All right. The record should reflect the jurors have withdrawn from the courtroom. Mr. Scheck, you wanted to add some additional commentary to your objection?
Yes. If the Court follows, and I realize that these things are complicated at the end of the day, and I am trying to abide by the Court's rulings with respect to not making speaking objections and argument when the hypothetical questions are being asked, but the--the problem I have with Mr. Harmon's hypotheticals is that he asked one series of hypothetical questions based on what happened to the specimens into the evidence processing room and his whole--the long hypothetical was based on exposure to the reference sample. And he stopped the first hypothetical with the reference sample being in the plastic bag. Then he asked another hypothetical, continuing in that point where he talked about the swatches being in the bindles, leaving out the scraping them out of the test-tubes and the rest of it. And then asked a further question about exposure, cross-contamination, exposure to the reference tube. What he did not include in the hypothetical was the fact that the reference sample was brought into the evidence processing room, as he well knows from all his questions in the upcoming testimony of Mr. Yamauchi, poured out into a card at the same time as the other samples are there. Now, that is the most critical question in the hypothetical with respect to cross-contamination of the reference sample and so asking those two hypotheticals in that fashion and leaving out that critical step was extremely misleading because it didn't even include the most important fact and that was exposure to the reference sample. And that is what I wanted to add because I think that that was extremely misleading. Also, he is asking only one question here and that has to do with substrate control and he is asking the same question 25 times and so that was the basis of my objections to these hypotheticals in this fashion. The other thing that bothered me with respect to--I wanted to put on the record before, and that is I thought we had some understandings about what was going to be said and not said concerning the perfectly proper and in this case indispensable efforts of the Defense expert to sit there and provide documentation of the results.
Well, after you made a comment and the objection we didn't hear anything more about Dr. Blake.
What we heard was continued questions about, well, you took a look at that photograph there and Dr. Blake was there when that photograph was taken and Dr. Blake was there when that was reviewed, implying that he had--he said something to this witness with respect to whether the call was right or wrong when the witness had previously testified that he had nothing. And what upsets me, your Honor, is that this Prosecutor refused to turn over their pictures, their pictures of the strips and the D1S80 hybridizations to us on the grounds that we had Dr. Blake there taking the pictures. And it is perfectly evident that the reason that he refused to do that is that he wants to ask a question and a series of questions about Dr. Blake being there taking the pictures.
So I don't have available to me the pictures that this witness used and this witness took. Instead I have to use the pictures which he doesn't introduce on direct examination saying he showed him one dot-blot strip. I had to do that. Now, the pictures I have are my pictures, the ones that Dr. Blake took. And then on redirect examination this whole thing was completely planned and orchestrated to do indirectly what he can't do, which is trying to inject somehow that Dr. Blake approves of this witness' procedures and that his presence in that laboratory has some significance different than what we all know it has, which is simply to document. Now, I have no compunction whatsoever with respect to Dr. Blake being there, documenting this and everything else. What I think is improper, highly improperly, and it is exactly what this Prosecutor has been trying to do from beginning to end, is simply that Dr. Blake has ever told this witness anything about whether his results are right or wrong and that is what he is has been trying to do throughout all of this and this business with the pictures is real dirty pool because he refused to turn over those pictures which I am ordinarily entitled to in discovery. I wind up turning over all my pictures to him and I think that was wrong.
This is really amusing, your Honor. On a day when we had to force our witness to assume something that was inconsistent with his opinion, the same day when I ask a hypothetical that is consistent with many of the facts, they want to force me to add something to the hypothetical. It is kind of like our board there and say you can't use those boards until we put what we want you to put up there. Umm, you know, I think if you just decided this fairly and equally you would realize that while this is painful, painful, painful to hear about substrate controls, they are the key to this case. And if my hypothetical is woefully deficient in light of the facts of this case, the jury is going to scoff at me and reject our suggestion that there is no problem here. I don't think we are too worried about that, your Honor. But clearly they want to ask hypotheticals that have nothing, absolutely nothing to do with this case, and they want to show the beautiful strips up there and show artifacts and then when we have hypotheticals that are based on the clear unmistakable facts, you really can't screw this up if you have substrate controls and they test clean, they want me to add a whole bunch of other things. Collin Yamauchi--we will cover all this when Collin comes in, but I think I should be able to address hypotheticals. Mine are at least based on some facts. We don't have to make a guy have an out-of-body experience to pretend he has an opinion other than he does. So I think I'm totally consistent with the case law, and I know it is painful for them, but sometimes the case law makes it painful for Defense attorneys, as well as Prosecutors. On those other points, I--
On those other points, I didn't refuse to turn them over. I have always told you if you tell me to do something, I will do it because you've told me to. We argued this point. I wish I was as brilliant as they claim. You know, this was about four months ago that this was all planned out. It didn't happen that way. I think we have to, you know--parenthetically, does Dr. Blake approve? Well, you would have to be a fool when you look at their March 17th letter dumping him from the witness list to realize that the answer is of course he does. That is why is not on the witness list and that he will never get the blue chair treatment in this courtroom because he does approve. So I understand how painful it is at this point to have the door start closing, your Honor, but the law provides me an opportunity to do what I've done and I've done it and the record is clear on that point.
Your Honor, he didn't answer the question that you asked him. You heard what I proposed. The question is in this hypothetical that he asked about exposure of the Defendant's reference sample to the specimens. In his second hypothetical he did not include the exposure of the Defendant's reference sample to the specimens. That was the only issue. As to the issue of substrate controls, that will obviously be dealt with, but that was the point of his hypothetical and he left out the most important fact in his hypothetical when he went through his continuation and that is what I consider improper and misleading. It is clear he did that and that whole long-winded answer about how all these things are so painful and all the rest of it, he doesn't answer the question.
Wait, wait, counsel. You are under instructions not to address each other. Address your comments to the Court.
I haven't collected any money this week, have I? You guys are close. Mr. Harmon.
KEY QUOTEThere is a simple reason. Collin Yamauchi hasn't testified yet. When he testifies and I lay the foundation for what really happened at that point, then I will be glad to, or if I don't, then Mr. Scheck will be happy to, but having recently spent many hours with him, it is really not quite the way Mr. Scheck thinks it happened, so I will be happy to, when there is evidence, contrary to what they do about, you know, pretending that things are other than the way they really are, I will be happy to ask that hypothetical when there is a factual basis for it and we will probably start hitting on that tomorrow afternoon, your Honor. And then I will be happy--if Mr. Scheck wants to take mine and add to that, I will be happy to ask it on direct examination of Mr. Yamauchi for him, so we don't have this problem again, but the hypothetical is really just based on what has been presented in this case to date. We sure don't want to confuse the jury and have them think that they heard something that they didn't hear yet.
All right. Thank you, counsel. All right. The Court's ruling regarding the appropriateness of the hypothetical Mr. Harmon, I am concerned, however, about the inferences regarding Dr. Blake's participation. His presence is certainly something you can go into. However, any inference that he conducted testing or approves or disapproves of anything that was done is off--off limits.
Your Honor, could I just make one last inquiry? Do we have any news on the gate stain?
Good afternoon, your Honor. Your Honor, over the weekend I had occasion to speak personally with Dr. Michael Baden and Dr. Barbara Wolf. I attempted to speak with Dr. Lee about this. He was on travel, although both of them had conversations with Dr. Lee. Doctors Baden and Wolf were present at the Bundy crime scene, your Honor, on June 24th and they were allowed into the crime scene on that occasion by Mr. Lewis brown who was also present. At that time they tell me that the crime scene had already been washed down. They tell me that they never visited the crime scene on June the 17th as may have been suggested. At no time on that occasion, your Honor, did they touch, handle or remove any stains related to the rear gate or items 115, 116 or 117. The following day, your Honor, on June the 25th, they returned to the--to the same location with Dr. Lee and again on that day they did not touch, handle or remove anything related to any stains related to the rear gate. They noted at that time that that rear gate had all kinds of powder from fingerprinting and they did not handle it. They object, your Honor, to any suggestions that they caused the removal of any stains from that gate and they played no role in doing anything like that. I'm informed, your Honor, that there were some notes that were prepared by Dr. Lee that wrote down that the visit had occurred on the 17th, but in fact Wolf and Baden had come on the 24th. Lee joined them Saturday, the 25th.
All right. So your representation to the Court is that none of these persons took any sample from that scene?
Okay. What I would like the Court to do is as I mentioned, things have gotten chopped up in this camera review. I would request the Court to review any notes to ensure that this is not something in there and then that is the end of it, if the Court can do that.
All right. I don't recollect any discussions regarding anything regarding any of the expert examinations of the Bundy crime scene.
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
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 151 pages 28537 - 28812
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Day date session page vol.
Monday May 22, 1995 A.M. 28537 151 P.M. 28663 151
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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 151 (Resumed) 28542bs (Resumed) 28671bs 28703rh
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ALPHABETICAL INDEX of witnesses
Witnesses direct cross redirect recross vol.
Sims, Gary 151 (Resumed) 28542bs (Resumed) 28671bs 28703rh
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
274 - photograph of 28731 151 6 DQ-Alpha polymarker strips-hybridization
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1165 - chart 28542 151 entitled "Defense hypothetical"
1166 - photograph of 28581 151 12 DQ-Alpha polymarker strips
1166-A - photograph of 28637 151 12 DQ-Alpha polymarker strips with 2 arrows
1166-B - photograph of 28635 151 12 DQ-Alpha polymarker strips with 2 green arrows
1167 - photograph of 28613 151 the console area of Bronco vehicle
1168 - photograph of 28645 151 11 DQ-Alpha polymarker strips of evidence collected at Bundy
1169 - 2-page document 28677 151 entitled "2-Person Genotype Combinations Which When Combined with O.J. Simpson's Genotype will Account for DQ-Alpha Alleles in Stain No. 303."
1170 - photograph of 28683 151 8 DQ-Alpha polymarker strips
1171 - chart drawn by 28699 151 Mr. Scheck
What he did not include in the hypothetical was the fact that the reference sample was brought into the evidence processing room, as he well knows from all his questions in the upcoming testimony of Mr. Yamauchi, poured out into a card at the same time as the other samples are there.
This business with the pictures is real dirty pool because he refused to turn over those pictures which I am ordinarily entitled to in discovery. I wind up turning over all my pictures to him and I think that was wrong.
You would have to be a fool when you look at their March 17th letter dumping him from the witness list to realize that the answer is of course he does. That is why he is not on the witness list and that he will never get the blue chair treatment in this courtroom because he does approve.
I haven't collected any money this week, have I? You guys are close.
At no time on that occasion, your Honor, did they touch, handle or remove any stains related to the rear gate or items 115, 116 or 117.