Sidebar: item 117 RFLP

📄 Sidebar: item 117 RFLP — Wednesday, May 17, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\17\SIDEBAR-ITEM-117-RFLP.DOC

TRIAL

▲ Day 76 of 167

◀ Direct examination of Gary Sims (afternoon, part 1) Afternoon session opening ▶

Date: Wednesday, May 17, 1995 • Utterances: 35

At a bench conference, defense attorney Barry Scheck offered to allow prosecutor Rockne Harmon to introduce RFLP results for item 117 (a seven-probe match from the Rockingham gate) during current testimony rather than recalling the witness later. Harmon declined, claiming he wasn't prepared and lacked the autorads, while repeatedly suggesting Scheck had an ulterior motive. The conference ended with Ito encouraging both sides to move the testimony along and confirming that DNA statistician Dr. Weir would be called.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

All right. We are over at the side bar.

# 3 MR. SCHECK:

There is a seven-probe match on item no. 117 from the gate, and I am aware of it, and I asked Mr. Harmon today, and previously I indicated to him that I certainly have no objection to him bringing this out in his testimony right now, rather than calling this witness back.

KEY QUOTE

# 4 THE COURT:

Okay.

# 5 MR. HARMON:

I am kind of shocked to hear this acquiescence because if you recall--no, if you recall, I said I wasn't going to present it and I'm not prepared, so I am--

# 6 THE COURT:

Hold on.

# 7 MR. HARMON:

--I am not prepared to do that today.

# 8 MR. SCHECK:

Well, as a matter of fact, what I requested with respect to these samples before when we had the issue arise, since this testimony is ongoing during the course of the proceedings and we had this problem with reporting the results of 115 and 116 before they were done, at that time I requested of the Court that we have reports of the results as they came in. Now, it seems to me that he doesn't want to bring it out, I intend to bring it out. I don't want something coming out later that makes it look like there is something more there. I want to go into an inquiry as to--

# 9 THE COURT:

Well, we probably--

# 10 MR. SCHECK:

115, 116, 117. I want to go into the status and I'm giving him fair notice.

# 11 THE COURT:

We probably won't finish with him.

# 12 MR. HARMON:

I think we noticed to have some discussion on this, because this is the most bizarre, insincere--there is something else going on here, Judge, and you know that and I know that.

# 13 THE COURT:

Mr. Harmon, hold on. He offered to let you put there in now. If you want to do it, do it. If you want the evening to think about it, fine.

# 14 MR. HARMON:

No. We don't have the autorads, but this idea that he is going to elicit the RFLP results at this point when it is beyond the scope of direct examination--

# 15 THE COURT:

Well, let's see how far you get with your direct today.

# 16 MR. HARMON:

I haven't reviewed his notes. I mean, I'm very meticulous with this, and if you want to review back, Judge--

# 17 THE COURT:

Rock, it is just an offer. Think about it.

KEY QUOTE

# 18 MR. HARMON:

It is not an offer, your Honor.

# 19 THE COURT:

Well, I would encourage you to think about it simply so that we can move this along.

# 20 MR. HARMON:

I understand. The amount of time--

# 21 MR. SCHECK:

I would expect to be finished today.

# 22 MR. HARMON:

The amount of time it will take today to present it is the same amount of time that it will take in a few weeks. There is something else going on here and you know that and I know that.

# 23 THE COURT:

Hold on. Hold on. Putting all that aside--

# 24 MR. HARMON:

Okay.

# 25 THE COURT:

How much--

# 26 MR. HARMON:

It is hard to, though.

# 27 THE COURT:

Putting all that aside, how much more do you have with this guy?

# 28 MR. HARMON:

This is a four o'clock day?

# 29 THE COURT:

Yes.

# 30 MR. HARMON:

I want to talk about contamination, degradation and I'm going to try to pick it up, but the logistics of these things will slow things down. We are pretty much beyond all of these displays, now so depending on how many objections there are.

# 31 THE COURT:

Have there been many?

# 32 MR. HARMON:

Continue that and I can--so I'm going to try to do it this afternoon. We've got the statistics. If I have to do a broad going back to his credentials--that is one way we can acquiesce and speed things up. Let him calculate across the lanes and that will really speed things up.

# 33 THE COURT:

Oh, get Dr. Weir in here.

# 34 MR. HARMON:

He is coming. He is coming for sure. No question he is coming.

# 35 THE COURT:

Okay. Thanks for the offer.

Temperature

tense

Key Quotes (4)

Barry Scheck

There is a seven-probe match on item no. 117 from the gate, and I am aware of it, and I asked Mr. Harmon today, and previously I indicated to him that I certainly have no objection to him bringing this out in his testimony right now

Scheck's offer to let prosecution introduce the item 117 RFLP match immediately is strategically surprising — he wants to control the narrative rather than let damaging evidence surface later under worse circumstances.

Rockne Harmon

There is something else going on here, Judge, and you know that and I know that.

Harmon openly accuses Scheck of bad faith, suggesting the offer is a trap or strategic maneuver rather than genuine cooperation.

Barry Scheck

I don't want something coming out later that makes it look like there is something more there.

Reveals Scheck's defensive rationale — he fears a suppressed or delayed result will appear more damning than introducing it now on his own terms.

Lance A. Ito

Rock, it is just an offer. Think about it.

Ito's relaxed tone and use of Harmon's nickname illustrates the informal dynamic of this civil trial bench, while gently pushing Harmon toward efficiency.

Evidence (3)

Informal

Item 117 — blood from the Rockingham gate, subject of a seven-probe RFLP match

discussed; prosecution declined to introduce during current testimony

Informal

Items 115 and 116 — prior DNA samples whose results were reported during ongoing proceedings

referenced as precedent for Scheck's request to have results reported as they came in

Informal

Autorads (autoradiographs) for item 117 RFLP testing

cited by Harmon as unavailable, reason for declining to present now

Notable Exchanges (3)

Barry Scheck•Rockne Harmon

Scheck offered to allow Harmon to introduce item 117's seven-probe RFLP match immediately; Harmon refused and accused Scheck of having a hidden agenda, repeating twice that 'there is something else going on here.'

strategic/suspicious

Lance A. Ito•Rockne Harmon

Ito repeatedly tried to redirect Harmon away from his suspicions and toward practical scheduling, using Harmon's nickname 'Rock' and suggesting he simply think about the offer.

calming/pragmatic

Rockne Harmon•Lance A. Ito

Harmon floated the idea of letting the DNA expert calculate statistics 'across the lanes' as a way to speed things up, and confirmed Dr. Weir is coming.

procedural

Objections

None recorded

Proceeding 6082 • 35 utterances

Criminal Trial

Department 103