All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, we have a--one matter already scheduled for this afternoon, which is the motion regarding RFLP testing of evidence taken from the Bronco automobile and also some issues--continuing issues regarding the scope of the Prosecution rebuttal case. Mr. Cochran.
Yes. We would ask--we want to just make sure the court would allow us to argue the issues regarding the scope of the Prosecution's case because the case will be over. We may not have argued that motion, so I wanted to make sure we did that at least, if not this afternoon.
Not left to them, your Honor. I think you would have to interject yourself to make sure that happens so we would have to do it sooner rather than later, so rather this afternoon or first thing in the morning. I would give your Honor your choice on this. I think counsel are prepared to do that as soon as you are ready. Bob Blasier has a portion of that and I suppose he is out talking to Mr. Rubin, but I think Peter Neufeld is ready on a portion of it.
What would make sense, your Honor, if you can schedule it this way--may I be heard?
Good afternoon. Mr. Scheck of course is going to be addressing the RFLP issue on the console this afternoon, and we just got, as you know, points and authorities this afternoon on the Dutton matter. But for instance, you know, you asked the Prosecution yesterday are there any Kelly-Frye cases at all involving this kind of testimony, you know, anywhere, that would give the court guidance, and at that point, you know, Miss Clark said, yes, I believe there are, but I'm not certain. We just spoke to Mr. Dutton this afternoon and Mr. Dutton informs us, for instance, that as to these four matters he has never participated in any Kelly-Frye hearing anywhere in America or Canada on these issues before that he wants to raise for the first time in this particular case. That is the kind of facts we need to know before we can adequately brief it and argue it before your Honor. They said this case is going to last three to five days. Five days. It is going to be the most extraordinary five days, you know, since the earth was created. All we are saying is, is that we need to know, before we start running off in 16 different directions, what evidence we are really going to refute both in cross-examination and conceivably surrebuttal. Yesterday I also asked that they put in points and authorities, your Honor, on June 17th testimony. I don't know if you recall that. Remember they felt that June 17th was now relevant, yet we haven't heard anything about June 17th.
But there is no points and authorities as to why--what doors have been opened for this kind of testimony at this time. All I'm saying is this: I think we are entitled, as this train moves down the track, to get some understanding right away as to what the court is going to permit and what the court is not going to permit so time is not expended on unnecessary issues.
All right. I agree with you wholeheartedly, Mr. Neufeld, so you are raising obviously the Dutton issue which we just got points and authorities on.
The Bronco fiber report which they feel the door has been opened up because a witness' suggestion--
Yes. I think Mr. Bailey will be ready to argue both those issues tomorrow morning, your Honor, and I would ask that time be set aside tomorrow morning as to both the Bronco fiber issue and also as to the Dutton matter tomorrow morning.
Your Honor, although we received a proffer yesterday with respect to I guess Friday, whatever it is, with respect to the scientific witnesses, most of the witnesses, included on that list of sixty people are not expert witnesses and they, too, have to fall within the criteria of proper rebuttal testimony, and so we can argue that.
Are there any particular areas that you can isolate for me that are apparent to you just from who they are?
No. That is the problem, is that we have looked at that list and there are many people on the list we have been unable identify at this time. I can't tell you right now who they are. I can give that you tomorrow morning. And I would request that first thing tomorrow morning when we give you that list that the People then come forward with a brief proffer as to who these people are and what they would be testifying to so we can argue in a 402 or 352 or, whatever, that it is inappropriate.
I don't know that it will happen first thing tomorrow morning, but I at least want to frame the issues and get us scheduled to discuss these matters.
Also, you had mentioned that you were going to review the DeForest matter with Mr. Hodgman.
I have not heard back from Mr. Hodgman today, but in case you haven't noticed, I have been on the bench today.
In fact, Mrs. Robertson, would you instruct Mr. Hodgman to be here tomorrow morning 8:30 so we can conclude the DeForest matter.
Oh, your Honor, and also we will want to be able to litigate the Peratis tape which they have come forward with now.
Your Honor, before we begin with Mr. Sims, there is the matter of it appears now to be Agent Deedrick and maybe Mr. Bodziak are the People's intended witnesses. And the first matter I should raise, let me--we just received this afternoon a document from the--documents from the FBI. They had previously been described to me by Mr. Goldberg as preliminary reports. I don't know if it is a preliminary or a final report. But basically what has been done is they took some chemically treated paper and something that is called an Identicator and they took the jeans--
Right. Now, I asked Mr. Goldberg again to--whether he would concede that the picture that I wanted to show to the court demonstrates that the jeans are altered. Looking at the picture it is clear that it jeans are altered. He said he hasn't looked at it yet and he maintains that the procedures that are being used to create these test impressions are not in any way a destructive test.
And therefore he takes the position that no notice need be given to the Defense as to any of these testing procedures. That apparently was the position that they took because I thought that this order--
For one simple reason: I asked if they were going to be conducting any further tests with the jeans. Mr. Goldberg indicated to me that that could happen. I asked if they would give us notice of that. He said I will give you notice, but it is not necessarily going to be timely notice, because I don't think you are entitled to that. And I said, well, if we want to have an expert present or document or even litigate any further alteration of these jeans as to whether or not it is reasonable--reasonably necessary for that to be done, particularly since we think that it shouldn't have been done in the first place, we want this court to order the Prosecution to give us notice so that we can, A, litigate whether this should be done in the first place, whether there is reasonable necessity to do it under griffin, and B, adequate opportunity to have experts there to do it. And I want to put the court on notice that we don't have full discovery from them. The test impressions that were actually taken from various objects we don't have.
Why don't you and Mr. Goldberg be here at 8:30 and we will discuss the matter. All right. Mrs. Robertson, would you summon Mr. Goldberg tomorrow morning also at 8:30. All right. Mr. Harmon, are you going to conduct the hearing as to Mr. Sims?
Your Honor, actually I believe I'm going to have some participation, with the court's leave, because we feel it is a hearing that is most appropriately bifurcated. Our position is that this evidence is clear rebuttal evidence. I was intending, with the court's permission, to tell the court, argue to the court why in our judgment this is clear rebuttal evidence such that the timeliness of the RFLP testing becomes irrelevant. I did hear this morning--I know the court in a similar motion regarding scope of rebuttal was concerned about the timeliness of the photographs being collected and so forth, and I'm mindful that the court has expressed concern regarding the RFLP testing. But I would like to be heard as to why I believe, given Dr. Gerdes' testimony, the evidence concerning the 303, 304 and 305 RFLP stains is true rebuttal evidence, such that the timeliness issue with respect to case in chief falls by the wayside. We are certainly prepared with Mr. Harmon and Mr. Sims, if the court wishes to hear the circumstances of the scheduling of the tests, the chronology of events. Mr. Harmon is obviously intimately familiar with those and is in a better position to conduct the inquiry if the court feels that that is necessary. But I truly do believe that if the court hears what I believe to be the reasons why this is rebuttal, the court may be convinced that that hearing is unnecessary. Your Honor, as the court will recall from Dr. Gerdes' testimony, he contested the reliability and validity of Mr. Sims' interpretation of the 1.3 allele in stain 31 from the Bronco console. As the court will recall, the testing on the PCR of that stain 31 was, in the opinion of Mr. Sims, consistent with a mixed stain of Mr. Simpson and Mr. Goldman. I believe 1.1, 1.2, 1.3 and a 4.. The 1.3 and the 4 would be Mr. Goldman. Dr. Gerdes' position was that the 1.3 allele was too faint to be legitimately called as an allele which was present and in fact it could be the result of cross-contamination due to sample mishandling.
Do you want to direct my attention to the particular passage in the transcript where Dr. Gerdes--
We can get this for the court. This is a summary. I had the issue framed in my mind in discussing rebuttal evidence with Miss Clark, Mr. Hodgman and so forth, and then I confirmed with Mr. Clarke as to the substance of--and with Mr. Harmon as well the substance of Dr. Gerdes' testimony, but what I am saying is a representation made to me in my consultations with Mr. Clarke, Mr. Harmon as to Dr. Gerdes' assertions as part of his testimony as a Defense witness, and in essence what he said with respect to that stain in comparison, for example, with item 52, which was one of the blood drops on the Bundy walkway, which Mr. Sims did also see a 1.3 showing in the PCR testing but which in that circumstance Mr. Sims felt could not be called as a true finding of an allele from a contributor, and in fact attributed it to an artifact. So Dr. Gerdes, one of his positions was Mr. Sims had to be consistent, he couldn't call the 1.3 in stain 52 an artifact and not call the 1.3 in item 31, the console stain, an artifact as well. The point is that stains 303, 304 and 305, combined under order of this court for the purposes of RFLP testing, come from an area nearby to where item 31 was found in the console.
The RFLP tests, we have done now all four probes, but there is a report only of the three-probe findings. The three-probe findings are again consistent with a mixed stain of O.J. Simpson and Ronald Goldman, and further, they are consistent by intensity levels with the intensity levels found in item 31; the intensity level of Mr. Simpson's contribution being significantly more than the intensity level of the 1.3, 4 allele called by Mr. Sims as consistent with Ronald Goldman as a contributor. So the essence of this RFLP test results from the 303, 304 and 305 stains is to undermine Dr. Gerdes' contention that Mr. Sims was wrong to call the 1.3 and 4 a contribution by Mr. Goldman, but rather, he should have called it an artifact, or to be consistent, it was an artifact through sample mishandling. We are corroborating with 303, 304 and 305's RFLP results, corroborating the accuracy of Mr. Sims' call on 31's accuracy which was called into question by Dr. Gerdes, a Defense witness, and that is why this is true rebuttal, because we are now going to reinforce the accuracy of Mr. Sims after that accuracy has been attacked by Dr. Gerdes. Furthermore, your Honor, I would submit to the court, as I know the court has had a concern as a requirement, that anytime that test results have been given there be population statistics given to the jury in order to understand the rarity or the commonality of a particular finding. I submit to the court that on this RFLP series of tests on 303, 304 and 305, the statistics are already heard by the jury. The statistics are the PCR statistics of stain 31 because we are not independently offering 303, 304 and 305 for themselves, but to prove the accuracy of 31's finding and the call by Gary Sims as a result of which no further independent statistic should be required. And in fact the statistics which have been received by the jury on the PCR, Mr. Clarke was kind enough to give me the testimony, are much more favorable to the Defense than any statistics offered by someone such as Dr. Weir would be for RFLP tests on 303, 304 and 305. For example, on stain 31, assuming two contributors, the statistics run from 1 in 4700 to 1 in 19,000. And for the 303, 304 and 305 PCR stains, there has also been testimony as to these statistics, they run from 1 in 570 to 1 in 10,000. But if one gets into the RFLP statistics, and there was a recent report produced by Dr. Weir, which has been given, as I understand it, to the Defense, for--assuming two contributors, you are looking at a range in 1 in 58 million 133,000 to 1 in 114 million 237,000. Now, I don't hold myself out as the brightest guy in the practice of law, but it would seem to me pretty logical that if I were the Defense, I kind of like the PCR numbers as to the commonality, a lot more than I would like the RFLP numbers. And that is the point of this evidence of 303, 304 and 305. It is not offered for independent value, which may have resulted in it being in our case in chief, but it is being offered to corroborate findings that we did offer in our case in chief which are basically similar findings; it is a mixed stain, it is a mixed stain consistent with O.J. Simpson and with Ronald Goldman, but it is now being offered to directly attack a Defense expert testifying in the Defendant's case in chief. That, as I understand the law, your Honor, is true rebuttal, and for that reason this evidence should be received, irrespective of when the tests should have been or could have been performed. And I offer no opinion on the timeliness, I leave that to Mr. Harmon and Mr. Sims, if the court still feels the need to hear it, but I suggest to the court if this is true rebuttal then we cannot offer this evidence until we reach rebuttal. We have reached rebuttal today. The tests are available today. And that make them timely on rebuttal. As I also indicated, we submit to the court that no new evidence independent of statistics is required for the interpretation of these RFLP findings on 303, 304 and 305 where they are offered to corroborate the findings of PCR results on stain 31. Thank you, your Honor.
Thank you, your Honor. I would like to just give you a little outline of the chronology and then we can go through it with Mr. Sims, if that is what the court would like to do. As the court recalls, on or about March 9, you approved, over the strong resistance of the Defense, our desire to combine these tests for--to take whatever results came out of them, let the chips fall where they may. Other I think significant events--and Mr. Sims will go through the chronology in detail to demonstrate to the court that these things were processed in an orderly fashion. Mr. Sims made trips to Los Angeles. Mr. Sims attended study groups during this time period. Mr. Sims consulted with me in anticipation of his testimony. He also prepared reports, personally prepared the extensive discovery that is required. All of these things occurred at the same time he was trying to satisfy the desire to have these results produced as expeditiously as possible. As the court knows, during his testimony, there was a death in his family which disrupted his life. He took proficiency tests. His testimony was disrupted by that personal event. It is my opinion that the court, if the court is interested in any chronology, the most important part is the beginning, so I invite the court to stop me when you think we've covered the area that you are interested in. At some point, once the RFLP process has begun--and by "Beginning" I mean the hybridization. That is a misconception that the process begins when you begin the hybridization. Dr. Gerdes lauded the Department of Justice for their meticulousness. In fact, everybody played off LAPD against DOJ, and now you will see as this hearing unfolds, they will be criticized as being as meticulous and fastidious as they were that making sure that even in spite of your approval of the combination, there were subsequent evaluations which had they not produced favorable results, Mr. Sims would not have proceeded with the combination, because it would have been against his scientific judgment to do so. But once the hybridization begins, and we will give you some numbers on how long each probe was allowed to hybridize, essentially you are stuck with however long it takes to develop the results. Some of the key dates that I think to keep in mind in trying to identify--and I have asked every time we have addressed this issue, precisely what is the legal issue that we are addressing here? Mr. Scheck has consistently complained that we have denied them access to that evidence and every time he has done that I've said, no, the balance is still there, it has been there since March if you really wanted to test it, so that never was an issue. I think if they wanted to fashion a legal issue that somehow they were forced to proceed with their case without knowing what the results were, you will see that the chronology does not support that. The outline actually lists the date that the People rested, which is July 6th. The Defense case began on July 10th. And if they complain that they were sandbagged, they didn't have to call Dr. Gerdes when they called him, they chose the date that they called him--and I think the court will see, when you begin--when they called Dr. Gerdes with what was known by the Defense in order to fashion and very carefully craft or carve a way around the overwhelming biological evidence in this case, you will see that Dr. Blake was once again a regular visitor there, was a regular reporter on the development of these probes. And as of the date of Dr. Gerdes' testimony the Defense was aware that there were in fact three RFLP probes which produced the results that were produced in this case.
What interests me most is the time period between March the 9th, when this court granted you permission to combine those samples for the purposes of attempting a single RFLP test, and the time that the test was actually undertaken.
Well, I think you will see it was undertaken right away, but we are going to differ on what undertaking the test means, but I would be happy to, because that will bring us all the way up to August, depending on how you define undertaken. So we will just start with March 9th and you tell us when you've had enough, your Honor. We've got the whole period of time covered. It will take a while, but maybe we will have our fifth probe before the hearing is over. So would you like me to have Mr. Sims testify?
They said this case is going to last three to five days. Five days. It is going to be the most extraordinary five days, you know, since the earth was created.
I don't hold myself out as the brightest guy in the practice of law, but it would seem to me pretty logical that if I were the Defense, I kind of like the PCR numbers as to the commonality, a lot more than I would like the RFLP numbers.
We are corroborating with 303, 304 and 305's RFLP results, corroborating the accuracy of Mr. Sims after that accuracy has been attacked by Dr. Gerdes, a Defense witness, and that is why this is true rebuttal.
Dutton issue tomorrow is fine.
He said I will give you notice, but it is not necessarily going to be timely notice, because I don't think you are entitled to that.