Xref: world alt.fan.oj-simpson.transcripts:106 Newsgroups: alt.fan.oj-simpson.transcripts Path: world!uunet!pipex!news.sprintlink.net!noc.netcom.net!netcom.com!myra From: myra@netcom.com (Myra Dinnerstein) Subject: SIDEBARS - GARY SIMS - Part 1 Message-ID: Organization: NETCOM On-line Communication Services (408 261-4700 guest) Date: Fri, 26 May 1995 04:46:14 GMT Approved: myra@netcom.com Lines: 1005 Sender: myra@netcom13.netcom.com 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.)