YOUR HONOR, JUST TO -- THERE WERE A NUMBER OF DEVELOPMENTS IN TERMS OF YOUR SCHEDULING. I WANT TO PUT THEM IN ORDER FOR YOU. OBVIOUSLY WE HAVE THE DEFENDANT'S PROPOSED SET OF ACTIONS IN THE DNA ISSUES; HOWEVER, A MATTER OF SOME IMPORTANCE BEFORE COLLECTION WITNESSES TESTIFY IS THE LETTER THAT WE SENT THIS MORNING CONCERNING WHAT WE BELIEVE ARE DISCOVERY ABUSES AND RECENT MATTERS THAT WERE TURNED OVER TO THE DEFENSE BY THE PROSECUTION THAT WE THINK IS A CLEAR DISCOVERY ABUSE AND FOR WHICH THERE ARE TO BE SANCTIONS AND REMEDIES. SO THE ISSUE IS WE THINK THAT IS A SERIOUS MATTER THAT HAS TO BE RESOLVED BEFORE THE WITNESSES TESTIFY. THEN THERE IS THE STIPULATION -- PROPOSED STIPULATION BY THE PROSECUTION AND THEN THERE ARE THE BOARDS, SO THOSE ARE ALL THE MATTERS THAT I THINK WE HAVE TO COVER. AND I KNOW YOU HAVE LIMITED TIME, SO TELL US WHAT YOU WANT.
ALL RIGHT. WELL, LET'S DO THE MOTION THAT -- LET'S START ON THE MOTION THAT WAS SCHEDULED FOR THIS AFTERNOON, THE NOTICE OF OBJECTIONS TO TESTIMONY CONCERNING DNA EVIDENCE.
MAYBE I OUGHT TO MAKE ONE POINT ABOUT THE DISCOVERY SANCTION. WE SENT A NUMBER OF MATTERS TO THE COURT IN TERMS OF THE MATERIALS, BUT ONE THAT I THINK THE COURT REALLY HAS TO LOOK AT IS THAT WE WERE PROVIDED WITH A VIDEOTAPE THAT WE HAD BEEN ASKING FOR FOR A LONG TIME THAT WAS TAKEN ON JUNE THE 13TH AT ROCKINGHAM. THE WAY WE KNEW ABOUT THIS A LONG TIME IS THAT ON THAT VIDEOTAPE THAT I THINK THE COURT HAS OF ALL THE DIFFERENT CLIPS WE HAVE SEEN FROM THE SERVICES, THERE WAS A GENTLEMAN FROM THE DISTRICT ATTORNEY'S OFFICE OR WE THOUGHT OR POLICE DEPARTMENT, WE DIDN'T KNOW WHERE, TAKING A VIDEOTAPE. WE JUST RECEIVED A VIDEOTAPE FROM THE PROSECUTION OF -- PANNING THE GROUND AND THEN AN INTERIOR SEARCH.
OR WALK-THROUGH OF MR. SIMPSON'S RESIDENCE AT ROCKINGHAM. IT IS HIGHLY MATERIAL AND SOMETHING THAT SHOULD HAVE BEEN TURNED OVER AT THE SUPPRESSION HEARINGS, BECAUSE IT IS RELEVANT TO THOSE ISSUES, WOULD HAVE BEEN DEVELOPED THERE IN TERMS OF SEARCH WITNESSES, IN TERMS OF THEIR TESTIMONY. AND THERE ARE A NUMBER OF THINGS THAT ARE PERFECTLY APPARENT ABOUT IT. NO. 1, THERE ARE THINGS OUT ALL OVER IN VERY IMPORTANT PLACES. MATTERS --
OH, I UNDERSTAND. ALL THAT I'M SAYING IS BEFORE THE PROSECUTION'S NEXT WITNESSES, THE COLLECTION WITNESSES, MAZZOLLA AND FUNG, TESTIFY AND PEOPLE TESTIFY AS TO THE COLLECTION OF EVIDENCE AT ROCKINGHAM --
THAT MENTIONS SOMETHING ABOUT DISCOVERY SANCTIONS, BUT IN CASE YOU HAVEN'T NOTICED, I HAVE BEEN IN SESSION ALL DAY.
I UNDERSTAND THAT. THAT IS WHY I'M BRINGING THIS ONE TO YOUR ATTENTION BECAUSE I KNOW I WANT TO HEAR ABOUT IT.
OKAY. BOTTOM LINE IS WE THINK IT REQUIRES A HEARING BEFORE THESE -- OUTSIDE THE PRESENCE OF THE JURY BEFORE THE WITNESSES TESTIFY.
MY PLEASURE, YOUR HONOR. WHAT I WOULD LIKE TO DO FIRST IS A GENERAL INTRODUCTION AND THEN EXPLAIN WHAT I WILL ADDRESS AND THEN DEFER TO OTHER COUNSEL ABOUT THE OTHER ISSUES. THE FIRST --
IF I UNDERSTAND THE PROSECUTION'S POSITION CORRECTLY, WHAT THEY ARE CLAIMING IS BY WITHDRAWING OUR INITIAL KELLY-FRYE MOTION WE WAIVE THE RIGHT TO CONTEST WHETHER OR NOT CORRECT SCIENTIFIC PROCEDURES WERE USED IN ANY OF THE DNA TESTS PERFORMED IN THE PAST OR PERFORMED SINCE THE TRIAL BEGAN AND TESTS THAT ARE STILL BEING PERFORMED AS WE SPEAK. WHETHER CORRECT SCIENTIFIC PROCEDURES WERE USED, WHETHER CONTROLS FAILED IN THE COURSE OF DOING THESE TESTS, WHICH ARE SO MATERIAL THAT THEY WOULD INVALIDATE THE SCIENTIFIC MERITS OF THE TESTS, WHETHER THESE TESTS WERE PERFORMED VERY, VERY BADLY, SUCH THAT THEY SHOULD NOT COME INTO EVIDENCE.
THEY SAY WE HAVE WAIVED OUR RIGHT TO CONTEST THAT UNDER THE THIRD PRONG OF KELLY-FRYE AS AN ISSUE UNDER 403 OF THE CALIFORNIA EVIDENCE CODE, OR 405. THEY ALSO CLAIM THAT BY WITHDRAWING OUR KELLY-FRYE MOTION WE HAVE WAIVED OUR RIGHT TO CHALLENGE UNDER 352 THE WAY DNA EVIDENCE IS PRESENTED TO THE JURY, PARTICULARLY WITH RESPECT TO WHETHER OR NOT THE STATISTICAL EVIDENCE IS PRESENTED IN A FASHION THAT IS MISLEADING, UNDULY PREJUDICIAL AND SHOULD NOT BE ADMITTED UNDER RELEVANT CASE LAW. THEY INDEED CONTINUE TO INSIST THAT BY WITHDRAWING OUR MOTION WE CANNOT MAKE OBJECTIONS UNDER CERTAIN CASE LAW, PEOPLE VERSUS CELLA, PEOPLE VERSUS COLLINS, THAT WE CITE IN OUR PAPERS. THEY CLAIM THAT BY WITHDRAWING OUR MOTION WE HAVE WAIVED OUR RIGHT TO CROSS-EXAMINE SCIENTIFIC WITNESSES FROM THE PROSECUTION ABOUT DISPUTES WITHIN THE SCIENTIFIC COMMUNITY CONCERNING THE RELIABILITY OF THE TESTS THAT THEY ARE GOING TO OFFER TO THIS JURY. THAT WE CANNOT TALK ABOUT OPINIONS OF OTHER LEADING SCIENTISTS THAT WOULD BE GENERALLY RELIED UPON BY EXPERTS IN THE FIELD WHO ARE PROMINENT SCIENTISTS THAT WERE PUBLISHED IN SCIENTIFIC JOURNALS. THAT WE COULDN'T RELY UPON, FOR EXAMPLE, DOCUMENTS LIKE THE NRC REPORT OR THE FACT THAT THERE IS AN NRC PANEL -- NRC PANEL FROM THE NATIONAL ACADEMY OF SCIENCES CONSIDER MANY OF THE CRITICISMS THAT WE HAVE RAISED HERE, THAT THEY CONVENE ANOTHER PANEL. THEY ARE SAYING THAT WE CAN'T GO INTO ANYTHING WITH RESPECT TO THOSE DISPUTES IN THE SCIENTIFIC COMMUNITY BECAUSE WE WITHDREW OUR MOTION. THEY SAY THAT WE CANNOT OFFER TESTIMONY WITH RESPECT TO TESTING PROCEDURES, SUCH AS MITOCHONDRIAL DNA, BECAUSE WE WITHDREW OUR MOTION WHEN IN FACT DURING OPENING STATEMENT MISS CLARK REFERRED TO PROCEDURES THAT ARE DONE TO IDENTIFY THE BODIES THAT WERE FOUND OVERSEAS OF SOLDIERS. AND IN FACT ONE OF THE TECHNIQUES THAT IS USED, IN FACT, THE PRIMARY TECHNIQUE IS, AS I UNDERSTAND IT, THAT IS USED, IS MITOCHONDRIAL DNA TESTING BY ONE OF THE PROPOSED PROSECUTION WITNESSES, MAJOR VICTOR WEEDN. THEY SAY BY WITHDRAWING OUR MOTION WE CAN'T OFFER TESTIMONY ON THAT. THEIR POSITION IS THAT IN OUR DIRECT CASE WE DO NOT HAVE THE RIGHT TO PRESENT EVIDENCE AGAIN THROUGH OUR WITNESSES UNDER APPROPRIATE SECTIONS OF THE CALIFORNIA EVIDENCE CODE, I BELIEVE IT IS 801, CONCERNING OPINIONS OF OTHER SCIENTISTS AND THEIR CONCERNS, PUBLISHED AND OTHERWISE, ABOUT FORENSIC DNA TESTING, THAT ARE THE KIND THAT ARE RELIED UPON REASONABLY BY EXPERTS IN THE FIELD.
WHAT WOULD ORDINARILY COME IN AS A PROPER BASIS FOR AN EXPERT TESTIMONY, THEY SAY WE CAN'T DO THAT NOW BECAUSE WE WITHDREW THIS KELLY-FRYE MOTION BEFORE. THEY HAVE ALSO MADE A MOTION IN LIMINE. IN EFFECT THEY SAY UNDER 406 WE CAN'T ATTACK THE WEIGHT OF THE EVIDENCE AND ITS RELIABILITY IN THIS WAY BECAUSE WE WITHDREW OUR MOTION. THEY THEN PROPOSE THIS MOTION IN LIMINE WHERE THEY SAY THAT WE SHOULD BE RESTRICTED IN OUR CROSS-EXAMINATION OF PROSECUTION WITNESSES ABOUT THE VIEWS OF DR. KARY MULLIS, THE WINNER OF THE NOBEL PRIZE IN CHEMISTRY FOR THE INVENTION OF THE PCR TECHNIQUE CONCERNING HIS VIEWS ON THE APPLICATION OF PCR TO FORENSICS, SUCH AS WAS DONE IN THIS CASE. AND THEY CONCEDE IN THEIR PAPERS THAT DR. MULLIS HAS TESTIFIED ON THESE MATTERS. THEY HAVE THESE TRANSCRIPTS, THAT THEIR EXPERTS HAVE LOOKED AT THESE TRANSCRIPTS AND CONSIDERED HIS VIEWS, THEY WERE BEFORE THE COURT BEFORE, BUT THEY SAY THAT BECAUSE WE WITHDREW OUR MOTION WE CAN'T CROSS-EXAMINE THEM ABOUT THOSE. AND THEY INDEED GO FURTHER AND SAY THAT WE CAN'T CROSS-EXAMINE THEIR WITNESSES ABOUT DR. MULLIS' VIEWS BECAUSE HIS OPINIONS HAVE NO VALUE WITHIN THE VIEWS THEY CLAIM OF THEIR EXPERTS, ALTHOUGH IT IS NOT IN ANY WAY EVER SAID THAT THEIR EXPERTS -- THERE IS NO AFFIDAVIT FOR ANY EXPERTS, THERE IS NONE NAMED, BECAUSE THESE EXPERTS BELIEVE THAT DR. MULLIS' LIFESTYLE, DR. MULLIS' VIEWS ON MATTERS THAT ARE COMPLETELY UNRELATED TO THIS LITIGATION HAVING TO DO WITH THE IDEOLOGY OF AIDS AND THE HIV VIRUS ARE MATTERS WHICH DISCREDIT --
I THOUGHT IT WAS -- WE HAVE PROBLEMS WITH THAT, BECAUSE THEY SAY ON THAT BASIS HE CAN'T RAISE HIS VIEWS WITH OTHER WITNESSES, NOTWITHSTANDING HIS WINNING THE NOBEL PRIZE ABOUT THIS TECHNOLOGY. BUT WHAT CONCERNS US A GREAT DEAL, YOUR HONOR, IS THAT WE ARE ABOUT TO ENTER THE TECHNICAL PHASE OF THE CASE AND YOU HAVE ISSUED AN ORDER TO US, US LAWYERS, ABOUT HOW THESE MATTERS SHOULD BE LITIGATED. AND I MENTION TO YOU THAT WE WANT TO LITIGATE THESE MATTERS ON THE MERITS IN A HIGHLY PROFESSIONAL FASHION, TRY TO CONDUCT MYSELF IN THIS FASHION THROUGHOUT THESE PROCEEDINGS IN A DIFFICULT SUBJECT MATTER THAT IS TURGID AND GIVES EVERYBODY HEADACHES, I UNDERSTAND IT, BUT WE HAVE GREAT CONCERNS. THIS CASE IS ON NATIONAL TELEVISION, IT IS BROADCAST AROUND THE WORLD. PEOPLE ARE RELUCTANT TO COME IN AS WITNESSES, LAY PEOPLE. YOU KNOW, IT APPLIES TO SCIENTISTS, TOO.
AND WHEN MOTIONS ARE FILED WHERE PERSONAL ATTACKS OF THIS KIND THAT I THINK DON'T EVEN MERIT SERIOUS CONSIDERATION -- WHAT IT DOES IS IT SERVES NOTICE TO EVERYBODY, IF YOU WANT TO COME IN HERE AND TALK ABOUT SCIENCE, IF YOU WANT TO TALK ABOUT REAL ISSUES, WELL, YOU BETTER BE PREPARED TO BE PUT UNDER A MICROSCOPE AND HAVE YOUR ENTIRE CHARACTER SUBJECT TO ATTACK. AND WE THINK THAT IS VERY UNFAIR. WE THINK THAT IS INTIMIDATING TO SCIENTISTS. WE THINK THAT IS NOT THE WAY THIS SHOULD BE CONDUCTED AND WE OBJECT TO IT. NOW, WHAT I PROPOSE TO DO, YOUR HONOR, IS AT THIS POINT GO THROUGH THE OBJECTIONS THAT WE MADE, OUR NOTICE OF OBJECTIONS, AND DEAL WITH THE PROSECUTION'S RESPONSE TO THAT AND THEN I'M GOING TO DEFER TO PROFESSOR THOMPSON TO ADDRESS THE MOTION IN LIMINE ISSUE. AND THEN IF WE HAVE TIME, WE COULD MOVE ON TO THE STIPULATION, WHICH MR. BLASIER WILL DISCUSS, AND THEN THE DEMONSTRATION BOARDS WHICH MR. NEUFELD WILL DISCUSS. THE FIRST POINT I WOULD LIKE TO MAKE ABOUT OUR NOTICE OF OBJECTIONS IS THAT WE TRIED TO DESIGN THIS IN SUCH A WAY TO INDICATE TO THE COURT WHAT ISSUES WE THINK YOU HAVE TO DECIDE BEFORE THE WITNESSES TESTIFY, WHAT ISSUES WE THINK CAN ONLY BE DECIDED AFTER YOU HEAR EXPERT TESTIMONY FROM BOTH SIDES. UMM, AND WHAT I WOULD FIRST LIKE TO DISCUSS IS THE PROSECUTION'S CONTENTION THAT BY WITHDRAWING THE DNA MOTION WHEN WE DID THAT WE HAVE EXPLICITLY GIVEN A BLANKET WAIVER TO ALL THE VARIOUS LEGAL CHALLENGES THAT WE HAVE GIVEN NOTICE WE WANT TO PURSUE. AND THE MATTERS THAT I WANT TO DISCUSS FIRST ARE THE PRONG 352, 350, COLLINS, CELLA CHALLENGES, AND JUDGE, I'M SURE YOU WILL APPRECIATE IT, YES, WE HAVE DONE A CHART THAT I WOULD OFFER TO THE COURT -- MAY I JUST WALK OVER?
THE ONE YOU WOULDN'T GIVE THE OTHER DAY AND THE ONE THAT HAS THE TENTATIVE RULINGS ON IT? I HOPE IT IS SIMILAR.
HERE. NOW, THE FIRST POINT THAT THE PROSECUTION MAKES IS THAT THEY SAY THE DAY THAT WE WITHDREW OUR MOTION WE EXPLICITLY WAIVED ALL LEGAL CHALLENGES, INCLUDING THE PRONG 3 CHALLENGES AND ALL THE ONES THAT I HAVE LISTED ON THIS CHART, AS GROUNDS FOR OBJECTION THAT GO BEYOND THE FIRST PRONG OF KELLY-FRYE. AND THEN THEY CITE TO SECTIONS OF THE RECORD, AND I'M SURE THE COURT REMEMBERS IT AND THE COURT REPORTER REMEMBERS IT, BUT AT THE MOMENT THAT THIS WAS DONE, THERE ACTUALLY WAS -- I HEARD AND I KNOW WE CORRECTED IT -- A SMALL ERROR IN THE RECORD OR ON THE LIVE NOTES, AND THAT MR. SIMPSON DID NOT USE THE WORD "WAIVER," HE USED THE WORD "MOTION," BUT THAT IS NOT REALLY THE POINT. THE POINT WAS THAT AT THE TIME THAT THIS WAS DONE, INCONSISTENT WITH WHAT THE PROSECUTION PUT IN ITS BRIEF, IT WAS ABSOLUTELY CLEAR THAT MR. SIMPSON WAS DISCUSSING AND WE HAD PROFFERED TO THE COURT OUR WITHDRAWAL MOTION WHICH HAD VERY SPECIFIC GROUNDS AS TO WHAT WE WITHDREW AND WHY WE WITHDREW IT AND THAT THAT IS WHAT HE WAS REFERRING TO. AND THEN THE COURT ACKNOWLEDGES THIS ON PAGE 10281 AND SAYS THAT -- YOU INDICATE THAT IT WAS YOUR UNDERSTANDING THAT MR. SIMPSON WAS REFERRING TO THE DOCUMENT THAT WE -- THAT HAD BEEN DRAFTED, THE WITHDRAWAL MOTION, AND IT IS ALSO CLEAR FROM THE RECORD THAT WE HAD DISCUSSED WITH MR. SIMPSON THE PROSECUTION'S PROPOSED QUESTIONS. AND OBVIOUSLY THEY HAD THEIR VIEW AT THAT TIME AS TO THE SIGNIFICANCE OF THE WITHDRAWAL, BUT THAT IS NOTHING THAT WE EXPLICITLY ACKNOWLEDGED OR BELIEVED TO BE TRUE, AND I'M SURE THE COURT REALIZED AT THAT TIME, I THINK YOU EVEN INDICATED IT, THAT ONE DAY WE WOULD VISIT THE QUESTION OF GROUNDS FOR OBJECTIONS BEYOND PRONG 1 CERTAINLY WITH RESPECT TO THE TESTING THAT HAD BEEN DONE UP TO THAT POINT. SO THE PROSECUTION'S POSITION THAT WE EXPLICITLY WAIVED IN A BLANKET FASHION ALL THESE CHALLENGES I THINK HAS NO MERIT AND IS BACKED UP BY THE RECORD. WE SHOULD ALSO NOTE THE FACTORS, I WON'T REPEAT THEM BECAUSE THE COURT REMEMBERS THEM WELL, THAT WENT INTO THAT WITHDRAWAL MOTION AND THAT WE WANTED TO RAISE PRONG 1 CHALLENGES, AND WE THINK BY WITHDRAWING THE MOTION WHEN WE DID, WHAT WE WAIVED WAS WE WAIVED OUR RIGHT TO ATTACK, OUTSIDE THE PRESENCE OF THE JURY, ALL DNA TEST RESULTS THAT HAD BEEN DONE UP TO THAT POINT, THAT WE HAD RECEIVED RESULTS FROM. THAT IS WHAT WE THINK WE WAIVED. WE ASKED THE COURT IN DECEMBER TO CONSIDER A PROCEDURE WHEREBY WE COULD LITIGATE THE PRONG 1 ISSUES DURING THE COURSE OF TRIAL, HAVING THE PROSECUTION PRESENT ITS DNA WITNESSES IN EXACTLY THE PASSION THAT THEY ORDINARILY WOULD, ANY WITNESS THAT THEY FELT THEY NEEDED FOR FOUNDATION COULD BE TAKEN OUTSIDE THE PRESENCE OF THE JURY, WORK ON A SATURDAY OR ON A DOWN DAY, WHATEVER ELSE, AND THAT WE WOULD PRESENT WITNESSES. AND THEN AT THE END OF THE TRIAL THE COURT COULD CONSIDER STRIKING TESTIMONY AND GIVE INSTRUCTIONS TO THE JURY AND WE WOULD WAIVE THE PREJUDICE OF HAVING THAT BELL RUNG AND THEN UNRUNG IF WE PREVAILED ON ANY OF THOSE CLAIMS. THE COURT DECLINED OUR PROPOSAL AT THAT TIME INDICATING THAT YOU DIDN'T FEEL WE WERE SUFFICIENTLY CONCRETE ABOUT IT IN STATING OTHER REASONS AND YOU JUST DECLINED TO DO IT. BUT WE THINK WE WAIVED JUST AT THAT POINT THE RIGHT TO DO PRONG 1 CHALLENGES OUTSIDE THE PRESENCE OF THE JURY AND WE DIDN'T WAIVE ANY OF THE CHALLENGES THAT WE'VE OUTLINED HERE. SO THAT WAS THEIR FIRST ARGUMENT; WAIVER, BLANKET WAIVER, EXPLICIT WAIVER, WHICH I DON'T THINK IS SUPPORTED BY THE RECORD IN OUR WITHDRAWAL MOTION. THE SECOND ARGUMENT NOW IS THAT -- THAT THE PROSECUTION OFFERS IS THAT THEY SAY UNDER CALIFORNIA LAW THAT YOU MUST DO PRONG 3 CHALLENGES, 352 CHALLENGE, CHALLENGES THAT ARE WE THINK GOVERNED BY BARNEY, WALLACE AND PIZARRO, THE COLLINS CHALLENGE, THIS NOTION OF INDEPENDENCE, PEOPLE VERSUS CELLA, THIS MOTION OF QUANTIFYING ALL THE RELEVANT VARIABLES ACCURATELY, THAT ALL THOSE HAVE TO BE DONE PRETRIAL THROUGH A KELLY-FRYE HEARING AND THEY CANNOT BE DONE DURING THE COURSE OF TRIAL BY MAKING OBJECTIONS WHEN WE ACTUALLY GET THE RESULTS AND WE SEE HOW THE TESTS ARE PERFORMED. WE DON'T THINK THAT THAT IS CORRECT. WE DON'T THINK THAT THERE IS ANY BASIS IN THE LAW FOR THAT. AND IN FACT THE PROSECUTION SEEMS TO BE GOING FURTHER. THEY SEEM TO BE TAKING THE POSITION THAT THEY ARE FREE, BECAUSE OF OUR WITHDRAWAL OF THE MOTION, TO PREVENT -- PRESENT ANY DNA EVIDENCE IN ANY FORM, LITERALLY SCIENTIFIC GARBAGE, IF THEY WANT TO, BEFORE THE JURY WITHOUT ANY LIMITATIONS BY THE COURT OR ANY RIGHT BY THE DEFENSE TO OBJECT TO FOUNDATIONS. AND WE DON'T THINK THAT THAT MAKES ANY SENSE AND WE DON'T THINK THAT IS THE LAW. IT IS VERY REVEALING TO US THAT THE PROSECUTION IN ITS PAPERS DOES NOT EVEN BOTHER TO MAKE A POINT BY POINT RESPONSE TO OUR VARIOUS OBJECTIONS. THEY JUST SAY BLANKET WAIVER AND YOU EITHER DO IT IN A KELLY-FRYE HEARING BEFORE THE JURY OR YOU CAN'T WAIVE THESE THIRD PRONG CHALLENGES, THESE 352 CHALLENGES AND THE OTHER CHALLENGES. WE DON'T THINK THAT MAKES ANY SENSE. NOW, IN TERMS OF THESE OBJECTIONS, WHAT WE WOULD PROPOSE TO THE COURT IS THAT THERE IS ONLY REALLY TWO OF THEM, MAYBE THREE OF THEM, THAT HAVE TO BE RESOLVED BEFORE THE WITNESSES TESTIFY. AND THOSE ARE WHAT I WOULD SAY ON OUR LIST IS NO. 1, PRESENTING DNA EVIDENCE TO THE JURY WITHOUT STATISTICS. AND NO. 2, SUGGESTIONS THAT DNA TESTS PROVIDE UNIQUE IDENTIFICATION. A RELATED ISSUE I THINK IS THE SECOND TO LAST ENTRY IN OUR CHART, THE PROSECUTOR'S FALLACY, BUT LET ME JUST ADDRESS THIS FIRST POINT BECAUSE I THINK IT IS AN ABSOLUTELY ESSENTIAL ONE, AND IT IS ONE THAT HIGHLIGHTS THE WAY THE PROSECUTION IS PROCEEDING HERE THAT I THINK HAS BEEN UNFAIR AND ABUSIVE IN TERMS OF WHY DNA EVIDENCE OUGHT TO BE PRESENTED AND A MATTER THAT I THINK IS OF EXTRAORDINARY CONSEQUENCE IN TERMS OF HOW THIS KIND OF EVIDENCE IS GOING TO BE PRESENTED TO JURIES FROM THIS POINT FORWARD, NOT JUST IN THIS COURTROOM, I THINK, BUT ACROSS THE COUNTRY, INDEED ACROSS THE WORLD. WHAT IS DNA EVIDENCE AND WHAT ISN'T IT? WHAT IS ITS REAL SIGNIFICANCE? HOW CAN COURTS STRUCTURE THE PRESENTATION OF THIS EVIDENCE SO THAT JURIES ARE NOT MISLED AND THEY TAKE IT IN THE PROPER CONTEXT FOR EXACTLY WHAT IT IS WORTH AND WHAT IT IS NOT WORTH? THIS IS A VERY VEXING QUESTION. THIS IS ONE THE NATIONAL ACADEMY OF SCIENCES HAS OPINED ON. AS YOU SAW FROM THE PAPERS WE SUBMITTED, IT IS ONE THAT THEY ARE STILL STRUGGLING WITH AND IT IS ALSO AN ISSUE THAT ALL THE LEGAL AND SCIENTIFIC COMMENTATORS ARE COMMENTING ON. THIS IS A LEGAL PRINCIPLE. BUT I THINK THERE ARE CERTAIN APPOINTMENTS THAT HAVE ALREADY BEEN ESTABLISHED IN CASE LAW AND WITHIN OTHER JURISDICTIONS AND WITHIN THE SCIENTIFIC COMMUNITY THAT PEOPLE TAKE THAT IS CLEARLY APPROPRIATE AND SO WE URGE THE COURT TO THINK ABOUT THIS VERY CAREFULLY, AND THIS IS THE ARGUMENT: NO. 1, I THINK IT IS ABSOLUTELY CLEAR FROM BARNEY, AND I CITE BARNEY, WALLACE AND PIZARRO, BECAUSE AT THIS POINT I THINK THAT IS ALL WE CAN CITE, THE RECENT ACTIONS OF THE CALIFORNIA SUPREME COURT IN TAKING VENEGAS AND PUTTING A GRANT AND HOLD ON SOTO, ON WILDS, WHICH WAS A DIFFERENT POSITION THAN WE WERE IN WHEN WE BEGAN THIS TRIAL, MAKES THAT THE GOVERNING PRECEDENT. BUT UNDER ANY PRECEDENT DNA EVIDENCE IS STATISTICAL AND YOU SHOULD NOT BE ABLE TO PRESENT THIS EVIDENCE WITHOUT STATISTICS. NOW, THE PROSECUTION HAS ALREADY DONE THAT IN THE OPENING STATEMENT WHERE MISS CLARK WENT ON SAYING HERE IS A BLOOD STAIN, MATCH. HERE IS A BLOOD STAIN, MATCH. THEN IN THE EXAMINATION OF DETECTIVE VANNATTER, IN THE COURSE OF A DISCOVERY VIOLATION, AND I THINK THE RECORD IS CLEAR IN A WAY THAT I THINK IS PURPOSEFUL, SHE ELICITED FROM HIM THE TESTIMONY THAT, OH, THERE WERE SCRAPINGS TAKEN FROM UNDER NICOLE BROWN SIMPSON'S FINGERNAILS AND DNA TESTS WERE DONE AND THE CONCLUSION WAS THAT IS HER BLOOD. NOW, THAT IS NOT WHAT DNA TESTS SHOW. THEY GIVE YOU RESULTS WHICH HAVE GENE FREQUENCIES AND THAT IS WHAT THEY SHOW. THEY SAY THIS IS THE GENE FREQUENCY OF THE PROFILE. AND NOBODY WOULD SUGGEST THAT WE ARE AT A POINT NOW WHERE THOSE TESTS IN PARTICULAR, THOSE PCR-BASED TESTS, COULD EVER REACH THE CONCLUSION THAT WOULD SATISFY ANY SCIENTIST THAT IS HER BLOOD. NOW, THE LAW IS CLEAR IN BARNEY THAT YOU CANNOT PRESENT THIS EVIDENCE WITHOUT PRESENTING STATISTICS. YOU CAN'T SAY IT IS JUST A MACHINE AND NOT PRESENT STATISTICS, BUT THAT IS PRECISELY WHAT THE PROSECUTION HAS DONE SO FAR IN THIS PROCEEDING. AND IT IS NOT LIKE THEY DON'T KNOW WHAT THEY ARE DOING, YOUR HONOR. THEY HAVE ALL THE PEOPLE HERE IN CALIFORNIA THAT HAVE BEEN FROM THE VERY BEGINNING TRYING TO ENGINEER THE ADMISSION OF THIS EVIDENCE IN FAVOR OF THE PROSECUTION, THE PROPONENTS OF IT, AND THEY KNOW THE LAW. AND WHAT IS VERY INTERESTING IS THAT MISS CLARK, IN AN ARTICLE BY ONE OF OUR BRETHREN, PROFESSOR RICHARD LEMPERT, THAT WE HAVE CITED, ACTUALLY TAKES TO TASK MISS CLARK'S ARGUMENTS IN ANOTHER CASE WHERE SHE ARGUED DNA EVIDENCE AND SHE DID THE VERY SAME THING, AND THAT IS NOTED IN OUR PAPERS. NOW, THAT IS UNFAIRLY PREJUDICIAL. SO WHAT DO WE PROPOSE? WHAT WE PROPOSE IS THAT, A, I THINK IS THE LAW THE EVIDENCE HAS TO BE PRESENTED IN THE FORM OF STATISTICS, GENE FREQUENCIES, BUT THAT IS NOT ALL. IF YOU AGREE WITH US AND YOU CAN SEE THAT THAT MUST BE THE WAY IT IS DONE BECAUSE THAT IS THE LAW, THEN WE DEAL WITH ANOTHER QUESTION AND THAT IS WHAT KIND OF PRELIMINARY INSTRUCTION WILL THIS COURT GIVE TO THE JURY ABOUT THESE STATISTICS? THIS WE THINK IS THE MOST IMPORTANT POINT. IF YOU GO WITH US THE NEXT STEP, AND THAT IS MAKE THEM PUT IT IN THE FORM OF STATISTICS, BECAUSE WHAT THE JURY OUGHT TO BE INSTRUCTED IS THAT WHAT THEY ARE ABOUT TO HEAR ARE STATISTICAL ESTIMATES ABOUT GENE FREQUENCIES, UMM, AND THAT THEY SHOULD BE INSTRUCTED THAT THOSE GENE FREQUENCY ESTIMATES DO NOT REPRESENT THE FALSE POSITIVE ERROR RATES OF THE LABORATORY. THEY DO NOT REPRESENT A PROBABILITY ABOUT SAMPLE HANDLING MISTAKES WITHIN A LABORATORY. THEY DO NOT REPRESENT PROBABILITIES ABOUT, UMM, FALSE MATCHES ARISING FROM CROSS-CONTAMINATION IN THE COLLECTION OF SAMPLES AND THEY DO NOT REPRESENT PROBABILITIES AS TO WHETHER OR NOT EVIDENCE WAS TAMPERED WITH AND THEY DO NOT REPRESENT PROBABILITIES OF GUILT. AND I THINK THAT THE JURY HAS TO BE INSTRUCTED ON EXACTLY WHAT IT IS AND WHAT IT ISN'T. AND WE WOULD -- IF YOU AGREE WITH US THAT IT MUST BE STATISTICAL, THEN WE WILL PRESENT TO YOU A PRELIMINARY INSTRUCTION ON THIS POINT THAT WE THINK IS ESSENTIAL TO GIVE THE JURY GUIDANCE ABOUT WHAT THEY ARE GOING TO HEAR, WHAT IT MEANS AND WHAT IT DOESN'T MEAN. AND THESE ARE ISSUES THAT WE RAISED IN OUR INITIAL BRIEFS AND PEOPLE ARE WRITING ABOUT. THERE IS AN ARTICLE THAT I WOULD CALL TO YOUR ATTENTION THAT HAS JUST BEEN PUBLISHED IN JURIMETRICS THAT WAS INITIALLY CITED IN OUR PAPERS AND IN ITS UNPUBLISHED FORM BY DR. JAY KOEHLER CONCERNING ERRORS AND EXAGGERATIONS IN THE PRESENTATION OF DNA EVIDENCE. AND THE RESEARCH THAT DR. KOEHLER HAS DONE, AND OTHERS IN THIS FIELD, IS THAT IF YOU PRESENT -- HE DID A STUDY -- THEY DID A MOCK CASE AND THE JURY -- THE JURY OF COLLEGE STUDENT'S ESSENTIALLY WAS PRESENTED DNA EVIDENCE ABOUT A GENE FREQUENCY OF ONE IN A BILLION AND THEN THEY WERE ASKED GIVEN THE EVIDENCE THEY SAW WOULD THEY VOTE GUILTY OR INNOCENT? THEN THEY WERE GIVEN THE ONE IN A BILLION GENE FREQUENCY STATISTIC AND THEY WERE ALSO GIVEN A FALSE POSITIVE ERROR RATE, SOMETHING ON THE ORDER OF ONE IN 200, AND THE JURY REACHED EXACTLY THE SAME CONCLUSION, HUM, WHEN THEY HAD BOTH STATISTICS AS OPPOSED TO JUST HAVING THE ONE IN A BILLION STATISTIC ALONE. IN OTHER WORDS, IT DIDN'T AFFECT IT AT ALL. ON THE OTHER HAND, IF YOU GAVE THEM THE STATISTICS OF JUST THE FALSE POSITIVE ERROR RATE, THEY WOULD REACH A COMPLETELY DIFFERENT VERDICT. MUCH IT WAS A SIGNIFICANT EFFECT. NOW, WHAT THAT REFLECTS, YOUR HONOR, IS A RICH LITERATURE, PSYCHOLOGICAL LITERATURE THAT WE ARE PREPARED TO PUT ON TESTIMONY ABOUT, UMM, HAVING TO DO WITH, UMM, THE NAIVETE THAT LAY PEOPLE HAVE, MANY OF US HAVE ABOUT STATISTICS AND ABOUT HOW EASILY PEOPLE CAN BE CONFUSED AND MISLEAD AND PREJUDICED BY THE PRESENTATION OF STATISTICS. THERE IS A RICH LITERATURE IN THIS FIELD, AND WHAT WILL NOT ORDINARILY BE UNDERSTOOD BY PEOPLE IS THAT IF YOU HAVE A FALSE POSITIVE ERROR RATE, FOR EXAMPLE, OF ONE IN 200 OR ONE IN 243, I THINK IT WAS THE LAST ONE THAT CELLMARK OFFERED FOR ITSELF, THEN THE CHANCES, FOR EXAMPLE, THAT A PARTICULAR TEST RESULT IS A FALSE POSITIVE IS ONE OUT OF 243. AND THE GENE FREQUENCY OF ONE IN A BILLION IS IRRELEVANT, OR SO WE WOULD ARGUE OR AT LEAST PEOPLE SHOULD UNDERSTAND THAT ARGUMENT OR UNDERSTAND THAT IT IS ONE THAT IS AVAILABLE TO THEM. NOW, THEY HAVE TO UNDERSTAND THAT DISTINCTION AND THEY SHOULDN'T BE CONFUSING THE GENE FREQUENCY STATISTIC WITH ANYTHING OTHER THAN WHAT IT IS AND BE FREE TO UNDERSTAND AND CONSIDER THE OTHER EVIDENCE IN THE CASE. AND IT IS CRITICAL THAT JURORS BE -- UNDERSTAND THAT AND THAT THEY BE INSTRUCTED ON IT AND THAT THESE -- THIS EVIDENCE BE PRESENTED IN THE FORM OF STATISTICS. LET ME MOVE ON QUICKLY TO THE REMAINDER OF THE ARGUMENTS WHICH WE THINK YOU SHOULD ONLY DECIDE AFTER HEARING TESTIMONY FROM EXPERTS ON BOTH SIDES, AND I WILL JUST HIT A FEW OF THEM BECAUSE I THINK YOU ARE FAMILIAR WITH THEM FROM THE PAPERS. LET'S TAKE IN OUR CHART FAILURE TO ACCOUNT FOR POPULATION SUBSTRUCTURE, AN ISSUE I'M SURE THE COURT HAS BECOME LEARNED IN. ONE METHOD FOR FAILURE TO ACCOUNT FOR POPULATION SUBSTRUCTURE IS THE CEILING PRINCIPLE. NOW, AS I UNDERSTAND THE ISSUES NOW BEFORE THE CALIFORNIA SUPREME COURT, THE QUESTION IS A PRONG 3 QUESTION AS ARTICULATED IN BARNEY WHICH WOULD BE THE GOVERNING PRECEDENT WE ARGUE NOW OR THE ONLY CITEABLE PRECEDENT AND THAT IS THE IDEA THAT IF THEY WANT TO OFFER GENE FREQUENCIES, THEY CAN ONLY OFFER THEM AT THE VERY -- VERY -- IF THEY CAN OFFER THEM AT ALL, PURSUANT TO THE CEILING PRINCIPLE, CERTAINLY FOR RFLP TESTS, THAT IS ALL THEY OUGHT TO BE ABLE TO OFFER IN TERMS OF ACCOUNTING FOR SUBSTRUCTURE. AND I WILL TELL YOU NOW THAT IT IS OUR POSITION YOU DON'T EVEN NEED A HEARING. WE THINK THAT ANY PRODUCT RULE STATISTIC SHOULD NOT BE ADMITTED. WE SAY IF THEY ARE GOING TO BE ADMITTED AT ALL IT SHOULD ONLY BE DONE BY THE CEILING PRINCIPLE TO ACCOUNT FOR SUBSTRUCTURE. THAT IS THE CORRECT PROCEDURE. AND WE THINK THAT IS THE ISSUE THE CALIFORNIA SUPREME COURT IS CONSIDERING RIGHT NOW BECAUSE THAT IS WHAT HAPPENED IN VENEGAS. THEY INTRODUCED THE PRODUCT RULE, NOT THE CEILING PRINCIPLE. THE COURT REVERSED AND THE CALIFORNIA SUPREME COURT IS CONSIDERING IT, SO THEY ARE ON NOTICE OF THAT RIGHT NOW, BUT THEY ARE A FAR CRY FROM INTRODUCING THE CEILING PRINCIPLE. THEY ARE INTRODUCING EVIDENCE IT IS A MATCH, IT IS HER BLOOD. NOW, WE ARE ALSO VERY CONCERNED ABOUT THE FAILURE OF CONTROLS. WE THINK THIS IS ABSOLUTELY BASIC. UMM, WE THINK THAT THERE IS A NUMBER OF TESTS HERE WHERE THERE WAS A FAILURE OF CRITICAL CONTROLS. IF THE CONTROLS FAIL, THEN YOU ARE NOT USING CORRECT PROCEDURES AND THE EVIDENCE IS UNRELIABLE AND IT SHOULDN'T GO BEFORE THE JURY, AND AFTER HEARING THE EVIDENCE, I THINK YOU WILL AGREE WITH THAT PROPOSITION AND THERE SHOULD BE A MOTION TO STRIKE. MIXED STAINS, JUST TO CLARIFY IT. LET'S SAY THAT THEY DO A PCR TEST ON BLOOD SAMPLES FROM UNKNOWN SOURCES WHICH I THINK IS VERY CLEAR IS THE -- THE BIGGEST PROBLEM, I MEAN, AS OPPOSED TO A SITUATION WHERE YOU HAVE SEMEN, SPERM IN A VAGINAL SWAB AND YOU CAN DO A DIFFERENTIAL EXTRACTION. WHEN YOU ARE DEALING WITH TWO UNKNOWN BLOOD STAINS OR BLOOD STAIN OF MANY POSSIBLE SOURCES, YOU CAN'T DO DIFFERENTIAL EXTRACTIONS. UMM, IT IS A PROBLEM. THE LITERATURE ACKNOWLEDGES THAT. THE PROPONENTS OF THE TEST ACKNOWLEDGE IT. LET'S SAY THAT THE DOTS ON THESE STRIPS OR THE D1S80 BANDS THAT THEY CLAIM IS A MIXTURE OF A NUMBER OF PARTIES ALL HAVE EQUAL INTENSITIES. OUR POSITION IS IF THAT IS WHAT THEY THINK IT IS, THEN AT THE VARIOUS LEAST THEY CAN'T PRESENT JUST THE GENE FREQUENCIES OF THE PEOPLE WHO THEY THINK IT IS, THEY HAVE TO PRESENT -- OR THE PROFILES THAT THEY THINK IT REPRESENTS -- THEY HAVE TO SUM ALL THE FREQUENCIES OF ALL THE POSSIBLE PROFILES WHEN THEY ARE PRESENTING STATISTICS TO THE JURY. THE NEXT ARGUMENT HAS TO DO WITH MIXED STAINS ITSELF AND THE FACT THAT IT IS NOT VALIDATED, THAT BY INTENSITIES YOU CAN REALLY DIFFERENTIATE WHO IS A PRINCIPLE OR A PRIMARY OR A SECONDARY OR A TERCERY CONTRIBUTOR TO ANY PARTICULAR STAIN, PARTICULARLY AN UNKNOWN BLOOD STAIN OF THAT KIND. AND THE NATIONAL ACADEMY OF SCIENCE IN ITS 1992 REPORT SUPPORTS THAT CONTENTION. OUR EXPERTS TAKE THAT POSITION. AND I THINK THAT THAT IS SOMETHING THAT YOU SHOULD CONSIDER AFTER HEARING ALL THE EVIDENCE FROM BOTH SIDES BEFORE MAKING A RULING. AND WE THINK THAT THAT IS OBVIOUSLY A PRONG 3 ISSUE, AS WE INDICATED, A BARNEY, WALLACE, PIZARRO ISSUE. AND THEN THERE ARE OTHER ISSUES ABOUT DATABASES AND EVERYTHING ELSE THAT WE DESCRIBE IN OUR PAPERS AND IF IN THE COURT WANTS ME TO ADDRESS THEM ONE BY ONE, I WON'T, BECAUSE I THINK THEY ARE COVERED.
UMM, AND OBVIOUSLY I KNOW YOU HAVE TIME PROBLEMS. I WOULD LIKE TO MOVE ON NOW TO THE PRONG 1 ISSUE.
NOT THE TIME PROBLEMS. I ONLY HAVE ONE COURT REPORTER AND I WEAR THEM OUT AFTER A DAY.
KEY QUOTEPLUS SHE HAS TO GO HOME AND THEN DO THE TRANSCRIPT SO THAT I HAVE IT ON MY DESK TOMORROW MORNING WHEN WE START.
MR. SHAPIRO: -- TO PROFESSOR THOMPSON. LET ME DISCUSS THE PRONG 1 ISSUE. WE TAKE THE POSITION, AS WE HAVE INDICATED IN OUR PAPERS, THAT WE ARE ENTITLED TO A HEARING ON PRONG 1 ISSUES WITH RESPECT OR ALL DNA TEST RESULTS THAT WE RECEIVED AFTER THE WITHDRAWAL OF THE MOTION AND TEST RESULTS THAT HAVE BEEN GOING ON SINCE THE TRIAL AND TEST RESULTS THAT I UNDERSTAND ARE STILL IN PROGRESS THAT WE HAVEN'T SEEN. WE THINK WE ARE ENTITLED TO THAT, UMM, AS A MATTER OF LAW. UMM, WE AGAIN WOULD PROPOSE THAT, UMM, IN THE ALTERNATIVE -- IF YOU REJECT THAT, WE CERTAINLY WOULD PROPOSE IT THIS WAY: WE WOULD CERTAINLY TAKE A HEARING UNDER THE SAME TERMS AND CONDITIONS THAT WE PROPOSED THE LAST TIME WITH RESPECT TO PRONG 1 ISSUES, THAT IS, THAT THEY CAN PUT ON THE EVIDENCE HOWEVER THEY WANT IT, AND THEN IF THEY THINK ME NEED ADDITIONAL FOUNDATIONAL WITNESSES ON THE ISSUES AS TO THE NEW TEST RESULTS, THEY CAN CALL THEM OUTSIDE THE PRESENCE OF THE JURY AND WE PUT ON WITNESSES IN EXACTLY THE SAME WAY AND THEN YOU WILL MAKE A DECISION. BUT WE THINK, A, WE ARE ENTITLED TO THIS OUTSIDE THE PRESENCE OF THE JURY, AND B, IF WE ARE ENTITLED TO IT OUTSIDE THE PRESENCE OF THE JURY, WE ARE CERTAINLY ENTITLED TO THE PROPOSAL THAT WE HAVE MADE NOW AGAIN. AS TO HOW PRONG 1 ISSUES SHOULD BE LITIGATED. NOW, THE QUESTION WILL CERTAINLY ARISE, WELL, HAVEN'T YOU WAIVED THAT AS TO THE FUTURE TESTS, TOO, BECAUSE AT ISSUE INITIALLY WAS METHODOLOGIES. PRONG 1 GOES TO METHODOLOGIES AND YOU DIDN'T -- WE CHOSE NOT TO GO THROUGH THIS VERY LONG HEARING THAT THE PROSECUTION WAS GOING TO MAKE AS LONG AS IT COULD BY CALLING ALL THE WITNESSES THEY COULD WHILE THE JURY WAS SEQUESTERED AND MAKE US SPEND ALL THAT MONEY AND RUN THE RISK OF PRETRIAL PUBLICITY, ALL OF THOSE FACTORS THAT WE HAVE LAID OUT BEFORE. UMM, UMM, YOU KNOW, HAVE YOU WAIVED IT? WELL, WE DON'T THINK WE HAVE WAIVED THAT AT ALL ON THE NEW TEST RESULTS. AND I THINK THAT THE LANDSCAPE HERE WAS THE ONE THAT YOU SET OUT INITIALLY WHEN WE BREACHED THE WHOLE ISSUE OF WHETHER OR NOT THE PROSECUTION COULD CONTINUE TO TEST UP THROUGH THE BEGINNING OF TRIAL AND THROUGHOUT THE TRIAL IN ANY FASHION OR FORM THAT THEY WANTED TO. NOW, AS I UNDERSTAND THE COURT'S RULING ON THAT, IS THAT THEY WERE ENTITLED TO DO SO SHORT OF BAD FAITH, BAD FAITH USE OF IT. WELL, WE CONTEND IT THEN, WE CONTEND NOW, THAT IN FACT THEY HAVE ACTED IN BAD FAITH IN TERMS OF THE TIMING OF THEIR TESTING. (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
AND LET'S TALK ABOUT SOME ISSUES THAT I THINK ARE -- YOU KNOW, THERE WAS NO SECRET FROM THE HEARING WE DID ON A SPLIT AND ON THE PAPERS THAT WE FILED THAT WE CONSIDERED THE COLLECTION OF SAMPLES AND THE POSSIBILITY OF CROSS-CONTAMINATING SAMPLES ON JUNE 13TH TO BE A GROUND IN AND OF ITSELF THAT WOULD INVALIDATE THE DNA TEST RESULTS AND WAS A BASIS FOR CONTESTING THEM AT THIS TRIAL. UMM, THE PROSECUTION, ON SEPTEMBER 26, 1994, SENT SAMPLES THAT WERE RECOVERED ON JULY 3RD FROM THE REAR GATE AT BUNDY; NUMBERS 115, 116, 117, TO THE DEPARTMENT OF JUSTICE. NOW, OBVIOUSLY THEIR CONTENTION IS, THAT IS, THIS BLOOD IS A CONTINUATION OF BLOOD DROPS LEFT BY THE DEFENDANT AT THE TIME OF THE KILLINGS AND THERE IS SOME ON THE WALKWAY AND THERE IS SOME ON THE BACK GATE. THAT IS THEIR POSITION. THEY DID NOT TEST THIS. THEY COULD HAVE DONE PCR SCREENING TESTS ON THESE, ONE OR TWO DAYS. THEY DID NOT DO A DQ-ALPHA TEST OR A D1S80 TEST UNTIL FEBRUARY 20. I SUBMIT TO YOU IT IS CERTAINLY -- YOU KNOW, THEY WANTED THE DEFENSE TO COMMIT ITSELF TO A POSITION WITH RESPECT TO THE BUNDY BLOOD DROPS AND THEN THEY TEST IT AND THEN THEY COME IN AND THEY SAY, SEE, ANYTHING THAT HAPPENED ON JUNE 13TH CAN'T AFFECT WHAT HAPPENED ON JULY 3RD AND THEN THEY COULD, BY MEANS OF THIS FORENSIC AMBUSH, DERAIL THOSE ARGUMENTS. SIMILARLY, WE HAVE THE WHOLE QUESTION OF THE BRONCO AND HOW THE STAINS WERE TAKEN FROM THE BRONCO. WE HAD A WHOLE HEARING ON CHAIN OF CUSTODY WITH THE BRONCO, AND IT IS WELL-KNOWN THAT AFTER INITIAL SWATCHING WAS DONE WITH THE BRONCO ON JUNE 14TH, IT WAS LEFT TO THE VAGARIES OF VIERTEL'S WITHOUT A PROTECTION ON IT, PROTECT THIS BIOLOGICAL EVIDENCE. PEOPLE WENT IN THERE, THINGS WERE STOLEN, ALL KIND OF THINGS HAPPENED TO THAT CAR. THEN MIRACULOUSLY ON AUGUST 26TH THEY WENT IN AND THEY TOOK OTHER SWATCHES. IN OPENING STATEMENT MARCIA CLARK SAID TO THE JURY I HAVE SHOWN YOU ALL THESE THINGS FROM THE BRONCO AND THE DEFENSE IS GOING TO SAY SOME THINGS ABOUT WHAT HAPPENED TO THE BRONCO AFTER JUNE 14TH AND IT IS ALL VERY INTERESTING BUT IT DOESN'T RELATE TO THE TESTING RESULTS FROM THE BRONCO FROM SAMPLES THAT WERE TAKEN ON JUNE 14TH. WELL, LO AND BEHOLD, SAMPLES 303, 304, WHICH ARE FROM THE SAME AREA OF THE BRONCO AS WERE SWATCHED ON JUNE 14TH, BUT WERE TAKEN ON AUGUST 26, THEY START TESTING IN MARCH. IN MARCH. AND GET DIFFERENT RESULTS THAN THEY DID THE FIRST TIME AROUND. AND THEN AS YOU KNOW, THEY COME IN AND SAY WE WANT TO COMBINE ALL THOSE SAMPLES AND DO AN RFLP TEST. THAT IS FORENSIC AMBUSH, TRYING TO CHANGE THE TERRAIN OF HOW THIS CASE IS ARGUED BECAUSE THE FAILURE OF CONTROLS ON THE PCR TESTS IS MOST CLEARLY EVIDENT FROM THE INITIAL RESULTS THAT THEY GOT ON THE BRONCO. SO I THINK THAT WE THINK THAT IS BAD FAITH, BUT YOU DON'T HAVE TO MAKE A FINDING OF BAD FAITH. LET'S JUST SAY IN TERMS OF PARAMETERS, AND THE GROUNDRULES OF THIS CASE AND IT IS AN UNUSUAL ONE, LET'S SAY IT IS STRATEGIC. LET'S SAY THAT THE PROSECUTION DECIDED TO GO ABOUT ITS DNA TESTING, SEEING HOW THE DEFENSE WAS DEVELOPING AND THEN THEY DID IT IN A STRATEGIC WAY. WELL, IF THEY CAN DO THAT IN A STRATEGIC WAY AND CHANGE THE ENTIRE LIKE OF ATTACK IN THE DEFENSE, THEN THE DEFENSE IS ENTITLED TO RECONSIDER AND SAY, WELL, THE GAME WASN'T WORTH THE CANDLE WHEN WE WITHDREW OUR MOTION IN LIGHT OF WHAT WE KNEW IN JANUARY, BUT NOW WE HAVE NEVER -- WE HAVE NEVER TAKEN THE POSITION THAT WE THOUGHT THESE METHODOLOGIES WERE RELIABLE, PARTICULARLY THE MORE ESOTERIC NEW PCR TESTS FOR WHICH THEY DON'T EVEN HAVE DATABASES IN PLACE THAT WE THINK ARE, YOU KNOW, CLOSE TO LARGE ENOUGH OR RELIABLE ENOUGH. WE HAVE MADE THAT CLEAR BUT WE HAVE A CONSISTENT POSITION. WE THINK THERE IS REAL PROBLEMS WITH THE METHODOLOGY, BUT IF THE GAME IS NOT WORTH THE CANDLE IN JANUARY BECAUSE OF THE STATE OF THE EVIDENCE AND NOW THEY WAIT AND THEY TRY TO DO THIS IN A STRATEGIC WAY, YOU DON'T HAVE TO MAKE AN INDEPENDENT FINDING OF BAD FAITH. WE THINK WE ARE ENTITLED TO RAISE THOSE OBJECTIONS NOW AND LITIGATE THEM, NOW, PARTICULARLY ON TESTING THAT WE THINK WOULD NEVER -- SHOULD NEVER HAVE COME IN, UMM, UNDER ANY CIRCUMSTANCES. SO BASICALLY THAT IS OUR ARGUMENT WITH RESPECT TO THE PRONG 1. DO YOU HAVE ANY QUESTIONS FOR ME ON THAT? I WILL DEFER -- ONE SECOND.
IT HAS BEEN SUGGESTED TO ME THAT GIVEN THE TIME CONSTRAINTS, MAYBE IT IS BETTER TO HEAR FROM THEM IN RESPONSE TO THIS BEFORE WE GO ON. UP TO YOU.
NICE TIMING. COUNSEL, SINCE I KNOW ALL OF YOU ARE FROM -- OR MOST OF YOU ARE FROM OUT OF TOWN, WHAT IS YOUR SCHEDULE IN THE NEXT FEW DAYS?
WE ARE HERE, BUT YOUR HONOR, WITH YOUR PERMISSION, WHAT YOU COULD DO IS GIVE US SOME GUIDANCE AND DIRECTION ABOUT SCHEDULING OVER THE NEXT FEW DAYS, BECAUSE YOU HAD MENTIONED YESTERDAY YOU WERE THINKING ABOUT A CERTAIN TRANSITION, TRANSITIONAL PERIOD OR SOMETHING IN BETWEEN DIFFERENT PORTIONS OF THE CASE, AND IF YOU COULD JUST GIVE US SOME DIRECTION AT THIS POINT, WE CAN CERTAINLY ACCOMMODATE YOU.
WELL, I AM NOT AWARE OF WHEN THE PROSECUTION EXACTLY IS GOING TO SHIFT GEARS INTO EVIDENCE COLLECTION. IT IS NOT ABUNDANTLY CLEAR TO ME YET.
ALL RIGHT. THEN WE WILL PROBABLY SHIFT GEARS AND WE HAVE TO RESOLVE SOME OF THESE ISSUES BEFORE WE LAUNCH INTO THAT, SO DO WE KNOW, MR. GOLDBERG, WHO IS GOING TO APPEAR, SINCE WE HAVE FINISHED WITH MR. WILLIAMS, WE HAVE SOMETHING TO DO WITH WESTEC, IF I RECALL, SOMETHING TO DO WITH AIRTOUCH RECORDS?
YEAH. THAT IS WHAT I UNDERSTAND. I UNDERSTOOD THAT THERE WERE A FEW MORE WITNESSES TO CALL, AND WE DON'T KNOW ALL THE DETAILS, BUT FROM WHAT I UNDERSTAND, THEY ARE FAIRLY BRIEF.
ALL RIGHT. THEN PERHAPS WE COULD ADDRESS -- START READDRESSING OR CONTINUING OUR DISCUSSION AT 1:30 TOMORROW. DOES THAT SOUND REALISTIC?
YOUR HONOR, AFTER THE PEOPLE ARE FINISHED WITH THE REMAINING WITNESSES BEFORE WE GET TO EVIDENCE COLLECTION, THEN DOES THE COURT WANT TO TAKE IT UP AT THAT TIME IF THAT IS IN THE MORNING?
IT SEEMS TO BE -- WELL, NO -- WELL, I HAVE NO IDEA WHAT THE PROSECUTION IS GOING TO PRESENT ME WITH TOMORROW MORNING. THESE THINGS HAVE A HABIT OF MUSHROOMING.
YOUR HONOR, I BELIEVE IT WILL BE EITHER TWO OR THREE -- TWO OR THREE WITNESSES TOMORROW, PLUS A STIPULATION, WHICH SHOULD TAKE THE MORNING. I'M PRETTY CONFIDENT IT WILL TAKE ALL MORNING.
ALL RIGHT. LET'S SCHEDULE FOR 1:30 TOMORROW TO CONTINUE THIS DISCUSSION. ALL RIGHT. ANYTHING ELSE?
YOUR HONOR, JUST IN TERMS OF THAT WE DON'T EXPECT THAT WE WILL ACTUALLY BEGIN THE WITNESSES ON COLLECTION UNTIL EARLY NEXT WEEK, BECAUSE WE ALSO WANTED -- WE ALSO HAVE SOME DISCOVERY CONCERNS THAT ARE RAISED IN THAT LETTER THAT WE WANT TO ADDRESS WITH THE COURT AND WE ARE ASKING FOR A HEARING IN FACT ON THE DISCOVERY VIOLATION BEFORE WE START WITH THE COLLECTION WITNESSES.
I UNDERSTAND THERE IS A TAPE, THOUGH, THE TAPE THEY TURNED OVER. I THINK YOU SHOULD SEE IT.
ALL RIGHT. ALL RIGHT. AS FAR AS THIS ISSUE THEN, WE WILL STAND IN RECESS UNTIL 1:30. ALL RIGHT. THANK YOU, COUNSEL.
DNA EVIDENCE IS STATISTICAL AND YOU SHOULD NOT BE ABLE TO PRESENT THIS EVIDENCE WITHOUT STATISTICS. NOW, THE PROSECUTION HAS ALREADY DONE THAT IN THE OPENING STATEMENT WHERE MISS CLARK WENT ON SAYING HERE IS A BLOOD STAIN, MATCH. HERE IS A BLOOD STAIN, MATCH.
THAT IS FORENSIC AMBUSH, TRYING TO CHANGE THE TERRAIN OF HOW THIS CASE IS ARGUED BECAUSE THE FAILURE OF CONTROLS ON THE PCR TESTS IS MOST CLEARLY EVIDENT FROM THE INITIAL RESULTS THAT THEY GOT ON THE BRONCO.
AN INTERESTING THEORY.
THE JURY HAS TO BE INSTRUCTED ON EXACTLY WHAT IT IS AND WHAT IT ISN'T... THEY DO NOT REPRESENT THE FALSE POSITIVE ERROR RATE OF THE LABORATORY. THEY DO NOT REPRESENT A PROBABILITY ABOUT SAMPLE HANDLING MISTAKES... THEY DO NOT REPRESENT PROBABILITIES OF GUILT.
NOT THE TIME PROBLEMS. I ONLY HAVE ONE COURT REPORTER AND I WEAR THEM OUT AFTER A DAY.