All right. Good morning, counsel. Back on the record in the Simpson matter. All counsel are again present, Mr. Shapiro, Mr. Cochran, Mr. Scheck, Mr. Blasier, Mr. Neufeld. The People are represented by Miss Clark, Mr. Darden and Mr. Goldberg. The jury is not present. All right. Let's have the jurors, please.
Your Honor, we have a number of matters that need to be resolved before we take Mr. Matheson. I'm wondering if you want to do that now.
All right. I received letter briefs from counsel on both sides with regard to that issue. Mr. Blasier, do you have any further comment you wish to make on that issue that is not included in your letter brief?
Well, the People just filed--at least they handed me an unfiled copy of further paperwork on this this morning. I don't know if the Court has had a chance to review this or not.
And then I said that we were not. There was one typographical error which I corrected in hand and then dated it so that the Court can look at it.
As I understand the argument in this new paperwork, the People are taking the position that there should be no testimony about the EAP b results of the blood under Nicole Brown Simpson's fingernails on the basis that they are now saying that unless they can testify about these other inconclusive results, this now becomes an inconclusive, and that argument makes no sense to me. First of all, I'm not sure how to respond to it because it is a senseless argument. There are a number of statements--
Okay. Both. I mean, there are other statements in this brief that are just flat not true. They talk about how the typing results for the pool of blood under Nicole Brown Simpson showing a banding pattern consistent with a type b and they say that this result was called an inconclusive B. I would like to have marked, Mr. Matheson's report on this.
Thank you. Mr. Blasier, if you will look at page 2 of this report you will see that item no. 42, which is the blood under Nicole Brown Simpson, Mr. Matheson concluded that it was an inconclusive; not an inconclusive b, but an inconclusive. If you look also at the blood on Nicole Brown Simpson's thigh, which is item no. 85-a and b, in this brief they just filed it is described as an inconclusive BA. In Mr. Matheson's report--
Yes. In Mr. Matheson's report it is an inconclusive; it is not an inconclusive BA. The--you will also note that the fingernails, which were items 84-a and b, are not inconclusive at all; they are a b, a straight b, and to represent otherwise it is just simply not scientifically correct. Now, they may try to explain, well, it sure looks like a b but maybe it was a BA at some point in time, and we are prepared to deal with that particular argument, but to change the result to say they were inconclusive before but now we need to make them something else, it is scientifically fraudulent in our view and should not be permitted. So we would submit the matter with those comments on this brief that they just filed, as well as what I've already submitted in my brief before.
Actually, your Honor, it would be scientifically fraudulent not to admit them and that is why we felt so strongly about this and have insisted on this, to the extent that we have, in filing a number of points and authorities, and making a variety of arguments. We would like to call Mr. Matheson in a 402 hearing because we do believe that when the Court understands these issues and they are not--it is not immediately apparent why the Prosecution is taking the position that we are and why the Defense is taking the position that they are. In fact, there is a certain aspect to it that is counter-intuitive, because if you just look at the results on their face, the EAP result of the pool of the victim's blood being an inconclusive b is inconsistent with the Defendant and is inconsistent with the victims in this case and would seem to lend a theory that someone else deposited it, so you would think that the Defense should be seeking to get that result in, that the Prosecution would be seeking to exclude that result, because why would we want to put on a result, a--albeit an inconclusive one, that is inconsistent with anyone in this case. Why would the Defense want to exclude that result? It does seem to be counter-intuitive. But when the Court understands that scientifically, we know that the pool of the victim's blood has to be her blood and therefore we know that the true type is a BA and we know that that is not what we see when we test it, that tells us something about what is happening under the environmental conditions at the crime scene and it tells us that type EAP BA blood is degrading in such a manner as to create the appearance of a B. And I think Mr. Matheson can communicate this to the Court that I cannot and that is why we would seek to put him on for the purposes of explaining this and perhaps using a chart that we have that we would use with the jury to explain what this banding pattern looks like when it is not degraded, what it looks like when it is degraded, to explain the scientific literature that identifies this problem that we quoted in our most recent brief and to discuss the literature that says that according to some analysts you are required, as a forensic scientist, to look at the pool of blood and blood on the victim's clothing as a control study to determine whether or not you in fact have degradation on this one particular marker, because it has certain problems in terms of degradation that the other markers could not have.
And we have cited the literature which says that Mr. Matheson is required, according to these authors, to do the precise thing that he is doing and that he should not, if you accept these authors, express an opinion about the blood under her fingernails unless he has also looked at what is happening in the pool of blood and the blood that is on her clothing or on her person. Now, counsel has given you a copy of the analyzed evidence report which says--which simply reports inconclusives. It does not give an indication as to whether it is an inconclusive b or an inconclusive BA or what have you. On the electrophoresis work sheet, which in light of counsel's argument I should probably also mark, only unfortunately my copy has writing on it--I would like to give the Court a clean copy. I'm going to get a clean copy to mark, but it talks about the EAP result on 84-a and b which are the fingernail scrapings and 85-a and b which are the dots of blood that came from Nicole Brown Simpson's thigh. And the way that it is called on the electrophoresis work sheet, which is the one which is done contemporaneously with the testing while you are actually looking at the plate, the analyzed evidence report is an external document for the Court and the attorneys and so on, but was actually a document that is generated at the time of the analysis, what Mr. Matheson says on 84-a and b, that being the fingernails, is b question mark and the question mark typically--
Well, Mr. Goldberg, let's cut to the chase here. Let's assume as a result of this challenge the Court needs to conduct a 402 hearing. What is your time estimate as to how long that will take? And how do you suggest we accomplish this as expeditiously as possible, understanding we have a jury sitting in the jury room?
I understand that, your Honor, and I don't like 402 hearings and I don't believe that 402 hearings should almost ever be done with live testimony, so this is not--this is contrary to my ordinary practice, because I understand what the Court is afraid of here, and that is that it is going to turn into a little bit of a mini trial on an issue where the Prosecution feels that there is no factual or legal issue for the Court to resolve. The bottom line conclusion that Mr. Matheson is going to give is that based on the totality of the evidence that he has in front of him, that the EAP results under the victim's fingernails are in fact a BA.
Well, Mr. Goldberg I asked you two specific questions. How long is this going to take and how do you suggest we do it?
The way I would suggest it, is this: Counsel has raised an objection to the People's chart. They haven't tried to limit the scope of Mr. Matheson's testimony or somehow force him into giving an opinion that is scientifically unsound and is contrary to what he believes as a forensic scientist, so what I would suggest is this: If the Court still has a problem with the chart itself for some reason, after looking at the People's brief and the Court believes that it would be helpful to hear more about this issue, then Mr. Matheson should simply be allowed in front of the jury to testify as to this result, to other results, to how he has interpreted them, to the forensic science literature and what he believes the literature requires in making this kind of an interpretation and his bottom line opinion. And after that I think it will become clear to the Court that the chart itself should come in as well as summarizing what is actually placed on the electrophoresis work sheet because the electrophoresis work sheet does in fact provide the 85 as a BA question mark or an inconclusive BA and all of our results to the chart do in fact come either from the electrophoresis work sheet or from the analyzed evidence report, so it is a summary of business records.
Are you suggesting that I conduct this 402 hearing in the course of the presentation of Mr. Matheson?
We certainly object to that and let me make it clear we are not objecting to Mr. Matheson testifying as to how a BA degrades and what makes it look like a B. We are fully prepared to cross-examine him on that issue. But what we are objecting to is inconclusive results are anything other than that on and analyzed evidence report that he prepared was prepared after the work sheets and was based on the observation of the other work sheets. This is the report that he submitted for the attorneys and for the Court and for everyone else who wants to know these are the results that he called and he called them inconclusive and we object to him testifying to anything other than that.
All right. Thank you. All right. The Court finds that this particular issue as presented is an issue that goes to the weight of the testimony, the weight that is accorded to the testimony; not necessarily its admissibility. However, having said that, the Court anticipates that we are going to see rather extensive cross-examination as to this particular issue and I have to indicate to counsel for the Prosecution that given Mr. Matheson's original report, I suspect I'm going to have to give rather wide range to the Defense as to these "Inconclusive indications and degrading samples." let's have the jurors.
The Prosecution just brought in a new chart this morning on this very issue, the fingernail, and we have no objection to anything on the chart except there is a picture of Nicole Brown Simpson's body from a long-shot that I think it may have been used before in some other context, but it has no meaning really on this particular chart, and we think it is really gruesome and unnecessary.
All right. Let's assume that we are not going to get to it and I will take a look at it over the lunch hour. I would like to get rolling.
I believe it is a photo that has been introduced. And counsel has another motion.
We did have an additional motion that Mr. Neufeld is prepared to argue that we filed this morning concerning the order of proof. In essence we are objecting to his testifying to any test results on Mr. Simpson's blood without proper foundation of the person who drew the blood. And Mr. Neufeld is prepared to--
Well, I assume I will hear that objection as soon as there is some testimony regarding the blood, foundational objection.
And finally there was a brief filed on Thursday, I believe, about the business records exception and--
Regarding chain of custody. We have no objection to testimony from Mr. Matheson about what amounts to ministerial acts, putting things in packages and sending them off to any other labs, and we would object if they have any intention of offering testimony from Mr. Matheson about tests that some other person did or evidence collection that some other person did under that exception. But I understand from Mr. Goldberg, they don't intend to do that, so that may be a moot point.
Finally, we would object in advance, to avoid a side bar, that if they intend to ask Mr. Matheson any questions about anything our experts have done, either at some other location or in Los Angeles, we object to that and want to be heard about that before that is done.
Okay. Give me a head's up when that comes so we can discuss that out of the presence. Let's have the jurors, please.
to change the result to say they were inconclusive before but now we need to make them something else, it is scientifically fraudulent in our view and should not be permitted.
it would be scientifically fraudulent not to admit them
if you just look at the results on their face, the EAP result of the pool of the victim's blood being an inconclusive b is inconsistent with the Defendant and is inconsistent with the victims in this case and would seem to lend a theory that someone else deposited it, so you would think that the Defense should be seeking to get that result in
given Mr. Matheson's original report, I suspect I'm going to have to give rather wide range to the Defense as to these 'Inconclusive indications and degrading samples.'