All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Neufeld, People represented by Mr. Darden and Mr. Harmon. Mr. Neufeld, where is Mr. Scheck?
Okay. Anything we can take up? Any other procedural matters or do we--I guess we need Mr. Scheck for all of our other discussions.
There's one board we had showed Mr. Scheck the other day that I don't know if you looked at it. It's a report or a board that shows RFLP results only. And if you'd like, I can show it to you, and then Mr. Scheck, if there's an objection, can articulate it.
Your Honor, I do have an objection as to this board. I mean, I think it's cumulative at this point. All these results are already up and on those boards, and to put them up again and again like this I think becomes unduly confusing. It makes--I mean it's hard to keep track of all the results, and if you create another board with the same results yet again, it begins to seem like there's more than there is. So I think this is a 352 problem.
All right. The title of this board is "results of RFLP DNA analysis" and it purports to collect--Mr. Harmon, is this all the RFLP?
Except we've got 117 covered up because that hasn't been recorded yet and those probes are still accumulating. That's why we have it covered up.
That have been presented to the jury, yes, your Honor. And the context in which--once we--once you rule on the statistical questions that we tell have to resolve, I intend to discuss degradation, contamination, cross-contamination for a short period of time and then discuss this case with Mr. Sims as if it were an RFLP case only and evaluate the evidence in the context of no concern for cross-contamination because of the exquisite sensitivity of PCR. You've heard the slogans all along here, but that's the context that I intend to show this board to Mr. Sims very briefly. If Mr.--I mean, it is also--
Why don't you address Mr. Scheck's two direct objections; one, that it's redundant, and, two, that it has a tendency to be misleading because it seems to say that there are additional results, more than what's already on the board that we have. That's how I understand Mr. Scheck's objection.
Well, it's hard to imagine how it would seem to say that there are additional results when--if that's a concern of his, I will make it clear as a foundational question for Mr. Sims that these do not represent additional results. These represent--well, we can dispense with that if that's the concern. You know, the term "redundancy," as we discussed yesterday, may have a legal implication to you, but in the scientific context and some of the articles, we will--the scientific articles by Dr. Edward Blake, the question of redundancy in repeat analyses has a very positive implication that disabuses one of the notions that the Defense has cleverly planted in this case. So "redundancy" is a very powerful word in the scientific context and especially in this case.
It is not redundant in the scientific context and, therefore, it should not be considered as redundant in the legal context. It is a powerful scientific redundancy that--we can--if you want to put a time limit on it, I can do it in three and a half minutes. If I overstep that, I'll be happy for you to pull the plug on me, but I think it is a powerful point. That in the scientific context, that redundancy addresses all of these improbable hypothetical--
You're still not addressing my concern, that it's cumulative, that we already have these results on other exhibits.
Well, this case is cumulative, your Honor. It is. I mean, that's the point of it. This case is cumulative, and the fact that we have produced an accumulation of scientific results shouldn't preclude us from demonstrating the scientific redundancy. It's not irrelevant. It's not cumulative.
KEY QUOTEI will ask--I will address it after--you know, maybe the best thing to do is try to address it in the next break after you hear Mr. Sims' testimony and his extensive reliance on the publications of Dr. Blake to address this very point. Maybe that's the best thing. Let me try to lay a foundation for it. And at that point, if you want to put a time limit or a number limit on my questions, I'll be happy to--it's not going to take a lot of time, your Honor.
I will avoid that point. Even if we do, I'll move on and then ask you to reconsider at that point.
All right. We also had the issue regarding the articles that you wanted the Court to consider. Mr. Harmon, do you have any other comment?
No, your Honor. Those articles speak for themselves and they clarify the concerns that Mr. Scheck had yesterday.
I don't think they are. The one concern I had is that they already elicited testimony where they were able to multiply the D1S80 against the DQ-Alpha.
Well, I assume this is for the purposes of any motion to strike or any further remedies you might seek if it's not--if the conclusions that Mr. Sims reached are not supported in the scientific literature.
No. I think that the nature of the objection was that--had to do with the level of his expertise to rely on that particular document. That is--that is different than compiling a database. In other words, if you compile a database and you do a study from one particular system, that's one thing. But to claim he has the expertise to say that you can do a chain multiplication between systems is quite another. And that one suggestion in that publication most recently based on that data, I don't think he has the expertise to draw that additional inference. And if anyone were to do that, it would probably be a qualified population geneticist or biostatistician, whom they're going to be calling. So it seems to me that it really is--I understand the Court's previous ruling about these systems in place and plugging in the numbers from the database as within this witness' expertise because of the way the systems were produced and established. But I think that this is just an inference beyond which he--it's really fair for him to comment at this point.
It sounds like we're relitigating what was conceded now, that he's not supposed to be able to multiply. I mean, if you recall the events of yesterday, we pinpointed it during the break. And so you've already deemed him qualified to do that, and now the question that I perceive and I know the record bears me out on this is, his sole remaining objection was the independence of these markers. And those articles specifically address that. And so the sole question that--the burning question of yesterday was, could he multiply the Cellmark markers by the D1S80 markers, and that question was based on Mr. Scheck's representations that they may not be independent, not that Mr. Sims was not qualified. I appreciate why it's painful to hear this stuff, but that was the issue yesterday, and I think that's the only issue that we addressed in those articles and the articles are clear.
My point is this. He's not qualified to make the assessment based on this one article recently produced in this context. I understood the Court's previous rulings, looking at all this literature and all the foundation and all the cases, was that if--and the foundation that was laid, is that if you have a system which they created a database, there's been a number of publications and studies and he is a user essentially of the database and the system that's presented to him, can say, "I've scored this band," or, "I've recognized this allele and I go to some published table and I can generate numbers based on that published table," that that was a sufficient foundation in the way the Court's ruling, and his expertise is sufficient to do that. When you're now asking to conduct the chain multiplication of different marker systems, I don't think that this is an adequate foundation in terms of this witness' expertise to evaluate this literature and say it's okay to do this additional chain multiplication. And I think it's evident from the way the numbers rapidly escalate, that it's no small matter to say that, let's do a chain multiplication of frequencies on the order of 1 in 10 for DQ-Alpha, then we'll multiply them on a chain multiplication against D1S80 and poly-markers, and all of a sudden, you're looking at much rarer frequencies than you started with. So that that is a leap that I don't think this witness is within the foundational perimeters this Court has set out is qualified to make.
All right. Thank you. All right. The objection will be overruled. And, Mrs. Robertson, let me ask you to mark these articles that were submitted to the Court as Court's exhibit.
I'm curious about a lot of things. Do we have to do this right now rather than take up jury time?
May I ask the Court when we are going to be able to be heard on the most recently filed motion?
if you create another board with the same results yet again, it begins to seem like there's more than there is. So I think this is a 352 problem.
This case is cumulative, your Honor. It is. I mean, that's the point of it. This case is cumulative, and the fact that we have produced an accumulation of scientific results shouldn't preclude us from demonstrating the scientific redundancy.
all of a sudden, you're looking at much rarer frequencies than you started with. So that that is a leap that I don't think this witness is within the foundational perimeters this Court has set out is qualified to make.
At least the jury's not here.