Your Honor, this was the series of printouts that were to portray the EAP issue where the Prosecution said that yesterday we didn't have any objection, other than those we previously argued at the time, other than that the resolution on some of these is poor, the actual photographs are all in evidence anyway, and maybe if there is some sort of admonition of some way of letting the jurors know that they can take a look at the actual photographs from the EAP runs where the resolution is significantly different, material is different on the elmo.
I have no objection of them being told that there are pictures of these if they wish to look at them. I would object to them being told the pictures are much better than the slide. The slides are there to illustrate where the relative bands are and they do that quite well.
Just fine, thank you. The court may recall there was a substantial argument over this exhibit and the court sustained objections on multiple grounds.
The objection to that item, and that again was used with multiple witnesses, is hearsay and no foundation. This was a letter to CACLD to Cellmark and the court sustained those objections at the time as well.
Your Honor, look at the transcript. Initially they objected not to--on the foundation and hearsay grounds. The court ruled that my questions for the foundation were inadequate and then you called me over to the side bar and instructed me on how to complete the foundation and I came back and completed the foundation using the questions that you suggested, and Mr. Clarke again objected and you overruled it. And if you look at page beginning at--look likes it is 257--I'm sorry--27502, 2750--27501--in fact--in fact 27502 he again renews the objection after I laid the additional foundation that the court suggested, and that is when you overruled the objection and allowed me to show the exhibit.
For purposes of clarification, that is the same as 1191-B. If that is going to be offered by him the Defense, then we have no intention of moving in 1158, but I think we need to clarify that.
It was done outside the presence of the jury, but we will move it in by stipulation if you want. That is no problem.
Taking after other bearded gentlemen around here. Every objection was sustained to that which there was no testimony about that. Mr. Sims expressed no expertise in it. You agreed that was beyond the scope of the testimony, and so while they succeeded in getting it marked, that was the extent of it, your Honor.
Cellmark's polymarker on the steering wheel? Mr. Sims looked at it, said he was familiar with it, but said he would not venture an opinion on it. It, however, is the same--the underlying polymarker that was used for the results on the steering wheel that was introduced through Robin Cotton and this is the polymarker strip that they used, so I don't know.
Mr. Clarke did not offer the strip itself. He offered the results on the results board based on their underlying data, so if they are saying there is no authentication for this, I don't see how they got half the evidence in in this case in the first place. I don't understand how he can sit up here and object to the polymarker strip that they gave us that is the basis of one of their results.
The problem is we've got an exhibit in the testimony but the exhibit indicates an inadequate foundation.
That is not accurate. What it states is, is that he says he is familiar with this as the polymarker strip from the steering wheel. He then goes to say that he does not want to draw any judgments from it because he doesn't feel sufficiently expert with the polymarker. That is difference from it coming into evidence. He is objecting on lack of authentication to an exhibit he put in. This is frivolous.
To answer the question that you asked him that he never answered, the strips were not in evidence, they were never shown to anybody in front of this jury in this case, and I have never objected on the basis of no authentication. So I objected. And the transcript is clear, he never answered any question. You sustained objections that it was beyond the scope of his direct examination. So while it is great to mark things and while it is true that is in fact Cellmark's strip, we do have rules, they are called the California evidence code, which dictate what the jury can see and in what form they can see it in, and it is simply us asking you to apply the rules.
That is not--Mr. Harmon is not stating accurately. The court can look itself at the transcript at page 28683. Mr. Sims said he was familiar with this strip. Then when he indicated that he didn't feel competent to make an opinion about the strip, objections were sustained to my going any further with it. Now, that is different as to whether he has conceded I showed him this, he said yes, that's the strip.
I'm not sure it is a big deal, but the point is as a legal basis it is admissible. As to striking any further testimony, he said that--in terms of his ability to read polymarker strips, well, that is another thing. That has already been done.
Your Honor, with respect to 1183 and 1184--1183--and we can check this. I think this is the same thing you just dealt with on 1154 and 1155. These are the California association of crime lab director's report and the Cellmark letter in regard to the blind trials. 1184 I believe is the Thompson article about the CACLD study and we withdraw 1184.
Yes. 1183 isn't in the exhibit that was shown to Dr. Cotton is in, and if you look at the testimony of Collin Yamauchi, he was asked if he had seen that and he said no, and so 1183, as it exists, should not be admitted in this case.
I think what we ought to do, as we have done before, is cross-reference them so that the jury knows--the whole point of it is that he didn't know about it and we are talking about the same set of documents; that is, the report from the California association of crime lab directors and the Cellmark letter, our point concerning there are false positive errors.
All right. What we will do is cross-reference this. Okay. 1191-B which I think is a duplicate of 1158, if I'm not mistaken. This is the Fung and Mazzola D1S80--
Mr. Clarke says he has looked at it, and subject to his representations and checking, we have no objections to 1191-A--well, 1191-A and B are supposed to be, if you put them together, the D1S80, DQ-Alpha and polymarker genotypes for Fung and Mazzola, right?
All right. Mr. Clarke, Mr. Harmon, what is your status on these--actually 1191 and 1192--excuse me--1191-A and B?
All right. All right. The record should reflect that exhibit 1195 has been withdrawn. Exhibit 1197, 98, 99, 1200 and 1201 likewise have been withdrawn.
And the only objection is to the material other than was--what was used with the witness regarding the 1.2 mixtures.
On 1215, the amplitype users guide, there is no objection to the paragraph that was used; however, there is an objection to the extraneous material.
It is not a paragraph, though; it is actually a couple of pages that deal with it and certainly that it only deals with the mixture in the 1.2, then we will limit it.
Your Honor, I'm sorry, your Honor, do you also have our--do you also have our note that we withdrew certain exhibits from yesterday? Informally we withdrew certain exhibits about Bruce Weir. You have already so indicated?
Right. The objection is that there is no relevance to it. That was a--a system of classification of hairs and fibers not used by Mr. Deedrick, nor was it shown that it was used by any witness or expert for the Defense. It is a system of classification of characteristics that assigns numerical value or--assigns a number to each of the various characteristics for the purpose of attempting to categorize, but there was no foundation laid to establish that it is an accepted procedure in the scientific community at all. In fact to the contrary, Mr. Deedrick rejected it.
Well, he did testify that he remembered reading and he disagreed with the numbering system, that is accurate, but he agreed that the list of characteristics that he described on there are the characteristics that he looked at. I would submit it on that.
I agree was, but yesterday they didn't put it on their list. I am happy to deal with it.
That was irrelevant. That was a worksheet marked by Susan Brockbank, but did not involve any of the evidence that she testified to.
It was an example of the worksheet that they used to clarify hairs. That is what it was intended for. I agree, there was not any hair that was used in this case. That was why I introduced it, as an example of how they classify hairs. There was no objection to it at the time. She authenticated this is the form we use.
All right. The objection is overruled. All right. 1221. 1221 indicates that it is one page. It appears to have two pages.
All right. You will withdraw the objection subject to the cutting off of the bottom?
1221. And I will staple the two parts together so they don't get lost. All right. 1222, FBI hair identified.
May I interject, your Honor? Defense 1227, Mr. Darden wanted to interpose an objection on that photograph.
--the night before. We would object on the same grounds as earlier this morning with regard to 1003. The Defendant posing for a photograph in our opinion has no probative value. It is misleading to the jury.
All right. The objection is overruled. All right. 1233. We might as well take up 1233 and 1234 at the same time.
Your Honor, I have a discrepancy here. I interposed an objection to 1233. That was described to me as an article on the selection of non-correlated thin layer chromatography, chromatographic solvents.
No, 1233 is the printout of Ellen Aaronson's route from apartment to the Mezzaluna restaurant and 1234 being the route back.
Your Honor, then we've skipped a couple of objections I needed to have on the Deedrick exhibits because they were misnumbered in my version 1223 and 1224. I had objections to them. They were misnumbered in my--
Okay. Well, let me do this. Since I've got these out, 1233 and 1234, do you have any objections to these?
Is the entitled "The selection of non-correlated thin layer chromatographic solvents"?
There would be an objection to that, your Honor, as being hearsay, irrelevant. There was no foundation. It was an article shown to Mr. Deedrick that he did not, I believe, demonstrate familiarity with. There was no adoption of it, there was no reliance on it, nor was it even impeaching.
With respect to--should I put it on the elmo so I can talk to you and we can see it at the same time?
First of all, with respect to all of these slides, they are argumentative. They should not be admitted as evidence. If they wanted to use them as argument boards, I think that would be fine. Secondly, with respect to the gloves, the gloves board in particular--board or slide in particular is incorrect. It said that there is no hair consistent with O.J. Simpson on the Rockingham glove. That is incorrect. There was--there is a black limb hair that would be consistent with Mr. Simpson. That is consistent with Mr. Simpson, rather, in the testimony of Doug Deedrick.
All right. So the only factual inaccuracy, as far as the record is concerned, is one of the slides? The Rockingham glove slide?
No, it is--it is all on one slide. The slide is entitled "Both gloves" and it is incorrect with respect to the assertion on the Rockingham glove.
I think we went through this when this was shown. I believe the testimony was had they don't classify limb hairs and certainly this--you know, they can say it is Negroid, but that is all, and I don't believe that he testified that as with the other hairs with other characteristics that he is willing to make any kind of assessment on this one. But we went through this at the time this was shown and introduced.
No, he didn't--there is a distinction between how definitive he could be in his conclusion with respect to limb hairs versus head hairs because head hairs have more characteristics, but it is correct that the limb hair found inside the Rockingham glove is consistent with limb hairs of--with--with having come from Mr. Simpson, so this is a misleading assertion on this slide.
I don't think he ever said that, and I know this was discussed by Mr. Bailey, because I think the issue came up at the time that we used that, and I believe there was even a bench conference about it where the court allowed it on the basis that they don't classify limb hairs even though they can tell the race. That is not the same as head hairs where they have a lot of other characteristics to look at. That is my recollection.
I don't remember what the bench conference was, your Honor. I just know that given the witness' testimony that the limb hair in the Rockingham glove could have come from Mr. Simpson, in view of that testimony it is misleading to say no hair consistent with him.
We would like to look it up, too. I'm almost positive this has been covered. Pass on this one?
Well, we've got the reference to the number, but I'm not sure that is what we are looking for. I can find it.
Thank you, your Honor. It is offered to rebut a claim of recent fabrication and it also has sufficient guarantee of trustworthiness. I believe, although I'm not certain, this was offered on redirect after there had been a spirited cross-examination about some of the times, the confusions about the hours on the Mezzaluna clock, whether or not she had recalled accurately what times she had left and the substance of a--a subsequent conversation with the detective when she sought to correct misinformation she had been given earlier. So I think for these reasons it is admissible.
Well, my list of exhibits that I have in front of me doesn't show it, but was her initial police report admitted in the statement she gave on June 15th?
Oh, yes, it was marked by the People. The point being, your Honor, that this would not admissible under that theory unless the People had marked and admitted her initial statement as a prior inconsistent statement.
No. I think that if you attack somebody's testimony at trial, then the offering party can bring in a prior consistent statement.
But it doesn't qualify as a prior consistent statement because it wasn't previous to the inconsistent statement.
It was--it sounded confusing to me, but she made a prior inconsistent statement on June 15th. That was her initial statement. She then changed it after the preliminary hearing on July the 8th. So that--and that was the statement that was consistent with her testimony at trial. It doesn't qualify. It is not prior in time to the inconsistent statement.
It is consistent with what she said on direct. She was impeached on cross-examination and she offered her prior consistent statement to what she said on direct.
That doesn't satisfy 1235 or 770, your Honor. That doesn't meet the--that doesn't meet the requirements. It has got to be prior in time to the inconsistency.
All right. 1236 of the evidence code says: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his or her testimony at the hearing and is offered in compliance with section 791." And Miss Clark, just so you can cross-reference your own words, the prior statement that was put in by the People as People's exhibit 495 is the June 15th statement of Miss Aaronson, so there are--so under 1236 and 791 I'm going to overrule your objections. Okay.
Your Honor, can we go back to 1224? I found the page in the transcript where that was all discussed.
Your Honor, again, September 12th, that statement doesn't qualify under 791. I mean, it is the same problem. The evidence of a statement made that is inconsistent that has been admitted, the prior consistent statement has to be--it has to have been made before the alleged inconsistent statement, which was on June the 15th, which obviously it was not. Secondly, before the motive to fabricate has arisen, and the People's position clearly is that this was a groupie who wanted to get herself injected in the trial and that motive existed at the time that she was--at the time that she recontacted Detective Kilcoyne and realized it was going to be a very high-profile case which was on July 8th and she began to restructure her testimony to make sure that it would be relevant. That is the motive. Now, September 12th certainly is not prior to that time, nor is it prior to the June 15th prior inconsistent statement. And the People submit that it does not qualify under 791.
One, your Honor, certainly I think it is very relevant because it helps to explain why Miss Pilnak was certain that various acts occurred at different times. I think that it is in fact a bill from the phone company. We have been introducing these sorts of documents by stipulation in other forms. I don't think that there is any sincere challenge to the authenticity of the bill. I think it offers sufficient guarantees of trustworthiness for its admissibility. But she was--as you recall, she was very exact in recounting what events occurred at certain times, when she called her mother, when Miss Telander had left, and that bill corroborated the specificity with which she offered her testimony.
That objection--well, that document, your Honor, was offered to demonstrate Mr. Heidstra's state of mind that when there was an occasion where he and other witnesses could recount and go through various observations from June the 13th, that this was in fact his state of mind, not to discuss with other potential witnesses. It reinforced our claim that he was not biased, that he was not polluted by the presence or potential testimony of others. Particularly with Mr. Heidstra that has become a very real challenge. I will simply remind the court that four of the eight names we were given as rebuttal witness were witnesses seeking to rebut Mr. Heidstra. His credibility, his bias, if any, are therefore raising or rising themselves in importance, at least to the People's version of the evidence, and this supports or attacks any suggestion that when we try to gather people together to go over certain steps and observations that there was no polluting.
Your Honor, it is not relevant for that purpose. It is a letter from Mr. Bailey to Mr. Heidstra. I don't know how that impacts on--that illuminates us as to Mr. Heidstra's state of mind or his credibility at all.
We have to add 1241, your Honor. It was inadvertently left off of our list. It is a two-page statement of Mr. Heidstra.
It is on my list, your Honor, and I will offer the same comments and adopt those comments that I offered as respect to Miss Aaronson. Again, Mr. Heidstra's credibility will be viciously attacked, strongly attacked--I don't want to characterize it--and this is a prior consistent statement offered to rebut a claim of recent fabrication that he is fabricating at this hearing when he testified as he did.
Well, I can assure the court that Mr. Heidstra's credibility will not be attacked viciously. In fact, we think Mr. Heidstra's testimony is very helpful to the Prosecution and in fact what we intend to do is buttress Mr. Heidstra's testimony. Still, however, it is--it is hearsay, it is an out-of-court statement. It was alluded to somewhat during the trial. That is what he said previously and he testified on the stand to what he has stated previously. The detectives have not been called into court to testify to the accuracy of the statement, to--it has not been authenticated by any official police official. It is hearsay and it is being offered for the truth of the matter stated.
I'm a little curious as to the comment that there will be witnesses offered to corroborate his testimony, because that is not my understanding of the proper purpose for rebuttal. I think they were being offered to rebut his testimony, but we will take that up later in our next motion. But I certainly think that, your Honor, this is being offered to rebut a claim of recent fabrication that he might have had some motive or bias in favor of Mr.--
I understand that, but the objection that Mr. Darden made, though, is foundation because this was a statement taken by Detective Payne and Detective Parker, neither of which testified.
Your Honor, I believe--and I don't have a specific recollection of where this exhibit was discussed--I believe Mr. Heidstra was asked about it, he then agreed that the statements that contained in that statement were accurate and that it accurately reflected what he had told them on that day.
I'm not sure that allowing this statement in would be consistent with the court's earlier ruling on the Aaronson statement.
This is Mr. Thompson, your Honor, the tall gentleman who put the handcuffs on Mr. Simpson. He testified and authenticated the accuracy of what was depicted there.
All the videos have been subject to redaction to that extent that they were shown before the jury.
I know there is a one-attorney rule, but there was an issue I think of the sound. There was sound in that video which was not aired for the jury, so--
Then we can do what we did with the Mazzola demonstration video and have a little post-it put on there that it should be played without sound.
All right. Only the portion that was displayed for the jury and without sound as to both 1250 and 1251.
Your Honor, as to the those--those videos at Rockingham, there was no videographer called.
I know. I asked if Mr. Thompson was the videographer and my recollection was refreshed by Mr. Douglas' comment that was Officer Thompson--
The objection, your Honor, is hearsay and lack of foundation. He only filled out a small portion of that. The balance was filled out by other witnesses who were never questioned about it or able to authenticate it.
I think, your Honor, is that this is in fact a business record. It certainly carries sufficient guarantees of trustworthiness. I don't think that the People are suggesting that it is inaccurate or that it is misleading, because it is a document that was used for the purposes of the testimony. Mr. Meraz did in fact identify those portions of the form in his penmanship and those portions which were not. Submit the matter on that.
The foundation was not laid for a business record at all, your Honor, and it was incapable of being played because they didn't have--they never called the appropriate witness to do so. And I would not vouch for much of the--for some of the writing on it because it was made by people at Viertel's, and based on what may have been misunderstanding between them and police officers, so, no, absolutely no, I don't concede at all that it is trustworthy or reliable, and there is no adequate foundation laid with the appropriate witness to have it admitted.
I recall the top half and I believe there was something toward the bottom. If I could see the form to refresh my recollection.
Your Honor, while Mr. Douglas is looking at it, if it will assist the court for the Heidstra--statements for Heidstra, I have looked at the strips and if you look at page--
That is where I wrote down the numbers. If it would assist the court, starting at page 36438 and then going to page 36446, the entire statement is read into the record during the course of questioning Mr. Heidstra and he adopts it and it is read in with quotation marks.
I would point out to the court there are many different handwritings on this document.
Your Honor, maybe we could go back to the transcripts. My recollection is, is that his testimony was that this is a document that is filled out in the regular course of business through Viertel's and the police department, that when he received the document he had seen Detective Haro fill out a number of the entries here. He then signed in the middle line where it says "Garage employees" and I think he then put down the license plate number and reviewed the rest of this material. So we are offering it as a business record with a proper foundation there, and when we get to the transcript, we can--I know that he specifically testified as to which parts he filled out, but he adopted the rest of it.
He can't adopt the rest of it, your Honor. He can't vouch for someone else's writing on that form or the veracity or the trustworthiness of it. And they did not even attempt to lay an appropriate foundation it is admissibility.
Page 38260, your Honor, and it would also be offered as an alternative to reflect Mr. Meraz' state of mind that there was no hold then preventing or requiring that the vehicle be placed in a particular area, a secure area, and that--
Aren't we really quibbling over something that is of little moment? The issue being he testified he didn't see blood and he didn't think it was being held in a secure area. I mean, that is really the import of his testimony.
KEY QUOTEThe other basis for admitting this that Mr. Douglas referred to has to do with the direct examination of Detective Mulldorfer at 38259 where she indicates that she conducted an investigation, interviewed the principle parties and determined that this was the form that was filled out. And even then went into detail as to who signed what and she authenticates this as an official business record of the garage and talks about the rules--and I put her on--the rule with respect to what parts of this are supposed to be filled out and for what purposes.
We think that Detective Phillips' testimony and the citation to the pages we told you would be sufficient foundation and she described at length what this impound form means.
It starts on page 38259 and I think she certainly is a proper witness. It was her assignment--
I think that the foundation was that she testified that she was assigned in the city attorney's office to investigate these garages.
That she was familiar with their rules and procedures and she also proffered a series of lists talking about rules and procedures.
She authenticated this form and others and found Viertel's in violation, so I think her testimony lays a sufficient foundation.
Your Honor, she is not the proper witness for that form. She is not the one who uses it. She is not the one who filled it out. You need to call somebody to lay a business record foundation to establish that they are familiar with the form, the manner which it is filled out and establish its trustworthiness and she can't do that. She may recognize the form, but she is not familiar with the manner in which it is filled in and who has to fill it in and the people who are under a duty to do so. And the problem with this particular document is there are a number of people who put in information on that form. At the very least, if the court is going to admit it, then the form should be redacted to include only that part that Meraz wrote on, if they want to use it for that purpose to corroborate his testimony, but the part that is filled in by others who are under different duties than Meraz should not be admitted because that cannot be vouched for with the testimony that we have.
Just in passing, your Honor, just--just so the court is aware, the section that Miss Clark is concerned about is the box at the top that says "Give no special care" and I just want the court to know we will reopen our case to put this in.
--through S? The objection, your Honor, is 352. It is misleading and confusing. If the court will recall, there were a number of charts that were shown to Dr. Rieders that--the ion wars. I remember.
Yeah, the daughter wars and I still haven't figured out why they have no sons, but they have--they compared--
They compared different days on some of the charts, your Honor. There was also a confusing juxtaposition of different results obtained at different times, and the problem that we had with all of those slides was that it was misrepresentative of the actual results that were obtained. Now, given the fact that they did not do any testing to justify the manner in which they put these together, there is no reason why Agent Martz' testimony indicating the misleading nature of those slides and the juxtaposition of those results should be disregarded. The only real testimony you have concerning how the results should be viewed and in what way they should be compared with each other is Agent Martz because he was the one had operated the machine, he was the one who ran the test. Dr. Rieders did nothing but look at his charts and his graphs. And the problem is, as you recall, that Agent Martz testified that the machine--the column is very sensitive. It will run high one day and low another, and so you cannot compare results from one day to the results of another. In fact, you can't even compare results from the morning to the evening because the column is so sensitive. The results have--the tests have to be run at the same time or within minutes of each other to be valid for comparison in terms of concentration of the ions. And the problem with some--with these charts, as I recall, is that they did not do that. There were different days and different times put together in an effort to mislead and make it look as though there were discrepancies where there really weren't and there is to basis for doing that. In fact, it is very misleading and confusing to the jury.
KEY QUOTEWell, I think Miss Clark is talking about other slides. 1257 was the first set of slides that just illustrates what the process of chromatography is and each slide was gone through with Agent Martz and there were two charts from two different days that was explained to the jury. I'm not sure which--I think she is talking about some later charts, but this was all gone through with the jury. Agent Martz was allowed to explain anytime he disagreed with anything. And I don't see what the problem is.
I think it is a combination of both how the mechanism works and the specific results of testing in this case by Agent Martz. I think we have both of those here.
Right. Okay. I'm looking at A, B, C, D, E, F. I think so far so good. Bob is right.
Here is the one, 1257-P. So far I've gotten through O and there is no objection. P is a problem, your Honor, and the reason it is a problem is that it assumes something that is not in evidence, that is, the location of where 206 was taken from, right? 206 and 207, no one knows exactly what area of the stain those came out of. It has never been--there was an assumption that one was taken out of a corner of the stain, corner of the cut-out area, and that 206 came out of another spot. In other words, it makes an assumption that 206 and 207 came from different areas of the stain.
And we don't know that to be true at all, so it is very misleading. In fact, they might very well have been on top of each other, right next to each other, and that is important in terms of the concentration.
That is testimony about Q206, that that was approximately where it came from. There was actually a cut on the--Q207 I would agree with Miss Clark, that we don't know where it came from to the extent that it came from the lower corner, and that was explained by Agent Martz, that I don't know if it came from that corner, but it came from that large cut-off. So I think that is all that illustrates and I think that was stated on the record.
I think Bob is correct. The problem that we have, though, is as it is depicted there it is very misleading because the jury is not going to remember how Agent Martz explained it or didn't explain it. They are going to have a big picture back there or during argument that purports to place 207 where it has never been established it was, and it is--that is an important point. It is not nitpicking because where 207 came from in relation to 206 is important in terms of the concentration of blood.
But it was all explained. I mean, that is--nothing misleading about it. They were told that we don't know exactly where it came from the cut-out. This is to illustrate that was part of the cut-out.
If--if Mr. Blasier would take out 207, just take it out of the photograph, then I wouldn't have any objection.
All right. I think what we can do is label that 207 came from somewhere in the green area.
All right. Counsel, I'm going to take our recess at this point and we will stand in recess until two o'clock.
Your Honor, just a clarification just so we know this afternoon. We have another motion on this afternoon.
Not only finish this, but we also have to finish the scope of rebuttal and we have specific discovery problems regarding that as well that must be resolved today, because as you know, they want to commence their case on Monday and they--they had really the--
Counsel, you don't need to argue it now. I am aware of all these matters we have to take up, and we will start at two o'clock, but we will finish this. All right.
All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Where were we? 1--1251-E'ish. And counsel who are here for the motion regarding access to tapes, et cetera, et cetera, I've got to finish this first. So if you want to take an hour and get a cup of coffee, be my guest. Yes. All right. Miss Clark, where were we? We had gone through P as I recollect.
That's right, your Honor. We got up to 1257-Q. And I asked for Xerox copies from Deirdre to look at over the lunch hour. Unfortunately, the Xerox copies don't tell me the date and the stuff that I need to know to identify the charts. So I thought it was a good idea at the time, but it didn't quite pan out. So if I could look at the originals again to see if I could get a little more detail unless Mr. Blasier could tell me offhand. Do you know?
Thank you, your Honor. I think if we put it on the elmo or laser, I will be able to read it and I can--
No. I do, your Honor. I can't--because it's too small and being as I can't tell which charts they are, I can't read--
Here. Let me give you my magnifying glass. No. Mr. Ormond, I gave the rest of the day off. I didn't think we would be using the--
There's no reason to think that we would. Actually, Henry Lee gave me his. I should--
You know what? If I could get the chart from Deirdre that the People marked, that will--
All right. Objection is withdrawn to 1261. 1263, a letter from the D.A.'s office to Special Agent Roger Martz with lots of writing on it.
People's objection is that it's hearsay and it's irrelevant, your Honor. I think it was offered to show bias on the part of the witness. That letter would not go to the witness' state of mind. It would go to the writer's state of mind assuming that it showed any bias, which it doesn't. It asks for the receiver of the letter to detect the presence or absence of EDTA without indicating that a particular result should be obtained.
Well, that same objection was made at 38627 of the transcript. It was overruled at that time. I don't know if there's anything new about it.
Well, I overruled its--I allowed its use for examination of that witness, but that witness was not the author of the letter.
No. That's correct. But it demonstrates what he was told, this is what we want you to do and it's relevant to his state of mind. It's not offered for the truth of the matter stated certainly.
All right. The objection will be sustained. All right. 1267, the food iron absorption article.
Right. This was the article that had been referred to by Dr. Reiders as--in his attempt to say that there had been a study that had been--a study that has been used to determine the average daily amount that--of EDTA that would be found, but he wound up having to concede that that in fact was not shown by the study at all. The study was for a different purpose and it was--what they did was they injected EDTA for the purpose of determining what would be left after certain periods of time, but that does nothing to indicate what trace amounts would be found if everyone's blood was tested for various types of EDTA. So it's very misleading. I believe the court initially had ruled that he could not bring that article out and could not be questioned about it, and then Dr. Reiders just kept talking about it basically. I mean, he wasn't even listening to my questions. So I think the court earlier ruled that it could not be used and we simply urge the court not to allow its admission. It is irrelevant, it is misleading and confusing as Agent Martz indicated as well when he had to go back and try to unravel it.
Miss Clark's confused. She's talking about 1268. 1267 is the article about the average person's maximum daily intake of EDTA in a diet would be 50 milligrams and that would lead to a certain level in the blood. But as to both of those exhibits, Agent Martz testified--in fact, he was the one that was asked if that's the article he relied on when he gave that figure of 50 milligrams a day, and he said yes, it was. 1268, the article, the absorption article that she was talking about also was testified to extensively by both Dr. Reiders and Mr. Martz. They both relied on it. They relied on it for different purposes. But it was extensively discussed, identified by both of them and relied on by both of them. They disputed what it would have showed certainly, but it doesn't detract from the fact that they both relied on it.
Well, the fact that they both relied on it though, the fact that these are both scientific articles out of scientific journals, I mean, isn't there a danger here that we're--I mean, Dr. Reiders testified, Agent Martz testified and you have exhibits that say what their testimony was. I mean, why do we need these articles?
I mean, do you seriously expect the jury to go back and read scientific journal articles?
I don't know. I would hope not, but I mean they were referred to, they were read--parts of them were read into the record. If they have any confusion about which doctor, whether Dr. Reiders was right or Agent Martz was right and what those articles said, they might want to refer to them. The fact that they probably won't I don't think is a reason not to have them admitted.
--with respect to--I'm sorry to interrupt, but with respect to 1267, that was--I just got my memory refreshed. That was the FDA listing of EDTA amounts in food, and the People withdraw their objection to that. I've just been shown the reference in transcript. But we maintain our--but Mr. Blasier is correct, 1268 is the one that we have the objection to because--and that is completely misleading. It was--Dr. Reiders attempted to use that article to buttress his position as to what--what, if any, amount should be found in people on a regular--a normal regular person on a daily basis and, in fact, it does not direct itself to that at all, which is why it's so misleading and confusing and not to mention very complicated.
All right. Not only are they confusing scientific articles. We're confused as to which one is which, correct?
All right. Well, Miss Clark and I are confused as to which one is which. All right. I will sustain the objection as being irrelevant because this does deal with injected EDTA, not ingested EDTA. All right. Next, Cambridge Isotope Laboratory's two pages. This is the catalog that shows that EDTA compounds, what as research compounds for testing and comparison purposes, correct?
The objection I had down was insufficient foundation and hearsay, and I can't remember what Dr. Reiders did to lay the foundation for it now. It escapes me.
Dr. Reiders didn't testify about that at all. It was Agent Martz who was shown the catalog and testified that he recognized this as a catalog from Cambridge and looked at that page in the catalog and said, yes, that does look like the internal standard that could be used and described what the price was.
All right. The objection will be overruled. All right. 1271-A through C, ion counts.
Yeah. Maybe I can shortcut this. The third slide was a demonstration slide that I did adjusting some of the quantities. It doesn't reflect actual test results. It reflects those multiplied by various numbers. I have no objection to that not being given to the jury, but I certainly think we're entitled to argue that. I mean, that's something we can present in argument. But since it didn't result in any specific results from any test, I have no objection withdrawing it with the understanding we can still make the argument of course and show it in argument.
Okay. Let me make sure, if I can look in the transcript very quickly for a and B, I may withdraw.
Do you have--this is--these are the charts, your Honor, that have the different dates.
No, I don't. Thank you, your Honor. I probably should get glasses. These--as to A, your Honor, we have here the adjusted position of February 22nd and February 28th for the same--
They are, and I'm not disputing that they aren't. But with respect to b--your Honor, could we pass these? I may withdraw the objection. I wanted to see what Agent Martz said about these two slides. And if we don't have to argue an objection, I'd like not to. I'll have--Miss Martinez will find the part.
Socks. Yeah, they're not the same as the ones in evidence. So what's the relevance?
Your Honor, the exclusive relevance of the sock was simply to coincide with the testimony of Herb MacDonell to enable him to explain what surface 1, surface 2 and surface 3. If it isn't obvious to this jury it isn't the same sock only offered for that purpose, it would be truly extraordinary.
I don't even think this needs to go into the jury since everybody knows what socks are.
Yes, your Honor. I will be handling that. That was Michele Kestler who testified. This was an item of handwritten notes by Gregory Matheson which was shown to the witness for the purposes of refreshing her recollection. I just reread the transcript, relevant transcript sections, and, in fact, it did refresh her recollection that they had certain meetings shortly after the crime scene was processed on the 13th of June regarding case security. That's all it was used for. The document itself is not an official forum, it's not a business record. I don't know why it's being offered.
Is this considered listed as one of the objected items yesterday? We'll withdraw it.
Your Honor, this was the memorandum from Chief Gates that I believe was 24 years old.
Oh, it was? Okay. And I also just checked the transcript on that and there was--
Your Honor, I'll make the same objection that I previously argued this morning with respect to the collection.
1320 is the summary that was done in preparation for the griffin hearing which was a typewritten summary. This particular document was not a business record and it was generated by Greg Matheson. There's a very similar or identical document I believe that was actually testified to by Greg Matheson which came in since he was the witness that created it. But this particular version of it, typewritten version is not--cannot be authenticated and not fall within any exception to the hearsay rule.
Your Honor, my understanding--my recollection was that she did authenticate it. In fact, it was authenticated twice. She testified to this typed version of it at that hearing before your Honor last summer and there was the same report that was shown to her on the witness stand in front of the jury, and it was a typed version that she participated in the preparation of. I--I disagree with Mr. Goldberg's recollection of this.
I just ask the court to reread the transcript because this particular one was prepared by Mr. Matheson. She was present, but--during the--when the handwritten version was made, and the handwritten version as I recall is in evidence.
Your Honor, on 1326-B, according to my notes from our discussions yesterday, the Defense was going to withdraw that.
These were items that the Prosecution--1329 and 1330, that the Prosecution wanted to have permission to cross-reference and put post-it's on. Other than that, we didn't have an objection to them.
Well, I think the cross-reference to 1330 is 1098 and I don't have the other--a cross-reference for 1329 yet.
All right. 1330. This is the one--this is an elmo printout where the detail on the door sill is lost in the elmo process. So we are going to cross-reference this to the actual photograph. Do we have the number to cross-reference that to, and I can put a post-it on it?
1098. 1098. All right. All right. And, Mr. Goldberg, your staff will prepare a label indicating cross-reference People's exhibit 1098?
Thank you. We can go back to the EDTA whenever you want. I've had a chance--could we have--the People marked I think similar photographs, if I could see them. Let me ask--let me show these to Mr. Douglas.
No objection to these. And in regard to that, Mr. Douglas indicates he will not object to the People's exhibits. Let me name them for the court so we may save time. 581-A, B, C, D, E, F, G, H, I, J, K.
They're the same pictures, your Honor. So I don't object to the entire set coming in.
All right. We are going to cross-reference 1337 and also 1337-C. Mr. Goldberg, that was your suggestion?
We have 1341. I have a note about cross-referencing that, but that might be difficult. I think that's one of Mr. Blasier's boards.
Yes. These were--it was a page of Gary Sims' notes that notated some transfers on bindles and objections were sustained to that when the Defense tried to elicit from Dr. Lee what was indicated in the notes.
Well, my argument is that these notes are notes that Dr. Lee testified that he would generally rely upon from other experts in the field. They're the laboratory notes of the analysis of the bindle and they document that Gary Sim's--there was a cross transfer. So I think that under the--
Well, is there any dispute given what we've seen from the photographs that they were a cross-transfer?
No, there's no dispute that there's a cross transfer, but what's significant is that Gary Sims noted it and when he noted it. That is a significant evidentiary point.
Your Honor, I thought we were not going to relitigate issues that had already been resolved the first link to the party, and I've been trying to stick to that. This isn't an issue where--I'm not positive. I think we may have gone to sidebar. But at any rate, the court did make a ruling and several times sustained objections. We would like that the hearsay rule to be enforced. It is hearsay. There is no authentication for it.
Your Honor, this was an article that I objected to. It is our position that when you are using an article from a scholarly treatise, the article itself doesn't come in. However, for tactical reasons, the People are withdrawing our objection to this particular exhibit.
Yes, your Honor. I'm standing in for Mr. Darden. Those were the questions propounded to Officer Fuhrman by Laura McKinny. The problem with it is, your Honor, that it goes far beyond the material deemed admissible by the court and basically makes reference to what I believe to be sections of the tapes that were deemed inadmissible or responses or it's not deemed inadmissible, were not requested to be admitted by the Defense and not known to the jury. So the problem is really that the questions go far beyond the testimony that was deemed admissible by the court. I think it would cause the jury to speculate about what else was said and the balance of the conversations that were neither proffered by the Defense nor ruled admissible by the court.
Your Honor, I take that as being a 352 objection. I do think, however, that it is very germaine to the question of what Miss McKinny was trying to do. Was she simply working on a work of fiction, was there any realistic components to any of that. I think that the colloquy suggested by those sheets and that exhibit enforce our claim that when any words were spoken by Mr. Fuhrman and the 42 times that he uttered the "N" word, he was not doing so in any sort of character. Rather, he was reflecting more his own personal viewpoints because the letter--the questions speak to different issues and areas of general concern and make it clear that he's not being asked certain questions in any sort of a theatrical or fictional context. I think that's going to be a very important aspect for the jurors' assessment of the value of her testimony in this case.
But, your Honor, the problem I have with it is this. Miss McKinny was clearly capable of being very articulate to--in framing her answers to demonstrate what the Defense wanted her to demonstrate, which is that he was talking in the first person and not for any fictional character when he used racial epithets. If this set of questions is being asked for--to be admitted for that purpose, to establish that that is--that he was speaking for himself when he uttered those epithets, then the Defense does not need them because the People will never argue to the contrary. And if anyone needs any further assurance of that, let me state it on the record. I am not going to argue to this jury nor will I ever tell anyone that I think the racial epithets were used in a fictional capacity by Mr. Fuhrman. The problem--so that being given, that concession being given and will be repeated to this jury, there is no reason to admit these questions, which I think will cause a jury to speculate about what else they talked about that are way outside the bounds.
If counsel is willing--because, your Honor, the negative is not sufficient for our purposes because the jurors on their own may associate the fact that there's a screenplay, that it's a fictional work based on fact as being suggestive of more. If counsel were willing to stipulate that, in fact, these were factual statements of his rather than saying I'm not going to argue it's fictional, I want the reverse of that. I want her to stipulate, and then I'll withdraw the exhibit, that, in fact, these were expressions of his own viewpoint and were not part of any fictionalized role playing because the jurors can on their own, without the assistance of counsel, interpret the answers and the conversations in a manner that will not be accurate and would be misleading, and this exhibit helps to place that in a better context. They're talking about issues of general concern. We're talking specifically about matters that we're dealing with general attitudinal points of view. There's no question suggesting play or role in telling someone what to say and I'm fearful the jury on their own may interpret something that's not true.
Well, the proffered stipulation as framed goes a little too far. It's clear from reading the transcript, as the court knows, that there were a lot of times that they were actively engaging in setting up fictional things. For example, the example of a cover-up that Miss McKinny kept trying to get before the jury was an example of a piece of fiction that she and Mark Fuhrman were working on. That was a situation where a suspect had been subjected to the choke hold or to some beating and the female officer was expected to cover it up. They were--that was the piece of fiction they were working on that she was trying to get before the jury. Nevertheless, what I'm getting at, your Honor, is this. The Defense seeks to have the jury know that when he used racial epithets, he did so on his own because that's the way he felt. I'm not arguing to the contrary. This set of questions goes far beyond that purpose, far beyond that purpose, going into all kinds of different areas and his viewpoints about them. And one of the questions even will assume facts not in evidence because it discusses his response to a social political question that was phrased--put to him in an earlier tape. So I would simply urge the court that it's way overbroad for the stated purpose.
All right. I'm going to sustain the objection under 352 because it does in fact deal with many situations that are not relevant to the issues before the court.
Is it possible, your Honor, the court will reconsider and have us redact those areas that were not, in fact, discussed in testimony?
Okay. Withdrawn. Is 1368--we just need to do is make sure that that is the one that was approved by the court for admission.
If we can simply make sure there's nothing else on that tape except what the court deems admissible, then there's--
Miss Clark is welcome to sit here and listen to the entire tape to satisfy that concern.
If we can go back then to what we earlier passed. As to the EDTA, your Honor, 1231?
Now I recall. As to 1271-A, in which the dates are labeled, there's no objection. As to 1271-B, here's the problem, your Honor. What it shows is that, it shows the gate and the positive control on February 28th and it shows them to be very different in amount, and it's misleading because the reason for the difference in amount, which is what the--which is what Agent Martz said, and I'm going to show the court the area of the transcript where he's asked about this--is that this was again a situation in which one was run in the morning and then there were a lot of runs, like 30 runs that day, and one was run at the end of the day. The column became desensitized. And so you had vastly disparate readings because of that. This chart makes no effort to explain that, and to the contrary, makes it very misleading because it does not anywhere indicate that there were some 30 runs in-between and hours in-between which accounts for the discrepancy in the amounts given, the sensitivity of the column. And I have for the court the relevant transcript portions.
I think that that should be our argument, that there was complete testimony about this and his offered explanation. Our position is that that may account for some of it, but it also shows the imprecision of this methodology that he used. So it's been fully explained to the jury. It's not misleading at all. They've been told about it.
Well, we should argue that later. I don't think we should argue that now. But as to B, the problem is, if the jurors gets the chart, all they are going to do is see a very misleading chart that doesn't indicate the difference in the time of day, the separation by runs. It's very misleading and--
All right. I think Mr. Blasier's point though on this is well-taken, that it does show the imprecision of this type of testing, that if it differs by when you--the results differ by when you did it in the day and what run it was, that's something that you should think about.
That's true. Then why don't we simply ask it be modified to indicate that one was the different times that they were run because that is available information to Mr. Blasier.
Well, all of those charts are at different times and different runs. Then we should exclude--
You are welcome. All right. Objections overruled as to a and B and C is withdrawn. All right. What else do we have other than the ones we cited the transcript to the court, the court has to look at the transcript?
We did have a sidebar on that issue. I don't think that prevents the court from considering the subject matter again. People renew their objection. I still think it's misleading in that it tends to--it--
That's right, your Honor. It contradicts the testimony of the witness in stating that there are no hairs consistent with O.J. Simpson on the Rockingham glove. That is inconsistent with the testimony of the witness.
Okay. I'll take a look at the transcript. So I have to still rule on 1036, 1043, 1052, 1132, 1170, 1224, 1241, 1253, and that's it. Mr. Douglas.
Your Honor, I have another matter that dovetails into the argument that Mr. Blasier is going to give concerning the proper scope of rebuttal.
No. I just want to make sure, do we concur that those are the exhibits that remain to be ruled upon as soon as the court has the opportunity to review the transcripts?
We have to mark some exhibits, your Honor. We have to renumber them. Miss Robertson informed me that I had incorrectly marked one and I forgot to bring down the sheet. I think I forgot to bring down the sheet that says what the renumber needs to be. I need to do it on the record.
So if I could, your Honor, the magnetic board that was previously marked as 601-A through E, which was of the interior of the Bronco, remark it as 602-A through E.
Thank you. Also, the videotapes of the exercise videos, we have the redacted versions here.
Outtakes? Outtakes. 521-A. They've been redacted I think as requested earlier, and then the motivational speech for juice plus, 522-A.
All right. So marked.
(Peo's 521-A and 522-A for id = outtakes and
Motivational speech for juice plus respectively)
Your Honor, at a time of convenience, can Mr. Harris be allowed to check out those?
And why don't we just right now set an agenda for the things we need to cover this afternoon. What other matters do you think we need to resolve this afternoon?
Your Honor, we have to resolve the question of the rebuttal list that we were given today. I would like to speak concerning the lay witnesses, Mr. Neufeld about the scientific witnesses and the problems attendant to each. We have a matter to discuss in terms of our motion to limit the proper scope of rebuttal. As a corollary to both of those motions is the broader question of the discovery or lack thereof and what impact, if any, it will have on our ability to begin the rebuttal case on Monday.
All right. Miss Clark, this morning I saw a list of rebuttal witnesses go flying across my desk.
I didn't bring down any of the rebuttal lists, your Honor, because I went flying down with the exhibit stuff.
I need to get a copy of mine, but I can tell--I can tell the court and counsel that we intend to begin with the glove photographs. So it will be all of those photographers in addition to a representative of NBC or stipulations to NBC video clips of the Defendant and gloves.
After this, yes, at the conclusion of it all. And all of the photographs that we intend to present have been examined by him and authenticated by him already.
No. There are other photographs we've been told. I was just handed photographs that you ordered turned over a week ago that are the key ones that I've been told that they will probably use. We just got them and I've asked every single day for them, and now I get them this afternoon, Friday afternoon. I can't send them out across the country. This is completely impossible for us to try and prepare for Mr. Rubin on Monday when we get these pictures on Friday. And we have the whole scope argument as well.
Your Honor, we--I'm at a loss here. I'm not the one that did the discovery of the glove photos. So I can't respond to counsel. I don't know. As I understood it, everything went over to the Defense.
All right. Why don't we do this. Let's do this. As far as this issue is concerned, get your stuff, get Mr. Hodgman and Mr. Yochelson down here. Let's resolve the discovery issues for the rebuttal case this afternoon. I want to launch into--I want to give Mr. Regwan and Mr. Schwartz their hearing regarding the Fuhrman tapes. And I take it--I don't believe either of you have any further interest in that particular aspect, do you?
Other than indicate--can I indicate to the court our position now so I can get to work on the discovery?
Our position is that the tapes should be released and we urge there be a full public viewing and hearing of all the matters contained on them for further examination and review.
Your Honor, we would defer to the position taken by Messers. Regwan and Schwartz. We feel they are in the best position to assess and to comment on the admissibility or the release of those documents.
But, your Honor, respectfully, I'd like to get back to work, particularly given some of the things that have been said just now, and if the court can indulge us, I would like to resolve these discovery matters before we launch into the other thing so we will not--
Well, counsel, here's the problem. I need to clear off all of the exhibits I got here. I need to give them back to Mrs. Robertson so she can sort through what's been admitted, what's been kicked out, and then she has to pull out those things I need to reconsider for once I get the transcript. So I need to take some time with my staff to accomplish this. In the meantime, I thought I would at least give--because we had scheduled this matter at 2:00 o'clock. We're already an hour behind schedule because I did not anticipate this hearing today. We have the city attorney, Mr. Hahn, here. So I would like to at least hear that argument. And I propose to limit it to half an hour. That will give Miss Clark enough time to track down Mr. Hodgman, Mr. Yochelson, get down here. Let's settle these discovery matters. I am concerned about the photographs of the gloves because I did order those turned over last week or earlier this week, whenever it was.
And, your Honor, as part of that direction, can you ask that they be prepared to inform us of the next three days of witnesses and the order?
She's just given me--Miss Clark just gave me glove photo persons, NBC video persons and Mr. Rubin.
All right. Why don't you get started on that. All right. We'll take five minutes. I don't want to clear the courtroom, Deputy Jex. I just want to take five minutes to clear the exhibits off the bench.
They compared different days on some of the charts, your Honor. There was also a confusing juxtaposition of different results obtained at different times, and the problem that we had with all of those slides was that it was misrepresentative of the actual results that were obtained.
The daughter wars.
It was—it sounded confusing to me, but she made a prior inconsistent statement on June 15th. That was her initial statement. She then changed it after the preliminary hearing on July the 8th. So that—and that was the statement that was consistent with her testimony at trial. It doesn't qualify. It is not prior in time to the inconsistent statement.
Why are you referring to a Styrofoam cup, sir?
Aren't we really quibbling over something that is of little moment? The issue being he testified he didn't see blood and he didn't think it was being held in a secure area. I mean, that is really the import of his testimony.