Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Thompson, Mr. Scheck. The People are represented by Mr. Kelberg, Miss Clark, Mr. Clarke, Mr. Harmon. The jury is not present. Counsel, anything we need to take up before we invite the jurors to rejoin to us conclude the cross-examination of Dr. Gerdes?
Good morning. From my attire you may expect that I was not anticipating a visit to your courtroom this morning and that was the case except that I was informed by way of a communication between Mr. Yochelson of our office and Mr. Douglas of the Defense late Friday afternoon that in the most recent witness list for this week the Defense has named doctors Baden and Wolf as I think witnesses or prospective witnesses 4 and 5. I had asked Mr. Yochelson on Friday, August 4th, to make a formal request of Mr. Shapiro for any report from either of these doctors. We have never received a report from either one of them. And this morning I spoke to Mr. Cochran who indicated that there may not be a report. I pointed out that when Dr. Baden twice has been retained by our office he has always submitted a report, but setting that aside, I learned to try cases when this Court, I believe, learned to try cases before reciprocal discovery, and so trial by ambush is not an unusual procedure by which one learns to do cross-examination. But if this is to be a search for the truth and if there is still the impact of the reciprocal discovery provision of the California constitution, I think it is incumbent that both sides share their materials. In this regard, if there is not going to be a report, if they have made a tactical decision not to have a report prepared, you know, that will be the subject of cross-examination, but I would like to see every note that these people have. I think it is important to remember we know Dr. Baden has been involved with the Defense since at least June 17 because we have a picture of Dr. Baden with Dr. Huizenga examining Mr. Simpson's hand, as I recall, one of the exhibits that has been marked. And so I would like whatever they have, because I have no idea what they are going to testify to. I had a brief conversation with Mr. Shapiro about two weeks ago where he indicated that if one or both doctors Baden or Wolf were called that it might be on a limited basis and he would have a report. Apparently that may be changing. Again, I will cross-examine these people if I don't get a note and I don't get a report, but I don't think that the People's request for reciprocal discovery is advanced if in fact I do not stand here and make a request through the Court to get what is in fact our entitlement under that California constitutional provision.
Your Honor, in this matter, we are very, very aware of our responsibilities under reciprocal discovery. I think you, I and Mr. Kelberg all heard how to try cases under the old system and we have adjusted to the new system obviously. That is part of being a lawyer, I suppose, and fairly intelligently is the ability to adapt. The problem is Mr. Shapiro is not here and may not be here today. He will be handling any witnesses that we call from a forensic pathology standpoint and he is mindful of his obligations. It is an interesting argument, and I would just like to point this out, your Honor: If witnesses don't normally write reports, we don't have to ask him to do a report. In this case several times we said write a report so we don't have any problem. We still get whipsawed and can't win. The People should understand that. We can't win. If they normally don't write report, then the Prosecution says, well, gee, that report came late and we want a delay. We cannot win. And let's make that clear. This search for truth works for both sides, North Carolina and elsewhere. We were entitled to that also. If there are notes--I can tell you if they don't normally write reports--but Mr. Shapiro makes a decision, as we have done with other witnesses, says write a report, so we don't have any problems with this, but I can't say. He is not here yet.
Judge, if he doesn't come, he may be working with them, I will be speaking with them and report it back, and Mr. Kelberg, we can let him know at his office.
Your Honor, Mr. Cochran was kind enough to identify the last name on this witness list who none of us was familiar with, J. Uko, u-k-o, and apparently Dr. Uko is pathologist from buffalo. My request goes to Dr. Uko as well as doctors Baden and Wolf. And I have nothing to say about North Carolina. I am not trying to make a pitch for anything other than the limited responsibilities I face at the end of this week.
Actually two items, if I might bring them to the Court's attention. The first relates to the grant proposal and it is my intention to--the Court may recall that that proposal was faxed to this courtroom. Having reviewed that material, there are two areas of inquiry that I wish to make, but not as to the specifics of the technology contained in it. I wanted to bring that to the Court's attention before I launched into that.
Perhaps he could--Mr. Clarke at side bar or sealed record can indicate what that is, so that I can just--
Approaches in the laboratory of the witness. I can be more specific, but I would like to do it outside the presence of the witness.
Mr. Clarke indicates it has nothing to do with the particular topic, just the technique involved.
Correct. Two areas of inquiry that I wish to make is there is reference in the proposal and a description of this witness' laboratory as being a laboratory that uses primarily, quote, home-brewed, unquote, methods as opposed to kits. And I think that is an area that is significant in the context of this witness' prior testimony, so that is a fairly brief and narrow area. Actually it is probably a couple of questions. The second area relates to a further description of the laboratory as a progressive reference laboratory that rapidly seeks to implement new DNA technologies, and I think that obviously is relevant to this inquiry as well. So my intent is not to get into the specifics of the proposed technique whatsoever.
The second relates to discovery, and in the same vein as Mr. Kelberg, I would like to give the Court a very brief history of what has occurred since last Monday. Either Tuesday or Wednesday of last week I was provided by Mr. Scheck six pages of Dr. Gerdes' notes. At the noon recess on Friday the Court may recall Dr. Gerdes' referred in his testimony to further notes that he had in his possession and at that time, per Mr. Scheck, those further notes were, quote, provided long ago to the People in discovery. Mr. Blasier indicated at that time that that was not the case and that in fact they were not provided to the People because they were never asked for. Now, I think that is an important comment, particularly in light of Mr. Cochran's comments just a few moments ago that the People are entitled to notes, and so here is a situation in which there were clearly notes that existed, Dr. Gerdes had them in his notebook, the Defense was apparently aware of them and yet we were denied discovery of them until Friday at noon of last week. Now, copies were made of those notes. They contain some important information that I will further address the witness about. We are not seeking a remedy as to this witness at this point, but I think it is important that that event be known, particularly in light of what Mr. Kelberg just stated and also in light of what will be the approaching witnesses at least by the information that we received last Friday as to the next DNA witnesses. It is my request that with respect to those DNA witnesses, and there are at this point three apparently to follow Dr. Gerdes, that Mr. Harmon would ask a brief moment to address the Court about obtaining discovery of those materials immediately, if that is acceptable to the Court.
No. I think you have just made the request on his behalf. I don't think you need to add anything more to that other than to name the witnesses.
Well, at this point I think I would like to add that we have been notified that those individuals are Dr. Speed, Dr. Mullis and Dr. Shields, and at least in terms of any witnesses, particularly those who may involve statistics, that frankly it is a bit inconceivable that there aren't notes about calculations of population frequency data related to this case, and yet at this point we have received zero.
Just the first matter is that I'm glad Mr. Clarke raised this issue. Mr. Blasier and Mr. Douglas, as the Court recalls, were handling the discovery and showed the Court various notes and had made a legal determination, since they are the California lawyers, under the Hines case, as to which notes were turned over or not. And the two sets of notes that we are talking about is that Dr. Gerdes made some handwritten notations when he did his lab tour and pictures were taken when all the LAPD people were there and they took the same pictures and they were there on the same tour. I had mistakenly believed that those notes had been turned over. That was just a mistake. And they were given to them at that time. I was informed by Mr. Blasier that those were in the category of notes that are turned over when the witness testified. They are not--they were not notations of any reports or calculations or examinations that he had done. I had made sure that the charts, contamination analysis, the unexpected allele analysis, had been turned over months ago along with Dr. Gerdes' report. The other notes that Mr. Clarke is referring to are handwritten notes that Dr. Gerdes made that are really inventories of what is contained in the raw material. In other words, he has a series of notebooks here that contain some but not all of the data and on the first page of each section he has notations about what is--like a table of contents as to what is in the other materials. And I would just note in passing that at various times when I approached the--the witness stand when Gary Sims was testifying, and I know it was true of Renee Montgomery and Mr. Yamauchi, other witnesses, they had similar kind of table of contents notes in terms of the materials and other notations to themselves that I suppose I now understand under the rules I could have asked for at that time, but I saw what they were. So those are the nature of those notes and I just want to make that clear, because I don't want to get into any trouble on discovery obligations. I am relying on the California lawyers here who have been to the Court and have gone through these materials.
Well, at this point, since Mr. Clarke is not asking for any particular sanction, let's not waste a lot of time.
Well, Mr. Neufeld will address Dr. Speed who he is going to put on, and as far as--and he is actually putting on the other two witnesses, and at this time we have nothing that--no reports and no notes in the nature of anything that we think we have to disclose at this time.
No, there is no--there is no--I--I can--unless they are doing something now, there is nothing in the nature of statistical calculations that Dr. Speed is doing, I feel quite certain of that, but again, that is--Mr. Neufeld will know better than I, but I feel fairly certain of that.
Your Honor, our only request, before he asks any questions about the term "Home-brewed," that we can find it in the report. He doesn't know the page.
trial by ambush is not an unusual procedure by which one learns to do cross-examination. But if this is to be a search for the truth and if there is still the impact of the reciprocal discovery provision of the California constitution, I think it is incumbent that both sides share their materials.
We can't win. If they normally don't write report, then the Prosecution says, well, gee, that report came late and we want a delay. We cannot win.
frankly it is a bit inconceivable that there aren't notes about calculations of population frequency data related to this case, and yet at this point we have received zero.