
And with regard to that, that was created last Friday and we infer from that process that the Defense hasn't given us the products of that effort that they created their own actual contact sheets with photos in order. The People did not have that over the weekend. I directed the LAPD photo lab to prepare an actual contact sheet so that we did have something with all the photos in order as best as we can determine. That was prepared on Tuesday. I had a set made for the Defense and we have turned that over by way of discovery, so truth be known, the Defense actually had their own contact sheet with photos in order before the People did.
Mr. Hodgman, shouldn't I be troubled by the fact that this request for either a photo log or a contact sheet was made ages ago?
Well, it was a discovery request, and at the time, if the court will recall, it was in the midst of many, many, many discovery requests.
Well, had the Defense come to us and simply asked can't we work this out, I think the People would have seen the value in that, would have appreciated getting them, too. It never arose to that level until we opened Mr. Bodziak's box and then very promptly thereafter we obtained the contact sheets for the Defense. The contact sheets never existed. They were never prepared until Tuesday of this week, at least on the Prosecution side.
But since their request was specifically for a contact sheet previously that we discussed, I mean, wasn't it incumbent upon the Prosecution to at least see if that was available?
Honestly, had they made a request, and they could have come before the court, we could have had a direction to do that. The problem is, it did not exist. It wasn't made. A contact sheet was not prepared until just this last week.
But contact sheets are something that have routinely made by photographers, especially photographers who take hundreds of frames. They don't want to print each one just to look at it and see which one they want to enlarge. I mean, it is done to conserve materials, it is done to conserve time. It is something any professional photo lab, which I assume the LAPD lab would qualify as a professional photo lab, would be able to produce with no problem whatsoever.
With regard to that, your Honor, the People are under no obligation to create evidence. We did not have a contact sheet. We did not have a contact sheet until actually after the Defense had a contact sheet. If the order of photographs were of such paramount importance that it had risen to that level, they know me, we could have done something about that. It never rose to that level until just recently, and with regard to that, again, it was--
The first time it became--it arose to this level of attention, would be Mr. Scheck, Mr. Blasier and Mr. Neufeld and Mr. Yochelson and I went through a box of Mr. Bodziak's photos, approximately a week ago Thursday, because it was Friday--almost immediately we arranged for you guys to make the negative sheet; isn't that right?
Yes, your Honor. Just to supplement our argument, we have the Defense photo books and I think the court should take a look for itself at the photos with that little number which the court correctly identified in the lower right-hand corner, so they had some idea of the semblance of order.
I'm saying we do not have an obligation to create evidence, and I'm saying when it did arise to a level of such interest for the Defense, we reacted. We facilitated them going to a private lab, obtaining their own proof sheets. We showed what Mr. Bodziak had sent out. And then in addition, because as of Tuesday the People did not have their own contact sheet, when we came into possession of a contact sheet, we provided it to the Defense. The contact sheet did not exist until Friday of last week when the Defense created their own in a manner that we facilitated, but we even had our own contact sheet. We when got the evidence, we gave it to the Defense.
Your Honor, there are at least two photographers who took photos on June 13th, and when you look at these sets of photos, there are numbers that are the same. In other words, there will be a 14 or a 35 in those little dots--those little numbers across the face of the photo that are the same from two different--and some of these numbers don't show up at all. So Mr. Hodgman is saying that, well, there is a rough order, but we found this extremely confusing and a number of times asked, I'm sure he forgot that, and in fact in previous representations about this issue to the court acknowledged that several months ago Mr. Neufeld specifically came to Mr. Hodgman and again renewed this request for the contact sheets and an ordering of the pictures. And I think as Mr. Hodgman will concede, he said at that time, and it has been the People's position, that they did not have any and could not make any available. Now, that is what we think is the problem.
And we--when he indicated that they did not have any available, we asked for access to the negatives and he indicated that that couldn't be done. Now, what did happen last week, after we saw the Bodziak sheet and we realized that it could be done or at least they would agree to have it done, is that we went over to the lab and Mr. Neufeld was there with a representative of the District Attorney's office and so they were there when the sheet before you was created.
1366. Our point is this: There may be a left hand not knowing what the right hand is doing problem in the District Attorney's office. It may well be that Miss Clark knew the order of all these photographs from her precise investigation in looking at the numbers, but we certainly never did, and we complained about it long and loud and a number of times to those assistants that were in charge of discovery. And we were told it is not available, can't be made available. There are no negatives available to make, this can't be done. And as Mr. Hodgman just said, they took the position that they did not have an obligation to create new evidence or new contact sheets and they had no photo log or ordering. Now, what this did for the entire case is put us at a severe disadvantage because we couldn't figure out sequence in--with--in a hard definite way, and the only way that you could do as a lawyer what we did with Mr. Rokahr, this week, was get those Kodak numbers, take those sheets, lead him through it step-by-step in order to firmly, irrefutably document that that picture was taken at night.
You can't do it any other way. And we were trying to do it and we should have been--we were entitled to this. It was easily available. And I don't think they can stand on the ceremony of saying, well, we couldn't make it, we didn't make it, it wasn't available to us, we have no obligation to produce it. We say they had an obligation to produce it and they liked it just fine that we couldn't firmly establish the sequence of pictures and that the crime scene photos--as the court noted, it is a basic. Dr. Lee testified, Mr. Ragle testified, our experts kept on telling us, they had never heard of a crime lab that didn't have a photo log that at least gave you the orders, if not the times, that pictures were taken. And we have been seeking that from the very beginning of this case and we have been frustrated and the jury is entitled to know that. They had an obligation to turn this over. We were being misled about it and we were not--despite specific and repeated requests for contact sheets and negatives which could have been made available or a photo log that gave us an order of pictures, the People didn't turn it over. When it finally became clear that this could be made because Bodziak did something like that and we were able to secure the negatives for purposes of a contact sheet, we came up with highly exculpatory evidence that we should have been allowed to confront officers with earlier and the jury is entitled to know that they didn't do it.
Your Honor, with the court's permission, the record is a might incomplete and I would like to take just a moment to make it complete so that the court has all the information upon which it can base its decision.
Yes. I will be less than that. First of all, with regard to whatever Miss Clark did with the photos, she made her own rough order based upon the little orange numbers in the lower right-hand corner. The same--she was under the same deficits and disadvantages as the Defense. She simply was trying to put them in some sort of order so that they made some sort of organizational sense for the People.
I'm sure the Defense attempted to do the same. I understand that they did when Mr. Cochran interviewed Mr. Rokahr I believe in this very courtroom, and appeared to have photo books based upon some sort of logical order. Secondly, at least as of last August we offered to the Defense an opportunity for them to come over and examine our photo books. Mr. McKenna came over to our offices, met with Mr. Fairtlough and the Defense photos were in such a condition that very little effort was made to put them in some sort of order based on our books at that time. We extended an invitation to Mr. McKenna to come back and finish up, based upon what we had in our photo books, and that invitation was never accepted. Mr. McKenna never came back. Thirdly, the recollection of Mr. Scheck and apparently Mr. Neufeld and myself differ in this degree. I have been consistent in saying there has been no contact sheet in the possession of the People and that is true. That is absolutely true. With regard to could it be made, that is where our recollections differ. I would have to assume there is some way that this could be done, but again, the Defense didn't appear to get very agitated about this until just very recently. That is all I have to say, your Honor.
Where our recollections differ as well, I do not personally recall any requests to make a contact sheet. I would have to assume that in the event that requests were made I would have looked into it because that is what I do every time I get a request from the Defense, so our recollections differ in that respect as well.
It is significant because it establishes that the picture of Detective Fuhrman pointing at the glove occurred at night, not at 7:00 in the morning or about an hour and a half after daybreak. More significantly, it puts Detective Fuhrman in an area by the evidence at a time when he is unsupervised or unobserved, I should say, by others, and it is in complete contradiction not only with his testimony, but an apparent contradiction with the testimony of other officers.
But this is--crime scene photos are pretty fundamental stuff, aren't they?
The People are under no obligation to create evidence. We did not have a contact sheet. We did not have a contact sheet until actually after the Defense had a contact sheet.
The only way that you could do as a lawyer what we did with Mr. Rokahr, this week, was get those Kodak numbers, take those sheets, lead him through it step-by-step in order to firmly, irrefutably document that that picture was taken at night. You can't do it any other way.
Expert testimony for free.