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From:
[email protected] (Myra Dinnerstein)
Subject: SIDEBARS - GARY SIMS - Part 1
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Date: Fri, 26 May 1995 04:46:14 GMT
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Sidebars from May 16, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR.
MR. HARMON, MY RECOLLECTION IS MR. SIMS TESTIFIED
THAT HE HAD SOMETHING ON THE ORDER OF 61 ITEMS SENT TO DOJ. ARE
YOU PROPOSING TO GO THROUGH EACH ONE OF THESE 61?
MR. HARMON: REAL FAST. I'VE GOT A LIST, YEAH.
MR. SCHECK: I BELIEVE HE HAS ALREADY TESTIFIED THAT HE --
IN EACH INSTANCE WHERE HE SAMPLED AN ITEM, THAT HE CUT IT AND
PRESERVED IT FOR DEFENSE TESTING, AND I THINK THAT THIS IS
CUMULATIVE AT THIS POINT AND IT IS AGAIN ANOTHER EFFORT TO TRY TO
DRAW THE IMPLICATION.
THE COURT: I DON'T THINK WE NEED TO GO THROUGH EACH ONE OF
THESE 61 ITEMS.
MR. HARMON: CAN I DO IT BY DEDUCTION? WHICH ONES WAS
THERE NOTHING LEFT? REAL EASY, ONLY FOUR OR FIVE.
THE COURT: ARE THERE ANY THAT YOU COMPLETED CONSUMED IN
THE TESTING?
MR. HARMON: SURE.
THE COURT: OKAY.
MR. HARMON: I NEED TO HAVE HIM GIVE THE GROSS FIGURE AND
THEN EVERYBODY CAN SUBTRACT.
THE COURT: I DON'T WANT TO SIT HERE THROUGH 61 ITEMS.
MR. HARMON: OKAY.
MR. COCHRAN: UNRELATED MATTER.
WHEN WE WERE OVER NEAR THE BENCH, AND I'M SURE IT IS
NOT INTENTIONAL, IF MISS CLARK WHISPERS SOMETHING TO TALK, THEY
ARE SO CLOSE TO THE JURY, AND I ASK THEM TO BE MINDFUL.
THE COURT: I NOTICE.
MR. COCHRAN: IT IS REAL CLOSE. THE JURORS TRY TO LOOK
AHEAD, BUT I BET IF YOU ASK THEM THEY CAN SEE YOU GUYS TALKING OR
WHISPERING. MARCIA IS TALKING TO YOU.
AND SO AS A MATTER OF FORM, I THINK THAT MAYBE WE
SHOULD CHANGE THAT PROCEDURE. MAYBE WE SHOULD MOVE BACK FROM THE
JURORS OR WHISPER IN EACH OTHER'S EARS.
THE COURT: MOVE ON THE OPPOSITE SIDE, BUT I ALSO NOTICED
THE SAME THING WITH MR. NEUFELD, SO WHISPERING --
MS. CLARK: AND MR. NEUFELD'S WHISPER IS A GREAT DEAL
LOUDER THAN MINE.
THE COURT: YES, HE DOES. I CAN HEAR HIM RIGHT NOW.
MR. COCHRAN: I AM TRYING TO POINT OUT SOMETHING AND I
THINK WE ALL WANT TO BE MINDFUL OF THAT. THIS IS NOT A
CRITICISM.
MR. HARMON: THANK YOU.
THE COURT: ALL RIGHT.
LET'S PROCEED.
MR. HARMON, WE WILL TAKE A BREAK AT 2:30.
MR. HARMON: WHAT TIME?
MR. COCHRAN: 2:30.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE ARE OVER AT THE SIDE BAR.
WHAT IS THE RELEVANCE OF COMPARISON?
MR. HARMON: WELL, BRIEFLY, THEY HAVE USED THE SAME
RESTRICTION ENZYME AND DATA CAN BE INTERCHANGED BETWEEN THE TWO
AND WE HAVE ALREADY HAD A REFERENCE TO THAT MUCH EARLIER ON ON
COMPATIBILITY OF DATABASES.
THAT IS ONE OF THE ARTICLES THAT MR. SIMS TALKED
ABOUT OF HIS QUALIFICATIONS.
MR. SCHECK: I HAVE NO OBJECTION TO HIM SAYING THAT THEY
USED THE SAME RESTRICTION ENZYME.
I HAVE A LOT OF PROBLEM IF HE IS GOING TO BE
QUALIFIED AN AS A POPULATION GENETICIST TO TALK ABOUT THE
APPROPRIATENESS OF USING DIFFERENT DATABASES. I DON'T THINK HE
IS QUALIFIED TO DO THAT.
MR. HARMON: THAT WASN'T THE QUESTION. ARE THEY COMPATIBLE
SYSTEMS?
THE COURT: ALL RIGHT.
THE OBJECTION IS OVERRULED.
****
Sidebars from May 17, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE ARE OVER AT THE SIDE BAR. MR. SCHECK.
MR. SCHECK: YES. THERE HAS BEEN NO FOUNDATION WHATSOEVER
LAID FOR D1S80 RESULTS WITH RESPECT TO THE TECHNOLOGY, WITH
RESPECT TO ITS FOUNDATION, WITH RESPECT IN PARTICULAR TO THIS
WITNESS' EXPERTISE AND KNOWLEDGE FOR REPORTING THESE RESULTS.
THE TESTIMONY HAS BEEN THAT HE IS THE LEAD ANALYST IN
THE CASE, BUT THE PERSON WHO PERFORMED THE D1S80 TESTS AND HAS
THE REQUISITE SPECIALIZED KNOWLEDGE IS MISS MONTGOMERY.
SO THERE HAS BEEN NO EXPLANATION AND NO FOUNDATION
LAID AS TO THE D1S80 SYSTEM WHATSOEVER THROUGH THIS WITNESS OR
ANY OTHER WITNESS, SO AT THIS TIME IT SEEMS TO ME THE WRONG
WITNESS AND THERE IS A LACK OF FOUNDATION AND I OBJECT TO THAT
RESULT COMING IN.
THE COURT: MR. HARMON, DO YOU THINK YOU HAVE AN ADEQUATE
FOUNDATION?
MR. HARMON: YES, I DO. I MEAN, WE COULD CALL IN THE GUYS
THAT STRIPPED THE MEMBRANES, TOO, AND SPEND THE NEXT COUPLE OF
MONTHS DOING THAT.
IF YOU RECALL, ROBIN COTTON DIDN'T ACTUALLY DO ANY OF
THIS.
THE COURT: NO, NO, I'M NOT WORRIED ABOUT THE COMPARISON.
HAVE YOU LAID A FOUNDATION FOR MR. SIMS TO TESTIFY TO
THE D1S80?
MR. HARMON: YES, I HAVE. ROBIN COTTON HAS EXPLAINED THE
TECHNOLOGY. WE EVEN DISCUSSED DQ-ALPHA WITH HIM. I COULD SPEND
HALF A DAY DISCUSSING DQ-ALPHA GENERICALLY WITH HIM IF THAT IS
WHAT MR. SCHECK WANTS.
THE COURT: THAT IS NOT THE OBJECTION. THE OBJECTION IS TO
THE D1S80.
MR. HARMON: D1S80 IS IN THE SAME CATEGORY. WE HAVE
EXPLAINED IT SUFFICIENTLY FOR HIM TO DESCRIBE THE RESULTS. I
WILL HAVE RENEE TESTIFY. I MEAN, IF THAT IS THE PROBLEM, IF THEY
WANT TO HEAR FROM RENEE --
THE COURT: IS MISS MONTGOMERY GOING TO TESTIFY?
MR. HARMON: ABSOLUTELY, ABSOLUTELY.
THE COURT: I WILL OVERRULE THE OBJECTION SUBJECT TO A
MOTION TO STRIKE.
MR. HARMON: NO QUESTION.
MR. SCHECK: THAT BE MADE CLEAR THAT -- THERE IS -- AT THE
PRESENT TIME THERE IS NO FOUNDATION AND MY CONCERN --
THE COURT: I -- I UNDERSTAND.
MR. SCHECK: BUT WHAT I'M ASKING FOR IS AN INSTRUCTION TO
THE JURY THAT THE D1S80 RESULT IS BEING TAKEN SUBJECT TO
CONNECTION THROUGH THE TESTIMONY OF ANOTHER WITNESS BECAUSE RIGHT
NOW THERE IS NO FOUNDATION.
AND WHAT I'M FEARFUL OF, IF YOU TAKE A LOOK AT THE
D1S80 --
THE COURT: UH-HUH.
MR. SCHECK: -- RESULTS, THEY LOOK LIKE RFLP RESULTS IN THE
SENSE THAT THEY HAVE BANDING -- YOU KNOW, THEY HAVE MARKER LANES
AND BANDS ON THEM, BUT IT IS A DIFFERENT SYSTEM WITH DIFFERENT
PRINCIPLES.
IF THE COURT RECALLS, AT THE TIME THAT THIS WITNESS
TESTIFIED AT THE GRIFFIN HEARING, THIS LABORATORY HAD NOT EVEN
REPORTED OUT A D1S80 RESULT, AS OF AUGUST, SO IT SEEMS TO ME THAT
THERE IS A 352 PROBLEM IN TERMS OF CONFLATING (SIC) THE TWO
SYSTEMS JUST BY THEIR APPEARANCES AND THE FOUNDATION OF THE TWO
SYSTEMS IS DIFFERENT.
AND I AM AFRAID BY LETTING IT IN IN THIS FASHION IS A
CHANCE OF SPILL-OVER PREJUDICE.
SO WHAT I WOULD ASK THE COURT TO DO IS INSTRUCT THE
JURY THAT THE D1S80 RESULT IS BEING TAKEN NOW SUBJECT TO
CONNECTION, EXPLAIN WHAT THE SUBJECT TO CONNECTION IS TO BE
CONNECTED UP WITH ANOTHER WITNESS; NOT THIS WITNESS.
THE COURT: ALL RIGHT.
THE OBJECTION IS OVERRULED SUBJECT TO A MOTION TO
STRIKE.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT. WE ARE OVER AT THE SIDE BAR.
MR. SCHECK: THERE IS A SEVEN-PROBE MATCH ON ITEM NO. 117
>FROM THE GATE, AND I AM AWARE OF IT, AND I ASKED MR. HARMON
TODAY, AND PREVIOUSLY I INDICATED TO HIM THAT I CERTAINLY HAVE NO
OBJECTION TO HIM BRINGING THIS OUT IN HIS TESTIMONY RIGHT NOW,
RATHER THAN CALLING THIS WITNESS BACK.
THE COURT: OKAY.
MR. HARMON: I AM KIND OF SHOCKED TO HEAR THIS ACQUIESCENCE
BECAUSE IF YOU RECALL -- NO, IF YOU RECALL, I SAID I WASN'T GOING
TO PRESENT IT AND I'M NOT PREPARED, SO I AM --
THE COURT: HOLD ON.
MR. HARMON: -- I AM NOT PREPARED TO DO THAT TODAY.
MR. SCHECK: WELL, AS A MATTER OF FACT, WHAT I REQUESTED
WITH RESPECT TO THESE SAMPLES BEFORE WHEN WE HAD THE ISSUE ARISE,
SINCE THIS TESTIMONY IS ONGOING DURING THE COURSE OF THE
PROCEEDINGS AND WE HAD THIS PROBLEM WITH REPORTING THE RESULTS OF
115 AND 116 BEFORE THEY WERE DONE, AT THAT TIME I REQUESTED OF
THE COURT THAT WE HAVE REPORTS OF THE RESULTS AS THEY CAME IN.
NOW, IT SEEMS TO ME THAT HE DOESN'T WANT TO BRING IT
OUT, I INTEND TO BRING IT OUT. I DON'T WANT SOMETHING COMING OUT
LATER THAT MAKES IT LOOK LIKE THERE IS SOMETHING MORE THERE.
I WANT TO GO INTO AN INQUIRY AS TO --
THE COURT: WELL, WE PROBABLY --
MR. SCHECK: 115, 116, 117. I WANT TO GO INTO THE STATUS
AND I'M GIVING HIM FAIR NOTICE.
THE COURT: WE PROBABLY WON'T FINISH WITH HIM.
MR. HARMON: I THINK WE NOTICED TO HAVE SOME DISCUSSION ON
THIS, BECAUSE THIS IS THE MOST BIZARRE, INSINCERE -- THERE IS
SOMETHING ELSE GOING ON HERE, JUDGE, AND YOU KNOW THAT AND I KNOW
THAT.
THE COURT: MR. HARMON, HOLD ON. HE OFFERED TO LET YOU PUT
THERE IN NOW. IF YOU WANT TO DO IT, DO IT. IF YOU WANT THE
EVENING TO THINK ABOUT IT, FINE.
MR. HARMON: NO. WE DON'T HAVE THE AUTORADS, BUT THIS IDEA
THAT HE IS GOING TO ELICIT THE RFLP RESULTS AT THIS POINT WHEN IT
IS BEYOND THE SCOPE OF DIRECT EXAMINATION --
THE COURT: WELL, LET'S SEE HOW FAR YOU GET WITH YOUR
DIRECT TODAY.
MR. HARMON: I HAVEN'T REVIEWED HIS NOTES. I MEAN, I'M
VERY METICULOUS WITH THIS, AND IF YOU WANT TO REVIEW BACK, JUDGE
--
THE COURT: ROCK, IT IS JUST AN OFFER. THINK ABOUT IT.
MR. HARMON: IT IS NOT AN OFFER, YOUR HONOR.
THE COURT: WELL, I WOULD ENCOURAGE YOU TO THINK ABOUT IT
SIMPLY SO THAT WE CAN MOVE THIS ALONG.
MR. HARMON: I UNDERSTAND. THE AMOUNT OF TIME --
MR. SCHECK: I WOULD EXPECT TO BE FINISHED TODAY.
MR. HARMON: THE AMOUNT OF TIME IT WILL TAKE TODAY TO
PRESENT IT IS THE SAME AMOUNT OF TIME THAT IT WILL TAKE IN A FEW
WEEKS.
THERE IS SOMETHING ELSE GOING ON HERE AND YOU KNOW
THAT AND I KNOW THAT.
THE COURT: HOLD ON. HOLD ON. PUTTING ALL THAT ASIDE --
MR. HARMON: OKAY.
THE COURT: HOW MUCH --
MR. HARMON: IT IS HARD TO, THOUGH.
THE COURT: PUTTING ALL THAT ASIDE, HOW MUCH MORE DO YOU
HAVE WITH THIS GUY?
MR. HARMON: THIS IS A FOUR O'CLOCK DAY?
THE COURT: YES.
MR. HARMON: I WANT TO TALK ABOUT CONTAMINATION,
DEGRADATION AND I'M GOING TO TRY TO PICK IT UP, BUT THE LOGISTICS
OF THESE THINGS WILL SLOW THINGS DOWN. WE ARE PRETTY MUCH BEYOND
ALL OF THESE DISPLAYS, NOW SO DEPENDING ON HOW MANY OBJECTIONS
THERE ARE.
THE COURT: HAVE THERE BEEN MANY?
MR. HARMON: CONTINUE THAT AND I CAN -- SO I'M GOING TO TRY
TO DO IT THIS AFTERNOON. WE'VE GOT THE STATISTICS. IF I HAVE TO
DO A BROAD GOING BACK TO HIS CREDENTIALS -- THAT IS ONE WAY WE
CAN ACQUIESCE AND SPEED THINGS UP. LET HIM CALCULATE ACROSS THE
LANES AND THAT WILL REALLY SPEED THINGS UP.
THE COURT: OH, GET DR. WEIR IN HERE.
MR. HARMON: HE IS COMING. HE IS COMING FOR SURE. NO
QUESTION HE IS COMING.
THE COURT: OKAY. THANKS FOR THE OFFER.
****
Sidebars from May 18, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT.
WE'RE OVER AT THE SIDEBAR.
WHAT'S YOUR 1054 OBJECTION?
MR. SCHECK: YOUR HONOR, THIS IS PRECISELY WHAT I WAS
WORRIED ABOUT. AND THAT IS THE WORLDWIDE -- SO-CALLED STUDY,
WORLDWIDE STUDY OF THE FBI WHERE THEY WENT AROUND AND THEY
COLLECTED FREQUENCY DATA FROM DIFFERENT LABORATORIES FROM
DIFFERENT PARTS OF THE WORLD WITH DIFFERENT KINDS OF MARKER
SYSTEMS IS NOT -- WAS NOT TURNED OVER IN DISCOVERY AND WAS NOT
PART OF THE CALCULATION THAT THIS WITNESS MADE WITH RESPECT TO
THESE FREQUENCIES, WAS NOT PART OF THE OFFER THAT MR. HARMON MADE
WHEN I PINNED HIM DOWN AS TO WHICH DATABASES HE WAS RELYING UPON
AND NOT RELYING UPON.
SO IT GOES BEYOND THE SCOPE OF WHAT HE SAID HE WAS
GOING TO DO AND WHAT THEY SPECIFICALLY INDICATED IN DISCOVERY
WHEN THEY TURNED OVER DATABASES TO US WHEN WE SPECIFICALLY ASKED
WHAT DATABASES THEY WERE RELYING UPON.
THE COURT: MR. HARMON.
MR. HARMON: THAT WAS THE ONLY QUESTION I WAS GOING TO ASK.
THE COURT: IS HE FAMILIAR WITH IT?
MR. HARMON: SURE. AND HIS PRESENTATION IS NOT GOING TO BE
BASED ON IT. IT MAY BE DEPENDING ON THE EXTENT OF
CROSS-EXAMINATION, BUT WE'VE NEVER HAD ANY INTENTION OF
PRESENTING THAT. I JUST WANTED TO --
MR. SCHECK: NO, NO, NO. THEN IT SHOULD BE STRUCK BECAUSE
THE IMPLICATION IN HERE IS THAT HE'S RELYING ON IT IF HE'S
FAMILIAR WITH THE WORLD-WIDE STUDY, AND THAT'S MORE PREJUDICIAL
THAN PROBATIVE.
THE COURT: ALL RIGHT.
OBJECTION IS OVERRULED, IF THAT'S ALL IT IS, IS HE
FAMILIAR WITH IT.
MR. HARMON: COULD WE -- I WANT TO READ THAT BACK.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE ARE OVER AT SIDEBAR.
MR. SCHECK: I'M ASSUMING, AS THE COURT PICKED UP, THE
POLY-MARKER AND DQ-ALPHA. THERE'S NOTHING ABOUT --
THE COURT: YOU CAUSED THIS PROBLEM, YOU GUYS.
MR. COCHRAN: NO. ROCK DID.
MR. HARMON: MAYBE I CAN HAVE MISCONDUCT ADDED TO MY TAB
HERE.
MR. SCHECK: I WANT TO NOTE FOR THE RECORD PATRICK EWING IS
A GREAT PLAYER.
THE COURT: OKAY.
MR. SCHECK: THE POINT IS, DQ-ALPHA AND POLY-MARKER HAVE
THE SAME SYSTEM. I ASSUME THAT HE HAS DISAGGREGATED THE
DQ-ALPHA. IN OTHER WORDS, THAT'S NUMBER ONE.
NUMBER TWO, THIS IS MY OBJECTION. IS THAT MR. HARMON
ASKED A SERIES OF QUESTIONS OF THIS WITNESS ABOUT SIX PROBES THAT
WERE DUPLICATIVE OF THE CELLMARK PROBES, A WHOLE SERIES OF
QUESTIONS ABOUT HOW THOSE SIX PROBES WERE DISCRIMINATED AMONG
PEOPLE AND FURTHER DIFFERENTIATED AND FURTHER MADE THESE THINGS
MORE RARE.
THAT WAS THE BASIS OF MY RELEVANCY OBJECTION, YOUR
HONOR, BECAUSE HE ASKED A WHOLE SERIES OF QUESTIONS TO MAKE IT
SEEM AS THOUGH THOSE SIX PROBES WERE SOMEHOW -- THAT WERE NOT --
THEY CAN'T BE INCLUDED IN THE CALCULATION BECAUSE THE
DUPLICATIVES WERE SOMEWHAT ADDED TO THE RARENESS HERE. AND MY
WHOLE PROBLEM WITH THAT FORM OF PRESENTATION AND THE CHARTS AND
EVERYTHING THAT HE'S DOING HERE IS THAT IT'S CALCULATED TO UNDULY
CONFUSE THE JURY AS TO HOW MUCH IT REALLY IS AND ISN'T.
NOW, IT'S A LIMITED RELEVANCE WITH RESPECT TO THE
SOCK I AGREE. BUT I GET VERY CONCERNED WHEN IT'S -- YOU KNOW,
THE WHOLE CUMULATIVE EFFECT, AND I JUST WANTED TO PUT ON THE
RECORD THAT I THOUGHT THAT WHOLE LINE OF QUESTIONS WAS A CLEAR
352 VIOLATION AND WAS UNDULY CONFUSING.
THE COURT: ALL RIGHT. NOTED.
THANK YOU.
MR. COCHRAN: CAN WE SHOW IT TO THE CLIENT?
THE COURT: YES, SURE.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT.
WE ARE OVER AT THE SIDEBAR.
MR. SCHECK.
MR. SCHECK: YES.
I WOULD LIKE AN OFFER OF PROOF AS TO WHERE THIS LINE
OF TESTIMONY IS GOING, THE ARTICLES THAT MR. HARMON HAS JUST
GIVEN ME FROM DR. BLAKE, AND I WOULD LIKE TO KNOW THE RULINGS IN
ADVANCE SO THAT WE CAN WORK OUT THE GROUNDRULES ABOUT WHAT CAN
AND CANNOT BE SAID IN THIS CONNECTION SO THAT I DON'T HAVE TO GET
UP AND, YOU KNOW, OBJECT CONTINUALLY. I WOULD LIKE TO KNOW WHAT
THE RULINGS ARE IN ADVANCE.
THE COURT: WHAT ARE YOU GUARDING AGAINST? A CONSTANT
IMPLICATION THAT, IS THIS THE SAME DR. BLAKE WHO WAS OBSERVING
ALL THIS TESTING, THAT TYPE OF QUESTION?
MR. SCHECK: YES.
WE HAD AN AGREEMENT THAT WHEN HE WAS BEGINNING TO GET
INTO THIS AREA, WE WOULD HAVE A DISCUSSION ABOUT THE PERIMETERS
OF WHAT COULD OR COULD NOT BE DONE.
THE COURT: ROCK, WHERE ARE WE GOING WITH THIS?
MR. HARMON: SCIENTISTS RELY ON THIS. AND WHILE I
UNDERSTAND THEIR CHAGRIN IN TRYING TO EXPLAIN WHY HE'S OFF THE
WITNESS LIST AND WHY HE'S -- AND WHY HE MAY NOT COME IN HERE,
HE'S THE LEADING SCIENTIST IN THIS AREA.
THE COURT: I UNDERSTAND. WE ALL UNDERSTAND THAT.
WHAT AREA ARE YOU GOING TO QUESTION HIM ON?
MR. HARMON: CONTAMINATION ISSUE, DEGRADATION. THESE ARE
ALL SIMPLY ADDRESSED IN THESE ARTICLES, AND I THINK WE'RE
ENTITLED -- WE'RE CLEARLY ENTITLED TO HAVE AN EXPERT RELY ON
SCIENTIFIC LITERATURE AND ARTICULATE THE BASIS FOR HIS OPINION
AND HOW HE'S RELIED ON IT.
THE COURT: WHY ISN'T THAT HEARSAY ON DIRECT EXAMINATION?
MR. HARMON: I CAN GET YOU 801 AND 804. I MEAN, JUDGE -- I
MEAN 801 ESPECIALLY.
(BRIEF PAUSE.)
MR. HARMON: AND THEN I THINK 804 EVEN MAKES IT CLEARER,
THAT WHILE ONE MAY NOT APPRECIATE -- WHILE THEY MAY TRY TO
TRIVIALIZE HIS OPINION IS BASED ON IT, THE FACT IS THAT HE HAS
BASED HIS OPINION ON SCIENTIFIC LITERATURE.
MR. SCHECK: I HAVE NO OBJECTION TO HIM SAYING HE BASES HIS
OPINION ON SCIENTIFIC LITERATURE AND EXPRESSING HIS OPINION,
GOING INTO ALL THESE DETAILS.
BUT WHAT I OBJECT TO IS THAT THERE ARE MANY AUTHORS
TO THIS ARTICLE AND CONTINUALLY MENTIONING THIS PARTICULAR AUTHOR
TO TRY TO RAISE THE IMPLICATION THAT DR. BLAKE APPROVED OF ALL
THE TESTING NOT IN HIS LABORATORY -- THAT'S THE ISSUE IN THIS
CASE -- BUT THE LAPD.
SO I MEAN IF HE WANTS TO ELICIT THAT THERE'S OTHER
ARTICLES IN THE FIELD AND GET INTO SPECIFICS, THAT'S WHAT I
REALLY WANT AN OFFER OF PROOF AS TO WHAT HE'S GOING TO BRING OUT.
YOU KNOW, I HAVE NO PROBLEM WITH HIM SAYING HE BASES HIS OPINION
ON ALL THIS AND INDICATING WHAT THOSE ARTICLES ARE.
THE COURT: UH-HUH.
MR. SCHECK: YOU KNOW, THE SUBJECT MATTER. I JUST THINK
IT'S A 352 PROBLEM AT THE VERY LEAST HERE TO CONTINUALLY SAY,
WELL, IT'S --
THE COURT: MR. HARMON, WHAT I'M GOING TO TELL YOU IS OFF
LIMITS IS THIS QUESTION, IS THIS THE SAME DR. BLAKE WHO OBSERVED
--
MR. HARMON: I'LL READ ALL THE AUTHORS' NAMES IN. YEAH.
THE COURT: ALL RIGHT.
ALL RIGHT. LET'S PROCEED.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: OKAY.
I TAKE IT -- WE ARE OVER AT THE SIDE.
MR. HARMON, I TAKE IT YOU HAVE HAD NO OBJECTION TO
ANY OF THE PHOTOGRAPHS THAT MR. SIMS AND MR. SCHECK HAVE
PRESENTED?
MR. HARMON: THEY ARE HANDSOME PHOTOGRAPHS. I COULDN'T
OBJECT TO THEM.
THE COURT: OKAY.
I HAVE BEFORE ME A -- TWO PAGES OF MINIATURIZED -- I
TAKE IT THESE ARE BOARDS. ARE THESE GOING TO BE --
MR. SCHECK: SLIDES.
THE COURT: VIDEO PRESENTATIONS THAT ARE
NO. 1-A THROUGH 8-H.
AND THESE ARE BOARDS WHICH SAY, FOR EXAMPLE, 1-A SAYS
"CROSS-CONTAMINATION FACTORS." 2-B SAYS "DEGRADATION." 3-C SAYS
"HIGH DNA CONTENT VERSUS LOW DNA CONTENT." NO. 4-D SAYS
"DIFFERENT SCENES" AND HAS VARIOUS GRAPHICS, AN AUTOMOBILE AND
THEN TWO RESIDENCES. THERE IS A 5-E, HAS AN EXPLODING
THERMOMETER, PLUS THE --
MR. HARMON: THAT IS WHAT?
MR. SCHECK: THAT IS A -- THE SAME LOGO THAT WAS USED IN A
PREVIOUS RECITATION OF A TEST-TUBE.
THE COURT: WELL, THAT IS -- I THOUGHT YOU WERE TALKING
ABOUT HIGH TEMPERATURE AND DEGRADATION.
MR. SCHECK: NO, NO, NO. THAT IS A REFERENCE SAMPLE TUBE.
THE COURT: WELL, 6-F SAYS "SUSPECT REFERENCE SAMPLES" AND
THEN HAS THE INTERNATIONAL SYMBOLS FOR MAN AND WOMAN. 7-G IS
JUST A SERIES OF NUMBERS. 8-H HAS "AEROSOLS, PAPER, GLOVES,
INSTRUMENTS" AND THEN 9-J COMBINES MANY OF THESE ASPECTS.
MR. SCHECK, I HAVE A PROBLEM WITH THE THERMOMETER.
MR. SCHECK: UMM --
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: YOUR HONOR, I WILL MAKE IT CLEAR THAT THAT IS
A BLOOD VIAL AND THAT WAS A LOGO THAT WAS USED PREVIOUSLY IN ONE
OF OUR EXHIBITS FOR THE BLOOD VIAL.
THE COURT: WELL, MY CONCERN, TOO, IS THAT WE DON'T HAVE AN
EXPLODING BLOOD VIAL OR A SPEWING BLOOD VIAL. THAT IS BEYOND THE
SCOPE HERE.
MR. SCHECK: WELL, THE -- THE WAY THIS QUESTION IS GOING TO
BE FORMED HAS TO DO WITH THE TESTIMONY -- WELL, FIRST OF ALL, THE
-- THE QUESTIONS OF THE WITNESS WILL HAVE TO DO WITH STATEMENTS
IN HIS PROTOCOL AND IN THE AMP-FLP TYPE USER GUIDE AND IN THE
OTHER PUBLICATIONS ABOUT REFERENCE SAMPLES AND TEST-TUBES AND
THEIR PROXIMITY TO EVIDENCE SAMPLES AND RULES ABOUT NOT COMBINING
THEM.
ALSO, THERE IS TESTIMONY IN THE CASE WITH RESPECT TO
GREG MATHESON TESTIFIED THAT OPENING THE TOPS OF REFERENCE TUBES
SHOULD BE DONE WITH CHEM WIPES BECAUSE THEY HAVE SPRAYS THAT COME
WHEN YOU OPEN THE TOP OF THE REFERENCE TUBE, AND HE TESTIFIED TO
THAT WHEN HE WAS TALKING ABOUT THE AMOUNT OF BLOOD.
THE COURT: LET ME ASK, ROCK, WHAT ARE YOUR --
MR. HARMON: WELL, THIS IS ENTERTAINING, BUT IT IS
ARGUMENT. CAN WE BORROW A PHRASE THAT WE WERE TALKING ABOUT A
WHILE AGO?
IT IS ALSO REDUNDANT ARGUMENT. THE WORDS ARE FINE,
ALTHOUGH I THINK THAT IS STILL ARGUMENT.
UP THERE ON THE CHART, SOMETHING THAT ACTUALLY
ILLUSTRATES THE PHENOMENA, THAT IS OKAY, THE DEGRADATION, BUT
3-C, THAT LOOKS LIKE THE SCALES OF JUSTICE AND WE DON'T TALK
ABOUT JUSTICE, BECAUSE IT IS HARD TO TALK ABOUT, BUT THAT JUST
LOOKS LIKE THE SCALES OF JUSTICE. THAT IS A SYMBOL OF SOMETHING
THAT HAS NO PLACE ON THIS CHART. THERE IS A PLACE FOR IT, BUT IT
IS NOT ON THIS CHART.
EVERYBODY KNOWS WHAT A HOUSE AND A TRUCK AND A HOUSE
LOOK LIKE, BUT THE POINT I'M MAKING, ALL THESE TOGETHER IS THAT
YOU CAN JUMBLE THEM UNTIL THEY ARE TOGETHER IN 9-J AND IT LOOKS
LIKE A SUNDAY MORNING CARTOON THING AND SAYS WHOSE NAME IS THIS
SPELLED OUT BY AND THE SYMBOLS, AND I WROTE IN ON 6-E SHOULD PUT
"HOMBRES" AND "MUJERES" BECAUSE THAT LOOKS LIKE THE BATHROOM
SIGNS, SO IT IS MISLEADING BECAUSE WE DON'T WANT PEOPLE TO THINK
THAT IS WHAT THEY HAVE TO DO HERE. IT IS JUST A SUSPECT
REFERENCE SAMPLE.
THE TUBE, I AGREE WITH YOU, THE WHOLE THING IS JUST
AS ARGUMENTATIVE AS THE BOARDS THAT I PUT FORTH THAT YOU KEPT
OUT. I DON'T REALLY DISAGREE WITH YOU, THAT YOU KEPT THESE OUT,
BUT THIS IS JUST ARGUMENT THAT WORDS CAN ILLUSTRATE, BUT I DON'T
KNOW.
MAYBE THERE IS DANGER IF YOU CONNECT THE DOTS ON
THOSE IT WILL SPELL GUILTY. ON 9-J THERE IS PROBABLY SOMETHING
CRYPTIC IN HERE THAT WE ARE NOT AWARE OF, BUT I THINK WORDS AND
CLEAR NON-ARGUMENTATIVE SYMBOLS ARE WHAT IS APPROPRIATE TO THIS
BY THE JURY, BUT NOT THE STUFF THAT YOU ALL COMBINE TOGETHER.
THAT IS 9-J IS CLEARLY ARGUMENTATIVE. IT IS JUST A
COMPILATION OF THINGS THAT MAY OR MAY NOT HAVE ANY APPLICATION TO
THIS CASE.
AND THIS WOULD BE BEAUTIFUL ARGUMENT MATERIAL, JUST
LIKE OUR BOARDS THAT WERE USED FOR THAT POINT, BUT AT THIS POINT
I THINK THAT DAZZLING PEOPLE WITH THESE SLIDES, WHICH MAY OR MAY
NOT BE A BASIS FOR THIS TESTIMONY, YOU KNOW, THIS -- WE MIGHT BE
HAVING THIS DISCUSSION AT A LATER POINT WHEN THEY SAY I'M GOING
TO HAVE A WITNESS WHO IS GOING TO SAY ALL THESE THINGS HAPPENED,
BUT THIS IS CROSS-EXAMINATION OF OUR WITNESSES, AND THESE SYMBOLS
ARE GOING TO BE UP THERE WHETHER OR NOT GARY SIMS ADMITS THAT
THEY ARE FACTORS TO CONSIDER, AND I THINK THAT CHANGES THE
PICTURE COMPLETELY.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
THE COURT: MR. SCHECK.
MR. SCHECK: THESE ARE ALL TAKEN RIGHT OUT OF HIS PROTOCOL
AND THE GUIDES AS PRECAUTIONS, AND ALL THAT THESE SYMBOLS ARE,
ARE VISUAL AIDS, JUST LIKE THE BLOOD DROPS ON THEIR BOARD, ET
CETERA.
IF WE ALREADY USED MOST OF THESE IN PREVIOUS DISPLAYS
-- THE ONLY ONES THAT WE HAVEN'T ARE THE HOUSES AND THE CAR AND
THE MAN AND THE WOMAN WHICH I THINK IN A PIECE OF PAPER -- AND
THERE ARE CERTAIN LIMITATIONS ONE HAS IN TERMS OF CLIP ART, BUT I
THINK THAT THESE ALL ROUGHLY APPROXIMATE WHAT IT IS, AND I WILL
ASK QUESTIONS WITH RESPECT TO THE BLOOD VIAL INDICATING EXACTLY
WHAT IS AT ISSUE.
THOSE ARE THE DQ-ALPHA STRIPS -- PICTURES OF IT I'M
NOT GOING TO INTRODUCE -- THESE ARE JUST THE STRIPS, THE PICTURES
THAT DR. BLAKE TOOK.
THE COURT: OKAY.
I'M GOING TO SUSTAIN THE OBJECTION TO 5-E, THE
EXPLODING THERMOMETER.
MR. SCHECK: CAN WE --
THE COURT: I DON'T THINK THAT IS --
MR. SCHECK: CAN WE TRY TO -- WE HAVE CERTAIN LIMITATIONS
TO OUR CLIP ART.
THE COURT: WELL, LIFE IN THE BIG CITY.
MR. SCHECK: WE WILL TRY TO CHANGE THAT ONE MAYBE TO JUST
--
THE COURT: IF IT IS JUST A TEST-TUBE, THAT IS ONE THING,
BUT --
MR. NEUFELD: WE HAVE A TEST-TUBE.
THE COURT: THAT IS A SPIN ON THE EVIDENCE.
MR. SCHECK: WE HAVE A TEST-TUBE AND WE WILL SUBSTITUTE
THAT.
THE COURT: LET ME SEE IT WHEN WE COME BACK.
MR. HARMON: JUDGE, COULD WE -- THIS HAS HAPPENED
CONSISTENTLY.
CAN WE GET A DISK COPY OF THIS AND CAN WE ALSO GET A
COLOR COPY? WE ASKED HOWARD AND HE SAID IT WOULD TAKE SOME TIME
AND I NOTICE HE IS GONE.
MR. HARRIS: IT HAS ALREADY STARTED TO PRINT.
MR. SCHECK: WE WILL JUST CHANGE THE BLOOD VIAL.
MR. HARMON: THEN I HAVE NO OBJECTION TO THE STRIPS BECAUSE
THEY ARE DOJ RECORD.
MR. SCHECK: I WOULD ACTUALLY MAKE A REQUEST THAT WE --
YOUR HONOR, I WOULD LIKE THEM TO PRODUCE COPIES OF MR. SIMS'
STRIPS OF THE SAME PHOTOGRAPHS.
IF YOU RECALL, THIS ACTUALLY HAPPENED DURING DNA
DISCOVERY WHERE WE GAVE THEM MORE THAN THEY GAVE US IN TERMS OF
PROFICIENCY. I THINK 3000 PAGES WORTH.
THE COURT: UH-HUH.
MR. SCHECK: BUT THE POINT IS, IS THAT WE WERE FORCED TO
RELY ON DR. BLAKE'S PHOTOGRAPHS OF THESE STRIPS.
NOW SOME OF THE INTERPRETATIONS OF THESE STRIPS ARE
GOING TO COME INTO ISSUE AND I WANT TO SEE THEIR PHOTOGRAPHS OF
THE SAME STRIPS, SO THAT I'M NOT PUT IN A POSITION --
THE COURT: ALL RIGHT.
DOES SIMS HAVE THEM WITH HIM? MR. SIMS?
THE WITNESS: YES, YOUR HONOR.
THE COURT: DO YOU HAVE THE PHOTOGRAPHS OF THE PCR STRIPS
IN THIS CASE?
THE WITNESS: YES, I DO HAVE THOSE WITH ME.
THE COURT: ALL RIGHT.
MR. SCHECK: OKAY.
MR. HARMON: JUDGE, NOW THE ONLY PROBLEM IS, YOU KNOW, HE
HAS GOT EVERYTHING. HE HAS GOT HUNDREDS OF THINGS AND SO IT IS
NICE TO HAVE NOTICE BECAUSE HE HAS GOT TO EAT LUNCH; TOO.
WE HAVE EVERYTHING, BUT THE TIMING OF HOW WE GET IT,
IT GETS COMPLICATED, AND THAT IS WHY A COURTESY NOTICE --
MR. SCHECK: I DID.
THE COURT: WELL, IF IT IS NOT TOO MUCH TROUBLE, SEE IF
YOU'VE GOT THE PHOTOS FOR THE PCR STRIPS FOR HERE.
MR. HARMON: FOR WHICH?
MR. SCHECK: THE ONES --
MR. HARMON: CAN I TALK TO THEM ABOUT THEM?
MR. SCHECK: I JUST WANT TO GET JUST THESE COPIES.
THE COURT: OKAY.
MR. HARMON: HAVE THEM DOWN HERE WHEN WE COME BACK.
THE COURT: ALL RIGHT.
WE WILL STAND IN RECESS.
MR. HARMON: OKAY.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT.
WE'RE OVER AT THE SIDEBAR.
WHAT ARE YOU ABOUT TO GO INTO, MR. SCHECK?
MR. SCHECK: I PROPOSE TO ASK A QUESTION IN THIS FORM: IF
YOU HAD INFORMATION THAT -- ONE, THAT A SUSPECT HAD INDICATED
THAT ONE SET OF SAMPLES CONTAINED HIS BLOOD AND YOU WERE
PROCESSING ANOTHER SET OF SAMPLES WHOSE ORIGIN WAS UNKNOWN, WOULD
YOU WANT TO MAKE SURE THAT YOU SEPARATE IT IN EXAMINATION,
CUTTING OF THOSE SAMPLES?
MR. HARMON: THERE'S NO BASIS FOR THAT IN THE EVIDENCE
THAT'S BEEN PRESENTED, YOUR HONOR.
MR. SCHECK: YOUR HONOR, I WOULD LIKE TO ESTABLISH --
MR. HARMON: IMPROPER HYPOTHETICAL.
THE COURT: HOLD ON. I WAS ASKING MR. SCHECK TO BE QUIET
WHILE I HEARD YOUR COMMENT.
MR. HARMON.
MR. HARMON: IT'S AN IMPROPER HYPOTHETICAL. THERE'S NO
EVIDENCE FOR THAT.
MR. SCHECK: YOUR HONOR, I THINK THERE IS.
WE KNOW FROM THE FACTS ALREADY THAT DETECTIVE LANGE
AND DETECTIVE VANNATTER HAD A CONVERSATION WITH MR. SIMPSON AT
1:39 IN THE AFTERNOON WHERE MR. SIMPSON TOLD THEM WHILE AT
ROCKINGHAM THE BLOOD DROPS ON THE -- TRAIL ON THE ROCKINGHAM
DRIVEWAY WERE FROM HIM.
DETECTIVE LANGE INDICATED HE HAD CONVERSATIONS ABOUT
THE EVIDENCE IN THIS CASE WITH MR. MATHESON AND MR. YAMAUCHI AND
MR. FUNG THE NEXT MORNING, THAT MR. FUNG WAS MADE AWARE OF THIS.
AND SO WHAT I WANT TO DO IS JUST ASK THIS QUESTION IN LIMITED
FORM THAT DOESN'T BRING OUT THE STATEMENT JUST AS A PREDICATE FOR
DEVELOPING WHEN ADDITIONAL WITNESSES COME IN.
I THINK WE ALREADY HAVE A GOOD FAITH BASIS FOR THE
RECORD. I WOULD JUST LIMIT IT THAT WAY SO THERE'S NO IMPLICATION
ABOUT A STATEMENT, JUST INFORMATION.
MR. HARMON: THE FORM OF THE QUESTION IS ALSO SOMEWHAT
ARGUMENTATIVE. I MEAN WE HAVE THE RESULTS. IF THEY WANT TO
CONCEDE THAT THESE THINGS WERE TESTED PROPERLY, THEN MAYBE WE CAN
STIPULATE TO THAT.
BUT, YOU KNOW, IT'S THE FORM OF THE QUESTION, "IF YOU
HAD INFORMATION." HE DIDN'T HAVE ANY INFORMATION. HE DIDN'T
ENCOUNTER THAT. YOU'RE ASKING HIM TO SPECULATE WHAT HE WOULD
HAVE DONE. HE WASN'T IN THAT POSITION.
THE COURT: MR. SCHECK, I APPRECIATE YOUR BRINGING THIS TO
THE COURT'S ATTENTION BECAUSE THIS IS OBVIOUSLY A TOUCHY AREA
BECAUSE IT GOES TO STATEMENTS MADE -- ALLEGEDLY MADE BY THE
DEFENDANT TO THE POLICE DETECTIVES.
THE PROBLEM WE HAVE IS, THAT STATEMENT IS NOT BEFORE
THE JURY AT THIS TIME. I -- IN FACT, I DON'T KNOW TO THIS DAY
WHAT MR. SIMPSON IS ALLEGED TO HAVE SAID TO THE POLICE DETECTIVES
OTHER THAN WHAT I HAVE INADVERTENTLY COME ACROSS IN THE NEWS
MEDIA. BUT --
MR. SCHECK: THE ISSUE IS THAT I DON'T WANT TO INTRODUCE IT
RIGHT NOW, BUT IT'S -- WHAT'S IMPORTANT HERE FOR PURPOSES OF THE
DNA EVIDENCE -- AND IT'S A CRITICAL POINT -- IS THAT THESE POLICE
AND LABORATORY TECHNICIANS HAD KNOWLEDGE THAT MR. SIMPSON HAD
SAID THAT THE ROCKINGHAM DROPS WERE HIS, AND THEY PROCESSED THEM
AT THE SAME TIME AS THEY DID THE UNKNOWN SAMPLES, CREATING A
SERIOUS RISK OF CROSS-CONTAMINATION.
THIS IS A CRITICAL POINT OF OUR DEFENSE AS I'M SURE
EVERYBODY IS WELL AWARE, ONE SET BEING DEGRADED AND THE OTHER
SET, PARTICULARLY ITEM NO. 12, WHICH WAS PICKED UP, THE LAST
SERIES OF SWATCHES, FROM INSIDE HIS HOUSE BEING FAR LESS
DEGRADED.
SO THE POINT IS, THERE'S DANGER OF
CROSS-CONTAMINATION. MY FORMULATION OF THIS QUESTION IN THE
HYPOTHETICAL FORM ONLY HAS TO DO WITH WHAT GOOD LABORATORY
PRACTICES WOULD BE, AND SO I WANT TO FORMULATE THE QUESTION IN A
WAY THAT IS AS NEUTRAL AS POSSIBLE IN TERMS OF DRAWING AN
IMPLICATION.
ALL I WANT TO ASK HIM IS IF HE HAD INFORMATION, HE
WOULD HAVE TRIED THIS. BUT I WANTED TO BE SUPER CAUTIOUS; IF YOU
HAD INFORMATION THAT ONE SET OF SAMPLES -- ALL RIGHT -- THAT A
SUSPECT HAD SAID ONE SET OF SAMPLES OR HAD INFORMATION THAT ONE
SET OF SAMPLES CAME FROM A SUSPECT AND ANOTHER WERE FROM AN
UNKNOWN ORIGIN, WOULD YOU TAKE SPECIAL CARE TO EXAMINE, PROCESS
THOSE SEPARATE.
THAT IS THE QUESTION I WANT TO ASK HIM.
MR. HARMON: THAT'S ASKED AND ANSWERED.
THIS MIGHT BE -- THIS MIGHT BE OKAY NEXT WEEK WHEN
COLLIN YAMUICHI TESTIFIES. I DON'T THINK THERE'S A BASIS FOR
ASKING HIM --
THE COURT: AT THIS POINT, AT THIS TIME, I'M GOING TO
SUSTAIN THE OBJECTION.
OKAY.
OFF THE RECORD.
(AN OFF THE RECORD DISCUSSION WAS HELD AT THE BENCH.)
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WHAT IS THE POINT HERE, BARRY?
MR. SCHECK: THE POINT IS THAT WE -- CELLMARK HAS THE DATA,
THE PROSECUTION HAS THE DATA, AND I ASK YOU TO TAKE IT SUBJECT TO
CONNECTION AND THAT WE WILL PRODUCE THE WEIGHTS THAT EVERYBODY
WAS PRESENT FOR, OKAY?
IN ORDER TO GET WHAT THIS -- TO GET OUT FROM THIS
WITNESS A PROJECTION OF THE TOTAL AMOUNT OF DNA IN EACH OF THESE
SAMPLES, BY METHODS THAT HE ALREADY DESCRIBED TO THIS COURT IN A
GRIFFIN HEARING, STANDARD METHODS IN THE FIELD FOR TRYING TO
PROJECT TOTAL WEIGHT OF DNA, IF YOU RECALL, WE DID THAT AT THE
SPLIT HEARING, EXACTLY THE SAME PROCEDURES WHEN HE WAS TRYING TO
PROJECT HOW MUCH WOULD BE AVAILABLE FOR SPLITS, ET CETERA.
THE COURT: BUT PART OF THE PROBLEM, THOUGH, IS THAT YOU
DON'T KNOW THE UNIFORMITY OF THE MATERIAL ON THE SWATCHES.
MR. SCHECK: I UNDERSTAND THAT.
THE COURT: THAT IS OUR PROBLEM.
MR. SCHECK: MY POINT IS THAT -- THAT THAT IS SOMETHING
THAT THEY CAN ASK ON CROSS-EXAMINATION OR HE CAN QUALIFY, BUT I
THINK THAT FOR THESE PURPOSES, PARTICULARLY SINCE THAT CAN'T BE
MEASURED, IT IS A VERY SCIENTIFIC ASSUMPTION, AND THE WAY HE DID
IT IN THE GRIFFIN HEARING -- AND IF YOU WANT I WILL LAY THE
FOUNDATION -- THE WAY PEOPLE IN THIS FIELD WILL DO IT IS TO MAKE
ASSUMPTION OF RANDOM DISTRIBUTION.
IF WE MAKE AN ASSUMPTION OF RANDOM DISTRIBUTION, WHAT
WOULD YOU PROJECT THE AMOUNT TO BE? AND THEN THEY CAN ARGUE
LATER THAT, WELL, IT MAY HAVE HIM BEEN UNEVEN, ET CETERA, MAYBE
THERE IS MORE.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
THE COURT: DO WE HAVE SOMEWHERE A TOTAL EXTRACTED PER ITEM
BY ALL THE LABS INVOLVED?
MR. SCHECK: YES.
MR. HARMON: YOU KNOW, THIS RAISES AN INTRIGUING POINT THAT
I KNOW IT IS ABOUT TIME TO BURST THE BALLOON ON THIS, AND THAT IS
RECIPROCAL DISCOVERY.
I AM AWARE THAT THESE THINGS HAVE BEEN REVIEWED IN
CAMERA. MR. SCHECK SAYS THEY ARE GOING TO TIE IT UP. THEY ARE
GOING TO PRESENT IT.
WE HAVE ALMOST NOTHING FROM DEFENSE EXPERTS IN THIS
CASE AND I THINK IT IS ABOUT TIME FOR THEM TO START GIVING IT UP
RATHER THAN TO TELL YOU, WHICH I'M SURE THEY HAVE IN CAMERA, THAT
THIS WOULD UNDERMINE OR COMPROMISE THEIR ABILITY TO EFFECTIVELY
CROSS-EXAMINE AND THAT IS NOT --
I DON'T KNOW WHAT HE IS TALKING ABOUT. I DON'T KNOW
EVERYTHING ABOUT THEIR CASE, BUT I THINK THAT IS WHAT IS GOING ON
AND IT IS TIME TO CALL A HALT TO THE PROCEEDINGS AND FOR SOMEBODY
TO START TURNING OVER THEIR RECIPROCAL DISCOVERY.
I WOULD LIKE TO KNOW WHAT THE OFFER OF PROOF IS. I
WOULD LIKE TO KNOW WHO THE WITNESS IS AND I WOULD LIKE TO SEE THE
DOCUMENTATION FOR THE ASSERTION THAT HE MADE A COUPLE MINUTES
AGO.
AND UNLESS AND UNTIL THAT HAPPENS, I THINK THE COURT
NEEDS TO DRAW A HALT TO THIS AND TURN THIS BACK INTO A FAIR
PROCEEDING WHERE WE ARE ENTITLED TO HAVE WHAT WE SHOULD HAVE HAD
BEFORE THE TRIAL BEGAN, YOUR HONOR.
THE COURT: WHAT IS THE BASIS OF YOUR OFFER THAT WE KNOW
WHAT THE TOTAL EXTRACTION IS?
MR. SCHECK: THE WAY THAT THIS HYPOTHETICAL IS PROCEEDING
IS THAT WE ARE -- WE KNOW MANY SWATCHES THERE ARE, THEY KNOW HOW
MANY SWATCHES. THE DATA COMES FROM THEM.
THE WEIGHTS -- BECAUSE I DON'T THINK THERE IS ANY
RECIPROCAL DISCOVERY PROBLEM AT ALL, JUST LIKE THE PICTURES, THE
STIPULATIONS, THAT IS, THESE WEIGHTS WERE DONE BY DR. LEE AND DR.
BLAKE AND CELLMARK TOGETHER. EVERYBODY PUT THE SWATCHES ON THE
SCALE --
THE COURT: UH-HUH.
MR. SCHECK: -- AND MEASURED THEM. EACH WROTE DOWN WHAT
WEIGHT, AND THAT IS ALL I'M WORKING WITH, THE NUMBER OF
MILLIGRAMS IN THE SWATCHES, THE NUMBER OF SWATCHES.
THE COURT: BUT I THOUGHT YOU TOLD ME THAT THIS WAS A
COMPILATION SOMEWHERE OF THE TOTAL EXTRACTIONS FROM ALL THESE
ITEMS.
MR. SCHECK: YEAH, EXISTS IN THE NOTES FROM CELLMARK AND
>FROM DOJ IS HOW MUCH THEY EXTRACTED FROM -- IN OTHER WORDS, HE
HAS HIS SLOT-BLOT CALCULATIONS.
THE COURT: UH-HUH.
MR. SCHECK: SO WHAT WE ARE DOING IN THESE HYPOTHETICALS
AND WHAT HE IS AGREEING TO IS IN THE SAME METHOD THAT WAS APPLIED
AT THE GRIFFIN HEARING, IS THAT HE IS SAYING, IF WE ASSUME RANDOM
DISTRIBUTION AND WE LOOK AT THE AMOUNT OF WEIGHT OF EACH SWATCH
AND THE NUMBER OF SWATCHES, ALL RIGHT, AND THE WEIGHT -- THE
PERCENTAGE OF WEIGHT IS THE SIMPLEST WAY TO DO IT, AND THEN WE
LOOK AT HIS DNA EXTRACTION AND PROJECT THE TOTAL DNA EXTRACTION,
THAT IS AN ESTIMATE OF HOW MUCH HUMAN DNA WAS IN EACH OF THESE
SAMPLES.
THE COURT: WELL, I'M NOT GOING TO ASSUME -- I'M GOING TO
SUSTAIN THE OBJECTION AT THIS POINT BECAUSE WE CAN'T ASSUME A
RANDOM OR UNIFORM DISTRIBUTION.
MR. SCHECK: IF I ASK HIM A FOUNDATIONAL QUESTION WHETHER
OR NOT TO THAT --
MR. HARMON: WHILE I DID NOT OBJECT, I WOULD LIKE TO MOVE
TO STRIKE THE ENTIRE LINE OF QUESTIONING. I DIDN'T MAKE A TIMELY
OBJECTION.
THE COURT: I'M GOING TO SUSTAIN A FOUNDATIONAL OBJECTION
AT THIS POINT BECAUSE I DON'T THINK YOU CAN ASSUME ANY UNIFORM
DISTRIBUTION.
****
Sidebars from May 19, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: ALL RIGHT.
WE ARE OVER AT THE SIDE BAR. WHERE ARE YOU GOING
WITH THIS?
MR. SCHECK: I HAVE A QUESTION THAT I'M FEARFUL NIGHT OPEN
A DOOR, SO I WANT TO EXPLAIN WHAT THE ISSUES ARE AND I'M GOING TO
SEEK A PRELIMINARY RULING FROM THE COURT TO SEE WHETHER I SHOULD
GO INTO THIS AREA OR NOT.
THERE WERE -- I THINK THERE WERE TWO -- THERE WAS A
SPECIMEN TAKEN FROM NO. 11, THE WIRE, AT ROCKINGHAM.
THE COURT: UH-HUH.
MR. SCHECK: THERE WAS SOME SPECIMEN SWATCHES THAT WERE
LABELED NO. 11 SPECIMEN AND THEN THERE WERE SWATCHES TAKEN FROM
THE WIRE THAT WERE LABELED CONTROL.
WHEN MR. SIMS EXAMINED THESE, BOTH OF THEM APPEAR TO
BE GRAYISH WHITEISH SWATCHES; HOWEVER, HE PERFORMED A -- WHAT
THEY CALL AN OTOLIDINE TEST WHICH IS ANOTHER FORM OF THE
PRESUMPTIVE BLOOD TEST, AND WHEN HE PERFORMED THAT PRESUMPTIVE
BLOOD TEST HE GOT A POSITIVE FINDING FOR THE SWATCH THAT WAS IN
THE CONTROL BINDLE, BUT HE GOT A NEGATIVE FINDING FOR THE SWATCH
THAT WAS IN THE SPECIMEN BINDLE.
THE QUESTION THAT I WANT TO ASK HIM IS SIMPLY WAS
THERE -- WHEN HE WAS EXAMINING THE SAMPLE, THE SPECIMENS, BINDLES
>FROM LAPD, WAS THERE AN ITEM WHERE HE HAD CONCERNS THAT THE
CONTROL SAMPLE HAD BEEN PUT IN THE SPECIMEN BINDLE AND THE
SPECIMEN HAD BEEN PUT IN THE CONTROL BINDLE.
NOW, THERE WERE NO OTHER TESTS THAT WERE DONE OR
COULD BE DONE ON THESE SWATCHES TO CONFIRM WHETHER OR NOT IT WAS
BLOOD.
THE COURT: OKAY.
MR. SCHECK: NOW, IF I ASK HIM THOSE QUESTIONS AND HE
ANSWERS, YES, I HAD A CONCERN AND MY CONCERN WAS IN NO. 11
BECAUSE THE INFORMATION I HAD WAS THAT THERE WAS -- IT WAS A
CONCERN THAT THEY HAD MIXED UP PUTTING THE SPECIMEN IN THE
SPECIMEN BINDLE AND THE CONTROL IN THE -- THE SPECIMEN IN THE
CONTROL BINDLE AND VICE VERSA, IS THAT GOING TO OPEN THE DOOR TO
ALLOWING THEM TO ASK OR EVEN HAVING THE WITNESS SAY THAT THEY
PERFORMED A PRESUMPTIVE TEST ON THE SWATCH INDICATING IT WAS
BLOOD, EVEN THOUGH THERE IS NO CONFIRMATORY TESTS ON THIS BLOOD.
THE COURT: MR. HARMON.
MR. HARMON: WELL, I DON'T THINK IT WILL OPEN A DOOR, IT
WILL BLOW IT OFF THE HINGES AND KNOCK OFF THE DEAD BOLT, BUT
OTHER THAN THAT, OTHER THAN BEING BEYOND THE SCOPE OF DIRECT
EXAMINATION, IT CLEARLY ALLOWS US TO GO BACK TO THE POSITIVE
PHENOLPHTHALEIN ON THE SINK DRAIN, THAT IN SPITE OF ALL THE OTHER
DOOR OPENINGS THAT THEY DID BEFORE YOU REFUSED TO LET US GET
INTO, SO BEYOND THE SCOPE AND BLOWING THE DOOR OFF THE HINGES ARE
TWO THINGS TO KEEP IN MIND, YOUR HONOR.
MR. SCHECK: CERTAINLY NOT BEYOND THE SCOPE ON THE ISSUES
OF CONTROLS, BUT -- AND THE ABILITY TO USE THEM.
MY CONCERN REALLY WAS FOR THE COURT TO MAKE A RULING.
I CERTAINLY EXPECTED MR. HARMON TO SAY IT WOULD OPEN THE DOOR.
MY CONCERN IS WHETHER THE COURT BELIEVES IT WOULD OPEN THE DOOR.
I WOULD PROPOSE TO ASK THE WITNESS JUST THE QUESTION
DID YOU HAVE REASON TO BELIEVE THAT THERE WAS A MISPACKAGING OF
CONTROL SPECIMENS WITH RESPECT TO ONE ITEM AND WHICH ONE WAS IT?
NO. 11?
THE COURT: ALL RIGHT.
THE PROBLEM, THOUGH, IS FIRST OF ALL, THAT THAT OPENS
UP I THINK LEGITIMATELY GOING INTO WHAT WAS DONE -- THE
PROSECUTION WOULD BE ENTITLED TO EXPLAIN WHAT ACTUAL TESTING WAS
DONE ON THAT PARTICULAR SWATCH AND WHAT THE RESULTS WERE, WHICH I
THINK WE ALL AGREE ARE NOT REALLY RELEVANT TO THE CIRCUMSTANCES
OF THIS PARTICULAR CASE, SO LOOKING AT THE TOTALITY OF THE CASE
HERE, THE PROBATIVE VALUE OF WHAT YOU ARE OFFERING AND THE
CONSUMPTION OF THE TIME THAT WOULD BE TAKEN UP BY THE PROSECUTION
THEN EXPLAINING WHAT THIS IS, I'M GOING TO SUSTAIN THE OBJECTION
UNDER 352.
ALSO NOTICE AND GIVE YOU CAUTION THAT IF YOU GO INTO
IT, THAT THEN WE ARE GOING TO GET INTO WHAT THE PRESUMPTIVE
TESTING WAS, NOT NECESSARILY THE BATHROOM STAIN -- I MEAN THE
BEDROOM -- BATHROOM DRAIN, BUT CERTAINLY ON THE WIRE ITSELF.
MR. COCHRAN: OKAY.
MR. SCHECK: OKAY.
SO INCIDENTALLY JUST ON, YOU KNOW -- THANK YOU. I
JUST WANTED TO MAKE SURE.
THE COURT: ALL RIGHT.
MR. SCHECK: THE OTHER THING, JUST TO -- PLEASE DON'T HOLD
ME COMPLETELY TO THIS, BUT JUST TO IN TERMS -- I KNEW YOU
MENTIONED UNDUE CONSUMPTION OF TIME. I THINK I HAVE A PRETTY
FIRM GRASP ON HOW LONG THIS WITNESS IS GOING TO TAKE ME IN FEAR
OF HIS VACATION.
I WILL BE WITH HIM THIS MORNING AND I THINK I WILL BE
WITH HIM PROBABLY MONDAY MORNING, MAYBE NOT THE WHOLE MORNING,
BUT MONDAY MORNING. THAT IS MY BEST ESTIMATE.
THE COURT: OKAY.
MR. SCHECK: THEN THAT IS IT, SO JUST TO GIVE YOU A SENSE.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
THIS AFTERNOON, WE HAVE SCHEDULED AMONGST OTHER
THINGS A CONCLUSION OF THE HEARING ON THE AUTOPSY PHOTOGRAPHS.
MR. COCHRAN, YOU HAD SOMETHING YOU WANTED TO SAY?
MR. COCHRAN: YES, YOUR HONOR.
AS I UNDERSTAND IT, MR. SHAPIRO AND MR. UELMEN AND I
GUESS REPRESENTATIVES FROM THE D.A.'S OFFICE WILL, AMONG OTHER
THINGS, BE GOING OVER PHOTOGRAPHS OF THE AUTOPSY PROCEDURES IN
THIS CASE. AND I HAVE DISCUSSED IT WITH MR. SIMPSON, AND IT'S HIS
DESIRE TO NOT BE PRESENT, HE WAIVE HIS APPEARANCE.
AND HE HAS ASKED THAT THOSE PHOTOGRAPHS, IF THEY'RE
GOING TO BE DISPLAYED, THAT THE COURT WOULD CUT THE FEED, WHICH
I'M SURE YOU WILL BE DOING ANYWAY. BUT HE WOULD LIKE TO GO BACK
TO THE JAIL AT THIS POINT.
THE COURT: ALL RIGHT.
ANY COMMENT?
MS. CLARK: NO.
THE COURT: ALL RIGHT.
THE COURT HAS NO OBJECTION IF HE WANTS TO WAIVE HIS
APPEARANCE, AND I WILL ACCEPT MR. COCHRAN'S REPRESENTATION AND
MR. SHAPIRO'S REPRESENTATION THAT YOUR CLIENT WAIVES.
****
Sidebar from May 22, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WHAT IS UP?
MR. SCHECK: I GAVE MR. HARMON, BEFORE THE BREAK, A
PROPOSED CHART THAT LISTS THE COMBINATIONS OF GENOTYPES THAT CAN
OCCUR BETWEEN TWO PEOPLE WHEN YOU COMBINE IT WITH MR. SIMPSON'S
GENOTYPE ON THE DQ-ALPHA SYSTEM IN STAIN 305.
IN OTHER WORDS, IT IS LITERALLY JUST A LIST OF ALL
THE POSSIBLE GENOTYPES.
AND I WANTED TO USE THAT WITH THE WITNESS, AND I GAVE
IT TO MR. HARMON. THE WITNESS HAS LOOKED AT IT. HE HAS EVEN
MADE SOME NOTES ON THIS PARTICULAR COPY.
AND I THOUGHT WHILE THE JURY WAS LOOKING AT THE
PHOTOGRAPH, IF MR. HARMON HAS ANY OBJECTIONS TO IT, WE COULD GET
THOSE OUT OF THE WAY.
MR. HARMON: I THINK MR. SIMS DISAGREES THAT THAT, BASED ON
-- THIS IS WHERE WE GET INTO THE WHOLE MIXTURE BUSINESS. HE
DISAGREES, BASED ON HIS RESULTS FROM 305, THAT THE LIST IS AS
FULL AS THAT LIST IS.
AND SINCE HE IS THE ONLY ONE IN THE CHAIR, THAT IS
THE OBJECTION. IT IS MISLEADING.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MR. SCHECK: WELL, THE -- THE -- THIS IS A VERY SIMPLE SET
OF ALTERNATIVES. THAT IS TO SAY THAT CALLS WERE MADE ON THE
PRESENCE OF MR. SIMPSON'S GENOTYPE, THE 1.1, 1.2.
AND ON THEIR BOARD THEY LIST, YOU KNOW, THE GENOTYPES
PRESENT THAT ARE CONSISTENT WITH VARIOUS INDIVIDUALS, AND ALL
THAT THIS LIST DOES IS TAKE THE ALTERNATIVE COMBINATIONS THAT ONE
CAN HAVE IF YOU STARTED WITH A 1.1, 1.2 AND ASSUME THAT THIS IS
THERE AND THEN LOOK AT ALL THE OTHER DIFFERENT POSSIBLE
COMBINATIONS.
THIS IS EXACTLY WHAT WE DID WITH DR. COTTON BEFORE,
SO I JUST WANTED TO, SINCE IT IS A LONGER LIST THAN THE ONE WE
USED BEFORE AND IT WOULD SAVE TIME TO HAVE ALL OF THEM PRINTED
OUT, I JUST DID THAT.
I MEAN, I DON'T THINK IT IS IN ANY WAY EXCEPTIONAL,
THAT JUST AS A SHEAR MATHEMATICAL CALCULATION, THOSE ARE ALL THE
POSSIBILITIES.
MR. HARMON: THE ONLY PROBLEM, HE IS NOT A SHEAR
MATHEMATICIAN; HE'S A FORENSIC SCIENTIST.
RELATIVE INTENSITIES OF DOING STRIP DOTS AND D1S80
BANDS AND HE INTERPRETS THESE THINGS.
MR. COCHRAN: JUROR NO. 11 HAS IT NOW.
THE COURT: ALL RIGHT.
MR. HARMON: AND SO IT IS NOT -- IF THEY WANT TO CALL THE
WITNESS, THAT IS INACCURATE BASED ON MR. SIMS' REVIEW OF THE
ACTUAL DATA, NOT JUST BLINDLY HIM SETTING UP ALL THE
POSSIBILITIES, BECAUSE THAT IS NOT WHAT THESE FORENSIC SCIENTISTS
HAVE DONE.
THE COURT: WELL, AT THIS POINT, MR. SCHECK, WHY DON'T YOU
SEE IF YOU CAN LAY A FOUNDATION FOR MR. SIMS' ABILITY TO TELL US
WHAT THE POSSIBLE COMBINATIONS ARE.
MR. SCHECK: OKAY.
MR. COCHRAN: JUDGE --
THE COURT: THE OTHER PROBLEM I HAVE WITH THIS IS THAT YOU
NEED TO STATE WHAT THE BEGINNING COMBINATION IS BEFORE --
MR. COCHRAN: CAN I SAY SOMETHING ON AN UNRELATED MATTER,
ON A DIFFERENT MATTER?
THE COURT: YES.
MR. COCHRAN: WITH REGARD TO THE BRONCO -- TO THE BRONCO --
TO THE BRONCO AND THE CHAIN OF CUSTODY OF THE BRONCO, SUBJECT TO
-- CAN HE MAKE AN OFFER OF PROOF WHAT HE EXPECTS THE EVIDENCE TO
SHOW WITH MERAZ AND OTHERS AND PEOPLE GETTING IN AND OUT SO THAT
WE CAN ASK THOSE QUESTIONS SUBJECT TO LINKING UP?
THE COURT: NO. HE GOT HIS CHAIN OF CUSTODY QUESTION IN
AND OUT, BUT HE WAS MAKING A -- HIS QUESTION WAS ASSUMING CERTAIN
LEGAL IMPLICATIONS THAT WEREN'T THERE.
MR. SCHECK: YOU MEAN THAT WAS A BAD WORD?
THE COURT: IT IS NOT A BURGLARY UNDER CALIFORNIA LAW.
MR. COCHRAN: TRESPASS WOULD BE A BETTER WORD.
THE COURT: NO. WE HAVE A VERY SPECIFIC STATUTORY
DEFINITION OF AUTO BURG.
MR. COCHRAN: TWO OF US AREN'T TALKING.
SO CAN HE THEN REPHRASE THAT AND PUT IT IN A
DIFFERENT CONTEXT OTHER THAN --
THE COURT: I THINK WE HAVE ALREADY GONE THROUGH THAT, MR.
COCHRAN.
MR. COCHRAN: I THOUGHT YOU DID ALLOW THE QUESTION WITH
REGARD TO -- YOU STRUCK THE THING -- YOU SUSTAINED THE OBJECTION
REGARDING BURGLARY. YOU ALLOWED THE QUESTION REGARDING CHAIN OF
CUSTODY, BUT I THOUGHT HE MIGHT BE ABLE TO USE -- INSTEAD OF
USING THE WORD "BURGLARY," THERE SEEMS TO BE ONE MORE QUESTION
THAT MIGHT BE APPROPRIATE.
THE COURT: WE HAVE SPENT ENOUGH TIME ON THAT.
MS. CLARK: WHILE WE ARE UP THERE AND WAITING FOR THE JURY
TO DO THEIR THING, MR. COCHRAN AND I WANTED TO ADDRESS THE COURT
ON THE MATTER OF THIS WEEKEND, THE TIMING, WHAT DAY, IF ANY, WAS
GOING TO BE TAKEN OFF. TUESDAY?
MR. COCHRAN: CAN WE SEE YOU RIGHT AT THE BEGINNING OF
LUNCH?
THE COURT: NO, NO, I DON'T HAVE TIME.
WELL, GIVEN THE JURY'S DESIRE TO WORK ON A FULL DAY
SATURDAY, WE ARE JUST GOING TO --
MR. COCHRAN: HALF DAY SATURDAY.
THE COURT: WE ARE GOING TO BREAK AT NOON ON THE 26TH AND
RECONVENE AT NINE O'CLOCK ON THE 30TH.
MS. CLARK: WHICH IS TUESDAY?
MR. COCHRAN: TUESDAY.
MS. CLARK: WHICH MEANS NO DAY OFF?
THE COURT: CAN'T DO IT. CAN'T DO IT.
MR. COCHRAN: OFF THE RECORD.
(DISCUSSION HELD OFF THE RECORD.)
