The following is Judge Lance Ito's ruling on whether pathologist Dr. Irwin Golden may be cross examined concerning threats he made in the past against lawyers.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
Date: 7 April 1995
Hon. Lance A. Ito, Judge
Deirdre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Scope of Cross Examination re Dr. Golden
The court has read and considered the prosecution's MOTION IN LIMINE TO PROHIBIT CROSS EXAMINATION OF DR. GOLDEN CONCERNING AN ALLEGED DISPLAY OF A FIREARM AND ERRORS ALLEGEDLY MADE IN UNRELATED AUTOPSIES, the DEFENSE RESPONSE TO PROSECUTION' MOTION IN LIMINE TO PROHIBIT CROSS EXAMINATION OF DR. IRWIN GOLDEN CONCERNING AN ALLEGED DISPLAY OF A FIREARM AND ERRORS ALLEGEDLY
MADE IN UNRELATED AUTOPSIES, and heard the argument of counsel.
The prosecution, by this motion, seeks to limit or prohibit the defense cross examination of Dr. Irwin Golden (Golden), the pathologist who performed the autopsy examinations of the bodies
of Ronald L. Goldman and Nicole Brown Simpson, the victims in this case. The prosecution seeks to prohibit defense inquiry into an allegation that on 21 July 1994 Golden brandished a handgun and stated, "Maybe I ought to kill nine or ten of those motherfucking attorneys, " [FN1] or "You know we ought to go out and kill nine or ten of those attorneys." The prosecution seeks to portray this alleged statement and act of brandishing as a prior bad act that does not reflect moral turpitude, and thus not admissible. the defense more appropriately characterizes the alleged comments as an expression of bias towards attorneys
and opines that this anti-lawyer animus was specifically directed at counsel for the defendant provoked by defense counsel's "blistering" cross examination just days before the alleged comment was made. Were this true, i.e. that the statement was directed at defendant's counsel, this would be a clear expression of a bias and therefore properly the subject of cross examination under Evidence Code Section 780 (f). One key
element, that the alleged remark was directed at counsel for defendant, is not supported by the record. The interview of Earl Clark does not contain reference, direct or implied, to counsel for defendant. The interview of Nick Romero indicates Dr. Golden may have been irritated by prosecutors for having
subpeoned him to testify in court when he was scheduled for a vacation. There is no indication of any connection to testimony in this case. The brandishing or exhibition of a firearm in a threatening manner is an alternate/felony in the State of California. Penal Code Section 417. The making of threats could be prosecuted as a terrorist threat, an alternate misdemeanor/felony. Penal Code Section 422. This raises the
possibility that if the court were to allow cross examination on this alleged incident, Golden may claim a Fifth Amendment privilege. The defense rather blithely dismisses the significance of this problem arguing the prosecution can avoid the problem simply by grant of immunity. This argument ignores the fact that grants of immunity are uniquely within the discretion of the public prosecutor, in this case either the Los
Angeles City Attorney or the Los Angeles County District Attorney's Office. For tactical reasons, it appears unlikely the prosecutors in this case would seek a grant of immunity for Golden. Given the uncertain nature of the evidence concerning the actual comment made, the court finds the proffered evidence to have less than slight probative value. The possibility that such cross examination might entail the invocation of a Fifth Amendment privilege and additional hearings, causes concern about the undue consumption of court time, and court sustains the objection.
The prosecution next expresses its desire to curtail defense cross examination of Golden regarding mistakes made by Golden in two previous cases. In one case Golden mischaracterized the entry and exit of a gunshot wound in a 1990 autopsy. In another 1990 autopsy Golden mistakenly characterized a contact gunshot wound as having been fired from several feet away. The defense argues applicability of Evidence Code Section 721(a) which provides that an expert witness "...may be fully cross-examined as to (1) his [sic] qualifications, (2) the subject to which his testimony relates, and (3) the matter upon which his [sic]
opinion is based and the reasons for his [sic] opinion." The defense anticipates Golden will be called upon to testify the cause of death, the manner in which the wounds were inflicted, and how the autopsy examination results might aid in determining the time of death. The defense argues that it is entitled to
fully examine Golden's professional competence and his credibility. The prosecution argues that it is entitled to fully examine Golden's professional competence and credibility. The prosecution argues that this is a "classic" Evidence Code Section 1104 issue: "...evidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his conduct on a specifies occasion." The
prosecution adds that Evidence Code Section 352 should be invoke to preclude such cross examination of Golden because the probative value is severely diminished by the passage of time, the apples and oranges aspect of comparing gunshot wounds to knife wounds and the these are two incidents out of approximately 6,000 autopsy examinations conducted by Golden over a fifteen year career, The prosecution adds that if the court allows such cross examination, the prosecution will be compelled to bring in the 6,000 plus other cases where no errors were noted.
The statutes and case law dealing with the examination of expert witnesses is comprised of two competing interests: 1) the parties are entitled, to broad range in cross examination, and (2) the court has broad discretion in limiting cross examination in collateral areas. In the two instances where it is alleged
that Golden made mistakes, those mistakes were documented by addenda to the original medical examiner's report. it would therefore seem that Golden has acknowledged his mistakes and his amended reports, the mistakes would be of little probative value in the area of credibility. Mistakes do, however, go to professional competence. In balancing the right of an adverse party to fully cross examine an expert witness versus the very limited value of two later corrected mistakes made five years ago, the balance in this situation tips in favor to the right to fully cross examine. The court will allow inquiry into these two instances; however, the parties are reminded that such testimony is still subject to reasonable time limitations pursuant to Evidence Code Section 352.
The clerk of the court is directed to serve a copy of this ruling upon the parties immediately by facsimile and upon their appearance in court 11 April 1995.
IT IS SO ORDERED.
1 See Henley, Don: Get Over It, "Old Willie was right...", a modern reference to the works of William Shakespeare. Dick the butcher: "The first thing we do, let's kill all the lawyers." II King Hnery VI, Act IV, Scene II.