Yes, your Honor. There is a few issues on the table. I have to respond, I take it--I really think it is our motion.
That is why I'm asking do you have any evidence you wish to offer? Any witnesses you wish to call?
Your Honor--well, first--the first issue that I would like to address, your Honor, are the points that were raised by Mr. Kelberg. I will take them in order. And before even reaching--it is my understanding that the law with respect to rebuttal involves three factors as we outlined them in our brief: Was it available? Could it have been available in the People's case in chief? Is the evidence important or crucial evidence that it is unfair to sandbag this Defendant with at the end of the case? And would bringing this evidence forward at the last minute unduly highlight the evidence? Those are all the issues that are involved in the court's exercise of discretion as to whether or not it is proper rebuttal testimony. But Mr. Kelberg tries to make a point which plays fast and loose to the facts as to whether or not these RFLP results are direct rebuttal to Dr. Gerdes, and it is not, for a number of reasons. No. 1, the--dr. Gerdes testified about item 31 and the board involved in item 31 is a PCR result of a sample collected on June 14th. That is item 31.
Where he disputes the--what we call the failure of controls on that particular set of results, and it has to do with the sample collected on June 14th--I would note for the court's edification that item no. 30, which was also collected on June 14th had DQ-Alpha types that only were consistent with Mr. Simpson and no evidence of any other contributor, so that was not a mixture. This is 30 and 31. Those are June 14th. Also presented on the Prosecution's case were PCR results as to 303, 304 and 305, the samples that were collected on August 26th. Dr. Gerdes did not comment on the PCR results on 303, 304 and 305, taking the position that as a scientist he would not even consider those samples because the Bronco, after June 14th, had been--was outside of the chain of custody that he as a scientist normally requires for examining the integrity of evidence, so he did not comment on 304--303, 304 and 305, those PCR results. These RFLP results are on 303, 304 and 305. They are not on 30 and 31. So it doesn't directly rebut that, nor can they come in and say, well, those are really the same samples, because they were at great pains to have Matheson testify that even though 30 and 31 were supposed to be in the general area of--I'm sorry--even though 303 and 304 were supposed to be in the general areas of 30 and 31, they were separate and distinct swatches of separate and distinct bloodstains and they have to take that position--collected on completely different days under completely different circumstances--that those are separate and distinct pieces of evidence. So the fact of the matter is that these RFLP results are not being offered to rebut Dr. Gerdes' questioning of the scientific controls on item 31 because that is a separate and distinct sample. What they are being offered for here is to add additional evidence to the PCR results from the 303, 304 and 305 which were samples that were collected on August 26th. So those are the facts. Secondly, I would point out, in terms of the rebuttal argument, that when this issue was first raised about their failure to pursue these tests in a timely fashion. And in fact in the--the whole issue of the Bronco samples, I pointed out to the court exactly what was going on. I stated to the court that the whole discussion starting, for example, at 27331 of the record on--in the argument on I think it is May 12th, and I had previously indicated to the court on March 29th at page 20966 in the record, and that is where we were having the general discussion of when we reraised our challenge to DNA evidence under prong 3, I was discussing then under prong 3 that there was a failure of control on some of the evidence samples collected from the Bronco and that this was a problem in the People's case, and that what I was fearing here is that they were not going to proceed expeditiously with the RFLP results from the combination because they were going to sandbag us with this and they could have it done on their direct case, but they were choosing not to because they wanted the best of both. Even if they got ambiguous results, they wouldn't offer it, and if they got results that they thought supported their claim about 303, 304 and 305, they would suddenly bring this in at the end of the case in a fashion that unduly highlighted it, and I called it sandbagging and described exactly the problem from the very beginning. I reiterated that again on May 12th. It was absolutely clear what they were doing. Now, I think on this record, as far as the issue of timeliness is concerned, there can be very little debate. On March--when this court permitted them to combine the samples, it was the understanding of this court, and you said it yourself, umm, when we had our discussion on May 12th about this, that it was our understanding--your understanding at page 27331 of the record, that when they got permission to combine these samples they were going to proceed expeditiously with the testing and it was going to begin immediately, if not sooner. Now, during those colloquies Mr. Harmon took the position, and it has been the People's position all along, that there are no legal restrictions, even the restriction that they should put on their case--evidence they have available to them in their case in chief, and they can't just suddenly save testing for their rebuttal case. They take the position that they are completely unfettered, that we cannot in any way, the court cannot direct them, there are no rules restricting them on when they do the testing, that they are completely free to do it whenever they want. That was their position. That is the position they have taken from the beginning. Now, the fact of the matter is that this court told them and made it clear that once they got permission to combine these samples, and in light of the arguments we were making about fears of sandbagging and everything else, that this testing should begin immediately, if in the sooner. When the issue was then raised again, this court indicated to the Prosecution on May 12th at page 27340 of the record, that we may have here a preclusion by the passage of time. Now, I don't know how much clearer the court could have been that they had to make a real effort to get this process started, and Mr. Sims' testimony is absolutely clear and these Prosecutors knew, everybody knew that they were dealing with a very small amount of DNA. That was determined as early as March 22nd, that the big period of time that it would take for this RFLP testing to get completed, because it was a small amount of DNA, were the times that it takes once those probes are beginning to--the autorads are developing when the probes start, that is going to take like maybe two weeks per probe. That is where the time is going to take in completing the tests. So the issue is could they have--could Mr. Harmon have said to Mr. Sims, look, the Judge has made it crystal clear to us, immediately, if not sooner, this RFLP testing ought to be done. We could get precluded by time. This is something that should be done. Get Steve Myers to do it, get Renee Montgomery to do it. The process of beginning that probing is one that he concedes takes three or four days overall, and in terms of actual hands-on time is much less, he could have been doing other things while the restriction was done, while the southern blot was prepared and these things were going overnight, while the analytical gel was prepared. That is a three or four-day process. He prefer that it be done on consecutive days, but he didn't even do it on consecutive days, as the record is clear. They waited from March 22nd, by his own admission now, to June--to April 25th, that is what he said this morning, even to plan the restriction, which is a process that he just conceded takes two or three hours. Now, the point here, Judge, is that these Prosecutors, even being confronted with the fact that they were obviously trying to flout the rules and sandbag us with these results, and even in the face of the fact that the court told them immediately, if not sooner, you could be precluded by time, did not say to Gary Sims, look, they spent--this record is clear he spent close to 25 days and a hundred hours between March 22nd and coming into court to testify, in preparation for testimony, reviewing his notes. He spends a week sitting up--sitting in his hotel room watching Robin Cotton testify when on other occasions he had been listening to the witness or it could have been done on videotape. It doesn't take that long to get these probes started where the major bulk of the time is going to take.
And as Mr. Sims conceded, once those probes are, you know, beginning to cook for those two-week periods, he doesn't even deal with it, technicians deal with it and there is another person in the lab who pitched in on the RFLP and other work in this case, Steve Myers, who could have taken out some short period of time to get this done, if they wanted to get this done, but they didn't want to get this done. In spite of the court's clear admonition to them that they could get precluded, they were flouting, flouting clear direction of the court and trying to gain a tactical advantage. The record is crystal clear on this, crystal clear that this would have been available to them if they proceeded in anything close to an expeditious manner. There is a huge gap here between March 22nd and when these probes went on June 15th. It is inexcusable. It is purposeful. There can be no question about it, it is in bad faith. And we don't even need bad faith. It is just a question of whether or not it was available to them and it is--it is arrogant, it is arrogant. How clear could you have been to them when you said immediately, if not sooner? It was all our clear understanding they were going to proceed with this important evidence expeditiously. They were trying to gain a tactical advantage. That is all there is to it. And Mr. Sims, I concede, is a fine man, he has a lot of work to do, demands are made for him in preparation of his testimony, but it is on them. They could have said the court has been clear as to what the timing is. Get this done, get somebody else to do it, because it was a very simple process to get those RFLP's going, those three or four-day period that it takes to do the restriction, the analytical gel and get the probes going. They knew precisely what was going on. Mr. Harmon is experienced in this--in how DNA testing works. Mr. Sims made that data available to him. They would rather sit around and talk about how the testimony should go or watch television with other--with other witnesses when they could have done it. The record is crystal clear on this, and they basically were figuring, well, Judge Ito didn't rule against us in terms of when we should start the tests at the beginning of the trial. It was a close call we had on that ruling, but he didn't rule against us, and we take the legal position that there are no obligations on us to begin testing at any particular time or to make anything available in our case in chief.
And even after Judge Ito told us immediately, if not sooner, it was clear to us that there was a time problem here. We can ignore it because he is not going to do anything about it. Despite the clear rules and the clear admonitions and the clear point that they were taking an unfair tactical advantage, that is what they think they can get away with, and that is exactly what the record shows and it is exactly the game that they are playing and it is unlawful. It is not directly rebutting testimony. As I have indicated, Mr. Kelberg's arguments are playing fast and loose with the facts. This is not rebutting 31, a sample collected on June 14th in a particular PCR result. This is supplementing the previous PCR results from 303, 304, 305, samples that were taken on a different date, samples that the Prosecution witnesses were at pains to say were taken from a different bloodstain on that console.
Okay. With respect to the law of rebuttal, the prejudice here is clear. This is important evidence in the case and by proceeding in this fashion they are trying to unduly highlight this evidence and it makes it extremely difficult for our witnesses, who would have been on direct examination, to confront this evidence when they first testified. That is the advantage that they are seeking and that is the advantage which the law says is improper in terms of proper rebuttal. And this is not even rebuttal; this is really reopening their case. It is absolutely and utterly unjustified. Now, with respect to what this is going to entail, Mr. Kelberg made another argument that is fast and loose with the scientific facts with respect to the numbers and the testimony that would be required from Dr. Weir on mixtures and the peculiar problems presented by mixtures here. And on this point, with the court's permission, I would like to defer to Mr. Neufeld since this is his area to address Mr. Kelberg's point with respect to the statistics.
The arguments with respect--Mr. Kelberg argued that the RFLP results on 303, 304 and 305 merely serve to corroborate the PCR results on 31, which is a completely different sample at a different time. And it can't be corroborative for a number of reasons: No. 1, what we are talking about here is a mixture, and this court has already ruled that you have to have a number for the mixture, and obviously the--creating a number for a mixture is a complicated process, as we have seen. The problem--and the key problem here is that the jury has numbers about a single source RFLP pattern from Mr. Goldman and Mr. Simpson which are very, very small numbers, very low frequencies. And they may assume--they would be entitled to assume that if they just heard, well, there is an RFLP that shows a mixture of a pattern consistent with Mr. Simpson and Mr. Goldman on the 303, 304, 305 combined stain, the argument is the jury would naturally think that those very, very low numbers in the millions or billions, whatever the patterns are, are the numbers that they should apply to the mixture on 31, which is entirely different stain anyhow. And we know, even from the calculations of Dr. Weir, which we contest are unduly making that probability a low one, that a mixture is different, and it is far less of a persuasive number. And you have already ruled that it is the law of the case that they have to present those numbers and that is what Barney rules, they have to present those numbers separately. And it would be plainly prejudicial here, on an entirely different sample, to let them not present a number on a mixture. Not only that, Dr. Weir's report that you have gotten here, because of some peculiarities in these RFLP results, engages in a completely different method for calculating a mixture, different than even the one that he presented here the last time. And so it seems that it would be contrary to what this court has already ruled with respect to the need to present numbers for mixtures to let them put on an RFLP result for a mixture and let the jury speculate about what that could possibly mean. It just violates all the court's previous orders in this case. Finally, I think it is clear from the testimony of Mr. Sims, he is not qualified to present these numbers with respect to mixtures anyhow. He is not--doesn't have sufficient expertise in statistics, particularly on a method for calculating a mixture which has never been published which Dr. Weir was--essentially was presenting for the first time in this court himself, when dr.--when Mr. Sims' only background in this essentially is taking a few-day courses a while ago from Dr. Weir, which couldn't have even addressed the method that Dr. Weir testified to and presented in this case. So for all these reasons what we are facing here is that if you permit this--what we think is in the rebuttal testimony, reopen the case, despite all the warnings this court gave them, that they were at peril if they didn't get this done, to be precluded, if you permit it, Gary Sims would have to testify about the RFLP, Dr. Weir would have to testify about the mixture numbers, and we are going to have to call Dr. Shields as a rebuttal witness on all of this, so that is what we are facing. It is unduly extending this case and it wasn't necessary in the first place and it was only done to gain an unfair tactical advantage.
I'm interested in the physical proximity of 31 and 303, 304 and 305 and I'm interested in an explanation for the delay between March 22nd and April 25th. I'm only interested in those two things.
All right. Mr. Clarke has been kind enough to do a--I'm sorry, Mr. Goldberg has been kind enough to do a drawing. Unfortunately I will used to it write a note or two to myself, but let me hold up for the court's observation. The note is, "Matheson took swatches from the area immediately contiguous to the 30 and 31 stains" and it looks like concentric circles one might see on the stump of a tree after it has been cut. And the court can see the proximity--I think the court can see from the distance--if you would like, I can bring it up for you.
--the proximity, and obviously that goes to the relevancy of using 303, 304 and 305 to corroborate the accuracy of the 31. It is not an issue of when the stains are taken. Obviously the People's position those stains were deposited at the same time, June 12, 1994, in the late evening hours. And so the real question--and by the way, Mr. Goldberg hands me a property report that bears the contiguous numbering scheme with 000685 dr 94-08-17431 under the last item listed, "Six cloth swatches, five used to collect additional stain from the same location of item 30, right side of" looks to me to be "Center console, one swatch used to collect a control area adjacent to the stain" I think is what Mr. Goldberg would like me to apprise the court of, if the court was not aware of that. The point is, is that the contiguous--the contiguous relationship between the stains, 30 and 31 and 303, 304 and 305 is really the issue, on the theory that they were deposited clearly at the same time. I don't think anybody can really argue with good faith that an RFLP result cannot corroborate a PCR result, and so if the court finds that in fact the area is the same general area for these stains--and Mr. Goldberg then points to the next item from the same report next page saying, looks to be "Six cloth swatches, five used to collect additional stain from the same location as item 31, right rear top of the center console and one swatch used to collect control area adjacent to the stain." So that should take care of identifying where 303, 304, 305 come in relationship to 30 and 31. So that makes it clearly relevant. And I hope that answers the court's question, because clearly circumstantial evidence, which corroborates the evidence received in the People's case in chief from the PCR results on 31 is rebuttal evidence. And I must point out to the court, Dr. Gerdes took the stand in August. According to the notes from Mr. Sims, Dr. Blake saw the last--the D4 autorad on July--July 20. That is before I believe--that is the third probe--second probe, so he at least knows we've got a two-probe result at that point. And certainly his interest must be piqued. I'm assuming Dr. Blake is in contact with Dr. Gerdes in preparation for the Defense case, so Dr. Gerdes has to at least be aware of this. Dr. Gerdes attacks all PCR. Unlike what Mr. Scheck says, in fact Dr. Gerdes does inferentially attack the results on 303, 304 and 305 because he says PCR, forensic out, for inclusion/exclusion, and that is going to take care of all of our PCR results if you believe Dr. Gerdes' opinion. So with respect to the first question the court has, that is the direct response. With respect to the delay, your Honor, I know the world thinks this is the only case in California, the only murder case, the only rape case, the only case where DNA evidence is involved. I think the world has seen one thing. Gary Sims is a meticulous craftsman of his trade and I must say it is a bit disingenuous to have the Defense attack Dennis Fung as a bumbling fool and then criticize Gary Sims for being a craftsman in his trade. And I must say, your Honor, if every Judge said to the Prosecution, I want this case put to the priority no. 1 and everything done ASAP on this case, how can any laboratory figure out which priority really comes first? The law requires we use judgment and reason and common sense and I think from the record that has been laid out here today, and yesterday evening, and an interesting record it is to learn how Mr. Sims spent his spring and early summer, it is clear that the Prosecution had a scientist of the first order who wanted to be certain that he was doing things carefully so that the same kind of attacks made on others would not be an attack made on him. And I must say, Mr. Scheck's suggestion that other people could come in and do this, I doubt there are too many folks in the scientific community or in our office who would want to rush in and volunteer to get involved in this case. And as one who was asked to come in kind of at the last moment, hindsight being 20-20 when the call came, I maybe should have reconsidered. I have a feeling that that gentleman up at the DOJ lab that has been mentioned as a possible person to have taken over for Mr. Sims probably is saying man, thank God, thank God I wasn't the one asked to do this. Scientifically it makes sense of course to have one person try and control the sequence of tests, so that you can have the chain of custody and you can have the continuity of presentation, and that is what Mr. Sims provides. I must speak in response to Mr. Scheck's comment about the Prosecution, we want the best of both worlds. Boy, if we got an ambiguous RFLP result, hey, we would bury it. We don't bury it, we Brady it, we bring it to the court's attention, we bring it to the Defense's attention. And they are going to say that that result corroborates Dr. Gerdes' opinion that the 1.3 allele on 31 is an artifact. We want scientifically reliable valid results to offer. Mr. Sims is that kind of scientist. He took his time, he had other responsibilities. I don't believe this court in hindsight can say that he was negligent in how he went about this, negligent in how he went about his business. He was examined at length as a witness here. For the court to say he should not have properly prepared or should not have listened to other witnesses who testify, all the experts in this case are listening to the experts on the other side or on their own side who testify in related areas, because it could be a matter for which they will have to give testimony or be subject to cross-examination, that is unreasonable.
I think Mr. Sims has laid it out. He wanted to make sure in the way he does business that, no. 1, he had the human DNA, and he did some additional work to make sure he had that, and to be sure that he could conduct the tests in the manner that he feels is scientifically necessary. And without knowing for certain when he is going to have that continuous period of time necessary to do these tests in sequence, if he gets tied in to begin with and something come up to take him away, he is not going to be able to do one thing or the other. He exercised his judgment, your Honor. If the court feels he made a mistake in exercising his judgment, do we keep this jury from learning the truth? Do we keep this jury from learning something that corroborates Mr. Sims' original testimony and shows that Dr. Gerdes is simply wrong? For an expert--this is not bad faith. This is just going through the process of doing his work in a careful, meticulous manner and having time go by. You know, we--maybe what we should have done when the court said is it time for you to rest, we should have said, no, we can't rest. We got to wait for these probes to be done. Now, the Defense says they can't rest. This is unusual circumstances, at least in my experience, your Honor, when one side doesn't rest waiting for something to come him in. I mean maybe that is what we should have done, hindsight being 20-20. That is not what we did. The point, though, is, there is no reason for us not to want to put on this evidence if it is available, but we want to put it on when we are certain that it is reliable and valid. And I ask this court to recognize that in this case time estimates by all sides have proved to be very, very short-sighted estimates. And to hold Mr. Sims and the Prosecution at this time, because of what the court may perceive as an unnecessary one-month delay between the period in March and the period in April, I think is to penalize us at a time when we cannot penalize really anyone else for estimates that have proved to be less than accurate. I don't think the court can see Mr. Sims as someone who intentionally avoided doing what should be done to get results and that is I believe what the court would have to find, bad faith by the Prosecution, trying to gain an advantage, and I think this court understands from Mr. Sims that he is not the kind of man who is going to let any Prosecutor tell him how he should do his business in order to gain a tactical advantage. He is the scientist. He is the one who believes this is the mechanism he must follow to get a reliable and valid result. This is true rebuttal evidence, your Honor. If the court has any other questions, I will be glad to answer them, otherwise I will submit the matter.
Mr. Kelberg's argument is completely circular. He says since it is obvious that 30 and 31 were deposited on the same day, June 12th, as 303, 304 and 305, then if we put on evidence about 303, 304 and 305, it rebuts Dr. Gerdes' criticism of 31. Well, that is not the record in this case and it is plain from the testimony of other witnesses that we are contending or the jury is free to believe that all those bloodstains were not necessarily there on June 12th. That is the point. Secondly, they can read from police reports all they want, but I commend the court's attention to 25187 of the court transcript where Greg Matheson begins to discuss his collection of 303, 304 and 305. And as I indicated, he is at great pains to point out that he was swatching in the vicinity of 30 and 31, but he was distinctly taking a different bloodstain, that he has actually seen, he claims, a lighter area which might have represented previous swatchings and he was taking a new sample. So again, it is a circular argument and it is not directly rebutting. This is evidence about 303, 304 and 305 which Dr. Gerdes' did not address. He was addressing 31. And as I point out again on 30, there is no evidence of even a mixture. His argument about no one else should be asked to do anything in this case, the record is clear Steve Myers assisted in other RFLP's in this case and this was really nothing more than a ministerial matter to begin the restrictions and the analytical gel and could it have been done.
I would point out to the court that the record is that on March 22nd they knew how much DNA and they knew how long it would take. He only began planning on April 25th the restriction, which is a process he takes--would take two or three hours, and he didn't actually begin it until June 7th. So I would submit that the real delay here is between March 22nd and June 7th. Finally, the Prosecution is very conveniently putting it on Gary Sims. I think the record is clear, it is not Gary Sims. The activities of Mr. Sims between March 22nd and the time he--and April 25th or June 7th were primarily taken up with preparation sessions for testimony in this case. When Mr. Kelberg says who sets priorities with reason and judgment and common sense; it is them. They could have said to Gary Sims, Mr. Sims, it only takes a few hours and a three-day--at most a four-day process to begin getting those probes cooking, which is going to take the longest period of time developing them. The Judge said immediately, if not sooner. The Judge said we could get precluded because of time. The record is clear during this period between March 22nd and April 25th or June 7th, as we would contend, they could have told him to do that. They could have suggested there was--he gave no scientific reasons why that couldn't be done. It is not a question of Gary Sims' scientific judgment in trying to be careful.
That is all a lot of nonsense. Steve Myers could have done it, but that is not even the point. They had the obligation, they had the obligation to say the Judge has made it clear that we are in danger if we don't make a good faith effort to get this evidence there or even--or an effort. The standard is not even good faith as far as the rebuttal issue is concerned. We have a problem. The Defense has made it clear what the problem is. The Judge has told us in no uncertain terms immediately, if not sooner we could get precluded because of time. Just do--start that three our four-day process to get the results going. That is what the Prosecution could have requested of the scientists and he didn't get up on the witness stand and say there was a scientific reason he couldn't have done it. It is on them; not Gary Sims.
All right. Thank you, counsel. All right. I want to review two items from Dr. Gerdes' testimony and I want to review, before I rule, the exhibits that discussed items 31 and 303, 304 and 305. So I will have to have Mrs. Robertson pull those. Mr. Kelberg, would you give Mrs. Robertson a list of the exhibits.
Photo exhibits. All right. As to the 1054.7 hearing that the court conducted with regard--and Brady hearing that the court conducted with regard to Dr. DeForest, where is Mr. Neufeld? Chosen to absent himself. Mr. Scheck, would you tell him that the result of the hearing this morning was that the pages that the court had concerns that were potentially Brady material were in fact turned over in a previous discovery matter, so the issue is moot.
Well, Mr. Hodgman spoke to me before he left and said that the issue had to do with the wet transfer stain of Nicole Brown Simpson's blood on the other sock that went through the other side.
I want to point out that that is a finding not just of Peter DeForest, but Mr. Sims, so I understand--if--I take it this is the July 17th materials are there pictures associated with that?
--whether or not it is Brady material, but it turns out, unbeknownst to me, that had been previously turned over to you.
Your Honor, may I be excused so we can go upstairs, get the exhibit numbers and give them to your clerk?
It is arrogant, it is arrogant. How clear could you have been to them when you said immediately, if not sooner?
I'm interested in just two things. I'm interested in the physical proximity of 31 and 303, 304 and 305 and I'm interested in an explanation for the delay between March 22nd and April 25th.
as one who was asked to come in kind of at the last moment, hindsight being 20-20 when the call came, I maybe should have reconsidered
So I wasted all of my time reading those materials.
Despite the clear rules and the clear admonitions and the clear point that they were taking an unfair tactical advantage, that is what they think they can get away with, and that is exactly what the record shows and it is exactly the game that they are playing and it is unlawful.