All right. We have three issues before us with the counsel for the real parties in interest. The list of rebuttal witnesses. I do have before me a letter, two letters from the District Attorney's office, both dated September the 8th, and the first letter, there is a list of 59 rebuttal witnesses, potential rebuttal witnesses, and on the second letter, which is one page, there is the additional of--addition of one additional name to the list of rebuttal witnesses. And, Mr. Darden, this is--on behalf of the People, this is your current list of potential rebuttal witnesses, correct?
That's correct, your Honor. I should indicate that Mr. Hodgman and Miss Clark are supposed to be here to argue these issues. Would the court--I just returned to the courthouse. I've been gone all afternoon. But the letters the court just indicated are the most recent additions. I'll attempt to assist the court to the best I can.
All right. Well, we've got--okay. Well, you've got the list of potential witnesses. Mr. Darden, do you have any information as to--my understanding is, you're going to start with certain photographers who allegedly taken photographs of Mr. Simpson in the wintertime wearing gloves.
Your Honor, I didn't quite hear what the court said. I know that Miss Clark anticipates arguing rebuttal on the glove evidence. Is that what you just said?
No. I'm just trying to figure out who the next several witnesses are going to be. But how about if you get them down here?
Well, I assume that since they've told both myself and the jury that they have approximately five days' worth of presentation, that this is a list of potential witnesses given how things go. For example, Bruce Weir--
--RFLP results from the Bronco, whether that comes under the rebuttal case that we have to address today. And I submit to you that Dr. Weir absolutely will be necessary if they're going to be allowed to put that in, and Dr. Shields is going to be a witness in rebuttal and Mr. Sims is necessary for it and I think that there's a serious issue there as to whether or not they can present that at all that we have to address.
All right. The record should reflect we have now been rejoined by Miss Clark and Mr. Hodgman and Mr. Yochelson.
If the court please, may I deal with the lay witnesses and leave to Mr. Scheck the scientific issue or Mr. Neufeld?
All right. Counsel, what we anticipate is beginning the Prosecution rebuttal case Monday morning promptly I hope. Who do you anticipate now that you've had some time to contemplate these matters and the other issues have been resolved by the court of appeal?
I would assume shortly before--out of the presence of the jury, but before we resume on Monday.
Okay. And then we intend, as I indicated to the court, to begin with the glove photos.
To lay the foundation. It's about one minute of questioning. "Did you take this picture? "Yes. "When?" That's it.
Where. And where. I mean, the total sum of all the photographers, the number of them is about 10. Their questioning will take about five minutes each if that, and that's it. It's just a foundation for the picture.
Richard Romano. I'm sorry. Richard roman, Michael Romano. And I said Richard Rubin. Kevin Schott, Rob Seib, S-E-I-B. That's it. And an NBC representative.
All right. After you conclude with the glove photo witnesses, who do you anticipate using after that?
It's a mixture. I think it's as to each. I'm not prepared to address that, your Honor. That's going to be addressed to the court by Brian Kelberg. I assumed it would be Monday.
All right. I would suggest then that we set for a hearing Monday probably at 5:00 for--because we have that issue of the timeliness of performing the RFLP that's been raised.
Your Honor, this--we received another autorad this afternoon, and the problem I have is that, anticipating that we were promised a report from Mr. Bodziak, we haven't gotten it, I got a report yesterday from Mr. Popovitch, the glove photographs were supposed to be turned over, haven't been turned over.
All I'm saying is that I would prefer--and I don't see any reason why it shouldn't be done--that we address this now. I'm prepared to argue it. It was scheduled to be argued. It's not fair to dump all this discovery at the last minute on us. We're going to ask for adjournments. I'm telling you right now, we're going to ask for adjournments because they've been playing with it. They had this stuff.
Well, depending on the court's ruling. That's what we are going to need to address with the court, as to whether or not Mr. Sims can be allowed to do the numbers. And then Brad Popovitch.
Then we'll be seeking to admit the Thano Peratis video under 1202 of the evidence code.
Christian Anders. And that's another witness who received a prior inconsistent statement from Robert Heidstra. George field, no. 20, another Heidstra witness.
Yes. That may be so. He will be addressing the demeanor of witnesses called by the Defense if the court recalls.
The Defense has his CV. With respect to his proposed testimony, we will be meeting with him tomorrow, and I will put together an outline of what he proposes to testify to.
Okay. Off the top of your head though--I'm sure you had preliminary discussions where you've decided you may call him. Can you just give me a heads up as to where we're going with that?
Yes. What he has done, your Honor, is, he himself has done a study interviewing men who have murdered their wives and reviewed their cases to determine what their pre-offense behavior was, their demeanor, and their post-offense behavior was, and it goes to the issue of what one would expect to see in their demeanor. That will--
KEY QUOTEYou know, I hate to make a representation to the court. My sense of it is that he had. He's certainly very well-versed in the area as to what kind of behavior is to be expected given his studies and his involvement in the field. But I need to get with Dr. Dutton tomorrow to make sure of that.
All right. I'll need to see P's and A's on this. Okay. Where do we anticipate going after that?
You appreciate the difficulty in our ability to respond yet until we have a chance to understand--
An additional area of inquiry of Dr. Dutton would be a victim's profile to debunk the myths.
And that goes to the testimony elicited by the Defense from Arnelle Simpson, Christian Riechardt--who else? At least those two witnesses though concerning the behavior of Nicole Brown in the time before her murder, her conduct with the Defendant. The--what the Defense is going to argue based on their testimony, your Honor, is that there were no problems between them because after all, she was still friendly with them, she was at the house with him and she had nothing to fear from him. That is a myth that can be uniquely addressed by someone involved and an expert--who is an expert in the field of domestic violence as Dr. Dutton is. He will be able to discuss the fact that the typical battered spouse syndrome or the battered spouse doesn't necessarily run away and stay away from the spouse who is doing injury to her of whom she is afraid, and that would go to address the issue specifically raised with Arnelle Simpson's testimony, that she saw Nicole sitting on his lap just weeks before the murder and Christian Riechardt's testimony concerning their--the nature of their relationship on and off again, coming back to each other, leaving each other.
And with respect to where we go after Dr. Dutton, your Honor, we're going to need to--we will be filing a brief with the court and we are going to ask the court for the ability to bring in the evidence in the study prepared by Doug Deedrick concerning the rarity of the Bronco fibers. We believe that the Defense has opened the door to this in two ways. No. 1, that in his questioning of Kathleen Bell, Mr. Bailey brought up her--elicited from her a description of the vehicle driven by Mark Fuhrman, which was a pea green and white utility vehicle. There was no effort made by Mr. Bailey at any time to verify that that was indeed the vehicle that Mark Fuhrman drove at that time. I'm sure the proffer would be from him that he attempted to elicit that to show that she could identify Mark Fuhrman, that she did know him in order to impeach the testimony he gave that he did not remember her. However, without an effort made by the Defense to tie that vehicle in to Mark Fuhrman, what that tend--what the purpose of that was--and I bet the argument will be forthcoming--that he had quite a lection for that sport utility vehicle similar to a Bronco. So that's one area in which I think. The other one is the general attack upon the credibility of Mark Fuhrman. In that regard, it was the Bronco fiber that was found on the Rockingham glove. That goes to impeach--what that does is go to reinforce the fact that it was not planted, that it was indeed tied to the Defendant through the fiber from his car.
Put your P's and A's together, and we'll--but I'd like you to also include in your P's and A's cites to where it is in the transcript so I can--
Then we will--Mr. Deedrick will address the fabric impression on the envelope to which Dr. Lee testified.
I think it's on the envelope. If my memory serves me, it was on the envelope, parallel lines that Dr. Lee testified to, which he thought might be consistent with a shoeprint, but which we had determined--I think we had determined--we haven't gotten the report yet--to be consistent with I believe the jeans of Ron Goldman. And Bill Bodziak to address the shoeprints testified to by Dr. Lee.
Okay. All right. Well, that ought to take a couple of days. All right. Mr. Scheck and Mr. Douglas have raised certain discovery issues regarding these matters and the most difficult, of course, being the scientific witness matters.
Which is that on this list of 60 witnesses, there are--since there's no indication whether someone is a Ph.D. or MD or an expert in any field, what we need to know for obvious reasons right now is who on this list of 60 people are intended to be experts. You've of course elicited from them several, but there may be many others. One person I see on the list, for instance, is a psychiatrist.
Yes. Also indicated here. What I would ask is, especially if it's the People's position that they intend to complete their rebuttal case in five days, given the list of 60 witnesses and given the obvious limitations that we have in being able to prepare cross-examination of these 60 witnesses and the special problems that arise from dealing with experts, notes, reports, 402 hearings, Frye hearings and the like, at a minimum, your Honor, today, so we don't waste a moment over the weekend, we would ask the court to find out from the People of the list of 60 who do they intend to elicit expert testimony from, and then as to those people, at least a proffer. So--because as Mr. Scheck was pointing out earlier, we need to know what's realistic so we don't go off on wild goose chases in the very short amount of period that we have to get ready for these witnesses.
And as to lay witnesses, we would like names and addresses. Some of these names are new to me.
What concerns--you know, we're really concerned with the suggestion that this is all going to happen within five days, and this list is inconsistent frankly with that representation. So at the minimum, your Honor, right now, we need that. We need to know who the experts are or a very brief proffer, not extensive, but just kind of the thumbnail sketch you asked for so we can know where we stand.
I'd just remind the court this comes from the people that repeatedly gave us people on the short list who were never called, people who I prepared for extensively who were never called and I didn't find out that they were not going to be called until yesterday. So I just want the court to get a sense--
As you know from our conversation yesterday, Miss Clark, my biggest concern is finishing this case with an intact jury, and delay is something that will be anathema next week.
I agree. I'm sure we all agree. No question about it. I thought it very important to be as thorough as possible. I don't want to be caught short that way with respect to who is the experts I mean.
Michael Baden. Now, Michael Baden would not be called for expert testimony. I think I should indicate as to Mike Baden and Faerstein, they would be called for the events of June 17th.
I don't recall there being any Defense case witnesses that would have raised that issue, so as to make this a proper--
Okay. Baden and Faerstein you're only offering for their non-expert observations of the events of June 17th?
Except--let me make one proviso on that with respect to Dr. Faerstein. He will be able to tell us the effects of Xanax, which were found in the Defendant's possession on June 17th.
Well, I'd just remind you, your Honor, there's two issues on DeForest. One is that you review other material to see if it's Brady and exculpatory material. And, 2, although the People have made one representation that his testimony would be about socks, I just would like a thumbnail sketch proffer of what other topics is he going to be addressing. Not in detail, but what other topics so we can look into it.
Well, let's go through here first and see who the experts are, and then we'll go back and see if anybody is a mystery to you. All right. Let's start at 20. George field.
Let me indicate something to the court in that regard if I may. Roger Leach--and skipping over to the next page--I don't know if they're on here yet--Norm Anderson and David Boyce, okay, those three would all be called in an expert capacity concerning--it's the manufacturing of the--of the fiber. Each one would be giving testimony of about 10 minutes in length because all they're going to say is--for example, Roger Leach would go to the fact that the dye used for the carpet fiber that was identified by Doug Deedrick was used in this time frame by this company and sold and put into these kinds of cars. That's it. And with respect to Norm Anderson, this kind of carpet, this cross-section of carpet fiber was manufactured between these times and that's it. So--and we're talking very, very limited testimony from these people.
Steven Oppler is a D.A. investigator. He's just there to authenticate the Peratis video.
And Richard Rubin, expert. Everyone's aware of him. Gary Sims' already known. Bruce Weir, known. That's it.
All right. Leroy Taft and Cathy Randa I believe are on the list because we intend to, as part of the events of June 17th, present the fact that they within presence of Mr. Simpson's departure from Mr. Kardashian's house, went to union bank to his safety deposit box and recovered large sums of cash in a briefcase. This all goes to part of the chase which goes to consciousness of guilt. And we could file--we could ask leave of the court to file P's and A's on this issue for the admissibility of this testimony if that's in question.
Your Honor, my understanding is that the witness recanted that version. So I think that's a foundational issue as well.
All right. Okay. We've identified the experts. All right. Mr. Neufeld and--either you or Mr. Scheck, why don't you address your concerns regarding the status of our discovery issues.
Your Honor, I'm sorry. I'm not the one who's privy to that information, and Rock Harmon is the one who is. Concerning the RFLP results? Is that what you're--
No. I just mean all the expert witnesses. I'm just interested in what the status is regarding all of these people and all of their reports, et cetera, et cetera.
Just as a procedure matter, would you prefer to deal with the discovery or would you prefer--
Yes. Yes. I would rather have you preparing over the weekend. All right. Norm Anderson, no. 5, that was as to--Norm Anderson is one of the fiber people, correct?
All of the information that they would testify to was turned over in the People's case in chief when this issue first arose.
Mr. Bodziak was one of the issues that came up before. You've turned over his notes, correct?
May I point out that Mr. Goldberg indicated to me he was unaware of it, but as the court distinctly recalls, Mr. Hodgman and Mr. Yochelson represented to all of us that we were going to get a report from Mr. Bodziak. It's insufficient to simply say he is going to testify about shoeprints because that's what he did on his testimony in the direct case. What is he going to testify in rebuttal to Dr. Lee? In regard to which exhibits, which scientific tests? In addition to that, it appears now from pictures that were given to us yesterday that the jeans were, without notice to us, used in a fashion where it appears Mr. Goldberg informs me that we have a picture of Ron Raquel doing something or taking an impression of them which was then sent back to the FBI who aren't given any--I don't know if that could potentially be a destructive test. We weren't given any notice of that.
I don't know. They were taking--they were manipulating the imprints on the jeans in some fashion, whether to take impressions of them or not, to send them to the FBI for purposes of testing. That was quite aggravating, is that as we are discussing the scope of all of this and what discovery should come over and we're trying to find Mr. Goldberg to find out what dates contact sheets were turned over and the rest of it. They're off doing these things without giving any notice of potentially destructive tests so we could have somebody present to see what they're doing and get some handle on this and at least request permission to be present when any impressions or testing or comparisons were being conducted by the FBI. They're doing this now. Mr. Goldberg told me yesterday--he can speak for himself on this point--that these fabric things were being sent to Mr. Deedrick and they were going to find out what the results were. I think he said that this morning. Now I'm finding out something this afternoon. There's nothing here. But I think it's really improper that they didn't give us any notice whatsoever that they were even going about doing this so we could have somebody present to make a record of it and if it was a potentially destructive test. That's one thing. The second thing is, it's not enough to say that Mr. Bodziak is going to testify about shoe imprints. It's got to be directed towards what, if anything, he's going to say in rebuttal of Dr. Lee on what specific points of evidence because he testified to the other stuff on the direct case. We've gotten nothing here, and they told us they were going to give us this a week from now, and it seems to me that there's a big double standard. They shouldn't be allowed to take advantage of the fact that we're all sick and tired of how long this is taking and the jury is sick and tired and we're all on edge. But the point is, I will not on behalf of this client permit this kind of situation where we're going to be ambushed. It will not happen. I will ask for adjournments, take as long as it need be to have the appropriate people look at this, and I protest the potential destructive tests on this evidence without notice to the Defense.
I thought it was the court that decided what was going to be allowed and not allowed, not Mr. Scheck. Maybe I'm mistaken about that. As to the test impressions, your Honor, first of all, these test impressions are nondestructive. When Dr. Lee testified, I learned for the first time during his testimony that he had concluded that the shirt that was worn by Ronald Goldman in his opinion could not have created the impressions on Ronald Goldman's jeans. He had previously told me in telephone conversations that we had had prior to his testimony that he believed that the jeans did not create the impressions on the evidence envelope or the piece of paper. I assumed--I do not recall asking him, but I assumed because it is a standard forensic practice that Dr. Lee took test impressions from Ronald Goldman's jeans and from his shirt. I was flabbergasted when I learned that that was not the case and that he was testifying to an elimination without having made a test impression. When I spoke to Mr. Bodziak about this, he informed me that you have to take a test impression in that situation. I told him that in my opinion, it seemed to me that the jeans could not have created the impressions on the envelope and the piece of paper because I thought that just from my knowledge of--lay knowledge of the jeans, if you press them down on a piece of paper, you get a flat impression, that you wouldn't get parallel lines. Well, I was incorrect in that assessment and we have taken these test impressions, which is a nondestructive technique, in order to send them to the FBI and did so immediately upon learning of this potential problem with Dr. Lee's testimony. So I don't see any basis for the point.
What--your Honor's never heard of it before, and it's a very nifty little device that we were sent by Mr. Bodziak that allows you to--well, for example, you can put your finger on it or any other object and then you put your finger on a piece of chemically treated paper, and the print then appears on the chemically treated paper and there is no noticeable residue left on your finger. So it's a nifty little gadget that--
It sounds like the kind of thing that one does with check identifiers. Anyway, Mr. Scheck?
Just looking at this picture they gave us, it appears as though it left an impression on the blue jean. My point is it--he doesn't know whether it's nondestructive or not, whether it's going to change the imprint impression on the blue jeans or not. It certainly was appropriate to notify the court--that is the practice. That is the griffin problem--that what was going on here. This is--
Well, I'm not going to address all of Mr. Scheck's issues. No. This is clearly without any doubt a nondestructive test. It's not even a test. It's just taking an impression. I mean, we all know what impressions are, and we took impressions and I think we're entitled to do that without any question and wanted to do it as quickly and expeditiously as possible so that I could send these things out immediately. They arrived I think a couple of days ago at the FBI and the analysis is under way. Obviously, we want the opportunity to be able to present this evidence.
It's going to be a combination of Mr. Deedrick, probably mostly Mr. Deedrick and perhaps Mr. Bodziak as well. Mr. Deedrick apparently has expertise in fabric impressions and Mr. Bodziak has expertise in shoe impressions. So it's sort of a dual testimony that will be presented to address this issue.
I don't have any results other than tentative results that have been relayed to me by Mr. Deedrick.
That he thinks that--and I hesitate to repeat them because I may be misstating or oversimplifying what he told me because he has not completed his analysis. And as the court knows, forensic experts usually don't give you much of anything until they're comfortable they've reached a certain state of comfort with respect to their analysis. But reading in-between the lines, my interpretation of what he was saying is that the marks on Ronald Goldman's jeans are consistent or may turn out to be consistent with the shirt and that it does appear that the marks on the eyeglass envelope and the piece of paper are consistent with a Levis blue jeans. But as I said, he hasn't finished his analysis yet. And I also remind the court that Mr. Lee obviously just testified about a week ago and we did try to get on this very promptly in terms of taking the impressions and following up on this, and it was in relationship to Mr. Lee's testimony. And I will point out that that was not in any report or notes of Dr. Lee, that he had excluded these two items, and the only reason that I knew about the jeans is because he had told me about that orally and I learned about the shirt on the witness stand and I didn't know that he didn't take test impressions from that until he testified from the witness stand. Now, as to the issue of reports, your Honor, I agree with Mr. Scheck that there appears to be a double standard here that's being requested because they have said over and over and over again that there is no duty to create reports. That is an argument that the court is very familiar with and they have said that they have not asked their experts not to create reports, but that their experts simply don't create them. In this particular situation, Mr. Deedrick doesn't have a report yet. Mr. Bodziak is going to be testifying in I believe it's Miami on Monday and then he has several other commitments. So he hasn't written any additional reports. However, I will say just, as a little hint that I don't think we're obligated to give, that if counsel looks very, very carefully at the discovery materials, they will find what obviously Dr. Lee found because Dr. Lee said that he disagreed with the report of Mr. Bodziak. So this is a subject about which there already is some materials that the Defense has and may want to take a look at. Perhaps they should have taken a look at it a little bit earlier. But the point is that in terms of our discovery obligations, we have not told Mr. Bodziak either to create--or at least I have not told him to create or not to create a report. I simply asked him to try to look at some of the materials and photographs we sent. And the same thing is true with Mr. Deedrick. And they will do whatever they normally do. And I do not know how the Defense can now argue that we are entitled to create something that does not exist when they have always taken the position that that is not required under 1054.
As to Deedrick and Bodziak, what kind of notes have you produced with regards to this latest testing?
I mean, as to any of their activities in response to Dr. Lee's testimony, any notes?
No, your Honor. The items that we sent I believe arrived or Mr. Deedrick opened the box that contains the test impressions on either Wednesday or Thursday and then there's also some photographs that we sent to Mr. Bodziak which he looked at and opened the box the first time yesterday. So this is all happening very rapidly, and to my knowledge, have not generated any notes other than that which Mr. Bodziak had previously generated prior to his testimony on the witness stand when he reviewed the items, including the jeans and the eyeglass envelope and paper.
Well, counsel, we're not going to hold a hearing right now to see whether or not this is a destructive or nondestructive test.
I understand that. I'm just passing up the photographs so the court can look at it to see whether my concern is made up or if it's evidenced by the photographs.
No. Counsel, I share your concern about what may or may not be there as a result of having taken impressions from the Levis. The problem is, we need the witness here probably in a 402 hearing outside the presence of the jury to tell us what kind of tests these were.
Well, my initial concern first of all--and I want to make clear--is that they had no right to do this without notice, and that was wrong.
Secondly, it's very well for Mr. Goldberg to say that they're not going to ask him to write reports. But Mr. Hodgman and Mr. Yochelson, while he's off dealing with them, have told us, told you, told me on the record that Mr. Bodziak is going to be asked to fill out a report and, yes, they would get a report from him. So it seems to me that that is improper. It's one thing if it's not their normal practice to write a report. It's quite another thing to come in and tell us that we're going to get a report, we'll get it at the beginning of the week and we get nothing.
And if you recollect, I told you I would be surprised if Mr. Bodziak did not produce a report.
Mr. Yochelson and Mr. Hodgman have informed me--and I asked them about this previously--that that is not what they stated and that they stated that if we got a report, they would turn that report over. They did not say that we were going to create a report or they were going to ask Mr. Bodziak to create a report, and that is the representation that they made to me when I asked them this issue earlier this morning.
All this goes to timing, and it seems to me that we're in no position given these activities and given these tentative results and given the way they went about doing this without notice so that we could monitor this, and they have everything we've done. They've had somebody looking with a video camera taking pictures. Very upsetting, that we're going to be ready to deal with this at all. I mean, right now, we don't have a date certain where we've seen no one report, one comparison or examination 1 as to any of this.
Maybe Mr. Scheck can put us on notice as to what statutory provision, case law or order of this court says that we can't examine the evidence without notice to the Defense. I am unaware of that. It's never happened--it's unprecedented in our legal system. It's never happened.
Wait. All right. All right. DeForest, you've turned over the--his notes. I'm still going over the notes to see if I find that there's any Brady material in there.
In addition to that, your Honor, I'd like a proffer at this time as to DeForest. They've already told us they intend to use DeForest--
--on the socks to rebut McDonnell and Lee on the third surface ankle stain. Are there any other subjects?
May I allow Mr. Hodgman to address the court, your Honor? Could I be excused, please? I thought we would be done.
Mr. Hodgman, DeForest, socks. And let me just add this. Counsel, in my review of all of DeForest notes, there are some things I need to ask the Prosecution about with regards to Brady materials. So I'm going to--who is handling DeForest?
In terms of the actual testimony? That hasn't been decided yet, your Honor. I've been talking with Mr. DeForest over the past several weeks.
All right. Then I'm going to direct you to be in my chambers Monday at 8:30. I have some questions to ask you about some of the notes.
Very well. And, your Honor, just to advise the court and counsel, whether Mr. DeForest testifies at all remains a question. I'll be speaking with him again tomorrow. And I should advise the court as well, with regard to Mr. Bodziak, with regard to Mr. Deedrick and Mr. DeForest, as far as I've been advised, these individuals have schedules other than just responding to us and there sometimes are practical problems even making them available to us for moving the case ahead. With regard to Mr. DeForest, I'll be speaking with him tomorrow morning. At this time, I would anticipate his testimony would cover the socks. We provided all sorts of discovery with regard to that. As to any additional areas, I think it's very questionable at this point in time.
Your Honor, the only concern I have that it being questionable is that we were told about three weeks ago that other items of evidence were also forwarded to Peter DeForest in New York besides the socks; the envelope, for instance, the bindle from item 47. So, again, just to avoid the problem of, you know, ambush here or some last minute change in this, they knew three weeks ago when these items were sent to him what his reaction was to these items and if he was going to be providing expert testimony to repute Defense experts. And it's difficult for me to accept that three weeks later, when the Defense has rested for all intents and purposes at least, although we haven't done it officially yet, they don't know who is going to be addressing these other issues for which they received the evidence to examine more than three weeks ago.
Well, it seems to me that they've had the opportunity to review his notes and they've decided so far only to offer them as to the socks. If that changes, then we can take it up. But I'll accept Mr. Hodgman's representation at this time. All right. As to--let's see. Leach was one of the fiber carpet people, correct, carpet fiber people?
Yes. That's correct, your Honor. Miss Clark is most conversant with that, but I'll substitute in.
All right. But the representation is that what they would testify to was turned over in the report that was provided during the People's case in chief.
A taped interview and a report as to notes from a subsequent interview were turned over last week.
My understanding, there was one picture that was sent back to him after that interview took place. I haven't heard anything about that.
Your Honor, with regard to that last photo, we don't have a written report. We understand that Mr. Rubin's opinion is--that it is the photo that was last sent, was consistent--and we'll identify that for you, Mr. Blasier, in the material that we--we have some more discovery material you had asked us to prepare, and we'll turn that over.
Your Honor, we have other concerns regarding discovery. I don't know if you want to hear those.
I'm told all the reports aren't here yet. I want to hear about whether we can be ready to do this on Monday. There's some points I need to address the court on that.
I just want to make sure that the reports with regards to these experts have been turned over. I'm just about to get to the end of the list.
Why don't you take a look at it, see what you got. All right. As to Gary Sims, this is the RFLP. Mr. Hodgman, as to Gary Sims, this is as to the Bronco RFLP results?
Yes, we've turned it all over. I would like to clarify. Mr. Scheck complained at the beginning of one of those diatribes about just getting autorads and generalized that we were playing games. The reason he just got that one--because the date on it is September 5th. So it's a little bit--that's pretty fast, your Honor. So I think he needs to be a little clearer and fairer or more objective in his complaints. So everything's been provided or at least until I hear otherwise, I think everything's been provided.
I'm saying we just got this. The point, I would respect--since Mr. Harmon is here, I would respectfully request that before the end of the day, that we argue this issue because given the way this discovery is coming in, there's going to be a lot of work trying to catch up with what they're giving us in drips and drips, and perhaps if we could clarify this, it would help a lot.
Can I--I know personal commitments don't matter, but my last plane is at 7:30. So--and this was not on the agenda today, your Honor. This was--this was not on the agenda until 11:59 and a half when Mr. Neufeld, when everybody was leaving court, asked you if we could kind of talk about some of these things. So that was not on the agenda today. Mr.--
Pardon me. Mr. Sims was here yesterday. If--I know we've discussed this many times as this trial has progressed. Mr. Sims was here yesterday. If somebody really wants to hear why it took so long, there's only one way and that's to have Mr. Sims here with all of his time sheets. And he's just not here. So I have no idea what the legal issue is no matter how many times I hear about the complaint. So I don't think it is appropriate. I know they--this is something they've known about since July by the way. So this is not a surprise. The other shoe dropped, then the other shoe dropped, then the other shoe dropped, then the other shoe dropped on September 5th. So this isn't a surprise, that four shoes have dropped on this set of mixtures. But I--if they want to have a hearing, we can have a heck of a hearing. It's going to take awhile and I'd like Mr. Sims to fully explain everything, including all the time that Dr. Blake took of his doing this. So that's the only problem. I know they really want to do this now, but we can discuss it superficially, but the only real way to get to the bottom of this is to put Mr. Sims up there and let him explain. That's going to take a long time, but that would be fine.
He'll be here Monday morning. He'll be here Sunday night. We could do it Sunday night if they want to find out about it before Monday morning. We'll be on a 7:30 plane down Sunday night.
Your Honor, if I might very briefly. I have reviewed the record on this. It was scheduled to be done today, not the day before, as soon as we got an opportunity to take up the scope of rebuttal arguments. And there's no need to call Mr. Sims on anything because the record is very clear. The--in March, this court granted them permission to combine the samples 303, 304, 305 from the Bronco. Almost at that point, we began a discussion about the fact that immediate testing would be necessary in order to make sure that this evidence would be available before the end of the Prosecution's case, whatever the results. And at that point, I began saying that this would be improper to raise it on the rebuttal case.
And I commend the court's attention to the transcript, page 27331. We discovered--and you did take testimony or statements from Mr. Sims on this. He wasn't quite sworn in, but he was sitting in the audience. But you indicated that when they were given permission to combine the samples, it was the understanding--and you said at page 27331 of the transcript, it was all our understanding in March that testing would begin immediately if not sooner, quote, unquote. That's what you said. Then it became apparent that initial quantitations were done, but no RFLP testing had begun in earnest, and then we had a discussion of this matter in May when it was revealed that they hadn't done anything for a month and a half except these initial quantitations, and at page 27332 of the transcript, you asked Mr. Sims questions about whether or not--how long it would take to finish the test. This is on May 12th. And he said a month and a half to two months, at which point--and I was arguing then that this was improper because they should have started it earlier because it's something that could have been available to them at the end of the Prosecution's case and it was going to create an unfair situation if they were going to sandbag us with this issue on rebuttal. And the court's statement in resolution of this issue at page 27340 was, "Well, I don't have to reach this now because," quote, "We may have a preclusion by the passage of time." So the court gave a very clear signal to the Prosecution that, A, it was expected, once the stains were all--permission was given to destroy all that evidence and combine them, that the testing should commence immediately if not sooner; B, the record has already been established that they didn't do that for at least a month and a half if not longer; C, in May, Mr. Sims in response to the court indicated that it would take one and a half to two months to do the test. So it still could have been done before the end of the Prosecution case and it was not. They did delay even further. Now, the point is, if one goes back and looks at the transcript, Mr. Harmon and the Prosecution has taken to the position since the beginning of this case that they had a right to do whatever testing they wanted exactly when they wanted it, that they were under no obligation in terms of reasonable necessity or timeliness to do it in a fashion to get it done when the case started. And we went through that and we litigated that and the court gave them permission to do that.
And he was taking a legal position then, well, we can do it whenever we want to. And the court gave very clear signals, very clear signals at the time that permission was granted for them to combine all these samples, that it should be done, testing should commence on that immediately if not sooner. Then the court gave a very clear signal that preclusion by time would happen if they didn't get it done by the end of the direct case because it's something that was available to them. I raised the issue that in terms of the law of rebuttal, that if--I think there's three factors here. Would it be available to them on their case in chief if they proceeded reasonably and as the court directed it would have been? Would there be prejudice if we were confronted with crucial evidence, a second factor, in an untimely fashion? No question about it. It made it very difficult to form the Defense case not knowing what the results from that would be and how. And then finally, a factor to consider in terms of the law of rebuttal, as indicated in our memorandum, would this unfairly highlight this evidence at the end of the case? Now, I think it's very clear and I alerted the court and the court alerted the Prosecution to exactly what they were doing. This was planned. And so it seems to me that this issue is already framed by the record as it stands. Finally--and this is another factor I think we have to take into consideration from the reports we were just given--is that this is a complicated mixture. Dr. Weir in a very baleful way in his report indicates that he has done some analysis here that he gave us, but he hasn't even completed what he considers the best analysis. And I'm sure the court won't forget the analysis and analysis and analysis over days of his being performed by Dr. Weir as he recalculated things as we waited for that to get done, and this RFLP mixture is something that we would definitely have to rebut with Dr. Shields on our case. So it seems to me that that is another factor in terms of the interest of justice considerations and the timing of this trial that should weigh heavily in this decision. But I don't think there's any question that they knew this day would come, and they were given fair warning and the record is clear and complete on this point, and I'd now very much like to resolve it because we need to prepare in terms of all the other discovery that they're throwing on us at the last minute. And I can tell you, we don't like the idea of having delays, but we're going to be forced to do it in terms of this imprint evidence, in terms of this glove business, all of it.
Just a couple points. We look forward to Dr. Shields, who calls himself a demigod, coming in. You recall him in that hearing out of the presence of the jury. So we anxiously await his appearance in this courtroom. I would like the court to remember that every time this has come up, Mr. Scheck has told you that all that evidence was consumed. And each time that he does that, I remind him that was not true then and it is not true now, and someday I would like him to be held accountable for continuing to tell you things that simply don't come close to the reality. I have my own notes compiled, a 10-page chronology beginning March 9th through August 3rd, that I would like Mr. Sims to recount to you because once again, it bears no relationship to Mr. Scheck's perception of what really happened through the course of the testing in this case. And--for example, the Defense knew before we rested what the results of the first probe were. They knew that. So to say that they never knew that and couldn't formulate their Defense, they knew what the PCR results showed. So they knew where the other shoe was going and the other shoe was going as long as we could keep testing it. All I've asked you for is an opportunity. You know, I'm not here every day, but nobody has told me that this was scheduled for today except Mr. Scheck and I'm not aware that it was. Mr. Sims was here yesterday prepared to testify in the case in rebuttal. So I want an opportunity to convince you that once again, Mr. Scheck has not fully informed the court, that contrary to popular belief, there are people who have other things to do in their professional and personal lives. There are deaths in the family as you recall, a long period of time when Mr. Sims was here in this lovely city waiting to testify, preparing to testify. So that's all--I want just a fair chance to convince you that there's not any factual merit to what Mr. Scheck has told you and there's no legal merit to it. I mean, that's one thing we've never come to grips with, that there's no legal merit to it. But I think you can easily resolve this on a factual level, and that's all I want a chance to do, is convince you with Mr. Sims here.
All right. I agree at this point that I need a factual explanation as to what testing was done, what the scheduling was. I am concerned, however, about that six-week delay between the time that the issue was presented to the court to allow the combination of those answers and before the actual commencement of the testing. I am concerned about that.
All right. As I've indicated to counsel, my concern is getting this case concluded. So any of these special hearings are going to be days that aren't--days and times that aren't normally scheduled to be with the jury. So my guess is that we'll conduct this hearing Monday at 5:00 o'clock.
Because I assume that despite the fact that the People say these photographers are only going to take five minutes apiece, I've never seen a five-minute witness in this case. So--
Your Honor, just so the record is clear, Mr. Clarke is making Mr. Popovitch available to me tomorrow for a conference call. I'm going to be spending my time with Mr. Popovitch. I'm not doing one thing about Mr. Sims until we resolve this issue. And if we do lose it, I'm not ready to cross-examine him right afterwards. I just want to make that clear.
Last week, I think on Thursday, you ordered that the Prosecution provide us with equal quality photographs that they intended to use. And this might help to explain what Mr. Rubin is doing. His testimony is to the effect that he's looked at some pictures and Mr. Simpson is wearing some gloves at some football games in the winter and he says, "Look like Garrett Isotoners to me." Now, I didn't know whether that's a proper subject for expert testimony or not, somebody looking at a picture and saying it looks like something. He's not going to say it's the gloves in evidence. He can't say that. He acknowledges that. We didn't get those pictures. Obviously for me to show pictures to other people who might know about gloves, I've got to have the same pictures of the same quality, the same size gloves, whatever so that I can have experts look at them and tell me, "What do you think?" I also might want to make my own pictures of gloves that we have that look very much like these gloves and do them in the same size, the same resolution to test Mr. Rubin's ability to recognize different kinds of gloves. I don't know. The point is, I got 17 pictures at 2:00 o'clock. I've been handed another 27. Very nice pictures. I feel like it's Christmas. They're wonderful pictures, but what am I supposed to do with them at 5:30 on Friday afternoon when I'm supposed to cross-examine 10 people on Monday? I've been asking them every day, "Can you give me an idea which of these pictures you're going to use and who you're going to call?" Asked Mr. Yochelson almost every day, and he's very pleasant to me and shrugged his shoulders, said, "I don't know, can't tell you." Asked Mr. Fairtlough every day. "I don't know, can't tell you." Now I'm told that they have 11 people coming in on Monday, most of whom are from different parts of the country, and I have to assume that they made some decision before 2:00 o'clock this afternoon to bring people in from all over the country to put on all of these pictures, many of which by the way are pictures of Mr. Simpson wearing black gloves and not brown gloves. None the less, I can't be ready to cross-examine 10 people on evidence I just got this afternoon. This is a weekend. We've been in touch with glove companies. I've got 30 pages of lists of glove manufacturers all over the world, some of which we've already contacted. I've got gloves coming from Italy. This is the weekend. I can't prepare for this on Monday. This is ridiculous. This is not fair. Forget the beyond the scope argument. This is just not fair and we're not ready to do this on Monday. We'll have certainly objections to cumulative. A lot of this is just duplicative. We may be able to weed out a lot of these people that way. We may be ready to argue Monday, but there's no reason to expect that we can be ready on this kind of testimony, getting this stuff now on Monday.
Your Honor, most of these photographs were available before today, and we provided the best available copies that we had to the Defense before today. I don't have a list before me with all the dates, but as Mr. Blasier well knows, we've been provided for well over a week with either laser prints, color laser prints or the like. As we indicated to the court and counsel, we did not have negatives ourselves. We had to take what was sent to us by various photographers. We had to go back and ask and otherwise attempt to obtain negatives so that we could comply with what Mr. Blasier asked. That is, that they obtain a like quality photograph of something we intended to present. The vast majority of those negatives came in either yesterday and actually the vast bulk of those came in this morning. We cleared our photo lab and pushed out those photos that Mr. Blasier received today. There was no delay in turnaround. They got them just about as soon as they came out of the developing tank and we provided better quality material then we had ourselves until yesterday and today. So there was absolutely no delay in getting the negative quality prints to the Defense.
I think the court needs to be aware, I've been watching the reports as they've dribbled in this morning in terms of where these things came from, and every report that talks about when they got the picture puts the date at before they rested their case in chief. And things just came in today in terms of them knowing about them. There are several reports that came in this week. They don't have dates on them. The date they were received by the Prosecution has been conspicuously left out. But this isn't new stuff. We have been asking for this for a long time. Now we get it Friday afternoon, 5:30.
And for well over a week, they've had prints, the same thing that we have had, your Honor.
All right. Do I have a scope problem here if these matters were available to you prior to the resting of your case?
Your Honor, I was just hesitating because we did file a brief in response to the Defense objection on the scope argument that I'm prepared to handle if you want.
And I'll defer to Miss Lewis on that if the court wants to argue that now. But as to the scope problem, I'll tell you just as a brief matter of fact, most of the glove material came in after we rested. I think there was two different submissions that I can recall, and one of those we're not even seeking to introduce. Be my guest.
All right. Miss Lewis, does this brief deal specifically with the gloves, dates, times?
Yes, it does, in terms of--well, in terms of the scope argument, your Honor, there is case law supporting--it does not matter--
In a broad sense, yes. It does not detail the dates in which everything was received.
Okay. All right. Then I guess we probably ought to take that up first thing Monday morning, scope of the glove presentation. But I'm going to need dates, times, declaration as to when those things were--
Your Honor, please don't give a tentative before you've read the case law cited in my brief because it does not matter. The court may agree with the People's position that under much of the case law--
Well, I haven't--since you just filed it and obviously I've been busy all afternoon--
The court's aware that we made certain tactical decisions on the Defense based on them not doing this before.
I'm thoroughly aware of that, counsel. There are several tactical decisions that have been interesting. All right. Experts, gloves. What else do we need to resolve now since we are not resolving much of anything?
What I would suggest, your Honor, if it's acceptable to the court, is, in light of the fact that--I think Mr. Blasier's already represented that he will not be prepared to go forward on the gloves. Even if you ruled that it wasn't beyond the scope of rebuttal on Monday and we're not prepared to go forward with those experts right away for a variety of reasons we've already laid out to the court, I would ask that the Prosecution be instructed to be ready with those civilian witnesses who we discussed the other day we got notice of several days in advance if you recall, the witnesses pertaining to Mr. Heidstra. There was a flight attendant from American airlines. The only other point I would make about the witness pertaining to Mr. Heidstra, even though the civilian witnesses--and we would be ready to deal with them, you know, as soon as the Prosecution starts the rebuttal case, I would point out to the court that Mr. Darden represented that the Heidstra witnesses are not rebutting Heidstra's testimony, but are simply trying to corroborate it. And if that's really what Mr. Darden means when he says that, then clearly that would not be appropriate for rebuttal testimony.
What I would also ask, your Honor, is that the People be instructed to prepare by Monday, because we're going to be dealing with scope of rebuttal, any points and authorities they have on those other issues that you highlighted where bells went off I think like the Dutton issue, that that should be filed by Monday morning so that we can respond to it in a timely fashion if we're going to finish this rebuttal case in five days, that they also have their points and authorities by Monday morning on the Bronco fiber revisit that they're asking the court to do and they also have the points and authorities by Monday morning on the June 17th witnesses, because if we're going to deal with the scope of rebuttal, we need to have those authorities right away on Monday so that can be resolved. And I'm not trying to--I think it's reasonable, your Honor, because there's only so many of us, and if there's 59 witnesses, we have to figure out what the heck to do first. And until you--
There's probably 20 of you on each side and there's only one of me who has to read all this stuff.
I understand that, your Honor, and that's definitely a disability. But it would certainly make it easier for you to get started on that if they got the points and authorities to you in on Monday morning so at least we know where we're heading.
All right. Well, as I mentioned to both sides, I don't tell either side how they're going to put their case on, what order they are going to call people, but it would probably be a good idea that you have people available on call in other topics or other areas in case the worst happens. I don't know. I haven't heard the scope argument yet, but you should be prepared to present some meaningful testimony to the jury on Monday.
We will be prepared. I think we can accommodate counsel's request with regard to briefs on the fiber--
Actually, when the court indicated it wanted the record cites on the fiber, we don't have the transcripts yet for the record cites on Kathleen Bell's testimony, for example, with regard to the type of automobile Detective Fuhrman drove.
All right. I'm encouraging you to be ready and have witnesses on call to go forward with other areas of your case in case we run into problems regarding gloves.
For the record, your Honor, on--and I have some notes here. On August the 30th, following our discussion with Mr. Hodgman about who we were going to be hearing from in rebuttal, he said DeForest maybe, he wasn't sure. He said there was some glove evidence depending on an event to occur on August 31st. He named David Adkins. He named Miss Anders, Miss Baret, Mr. Fields, Mr. Bodziak and Miss DeTeresa. He wasn't sure about DNA. He wasn't sure about EDTA. Those were the other names we were given. Later Popovitch came up until this list we got today, and that just is intended to highlight the exasperation that we feel at this point given the abundance of the names and the order that is now being presented which we were not otherwise advised of before today.
This is rebuttal. Mr. Gordon has informed us that he'll have a brief ready on Dr. Dutton first thing Monday morning. As far as the June 17th witnesses are concerned, they would be toward the end of rebuttal if the court were to permit us to put that evidence on. So counsel will have that additional time where we'll try and get the brief ready on Monday for that as well, and we'll do everything we can to move it along. We'll be ready Monday morning.
They said they're going to file a bunch of briefs on Monday. We'll have our scope hearing first thing Monday morning. I'll do my 1054.7 Brady in camera hearing with Mr. Hodgman at 8:30. 9:00 o'clock, we'll have our scope hearing and hopefully by 10:00 o'clock, we'll be putting something in front of the jury. All right. And at 5:00 o'clock, we'll have our Sims hearing. All right. I'm tired. It's the end of the day.
I just want to remind the court, I don't know if the court's even aware. We got served with a pitchess motion which I assume the court had noticed for Monday and order shortening time on that Purdy matter I believe.
Have we heard from the city attorney's office concerning the request for order shortening time?
We had faxed them today, your Honor, a copy of the motion. We told Miss Lewis yesterday it would be coming. She asked that production be delayed. We ask the hearing itself be at 9:00, production if any at noontime.
In that regard, actually, if Mr. Hodgman could track the cases involving Detective Purdy and Detective Fuhrman, and we could see if we could link those up as being the same incidents, then I think we would be well on our way factually to getting a more coherent handle on where that's all going.
Your Honor, one final point. I'm reminded that in view of the court of appeals ruling today, we are this weekend reevaluating the wisdom of our choosing to rest on Monday and whether it's appropriate to take other appropriate steps.
I can't imagine why they are complaining about discovery on rebuttal then when even they themselves say they're not ready to rest yet, Judge.
I will not on behalf of this client permit this kind of situation where we're going to be ambushed. It will not happen. I will ask for adjournments, take as long as it need be to have the appropriate people look at this, and I protest the potential destructive tests on this evidence without notice to the Defense.
My biggest concern is finishing this case with an intact jury, and delay is something that will be anathema next week.
I was flabbergasted when I learned that that was not the case and that he was testifying to an elimination without having made a test impression.
What he has done, your Honor, is, he himself has done a study interviewing men who have murdered their wives and reviewed their cases to determine what their pre-offense behavior was, their demeanor, and their post-offense behavior was.
The other shoe dropped, then the other shoe dropped, then the other shoe dropped, then the other shoe dropped on September 5th. So this isn't a surprise, that four shoes have dropped on this set of mixtures.