All right. Back on the record on the Simpson matter. All parties are again present. All right. Counsel, our agreement was to have our discussion regarding Dr. Whitehurst at this time. I'll hear from the Defense first since they're the party proffering the witness.
Initially, I would like to present to the court Mr. Steven Cohen who is a member of the Washington D.C. bar who is Mr. Whitehurst's attorney and asked me to request that he be allowed to represent Mr. Whitehurst in this proceeding should we need any input from him.
Also, there are a number of things pending with respect to Whitehurst and the issues that are raised by Dr. Whitehurst, and we issued four subpoenas. Actually they were two sets of two. They were identical. There was one subpoena that called for a great deal of information. Then there was a second subpoena after we had interviewed Dr. Whitehurst that made some specific requests that were in addition to the general request. Both of those subpoenas we served, some on the FBI and on the Department of Justice, which is the agency that is responsible for the office of the inspector general. I was handed this afternoon a response to or a brief that the federal government filed as to our subpoenas and I have not had a chance to go through it carefully, but I have read the first part of it, and it appears that they have broken up the information into several categories, some which they're asking you to review in camera, which I assume is the large package that you have there because that's a lot larger than they provided to us. What I would suggest is that I be permitted to proceed with our proffer as to what it is we would like to recall Agent Martz for and what we would like to call Dr. Whitehurst for, and hopefully that will frame the issues well enough that it will save you some time, save the court some time in going through these materials to determine what might be relevant. I would, however, in light of the brief that we received--and I don't know whether there are other documents that are in the process of being produced to us, but I would like to also reserve the opportunity to add to that based on new information if I get something tonight, perhaps tomorrow.
First, it's important to point out that we became aware of Dr. Whitehurst only last week when there was a television show on prime time live that reported a series of allegations that Dr. Whitehurst was making against members of the FBI and specifically members in the crime lab of the FBI. Dr. Whitehurst is a--he has a Ph.D. in chemistry that he received in 1980. He joined the FBI in 1982. In 1986, he was assigned to the crime lab in Washington D.C., specifically in the materials analysis unit. His area of specialty was explosive residue analysis and explosive analysis. He worked on bomb cases where they would be required to analyze the remnants of the bomb or bombs that had been unexploded. He is also in his fourth year of law school at Georgetown University. During the course of his employment at the crime lab, which has been from 1986 to the present, he has had extensive contact with Special Agent Roger Martz who testified in this case. Many times when he would be called upon to investigate explosive analysis, he would be required as to the presence of certain chemicals or compounds in explosive residues or in bombs, and that would involve working with Special Agent Martz with Agent Martz doing mass spectrometry as he did in this case. Dr. Whitehurst became concerned about nine years ago, about the time that he started in the lab, he became concerned about the practices of a few individuals at the lab, specifically Agent Martz and a few others with respect to the practices that they would indulge in with respect to the cases that he was familiar with. And I might state that he's--he worked closely with Agent Martz on at least 10 cases. He wasn't sure how many more than 10, but it's a minimum of 10. He's had contact on many, many cases with Agent Martz' work. The allegations that he has had fall into several categories, and they include Agent Martz systematically and regularly not providing Brady material or suppressing Brady material or material that could be exculpatory to the Defense, either changing or not including in reports that are prepared in casework information that might be considered exculpatory information, slanting reports and testimony in ways designed to help the Prosecution and hurt the Defense, reaching conclusions in advance of testing and then designing the test around those conclusions that would help the Prosecution. He also makes extensive allegations about Agent Martz working on cases where he is not qualified, specifically bomb residue cases. And it would be our proposal that Dr. Whitehurst, if he is allowed to testify, one of the areas that we would like to go into is his opinions, observations of the custom and habit of Agent Martz with respect to these issues I've listed. Let me state before I go further, I think we can break this down into fairly distinct categories as to what it is we want to do. We want to recall Agent Martz for some very specific purposes that I'll state in a minute that are purposes in a sense irrespective of Dr. Whitehurst. The information that we have that causes us to want to recall Agent Martz came from agent Whitehurst and now it's come from the FBI and the office of the inspector general. But there's an independent proposal that we are making to recall Agent Martz. We would also like to call Dr. Whitehurst to cover some of these general areas that I've just described as well as in response to what Agent Martz says. If Agent Martz answers questions a certain way, then we may not need Dr. Whitehurst to answer the same kind of questions. Now, agent or Dr. Whitehurst has explained that the allegations about not including Brady material or not including information in reports that might be helpful to the Defense can be explained fairly easily, and that is, in explosive residue cases--which is his area of expertise and his area of expertise with Agent Martz, although he's also worked with Agent Martz in sexual assault cases, poisoning cases and one or two other areas, but primarily explosive residue. The way Dr. Whitehurst explains what he feels is improper activities on the part of Agent Martz is that, when they do analysis of explosive residue in a particular case, the analysis might show that what they have found is consistent with the presence of a particular compound that is a compound that perhaps could be tied to a suspect, is the compound that would help the Prosecution's case if they were able to determine if that compound was present.
With these tests, there are also many types of compounds that are also consistent with the results produced by the FBI lab, and it is the elimination of these other compounds that are in many cases innocent in nature. In other words, they would not help the Prosecution's case, they would help the Defense case that are either taken out of reports or not included within reports so that if they find that what they have analyzed could be one of five different things, they only include the one that is incriminating and helpful to the Prosecution. Now, under evidence code section 1105, it is our position that these are repeated situations that have a regular response by Agent Martz and the crime lab that fall in the category of habit and custom, and we are entitled to present that information to the jury as it might reflect actions in conformity with their habit and custom in this case. Now, I might point out that as a result of Dr. Whitehurst's allegations, the Department of Justice just announced yesterday that they are convening an independent panel of scientists to review the work done in the crime lab. Now, getting specifically to Agent Martz, you might recall that some of the points that we felt were relevant with Agent Martz and that I attempted to bring out in my examination of him were that he had designed the testing in this case intentionally to fail. In other words, the test was not designed in a way that it would find EDTA in the best possible way. In other words, the testing was not very precise, was not very scientifically precise, was designed to fail. Another point that we attempted to make with Agent Martz was that with the test that was designed, he was looking for basically four things, as the court might recall. And it was our position that once he found the first three things, he stopped looking for the fourth thing in any kind of an effective way at all. You might recall that was the 132 daughter ion that he admitted he had not specifically looked for that. He had tried to do a full daughter ion spectrum. We also tried, attempted to make the point that Agent Martz was bias towards the Prosecution and particularly after we had the morning break after my first session with him where he answered that he had changed his attitude and became more hostile, and I think he made a comment to the effect that he wanted to tell the truth more or he didn't feel like the truth was getting out with the answers that he had been giving previously.
We also brought out the fact that he had destroyed data. And it's important to understand that it was not just the digital data from the computer that we maintained he improperly destroyed, but it was also one full daughter ion, full daughter ion chart on a piece of evidence in this case that he said, "I didn't print out the chart," because he didn't see anything there, so he didn't see any need to print out the chart. We also raised the same issue about not recording testing that he had done with respect to his testing of his own blood where he produced charts but no work papers. He didn't write anything down about the conditions under which he had done those particular experiments. And he also testified that he had done experiments on old blood to determine old blood that he knew would have had EDTA in it to determine whether or not he could detect it after a period of time, and he admitted in his testimony that he had not written any of that down, had not made any record at all of that testing that he had done in connection with this case. And, of course, we also allege that he had not taken any of the steps that one might expect him to take to try and determine if there is EDTA on these evidence samples, how much EDTA would you expect to find eight months later under the conditions that each of these samples was subjected to. Now, I want to give a specific chronology of the information that we received from Dr. Whitehurst with respect to Agent Martz' performance in the Simpson case. And this is the main reason we want to call Agent Martz back to the stand. Apparently, during the time that Agent Martz was testifying in this case, Dr. Whitehurst was present at Quantico at the research lab where he thinks he had done some of the validation or the validation studies that Agent Martz used to present his results in this case. There was apparently allegations made by Dr. Bruce Budowle and Larry Presley and a doctor--I think it's a Dr. Dean Federoff who works at Quantico, that in their opinion, Agent Martz had committed perjury with respect to their validation study and whether he had done his own validation study. They were very upset about his testimony in the Simpson case. Dr. Whitehurst also was present during a comment made by a Dr. Mary Tungol, t-u-n-g-o-l, who is not connected I don't believe with the research lab, but is in their trace unit downtown I believe; and Dr. Tungol also had been watching Agent Martz' testimony and felt as well that he had committed perjury with respect to his statements about the technique that he used and who developed it and how it was developed and that sort of thing. Dr. Whitehurst indicated to these people that they probably ought to complain about that if they felt strongly about it. Now, we've been receiving documents kind of here and there in the last couple of days. Some of the documents that we've requested that we have not received are documents that may have been produced by Dr. Budowle and others at the FBI alleging Agent Martz not testifying truthfully in the Simpson case. In any event, on August 30th, 1995, a memo was written by K.W. Nimmich, N-I-M-M-I-C-H, who is the head of the research lab at Quantico or the acting head I believe to Mr. Ahlerich, A-H-L-E-R-I-C-H, who is the acting head of the entire lab. And in that memo, Mr. Nimmich recommends that Agent Martz be reprimanded for his testimony in the Simpson case based on two different grounds. The first ground that's cited in the memo cites a portion of the MAOP, which I assume is some sort of operating procedure regulation or something that governs notes made during investigations, and this letter recommending reprimand talks about that an agent's--quotes from that regulation:
"An agent's notes of precise character made to record his or her own findings must always be retained. Such notes include but are not limited to accounts, work papers, notes covering such matters as crime scene searches, laboratory examinations, fingerprint examinations. If a doubtful situation arises, resolve the question in favor of keeping the notes." And it points out that Agent Martz did not adequately preserve records, although it talks in the context of the underlying data that was not saved on the computer. The memo doesn't specifically reflect other records, records of the testing that we brought up that were not preserved at all, which in my view are more significant failures to comply with their regulation. The second area of concern of Mr. Nimmich is Agent Martz' testimony about the validation study that he did, vis-à-vis the validation study done by Quantico. The memo describes what Agent Martz did and what was done at Quantico in the context of Agent Martz in conducting the examination for EDTA, research chemist mark miller, who I assume is from the--from Quantico, working closely with Agent Martz in setting up the protocol to do this testing, that chemist mark miller conducted experiments to optimize the instrumental conditions for the analysis and that he worked closely with Agent Martz to do this. Further, a report, according to Mr. Nimmich, a report was sent to the chemistry toxicology unit, which is the unit that Agent Martz was the acting head of, stating what the protocol was, "This is our recommendation for the procedure that you should use, you Agent Martz should use in this case." The procedure itself was the procedure that hadn't been validated at Quantico. And he points out that Mr. Miller had worked alongside Agent Martz for two days while conducting this initial examination and the report--the memo goes on to conclude that Agent Martz was, quote, unquote, less than candid in his testimony about those issues. Now, I'm assuming that this memo got generated based on complaints that were made about Agent Martz by people other than Dr. Whitehurst. Dr. Whitehurst at that point in time had long since been in touch with the inspector general's office through the Department of Justice and had been providing them with information about the Simpson case as well as other cases that I'll talk about in a minute.
Mr. Blasier, with regard to that, you indicated that Dr. Whitehurst apparently over a long period of time had brought some of his concerns to the attention of the powers that be at the FBI and the other federal agencies. And the main memo, the first memo that you gave to me, what was the date of preparation? I could not determine that from looking at it.
I don't think there was a date on that. I think that was an earlier memo from `93 I believe. Wait a minute. I'm sorry.
I'm sorry. That one that refers to an agent's retirement in July of this year. So that's a fairly current memo.
And Mr. Robinson informs me he believes it's a 1995 memo because it refers to the pending retirement in July of 1995.
In any event, that memo is one I believe of a number of memos that Dr. Whitehurst has submitted to the inspector general's office in the last couple of years expressing his concerns about the activities of Agent Martz and a couple of other agents. And just as a bit of background, Dr. Whitehurst had--prior to going to the inspector general had tried to deal with these problems within the FBI and had not--in his view, they had not been satisfactorily dealt with. So he at this point contacted the inspector general. Now, Agent Martz made a response to the memo of Mr. Nimmich recommending that he be reprimanded, and that response which I just got today I believe, this is 9-15, this is Agent Martz' response of September 15, just a couple days ago to the memo from Mr. Nimmich recommending that he be reprimanded.
In fact, I think there are several memos that follow. Mr. Blasier has them all, but I made copies because I think the court will want them. In the transcript--end of the transcript, your Honor, of volume 2, there are attached a number of documents. I think the court will find two of the documents out of sequence, the August 30 memo I believe--
From Mr. Martz. Then we have subsequent to that a 19--September 18th memo and then a document that's a one-page routing slip with a comment. And those are for the court.
And in any event, this response by Agent Martz obviously is a response that's prepared as part of the Simpson case. These are memos that have all been generated since this became public. Anyway, Agent Martz in his response of just a couple of days ago makes the following statements, which I think are completely inconsistent with his testimony in this case. He says that--he acknowledges that--and he refers to himself in the third person. He acknowledges that SSA Roger Martz of the chemistry toxicology unit--various efforts at methods development were performed by members of the chemistry toxicology unit of the FBI.
And in that memo, he says that various efforts at methods development were performed by members of the chemistry toxicology unit of the FBI laboratory and the forensic science research unit of FSRTC. In other words, Quantico was working with Agent Martz and chemistry toxicology to develop these methods. He states further on down SSA Martz readily acknowledges having worked with specific members of the FSRU on specific methods development efforts, but was not specifically asked about this assistance and cooperative effort, and he states although SSA Martz certainly acknowledges lengthy interactions and discussions about these efforts, he does not recall having received a specific written report containing specific recommendations of SRU personnel. Now, in his testimony in this case at page 38711, line 10, I asked him, Agent Martz: "Agent Martz, did you review the validation materials that Quantico prepared for you? "Answer: No, I did not. They not prepared for me." And later on at page 38712, line 16, Agent Martz indicated: "Quantico's testing was done to determine whether or not a procedure could be developed to give to another laboratory to do the testing ." And then I asked him whether their validation study was for the purpose of this case, and his testimony was, "You'd have to ask them." And then I asked: "You didn't ask them," and he stated: "No." Then I asked him whether he had looked at the validation study, and he testified: "I never looked at it, no." And it's our position that that testimony is simply not true, and that's one of the areas that we want to ask Agent Martz questions about.
And if it wasn't clear, Nimmich's memo points out that Quantico was working side by side with Agent Martz and Quantico developed the validation procedure that Martz used but took credit for on his own. Now, there was another case, the World Trade Center case, that will tie into the Simpson case in a second. The World Trade Center case was a bombing, of course, that took place in New York in 1993. Dr. Whitehurst and Special Agent Burmeister, who is also an expert in explosive residue analysis, were assigned to work on that case in the field in New York. Agent Martz was also working on the case in the laboratory in Washington. It became important to determine whether among the debris at the World Trade Center, they could find a compound called urea nitrate, which is a compound that is used in explosives, and that would have been helpful to the Prosecution's case had they found that compound. Agent Martz attempted to develop a protocol to identify the presence of urea nitrate, and he developed a protocol that involved mass spectrometry that he believed if you saw the appearance of one particular peak, you could then conclude that the material tested was consistent with the presence of urea nitrate. Dr. Whitehurst and Agent Burmeister were very concerned that this particular protocol did not do what Agent Martz claimed that it would do, that it would not identify that particular compound, that it could not distinguish between urea nitrate. Because of that concern, Dr. Whitehurst and Agent Burmeister prepared what amounts to a blind test. They prepared a sample of urine that was allowed to evaporate and acetone was added--
--and they prepared a second sample of fertilizer that just had nitrate in it, and they submitted both of those samples to Agent Martz, and I believe there was another agent, Thurman, working on the case with Agent Martz in order to test whether Agent Martz' protocol would identify the presence of urea nitrate as opposed to just the individual compounds. Well, when the two items were tested, Agent Martz took the position that his test worked, he found urea nitrate and we can go forward with further testing. It was at that point that agent Whitehurst, Dr. Whitehurst and Mr. Burmeister told him that no, what we had provided was just urea and just nitrate, your test doesn't work, it cannot distinguish between the compounds that would help the Prosecution's case and other chemicals. And, incidentally, it's important to understand that in the World Trade Center bombing case, there were broken sewage lines that caused a lot of human waste, urine, et cetera, to be in the area of the bombing. There also--
I know in the location of the suspects, there were other containers of this. Okay. I understand the significance.
Okay. And also--but there was also nitrate was a very common thing that might have been innocently there at the crime scene. So they had a long discussion and argument about whether Agent Martz' protocol should be used, and Dr. Whitehurst indicated at the end of that discussion that they were under the impression that Agent Martz agreed that this was--this was not going to be satisfactory to use in the case and was not going to be used. It was sometime later that the reports that the FBI intended to use in that case came through the mill and they were signed off by Agent Martz, and they took the position that this test that agent--Dr. Whitehurst and Mr. Burmeister had thought they convinced Agent Martz was not an adequate test. The report had that test in there, had results based on that test, did not provide information to the effect that--by the way, these other things--these other innocent things that are probably all over the place there would give you the same signals as what we got here. Dr. Whitehurst complained about that, and eventually the reports were given to Dr. Whitehurst and Agent Burmeister to correct, to make them accurate if you will. Now, we have asked for the reports that were originally submitted after they had the discussion with Agent Martz and we've asked for what the corrected reports are, and we have not received those as of yet. I don't know whether there's an objection to those particular reports, but we don't have those yet, so I don't know what the exact language was. Now, as a result of Agent Martz' activity in the World Trade Center case, Dr. Whitehurst made a number of complaints, and I think you've reviewed part of the litany of the complaints that were made by Dr. Whitehurst.
We know that Agent Martz was aware of the fact that complaints had been made and that he was under investigation for the substance of those complaints at the time that he testified in this case in July. One of the reasons we know that is that we have a young man working for us, Gary Randa, who is the son of Cathy Randa, who, among other things, has the responsibility of escorting witnesses from the airport to their hotels or the court as necessary. Mr. Randa picked up Agent Martz in July prior to his testimony in this case. As they were driving from the airport to the hotel, Agent Martz--they were making some small talk--Agent Martz told Mr. Randa about his family, and then Agent Martz started to make some comments about Dr. Whitehurst. He expressed his concern that Dr. Whitehurst not talk before he was done testifying in the Simpson case. Now, it's our supposition that Mr. Martz didn't realize that Gary Randa was working for the Defense. In any event, there was clear conversation by Agent Martz that he was concerned about the Whitehurst allegations coming up, becoming public at the time he testified. It's our position that--oh, by the way, and the very next time that Mr. Randa picked up Agent Martz to go somewhere, Agent Martz didn't say hardly anything to him. Mr. Randa has described his demeanor completely changed, that he did not say anything about anything of significance. It's our position that we should be allowed to recall Agent Martz to probe into his bias and his state of mind at the time he testified in this case, vis-à-vis, his fear, his knowledge that he was being investigated, his fear that allegations might become public. Obviously that's going to result in certain pressures on him to testify a particular way. These are all issues that had I known about them at the time, I think it certainly would have been proper to bring out to the jury that these were things that might affect his credibility, these are things that would show bias and interest on his part. Now, another area, Agent Martz, when he testified in this case, was the acting chief of that particular section. He had been appointed acting chief I think about 60 or 70 days before his testimony in the Simpson case. Within a week--I believe it was within a week after his testimony in the Simpson case, he was demoted. He was no longer the acting chief. He was back to the head of the chemistry toxicology unit. We maintain that certainly there is a reasonable inference that if Agent Martz was so concerned about the Whitehurst allegations becoming public, that he would express it to Mr. Randa, that he also would have expressed it to the Prosecution in this case and we should have been--if that had happened, that we should have been advised of that as potentially Brady material. I don't know that that's true or not, but I think that's one inference that it is reasonable to argue. Now, with respect to--so I guess if I had to sum up why we want to recall Agent Martz, it would be to show the violations of their own regulations with respect to record keeping, the inaccuracy of his testimony about the validation study done at Quantico and his bias and interest at the time that he testified because of the Whitehurst allegations that were pending against him. Now, one other area that we want to go into with Agent Martz concerns the World Trade Center case. If you'll recall, the Prosecution spent most of their--much of their time examining Dr. Rieders about the sconce case. And one of the allegations against Dr. Rieders that was presented to this jury was to the effect that Dr. Rieders had made a determination that oleander might be present in tissue samples based on inadequate tests. In other words, he had not performed enough tests to reach that conclusion. He should have done more testing. That was bad. Therefore, the jury should take that as some indication of lack of credibility or competence in this case. It's our position that the World Trade Center situation, the World Trade Center case, where he issued a report or signed off on a report that made certain representations about the presence of urea nitrate based on inadequate testing, that that's just like the sconce case and that we ought to be able to cross-examine Agent Martz about that specific case as it relates to the credibility of his testimony about the testing that he did in this case.
And I might also point out that I don't think we got a--what is described as a report to Martz about the results of the validation study at Quantico. We got the validation study itself, but it was all handwritten papers. I don't believe there was anything in there that fits that description. Now, as to agent Whitehurst, we would propose to call him after Agent Martz to testify and, again, it would depend on what Agent Martz testified to about the various areas that we want to go into with him. That would determine certainly what we could go into with Dr. Whitehurst about those specific areas. If we felt Agent Martz was untruthful or inconsistent with statements that may have been made in Dr. Whitehurst's presence, then presumably that would be one area of examination of Dr. Whitehurst. And we would also propose calling Dr. Whitehurst, who has had extensive contact with Agent Martz, worked with him on many cases, to testify with respect to Agent Martz' character for honesty and veracity, the existence of any bias, interest or motive, the categories I talked about at the beginning, slanting research, slanting his position to favor the Prosecution and hurt the Defense. There is one phrase that Dr. Whitehurst has heard Agent Martz use on many occasions, and that is, "It's good enough for me," and that phrase is used by Agent Martz in the context of when people are critical of his methodology saying, you know, you got to do more than that, this is not adequate, you got to be--you got to be more precise than this, his response is, "It's good enough for me."
Now, the memos that I--some other memos that we got today, which you may not have, you probably don't have in my view are I would describe them as, "Let's circle the wagon" memos. There's a memo from Mr. Nimmich to Mr. Ahlerich dated yesterday, the 18th, which states that the use of the terminology in the earlier memo, less than candid, was meant to imply a posture of enhanced self-importance rather than a misstatement of factual data. He also recommends, however, in that--in this later memo that we feel was written for the purpose of trying to keep Agent Martz from being recalled in this case and trying to minimize the seriousness of his testimony in this case or that his testimony, if you will, state that the manner in which Special Agent Martz described these events during his testimony should be discussed and clarified for future testimony.
Your Honor, did the court--I gave Mr. Blasier a copy that was intended for the court of that and the subsequent memo. I'm not sure that was given to the court.
You had--I gave you a copy in discovery, but I just--what I handed to you was intended for the court because you already have seen it.
This is the September 18th, yesterday's memo. And I'm also presenting to you a one-page memo. Actually looks like a circulation sheet where they just write the note and you send it around, from Mr. Ahlerich directed to Randy, who is Randy Murch. I'm not sure exactly what his title is. It--in any event--what this document says: "In any event, I view this as a performance issue, not misconduct. Please give me your recommendations." And that I'm assuming is in--is related to Agent Martz' testimony in this case--
--and related to the recommendation that Agent Martz be reprimanded for his testimony. Now, we have asked for a number of materials in our subpoenas including personnel records of Agent Martz. We've been provided with partial documents. Some of the documents we have have huge black areas in them where lines have been blacked out. I, of course, don't know what's in those parts of the documents, but we've been able to piece together this whole chronology from the information that we have been provided both by Dr. Whitehurst and now through the FBI and the inspector general's office. It's our position that this is very relevant important testimony. It can be done quickly. We would propose that we call Agent Martz to testify in the limited areas that I expressed to you and that we then be allowed to call Dr. Whitehurst to testify in the broader areas as well as to rebut anything that Agent Martz might testify to that would be proper for him to comment on. I don't think it will be tremendously time consuming. I've broken it into fairly logical groups. And that would be our proposal with respect to both Agent Martz, who we would call first obviously, and Dr. Whitehurst. May I have a moment?
I think it's important to know that the World Trade Center, that Agent Martz or the report that he signed off on was pulled by the FBI and changed and corrected by Dr. Whitehurst to make it more accurate, more complete. And we would argue that during the course--during the time of his testimony in this case, Agent Martz was presumably up for being appointed the chief rather than acting chief, that he was a candidate for that promotion and he knew that agent--Dr. Whitehurst had made these allegations against him and that that created a motive for Agent Martz to cover up any mistakes that he made in this case, to also succumb to any pressure that might be there to explain the exculpatory nature of the results in this case just as he had done in the World Trade Center case. So we would offer both high profile cases--and I might point out also that the World Trade Center case, we have a lot of detailed information on. We've only been able to ask him specific questions about the World Trade Center case, the moody case in Alabama and the Simpson case in effect. There are a lot of other high profile cases that we know about that we haven't been allowed to ask him questions about that he is not allowed to talk about, that he is not allowed to identify to us. So from what we know, we have the World Trade Center case, which has significant importance, vis-à-vis, the Simpson case. Thank you.
Thank you, your Honor. Your Honor, if it didn't ruin my weekend, actually speaking to Dr. Whitehurst I found to be an interesting experience, and I view him as a sad figure, a tragic figure in my mind. He is a man who has a very difficult time moving from his concepts of pure science to the field of applied science in forensic settings. And let me give you an example. I don't know if the court's read the transcripts, but let me give you a couple of examples. He is going to law school. And if the court looks at my examination near the end of the second transcript, you'll find out that the reason he is going to law school--he's in the fourth year at Georgetown law school--is because he's searching for answers. He doesn't understand what he can say as an expert, when he should say things as an expert and he doesn't understand, and at one point, he asked to have an opportunity to speak with me when this case is over for me to give him the answers. Very tragic, your Honor, because obviously I don't have the answers. But the real answer that I think is applicable is that pure science and forensic science are not coexistent in their approaches. What Dr. Whitehurst doesn't understand is that if an agent has a case involving let's say a bomb and you have a suspect at whose house you find some fertilizer that could be used to make up a bomb, that it's important for the purposes of either pursuing that suspect or excluding that suspect to know whether the bomb in question has materials consistent with the fertilizer that's found. And so the report that is issued which says it's consistent with whatever the substance is, let's say urea nitrate--by the way, Mr. Blasier is wrong. Mr. Martz did not do the testing on the urea nitrate. It was done by a lab technician, Mr. Laswell. Mr. Martz signs off as his supervisor regarding that result. But the point is that what Dr. Whitehurst believes needs to be said is that whenever you say it's consistent with something that may be inculpatory, it's mandatory that the reports say also what it is consistent with which may be exculpatory. And Dr. Whitehurst tells us it is well understood by scientists that if you say something is consistent with, you're not saying it is that something that it only is consistent with being that, but it can be other things. The memo I asked the court to read, the 26-page memo from Dr. Whitehurst tells the court how Dr. Whitehurst uses terms, "Fabrication of testimony," "Perjured testimony," "Fraud on" Dr. Whitehurst calls the jury, "The customer." That's in the transcript in the area where I examined him. He's asked what his job is for "The customer," who is "The customer," the jury, the jury needs to have all of the facts. Well, his problem is, he doesn't understand that in an adversarial system, the jury will get all of the facts through cross-examination. He acknowledges the cases are not tried on reports and that a report in no way is going to be complete as to all possibilities, but for that agent in the field who needs to know, hey, is there something further to pursue with this person or to exclude this person, I need to know, is this consistent with--and by the way, there is nothing that has been identified from Dr. Whitehurst that says that--in fact, it was never said in the urea nitrate tests by Mr. Laswell in the reports signed off that it was urea nitrate to the exclusion of all others. Now, I analogized Dr. Whitehurst's confusion to the confusion in an area where I think I do have a little bit of expertise, and that is forensic psychiatry. This court I'm sure is well aware that for years and years and years, the experts in mental health, psychiatrists and psychologists have argued that when they have to evaluate people for their mental well-being and then come into a courtroom and apply what the law is concerned about which has to do with mental states, separate from the psychiatric evaluation of any psychiatric condition, things get twisted and perverted, and they have a very hard time understanding this. That is Dr. Whitehurst, bottom line. What he knows about the Simpson case, he has told us. He has not one iota of basis on which to question the bottom line from Roger Martz that those stains on the gate, those stains on the socks did not come from EDTA preserved blood. If I may briefly, it's one page tells you everything that he can tell you about what is really important. Did those stains come from EDTA preserved blood? Page 281 of the transcript starting on line 8, my question, line 4: "Do you consider your Ph.D. in quantum chemistry to qualify you in the analysis of biological fluids for the presence of EDTA? "No. "Do you consider yourself to have the qualifications based upon anything, education, experience or training to allow you to undertake an analysis of biological fluids for the presence of EDTA? "No. "Have you heard anyone say that Mr. Martz' ultimate conclusions in the Simpson case that stains from the gate and from the socks did not come from EDTA preserved blood were wrong? "No. "Do you have any basis on which to say that Agent Martz' testimony that the stains from the gate and from the socks did not come from EDTA preserved blood are wrong? "I have no such data, sir." That's what he knows about what is in issue here.
Now, what's really relevant I think, your Honor, is if the Defense really wants to raise the issue of the EDTA preserved blood source, why haven't they brought in an independent expert properly qualified to tell the jury, "I examined the stains with the appropriate methodology, and unlike Agent Martz, I conclude--using all the appropriate methodologies that Dr. Rieders claimed should have been used and weren't used, I conclude these are from EDTA preserved blood." That's really the issue. But instead of bringing in a direct attack, which they can't bring--because Martz is right. Instead of bringing a direct attack, they're trying to do the end around, and all the end around is, when you read all these memos of Martz and Nimmich and Ahlerich and so forth, it's a question of who gets credit, who gets credit for the validation studies. Not that the validation studies are wrong, not that Martz is wrong. Who gets the credit. In a bureaucracy, we have people that sometimes are more concerned with who gets the credit than the bottom line of what is the answer. On the issue of what is the answer, there is no dispute. There is no dispute and Dr. Whitehurst offers not one iota of evidence. He says he is not qualified to offer one iota of evidence.
And incidentally, if we are talking about habit and custom of changing reports, that's not what you're going to find. When you read this transcript, your Honor, no. 1, he's got one report, one report that he can remember specifically where somebody came in and yellowed out what they thought should not be in the report. And this gets back to the you just say consistent with or do you say consistent with this and a zillion other things. One report. You will find that much of what he bases his impressions on is based upon hearsay, both first level and multiple levels of hearsay and not from Martz. What you will find, your Honor, with Dr. Whitehurst is that he acknowledges that the same standard that he would apply to an expert witness called by the government at trial about being required to say not only what it is consistent with that points to guilt, but point to those things consistent with innocence he would apply to a Defense expert who is called in a criminal trial. And I think the court can probably figure out that if we get Dr. Whitehurst on the stand--and so much is his interpretation of things. What we will go into and show is that what Dr. Baden did. The shoes, remember the defect on the shoe consistent with a knife? Didn't bother saying consistent with things that might point to guilt. Dr. Gerdes, remember those five errors that Dr. Gerdes attributed his analysis of the LAPD lab? Through Mr. Clarke's quite expert cross-examination, we learn, wait a minute, there were some innocent explanations that, in fact, were the more logical explanations that Dr. Gerdes just said didn't exist. Never mentioned that on direct. Those people, under the terms used by Dr. Whitehurst, have perpetrated a fraud on the customer, the jury. That's his thinking. Now, with respect to--well, let me give you another example of where Dr. Whitehurst is coming from. In the memo that we asked you to read, near the end, about 23, 24, 25, he talks about Mr. Free, the present FBI director. Mr. Free was the attorney in the first World Trade Center case.
There's a discussion also about his argument to the jury about the colors of paint that were found at the suspect's home.
And the argument was from Mr. Free to the jury that, "Gee, what an amazing deal. They find all these colors of paint, every color of paint, but they don't find black which happens to be the color that's associated with the bomb." And what is Dr. Whitehurst's comment to that? That was a fabrication to the jury by Mr. Free. Why? Because obviously they didn't find every imaginable color of paint that exists in the universe. To say that Dr. Whitehurst is a literal thinker, a very concrete thinker and a very troubled person as a human being, a scientist, well intention, sincere, honest in his belief, I acknowledge all, but completely out of his element as to what is the true application in forensic settings of science. With respect to his knowledge of Mr. Martz and his qualifications, there is no question that he believes Agent Martz is not qualified in explosive residue analysis. And the reason, as you will read in the transcript, your Honor, because he has not completed the exact identical protocol that exists in the materials analysis unit, which is the unit that is the unit within which Dr. Whitehurst does his work. He has not done that protocol. I have a memo that I'm going to ask the court to read where Agent Martz spells out his training and experience to do explosive residue analysis. But Dr. Whitehurst takes the point of view that because he believes Martz is unqualified when Martz gets on the witness stand and testifies as to any conclusion, Martz is perjuring himself, Martz is fabricating testimony for the jury. And then I asked Dr. Whitehurst during my portion of the questioning, "Well, doctor, can you acknowledge the possibility that someone could honestly believe they were an expert in the field even if you didn't think they were, that they honestly believed they were?" He acknowledged that that was possible and that a person could honestly believe as an expert in the testimony that was given on the subject, that was possible. "If somebody did that, if Mr. Martz felt that way, honestly believed he was qualified even though you didn't and he honestly gave answers that he believed in, sir, in your judgment, is that perjury, is that fabrication? "No, that is not."
Now, I don't think we're here to try the world trade or the moody case or really anything more than what is on the court's plate as the court presently has it. And when you get to the bottom line of all of Dr. Whitehurst's material that he can offer, he can offer nothing on Simpson. There is no habit and custom. Gee, habit and custom? Here, you've got this trail of paperwork that shows that the FBI was going to recommend some kind of disciplinary action against Mr. Martz. Martz gets an opportunity to offer his explanation. That explanation is reviewed and assessed. And when you get down to it--and you have to read all the memos, these new ones that we've just given the court--you find that it's all semantics. And who gets the credit? This is collateral to the interest degree. What would be significant? Bring in an expert to say these are not EDTA preserved blood source stains. That's not what they're going to do. Now, with respect to--if I can just have a moment, take a look at some of my notes. One other thing, and I'm going to ask the court to read this. But to give you a flavor with respect to Dr. Whitehurst and the kind of reports that he believes are necessary--
Incidentally, while I recall, all of the memos involving Martz and this issue start with--on the August 30th memo that his testimony was reviewed. It is not like it says attached as a transcript of SA Martz' testimony from Los Angeles on September--on July 25th and 26th, `95. It is not like people are going on hearsay or whatever. So it is apparently a review based upon what he actually said, and then the things get flushed out. What I wanted the court to see from a memo of Dr. Whitehurst as to the kind of report that he thinks needs to be written, he talks about DNA reports that the FBI laboratory reports out. And it's one paragraph, your Honor, a one-paragraph memo. DNA profile, forget loci, D2S44, D17S79, D1S7 and DS4139 were developed from HAE, H-A-E, capitalized, roman numeral III, digested high molecular weight, DNA extracted from specimens, capital Q1, capital K1 and capital Q2. Based on these results, the DNA profiles from Q1 match K2.
The probability of selecting an unrelated individual at random from the population having a DNA profile matching the K2 sample is approximately one in 10 million. Then this is what Dr. Whitehurst adds as his comment on this. "That passage means absolutely nothing to me. I hold a BS degree in chemistry from East Carolina University, a Ph.D. in chemistry from Duke University--" and may I add, it is in quantum chemistry, your Honor, not related to biological analysis like Martz is doing.
"I was for two years, before entering on duty with the FBI, at the Robert Welch research fellowship conducting research in one of the most complex areas of theoretical physical chemistry. I should understand that passage, and yet hundreds upon hundreds of DNA cases leave the FBI laboratory yearly utilizing just such dictate. I'm sure that personnel in FBI field offices in the United States Attorney's office do not dictate the format of DNA reports. They would not dare be so stupid." Your Honor, I hate to admit it; I understand what that paragraph says. And I have no degrees in chemistry, but as a lawyer working in forensic science areas, this is meaningful. And I would defer to people I'm sure of much greater expertise than I sitting across from the table and those people in our office who have presented this area of the scientific evidence who have I think similar expertise. If I can understand it, it's because I work in a forensic setting where I have to look at all of the evidence, and these things are easily understood. So you have to put Dr. Whitehurst into the very unusual perspective that he himself has painted a man who would go to four years of law school at a first rate law school and I'm sure an expensive law school, Georgetown, to find answers that he still cannot find. Now--one moment if I could, please your, Honor.
Also, your Honor, because the Defense would suggest that--may I put this on the railing? Because the Defense would suggest through testimony from Dr. Whitehurst that the FBI is not interested in the truth, but only interested in convicting, I would go into page 282, I thought it might be worthwhile: "Dr. Whitehurst, do you know Mr. Bodziak? Do you know Mr. Deedrick?" Because he had been asked I think by Mr. Blasier questions regarding the reputation of Mr. Martz. "Mr. Bodziak, do you know him? "Yes, I do. "Have you ever raised any concerns about the quality of the scientific work performed by either of those two gentlemen?" I should back up. "Mr. Deedrick, do you know him? "Yes, I do. "Mr. Bodziak, do you know him? "Yes, I do.
"Have you ever raised any concerns about the quality of the scientific work performed by either of those two gentlemen? "Not at all. "And have you heard of any complaints raised about the quality of the scientific work performed by either such gentlemen? "Not at all. "And have you heard, on the other hand, favorable reviews of the quality of the scientific work by either--performed by either of those individuals? "High praise, sir. "And have you heard their reputation in the scientific community regarding their quality as scientists in their areas? "Yes, I have. "And what is that? "Only high praise is all I've heard." If Dr. Whitehurst is allowed to testify to suggest that the FBI is not interested in the truth, I fully expect to cross-examine him regarding his knowledge of the reputations of two of the FBI's finest scientists who have given this jury the benefit of their expertise. Now, your Honor, on the issue of the Rieders'--
--chronology--and I just wanted to frame it in a way I think is most helpful. I don't know if the court will remember this, but I kind of remember it because I think it had just been I think the Friday before the brunt of some difficult examination with Dr. Baden, and I think Miss Clark then had the benefit of coming up on Monday with Dr. Rieders part two, and in her efforts to question Dr. Rieders about sconce, I recall quite vividly the court, with no disrespect intended, showing some degree of irritation with the extent of this questioning, saying to Miss Clark, "When are we going to try the Simpson case?" And, your Honor, that's what this comes back to. If you really have something to put on, you don't put on trying the moody or the World Trade Center case as to an analysis which was not done by Martz. He only signs off on the record. I'm sorry. Mr.--Mr. Robinson helps me out by pointing out that, of course, it is in a completely different area. Dr. Rieders at least is supposed to be qualified in the area of the oleandrin testing which should in our judgment have been done by the very technique which Martz used in the Simpson case.
What we were really trying to show with sconce is that Dr. Rieders was out of touch with modern scientific techniques, that what he used were techniques of the 60's--I'm trying to think--thin layer chromatography, infrared spectrometry--the third test, the title which escapes me at the moment, but that he used these to say that this was not detection of oleandrin, but identification of oleandrin. And I will tell this court right now this is not going to be any short hearing if the court allows either of these gentlemen to testify because we will bring Dr. Henyon back. Dr. Henyon has reviewed the EDTA material. Dr. Henyon says Martz' ultimate conclusion is correct. Those stains on the gate, those stains on the socks did not come from EDTA preserved blood. He will also tell this court and jury that Dr. Rieders' use of the techniques he used in 1989 on--1988 on the sconce case were out of date for the purpose of identification. They can be used as screening techniques to see whether you may have the substance, but not for identification. Now, what's interesting to me is, in the Simpson case, what is Martz saying? Martz is not saying that the results he got from the stains do not include EDTA. He is saying that it is possible there is EDTA in the stains. And I think the court has a vivid memory of his conclusion in that regard. But what he said was, when you run EDTA preserved blood through the mass spec and you look at the peak heights for the EDTA preserved blood--
--it's off the scale. And Dr. Henyon says that conclusion based from that comparison is sound scientifically and that the conclusion it shows, these were not EDTA preserved stains sources--source stains is a reliable and valid scientific conclusion. But if Martz comes back in--the court thinks that Martz can testify about who should get credit for what and you have all these memos trying to sort it out and if Martz can be questioned about world trade or any of these other cases that he has done, this will not be short. There will be rebuttal by the Prosecution with Dr. Henyon. And I submit to the court this is collateral to the key issue. The Defense has perfect ability to bring in an expert to tell this jury it ain't there. That is the evidence. To say this is not EDTA preserved blood as a source for the stains is not reliable and valid. You bring somebody in, do the tests, come in, give the opinion. That's what's central. This is collateral to, I need not say, to a jury that wants to start deliberating on this case. Now, one of the memos the court has, I think it's the last memo in the transcript, was provided the day--Monday I believe although I think it was prepared Sunday night as I recall, a clarification of Dr. Whitehurst's views of the qualifications of Mr. Martz and whether or not he has misrepresented things. First of all, when the court reads the transcript, it is very important to see how Dr. Whitehurst also believes that Mr. Martz has acknowledged he is not qualified in explosive residue analysis. What the court will find is Dr. Whitehurst tells us there was a meeting attended by seven people, some from the MAU, M-A-U, not M-A-W, materials analysis unit, some from there, some from chemical toxicology, Martz' people, Martz and Laswell. And the question was asked I think by Mr. Kearney, who is identified--I think he was the section chief of the scientific section. Mr. Corby I believe was the unit chief of materials analysis. The question was posed, how many here have basically completed the protocol and training formulated by the materials analysis unit, for example, explosive residue analysis. Dr. Whitehurst raised his hand. His protégé, his student, Dr. Burmeister raised his hand and I believe Mr. Corby raised his hand. What Dr. Whitehurst said he cannot tell us is whether when there was a consensus reached that Martz was not qualified, what--and that Martz said he wasn't qualified. What Martz was saying was, "I am not qualified based upon the questions you ask." That is--"I have not gone through that program." But as I will give the court, I believe in additional memos we have received, Martz explains his training. He's been doing smokeless powder cases. He's gotten training--he's helped the Australian government in explosive residue analysis cases. Again, is Dr. Whitehurst sincere in his belief that Mr. Martz is not qualified? Absolutely. But as Dr. Whitehurst has to acknowledge, you know, people come into court and they're called as expert witnesses and the attorney opposing that witness raises an objection on lack of foundation. Judges have to decide is this person sufficiently qualified to be able to testify, testify in front of the jury, leaving the ultimate conclusion of weight of the testimony to weight of such an expert to the jury for consideration. As the court well knows, it's a 405 preliminary fact in California. In other words, the proponent has to establish by preponderance of the evidence to the satisfaction of the Judge that the expert is qualified if there's an objection raised to the expertise. So Dr. Whitehurst understands that people can actually come into court and testify as experts who he doesn't think are qualified because the criteria he uses in explosive residue analysis--and that's the only area that's really in question, the explosive residue analysis, the criteria he uses and the criteria the court uses, they're two different things, and that's why when you see his memo, that 26-page memo and he uses terms like "Fabrication" and "Fraud" on the jury and "Perjured testimony," it is the state of mind of a man who is troubled. He is troubled by these questions that he has been asking himself. He takes to heart what the FBI--I think he told us in sessions the previous director had a memo, you will rule out corruption, fraud, so forth. He takes to heart that memo as well we would hope all people do. But things kind of get lost in the translation. And that's why I viewed him as a very tragic figure. I enjoyed talking with him. He's a very bright man, very sincere man. He has nothing to offer on this case, and for the same reason, this area that Mr. Blasier suggests Mr. Martz be cross-examined about further is not an appropriate area. The data--oh, kind of the last thing. Mr. Randa allegedly heard a statement from Mr. Martz. Both Mr. Yochelson and I have questioned Mr. Martz about that last night by telephone. No such conversation took place. Mr. Randa obviously will be vigorously cross-examined on facts like, no. 1, he never reported this to anybody, and allegedly it's only now come to light because Whitehurst has come to light. Yet in an interview that Mr. Yochelson conducted with an investigator of our office this afternoon, earlier this afternoon with Mr. Randa, Mr. Randa was asking probing questions trying to find out some information on a subject that he then claimed meant nothing to him. So he reported nothing. This information if it ever existed was known by the Defense. I don't think it existed because I think the evidence will show by the weight of the evidence that no such statement would have been made by Mr. Martz who did know who was picking him up. I mean Mr. Martz understands who is from the Prosecution and who is from the Defense. Mr. Martz is going to be talking about Dr. Whitehurst to Mr. Randa, the son of Mr. Simpson's personal assistant or executive assistant. We will be litigating all of this in front of the jury, your Honor, and it doesn't go to the core issue. The core issue is what's the source of those stains. May I have just a moment to speak with my colleagues?
Let me leave with the interesting observation, to me anyway. That in this case, who is the person who is saying it definitely is EDTA preserved blood? Who is the person interpreting this stuff? Is it Mr. Martz? No. Mr. Martz is saying hey, there could be EDTA there. We got Dr. Rieders doing that. Let's focus on that issue, not on who's a qualified explosive residue analyst, not on who gets credit for validation studies that everybody accepts were good studies with good results and with honest opinions accurately provided. That's what this case should be about. Everything else is 352.
I ask the court--I urge the court not to allow Mr. Martz to be recalled, not to allow Dr. Whitehurst to be called, not to allow Mr. Randa to be called and cross-examined, not to allow us to bring Dr. Henyon back to go into these areas, not to have the kind of mini trial that nobody wants if one is searching for the truth. I would be more than happy to make certain that if the Defense wanted to reopen their case in chief and bring somebody in who did the analysis on the stains to say that they came to a reasonable scientific certainty from EDTA preserved blood, I believe I could prevail even on Miss Clark to say let's hear it. That's important testimony. I don't think we'll hear that. We shouldn't hear the collateral stuff either. Thank you, your Honor.
Yes, briefly, your Honor. It absolutely amazes me that statement will be made about Mr. Randa. And what they asked Agent Martz is, "Did you say that to Gary Randa?" Apparently they didn't ask the question, "Were you concerned about the fact that you were under investigation at the time you testified?"
That's the issue. It's not whether he said something to Gary Randa. The fact that he said something to Gary Randa just triggers--tells us that he was concerned. And I have to infer from what Mr. Kelberg just said, they didn't ask him that whether he knew he was under investigation and whether he was concerned about that at the time of his testimony.
We did ask him, your Honor. I just didn't make reference perhaps to it in my statement.
Well, we still don't know whether he admits he was under investigation and was concerned about that.
I also--I find it flabbergasting on Sunday and again today with Mr. Kelberg apparently having taken the position that with material that might be exculpatory that a scientist might put into a report that might help the Defense shouldn't be there and the reason it shouldn't be there is because a Defense attorney in a trial should be able to ask that question.
Now, that's not the way it works. Most cases don't go to trial. Most cases are settled. I would not put an expert--I would not call an FBI expert and start doing discovery on the stand in front of a jury to ask them, "Well, what else do you know?" That's just not the way it works. Brady requires that exculpatory material be made available, not that it be suppressed, not that we have to go hunt for it, not that we have to ask questions in front of a jury about it not knowing what we're going to find. I think this particular issue as to whether Dr. Whitehurst is a sad man or not and whether he's being unreasonable or not is very easy to solve. Mr. Cohen has the World Trade Center report that was prepared, the corrected report that was prepared by Dr. Whitehurst and he has the returned copy that was sent back to Dr. Whitehurst to say take these things out of this report. And I understand the FBI has just given us permission to allow the court to review that report in camera so you can see--the court can see what it is the FBI wanted him to take out of his report to determine whether this is suppression of exculpatory material or not.
The question that Dr. Whitehurst has--and he talked to me about it as well--his question as a scientist--and by the way, he is very proud of being a member of the FBI. He is very proud of that laboratory. He is not maintaining that they are all crooks. His complaints have been with very few people, and he is a very dedicated man and very proud of his law enforcement role. But the question that he has is, as a scientist, "Why do I have to slant my reports, why do I have to leave things out because it might help one side or the other?" Those are the questions that he is searching answers for and have not gotten those answers within the FBI. That's the question that he has. I would submit to you that the issues as to Agent Martz are highly probative. Mr. Kelberg can make all the statements he wants about other ways we may have pursued this case. That's totally irrelevant and to whether we have a right to recall Agent Martz and whether we have a right to call Dr. Whitehurst.
All right. Thank you, counsel. All right. I have one other question before I make a ruling on this matter. I have received from the United States Attorney's office a package of documents that appear to be segregated into different types, and apparently I'm being asked to review these as well. No?
There are two categories of documents there, documents that have been produced to counsel. The court--those are very few in number and the court can easily review those. The larger percentage of those documents are documents which we will ask the court to review in the event that the court determines that agent Whitehurst can be called as a witness. If the court determines that agent Whitehurst will not be called, I don't believe it's necessary for the court to conduct an in camera examination of those documents.
I would suggest that the court should review any documents that might be relevant to this case before you make a decision.
Your Honor, could I give the court additional--I think I--perhaps just the one additional memorandum?
No. No. This is the one I read from the DNA. It's a memo from Dr. Whitehurst to a person by the name of Strohl, S-T-R-O-H-L.
And the court may think that this is the same document as one that is attached to the back of the second transcript. There are two such memos. They are different. And the one that I'm giving your clerk at the moment, your Honor, is the one that refers to the DNA. The one that you have at the end of the transcript does not.
Your Honor, we also request that Agent Martz be directed to come to California so that if we are permitted to call him, we can do that tomorrow.
Your Honor, I am not aware. I had asked Mr. Martz I believe yesterday when I talked with him to check on evening flight schedules, and the morning flight schedule I believe gets him here at about 11:00 o'clock, assuming there are no delays on either end. So that I know for sure.
Okay. I will direct that he appear here in Los Angeles tomorrow. Will you communicate that with your witness coordinator?
All right. All right. Counsel, I'm going to take the matter under submission, take the transcripts home today, read it, read all the other materials that were submitted to me with the exception of the additional reports that have now been submitted, I'm going to reread those, read the transcripts and I'll rule tomorrow morning. All right. Thank you, counsel. We're in recess until 9:00 o'clock.
There is one phrase that Dr. Whitehurst has heard Agent Martz use on many occasions, and that is, 'It's good enough for me,' and that phrase is used by Agent Martz in the context of when people are critical of his methodology saying, you know, you got to do more than that, this is not adequate, you got to be more precise than this, his response is, 'It's good enough for me.'
'Do you have any basis on which to say that Agent Martz' testimony that the stains from the gate and from the socks did not come from EDTA preserved blood are wrong?' 'I have no such data, sir.'
The memo goes on to conclude that Agent Martz was, quote, unquote, less than candid in his testimony about those issues.
Instead of bringing a direct attack, which they can't bring — because Martz is right — instead of bringing a direct attack, they're trying to do the end around, and all the end around is, when you read all these memos of Martz and Nimmich and Ahlerich and so forth, it's a question of who gets credit, who gets credit for the validation studies.
Agent Martz told Mr. Randa about his family, and then Agent Martz started to make some comments about Dr. Whitehurst. He expressed his concern that Dr. Whitehurst not talk before he was done testifying in the Simpson case.