Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE 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. Uelmen, Mr. Neufeld. The People are represented by Miss Clark and Mr. Darden. Good morning, counsel.
MR. COCHRAN: Good morning, your Honor.
MR. SHAPIRO: Good morning, your Honor.
MS. CLARK: Good morning, your Honor.
MR. DARDEN: Good morning, your Honor.
THE COURT: All right. Miss Clark, you were going to--you asked leave of the Court yesterday afternoon to do some additional research and to contemplate your position in this matter. What news do you have to bring to the Court?
MS. CLARK: Thank you, your Honor. And I thank the Court for giving us additional time. As the Court is well aware, it is our duty to examine all issues in a case. It is our ethical obligation to make sure that if any issues arise that may threaten an eventual verdict, we have to examine them whether we want to or not. And this was one that the Court acknowledged was a difficult one. The serious issue of conflict was raised by the Defense desire to play these tapes and present this evidence to the jury. And in pursuit of that we did extensive research. This was the product of extensive discussion and hot debate. It was a very difficult and lengthy process conducted over a number of hours last night and again this morning. And again I appreciate the Court's indulgence in giving us additional time this morning. Our position has always been, your Honor, that we wanted a fair trial that would focus on the issues. We have objected from the start to the introduction of race because we knew it would skew the trial away from the evidence. And all our concerns have now been proven to be true. And now that all the Defense efforts to present evidence of another perpetrator and police conspiracy have fallen flat and shown to be devoid of facts or evidence, they have turned to the "N" word. And that has become the cornerstone of their case, admittedly. The Prosecution team is made up of women and minorities, among others. We are all offended by the use of the words that we saw in these transcripts and heard on these tapes. We are also offended, however, by the efforts by the Defense to manipulate a jury by injecting the emotionalism that has to occur that occurs when we hear these things into a case that should be focused on the evidence. Injecting this issue into this case, your Honor, has hurt many decent people, yourself and us, and I'm sure it will hurt the jurors when they hear it, if they do. But we have to proceed as lawyers, and as representatives of the People we have to consider that although we have not always agreed with the Court, as advocates we challenge the Court, yet we have always respected this Court and its considerable talents and ability as a very fine jurist.
We want to end this case, your Honor. We want to get a verdict from this jury. We don't want a mistrial. We want a verdict that is based on the evidence. We want a fair and just verdict. This case has taken its toll on everyone; yourself, the lawyers, the taxpayers, the citizens, the families of the victims, the family of the Defendant, and we have to be concerned with the public perception that these proceedings are conducted fairly, but we also have to be governed by our knowledge and familiarity with the considerable legal talents, abilities and wisdom of this Court. Although our review of the case law indicated that we are entitled under the law to seek the course of recusal, we have determined that it is not the only course, and although the law does not expressly provide for a partial waiver of conflict, in consideration of all of the factors, your Honor, we have decided that it would not be the appropriate course in this case. Upon weighing the apparent conflict and the Defense desire to make these tapes the cornerstone of their case, against the ability of this Court to maintain its impartiality in the face of great temptation to do otherwise, we have determined that our faith in this Court's wisdom and integrity has not been and will not be misplaced.
Accordingly, we agree to proceed as previously delineated in this Court's order that was issued yesterday, but the concern strategically, practically speaking, your Honor, is this: When the issue of conflict was first broached, it appeared to me that it could be a partial thing, that the tapes were a discrete segment that could be excised out and that we could proceed business as usual as we have been discussing and the Court is aware. It was further discussion that led to advice concerning, well, maybe you can't. Perhaps this is an all or nothing proposition. Upon further reflection Mr. Darden and I conferred and determined that it really is, in at least one sense, an all or nothing thing, practically speaking, and here is what I mean, your Honor: If another Judge rules on the admissibility of the tapes, then your Honor will have to preside with the witnesses that pertain to those tapes and determine--and implement that ruling without having heard the tapes and rule on objections concerning the testimony of those witnesses. Practically speaking, how can you do that?
THE COURT: Well, what I thought we had contemplated in our discussions yesterday was that should Judge Reid determine that my wife will not be a material witness, or is not a relevant witness to the issues before the Court, then that the Court would review the transcript, a redacted transcript and a redacted tape, so the Court would be familiar with the background and the context of the statements or any of the evidence that is on the tapes, so that is one alternative.
MS. CLARK: And it is. And I had thought about that, but the problem is the cart before the horse. You know, as the Court has pointed out before, sometimes we raise these issues prematurely, but we will not know if Captain York is going to be a material witness until we know what is admissible, obviously.
THE COURT: I agree.
MS. CLARK: And even if she--and it may be that she is not material and she is just a witness, in which case I don't think we have a conflict situation, but that we can address later. That is not the problem. What we would like to do, your Honor, is let--allow Judge Reid to continue reading and getting up to speed in case he has to make a determination as to the material witness status, but we think that your Honor should review the tapes and determine their admissibility and make the rulings, because then you will be in the best position, when the witnesses testify, to rule on the objections, to narrow the scope or widen the scope, as the case may be, because you will have ruled on the admissibility and you will be familiar with your own reasoning in determinations made as to what should come in and what should not. I can't see, practically speaking, any other effective way of doing this, because if you have another Court's determination that you have to implement, I just don't see practically how that can work. I think the only appropriate thing to do is to, you know, like I said, I think that it really is an all or nothing proposition, and we are proposing all.
THE COURT: But don't you believe that it would be necessary for Judge Reid to make the materiality and relevance determination with regards to Captain York?
MS. CLARK: Yes.
THE COURT: All right.
MS. CLARK: I do. That is why I said I don't think we have wasted time, your Honor. You should get up to speed and read the transcripts. I don't think that you should be put in the position of making that determination, can't be, but that is discrete. I can see that being discrete. You make the determination on the admissibility. You decide what comes in and what doesn't, if anything, and then we can address that issue, Judge Reid can see your order and make a full and informed decision as to whether or not Captain York is a material witness. I don't think that that decision can be made until we know. We may not even desire to call Captain York after we know what the ruling is, so we need to get that resolved first. And I think the Court can do that. I think the Court should do that.
THE COURT: All right. Thank you, counsel.
MS. CLARK: Thank you, your Honor.
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Shapiro.
MR. SHAPIRO: Yes, your Honor. First I would like to respectfully request permission for myself, Mr. Cochran and Dean Uelmen to address the Court to put on the record what took place in chambers this morning, not as advocates, but as witnesses, so that we can have an accurate record of what took place, because we think this is crucial to the trial.
THE COURT: Well, at this point, Mr. Shapiro, rather than interrupt the argument at this point, because this argument fundamentally goes to the jurisdiction of the Court to move forward, so before we launch into that issue, that is, you are raising regarding our discussion ins chambers, I would prefer to address the issue regarding this Court's further participation in the trial.
MR. SHAPIRO: Well, our position has been clear throughout. This Court took a waiver last year. The first thing your Honor did when you took the bench in this case is you addressed myself and Miss Clark and you said, "I want the record to be absolutely clear and I want Mr. Simpson to know that my wife is a captain on the police department. This could be a potential conflict. Are both sides aware of that and willing to waive it?" So everything that they have done has been in bad faith. There is no way they can recuse you from this case. There is no way they can ask you to step down. There is no conflict. There has never been a conflict. And so clearly your order was correct. We have no problem with it. You have done it three times before. We have never heard an objection. We have been to three different judges on other sensitive issues that have been resolved by other judges without anything being said by the Prosecution whatsoever.
THE COURT: All right. Let me ask you one question then, Mr. Shapiro: What Miss Clark proposes is a modification of what occurred yesterday. She is asking that Judge Reid conduct the hearing regarding the materiality and relevance issue regarding Captain York--always seems strange to refer to your spouse in the third person--and then leave for this Court the issues regarding the admissibility of the tapes themselves or portions thereof.
MR. SHAPIRO: May we just have a moment to confer?
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Defense counsel and the Defendant.)
MR. SHAPIRO: Your Honor, may we just have a moment to confer? Thank you.
(Discussion held off the record between Defense counsel.)
THE COURT: Counsel, would you be more comfortable if I left the bench?
MR. COCHRAN: Judge, it will just take a second. It is all right. We are almost there, Judge, no problem. If it is not an inconvenience to you, no problem.
(Discussion held off the record between Defense counsel.)
MR. SHAPIRO: Your Honor, we would like to, after this issue is resolved, put the issue that I asked to address the Court about on the record and I would like Dean Uelmen to give our thoughts regarding the proposal that has been presented.
THE COURT: All right.
MR. SHAPIRO: Will that be acceptable?
THE COURT: Yes.
MR. SHAPIRO: Thank you very much.
MR. UELMEN: I think it is very useful at this point to kind of step back and make sure everybody has a clear understanding of precisely the procedural posture of what is going on here and what is now being proposed. We did not perceive what happened yesterday to be any sort of judicial disqualification or even partial disqualification.
What we understood was going on was the Court referring to another Judge the determination of whether a disqualification would be--and it is not the first time that that was done in this case; it is the third time, and on every prior occasion, if there was any suggestion that what was being done required a complete disqualification of the Judge from this case, that issue should have been raised at that time. And it is our contention that you can't sit back and have this procedure go on time after time after time as issues recur and then when you see it as some sort of tactical advantage, raise the club of a total disqualification. So we believe any question of disqualification has been waived and any question of total disqualification or some estoppel against the Prosecution for not having raised the issue before, so from our perspective this whole issue of total disqualification is a red herring and it is, we believe, being used as a tactical ploy and that issue is going to be addressed by Mr. Shapiro and Mr. Cochran in the light of what happened in chambers this morning. What is now being proposed is essentially what we were proposing initially yesterday and was contained in your Honor's first draft, I believe, of the referral of the question to Judge Reid simply of whether Captain York will be a material witness in this case and that is a satisfactory resolution of the issue for us. We believe that that issue can be decided with dispatch by Judge Reid. We believe there is no reasonable possibility that Captain York will be a material witness in this trial or need even be mentioned in this trial, because what we are going to present is an offer of proof of specific portions of that transcript that are directly relevant to the credibility of Detective Fuhrman, thirty specific references in which he uses the word "Nigger" in a racially offensive context and which directly contradicts the testimony that he presented under oath in this courtroom. And we will present an additional 17 extracts where Detective Fuhrman speaks with approval or with personal experience about police misconduct, the planting of evidence, the commission of perjury, and the--the presentation of cover-ups and false testimony in court proceedings, and then finally a reference to his own role in the proceedings before this Court. So we are going to have a very limited offer of proof that can result in the redaction of a lot of other offensive material, and believe me, not just offensive to Captain York, but to every person who sits on the city council in Los Angeles, to every member of the ACLU, to every Judge of this court. And that doesn't have to be even mentioned in the course of these proceedings, and frankly, I think we are back to where we started yesterday, to simply send to Judge Reid--
THE COURT: It does appear that way, doesn't it?
MR. UELMEN: --the question of whether Captain York will be a material witness.
THE COURT: All right. So you accept--
THE COURT: All right. So you accept--
MR. UELMEN: We accept a referral to Judge Reid of the question of whether there is any reasonable possibility that Captain York will be a material witness and leave to the decision of this Court the materiality of the offer of proof that we will present with respect to particular portions of the transcript that we propose to offer in evidence. Could I have just a moment?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
MR. UELMEN: With respect to the other issue that I mentioned, that is the motivation for what has gone on, I would like to turn the microphone back to Mr. Shapiro.
THE COURT: Well, let me finish the issue of what it is we are doing first. All right. Miss Clark.
MS. CLARK: Thank you, your Honor. I'm very concerned by the spurious and unfair allegations made by counsel and now alluded to. That is why this case has gone on this long. You know, we have press conference after press conference in the court, out of the court. I think that the point here is that we had an ethical obligation to examine issues that could be serious, that could have threatened the integrity of any verdict we ever got. We could not anticipate this conflict, no one could, your Honor. No one knew about these tapes, no one, not even the Defense, until the eleventh hour. When we were apprised of the fact and learned of the contents, we immediately began to address the issue that seemed to be raised. We cannot--we don't have the luxury of burying our heads in the sand and pretending things don't exist like the defenders does. As officers of this Court, as representatives of the People, whether we like the issue, whether we like the outcome, a result of the legal issue, whether we like the answer to the question or not, we are compelled, it is our ethical duty to answer the question in the appropriate manner that will protect the integrity of any possible verdict, and that is what we have done. And we have made our very best effort to examine all of the case law and make sure that the course we adopt is the correct one, the sound legal one that will preserve the integrity of the judicial system and of any verdict that we may obtain in this case. That is all we have done. And Defense wants to somehow indicate that there is a tactical decision being made here in raising the conflict issue? I mean, that is the biggest bunch of nonsense I have ever heard. The Court eloquently stated what the problems were and I look to the Court's own remarks yesterday in its order in which the Court stated as follows: "Would a reasonable person entertain a doubt concerning this Court's ability to impartially decide the scope and availability of impeachment evidence concerning a witness who has specifically referred to the Court's spouse in a disparaging manner? Is it possible to conceive a scenario where a court similarly situated would be tempted to punish Fuhrman by broadening the scope of impeachment? Is the possible to conceive of a scenario where a court similarly situated would be attempted to narrow the scope of impeachment to prove impartiality? The reasonable answer is yes." Those were these Court's own words. The Court obviously saw the problem that was posed by the situation we are placed in with the introduction of these tapes. No one can ignore it. The Defense would like to ignore it. Mr. Cochran back in chambers was gleefully referring to these--these passages involving Captain York in the very hope that your Honor would be biased, would be inflamed and would seek to punish Detective Fuhrman for having made those comments. That was the tactical advantage they hoped to gain. Unfortunately what they did not foresee is that the very tactical advantage they hoped to capitalize on spelled bias under the law, spelled conflict under the law. Not the real obvious actual bias, but the kind that we have to be concerned with under the law, the apparent bias, the appearance of impropriety. Counsel didn't play that out. He didn't think about the import of what he was saying. We have to. We have to think about this. We have to think about what are the consequences if no one addresses this issue. Now, we have. The Defense has addressed the issue, we have addressed the issue and we are convinced from having examined all aspects of this, we have always been--first of all, let me just say one thing: We have always been convinced of the Court's ability to be fair and impartial, even in such a trying situation, even though the temptation for all of us could be tremendous not to be one way or another. We have faith in this Court's ability to do so. We know the Court will do so. But we have to be sure that the record is absolutely clear that there can be no later appeal by the Defense saying that there was a conflict that they never waived. Now it is waived. Now it is clear. We have a very clean record that cannot be assailed on appeal should we ever get a conviction in this case and that is what we have to do as officers of this Court, as representatives of the People. There is no--we are responding to counsel's desire to gain a tactical advantage in this matter, to counsel's desire, as unsophisticated as it was an effort, to get the Court to behave in a biased manner. We know the Court will not do so, but having injected such an issue into the record, we also had to be sure that no one would ever question the People's decision to have this Court make the decision in this matter. And now we know that it cannot be. With respect to the chambers conference, your Honor, I think that--
MR. COCHRAN: That is our issue.
MR. SHAPIRO: Your Honor, may we talk first on that?
MR. SHAPIRO: They always try to--
THE COURT: Hold on. Hold on. Have a seat, Mr. Shapiro. Miss Clark, I want to resolve and make a ruling on the issue that we have before us. Mr. Cochran did ask first to address that issue.
MS. CLARK: Okay. Your Honor, all I was going to say about it is--
MR. COCHRAN: Your Honor, object.
THE COURT: Yes.
MS. CLARK: All right.
THE COURT: I will let you respond.
MS. CLARK: Okay.
THE COURT: All right.
MS. CLARK: Thank you.
THE COURT: All right. As to--as to the issue regarding the referral to Judge Reid, it appears to me that both parties have agreed that this Court should issue an amended order directing Judge Reid to evaluate the tape recordings and the transcripts of these proceedings previously with regards to Detective Fuhrman and to make a determination whether or not Captain York will be a relevant or material witness in this case, and that is the issue that he is to determine. That once that has been determined, if Captain York is a relevant and material witness, then this Court has no--no other alternative but to completely recuse itself. However, if that is not the case, then the agreement between the parties is that a redacted transcript and tape recordings will be submitted to this Court for this Court to make the determination of admissibility of any impeaching materials, any of these thirty uses of racial epithets, any of these seventeen incidents that are alluded to or any comments regarding current attitudes towards testifying. That is my understanding of our position.
MR. COCHRAN: May I make one point?
MS. CLARK: That is the problem that we have is I don't think the determination can be made as to whether or not Captain York is a material witness without knowing what is admissible first. You know what I mean? It is kind of putting the cart before the horse. We need to know what your Honor is going to admit into evidence before we know whether she is a material witness. She may not be after the ruling, or she may be, but we cannot know that until the Court determines what is admissible.
THE COURT: Then wouldn't the easiest way to do this would be for me to have the redacted--
MS. CLARK: That's right.
THE COURT: --tape--
MS. CLARK: That's right.
THE COURT: --and transcript, make that resolution first?
MS. CLARK: Right.
THE COURT: And then refer the matter?
MS. CLARK: Right. Exactly, your Honor. I mean, that is what the People are proposing is that we give the Court the redacted version, let the Court make its ruling and then let Judge Reid--and Judge Reid should be getting up to speed during this time. This will give him the opportunity to do so.
And then he should have the Court's ruling as to what is deemed admissible, he can read the unredacted version and see whether in his determination she would be a material witness. But I did want to point to only one distinction if I may, your Honor, and that is that there is a distinction I think in the law with respect to conflict as to whether she is a material witness or just a witness, I think. And obviously we will brief this out, but if we determine that we would like to call her as a witness, yet she is not material, because frankly, this whole issue is not material, then I don't think the Court needs to recuse itself.
MR. COCHRAN: Judge, one other thing--
THE COURT: That is an issue that we are not close to at this point.
MR. COCHRAN: --I think Jerry wants to address.
MR. UELMEN: I have never heard calling an immaterial witness, but the proffer that will establish the materiality of the redacted portion of the tape can be presented to both this Court and to Judge Reid. And assuming--I think our position is even assuming that all of the redacted portion is deemed material, Captain York is still an immaterial witness. And I think Judge Reid can make that--that ruling, Judge, based on the proffer that we are offering of what portions of the tape we intend to offer.
MS. CLARK: But that ignores issues of 356, your Honor. You know, you can't--you can't put that horse--the cart before the horse that way. If perhaps the Defendant wants to admit some passages that we think need to be balanced or placed into context with something else, then Judge Reid is only getting half a loaf; he is getting what the Defendant wants. As much as they would like to have this a one-sided lawsuit, it is not.
THE COURT: Well, no. You would have the opportunity to present your countervailing points and authorities and I'm sure Judge Reid will entertain argument on the issues. But I think the point that you raise that this Court should determine which of these multiplicity of incidents that the Defense wishes to offer, the Court should determine that first before Judge Reid launches into that, but he should also start looking at this stuff, since it appears to be voluminous.
MS. CLARK: Right.
THE COURT: And he needs to do a lot of background on it, so I'm willing to do that. So when--Mr. Cochran, when can you make available to the Court a written proffer with regards to each one of these incidents and the factual materials, the tapes and the transcripts? And then obviously the Prosecution will have the opportunity to submit points and authorities in contravention to the admissibility or materiality of those issues, and then I will hear argument as to each individual incident or use time after I have familiarized myself with the proffers, the opposition and the actual underlying material.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: In answer to your question, your Honor, I would anticipate that we could have it ready by nine o'clock tomorrow morning, so we want to move that head, because we are at this point in the case, once we finish with this witness. One other thing I was going to suggest on this issue, your Honor, is we have two declarations from Captain York and I think that they may be helpful to Judge Reid, and these are declarations under penalty of perjury, and I don't know if you have sent those, but they should be sent. The People have never talked to your wife I'm sure.
MS. CLARK: Yes, we have.
MR. COCHRAN: We have declarations from November 21st, 1994, and--both from November 21st, and I think it will be helpful if those are sent along also.
MS. CLARK: Mr. Cochran is mistaken because I did speak with Captain York when she appeared in court.
MR. COCHRAN: If they talked to Captain York since these tapes. They are talking about materiality. You have to talk to a witness before you make that determination. Will the Court hear from Mr. Shapiro on the other issue?
THE COURT: Actually I still haven't, since I have gotten controversy as to what is going on here.
MR. COCHRAN: Okay.
THE COURT: All right. Let me just determine what will happen at this point.
MR. COCHRAN: Sure, your Honor.
THE COURT: All right. We will proceed as follows: The Defense will submit to the Court its offer of proof with argument with regards to each of these incidents, plus the redacted tape and transcripts supporting, tomorrow morning.
MS. CLARK: Right, okay.
THE COURT: After that has been filed, the Prosecution will have the opportunity to file any written opposition that it wishes to, and after the Court determines what is here, I will schedule an argument with regards to each one of these incidents.
MS. CLARK: Okay, great.
THE COURT: All right. I will instruct Judge Reid or request Judge Reid, since he is a Judge of equal stature, I will request Judge Reid to confine his activities to the issue of the relevance and materiality of Captain York's testimony, but he will have also available to him the whole constellation of the record, the tapes and the full transcript, and the benefit of any points and authorities that either side wishes to submit. And I'm certain that Judge Reid will entertain oral argument with regard to the issue, but that is something further down the road.
MS. CLARK: We may never--we may never reach that. You know, we just don't know at this time. I was only going to urge that the Court proceed to review all of the tapes and transcripts without waiting for points and authorities, because there is a lot.
THE COURT: Well, I will do my best.
MR. COCHRAN: Judge, one other point from the standpoint, as the Court is aware, we brought Miss McKinny out to California, and just a matter of scheduling and understanding the time constraints, she has a family, and it would seem to me--can the Court give me an estimate, without rushing anyone, there is going to be some down time obviously, less than we thought at the end of yesterday, but some down time, and I want to be able to represent to her that she can go back home or whatever. When do you think we will get to the hearing, a 402 hearing at the earliest, assuming that this is--
THE COURT: Well, having never seen any of these materials, you would actually be in a better position to tell me.
MR. COCHRAN: Well, I think your Honor is a hard worker and you can get through these tapes. It is like lay's potato chips, you can't put them down and you can't eat just one. Once you start listening, you are going to have to keep on going. But given your other constraints, you have other things to do, so I understand that, so you can get through the tapes in thirteen, fourteen hours, but the question is going to be, your Honor, we are going to brief it and give you the offer and they get to brief it and then there will be arguments back and forth and she has been out here since Sunday, so I am trying to get a sense.
THE COURT: Well, counsel, today being Wednesday, I think it would be overly optimistic that the Court would be able to entertain argument on the matter before Monday of next week.
MR. COCHRAN: I want to give her an option, she wants to go back or whatever, so I think that is probably a realistic appraisal with the weekend.
THE COURT: And the problem is, Judge Reid has the only copy of the tapes that has been proffered to the Court.
MR. COCHRAN: Well, we can give you--we can this afternoon--we will have a copy for you this afternoon.
MR. DOUGLAS: (Nods head up and down.)
MR. COCHRAN: Redacted copy, yes. Redacted copy.
THE COURT: All right.
MS. CLARK: Your Honor, we would like a copy of anything given to the Court. We want to--
THE COURT: Done.
MS. CLARK: All right. Thank you.
THE COURT: All right. All right. We are clear on that. Now, as to this in chambers issue, counsel, I will entertain your comments for five minutes. I realize you want to make your record. I'm going to restrict this, however, to one speaker per side.
(Discussion held off the record between Defense counsel.)
MR. SHAPIRO: Thank you very much, your Honor. Your Honor heard this morning from Miss Clark about ethical responsibilities and why they had to pursue this remedy and approach you like a doctor would a patient who had a malignancy and say that we may have to go for a complete recusal. That was behind your back. That was done in front of Judge Reid after they knew you had sent it out for a limited purpose. But the true reason of why they sought your recusal came out in an honest and frank discussion by Mr. Darden today in chambers. Mr. Cochran was present, Dean Uelmen was present, I was present, Miss Clark was present, and Mr. Darden was present. We wanted to be on the record. They wanted to be off the record. You allowed it to be off the record. We find in hindsight that was unfortunate. Mr. Darden sat next to you at your desk and--sat adjacent to you at your desk.
THE COURT: Everybody sits on the other side.
MR. SHAPIRO: Be a better term.
THE COURT: Yes.
MR. SHAPIRO: More accurate term. And said, "You seem to be in a better mood today, your Honor." And--
THE COURT: That is because I had all the transcripts packed up and ready to go.
MR. SHAPIRO: That's right. And you pointed that out to him and you said you were ready for your vacation, which is long overdue and well deserved. He then, however, got to the heart of the matter. He said, "Judge, I haven't vented in a long time and I would like to vent. We think you have been unfair with us. We think you have been unfair to the Prosecution. It started with Mr. Kelberg. You cut Mr. Kelberg off. You allowed Mr. Cochran six days of cross-examination and you would not allow Mr. Kelberg cross-examination. You embarrassed Mr. Kelberg. You ridiculed him in front of the jury and we don't like that. You also continued to do that the next day with Miss Clark. You cut her off. You vilified her in front of the jury. We don't like that." And that was the reason that they had threatened this recusal against you. And Mr. Cochran, with control, became so indignant, as did I and as did Dean Uelmen, that we literally stormed out of your chambers, and for that we apologize, but it was not an affront to you, but rather that we were so set--we were so taken back by what amounted to prosecutorial extortion of the judiciary that we felt that it had to be addressed and had to be corrected immediately. Mr. Cochran made certain comments that what the Prosecution did warranted being referred to the state bar for unethical conduct, and that is going to be our intention for an investigation as to whether or not they have attempted to obstruct justice in chambers by putting you in an uncomfortable and untenable position that you have been unfair personally to Miss Clark and unfair personally to Mr. Kelberg. We find that reprehensible. And we are going to have this record clear and make sure that a complete and thorough investigation takes place as to what took place in your chambers this morning. But fortunately for Mr. Darden, he did tell the truth. He told you what the reasons were. He told you why they were unhappy. This was payback time and we have seen it before. Mr. Bosco told us about it from the witness stand and now we see it--we haAngeles it with Dr. Golden, that if they don't go along with their theory, they will come in and destroy him. And the same thing was attempted with you. And we want the record to reflect it. We want the record to reflect absolute and unequivocal and joint feelings that this is unethical conduct at its highest and that we will pursue all remedies that the law allows. May I just have one moment?
(Discussion held off the record between Defense counsel.)
MR. SHAPIRO: The implicit message was we are sending you a message, and in fact I related this to your Honor as I was walking out of the courtroom--out of your chambers--and I said they want to play with their ball on their field with their referee, and as soon as you disagree with their decision, you are out. And they were sending you a message, a loud and clear message that after you've tolled long and hard for a year on this case, that you could be out overnight, and they were going to tell you they were unhappy. Miss Clark put it on the record the day before, I'm very unhappy with you, Judge. I have never been treated worse by any Judge or any court. We all know that is not the case. We all know that at times you do get exasperated, but I think you have shown great patience to all of us, but you have come down hard on members of the Defense team and you have come down hard on members of the Prosecution team and many times we have all acknowledged that was well-deserved and told too late. But to come into your Honor's chambers and to invade the sanctity of judicial independence and let them know in the middle of a trial, at the end of a trial, that they are displeased with you and the way they are being treated, is unethical conduct. Thank you.
THE COURT: Thank you, counsel. Mr. Darden.
MR. DARDEN: Your Honor, I'm so offended at Mr. Shapiro's remarks, remarks that I am sure that are being fed to him by Mr. Cochran, but I'm so offended by those remarks that I would rather not stand at the podium at which he stood a few moments ago. For a year now these Defense attorneys have been holding over your head the issue of Captain York and Detective Fuhrman. It is extortion. It has been a year long extortion attempt by the Defense to get you to allow as much racist and irrelevant and inflammatory incidents into trial as possible. They have known about Detective Fuhrman. They have been talking to a retired police officer named Mr. Evans all year. They knew about encounters supposedly had between Captain York and Detective Fuhrman. They knew all about that. But rather than just confront all of that and tell you and tell us and tell all of us about some of the issues concerning Detective Fuhrman, they decided to wait until the end of the case. When they talk about unethical conduct, I think it is unethical to present a defense that is based completely on mistruths, lies and deception, and that is what they have done throughout this case. I think it is unethical for counsel to hold press conferences in this courtroom and downstairs on the first floor and tease the public and tease the media by throwing them bits and pieces of the contents of these tapes, arousing the public, arousing a certain element of certain parts of the public and inflaming their passions in an attempt to exert political pressure over you and in attempt to pressure you to admit into this case the Fuhrman tapes, tapes that are largely, if not completely, irrelevant to the issues at hand.
The issue here is Kim Goldman, Patti Goldman, Fred Goldman and the Brown family. The issue here is whether this Defendant killed Nicole Brown or Ron Goldman or not. The issue here isn't my ethics. The issue here isn't racism and the issue here isn't Detective Fuhrman and it isn't their egos or how much money they can make or how many talk shows they can appear on. This case is a circus and they made it a circus and I know that you have tried to do everything you can to prevent that and so have we. Now, if Mr. Shapiro and Mr. Cochran want to refer me to the state bar, fine, because when this case is over I'm going to be referring Defense attorneys to the United States Attorney's office. And he chuckles now, but will he be chuckling later on? It won't be so funny later on. They don't know everything that I know. You know, back in February you and I had, for lack of a better term, a run-in. I think it was February. And I apologized to this Court for my conduct. And I am not above apologizing, your Honor. I have no apology to offer to this Court or to the Defense for my comments this morning. When we were here back in February, and after my apology, I asked your permission to speak with you on those occasions when I felt that there were issues that you and I should talk about, you know, that I be allowed to vent on occasion, and I think the Defense made a similar request of you at some point, whether it was on the record or not, because I know that we have all gone into chambers off the record and complained. They complained about the fine you gave them for the discovery violation off the record. They complained about the fines you gave Mr. Neufeld off the record. They complained about the manner in which they were treated by you or they complained about rulings off the record. We raise the issue of bias because we are compelled to do so under the rules of ethics that apply to attorneys, because we are Prosecutors and because the code of civil procedure requires us to do that. I'm sure the Court noticed that Miss Clark read from prepared--from a prepared statement this morning. When I went into chambers this morning, I went into chambers to vent, to complain to you that I did not appreciate the manner which Mr. Kelberg and Miss Clark was treated before this jury by the Court. I feel like I have that right. I mean, if I don't have that right, Judge, just tell me. If I am out of line, just tell me. Just tell me to sit down and shut up, as the Court has in the past, and I have done just that, but the Court granted me that privilege. But I wanted to complain about that. I wanted to complain about them and their press conferences in this courtroom. I have sat here and listened and endured that for the last twelve months. I shouldn't have to. The public shouldn't have to. This is a court of law. I wanted to inform the Court of our position on the recusal issue. I wanted to discuss with the Court how it is that we were going to handle not only the Fuhrman tapes, but the witnesses that relate to Fuhrman as well. Is there--if there is an issue of bias as it relates to Detective Fuhrman, is there also an issue of bias that we have to deal with as it relates to who might also impeach Detective Fuhrman? I came into chambers to try and hammer out some of the issues that are confronting us so that we can continue with this trial, convict this Defendant, and so that I can get on with my life. And if there is something wrong with that or unethical about that, well, I'm sorry. The manner in which I was treated by Mr. Shapiro and Mr. Cochran this morning, it was that type of conduct that I was there to try and prevent, Judge. I wanted to complain to the Court about the constant run-ins and confrontations between the Prosecution and the Defense. What I was extending to the Court and Defense counsel this morning was an olive branch, but what I got in return was something else. I have always acted in an ethical manner before this Court and before every other court, I would like to think, and I think I have a reputation for being fair, even as a Prosecutor. I think I have that reputation in all communities within this county, Judge. And if they want to refer me to the state bar, hey, they can line up behind all the LAPD officers that I investigated and prosecuted for perjury and for planting evidence and for lying and cheating. They can take a number. Yesterday when we went to Department 100 I saw something that I hadn't seen in a long time, Judge, and I wanted to bring this to your attention. I saw Judge Bascue shut Mr. Cochran off. Mr. Cochran made a few remarks, Judge Bascue told him he wasn't interested in that. At the completion of those remarks he said to Mr. Cochran "Submitted?" Mr. Cochran said "Yes." The next time Mr. Cochran attempted to rise again and address the same issue over and over again, as he is prone to do, the Judge cut him off.
THE COURT: All right. Mr. Darden, would you wind it up.
MR. DARDEN: I would like to see that happen over the next month if possible at all, Judge. And that is another issue I wanted to bring to your attention. I'm sure that I did not offend the Court, and so the record is clear, at no time did I tell your Honor that the reason we raised the recusal issue was because we were dissatisfied with the Court's treatment of our lawyers; isn't that correct? I thank you for your time, your Honor.
THE COURT: All right. No, I have given both sides the opportunity to vent their positions and to make their record.
MR. SHAPIRO: Your Honor, just brief, and Mr. Cochran was personally attacked, and I would--
THE COURT: Well, counsel--
MR. SHAPIRO: I would like the Court to at least let Mr. Cochran respond for himself.
THE COURT: No, counsel, this is an extraneous issue. If you feel you need to take remedies beyond this Court, you are entitled to do so. Discussions between counsel in chambers oftentimes off the record, oftentimes venting, both sides, and you know, I try to go right down the middle here, and the fact that we've got people on both sides--I mean, Mr. Neufeld, my recollection was Friday, that he was outraged at the way I cut him off at the end of the day and he wanted to make a record and he was angry. Same thing happened to the Prosecution. But at some point in time these things have to come to a conclusion and at some point in time we have to recognize the fact that we have a jury that is way overdue as far as the time that they were told that they would have committed. I am very concerned about the durability of this jury as they sit, and my primary interest at this juncture is to get this matter to the jury for them to decide. And on Friday I told counsel on both sides in no uncertain terms on the record that the extraneous stuff needs to be closed down early, that we need to concentrate on the facts and circumstances of this case and that we need to proceed to a judgment by this jury in this case. All right. Counsel, I have the jury over at the hotel because I had no idea what was going to transpire this morning. It is now 10:30. My proposal is that we come back at one o'clock and start with Michele Kestler. And I apologize to her for having canceled all of her medical appointments.
MR. NEUFELD: Your Honor, if it is possible, there are a couple of preliminary requests with respect to Miss Kestler that I would like to resolve before she takes the witness stand and resumes the stand. I can do it now, in an hour, if you like. In light of what has just transpired, it is up to you, but I would like to spend at least five minutes of the Court's time dealing with some preliminary matters with regard to the witness.
THE COURT: All right. Umm, who is going to be presenting the--Mr. Darden?
MR. DARDEN: Yes.
THE COURT: Is Miss Kestler your witness?
MR. DARDEN: Yes.
THE COURT: All right.
MR. NEUFELD: Now?
THE COURT: Mr. Neufeld.
MR. NEUFELD: First of all, your Honor, with respect to Miss Kestler, I would like the Court now once and for all to consider her an adverse and hostile witness. As you may recall--and I think both for subjective reasons and objective reasons--as you may recall, there were maybe four or five instances during the first fifteen minutes of the direct examination where I had to ask the Court to strike her examination--strike her answer as being nonresponsive. On at least one occasion you granted that request. There was no question that she was not necessarily cooperating with my questions and being totally responsive in that regard, and I think that was very clear from her demeanor as well.
THE COURT: So you are asking for the opportunity to ask her leading questions?
MR. NEUFELD: That is all I'm asking for at this time, your Honor. Also, I think there is no question, given her role as the head of the SID criminalists laboratory in this case, which has been attacked as part of the Defense theory of the case throughout those proceedings, there is no question that she has an adverse position to the Defense in this matter. Moreover, on a very subjective and personal level, she, during the July 13th interview with her, acknowledged her resentment toward the Defense and toward, you know, what had happened so far between the Defense allegations and the laboratory that she is responsible for.
THE COURT: All right.
MR. NEUFELD: So I believe it is totally appropriate at this time.
THE COURT: All right. Next issue.
MR. NEUFELD: Okay. Your Honor, at the--a few minutes ago you mentioned that--how Friday I went into chambers and I expressed my--I wanted to make a record after the Court said that it felt that--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: I lost track of the day. Monday, thank you. On Monday afternoon, how the Court felt that the examination of both Rieders at this point in time and also the direct examination of Miss Kestler were not very probative and not very useful, were extraneous, and umm, should be dealt with accordingly. And what I wanted to say, your Honor, on that regard, is, first of all, you have to recall that the issues about the quality of the work of the criminalists in this case has been a very important portion of the Defense theory of the case and we are talking about contamination and corruption of the evidence--
THE COURT: Uh-huh.
MR. NEUFELD: --by members of that lab.
THE COURT: So why don't we get to that, because asking Michele Kestler if she recollects meeting with particular individuals over a year ago, whether or not she took notes at those meetings, et cetera, et cetera, is fascinating testimony to see what her recollection powers are, but the issue is did she look at some of this evidence, did these issues occur to her? Has she taken some different steps since this case started to reevaluate whether or not, for example, they ought to put swatches in plastic bags? Have they reevaluated that policy in light of what has happened here? Have they decided to retrain their individuals regarding blood collection? There is a lot of interesting stuff she can talk about. She can talk about the fact when she looked at the sock for inventory purposes she didn't see any obvious blood staining. There is a lot of very practical relevant stuff you can ask her. But whether or not she remembers meeting with two other individuals a year ago and who took notes or what it was about, if you look at the jury, they are looking at you, they are looking at the witness, they are looking at me going what is this about?
MR. NEUFELD: Well, actually--
THE COURT: That is my point.
MR. NEUFELD: Actually it is funny, and that is the subjective impressions of the jury. Other people who I spoke to who were watching the jury felt that they were looking but not--not with that reaction but rather looking at the witness rolling their eyes at her answers which they thought were pretty incredible.
THE COURT: Well, you can interpret that two ways: Rolling their eyes saying what does this mean? Why are we doing this? This is ridiculous, or--
MR. NEUFELD: I agree, we can all spend our days reading tea leaves, but I don't want to do that, but the reason I wanted to ask those kind of questions, for instance, is the witness was very resistant in admitting that she had any kind of hands-on involvement in this particular case. You know, for instance, in the things you were just saying, that she did have some hands on involvement.
THE COURT: So why don't we get to that?
MR. NEUFELD: I'm going to, but I wanted to at least elicit from her and demonstrate that from the very first day she was personally participating in the meetings that made the important decisions about this case.
THE COURT: Why don't we ask her.
MR. NEUFELD: She was giving me a difficult time.
THE COURT: Ask her that question. Did you participate in a series of meetings at the beginning of the investigation in this case and did you have some overall supervisorial responsibility? That is a compound question but it is only two questions.
MR. NEUFELD: The problem was when I asked her about the meetings and then she said, no, and I tried to move off of that, Mr. Darden objected saying assumes fact not in evidence because she wasn't even acknowledging her presence at the meetings.
THE COURT: Mr. Neufeld, she is the lab director.
MR. NEUFELD: I understand that.
THE COURT: Okay.
MR. NEUFELD: The last thing I would like to say, your Honor, in that regard, is I am somewhat concerned when the Court expresses its either impatience or whatever feelings it has about a lawyer's examination, be that lawyer myself, be that lawyer Miss Clark or anyone. And what I would simply ask your Honor is other than ruling on those objections, if you do have that kind of concern with what I'm saying or what Miss Clark is saying or any of us are saying, that we do that at a side bar.
THE COURT: Well, here is the problem, counsel. As a matter of judicial philosophy I have always preferred to let the lawyers try their cases because I don't presume to know what it is you are trying to prove. I assume you know what you are doing. But at some point in time if it doesn't make sense to me, and I have tried to pay close attention to everything that goes in this case, if it doesn't make sense to me, I have the impression that it is probably not going to make a lot of sense to the jury. And I'm trying to encourage you--and you will notice most of these exasperating comments that I make come late in the day.
MR. NEUFELD: Okay.
THE COURT: All right. I will consider that.
MR. NEUFELD: Thank you. Now, on a very specific basis on one issue. One of the things I'm going to be going into with this witness is the--she personally collected evidence on August 26th from the Bronco, but you made a ruling in this case early on that the luminol testing is not admissible. I don't intend to go into it. In fact, I told Miss Kestler that if I mention the fact that she collected--if I elicit her from the fact that she collected items of evidence from the Bronco on August 26th to evidence her own personal involvement in the criminalistic aspect of this case, that she is not to bring up the luminol testing. She can simply say we were there to do other tests or whatever. And I just wanted to put that on the record at this time to make sure it doesn't come out and to make sure also that by me asking her about her going to the Bronco on August 26th and actually collecting a bloodstain from one place or coins or other trace evidence, that that doesn't open the door to the Prosecution going into the fact that luminol testing was done on the Bronco. So that is one substantive matter that I do need to resolve right now before I do continue with my direct examination.
THE COURT: All right.
MR. NEUFELD: And I believe that would be the only item of substance that needs to be resolved.
THE COURT: Mr. Darden.
MR. DARDEN: On the issue of the luminol testing, am I understanding Mr. Neufeld to say that there should be no mention of samples obtained?
THE COURT: Well, I don't know which--specifically which parts of the Bronco console or whatever it is, which of the swatches that we are talking about specifically. But the Court's ruling was pretty clear. If there are no confirmatory tests, that presumptive test doesn't come in, so what--if he carefully frames the question, that is the status of the case, that is the law of the case.
MR. DARDEN: Okay. So basically the rule then that is there is no mention of luminol test. I don't want the witness to be precluded from explaining her reasons for seizing certain stains.
THE COURT: Well, let's see how the testimony goes. I mean, obviously the point he wants to make is that she was personally involved in evidence collection.
MR. NEUFELD: And that is the extent of it.
THE COURT: That is the issue.
MR. NEUFELD: Right.
THE COURT: Okay.
MR. DARDEN: On the issue of Miss Kestler being an adverse witness, by the way, your Honor, you know, the Court saw Miss Kestler--Mrs. Kestler and you watched her demeanor. To declare every witness who happens to work for the LAPD as some kind of adverse witness, I think it is unfair and it is unnecessary. I was objecting during the direct testimony because counsel was mixing apples and oranges in terms of her responsibility and participation during the time that she was assistant lab director in June and July and when she subsequently became the lab director after July. Her duties changed. The questions he was asking were vague. They were vague to me and they were vague to her as well and that is why I was making the objections that I was making. In any event, if anything, Miss Kestler gave more answer than the question required. It didn't appear at all to me that she was being reluctant at all or if she was hiding anything or if she harbored any animus toward Mr. Neufeld. The LAPD SID lab is opened. They have opened the lab on days when it is normally closed for the Defense. They have closed the lab on days when it was normally opened--opened for the Defense as well. They have made all of their employees accessible to the Defense to be interviewed. Everyone that they have asked to interview has been interviewed at her direction. I mean, how can we now declare her an adverse witness?
THE COURT: All right.
MR. DARDEN: It is just unfair.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: I have a real problem with her subsequent remedial conduct in terms of her having changed policies and stuff after--after June 13th. I have a real problem with relevance on that, but that is another issue. And as far as Mr. Neufeld's mention of--mentioning of perhaps the Court should take us to side bar to straighten us out on those occasions when the cross has gone to a little too long, that is what I was trying to get at this morning, and we agree with that.
THE COURT: And I have done that on many occasions, invited you over without the court reporter and encouraged you to move along.
MR. DARDEN: Okay. And we appreciate that. But I think we would all like to see--to see those issues handled that way as often as possible and I should say that I don't consider Mr. Neufeld's mentioning of that issue before the Court this morning as some type of unethical--form of unethical conduct as well, your Honor. But I would strenuously object to Miss Kestler being described as an adverse witness at this point, your Honor.
THE COURT: All right.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One second, your Honor.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Your Honor, just one point. No. 1, when I mentioned what I would like to see happen prospectively, I did not mention it in the context of some motion that I was about to make to the Court asking you to change our position 180 degrees and saying now we wants you to consider the admissibility of these tapes.
THE COURT: Counsel, counsel, we are talking about something else. Let's talk about this issue.
MR. NEUFELD: What I said about handling at a side bar I said on the record in open court. I didn't say that it should be done in the robing room in chambers off the record.
THE COURT: Are you interested in any of the other issues?
MR. NEUFELD: The other issues I think have been addressed.
THE COURT: Thank you. I will allow some limited leading of this witness, depending on the situation.
MR. DARDEN: So can the Court instruct counsel to seek the Court's permission before--
THE COURT: Yes, gentlemen.
MR. DARDEN: --leading the witness?
THE COURT: Yes.
(Discussion held off the record between Defense counsel.)
MR. COCHRAN: Judge, may I raise one other issue?
THE COURT: Yes.
MR. COCHRAN: The issue has to do with the so-called jury view.
THE COURT: Yes.
MR. COCHRAN: We have been tied up with other matters, as the Court is aware.
MR. DARDEN: Your Honor, I'm sorry to interrupt Mr. Cochran, but can we have the lawyers who went to the viewing down here to discuss this issue?
MR. COCHRAN: Before do you that, let me just indicate with regard to that issue the Court had asked us to put something in writing, I believe by Wednesday. We have been tied up with other issues. And is the Court still of a mind to still do this? You know our position in the matter. If we are going to argue it, that is fine, we can do it later, but in view of all the things that have happened and things we have to do, is the Court still of a mind to try and do that?
THE COURT: Yes.
MR. COCHRAN: Perhaps we can have until morning to put something in writing and put something in writing tomorrow.
THE COURT: Mr. Byrne, what about the modifications at the scene, specifically the lighting?
MR. BYRNE: We are ready to go ahead. The lighting has not been changed, so they have looked into that and taken care of it--they have people working as well--that the street lighting has not been changed.
THE COURT: Interesting.
MR. COCHRAN: Well, you will entertain argument before you make a final decision?
THE COURT: Yes.
MR. COCHRAN: I want to get it back on calendar because we think that we have some cogent arguments you may want to listen to regarding the--this is not necessary and the overall cost and that sort of thing, especially if we've got to make adjustments at the scene, but I would like to argue that at the appropriate time or have Mr. Scheck argue it.
THE COURT: Tomorrow.
MR. SCHECK: Did he just say the lightbulbs are the same as they were?
THE COURT: I think he is indicating street lighting.
MR. BYRNE: Street lighting.
MR. SCHECK: Street lighting.
MS. CLARK: Where?
THE COURT: Street lighting.
MS. CLARK: At Bundy or Rockingham?
THE COURT: Bundy.
MR. SCHECK: Your Honor--how do you want to handle that, Judge? Do you want us to put it in writing?
THE COURT: I want your objections--I mean, there were specific discrete things we looked at Sunday night.
MR. SCHECK: No--
THE COURT: We looked at low voltage lighting and we looked at high voltage lighting, we looked at shrubbery, we looked at overhead street lights, we looked at views from across the street, we discussed which photographs were relevant, we discussed many things. So organize it, put your thoughts in writing, give it to me tomorrow morning.
MR. SCHECK: The only thing that I want to mention in that regard is that in terms of--just in terms of how you wanted to proceed on that, you had indicated that if there were going to be changes made that you wanted to go out again to take a look particularly at the Bundy location to see if we could do it, so a second jaunt might be required. Is that still your--
THE COURT: I think that is implicit.
MR. SCHECK: Okay. Thank you, your Honor.
THE COURT: All right. Any other issues we can resolve while we still have some court time?
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Counsel, thank you. We will stand in recess then until one o'clock.
MR. GORDON: Thank you, your Honor.
THE COURT: All right.
MR. COCHRAN: Is today a five o'clock day?
THE COURT: Five o'clock day, yes. Thank you.
(At 10:49 A.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; WEDNESDAY, AUGUST 16, 1995 1:50 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, I just wanted to ask a couple of scheduling questions before we return to Michele Kestler. My recollection of some of our discussions earlier today and yesterday was that after Miss Kestler, the Defense wanted to present the testimony regarding--from Miss McKinney and related items, correct?
MR. COCHRAN: Yes. I believe that is correct, your Honor. We had tried to--so we wouldn't have any down time, I had tried to arrange Mr. Weitzman, who's unavailable until the first of the week. As you may know, we're going to have this officer from Chicago, Officer Berris, the officer who recovered--it may or may not be necessary to have the officer who recovered the glass which is now out here, and the glass and the bloody towel. Then we have Menzione and then there's a fingerprint man from LAPD. As you know, Mr. Simpson's fingerprints weren't found anywhere, and we want to call Aguilar I guess his name is, Aguilar, Menzione perhaps from Chicago, Berris from Chicago. Howard Weitzman won't be available until the first of the week, and then of course we have--we pushed back Mr. Ragle. And then we have--so the next up would be Miss McKinney because she's here from North Carolina in addition to that. So that's kind of where we are. And I don't know if we'll have any downtime, but I was working over the lunch hour trying to see who else we have now. Perhaps the fingerprint person. The other people, it's going to be hard to get before the first of the week.
THE COURT: I was about to say, because obviously given our late start today for reasons beyond this Court's control, we may not--I hope to at least finish Miss Kestler today. Assuming we can do that, I hate to lose any more court time with the jury since we lost an entire day yesterday. So what my inquiry is, is there anybody after Miss Kestler that we can perhaps--perhaps the Prosecution can assist you in getting available, for example, the fingerprint person or somebody like that.
MR. COCHRAN: We would like to talk to Detective Lange and we would like to talk to Mr. Aguilar. The others--I just can't--I called Howard Weitzman today. He's involved in some new ventures and he won't be available if at all until the first of the week. The detective now can't come until the first of week. I think the problem with Menzione is the same. But I think with Aguilar, if we can talk to Lange, that might be helpful.
MS. CLARK: I thought with Menzione, there was an admissibility issue that needed to be resolved.
MR. COCHRAN: So that's--if they can help us with Lange, possibly Vannatter and Aguilar I would think and then we'll--and we have the McKinney matter.
THE COURT: Okay. Because, as I indicated to you, I think the soonest that I will be able to review the materials on the McKinney issue will be by Monday morning. So--
MR. DARDEN: We're going to need until Monday morning I think to file a response.
THE COURT: No. I understand that. I understand that.
MR. DARDEN: The fingerprint--
MR. COCHRAN: We want--we do want Fuhrman too. We asked--I asked for Fuhrman yesterday. So we want Detective Fuhrman back here. So--
MR. DARDEN: What day?
MR. COCHRAN: Well, depends what the Court--I suppose that Monday will be soon enough now given where we are. By Monday.
MS. CLARK: May we inquire, after Michele Kestler, is it Aguilar?
MR. COCHRAN: Well, if you can get Aguilar. He's an LAPD witness.
MR. DARDEN: He's upstairs in my office now. If we just say when we want them, they'll--
MR. COCHRAN: Okay.
MS. CLARK: And after Aguilar?
MR. DARDEN: Tomorrow morning. Mr. Aguilar will be here tomorrow morning.
MR. COCHRAN: We might want to talk to him this afternoon. We would like if possible, if Detective Lange is in the building, Lange or Vannatter, to talk to them this afternoon, which might save some time. We have a couple of questions to ask them. We can talk to them, and we might save time. And I think that's--
THE COURT: Are they available or think you can talk to them over the next break?
MR. DARDEN: They're upstairs eating donuts as I understand it right now, your Honor. So if someone wants to talk to them, we'll have them come down.
MR. COCHRAN: We would like to talk to them if we can.
THE COURT: Okay. Then you can chat with them at the break and see if we can--
MR. COCHRAN: Lange, Vannatter and Aguilar. But we still wouldn't have enough to fill the day if that's your question. Don't you have to listen to the tapes anyway?
THE COURT: I have to. But the problem is, I can do that on my own time.
MR. COCHRAN: Yes.
THE COURT: I'm concerned about putting the jury on ice again.
MR. COCHRAN: Sure.
THE COURT: And, you know, as I expressed to you this morning, I'm concerned about the durability of this jury.
MR. COCHRAN: And we are too, your Honor. Let's proceed with Miss Kestler. Let me look at our list and let's see where we get today and let me talk to you back about it at the end of the day. Because it's important also, we want that brief for you. There's a number of things, as you always say, Judge, we've got a lot of things that are coming together all at once.
THE COURT: But you got a lot of lawyers too.
MR. COCHRAN: Well, yes. But they can only do so much, but we're going to get it done.
THE COURT: Well, I seem to manage to stay up with you. So--
MR. COCHRAN: You do, Judge, and you should be complimented for that. I was particularly impressed with all those transcripts you had out in there. Did you put them all back now?
THE COURT: Nope. I was packing them up. All right.
MR. DARDEN: Your Honor, one additional issue if I may.
THE COURT: Yes. Mr. Darden.
MR. DARDEN: This morning when Mr. Neufeld asked the Court's permission to declare Miss Kestler an adverse witness, she has indicated to me that during that July 13 conversation with Defense counsel, she did not tell them that she resented them. In fact, she told them the exact opposite. She did, however, tell counsel that she realized that they were only doing their job, but, however, she felt that at times, she thought they were rude and unprofessional in their demeanor and in the manner that they treated witnesses as I understand it, but she specifically told them she didn't resent them and that she understood that they were only doing their jobs as Defense attorneys. So I'd like to clear the record on that issue.
THE COURT: All right. But as I indicated to Mr. Neufeld, that if we get to the point where he feels that's appropriate, then he needs to approach first. But--and I also indicated I'd allow some leeway in use of leading questions for foundational purposes and getting to particular locations because that seemed to be the problem in getting to specific dates and times. All right. Let's have the jury, please.
MR. DARDEN: Is it okay we use the phone to make sure Mr. Aguilar can be here at 9:00 o'clock?
THE COURT: Yes.
MR. DARDEN: What time will you be taking a break for Lange and Vannatter to come down?
THE COURT: 3:30ish.
MS. CLARK: The Defense was requesting a stipulation of us concerning the latent print lifts, and I had indicated that if they would put it in writing, I probably would. But I haven't seen anything as yet. So I wanted to take the opportunity to remind the Defense to give me something in writing.
THE COURT: Okay. Miss Clark is indicating a willingness to stipulate to the latent print issues. So perhaps--
MR. COCHRAN: I'll be glad to talk to Miss Clark about it. Let me ask another question too. May I?
THE COURT: Be my guest.
MR. DOUGLAS: We talked about a foundational issue, but I think we still need--
MS. CLARK: I talked to Carl Douglas about this last week, and he indicated to me that he wanted me to stipulate to people who lifted the prints. I said, yes, just put it in writing, let me see what you want. That's all I'm asking.
MR. COCHRAN: Just foundational.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: First of all, let me thank you again for your great endurance and patience with us. As I mentioned to you yesterday, that there were--there was a possibility that we would have a delay getting started this morning, and that's why I left you to sleep in a little this morning over at the hotel. And as luck would have it, when we got started or wanted to get started at 1:00 o'clock this afternoon, there was a security problem in another part of the building this afternoon that kept us from getting started, and we were all sitting here waiting and we just--for reasons that are beyond our control, but have nothing to do with this trial, we just couldn't get started.
And as I mentioned to you yesterday, but I don't think I can say it to you enough times, always in the back of my mind, I'm aware that you're either back there or upstairs or at the hotel and I'm always aware that we're taking your time and that court time not spent dealing with you is in your minds wasted time. And I understand your frustrations and concerns that we don't spend more time presenting evidence to you. By the same token, I think you know this is a very long and very complicated case and there are many complicated legal issues that I have to deal with every day regarding what evidence will be presented to you, and unfortunately, some of those hearings I can't take care of in 20 minutes. You've probably learned by now that I'm a very optimistic person. I always think I can do something in 20 minutes which ends up taking me an hour and a half to do as far as resolving some of those issues. And for that fault, I apologize to you. But if I think I stay optimistic, hopefully we'll finish this case soon. Please bear with us, and on behalf of both parties, I thank you for your patience in this matter. Miss Kestler, would you please resume the witness stand, please.
Michele Kestler, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. The record should reflect that Miss Michele Kestler is on the witness stand undergoing direct examination by Mr. Neufeld. Good afternoon, Miss Kestler.
MS. KESTLER: Good afternoon, your Honor.
THE COURT: And you are reminded you are still under oath. Mr. Neufeld, you may continue.
MS. KESTLER: Yes, your Honor.
MR. NEUFELD: Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
DIRECT EXAMINATION (RESUMED) BY MR. NEUFELD
MR. NEUFELD: And good afternoon, Miss Kestler.
MS. KESTLER: Good afternoon.
MR. NEUFELD: Miss Kestler, when we left off I guess it was Monday, I had asked you some questions concerning the extent of your involvement in this particular case and I asked you about your participation in certain meetings, and, if you recall, you said that you didn't recall some of them; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: Now, let me just have this marked for--exhibit 1317, next in line, 1317. And these are handwritten notes of Gregory Matheson.
(Deft's 1317 for id = handwritten notes)
MR. NEUFELD: I'm just going to ask you to take a look at them and to see whether they refresh your recollection as to your participation and attendance at those meetings that I mentioned to you when you were last on the witness stand.
MR. DARDEN: Objection.
THE COURT: All right. At sidebar with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: We are over at sidebar. This is marked exhibit 1317, bears discovery L505 and appears to be handwritten notes from Mr. Matheson. Mr. Darden.
MR. DARDEN: Counsel is offering these notes to refresh the witness' recollection. First, they're not the witness' notes, and next, they don't seem to speak to a meeting. They seem to speak to telephone calls and the like. And so that would be improper, improper use of these documents. In addition, I've asked counsel what exhibits do you intend to introduce in front of this witness. This is his witness. I have the right to know what the exhibits are beforehand.
MR. NEUFELD: No. 1, I don't intend to introduce this into evidence. I can use anything to refresh the witness' recollection. I don't intend to introduce this at all. And the handwritten notes of Mr. Matheson reflect, for instance, not the phone call, but on 6-15, there's a meeting.
THE COURT: This is page L505.
MR. NEUFELD: L505--thank you--to discuss certain aspects of this case. That's a meeting. On page L505, on 6-16-95, there's a meeting to discuss case security.
THE COURT: Anything else?
MR. NEUFELD: That's all it is. Just to show information--
MR. DARDEN: I lodged an objection. If counsel wants to refresh the witness' recollection with that document, it would be nice if he directed the witness' attention to those particular areas and my attention as well, then I don't have to object.
THE COURT: All right. Objection overruled. But why don't you just highlight those excerpts.
(The following proceedings were held in open court:)
MR. NEUFELD: May I approach, your Honor?
THE COURT: You may.
(Brief pause.)
THE COURT: All right. Miss Kestler, if you'd look at that item 1317, specifically the highlighted markings, and see if that refreshes your recollection. Just read it to yourself and see if that refreshes your recollection as to any of the meetings that we discussed on Monday afternoon.
(The witness complies.)
MS. KESTLER: Well, these are the--just a minute. Well, most of these I'm familiar with.
THE COURT: Hold on. Okay. Pose the question.
MR. NEUFELD: Miss Kestler, having looked at those notes of Mr. Matheson's and particular highlighted areas--
MS. KESTLER: Yes.
MR. NEUFELD: --does that refresh your recollection as to, for instance, whether you participated in a meeting about this case on June 15th with Marcia Clark and other members of the--of your criminalist laboratory?
MS. KESTLER: Yes. I didn't know the date, as I recall, was June 15th.
MR. NEUFELD: So now your recollection has been refreshed?
MS. KESTLER: According to--based on the notes, yes.
MR. NEUFELD: Okay. And--
MR. DARDEN: Objection. Foundational objection, your Honor.
THE COURT: Ask her some questions about what the notes are.
MR. NEUFELD: I'm sorry, your Honor.
THE COURT: Foundation, whose notes, does she recognize them.
MR. NEUFELD: Oh. Do you recognize whose notes these are?
MS. KESTLER: I believe they look like Mr. Matheson--it looks like Mr. Matheson's writing. I'm not--
MR. NEUFELD: Okay.
MS. KESTLER: And it has l numbers on it. So that would have been provided by the laboratory. So I presume it came from us.
MR. NEUFELD: Well, all I'm asking you, Miss Kestler, is whether or not now, having looked at those notes, does that refresh your recollection that you did participate in a meeting on June 15th with other members of the criminalist laboratory and the Deputy District Attorney, Marcia Clark, concerning what to do with certain items of evidence.
MS. KESTLER: It refreshes my memory as to exactly what it says here, that what we were going to do with--I don't recall which items.
MR. NEUFELD: But with some items of evidence?
MS. KESTLER: Some items.
MR. NEUFELD: Okay. And having looked at those notes, Miss Kestler, does it refresh your recollection that on the very next day, June 16th, you participated in another meeting about this case with Mr. Yamauchi and Dennis Fung and Erin Riley to discuss--and others to discuss security measures for this particular case?
MS. KESTLER: Well, the only security measures--
MR. NEUFELD: I'm sorry, Miss Kestler.
MS. KESTLER: I'm sorry. Yes--
MR. NEUFELD: All I am asking is whether or not, having looked at the notes, does that refresh your recollection that on June 16th you did participate in a meeting to discuss security?
MS. KESTLER: It wasn't really a meeting. It was a discussion, but yes.
MR. NEUFELD: Okay. You participated in a discussion on the issue of security. All right. And having looked at those notes, does it refresh your recollection that on June 21st, you participated in a discussion with Mr. Fung and Mr. Matheson and Mr. Yamauchi regarding analysis and other generated requests concerning evidence in this case?
MS. KESTLER: Yes.
MR. NEUFELD: And by the way, approximately how many--and by the way, those are all meetings that were held or discussions held just in the first week about this case that you participated in; is that correct?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. And approximately how many crime scenes are processed by your laboratory in a year, in the last year, for instance?
MR. DARDEN: Vague as to "Processed," your Honor.
THE COURT: Sustained.
MR. NEUFELD: About how many cases did your laboratory handle last year?
MS. KESTLER: Now, are we talking about crime scenes?
MR. NEUFELD: Yes.
MS. KESTLER: Okay. Crime scenes, as far as the criminalist going to crime scenes or the entire laboratory?
MR. NEUFELD: Oh, in terms of cases in which your laboratory became involved initially because there was a crime scene that had to be processed and then items were brought back to the laboratory and analyzed.
MS. KESTLER: Okay. For criminalists only, right?
MR. NEUFELD: Yes.
MS. KESTLER: Okay. About--probably about 400.
MR. NEUFELD: And of those 400, how many cases did you personally sit down for perhaps a half a dozen hours straight personally analyzing or examining items of evidence of those 400 cases?
MR. DARDEN: Objection. Irrelevant, your Honor.
THE COURT: Overruled.
MS. KESTLER: Well, we're not--I didn't personally examine anything this first week either.
MR. NEUFELD: I'm just asking you, of those 400 cases, putting this case aside, how many of those cases did you personally examine items of evidence for several hours at a time?
MS. KESTLER: Well, none including this one.
MR. NEUFELD: Well, on June 29th, 1994--
MS. KESTLER: Okay.
MR. NEUFELD: --didn't you--weren't you present with Collin Yamauchi and Greg Matheson in your office for the examination of many items of evidence in this case?
MS. KESTLER: Yes. I thought you were referring to this first week that we were discussing earlier. But yes, I was.
MR. NEUFELD: Okay. And--well, the first week, second week or any week, Miss Kestler, how many of those other 400 cases did you personally participate in the examination of items of evidence which took several hours?
MR. DARDEN: Objection. Irrelevant, vague.
THE COURT: Overruled.
MS. KESTLER: I have--I don't know if I can answer this the way you want it because I personally participated in the field in some of the collection of evidence in some of these cases--I don't know if that would be included--and then later the review of some of that evidence. Would that be included?
MR. NEUFELD: Let me clarify it for you.
MS. KESTLER: Thank you.
MR. NEUFELD: In this particular case, you spent approximately seven hours, would that be a fair estimate, on the evening of--on the afternoon and evening of June 29th, 1994, examining items of evidence in this case with Mr. Yamauchi and Mr. Matheson?
MR. DARDEN: Vague as to "Examine," your Honor.
THE COURT: Overruled.
MS. KESTLER: We did an inventory of the evidence, if I could use that term, and it took several hours.
MR. NEUFELD: Fine. Several hours. I think--would it be fair to say that you started about 2:00, 2:30 in the afternoon?
MS. KESTLER: I believe so.
MR. NEUFELD: And you went to about 9:00, 9:30 in the evening?
MS. KESTLER: Probably.
MR. NEUFELD: Okay. Now, my question is, on how many others of the 400 cases that your laboratory processed in the last 12 months did you spend seven hours back in the laboratory personally inventorying the evidence in the case?
MS. KESTLER: I didn't.
MR. NEUFELD: This would be the only case?
MS. KESTLER: Yeah.
MR. NEUFELD: Okay. And, in fact, not only did you do that on June 29th in this case, isn't it also true that on August 26th, you personally collected evidence in this case at the Bronco?
MR. DARDEN: Objection. Leading.
THE COURT: Overruled.
MS. KESTLER: Yes.
MR. NEUFELD: And on August 26th, Miss Kestler, when you personally collected evidence in the Bronco, where was the Bronco?
MS. KESTLER: I always get this wrong. So let me look at my notes if you will. I can never remember the name. Keystone tow in Van Nuys.
MR. NEUFELD: And now, just so I'm clear on this, the keystone auto garage where this occurred, that's not a public place, is it?
MS. KESTLER: I don't know. You mean, is it used by anyone else?
MR. NEUFELD: No, no, no, no. I'm sorry. I apologize. The--the Bronco was kept in a secured area at the keystone garage; is that correct?
MS. KESTLER: Oh, yes. That's correct.
MR. NEUFELD: And unlike the time when evidence was collected by criminalists in this case at Bundy and at Rockingham, this was in an enclosed area at the keystone facility; was it not?
MS. KESTLER: Yes.
MR. NEUFELD: In other words, the media couldn't stand there and simply take pictures from the sidewalk or from the street, could they?
MS. KESTLER: No, they could not.
MR. NEUFELD: Now, and you, namely the SID unit, the criminalist laboratory ran that--that inspection of the Bronco on August 26th, didn't you?
MR. DARDEN: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: Okay. Was the visit to the Bronco on August 26th done for forensic purposes?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. And when you did that on the 26th, isn't it true that a photographer from life magazine was permitted to be present during that--that outing on the 26th?
MR. DARDEN: Objection. Argumentative.
THE COURT: Overruled.
MS. KESTLER: I believe that's where he was from, yes.
MR. NEUFELD: And, in fact, during that time while you were collecting evidence at the Bronco in this secured yard belonging to the keystone company, were there times where you personally were actually posing for pictures for the life magazine photographer?
MS. KESTLER: No.
MR. DARDEN: Objection. Irrelevant, your Honor.
THE COURT: Overruled. Answer will stand. Are you going to offer any of these photographs?
MR. NEUFELD: Not--not through this witness.
THE COURT: All right. Let's proceed.
MR. NEUFELD: Is it a normal practice when members of your laboratory that you direct are collecting evidence, not in public places, but in secure areas such as the keystone garage, that media photographers are permitted to be present to photograph what happens?
MR. DARDEN: Irrelevant, your Honor.
THE COURT: Overruled.
MS. KESTLER: Could you repeat the question?
MR. NEUFELD: Is it a normal procedure for the SID unit--for the criminalist laboratory that you were the director of to permit media photographers to be present while you are collecting evidence in a murder case at a secure, unpublic, nonpublic facility?
MS. KESTLER: No. I have never permitted it.
MR. NEUFELD: So in your days as the--by the way, before you were named the director of the laboratory, how long had you been the assistant director?
MS. KESTLER: Since 1982. One of the assistant directors.
MR. NEUFELD: Okay. From 1982 to the present, other than this case, has there ever been a single instance where criminalists from your laboratory were collecting evidence at a secure nonpublic facility where a magazine photographer was permitted to be present to photograph the collection of evidence?
MR. DARDEN: Objection. Lack of foundation.
THE COURT: Overruled.
MS. KESTLER: Not to my knowledge. I have never personally permitted anyone including in this case.
MR. NEUFELD: Well, when the magazine photographer showed up, did you tell him that he wasn't permitted and therefore had to leave?
MS. KESTLER: I asked him and I was told that that was approved by a higher authority than me.
MR. NEUFELD: And so you did not do anything to try and alter that situation?
MS. KESTLER: There was a little I could do at that point.
MR. NEUFELD: Okay. Were you--were you--to your knowledge, who was the higher authority that authorized this?
MS. KESTLER: Chief of police.
MR. NEUFELD: And you made no attempt to call the chief of police to explain that it would not be consistent with your policies and procedures to have that magazine photographer present?
MS. KESTLER: Well, once I'm ordered by the chief of police to do something, unless it's really--I know he had been doing other things on this case. So it's not something I would question, and he had someone with him and he was directed by that individual as to what he could do and what he couldn't do.
MR. NEUFELD: Was the chief of police present for this particular criminalist outing?
MS. KESTLER: No.
MR. NEUFELD: Now, at some point in time, in June of 1994 or July of 1994, did you have a discussion with Dennis Fung concerning the fact that Andrea Mazzola was named as the officer in charge on some of these crime scene forms?
MS. KESTLER: I don't recall when I had a discussion with Dennis Fung, but several of us had a discussion with Dennis.
MR. NEUFELD: And when you had that discussion with Dennis Fung about this particular matter, did you advise Dennis Fung that it would not look very good if it came out in the grand jury that Miss Mazzola was--who was a trainee was seriously involved in this case?
MR. DARDEN: This is hearsay, your Honor. Objection.
THE COURT: Sustained.
MR. NEUFELD: Well, at the time that you met with Dennis Fung and had a discussion concerning Miss Mazzola being listed on the crime scene form as the officer in charge, was it a concern to you that this might get out; namely, that she was a trainee and listed as the officer in charge?
MS. KESTLER: No.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, prior to your taking the witness stand in this case, did you--were you interviewed by Mr. Scheck and myself?
MS. KESTLER: Yes.
MR. NEUFELD: And did that meeting occur at the office of the counsel for the city of Los Angeles?
MS. KESTLER: Yes.
MR. NEUFELD: And was it true that the only way you would agree to meet with us before you testified was with your counsel present? Is that true?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: That was not at my--partly, I was concerned, but part of it was the city attorney wanted to be there.
MR. NEUFELD: Are you saying, Miss Kestler, that you don't have the--the ability, the authority, the discretion to meet with lawyers from the other side without counsel present should you decide to?
MS. KESTLER: I do to some extent, but when they advise me that they'd like to be there, they're the attorneys, so I usually take their advice.
MR. NEUFELD: So you took their advice and you decided that you would only talk to us if the attorneys were present?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: That's correct.
MR. NEUFELD: Now, has members of the District Attorney's office wanted to speak to you before you testified today?
MS. KESTLER: Yes.
MR. NEUFELD: And have you spoken to them?
MS. KESTLER: Yes.
MR. NEUFELD: Have you spoken to Miss Clark?
MS. KESTLER: No.
MR. NEUFELD: Have you--
MS. KESTLER: Except to say hello. Yes, I did say hello to her.
MR. NEUFELD: Well, have you spoken to Mr. Darden?
MS. KESTLER: Yes.
MR. NEUFELD: And you've spoken to Mr. Goldberg, haven't you?
MS. KESTLER: Yes.
MR. NEUFELD: And when you met with Mr. Goldberg from the District Attorney's office and you met with Mr. Darden from the District Attorney's office, did you always have counsel from the city present?
MR. DARDEN: Objection. Compound.
THE COURT: Sustained.
MR. NEUFELD: All right. When you met with Mr. Darden to discuss this case, did you have counsel from the city present?
MS. KESTLER: No.
MR. NEUFELD: When you met with Mr. Goldberg each time, did you have counsel for the city present?
MS. KESTLER: No.
MR. NEUFELD: And at that meeting where Mr. Scheck and I interviewed you on July 13th, didn't you say at that time that--
MR. DARDEN: Objection. Hearsay, your Honor.
THE COURT: Overruled.
MR. NEUFELD: Didn't you say during that meeting that you were concerned that the fact that Andrea Mazzola was listed on the reports as the officer in charge?
MR. DARDEN: Objection. Hearsay, your Honor.
THE COURT: Overruled.
MS. KESTLER: Yes. But that's a different question than you asked me earlier.
MR. NEUFELD: Okay.
MS. KESTLER: My interpretation of your question if I may--
MR. NEUFELD: I'm sorry, your Honor.
MS. KESTLER: Well, I want to make--
MR. NEUFELD: I'm just asking--right now, I'm asking if you did say that on July 13th. Is that correct, that you did say that to us, ma'am?
MS. KESTLER: I'm asking you, did I say--are you asking me did I say I was concerned or was I concerned that it got out?
MR. NEUFELD: I'm asking you now, did you say to us on July 13th that you were, in fact, concerned with the fact that Andrea Mazzola was listed on these crime scene sheets as the officer in charge?
MR. DARDEN: Objection. Assumes facts not in evidence, "Sheets."
THE COURT: Overruled. You can answer the question.
MS. KESTLER: Yes.
MR. NEUFELD: Okay. Now, let me go back and ask you a few questions about your own training for your current position, ma'am. Before joining the Los Angeles Police Department, did you work in the public sector or in a private laboratory?
MS. KESTLER: I worked in private industry in a laboratory.
MR. NEUFELD: Okay. And what year did you join the Los Angeles Police Department?
MS. KESTLER: 1976.
MR. NEUFELD: And when you worked in the private sector in the laboratory, did any part of your work concern serology?
MS. KESTLER: No.
MR. NEUFELD: Did any part of your work concern DNA?
MS. KESTLER: No.
MR. NEUFELD: Did any part of your work concern the methods for collecting and preserving bloodstain evidence?
MS. KESTLER: No.
MR. NEUFELD: Now, you're the chief criminalist in a unit of approximately how many criminalists?
MS. KESTLER: Approximately 50 currently.
MR. NEUFELD: And I take it you consider yourself a scientist, don't you?
MS. KESTLER: Yes.
MR. NEUFELD: Would you agree that one of the ways that people in science advance is through publication of their research?
MS. KESTLER: Uh, if--not necessarily research and not necessarily publication. That's one way to do it, yes.
MR. NEUFELD: Well, I'm only asking you if that's one way.
MS. KESTLER: That's one way.
MR. NEUFELD: Okay. And how many articles have you personally authored, you know, in the last 20 years?
MS. KESTLER: Just one.
MR. NEUFELD: And that one article, that involved illegal drugs or illegal drug laboratories?
MS. KESTLER: Yes.
MR. NEUFELD: Have you ever authored any article at all on DNA typing?
MS. KESTLER: No.
MR. NEUFELD: Have you ever authored or collaborated on any article on conventional serology?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Sustained. She said she had one publication.
MR. NEUFELD: Would you agree, Mrs. Kestler, that if you are managing a discipline, okay, or a certain program in the laboratory that you yourself may not be an expert in, that it's important to have people with appropriate qualifications running that program as your subordinate?
MR. DARDEN: Objection. Irrelevant, it's argumentative, assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: Well, you mentioned that it was during the time that you were the assistant laboratory director that a DNA program was implemented at your laboratory; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And would you agree, Miss Kestler, that proficiency in molecular biology is certainly an area of science which is relevant to forensic DNA typing?
MR. DARDEN: Objection. No foundation.
THE COURT: Overruled. You can answer the question.
MS. KESTLER: Yes.
MR. NEUFELD: And as the assistant director of the criminalistics laboratory at the time that the DNA program was created at SID, did you go out and hire somebody with a doctorate, Ph.D. in biology to help set up the program?
MS. KESTLER: No.
MR. NEUFELD: Now, after you set up the DNA program at the LAPD SID--
MR. DARDEN: Objection. That assumes facts not in evidence, she set up the program.
THE COURT: Sustained.
MR. NEUFELD: Did you as the assistant director of the SID criminalistics laboratory play a role in helping to set up the DNA program?
MS. KESTLER: You'd have to be more explicit than that. What role? A managerial role.
MR. NEUFELD: Exactly. Did you play a managerial role in helping to set up that program?
MS. KESTLER: It's hard for me to say. I would say yes at this point, but I would like you to be more explicit if you could.
MR. NEUFELD: Okay. Well, in other words, just so I understand you correctly, ma'am, are you saying you did play some managerial role in the creation of the DNA program at the LAPD?
MS. KESTLER: I still don't understand--I don't really understand your question. I have trouble answering that it's just a flat yes.
MR. NEUFELD: Well, what does it mean to you, you played some managerial role in the creation of this program?
MS. KESTLER: What it means to me is that in creation of that role or in that role, I played the part where I listened to my people, I looked at what they were doing as far as what was required from Twgdam. I insured that they were sent--one of the people that was in fact in charge of setting up the program went to the FBI for several months and, in fact, did research for them under their DNA program and, if you will, was blessed by the FBI to do DNA and came back, and that individual under the guidance of supervisors who also went to classes in DNA and came back and set up the program.
MR. NEUFELD: Okay. So you managed the people who undertook all those efforts that you just described; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And it was your decision in a sense as the manager to send all those people to the FBI and other places to get the training that you deemed appropriate; is that correct?
MS. KESTLER: Right. And I also look for insight from them and other managers as to what programs would be good for them to attend.
MR. NEUFELD: Did you bring in a single outsider with a Ph.D. to evaluate your program once it was set up but before you actually took on casework?
MS. KESTLER: Not really brought into the laboratory, but via the fact that the FBI looked at what our individual people were going to do before they did it. So they didn't actually visually come in and see the facility, but they looked at how we were going to do it.
MR. NEUFELD: I'm not asking you about the FBI and FBI agents. What I'm asking you about, Miss Kestler, is, did anyone who is a Ph.D. in this area come visit your laboratory, visit your laboratory and inspect the set up, okay, and give it that type of critical examination in person before you actually went on line accepting cases?
MR. DARDEN: Speculate--objection. Speculation as to who has a Ph.D..
THE COURT: Overruled.
MS. KESTLER: I'm not sure that the people that came actually physically into the facility had Ph. D's. I do know that the person we consulted from the FBI was not an agent and, yes, he did have a Ph.D..
MR. NEUFELD: But did that person come and visit the laboratory and inspect?
MS. KESTLER: No. No. I'm not trying to make that point.
MR. NEUFELD: All right. Now, would it be fair to say that it would be one of your desires as both the assistant director since 1982 and more recently, the director of the criminalistics laboratory, to make it a modern and scientifically advanced laboratory?
MS. KESTLER: I feel we would always like to stay a modern and--laboratory. We are modern in our techniques if you will. Unfortunately, some of our facilities are not brand new.
MR. NEUFELD: As a laboratory director in the state of California, are you familiar with the manner in which various crime laboratories are run throughout the state?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: If you could be specific, I--
MR. NEUFELD: Well, let me ask you this. Are some of the crime laboratories--do some of the crime laboratories have a civilian head whereas other crime laboratories have a head who is a sworn police officer?
MR. DARDEN: Objection. Hearsay, speculation.
THE COURT: Overruled.
MS. KESTLER: That's my understanding, yes.
MR. NEUFELD: And your particular laboratory, the SID division, is not run by a civilian, it's run by a sworn police officer; is that correct?
MR. DARDEN: Objection. That's vague to "Run."
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Okay. The Scientific Investigation Division of the Los Angeles Police Department does not have at its head a civilian, does it?
MS. KESTLER: Uh, as of this week, yes, it does, but no, prior, it did not.
MR. NEUFELD: Okay. And during the investigation of evidence in this case, the head of the laboratory was a police officer; is that correct?
MS. KESTLER: No. The head of the laboratory--I'm the director of the laboratory.
MR. NEUFELD: I'm sorry. I withdraw that. The head of the Scientific Investigation Division of the Los Angeles Police Department was a police officer; is that right?
MS. KESTLER: That's correct.
MR. NEUFELD: And what is his or her name?
MS. KESTLER: His name was--his name still is Captain Brad Merritt, but he's no longer there.
MR. NEUFELD: All right. And--by the way, Miss Kestler, there's been some discussion by other witnesses about laboratory accreditation?
MS. KESTLER: Right.
MR. NEUFELD: The Los Angeles Police Department laboratory, the one that you're the director of, is not an accredited laboratory by the American Society of Crime Laboratory Directors, is it?
MR. DARDEN: Objection. Irrelevant, your Honor.
THE COURT: Overruled.
MS. KESTLER: No, it is not.
MR. NEUFELD: Okay. There are other laboratories in the greater Los angeles area that are accredited; isn't that true?
MR. DARDEN: It's irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Now, just as laboratories can be accredited, Miss Kestler, is it also true that the level of performance of individuals can be evaluated by certification?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: Could you repeat that?
MR. NEUFELD: Just as laboratories can be accredited, can't individuals have their own performance level evaluated through a certification program?
MS. KESTLER: They can be certified. I'm not sure I would call it performance level. I would say that they can be certified--
MR. NEUFELD: Well--
MS. KESTLER: --in some areas. Not all areas by the way.
MR. NEUFELD: Well, can criminalists be certified?
MS. KESTLER: There is a general knowledge exam for criminalists.
MR. NEUFELD: And that general knowledge exam was offered for many years by the California association of criminalists; is that correct?
MS. KESTLER: I wouldn't say many years. It's been offered in recent years.
MR. NEUFELD: Well, approximately how many years has it been offered?
MS. KESTLER: I want to say it's just the last five or six years. It's a fairly recent program.
MR. NEUFELD: All right. And one of your responsibilities, I think you said the other day, as the first assistant director of the laboratory and now the director of the laboratory is to make overall evaluations of the employees who work for you; is that correct?
MS. KESTLER: I'm not sure I said that the other day. But one of the things I do is I look at evaluations of the employees that work for me. I don't personally write all of them, but review each one.
MR. NEUFELD: And both Dennis Fung and Andrea Mazzola work for you?
MS. KESTLER: Ultimately, yes.
MR. NEUFELD: And as the person in charge of these two individuals, are you aware that neither Mr. Fung nor Miss Mazzola have been certified by the California association of criminalists in the discipline of criminalists?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Now, with other witnesses many months ago in this case, Miss Kestler, there was discussion about the field unit crime scene manual. By the way, have you followed any of the testimony in this case, Miss Kestler?
MS. KESTLER: Bits and pieces when I have time.
MR. NEUFELD: Okay. And would you agree that one purpose of having a standardized manual of policies and procedures would be to make this particular aspect of criminalistics, namely, crime scene investigation, a standardized science instead of a group of freelancers that are doing what they wish to do at a particular crime scene?
MR. DARDEN: Objection. Argumentative.
THE COURT: Overruled.
MS. KESTLER: I think one of the greatest needs for policies and procedures is to standardize as guidelines--obviously, situations arise where you can't always follow policy--the policies and the procedures and make sure that the procedures are in writing so that people can't question that they didn't know how to do something.
MR. NEUFELD: Okay. And is it ultimately your decision as the now director of the criminalistics laboratory to implement a formal manual of field unit crime scene procedures and policies? Would that be one of your responsibilities?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: Well, once the policy manual has gone up through the chain and approved--it's being revised right now--my final blessing along with the assistant director's will be the final say, and it will be implemented--if you will, I won't implement it personally, but, yes, it will be.
MR. NEUFELD: But it needs your final blessing?
MS. KESTLER: Basically, yes.
MR. NEUFELD: Okay. And this manual--
MR. NEUFELD: Which I believe, your Honor, has already been marked for identification as Defense exhibit 1071.
THE COURT: Thank you.
MR. NEUFELD: --was initially prepared in 1992; is that correct?
MR. DARDEN: Objection. Assumes a fact not in evidence, that there is a manual.
THE COURT: Sustained. Foundation.
MR. NEUFELD: Okay. Is there a manual that was started by members of your laboratory to deal with standardized procedures for crime scene investigation?
MS. KESTLER: Yes. A rough draft was prepared.
MR. NEUFELD: And was that rough draft prepared beginning in 1992?
MS. KESTLER: That's when it was prepared, yes, I believe. I'd have to see it, but it was around 1992.
MR. NEUFELD: And in the three years since 1992 when the rough draft was prepared, have you personally reviewed that manual and passed on it?
MS. KESTLER: I began to review it and discovered many things that I either disagreed with or didn't like and sent it back for revision. However, we didn't have a supervisor in that unit since 1992. So it has unfortunately, due to other time constraints, had to wait.
MR. NEUFELD: When did you personally commence the review of this manual?
MS. KESTLER: Shortly after it was written.
MR. NEUFELD: Back in 1992?
MS. KESTLER: That's correct.
MR. NEUFELD: And you made suggestions and criticisms at that time?
MS. KESTLER: Yes.
MR. NEUFELD: And so are you saying, Miss Kestler, that since 1992, when you made those initial criticisms and comments, that no one in the laboratory has made any effort to address those criticisms and make the necessary changes?
MS. KESTLER: No. That's not what I said. I said due to time constraints, it's never been completed. Lots of people have made some effort at working at it.
MR. NEUFELD: And so now in 1995, more than three years later or three years later, this manual still has not been implemented; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And because it has not been implemented, does that mean that there is no formal compulsory written procedures and protocols for criminalists to follow who go out to crime scenes to collect and preserve evidence?
MS. KESTLER: No. There's handouts that they're given at the time of their training, and if any new procedures come on line, those handouts are provided to them.
MR. NEUFELD: But would you agree, Miss Kestler, that the handouts that are occasionally provided to the criminalists are certainly not as extensive and complete as are the subjects covered in this manual?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Now, are some of the items that are contained in the manual--just so I understand this, Miss Kestler, are you saying that some of the items in the manual have also been distributed as handouts to the criminalists?
MS. KESTLER: I can't say for sure that they're in that particular manual that you have, but they have handouts. Ultimately they will be incorporated into the manual. I can't at this time tell you.
MR. NEUFELD: Okay. You mean, it's sort of on an individual basis. Some may, some may not. It would depend on the individual item?
MS. KESTLER: That's correct.
MR. NEUFELD: Okay. Well, as of June 12th, 1994, was it an established procedure at the SID unit that all reports generated as a result of field investigation are to be approved by a supervisor?
MS. KESTLER: They're not approved by a supervisor. They're reviewed by a supervisor.
MR. NEUFELD: So--
MS. KESTLER: Because--
MR. NEUFELD: There was no requirement of actual approval by a supervisor?
MS. KESTLER: It depends what report. We may be talking apples and oranges here. What report are you referring to? Because it may not be a report. It may be a checklist or something.
MR. NEUFELD: Let me show you--
(Brief pause.)
MR. NEUFELD: Let me show you this Defense exhibit 1071, volume 7, page 1, and ask you whether or not this is one of the handouts that has been given to the criminalists as a procedure that they are expected to follow.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. NEUFELD: That one little paragraph.
MS. KESTLER: Well, no. 1, this is not a handout. I can tell you that.
MR. NEUFELD: Okay. Because this is part--that would be part of the procedure manual.
MR. NEUFELD: All right.
MS. KESTLER: Uh--
MR. DARDEN: There's an objection at this time. This is irrelevant.
THE COURT: I think you answered the question. Next question.
MR. NEUFELD: Was it required that prior--that as part of the review of the reports, that the supervisor shall inspect all the case notes and photographs of the criminalists to insure that the notes are accurate and complete?
MS. KESTLER: I'm still not sure--you keep talking about this report that's supposed to be approved, and I don't know what you're referring to because then you refer to case notes, and the only things they have is case notes and photographs.
MR. NEUFELD: Let me clarify that. First of all, are the property reports, the official Los Angeles Police Department property reports that criminalists fill out, are they to be approved by a supervisor?
MS. KESTLER: Yes. That's department policy.
MR. NEUFELD: Okay. And prior to the approval of the actual property reports, does the supervisor also look at the note packages of the criminalists to make sure that those notes are correct and complete?
MS. KESTLER: No. Those are often done at different times at this point.
MR. NEUFELD: All right. Well, even if it's done at a different point, are the notes taken by the criminalists, in this case, those crime scene checklists and the crime scene notes and the inventory and all those notes that the jury's already heard about in this case, are those notes at any time reviewed by a supervisor?
MS. KESTLER: They're ultimately reviewed, yes.
MR. NEUFELD: Well, are they reviewed by a supervisor prior to the end of a trial?
MS. KESTLER: Well, hopefully. Most cases are reviewed well in advance of the trial.
MR. NEUFELD: And the reason they're reviewed, one of the reasons they're reviewed is to make sure they're complete and accurate; is that correct?
MS. KESTLER: Again, it's a checklist. So some things, if it's not in there, you can't always go back and complete it. I mean, it's not something, unless you have a good memory, that you can go back and fill in if you forgot to.
MR. NEUFELD: Was it the established procedure at the Los Angeles Police Department as of June 12th, 1994, that if the--
MR. DARDEN: I'm going to object to counsel referring to this exhibit, your Honor.
THE COURT: Overruled.
MR. DARDEN: The witness already responded.
THE COURT: Overruled.
MR. NEUFELD: That--
MR. DARDEN: It's hearsay.
THE COURT: Overruled.
MR. DARDEN: Foundation.
MR. NEUFELD: That when the notes--
MR. DARDEN: No foundation, your Honor.
THE COURT: Overruled.
MR. NEUFELD: MR. NEUFELD: Was it the established procedure and policy of the Los Angeles Police Department as of June 12th, 1994, that once the notes are reviewed by a supervisor, that if there are deficient note packages, they shall be corrected and supplemented by the involved employees and subsequently filed or stored? Was that the policy of your unit?
MS. KESTLER: Yes. If they can be supplemented and changed. In other words, like I said, you can't always remember something. So obviously you can't supplement it at that point.
MR. NEUFELD: Now, in this particular case--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: I'll show what has already been marked as exhibit 1091.
MR. NEUFELD: Can you put this up on the elmo?
MR. DARDEN: Objection. Lack of foundation.
THE COURT: Sustained. Why don't you establish a foundation with this witness before you put it up.
MR. NEUFELD: Okay. You're familiar, as the director of the laboratory, with the forms that are used by the criminalists out in the field when they are conducting a crime scene investigation; are you not?
MS. KESTLER: Yes.
MR. NEUFELD: And those forms have different boxes which can be filled out providing different information about what's collected; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And the forms, for in--the forms, for instance, have a place to be filled out by the criminalists for each item to give its sample number, for instance; is that right?
MS. KESTLER: Yes. I believe so.
MR. NEUFELD: And to give an id photo, check-off box; is that correct?
MS. KESTLER: Yes or some people can put an id photo number in later.
MR. NEUFELD: But I'm asking whether or not that's in the form.
MS. KESTLER: Yes.
MR. NEUFELD: That you're familiar with.
MS. KESTLER: Yes.
MR. NEUFELD: And the form also has a place to note whether there's an id photo taken with scale and id; is that correct?
MS. KESTLER: Yes. Those boxes are there.
MR. NEUFELD: And there are other boxes for--to describe the item collected; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And to note who the person is who collected it; is that right?
MS. KESTLER: That's correct.
MR. NEUFELD: And the time an item is collected and what it's been packaged in; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And to know what id markings are put on the item or the packaging; is that correct?
MS. KESTLER: That's correct.
THE COURT: All right. Let's move on.
MR. NEUFELD: All right. May I put that up?
MR. DARDEN: Your Honor, objection. This is not a blank form.
MR. NEUFELD: No, this is actually--
THE COURT: Sustained. Foundation. Show her the form and ask her if she knows what it is.
MR. NEUFELD: Fine.
MR. NEUFELD: Showing you exhibit 1091 which has already been identified by Dennis Fung as the form filled out in this case for the first 16 items of evidence collected and ask you, no. 1, is that the kind of crime scene form that you just described to me?
MS. KESTLER: It's one of the forms, yes.
MR. NEUFELD: Okay. And it's one of the forms that are used by your subordinates at the criminalistics laboratory; is that correct?
MS. KESTLER: Yes. This is a very old one, but it's one of the ones that have been used in the past.
MR. NEUFELD: Okay. And you did say that it would be the policy and practice to--for a supervisor to evaluate these forms and to the extent they need to be corrected or supplemented, that is a standard practice; is that correct?
MS. KESTLER: Yes.
MR. NEUFELD: May I, your Honor?
(Brief pause.)
MR. NEUFELD: Now, on this particular form, there are many boxes that are not filled in; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And by the way, at any time prior to today, have you ever even in passing looked at the forms filled out by Andrea Mazzola and Dennis Fung in connection with this case?
MS. KESTLER: In passing.
MR. NEUFELD: Okay. And as you see, there is no notation as to the id photo with scale and id. Those boxes are all empty; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And as you read over from left to right, although they have filled in the location of the item and the item collected, there is no indication as to who collected each item; is that correct?
MS. KESTLER: Not on this form, no.
MR. NEUFELD: And it also has a box after time--by the way, do you notice that for some of the items, they don't even record the time that the item is collected?
MS. KESTLER: Yes, I noticed that.
MR. NEUFELD: And do you also notice that for all the items, they omit to say what it was packaged in? Do you see that?
MS. KESTLER: Yes, I see that.
MR. NEUFELD: And could you now move it over a little bit, please, Howard?
MR. NEUFELD: And do you also see that the boxes requiring--I'm sorry--the boxes calling for id markings--by the way, when they say "Id markings," do they mean what markings were used to identify the individual item?
MS. KESTLER: That's a term that's used characteristically, goes way back to when all items, primarily before biological fluid, collection and things like that, were marked or attempted to be marked if they weren't going to be fingerprinted or something with some sort of id mark of your own. It could be--
MR. NEUFELD: So if my name was Peter Neufeld and I was the officer collecting it, I might put a "PN" on it?
MR. DARDEN: Objection. Counsel cut off the witness.
MR. NEUFELD: Oh, I'm sorry.
THE COURT: Let her finish.
MS. KESTLER: Yes. You might put "PN" or I might put "MK" or I might put an American flag, whatever--whatever you felt was unique to you so that you could id it later once it was out of the package.
MR. NEUFELD: And the reason that that procedure has been in existence for so many years, Miss Kestler, is because it's very important to note very early on who the person is who collected a particular item to begin that chain of custody; isn't that correct?
MS. KESTLER: It's important to know who collected it. It's now not as relevant to mark each individual item because you can't essentially because it's going to be processed either for fingerprints. Obviously cloth squares with blood, you can't mark those, so--but that's the basic philosophy behind it, that you would--no, it's more that you would be able to id it later.
MR. NEUFELD: Well, it begins the chain of custody, correct?
MS. KESTLER: I guess you could say that. I wouldn't necessarily say it begins the chain of custody.
MR. NEUFELD: Well, isn't one of the reasons then to maintain the integrity of the individual item?
MR. DARDEN: Objection. That's vague.
THE COURT: Sustained.
MR. NEUFELD: Does that term "Maintaining the integrity of an item" have meaning to you as director of a crime laboratory?
MS. KESTLER: Well, the term has meaning, but I don't see how it relates to the--to marking the evidence as far as the integrity of the item.
MR. NEUFELD: All right.
MS. KESTLER: I suppose you could relate it to the integrity of the item that if you marked--if you were able to mark something, that you would always know that was in fact the item.
MR. NEUFELD: Well, exactly. And so you would know that it didn't get mixed up, for instance; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: That's one possibility?
MS. KESTLER: One possibility.
MR. NEUFELD: All right. And you said that obviously when you're getting into biological specimens, you can't actually mark the bloodstain itself; is that right?
MS. KESTLER: That's correct.
MR. NEUFELD: But one can certainly mark the envelope that a swatch is placed in, can't one?
MS. KESTLER: Yes. Or the--if you seal it, that's another way of marking it.
MR. NEUFELD: You can put your initials on that envelope?
MS. KESTLER: Yes. In some way, either on a seal or on the envelope or even on the internal bindle if you will.
MR. NEUFELD: All right. But when an item is collected at a crime scene, there's no seal that's placed on the coin envelope at that time; isn't that correct?
MS. KESTLER: That's correct. Most of these items are not marked at the crime scene anyway. They're marked before they're packaged for final booking.
MR. NEUFELD: And you would want to mark whatever packaging the item is in, is that correct, at some point in time?
MS. KESTLER: Yes.
MR. NEUFELD: And you would want to be able to identify that package from the moment you first collected it at the crime scene so it doesn't get mixed up or confused with other items. Wouldn't you want to do that?
MS. KESTLER: Well, as far as--now, are we talking about the id mark or the number?
MR. NEUFELD: I'm asking whether or not you would want to put certain identifying information on a package so it will not get confused. We'll get into specifics after. I'm just asking the general question first.
MS. KESTLER: So that it doesn't get confused, that's correct.
MR. NEUFELD: Okay. Now--
MR. DARDEN: I'm sorry. Are we finished with the form, your Honor?
THE COURT: Mr. Neufeld, are you finished?
MR. NEUFELD: Not yet.
MR. NEUFELD: Now, in contrast to the manner in which Dennis Fung and Andrea Mazzola filled out their notes, you mentioned that you personally participated in the collection of evidence--
MR. NEUFELD: One moment, your Honor.
MR. NEUFELD: --at the Bronco on August 26th; isn't that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And when you participated in that, you too filled out a field note; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And when you filled out--do you have a copy of your field notes?
MS. KESTLER: Yes, I do.
MR. NEUFELD: For the August 26th collection?
MS. KESTLER: Yes.
MR. NEUFELD: Would you please take a look at it?
MS. KESTLER: Oh.
MR. NEUFELD: Take a look at your own.
MS. KESTLER: See it better over there.
MR. NEUFELD: Now, for every item that was collected on August 26th when you participated in the collection, was the id photo box filled in?
MS. KESTLER: Yes. It was filled in later because I like to put the number of the id photo.
MR. NEUFELD: But it was filled in?
MS. KESTLER: Yes.
MR. NEUFELD: And was every box--
MR. NEUFELD: Could you move that sheet back the other way? That's right.
MR. NEUFELD: And was every box that asked the question whether there was a photo with scale, was that also filled in when you collected evidence on August 26th?
MS. KESTLER: Yes. Again, it was done at a later time, but after I got the photos back.
MR. NEUFELD: And by the way, you did not collect all the items on August 26th. Some items were collected by another criminalist; is that correct?
MS. KESTLER: Yes. I directed someone to collect the larger items.
MR. NEUFELD: Okay. And on the same sheet that you filled out on August 26th, Miss Kestler, in the box that says "By whom it was collected," when it was an item that you personally collected, did you put your initials down?
MS. KESTLER: Yes, I did.
MR. NEUFELD: And for items where you directed another criminalist to do the collection, were his initials put in the box?
MS. KESTLER: That's correct.
MR. NEUFELD: And for each and every item that was collected by you and the other criminalist on August 26th, was the time the item was collected filled in?
MS. KESTLER: Yes. I did this a little differently than I normally do because the items weren't collected in numerical order. Often, I put in the time I start and the time I finish.
MR. NEUFELD: Miss Kestler--
MS. KESTLER: If I do it in numerical order.
MR. NEUFELD: Miss Kestler, the question is, isn't it a fact that when you collected evidence on August 26th, you filled in every single box on the field note?
MS. KESTLER: Well, there's a couple I didn't because it was approximate. As you see down at the bottom, I wasn't sure, so where it says approximate--but I guess you could say it's filled in.
MR. NEUFELD: But you filled it in?
MS. KESTLER: Yes.
MR. NEUFELD: Okay.
MS. KESTLER: Put something in.
MR. NEUFELD: To your knowledge, as the person who was ultimately in charge of evaluating the performance of your employees, at any time sat down with Dennis Fung and Andrea Mazzola to take some remedial action so that they would fill out all the boxes when they prepare a crime scene form?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: I personally did not, no. We had some--
MR. NEUFELD: Okay. Did you direct, as the director of the laboratory, a subordinate of yours to take some remedial action with them?
MS. KESTLER: There's been some further training or updating on the importance of crime scene notes and importance of filling them in even after the fact so that you can remember, because frankly I have a terrible memory. So that's why I do it.
MR. NEUFELD: Was this just a generalized training program for everyone in the laboratory or other remedial action that was taken in direct response to what Andrea Mazzola and Dennis Fung did or did not do in this case?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MS. KESTLER: It was for everyone.
MR. NEUFELD: It had nothing to do with taking remedial action for what Andrea Mazzola and Dennis Fung may have failed to do in this case?
MS. KESTLER: No. Because we've been doing a lot of small corrections, if you will, by the supervisors. So we decided to have updated training, which is an ongoing program we have.
MR. NEUFELD: Now, have you--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Did you review the property reports that were prepared by Dennis Fung in connection with this case?
MS. KESTLER: I can't remember if I reviewed all of his property reports or some of them. We have looked at them off and on for item numbers and I don't remember if I've seen all of them.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, it is required both by your office and also by the Los Angeles Police Department manual that the property reports be filled out accurately and completely; is that correct?
MS. KESTLER: Accurately and completely, depending on certain things, require different completeness. A lot of it is narrative, and so, you know, what does complete mean? It's an interpretative issue.
MR. NEUFELD: Let me show you People's 187 which is actually in evidence. I ask you to take a look at it for a moment.
MR. DARDEN: May I see that?
MR. NEUFELD: Sure.
(Brief pause.)
MR. NEUFELD: 187 of the property reports, the official property reports filled out for items 1 through 14 in this case, which would be items taken at Rockingham, could you take a look at that?
MS. KESTLER: Yes.
MR. NEUFELD: Now--and I believe you said a moment ago that it's required that these reports be filled out accurately and completely; is that right?
MS. KESTLER: Yes.
MR. NEUFELD: Was any remedial action taken with Dennis Fung for his using the incorrect dates repeatedly in this report?
MR. DARDEN: Objection.
MS. KESTLER: Incorrect dates?
MR. NEUFELD: Well--
MR. DARDEN: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: Let me ask you this. Do you see where it says what date these property items were taken into custody?
MS. KESTLER: Oh, I hadn't even noticed that before.
MR. NEUFELD: You see where it says they were taken into custody on June 12th, 1994?
MS. KESTLER: Yes.
MR. NEUFELD: That's not correct, is it?
MS. KESTLER: I don't think so. It's June 13th, right?
MR. NEUFELD: Okay. And, in fact, on page 3--take a look at page 3, would you? There, Dennis Fung wrote that all these items were collected on June 14th, didn't he?
MS. KESTLER: Oh, yes, he did.
MR. NEUFELD: And that's wrong too, correct?
MS. KESTLER: That's--
MR. DARDEN: Objection, your Honor. Foundation.
THE COURT: Sustained.
MR. NEUFELD: It's in evidence.
THE COURT: No. Asking the question, that is in evidence. Whether or not she knows what date Dennis Fung collected certain items in evidence, that hasn't been established, foundation, with this witness.
MR. NEUFELD: Oh, I'm sorry.
MR. NEUFELD: Are you aware that Dennis Fung collected items of evidence at Rockingham on June 13th, 1994?
MS. KESTLER: As I recall, if--that he did the Rockingham scene on the same day that he did Bundy, then that would be June 13th if I recall correctly.
MR. NEUFELD: Okay. So as you look at those official property reports, those dates of June 12th and June 14th are both incorrect; is that right?
MS. KESTLER: That's correct.
MR. NEUFELD: In fact, the property reports, if you look at the front page, don't even say when the items were booked, do they?
MS. KESTLER: That is in a computerized system, so I wouldn't worry that it's on this piece of paper actually. This is becoming an obsolete form as we speak.
MR. NEUFELD: Well, was it an obsolete form when it was filled out in this case?
MS. KESTLER: Yes. The computer system was in place then. Yes. So--
MR. NEUFELD: So there was no requirement--
THE COURT: Wait, wait, wait. Let her finish her answer.
MR. NEUFELD: I'm sorry.
MS. KESTLER: So that would not be a critical issue, as to fill in that date because that date is in the computer the minute the stuff is entered into evidence. So--
MR. NEUFELD: Is there a requirement in the Los Angeles Police Department manual that these written property reports be filled out accurately and completely?
MS. KESTLER: I don't recall if it's stated explicitly that way.
MR. NEUFELD: All right. Let me just show you--
(Brief pause.)
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
THE COURT: Miss Kestler, do you have any doubt that it's appropriate to fill out these forms accurately and completely?
MS. KESTLER: No, I don't.
THE COURT: All right.
MR. NEUFELD: Thank you.
MS. KESTLER: Thank you, your Honor.
MR. NEUFELD: And in fact, on the same form--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Miss Kestler, on the same form, you're supposed to put down for the item seized the quantity of an item seized; is that correct?
MS. KESTLER: Yes, if it's possible.
MR. NEUFELD: Well, Miss Kestler, for the bloodstains that were collected, is there any indication on that property report the number of swatches, number of swatches for any of the bloodstains collected at Rockingham?
MS. KESTLER: No. Just says cloth swatch.
MR. NEUFELD: Singular; is that correct?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. And the quantity boxes were not filled out, were they?
MS. KESTLER: This is a poor copy. I'm assuming no, but a lot of it's obliterated. So--
MR. NEUFELD: Miss Kestler, do you see anywhere on those reports that anybody wrote in the number of swatches collected for any of the bloodstains?
MS. KESTLER: Well, the very first item, there's one cloth swatch.
MR. NEUFELD: Okay.
MS. KESTLER: It's filled in.
MR. NEUFELD: For no. 1?
MS. KESTLER: Yeah.
MR. NEUFELD: That's the item taken from the automobile; is that right?
MS. KESTLER: Yes. That's correct.
(Discussion held off the record between Defense counsel.)
MR. DARDEN: May I look at the report for a moment?
MR. NEUFELD: But for items 4, 5, 6, 7, 8, 12 and 14, isn't it correct that they don't say how many swatches were collected for any of those items?
MR. DARDEN: I'm sorry. Can we have the numbers, please?
MS. KESTLER: 4 and 5--
MR. NEUFELD: 4, 5, 6, 7, 8--
THE COURT: 12 and 14.
MR. NEUFELD: --12 and 14, all the remaining bloodstains?
MS. KESTLER: No. They're all singular.
MR. NEUFELD: It doesn't say anything about the number of swatches, correct?
MS. KESTLER: Well, it doesn't say--in the quantity number, it doesn't put anything, but it says "Cloth swatch." So that indicates singular.
MR. NEUFELD: Now, I'll simply show you also for People's 188 in evidence the property reports which includes the drops on the Bundy walkway.
(Brief pause.)
MR. NEUFELD: Isn't it true that for items 47, 48, 49, 50 and 52, again, under the word "Quantity," the quantity was never filled in as to the number of swatches collected?
MS. KESTLER: Where did you start?
MR. NEUFELD: 47.
MS. KESTLER: That's correct. Again, it says "Cloth swatch" indicating singular.
MR. NEUFELD: My question is, has any remedial action been taken with respect to Dennis Fung's failure to note on the property reports the quantity of swatches collected through each of these bloodstains?
MS. KESTLER: The issue is whether--well, he has two options. He can either--so I want to paraphrase something before I answer your question.
MR. NEUFELD: Well, I would ask, your Honor, that you ask the witness to please respond to the question, which was, was any remedial action taken.
THE COURT: Answer the question, please.
MS. KESTLER: I can't answer it yes or no because he doesn't have to count the swatches.
MR. NEUFELD: That's your position?
MS. KESTLER: Depending on how he does it. So--
MR. NEUFELD: Your position is, he doesn't have to count the swatches?
MS. KESTLER: No. Not--you're misstating what I'm saying. There are two ways to book bloodstains. You can either count the swatches or you can say "A red stain collected on swatches" or on cloth and then you wouldn't count them. So--
MR. NEUFELD: Is there any--I'm sorry.
MS. KESTLER: You could say "Envelope containing" and then it would be one envelope. So--but no, there has been no--there has been no remedial other than training that he clarified exactly what he--how he's doing it.
MR. NEUFELD: Miss Kestler, if a criminalist collects four coins and puts them in a coin envelope for collection, is the individual criminalist supposed to say "Coins" under the word "Quantity, no. 4"?
MS. KESTLER: No, he could say--
MR. NEUFELD: That wouldn't be expected?
THE COURT: Wait, wait, wait.
MS. KESTLER: You could say "Envelope containing four coins." So, you know, there are other ways of writing this.
MR. NEUFELD: Okay. So if in the property report it said either "Envelope containing four coins" or it said "Envelope, coins," and under the quantity "Four," both of those approaches would satisfy the requirements of the LAPD manual; is that correct?
MS. KESTLER: I don't think the manual is explicit, but that would satisfy my expectations, yes.
MR. NEUFELD: In this instance, Miss Kestler, Dennis Fung did not put down under "Quantity" the number of swatches in the envelope; is that correct?
MS. CLARK: Objection. Asked and answered.
THE COURT: Overruled. Do you know the answer to that question?
MS. KESTLER: I believe there's additional swatches. No, he didn't put the number down, that's correct.
MR. NEUFELD: Nor did Dennis Fung write in the "Content" area "Coin envelope containing four swatches, five swatches" or however many swatches there were, did he?
MR. DARDEN: Objection. Asked and answered.
THE COURT: Sustained.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. NEUFELD: Now, as of June 12th, 1994, was it the policy and practice of the Los Angeles Police Department crime laboratory that no evidence shall be distributed to laboratory units for analysis unless either the booking criminalist accompanies the evidence at all times or the evidence has been officially booked at the evidence control unit?
MR. DARDEN: Objection. That's compound.
THE COURT: Sustained.
MR. NEUFELD: Was it the--was it the policy and practice of the Los Angeles Police Department as of June 12th, 1994 that no evidence shall be distributed to anyone other than the booking criminalist--
MR. DARDEN: Still compound.
MR. NEUFELD: --unless the booking--I'm sorry--withdrawn. Was it the policy and practice of the Los Angeles Police Department as of June 12th, 1994, that for items of evidence that have not yet been booked, that the booking criminalist accompany the item to be analyzed at all times?
MS. KESTLER: No.
MR. NEUFELD: Is that one of the procedures that is currently in the manual that has not been altered?
MR. DARDEN: Objection. Irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Do you believe it would be an appropriate measure to take to protect the integrity of items that have not yet been officially booked for the criminalist who collected the item or who will book that item to accompany it at all times?
MR. DARDEN: Irrelevant and argumentative.
THE COURT: Overruled.
MS. KESTLER: It would be a nice thing to do, but in the absence of being able to do that or doing that, it should be documented, and that's all that I would require; who it was given to, what date and when.
MR. NEUFELD: Is it--was it the policy and practice of the Los Angeles Police Department criminalist unit as of June 12th, 1994, that in instances where opinions are rendered as a result of any chemical or physical test and/or procedures performed in the field which cannot be reproduced in the laboratory, that an analyzed evidence report be prepared?
MR. DARDEN: Objection. It's vague.
THE COURT: Overruled.
MS. KESTLER: It is vague and I--but I think I can clarify it, if you would like me to attempt that.
MR. NEUFELD: Please do.
MS. KESTLER: If it's a--our policy is that we don't write analyzed evidence reports for screening tests, presumptive tests for the most part. You can and that's one of the things that's even vague within our own policy, which needs to be clarified and will be in this manual. We will determine whether we're going to write them for every time or not at all.
MR. NEUFELD: Miss Kestler, are you aware of the fact that Dennis Fung claims that in the first week of July of 1994, he went out to the Ford Bronco and he did a presumptive test on one of the smears that he observed on the saddle of the driver's door?
MR. DARDEN: Objection.
THE COURT: Sustained. Sustained. Rephrase the question, please. It's argumentative the way it's formed.
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: May we approach for a moment, your Honor?
THE COURT: The way you phrased it--I'm not saying it's an improper subject to inquire into. The way you phrased the question was argumentative.
MR. NEUFELD: I'm sorry.
MR. NEUFELD: Are you aware that Dennis Fung testified that during the first week in July, he went out to the Ford Bronco and he did a presumptive test on one of the smears that he said he observed on the saddle of the driver's door?
MS. KESTLER: I've been told that was his testimony. I have no personal knowledge of it.
MR. NEUFELD: And are you aware of the fact that when he--that during that first week in July when he went out there, that he did not prepare an analyzed evidence report?
MS. KESTLER: I have no personal knowledge of that.
MR. NEUFELD: Well, Miss Kestler, when we met with you on July 13th of 1995, just last month, didn't you say--
MR. DARDEN: Objection. That's hearsay.
THE COURT: Overruled.
MR. NEUFELD: --didn't you say that it would be the practice and procedure of your laboratory to require that a criminalist prepare a report even for a presumptive test if the person was not going to be able to collect the evidence and bring it back to the laboratory?
MS. KESTLER: No. That's not what I said.
MR. DARDEN: Objection. Still hearsay.
THE COURT: Wait. That is hearsay. It's not a 1235 issue. So the objection sustained.
MR. DARDEN: Motion to strike, your Honor.
THE COURT: Answer stricken.
MR. NEUFELD: Isn't it your policy and procedure as the director of the Los Angeles Police Department crime laboratory that whenever an analytic test is done in the field and the item of evidence cannot be collected and brought back to the laboratory, that an analyzed evidence report be prepared?
MS. KESTLER: No. I don't think I said that even in that meaning. I think what I said was that it should be noted somewhere at least. The question of writing the report is what is up in the air at this point.
MR. NEUFELD: Well, when you say "It should be noted," in other words, it should be noted that the person went out there, that the person conducted the test and what the results were. Is that what you mean?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. And are you aware of the fact that Dennis Fung did not note anywhere that he--that he conducted the test and what the results were?
MR. DARDEN: Objection. Irrelevant as to this witness.
THE COURT: Overruled. Are you aware of that?
MS. KESTLER: Oh, no, I'm not aware whether it was reported or not.
THE COURT: All right. Mr. Neufeld, about 15 minutes.
MR. NEUFELD: For a break?
THE COURT: A break.
MR. NEUFELD: Okay. One moment, your Honor.
(Brief pause.)
MR. NEUFELD: As of June 12th, 1994, was it the policy and procedure of the Los Angeles Police Department criminalist laboratory to take whatever measures are necessary to protect a crime scene?
MS. KESTLER: Whatever is in their power. The crime scene--it would be nice that all criminalists can do what they can do at a crime scene, but the crime scene is already in control of the police officers and it's not really our crime scene. It's the detectives' crime scene.
MR. NEUFELD: Well, hasn't--hasn't a memo been given out to all employees of the Los Angeles Police Department that is the responsibility of the criminalist?
MR. DARDEN: Objection. That's hearsay, your Honor.
THE COURT: Sustained.
MR. NEUFELD: All right. Ask this--what is this next called?
THE COURT: 1318? 1318.
(Deft's 1318 for id = 1974 memo)
MR. DARDEN: May I have a moment to read this document, your Honor?
THE COURT: Certainly.
MR. NEUFELD: Actually, your Honor, it's already part of--maybe we should not mark it separately. The manual itself is already marked as 1017.
THE COURT: How about we stop taking pages out of it?
MR. NEUFELD: Yes. How about it.
THE COURT: Why don't you just show that briefly to Mr. Darden so he knows what you're referring to, counsel.
MR. NEUFELD: All right. Actually it's been brought to my attention there may be need to do this as an separate exhibit, and I will make a separate copy.
THE COURT: All right.
MR. NEUFELD: Okay. Just to save time, may I show it to the witness?
THE COURT: Show it to Mr. Darden first.
MR. NEUFELD: Sure.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Which is a memo from then head of the police department, Darryl Gates.
MS. KESTLER: 1974, not signed.
MR. NEUFELD: Have you seen that memo which is directed to "All personnel of the Los Angeles Police Department"?
MS. KESTLER: Well, it's a notice from 1974. If you give me a moment. It's before I even came to work for the department, and it's not signed by Gates by the way. So I'm not sure it's official,
(Brief pause.)
(Discussion held off the record between the Deputy District Attorney and the witness.)
THE COURT: All right. Do you have any questions regarding this item? I think we need to establish a foundation for it.
MR. NEUFELD: I do. All right.
THE COURT: It appears to be a 21-year old document.
MR. NEUFELD: I understand that.
MR. DARDEN: Could the Court take a look at the document?
THE COURT: I don't need to look at it, not at this point.
MR. NEUFELD: Miss Kestler, from time to time, is the Los Angeles Police Department's policies and procedures updated by memos that emanate from the office of operations or from the--I'm sorry--from the office of operations?
MS. KESTLER: Well, I don't believe that's where it emanates from now because the office of operations, for example, has no functional responsibility over me. So I think it's changed.
MR. NEUFELD: All right. Well, was there a time when procedures that were to be implemented for all personnel would emanate from the office of operations, Los Angeles Police Department?
MR. DARDEN: Objection to the 1974 memo.
THE COURT: It's irrelevant if there was a time.
MR. NEUFELD: Is it the policy of the police department that--the Los Angeles Police Department manual contains procedures and policies that have been enacted, implemented many years ago; isn't that correct?
MS. KESTLER: Yes. Some that are no longer in effect.
MR. NEUFELD: And in fact, they stay in effect until such time as another memo replaces them, is that correct, or determines that they are no longer in effect? Isn't that the policy and procedure of the Los Angeles Police Department?
MR. DARDEN: Objection.
THE COURT: Sustained. Miss Kestler, is this item that you have here, 1318, to your knowledge, is that a current document?
MS. KESTLER: It's unclear to me whether it was even when it's--office of operations notice--
THE COURT: No. No. Miss Kestler, listen to my question.
MS. KESTLER: Okay.
THE COURT: To your knowledge, is that a current in effect policy?
MS. KESTLER: I'm not--I'm not aware of it because it appears to be directed--
THE COURT: No. Wait.
MS. KESTLER: --to somebody else.
THE COURT: Yes or no? To your knowledge, is it; yes or no?
MS. KESTLER: I don't know.
THE COURT: All right. Next question.
MR. NEUFELD: Did you say to this jury a while ago that you reviewed all the contents of this crime scene field guide manual that was prepared for your division of the police department?
MR. DARDEN: Objection. Misstates the testimony.
THE COURT: Sustained.
MR. NEUFELD: Did you say that in 1992, you reviewed the contents of the draft version of the SID division's field unit crime scene manual?
MS. KESTLER: No. I said I began to review it, and in the beginning to review it, I saw many things I wasn't in agreement with and sent it back. So this is not one of the things I got to.
MR. NEUFELD: So you're saying, when you reviewed the manual, you never noticed this document from Darryl Gates in it?
MS. KESTLER: I didn't get that far in the manual. There were a lot of things up front that I didn't--that I thought were missing or unclear or not what I thought was our policy. So I sent it back for review.
MR. NEUFELD: Okay.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Well, would you--would you agree that it is the policy and procedure of the Los Angeles Police Department as of June 12th, 1994, that to whatever extent possible, efforts should be taken not to trample or obliterate evidence?
MS. KESTLER: Yes, I would agree.
MR. NEUFELD: And from what you have learned of this case from the testimony of other witnesses, in your opinion, if Mr. Goldman's body had been dragged over a glove, hat and envelope through the soil and those items were then moved, would that be in conflict with the policy and procedure not to trample or obliterate evidence?
MR. DARDEN: Objection. Lack of foundation.
THE COURT: Sustained.
MR. NEUFELD: Well, let me ask you a hypothetical.
MR. DARDEN: There's an objection to the hypothetical as to this witness.
THE COURT: Overruled.
MR. NEUFELD: Assume for a moment that Mr. Goldman's body had been dragged through the soil and disturbed items of evidence or potential evidence that were lying on the ground, including such items as an envelope, a glove and a hat. Would that constitute trampling or obliterating evidence?
MR. DARDEN: Objection. Assumes facts not in evidence, improper hypothetical.
THE COURT: Sustained.
MR. NEUFELD: Assume that Mr. Goldman's body had been dragged over the ground, and in the course of it, an envelope and a glove--
THE COURT: Approach without the reporter.
MR. NEUFELD: Sure.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Let's wind up in a couple of minutes for our break.
MR. NEUFELD: Sure.
MR. NEUFELD: By the way, was it the policy and procedure of the criminalist laboratory on June 12, 1994 that it would be the appropriate thing for the criminalist to conduct a quick search for perishable evidence before then going back and doing any more thorough search of the scene? Would that be the standard procedure?
MS. KESTLER: You would like to do that. Oftentimes, you can't get into the scene for some reason, but that would be the ideal condition.
MR. NEUFELD: And would you agree that it would be dangerous to--to remove a body over perishable items of evidence such as a glove, hat, envelope before those items were removed from the scene?
MR. DARDEN: Objection. That misstates the evidence.
THE COURT: Overruled.
MR. DARDEN: It's vague.
THE COURT: Overruled.
MS. KESTLER: When you say "Over, removed over," if they don't touch the items and the body is on a plastic sheet provided by the Coroner or something, so you could protect it and you were careful not to touch the items, you could hypothetically carry the body over them. If you mean that they're going to roll the evidence around or something, that would not be an ideal situation. You would prefer not to have that happen.
MR. NEUFELD: Okay. And was it also the policy and procedure in 1994 not to contaminate the scene?
MR. DARDEN: Objection. Vague as to "Contaminate."
THE COURT: Overruled.
MS. KESTLER: Well, again, "Contaminate," that's a question. It's almost impossible not to walk in and out of a scene and bring possibly something into the scene or take something out of the scene, but you'd make all efforts not to contaminate the evidence. I'm not sure what you--
MR. NEUFELD: As the director of the laboratory, would it appropriate--would it be scientifically appropriate to take crime scene evidence from one crime scene and carry it into a second crime scene?
MS. KESTLER: Not--
MR. DARDEN: Objection. Improper hypothetical.
THE COURT: Overruled. It's not a hypothetical. It's a policy, practice or procedures question.
MS. KESTLER: As long as the item of evidence is already contained within something that was provided by the laboratory, let's say a container of some sort, and as long as it isn't allowed to--you know, if you don't take it out and shake it in the air or something, I don't see any problem with that.
MR. NEUFELD: Well, you mean, as long as you don't shake it in the air, it's okay to bring an item from one crime scene to the other? Is that your testimony?
MS. KESTLER: Yes. There's no reason not to do that. I'm trying to think of something. If you're referring to the glove let's say, if you don't take it out and you simply have it in a closed container where it isn't--have any contact with anything else and you look in the container and you don't take the glove out over any other evidence, there's no reason--nothing's going to happen to it. I mean, there's nothing flying around in the air that's going to fall in there.
MR. NEUFELD: Well, what about other hair and trace evidence that may be in the area where all these police officers are moving around when the bag is opened?
MS. KESTLER: If that--
MR. DARDEN: That's vague.
THE COURT: Overruled.
MR. NEUFELD: Isn't there a possibility that other hair or trace evidence can land on an object if it is brought into the crime scene from another crime scene and it is not in a closed package at all times?
MR. DARDEN: Calls for speculation.
THE COURT: Overruled.
MS. KESTLER: It's a remote possibility. If that was true, you'd have to really be generating some turmoil in the area. If--otherwise, you'd have hair and fibers all over everything all the time. We'd never get any crime scene evidence that was of any value.
MR. NEUFELD: Exactly, Miss Kestler. And isn't that one reason why you don't want to bring items from one crime scene to another crime scene, to risk that kind of thing happening?
MR. DARDEN: That's argumentative.
THE COURT: Sustained.
MR. NEUFELD: Could we take a break right now?
THE COURT: Yes. All right. Ladies and gentlemen, we're going to take our mid-afternoon recess. Please remember all my admonitions to you. We'll take about 15. All right.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Deputy Magnera, let's have the jury, please. I'm sorry.
MR. DARDEN: Before we do that, a couple of issues. First of all, as the Court's well aware, Fung and Yamauchi and Greg Matheson, they've all testified to much of what we've heard already. At this time, we'd like to make an objection pursuant to 352. A lot of what we're hearing this afternoon is cumulative. We've heard it before. It's not in dispute. We've reached a point in testimony where we object to having to hear this all over again, Judge. I mean unless it's something new, why put the jury through this again? They're bored. They're bored. I'm board. It's obvious you're bored and restless by it.
THE COURT: No, I'm not bored. I've got three pages of notes today. I'm not bored at all.
MR. COCHRAN: We're glad to hear that.
THE COURT: I'm tired, but I'm not bored.
MR. DARDEN: Okay. And a second issue, if I may.
THE COURT: Yes.
MR. DARDEN: As I understand it, the Defense has one witness for tomorrow, Mr. Aguilar, the fingerprint expert. As the Court pointed out this morning, this jury's been sequestered six or seven months. They're here. They've indicated to us there are other witnesses they want to call. Let's call them tomorrow.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Let the record reflect we've been rejoined by all the members of our jury panel. Miss Kestler, would you resume the witness stand, please. All right. Miss Kestler is--Michele Kestler is on the witness stand undergoing direct examination by Mr. Neufeld. And, Mr. Neufeld, you may complete your direct examination.
MR. NEUFELD: Thank you.
MR. NEUFELD: Miss Kestler, are you familiar with what has already been admitted into evidence as People's exhibit 163-H, the sub K, which would be the gray analyzed evidence envelopes which are used for items that are to be refrigerated? Are you familiar with these?
MS. KESTLER: I'm somewhat familiar, yes.
MR. NEUFELD: Well, I mean, when items of evidence are brought over to your laboratory for analysis, they may be serological items, they may be items for urine analysis, whatever, they would frequently be contained in those very envelopes; would they not?
MS. KESTLER: Yes.
MR. NEUFELD: That's the standard Los Angeles Police Department issued; is it not?
MS. KESTLER: I just want to make sure this is the most recent one. I believe it is, yes.
MR. NEUFELD: Okay. And in fact, these envelopes and--are used to again maintain the integrity or the security of the items that are contained within. Isn't that one of the purposes?
MS. KESTLER: Yes.
MR. NEUFELD: And in fact, isn't there special analyzed evidence seals, sealing tape that is tamper resistant that is to be used on these envelopes to seal the contents of them?
MS. KESTLER: Yes. Assuming they're not within another container. In other words, if you book this alone, then you use the tape on it, yes.
THE COURT: Indicating one envelope by itself?
MS. KESTLER: Yeah. In other words, if you're booking one vial of blood in this envelope by itself into evidence, this is my final packaging, then the seals go on this envelope.
MR. NEUFELD: It's your position, ma'am, that no seal is required on that envelope if the envelope is going to be put in a box with other items?
MS. KESTLER: That's correct, because in that, it's closed and then the box is sealed. So it's only the outside container, the most outer container that is required to be sealed.
MR. NEUFELD: Umm--
MS. KESTLER: Most outer, outermost.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: May I put this up on the elmo?
THE COURT: Sure.
MR. NEUFELD: Can you focus in on the--can you focus on the two boxes? Can you blow those up a bit?
MR. NEUFELD: Okay. Do you see where it has instructions for the officer requesting the withdrawal of blood?
MS. KESTLER: I can read the large print. I cannot read the little print.
MR. NEUFELD: Okay. Perhaps I can read it to you.
MR. DARDEN: Your Honor, I'll object showing this to this witness if those are instructions for the officer, and this witness is not an officer.
THE COURT: Overruled. Not at this point. What's the next question?
MR. NEUFELD: Do you see where it says on the instructions for this gray envelope, "Item no. 4, when the affidavit is completed, sign below as a witnessing officer and seal the vial in this envelope using completed sealed evidence labels"? Do you see that?
MS. KESTLER: I see that, yes.
MR. NEUFELD: Okay. And--
THE COURT: Can you read that, Miss Kestler, from that?
MS. KESTLER: I can see--I think that's what it says, yes.
MR. NEUFELD: All right. And that use of sealed evidence labels, in particular, using the tamper resistant analyzed labels is to be done to maintain the integrity of the vial that is inside the envelope; is it not?
MS. KESTLER: Yes. Again, that's assuming you're booking that envelope by itself.
MR. NEUFELD: Is there any procedure in writing that you can quote to us which says that that specific instruction on that envelope does not apply to this envelope if the envelope is going to a box with other items?
MS. KESTLER: I don't know a procedure. I just know that that's property's procedure and that--because you have to seal the external container with--in other words, I wouldn't even use this envelope inside another package. I would use a plain brown envelope because you put a gray label on the outside of your box and seal the entire box because all the contents has to be sealed and protected, not the individual items inside. This is for--primarily deuces, arrestees or arrested for drunk driving cases where all you book is that envelope with one vial of blood and that's the entire con--that's the entire evidence in the case.
MR. NEUFELD: Was this same envelope used also to book blood in this case?
MS. KESTLER: I believe it was, but--
MR. NEUFELD: And--I'm sorry.
MS. KESTLER: I'm not sure which blood and whose blood and how it was booked and final packaging.
MR. NEUFELD: Isn't it the standard procedure that for items that are to be refrigerated, which in this case would be a reference vial of fresh blood as opposed to a dry blood stain, that it would be placed in one of these gray envelopes?
MS. KESTLER: If that was the only piece of refrigerated evidence. If it all fit in one envelope, yes, counsel. If not, you would use a box with a gray tag or a gray envelope taped to the outside.
MR. NEUFELD: I'd like you to assume for the purpose of this hypothetical that a reference vial of Mr. Simpson's blood was collected on June 13th of 1994 and was placed in a gray envelope very much identical to the one that is up on the screen.
MS. KESTLER: Okay.
MR. NEUFELD: In that situation, would it not be required that the tamper resistant analyzed evidence seal be placed on the outside of that envelope for security purposes?
MR. DARDEN: Objection. It's vague and an improper hypothetical.
THE COURT: Overruled.
MS. KESTLER: If that envelope--again, as I said before, if that envelope was booked by itself by whoever booked it, then that booking individual would put the seal on the envelope.
MR. NEUFELD: To your knowledge of this case and as the person who managed it ultimately, was any other reference sample of whole blood taken into custody on June 13th, 1994?
MR. DARDEN: Objection. That calls for hearsay, lack of foundation.
THE COURT: Sustained. Assumes facts not in evidence in the way you stated the question as well.
MR. NEUFELD: All right. Do you have any knowledge at all that aside from Mr. Simpson's reference sample of any other samples of fresh blood or whole blood, liquid blood being taken into custody on June 13th, 1994?
MR. DARDEN: Objection. Hearsay.
THE COURT: Overruled.
MR. DARDEN: Speculation, no foundation.
THE COURT: Overruled. To your knowledge, are you aware of any other blood sample.
MS. KESTLER: No, not to my knowledge.
MR. NEUFELD: And if that blood sample was the only sample placed in the gray envelope and there was only that one gray envelope on June 13th, wouldn't it be the appropriate procedure and practice of the Los Angeles Police Department to place the tamper resistant analyzed evidence seal on that envelope?
MS. KESTLER: No one--
MR. DARDEN: Objection. This is vague, your Honor.
THE COURT: Overruled.
MS. KESTLER: It's okay. No one, no officer that I know of or have ever seen or no one in my experience ever puts the seal on it until they complete their property report because they have to look at the vial. They then put their seal on before giving it over to the property custodian.
MR. NEUFELD: You say they have to look at the vial. You mean they have to open up to make sure there's a vial inside?
MS. KESTLER: They have to look, physically look at the vial to see what the vial says so they can transmit that information onto their property report.
MR. NEUFELD: And you're saying that--isn't it the practice of the Los Angeles Police Department criminalistics laboratory to from time to time break open a sealed evidence seal for one purpose or another to analyze evidence or to examine evidence?
MS. KESTLER: If it was sealed, yes.
MR. NEUFELD: Okay. So there is nothing to prevent a criminalist from opening a sealed envelope once it is sealed for the purposes of looking at what is on the vial and noting it on a property report, is there?
MR. DARDEN: Objection. This is irrelevant.
THE COURT: Sustained.
MR. NEUFELD: In fact, to your knowledge, at some point in time, were sealed tape, tamper resistant sealed tape placed on the envelope which had Mr. Simpson's blood in it?
MR. DARDEN: That's relevant. Calls for hearsay.
THE COURT: Overruled. To your knowledge, was that done?
MS. KESTLER: I believe so. I don't recall if it was booked separately or in another container. I don't recall.
MR. NEUFELD: Can we put up this picture?
MR. DARDEN: May I see the picture first?
MR. NEUFELD: Sure. It's in evidence.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. DARDEN: There's an objection as to this witness.
THE COURT: Which photograph are you showing?
MR. NEUFELD: Exhibit 183 in evidence, Prosecution exhibit.
THE COURT: Which photo? What is it?
MR. NEUFELD: It's a photo of the gray envelope, contained the reference sample in this case.
THE COURT: Proceed. Proceed.
(Brief pause.)
THE COURT: Mr. Harris, can we zoom in on any part of this?
MR. HARRIS: That's laser, your Honor.
THE COURT: All right.
MR. NEUFELD: Well, you want to do it with this one instead?
MR. DARDEN: There's another photo.
MR. NEUFELD: We have a photo. We can put it up as a photo.
MR. DARDEN: Can I look at the photo?
MR. NEUFELD: This is the same photo. It's just on laser.
(Brief pause.)
MR. NEUFELD: Now, Miss Kestler, what I'm showing you now is a photograph of the actual gray envelope that was used to contain Mr. Simpson's reference sample when the blood was drawn from him on June 13th of 1994. Can you see it?
MS. KESTLER: Yes.
MR. NEUFELD: All right.
MS. KESTLER: Barely.
MR. NEUFELD: And as you can see, at least when this photograph was taken, you can see the remnants of the sealing tape on the upper portion of the envelope; is that correct?
MS. KESTLER: I presume it's a sealing tape, yes.
MR. NEUFELD: Okay. So at some point in time, sealing tape was placed on the envelope. Would that be a fair statement?
MS. KESTLER: That's correct.
MR. NEUFELD: All right. Now, however, as you can see on the affidavit portion, on the instructions portion for the officer requesting withdrawal, even on this envelope, the one actually used in this case, it states that, "When the affidavit is completed, sign below it as a witnessing officer and seal the vial in the envelope using completed sealed evidence labels." Is that the instruction on that envelope which is up on the screen?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. And are you aware, no. 1, that there's been no testimony in this case by Detective Vannatter who was present at that time when the blood was drawn--
THE COURT: Sustained. Sustained.
MR. NEUFELD: Okay. Well, would it be an appropriate police procedure for no sealing tape to be placed on that envelope either by Detective Vannatter or Dennis Fung until several days after the evidence is collected?
MR. DARDEN: Objection. Misstates the evidence. I object to this witness testifying to police procedures.
THE COURT: Sustained.
MR. NEUFELD: MR. NEUFELD: Would it an appropriate procedure of the Scientific Investigation Division of the Los Angeles Police Department not to put sealing tape on this envelope for several days after it's collected?
MR. DARDEN: Misstates the testimony.
THE COURT: It's vague. Rephrase the question.
MR. NEUFELD: Okay.
THE COURT: Do you know the time period?
MR. NEUFELD: Yes.
THE COURT: Rephrase the question.
MR. NEUFELD: Would it an appropriate procedure of the Scientific Investigation Division for neither the police officer who instructed the nurse to collect this blood sample or for the criminalist who initially received this blood sample to put any sealing tape on that envelope for the first 48 hours after it has been collected?
MS. KESTLER: I don't know what the time frame has to do with it. It would not necessary--it would not be unusual and I believe it is the practice of the Los Angeles Police Department officers and personnel of the criminalistics department not to seal evidence with the evidence tape, and I believe it's in the property manual, but I'm not positive--I'd have to look--to seal the evidence until you book it because, again, there's no reason to. It's in your custody.
MR. NEUFELD: What you're saying then is that the instruction that's included in paragraph 4 of the same envelope that was used in this case--
THE COURT: All right. Counsel--counsel, we've asked this question now in eight different forms.
MR. NEUFELD: By the way, you know Detective Vannatter; do you not?
MS. KESTLER: Yes.
MR. NEUFELD: He's a friend of yours?
MS. KESTLER: When you say "Friend," I know him on the department as, you know, many people on the department are my friends.
MR. NEUFELD: Well, you've known him for many years?
MS. KESTLER: Yeah.
MR. NEUFELD: And you're on a first name basis?
MS. KESTLER: Yeah.
MR. NEUFELD: Okay. And by the way, your husband also works for the Los Angeles Police Department, doesn't he?
MS. KESTLER: Yes, he does.
MR. DARDEN: Objection. Irrelevant.
THE COURT: Overruled.
MR. NEUFELD: And he works in robbery-homicide; isn't that correct?
MS. KESTLER: He works in the robbery-homicide division, robbery, bank robbery section.
MR. NEUFELD: Right. And robbery-homicide is the same division that Detective Vannatter and Detective Lange are in?
MS. KESTLER: Yes.
MR. NEUFELD: And all their offices are on the third floor over at Parker?
MS. KESTLER: Yes.
MR. NEUFELD: As the person who was ultimately managing this case as of at that time assistant director of the laboratory, were you aware that Dennis Fung and Andrea Mazzola went out to collect evidence from the Bronco on the 14th of June, 1994?
MR. DARDEN: Objection. Misstates the testimony.
THE COURT: Overruled.
MS. KESTLER: I'm not clear--when was I aware of it? I was aware of it after they did it.
MR. NEUFELD: Yeah.
MS. KESTLER: Oh, okay.
MR. NEUFELD: And would it be the standard policy and practice of the Los Angeles Police Department that the criminalists are to collect any and all potentially relevant evidence each time they conduct a search?
MS. KESTLER: They're to make a judgment as to what they feel is relevant, yes, and then collect it.
MR. NEUFELD: Fine. But once they make the judgment that it's relevant, they're to collect everything that they conclude is potentially relevant, correct?
MS. KESTLER: Well, everything that's relevant, but not necessarily all of it. If you have a huge pool of blood, you're not going to take all of it.
MR. NEUFELD: Right. But if you have a series of small stains as opposed to a large pool of blood, then it would be appropriate to take all of it, correct?
MS. KESTLER: No. If you have--not necessarily. Not necessarily, no. But if you have a spatter pattern that appears to all be one pattern, you have to make these judgment calls. You're not going to necessarily take all of the blood from a pattern that you believe is all from one individual. You're going to take a representative sample. The same with a trail of blood. If it appears to all be from one individual and it goes for miles, you're not going to necessarily pick up every little stain along the trial.
MR. NEUFELD: I'm not talking about things for miles. I'm talking about things in a Bronco, okay, Miss Kestler, and the question is this.
MR. DARDEN: This is argumentative.
THE COURT: It is. It is. The way the question was phrased, it wasn't confined to the Bronco. Restate the question.
MR. NEUFELD: I'm asking about the Bronco, and my question is this. Was it the standard practice and procedure at the Los Angeles Police Department crime laboratory on June 12th, 1994 that as to any particular stain that they collect--I'm not talking about huge pools of blood. I'm talking about a confined stain--that it was the instruction and procedure at your laboratory that they were to collect as much of a stain as possible if it was going to be used for DNA analysis?
MS. KESTLER: Again, it depends on the size of the stain. You try to collect an adequate amount, and there--we've described that over the years in different amounts. When DNA first started, we said we'd like a quarter size sample. We're down now to a nickel size sample. So if that's what you're asking.
MR. NEUFELD: What's next in line?
THE COURT: 1319.
MR. NEUFELD: I'll show you 1319.
(Deft's 1319 for id = document)
MR. DARDEN: There's been a previous 352 objection.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
MR. NEUFELD: Judge, unlike the other documents in the guide, when I received--this was discovered, this is one of the items--in fact, this was--they noted on the bottom of it that it's a handout given to the criminalist, and all I'm going to ask about is one particular sentence.
THE COURT: Keep your voice down.
MR. NEUFELD: One particular sentence, instruction no. 14. That's it.
THE COURT: All right. What was the previous objection?
MR. DARDEN: First of all, I asked him if he's going into the whole thing. I asked him that, and he said yes. So if I can have a moment to look at item 14.
MR. NEUFELD: Item 14.
THE COURT: You need to ask some foundational questions, ask if she knows what it is and if she agrees with this policy.
MR. NEUFELD: This is something SID handed out to their criminalists.
THE COURT: I'm just saying you need to lay a foundation for it.
MR. NEUFELD: Okay. I will.
THE COURT: That's all. All right.
MR. DARDEN: Can I ask one question? What was counsel's representation as to the--
MR. NEUFELD: Item 14.
MR. DARDEN: As to the--
MR. NEUFELD: That was on there before I received it. That was written on the item before I received it as discovery.
MR. DARDEN: Are we going to go into the issue at all, the authentication of this?
THE COURT: No. Just item 14.
MR. DARDEN: No objection to item 14.
(The following proceedings were held in open court:)
MR. DARDEN: There's no 352 objection as to that item.
THE COURT: All right. We need to lay a contextual foundation so they understand what this is.
MR. NEUFELD: All right.
MR. NEUFELD: I show what has been marked--
THE COURT: 1319.
MR. NEUFELD: --1319, a three-page document entitled "Collection and preservation of body fluids" and ask you to take a look at it.
MS. KESTLER: Is there a specific section you want me to read?
MR. NEUFELD: Yes. But first, what I would like you to know is, is this a document that was given as a handout to the criminalists as opposed to something that would be part of the manual?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. Now, call your attention to--
THE COURT: Page 2, item 14.
MR. NEUFELD: --page 2, item 14--
MR. NEUFELD: Thank you, your Honor.
MR. DARDEN: There's still a foundational objection as to time, your Honor.
THE COURT: Is this a current or contemporary document in your lab?
MS. KESTLER: I'm not sure if this has been modified. I do know that this is a handout and then there is some narrative training that goes with this.
THE COURT: All right. Would you look at item 14 on page 2 and tell me if that is a current policy.
MS. KESTLER: That's basically a current policy. Again--
THE COURT: All right. No. No. Just--
MS. KESTLER: --depending on size. I'm sorry, your Honor.
THE COURT: All right.
MR. NEUFELD: In the handout that was given to the criminalists who were going to be involved in the collection and preservation of body fluid evidence, doesn't it say in no. 14, "Collect as much of the stain as possible, especially if RFLP, DNA analysis may be necessary as a future analysis"? Is that the instruction that was given to the criminalists in this handout?
MS. KESTLER: That's what the handout says, yes.
MR. NEUFELD: Thank you.
THE COURT: Mr. Neufeld, perhaps just for the jury's sake, you should yellow highlight that particular portion on page 2 so the jury, when they see it, will know what it was we were looking at. No. Just put it--
MR. NEUFELD: We'll do that after. Okay. Thank you, your Honor.
THE COURT: Because when they get this a week or so from now to look at--
MR. COCHRAN: Two or three days, your Honor.
MR. NEUFELD: By the way, is it one of the responsibilities of the SID unit to maintain the integrity of those items of evidence for which there will be some kind of--some biological analysis? Is that one of the responsibilities of your unit?
MS. KESTLER: I'm not clear. Could you be more specific?
MR. NEUFELD: Well, if there are items of evidence that are going to have to be analyzed let's say for serological analysis, for DNA analysis, would it be the responsibility of the criminalists at SID to maintain the integrity of those items so as not to let them get contaminated or compromised or things like that have happen to them?
MS. KESTLER: If they were actually responsible for handling them. There's many items of biological evidence we never handle.
MR. NEUFELD: All right. Now, in this particular case, you went out to--you learned--I'm sorry--that Dennis Fung and Andrea Mazzola went out to the Bronco to collect bloodstains on the 14th of June. You learned that sometime after they came back; is that right?
MS. KESTLER: I believe so, yes.
MR. NEUFELD: Would it be a couple days later that you learned that?
MS. KESTLER: I don't recall when it was.
MR. NEUFELD: All right. But it was sometime shortly thereafter?
MS. KESTLER: Probably, yes.
MR. NEUFELD: All right. And you went out to that Bronco on August 26th, 1994; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And you collected evidence on that day?
MS. KESTLER: Yes.
MR. NEUFELD: And when you went out there on the 26th and you looked inside the Bronco, didn't you explain at that time--
MR. DARDEN: Objection. Hearsay.
THE COURT: Overruled.
MR. NEUFELD: --didn't you explain words to the effect that, "Oh, my goodness, look at all the bloodstain that is on this console," something like that?
MS. KESTLER: I don't believe I exclaimed it. I did say that I was--I said, "Oh, there's still blood here," yes. I was surprised.
MR. NEUFELD: And you learned, did you not, that between June 14th, 1994 and August 26th that that Bronco had been gone into with people who did not have authorization to do so?
MR. DARDEN: Objection. Facts not in evidence.
THE COURT: Overruled.
MR. NEUFELD: You learned that, didn't you?
MS. KESTLER: Eventually. I'm not sure when.
MR. NEUFELD: Okay. And you learned, did you not, that in fact, another member of the Los Angeles Police Department, Detective Muldorfer, conducted investigation into people who had unauthorized access to that vehicle? Did you learn that too?
MR. DARDEN: This is irrelevant.
THE COURT: Sustained. Irrelevant. The jury knows about that.
MS. KESTLER: I don't think so.
MR. NEUFELD: Well, as the director of this laboratory, did you conduct any investigation into whether the evidence in that Bronco was in any way compromised, the biological evidence was in any way compromised during that two-month hiatus between June 14th and August 26th when you went into the Bronco?
MR. DARDEN: 352 objection, your Honor.
THE COURT: Overruled.
MS. KESTLER: I'm not sure what you mean by "Conduct an investigation."
MR. NEUFELD: Well, would it be a matter of concern to you as the person who's head of the laboratory that would conduct any kind of serological analysis on biological samples such as bloodstains, that the Bronco had not been kept in a secure state from June 14th--oh, I'm sorry--or from some time in the middle of June of 1994 until some time in August, 1994?
MR. DARDEN: Objection.
MR. NEUFELD: Would that be a concern to you?
MR. DARDEN: Objection. Misstates the testimony. It's irrelevant.
THE COURT: Overruled.
MS. KESTLER: Uh, it would be a concern if there was a possibility that other than someone getting in and looking in it or something, if they would have been bleeding in the vehicle or something.
MR. NEUFELD: Okay. Did you undertake any investigation as the director of the SID--I'm sorry--of the SID criminalist laboratory to see whether or not anyone with biological fluids entered that Bronco during that two-month period?
MS. KESTLER: Well, first of all, it wouldn't be my place to do the investigation. I did ask if the individual that apparently got in the car bled in the car for some reason, and I was told no.
MR. NEUFELD: How do you know that there was only one person who entered that Bronco during that two-month period?
MR. DARDEN: Objection. Argumentative.
THE COURT: Sustained.
MR. NEUFELD: Do you know how many people entered that Bronco during that two-month period?
MR. DARDEN: Objection. Calls for speculation.
THE COURT: Overruled. Do you know?
MS. KESTLER: No.
MR. NEUFELD: What efforts did you undertake as the director of the criminalist laboratory responsible for the analysis of biological evidence to see how many people were in that Bronco during that period and what, if anything, they did while they were there?
MR. DARDEN: Objection. Asked and answered, Judge.
THE COURT: Sustained.
MR. NEUFELD: Now, I'd like to ask you a few questions about the socks in this case, Miss Kestler. Within a week to 10 days after the deaths of Nicole Brown Simpson and Ronald Goldman, Dr. Michael Baden and Dr. Barbara Wolf visited your laboratory; did they not?
MS. KESTLER: Yes.
MR. NEUFELD: And they came there to observe items that had been collected and were being stored at your laboratory in connection with this case; is that right?
MS. KESTLER: They were being stored in the property section, yes.
MR. NEUFELD: But when they came on that occasion--do you remember what date it was by the way?
MS. KESTLER: I have my notes.
MR. NEUFELD: Why don't you take a look.
MS. KESTLER: Thank you. (The witness complies.) It's June 24th.
MR. NEUFELD: Okay. When they came on June 24th of 1994, you refused to allow those experts to physically examine the items; did you not?
MS. KESTLER: Physically examine them?
MR. NEUFELD: Yes.
MS. KESTLER: Could you define "Physically examine"?
MR. NEUFELD: Touch with gloves on or look at under a microscope.
MS. KESTLER: No. They could have looked at them under a microscope if they'd asked for a microscope. They could not handle the--physically touch the items. We would have provided a scope and moved the items around for them.
MR. NEUFELD: They were not allowed to handle any of the items even if they used appropriate protection?
MS. KESTLER: Right. Because we had not looked for trace evidence at that point. It was very early on in the case.
MR. NEUFELD: Well, didn't you also at that point have a prohibition as to Defense experts being present when your criminalists initially examined the items of evidence in this case?
MS. KESTLER: We have a policy in the laboratory that we don't allow Defense experts into the laboratory. That's correct.
MR. NEUFELD: Now, on June 29th, approximately two weeks after this case began, you participated in a review of the evidence then collected to see which items would be--would be subjected to different types of scientific tests; did you not?
MS. KESTLER: The purpose of that review was not for that reason. We did an inventory essentially; and at the time, we made some notes as to what we might do with things. But the main purpose of that was not to decide what to do with the items. However, that was a secondary reason.
MR. NEUFELD: One moment.
MS. KESTLER: So it was a reason, yes.
MR. NEUFELD: I'm sorry. You said it was a reason.
MS. KESTLER: Yes, it was one of the reasons. But the primary reason was to do an inventory.
MR. NEUFELD: And I believe you said earlier that you started examining that evidence sometime around 2:30 in the afternoon and the examination continued until around 9:00, 9:30 in the evening; is that right?
MR. DARDEN: Objection. Misstates the testimony.
THE COURT: Sustained. Examination. Examination versus inventory.
MR. NEUFELD: Oh, I'm sorry. Okay. And didn't you in fact--well, that you began looking at those items at about 2:30 in the afternoon and you continued, the three of you, to look at those items until 9:00 or 9:30 in the evening?
MS. KESTLER: I believe that's--I know we started about 2:30 in the afternoon. I can't recall what time we quit.
MR. NEUFELD: And the three people who were doing this were yourself, your now assistant director--is that Mr. Matheson?
MS. KESTLER: Yes, that's correct.
MR. NEUFELD: And Collin Yamauchi?
MS. KESTLER: That's correct.
MR. NEUFELD: Okay. And one of the items of evidence that you examined--I am sorry--one of the items of evidence that you observed and reviewed on that particular afternoon or evening was item 13, a pair of socks recovered from Mr. Simpson's home?
MS. KESTLER: That's correct.
MR. NEUFELD: And after you examined that item of evidence as well as the other items of evidence, the three of you prepared a report; is that correct?
MS. KESTLER: That's correct. But we didn't--I wish you wouldn't use the term "Examine" because we really didn't examine them. We did a cursory look to see what they--
MR. NEUFELD: Well, you analyzed then?
MS. KESTLER: No. We decided they were socks and that they were dark blue or black, and I can't even recall. We didn't really analyze them at all.
MR. NEUFELD: Didn't you entitle the report that you prepared that evening, "Summary of analyzed evidence by analysis performed"?
MR. DARDEN: Objection. That's hearsay.
THE COURT: Overruled.
MS. KESTLER: Uh, that's not what I would have entitled it. Is that on the data print-out, because I have the handwritten one that has no title on it at all.
MR. NEUFELD: Was the handwritten report eventually put into typed form?
MS. KESTLER: Yes.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: I ask this be marked 1320. And what I will do, your Honor, since the only copy I have has certain markings on it, I will not publish it to the jury and I will provide a clean copy.
THE COURT: All right. Tomorrow morning.
MR. DARDEN: There's a foundational objection.
THE COURT: All right. She has the handwritten, you've got a typewritten. Foundation. Ask her to compare it, see if they're the same document.
(Deft's 1320 for id = document)
MR. NEUFELD: I ask you to look at this exhibit. And first of all--
MS. KESTLER: Now you know why I don't have this one because I can't read it even with my glasses on.
MR. NEUFELD: Miss Kestler, before--you can finish looking at that--didn't you personally provide us with that typed report at a hearing in this case?
MS. KESTLER: Yeah. I brought it.
MR. NEUFELD: Over the summer?
MS. KESTLER: Yes. I brought it to court.
MR. NEUFELD: That typed version?
MS. KESTLER: Yes, that had been prepared by our office.
MR. NEUFELD: You presented that to us?
MS. KESTLER: Yes.
MR. NEUFELD: Okay.
MS. KESTLER: It's just that this one is sorted differently and I'm not sure it's the one I brought. It appears to be.
MR. NEUFELD: It appears to be the same?
MS. KESTLER: Uh-huh.
MR. NEUFELD: Thank you.
MS. KESTLER: Yes.
MR. NEUFELD: And isn't that typed report that your laboratory prepared entitled, "O.J. Simpson, summary of analyzed evidence by analysis performed"? Isn't that what it's entitled?
MS. KESTLER: That's what it states, but that's not correct.
MR. NEUFELD: So it's your testimony that your own laboratory put the wrong title on the document that you brought to court and introduced at that hearing; is that correct?
MS. KESTLER: It's not entirely wrong, but that was not the main purpose of that document. There are--some analysis had been performed.
MR. NEUFELD: Okay.
MS. KESTLER: None on the socks.
MR. NEUFELD: You have an independent recollection of that; is that correct, ma'am?
MS. KESTLER: Yes, I do.
MR. NEUFELD: All right. And the--in this report, comments were written by the three of you about these different items that were looked at during that date of June 29th, 1994; isn't that correct?
MS. KESTLER: Yes, on some.
MR. NEUFELD: All right. Well, was a comment written next to item 13, the socks, that were taken from Mr. Simpson's home? I'm not asking you what the comment was. I'm asking you, was a comment written in?
MS. KESTLER: Yes.
MR. NEUFELD: And is the comment that was written in on the typed report--well, you don't have the typed report. Let's just deal with the handwritten report. Is the comment that was written by you three collectively on the handwritten report, "Dress socks"--
MR. DARDEN: Objection. Hearsay, lack of foundation.
THE COURT: Overruled.
MR. NEUFELD: Is the comment that you wrote on the handwritten report--
MR. DARDEN: Assumes facts not in evidence, she wrote this report.
THE COURT: Sustained.
MR. NEUFELD: Is the comment that was put on the handwritten report that evening--
MR. DARDEN: Same objection.
MR. NEUFELD: --on June--
THE COURT: Sustained as to the authorship. Ask a foundational question.
MR. NEUFELD: I'm sorry, your Honor. I couldn't hear you.
THE COURT: Sustained as to the authorship. Ask a foundational question, please.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: On that evening, when you were there observing these items of evidence, which of the three of you actually wrote down the notes on the handwritten report that you have in front of you?
MS. KESTLER: Most of these are written by Mr. Matheson, appears, most of it.
MR. NEUFELD: All right. And are the comments next to item 13, were those written by Mr. Matheson?
MS. KESTLER: I'm not sure if that's all his writing or not.
MR. NEUFELD: So if it's not Mr. Matheson's handwriting, it's either yours or Collin Yamauchi's; is that correct?
MS. KESTLER: Yes.
MR. NEUFELD: But it's one of the three of you who was there observing the items?
MS. KESTLER: Yes.
MR. NEUFELD: And the comments that were written were written contemporaneous to the observations of these items; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: As to item 13--
MR. DARDEN: Still objection. Foundational issue.
THE COURT: Does this accurately reflect your observations?
MS. KESTLER: Yes.
THE COURT: The notation as to item 13?
MS. KESTLER: Yes.
MR. NEUFELD: Okay. And is the comment that was written next to item 13, when the socks were looked at by the three of you, quote, "Dress socks, blood search, none obvious"? Is that what was written?
MS. KESTLER: That's what's written. Do you want--
MR. NEUFELD: And would you agree--
MR. DARDEN: I'm sorry, your Honor. The witness was not finished with her answer.
THE COURT: All right. Have you finished your answer?
MS. KESTLER: Oh, that's what's written. That's not--depends how you read it what it means though. So--
MR. NEUFELD: Well, does--
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Isn't it a fact that each of the items that was looked at on that day was removed from the packaging it was in and laid out on a piece of laboratory paper?
MS. KESTLER: Uh, I believe everything was taken out. I don't know whether they were taken completely out and laid out--you know, they were taken out, looked at and put back. They were not thoroughly examined by turning them over and those sorts of things.
MR. NEUFELD: Are you aware that Collin Yamauchi testified that each and every item was taken out and laid on a piece of laboratory paper?
MR. DARDEN: Objection. Hearsay.
THE COURT: Sustained.
MR. NEUFELD: How many years experience do you have as a criminalist?
MS. KESTLER: Well, do you mean prior to being a lab director or all my years?
MR. NEUFELD: Yes.
MR. DARDEN: Objection. Vague.
MS. KESTLER: Well, I've been a--I'm still a criminalist because--
MR. NEUFELD: How many years have you been a criminalist?
MS. KESTLER: Since 1976.
MR. NEUFELD: How many years has Mr. Matheson been a criminalist approximately?
MS. KESTLER: I don't recall when he started. Probably about `78.
MR. NEUFELD: So between you, you have perhaps 30 years of experience?
MS. KESTLER: Perhaps, yeah.
MR. NEUFELD: Mr. Yamauchi, how many years has he been a criminalist?
MS. KESTLER: I can't recall the exact year he started. I believe about three or four years.
MR. NEUFELD: Okay. So between the three of you, you have almost 35 years' experience?
MS. KESTLER: That's correct.
MR. NEUFELD: And based on your experience, would you not know that if there is a bloodstain on black socks, one has to look somewhat carefully at those socks because of the color of them?
MS. KESTLER: Yes. I would expect to have to look very, very carefully.
MR. NEUFELD: And you knew that based on your experience?
MS. KESTLER: Yes.
MR. NEUFELD: And yet, you say that when the socks were observed on that night, the comment you put on the report was, "Blood search, none obvious"; is that correct?
MR. DARDEN: Objection. This is argumentative.
THE COURT: Overruled.
MR. NEUFELD: Is that correct?
MS. KESTLER: That's what we wrote, but then--can I explain what it means?
MR. NEUFELD: That's what I'm asking. Is that what you--
THE COURT: Wait, wait, wait.
MR. NEUFELD: Your Honor, I would ask that the rest of the answer be stricken as nonresponsive. I simply asked whether the comment--
THE COURT: No. No. Wait, wait, wait. All she said was, "May I explain the answer?" That's all she said. But you interrupted her and talked over it. You're driving the court reporter mad. That's the only thing I would like you to do. That's all she said. Ask another question.
MR. NEUFELD: Fine. One second.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: No further questions of the witness, your Honor.
THE COURT: Mr. Darden.
MR. DARDEN: Thank you, your Honor.
CROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: Good afternoon.
MS. KESTLER: Good afternoon.
MR. DARDEN: When you examined the sock, that was on what, June--what was that date?
MS. KESTLER: June 29th.
MR. DARDEN: Okay. And you didn't examine the sock. You looked at it; is that correct?
MS. KESTLER: We did a cursory look at each piece of evidence to determine what analysis, if any, we were going to perform as well as inventory it.
MR. DARDEN: Okay. Now, when a criminalist is doing a detailed search of an item for blood, you use high intensity light to examine that item, don't you?
MS. KESTLER: That's one of the things, yes.
MR. DARDEN: Okay. Did you use high intensity light when you looked at the socks that day?
MS. KESTLER: No. The light is about like in here.
MR. DARDEN: And you weren't doing a detailed search for blood at that time, were you?
MS. KESTLER: No.
MR. DARDEN: Another means by which you would search for blood on a pair of socks, dark colored socks, would be to use a microscope; is that right?
MS. KESTLER: That's correct.
MR. DARDEN: Did you use a microscope that afternoon?
MS. KESTLER: No.
MR. DARDEN: And that's because you weren't conducting a detailed search for blood on the socks, were you?
MS. KESTLER: No. We were just trying to determine what we might--and that's what "Blood search" means. There was going to be a blood search done. We were asking for that to be performed. There was no obvious blood under these kind of conditions, office condition.
MR. DARDEN: And is that what the notation means, "Blood search, none obvious"?
MS. KESTLER: That's correct.
MR. DARDEN: That doesn't mean there's no blood present on the socks, does it?
MR. NEUFELD: Objection, your Honor. That calls for speculation.
THE COURT: Sustained.
MR. DARDEN: Well, in writing that notation, you weren't trying to suggest that there was no blood on the sock, were you?
MR. NEUFELD: Objection as to what she was trying to suggest. It speaks for itself.
MR. DARDEN: This is cross-examination.
THE COURT: Overruled. Overruled.
MS. KESTLER: No. We weren't looking for blood at all.
MR. DARDEN: Now, when Mr. Neufeld asked you some questions, there were occasions when you wanted to explain your answers; is that correct?
MS. KESTLER: That's correct.
MR. DARDEN: That's because not all of the questions could be answered with a yes or no answer in your opinion; is that right?
MS. KESTLER: That's correct.
MR. DARDEN: And what did you mean when you used the term "Blood search"?
MS. KESTLER: Oh, "Blood search" would be later on. In other words, one of the things that those socks would be looked for was blood. We felt that--we had some knowledge that Mr. Simpson had cut his hand and those socks were found in his bedroom, and so we were going to search for blood on those socks.
MR. DARDEN: And so you were planning to conduct the detailed search at some future point?
MS. KESTLER: Yes, at some future point.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: You mentioned a little while ago that on August 26th, was it, that you went and saw the Bronco?
MS. KESTLER: I believe that's the date. I'm starting to mix up my dates here. Yes, August 26th.
MR. DARDEN: And that was at keystone tow?
MS. KESTLER: That's correct.
MR. DARDEN: And that was in a secured facility?
MS. KESTLER: Yes.
MR. DARDEN: And you went there--and you went there with other criminalists; is that correct?
MS. KESTLER: Yes.
MR. DARDEN: You went there with some Defense experts, didn't you?
MS. KESTLER: Yes, that's correct.
MR. DARDEN: And the search conducted that day was videotaped?
MS. KESTLER: I believe there was a video camera that a member of the Defense team brought or someone. I think it was the Defense.
MR. DARDEN: Okay. And that would be Mr. Ragle who was present on behalf of the Defense; is that right?
MS. KESTLER: I think so, yes.
MR. DARDEN: Okay. And there was a SID photographer there?
MS. KESTLER: Two SID photographers.
MR. DARDEN: Did the Defense also send a photographer to the Bronco that afternoon?
MS. KESTLER: Well, they had another expert there and they took pictures, and I don't know who necessarily took the pictures.
MR. DARDEN: Okay. So you gave the Defense access to the Bronco while you conducted this additional search; is that right?
MS. KESTLER: Yes.
MR. DARDEN: They were present?
MS. KESTLER: That's correct.
MR. DARDEN: And when you looked inside the vehicle, you noticed blood; is that right?
MS. KESTLER: That's correct.
MR. DARDEN: You noticed blood on the console?
MS. KESTLER: Or what appeared to be blood, yes.
MR. DARDEN: Okay. Did you notice blood on the steering wheel?
MR. NEUFELD: Objection, your Honor. Sidebar on this?
THE COURT: With the court reporter.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at the sidebar. What's your objection, Mr. Neufeld?
MR. NEUFELD: My objection is, if she's--the only items which are allowed to be described as blood are those items which have been subsequently tested and corroborated. We know that the stains on the console were subsequently tested for DNA and corroborated. I'm not aware of any other stains observed or collected on that date being subjected to DNA analysis in this case.
THE COURT: Were you asking about the steering wheel, Mr. Darden?
MR. DARDEN: I think it is 293. We can get a list and see.
MR. NEUFELD: Check on that. My recollection is, no, that's--29 was the steering wheel that was collected on June 14th and tested. So if they're talking about something different now, it's my understanding there was no DNA testing on any of the items collected subsequently except on the console.
MR. DARDEN: Is she allowed to say that she saw red stains as opposed to using the term "Blood"?
THE COURT: Yes.
MR. DARDEN: Okay. Why don't I just change it to that?
THE COURT: Because if you recollect, I allowed Mr. MacDonell to testify that he saw red substances on the opposite side of the sock. So--
MR. DARDEN: I'll use red stains or substances.
THE COURT: All right. Or whatever. Dry red stain, whatever.
(The following proceedings were held in open court:)
MR. DARDEN: Mrs. Kestler, you've seen blood before, right?
MS. KESTLER: Yes.
MR. DARDEN: And when you looked in that Bronco, you saw a number of red stains inside; is that correct?
MS. KESTLER: Yes.
MR. DARDEN: Did you see a red stain on the door, interior door?
THE COURT: It's vague. I assume the car has more than one door.
MS. KESTLER: Yeah. I was going to say.
MR. DARDEN: Got me, your Honor.
MR. DARDEN: Did you see a red stain on the interior driver's side door of the vehicle?
MS. KESTLER: I believe so, yes. Yes.
MR. DARDEN: Did you see a red stain on the driver's seat?
MS. KESTLER: Yes.
MR. DARDEN: Did you see a red stain on the armrest or console?
MS. KESTLER: On the console, yes.
MR. DARDEN: Okay. Would that be--and would that console be located to the right of the driver's seat and in-between the driver's seat and the passenger seat?
MS. KESTLER: That's correct.
MR. DARDEN: In fact, you saw more than one red stain on that console; is that correct?
MS. KESTLER: That's--it appeared to be--yeah. I think it was more than one. It was difficult to tell if it was continuous. It was a faint smear over a large area and then it appeared to--it was difficult to tell whether it continued around or if they were separated.
MR. DARDEN: And was it your understanding that those areas had already been swatched by Dennis Fung?
MR. NEUFELD: Objection.
THE COURT: Sustained.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: But you could see that blood; is that right? I'm sorry. You could see those red stains; is that right?
MS. KESTLER: That's correct.
MR. DARDEN: And was it your understanding that the blood on the console had already been swatched?
MS. KESTLER: Based on previous--
MR. NEUFELD: Objection. Same objection, your Honor.
THE COURT: Sustained. (Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: And looking at the red stains that you saw on the console, could you tell just by looking at them whether or not they had been swatched?
MS. KESTLER: Up close when they were observed, they appeared to have been smeared.
MR. DARDEN: And is that consistent with the stains having been swatched?
MS. KESTLER: Yes.
MR. DARDEN: You told us earlier that you inventoried some items; is that correct?
MS. KESTLER: Uh, yes. On June 29th.
MR. DARDEN: Okay.
MS. KESTLER: Is that--I'm sorry.
MR. DARDEN: By the way, did you ever inquire of anyone at Viertel's tow as to whether or not anyone had bled inside that Bronco?
MS. KESTLER: No. At Viertel's? No.
MR. DARDEN: Okay. You inquired of someone else?
MS. KESTLER: No. I believe I asked the detectives or I was told--
MR. NEUFELD: Objection as to what she was told.
THE COURT: Sustained. Sustained. Next question.
MR. DARDEN: Your lab does not allow Defense experts inside the lab?
MS. KESTLER: No, not routinely. There's a policy.
MR. DARDEN: Is that a written policy?
MS. KESTLER: No, it's not in writing.
MR. DARDEN: Okay. But that is the lab policy, isn't it?
MS. KESTLER: I take that back. It is in writing for the firearms unit, but not for the rest of the laboratory. Yes.
MR. DARDEN: Okay. But you changed that policy for the Defense in this case, didn't you?
MR. NEUFELD: Objection, your Honor. That's not--that's assuming facts not in evidence.
THE COURT: Foundation.
MR. DARDEN: Okay. Well, given your policy precluding Defense experts from entering the lab, in this particular case, did you allow Defense experts into your lab?
MS. KESTLER: Yes, we did, at the request of your office and our higher authorities in the department.
MR. DARDEN: And in fact, you've made your employees available to the Defense to be interviewed; is that right?
MS. KESTLER: That's correct.
MR. DARDEN: You've bent over backwards for the Defense, haven't you?
MR. NEUFELD: Objection.
THE COURT: Overruled.
MS. KESTLER: I believe we've done as much and in fact more in some areas than we do in normal cases. When I say normal cases, I mean on a normal basis.
MR. DARDEN: In fact, haven't you actually opened the lab on a Saturday when it would otherwise be closed so that the Defense could come in and examine the items of evidence in this case?
MS. KESTLER: Yes, we did.
MR. DARDEN: You also have a policy that precludes Defense experts from being present when testing is ongoing; is that right?
MS. KESTLER: That's--yes.
MR. DARDEN: But have you allowed Defense experts to be present while testing was ongoing?
MS. KESTLER: Yes. In this case, again, we did in some instances.
MR. DARDEN: And is there a reason that you don't allow Defense experts to be present during testing?
MS. KESTLER: Well, there's several reasons, but the primary--two primary issues involved here is, one, we have to maintain the integrity and the confidentiality of all other cases. We have to put everything else away and no other work gets done at the time that that's going on. And the second reason is safety. I cannot guarantee the safety of any other expert in the laboratory and we are liable.
MR. DARDEN: And so if I understand you correctly then, when Defense experts in this case are present inside your lab, no other testing goes on inside the lab?
MS. KESTLER: That's correct.
MR. DARDEN: So other cases that are being tested and analyzed by SID, those procedures have to stop, don't they?
MS. KESTLER: That's correct.
MR. DARDEN: How many cases do you process within the SID lab during any given year?
MS. KESTLER: In a year, probably at least 50,000 plus cases a year.
MR. DARDEN: Okay. Can I have one moment? I'm just about done.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: You indicated earlier that you were concerned that Andrea Mazzola had been listed as OIC on one of the reports in this case.
MS. KESTLER: That's correct.
MR. DARDEN: Okay. And why were you concerned?
MS. KESTLER: I was concerned because I didn't believe that she in fact was the OIC at the crime scene. My understanding was that Dennis Fung was or policy would be that Dennis Fung would be the OIC at the crime scene, and I was concerned that she was listed that way because I couldn't understand why that had been done, and that was later explained to me.
MR. DARDEN: Okay. Now, Dennis Fung is a criminalist iii; is that right?
MS. KESTLER: That's correct.
MR. DARDEN: Andrea Mazzola was a criminalist I?
MS. KESTLER: That's correct.
MR. DARDEN: And what is the policy, that is when a iii, grade iii criminalist and a grade iii, I criminalist goes to a crime scene? Who is in charge?
MS. KESTLER: The iii is always in charge. He's the supervisor, or whether it's a supervising criminalist or a iii or even a ii, they're always in charge.
MR. DARDEN: And did I understand you to testify that Dennis Fung was not required to write a report when he conducted a presumptive test at the Bronco on July 6th?
MS. KESTLER: Not a formal report. Not an analyzed evidence report.
MR. DARDEN: Now, you have a master's degree in criminalistics; is that correct?
MS. KESTLER: That's correct.
MR. DARDEN: And you had to write a thesis to obtain that master's degree?
MS. KESTLER: Yes, I did.
MR. DARDEN: And we've heard a lot about Asclad. What relationship, if any, do you have personally with Asclad?
MS. KESTLER: I've been a member of the American Society of Crime Laboratory Directors since 19 I believe 83 and I've been a member of the board of directors for the last three years and I'm the chairman of the ethics committee.
MR. DARDEN: You're chairman of the ethics committee for Asclad?
MS. KESTLER: That's correct.
MR. DARDEN: Thank you.
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Neufeld.
REDIRECT EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Miss Kestler, you said that--earlier that--that when you did the initial examination of items for hair and trace and the serological testing back in June and early July 1994, that at that point it time, that Defense experts were not allowed to be present; is that correct?
MR. DARDEN: Objection. Exceeds the scope of cross.
THE COURT: Overruled.
MS. KESTLER: I'm not sure that it was done in early June or July and you'd have to be more specific what you're referring to and where we did it.
MR. NEUFELD: Well, for instance, Dr. Lee was not allowed to be present, Dr. Henry Lee was not allowed to be present during the initial examination of items of evidence by people in your laboratory during the month of June; isn't that correct?
MS. KESTLER: If it was done in June, that's correct.
MR. NEUFELD: Okay. And in fact, isn't it true that the reason there was certain representatives of the Defense team present on August 26th is because the court ordered the SID to make--to give us access to be present at those testings?
MS. KESTLER: I'm not aware of that. I didn't set up the search of the--are you talking about the Bronco, August 26th?
MR. NEUFELD: August 26th, the Bronco.
MS. KESTLER: I'm not aware of how that took place.
MR. NEUFELD: Are you aware of the extent to which it required court orders from this Court to have--
MR. DARDEN: Objection.
THE COURT: Sustained. Sustained. Sustained.
MR. DARDEN: Objection.
MR. NEUFELD: You said that when you looked at stains in the Bronco, they were smeared and that was consistent with having been swatched; is that correct?
MS. KESTLER: Some of them were smeared, and within that smear, there was some obvious additional smearing or rubbing and it could be, yes, it could be consistent with swatching.
MR. NEUFELD: Could be consistent with swatching. It could also be consistent with someone rubbing their hand on a stain; could it not?
MS. KESTLER: It could be consistent with something else. I wouldn't say rubbing your hand on it, no.
MR. NEUFELD: It could be consistent with someone rubbing something else on those areas other than a swatch?
MS. KESTLER: Yes. That's what I just said.
MR. NEUFELD: And when you looked at those smears on the console, for instance, on August 26th, you don't know how they got there, do you?
MS. KESTLER: I know that they're consistent with the previous photographs from the original search of the Bronco. They appear to be present in the same--
MR. NEUFELD: I asked you if you know how they got there.
MS. KESTLER: Oh, no.
MR. NEUFELD: And when you looked at those smears on August 26th, you can't say when they got there, can you?
MS. KESTLER: No.
MR. NEUFELD: And finally, calling your attention to June 29th when you, Collin Yamauchi and Greg Matheson looked at the items of evidence in this case, you said on cross-examination, quote, "We weren't looking for blood," unquote, in reference to the socks. Is that your testimony?
MS. KESTLER: That's correct.
MR. NEUFELD: I don't know--your Honor, I know we marked the typed version. I don't know if we marked the handwritten version.
THE COURT: I don't know if we have either. Do you want to mark that as 1321?
MR. NEUFELD: I would.
THE COURT: All right.
(Peo's 1321 for id = one page handwritten report)
MR. NEUFELD: In fact, I'm only going to mark one page which is going to the page that refers to item 13.
THE COURT: Fine.
MR. NEUFELD: All right.
MR. DARDEN: As I understand it, this item is already in evidence.
THE COURT: Do you know the item number?
MR. DARDEN: No.
THE COURT: All right. Let's mark it 1321.
MR. DARDEN: Can I see it before we put it up?
(Brief pause.)
THE COURT: All right. Want to put it on the elmo?
MR. NEUFELD: Okay. Is--item 13, would that be the--that's the third item described on that document; is that right?
MS. KESTLER: Yes.
MR. NEUFELD: Okay.
MR. NEUFELD: Now, what I would like you to do, Mr. Harris, is could you please focus in on the comment box for item 13, the whole box on that and blow it up as much as you can.
MR. NEUFELD: You said I believe on cross-examination, quote, "We weren't looking for blood with reference to item 13." Is that your testimony?
MS. KESTLER: Right. We weren't searching for blood, yes.
MR. NEUFELD: Do you see where it says "None obvious"?
MS. KESTLER: Right.
MR. NEUFELD: Okay. That means that there was no blood obvious, correct?
MS. KESTLER: That means that I was sitting from here to approximately where your Honor is sitting (Indicating), and to me there was none obvious.
THE COURT: Five feet.
MR. NEUFELD: Okay.
MS. KESTLER: Thank you.
MR. NEUFELD: And where was Mr. Matheson sitting at this time?
MS. KESTLER: Uh, probably within about--oh, I don't recall. I would guess within a couple of feet, you know, in front of him like here (Indicating).
MR. NEUFELD: Okay. And Mr. Yamauchi, he was the person who was actually removing the items of evidence from their packaging so that they could be looked at; isn't that correct?
MS. KESTLER: I think so, yes. I'm not absolutely positive.
MR. NEUFELD: Well, when you went like this (Indicating), were you indicating that he and Mr. Matheson were taking turns doing that?
MS. KESTLER: I think there was some back and forth handling of the evidence.
MR. NEUFELD: And they were sitting at a conference table that's in your office; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And the items were being placed on that conference table in front of them; is that correct?
MS. KESTLER: That's correct.
MR. NEUFELD: And when they say "None obvious," that's referring to blood; is it correct?
MS. KESTLER: Yes.
MR. NEUFELD: And the words "Blood search," those are the words that appear for item 13 in the comment column, correct?
MS. KESTLER: Yes.
MR. NEUFELD: You weren't looking for potatoes on those socks, were you?
MS. KESTLER: The point is, we weren't looking for anything. We were determining what the--
MR. NEUFELD: Your Honor, I would move to strike. I'm asking her a specific question.
THE COURT: Potatoes? Well, that sort of engenders that kind of answer, counsel. All right. Ask it again.
MR. NEUFELD: You were looking--this whole examination--I'm sorry--this whole review of these items was for serological purposes, correct?
MS. KESTLER: No.
MR. NEUFELD: I show you I think it's 1813? 1318. I'm sorry--1318, which is titled summary of analyzed evidence by analysis performed; is that right?
MS. KESTLER: Yes. And in here, you can see there's no analysis performed.
MR. NEUFELD: You see that?
MS. KESTLER: Yes. Under the analysis performed section, there's none done.
MR. NEUFELD: So, Miss Kestler, there were many items of evidence that were looked at at this point where no analysis, no serological analysis had as yet been performed; is that correct?
MS. KESTLER: Yes. And there's some that none was ever going to be done on.
MR. NEUFELD: For instance, if you look on that same sheet--well, it's part of the same series.
MR. NEUFELD: And I'd like to just put up another page if I may.
MR. DARDEN: May I look at this?
MS. KESTLER: Would you tell me which page?
MR. NEUFELD: The first page.
MS. KESTLER: Okay.
MR. DARDEN: This exceeds the scope of my cross-examination, your Honor, items 1 through 11-C.
THE COURT: May I see the sheet, please? Let me see counsel without the court reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Mr. Neufeld, anything else?
MR. NEUFELD: Yes.
MR. NEUFELD: Would you look at your copy of this handwritten report?
MS. KESTLER: Yes.
MR. NEUFELD: All right. Do you see, for instance, on item 30--on item 37, glove, do you see that?
MR. DARDEN: I'm going to object, your Honor.
THE COURT: Sustained. Exceeds the scope.
MR. NEUFELD: In this report, didn't you note in the comments section when you observed red stains or blood drops on certain items that you were looking at, didn't you make those notations in the comment section for other objects and other items?
MR. DARDEN: Irrelevant. Exceeds the scope.
THE COURT: Overruled.
MS. KESTLER: If they were clearly obvious by the naked eye. This is so simple. You know, it was one of those things where the dark socks, you couldn't see anything, so we decided to search for blood later. On the gloves, the red drops were obvious.
MR. NEUFELD: So what you're saying is that when you did see blood, you did note the presence of blood in the comment box next to the item; is that correct?
MS. KESTLER: If it was obvious.
MR. NEUFELD: You noted it?
MS. KESTLER: Yeah.
MR. NEUFELD: And for this one--
MR. NEUFELD: Just blow that up.
MR. NEUFELD: And for this one, what you noted in the comment box was simply "Blood search, none obvious," and that's the only thing it says in that box other than "Dress socks"; isn't that correct?
MR. DARDEN: Objection. Asked and answered.
THE COURT: I assume this is the last time that we're--
MR. NEUFELD: This is the last question.
MR. NEUFELD: It doesn't say anything else in that box, does it?
MS. KESTLER: No. It says we're going to do a blood search and that there was none obvious.
MR. NEUFELD: Miss Kestler, you're telling us that it says, "We are going to do a blood search." Where does it say in that box, "We are going to do"? Could you please point that out in the box?
THE COURT: Argumentative, counsel. Counsel, it's argumentative. We've gone over this. It's obvious. The jury can read what's there.
MR. NEUFELD: Thank you. No further questions.
MR. DARDEN: Can we leave that up there just one moment, your Honor?
RECROSS-EXAMINATION BY MR. DARDEN
MR. DARDEN: Just so it's clear, does that mean that the blood search had been done or does it mean that you intended to do a blood search at some future day?
MS. KESTLER: No. It means we intended to do--have a blood search done as it does on some of the other comments where we said PCR. Means we're going to do PCR. That's what we intended to do.
THE COURT: Anything else?
MR. DARDEN: And this notation is under the "Comments" column; is that correct?
MS. KESTLER: Right.
MR. DARDEN: There's another column that--that is entitled "Analysis performed"?
MS. KESTLER: That's correct.
MR. DARDEN: Okay. And the "Analysis performed" column is for things that have already been analyzed?
MS. KESTLER: That's correct.
MR. DARDEN: Given the fact that there was no blood obvious, why then did you want to do a subsequent search of the socks for blood?
MR. NEUFELD: Objection. Beyond the scope.
THE COURT: I think we've already asked that question, counsel.
MR. DARDEN: Well, I haven't asked it.
THE COURT: I think you're the one who asked the question.
MR. DARDEN: It was a good question, your Honor.
THE COURT: I remember the answer.
MR. DARDEN: You remember the answer?
THE COURT: Yes, I do.
MR. DARDEN: Well, I'm sure the jury does. Thank you, your Honor. Thank you, Mrs. Kestler.
THE COURT: Anything else?
MR. NEUFELD: No. That's all. Thank you very much.
THE COURT: Miss Kestler, thank you very much. You may step down.
MS. KESTLER: Can I make my doctor's appointment?
THE COURT: Yes, you can make your doctor's appointment. All right. Ladies and gentlemen, we're going to take our recess for the evening. All right. Please remember all my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you, don't conduct any deliberations until the matter has been submitted to you. And we'll stand in recess until 9:00 o'clock tomorrow morning. All right. Have a pleasant evening. See you tomorrow morning. All right. We'll stand in recess.
(At 5:05 P.M., an adjournment was taken until, Thursday, August 17, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. Ba097211)
Orenthal James Simpson,)
Defendant. )
Reporter's transcript of proceedings Wednesday, August 16, 1995 volume 207
Pages 41840 through 42054, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 207 pages 41840 - 42054
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Day date session page vol.
Wednesday August 16, 1995 A.M. 41840 207 P.M. 41897 207
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PROCEEDINGS
Motion re recusal 41840 207
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE witnesses direct cross redirect recross vol.
Kestler, 207 Michele (Resumed) 41908n 42026d 42041n 42052d
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Kestler, 207 Michele (Resumed) 41908n 42026d 42041n 42052d
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. Page vol.
1317 - 12-page document 41908 207
1318 - 1-page document 41973 207 entitled "Office of operations" dated July 19, 1974
1319 - 3-page document 42003 207 entitled "Collection and preservation of body fluids"
1320 - 5-page document 42017 207 entitled "Summary of analysis performed"
1321 - 9-page document 42044 207 described as the handwritten version of exhibit 1320