Scheduling and procedural discussion

📄 Scheduling and procedural discussion — Tuesday, May 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\16\SCHEDULING-AND-PROCEDURAL-DISC.DOC

TRIAL

▲ Day 75 of 167

◀ Direct examination of Gary Sims (part 6) Procedural matters ▶

Date: Tuesday, May 16, 1995 • Utterances: 31

A brief end-of-day scheduling discussion where defense attorney Barry Scheck requests clarification on the order of upcoming DNA witnesses (Sims, Montgomery, Yamauchi, and possibly Dr. Weir) so out-of-town counsel can make travel arrangements. Scheck also puts on record an objection to the prosecution eliciting DNA match testimony for mixtures without simultaneously presenting population frequency statistics, while Harmon explains the complexity of calculating RFLP mixture frequencies.

# 1 THE COURT:

Back on the record. Mr. Scheck, you had a comment?

# 2 MR. SCHECK:

Yes. Actually, just a request for scheduling verification. That is, we now understand because of the issue of population frequencies, Dr. Weir is going to be testifying. And since we don't live here, we have to make scheduling plans. And DNA is pretty dense. We want to know if the--what the witness schedule is. I believe it's Mr. Sims, they indicated perhaps Miss Montgomery, then Mr. Yamauchi, now I take it Dr. Weir. Are there any other witnesses so we can make our travel plans accordingly? And is that the order?

# 3 MR. HARMON:

I'm not clear when Dr. Weir will testify, so I'm not sure. I guess how long they'll cross-examine--

# 4 THE COURT:

No. Not when. What's the order?

# 5 MR. HARMON:

Well, Sims, Montgomery, Yamauchi.

# 6 MR. SCHECK:

And then Dr. Weir.

# 7 MR. HARMON:

That's still up in the air. I mean I travel too. So I understand that. Not quite as far as these gentlemen do, but I travel too and--

# 8 THE COURT:

It's interesting trying a case with all out-of-town lawyers.

KEY QUOTE

# 9 MR. HARMON:

I feel like an Angelino now.

KEY QUOTE

# 10 MR. COCHRAN:

No, no, no, no, no.

# 11 MR. SCHECK:

He was the one that elicited all that stuff about northern and southern California.

# 12 MR. HARMON:

It is not clear and that's all the part of the case that Mr. Clarke--

# 13 THE COURT:

But your plan now is for to continue with Mr. Sims, then Renee Montgomery, then Mr. Yamauchi and then perhaps Dr. Cotton again or Dr. Weir?

# 14 MR. HARMON:

Or perhaps not.

# 15 THE COURT:

Or perhaps not.

# 16 MR. SCHECK:

Well, wait a second.

# 17 MR. HARMON:

If I knew, I would tell you.

# 18 THE COURT:

All right. Well, they've indicated that--they know they have to bring in somebody for these numbers and for the population genetics.

# 19 MR. SCHECK:

We have--Mr. Harmon indicated to me that he's not going to put in any numbers now for these mixtures that he's going to elicit through Mr. Sims. And we have an objection to that in terms of eliciting the match testimony with respect to these mixtures without stating frequency through this witness at this time.

# 20 THE COURT:

All right. Mr. Harmon, any response to that?

# 21 MR. HARMON:

I mean we're in the same complex dilemma that was created by their objection that we do this. We'll do this. But, you know, it's not unlike--if you look at it, Robin Cotton was going to testify to all the PCR multiplication and they didn't want that because there was no evidence of it yet. And we don't have the evidence of the frequency mixtures because it's a very complex approach and the first few tries haven't met with satisfaction. So we want to do this right.

# 22 MR. SCHECK:

We have what they handed us this morning with respect to the aggregate on DQ-Alpha and poly-marker frequencies that Dr. Cotton produced, was fine with us. And it seems to--

# 23 THE COURT:

But I accept that the RFLP calculation is a little more complicated.

# 24 MR. SCHECK:

Well, frankly it's just a question of the band frequencies. I think what the Court's going to see is that if it's just an aggregation of frequencies, it's very easy. If one comes up with likelihood ratios and tries to jack up the numbers with a different kind of method, it can become more complicated and that's really what's going on here. And I think that clear enough, but I wanted to put that on the record so it's clear and, you know, I guess we'll deal with it tomorrow as it arises.

# 25 THE COURT:

But your question was regarding scheduling, and I think we have at least an idea as to what we will be doing for the next couple of weeks.

# 26 MR. SCHECK:

Well, let's hope it's not that long.

# 27 THE COURT:

All right. Any other scheduling things we need to take up? All right. We'll be in recess.

(At 4:10 P.M., an adjournment was taken until, Wednesday, May 17, 1995, 9:00 A.M.).

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California,)

plaintiff,)

vs. ) no. Ba097211 )

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Tuesday, May 16, 1995

Volume 147 Pages 27613 through 27874, inclusive

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# 28 APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

# 29 FOR THE PEOPLE:

Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

# 30 FOR THE DEFENDANT:

Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

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I N D E X

Index for volume 147 pages 27613 - 27874

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Day date session page vol.

Tuesday May 16, 1995 A.M. 27613 147 P.M. 27479 147

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# 31 LEGEND:

Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX of witnesses

PEOPLE'S Witnesses direct cross redirect recross vol.

Sims, Gary 27627rh 147 (Resumed) 27748rh

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ALPHABETICAL INDEX of witnesses

Witnesses direct cross redirect recross vol.

Sims, Gary 27627rh 147 (Resumed) 27748rh

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

265 - 18-Page report 27668 147 Chain of custody records

265-A - 1-Page document 27690 147 From chain of custody records

266 - photograph of 27748 147 Fibrils from socks

267 - infrared videotape 27753 147

268-A - photograph of 27771 147 Glove (Top - inside out)

268-B - photograph of 27771 147 Glove (Bottom - inside out)

268-C - photograph of 27771 147 Glove (Top - right side out)

268-D - photograph of 27771 147 Glove (Bottom - right side out)

269-A - autorad - a1 27826 147

269-B - autorad - a2 27826 147

269-C - autorad - a3 27826 147

269-D - autorad - a4 27826 147

269-E - autorad - a5 27826 147

269-F - autorad - a6 27826 147

269-G - autorad - a7 27826 147

269-H - autorad - a8 27826 147

269-I - autorad - a9 27826 147

269-C(1) - autorad - a3 27836 147 with 3 arrows

269-E(1) - autorad - a5 27838 147 with 5 arrows

269-F(1) - autorad - a6 27840 147 with 5 arrows

270-A - autorad - a10 27849 147

270-B - autorad - a12 27849 147

270-C - autorad - A13 27849 147

270-A(1) - autorad - a10 147 (Not marked on with 9 arrows the record)

270-B(1) - autorad - a12 27860 147 with 8 arrows

270-C(1) - autorad - A13 27862 147 with 8 arrows

271-A - autorad - a16 27865 147

271-B - autorad - a17 27865 147

271-C - autorad - a25 27865 147

Temperature

procedural

Key Quotes (4)

Lance A. Ito

It's interesting trying a case with all out-of-town lawyers.

Rare moment of levity from the judge, acknowledging the logistical complexity of the case's legal teams.

Rockne Harmon

I feel like an Angelino now.

Harmon's self-deprecating quip in response to the judge's comment, prompting pushback from Cochran.

Barry Scheck

We have an objection to that in terms of eliciting the match testimony with respect to these mixtures without stating frequency through this witness at this time.

Scheck signals a substantive legal fight over whether match evidence can be presented without accompanying statistical weight — a core DNA admissibility strategy.

Barry Scheck

If one comes up with likelihood ratios and tries to jack up the numbers with a different kind of method, it can become more complicated and that's really what's going on here.

Scheck telegraphs the defense's suspicion that the prosecution is using complex statistical methods to inflate the significance of DNA matches.

Evidence (2)

Informal

DQ-Alpha and poly-marker frequency aggregate produced by Dr. Cotton

discussed — defense indicated they found these acceptable

Informal

RFLP mixture frequency calculations

discussed — prosecution acknowledged complexity and that first attempts were unsatisfactory

Notable Exchanges (2)

Barry Scheck•Rockne Harmon

Scheck objects to Harmon's plan to elicit DNA match testimony for mixtures without stating population frequencies; Harmon explains the prosecution is still working through a complex statistical problem and wants to 'do this right.'

strategic

Lance A. Ito•Rockne Harmon•Johnnie Cochran

After the judge jokes about out-of-town lawyers, Harmon claims to feel like a local Angelino, drawing an emphatic 'No, no, no, no, no' from Cochran.

light

Light Moments (3)

Lance A. Ito

Judge Ito jokes about the difficulty of trying a case with all out-of-town lawyers.

Rockne Harmon

Harmon claims 'I feel like an Angelino now,' which Cochran immediately and emphatically rejects.

Barry Scheck

Scheck ribbed Harmon about being 'the one that elicited all that stuff about northern and southern California.'

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 6066 • 31 utterances

Criminal Trial

Department 103