Discovery conference

📄 Discovery conference — Tuesday, March 7, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\7\DISCOVERY-CONFERENCE.DOC

TRIAL

▲ Day 32 of 167

◀ Redirect examination of Det. Tom Lange (morning, part 5) Afternoon session opening ▶

Date: Tuesday, March 7, 1995 • Utterances: 43

A brief out-of-jury administrative session where the defense raised a discovery dispute over DNA test results from Nicole Brown Simpson's fingernail scrapings. Clark disclosed that DOJ testing found the DNA consistent with Nicole's own markers, with further Cellmark testing underway, while Blasier flagged a conflicting EAP marker result. The judge deferred resolution until after the afternoon jury session.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

# 2 THE COURT:

ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT. COUNSEL, WITH REGARDS TO THE IN CAMERA REVIEW OVER THE LUNCH HOUR, I HAVE NOT FINISHED READING THE FILE.

# 3 MR. DOUGLAS:

YOUR HONOR, ONE MATTER THAT OTHER COUNSEL HAS ASKED ME TO RAISE AND THERE WAS SOME MENTION DURING THE -- DURING THE REDIRECT OF MR. LANGE AS TO THE EXISTENCE OF SOME DNA RESULTS ON THE FINGERNAIL SCRAPINGS OF MISS SIMPSON. AND I WONDER IF MISS CLARK CAN EDUCATE ME AND THE OTHER MEMBERS OF THIS SIDE, BECAUSE WE ARE NOT FAMILIAR OR AWARE OF ANY REPORTS OR ANYTHING REFLECTING THAT IN FACT THERE HAVE BEEN DNA TESTS PERFORMED.

# 4 MR. COCHRAN:

YOUR HONOR, COULD WE HAVE DETECTIVE LANGE STEP OUTSIDE?

# 5 MS. CLARK:

WHY?

# 6 MR. COCHRAN:

FOR THE RESPONSE.

# 7 MS. CLARK:

HE OBVIOUSLY ALREADY KNOWS.

# 8 MR. COCHRAN:

WELL, I THINK THAT IS -- IT IS ABOUT HIM AND I WOULD LIKE HIM TO STEP OUT.

# 9 MS. CLARK:

HE IS THE INVESTIGATING OFFICER.

# 10 MR. COCHRAN:

IT DOESN'T MAKE ANY DIFFERENCE IN THIS INSTANCE.

# 11 THE COURT:

THIS IS A DISCOVERY ISSUE; NOT A TESTIMONIAL ISSUE. MISS CLARK, IS THERE ANY TESTING RESULTS AVAILABLE REGARDING THE NAIL SCRAPINGS?

# 12 MS. CLARK:

YES. DOJ HAS PERFORMED THOSE TESTS AND I BELIEVE THE DEFENSE EXPERT, ED BLAKE, WAS PRESENT WHEN THEY WERE PERFORMED, SO I GUESS THEY ARE NOT COMMUNICATING WITH THEIR EXPERTS, BUT THE RESULTS WERE THAT THE DNA EXPERTS WERE CONSISTENT WITH THE MARKERS OF NICOLE BROWN. AND WE ARE DOING FURTHER TESTING NOW AT CELLMARK. AS THE COURT IS PROBABLY AWARE, THE DOJ DOES D1S80 AND CELLMARK WILL BE DOING POLYMARKERS JUST TO FURTHER DEMONSTRATE THAT IT IS HER BLOOD UNDER THE FINGERNAILS, AND THAT WILL BE COMPLETE SHORTLY, IF IT ISN'T ALREADY. BUT I KNOW THE SAMPLES WERE COMPLETED AT DOJ AND THE RESULTS WERE CONSISTENT WITH NICOLE BROWN AND I THINK IT HAS ALREADY GONE TO CELLMARK. AND ROCK AND WOODY ARE HERE, YOUR HONOR, AND IF THE COURT WOULD LIKE ME TO, I CAN CALL UPSTAIRS AND GET MORE DEFINITIVE INFORMATION ON THAT.

# 13 THE COURT:

ALL RIGHT.

# 14 MS. CLARK:

SHALL I?

# 15 THE COURT:

WHY DON'T YOU DO THAT AND WE WILL TAKE THAT UP AT THE CONCLUSION OF THIS AFTERNOON.

# 16 MR. COCHRAN:

AREN'T THEY SUPPOSED TO COME TO YOUR HONOR, THESE RESULTS?

# 17 THE COURT:

I ASSUME THAT THEY DID.

# 18 MR. COCHRAN:

THESE RESULTS COME TO YOUR HONOR IS WHAT I'M ASKING?

# 19 THE COURT:

TO TELL YOU THE TRUTH, ALL I DO IS LOG IN.

# 20 MR. COCHRAN:

YOU GIVE THEM TO US RIGHT AWAY, DON'T YOU?

# 21 THE COURT:

YES.

# 22 MR. COCHRAN:

ALL RIGHT. SO THEY HAVEN'T COME.

# 23 MS. CLARK:

HOW MANY LAWYERS ARE GOING TO ADDRESS THIS ISSUE FOR THE DEFENSE?

KEY QUOTE

# 24 THE COURT:

MISS CLARK? MISS CLARK, HAVE YOUR ASSISTANTS BRING DOWN THAT INFORMATION SO WE CAN JUST DOUBLE-CHECK TO MAKE SURE WE ARE TALKING ABOUT THE SAME REPORTS. YOU MAY ALREADY HAVE IT.

# 25 MR. COCHRAN:

WE DON'T.

# 26 THE COURT:

WELL, WE WILL CHECK AND SEE.

# 27 MS. CLARK:

OKAY. GUYS, WOULD YOU BRING IT DOWN.

# 28 MS. LEWIS:

YOUR HONOR, MR. TOURTELOT IS HERE ONLY BECAUSE OF THE IN CAMERA. DOES THE COURT HAVE AN ESTIMATION SO HE CAN GO ON HIS WAY?

# 29 THE COURT:

WELL, MR. TOURTELOT, AS I INDICATED TO YOU, I DID NOT FINISH READING THOSE MATERIALS OVER THE LUNCH HOUR, BUT I WANT TO GO BACK INTO SESSION WITH THE JURY AND I WILL COMPLETE MY EXAMINATION OF THOSE MATTERS THIS AFTERNOON SOME TIME AND I WILL ISSUE A WRITTEN FINDING. ALL RIGHT.

# 30 MR. COCHRAN:

YOUR HONOR --

# 31 MR. BLASIER:

YOUR HONOR, I THINK THE CONFUSION IS OVER THE EAP MARKER WHICH I DON'T -- TO OUR KNOWLEDGE THERE HAS BEEN NO RETESTING ON THAT. THAT IS THE REPORT THAT INDICATES IT IS NOT NICOLE.

KEY QUOTE

# 32 THE COURT:

WELL, MR. BLASIER, LET'S TAKE THIS UP AFTER WE CONCLUDE WITH THE JURY THIS AFTERNOON.

# 33 MR. BLASIER:

THAT'S FINE.

# 34 THE COURT:

ALL RIGHT. ALL RIGHT. THANK YOU, COUNSEL. MISS CLARK, WHAT IS YOUR GUESSTIMATE AS TO HOW MUCH LONGER WE HAVE?

# 35 MS. CLARK:

DEPENDING ON THE NUMBER OF INTERRUPTIONS, IT SHOULD BE ANOTHER HALF HOUR TO 45 MINUTES.

# 36 THE COURT:

ALL RIGHT. LET'S HAVE THE JURY, PLEASE.

# 37 MS. LEWIS:

YOUR HONOR, DID THE COURT INTEND TO ISSUE THAT RULING THIS AFTERNOON, SINCE MR. FUHRMAN MIGHT BE TESTIFYING SHORTLY?

# 38 THE COURT:

I INTEND ON ISSUING IT WHEN I ISSUE IT.

# 39 MS. LEWIS:

THANK YOU, YOUR HONOR.

# 40 THE COURT:

I DON'T MEAN TO BE CURT, BUT I'VE GOT ABOUT EIGHTEEN OTHER THINGS THAT I'M DOING.

KEY QUOTE

# 41 MS. LEWIS:

I UNDERSTAND, YOUR HONOR, AND I HAVE ALREADY BUGGED YOU ABOUT ANOTHER RULING.

# 42 THE COURT:

I KNOW. I KNOW. I CAN ONLY DO THREE THINGS AT A TIME.

# 43 (BRIEF PAUSE.)

Temperature

procedural

Key Quotes (4)

Marcia Clark

THE RESULTS WERE THAT THE DNA EXPERTS WERE CONSISTENT WITH THE MARKERS OF NICOLE BROWN. AND WE ARE DOING FURTHER TESTING NOW AT CELLMARK.

Clark discloses the substance of undisclosed DNA results on the spot, revealing the prosecution's interpretation of the fingernail scraping evidence.

Robert Blasier

I THINK THE CONFUSION IS OVER THE EAP MARKER WHICH I DON'T -- TO OUR KNOWLEDGE THERE HAS BEEN NO RETESTING ON THAT. THAT IS THE REPORT THAT INDICATES IT IS NOT NICOLE.

Blasier identifies a specific marker result that contradicts the prosecution's narrative — a potentially exculpatory finding buried in the discovery dispute.

Lance A. Ito

I DON'T MEAN TO BE CURT, BUT I'VE GOT ABOUT EIGHTEEN OTHER THINGS THAT I'M DOING.

Rare candid moment from the judge revealing the administrative pressure of managing this complex trial.

Marcia Clark

HOW MANY LAWYERS ARE GOING TO ADDRESS THIS ISSUE FOR THE DEFENSE?

Illustrates the friction between the large defense team and prosecution over who controls the courtroom floor.

Evidence (3)

Informal

DOJ DNA test results from fingernail scrapings of Nicole Brown Simpson — results consistent with her own DNA markers

disclosed orally by Clark during discovery dispute

Informal

Cellmark polymarker testing on fingernail scraping samples — testing in progress or recently completed

referenced as pending confirmatory testing

Informal

EAP marker result from fingernail scrapings — identified by Blasier as inconsistent with Nicole Brown

raised as potentially exculpatory undisclosed result

Notable Exchanges (3)

Johnnie Cochran•Marcia Clark

Cochran asked Detective Lange to step outside before Clark responded to the DNA discovery question; Clark pushed back noting Lange is the investigating officer and already knows the information.

strategic

Johnnie Cochran•Lance A. Ito

Cochran pressed the judge to confirm that new DNA results flow through the court directly to the defense; Ito acknowledged the process and that the results hadn't yet arrived.

procedural

Cheri Lewis•Lance A. Ito

Lewis pressed Ito twice on the in camera ruling timeline given Fuhrman's imminent testimony; Ito responded with mild exasperation about his workload.

tense

Light Moments (2)

Lance A. Ito

Ito: 'I CAN ONLY DO THREE THINGS AT A TIME' — after admitting he hadn't finished reading the in camera file and had eighteen other matters pending.

Cheri Lewis

Lewis: 'I UNDERSTAND, YOUR HONOR, AND I HAVE ALREADY BUGGED YOU ABOUT ANOTHER RULING.' — self-aware acknowledgment of pestering the judge.

Witness Demeanor

(BRIEF PAUSE.)

Objections

None recorded

Proceeding 5184 • 43 utterances

Criminal Trial

Department 103