Back on the record. Mr. Simpson is present with counsel, Mr. Blasier, Mr. Scheck and Mr. Neufeld, People represented by Miss Lewis, Mr. Clarke and Mr. Harmon. The jury is not present. And previously, there had been raised a discovery, I guess Griffen issue regarding continued testing at DOJ. And, Mr. Scheck, since you raised the issue, do you want to advise the Court of the nature of your--
I think my concerns could be simply stated I think it's close to two months ago--it's hard for me to remember--before the examinations of the criminalists began, and Mr. Harmon requested to combine all the samples in the Bronco, 303, 304, 305, of which 303 and 304 being stains that were in the location originally of 30 and 31, and they took all of it, 30, 31, 303, 304, 305, gave notice to the Court and asked for permission to combine them altogether to do RFLP testing. And I think that--we all believed that they were going to commence with that soon after giving us notice.
Immediately if not sooner. And the concern that I expressed at that time and plainly the reason for the testing is that there's ambiguity with respect to the test results on these combined stains in the Bronco. And I think Mr. Harmon indicated--the Prosecution indicated that they wanted to combine all these stains to do RFLP testing to get more information and greater clarity with respect to the results one way or the other to exclude or include various individuals in terms of having greater information.
All right. Well, let's assume, Mr. Scheck, what you say is true. What do you want me to do about it and why?
Well, I think that the problem is that since they have not even begun testing--and we know that the combined samples is something on the order of 72 nanograms of DNA total I think at best--that this particular form of RFLP testing is going to take between four and seven weeks because what's going to have to occur if we're going to get results is laying the autorads for long exposures. So this is in my judgment a tactical decision by the Prosecution to gain an advantage in terms of possible cross-examination of the witnesses and then rebuttal case. It's just more of what I think has been going on all the way through which we've complained about to the Court from the beginning, but this is--this I think is extreme. This is now at the point where it's very clear that this was done not in good faith, but for purposes of obtaining a forensic ambush in this trial if that were to occur. It also precludes the Defense from having any access to the samples during these periods of time if they were not going to engage in this testing. So I think it presents a discovery problem. The cases that we discussed long ago--
Well, Mr. Scheck, let me redirect your thought process. Let's assume that everything you said so far is true. All right. What do you want me to do about it and what's the legal basis for doing that?
The problem is, the only relief at this point is preclusion. I don't know of any other real remedy for this at this point in time by the way they set it up.
So you want me to make--on the basis of this, you want me to make a finding of bad faith and based upon that, preclusion of any results?
Good afternoon, Judge. Now that the jury has seen the kind of evidence we have, the ambush already happened, and the overwhelming mountain of DNA evidence has begun to cascade right where it belongs, on Mr. Simpson. While it may have been intriguing and entertaining back in October whenever these discussions happened before I started coming down here, that our tactics, our--which our tactical decisions precluded them access to the DNA evidence in this case, you are aware and they are aware that they have never gotten one of the many, many remaining swatches in this case to test for DNA typing. If they have, it's news to me, which is always possible, but I'm not aware of it. So we can cross that one off the list as a good faith argument. Nobody's precluded them access. There's a bunch of stuff over at LAPD SID that we would love to have them test for DNA typing. So let's strike that from our agenda. Practically speaking, although no objection has been made, Mr. Sims is going to have to come back after this chunk of his testimony because there are tests specifically on 117 that have been going on for quite some time that haven't been reported. And while Mr. Scheck hasn't projected to me presenting--he doesn't mind me objecting to having Mr. Sims present them when he testifies hopefully next week, even though he hasn't gotten the reports, but he knows what the results are. I would be happy to do that. I would like to finish him in one session, but I know that's--it's not fair because we don't have a report. So Mr. Sims--
Mr. Scheck as part of this bad faith said--I wrote this down--"They have not even begun testing." And I'm as shocked to hear that as I'm sure Mr. Sims is. They've begun testing. They just haven't begun the part of the testing that he's dying to know if the other shoe is going to drop out of. So the testing has begun. Mr. Sims has a life. The DOJ lab has a life independent of this case. You know, aside from my--those are my normal comments that have nothing to do with the legal issues. There is no legal issue that allows them to do what they've asked you to do here. They have consistently whipsawed the Defendant's right to a speedy trial and said, "But this isn't fair. We're never going to know." And if they waited, they would have known all this ahead of time and maybe rethought their tactics in this case as the DNA tests unfolded. But the fact of the matter is, they chose when to go to trial. And we have done fairly well. No case has ever had the amount of DNA evidence analyzed as has this case. So I think the Court realizes that at this point, the arguments that we have precluded them access or this will continue to preclude them access to evidence, when--except for the intriguing 47, 50 and 78 that weren't done for DNA testing, they've never done any DNA testing on any of the evidence. That's not a sincere argument. But there's simply no legal basis for it. I wish we were done. Mr. Sims wishes he was done. Unfortunately, once you step out of this courtroom and out of this building, there's a whole world and a life out there and everybody has to balance--except for us, everybody has to balance that, and we're just stuck in this for the time being. So there's no legal basis. If they hurry up with their cross-examination of witnesses, maybe we wouldn't get around to testing and there wouldn't be any ambush. But, you know, the lengthy cross-examination that we saw in April just makes it easier to finally get around to the last set of tests--and that's about the last set of tests. So if they were concerned about it, maybe they should have cut off some of their cross-examination and precluded us from practically being able to get to these results. Thank you.
Mr.--what's your name--Clarke has a recollection that it was April 3rd. Mr. Sims is--could I ask him? He's got his notes here. I just didn't bring them here. Because we had those discussions--and I can tell you that things have been done towards the typing.
All right. The record should reflect that present in the audience is Gary Sims, Department of Justice. Good afternoon, Mr. Sims.
I would welcome him to define it. I'm only going based on what Mr. Harmon told me and nothing else. And the original source is Mr. Sims and I welcome any of his remarks and I'm sure they're completely accurate.
I remember there was first a legal hurdle we had to overcome and a declaration in which I said that I would save swatches, which I did. And I don't remember the exact date of that declaration. Then that was litigated and then the samples came back up to us looks like on March 9th. March 9th was when we started--we got some of those samples back and we wanted to do additional tests on. And the actual completion of the tests that we did to the extraction, we did some DQ-Alpha typing, et cetera, on those, and that--we put it in quantitation with some other things, and that was completed about early April. So since sometime in early April.
Can you pin it down a little closer than early April? And, Mrs. Robertson, could you find the motion with regards to--the Prosecution's motion to--for permission to combine those items for testing? And the declaration by Mr. Sims should give us some idea as to where we are.
The note I had would be April the 4th. My notes say--this is on page 339--239 of my lab notes--April 4th, `95, DNA, 30, 52, 53. Those are those three combined samples, proceed to RFLP. So April 4th.
April 4th. And, Mr. Sims, when do you anticipate having final results and completing a report as to that test?
For that particular sample, maybe we can only get a few probes off. So we may have to go with some partial information as far as the probes and we can see.
The process itself takes several days as far as restriction gel and blotting. And then we'll also of course have to have the probing done. So I would think we've probably got maybe a month and a half of work, something like that.
Well, we may have preclusion by passage of time. All right. Mr. Sims, do you happen to have in your case notes there a copy of your declaration?
KEY QUOTEAll right. Then I'll have the clerk find that. I just want to get the declaration so I can place our legal discussions in context time wise. All right. Mr. Scheck, any other comment?
Yes. Just one. I just note for the record that I don't want to violate any of the Court's rules with respect to making comments. I'm trying very hard, and Mr. Harmon has a very colorful way of expressing himself, and I'm not amused. The--and I will not take the bait of answering all these things, but I want the Court to know I'm not amused. There's one thing that does require note. Once again, Mr. Harmon is making statements about what he knows the Defense did or did not do in secret testing. That motion is still before the Court. That record is still before the Court. I don't think those are proper comments. I don't know how he knows any of this, and I'm very concerned about it. And I would call the Court's attention--and I will file a letter memo on Monday--to the case of County of Los Angeles versus Superior Court at 222 Cal. App. 3d. 647. Since it's my opinion, if the Court consults that authority, that Mr. Harmon's previous admissions in our discussions of his efforts to find out about privileged communications and testing if any was done by the Defense, already by his own admissions is unethical, violates rules and actually merits the sanction of recusal from the case. I haven't said we're going to ask for that with respect to Mr. Harmon, but it's serious. And I don't think he seems to understand that. And he did it again today.
All right. Thank you, counsel. What I will need to do is review the record with Mrs. Robertson to determine the actual dates of the declaration filed by Mr. Sims and then rule after I have that information available to me. Mr. Clarke, you mentioned something earlier this morning that we needed to resolve. Clarke. That's you.
All right. Anything we need to do on--Mr. Blasier, you're raising the issue regarding Dr. Weir's--
Mixed samples calculation. Mr. Thompson is prepared to present our position on that, if they're ready to talk about this.
I thought we were going to go through this phase with Dr. Cotton and then she was going to have to return anyway because of the Court's sustaining the objection as to foundation on, for instance, frequency calculations including the Department of Justice.
As well as there are some other issues that relate to results from the Department of Justice that I was going to ask Dr. Cotton about. So I may have been under the wrong--
All right. So you were not anticipating presenting this until Robin Cotton, round 2?
Exactly. Because there is a number of pieces of information that need to be looked at as far as to calculate these frequencies. This was done in very much a rush, and frankly, I don't think--it's been too fast to be able to present this information properly or to calculate it properly. So Dr. Cotton is still working with Dr. Weir to be able to calculate those frequencies. I'm not trying to give the Court the impression we don't plan on doing that. We do, but it's not as simple as taking a few days to calculate this as it turns out.
Well, wait a minute. Who's going to address the issue? Mr. Thompson, Mr. Blasier or Mr. Neufeld?
Professor Thompson is going to address the actual numbers that were presented by the Prosecution in a memo written by Dr. Bruce weir. All I wanted to do was remind the Court on a preliminary level procedurally that it was your ruling not that they were going to wait to present numbers at some other occasion on some other date if and when Dr. Cotton returns to Court. It was the Court's ruling that they were compelled to produce some number which aggregates the respective frequencies in the population of all those people who were not excluded. And I--the issue is not whether they use a product rule or a silly pencil. They can use whichever one of those numbers they deem appropriate given the outcome of the Frye issue here, but that they had to produce a number. And that it was decided by agreement I believe at a sidebar that the way it would be done, since we couldn't conclude that issue on what the number was before I commence cross-examination, that he would be permitted, while Dr. Cotton was here these couple of days, to reopen his direct examination just for that limited purpose. And so he would either do it as a reopen or he would do it during the course of redirect. And what I said is, and he agreed to that point, that I was not going to comment on his failure to put on any of those numbers during the direct.
But here's the other problem though. We know the scheduling problems we have with Dr. Cotton. We know the--now Mr. Clarke is indicating to me that he's not ready to present these numbers. I can't force him at this point--if he wishes to recall a witness during the course of his Case in Chief, he's entitled to do that.
What I would ask to be able to do at this point, your Honor, if that's the Court's feeling about this--I mean frankly in terms of scheduling, I don't think it's a big problem. As I informed the Court earlier today, I will finish my cross-examination on Monday. And now in fact, you've said it on the record and in open court as well. So it's no longer a confidential matter. But I do make that representation. And she has to finish by Wednesday I believe with her schedule. So certainly that's more than enough time for redirect as well as to handle any anticipated problem with these numbers, and I think--
Well, let's see where we are. Mr. Clarke, when are you going to have your final numbers calculation? When do you think?
I don't know the answer to that. It's a much more complex task than it might seem on its face, and the two of them are working together quite a bit, I mean extensively in the time that's been available over the last few days. I can ask Dr. Cotton how long she anticipates that will take. But I don't want to be in the position of having to produce all of a sudden a frequency, frequency that's the product of rushing, and then all of a sudden it's attacked because it was forced--you know, it was compelled to be done and it wasn't examined sufficiently.
So whether under a misapprehension or not, I think the additional time will help ensure the accuracy of those numbers, but I would like to ask Dr. Cotton how long she anticipates is needed.
All right. How long will it take you to contact Dr. Cotton? Can you do it right now?
I just wanted to remind the Court of one other thing. It was a week ago that you had asked Mr. Clarke to have those numbers ready just in case that was your ruling. So they've had a week to prepare those numbers in anticipation of the Court's ruling. So it's not something that was a rush to judgment if you will. It's something where they had plenty of time to process it. And, you know, in all due respect to what's involved here, I don't believe, for instance, with item 29, for instance, it takes days or weeks or even hours to answer the question that's posed in the national academy of science NRC report. It's simply aggregating the frequencies of that portion of the community that can't be excluded.
All right. Let's take five minutes. And, Mr. Clarke, why don't you give Dr. Cotton a call and let's see when we might anticipate--because I would like to wrap that aspect of it up, this round if we can.
Maybe just to set a time for scheduling because I know Mr. Cochran is not here and Mr. Douglas is not here. This morning, the Prosecution was provided with some additional discovery and a supplemental Defense witness list which includes about a dozen new names. For a few of these people, there--the discovery which was provided is just in the nature of rough notes which are incomprehensible. There are no dates of allegations. Apparently, they contain allegations. We can glean that much. But this is incomplete discovery, and it's brought up to the fore a problem we've been wanting to address for a while in terms of incomplete Defense discovery. And that is that on the combined Defense witness list, there is over 50 people still on their witness list excluding American Airline passengers on the flight to Chicago, which is quite a few people by itself. Excluding that, there is still over 50 people on their witness list for whom they have not provided discovery and we never initially provided discovery to them. So while there are a number of witnesses who we can kind of glean the nature of what they would be testifying to based on discovery we provided to them at an earlier point in time, such as some of the police officers, there are quite a few witnesses that we've never heard of and we know nothing about. And it's becoming difficult to believe that there has not been Defense investigation culminating and some kind of statements from these witnesses. So I have a list of those. I was hoping Mr. Douglas would be present this afternoon so that I could ask him about it. Perhaps I could lodge that list with the Court and fax a copy to the Defense, because it's certainly getting to the point where we're getting very close to the Defense case and we don't have discovery on a lot of their supposed witnesses. Maybe they're people who they are going to be taking off their witness list, but if that's the case, they should be doing that.
All right. Why don't you lodge a list with the Court, send a letter to Mr.--fax a letter to Mr. Douglas this afternoon, advise him of your concerns, and if it's necessary, we'll set it for a hearing.
All right. Okay. Let's take a five-minute recess. Mr. Clark, why don't you chat with Dr. Cotton.
This is now at the point where it's very clear that this was done not in good faith, but for purposes of obtaining a forensic ambush in this trial if that were to occur.
Now that the jury has seen the kind of evidence we have, the ambush already happened, and the overwhelming mountain of DNA evidence has begun to cascade right where it belongs, on Mr. Simpson.
Aren't we going to be done by then? That was my hope.
Well, we may have preclusion by passage of time.
It's my opinion, if the Court consults that authority, that Mr. Harmon's previous admissions in our discussions of his efforts to find out about privileged communications and testing if any was done by the Defense, already by his own admissions is unethical, violates rules and actually merits the sanction of recusal from the case.