Ladies and gentlemen, let me ask you--I need to take up an issue out of your presence. Will you please step into the jury room and we will summon you out shortly.
All right. The record should reflect that all the jurors have withdrawn from the courtroom. Counsel, my understanding is that there is an objection by the Defense to mention of the combined swatches, RFLP testing that is being conducted by the Department of Justice, and that objection is based upon the fact that the Defense has all along asked for permission or access to those swatches to do its own testing, that these swatches have continuously been in the possession of the Prosecution or their testing agencies and not available to the Defense for their own testing, that months ago, and I don't recollect the specific date, the Court gave the Prosecution permission to continue their testing as to these items 303, 304 and 305, the Bronco console swatches that were taken in August. The Court gave permission to the Prosecution to combine those swatches and to conduct--to attempt to conduct RFLP testing, and that it was anticipated that because of the low amount of DNA that was there that this process would likely take a considerable period of time. My understanding is that there is a Defense objection, because the Department of Justice, despite the Court's permission, did not actually commence this testing for a significant period of time approaching two months, and that this result, the RFLP results are therefore not appropriate to be presented by the Prosecution in their case in chief, one, because obviously they have concluded their case in chief, and two, because of the unexplained and unjustified delay in the starting of the RFLP testing. That is my understanding of your argument.
Well, that is the beginning of it, but the full thrust of this, and it is a simple one I think we can resolve at the moment, and that is that whether or not this evidence--and first of all, there is no results reported, so we are talking only about a process that is ongoing. Whether or not these results would be admissible in the Prosecution's rebuttal case is a question which I'm certain the Court had agreed and the parties had agreed would be dealt with at that time. In fact, I think your words were "This is a problem I don't have to deal with yet," and the results aren't even here yet. It was my mistake that yesterday--this was not--
They gave us copies, Xeroxed copies of all the charts except for these last two flow charts, and when I looked at the flow charts I actually pointed out to Mr. Harmon that on another one concerning the carpet they made a mistake on a date, but I did not notice these last two boxes because when my eyes glazed over it I thought it was just the history of the sample. I didn't see the last two boxes. And it was my mistake and I didn't realize therefore they were going to try to raise the fact that there was RFLP testing ongoing. Now, this witness--frankly, there is no documentation, no written documentation of this, in other words, the testing that is ongoing, and he has no knowledge of it, obviously, because we have no reported results. So I believe that it is improper at this time for the Prosecution to ask a question of this witness, well--which is what they intend to do--well, if there were an RFLP result on the combined Bronco stains would that change your opinion with respect to these samples? Because I don't think there has been any ruling and there shouldn't be a ruling until we reach the point where they try to offer rebuttal.
Isn't it answer likely to be, well, because these were PCR swatches first any contamination that is attended to those and these swatches are inherently suspect because they were left in the environment until August? I mean, isn't that a pretty simple answer?
Well, no, because as the end of my direct examination indicated and as what is going to be going on, I'm certain in the rest of Mr. Clarke's cross-examination, is that there are differences as to each individual item. I anticipate--well, on direct examination Dr. Gerdes indicated that he did not have a quarrel and did not believe cross-contamination could be a problem with a whole series of RFLP results in this case for two reasons: No. 1, the amount of DNA involved in the RFLP test approaching a hundred nanograms was so high that cross-contamination was not a likely explanation; and no. 2, in terms of the history of the samples, those samples were not processed in the presence of a reference sample from the person or persons who the typing came back to. And Dr. Gerdes' testimony on the RFLP on cross-contamination is limited to no. 52 handled in the evidence processing room.
So you are anticipating that Mr. Clarke is going to say now if these results were corroborated by RFLP then you would have the same non-objection?
I'm anticipating he is going to ask him if these results were corroborated by an RFLP would you--right. And the point is we don't have the data from that RFLP, we haven't seen it, and so no scientific evaluation can be made, that is no. 1, so it is an unfair question in that respect, and no. 2, we have a whole argument here about whether that would be proper rebuttal given the nature of this testimony, which is not an issue that should be broached now. The only reason it is even being broached now, frankly, was my inadvertence in seeing a box on this chart that says "RFLP testing ongoing today." And even if the Court were to allow him to ask a question about that box, he shouldn't be able to ask any more questions about test results that have not yet been reported, that have not yet been performed. It is totally speculative, and frankly, it is dirty pool. My mistake for--for not observing that box, but it violates everything we had agreed to previously.
Well, counsel, let's--you know, I--it is not dirty pool if it was given to you and you had the opportunity to see it.
My mistake on that. I'm just saying that I didn't notice it and I'm confident that--
Your Honor, my apologies for that. I think my record is pretty clean in that. I don't do that.
I missed that, but I'm saying it, I should have noted it because plainly it was something that we had agreed to take up at another time.
We had agreed to take it up at another time and they have raised the specter of it I think two weeks ago, and we've been willing to do it whenever they wanted to bring it up. I think the Court recalls the context of, you know--Mr. Scheck always says, well, we are going to bring this up, we are going to bring this up.
I apologize. We have now produced a three-probe RFLP match which shows a mixture which is consistent with the blood of the Defendant, Mr. Simpson, and the blood of Ronald Goldman, and however much time permits, we will continue to probe it and if suddenly we exclude that on the fourth or fifth probe, that will be fine, but that is highly unlikely, so that is what they fear, the other shoe. I can address the timing, I can address any of the issues there. It sounds like the biggest complaint right now is we don't have to deal with it yet, and I can't speak for Mr. Clarke. This is a little awkward. I'm arguing this issue in the context of his witness, but the intention only was to ask a hypothetical which is based on what in fact has been done, and I just need to clarify, when Mr. Scheck says we haven't seen it, he is obviously excluding the guy who has never been in the blue chair, Dr. Blake, because he has seen all this stuff, he has had access to it. I don't know if he has seen the third probe. He had an appointment two days ago and he couldn't show, but he knows these results. He has had access to it. If he has failed to communicate with them--we know he doesn't talk for Dr. Gerdes very much--so that is not our fault. They have known what these results are. They know the instant they are available. And so I don't think that is a legitimate legal complaint and I don't think that is a sincere statement because it is not in fact what is going on with this case. Umm, we do have to deal with it? They have wanted to deal with it. As you recall, it has come up a couple times and as recently as I think last Wednesday Miss Clark informed me that we were going to do it Thursday morning, and I spent hours on the phone with Mr. Sims that night working out the chronology of it, and then for whatever reason they chose not to bring it up. I think this is a tactical decision. So I can address timing. I would like to clarify that they have had access to whatever remains of those since March, because we proceeded with the Court's permission with the combination of those samples back in March, and I can't tell you right now what remains, but I know I'm almost positive at least one swatch has always remained from 305, I'm not certain on that. So the idea that they have been denied access is not true, it is not the reality, it is not the case. I can explain the whole chronology, but that doesn't seem to be the basis for the objection. The objection seems to be we don't have to deal with it yet because it is not proper for rebuttal, and we say, well, we just want to ask a hypothetical that is based on the reality of it so we don't have to drag Dr. Gerdes back here and confront him with it, so I think I've addressed the specific basis for their objection today. I would be happy to discuss any of the other issues that I thought were germane, but I don't see that there is a need to. We would just like to ask him, because obviously they seem to have conceded that the stuff in the console may have been, you know, may have been from some phantom, but it has nothing to do with this case, so those results they seemed to have conceded the legitimacy. And there has been absolutely no discussion by Dr. Gerdes on a technical basis of any complaints about what is there, and in fact the results are corroborative, totally corroborative of the relative intensities of the mixtures.
KEY QUOTENo. He has testified to his concerns that those samples were left out in the environment and unprotected and he has expressed a lot of concerns about that, about the Bronco stains.
Sure, unless somebody planted them on August 25th and then they weren't out there very long, so I guess that is the alternative theory that still persists to today.
Well, I think that the argument admits too much. They want to ask him a hypothetical question about a set of test results that haven't been reported. We don't have any quantifications on the amount of DNA in those results. The results as Mr. Harmon indicates are not--the testing isn't even completed, so it seems to me that it is highly improper and it ought to be dealt with at the appropriate time. I appreciate concerns about this, sure, because I knew the testing was ongoing and I don't agree with his characterization of the results, frankly, from what I've been told.
I'm going to sustain the objection to the proposed hypothetical question regarding RFLP testing at this point for this reason: I still have the concern about the delay in the starting of the testing and whether or not any RFLP results will be admissible before this jury. That is an issue that is yet to be resolved. The Prosecution still has the ability to call--recall one of their expert witnesses to say--to evaluate Dr. Gerdes' testimony that RFLP testing, given a high amount of DNA availability, will corroborate the other results. Do you agree with that, do you agree with that, with regards to this particular result, 305 from the Bronco? So they have the ability to present that evidence in an affirmative manner before the jury, so I will sustain the objection to a proposed hypothetical question. And having said that, let's take our break for fifteen at this point.
KEY QUOTEWe have now produced a three-probe RFLP match which shows a mixture which is consistent with the blood of the Defendant, Mr. Simpson, and the blood of Ronald Goldman
It is totally speculative, and frankly, it is dirty pool.
I'm not tolerating any more of this stuff.
Yeah, but then there would be EDTA in it, wouldn't there? Until--you know where that goes.
I'm going to sustain the objection to the proposed hypothetical question regarding RFLP testing at this point for this reason: I still have the concern about the delay in the starting of the testing and whether or not any RFLP results will be admissible before this jury.