ALL RIGHT. MR. GOLDBERG -- THE RECORD SHOULD REFLECT THAT THE JURY HAS WITHDRAWN FROM THE COURTROOM. DO YOU WANT TO SHOW ME THIS EXHIBIT?
YES. WELL, THIS IS THE EXHIBIT THAT CONTAINS THE TWO ITEMS THAT COUNSEL OBJECTED TO EARLIER OF THE SINK I BELIEVE AND THE SHOWER. THEY WERE OBJECTING ON THE GROUND OF SHOWING THAT THE PHENOLPHTHALEIN TEST THAT WAS CONDUCTED. SO THAT'S THE ISSUE. WE'VE NOW ARRIVED AT THAT POINT, YOUR HONOR.
ALL RIGHT. ALL RIGHT. WE DISCUSSED THIS MATTER BRIEFLY THIS MORNING AND, MR. GOLDBERG, YOU CITED TO THE COURT THE COLEMAN CASE. THE COURT HAS HAD THE OPPORTUNITY TO REVIEW THE COLEMAN CASE AND I HAVE REVIEWED EACH OF THE CASES THAT COLEMAN CITES. DO YOU WISH TO BE HEARD?
I DON'T WISH TO BE HEARD FURTHER, YOUR HONOR. I MAY RESPOND TO WHAT COUNSEL HAS TO SAY.
I MEAN, AS I UNDERSTAND THE OBJECTION, IT'S RELEVANCY, AND I THINK WE HAVE TALKED ABOUT THAT OBJECTION.
YOUR HONOR, I DID HAVE A CHANCE TO LOOK AT COLEMAN OVER THE RECESS. I THINK THERE'S THREE SIGNIFICANT DIFFERENCES WHICH THE COURT SHOULD BEAR IN MIND AT THIS TIME, YOUR HONOR. ONE IS THAT -- WELL, FIRST OF ALL, IN THE COLEMAN CASE, THE EVIDENCE -- IT WAS DETERMINED THAT THERE WAS ERROR TO THE EVIDENCE ALTHOUGH IT WAS DEEMED TO BE HARMLESS ERROR, WHICH HAD NOT BEEN POINTED OUT THIS MORNING DURING DISCUSSION. BUT MORE IMPORTANTLY, YOUR HONOR, THE CRIMINALIST WHO TRIED TO INTRODUCE THE EVIDENCE IN COLEMAN, LIKE MR. FUNG IN THIS CASE, IS NOT AN EXPERT IN SEROLOGY, WAS NOT AN EXPERT IN SEROLOGY, AND THAT WAS A FACTOR CONSIDERED BY THE COURT AS TO WHY HE WAS NOT THE APPROPRIATE WITNESS TO INTRODUCE THAT TYPE OF EVIDENCE, AND WE WOULD SUBMIT TO THE COURT THAT LIKEWISE IN THE INSTANT SITUATION, MR. FUNG WOULD NOT BE THE APPROPRIATE WITNESS TO INTRODUCE THE EVIDENCE OF ANY PRESUMPTIVE TESTS DONE ON THE SINKS OR DRAINS IN THE HOUSE. SECONDLY, YOUR HONOR, IN THE COLEMAN CASE, ONE OF THE REASONS THEY FELT IT WAS NOT -- THAT IT WAS HARMLESS ERROR -- EXCUSE ME -- IS THAT THE ACTUAL ITEMS WERE BROUGHT IN SO THE DEFENSE COULD DO INDEPENDENT TESTING. IN THIS INSTANCE, THOSE TWO ITEMS WERE NEVER PRESERVED BY LAW ENFORCEMENT, AND FRANKLY IT'S IN THAT SENSE A GRIFFIN SITUATION HERE AS WELL, YOUR HONOR, WHERE WE ARE BASICALLY PRECLUDED FROM HAVING DONE ANY TESTING AT ALL ON THOSE DRAINS. AS I POINTED OUT THIS MORNING, YOUR HONOR, THE APPROPRIATE PROCEDURE WOULD HAVE BEEN TO SIMPLY COLLECT SOME OF THE LIQUID IN THOSE DRAINS SO ANY KIND OF CONFIRMATION TESTING COULD HAVE BEEN DONE BACK AT THE LABORATORY. THAT WAS NOT DONE HERE. ALL THE OTHER STAINS FOR WHICH LAW ENFORCEMENT RECEIVED A POSITIVE PRESUMPTIVE TEST WERE ACTUALLY COLLECTED, AND THERE'S NO REASON WHY THESE SAMPLES WERE TREATED DIFFERENTLY. THEY CERTAINLY COULD HAVE BEEN BROUGHT BACK AND CONFIRMATION COULD HAVE BEEN DONE. BUT FRANKLY, YOUR HONOR, THE THIRD CONCERN WE HAVE HERE IS AGAIN UNDER 352, WHICH IS THAT LITTLE PINK Q-TIP THAT YOU SEE THERE IS NOT PINK BECAUSE IT'S SHOWING BLOOD. IT'S PINK BECAUSE THAT IS THE CHEMICAL REACTION FROM THE PHENOLPHTHALEIN FOLLOWED BY THE HYDROGEN PEROXIDE. THAT'S THE NATURE OF THE TEST. AND THERE IS THIS SUGGESTION THAT HE'S REACHING IN WITH THAT Q-TIP AND PULLING OUT BLOOD, WHICH HE'S NOT. AS I POINTED OUT THIS MORNING, YOUR HONOR, THERE IS A WEALTH OF INFORMATION IN THE SCIENTIFIC COMMUNITY THAT SHOWS THAT THIS PARTICULAR SITUATION IS FOUGHT WITH THE DANGERS OF A FALSE POSITIVE. ONE ARTICLE THAT COMES TO MIND IS BY BLAKE AND DILLON ENTITLED MICROORGANISMS AND THE PRESUMPTIVE TESTS FOR BLOOD. IT'S A 1973 PUBLICATION AND TALKS ABOUT THIS KIND OF SITUATION WHERE YOU --
THE SAME BLAKE AS REFERRED TO IN THE COLEMAN CASE IN A DIFFERENT CONTEXT. BUT ONE OF THE THINGS THAT BLAKE AND DILLON POINT OUT IN THAT RESEARCH IN THE 1970'S IS THAT -- IS THAT IN DAMP, MOIST AREAS SUCH AS A DRAIN WHERE YOU HAVE A LOT OF MICROORGANISMS GROWING AND BACTERIA, YOU CAN EASILY GET A FALSE POSITIVE, COUPLED WITH THE FACT THAT IN PIPES, IF THEY'RE COPPER PIPES, COPPER ALSO GIVES A FALSE POSITIVE FOR THE PHENOL TEST. AND I'M NOT TALKING ABOUT OTHER KINDS OF VEGETABLE MATTER, BUT IF YOU LOOK AT THE TYPES OF THINGS THAT CAN GIVE A FALSE POSITIVE HERE COUPLED WITH THE FACT THAT THEY DIDN'T PRESERVE THAT LIQUID SO YOU COULD HAVE A CONFIRMATORY TESTING BACK AT THE LABORATORY, I THINK WHEN YOU BALANCE THAT, YOUR HONOR, THAT THE PREJUDICIAL IMPACT DOES OUTWEIGH ANY REASONABLE PROBATIVE VALUE THAT IT HAS GIVEN ITS PRESUMPTIVE TEST. THANK YOU.
WELL, YOUR HONOR, THE ONLY REASON THAT THIS IS AT ALL DIFFICULT FOR THE PROSECUTION IS BECAUSE THERE'S A TACTICAL AS WELL AS A LEGAL ISSUE INVOLVED. COUNSEL -- AS I'M SURE COUNSEL IS AWARE, THE DEFENSE HAS ALSO DONE SOME PRESUMPTIVE BLOOD TESTING AT THE ROCKINGHAM LOCATION, AND THEY'RE USING THE SAME CLASS OF TESTS AS WE DID IN THE PHENOLPHTHALEIN CASE -- WITH THE PHENOLPHTHALEIN TEST. SO IF THE COURT'S RULING IS PRESUMPTIVE BLOOD TESTING DOESN'T COME IN PERIOD REGARDLESS OF WHO IS OFFERING IT, MAYBE THAT'S A DECISION THAT WE CAN LIVE WITH. BUT I JUST THINK MAYBE WE SHOULD CLARIFY THAT'S COUNSEL POSITION, BECAUSE IF IT IS, THEN PERHAPS WE DON'T NEED TO PUT IN THIS EVIDENCE OF THE PHENOLPHTALEIN TEST. WHAT I WOULD SAY, YOUR HONOR, THOUGH, IS THAT WE DO HAVE SOME PATCHES FOR THIS PARTICULAR ITEM THAT WE COULD AFFIX AND I WOULD LIKE AN OPPORTUNITY IF THE COURT IS GOING TO RULE, IF INDEED THIS IS THE DEFENSE POSITION, TO BE ABLE TO FIX THE EXHIBIT UP. IT SHOULDN'T TAKE THAT LONG. I BELIEVE MR. FAIRTLOUGH CAN DO THAT FOR US. AND IF THAT ISN'T THE DEFENSE POSITION, I'LL RESPOND TO THEIR LEGAL ARGUMENTS.
COUNSEL, LET ME SUGGEST THIS. LET ME SUGGEST THAT MR. FAIRTLOUGH APPLY HIS BANDAGES AT THIS POINT. I'LL ALLOW YOU TO CONSIDER THE TACTICAL MATTERS OVER THE EVENING HOURS. WE DO HAVE A ABSOLUTE STOP TIME OF 4:30. I THINK -- AND THEN TOMORROW -- I HAVE A FEELING WE'RE NOT GOING TO GET TO THAT JUST YET ANYWAY IN THE NEXT 15 MINUTES, BUT WE DO NEED TO QUIT AT 4:30 TODAY.
SURE. AND THAT WILL GIVE COUNSEL, BOTH SIDES AN OPPORTUNITY TO DISCUSS THEIR CHESS MATCH.
KEY QUOTEOKAY. THE PROBLEM WITH THE PATCHES, AS I'VE JUST BEEN ADVISED, IS THAT THEY ARE ON AN ADHESIVE, THE ONES THEY USE. SO THEY CAN'T BE REMOVED ONCE APPLIED.
WELL, I DON'T HAVE ENOUGH POST-IT'S TO -- THE COUNTY GIVES ME THESE LITTLE ONES ANYWAY. MR. GOLDBERG, DO YOU HAVE ENOUGH THAT YOU CAN JUST GET THROUGH THE NEXT 15 MINUTES SO WE DON'T LOSE COURT TIME?
THAT'S WHAT I'M STARTING TO LOOK AT RIGHT NOW, YOUR HONOR. I MAY JUST BE ABLE -- I HATE TO TAKE THESE OUT OF ORDER, BUT I SUPPOSE I COULD SKIP OVER THE ROCKINGHAM EVIDENCE AND MOVE ON TO --
WELL, YOU DON'T NEED THIS EXHIBIT TO DO ROCKINGHAM JUST YET, DO YOU? AND YOU DO HAVE AVAILABILITY OF THE LASER DISK PHOTOS SCRUPULOUSLY, CORRECT? MR. FAIRTLOUGH INDICATES YES. I'M SURE WE COULD DO THE BLOOD SPOTS IN THE FOYER AND THE SOCK COLLECTION IN THE MASTER BEDROOM BEFORE WE GET TO ANYTHING ELSE.
THAT LITTLE PINK Q-TIP THAT YOU SEE THERE IS NOT PINK BECAUSE IT'S SHOWING BLOOD. IT'S PINK BECAUSE THAT IS THE CHEMICAL REACTION FROM THE PHENOLPHTHALEIN FOLLOWED BY THE HYDROGEN PEROXIDE.
THE DEFENSE HAS ALSO DONE SOME PRESUMPTIVE BLOOD TESTING AT THE ROCKINGHAM LOCATION, AND THEY'RE USING THE SAME CLASS OF TESTS AS WE DID IN THE PHENOLPHTHALEIN CASE. SO IF THE COURT'S RULING IS PRESUMPTIVE BLOOD TESTING DOESN'T COME IN PERIOD REGARDLESS OF WHO IS OFFERING IT, MAYBE THAT'S A DECISION THAT WE CAN LIVE WITH.
IN DAMP, MOIST AREAS SUCH AS A DRAIN WHERE YOU HAVE A LOT OF MICROORGANISMS GROWING AND BACTERIA, YOU CAN EASILY GET A FALSE POSITIVE, COUPLED WITH THE FACT THAT IN PIPES, IF THEY'RE COPPER PIPES, COPPER ALSO GIVES A FALSE POSITIVE FOR THE PHENOL TEST.
THAT WILL GIVE COUNSEL, BOTH SIDES AN OPPORTUNITY TO DISCUSS THEIR CHESS MATCH.