Okay. Actually, it may not. Maybe we need to recap our off the record discussion yesterday, because I think it is helpful to see where we started and where we are going to end up with this, your Honor. Dr. Gerdes has been retained as a Defense expert in this case for some time. He has made laboratory visits to LAPD and I believe in January--in December he looked at many things in the lab. In January he photographed many records in the lab that were pursuant to court order and legitimate areas of inquiry by Dr. Gerdes. And as you know, we have consistently requested discovery material to be provided to us by Defense experts whom the Defense has actually put on their list, which one would assume means they have a reasonable expectation of calling them.
Dr. Gerdes, to my knowledge, has always been on the witness list in this case and I don't think we have ever gotten anything from him until, just coincidentally, before Mr. Yamauchi was about to hit the stand, we were given six pages on May 22nd. I'm not sure what today's date is, so that was just a couple of days ago. And it is a tabulation by Dr. Gerdes of things that he apparently reviewed and photographed and his opinions about them. I am well acquainted with Dr. Gerdes and I am well acquainted of the nature of his observations and evaluations of things, but it would appear that most of these things have nothing to do with Mr. Yamauchi; however, a significant number of them do. My ballpark count was 40 to 50 of these separate items relate to Mr. Yamauchi.
Well, you see, one of the problems is that I--this is what Dr. Gerdes has seen. This is his version of what he saw, but these are hybridization strips and sheets for PCR typing done by LAPD in general, and many of them, they are not all Mr. Yamauchi, because he is not the only one that does the PCR DQ-Alpha typing, so they are--these are--it is my understanding that Mr.--that Dr. Gerdes has only seen a hybridization sheet and the strips that are reflected in that hybridization that show the typing results and interpretations and the conclusion of the analyst. Umm, these--these items cover the time period--they go from `93 to `94, which is I think October, `93, to--through the latter part of `94, and, umm, some of them reflect actual--or yesterday, when the subject was broached, Mr. Scheck represented to you that these were LAPD's validation studies, and that is--that is hot necessarily true. That is partially--it is only partially true. And then I believe he corrected it to say, well, it is validation studies and case work. Umm, there are two issues here. Are these things relevant--are the ones that don't affect Mr. Yamauchi at all, where he didn't participate in any of the testing, are they relevant at all? And I'm assuming that absent some specific offer of proof, that they are not relevant, particularly when they are things that Mr. Yamauchi may not be familiar with. I mean, you can't make something relevant by asking a person about something they haven't done and then forcing them to look at it and say what do you think now, Mr. Yamauchi? There are a number of these things
That--as I said, 40 to 50 of these strips were sheets that do relate to Mr. Yamauchi. What the Court is not aware of is Mr. Yamauchi accepted his first PCR DQ-Alpha case in October of 1993. When I looked at this, I tried to segregate what Dr. Gerdes claims he saw with those dates because, you know, that could get relevant if given the right showing or offer of proof. And it would appear that about 18 of these strips--sheets, were after Mr. Yamauchi accepted his first case and 30 of them are before he accepted his first case. So--and I provide that to the Court to assist the Court. Once you hear whatever the offer of proof is, Mr. Scheck alluded to the fact that he was only going to ask a few general questions, and, you know, we might save a lot of time if he specifies what the questions are. There may not be any objection to this. We would welcome Dr. Gerdes coming in and testifying about this. I don't--if he couches his testimony correctly, it could be highly relevant, and we are anxious to hear that from him, but, umm, cross-examining Mr. Yamauchi about things that may or may not be relevant, most of which have nothing to do with him, I think absent some specific offer of proof, would be inappropriate. But Mr. Scheck assured you he only had a few questions. The problem with the few questions are, if there--the kind of questions that open it up to requiring us on redirect to go through each and every one of these, we will be happy to do that. Clearly Dr. Gerdes is misinformed on some of the things that he has said in here. I am not misinformed. This is what he does for a living. But I think absent some specific offer of proof, I time, the amount on cross that we spent with Renee Montgomery and her proficiency tests, so if we multiply 20 minutes by 40, we could spend days just showing that Dr. Gerdes' representation or his interpretation of this is at best misguided or misinformed. And we will be happy to do that. One of the problems is we don't--this requires a massive compilation of information. Some of these are actual cases and we are hot even sure that they are pending or not, so they may have to have some reduction to protect the names and identities of parties, so if it is a simple proper circumstances that Mr. Scheck--we are not trying to hide anything, but the way this gets done I think is important, and we will do whatever we can to present it fairly, but I think those are the caveats that absent some specific offer of proof at this point it may well be irrelevant. One could imagine Mr. Matheson being cross-examined by each and every one in a sexual serology case that he has ever done. Certainly that was not requested, umm, and I'm sure you would not to have allowed that, and absent a specific offer of proof, you shouldn't allow it in this case either, your Honor. I believe as well, if we are--if there is somebody--a specific offer of proof about that relates to this material, then I believe the Defense should provide us with the additional material that Dr. Gerdes refers to in the six pages that--that he provided us. Somehow we--we have been forced into the position, in terms of reciprocal discovery of this case, that Defense witnesses who are on the witness list for months and months are somehow shielded from providing material because that--I mean, there is a clear pattern to this--that somehow the Defense has been allowed to hold back material because they have convinced you in some way that it would effectively undermine their cross-examination of our witnesses. Or in the alternative, that in spite of the fact that they have expressed their clear intention to call these witnesses, that in--in in camera discussions it is--it is my impression that they have convinced you that even though they have put them on the list, which is a clear manifestation of their intent to call these people, that they have also alternatively told you, well, we are not sure that they are going to testify, because we want to see how well we do on cross-examination, and if we give the Prosecution the material that we intend to cross-examine their witnesses about, we will not be very effective in our cross-examination. And your Court orders clearly reject that proposition, but it is clear that is what is going on in this case, your Honor, so if there is an offer of proof, I would like to see the additional material that Dr. Gerdes has where he says "See analysis discussion for detailed explanation." We don't have that, and--and you know, honestly, if there is an offer of proof, we will need to have that. We had need time to review it so that we can have an intelligent discussion on--about the materials that have been withheld from us for much, much too long.
Your Honor, I don't know why these things have to take so long. We had a discussion about this. The record is clear. First we got some validation studies. We were able to review those strips. Then in the middle of January we were able to look at more of these strips. These are Dr. Gerdes' notes. What they reflect in the chart, as Mr. Harmon indicated, is that there were these dot-blot strips. At LAPD they record what they see and what they don't see. This is just a chart where Dr. Gerdes indicates this is what is seen. I saw this. This is a contaminant or not a contaminant. Out of an abundance of caution it struck me that these notes should be turned over, it is not a final report, to avoid all this. Umm, the bottom line here is that Dr. Gerdes and Mr. Yamauchi sat there and went over these strips one by one. As I indicated to the Court yesterday, I have no intention of going through these strips one by one at all with Mr. Yamauchi. The only question I'm going to ask him and where I think it is relevant, is I'm going to ask him some general questions about whether or not he thinks the LAPD DNA laboratory has a problem with contamination. And we will hear what he has to say and we'll accept his answer, and it is not my intention to go through these strips with him one by one in terms of the reading, but I just thought out of an abundance of caution I should give them Dr. Gerdes' notes which I'm not entirely sure I am obligated to turn over, but I thought I might as well just to make it clear to them. And this is something that Dr. Gerdes went over with Mr. Yamauchi and explained that there were two different--obviously, as is coming out in the testimony--as to the meaning of dot intensity and a significance that has, whether they are contaminants or not. That is all. So I'm just going to ask him that one general question that I indicated to you before, or the questions along those lines, and I'm not going through each of these strips with him one by one, so I have no intention of doing that, so I think it saves us all the trouble.
Isn't there a comment in the six pages of notes that this is an analysis that has been prepared?
Yes. In fact, I think the Court saw it. If the Court recalls, we were turned over some, but not all of these strips, so what we turned over to Mr. Harmon is an additional analysis of all the additional strips. Initially we got just some strips. And those comments refer to notes I think the Court has seen that are just general characterization summaries of what is on that chart, but not for everything that is on that chart, because he only had validation studies, and then in January he got additional case work and he hasn't done the additional summaries integrating everything else that he has. We will get that expeditiously. But all the data is there with respect to that. It is just a question of drafting them. But that is what those comments refer to, and I think if the Court goes back and looks at the note, you will see that it already has--
The raw data has. The overall analysis of each of those hasn't been done yet. Do you see what I'm saying? In other words, he got some of the data and the comments that Mr. Harmon is referring to are his--not his final report, because it doesn't refer to all of the data, it only refers to part of the data. What we gave Mr. Harmon are all of the data, all of his calls. It is just a question of characterizing--adding up and summarizing. That is all. It is just a question of making charts. So--but the point is, is that, you know, he has been very busy. We will get--we are working with him on charts and we will get the charts, but none of this is going to be gone into with Mr. Yamauchi.
No, not--what--how do you define a report? Report would consist of the raw data and the charts? Is there a final report? No, we have indicated to you there is no final report. Was there an interim report based on part of the data? Yeah, we showed that to you.
I'm sorry. Mr. Blasier told you about the interim report that was in draft form that wasn't a final report, that is what he tells me, not off all the data we gave him which we didn't have.
All right. Let's address the first issue first. Mr. Harmon, what is your comment on the offer of proof as to the questioning of Mr. Yamauchi?
Well, questioning is questioning. If--I have no objection--if that is all he is going to ask and we don't--and if he doesn't like the answer, you know, get in a huff and go on with other things or pursue it, that is fine, your Honor. And that is--when I heard that yesterday, I thought if we can get a commitment we can save a lot of time on this, but it has got to be a clear commitment, otherwise we have to talk about subject two as well and I'm anxious to do that as well. So can we move on to that and maybe Mr. Scheck can craft his questions and--
That is no problem, but subject two relates to that, your Honor. Can I talk about that?
I just want to indicate to the Court that the board discussion is going to take some time on one of the boards.
Do we have those available, by the way, the boards you are going to use with Mr. Yamauchi?
You know, I'm not one to be shocked when I hear what I knew was going on is really going on, but if I heard correctly, they have had discussions with you--I mean, it is clear by the sequence of the reciprocal discovery requests, and I alluded to this the other day with the cut-up notes that we got from Baden and Wolf and Lee, that there is a lot of doctoring going on. And it is clear that this whole manipulation, it is contrived, perverted attempt to withhold what the voters of this state afforded us, and that is the right to a fair trial.
Don't interrupt me, Mr. Harmon. The problem we have is that the people who crafted this did so inartfully and they left a lot of loopholes and I'm stuck with it, as are you.
Well, and they rely on judges to realize what it meant, your Honor, and what it didn't mean was that they would spend time on charts and say don't write a final report because, once do you that, we've got to turn it over, so let's just take time at 150 bucks an hour making up charts and things and so when you walk into court make sure your report is only dated the day before you walk into court so we can justify withholding it. But I heard Mr. Scheck say that you have reviewed some notes.
Well, I haven't been told about any notes, none of us have, and somehow Dr. Gerdes said, "See analysis discussion for detailed explanation." It doesn't say "The one I haven't written yet." It doesn't say "The informal one." It doesn't say "The casual one." It says, "See it" and we haven't seen it. This is all we saw. It was dated May 22nd and this is the tip of the iceberg. This is going to happen over and over again because we don't have anything from the Defense except cut-up notes. That is all we have. And so I think we need to call a time out to the proceedings, your Honor, respectfully, and review all of this material, because we were entitled to have this before the trial began. We were entitled to consider it--
Mr. Harmon, Mr. Harmon, before we get off onto that discussion, if you recollect, I have issued an order regarding all of these expert's reports, ordering them to be disclosed as soon as they are available. I also gave counsel warning that I would be very wary of the subterfuge of telling an expert witness, out of their normal practice, not to write reports and I in fact cited the one case where I was able to find where counsel were sanctioned for that very procedure, so I am aware of that issue. If it come to pass that there are reports or that conclusions were reached and there was a deliberate manipulation of the process and an instruction to the witness not to prepare a report to avoid discovery, then those witnesses will not testify and that is going to be the sanction. That was an order that I made early this year.
Well, I think you are in a good position to say "Tell Gerdes have a nice life," but they have sandbagged us with it.
I would be happy to see a Judge resort to that because it is totally within your judgment to do that, and I think what happened today may haunt them, and we will remind you at every turn--
--that clearly what they told you is they would rather spend time on their charts than writing a final report. He hasn't gotten any other data since January. I know he's a busy man, but he is not too busy to be making charts for them, but he is too busy to write his final report. Don't get me wrong. We would love to have these guys come in. We don't want faceless people's name being injected in here, but to deny us this kind of material so that we can absorb it into our presentation really frustrates the whole purpose behind it, your Honor. So I think we have seen the tip of the iceberg and I'm anxious to see the bottom of it because it is much bigger than any of us appreciate.
Your Honor, I have every confidence that you will have no problem with this. I'm really restraining myself, because these long diatribes and these tags on what witnesses are going to say or do and the quality of them, it is just irrelevant.
I'm a little skeptical for this reason: I expressed this skepticism two months ago, that it is hard for me to believe that expert witnesses of the caliber that I have seen on the Defense witness list haven't prepared reports. It is hard to believe that counsel can proceed to make opening statements and make certain representations as to what is coming in the Defense case without having reports to base those statements on. I'm just telling you I'm a little skeptical.
I understand. I understand what the Court--but we've had meetings with the Court about it, we will explain it, and I think that you will be satisfied. I don't think you will have any problems with it at all, especially with respect to this, and in terms of Dr. Gerdes' data and the charts and what his testimony is going to be in his reports--
Yes, and we indicated exactly what that was, an analysis of validation studies. There was additional data that he saw in January after that was prepared which he has to integrate and which he hasn't done that. And obviously, given the Court's concern we will have him produce his integration posthaste, but I think it would be very clear, the essence, the notion of a report, we are talking about looking at dots on a strip and what you see is that there is a principal difference here between those people that believe that certain kind of manifestations on these strips represent contamination and those that say we can ignore it, and that is a considerable--that is the principal concern. I think the Court is going to see that coming out. It is no dig secret to anybody and it is no big secret to Mr. Yamauchi, because Dr. Gerdes went and said look at this, look at this, look at this. This is what I think. It is not a secret to Mr. Harmon.
there is a clear pattern to this--that somehow the Defense has been allowed to hold back material because they have convinced you in some way that it would effectively undermine their cross-examination of our witnesses.
It is hard for me to believe that expert witnesses of the caliber that I have seen on the Defense witness list haven't prepared reports. It is hard to believe that counsel can proceed to make opening statements and make certain representations as to what is coming in the Defense case without having reports to base those statements on.
If it come to pass that there are reports or that conclusions were reached and there was a deliberate manipulation of the process and an instruction to the witness not to prepare a report to avoid discovery, then those witnesses will not testify and that is going to be the sanction.
let's just take time at 150 bucks an hour making up charts and things and so when you walk into court make sure your report is only dated the day before you walk into court so we can justify withholding it.