PCR testing and exhibits

📄 PCR testing and exhibits — Friday, September 29, 1995

Address:

C:\DEPT103\CRIMINAL\1995\SEP\29\PCR-TESTING-AND-EXHIBITS.DOC

TRIAL

▲ Day 164 of 167

◀ Sidebar: closing argument objections Closing argument — Marcia Clark (part 6) ▶

Date: Friday, September 29, 1995 • Utterances: 62

Out of jury proceedings to resolve two administrative issues: which exhibit contains the '42' Nicole Brown Simpson blood pool results, and the state of the record regarding PCR typing of investigating officers. The core dispute centers on whether Marcia Clark's argument to the jury — implying a defense request for officer PCR results would have been honored — was accurate; Scheck argues it was not, because the request was made and refused. Ito orders Clark to correct the record but declines to go further.

# 1 (The following proceedings were held in open court, out of the presence of the jury:)

# 2 THE COURT:

All right. Back on the record in the Simpson matter. All parties are again present. Counsel, did we determine which of the results boards--which exhibit has the 42 results?

# 3 MR. COCHRAN:

Your Honor, may I step out?

# 4 THE COURT:

No. Which exhibit is it?

# 5 MS. CLARK:

We're looking.

# 6 MR. SCHECK:

Conventional serology board.

# 7 MS. CLARK:

I don't know what issue is left.

# 8 THE COURT:

The issue is 42 and the issue is the state of the record regarding request for blood samples or PCR results from the investigating officers. That's the issue. I think the state of the record is, a request was made and declined. That's my recollection of what happened.

# 9 MS. CLARK:

For--wait. What are we talking about?

# 10 THE COURT:

We're talking about two things. We're talking about 42, Nicole Brown Simpson blood pool results.

# 11 MS. CLARK:

Yes.

# 12 THE COURT:

And we're talking about the request for the PCR testing results of any of the investigating officers with regard to the 4 allele on the steering wheel.

# 13 MS. CLARK:

Could I ask Mr. Harmon to address the court on that matter, because he handled it. I didn't.

# 14 THE COURT:

Good afternoon, Mr. Harmon.

# 15 MR. HARMON:

Good afternoon, your Honor. Starting with the request in--what seemed like a lifetime ago--we had a lot of requests from the Defense. Some of them we acquiesced to initially because we had the material and it was readily available.

# 16 THE COURT:

Let's cut to the chase.

# 17 MR. HARMON:

Sure.

# 18 THE COURT:

What's the state of the record?

# 19 MR. HARMON:

The state of the record is, many, many months ago, they requested a broad request, all laboratory personnel and a vague request for police personnel. We eventually provided all the PCR typing results for all the police personnel that we had and then that were produced as this trial slowly progressed and we told them that we didn't have them for police officers, and it is my recollection that that was the end of that and that there was never a formal request made of you to resolve the request.

# 20 THE COURT:

The problem is, this is reference to items not in the record. That's my concern.

# 21 MR. HARMON:

Excuse me?

# 22 THE COURT:

This is something that is not in the record before the jury though.

# 23 MR. SCHECK:

Your Honor--

# 24 THE COURT:

Hold on. I'm not finished talking to Mr. Harmon.

# 25 MR. SCHECK:

I apologize.

# 26 THE COURT:

That has not been a subject of questions and answers before the jury; is that correct? My recollection is that it has not.

# 27 MR. HARMON:

That police officers were not typed?

# 28 THE COURT:

Yes.

# 29 MS. CLARK:

That is correct, your Honor.

# 30 THE COURT:

Thank you.

# 31 MR. SCHECK:

Your Honor, Mr. Harmon--listen carefully to his answer because his answer accords with your recollection and my recollection. It wasn't a vague request. We requested the types--

# 32 THE COURT:

Counsel, the point is, is it in the record before the jury. The answer is no.

# 33 MR. SCHECK:

No, no.

# 34 THE COURT:

No, no. Counsel, that's the issue. If it's not in the record before the jury, then it's not something that's appropriate to have argument made of. Do you agree?

# 35 MR. SCHECK:

I agree with that. And I have a further point if you may just hear me. And that point is this, because you must instruct the jury to the contrary. As Mr. Harmon has indicated and as the court recalls, we did make such a request for the typings of the police officers, and they chose not to do them. Mr. Harmon can say now they weren't available, so we didn't produce them. But the record and the truth is, we made the request and they did not provide it. What Miss Clark just told the jury is if--

# 36 THE COURT:

Counsel, I know.

# 37 MR. SCHECK:

That would have been honored. Untrue, and they should be so instructed. The request was made and it was not honored. Those are the facts. That's what the jury should be instructed. She had no right to say it in the first place. What she said wasn't true and that should be corrected.

# 38 THE COURT:

Thank you.

# 39 MR. HARMON:

Your Honor, can I just comment on that?

# 40 THE COURT:

No, no, no. You don't need to comment on that. You know, it's obvious to me we're not going to finish this today, isn't it? So now, what's going to happen is, Miss Clark is going to get a second wind over the weekend.

# 41 MS. CLARK:

Judge, why won't we be able to finish today?

# 42 THE COURT:

You are going to finish in 90 minutes?

# 43 MS. CLARK:

Yes.

# 44 THE COURT:

Okay.

# 45 MS. CLARK:

Especially if we don't have 90 minutes of argument in-between, I'll be done. I will be done, your Honor. Now, what I had no knowledge of what--it was my understanding from Mr. Harmon that the request was made. Mr. Harmon said, "Give me a list of the officers." They never came back to him and that was the state of the report.

# 46 THE COURT:

The state of the record is this. No typing results, PCR typing results were made available to the Defense by the Prosecution during the course of the case. That's the state of the record.

KEY QUOTE

# 47 MS. CLARK:

Then I will correct it.

# 48 THE COURT:

That is not before the jury and you need to correct that.

# 49 MS. CLARK:

Okay.

# 50 MR. SCHECK:

The request was made for it. That's the important point. She said the request would have been honored. The request was made and it wasn't--

# 51 MS. CLARK:

You know what the problem is, your Honor?

# 52 THE COURT:

Wait.

# 53 MS. CLARK:

He makes it sound like there was a refusal, and that's not the truth.

# 54 THE COURT:

Counsel, what I'm asking you to say is, correct your argument that no results, no PCR results of any of the investigating officers were provided to the Defense. You need to correct that period. All right.

# 55 MR. SCHECK:

Your Honor, what about the request? She said "Request."

# 56 THE COURT:

Counsel, no.

# 57 MR. SCHECK:

Well, that's the truth. We made a request and they didn't provide them. She said "Request."

# 58 THE COURT:

Sit down. I've heard enough. We're going to conclude this.

# 59 MR. SCHECK:

It's not fair.

# 60 THE COURT:

Deputy Smith. I've allowed counsel on both sides wide latitude in argument here.

# 61 MR. SCHECK:

With no disrespect to the court, I don't agree.

# 62 THE COURT:

Thank you. I'm sure we will have a chance to talk about it some other time.

Temperature

tense

Key Quotes (4)

Lance A. Ito

The state of the record is this. No typing results, PCR typing results were made available to the Defense by the Prosecution during the course of the case. That's the state of the record.

Ito cuts through the dispute and establishes the factual bottom line, which Clark must correct before the jury.

Barry Scheck

What Miss Clark just told the jury is if--...That would have been honored. Untrue, and they should be so instructed. The request was made and it was not honored. Those are the facts.

Scheck argues Clark made a materially false representation to the jury about prosecution willingness to provide officer PCR results.

Barry Scheck

It's not fair.

Rare open expression of frustration as Ito shuts down his argument mid-sentence.

Lance A. Ito

You know, it's obvious to me we're not going to finish this today, isn't it? So now, what's going to happen is, Miss Clark is going to get a second wind over the weekend.

Dry, weary aside from the judge suggesting he doubts Clark's estimate that closing will finish in 90 minutes.

Evidence (2)

Informal

Conventional serology board ('42' results) — Nicole Brown Simpson blood pool results

discussed, exhibit identity being located

Informal

PCR typing results for investigating officers, specifically re: 4 allele on steering wheel

discussed; Prosecution acknowledges none were provided to Defense

Notable Exchanges (3)

Barry Scheck•Lance A. Ito

Scheck repeatedly tries to get the court to instruct the jury that the defense made a specific request for officer PCR results that was refused, not merely unfulfilled. Ito limits the correction narrowly to the fact that no results were provided, cutting Scheck off multiple times and finally telling him to sit down.

heated

Marcia Clark•Lance A. Ito

Clark claims she had no knowledge of the true state of the PCR request history, defers to Harmon, and ultimately agrees to correct her argument to the jury.

procedural

Rockne Harmon•Lance A. Ito

Harmon attempts to explain the history of the PCR request; Ito cuts him off with 'let's cut to the chase' and later declines to let him respond to Scheck's characterization.

procedural

Light Moments (2)

Lance A. Ito

Ito remarks dryly that Clark will 'get a second wind over the weekend,' clearly skeptical she can finish closing in 90 minutes.

Rockne Harmon

Harmon begins with 'Starting with the request in--what seemed like a lifetime ago' before Ito cuts him off.

Credibility Attacks (1)

⚔ Marcia Clark

prior inconsistent statement / misrepresentation to jury

Scheck argues Clark told the jury that a defense request for officer PCR results would have been honored, when in fact the request was made and not fulfilled — and the court orders her to correct the statement.

Objections

None recorded

Proceeding 7871 • 62 utterances

Criminal Trial

Department 103