Let's have it quiet, please. All the jurors have withdrawn from the courtroom. Mr. Harmon, which board are we talking about?
Umm, the boards in question are the glove photo board, no. 9 photo board that we have not yet marked.
And there were some--Mr. Scheck had expressed some concerns about the way we have presented the information there, so can we start with the glove photo board, put it up there.
Yes, which we will show you next. It might make sense to look at them both together since they will be displayed together. Could you do that for us?
Your Honor, it is the same objection we made before and I think that--I think the difficulty for the Court at this point in time is that to be consistent in the results that have been made with the previous boards, if I were in your position, umm, at this point, and in the interests of moving on, I might be inclined not to be consistent in the rulings. But the point is, is that these objections were made known to them a long time ago with the boards and they have done nothing to conform them. The problem here is the 352 problem and the argumentative problem that the Court has been dealing with with respect to boards and has been consistent and very, very strict in the rulings. If you look at the Rockingham blood result board, what they are trying to indicate here is that for various different stains, G10, for example, G9, that that is Mr. Goldman's blood. For G12 that that is Mr. Goldman and Miss Nicole Brown Simpson's blood, even with respect to the mixtures, umm, they are making assertions that these are the mixtures of the blood of these various different individuals, as opposed to--as opposed to, umm, simply stating that they are markers and markers that have different frequencies and dramatically different frequencies. Some of these, umm, results that are reflected in the "g" numbers on the Rockingham glove result boards, umm, are RFLP test results, umm, which concededly will have frequencies which are much rarer, dramatically rarer than the mixture--the--the D1S80 results with respect to Mr. Simpson on the glove, which is extremely common, and then when the aggregate frequency comes in with respect to the mixture, necessarily extraordinarily common. So it seems to me that it gets extremely misleading and it is a terrible 352 problem. We have tried to be very careful in not, umm, mixing up people with respect to these results. I pointed out to them just the other day that it is going to be--umm, the prejudice of the glove result board, umm, is compounded by the fact that they are giving "g" numbers. You know, if they want to say, well, we won't mislead the jury because we are giving statistics and not excluded results on the result board, umm, it is going to be very hard to link them up because they are having even different numbers. Now, they knew that this was a problem, they knew what the Court's rulings had been on the previous boards. They made absolutely no effort to conform. This has been pending, you know, really for--umm, ever since we dealt with the first board with Mr. Clarke. They knew exactly what the problem was, exactly what the rulings had been, exactly how they should be conformed and they just didn't bother. And so now the Court is confronted with a situation where we all want to move on with this testimony, we all want to get through this. And they think they can, you know, slide it past and the Court won't be consistent with its rulings and I just urge you to be consistent in your rulings.
So your objection is that the names of the individuals that are not excluded should be taken off of the Rockingham glove blood results and that the items number G1 through 13 should remain--excuse me--G1 through 14 should remain to indicate where on the glove the samples were taken?
In fact, your solution was better than the one I proposed the other day, which is not uncommon when it comes to the boards.
KEY QUOTEYour Honor, I promise you that I will never show one board without the other board. If I could hinge them together to ensure that that will never happen, even when I'm not here, I would do that, but our easel couldn't hold it. Here is the problem. We have the same names over there that we have here, and if the jury is going to see them all together, how argumentative is it to have--is it to have the same names there that we have here? For example, G13, you want, I can uncover G13 and you see it says it is consistent with a mixture of Ronald Goldman, Nicole Brown and Orenthal Simpson. That is what we have over there. That is the same mixtures we have on G11. So while it may be devastating to see the same thing in two places, how can it be prejudicial if I assure you to the best of my human ability that they will never be seen separately?
If the Court--the frequencies are all different, the statistical significance, even assuming all this comes in, is all different. The mixture numbers aren't even here. The rarity of these mixtures and the significance one can draw with them, which is the essence of understanding DNA evidence, is all different and this board is purposely designed to say this is whose blood it is and this kind of mixture form, and that is argumentative with respect to these results.
Should I say something, your Honor? They are going to be seen together. There is nothing different here. What they are doing is it is the same whipsaw that forced us to calculate mixtures when virtually everything is shaded there, and we will do that later, and I--you heard how we just explained just the RFLP results and what he can say and what he can't say about it. There--and given the eloquence and the credentials of Mr. Scheck and Mr. Neufeld, there is no question that if I overstate the significance of anything, we will be humiliated and the commentators will have a heyday with us overstepping.
Much less to--since they don't know what they are talking about either. All right. Here is the problem, though. We do have various different results because we have different tests. This board gives the impression that these are results, not results that--not non-exclusions, which is what these really are. I agree with you, it will be very helpful. It is helpful to me to look at this exhibit. It has great probative value telling me where these samples were taken on the glove. This is the first time that I can now picture where the samples were taken and it allows the finder of fact to think more clearly as to how that blood got where it is.
Could we have a "not excluded" patch? Would that help to--do we have a "not excluded" patch? We have a lot of them so--
We have a "not excluded" patch. You see, this board started out with a possible source. Now we can say possible source, but we can't put it on the board, so we have been forced to put "not excluded" on the column there, so to get a little symmetry here let's put "not excluded" on this board.
You know what, if we can--if we can get--I will defer until after the lunch hour if a "not excluded" patch will suffice on the top of the board and we--we had "possible source" on it and just got rid of it because of the anxiety that that created.
All right. Let me see it with a "non-excluded" after the lunch hour. All right. Let's proceed.
Your Honor, could--just in--that is not going to solve the problem with respect to the mixtures and the different probabilities. My suggestion is that--is the one that the Court raised and could they also prepare something that, umm, would take this board in conjunction with the result board which I think would be a far more accurate and not confusing way. I mean, whereas you would see, in connection with the result board, exactly which location is referred to in terms of the different patterns, the "not excluded" and the frequencies, so they would be linked up, but does not, umm, make the confusing and argumentative kind of assertions here. So if you could ask for the--I would ask that they prepare a back-up system of patches just in case.
All right. I'm going to direct the Prosecution to prepare a "not excluded" addition to the Rockingham glove blood results board and when we mark these for identification purposes they will be to whatever it is, A and B, so that they are always part of the same exhibit. All right. That is the order. Let's proceed. Let's have the jury, please. Take the glove photograph down.
Your Honor, maybe we could take one off the Rockingham board right now and put it up and we will make sure that that doesn't ever get shown to the jury.
They knew exactly what the problem was, exactly what the rulings had been, exactly how they should be conformed and they just didn't bother.
Your first mistake is to listen to the commentators.
This is the first time that I can now picture where the samples were taken and it allows the finder of fact to think more clearly as to how that blood got where it is.
your solution was better than the one I proposed the other day, which is not uncommon when it comes to the boards.