(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:) THE COURT: ALL RIGHT. GOOD AFTERNOON, COUNSEL. BACK ON THE RECORD IN THE CONTINUING MOTION FROM YESTERDAY. WE HAVE MR. SIMPSON PRESENT WITH HIS COUNSEL, MR. BLASIER, MR. NEUFELD, MR. THOMPSON AND MR. SCHECK, PEOPLE REPRESENTED BY MR. CLARKE, MR. HARMON AND MISS KAHN. ALL RIGHT. MR. SCHECK, YOU HAD WOUND UP YOUR COMMENTS?
DO YOU WANT THE PROSECUTION TO RESPOND TO THIS OR DO YOU WANT US TO GO THROUGH EVERYTHING?
ON THE MOTION -- ON THE MOTION ON DEFENDANT'S OBJECTIONS, YOU HEARD THE WHOLE ARGUMENT.
THERE'S A SEPARATE MATTER OF THE PROSECUTION'S MOTION IN LIMINE TO RESTRICT OUR INQUIRY ON GENERAL ACCEPTANCE.
THANK YOU, YOUR HONOR. WITH REGARD TO THIS MOTION BY THE DEFENSE, I THINK THERE'S A NUMBER OF FACTORS THE COURT HAS TO TAKE INTO ACCOUNT. INITIALLY, TO A LARGE EXTENT, I BELIEVE MR. SCHECK MERGED TWO OF THE MOTIONS THAT ARE BEFORE THE COURT TODAY. HE HAD A GREAT DEAL OF DISCUSSION NOT ONLY ABOUT WHETHER OR NOT THE DEFENDANT'S RIGHT TO A FRYE HEARING SHOULD BASICALLY BE RESURRECTED AT THIS POINT IN TIME, AND HE ALSO INTERTWINED WITH THAT DISCUSSION NUMEROUS COMMENTS THAT INVOLVE CROSS-EXAMINATION OF THE PEOPLE'S WITNESSES; FOR INSTANCE, ABOUT DNA EVIDENCE AS WELL AS PROPER METHODS AND PROCEDURES, TO ACTUALLY WEAVE THAT CROSS-EXAMINATION WITH THE OPINIONS OF OTHER EXPERTS AND SO FORTH THAT MR. HARMON WILL ADDRESS IN SUBSEQUENT COMMENTS. I'M GOING TO RESTRICT MYSELF TO THE ACTUAL MOTION OR ACTUAL NOTICE OF OBJECTIONS AS THE WAY IT WAS CHARACTERIZED AND WHAT THIS COURT SHOULD DO IN OUR VIEW WITH RESPECT TO THAT PARTICULAR MOTION. THAT IS A MOTION. IT'S NOT A NOTICE OF OBJECTIONS. IT CLEARLY IS A MOTION BY THIS DEFENDANT TO HAVE THIS COURT CONVENE AN ADMISSIBILITY HEARING PURSUANT TO KELLY AND FRYE. THIS DEFENDANT SEEKS RELIEF FROM HIS JANUARY 4TH OF THIS YEAR WAIVER OF HIS RIGHT TO CHALLENGE DNA EVIDENCE AS SOUGHT TO BE INTRODUCED BY THE PEOPLE IN THIS PARTICULAR ACTION. WHILE THIS DEFENDANT'S ACTS YESTERDAY AND TODAY BY WAY OF THIS MOTION ARE UNDERSTANDABLE FROM THE FACTS OF THIS CASE AND THE NATURE OF THE DNA RESULTS THAT HAVE BEEN OBTAINED, THAT DOES NOT IN ANY MANNER CHANGE THE FACT THAT THIS EVIDENCE IS ADMISSIBLE; AND THIS EVIDENCE IS ADMISSIBLE BECAUSE OF THE VERY ACTS UNDERTAKEN BY THIS DEFENDANT PRIOR TO TODAY. AND I WANT TO GO THROUGH THOSE FACTS BECAUSE I THINK THEY ARE AT THE HEART OF THIS PARTICULAR MOTION, AND I'LL DO THAT IN JUST A MOMENT. BUT INITIALLY, I THINK IT'S IMPORTANT FOR THE COURT TO NOTE THE VERY --
I'M SORRY, MR. CLARKE. LET ME ASK -- FORGIVE ME FOR INTERRUPTING YOU. BUT THERE IS ONE OTHER STAFFING ISSUE. DOES ANYBODY HAVE NEED OF OUR EVIDENCE PRESENTATION SYSTEM FOR THE AFTERNOON? IF NOT, I'M GOING TO EXCUSE MISS FITZPATRICK FOR THE AFTERNOON.
THERE IS SOME POSSIBILITY IN THE COURSE OF MY COMMENTS, AND THEY'RE GOING TO BE REASONABLY BRIEF. SO IF IT WOULD BE ACCEPTABLE --
ALL RIGHT. VIDEOTAPE I CAN DO MYSELF BECAUSE I'VE GOT MY OWN SYSTEM. ALL RIGHT. MISS FITZPATRICK, YOU ARE EXCUSED.
VERY GOOD. AS FAR AS THE BROAD NATURE OF WHAT THIS DEFENDANT SEEKS BY THIS NOTICE OF OBJECTIONS, I THINK THE COURT CAN TAKE IN SUMMARY FASHION THAT THEY ADDRESS APPROXIMATELY SIX BROAD AREAS.
THOSE SIX AREAS INCLUDE A REQUEST THAT THIS COURT SITTING ALONE, WITHOUT A JURY, IN FACT CONDUCT A FRYE ADMISSIBILITY HEARING ABOUT WHAT THE DEFENSE CHARACTERIZES AS NEW RESULTS. THOSE RESULTS, AS THE DEFENSE NOTES, WERE, QUOTE, NEW RESULTS IF IN FACT THEY WERE RECEIVED BY THEM FOLLOWING THE JANUARY 4TH WAIVER BY THIS PARTICULAR DEFENDANT OF HIS RIGHT TO CHALLENGE ADMISSIBILITY. THE SECOND BROAD AREA IS A REQUEST BY THE DEFENDANT TO CONVENE IN THE PRESENCE OF THE JURY AGAIN, WHICH IS NOT A UNIQUE PROPOSAL BY THIS DEFENDANT, A FRYE HEARING APPLYING TO BOTH THE OLD RESULTS -- AND BY OLD, I MEAN THOSE RESULTS RELEASED TO BOTH PARTIES PRIOR TO JANUARY 4TH OF 1995 -- AS WELL AS THE, QUOTE, POST-NIGHT -- JANUARY 4TH RESULTS THAT ARE, FOR LACK OF A BETTER TERM, THE NEWER RESULTS. THE DEFENSE HAS ALSO ASKED THAT THIS COURT CONVENE A KELLY INQUIRY PURSUANT TO PRONG 3 OF PEOPLE VERSUS KELLY DEALING WITH WHETHER OR NOT CORRECT SCIENTIFIC PROCEDURES WERE USED AND TO IN FACT CONDUCT THAT HEARING OUTSIDE THE PRESENCE OF THE JURY. THE DEFENSE HAS ALSO SUGGESTED THAT THIS COURT MUST RULE ON HOW POPULATION FREQUENCY DATA MUST BE BOTH CALCULATED BY SCIENTISTS AS WELL AS PRESENTED TO A JURY; THE FACT THAT, AS THE DEFENSE ALLEGES, ERROR RATES MUST BE CHARACTERIZED IN A PARTICULAR FASHION AND IN FACT ALLEGEDLY INCORPORATED IN THE POPULATION FREQUENCIES AS EXPRESSED TO THE JURY VIA THE VARIOUS DNA EXPERTS THAT WILL TESTIFY AT THIS TRIAL; AND FINALLY, AND AGAIN, A BROAD AREA, LIMITATIONS ON HOW EXPERTS CAN CONVEY THE MEANING OF MIXED SAMPLES AND IN FACT HOW IT CAN BE CHARACTERIZED TO A JURY THAT MORE THAN ONE DONOR MAY HAVE BEEN OR WAS INVOLVED IN A PARTICULAR DNA SAMPLE AND HOW THAT FACT CAN BE CHARACTERIZED TO THE JURY MUST BE LITIGATED BEFORE THIS COURT SITTING ALONE. AS I MENTIONED A FEW MOMENTS AGO, AT THE HEART OF THIS MOTION IS WHAT OCCURRED PRIOR TO TODAY. AND THE COURT I THINK HAS TO GO BACK TO OCTOBER 4TH OF 1994 IN WHICH THE DEFENSE FILED A VERY EXTENSIVE MOTION TO EXCLUDE DNA EVIDENCE. THAT MOTION ATTACKED, FIRST OF ALL, THE PARTICULAR TECHNOLOGIES INVOLVED IN THIS CASE. THOSE PARTICULAR TECHNOLOGIES IN BROAD STROKES THE DEFENSE CHARACTERIZED AS NOT MEETING THE GENERAL ACCEPTANCE STANDARD OF PEOPLE VERSUS KELLY AND FRYE VERSUS THE UNITED STATES, AND IN FACT, IT WAS ALLEGED BY THE DEFENSE THAT NOT ONLY DID DNA TYPING NOT MEET THE GENERAL ACCEPTANCE STANDARD, BUT IN FACT, THE TWO PRIOR APPROACHES UTILIZED IN THIS CASE SUFFERED FROM AN ABSENCE OF GENERAL SCIENTIFIC ACCEPTANCE AT EACH OF THE MAJOR STEPS OF THOSE PARTICULAR PROCESSES. AND THAT INCLUDES BOTH THE RESTRICTION FRAGMENT LENGTH OR RFLP TESTING APPROACH AS WELL AS THE PCR TESTING APPROACH AS UTILIZED IN THIS CASE. IN ADDITION TO THAT, THE DEFENSE IN BROAD STROKES CHARACTERIZED WHAT IT BELIEVED TO BE A LACK OF GENERAL SCIENTIFIC ACCEPTANCE OF THE MANNER IN WHICH POPULATION FREQUENCY DATAS ARE BOTH CALCULATED BY TESTING LABORATORIES AS WELL AS EXPRESSED TO JURIES IN CRIMINAL CASES. THE SECOND BROAD AREA THAT THAT MOTION ATTACKED WAS THE ALLEGED FAILURE OF LABORATORIES IN THIS CASE TO USE PROPER TESTING PROCEDURES OR WHAT CAN I THINK BE SAFELY CHARACTERIZED AS THE THIRD PRONG OF OUR KELLY INQUIRY IN THE STATE OF CALIFORNIA. THE THIRD MAJOR AREA WAS AN ALLEGATION THAT UNDER EVIDENCE CODE SECTION 352, THAT THIS EVIDENCE, EVEN IF OTHERWISE ADMISSIBLE PURSUANT TO FRYE AND KELLY, NONETHELESS SHOULD BE EXCLUDED BY THIS COURT FROM CONSIDERATION BY THE JURY BECAUSE OF THE EXCESS OF ITS PREJUDICIAL AFFECT WHEN COMPARED TO ITS RELEVANT AND PROBATIVE VALUE BEFORE THE JURY. AND THEN FINALLY, THE DEFENSE ALLEGED UNDER PEOPLE VERSUS GRIFFEN THAT DUE TO SUPPOSED FAILURE OF EACH OF THE TESTING LABORATORIES TO UTILIZE PROPER COLLECTION TECHNIQUES IN TERMS OF EVIDENCE COLLECTION HANDLING AND PROCESSING, THAT THIS COURT SHOULD THEREFORE PRECLUDE ADMISSION OF DNA TESTING RESULTS AS WELL.
THE NEXT SIGNIFICANT ACT THAT OCCURRED WITH ONE EXCEPTION THAT I'LL ADDRESS A LITTLE BIT LATER WAS ON DECEMBER 13TH OF 1994 IN WHICH, AS THIS COURT IS FULLY AWARE, THE DEFENSE PROPOSED TO THIS COURT A NOVEL PROCEEDING IN WHICH THE COURT WOULD ALLOW THIS DNA EVIDENCE TO BE HEARD BY THE JURY, BUT THE COURT WOULD CONDUCT A CONCURRENT OR SIMULTANEOUS FRYE HEARING AT WHICH THE DEFENSE WOULD, WHILE RUNNING THE RISK THAT A JURY MIGHT HEAR EVIDENCE OF DNA TYPING RESULTS AND MATCHES AND FURTHER, THAT THE DEFENSE WAS WILLING TO TAKE THAT RISK AND THEN HAVE THE COURT INSTRUCT THE JURY, IF NECESSARY, THAT THEY WERE TO DISREGARD THE EVIDENCE OF DNA TYPING RESULTS THAT THEY HEARD. THIS COURT RAPIDLY DENIED THAT AND IN FACT IN DECEMBER, SET THIS CASE FOR A FRYE HEARING ON JANUARY 5TH OF THIS YEAR. IMMEDIATELY PRIOR TO THAT DAY AND IN FACT IN A MOTION DATED JANUARY 3RD, 1995, THE DEFENSE FILED ITS NOTICE OF WITHDRAWAL OF ITS MOTION TO EXCLUDE DNA EVIDENCE IN THIS CASE. IN THAT MOTION, THE DEFENSE SPECIFICALLY STATED ITS INTENT TO GIVE UP THAT RIGHT TO AN ADMISSIBILITY HEARING AND TO IN FACT CHALLENGE THE WEIGHT OF THIS EVIDENCE BEFORE THE JURY, TO CHALLENGE THE WEIGHT OF THAT EVIDENCE BEFORE THE JURY AS TO THE RELIABILITY OF THE TESTING PROCEDURES THAT WERE UTILIZED, TO CHALLENGE THE WEIGHT OF THAT EVIDENCE AS FAR AS STATISTICAL FREQUENCIES OR POPULATION FREQUENCY DATA AND WHAT WEIGHT THE JURY SHOULD GIVE TO THAT EVIDENCE, AND IN FACT A CHALLENGE BEFORE THE JURY THE SPECIFIC TECHNIQUES THAT WERE USED IN THIS PARTICULAR CASE. THE METHODS THAT THE DEFENSE SUGGESTED IN THAT MOTION BY WHICH THEY WOULD CHALLENGE THAT EVIDENCE, AND AGAIN IN FRONT OF THE JURY, WERE CROSS-EXAMINATION, WHICH SPECIFICALLY STATED TO BE ONE OF THE GREATEST AREAS THAT THE DEFENSE INTENDED TO UTILIZED TO CHALLENGE THE WEIGHT AGAIN THAT THIS JURY SHOULD GIVE THAT EVIDENCE, AS WELL AS TO PRESENT DEFENSE EVIDENCE AS TO WHY THE PARTICULAR RESULTS IN THIS CASE SHOULD NOT BE BELIEVED BY THE JURY. FINALLY, THE DEFENSE STATED THAT THEY WOULD UTILIZE ANY APPROPRIATE MEANS IN FRONT OF THE JURY TO AGAIN CHALLENGE THE WEIGHT OF THE PARTICULAR EVIDENCE PRESENTED BY THE PROSECUTION'S DNA EXPERTS. IN THE COURSE OF THE HEARING ON THAT WITHDRAWAL, IN THE COURSE OF THE HEARING ON THAT WAIVER, THE COURT AND COUNSEL WERE BOTH PRESENTED WITH A SERIES OF PROPOSED QUESTIONS TO BE ASKED OF THE DEFENDANT TO INSURE THE DEFENDANT'S REALIZATION OF WHAT HE WAS GIVING UP, WHAT RIGHT HE WAS WAIVING AS A RESULT OF WITHDRAWING THAT INITIAL MOTION TO EXCLUDE. AND IN THE COURSE OF THAT HEARING, AS THE COURT I'M SURE IS FAMILIAR, NOT ONLY DID COUNSEL FOR MR. SIMPSON WAIVE THE RIGHT TO ANY HEARING ON THAT MOTION TO EXCLUDE EVIDENCE AND WAIVED THE MOTION ITSELF, BUT THE DEFENDANT PERSONALLY WAIVED THAT RIGHT AS WELL. AND FORTUNATELY, A VIDEOTAPE CAPTURED THAT ENTIRE EIGHT MINUTES IN WHICH THE COURT ASKED QUESTIONS OF COUNSEL, ASKED QUESTIONS OF THE DEFENDANT HIMSELF AND IN FACT INSURED THAT WHAT THE DEFENDANT WAS GIVING UP WAS CLEAR TO THE DEFENDANT, HIS COUNSEL AND IN FACT ALL THE PARTIES TO THIS ACTION. THE SIGNIFICANCE OF THAT ACT WAS TO ALLOW THE ADMISSION OF DNA EVIDENCE IN TOTAL BECAUSE THE DEFENDANT GAVE UP THAT RIGHT TO CHALLENGE UNDER FRYE AND UNDER KELLY AND UNDER ANY OF THE THREE PRONGS OF KELLY ADMISSIBILITY OF THE EVIDENCE. AND IN FACT, I THINK THAT'S THE KEY ACT ITSELF. THE DEFENDANT BY THIS MOTION OR BY THIS NOTICE OF OBJECTIONS FILED LAST WEEK ATTEMPTS TO DISAVOW HIS OWN ACTS IN GIVING UP THAT RIGHT ON JANUARY 4TH OF 1995. AND IN FACT, YESTERDAY, THE DEFENSE HAS SOUGHT TO CONVINCE THIS COURT THAT ITS INITIAL PROPOSAL OR PROPOSAL IN DECEMBER OF LAST YEAR TO CONVENE THIS HEARING IN FRONT OF THE JURY SHOULD AGAIN BE AUTHORIZED BY THIS COURT. AND I THINK THE COURT SHOULD BE AWARE AND CERTAINLY IS AWARE THAT IT'S SIMPLY AN ATTEMPT TO RAISE WHAT WAS GIVEN UP BEFORE.
NOW, BRIEFLY, WHAT DOES THE CURRENT NOTICE OF OBJECTIONS DO? IT REALLY ADDRESSES FOUR MAJOR AREAS, ONE OF WHICH I'VE ALREADY SPOKEN ABOUT. IT'S AN ATTEMPT TO RESURRECT THE SAME CLAIMS THAT WERE MADE IN THE OCTOBER 4TH, 1994 MOTION TO EXCLUDE. THE DEFENDANT CLAIMS -- AND THIS IS THE SECOND MAJOR AREA OF THE NEW MOTION -- THAT HE DIDN'T EVEN KNOW THE PROCEDURES THAT WERE USED AS FAR AS TESTING IN THIS CASE UNTIL HE WAS PROVIDED RAW DATA AS RECENTLY AS JANUARY OF THIS YEAR BASED ON TESTING, FOR INSTANCE, CONDUCTED BY THE CALIFORNIA DEPARTMENT OF JUSTICE. HE RENEWS HIS ARGUMENT UNDER EVIDENCE CODE SECTION 403 THAT IN FACT THIS IS REALLY NOT A HEARING UNDER PEOPLE VERSUS KELLY OR FRYE OR VERSUS THE UNITED STATES AND THAT IN FACT IT'S A FOUNDATIONAL OR PRELIMINARY FACT HEARING UNDER OUR EVIDENCE CODE SCHEME IN CALIFORNIA. AND LASTLY, THE DEFENDANT CONTAINS THAT THE LANDSCAPE IS DIFFERENT; THAT BECAUSE MORE TESTING HAS OCCURRED, THE SITUATION IS DIFFERENT AND THE COURT SHOULD TAKE A DIFFERENT COURSE FROM THAT ADOPTED BY THIS COURT IN DECEMBER OF 1994 AND AS SET BY THIS COURT AS A RESULT OF THE DEFENDANT'S WAIVER IN JANUARY.
WELL, ALL OF THOSE CLAIMS ARE WITHOUT MERIT. THE FIRST I'VE ALREADY DISCUSSED. THE SAME ARGUMENTS IN THE MOTION BEFORE THIS COURT FILED LAST WEEK ARE THE SAME ARGUMENTS THAT WERE BEFORE THIS COURT IN THE MOTION TO EXCLUDE IN OCTOBER THAT WAS SPECIFICALLY WITHDRAWN BY THIS DEFENDANT ON JANUARY 4TH OF THIS YEAR. THE CLAIM THAT THE DEFENDANT HAD NO OPPORTUNITY TO KNOW THE PROCEDURES USED IN TESTING IN THIS CASE -- AND I'M REFERRING TO DNA TESTING -- AT THE TIME OF HIS JANUARY 4TH WAIVER IS TOTALLY BELIED BY THE FACTS OF THIS CASE. THE PROTOCOLS, THE PROCEDURES MANUALS UTILIZED BY NOT ONLY THE LOS ANGELES POLICE DEPARTMENT, BUT ALSO CELLMARK DIAGNOSTICS AND THE DEPARTMENT OF JUSTICE WERE PROVIDED MONTHS AGO TO THIS DEFENDANT AND IN FACT IN THE APPROXIMATELY LATE SUMMER, EARLY FALL OF 1994. AS OF THE TIME OF THAT JANUARY 4TH WAIVER, THE DEFENDANT HAD BEEN PROVIDED EXTENSIVE RAW DATA BY BOTH THE LOS ANGELES POLICE DEPARTMENT AND CELLMARK DIAGNOSTICS SETTING FORTH THE ACTUAL TESTING PROCEDURES AND DETAILED NOTES ABOUT WHAT OCCURRED IN THIS PARTICULAR CASE. AS TO THE DEPARTMENT OF JUSTICE, I THINK THE CIRCUMSTANCES ARE EVEN MORE COMPELLING. DR. BLAKE, AS THE COURT HAS BEEN MADE AWARE ON MANY OCCASIONS, CAREFULLY MONITORS WHAT GOES ON AT THE DEPARTMENT OF JUSTICE IN TERMS OF TESTING IN THIS CASE, AND TO SOMEHOW AVOW THAT THE DEFENSE WAS NOT ABLE TO LEARN ABOUT TESTING PROCEDURES AT DOJ PRIOR TO JANUARY 4TH I THINK IS EXTREMELY SUSPECT. PARTICULARLY PERTINENT TO THE DEPARTMENT OF JUSTICE IS THE FACT THAT ON THAT DATE OF JANUARY 4TH, WHEN THE DEFENDANT WAIVED HIS RIGHT TO AN ADMISSIBILITY HEARING, IT WAS CLEAR THAT THE REPORT AND RAW DATA FROM DOJ WERE EMINENT AND IN FACT WERE EXPECTED BY ALL PARTIES TO EITHER ARRIVE ON THAT DAY OR THE NEXT DAY. AND IN FACT, THIS DEFENDANT DIDN'T EVEN ASK THIS COURT FOR ONE MORE DAY TO IN FACT RECEIVE THAT MATERIAL BEFORE IT MADE THE MAJOR STEP OF WITHDRAWING THE MOTION BEFORE THIS COURT FILED IN OCTOBER. I'M NOT GOING TO REITERATE THE ARGUMENTS ABOUT EVIDENCE CODE SECTION 403 BECAUSE I'M SURE THE COURT IS AWARE THAT WAS BRIEFED AND ARGUED TO THE COURT OSTENSIBLY BACK IN DECEMBER WHEN THE DEFENDANT'S PROPOSAL FOR A MODIFIED TYPE HEARING WAS BEFORE THIS COURT. SUFFICE IT TO SAY, 403 IS INAPPLICABLE IN THE STATE OF CALIFORNIA AS TO DNA EVIDENCE BECAUSE KELLY, AS WE KNOW FROM THE CASES CITED IN OUR RESPONDING PAPERS, IS THE EXCLUSIVE MEANS IN CALIFORNIA OF DETERMINING THE ADMISSIBILITY OF NEW OR NOVEL SCIENTIFIC EVIDENCE AS STATED BY OUR SUPREME COURT IN BOTH IN RE HARRIS AS WELL AS THE MORE RECENT PEOPLE VERSUS LEAHY. TO SOMEHOW ATTEMPT TO PARLAY A QUESTION OF FACT AND LAW, A MIXED QUESTION OF FACT AND LAW TO BE MADE BY THE COURT INTO A JURY DETERMINATION AS WAS NOTED BACK IN DECEMBER I THINK IS CLEARLY CONTRADICTORY AND FRANKLY IT MAKES NO SENSE WHATSOEVER. THE LAST ARGUMENT RAISED BY THIS DEFENDANT IN THE COURSE OF THIS MOTION I THINK IS THE MOST MYSTERIOUS ARGUMENT. AND IN FACT, IN THIS MOTION, THE DEFENSE CLAIMS THAT TESTING FOR WHICH RESULTS WERE PROVIDED AFTER JANUARY 4TH, 1994 AND IN FACT TESTING THAT OCCURRED AFTER JANUARY 4TH, 1994 INVOLVES NOVEL PROCEDURES. I THINK THAT'S EXACTLY THE WAY THE DEFENSE CHARACTERIZED IT. THE TRUTH IS, THE SAME TESTING PROCEDURES HAD BEEN USED AFTER JANUARY 4TH AS WERE THE TESTING PROCEDURES UTILIZED BY THE LABORATORIES IN THIS CASE PRIOR TO JANUARY 4TH, AND THE COURT SPECIFICALLY AUTHORIZED TESTING TO CONTINUE. THIS COURT REFUSED THE DEFENSE DEMAND FOR A CUT-OFF DATE. SO THE FACT THAT FURTHER TESTING OCCURRED WHICH CERTAINLY COMPLIES WITH CALIFORNIA LAW, THE FACT THAT THAT TESTING OCCURRED AND PRODUCED RESULTS WAS NO SURPRISE TO ANYONE BECAUSE THIS COURT SPECIFICALLY AUTHORIZED THAT PARTICULAR PROCEDURE. IN THAT VEIN AND PERHAPS WHAT MAKES THIS ARGUMENT SO CURIOUS I THINK IS THE FACT THAT WHEN THIS COURT HAD BEEN PRESENTED WITH THE ORIGINAL MOTION TO EXCLUDE EVIDENCE, THIS COURT RECEIVED A LETTER FROM THE DEFENSE DATED OCTOBER 18TH AND I BELIEVE SIGNED BY MR. NEUFELD; AND IN THAT LETTER, THE DEFENSE SPECIFICALLY STATED SINCE THE KELLY ISSUES ARE LIMITED TO METHODS AND PROCEDURES, DISCLOSURE OF THE ACTUAL TEST RESULTS IS NOT REQUIRED. THE CLAIM TODAY IN THIS CURRENT MOTION CONTRADICTS THE EARLIER CLAIM ABOUT RESULTS AND IT CONTRADICTS WHAT EXACTLY THE DEFENSE CLAIM IS ABOUT WHAT PRONG 3 IS. AS THIS COURT IS WELL AWARE FROM EXTENSIVE PLEADING FILED IN THE FALL OF LAST YEAR BY THE PEOPLE, RESULTS AREN'T RELEVANT TO THE DETERMINATION OF THE USE OF CORRECT SCIENTIFIC PROCEDURES UNDER PRONG 3. SO I THINK FOR THE DEFENSE TO BE CLAIMING ANYTHING WHICH CONTRADICTS THAT EARLIER LETTER OF OCTOBER RENDERS THE CLAIM TODAY PARTICULARLY WITHOUT MERIT. THIS DEFENDANT KNOWINGLY WAIVED HIS RIGHT TO CHALLENGE EVIDENCE IN TERMS OF DNA RESULTS IN THEIR ADMISSIBILITY ON JANUARY 4TH OF THIS YEAR. THAT DECISION WAS A TACTICAL DECISION. IT WAS MADE AFTER CONSULTATION WITH HIS ATTORNEYS, AND IN FACT, IT WAS PERSONALLY WAIVED BY THIS DEFENDANT IN COURT. THIS DEFENDANT HAS NEVER BEEN FORCED TO CHOOSE AMONGST RIGHTS. HE HAS CONTROLLED THE TIMING OF THIS CASE IN TERMS OF THE BEGINNING OF TRIAL AND THE CONTINUATION OF TRIAL WITHIN THE MEANING OF THE SIXTH AMENDMENT AND THE RIGHT TO SPEEDY TRIAL. THIS IS AN 11TH HOUR ATTEMPT TO STALL TRIAL AND I DON'T THINK IT CAN BE CHARACTERIZED IN ANY OTHER FASHION. AND I THINK WHEN THE COURT INCORPORATES, AND I'M CONFIDENT WHEN THE COURT INCORPORATES THAT THIS LATE ATTEMPT IS DESIGNED TO STALL THIS TRIAL, THAT WHEN THE COURT WEIGHS THAT FACT AGAINST THE PEOPLE'S RIGHT TO DUE PROCESS UNDER THE CALIFORNIA CONSTITUTION, THAT THE COURT SHOULD DENY IN TOTAL THIS PARTICULAR NOTICE OF OBJECTIONS AND ANY ATTEMPT BY THIS DEFENDANT TO FORCE THIS COURT TO CONVENE THE ADMISSIBILITY HEARING THAT MR. SIMPSON PERSONALLY GAVE UP ON JANUARY 4TH OF THIS YEAR. THANK YOU, YOUR HONOR.
THIS MOTION IS NOT AN EFFORT TO STALL THE TRIAL AND I THINK THAT MR. CLARKE HAS MISUNDERSTOOD WHAT WE'RE SUGGESTING TO THE COURT. LET ME BE SPECIFIC. AS TO THE CHART THAT WE INTRODUCED YESTERDAY IN THE MOTION THAT WE SUBMITTED -- AND I'M PUTTING ASIDE NOW THE FIRST PRONG OF KELLY-FRYE. WE'RE TALKING ABOUT THIRD PRONG OBJECTIONS, THIRD PRONG AS INTERPRETED BY THE DECISIONS IN BARNEY AND WALLACE AND PIZARRO, WHICH IS NOT THE INTERPRETATION THAT MR. CLARK AND MR. HARMON HAVE URGED UPON THIS COURT AND HAVE URGED UPON THOSE COURTS IN OTHER LITIGATION, WHERE THEY SAY THE ACTUAL RESULTS AND THE ACTUAL WAY THE TESTS ARE PERFORMED HAVE NO RELEVANCE TO PRONG 3. THAT ARGUMENT WAS REJECTED IN BARNEY, IT WAS REJECTED IN PIZARRO, IT WAS REJECTED IN WALLACE, AND THE CALIFORNIA SUPREME COURT IN THE LEAHY DECISION SPECIFICALLY SAID IN RESPONSE TO MR. HARMON'S BRIEF THAT THEY'RE NOT GOING TO ENTERTAIN THAT ARGUMENT EITHER. SO I THINK THAT OUR INTERPRETATION THAT PRONG 3 HAS TO DO WITH THE WAY THE ACTUAL TESTS ARE PERFORMED, WHETHER, FOR EXAMPLE, CONTROLS FAILED SUCH THAT THE TEST RESULTS ARE NOT RELIABLE ENOUGH AND SHOULD BE STRUCK FROM EVIDENCE, IS A QUESTION THAT I THINK THIS COURT HAS TO CONSIDER AS THE TEST RESULTS COME IN. LET'S BE VERY, VERY CLEAR AS I TRIED TO BE YESTERDAY. AND THAT IS -- IN TERMS OF JUST LAYING IT OUT. AND THAT IS, WE'RE ONLY ASKING THIS COURT -- IT GETS ME NERVOUS WHEN YOU SMILE LIKE THAT. THE FIRST TWO ISSUES HAVING TO DO WITH STATISTICS AND THE WAY THEY'RE PRESENTED TO THE JURY AND THE NEED TO PRESENT DNA IN THE FORM OF STATISTICS AND THE INSTRUCTIONS THAT WE'RE ASKING THE COURT TO CONSIDER ON THAT SCORE, MR. CLARKE NEVER RESPONDS TO IT. THEY SEEM TO BE INSISTING BY HIS SILENCE THAT THEY'RE ENTITLED TO INTRODUCE THIS EVIDENCE WITHOUT STATISTICS. HE DOESN'T EVEN RESPOND TO THE POINT. I THINK THAT'S JUST PLAINLY WRONG. THAT'S THE ONLY ISSUE WE WANT YOU TO DECIDE RIGHT AWAY. THE ONLY OTHER ISSUES AS TO WHETHER OR NOT THE TESTS WERE PERFORMED CORRECTLY, WHETHER THEY'RE RELIABLE ENOUGH TO BE CONSIDERED EVENTUALLY IN THE END BY THE JURY, WHETHER PRONG 3 HAS BEEN VIOLATED, WHETHER SPECIFIC THINGS MENTIONED IN BARNEY AND WALLACE HAVE BEEN VIOLATED, WHETHER THE COLLINS AND CELLA ARGUMENTS APPLY, AND MOST IMPORTANTLY, WHETHER 352 APPLIES TO THE WAY THE STATISTICS ARE PRESENTED AND THE WAY THE EVIDENCE ARE PRESENTED, WE THINK ALL THOSE ARGUMENTS PLAINLY SHOULD BE HEARD BY THE COURT AFTER YOU HEAR THE TESTIMONY FROM THE PROSECUTION WITNESSES THAT ARE CROSS-EXAMINED AND YOU HEAR TESTIMONY FROM DEFENSE WITNESSES. THEN AT THE END, YOU CAN MAKE A DETERMINATION. I THINK THAT'S THE ONLY SENSIBLE WAY YOU COULD MAKE A DETERMINATION AS TO WHETHER OR NOT SOME OR ALL OR ANY OF THESE DNA TEST RESULTS SHOULD BE HEARD BY THE JURY. THAT'S WHAT WE'RE PROPOSING WITH RESPECT TO ALL THESE NON-PRONG 1 OBJECTIONS. SO IT'S NO ATTEMPT IN THAT REGARD TO DELAY THE TRIAL AT ALL. I THINK THAT IN MR. CLARKE'S RECITATION OF THE HISTORY OF HOW THESE HEARINGS WERE SCHEDULED AND NOT SCHEDULED, I THINK HE'S LEAVING OUT A LOT.
AS I'M SURE THE COURT RECALLS, THESE DNA HEARINGS WERE SCHEDULED BEFORE JURY SELECTION. IN THE MIDDLE OF JURY SELECTION, PROPOSALS WERE MADE BY THE COURT -- MADE BY COUNSEL TO THE COURT, AND THE COURT INDICATED SOME DESIRE TO PURSUE IT, THAT WE HAVE LIMITED NUMBER OF WITNESSES. WE ASKED FOR, ON BOTH SIDES, THAT YOU ENTERTAIN TRANSCRIPTS FROM OTHER WITNESSES FROM PRIOR PROCEEDINGS, TAKE JUDICIAL NOTICE OF THOSE, THAT WE SEGREGATE THE ISSUES, THAT WE DO IT IN AN ORGANIZED, QUICK WAY, THAT WE TRY TO TAKE CARE OF THIS IN TWO OR THREE WEEKS. THE PROSECUTION RESISTED ALL OF THAT AND INSISTED UPON CALLING 22 WITNESSES. SO IF ANYBODY WANTED A DELAY AT THAT POINT, IT WAS THEM. WE AT ONE POINT -- AND THIS IS WHAT'S SO FASCINATING. THE PROSECUTION ACTUALLY HAD SUGGESTED, WELL, WE CAN HOLD A KELLY HEARING ONLY ON PRONG 1 ISSUES AND THEN THE PRONG 3 ISSUES CAN BE ENTERTAINED AT TRIAL. SO AT ONE POINT, THEY EVEN MADE THAT PROPOSAL AS WE WERE GOING BACK AND FORTH ON THE SCHEDULING OF THIS DURING JURY SELECTION. WHAT MR. CLARKE JUST DOESN'T RESPOND TO AND IS THE ESSENTIAL THRUST HERE, IS THAT IN OUR MOTION TO WITHDRAW, WE DO NOT WAIVE OUR RIGHT TO ATTACK THE RELIABILITY OF THE EVIDENCE AND PERHAPS HAVE THIS COURT ULTIMATELY RULE THAT SOME OR ALL OF IT SHOULD NOT BE CONSIDERED BY THE JURY IN THE END BECAUSE OF THE WAY THE TESTS WERE PERFORMED, WHETHER THEY USED CORRECT PROCEDURES AND CERTAINLY 352 OBJECTIONS AND OBJECTIONS UNDER CELLA AND COLLINS AS WE LAY OUT IN OUR ARGUMENTS. THAT'S ALL WE'RE ASKING YOU TO DO. I DON'T THINK IT WOULD REALLY BE POSSIBLE TO MAKE A SENSIBLE DECISION ON THOSE OBJECTIONS WITHOUT HEARING THE EVIDENCE. BUT ON THAT FIRST POINT, WHICH THEY DON'T RESPOND TO, WHICH I FIND QUITE DISTURBING, THAT THIS EVIDENCE MUST BE PRESENTED WITH STATISTICS, AND OUR FURTHER SUGGESTION, IF YOU AGREE WITH US ON THAT POINT -- AND I THINK IT'S THE HOLDING OF BARNEY, IT'S WHAT THE NATIONAL RESEARCH COUNSEL HAS SUGGESTED, I THINK IT'S THE OVERWHELMING WEIGHT OF SENSIBLE PRECEDENT WHETHER YOU'RE IN A FRYE OR DAUBER JURISDICTION THAT THE EVIDENCE IS STATISTICAL -- THAT THE COURT FURTHER INSTRUCT AND WE WILL PRESENT ON A SUGGESTION TO YOU IF YOU AGREE WITH THIS FIRST POINT AS TO, THESE ARE JUST GENE FREQUENCIES AND THERE ARE OTHER PROBABILITIES THAT AFFECT THE WEIGHT OF THE EVIDENCE THAT YOU SHOULD CONSIDER ABOUT ERROR RATES IN THE LABORATORY, ERRORS IN THE LABORATORY, ERRORS IN THE COLLECTION OR EVEN THE PROBABILITY THAT THE EVIDENCE WAS TAMPERED WITH. AND THESE ARE THINGS THAT I THINK THE JURY HAS TO KNOW IN ORDER TO FAIRLY EVALUATE THE EVIDENCE SO THAT THEY DON'T THINK THAT THIS ASTRONOMICAL STATISTIC THEY'RE GOING TO HEAR IS A PROBABILITY OF GUILT OR PROBABILITY THAT MR. SIMPSON IS DEFINITELY THE SOURCE OF THE BLOOD DROP IN THE DRIVEWAY AND ALL OTHER WAYS THAT THESE THINGS CAN BE CONFLATED, PARTICULARLY SINCE OF THE TREMENDOUS DANGER THERE IS OF JURORS EVALUATING STATISTICS, LAY PEOPLE EVALUATING STATISTICS, WHICH CAN BE VERY MISLEADING. THAT'S THE 352 ARGUMENT. IT'S A PRONG 3 ARGUMENT. IT'S THE ONLY ONE THAT WE REALLY WANT YOU TO RESOLVE NOW OR WE THINK YOU CAN. AS FAR AS THIS NOTION THAT WE WOULD REALLY HAVE KNOWN EXACTLY WHAT HAD BEEN DONE AT DOJ BECAUSE DR. BLAKE WENT THERE AND TOOK PICTURES OF THE GELS AND WAS MONITORING WHAT MR. SIMS WAS DOING, BEFORE WE LOOK AT HIS RESULTS, BEFORE WE LOOK AT HIS RAW NOTES, BEFORE ALL OF THAT IS EVALUATED AND WE SEE WHAT HE ACTUALLY IS INTERPRETING THINGS AS AND BEFORE FRANKLY WE EVEN HEAR HIM TESTIFY AS TO WHAT THE MEANING OF CERTAIN RESULTS ARE, WE CAN'T LODGE OUR OBJECTION SPECIFICALLY AND PROPERLY AS TO WHERE WE THINK THE EVIDENCE IS FATALLY UNRELIABLE. NOW, THAT COULD HAPPEN OBVIOUSLY OUTSIDE THE PRESENCE OF THE JURY, BUT WE'RE NOT SUGGESTING THAT. IT SHOULD HAPPEN IN THE PRESENCE OF THE JURY AND THEN WE LODGE OUR OBJECTION UNDER PRONG 3. WE'RE NOT ASKING FOR A PRONG 3 DETERMINATION OUTSIDE THE PRESENCE OF THE JURY TO DELAY THE TRIAL. WE'RE NOT ASKING FOR THAT. FINALLY, WITH RESPECT TO THE ISSUE OF PRONG 1 ON THE NEW TEST RESULTS, I'M NOT GOING TO -- I THINK THE RECORD IS CLEAR ABOUT THE NATURE OF THE WITHDRAWAL AND WHAT HAPPENED ON THE RECORD, AND THE COURT NOTED ITSELF THAT MR. SIMPSON WAS SAYING THAT HE UNDERSTOOD WHAT WAS GOING ON, HE HAD BEEN ADVISED BY HIS COUNSEL AS TO WHAT THE LEGAL RAMIFICATIONS OF ALL THIS WAS, BUT WITH RESPECT TO WHAT HE WAS AUTHORIZING AND WHAT HE WAS TALKING ABOUT, HE WAS SAYING, "I UNDERSTAND AND I -- THE WITHDRAWAL OF THE MOTION AS SET FORTH BY MY LAWYERS," AND THAT'S WHAT HE DID, AND THE COURT NOTED THAT FOR THE RECORD. SO I DON'T THINK THAT YOU CAN GET ANY KIND OF BLANKET WAIVER OUT OF HIS STATEMENT. IT DOESN'T MAKE ANY SENSE. NOBODY -- WE WITHDREW THE MOTION. WE WAIVED AN OUTSIDE THE PRESENCE OF THE JURY HEARING ON PRONG 1 FOR SURE. WE WERE NOT WAIVING, DIDN'T INTEND TO WAIVE -- I THINK IT WAS CLEAR TO THE COURT EVEN WHEN WE DID IT WE WOULD BE REVISITING THIS THIRD PRONG CHALLENGES, 352 CHALLENGES, THE CHALLENGES THAT WE'VE LAID OUT. NOW, WITH RESPECT TO THE NEW TEST RESULTS AND PRONG 1, I THINK FOR THE REASONS I STATED YESTERDAY AND THE WAY THE TESTING WAS PERFORMED STRATEGICALLY THAT -- AND THE WHOLE WAY THAT THIS LITIGATION HAS EVOLVED, THAT WE'RE ENTITLED TO A PRONG 1 HEARING OUTSIDE THE PRESENCE OF THE JURY ON THESE NEW RESULTS. WE'RE ENTITLED TO IT. IF WE'RE ENTITLED TO THAT, WHAT WE SHOULD CERTAINLY BE ENTITLED TO IS THE ALTERNATIVE WE PROPOSED TO THE COURT. AND THAT IS THAT WE DO THIS IN THE SAME FASHION AND FORM THAT WE SUGGESTED TO THE COURT IN DECEMBER; AND THAT IS WE PROCEED WITH THE TRIAL JUST AS IT'S SUPPOSED TO OCCUR, JUST AS THE PROSECUTION HAS PLANNED. THEY PRESENT THEIR WITNESSES. IF THEY FEEL THAT THEY HAVE TO CALL OTHER WITNESSES OUTSIDE THE PRESENCE OF THE JURY ON SOME OTHER DAYS TO BUILD FOUNDATION, THEY CAN DO SO, AND WE WILL PRESENT OUR WITNESSES IN THE DEFENSE CASE; AND THEN AT THE END, THE COURT CAN DECIDE. WHAT WE'RE -- THAT ALTERNATIVE WAIVES THE PREJUDICE THAT A DEFENDANT WOULD OTHERWISE SUFFER IF THE RESULTS WERE HEARD BY THE JURY AND THEN THE COURT ULTIMATELY STRUCK THEM. SO WE THINK WE'RE ENTITLED TO THE HEARING, BUT WE WOULD PROPOSE TO THE COURT THE ALTERNATIVE. IF THE COURT DOESN'T ACCEPT THE ALTERNATIVE, I MEAN WE HAVE NO CHOICE BUT TO ASK FOR THE HEARING. BUT IT'S THE ALTERNATIVE THAT OBVIOUSLY WE'RE INTERESTED IN HERE.
THE WAY WE THINK ABOUT THIS, I THINK THE NEXT ORDER OF BUSINESS IS MR. HARMON'S MOTION TO WHICH MR. THOMPSON WILL RESPOND.
THANK YOU, YOUR HONOR. SOUNDS LIKE "RELIABLE" HAS A LOT OF DIFFERENT MEANINGS DEPENDING ON WHEN YOU SAY IT AND WHAT YOU INTEND TO COMMUNICATE AND WHAT YOU REALLY MEAN BY IT. CLEARLY UNDER CALIFORNIA LAW IN THESE AREAS, IT HAS TWO DIFFERENT MEANINGS, AND I'VE LAID THEM OUT IN MY MOTION BECAUSE THEY HAVE PROFOUND SIGNIFICANCE. AND EVEN ON THIS MOTION, IT MIGHT BE HELPFUL TO WATCH THE JANUARY 4TH PROCEEDINGS TO SEE HOW WORDS WERE BEING USED TO MEAN OTHER THAN WHAT WAS PATENTLY OBVIOUS TO EVERYBODY IN THE ROOM, BECAUSE ONE CAN'T LOOK AT THAT TAPE AND NOT REALIZE THAT THESE DISCUSSIONS WERE INEVITABLE. IT WAS AN OPPORTUNITY TO FINALLY RESOLVE IT. BUT THAT'S NOT WHAT PEOPLE HAD IN MIND. SO RELIABILITY IN THE TWO CONTEXTS -- AND THE JANUARY 4 CONTEXT, THE RELIABILITY THAT WAS AT ISSUE CLEARLY HAS TO DO WITH WHAT PEOPLE THINK ABOUT THE METHODS THAT ARE USED. IT CLEARLY UNDER CALIFORNIA CASE LAW, THAT RELIABILITY CAN BE DEMONSTRATED, AND THE ONLY PRACTICAL WAY TO DEMONSTRATE IT IS BY HEARSAY TESTIMONY OR HEARSAY OPINIONS FROM OTHER PEOPLE, ARTICLES, THINGS LIKE THAT. BUT THAT RELIABILITY CHANGES ONCE THE COURT MAKES THE FINDING, THE MIXED QUESTION OF LAW AND FACT INTO A STRAIGHT FINDING OF FACT BY A JURY.
IN A JURY TRIAL, THE FACT FINDER, WHICH IS WHAT WE CALL THEM -- WE DON'T CALL THEM THE MIXED QUESTION OF LAW AND FACT FINDER. THOSE PEOPLE ARE FACT FINDERS. THEY DON'T ACTUALLY FIND SPECIFIC FACTS. THEY DECIDE WHETHER SOMETHING'S BEEN PROVEN BEYOND A REASONABLE DOUBT. BUT "RELIABILITY" IN THAT CONTEXT SIMPLY MEANS, DO THE TEST WORK, NOT DO OTHER FACELESS INVISIBLE PEOPLE WHO'VE NEVER WRITTEN SCIENTIFIC ARTICLES, DO THEY THINK IT WORKS OR DO THEY HAVE QUALIFIED RESERVATIONS ABOUT IT THAT THEY WRITE TO THE NATIONAL ASSOCIATION OR CRIMINAL DEFENSE LAWYERS AND PUT IN THEIR BINDERS SO THAT WE CAN REGURGITATE THESE THINGS IN FRONT OF JURIES. IT'S WHETHER OR NOT THE TESTS PRODUCE THE CORRECT ANSWERS. THAT'S THE ONLY FACT ISSUE IN THAT CONTEXT THAT THE JURY GETS TO DECIDE. AND SO THE BRIEF THAT I FILED, IT WAS CLEAR ON JANUARY 4TH THAT I WOULD BE FILING A BRIEF SUCH AS THIS BECAUSE IT WAS CLEAR THAT REGARDLESS OF THE DECEMBER RULING BY YOU AND REGARDLESS OF THE CLEAR UNAMBIGUOUS WAIVER ON JANUARY 4TH, THAT THE DEFENSE TEAM HAD EVERY INTENTION REGARDLESS OF ANY KIND OF RULING BY YOU OF PARADING ALL SORTS OF UNRELIABLE HEARSAY IN THROUGH CROSS-EXAMINATION OF THE PROSECUTION WITNESSES. THAT WAS NEVER IN DOUBT. THAT IS THE ONLY WAY TO CONFUSE THE JURY AND DISTRACT THEM FROM THE ONLY ISSUE, AND THAT IS, ARE THE TESTS IN FACT RELIABLE. SO WHEN THE DEFENSE FILED THE MOTION THAT MR. CLARKE JUST RESPONDED TO, IT BECAME IMPORTANT TO TAKE THIS BRIEF OUT OF THE CAN AND JUST FILE IT ALONG WITH IT BECAUSE THEY ARE TOTALLY CONNECTED IN FACT AT THIS POINT IN TIME AND THEY'RE TOTALLY CONNECTED IN THE KIND OF ASSESSMENT THAT YOU HAVE TO MAKE IN THIS POINT. PERHAPS, YOU KNOW, WHAT WE'VE -- IN DISCUSSIONS ABOUT PERSONAL ATTACKS BEING MADE, ONE OF THE EXAMPLES OF THE KINDS OF HEARSAY THAT GETS PARADED AROUND IS ON PAGE 16 OF THE BRIEF THAT MR. CLARKE RESPONDED TO. AND THESE ARE THE KINDS OF SCANDALOUS BASELESS THINGS THAT GET PERVERTED AND PARADED ACROSS THE COUNTRY. THAT'S THE FOOTNOTE 12, THE ACCUSATION, THE PERSONAL ACCUSATION THAT MISS CLARK HAS PREVIOUSLY MISREPRESENTED THINGS IN HER PRESENTATION TO JURORS. AND IN FACT, IF THE COURT WERE TO READ THE ACTUAL ARTICLE THAT THE COLLEAGUE OF THE DEFENSE TEAM HAS WRITTEN ON THIS POINT, THE COURT WOULD SEE VERY CLEARLY -- AND THAT'S ONE OF THE EXHIBITS THAT WAS APPENDED TO THE DEFENDANT'S ADMISSIBILITY BRIEF -- THAT IN FACT, MISS CLARK NEVER MISREPRESENTED ANYTHING IN HER PRESENTATION. THE ARTICLE IS ON THE CARDOZA LAW REVIEW. IT'S FOOTNOTE 7.
EVERYONE ON THIS SIDE OF THE ROOM KNOWS EXACTLY WHAT HAPPENED. THE QUESTIONS THAT WERE ASKED OF THE SCIENTISTS -- AND THESE WERE IN CONTEXT OF PRIOR QUESTIONS AND SUBSEQUENT QUESTIONS -- THEY WERE ASKED BY THE COURT. FOR PEOPLE TO SAY, AS WAS DONE IN THE BRIEF AND AS MR. SCHECK TOOK A GREAT ADVANTAGE OF YESTERDAY, THIS IS THE SECOND TIME MISS CLARK HAS DONE SOMETHING LIKE THIS, IT'S NOT THE SECOND TIME. IT'S NOT THE FIRST TIME. THE COURT ASKED THE QUESTION: "DOES THAT MEAN IT'S CONSISTENT WITH HIS BEING THE FATHER OR IT'S 100 PERCENT CERTAIN THAT HE IS THE FATHER? "ANSWER: IN MY OPINION, HE IS THE FATHER." AND THEN THE COURT ASKED ANOTHER QUESTION. THESE ARE THE KINDS OF LOW-LEVEL, UNRELIABLE, PREPACKAGED THINGS THAT WILL CERTAINLY BE INTRODUCED INTO THIS TRIAL THROUGH CROSS-EXAMINATION OF OUR WITNESSES SHOULD THE COURT NOT ADHERE TO THE CLEAR RULE OF LAW IN THIS STATE. I CAN'T SPEAK TO WHAT THE RULE OF LAW IS IN OTHER STATES, BUT SECTION 721 SIMPLY STANDS FOR THE PROPOSITION THAT IT IS INAPPROPRIATE TO CROSS-EXAMINE ANY EXPERT ON MATERIAL THAT THAT EXPERT HAS NOT REFERRED TO, CONSIDERED OR RELIED UPON. AND I THINK BY MR. SCHECK'S COMMENTS YESTERDAY, IT IS CLEAR THAT THEY ARE OUTRAGED AT THE POSSIBILITY THAT THEY WILL NOT BE ABLE TO CROSS-EXAMINE EXPERT WITNESSES ON THE KINDS OF MATERIAL THAT THEY WANT TO INTERJECT INTO THIS CASE, THE KINDS OF THINGS THAT ARE HEARSAY. I USE DR. MULLIS AS AN EXAMPLE. I USED HIM AS AN EXAMPLE ONLY BECAUSE HE HAS NEVER PUBLISHED ANY SCIENTIFIC ARTICLE CRITICAL OF THE TECHNIQUES USED. I INVITED YOU IN MY MOTION TO REVIEW HIS TESTIMONY THAT WAS APPENDED TO THE DEFENDANT'S BRIEF IN OPPOSITION TO THE ADMISSIBILITY OF DNA EVIDENCE. IT'S HARDLY WHAT YOU WOULD CALL A SCATHING INDICTMENT OF THE FORENSIC APPLICATION OF PCR, BUT THOSE ARE THE VERY KINDS OF THINGS THAT THE DEFENSE INTENDS TO ELICIT ON CROSS-EXAMINATION OF OUR WITNESSES EVEN THOUGH OUR WITNESSES HAVE NOT REFERRED TO, CONSIDERED OR RELIED UPON THEM. NOW, THERE'S A VERY GOOD REASON THAT THEY WANT TO DO IT THAT WAY. AND THE REASON IS BECAUSE THAT DENIES US THE OPPORTUNITY TO CROSS-EXAMINE THOSE PEOPLE. AND AS I ALLUDED TO IN MY BRIEF, THERE ARE VERY GOOD REASONS THE DEFENSE DOES NOT WANT US TO CROSS-EXAMINE THE EXPERTS THAT THEY'D LIKE TO GET IN THROUGH HEARSAY.
WE WOULD LOVE TO CROSS-EXAMINE EACH AND EVERY WITNESS THAT THE DEFENSE WOULD LIKE TO HOLD OUT AS VOICING SOME OPPOSITION TO THE ACTUAL RELIABILITY OF THE TESTS PRODUCED IN THIS CASE, WHICH IS THE ONLY RELIABILITY LEFT NOW THAT THEY'VE WAIVED THEIR HEARING. UNFORTUNATELY, WE'LL NEVER GET TO CROSS-EXAMINE DR. BLAKE BECAUSE THEY JUST DROPPED HIM LIKE A HOT POTATO FROM THEIR WITNESS LIST. THAT WAS NO SURPRISE. IF YOU LISTEN AND THINK BACK VERY CAREFULLY ON MR. SCHECK'S ARGUMENTS YESTERDAY, THEY HAVE SOMEHOW MERGED TWO LEGAL PRINCIPLES IN THIS AREA, TWO EVIDENCE CODE SECTIONS; AND THAT IS, WHAT SORT OF MATERIAL AN EXPERT MAY REASONABLY RELY UPON IN PROVIDING EXPERT TESTIMONY AND OPINION TESTIMONY IN A CASE AND USE THAT CONCEPT TO OBLITERATE THE RESTRICTIONS ON CROSS-EXAMINATION OF EXPERTS THAT I'VE ALLUDED TO IN EVIDENCE CODE SECTION 21. AND IF YOU ALLOW THAT SORT OF MERGER, THE COURT OF PERVERSE PRINCIPAL THAT COMES OUT OF IT IS, THEY GET TO DECIDE WHAT OUR WITNESSES SHOULD HAVE RELIED UPON. AND WHEN THEY GET TO DECIDE WHAT THEY SHOULD HAVE RELIED UPON, THEN THEY GET TO CROSS-EXAMINE ON ALL THIS BASELESS FACELESS HEARSAY THAT THEY CERTAINLY SEEK TO INTRODUCE IN THIS CASE, NOT FROM THEIR WITNESSES, BUT FROM OUR WITNESSES.
WE DO NOT SEEK TO IMPOSE ANY RESTRAINTS OTHER THAN OTHER EVIDENCE CODE PROVISIONS AND OTHER CASE LAW PROVISIONS SUCH AS IN PEOPLE VERSUS CORRISH ON THEIR EFFORTS TO CONVINCE THIS JURY THAT IN FACT OUR RESULTS ARE UNRELIABLE. NOW, THAT'S GOING TO BE PRETTY HARD IN THIS CASE, YOUR HONOR, BECAUSE THE ONLY WAY THEY COULD DO THAT IS IF THEY RETESTED OUR EVIDENCE THROUGH DNA TESTING. MR. SCHECK EXPRESSED CONCERN THAT SOMEONE -- NOBLE PRIZE WINNER SUCH AS DR. MULLIS WOULD HAVE TO ANSWER PERSONAL QUESTIONS. WELL, THE LAST TIME I LOOKED IN THE CALIFORNIA EVIDENCE CODE, WE DIDN'T HAVE AN EXCEPTION FOR NOBLE PRIZE WINNERS. THAT EVERYBODY THAT STEPS UP THERE AND RAISES THEIR HAND, THEY'RE A WITNESS. IF THEY'RE A NOBLE PRIZE WINNER, THAT'S FINE. THEY'RE A WITNESS FIRST, AND EVERY WITNESS' CREDIBILITY IS OPEN TO THE SAME CONSIDERATIONS. DID I HAVE A DREAM OR DID I SEE RON SHIPP BEING DRAKED OVER THE COALS ABOUT VIRTUALLY EVERY ASPECT OF HIS PERSONAL LIFE? DID I DREAM OR DID DENISE BROWN HAVE TO DO THE SAME THING? AND WHAT DID THOSE TWO PEOPLE DO TO DESERVE THAT? RON SHIPP WAS THE DEFENDANT'S FRIEND. THAT'S WHAT -- THAT'S THE PAYBACK THAT HE GOT. DENISE BROWN HAD TO SEE HER SISTER TAKEN AWAY FROM HER. NOW, DO WE HAVE TO TREAT A NOBLE PRIZE WINNER ANY DIFFERENTLY JUST BECAUSE THEY WANT US TO? I DON'T THINK SO, YOUR HONOR. WE'LL SEE. BUT I'M TELLING YOU, THAT DAY WILL NEVER COME. IF THIS COURT ADHERES TO EVIDENCE CODE SECTION 721, THE CASE THAT'S CITED IN JEFFERSON, HE'LL BE A BLIP ON THE RADAR SCREEN. HE'S NOT GOING TO SIT UP THERE AND TESTIFY BECAUSE HE HAS NOTHING MEANINGFUL TO ADD ABOUT THE ACTUAL RELIABILITY OF OUR TEST RESULTS. I URGE YOU TO FOLLOW THE CLEAR LAW IN THIS POINT. I'M ANXIOUS TO HEAR A LEGAL RESPONSE TO OUR IN LIMINE MOTION. I BROUGHT IT UP TO THE COURT BECAUSE IT WAS CLEAR ON JANUARY 4TH WE WOULD HAVE TO HAVE THIS DISCUSSION. THANK YOU.
GOOD AFTERNOON, YOUR HONOR. BEFORE I RESPOND DIRECTLY TO MR. HARMON'S MOTION, I WANT TO RESPOND BRIEFLY TO HIS POINT ABOUT FOOTNOTE 12 OF THE NOTICE OF OBJECTIONS AND THE STATEMENT THAT MISS CLARK HAD PREVIOUSLY PRESENTED TESTIMONY IN THE FORM THAT WE CONSIDER OBJECTIONABLE. I WROTE THAT FOOTNOTE. I WROTE IT BASED ON A CAREFUL REVIEW OF THE TRANSCRIPT. WE WILL SUBMIT THE TRANSCRIPT TO YOU SO YOU CAN SEE THE ENTIRE THING IN CONTEXT, AND WE CONTINUE TO REGARD THAT TRANSCRIPT AS AN EXCELLENT EXAMPLE OF THE TYPE OF TESTIMONY THAT WE THINK IS INADMISSIBLE UNDER CALIFORNIA LAW ON THE GROUNDS THAT WE LAID OUT IN THE NOTICE OF OBJECTIONS. ALL RIGHT. NOW, LET ME TURN TO MR. HARMON'S ARGUMENTS --
ALL RIGHT. MR. THOMPSON, WHEN DO YOU ANTICIPATE LODGING THAT WITH THE COURT, THE COMPLETE TRANSCRIPT? I WOULD LIKE TO SEE IT.
ALL RIGHT. ALL RIGHT. NOW, MR. HARMON'S MOTION HERE IS AN EFFORT TO RESTRICT THE ABILITY OF THE DEFENSE TO INQUIRE OF PROSECUTION WITNESSES CONCERNING THE GENERAL ACCEPTANCE OF THE TECHNIQUES THAT ARE BEING USED HERE. IT GOES FURTHER IN ATTEMPTS TO LIMIT TESTIMONY BY DEFENSE WITNESSES REGARDING THE OPINIONS OF PEOPLE IN THE SCIENTIFIC COMMUNITY CONCERNING THESE TECHNIQUES WHOSE RELIABILITY IS AT ISSUE IN THIS CASE. NOW, MR. HARMON MAKES A SERIES OF DISTINCT LEGAL ARGUMENTS FOR HIS POSITION, AND I THINK IT WOULD BE USEFUL TO GO THROUGH THEM ONE AT A TIME TO TRY TO DISENTANGLE THEM AND SHOW YOU WHY WE THINK THEY'RE ALL GROUNDLESS AND THAT WE HAVE A PERFECT RIGHT TO ENGAGE IN INQUIRY IN THESE AREAS SUBJECT TO OBVIOUS LIMITATIONS IMPOSED BY THE HEARSAY RULE OR SECTION 352. NOW, THE FIRST ARGUMENT THAT MR. HARMON MAKES IN HIS PAPERS IS THAT THE DEFENDANT IS SOMEHOW PRECLUDED FROM INQUIRY ON GENERAL ACCEPTANCE BY VIRTUE OF THE DETERMINATION OF PRELIMINARY FACTS ARISING UNDER KELLY. IN OTHER WORDS, SOMEHOW WE ARE BOUND OR LIMITED BY VIRTUE OF THE FACT THAT THERE IS A DETERMINATION OF PRELIMINARY FACT REGARDING GENERAL ACCEPTANCE. NOW, I THINK IN EVALUATING THIS CLAIM, THE COURT SHOULD KEEP IN MIND THE DISTINCTION THAT'S DRAWN IN ARTICLE 2 OF THE EVIDENCE CODE, THAT IS EVIDENCE CODE SECTION 400 THROUGH 406 BETWEEN PRELIMINARY FACT ON THE ONE HAND AND FACT IN ISSUE ON THE OTHER HAND. PRELIMINARY FACTS ARE OF COURSE FACTS THAT ARE DECIDED BY THE JUDGE IN ORDER TO DETERMINE THE ADMISSIBILITY OF EVIDENCE, AND GENERAL ACCEPTANCE WITHIN THE RUBRIC OF KELLY IS A PRELIMINARY FACT. FACTS IN ISSUE ARE TO BE DECIDED BY THE JURY. SO THE BASIC LEGAL POINT RAISED BY THIS ARGUMENT IS WHETHER AND UNDER WHAT CIRCUMSTANCES A DETERMINATION OF PRELIMINARY FACT IS BINDING ON THE JURY OR PLACES A LIMITATION ON INQUIRY BY A PARTY. AND THE ANSWER THAT'S VERY CLEAR FROM THE EVIDENCE CODE AND THE CASE LAW IS NEVER. NEVER. THERE IS A COMPLETE WALL OF SEPARATION BETWEEN THE PRELIMINARY FACT DETERMINATION AND THE DETERMINATION OF FACT BY THE JURY. THIS IS MADE -- THIS IS MADE PERFECTLY CLEAR IN EVIDENCE CODE SECTION 406. THE ARTICLE 2 ENCOMPASSES 400 THROUGH 406. SECTION 406 STATES VERY CLEARLY: "THIS ARTICLE DOES NOT LIMIT THE RIGHT OF A PARTY TO INTRODUCE BEFORE THE TRIER OF FACT EVIDENCE RELEVANT TO WEIGHT OR CREDIBILITY." NOTHING ABOUT THE PRELIMINARY FACT DETERMINATION LIMITS WHAT CAN BE PRESENTED TO THE JURY. I THINK IF WE THINK ABOUT THIS FOR A MINUTE, IT'S CLEAR WHY THAT MUST BE SO. IT MUST BE SO AS A MATTER OF CONSTITUTIONAL PRINCIPAL. FOR ONE THING, FOR THE -- FOR THE PRELIMINARY FACT DETERMINATION, A JUDGE'S ISSUE TO BE IMPOSED ON THE JURY, THE TRIER OF FACT, WOULD INVADE THE PROVINCE OF THE JURY ON THE VERY FACTS WHICH HAVE TRADITIONALLY BEEN LEFT TO THE JURY, SUCH AS THE RELIABILITY OF THE EVIDENCE, AND IT WOULD INVITE THE PROVINCE OF THE JURY IN A PARTICULARLY DANGEROUS WAY BECAUSE THERE IS A DIFFERENT STANDARD OF PROOF FOR PRELIMINARY FACT DETERMINATION BY THE JUDGE AND FOR FACT IN ISSUE DETERMINATION BY THE JURY. IN THE CONTEXT OF A CRIMINAL TRIAL, THE STANDARD OF PROOF FOR THE JURY IS BEYOND A REASONABLE DOUBT. WHAT MR. HARMON'S PROPOSAL WOULD HOLD IS THAT IF THE PROSECUTION CAN BY A PREPONDERANCE OF EVIDENCE CONVINCE THE COURT THAT A PARTICULAR TECHNIQUE IS GENERALLY ACCEPTED, THEN THAT WOULD PRE -- THAT WOULD -- THAT HOLDING WOULD BE IMPOSED ON THE TRIER OF FACT, THE JURY, WHICH HAS A BEYOND A REASONABLE DOUBT STANDARD. SO IT INVADES THE PROVINCE OF THE JURY, IT UNDERMINDS THE PRESUMPTION OF INNOCENCE AND THE CORRECT BURDEN OF PROOF. NOW, THERE ARE A NUMBER OF EXAMPLES IN CALIFORNIA LAW THAT ILLUSTRATE THE FACT THAT THE -- THIS FACT OF SEPARATION BETWEEN PRELIMINARY FACT DETERMINATION BY THE JUDGE AND FACT IN ISSUE DETERMINATION BY THE JURY. ONE EXAMPLE THAT COMES UP IS THE DETERMINATION OF THE RELIABILITY OF A LINEUP. OFTEN AS AN ISSUE OF PRELIMINARY FACT, THE TRIAL COURT HAS TO DECIDE WHETHER A LINEUP IS RELIABLE. IF THE JUDGE DECIDES THAT IT'S SUFFICIENTLY RELIABLE FOR THE LINEUP IDENTIFICATION TO BE ADMISSIBLE, THEN THE ISSUE COMES UP, DOES THE JUDGE'S DETERMINATION OF RELIABILITY POSE ANY LIMITATION ON HOW THE DEFENDANT CAN ATTACK THE RELIABILITY OF THE LINEUP AT TRIAL. ANSWER, NO. THE ANSWER IS VERY CLEARLY NO, AND I REFER YOU TO PEOPLE VERSUS RODRIGUEZ, 88 CAL. REPORTER 789 OR 10 CAL. APP. 3D. 18, WHICH STANDS FOR THIS PROPOSITION THAT THE PRELIMINARY FACT DETERMINATION OF RELIABILITY OF THE LINEUP IS IN NO WAY BINDING ON THE JURY. THE SAME ISSUE COMES UP WITH REGARD TO THE PRELIMINARY FACT OF THE RELIABILITY OF A HEARSAY STATEMENT. THE JUDGE MUST DETERMINE AS A PRELIMINARY MATTER OFTEN WHETHER A HEARSAY STATEMENT IS SUFFICIENTLY RELIABLE TO GO TO THE JURY. IF THE JUDGE DETERMINES IT'S RELIABLE, DOES THAT THEN MEAN THAT THERE'S -- THAT THE -- THAT THAT'S SOMEHOW BINDING ON THE JURY OR THAT THAT LIMITS WHAT LITIGANTS CAN DO? OBVIOUSLY NOT. OBVIOUSLY NOT, AND THE EVIDENCE CODE SAYS SO. I REFER YOU PARTICULARLY TO THE JUDICIARY COMMITTEE'S COMMENT TO EVIDENCE CODE SECTION 405, WHICH SAYS EXPLICITLY THAT THIS SORT OF LIMITATION DOES NOT APPLY. I THINK THE -- THIS -- THIS POINT IS ALSO EASILY INFERRED FROM THE STRUCTURE OF THE RULES THEMSELVES. SOME ISSUES OF PRELIMINARY FACT DETERMINATION FALL UNDER SECTION 403. SOME FALL UNDER SECTION 405. WITH REGARD TO THOSE THAT FALL UNDER SECTION 403, THE LAW REQUIRES THAT THE JURY BE ALLOWED TO REDETERMINE THE FACT AND IT REQUESTED INSTRUCTED TO REDETERMINE THE FACT. IN EFFECT, WITH RESPECT TO DNA EVIDENCE, WE KNOW SOME ISSUES DO FALL UNDER 403 DESPITE WHAT MR. CLARKE SAID BECAUSE WE ARE INSTRUCTED SO BY THE COURT OF APPEAL IN PEOPLE VERSUS PIZARRO. IN PIZARRO, THE COURT OF APPEAL SAID THAT ISSUES OF PRELIMINARY FACT DETERMINATION REGARDING THE ADEQUACY AND RELEVANCE OF A DATABASE FALL UNDER 403. THEY ARE ISSUES TO BE REDETERMINED BY THE JURY. SO OBVIOUSLY IF IT FALLS UNDER 403 AND THE JURY IS GOING TO REDETERMINE IT, THEN THE JUDGE'S DETERMINATION HAS NO LIMITING EFFECT. OTHER DETERMINATIONS FALL UNDER 405. WITH RESPECT TO THOSE FALLING UNDER 405 THOUGH, AGAIN, THERE'S THIS WALL OF SEPARATION. SECTION 405 SAYS IN PART, 405(B), THAT IF THE PRELIMINARY FACT IS ALSO A FACT AT ISSUE IN THE ACTION, SAYS, QUOTE: "THE JURY SHALL NOT BE INFORMED OF THE COURT'S DETERMINATION AS TO THE EXISTENCE OR NONEXISTENCE OF THE PRELIMINARY FACT; AND IF THE PROFFERED EVIDENCE IS ADMITTED, THE JURY SHALL NOT BE INSTRUCTED TO DISREGARD THE EVIDENCE IF ITS DETERMINATION OF THE FACT DIFFERS FROM THE COURT'S DETERMINATION OF THE FACT." SO THIS ARGUMENT THAT THE DETERMINATION OF PRELIMINARY FACT WITH RESPECT TO KELLY SOMEHOW LIMITS WHAT CAN BE DONE IN FRONT OF THE JURY IS SIMPLY A NONSTARTER. THERE'S NO BASIS FOR IT. MR. CLARKE SUGGESTS THAT -- THAT SECTION -- THAT ARTICLE 2 OF THE EVIDENCE CODE MAY SOMEHOW BE INAPPLICABLE TO KELLY DETERMINATIONS. HE CITES NO AUTHORITY FOR THAT WHATSOEVER. I DON'T BUY THE ARGUMENT. BUT EVEN IF IT'S TRUE AND EVEN IF KELLY IS SOMEHOW SEPARATE, THE IDEA THAT THE KELLY DETERMINATION LIMITS THE KIND OF CHALLENGE THAT CAN BE MADE IN FRONT OF THE JURY ONCE THE EVIDENCE IS ADMITTED IS BELIED BY THE VERY LANGUAGE OF THE KELLY CASES. I REFER YOU, FOR EXAMPLE, TO -- THERE ARE TWO INTERESTING CASES WHERE KELLY-FRYE CHALLENGES WERE RESOUND -- BY THE DEFENSE WERE RESOUNDINGLY REJECTED BY THE COURT AND COURTS HELD AS AN ISSUE OF PRELIMINARY FACT THAT SEROLOGY TESTS WERE ADMITTED THAT -- WHERE THE COURT OF APPEAL COMMENTS ON THIS. ONE IS PEOPLE VERSUS SMITH AT 215 CAL. APP. 3D 19. AFTER THE TRIAL JUDGE TOOK JUDICIAL NOTICE OF THE RELIABILITY OF THE SEROLOGY TESTS, THE COURT OF APPEAL NOTES THAT, QUOTE: "APPELLANT HAD FULL OPPORTUNITY TO CROSS-EXAMINE THE PROSECUTION'S SEROLOGIST'S QUALIFICATIONS AND METHODS AND TO PRESENT WHATEVER EVIDENCE HE DESIRED CHALLENGING THEM."
WHATEVER EVIDENCE HE DESIRED. SIMILAR LANGUAGE CAN BE FOUND IN PEOPLE VERSUS COOPER AT 281 CAL. REPORTER 90. AGAIN, THIS WAS A CASE WHERE THE DEFENSE MOUNTED --
JUST SO COUNSEL ARE AWARE, CAL. REPORTER CITES DON'T DO ME MUCH GOOD AS A PRACTICAL MATTER.
NO. I'M FAMILIAR WITH THE CASE. I'M JUST SAYING IT DOESN'T HELP ME SINCE I ONLY HAVE THE OFFICIAL REPORTS.
OKAY. THANKS. I'LL TRY TO STICK TO THOSE TO THE EXTENT I HAVE THEM. BUT COOPER, AGAIN, THE SAME ISSUE. THE DEFENDANT'S PRETRIAL CHALLENGE UNDER KELLY TO SEROLOGY TESTS WAS RESOUNDINGLY REJECTED BY THE COURT. THE COURT DETERMINED THAT IT WAS RELIABLE AS A MATTER FOR KELLY. DOES THAT THEN LIMIT THE ATTACK ON RELIABILITY IN FRONT OF THE JURY? NO. THE COURT OF APPEAL SAYS, QUOTE: "DEFENDANT WAS ALLOWED TO CROSS-EXAMINE THE PROSECUTION'S SEROLOGIST FULLY ABOUT HIS QUALIFICATIONS AND THE MANNER IN WHICH HE DID THE TESTING AND TO PRESENT WHATEVER ADDITIONAL EVIDENCE HE DESIRED." AGAIN, WHATEVER ADDITIONAL EVIDENCE HE DESIRED. SO THIS ARGUMENT THAT SOMEHOW -- THAT SOMEHOW THE -- THE KELLY DETERMINATION PRECLUDES LINES OF INQUIRY HAS NO BASIS IN LAW. IT'S A COMPLETE NONSTARTER. WELL, THERE'S A SECOND ARGUMENT I WANT TO TURN TO NOW, AND THAT'S THE ARGUMENT MR. HARMON MAKES THAT SOMEHOW INQUIRY ON TO GENERAL ACCEPTANCE ISSUES LACKS RELEVANCE. IT'S SIMPLY NOT RELEVANT HE SUGGESTS TO INQUIRE IN FRONT OF THE JURY REGARDING THE OPINIONS OF THE SCIENTIFIC COMMUNITY ABOUT THE TECHNIQUES IN QUESTION. AND HE DRAWS THIS DISTINCTION BETWEEN ADMISSIBILITY, RELIABILITY AND ACTUAL RELIABILITY ARGUING THAT THEY'RE TWO DIFFERENT THINGS. NOW, IN FACT, I FIND NO AUTHORITY WHATSOEVER IN CALIFORNIA LAW FOR THIS DISTINCTION BETWEEN ADMISSIBILITY, RELIABILITY AND ACTUAL RELIABILITY. I THINK HE'S -- HE'S SIMPLY CONFUSED. THE REAL DISTINCTION IS BETWEEN PRELIMINARY FACT AND FACT IN ISSUE. THERE'S NO SUPPORT FOR THE ADMISSIBILITY VERSUS ACTUAL DISTINCTION. AND THE FACT THAT INQUIRY IN THESE AREAS IS RELEVANT I THINK IS PRETTY OBVIOUS.
INQUIRY ABOUT THE OPINIONS OF OTHER SCIENTISTS COULD BE RELEVANT ON A NUMBER OF ISSUES. IT CAN BE RELEVANT TO THE DIRECT ISSUE OF RELIABILITY WHICH THE JURY HAS TO ASSESS KNOWING, FOR EXAMPLE, THAT -- THAT THERE ARE SCIENTISTS SIGNIFICANT IN NUMBER AND EXPERTISE IN THE SCIENTIFIC COMMUNITY WHO CONSIDER A PARTICULAR TEST PROCEDURE UNRELIABLE.
ALL RIGHT. WELL, LET'S TURN TO THAT. IF YOU ACCEPT THAT IT'S RELIABLE, I CERTAINLY -- THE 721 ARGUMENT I THINK IS A DIFFERENT -- IS A DIFFERENT ISSUE FROM RELEVANCE. BUT LET'S -- I'LL TALK ABOUT --
WELL, LET'S ASSUME THAT THE -- THE CONTEXT THAT YOU'RE JUST PLACED THAT ARGUMENT THOUGH IS IN THE CROSS-EXAMINATION OF PROSECUTION EXPERTS.
OKAY. WELL, THE LIMITATION OF 721 HAS TO DO WITH CROSS-EXAMINING EXPERTS ABOUT DOCUMENTS, TREATISES AND SO ON ABOUT WHICH THEY'RE NOT FAMILIAR. ALL RIGHT. NOW, MR. HARMON SUGGESTS THAT THIS LIMITATION APPLIES NOT--
WELL, THAT THEY HADN'T CONSIDERED -- YEAH, THAT THEY HADN'T RELIED UPON AND IT HADN'T BEEN ADMITTED INTO EVIDENCE. OKAY. SO -- YEAH. THE WITNESS -- IT SAYS THE WIT -- UNDER 721, SECTION 1: "THE WITNESS REFERRED TO, CONSIDERED OR RELIED UPON SUCH PUBLICATIONS IN RELYING --"
"IN ARRIVING AT HIS OPINION." OKAY. WELL, WITH REGARD TO THE OPINIONS OF OTHER SCIENTISTS, A NUMBER OF LINES OF INQUIRY ARE POSSIBLE UNDER 721.
BUT SEE, WHAT I'M CONCERNED ABOUT IS THAT ON EITHER SIDE, IF EITHER SIDE CALLS AN EXPERT WITNESS, I AM SURE THERE ARE THEORIES -- THE ONES THAT -- FOR EXAMPLE, THAT WERE MENTIONED YESTERDAY REGARDING NONRELATED CONTROVERSIAL ISSUES THAT SOMEONE WOULD WANT TO CROSS-EXAMINE ON THAT ARE JUST SO FAR OUT INTO LEFT FIELD THAT ARE RIDICULOUS. I MEAN, DO I HAVE TO ALLOW THAT IN CROSS-EXAMINATION?
WITH REGARD TO 721, IT'S CLEAR THAT IF -- IF -- IF A QUESTION IS ASKED OF THE EXPERT, "ARE YOU FAMILIAR WITH DR. MULLIS' TESTIMONY ON THE RELIABILITY OF HIS TECHNIQUE," OR, "DO YOU KNOW ABOUT DR. MULLIS' POSITION," IF THE ANSWER IS NO, THEN THE INQUIRY WOULD HAVE TO STOP -- THE INQUIRY WOULD HAVE TO STOP THERE. BUT AT LEAST --
BUT LET'S ASSUME THAT ANY EXPERT REGARDING DNA AND SPECIFICALLY IN THE PCR CONTEXT WOULD BE INTERESTED IN READING THE LITERATURE AS TO WHAT DR. MULLIS HAS TO SAY.
THEY MAY TOTALLY DISCOUNT WHAT DR. MULLIS HAS TO SAY ABOUT ANY NUMBER OF THINGS, BUT THE FACT THAT THEY'VE READ IT AND THEY'RE FAMILIAR WITH IT, DO YOU THINK THAT THAT ENTITLES YOU TO THEN CROSS-EXAMINE ON THAT?
IF -- I THINK THE LANGUAGE IN THE STATUTE SAYS IF THEY'VE CONSIDERED IT, THEN THEY CAN BE ASKED ABOUT IT. ALL RIGHT. CERTAINLY WE'RE ENTITLED TO INQUIRE AS TO THE STATE OF THEIR KNOWLEDGE.
TO DETERMINE WHAT IT IS THAT THEY KNOW. I THINK WE'RE ALSO ENTITLED TO PROFOUND -- TO PROPOUND HYPOTHETICAL QUESTIONS TO THEM; "WOULD IT CHANGE YOUR OPINION IF YOU KNEW THAT A CERTAIN SCIENTIST THOUGHT SUCH AND SUCH," IF ASKED IN GOOD FAITH. THOSE QUESTIONS ARE ALLOWABLE UNDER 721. THERE'S NO HEARSAY PROBLEM WITH QUESTIONS OF THAT -- OF THAT TYPE. THE PROBLEM I HAVE ABOUT MR. HARMON'S ARGUMENT BOTH ABOUT THE HEARSAY AND UNDER 721 IS THAT I THINK THEY SWEEP TOO BROADLY. THEY -- HE SEEKS TO LIMIT US FROM ENGAGING IN AN ENTIRE AREA OF INQUIRY BECAUSE HE CAN IMAGINE CERTAIN TYPES OF QUESTIONS IN THAT AREA THAT WOULD RUN AFOUL OF THE HEARSAY RULE OR SECTION 721 RULE.
BUT IN FACT, THERE ARE OTHER LINES OF INQUIRY THAT WOULDN'T. AND SO TO EXCLUDE US FROM THE ENTIRE AREA BECAUSE HE CAN IMAGINE QUESTIONS THAT WOULD BE IMPROPER IS -- GOES WAY TOO FAR AND IS PREMATURE AT THIS POINT. WHILE WE'RE QUESTIONING HIS WITNESSES, IF HE HAS HEARSAY OBJECTIONS, HE CAN RAISE THEM AT THAT POINT. IF HE HAS 721 OBJECTIONS, HE CAN RAISE THEM AT THAT POINT, AND I THINK THAT'S -- THAT'S NOT A PROBLEM. BUT TO ASK YOU AT THIS POINT TO PRECLUDE AN ENTIRE AREA OF INQUIRY WHEN THAT AREA OF INQUIRY IS CLEARLY RELEVANT -- IF IT -- IF IT WEREN'T -- IF IT WEREN'T RELEVANT TO ASK WHAT -- WHAT MEMBERS OF THE SCIENTIFIC COMMUNITY WHO ARE KNOWLEDGEABLE IN THESE AREAS THINK ABOUT THE RELIABILITY OF A TECHNIQUE, WE WOULD NEVER HAVE A FRYE STANDARD. I MEAN, THE WHOLE BASIS AND IDEA BEHIND THE FRYE STANDARD IS THAT IF YOU WANT TO KNOW WHETHER A TECHNIQUE IS RELIABLE, YOU SHOULD SOLICIT THE OPINIONS OF PEOPLE WHO ARE KNOWLEDGEABLE ABOUT THE TECHNIQUE. AND AS JUSTICE MOSK SAID IN THE SHIRLEY CASE, 18 CAL. 3D. 1 -- WHAT'S THAT?
BUT YOU KNOW THE FAMOUS QUOTE.
"IF SCIENTISTS SIGNIFICANT IN NUMBER AND EXPERTISE PUBLICLY OPPOSE THE TECHNIQUE ON GROUNDS THAT IT'S UNRELIABLE, THEN ONE CAN DRAW A REASONABLE INFERENCE THAT IT'S NOT RELIABLE." NOW, THAT REASONABLE INFERENCE, THE RELEVANCE IS RELEVANT FOR A TRIAL JUDGE IN DETERMINING THE ISSUE OF RELIABILITY AS A MATTER OF PRELIMINARY FACT. IT'S RELEVANT FOR THE TRIER OF FACT IN DETERMINING ITS RELIABILITY AS A FACT IN ISSUE. ALL RIGHT. SO THERE CAN BE -- THERE CAN BE NO BLANKET EXCLUSION OF INQUIRY IN THESE AREAS, AND -- AND IF THE PROSECUTION HAS 721 OR HEARSAY OBJECTIONS, LET THEM MAKE THEM AT THE TIME. ALL RIGHT. A COUPLE OF OTHER ISSUES COME UP. ONE ISSUE THAT MR. HARMON RAISED IS THE NOTION OF INQUIRY ABOUT ALTERNATIVE SCIENTIFIC TECHNIQUES, THE ISSUE RAISED BY THE CASE OF PEOPLE VERSUS CORRISH WHICH HE CITES IN HIS BRIEF. NOW, AGAIN, HERE I THINK MR. HARMON IS SWEEPING TOO BROADLY. HE'S TRYING TO ELIMINATE AN ENTIRE AREA OF INQUIRY BECAUSE THERE MAY BE INSTANCES WHERE INQUIRIES IN THAT CATEGORY --
WELL, LET'S -- WELL, HE'S -- YES, HE'S SEEKING TO WIPE OUT WHOLE LINES OF TESTIMONY.
NO. I THINK THE TACTIC IS, HE'S TRYING TO SENSITIZE THE TRIAL JUDGE TO WHAT'S COMING IS WHAT HE'S DOING.
UMM, YES. YEAH. PERHAPS. PERHAPS. LET ME -- WELL, LET ME COMMENT A BIT MORE ON CORRISH THOUGH.
THE -- THE -- CORRISH IS A CASE WHERE THE -- THE PROSECUTION PRESENTED SEROLOGICAL EVIDENCE. THE DEFENDANT CALLED AS AN EXPERT DR. BENJAMIN GRINBAUM WHO IS A DISTINGUISHED SEROLOGIST WHO -- WHO CRITIQUED THE PROSECUTION EVIDENCE, AND IN ORDER TO ILLUSTRATE THE NATURE OF HIS CRITICISM, OFFERED TO PRESENT A PHOTOGRAPH SHOWING HOW AN ALTERNATIVE AND IN HIS VIEW BETTER TECHNIQUE WOULD HAVE BEEN DONE. THAT PROFFER OF THE PHOTOGRAPH WAS REJECTED BY THE TRIAL COURT ON GROUNDS THAT THERE HADN'T BEEN AN ADEQUATE FOUNDATION TO SHOW ITS RELEVANCE TO THE FACT IN ISSUE OF RELIABILITY OF THE TEST THAT WAS DONE, AND THAT WAS UPHELD BY THE COURT OF APPEAL. NOW, THE PROBLEM IN CORRISH WAS SIMPLY LACK OF AN ADEQUATE FOUNDATION TO SHOW RELEVANCE. AND -- AND THE FACT THAT THE COURT OF APPEAL UPHELD THAT DECISION DOES NOT ESTABLISH ANY SWEEPING RULE OF LAW THAT SAYS EVIDENCE OF ALTERNATIVE TECHNIQUES CAN NEVER BE PRESENTED. IT SIMPLY MEANS THAT IN THAT PARTICULAR CASE, THE FOUNDATION WASN'T LAID. SO THIS NOTION THAT WE CAN -- THAT -- THAT -- THAT WE'RE LIMITED FROM ENTIRE AREAS OF INQUIRY BASED ON A CASE HAVING TO DO WITH FOUNDATIONAL ADEQUACY IS -- SWEEPS WAY TOO BROADLY. IF -- IF THE DEFENSE SEEKS TO PRESENT EVIDENCE REGARDING ALTERNATIVE TECHNIQUES, MR. HARMON CAN, AT THE POINT WE DO IT, RAISE FOUNDATIONAL OBJECTIONS IF HE HAS THEM. NOW, I CAN IMAGINE, FOR EXAMPLE, THAT ONE OF THE ISSUES THAT'S IMPORTANT TO US HAS TO DO WITH THE FAILURE OF SCIENTIFIC CONTROLS FOR THESE EXPERIMENTS OR INADEQUATE SCIENTIFIC CONTROLS. IN ORDER TO EXPLAIN TO THE JURY WHAT IT MEANS FOR A CONTROL TO FAIL OR WHAT -- OR WHAT IT MEANS FOR THERE TO BE INADEQUATE CONTROLS, WE MIGHT WELL, FOR EXAMPLE, WANT TO SHOW THE JURY WHAT IN OUR OPINION A WELL-CONTROLLED EXPERIMENT WOULD LOOK LIKE. NOW, IF WE SEEK TO PRESENT THAT KIND OF EVIDENCE, I THINK IT WILL BE UP TO YOU WHETHER WE'VE LAID AN ADEQUATE FOUNDATION OF RELEVANCE, OF DIRECT RELEVANCE TO ALLOW IT TO COME IN. IF WE HAVE, YOU ADMIT IT. IF WE HAVEN'T, YOU DON'T ADMIT IT. BUT THAT'S A DETERMINATION TO BE MADE BY YOU ON A CASE-BY-CASE -- ON AN INCIDENT-BY-INCIDENT BASIS AS THE EVIDENCE ARISES. YOU KNOW, THIS ATTEMPTED PREEMPTIVE STRIKE IS PREMATURE AND IT SWEEPS WAY TOO -- WAY TOO BROADLY. OKAY. FINALLY, LET ME SAY A FEW THINGS REGARDING MR. HARMON'S COMMENTS ABOUT DR. MULLIS AND HIS SUGGESTION THAT HE SHOULD BE ALLOWED FREE INQUIRY INTO PERSONAL LIFE-STYLE AND -- AND DRUG USE AND OTHER SUCH ISSUES OF DEFENDANT'S EXPERTS. HIS POSITION SEEMS TO BE THAT IF WE'RE ALLOWED TO QUESTION HIS EXPERTS ABOUT THE OPINIONS OF OTHER SCIENTISTS SUCH AS DR. MULLIS, THEN HE'S ENTITLED TO PRESENT EVIDENCE CONCERNING THOSE OTHER SCIENTISTS WITH REGARD TO LIFE-STYLE AND CHARACTER AND WITH REGARD TO THEIR OPINIONS ON UNRELATED SCIENTIFIC MATTERS AND EVEN ON SOCIAL ISSUES AS REASONS TO DISREGARD THEIR OPINION. NOW, OUR POSITION IS THAT THIS SHOULD NOT BE ALLOWED AND THERE ARE THREE REASONS FOR THIS. THE FIRST REASON IS THAT IT'S COMPLETELY IRRELEVANT. WE'RE TALKING ABOUT SCIENTIFIC EXPERTS HERE. WE'RE NOT TALKING ABOUT PERCIPIENT WITNESSES WHOSE PERCEPTIONS OF A PARTICULAR MATTER MIGHT HAVE BEEN CLOUDED BY ALCOHOL CONSUMPTION OR DRUG USE. WE'RE TALKING ABOUT SCIENTISTS EXPRESSING AN OPINION ON SCIENTIFIC ISSUES. NOW, SCHOLARS HAVE FOR CENTURIES RECOGNIZED THAT YOU CAN NOT JUDGE THE MERITS OF A SCIENTIFIC ARGUMENT BASED ON THE MORAL CHARACTER OF THE PERSON ADVANCING THAT ARGUMENT. THIS IS FUNDAMENTAL. THIS IS ABSOLUTELY FUNDAMENTAL. SCIENTIFIC ARGUMENTS STAND AND FALL ON THEIR OWN MERITS AND ON THE QUALITY OF THE ANALYSIS THAT SUPPORTS THEM, NOT ON THE CHARACTER OR LIFE-STYLE OF THE SCIENTIST WHO'S MAKING THE ARGUMENT. WOULD THE NOBLE PRIZE COMMITTEE HAVE TAKEN BACK DR. MULLIS' NOBLE PRIZE HAD THEY SUSPECTED THAT HE HAD USED LSD WHEN HE LIVED IN BERKELEY? I DOUBT IT. I DON'T EVEN DOUBT IT. I -- ABSOLUTELY NOT. THERE ARE MANY EXAMPLES IF WE LOOK AT HISTORY OF SCIENTISTS WHOSE LIFE-STYLE MAY BE CALLED INTO QUESTION. IT'S WELL KNOWN, FOR EXAMPLE, THAT SIGMUND FREUD MADE EXTENSIVE USE OF COCAINE. THERE'S AN INTERESTING DISCUSSION AMONG PSYCHOLOGISTS AS TO WHETHER HIS COCAINE USE MIGHT HAVE INFLUENCED HIS DEVELOPMENT OF THE THEORY OF PSYCHOANALYSIS. BUT NOBODY THINKS FOR A MINUTE THAT WHETHER OR NOT FREUD USED COCAINE HAS ANY RELEVANCE AT ALL TO THE SCIENTIFIC MERITS OF THE THEORY OF PSYCHOANALYSIS. CHARACTER, LIFE-STYLE OF FREUD IS NOT RELEVANT. WITH REGARD TO -- WITH REGARD TO OTHER SCIENTIFIC POSITIONS TAKEN BY SCIENTISTS -- MR. HARMON SUGGESTS THAT -- THAT DR. MULLIS HAS TAKEN POSITIONS OUT OF THE SCIENTIFIC MAINSTREAM ON OTHER TOPICS. NOW, WE REGARD THIS AS ALSO IRRELEVANT AND SUBJECT TO 352 OBJECTIONS BECAUSE IT'S LIKELY TO TAKE US VERY FAR AFIELD. I DON'T THINK THAT WE WANT TO HAVE A MINI TRIAL WITHIN THIS TRIAL ABOUT THE CONNECTION BETWEEN HIV VIRUS AND AIDS. I REALLY DON'T THINK WE DO. BUT IN ANY CASE, IT'S IRRELEVANT. LET'S LOOK AT OTHER SCIENTISTS. FOR EXAMPLE, LINUS PAULING, FOR EXAMPLE, WHO IS ONE OF THE MOST RESPECTED BIOCHEMISTS EVER HAD OPINIONS OUT OF THE SCIENTIFIC MAINSTREAM WITH REGARD TO THE EFFECT OF VITAMIN C. IF HE CAME IN TO TESTIFY ABOUT ISSUES IN BIOCHEMISTRY, WOULD HE HAVE BEEN SUBJECT TO EXTENSIVE CROSS-EXAMINATION ABOUT HIS OPINIONS ON VITAMIN C WHEN -- WHEN THAT WAS -- THAT WAS UNCONNECTED WITH THE SCIENTIFIC TESTIMONY HE WAS OFFERING? CERTAINLY NOT. IT'S SIMPLY IRRELEVANT. WITH REGARD TO THESE OPINIONS ON SOCIAL ISSUES -- I MEAN, FOR GOODNESS SAKE, ALBERT EINSTEIN HAD A NUMBER OF OPINIONS ON SOCIAL ISSUES, MARRIAGE, SOCIALISM AND SO ON THAT PUT HIM OUTSIDE THE MAINSTREAM. DOES ANYBODY THINK THAT EINSTEIN'S OPINIONS ON THOSE ISSUES HAS ANY RELEVANCE TO THE SCIENTIFIC VALIDITY OF THE THEORY OF RELATIVITY? IT'S NONSENSE. OF COURSE NOT. THE ONLY RELEVANCE TO ANY OF THESE LIFE-STYLE, CHARACTER OR UNRELATED SCIENTIFIC ISSUE OPINIONS WOULD COME UP IF THERE ARE SOME DIRECT SHOWING THAT IT AFFECTS THE WITNESS' PERCEPTIONS OR ABILITY TO COMMUNICATE. SO, FOR EXAMPLE, IF -- IF -- IF MR. HARMON, YOU KNOW, HAD THE HUTZPUH TO ASK DR. MULLIS. WELL, LET ME REPHRASE THAT.
WHEN MR. HARMON ASKS DR. -- ASKS DR. MULLIS, "ARE YOU ON LSD NOW AS YOU'RE TESTIFYING," YOU KNOW, IF HE WISHES TO PROPOUND THAT SORT OF QUESTION, I SEE THAT -- THAT AS POTENTIALLY RELEVANT. ON THE OTHER HAND, I THINK IT'S TERRIBLY PREJUDICIAL. SO IF HE WANTS TO -- IF HE WANTS TO ENGAGE IN INQUIRY OF DR. MULLIS ABOUT DRUG USE UNDER CIRCUMSTANCES WHERE THE QUESTIONS HAVE SOME RELEVANCE TO DR. MULLIS' ABILITY TO COMMUNICATE OR PERCEIVE SOMETHING AT ISSUE IN THIS CASE, THEN WE THINK HE CAN DO THAT, BUT WE ASK HE DO IT OUT OF THE HEARING OF THE JURY TO AVOID THE OBVIOUS PREJUDICE THAT WOULD COME -- THAT WOULD FLOW FROM SUCH QUESTIONS. BUT WITH REGARD -- BUT WITH REGARD TO THE SCIENTIFIC OPINIONS PER SE AND THE MERITS OF THE SCIENTIFIC OPINIONS, WHETHER HE USED -- WHETHER HE HAS USED DRUGS OR NOT OR WHAT HIS OPINION MIGHT BE ON OTHER ISSUES, IT IS COMPLETELY IRRELEVANT, IT IS COMPLETELY IRRELEVANT, POTENTIALLY HIGHLY PREJUDICIAL AND LIKELY TO LEAD US OFF ON A MERRY GOOSE CHASE THAT WOULD NEVER END.
DO YOU THINK HE CAN INQUIRE INTO DR. MULLIS'S ATTITUDES AND OPINIONS REGARDING THE CRIMINAL JUSTICE SYSTEM?
I THINK HE CAN INQUIRE -- I THINK HE CAN INQUIRE OF EXPERTS AS TO ANY MATTERS THAT ARE RELATED TO BIAS. SO IF HE HAD -- IF HE -- IF HE COULD MAKE A CASE OR SHOWING THAT A LINE OF INQUIRY IS RELEVANT TO BIAS -- WHETHER OR NOT SOMEBODY USES DRUGS AT A PARTICULAR POINT IN THEIR LIFE, I SEE NO CONNECTION BETWEEN THAT AND -- AND -- AND THEIR BIAS WITH REGARD TO EXPRESSING A SCIENTIFIC OPINION. IF THERE'S SOME SHOWING OF RELEVANCE TO BIAS, YES, HE CAN. BUT WE'D URGE YOU TO BE -- TO BE VERY CAREFUL AND CIRCUMSPECT ABOUT --
-- ABOUT -- JUDICIOUS IN ALLOWING SUCH -- SUCH INQUIRY.
NOW, THERE'S ONE STRAND OF THIS ARGUMENT THAT'S WORTH COMMENTING ON ALSO. I MEAN MR. HARMON TRIES TO SHOEHORN THE RELEVANCE OF THIS BY SUGGESTING THAT -- I THINK I READ HIS ARGUMENT AS SAYING THAT EVEN IF -- EVEN IF THESE LIFE-STYLE AND CHARACTER ISSUES AREN'T RELEVANT PER SE, HE SHOULD BE ABLE TO INQUIRE ABOUT THEM BECAUSE HIS EXPERTS THINK THAT THEY'RE RELEVANT. AND I BELIEVE THAT THE SPECIFIC STATEMENT THAT HE MADE IS THAT THERE ARE SCIENTISTS THAT HE INTENDS TO CALL WHO DISREGARD DR. MULLIS' OPINIONS BECAUSE OF WHAT THEY KNOW ABOUT HIS LIFE-STYLE AND CHARACTER. WELL, THIS I REGARD AS ASTOUNDING. THIS I THINK IS -- WELL, I CAN'T SERIOUSLY BELIEVE IT IN THE FIRST PLACE. I MEAN, WHO -- WHO -- I WANT TO KNOW WHO THESE PEOPLE ARE WHO SAY -- WHO ARE SCIENTISTS WHO SAY WE DISREGARD A SCIENTIFIC OPINION BECAUSE IT'S BEING ADVANCED BY SOMEBODY WHOSE -- WHOSE LIFE-STYLE AND CHARACTER WE DISAPPROVE OF. I MEAN, I WANT TO KNOW WHAT COLLEGE THEY WANT TO SO I CAN AVOID SENDING MY CHILDREN THERE. AND I VIEW THIS AS --
WELL, THE PROBLEM I'M HAVING WITH YOUR ARGUMENT RIGHT NOW IS, WHEN YOU LUMP TOGETHER LIFE-STYLE -- I AGREE WITH YOU LIFE-STYLE IS AN INQUIRY THAT IN THIS CONTEXT IS LIKELY, VERY LIKELY TO BE COMPLETELY IRRELEVANT.
WHETHER OR NOT SOMEBODY LIKES TO SURF OR THEY WENT TO CAL IN THE 60'S AND 70'S AND DID THE NORMAL THING CAL STUDENTS DO --
-- WHO CARES. BUT WHEN YOU TALK ABOUT CHARACTER, WHEN YOU LUMP LIFE-STYLE AND CHARACTER TOGETHER, THEN YOU'VE GOT A DIFFERENT INQUIRY. IF YOU'RE TALKING ABOUT CHARACTER IN THE SCIENTIFIC COMMUNITY, INTEGRITY IN SCIENTIFIC RESEARCH, INTEGRITY OF THE PROCESSES THAT THEY USE, THAT'S A DIFFERENT INQUIRY. SO I -- IF YOU'RE LUMPING THEM TOGETHER, YOU'RE CREATING PROBLEMS FOR ME. BECAUSE SCIENTISTS DO HAVE REPUTATIONS FOR THE QUALITY OF THEIR RESEARCH. WE DO CONSTANTLY HEAR ABOUT FRAUD IN SCIENTIFIC PUBLICATIONS AND FABRICATION OF RESULTS, THAT SORT OF THING. I MEAN, DO YOU THINK THAT'S A LEGITIMATE INQUIRY?
I THINK THAT THAT SURELY WOULD BE A LEGITIMATE INQUIRY IF THERE WAS ANY RECORD AT ALL THAT IT OCCURRED. I MEAN, THERE'S ABSOLUTELY NO SHOWING THAT THAT'S RELEVANT TO ANYBODY HERE.
BUT DO YOU AGREE WE SHOULD SEPARATE YOUR COMMENTS ABOUT LIFE-STYLE AND CHARACTER? BECAUSE I'M TALKING ABOUT CHARACTER IN THE SCIENTIFIC COMMUNITY.
WELL, IF BY CHARACTER WE MEAN SCIENTIFIC INTEGRITY, THAT I SEE AS RELEVANT POTENTIALLY, ALTHOUGH AGAIN, WE'D WANT YOU TO BE JUDICIOUS ABOUT HOW IT WAS PURSUED. BUT IF WE MEAN CHARACTER, FOR EXAMPLE, WHETHER OR NOT A PERSON IS KIND TO HIS -- WHETHER HE'S KIND TO HIS SPOUSE, WHETHER HE BEATS HIS DOG, WHETHER HE -- WHETHER HE VIOLATES TRAFFIC LAWS, IF THAT'S WHAT WE MEAN BY CHARACTER, THEN I THINK IT'S -- IT'S IRRELEVANT TO THE SCIENTIFIC MERITS. ALL RIGHT. SO I MEAN, IF WE DEFINE CHARACTER IN THE LIMITED WAY OF SCIENTIFIC INTEGRITY, SOMETHING THAT WOULD GO DIRECTLY TO VERACITY OF THE SCIENTIFIC OPINIONS, THEN THAT WOULD BE A SUITABLE AREA OF INQUIRY.
ALL RIGHT. ALL RIGHT. NOW, THERE'S A SECOND -- BEYOND THE IRRELEVANCE OF THIS INQUIRY, THERE'S A SECOND REASON TO AVOID IT. AND THAT IS THAT IT'S -- THAT ALLOWING INQUIRY INTO SUCH MATTERS, THE MATTERS THAT MR. HARMON PROPOSES IS VERY INTIMIDATING TO THE DEFENSE WITNESSES. NOT JUST TO DR. MULLIS, BUT TO ALL OF THE WITNESSES THAT WE MIGHT CALL. IN THIS CASE, WE'RE DEALING WITH VERY COMPLEX SCIENTIFIC ISSUES. IT'S NOT SIMPLE, AND IF WE'RE GOING TO GET TO THE BOTTOM OF THESE ISSUES, THE SCIENTISTS MUST KNOW THAT THEY CAN COME INTO COURT AND TELL WHAT THEY KNOW WITHOUT HAVING THEIR PERSONAL LIVES SCRUTINIZED AND THEIR GOOD NAMES DRAGGED THROUGH THE MUD. AND I THINK THE NET EFFECT OF EVEN THE FILING OF THIS MOTION IS TO HAVE A CHILLING EFFECT ON SCIENTISTS WHO MIGHT POTENTIALLY TESTIFY TO AN OPINION THAT MR. HARMON FINDS INCONVENIENT. THIS MOTION WITH ITS DISPARAGING COMMENTS ABOUT MULLIS IS PARTICULARLY DISTURBING TO US BECAUSE WE VIEW IT AS PART OF A CONTINUING COURSE OF CONDUCT BY MR. HARMON DESIGNED TO INTIMIDATE SCIENTISTS WHO EXPRESS THE VIEWS THAT HE DOESN'T LIKE IN THE COURTROOM TO SILENCE THEM AND PREVENT THEM OR INTIMIDATE THEM FROM COMING TO COURT. THERE HAVE BEEN A NUMBER -- MR. HARMON IS WELL KNOWN IN THE SCIENTIFIC COMMUNITY. HE'S WELL KNOWN FOR EXACTLY THIS SORT OF THING. THERE'S BEEN EXTENSIVE DISCUSSION BOTH IN SCIENTIFIC AND LEGAL PUBLICATIONS OF MR. HARMON'S EFFORTS TO HARASS AND INTIMIDATE THOSE SCIENTISTS WHOSE TESTIMONY HE DISLIKES OR DISAGREES WITH.
ONE EPISODE THAT WAS WIDELY PUBLICIZED, HE THREATENED TO HAVE ONE SCIENTIST WHO WAS TESTIFYING AGAINST HIM THROWN IN JAIL FOR AN EXPIRED DRIVER'S LICENSE. HE HAS ENGAGED IN POISON PEN LETTER WRITING CAMPAIGNS AGAINST SCIENTISTS WHOSE TESTIMONY HE DISAPPROVES OF, INCLUDING ATTEMPTING TO INTERFERE WITH THE PEER REVIEW PROCESS BY SENDING DISPARAGING INFORMATION ABOUT SCIENTISTS WHOSE TESTIMONY HE DISLIKES TO JOURNAL EDITORS. WE CAN DOCUMENT THIS AND WE WILL IN FACT PROVIDE YOU IN CHAMBERS COPIES OF THESE DOCUMENTS. HE HAS ALSO CIRCULATED EMBARRASSING PERSONAL INFORMATION ABOUT SCIENTISTS WHO HE DISLIKES TO THEIR COLLEAGUES WITHIN THE SCIENTIFIC COMMUNITY. I THINK A RECENT EPISODE, AN EPISODE THAT OCCURRED LAST FALL IN SACRAMENTO I THINK CAPTURES THE TONE AND TENOR OF WHAT GOES ON HERE. AFTER THE PUBLICATION IN NATURE OF AN ARTICLE BY ERIC LANDER AND BRUCE BUDOWLE --
WELL, MR. THOMPSON, BEFORE YOU GO TOO FAR -- TOO MUCH FURTHER DOWN THIS PARTICULAR ROAD, THE ISSUE THAT I HAVE TO DECIDE HERE IS THE SCOPE OF CROSS-EXAMINATION OF EXPERTS WHO TESTIFY HERE, AND THE CHARACTER AND PRACTICES OF ATTORNEYS IN OTHER CASES AND ON OTHER ISSUES DOESN'T STRIKE ME AS BEING NECESSARY FOR ME TO KNOW TO RULE ON THIS MOTION.
NO. I -- I DISAGREE, YOUR HONOR. I THINK IN ORDER TO UNDERSTAND -- IN ORDER TO UNDERSTAND THE MEANING TO OUR EXPERTS AND WHY THEY CONSIDER THIS PARTICULAR ACTION BY MR. HARMON SO INTIMIDATING, IT'S IMPORTANT TO UNDERSTAND HIS REPUTATION IN THE SCIENTIFIC COMMUNITY.
WELL, MR. THOMPSON, PERHAPS I DIDN'T CONVEY THE IMPRESSION STRONG ENOUGH. BUT WHEN I INDICATED TO YOU THAT I OBSERVED THIS TO BE A PREEMPTIVE STRIKE AND TO BE A DESIGN TO SENSITIZE THE TRIAL COURT AS TO ISSUES THAT WILL ARISE, I THOUGHT I PUT IN CONTEXT HOW I VIEW THIS PARTICULAR MOTION.
YES. I UNDERSTAND WHAT YOU'RE SAYING, YOUR HONOR. ON THE OTHER HAND, WHAT I WANT YOU TO UNDERSTAND IS THAT --
BUT SEE, WE HAVE THE SAME THING. IF YOU'RE CRITICIZING ONE SIDE FOR DISPARAGING OTHER PEOPLE IN CONDUCTING CAMPAIGNS OF LIBEL AND SLANDER, THEN TO COME IN AND START DOING THE SAME SORT OF THING, THEN THE ARGUMENT LOSES ITS POWER; WOULDN'T YOU SAY?
WELL, CERTAINLY. CERTAINLY. BUT WE'LL DOCUMENT -- WE'LL DOCUMENT WHAT WE'RE SAYING HERE.
SO WHY DON'T WE MOVE ON. LET'S TALK ABOUT THE LEGAL ISSUES. I UNDERSTAND THE SOCIAL IMPLICATIONS. I UNDERSTAND THE PRACTICAL IMPLICATIONS.
WELL, UNDERSTAND WHAT WE'RE ASKING FOR. WE'RE ASKING FOR AN IMMEDIATE RULING FROM YOU THAT THIS AREA OF INQUIRY BE OFF LIMITS, INQUIRY INTO PEOPLE'S PERSONAL HABITS, LIFE-STYLE AND SO ON --
BUT YOU ALSO JUST TOLD ME THAT THIS IS PREMATURE. IS IT PREMATURE OR DO YOU WANT ME TO RULE ABOUT IT TODAY?
WELL, WE WANTED -- WE WANT A RULING RIGHT NOW THAT THESE LIFE-STYLE INQUIRIES ARE GOING TO BE OFF LIMITS AND THAT ANY INQUIRY INTO PERSONAL BACKGROUND WILL BE STRICTLY LIMITED TO DIRECT RELEVANCE. WE'D ALSO LIKE A RULING FROM YOU THAT ANY FUTURE MOTIONS OF THIS TYPE BE FILED UNDER SEAL AND NOT -- AND NOT RELEASED TO THE PUBLIC. THE VERY FILING OF THIS MOTION IS AN INTIMIDATING ACT DESIGNED TO INTIMIDATE AND HAVING HAD THAT EFFECT. WHAT MR. HARMON IS SAYING TO THE SCIENTIFIC COMMUNITY IS, "YOU KNOW WHO I AM, YOU KNOW WHAT I'VE DONE TO OTHER SCIENTISTS, AND IF YOU COME INTO THIS COURT, I HAVE A DANGEROUS NEW WEAPON AT MY COMMAND. NOT ONLY WILL I BE ABLE TO DISPARAGE YOU IN PUBLIC, BUT I'LL BE ABLE TO INQUIRE INTO YOUR PRIVATE PERSONAL LIFE AND PRESENT THE RESULTS OF WHATEVER INQUIRY I DO IN FRONT OF A NATIONAL TELEVISION AUDIENCE." THAT IS INTIMIDATING, YOUR HONOR. WE'RE TALKING ABOUT -- THESE ARE NOT PERCIPIENT WITNESSES WHO ARE SUBJECT TO SUBPOENA. THEY'RE JUST SCIENTISTS WHO -- THEY DON'T HAVE TO COME HELP US OUT BY TESTIFYING. THEY DON'T HAVE TO DO THAT. SPEAKING -- AS A COLLEGE PROFESSOR MYSELF, I CAN TELL YOU, MY COLLEAGUES FIND THIS VERY INTIMIDATING. THEY FIND IT FRIGHTENING. IT'S DIFFICULT TO PERSUADE THEM TO COME IN AND PRESENT THEIR VIEWS IF THEY'RE AFRAID THAT THEY'LL BE SUBJECT TO THIS KIND OF ATTACK. SO WE'RE ASKING -- WE'RE ASKING YOU FOR A RULING NOW THAT WILL PROVIDE REASSURANCE TO OUR EXPERTS THAT THEY'RE NOT GOING TO HAVE THEIR GOOD NAMES DRAGGED THROUGH THE MUD BY THIS KIND OF SCRUTINY. AND WE WANT A RULING THAT HOLDS THAT ANY INQUIRY ALONG THESE LINES WILL BE STRICTLY LIMITED AND WE WANT SOME PROTECTIVE MEASURES TO PREVENT FUTURE MOTIONS OF THIS TYPE FROM BEING DISTRIBUTED TO THE PRESS. THAT'S WHAT WE'RE ASKING.
VERY BRIEF, YOUR HONOR.
WE SURE FLUSHED OUT A MOUTHFUL WITH JUST A LEGAL BRIEF ADDRESSING A VERY NARROW ISSUE. AT TIMES, I WASN'T SURE WHETHER PROFESSOR THOMPSON WAS RESPONDING TO MR. CLARKE'S PRESENTATION OR MINE AND FOR THE VERY SIMPLE PROPOSITION THAT THEY DON'T USE THAT WORD "RELIABILITY" THE WAY THE CASES USE IT. AND WHEN YOU CITE A KELLY-FRYE PUBLISHED OPINION TALKING ABOUT RELIABILITY, THAT'S IN THE ADMISSIBILITY CONTEXT. I AM PLEASED THAT THE DEFENSE WOULD BE HAPPY TO SHOW AN EXPERIMENT THAT MIGHT SUGGEST WHY OUR CONTROLS DIDN'T WORK TO SHOW WHAT ADEQUATE CONTROLS MIGHT BE. IT WOULD BE MUCH MORE MEANINGFUL AND IT WOULD BE MUCH MORE HELPFUL TO THE TRIER OF FACT IF THEY PUBLICLY OPENLY RETESTED EVIDENCE IN THIS CASE FOR THE FIRST TIME. I AM HAPPY THAT DR. MULLIS MIGHT BE CROSS-EXAMINED ON WHETHER HE'S CONSUMED LSD ON THE DAY OF HIS TESTIMONY. PERHAPS IT WOULD BE IN THE BEST INTEREST OF THE DEFENSE IF THEY REALLY ARE GOING TO CALL HIM. I THINK THAT'S REALLY IN DOUBT. OR PERHAPS THEY GET HIM IN A DETOX CENTER FOR A PERIOD OF TIME SO THAT WHEN HE TESTIFIES, I WON'T BE ABLE TO ASK HIM THAT.
THANK YOU, YOUR HONOR. I APPRECIATE THAT HIS OPINIONS DEPEND ON THE QUALITY OF HIS EXPERIMENTS, AND I INVITE HIM PUBLICLY NOT TO DO AN EXPERIMENT, BUT TO RETEST THE AMPLE REMAINING EVIDENCE IN THIS CASE SO THAT HE CAN ADDRESS A SCIENTIFIC REALITY RATHER THAN SOME OPINION THAT'S BASED ON PARTIAL INFORMATION THAT'S -- I'VE ALREADY WRITTEN TO HIM AND INVITED HIM TO DO THAT. I HAVE NOT RECEIVED A RESPONSE. THANK YOU, YOUR HONOR.
ALL RIGHT. ALL RIGHT. ANY OTHER ISSUES YOU WANT TO ADDRESS BEFORE WE ADJOURN FOR THE AFTERNOON?
YOUR HONOR, WE HAVE ONE FURTHER ISSUE REGARDING A STIPULATION. I HAVE NOT TALKED TO MR. HARMON TODAY ABOUT WHETHER --
EXCUSE ME. LET ME JUST -- EXCUSE ME, MR. BLASIER. LET ME JUST INQUIRE OF THE COURT REPORTER. HOW ARE YOU DOING?
YES, YOUR HONOR.
THERE'S AN ISSUE PERTAINING TO THREE ITEMS THAT WERE PROVIDED TO THE DEFENSE BACK IN OCTOBER WHICH HAVE BEEN RETURNED TO THE PROSECUTION SAVE ONE HALF OF ONE SWATCH FROM EACH ITEM. AND MR. HARMON HAS PROPOSED A STIPULATION AS TO HOW THAT WOULD BE DEALT WITH IN FRONT OF THE JURY. WE HAVE PROPOSED A COUNTER STIPULATION. I HAVE NOT HEARD FROM MR. HARMON AS TO WHETHER OUR PROPOSAL IS ACCEPTABLE. IF IT'S ACCEPTABLE, THEN THE ISSUE IS RESOLVED. IF NOT, THEN I THINK WE NEED TO DISCUSS IT.
WELL, MR. BLASIER IS STANDING UP. SO LET'S JUST SAVE TIME. I DON'T THINK I NEED TO HEAR A LOT ON THIS.
NOW, IT'S REALLY ACTUALLY A FAIRLY NARROW ISSUE. THE STIPULATION THAT MR. HARMON WANTS TO PRESENT TO THE JURY IS TO THE EFFECT THAT WE POSSESSED PART OF THESE ITEMS FOR A PERIOD OF TIME AND THAT THEY WERE CONSUMED IN TESTING BY THE DEFENSE.
NOW, THE PURPOSE OF HAVING ANY KIND OF STIPULATION AT ALL IS TO ALLOW THE PROSECUTION, WHICH THEY'RE ENTITLED TO DO, TO ACCOUNT FOR THE EVIDENCE THAT THEY MIGHT PRESENT TO THE JURY. THE EVIDENCE THAT THEY MIGHT PRESENT TO THE JURY AS TO THESE THREE SPECIFIC ITEMS IS IN THE SAME CONDITION IT WAS WHEN THEY GAVE IT TO US WITH THE EXCEPTION THAT THERE'S ONE HALF OF ONE SWATCH MISSING. WE ACCEPT THE FACT THAT THEY ARE ENTITLED TO EXPLAIN TO THE JURY THAT THERE IS ONE HALF OF ONE SWATCH MISSING BECAUSE IT WAS GIVEN TO THE DEFENSE. THAT SOLVES ANY PROBLEM THAT THEY MIGHT HAVE OF ACCOUNTING FOR THAT EVIDENCE IN FRONT OF THE -- IN FRONT OF THE JURY. WHAT WE OBJECT TO IS THAT THE JURY BE PROVIDED WITH ANY ADDITIONAL INFORMATION ABOUT WHAT WE MIGHT OR MIGHT NOT HAVE DONE WITH THOSE PIECES OF EVIDENCE. THAT DOES NOTHING TO FURTHER THEIR REQUIREMENT TO EXPLAIN WHY THIS LOOKS A LITTLE DIFFERENT THAN IT WAS AT SOME POINT IN TIME EARLIER THAN THAT. MR. HARMON PROPOSES THAT THE JURY BE TOLD WE USE THESE UP IN TESTING, AND THE DANGER OF THIS IS SET FORTH IN HIS COUNTER STIPULATION, WHICH WE CLEARLY REJECT, WHERE HE WANTS TO GO INTO, WELL, YOU GAVE IT TO THIS DOCTOR ON THIS DATE AND HE DIDN'T DO ANYTHING. THEN YOU GAVE IT TO THIS DOCTOR ON A SECOND DATE AND HE DID SOMETHING TO IT.
AND HE POINTS OUT IN HIS STIPULATION THAT THE CLEAR IMPLICATION OF THIS IS THAT WE WERE SHOPPING AROUND FOR EXPERTS, WE COULDN'T FIND ANYBODY THAT WOULD GIVE US RESULTS THAT WE WANTED, AND THE JURY IS GOING TO BE PRESENTED WITH THAT AS A LOGICAL INFERENCE FROM THAT INFORMATION. THAT'S CLEARLY I THINK IMPROPER ON THEIR PART WHEN THE ONLY PROBLEM THAT THEY HAVE IS ACCOUNTING FOR THE CONDITION OF THE EVIDENCE AS IT'S PRESENTED TO THE JURY. THOSE ARE IMPROPER INFERENCES. THEY AREN'T CORRECT INFERENCES. THERE'S ALL SORTS OF OTHER INFERENCES THAT YOU CAN DRAW FROM THE FACT THAT WE MAY HAVE USED SOMETHING IN TESTING SUCH AS WE WANT TO IMPEACH THEIR WITNESSES WITH OUR RESULTS, THAT WE GOT INCONCLUSIVE RESULTS, WE USED UNCONVENTIONAL TESTING. THERE'S ALL SORTS OF THINGS THAT COULD HAVE BEEN HAPPENED. IF WE CHOOSE TO PRESENT IT IN INFORMATION, OBVIOUSLY IT WILL BE PROVIDED TO THEM AND THEY'LL HAVE A RIGHT TO DEAL WITH IT. THE ONLY ISSUE PERTAINING TO THIS EVIDENCE IS EXPLAINING TO THE JURY THAT ONE HALF OF ONE SWATCH IS MISSING. WE HAVE NO OBJECTION TO THEM BEING TOLD IT'S NOT THERE BECAUSE IT WAS GIVEN TO US. THERE IS NOTHING ABOUT THAT REMAINING SWATCH OR REMAINING HALF SWATCH THAT NEEDS TO BE EXPLAINED TO THE JURY. IT'S NOT AS IF WE DUSTED IT WITH FINGERPRINT POWDER AND IT'S GOT POWDER ALL OVER IT AND THAT'S GOING TO BE APPARENT TO THE JURY IN WHICH CASE THEY WOULD HAVE TO EXPLAIN WHY THERE'S FINGERPRINT POWDER ALL OVER IT. THERE'S NOTHING UNIQUE ABOUT THAT ONE-HALF SWATCH THAT REQUIRES ANY EXPLANATION OTHER THAN THE HALF THEY DON'T SEE WAS GIVEN TO US, AND WE ARE PREPARED TO STIPULATE TO THAT. I THINK THAT IS A REASONABLE STIPULATION. IF THE PROSECUTION IS UNWILLING TO STIPULATE TO THAT, THEN WE WOULD ASK FOR AN ORDER FROM THE COURT THAT THAT BE THE LIMIT OF WHAT THE JURY IS TOLD ABOUT THESE ITEMS. CHAIN OF CUSTODY IS A NON ISSUE IN MY VIEW. WE WOULD NOT ONLY BE UNETHICAL, BUT WE WOULD BE FOOLISH IF WE RAISED ARGUMENTS ABOUT THE CHAIN OF CUSTODY OF AN ITEM DURING A PERIOD OF TIME WHEN WE HAD IT. NOW, WE WON'T DO THAT. I STATED IN MY LETTER BRIEF THAT WE WILL STIPULATE WE'RE NOT CHALLENGING THAT. WE'RE NOT GOING TO RAISE IT. WE'RE NOT GOING TO ASK ANY QUESTIONS ABOUT IT. IT IS A NON ISSUE, AND WE OBJECT TO THE PROPOSAL OF THE PROSECUTION TRYING TO USE THAT IN SOME NEGATIVE WAY AGAINST THE DEFENSE. AND SO I AGAIN OFFER THE STIPULATION THAT I SET FORTH IN MY LETTER TO MR. HARMON AND IN THE LETTER BRIEF, AND IF THAT'S NOT ACCEPTABLE, THEN I WOULD ASK THE COURT TO BE VERY LIMITING IN TERMS OF WHAT THE JURY IS TOLD ABOUT WHAT WE MAY OR MAY NOT DONE WITH EVIDENCE THAT WAS GIVEN TO US. FINALLY, I WOULD POINT OUT THAT THE COURT'S ORDER OF FEBRUARY 8TH DID NOT APPLY TO THESE PARTICULAR ITEMS. THIS HAPPENED LONG BEFORE THE ITEMS ON FEBRUARY 8TH. AND AS I INDICATED IN MY BRIEF, THE -- I WANTED TO RESERVE THE RIGHT TO RAISE THIS ISSUE AGAIN AS TO THE LANGUAGE THAT YOU HAD IN THE ORDER AS TO EXACTLY WHAT THE JURY WOULD BE TOLD. AND FINALLY, WE HAVE AN ADDITIONAL ISSUE THAT WE WOULD LIKE TO RAISE IN CHAMBERS THAT RELATES TO OTHER MATERIAL IN THE PAPERWORK SUBMITTED BY MR. HARMON AFTER WE DECIDE THIS PARTICULAR ISSUE.
WORKING BACKWARDS OR FROM LAST TO FIRST, THE FACT THAT YOUR ORDER DIDN'T ADDRESS THIS WAS MERELY BECAUSE IT WASN'T SOUGHT AT THE TIME THAT THE ITEMS WERE PROVIDED. I BELIEVE YOUR ORDER WAS LAWFUL. THE FIRST STIPULATION, THE STRAIGHTFORWARD ONE WAS COUCHED EXACTLY IN TERMS OF THE ORDER THAT YOU ISSUED ON FEBRUARY 8TH. SO THE FACT THAT IT DOESN'T APPLY TO IT, WE HAVE DISCUSSED IN ONE OF THESE MANY IN CHAMBERS DISCUSSIONS THIS VERY ISSUE AND YOU HAVE TOLD US THAT IT DOES APPLY TO IT.
SO -- NOW, HERE'S WHERE THE REAL PROBLEM BEGINS. I MEAN, WE'RE GOING TO TELL THE JURY IT'S MISSING? IT'S NOT MISSING. THOSE STIPULATIONS TELL YOU WHAT HAPPENED TO IT. THEY CONSUMED IT IN TESTING FOR THE PRESENCE OF EDTA. SO IT'S NOT MISSING. IT'S GONE. IT WAS CONSUMED. I NEED TO READ YOU SOMETHING, YOUR HONOR, THAT'S HAPPENED. THESE LETTERS PROVIDE INTERESTING CHRONICLES OF EVENTS AND PERHAPS SOME PEOPLE WOULD WISH THESE WERE DONE WITH DISAPPEARING INK. FEBRUARY 6TH, JUST BEFORE THE ORDER IN QUESTION, A LETTER SIGNED BY MR. BLASIER: "NOW THAT WE HAVE MADE OUR REQUEST TO EXAMINE THE EVIDENCE, THE PROSECUTION WANTS TO DEPRIVE US OF ACCESS TO THAT EVIDENCE BY SAYING THAT THEY INTEND TO HAVE -- INTEND TO DO EXTENSIVE ADDITIONAL TESTING ON MOST OF THE CRITICAL EVIDENCE, INCLUDING TESTING TO DETERMINE IF EDTA IS PRESENT ON MANY OF THE SAMPLES. "TO OUR KNOWLEDGE, THERE IS NO TECHNIQUE CURRENTLY IN USE FOR TESTING FOR THE PRESENCE OR ABSENCE OF EDTA AND FORENSIC SAMPLES."
NOW, THAT'S WHAT WAS WRITTEN ON MR. COCHRAN'S LETTERHEAD AND SIGNED BY MR. BLASIER ON FEBRUARY 6TH. THE PROBLEM I HAVE WITH THAT AND I SUGGEST YOU SHOULD HAVE WITH THAT IS, WE KNOW THAT THE TESTING ON THOSE SWATCHES WAS DONE ON JANUARY 8TH. AND HOW DO WE KNOW THAT? WELL, THE REASON I SOUGHT THOSE SAMPLES BACK EMPTY OR FULL IS BECAUSE FORENSIC SCIENTISTS DOCUMENT WHEN THEY OPEN AND CLOSE, DATES, INITIALS. AND WHAT WE RECEIVED BACK OTHER THAN THE SWATCH CUT IN HALF, THE BLOOD-STAINED SWATCH CUT IN HALF HAVE THE NAMES AND THE DATES OF THE HISTORY OF THOSE SAMPLES. SO SHOULD THE DEFENSE NOT ACCEPT THE VERY STRAIGHTFORWARD STIPULATION THAT IS TOTALLY CONSISTENT SIMPLY WITH THE CHRONOLOGY OF WHEN THEY PICKED IT UP, WHEN THEY RETURNED IT AND THE FACT THAT IT WAS CONSUMED IN TESTING AS YOU DECLARED WE WOULD BE ENTITLED TO PERSPECTIVELY FROM FEBRUARY 8TH, IF THEY CHOOSE TO REJECT THAT, THAT'S FINE. WE WILL INTRODUCE THOSE AND WE WILL DEMONSTRATE THAT THOSE ITEMS -- THOSE NAMES AND DATES WERE NOT ON THERE WHEN THEY WERE TURNED OVER TO THE DEFENSE IN OCTOBER AND THAT THEY WERE ON THERE WHEN WE GOT BACK ON MARCH 10TH. AND WE CAN SUBPOENA MR. RAGEL TO DESCRIBE WHERE HE TOOK THOSE THINGS.
NOW, I THOUGHT THIS WAS VERY STRAIGHTFORWARD. THE DEFENSE WANTS TO PRETEND THAT IT'S MISSING WHEN IN FACT IT'S BEEN CONSUMED. AND WE SIMPLY WANT TO ACCOUNT FOR THE FACT THAT IT WAS CONSUMED BY THEM IN TESTING. NOW, ONE MIGHT SAY, WELL, WHY DON'T WE JUST SAY "CONSUMED." WELL, THE JURORS MIGHT THINK THEY ATE THEM. SO IT'S VERY STRAIGHTFORWARD, YOUR HONOR. AND I UNDERSTAND THE FACT THAT THEY THOUGHT THIS WOULD BE DONE IN SECRET, BUT THE REALITY WAS, IT'S NOT A SECRET ANYMORE, JUDGE, AND WE WANT A VERY STRAIGHTFORWARD STIPULATION IN THE LIMITED MANNER THAT WE PROPOSE AND WE'LL MOVE ON WITH BUSINESS. OTHERWISE, WE'LL DO IT A LITTLE BIT -- WITH A LITTLE BIT MORE DIFFICULTY WITH MR. RAGEL AND GREG MATHESON AND GARY SIMS, BUT WE'LL DO IT THAT WAY. THANKS, JUDGE.
YOUR HONOR, AGAIN, WE HAVE THREATS FROM MR. HARMON ABOUT CALLING WITNESSES FOR A VERY SIMPLE ISSUE; AND THAT IS ACCOUNTING FOR HALF OF A SWATCH. WE'RE NOT SAYING IT'S MISSING. WE'RE NOT SAYING WE ATE IT. WE'RE SAYING IT WAS GIVEN TO US, TELL THE JURY THAT IT'S REAL EASY. IT DOESN'T TAKE A ROCKET SCIENTIST TO GO ANY FURTHER THAN THAT. MR. HARMON OBVIOUSLY WANTS TO DRAW ALL SORTS OF NEGATIVE INFERENCES FROM THE FACT THAT WE DID SOME TESTING REGARDLESS OF WHAT KIND OF TESTING WE DID. WHETHER WE LIKED THE RESULTS OR NOT, WHETHER WE'RE GOING TO USE THE RESULTS OR NOT IS IRRELEVANT TO THE ISSUE OF THEIR BEING REQUIRED TO EXPLAIN THERE'S A HALF A SWATCH MISSING. THAT'S REAL CLEAR. AND I RESENT THE NOTION THAT HE'S NOW THREATENING OTHER PEOPLE TO CALL, TO BRING IN TO RAISE ALL THESE NEGATIVE INFERENCES THAT ARE TOTALLY IMPROPER.
ALL RIGHT. THANK YOU, COUNSEL. I SEE IT'S GOING TO BE NECESSARY FOR THE COURT TO DRAFT AN INSTRUCTION TO THE JURY RATHER THAN EXPECTING THE PARTIES IN THIS CASE TO STIPULATE TO A RATHER SIMPLE FACTUAL MATTER.
YOUR HONOR, MAY WE APPROACH OFF THE RECORD? YOU HAD ASKED WHETHER THERE'S ANYTHING TO BE RAISED TODAY. WE HAD THOUGHT THERE WAS.
THE DEFENSE HAD COMPLAINED ABOUT THE RECENT DISCOVERY PROVIDED THEM ON VIDEOTAPE AND ON -- VARIOUS OTHER DOCUMENTARY MATERIALS. I DON'T KNOW IF THE COURT WANTED TO TAKE A RECESS OR WHAT.
THIS IS AN 11TH HOUR ATTEMPT TO STALL TRIAL AND I DON'T THINK IT CAN BE CHARACTERIZED IN ANY OTHER FASHION.
UNFORTUNATELY, WE'LL NEVER GET TO CROSS-EXAMINE DR. BLAKE BECAUSE THEY JUST DROPPED HIM LIKE A HOT POTATO FROM THEIR WITNESS LIST.
THE ANSWER THAT'S VERY CLEAR FROM THE EVIDENCE CODE AND THE CASE LAW IS NEVER. NEVER. THERE IS A COMPLETE WALL OF SEPARATION BETWEEN THE PRELIMINARY FACT DETERMINATION AND THE DETERMINATION OF FACT BY THE JURY.
IT GETS ME NERVOUS WHEN YOU SMILE LIKE THAT.
DID I HAVE A DREAM OR DID I SEE RON SHIPP BEING DRAKED OVER THE COALS ABOUT VIRTUALLY EVERY ASPECT OF HIS PERSONAL LIFE? DID I DREAM OR DID DENISE BROWN HAVE TO DO THE SAME THING?