The board that I think we should address first, your Honor, is one that concerns Dr. Lee's examination of the socks and I have some serious problems with this board for a few reasons: The principal reason is that what it depicts isn't true, umm, and first I will state the factual background and then I will state the legal objection.
As the Court recalls, the biggest problem that we've had in this case, and one of the most remarkable and unusual aspects of it, is that we are in the middle of trial before the Defense is even allowed to examine evidence, and there was a point where the Prosecution said that they wanted to send the socks out for EDTA testing to the FBI and we had been trying--they did not refuse to send the socks to Albany. And then as the Court I'm sure distinctly recalls, they said--the interjected, well, can we--they refused to send it to Albany because they were going to send it to the FBI, I believe, for testing on EDTA. And I said in our chambers conference, well, if we can fly Dr. Lee--if we can--can we see it in the morning before the courier takes it out to Washington? And you looked at the Prosecution and said, well, if they can do that, they can do that, and we managed to find Dr. Lee in Seattle at the American Academy of Forensic Sciences conferences and we called him at 1:00 in the morning and we flew him down at 6:00 in the morning and then indicated--went over to the LAPD in order to examine the socks and go over a list of items to be sent to Albany with Mr. Hodgman. And what occurred here is that--and Mr. Hodgman, I'm sure, will verify this. We were told that the courier was going to be flying out at a certain time and there was no--
Well, what is inaccurate, in particular, and I am a witness to this, as is Mr. Blasier and Dr. Lee, and we are the only Defense representatives in the room, you see where it says, "Examines other sock, same gloves," that is not true. He changed his gloves between those. I was watching, Mr. Blasier was watching. Dr. Lee says he did that. That is not true. And just permit me a moment, but you have to--and then there is this business about no lab coat, et cetera. The reason I have to give you the factual background, and Mr. Hodgman will back me up, is we are sitting in the front lobby of the LAPD SID lab waiting to get our chance to see the sock, told that there is this deadline certain when the sock has to be whisked away from Dr. Lee and he can't examine it any more because the courier is going to take it to Quantico, Virginia. And we are waiting and waiting and waiting and waiting and there are big delays where Mr. Harmon is inside there, you know, waiting to make arrangements for to us look at the sock and we have brought our own microscope there. And then finally at a time when it would only, according to their time period, permit us something on the order of half hour to 40 minutes to look at the sock, we are allowed into the room. Mr. Hodgman will be my witness as to that, because we are asking, what's the delay, what's the delay, what's the delay, and he is saying, I don't know, I don't know, I don't know, let's talk about some other matters in the hallway. The reason that that bothers me is that if we had even bothered to ask for a lab coat it was our fear that these guys would take another twenty minutes to get the lab coat and you got 15 minutes to look at the sock. But putting a side the lab coat issue, the real question is he changed his gloves. It upsets me a great deal to even have that in there. That is going to be ultimately, when Dr. Lee testifies, an issue of credibility. Let me cut right to the legal issue. The legal issue, it seems to me, is the following: This board through this witness is not arguably--and this testimony that he didn't change his gloves, they claim, between the examination of both socks, is only relevant on the issue of whether or not there was any cross-contamination of the sock at this point in time or any contamination of the sock. I don't think that they contend that anything that Dr. Lee did to that sock contaminated or created any trace evidence problem or any chain of custody problem.
The Defense attack with respect to when blood got on the sock is all subsequent to this examination anyhow. So in terms of whatever probative value this testimony and this board has through this witness at this time, it is minimal, if any, because that is not the purpose for which this is being offered. The purpose for which this is being offered at this time is in anticipation that Dr. Lee will testify and Dr. Lee will testify about proper procedures for handling, examining items in a laboratory. And that--umm, that is their intention, to impeach him with his testimony when he comes in in advance of his testifying. Now, it seems to me that if they want to raise this factual issue, that is the time to raise it. It is not probative through this witness at this time to anticipate what another witness is going to testify to. And they are not offering it for anything with respect to the chain of custody or contamination with respect to the sock.
So are you raising the spectre that we are going to see both you and Mr. Blasier testify as Defense witnesses?
Oh, what else can we do? They restrict our access to this. It is myself, Dr. Lee and Mr. Blasier who are sitting there looking at it, and believe me, I was watching this because I know what the issues are in this case and I know what proper procedures are and I was watching this like a hawk. So the only witness that can even begin to--I'm in the position where I'm going to have to have to start asking Mr. Yamauchi if he is testifying to this at this time, which has minimum probative value in terms of what the purpose of offering it at this time is, that the only Defense witnesses in the room are lawyers who are going to say this ain't true, so that is a problem. That is a 352 problem, it seems to me, and if this issue is to be visited, it seems to me that the appropriate place to visit it, is that they can ask Mr.--Dr. Lee on cross-examination when he testifies whether he changed gloves. They can call a rebuttal witness to dispute that and we could take it there and that is the appropriate time and place. To get into this now is an undue consumption of time, it is going to be confusing, it is at the wrong point in time in terms of its probative value, and it is going to require, you know, lawyers to be witnesses and to have the lawyer who was sitting right next to Dr. Lee doing this, cross-examine him about it, which is not what we would like to do. So it seems to me that this board and this area of testimony from this witness should be avoided at this time.
Mr. Scheck has a short memory. There were other non-lawyers there. I mean, Dr. Lee is not a lawyer, so he can testify about what he has got to say, but there were--I don't even remember all the people that were there. I have never seen so many people staring at two socks for as long a period of time as we did. It was an interesting session. There is a simple issue that this addresses, and Mr. Scheck skirted around it. One of the implications of all this heightened sense of awareness is they didn't have to do it then. They chose to do it then, and we allowed them to do it. You suggested it and we allowed them to do it. So--but if you take Mr. Scheck's comments at face value, it is--his comments suggest it is going to be sloppy if you don't have a lot of time, and that is clearly the attack they are going to make on Mr. Yamauchi, that he was sloppy because he was in a rush to either incriminate or exonerate, so there is a little having it both ways in those comments. There is a very basic legal issue involved in this. Mr. Scheck mentioned it. This event is part of the chain of custody of those socks. Those socks went to the FBI lab that day. And we don't want anybody undermining the clear unequivocal tests to show that there is no EDTA on those socks, and if there is any quibbling about it, Dr. Lee was there, he handled them, we want to be able to document what he did in case they want to try to put the spin that they have been spinning on our clear unequivocal testing on the socks for EDTA. That we are entitled to demonstrate this, just like we did with 47, 50 and 78. They took things, they are part of the chain of custody of those things, and they are clearly not irrelevant at this point in time. That is the primary reason that they will be presented. So to address Mr. Scheck's concern, Dr. Lee is a non-lawyer. There was a photographer there.
John Taggert. I mean, we had our photographer there because, you know, quite frankly, we get kind of tired of people saying that LAPD doesn't do things well when here is Henry Lee doing things just the way they do. Be careful, you know, you change gloves when you have to, and so here was a chance to show that the much anticipated Defense expert, he does things just the way they do. You be careful. Sometimes you touch things, sometimes you don't. And so that is why we took them, never dreaming that we would be having this intense discussion at this point. You know, Dr. Lee manipulated the heck out of those socks. It is all standard practice and now it is documented. But the real problem that they have is it is an event in the chain of custody of those socks and you will see, when the FBI testimony from the EDTA comes in, how important it is for this jury to appreciate all the hands that those sock went through, just in case they try to put the spin on those unequivocal results that they have been struggling with for so long. So that is the simple proposition that we want to offer this for.
All right. Let me ask you about the conclusion that it makes saying, paren, "Same gloves, same gloves, same gloves" as to photographs 3, 5 and 6, starting from the top. Mr. Harmon, Mr. Scheck takes issue with that, as a matter of fact.
Okay. Well, you know, I am in those photos and I wish I could tell you I was paying attention to that. I wasn't. But Mr. Yamauchi and others who were on the photography side of the table, this is their observation, so it is another question of fact for the jury to decide, your Honor.
But that is--I did not notice that, because those socks were kind of boring to watch, and I wasn't paying attention to details, I was a little too close, but that is the representation from the criminalists on the other side of the table.
Who were watching for that reason, so I can verify that again, because we certainly don't want to have that there if it is not true. But this board was prepared based on their observations, so I--I don't have a reason to doubt it, but if you would like me to confirm it, I would be happy to, your Honor.
No, but Mr.--Mr. Scheck indicates that it is his distinct recollection that that--that that did not occur, so to allow you--his argument is going to be that to allow you to have the, paren, "Same gloves" is actually argument and not just a statement of a description of what is there.
Well, you know, I mean--I have objected to all these argumentative things. No genotype consistent with O.J. Simpson. That is a conclusion that they want to have a lasting image of.
But that is an undisputed conclusion as to that glove, as to that area on the glove.
I mean, we have to agree on facts. I mean, I guess we have done this over and over again. You have made us put mixture--are you going to make us put "Mixture" parenthesis up on our results when that is in the our scientific opinion? So I don't blame them, but you know, do they want to testify first and have you resolve it? I don't think there is any legal basis for that, your Honor.
That is what the fact finder is entitled to decide, and if we made a mistake on that, they are entitled to think that we deceived them.
Don't interrupt me. If you want to use that, you can cover up the paren "Same gloves."
Your Honor, may I be heard in response? Just please be--I know that you have made one ruling. If you will just hear me on why this shouldn't be used at all. Just hear me.
No, no, I mean hear me in response to what he just said, because there is something that I would like to emphasize that I think is relevant, if the Court would just hear me on that.
Now, the point here is going to be that I am going to have to go into with this witness and we are going to have to start calling witness, maybe even the Court is going to have to start issuing statements with respect to what was permitted or not permitted. I mean, I love the way that Mr. Harmon says we allowed them to do it. You ordered it. You ordered it under circumstances that were extreme in the utmost. We are going to have to call Mr. Hodgman to the stand to talk about the delays in that front room while we were waiting to get in to examine this. I mean, that is what we are going to have--that is what we are going to have to get into if this is gone into, all those facts and circumstances, and it seems to me that those are of--of--there is a 352 problem if you want to go into all of that.
My other suggestion to the Court--my other suggestion to the Court--it is not that I am afraid of them testifying to what happened here at this particular point in time. My real suggestion to the Court is whether the issue as to whether or not the handling of these socks at this particular point in time has anything to do with EDTA issues. You know, that can be resolved when you hear that testimony. And I don't think it does. I think that the whole point of this board at this point in time is that other issue I'm talking about, is to try to do a preemptive impeachment of a witness that hasn't testified yet and that is where the 352 consideration comes in in terms of my having to get into this witness--through this witness all the facts and circumstances surrounding how that examination occurred and why no lab coat was accessible and why that had to be rushed, et cetera, and I'm going to have to ask all these questions of the witness in order to clear that up, some of which he may have knowledge of, some of which he may not, all of which are in good faith and all of which reflect our discussions, all of which I should be entitled to go into with this witness. Now, my suggestion--my suggestion is, that in terms of this area, in terms of the 352 problems, the consumption of time, what the Court would have to instruct the jury with respect to the circumstances of examination, is that if this is really going to be relevant to EDTA, then they can put them on--they can call a witness at another point in the case to testify to this aspect of the chain of custody or the details of this examination. That is my suggestion.
All right. But I think in any lawsuit, I think the plaintiff is entitled to present their case in the manner and order in which they determine. I'm not going to tell them when to call their witnesses--
--other than my other rulings for discovery violations. All right. Noted. Thank you.
what it depicts isn't true
I was watching this like a hawk. So the only witness that can even begin to--I'm in the position where I'm going to have to have to start asking Mr. Yamauchi if he is testifying to this at this time...the only Defense witnesses in the room are lawyers who are going to say this ain't true, so that is a problem.
I have never seen so many people staring at two socks for as long a period of time as we did. It was an interesting session.
Dr. Lee manipulated the heck out of those socks. It is all standard practice and now it is documented.
You ordered it. You ordered it under circumstances that were extreme in the utmost.