Good morning, your Honor. We next have the matters relating to Michelle Kestler's testimony and also the news leak. I don't know whether the Court wants to handle those as two separate distinct issues. They do relate in a way.

I see one precedes the other. I think what we determine from the news leak issue then determines the broadness of the inquiry of Michelle Kestler. In our informal discussions yesterday at side bar at the conclusion of the day and in discussing the matter with counsel, Michelle Kestler, as the then acting head of the laboratory, now the head of the laboratory can testify to several things that are relevant to this case: The procedures in the lab, who is responsible for what, how their documents are kept. She also conducted the inventory of the evidence that was conducted during the preliminary hearing and she did in fact examine the socks during that inventory, and I think the Defense wants to point out that she saw no readily apparent blood on the socks, so I mean I can see that there are normal reasons why her testimony would be relevant in this case. The other issue, though, the information about news leaks, broadens that inquiry significantly, so I think we need to explore that avenue first. And Mr. Goldberg, do you concede that she is subject to calling--being called as a witness as to the standard issues?

Well, the phrase "Standard issues" is fairly all encompassing, and I believe that what the Defense really wants to do or might want to do as a fall back position is call it for the standard issues and then impeach her, and I don't think that is proper and I would like to address that at some more length when we actually get to the question of Michelle Kestler's testimony, but perhaps as the Court is suggesting, we could address the issue of the news leaks first.

I think the news leaks is really what determines the scope of what we are going to do.

Thank you. I would like to start then, your Honor, by discussing the lack of relevancy of the news leak issue. We did file a supplemental points and authorities on this. I don't know whether the Court had an opportunity to read that. That was filed at 4:30.

Yes, I have got it.

And after talking about the issue of relevancy, which seems like it is a threshold issue obviously, if the Court were to get past that, and we are not suggesting the Court ever will, then there is an issue as to the mechanics of how you would go about proving this through admissible evidence. And we have suggested in our points and authorities that that can't be done because there is no legally admissible evidence to prove what it is that the Defense seeks to prove here. So starting out with the issue of relevancy, we first point out, as we did in our points and authorities, that "Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact," and that was a quote that came from the Court of People versus Babbit. We suggest that this is a classic case that what it is that the Defense is offering is not evidence but merely a speculative inference that they will be asking the jury to draw from the question of the news leak. Now, in order to get to this speculative inference, that is, that the socks--the evidence on the socks were planted, from the news leak, there is a chain of illogic that the Defense must go through, and I try to break it down into three components that would logically be involved in that chain. The first chain is that the Defense would logically have to show or prove, either directly or circumstantially, that there was in fact a news leak stating DNA results, and the reason why we say this first part of the chain of logic has not been established or cannot be established is that what we have is a situation where on September the 18th, as the Court will recall, Gregory Matheson did a PGM subtype test on the socks and found that the PGM subtype was consistent with the victim, Nicole Brown. As the Court also knows, very often the serologists refer to these tests involving blood proteins as genetic markers. So we have a situation where there was a test that was being done for genetic markers that found blood that was consistent with the victim's on the 18th. The so-called leak was on the 21st. So we don't know, for example, your Honor, whether what we have is a situation where the news media received information and misinterpreted that information and reported this genetic marker test as being a DNA type test. We don't know specifically what, if anything, was said.

And just to give a little bit of an illustration on that, your Honor, there was an incident quite recently, I don't know whether the Court is familiar with it, where some of the detectives in this case were talking and joking out on the courthouse steps with some of the T-shirt vendors, as they frequently do, and one of the newspaper reporters or television reporters, I won't name the agency, asked who these people were and what the detectives felt was an obviously joking manner, said that these were four surprise Prosecution witnesses that we were going to put on at the tail end of our case. The news reporter promptly scurried off and this was shortly thereafter reported in the media, that we had these four surprise witnesses, and reporters were scurrying all over the building trying to find out who they were. This was a situation where on its face anyone should have known that that is not a reasonable possibility that we have discovery laws, we have to disclose people. You don't suddenly just march four people into court and put on surprise witnesses. Clearly something that any reasonable person would have seen as being an offhanded comment, a joke.

We have seen instances like this, over and over and over again wherein the news media has completely mischaracterized or outright misstated what happened in Court or happened outside of Court, so I do not believe that there is any reason to conclude that they did not do so in this particular case. Also, as the Court ruled at the time that this came up back in September, and these were your Honor's words: "Let's not even dignify it as a news leak. It is a fabrication," your Honor also found the conduct of the news media outrageous and irresponsible. So how are we supposed to infer, based upon the rulings that the Court has already made--

That comment was made in the context of pre-jury selection and at a time where obviously the Court has to be concerned with the Defendant's right to select a jury and have a fair trial.

And your Honor I think also commented at that same exact time that this also might prejudice the People's each right to a fair trial to the extent that it was releasing information that might not necessarily prove to be correct. But the point is, your Honor, how are we supposed to conclude, in an environment where all of us agree, the Court, the Prosecution, the Defense, that stories have been repeatedly put out over the airwaves and in the print media that are incorrect and even irresponsible at times, how are we supposed to trust at face value this story as having accurately stated what was supposedly heard from this source, if indeed there was a source? And this is particularly a problem where we won't be able to cross-examine the person from the news media as to who the source was, what specifically they said, because there is a privilege that attaches, and we can't possibly therefore ever explore or undermine this kind of testimony. I don't even know how it would be presented, in light of that privilege. The next speculative inference in this chain of illogic, your Honor--

All right. Well, let me ask you this, though: Don't we have to then first determine, by summoning in the person who originated this report in the commercial news media and demand from that person production of the source of that information? Don't we have to do that first? And perhaps in this situation that person will agree to divulge the source, and if not, we will have to conduct a contempt hearing?

Well, there is also a privilege, as the Court is aware, that applies to protect unpublished information as well as sources, and we've already been told, I believe, it has already been represented to this Court, that that privilege would be invoked here, which is another issue that we also addressed in the brief, your Honor, but I do agree with the underlying premise of the Court's question, which is that before this information could be put before the jury we would have to have some evidence in an admissible form that the proponent of the evidence, the Defense, could put forward to indicate that there was a source for this information and specifically what the source said. But I go even one step further than the Court has just suggested, and that is that in addition to that, they would also have to indicate that that source was an individual from SID, in order to make the evidence probative on the issue of evidence planting. And if all they are going to say is that we have a source that part of the relevancy inquiry is not addressed, because the source could have been, if we are looking at all of the potential candidates for suspicion, SID, it also could have been the police, it also conceivably could have been the Department of Justice, it could have been the D.A.'s office or it could have been the Defense. All of those are possibilities and there really isn't any evidence that points to any one of those five candidates more than the other, if all we have is information that there was a source. The Defense said in their moving papers, well, the source said or the news media said this was a source that was familiar with the investigation, but that does not exclude any one of those five candidates that I just mentioned. All of those five candidates would fall within the rubric of people who are familiar with the investigation, or to add a sixth candidate on, your Honor, it could be an eavesdrop person or interloper who intercepted information from any one of those five sources, so it also could have been an unintentional disclosure. The third problem in this chain of logic that I have been addressing, your Honor, on the issue of relevancy, is that even if we could assume that there was a leak, and even if we could, in addition to that, assume that the leak came from SID, is that leak, that assumed leak, probative on the issue of evidence planting, the issue that it is being offered to prove? And I suggest that it is not very clearly. I would point out, your Honor, that if we knew that there was evidence on the socks, which we did on August the 4th, significantly before Greg Matheson's PGM subtype and before the news leak, we knew that through the presumptive testing that was performed on that date, there are seven permutations of whose blood could be on the sock. It could be the blood of Nicole Brown, Nicole Brown and the Defendant, Nicole Brown and Ronald Goldman, Nicole Brown, Ronald Goldman and the Defendant, the Defendant, Ronald Goldman or the Defendant and Ronald Goldman. Those are the only seven possibilities. So simply by guessing, once we know that there is blood on the socks, if we simply guess it is Nicole Brown Simpson's blood, we have four permutations that include that as one of the possibility or a 57 percent chance of being right.

Refresh my recollection as to what the news report said back in September.

The news report said that blood was found on the sock and that it was reported to be that of Nicole Brown.

By DNA type?

That is not true.

By DNA testing. Well, I think one report was that it was the victim's and I believe there was a subsequent report saying it was Nicole Brown, as I recall. I just listened to it the other night.

There were two reports.

There were two reports, one on the 21st and one on the 22nd.

One on the 21st when the claim was made and one on the 22nd when it was reaffirmed.

That's right.

Well, they also said that--I will get to that. They said that it was PGM--excuse me. They said that it was RFLP and PCR testing, but the point is, your Honor, is that just by guesswork, if the source said it is Nicole Brown's blood, they have a 57 percent chance of being correct.

I don't recollect--I don't recollect that the 21st or the 22nd that Nicole Brown Simpson's name came up specifically.

I thought they had said that, but if they didn't say it and they said that it was the victim's blood just generically, then there are six out of seven possible--then they have a six out of seven chance of being right.

Do we have that videotape available?

Yes, I have it upstairs.

We have it here.

We have it here.

But the point is, your Honor, is if they simply said the victim's blood, which is--I think is what they said on the 21st, then I think there is a six out of seven chance of being right and probably greater because it would be a reasonable inference that because there was a lot of victim's--

Let me look at it again, because whether they have specifics as to whose blood is there, that is an important issue.

Yeah, but I would submit, your Honor, that if they had said it is Nicole--

I understand the permutations. I understand what the possibilities are.

Okay. But if they said it is Nicole Brown Simpson's blood and the Defendant's blood, then at least the argument that this was someone with inside information would be slightly stronger--

Uh-huh.

--than if they simply said it was the victim's blood.

Before we get too far away from this point, Mr. Douglas, do you have that available?

I do, your Honor.

While we are waiting, does the Court want me to continue or does the Court want me to--

Let me just satisfy my curiosity and refresh my recollection as to what this said, because I think that has--the specifics of what is said is important for the rest of the inquiry, I think.

Thank you.

Thank you for rerunning that tape. I also see on the tape, though, and I should have picked up on this earlier, that they said that the socks were sent to cellmark and in fact they were sent to the Department of Justice, so that is another inaccuracy in the news report, which again leads us away from the conclusion that the person had inside information. Obviously they said that it had already been sent for DNA testing, and that wasn't true, because it wasn't sent out until the 26th of September, which was a number of days after the leak, so that is another misstatement. And then in the retraction story, this was after Miss Clark was in court and said to the Court, no, the items have--excuse me. She said, no, the socks have not yet been sent out for DNA testing. Following that statement in court the news media reported, well, that is true, the socks haven't been sent out; however, a cutting from a sock was sent out, and that is also incorrect because we had neither sent out cuttings from the sock nor had we sent out the sock itself as of that date, so all around the report that was issued by the news media is incorrect. The only thing that they state that can be characterized as being correct is that Nicole Brown's blood was on the sock; however, that is only a partial, partially correct statement, because the Defendant's blood was on the socks as well. So there is nothing about the report itself which leads us to the conclusion that it came from someone with inside knowledge or someone other than a crackpot and there is every indication in the report itself that it did not because of the number of obvious inaccuracies of the report. Now, getting to this third relevancy issue, and that is I think probably the key one here, is even if we could get over the other two relevancy hurdles, why would a leak be relevant on the issue of evidence planting? The Defense has simply assumed that it would be relevant without articulating why it would be, and in trying to articulate that a little bit, I would like the Court to envision two scenarios:

Under scenario no. 1, we'll call this evidence planting scenario no. 1, what happens is the socks are--the socks themselves are planted at the Defendant's home, but apparently, according to this scenario, when the socks were seen on the 24th of June and the 29th of June, there is no blood on them. This is the inference that they want the jury to believe; therefore, someone planted blank socks, so under this evidence planting scenario maybe what happened was the person that planted the blank sock was listening to the news media and heard this story about DNA testing and thought to themselves, oh, my heavens, we planted the socks, but we forgot to plant blood on them, and then as a result of having been reminded by the news story that they had forgotten to plant blood on the socks, got dressed up in their Ninja style evidence planting outfits and then put the blood on those socks.

All right. Well, let's--if you argue that the Defense argument is speculative, let's get back onto terra firma.

It is not just speculative, your Honor, but I don't think that the Defense can logically assert that theory.

Let's agree nobody likes that theory.

Okay. So let's try theory no. 2 then, evidence planting theory no. 2, and that is that--and it seems to be inconsistent, by the way, with evidence theory no. 1, which I think the Defense in part has pursued, because they have suggested that blank socks were in effect planted. But let's take evidence theory no. 2 and let's suggest that what happened was the evidence was planted prior to the time that the news story came out, then what happened under Defense theory no. 2 is that the person that planted the evidence on the socks for some reason then immediately called the news media and said, guess what, I just planted some evidence on the socks, or guess what, there is evidence on the socks and it is going to be Nicole Brown's blood. And this seems to be particularly unreasonable to conclude that the very individual that participated in planting the evidence then called the news media to tell them about that, so under either scenario that the Defense wants to pursue, whether the evidence was planted after the leak or before the leak, the leak the does not logically help to establish that evidence was in fact planted, because the person that was responsible under theory no. 2 for planting the evidence would be the least likely individual to want to do anything to make that fact known and perhaps be caught in the process. So I have suggested that--that none of these prerequisites can be established. You can't show that it was a leak of DNA test results that in fact occurred. You can't show that the person came from SID, and even if you could show all those things, you still can't logically connect up this so-called leak to the question of evidence planting under any scenario that I can see the Defense arguing before this jury. I would like to get to the other more technical issues but that would assume that we got over the threshold issue of relevance. I don't know whether the Court perhaps would like to divide this up into pieces and decide the issue of relevance first because then we have some issues involving privilege, hearsay, conclusions and opinion evidence, a variety of technical legal issues that would go to how the Defense would try to present this evidence if the Court ruled that it was relevant, but I don't know whether the Court would choose to in effect break up the arguments and decide the issue of relevancy first.

Well, let's look at the spectrum of the evidence that we have here before us. We have--with regard to the sock we have the testimony of--or I recollect it was Detective Luper--that the socks were recovered at his direction because, quote, "They were out of place." That is an explanation I have never heard of before. We have the offer regarding Mr. MacDonell's testimony that blood in the interior of the sock a is blood that was not powdery, but in a form such that it had to have been--it was not transferred into that fiber by powder means, it was a liquid when it got there. We then have the testimony of Dr. Rieders that in his opinion the testing done by Roger Martz with regards to the sock is in, his opinion, indicative of the presence of EDTA. Putting those three factors together with the premature claim that RFLP testing shows that Nicole Brown Simpson's blood is on the sock, I mean, that is a pretty plausible offer of proof as far as going further, wouldn't you say?

No.

You don't think so?

Well, as to the issue of Detective Luper, your Honor, Detective Luper's--testimony as to him directing people to collect the socks, the Court never heard before, of course. It was never relevant before. Of course your Honor knows that the Prosecution on each one of the factors that the Court has raised has counter argument.

I understand that.

And that is not directly relevant to the Court's question. What is relevant is the issue of is the Defense allowed to prove, if they can, that the socks are planted. Certainly--

All right. Here is the thing, though. The scenario that I just posed, the chain of facts or proffered evidence that I have discussed, the next link in this is that there is somebody in the police department who knew about this and told somebody in the news media.

Who knew about what?

About the fact that there is blood on the socks in a premature fashion.

That is scenario no. 2, what I have talked about as scenario no. 2.

All right.

That a person either planted the evidence him or herself or had direct knowledge of this and participated in it.

Uh-huh.

And then decided to disclose it to the news media.

But don't we from this point then have to make an inquiry of the news source first as to who the source was before we determine how much further down this line we go?

Well, I would agree, your Honor, that if the news people said I received information from Mrs. Smith who works for SID, that this evidence was on the socks, a couple of the relevancy hurdles that I articulated would be overcome because they we do have in fact evidence of a leak rather than just speculation and conjecture and so on that we have to infer what was said. We do have--

Mr. Goldberg, in making your argument you should understand that we are not about to conduct this trial by TV news reports.

I would hope so.

But we do have to make inquiry, based upon what we have seen here so far, of the news media for what their source was.

That is a different--a different issue, your Honor, and as I was about to say--

Then depending on that, all of this scenario discussion is really premature before we find out what we get from that other source, what if anything.

I believe that it has been represented, though, to the Court and to both sides--I think we got a letter, I don't know whether it was served on the Court--

Yes, it was.

--from the news organization saying that they would--that they obviously didn't want the witness to testify even to authenticate the tape and declaring that they would invoke their privilege.

But you are familiar with several cases throughout the country where reporters, despite having identical reporter shield laws, have been forced to divulge sources or face the contempt power of the Court, and since it appears this Court--this trial may be going on for several months, that could be a significant sanction.

Well, your Honor, I am not addressing the issue and was not arguing the issue of whether or not the Court wants to hold such a hearing and then attempt to get this reporter to divulge their source. That is a separate issue. And obviously if the answer--

Well, the point I'm making is that before we get to the cross-examination of Michelle Kestler as to news reports, there has to be a little bit more there than what we have now is the point I'm making.

I would degree and I think that the burden is on the proponent of the evidence to get that little bit more in here, however they want to do it.

All right. Then procedurally my understanding is that the news reporter in question has been subpoenaed?

Yes, your Honor. I believe she has. I just asked Mr. Douglas to step out. Miss Anne Egerton said they would accept service and I assume that was yesterday and in a moment I will know for sure. I will ask for them to call.

All right. Then I would say further discussions about scenarios at this point is really premature before we get that other piece of information.

Okay.

Mr. Uelmen. Let me cut to the chase. Do you agree procedurally at this point we perhaps should have a 402 here calling the reporter and asking them if they are going to divulge their source, and if not, proceed accordingly.

Your Honor, I think we can make a sufficient showing that the course of this news leak was the SID laboratory, without the divulgence of the source by the news reporter.

Okay. How do we do that?

We do it simply by asking Miss Savage to come in and authenticate the report that was given and to confirm the information which has already been disclosed to this court in the form of a letter addressed to your Honor from Carol Black, the president and general manager of KNBC TV at that time Miss Black represented to this court that the news story was based upon, and i am quoting: "Individuals knowledgeable about the investigation had told KNBC news personnel that socks with blood on them had been part of the material seized by authorities in Mr. Simpson's house, that DNA testing had been requested to determine whether the blood on the socks matched the blood of one of the victims, and that communications from the testing laboratory had reported a positive correlation." Now, that is their representation of the sources.

But is the source knowledgeable?

Yes.

As Mr. Goldberg points out, that could include Mrs. Robertson.

Well, I will get to that in a moment.

But she is not a credible source, but I mean, there is a whole panoply of people who claim to be knowledgeable.

Well, there is another element to this because they go on to indicate that this same source had previously provided reliable information. They come back and they reconfirm and they say: "Our sources reconfirmed to KNBC news their original statements that the tests had occurred and that the communications had been received, thus KNBC's news reports were based on the statements of multiple sources with different avenues of information who KNBC knew had knowledge of the investigation and who had on previous occasions provided accurate information to KNBC." Now, I assume that Tracie Savage would also testify that KNBC does not base news reports simply upon lucky guesses or upon crackpots, so we are limiting at least somewhat the available pool of sources from whom this information might have emanated. Now, through the testimony of Michelle Kestler we believe we can establish a chronology that points a very, very reasonable inference of a finger of more than suspicion at the SID laboratory itself, because you have to put this in the context of a chain of events, and that chain of events starts much earlier than September 21st. It starts on September 12th when Michelle Kestler, as director of the SID laboratory, receives a fax from cellmark giving DNA results. That faxed report is not even transmitted to the Prosecutor, Marcia Clark, until four days later on September 16th, but on September 12th, on the same day that the fax is received by Michelle Kestler, there are news reports, including I believe a KNBC news report, reporting the results of those DNA tests. All right. Then we are told, on September 18th, a PGM subtype of the sock is done and it turns up results consistent with Nicole Brown Simpson. Now, the question is who knew of those results? That test was done by Greg Matheson within the SID laboratory. We would like to ask Michelle Kestler, well, who fund out about those PGM results? To whom were those results disseminated? Apparently the decision was made on September 21st to send the socks out for DNA testing. We would like to know who made that decision and to whom that decision was communicated, because on September 21st, coincidentally, that is the date that the news leak announces DNA results on the sock.

All right. Do we have a copy of the fax of September the 12th?

Yes, we do. I believe that was appended to an earlier motion that we filed with the Court.

I didn't see it in this round of motions.

I am sure we can lay our hands on another copy and make a copy of that. We believe that Miss Kestler would also testify as to the method by which evidence and information of this--of this nature was handled within the SID laboratory, that she would testify that this was a sensitive investigation and that steps were taken so that only those who had a need to know would be informed of information of this nature, and we would like to ascertain just who had a need to know under these circumstances. I believe we can limit the pool of available sources to a very small group of people from whom this information could possibly have emanated, who would have known--

The problem you have, though, is that this information was just flat out wrong.

Well, the information was wrong only in a couple of minor details, including the detail that the tests had already been done and that the socks had been sent to a particular laboratory, but the--

But in all other respects it was correct?

Well, it was correct in terms of the discovery, alleged discovery of blood on the socks. It was correct in the--

But that was known in August.

Well, it was correct in the attempt to link that blood to Nicole Brown which would have been only known to those who had access to the PGM subtype results that were achieved on September 18th.

Well, let me ask you this: Do you want to pursue dragging Tracie Savage in here and asking her to divulge or not? Do you want to pursue this other indirect line?

Yes, we do want to pursue bringing Tracie Savage in, but we believe it is not even going to be necessary to require her to divulge the identity of the source. All she has to do is confirm the information that has already been disclosed.

Do you think I'm going to allow playing that news broadcast to the jury as evidence in this case?

Yes, I think you are and you should.

Under what plausible grounds could I do that?

Well, it is not being offered certainly for the truth of what is asserted in that news broadcast, so it is not hearsay. It is being offered to show the--the link in the chain with respect to the planting of evidence in this case, your Honor. We have to put this in the context, as your Honor has already noted, of other evidence. When I was a Prosecutor I used to love the metaphor of a brick in the wall and you can't keep out evidence because it is only a brick and it is not a wall, that all of the inferences and circumstances go together in a circumstantial case to build a wall. We are now engaged, your Honor, in removing bricks from the wall. We are engaged in the process of creating a reasonable doubt and that is--

Nice analogy. Tell me what your legal basis is for me allowing news broadcasts that are fabrications as evidence.

Because those fabrications emanated from someone in the SID laboratory which is where we would contend evidence fabrication took place. We have--

Do you think there are a lot of people who have an interest in this case who have a personal interest in seeming knowledgeable and cultivating media who go out and lie to the news media about the case? Do you think that is a phenomena that might have occurred?

Well, Mr. Goldberg suggests that perhaps there are eavesdroppers and interlopers. Now, if eavesdroppers and interlopers had access to the evidence in this case, that is something we would like to know about, because the existence of possible eavesdroppers or interlopers may itself create some doubts about the integrity of the evidence and the question of whether--whether evidence was planted. But the fact remains, your Honor, that we believe we can establish, within the SID laboratory, within the very small pool of people who had access to this information, who could reasonably have been the source of this leak, that the leak itself creates an inference that evidence was being fabricated, that somebody would have enough confidence to tell the news that there will be positive DNA results on a sock indicates a high degree of confidence that that is what the results will show. And that confidence could have come from involvement in actually putting that evidence there and knowing in advance that that is precisely the result they are going to get, because they even assured in advance that that would be the result, and we believe that is not a speculative or unreasonable inference in light of all of the other inferences that we have with respect to the sock. We have the discrepancy in when and where the sock was found, and that evidence isn't relevant, just to create some scenario as Mr. Goldberg suggested that somebody planted a blank sock.

No, I dismissed that as completely--

What that evidence does is suggest to the jury that this sock, as well as other evidence, was not particularly handled with great care, that we cannot trust the evidence and the records of the criminalists who say they collected that sock when we have proven that those records are wrong, that they have the wrong time with respect to when those socks were collected. Then we have discrepancies in terms of when blood was discovered on the socks.

Well, counsel, let's get back to my question. What legal statutory case law, other examples that any court anywhere in this country has ever allowed a fabricated news report as evidence in a case of?

I'm sure we can come up with cases where news reports have been admitted for a non-hearsay purpose and that is--

Give me one.

I will get right to work on that, your Honor. What we are offering this news report to establish is that the SID laboratory was the only logical source of that information, that the pool of individuals within that laboratory--

I understand the argument--

--were persons who had access to the evidence and could have participated in the planting of evidence, so we are simply adding or subtracting another brick from the wall that creates that hole of reasonable doubt, that gives this jury a reasonable doubt as to the integrity of the evidence that is being presented in this case. And the news leak is--is crucial to establishing that additional inference. I mean, you can't, in terms of our obligation of creating reasonable doubt, draw circles around what--what bricks we can displace from the wall that the Prosecution is attempting to build, and this is a very important brick, the brick that suggests that the SID laboratory maintained tight security over the evidence, that the evidence was not available to others, that information about the case was--was tightly controlled. And here we are rebutting that inference, I think with very persuasive evidence, that there were leaks from that laboratory and those leaks create doubts about the integrity of this evidence.

All right. So how do you want to proceed at this point?

We would like to proceed by calling Tracy Savage, by asking her to authenticate the news tape, by asking her whether KNBC bases news reports of this nature on lucky guesses or crackpots and to confirm the information that was disclosed to this court in the letter of Carol Black, that this information came from a knowledgeable source about the investigation, and that that source had given prior information to KNBC which turned out to be reliable. We would then proceed to call Michelle Kestler to inquire as to who were the persons within the laboratory who had any information about DNA results, who had access to the faxed DNA results on September 12th, who had access to the PGM subtype test done on September 18th, who had knowledge of the decision to send the sock out for DNA testing on September 21st. We believe that will be a very limited pool of possible sources, and that is all we need.

Mr. Cochran, what is the status of your subpoena for Miss Savage?

Mr. Douglas advises me that she was served I believe Tuesday of this week, Tuesday of this week, through counsel for NBC, and if the Court would like, I can make some phone calls, if you will give us a schedule. They have indicated she is usually in and around this building, but apparently she is now under subpoena.

All right. When do you want to proceed? I think there is a very necessary step that is missing here.

You've heard Mr. Uelmen's arguments. You are the Judge. We will--we would like to proceed as soon as possible obviously on this your Honor, given the schedule. We have Professor MacDonell, but we will work around this, and we have a short day tomorrow, so you let us know what is appropriate and we will work around it.

My recollection is we have to conclude Dr. Rieders tomorrow morning.

We do.

You do want to present Mr. MacDonell, correct?

That's correct.

And my recollection is he is from out of town as well, correct?

Yes, they are both from out of town.

All right. Let's go with MacDonell. We will take our recess, we will come back at 10:30, we will start with Mr. MacDonell. Counsel, why don't you make arrangements, I take it--is Kestler your next witness after MacDonell and Rieders?

I would think so; Savage, Kestler, yes, your Honor.

All right. Then let's go Monday with this.

Monday morning at nine o'clock?

Monday morning at nine o'clock. That will be for the 402 hearing regarding what comes out of Savage.

That will be fine.