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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
SHARON RUFO, ET AL., )
)
PLAINTIFFS, )
)
VS. )NO. SC031947
)
ORENTHAL JAMES SIMPSON, ET AL., )
)
DEFENDANTS. )
_________________________________________)
REPORTER'S DAILY TRANSCRIPT
JANUARY 10, 1997
VOLUME 40
REGINA D. CHAVEZ, CSR #8446
OFFICIAL REPORTER
APPEARANCES:
FOR THE PLAINTIFFS: DANIEL M. PETROCELLI ESQ.,
THOMAS LAMBERT, ESQ.,
PETER GELBLUM, ESQ., and
EDWARD MEDVENE, ESQ.
Firm: MITCHELL SILBERBERG & KNUPP
11377 West Olympic Blvd.
Los Angeles, CA 90064-1663
For: Plaintiff Goldman
JOHN QUINLAN KELLY, ESQ.
330 Madison Ave.
New York, NY 10017-5090.
For: Plaintiff the Estate of
Nicole Brown Simpson
MICHAEL A. BREWER, ESQ.
Firm: HORNBERGER & CRISWELL
444 South Flower St.
Los Angeles, CA 90071.
For: Plaintiff Rufo
PAUL F. CALLAN, ESQ.
Firm: CALLAN, REGENSTREICH,
KOSTER & BRADY
One Whitehall St.
New York, NY 10004
For: Plaintiff Estate of.
Ronald L. Goldman
FOR THE DEFENDANTS: ROBERT C. BAKER, ESQ.,
MELISSA BLUESTEIN, ESQ., and
PHILIP BAKER, ESQ.
Firm: BAKER, SILBERBERG & KEENER
2650 Ocean Park Blvd., #300
Santa Monica, CA 90405-2936.
-and-
DANIEL LEONARD, ESQ. and
ROBERT D. BLASIER, ESQ.
Firm: BAILEY, FISHMAN & LEONARD.
6355 Riverside Blvd.
Suite 2-F
Sacramento, CA 95831
CHRONOLOGICAL INDEX OF WITNESSES
DEFENDANTS' WITNESSES: PAGE
LEE, HENRY
CROSS (M) 1
REDIRECT (B) 27
SIGLAR, GARY
DIRECT (L) 49
SIMPSON, ORENTHAL J.
DIRECT (B) 100
Legend: (B) = Mr. Robert B. Baker
(BL) = Mr. Blasier
(BR) = Mr. Brewer
(C) = Mr. Callan
(G) = Mr. Gelblum
(K) = Mr. Kelly
(L) = Mr. Leonard
(M) = Mr. Medvene
(MB) = Ms. Bluestein
(P) = Mr. Petrocelli
(PB) = Mr. Philip Baker
(TL) = Mr. Lambert
SANTA MONICA, CALIFORNIA; FRIDAY, JANUARY 10, 1997
9:20 AM
DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
APPEARANCES: (Per Cover Page)
(REGINA D. CHAVEZ, OFFICIAL
REPORTER)
(Jurors resume their respective
seats.)
MR. PETROCELLI: Guess we're going to finish
the Henry Lee tape.
CROSS-EXAMINATION
BY MR. MEDVENE: (continued)
Q. When we were talking at the
break --
A. Yes.
Q. -- about the envelope, and we
went rather quickly, in fairness, I wanted
to quickly go over for you again so you
could see -- see the exhibits.
A. Right.
Q. First, I have marked Exhibit
16, a photo, that's 103?
A. Yes.
Q. I have marked as 17, a photo,
that's 109?
A. 109.
Q. In the confusion caused by me,
and I apologize, Dr. Lee, this morning I
believe you looked at those two photos and
thought that there were two 209's and you
wondered how could there be two 209's.
In looking --
A. In reexamination, that one is
000103. The other one is 000109, two
different numbers.
Q. We don't have two 209's?
A. You don't have two 209's.
Q. We don't have two 109's?
A. You are absolutely correct.
Just 103, 109.
Q. Right.
And the 103 is Exhibit 16 and
the 109 is Exhibit 17?
A. Yes, correct.
Q. The second point that we just
to make specifically, if we look at Exhibit
17, which is 109, you have circled for us --
there are three blue circles, and the middle
circle is -- and the middle circle is the
second blood drop that we were talking
about?
A. Yes.
Q. And this -- this is a -- if we
were to look at 103, you can also see,
though it's not circled, the second blood
drop on the right-hand side, and maybe you
could put a blue mark around it. It's
fainter.
A. Second blood drop never become
an issue. It's in the picture provide to me
long time ago.
Q. I understand.
A. Is the first drop which I only
have privilege this morning just now before
lunch seeing this picture, the first blood
drop when the picture provide to me.
Q. Right.
We're --
A. And through the defense
attorney it's not there.
Q. Right.
We're looking at the defense
exhibit.
What is that one, Dr. Lee?
A. 1313.
Q. And it doesn't show?
A. Up in here.
Q. Which is maybe a second or
third generation?
A. Generation which --
Q. Wait. Wait. Are you able to
get video. I can't . . .
Go ahead, Dr. Lee.
A. The photograph provided to me
may be a second or third generation. This
area did not show a red blood stain. The
area do show a bunch of leaves -- leaves, a
series leave, trace material. And in this
photo now you don't see him anymore.
Q. That won't be a loss, Doctor.
(Indicating to videographer.)
A. The photography received
through the discovery did not show the
second drop, did show the first drop.
Subsequently, this morning before noon, you
show me this new photograph, No. 109.
Q. Photo No. 109, which is Exhibit
17?
A. 17, which clearly shows a
second drop here. So this could be an
artifact, maybe not, a bouncing light effect
maybe during the reproduction, the sequence
of reproduction, just like I described
yesterday, somehow the image lost during
reprint.
Q. And, Dr. Lee, if we were to
look at Exhibit 16, which is 103 --
A. Yes.
Q. -- we don't have it circled,
that would also show the second blood drop?
A. Yes. It clearly shows the
second drop which is not in here, again,
because in the printing and reproduction,
image disappears.
Q. Would you mind putting a blue
circle around the second drop on what's been
marked on Exhibit 16?
A. More than happy to.
Q. Now, if we can then look at the
photos that were taken, which would be
209 --
A. Yes.
Q. -- two photos, the one in my
right hand is Exhibit 18; is that correct?
A. That's correct.
Q. The one in my left hand is
Exhibit 19, this one?
A. The number you put down?
Q. Yes.
A. 19.
Q. Yes.
And in each of those -- in
Exhibit 18 you've been good enough to circle
the second blood drop?
A. Yes.
Q. And in Exhibit 19 the second
blood drop also shows?
A. Excellent. Yes.
Q. Would you mind circling it in
blue?
A. Yes.
(Witness complies, marks photo.)
Q. And these are the blood drops
that, as you pointed out, because of the
second or third generation photo you
received you were not able to see in the
defense exhibit that was previously talked
about?
A. That's exactly my point. When
I compare these two photographs, one
photograph, previous one, has an image in
the second one, not in the first one.
Today after providing me with
new photography, can see it's here. In
fact, was here. It's not a bouncing light
effect. Again, it's during the
reproduction.
Q. Now, the next area I think we
can do relatively quickly, Dr. Lee, is
the -- the imprint area --
A. Yes.
Q. -- of the testimony.
And is it -- Is it correct that
you've told us that an imprint is something
that could be caused by a large variety of
objects having a similar design to what is
imprinted on whatever surface we're talking
about when we say there is an imprint?
A. Yes.
Q. And cutting through everything,
is it a fair statement that as far as the
Bundy walkway is concerned --
A. Yes.
Q. -- The only -- strike that.
As far as the Bundy walkway is
concerned, other than the Bruno Magli
footprints that have been previously
identified by agent Bodziak and yourself --
A. Yes.
Q. -- the only other imprint on
the walkway that you're able to say with any
scientific certainty is a shoe print has
been marked by you and identified by you in
what's been marked 1337A?
A. That's correct.
Q. And you've been gracious enough
to draw a line around the sock.
A. Yes.
Q. Is it correct -- strike that.
Do you remember, as you sit
here, what tile you saw that parallel line
imprint on?
A. I don't remember. It's been
too long. I don't remember.
Q. Would it be fair to say though,
in terms of cutting through, that you --
your first time at the scene I believe you
told us was June 25?
A. Yes.
Q. In 1994?
A. Correct.
Q. And as you're sitting here, you
don't know if that particular imprint that
you've identified was put on the scene after
the murders or not?
A. I don't know.
Q. Now, so that I'm clear, in
terms of the other imprint testimony which
dealt with the piece of paper, the envelope
and the jeans, am I correct in understanding
your testimony that you're not able to state
with any scientific certainty that any
imprint you might see on any of those
objects are shoe prints other than a Bruno
Magli shoe print?
A. My conclusion with all those
evidence I observed, those are consistent
with bloody imprint evidence. Nothing more,
nothing less.
Q. Have you no idea what caused
them?
A. No.
Q. All right. Thank you.
When you say no, you mean yes,
you have no idea what caused it?
A. No. I mean no, not say yes.
I have no idea.
Q. I see.
A. What's the cause.
Q. Now, you don't -- is it -- Have
you seen -- let me show you what we'll mark
as next in order.
I don't know if you've ever
seen this before, it's Exhibit 21, which is
a blow-up of the sock?
A. Yes.
Q. This purports to be a picture
of the socks as they were found by an LAPD
officer in Mr. Simpson's bedroom?
A. Correct.
Q. Do the socks in your looking at
21 with a microscope appear to be inside
out?
A. One of the socks definite
inside out. The second one consistent with
inside out. Of course, if they have a
proper documentation that day of notes and
description and a better photograph...
Again, this issue, inside out,
outside in, it's not an issue if you do
crime scene procedure correctly.
Q. Now, if the socks were
inside out, as a possible explanation for
whatever was on side 3, that it was a
transference from an individual's finger who
might have been bleeding, who took the sock
off, and when he was pulling the sock off,
and the bottom portion ... as shown?
A. Anything is possible, I did not
study -- I didn't study the mechanism. All
I report is scientific fact. I observe a
half dozen or more red little tiny ball
anchor on the fabric.
Q. But you're not expressing any
scientific opinion on whether those balls
appeared there as a result of someone who
had the socks on, taking them off, or
whether they appeared there because of some
other reason?
A. No. I'm not offering any
opinion. Only opinion I can offer is
somehow the wet blood has to get transfer,
that, and also very limited amount.
Q. Now, how big is the spot you
were talking about seeing on side 3?
Let me step back for a minute.
Whatever you saw, you don't
know whether or not it was even blood
because it was never tested to see if it was
blood; is that correct?
A. That's correct.
Q. And so it's also correct
that -- Strike that.
On side 1 of the sock at the
ankle there was a test of certain of the
blood that was there, and that was found by
Mr. Sims to be Nicole Brown's blood?
A. Yes.
Q. Would it be fair to say that on
side 3 we not only don't know if it was
blood, but even if it was, who's it is?
A. Definite we don't know.
Of course, you can always go
back and test it and see whether or not
that's blood, whose blood it is.
Q. What I was asking, maybe not
too well, on that particular sock you looked
at, was there what a criminalist would call
a transfer of blood on the upper portion of
the sock?
A. Yes. Apparently reports found
some O.J. Simpson DNA? Right.
Q. Right. Okay.
Was there also -- was there not
in addition through a transfer -- what
appeared to be a transfer smear on the top
portion of the sock with Mr. Simpson's
blood, also some of Mr. Simpson's blood
found around the toe area of the sock?
A. Again, said DNA. You cannot
mistake blood.
Q. Okay, DNA.
A. DNA. Because all those areas
been cut, I cannot independently verify. I
have no reason to doubt DOJ -- Simpson --
Mr. Sims' result they found DNA match
O.J. Simpson. So the DNA was found on
socks.
Q. Now, do you know Gary Sims?
A. Yes.
Q. Do you know him to be a
competent, reputable scientist?
A. Oh, yes. Excellent scientist.
MR. LEONARD: Your Honor, can we
approach just a second.
THE COURT: You may.
(The following proceedings were
held at the bench with reporter:)
THE COURT: Page?
MR. LEONARD: It's page 333.
(Mr. Leonard is reading from a
portion of Dr. Henry Lee's
videotaped deposition transcript.)
Q. Do you know him --
MR. LEONARD: Bottom of the page.
(Mr. Leonard is reading from a
portion of Dr. Henry Lee's
videotaped deposition transcript.)
Q. Do you know him to be a
competent, reputable scientist.
A. Yes, oh yes. Excellent
scientist.
Q. Everybody in the case is an
excellent scientist except few --
MR. LEONARD: The remainder of the answer was
cut off.
MR. MEDVENE: The remainder of the answer is
not responsive. But the question -- excuse me,
Mr. Leonard.
The question was with respect to Gary
Sims, do you know him to be competent, reputable
scientist. His answer oh, yes, excellent scientist.
His answer is not responsive to the question we asked
and it wasn't previously designated.
MR. LEONARD: But it's the answer and they
can't just cut out an answer -- part of an answer.
That's not a proper way to designate.
THE COURT: When it relates to Sims.
MR. LEONARD: They didn't object.
THE COURT: Overruled.
(The following proceedings were
held in open court in the presence
of the jury.)
(Videotaped deposition of Dr.
Henry Lee resumed.)
Q. (BY MR. MEDVENE) Let's talk
for a moment if we could about these
swatches.
Would you agree with the
proposition that the threshold between wet
and dry is somewhat fuzzy. Most importantly
dry material does in fact contain some
water. Proteins, for example, bind water
very tenaciously.
Would you agree with that same
statement?
A. I would agree 70 percent of it
and --
Q. Let me ask, sir, if you were
asked on Monday August 28, 1995 --
A. Yes.
Q. -- the following question by
Mr. Goldberg. And let me -- let me step
back, if I might, for a minute.
You participated in a book
called Forensic Science Handbook with
Richard Sapperstein?
A. Yes.
Q. And did Mr. Goldberg in a court
proceeding ask you -- I can repeat the
question, if you want?
A. I think if I search my memory
correctly, he misquote me. That's not my
chapter. He quote somebody else's chapter.
Q. Let me ask you if you were
asked this question --
A. Yes.
Q. -- at page 43143, line 22, and
gave this answer at 43144, line 2.
(During the videotaped deposition
of Dr. Henry Lee, Mr. Medvene read
a portion of the criminal trial
transcript, with examination by
Mr. Goldberg.)
Q. (BY MR. GOLDBERG) Sir, do
you agree with the proposition that the
threshold between wet and dry is
somewhat fuzzy? Most importantly, dry
material does in fact contain some
water. Proteins, for example, bind
water very tenaciously?
A. Yes, agree.
(In the videotaped deposition of
Dr. Henry Lee, Mr. Medvene ceased
reading from the criminal trial
transcript of Dr. Henry Lee.)
Q. (BY MR. MEDVENE) Were you
asked that question, sir, and did you give
that answer to the best of your knowledge on
Monday, August 28, 1995?
A. I vaguely remember the
question. However, if you -- I did not
review the transcript, but read --
continues. The following -- more questions,
I think I said that's not my chapter also.
I agree, as I just indicated,
with the majority.
Q. Is it right?
A. Yeah.
Q. Would you agree, sir -- and
again, I quote:
(During the videotaped deposition
of Dr. Henry Lee, Mr. Medvene read
a portion of the criminal trial
transcript, with examination by
Mr. Goldberg.)
Q. (BY MR. GOLDBERG) The
water content of dried material is in
equilibrium with the fractional
saturation of water vapor in the
surrounding atmosphere, that is the
relative humidity. Thus, for example,
blood drying on equilibrium in air at 25
percent relative humidity may contain
about 5 percent of its total weight in
water.
A. May, yes.
(In the videotaped deposition of
Dr. Henry Lee, Mr. Medvene ceased
reading from the criminal trial
transcript of Dr. Henry Lee.)
A. May, yes.
Q. All right.
Would you agree, sir, that if
the swatches were dried at 75 percent
relative humidity, that the percentage of
water that might remain in the swatches, a
reasonable estimate would be about 20
percent?
A. May. May, yes.
Q. Just a few more, sir.
Is it true that the bottom
line, so to speak, is that after something
is drying it still has to have water in it?
A. Yes.
Q. And would you also agree,
Dr. Lee, that there are a lot of variables
in determining how long it would take
something to dry?
A. Yes.
Q. And that the amount of time it
would require for a blood stain to dry is
dependent upon various factors such as
weather conditions, temperature, air
movement, humidity, size, depth of stain or
blood pool, and the nature of the surface
upon which the blood is shed?
A. Yes. Yes.
Q. And lastly, Doctor, is it true
the reason material such as this was put in
a treatise that you were involved with was
to get across to the forensic science
students to be careful because it's hard to
figure out how long something's going to
take to dry even in the laboratory?
A. That's one point.
Another point is to let the
student know when they collect the evidence,
preserve the evidence, to be very careful,
make sure it's dry. If it's wet, you should
document it's wet.
Q. Well, in terms of what was
wrong, what you're saying is that there
were -- if they were completely dry, there
was a wet transfer?
A. Transfer.
Q. And there shouldn't be?
A. Shouldn't be.
Q. That's all you're talking
about?
A. Yeah, that's all I'm talking
about.
Q. Isn't it true, initially, that
Gary Sims reported this in his notes, I
believe, prior to the time you made your
observations?
A. No.
Q. I'm not saying that you saw his
observations. But at a point in time prior
to the time that you saw the bindles, he
reported in his notes that there were these
wet transfers, both on this bindle and on a
few other bindles?
A. Maybe he should testify on
that, "I observe some wet transfer."
Q. But isn't it true that you're
knowledgeable that he did put that in his
notes of his observations?
A. To give him credit, he
should -- LAPD people should do that first
place.
Q. I understand. I see.
A. Then the whole controversy
would be resolved.
Q. I see.
But I guess where we are, to
your knowledge, to give him credit, if
that's the appropriate word, he did report
the transfer prior to the time that you
reported it; isn't that true?
A. I have no idea who found it
first or second. I did my own
independent --
Q. I see.
A. -- study, observe that.
Q. But you're aware, are you
not -- and I'm not trying to quarrel with
you.
A. Uh-huh.
Q. You're aware, are you not, that
Mr. Sims also found the transfer and
reported it in writing?
A. In his notes. He did not
report that in his laboratory report.
Q. He reported it in his notes,
did he not?
A. No. He documented in his note.
That's one thing. You report it in your
writing, like my report -- laboratory
report. I noticed wet transfer, that's in
report. Report it in writing.
Q. Where did he report it?
A. He did not report. He document
in his notes.
I don't -- I did not watch his
testimony. If he testifies, say I observe
this wet transfer, then he report in his
testimony.
I did not read his laboratory
report. In other words -- I assume he
issued a lab report. If he said, Item 47, I
found wet transfer, that's called report in
writing.
Q. To the best of your
knowledge --
A. Somebody can say, well, I
observed, but I kept in my mind. You still
say somebody observed.
Do you see what I mean?
Q. Isn't it true that, to the best
of your knowledge, Mr. Sims wrote down --
A. Document in his note.
Q. -- that he documented in his
notes --
A. Yes.
Q. -- the transfer, and those
notes were turned over to Mr. Simpson's
counsel?
A. I guess so.
Q. You know that, don't you,
Doctor?
A. Yeah, I guess so. Turned to
which one...
Q. He has so many.
But to one of them?
A. One of them.
Q. Okay.
A. Too many of them.
Q. And you do know that?
A. I know that. Of course I know
that. I read the notes. This morning, you
show me the note again. Yesterday,
Mr. Baker showed me the note. Of course I
know the note.
Q. All right.
Isn't it true also, to your
knowledge, that there were -- there was
another bindle, I believe, bindle 42 --
A. Yes.
Q. -- where there was a wet
transfer?
A. Yeah. 42 also a wet transfer.
42 much easier to explain because the
pattern perfect match.
Q. Let me step back for a minute.
A. Yes.
Q. On 42 where there was a wet
transfer --
A. Yes.
Q. -- this is something that, and
I -- right, it should not have occurred if
the swatches were completely dried when they
were taken from the test tube and put in the
bindle?
A. Right.
Q. But -- and the way -- strike
that.
The ordinary procedure is to
transfer the swatches once they're dry?
A. Yes.
Q. So here, once again, there's
someone apparently thinking the swatches are
dry when they weren't because they have the
transfer in bindle 42?
A. Yes.
Q. And bindle 42, to the best of
your knowledge, when it was analyzed, was
Nicole Brown's blood?
A. I guess so.
Q. And there is no question
that -- strike that.
There is no reason that you
would know of why somebody would try to
plant Nicole Brown's blood on a particular
swatch since she was the victim of this
murder; isn't that right?
A. How do I know.
There are so many people, so
many things happen. This is not a fair
question to ask me.
Q. But --
A. In the past we have had some
law enforcement officers plant evidence for
no reason.
Q. But you have no scientific
evidence to support any statement that in
this case a law enforcement officer --
A. No.
Q. -- planted any evidence?
A. By all means, no, I have no
independent knowledge. I only report
scientific fact.
Q. All right.
A. I see the wet transfer and
didn't matter whatever way you cut it,
something wrong, either in that document or
that drawing, they just did not meet the
standard.
Q. What you're saying -- and I
think we're done --
A. Yes.
Q. -- is that, by all means,
you're not saying you have any scientific
fact to show that any LA police officer
planted or did anything, cheating, with any
evidence?
A. I did not testify.
Q. All right.
So that statement is correct?
A. Correct.
Q. Now, in connection with your
testimony here the last couple days, what
did you do to prepare yourself for the
testimony?
A. Not much.
Q. When you say -- When you say
not much, did you have any meetings with any
of the attorneys for Mr. Simpson or with
Mr. Sheck?
A. I just got back from China,
Taiwan and Japan, as you probably know, so
unless they show up in other country, not
much. The day before the testimony I met
previously with Mr. Baker -- attorney Baker
and Mr. Sheck, told about what time to
start.
Q. When you say you met briefly,
when was it that you met with them, was
that -- your testimony was on -- starting on
Saturday?
A. So Friday night.
Q. You didn't meet with them until
Friday evening?
A. Evening, late afternoon, or
evening.
Q. And about how long did that
meeting take place?
A. Pretty short because I have to
rush to another engagement. I don't look at
time.
Q. I understand.
Would you say more or less than
three hours?
A. Probably.
Q. About three hours?
A. Three hours, three and a half,
two and a half. Doesn't really matter.
(Videotape is halted.)
(Pause.)
(Videotaped deposition of
Dr. Henry Lee resumes being
played, with Mr. Baker examining.)
REDIRECT EXAMINATION
BY MR. BAKER:
Q. Dr. Lee, let me go back to this
drying.
I want to read what was said in
your transcript on August 28, 1995, because
maybe it was misread to you. Page 43142 in
the criminal trial transcript
(During the videotaped deposition
of Dr. Henry Lee, Mr. Baker read a
portion of the criminal trial
transcript.)
Q. And is that because there
is a threshold between wet and dry --
strike that.
And is that because the
threshold between wet and dry is
somewhat fuzzy.
A. Wet and dry. That's not
fuzzy at all.
Q. Whether wet or dry, but
they are in between, damp, not soaking
wet. What's the definition of the wet,
what kind of -- you get into a semantic
issue.
THE COURT: Can you hold up a minute.
Where are you?
MR. P. BAKER: 325.
MR. MEDVENE: 357.
MR. LEONARD: 357.
MR. P. BAKER: It's the redirect.
MR. MEDVENE: Right now, 357, line 11.
THE COURT: Okay. Thank you.
(Mr. Baker read an answer given by
Dr. Lee from a portion of the
criminal trial transcript.)
A. If it is not dry. Anything
else I call wet.
(In the videotaped deposition of
Dr. Henry Lee, Mr. Baker ceased
reading from the criminal trial
transcript of Dr. Henry Lee.)
Q. (BY MR. BAKER) Was that your
testimony back in August 28, 1995, of the
criminal trial?
A. Yes.
Q. Now, Dr. Lee, in a laboratory
procedure, the conditions are somewhat
constant, are they not?
A. Yes.
Q. Now, Mr. -- strike that.
Dr. Lee, you heard Mr. Medvene
ask you some questions about the sock being
inside out, did you not?
A. Yes.
Q. And did you also determine --
well, strike that.
And the proposition that was
proffered to you was basically if
Mr. Simpson had blood on his hand or finger,
and pressed side 3 of the sock that was
outside -- strike that -- that was inside
out, that that could account for the blood
that you found when you examined the socks,
correct?
A. Correct.
Q. And for that to have taken
place --
MR. LEONARD: 363, Your Honor, line 10.
Q. (BY MR. BAKER) The area cut
out on the sock -- on sides 1 and 2 would
have -- in other words, the blood on side 1
and 2 was in the exact same position as you
found red balls on side 3, correct?
A. Should be similar position. If
press hard enough side 4 should have some
blood stain, too.
Q. And so it would have to be a
coincidence if Mr. Simpson put blood on side
3 when the sock was inside out in the
amazing same spot that had a cut out
previously by someone in the sock that you
examined, correct?
A. Correct.
Q. Now, Mr. Medvene talked to you
about, and I don't know if I can get there
with this . . . talked to you about --
Where did you put that other
exhibit?
(Pause in tape.)
MR. P. BAKER: 366.
THE COURT: Where are you going now?
MR. P. BAKER: 366. 367, line 7.
THE COURT: You already read that, didn't you.
THE COURT: 367 from line 4 through 10 was read
the first time around.
MR. P. BAKER: We didn't get to the redirect.
THE COURT: Huh?
MR. P. BAKER: We haven't played any of the
redirect yet.
THE COURT: Oh, okay.
MR. BAKER: Phil, back it up.
(Pause.)
Q. (BY MR. BAKER) That would --
you mean you found a parallel line pattern;
is that correct?
A. Yes, sir.
Q. And got 70 plus pairs of shoes
with a parallel line sole on them
subsequent --
(Tape halted.)
MR. PETROCELLI: That was sustained, that area.
THE COURT: The second part was sustained. The
Court overruled it to line 10.
Line 11 is sustained.
(Tape resumes playing.)
(Tape halted.)
MR. BAKER: Phil's future is not in the
entertainment world, not in editing.
THE COURT: Not in editing.
MR. P. BAKER: Okay.
MR. FOSTER: Page 368, line 11.
MR. LEONARD: 368, 11.
(Tape resumes playing.)
Q. (BY MR. BAKER) The envelope,
correct?
A. This is the envelope.
Q. And if we look at the lower
right-hand corner we see where Mr. Goldman's
body is, correct?
A. Correct.
Q. And the envelope is directly or
pretty much --
MR. PETROCELLI: That was all supposed to be
stricken, too, Your Honor,
MR. BAKER: I didn't think this was stricken.
THE COURT: There was no objection to 368 --
well, strike that. 368:06 through 369:07 was
sustained.
Let's take a 10-minute recess. I
understand you have the copy of the minute order to
assist you. Okay.
(Recess.)
(The following proceedings were
held in open court outside the
presence of the jury.)
MR. KELLY: Judge, one matter just before -- in
anticipation of Mr. Simpson taking the stand.
Back in September, as a result of the
defendant's motion in limine No. 3, this Court had
ruled that plaintiffs could not put Mr. Simpson's
character in issue, specifically forbid us to go into
any allegations of purported drug use or infidelities
of Mr. Simpson unless, of course, he put his character
in issue.
Mr. Baker in his opening statement and
subsequent to that, he's given some indication that he
would put Nicole Brown's Simpson character in issue
even though we have not in our case thus far. He's
brought up mention of in his opening statement in
particular the parties, visiting with prostitutes,
heavy drug users into the home, being with a lot of
different men, allegations of purported drug use,
excessive drinking, erratic behavior and also mention
of a terminated pregnancy after separation from
Mr. Simpson.
We've heard no evidence of that thus far,
and I suspect that he may try to put this in through
Mr. Simpson's own testimony.
It's my position, Judge, that first of
all, these things are totally irrelevant, that there's
been no evidence presented that in any way would
indicate that Nicole Brown Simpson's lifestyle or
character or any of that had anything to do with these
murders.
Secondly, Mr. Simpson alone is the only
one who has testified as to any purported drug use or
excessive drinking of Nicole Brown Simpson. He based
that only on conversations he had had with Nicole, and
clearly she's not here to defend herself with regard
to that.
And finally, Judge, if this is put in
issue, we have a number of witnesses, and all the
depositions taken to date, indicate nothing but Nicole
Brown Simpson was simply a wonderful person, and we're
going to be forced to bring in a parade of witnesses
to testify as to what a good person she was if
character is put in issue.
And we think that would be an undue
consumption of the Court's time and certainly
misleading to the issues of fact.
And all I would ask at this time is to
reenforce the Court's ruling of the other day that no
allegations of drug use or excessive drinking of
Nicole Brown Simpson be put into issue, certainly not
any of her alleged romantic interests after her
separation from Mr. Simpson, and specifically the
defense be barred from any testimony regarding the
purported terminated pregnancy. It's just not
relevant to any of the issues, Your Honor.
MR. BAKER: Your Honor, this was -- these
issues were raised by plaintiffs. They were raised by
the plaintiffs by saying that Mr. Simpson was in a
jealous rage when these murders took place, and
indicating to this jury that that's the cause of the
rage, is that he had this thing for Nicole that he
couldn't get over.
This goes to the issue -- the very issues
amounting to their relationship. He put their
relationship in issue in opening statement. It's been
an issue in the whole case. And it will, I assume,
continue to be an issue through final argument.
Now, I'm certainly entitled to combat
that issue with the testimony of my client, and I
intend to do so.
And had they not talked about the
relationship between my client and Nicole, it wouldn't
have come in ever because it wouldn't have been
necessary.
They have bandied that about for four
months.
I obviously have to defend on that issue,
and intend to.
MR. KELLY: Your Honor, it's not the
relationship. It's the specific issues I've
mentioned. You'll -- it's alleged drug use or
excessive drinking or her romantic interests. And,
first of all, we didn't put these issues before the
jury, before the Court, or at issue at all. What we
put at issue was possibly the relationship, which
Mr. Simpson certainly allowed to comment upon, but
the -- these specific things Mr. Baker mentioned in
his opening occurred before the reconciliation. Even
so, it has nothing to do even in terms of a
non-motive, in terms of that, Your Honor, these are
all '92 incidences, early '93 incidences, even before
the reconciliation, so they have no bearing on the
relationship or non-motive for that affect, Your
Honor, and it's just -- it's just not relevant to the
killing. We have put nothing forward that suggests in
any way it has anything to do with these killings, nor
has the defense in their part of the case also, Your
Honor.
MR. BAKER: Drug use and drinking goes to the
erratic behavior that Mr. Simpson will testify to.
And that was a problem and concerned him and he talked
to Juditha Brown about it. He raised that issue with
Juditha Brown in all the telephone calls. The
relationship -- I mean we have spent basically three
weeks on an incident of July 1, 1989 --
MR. KELLY: January.
MR. BAKER: January, I'm sorry. And to an
outsider, you would think that's the incident we're
here on trial on, and of course that was some five and
a half years before these murders took place. That
seemed to be terribly relevant.
1984 incident in the relationship seemed
to be terribly relevant.
And the romantic interest -- they say he
was extremely jealous and he was in a jealous rage.
The incident that took place to her romantic interests
is that he had, for example, the incident that he
witnessed, I mean he didn't go into any rage, he
didn't go into the house and go into a rage.
These the jury's entitled to hear.
They've raised them and trumpeted them throughout the
country. Now it's time for Mr. Simpson to explain.
MR. KELLY: Your Honor, with regard to the
incidences of violence, that's a separate issue
supported by P V. Zack.
With regard to the specific things -- as
I say, they're way before the reconciliation, and the
only thing I can add, if Mr. Simpson is going to
testify to these things in terms of a non-motive or
would be a reason for him not to have these strong
feelings towards Nicole Brown Simpson or commit the
murder, we should in fact be then allowed to bring in
evidence of any purported drug use of his or
infidelities or romantic interest he may have to show
it wouldn't provide a non motive for motive for him,
and the whole character issue should be front and
center.
THE COURT: It would be nice if you would bring
these things up in a timely fashion when we have time
to address these things instead of right in the middle
of taking evidence on something else.
MR. KELLY: Judge, I didn't know if we'd have
another break. That's why.
THE COURT: We had a whole day where we did
nothing. Remember? Or were you in town?
MR. KELLY: I was in town.
The issue was raised just the other day
with Mr. Tippin again, and I wanted to reenforce it.
THE COURT: We sat here and did nothing all
day.
MR. KELLY: Excuse me?
THE COURT: We did nothing except --
Mr. Petrocelli came in with Levi's on.
MR. KELLY: I can't be responsible for his
dress code.
THE COURT: Then Mr. Baker and Mr. Petrocelli
came in with matters. Why do you do it now? Right in
the middle when we're trying to finish other matters?
MR. KELLI: I thought it was important before
Mr. Simpson takes the stand and I felt it was --
THE COURT: Do it in a little more timely
fashion, please.
I'll reserve judgment on it.
Bring the jury in.
Let's finish this video examination. Get
it out of here.
THE BAILIFF: Jury walking.
MR. PETROCELLI: They were blue jeans, Your
Honor, Guess jeans everyone.
(Laughter.)
MR. P. BAKER: Judge, the transcript starts on
369, line 13, through to 374, line 15.
THE COURT: 369?
MR. P. BAKER: Line 13, through 374, line 15.
That's the end of the defense, and they
have a couple more questions and that's it.
THE COURT: By the way, are you going to file
any responsive pleadings?
MR. PETROCELLI: Yes, Your Honor.
THE COURT: When?
MR. PETROCELLI: Monday morning, first thing.
We just got them late yesterday and
they're very thick and we're here in court.
THE COURT: I read them.
MR. PETROCELLI: You ready to rule?
THE COURT: Well, what I'm trying to get at
is --
MR. PETROCELLI: Well --
THE COURT: -- you got a whole staff of
lawyers. I don't know why these things come the way
they do.
MR. PETROCELLI: It's a big stack of papers at
the end of the day yesterday and I was working very
late last night.
THE COURT: I got that second paper in the
morning. Didn't you get it in the morning?
MR. PETROCELLI: No, we did not.
MR. BAKER: I --
MR. PETROCELLI: We got in the afternoon.
MR. BAKER: I put it on the desk at the -- at
1:30, the same time it was given to the Judge.
MR. PETROCELLI: I didn't get it.
MR. BAKER: Yes, it was --
THE COURT: We're --
MR. BAKER: I'm in court 8:30 to 4:30. If you
want we can argue --
THE COURT: Mr. Gelblum was not here this
morning.
MR. GELBLUM: I was not sitting at the beach,
Your Honor. I was working very late myself.
MR. LEONARD: He was looking for the fourth
book.
MR. PETROCELLI: Prepared to argue the
rebuttal -- the rebuttal case at any time, Your Honor.
THE COURT: You know, Monday's a little bit
late. These are not new issues.
MR. PETROCELLI: Prepared to argue the Fuhrman
one and the rebuttal one at -- we'll just -- we'll
argue it orally, Your Honor.
THE COURT: Okay.
MR. BAKER: The rebuttal one will be --
MR. PETROCELLI: The McKinney one, we have time
to look at all the references that they're talking
about. We can argue the law on all of them if you
like.
THE COURT: All right. Fine.
MR. BAKER: The rebuttal one would then be
helpful, if we could argue that today, Your Honor.
THE COURT: Bring them in.
(Jurors resumed their respective
seats.)
MR. PETROCELLI: 1:30, Your Honor, right after
lunch, first thing?
THE COURT: Maybe sooner.
MR. PETROCELLI: Okay.
THE COURT: Okay.
Play it.
(Tape of deposition of Dr. Henry
Lee resumes playing.)
Q. (BY MR. BAKER) And we have
just looked at where the location of the two
bodies of the murder victims were.
And then as we -- let's zoom
and I'll show you one other diagram so that
we can hopefully get oriented relative to
time and place.
Let me put up first this
diagram which was the prosecution's in the
criminal trial and it's 593.
(Criminal trial Exhibit 593
displayed on video.)
Q. (BY MR. BAKER) You see the
logo down here, the directional logo?
A. Yes.
Q. Now, that would indicate, would
it not, that the area behind the body of
Mr. Goldman was north?
A. Yes.
Q. Now, there is -- Mr. Medvene
suggested to you that there was -- he called
this the north -- the back gate area?
A. Yes.
Q. There's no gate there, is
there?
A. Fence.
Q. All right.
So let's call that the north
fence area. May we?
A. Sure.
Q. All right.
And then let's call the area
where I am pointing the east fence area.
Fair enough?
A. Fair enough.
Q. All right.
And if we look at the Exhibit
593 again, the piece of paper was over by
what is drawn the head of Nicole Brown
Simpson's body, correct?
A. Correct.
Q. The envelope was in the area on
the dirt area adjacent to the walk, correct?
A. Correct.
Q. The keys that we see in this
photograph, which is third from the top in
this, is at the foot of Mr. Goldman's body,
true?
A. True.
Q. And the beeper that we see in
the upper left-hand photo in the second
photo on the left would be back behind the
area -- behind the tree area, is that not
correct, and to the west of it?
A. Behind the post, yes.
Q. All right.
And we have a post that looks
like it's stabilizing that tree, correct?
A. Correct.
Q. And from your view of the
scene, is this green area right at the head
of Mr. Goldman's body the area where the
tree comes up, that the post is directly
behind it or on the north side of it?
A. Maybe, maybe not. I don't
know.
Q. In any event, we have blood
transfer in the pictures we have available
all the way down the east fence area, do we
not?
A. Yes.
Q. Well, certainly we can see
blood transfer almost to the corner and we
see a drop in the upper right-hand corner,
correct?
A. Correct.
Q. And we don't know what's above
that because nobody ever took any pictures
of it, true? In addition to the blood going
down the east side, we have blood going on
the north side of the fence past the area
where the pole is, correct?
A. Correct.
Q. And we have a significant
amount of blood that's past the area of the
pole, do we not, on both sides, on the
Nicole Brown Simpson property and on the
Ellinger property that's adjacent to it,
isn't that true?
A. Yes.
Q. And we have a depression that
extends from the -- virtually the corner of
the northeast side of the enclosed or
caged-in area that extends beyond the tree
for another however distance and then there
is another area that has blood dripping down
on the fence and down on the dirt on both
sides of the fence, correct?
A. Yeah, consistent with --
Q. Is all -- then we have fresh
leaves that you've talked about, we have
bloody leaves and we have blood in the area
of the tree, do we not?
A. Yes.
Q. Now, is that consistent with --
with -- the envelope being in the position,
the piece of paper being in the position
over by the head, the envelope being in the
position adjacent to the walkway, blood down
the east side, depression in the area, I'm
talking about keys here, beeper over here,
and blood on the north side, is that all
consistent with a struggle that -- as well
as the dead leaves and the blood that's on
the ground, that takes a period of time?
A. It's all related -- if it's all
related, it consistent with the struggle.
Q. And we also have blood on the
shoes and we have on the boots of
Mr. Goldman, that is subsequently then
encased in dirt, correct?
A. Yes, sir.
Q. And that means that he had to
step into wet blood and then step into dirt,
correct?
A. Both.
Q. And then we have, in addition
to that, sir, we have a cut -- fresh cut on
the toe of Mr. Goldman's boot that is
consistent with a fresh knife cut, correct?
A. Correct.
Q. And in addition to that, we
have a beeper that is -- would appear more
probably than not outside the fenced-in
area, correct?
A. It appears to be.
(Tape halted.)
MR. P. BAKER: End of defense redirect.
We -- they just have a couple more
questions.
MR. MEDVENE: If the Court please, we've agreed
with Mr. Baker, we have one question to read and an
answer, to put -- a brief question and answer that's
going to be played in context.
381, line 4 through 11.
(Reading:)
Q. So, Dr. Lee, with due
deference, you're not suggesting, are
you, that because you didn't get to do
the work that you indicate you suggest
that the L.A. Police Department and the
Federal Bureau of Investigation and the
various scientific agencies that were
involved in analysis here, were not
perfectly capable of solving the crime
and presenting adequate evidence?
A. I cannot comment on that
issue.
(Tape is played.)
Q. Are you saying -- when you say
you cannot comment on it, Doctor, are you
suggesting that by taking, for example,
different pictures than were taken, the DNA
results showing Mr. Simpson's blood,
Ms. Brown's blood, Mr. Goldman's blood at
various locations of the crime scene would
be in any way changed? You're not
suggesting --
A. No, I'm not suggesting that.
MR. MEDVENE: There's nothing further now.
(Tape is halted.)
MR. LEONARD: A brief reading, Your Honor.
Your Honor, this is the deposition of
Gary Siglar taken on May 14, 1996, May 21 and May 23
of 1996, by me. Page 4, line 1.
(Reading:)
(Reading of deposition of Gary
Siglar, questions being read by
Mr. Leonard and answers being
read by Mr. P. Baker.)
Q. Would you state your name
for the record, spelling your last name,
please.
A. It's Gary, middle initial
L, Siglar, S-i-g-l-a-r.
Q. Where are you presently
employed?
A. Los Angeles County
Department of Coroner.
Q. What is your present
position there?
A. I'm a supervising
criminalist II, Roman numeral -- number
II.
Q. How long have you held that
position including that designation?
A. Well, I've held the
designation since about 1980 when I was
employed with the sheriff's department.
Q. Okay.
A. And I've been with the -- I
was chief of the laboratories division
when I came to the coroner's office in
1982, and now my current position is the
one I held at the sheriff's department.
Q. Let's go back through that
in a little bit more detail.
When did you join the
coroner's office?
A. May of 1982.
Q. When you first joined the
coroner's office what was your position?
A. Chief of forensic
laboratories.
Q. What was your next position
after that, and if you can, give me a
date?
A. Forensic science consultant
was the next position, and -- let's see.
Q. As best you can recollect?
A. I think I was in that
position up until about three years ago
and I held that position for about three
years, so it would be six years ago, up
until three years ago.
Q. So you held the position
from 1982 until approximately what --
A. No.
Q. I am going to let you do
the math.
A. No, 1982, when I came over,
I was chief of forensic laboratory.
Q. Until?
A. I became forensic science
consultant about six years ago. So that
would be about 1990.
Q. Okay.
A. Through 1993.
Q. In 1993, what was your
position?
A. Supervising criminalist 2.
Q. Now, you say that prior to
joining the coroner's office, you worked
for the sheriff's --
A. Yes.
Q. -- department?
A. Yes.
Q. When did you first start
working for the sheriff's department?
A. November of 1970.
Q. What was your first
position there?
A. Criminalist.
Q. Any designation?
A. No.
Q. Criminalist?
A. I believe at the time it
was known as criminalist 1. Now called
criminalist. But it was criminalist 1.
Q. In general terms, what were
your duties and responsibilities?
A. I worked in all sections of
the laboratory, blood alcohol testing
section, the physical evidence, trace
evidence section, narcotics analysis
section. There is another section, I'm
leaving one out -- oh, the serology
section.
Q. Again, in general terms,
what did you do in those sections?
A. I did analytical work and
corresponding courtroom testimony on my
findings.
Q. Prior to joining the
sheriff's department in November of
1970, had you ever worked as a
criminalist?
A. No.
MR. LEONARD: Over to page 122, line 5, still
from the first volume.
MR. P. BAKER: Okay.
MR. LEONARD: (Reading:)
Q. Focusing just for a minute
on the Simpson-Goldman case, was there a
criminalist response team involved in
that case?
A. No criminalist responded on
that case.
Q. And just so the record is
clear, that's from the coroner's office
criminalist response team.
Q. Ratcliffe responded?
A. Correct.
Q. And another gentleman by
the name of John Jacoby?
A. John Jacoby.
Q. Who are they?
A. John Jacoby is one of the
police. He's the gentleman that
releases evidence to the crime labs.
Q. So he was under your
control?
A. Yes.
Q. Okay.
A. Wait a minute.
No, he wasn't assigned to
me at that time, I don't believe. I
believe it was after that. Yes, it was
after that.
No. At that time, he was
working in the morgue management
section.
Q. And what was his exact job
title, if you know?
A. Student worker.
Q. Now he works for you?
A. Yes.
Q. What is his job title now?
A. The same.
Q. He's still a student
worker?
A. Yes.
Q. Do you have any idea how
long he had been working for the
coroner's office prior to June 12, 1994?
A. I mean, it's a hunch. I
think it's around -- possibly around a
year.
Q. When you -- that's a guess,
you say?
A. That's a guess.
Q. With regard to Ratcliffe,
what was your job title on
June 12, 1994, if you know?
A. Coroner's investigator 2.
Q. Was she a criminalist?
A. No.
Q. Explain to me the
difference between a criminalist and a
coroner's investigator.
A. A coroner's investigator is
a person that has some college
education, but a degree isn't required.
But they investigate the circumstances
of the scene, and act as the eyes and
ears of a doctor, because we can't
afford to send doctors out on every
crime scene, and so they act on their
behalf. And they may seal a house for
the next of kin; they examine the body
and may bring in personal property. And
they supervise the coroner's aspects at
a scene. Doesn't have to be a homicide,
any scene. A criminalist is trained in
the natural sciences and is taught to
apply the natural sciences to the
identification and comparison of
physical evidence.
Q. As of June 12, 1994, did
coroner's investigators have any
responsibilities for the collection of
physical evidence at crime scenes?
A. They're qualified to
collect some physical evidence at crime
scenes, not all.
Q. How about a student
working, such as Mr. Jacoby, in the
morgue management section? Did he have
any responsibility as of June 12, 1994
with the collection of physical evidence
at a crime scene?
A. No.
Q. To your knowledge, did
Mr. Jacoby have any training whatsoever
in the preservation of a crime scene as
of June 12, 1994?
A. No.
Q. To your knowledge, did
Ms. Ratcliffe have any training
whatsoever in the preservation of a
crime scene as of June 12, 1994?
A. I believe she did.
Q. Why do you believe that?
A. She has worked closely with
the criminalistic staff, and she has a
technical degree in one of the sciences,
and for a while, was working hand in
hand with our criminalists. And I
believe she has some training in that
area.
Q. You mentioned that a
criminalist response team was not
involved in the Goldman -- let me read
the question.
You mentioned that a
criminalist response team was not
involved in the -- a coroner's
criminalist response team, was not
involved in the Goldman/Simpson case; is
that right?
A. That's right.
Q. Do you know why?
A. Because the investigators
that were involved did not call out for
a criminalist.
Q. And no DME, deputy medical
examiner, was involved at the crime
scene in the Goldman/Simpson case; is
that correct?
A. That's correct.
MR. LEONARD: Over to 128, line 9.
(Reading:)
Q. But you think it was a
problem that criminalists were weren't
called out, correct?
A. It would have been
appropriate for a criminalist to respond
to this case.
MR. LEONARD: Over to 129, line 1.
(Reading:)
Q. Why, in your opinion, would
it have been appropriate for a
criminalist to be called to this
particular crime scene?
A. In general, because it was
a double homicide, and fairly complex.
And we can't respond with the -- with
criminalists to every scene, either,
every homicide. But depending on the
circumstances, it's a judgment call.
Q. To your knowledge, were
criminalists available to be called to
this crime scene?
A. Yes.
Q. Okay. Over to page -- we
have to go to the -- I think it's the
second volume, page 359.
A. Okay.
Q. In the first section of
your deposition, you talked about a
ten-hour delay. Do you recall that?
A. Yes.
Q. What is your best memory as
to the delay?
A. Ten.
Q. What do you mean? I take
it late call-out means just another way
of talking about the delay, right?
A. Right.
Q. Now, what is liver
temperature?
What relationship, if any,
does that have to a late call-out?
A. Well, that's an example of
a time-sensitive measurement that the
coroner makes.
Q. So what are you saying is
that, the efficacy of the
liver-temperature analysis is affected
by delay in time in doing it; is that
correct?
A. The liver measurements,
yes.
Q. The longer from the time of
deaths the measurement is undertaken,
the less accurate it is, or the less
helpful it is, correct?
A. Correct.
Q. And what is the purpose of
taking liver temperature?
A. To help the DME in
determining the time of death.
Q. In this case, the liver
temperature was taken at least ten hours
after the death, correct?
A. Yes.
Q. At least?
A. At least.
Q. Okay. And that's
inappropriate, correct?
A. Correct.
MR. LEONARD: Back to page 13, line 7.
(Reading:)
Q. And during your tenure at
the sheriff's department, was there a
department called the Scientific
Investigation Department or Division?
A. SID is the equivalent
organization within LAPD called
scientific services Bureau, SSB.
Q. Are you familiar with the
SID, in general terms, at LAPD?
A. Yes.
Q. Just tell me, what does
that department -- what do they do?
What are their normal
functions, if you know?
A. Well, one of their major
functions, the one I know the most
about, is their criminalistics
laboratory, the -- one of the elements
of SID.
Q. Anything else you are
familiar with that they do?
A. Their firearms
identification section is in SID. I
believe their polygraph is. I'm not too
sure about the other functions.
Primarily criminalists.
Q. Skipping for a second, in
1994, in your position with the
coroner's office, would you be in
contact regularly with representatives
of the of the LAPD's SID?
A. On an occasional basis, not
regularly, except -- one of my sections
is the evidence handling section. And
they were in contact frequently with the
evidence people over there.
Q. Is it fair to say that the
SID section of the LAPD department would
be the section that would normally be in
contact with the coroner's office to
pick up evidence?
A. Yes.
Q. And that would be the
normal practice?
A. Yes.
Q. And that has been your
experience in the time that you've been
with the coroner's department; is that
correct?
A. That's correct.
Q. Okay.
MR. LEONARD: Back over to 327.
And that would be in the second volume?
MR. P. BAKER: I've got it.
MR. LEONARD: Got it?
(Reading:)
Q. I want you to take a look
quickly at item B on exhibit 1032-C. It
indicates, quote: "EDTA typing blood."
Number one, quote: "Both vials were
refrigerated," parentheses, his -- Oh,
end of parentheses, "prior to release to
Detective Vannatter by me." End of
quote.
A. Yes.
Q. What does that indicate?
Why did you put that in
this memo?
A. I know what it means. I
don't know why I put it in there.
Q. Well, first of all, let
me -- let me ask you what it means in
lay terms.
A. It means that the EDTA
whole blood for typing were contained in
the histopathology laboratory
refrigerator, and that I released them
to Vannatter.
Q. There's a heading, EDTA
typing blood. What does that refer to?
A. That -- that's the status
of the EDTA typing blood; that is what
happened to them.
Q. In other words, both vials
were blood that contained EDTA?
A. Correct.
Q. And those were turned over
directly to Detective Vannatter by you?
A. Correct.
Q. There's no question in your
mind about that, right?
A. I remember.
Q. You remember distinctly
don't you?
A. Yes, I do.
Q. Because that is something
that usually doesn't happen, correct?
A. Correct.
Well, yes, it does usually
happen.
Q. Okay.
A. We routinely release EDTA
blood to the crime lab.
Q. Oh, I understand that. But
you testified earlier that you routinely
release evidentiary items such as EDTA
typing blood to the SID section, to the
LAPD correct?
A. Most, eventually.
Q. That is by far the most
frequent at the LAPD that you released
these types of things to; isn't that
fair to say?
A. It's by far the most
common.
Q. Right.
A. But it's not rare that we
release it to a concerned detective.
That's not a rare, isolated event. It's
not frequent, but it happens.
Q. But the typical, normal
procedure would be for the SID to come
over and pick up something, like an EDTA
typing blood sample correct?
A. Yes.
Q. Well, I want to you take a
look at what I'm going to mark, the
following group of documents. I've got
364 A and B. We will get to the bottom
of it.
I would like you to take a
look at what has been marked as 1037.
Just count the pages, so I can represent
for the record how many there are,
please.
A. Five.
Q. That is a five-page
document, at least as I put it together,
and we are going to ask you some
questions about that.
Take a look at it right now.
A. Okay.
Q. Have you had a chance to
look at what is marked as 1037?
A. Yes.
Q. First of all, I have put it
together in any kind of proper order, if
you know what I am talking about?
A. Yes.
Q. Good. That's half the
battle.
A. Yes, it's in sequence.
Q. What is this 1037?
A. The top page is the autopsy
evidence log.
Q. And just in real general
terms, what is that?
A. It's an accounting of what
was checked at autopsy, in this case,
Goldman.
Q. But some of these
subsequent pages also deal with Nicole
Brown; is that correct?
A. Yes.
Q. All right.
And at the top page is the
autopsy collection looking relative to
Goldman, correct?
A. Correct.
Q. The next page is an
evidence log, or portion of evidence log
relating to?
A. Ronald Goldman.
Q. What is an evidence log?
A. It's the master log for all
the evidence in the department, how it's
released and who it's released to.
Q. It shows when it came in,
right?
A. Right.
Q. Who collected it, right?
A. Correct.
Q. When it was collected?
A. Right.
Q. What was done with it in
the coroner's office, correct?
A. Correct.
Q. Where it was stored?
A. Correct.
Q. Who did what with it in the
coroner's office, right?
A. Yes.
Q. And then, ultimately, to
whom it was released?
A. Yes.
Q. And by whom it was
released?
A. Correct.
MR. LEONARD: Skipping over to 333.
(Reading:)
Q. First I want to you look at
the evidence log with Goldman, and I
misspoke here. I meant Nicole Brown.
Where it says Simpson, I meant Nicole
Brown Simpson.
I am going to ask you this
question: Is it true that, except for
the typing blood samples, but Goldman
and Brown, every other item of evidence
that was turned over to the LAPD was
turned over to the SID?
If I am incorrect, please
just let me know.
A. Yes.
Q. The answer is yes?
A. Yes.
Q. And those two items, the
typing blood samples for Nicole Brown
Simpson and Ron Goldman, were, in fact,
turned over not to SID, but Detective
Phillips?
A. Correct.
Q. What date was that?
A. 24th, which is the whole
blood.
Q. Yes. Well, the items that
were turned over to Vannatter, first of
all, for Goldman, what is the date that
it was turned over?
A. June 15, '94.
Q. With regard to Brown or
Simpson?
A. Same date.
Q. Okay.
Is there a time on there?
A. 8:45 in the morning.
Q. For both, right?
A. For both.
Q. And you were the individual
that actually turned them over to
Vannatter, correct?
A. Correct.
Q. Prior to June 15, 1994,
when is the last time you had turned
over blood typing such as that to a
homicide detective?
A. I don't think I ever
released any whole blood to anybody at
the coroner's office, to anybody,
besides this case.
Q. I didn't understand your
answer.
A. I don't --
Q. Let me make sure the
question is clear.
Prior to June 15, 1994,
when was the last time, if any, you
recall turning over this type of, what I
am going to call blood sample, to a
homicide detective?
A. I don't believe I did.
Q. With the LAPD, you have
never done that before?
A. I don't think so.
Q. Are you aware of anyone
else in the evidence section -- is that
a fair statement, fair description?
A. Yes.
Q. When is the last time that
you were aware of anyone else in the
evidence section, prior to
June 15, 1994, turning over this type of
blood sample to a homicide detective?
A. I can't give you an exact
date, but I've seen it occur.
Q. And can you tell me -- can
you give my any description whatsoever
the last time, prior to June 15, 1994,
that you observed this occur, the name
of the case, the name of the detective,
anything -- anything to help me to
identify that?
A. No.
Q. You're sure?
A. Very sure.
Q. How long before
June 15, 1994, did you observe this
occur?
A. I would say within a few
years of that date.
Q. Well, within five years?
A. Within that time.
Q. Would it have been within
one year?
A. I don't recall
specifically.
Q. Is it fair to say that it's
a very rare -- it's fair to say that
it's a very rare occurrence, isn't it?
A. No, I don't think I would
characterize it very rare.
Q. You have never --
A. I would say it's uncommon.
Q. You never did it before?
A. No.
Q. And you are telling me,
unless I am mistaken, you have a
recollection of a single occasion within
several years prior to June 15, 1994,
where you are even aware of it
occurring? Isn't that fair to say, sir?
A. I would characterize it as
I've seen it occur a few times over the
12 years I've been with the coroner's
office.
Q. Five times, maybe?
A. Maybe.
Q. Maybe. Thank you.
Do you know that Detective
Vannatter went to Dr. Golden first to
try to get those blood samples? Do you
know that?
A. No.
Q. This is the first time
you're hearing that?
A. Yes.
Q. That's not part of the
procedure? In other words, the DME,
deputy medical examiner, doing the
autopsy would never be in possession of
those, would he?
A. No.
MR. LEONARD: Nothing further.
MR. MEDVENE: We have nothing, Your Honor.
MR. BAKER: Call O.J. Simpson.
THE COURT: Just a minute.
Ten-minute recess, ladies and gentlemen.
(Recess.)
(The following proceedings were
held in open court outside the
presence of the jury.)
THE COURT: All right, at this time we're
proceeding in the absence of jurors and we're going to
address the motions -- I believe there are four
motions -- filed by the defense.
First motion that the Court addresses is
defendants' motion to preclude rebuttal testimony of
Terry Lee, Roger Martz, Bradley Popovich and Richard
Fox.
I've read the moving papers.
Plaintiff want to be heard?
MR. PETROCELLI: Yes, your Honor.
Under California Civil Code Section 607,
rebuttal evidence is proper when offered to disprove
evidence offered by the other party's case in chief.
It is not proper, for example, where
you're merely reiterating matters that were previously
covered in the plaintiff's case in chief.
Classically, rebuttal is appropriate
where you are proffering experts to rebut the experts
offered by the defense.
Now, as I understand the argument of the
defense here, they are somehow contending that because
of certain matters being mentioned in my opening
statement, that we somehow are now barred from
bringing up by way of rebuttal and have somehow
inherited the burden of proof on those matters.
Our rebuttal case, Your Honor, will
principally consist of points directed to four issues.
One is the photo issue regarding the
shoes. We have a couple witnesses to call to rebut
the defense contention that the photograph that was
offered into evidence taken by photographer Scull is a
fraud, and they offered their expert, Mr. Groden, and
we are going to offer Mr. Richards and Mr. Flammer and
Mr. Bodziak, and perhaps maybe even Mr. Simpson,
depending on what happens in the cross-examination.
THE COURT: Would you identify who those people
are, what they're going to testify?
MR. PETROCELLI: Gerald Richards is an expert
who will rebut the expert testimony of Charles
Groden -- Robert Groden, excuse me.
(Laughter.)
MR. PETROCELLI: I'm going to hear about this.
E.J. Flammer is the photographer who took
the photograph -- photographs that were introduced to
impeach not only Mr. Groden, but also Mr. Simpson, and
he will authenticate the photographs.
Mr. Bodziak will testify that the shoes
in those photographs are in fact Bruno Magli shoes,
Lorenzo, same as -- as in the Scull photograph.
In addition to that issue, the defense
has raised the so-called planting issue. They've said
that the socks were planted, and they offered an
expert by the name of MacDonell who talked about
little balls of blood. We will rebut that testimony
with our expert, Richard Fox.
The defense contends that blood was
planted in one aspect. They offered a guy named
Rieders who talked about the presence of EDTA where it
shouldn't be, and we will rebut that with the
testimony of Dr. Terry Lee.
The defense has offered evidence with
regard to the second Bronco collection of blood,
attempting to indicate that that blood had not been
there previously and therefore was planted, and we
will present some of the SID photographers who took
the photos on which the defense is relying to explain
away those assertions.
The defense has argued that the glove is
planted. Recently they introduced some testimony from
Mr. Fung with regard to the so-called hole, which is
in fact not a hole, and we will offer a glove
photographer and perhaps Greg Matheson to rebut that
assertion.
In addition, the defense offered the
testimony of Rolf Rokahr to indicate that a photograph
was taken at a particular time, and that somehow,
although it's unclear to me how, proves that a glove
was planted. We will present the testimony of
Sandra Claiborne of SID who was with Mr. Rokahr and
will testify about the timing of the photograph.
The defense has attempted to prove in
their case that other blood evidence that may not have
been planted was nonetheless contaminated, and they
relied principally on their expert named Gerdes, and
we will call our expert, Popovich, to rebut some of
the Gerdes points.
And finally, depending particularly on
what happens on Mr. Simpson's examination and what he
proffers by -- with regard to issues of the --
concerning the relationship between himself and Nicole
Brown Simpson, we may call some witnesses on that
issue.
The Court will be reminded that one of
our fact witnesses was unavailable in the first --
when we were presenting our case in chief. His name
is Alfred Acosta. And the Court gave us permission to
call him out of order when it was our turn in
rebuttal, and we plan to call him if indeed he is
available.
Finally, Your Honor, in terms of the law,
here, I would cite to the Court the case of Diamond
Drinks Lime Company versus American River
Constructors, 16 Cal.Ap.3d 581, which makes it clear
that under, those, in this case, we are absolutely
entitled to put on this sort of rebuttal evidence, and
the case of Charlieville versus Metropolitan Trust
company of California 1236 Cal.Ap. 349.
The last point I'm going to make is, if
the Court will remember back in the opening statement
that I made, Baker made an objection to my even
bringing up any evidence by way of rebuttal to his
witnesses, claiming that he may decide not to call
those witnesses and therefore I had to wait until the
end of my case, and the court sustained that position.
And that was at page 63 of the transcript
from opening statements.
And Mr. Baker said, "Opening statement is
what their case is, what their evidence is going to
prove, what -- they have a burden of proving it, not
to rebut what our position may or may not be at time
of trial."
Okay.
And he goes on to say, "In my opinion,
they've got to save that for the conclusion of the
case."
And that's precisely what we're doing.
And in regard to all of the issues on
which we seek to offer rebuttal, I might add, they
have the burden of proof.
We can't acquire the burden of proof when
they respond to that fair affirmative defense opens by
mentioning them in our opening statement. That's
never been the law and wouldn't make any sense.
They're going to have the burden of proof. We will
argue on these issues, that the photographs are a
fraud, that any evidence was planted or that any
evidence was contaminated, they will have the burden,
they put it on in their case, and we're responding to
it.
MR. BAKER: Your Honor, I haven't looked at the
Charlieville case, which is even older than I am, or
the Diamond case, because we didn't -- we didn't get
any of this from Mr. Petrocelli.
But as this court is aware, these are
all -- for example, these are all designated expert
witnesses.
And my objection to his opening statement
did not go to Mr. Petrocelli, for example, asserting
that we will have experts that will assert there is no
contamination, we will have experts that will assert
that these photographs are not phony. They -- he
could certainly have said that and put that evidence
on, and had an obligation at the time that he
presented his case in chief to call all the expert
witnesses that he had designated in his case.
He chose, for tactical reasons, as a
ploy, not to put those experts on so that they -- that
he could have a tactical -- what he thinks is a
tactical advantage at the end of the case.
The cases that we cited to you indicate
that that is totally inappropriate.
Those issues were issues in this case
before his law firm ever got involved in the case.
Those issues have permeated the criminal trial, they
have permeated this trial.
Those expert witnesses should have been
called in his case in chief.
And now -- I guess Bodziak was called in
his case in chief. And now, from what I've just
heard, he seems to think that he's entitled to call
Bodziak again for these, quote, newly discovered
photographs that were taken over three years ago.
Now, that seems to me to destroy any
alleged 2034 designation of experts.
And I believe that certainly he's
entitled to call people relative to the issue of the
Bronco photographs that -- that we assert show no
blood on August -- early August, as contrasted to
August 26 when there's blood all over the console, the
August 10 photograph, the August 26, and certainly
he's entitled to call relative to the issue of whether
or not that is in fact a hole or a pebble in the glove
that was raised.
The other issues were well known to him,
and our position is, and I think it's supported by the
code section and the cases we cited, he cannot attempt
to sandbag his case in chief, and for political and
tactical ployish reasons, withhold all those experts
until now. They have been known and they should have
been in his case in chief.
And if in fact that happens, then this
case goes on another month, because we have then
surrebuttal to those -- those people.
THE COURT: I don't think so.
MR. BAKER: Well, I'll tell you --
THE COURT: It's not going to go on for another
month.
THE COURT: Well, it depends upon your rulings.
You can't call five experts, one who has already been
on the stand, and -- maybe six experts, and suggest
that we shouldn't have any surrebuttal to those
people.
THE COURT: All right.
The Court has read the moving papers, has
read the cases cited by the defendant, and I'm
satisfied that under these circumstances, the fact
that any mention in the opening statement in and of
itself did not obligate the plaintiff to offer
rebuttal to the various specific defenses raised by
the defendant in their defense.
The rebuttal evidence appears to this
Court, based upon representation of counsel, that's
what they're going to testify to, going specifically
to the issues raised by the affirmative defenses
submitted by the defense to the jury.
And the motions to preclude the
presentation of the rebuttal witnesses are denied.
That is as to both the -- there's a
separate motion filed as to -- as to the photographs.
I include this order as covering the photographs as
well. Particularly with regards to the photographs,
the representation is that the plaintiffs did not have
the photographs until they had rested their case in
chief. Under those circumstances, they had no duty to
offer any evidence of that nature in their case in
chief.
MR. BAKER: Your Honor, just to -- a
clarification on that.
THE COURT: Yeah. Yes.
MR. BAKER: You're not suggesting now they can
submit those to an expert witness and have that expert
witness come in here, and Bodziak has already
testified, and testify to the authenticity of those
photographs, which we have not raised any such issue
yet, obviously.
MR. PETROCELLI: I don't understand what he's
saying.
THE COURT: I don't either.
MR. BAKER: Okay. Fair enough.
You're not saying that Bodziak, who came
in here and testified as to -- as to the shoes, can
now come back in and say that these are in fact Bruno
Magli shoes? He's going to be limited to what he
testified to in the criminal trial and what he
testified to -- because he was a designated expert
under the stipulation. And now they're suggesting
that Bodziak come into this courtroom and expand his
testimony because he was subject to the stipulation
and then his deposition was taken for the Scull photo.
Okay. Then -- but that limited the amount of what he
reviewed, and you're not, I take it, suggesting 2034
is waived.
THE COURT: What is your --
MR. PETROCELLI: We don't know what position
they're taking. If he takes the position that these
photographs -- that these shoes that are in the
Flammer photographs are not Bruno Magli shoes, then
Mr. Bodziak will so testify that they are. We don't
even know what their position is. If he concedes the
position, then he won't be necessary.
MR. BAKER: I don't have to concede anything.
THE COURT: Sir, just a minute.
MR. BAKER: 2034 says --
THE COURT: If you offer evidence or testimony
that the Flammer photographs don't show Bruno Magli
shoes, then I think the Court is going to rule that
plaintiffs can rebut with Bodziak or --
MR. BAKER: Regardless, 2034 we know that --
THE COURT: I don't think 2034 has any
application to these circumstances.
MR. BAKER: You don't think Kennemer does
either.
THE COURT: Mr. Baker, I'm making my rulings.
You know where you can go with them.
MR. BAKER: I've been there before.
THE COURT: Okay.
Now, next motion the Court will address
is -- defense memorandum, I guess, is the motion.
Defense memorandum of law re admissibility of Mark
Fuhrman statements contained in tapes of Laura
Hart-McKinney.
Go ahead.
MR. LEONARD: Your Honor, this is obviously --
we're revisiting the Fuhrman issue here from a
slightly different angle.
This was -- as I think is clear from the
moving papers and perhaps as Your Honor already knows
from other sources, Detective Fuhrman spoke to a Laura
Hart-McKinny, who is a wanna-be playwright, and he
gave her a lot of information about his personal
experiences, including several admissions with regard
to police misconduct and also planting evidence and so
forth and so on, and also his indication of his racial
animus.
There's really no question that these are
classic statements against penal interests. I think
we set that forth in the -- in our moving papers. So
I think there's also no question that these are
absolutely relevant to this case.
We have raised, as Your Honor knows, the
issue of whether or not the glove on the Rockingham
property was planted and whether or not other evidence
was planted, including blood, and now we have the
issue of this disappearing hole in the Bundy glove.
So we think that when we have evidence
that one of the primary, if not the primary, actors,
particularly with regards to the Rockingham glove, has
a -- someone who is an acknowledged racist, and
according to the statements he made, felon, then I
think that that's something that this court should
permit the jury to hear. I think it's relevant and I
think it's clear, again, these are clearly statements
against penal interests.
We've already filed -- I might as well
argue it now.
We've also filed a separate motion
arguing that some of what we'll call in the past
Mr. Fuhrman's substantive testimony at the criminal
trial also amounts to statements against penal
interest, particularly in view of the context in which
the statements were made.
And we've listed those -- all those 20
different areas on pages 4 through 7 of the
memorandum.
And I would cite in particular the case
People versus Gordon, which sets out the standard that
suspicious conduct alone can be amount to statement
against penal interest at least set up the
circumstances under which might otherwise be a
nonincriminating statement, is in fact a statement
against penal interest.
So we would ask the Court at this point
to admit at least these portions as we set out in our
memoranda of Detective Fuhrman's prior testimony.
I mean we have a situation, as Your Honor
knows, where one of the primary investigators and
actors in the case is not here because he chooses not
to be here. And I don't think it's fair. I don't
think it's a right thing at all. I think our case is
highly prejudiced. We can't really stop him from
running away. I don't think you should let the
plaintiffs hide him at this point.
I think he's in this case and I think --
THE COURT: Plaintiffs are hiding him?
MR. LEONARD: Well, I don't -- I think we
should be allowed -- yes, by their objection to his
prior testimony. Exactly.
And I think we should be allowed to
present this to the jury. I think it's relevant and I
think it falls within the exception to the hearsay
rule.
Thank you.
MR. MEDVENE: If the Court please, plaintiffs
aren't hiding anyone. We attempted also to take his
testimony.
We'll address first the contention that
his criminal trial testimony should be admissible.
This has been before Your Honor twice.
The request has been denied twice.
Now, belatedly, the claim is that the
otherwise innocent statements are somehow admissions
against penal interests. There's no case that
supports that. The law is clear that one has to know,
or have some reason to know, that this statement one
is making is against his penal interest. There's no
case that holds, as the defendants argue, that an
otherwise innocent statement or testimony during an
investigation that no one reasonably could have known
would subject someone to some penal consequence, falls
within the penal exception to the hearsay rule.
Really, what this is about, Your Honor,
is getting in some testimony of Mr. Fuhrman in an
attempt I think, as was pointed out earlier, to
set up that testimony so they can then try to impeach
it with a second string of the proverbial ball that
other statements made in the -- in the McKinney tape.
On the statements on the McKinney tape, we know that
they're all hearsay.
They claim again against penal interest,
which is curious, since the statements are ten years
old. So how could trial statements they're trying to
impeach, be impeached by something allegedly against
his penal interest, if the statute really would have
run?
But more than that, primarily, there's
nothing to impeach.
Detective Fuhrman did not testify in this
case, so the statements they offer of him are not
relevant for any purpose.
And I might note, Your Honor, that, in
the earlier criminal case, even in a situation where
Detective Fuhrman did testify, or when Detective
Fuhrman, in each and every instance cited the 18
cited -- and the comments in the '94 tape, were all
held not relevant, even when he did testify.
And, of course, this is a totally
different case, because both sides have attempted to
question him, and he has chosen not to testify.
So we say for all of those reasons, Your
Honor, that the -- any of the transcript portions
cited should not be admissible.
MR. LEONARD: Your Honor, just one statement
that Mr. Medvene made is absolutely incorrect: After
the preliminary hearing, one of the statements Fuhrman
made is, "I'm the key witness in the biggest case of
the century. You know if I go down, they lose the
case. The glove is everything. Drop the glove,
because you are going down."
Now, that's -- that's something that was
uttered after he had already been involved in -- in
the case, 1994, in July.
MR. MEDVENE: He also says, by the way, in that
same tape, that he did nothing wrong; and anybody that
thinks he did anything, one, is a psycho, and
everything he did was appropriate.
But aside from that, that very statement
in the prior criminal case where he did testify, was
not permitted in under 352.
Here, most importantly, there's nothing
to impeach, because the man has not testified.
MR. LEONARD: Your Honor, I would note for the
record, since we're now talking about what some other
judge did, that there was no argument made that I'm
aware of along these lines in any statements against
penal interests.
THE COURT: Submitted?
MR. MEDVENE: Submitted.
THE COURT: All right.
With regards to the taped statements of
Fuhrman, of Laura Hart McKinney, I am of the opinion
that those statements which are included as part of
the memorandum or moving papers, do not constitute
admissions against penal interest. I think they are
further not only hearsay, but remote. Not relevant.
And whatever probative value they may have is far
outweighed by the prejudicial fact, particularly in
view of the lack of connection with the evidence on
this case, and in the absence of the opportunity of
plaintiff to cross-examine both Fuhrman and McKinney,
defendant having also filed a declaration that
McKinney, likewise, is not available for examination.
MR. LEONARD: Your Honor, may I make a comment
on the last point so the record is clear?
THE COURT: Go ahead.
MR. LEONARD: McKinney was clearly
cross-examined at the criminal trial. We'd be
proffering the tapes through her testimony, both at a
voir dire and also in -- actually in front of the
jury. So that under the prior testimony exception,
that would be covered, just so the record's clear.
THE COURT: That's a nice segue into the second
ruling.
The Court had previously ruled as to
Fuhrman's criminal trial testimony, that it was
inadmissible, because of the effect of Evidence Code
Sections 1291 and 1292. I think the same principle
applies to Hart McKinney's criminal trial testimony.
The Court ruled previously as to Fuhrman,
and now rules as to Hart McKinney, that the plaintiffs
were not in the same position, did not have the same
interests and motive within the mention of sections
1291 and 1292 of the Evidence Code.
And this is something I've already
previously ruled on, I believe, on November 18, 1996,
that the criminal trial testimony of Fuhrman, and now
of Hart McKinney, are not admissible.
I further find that, with regards to the
contention that Fuhrman's criminal trial testimony
constitutes a statement against his penal interests, I
find that argument to be untenable, and that motion is
likewise denied.
MR. LEONARD: So the record is clear, Your
Honor, you -- as I understood you, your earlier
ruling, because you're now incorporating that into
your ruling with regard to Hart McKinney, you made the
ruling, as I understood it, that -- that it was
because Fuhrman was called as a -- on direct testimony
by the prosecution, who had the same -- basically the
same interest as the plaintiffs. That was the
distinction I thought you were making. You even
called it a technical rule.
Now, we have the opposite situation with
regard to Hart McKinney. She was called by the
defense and was, in fact, cross-examined by the
prosecutors, who had the exact same interests as the
plaintiffs. So I want to make sure that's clear.
THE COURT: That makes it doubly objectionable,
in my opinion, under 1291 and 1292.
MR. LEONARD: Well, that, I don't understand.
THE COURT: Well, there you are.
Okay. I'll hear argument -- further
argument, and I will ask for an offer of proof as to
the proposed testimony of the defendant with regards
to specific aspects of the decedent's character. I
want to anticipate and address the issues of relevance
and whether or not the Court should permit the
questions.
MR. BAKER: Your Honor, I intend to inquire of
Mr. Simpson on the specific incidents raised by the
plaintiffs in this case; that is, the 1984 incident,
the 1989 incident, the 1993 incident. I intend to go
into his feelings and discussions with Nicole in some
detail, between January 1 of 1994 and June 12 of 1994.
THE COURT: Well, the objections seem to not go
to those; it just seems to go to something else.
MR. BAKER: Well, that's what I'm going to be
inquiring of Mr. Simpson about, those specific issues,
the reasons, the rationale, what was said, what
transpired during the conversations that occurred, and
what gave rise to those incidents, and to explain what
happened at those incidents.
And those all, of course, were raised by
the plaintiffs.
MR. KELLY: Your Honor, most of these things,
such as '93, as I said, first of all, go before the
reconciliation and maybe purported to have something
to do with alleged drug use, which would have nothing
to do with, as I understand it, nonmotive of
Mr. Simpson to commit these murders. As I said, they
are totally irrelevant to the murders of
June 12, 1994.
I have absolutely no objection to
Mr. Simpson testifying as to his feelings regarding
Nicole or things like that in 1994. My objections are
to, one, prior alleged drug use of any sort by Nicole
Brown Simpson; two, her romantic interests prior to
1994, which there's been no evidence of any of.
I have no objection of none of -- if none
of that's been brought up. I think Mr. Baker
indicated in his opening statement he's going to bring
out testimony, one about a terminated pregnancy that
occurred in 1992, which is totally irrelevant, and
made some mention of an observation Mr. Simpson had
made in '93 regarding a sex act between Ms. Simpson
and someone else, which will be totally irrelevant,
also.
MR. BAKER: Your Honor, they have made the
entire relationship of Mr. Simpson and Nicole Brown
Simpson relevant back to '84.
THE COURT: Would you address the contention of
Mr. Kelly with regards to the drug use?
What do you intend to offer on that?
MR. BAKER: The argument that was raised by
them in the October 25, 1993 incident goes to the
issue of that argument commenced as a result of Nicole
Brown Simpson dealing -- having interactions with drug
dealers, having interactions with known prostitutes,
and having those people around her home. Mr. Simpson
didn't like it, didn't want it, and had a