📄 Out-of-jury discussion: proposal and protective order — Wednesday, August 2, 1995
Address:
C:\DEPT103\CRIMINAL\1995\AUG\2\OUT-OF-JURY-DISCUSSION-PROPOSA.DOC
TRIAL
▲ Day 127 of 167

Out-of-jury discussion: proposal and protective order

Date: Wednesday, August 2, 1995 • Utterances: 15
Outside the jury's presence, prosecutor George Clarke requested access to a grant proposal submitted by defense DNA expert Dr. John Gerdes, which Gerdes had mentioned during testimony. Gerdes offered only a one-page abstract, citing proprietary interests in the full proposal. Judge Ito directed both sides to confer over lunch and indicated the court could issue a protective order to control access to any produced document.
1 (The following proceedings were held in open court, out of the presence of the jury:)
2 THE COURT:

All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Deputy Magnera, let's have the jury, please.

3 MR. CLARKE:

Your Honor, one item if I might briefly?

4 THE COURT:

Mr. Clarke.

5 MR. CLARKE:

During testimony of Dr. Gerdes he brought up the fact that he had been granted certain funds as a result of a proposal to an IST or a, quote, newer or better method. I can't recall the words he used. During the break I asked Mr. Scheck and Dr. Gerdes about the availability of that proposal. I was informed by Dr. Gerdes that there would be no problem of providing a one-page copy of the grant that contains an abstract of the proposal, but as to the proposal, Dr. Gerdes explained that there was a proprietary interest and that that would not be available to the People. It is our request that that be provided. I think it is very relevant in this case for reasons that I can give if the Court would like to hear immediately.

6 MR. SCHECK:

We have offered to make Dr. Gerdes available to explain in any great detail anything that Mr. Clarke wants to ask him about the proposal and the technique, and I would have to consult with him further about what the legalities are in terms of the proprietary nature of it.

KEY QUOTE
7 THE COURT:

All right. Why don't you confer over the lunch hour on that issue, all right? And what is--one of the Court's available remedies in these issues is to issue a protective order if anything like that is produced.

8 MR. SCHECK:

Right, okay.

9 THE COURT:

And that the copy not be copied and it be returned to the Court's custody upon review and that it can be kept here in the courtroom.

10 MR. SHAPIRO:

Yes.

11 MR. CLARKE:

Very well.

12 THE COURT:

All right. I'm sure we can accomplish that.

13 MR. CLARKE:

All right.

14 THE COURT:

All right. Deputy Magnera, let's have the jurors, please.

15 (Brief pause.)

Temperature

procedural

Key Quotes (3)

George Clarke
Dr. Gerdes explained that there was a proprietary interest and that that would not be available to the People.
Frames the dispute: the prosecution wants the proposal as potential impeachment material, but Gerdes is asserting a proprietary shield.
Lance A. Ito
One of the Court's available remedies in these issues is to issue a protective order if anything like that is produced... the copy not be copied and it be returned to the Court's custody upon review.
Ito signals a pragmatic middle path — disclosure under strict protective conditions — before the issue escalates into a full dispute.
Barry Scheck
We have offered to make Dr. Gerdes available to explain in any great detail anything that Mr. Clarke wants to ask him about the proposal and the technique.
Defense deflects document production by offering live testimony instead, a classic substitution tactic.

Evidence (1)

Informal
Dr. Gerdes' grant proposal to IST regarding a newer or better DNA methodology, including a one-page abstract
discussed; prosecution requested production; defense cited proprietary interest

Notable Exchanges (1)

George ClarkeBarry ScheckLance A. Ito
Clarke presses for the full Gerdes grant proposal; Scheck counters with an offer of live testimony instead and notes he needs to check the legalities; Ito cuts it short, orders a lunch conference, and previews a protective order solution.
strategic

Credibility Attacks (1)

⚔ Dr. John Gerdes
bias / financial interest
Clarke's request for the grant proposal is aimed at exploring whether Gerdes has a financial or professional stake in a competing DNA methodology, potentially undermining his objectivity as a defense expert.

Objections

None recorded
Proceeding 7131 • 15 utterances
Criminal Trial
Department 103
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📂 AUG 2, 1995 📄 Out-of-jury discussion: propos
AUG 2, 1995 KRT DvH TD