Live Trial Coverage - CA v. Simpson - Day 159 - Part 1
RIKKI KLIEMAN, Anchor: We're waiting for court to begin in the O.J. Simpson case. It is the last day before the jury will get the case. We're going to hear the rebuttal argument of Marcia Clark and she has a great deal to rebut from the outstanding oratory of Johnnie Cochran, from the fact based arguments of Mr. Cochran and Mr. Scheck. It is said that she will share her rebuttal responsibilities with Christopher Darden, as well.
I'm here with Sam Pillsbury, a frequent guest at Court TV. I'm glad that you were able to come back on this last and very important day.
SAMUEL PILLSBURY, Law Professor, Loyola School of Law: Thanks so much for having me.
RIKKI KLIEMAN: You are a former prosecutor, a former assistant United States Attorney, you've been practicing or teaching for some 11 years. You're a professor at Loyola Law School, teaching criminal law, criminal procedure, American legal history all of that.
And with all of that background, Sam, let me as you the question that I think is on many people's minds, and that question concerns the 15 questions that Mr. Cochran had in high-tech, up on the ELMO, as the computer would spit out the words, and they were 15 highly probative questions to raise reasonable doubts from the defense point of view. You've been a federal prosecutor where you also have that rebuttal argument. Should Marcia Clark take the bait?
SAMUEL PILLSBURY: I don't think so.
RIKKI KLIEMAN: And, why not?
SAMUEL PILLSBURY: Well, all trials in fact, practically all legal processes are about who frames the issue? Who sets the question? And if you can get the question set the way you want, you're likely to win. The prosecution wants to set its own questions and I'm sure will come back with its own questions they think the defense has not addressed. The battle, really, here is for the jury to decide are the defense's questions the appropriate ones, or are the prosecution's questions the appropriate ones? It's not a matter of answering the others' questions here, at all.
RIKKI KLIEMAN: In fact, I have this thought that two of the questions concern credibility. One is basically to the effect of Mark Fuhrman lying, and the other is to the effect of Mr. Vannatter Philip Vannatter lying. And it would be a very dangerous situation for the prosecutors if they might be able to answer the evidentiary questions, but they really couldn't satisfactorily answer something like, ``why did Mark Fuhrman lie?''
SAMUEL PILLSBURY: No, that's right, and, of course, by answering that question, it takes them way away from their own case. It presumes that that, in fact, is critical to the proof of O.J. Simpson's guilt, which is something they want to contest very vigorously.
RIKKI KLIEMAN: In in dealing with this prosecution rebuttal, we have heard that it will be Mr. Co Mr. Darden excuse me with Ms. Clark, and that, frankly, surprised me. I thought that Ms. Clark would carry the day by herself. And, do you think the addition of Mr. Darden is particularly because of some of the things that Johnnie Cochran said, and I'm talking about things he said directly about Mr. Darden and the domestive violence evidence?
SAMUEL PILLSBURY: It may well be. It's also, I think, obvious that Darden did an extraordinary job, and that the pairing of them is a very powerful pairing that Marcia Clark has an ability to organize in a very clear way a whole lot of evidence, do all of the detail work, but Chris Darden has a particular personal, emotional passion which has a which contrasts nicely with Cochran's because Darden is rough, he's often awkward, but it's very personal. It's not at all smooth, and that's a very effective contrast to Cochran's style.
RIKKI KLIEMAN: I have a strong feeling Excuse me a moment, I heard that we're going into the courtroom. Judge Ito is on the bench. The jury is not yet present.
Judge LANCE ITO, Los Angeles Superior Court: All right, back on the record in the Simpson matter, Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck; People represented by Ms. Clark; jury is not present.
Counsel, just one matter before we get started this morning. You should have on your desks, there, a the Court's schedule, upcoming, and if you recollect, the one thing that's missing on the Court's schedule is that we had agreed to be dark in this matter, my recollection was Wednesday, the 4th, and concluding early on Tuesday, and that will be in effect for that date, as well.
All right, anything else we need to take up?
Judge LANCE ITO: All right, Deputy Smith, let's have the jury, please.
JOHNNIE COCHRAN, Simpson Attorney: [inaudible] not seen this yet, [inaudible] trying to show us [inaudible]
[loud, but inaudible, conversation between several attorneys]
[laughter in courtroom]
DEPUTY: Quiet please!
JOHNNIE COCHRAN: Sorry, Chris.
Judge LANCE ITO: All right, we're about to clear the courtroom.
JOHNNIE COCHRAN: Your Honor, Ms. Clark was just showing us some boards they have, some new boards we have not seen, when Your Honor came out and we just started looking at the first one. May we have a few minutes to see the boards?
Judge LANCE ITO: How many do you have, Ms. Clark?
[inaudible conversation among attorneys]
JOHNNIE COCHRAN: And and, if there are any graphics, we'd like also to see those.
Judge LANCE ITO: All right, let's see the boards.
JOHNNIE COCHRAN: All right, and then we'll find out graphics.
MARCIA CLARK, Prosecutor: This one is [inaudible].
Judge LANCE ITO: All right.
[inaudible conversation among attorneys]
Judge LANCE ITO: All right, Counsel, this is going to be a discussion on the record, not amongst ourselves, here, all right?
MARCIA CLARK: Have you seen [inaudible]?
Judge LANCE ITO: I've seen it.
[inaudible conversation among attorneys]
Judge LANCE ITO: All right, let's see the [unintelligible]. Very nice.
How much does that weigh, Mr. Feretlow [sp]?
Mr. FERETLOW, ELMO Technician: Pardon?
Judge LANCE ITO: How much does that weigh?
Mr. FERETLOW: I'm not too sure [inaudible].
Judge LANCE ITO: All right.
[inaudible comment by Marcia Clark]
Judge LANCE ITO: All right, Ms. Clark, why don't you let Mr. Feretlow do this and let's look at the other board.
MARCIA CLARK: I didn't know, Your Honor, [inaudible], may be [inaudible], slide show, put 'em back together.
[inaudible conversation among attorneys]
MARCIA CLARK: Never mind.
Judge LANCE ITO: All right, Counsel, let's look at the ``Reliability of DNA'' results board.
RIKKI KLIEMAN: As you can see, the lawyers are looking at the boards that the prosecution would like to use in its rebuttal argument. This is something, of course, that we have seen throughout this case in terms of boards that are used.
Judge LANCE ITO: And, Ms. Clark, how many slides do you have?
RIKKI KLIEMAN: Boards that are used for evidence, as well as boards that are used for the purposes of getting a point to the jury in the course of argument.
Judge LANCE ITO: And everything else is either in evidence or previously used, correct?
MARCIA CLARK: Correct.
Judge LANCE ITO: All right.
RIKKI KLIEMAN: Peter Neufeld, by the way, who is wearing dark glasses, there, maybe those of you who remember from the other morning, when Mr. Neufeld's glasses broke and he did ask Judge Ito permission if he could use those dark glasses in the courtroom until his are fixed, and that's why you see him with those spectacles.
I'm here with Sam Pillsbury and, Sam, this is a very normal course of events, lawyers looking at the others' charts to make sure that they don't find anything, at least, unduly prejudicial.
SAMUEL PILLSBURY: That's absolutely right. The only thing that's unusual here is the ability to produce new charts for a rebuttal argument, which the prosecution is often lucky to have charts for final argument at all.
RIKKI KLIEMAN: It was one of the things that my guest commentator and I, last night, Lane Liroff and I, discussed about the timing of the rebuttal argument. I know if I were defending this case, I would have tried as hard as I could to push for the prosecutor to have to start yesterday, and not give them the opportunity to prepare over night. That's something in terms of timing that lawyers do like to think about.
SAMUEL PILLSBURY: Oh, yes, very much. It makes an enormous difference, whether it's cross-examination or an argument, or anything else that you have to respond to the other side, to have a little bit of extra time to think about it. Really, it does give the prosecution a boost here to have over night, even though they're going to be tired and not have a lot of time to think it through.
RIKKI KLIEMAN: In this particular case, much more than most, these prosecutors could have basically prepared their closing argument both their opening argument and their rebuttal argument ahead of time. Regardless of what imagery was used, what metaphors, similies, analogies, the Bible or history were used, the facts that the defense was going to talk about were pretty etched in stone by the time the evidence closed.
SAMUEL PILLSBURY: That's right, and trial lawyers generally try to have a final argument in mind when they begin a case, to try and have an idea of how the evidence is going to come out. And certainly, there have been a lot of developments that have changed that over the course of the trial, but they've had both sides a lot of time to think about what they're going to say and there are no great surprises here for either side, either.
RIKKI KLIEMAN: You bring up a very good point. In the teaching of trial advocacy, the way good lawyers will attempt to teach law students or young lawyers, is to do The first thing is to look at the law, and find out what your jury instructions might be, so I'm sorry for sometimes when I'm stopping and starting, but that's that we're keeping an ear out for Judge Ito or the parties that we don't like to cover what they say while we're talking, so forgive me for breaking up my sentences. My point being that if you first start organizing your case by dealing with the law, then the second thing you would do is really write your closing argument or the structure of your closing argument and, from there, working backwards, to what your direct and cross-examination might be.
SAMUEL PILLSBURY: That's right. You build from the bottom line, up, trying to indicate all the things you have to prove from the start.
Judge LANCE ITO: All right, any other comments? That's it? That's it?
All right, Deputy Smith, let's have the jurors, please. I'm sorry, let's clear this and then we'll have the jurors.
RIKKI KLIEMAN: While we're waiting for the jury to come in, I'm here with Sam Pillsbury, and, Sam, one of the things that we have seen this week is outstanding skills on the part of four lawyers who have argued to this jury in very contrasting styles. And, when you have this much power from the prosecution coming in, followed by the defense, and now the prosecution has to come back, is this a time where the prosecution needs to be logical, or they need to be emotional?
SAMUEL PILLSBURY: I think they need to be both, but I would say that, on the whole, the logic needs to be more important than the emotion here. Chris Darden gave the prosecution a big emotional boost that I think still resonates with the jury, here, and I don't think they're going to be able to match Johnnie Cochran's rhetoric and oratorical style. The only emotional part of the case that might have been missing, so far, is sort of the sense of sadness that really is a part of every murder case, and an effort to communicate to the jury, the heavy duty that they bear, to try to look at the evidence here in this case, to be able to face the terrible facts of this crime and to try and do justice, in that context. And, that's a quieter kind of emotion, but one that's extremely important and very powerful for the prosecution.
RIKKI KLIEMAN: All right. The jury is entering the courtroom. This is the last day before they get the case. We're going to hear the rebuttal closing argument.
Judge LANCE ITO: Good morning, ladies and gentlemen.
JURY: [in unison] Good morning.
Judge LANCE ITO: All right, at this time the defense has concluded their summation and the prosecution now has the opportunity to offer their rebuttal to the defense summation, and Ms. Clark, the prosecution may proceed.
MARCIA CLARK: Thank you very much, Your Honor, Mr. Darden will begin our closing [inaudible].
Judge LANCE ITO: All right, thank you very much. Mr. Darden?
CHRISTOPHER DARDEN, Deputy District Attorney: Thank you.
Judge LANCE ITO: Good morning, sir.
CHRISTOPHER DARDEN: Good morning.
JURY: [in unison] Good morning.
CHRISTOPHER DARDEN: Well, we've come full circle, again, it seems. Here you are and here I am, and as Judge Ito just indicated, this is my last opportunity to speak with you, that is, until after you've rendered your verdict, if, at that time, you're kind enough to spare a few moments and allow me to thank you personally at that time, not only for your verdict, but for your service, as well.
You've got a tough job very tough job. I don't envy you in that regard. But, let me tell you something, I I've had a tough job, too. The law is a tough thing to enforce in this town. Not everybody, not everybody wants to live up to the law, to follow the law. Not everybody thinks that the law applies to them. I have been a prosecutor for almost 15 years, and if there is one rule that I have lived by, if there is one rule that means a lot to me, it's this one no one's above the law. Not the police, not the rich no one. And I hope you agree with that. I hope you agree with that rule. I hope you you you consider that that model. O.J. Simpson isn't above the law.
You've heard a lot of argument over the past couple of days, and I know you listened to all of the attorneys in this case, intently, and I did, when I could. And I listened yesterday, and I had been anticipating yesterday's arguments from the defense. I knew that those arguments would be passionate. I knew they'd be loud, and I knew they'd be force they'd be forceful, and I knew that they'd be provocative. And I wasn't disappointed. But, I also knew that they wouldn't talk much about the evidence well, Mr. Scheck did. But, that's OK. And I knew they'd want to deliver a message to you, and that's why, when I spoke to you the other day, I said to you, ``Hey, you can't send a message to Fuhrman, you can't send a message to the LAPD, you can't eradicate racism within the LAPD or within the L.A. community, or within the nation as a whole, by delivering a verdict of not guilty in a case like this where it is clear and you know it's clear, you feel it. You know it, you know it in your heart, you know it. As you have sat here day after day listening to this testimony, you know it. Everybody knows it. Everybody knows he killed
JOHNNIE COCHRAN: I object to the form of that argument, Your Honor.
Judge LANCE ITO: Overruled. Proceed.
CHRISTOPHER DARDEN: Everybody knows.
JOHNNIE COCHRAN: Objection to that, Your Honor
Judge LANCE ITO: Overruled. Proceed.
CHRISTOPHER DARDEN: The evidence is there. You just have to find your way through the smoke. You just have to find your way through the smoke. You heard from Mr. Scheck yesterday. You heard him talk about our science. They have to attack our science because all the science points to O.J. Simpson, to this defendant. It all points to him as the killer. They have to attack that science. Not only does common sense dictate that he is guilty, and we have proven him guilty to a scientific certainty. We've proven him guilty beyond a reasonable doubt. They hoisted that chart up on the on the thing, there, yesterday, with ``Reasonable Doubt.'' You you remember that chart? It had ``Reasonable Doubt'' at the top, and below that it had ``Highly Unlikely'' and all this other stuff. They put it on this thing and then they hoisted it all the way up to the ceiling. That isn't reasonable doubt. That's not what I'm required to prove to you.
Mr. Cochran said to you, ``Well, reasonable doubt is doubt with a reason.'' That's not reasonable doubt. When you look back at that instruction, when you look back at the reasonable doubt instruction, you'll see when it comes to human affairs, there's always some degree of doubt, no matter how small. The sun could explode tomorrow, it could explode today, but I doubt that that'll happen. I really have no reason to believe that's true. I have no reason to believe that the sun will explode today or tomorrow. When you read the reasonable doubt instruction, apply it to read it and apply it to your every day situation, your every day circumstances. What does it take what does it take you, as a human being, after hearing all the evidence and hearing the law that the judge gives you, what does it take for you to feel comfortable in your conclusion that he killed these people?
They said that you have to be able to wake up the next day and feel as if the day before the day that you rendered your verdict that you did the right thing, that you rendered a verdict that you can live with. Let me ask you this if you were to acquit him, what explanation would you give the day after that acquittal, if someone said, ``Why did you acquit him?'' Would you say racism. Would you say it's because there's racism in the LAPD? That's what they want you to say. That's what they want you to think. You heard all of that all the speaking and the fiery rhetoric and the and the and the quotes from Proverbs, and the like. You heard all of that yesterday, all of that fiery rhetoric.
Well, let me tell you what Marcia Clark and I are. Let me tell you who we are. We are the voice the voices of calm and reason in all of this. You just need to calm down, take that common sense God gave you, go back in the jury room, don't let these people get you all riled up and all fired up because Fuhrman is a racist. Racism blinds you. Those epithets, they blind you. You never heard me use that epithet in this courtroom, did you? I'm not going to put on that kind of show for ``you know who'' for people to watch. That's not where we're comin' from. We want you to focus on the evidence. I am eternally grateful that Mr. Fuhrman was exposed to be what he is, 'cause I think we should know who those people are. I've said it once, I've said it before, we ought to put a big stamp, tattoo it on their forehead ``Racist'' so that when we see 'em we know who they are, so that there's no speculation, so that we don't have to guess.
But, what they want you to do, and what they've done in this case, is they've interjected this racism and now they want you to become impassioned
CHRISTOPHER DARDEN, Deputy District Attorney: You never heard me use that epithet in this courtroom, did you? I'm not going to put on that kind of show for you-know-who, for people to watch. That's not where we're coming from. We want you to focus on the evidence. I am eternally grateful that Mr. Fuhrman was exposed to be what he is because I think we should know who those people are. I've said it once; I've said it before. We ought to put a big stamp, tattoo it on their forehead ``racist'' so that when we see them, we know who they are. So there's no speculation, so that we don't have to guess. But what they want you to do, and what they've done in this case is they've interjected this racism and now they want you to become impassioned, to be upset. And then they want you to make quantum leaps in logic and in judgment. They want you say ``Fuhrman is a racist. He planted the glove.'' You can't get from point A to point B if you just sit down and use your common sense. If you're logical. If you're reasonable. You can't do that.
It is true that Fuhrman is a racist and it is also true that he killed these two people. And we proved that he killed the two people and they proved that Fuhrman is a racist.
ROBERT SHAPIRO, Defense Atty.: Objection.
Judge LANCE ITO, Los Angeles Superior Court: Overruled.
CHRISTOPHER DARDEN: See this is my time to talk. Yesterday somebody said that you can't quiet a man's voice in a court of law. This is my time to talk and I want to talk to you. I heard that a the words they spoke yesterday about the Constitution. I've read the Constitution. I'm a lawyer. I am a student of the Constitution. I know what it means and what it doesn't mean. I know what it is. And Gil Scott Herrin [sp] said that the Constitution was just a notebook piece of paper. Do you remember that? And that's probably true. But what makes it more than that is the fact that there are decent, honest and courageous people behind it. You can write the law, but if you're not willing to enforce the law, then what is it? What is it worth? You can write the law, you can pass a law, but if people aren't willing to follow the law then what good is it?
I looked back at the Constitution last night. I sent my clerk to go get it for me. And I looked through the Constitution and you know what I saw? I saw some stuff in the Constitution about Ron and about Nicole. And the Constitution said that Ron and Nicole had the right to liberty. It said that they had the right to life. It said that they had a right to the pursuit of happiness. It said that Nicole didn't have to stay with him if she didn't want to stay with him. That's what the Constitution said.
And I looked further and I looked in the Constitution to see if it said anything about O.J. Simpson and you know what it said? It said he doesn't have the right to take those lives. He did not have the right to do what he did. They talk about courage. Courage is what Marcia Clark and I do every day.
ROBERT SHAPIRO: Objection.
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: It's time to stand up. It is time to stand up. The Constitution says that a man has no right to kill and then get away with it just because one of the investigating officers is a racist. Your job as jurors in this case is to get beyond all of that. The fact that Fuhrman is a racist goes to his bias, it goes to his credibility and it may go to other things the judge will tell you. And I'm not going to tell you that you should limit your use of that. You should use it in any way you're instructed to use it by the Court, but you shouldn't use it for anything else. As I said the other day, the issue of Fuhrman it may not be an issue for another day but it certainly isn't an issue is not an issue that is, in terms of sending him a message, is not an issue for you in this case. You can't send him a message. You can't send the LAPD a message. You want to send the LAPD a message? I am sure they will listen to you after this case is over. I am sure that they will.
I listened to the lawyers talk to you and it's been a long trial. And there has been a lot of evidence in this case, a lot of testimony. And it is easy to get lost in it all. It certainly is for me. I you I think you watched me and there were some days when the day just seemed to run on so long. Has it been a year and three days now? But it's easy to get lost in the evidence. And it's easy for lawyers to get lost in the evidence. And as Judge Ito told you before and I think I told you the other day, nothing we say in this argument is evidence. Nothing I say to do today is evidence. Certainly nothing they said to you is evidence in this case. The evidence is what you heard from the witness stand. The evidence is the exhibits.
I listened to one of the lawyers testify in this case. I heard lawyers add things, add facts into the record, or attempt to. The facts are what you heard in testimony by people who took an oath and who sat down in that chair. If you find what they said to be true, then you find a fact. Nothing a lawyer says is a fact. They said yesterday that I'm an advocate. Well, I am an advocate and they are advocates, too. You've taken notes throughout this trial. We watched you all take notes. Rely on those notes. Rely on the court reporter's transcript. Rely on your own recollection. Don't be mislead. Don't be misled because I listened to lawyers argue yesterday. You know what we do when we start to argue and get all caught up? You know, you get that roll going and pretty soon, hey, you just start saying stuff you just start saying stuff. And it may not necessarilly be true. It may not necessarilly be what's in the record. So rely on the record. Rely on the record. If you rely on the record and use your common sense, you'll find your way through the smoke. And I told there was going to be some smoke. I told you there'd been some smoke. Yesterday, we heard the smoke. It was fiery rhetoric. But that's what we do. We're lawyers.
I was reading last night about how important it is to remain calm. And we heard a lot of quotations over the last couple of days. And I remembered a story that I had read once. And a lot of people quote Martin Luther King and the like and that's all fine. But you know I'm a student I'm a student of that. I've studied him and studied him and studied him. And I recall that in 1961 there was an incident involving Dr. King and it might be helpful for you to recall this, as I'm sure you do. But it was 1961 and he'd written a book and he was up in Harlem and there was a book signing. And he was seated there at the table a line of people walking up to him asking him to sign their books, meeting him, saying hello. And finally this one woman walked up to him and she said to him ``Are you Martin Luther King?'' And he said, ``Well, ma'am Yes I am.'' And she said ``Well, I've been looking for you,'' and she reached into her purse and she pulled out an envelope opener and she plunged it into his chest. And the people in the store were horrified and everyone became panicked and people began running and screaming, ``Oh my God. Dr. King has been stabbed. Oh my God. Dr. King has been stabbed.'' And he fell to the floor and he laid there. And one of his assistants ran over to him and saw and saw this massive thing embedded in his chest and the assistant started to reach for it to pull it out and Dr. King calmly said ``No. Don't touch it. Just get me to a hospital.'' Well, the assistant was he was hysterical. ``Doctor let me pull it out. Let me pull it out.'' Dr. King was calm. He lay there with this thing embedded in his chest and he said ``No. Just don't touch it. I'll be all right. Just get me to the hospital.''
And so the assistant did as he was told, as Dr. King instructed him to do. And he took him to the hospital and they rushed him into surgery and they operated on him for five hours. And they removed what for all intents and purposes was a knife out of his chest. And it was removed by a black doctor a black surgeon, I'm proud to say. And a few days later, the surgeon went to see Dr. King who was still resting and rehabilitating in the hospital and he went to see him. And the doctor said to Dr. King, he said ``It's a good thing you were so calm, Dr. King. It's a good thing you were so calm about the whole thing. The point of that blade was touching your aorta. Had you moved suddenly, if you so much as sneezed, you would have died instantly. You would have drowned in your own blood.'' Some folks would like to get you all riled up and get you so upset that you move suddenly and that and so that you drown in the minutia, so that you choke on the smoke. Some people want to make you mad and angry and bitter. King once wrote that we should never succumb to the temptation of bitterness and that the one thing about bitterness is its blindness. So don't be blinded by all this. Just do your job. I know you know what your job is. I know you know what to do and I hope you don't mind too much that I that I keep reminding you of that job because this is important. This case is important. This is a murder case. There are two people that are dead.
I think it's safe to say at this point, after all that I've heard over the last few days, I think it's safe to say that I'm the messenger. And I volunteered for that job and I don't mind being the messenger. I told you what the message was. In 1989, the message was that ``He's gonna kill me. He's gonna kill me.'' And Edward says ``Who's gonna kill you?'' ``O.J.'' ``O.J. the football player?'' ``Yeah. He's gonna kill me.'' That was the message in 1989, but the new message today is another message. The message in '89 was that ``He's gonna kill me.'' The message in '95 is ``He killed me.'' That's what this has been all about. That's the message we've been trying to send you the past eight months. The message is he killed her.
And there's another message. You might not be able to hear it and see it and read it through all the smoke and through all the shouting and all the rhetoric, but there's another message. And the other message is ``He killed me, too. He killed me, too.'' Through all the smoke and over all the rhetoric, you have got to be calm and not succumb to bitterness, and do the right thing.
I heard a lot about courage. And you are 14 courageous people. And everybody in this room knows that. No one can ever call you cowards. No one can ever accuse you people of running away. Because you have a tough job and you know you have a tough job. And you have sat here day after day, even when you were sick even when you were sick, and you came here and you listened to us. You listened to Marcia and I and you listened to the defense. They want you to believe that if you acquit him, that that will be the courageous thing to do. I think the courageous thing to do in this case would be to look at all the evidence. I think that takes courage. I think it takes courage not to jump to a snap conclusion. I think it takes courage to recognize within ourselves that what we heard yesterday was an appeal to a certain part of us. And it was an appeal to some of us, perhaps, and not all of us. But it was an appeal to a certain part of us that only some of us know about. That's what happened yesterday. I think it takes courage to recognize that. If you mistrust the police I spent seven years prosecuting bad policemen. I understand why you mistrust the police if you have that basic mistrust.
ROBERT SHAPIRO: Objection, Your Honor.
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: I understand that. And perhaps you ought to. But I think that what we have to do is we have to take every case on a case-by-case basis and every cop on a cop-by-cop basis. Yesterday, they took Fuhrman, this racist, and then they put Vannatter with him. And pretty soon, they were interchanging Vannatter and Fuhrman. Vannatter's been a detective 27-28 years. You didn't hear anybody come in here and say he ever used that word. It's easy to put up a big poster and say ``Vannatter's Big Lies.'' That's easy to do. They say that he made an off-the-cuff remark eight months ago. That's what some people said. You heard what he said. Do you remember everything you say? Do you know everything that you've said? Does every lawyer in this case know everything that they've said?
I heard one of the lawyers say that there was a Caucasian hair on the Rockingham glove and that that hair was that there was never any attempt to match that hair to anybody and that it could be Fuhrman's. That wasn't true. That's not what's in the record. I'm not going to put up a big poster and say ``Defense Big Lies.'' Sometimes people misspeak. Sometimes people forget. Sometimes people are wrong. Sometimes they said things they don't remember saying. Sometimes they said things that they do remember saying and won't admit to them. We have some of all of that in this case, I suppose.
Well, let's talk about some of the things we heard over the last couple of days. Let's talk about some of the evidence. As I listened to them, I got the sense almost that they had sort of designed a special theme for each and every one of you. And this is high-tech stuff, talking to juries these days. This is 1995. You know, there are people that know what to say to individual jurors and particular jurors. I heard someone say pose a question, ``What more could an innocent man do?'' Do you remember that question? You saw the videotape. You saw Officer Thompson standing there at the driveway. You saw the defendant arrive. You saw him get out of the car. You saw him walk up the driveway. He walked up the driveway carrying this black bag over his shoulder. Remember that? He got out of a car, walked up the driveway. And then, a few minutes later, we see Robert Kardashian carrying a Louis Vuitton bag. The police had a search warrant to search Rockingham. They didn't. Have you ever heard that they had a search warrant to search Robert Kardashian? And when you pull up to your house, do you jump out of the car and give your luggage to your lawyer? That was June 13, 1994. And what is the testimony? What have we heard in this case? On March 28, 1995, retired Judge Delbert Wong, a very fine judge
[end of segment]
CHRISTOPHER DARDEN, Deputy District Attorney: [in progress] That was June 13, 1994 and what is the testimony. What have we heard in this case? On March 28, 1995, retired Judge Delbert Wong, a very fine judge, acting as a special master an extension of Judge Ito acting at Ito's direction, he went to the defendant's house where a Louis Baton [sp] bag was pointed out to him. Judge Wong brought that bag to court Where is the bag? Judge Wong told us that it was on March 28th that he retrieved that bag. When you look back at the video you'll see that that bag is bulging. What's in that bag? What was in that bag? Don't you want to know what was in that bag? And I bet that at least once, since I've been up here talking, I bet there's been somebody back there shaking their heads side to side because that happened. This it the evidence. They talked about evidence yesterday. They talked about showing you the evidence. This is the evidence. This bag is empty. There's nothing in this bag. There's nothing in this bag. Why bring this empty bag here in court to you? That's not what you're interested in. What's not what you want to know. When I finished here the other day, I left some questions for them. Who was that man that walked into the house that night? That's what you want to know. Who was the man Allan Park saw walk into the house? And let me tell you something, search your notes. Search your memory. They never brought it up. They never mentioned that man. Never. That's what you want to know. You don't want to know what's in an empty bag.
Told you that one of the lawyers was in Well, told you the lawyers would testify and they were adding evidence and information into this case that you never heard from the witness stand. Chipping golf balls. There was golf balls in that little black bag. You know, remember the bag left on the driveway, the one that Kato offered to go get that the defendant said, No, no, I'll get it. I'll get it. This is the night when he's supposedly suffering from acute arthritis, an attack of acute arthritis. Remember that? Remember that somebody told you that he suffered from acute arthritis to the point that he couldn't deal cards or something? But yesterday we heard somebody interject into this case that he was out chipping golf balls. I assume you do that with a golf club, I don't know. Did you ever hear anybody on the witness stand tell you that this man was out chipping golf balls? Did you ever hear of that on the night of June 12th? There's no evidence in this case to that effect. And I believe the suggestion was made that that bag black bag was put into the golf bag with the golf clubs. Here it is. You have it in evidence. You find that little bag, the one with the golf balls, the one Allan Park described, the one Kato Kaelin described, let me know. That's what you want to know, isn't it? Don't you want to know what was in that little bag? The one he wouldn't let anybody touch? The one that disappeared? They show these bags to Judge Delbert Wong. Why didn't they show him that one?
There was the issue of the white Reebok shoes. They are all over Detective Lange about taking those white Reebok shoes home. Why did Detective Lange pick up those white Reebok shoes in the first place? Who told him that they had any amount of relevancy, any relevance at all, to this particular case? Who directed him to those white shoes? Who said that they had on those white shoes the evening before when they were asked by the detectives? You know who. No one testified to having seen this man, this defendant, O.J. Simpson, wearing white Reebok tennis shoes that night. Kato Kaelin didn't say it. You see that picture from the recital, the one they want to show you? Do you see any white Reebok tennis shoes on this man's feet in that photograph? What's up with that? What's up with that? Why is he sending them to get white Reebok shoes? He didn't wear white Reebok shoes that night. There's no evidence of that in this case. Smoke. Smoke, ladies and gentlemen. They are blowing smoke. And let me tell you, they made a big deal out of those white Reebok tennis shoes. They were all over Detective Lange about taking those shoes home. Remember? Remember that? They were all over him. They were trying to make him look like a fool for taking those white Reebok shoes home. Did you hear in this trial at any time that there was any forensic evidence, that there was any forensic value to those shoes? Did you hear anything about hair and blood and fiber or anything having to do with those white Reebok tennis shoes? They sent Detective Lange off on a wild goose chase and when the goose got to the witness stand they tried to roast him.
They want you to throw your common sense out the window, just chuck it out the window. You can't do that. They talk all this stuff about race and everything. We got one racist cop. You know, and the last time, from what the evidence says and trust me, I'm not apologist for this man, but the last time, according to the evidence, that anybody heard him use a slur was in 1988. They say that since he used it in 1988 he must be a racist. Well, the last time the we know of from the stand that the defendant beat up Nicole was in 1989. If you say it in '88 and you're a racist in '94, well what are you if beat her in '89? What are you in '94? But they want you to apply a double standard.
See, now go back to Martin because I feel comfortable with Martin Luther King, after that some Malcolm X, but I'm not going to drop that today. I don't want to get that deep. For Martin Luther King, for Martin Luther King justice was a critical issue in his life, in his life, Your Honor. And it was more than a legal issue. And it was more than a moral issue. It was a spiritual issue. Let me read to you what he said about justice. And they're just sitting there listening to me instead of standing with me. [to ELMO technician] You got that quote? Still looking for that quote? [joking] See, he never does that when Marcia Clark's up here talking. I think it's a very appropriate quote for this case and if he lets that happen again [to ELMO technician] You're lucky today is the last day of the trial. Read along with me what Martin Luther King said about justice. ``Justice is the same for all issues. It cannot be categorized. It is not possible to be in favor of justice for some people and not be in favor of justice for all people. Justice cannot be divided. Justice is indivisible.'' OK? We can't have a system of law, or a system of justice or concept of justice or a concept of law or a legal standard of burden of proof. We can't have reasonable doubt over here for everybody else and then have another reasonable doubt standard for a particular individual. That ain't justice. That's not justice. That's what he's talking about. That's what he's talking about. He's talking about a double standard of justice. We can't have that. Let me ask you to ask yourself something ask yourself this when you're in the jury room. As you go through all of that evidence-- And I know you're going to critique each and every piece of it. I know you are. I can tell just by looking at you that you are. You're not going to let anything slip by you. You're not going to let anything get by you. You're going to take that evidence, you're going to take it apart, you're going to review it. Ask yourself something as you look at that evidence and assess how important or significant it is to you in this case, as you ask yourself whether it incriminates the defendant or not, as you ask yourself as they want you to ask yourself is it planted or not, ask yourself, hey, if this wasn't O.J. Simpson would I even be thinking that this might be planted? Would I even be thinking that he wasn't guilty? Am I applying a double standard? Just ask yourself that. Because if it was anybody else, same fine lawyers, the same defense, how would you view the case then?
Throughout this case they have sent you and us on these little wild goose chases, chasing these red herrings and, you know-- Some people call them red herrings; some people call them deceptions. [to the ELMO technician] Do you have my next exhibit ready? Are you reading along with me, the thing I just gave you? What do you got? Page 11. They say that I'm not following my script. Item 5. [to the ELMO technician] You got that picture? Think of all the wild goose chases we went on. Remember early on in the case at one time we discussed the issue of the blood drops at Rockingham and how they got there and there were all kinds of questions, lot of questions, lots of cross-examination directed at the officers and as you recall there appeared to be on the part of the defense an attempt to suggest to you that those blood drops at Rockingham were planted? Remember that? Remember how much time we spent on that? Remember how much time they spent crucifying Fung up here on the witness stand about blood drops at Rockingham? Remember the implications of all of that, how they attempted to suggest that he hadn't bled that night before going to Los before going to Chicago?
BARRY SCHECK, Simpson Attorney: Objection. [inaudible] No such argument.
Judge LANCE ITO, Los Angeles Superior Court: Overruled. Counsel, who's making the objections here, you are Mr. Cochran?
JOHNNIE COCHARAN Simpson Attorney: There are two of us, [inaudible] I will too, Your Honor.
Judge LANCE ITO: No. One person, one person makes the objection. Who's making the objections?
JOHNNIE COCHRAN: Well, I thought [inaudible]
Judge LANCE ITO: One person. Overruled. Proceed.
CHRISTOPHER DARDEN: Thank you. Like they say, what's done in the dark will come to light. I just heard that yesterday. Remember this photograph? Here's another red herring we all went chasing after. Remember that? The police had contaminated the scene. They had traipsed through that crime scene, you remember that? And they threw this photograph up there. Now, what did you think? You thought, oh, my God. You thought, contamination, garbage in, garbage out. Remember all that stuff? Remember that photograph? Look at the little square there on the right. See that little square there, where they blocked out the name of the media entity that produced that footage?
JOHNNIE COCHRAN: Objection. [inaudible]
Judge LANCE ITO: Pardon? Yes. That was acquired out of court.
CHRISTOPHER DARDEN: Remember they put that photograph up there?
Judge LANCE ITO: [inaudible] Mr. Wood.
CHRISTOPHER DARDEN: That's OK. And then what did we do? We went and we got a video. We went and we got a video. [inaudible] Back it up. And what do we find out when we went and got that video? We found out that when those officers walked up that walkway that the tape had already been taked taken down, that the crime scene had already been disbanded. Remember that? They tell you not to believe the messenger. And then Henry Lee comes in here and talks about, you know, possible, maybe, wanna be, might be, I don't know, could be, portions of imprints or footprints or whatever and he's making these calls on photographs taken on June 25. You see the cops walking up and down that walkway after the crime scene has been disbanded?
JOHNNIE COCHRAN: Objection, it's misleading, Your Honor.
Judge LANCE ITO: Overruled.
JOHNNIE COCHRAN: [inaudible walkway.
Judge LANCE ITO: Overruled. Overruled. Proceed.
CHRISTOPHER DARDEN, Deputy District Attorney: [in progress] Your Honor
Judge LANCE ITO, Los Angeles Superior Court: Overruled
CHRISTOPHER DARDEN: [inaudible]
Judge LANCE ITO: Overruled. Proceed.
CHRISTOPHER DARDEN: And they tell you not to believe the message. And what about the cuts? What about the cuts? Where was he cut? When was he cut? They tell you not to believe our message. How many times was he cut that night on the night of June 12th? Is it a coincidence that, apparently, at about the same time that these people are being butchered he somehow gets cut? And when did he get cut? When did he say he got cut? When did Dr. Baden say he got cut, and when did Dr. Heidsinger [sp] say he got cut? Don't you think that that little deal in Chicago with the glass, and Marcia Clark'll be talking more about that Are you gonna talk more about that? are awfully convenient? How many times can one person get cut, in how many different states [laughs] in one night in one morning? They called him. He knew he had to come back. They said, oh, he just came back. Where was he gonna go? I'd find him. And they tell you not to trust the messenger. And when they showed you photographs during their argument They showed you all these photographs of the defendant's body, but they didn't show you that close-up photograph of his left hand, and I'm not even going to ask you to put it up there. They didn't show you that. Take a look at that photograph. Look at all those cuts. They're all over his hand. They're all over his left hand. That's the same hand that was left exposed during the commission of those murders, because Ron Goldman pulled that glove off his hand. And they talk about, oh, well, does it look like O.J. Simpson was in a struggle for his life? It wasn't O.J. Simpson's life that was at stake. He wasn't the man about to lose his life. It was Ron. It was Ron Goldman who was in a life struggle. Look at the nicks and the cuts on him. We talk about heroes. We talk about heroes. A hero is a man that would rush into a life threatening situation to save a woman without ever thinking about himself first. There are no heroes in this courtroom today. They called Ron Shipp a liar. They really went after him the whole family you know, and that puts You know, if you're a lawyer for the prosecution, that's puts you in a difficult situation when the family walk steps up to testify. You don't want to beat up on somebody's family. You don't want to do that. I mean, his family We understand that. We understand family. We understand why we have it, why they're so important to us, culturally speaking. I know mine is. Shoot, my big brother'd do anything for me. Like yours would. But you have to assess the credibility of those folks just like all the other folks that testified in this case. But they went after Ron Shipp, and they had to go after Ron Shipp. They talk about Ron Shipp his eyes being red and all of this stuff, you know. When you think about when you think on the issue of whether Ron Shipp was drunk or something that night, I hope that you go back and you read Arnelle Simpson's testimony, and I'll just leave it at that, and I hope that you'll reflect on it her testimony about Ron Shipp, but Ron Shipp Well, they tore into him early on in the trial, right, and that was the first real indication of just what this whole thing was going to be about, and they tore into Ron Shipp, and Let me offer to you a reasonable explanation for Ron Shipp's eyes being red the night of June 13. Could it be because he knew that his friend Nicole was dead and that he knew his other friend had killed her?
JOHNNIE COCHRAN: Objection, Your Honor. This is
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: They talk about this man's demeanor after the murders. What did Ron Shipp say about his demeanor? Says they went up into that bedroom, and they did.
JOHNNIE COCHRAN: Object to the form of that [inaudible]
Judge LANCE ITO: Overruled
JOHNNIE COCHRAN: [inaudible]
Judge LANCE ITO: Overruled. Counsel, this is argument.
CHRISTOPHER DARDEN: And what did the defendant say? To be honest, I had been having dreams of killing her, and he chuckled. They say that some people are afraid to hear the truth. I'm just a messenger. He chuckled. Ron Shipp had been a friend to this man for many, many years to the defendant. He was his personal policeman. He did all kinds of things for him all kinds of things for him. You saw Ron Shipp in those photographs with the defendant at his 40th birthday party. He'd come over and use the jacuzzi and the pool. Looked like Kato had to ask permission to use the jacuzzi. Ron, apparently, just came over and used it. Ron Shipp told you that he would not have the blood of Nicole on his hands. It's up to you to decide how credible he is or what significance you want to attach to his testimony, if at all. It's up to you. But you watched him on the stand, and, you tell me Didn't he look genuine? Didn't he look like he was hurtin'? In 1989, he went and talked to the defendant about the beating he inflicted on Nicole, and I heard lawyers yesterday talk briefly about domestic violence and just slough it off just slough it off to the side like it didn't mean anything. That's 'cause they can't touch it, and they can't deal with it, and they said that I could call Lenore Walker. I can't call Lenore Walker. There's a code section in the evidence code says I can't call Lenore Walker. They know that. Oh, if they had. Ron Shipp was feeling guilty. Yesterday, someone threw out this notion that the murderer was after Ron Goldman's envelope. When you get the evidence back there and the photographs, take a look at the envelope. It is, for the most part, sealed still. That's the way they found it sealed closed for the most part. Nobody was after that envelope. If someone was there to commit a theft Well, you saw that condo. You saw how nice it was. Is there any indication or any evidence at all that anybody went into the condo to steal anything, which they easily could have? This case has nothing to do with theft and robbery. This case only has to do with revenge and jealousy and control and rage. And I was referred to as Dr. Darden yesterday. Well, you know what? I don't know a whole lot about everything, but there are some things that I do know a whole lot about.
JOHNNIE COCHRAN: Objection [inaudible]
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: You don't need a Ph.D to see what's going on here. Your life experience, I think, will help you understand what's going on here just what you know, just what you read in the papers, just what you learned in school and just what you heard from your friends and your girlfriends. Someone suggested that that pathway this pathway of death, this walkway of death where these two people lay, wasn't pitch black that night, that it was ea would have been easy to see two bodies layin' there. That ain't true. That's not the evidence in this case. Mr. Park testified. He lived next door. He testified that the lighting wasn't great at that location. And Stephen Schwab [sp] testified that that side of the street is dark, and you can find that testimony at page 13,813 and 13,866. Just reflect on the type of street lights they got out there those orange things. Don't you hate those? Everything's dark with those. I don't know why they had those things.
JOHNNIE COCHRAN: [inaudible]
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: And if you don't want to rely on that, rely on Officer Riske's testimony and rely on Sukru Boztepe's testimony. He followed the dog dog Kato the dog, not Kato the human but Kato the dog led Sukru to the bodies, and when the dog led Sue Kru up the path to the bodies, even Sukru Boztepe had problems seeing the bodies, and he walked right up there. He testified at page 13,940 that he didn't even notice the bodies at first, and then he went and got a police officer Robert Riske, and at page 14,013, you remember his testimony, he testified that the lighting was very poor. It actually took us a few seconds to find the bodies, it was so dark. Robert Riske Officer Riske testified, and Now, keep in mind. This is somebody who has been told, hey, there are a couple of dead bodies right up the walkway here, OK? I mean, he is looking for bodies, unlike these other people who aren't looking for bodies, like Ellen Aaronson and Mandell and those people who are out on a date strolling around strolling up and down the street. This is a policeman on duty. He has been told that there are two dead people up this walkway, and as he walks up the walkway, he doesn't even see bodies initially. And actually took us a few seconds to find the bodies, it was so dark. We didn't see the bodies at all until we were directed by the witnesses. That's what Officer Riske said, and even then, he had to use a flashlight. Then they say to you, don't believe the messenger. You are the ultimate [inaudible] fact in this fact. It is up to you to decide what is true and what isn't true, what is fact, what is not fact, what is material and what is rel irrelevant, what is helpful to you in resolving this case and what isn't. It is all up to you, and we don't have a problem with that. I don't mind you having this case, especially since we kept you in custody eight months now [laughs]. I guess we kinda owe it to you. But when you resolve this case, I just hope that you resolve it based on the evidence and not on the rhetoric of myself or others. They want you to believe that because there are no socks shown in that video Remember the Willie Ford video? I'm not even going to show it to you, 'cause I want to hurry up and get off this po this thing. I have about eight more pages, and I want to I want to finish this morning.
Judge LANCE ITO: Find a convenient breaking point, then.
CHRISTOPHER DARDEN: How about 11 o'clock?
Judge LANCE ITO: The court reporter needs a break, so find a break point.
CHRISTOPHER DARDEN: OK. 10:30 or now, or close to now?
Judge LANCE ITO: Closer.
CHRISTOPHER DARDEN: Closer. OK. But just keep in mind Keep in mind the testimony you heard about those socks, or they keep saying socks, socks, socks, and they keep talking about transfers and wet transfer stains on the inside number three surface, inside the sock. Now, if you wear socks, you don't take your shoe off and then grab at the end of your toe and pull your sock off. They talk about plantin' blood and all this stuff. That's nonsense. When you pull off a sock, you stick your thumb or your finger into the sock, don't you? Into the sock, and you pull your sock down from the inside. You pull your sock down to your foot. Stains one and two He got that out there killing people. Stain three, perhaps, he got
JOHNNIE COCHRAN: Misstates the evidence
Judge LANCE ITO: Overruled
JOHNNIE COCHRAN: Misstaes the evidence
Judge LANCE ITO: It's a reasonable inference from the evidence.
CHRISTOPHER DARDEN: Stain number three he could have got off blood off his hand, blood from underneath his fingernail. Who knows? He could have taken the sock off or laid it down, and then the sock touched it.
JOHNNIE COCHRAN: Objection, Your Honor [inaudible]
Judge LANCE ITO: Overruled, Counsel.
CHRISTOPHER DARDEN: You decide. You look at the pictures of the socks, the size How else do you lay a sock down? I mean, the sides are touching. They're all touching in there. This is no big deal. This is all smoke. Common sense tells you that. Common sense dictates that. And when they say the socks aren't there, the socks aren't there. The socks are there. You heard Mazzola. You heard Fung testify. You heard Willie Ford testifying. The reason those socks aren't in the video is because it was his job to go in there and videotape that room after Dennis Fung finished collecting the evidence. And they want to tell you about straps and stuff, and you know you didn't really get that, 'cause that just woo That was something they just threw in to throw right past you
JOHNNIE COCHRAN: [inaudible]
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: And they want to talk about the timer in the video. What did Willie Ford tell you about the timer? He didn't even care about the time in the video. He never even checked the time in the video. He never adjusted the timer in the video, because it had nothing to do with his purpose in being there and with his purpose
JOHNNIE COCHRAN: [inaudible]
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: and with his purpose in videotaping that particular room. It was for civil liability purposes. He didn't want to contaminate the evidence contaminate the room, so he had to wait until after Fung had collected the evidence from the room. That is Willie Ford's testimony, and you heard that brother testify. He look like a co-conspirator to you? And they say don't trust the messenger.
Judge LANCE ITO: All right. Ladies and gentlemen, we're going to take our mid-morning recess at this time. Remember all my admonitions to you. We'll stand in recess for 15 minutes.
RIKKI KLIEMAN, Anchor: Judge Ito taking an earlier break He said his court reporter needed one, and we [sic] listening to Christopher Darden, who really is in a very low key style, having a conversation with the jury about himself, about Ms. Clark, about the evidence, and then having some rhetorical flourishes, where he's quoted from Dr. Martin Luther King, his theme of the morning having to do with no one being above the law and that you can't send a message about racism that that is not your job. We're going to take a commercial break. When we come back, we're going to talk about not only what Mr. Darden is saying We're also going to talk about why Mr. Cochran is objecting. Stay with us.
[commercial break]
RIKKI KLIEMAN, Anchor: before our guest commentator Sam Pillsbury shares his insights with us, we're going to go to Dan Abrams, who has been in the courtroom. And, Dan, as always, you're able to see what goes on in the courtroom. We can only see what the camera permits us to see. Tell us about some of your observations.
DAN ABRAMS, Reporter: Well, first of all, Barry Scheck is sitting at the defense table, on a regular basis making incredulous faces at the jury, at the prosecutors, reacting overtly to almost everything that the prosecution is saying.
RIKKI KLIEMAN: Some of that we
DAN ABRAMS: Fur
RIKKI KLIEMAN: actually can
DAN ABRAMS: Furthermore
RIKKI KLIEMAN: see. [laughs]
DAN ABRAMS: Sorry, Rikki?
RIKKI KLIEMAN: I said some of that we actually can see from Barry Scheck.
DAN ABRAMS: Oh, OK. [laughs] OK, well, then you can see what we are seeing inside that courtroom. But one thing you can't see is one of the jurors. And I was surprised that one of the jurors, juror number 12, an elderly African-American woman, is actually taking a lot of notes during Chris Darden's closing argument here, particularly when he's talking about some of the facts. For example, when he was talking about these bags that Robert the bag that Robert Kardashian took from O.J. Simpson and walked out with. She also seemed to be taking a lot of notes when he was talking about these white Reebok tennis shoes. And this is a woman who has taken very few notes throughout all of these closing arguments. In fact, the only other time I've seen her take notes is during ``Vannatter and Fuhrman's big lies'' boards that came up during the defense's closing argument. Most of the other jurors are not taking any notes but paying close attention as they have been through most of these closing arguments.
RIKKI KLIEMAN: Dan, one of the things in addition Barry Scheck's movement, which from time to time when he is in the camera we can really see his head is going like a metronome, is that fact that Johnnie Cochran is objecting on a pretty regular basis. Tell us about that.
DAN ABRAMS: Well, we've seen Johnnie Cochran again and again lodging objections to comments that Christopher Darden is making. Again, the defense is not going to get another opportunity here. But at one point we saw Johnnie Cochran object to Christopher Darden saying that he'd been prosecuting police officers for seven years. Well, remember, during Johnnie Cochran's closing argument he made a very similar comment when he explained to this jury that he used to be a prosecutor, as saying ``I used to be on the other side of the table, I know what it's like over there.'' And so Chris Darden's comment really mirroring something that Johnnie Cochran said in his closing arguments.
RIKKI KLIEMAN: Dan, you mentioned the bag, the Louis Vitton bag. Christopher Darden took a moment to actually get it back in his hand. Why is that bag so important to the prosecution?
DAN ABRAMS: Well, the prosecution believes it's important because they believe they say that there may have been items inside that bag when Robert Kardashian took it away from the scene. But we should point out that the prosecution has had a myriad of theories about exactly what happened to the bloody clothing or what happened to the murder weapon in this case, because remember that one of theories has been that O.J. Simpson had a smaller bag that he could have dumped in a trash can at the airport before he left. Remember, there was some testimony that he was standing around the garbage can, trying to imply that maybe he dumped it there.
The point is that the prosecution doesn't know what happened to the clothes, doesn't know what happened to the murder weapon. And so their theories have been changing and offering a whole choice or a whole wide array of choices as to what could have happened to the weapon and to what might be bloody clothes.
And that brings me to a final point, Rikki, which is that we've heard a lot from the defense about why the clothing couldn't have been why there wasn't more blood at the scene. And you can expect that one major point that Chris Darden and Marcia Clark are going to make that if a killer comes up from behind, well, then there might not be any blood on the clothing at all.
RIKKI KLIEMAN: OK, Dan, as always, thanks so much for that report. I'm here with Sam Pillsbury, a frequent guest commentator at Court TV, former prosecutor. And I'm using that credential of yours because I think this is a very important issue for our viewers to understand. While the defense can go ahead in its closing argument and within ethical bounds say a great many things that sometimes are personal. The prosecution is held up to a different standard by law, which may cause Johnnie Cochran to object appropriately in case he thinks there might be an error he needs to preserve for appeal. tell us about what the law says, Sam.
SAMUEL PILLSBURY, Law Professor, Loyola School of Law: Well, the prosecutor is supposed to represent the people and in many different places, and this is just one of them. The prosecutor has a different role to play than the defense attorney does, and it's subject to greater restrictions. What's troubling to Johnnie Cochran and what may be troubling to others about the the citation of his personal experience as a a prosecutor against bad police is that he sounds like he's vouching personally for the evidence that's presented for the state here, and that's not what a prosecutor's supposed to do. A prosecutor is supposed to say ``You decide the evidence here. I can't personally tell you that someone is telling the truth or not.'' And you shouldn't make it a personal credibility about the lawyer as questioned here. And and that's why Johnnie Cochran very appropriately made that objection and preserved that as an issue for appeal.
RIKKI KLIEMAN: One comment about that we're going to go out to Kristin Jeannette-Meyers but one comment I wanted to leave for the viewers about what Sam Pillsbury is saying is there is a body of law, especially on the federal side of criminal cases and also in many states, that is very strict about cases actually getting reversed for prosecutorial misconduct in closing arguments, sometimes for simply doing what Sam Pillsbury suggests, vouching for a witness, saying ``I think, I believe,'' rather than saying the other type of word, ``I submit.'' And that's why Johnnie Cochran, when Christopher Darden says something like ``Everybody knows that he killed her,'' that Johnnie Cochran is almost forced to object in order to preserve any possible appellate error in the hypothetical event of a conviction.
Kristin Jeannette-Meyers is standing by. And, Kristin, I'm told that you have learned what was said at an in-chambers conference yesterday.
KRISTIN JEANNETTE-MEYERS, Reporter: Actually, you know, before I tell you that, though, Rikki, what you were just commenting about about ``I believe'' and whether an attorney can say that, in a sidebar yesterday, that we were going to get to but it's more appropriate now, there was a sidebar Marcia Clark objected because Barry Scheck said ``we also believe.'' And Barry Scheck said ``My comment was, and I want to be specific because I'm aware of these rules, we believe the evidence shows.'' Marcia Clark, ``That is not what he said.'' Barry Scheck, ``That is exactly what I said. I resent this interruption. I know the rules and she can go and check the transcript.'' Marcia Clark, ``Read it back.'' Judge Ito, ``That is not just what was said, but just a caution.'' Marcia Clark, ``Your Honor, `we think we represent a man' is what was said.'' Judge Ito, ``That's what he said I cautioned him.'' And so, ironically, Barry Scheck was cautioned on this very issue yesterday.
Another thing that happened yesterday that we were not aware of until we get these transcripts happened in chambers, and it regards the lawyer Peter Neufeld. And he was actually cited for contempt by Judge Ito, although that citation was later taken back. Here's how it plays out. Judge Ito, in chambers, says `I'm going to recite the following facts that just occurred in open court. Mr. Neufeld called my attention, told me his glasses had not been fixed, that he wanted to sit over by the rail next to the jury. I told him he could not, and then he told me that was not fair. I find that to be a contemptuous remark accusing this court of not being fair. I cite you for contempt.''
Peter Neufeld says ``May I be heard?'' He says ``Your Honor, what I said was I had repaired my glasses with the glue but it broke again this morning. It didn't hold. And I sat there through Mr. Cochran's summation, and I couldn't see what was happening. I asked him if I could sit up there in the seat not next to the railing but next to Detective Lange and Detective Lange could sit next to the railing. That's what I asked for because I can't see the summation otherwise. And you said no at that point, and I said I didn't think that was fair. I didn't say it in front of anyone else. It was a private comment, and I was simply saying for the court to deprive me of the ability to see the the summation and see what was happening, I just didn't think that was fair.''
Judge Ito says ``Mr. Neufeld, this court gave you as much assistance as possible to help you with your glasses. There are one-hour glass repairs that are readily available. You decided not to take advantage of that, and that's not my problem. To ask to sit on the side of the courtroom in the row that's reserved for the prosecution because you have a problem with eyeglasses that has not been addressed is not this court's problem.''
Peter Neufeld, ``Your Honor, with all due respect, number one, I tried to take care of my glasses. I don't even have a prescription. I called the doctor in New York, he couldn't give me the prescription because they're in the archives at this point and I haven't been there in several years. But the point is there have been many times in this trial when I've been permitted to sit in those seats. We were permitted there to sit there when the boards were being shown. That has never been a problem. You've never made it an issue. This is the first time you've made it an issue.''
And Judge Ito said ``The prosecution objected to your being there during the argument. And that's their side of the courtroom. Do you want them to sit at their side of the bench?''
Johnnie Cochran cuts in ``I think if the court understands, and I appreciate what the court is saying, but as a third party, he did not mean it in a contemptuous fashion. I'm sure he doesn't. He apologizes that the court took it that way.'' Judge Ito says ``I haven't heard him apologize, counsel.'' Peter Neufeld, ``I did not mean it. I did not mean to be contemptuous to this court, Your Honor. However, I think I should be permitted to sit there because I've made every effort to get new glasses and to take care of the glasses so I can see. But I can't, I literally can't see. And I've worked on Mr. Scheck's summation for days with him, and I would like an opportunity to be closer so I can see it. That is all I'm asking.''
And the court says ``Well, I don't believe that's a genuine apology, counsel. I think it's a pretense just to get out of it at this point.''
And it Rikki, it just it goes on and on with Johnnie Cochran, Peter Neufeld, Judge Ito. What does end up happening after pages and pages of this transcript is Chris Darden is called in. And Johnnie Cochran I mean, Judge Ito says ``Mr. Neufeld has requested to sit on your side of the courtroom because of his broken glasses. Do you have any objections?'' Mr. Darden says, ``You mean, we have like 500 one-hour glasses place in this town and he hasn't gone there?'' And the fight starts again.
Finally, Mr. Darden says ``I don't mind him sitting next to Mr. McKenna at the ELMO.'' And in the end, Rikki, the court does end up saying that ``You guys are insistent on making this an exciting day.'' And and he does say that he takes back the contempt citation.
RIKKI KLIEMAN: Kristin, I have to say with all of the things you have ever read from a transcript in this case
KRISTIN JEANNETTE-MEYERS: [laughs]
RIKKI KLIEMAN: that this one can only border on pure humor. This is not what happens in most cases. In fact, if you printed that in in had to print it in a newspaper, it would probably be in a column that was dealing with something that is a ``believe it or not.''
So let me go to something that probably has more substance, even though it's about form. What is the schedule?
KRISTIN JEANNETTE-MEYERS: Yes, well, Judge Ito referred in court to the lawyers before the judge came in that the schedule was out, and we have a copy of it, and here it is. Starting next Monday, and this is next Monday, not today, today will be slightly different I'll deal with that in a moment but starting next Monday, the jury deliberation schedule will be as follows. Monday through Saturday and the judge makes a note ``Saturday deliberations pending appropriate logiscal logistical arrangements.'' It is going to be an issue getting in this building on Saturdays. But they will start at 9:00 a.m. There will be a 15-minute break at 10:30. Lunch will be from 12:00 to 1:00. They will resume at 1:00. They will break at 3:00 again for a 15-minute break, and they will recess at five o'clock. Family visits and telephone calls will be fully monitored by the bailiffs, and conjugal visits shall be discontinued for the duration of deliberations. That starts next Monday.
What we expect to happen today is if the prosecution finishes its rebuttal before five o'clock, the jurors will be allowed to deliberate until five o'clock. But there will not be deliberations this Saturday, not this weekend. And this schedule that I've just read will go into place on Monday.
RIKKI KLIEMAN: OK, Kristin, thank you for that information. And it's interesting as we go to a commercial break that there may be other places, but I have not heard of them, where there are actually scheduled breaks of 15 minutes or an hour for lunch. Usually, the jurors deliberate in a room, they decide when they want to break or if they want to break at all. Often times, in fact most times, during lunch hours, meals are brought into them. They can choose whether or not they will deliberate over lunch. And in terms of ending at five o'clock, in most places, if the jurors want to go on for longer than the normal court hour for deliberations, they are permitted to do so. This may and I'll question Sam Pillsbury and others about it a California procedure that is so structured. But nonetheless, the jurors have been used to a structure similar to this for many, many months now. We're going to take a commercial break. We'll be right back.
Judge LANCE ITO, Los Angeles Superior Court: All right, back on the record. All parties are again present. Deputy Smith let's have the jurors.
BARRY SCHECK, Simpson Attorney: May we address the Court on just and issue or two?
Judge LANCE ITO: One issue.
BARRY SCHECK: Your Honor, when I began my closing argument yesterday, there was an objection that Ms. Clark made with respect to improper vouching, but she misheard the testimony, because I said, `We believe the evidence shows an innocent man wrongly accused.' And I realize that was a mistake on her part in objecting and the transcript bore it out. However, I do have some concerns here with respect to improper vouching. I think it is improper to make an argument to the jury that Marcia and I are the ones with courage. That is classic improper vouching. I don't think a district attorney's allowed to say that in closing argument, and that's why we objected. I think it's improper for the district attorney to talk about, I prosecute police officers so I know. The implication is there, A, don't worry I'll take care of Mark Fuhrman, I'll prosecute him. B, if Detective Vannatter is lying, don't worry, I would know that. I think that's improper vouching. I think it's improper to make an argument everybody knows he's guilty. That's wrong. I don't think that that kind of argument is permissible. I think it's impermissible if they wanted to call an expert about domestic violence that's one thing, but I think it's impermissible to say I know a lot about certain things with respect to domestic violence issues, and most importantly, there was this whole thing where they put up the video where, as was indicated the Court had ordered that that part be redacted and indicated deception, but worst of all, he then makes an argument that Dr. Lee, that those, that infers to the jury, or directly states that those shoeprints could have been left by those officers taking the blanket away, when Agent Bodziak specifically testified agreeing with Dr. Lee that they could not be. So that directly misstates the evidence. Finally, I would make this request, because this is the prosecution's rebuttal summation and we do not have a chance to get back up, and if there were misstatements of evidence in their opening and closing arguments we were able to get back up and read transcript and correct it. If we make an argument with respect to misstating the evidence, I would respectfully request that if the Court is going to overrule it, overrule it with the caveat, which I know is the thrust and substance of the Court's ruling, the jury's recollections controls. Because I think that's the fair and neutral way to do it. And so I make that request of the Court and I would also request the Court, caution Counsel and we have no more of this improper vouching because I think it's an improper form of argument and I'm talking about those specific matters.
Judge LANCE ITO: All right, is the matter submitted? Objections are noted, they are overruled. Let's have the jury please.
JOHNNIE COCHRAN, Simpson Attorney: [unintelligible] there are a couple of photographs of officers that the prosecution expects to show that I was just shown during this break, during Ms. Clark's presentation, and I want to, I have an objection I want to lodge.
Judge LANCE ITO: What's your objection?
JOHNNIE COCHRAN: Well, I object. I think it's very similar to what we wanted to show the photographs of Mr. Simpson with the gloves on. I believe that was a still. These are photographs of Riske and the various officers, Lange and the others, and we object. And with regard to the last two photographs that I was shown, it still has the KTLA, channel five logo on those. So, I wanted to lodge my objection having just seen these things at this point. I think it's analogous, I think it's what the Court has said. I haven't seen these before and I presume they would be pictures put up there that she would be testifying about.
Judge LANCE ITO: Is this four photograph?
JOHNNIE COCHRAN: No, I think they're one at a time as I understand it, you can see them if you care to.
MARCIA CLARK, Prosecutor: They're still photographs of the
JOHNNIE COCHRAN: Mostly police officers, I think Mazzola's in there also.
MARCIA CLARK: Yes, they're still photographs, I just told Mr. Cochran when he said he was going to object to this, that the Court overruled my objection. I objected to the stills that they were going to use. They elected not to use them ultimately, but the Court overruled in saying the stills were proper, so I made this exhibit on that ruling.
JOHNNIE COCHRAN: Your Honor, the Court can see the last two with the KTLA seal and
Judge LANCE ITO: Well, the KTLA seal is irrelevant, Counsel.
JOHNNIE COCHRAN: All right, well I thought it was irrelevant but you had us clear it up before, I thought, that the evidence covered that up.
Judge LANCE ITO: That's at a time where the source of it was not relevant to the issue.
JOHNNIE COCHRAN: All right.
Judge LANCE ITO: All right, noted.
BARRY SCHECK: Your Honor, one more objection I want to note for the record. I also thought it was an improper argument that Mr. Simpson gave his bags to his lawyer on the way in. First of all, there's no facts in the record establishing that Mr. Kardashian was in the act of representing Mr. Simpson at that point in time or that there was any attorney-client relationship at that point in time. I think it's highly inflammatory and improper argument and also does not accord with the known facts in the case, and another one I think they came perilously close to with respect to the discussion of darkness at Bundy. And that is, we all were at the scene. Mr. Darden wasn't, I appreciate that, on the night that we did the jury view. And I have no objection to him citing from certain specific points in the record. But I would just like it noted, we all know what the lighting was like there, because we recreated the best we could and then the prosecution chose not to take the jury on a night time jury view. It was their decision. And it seems to me that in terms of good faith arguments based on what is not, what is knowledge of all the parties here, that I think they have to be very, very careful in terms of raising inferences to the jury about what could be seen and what couldn't be seen in light of what we know.
Judge LANCE ITO: What we know is from a recreation, Counsel, the testimony of the witnesses as to approaching that walkway under conditions of darkness on June the 12th and June the 13th are in the record and it's a fair inference. The arguments concluded, Counsel.
BARRY SCHECK: I understand that, I'm just saying
Judge LANCE ITO: Sit down.
Judge LANCE ITO: It's a fair inference that can be drawn from the record. Also, I'm going to admonish Counsel on both sides not to make any gestures, headshaking, grimaces or any other responses to a Counsel's argument. I've seen it on both sides and if I see it again, I'm going to stop in front of the jury and I'm going to upbraid you in front of the jury. Let's have the jurors.
RIKKI KLIEMAN, Anchor: Judge Ito getting a little impatient again. Perhaps he wants this case to go to the jury. He doesn't want to see bickering. The only thing is, Sam Pillsbury, Barry Scheck's comments are very well-taken under the law. Improper vouching for witness, what does that mean in English?
SAMUEL PILLSBURY, Law Professor, Loyola School of Law: It means that you're saying that believe me because I believe this witness, instead of, you decide on your own what this witness is saying. It's improper for the case to become personal that way. It shouldn't be about whether you believe Johnnie Cochran or whether you believe Christopher Darden. It's about whether you believe the testimony and it gets the case very complicated and distorts the role of the jury for them to be taking it personally in the way of weather a particular lawyer believes a particular witness.
RIKKI KLIEMAN: And in fact, when prosecutors have done that in jurisdictions around the country, and I know you were a federal prosecutor, especial in the federal court, but certainly in many, many states, there is this body of case law that says cases, even with overwhelming evidence, can get reversed if a prosecutor vouches for a witness.
SAMUEL PILLSBURY: That's absolutely right because everybody knows that the prosecutor has some discretion as to what cases to bring. And if it becomes simply an issue of well, I'm a prosecutor, you believe me. Then it's not really a case that's being tried to the jury. The jury is not deciding on the evidence, they're just deciding that, well, they're a prosecutor, we must have to trust them, and of course the defense attorney just has to defend anyway so we don't trust them.
RIKKI KLIEMAN: There are some very good lawyers around the country who practice on the defense side, who when they go into a state courthouse or a federal courthouse, will have a motion which is called a motion in limini, which is fancy words which really are asking for a direction to the prosecutor to no do a whole laundry list of things that the case law says can reverse a case. Then it's called prosecutorial misconduct. It doesn't mean like someone's done anything really terrible like bury some evidence, it just means simply like saying something like, I think, or I believe, or misstating facts in evidence, or saying something like everybody knows O.J. Simpson committed these murders. So, I think it's just important in terms of education that the public understands that Barry Scheck's objections, in particular, are well taken.
SAMUEL PILLSBURY: That's right, and this is one area that accords in every jurisdiction. Follow the prosecutorial argument a lot more closely than the defense. The defense gets a lot more leeway here and judge's realize that the prosecutor has a special burden and a special responsibility and therefore there's some additional restrictions that they have to abide by.
RIKKI KLIEMAN: Let me ask you something quickly, since the jury's not yet back in the courtroom, about what we were talking about before juries and structured deliberations. Well, it looks like we're going in so we'll save that until later. Christopher Darden is in the midst of his rebuttal closing argument.
Judge LANCE ITO: Just want to make sure we're safe. Mr. Darden, you may continue.
CHRISTOPHER DARDEN, Deputy District Attorney: Thank you, Your Honor. Good morning, again. I'm just about done, just about done. Because I'm very anxious to get this case to you so that you can resolve it, so that we can have some closure as it relates to this case.
One of the things that was mentioned the other day was something about Robert Heidstra. You remember Mr. Heidstra, he was the witness who had the laminated letter from F. Lee Bailey, saying that he was going to be an important witness for the defense. And much ado was made about Mr. Heidstra and why we didn't call, we the prosecution didn't call him, and I think that it was suggested that we didn't call him because he didn't fit our time line. Well, they don't know what we're thinking. They can't read our minds. They called Robert Heidstra in the defense case. They don't know whether or not we were going to call him in the rebuttal case. They don't know that. Robert Heidstra is a very important witness. They called him, fine. As long as you heard the testimony, that's all that mattered. He testified that he left his house around 10:15, right? Isn't that what he testified to? He said he saw the clock in apartment, as I recall. He left with his dogs, he left on a walk. He walked around the block, halfway around the block, and as he approached Bundy, he hear these dogs barking and he told you it was around 10:30. And I asked him some questions, I asked him, did you look at your watch when you first heard those dogs barking? No. All he could do was give you an approximation as to what time he heard those dogs barking and in best estimate, his best guess, was about 10:30. He says he heard Kato the dog, bark around 10:30, that he changed directions and walked down that alleyway. He walked down the alley on the opposite side of Bundy, that is the side opposite from Nicole's condo, he walked down the alley and as he walked down the alley, he hear someone yell ``Hey, hey, hey.'' And he stopped and he paused. And he told you that ``hey,hey, hey'' voice sounded to him to be the voice of young man and he also told you he heard the voice of another man, an older man perhaps, with a heavier voice, remember that? Remember that? And he continued to walk down that alleyway and when he got down to Dorothy he looked west toward Bundy and what did he see? What did he tell you he saw? He saw a vehicle coming east, from the direction of the alleyway, the alleyway that ran up behind Nicole Brown's condo. It was is vehicle, it was the defendant.
[defense objects]
Judge LANCE ITO: Overruled.
CHRISTOPHER DARDEN: I asked Mr. Heidstra, ``What color was that vehicle?'' He said, ``It was white.'' Just like the defendant's vehicle. I asked him if the vehicle had tinted windows, he said it did. You look at the pictures of the defendant's Bronco, tinted windows. Yesterday, someone stood up here and said to you, Heidstra never said anything about Bronco. He said a jeep or a van. I asked Mr. Heidstra about the vehicle he saw and he told you, right here on the witness stand that the vehicle he saw was Blazer or a Bronco. I asked him specifically. I asked him that specifically on pages 36339 and 36471. And at 36339 he told you, he testified. He was a defense witness, he testifed that the vehicle he saw could have been a Bronco. He didn't look at his watch. He didn't look to see what time it was when he first saw that Bronco and what did that Bronco do?
[defense objects]
Judge LANCE ITO: Overruled. Counsel ladies and gentlemen, you've heard all the evidence. As I indicated to you when we started these arguments, Counsel may argue to the evidence and draw reasonable inferences from that evidence, however, you are the exclusive judges as to what facts exist from the evidence in this case. Proceed Counsel.
CHRISTOPHER DARDEN: Thank you, Your Honor. And that's true but this is their witness, this is Robert Heidstra, that's what he testified to here in the transcript, it could have been a Bronco, it could have been a Bronco. That's what he said, Chevy Blazer of a Bronco. Remember that? And I asked him a question, OK, you say a Chevy Blazer or Bronco, I asked him a question at page 36471, I asked him, ``Mr. Heidstra, a Chevy Blazer and a Ford Bronco look very much alike to you, doesn't it?'' And his answer was, ``Yeah, they look alike. Certainly from a distance.'' I would suggest to you that the vehicle Heidstra saw leaving Bundy that night, was a white Bronco. It's a white Bronco that has all that blood in it. It's the white Bronco that's parked askew at the defendant's house. This is their witness. And I said it the other day, and I'll say it again today I don't care what the time is, it doesn't matter. It doesn't matter at all
CHRISTOPHER DARDEN, Deputy District Attorney: It's the white Bronco that has all that blood in it. It's the white Bronco that's parked askew at the defendant's house. This is their witness and I said it the other day and I'll say it again today, I don't care what the time is. It doesn't matter. It doesn't matter at all. He didn't look at his watch the time that he saw that Bronco or that Blazer. And I asked him about that and I asked him if he looked at his watch and he told us he didn't look at his watch. And then I asked him how long it would take to get from Bundy to the defendant's house because, as you recall, Mr. Heidstra watched cars, detailed cars for the Salingers, the people that lived directly next door to the defendant's property. And I asked him at page 36413, counsel, a line through it I asked him ``Mr. Heidstra, would they have enough time to drive to 360 North Rockingham and arrive by 10:52?'' His answer ``Yes. You could do it. Yes sure.'' And I went on to ask him ``You could arrive you could arrive there by 10:45, correct?'' Line 14, page 36413. And at line 15 on that same page, his answer was ``Right. Yes.''
They want you to believe that Kato Kaelin heard the thumps at 10:45 and Ms. Clark will explain to you how it is that we extrapolate some of the facts, some of the hard facts in this case that actually can be disputed when you consider all the testimony and facts that help establish what time Kato Kaelin actually heard those thumps. But it doesn't matter. If Kaelin says 10:45 and that's his best estimate, Mr. Heidstra says ``Hey. There's enough time to drive that Bronco from this death scene, this scene of murder, to the defendant's house.''
And finally we get to gloves. Finally, we come around, full circle, once again, to the issue of gloves. And I watched one of the defense lawyers stand up here and pull a watch cap over their head and ask you what they looked like, if it changed their appearance. Well, you know, in a lighted courtroom at the intersection of Temple and Bundy it probably doesn't change his appearance at all, especially after somebody's been standing up in front of you for two-three hours. But the issue is would it change his appearance, would it effect one's ability to recognize him if it was 10:00 at night? How about 10:03? Will it effect your ability to recognize him in the dark? And what if he had on dark cotton sweats? And what if it was dark out there in front of that condo the way Officer Riske described? What if he had a big knife? These little demonstrations that we saw. And then we saw one of the lawyers struggle with a pair of gloves [unintelligible]. These gloves are size small. The defendant's gloves were extra large. We heard so much about the scriptures. I'm not even going to read it. Just read Proverbs 6 one day when this is all over.
Now, if I'm the messenger, you know I I've delivered the message as best as I could. And the message is that he killed these two people. And that's what the evidence dictates. You know, they mess around with our science evidence and stuff and try to cause you to lose confidence in that evidence, but but Marcia Clark will go back and go over some of the some of the points we think you might be interested in hearing about to sort of straighten that out.
But I know that you're going to do a good job when you go into the jury room. All I could ever ask from you and all that I ask from you today is that you try and be as objective as you possibly can be, that you not allow any passion or emotion or any bias, any of that human feeling those human feelings we all have, to interfere with the decision you have to make. When I stood before you back in January, I said there were many victims in this case. And there are many interests involved in this case. It's an important case to O.J. Simpson and it's an important case to the victims and the families. We just want you to be fair. I just want you to do the right thing. That means the right thing under the law. We believe we've proven this case beyond a reasonable doubt and it's unfortunate it's unfortunate what jealousy does to you. It's unfortunate that obsession it's unfortunate that obsession can do these things to you. It is unfortunate that two innocent people are dead because they got in this man's way.
That's the message we wanted to deliver and I'm the messenger and I'm proud to have delivered it. And I thank you for your verdict in advance in the event I don't get a chance to talk to you then. All of us owe you a debt of gratitude. God bless you.
Judge LANCE ITO, Los Angeles Superior Court: Ms. Clark
MARCIA CLARK, Prosecutor: Thank you, Your Honor. Good morning. How are you? I'm not allowed to ask you that, I just realized. Excuse me. I know you're tired of hearing us talk. I'm going to get right into the evidence because I want to go through what they said. I want to show you how the evidence corrects that and I want to talk to you about logic. I want to talk to you about what makes sense, OK? Because you've been hearing a lot of stuff that really makes no sense. You've been hearing lawyers spin stories and spin yarns for you with no evidence to it. Not only does it have no evidence, but it has no logic. And in that specifically I'm talking about this story about Mark Fuhrman swiping a bloody glove inside the Bronco. That's that's a story. That's an interesting story but it has no substance. Not only does it have no proof to it, but it also has no logic to it and I'll show you why. And that's what I want to talk to you about now. Logic. What makes sense.
In this case, we have seen what the defense has done, and it's been a very contorted, very inconsistent thing. I'm going to point out the inconsistencies to you. But basically, they have jumped from we are stupid bumblers or we are brilliant conspirators. And he includes us in this. And I find that particularly painful, ladies and gentlemen particularly painful, because I've been doing this a lot of years. I didn't start here. I started on that side of counsel table. I was a defense attorney. I know what the ethical obligations are of a prosecutor. I took a cut in pay to join this office because I believe in this job. I believe in doing it fairly and doing it right. And I like the luxury of being a prosecutor because I have the luxury on any case of going to the judge and saying ``Guess what, Your Honor? Dismiss it. It's not here.'' Ladies and gentlemen, I can come to you and I can say ``Don't convict. It's not here.''
BARRY SCHECK, Simpson Attorney: Your Honor [inaudible objection]
Judge LANCE ITO: Overruled.
MARCIA CLARK: I have that right. I have that luxury. This job gives me that luxury. It doesn't give me a lot of money, but it gives me that luxury. I can get up in the morning and look at myself in the mirror and say ``I tell you the truth.'' I will never ask for a conviction unless I should, unless the law says I must, unless he is proven guilty beyond a reasonable doubt on credible evidence that you can trust, that you can rely on. I can never do it otherwise. That's my obligation.
BARRY SCHECK: Objection [inaudible objection]
Judge LANCE ITO: Overruled.
MARCIA CLARK: And that's why I'm standing here before you today because we have proven it to you, ladies and gentlemen. If I thought for one minute there was a conspiracy
BARRY SCHECK, Simpson Attorney: Objection [crosstalk]
Judge LANCE ITO: Be seated. Ladies and gentlemen, would you have a seat in the jury room, please?
RIKKI KLIEMAN, Anchor: Well, you hear and see some upset here. And Sam Pillsbury and I share in the upset. And it has to do with my, I guess, former former life as a lawyer, yours as well. Let's see what's happening right now in the courtroom. We'll talk about this. And it has to do, again, with issues of proper argument.
Judge LANCE ITO: All right. The record is to reflect the jury has withdrawn from the courtroom. Ms. Clark, the last comment that you made, ``If I thought for a minute there was a conspiracy''
MARCIA CLARK: I didn't get to finish it ``it would be my obligation to dismiss this case.''
Judge LANCE ITO: We're close. We're close here, Counsel.
BARRY SCHECK: Your Honor, [inaudible argument]
MARCIA CLARK: Your Honor, in view of the
BARRY SCHECK: This has been highly improper
Judge LANCE ITO: Wait
BARRY SCHECK: I'm sorry.
Judge LANCE ITO: Sit down.
BARRY SCHECK: I'm sorry.
Judge LANCE ITO: You're close, Ms. Clark. I realize it's not a complete thought, but what you can argue is what the evidence shows. You can argue ethical obligations that prosecutors have. I'm just cautioning you that you're close here. You're close to the line.
MARCIA CLARK: OK.
Judge LANCE ITO: You're not over it yet.
MARCIA CLARK: OK. Thank you, Your Honor. I was
Judge LANCE ITO: Mr. Scheck
MARCIA CLARK: Excuse me. May I just ask for one point of clarification? The thought as I completed it is acceptable, is it not?
Judge LANCE ITO: It is.
MARCIA CLARK: All right.
Judge LANCE ITO: But the I's every time the I's get in there
MARCIA CLARK: Yes. The only Let me Let me just mention this. I have never had a defense attorney make an argument like Mr. Cochran made nor have I ever seen a defense attorney get up and ask for jury nullification in this way. But when they do
Judge LANCE ITO: It was very artfully phrased.
MARCIA CLARK: I'll reserve comment. But what I'm saying, Your Honor, is that when a defense attorney does take the gloves off that way, hit below the belt the way Mr. Cochran does, the law permits us to argue our ethical obligations. The Court's aware of that. Under People v. [unintelligible], under U.S. v. Wade, we have the right, then, to argue what our obligations are. I get to tell the jury the truth that I have a luxury they don't have, a luxury I didn't have until I joined this office. They have to represent guilty people and stand up before the jury and say it hasn't been proven, no matter how well it has been proven. I I'm sorry to have to do that.
Judge LANCE ITO: I'm sorry. Counsel, you're objecting to her argument to the Court?
[crosstalk]
MARCIA CLARK: Anyway, I these are not remarks that I make to the jury, but when Counsel takes off the gloves, makes personal attacks the way he has, saying basically that we're criminals, then we have the right under the law to correct that misimpression and to tell the jury we have ethical obligations that prevent us from pursuing a prosecution unless we believe 100 percent
Judge LANCE ITO: There's the problem.
MARCIA CLARK: OK.
Judge LANCE ITO: Unless you believe the evidence shows it.
MARCIA CLARK: Right.
Judge LANCE ITO: You have to be clear. You cannot infer that you have personal knowledge beyond the state of the evidence.
MARCIA CLARK: Right. Agreed. No question. I wouldn't do that.
Judge LANCE ITO: Mr. Scheck
BARRY SCHECK: Your Honor, this they already have. They've gone over the line. Now, as the Court noted, the argument yesterday, and it's one that these prosecutors have to live with, is that they put Mark Fuhrman on the witness stand, they he testified in a way about, you know Mr. Cochran accurately cited the record. He read from it, talking about how he went through all this terrible personal anguish and all these outside issues were raised and he was presented as a totally credible witness. Now these prosecutors have to get up in front of the jury and say he's a racist and a liar. They have to do that because that's what happened. The jury is allowed to consider the fact that they were plainly taken by surprise by the perjury of their own witness. They also have a right to consider the fact that other officers probably knew these facts and never came forward. That's fair argument and fair comment on the evidence. What's unfair argument and unfair comment and clear law is for a prosecutor to stand up and say that ``I prosecute police officers. Marcia and I are the ones with courage.'' And then to go on now and say that she used to be a defense lawyer and now she's a prosecutor and she has the luxury of dismissing cases if the evidence is not there and coming forward if she thought something was exculpatory, et cetera, and then vouching personally for the reliability of the evidence is a highly highly improper form of argument in this state, every state. They've gone way over the line and it's really got to stop. It's really got to stop. And I don't like to sit here and constantly say ``Objection, objection, objection, objection,'' to improper forms of argument and the Court is being patient and controlled in terms of overruling it. But this is way way over the line.
I I mean, I've been teaching law for 18 years. And I never heard this kind of stuff. And I dare say that people I mean, I it's amazing. It's amazing. They cannot say it. And what's particularly galling is that they're saying it when they are the ones that have to live with the fact that one of their principle witnesses perjured himself after they put him on. It hurts. But Mr. Cochran's comments with respect to that are fair on the evidence and trying to vouch in this fashion is improper improper rebuttal and improper form of argument, period.
Judge LANCE ITO: I heard also was ``You can't trust the messengers and you can't trust the message.''
BARRY SCHECK: But those were
Judge LANCE ITO: And wait wait wait
BARRY SCHECK: I'm sorry.
Judge LANCE ITO: And Mr. Darden clearly cast himself as a messenger in his argument. That was a clear, clear shot at the integrity of counsel on this side. And they're entitled to respond.
BARRY SCHECK: Wait a second. I think that's incorrect, and please hear me on it. Mr. Cochran's arguments yesterday Mr. Darden got up and said ``I'm just the messenger sending you evidence.'' Mr. Cochran got up and said ``The messengers in this case are the witnesses. The messengers are Mark Fuhrman,'' oh, he did, ``and Vannatter.'' He talked about these messengers being deceivers and that is the argument. Now, I mean, I I don't see how the Court can allow this kind of vouching if you are inferring that there's some kind of, you know, metaphor crossover here. Mr. Cochran has a perfect right it is a total fair comment on the evidence to talk about these prosecution witnesses as messengers. If Mr. Darden chooses to cast himself as a messenger too, well that's fine. But I didn't interpret that as a comment on Mr. Darden. It was a turn of phrase and he specifically talked about these witnesses. And to the extent that Mr. Cochran is pointing out that Mark Fuhrman was put up there first as a credible witness and now they have to admit that he's a liar, as they did, and they're distancing themselves, that's fair comment. What's unfair comment is for them to get up here and in this fashion vouch for every other witness and every other piece of evidence in a highly improper form. They've gone way over the line. Way over the line.
Judge LANCE ITO: Cite me a case, Counsel. California law dealing with comments of counsel.
BARRY SCHECK: Well, Your Honor, you have discretion here and we all know the basic principles in terms of the American Bar Association
Judge LANCE ITO: And I have cautioned and I have cautioned and I have cautioned them, Counsel.
BARRY SCHECK: Rules I'm sorry?
Judge LANCE ITO: Well, the California State Bar is a bar that is unto itself and has its own rules, Counsel.
BARRY SCHECK: I've read the G on this case and I understand that they can say things that you can't say in other jurisdictions about smoke screens and the rest of it. But in this jurisdiction and in every other jurisdiction there are rules about vouching and they've gone over that line. We want an instruction
Judge LANCE ITO: Well, here's the problem
BARRY SCHECK: I think the Court
Judge LANCE ITO: No. Counsel
BARRY SCHECK: The court should at least give a balanced instruction at this point to the jury that it is not the prosecutor's personal views or personalities or anything else about the evidence that govern. It is their view of the evidence and they should take it.
Judge LANCE ITO: All right.
BARRY SCHECK: I think we are entitled to an instruction like that at this point.
Judge LANCE ITO: What a prosecutor may not do is a prosecutor may not express personal opinion or belief in a defendant's guilt where there is some substantial danger that the jurors will interpret this as being based on information beyond the evidence produced at trial. I have not heard that yet.
BARRY SCHECK: No. That's a that's that's a different that's a different improper form of argument. And I think actually Mr. Darden was pretty close to that when he was talking about ``everybody knows,'' and yesterday he was saying things like ``He's a murderer.'' I think he actually went over that line. But let's put that aside. What I'm most concerned about now
Judge LANCE ITO: Are you saying that there's there is a substantial danger that when a prosecutor stands up and says that the defendant accused of murder is a murderer, that that goes over the line?
BARRY SCHECK: No no no. I'm saying that you just read in terms of a prosecutor's obligation he's got to say things like ``The evidence shows we submit.'' And I think that in terms of rhetoric, he went over that line. But let's put that aside. What I'm most concerned about, and the Court frankly is not addressing here, the Court can't be seriously suggesting that there that a form of argument that says ``We are courageous. We know our ethical obligations. We are telling you that this evidence is correct. If I thought there was a conspiracy, I would come forward and tell you,'' all that everything they've been doing this morning is an improper form of argument. It's improper vouching and, Your Honor, I think you know it. And I think that we have to have an instruction here.
Judge LANCE ITO: You're close here, Mr. Scheck.
BARRY SCHECK: I've made my point, Your Honor.
Judge LANCE ITO: Thank you.
All right, Ms. Clark. I'm cautioning you, though.
MARCIA CLARK: I understand, Your Honor.
Judge LANCE ITO: People v. Bain [sp], 5CAL third, 839 the Court's comments at 848.
MARCIA CLARK: [inaudible]
Judge LANCE ITO: You're cautioned.
MARCIA CLARK: Yes, Your Honor. I'm going to
Judge LANCE ITO: I don't want to hear any more I's.
MARCIA CLARK: Right. You won't. Right. I'm [unintelligible], no more I's.
Judge LANCE ITO: Deputy Smith.
RIKKI KLIEMAN: Sam Pillsbury, I know that I come from a defense background in more recent years so I can certainly go along with Barry Scheck's argument, but you were a former prosecutor. You are a teacher. And you seem to be reacting the same way I am.
SAM PILLSBURY, Law Professor: Yeah. I very much agree with what Barry Scheck was saying. Is that basically Marcia Clark was saying to the jury ``Trust me. I'm a good guy. I never would do anything bad like the defense said,'' and that's improper argument, because the case should not be about whether you trust Marcia Clark, whether she's a good guy or not. The case is about whether the evidence that's been presented proves guilt beyond a reasonable doubt. And it really muddies the waters for the jury here. And I agree that I thought an instruction at this point would probably be very helpful for the jury.
RIKKI KLIEMAN: In most of the case law, as Barry says, in every jurisdiction throughout the country, Barry Scheck mentions the fact that he's objected so he's preserved the error, he then asked for a curative instruction, a special instruction to the jury so that they understand that it is not the belief of the prosecutor. That again, preserves possible error. He must do those things. Isn't that right?
SAM PILLSBURY: That's absolutely right. Just to keep the record clear here for any further appeal.
RIKKI KLIEMAN: What about the question of Marcia Clark saying ``I used to be on the defense side. Now I'm here. I get a lesser salary,'' those kinds of things. Proper or improper?
SAM PILLSBURY: I think it's improper. I think all of this personal background is improper, especially from the prosecution side. Is that that just shouldn't be the basis for the jury believing them or disbelieving them. It really should be based on the evidence.
RIKKI KLIEMAN: And that's really what Judge Ito is saying to her. ``Get rid of the I's and let's talk about what the evidence will show.'' But at this point, well we're going to go into the courtroom and of course at this point the jury has heard, and what is heard, as they say, you can't unring the bell.
Judge LANCE ITO: Ladies and gentlemen, as I indicated to you earlier, argument is a very important part of the case. It's the opportunity to lawyers to actually bring everything together in a logical and coherent way. And I indicated to you that the lawyers may argue the evidence that is in the record and draw from that evidence reasonable inferences for you to consider. Those are the guidelines. I needed to discuss a few matters out of your presence with the lawyers. We're ready to proceed. Ms. Clark
MARCIA CLARK: Thank you, Your Honor.
MARCIA CLARK, Prosecutor: So, as I was saying, if there is evidence of a conspiracy it would be my obligation to dismiss. Pure and simple. And I can go on to the next case.
JOHNNIE COCHRAN, Simpson Attorney: Your Honor, we object to that.
Judge LANCE ITO, Los Angeles Superior Court: Overruled.
MARCIA CLARK: But there isn't. And in this case we have
JOHNNIE COCHRAN: Objection. [inaudible]
Judge LANCE ITO: Overruled.
MARCIA CLARK: I'm going to finish what I have to say to you and I'm going to do it as quickly as I can. What we have here is logic and evidence and common sense, which when you weave them all together you can see what the truth is. You can see what's really happening here. I'm going to start with a very simple example and that is the arguments that were made to you about the notification to the coroner. You might remember the counsel made a big deal about the fact that it wasn't that the coroner wasn't called 'til late. And Mr. Cochran's repeatedly referred to the rush to judgement. Now, let me address that with you for a second, the rush to judgement. The argument has been made that when they went to Rockingham what they really wanted to do was make an arrest, right? The rush to judgement. They had it in mind that they were going to go there and arrest him and he was a suspect and there was a reference made to a remark made by a Mr. Vannatter in January or February of this year that seemed to contradict what he was telling you about his state of mind. Now, I don't know about you folks, but what I do when I have a doubt, when I wonder what somebody really means, whether I can believe them, I look what they do. Look what they do. Like we were all taught as kids. Actions speak louder than words. Yes, they do. People can say things. We all know they can, but let's see what they do? Now, what did they do? OK. Let's look back at the evidence that is not contested, the evidence that stands unrefuted. They were out at Bundy. Commander Bushey told the initial detectives get on out there. Go and make notification at Rockingham. You know that would be a problem for somebody's who famous because if the media finds out it's all over the place. That's a very painful thing. And commander Bushey doesn't want it to happen on his watch that that would happen in this case. So, he told them, go out there. That's what he told you. Did they? No. They weren't sure if they were going to keep the case. I'm weaving the testimony, for you, together, without reading from the transcript. You have it, though, I'm not going to bore you. But Detective Philips did say we weren't sure if we were going to keep the case, if we had the resources. That was a real big problem with this case, because they only had like, I think he said, four or six detectives in homicide over in West L.A. So, they thought it might be taken over by Robbery and Homicide division downtown that has many, many more detectives and more resources. Before they asked, before they moved to make notification which is an important thing to do in a homicide case your first contact with next of kin, is to go and make the notification. Make that contact. Establish that rapore. And there might be some information that you can get from the next of kin or the person you notified that could be very helpful to solving the case. The person could be a witness, OK? Now, especially in this case where they have children in common, he might know who she's dating, or not, because, you know, they're divorced but they still have to have contact. He might know something. It's an important first contact for them to make. So whoever is the handling detective is the one who's supposed to go. This is the testimony you've already heard. I'm not telling you anything new. So, they waited. They waited until they found out if Robbery-Homicide was going to take the case, and sure enough, they did. That's what happened. Vannatter and Lange came out there and I guess they showed up around 4:00 or 4:30, I think it was, all right? So, they were standing out there waiting for quite a long time. Now, when Vannatter and Lange got there , or in between, I think, when it was finally assigned to Robber-Homicide, commander Bushey spoke to them again and said, go to Rockingham. You know, how many times do I have to say this. Go and do it. So, then finally They still didn't go and do it. They still didn't run out there. I can't remember, I think he said it was around the time he couldn't be specific about the time, that's right. But he said he knew that Vannatter was there, that Robbery-Homicide had taken over the case. Now, Vannatter didn't get there until 4:00 or so. The record will refresh your memory, I can't remember exactly, I'm not trying to tell you I am. But it was that time. Even then they didn't go immediately. It was about 5:00 when they finally went to Rockingham, finally went there. Now, think about this. There were a lot of questions asked about why couldn't you have sent a rookie to go make notification. OK, now you know that doesn't make sense. If notification is an important thing First of all, it has to be handled delicately, sensitively by people who have done this before, many times before. Homicide detectives; it's one of the saddest parts of their job. They have to make these notifications everyday, but they know how. And they know how to deal with it. [to juror who sneezes] Bless you. So, they are going to go and do it themselves. It's an important contact. That's their job. That's their duty. OK? So, they can't send a rookie out to do it. But what should they do? Think about this, now. If it is their intent to go out to Rockingham, make an arrest 'cause he's a suspect, there are certain things they should have done. Number one thing, if you take backup? You don't go by yourself; you take backup. You take a couple of squad cars, you make notification downtown, hey, we're going to arrest, and this is an important suspect and, you know, this could be a media event. You make plans. You make arrangements. They did nothing.
BARRY SCHECK: Objection, Your Honor, misleading.
MARCIA CLARK: Zip. They went out there
Judge LANCE ITO: Overruled.
MARCIA CLARK: and they took just the four detectives in their two cars. They went over to Rockingham. That's all they did. What else should they have done, ask yourself?
BARRY SCHECK: Objection. Misleading.
MARCIA CLARK: If they know
Judge LANCE ITO: Excuse me. Overruled. They may argue reasonable inference from the evidence that is in the record.
BARRY SCHECK: [interrupting] On what basis?
Judge LANCE ITO: and has Counsel, have a seat.
MARCIA CLARK: Your common sense will tell you I'm not misleading you. This makes sense. I'm talking logic. I'm also talking logic based on what the witnesses have told you. You know it when you hear it. Now, what else should they have done? If they're going to go an make an arrest that's going to take some time. They could really get wrapped up, they could do questioning, they could take downtown, you know, the things you know happen when someone gets arrested. So, if they know they're going to take a long time, they have a crime scene that has to be processed, they have two dead people lying out there and all that evidence around, what would they do? They would go to somebody who is going to stay at the crime scene and they would say, call the coroner. We're going to be gone awhile. Call the criminalists, we're going to be gone awhile. We need you to get this evidence collected and we won't be here because we're going to make an arrest. Did they do any of that? No. Now, what the evidence has shown and what they've testified to and what their actions tell you is true, they expected to come right back. Two of them would stay with Mr. Simpson, taking care of him, taking him to the station to get his children, making the arrangments and two would go back to Bundy and handle the crime scene. And their actions totally support that. If they expected to be gone a long time, they wouldn't all four go. Or they would tell someone else, take care of business for us, we're going to be gone. They didn't do that. What their actions tell you is, we're coming right back. It doesn't really matter if somebody isn't taking care of business and calling the coroner and calling the criminalists. Logic. Logic. Look at their actions. You don't trust the words, look at what they do. That's what they did.
Right now an argument was made to you about standing the Constitution on its head and that's because I said, look, why don't they call these witnesses. There are witnesses they should logically call. Now, I'm talking about logic. I'm talking about reason. I'm talking about what do you expect? What would you like to hear? These are questions you are entitled to have answered. These are questions that you should consider. These are fair and reasonable questions. And these are questions that do not stand the Constitution on its head.
I told you when I first argued to you in the beginning of all these long arguments that they would be telling you many, many times, the defense, we don't have to prove anything. If you've heard it once, you've heard it 50 times. They did. That's what they said. And that's right. They don't. But when they do, but when they try to, then you have to evaluate the evidence the same as ours. There's no difference. The jury instructions govern all the witnesses. And so you look, what is the quality of evidence that I've been given by the defense? What witnesses have they called? What logical witness that you would expect to be called weren't called? That all tells you something. It's legitimate for you to consider it, you must consider it because as I showed you in the jury instructions beyond a reasonable doubt, you must consider all the evidence. That means everything that was done and not done. And here's an example. Thano Peratis. Remember that? That was the nurse who drew the blood. That was their witness. Now, he was their witness because he was the cornerstone of their case. Very important to make you believe that there is missing blood. But then Now, I think defense counsel made some reference to that, the notion that, we seek some Hank Goldberg yeah, secretely went out and interviewed him. What secret? You know, if you have a question about this, ask the judge. No attorney for either side is required to give notification to the other side. Oh, I'm going to go interview my witness. That makes sense, doesn't it? They don't notify us. We don't notify them. We talked to them. We give them evidence of it. We give them a statement. Here, we talked to this guy. Here's his statement. Hank Goldberg went and talked to him. Mr. Peratis said, No, I didn't measure. No, I didn't look. And I realized I was wrong. I was trying to be very precise. OK? Now, here's the syringe. You're going to have this back there. You can look at it. And what he said was, I turned it over. I had it turned over and I couldn't see the numbers and you'll see when you look at the numbers and all these little lines, unless you're sitting there like this, you're not going to be able to measure precisely how much you've got in there. But if you have it turned over you're really not going to know. But beyond all of that, it just kind of makes sense. If no one tells you you must take this much blood, you're not going to look to take that much blood. You're going to take enough. You take enough for sampling, for testing. And that's what they did.
Now, Thano Peratis is not truly a real important part of our case because we proved to you in many different ways the integrity of the evidence. I'm going to get into the blood evidence and why it's proven to have integrity in just a little bit. Let me start with hair and fiber, though. [she says something inaudible to the ELMO technician] All right. Now, there were a number of misstatements made to you yesterday by Mr. Scheck concerning the hair and fiber evidence. I'm going to go into just a couple of them and one thing that Mr. Scheck said was that Mr. Deedrick and Dr. Lee agreed that hair and fiber association was weak association. Well, here's what Dr. Lee testified to. Page 43168. Question posed to Dr. Lee ``Do you agree with the following statement? `While it is difficult to make absolute individualizations in these areas, the trace analyst can make identifications with a high degree of certainty and can often establish partial individuality of a specimen with confidence based on experience and analytical results?'' Answer ``I would say 80 to 90 percent that statement's correct. They forgot one thing. Depends on samples. Not all the sample you can reach that degree of certainty. Some of the samples, yes you can.'' In other words, it's a very good, what he said, can establish partial individuality with confidence. In other words, it's a very strong method of association. Now I'm going to show you, show you the pictures. And you'll see why they make that strong statement about it.
[places board before the jury]
You may remember we showed you this during the trial. This was People's 480. Remember this? His known head hairs on the top row and then the hairs from the knit cap at the bottom row. And you look at them and you compare and you see. Your eyes tell you. You don't need to look at x-rays. You don't need to look autorads. These were the hairs found in the knit cap found at the feet of Ron Goldman. This is testimony that was unrefuted. No defense expert came in to tell you that this wasn't so.
[places another board before the jury] I have People's 481. Again, the defendant's known hairs; hairs taken from the knit cap. Hair from Ron Goldman's shirt. You can see this.
Mr. Scheck also told you that the blue-black cotton fibers that were found on Ron Goldman's shirt, on the Rockingham glove and on the defendant's socks were very common. That's what he argued to you yesterday. That is not what the testimony said. Let me read to you what Doug Deedrick told you about this. Page 35093. [reading from court transcripts]
QUESTION: Now, you saw a lot of fibers in this case, correct?
ANSWER: A lot, yes.
QUESTION: Was there something unusual about these particular blue-black cotton fibers that drew your attention or made you pay particular attention to them?
ANSWER: Yes. Well, cotton fibers themselves, they are common. There is a lot of cotton fibers out there. What gives cotton fibers significance is that when you add color to them in a specific was, some you see more may be less likely than others. These particular These are Actually, it is a real dark blue. It looks black, but in some areas the dye was not absorbed the same and this may be where the yarns are attached to the fabric. The same thing appeared on the fibers that were recovered from Ron Goldman's shirt. The blueish area also present here. It was recovered from the defendant's sock. The bluish area here is starting to show. Some of these areas can better be shown using instrumental techniques with color because the eyeball sees this as a shade of blue, this as a shade of blue and so forth.
[end of transcript reading by Marcia Clark]
And then he goes into all of the methods that he used to examine these blue-black cotton fibers to determine that they were They did in fact share the same microscopic characteristics. And I was going to read it all to you, but it's just too long. There's a lot of tests that he used and it had to do with the color and it had to do with the dye, it had to do with the appearance and if you need to have it read back, please do, but you also have the pictures, and if you don't want to read it, you can see it. [places another board before the jury] People's 487
Judge LANCE ITO: Miss Clark, will you just show that briefly to counsel?
[Clark turns board toward defense counsel]
Judge LANCE ITO: All right. Thank you.
MARCIA CLARK: And you can look at these fibers. Look. From the Rockingham glove, Ron Goldman's shirt, the defendant's socks. These are things you can see.
Now, there was also some discussion about the defendant having dandruff, if you recall. And it was told to you that the defendant always had dandruff in the off season. That is not what the testimony showed. Here's what the testimony actually showed about that. Page 37441.
[reading from transcript]
QUESTION: And sometimes in the summer when you saw him take care of his hair he would have dandruff and sometimes he would not?
ANSWER: That's correct.
[end of reading from transcrip]
That was from his barber. The other interesting thing that she told us is that unless you brush the hair vigorously the dandruff does not come off. So I asked her
[reading from transcript]
If you don't, if you just brush his hair, the dandruff doesn't come off?
ANSWER: Right. Which means if you don't brush or comb the hair and it just falls off by itself, the dandruff doesn't come off. If you don't do anything to the hair, I guess it will just stay there.
[end of reading from court transcript]
Now, the hairs in the cap did not have dandruff and the defense wants you to believe it couldn't be his hair
[end of transmission]
MARCIA CLARK, Prosecutor: Now, there was also some discussion about the defendant having dandruff, if you recall. And it was told to you that the defendant always had dandruff in the off-season. That was not what the testimony showed. Here's what the testimony actually showed about that. Page 37,441 Question ``And sometimes in the summer, when you saw him take care of his hair, he would have dandruff, and sometimes he would not.'' Answer ``That's correct.'' That was his barber. The other interesting thing that she told us was that, unless you brush the hair vigorously, the dandruff does not come off. So I asked her, ``If you don't if you just brush his hair the dandruff doesn't come off?'' Answer ``Right.'' ``Which means, if you don't brush or comb the hair and it just falls off by itself, the dandruff doesn't come off? If you don't do anything to the hair, I guess it will just stay there.''
Now, the hairs in the cap did not have dandruff, and the defense wants you to believe it couldn't be his hair because he has dandruff. That is not what the testimony showed. That is not what the evidence showed. The evidence showed sometimes he does, sometimes he doesn't, but actually, even if he did, it wouldn't come off in a knit cap because you had to brush vigorously to get out so that it would show. So what you have in the knit cap are his hairs, the naturally shed hairs that are his because he wore the hand.
BARRY SCHECK, Simpson Attorney: Objection, Your Honor. The testimony didn't say that.
Judge LANCE ITO, Los Angeles Superior Court: Overruled.
MARCIA CLARK: You have jury instructions. I spoke to you a little about them before. There was one I didn't talk to you about I want to mention now because I'm going to talk a little bit about Dr. Baden and what he testified to. And that instruction is 2.80. Do you have that on the bench, Your Honor 2.80? [pause while she leafs through papers] Wait, I have it. Thank you.
You have a few instructions. It tells you about expert testimony, and this can be really helpful to you because I think that I think I'm not alone in getting a little bit intimidated by experts. I know they know. They have ``Doctor'' in front of their names, and what do I know. But you shouldn't be. You shouldn't be. You are allowed to evaluate the opinion of a doctor and, if it doesn't make sense, you can say, ``You don't make sense. I don't believe you.'' It doesn't matter if they have ``Doctor'' or ``PhD'' before or after their name. You get to evaluate it because if it's not logical, if it doesn't make sense, it doesn't matter what their title is. And that's what That's basically what the instruction says 2.80. You'll have it back there. And it says the following ``You are not bound to accept an expert opinion as conclusive but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.'' OK. So what that tells you is don't be intimidated by the title. You know what makes sense. And if you find it to be unreasonable, toss it. OK.
Dr. Baden told you some things that were that made absolutely no sense. They defy the laws of gravity. What am I talking about? I'm not going to drag all the pictures out here right now. You'll have them back there if you want to verify this. One thing that he said that I just couldn't believe I was hearing is that the jugular vein cut was the one that caused the blood on Ron Goldman's pants. Now, think about this. This is jumping blood because there isn't a big Then it should be dripping down the shirt, right? Logic tells you that if he's bleeding from the neck, it's going to drip down his shirt and then get to his pants. You look at his shirt. It's not there. The front of the shirt is not blood-soaked in front over the place where the pants are all blood-soaked. So it's very obvious that where the blood came from is the stab wound in the hip. And Dr. Baden's testimony on that makes absolutely no sense.
Another thing that makes no sense, that actually disregards what gravity tells you must be true, but what I think what Dr. Lakshmanan told you as well, and he is medically qualified, and that is this he also said, and this is how he gives you this big timeframe which, by the way, makes no sense all by itself, and I'll talk about that in a minute. He said that there was a period of between five to 15 minutes from the time that the neck wound was inflicted to the time that the chest wound was inflicted. And he based that on the very small amount of blood found in the chest cavity on Ron Goldman's right side. OK. In other words, what he's basically telling you is that blood pressure had so dropped as a result of this jugular wound, he bled out so much, that by the time he got stabbed here, it had to be about 10 minutes later, and that's why there's so little blood in the cavity. OK.
But Ron Goldman was lying on his right side and bleeding out so much you could actually see it in the photographs you'll have back there. There was a tree stump that I think has the number 106 on it. When you have the photographs, look at this, please, because it's blood-soaked, and what they did Well, before they got the actual reference vials of the victim's blood from the coroner was they went and they took blood samples from the place where the victims were lying so they would have some idea ahead of time as to what the victims' blood types were. So they took a swatch from the tree stump near Ron because obviously that was his blood. They also took a swatch from the pool of blood that Ms. Brown was lying in, and that was her reference sample taken from the crime scene.
That's how much he was bleeding out. Dr. Baden doesn't believe in gravity, doesn't believe that that's why he had so little blood in his cavity, doesn't believe that somebody lying on their right side is going to bleed out if he's lying there for a while and says there's so little blood there that means he was already near death, and that means the jugular wound had been bleeding for quite a long time, and that's ridiculous.
I'll tell you why else. You don't even have to be a doctor to figure this one out. Somebody commits murder, they're going to hang around? What was he doing for 10 minutes? Between the time that he inflicts the jugular cut and the time that he inflicts the chest cavity, if you believe Dr. Baden, he's got 10 minutes to kill. The door is standing open. There's no evidence of ransacking. There's no evidence of disturbance. What's he doing playing solitaire out there? What's he That's ridiculous! What are they asking you to buy?
That's why I'm saying look at the jury instruction. You may disregard any such opinion if you find it to be unreasonable. Ladies and gentlemen, that is one of the most unreasonable things I think I've ever heard any doctor say. That is ridiculous.
Judge LANCE ITO: Ms. Clark, if you would slow down just a little.
MARCIA CLARK: I'm sorry. I'm trying to get it over with. So, I'm sorry. Sorry, Chris. While we're on expert testimony EDTA very, very briefly. OK. You were You were told during argument that leather was sent to Agent Martz asking him to refute the allegation that the blood was planted. That is not what the letter says. The letter says I didn't bring the exhibit number, Your Honor. I just have the letter.
Judge LANCE ITO: All right. Supply in course. All right. Why don't you just All right. Proceed.
MARCIA CLARK: The question posed was, ``We would like you to test these items for the presence/absence of EDTA in order to refute the possibility that the stain on the sock could have come from the reference sample.'' Now, what is the point of that? When we heard that the defense was going to make this outrageous allegation, I thought, well, I won't close my mind to anything, let's find out.
Judge LANCE ITO: Be careful here.
MARCIA CLARK: OK. So we sent the reference samples, and we sent the sock, and we sent the rear gate samples to Agent Martz for testing. Let's find out. And what was the result? No EDTA. No big surprise, but no EDTA. Now, he came and he testified, and he showed you these charts. And I want to show them to you one more time because it made it so clear, and perhaps you will recall he tested his own blood unpreserved, he tested the evidence on the gate and he tested the blood on the sock. And guess what. His own unpreserved blood and the gate stain and the sock stain all came out looking the same. They came out looking like this. [points to exhibit] You take all their charts together, so what you see here is the results of all of those things.
Judge LANCE ITO: Do you know what the exhibit number is?
MARCIA CLARK: That's 544-E, Your Honor.
Judge LANCE ITO: Thank you.
MARCIA CLARK: OK. That was Agent Martz' own blood and the evidence. That means the gate, the rear gate blood, and the sock blood. That's what that looked like. So unpreserved blood and the evidence had all those jagged peaks. OK. Here's 544F. This is what it looks like when we have EDTA-preserved blood. All the same. That's That stuff all comes from the test tube with EDTA in it. Does that look anything like the jagged peaks that we just showed you? That's pretty easy. But Dr. Rieders thought he could get you to blind your eyes and listen to his title and say, ``Well, gee, I'm not qualified. Maybe they do look alike.'' I mean it's ridiculous, but he did that. And he insults your intelligence with this.
But what was even worse and what shows you really that this is a man whose opinion is for sale is that his initial report said, ``I found two of the three ions on the gate and on the sock.'' And he thought that was going to be good enough to say, ``Well, could be consistent with,'' and he could slide around with that. One unfortunate thing that happened after he wrote that report was Agent Martz then said, ``Gosh, I wonder what it would be like if I tested my own blood without any EDTA in it.'' Took blood out of his arm, and he went and he tested it, not any EDTA, just regular, old blood, and guess what! It looked just like the gate. It looked just like the sock.
Well, when Dr. Rieders found that out, he realized, ``I've got to do something because they've just proven me completely wrong.'' So what he did for the first time on the witness stand was he got up there, and he said, ``Oops. I found another ion on the sock.'' And he tried to show you that one of those peaks matches something else. It was really reprehensible.
And I know I got a little bit excited with Dr. Rieders, but this is a man This is a man Let's not forget where he comes from. Let's not forget what he did before. I asked him questions about this other case, the case of poisoning. You may recall a case of oleander poisoning in which he was asked by the district attorneys of Ventura County and this county to find out whether a man died of natural causes or had been poisoned to death. Now, that sound pretty serious, doesn't it? That's a murder charge that can or cannot be brought based on what his test shows, and he did preliminary screening tests. He did not use state of the art. He didn't even know what state of the art was available at the time, and he came back with the answer, yes, poison is present. Poison is present. And had the D.A. and the defense attorney not joined together to go out and find an expert who had much more sophisticated equipment who could do definitive testing, an innocent man would have gone to prison for murder because Dr. Rieders was so sloppy and so out of date and had an opinion for hire for whoever was bidding that's what would have happened
ROBERT SHAPIRO, Simpson Attorney: Objection.
MARCIA CLARK: but fortunately, the D.A. said, ``No, we're going to go and check that again.''
Judge LANCE ITO: Counsel Counsel, that does go beyond the scope.
MARCIA CLARK: And that's why you have to view very, very carefully the experts, see if they make sense, see if you can rely on them, see if they are believable, see if they are logical. And consider the fact that they're for hire. Sure, that makes a difference. Dr. Baden Dr. Baden, who came and told you that gravity doesn't work, paid over $100,000 in this case. He's very charming. He's very affable. I enjoyed seeing him in court, but hearing him was something else. Over $100,000 he got paid in this case.
There was also a reference made to you. Mr. Darden began to address it about golf balls. You may recall. And then it was argued as well. It was argued that the defendant had that little dark bag that he insisted on picking up, and that was for carrying golf balls to the tournament in Chicago. Now, first of all, what kind of sense does that make? You take your own golf balls to a golf tournament? Don't you think they're going to give you some there? But it's worse than that because that's not what the evidence showed.
Allan Park was specifically asked about that. [reading from transcript] ``Can you tell us, sir, whether you saw any golf balls in that lawn area that night?'' Answer ``No.'' Kato was asked the same question.
MARCIA CLARK, Prosecutor: And Mr. Darden began to address it, about golf balls? And then it was argued as well, it was argued that the defendant had that, that little dark bag that he insisted on picking up and that was for carrying on golf balls to the tournament in Chicago. Now, first of all, what kind of sense does that make? You take your own golf balls to a golf tournament? Don't you think they're going to give you some there? Well, it's worse than that because that's not what the evidence shows. Allan Park was specifically asked about that ``Can you tell us, sir, whether you saw any golf balls in that lawn area that night?'' Answer ``No.'' Kato was asked the same question. ``Do you ever see balls in relationship to a bag that was similar to the bag you saw in the driveway on June the 12th?'' ``No, I don't think so. I don't remember seeing that. I think there were balls in the garage, kind of just balls that were there.'' And that was a question asked by Mr. Shapiro of Kato Kaelin. So, not only doesn't it make any sense but there's no evidence to support it at all.
Now there was something else said to you, represented, that Mr. Kaelin and pictures and a videotape also refute, and that is a side door. You may recall that defense counsel mentioned to you why would it be Mr. Simpson walking in through that front door, when Allan Park was sitting out there watching him? He could have gone in from the side. Not true, and the evidence proves it's not true. First of all, Mr. Kaelin testified that the laundry room referred to by counsel was not really used, but we have better than that for you, ladies and gentlemen. We have a videotape, we have that inventory videotape that counsel brought in, that shows that door, that shows on June 13th that there were things, a little stepladder and stuff like that, in front of the door, which gives you a clear indication that door was not in use, and that's the condition of that area on that, on the afternoon of June the 13th. Do we have a clip? Bless you.
Judge LANCE ITO, Los Angeles Superior Court: What exhibit is this? What exhibit is this, Mr. Ferretlow? All right, thank you, Mr. Wood.
MARCIA CLARK: Back up. OK, OK, see the laundry room in there? See that step ladder? See the step ladder? See the bag of laundry is stacked in front of the door?
JOHNNIE COCHRAN, Simpson Attorney: Your Honor, I object to this.
Judge LANCE ITO: Overruled. Counsel, it speaks for itself. All right, counter's at 3:01 PM. Thank you, counsel.
MARCIA CLARK: Thank you. Now, do you put a step ladder, do you put a basket of laundry in front of a door that you use? So there was no other way in, and that is why. That is why All an Park saw the defendant walking in the door that night, and I'm going to tell you something, ladies and gentlemen, that was the defining moment of this trial. That was the one, because when you understand that the defendant was out that night, when you understand that he lied to Allan Park about being asleep, when you understand that that Bronco was moved and that he was out in that Bronco, and that 10:03 call to Paula Barbieri was because he was out there making that phone call, then you understand how the defense falls apart. Then you understand where he was when his whereabouts were unaccounted for, and Allan Park's testimony is unrefuted. Allan Park came in and told us the truth and he told it consistently. Bronco was not there, and neither was the defendant until 10:54 excuse me, thumps on the wall, 10:52. Now, that's one more important point.
JOHNNIE COCHRAN: Misstates again.
Judge LANCE ITO: Overruled, counsel.
MARCIA CLARK: That's another important point and this is why phone records are a good thing, and you'll have the testimony. I'm not going to read to you anymore. You're probably tired of hearing that. You have it in the record. I asked this specifically, ``Kato, did you look at a clock, did you look at your watch when you heard that thumping noise on your wall?'' ``No, I didn't.'' ``So was this an estimate?'' ``Yes, it' an estimate.'' He's estimating because he's not looking at what time it is. He says, ``I called Rachel around this time, about half an hour later, I heard the thumps.'' It's an estimate. We had to go with that until we realized that Allan Park had a phone record. He had a phone record that said when he made a call and said when the call ended, and it was at the end of that call to his boss, or from his boss, that he saw Kato Kaelin out in the side yard, and Kato Kaelin told you and it's unrefuted, and it's uncontested that it was two to three minutes after the thumping that he was out in that side yard. That's what he told you, and that means that the thumping occurred at 10:52, and then Allan Parks saw Kato in the side yard at 10:54, at the same time as he saw the defendant walking in the door. That means that two minutes after the thumping the defendant is going into his house, and that means the thumping was done by the defendant, and they want to make fun of the fact that he ran into an air conditioner, because it's his property and wouldn't he know better. Well, I don't think that he hung out on the south pathway a whole lot. That's not where Mr. Simpson would go, that's where a repairman would go, maybe a maid would go. He doesn't go down there, and anyway
JOHNNIE COCHRAN: Objection, calls for speculation.
Judge LANCE ITO: Overruled.
MARCIA CLARK: And that dark, and that narrow little pathway in a hurry, when you're pressed, and you're frantic, you're not going to be looking to see everything that's coming. You're running, you're running. He's in a hurry, and that's why that happens. Now, there was also some statement about there was nothing around that glove, but Dr. Lee, Dr. Lee said differently. Page 43,200, question, ``Now, in addition to that, Doctor, when you were at the Rockingham location, did you have occasion to find any items that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning unit, near Kato Kaelin's house?'' Answer, ``Yes, sir.''
Judge LANCE ITO: Hold on.
BARRY SCHECK, Simpson Attorney: Your Honor, it's of Your Honor.
MARCIA CLARK: It's in the record, Your Honor.
BARRY SCHECK: No, no, no.
Judge LANCE ITO: Hold it, hold it, hold it. With the court reporter, please.
RIKKI KLIEMAN, Anchor: They're at the side bar, and it's not completely clear to me, precisely what Barry Scheck is objecting to, unless this was something that the jury didn't hear. I don't know, Sam Pillsbury. Do you have a thought?
SAMUEL PILLSBURY, Law Professor, Loyola School of Law: No, I think it's something, it's an objection about what is in the record and what is not. So, a question about what exactly, a factual reference that Marcia Clark is making.
RIKKI KLIEMAN: Marcia Clark in her rebuttal argument certainly did not come forward with what many people thought she would come with passion and fervor and rhetoric, but she and Mr. Christopher Darden are both saying that they are the voice of reason and logic. The fervor belongs to the defense, and in her dealing with the prosecutors' version of reason and logic, she started out really rebutting some of the defense points, in particular dealing with the issue of notifying Mr. Simpson versus being a suspect, notifying the coroner and the criminalist, following that with Thano Peratis. These are really defensive points for the prosecution, these two areas,aren't they?
SAM PILLSBURY: It is. This has been, so far, a very defensive rebuttal, and that's although, in a sense, by nature, defensive you come back, counterpunch to what the defense is presenting. These are not strong points for the prosecution. These are places where the prosecution can present alternate interpretations, but there's by no means the most powerful part of the prosecution's case, and so, it doesn't create, it doesn't create a very strong impression, at least so far.
RIKKI KLIEMAN: And you have been a prosecutor, of course, in the past, and in rebuttal argument, rebuttal is often what you save, in order to leave the jury with the most powerful evidence that you have, the most powerful argument, and would you have started with your strong suits rather than your weak ones?
SAM PILLSBURY: I would have expected that, yes, because especially at this point, stage in the proceedings. Everyone is very tired. You're not going to get many points made, you want to do it right up front. My suspicion is that Marcia Clark is planting to do that at the end, but that may be sort of too late in the sense of making the maximum impact.
RIKKI KLIEMAN: What about this argument we just heard about the laundry basket and the step ladder being next to the door, and her calling it this definitive moment case, because he couldn't have come in the side door. SAM PILLSBURY: The argument sounded better until I saw the video. The video didn't seem as strong as her description of it, perhaps if you took more time to take a look at it, but again this doesn't seem to be one of the really strong points of the prosecution. It would seem as if it would still be possible to go in through that side door, at least from what we saw here this morning, and perhaps it's just habit that Simpson or whoever is this figure going in, never goes through that area, but this isn't one of the really powerful moments, although the Park testimony is one of the most important parts of the prosecution's case.
RIKKI KLIEMAN: Without doubt, without doubt. I thought that her hair and fiber argument was one of her stronger moments and now we're going to see after the side bar conference where she was resuming, she was in the vicinity of Allan Park and Kato Kaelin.
Judge LANCE ITO: All right, thank you, counsel.
MARCIA CLARK: It was also represented that Dr. Lee and Dr. Baden both agreed that the amount of struggle would have been a very long one. Dr. Lee, in fact, didn't say that. He said something a lot less certain than that, and I'll read to you what he said. Question, ``Can you tell us blow by blow what happened here?'' Answer, ``No, I cannot. That's a good question.'' Question, ``All right, thank you, and Doctor, would it be fair to say that if we cannot tell blow by blow what happened here, you cannot tell blow by blow what happened, then it's difficult to get any kind of a scientific estimation of time.'' Answer, ``That's correct.'' That's what Dr. Lee said. Now, with respect to Dr. Baden, it was represented to you that Dr. Baden said the perpetrator would have been covered in blood. That's not true you can have all of Dr. Baden's testimony read back. I went and looked at it. It's not there. He didn't say that. He didn't say it. Not only that, but there own expert, Mr. MacDonnell, had some interesting things to say about what kind of blood or how much blood you'd ever expect to find. As a matter of fact, we read the title into the record ``absence of evidence is not evidence of absence.'' This makes sense a crime can happen in many different ways. Use your logic, use your common sense. If you're standing behind somebody, cutting their throat, they're bleeding out, and they're not bleeding on you. So, you get some on your hands, maybe you'll get a little bit of spatter, but you're not going to be covered in blood, and you're certainly not going to be covered in the kind of blood that you're going to track into the Bronco because it isn't getting on your back. And that's why when you think about this, you think about it logically, but don't let the record be mis-represented. You want it read back, they will do it for you, and don't hesitate to ask, ladies and gentlemen. Don't hesitate. The most important thin is that you base your decision on what's there. What's really there, not on what some lawyer tells you there, not on what you wish was there, or what I wish was there what's there. I know you'll do that.
Do you want me to break?
Judge LANCE ITO: Yes. Let's take a break at this point. All right, ladies and gentlemen, we're going to take our noon recess at this time. Remember all my admonitions to you don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you. Don't allow anybody to communicate with you with regard to the case. We'll stand in recess until 1:30.
RIKKI KLIEMAN: Something happened at that side bar conference. We don't know what it is at the present time, but Ms. Clark was in the midst of wanting to read back some testimony. It concerned Mr. Park and Mr. Kaelin and as you saw when Ms. Clark came back to the podium, that she left that topic entirely, went to Dr. Lee and Dr. Baden, and what has happened today for Marcia Clark, is what she's attempting to do is hit certain points of evidence that she feels she needs to rebut. It's been a very defensive rebuttal, not a rebuttal throwing her strong suit to the jury. We're going to talk about that in just a moment. We're going to talk about that in just a moment. Stay with us.
RIKKI KLIEMAN, Anchor: It looks like Judge Ito is on the bench. We're going to go into the courtroom and see if there's any argument at this point.
Judge LANCE ITO, Los Angeles Superior Court: The jury is not present. Mr. Scheck, you wanted to be heard on page 43200.
BARRY SCHECK, Simpson Attorney: Yes, Your Honor. A few things to say about that. The first point to be made is that I think in Ms. Clark's argument she started to say that there was a statement, ``There was nothing around the glove. But Dr. Lee Dr. Lee stated differently.'' Now she starts with the question, ``Dr. Lee, when you were at the Rockingham location, did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning unit near Kato's house?'' Answer, ``Yes, sir.'' That's all that's in the record at this point.'' Now, as the court noted at the bench, I would say there's three reasons, at least, that this was an improper comment and the we should have an instruction to the jury, which is my request, that there is no evidence in this case Dr. Lee found blood on the air conditioner. And it's for at least these three reasons. Number one, there is a clear ruling in this case by this court that we've all had to live by that presumptive tests are not admissible for showing that blood was present. And that is a clear ruling. There was a ruling that in the impeachment of Dennis Fung that I had opened the door with respect to the Bronco, and the Court made a limited finding that they could offer testimony about the extent of presumptive testing in the Bronco. So they know that that rule is in effect, and we've all lived with it and been very careful with it since. So that's point number one. Point number two, as the Court noted at the bench, when one goes on to read the rest of the testimony of Dr. Lee in this area he the answers that were elicited were not that he had found blood on the air conditioning when Mr. Goldberg went on and continued asking him the question. And, in fact, as I had noted on the record, and I'll get to the third point here, that he cut off Dr. Lee when Dr. Lee was about to give a further explanation when he indicated that he had found he had done presumptive tests presumptive tests on the door knobs, some sink traps, and air conditioning. And then Mr. Goldberg says, ``I'm just asking about the air conditioner.'' Answer, ``I saw it in different places,'' and that's just about tests. And then Mr. Goldberg said, ``That's all right, Your Honor. I'll move on. I think he answered the question.'' Now, I came back the next day.
Judge LANCE ITO: Is there a report by Dr. Lee that says that he did any testing there?
BARRY SCHECK: Yes, he did presumptive testing there. But I came back the next day, and it's at 43380 of the record. And what happened, Your Honor, is that I indicated to the Court at that point have you read this?
Judge LANCE ITO: No, I didn't I don't have the 43380.
BARRY SCHECK: Oh.
Judge LANCE ITO: I think Mr. Byrne [sp] gave me the next volume. Volume 214, please.
BARRY SCHECK: Yes. I came back the next day, Your Honor. I think it actually starts at 43379. I came back the next day and made an objection on the record. And what I pointed out was that when I listened to the I had thought that when Mr. Goldberg at this time, this is what I indicated on the record, said ``That's enough Dr. Lee,'' that what he was doing was trying to cut off the witness so there would not be testimony about presumptive testing which would have violated the Court's rule. And I thought that that's what he was doing. When I listened again the next night to the tape, because, frankly, all these commentators were saying, ``Oh, there's evidence of blood on the air conditioner.''
Judge LANCE ITO: You didn't really listen to those people, did you?
BARRY SCHECK: Well, no, I listened to the tape of the testimony. And when I listened to the taste of the testimony and the implication, I became concerned.
Judge LANCE ITO: All right, Counsel. Excuse me. What page?
BARRY SCHECK: It's I think it starts at 43379 and goes on to 43380.
Judge LANCE ITO: All right, proceed.
BARRY SCHECK: Do you see where I'm beginning? It was just before we took up the issue of the Fuhrman tapes. Should I read it, or is the Court reading?
Judge LANCE ITO: I'm reading it right now.
BARRY SCHECK: OK.
Judge LANCE ITO: All right, I've reviewed the 43379 through 43381. All right.
BARRY SCHECK: So as that, I think the record indicates that I immediately approached the court and I said that I was fearful that even though it wasn't explicitly stated on the record that the prosecution might argue that there was blood found on the air conditioning from the way that questions and answers were brought out and the way Mr. Goldberg cut them off and that I had misinterpreted Mr. Goldberg. He was cutting it off for purposes of putting this inference, which was improper in the first place because of the ruling on presumptive tests in the record, instead of trying to cut Dr. Lee off before he got into an area that was improper. And, in fact, as I indicate in the record that Dr. Lee was about to say that presumptive tests on sink traps, metal surfaces like air conditioners, door knobs and on that kind would always give false positives because of the nature of the metal surface and the bacteria, et cetera, which was what he was about to testify to and they knew it because in interviews with Dr. Lee that's what he had said. In any event well, I won't that's what Dr. Lee told me. And I haven't I offered to bring in an affidavit to that effect. And then the Court indicated, as I put that objection on the record and it was clear, and I though in effect the court had ruled on that with respect to indicating to the People that that timely objection had been made on the record, and if they wanted to come forward and make this an argument they were going to have to present arguments to the Court that this was a fair inference from the evidence. I thought that's how the record stands right now. And they should, you know and this kind of this kind of comment, given the fact that the Court had made a clear ruling in this case that presumptive tests are not proof of blood, number one, number two, that the testimony itself does not support that contention, number three, there was a timely objection noted on the record to the Court giving the prosecutors clear warning that if they wanted to make this argument they'd better come in here and persuade the Court that it was fair comment on the record. All of that being said, it seems to me highly improper and against the rulings of this Court for them now to argue that there's blood on the air conditioner, reading these questions and answers. It's not what the record states, it's not what the ruling of this court is, it's misleading to the jury, and we're entitled to a curative instruction to the effect that there is no evidence Dr. Lee found blood on the air conditioner. Highly improper argument. Clear misconduct.
Judge LANCE ITO: Ms. Clark?
MARCIA CLARK, Prosecutor: I'm going to allow Mr. Goldberg to address it because he was the one that did the questioning. But I remind the Court that the record says exactly what I said to the jury.
HANK GOLDBERG, Deputy District Attorney: Thank you, Your Honor. Good afternoon.
Judge LANCE ITO: Good afternoon, Mr. Goldberg.
HANK GOLDBERG: The issue of presumptive blood testing is one that we've addressed on a number of occasions with Your Honor. And the state of the record was that presumptive blood testing does not come in. We have abided by that, although the defense has not. They asked Mr. Lee questions about the walkway with respect to parallel line imprints on June 25th that he photographed. Those were presumptively tested. There were no confirmatory tests. Dr. Lee offered the opinion that they were blood in his opinion based upon his forensic knowledge and was not specifically asked by Counsel to testify that he had done blood testing and that that's how he knew. So he was basically relying on his generalized training and experience. It looks like blood, therefore it is blood. The basis for that opinion, we know, outside of the record, is a presumptive blood test. That came in. The Court allowed it in. Then with Mr. Bodziak, Counsel asked again questions about Mr. Lee's presumptive blood testing and even called it that, blood testing, even though Mr. Scheck and I had had an agreement outside the record that he would not raise the subject of presumptive blood testing with Mr. Bodziak without first clearing it with the Court, and he just went ahead and did it on two occasions. I put before the jury the fact that presumptive blood testing has taken place. So I don't understand all the ins and outs and the exceptions and the rights and the wrongs with respect to the Court's ruling. All I know is that it seems to be that when the defense wants to establish that's something's blood they don't seem to have difficulty doing it, even if the only basis for it is a presumptive blood test. And that being the case, we believed properly that we could do the same thing. Now, in this question that I asked Dr. Lee, I did not ask him about presumptive blood tests. I simply asked him, ``All right. Now, in addition to that, Doctor, when you were at Rockingham location did you have occasion to find any item that in your forensic opinion was consistent or appeared to be blood in the area of the air conditioning next to Kato Kaelin's house?'' Answer, ``Yes, sir.'' No question about forensic blood tests. I'm asking him based on his experience and training as a forensic serologist, a very highly regarded one, whether it appeared to be and was based upon his forensic opinion. Then I asked him, ``And was that something that you believed that you thought appeared to blood?'' Answer, ``I test some door knobs, some sink traps, and air conditioner.'' ``I'm just asking you about the air conditioner.'' ``I saw in different places,'' period. Those no indicating from the transcript that I cut him off. And I said, ``That's all right, Your Honor. I will move on,'' because I was fearful that he was going to start talking about presumptive blood testing, which he had not to heretofore. He simply told what he had what appeared to be the case and what his opinion was as a forensic expert. Now, the Court has allowed police officers to come in and say, ``Something appeared to be blood,'' or, `` I thought something was or even something was blood.'' And we know California courts allow this, and Your Honor has called this in this trial. And I don't know why the world's perhaps highly the most highly regarded forensic serologist, Dr. Henry Lee, can't come in here and tell us that something based upon his experience is straining and his observations appear to be blood. That's what this is. Now, as to the good faith belief, other than that it's in the record, and Dr. Lee has never been shy about trying to qualify and explain his answers. We also have a good faith basis because we have a report in which he said the same thing, that he tested this with ortho-toldine test, which is highly reliable, which Dr. Lee regards to be reliable, and that it got a positive. I do not believe that I ever spoke to Dr. Lee about this question in my conversations with him at all. And that
Judge LANCE ITO: All right. Mr. Goldberg, let me ask you this. Did he indicate that he saw something that appeared to him to be blood and then he tested with ortho-toldine?
HANK GOLDBERG: In where?
HANK GOLDBERG, Deputy District Attorney: [in progress] Dr. Lee has never been shy about trying to qualify and explain his answers. We also have a good faith basis because we have a report in which he said the same thing that he tested this with ortho-toldine test, which is highly reliable, which Dr. Lee regards to be reliable, and then it got a positive. I do not believe that I ever spoke to Dr. Lee about this question in my conversations with him, at all. And that
Judge LANCE ITO, Los Angeles Superior Court: All right, Mr. Goldberg, let me ask you this did he indicate that he saw something that appeared to him to be blood, and then he tested it with ortho-toldine?
HANK GOLDBERG: In where?
Judge LANCE ITO: In his report.
HANK GOLDBERG: In his report, there was a red stain that he tested, and with ortho-toldine test, and it was
Judge LANCE ITO: On the air conditioner?
HANK GOLDBERG: On the air conditioner, and it was positive for blood, so so that was the good faith basis for my my question. Now, on on on the As to the materials that are staring on 43380 excuse me 79 of the transcript, I was unaware of this, that this conversation even took place, because I was not in court during it, and and was not aware until counsel made this argument during Ms. Clark's argument.
I know how Your Honor has conducted this case, and I know based upon the experience that I've had in this court that Your Honor would not have ruled on an issue like this without my being here. And you did not rule because this was my area. It was my witness. I knew this testimony. And I would be the person who was prepared to deal with it.
Now, on 43381, Your Honor says, basically Well, Mr. Scheck says on 43380, lines 27 to 28, ``I just want to make clear that we have an objection to that.'' And then Your Honor says, ``All right.'' And then on 43381, lines 13 through 14, Your Honor says, ``This is a comment for the purposes of making a timely objection, I take it then?'' Answer by Mr. Scheck, ``Right.'' The court, ``All right. Let's launch into the McKinny matter.'' And then you continue on with the 402 hearing on McKinny.
So, there is no ruling whatsoever on with respect to this issue. If counsel wanted to make a motion to strike, I suppose that could have been done. We've closed evidence. We have introduced all of our exhibits. Ms. Clark is arguing about something that is in the records. She read it verbatim. She is entitled to do this under the court's rulings. And I do not see any basis whatsoever to prevent Ms. Clark from continuing on this line, very briefly, of argument. It's an important point because it's directly contradictory to what Mr. Cochran represented to this jury. And that she should be allowed to proceed on this issue.
BARRY SCHECK, Simpson Attorney: First of all, it would seem to me that there's a clear question of waiver as to the whole argument he just made now for a very simple reason. I came forward and put this objection on the record the next day indicating that it would not be Dr. Lee's testimony that that was blood because of the false positives from testing sink traps, drains, et cetera. And that would have been his answer to the question, and the record is ambiguous and misleading with respect to that because he cut off the answer. So, I put them on notice. It is not an excuse that can be tolerated at law that somebody sitting at this table, the very next day after Dr. Lee got off the witness stand, didn't go upstairs and tell Mr. Goldberg that this was said so he could come back down and we could settle the record on this issue, and it could be clear what could be offered in closing argument and what couldn't be.
That is not an excuse. Lack of continuity in the district attorney's office or the fact that nobody will call him up so he can come up and argue this as though the rest of them here are incapable or don't understand this issue is not an answer. It's clearly waived. It is clearly waived. And what is particularly nefarious is that all of a sudden this issue arises during rebuttal. This is planned, Your Honor. And it was exactly what I objected to. It is an unfair inference from the evidence. It is not supported by the record even of the questions and answers, and it violates the clear instruction that we were all operating under here. It is in bad faith because I indicated that would not be the answer that Dr. Lee gave to the question. And it is quite different to be saying that certain points in time, ``I look at stain and I say the black imprints could be consistent with blood.'' And they can certainly make objections and settle the record at that point. I made my objection. I made it clear. The ruling was clear. It is outrageous for them to be arguing that this is blood on the air conditioner from this part of the transcript. When the record was made their opportunity to correct it was there. They have to come into this court, and it's just outrageous.
Judge LANCE ITO: All right. Thank you, counsel. The question was to Dr. Lee, did he see anything that in his opinion was consistent with or appeared to be blood in the area of the air conditioning unit near Kato Kaelin's bedroom. And the answer was, ``Yes.'' And then the question later was focused back on the air conditioner, and the answer was, ``I saw in different places.'' And that's the state of the record. There is no mention of presumptive testing that was done, although Dr. Lee's answer does say, ``I test some doorknobs, some sink traps and air conditioner.'' And I accept the representations of counsel that what was done is the ortho-toldine test. The fact that Dr. Lee, I think, is competent to say, ``I saw something that appeared to me to be consistent with blood.'' The problem is that it was not confirmed. I'm going to direct counsel to move on from that [unintelligible].
All right. Let's have the jurors, please.
MARCIA CLARK, Prosecutor: Your Honor, [unintelligible] montage for the defense that Mr. Cochran indicates he like to interpose an objection to. Let me indicate to the court that what it is a synthesis of evidence that has been admitted already.
Judge LANCE ITO: All right. May I see it?
MARCIA CLARK: Yes.
[playing the 911 tape]
Judge LANCE ITO: What is the connection between the audio and the montage? Is that the audio that you anticipate playing at the same time as the montage?
MARCIA CLARK: Yes. It goes in tandem with the argument that's going to be made to present it, which is the motive for the murder.
Judge LANCE ITO: Do you think the tape directly relates to the last two photographs?
MARCIA CLARK: I'm sorry?
Judge LANCE ITO: Does the audio tape directly pertain to the last two?
MARCIA CLARK: I can't I'm sorry. The last?
Judge LANCE ITO: The last two photographs?
MARCIA CLARK: Yes. That's the point. That's the case, Your Honor. That's the whole that is it that the motive for these murders is the nature of the problem. And that's why she wound up there. It's we're synthesizing the evidence. I mean, we do it through verbal argument, saying we have the motive, it carries forward and up till the date of June the 12th, and then we do it with pictures, pictures that have been admitted into evidence. All of this had been admitted.
Judge LANCE ITO: Mr. Cochran.
JOHNNIE COCHRAN, Simpson Attorney: This is unfair. It's incredibly inflammatory. Those tapes have nothing to do with the photographs that are up there. She's wants to argue that, then so be it. This is improper rebuttal, Your Honor. They try to spring this on us at the last minute. The tape that she's referring to, it's a different time than the photographs. It's a photograph from 1989; the tape is from '93. And the pictures they try to link all these things together. They have nothing to do with this evidence. This evidence of other offenses was limited for a very limited purpose. So, the court is aware of that, the reason it was in there. And this would be incredibly unfair. And it's typical of what the prosecution is doing in this rebuttal. This is outrageous, Your Honor. They're vouching. They're doing all of these things, taking things out where they know they're wrong, and yet they're trying to do this. At the 11th hour, when she has maybe an hour or so left, we're faced with this. This is outrageous, Your Honor, and you should stop us. They held this back, you know, to keep us from dealing with this until the last minute. Now, we see it at 1:55 on the last day of her argument. This is outrageous, Your Honor, and the court should put a stop to it. This is the end of it, and we should get on and get this case to the jury. They're never going to stop, unless you exercise your wisdom and discretion and stop it.
Judge LANCE ITO: Thank you, counsel. Ms. Clark.
MARCIA CLARK: Your Honor, I don't think that Mr. Cochran has the right to use the word outrageous. This is the man who argued Mark Fuhrman was commensurate with Adolf Hitler. This is the man who demanded jury nullification, but this is proper argument.
Judge LANCE ITO: Let's address the issue.
MARCIA CLARK: Yes.
Judge LANCE ITO: Are these items in evidence?
MARCIA CLARK: They're all in evidence, Your Honor. And the purpose for which we're using the tape being played over these photographs is the very purpose for which the domestic violence matters were admitted, which is for the purpose of motive and identification, and that's why it's been synthesized this way. I think we're using it to an entirely appropriate purpose as the court as permitted us to do with the jury instruction that limits it. We have, I think, appropriately argued it. Mr. Darden has appropriately argued in that vein. But this is argument, and we are synthesizing all of it. The domestic violence is the underlying theme in the case. It is certainly the motivation in the case, and it goes to identification as well.
Judge LANCE ITO: All right. I think the record is not completely clear because we did not identify what all these items are, but what we started out with were photographs of the domestic violence injuries, the Polaroid photographs.
MARCIA CLARK: Yes, Your Honor. I should be more specific. They are the domestic violence photographs with respect to the 1989 incident, then, I believe, they are the photographs from the safe deposit box. And then we have the photographs from Rockingham that pertain to this case, and they conclude with the photographs of Bundy pertaining to this case.
Judge LANCE ITO: And this is while you're playing the first portion of People's exhibit what?
MARCIA CLARK: What' What is the number?
Judge LANCE ITO: This is the '93 tape?
MARCIA CLARK: It is both the '89 and the '93 tapes.
JOHNNIE COCHRAN: Your Honor, may I say something when you get an opportunity?
Judge LANCE ITO: Ms. Clark are you concluded with your argument?
MARCIA CLARK: Yes, Your Honor.
JOHNNIE COCHRAN: Your Honor, the in the '93 incident, as you're well aware, the tape they played, there was only the back the French doors were damaged. There was no physical anything. And the '89 incident, they ran these two things together. They have nothing to do. They are juxtaposing. This is an interpretation they are placing on the evidence. If they want to show the evidence, that's one thing, but to play the tape in conjunction with that, that's a production from the district attorney's office at this 11th hour. And it's unfair. It's absolutely unfair. It's inflammatory. This is improper rebuttal. We've seen all this evidence in addition to that. The court has told us on several occasions, you're going to stop us, when there's redundancy. And this is absolutely redundant. It's improper. The prejudice far outweighs any probative value because they are meshing things that don't follow. They do not follow. This evidence was limited for a limited purpose. And they're tying things together and making a conclusion, just she did with this incident regarding the air conditioning. And that's unfair. Vouching for things, it's wrong, Judge, and it shouldn't happen.
Judge LANCE ITO: Is that the word for the day?
JOHNNIE COCHRAN: Vouching?
Judge LANCE ITO: Yes.
JOHNNIE COCHRAN: Vouching is the word for the day, Your Honor. The I-word. And it's personally vouching, and they know it's wrong, and everybody knows it's wrong. And it shouldn't happen, Judge.
Judge LANCE ITO: All right. Ms. Clark, I do think it is a problem with the soundtrack because you've run the two soundtracks together the '89. Is this two tapes?
MARCIA CLARK: Both have been admitted, why is that
Judge LANCE ITO: I understand. It's misleading because you can't tell that they are two tapes. There's no break with them.
MARCIA CLARK: Well, I'll tell them.
Judge LANCE ITO: Is my concern.
MARCIA CLARK: How about if I tell the jury, we're running them together?
Judge LANCE ITO: When do you anticipate doing this in your argument?
MARCIA CLARK: At the end. I'll introduce it. I'll explain to the jury, we've run the two tapes together. And I have to. I have to tell them what they're seeing and hearing. I wouldn't I don't want to mislead them. I want to tell them the truth. I want them to know exactly, I want them to hear exactly what it is that they're hearing. I want them to know. That's the '89 tape, and then we're going to run the '93 tape, and we're going to run the pictures from '89. We're going to run the pictures from the safe deposit box. I want them to be very clear about what they're seeing and hearing. I don't want there to be any mistake about it.
Judge LANCE ITO: All right. With that caveat, the objection is overruled.
All right. Let's proceed. Let's have the jury, please.
RIKKI KLIEMAN, Anchor: Every time we think there will not be another issue in this case, there is another issue.
And I'm here with both a prosecutor and a defense lawyer. And Michele Levine, yes it is true that all of this is in evidence, it just never was to use the word in court synthesized. Is this an appropriate use of argument for a prosecutor, should you say?
MICHELE LEVINE, Deputy District Attorney: I would say this is more than appropriate. What's happening is the jurors, I think, now are expecting to see to not only see, hear, feel the evidence. And what Marcia Clark is trying to do is to present that so that they're hearing the sounds of Nicole Brown, her own voice, at the same time that they're visually seeing the pictures, and perhaps even hearing Marcia Clark argue the point. It will be very, very much more persuasive to have that as the overlay of these photographs than merely just to show the photographs. And so it sets up her theme. So, yes, I think it's appropriate, and perhaps, very persuasive in the case.
RIKKI KLIEMAN: Oh, I don't have any doubt that it's persuasive.
Tony Alexander, you're a defense lawyer. What about the whole idea that prior crimes are not introduced to show a propensity that is if you are a bad person once, you are bad person again but they're supposed to be there for a motive or intent. Is this too prejudicial?
ANTHONY ALEXANDER, Criminal Defense Attorney: Well, I can understand the defense argument at this point because this is something that just seeing for the first time right at the end of the case. And a lot of times you would expect that the prosecution would come in a preview something in front of the judge if there is a possibility that it might be objected to. I think the prosecution really ran a risk here because if Judge Ito had ruled against them, then it would have taken some of the thunder out of what they were presenting. And this is the toughest part for the defense because they have to sit on their hands and can't respond.
RIKKI KLIEMAN: OK. Well, we've seen both views. We're in the court room now.
Judge LANCE ITO: your concluding summation.
MARCIA CLARK: Thank you very much, Your Honor.
Good afternoon, ladies and gentlemen.
I forget where I left off, so I'm just going to pick up with something else. There were some remarks made about the treatment given to some of the witnesses. And I confess that there were some I could have been nicer to. Mark Partridge came in to testify to the defendant's demeanor when he came back from Chicago. And this, kind of it's a really good example of what I'm talking about. He made notes, detailed notes the next day you might remember of everything that the defendant said to him and everything that he said to Mr. Simpson, and he copyrighted them. He copyrighted them. What does that mean? That means that you have a proprietary interest in the material. The very next day after he speaks to him, he's going to sell these notes. He's going to make some money off of this.
JOHNNIE COCHRAN: Objection
Judge LANCE ITO: Overruled.
MARCIA CLARK: He's got some proprietary interest in this. Now, what kind of man is that? What kind of a person is that? And it's very indicative. It's very, very consistent. You heard from Ellen Aaronson. She came up to testify. She was the one, she said called into the police to say that she initially said that she heard the dogs barking at 11:30. Then she saw the preliminary hearing, and she realized, ``I better call back again and change the time so I can make myself witness.'' You know, a groupie. And, yeah, I don't like that kind of person. That doesn't belong in a criminal trial.
JOHNNIE COCHRAN: [unintelligible]
Judge LANCE ITO: Sustained.
MARCIA CLARK: That's the kind of person that's going to
MARCIA CLARK: OK. That's the kind of person that will offer any testimony they can to get their 15 minutes of fame. That's not the kind of testimony you can trust.
At the end of the trial, or the end of the People's case, we had or maybe it was the whole trial, we had the judge took judicial notice of something. And I'm sure you were wondering what did that relate to? And the judicial notice that he took was that the moon on the night of June the 12th was a crescent moon, 12 percent illuminated. You may recall that. That's very important for two reasons. First and most important reason is it tells you what the lighting conditions were like that night. It was not a full moon. It was a dark night. Witnesses, they're testimony has been referred to by Mr. Darden, have confirmed that. It was dark. Officer Riske made it very clear, it was dark. Sukru Boztepe, who was walking with the dog, who said, ``I would not have looked up there. I wouldn't have looked up there. I would not have seen the body if the dog had not stopped and looked at the pathway.'' That's important. So, you have that judicial notice taken. That means it's an undisputed fact you are to accept, a 12 percent crescent moon.
When I crossexamined Ms. Aaronson and I asked her what was the moon like, ``Oh. It was a full moon.'' ``Are you sure?'' ``Yes, I'm very sure.'' It's in the record. Have it read back. She was very sure. She was very wrong, too. She also testified that she was very sure that she called a police officer to give her statement to him the first time on June the 14th. I showed her the police report. It said June the 15th. ``Are you sure?'' ``I'm very sure.'' She's very sure about a lot of things, but one thing that she really didn't know was when she was walking down that street. And you know how else you know she wasn't down that street when she said she was? Because Mark Storfer said he looked out his window at 10:23.
I read it and I reviewed it, now I can't remember it exactly. You can have it read back because I think that what he said was 10:23.
Judge LANCE ITO: All right. Counsel. Remember, you're the judge of the facts.
MARCIA CLARK, Prosecutor: [in progress] know that she wasn't down that street when she said she was, because Mark Storfer said he looked out his window at 10:23. I read it and I reviewed it and now I'm so tired I can't remember it exactly, you can have it read back, because what I think he said was 10:23.
Judge LANCE ITO, Los Angeles Superior Court: Excuse me.
MARCIA CLARK: In any case
Judge LANCE ITO: There's an objection, please stop.
MARCIA CLARK: I'm sorry. I didn't hear.
Judge LANCE ITO: All right. Remember, you're the judge of the facts. You're the sole judge of the facts. Thank you, counsel. Proceed.
MARCIA CLARK: And you know, if you have a doubt about something I'm saying, please have it read back to you or look at your notes, OK? Because I'm not trying to play fast and loose here. But it was within two minutes of when she passed Bundy that he looked out his window. If she's walking down Bundy in that light-colored outfit that she said she was wearing on that night, he should have seen here when he looked north on Bundy, because he said he looked out the window, looked north, and he saw no one walking there, which is kind of which is actually consistent with the other witnesses who don't say that they saw anybody either. All of the witnesses that were called by the defense somehow were in the same place, but none of them saw each other. It's very weird.
Defense has raised the issue about there being why wasn't there dirt? Why wasn't there mud at Rockingham, tracked in the house on that light carpet. There wouldn't be there was you saw the bloody shoe prints and they faded out halfway down the Bundy walk to the point where there were no visible bloody shoe prints on that walk at the end of the walkway. Then you saw the imprint on the Bronco, so that whatever blood was left on the shoe was picked up by the soft tufts of the carpet. By the time he gets back to Rockingham, there isn't much left there. Whatever blood, whatever mud, whatever dirt he's got on his shoes, he's tracked off. This is common experience, you know. Your blood or mud or whatever you get on your shoes, it doesn't stay there forever. You walk, it comes off. And as you walk, more comes off. By the time he gets home, there's not a lot of excess there. Maybe there's some trace amount, but you're not going to notice that on a carpet. And so, that in itself, says nothing and the testimony of their experts, Mr. MacDonnell and even Doctor Lee, does not dispute that.
JOHNNIE COCHRAN, Simpson Attorney: Objection.
Judge LANCE ITO: Overruled.
MARCIA CLARK: Of greater importance of greater importance and I think actually yes, Doctor Lee even testified. He was asked specifically if somebody walked through dirt, walked through berries, would you necessarily see it. And his answer was, ``You might see it and you might not.'' The absence of evidence is not evidence of absence and that's what their witnesses have said.
Now, there was an issue raised with respect to EAP. That's a conventional blood marker, OK? And you may recall there was testimony that Nicole Brown had an EAP type of BA. The blood under her fingernails was typed and came back with an EAP of B. We had testimony from Greg Matheson to indicate to you that that was degraded, that the BA degraded to a B. In order to confirm that it was her blood and not the blood of someone else, they did DNA testing on that blood and the DNA confirmed that it was her's. It was her blood and that it had degraded. And it degraded because number 1) the EAP marker degrades very rapidly, number 2) her hand was in wet blood and blood in a wet state degrades quickly, more quickly than it would on a dry gate, for example, or in a dried condition.
Now, there's more to that. First of all, Gary agreed with Greg Matheson Gary Sims agreed with Greg Matheson in his conclusion that the blood under her fingernails as hers and not that of another perpetrator. But the
Judge LANCE ITO: Overruled. Excuse me, counsel. You need not make that instruction any further. I've instructed the jury that they are the sole judges of what the facts are in this case. And if counsel chooses to argue a line of argument that is in contradiction to what these jurors find to be the facts, they do so at their own peril. The objection is made. Thank you. Ms. Clark.
MARCIA CLARK: Thank you. Moreover, Doctor Lee, who was called by the defense to testify never contradicted that and he agreed that Greg Matheson was a good scientist. There was some testimony, I think, from Doctor Baden that you can get somehow the blood of someone under your nails without getting the skin under your nails. I don't see how that can possibly happen, but
BARRY SCHECK, Simpson Attorney: Objection.
Judge LANCE ITO: Overruled.
BARRY SCHECK: Objection.
Judge LANCE ITO: Overruled, counsel.
MARCIA CLARK: What is interesting is that the defendant's EAP type is also a BA, also. Now, the blood on the rear gate, that blood that came back to the RFLP testing, making the defendant 1 in 57 billion or something, obviously it's an identification. That's his blood. There's not even any dispute about that. That's his blood on the rear gate. That blood also had an EAP that was a BA degraded to a B. That blood also
BARRY SCHECK: I object.
Judge LANCE ITO: Hold on. Counsel, with the court reporter please.
RIKKI KLIEMAN, Anchor: The lawyers have gone to the sidebar and it certainly cannot be any secret why they have gone. Barry Scheck has continued to object, over and over again, about what he thinks is not the evidence in the record. And as we're watching from here, we can see Hank Goldberg is up at the sidebar, it looks like he has a transcript in his hand. One of the issues is, of course, the legitimacy of a lawyer like Barry Scheck making an objection that he thinks is appropriate to make. At the same time, he has a great risk that the jury may be upset with him. And Michele Levine, you're a prosecutor of many years. The defense doesn't have a right to come back here in rebuttal, sur-rebuttal. This is the end. So what are some of the things that they might be trying to do to a prosecutor here?
MICHELE LEVINE, Deputy District Attorney: Well, a number of things. They don't get to come back with many things that they'd like to and so what they're trying to do is get the prosecutor off kilter, somehow break of the pace, as well. In addition, if they are able to get an objection sustained, what they're able to do as well is keep out something that might have been very persuasive and that Marcia Clark might have counted on. But they also are trying to perhaps communicate to the jury that the prosecutor is trying to do something that she shouldn't be doing and a lot depends on how the jurors are viewing Marcia Clark and Barry Scheck at this point, and perhaps even clues from the judge himself. If they're looking at the defense attorneys and they're saying to themselves, ``Why are they trying to keep us from hearing what Marcia Clark has to say,'' that obviously is detrimental to the defense and a pleasant bonus for the prosecution. If, however, it's the other way around and they're saying, ``Why is it that Marcia Clark is doing something improper,'' then, of course, that's of benefit to the defense, in making objections at this stage.
RIKKI KLIEMAN: Tony Alexander, you've been practicing defense law a long time. I would think you would use objections sparingly in closing argument, but if you need them, you've gotta go for it.
ANTHONY ALEXANDER, Criminal Defense Attorney: Yes. You have to preserve that record. You don't want to be considered to have not objected when you needed to, because on appeal, they might say that, you just kind of sat there. Secondly, you don't want to object unless you feel that you really have a good faith basis, because if the jurors feel that somebody is misstating evidence, I think that that is probably one of the worst things you can do in final argument. So, if you feel that the prosecution is misstating evidence, you want to be able to make sure that your objection is well taken, maybe document it. At that point, ask to approach the bench. In some way, preserve the fact that you know the evidence is contrary to what is being said in Court. And I think that's Barry Scheck feels at this point. He feels that it is being misstated.
RIKKI KLIEMAN: Barry Scheck is someone who has clearly been up on the law. He's been a good cross-examiner. He has risen from being this teacher in a law school in New York coming in for some DNA help and rising to really be, almost I suppose you could say, the second chair in this case, since he gave the closing argument with Johnnie Cochran and he's precise and so he has a pretty good handle on this record. This particular time, there has to be some issue, because, even looking at the monitor that we can see that they are taking this one very seriously. So I wonder, listening to what Michele Levine had to say, who gets the resentment or the praise from the jury? Is the jury thinking, ``Why are they trying to keep this from me?'' Or is the jury thinking, perhaps, the defense is right and that the prosecution is doing something wrong? Is there any way to gauge that?
ANTHONY ALEXANDER: I think it's very hard to gauge because we don't know who the jury really trusts. It becomes a question of who do they trust? Who do they think is being open and honest with them? And who do they feel is trying to hide something from them? So, at this point, it's really hard to tell, other than I think Barry Scheck is showing a lot of passion. I mean, the jury can see that. The jury is very involved with his objections and even though the judge has been admonishing him, he has been persistent with his objections. The jury may be taking a cue from that, that this is something really serious and that they need to pay attention. They may be making notations because they might want to have some read back on this issue when they go in the jury room to deliberate.
MICHELE LEVINE: I was going to say, one of the detrimental things about objecting, and I agree with Tony, is that it highlights an area. And it may be an area then, that the jury thinks, ``Wow, Barry Scheck thinks this is really important.'' And much to Barry Scheck's chagrin, it would be then an area that maybe the jurors would right down and read about and highlight that area. That's why you do want to use them sparingly. But I agree, you do have to preserve a record on appeal, in case there are issues to be discussed. But what you've seen is that Judge Ito has indicated that he has heard that objection. And he said, and admonished counsel, you do not need to keep objecting this way. In other words, ``I will consider this a standing objection. Each time something about this is raised, the record will be clear that your objection will be noted.''
RIKKI KLIEMAN: In fact, this was the closest Judge Ito came to really giving a curative instruction, though I don't think he intended it that way. But what he finally told the jury was basically what counsel says is not evidence and if the jury remembers it differently, that counsel has argued at his or her peril, which is what the defense had wanted to happen early this morning.
ANTHONY ALEXANDER: Yes, he had indicated that he he didn't give an indication he was going to give any kind of curative instruction and then he just sort of gave it. So I guess he thought about it and figured it was appropriate and that that might cure it and in fact, he may have felt that that may have satisfied the defense to the point where they wouldn't object.
But I think that the prosecution at this point has to be very careful. Because every time Marcia Clark gets close to the end, we know that Barry Scheck is going to objection.
Judge LANCE ITO: Thank you, counsel.
RIKKI KLIEMAN: OK, thank you for those comments. Let's go back in.
Judge LANCE ITO: Proceed.
MARCIA CLARK: Thank you. I'm going to finish today, ladies and gentlemen. I promise. I promise. But it's just so important. I really want the record to be straight. I want you to know want you to know. On the rear gate, 117, OK, there was testimony to indicate that Mr. Simpson's EAP marker was a BA. So was Nicole's, a BA. There were testimony in the recording indicating that a BA could degrade and turn into a B, because the A bands drop off. And it was early testimony. That's what happens. I can degrade that way. That was the testimony.
The blood under her nails that had the DNA that typed back to her, also had an EAP result of B, which Greg Matheson testified was indicative to him that the EAP marker had degraded, that the A bands had dropped off. That was his testimony.
With respect to the rear gate, he testified as well, that's the rear gate where the defendant's blood is, DNA came back to him. The EAP marker that he has a BA just like hers, came back degraded to a B, and here's the testimony that he gave. He stated as follows, ``And was 117 identified as being one of the rear gate stains from the Bundy location?'' Answer, ``Yes, I believe it was.'' ``And you got a B-like pattern onthat?'' Answer, ``I called it a B question mark, inconclusive, yes.''
BARRY SCHECK: I object.
Judge LANCE ITO: Proceed.
MARCIA CLARK: I just read it to you. If you want to have it read to you, ladies and gentlemen.
Judge LANCE ITO: I've ruled. Proceed.
MARCIA CLARK: The Page Number is 25,965. If you want to read it again. What that indicates to you, ladies and gentlemen, is that there was also testimony, I should tell you there's another conventional marker for serology called PGM, maybe you remember that. And the PGM on the rear gate was also degraded. And there was testimony, I believe from Greg Matheson, about that as well. That's important for a couple of reasons. Number 1) with respect to the blood under her hails, what it indicates is that it's her blood, it's her blood. Number 2), what it also indicates is that the blood on the rear gate was degraded. There was PGM degradation and EAP degradation, which indicates to you that it was out there for awhile.
MARCIA CLARK, Prosecutor: [in progress] Number one, with respect to the blood under her nails, what it indicates is that it's her blood it's her blood. Number two, what it also indicates is that the blood on the rear gate was degraded. There was PGM degradation and EAP degradation, which indicates to you that it was out there for a while. It's all in the record. It's very logical and it's very consistent.
I could go into greater depth on this and talk about, you know what they're trying to tell you, ladies and gentlemen, is that a very, very sensitive, what they called ``exquisitely sensitive'' test, in the PCR, picked up Nicole but not the blood or or not the blood of the real killer that was under her nails. Well, how could that be? Conventional serology is not nearly as sensitive as PCR, not nearly, so the EAP marker that Greg Matheson testified was breaking down under her nails, that isn't nearly as sensitive. They want to point you to that and say that's the blood of the real killer, in contradiction to the testimony of Greg Matheson and Gary Sims, and yet we have very sensitive DNA testing that says its hers and they say ignore that. It doesn't make any sense. The blood under her nails is hers. That's what makes sense. That's logical.
There was also testimony there was also some points made about bindle number 47, the infamous bindle number 47, that's one of the Bundy blood trail drops, and in that, Dr. Lee testified, I believe, that there was the bindles that were placed into I mean, the swatches that were placed in the bindle were obviously still wet when placed in there, and some of the sizes and shapes of the swatches matched the imprints of blood on the bindle, and one did not, and a big deal was made about this. I'm not really sure why, 'cause it's inconsistent. Remember I told you I'd point out inconsistent defenses? Their defense seemed to have been all along that the Bundy blood drops that all came back to the defendant were contaminated. Right? Well, with this testimony from Dr. Lee, it would seem they're trying to say that there was some kind of planting going on, because one of the little imprints in the bindle didn't match. I don't know which one they want to choose, but the truth of the matter is that Collin Yamauchi said he took one of those little swatches out for testing, so of course there's going to be one imprint there that doesn't match those swatches, because one of them is gone, he tested it. There's no big mystery here. It's very simple. It's very, very, very simple. And it's interesting that they really did not tell what they don't make a big deal about, which I don't understand, and was testified to, is that item number 42 item number 42 is Nicole's blood pool. Remember I told that they took a representative sample of the blood underneath Nicole and the blood that was right near Ronald Goldman and the tree stump. OK? His was number 41, hers was number 42. Number 42, then, was her blood, and in that one also they have
BARRY SCHECK, Simpson Attorney: Objection.
Judge LANCE ITO, Los Angeles Superior Court: Overruled.
MARCIA CLARK: they have imprints. There was one imprint, I think, that there was testimony that didn't match the size of the swatch. What, they're planting Nicole's blood? You know, that would be the logical inference to be drawn in her own blood pool? That would be ridiculous. But you see what I mean that exposes the fact that all of these arguments about the minutia make no sense when you look at the big picture. You look at the big picture and you realize, ``Well, there's nothing sinister here.'' You know, open the doors, open the windows, let in the light here. Blow out that smoke. Because when you look at the whole picture, you see the whole truth. It's very, very simple.
All right, I'd to talk to you a little bit about contamination. There was a lot talked to you about that during this trial, I know. And it really is not as complicated and it really is not as easy to do as they've been making you think, and I'd like to show you what I mean by that with a few slides. I'm not going to I'm going to try not to say things like substrate control and reagent blanks and all that stuff. I'd like to talk about it the way I talk about other things everything else in my life except for this science stuff. All right, here are the reasons why you can have faith and you can rely on the validity of the results of the testing of the Bundy blood trail.
Number one, you've heard us talk about it too many times the substrate controls were clean. They should have showed contamination, and they didn't, and they were tested and they came up clean, and what that gives you is quality assurance you know you can rely on the result, because you have this. The bindles were closed that's very important. Remember, if you will, the testimony concerning opening of the blood vial the defendant's reference vial and they were saying that when the blood vial was opened that that somehow contaminated the bindles and the swatches that were taken from the Bundy walk, that there was some aerosol effect and his blood was spraying all over the place. Well, the problem with that is is that Collin's testimony was when he opened the blood vial of the defendant's reference blood, he was 10 to 15 feet away from the swatches and these swatches were in closed bindles. And not only that but the bindles were inside envelopes that were closed. Now, what testimony have you heard in this trial that DNA can fly from a test tube into a closed envelope, through a closed bindle onto the swatches? None. In fact, there's testimony to the contrary.
And that brings us to the next. There was no vacuum in this test tube. This was not a vacutainer. This was a syringe and it's already been shown to you. And the testimony was
BARRY SCHECK: [unintelligible objection]
Judge LANCE ITO: Sustained. [unintelligible], Counsel, not a syringe.
MARCIA CLARK: I'm sorry. Isn't that what it is?
BARRY SCHECK: No.
MARCIA CLARK: Thano Peratis?
BARRY SCHECK: No. It's a vacutainer tube.
MARCIA CLARK: No.
Judge LANCE ITO: No.
MARCIA CLARK: No. He said it was a syringe, not a vacutainer.
Judge LANCE ITO: Syringe. I'm sorry. I stand corrected. He said a syringe.
BARRY SCHECK: Tube.
MARCIA CLARK: He said a syringe.
BARRY SCHECK: No vacuum in tube?
MARCIA CLARK: You have the tape. It was not a vacutainer that was used. It was a syringe. And there was testimony concerning this from Collin Yamauchi as well. And by the way, while we're at it, let me point out something else. Mr. Scheck argued yesterday that Collin Yamauchi, when he opened up the defendant's reference vial spilled blood on his gloves and spilled it on the Kimwip and it sounds to me like he was spilling it all over the place and, I guess, if that's true then there is no missing blood 'cause it got spilled. But the truth of the matter is and the testimony was that, as Collin Yamauchi told you, when he opened it he thought he might have gotten a little bit when a little bit on his gloves and that he immediately changed his gloves and threw them away before he went to handle anything. So, you don't have any problems with flying DNA and you don't have the kind of you don't have the contact that you need to have in order to show contamination. And by the way, I should indicate to you that Gary Sims whom the defense endorses as being a very good scientist indicated that he too has had the experience of opening a reference vial and getting a little bit of it out and then you just, you know, you wipe if off, you clean up, it's fine.
OK, all of the swatches that were tested on the Bundy walk were consistent. They all came back to the defendant. That's important for the following reason. If you have contamination what you should expect to find are results that are out of sync willy-nilly, if you will. What should have happened is you should have seen the defendant's blood type coming up, for example, in the sample that was taken from the pool of blood under Nicole where it shouldn't be. You know. Remember I told you about 41 and 42? Forty-one came from
BARRY SCHECK: [inaudible objection]
Judge LANCE ITO: Overruled, Counsel.
MARCIA CLARK: From the area near Ron Goldman. There was a tree stump that he was curled around. And there was blood on that tree stump. And they recovered it as a representative sample from the crime scene of what his blood type would be. If this was, in fact, contamination and the defendant's type is flying all over the place, why don't we find it in Ron Goldman's crime scene sample? Why don't we find it in the sample taken from the pool of blood underneath Nicole? We don't. If you had contamination
BARRY SCHECK: [inaudible objection]
Judge LANCE ITO: Overruled.
MARCIA CLARK: it should be in other places. Places where it doesn't belong. But you don't have that. You only have the defendant's blood type coming up in the places where the killer dripped blood. This is the other point that was made by the defense and in order for you to believe that the results of the Bundy blood trail were the result of contamination, you must first believe that all of the DNA on all of the swatches completely and totally degraded. Now, when you think about the fact, as was brought out in testimony, that you can recover DNA through PCR analysis from Egyptian mummies, Egyptian mummies, then how can you possibly buy this story about stains that were recovered a few hours ago completely and totally degrading, every single one of them? All the swatches for all of the drops
BARRY SCHECK: [inaudible objection]
Judge LANCE ITO: Overruled, Counsel. Have a seat.
MARCIA CLARK: completely degrading to the point where they're able to pick up contamination? It makes no sense. It's completely illogical. It stands science on its head.
So, this is a list of all of the reasons that I've just told to you. For all of these reasons, spindles bindles in envelopes were closed. Substrate controls were clean. Swatches were tested and typed consistent with the defendant which otherwise you would expect to have willy-nilly, you'd have weird results happening. Every drop in the Bud in the trail would have had to have completely degrade in order to pick up somebody else's type. And the DNA didn't fly across the room.
Now, there's something else that you should know about this is the following. We did conventional serology. If you recall, on one of the blood drops on the Bundy walk, item number 49, we did conventional serology. And that means no DNA stuff. That's just the regular what we call PGM markers. You heard them talk about that. We did a PGM test on the item number 49. That came back to the defendant. It put him within .5 percent of the population that could have deposited that blood. So, even if you do not take into account the DNA, even Dr. Gerdes their expert conceded that conventional serology is very hardy stuff and he said ``No problem with contamination for PGM typing.'' That testimony is 40,198 to 40,199 if you want to review that. He said, in fact, that the conventional testing when conventional serology comes back the same as DNA testing, it's a good cross check for the validity of your results.
MARCIA CLARK, Prosecutor: If you want to review that. He said that, in fact, the conventional testing, when conventional serology, comes back the same as DNA testing, it's a good cross check for the validity of your results. And we have that here. We have that. Dr. Lee also told you that his lab does DNA testing. He felt that molecular biologists like Dr. Gerdes should not tell forensic scientists what to do or how to do it, or when to do DNA testing, and he thinks, he said that forensic scientists are in the best position to know. That was Dr. Lee's opinion. He even indicated in the portion of the transcript you can have read back, he was asked a series of hypothetical questions. For example, that an officer would go to crime scene and pick up blood on his shoe, and then go and give that bloody shoe to the criminalist to test for DNA and he was asked, ``Dr. Lee, could you get, would you get valid result if you did such testing? Wouldn't you be worried about contamination because you didn't collect carefully? It's collected by picking it up on your shoe.'' He said, ``No, you could get valid results doing that.'' Even doing it that way and you know we didn't do that in this case. You know we didn't do that in this case. You know we picked it up correctly in this case.
All right, so we talked about contamination. Let's talk about the planting. First of all, the socks with respect to the socks, there was testimony and then there was argument about this sheet, and you're going to have it. It's in evidence, isn't it, Your Honor, the blood search sheet, work sheet, yes, it is. Good, good! You'll be able to see it, you'll see the whole thing. The whole controversy, all the shouting about this, and Michelle Kessler testified to it late in the trial, it showed that as to the socks, there was a notation that there was to be blood search done, at the moment that they looked at them, there was none obvious. Now, what the defense wants you to believe is that they had already done a blood search and there was none obvious. When you look at the sheets, you will see what the truth is. As Michelle said, ``It's really very simple.'' You can see that in the column where it says blood search, it's a scheduled item list of things to be done. A blood search was to be done. It had not yet been done. You want confirmation, check the testimony of their witness, Dr. Baden. Dr. Baden was asked about that and Dr. Baden made notes about his interview or his contact with Michelle Kessler early on in the case. And here's what they had to say. They were going over Dr. Baden's notes of when he was reviewing the evidence at page 41270. Question And what does that say?
Answer Number 13, two dark socks, no analysis yet.
Question Do you see anything written regarding no blood observed?
Answer I we didn't write that down. No, there was no blood observed or else I would have included it.
Question Now Doctor, what does no analysis yet refer to?
Answer Ms. Kessler told me that no analysis had yet been done on the socks by the Los Angeles Police Department and we didn't do any further analysis on it.
That was the testimony of Dr. Baden. That's what Michelle Kessler told him. There was some further testimony that you might find interesting from Dr. Baden and that's concerning how visible blood would be on those black socks under normal lighting conditions such as we're in here right now. You may recall that I asked Dr. Mr. MacDonnell about that a little bit and he said no, you'd need high intensity light because those dark socks, it's very hard to see blood stains on them. At page 41272, there was questioning of Dr. Baden that went as follows Question What was the lighting like at the time of your observations?
Answer Not very bright. It was a little better than the better lighting than in here presently but not very bright.
Question Not what you would describe as the kind of ideal lighting for conducting a close visual examination of something like a dark pair of socks?
Answer Yes, that's fair.
Question There was no high intensity lighting, was there?
Answer That's correct.
Question And high intensity lighting id the kind of lighting is the kind of lighting that you would like to have when conducting a close visual inspection of an item like black socks, right?
Answer That's correct. Yes.
Big mystery. Now what's even sillier about this argument, number one thing it seems that what the defense is arguing here is that somebody went and took the socks out of the hamper and put them on floor. First thing I ask you ladies and gentlemen, why? Why? Why not just come and say we went through his hamper, we found the socks, we took them. Why not? What difference does it make. It makes it more incriminating somehow that the socks are on the floor. It doesn't matter. The question is what's on the socks, not where the socks are. They're in the hamper, they're on the floor, same thing. No difference. If you'd rather consider them as having been in the hamper, consider it. That's not the way he left them, but you know, what's the point of doing something like that. That's silly. That makes no sense. Now think of this, too. Why would you it would seem that what they're basically saying, there was no blood on the socks, that's what they're saying, right? Why would you plant a blank pair of socks and then go back two months later and say, I forgot, I was supposed to plant blood on them, what have I been thinking. I gotta go back and put the blood there. Does that make any sense to you at all? I mean there's no logic to this. This is this defies common sense. This is you have you have to buy this. You have to buy that story or else the defendant is guilty. That's that's it. And who could think like this. I mean this is not only tortured logic, this is out the window, this is over the line. Talk about doesn't pass the laugh test, only it's not really very funny. It's not funny what they're saying. But it's crazy.
Now so then they give you this stuff about the surface three. They have these little microscopic red balls that they talk about. Now the truth of the matter was that the testimony from Mr. MacDonnell and from Dr. Lee I believe, but certainly Mr. MacDonnell was that he could not say that those little microscopic balls on surface three came only from surface two. In other words and if it didn't, if you can't say that, then you don't have any evidence of planting. What you have there is a couple of the other things that were indicated, for example, you saw the photograph of the socks. They were inside out. The toe was lying on the ankle and we know that his blood was on the toe. With his blood lying on the toe, pressing on the inside of the ankle, that would be on surface three, you have the possibility of transfer right there. Another possibility that was pointed out was the fenal test where you can see the photographs. There's a there's a drop there of moisture in the photograph. You touch it too the sock, you swab around for blood and then you can get a wet transfer. But if somebody goes to plant blood first of all why do you plant blood on black socks that no one can see. But that's another story. That makes no sense either, but assume you do, assume you do. Aren't you gonna plant enough so it will be found and it will be typable and they'll find it and they'll see it, in which case if you do that, you don't wind up with little microscopic balls that you can't hardly see except under high magnification. You're gonna wind up with something there. You're gonna it's gonna go bleeding through into the other side. You it makes no sense. This makes no sense.
And who did that? When did they do it? How did they do it? None of these things are explained to you. It's just thrown out there. It's like I was telling you a lawyer says so doesn't make it so. Look for the evidence. Look for the proof. Look how. Look when. Look who. Do you have any of that? You have none of it. Not only don't you have that, but you have no logic to go with it. There's no logic in what they're saying, it makes no sense and it didn't happen. Not only do you know that it makes no sense, but now we've proven it didn't happen. We did the EDTA test. You look at those graphs. They tell you it didn't happen. Not only have we proven our case, we've disproven theirs. How much more could you ask.
The rear gate that's another one they want you to believe that blood was planted on. Now I've already talked to you about this a little bit. They were making a lot of arguments about the blood was not degraded on the rear gate and therefore you should believe that because there were high amounts of DNA in it that it had to be planted. Well, we've proven that wasn't true with the EDTA test. So, you know that's not so. You have other assurances, though, as I told you, there was degradation. The EAP degraded to a B and the PGM degraded as well. So there is degradation on that rear gate. It was exposed. But then I think it was really the most telling of all, Officer Riske, the first officer on the scene. It's been a long time since you've seen his face. He was very early on in this case. But he was very honest, he was very candid, even defense counsel agrees and this is what he had to say about that, page 14068.
Question Now, when you out towards out through the rear gate, were you able to see any other blood drops?
Answer I met with my partner at the rear gate and, yes I did.
Question How much and how did you happen to see those?
Answer My partner directed my attention to them.
Question And how did he do that?
Answer He just told me he saw blood on the gate and on the driveway and he showed me where they were with his flashlight.
Question Shown his light on them?
Answer That's correct.
Question Was he staying away from them?
Answer Yes.
Officer Rieske is describing the actions of his partner, Officer Tarasas [sp] who saw blood on the rear gate, they were the first officers there in the early morning hours just shortly after midnight, June 13th, 1994
MARCIA CLARK, Prosecutor: [in progress] Officer Riske is describing the actions of his partner Officer Terrathas [sp] who saw blood on the rear gate. They were the first officers there in the early morning hours excuse me, just shortly after midnight, June 13th, 1994.
Defense counsel asked why didn't why didn't the dog run out through the rear gate? If it was Mr. Simpson there, he would have run out behind him through the rear gate. You recall that argument yesterday. You know why. Well, you already know the answer. The front gate was opened but the rear gate was closed. Because he closed the rear gate. And that's another reason why you know that his blood is on that gate. And that's why the dog didn't run out the back. The dog ran out the front because the front gate was opened and the rear gate was closed. And Officer Riske told you that too. When they got there, the rear gate was closed and he was careful not to touch it. You could have that testimony read back to you. But that's why the dog didn't run out the back.
But maybe that is also why the dog, after running out the front, ran around to the back. You recall the testimony of the bloody paw prints that went south on Bundy and then went west on Dorothy towards the rear alley going out to look for his owner?
BARRY SCHECK, Simpson Attorney: Objection. [inaudible]
Judge LANCE ITO, Los Angeles: Overruled, Counsel.
MARCIA CLARK: There was testimony from a number of witnesses who were present the first of them Officer Riske who traced those bloody paw prints down Bundy and west on Dorothy. You can have it read back.
The Bronco now, I think that first of all defense counsel wants you to believe that Mark Fuhrman went into that Bronco and that's why he was able to describe blood inside the Bronco that couldn't be seen on the outside of the Bronco and Let me just make a logical point to you. If he was in that Bronco doing all these nefarious things, why would he then go out and describe what he saw when he was in the Bronco doing these nefarious things doing these bad things? He wouldn't admit to knowing anything about the inside of that Bronco. He wouldn't admit to making detailed observations of blood that's inside the Bronco. That's just a logical point, but there's more. The defense would have you believe that the extra four allele on the PCR testing they found on the steering wheel comes from Mark Fuhrman? Now, defense counsel has made many, many requests, many of them. One of them was to get the officer's hair to eliminate from the Rockingham glove.
BARRY SCHECK: Objection.
Judge LANCE ITO: Overruled.
MARCIA CLARK: And we did it.
BARRY SCHECK: Improper.
Judge LANCE ITO: Overruled. For the record, counsel. Proceed.
BARRY SCHECK: It was a request.
MARCIA CLARK: No, it wasn't.
Judge LANCE ITO: Proceed.
MARCIA CLARK: We got hair standards from all of the officers. No problem, counsel. Let's go look. And we did. And Mark Fuhrman and all the other officers were eliminated from that Caucasian hair on the Rockingham glove. A similar request could have been made for the blood of Mark Fuhrman. And it was not. And had it been asked, it would have been done. And that their requests have been honored. Had they made one, they could have been done.
BARRY SCHECK: [inaudible objection]
Judge LANCE ITO: Counsel, move on.
MARCIA CLARK: Now, with respect to the cell phone cut. I want to make a point on that where is that board? [pause in rebuttal argument] One seventy-two, Your Honor.
Judge LANCE ITO: Thank you.
MARCIA CLARK: Let me direct your attention to this one. You see the blood inside the well of the door handle on the driver's side inside? OK, that's an important blood spot. If you think about it, that blood is only going to get in that spot if you are sitting in the car with the door closed and you reach to open it and in putting your hand on that handle a bloody knuckle touches the well. That's how that blood gets there. The door closed. You're sitting in the car. That's very important because what that tells you what that tells you is that it means that the defendant was driving with a cut hand. His hand was already cut when he came back to Rockingham. When he opened that door, that knuckle was cut. It was cut at Bundy. That stain is very important. That stain tells you it was no razor-sharp cell phone and it didn't happen when he was getting ready to leave for the airport. It happened earlier that night when he was out. That's what that tells you. That, of course, and the blood in the bathroom. That shows that he was bleeding earlier before he got down to see the limo driver.
Now, the allegation made about the blood on the console. If I understood the argument that's been made here, it is that the defendant was in the Bronco and he was bleeding. And he dripped some of his blood on the console. I've got a problem with that already, OK? Because he was cut on the left hand. On the left hand and that's why you have his blood on the left-hand side of the car and you have the victim's blood on the console where he dropped the glove. That's why you don't have Let me see if I can describe this better. On the left-hand side you have the drippings that came back to the defendant. On the right-hand side you have the smears, OK? And the smears came from the Rockingham glove. The Rockingham glove has the blood of the defendant and Ron Goldman and Nicole Brown, has all three of them on there, OK? And in a moist condition, it will swipe a little bit like you see here. Now, what they're trying to tell you is that the defendant dripped blood on that side, somehow, with his cut left hand. He dripped over on the console. And that later Mark Fuhrman came in and just happened to take the blood the bloody Rockingham Bundy glove that did not have the blood of the defendant on it, but swipe exactly where the defendant had dripped on the console. And somehow that's how his blood got mixed up with Ron Goldman's glove on the console. If you wanted to sell this story in Hollywood, they wouldn't buy it because it's so incredible. It's not even funny; it's ludicrous, OK? This is this is ludicrous. But above and beyond that, they're also saying this. They are saying that Dennis Fung collected all of the blood on the console and it was all gone, then someone came back later and planted blood exactly in the same places it had been before to look exactly the same way it had looked before. This is ridiculous. Talk about makes no sense. Talk about just unbelievable. You'll have the pictures. You need to look at the pictures. Look at the pictures yourself. Have them back in the jury room. Compare You know, look at all of the pictures you can get your hands on. Compare the blood patterns on this console, the photos that were taken. This one's later. This is September first down here and this one up here was on June 14th. Compare them. You ask yourself. You ask yourself. How could this possibly happen? How could it happen that they can duplicate exactly the way the blood looks on June the 14th on September first? It can't happen. But you need to go back and look at it. You need to get your hands on this stuff yourselves and talk about this. Because this is so far beyond the pale that only your seeing yourself and holding this in your hands is believing that they're actually, actually saying this to you.
Now the problem with it really is though is that you have to buy the planting theory. You have to buy this far out idea this stuff, because otherwise, if you don't, he's guilty. Guilty. He's got Ron Goldman's blood in his car. What's it doing there? That's it. That's it. He's guilty. So, they have to find an excuse and that's why you have these these this flailing about. You have contamination. You have planting. You have contamination and planting; and/or planting. You've got everything everything to explain it all away. Everything. But the theories get wilder and wilder because the proof is so devastating. There's so much of it and there's so much to explain.
Now, here's what really happened. I mean, let's come back to reality here. The truth of the matter is that when the officers got to Rockingham and this is the state of the record. Now we're talking evidence and not fairy tales. State of the evidence is this, ladies and gentlemen. The detectives got to Rockingham. The Bronco was locked. They asked Kato for the key. He couldn't find the key. They towed it in a locked condition. And on June the 14th, they Dennis Fung had to get somebody to Slip Jim the door open so he could get in there to collect the blood. That's the evidence. It's not nearly as exciting. It's much more boring, but it's the truth. It's the truth. That's what happened. And so they never did, by the way, lock the car again 'cause they didn't have the keys. And that's why you had all that testimony about the car sitting there at Viertel's and people able to open the door. They couldn't lock it 'cause if they did, they couldn't open it again. They'd have to Slip Jim it. That's a state of the record. That's the truth. And, by the way, the blood that was collected that's shown here in the bottom photograph that has the number 26 on it on this exhibit? That blood was collected and sent directly to the Department of Justice. It didn't go through that cesspool they want to call the LAPD. It went straight up to D.O.J. And it was tested and it came back with the RFLP result of Ron Goldman and the defendant.
All right, there was also, briefly, somebody made reference to Detective Mulldorfer not seeing blood in the Bronco. Well, that impression if you had the impression that she was looking for blood in the Bronco and tried to find it but failed, then you were given the wrong impression and let me creat let me correct it, very briefly. Question, by Mr. Darden, ``Detective, are you telling us that there was no blood on the console?'' Answer ``No.'' Question ``You weren't investigating the issue of whether or not there was blood on the console? Is that correct?'' Answer ``That was not the focus of my investigation.'' Question ``The focus of your investigation was Mr. Meraz, correct?'' Answer ``Yes.'' Question you have a question ``You had learned that he had stolen items from the defendant's vehicle, correct?'' Answer ``Yes.'' Question ``And the items that you learned about were credit receipts, is that right?'' Answer ``Yes.'' Question ``Your investigation was focusing on theft of items of paper?'' Answer ``Yes.'' ``Your investigation wasn't focused on biological evidence, was it?'' Answer ``No.'' Question, yeah, question ``You had learned that he had stolen items from the defendant's vehicle, correct?'' Answer ``Yes.'' Question ``And the items that you learned about were credit receipts, is that right?'' Answer ``Yes.'' Question ``Your investigation was focusing on theft of items of paper?'' Answer ``Yes.'' ``Your investigation wasn't focused on biological evidence, was it?'' Answer ``No.'' That wasn't her job.
Now, I want to come to a very important piece of evidence and that is the bloody shoe print on the Bronco carpet, shown probably best up here on this top photograph by the number 33. There was testimony that went to this from Mr. Bodziak. Now, how do they explain that? 'Cause that's real serious. You know, that shows that's very important piece of evidence. We have the Bruno Maglis going down the Bundy walk in blood and then we have a bloody imprint right there where you'd put your foot if you were the driver and what does that look like? That's very highly incriminating. Now, they want to explain this one away by saying that Mark Fuhrman stepped in the blood of Nicole Brown because actually this is all woven in a bunch of stuff together. That photograph where you see him pointing to the evidence at Bundy. That really wasn't taken at seven or 6:30 or something as was testified to. No, no, no, no, no that was taken before he left to go to Rockingham. And the blood on his shoe dried. He was standing there. He was marching around in her pool of blood that's what you have to believe. Then he went out to Rockingham. He stepped on the wet grass. He got it wet again and when he got into this Bronco which I guess he must have had a Slim Jim with him to break into 'cause it was locked he got in and he put his foot on that carpet right where you would put it if you were driving it. But he didn't have the keys so why would he be sitting that way, I don't know? But that's the story. That's what you're suppose to believe.
Now, there's a bunch of problems with that story that make it impossible. It doesn't fit. It doesn't make sense. And it didn't happen and here's why.
Number one, there was testimony from Mr. Bodziak concerning the characteristics of this stain. And that means 33 where the shoe where the imprint is and what he said was that there were the ``s'' squiggles that were very distinctive of the silga [sp] design of the Bruno Maglis. He said there was not enough distinctive characteristics for him to make an absolute, positive identification but you can see. I'm going to show you I'm going to show you that logic and common sense and your own powers of observation tell you that's the Bruno Magli shoe. And Mr. Bodziak told you that he excluded the shoes of all of the officers including those of Mark Fuhrman from the bloody shoe prints at Bundy.
BARRY SCHECK: Objection. Not [inaudible]
Judge LANCE ITO: Overruled.
BARRY SCHECK: [inaudible] point assumes.
Judge LANCE ITO: Take a break.
MARCIA CLARK: OK.
Judge LANCE ITO: Then I'll hear your
MARCIA CLARK: Oh, oh.
Here was the testimony of Agent Bodziak, page 32, 738. Question ``With respect to these two exhibits,'' referring to the exhibits of the officers' shoes and I'll show you those ``Were you able to include or exclude the officer's shoe prints as having created any of the prints that you saw at the Bundy location?'' Answer ``I was able to exclude those officers' footprints as having made any of the distinguishable silga design that I pointed out previously this morning. That silga design is totally different than any of the designs of these officers' shoes.'' And when we come back from the break, I'll show you.
Judge LANCE ITO: All right, ladies and gentlemen, we're going to take our mid-afternoon recess. Remember all my admonitions to you. And we'll be in recess for 15. All right, let me see counsel at the side-bar with the court reporter, please.
RIKKI KLIEMAN, Anchor: The lawyers have just gone to the side-bar. We don't know if it's about the arguments or if it's about scheduling. Maybe it's a question for Ms. Clark as to when she may finish.
In this section of her rebuttal argument, she has gotten to the heart of the evidence for her case which concerns the blood and now moving on to the shoes. She's injected some humor as she has gotten more animated. And we're going to take a break and we're going to discuss where she is at in this argument in just a moment. Stay with us.
[LTV takes a commercial break]
RIKKI KLIEMAN, Anchor: Judge Ito is on the bench.
Judge LANCE ITO, Los Angeles Superior Court: Which exhibit is it?
MARCIA CLARK, Prosecutor: We're looking. What issue is left to resolve?
Judge LANCE ITO: The issue is 42 and the issue is the state of the record regarding requests for blood samples or PCR results from the investigating officers that's the issue. I think the state of the record of the request was made and declined. That's my recollection of what happened.
MARCIA CLARK: Wait, what are we talking about. Are we talking about
Judge LANCE ITO: We're talking about two things. We're talking about 42 and Nicole Brown Simpson blood pool results.
MARCIA CLARK: Yes.
Judge LANCE ITO: And we're talking about the request for the PCR testing results of any of the investigating officers with regard to the four allele on the stairwell.
MARCIA CLARK: Can I ask that Mr. Harmon address the court on that matter, because he handled it, I didn't.
Judge LANCE ITO: Good afternoon, Mr. Harmon.
ROCKNE HARMON, Deputy District Attorney: Good afternoon, Your Honor. Starting with the request in what seemed what like a life time ago, we had a lot of requests from the defense. Some of them we acquiesced to initially because we had the material and it was readily available.
Judge LANCE ITO: Well, let's cut to the chase. What's the state of the record?
ROCKNE HARMON: The state of the record is many, many months ago they requested a broad request. All laboratory personnel and a vague request for police personnel. We eventually provided all the PCR typing results for all the police personnel that we had and then that were produced as this trial slowly progressed. And we told them that we didn't have 'em for police officers and it is my recollection that that was the end of that and that there was never a formal request made of you to resolve the impact.
Judge LANCE ITO: The problem is this is reference to items not in the record, that's my concern.
ROCKNE HARMON: Excuse me, Your Honor.
Judge LANCE ITO: This is something that is not in the record before the jury, though.
BARRY SCHECK, Simpson Attorney: Well, Your Honor, may I
Judge LANCE ITO: Hold on, I'm not finished talking to Mr. Harmon. All right. That has not been a subject of question and answers before the jury, is that correct? My recollection that it has not.
ROCKNE HARMON: That the police officers were not typed?
Judge LANCE ITO: Yes.
ROCKNE HARMON: That's correct.
Judge LANCE ITO: All right. Thank you.
BARRY SCHECK: Mr. Harmon listen carefully to his answer because his answer accords with your recollection and my recollection. It wasn't a vague request. We requested the typings
Judge LANCE ITO: Counsel, the point is, is it in the record before the jury and the answer is no.
BARRY SCHECK: Yes, no, no, no.
Judge LANCE ITO: No, no, counsel. That's the issue. If it's not in the record before the jury then it's not something that's appropriate to have argument made of. Do you agree?
BARRY SCHECK: I agree with that and
Judge LANCE ITO: All right.
BARRY SCHECK: I have a further point, if you may just hear me and that point is this, because you must instruct the jury to the contrary. As Mr. Harmon is indicating and as the court recalls, we did make such a request for the typings of the police officers and they chose not to do them. Mr. Harmon can say now they weren't available so he didn't produce them, but the record and the truth is we made the request and they did not provide it. What Ms. Clark just told the jury is, if requests
Judge LANCE ITO: Counsel, I know
BARRY SCHECK: for samples were made
Judge LANCE ITO: Counsel
BARRY SCHECK: they would have been honored. That's untrue and they should be so instructed. A request was made and it was not honored. Those are the facts. That's what the jury should be instructed. She had no right to say it in the first place and what she said wasn't true and that should be corrected.
Judge LANCE ITO: Thank you.
ROCKNE HARMON: Your Honor, can I just comment on that
Judge LANCE ITO: No, no, no. You don't need to comment on that. You know, it's obvious to me we're not going to finish this today, isn't it? So now what's going to happen is Ms. Clark's going to get a second wind over the weekend.
MARCIA CLARK: Why won't we be able to finish today?
Judge LANCE ITO: You're going to finish in 90 minutes?
MARCIA CLARK: Yes.
Judge LANCE ITO: OK.
MARCIA CLARK: Especially if we don't have 90 minutes of argument in between, I'll be done. I will be done, Your Honor.
Judge LANCE ITO: All right.
MARCIA CLARK: Now, what my I had no knowledge of what my it was understanding from Mr. Harmon that the request was made. Mr. Harmon said give me a list of the officers. They never came back to him and that was the state of the record and
Judge LANCE ITO: State of the record is this No typing results, PCR typing results were made available to the defense by the prosecution during the course of the case. That's the state of the record.
MARCIA CLARK: Then I
Judge LANCE ITO: That is not before the jury and you need to correct that.
MARCIA CLARK: OK.
BARRY SCHECK: A request was made for it
MARCIA CLARK: What
BARRY SCHECK: that's the important point. She said it was her request would have been honored, a request was made and it wasn't.
MARCIA CLARK: The problem you know what the problem is, Your Honor?
Judge LANCE ITO: Wait
MARCIA CLARK: It makes it sound as though there was refusal and that's not the truth.
Judge LANCE ITO: What I'm asking you to say, correct your argument that no results, no PCR results of any of the investigating officers were provided to the defense. Need to correct that, period. All right.
BARRY SCHECK: Your Honor, what about the request? She said request.
Judge LANCE ITO: Counsel, no.
BARRY SCHECK: Well, that's the truth. We made a request and they didn't provide them. She said request
Judge LANCE ITO: Sit down. I've heard enough. We're going to conclude this.
BARRY SCHECK: It's not fair.
Judge LANCE ITO: Deputy Smith. Counsel on both sides
RIKKI KLIEMAN: It really is amazing sometimes what can go on in this courtroom. I for one have never seen this much bickering about a rebuttal argument. Excuse me, we're going right back in.
Judge LANCE ITO: And I'm sure we'll have a chance to talk about it some other time.
RIKKI KLIEMAN: And while I say I haven't seen so much bickering, I can also understand very well Barry Scheck's need to protect his record. What do you do, Tony Alexander, you're a defense lawyer. Do you think that there's things that are being misstated. You've got to protect your record, but is the problem here that the argument just goes on too long?
ANTHONY ALEXANDER, Criminal Defense Attorney: Well, I think that's part of it. Part of the point gets obscured the argument. I think what you try to do is get the judge to give an instruction. Try to get it to come from the judge so that then it has more impact with the jury and they don't think that it's just more argument coming from the lawyers. So I think what ought to be asked what the defense ought to be asking for now is judge, you need to correct this with an instruction and write out what they think the instruction ought to be. That might be the best way for them to go at this point.
RIKKI KLIEMAN: I was with you, Michele Levine, talking about empowerment for the jury at some point and in this case this jury in many ways knows this case so well. They've been allowed to take notes, they've had all these visual aids, high technology visual aids. What happens in the jury room sometimes is the ability of a poor person to decided to take a straw vote and that may not be a good idea. I'm told we're going back in the courtroom. We'll talk more about the jury later on.
Judge LANCE ITO: members, our jury panel and Ms. Clark, you may conclude your summation.
MARCIA CLARK: Thank you, Your Honor, almost done. OK. Let me correct one thing. With respect to the on the steering wheel, the four allele, I'm informed by Mr. Harmon that we have not provided PCR results on the investigating officers. I would also remind you, ladies and gentlemen, that I think even Dr. Gerdes conceded that the four allele that was found on the steering wheel of the Bronco could have come from anyone driving the car and as you know there was testimony concerning other people driving the car. I think it was the housekeeper or something, Gigi also drives the car. So we were I was going to tell you about the border and the imprint on the carpet, OK, and I want to show you this.
First of all, let me show you Mark Fuhrman's shoe, the one that was excluded that he wore that night when he was at Bundy. It was excluded as having been a Bruno Magli by Mr. Bodziak and here's his the bottom of his shoe.
Judge LANCE ITO: What exhibit is this, counsel?
MARCIA CLARK: Um
Judge LANCE ITO: Is this from the large board?
MARCIA CLARK: It's from 396, Your Honor.
Judge LANCE ITO: Thank you.
MARCIA CLARK: OK. You can see there's I think you can see pretty pretty well. It's no squiggles on the heel, that's the important thing. Now what I'd like I'm going to ask for Mr. Goldberg to help me out here, 'cause he knows this better. He there was an overlay made of the way the it's a transparency with the way the Bruno Magli sole Silga sole looks. You can overlay that on this actual carpet stain and see how it lines up. Mr. Bodziak, I would caution you said that when somebody puts their foot on a carpet again, this is common sense, you know, you'll move it, you may twist it a little bit, so it's a little fuzzy, but you'll be able to see it.
And I'm going to direct your attention sorry about that first of all, to this line here that is the border and then the squiggles in here and I'm going to have Mr. Goldberg line up the transparencies so you can see what we're talking about [break in audio] red arrows that are on here, can you see them from you are? They're little, OK. Agent Bodziak was the one that marked these features to show what he thought was consistent with the Bruno Magli design.
HANK GOLDBERG, Deputy D.A.: Your Honor, can I ask for a count, People's 390E.
Judge LANCE ITO: Thank you.
BARRY SCHECK: I have an objection to this.
Judge LANCE ITO: Overruled.
MARCIA CLARK: Can everybody see? Can you all see?
Judge LANCE ITO: Ms. Clark?
MARCIA CLARK: OK. Thank you, Your Honor. Now there was now what's key and fundamental to your belief that any one other than the defendant could have put this bloody shoe print in the Bronco and you recall that the testimony was that the typing came back to Nicole, that was her blood. What's key to your belief that it was not his shoe that put it there, is the defense contention that he in fact was down in the crime scene pointing to the evidence at Bundy and stepped in her pool of blood before he went to Rockingham. Because if you rely on the state of the record which states that he did not step down into that area until after he went to Rockingham, he didn't have opportunity to get her blood on his shoes. So the defense contention is that he actually took that photograph before he went to Rockingham and that's how he got her blood on his shoes and that's how the blood got on the carpet of the defendant's Bronco.
However, the testimony elicited earlier in this trial is completely opposite. Completely opposite and it's the testimony of an officer whose honesty was praised by defense counsel earlier in argument, Officer Riske. And he testified concerning that photograph as follows at page 14-115 Question And by the time you came around to the front was it starting to get light? Answer No, it was Question Still dark? Answer still dark. Question What did you do out front? Answer Like I said, maintained security of the crime scene. Question At some point a photographer arrived? Question Did you have contact with the photographer at the front of the location? Answer Yes, I did. Question And was it daylight by then? Answer I had talked to him earlier, but he hadn't taken any pictures of the front while I was there. Then he came, it was just starting to get daylight and he came and he took a couple pictures. Question Now, was this the same photographer you had contacted earlier at the rear of the location, the rear alley? Answer Yes, it was. Question When he came to the front of the location and it was lighter, did you point anything out to him? Answer No, I didn't. Question Did you see him taking pictures in that front area? Answer I saw Detective Fuhrman. He was showing him the glove and he took a picture of the glove. Answer Question OK. He was pointing to it? Answer I believe he lifted up the leaves and the plants so he could see it better and he took a picture. Question And now I'm point to it, it's People's 55. You ready? Can we get the feed, please, Your Honor.
We should mark it as People's 55 and then Question Do you recognize the person in that photograph, sir? Answer Yes, I do. Question Who is that? Answer It's Detective Fuhrman and the victim. Question And what's he pointing to? Answer He's pointing to the glove. Question The glove and the cap? Answer The cap. Question The ones that you saw when you arrived shortly after midnight? Answer That's correct. Page 14-118 Question Now what time was it that you were relieved from this crime scene? Answer 7:15. Question At 7:15? Answer That's correct. And in relationship to that time, that you left the crime scene, when did Detective Fuhrman appear and point out things to the photographer. Answer I would say within 40 minutes, I'm not really sure, within an hour. Question So it was shortly before you left the crime scene completely? Correct, right.
So 40 minutes to an hour before Mr. Officer Riske left the scene and he left at 7:15, is when that photograph was taken. He was there and he saw it happen and that was after Mark Fuhrman came back from Rockingham. Mystery solved. And that shoe print belongs to the defendant.
MARCIA CLARK, Prosecutor: [in progress] you've seen, ladies and gentlemen, is a very elaborate effort to make you disbelieve a great wealth of evidence. And what you've heard is basically a conspiracy that extends from Officer Riske to Commander Bushey [sp]. Do you realize how many people would have had to have gotten involved in a conspiracy within an hour? Can you imagine how this could happen? Detective Vannatter and Detective Lange never even knew Mark Fuhrman until they met him that night at Bundy and yet the allegation by the defense is that they got together that night, meeting first time for the very first time and everybody's covering up and conspiring all of a sudden impossible.
Not only that, but there are other people involved as well; people we don't even know who they are, according to the defense,
who are willing to get involved in this. Do you realize how many people have to be involved? I mean it boggles the mind. We don't even know who they're talking about but that's the contortion you have to go through to believe in this conspiracy theory. That's the contortion you have to go through to step away from the very obvious truth that you can see when you look straight on and clear-eyed at this evidence. If you look at it straight on, you can see the truth. It's very clear and it's very obvious. Mr. Simpson committed these murders, ladies and gentlemen. We don't like it and it's hard but it's true.
Now I have one more exhibit I'd like to show you and this exhibit is entitled unrefuted evidence. And I think that this will bring home to you the power of the evidence in this case. And the reason that there are two men now helping is because it's a magnetic board and it weighs about a ton.
Judge LANCE ITO, Los Angeles Superior Court: All right, Ms. Clark.
MARCIA CLARK: Thank you, Your Honor. This is the unrefuted evidence. This is evidence which has not been contested by any contradictory evidence. That's all that's on this board, OK?
Judge LANCE ITO: Excuse me, Ms. Clark, I'm sorry. Forgive me for interrupting. Any remains on this board?
MARCIA CLARK: No, Your Honor.
Judge LANCE ITO: All right.
MARCIA CLARK: No, wait, maybe I do wait yes but we're not going to get to it just yet. Shall I tell you when or you want to just go ahead and cut?
Judge LANCE ITO: Tell Mr. Bancroft when.
MARCIA CLARK: OK. First of all, opportunity -- opportunity deals with the time. As we've already established, between 9:36 and 10:53 the defendants' whereabouts are unaccounted for no dispute about that. Nobody's contradicting that. Kato Kaelin saw the defendant wearing a dark sweatsuit at 9:36. No contradictory testimony about that. Charles Cale did not see a Bronco on Rockingham when he walked his dog between 9:30 and 9:45. No witness came forward to dispute that either.
The defendant tried to call Paula Barbieri on his cell phone from the Bronco at 10:02, 10:03. There is no contradictory testimony as to that fact.
BARRY SCHECK, Simpson Attorney: Objection--
MARCIA CLARK: Allan Park did not
Judge LANCE ITO: That's overruled.
MARCIA CLARK: Allan Park did not see the Bronco on Rockingham at 10:22 or 10:30. No witness came forward to contradict his testimony.
BARRY SCHECK: States [unintelligible]
Judge LANCE ITO: Overruled.
MARCIA CLARK: Allan Park buzzed the intercom at Rockingham at 10:40, at 10:43 and at 10:49. There was no answer. No testimony contradicts that. A white, very light colored Bronco-type vehicle observed at Bundy and Dorothy after the murders occurred. That was the testimony of Mr. Heidstra, testimony that was not contradicted.
BARRY SCHECK: [unintelligible]
Judge LANCE ITO: Over-ruled. Counsel counsel that objection has been made. It's for the record, thank you.
MARCIA CLARK: Kato Kaelin heard the three thumps on his wall at 10:51 or 10:52. That testimony is uncontradicted. Let me make one further point about that. An argument has been made to you, ladies and gentlemen, that somehow that those thumps were a signal. That is not what Kato said. That is not what he said, nor was he questioned as to whether or not the thumps he demonstrated for you were that fast or was it slower. He was indicating to you the force, why his walls shook. Now how could an earthquake sound like this? [taps pod
He said an earthquake. He said a prowler. Those were the things that he said. He did not say signal. It didn't sound like that to him. That's what he said earthquake, prowler. Those were his words, uncontradicted.
Allan Park saw the person in dark clothes, six foot, 200 pounds, walk across the driveway at 10:54, walking into the house, testimony that is uncontradicted, two minutes after the thumps heard by Kato -- uncontradicted testimony. And at 10:55 when Allan Park got out of his limo to go and buzz the defendant, the defendant finally answered. That testimony, ladies and gentlemen, is uncontradicted. What that testimony proves is not only that the defendant was not home, but it proves he was not sleeping and it proves that he lied about it to create the impression, to create an alibi for himself.
[Barry Scheck makes inaudible objection]
MARCIA CLARK: You don't need to do that unless
Judge LANCE ITO: Overruled
MARCIA CLARK: --you've been doing something you need to have an alibi for, unless you've been doing something that you need to hide.
The shoe prints at Bundy were from a size 12 Bruno Magli shoe. There is no contradiction for that testimony. The defendant wears a size 12 shoe. That testimony is uncontradicted. The bloody shoe impression on the Bronco carpet is consistent with a Bruno Magli shoe. That testimony is uncontradicted. That's the one we just showed you.
The left glove at Bundy and the right glove at Rockingham are Aris Light gloves, size extra large uncontradicted. Nicole Brown bought two pair of Aris Light gloves at Bloomingdale's in New York on December 18th, 1990.
[Barry Scheck makes inaudible objection]
MARCIA CLARK: Testimony that is uncontradicted.
Judge LANCE ITO: Over-ruled, counsel.
MARCIA CLARK: The defendant wore black and brown Aris Light gloves between December 18th, 1990 and June the 12th, 1994. Let me make one further point about that. If the gloves you saw him in in these photographs that we showed to you, ladies and gentlemen, were not the ones purchased for him by Nicole Brown, why is it we have no photographs dating before the day she purchased those two pair of gloves?
[Barry Scheck makes inaudible objection]
Judge LANCE ITO: Over-ruled. It's a fair inference from the evidence, counsel.
MARCIA CLARK: Which only shows, ladies and gentlemen, and highlights one further point for you. Where are they? If they are not the gloves you have here in court, where are they? They are here.
BARRY SCHECK: Your Honor, again, objection--
Judge LANCE ITO: Over-ruled, counsel.
MARCIA CLARK: The killer dropped blood to the left of the shoe prints at Bundy. That's testimony that is uncontradicted. The defendant had fresh cuts on his left hand during the week of June the 13th, 1994 uncontradicted.
A blood drop on the Bundy trail was typed as the same as the defendant's and this is the conventional serology I was telling you. This is the PGM typing that they did, not the DNA. This is uncontradicted. No one, no one contradicts the accuracy or the integrity of that.
BARRY SCHECK: Objection--
Judge LANCE ITO: Over-ruled, counsel.
MARCIA CLARK: Blood transfers were visible in the defendant's Bronco. Don Thompson, Officer Don Thompson, who was at Rockingham that morning, said he saw blood in the Bronco. Blood drops are on the street and the driveway at 360 Rockingham uncontradicted. Blood drops were found in the foyer and in the master bathroom at Rockingham, testimony that's uncontradicted. It's also uncontradicted that it's his blood.
Judge LANCE ITO: Do we have
MARCIA CLARK: Yes, now, Your Honor, thank you.
Judge LANCE ITO: All right.
MARCIA CLARK: Okay? Fibers consistent with the carpet from the Bronco found on Rockingham glove uncontradicted. Blue/black cotton fiber found on Ronald Goldman's shirt, the defendant's socks and the Rockingham glove uncontradicted. Fiber consistent with the carpet from the Bronco found on the dark knit cap at Bundy uncontradicted.
Hairs consistent with the defendant found on the dark knit cap at Bundy uncontradicted. Hairs consistent with the defendant found on Ron Goldman's shirt -- uncontradicted, and in this, I refer to head hairs, as well as limb hairs.
[Barry Scheck makes inaudible objection]
Judge LANCE ITO: Over-ruled.
MARCIA CLARK: Motive you know. Full circle spousal abuse, domestic violence against Nicole Brown unrefuted.
You can see, ladies and gentlemen, this is just what hasn't been contested. Now, you add to that the fact of all of the evidence that they've tried to claim was contaminated or planted. I've shown you how it wasn't. Add all of that to this. It is truly overwhelming.
If you would like to take notes on this I can leave it up for a little while. It won't go back with you to the jury room because it's only or argument. All right.
Judge LANCE ITO: Excuse me, counsel, would you approach real quick?
RIKKI KLIEMAN, Anchor: The judge has asked the lawyers to approach the sidebar. I`m here with a prosecutor and a defense lawyer and to the defense lawyer first; Tony Alexander, very powerful chart, extraordinarily well done, showing, from Marcia Clark's point of view, the mountain of evidence which is the pyramid of evidence, I guess, in the shape that it was in very difficult for the defense to deal with since they can't speak, correct?
ANTHONY ALEXANDER, Criminal Defense Attorney: Yes and it's a very smart strategy on the part of the prosecution to use this at this point in their argument, to save it at a time when the defense can't come back and point out those things they think are inaccurate. All the defense can do is object, as we've heard over and over from Barry Scheck. Now the prosecutor giving the jury an opportunity to take notes on it is almost a subtle form of persuasion here it is, take notes on it, take it back into the jury room and refer to it. So it's effective.
RIKKI KLIEMAN: You mean in the sense of your notes will go back to the jury room with you even if the chart does not?
ANTHONY ALEXANDER: Yes.
RIKKI KLIEMAN: Unrefuted evidence, prosecutor Levine excuse me, one moment. We're going back in.
MARCIA CLARK: I'd like to conclude my remarks to you today, ladies and gentlemen. I wanted to remind you, because we've come full circle, I've been with you such a long time. It's been so long since we've actually had a chance to both talk and I look forward to the time that we can again.
I wanted to remind you back of the time of jury selection
when we first asked questions of you as a group in order to select 12 of you to sit as jurors and that was on, I think, November 2nd, 1994. You were all together here and we were actually able to both talk and exchange. I think it was even before the alternate jurors were selected, and we asked some of you as individuals what you would expect of us as public prosecutors if we were assigned to prosecute a case where, heaven forbid, a loved one of yours had been murdered a son, a sister, a father, a brother. Imagine that it's you sitting in the audience where the victims' families sit today. What would you expect of us? What would you want?
Your answers were that you expected us to be fair, to be vigorous in our prosecution of the case, to be ethical. We've done everything in our power to be all of those things, ladies and gentlemen everything. And if you recall we, as representatives of the community, expected of you and we talked about what we wanted what we would ask of you. And if you remember, we expected you to use your common sense, to be open-minded, to be reasonable and to be fair, and to have the moral courage to be just.
And if you will think back to that time of jury selection when all of you were first together, you will remember that we talked about the United States Supreme Court building in Washington, D.C. it's been so long I wonder if you remember that, the highest court in the land and we asked if you knew what inscribed on the facade of the Supreme Court building up above the steps, up above the pillars. If you think back, we told you what was written above those marble pillars ``Equal justice under the law.'' We talked about what that meant, equal justice under the law. You may recall that means the law is to be applied equally to all persons in this country, regardless of whether one is rich or poor, or race or creed or color, famous or otherwise. Not even the president of the United States is above the law. You all agreed with that.
We asked you if you had the courage to be just. To a person, each of you each of you said, ``Yes,'' some individually, some responded as a group. And we asked you, may recall, what equal justice under the law meant to you and you replied, ``That is the way it should definitely be.'' And that's right. That is the way it should definitely be. But you see, equal justice under the law is an ideal, it's an abstract principle, and it takes you to make this principle a reality. Only you can make this ideal real.
I think that with all you've already gone through, you've shown yourselves to be people of remarkable integrity, strength, courage and patience -- people who will face the hard questions, and this is one of them. I think it's been hard for all of us to be here and to listen to all of the evidence in this case, evidence that proves Mr. Simpson is guilty, because none of us wanted to believe it. We all wanted to believe that our image of him was right and we all know that we never knew him exactly, but we kind of felt like we did. And it's really kind of hard to believe that the man we saw in the movies and the commercials could do this, but he did.
And the fact that he did doesn't mean he wasn't a great football player. It doesn't mean he never did a good thing in his life. Nothing takes that away. That's still here. It'll always be here. But so will the fact that he committed these murders. And even though it's a hard thing, still it cannot mean it cannot mean that you let a guilty person go free, that someone who commits murder is not held accountable for it.
He had strengths and he had weaknesses, and it's his weakness that brought us here today, and it's his weakness, that's why we're here and Ron and Nicole are now. And defense would say ``No motive. No motive.'' It's one of the oldest motives ever known, ladies and gentlemen -- anger, fear of abandonment, jealously, loss of control of Nicole and of himself.
Usually, I feel like I'm the only one left to speak for the victims, but in this case, Ron and Nicole, they're speaking to you. They're speaking to you and they're telling you .who murdered them. Nicole started before she even died. Remember back in 1989, she cried to Detective Edwards, ``He's going to kill me. He's going to kill me.'' The children were there. 1990 she made a safe deposit box, put photographs of her beaten face and her haunted look in a safe deposit box along with a will. She was only 30 years old. How many 30-year-olds you know do that -- a will a safe deposit box? It's like writing, ``In the event of my death.'' She knew -- ``He's going to kill me.''
Nineteen ninety-three, the 911 tape. Children were there. He was screaming, she was crying and she was frightened. I think the thing that perhaps was so chilling about her voice is that sound of resignation. There was a resignation to it, inevitability. She knew she was going to die.
And Ron, he speaks to you. In struggling to valiantly, he forced his murderer to leave the evidence behind that you might not ordinarily have found. And they both are telling you who did it with their hair, their clothes, their bodies, their blood. They tell you, ``He did it. He did it -- Mr. Simpson, Orenthal Simpson. He did it.'' They told you in the only way they can. Will you hear them or will you ignore their plea for justice. Or, as Nicole said to Detective Edwards, ``You never do anything about him.'' Will you?
I want to play something for you, ladies and gentlemen, that puts it all together. Let me explain what this is. This is a compilation of the 1989 tape 911 call, the 1993 911 call, photographs from 1989 beating and the photographs from her safe deposit box and the photographs from Rockingham and Bundy.
[Johnnie Cochran makes inaudible objection]
Judge LANCE ITO: Over-ruled.
[excerpt of 9-1-1 call made by Nicole Brown Simpson October 25, 1993]
911 OPERATOR: 911 emergency [unintelligible]
NICOLE SIMPSON: Can you get someone over here now, to 365 Gretna Green. He's back. Please.
911 OPERATOR: OK. What does he look like?
NICOLE SIMPSON: He's O.J. Simpson. I think you know his record. Can you just send somebody over here.
911 OPERATOR: OK, what is he doing there?
NICOLE SIMPSON: He just drove up here [unintelligible]
911 OPERATOR: Wait a minute. What kind of car is he in?
NICOLE SIMPSON: He's in a white Bronco. First of all, he broke the back door down to get in.
911 OPERATOR: Wait a minute. What's your name?
NICOLE SIMPSON: Nicole Simpson.
911 OPERATOR: OK. He's the sportscaster or whatever?
NICOLE SIMPSON: Yeah.
911 OPERATOR: OK, wait a minute. We're sending the police. What is he doing? Is he threatening you?
NICOLE SIMPSON: He's [unintelligible] going nuts.
911 OPERATOR: Has he threatened you in any way, or is he just harassing you?
NICOLE SIMPSON: You're going to hear him in a minute. He's about to [unintelligible].
[sound of O.J. Simpson yelling in the background]
MARCIA CLARK, Prosecutor: I don't have to say anything else. Ladies and gentlemen, on behalf of the People of the State of California, because we have proven beyond a reasonable doubt far beyond a reasonable doubt that the defendant committed these murders, we ask you to find the defendant guilty of murder in the first degree of Ronald Goldman and Nicole Brown. Thank you very much.
Judge LANCE ITO, Los Angeles Superior Court: All right. Thank you counsel. Let me see counsel at the sidebar with the court reporter, please.
RIKKI KLIEMAN, Anchor: A very powerful ending to say the least for Marcia Clark. Her chart, which was based in logic, as she would say, based in reason, based in the evidence, followed by this highly emotional tape collage, photographic collage and some words about the voices rising from the grave; not only Nicole Brown's voice, which you could hear, but also the voice of Ronald Goldman as she described it, because he fought so valiantly and therefore caused his murderer's evidence to stay behind.
From time to time today, we had commented, perhaps earlier in the morning session, that she might have been minutia, or she was going from point to point, or she was defensive. But one can only applaud her level of advocacy for the end. Michele Levine, you're a veteran prosecutor, very moving, yes?
MICHELE LEVINE, Prosecuting Attorney: I thought she was brilliant. What it does is the feeling that it generates is so powerful, it's visceral, you felt yourself hearing the voices and what it does is it says the voices are the evidence. The evidence is the voices; it makes it one and one. Will you hear it? Will you have the courage to hear the voices, to look at the evidence? And it does exactly what we talked about earlier; it empowers this jury to do just that.
RIKKI KLIEMAN: Tony Alexander, you've defended a lot of cases and I would bet, without having any knowledge, that you probably have not had any or if you had any they could be very few where you actually had a victim's voice that was heard.
ANTHONY ALEXANDER, Defense Attorney: That is very rare. I have not had any cases where that, in fact, has been available to the prosecution. So, this is something very powerful and very moving for the prosecution to have this in their final argument. Also, using the pyramid, which is the symbolism of the mountain of evidence, once again, that gives them another symbolic image for the jury to relate to when they go back to deliberate.
RIKKI KLIEMAN: Dan Abrams is standing by. Dan, just one moment. It looks like Judge Ito is going back on the bench and we will get to you.
Judge LANCE ITO: All right. Ladies and gentlemen, thank you for your patience. I have just a few final instructions that I need to give to you before you start your deliberations on this matter.
Ladies and gentlemen, I have not intended, by anything that I have said or done or by any questions that I may have asked or by any of the rulings that I have made in your presence, to intimate or suggest what you should find to be the facts or that I believe or disbelieve any of the witnesses. If anything that I have done during the course of this trial, or said, has seemed to so indicate to you, you will disregard it and form your own conclusion.
The instructions which I have given to you will be made available in written form for your deliberations. They must not be defaced or written upon in any way. You will find that the instructions may be typed, printed or hand-written. Portion may be added or deleted. You must disregard any deleted part of an instruction and not speculate as to what it was or as to the reason for its deletion. You are not to be concerned with the reasons for any modifications. Every part of the text of the instruction, whether it is typed, printed or hand-written, is of equal importance. You are to be governed only by the instruction in its final wording.
The People and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and the instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because of the majority of the jurors or any of them favor such a decision.
Do not decide any issue in this case by chance, such as the drawing of lots or by any other chance determination. The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if it is shown to be wrong. Remember, that you are not partisans or advocates in this matter. You are the impartial judges of the facts.
In your deliberations, do not discuss or consider the subject of penalty or punishment. That subject must not, in any way, affect your verdict. Do not disclose to anyone outside the jury, not even to me or to any member of my staff, either orally or in writing, how you may be divided numerically in your balloting as to any issue unless I specifically direct otherwise.
You have been given notebooks and pencils. You are to leave them in your seat, in the jury room when you leave each day and at each recess. You will be able to take them into the jury room for your deliberations. You are reminded that notes are only an aid to memory and should not take precedence over independent recollection. A juror who does not take notes should rely upon his or her independent recollection of the evidence and not be influenced by the fact that other jurors do take notes. Notes are for the notetakers own personal use in refreshing his or her recollection of the evidence. Finally, should any discrepancy exist between a jurors recollection of the evidence and his or her notes, he or she may request that the court reporter read back the relevant proceedings and the trial transcript must prevail over any notes.
In this case there are three possible verdicts as to each count. These various possible verdicts are set forth in the forms of verdict which you will receive. Only one of the possible verdicts may be returned by you as to any particular count. If you all have agreed upon one verdict as to a particular count, the corresponding form excuse me the corresponding form is the only verdict form to be signed as to that count. The other forms are to be left unsigned.
During the periods of recess you must not discuss with anyone any subject connected with this trial and you must not deliberate further upon the case until all 12 of you are together and reassembled in the jury room. Once the clerk or the bailiff has been notified that the jury has reassembled, you may continue your deliberations.
During the course of their arguments counsels from both sides argued that ``the world is watching.'' You are reminded that you must not influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the prosecution and the defendant have a right to expect that you will conscientiously consider and weigh all the evidence, apply the law as I have instructed you and reach a just verdict, regardless of the consequences.
You shall now retire and select one of your number to act as foreperson. He or she will preside over your deliberations. In order to reach verdicts, all 12 jurors must agree as to the decision and as to any finding you have been instructed to include in your verdict. As soon as all of you have agreed upon a verdict, so that when polled each may state truthfully that the verdicts express his or her vote, have them dated and signed by your foreperson and then return with them to this courtroom. You are to return to the clerk any unsigned verdict forms.
Mrs. Robertson, are you prepared to swear the bailiff?
Mrs. ROBERTSON, Court Clerk: Yes, Your Honor.
Judge LANCE ITO: All right. Sgt. Smith?
Mrs. ROBERTSON: Raise your right hand, please. Do you solemnly swear that you will take charge of the jury and keep them together, that you will not speak to them yourself, or allow [inaudible] to speak to them on matters connected with this case, [unintelligible] this court, and when they have agreed upon a verdict you will return them to the court, so help you God?
Sgt. GEORGE SMITH, Bailiff: I do.
Mrs. ROBERTSON: And further, do you solemnly swear that you will take charge of the alternate jurors and keep them apart from the jury while they are deliberating on the cause, and to otherwise instructed by the courts, so help you God?
Sgt. GEORGE SMITH: I do.
Judge LANCE ITO: All right. Ladies and gentlemen, I'm going to ask that you step into the jury room to proceed with your election of a foreperson. As soon as you have done that would you notify the bailiffs by pressing on our buzzer three times here that you've reached a determination as to the foreperson and then I'll bring you out for the closing admonitions and then we'll conclude this session for the day. In fact, I think what I will do is give them the closing admonition at this time.
Ladies and gentlemen, as I've indicated to you you are not to discuss the case while you are away from the jury room. Your jury deliberations may take place while all 12 of you are assembled in the jury room. In other words, when you go back to the hotel, when we conclude for the day and during the course of any recesses you may not discuss amongst yourselves the facts and circumstances of the case. You may not conduct any deliberations while you are at the hotel or anywhere in between. All right?
And I'll ask the 12 jurors to step back into the jury room at this time and we'll have the bailiffs take charge of the two alternates. All right. I need to see counsel. Excuse me.
RIKKI KLIEMAN: The jury has received their final instructions, and in their final instructions they're told, as Judge Ito begins, about anything that he had said, that they are really not to draw any inference from. Then he goes through the instructions about telling the how the jurors should deliberate and he cautions them about their attitude and conduct and really does not want them We're going back into court, and we'll continue with this in a moment.
Judge LANCE ITO: I wanted to ask counsel about. My research attorneys advise me that there is case law that alternate jurors are to be kept separate from sequestered jurors during the part of their deliberations, which would mean, which includes at the hotel, according to the case law that [inaudible, due to somebody coughing loudly in the courtroom]. Now, they've been admonished not to conduct any diblerations deliberations while they are away from the jury room here in the courthouse and I'll be issuing shortly a schedule of jury deliberations. What are your thoughts as far as keeping the two alternates separate?
JOHNNIE COCHRAN, Simpson Attorney: Your Honor, with regard to that, I think you've admonished them. I've- The defense has absolutely no objection to the alternates being able to be with the other jurors during the time they are at the hotels. They're not going to deliberate. They've been together all this time and I think that's appropriate. We have no objection to that, Your Honor, if the rules so stipulate.
MARCIA CLARK: [unintelligible] You're going to have two of them separate from everybody else and all their friends. It's hard enough where they're living. I can't object to them being together after all they've been through.
Judge LANCE ITO: All right.
JOHNNIE COCHRAN: This is required in the stipulation.
Judge LANCE ITO: All right. That seems the humane thing to do.
MARCIA CLARK: Yeah.
Judge LANCE ITO: All right. It will be bad enough keeping them separate in another room during this time in any event.
All right, counsel, I'm going to direct counsel to be available within one hour's phone call, within one hour of receiving a call from Mrs. Robertson, the clerk, to be available with regards to questions and jury readback and I understand that both sides wish to be present during any readback and the defendant wishes to be present, is that correct?
JOHNNIE COCHRAN: Yes, Your Honor. That is. Mr. Carl Douglas will be our designee for all readbacks. Mr. Simpson would like to be present for all such readbacks, if the court pleases. There is only one other request that I have, Your Honor, with regard to verdict, when you get to that point. Should I do that now?
Judge LANCE ITO: All right. Ms. Clark, any problem with designating one individual on your team to be the person to respond within one hour of Mrs. Robertson's call?
MARCIA CLARK: Ah, yes. I mean, no. No. Is it all right with the court if we can alternate. I don't want to have any one person always be up, but
Judge LANCE ITO: Just as long as somebody as long as I have somebody here in one hour. All right. Mr. Cochran, you had a question regarding the verdicts.
JOHNNIE COCHRAN: Yes, the court- As the court knows, this is the part of the case where one does no know how long it will take, and this has been a very long trial and because counsel have been tied up in this matter for some time
[courtroom buzzer sounds two times]
Maybe they have a verdict already and we can go home. [Mr. Cochran laughs, courtroom laughter] Maybe that's maybe [laughs]
[courtroom buzzer sounds a third time]
Maybe that's it.
[uproarious laughter in the court]
And then the question will be will be moot.
Judge LANCE ITO: It's a good sign that they can agree that quickly on a foreperson, but since they Could we have quiet, please?
JOHNNIE COCHRAN: The point I was going to
Judge LANCE ITO. Yeah.
JOHNNIE COCHRAN: indicate to the court was whether or not and it may not be necessary whether or not we can have the court has indicated that they'll be deliberating, I believe, on some weekends, and that could we have a 24-hour window by from the time that the court gets the verdict to the time that all counsel will want to be present, if it's at all possible?
Judge LANCE ITO: My concern, counsel, is that we have a sequestered jury and to keep them any longer than is necessary after they deliver a verdict would be very difficult.
JOHNNIE COCHRAN: I understand that.
Judge LANCE ITO: I'm going to ask counsel to be available within four hours of being notified.
JOHNNIE COCHRAN: Will the court because some of us are might be out of town would the court consider making that six hours, possibly?
Judge LANCE ITO: Let's say four hours and let's see where you are when it happens. Let's not create any windows that are too wide, keeping in mind that once this jury reaches a verdict, I suspect they'll want to go home.
JOHNNIE COCHRAN: I would think so. But we'll see. All right.
Judge LANCE ITO: All right. That will give all parties the opportune time enough time to get their the interested parties together and to assemble here at the courthouse.
All right, Ms. Clark, Mr. Cochran, is there anything else we need to take up?
JOHNNIE COCHRAN: One question for the point of information, if the verdict is at four, five o'clock in an afternoon, I would presume that the court would then go over, more than likely, to the next day or on Saturday?
Judge LANCE ITO: I'll issue a deliberation schedule and an anticipated schedule of returning verdicts while this jury deliberates. I am contemplating as you know, the jury asked for permission to deliberate on Saturdays. As they're willing, they figured they told me in their questionnaires that since they're sequestered they might as well work on Saturday. If a verdict is returned on a Saturday it will probably be held until Monday, simply because of the logistical problems of opening the courthouse over the weekend to take a verdict.
JOHNNIE COCHRAN: All right.
Judge LANCE ITO: All right. So, you should anticipate that. Anything else? All right, counsel, thank you very much.
MARCIA CLARK: Thank you, Your Honor.
JOHNNIE COCHRAN: Thank you, Your Honor.
Judge LANCE ITO: We'll be in recess.
MARCIA CLARK: [inaudible] sidebar without the court reporter.
Judge LANCE ITO: Correct. I'll see counsel in chamber without the
RIKKI KLIEMAN: It really is finally over. It is hard to believe with a battle that has been fought this hard on both sides. Both sides ending in their arguments in the highest tradition of the bar in terms of oratory; four different lawyers, four different styles, two sides pleading for their cause. Dan Abrams has been standing by. Dan, let me ask you first. We just heard this jury buzzer, Johnnie Cochran took a moment of levity about perhaps they had a verdict that quickly, but the reality of this situation is that the buzzer is a form of communication for the jurors, isn't it?
DAN ABRAMS: That's right. Judge Ito instructed the jury that when they had a foreperson they should buzz three times and let Judge Ito know. We heard two buzzes, which usually means a verdict and then there was a delay and then the third buzz came in indicating that they apparently have selected a foreperson. We'll just have to see who that foreperson is.
RIKKI KLIEMAN: Dan you were also able to see the collage, if you will, of the photographs that were shown to the jury and people in the courtroom of Nicole Brown Simpson that were going on while we listened to the [transmission breaks here temporarily] put together of the 911 calls. I can only imagine what they look like, but let me ask you what your impression was.
DAN ABRAMS: Well, the first four pictures or so were all of Nicole Brown Simpson after one of these incidents that had been found in her safety deposit box. They showed that picture that we've seen of the mud all over her leg and then two or three pictures of her face close up with scratches and bruises on her face. And from there, the pictures went one of the crime scene and then two pictures of the bodies at the crime scene, one of Ron Goldman's body, the most gruesome picture we've seen of the crime scene, and then the most gruesome picture of Nicole Brown Simpson from that crime scene, again, trying to bring the prosecution's theme back that this was a cycle of violence that began with domestic violence and that eventually ended up in murder. And as Marcia Clark stated when she was arguing to have that tape and collage of pictures admitted, she said ``This is our entire case this is our theory, that the domestic violence was just the beginning, but it was also the end.''
RIKKI KLIEMAN: OK, Dan, thank you as always for that report. And, oh, let me ask you one more thing. tell me something about two more things, actually. Something about the bailiff.
DAN ABRAMS: We saw Sergeant George Smith being sworn in as the bailiff for these jurors. Sergeant Smith has been essentially the supervising sergeant on the ninth floor. The ninth floor is the floor where the O.J. Simpson trial has been taking place inside this courtroom. He is the person to whom all of the sheriffs on that floor have been reporting to. So you know that you have a fairly senior member of the sheriff's department serving as the bailiff in this case.
RIKKI KLIEMAN: And, Dan, my last question for the moment concerns the two alternates. The alternates are, as Judge Ito mentioned, supposed to be kept separate from the other jurors by law, but both sides now have stipulated that the alternates can at least continue to fraternize with their fellow jurors during the times they are not deliberating. Now, are the alternates going to be kept until the time of verdict?
DAN ABRAMS: Oh, absolutely. There's always the concern that during the deliberation process they will lose a juror. If that were to happen, what Judge Ito would do was he would select one of the alternates, place that person on the jury and then instruct the entire new jury to begin its deliberations all over again. And the reason is because you have a new jury. And so if that happens, they'd be told to start all over again, although we have found that in the past it often goes a bit quicker because the deliberations have begun, they've ironed out some of the kinks in the process.
But I can tell you that the two alternates, who are probably going to be sitting together while the rest of the jury deliberates, don't appear, at least to me, based on what I've observed inside that courtroom, to be two friends, people who talk. I've never seen these two jurors talk to one another, even though they sit right in front of one another inside that jury box. One of them is an elderly African-American man, I believe he's 73 years old, and he sits all the way on the front row on the end, and then a young white woman, who sits behind him. And the two of them will likely spend a lot of time together in the next few weeks.
RIKKI KLIEMAN: Well, Dan, now I will say thank you for that report. And I'm here with Court TV's commentators this afternoon. And jurors, it is said in the world of communications studies, are people who are in a secondary group that is, they were strangers. They didn't know each other, they come from different walks of life. And over time, sequestered or not, they become a primary group. And have you found, Michele Levine, you've been able to talk to jurors after some of your cases, that jurors actually form allegiances, friendships, different groups, where by the time they do go to deliberation in a long case that many of the lines are already drawn in a case?
MICHELE LEVINE: Well, most definitely. And I think that, you know, hearing the buzzer ring two and then the third time, letting everyone know that a foreperson has been selected so quickly, it seems to me that the time that has been spent amongst the jurors themselves has given them a chance to forge friendships, alliances, if you will, but just simply getting to know one another on a day to day basis, and how people talk, who they respect and who they would want to be a foreperson. So, obviously, that was that was a decision that they were able to reach quite quickly.
RIKKI KLIEMAN: It was interesting, Tony Alexander, you've tried so many, many cases, that this decision was made so fast, and we hope it was not made, as Michele Levine had said earlier, not a decision made in haste but a decision that had come from some thoughtful consideration before this time.
ANTHONY ALEXANDER: Yes, although many time you get the situation where the decision is made by someone who just volunteers for the job because nobody else wants it. So that could be also what's going on at this point. However, you hope that it has been some sort of democratic process where everybody who is interested in it has had a chance to at least show their interest and then they've come to a consensus.
RIKKI KLIEMAN: We're going to continue to talk, but I wanted to just say something to the viewers that since we do have this time available to us before Prime Time Justice starts at 8:00 p.m. Eastern Time that I'm going to keep Tony Alexander and Michele Levine with me, so you'll have a prosecutor and a defense lawyer. And we're going to do one of the things that you know I like best, and that's that we're going to get to talk with you. And so the phone number, as you know, and from my memory from New York is area code 212, 557-1301. And we'll be happy to take your calls, talk to you about anything you like about the Simpson case, whether it's things that happened today or things that have been on your mind. And while you're busy dialing in, I'm going to continue our conversation here.
The reality of deliberations is that no one knows how to deliberate. There are no rules out there to tell people should they look through all the exhibits, should they look through some of the exhibits, should they discuss testimony. Michele Levine, with your discussions with jurors, have they informed you, have some of them have gone about this process?
MICHELE LEVINE: I'm often surprised, and pleasantly surprised, that jurors take their task very, very seriously, and they go about looking at the evidence, sometimes in a very mechanical fashion, sometimes they divide things up in terms of tasks. But they do take the time to look at everything before they make a make a conclusion. Sometimes it's very different. Sometimes you'll have side issues develop between some of the jurors. But often is it open debate between jurors so that they are able to share their views.
I don't think typically that jurors walk in and take take a straw poll. Well, let's see where we are right now before we even discuss the case. I think in this case you will not see that or you won't hear about that afterwards. I think jurors are very anxious to be able to finally share their views of what has been told to them for months on end, and I think they're going to, sort of, have their say, maybe one at a time, literally going around the room so that they can just be able to have their say.
RIKKI KLIEMAN: Tony Alexander, one of the things on our way to the commercial break I want to ask you about from your experience, Judge Ito has told these jurors, as, of course, he must, that they can't discuss this case during those recesses, their lunch hours, their time at the hotel. But these jurors spend 24 hours a day minus sleep with one another. Think it's possible for them to go through this without discussing the case at those other times?
ANTHONY ALEXANDER: I think it is very, very hard for them to do that. I think that everyone is human, and it is possible for them to really slip and do something that they don't intend to do. I don't think anyone is making a conscious effort to deliberate outside of the judge's instructions, but I would say it's human nature that somewhere along the line someone is going to slip up and do or say something that really should be saved for the deliberation room.
RIKKI KLIEMAN: And then I suppose if you slip up you have to remember what you've said so you can bring it back to the deliberation room. What we're going to do right now is take a commercial break. As I said, when we come back, we're going to get to talk to you. Please call us area code 212, 557-1301. We're waiting to talk to you.
The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it has not yet been proofread against videotape.
