Procedural matters

📄 Procedural matters — Wednesday, May 17, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\17\PROCEDURAL-MATTERS.DOC

TRIAL

▲ Day 76 of 167

◀ Scheduling and procedural discussion Direct examination of Gary Sims (morning, part 1) ▶

Date: Wednesday, May 17, 1995 • Utterances: 36

Pre-testimony housekeeping session before the jury was brought in, focused on managing the upcoming DNA statistical frequency evidence from Dr. Weir. Scheck asked Harmon to flag when he'd introduce frequency statistics so they could work out ground rules at sidebar rather than objecting in front of the jury. Harmon also sought clarification on exhibits 47 and 50 and what foundation he could still lay with witness Gary Sims regarding chain of custody.

# 1 (Appearances as heretofore noted.)

# 2 (Janet M. Moxham, CSR no. 4855, official reporter.)

# 3 (Christine M. Olson, CSR no. 2378, official reporter.)

# 4 (The following proceedings were held in open court, out of the presence of the jury:)

# 5 THE COURT:

All right. Good morning, counsel. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Mr. Darden and Mr. Harmon. The jury is not present. Counsel, is there anything we need to take up before we invite the jurors in?

# 6 MR. SCHECK:

I just want to ask, I spoke to Mr. Harmon about indicating to us when he was going to introduce frequencies so that instead of objecting in front of the jury, or just working out the groundrules as to what this witness can and cannot testify to. Particularly since Dr. Weir is coming, what databases he is going to be using or not using, I want to work it out at the side bar.

KEY QUOTE

# 7 THE COURT:

All right. But I take it we are going to go through more autorads this morning?

# 8 MR. HARMON:

Yes, your Honor. At best we will get to the statistics before lunch, so at best--

# 9 THE COURT:

At best. I think at best as well.

# 10 MR. HARMON:

I do, too.

# 11 MR. SCHECK:

One last thing, and that is in a friendly way I would request that Mr. Harmon not bring up teaching with this witness and his personal--there were some references--I didn't object to it at the time--but I thought that those were inappropriate.

# 12 THE COURT:

Not particularly relevant at this point.

# 13 MR. SCHECK:

I think it is vouching and it should be--

# 14 THE COURT:

All right. Mr. Harmon, I'm going to direct you to let me know when you move into the statistics part, the analysis part of the evidence.

# 15 MR. HARMON:

Presenting statistics?

# 16 THE COURT:

Yes.

# 17 MR. HARMON:

Yes, your Honor. Your Honor, I have--I am a little confused on where we are with 47 and 50 right now because there is some more foundation I can lay with Mr. Sims and I don't want to violate--it is kind of fuzzy where we are with it and I would like you to remind me where we went yesterday so--

# 18 THE COURT:

What do you have left to do? I thought we were doing probes.

# 19 MR. HARMON:

Well, we were, but because I thought it was clear where we were before yesterday, I--Mr. Sims hasn't carefully described what was on the bindles when he received them, and I intend to--to have him do that as a matter of the chain of custody of these items.

# 20 THE COURT:

What was on it when he received it?

# 21 MR. HARMON:

Yes.

# 22 THE COURT:

All right.

# 23 MR. HARMON:

I mean, you know, then--anybody can subtract what is on there now, so--

KEY QUOTE

# 24 THE COURT:

All right.

# 25 MR. HARMON:

And I want him--I will be very careful with this, but as a matter of the chain of custody, I intend to, with the Court's permission, to elicit what was on--what was on those bindles when he received them and then I intend to show him the board, 47, 50, and ask him, not what Mr. Scheck doesn't want me to ask him, but are those the bindles that he received and leave it at that.

# 26 THE COURT:

Mr. Scheck.

# 27 MR. SCHECK:

If he directs him to say which initials were on it when he received it and puts them away and doesn't do any French pastry or any schtick, you know, that is what your ruling was.

KEY QUOTE

# 28 THE COURT:

All right. All right. Let's proceed.

# 29 MR. HARMON:

So I can show him the board?

# 30 THE COURT:

You can show him the board.

# 31 MR. HARMON:

Limit it to that?

# 32 THE COURT:

Correct.

# 33 THE COURT:

All right. Let's have the jurors.

# 34 (Discussion held off the record between the Deputy District Attorneys.)

# 35 THE COURT:

And let me see Mr. Darden and Mr. Cochran without the court reporter, please.

# 36 (A conference was held at the bench, not reported.)

Temperature

procedural

Key Quotes (3)

Barry Scheck

If he directs him to say which initials were on it when he received it and puts them away and doesn't do any French pastry or any schtick, you know, that is what your ruling was.

Scheck invokes a prior ruling and colorfully warns Harmon not to grandstand with the evidence boards — 'French pastry or schtick' captures the adversarial theater of the DNA phase.

Barry Scheck

I just want to ask, I spoke to Mr. Harmon about indicating to us when he was going to introduce frequencies so that instead of objecting in front of the jury, or just working out the groundrules as to what this witness can and cannot testify to.

Shows the defense proactively trying to litigate DNA statistics outside the jury's presence — a strategic move to shape the evidence before it lands.

Rockne Harmon

I mean, you know, then--anybody can subtract what is on there now, so--

Harmon obliquely acknowledges the degradation/consumption issue with the bindle evidence, which was a live chain-of-custody dispute.

Evidence (2)

People's 47

Evidence board related to DNA bindles received by Gary Sims

discussed; Harmon seeks permission to show to witness for chain of custody identification

People's 50

Evidence board related to DNA bindles received by Gary Sims

discussed alongside exhibit 47; same chain of custody purpose

Notable Exchanges (2)

Barry Scheck•Rockne Harmon•Lance A. Ito

Scheck requests Harmon not vouch for the witness by referencing his teaching credentials; Ito agrees it is 'not particularly relevant' and directs Harmon accordingly.

strategic

Rockne Harmon•Lance A. Ito

Harmon expresses confusion about where exhibits 47 and 50 stand procedurally and asks the judge to remind him of the prior day's ruling; Ito grants limited permission to show the boards for chain of custody only.

procedural

Light Moments (2)

Barry Scheck

Scheck warns Harmon against 'French pastry or any schtick' when handling the evidence boards, a vivid idiom for courtroom showboating.

Lance A. Ito

Ito deadpans 'At best. I think at best as well' after Harmon's optimistic prediction about reaching statistics before lunch.

Objections

None recorded

Proceeding 6085 • 36 utterances

Criminal Trial

Department 103