All right. Good morning, counsel. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck. The People are represented by Miss Clark, Mr. Darden and Mr. Harmon, also Miss Lewis. The jury is not present. Counsel, one issue I want to take up before we resume with the jury, and that is this--the objection concerning the absence of a C dot on some of the LAPD PCR results. I have received the letter brief filed by the Prosecution. I didn't receive anything from the Defense this morning. Mr. Harmon, I will hear from you first. Good morning, counsel.
Thank you, your Honor. Perhaps we should start with Miss Cotton's testimony. The distinction that is made, and I am not a scientist, but this is consistent with Dr. Cotton's testimony, consistent with the user guide, is the control dot is important because things that are more intense than the control dot on the DQ-Alpha strips mean that that is a type or types that are present. If the C dot is absent, it doesn't mean that dots which are there are not present; it just means that one cannot say that there are not other mixtures there, and that is the distinction between a reportable result and reporting what you see. When those dots light up--the Defense really can't have it both ways. They made a big deal about dots lighting up, suggesting that things are there. Now we have dots lighting up and they don't want the jury to hear that dots lit up because there is no C dot there. So I'm suggesting that there is a factual inconsistency with the position that the Defense has taken. We pointed out that there are already two such results--
That was the initial problem, but you--in rereading it, it would appear that you considered the substance of the objection as well. I mean, we've had to patch boards at the last minute, your Honor, so--but the user guide makes the distinction between typeable results. Umm, I mean the key is that there are--I can tell you what the--there are--
The relevance are--the relevance of these results, and I can--I mean, there are some differences in what the results are. The relevance are when those dots light up, that means there is some biological material that caused them to light up.
We can because that is where you--in the hybridization process that is what you would have.
Doesn't the lack of a C dot indicate that there is insufficient amplified product for a reliable result?
KEY QUOTEThat is the key, and this is what I was just telling you, your Honor. It means that that biological material--there is biological material that produced those types that caused those dots to light up. It also means there could be other biological material present there that could help you interpret what is there, but what is there is there. And I think to be concrete, I think you need to appreciate what these results are where the stains are from.
One of the Bundy stains. And you know what the results are that other labs have produced from those. They are a 1.1, 1.2. They are consistent with Mr. Simpson. Well, Mr. Yamauchi, his results were 1.1, 1.2 and no C dot and those results mean that there is some biological material that Mr. Yamauchi typed that produced the 1.1, 1.2. It doesn't mean there is not something else there. It just means that at least there was enough biological material to light up those two dots, and in the context of that--of this case that is a very significant observation. There is no question that it could mean a number of other things. That has never been a limitation on presenting any form of physical evidence analysis, except maybe I should back off that. We have had some limitations put on our positive phenolphthalein testing but for different reasons. That is the significance of--that is a result that has been consistently produced throughout this, the testing in this case. I think it gets a little more interesting when we switch over to item 42, which we know was a sample that was taken from the pool of blood that Nicole Brown was found in, and presumably that is her. Mr. Yamauchi's results were a 1.1, 1.1 with a C dot very faint. Now, what that suggests is, is that--and it suggests a lot of things and a lot of things that are much more critical at this point in the case with all this cross-contamination and everything else that the Defense has floated for weeks. What that suggests, is no. 1, he typed it right and what that suggests is in the sequence of events that these things were handled in, this systematic cross-contamination that the Defense has--has been continually suggesting, that suggests is that this stain that was processed right after the--in the sequence right after the Bundy stains, and before the Defendant's reference sample, was not cross-contaminated, and we know all the substrate controls were not cross-contaminated. So the fact that there was no 1.2 suggests that there was--that is a very important control that was never meant to be a control against this phenomena, so we have two different results with weak or no C dots that mean very important things, but they don't mean that these are the only types.
So you are saying it is relevant because it is consistent with the other results, it is indicia of the lack of contamination and it is not misleading because it can be explained to the jury so that they can give to it the weight to which it is entitled?
That was my argument and that was always my intention of not saying it any more strongly than that, and if I do, Mr. Scheck will cross-examine on that point. That is what it means, that is all it means, and it means something very powerful in the context of this case at this point.
Shouldn't I be very concerned about the user's guide that says don't use this if there is no C dot?
Excuse me, Mr. Harmon. Why don't you do this. Why don't you give me that page out of the user's guide. I think we should have a photocopy of that in the record so the record is clear as to what I considered in making this ruling.
I mean, I think you have to read it very clearly when it says: "An accurate determination of the type cannot be made since there is a possibility that other probe signals are also below the threshold of detection." This is the way this will be presented, that this is what I saw, but here are the other possibilities, and you know, in the context of this cross-contamination, umm, there is no question that caution that has to be made when that is presented
Mr. Harmon's argument is scientific nonsense. And it is going to confuse the jury and it fails to abide by even the most fundamental foundational requirements of reliability. The user's guide, your Honor, is a kit that is put out by the company that manufactures this product and stands to make a profit off it and should not necessarily be regarded as anything more than a minimum. But it is evident, from even the user's guide, that when the intensity--when there is no C dot that means that an accurate determination of type cannot be made, since there could very well be other signals present. And I mean this is the fundamental control of the strip. Mr. Sims' testimony at 28709. "Question: Just to digress for a second, if you saw Mr. Simpson's type a stain and you were unable to see a C dot there, how would you report that?
He answered: "In our laboratory we would not consider that a typeable result. We would note the types but we would not consider it to be a reportable result." I mean, when he says "We would note it," I mean, in other words, he is not going to throw away the data and say that that never happened, but they wouldn't report it in Court and they don't record it as a typeable result, and I don't think that there is anything more fundamental to this system. And if this isn't a foundational objection to the reliability of the evidence that ought to be sustained, then I suppose we can give the jury anything as far as this system is concerned, and to try to start raising inferences about whether there is or isn't contamination or there is or isn't reports--typeable results there that are consistent with something else, when the fundamental control on the strip fails and you can't make an accurate determination of type, that is not the kind of stuff that should be put before this jury, which lord knows is going to have enough trouble sorting through what they have in a proceeding where we didn't have an admissibility hearing. I mean, I think a lot of this is not adequately validated to go before a jury, but you know, you said, we couldn't litigate it.
KEY QUOTENo, no, you ruled. You ruled. I mean, you know, we have to live with this, and I think it is tough enough for these people, but this--this is ridiculous.
Sure. Rather than guess about what Gary thinks, he is sitting right here. I asked him if I adequately articulated it and he said I did. If you would like to hear from him what he thinks about it, you know, I don't pretend to speak for the entire scientific community. I do the best I can, but Gary is sitting right here, and rather than make a mistake about what he feels on this, why don't we hear from him.
No, I'm not inclined to hold a hearing at this point, counsel. All right. The foundational objection as to the results with lack of C dot will be sustained. Neither party may inquire of that. All right. Let's have the jurors.
Yes, you can. You can ask him if he was typed and you can ask him specifically that there was a C dot failure and it is not a typeable result. All right. Let's proceed. Miss Clark?
Ours is coming momentarily, your Honor, so I think you said last night, but we wouldn't be ready to argue until nine o'clock so they will be in momentarily, your Honor.
All right. I also got an anonymous phone message on my voice mail this morning suggesting that I suggest to you that you look up the Greek derivation of one of the adjectives you used yesterday.
KEY QUOTEI did that last night. I looked in my dictionary last night, your Honor, and it was the term as I understand it, applies to both male and female, and so that was my understanding, but we will discuss that.
It doesn't matter, your Honor. It is a personal attack that I thought all counsel was going to refrain from.
Your Honor, just one other question. We are going to finish with Mr. Yamauchi first?
And Mr. Sims is here. Is he assured that we will go through and he will be done tomorrow at noon, otherwise if--I don't know what Mr.--
I don't know how much further we are going to get, but--particularly if we are going to argue that other issue. I'm beginning to get resigned.
Let's assume that you get a positive ruling. That won't be presented with these witnesses.
Oh, no. I have some questions in regard to that in terms of this witness, his knowledge and things that are in those reports, absolutely.
Your Honor, Mr. Scheck is seriously misinformed as to what this witness knows and could be inquired about.
I mean, that has clearly been brought before the jury with the last several questions and answers.
Mr. Harmon's argument is scientific nonsense. And it is going to confuse the jury and it fails to abide by even the most fundamental foundational requirements of reliability.
In our laboratory we would not consider that a typeable result. We would note the types but we would not consider it to be a reportable result.
Doesn't the lack of a C dot indicate that there is insufficient amplified product for a reliable result?
The foundational objection as to the results with lack of C dot will be sustained. Neither party may inquire of that.
I also got an anonymous phone message on my voice mail this morning suggesting that I suggest to you that you look up the Greek derivation of one of the adjectives you used yesterday.