All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier and Mr. Scheck, People represented by Mr. Goldberg and Mr. Darden. The record should reflect the absence of Miss Clark. Mr. Darden, I understand that Miss Clark is ill today.
All right. My understanding is that you wish to proceed in her absence and request that I advise the jury that she is not available today, but the Prosecution chooses to go forward.
All right. All right. The record should also reflect that we have had an in chambers conference regarding an item in the newspaper which slipped by our censors, and we've interviewed the jurors who had access to that, and I've requested counsel to confer and see if there's any further request for any inquiry.
All right. And I'm referring to the Mike Peters' cartoon in the August 23rd edition of the Los Angeles Times. All right. Mr. Cochran, I take it you have no personal objection to that?
No, your Honor. I'll be representing that individual soon. I'm only kidding. No, I have no objection to the ruling.
KEY QUOTEAll right. If I were you, I would have found it both humorous and complimentary.
KEY QUOTEAll right. That's the only part of the times I read these days. Mr. Blasier. All right. We need to go on to the swatch drying experiment argument. Do you have anything else before we launch into that?
Yes, very briefly. I filed a brief this morning with respect to the discovery violation/sanction.
Well, most of it is attachments. It's just a copy of the notes that supposedly described--
Well, here's what I'm suggesting. The brief is only nine pages. But what I'm suggesting is, I can't imagine that the Prosecution is going to be able to show any harm from what turns out to be 21 pages that relates to Dr. Lee's testimony, all of which was contained in his report. If the court is going to consider imposing any kind of instruction or any other sanction, I would ask that you review that prior to doing it. Otherwise, I would suggest that you defer this until you have more time. It's not worth the time quite frankly. But if you're going to oppose anything, I would request that you review it.
Your Honor, we prepared a list yesterday--actually Miss Martinez prepared this for me--of the items that Dr. Lee testified to and the references to those items in various reports. In other words, it correlates the materials that we previously provided to the court by dividing them by subject matter, and I'm wondering whether the court might want to take a look at that and have a copy of that document.
The other thing is, your Honor, we would like to take a look at researching the issue of motions to reconsider. I've done this before and argued this before but not for a couple of years, and there are provisions either in the rules of court or the code of civil procedure dealing with when it can or cannot be done; and perhaps we should do that before the court undertakes the process of reading this brief.
Well, Mr. Goldberg, let me tell you frankly what my thought process is, and maybe this will help you. In fashioning any sanction, it's important to know what the nature of the harm was and what the prejudice was, which is why I've asked you to respond in a specific--item specific way what is it about this particular item in Dr. Lee's notes, the fact that you did not receive those notes until, you know, the 8th of August or so and the fact that Dr. Lee started his testimony on, as I recollect, the 22nd, what is it about that information and that 14-day period that didn't give you sufficient time to prepare or what came as a surprise or, you know, what do you have to do; say, for example, Dr. Lee's testimony regarding possible other footprints--excuse me--shoeprints--have to be precise in these things--whether or not you had sufficient opportunity to send copies of these items to Mr. Bodziak to consult with him. That's what I want to know. I want to know what the nature of the prejudice is, and I understand you're going to file that sometime this afternoon.
You asked us to file--as I recall from reading the transcript, you didn't give us a time deadline.
Well, Dr. Lee I assume, from our progress in the boards, is probably two-thirds of the way through his presentation.
Well, Mr. Scheck told me he is intending to finish by 12:00 o'clock or maybe it will spill over a little bit to the next day.
I understand. But in terms of delay, your Honor, just so the court knows, although the People's position is that perhaps we've been irreparably prejudiced, nevertheless from a tactical perspective, we do not want any kind of an extensive--a gap between the end of Dr. Lee's testimony and the beginning of our cross-examination. So at most--I mean, it is our hope that we can go as soon as possible, as soon as possible being, at the latest, sometime very early next week. And now I know that the court also has this issue of Fuhrman and that we have to work around that as well. I would like the opportunity to consult more with Miss Clark about this. This is a tactical decision in which in effect, we may decide to forego certain remedies that the court would otherwise believe us to be entitled to in terms of a continuance. But if--
Let me just add one other factor for you to consider. My impression from observing the jurors--and unfortunately, you weren't privy to our discussion with one of the jurors this morning, but my impression is that they are tired and they are--
We understand. And that's why we're balancing what is the additional benefit we get from more preparation against the detriment that would be suffered by having Mr. Lee's--Dr. Lee's testimony not subject to cross-examination and also the jurors as well.
But let me ask you this. Do you really want to do anymore in this situation than have Dr. Lee accentuate the positives that go to your case, for example, his apparent opinion that these are Bruno Magli shoes and that although these appear to be parallel patterns, he can't say for sure that it's a shoeprint, it looks like a shoeprint, but he can't say for sure?
Your Honor, these are the tactical issues that are going in. And what I'm trying to indicate to the court is that our tactical belief and indication is, we want the cross-examination to go at some time very, very early next week and I'd like the opportunity to discuss that with Miss Clark and tell the court about our answer this afternoon. But if that is the case, does the court want me to use a substantial amount of my preparation time right now going through these documents in order to provide the court with a more detailed list of prejudice? I would prefer--
No. If you represent to the court that it's your position now that you desire to proceed as quickly as possible without asking the court for any substantial delay, then my preference is that you spend your time doing that.
Because frankly, if I were in your shoes, this--I would cross-examine Dr. Lee for about half an hour accentuating the positives of my case, doing it in a very professional, friendly manner with him given his reputation and get out.
KEY QUOTEThank you. And we will certainly consider the court's comments and I understand exactly what your Honor is saying, and my representation is yes, we have every intention and expectation of not asking--we are not going to ask for any significant delay and we have every expectation of going forward at some time in the early part of next week, and I would like to spend my time in preparation rather than sanctions and then address--we will be asking for other kinds of sanctions in the way of jurors instructions and so on, but I would like to concentrate on that after--
Your Honor, just in that regard, I know I spoke to Mr. Goldberg about this and he was indicating to me that he was--I don't want to characterize it--but Monday was likely. What we just would like to know, maybe he can tell us--he indicated to me he wants to talk to Miss Clark, and by sometime this afternoon, Dr. Lee is going back to Connecticut. He has very important business and he needs to know for purposes of scheduling. Our position about prejudice is contained in the papers Mr. Blasier filed. But we would just like to know something by this afternoon so that we can make appropriate plans.
Well, I assume, just as a matter of courtesy, Mr. Goldberg will try to give us some information in that regard by this afternoon.
Your Honor, one point, quick point before we proceed to the argument on the swatch drawing having to do with the next board that's coming up. I just have a quick question, and that is this.
This is the Rockingham board. You have it in front of you. The--I noticed last night--
That's correct. If you look at the picture on the bottom right, Dr. Lee's testimony will concern finding three other small blood drops or finding additional ones other than the ones that were collected, and he sort of outlines the ones that were collected. He was not going to testify to any positive presumptive tests that he performed at that time. He will be testifying to certain negative presumptive tests. I noticed in the bottom right-hand photograph that where it depicts the location of the various drops, that there is a swab on the ground which looks like or could be interpreted as a presumptive test. There's no intention to elicit any testimony about that and the results of those tests. But I had some concerns that if I displayed that photograph in that fashion, that the Prosecution might contend that we had opened the door. And if that--I just wanted to iron that out. If that's going to be the case, then we'll cover up that photograph. We have no intention of eliciting it.
That the swab is being used as a pointing device, something that just sort of came to hand at that location rather than the--
Well, that's kind of an ambiguous response to the court's answer because you can clearly see that there is a very distinct and unnatural color on the swatches, a bluish green tinge that's caused with the o-tolidine test that Dr. Lee performed. So it is in some ways more distinctive looking than the phenolphthalein test results which are pink and could conceivably by a layperson be mistaken for blood. This cannot be mistaken for blood. This is clearly a result of a presumptive test. It would be our position that this does open up the door on presumptive blood testing. I guess counsel could probably cover up the--the little cards with the q-tips on them. I mean, that would be one way of handling it.
What did we--Dr. Lee found other apparent bloodstains, did a test on them. What test did he do?
They were positive. I mean, there's--I don't think there's any difference between either side that there were I believe three blood drops, two or three on item no. 12, three that were collected by LAPD in that location and were confirmed later to be blood. In fact, there was an RFLP test done at Cellmark on item no. 12. This was a high concentration of DNA. Dr. Lee found three other small drops in that area. Applying another rule that we applied in this with respect to presumptive tests with the Prosecution on the sock, I suppose I could argue that they could come in on the grounds that it's all stains in the same area. But we don't choose to elicit that it's a presumptive test. The only presumptive test that the jury has heard about I believe is the phenolphthalein test where the swatch turns red, and I think part of our concern with the other pictures where we struck them is that when you see a red swab, you might think it's blood and it's only a presumptive test. So we would--this photograph is there to just show the location. That's all he's going to testify to. And they are black. So that's the state of the record. I just--I don't want to open the door. So it's up to the court as to what you want to do with that picture.
All right. Well, the court's ruling is pretty clear though on presumptive tests that are not backed up by a confirmatory test since we're talking presumptive tests.
So if you want to use it, I suggest you go along with, you know, Dr. Lee can testify that he saw other reddish stains on the floor in close proximity to the three tested by the People. "These are them. Thank you very much."
Referring to that photograph. But I think Mr. Goldberg's suggestion that the cards be covered so that the q-tip isn't--tip of the q-tip isn't apparent is probably the way to go if you want to use the photograph. He can testify to that without the photograph.
Your Honor, it actually might even be possible for counsel to simply cover up the bluish green tinge. That way, the jurors would not know whether these were simply being used as pointers as opposed to testing device.
Thank you, your Honor. We filed a brief on this as counsel did. Counsel, in one of his arguments in passing, noted that the People's points and authorities wasn't filed until a few weeks after we received discovery of the experiment. I don't think that that's really here or there because we don't actually have to file written points and authorities in moving papers. This is something that we've been doing in your Honor's court in this case and flooding the court with paperwork.
Mr. Goldberg, the only thing I'm interested in is whether or not you think there is a substantial similarity between the situations.
Okay. Thank you. The People believe there is not substantial similarity between the two situations, and there are several factors that are involved. Actually Mr. Scheck characterized most of them in his responses to them in his points and authorities starting on page 6. The issue as to whether the swatch--the test tubes--first of all, maybe I should start by explaining a little bit about the significance of this, or does the court already know what the Defense theory is and why they want this to come in?
Well, I have an idea as to why they want to bring it in from just looking at the exhibits. But seeing as I'm the trial Judge and not preparing the case, I don't know what the evidence is until it's presented to me at the same time the jury gets it.
Okay. The Defense theory is that--well, there are in fact transfer stains in bindle no. 47, which is the bindle that contains Dennis Fung's initials and the item number on it. Therefore, it's an original bindle. This particular bindle was created on June the 13th by Mr. Fung in the morning sometime after 7:00 o'clock when, according to the door entry, he first entered into the room and obviously before 10:00 o'clock, which is when Mr. Yamauchi sampled the various evidence for the purposes of PCR testing. The bindle was then eventually booked into the evidence control unit where it's frozen, as the court has already heard in testimony, and that bindle, that particular bindle remained in the possession of the Los Angeles Police Department until August the 12th of last year when it was mailed to the Department of Justice or it was sent to the Department of Justice in an unfrozen condition. In other words, in a condition where it could thaw out and then was received by Mr. Sims of the Department of Justice and he photographed it apparently before he did any testing on the same date, and that photograph depicts the transfer stains. So we know that the transfer occurred circumstantially at some time between June the 13th, when the bindle was created, and August the 12th, when Gary Sims photographed it. The theory that the Defense is propounding appears to be twofold, that either this is evidence of swatches being rewet either intentionally or accidentally, probably more likely intentionally, and that accounts for the transfer, or there was swatch switching, again, going to the issue of planting.
All right. Refresh my recollection as to 47. Is that one of the Bundy walkway drops?
Yes, your Honor. That's the first dot in the Bundy walkway and it was also the subject of Collin Yamauchi's PCR testing. Now, the way that the swatches were dried out is, they were put in the cabinet at the Los Angeles Police Department in the small test tubes, one of which we introduced into evidence first. In looking at the photographs that were provided--and I could be wrong because I'm looking at photographs--it appears that the test tubes may be plastic instead of glass. I'm not sure whether that's material. And I can't tell whether the smaller test tubes are the identical size and whether the opening is the same as the LAPD test tubes. The LAPD test tubes are disposable glass test tubes that are thrown away after the swatches are dry. So that's one point. The other point is that the LAPD test tubes are placed in the cabinet lying down whereas Dr. Lee's test tubes were upright.
Now, I guess there are advantages and disadvantages to both because you could argue that upright, for the purposes of contamination, that substances might be more likely to go into the test tube than lying down. But there should be a difference in air flow and there could also be a difference in terms of precipitation because if the--if the test tube is lying down, there's an effect of sealing and there is no sealing if the test tube is standing up, and that appears to be a potential material circumstance. We also talked about not being able to replicate temperature and humidity. Counsel says that the lab was air conditioned. I don't recall that testimony. He doesn't have a citation in the transcript and I don't know whether it was or not. But I don't believe it's in the record one way or the other. So trying to replicate the exact temperature, humidity cannot be done. And we do know from the generic literature from drying experiments that this can play a very important role in terms of the length of time that it takes items to dry. The next issue that we cannot determine--I'm not saying that they failed to determine this. I don't believe it can be determined or replicated--is exactly what proportion of distilled water to blood was used at the time that the swatches were collected in the field by Andrea Mazzola. And the court will recall the last two times we discussed the issue of drying experiments, that there's some case law to the effect that where there's certain variables that cannot be determined, that those variables that cannot be replicated are a basis for exclusion of the test as not being substantially similar. The most important issue as far as we are concerned next to the issue of whether or not the test tubes were standing up or lying down is the question of the swatches, the number of swatches in the test tubes. I am not positive, a hundred percent positive how the test was performed from my discussions with Dr. Lee on this point. I now believe based upon my most recent discussions, which were very brief in this courtroom, that what he did in the case of the test tube, the single test tube that contained six swatches, which was the maximum number of swatches that any test tube contained, is that he put a number of swatches in that test tube because he wanted to be able to take one out each hour and then place it on a bindle for the purposes of seeing whether or not there was a transfer, which would necessitate, of course, opening up the cabinet, going into the test tube with a forceps presumably, taking the swatch out and testing it; then the next hour, he'd take another swatch out and test it, next hour, take another swatch out and test it to see whether there was transfer. Obviously none of that was done in our particular case, the opening of the cabinet, the reventilation of the cabinet, perhaps redistributing the swatches in the course of plucking one of them out. And what also was not done is, in our particular case, in the case of 47, we have eight swatches in that particular tube. In fact, I think there were more swatches in that particular tube than any of the others, which could be a reason accounting for the differences in drying time. One possibility that is probable we believe is that swatches become stuck together in what I suppose we could call a swatch sandwich and that the meat of the sandwich as well as the bread sides that are facing the meat are not going to dry as quickly as the exterior portions of the sandwich.
All right. Well, Mr. Goldberg, you should assume that I've read your points and authorities. And thus far, the arguments you made I've heard--
--or I've read. Do you have anything additional you want to add to your points and authorities?
Well, I don't think that I took--I mentioned the fact of taking the one swatch out at a time and not keeping a bunch of swatches in a condition where they would be likely to be stuck together. Now, counsel says--
Now, counsel says, well, some of these things, there's no evidence of one way or the other and the Prosecution has to prove it didn't happen. No, I think the obligation under the case law that we cited is for the proponent of the test to show the substantial materiality of the circumstances, and to the extent that that cannot be done, the test should be excluded. This test appears to be more speculative than the sock drying experiment test. At least with the sock drying experiment, at least some of them, it seemed like a crude attempt had been made to replicate the circumstances to the extent that the Defense felt they could be replicated. Here, the way that the test is designed by it's design does not replicate all of the material circumstances, particularly in ways that are important. Thank you, your Honor.
Mr. Goldberg indicates that at least one argument the Prosecution will make and has made in its brief is the suggestion that the swatches were originally dry and then when they were put in the freezer and taken out of the freezer, condensation formed, and that accounts for the wet transfer observed at the Department of Justice and is noted in the notes of Gary Sims. That argument is irrelevant to this experiment and this discussion because the point at issue here is whether or not the swatches on the morning of June 14th when taken out of the test tubes were wet or dry. That's the point in contention. The record here indicates that Andrea Mazzola testified in August that when she assisted Dennis Fung in removing the swatches from the test tubes, that she initialed the bindles or she put her initials on at least some of the bindles. None of these bindles have her initials. That was established at this trial. We've also established at this trial through the testimony of Thano Peratis that there's 8 cc's of blood in the calibrated needle that he withdraw blood from Mr. Simpson and we've established that Collin Yamauchi used 1 cc when he made the swatch--the fitzco card and that the next business record recording is toxicology, and they measured the amount of blood in the tube, and that's 5.5 milliliters. That means at least 1.5 milliliters of blood is missing. That is part of the background here. There is wet transfer on the original bindle 47. I don't think that's in dispute by any of their experts and even from Mr. Goldberg's argument. The issue is what could have caused that wet transfer. We think that it's self-evident that frankly, if you put swatches in a test tube in this fashion, they should dry overnight. It's the testimony of Dennis Fung and Andrea Mazzola that these swatches were in fact dry. They both testified to that fact. They both testified that the procedure involved--Mazzola is very specific in the page citations I put in the brief, that they would not put them in the bindles if they were wet. Collin Yamauchi testified that he noticed nothing unusual about the bindles when he cut the swatches. He further testified that with respect to another item, he did note when he did his drawings whether or not swatches were stuck together. In fact, I know the court recalls from our split hearing that there was one set in particular where he noted the swatches were stuck together.
So it seems to me that the record as far as swatches sticking together or swatch sandwiches, presumptively based on the testimony, if there were swatches sticking together, they would be noted and when--and it was noted in the instance where it occurred, and if they weren't sticking together for--if they were sticking together for 47, it should have been noted by one of these people seems to me a fair inference from this record. Now, Dr. Lee went about doing this swatch drying experiment in a controlled fashion. The key here is that the swatches are the same swatches used by LAPD. We got them from LAPD as opposed to the sock drying experiment where nobody has been able to find the same kind of sock. And that is a material difference because when you're trying to determine drying, you need the same kind of material. So we have the same swatches. We got it from them. Dr. Lee then went about doing a controlled experiment whereby he performed a swatch collection in exactly the same fashion described by Fung and Mazzola, by putting a drop of blood outdoors on cement, letting it dry, swatching it in the same fashion they described and creating a series of outdoor swatches. Then as a control, he took a series of indoor swatches where he saturated the swatches with whole blood and he performed both experiments simultaneously to see if there would be any differences in terms of volume of blood versus distilled water and found no differences. Essentially, within the range of drying times here, what you find is that when you take swatches out of the test tubes after one hour, you see what transfers is depicted in the--it's all documented in photos. When you take swatches out after two hours, you still see some evidence, but less of wet transfer, and after three hours, none of the swatches reveals any evidence of wet transfer. They're all dry. Now, he also varied the number of swatches in the tubes in order to try to control for how they might have fortuitously been in a tube overnight. Two tubes had one swatch. One tube had two swatches. One tube had three swatches. One tube had four swatches. One tube had six swatches. He informs me that they are plastic tubes. He also varied the size of the tubes to account for differences in circulation, and they all turned out, again, to have the same pattern in terms of drying. He also put, as we indicated, different numbers in the tubes. The fact that the tubes were upright and the swatches were on top of each other is a fact which in effect favors the Prosecution since it's their contention that swatches creating a sandwich might tend to dry when they're on top of each other more slowly than if they're separated from each other. So to that extent, that difference, which we don't think is a material difference in terms of substantial similarity, favors them. Now, the record is clear from Mr. Matheson and from--
Is there anything in the California case law that says that if a condition more favors one particular side, I can ignore the substantial similarity requirement?
No. But I'm just pointing out that you have to make a discretionary ruling as to whether something is substantially similar or not, whether the differences are material. We don't have to prove identity with respect to the condition. The issue here is whether or not their objections are material for purposes of these experiments. And we don't think that these differences are conceivably material for the limited purpose for which the experiment is being offered. And if they think there is a difference or they're--given this set of circumstances, they're perfectly free to do their own experiments to prove ours are wrong in terms of the range of time it takes for a swatch to dry.
Now, we'll all been to the evidence processing room, and the cabinet is described as a normal room, air condition in the lab, it's room temperature, an ordinary cabinet. That's the testimony. No special heating or cooling there. So on the assumption that it's 25 degrees centigrade, he put--Dr. Lee put his swatches in a cabinet that is substantially similar to the cabinet we see depicted in the photographs in this room. If there is some factor here unbeknownst to any of us that the evidence processing room for some reason at LAPD was unusually hot or unusually cold and it wasn't room temperature, then they're perfectly free to bring that on to prove that there's a material difference here. But I don't hear any of that and I think the record based on the testimony of everybody and our visits to the lab is that it's room temperature.
But don't you agree that ought to be the obligation of the proponent to establish that?
Well, the record is that this was a room at room temperature and that--and they put it in an ordinary cabinet. So we replicated that condition and that's what the testimony will be. I think we've demonstrated that.
With respect to the argument that the proportion of blood to distilled water on the evidence swatches is unknown preventing duplication of this condition in the swatch drying experiment, Dr. Lee will testify that the actual swatches in this case and the outdoor swatches start with one drop of blood, which is approximately .05 cc's. He gets these numbers from extensive experimentation with blood drops, which he will testify to. And the range of variation ordinarily found is between .03 to .06. So unless--the testimony is clear as to the methods used by Andrea Mazzola in wetting a swatch and taking the bloodstain. Nothing in that testimony indicates that she would have saturated it with a volume of distilled water that in Dr. Lee's opinion could make any difference here, you know, 10 cc's of water in terms of this swatch drying experiment. And as I indicated, he did a control by having one set of swatches that were just saturated in blood indoors. So we tried to control for those conditions. And I think I've addressed the issue of whether the swatches were stuck together or not. I think the record is clear that they noted when swatches were stuck together, and according to them, there's no notation of swatches being stuck together here. So as far as that's concerned, they're free to argue to the jury or bring on a witness in rebuttal to say, "I forgot to tell you and I forgot to indicate in my drawings that the swatches were stuck together." And I think that that about covers it except for the fact that I think it is a critical issue as to getting a range before the jury as to when these kinds of swatches would dry and when they wouldn't and when they would leave wet transfer and when they wouldn't. And that's the limited purpose for this, and for that limited purpose, we feel that this experiment is substantially similar to the conditions at issue and that the Prosecution has not shown that there are material differences that would weigh so heavily in this equation that this highly relevant evidence shouldn't go before the jury. And it's all documented. And finally, the reason that I--this experiment was the last thing Dr. Lee did just before filing his report. So they got this immediately within days of the completion of the experiment with all his notes, all the photographs, all the documentation, and they asked him about it a number of times already, weeks before he came in here to testify.
Thank you, your Honor. First of all--and I'll just hit the issues very quickly, your Honor. The idea that there's a common drop size between 50 and 60 microliters is something that is stated in Dr.--excuse me--in Mr. MacDonell's book on blood spatter, but I am not aware of empirical data to support that proposition. If Dr. Lee is going to rely on such material, I believe that we're entitled to have that in discovery and I'm sure he will probably provide it to us upon our request. I'm just saying I'm not aware of such material. I don't want to address what we believe to be nonissues, which are the questions of Andrea Mazzola saying--of Andrea Mazzola's initials not being on the bindle because she didn't bindle virtually any of the items here and just not--neither here or not doesn't add substantial materiality of the experiment and I think we should concentrate on the issue at hand. Certainly Dennis Fung's determination that they appeared to be dry, which is what he's saying, but he did not check them, you know, by feeling them obviously is again not in any way relevant to the substantial materiality of the test, which is the legal issue that we're dealing with.
The swatches it seems very likely could have stuck together or been placed one on top of each other while they were lying down after being poured out into the--poured out into a bindle and then packaged, could have been reconfigured, and we'll never be able to replicate them and I wouldn't expect anyone to be able to replicate them. But the most important thing I would like to say, your Honor, in response to counsel's argument in relationship to the freezing and unfreezing--and this is the last point I'll make because I know the court would like to get on with the matter--the issue is being defined more narrowly by counsel than it really is. He's saying all we want to show is how long it takes swatches to dry and that's the issue and, therefore, freezing and unfreezing is not relevant. The real issue is not how long it takes swatches to dry. No one cares about that. The issue is how do transfers occur in bindles. That's the issue that the Defense cares about. That's the issue that the parties are going to be arguing about. That is the issue that this experiment theoretically is supposed to provide additional evidence to the jurors about.
And, therefore, freezing and unfreezing, everything that happened to these swatches between the time that the bindle was created and the time that the transfer was noticed is relevant. And no one is aware of what the effect is on freezing and unfreezing, because a lot of the issues that have been brought up in this case, no one cares about. They've haven't been investigated in the scientific literature. There are no experiments that have been done. So we are simply trying to make guesses well, this could happen, this might happen, maybe if you did it this way, it would be different or more favorable to one side or the other. The point is, we don't know, and this experiment doesn't tell us because it doesn't replicate substantially the material circumstances with respect to these items.
All right. Thank you, counsel. All right. I've reviewed the points and authorities that were filed by both sides and heard the substantial argument. The issue before the court is whether or not the conditions of the experiment as offered substantially replicate the conditions of the swatch drying that was accomplished in this case. The court is aware from having reviewed the boards that the Defense is going to offer photographs of the swatch bindles that are going to indicate some staining within, which is going to indicate that there was some--that the swatches were, in fact, wet at some point in time while they were within those bindles and the Defense can prove that by those photographs. I'm concerned that the temperature has not been documented and established that the humidity, which would have an impact on the drying time, has not been documented or established, that we have not determined the blood or liquid content of these swatches nor the particular drop size. I'm also concerned about the upright nature of the test tubes given the--for all the humor about the sandwich problem, it is an issue that I'm not clear on. I therefore find that there is insubstantial similarly, and the objection will be sustained. All right. Let's have the jury.
If I were you, I would have found it both humorous and complimentary.
If I were in your shoes, this--I would cross-examine Dr. Lee for about half an hour accentuating the positives of my case, doing it in a very professional, friendly manner with him given his reputation and get out.
I therefore find that there is insubstantial similarly, and the objection will be sustained.
That means at least 1.5 milliliters of blood is missing.
I'll be representing that individual soon. I'm only kidding. No, I have no objection to the ruling.