All right. Back on the record in the Simpson matter. All parties are again present. Mr. Scheck.
Your Honor, I don't know how Mr. Clarke wants to proceed in terms of itemizing these things, but there is one chart entitled, "Los Angeles Police Department PCR DQ-Alpha testing controls 1 through 6." I have no objection to that. There is another chart--where is the one with the number of samples?
Your Honor, if we could, if we are going to go through these, may I ask the Court that the witness be excused?
There is another chart with a piece of paper which lists the number of samples and controls in this case. I have no objection to that. Actually Mr. Clarke allowed Dr. Gerdes to look at that so he could just count them up and make sure they were correct. There are a series of quotations in slide form from the national research council and I think on just about everyone of them I have an objection that they are taken out of context. That is to say, every single one of them it is sort of on the one hand, on the other hand, and they only give the one hand that favors them and they will leave out the next paragraph or they will leave out sentences. And I don't know how the Court wants to deal with that, one by one as they arise in the context of the cross-examination or right now? There is a whole series of those.
Well, counsel, I think I have allowed you pretty free access to the NRC report, so my inclination is to allow them to point out whatever discrepancies they have, and if you feel that under 356 that there is a larger context, I will allow you to bring that in.
Maybe we could just deal with it on a case by case basis and save time, because that is really the nature of the objection in each instance.
There is another two--two pages called "DNA testing PCR and RFLP consistent results" wherein they list--all they say is "Driveway, foyer bathroom, RFLP no. 12, PCR no. 12, no. 6, no. 7, no. 14," then they do the same thing for the glove, the socks, the walkway, Goldman's boot. And I think that this is very misleading because it doesn't even indicate what the results are, who it is consistent with and where--and what labs did it, et cetera, but the no. 1 objection is it doesn't indicate who--
And so I have a problem with that and that is similar to objections that I have--I think the only thing left, woody, is the boards, the two boards. Maybe we should pull those out.
Yes, yes. Given the care that we have taken with these words on boards--I don't like the word "Concordance" in terms of it being argumentative, but that is not really the thrust of the objection. I think that the real problem here is again all that is being done is listing items, listing probes, listing systems, and it is not informative as to what is consistent, what isn't consistent. There are tremendous complications here. We've had testimony, for example, on the steering wheel, about Cellmark calling this 1.1, 1.2 and 4 as a mixture, and the Department of Justice took a very hedged position, I will put it that way, on this issue. So I think that that is all very misleading and we have result boards that lay out--all this out and I think this is unfairly argumentative and leaves out too much information and is really final argument and misleading.
Yes. And again this is something of an improvement insofar as it at least lists the people involved, where there is consistencies, but again it seems to me that--in fact, I think this precise board was once ruled upon by the Court in the context of the testimony of the other witnesses. I think I may be wrong, but I think it was a similar board.
There was one that is--just basically is an attempt to group certain RFLP results here, and it just seems to me that we have those result boards and it is going to become unduly confusing. Frankly, there are so many boards with so many results repetitively that I think that it is--it gives the impression of--it becomes cumulative, and I think it is unfair that they can go back to their initial results board which were organized by evidence item and lab and work with that and go through it with the witness so we are dealing with the same set of data that is more complete data than on these boards, and I think that that is an adequate way to do it in terms of presenting this to the jury. And it becomes unduly confusing and cumulative and those are my objections to these boards.
Yes, your Honor. With respect to both these boards, as well as the two charts that I believe Mr. Scheck addressed, perhaps I can address those four items first. We are in a different setting now than we were when we were examining witnesses as to this issue. This particular witness has called into question a number of items of evidence that have been tested for DNA in this case. He has called them into question by raising the specter of, in particular, cross-contamination. The witness is not present so I will offer to the Court that this witness has repeatedly testified in the past that if you have an RFLP result on a sample that confirms the reliability and validity of a PCR result on the same sample. This board I will--will be in my view extremely important to convey to the trier of fact about what this witness either will concede on the witness stand or will be sought to be impeached by previous testimony, but the role of these RFLP results is absolutely central to the reliability in his opinion of the results in an individual case. Now, the particular board that is up now entitled "Results of RFLP DNA analysis" is a way of presenting that information without having to put six boards up, one by one and having to point out individually what particular sample we are referring to. This places the RFLP results in one location. It is not argumentative. It accurately conveys exactly what the previous testimony has described. With regard to the concordance board, this witness has again opened up the specter of the unreliability of a number of the results in this particular case. One of again this witness' central notions from previous testimony is the importance of replicate testing, testing by more than one laboratory. In this case, as the evidence has already showed, there has been testing by three different laboratories, so this concordance, the consistency in terms of the ultimate results obtained by these various technologies, is again central to demonstrating through this witness the reliability of these results.
May I briefly respond? I think Mr. Clarke's argument proves too much because I think it is quite clear from this witness' testimony that his attack was only on one RFLP result and that is item 52 that was handled in the evidence processing room on June 14th by Mr. Yamauchi under circumstances where he described it to be an unacceptable risk of cross-contamination. That is the only RFLP result that his testimony questioned, and we took all these other ones out, so it seems to me that to bring up a board--there is no--it is obviously cumulative. They should attack--if they want to attack him, they can attack him on that one. He has conceded he doesn't quarrel with the others. But this concordance of Cellmark and DOJ results is highly misleading and totally improper because it conflates results that are not spelled out in terms of the different typings which are at issue here and they don't comport with what Mr. Clarke is saying, and that is, oh, there is an RFLP that confirms a particular PCR-based result, et cetera. So I think that this one is just--there is very little question in my mind that this is highly misleading, argumentative, incomplete and improper, and it oversimplifies the issues here. It doesn't even list included, not included, who this is. I think this concordance board is plainly improper on a whole host of grounds. And as to the RFLP DNA analysis board, it seems to me they can rely on the other one that they already have up there. And his argument admits that what they really want to do is put up a whole series of results which he doesn't question yet another time, when the doctor has come in here and essentially just questioned one RFLP and the circumstance surrounding it. So it seems to me that this argument really admits that the true intention here is to create yet another board in a case of many, many boards to--that would be confusing. And as far as these--that other set of lists--did you take mine? The Court should really see these, I think.
Those are again highly misleading. They don't even list who is involved and what the results are.
All right. These are entitled "DNA testing PCR and RFLP consistent results." They have to do with both items from Rockingham and from Bundy. All right. Mr. Scheck, anything else?
Mr. Scheck, I think you downplay the breadth and scope and effectiveness of your own presentation yesterday. I think you've opened up a whole line of questioning regarding the entire evidence collection process, how it was processed at the LAPD lab and calling into question all of the subsequent results. I agree with you that, for example, the results of RFLP DNA analysis is cumulative in the sense that that information is included on several other boards, but since it compacts all of that information into one board, I find that it is--it serves a relevant purpose and it will save court time to have these two particular large boards here. So I'm going to overrule your objections.
KEY QUOTEExcuse me. Could I ask the Court to--I understand the Court's ruling with respect to the RFLP DNA analysis board, but I would ask the Court to consider the concordance board because I don't believe the concordance board does that.
No. I think the concordance board, though, shows consistency of results from different laboratories.
Can I just be heard? There is one thing I left out. I call the Court's attention about the steering wheel.
Your Honor, I assume there are no objections to the other items that I have displayed to the Defense?
Well, what about the--your Honor, what about the--this where they don't even list who it is?
Well, your Honor, they don't even list who is involved. They just have item numbers.
I know, and it is on other items. It is on other pieces of evidence. It is on other displayed boards. I've ruled.
Mr. Scheck, I think you downplay the breadth and scope and effectiveness of your own presentation yesterday. I think you've opened up a whole line of questioning regarding the entire evidence collection process, how it was processed at the LAPD lab and calling into question all of the subsequent results.
Counsel, I think I said it now three times.
His attack was only on one RFLP result and that is item 52 that was handled in the evidence processing room on June 14th by Mr. Yamauchi under circumstances where he described it to be an unacceptable risk of cross-contamination.
It doesn't even list included, not included, who this is. I think this concordance board is plainly improper on a whole host of grounds.