All right. Ladies and gentlemen, there are a couple of things I need to take up out of your presence, so I'm going to ask you to step back into the jury room. We will call you out in probably ten or fifteen minutes. All right. Dr. Gerdes, you may step down.
All right. The record should reflect all the jurors have withdrawn from the courtroom. Mr. Scheck.
I would like to just address the Court, your Honor, as to one issue. Your Honor, repeatedly we have seen questioning by the Prosecutors with regard to the Defense could do this, the Defense could do that, and I think that is grossly unfair to Mr. Simpson, because as the Court is aware, the Defendant doesn't have to prove anything. Just harken back to the voir dire. You have told this jury Mr. Simpson could go to sleep if he wanted to.
Obviously he hasn't done that in this case. But I think it is terribly unfair, under the provisions of the state constitution and the U.S. constitution to try to shift the burden to Mr. Simpson. He does not have to prove anything. And I think that whole line of questioning is unfair. I'm making this objection primarily because I think it applies not only to this witness, but to others, and what I'm asking the Court to do is to prohibit the Prosecution from doing this, and also at the appropriate time you will be instructing this jury, but to instruct them the Defense does not have to do any kind of testing in this particular case. And I think it is unfair, unfair inference. You mentioned Mr. Blake a hundred times and now we hear Blake and Taylor and what Gerdes does, could have done, and that is really unfair, your Honor, and I wanted to at least address the Court on this and ask you to give a curative instruction in that regard.
All right. That will be given and has been given as one of the Court's formal instructions. The burden is on the Prosecution. However, there is also a long line of cases that during the course of argument the Prosecution can argue the failure to call logical witnesses.
Doesn't it fly in the face--not to belabor it--doesn't it fly in the face where you start off instructing the jury we don't have to prove anything and then they come along and they do exactly that and then you instruct them that we don't have to prove anything.
I have instructed them in the most graphic way that I can that Mr. Simpson can sit here and sleep through the whole trial if he cares to. That is something you even remember.
KEY QUOTEI appreciate that. And in addition to that, it seems to be an incongruity for them to continue to throw up this thing as though we have to prove anything because we don't have to, and I think that is grossly unfair and that is the point.
I will instruct the jury at the appropriate time that the burden is completely and 100 percent on the Prosecution, rest assured of that. All right. Mr. Scheck.
Your Honor, we have some slides that I will hand up to the Court. I have--give to Prosecution--maybe--what is the best way you want to do this? Do you want to just take a look at them or put them up?
Your Honor, these--these slides would be used in conjunction with--they address the four different examples of errors at LAPD, and if we could turn to--
These are the same four, or depending on how you call it, five mistakes that Mr. Clarke went through, correct?
Yes. This would be a breakout of the genotypes listed on Prosecution's exhibit no. 561, which are the strips, and what it indicates here is the correct type in the proficiency testing sample being 1.2, 1.3 for the sperm fraction and it is labeled with the sign for males, and the LAPD type is reported which was a 1.3, 4. And it indicates the female fraction and indicates that this was, as the testimony indicates, done first by Collin Yamauchi on 9/9/93 and then again Erin Riley did the same sample, got the same result on 9/21, `93. Next slide, please. This indicates--
All right. Rather than sit here and tell me what they are, what are your objections, Mr. Clarke?
I think at least this slide is argumentative and misleading. As far as this witness' own testimony about--and the witness conceded that, yes, these people cannot be excluded, even persons with a different type, because of the potential for the spillover of female DNA and the male DNA. So just judging by in particular the portion of the slide that is in black on the right, this witness has conceded that, no, you wouldn't wrongfully include anyone, you wouldn't wrongfully exclude anyone because the analyst, a trained analyst, must necessarily consider that may be the victim's that is coming out in the sperm fraction.
And the point that Dr. Gerdes made on direct, and we feel has to be cleared up, because it is very hard when you deal with these, you have to break out the types and show exactly what the points are, that the typing result of LAPD of the 1.2, 4 could be, if that--given the fact that the female fraction is a 1.2, 4, the number of different possible suspects in terms of genotypes that could be included by that result in a case would be called a 4, 4 a 1.2, 1.2 and that is why he considers this a mistake, and a serious mistake, and the kind of thing that he has seen in other forensic laboratories, and that is our point.
Actually, I haven't had a chance to look at the others. We have been dealing with this one.
All right. Mr. Scheck, my one concern is that 1-A, B-2 and C-3 do not--are not self-labeled and being as being validation studies.
We will have Mr. Harris put it on the side and I will refer to the exhibits when I show the slides so it is clear what we are referring to.
I also think as to the wrong suspects included, that is very argumentative and misleading.
I will put down "Mock." It is not a real case. It didn't really happen. The point is it could happen if it were a real case and that is his testimony.
Here is the problem. We all agree they have gone through all four or five of these, on both sides. This is a graphic breakout of what is there. I think it is easier to understand in this form as long as it is correctly labeled what it is. This is my only problem.
So we should put down--we will put down "Mock validation study" underneath the 9/9/93, rerun 9/21/93.
Your Honor, I just think they are extremely argumentative in the context of this witness' testimony. The way they are worded and the way I presented I think will do nothing but mislead the jury.
the Defendant doesn't have to prove anything. Just harken back to the voir dire. You have told this jury Mr. Simpson could go to sleep if he wanted to.
I have instructed them in the most graphic way that I can that Mr. Simpson can sit here and sleep through the whole trial if he cares to.
there is also a long line of cases that during the course of argument the Prosecution can argue the failure to call logical witnesses.
it is not a real case. It didn't really happen. The point is it could happen if it were a real case and that is his testimony.