ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. ALL THE PARTIES ARE PRESENT. WE HAVE A NUMBER OF BOARDS APPARENTLY THAT ARE GOING TO BE USED. MR. NEUFELD, YOU HAD SOME OBJECTIONS TO SOME OF THE BOARDS?
YOUR HONOR, AS YOU MAY RECALL, THERE WAS A RULING BY YOUR HONOR THAT THE LUMINAL TESTING AND OTHER PRESUMPTIVE TESTS WOULD NOT BE ADMISSIBLE AS EVIDENCE FOR THE PRESENCE OF BLOOD IN THIS CASE, AND ONE OF THE BOARDS -- UNLESS -- I'M SORRY -- UNLESS THERE'S INDEPENDENT CONFIRMATORY EVIDENCE OF ONE SORT OR ANOTHER. ONE OF THE BOARDS DEPICTS MR. FUNG STANDING NEXT TO A DRAIN IN THE SINK HOLDING UP A Q-TIP WITH A PINK COLOR ON IT TO SUGGEST THAT THIS WAS A POSITIVE RESULT FROM A PHENOLPHTALEIN TEST FOR PRESENCE OF BLOOD. NUMBER ONE, THERE WAS NO CONFIRMATORY TEST DONE EITHER OF THOSE ITEMS. NUMBER TWO, AS IT'S BEEN ALREADY BROUGHT OUT TO THE COURT, I THINK WAS THE BASIS FOR THE COURT'S RULING, THERE ARE MANY THINGS THAT COULD TEST POSITIVE UNDER THOSE CIRCUMSTANCES. PARTICULARLY FOR THE TWO DRAINS, YOUR HONOR, THERE IS A VAST BODY OF LITERATURE WHICH SUGGESTS THAT JUST NORMAL BACTERIA AND OTHER MICROORGANISMS, THE KINDS OF THINGS THAT COLLECT IN WET DRAINS AND DAMP DRAINS WOULD TEST POSITIVE, AND IT JUST HAS NO BASIS BEING INTRODUCED OR BROUGHT INTO THIS CASE AT THIS TIME. THE CORRECT PROCEDURE WOULD HAVE BEEN TO TAKE THE CONTENTS OUT OF THOSE DRAINS AND BRING THEM BACK TO THE LABORATORY AND DO SOME KIND OF TEST TO CONFIRM THE PRESENCE OF BLOOD OR TO REJECT THE PRESENCE OF BLOOD, AND TO OUR KNOWLEDGE, THAT WAS NEVER DONE. AND I BELIEVE A LOT OF THIS YOU ALREADY KNOW ABOUT FROM YOUR INITIAL RULING. SO I WOULD SIMPLY ASK THE COURT TO INSTRUCT THE PEOPLE TO REMOVE THOSE TWO PHOTOGRAPHS FROM THE BOARD.
YES. SOMEBODY WANT TO GIVE MR. FAIRTLOUGH A HAND HERE SO WE DON'T WASTE ALL OUR TIME?
YES, YOUR HONOR. IT'S THIS PHOTOGRAPH HERE (INDICATING) WHICH DOESN'T HAVE A NUMBER ON THE PHOTOGRAPH. SO I CAN'T SAY FOR THE RECORD, BUT IT'S IN THE LOWER RIGHT-HAND CORNER AND IT'S -- HE'S HOLDING UP A Q-TIP NEXT TO A -- THE DRAIN IN THE SINK. I WOULD ALSO POINT OUT, YOUR HONOR, THAT THE Q-TIP ITSELF HAS A REDDISH COLOR WHICH WOULD SUGGEST BLOOD, BUT IT'S NOT. THE REDDISH COLOR IS THE CHEMICAL REACTION FROM THE HYDROGEN PEROXIDE. SO IT'S EVEN MORE PREJUDICIAL FOR THAT REASON AS WELL, YOUR HONOR. SO IT'S -- IT'S THE DRAIN SHOT HERE (INDICATING), AND THEN THERE'S A SECOND DRAIN SHOT AS YOU CAN SEE IN THE LOWER -- THERE'S TWO DRAIN SHOTS ACTUALLY IN THE LOWER LEFT-HAND CORNER, AND I WOULD ASK THAT ALL THREE OF THOSE BE TAKEN OUT. I -- NUMBER 14, WHICH IS STRAIGHT DOWN AT THE BOTTOM OF THE DIAGRAM, IS IN A DIFFERENT CATEGORY BECAUSE IN 14, THEY ACTUALLY DID DO FOLLOW-UP TESTING AT THE LABORATORY, AND SO I THINK NUMBER 14 WOULD FIT WITHIN YOUR HONOR'S EXCEPTION. BUT THE DRAIN PICTURES DO NOT.
WELL, FIRST OF ALL, YOUR HONOR, IT WOULD BE NICE IF COUNSEL WOULD HAVE GIVEN US SOME NOTICE AS TO SPECIFICALLY WHAT HE HAD TO OBJECT TO ON THIS BOARD SINCE WE HAVE ALREADY PLOTTED OUT WHAT OUR DIRECT EXAMINATION IS GOING TO BE, AND AS THE COURT CAN NOW TELL, IT DOES INVOLVE PRESENTATION OF EVIDENCE THROUGH THESE BOARDS. AS TO THE PHENOLPHTALEIN TEST RESULTS, I DID NOT BRING DOWN MY LEGAL NOTEBOOK BECAUSE AGAIN, I DID NOT KNOW THAT THEY WERE GOING TO ADDRESS THIS ONE SPECIFICALLY. WHAT I WOULD SAY IS THIS PRELIMINARILY. FIRST OF ALL, BOTH SIDES HAVE BEEN INTRODUCING PHENOLPHTALEIN TESTING THROUGHOUT THE TRIAL IN FRONT OF THE JURY LEFT AND RIGHT. I POINT THAT OUT TO THE COURT, AND THAT'S WHY WE ARE A LITTLE BIT SURPRISED BY COUNSEL'S NOW OBJECTING TO IT WHEN I THINK BOTH SIDES ELICITED THAT KIND OF EVIDENCE FROM THE DETECTIVES. THE OTHER THING THAT I'D SAY IS THAT THE COURT DID RULE ON THE LUMINAL TEST. I DON'T RECALL THE COURT MAKING ANY RULING ON PHENOLPHTALEIN. THERE IS A DIFFERENCE BECAUSE THE PHENOLPHTALEIN TEST IN THIS CASE IS ACTUALLY A TWO-STAGE PROCESS WHICH INVOLVES THE USE OF PHENOLPHTALEIN AND THEN THE ADDITION OF HYDROGEN PEROXIDE. SO IT IS MORE SPECIFIC THAN ANY OF THE OTHER PRESUMPTIVE BLOOD TESTS INCLUDING LUMINAL. SO THE COURT'S RULING ON ONE WOULD NOT HAVE ANY APPLICABILITY TO THE OTHER. AND FINALLY IN THE CASE OF PEOPLE VERSUS COLEMAN -- AND AGAIN, I DIDN'T BRING DOWN MY LEGAL NOTEBOOK, BUT IT'S A CALIFORNIA SUPREME COURT CASE -- THE CALIFORNIA SUPREME COURT DISCUSSED THE ISSUE OF PRESUMPTIVE BLOOD TESTING. IT SAYS THAT IT DOES COME IN, BUT THERE HAS TO BE SOME EVIDENCE AS TO WHAT KIND OF A TEST YOU'RE TALKING ABOUT. IN THAT CASE, A POLICE OFFICER, WHO WAS NOT A CRIMINALIST, USED SOMETHING THAT WAS CALLED A HEME STICK, AND HE DIDN'T REALLY KNOW WHAT IT WAS AND THE SUPREME COURT DIDN'T KNOW WHAT IT WAS BECAUSE THERE WASN'T ANYTHING IN THE RECORD; AND THEY SAID THAT ALTHOUGH IN CALIFORNIA THERE IS A VERY LENGTHY HISTORY -- AND THEY CITED SEVERAL MUCH EARLIER CASES OF FORENSIC BLOOD TESTING OR PRESUMPTIVE BLOOD TESTING COMING IN -- THAT YOU HAD TO HAVE SOME EVIDENCE AS TO WHAT THE TEST WAS SO THAT THE COURT COULD DETERMINE WHETHER IT WAS ONE OF THE TESTS OR ONE OF THE NATURES -- NATURE OF TESTS THAT HAVE BEEN ALLOWED IN PREVIOUS CASES AND HAVE BEEN AROUND FOR A WHILE. SO I THINK THAT THE ISSUE IS PRETTY DISPOSITIVELY RESOLVED IN THE STATE OF CALIFORNIA BY OUR SUPREME COURT.
YOUR HONOR, AGAIN, AS I SAID, I DIDN'T BRING DOWN MY LEGAL NOTEBOOK BECAUSE I DIDN'T KNOW SPECIFICALLY THAT WE WERE GOING TO ADDRESS THIS. PERHAPS I COULD CALL UP AND HAVE SOMEONE --
DO YOU ANTICIPATE GETTING TO THIS BOARD BY THE CLOSE OF BUSINESS -- BY THE CLOSE OF OUR SESSION THIS MORNING?
I DON'T THINK I ANTICIPATE GETTING TO THIS BOARD BY THE CLOSE OF BUSINESS, YOUR HONOR, THIS MORNING. BUT I DO ANTICIPATE POSSIBLY DISCUSSING OTHER PHENOLPHTALEIN TESTS SUCH AS ON THE BRONCO. NOW, I DON'T KNOW WHETHER THE DEFENSE HAS ANY OBJECTION TO THOSE. IN FACT, I THINK THAT WAS ALREADY ELICITED.
MY RECOLLECTION OF OUR LUMINAL TESTING IS THAT WE DID NOT DISCUSS PHTALEIN TESTING, PHENOLPHTALEIN TESTING. ALL RIGHT. MR. NEUFELD.
I'M SORRY. YOUR HONOR, WE'RE NOT OPPOSED TO A REFERENCE TO THE FACT THAT PHENOLPHTALEIN TESTING WAS DONE. WE'RE OPPOSED TO THEM INTRODUCING ANY OF THE RESULTS OF THAT PHENOLPHTALEIN TESTING. THAT'S THE DIFFERENCE HERE. TO SIMPLY SAY THAT THEY TESTED VARIOUS ITEMS, I MEAN THAT GOES WITHOUT SAYING. IT'S ONE OF THE THINGS THEY DID. ONE OF THE -- I DON'T UNDERSTAND THE GENTLEMAN'S POINT ON THE ISSUE OF THE POWER OF THIS PRESUMPTIVE TEST. IT IS WIDELY KNOWN IN THE LITERATURE THAT THIS PARTICULAR TEST IS NO MORE POWERFUL OR SENSITIVE BECAUSE IT'S A TWO-STAGE TEST. THAT'S JUST THE NATURE OF THE TEST, THAT THE SECOND THANK YOU DO IS SUBJECT IT TO HYDROGEN PEROXIDE TO GET A REACTION. THERE IS LITERATURE THAT NOT ONLY TALKS ABOUT THE PRESENCE OF BACTERIA READILY SETTING OFF A POSITIVE RESULT, WHICH IS WHY MOST PRACTITIONERS WOULD NEVER DARE TO USE IT IN CONNECTION WITH A DRAIN; BUT MORE IMPORTANTLY, YOUR HONOR, THERE IS ADDITIONAL LITERATURE THAT SUGGESTS THAT COPPER, COPPER PIPES FOR INSTANCE WILL GIVE YOU THAT SAME KIND OF POSITIVE HIT. IT'S VERY DIFFERENT TO USE A PHENOL TEST WITH DRAINS AND DRAIN PIPES THAN IT IS TO USE IT WITH THE WOODEN FLOOR FOR INSTANCE. HOWEVER, YOU DON'T HAVE THAT SAME RISK INVOLVED WHERE YOU SEE THE SMALL REDDISH SMEAR THAT YOU SEE IN NUMBER 14. WE DON'T HAVE THAT SITUATION HERE. MY RECOLLECTION WAS -- AND I'LL HAVE TO CHECK WITH THE TRANSCRIPT -- BUT THAT YOUR HONOR DID RULE ON THE PHENOL TEST AS WELL AS THE LUMINAL TEST. AND I MAY BE MISTAKEN ABOUT THAT, BUT THAT'S THE INFORMATION I HAD BEFORE I STOOD UP THIS MORNING.
ALL RIGHT. THAT DOES NOT COMPORT WITH MY RECOLLECTION. HOWEVER, MY RECOLLECTION COULD BE INACCURATE ON THAT. BUT SINCE MR. GOLDBERG INDICATES THAT HE WON'T GET TO THAT BY THE NOON HOUR, WE'LL HAVE THE OPPORTUNITY TO CHECK. ALL RIGHT. MR. GOLDBERG, I'M GOING TO DIRECT YOU NOT TO USE THIS BOARD UNTIL WE HAVE HAD THE OPPORTUNITY TO RESOLVE BOTH THE RECORD AND CHECKING THE COLEMAN CASE. AND, MRS. ROBERTSON, WOULD YOU ASK ONE OF THE LAW CLERKS TO LOCATE THE COLEMAN CASE FOR ME, PLEASE. ALL RIGHT.
YOUR HONOR, ALSO, WE WERE SHOWN ANOTHER BOARD DEALING WITH SEROLOGY RESULTS. AND NOT TO WASTE THE COURT'S TIME AT THIS POINT, IF MR. GOLDBERG CAN ASSURE US THAT WE'RE NOT GOING TO GET TO THE SEROLOGY RESULT BOARD THIS MORNING, I CAN TAKE IT UP LATER ALSO. THERE ARE A VARIETY OF PROBLEMS WITH CERTAIN SPECIFIC RESULTS AND MORE BROADLY WITH THE FACT THAT HE INCLUDES IN THE BOARD INCONCLUSIVE RESULTS. AND SINCE I HAVE BEEN PRACTICING LAW, I'VE NEVER SEEN A SCIENTIST REPORT OUT RESULTS THAT HE OR SHE THEMSELVES DEEMED INCONCLUSIVE. IN FACT, EVEN IN THE REPORTS IN THIS CASE, TECHNICIANS SUCH AS YAMAUCHI, FOR INSTANCE, WILL SAY SINCE THE RESULTS WERE INCLUSIVE, I WILL NOT MAKE A STATEMENT ABOUT THEM IN HIS REPORTS. YET ON THEIR BOARD, THEY'LL SAY THINGS LIKE INCONCLUSIVE AND THEN HAVE IN PARENTHESIS WHAT THE TENTATIVE RESULTS WERE, AND I DON'T BELIEVE THAT TENTATIVE RESULTS WHICH ARE INCONCLUSIVE TO THE TECHNICIAN SHOULD SEE THE LIGHT OF DAY IN THE COURTROOM IN FRONT OF THE JURY.
THEY'RE BRINGING IT OUT NOW. IT'S THE SEROLOGY RESULTS BOARD. YOUR HONOR, ON THIS PARTICULAR BOARD, THE ONLY INCONCLUSIVE RESULTS THAT HAVE BEEN REPORTED, AS THE COURT CAN SEE, WITH ONE EXCEPTION ARE UNDER THE CATEGORY OF EAP OR THE ERYTHROCYTE ACID PHOSPHATASE. THE COURT MAY RECALL THAT IN MR. COCHRAN'S OPENING STATEMENT, HE CLAIMED THAT THERE WAS BLOOD UNDER OR SOME BIOLOGICAL MATERIAL UNDER THE NAILS OF NICOLE SIMPSON. THAT IS ITEM NUMBER 84 ON THIS BOARD, AND THAT IT WAS A EAP TYPE B, WHICH WAS INCONCLUSIVE WITH THE DEFENDANT WHO'S A BA. THE PROSECUTION'S POSITION IS GOING TO BE THAT WE WILL DEMONSTRATE IN A VARIETY OF WAYS, NOT ONLY WITH CONVENTIONAL SEROLOGY, BUT ALSO WITH DNA TESTING, IS THAT IN FACT WHAT WAS TESTED UNDERNEATH THE FINGERNAILS OF NICOLE WAS HER OWN BLOOD. IT CAN BE DONE IN A VARIETY OF WAYS, BUT PART OF THAT IS WHAT IS REPRESENTED ON THIS BOARD IN THE EAP CATEGORY. ERYTHROCYTE ACID PHOSPHATASE IS DIFFERENT FROM THE OTHER GENETIC MARKERS THAT ARE USED IN THE CONVENTIONAL SYSTEMS IN THAT UNLIKE PGM SUBTYPE, IT INVOLVES NOT ONLY LOOKING AT THE BANDING PATTERN, BUT ALSO THE RELATIVE INTENSITY OF THE BANDS, WHICH MEANS THERE'S A LEVEL OF SUBJECTIVITY THAT'S INVOLVED IN INTERPRETING IT THAT'S NOT INVOLVED IN PGM SUBTYPE. THE QUESTION OF WHETHER SOMETHING IS INCONCLUSIVE OR NOT INCONCLUSIVE THEREFORE INVOLVES A QUESTION THAT IS SOMEWHAT SUBJECTIVE AND IT'S RESOLVED BY THE ANALYST. WHAT WE ARE TRYING TO SHOW HERE AND WILL SHOW IS THAT THERE IS A SITUATION GOING ON AT THE CRIME SCENE AT BUNDY WHERE WE HAVE A NUMBER OF SPECIMENS THAT ARE IN STATES OF DEGRADATION WITH RESPECT TO THE EAP SYSTEM AND THAT WE CAN DEMONSTRATE CIRCUMSTANTIALLY THAT WHAT IS HAPPENING IS THAT THE EAP SUBTYPE IS DEGRADING FROM A BA TO A B, AND THIS BOARD DOES THAT ALMOST CONCLUSIVELY. THE SCIENCE ARTICLES INDICATE THAT ONE OF THE THINGS THAT WE CAN DO OR ONE OF THE THINGS THAT COMMON SENSE WILL TELL YOU YOU CAN DO IS, YOU CAN LOOK AT A POOL OF BLOOD UNDER THE VICTIM OR BLOOD ON THE VICTIM'S CLOTHING WHICH YOU KNOW CIRCUMSTANTIALLY HAS TO BE HERS; AND IF YOU CAN SEE EVIDENCE OF DEGRADATION IN THAT SAMPLE IN THE EAP SYSTEM, IT GIVES YOU A VERY CLEAR INDICATION OF WHAT WOULD BE GOING ON WITH OTHER BLOOD OF THE VICTIMS SUCH AS UNDERNEATH HER FINGERNAILS. SO WE SEE, FOR EXAMPLE, ON THIS BOARD THAT ITEM 42, WHICH IS BLOOD UNDERNEATH NICOLE, IS AN INCONCLUSIVE B. WELL, WE KNOW THAT'S HERS. IT'S HER BLOOD. SO THIS PROVIDES VERY POWERFUL CIRCUMSTANTIAL EVIDENCE AS TO THE DEFENDANT'S -- AS TO THE PEOPLE'S POSITION THAT WHAT WE HAVE UNDER THE FINGERNAILS IS IN FACT DEGRADED BLOOD OF THE VICTIM. THIS IS A LEGITIMATE THING TO DO. IT'S LEGITIMATE CHAIN OF CIRCUMSTANTIAL INFERENCES FOR A JURY TO CONSIDER AND IT'S LEGITIMATE SCIENTIFICALLY FOR OUR EXPERTS TO CONSIDER THIS. I WOULD POINT OUT THAT THERE'S NOT A SINGLE INSTANCE HERE WHERE AN INCONCLUSIVE RESULT IS BEING REPORTED THAT INCULPATES THE DEFENDANT. IN OTHER WORDS, WE DON'T HAVE ANY REPORTS OF INCONCLUSIVE RESULTS WHICH ARE CONSISTENT WITH THE DEFENDANT'S EAP TYPE AND PGM SUBTYPE, WHICH IS A BA AND ITS PGM SUBTYPE IS A TWO PLUS, TWO MINUS. SO IN OTHER WORDS, WE'RE NOT USING ANY INCONCLUSIVE RESULTS FOR THE PURPOSE OF SHOWING THAT HIS BLOOD IS AT THE SCENE. WE'RE USING IT FOR THE PURPOSE OF SHOWING THAT NICOLE'S BLOOD IS UNDER HER FINGERNAILS AND IT'S COMPLETELY UNOBJECTIONABLE. I FIND --
WELL, NO. INC STANDS FOR INCONCLUSIVE. WHAT THAT MEANS IS THAT WHEN THE ANALYST LOOKS AT THE PGM SUBTYPE PLATE OR THE EAP PLATE, IT'S A GEL, AND THERE'S A CERTAIN BANDING PATTERN THAT RESULTS -- THAT HE IS NOT COMFORTABLE ENOUGH WITH THAT SUBJECTIVELY TO SAY IN FACT IT IS A B, IN FACT, IT IS A BA. WHAT HE IS SAYING IS, THAT'S WHAT IT LOOKS LIKE, BUT I'M NOT COMFORTABLE ENOUGH TO MAKE THAT CALL WITH CERTAINTY." WHAT HE WILL BE ABLE TO SAY IS, HE WILL BE ABLE TO SAY THAT BASED UPON A VARIETY OF RESULTS -- AND I'M NOT TELLING IT TO THE COURT IN AS MUCH DETAIL AS WILL BE PRESENTED. I -- HOPEFULLY, I WON'T NEED TO FOR THE PURPOSES OF THIS LEGAL ARGUMENT. WHAT HE WILL BE ABLE TO SAY IS THAT BASED UPON THE COMBINATION OF WHAT HE SEES HAPPENING WITH THE EAP RESULTS AT THIS SCENE, THAT THERE IS VERY POWERFUL CIRCUMSTANTIAL EVIDENCE THAT THE EAP RESULTS UNDER NICOLE'S FINGERNAILS IN FACT IS LIKELY TO HAVE BEEN OR MAY HAVE BEEN A BA THAT DEGRADED INTO A B; AND WHEN THE JURY SEES IT, THEY WILL BE ABLE TO COME TO THAT CONCLUSION ON THEIR OWN EVEN WITHOUT THE BENEFIT OF EXPERT TESTIMONY. AND THAT'S WHAT THIS BOARD DOES.
YOUR HONOR, ONE SECOND. HE IS MISSING A FUNDAMENTAL POINT HERE, AND THE FUNDAMENTAL POINT IS THAT SCIENTISTS DO NOT MAKE A HABIT, IN FACT THEY NEVER REPORT OUT IN A COURT OF LAW -- AND I'M SURE THIS IS YOUR OWN EXPERIENCE AS WELL -- ON RESULTS THAT THEY DON'T -- THAT THEY CAN'T STAND BEHIND PERIOD. WHETHER IT'S TO SOME DEGREE OF REASONABLE SCIENTIFIC CERTAINTY OR SOME OTHER COMPARABLE STANDARD, THEY DON'T REPORT OUT ITEMS WHICH TO THEMSELVES ARE INCONCLUSIVE. IT'S NOT A QUESTION OF EVEN BEING TENTATIVE. LET ME GIVE YOU JUST AS AN EXAMPLE --
WELL, MR. NEUFELD, LET'S TALK ABOUT THE SPECIFIC HERE. DON'T WE HAVE A PROBLEM CREATED BY THE FACT THAT IN THE DEFENSE OPENING ARGUMENT, THIS PARTICULAR PIECE OF EVIDENCE WAS ARGUED TO BE SOMETHING AND THEN AN EXCERPT OF A POLICE REPORT OR THE CRIMINALIST REPORT IS PUT UP AND DISPLAYED TO THE JURY AND PURPORTED TO HAVE A CERTAIN RESULT INCONSISTENT WITH THE PARTIES HERE WHEREAS THE ACTUAL TESTING INDICATES SOMETHING THAT'S DIFFERENT.
NO, IT DOESN'T. IT DOESN'T, YOUR HONOR. THAT'S THE POINT. HERE, FOR INSTANCE, IS THE ANALYZED EVIDENCE REPORT IN THIS CASE. AND YOU CAN JUST TAKE A LOOK AT IT. WHAT'S THE PROPER --
OKAY. AND WHAT IT SAYS IS THAT THE SEROLOGISTS THEMSELVES CALL THE BLOOD SCRAPINGS UNDERNEATH HER FINGERNAILS A B. NOT AN INCONCLUSIVE, NOT A TENTATIVE. A B. WHEREAS ALL THESE OTHER ITEMS, THEY DIDN'T CALL AT ALL. AND THEY SAID, "WE WILL NOT MAKE A STATEMENT ON THEM BECAUSE IN OUR OPINION, THEY ARE INCONCLUSIVE." SO THERE'S A VERY SIGNIFICANT DISTINCTION BETWEEN THE SEROLOGISTS' PROFESSIONAL APPROACH TO CALLING THE BLOOD SCRAPINGS BENEATH HER FINGERNAILS AS A B AND ALL THESE OTHER CHARACTERIZATIONS WHICH ARE INCONCLUSIVE AND FOR WHICH THE SEROLOGISTS DID NOT WANT TO MAKE ANY CALL AT ALL.
BUT SHOULDN'T THE JURY KNOW THAT THESE ITEMS WERE TESTED AND THE RESULTS OF THESE ARE INCONCLUSIVE? ISN'T THE JURY ENTITLED TO KNOW THAT?
OH, THE JURY IS ENTITLED TO KNOW THAT THEY'RE INCONCLUSIVE. I'M NOT DISPUTING THAT. THEY CAN JUST SAY INCONCLUSIVE. OUR DISPUTE, YOUR HONOR, IS THE SUGGESTION THEY WERE INCONCLUSIVE, BUT LOOKS LIKE AN A, INCONCLUSIVE BUT LOOKS LIKE A B, INCONCLUSIVE BUT LOOKS LIKE A BA AS REFLECTED ON THAT BOARD. THE FACT THAT THE EXAMINER SAID IT'S INCONCLUSIVE MEANS THAT HE OR SHE IS NOT WILLING TO REPORT OUT THE ACTUAL RESULT OTHER THAN TO SAY IT'S INCONCLUSIVE. THAT'S HOW SCIENTISTS WORK, THAT'S HOW TECHNICIANS WORK, AND THIS DOCUMENT BELIES THAT PROFESSIONAL APPROACH WHICH IS USED NATIONWIDE BY ALL TECHNICIANS AND SCIENTISTS WHO DO THIS EXACT KIND OF TESTING. THAT'S THE DIFFERENCE. IN FACT, IN THE ACTUAL REPORT HERE, THEY DON'T SAY IT LOOKS A LITTLE BIT LIKE A B OR IT LOOKS A LITTLE BIT LIKE AN AB ON THE INCONCLUSIVES. THEY GIVE NO ANSWER. THEY JUST SAY INCONCLUSIVE, WHEREAS FOR THE TYPING OF NICOLE BROWN SIMPSON'S FINGERNAILS, THEY SAY SPECIFICALLY AND UNEQUIVOCALLY AT THIS POINT IN THIS STATEMENT IT'S A B. THAT'S THE DIFFERENCE. SO I HAVE -- WE DON'T HAVE A PROBLEM WITH THEM SIMPLY SAYING INCONCLUSIVE. THE PROBLEM IS THEM TRYING TO HOOK THE INCONCLUSIVE WITH THE TENTATIVE RESULT WHEN THE SCIENTISTS THEMSELVES WOULD NEVER DO THAT AND DON'T DO THAT.
WELL, THE -- WELL, SEE, THEY WANT TO TRY TO STRUCTURE WHAT MR. MATHESON'S OPINION IS GOING TO BE AND WHAT HE BASES THAT OPINION ON. THAT'S FOR THE EXPERT TO DECIDE. THAT'S NOT REALLY A LEGAL ISSUE. IT IS A SCIENTIFIC ONE. WHAT THEY WANT -- WHY ARE THEY SO UPSET ABOUT THIS? BECAUSE THIS ALMOST CONCLUSIVELY PROVES THAT OUR THEORY IS RIGHT AND THEIRS IS WRONG BECAUSE THE MERE FACT THAT THESE ARE INCONCLUSIVE B'S OR BA'S SHOWS THAT THERE'S DEGRADATION, WHICH IS THE VERY THING THAT WE WANT TO SHOW. SO SAYING IT'S INCONCLUSIVE, THAT DOESN'T SHOW ANYTHING. IT DOESN'T DEMONSTRATE --
THIS WILL BE USED WITH MR. MATHESON WHICH WILL BE TOWARDS THE VERY TAIL END OF MY PORTION OF THE EVIDENCE THAT I'M PRESENTING.
MR. FUNG. WELL, I DON'T KNOW BECAUSE THEY'VE NEVER GIVEN ME CLEAR INDICATION OF OF HOW LONG THEY FEEL IT'S GOING TO TAKE ON CROSS-EXAMINATION. BUT OBVIOUSLY WE WOULD LIKE THE PROBLEM RESOLVED, YOUR HONOR, AND WE FEEL VERY, VERY STRONGLY ABOUT THIS BECAUSE THIS IS GOING TO GIVE MISS CLARK THE OPPORTUNITY IN HER CLOSING ARGUMENT TO STAND BEFORE THE JURY AND SAY, LOOK, WE CAN SHOW YOU WHAT'S HAPPENING ON THE SCENE AND WE CAN SHOW YOU THAT THE BLOOD UNDER HER FINGERNAILS DEGRADED. IT'S THE ONLY COMMON SENSE, LOGICAL EXPLANATION.
FINALLY, YOUR HONOR, THE ONLY OTHER OBJECTION WE HAVE AT THIS TIME ON THE BOARDS IS, THERE'S A SERIES OF BOARDS WHICH TRY AND REFLECT THE MOVEMENT OF CERTAIN ITEMS OF EVIDENCE BEGINNING ON JUNE 13TH RIGHT THROUGH AUGUST, SEPTEMBER, OCTOBER. AND IT WOULD BE OUR OBJECTION TO DISPLAYING THE BOARD TO THE JURY OR AT LEAST ADMITTING THOSE PORTIONS OF THE BOARD UNTIL A PROPER FOUNDATION IS LAID BY THE PROSECUTOR. IN OTHER WORDS, IF MR. FUNG CAN ONLY TESTIFY ABOUT THE HANDLING OF EVIDENCE ON JUNE 13TH AND JUNE 14TH, THEN THE REST OF THE BOARD WHICH TALKS ABOUT THOSE ITEMS THAT HE COLLECTED BEING SENT OFF IN AUGUST, SEPTEMBER, OCTOBER OR WHENEVER OF THE LABORATORIES, THAT THAT SHOULD NOT BE ON THE BOARD WHEN IT'S SHOWN TO THE JURY AT THAT TIME.
I DON'T UNDERSTAND THE LEGAL BASIS OF THE OBJECTION. IS THIS LIKE THE PEEKABOO RULE IN THE EVIDENCE CODE? YOUR HONOR, PERHAPS WE CAN SHOW THE COURT THE BOARD THAT COUNSEL IS REFERRING TO. THERE IS ABSOLUTELY NOTHING THAT IS REMOTELY PREJUDICIAL OR FOR THAT MATTER, EVEN TERRIBLY INTERESTING ABOUT THESE BOARDS. IT IS SIMPLY A WAY OF BEING ABLE TO ESTABLISH SOMETHING THAT WOULD OTHERWISE BE EXTREMELY TEDIOUS, BORING AND TIME-CONSUMING AND THIS WAY IS ONLY GOING TO BE SLIGHTLY TEDIOUS, BORING AND TIME-CONSUMING; AND THAT IS WHEN THE EVIDENCE CAME IN AND WHEN IT WENT OUT. AND WE JUST HAVE PHOTOGRAPHS TO DEPICT ALL THE EVIDENCE INDICATING ITS ORIGINAL PACKAGING, WHEN IT WAS RECEIVED AND THE TRANSMITTAL ENVELOPES.
ALL RIGHT. I'M LOOKING AT A LARGE DISPLAY BOARD ENTITLED "LAPD EVIDENCE DISPOSITION SUMMARY."
THIS BOARD IS PROBABLY GOING TO BE TESTIFIED TO IN PART BY A NUMBER OF DIFFERENT WITNESSES INCLUDING MR. FUNG AND MISS MAZZOLA WOULD BE TESTIFYING MOSTLY TO THE ITEMS OR EXCLUSIVELY TO ITEMS IN THE LEFT-HAND SIDE OF THE COLUMN NEXT TO THEIR NAMES. THEN MR. MATHESON WOULD BE TESTIFYING TO CERTAIN ITEMS. MR. YAMAUCHI WOULD BE TESTIFYING TO MOSTLY TO ITEMS IN THE CELLMARK, DOJ AND FBI COLUMNS, WHICH WERE THE ONES THAT HE PREPARED, AND THEN SUBSEQUENTLY WHEN THE WITNESSES COME IN FROM THOSE LABORATORIES, THEY WILL BE TESTIFYING OFF -- IT'S JUST THIS SORT OF A BOARD THAT IN ORDER TO ALLOW THE FOUNDATION FOR -- THERE ARE A LARGE NUMBER OF PEOPLE THAT HAVE TO DO IT. BUT I SEE NO REASON TO COVER UP THOSE PARTS THAT PERTAIN ONLY TO THE WITNESS THAT IS TESTIFYING AT THE GIVEN TIME WHILE WE DO IT. THE JURY CAN'T EVEN SEE WHAT'S ON THE OTHER PHOTOGRAPHS.
MR. GOLDBERG IS SUGGESTING THERE'S A TEDIOUS EXCEPTION TO THE HEARSAY RULE. ALL WE ARE SIMPLY SAYING IS THAT UNDER THE LAWS OF CALIFORNIA, ONE HAS TO LAY A PROPER FOUNDATION BEFORE EVIDENCE CAN BE INTRODUCED AND EXHIBITED TO THE JURY. AND OBVIOUSLY, MR. FUNG AND MISS MAZZOLA ARE NOT THE WITNESSES WHO CAN LAY THE PROPER FOUNDATION SUGGESTING THIS CONTINUAL CHAIN OF CERTAIN ITEMS TO THESE OTHER LABORATORIES. AS YOUR HONOR IS WELL AWARE, THE DEFENSE IS GOING TO VIGOROUSLY CHALLENGE THE CHAIN OF CUSTODY IN THIS CASE, HAS SO IN PRIOR PROCEEDINGS AND WILL CONTINUE TO DURING THIS TRIAL. AND THIS EXHIBIT MAKES IT ALL SEEM LIKE IT HAPPENED IN A VERY STRAIGHTFORWARD FASHION, BUT OBVIOUSLY THE INITIAL WITNESSES ARE NOT COMPETENT TO TESTIFY TO THE SUBSEQUENT CHAIN OF CUSTODY IN TRANSFER OF VARIOUS ITEMS AT A TIME AND PLACE WHERE THEY WEREN'T INVOLVED.
KEY QUOTEALL RIGHT. THANK YOU, COUNSEL. THE OBJECTION IS OVERRULED AT THIS TIME. PROSECUTION CAN USE THIS EXHIBIT WITH THE UNDERSTANDING THAT THERE WILL BE A MOTION TO STRIKE IF THEY DON'T TIE IT ALL UP AT THE END OF -- CONCLUSION OF THE TRIAL.
YOUR HONOR, CAN WE ADDRESS ONE MORE ISSUE UNLESS COUNSEL HAS OTHER QUESTIONS ON THE BOARDS?
AND ALSO, BEFORE WE START WITH THIS NEW PHASE, MR. SHAPIRO AND MISS CLARK, I WOULD SUGGEST THAT YOU INTRODUCE OR REINTRODUCE TO THE JURY THE NEW MEMBERS OF THE TEAMS SO TO SPEAK SITTING AT COUNSEL TABLE SO THAT THEY KNOW WHO THEY ARE AND WHAT THEIR PURPOSE IS FOR BEING HERE.
THANK YOU. ONE OF THE WITNESSES THAT WE ARE GOING TO BE CALLING IS COLIN YAMAUCHI WHO DID SOME TESTING IN THIS CASE ON THE 14TH AND 15TH AND ALSO SOME CONVENTIONAL TESTING LATER IN JUNE, AND IN ADDITION, IS ALMOST EXCLUSIVELY THE WITNESS THAT WILL TESTIFY TO THE BULK OF THE CHAIN OF CUSTODY IN TERMS OF PACKAGING ITEMS FOR THE PURPOSES OF BEING SHIPPED OUT TO CERTAIN OTHER -- CERTAIN LABORATORIES WITH ONLY A FEW EXCEPTIONS. WHAT WE WOULD LIKE TO DO IS, WE WOULD LIKE TO DIVIDE HIS TESTIMONY UP, AS I'VE DISCUSSED WITH COUNSEL ON FRIDAY, INTO TWO PARTS AND CALL HIM ONCE DURING THE CHAIN OF CUSTODY PORTION OF THE CASE AND THEN AGAIN LATER ON TO DISCUSS HIS DNA RESULTS THAT OCCURRED ON THE 14TH AND 15TH. THE WAY THAT I WOULD PROPOSE THAT WORKING, AND I DISCUSSED THIS PROPOSAL WITH COUNSEL, WAS, MR. YAMAUCHI WOULD TESTIFY THAT ON THE 14TH OF JUNE, HE WENT INTO THE EVIDENCE CONTROL UNIT -- EXCUSE ME -- THE EVIDENCE PROCESSING ROOM WHERE THE EVIDENCE WAS LOCATED AND HE TOOK CERTAIN SAMPLINGS OF THAT EVIDENCE AND THEN TOOK THAT EVIDENCE TO THE SEROLOGY LABORATORY TO BEGIN HIS ANALYSIS. HIS DIRECT EXAMINATION WOULD EFFECTIVELY THEN END AT THAT POINT AND THEN SKIP TO THE 15TH WHEN HE TOOK AN ADDITIONAL SET OF SAMPLES, DESCRIBED HOW HE SAMPLED THEM, WALKED THEM UP TO THE LABORATORY DOOR IN EFFECT AND THEN SKIP OVER TO THE NEXT RELEVANT POINT IN HIS TESTIMONY WITH THOSE TWO SPOTS, THE BLANK SPOTS SO TO SPEAK INVOLVING THE ACTUAL TESTING TO BE PRESENTED LATER. SO WE WOULD ASK THE COURT'S PERMISSION TO ALLOW US TO DO THAT. I'M NOT SURE WHETHER COUNSEL OBJECTS TO THAT. AND IF THE COURT IS INCLINED TO ALLOW US TO DO THAT, AND I DON'T SEE ANY REASON WHY THE COURT WOULDN'T BE, THERE IS ANOTHER ISSUE THAT I WOULD LIKE TO DISCUSS WITH RESPECT TO WHETHER A CERTAIN --
ALL RIGHT. COUNSEL, LET'S TALK ABOUT THIS WHEN WE HAVE MR. YAMAUCHI TESTIFY. I'VE HAD THE JURY SITTING BACK HERE NOW FOR ALMOST TWO HOURS AND THIS IS SOMETHING WE DON'T NEED TO DECIDE RIGHT NOW.
THE REDDISH COLOR IS THE CHEMICAL REACTION FROM THE HYDROGEN PEROXIDE. SO IT'S EVEN MORE PREJUDICIAL FOR THAT REASON AS WELL, YOUR HONOR.
MR. GOLDBERG IS SUGGESTING THERE'S A TEDIOUS EXCEPTION TO THE HEARSAY RULE.
IT IS SIMPLY A WAY OF BEING ABLE TO ESTABLISH SOMETHING THAT WOULD OTHERWISE BE EXTREMELY TEDIOUS, BORING AND TIME-CONSUMING AND THIS WAY IS ONLY GOING TO BE SLIGHTLY TEDIOUS, BORING AND TIME-CONSUMING.
WHY ARE THEY SO UPSET ABOUT THIS? BECAUSE THIS ALMOST CONCLUSIVELY PROVES THAT OUR THEORY IS RIGHT AND THEIRS IS WRONG BECAUSE THE MERE FACT THAT THESE ARE INCONCLUSIVE B'S OR BA'S SHOWS THAT THERE'S DEGRADATION.