HELLO AGAIN, YOUR HONOR. I KNOW YOU'VE SEEN A SERIES OF LETTERS I'VE WRITTEN AND I JUST HAPPEN TO COINCIDE WITH THE COURT'S ORDER THAT YOU FILED LAST WEEK ON FEBRUARY 8. WE'VE BEEN DYING TO FIND OUT WHAT THE DEFENSE DID WITH THE SAMPLES THEY OBTAINED BACK IN OCTOBER, 47, 50 AND 78.
47 AND 50 ARE IN THE BUNDY TRAIL AND 78 IS A STAIN ON THE BOTTOM OF MR. GOLDMAN'S SHOE. WE COMPLETED THE TESTING THAT WE CONTEMPLATED AT THAT TIME AND THE COURT, FOLLOWING UP ON A LETTER BY MS. KAHN, ISSUED AN EX PARTE ORDER AND THOSE ITEMS WERE RELEASED TO THE DEFENSE BACK IN OCTOBER. AND SO WHEN I APPRECIATED THAT AND SAW WHERE WE WERE GOING WITH THE NEW DEFENSE TESTING, I SENT A LETTER ON FEBRUARY 3RD ASKING FOR AN ACCOUNTING OF THOSE THINGS, AT LEAST THE PACKAGING, THE CHAIN OF CUSTODY. ALL OF THESE THINGS I REMIND YOU ARE REALLY FOLLOWING A REACTION TO MR. COCHRAN'S OPENING STATEMENT WHERE WE WANT TO BE ABLE TO ACCOUNT FOR THESE THINGS. AND SO FEBRUARY 3RD, I WROTE A LETTER THAT I HAVE NEVER GOTTEN ANY ACKNOWLEDGMENT OF ASKING FOR AN ACCOUNTING OF THEM. FEBRUARY 6TH, I MENTIONED THEM IN ANOTHER LETTER. FEBRUARY 7TH, I MENTIONED THEM IN ANOTHER LETTER. AND NOT HEARING ANY RESPONSE AND REALIZING THAT YOU RECOGNIZE OUR LEGAL ENTITLEMENT TO AN ACCOUNTING FOR THESE THINGS ON THE SAMPLES THAT THEY MIGHT TEST PERSPECTIVELY, I WROTE YOU A LETTER ON THE 10TH ASKING FOR YOUR INTERVENTION IN TRYING TO GET THEM TO ACCOUNT FOR THIS. AND THE REASON I THINK THE TIME IS IMPORTANT IS BECAUSE IT'S MY OPINION THAT IF THEY'RE NOT GOING TO ACCOUNT FOR THINGS THAT WE GAVE THEM MONTHS AGO, WE'RE NEVER GOING TO FIND OUT WHAT HAPPENS TO SAMPLES THAT WE GIVE THEM RIGHT NOW, IF THEY DISAPPEAR, WHEREVER THEY'RE GOING TO DISAPPEAR, IF THEY CONSUME OR ALTER THEM. SO I GUESS NOW IS THE TIME TO PERHAPS INQUIRE OF THE DEFENSE WHAT HAPPENED TO THOSE ITEMS AND ARE WE GOING TO GET THEM BACK AND CAN WE HAVE THE KINDS OF PROTECTIONS OR INFORMATION THAT YOU ORDERED THEM TO PROVIDE PERSPECTIVELY ON THESE NEW ITEMS.
AFTERNOON, YOUR HONOR. IF I MIGHT STATE, THE COURT'S ORDER ON OCTOBER 26 REGARDING THESE THREE ITEMS PROVIDED THAT WE BE PROVIDED WITH A SMALL SPLIT FROM A REMAINING SWATCH IN EACH OF THOSE THREE INSTANCES. THERE IS NOTHING IN THAT PARTICULAR ORDER REQUIRING US TO ACCOUNT FOR THESE ITEMS TO THE PROSECUTION, TO TELL THEM WHAT WE DID WITH THEM, WHERE WE SENT THEM, WHAT TESTS WE PERFORMED ON THEM AND WE DON'T FEEL WE ARE OBLIGATED TO DO THAT. ON FEBRUARY 3RD, MR. HARMON IN HIS LETTER IN ESSENCE IS TRYING TO BLACKMAIL US BY SAYING WE ARE NOT GOING TO GIVE YOU ANY MORE DISCOVERY UNTIL YOU TELL US WHAT YOU DID WITH THESE ITEMS AND WHAT TESTING YOU PERFORMED ON THEM, WHERE THEY ARE NOW AND GIVE THEM BACK TO US, WHICH IS NOT REQUIRED BY ANY COURT ORDER FROM THIS COURT. THE ORDER THAT YOU DID ISSUE LAST WEEK DOES NOT SAY THAT WE ARE REQUIRED TO PROVIDE THEM WITH ANY KIND OF AN ACCOUNTING. IT SAYS THAT FIRST OF ALL, WE ARE ALLOWED TO CONDUCT OUR TESTING IN PRIVATE, WHICH IS OUR RIGHT UNDER THE LAW. THE PART OF THE ORDER THAT APPLIES TO ACCOUNTABILITY SAYS THE DEFENSE MAY CONDUCT ITS TESTING IN PRIVATE WITH THE PROVISO THAT ANY ALTERATION, USE OR CONSUMPTION CAUSED BY THE DEFENSE TESTING WILL BE EXPLAINED TO THE TRIER OF FACT AS HAVING OCCURRED DURING TESTING BY THE DEFENSE. I INTERPRET THAT TO MEAN THAT WITH A PIECE OF EVIDENCE THAT WE CAN DO SOMETHING WITH, FOR INSTANCE, THE BUNDY GLOVE, WHICH TO OUR KNOWLEDGE THEY HAVEN'T EXAMINED AT ALL, IF WE WERE TO TAKE THAT AND TAKE A CUTTING FROM IT FROM AN AREA THAT THERE MIGHT BE A DOG BITE, FOR INSTANCE, AND DO SOME TESTING ON IT, THEN WHEN THEY INTRODUCE THE GLOVE, THEY COULD TELL THE JURY THE REASON WHY THERE'S A PIECE CUT OFF OF IT WAS, IT WAS GIVEN TO THE DEFENSE AND THAT'S IT; THAT WE'RE NOT REQUIRED TO GIVE THEM THAT PIECE BACK, WE'RE NOT REQUIRED TO TELL THEM WHAT WE DID TO IT.
WELL, YOU ARE REQUIRED TO GIVE THE PIECE BACK IF IT'S STILL AVAILABLE IF IT HASN'T BEEN CONSUMED IN THE TESTING. THAT EVIDENCE DOESN'T DISAPPEAR INTO A DARK HOLE. I REALIZE SOME OF IT IS GOING TO BE CONSUMED OR DESTROYED IN SOME WAY THROUGH THE TESTING PROCESS. BUT IF IT STILL EXISTS, THEN IT OUGHT TO BE PUT BACK OR AT LEAST SHOWN TO THE JURY WHAT'S THERE.
WELL, THAT'S A DIFFERENT ISSUE, WHETHER WE HAVE TO TELL THEM WHAT TESTING WE WERE DOING.
CERTAINLY IF WE INTRODUCE SOMETHING THAT WE DID -- OBVIOUSLY, WE HAVE TO ACCOUNT FOR THE CHAIN OF CUSTODY OF ITEMS. THAT'S NOT THEIR JOB. THAT'S OUR JOB. FURTHER, IT WOULD BE IMPROPER FOR US TO RAISE QUESTIONS ABOUT WELL, WHERE DID THAT LITTLE PIECE GO WHEN WE KNOW WE GOT IT. AS OFFICERS OF THE COURT, THAT WOULD BE IMPROPER AND WE WOULD NOT DO THAT. SO CERTAINLY, THEY HAVE NO REQUIREMENT TO ESTABLISH A CHAIN OF CUSTODY FOR A PIECE OF EVIDENCE THEY HAVE NOT TESTED THAT THE COURT ORDERED WE BE GIVEN.
ALL RIGHT. WELL, MR. BLASIER, LET'S SORT OF CUT TO THE CHASE HERE. 47, 50 AND 78, THESE ARE ALL SWATCHES; AM I CORRECT?
AND YOU'VE BEEN GIVEN A CUT OF EACH SWATCH OR A SPLIT OF THE SWATCH TO CONDUCT YOUR TESTING, CORRECT?
AND THE MAJORITY OR THE MAIN PART OF THE SWATCH IS IN POSSESSION OF THE PROSECUTION, CORRECT?
SO YOUR POSITION IS THAT YOU ARE ENTITLED TO DO WHATEVER TESTING IT IS THAT YOU WANT TO DO. THE ONLY THING THAT YOU'RE REQUIRED TO DO IS SAY OF THE SWATCHES THAT REMAIN, 47, 50 AND 78, YOU JUST HAVE TO EXPLAIN THAT WE TOOK THIS SNIPPET OUT OF IT.
I'M NOT SURE EVEN THEY SHOULD BE ALLOWED TO BRING THAT UP TO THE JURY. BUT I THINK --
WELL, IF THERE'S AN ISSUE AS TO THE -- WHAT'S THERE AND WHAT'S BEEN TESTED, I THINK THE JURY IS ENTITLED TO KNOW THAT YOU TOOK A PORTION OF IT FOR TESTING.
THAT'S THE TRUTH AND WE DON'T HIDE IT FROM THE JURY. BUT I AGREE WITH YOU, YOU ARE ENTITLED TO DO YOUR TESTING IN PRIVATE AND DEEM THOSE RESULTS PRIVATE AND USE THEM IF YOU FEEL FIT. I AGREE WITH THAT TOO.
TO WHICH I POINT OUT THAT WE HAVE NOT BEEN GIVEN ANY OF THE ITEMS, THE EDTA TESTING --
I'M HAPPY WE BROUGHT THIS UP, YOUR HONOR, BECAUSE OBVIOUSLY THEY DON'T APPRECIATE THAT YOUR ORDER FROM LAST WEEK WAS BASED ON THE LAW. AND WHILE THEY MAY HAVE THOUGHT THAT THEY DIDN'T HAVE TO COMPLY WITH THE REQUIREMENTS OF THE LAW IN OCTOBER, I THINK YOU'VE SET THE RECORD STRAIGHT. WHENEVER CASE -- WHENEVER PHYSICAL EVIDENCE IS OBTAINED, WE ARE ENTITLED TO CONDUCT TESTING UNDER THESE CIRCUMSTANCES. SO REGARDLESS OF WHETHER OR NOT THE ORDER -- AND IT WAS AN EX PARTE ORDER AND IT GAVE THEM THE ENTIRE BALANCE OF THE SAMPLES. THERE WERE NO CUTTINGS MADE. AND IF YOU LOOK AT YOUR ORDER AND THE RECORDS, WHAT REMAINED WAS TURNED OVER TO THEM IN ITS ENTIRETY. SO PERHAPS MR. BLASIER DOESN'T APPRECIATE THAT. ALL WE'RE SEEKING --
SO YOUR POSITION IS THAT THESE WERE NOT SPLITS WHEN THEY ARE ACTUALLY THE ENTIRE REMAINING SAMPLE.
YES. YES. I MEAN YOUR ORDER WAS CLEAR, TURN OVER THOSE ITEMS. AND, YOU KNOW, JUDGE, WHEN YOU ORDER THE POLICE DEPARTMENT TO TURN OVER ITEMS, THEY TURN IT OVER. SO I WAS SURPRISED THAT THEY MIGHT. BUT THAT IS IN FACT WHAT THEY TURNED OVER. EVERYTHING -- THE BALANCE OF THOSE ITEMS WERE TURNED OVER. NOW, WE HAD COMPLETED OUR TESTING AT THIS TIME, SO WE'RE NOT COMPLAINING ABOUT IT. BUT THERE HAVE BEEN CHARGES ABOUT MISHANDLING OF EVIDENCE AND WE WANT AN ACCOUNTING. WE'RE NOT CURRENTLY SEEKING THE RESULTS. I DON'T THINK THE ISSUE'S BEEN ADDRESSED, ARE THEY DONE WITH THEM, BECAUSE I THINK WE ARE ENTITLED TO THEM. WE PROVIDED THEM ACCESS FOR THOSE THINGS. AND IF THEY COME BACK -- IF THE GLOVE WERE TURNED OVER TO THEM AND CAME BACK WITH HOLES IN IT, I THINK WE WOULD BE ENTITLED TO NOT ONLY PROVE THAT THOSE HOLES WERE MADE BY THEM, BUT IF THERE WERE OTHER SAMPLES THAT WERE NOT CONSUMED, I THINK WE ARE ENTITLED TO THEM. IT IS OUR EVIDENCE. UNDER THE LAW, WE'RE REQUIRED TO SHARE IT WITH THEM. WE ARE SHARING IT WITH THEM AND --
LET ME ASK MR. BLASIER THEN A QUESTION. MR. BLASIER, TO YOUR KNOWLEDGE, HAVE THESE ITEMS, 47, 50 AND 78 BEEN CONSUMED IN THE TESTING OR IS THERE PART OF THAT SAMPLE STILL OUT?
I COULD SAY I HAVE THE OCTOBER 26 ORDER HERE. IT SAYS A SPLIT. NOW, IF THEY GIVE US MORE THAN WE'RE ENTITLED TO, THAT'S NOT OUR PROBLEM.
BUT IF YOU HAVEN'T USED IT, I AGREE THAT WHATEVER REMAINS STILL BELONGS TO THE PROSECUTION AND/OR THE COURT. THE COURT HAVING ORDERED YOU TO HAVE POSSESSION OF IT, THE COURT CAN THEN ORDER YOU TO RETURN WHATEVER HAS NOT BEEN CONSUMED IN THE TESTING. DO YOU AGREE TO THAT?
I ASSUME THE COURT CAN DO THAT. I MIGHT STATE THOUGH, UNDER YOUR ORDER OF LAST WEEK, IF THAT APPLIES TO THIS EARLIER SAMPLE -- LET'S ASSUME IT DOES -- THEN IT STILL DOESN'T REQUIRE US TO GIVE THEM AN ACCOUNTING. ALL THEY CAN --
MR. BLASIER, WE'RE USING THE WORD "ACCOUNTING" IN AN INARTFUL WAY. ALL THAT MEANS IS, YOU GET TO TAKE YOUR SPLIT, YOU GET TO DO WHATEVER IT IS YOU WANT TO DO WITH THAT, BUT YOU HAVE TO TELL US HOW MUCH YOU TOOK TO EXPLAIN TO THE FINDER OF FACT IF IT BECOMES AN ISSUE WHY PART OF IT IS MISSING AND YOU HAVE TO GIVE BACK WHATEVER IT IS YOU DON'T USE DURING YOUR TESTING. THAT'S ALL AN ACCOUNTING IS. IT DOESN'T MEAN WHAT TESTS YOU DID. IT DOESN'T MEAN WHAT THE RESULTS ARE. IT DOESN'T MEAN IF IT IS GOOD OR BAD. WHO KNOWS?
THIS IS WHAT MR. HARMON SAYS. WE HAVE TO TELL HIM IN HIS FEBRUARY 3RD LETTER BEFORE HE'LL GIVE US ANY MORE DISCOVERY OF OTHER THINGS OF WHAT THE CURRENT STATUS IS, WHERE THE SAMPLES ARE, THE CIRCUMSTANCES OF THE TESTING, WHAT TESTS WERE USED TO CONSUME THE SAMPLES. THAT'S NOT WHAT YOU ARE SAYING WE HAVE TO TELL THEM?
NO. I'M NOT TELLING YOU YOU DON'T HAVE TO DO THAT. I'M TELLING YOU YOU DO HAVE TO TELL US IF THERE'S ANYTHING THAT'S LEFT, WHERE IT IS BECAUSE WE MAY WANT IT BACK.
WE'LL CERTAINLY CHECK ON IT. NONE OF THAT IS RELATED TO ANY OF THE OTHER EXHIBITS I MIGHT ADD.
I AGREE. SO HOW ABOUT TOMORROW, YOU CONTACT WHOEVER'S GOT 47, 50 AND 78, FIND OUT WHAT'S LEFT. AND I WANT TO MAKE SURE -- AND I WANT TO BE CRYSTAL CLEAR, THAT I WANT YOU TO BE ABLE TO RETURN TO THE COURT WITHIN 48 HOURS ANY OF THESE ITEMS THAT YOU HAVE OUTSTANDING FLOATING AROUND BECAUSE I HAVE A FEELING WE ARE ABOUT -- IN THE NEXT WEEK TO 10 DAYS ABOUT TO REACH THE PEOPLE'S PRESENTATION OF PHYSICAL EVIDENCE, WHICH IS GOING TO MEAN THIS STUFF HAS TO BE IN COURT READY FOR PRESENTATION TO THE TRIER OF FACT.
THAT IS THAT, SO FAR, WE STILL HAVEN'T SEEN THE LIST MR. HARMON PROMISED TO PRODUCE AT THE END OF BUSINESS TODAY.
THE EDTA TESTS THEY WANT TO DO OBVIOUSLY IS GOING TO -- I BELIEVE IS GOING TO DELAY US BEING ABLE TO SEE THIS EVIDENCE AT ALL BEFORE THEIR WITNESSES TESTIFY ABOUT THE PHYSICAL EVIDENCE.
MAYBE. MAYBE. I HAVEN'T SEEN THEIR PROPOSAL FOR EDTA TESTING. I ASSUME IT'S GOING TO BE SOME KIND OF CHROMATOGRAPHY, WHICH IS A RELATIVELY EXPEDITIOUS TESTING SINCE I READ UP ALL ABOUT EDTA. FUN STUFF. I ASSUME THAT THEY'RE GOING TO TELL ME SOMETHING IN THEIR FILING TODAY THAT THEY DON'T NEED THE ENTIRE REMAINING SAMPLE TO CONDUCT THEIR EDTA TESTING ON SOME OF THESE THINGS I ASSUME. IS THAT CORRECT, MR. HARMON?
ALL THE NON-BIOLOGICAL EVIDENCE, OBVIOUSLY WE'RE NOT INTERESTED. BUT NO, THAT'S NOT QUITE CORRECT. WE INTEND TO RETAIN ALL THE BIOLOGICAL EVIDENCE, BUT --
SEE, THAT IS ONE OF THE PROBLEMS BECAUSE I GUARANTEE YOU, WE ARE GOING TO HEAR -- WE'VE ALREADY HEARD THESE LITTLE RUMORS THIS HAS NEVER BEEN DONE. THE SMALLER THE SAMPLE -- YOU KNOW, WE ARE ESSENTIALLY TRYING TO PROVE A NEGATIVE MEANS SOMETHING, THAT THE ABSENCE OF EDTA MEANS IT'S NOT THERE. SO THE LARGER AMOUNT OF SAMPLE YOU HAVE FROM WHICH YOU DERIVE YOUR SENSITIVITY LEVEL IS CRITICAL. YOU KNOW, WE'RE KIND OF WAY BACK WHERE YOU WERE LAST SUMMER IN TRYING TO DECIDE WHETHER THE DEFENSE COULD SNAG SOME EVIDENCE AHEAD OF TIME THAT COULD JEOPARDIZE THE POTENTIAL FOR RESULTS. WE DIDN'T CREATE THIS DILEMMA. AND, YOU KNOW, TO SUGGEST THAT WE'RE WITHHOLDING THINGS FROM THEM -- MANY OF THESE THINGS WERE AVAILABLE TO THEM FOR QUITE SOME TIME.
LET ME ASK YOU THIS. IN THE RESPONSE THAT YOU'RE ABOUT TO FILE WITH THE COURT AND WITH OPPOSING COUNSEL, DO YOU CONTAIN IN YOUR RESPONSE A TESTING SCHEDULE AND EXPLANATION TO THE COURT AS TO WHY THIS IS NECESSARY?
THE TEST, AS YOU READ UP ON IT, IS A ONE- OR TWO-DAY TEST. SO THE TEST CAN BE DONE EXPEDITIOUSLY. ONE OF THE PRACTICAL PROBLEMS THAT WE ALL FACE IS, ALL OF THE EXPERTS IN THIS CASE ARE UP HAVING FUN UP IN SEATTLE AT THE AMERICAN ACADEMY OF FORENSIC SCIENCE THIS WEEK. SO I DON'T THINK THERE'S TOO MANY PEOPLE THAT CAN DO ANYTHING THIS WEEK.
WE CAN LOOK AT THEM. WE WANT TO LOOK AT ALL OF THEM. THE OTHER ISSUE I WANTED TO SAY SOMETHING ABOUT TODAY, MR. SCHECK HAS BEEN IN TOUCH WITH DRS. LEE, BADIN AND WOLF AND I BELIEVE HE CAN MAKE AN OFFER OF PROOF WHY WE NEED THESE SENT ON TO ALBANY, WHY WE CAN NOT DO THAT IN THIS PARTICULAR AREA IF THAT'S OKAY WITH THE COURT.
LET'S NOT JUMP AHEAD. I'M REALLY INTERESTED IN THE ROADBLOCK HERE. I'M NOT SO CONCERNED ABOUT EVERYTHING GOING TO NEW YORK. IF YOU CAN ASSURE ME THIS STUFF ISN'T GOING TO DISAPPEAR INTO A BLACK HOLE AND IF I TELL YOU I WANT IT BACK IN COURT IN 48 HOURS, YOU CAN GET IT BACK HERE IN 48 HOURS, I'M NOT THAT CONCERNED ABOUT IT. THE PROBLEM I HAVE OBVIOUSLY IS, I DON'T WANT PLANE CRASHES AND BURNINGS AND TAKING ALL OF OUR EVIDENCE WITH IT. BUT I'M MORE CONCERNED ABOUT THE TIMETABLE AS TO WHEN YOU GET THIS STUFF TO DO YOUR TESTING VIS-A-VIS THE EDTA TESTING THAT WE NEED TO DO. SO, MR. HARMON, CAN YOU GIVE ME A READERS DIGEST VERSION AS TO SOME OF THESE ITEMS, HOW DO WE TEST FOR EDTA, HOW MUCH OF THE SAMPLE DO WE NEED AND WHAT DO WE HAVE LEFT SPECIFICALLY ITEM BY ITEM? I AGREE WITH YOU THAT ROCK HUDSON'S AUTOBIOGRAPHY IS NOT SOMETHING OR CARLITO'S WAY OR WHATEVER IT WAS, THAT WE DON'T NEED TO ARGUE ABOUT. BUT THE BIOLOGICAL SAMPLES, CAN YOU TELL --
I MERELY REPEATED WHAT I PUT IN THE LAST LETTER I WROTE ON THIS, THAT WE INTEND TO PURSUE -- ONE OF THE PROBLEMS WITH BEING TOO SPECIFIC IS, AS THE DEFENSE KNOWS, BECAUSE DR. BLAKE WAS JUST UP AT THE DOJ LAB AGAIN TODAY, THE TESTING IS GOING ON EVERY DAY. HE WAS UP THERE LOOKING AT THE LATEST SET OF RESULTS. SO DEPENDING ON WHAT WE PRODUCE FROM THEM, WE MAY WANT TO PURSUE THEM FOR EDTA. WE'VE HEARD SOME TESTIMONY ABOUT -- FROM OFFICER RISKE ABOUT THE REAR GATE AT BUNDY. WELL, WE'RE PROBABLY GOING TO HAVE TO LOOK AT ONE OF THOSE STAINS NOW. SO I HONESTLY CAN'T -- AND I WISH -- YOU PROBABLY KNOW MORE ABOUT GAS CHROMATOGRAPHY THAN I DO AT THIS POINT, YOUR HONOR. I CAN TELL YOU IT'S A FAST TEST. WE PROPOSE TO SEND WHAT HAS TO BE SENT THE WEEK OF THE 27TH TO HAVE IT BE AT THE FBI LAB THE WEEK OF THE 27TH AND HAVE IT BACK HOPEFULLY BY THE END OF THE WEEK.
THAT GIVES US PLENTY OF TIME TO LOOK AT IT. LET ME MAKE A SUGGESTION. WE WILL NOT PERFORM ANY TESTS THAT WOULD RESULT IN ANY DESTRUCTION OF ANY EVIDENCE THAT THEY WANT TO DO EDTA TESTING ON WITHOUT INFORMING THE COURT ON IN ADVANCE, AND THEN WE CAN DECIDE WHAT HAPPENS AT THAT POINT.
THAT'S NOT A VERY WISE COURSE TO TAKE AT THIS POINT. I MEAN THEY'VE GOT -- YOU KNOW, THEY'VE MADE THESE ALLEGATIONS ABOUT THE POLICE DEPARTMENT. THERE IS NO REASON WHY THEY DIDN'T DO THIS BEFORE AND THERE'S NO REASON WHY THEY SHOULD BE ENTITLED TO DO THIS NOW AFTER THOSE ALLEGATIONS, YOUR HONOR. THAT'S LIKE THE FOX GUARDING THE HEN HOUSE. PARDON ME. THAT MAKES NO SENSE. YOU KNOW, WE'VE HEARD -- WE ARE GOING TO HERE FROM THIS DR. GERDES ABOUT HOW CONTAMINATION IS PREVALENT. IT'S VERY LIKELY WE'RE GOING TO HEAR ABOUT THESE 900 LITTLE SWATCHES, BREATHING ALL OVER THEM, DOING ALL THESE THINGS THAT HE'S GOING TO CRITICIZE US FOR HAVING DONE DURING OUR TESTING.
IT'S FUNNY HOW THESE ARGUMENTS ARE THE SAME DEPENDING ON WHICH SIDE I'M HEARING THEM FROM.
MR. HARMON, I WOULD LIKE YOU TO -- YOU CAN'T HAVE IT BOTH WAYS BECAUSE THE DELAY UNTIL THE 27TH IS NOT FAIR TO THE DEFENSE. IT'S ALSO NOT FAIR TO THE PROSECUTION'S CASE TO HAVE ALL THIS STUFF GO INTO A BLACK HOLE NOT KNOWING WHERE IT'S GONE. SOMEBODY'S GOT TO COMPROMISE HERE. AND MY SUGGESTION IS THAT WE GET THE FBI TO DO THIS STUFF NEXT WEEK RATHER THAN THE 27TH.
YOUR HONOR, MAY I MAKE ANOTHER COMPROMISE SUGGESTION, THE ONE MR. BLASIER WAS FOLLOWING UP ON? AND THAT IS, OUR DILEMMA IS THIS. WE HAVE NOT BEEN ALLOWED TO TOUCH THIS EVIDENCE, TO LOOK AT IT FOR EIGHT MONTHS. DR. LEE CAME OUT VERY SOON AFTER IT WAS COLLECTED.
OUR PROPOSAL IS THAT THIS EVIDENCE BE SHIPPED OUT IMMEDIATELY AS SOON AS POSSIBLE TO ALBANY COLLEGE OF MEDICINE. WE'LL PUT IN THE NECESSARY AFFIDAVITS. BUT IT IS -- AS MR. BLASIER TOLD YOU, I SPOKE WITH ALL THESE DOCTORS ON SUNDAY HAVING TO DO WITH EQUIPMENT. IT'S AN AUTOPSY LABORATORY. WE'LL DO THIS EXPEDITIOUSLY. SO -- BECAUSE WE NEED TO SEE THE EVIDENCE AND EXAMINE IT SO THAT WE CAN INTELLIGENTLY CROSS-EXAMINE WITNESSES. WE WILL NOT PERFORM ANY DESCRIPTIVE TESTS OR TAKE ANY SAMPLING THAT MIGHT IN ANY WAY INVOLVE BLOOD AT THIS POINT SUCH THAT IT WOULD IMPAIR THE EDTA TESTING. THAT FRANKLY IS SOMETHING THAT I WOULD IMAGINE IS GOING TO COME EITHER AT THE END OF THE PROSECUTION'S CASE OR IN REBUTTAL IF NECESSARY. BUT THE POINT IS, NOW WE'RE GETTING TO THE POINT WHERE PEOPLE ARE PRESENTING THE CRIME SCENE EVIDENCE, AND IT DOES SEEM I WOULD SUBMIT TO THE COURT A LITTLE UNFAIR THAT AFTER EIGHT MONTHS, AS THESE WITNESSES ARE GETTING ON THE STAND, OUR EXPERTS DO NOT HAVE AN OPPORTUNITY TO LOOK AT THIS EVIDENCE AND EXAMINE IT FOR TRACE EVIDENCE. AND I WOULD POINT OUT THAT BOTH SIDES ARE CORRECT IN THIS REGARD. THAT ANY TIME THAT YOU TAKE EVIDENCE, BE IT A SHIRT, AND SOMEBODY FOLDS IT, LOOKS AT IT, PUTS IT BACK IN THE BAG, TAKES IT OUT AGAIN, EACH DIFFERENT TIME IT CAN CHANGE. THAT'S WHAT WE'RE TALKING ABOUT, MICROSCOPIC EXAMINATION OF TRACE EVIDENCE. AND IT SEEMS TO US THAT OUR TIME HAS COME TO LOOK AT THAT. WE WON'T PERFORM ANY SAMPLING THAT WOULD INVOLVE A DESCRIPTIVE TEST FOR BLOOD THAT IT DISAPPEARS DOWN A BLACK HOLE. THEY CAN HAVE SOMEBODY THERE. THEY CAN MONITOR ALL OF THAT AND WE CAN REPORT BACK TO THE COURT ON ALL OF THIS. BUT THE POINT IS, WE WANT TO SEE IT.
WELL, YOU KNOW, THAT'S A NICE PROPOSAL. I MADE A PROPOSAL ABOUT A WEEK AND A HALF AGO THAT WE DO THIS JOINTLY, YOUR HONOR, THE WHOLE EDTA THING SO THEY CAN HAVE THEIR PEOPLE WATCHING IT, KIND OF LOOKING AT IT, CHECKING IT OUT AND ACTUALLY WATCHING THE WHOLE EDTA TEST. THAT WAS ONE POSSIBILITY, IF THEY WANTED TO FIND OUT IF THERE'S REALLY EDTA IN THERE. I MEAN IT WOULD BE A TREMENDOUS ACCOMPLISHMENT FOR THEM TO FIND EDTA IN THIS BLOOD ON THE SOCK. AND THEY KEEP HEDGING ABOUT IT OR AVOIDING IT LIKE A DIRTY DIAPER PAIL HERE. I HAVE A BIG ONE IN MY HOUSE.
MOST OF THE BLOOD IS NOT PUT INTO EDTA CONTAINERS. SO IT'S NOT REALLY AN ISSUE FOR US.
ALL RIGHT. MR. HARMON, WHAT I WOULD LIKE FOR YOU TO DO -- UNFORTUNATELY, THE FBI IS PROBABLY CLOSED FOR BUSINESS.
HOW LONG DO YOU THINK THIS LATEST BATTERY OF EDTA TESTS WILL TAKE? YOU SAID JUST A DAY OR TWO?
AND YOU AGREE THAT THERE ARE A NUMBER OF ITEMS, HOWEVER, THAT ARE NOT EVEN UNDER THE SCENARIO THAT MR. COCHRAN INFERRED THEY ARE, SOME ITEMS THAT YOU WILL NOT WANT OR NEED TO SUBMIT TO EDTA THAT YOU CAN IMMEDIATELY GIVE TO THE DEFENSE SO THEY CAN START THEIR PHYSICAL ANALYSIS OF SOME OF THESE THINGS?
SURE. IT SEEMS TO ME THERE'S ABOUT 150 OTHER NON-BIOLOGICAL EVIDENCE ITEMS THAT DR. LEE CAN ONLY LOOK AT ONE AT A TIME. SO WE WOULD BE HAPPY TO START MAKING THEM AVAILABLE, HOWEVER THE COURT ORDERS THIS ACCESS. BUT THE BIOLOGICAL EVIDENCE, WE WANT TO MAINTAIN CONTROL OF FOR A VERY SHORT PERIOD OF TIME.
ALL RIGHT. MY PROBLEM IS THAT A SHORT PERIOD OF TIME STARTS ON THE 27TH, WHICH IS JUST TOO FAR AWAY FOR MY COMFORT LEVEL.
BECAUSE THEY'RE ENTITLED TO KNOW TO DO THEIR INVESTIGATION PRIOR TO HAVING TO CROSS-EXAMINE THESE PEOPLE, YOUR EXPERTS. THAT'S WHERE WE ARE. ALL RIGHT. WILL YOU REPORT BACK TO ME THEN TOMORROW MORNING? BECAUSE YOU WILL BE ABLE TO GET UP AT 5:00 IN THE MORNING AND CALL THEM, ALL RIGHT, AND FIND OUT --
THEY ARE IN SEATTLE. SO IT'S THE SAME TIME ZONE, I MIGHT BE ABLE TO GET THEM TONIGHT.
SO IF YOU WOULD THEN, WOULD YOU COMPILE, MR. CLARK, MR. HARMON, A LIST OF THOSE ITEMS THAT YOU ARE GOING TO IMMEDIATELY TURN OVER, THE NON-BIOLOGICAL ITEMS SO WE ACTUALLY GET THAT SHIPPED AS SOON AS POSSIBLE AND COME BACK TOMORROW MORNING, TELL US WHAT OUR TESTING SCHEDULE IS?
SURE. LET ME START -- AND I'LL FILE THIS LETTER ESSENTIALLY BY DEFAULT. ALL THE NON-BIOLOGICAL ITEMS ARE AVAILABLE --
-- AT THE PRESENT TIME, AND WE HAVE EXEMPTING ALL THE BIOLOGICAL EVIDENCE AND SO WE'LL HOPEFULLY MAKE SOME PROGRESS ON THE EDTA TESTS.
WELL, MR. SCHECK, IT LOOKS TO ME -- WHAT I'M TRYING TO ACCOMPLISH HERE IS GETTING THE EDTA DONE BY THE END OF THIS WEEK IS WHAT I'M TRYING TO ACCOMPLISH HERE.
YOUR HONOR, YOU KNOW, WE MAY -- I THINK THAT EXEMPTING ALL THE BIOLOGICAL EVIDENCE, EVEN EVIDENCE WHERE THEY HAVEN'T EVEN CONDUCTED TESTING LIKE THE GLOVE AT BUNDY, I DON'T THINK -- I THINK THAT'S DISINGENUOUS. THAT'S JUST AN EFFORT TO BLOCK OUR ACCESS. THAT'S NOT --
MR. SCHECK, LET'S -- THEY ARE ENTITLED TO HANG ON TO THEIR EVIDENCE NOW THAT THESE ALLEGATIONS HAVE BEEN RAISED FOR REASONABLE AMOUNTS OF TIME TO DO THIS TESTING. I WANT TO MAKE THAT TESTING HAPPEN IN THE SHORTEST PERIOD OF TIME AND THEN YOU'LL GET IT.
WELL, YOUR HONOR, WHAT'S WRONG WITH THE COMPROMISE I'M PROPOSING FOR THIS REASON. I KNOW THAT THE COURT MAY HAVE LOOKED AT SOMETHING ABOUT EDTA TESTING, BUT I'M NOT FULLY SATISFIED I UNDERSTAND EXACTLY WHAT IS INVOLVED, WHETHER --
NOR AM I. BUT THERE ARE SOME TESTS OUT THERE THAT ARE RELATIVELY SIMPLE, AT LEAST AS FAR AS THE SCIENTIFIC COMMUNITY IS CONCERNED, AND GAS CHROMATOGRAPHY IS A RELATIVELY WELL-ACCEPTED CHEMICAL TESTING PROCESS.
WE ARE TALKING ABOUT FORENSIC TESTING. THAT TECHNOLOGY, SOMETHING THAT'S DONE ON FOOD ADDITIVES, IS EXTREMELY DIFFERENT.
ALL RIGHT. WELL, MR. SCHECK, NOTHING IS GOING TO HAPPEN BETWEEN NOW AND TOMORROW MORNING. ALL RIGHT. I EXPECT AN INTELLIGENT ANSWER TOMORROW MORNING, MR. HARMON, ALL RIGHT, AND I EXPECT A FAVORABLE RESPONSE THAT THE FBI WILL TEST THIS FOR US THIS WEEK. AND IF NECESSARY, I'LL CALL ATTORNEY GENERAL RENO IF NECESSARY, NOT THAT IT WOULD HAVE ANY EFFECT. BUT --
IT MIGHT. AND I DON'T SAY THAT FACETIOUSLY, BUT I MEAN, KNOWING THE PICKLE THAT WE'RE IN TIME WISE. AND THIS CASE IS MOVING MUCH FASTER THAN I THOUGHT IT WOULD AS FAR AS THE PRESENTATION OF THE EVIDENCE IS CONCERNED. SO WE ARE GOING TO BE IN THE PHYSICAL EVIDENCE IN A WEEK TO 10 DAYS.
YOUR HONOR, THAT'S FINE. I HAVE CONCERN ABOUT A NUMBER OF OTHER ITEMS. SINCE MR. HARMON -- AS I RECALL, JUST TO GET BACK -- AT THE TIME THAT WE FIRST BEGAN NEGOTIATING THIS EFFORT TO EXAMINE THE EVIDENCE, THE DAY THAT HE ANNOUNCED THAT THEY HAD FINISHED TESTING VARIOUS ITEMS, WE THOUGHT THAT WAS OUR TIME AND WE BEGAN NEGOTIATING AT THAT POINT SHIPPING THE EVIDENCE TO ALBANY. ALSO, WE HAD THE MATTER OF GETTING INFORMATION FOR -- ABOUT UNDERLYING DATA FROM ARTICLES FROM THE FBI AND THE WHOLE MATTER OF THE ROCHE DATABASE, AT WHICH POINT I RECALL THE COURT DIRECTED MR. HARMON TO USE HIS BEST EFFORTS TO CONTINUE TO HAVE CONTINUED COOPERATION WITH ROCHE AND THE FBI WITH US, THEN ASKED US TO BE AS SPECIFIC AS WE COULD. WE TOOK SOME TIME. WE WROTE TWO EXTRAORDINARILY SPECIFIC LETTERS TO BOTH ENTITIES OVER TWO WEEKS AGO AND WE HAVEN'T HEARD ANYTHING. AND MY CONCERN HERE IS THAT WHAT'S HAPPENED NOW, SINCE THEY ANNOUNCED THAT THEY WEREN'T GOING TO TEST ANYTHING ELSE AND WE INDICATED OUR DESIRE TO TEST AND WE WANTED TO GET THINGS FROM THE FBI AND ROCHE IN AN EXPEDITIOUS MANNER, IS THAT EVERYTHING IS GOING VERY, VERY SLOWLY. AND AS THE COURT KNOWS, WE DO HAVE AN OUTSTANDING OBJECTION HERE FROM THE VERY BEGINNING THAT THIS WHOLE PROCEDURE WHEREBY THE PROSECUTION IS PERMITTED TO TEST WHENEVER IT WANTS TO WITHOUT ANY DUE DILIGENCE OBLIGATION OR ANY TIME --
I UNDERSTAND. I'M ONLY POINTING OUT THAT THE PREJUDICE CONTINUES AND I ASK THE COURT SINCE THE COURT'S INTERPRETATION WAS, THERE IS NO DUE DILIGENCE OBLIGATION BUT THERE'S GOOD FAITH -- IF I INTERPRET THE COURT'S RULING HERE, WAS THE WAY YOU LOOKED AT THE QUESTION. WE HAVE REAL CONCERNS THAT WE ARE BEING BLOCKED ACCESS TO THE EVIDENCE. THAT'S WHY I'M SO DISTURBED THAT A COMPROMISE COULD BE REJECTED.
WELL, MR. SCHECK, LET ME HELP YOU OUT HERE. THEY GET TO DO EDTA TESTING, BUT THEY HAVE TO DO IT AS SOON AS POSSIBLE. THE FACT THAT EVERYBODY IS OFF AT A CONVENTION ISN'T GOOD CAUSE. SOMEBODY IS GOING TO HAVE TO CUT THEIR CONVENTION SHORT AND GO HOME AND TEST THIS STUFF IS WHAT'S GOING TO HAPPEN BOTTOM LINE AND THEY'RE GOING TO GET IT DONE BY THE END OF THIS WEEK, AFTER WHICH YOU GET TO HAVE IT.
WELL, YOUR HONOR, THE REASON THAT I HAVE SOME PROBLEMS WITH THAT IS THAT MR. HARMON IS SAYING, WELL, YOU KNOW, THESE EDTA TESTS, WE DON'T KNOW MUCH ABOUT IT, BUT IT MAY MEAN TAKING A VERY -- VERY LARGE PARTS OF THE SAMPLE THAT'S REMAINING SO THAT THERE'S -- WE HAVE MAXIMIZED OUR CHANCES IN TERMS OF SENSITIVITY. NOW, IT DOESN'T SEEM TO ME THAT THERE CAN BE ANY SHOWING OF NECESSITY AT THIS POINT IN TIME TO DO THAT. AND THE PROBLEM I SEE IS THAT THEN WE'RE CONFRONTING THE ISSUE ABOUT WHAT THE NATURE OF THIS TEST IS AND WHAT THE POSSIBLE FRAUD CHALLENGES COULD BE TO THAT TEST AND DO THEY REALLY NEED TO TAKE SO MUCH OF THE SAMPLE THAT COULD PREVENT OTHER KINDS OF TESTS. AND I SAY THAT WE DON'T KNOW ENOUGH NOW AT THIS POINT.
MY SUGGESTION IN TERMS OF US BEING ABLE TO LOOK AT THE EVIDENCE IS NOT CUT AWAY ANYTHING, NOT DO ANY DESTRUCTIVE TESTING, JUST TO LOOK AT THAT BIOLOGICAL EVIDENCE SO WE CAN HAVE AN IDEA --
MR. HARMON -- I MAY BUY YOUR ARGUMENT IF THEY COME BACK AND TELL ME THEY CAN'T DO ANY TESTING FOR TWO WEEKS. BUT I WANT A DEFINITIVE ANSWER AS TO WHY THEY CAN'T DO IT THIS WEEK. I MIGHT BUY YOUR ARGUMENT TOMORROW MORNING.
YOUR HONOR, THEY CAN COME LOOK AT IT IN LOS ANGELES IF THEY REALLY JUST WANT TO LOOK AT IT BEFORE WE SEND IT OFF.
ON FEBRUARY 3RD, MR. HARMON IN HIS LETTER IN ESSENCE IS TRYING TO BLACKMAIL US BY SAYING WE ARE NOT GOING TO GIVE YOU ANY MORE DISCOVERY UNTIL YOU TELL US WHAT YOU DID WITH THESE ITEMS.
THAT EVIDENCE DOESN'T DISAPPEAR INTO A DARK HOLE. I REALIZE SOME OF IT IS GOING TO BE CONSUMED OR DESTROYED IN SOME WAY THROUGH THE TESTING PROCESS. BUT IF IT STILL EXISTS, THEN IT OUGHT TO BE PUT BACK OR AT LEAST SHOWN TO THE JURY WHAT'S THERE.
SOMEBODY'S GOT TO COMPROMISE HERE. AND MY SUGGESTION IS THAT WE GET THE FBI TO DO THIS STUFF NEXT WEEK RATHER THAN THE 27TH.
YOU KNOW, WE ARE ESSENTIALLY TRYING TO PROVE A NEGATIVE MEANS SOMETHING, THAT THE ABSENCE OF EDTA MEANS IT'S NOT THERE. SO THE LARGER AMOUNT OF SAMPLE YOU HAVE FROM WHICH YOU DERIVE YOUR SENSITIVITY LEVEL IS CRITICAL.
CALL THEM BETWEEN NOW AND HAPPY HOUR IF YOU CAN. SERIOUSLY, I MEAN --