Back on the record in the Simpson matter. All parties are again present. Mr. Harmon, did we have success in taking photographs of the sock 13-B in both positions?
Yes and no, your Honor. On the first position, they were beautiful photographs. I can--we have about five of them. We've selected one. And the other one, Mr. Sims--I had alluded to this before we started. We actually have Mr. Sims' photograph from November, which shows the area that's not there anymore because he consumed it in testing. So I didn't take it down because I wanted your permission to do that. We just intend to show the jury this photograph that Mr. Sims took that shows a whole bunch of reddish stuff.
Well, I thought the whole purpose of this was to memorialize what it is that was shown to the jurors.
Your Honor, I just saw this today and I was just permitted very quickly to look at a series of photographs that Mr. Sims had shown. Now, we had given all of Dr. Blake's photographs of these things, of these sock areas to the Prosecution, and I'm just shown this late today right now? I object to this. I don't think this is right. I also think it's potentially very misleading.
KEY QUOTEWell, because there are all kinds of different perspectives you can get on--whether you look at it under a microscope, whether you look at it at a distance, and all these go to the issue of whether--what you can see with the naked eye. So I think it becomes misleading, and I would need an opportunity to look at all the different photographs, compare them with Dr. Blake and make assessments. And, you know, there was no excuse for them not turning over these photographs to us a long time ago as we requested and being asked to rely on Dr. Blake's, and we gave them all of Dr. Blake's. Now they're showing this at this time? I would request that they just be restricted to doing what they proposed to do initially. And frankly, I'm distressed that's it's 10 after 3:00, and I don't know how we're going to get through the recross-examination, which I had planned to be reasonable and brief at this point. I'm upset about the whole consumption of time and the way this has been done.
Well, your Honor, I'm not upset. So, you know, without commenting, I have to comment because that's--what he said is partially true. Dr. Blake saw this. He's permitted to look at things, to take pictures, to do whatever he has to do. He has seen--I don't know if he's seen these photographs. He saw the image in there before Mr. Sims cut it out. So while this may be painful once again to see the truth come out at this late date, I don't see that there's any discovery violation.
Well, you've seen Dr. Blake's photographs of similar--of the same location; is that correct?
Well, they handed me a whole stack of photographs. To be honest with you, your Honor, I didn't look at them. So I'm not sure how that relates to a legal issue.
No. The legal issue is whether or not both sides had--both sides had access to this piece of evidence and were allowed to conduct photographic examinations of the sock, correct?
Oh, yes. To my knowledge--I didn't look. He handed me a box and I gave them to Mr. Sims because I'm confident that Mr. Sims can relate to this jury what has to be related. So I--
Well, let me ask Mr. Sims. Mr. Sims, was Mr. Blake--was Dr. Blake allowed to conduct microphotography?
At the time we did the examination that I actually took those photographs, we both looked through the microscope and then we took the photograph. The photographs that he took of the sock were with his 35 millimeter, not under the stereomicroscope.
All right. Thank you, Mr. Sims. Mr. Harmon, why didn't the Prosecution turn this over or copy to the Defense, this microphotography?
It's documented in all of his notes, your Honor. If you recall--and I don't want to misspeak because I know there is a record on this--we debated not this specific point, but this generic point that the Defense--we didn't have to turn over photographs of things that they had photographed at the same time or simultaneously or consecutively. We had that generic discussion and you agreed with me the whole--
And this topic was not one of those topics, but it could just as easily have been one of those topics had they asked for it. So--I mean, he's got a suitcase full of photographs that are concurrent with Dr. Blake's photographs which they handed us in a big pile just before Gary started testifying. So I don't think there's been any violation of any discovery--the fact of the photographs is clearly documented. I don't blame them for making a big stink out of it at this point in time, your Honor, but it has never been requested. They have had access to the original information. Dr. Blake, had he chosen to, could have taken his own photographs had he provided his own equipment. He's never requested that. You know, we've had this unusual relationship where whatever he said--we've been weighing things because he said let's weigh things. So there hasn't been any resistance to anything that was ever requested.
No. The issue was, if Dr. Blake had reasonable access to the items of evidence and was allowed to conduct his own photography along with the Department of Justice, then since both sides had equal access at that time, there was no need for one side to provide those copies to the other. But if this--but we're talking - the representation that Mr. Sims has just made to me is that that was macrophotography, not microphotography.
Well, and that was Dr. Blake's choice. I mean, he's made a lot of choices in this case that I don't need to reiterate. That was his choice.
Let me ask Mr. Sims another technical question. What kind of camera did you use to do this?
That was just a 35 millimeter camera that's mounted onto the actual stereomicroscope that we have in the laboratory.
The point is, as the Court made, is that these are macrophotographs. I can only go on what he gives me and what--you know, and we requested to see what their photographs were. And the point is that if we knew that they were taking extensive microphotographs and saw what those were in contrast to the macrophotographs and what points could be made, then, you know, we can anticipate that and deal with it and take other photographs. But the point is that right now, they want to draw lots of inferences from a microphotograph and we don't have an opportunity--and you can even see from the photographs taken with--right now that there are four--there are five different photographs and they all look remarkably different in terms of the exposures of light and everything else. In terms of looking at the stain that the jury just saw, one of them is very red, the other one isn't so red, one is in between. And we asked for it, they're the ones that resisted it, so that we could see if there was real comparability with the photographs. When it became clear that we wanted to use photographs with the witness, we were in the position where we gave them everything. So it seems to me that at this point in time, to proceed in this fashion is just unfair surprise and it's not something that, you know, we're fairly in a position to assess. Frankly, you know, I think the points are made without this and we weren't in a position to get comparable documentation by the way that they proceeded.
Just two points. It's very difficult to have a fair and open discussion of this when Blake hasn't been in this courtroom for months and months. So for Mr. Scheck to say--
I thought he was before I ever came here. That must have been an out-of-body experience I had.
I expect to be in a bar in Berkeley and have him come up and introduce himself because I have no idea what the man looks like.
KEY QUOTESo--I mean, your Honor, they did have notice. He's there. Gary records when he's there. He was there during this. The fact that they chose not to pursue this--I mean we've weighed things. They never weighed swatches before.
Okay. So they were on actual notice. And the second point is, to say that somebody could draw unfair inferences from that photograph ignores the fact that this is one we don't have to pretend there's no presumptive test on. We have a presumptive test and we have a PCR test. There's no pretending that that's not human blood on there. That is clearly proven by the test results. The inference that one draws is that you can find human blood when you can't even see it, which is the whole materiality of that photograph. There's nothing unfair about that inference. If Dr. Blake chose to ignore that, that's one thing. They were on actual notice and there is nothing unfair. That's the missing piece that was the subject of the testing for 42B2 in this case, your Honor.
All right. Well, the inference that I draw from this discussion is that Dr. Blake was present when Mr. Sims was conducting part of this examination, that he had microscopic access to the sock and had access to--and was able to take whatever photographs that he chose at that time. So the objection will be overruled. All right. Let's have the jury, please.
I just saw this today and I was just permitted very quickly to look at a series of photographs that Mr. Sims had shown. Now, we had given all of Dr. Blake's photographs of these things, of these sock areas to the Prosecution, and I'm just shown this late today right now? I object to this. I don't think this is right.
Because the Defense had access to the real thing, your Honor.
I expect to be in a bar in Berkeley and have him come up and introduce himself because I have no idea what the man looks like.
While this may be painful once again to see the truth come out at this late date, I don't see that there's any discovery violation.