ALL RIGHT. THANK YOU, MR. COCHRAN. ALL RIGHT. I WAS GOING TO GET A REPORT FROM MR. HODGMAN AND FROM MR. SCHECK REGARDING OUR STATUS ON MICROSCOPES AND --
I CAN REPORT THAT I WAS ASKING MS. ROBERTSON WHETHER A FAX HAD COME THROUGH. I KNOW THAT MR. MORTON HAS LOCATED A LABORATORY THAT APPARENTLY HAS BEEN UPGRADED OF A CRIMINALIST NAMED CAROL HUNTER WHO I UNDERSTAND IS IN THIS AREA AND THAT HE'S CHECKED WITH HER, HE BELIEVES SHE HAS THE APPROPRIATE EQUIPMENT, HE'S MADE ARRANGEMENTS -- WE'VE MADE ARRANGEMENTS TO RENT THAT LABORATORY MONDAY, TUESDAY, WEDNESDAY OF NEXT WEEK TO EXAMINE THE TRACE EVIDENCE. AND I WAS -- I HAD ASKED HIM TO WRITE A LETTER TO THE COURT --
YOUR HONOR, SORRY TO INTERRUPT COUNSEL, BUT MR. HODGMAN NEEDS TO BE HERE TO SPEAK ON THIS ISSUE.
WELL, IN ANY EVENT, YOUR HONOR, JUST TO MAKE IT CLEAR, HE'S GOING TO -- I WAS HOPING THE LETTER WOULD BE FAXED. I WILL HAVE IT FAXED EITHER BY 5:00 O'CLOCK TO THE COURT AND TO THE PROSECUTION OR FIRST THING IN THE MORNING. BUT I'M SURE -- THAT'S THE NATURE OF THE ARRANGEMENT, AND I CAN NOTIFY MR. HODGMAN OF THAT.
ALL RIGHT. COUNSEL, DO YOU THINK THERE'S ANYTHING ELSE WE NEED TO PUT ON THE RECORD AS FAR AS THAT'S CONCERNED?
NO. I THOUGHT THERE WAS SOMETHING WITH RESPECT TO THE FINGERNAIL SCRAPINGS. I HAVE AN APPLICATION WITH RESPECT TO THAT.
47, 50 AND 78, AS YOU KNOW, I'VE BEEN STRIVING TO GET TO THE BOTTOM OF THAT FOR SOME WEEKS NOW. THE FINGERNAIL SCRAPING MATERIAL IS VERY SIMPLE, YOUR HONOR. AND DR. BLAKE, I'M SURPRISED HE HASN'T PASSED THIS ON TO THE DEFENSE. DR. BLAKE VIEWED THE RESULTS OF THE DOJ TYPING OF D1S80 ON THREE OF THE SCRAPING ITEMS.
YOUR HONOR, I WOULD OBJECT TO THIS. I THINK THE ONLY QUESTION IS WHETHER OR NOT A REPORT HAS BEEN PRODUCED.
MY OBJECTION, YOUR HONOR, IS THAT IF HE'S GOING TO START ANNOUNCING RESULTS IN COURT BEFORE WE'VE HAD A CHANCE TO SEE THEM, BEFORE THEY'VE BEEN SUBMITTED TO YOUR HONOR --
THANK YOU, YOUR HONOR. AT THE COMPLETION OF THOSE TESTS, WHEN WE KNEW WHERE THE RESULTS WERE HEADING, WE NOTIFIED THE COURT AND COUNSEL ON FEBRUARY 16TH THAT WE WERE SENDING THE EXTRACTED DNA FROM THOSE ITEMS TO CELLMARK. AND MR. CLARKE IS HANDLING CELLMARK AND HE WOULD BE GLAD TO FILL YOU IN ON THAT. BUT --
ALL RIGHT. WHAT ABOUT THIS PRELIMINARY RESULT THAT'S BEEN COMMUNICATED TO MISS CLARK?
DO YOU WANT TO KNOW WHAT IT IS? I MEAN IT'S NO SURPRISE. THEY'RE CONSISTENT WITH MISS BROWN. IT'S JUST HER BLOOD UNDER HER FINGERNAILS CONTRARY TO WHAT MR. COCHRAN SAID IN HIS OPENING STATEMENT.
I WISH I COULD TELL YOU. THEY'RE STILL DOING -- YOU KNOW, I DON'T WANT TO NAME ALL THE OTHER THINGS THEY'RE DOING AGAIN, BUT THERE'S STILL A LOT OF OTHER THINGS THAT THEY'RE DOING THAT ARE PROVIDING PROBATIVE ANSWERS IN THIS CASE. SO AT THE PACE THAT THE TRIAL IS GOING, WE'RE HOPING THAT THEY FINISH EVERYTHING SO THAT THEY CAN WRITE ONE MORE REPORT. AS YOU KNOW, THEY WROTE A VERY LENGTHY REPORT. ONCE THEY START THE REPORT WRITING PROCESS, THEY CAN'T DO ANY MORE WORK. SO I HAD TRIED TO MENTION THIS A COUPLE WEEKS AGO. IT MAY BE THAT BECAUSE MR. SIMPSON INSISTS ON HIS RIGHT TO A SPEEDY TRIAL, THAT THERE WILL BE NO TIME TO WRITE A FINAL RECORD. AND THIS IS WHY DR. BLAKE, GOING OVER THERE, PHOTOGRAPHING EVERYTHING, SEEING EVERYTHING AS IT'S UNPACKED, SPENDING HOURS THERE, YOU KNOW, IT SHOULDN'T SURPRISE ANYBODY, BUT HE PROBABLY WON'T BE A WITNESS IN THIS COURTROOM. BUT HE'S SEEN ALL THIS STUFF AS IT'S UNFOLDED IN THERE. SO I -- THERE IS NO REPORT. I CAN'T TELL YOU WHEN ONE WILL BE AVAILABLE. BUT THE DEFENSE HAS HAD AN OPPORTUNITY TO VIEW THESE THINGS AS THEY'RE UNPACKED. THEY TAKE THEIR OWN PHOTOGRAPHS OF THESE THINGS. THEY TAKE PHOTOGRAPHS OF THE RESULTS. HE'S THERE WHENEVER HE WANTS TO BE THERE. I THINK HE'S THERE A COUPLE TIMES A WEEK AT LEAST.
SURELY, YOUR HONOR. THAT TESTING IS COMPLETED ON THE ITEMS THAT MR. HARMON JUST DESCRIBED. THEIR REPORT SHOULD BE -- WILL BE IN THE COURT'S HANDS NO LATER THAN FRIDAY, MOST LIKELY BEFORE FRIDAY.
YOUR HONOR, FIRST OF ALL, AS A DISCOVERY MATTER, IT SEEMS TO ME HIGHLY IMPROPER FOR THE PROSECUTOR TO BE ABLE TO ELICIT, ATTEMPT TO ELICIT, POTENTIALLY ELICIT THROUGH THIS WITNESS TESTIMONY A, THAT HE'S INCOMPETENT TO REVEAL TO THE JURY -- AND I'LL EXPLAIN WHY AND HOW SEVERELY PREJUDICED WE ARE BY HIS TESTIFYING TO THIS EFFECT. HE IS NOT AN EXPERT ON DNA. HE'S NOT AN EXPERT ON GENETIC MARKER SYSTEMS AND HE'S NOT AN EXPERT -- HE HAS NO PERSONAL KNOWLEDGE AS TO HOW THESE TESTS WERE CONDUCTED, AND THAT WILL BE SIGNIFICANT AS THIS TRIAL UNFOLDS. PROSECUTION KNOWS THAT, INTENTIONALLY TRIED TO ELICIT THAT EVIDENCE THROUGH THIS WITNESS KNOWING ALL OF THAT. NUMBER TWO, THEY INTENTIONALLY ELICITED THIS TESTIMONY THROUGH THIS WITNESS WITHOUT GIVING US A REPORT BY THEIR OWN ADMISSION. NO REPORT WAS GIVEN TO THE COURT AND NO REPORT WAS GIVEN TO THE DEFENSE. I WOULD NOTE THAT THE PROCESS THAT MR. HARMON -- BECAUSE HE'S APPARENTLY IN CHARGE OF THE DEPARTMENT OF JUSTICE TESTING IN THIS MATTER -- IS PURSUING I THINK IS CONTRARY TO THE COURT'S INITIAL INSTRUCTIONS AS TO HOW TEST RESULTS WERE SUPPOSED TO BE COMMUNICATED. THAT IS, HIS PURPOSEFUL PRACTICE IS TO ALLOW THE DEPARTMENT OF JUSTICE TO TEST SIGNIFICANT ITEMS SUCH AS THE FINGERNAILS. THEY GET RESULTS, BUT THEY DON'T FORM -- THEY DON'T SEND A REPORT ABOUT THOSE RESULTS. INSTEAD, THEY'RE WAITING UNTIL THEY FINISH ALL TESTING ON VARIOUS OTHER KINDS OF ITEMS. AND THEN AT SOME POINT DOWN THE LINE, PROBABLY IN THE MIDDLE OF HIS TESTIMONY FOR MR. SIMS FOR THE DEPARTMENT OF JUSTICE, THEN THEY'LL GIVE US A REPORT. NOW, THAT IS CONTRARY TO THE UNDERSTANDING I HAD AS TO HOW WE WERE PROCEEDING WITH THE EVIDENCE IN THIS CASE. THAT IS, FROM THE MOMENT OF THE SPLIT HEARING ON FORWARD, THIS COURT WANTED TO KNOW WHAT RESULTS WERE OBTAINED BY THE LAB WITH RESPECT TO SPECIFIC ITEMS OF EVIDENCE AS SOON AS POSSIBLE, BECAUSE WE WERE IN THIS VERY UNUSUAL POSITION THAT THE PROSECUTION IS ALLOWED TO TEST WHENEVER THEY WANT AND WHATEVER PROCESS THEY WANT AT WHATEVER SPEED THEY WANT, ITEMS OF EVIDENCE IN THIS CASE, TO TIME IT TO GET A STRATEGIC ADVANTAGE. AND THIS IS AN EXAMPLE OF EXACTLY WHAT THEY'RE TRYING TO DO. NOW, DR. BLAKE HAS COMMUNICATED TO ME SOMETHING ABOUT THE FINGERNAIL SCRAPINGS WITH RESPECT TO HOW THEY WERE PACKAGED AND HOW THIS EVIDENCE IS COMING IN. I WANT TO GIVE THE COURT A PREVIEW AND I THINK THE COURT'S ALREADY SEEN SOME OF THIS WITH RESPECT TO THIS EVIDENCE. WHAT WE HAVE FIRST OF ALL IS A GENETIC MARKER TEST PERFORMED BY MR. MATHESON OF THE LAPD OF FINGERNAIL SCRAPINGS FROM ONE OF 10 NAILS I SUPPOSE OR MAYBE MORE THAN ONE OF 10 NAILS. WE DON'T KNOW. WE'LL HAVE TO HEAR FROM HIM. THERE'S NOTHING IN THE RECORDS TO INDICATE WHICH NAILS HE SCRAPED AND WHAT BLOOD HE TOOK FROM WHICH HAND. THAT WILL BE IMPORTANT BECAUSE THERE'S NO QUESTION THAT BLOOD WAS UNDER THE NAILS OF NICOLE BROWN SIMPSON. AND SOME OF THAT WOULD UNDOUBTEDLY BE HER BLOOD, BUT AS TO WHICH SCRAPING FROM WHICH NAIL MIGHT HAVE REVEALED GENETIC MATERIAL FROM ANOTHER PERSON WITH WHOM SHE WAS STRUGGLING IS GOING TO BE A KEY ISSUE IN THIS CASE. THEY ISSUED A REPORT. MR. MATHESON ISSUED A REPORT SAYING THAT FINGERNAIL SCRAPINGS FROM SOME NAIL, WE DON'T KNOW WHICH, OR MAYBE MORE THAN ONE NAIL CAME BACK ON THE EAP SYSTEM AS A B. IN HIS REPORT, HE INDICATES THAT THAT EXCLUDES NICOLE BROWN SIMPSON, O.J. SIMPSON AND RONALD GOLDMAN. THERE IS A QUALIFIER THERE THAT SAYS OF COURSE IF THIS WAS DEGRADED, THEN MAYBE WE CAN'T TEST THIS RESULT. NOW, THAT'S AN ISSUE THAT'S GOING TO BE LITIGATED WITH EXPERTS FROM BOTH SIDES AS TO WHETHER THAT'S A REAL B OR NOT, WHETHER THAT'S GENETIC MATERIAL FROM SOMEBODY ELSE UNDER HER NAILS OR NOT. AND THE PROSECUTION KNOWS THAT VERY WELL AND EVERYBODY KNOWS THAT VERY WELL, THAT THAT DEBATE IS COMING. THAT'S EVIDENCE OF INNOCENCE. IT COMES OUT OF THEIR LABORATORY. THE TRUTH OF THE MATTER IS -- AND THEY KNOW IT WELL -- A, DNA TEST RESULTS FROM OTHER NAILS THAT MAYBE HAVE GENETIC MARKERS THAT MAY HAVE THE GENOTYPE OF NICOLE BROWN SIMPSON, IT'S -- YOU KNOW, AND WOULD BE EXPRESSED AS SOME STATISTICAL ESTIMATE AS TO HOW RARE THAT IS. BUT SOME BLOOD FROM SOME NAIL THAT MAY BE HERS IS NOT NECESSARILY RELEVANT TO THIS ISSUE, NUMBER ONE. AND NUMBER TWO, IT IS OF COURSE POSSIBLE, MORE THAN POSSIBLE, IT IS A SCIENTIFIC FACT THAT IT'S POSSIBLE FOR ONE -- ANOTHER INDIVIDUAL WHO IS NOT NICOLE BROWN SIMPSON TO HAVE AN EAP GENETIC MARKER OF B -- HERS IS AB -- AND HAVE A DNA MARKER THAT IS THE SAME AS NICOLE BROWN SIMPSON'S. SO BOTH OF THOSE ISSUES ARE TO BE LITIGATED AND OBTAINED. THE PROSECUTION KNOWS THAT FULL WELL. WHAT HAPPENED HERE IS, THEY, IN VIOLATION OF OUR DISCOVERY RULES, IN AN ATTEMPT TO GAIN A STRATEGIC ADVANTAGE, PURPOSEFULLY ASKED A QUESTION OF A WITNESS THAT WAS OBVIOUSLY BEYOND THE WITNESS' PERSONAL KNOWLEDGE AND EXPERTISE IN ORDER TO BRING THAT OUT BEFORE THIS JURY. THAT WAS WRONG. THAT IS IN BAD FAITH AND WE SHOULD GET A CURATIVE INSTRUCTION. THE CURATIVE INSTRUCTION THAT I WOULD PROPOSE WE DRAFT CAREFULLY FOR THE COURT'S CONSIDERATION FOR TOMORROW WOULD HAVE TO DO WITH INSTRUCTING THIS JURY IT WAS IMPROPER TO ASK THAT QUESTION OF THIS WITNESS, CERTAINLY, IT WAS PART AND PARCEL OF TRYING TO TAKE ADVANTAGE OF FAILURE TO TURN OVER RESULTS IN A TIMELY FASHION TO THE DEFENSE AND THAT IT WAS MISLEADING TO THE JURY AND THEY SHOULD AWAIT THE TESTIMONY OF THE PROPER WITNESSES TO CONSIDER THAT EVIDENCE.
MAY I BE HEARD BRIEFLY BEFORE MR. HARMON IS HEARD ON THE TECHNICAL ISSUES CONCERNING THIS MATTER? THE COURT IS AWARE OF THE OPENING STATEMENT GIVEN MY MR. COCHRAN IN WHICH HE MISLEADINGLY TOLD THIS JURY THAT BLOOD MARKER EAP TESTED OUT TO A B, WHICH WAS INCONSISTENT AND THEN HIGHLIGHTED HALF A PARAGRAPH OF THE EXPERT'S WORK. IT IS THE BALANCE OF THE HALF PARAGRAPH THAT WAS NEVER SHOWN TO THE JURY INDICATED CLEARLY THAT THIS WAS NOT NECESSARILY INCONSISTENT WITH NICOLE FOR THE REASONS THAT THE COURT IS AWARE OF THE MANNER IN WHICH THE BA TYPE DEGRADES. MR. COCHRAN NEVER TOLD THEM THAT. MR. COCHRAN HOWEVER SHOULD HAVE BEEN AWARE OF THE FACT THAT DNA TESTING WAS ONGOING FOR THOSE NAIL SCRAPINGS. HE CHOSE TO STAND UP BEFORE THIS JURY AND GIVE AN OPENING STATEMENT BASED ON HALF A LOAF. HE MISLED THE JURY AS TO WHAT HE DID KNOW AND DIDN'T TELL THE JURY THAT THERE WAS OTHER TESTING GOING ON AND TOOK THE RISK THAT THAT TESTING WOULD ABSOLUTELY REFUTE EVERYTHING HE SAID AND HE HAS NOW -- HE'S NOW GOING TO SUFFER FOR THAT RISK TAKEN BECAUSE THE DNA TESTING HAS PANNED OUT EXACTLY AS EXPECTED. OF COURSE, IT'S THE BLOOD UNDER HER FINGERNAILS. THE PEOPLE HAVE DONE NOTHING WRONG IN ELICITING FROM THIS DETECTIVE ON A TOTALLY SEPARATE ISSUE THE MANNER IN WHICH HE CONDUCTED HIS INVESTIGATION. THE RESULTS HAVE NOT BEEN COMMUNICATED TO THE JURY THROUGH THAT WITNESS, YOUR HONOR. THE ONLY THING THE DETECTIVE TESTIFIED TO AS BEST I CAN RECALL IS THAT HE WAS AWARE OF THOSE RESULTS AND IT DID NOT CAUSE HIM TO CHANGE THE FOCUS OF HIS INVESTIGATION. THAT'S AN OBLIQUE REFERENCE. NEVERTHELESS, IT WENT TOWARD THE SAME AVENUE OF TESTIMONY WHICH WAS IN RESPONSE TO THE CROSS-EXAMINATION ON THAT VERY SAME TOPIC. BUT FOR COUNSEL TO GET UP AND CALL THIS MISCONDUCT WHEN THEIR OWN EXPERT KNOWS VERY WELL WHAT THE RESULTS ARE BECAUSE HE'S STANDING RIGHT OVER THERE SHOULDERS WATCHING THEM DO THE TESTING IS ABSURD. IF THEY DON'T COMMUNICATE WITH THEIR OWN EXPERT, THE PEOPLE CAN'T HELP THEM. YOU KNOW, IF THEY DON'T WANT TO CALL THE GUY AND ASK WHAT HAPPENED WITH THIS OR WHAT HAPPENED WITH THAT, IF I WAS THEM, I WOULD. SOMETHING LIKE THIS WHERE I STOOD UP BEFORE THE JURY AND MAKE PROMISES THAT I KNOW MIGHT NEVER BE DELIVERED, IN FACT, MIGHT COME BACK TO SLAP ME IN THE FACE, I WOULD BE CALLING DAILY TO FIND OUT WHAT THOSE RESULTS ARE. COUNSEL HASN'T DONE THAT. I MEAN IF THAT'S THE WAY HE CHOOSES TO CONDUCT HIS DEFENSE, THAT'S FINE. THAT'S FOR HIM TO CHOOSE. BUT TO TURN AROUND AND BLAME THE PEOPLE BECAUSE TESTING THAT WAS ONGOING AT THE TIME HE MADE THE REPRESENTATIONS AND CHOSE NOT TO TAKE INTO ACCOUNT IN HIS OPENING STATEMENT HAVE NOW COME TO FRUITION IN THE PURVIEW OF KNOWLEDGE OF HIS EXPERT IS NOTHING TO BLAME THE PEOPLE FOR. I DON'T SEE WHY THE PHONE CALL WASN'T MADE BETWEEN THEM, BUT THAT'S NOT SOMETHING I CAN CONTROL.
BUT IN TERMS OF FAIRNESS IN DISCOVERY PROCEDURE THOUGH, I AGREE THAT THE QUESTION TO DETECTIVE LANGE WAS RATHER OBLIQUE; KNOWING THAT CERTAIN TESTING WAS DONE OF THE NAIL SCRAPINGS OF NICOLE BROWN SIMPSON AND KNOWING THE RESULTS OF THOSE TESTS, DID THAT CAUSE YOU TO CHANGE THE FOCUS OF YOUR INVESTIGATION, PRETTY INDIRECT WAY OF SAYING THOSE THINGS. BUT IT DOES -- THE KICKER THERE THOUGH IS THAT YOU SAID -- YOUR QUESTION WAS, KNOWING DNA RESULTS, WHICH MR. COCHRAN HAD SAID A LESSER TEST HAD BEEN USED DURING HIS OPENING STATEMENT. SO THEY'RE DIFFERENT THINGS. AND THE QUESTION IS WHETHER AS A MATTER OF DISCOVERY AND FAIRNESS, YOU SHOULD BE ABLE TO ELICIT FROM WITNESSES TESTIMONY REGARDING ITEMS THAT WE HAVE NOT GOTTEN REPORTS BACK ON REGARDING THE TEST RESULTS. THAT'S THE ISSUE.
YEAH. AND I ASKED HIM ABOUT -- I THINK I EVEN CONFINED IT MORE NARROWLY TO DOJ. DID I JUST SAY DNA?
I DEFER TO THE COURT'S MEMORY THEN. MINE IS CERTAINLY NOT AT ITS HIGHEST PEEK TODAY ESPECIALLY. BUT I CONFINED IT AND I STATED IT THAT WAY BECAUSE I KNOW, I KNOW THAT ED BLAKE, THEIR EXPERT, IS STANDING AND WATCHING THE TESTING.
LET'S PUT THE SHOE ON THE OTHER FOOT. LET'S ASSUME THEY'RE ASKING THE QUESTIONS AND THEY GET A SIMILAR QUESTION AND ANSWER WITHOUT HAVING TURNED OVER THE REPORT YET.
BUT IF MY EXPERT IS STANDING THERE AND KNOWS THE RESULTS, I DON'T THINK I HAVE ANYTHING TO COMPLAIN ABOUT. I DON'T THINK IT'S ANY DIFFERENT. THEY HAVE THEIR EXPERT STANDING THERE WATCHING THE TESTING GOING ON, FULLY AWARE OF WHAT THE RESULTS ARE, AND NOW THEY'RE BLAMING US BECAUSE THEY HAVEN'T COMMUNICATED WITH HIM? I MEAN THAT SEEMS TO ME RIDICULOUS. THEY ARE -- THEY CERTAINLY SHOULD HAVE A SYSTEM SET UP WHERE THEY ARE COMMUNICATING ABOUT WHAT THE RESULTS ARE, AND THAT'S WHY I THOUGHT THERE WAS NO DISCOVERY ISSUE WITH RESPECT TO THIS BECAUSE I KNOW HE'S THERE PRIVY TO THE RESULTS MOMENT BY MOMENT AS THEY COME OUT. SO HOW COULD THIS POSSIBLY BE --
SEE, I'M HAVING TO MAKE THAT ASSUMPTION. YOU'RE ASKING ME TO MAKE AN ASSUMPTION THAT MR. BLAKE IS AWARE OF THIS AND HAS COMMUNICATED WITH DEFENSE COUNSEL. YOU'RE ASKING ME TO MAKE THAT ASSUMPTION.
NO, NO, THAT'S NOT AN ASSUMPTION. I THINK THAT THE PROCEDURES PUT INTO PLACE BY THIS COURT WITH RESPECT TO TESTING AT DOJ WARRANT THAT ED BLAKE HAD TO BE NOTIFIED AND BE PRESENT FOR ALL TESTING CONDUCTED.
HE HAS TO HAVE ACCESS AND HE CAN WATCH IT, BUT THAT DOESN'T NECESSARILY MEAN HE KNOWS WHAT THE RESULTS ARE.
YEAH. AND I THINK IT'S A FAIR ASSUMPTION TO MAKE AND I THINK MR. HARMON CAN BETTER ADDRESS THIS ISSUE. BUT I WILL TELL THE COURT THIS. I ASKED THE QUESTION IN GOOD FAITH BELIEVING THAT THE DEFENSE HAD TO KNOW OF THE RESULT BY DEFINITION IF I KNEW OF THE RESULT. BUT KNOWING THAT THEIR EXPERT HAD TO BE PRESENT FOR ALL TESTING -- AND THAT HAS SLOWED US DOWN BY THE WAY IMMEASURABLY, KNOWING THAT HE HAS TO BE PRESENT FOR ALL THE TESTING.
MISS CLARK, MY INCLINATION IS TO INSTRUCT THE JURY TO IGNORE THAT QUESTION AND ANSWER.
MISS CLARK, IT'S REALLY A DISCOVERY ISSUE. IF WE DON'T HAVE A REPORT THAT'S BEEN COMMUNICATED TO THE COURT AND THEN OFFICIALLY TURNED OVER TO THE DEFENSE, IS IT REALLY FAIR FOR YOU TO BE ASKING QUESTIONS ABOUT IT AT THIS POINT, BECAUSE IN ALL LIKELIHOOD, IF THE RESULTS ARE AS YOU SAY, YOU'LL BE ABLE TO PRESENT THAT INFORMATION TO THE JURY AT A LATER TIME. BUT TO HAVE DONE THAT THROUGH DETECTIVE LANGE WAS PROBABLY NOT A FAIR WAY TO DO IT AT THIS POINT.
BUT THAT'S WHAT I'M TRYING TO INDICATE TO THE COURT, IS THAT THE PEOPLE -- I WAS ACTING IN GOOD FAITH.
I UNDERSTAND YOU'RE ACTING IN GOOD FAITH. I'M NOT QUESTIONING THAT. YOU HAD THE INFORMATION AND YOU BELIEVED THAT THE OTHER SIDE ALSO HAD THAT INFORMATION.
THAT MAY OR MAY NOT BE TRUE. YOU'RE ASKING ME TO MAKE AN ASSUMPTION THAT DR. BLAKE KNOWS THIS AND HAS COMMUNICATED IT WITH MR. SCHECK AND MR. DOUGLAS. I DON'T KNOW THAT.
WELL, LET ME ASK THE COURT THIS. IF DR. BLAKE DOES IN FACT KNOW THE RESULT, THEN WHERE DOES THE DISCOVERY OBLIGATIONS LIE AT THAT POINT? ONCE THEIR EXPERT KNOWS, WHAT ARE THE PEOPLE'S OBLIGATION WITH RESPECT TO COMPELLING HIM TO TELL THEM WHAT THE RESULTS ARE?
BUT OUR AGREEMENT HAS BEEN THAT ALL LABS DOING TESTING COMMUNICATE THE RESULTS TO ME AND THEN I -- BECAUSE OF OUR LEAK PROBLEMS, AND THEN I DISSEMINATE THOSE RESULTS TO THE PARTIES, WHICH HAS GONE JUST FINE --
UH-HUH, WHICH HAS BEEN GOOD. BUT I REALLY -- PLEASE, MAY I ASK THE COURT TO HEAR FROM MR. HARMON ON THIS? THERE IS -- HE DOES HAVE --
WELL, HOW IS MR. HARMON'S COMMENT GOING TO CHANGE MY VIEW THAT WE ARE -- OUR AGREEMENT WAS TO HAVE THESE THINGS COMMUNICATED TO THE COURT FIRST. MR. HARMON.
I ALWAYS HAVE BEEN, YOUR HONOR. I WASN'T HERE WHEN YOU -- THIS ARRANGEMENT WAS SET UP. I UNDERSTAND THE RESULTS WERE SUPPOSED TO GO TO THE COURT.
AS THEY HAVE. WHAT YOU DON'T REALIZE IS, WHEN I'M NOT HERE ON FRIDAYS, I'M UP AT THE DOJ LAB LOOKING AT THINGS THEY'RE DOING AND I'M SEEING RESULTS, AND I'M DOING THAT SO I CAN BE AN EFFECTIVE PROSECUTOR IN THIS CASE, SO I CAN SEE WHAT'S GOING ON SO THAT WE CAN MAKE DECISIONS ON WHERE TO SEND THINGS. IT SOUNDS TO ME LIKE I VIOLATED YOUR COURT ORDER BECAUSE WHEN I COME BACK ON MONDAY, I TELL THE REST OF THE TEAM WHAT'S GOING ON UP THERE.
WELL, SURE. THEY HAVEN'T SAID THEY HAVEN'T. I DIDN'T BRING MY METICULOUS NOTES DOWN HERE THAT SHOW EVERYTHING THAT DR. BLAKE DID. YOU KNOW, I HAVE TO REMIND YOU, THIS IS THE SAME DR. BLAKE THAT MR. COCHRAN WAS TRAPPING AROUND SOME DECLARATION THAT THEY WERE GOING TO FILE IN A PRESS CONFERENCE, AND THAT THING HAS DISAPPEARED FROM THE FACE OF THE EARTH. THIS IS THE SAME -- THIS IS THE SAME GUY.
THEY HAVEN'T SAID THEY DON'T KNOW THAT, YOUR HONOR. AND I MEAN, I THINK THAT'S -- YOU KNOW, MR. SCHECK HAS NEVER BEEN SHY ABOUT SAYING WHAT HE KNOWS AND WHAT HE DOESN'T KNOW.
I'LL TELL YOU EXACTLY WHAT I KNOW AND I DON'T KNOW. I KNOW THAT MISS CLARK JUST SAID SOMETHING THAT WAS COMPLETELY UNTRUE, AND SHE SHOULD KNOW IT, MR. HARMON KNOWS IT AND HE SHOULD TELL IT TO THE COURT.
THEY DIDN'T SEND ANY FINGERNAIL SCRAPINGS TO BE TESTED TO THE DEPARTMENT OF JUSTICE UNTIL AFTER THE OPENING STATEMENT IN THIS CASE, LONG AFTER. SO WHEN MISS CLARK GETS UP HERE AND SAYS OH, WE SHOULD KNOW ABOUT THIS ONGOING TESTING AND I'M IN TOTAL GOOD FAITH, TO MY KNOWLEDGE, THAT'S NOT TRUE. SECONDLY -- AND THIS POINT HAS TO BE --
KEY QUOTEMR. SCHECK, NO, NO, NO. WAIT, WAIT. EVERYBODY WANTS TO GET -- I'M ONLY INTERESTED IN ONE THING. DOES DR. BLAKE KNOW ABOUT THE FINGERNAILS TESTING?
HE REPORTS TO ME THINGS THAT HE OBSERVES WITH RESPECT TO THE TESTING. I KNEW THAT THEY WERE PERFORMING PCR TESTS. THERE'S A BIG DISTINCTION THAT THE COURT MUST REALIZE HERE, AND THAT IS, IT'S ONE THING TO GO AND TAKE A PICTURE OF A BINDLE THAT HAS POWDER IN IT AND A SET OF FINGERNAILS AND GO AND TAKE A PICTURE OF A STRIP. THE NECESSITY OF A REPORT -- AND I DEMAND THAT THEY GIVE US THE REPORTS ON THE ITEMS AFTER THEY FINISH THE TESTING ON THE ITEMS SO THIS DOESN'T HAPPEN. AND THAT WAS OUR AGREEMENT. BECAUSE I DON'T KNOW WHETHER THE DEPARTMENT OF JUSTICE IS SAYING THAT THERE WAS AN EAP FINDING ABOUT A SCRAPING ON A FINGERNAIL THAT CAME FROM THE LEFT HAND OR FROM A PINKIE OR FROM A FOREFINGER, AND THEN THERE'S ANOTHER DNA TEST RESULT FROM A SCRAPING FROM ANOTHER FINGERNAIL. WE DON'T KNOW HOW THEY ARE GOING TO INTERPRET THOSE TESTS. WE DON'T KNOW WHAT THEY'RE FORMALLY SAYING THEIR RESULTS ARE. WE -- YOU CAN'T KNOW AND CAN'T MAKE AN INTELLIGENT INTERPRETATION UNTIL YOU SEE IT. AND I WOULD POINT OUT SOMETHING TO THE COURT. AN EAP TEST IS A GENETIC MARKER. IT IS NOT A LESSER TEST. IT IS A DIFFERENT TEST.
MR. SCHECK, I DON'T NEED TO KNOW THIS. I DON'T NEED TO KNOW THIS THIS AFTERNOON. ALL I NEED TO KNOW --
-- IS, DOES DR. BLAKE KNOW ABOUT THE RESULT THAT MISS CLARK MENTIONED AND HAS HE COMMUNICATED IT WITH YOU.
HE COMMUNICATED TO ME CERTAIN RESULTS. I DON'T KNOW ABOUT PCR TESTING, THAT THEY WERE TESTING THE FINGERNAILS. WHICH MARKERS, WHICH NAILS, WHETHER IT WAS GOING TO CELLMARK, NO, I DID NOT HAVE THAT. AND WE WERE AWAITING REPORTS FROM THEM. AND I THINK I MENTIONED THAT TO THE COURT IN CHAMBERS, THAT WE WANTED THOSE REPORTS. AND IT WAS THE SAME PROBLEM WE HAD BEFORE WITH MR. HARMON WHERE HE WAS TELLING PEOPLE ABOUT REPORTS ON SAMPLES THAT HADN'T BEEN TESTED YET, AND THAT'S CLEAR FROM THE RECORD.
ALL RIGHT. THANK YOU, COUNSEL. LET ME JUST MAKE THIS OBSERVATION. I THINK AS A MATTER OF FAIRNESS, THE REASON WE HAVE RECIPROCAL DISCOVERY IS SO BOTH SIDES KNOW WHAT'S GOING ON HERE. WE'RE NOT JUST TURNING OVER CARDS BLINDLY AND NOT KNOWING WHAT THEY ARE. I DON'T THINK IT'S APPROPRIATE FOR THE PROSECUTION OR EITHER SIDE TO ASK QUESTIONS REGARDING SCIENTIFIC TESTING THAT HASN'T BEEN COMPLETELY REVEALED TO THE OTHER SIDE. THAT'S OUR UNDERSTANDING. SO, MR. SCHECK, IF YOU'LL OFFER AN INSTRUCTION REGARDING THAT QUESTION AND ANSWER -- BUT I THINK IT IS NOT NEARLY AS BROAD AS YOU SEEM TO RECOLLECT. MY RECOLLECTION OF THE TESTIMONY IS THAT IT IS A RELATIVELY OBLIQUE QUESTION AND ANSWER.
WELL, SEEING IT ON T.V. AND SEEING IT HERE LIVE IS TWO DIFFERENT THINGS AS YOU KNOW. OKAY. SO I WILL EXPECT THOSE RESULTS HOPEFULLY BY THE END OF THE WEEK.
YOUR HONOR, I DO HAVE THAT LETTER FROM MR. MORTON AND I'LL HAVE COPIES GIVEN TO THE PROSECUTION.
ALL RIGHT. HAVE YOU AND MR. HODGMAN HAD THE OPPORTUNITY TO SPEAK ABOUT THIS NEW LAB THAT YOU'VE LOCATED, THE FACILITIES AND THE ABILITY TO TEST LOCALLY?
NO. I JUST GOT THIS FROM MR. MORTON, THE COURT'S REQUEST YESTERDAY. SO THIS ONLY CONCERNS THE TRACE EVIDENCE.
OKAY. LET ME DO THIS. LET ME STAND IN RECESS THEN FOR ABOUT 15, 20 MINUTES. LET ME HAVE MR. HODGMAN AND MR. SCHECK CONFER ABOUT MR. MORTON'S SCIENTIFIC TESTING. I THINK, MR. COCHRAN, MR. DOUGLAS, WE'RE GOING TO STAND IN RECESS AND I'LL CONFER WITH THE DNA PEOPLE IN CHAMBERS, AND I'LL KEEP THE COURT REPORTER AROUND. I NEED TO MEET WITH JUDGE JAFFE. SO I'M GOING TO LET YOU ALL GO. WE'LL STAND IN RECESS.
YOUR HONOR, I CAN VERY QUICKLY, YOU TOLD US TO HAVE IT BACK BY THE END OF THE WEEK. WE'LL HAVE IT BACK BY THE END OF THE WEEK.
OKAY. THE OTHER ATTENDANT ISSUE THAT CAME UP IN CHAMBERS WHEN I MENTIONED WAS, I WANTED SOME ASSURANCE THAT THE PROVISIONS THAT YOU MADE IN YOUR COURT ORDER OF FEBRUARY 8TH, THAT WE ARE ENTITLED TO EXPLAIN TO THE TRIER OF FACT THAT THEY HAVE CONSUMED PART OF IT IN TESTING.
LET'S SEE IF THEY'VE DONE ANYTHING TO IT AND WE'LL CROSS THAT BRIDGE IF AND WHEN WE GET TO IT.
MAY I ASK THE COURT'S GUIDANCE ON ONE MATTER BECAUSE I THINK I NEED TO UNDERSTAND THIS SO THIS DOESN'T HAPPEN AGAIN. AS I UNDERSTAND, MR. SCHECK ADMITTED TO THE COURT HE KNEW OF THE RESULTS FROM DOJ.
HE SAID HE KNEW THERE WAS TESTING, HE DOESN'T KNOW WHAT IT WAS, WHICH FINGER, WHICH FINGERNAIL, WHICH PILE OF SCRAPINGS, WHAT FINGER.
DIDN'T HE ADMIT HE KNEW THE RESULTS OF THE TESTING, THAT IT WAS AN 18 18, WHICH IS --
NO. IN FACT, THAT'S NOT WHAT I KNOW. IN FACT, I THOUGHT IT WAS PCR, DQ-ALPHA TESTING.
NO. HE NEEDS TO KNOW WHAT YOU'RE TALKING ABOUT WHEN YOU'RE ASKING QUESTIONS ABOUT IT.
I AGREE. I AGREE. SO PERHAPS -- IS THE RULE AT THIS TIME THAT THERE HAS TO BE A REPORT, A WRITTEN REPORT IN EVERYONE'S HAND OR A CONFERENCE AT LEAST TO INDICATE THAT EVERYONE KNOWS?
I REALIZE THAT A LOT OF THIS STUFF IS ONGOING. BOTH SIDES OUGHT TO HAVE THE SAME INFORMATION REGARDING SCIENTIFIC RESULTS.
MY PROPOSAL TO MAKE SURE THIS DOESN'T HAPPEN AGAIN IS THAT AFTER THEY FINISH TESTING ON A PARTICULAR ITEM AND GET A RESULT, THEY WRITE A REPORT IMMEDIATELY TO THE COURT. THAT'S HOW WE WERE PROCEEDING.
I DON'T KNOW THAT THAT'S NECESSARILY PRACTICAL. BUT WE'LL CROSS THAT -- WE'RE NOT THERE YET. ALL RIGHT? DRAFT YOUR INSTRUCTION. I'LL SEE THE LAWYERS AND EVERYBODY ELSE AT 9:00 O'CLOCK TOMORROW MORNING. AND, MR. HODGMAN, MR. SCHECK, AFTER YOU FINISH CONFERRING, I'LL BE AVAILABLE. AND, JUDGE JAFFE, CAN I SEE YOU IN CHAMBERS, PLEASE. ALL RIGHT. THANK YOU.
THEY'RE CONSISTENT WITH MISS BROWN. IT'S JUST HER BLOOD UNDER HER FINGERNAILS CONTRARY TO WHAT MR. COCHRAN SAID IN HIS OPENING STATEMENT.
HE CHOSE TO STAND UP BEFORE THIS JURY AND GIVE AN OPENING STATEMENT BASED ON HALF A LOAF. HE MISLED THE JURY AS TO WHAT HE DID KNOW AND DIDN'T TELL THE JURY THAT THERE WAS OTHER TESTING GOING ON AND TOOK THE RISK THAT THAT TESTING WOULD ABSOLUTELY REFUTE EVERYTHING HE SAID AND HE HAS NOW -- HE'S NOW GOING TO SUFFER FOR THAT RISK TAKEN.
IT SOUNDS TO ME LIKE I VIOLATED YOUR COURT ORDER BECAUSE WHEN I COME BACK ON MONDAY, I TELL THE REST OF THE TEAM WHAT'S GOING ON UP THERE.
THEY DIDN'T SEND ANY FINGERNAIL SCRAPINGS TO BE TESTED TO THE DEPARTMENT OF JUSTICE UNTIL AFTER THE OPENING STATEMENT IN THIS CASE, LONG AFTER. SO WHEN MISS CLARK GETS UP HERE AND SAYS OH, WE SHOULD KNOW ABOUT THIS ONGOING TESTING AND I'M IN TOTAL GOOD FAITH, TO MY KNOWLEDGE, THAT'S NOT TRUE.
I DON'T THINK IT'S APPROPRIATE FOR THE PROSECUTION OR EITHER SIDE TO ASK QUESTIONS REGARDING SCIENTIFIC TESTING THAT HASN'T BEEN COMPLETELY REVEALED TO THE OTHER SIDE. THAT'S OUR UNDERSTANDING.