All right. Let's go on to the Defendant's request for a hearing on prosecutorial misconduct.

Your Honor, may I make a suggestion? It's my proposal--

All right. Mr. Scheck.

It's my proposal that this proceeding be conducted in camera. And the reason that I propose that is that all we've ever asked for here is a factual basis, hearing on the factual basis for Mr. Harmon's statements about privileged communications with our experts, statement--assertions that he made. That's all we've ever asked. He made a response. To the extent that he may discuss privileged matters or we may have to discuss privileged matters in response or any of that is gone into, it seems to me that we should do that in camera. It shouldn't be broadcast, shouldn't be brought to anybody else's attention. Also, what concerns me is that we submitted to the Court two declarations from the principles that Mr. Harmon's--one with whom Mr. Harmon spoke, and the other is an individual who we believe is referenced in his response as the individual from the FBI which creates factual conflicts. So it's my respectful suggestion to the Court that if we do this in camera in chambers, a, it won't air all this possible privileged materials which will be delicate, and, B, maybe it will--

Isn't the issue not what was discussed, but the manner of the contact and the confidential nature of the relationship of the Defendant and certain of these experts?

Yes. I think I can do my side of it without bringing these things up obviously and even just argue the legal point. I'm a bit concerned about what's going to be said on the other side. And the whole point of this was that assertions were made about secret testing, results of secret testing to the Court. That's all we ever asked for an inquiry into, the factual basis for that. That's the problem.

Well, Mr. Scheck, I'll hear your legal argument.

Well, my legal argument is a very simple one, your Honor, and I would essentially rest on the papers and the declarations. What we have here is a situation where the Defense, Mr. Harmon, made representations in Court as is indicated in our papers. And the Court is well aware from the record about who tested what on what occasions, what the results were, what the Court should be knowledgeable of in terms of the results in that he suggested we were misleading the Court in other applications based on what results might have been or were, and he made specific assertions as to who did what when. It's--his response doesn't make the matter any easier. It's our position that when samples are given to the Defense for whatever purposes and possibly testing, that it is to be privileged, in secret, that the Prosecution should not endeavor to find out what the results of those tests are. Mr. Harmon's own response indicates that he personally conducted conversations with Dr. Rieders of national medical services and asked him questions about EDTA testing and about--made statements to him to the effect that he knew that this lab hadn't performed those tests, and then in his papers, he says that Dr. Rieders made responses to him in, quote, unsolicited comments, unquote. Dr. Rieders contests that in a sworn declaration. Similarly, Mr. Harmon in his response indicates that there was a conversation between a Special Agent Roger Martz in February 1995 in Seattle with respect to EDTA testing with a representative of the national medical services, who we gather from our research can only be Mr. Carl Selavka, and that he indicated that in the--

Want to spell that for the reporter?

S-E-L-A-V-K-A. --and that Mr. Selavka made statements about what was tested and that about the Defense making requests to do and what they decided to do or not to do and agent Martz--Mr. Selavka submitted a sworn affidavit where he denies that as well. Now, I mean, I think that there's some factual conflicts here that frankly I don't think we can resolve. My position with respect to the legal issue--and I really don't want to get into these factual con--I don't think we can have a hearing now. There's no declaration I understand from agent Martz for example and I think it's kind of tricky for Mr. Harmon to start making statements about what was said or not said in this kind of proceeding. But it seems to me that the legal principal is a simple one. When we're given samples to do testing and to evaluate with our experts, Mr. Harmon should not make efforts either through agents or personally to endeavor to find out exactly what we're doing. This sort of reminds me of a hearing one might have pursuant to United States versus Henry or the other series of cases I'm sure the Court's familiar with when sixth amendment rights are being impaired by the Prosecution sending in an agent to eavesdrop on conversations or an informant, for example, into a jail cell to talk to a Defendant, to conduct discussions about what the Defense is or what's going on. And in those kinds of situations, you know, the issues are, was there interrogation and where there questions about privileged issues. I find it troubling that in Mr. Harmon's response, what he's telling us is that he got information from our experts in, quote, unquote, unsolicited comments. Now, it seems to me that the--what ought to happen is a factual hearing with respect to what was said and what the interrogation was. I think that Mr. Harmon's remarks frankly should be limited to the legal issue of whether or not he has a right to conduct this kind of inquiry. I guess what disturbs us is that we don't think that he has a right to make efforts to determine from experts that he thinks we've retained and in fact have retained to consult with us to know what those tests are and what we're doing. Our experts were unusually solicitous in responding to inquiries from the Los Angeles Police Department about the literature with respect to EDTA testing because Dr. Rieders is probably the foremost authority in these kinds of matters and is often consulted by the FBI and others. So when Mr. Henkhaus from LAPD in January made an inquiry as he indicated in telephone conversation, asked for literature on the question, our experts sent him the literature, but wouldn't discuss his involvement with the Defense or what he's telling us or what he's doing as is what a person of his experience would do. And then when Mr. Harmon called him, he took the call, but refused to discuss anything about what he was saying to the Defense or what they were doing. And Mr. Harmon, I think by his own response, was asking all these questions and making all these statements about what he knew had happened at other laboratories. I think that it's wrong for Prosecutors to be doing this. That is wrong. They shouldn't be making these kinds of inquiries and conducting this kind of investigation into what they know are privileged Defense activities. That's the issue.

Assuming it's wrong, what sanction are you seeking?

Well, frankly, the problem is, I don't know without a hearing the extent to which they have invaded the Defense camp. A lot of specifics were stated by Mr. Harmon as to what he knew in these proceedings. Given the conflict in the testimony here, that we have declarations from Defense experts saying that they didn't say the things that Mr. Harmon indicates they said--and I still don't know what the basis of his knowledge is. I know it can't be the little initialings on the envelopes. Otherwise, he didn't have a good faith basis to say what he said. So I think that further factual proceedings will be necessary to determine exactly to what degree we had an invasion of the Defense camp. I'm by no means satisfied we know those facts. I suggested to Mr. Harmon since I got these declarations late that we put this over because I think that other than the legal issue as to whether or not he has the right to ask these questions, we need to have a factual hearing on the extent to which there's an invasion. As to the precise remedy, again, I'm a little at a loss because we've yet to approach the time that the Prosecution begins to put on witnesses with respect to EDTA testing, which I assure the Court will be one of the most interesting pieces of testimony that we're going to see in this entire case.

All right. Mr. Harmon.

Well, I would like to see at least the declaration that you're suggesting which was due this afternoon.

I wish I knew--I was the most disappointed person when I went up at 4 o'clock and it wasn't there. But let's just evaluate these two declarations factually and then legally and see what they say. Now, they've alleged some kind of invasion of the Defense camp as if it's some kind of boy scout escapade. Carl Selavka says he didn't tell roger Martz. What roger told me, he said, that they had the evidence and they didn't do the testing. And then Dr. Fred said, "he didn't tell me that they didn't do the testing," but he does admit that I told him that roger told me that they didn't do the testing. Now, what the heck could I have told him, what would my basis have been for roger telling me that if Carl hadn't told roger that? These facts--they simply don't make sense. But even though they don't make sense, let's look at them at face value. They both deny that I knew anything. They deny that I know what I clearly know and what I put in my motion for this. But I think the real proof, the real truth, the real question is, is it really just a coincidence. If you want to know whether Carl really told roger that, I think if you look at 47, 50 and you say, "gee, those look just like Carl's initials on those bindles there"--you know, we're all handwriting experts. We can look at these initials. And if you look at them, those are Carl's initials on there.

All right. You're referring to People's exhibit, Mr. Goldberg?

This is People's 210.

People's 210, which has the transmittal and packaging envelopes with regards to items 47, 50 and 78.

The real sequence of events are, they thought they got those samples in the middle of the night and they were going to keep the fact from the world and especially this jury. You know, we had those discussions in chambers the other morning that weren't reported. They don't even want the jury to know that they've looked at anything. They didn't like hank's board about the Albany viewing.

Well, let's not get off into that.

But I think that's at the heart of the matter. They want to strut around here and cross-examine people for weeks at a time and not have them know that they've looked at the evidence themselves. I don't blame them for that, but the law simply doesn't afford that and you still have to rule on what's the appropriate scope of comment that we can make. Now that the jury's heard. It's out of the bag. They've had that evidence. So the fact of the matter is when all the big fuzz about the Albany trip came up and EDTA was the talk of the town, roger Martz and Carl were having a beer or having fun up in Seattle--remember we talked about people having fun in Seattle at the time. Carl mentioned that to roger at a time when we knew nothing about national medical services. I was unaware that the LAPD lab--or no, I shouldn't say that. I was aware that they had contacted him in January, and I was really surprised because of that collegial type contact. So the items come back. We see that that's confirmed, that there are initials and dates all over them. I call up Dr. Rieders to discuss the invitation that he extended to Leonard Hanukahs, the collegial invitation and the rest is history. So if you need testimony, I'll be happy to submit the declaration. I wish I had it today. I'm sorry. I thought we would have it. But, you know, once again, it's much to do about nothing. But if you want to take the time from the jury--we made a lot of progress. I would hate to see us lose the momentum that we have. I'd be more than happy to testify if that's what you think the right thing is at this point, your Honor.

All right. I would like to see the declaration from Mr. Martz.

Sure.

All right. Brief response, Mr. Scheck.

I think Mr. Harmon's argument admits too much and he did not address the most important point. Let us assume that everything that Mr. Selavka says is true; that there's a conversation between agent Martz and Mr. Selavka in Seattle and they discuss EDTA, and Mr. Selavka, as he indicates in his affidavit, declaration, seems to know a lot about it and even surprises agent Martz. He's been thinking about it, but does not reveal anything about what he did in terms of testing or didn't do. Then when the bindles come back and Mr. Harmon takes a look at the initials and then has conversations, he begins to think, well, maybe I can figure out what they did and who tested what. So maybe I'll have a conversation with Dr. Rieders, and I'll probe him and I'll say, "well, you know, I know based on the conversations that agent Martz had with one of your people in Seattle what you did and what you didn't do," and tries to elicit the information in that fashion and then actually makes an inquiry with respect to the technology that's available at that laboratory and tries to make some educated guests, then comes into Court and in a ploy, tries to assert his fact what he is trying to piece together from the various bits of evidence. That is a possible view looking at all the facts in this case. My point, which he does not answer and I ask the Court to consider, is that Prosecutors are not supposed to be doing that. You're not supposed to be calling up people and trying to conduct inquiries of them to determine what they've done and what they haven't done with respect to secret testing and throwing out hypothesis. So all the things that he points to as evidence to verify his view of the facts seem to me to do nothing more than call more attention to what could be, very well be an act of misconduct. There's no justification for calling up Dr. Rieders, conducting an interrogation trying to determine what he did or didn't do. Dr. Rieders said he did not make any unsolicited comments or say anything about what that lab did or didn't do.

All right. Mr. Harmon, you'll make sure I have that tomorrow?

I'll call tonight. Yes, your Honor.

All right. All right. Counsel, given the hour, I'm going to put over the discussion on the parity of sanctions motion until tomorrow morning--excuse me--tomorrow at 4:30: All right. 4:30. All right. We'll stand in recess.