The record should reflect that the jurors have withdrawn from the courtroom. Mr. Fairtlough, can you swing the easel around there so that we can all see the next board.
Items that came back and then went out again, so they had to be put on a separate board.
I didn't know counsel had any objection to this because I think we have had it down here for awhile, and I thought we had an agreement that we were supposed to know so we could make modifications.
I understand what the issue is, but we sometimes come on with patches if we think there is a problem.
The point of my question to you, Mr. Goldberg, are there any other exhibits that you have not previously shown to the Court and Defense counsel that you intend on using tomorrow?
They have everything. I'm going to also use the analyzed evidence report that is l-371 that was used in Mr. Cochran's opening statement. That is on laser and it has certain pull-outs on it, very similar to what he used in his opening statement.
I also have an electrophoresis work sheet that they have, except it is on laser, and it also has a pull-out on it.
If you recall from my revised counsel conduct order, this is what we are going to do everyday at 4:30, look at new exhibits for the next day.
Your Honor, it is my understanding that that order doesn't apply to impeachment materials.
Any affirmative stuff that you intend on presenting, I want to see it at 4:30 the day before so we don't have to stop and start; affirmative evidence as opposed to impeachment evidence.
That is electrophoresis work sheet and it has a "B" and a question mark under item 84-a and 84-b.
It is l-383. I have shown all of these exhibits this morning, so there is nothing new.
All right. Let's talk about additional LAPD evidence disposition summary chart, People's 209. I take it, Mr. Blasier, your objection is to column 2?
What case law are you aware of that precludes the Prosecution from, in their presentation regarding the integrity of the evidence, to not put this on? What precludes them from doing that?
Well, I think we briefed this before in the motion on the stipulation. I don't have that at hand, but the--
I'm assuming what it is being offered for is just to establish where the items were during a certain period of time.
And you don't need to go into what happened to the items, speculate about what might have happened to the items and who had them. We are willing to stipulate to that. We are not challenging it. I know we can't make them stipulate to it. And we are not challenging it and it seems inappropriate that they should be able to go far beyond what limited probative value this information has.
Well, if the chain of custody were stipulated to, which would be the normal way things are done--
If they are going to stipulate that the only portion of the chain of custody that they are contesting is between the scene and the evidence processing room, which they have already contested through Mr. Fung, and then that is it, then a lot of this becomes irrelevant, but that is apparently not what they are doing. They are I think contesting almost every portion of the scene, even after the things were in the laboratory. Between the time that things were at the laboratory and mailed out they wouldn't even stipulate to laying the foundation on these boards.
All right. My inclination, though, is to say that the Prosecution is entitled to show that for a period of time these items, as designated here, were in the possession of representatives of the Defense, and that is the end of it.
Well, the problem with that is that opens the whole area up as to what we did with them and we will have to go into the fact that we weren't allowed to do anything to them, that we weren't allowed to perform my testing, that it was just an examination. And it seem to me we are going to get off on a real long trail here that has very little impact on what limited value this information has when we are not contesting it.
Yes, your Honor. If the information is going to come in that we had these items, then it needs to also come in that we were not allowed to do anything to them other than examine them. We were not allowed to take samples for testing. We were not permitted to do anything other than physically look at them.
KEY QUOTEAll right. Mr. Goldberg, do you have anything else to add that is beyond the points and authorities submitted regarding the proposed stipulation?
No, but I did want to clear--clarify one thing for the record. The Court said that you were inclined to allow this along with any evidence as to what happened, and generally speaking, I think that that is actually what I intended to do with every single item, with the possible exception of item no. 6, because item no. 6 went out to Albany, did not have any hair in the bindle, but when it came back it was photographed. And it does, so however it happened and whoever was responsible, that bindle became accidentally contaminated which is kind of interesting because it was still tested and I believe still came out as clean, it doesn't have any biological evidence on it. Obviously no one would intentionally contaminate a piece of evidence, but it is sort of interesting and it would probably be very interesting for these jurors that it did become contaminated, as the Defense has used that word, and still there was absolutely no impact on the evidence that was tested, so I think that it is relevant to bring that out.
Actually I'm sorry, that is not accurate. That hair was there when we got it and we have fully documented that.
All right. Well, we'll see. I'm sure it will come out in front of the jury in some form. All right. I want counsel here, Mr. Goldberg, Mr. Blasier, I want you gentlemen here at 8:30 and we will continue the discussion. As I mentioned to you, I am not comfortable with the state of my research on this particular issue, so I just want to have a little more time.
Something else about the chart if I could; not a further argument. But I did want to point out in all of these items the only reason that we are putting these items went to the Defense, even though there were many more, is because they went to the Defense between the time that we received them back and the time that we mailed them out again.
I also wanted for the record to say that we would like to use some photographs of the socks that have not been previously marked but which counsel has, and I am going to use this EAP phenotype block diagram which they have seen probably about a month ago now, but they may have forgotten that they saw it, so I wanted to put that on the record.
Counsel, what we are going to do is find some other way to store all of these because we need a little more working room. Also counsel have been inviting their witnesses to take the witness stand prior to the Court coming out. It is for the Court to invite witnesses to take the witness stand. All right.
Right. There is--just, you know, at this point in time we still have not had any introduction of the actual results of either the conventional serological or DNA tests.
I just wanted to bring to the Court's attention right now, to consider as an additional ground for at this point precluding that kind of testimony tomorrow morning from Mr. Matheson, is that it is not just simply a question of foundation testimony from the nurse, the blood itself hasn't been introduced into evidence. And frankly, I have looked at the California law and I don't know of any cases, for instance, which say that it is okay to have a laboratory technician testify that a certain substance contained cocaine or heroin without first introducing the drugs that have been seized and I know of no case law in California that sustains the introduction of test results without the blood coming into evidence and we would oppose, on an additional ground, the introduction of any results until the blood it is introduced.
All right. Noted. Thank you. All right. See you gentleman tomorrow. Mr. Blasier, one more thing?
I don't want to run afoul of the Court's order. I have some slides that I prepared to illustrate points I intended to make with Mr. Matheson on cross-examination. It was my understanding, because that was impeachment material, that I don't need to provide that to them now, but I just to make sure that I'm clear on that.
They have a very loose definition of "Impeachment material" and I know we have gone over this over and over again.
No. What I would require you to do, however, is prior to the session that you are going to use it, advise the Court and counsel that you have got it, just in case there are any objections to it, without--without discussing it with the witness that is involved.
Also, on many of these items, as the Court knows, we have very voluminous photographs and so on. I don't bring everything, but I bring this cart down everyday. That is only a very small fraction.
Also, you are going to have the notebooks piled up there on the second tier below, but sometimes it obscures views.
Okay. But I'm sure some of your minions upstairs, if they hear that we are using those other photos, will rush them down here.
Yeah, but it would be some delay of ten or fifteen minutes or whatever, depending on how crowded the elevators were at that time.
Well, be prepared. All right. Anything else? All right. We will stand in recess, 8:30 tomorrow morning, counsel. Thank you.
Well, Mr. Goldberg, you know there is nothing normal here.
If the information is going to come in that we had these items, then it needs to also come in that we were not allowed to do anything to them other than examine them. We were not allowed to take samples for testing. We were not permitted to do anything other than physically look at them.
The blood itself hasn't been introduced into evidence. And frankly, I have looked at the California law and I don't know of any cases, for instance, which say that it is okay to have a laboratory technician testify that a certain substance contained cocaine or heroin without first introducing the drugs that have been seized.
That bindle became accidentally contaminated which is kind of interesting because it was still tested and I believe still came out as clean... Obviously no one would intentionally contaminate a piece of evidence, but it is sort of interesting.