Department no. 103 Hon. Lance a. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Bailey, Mr. Thompson, Mr. Neufeld, Mr. Scheck. The People are represented by Mr. Clarke, Mr. Darden, Miss Kahn, Mr. Harmon. The jury is not present. Counsel, anything we need to take up before we invite the jurors to rejoin us?
MR. NEUFELD: Just one matter, your Honor.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Although I expected to receive the statistical statements regarding four-contributor frequencies for the Bronco last night so we could evaluate them prior to commencing cross-examination this morning, I did not. In fact, I just received them a few minutes ago when I walked into Court. There is one significant omission from this report or from these computations which we were given with respect to the three-contributor computations, and that is the underlying table. All that is expressed on this one page is the low number and the high number, as opposed to the spread of numbers reflected in table 30 for 3. I have asked Dr. Weir to provide us with that data. He said it is a--one long page of printout and he will be able to--he is shaking his head no. Maybe we can get some clarification on that.
THE COURT: Mr. Clarke.
MR. CLARKE: First of all, your Honor, Dr. Weir worked on these additional calculations until midnight and also got up before 6:00 a.m. to work on them as well, so needless to say, he has been hard at work and producing them as fast as humanly possible. As to this additional page that Mr. Neufeld seeks, that would require Dr. Weir to actually produce this table and it is not simply printing it out. He would actually have to perform the calculations necessary to produce this table that Mr. Neufeld has described. That is the reality of what it will take. It will take some considerable work. That is where we stand.
THE COURT: All right. What do you have, the range computations similar to the 2 and 3 potential contributors?
DR. WEIR: Yes. Well, the testimony is prepared, yes.
MR. NEUFELD: Judge, to actually do that range he had to prepare the calculations I'm talking about which is reflected in table 30 for three contributors. So we are asking that we be given the same, and especially given the fact that there is a substantial possibility that we will not finish the cross-examination this morning and it does continue until Monday morning, I'm going to want the weekend to evaluate that data.
THE COURT: The problem is, if he hasn't computed the data and if it doesn't exist, then how can I order its production?
MR. NEUFELD: I don't understand how he could not have computed the data because the only way one can arrive at the range of frequencies is to actually calculate the frequencies.
THE COURT: Doctor, how do we come up with that without doing that?
DR. WEIR: I have obviously done the calculations. I have not tabulated them. This is an intermediate step in my program. The program does a lot of calculations and then looks for the smallest and largest. I could compile them. It would take a couple of hours' work to put all this information together in the tabular form and I will not be working tomorrow.
THE COURT: When can you make that available to Mr. Neufeld in its raw form?
DR. WEIR: By about nine o'clock Sunday evening. I would have to work on it on Sunday.
THE COURT: Is it something that you can just download from that particular portion of the program?
DR. WEIR: I can do it. I can rerun the program, and constructing the table is actually almost as much trouble.
THE COURT: I'm not asking you to construct a table; I'm just asking you if the calculation--?
DR. WEIR: I could print those out, yes.
THE COURT: That can be printed out?
DR. WEIR: Yes.
THE COURT: When can we do that?
DR. WEIR: I can do it on Sunday.
MR. NEUFELD: Right, and just save for the calculations, the same way it does in table 30, whether it is Caucasian, Hispanic, African American, whatever. The only other thing I would ask for, your Honor, which he did do for two donors but he did not do for three donors or four donors is he actually calculates the number of--of potential pairs. He did that for his two donor numbers in the report, but he didn't do it for three donors or four donors. And since all of his numbers are predicated on having the correct number of three-donor trios and the correct number of four-donor quads, if you will, we need that as well so that we can confirm or reject his hypothesis. There is no way we can simply look at a number and know if he did it correctly unless we look at the underlying data to see how he arrived at those numbers.
THE COURT: Does that data exist, Mr. Clark?
DR. WEIR: Not presently. I can generate it.
MR. CLARKE: The difficulty is, your Honor, is the Defense is now asking Dr. Weir to perform things.
THE COURT: Do additional work. That is why asked Dr. Weir does that information exist. He says yes, that can be printed out.
MR. CLARKE: Very well.
THE COURT: They are entitled to have that information. I'm not asking him to do any additional work.
DR. WEIR: The second item would require more work.
MR. NEUFELD: When can this all be--
DR. WEIR: On Sunday. I'm not going to work tomorrow. I will start work at noon on Sunday and I will give it to you as soon as I have completed it. I'm quite tired.
THE COURT: As we all are and we are all glad it is Friday. All right.
MR. NEUFELD: Thank you.
THE COURT: Deputy Magnera.
MR. CLARKE: Just for the record, the Court requested that those labels be placed on as to the word "Mix" and I have put those to the right of the "Mixture" column for each of the frequencies.
THE COURT: All right. Thank you. Let's have the jurors, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: Dr. Weir, would you resume the witness stand, please.
Bruce Weir, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Good morning, Dr. Weir. Doctor, you are reminded, sir, you are still under oath. And Mr. Clarke, you may conclude with your direct examination.
MR. CLARKE: Thank you, your Honor. Good morning again, ladies and gentlemen.
THE JURY: Good morning.
DIRECT EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Dr. Weir, good morning.
DR. WEIR: Good morning.
MR. CLARKE: Just a few more frequencies to report. And what I would like to have you do, Dr. Weir, is return to the Bundy crime scene results, in particular item no. 78, if that would be acceptable.
DR. WEIR: That will be fine.
(Brief pause.)
MR. CLARKE: With regard to that particular item--and I believe yesterday you described approximately how often this combination of RFLP frequencies would be observed assuming that two persons contributed to a mixture with regard to that boot drop stain; is that right?
DR. WEIR: That's right, yes.
MR. CLARKE: Can you describe for us also the approximate frequency that those genetic types would be found if that stain consisted of three donors or three contributors?
DR. WEIR: Yes, I can. The most frequent figure is it is a 1 in one million.
MR. NEUFELD: I'm sorry, Dr. Weir what table are you referring to, please?
DR. WEIR: This is the table on--
THE COURT: Excuse me, counsel. Would you address those comments to me, please.
MR. NEUFELD: I'm sorry, your Honor.
THE COURT: All right. Dr. Weir?
DR. WEIR: It is the table that we gave to you this morning.
THE COURT: All right. Do you have that in front of you, Mr. Neufeld? Do you have that in front of you? Doctor, what page is that?
DR. WEIR: It is a single-page table, your Honor.
MR. NEUFELD: I have that.
THE COURT: Proceed.
DR. WEIR: So the low figure was 1 in a million and the high figure is 1 in 300 million.
MR. CLARKE: I am writing in 1 in one million to--
MR. CLARKE: I'm sorry, 1 in how much?
DR. WEIR: 300 million. That is the frequency of finding that mixed stain from three contributors, three unknown contributors.
MR. CLARKE: On item no. 78 in particular, the RFLP results?
DR. WEIR: That's right.
MR. CLARKE: Now, Dr. Weir, there appears to have been added, since yesterday, on this board, and in particular next to item no. 78, a label that says "Mix."
DR. WEIR: Yes. I think that is--I think that is just to emphasize that these calculations are for mixed stain where there is evidence that there was more than one contributor to that stain and this is the frequency of getting that mixture from either looks like two or three contributors.
MR. CLARKE: And I believe, to your knowledge, we also see that label "Mix" to describe other mixed stains, most of which you have already testified about yesterday?
DR. WEIR: That's correct, yes.
MR. CLARKE: Would that be, in your view, an appropriate way to ensure that when one looks at this chart and as to any frequencies that are written to the left of the term "Mixture," that what is being described in those frequencies is approximately how often one would see these combinations of types, assuming two contributors, which is a "2" circled and then with frequencies to the right or assuming three contributors, which is denoted by a "3" with a circle and approximate frequencies to the right of that?
DR. WEIR: Yes. I think that is an accurate description. I guess we could have also put a "1" colon with the single stains. Those all assume one contributor.
MR. CLARKE: All right. Very well. Now, if I could turn your attention to the glove and a few more results on that, do you have that before you now?
DR. WEIR: Yes, I do.
THE COURT: Mr. Clarke, I'm sorry, the Bundy crime scene board was People's exhibit--
MR. CLARKE: 259, your Honor.
THE COURT: Thank you. Just for the record.
MR. CLARKE: Thank you.
(Brief pause.)
THE COURT: All right. Dr. Weir, did you produce a new chart for this calculation?
DR. WEIR: I--
THE COURT: A new report?
DR. WEIR: Yes, your Honor.
THE COURT: Mr. Neufeld, do you have that? This is on the glove.
MR. NEUFELD: Yes.
THE COURT: All right. Mr. Clarke.
MR. CLARKE: Thank you, your Honor.
THE COURT: And the glove board is People's--
MR. CLARKE: Exhibit 272-B.
THE COURT: Thank you.
MR. CLARKE: Dr. Weir, with regard to this particular board, and you have at this point described a number of the results already yesterday; is that right?
DR. WEIR: That's right, yes.
MR. CLARKE: There again appear to be, and in the instance of this board, a number of labels that say "Mix" off to the right of the "Frequency" column?
DR. WEIR: Yes.
MR. CLARKE: And are those used to describe the same thing as to the term "Mix" on the previous boards, that the frequencies to the left of that word are again approximations when they are assumed to be two or three contributors to each of those particular evidence items?
DR. WEIR: That's right.
MR. CLARKE: Now, let's start with at the very top there appears to be an item number, actually they are all item no. 9, but there is one result at the very top of the board containing what appear to be DQ-Alpha results only; is that right?
DR. WEIR: Yes, that's right, uh-huh.
MR. CLARKE: In other words, that was a particular stain for which there was only one genetic marker result following the use of PCR?
DR. WEIR: That's right.
MR. CLARKE: Did you calculate an approximate frequency of again these two-contributor possibilities versus three-contributor possibilities as you did with the other stains yesterday?
DR. WEIR: Yes, I did.
MR. CLARKE: And for that uppermost stain on the results board, do you have an approximate frequency, assuming that two contributors donated that set of characteristics?
DR. WEIR: Yes. For two contributors the range is from 1 in 30.
MR. CLARKE: 1 in 30?
DR. WEIR: Yes, to 1 in 190.
MR. CLARKE: And did you perform a similar calculation, assuming three contributors?
DR. WEIR: Yes. For three the range is from 1 in 6 to 1 in 90.
MR. CLARKE: Now, with regard to the glove, can you tell us--and what I'm referring you to now are items G1, G2 and G4?
DR. WEIR: Yes.
MR. CLARKE: In particular the RFLP typing results, and yesterday we spoke about assuming two contributors, can you describe for us what those approximations would be, assuming three contributors?
DR. WEIR: Yes, I can. So the items G1 and G2 both have the same number of bands in the RFLP profiles so for item G1 and for G2 the range is from 1 in 3000 up until 1 in 10 million.
MR. CLARKE: And that would apply also to the three-contributor situation on the RFLP results on G--I'm sorry G2?
DR. WEIR: That's right, the G2, the same range, 1 in 3000 to 1 in 10 million.
MR. CLARKE: And then lastly, with regard to this board, did you make a similar calculation for G4, assuming again three contributors to the RFLP mixture?
DR. WEIR: Yes, I did. For three contributors the range is from 1 in 20,000 to 1 in 90 million.
MR. CLARKE: With regard to that range again, what is the reason that that range could be from 20,000 to 90 million?
DR. WEIR: Well, it depends on the databases used. We are assuming three contributors, all of whom are unknown to us. Any of those three can be from any racial background so that we should use any of the current databases. We don't know which to use so we use them all, we use all possible combinations, and that is just the various bands have different frequencies in the different databases.
MR. CLARKE: All right. Lastly, Dr. Weir, I would like to take you to one final board.
(Brief pause.)
MR. CLARKE: Which I believe, your Honor, is People's exhibit 260. It is labeled the "Results board" and we have described it as the results board for the Bronco.
THE COURT: Thank you.
MR. CLARKE: Dr. Weir, turning your attention to this particular board, is this another board that you have been provided basically a smaller Xeroxed version of?
DR. WEIR: Yes, it is.
MR. CLARKE: And that board or that chart that you were provided contained results as are written in currently on this board, the large chart that is here in court?
DR. WEIR: That's right.
MR. CLARKE: Can we turn your attention then to item no. 29, the steering wheel.
DR. WEIR: Certainly.
MR. CLARKE: Did you make calculations in a similar manner as you've described yesterday and this morning for various different situations in which two contributors may have provided the characteristics shown in these results or three contributors?
DR. WEIR: Yes, I did.
MR. CLARKE: Have you also, in the instance of the results from the Bronco automobile, calculated estimates for how often the characteristics would be seen in these pieces of evidence if four contributors were involved?
DR. WEIR: Yes, I have.
MR. CLARKE: Specifically with regard to item no. 29, there were results obtained from that item using PCR markers alone; is that right?
DR. WEIR: That's right.
MR. CLARKE: In other words, no RFLP results were obtained on that particular item?
DR. WEIR: That's right.
MR. CLARKE: Then using these PCR markers alone, did you calculate again for two, three and four potential contributors these same estimates of frequencies?
DR. WEIR: I did.
MR. CLARKE: And let's start, if we could, with no. 29 and assuming two contributors, could you give us the approximate frequency that those characteristics would be found?
DR. WEIR: Yes, for two the range is from 1 in 60 to 1 in 11,000.
MR. CLARKE: Did you make the same types of estimates, assuming that there were three people who provided those DNA characteristics?
DR. WEIR: Yes. For three the range is from 1 in 9 to 1 in 3500.
MR. CLARKE: 3500?
DR. WEIR: 3500, thank you.
MR. CLARKE: And then lastly, what about assuming four contributors?
DR. WEIR: Well, if we saw four we mightn't be surprised at all, the range goes from 1 in 1--
MR. CLARKE: Why 1 in 1?
DR. WEIR: Well, we have some fairly common bands in this profile and if we allow four people to contribute, it is going to be very likely that amongst the four we will see the mixture.
MR. CLARKE: So would the proper way of writing it be 1 in 1?
DR. WEIR: Yes, I think so.
MR. CLARKE: To what? What would be the other end of the range?
DR. WEIR: 1 in 3000.
MR. CLARKE: Now, when you use the term "1 in 1," that is what you are saying, that if four people were selected at random that there would nearly be 100 percent chance that they would have this combination of markers?
DR. WEIR: That's correct.
MR. CLARKE: During your attention to item 31 from the center console--and again these were results generated by PCR only?
DR. WEIR: That's right, yes.
MR. CLARKE: --did you make these same types of calculations for the DQ-Alpha marker and the D1S80 marker?
DR. WEIR: Yes, I did.
MR. CLARKE: Okay. Let's start with the assumption that there are two contributors?
DR. WEIR: For item 31 and two contributors the range is from 1 in 4700--4700, to 1 in him 19,000.
MR. CLARKE: 4700 to 19,000?
DR. WEIR: Right.
MR. CLARKE: What about assuming three contributors?
DR. WEIR: The range is 1 in 4600 to 1 in 71,000.
MR. CLARKE: 4600 to 71,000?
DR. WEIR: Right.
MR. CLARKE: And then lastly assuming four?
DR. WEIR: The range is from 1 in 1300 to 1 in 350,000.
MR. CLARKE: All right. Dr. Weir, then lastly, if I can turn your attention to items 303, 304 and 305, did you again perform this similar calculation process?
DR. WEIR: Yes, I did, and these items once again have the same profile as each other so the numbers are going to be the same for the whole three, so for item 303 and assuming two contributors the range is 1 in 1400 to 1 in 18,000.
MR. CLARKE: And that would be the same assuming two contributors for 303, 304 and 305?
DR. WEIR: That's right, yes.
MR. CLARKE: Then I will write that in on the other two.
DR. WEIR: Fine.
MR. CLARKE: Did you also perform a calculation assuming three contributors to each of these three stains?
DR. WEIR: Yes. Then there the range is 1 in 450.
MR. CLARKE: And the upper range?
DR. WEIR: 29,000.
MR. CLARKE: And lastly, assuming four contributors to each of these stains?
DR. WEIR: The range is 1 in 49.
MR. CLARKE: And the upper range?
DR. WEIR: 69,000.
MR. CLARKE: And your Honor, I have placed those numbers on People's exhibit 260.
THE COURT: Yes.
MR. CLARKE: Thank you.
THE COURT: Thank you.
MR. CLARKE: Dr. Weir, you have had an opportunity to review all of the frequencies and I'm talking about now the frequencies other than those that you've described for the mixtures over the last two days?
DR. WEIR: Yes, I have.
MR. CLARKE: And you have had an opportunity to examine the reports of the testing laboratories wherein they describe relative frequencies for those stains that appear to be from one person; is that right?
DR. WEIR: That's true.
MR. CLARKE: You have also examined the results as reported on all five of the results boards, that is, DNA results board in this case; is that right?
DR. WEIR: Yes, I have.
MR. CLARKE: You have examined those results, as well as the databases that these laboratories utilize; is that right?
DR. WEIR: Umm, yes, the FBI's. I have not examined all the data used by DOJ in their report. I have not examined the Orange County Hispanic database. When I was doing calculations I was using FBI Hispanic.
MR. CLARKE: When you performed your calculations, you utilized or used the databases from the FBI that you described yesterday; is that right?
DR. WEIR: That's right, yes.
MR. CLARKE: And as a result of your use of those databases and the specific results in this case, you produced your own approximate frequencies, not only for the mixtures but also for the stains that appear to come from one person?
DR. WEIR: Yes, I did.
MR. CLARKE: Did you compare those results that you obtained with those reported by the testing laboratories in this case, Cellmark and the Department of Justice?
DR. WEIR: Yes, I did.
MR. CLARKE: Do you have an opinion about the accuracy and reliability about--that is, of the results produced by those two laboratories in this case?
DR. WEIR: Yes. I think the results reported generated by those, they are all good estimates of the frequencies.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Thank you. I have no further questions, your Honor.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Yes, your Honor. Do you want to take five minute so I can handle the discovery documents?
THE COURT: Sure. Ladies and gentlemen, we are going to take a brief five or ten-minute recess just to cycle into cross-examination. Please remember all my admonitions. Let me ask you to step back into the jury room.
(The jury exited the courtroom and the following proceedings were held in open court.)
THE COURT: All right. Thank you. Be seated. The record should reflect the jury has withdrawn from the courtroom. Mr. Neufeld, what do you need?
MR. NEUFELD: I want to turn over to the People copies of the items I intend to utilize to cross-examine this witness.
THE COURT: All right.
MR. NEUFELD: Which will take me about two or three minutes just to put together. What is the--I'm sorry, does the Court prefer to see the overheads first or shall I just--
THE COURT: Why don't you show it to counsel.
MR. NEUFELD: There is more.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: Miss Robertson, do you have Dr. Shield's CV as a Defense exhibit? What is Defense next in order? It should be 1197.
(Deft's 1197 for id = Dr. Shield's CV)
THE COURT: All right. Mr. Clarke, are we about ready to proceed?
MR. CLARKE: Yes. I'm just finishing one of the letters if I could, your Honor.
THE COURT: All right.
(Brief pause.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Mr. Clarke, are we ready?
THE CLERK: Yes. I need to address these items individually when the Court is ready.
THE COURT: All right. Let's proceed.
MR. CLARKE: All right. The Defense has obviously handed us a number of different items. I will start with those which we do not have an objection to. And in terms of describing them, we have been provided what appear to be a stapled package of six charts that look similar to the charts used yesterday in court on the overhead projector, including the summing of genotype, type charts. And at this point, assuming a proper foundation is laid, we have no objection to their use.
THE COURT: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: We also received what appear to be smaller versions of what I anticipate will be slides used with the witness. Two of them refer to the steering wheel and contain something of a diagram. And again assuming a proper foundation is laid, we have no objection to them. There are, however, in addition to that, what appear to be six slides with the cover of the national research council report and then various portions from that particular report. Our objection is the same as it has been previously with regard to hearsay and evidence code section 721, so I'm simply alerting to the Court that there will be an objection if there is any attempt to use that. And I don't believe the Defense should be able to either read from it or put a slide on the board until a proper foundation is laid under 721. There is a one-page table of what appears to be a frequency chart, database type frequency chart. Again assuming a proper foundation is laid, we have no objection to it.
And then there are two sets of documents, one of which is the--appears to be a copy of the unpublished letter to science magazine that was a topic of discussion in this court some weeks ago. Our objection remains the same to it. Obviously hearsay, not been published in the scientific literature, and again I just want to alert the Court if the Defense attempts to bring out contents or the nature of this report without otherwise providing a proper foundation as to its hearsay nature, then my objection probably will be rapid. And of what has been provided to us, the last item appears to be a series of three letters, four letters, I'm sorry, some from Dr. Weir and at least one to Dr. Weir.
MR. NEUFELD: I'm sorry, let me interrupt. I would just ask that I think is the Court's rule on discovery that it is going to be used for cross-examination, that it not be shown to the witness while he is being cross-examined, that for this discussion I would simply ask that the witness step out of the room.
THE COURT: No.
MR. CLARKE: There are number of letters, and again, unless there is a proper foundation, they are obviously hearsay at this point, so I just want to alert the Court that any attempts on the Defense's part--
THE COURT: If they are letters of Dr. Weir's, they could be prior inconsistent statements, et cetera.
MR. CLARKE: They may be. That is what I mean. In other words, I'm assuming a proper foundation will be laid for all of this, but I want to alert the Court that my objections may be very quick and very vocal about items that this Court has already resolved.
THE COURT: All right. Thank you. Anything else?
MR. NEUFELD: Yes, your Honor. I would like to actually resolve one comment on the national academy of science report. Your Honor, I have looked at some of the case law in California since we addressed this issue last with Dr. Cotton, and I frankly have not found any case that says that the witness can pick and choose within a chapter within a learned treatise and say that he can be cross-examined as to a portion of a chapter which he relies on but he doesn't rely on another portion of the chapter.
THE COURT: Let see what the foundation is.
MR. NEUFELD: Okay. I also want to call the Court's attention to Witkin and Witkin says very specifically, your Honor, that--and I quote--
THE COURT: Which edition?
MR. NEUFELD: Witkin or Witkin and Epstein?
MR. NEUFELD: Witkin 5, cross-examination of expert witnesses, section 1899, et seq.
THE COURT: Well, if Witkin says it, it must be true.
MR. NEUFELD: And the statement in Witkin, your Honor, is, and I quote: "Similarity is important to permit an expert witness to be cross-examined concerning those publications referred to or considered by him even though not specifically relied on by him in forming his opinion. An expert's reasons for not relying on a particular publication that we referred to or considered by him on forming his opinion may reveal important information bearing upon the credibility of his testimony." I would also point out, your Honor, that this witness cites the NRC report in his report that was filed with the Court and given to counsel.
THE COURT: Well, like I said, let's see what the foundation is.
MR. NEUFELD: Certainly.
THE COURT: All right. Let's have the jurors.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. The record should reflect we have been rejoined by all the members of our jury panel. And Mr. Neufeld, you may commence your cross-examination.
MR. NEUFELD: Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Good morning, Dr. Weir.
DR. WEIR: Good morning, sir.
MR. NEUFELD: Dr. Weir, we've met before professionally, have we not?
DR. WEIR: Yes, sir.
MR. NEUFELD: But we have never encountered one another in a courtroom before this?
DR. WEIR: I believe not.
MR. NEUFELD: Okay. Dr. Weir, you said a moment ago at the conclusion of the direct examination that in assessing the estimates provided by the Department of Justice in California and Cellmark that you felt that they were, "Good estimates"; is that correct?
DR. WEIR: Yes, that is--I do.
MR. NEUFELD: But they are not the best estimate, are they?
DR. WEIR: Umm, well, I think based on those data they are the appropriate estimates and for a single point estimates I believe they are the best, yes.
MR. NEUFELD: Well, let me ask you this, sir--
THE COURT: Dr. Weir, would you just pull the microphone a little bit closer.
DR. WEIR: Sorry.
THE COURT: Thank you.
MR. NEUFELD: Do statisticians use the term "Best estimate" when applying a statistical estimate of the occurrence of something?
DR. WEIR: Not generally. We have more specific terms and that is--we probably need to explore that further. It is kind of vague. We might talk about--
MR. NEUFELD: Well, let me ask you this, Dr. Weir--
THE COURT: I'm sorry, counsel, he was in the middle of his answer.
MR. NEUFELD: I'm sorry.
DR. WEIR: I will finish.
MR. NEUFELD: I will apologize.
DR. WEIR: No, I will stop.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Do the estimates that are provided by the Department of Justice and Cellmark in this case incorporate the corrections that you deem appropriate?
DR. WEIR: Well, that is a two-part question. As with the other labs, I produce an estimate by multiplying numbers together. That is the estimate. That is what I characterize as being a good estimate. Along with that estimate, as I explained yesterday, I would do two other additional steps, attach confidence limits and allow for appropriation structure, and those additions have not been done by the two labs.
MR. NEUFELD: Okay. So if you were giving the best estimate in this case it would--no. 1, it would account for a substructure; is that correct?
DR. WEIR: No. I think what I said is the best estimate is what they have done. Along with that estimate I would do these additional two steps.
MR. NEUFELD: When you do your additional two steps you come up with a new estimate; isn't that correct, Dr. Weir?
DR. WEIR: That's right. As I explained yesterday, in public opinion poles, we have two parts to the answer, the 47 percent and the plus and minus.
MR. NEUFELD: And so, Dr. Weir, if you made your--your additional step, which is the result of accounting for possible substructure, that would come up with an estimate which would be more favorable to the accused than the estimate provided by Cellmark and the Department of Justice; isn't that correct?
DR. WEIR: That's true.
MR. NEUFELD: And sir, the other procedure, a step that you take that was not taken by Cellmark and the Department of Justice, is to include what you just said a moment ago called "Confidence intervals," correct?
DR. WEIR: That's right, yes.
MR. NEUFELD: If you provided a 99 percent upper confidence limit to the numbers provided by Cellmark and DOJ, you would again come up with a number which is more favorable to the accused than the estimates that have been provided by Cellmark and the Department of Justice; isn't that correct?
DR. WEIR: That's right. Their original estimates of course remain good estimates, but along with those good estimates we attach the second part of the answer. We say here is our good estimate and here is our confidence limit. Here is our good estimate and here is an appreciation of how it will change with population structuring.
MR. NEUFELD: And would that--
DR. WEIR: It is not correct to characterize one as being right and one wrong. The answers are, as you appreciate it, are complex and they are multi-faceted. What we have seen on the board here is the simplest interpretation.
MR. NEUFELD: Sir, all I'm asking is would you agree that if you make the additional two steps that you have suggested, namely for substructure and for confidence intervals, which were not done by Cellmark and DOJ in their testimony, you would arrive at an estimate that is more helpful to the accused?
DR. WEIR: Well, I don't--I don't think that is quite saying what I said. We have--we have the estimate as presented on the boards here. Along with that estimate we give a range and showing how it would change. It is not that we are putting our faith on any one of these single numbers. We can't divorce the estimate from--from the range, they go together, so we don't--it depends on your point of view, I suppose, but the Defendant would be happy with the 47 percent because he would add on the three and the opponents would be happy with subtracting it. Of course they are both stretching the limit. The fact remains the data support the 47 percent along with that, so it must be a compound answer. The extreme limits will be more favorable to the Defendant of course. And the estimate remains the good estimate.
MR. NEUFELD: Sir, but by adding--by doing your two steps, you will get a frequency that is more common than the frequency articulated by Cellmark and DOJ; is that correct?
MR. CLARKE: Objection, asked and answered.
THE COURT: Overruled. Different question.
DR. WEIR: I will be presenting a range. I will be giving the original estimate together with the range. The outside end of that range, the very outside end of the range will be more favorable to the Defendant.
MR. NEUFELD: And it is that outside end of the range which was not presented by Cellmark and the Department of Justice, correct?
DR. WEIR: That's true.
MR. NEUFELD: And you advocate that those outside ranges be presented to a jury, don't you?
DR. WEIR: Well, I don't really have much choice. As a statistician I need to explain estimates and the ranges, and I think as we will--and I think I said that the amount of difference does not change the conclusions that we've heard. Matching profile based on several loci is a rare event. The fact that it is rare--and that also I should believe that we should be worrying about the fact that it is rare. That fact is not changed by any of these manipulations of the numbers.
MR. NEUFELD: Let me ask you this, Dr. Weir, just to change gears for a second: During your career, sir, have you ever made any mistakes as a professional?
DR. WEIR: Oh, I'm sure I have.
MR. NEUFELD: Have you ever made errors in either calculations or computations?
DR. WEIR: I'm sure I have.
MR. NEUFELD: Have you ever in your career asserted facts that turn out not to be correct?
DR. WEIR: Well, you will probably refresh me with some. I hope not.
MR. NEUFELD: Okay. Would it be fair to say that you may have made mistakes during your career in certain facts that were asserted?
DR. WEIR: I may have made a mistake in my career, yes.
MR. NEUFELD: Okay. And would you also agree, doctor, that perhaps you have even propounded theories that at some time in the future ultimately were refuted?
DR. WEIR: I don't believe so. I don't--I can't think of any published refutations of any of my papers.
MR. NEUFELD: How about unpublished refutations? In other words--I'm sorry, let me clarify. Have you ever propounded a theory not in the publication or not in writing which was subsequently refuted?
DR. WEIR: Goodness, I don't know how I could answer that question. If I didn't say it or write it, how could I--
MR. NEUFELD: I'm asking if you verbally expressed it to other people or other colleagues in the field?
DR. WEIR: Oh, I can't be held accountable for every coffee conversation I may have ever had.
MR. NEUFELD: Okay. Now, I believe you said on direct examination that you yourself do not operate a forensic laboratory; is that right?
DR. WEIR: I do not.
MR. NEUFELD: And you have never operated a forensic laboratory, have you, sir?
DR. WEIR: I have not.
MR. NEUFELD: And in fact you don't do forensic testing of any sort, do you?
DR. WEIR: I don't do any laboratory work of any description.
MR. NEUFELD: And would it be fair to say also that you have no training in forensic science?
DR. WEIR: That's correct.
MR. NEUFELD: Now, but you would agree, sir, that it is not necessary to have training in forensic science or to operate a forensic laboratory in order to provide an expert opinion on the appropriateness of certain statistical methods that are being used for interpreting forensic DNA data?
DR. WEIR: I would have to agree with that because that is what I do.
MR. NEUFELD: Okay. And would you agree, sir, that the relevant areas of expertise in this particular subject include theoretical population genetics and the field of statistics?
DR. WEIR: Yes, that's right.
MR. NEUFELD: Now, there are--would you agree, sir, that there are often misunderstandings, if you will, about what statistics mean and what they don't mean?
DR. WEIR: I'm a statistician. I can't imagine that ever happening.
MR. NEUFELD: Okay. Well, let's just try and clear up a few things for those of us who aren't statisticians, sir. Would you agree that the numbers that are reflected on the Prosecutor's exhibits in this case are not the probability of Mr. Simpson's guilt or innocence?
DR. WEIR: That's absolutely correct, and nothing I have said or will ever say has to do with the probability of guilt.
MR. NEUFELD: I appreciate that. And would you agree, sir, that these numbers that appear on these boards are not the probability that someone other than Mr. Simpson is the source of any particular stain?
DR. WEIR: No. I think we've been very clear what these numbers are. These are the probabilities or the frequencies of finding those stains if they were contributed by unknown people. And I will say it once more, because it is easy to get confused, these are frequencies of the stains, be they single or mixed, if they were contributed by unknown people.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: So just so I'm clear on this, Dr. Weir, if someone said or suggested that these frequencies were the probability that someone other than Mr. Simpson was the source of a particular stain, that would be scientifically wrong, correct?
DR. WEIR: That would be wrong.
MR. NEUFELD: And the numbers up on this board and the other boards, Dr. Weir, they tell us nothing about the probability of a false or misleading match due to errors in the collection or handling of samples; isn't that correct?
DR. WEIR: These numbers on the board are the frequencies of the stains if they were contributed by unknown people. That is all they are.
MR. NEUFELD: Well, sir, therefore would you agree that these numbers tell us nothing about the probability of a false or misleading match due to errors in the collection or handling of samples?
DR. WEIR: These numbers are the frequencies of the stains, so that is all they are.
MR. NEUFELD: And therefore they are not the probabilities or frequencies that I just described; is that correct?
DR. WEIR: That's right. They are the frequencies of the stains if they were contributed by unknown people.
MR. NEUFELD: And sir, would you agree that these statistics that have been propounded in this case by Prosecution witnesses tell us nothing about the probability of a false or misleading match due to evidence tampering?
DR. WEIR: These numbers on the board reflect only the frequencies of the stains if they were given by unknown contributors. That is all they--that is all they convey. They don't convey any of these other things.
MR. NEUFELD: Well, and by your answer, sir, are you therefore saying that they don't tell us anything about the probability of a false or misleading match due to evidence tampering?
MR. CLARKE: Objection, asked and answered.
THE COURT: Sustained.
MR. NEUFELD: Your Honor, I don't believe it was responsive.
THE COURT: It was. Proceed.
MR. NEUFELD: And would you agree, Dr. Weir, that the numbers on these boards are irrelevant if the match is due to the combined effects of total degradation followed by cross-contamination with Mr. Simpson's blood, either from Rockingham swatches or from a minuscule amount of fresh blood from his reference sample?
MR. CLARKE: Objection, vague, assumes facts not in evidence.
THE COURT: Compound.
MR. CLARKE: Also argumentative.
THE COURT: Compound. Rephrase it.
MR. NEUFELD: All right.
MR. NEUFELD: Would you agree that the statistics on these boards, Dr. Weir, is irrelevant if the match is due to the combined effects of total degradation and cross-contamination with Mr. Simpson's blood either from--I'm sorry, with Mr. Simpson's blood from the Rockingham swatches?
DR. WEIR: I'm not sure I am here to talk about relevance. These numbers that I have verified are the frequencies of those stains if they were given by unknown contributors. As I think I said, my analysis starts with the determination of the laboratory that there is a match and these are the details of the matching profile. All of the numbers refer to the frequencies of the stains that are presented on the board. They have nothing--they make no statements about anything else and I'm not talking about relevance. That is beyond my expertise.
MR. NEUFELD: In fact, Dr. Weir, would you agree that the validity of all of your estimates and the estimates propounded by other Prosecution witnesses in this case assume that the laboratory work in this case was valid?
DR. WEIR: The validity of my results are self-contained. They follow from the profiles given. Once the profile is established and declared to match, everything else I have done is valid. Anything before that step I don't address.
MR. NEUFELD: Well, you say you don't address it, but you assume that all the work was done and all the results are valid; isn't that correct?
MR. CLARKE: Objection, asked and answered.
THE COURT: Overruled.
DR. WEIR: I think I have said that. I assume that the facts on the board are indeed the truth, they are the profiles and they do match.
MR. NEUFELD: Well, it is not just that they are the profiles. You are also assuming, sir, the validity of the underlying processing, collection, preservation and handling of the evidence by everybody who did the work up until the time that you analyze it; is that correct?
DR. WEIR: I--I said that I'm going to start with these profiles and the fact that they match and the details of them. Anything that goes prior to that is beyond my expertise.
MR. NEUFELD: Well, let me ask you this, sir: Referring to your report if you will--do you have a copy of it in front of you?
DR. WEIR: Yes, sir, uh-huh.
MR. NEUFELD: I call your attention to page 2. I'm sorry. On mine it is page 3. You state the following, and I quote: "These notes assume the validity of all DNA profiling by Cellmark Diagnostics, the California Department of Justice and the Federal Bureau of Investigation." Is that correct?
DR. WEIR: That's right. I think that is just what I've been saying. I start with a determination of the match and the nature of the profile. Anything prior to that is beyond what I do.
MR. NEUFELD: Well, you included, along with Cellmark and the Department of Justice, the Federal Bureau of Investigation; is that right?
DR. WEIR: Yes, sir.
MR. NEUFELD: Umm, are you aware of any DNA profiling that the Federal Bureau of Investigation did on evidence samples in this case?
DR. WEIR: No, I'm not, but it is obvious why I have that statement in there. My entire report is based on the FBI data. I must assume that those data are an accurate representation of the profiles of the people sampled. I have no choice but to assume those databases are valid.
MR. NEUFELD: Now, doctor, it is curious, however, that when you assume the validity of the DNA profiling of those different laboratories, you don't--or you fail to state whether you assume the validity of the DNA profiling done by the Los Angeles Police Department in this case?
MR. CLARKE: Object to the form of the question.
THE COURT: Overruled.
MR. NEUFELD: That is omitted from your statement, is it not?
DR. WEIR: That is omitted from my statement.
MR. NEUFELD: And are you aware, sir, that the Los Angeles Police Department conducted DNA profiling in this case?
DR. WEIR: I became aware about 8:00 p.m. last night.
MR. NEUFELD: Well, when you became aware of it at 8:00 p.m. last night did you feel it was necessary to amend your report?
DR. WEIR: Umm, if I would have had time after I finished working at midnight I may indeed have done that and added in the words "LAPD."
MR. NEUFELD: Are you aware, sir, that it was the Los Angeles Police Department that was responsible for the initial collection, preservation, packaging and processing of the evidence in this case?
DR. WEIR: Not in any great detail, no.
MR. NEUFELD: Would you agree, sir, that if the DNA profiles in this case were the result of laboratory error at the Los Angeles Police Department then all of your statistics, whether they are 1 in 50 billion or 1 in 5 million would be meaningless?
MR. CLARKE: Objection, asked and answered.
DR. WEIR: All of my statistics are completely meaningful because they contain a complete description of what they assume. They assume that these are the profiles, that they match, that they have this particular nature. With that starting point, everything else I've done is valid. It is certainly not meaningless. Everything I have done I believe is meaningful, given the starting point I've described.
MR. NEUFELD: Sir, so what I've asked you then, if in fact the DNA profiles were the result of error, then would your statistical estimates be meaningless?
MR. CLARKE: Same objection.
THE COURT: This is the same question we have now asked for the eighth time. Proceed. I'm going to sustain the objection.
MR. NEUFELD: Now, on direct examination you discussed with this jury or described to this jury that when you use the product rule, when you multiply these different frequencies, it is essential that the various factors that you are multiplying together are independent of one together; is that correct?
DR. WEIR: Yes, they must. We are regarding this profile as a set of pieces of information. That is typically ten or twelve. Sometimes it is even a lot more separate pieces of information. And when I say "Separate," that means we are assuming that in fact they are independent. It is not--although we talk about the matching profile, it is actually a lot more than that, because the word "Profile" is a word that describes a whole lot of matches. They are matches at both the bands of all the probes. So it is a very--very--if you like, very compelling events that we have these--this complete match. It is compelling because we regard these as being separate items of the match, and to put a number on that we have to regard them as being separate and independent, so we can do the product.
MR. NEUFELD: And I believe you said, Dr. Weir, yesterday morning to this jury or yesterday afternoon, excuse me, when you were discussing the factors which suggested independence here, I believe that one of the things you said to the jury was that the marker systems that they are relying on for forensic typing are what is commonly referred to as junk DNA. Do you remember saying that, sir?
DR. WEIR: I don't think I said that. I said--I said, I imagine--I hope I said that this is DNA of no known function.
MR. NEUFELD: Okay. And you said that because the marker system that they are relying on for forensic work are DNA of no known function, that is an additional piece of evidence, if you will, to suggest that there is no association here; is that correct?
DR. WEIR: No, I didn't say that. I said because the RFLP types have no known function, we may expect them to be independent. However, we are not entitled to go on expectations. We must perform the tests that I described and did indeed conduct and it wouldn't really matter if there was some biological agent at work affecting these--these various pieces of DNA, these various types providing the data, providing their frequencies are consistent with independence, then we may proceed with the assumption of independence and do the product rule. So when I do my test, as a statistical exercise it makes no statement about the underlying biology. Some of these pieces of DNA may in fact be very important for our well-being. We don't know that. And why I say they may be important, because if they were important, it might be that people with a certain type of DNA don't live as long, don't have as many children, and that would affect the frequency, so there is all that kind of phenomenon that may be going on. We don't think it is, but I may indeed be. However, when we look at the data, when we look at the databases and the frequencies, we find that these frequencies are consistent with being independent, so as a statistician I'm doing a statistical test. I'm making no statements about the underlying biology.
MR. NEUFELD: Well, Dr. Weir, are you aware of the fact that for many of the PCR forensic markers that are relied on in this case, they do code for proteins and they do have some effect on our health and well being?
DR. WEIR: Some of the PCR markers are inside our genes and they could very well, as I've just described, have an effect. What is kind of interesting, I suppose, and it is certainly reassuring for this forum, is that their frequencies are consistent with independence. Their frequencies show DNA. In fact, we may multiply them together, regardless of what effect those DNA's actually have on us.
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, this morning and yesterday, sir, you provided this jury with an approach to interpreting the mixtures; is that correct?
DR. WEIR: Yes, I did. We have given some numbers now which show us the frequencies of these various mixed stains if they were contributed by people unknown to us. That is what all these numbers mean and certain specified numbers of unknown people.
MR. NEUFELD: And when you provided this information to the jury, you simply provided what you found to be the most common frequency and then you gave the range of the rarest frequency; is that right?
DR. WEIR: That's right, yes.
MR. NEUFELD: But you also, at least in your report provided in tabular form a whole range of different frequencies depending upon the racial composition of two people or three people or even four people who may have been contributors; is that correct?
DR. WEIR: Yes. I think all these numbers do that. All these ranges, as we've said, talk about the frequencies of the unknown people and the various databases we have available to us.
MR. NEUFELD: And so, for instance, when you are looking at--when you work on the assumption that there were two contributors and you provided a range for these different items of evidence based on the assumption of two contributors, you don't assume that you know the identity of the two contributors, do you?
DR. WEIR: All these frequencies are for unknown contributors. They are all calculated throwing away any idea we might have who contributed, so these are all unknown people. These numbers refer to the frequency of which we would find that evidence if they were--evidence profiles were given by unknown people.
MR. NEUFELD: And so what you actually did, in arriving at these calculations and these estimates, Dr. Weir, is that you would list all the possible pairs, all the permutations, if you will, that if two people created a particular stain, a particular profile, what possible genotypes could each of them have; is that right?
DR. WEIR: Well, it is even more than that, of course. We have, say--the simplest case we have four of these bands, four alleles, so we know it is coming from two people, so I assume, well, I'm going to do a calculation as though they were given by two people unknown to me. One person might have these two bands and be African American. This other person might have those two bands and be Hispanic. Or one person might have the first and third bands and be Caucasian. And the second person will have the second and fourth bands and be African American. So you can see that there is a whole host of possibilities we have to consider. Remember that these contributors, under this calculation, are unknown to us. We have no idea who could possibly have contributed those mixed stains, and so we have no idea, we've got to consider all the possibilities that there are.
MR. NEUFELD: Setting aside for the moment that additional layer of complication, if you will, dealing with different races of the components, one of the things you did do, at least initially, is you would sum the frequencies of the different pairs of genotypes; isn't that right?
DR. WEIR: That's correct, yes, we have all the possible ways of getting those four alleles.
MR. NEUFELD: And it was your intent when did you this, Dr. Weir, was it not, to sum up all the possible pairs? You don't want to leave any out?
DR. WEIR: It was my intent and I certainly hope I didn't leave any out.
MR. NEUFELD: And would you agree, sir, that the more pairs that you include, the more common the ultimate frequency is?
DR. WEIR: That's right, yes.
MR. NEUFELD: So it is essential, to be fair to the Defendant in any case or to Mr. Simpson in this particular case, that you include all possible pairs; isn't that right?
DR. WEIR: That's correct, yes.
MR. NEUFELD: And if you left out some pairs, then your number could be biased against Mr. Simpson; isn't that connect?
DR. WEIR: It sounds as though you are finding that I left one out. I hope I haven't.
MR. NEUFELD: Let me ask you a question, DR. WEIR: When were you first asked to prepare statistical estimates of mixtures in this case?
DR. WEIR: It was probably two weeks ago.
MR. NEUFELD: Well, didn't you receive a call from one of the Prosecutors back in the middle of May when Robin Cotton was on the witness stand about a request to provide statistical estimates of the mixtures in this case?
DR. WEIR: Yes. That was the time. Is that more than two weeks ago?
MR. NEUFELD: It was about five weeks ago.
DR. WEIR: All right. Time flies.
MR. NEUFELD: In fact, you issued a report--preliminary report as early as May 11, 1995, didn't you?
DR. WEIR: Yes, yes, that's correct. The time Robin Cotton was testifying the issue of mixtures came up.
MR. NEUFELD: All right.
THE COURT: Excuse me, doctor. Would you allow Mr. Neufeld to finish asking the question before you start answering.
DR. WEIR: Sure.
MR. NEUFELD: Let's take a look at one of the tables, if you will, in the report that you submitted to the Court in this case. I'm referring to page 33, Mr. Clarke, which is table 24-B. Could you put it up on the elmo, please. May I have it put up on the elmo, your Honor?
THE COURT: Certainly. And Mr. Neufeld, 10:30.
MR. NEUFELD: 10:30?
THE COURT: Yes.
MR. NEUFELD: 10:30? You know something, I think that is the same mistake I made last time, same issue.
THE COURT: Just giving you a head's up.
MR. NEUFELD: That is what happened when I get a little focused. I apologize, your Honor.
THE COURT: Proceed.
MR. NEUFELD: What exhibit?
THE COURT: Table 24-B. Mrs. Robertson, Defense exhibit 408?
MR. NEUFELD: Defense exhibit, your Honor.
THE COURT: 408, Defense.
MR. HARRIS: People's.
THE COURT: Should be a 10 series.
MR. DOUGLAS: 11.
THE CLERK: The next one is 1198.
THE COURT: 1198, my mistake. Proceed, thank you.
(Deft's 1198 for id = document)
MR. NEUFELD: Now, Dr. Weir maybe we could move the board.
DR. WEIR: I can't read that.
THE COURT: Doctor, do you have your own page in front of you?
DR. WEIR: Yes.
THE COURT: All right. Mr. Neufeld.
MR. NEUFELD: Thank you.
MR. NEUFELD: Dr. Weir, you said that in preparation for this report that you reviewed at least the final reports of the DOJ and Cellmark laboratories; is that correct?
DR. WEIR: That's right.
MR. NEUFELD: And you also said that you made a number of phone calls, at least to Mr. Sims, to assist you in interpreting the data; is that also correct?
DR. WEIR: To both Robin Cotton and Gary Sims.
MR. NEUFELD: Now, in this case, Dr. Weir, both Gary--I'm sorry, are you somewhat familiar with how DQ-Alpha typing is done?
DR. WEIR: Not in any great detail, no.
MR. NEUFELD: That is why you had to rely on what Mr. Sims and Robin Cotton told you; is that right?
DR. WEIR: That's right, yes.
MR. NEUFELD: In this case, Dr. Weir, both Gary Sims and Robin Cotton testified that since there is no specific dot on the DQ-Alpha strip for the allele 1.2, it is concluded that it exists through inference and other dots or the absence of other dots on that strip. Have you heard about that?
DR. WEIR: Yes. I'm not completely clear of the details, but I understand that there are cases where the 1.2 may be present but we can't tell whether it is present or not.
MR. NEUFELD: Well, didn't you notice, sir, on the reports that you read from DOJ, that whenever there is a mixture and the mixture included both a 1.3 and a 4 allele, the 1.2 allele may be masked?
DR. WEIR: Well, the records I think aren't on the board anyway, so 1.2 possible and I think yesterday that I have ignored these qualifications. If the 1.2 is listed, I have assumed that it is present.
MR. NEUFELD: Well, Dr. Weir, you said, I believe, yesterday, that there were some instances where an allele may be--a dot may be very faint, may be very weak and in those situations you ignored the description of weak or faint?
DR. WEIR: No, I never--
MR. NEUFELD: Umm, didn't you say that, sir, yesterday?
DR. WEIR: I said nothing about dots being weak or faint.
MR. NEUFELD: Well, in the situation, sir, where the 1.2 allele is simply masked in a mixture by the presence of these other alleles, as has already been testified to, it is possible, is it not, that when you describe the various pairs that you have to list the pairs as if the 1.2 allele was there and then list the pairs as if the 1.2 allele wasn't there; isn't that correct?
DR. WEIR: I'm not sure about that. I've assumed that it was there because on the board it was listed as being there, as possibly being there, and as I said, I have ignored the words "Possible" or "Trace" or whatever, so I've just taken my calculations for those four alleles.
MR. NEUFELD: Well, let me ask you this: Were you told by Gary Sims or by Robin Cotton, that when we say possible 1.2 in a mixture situation, we mean that there may not be any 1.2 there at all? Didn't they tell you that?
DR. WEIR: They may have. I don't recall specifically that conversation.
MR. NEUFELD: So it is your position, sir, that in this particular table, for instance, that the reason you did not consider the possibility of no 1.2 allele, is because whenever it is listed as possible you included it in the calculations as if it was there?
DR. WEIR: That's what I've done, yes. I've taken every allele listed on the board as being there.
MR. NEUFELD: And that is your position throughout, sir?
MR. CLARKE: I'm sorry, object to the form of the question.
THE COURT: Overruled.
MR. NEUFELD: Hum?
DR. WEIR: I don't know if it is a position. That is what I have done.
MR. NEUFELD: Well, Dr. Weir, I call your attention to table--(Discussion held off the record between Defense counsel.)
MR. NEUFELD: If I may, I call your attention to--I would like to put up as a next exhibit, Dr. Weir's table 25-A and 25-B.
THE COURT: All right. That will be People's 1199--excuse me, Defense 1199.
(Deft's 1199 for id = document)
MR. NEUFELD: Do you see that, Dr. Weir?
DR. WEIR: Yes, I do.
MR. NEUFELD: Dr. Weir, on this table, table 26-A and B--I'm sorry, 25-A and B--25-A and B--
DR. WEIR: Yes.
MR. NEUFELD: --you see the little asterisk you have there underneath the line?
DR. WEIR: I see it, yes.
MR. NEUFELD: And you see where it says "Allele 1.2 if present would not be detected"?
DR. WEIR: Yes.
MR. NEUFELD: Now, in this particular table, Dr. Weir, given the statement results from the DOJ laboratory--
DR. WEIR: Yes.
MR. NEUFELD: --as you have for table 24-B, the table I just showed you, in this instance you chose to accept the possibility that the allele, namely, 1.2 which is the possible allele, could be masked and therefore not be there?
DR. WEIR: Yes.
MR. NEUFELD: Isn't that correct, sir?
DR. WEIR: Well, I don't know what you mean. The statement holds of course all high calculations include the possibility of it being there.
MR. NEUFELD: And your calculations also include, in this particular table, the possibility of it not being there; isn't that right?
DR. WEIR: That's correct. I have--I have a whole range of possibilities either with it being present or not present.
MR. NEUFELD: So for table 25-A, which were certain mixed stains on the glove, G1 and G4, you chose to include both the frequencies, given the assumption that allele 1.2 is there and the assumption that allele 1.2 is not there; isn't that correct, sir?
DR. WEIR: That looks like right, yes.
MR. NEUFELD: Whereas in the table--by the way, as a result of taking that approach, sir, in table 25-A, how many different pairs did you have to sum up for the DQ-Alpha type?
DR. WEIR: It looks like 18.
MR. NEUFELD: And--one moment. Just so the jury can be clear on this as well, are the lists of pairs that you summed up reflected along this first column?
DR. WEIR: Those two columns.
MR. NEUFELD: Right. Well, it is a pair--this would be the first person and this would be the genotype of the second person, correct, (Indicating)?
DR. WEIR: That's right.
MR. NEUFELD: And so you have 18 different frequencies that you sum up on this particular table for those particular items; isn't that correct?
DR. WEIR: That's correct.
MR. NEUFELD: And you did that in a situation where there is a possible 1.2 allele which may or may not actually be there because of the masking phenomena; isn't that correct?
DR. WEIR: That's correct.
MR. NEUFELD: Now, going back, sir, to--to table 24-A--
THE COURT: 1198.
MR. NEUFELD: --exhibit 1198, again the same, it being a mixture; is that correct, sir?
DR. WEIR: That is what--that is a mixture, yes.
MR. NEUFELD: And consequently, the 1.2 allele in that particular mixture may actually be there or may actually not be there; isn't that correct?
DR. WEIR: That's correct.
MR. NEUFELD: But this time, sir, unlike the other items on the glove, you chose not to include the frequencies of those pairs assuming the 1.2 allele wasn't there; isn't that correct?
DR. WEIR: I think you found my mistake, Mr. Neufeld.
MR. NEUFELD: Well, let's talk about what that mistake means, sir. In this particular instance, Dr. Weir, your calculations are based only on summing frequencies for six pairs; is that right?
DR. WEIR: That's right.
MR. NEUFELD: And would you agree, sir, that if you sum the frequencies for an additional dozen pairs, which would be three times as many as you started off with, you would arrive at a probability for that mixture which would be much more helpful to Mr. Simpson; isn't that correct?
DR. WEIR: I might question the word "Match." It depends on the frequency of the 1.2 alleles.
MR. NEUFELD: Well--
DR. WEIR: It is kind of interesting that the frequencies in both these tables are comparable in magnitude.
MR. NEUFELD: Sir, would you agree and didn't you say a little while ago on cross-examination, that if you add additional pairs of frequencies you will arrive at a frequency that is more common than if you add fewer pairs of frequencies?
DR. WEIR: That's correct.
MR. CLARKE: I'm sorry. Objection. I think counsel is arguing with the witness.
THE COURT: Overruled.
MR. NEUFELD: And sir, on the exhibit--one moment--
(Discussion held off the record between Defense counsel.)
THE COURT: All right. Mr. Scheck, you have put up which exhibit?
MR. SCHECK: It is 272-B, the November frequency board.
THE COURT: Thank you. Mr. Neufeld.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And sir, in the table in which you actually did the additional calculations--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: --for the glove items G1 and G4--
THE COURT: Referring to table 25-B, Defense 1199.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: --on G--item G1 is a stain on the glove where it is not suggested that Mr. Simpson could be a contributor; isn't that correct?
DR. WEIR: I believe he is listed as not--that's right, he is not listed as not excluded.
MR. NEUFELD: So he is not considered a possible contributor there; is that right? He is not listed in the "Not excluded" category?
DR. WEIR: Can we agree that he is excluded?
MR. NEUFELD: All right. And he is also excluded on G4; is he not?
DR. WEIR: Yes, the profiles are the same.
MR. NEUFELD: Right. And so on your calculations for those stains that are mixtures where Mr. Simpson is excluded, you've summed up additional pairs to--which would make the frequency somewhat more common; is that correct?
DR. WEIR: I've summed the table 25-B is correct. It looks to me as though table 24-B is incorrect.
MR. NEUFELD: And sir, this only is 24---
DR. WEIR: When I do calculations, I do not consider any forensic implications, and if you are suggesting that I do, I will disabuse you of that right now.
MR. NEUFELD: Dr. Weir, you will--one moment, your Honor.
THE COURT: Go ahead.
MR. NEUFELD: I would also like you to look at table 24-A--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment, your Honor.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, for--unlike the items of evidence where you did sum up the additional pairs, sir, table 24-A reflects items 303, 304 and 305 in the Bronco; is that correct?
DR. WEIR: That's correct.
MR. NEUFELD: And--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Your Honor, this is--
THE COURT: All right. People's 260.
MR. SCHECK: Yes.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Thank you.
MR. NEUFELD: And Dr. Weir, for items 303, 304 and 305--sorry--on the console, Mr. Simpson cannot be excluded; is that correct?
DR. WEIR: That's correct.
MR. NEUFELD: And the calculations you did for the frequency of the mixtures for those stains fail to include the additional pairings; isn't that correct?
DR. WEIR: That's correct, yes.
MR. NEUFELD: And by failing to include the additional pairings in these samples, in these items, which do not exclude Mr. Simpson, the numbers that are arrived at by you and put on that board are biased against Mr. Simpson; isn't that correct?
DR. WEIR: As it turns out it looks that way, yes.
MR. NEUFELD: And sir, would you agree that you made this same error, which is biased against Mr. Simpson, not only on items 303, 304 and 305, but also on item 31 in the Bronco?
DR. WEIR: I don't know.
MR. NEUFELD: Would you please look at your notes.
DR. WEIR: Help me with the page number.
MR. NEUFELD: Would you please look at page 32, table 23-A and B.
MR. CLARKE: Your Honor, I object. I think counsel is arguing with the witness at this point.
THE COURT: Overruled. Mr. Neufeld.
MR. NEUFELD: Am I right, sir, that not only did you make this same mistake which has the effect of being biased against Mr. Simpson for items 303, 304 and 305, but also as to item 31?
DR. WEIR: Well, this item assumes that all the alleles listed on the board are present and I have made calculations accordingly.
MR. NEUFELD: Well, but of course, as you know from what you did on that other item, sir, on the glove, you know that you can't necessarily make that assumption that you assume that it is either there or then assume it is not there to consider the other pairs or frequencies; isn't that correct?
MR. CLARKE: Objection, argumentative.
THE COURT: Overruled.
DR. WEIR: On item 31, I did not see the word "Possible" so I conclude that it is present.
MR. NEUFELD: Were you told about how the system functions, though, because of this masking phenomena?
DR. WEIR: All my analyses are based on the reported profiles, whether or not they match, and their details. I have generally ignored, although apparently sometimes I didn't, but in this case there is no suggestion that the 2.1 allele is not there, so I assume it was there.
MR. NEUFELD: Sir, but isn't it--when you put on your own report, with respect to other items, both on table 25-A and again on table 26-A, if you care to look at 26-A as well--
DR. WEIR: I believe in those items the word "Possible" was listed on the board and on item 31 it was not listed as being possible, so I assumed the allele is there.
MR. NEUFELD: Well, you put that asterisk on the report. Before you did that, sir, did you ask either Gary Sims or Robin Cotton what is this thing about the 1.2 allele, that it is sometimes masked and sometimes isn't, before you decided to put in that asterisk and make those different computations?
DR. WEIR: I didn't decide to put in the asterisk arbitrarily. I put it in--at least my intention was and at least in my original intention back in May, to assume it was either present or absent in those cases where the word "Possible" was written. The word "Possible" is not written on item 31.
MR. NEUFELD: So you are saying that the reason you didn't do it on table 23-A is because the word "Possible" wasn't written in next to the 1.2 allele?
DR. WEIR: That is the only reason that would be consistent with what I did, and I assumed that is my reasoning at that time.
MR. NEUFELD: Well, now, when you say you assume that reasoning, do you know that to be true or are you guessing on that?
DR. WEIR: Well, I'm saying it is true. I can't think of every thought process I've had over the last several weeks, but that would--thinking about it now, and the way I do operate, I'm sure that is what I did.
MR. NEUFELD: Well, Dr. Weir--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, I would like to show you table 23-A.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Exhibit 1200, and I will move the board.
(Deft's 1200 for id = document)
MR. NEUFELD: Now, can you see, Dr. Weir, that for this particular table you were computing the frequencies of the mixture both for item 31 and I believe also for one of the glove stains; is that correct?
DR. WEIR: Yes. They have the same profiles.
MR. NEUFELD: And is that what the sentence says at the very top there, sir, the top of the table?
DR. WEIR: Yes. It says items 31 and G10.
MR. NEUFELD: And sir, on the report that you received from the Department of Justice with respect to item G10 which you have had front of you, I hope--sir, do you have that report?
DR. WEIR: No, I don't. I should say I based my calculations on these charts; not final reports.
MR. NEUFELD: Sir, did you tell us a little while ago that you actually reviewed the final reports of the Department of Justice and Cellmark?
DR. WEIR: Yes. Those statements are not inconsistent. I certainly reviewed them. I don't have them in front of me. All I'm saying is that after having reviewed the report, when I came to sit down and type in entries into the program to do these mixture calculations, I relied on these charts.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment.
THE COURT: All right. Would this be a good spot?
MR. NEUFELD: Just one last question.
MR. NEUFELD: Isn't it a fact, sir, that with respect to the report from DOJ regarding stain G10 on the glove, which also is listed as not excluding Mr. Simpson, that report from DOJ told you specifically that the 1.2 allele was just possible; isn't that correct?
DR. WEIR: I would have to look at the chart.
(Brief pause.)
DR. WEIR: That's correct.
MR. NEUFELD: All right. So here again, Dr. Weir, you did the same calculation for G10 on the glove, a stain that allegedly cannot exclude Mr. Simpson? Even though you knew that the 1.2 allele was simply a possible allele, you did the same calculations, which as it turns out, are biased against Mr. Simpson; isn't that correct.
MR. CLARKE: Object to the form of the question.
THE COURT: Sustained.
MR. NEUFELD: Isn't it correct, sir, that in your calculations for G10 you only summed the frequencies of six pairs of genotypes?
DR. WEIR: That's the way I have reported it. In fact, I didn't do any calculations on G10. I just lumped them in with the 31.
MR. NEUFELD: But your report, sir, says this is the correct data for item 31 and G10, does it not?
DR. WEIR: That is what it implies, yes.
MR. NEUFELD: Yes. And in fact the correct way to do G10, if the 1.2 allele is simply possible, is to have the additional twelve pairs that you had on those items where you considered the 1.2 allele is possible; isn't that correct, sir?
DR. WEIR: That is certainly true.
MR. NEUFELD: We could break now.
THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning break. Please remember all my admonitions to you. Do not discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you. And we will stand in recess for fifteen minutes. Dr. Weir, you can step down.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. The necessary parties are again present. Deputy Magnera, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And, Dr. Weir, would you resume the witness stand, please. All right. Good morning again, doctor.
DR. WEIR: Good morning.
THE COURT: Mr. Neufeld, you may continue with your cross-examination.
MR. NEUFELD: Thank you, your Honor.
THE COURT: And, Mr. Neufeld, this is--I'm sorry. Mr. Harris?
MR. HARRIS: 272-B.
THE COURT: 272-B.
MR. NEUFELD: Thank you.
MR. NEUFELD: And I think you said, Dr. Weir, that your reduced Xerox copy of the exhibit boards is identical to the large boards that we have here in court; is that correct?
DR. WEIR: Yes. That's right.
MR. NEUFELD: And so, sir, even on your reduced exhibit board that you relied upon when you wrote these tables, on your copy, sir, for item G10, it says on your copy a possible 1.2 allele, correct?
DR. WEIR: Yes.
MR. NEUFELD: Okay. So you had that information available to you when you prepared these tables; is that right?
DR. WEIR: That's right.
MR. NEUFELD: And, sir, these same biased mistakes that you made for these particular items that we just described--
THE COURT: Counsel, why don't you rephrase that question, please.
MR. NEUFELD: Sure.
MR. NEUFELD: The same mistakes you made in your calculations and computations for items 303, 304, 305, 31 and G10, those mistakes apply to your calculations for your two-donor theory; is that correct?
MR. CLARKE: Objection. Assumes facts not in evidence as phrased.
THE COURT: Overruled.
DR. WEIR: I should probably clarify what we're talking about. We're talking about calculations involving DQ-Alpha on the mixed stains. If there was a possibility of there being a 1.2--and it's not seen, so we don't know whether it's present or not present--then the calculation should include both those possibilities for all my calculations. And if I did not include them, then I'm sincerely sorry and I'm also embarrassed. And I haven't finished. The DQ-Alpha results are, of course, part of the profile frequencies I report. They are generally--they are an important part. I don't tend to minimize that. They are not the most important part in the sense that their frequencies are not the most discriminating.
MR. NEUFELD: Dr. Weir, the same mistake that you made on each of those items for your two-donor calculations also applies to all of your three-donor calculations for the same items; is that correct, sir?
DR. WEIR: I think I just said that all my calculations involving DQ-Alpha on the mixed stains, if there was a possibility of 1.2 of not being seen, should have included both the possibilities. If I did not, then it was an error.
MR. NEUFELD: And in each of the instances, sir, where you made that error, those were items where, according to the Prosecution, Mr. Simpson's profile could not be excluded; is that correct?
DR. WEIR: I don't know that.
MR. NEUFELD: Would you care to look at the board or your smaller versions of the boards to confirm if each of those five items Mr. Simpson is listed in the not excluded category?
DR. WEIR: Well, let's go through them one at a time. I forget which ones they are.
MR. NEUFELD: 303, 304 and 305, the Bronco console.
DR. WEIR: That's correct.
MR. NEUFELD: Item 31 on the Bronco console?
DR. WEIR: Well, I thought that we had said that I was--31, it was a definite call that the 1.2 allele was present.
MR. NEUFELD: Well, assume for the moment, sir, that based on the testimony of both Dr. Cotton and Mr. Sims, that whenever you have a mixture and you see the 1.3 and the 4 alleles, that you don't know whether the 1.2 is there or not there. Would the same mistake apply to item 31?
MR. CLARKE: Objection. Assumes facts not in evidence, misstates the evidence.
THE COURT: Sustained. Rephrase the question.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Assume for the moment, sir, that if you have a mixture, as you have in item 31, where you see the 1.1, the 1.3 and the 4 alleles, that given the nature of the system, one cannot tell whether the 1.2 allele is there or not there.
MR. CLARKE: Objection. Misstates the evidence.
THE COURT: Overruled.
DR. WEIR: My calculations on item 31 with the alleles that was stated to be present, and the 1.2 is stated to be present.
MR. NEUFELD: So what I'm asking you, sir, I would like you to assume for the purpose of this hypothetical that in a mixture with a 1.1, 1.3 and 4 alleles are actually present, that the examiner can't tell whether the 1.2 allele is there or not. In that situation, sir, would the same mistake be made in your calculations on item 31 as for the other items that we just described?
MR. CLARKE: Objection. Improper hypothetical.
THE COURT: Overruled.
DR. WEIR: If the allele--if we aren't certain about whether the allele is present or not, then it should have been included in the calculations.
MR. NEUFELD: Okay. And item 31 is another item where, according to the Prosecution exhibit, Mr. Simpson's profile is not excluded; is that correct?
DR. WEIR: Mr. Simpson is not excluded. However, that had nothing to do with my calculations.
MR. NEUFELD: And, sir, on G10, the glove item, the final item in this group, Mr. Simpson is included in that group as well; is he not?
DR. WEIR: He is not excluded.
MR. NEUFELD: Okay.
DR. WEIR: That's correct. Not excluded, yes.
MR. NEUFELD: Now, in this case, Dr. Weir, for every stain that is a mixture, there could possibly be two contributors, correct?
DR. WEIR: Umm--
MR. NEUFELD: Excuse me?
DR. WEIR: I was thinking.
MR. NEUFELD: Oh.
DR. WEIR: What we know from there being a mixture, there was more than one contributor. So, yes, there may possibly be two contributors.
MR. NEUFELD: And there may possibly be three?
DR. WEIR: There may possibly be three, although it's less likely given the evidence we see in the profile.
MR. NEUFELD: And there may possibly be four?
DR. WEIR: We are talking about increasingly unlikely possibilities.
MR. NEUFELD: All right. But there's no way to state with any certainty how many contributors there are; isn't that correct?
DR. WEIR: If we don't know the contributors to any stain in the whole case, if we don't know who contributed, we don't know who contributed period.
MR. NEUFELD: Well, it's not just a question of who, but as to the mixtures, one cannot state with any degree of certainty how many contributors there are; isn't that correct?
DR. WEIR: That's just what I said. We don't know who contributed period. We don't know how many they were, who they were, what their ethnic background. We don't know who they were period.
MR. NEUFELD: Now, let's look at item 29 if you would.
(Brief pause.)
THE COURT: Mr. Harris?
MR. SCHECK: 260.
THE COURT: Thank you.
MR. NEUFELD: Now, in your approach that you offered this jury yesterday afternoon and this morning, sir, you provided a range of frequencies based on different assumptions, is that correct, for the mixtures?
DR. WEIR: We provided some frequencies of those mixtures were given by different numbers of contributors.
MR. NEUFELD: And they are based on assumptions though; is that correct?
DR. WEIR: I'm not sure I understand. All the calculations assume a lot of things like independence--
MR. NEUFELD: And they also assume the number?
MR. CLARKE: I'm sorry. Could the witness finish his answer?
THE COURT: Yes.
MR. NEUFELD: Sorry. I thought he was. I apologize, Dr. Weir.
DR. WEIR: I forget.
MR. NEUFELD: Would you like to say something else, sir?
DR. WEIR: I believe not.
MR. NEUFELD: Okay. They also assume in some of these calculations that there were two donors as opposed to three; is that right?
DR. WEIR: Well, that's--I wouldn't say that was an assumption. Those are the frequencies with which we find the mixed stains if there were two contributors or if there were three or if there were four. There's no assumption being made. That's just the result when there were that number of contributors.
MR. NEUFELD: And, obviously, according to your approach, the number changes depending upon how many contributors you start off with; isn't that correct?
DR. WEIR: Oh, I think we've demonstrated that.
MR. NEUFELD: Now, are you familiar with the report entitled "DNA technology and forensic science" published by the national research council of the national academy of science?
DR. WEIR: Yes, sir.
MR. NEUFELD: In fact, you're not just familiar with it, sir, you actually testified before that--that committee that authored this book; isn't that correct?
DR. WEIR: That's true.
MR. NEUFELD: And you made submissions of data to that committee that authored this book; did you not?
DR. WEIR: Not quite. I provided them with a prepublication copy of my paper subsequently published on the FBI's data. So the committee was aware of my findings about independence in the FBI's data. And, in fact, in the report, they say that I had demonstrated independence of the alleles in the FBI's database.
MR. NEUFELD: And we'll come back to that in a little while, Dr. Weir, but right now, let me ask you this. Not only did you testify before the NRC committee and offer them a prepublication copy of your article, but after the report came out, you actually wrote letters and other publications criticizing this report, didn't you?
DR. WEIR: Yes. I was extremely disappointed by the report and some of the aspects. It does not--it did not then and does not reflect proper scientific approaches to the forensic--to the statistical interpretation of forensic data.
MR. NEUFELD: And that's your opinion, sir, correct?
DR. WEIR: No. I'm afraid it's not. I'm here under oath to tell the truth, and I have to--I have no choice but to tell you, the report contains mistakes. That is not an opinion.
MR. NEUFELD: Well, Dr. Weir, would you agree that there's a controversy about some of the positions taken in the NRC report?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled. You can answer the question.
DR. WEIR: There is no controversy over the fact that there are errors in the report.
MR. NEUFELD: We'll come back to that in a little while, Dr. Weir. First, however, the report actually has a sentence describing recommending an approach to handling the interpretation of mixed stains such as are found in this case; isn't that correct?
DR. WEIR: There is one sentence in the report.
MR. NEUFELD: And that sentence in the report is one which you disagree with; isn't that correct?
DR. WEIR: I don't think I would say so. I have some confidence after all in the authors of that report. So I'm--I can't not think otherwise, that when they wrote that sentence, they meant to say the correct thing. It could be interpreted either way. I would give them the benefit of the doubt.
MR. NEUFELD: Well, Dr. Weir, you mentioned earlier I think under direct examination that you prepared a report in connection with this case.
DR. WEIR: That's right.
MR. NEUFELD: Can I call your attention, sir, to page 10 of your report?
DR. WEIR: You certainly may.
MR. NEUFELD: Did you include in your report the following quote, sir? "Simply adding the frequencies of all possible contributors to a mixture--and then in parenthesis, you have, "NRC 1992," closed parenthesis--"Ignores the essential nature of a mixture. It represents the contributions of more than one person." Did you write that in your report?
DR. WEIR: Yes, I wrote that in my report. I'm just trying to think what that sentence is actually saying here. If it's talking about--
MR. NEUFELD: Well, sir, I'm sorry.
MR. NEUFELD: Your Honor, I would ask that the Court ask the witness to be responsive.
THE COURT: Hold on. Hold on. Hold on. The question was, did you write that; yes or no? The answer is in the record. Ask your next question.
MR. NEUFELD: Thank you.
MR. NEUFELD: And would you agree, sir, that in that sentence, you are citing the national academy report for the proposition that in a mixed stain, one simply adds the frequencies of all possible contributors to the mixture?
DR. WEIR: That's true.
MR. NEUFELD: And you are saying in that sentence that you are critical of the NRC position because it ignores the essential--because in your opinion, it ignores what you call an essential fact?
DR. WEIR: Could you try that sentence--I've lost the train of the question.
MR. NEUFELD: Well, in that sentence, are you not only describing what the NRC position is, namely, that it calls for the adding of the frequencies of all possible--that it simply adds the frequencies of all possible contributors to a mixture, but you interpret it to mean that it is simply adding the frequencies of individuals, and by doing so, it ignores in your words the essential nature of a mixture?
DR. WEIR: Yes. If the NRC report doesn't--if that was the intention of the sentence, that we should add up the frequencies of single contributors, that ignores the fact that there was a mixture, and that would be wrong.
MR. NEUFELD: I'm sorry. Well, when you wrote this sentence in your report, sir, you didn't state it as alternatives; well, if the NRC meant this, then I disagree with the NRC, but if they meant something else, then I agree with the NRC, did you?
DR. WEIR: I didn't write it there, but that's what I mean. That's what I think.
MR. NEUFELD: Sir, isn't it true that in the sentence, however, you simply state that the NRC is calling for the--the summing up of the individual frequencies and that you're critical of that? Isn't that what the sentence says?
DR. WEIR: That's what the sentence says, but I think what I think. What I believe is that if the sentence means as I state there, a single contributor, then it's not right. If we could interpret it kindly to mean multiple contributors, then it would be appropriate to add the frequencies. And I'm sorry if my language isn't as precise as the NRC's report.
MR. NEUFELD: Now, Dr. Weir, in your report, I call your attention to table 30, please, found on page 39, and also table 29C on the previous page.
DR. WEIR: I have them.
MR. NEUFELD: Okay. According to your report, you come up with 30 different possible frequencies for item 29 just for a two-donor or three-donor assumption, if you will; is that correct?
DR. WEIR: Well, I'm not sure. We need to look. If there are two contributors to the mixed item--and I'm using four databases to do these calculations. All these calculations at this point are PCR profiles, and I'm using the FBI's PCR databases, and there are four of them. Now, I don't know--couldn't know who these unknown contributors could be. I'm going to assign them frequencies from the data I have available, which is the FBI's. And there are four databases. So it looks like 10 possible ways we could have pairs of contributors, and then the possible ways of getting three contributors is more than that and it's probably 20. I'm not sure of the exact number.
MR. NEUFELD: Okay. So that would mean that between those two alone, there's 30 different permutations, 30 different frequencies that you articulate for the meaning of the mixture; is that correct?
DR. WEIR: Well, that's not quite right. If there's a mixture and there were two contributors that we don't know who they were and there were 10 possible--well, it's not even possible scenarios. It's the 10 possible sets of data that I have. If there were three contributors and I have four databases, it looks like there are 20 combinations of the databases I could use. So I wouldn't add them together. If there were two, I have 10 possibilities. If there were three contributors, I would have 20 possibilities. There's a lot of different ways of having three people from different groups.
MR. NEUFELD: If one construed the NRC method that I just read to you and that you cite in--I'm sorry. Let me--you cite the NRC method. Let me read to you the sentence as it actually appears on page 59 of the national research council report, Dr. Weir.
DR. WEIR: Please do.
MR. NEUFELD: It says: "If a suspect's pattern is found within the mixed pattern, the appropriate frequency to assign such a `match' is the sum of the frequencies of all genotypes that are contained within. That is, that are a subset of the mixed pattern." Are you familiar with that sentence?
DR. WEIR: Yes, I am.
MR. NEUFELD: Okay. Now, if the NRC meant by that that you simply add up the genotypes of all the different individuals who could possibly contribute to that, that would be the reason that you were critical of it in your report; is that correct, sir?
DR. WEIR: If they meant to add up the frequencies of single people, they would be wrong. It would be very misleading to do that as an interpretation of the mixed stains. So I was being very critical.
THE COURT: Doctor, could you pull the microphone closer to you, please. Thank you.
MR. NEUFELD: Well, let me ask you a simple question I hope, sir.
DR. WEIR: Thank you.
MR. NEUFELD: For item 29, according to Cellmark, they see three DQ-Alpha alleles, correct?
DR. WEIR: They report a 1.1, a 1.2 and a 4.
MR. NEUFELD: Okay. And you would agree, sir, that Mr. Simpson's profile on the reference sample is a 1.1, 1.2; is that correct?
DR. WEIR: That's right, yes.
MR. NEUFELD: So he cannot be excluded.
DR. WEIR: He cannot be excluded.
MR. NEUFELD: And you would also agree that Nicole Brown Simpson's profile is a 1.1, 1.1, correct?
DR. WEIR: Yes. That's correct.
MR. NEUFELD: And she can't be excluded?
DR. WEIR: On the basis of the DQ-Alpha typing from Cellmark alone, she could not be excluded.
MR. NEUFELD: Well, she also could not be excluded on the basis of a polymarker typing as well; isn't that correct?
DR. WEIR: I'm not sure. I would have to look at the details.
MR. NEUFELD: Well, do you have that report handy?
DR. WEIR: Yes. I'm just--so this is item--I need to be careful. This is item 29.
MR. NEUFELD: Yes.
DR. WEIR: The polymarker from Cellmark. There are five of these loci and the mixture has--at LDLR has alleles a and B and Nicole Brown has an a and a B. So she's not excluded. GYPA has A and B as does Nicole Brown. She's not excluded. HBGG has an A, a B and a C. Nicole Brown has an A and a B. Not excluded. D7S8 has an A and a B and a mixture, and also Nicole Brown is AB. Not excluded. And GC, the mixture has an A, a B and a C and Nicole Brown has an AC. So she's not excluded on any of those systems.
MR. NEUFELD: And neither is Mr. Simpson; isn't that correct?
DR. WEIR: Mr. Simpson's profile is not the same, but he is also not excluded.
MR. NEUFELD: So the one allele in this mixture which neither Mr. Simpson nor Nicole Brown Simpson can account for is the number 4 allele, correct?
DR. WEIR: Well, now we have switched, have we, to the DOJ's PCR determination?
MR. NEUFELD: No. I'm looking at Cellmark's.
DR. WEIR: Oh, excuse me. The DQ-Alpha, the allele 4, that's right. That's not contained in those profiles of Simpson or brown.
MR. NEUFELD: Okay. And you also know and I think you stated in your report and Dr. Cotton has already testified in this case that Mr. Goldman is excluded from the--from being a contributor to this stain as well; isn't that correct?
DR. WEIR: Yes. Mr. Goldman has a 1.3, which is not seen in the mixture. So he was excluded.
MR. NEUFELD: So the question, sir, is, who contributed the number 4 allele. And what I want you to do, Dr. Weir, is simply answer one question for me. Is there a method that you can utilize to determine what percentage of the population could contribute the 4 allele to this mixture? Can that--can that question be answered?
DR. WEIR: It can be answered, but I wouldn't answer it in this context. I mean, I wouldn't do that calculation because it would have no bearing--
MR. NEUFELD: Your Honor, if you would instruct the witness to be responsive. The question simply asked him can he do it.
THE COURT: No. No. He's entitled to explain his answer, counsel.
DR. WEIR: I would not do such a calculation to interpret a mixture. We--these--these mixtures stains are not really any different from the other ones. They are profiles of DNA and they have various characteristics. The point of what we're doing is to try and say how likely would we see that profile if the--if the Prosecution's theory was correct and they have the--they say they know who contributed, then what we see is as we would expect. If we know who the contributors were and we see the profiles, then we don't have any surprises.
THE COURT: Next question.
MR. NEUFELD: Sir, what I want to ask you to do--I'm sorry. Can you though do the calculations that I simply requested?
DR. WEIR: I can, but I wouldn't.
MR. NEUFELD: When you say you wouldn't, you mean, they're not the ones that you think are appropriate; is that correct, sir?
DR. WEIR: No. They are not appropriate.
MR. NEUFELD: Well, sir, the question that I'm asking you is the very question or the very methods described in the NRC report which in your report you state that you disagree with; isn't that correct?
DR. WEIR: I think I followed that statement. The--the--if the NRC's recommending add up the single contributors, then I disagree because it's wrong.
MR. NEUFELD: Now, I want you to follow for this jury, if you would, the approach described in the NRC report which you think is wrong just so we can provide this jury with some other frequencies.
MR. CLARKE: Objection. Misstates the evidence.
THE COURT: Rephrase the question.
MR. NEUFELD: What I would like you to do, sir, is, using the data that was available to Cellmark in this case, I would like you to calculate the frequencies of all people in the population who have the potential of contributing the number 4 allele to this mixture. And what I would like you to rely on, sir, in doing your calculations--
MR. NEUFELD: What's next in--
THE CLERK: 1201.
THE COURT: 1201.
MR. NEUFELD: 1201? Ask this be marked as Defendant's 1201. I've shown a copy of it to--
THE COURT: Is this the FBI database?
MR. NEUFELD: No. Cellmark's.
THE COURT: Cellmark. All right.
(Deft's 1201 for id = Cellmark database)
MR. NEUFELD: Showing the witness 1201. You said you've worked with Cellmark over the years, sir?
DR. WEIR: Yes.
MR. NEUFELD: You're a consultant to Cellmark?
DR. WEIR: No, I'm not a consultant, but my university has a contract with them.
MR. NEUFELD: And the university has a contract to do consultant work for Cellmark?
DR. WEIR: The university has a contractual arrangement to undertake data analysis. I don't think that's a consultancy.
(Brief pause.)
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Weir, have you ever seen this database before that I put before you?
DR. WEIR: This is not a database. This is a list of frequencies, and I have seen it, yes.
MR. NEUFELD: I'm sorry. Okay. And this is, as you know, the frequencies and the frequency table that Cellmark says it uses when it does its calculations for DQ-Alpha profiles; is that correct?
DR. WEIR: Yes. That's true.
MR. NEUFELD: All right. Now, actually what I would like to do, sir, is ask you one preliminary question before we get to the question about the 4 allele. And that question is, sir, what I would like you to calculate is the percentage of the population that cannot be excluded as contributing to this mixture, okay? That's a very different question than the question that you answered before to the jury, but it's a question I would like you to answer using that database.
DR. WEIR: I'm very uncomfortable in doing any calculations I know to be wrong and not relevant to this data.
MR. NEUFELD: I appreciate--
DR. WEIR: I don't--I don't feel comfortable at all you using my reputation to give credence to some numbers which I don't believe should be calculated.
MR. NEUFELD: I appreciate that, sir, but I'm going to ask you to just simply answer my questions.
DR. WEIR: And I'll repeat my objection to doing so. I will do so if instructed, but I object very strongly.
MR. CLARKE: I'm going to enter an objection under 352 based on this evidence as misleading and confusing based on the evidence before the Court and the jury as well as irrelevant.
MR. NEUFELD: Your Honor, it's a speaking objection.
THE COURT: It is. Sidebar, court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at the sidebar. What's your authority for being able to force an expert witness to make calculations that he doesn't agree with?
MR. NEUFELD: It's not a question of making calculations. I am allowed to ask him a question, and the question--
THE COURT: Keep your voice down.
MR. NEUFELD: The question I asked him is, can one calculate the frequencies of all possible contributors to this mixture. He said, "One can, but I disagree with it." That's his answer on that. He also made it clear--
THE COURT: Keep your voice down.
MR. NEUFELD: He also made it clear it's his position you can do the calculations but he disagrees with it. All I can ask him to do--since he's already testified to the frequencies for Cellmark databases, I am going to simply ask him at this point to provide those kinds of frequencies for the people who cannot be excluded. That's all. He can say, "I disagree with it," as much as he wants. I can ask him using items which are in evidence, what he has looked at has already--you know, it's the Cellmark database he's familiar with, the frequencies on there and at--
THE COURT: Mr. Clarke.
MR. CLARKE: Well, first of all, NRC--Mr. Neufeld has characterized what the NRC report has said. The witness already testified that the only way this database is part of that report is if you assume that that's what they meant. But more importantly, at this point, we've been given six different charts involving a technique that the evidence shows at this point is extremely confusing, well, extremely misleading, and I think going through these charts with this state of the evidence serves no purpose. It's irrelevant and confusing to the jury based upon this evidence thus far.
THE COURT: How much more are you going to do besides just this chart?
MR. NEUFELD: I'm not doing the other--
THE COURT: Counsel, if I have to warn you to keep your voice down one more time, it's going to cost you 250 bucks.
MR. NEUFELD: It's not just this one. Just all contributors to the mixture other than the one shown, all people that contributed 4 alleles. I'm not going to do the other items of evidence. I was going to, but I'll dispense with all of them.
MR. CLARKE: We also--we also have a witness who has said this is scientifically wrong. We're having him make a series of manipulations that the evidence shows is wrong.
THE COURT: It is cross-examination and this is a computing theory. All right. I am going to overrule it, but I'm limiting you to those two areas. And--excuse me, counsel--you have to give him the opportunity to say that he vehemently disagrees with this, but he can do it.
MR. NEUFELD: Fine.
MS. CLARK: Your Honor, Mr. Neufeld is--
THE COURT: No. No. You don't get to talk.
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MR. NEUFELD: Thank you. Now, I understand that you said that you disagree with this approach, but I'm simply asking you to do certain calculations, make certain calculations to answer this question which is what percentage of the population could be included as a contributor to this profile; namely, the 1.1, 1.2 and 4 alleles that you see on the steering wheel. And what I would like you to do, sir--
DR. WEIR: Excuse me. Your original question was "Excluded." So we're now talking about "Included"; is that correct.
MR. NEUFELD: No. That percentage of the population which cannot be excluded, which would be the same I believe as that percentage of the population which could be included; is that correct?
DR. WEIR: I think so, yes.
MR. NEUFELD: All right. And, as you know, it is Cellmark's approach when it looks at those different frequencies, it takes the highest frequency from the different databases; is that correct?
DR. WEIR: Yes. They have--for Caucasians, they have three data sets they rely on, that they have access to, and they take the highest frequency for each allele.
MR. NEUFELD: Okay.
DR. WEIR: But--excuse me--here, this table is of pairs of the genotypes, the pairs of alleles.
MR. NEUFELD: I'd like to put the table up as exhibit 1202.
THE COURT: All right. 1202. Do you have a copy for Dr. Weir?
MR. NEUFELD: I'm sorry. What?
THE COURT: Do you have a copy for Dr. Weir since it's hard to see some of the details?
MR. NEUFELD: Certainly.
(Brief pause.)
MR. NEUFELD: Defendant's 1201.
THE COURT: 1201 or 1202?
MR. NEUFELD: 1202. I apologize, your Honor.
(Deft's 1202 for id = table)
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, looking at this table, sir, is it clear that the first column refers to the various potential genotypes that could contribute to the mixture found on the steering wheel?
DR. WEIR: That--that doesn't quite state it accurately. This is the frequencies of single persons that could have contributed to the stain we know came from more than one person.
MR. NEUFELD: And would you agree, sir, that a mixture is comprised of different individuals?
DR. WEIR: A mixture is a mixture of more than one person. Certainly.
MR. NEUFELD: And so to get a mixture, it would require the contributions of different individuals; would it not, sir?
DR. WEIR: The mixture would require the contributions of more than one person. That's right.
MR. NEUFELD: And by that, you mean by different individuals; is that correct, sir?
DR. WEIR: Yes. Yes, I do.
MR. NEUFELD: Okay. So now what I would like you to do is to look at the individual genotype frequencies for those individuals who could contribute to this mixture.
DR. WEIR: I don't think I can do that from this chart. I don't see the frequencies of the pairs of individuals that could have contributed.
MR. NEUFELD: Sir, I'm asking you to calculate--I understand how you disagree with this approach. I'm simply asking you to calculate the individual frequencies. And my first question, sir, is, according to the chart that you have, are there frequencies listed in the Cellmark table for the genotype frequency for the 1.1, 1.1 genotype?
DR. WEIR: Yes, there are.
MR. NEUFELD: And what frequency do they give?
DR. WEIR: Well, Cellmark lists the 1.9 percent.
MR. NEUFELD: Okay. And do they also list a frequency for their African American database?
DR. WEIR: Oh, yes. Yes. That's 2.3 percent.
MR. NEUFELD: And do they also list one for their Hispanic database?
DR. WEIR: And that is 16 percent.
MR. NEUFELD: And then do they also have a--the genotype frequencies for the second genotype, 1.1, 1.2?
DR. WEIR: Yes, they do.
MR. NEUFELD: And just to save some time, are the numbers that I have on that table consistent with the numbers that you have on the Cellmark table?
THE COURT: Referring to 1202 and 1201 respectfully.
DR. WEIR: The numbers on the shorter table are an extraction of the numbers on the bigger table, yes.
MR. NEUFELD: There's nothing inaccurate in my writing down recording the numbers on Defendant's exhibit 1202; is that correct?
DR. WEIR: I don't see any. I'm sure they're correct.
MR. NEUFELD: Okay. And can you think of any other genotypes of individuals who could contribute to the mixture on the steering wheel other than the six genotypes that I've listed on the table?
DR. WEIR: Well, the contributors to the mixture of course are a mixture of people. There's no single genotype, not listed here, that did not contribute. Did I get that right? I think the answer is yes.
MR. NEUFELD: Okay. Yes, there are no others other than what's listed here; is that correct?
DR. WEIR: Yes, sir.
MR. NEUFELD: Okay. And, sir, if you now sum up the frequencies of individual frequencies who could contribute to this mixture, first using the Caucasian database that Cellmark relies upon, is the number 45.4 percent an accurate number of the summation of those frequencies?
DR. WEIR: I'm not going to check that. I'll assume that that's accurate.
MR. NEUFELD: Okay. And does the number 59.2 percent reflect the sum of the frequencies of individuals who could contribute to this mixture in Cellmark's African American database or table that they rely on?
DR. WEIR: Yes. Those numbers probably sum to 59 percent.
MR. NEUFELD: And is the frequency 48.8 percent of the population the number that one would arrive at relying on Cellmark's Hispanic database?
DR. WEIR: That's true.
MR. NEUFELD: Now, sir, what I would like you to do is go back to the question that I initially posed and then walked away from, which is, what percentage of the population could contribute that number 4 allele that we know that neither Mr. Simpson could contribute nor Nicole Brown Simpson could contribute and we know Ronald Goldman is also excluded. And I want to ask you just about that one now. Do you have another copy?
MR. NEUFELD: Your Honor--
(Brief pause.)
MR. NEUFELD: And I'm going to ask that this next slide be marked as Defendant's 1203.
(Deft's 1203 for id = slide)
MR. NEUFELD: And I'll offer you a miniature copy of it, Dr. Weir, to assist you.
DR. WEIR: Thank you. Thank you.
MR. NEUFELD: Now, Dr. Weir, again, what I want you to do is rely on the Cellmark tables. And just looking at the possible genotypes that could contribute the number 4 allele, is this slide correct in saying that the three possible genotypes are the 1.1, 4, the 1.1--I'm sorry. Let me start all over again. Would you agree, sir, with this table; that the genotypes of individuals who could contribute the 4 allele to this mixture on the steering wheel would be somebody who has either a 1.1, 4 genotype, somebody who has a 1.2, 4 genotype or somebody who has a 4, 4 genotype?
DR. WEIR: Yes. If the person was a contributor to the mixture, they must--and they gave a 4, they must have a 4 and they must not have anything other than what we see in the mixture. So that's correct.
MR. NEUFELD: Okay. And again, looking and relying on the Cellmark tables in front of you, sir, are the frequencies that I have here for somebody who has a 1.1, 4 genotype correct for the three different databases; namely 9.5 percent, 7.7 percent and 9.9 percent of the population?
DR. WEIR: Well, they're in a different order. They're in a different order than from what's on the chart, but at least I think they're correct. Yes, I think they are.
MR. NEUFELD: Okay. And are the frequencies in the three different Cellmark databases for somebody who has a 1.2, 4 genotype correct in the slide on the board?
DR. WEIR: The three numbers are there in a different order, yes. Uh-huh.
MR. NEUFELD: All right. And finally, the frequencies for somebody who has a 4.4 genotype, are the three numbers up there the correct population frequencies for that particular genotype in the three different Cellmark databases?
DR. WEIR: Yes.
MR. NEUFELD: Now, I'd like the next slide, which will be 1204.
THE COURT: All right. 1204.
(Deft's 1204 for id = slide)
MR. NEUFELD: Doctor, you already have that before you.
DR. WEIR: I can't read that small. I'll go from the screen.
MR. NEUFELD: Okay. Fine. And, sir, if you simply sum the frequencies for the various genotypes as is shown in this slide, according to Cellmark's database, would you agree, sir, that 40 percent of the African--approximately 40 percent of the African American population, according to Cellmark's database of course, has a genotype which is consistent with being a part of this mixture?
DR. WEIR: I think that's right. 40 percent is the sum of all the individual people who have one of their alleles a type 4.
MR. NEUFELD: And, sir, would you agree that, again, using the same Cellmark tables, that approximately 31 percent of their Caucasian--of the Caucasian population based, of course, on their Caucasian database also could not be excluded as a possible contributor to this mixture?
DR. WEIR: That's right.
MR. NEUFELD: And finally, given Cellmark's Hispanic database, that approximately 38.4 percent of the population could not be excluded as being a contributor of that 4 allele?
DR. WEIR: Well, I do have to accompany my response by saying that that's correct, but I don't think it has any bearing on the interpretation of the mixture.
MR. NEUFELD: I appreciate that. Now, Dr. Weir, during your direct examination, you defended or supported shall we say Cellmark's and DOJ's use of the product rule to generate the frequencies in this case; is that correct?
DR. WEIR: That's right. Yes.
MR. NEUFELD: Would you agree, sir, that within the fields of statistics and population genetics, there has been controversy regarding the appropriateness of the product rule as it is used, for instance, by Dr. Cotton and Mr. Sims in this case?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled.
DR. WEIR: You'll have to be more specific. I'm not sure exactly what you're meaning. A lot of people said a lot of different things. I don't--you started talking about independence and then you started talking about controversy. So I need to understand what you're asking me.
MR. NEUFELD: Well, has there been controversy about the methodologies used by laboratories such as Cellmark and DOJ to calculate the rareness of a particular DNA profile over multiple loci?
DR. WEIR: Well, I'm not sure that I can answer that very clearly. There have been--there are published ways validating the procedures used. Some people have made statements critical. But the various statements are all over the board. So we need to be focused on what specific aspect you're talking about. We can discuss that in some detail.
MR. NEUFELD: Well, let me ask you this, Dr. Weir. When you--did you testify yesterday morning at a hearing in this courtroom prior to your testifying before the jury?
DR. WEIR: Yes, I did.
MR. NEUFELD: And when you testified at that hearing, didn't you say that you wrote letters to different publications because you believed that the way those publications covered the debate on these issues was one sided? Did you say that yesterday?
DR. WEIR: Yes, I said that.
MR. NEUFELD: Okay. So when you said there was a debate, you meant that there was a debate within the scientific community; did you not?
DR. WEIR: Not quite. There was a debate--and I would classify those--that debate as being almost in the popular press. That wasn't a scientific literature debate. So I want to be clear about that. I have written letters to the editors of journals that have essentially carried news stories about this forensic uses of DNA. That's different from the scientific literature.
MR. NEUFELD: But you were referring to a debate when you gave that testimony yesterday?
DR. WEIR: The debate was in the--in this--in this--the debate was not in the scientific literature.
MR. NEUFELD: Well, Dr. Weir, you said that you are familiar with the national academy of science, NRC, report, correct?
DR. WEIR: Yes, I am.
MR. NEUFELD: And this report was authored by a committee of distinguished scientists and forensic scientists and others; is that correct, sir?
DR. WEIR: That's certainly correct.
MR. NEUFELD: And you would agree the national academy of science, which is responsible for this undertaking, is an extremely prestigious scientific organization in this country. Is that a fair statement?
DR. WEIR: Yes. It's a very prestigious organization.
MR. NEUFELD: Would it be perhaps the most prestigious organization in this country?
DR. WEIR: I think that's a fair statement.
MR. NEUFELD: And this report represents the national academy of sciences, national research council's effort to address the various issues involved in DNA technology and forensic science; is that correct?
DR. WEIR: Yes. It's a report set up by the--by that body and actually conducted by a committee of members outside their body, but it's under their ages, yes.
MR. NEUFELD: Well, the chairman of this committee was Dr. Victor McKusick; is that correct?
DR. WEIR: Yes, it was.
MR. NEUFELD: And you're familiar with Dr. McKusick's reputation; are you not?
DR. WEIR: Yes, I am.
MR. NEUFELD: He's an extremely distinguished scientist; is he not?
DR. WEIR: Yes, he is.
MR. NEUFELD: And he is an extremely highly-regarded geneticist; is he not?
DR. WEIR: Yes.
MR. NEUFELD: In fact, Dr. McKusick, who is the chairman of this committee that authored this book, is a member of the national academy of science, isn't he?
DR. WEIR: Yes, he is.
MR. NEUFELD: By the way, are you a member of the national academy, sir?
DR. WEIR: No, I'm not.
MR. NEUFELD: Now, aside from Dr. McKusick, Dr. Weir, there were other very highly regarded geneticists on this committee; is that correct?
DR. WEIR: Yes. Certainly.
MR. NEUFELD: And there are also highly-regarded forensic scientists on this committee; is that correct?
DR. WEIR: Well, I assume so. I'm not familiar with that field so much, but I assume they're reputable and highly regarded.
MR. NEUFELD: Well, you've attended some of the meetings within the forensic community over the last few years, haven't you, and given talks?
DR. WEIR: Yes. Uh-huh. I'm just--all I'm saying is, I'm not as familiar with the--with those people, but I understand that they're very good.
MR. NEUFELD: All right. Well--do you know who Paul Ferrara is, for instance?
DR. WEIR: Yes. I have met him.
MR. NEUFELD: And do you know him as the head of the Virginia division of forensic science?
DR. WEIR: Yes, I do.
MR. NEUFELD: And based on what you know of him and what you've heard in the community, does he have a very distinguished reputation--
DR. WEIR: Yes. Certainly.
MR. NEUFELD: --in the forensic science community?
DR. WEIR: Yes. Certainly.
MR. NEUFELD: And he also sat on this NRC committee; did he not?
DR. WEIR: Yes.
MR. NEUFELD: And Dr. Haig Kazazian, do you know who he is, sir?
DR. WEIR: Yes, I do.
MR. NEUFELD: And is Dr. Haig Kazazian a very distinguished geneticist in this county?
DR. WEIR: Oh, certainly.
MR. NEUFELD: And he too sat on this committee and authored this report, correct?
DR. WEIR: Yes.
MR. NEUFELD: And then we come to Dr. Mary-Claire King. She was another member of the committee that authored this report and she too a very distinguished geneticist?
DR. WEIR: Yes.
MR. NEUFELD: In fact, in the document which you've read, they described Dr. King's expertise is in the area of genetics as well as population genetics. Are you aware of that?
DR. WEIR: Yes, I believe that's what it states. Yes. And it's a true statement.
MR. NEUFELD: All right. And also included in the same group is Dr. Eric Lander; is that correct?
DR. WEIR: Yes. Dr. Lander and Dr. McKusick and I have a bond in common, of course, because we run the subsequent NRC committee to examine some of these issues.
MR. NEUFELD: Well, when you say "The subsequent NRC committee"--
DR. WEIR: The subsequent panel.
MR. NEUFELD: --you're not on the committee that's asked to draft another report. You were on the committee that considered the propriety of setting up a second committee; isn't that correct?
DR. WEIR: We were on the committee that unanimously recommended a new report, the issue to clarify some of the problems with the present report. Yes.
MR. NEUFELD: And was Elizabeth Thompson also on that committee?
DR. WEIR: Yes, she was.
MR. NEUFELD: And you're aware that she disagrees with you on some of these issues, aren't you?
DR. WEIR: Oh, no--
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled.
DR. WEIR: No. I'm certainly not.
MR. NEUFELD: How about, was there a Dr. Zabell who was also on that committee?
DR. WEIR: I don't remember Dr. Zabell being there, but I've seen his name. So obviously he was there, yes.
MR. NEUFELD: And are you aware that Dr. Zabell also disagrees with your position on some of these issues of the correct statistical approach to interpreting DNA evidence?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Sustained.
MR. NEUFELD: And is Dr. Lander a very distinguished member of the scientific community.
DR. WEIR: Dr. Lander and I I think are in agreement on the need for a new committee. He is very distinguished, yes.
MR. NEUFELD: Excuse me, sir.
MR. NEUFELD: Your Honor, I would ask you to ask the witness to be responsive.
THE COURT: Answer the question, doctor.
MR. NEUFELD: Is he a distinguished member of the scientific community?
DR. WEIR: Certainly. Dr. Lander is a very good scientist.
MR. NEUFELD: And Dr. Henry Lee was also on that committee. Are you aware of Dr. Henry lee's reputation in the forensic science community?
DR. WEIR: Only vaguely. I've seen his name in the newspapers.
MR. NEUFELD: And Professor--Dr. Richard Lempert was on that committee as well, correct?
DR. WEIR: Yes. I know Dr. Lempert now quite well.
MR. NEUFELD: And he's an expert in the field of statistical inferences in evidence; is he not?
DR. WEIR: Yes. He and I share a common belief in the correct way to interpret these evidence.
MR. NEUFELD: We'll get to that a little bit later, Dr. Weir. And Dr. George Sensabaugh was also on this committee, correct?
DR. WEIR: Yes.
MR. NEUFELD: And he's also a very highly-regarded member of the forensic science community; is that correct?
DR. WEIR: Yes.
MR. NEUFELD: And Dr. Thomas Marr is also a scientist who sat on this committee as well, right?
DR. WEIR: Yes. I don't know Dr. Marr. I know his name is listed, but I don't know him.
MR. NEUFELD: Well, as--not only do you know his name, but you know his reputation as a leading geneticist?
DR. WEIR: I must confess I don't in any detail.
MR. NEUFELD: All right. Now, this book authored by the NRC committee and authored by the individuals who I just listed to you states, does it not, that there is a substantial--
MR. CLARKE: Objection. Calls for hearsay, your Honor.
THE COURT: Sustained.
MR. NEUFELD: Sir, in your report, do you cite the NRC report?
DR. WEIR: I list it, but my report does not depend in any way on the NRC report.
MR. NEUFELD: Have you considered the NRC report in reaching your positions on the appropriateness of using certain statistical methods for interpreting DNA evidence?
DR. WEIR: Certainly not.
MR. NEUFELD: You haven't considered it?
DR. WEIR: Certainly not.
MR. NEUFELD: Have you, in fact, written papers and articles or letters to people criticizing positions taken in the NRC report?
DR. WEIR: Yes, I have.
MR. NEUFELD: Now, I'm not asking you, sir, at this point about the correctness of what the NRC did. I'm simply asking you whether or not the NRC recognized a controversy in--
MR. CLARKE: Objection. Hearsay, your Honor.
THE COURT: Overruled. Controversy in what particular area, counsel?
MR. NEUFELD: Yes, your Honor.
MR. NEUFELD: I'm simply asking you, sir, not whether you agree or disagree with the NRC's position, but did the NRC report acknowledge that there is a substantial controversy has arisen concerning the methods for estimating the population frequencies of specific DNA typing patterns?
MR. CLARKE: Same objection, your Honor.
THE COURT: Overruled.
DR. WEIR: That misleading statement is in the report.
MR. NEUFELD: But it is in the report?
DR. WEIR: That misleading statement is in the report.
MR. NEUFELD: And it is the position expressed in writing by the authors who we just described?
DR. WEIR: Well, I'm not sure it's the opinion of all the authors on that report.
MR. NEUFELD: But did I quote the report accurately?
DR. WEIR: I'm sure you did.
MR. NEUFELD: And I believe you said that you made formal submissions to the NRC committee, is that right, that authored this report?
DR. WEIR: Yes. You and I were in the room at the same time when I spoke to the committee.
MR. NEUFELD: All right. And at that point in time, you didn't say to yourself, Dr. Weir, "I'm not going to make a presentation then because these people don't know what they're talking about," did you?
DR. WEIR: Oh, no. I was very excited about this committee. I thought it was a group of fine scientists and that we might get a document to guide us in the future. I was very pleased to be there.
MR. NEUFELD: But you didn't like the final product that was turned out, did you?
DR. WEIR: No, I don't.
MR. NEUFELD: And, in fact, the NRC chose to reject your opinion as to the appropriateness of the then current methods for estimating those population frequencies, didn't they?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Sustained.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Well, Dr. Weir, did you feel resentment about the fact that the NRC report reached a different conclusion than the one you would have wanted?
MR. CLARKE: Same objection.
THE COURT: Overruled.
DR. WEIR: Well, I'm not sure what you're--there's no single conclusion in the document. Could you tell me which one you're referring to?
MR. NEUFELD: Fine. This conclusion. "Although mindful of the controversy, the committee has chosen to assume for the sake of discussion--"
MR. CLARKE: Objection. Hearsay, your Honor.
THE COURT: Sustained. Let me see counsel at sidebar with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: We're over at sidebar. Mr. Neufeld, I think the only issue that the NRC report is germane to at this point is the method of calculations regarding mixtures. I allowed you to cross-examine on that issue, but to go on into the whole controversy regarding the NRC report, I'm going to sustain a 352 objection because it's way overboard.
MR. NEUFELD: Let me just explain.
THE COURT: Keep your voice down.
MR. NEUFELD: I think he on direct examination did or did not specifically testify to mixtures, but as you may recall, he testified as to independence which allows him to utilize the product rule for all the single donor stains.
THE COURT: Why don't you ask him a specific question about that.
MR. NEUFELD: That's--this question is about independence. This is the point which I think he disagrees with and which I'm trying to get to now to show--I'm trying to use this to show his bias, and I think I'm entitled to ask him about his bias, your Honor. This is the part, just for that purpose.
THE COURT: No. The issue here is the determination of mixtures. Other witnesses have testified to the other databases. You had plenty of opportunity to cross-examine on those issues. To go after him using this hearsay at this point goes way beyond what we need to have here. It's a waste of our time. You can go into issues regarding mixture, but all this other stuff in the NRC report--we're not going to debate the NRC report.
MR. NEUFELD: I'm not going to debate the report. But I'm trying to bring out these things to show the biases he has. This--you know, it's a logical reaction to everything in this NRC report or to most of what's in the NRC report. I want to ask for bias purposes.
THE COURT: Ask him about it. You're sanctioned $250 for keeping your voice up.
MR. NEUFELD: Your Honor, I would like to take that up later.
THE COURT: That's fine.
(The following proceedings were held in open court:)
THE COURT: Proceed.
MR. NEUFELD: Dr. Weir, did you resent the fact that the national academy of science report did not take your advice and recommendations as how to calculate population frequencies?
DR. WEIR: That's too broad. I'm sorry. If we're talking--well, you have to tell me exactly what we're talking about because there are many aspects to that question.
MR. NEUFELD: Okay. Dr. Weir, did you resent the fact that the national research council came up with an approach to calculating population frequencies which gives considerable weight to the possible presence of population substructure?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Overruled. He's already testified to taking substructure into consideration in his testimony.
DR. WEIR: I agree with the need to incorporate substructure.
MR. NEUFELD: But did you agree with the manner that the NRC chose to incorporate substructure?
DR. WEIR: What are you talking about specifically?
MR. NEUFELD: Okay. Do you agree--I'm sorry. Do you resent the fact that they came up with a ceiling principal approach to handling the issue of substructure?
MR. CLARKE: Objection. Hearsay.
THE COURT: Overruled.
DR. WEIR: The ceiling--
THE COURT: Go ahead.
DR. WEIR: The ceiling approach is not the appropriate way to account for population substructure.
MR. NEUFELD: And in your testimony and in your discussions with the NRC committee, did you take a position opposed to using the ceiling approach?
DR. WEIR: No. When I had discussions with the NRC committee, it was before the ceiling approach was formulated.
MR. NEUFELD: Okay. Well, did you take a position it was inconsistent with utilizing the ceiling principle?
DR. WEIR: That never arose. If you recall, my testimony before the NRC committee had to deal with the measures of genetic distance, and I touched upon my independence testing. The concepts or the issue of substructuring did not arise at that point and I didn't address it.
MR. NEUFELD: Okay. So do you resent the fact that the NRC committee chose to adopt the ceiling approach to handling population frequencies?
MR. CLARKE: Objection. Vague. Also--vague.
THE COURT: Overruled.
DR. WEIR: I don't resent anything. I think the ceiling principal is the wrong way to do something. That's not resentment.
MR. NEUFELD: Now, I believe you said a moment ago you referred to a second NRC committee; is that right?
DR. WEIR: Yes, I did.
MR. NEUFELD: And is that--is it true, sir, that once the NRC report was published, it inspired additional controversy in the scientific community?
DR. WEIR: I don't like the word "Additional." The report itself generated controversy.
MR. NEUFELD: Well, sir, the report itself says it was created and written because of the controversy surrounding these issues, didn't it?
DR. WEIR: I've already said that I don't believe that the report was accurate in describing a controversy. However, the book itself certainly created a controversy.
MR. NEUFELD: And, in fact, there was sufficient controversy, as I think you pointed out a moment ago, that a determination was made to establish a second NRC committee to reinvestigate some of these issues; is that correct?
DR. WEIR: Yes. The NRC committee convened a panel of which I was a member along with members of that original committee, and we recommended that they issue a new report.
MR. NEUFELD: And also, I guess you said that some of those other scientists who were not part of the original committee that I just mentioned, namely, Dr. Thompson and Dr. Zabell, were also present at that committee meeting?
DR. WEIR: Yes. There were several others, yes.
MR. NEUFELD: Now, when it came time though to select the members for the second committee, you were not included as one of those people; is that correct, sir?
DR. WEIR: I was excluded by the ground rules of the membership of the committee.
MR. NEUFELD: And did those ground rules include the fact that you were perceived as a partisan on this issue?
DR. WEIR: Apparently. A partisan, yes. I had spoken out--spoken out sufficiently to be received--to be perceived as having strong opinions.
MR. NEUFELD: And the second committee has not yet published its findings; is that correct?
DR. WEIR: That's correct, yes.
MR. NEUFELD: Isn't it a fact, sir, that as recently as last November--just to give a sense of the continuing nature of this controversy, Dr. Weir, isn't it a fact that as recently as last November, 25 scientists in the fields of statistics and population genetics signed a letter asserting that the--
THE COURT: Sustained. Sustained. Sustained.
MR. NEUFELD: Sir, did you receive a copy of a letter--
THE COURT: Sustained. We're not going into that. We broached this once before. We're not going into that letter.
MR. NEUFELD: Can I have a sidebar, your Honor?
THE COURT: Nope.
MR. NEUFELD: Sir, you said earlier on direct examination that Dr. Elizabeth Thompson is somebody who--whose work you actually relied upon in doing some of the tests that you've done in forensic data; is that correct?
DR. WEIR: That's correct. I think very highly of her work and I was pleased to be able to use it.
MR. NEUFELD: And you regard Elizabeth Thompson as an extremely well-regarded member of the scientific communities involving population genetics and statistics?
DR. WEIR: Yes, I do.
MR. NEUFELD: And are you aware that Dr. Thompson takes the position that there's a--
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Sustained.
MR. NEUFELD: Have you ever read anything signed by Dr. Thompson describing her agreements or disagreements with your positions concerning use of the product rule?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled.
DR. WEIR: No.
MR. NEUFELD: Have you ever seen a letter offered by Dr. Elizabeth Thompson describing the extent of the controversy on this issue?
MR. CLARKE: Objection. Calls for hearsay. Also assumes facts not in evidence.
THE COURT: Overruled. Have you ever seen such a letter?
DR. WEIR: I don't think so. I've seen--and I'm trying--you'll need to show me what document you're talking about, of course.
MR. NEUFELD: 1203?
THE COURT: 4.
MR. NEUFELD: 4?
MR. CLARKE: Yes, your Honor.
THE COURT: 1204? 1204. 1205? 1205.
(Deft's 1205 for id = Dr. Thompson's letter)
(Discussion held off the record between Defense counsel.)
MR. CLARKE: I have an objection based on what the Court has already stated.
THE COURT: No. The question was, is he aware of any such. He can be shown the item and asked if he recognizes it.
MR. NEUFELD: Why don't you just read these five pages to yourself, sir.
DR. WEIR: (The witness complies.) Yes, I have seen this letter before.
MR. NEUFELD: And have you not only seen the letter, but you've also seen the list of signatures, correct?
THE COURT: Wait a minute. Over at the sidebar. Give me that.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at sidebar. Counsel, do you recollect my ruling on this letter the last time?
MR. NEUFELD: Your ruling on the letter last time was because Robin Cotton was not familiar with it. This letter was actually given to him back in November. He reviewed it. He's very aware of it, knows who signed it. That's the difference.
THE COURT: It's not signed.
MR. NEUFELD: What?
THE COURT: It's not a signed letter, counsel.
MR. NEUFELD: It doesn't have the signature, but let him say that he does not believe that these people--I'm not going into the contents of the letter yet.
THE COURT: All right. I'm sustaining the objection to the letter both on hearsay and 352 grounds.
MR. NEUFELD: Your Honor, then I would ask, can I--what I would like to do--
THE COURT: Counsel, we've already gone through this letter.
(The following proceedings were held in open court:)
MR. NEUFELD: Dr. Weir, do you know who Dr. Marcus Feldman is?
DR. WEIR: Yes.
MR. CLARKE: Objection. Relevance, your Honor.
THE COURT: Sustained.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Weir, when other well-respected scientists in your field express a disagreement with you, does that ever affect your position on the subject?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
DR. WEIR: It would if it did, but that has not arisen.
MR. NEUFELD: Well, Dr. Weir, is it your position that you have read all the critical comments that have been written either in letters or in publications which disagree with your position on these issues?
MR. CLARKE: Objection. Assumes facts not in evidence. Also calls for hearsay.
THE COURT: Overruled.
DR. WEIR: I'm sorry. I don't understand that question at all. I have read a lot of material involved in the forensic uses of DNA, but you're asking me to say--make statements about people disagreeing with what I do, and I would need you to be more specific than that.
MR. NEUFELD: Dr. Weir, I just showed you 1205.
THE COURT: Sustained.
MR. NEUFELD: You said on direct examination, Dr. Weir, that you have only consulted or testified on behalf of the Prosecution; is that right?
DR. WEIR: That's true.
MR. NEUFELD: And that the only time that you've been invited to testify for the Defense, you declined; is that correct?
DR. WEIR: The only times, yes. Uh-huh.
MR. NEUFELD: Now, wouldn't it be also true, sir, that you don't agree with all the methods that are used by forensic laboratories to calculate the statistical significance of a match?
DR. WEIR: You will have to tell me what you're talking about. I'm not sure what you mean.
MR. NEUFELD: Well, for instance, Dr. Weir, you told us that it is your approach to always put an upper confidence limit on these numbers; is that correct?
DR. WEIR: I say that--as I said, that goes along with the product estimate. And, of course, I agree with the product estimate reported by these laboratories and others. I would go an additional step.
MR. NEUFELD: And the additional step of a confidence limit will actually make the frequency more common, will it not, as an upper limit?
DR. WEIR: No. It has no effect on the frequency, of course, but the estimate remains as it is and then we have an upper bound on the estimate.
MR. NEUFELD: And the upper bound on what that estimate is is a more common number, okay, is not as rare a frequency as is the estimate itself provided by some of these forensic laboratories; isn't that correct?
DR. WEIR: That's true. We keep both things together. But you're true. The outer limit of this interval is more common than the estimate itself.
MR. NEUFELD: And you also testified, sir, that you believe that there is substructure within the--within the broader American ratio groups; did you not?
DR. WEIR: Yes. I think I said that. We certainly expect there to be genetic differences amongst groups. Yes. Uh-huh.
MR. NEUFELD: And that when you make your calculations in a case, that you take this further step to compensate for that substructure; isn't that correct?
DR. WEIR: Yes, I do.
MR. NEUFELD: And if you take that additional step to compensate for that substructure, that also will make the frequency a more common number, not as rare an event; is that correct?
DR. WEIR: Yes, it will. But we should say what effect it has. Reporting in a realistic amount of substructuring has an effect which is almost negligible.
MR. NEUFELD: Well, let me ask you this though. But both those approaches, compensating for your approach to compensating for substructure and your providing the upper confidence limit, depending on the data in a given case, that could be of some assistance to a Defendant who is confronted by a laboratory that has chosen not to take either of those two steps; isn't that correct?
MR. CLARKE: Objection. Argumentative.
THE COURT: Overruled.
DR. WEIR: That was long. I think--the estimate doesn't change. The estimate remains. The profile has a frequency estimate. That does not change. These additional steps give us some measure of how far apart we might be from the true answer. And, of course, we could give--I could give a limit the other way. We're only interested in the more frequent. Now, you know as well as I do that the estimate may be a lot more rare than we report. I believe it's a lot more rare than what we report. We are giving the upper confidence limit, not because we are saying the estimate is truly bigger than reported. It could possibly be. It could possibly be a lot less.
MR. NEUFELD: All I'm saying, sir, is that depending on the data in a given case, by providing the upper confidence limit, which you do in each case, and by taking that next step to compensate for substructure, those two steps can make the evidence less rare or have the impression of being less rare. Would you agree with that?
DR. WEIR: Not quite. The estimate remains the same. We are attaching a level of precision to it and we're only giving it one direction. That direction makes the estimate look more frequent. It's not changing the estimate.
MR. NEUFELD: Fine. But you said that direction makes the evidence look more frequent; is that correct?
DR. WEIR: That's the direction we've chosen to report. We could have chosen the other direction, but that would be foolish I agree. But this we are giving--we're giving half an answer. We're giving the upper limit.
MR. NEUFELD: But some of the testing laboratories that testify in court to their results don't do either those two things that you just described to give a higher frequency; isn't that correct?
DR. WEIR: No. That's not quite correct. Cellmark gives confidence limits.
MR. NEUFELD: Cellmark--to your knowledge, did Cellmark give a confidence limit as testimony in this case?
DR. WEIR: I'm not a hundred percent sure, but I think in some of those reports, there are confidence limits reported. I would need to go back and look.
MR. NEUFELD: Why don't you take a look at those reports, sir.
DR. WEIR: I can't. I'm sorry.
MR. NEUFELD: To your knowledge, did the Department of Justice offer confidence limits when it gave its numbers in this case?
DR. WEIR: No, they don't.
MR. NEUFELD: Okay. So in those situations, depending on what the data is, if a laboratory chose--laboratory used by the Prosecution chose not to take those two additional steps which can create, as you just said, going in one direction a more common frequency, then your assistance to a Defendant or a Defense attorney could have some importance; could it not?
DR. WEIR: Thank you. I take that point.
MR. NEUFELD: You agree with that?
DR. WEIR: I certainly do.
MR. NEUFELD: Yet, you have never in all the years that you have been involved in this issue and testified in cases even offered to consult without testifying to a single Defense attorney on any case; is that correct, sir?
DR. WEIR: Well, that's correct, because the Defense attorneys don't want me to do that.
MR. NEUFELD: Can we stop at this point, your Honor? Thank you.
THE COURT: All right. All right. Ladies and gentlemen, we are going to take our recess at this time. Dr. Weir, you can step down. Please remember all my admonitions; do not discuss the case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you and do not conduct any deliberations until the matter has been submitted to you. Just for your information, we'll be in session on this case this afternoon with just the lawyers. We have three motions to take up. So we'll be busy while you're probably out at the movies. So enjoy the weekend, and we'll see you back--I'm going to ask you all, however, to step back in the jury room for a few minutes. I need to take up a few things with the lawyers. Then I'll excuse you for the afternoon. All right. Have a nice weekend.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Let the record reflect the jurors have withdrawn from the courtroom. Mr. Cochran.
MR. COCHRAN: Yes, your Honor. Thank you very kindly.
THE COURT: You said you needed to talk to the Court about something.
MR. COCHRAN: Yes. Yes, I do, your Honor. Your Honor, yesterday and I guess a couple days ago, there was a statement made by Mr. Darden at sidebar regarding Mr. Simpson not taking some medication. That statement was false. Since that time, we have had occasion to have Shawn Chapman of my office contact Dr. Johnson at the L.A. County jail. And Mr. Simpson has on every occasion taken his medication, and the medical records at the jail verify that fact. And I want to--there was a story written about this that's totally nonsensical, medically contra-indicated, and I thought compelled as an Officer of the Court to indicate what the records indicate, what my client has also indicated; that he takes his medicine every day and that he has never at any time not taken his medicine for his rheumatoid arthritis, sulfathiazole I think it's called, and that the records at the jail so indicate that. And I think that the record should be made clear in that regard. And we took the further statement, as I said, to talk to Dr. Johnson this morning who verifies that fact also. So I felt compelled to indicate that to the Court.
THE COURT: All right. Counsel, our agenda for this afternoon is the People's motion regarding discovery of Defense expert statements, we have a People's motion to quash a subpoena upon various District Attorney personnel and we also have a motion regarding transcripts. Is that our complete agenda for this afternoon? All right. See you all at 1:30.
(At 12:15 P.M., the noon recess was taken until 1:30 p.m. of the same day.)
LOS ANGELES, CALIFORNIA; FRIDAY, JUNE 23, 1995 1:30 P.M.
Department no. 103 Hon. Lance a. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; also present, Douglas Mirell and David Crochtiere, esquires, for the ACLU; Kelli Sager, Esquire, for the media; and Rex Reeves, Esquire, for dismissed juror Francine Floria-Bunten.)
(Janet M. Moxham, CSR #4855, official reporter.)
(Christine M. Olson, CSR #2378, official reporter.)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. We have three matters to take up, a Prosecution motion for additional discovery, a Prosecution motion to quash subpoenas served upon certain Deputy District Attorneys and District Attorney employees and a motion by the ACLU on behalf of certain press interests regarding transcripts. Let's take up the discovery motion first.
MS. LEWIS: Good morning, your Honor.
THE COURT: Good afternoon.
MS. LEWIS: I'm sorry. Good afternoon.
THE COURT: Good afternoon, Miss Lewis. Time flies, huh?
MS. LEWIS: I was going to say that, but I didn't think it--well, I'll keep my opinion on whether that was warranted to myself. Your Honor, we have on several occasions already appeared before this Court with empty hands, empty of the Defense discovery with formal motions asking the Defense yet again to give up what the reciprocal discovery law tells us we have a right to, and we're here once again for that purpose; and I'm here to talk about not just experts' reports, but discovery with regard to lay witnesses as well. Now, first of all, with regard to experts' reports, this Court has admonished the Defense repeatedly throughout this case that it was skeptical of the lack of experts' reports, that if it discovered or it came to light that their reports either existed or that the experts had somehow been told not to write reports when they otherwise would normally prepare reports, the Court has repeatedly admonished the Defense that severe sanctions would be imposed. Now, the Defense already for the first time or the first most egregious time back during opening statements failed to disclose discovery, which the Court found that failure to be an intentional and flagrant violation of the discovery laws and an intentional one, that they did that for a tactical advantage. That was back in January, January 30th I think was when the Court issued its order in that regard. Even after the Court at that time ordered the immediate disclosure of experts' reports, we had to come again with, you know, palms open and hands empty asking this Court to compel them to do what it already ordered they do. Now, what they did was say that there was some dispute over the extent of experts' reports, now, some minor issue that could have been resolved without us having to wait weeks for discovery without getting it and then have to bring yet another formal motion. That finally got some action on their part. Apparently that's what caused them to go to the Court in camera to determine what they had to turn over. At some point after that, we got rough notes from a number of their experts, rough notes of observations. Still no reports. Now, we're here again, your Honor, and the Court admonished the Defense--the last time I believe was May 30th when you told them at sidebar that if they--if it turns out that they were in the wrong and not providing us reports, their experts would not testify.
And given their demonstrated failure to abide by discovery laws on several occasions in the past, I think suspicion is warranted, and we are very suspicious. We believe that there are reports that either exist that we should be getting that we're not getting or that their experts have been called off of writing them somehow. Now, along these lines, your Honor, I do want to point out that the Court seems to feel that there is something improper about the Prosecution--I'm not sure I'm accurate in saying this, so I want to be careful, but there seems to be something improper in the Prosecution contacting Defense expert witnesses. Now, once they place an expert witness on their witness list, which, for example, they had done with Dr. Rieders back in October of 1994, once they do that, the reason for doing that is that it triggers the reciprocal discovery obligations. It certainly triggers our right to contact that expert, and that's what this whole area of reciprocal discovery is about. So we feel somewhat constrained and we're in a difficult position. Are we allowed to contact experts whose reports we have not gotten or are we not?
So long as they're on the witness list, the law I submit gives us the right to contact those experts and we should be contacting those experts. But the Defense wants to argue out of both sides of its mouth saying that, "Well, we're not going to have them write reports," or, "We don't have reports to give you, and in the meantime, you're engaged in prosecutorial misconduct somehow if you fail--if you try and contact those experts if--at all." So they can't have it both ways, your Honor. This is a period and a time and an age of reciprocal discovery. They cannot continue to shield their experts. There is one flaw, fatal flaw in reasoning which the Defense still insists on engaging in, and it applies not just to expert witnesses, but to civilian or lay witnesses as well. And that is--let me start by saying that once they have placed these witnesses on their witness list, they have demonstrated under the language of footnote 11 and Izzazaga that it is reasonably likely that they anticipate calling those experts at trial. Now, that happens as a matter of law. And once that happens, that is what triggers their discovery obligation.
There have been statements made in the course of the last few months by Mr. Blasier, Mr. Scheck and others that demonstrate apparent ignorance or an unwillingness to follow that mandate because they still--they still demonstrate the subjective intent idea where if they end up not calling a witness, an expert witness or any other witness at trial, then they don't have to provide discovery. But they've missed the whole point of reciprocal discovery. While the reciprocal discovery is not designed to force them to call a witness to trial, it is designed to provide the Prosecution with an understanding and a full knowledge and opportunity to cross-examine intelligibly because we have knowledge of their prior reports and what they basically would testify to. Now, they do get the final decision whether they don't call that witness at trial, and that assumes, of course, that this Court does not preclude them because of discovery violations for making that decision. But that doesn't mean they can withhold the discovery for those experts who still to this day remain on their witness list. When it comes to experts, to this day, with the exception of a report, a four-page report from Dr. Gerdes, which we did get this week on Monday or Tuesday, with the exception of that, we still have not gotten a report from any of these numerous experts that they discussed in length in opening statement and have been the subject of two or three previous motions to compel their discovery. We still do not have those. Now--
THE COURT: Do you feel I need to go beyond the previous order?
MS. LEWIS: I do, your Honor. I believe at this point in time, there is good cause considering the past findings of this Court and the past orders of the Court with regard to discovery to force the Defense to make an affirmative showing that they are not doing something underhanded or unethical with regard to their discovery obligations to force them to show that they are indeed complying with the law in this regard. The Court's earlier finding with regard to the failure of the Defense to turn over the witnesses that Mr. Cochran mentioned during opening statement indicates that they were not--that they are not unwilling to engage in that kind of conduct, and that was what we started off with back in January where they intentionally withheld, and the Court made a finding that they intentionally withheld discovery on those witnesses for no good legal, ethical reason, but only to gain a tactical advantage. And the Court issued some strong sanctions in response to that in terms of allowing us to reopen and admonishing the jury, and those sanctions were appropriate. Now, your Honor, we've been--I've been before this Court a number of times on this issue. I've never yet before now--and I am asking now for you to preclude them from calling any expert for whom we do not have a report and for whom they cannot provide a satisfactory explanation and that the Court believes and the Court gives credibility to as to why they don't have that report and whether they're getting that report and when they're going to get that report, because it's been on the table now for months and months that these experts would normally--it's everyone's expectation that an expert writes the report. That's what everyone expects, the Prosecution--and I won't speak for the Defense, but that is the expectation. Now, if I may, I want to mention there's a problem with regard to civilian witnesses or lay witnesses. The Prosecution and the Defense early on in this case had an informal agreement that we would not exchange attorneys notes of witnesses. That agreement was not to my knowledge--and I've looked and thought about this--it was never finalized or formalized I should say with regard to the Defense's obligation to provide witness statements that their attorneys took as opposed to their investigators. Now, we, on the other hand, the Prosecution did because of global discovery demands enter into an understanding with the Defense, which we embodied in a document which we gave the Court a copy of earlier and which I've included the relevant page for and appendix to the brief, we did formalize that aspect of discovery whereby the Prosecuting attorneys did not have to turn over their attorneys' notes of witnesses. The reason for that and the common sense behind it and the reason why that is okay, that we are asking for their notes, even though we're not turning over ours, is because in every instance where a witness has testified, they have--we have had a police detective or a D.A. investigator interview that witness and write it up in a statement form, coherent statement, and have given that to the Defense so that they have that. So they had no need for attorneys' notes. On the other hand, there are a lot of civilian as opposed to expert lay witnesses which the Defense has failed to give us any information on at all. And there are also in addition to that approximately 10 or 11 witnesses for whom they have provided only rough notes.
And I made a copy of those and I know I appended one to our brief, but I did make a full--I believe it's a full set for the Court's perusal with regard to the other witnesses that I did append to the brief to show the Court just how loose these notes are and how unreliable they are. We cannot rely on these. We cannot rely on these in either of two ways. One, we can't rely on them for notice of what the witness is even going to say. Most of them--many of them do not even include relevant dates or time periods or what it is exactly they're alleging. You have to try and read between the lines. So there's an obvious due process problem which is not satisfied by these notes and which does not satisfy the discovery statute. In addition, there is the problem that we do not have anything concrete upon which to cross-examine these witnesses for whom we've been provided either no discovery or these rough notes. We cannot expect a witness to testify consistent with something that is incomprehensible. And so, therefore, if the witness testifies differently from what they said, we're not going to know it because you cannot tell from these notes. Therefore, there's nothing in these notes with which we can impeach them.
So they provide almost nothing. The only thing it gives us is some rough idea of the nature of the subject matter of the testimony. It does not tell us what they would say, what their statement would be, what it is that they believe to be the truth that they would testify to. So for the Defense on the one hand to say, "Well, we have this agreement where we're not going to give you attorneys' notes," but on the other hand, either withhold discovery entirely on many witnesses or give us only these inadequate, indecipherable rough notes with regard to these 10 or 12 witnesses, it's just not fair. They just don't come into court in equity with clean hands and be able to force us to abide by that early and formal agreement because they have not abided by the discovery laws and the spirit of that agreement, whereas we have in providing them witness statements from police or D.A. investigators with regard to all these witnesses. So we believe, your Honor, with regard to the lay witnesses or nonexpert witnesses, they should be required to either have their investigator write a compre--a coherent I should say and understandable, intelligent, understandable statement with regard to what these witnesses would say or give up their notes. I mean, they cannot shield themselves with this informal agreement we had earlier when they're using it to violate the discovery laws. I have to bring to the Court's attention one final matter which is not discussed in the brief. Mr. Douglas and I had been discussing the availability of certain photographs and certain negatives of photographs, and I believe we may have--apparently we've reached an impasse with regard to them. There were photographs provided to the Prosecution which included those taken at Mr. Kardashian's house on the 17th as well as those taken at Dr. Huizenga's I believe it's pronounced office on the 15th. Now, those photographs--
THE COURT: Haven't you been provided copies?
MS. LEWIS: We've been provided copies I guess as far as we know of all those photographs, but apparently they were lumped together. The other day, I came down and asked Mr. Douglas and Mr. Shapiro, who was the only other Defense attorney who they thought would be knowledgeable on that, to try and separate out those which were taken at Mr. Kardashian's house from those that were taken at Dr. Huizenga's. And they--Mr. Douglas and Mr. Shapiro were able to do so with regard to about two-thirds of those photographs. There still remain a set or a bunch of them with which they could not distinguish.
Consequently, we asked--I asked if we could be provided with the negatives of Dr. Huizenga's photos. The reason for that request is because we had previously been informed, apparently I'm told that they had lost the negatives of the photographs taken at Kardashian's house, Mr. Kardashian's house. So consequently, if we got Dr. Huizenga to bring in his file which presumably would have the negatives that he took so that we could go through the negatives and, one, make copies for ourselves off of the negatives, which would provide much clearer pictures of the Defendant's cuts and so forth than do the photos--apparently photos of photos which we have. So, one, for that purpose and, two, for the other purpose of separating out so that we would know exactly which photos were taken at which location on which day, because as it stands, they were all given to us--apparently given to us together. Lastly, your Honor, there were discovery documents given to us which we acknowledge receiving last Tuesday on the 20th. Included within those documents are handwritten notes from Dr. Henry Lee which were made apparently on April 2nd, 1995. That's when they're dated, and they're notes of his observations apparently and perhaps other observations--that's what they appear to be--of various aspects of the socks which are in issue in this case as well as--apparently they have--some have to do with the Bruno Magli shoes as well. Throughout this discovery is mentioned that photographs were taken including and of a particular importance that--this says photomicro--micrograph. So apparently there were microphotos taken is what I'm trying to get to, and we have not seen those and we believe we have the right to those. And we may have a disagreement about that. I believe we probably do have a disagreement about that. I broached the subject on that particular issue before lunch today and I think we do have a disagreement. But whether or not the Defense intends to offer those photos as real evidence at trial, I think if they--given their place within all these observations of apparently Dr. Lee, we have a right to those photos as part of the observations of experts and notes of observations of experts. And we have received many photos in this case along similar lines where apparently photos which were taken during the course of an examination from an expert--by an expert were turned over to us. So that is our position on that.
But once again--and I'm tired of coming before this court. I'm sure that the Court is tired of hearing me. I'm sounding like a broken record with regard to our frustration at having the Defense flagrantly--what appears to us to be flagrant violations of the discovery laws because we have simply not gotten what one would expect given all the reciprocal discovery laws, mandates and the case law following it and what the magnitude of this case would dictate.
THE COURT: Thank you. Mr. Uelmen.
MR. UELMEN: Thank you, your Honor. I can state without equivocation, without reservation that all reports that are in existence for any of the experts on our witness list and we intend to call as witnesses at this trial have been turned over.
THE COURT: So the only expert witness you intend on calling at this point is Dr. Gerdes?
MR. UELMEN: That's not what I said, your Honor. I said all reports in existence prepared by any of the experts we intend to call have been turned over. Some of the reports that we--some of the experts that we intend to call have not prepared reports and we have not requested them to prepare reports. And that I think is where we part company with the Prosecution's interpretation of the reciprocal discovery law. Reference has been made to the whole point of reciprocal discovery. The whole point of reciprocal discovery is simply acceleration, not disgorgement. The whole point of reciprocal discovery is to make available to the other side the materials that you have prepared in putting your own case together that you are going to put on as evidence in the presentation of your case in chief. The discovery law does not impose any obligation to prepare reports or statements. It simply requires the turning over of the reports and statements that are prepared in the routine of the preparation of your case. Now, Miss Lewis has stated everyone's expectation is that experts write reports. I'm afraid that's just not true. That is not everyone's expectation. In fact, the prevailing practice among many, many Defense experts is that they will not prepare reports unless they are specifically requested to prepare reports. Now, your Honor, of course, is aware of the Sara case. We're aware of it too, in which a Court held that for a Defense lawyer to instruct a witness whose routine practice was to prepare a report not to prepare a report, specifically to avoid having to turn that report over in the course of reciprocal discovery was contempt. But that case did not hold that there was any obligation for the Defense to make sure that a report is prepared by every witness that they intend to call as an expert witness. And quite to the contrary--
THE COURT: Let me ask you this. Forgive me for interrupting you. But it would be my impression--let's take, for example, Dr. Lee. That it's the practice of Dr. Lee and his office in the state of Connecticut to routinely prepare reports in the cases that they consult on and the cases that they assist the state authorities in that state to prepare for trial.
MR. UELMEN: I think Dr. Lee will speak to the contrary on that point, that when he is retained by the Defense as a consultant, he does not prepare reports unless they are requested. And Dr. Lee is an excellent example because his relationship has been an on-going consulting one in which he is frequently consulted as the evidence develops on an on-going basis by the lawyers representing Mr. Simpson for the Defense. It is not the practice to require him to put into a written report the results of all of his consultation. And at this point, we have not even made a determination yet as to what issues Dr. Lee will be called to actually testify as an expert witness.
So the discovery law doesn't say to the Defense you have to prepare reports. It simply says you have to turn over the reports that you do prepare. So the question--and again, in our moving papers, we have cited a case from the ninth circuit, incidentally, the same court that decided the Sara case, the case of United States versus Peters, in which the court reversed the imposition of sanctions of excluding an expert because a report had not been produced on the grounds that a report had not been prepared. And under the federal discovery law, which closely parallels the California reciprocal discovery law, there is simply no ruling by any court at any time that a court has authority to order the preparation of a report so that it can be turned over. And there's good reason for that, your Honor. If that were the case, if the reciprocal discovery law were to say to the Defense, you have to produce reports and statements so that they can be turned over to the Prosecution for their use, we would seriously run afoul I think of the protections of due process. The whole concept of reciprocal discovery is not based on turning the Defense into agents who are supposed to assist the Prosecution in investigating the case and making evidence available to them. The whole concept is simply, we want to accelerate the process and say to the Defense, if you're going to put this stuff on in your case, then you're going to waive whatever privilege protects it anyway. Therefore, you might as well turn it over now so that we don't have to delay the trial, so that the Prosecution doesn't get this stuff when the witness is actually called to the witness stand. The extent I think of the Prosecution's misconception of the reciprocal discovery obligation is implicit in their position, in their moving papers that simply putting a witness on the witness list means that automatically the Defense has to turn over anything obtained from that witness even if they thereafter elect not to call that witness as a witness. That somehow, just putting the name on the list works as a total waiver of any privilege that might protect the information that that witness later turns over to the Defense. And that is simply not the law. In fact, that position was explicitly rejected by the Court of Appeal in the Rodriguez case that we have cited, in which the court held that even after you put your witnesses on the list, at the time a later report is produced, that report may be excised to exclude privileged material as to which that witness is not going to testify.
And the woods case, which is the only case cited by the Prosecution for this remarkable proposition, held that in that case, because the Defense had turned over a report, at that point, the contents of that report were waived. Now, I'm not suggesting that we have reports that we're sitting on waiting to see what our experts are going to actually be called to testify to. We concede that as long as our experts remain on the witness list and we receive reports and our intent is to put those experts on the stand to testify as to the information in those reports, those reports have to be turned over as soon as we receive them. And we are certainly going to do that. But if at any point we decide to withdraw an expert and not have that expert testify, at that point, any reciprocal discovery obligation disappears, because the only purpose of the reciprocal discovery obligation is to accelerate the presentation of what is actually going to be presented by putting the witness on the stand. It is not to make available to the Prosecution some sort of windfall of new information that they might then put to use in terms of supporting their own flailing case in chief. With respect to the rough notes of the witness statements, we have turned over the rough notes because that's all we have. And again, there's no obligation that we instruct our investigators to go out and interview a witness and prepare a statement simply so that statement can be turned over to the Prosecution if we don't need the statement in order to prepare our own presentation of that witness. So again, it's a consistent position in that respect. We have been accused of playing fast and loose with the reciprocal discovery law. And quite to the contrary, your Honor, I think all of the cases that have interpreted this law has sent warning signals that we are treading on very dangerous thin ice from the perspective of the Defense lawyer's obligation to protect the privileges that encompass the presentation of or preparation of evidence for the Defense and to proceed with great caution in terms of what you turn over, because once you turn it over, it's a waiver and the cases make that quite clear. Once you turn it over the--whether you put the witness on or not, you have--you have waived the privilege. So it's incumbent on the Defense to very carefully look at what we're turning over. And we are proceeding on that basis and we have turned over all of the reports that we have received from the experts that we have on our witness list and intend to call as witnesses in the Defense case.
There may be witnesses who are on our witness list who will not be called. But the fact remains, until we have received a report and we intend to present that witness to produce the results of that report, there is no obligation to turn that report over to the Prosecution. And there is no authority--
THE COURT: Wouldn't you say we probably cross that line when you issue a subpoena or have an agreement for that person to appear beyond call as a witness?
MR. UELMEN: You know, I'm not even sure that a subpoena crosses the line in terms of--
THE COURT: Isn't that likely?
MR. UELMEN: --requiring that witness prepare a report. What I'm saying is, even up to the point that they've taken the stand and been sworn, there is no obligation that they prepare a report simply so that it can be turned over to the other side. If we're prepared to put our witnesses on without reports knowing that there's a risk, certainly they can get up and cross-examine and they can say to our experts, "Doctor, did you prepare a report?" "No."
"You mean you did all of this investigation and came to these conclusions without ever writing a report?" "Yes." And they can compare that expert testimony to the expert testimony that they presented and suggest to the jury that this expert presented by the Defense perhaps is less credible because he didn't prepare a report. That's certainly an avenue that is open to them. But what I'm saying is, that's a decision that is our decision, and the law does not in any way implicate our right to make that decision to saying that we are prepared to put our experts on without having required them to prepare reports. Finally, we would note that everyone's expectation that experts write reports, Dr. Lakshmanan never prepared a report. I think we're dealing here with a case in which the recent developments indicate just how fluid and dynamic the tactical decisions facing the lawyers trying this case are and how in many cases, those decisions are going to change as the evidence comes in. So it's certainly not our expectation that all experts write reports and it should not be the expectation of the Prosecution as well.
THE COURT: All right. Any brief response, Miss Lewis?
MS. LEWIS: Yes, your Honor. Thank you. The Defense is still laboring under this misconception. This is where we radically depart from the meaning of the discovery laws. They're under this assumption that they can wait until they finally decisively actually call Mr. Witness X, Dr. X to the stand before they have to conclusively--before they've conclusively decided they are going to call that expert and therefore turn over a report. And again, when Mr. Uelmen talks about not knowing exactly what subject matter Dr. Lee is going to testify to, that--he's making that same argument again. And that argument cannot be the law because every Defense attorney in every case could argue that and could thwart the whole purpose of reciprocal discovery when it comes to experts. There's a real problem with that attitude and I don't think it flows--I think it's a matter of law. The law is to the contrary once they put the witness on the witness list. They've done that--
THE COURT: Do you have a case that says that?
MS. LEWIS: Well, under Izzazaga, footnote 11, when they reasonably anticipate calling a witness at trial I think--
THE COURT: Do you have a case that interprets that phrase?
MS. LEWIS: No. I don't believe there is one in California. But I think--
THE COURT: So how can it be so clear? And is there a federal case that has an analogous statute or the Oregon statute that has a case that says that that's what reasonably likely to call.
MS. LEWIS: No, your Honor. The Parker case that Mr. Uelmen alluded to which relied on the federal rules as well as a Hawaii statute, the wording of that statute which the court interpreted the plain--plain meaning of explains that decision. The federal rules as well as the Hawaii local rule in terms of discovery of experts' reports provide that the Defendant shall permit the government to inspect and copy or photograph the following. Then they list experts' reports and so forth. And what the ninth circuit said in the Parker case is, because the statute says it shall permit the government to inspect and copy or photograph it, it must have been making reference to something tangible already in written form, and hence there is no obligation under that statute to reduce an oral communication to writing.
We don't have--our statute is not worded the same. Consequently, its plain meaning is different from the plain meaning of the wording of this statute. They're not analogous. In addition to the statements of expert that our discovery statutes talk about, they talk about the Defense having to provide the results--
THE COURT: No. Excuse me. Maybe--I obviously didn't make myself clear. My question was reasonably likely to call as a witness, what triggers that standard? What is that standard? Is it when a subpoena is issued? Is it when the actual witness list is prepared? Do you have any case authority that defines that term?
MS. LEWIS: I don't have any--there is no authority that I'm aware of that specifically delves into that issue. In woods, however, the court does address it--the court addresses the Defense argument. I don't--there is no case I believe in California that specifically defines that yet, that discovery law still being interpreted.
THE COURT: I am wondering if you found anything in the federal or Oregon statute.
MS. LEWIS: I have not. I have not, your Honor.
THE COURT: All right.
MS. LEWIS: The woods case--in the woods case, you know, it's still right on point where it says: "Finally, the Defense protests the vice of acceleration is that disclosure must be made solely to preserve the option of calling the witness even though not all reasonably anticipated witnesses are actually called to the stand. "At least--as such--" excuse me--"At least, in the case of confidential statements," the public defender in woods argues, "There should be no waiver until the expert testifies." And the Court of Appeal in woods held, "We sympathize with the position, but cannot accept the argument as a general proposition without doing damage to the statutory objectives of ascertaining the truth, saving time in trial, avoiding the necessity of postponements and protecting against undue delay."
So the Court of Appeal--the policy behind requiring the Defense to disclose those witnesses that reasonably anticipates calling at trial is to require that discovery to be turned over. So while there's no case which construes it specifically as far as what the Court is talking about, there is the whole policy of the law and the policy is explicated as it is in woods and other cases. I'm reminded apparently that there have been Defense experts going on national television saying they will testify in this case. I seem to recall Dr. Lenore Walker saying that on the Larry King Live show.
THE COURT: Have you received any of the underlying testing information that was discussed?
MS. LEWIS: We did, your Honor. Shortly after the Court ordered it, we received very informally or maybe it was formal--we did receive--we have received the raw data of the testing results. We have never yet received any kind of report from Dr. Walker with regard to her analysis or interpretation or anything of that data. And we are wondering why isn't that forthcoming. If she's bragging on national TV how she's going to be testifying in this case, surely she must have an idea what she's going to be testifying to. So, your Honor, the discovery law requires this disclosure so that those things can happen which it seems to promote, and that is the ascertainment of truth to save time from delays happening or are necessitated because of the failure to proceed timely discovery. So all those things warrant the Court finding that by placing these witnesses on their witness list, they did that for the purpose of preserving their right to call them. So, therefore, it demonstrated as a factual matter that they reasonably anticipated calling them for trial. I've argued that my reading of the statute that should be as a matter of law, but it's also as a factual matter, and the Court can so find with regard to this case that they made that factual determination. Otherwise, why would they put those witnesses on their witness list? They clearly did so because they wanted to preserve the option of calling them because it was reasonably anticipated, and that's the loose language of Izzazaga. It's not strict language. It's very loose language. They reasonably anticipated calling them at trial. It was likely they would call them at trial.
And Izzazaga does establish the standard to that extent, that it allows for a loser standard than near certainty or certainty that Mr. Uelmen argues to this Court should be required before they have to disclose statements. Now, when they talk about civilian notes and so forth, oddly enough, throughout most of the several months of the beginning of this case, the Defense was--when they eventually provided them--we didn't get them timely. But when they finally gave us witnesses' statements, their investigators were able to write coherent statements. Many of them were short and to the point. They were not--most of them, the ones that we have gotten, are not lengthy detailed, complicated things for an investigator to write out. So it strikes us as suspicious and it is suspicious that why is it now suddenly with these last 10 or 12 witnesses that we get all these rough notes on? Why are we only getting rough notes now if that's the general practice and procedure? Why haven't they been doing that all along? They've been writing statements all along and their investigators have been writing statements of witnesses all along, and we are getting only their rough notes which are incoherent and we're unable to rely on them.
So we believe we deserve more, your Honor. I'm here again with my palms open asking the Court to please enforce the discovery laws and require the Defense to do what the law obligates them to do.
THE COURT: All right. Thank you, counsel. I accept as a premise in this matter Mr. Uelmen's representation to the Court at this time that all expert witness reports that have been produced and that are in the possession of either the expert witness themselves or in the possession of Defense counsel have been turned over to the Prosecution of those witnesses that they intend to call, that the Defense intends on calling. I've always--excuse me. I have already expressed to counsel my skepticism that so many Defense witnesses would not prepare reports, especially given the national stature of so many of these witnesses. It seems unlikely to me that that's the case. However, I do acknowledge that this trial has been very dynamic and very fluid in the way that it has progressed and that things change day to day, moment to moment. And I can see clearly strategy shifting on both sides.
So whether or not a final determination has been made to call a particular witness, I can as a former trial lawyer understand that that decision changes from day to day. The Prosecution--. Miss Lewis, you make the argument that I should look to the policy and the spirit of the statute and enforce the policy and the spirit. The problem is, the policy and the spirit is for the Appellate Courts to determine, not for the trial court. I'm bound by the particular language of the statute, and as a trial court Judge, I can't go beyond the statutory language. There are many flaws in 1054 of the Penal Code, and I suspect one of the outcomes of this particular case, no matter what the outcome will be, a legislative change in 1054 that will statutorily require the preparation of reports. But that's not supported by the case law and it's not supported by the statute. The Court's previous order does direct the Defense to turn over all reports as soon as they become available. That order stands. And I previously warned the Defense that if expert witnesses are called and if I find that there's been a subterfuge, those witnesses will be precluded. That ruling stands.
MS. LEWIS: Thank you, your Honor.
THE COURT: All right. Let's go to the motion to quash the subpoena.
MR. DARDEN: Good afternoon, your Honor.
THE COURT: All right. Mr. Darden, good afternoon.
MR. DARDEN: The People have filed moving papers seeking to quash the subpoenas for Melissa Decker, one of my personal law clerks, and Deputy D.A.'s Alan Yochelson and Terry White. While it's true that the Defense can issue a subpoena on a hope and a prayer that the witness will appear and provide them information, a witness isn't obligated to appear and testify unless the Defense can establish or make a showing rather that the witness can offer some material or relevant and admissible information. In this situation, as I understand it, these--these staff members of the D.A.'s office can offer the Defense nothing, nothing at all in terms of material information or evidence or testimony. They have nothing to offer this Court or these Defense lawyers in the way of anything that is relevant to these proceedings. Apparently the Defense hopes to somehow impeach Mark Fuhrman's testimony, and I can understand why they may want to try and do that. He was a very effective witness. He did not buckle under the pressure and I'm sure that the jury found him a very credible witness. Now, they seek to undermine that testimony by calling these D.A. employees. Their offer of proof or the showing that they intend to make apparently is based on an article in Newsweek magazine, specifically a March 6th article. They've cited that article or quoted a portion of it to the Court in their response to our motion to quash, and I would ask that the Court take a close look at that article. It provides no source, no named source for the information contained in the article. It doesn't even say that the source is anonymous. In fact, no source is mentioned at all. There are a couple of quotes contained in the article. One of the quotes is attributed to a source close to the Prosecution. Not a Prosecutor, not a member of the D.A.'s staff, but a source close to the Prosecution. And then that individual apparently--and that is if you can believe the Newsweek writers--goes on to state Mark Fuhrman was a difficult or defensive witness during an alleged--during an alleged mock cross-examination. Well, let's say that's true. Let's say that Fuhrman was difficult and defensive. Well, that's an opinion. That is the opinion of the source close to the Prosecution; and if that was the opinion of any member of my staff, then that opinion is privileged. It's not relevant--
THE COURT: You mean under the work product privilege?
MR. DARDEN: Under the work product privilege. It would not be admissible. There's a second quote that's attributed to a Prosecutor--
THE COURT: We're not talking admissibility. We're talking discoverability.
MR. DARDEN: Okay. I understand that. I understand that. But it wouldn't be material or relevant as well.
THE COURT: Well, there are different standards for discoverability and admissibility.
MR. DARDEN: Yes. Yes. There's a second quote which is attributed to a Prosecutor familiar with the case. And that person, assuming he is a Prosecutor, assuming he is familiar with the case--and I doubt that anyone is really familiar with this case unless they sit here every day with us and witness what goes on in court. That Prosecutor speculates that if the information contained in the article is true, that a jury might conclude that Mark Fuhrman planted evidence.
Well, how is that material or relevant or admissible? It isn't attributed to any member of my staff and it isn't attributed to the D.A.'s and the D.A. staff members that they seek to subpoena. Nor, given the context of this information, given the fact that it is from some unnamed source, assuming that there is a source, nor is it likely to lead to evidence, discoverable evidence that will be--that will be proven admissible at some later time. There's nothing in the article to suggest that we as Prosecutors are in possession of any information that is inconsistent with Mark Fuhrman's testimony. They make these base allegations of course. Of course they do that. But they don't attribute those allegations to us. Now, we as Prosecutor have a duty I think to advise the Court in the event that a witness testifies in a manner that would constitute perjury. And I understand the perjury statutes in this state. I have indicted police officers on perjury allegations. I have investigated police officers for perjury. I have participated in boards of rights, board of rights hearings on perjury issues and I understand the law on that.
And I suspect that what the Defense really wants to know is whether or not Mark Fuhrman told us that he used the "N" word in the past 10 years. He testified that he did not use the "N" word in the past 10 years, and had I any information otherwise, I would have advised the Court. But I have not advised the Court because that situation has not arose or arisen. Now, counsel for the Defense and the Prosecution have entered into an agreement which was alluded to by Miss Lewis a moment ago, and that is that attorneys' notes are not discoverable. I think that if we look at the spirit and the purpose of that agreement, if our notes aren't discoverable, why then are our thought processes discoverable? Why should we be required to come and testify under circumstances like these? I mean, it turns the agreement on top of its head, on its head. We have nothing new to give the Defense. We have nothing to tell them that they don't already know, that they don't already have in discovery. If they want to know if Mark Fuhrman ever used the "N" word throughout his life, then they have the same 1981 and `82 psychiatric reports that we have. We discussed that before, okay, and the Court ruled that that evidence was irrelevant and inadmissible. We don't have anything else new. As for the article's characterization of that event as a mock cross-examination--and I want the record to reflect this so that it is understood--when Mark Fuhrman was here on one weekend, the air conditioning in the upper floors in this building were turned off. We had to go to the only floor we could go to where the air conditioning was on and where someone had a key. That happened to be on the 13th floor. And when we walked into the grand jury room that day, I said, "Geez, I'm going to regret this one day," and we have. But in any event, we have no new discovery, your Honor. My staff has nothing to offer this case, these Defense attorneys, no new evidence whatsoever, and I would ask that the subpoenas be quashed. They cannot show this Court that we have material, relevant or admissible evidence.
THE COURT: Thank you, Mr. Darden. Mr. Uelmen.
MR. UELMEN: Your Honor, to put these subpoenas in context, all three of the subpoenaed individuals we have information were present during this unusual Sunday afternoon grand jury session with Detective Mark Fuhrman. Detective Fuhrman your Honor will recall was questioned about this session during his cross-examination when he appeared as a witness in this trial, and he testified that the session was a very brief one, he said 20 to 30 minutes, that it was very casual, that he was eating a submarine sandwich while various questions were discussed. And to quote his testimony from the transcript, page 18768, by Mr. Bailey: "Can you tell me, just yes or no, were any racial slurs used in that
Experience that day? "Answer: No, there weren't. "Question: Not a single one? "Answer: No." Now, that varies significantly from the description of this session that appeared in Newsweek magazine. And I call your Honor's attention to the quotations that are attributed to District Attorney sources in their description of what happened in that Sunday afternoon session. "The attorneys were hammering Detective Mark Fuhrman. As the questions turned to the issue of racism and to his disaffection as a police officer, Fuhrman became uncomfortable. He admitted that he had made racial slurs in the past. He conceded he was profoundly disappointed in a criminal justice system that too often fails to punish the guilty. Fuhrman played right into the hands of the Defense. "This time, the interrogation of Mark Fuhrman was only a dress rehearsal. It took place Newsweek learned during a mock cross-examination staged by the Prosecution last week when the Orenthal James Simpson trial was in recess."
The article goes on to say, quote: "A source close to the Prosecution said Fuhrman came across as a difficult and troubled witness, that he became defensive and agitated." The article then asks: "Could Fuhrman's performance help a juror believe that the detective had planted the infamous bloody glove at Simpson's Brentwood mansion? That wouldn't be a big leap says a Prosecutor familiar with the case." Now, when a national news magazine cites as their source individuals on the staff of the District Attorney's office--
THE COURT: But anonymous. What credibility can a court put in anonymous sources?
MR. UELMEN: Well, the question, your Honor, is whether we now have enough of a basis to pursue this and ask to speak to the District Attorney personnel who were concerned, and if they refuse to speak to us, to subpoena them as witnesses.
THE COURT: Well, Mr. Uelmen, let's assume that if a witness statement is made to a Prosecutor and that statement contradicts testimony in court and let's assume that I believe that there's a Brady obligation under that scenario to disclose, how does the Court--and assuming further that we have the unusual situation that you're talking about calling Deputy District Attorneys involved in this case as witnesses, so I have the same problem only in reverse of the Kardashian situation, how do you suggest I deal with that?
MR. UELMEN: Well, there are a number of--
THE COURT: And this assumes that I find Newsweek to be a credible source of information.
MR. UELMEN: There's one important distinction, and that is that with respect to Mr. Kardashian, there is an attorney-client privilege with respect to the consultations between Mr. Kardashian and Mr. Simpson.
THE COURT: No. We're not talking about that situation.
MR. UELMEN: Well, here, we're talking about a mere witness. We're not talking about any implication of any lawyer-client privilege.
THE COURT: No. I'm asking you, how do we perceive--you're missing the point. In both situations, you're asking to call as a witness in this trial counsel for one side or the other.
MR. UELMEN: Right.
THE COURT: That raises very delicate issues I think. Because say, for example--
MR. UELMEN: I would suggest that, your Honor, proceed the same way you did with Kardashian. We made Mr. Kardashian available to the Prosecution to be interviewed.
MS. LEWIS: They did not, your Honor. I have to interrupt. I'm sorry. They did not.
THE COURT: No, you don't need to interrupt, Miss Lewis.
MR. UELMEN: Well, I believe there was an effort made to ascertain precisely what it was they wanted to ask Mr. Kardashian. We are simply asking that we be given the opportunity to talk to the Prosecutors and to the District Attorney personnel who were actually present during that session. That session is not a privileged consultation. We're not asking to impede on any work product privilege. We're not going to ask these witnesses what their thought process was or what their evaluation of Mark Fuhrman was. We're going to ask them what happened and what was said in that session that could conceivably contradict and impeach what Detective Fuhrman testified to when he was called as a witness at trial. I think your Honor is correct that there is a Brady issue lurking here. In fact, if what the Newsweek article says is true--
THE COURT: Well, why don't you address my specific question. How do you propose the Court proceed as to making those assumptions?
MR. UELMEN: Well, I would suggest the Court proceed by ordering that the District Attorney personnel that we have subpoenaed submit to interviews by the Defense. We have requested an opportunity to interview them, and the response was simply they are overburdened, they're too busy to talk to us. We believe if they're going to stonewall us and attempt to cloak this entire session in the grand jury room with some sort of impenetrable wall of secrecy, then we have a right to bring them into court and out of the jury's presence question them. I think that would be a ludicrous use of this Court's time to have to go through that exercise simply because they won't sit down and even talk to us. Now, it may be and we'll assume that when they sit down and talk to us, they're not going to lie to us just as we assume they're not lying to Newsweek magazine. If they're going to give us information about what happened, not their impressions and not their notes, just simply an account of what happened in that session, it may be that we don't even need to call them, that there is nothing there. But the published account attributable to sources in the District Attorney's office suggests that there indeed may be something there, certainly enough of a suggestion to create an obligation on our part that we pursue it, and that's all we're attempting to do. The subpoenas are a product of the attempt of the District Attorney to simply stonewall us and say we're not even going to sit down and talk to you, we're not going to make these personnel available to be interviewed because they are overburdened, and I think that just strains credulity.
THE COURT: When is the return date on your subpoenas?
MS. LEWIS: They expired long ago, your Honor.
MR. DOUGLAS: They've past, your Honor.
MR. DARDEN: It would make this moot.
MR. UELMEN: Well, it's not going to make it moot in the sense that it won't recur. We'll just have to resubpoena them if the date of return has expired.
THE COURT: Uh-huh.
MR. UELMEN: But I think the simplest solution to this problem is simply to permit us to interview these personnel.
THE COURT: And the specific issue are statements made by this witness that are contrary to the testimony here in court.
MR. UELMEN: That's correct. That's what we want to inquire into, what statements were made in the course of the grand jury interview and prep session that would contradict his testimony at trial.
THE COURT: All right.
MR. COCHRAN: Your Honor--
(Discussion held off the record between Defense counsel.)
MR. UELMEN: The questions would simply relate to their observations of what occurred in the grand jury room.
THE COURT: Recognizing that there's attorney work product interwoven throughout that. It's not that I don't think it's that simply.
MR. UELMEN: We're not interested in the attorney work product. We're not interested in their impressions. We're not interested in whatever notes they were working from in terms of questioning the witness. This is a legitimate pursuit of evidence that is highly relevant and highly probative as to the credibility of one of the key witnesses who has testified in this trial.
THE COURT: All right. Thank you, Mr. Uelmen. Mr. Darden, do you have any brief response?
MR. DARDEN: Briefly, your Honor. We understand our Brady obligations, your Honor, and we have met them. I'm just surprised to hear that the Defense feels that if their experts go on TV and say they're going to testify, that they don't have to produce a report. But if a magazine writer writes an article using unnamed sources, we somehow have an obligation to provide them--to provide ourselves to them and submit to an interrogation by the Defense. That is simply ridiculous. We have nothing at all to offer this jury or this Court or this Defendant and his lawyers regarding Mark Fuhrman. As far as the description of what happened in that mock cross-examination, they say they want to know what happened, they heard the testimony. They saw the witness. So they know. Now they know a little bit more because I've told them a little bit more. It would be unfair, completely unfair, given the agreement that we have with the Defense and given this fishing expedition that they want to go on, to require us to submit our clerks and our special assistants and our lawyers and our staff to a Defense interrogation. It's unfair and I'm sure it is unprecedented, and we object.
THE COURT: All right. Thank you, counsel.
MR. UELMEN: Your Honor, if I could just call the Court's attention to one portion of the record. Mr. Darden says that everything that went on in that session we learned from Detective Fuhrman. I would invite the Court's attention to page 18764 of the transcript, question by Mr. Bailey: "Can you remember even one of the questions that these three lawyers put to you? "Answer: No, I do not, sir. "Question: Not a single one? "Answer: No."
MR. DARDEN: Can I add this?
THE COURT: Sure.
MR. DARDEN: Miss Lewis advises me that questions are work product. But can I also give the Court an additional citation?
THE COURT: Questions may be work product, but the answers given to them are not.
MR. DARDEN: And that citation is People versus Hollander, 194 Cal. App. 2D. 386.
THE COURT: What does that stand for?
MR. DARDEN: Page 391. It stands for the proposition that the Defense can subpoena witnesses in the hope that those witnesses might somehow impeach a Prosecution witness. It stands for the proposition that they have to show that the witness has some material, relevant and admissible information.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: And as to Mr. Kardashian, I think the Court understands the factual distinctions in his situation.
THE COURT: All right. Another interesting situation we have here. Counsel, first of all, as a beginning premise, I accept that the Court does have the power and discretion to quash subpoenas in situations where it's appropriate to do so. But this is a matter of discovery at this time, not a matter of admissibility. And I agree with the Defense argument that given the publication in a nationwide--a magazine of nationwide distribution that is considered to be a news source rather than a tabloid type source of information, that that triggers an attorney's obligation to conduct further investigation by means of the discovery process, and I accept that as a given. I also accept that if a witness has made statements to counsel during the course of preparation of statements that are contrary to the testimony in court, that that is discoverable; and because of the parties who conducted this questioning, it also becomes discoverable under the aegis of the Brady doctrine. So I find that that there is a sufficient prima facie showing that there is potentially discoverable information available through Messers Yochelson, White and the law clerk, Miss Decker. But I also recognize that these are counsel for one of the parties here, which is a touchy situation, similar to the Kardashian matter. And the Court will therefore conduct in camera its own questioning of these persons. However, I am going to request of the Defense recommended questioning of these witnesses. I'm going to direct Mr. Yochelson to appear in this courtroom on Tuesday, June 27th, at 8:00 a.m. I'm going to direct Terry White to appear in this courtroom on Wednesday, June 28th, at 8:00 a.m. and law clerk Decker on Thursday, June 29th, at 8:00 a.m. and the Court will conduct in camera questioning of these individuals on the record.
MR. DARDEN: Your Honor, if I can indicate this. Miss Decker is studying for the bar exam--
THE COURT: Bad timing. Okay.
MR. DARDEN: --at this time.
THE COURT: That is--. All right. Why don't you find out when she'll be available.
MR. DARDEN: And as for Mr. Yochelson and Mr. White, can we have additional time, approximately one week, before the Court begins its--
THE COURT: Why do you feel that's necessary?
MR. DARDEN: So that we can consider appellate remedies, your Honor. Perhaps if the Court can give us until Wednesday to come back and advise the Court of whether or not we intend to seek appellate remedy.
THE COURT: Well, I would imagine whether or not you are going to seek appellate remedy is something you can decide between now and Monday; don't you think?
MR. DARDEN: I said Wednesday.
THE COURT: I know. But I'm saying don't you think you could figure that out between now and Monday?
MR. DARDEN: Plus it's 2:30 on Friday afternoon.
THE COURT: Well, I assume that the District Attorney's personnel work until 4:30 on Fridays.
MR. DARDEN: This District Attorney works until--well, hours much longer than 4:30.
THE COURT: All right. Counsel, we'll do this. I'm going to direct the Defense to submit to me recommended questioning by Monday the 26th. Mr. Darden, you can come in and tell me what the Prosecution's position is on Monday. If you feel appellate remedies are necessary, then I will consider a motion to continue the hearings of the 27th and 28th. All right. And then find out when Miss Decker will be available. And my anticipation is that these hearings, in camera hearings will take approximately half an hour is my guess at this point.
MR. DARDEN: Okay.
THE COURT: All right. That's the order of the Court. All right. Mr. Mirell.
MR. DARDEN: Your Honor, regarding the questions that are going to be proffered, are we going to be allowed to take a look at the questions?
THE COURT: Oh, yes. Absolutely.
MR. DARDEN: Thank you.
MS. LEWIS: Your Honor, before we embark on the transcripts, I do want to ask the Court to at least take under submission the ruling on the photographs. Apparently, Defense is not willing to provide Dr. Lee's photographs that he took of observations--
THE COURT: I'm sorry. That wasn't one of the items in the brief.
MS. LEWIS: It was not included in the brief. Did you want me to put it in writing?
THE COURT: Why don't you put it in writing.
MS. LEWIS: All right. Thank you.
THE COURT: All right. Before we launch into this hearing, I received a response regarding Mr. Mirell's motion from the Defense. Mr. Darden or Miss Lewis, are you going to speak on behalf of the People in this matter?
MS. LEWIS: I am going to speak on behalf of the People. We have not filed a written opposition. There is at least one case I found, citing. I know the supplemental petition from the ACLU was untimely having been filed yesterday. I will waive our objection on that basis if they'll waive the problem with the Court taking it under submission until it has an opportunity to read the case I have cited to it.
THE COURT: Sounds fair enough.
MR. DERSHOWITZ: Can we see the case you have?
MS. LEWIS: Yes. It's--it's a brand new and the latest advanced sheet, Second District Court of Appeal case, People versus Feagin, F-E-A-G-I-N, at 34 Cal. App. 4, 1427.
THE COURT: What volume of the advanced sheets is it?
MS. LEWIS: I don't remember the number, your Honor. It's--I just got it within the last few days.
MR. DERSHOWITZ: May I ask to borrow that?
MS. LEWIS: Sure.
MR. MIRELL: I'm aware of the case, your Honor.
THE COURT: All right. Mr. Mirell. Good afternoon.
MR. MIRELL: Good afternoon, your Honor. Thank you very much. First, let me introduce myself. Douglas Mirell, M-I-R-E-L-L, volunteer counsel representing the ACLU Foundation of Southern California. Joining me here in court is an individual who assisted me in the briefing on this, David Crochetiere, C-R-O-C-H-E-T-I-E-R-E. Also, as the Court knows, Miss Sager is present as well, and she filed, as the Court indicated, a joinder on behalf of nine media entities including all of the major television networks, the Los Angeles Times and others. Since the Court is aware of Defendant's joinder, let me just simply note that also present in the court today, and I received a joinder from him, although he arrived too late to submit it to Miss Robertson, is Rex Reeves, who is appearing on behalf of dismissed juror Florence--Francine Florio-Bunten, and Miss Florio-Bunten is here in Court as well. I want to thank the Court first for allowing us this opportunity to appear before you and for hearing this motion.
THE COURT: Well, Mr. Mirell, let me--forgive me for interrupting you, but I have familiarized myself with the motions filed, and let me cut to one particular issue that I'm interested in.
MR. MIRELL: Sure.
THE COURT: It is true that a number of the jurors who have been dismissed from this case have voluntarily made their identities known to the public through the news media and have acquiesced interviews and, in fact, have affirmatively gone out and sought to be interviewed. Some have sought to financially gain from this experience. Let's assume that perhaps the Court's interest in protecting the privacy of those individuals has disappeared since those individuals have voluntarily decided to put themselves in the public eye. However, a number of the dismissed jurors have not so made themselves public figures, have declined to be interviewed, have in fact been traumatized by the accesses of the news media in hunting them and those individuals maintain that posture to this date. Should I make a distinction between those two?
MR. MIRELL: Well, your Honor, I think there are issues that may be raised that unfortunately we are not in the best position or really any meaningful position to address, because it may well be the case that with respect to the dismissal of certain of those jurors, there may be--and we have acknowledged this in our briefing--there may well be instances where releasing certain portions of transcripts of dismissal hearings might well implicate personal privacy interests and might well constitute an unwarranted invasion of an individual's personal privacy rights in a particular case with respect to particular information.
I, however, cannot accept, your Honor, the notion that a blanket order which precludes the release of any portion of any of the transcripts concerning any of the hearings concerning dismissal of any of these jurors is appropriate. Under the governing law, it's not narrowly tailored. There's no compelling interest that's being supported by that.
THE COURT: Let's not even get into that argument. But do you agree that that are perhaps some instances of personal privacy that the Court should continue to protect? Let's assume that I'm willing to disclose those transcripts that involve individuals who have decided that their privacy is not of interest to them.
MR. MIRELL: No. I understand that. Let me say this. I think that with respect, for example, to--let's take the two jurors whose names have not been publicly disclosed as of this point. With respect to those two jurors, I would not expect, for example, that the Court would release portions of the transcripts concerning their dismissal which identify them by name if there are any such portions. However, I do believe, your Honor, that there is every reason and no good reason not to release those portions of the transcript which describe the reasons why these jurors have been dismissed, which describe the evidence that was before the Court, which describe the Court's rationale for dismissing these jurors. So with respect to them, for instance, I would say that at this point in the trial, it probably is appropriate to retain their--their names in confidence. With respect to another category of jurors, Miss Hampton and Miss Chavarria, who I think are the two who have elected not to speak to the press in any meaningful way, although Miss Chavarria I believe did give an Associated Press interview one or two days after she was dismissed. But in comparison, at least to Kathryn Murdock, to Michael Knox, to Tracy Kennedy, to Jeanette Harris, to Miss Florio-Bunten, to Mr. Craven, those are two who are in a somewhat different category. But I would suggest, your Honor, that with respect to them, we do not have the name disclosure issue that's meaningful. They've already--their names are already known. They have already--unfortunately, your Honor, this may be a digression, but in the case of Miss Hampton, I must say that I believe that her dismissal and the way in which the Court handled that dismissal is an example, a prime example in fact of where the Court's on the record description of the dismissal decision and the rationale and the contemporaneous release perhaps of the transcript, sensitively redacted if there are personal privacy issues there, could have avoided the kind of feeding frenzy that ultimately occurred not only at Miss Hampton's home I might add, but at the homes and businesses of a number of other jurors. Because as the Court will recall, the Court did not disclose which of the jurors it had dismissed. And so the press, as eventful--as inventive as they are, were going about seeking to try to find out what juror might be being dismissed. So my concern with respect to those jurors is that what the Court ought to be doing in that case is yes, perhaps reviewing the transcript as quickly as the Court is able to do, determine whether those transcripts contain any portions which do implicate a clearly unwarranted invasion of personal privacy and make appropriate redactions of those transcripts at the time. And with respect I think though to the other six jurors, your Honor, those who have gone more or less fully public, Miss Murdock, Mr. Knox, Mr. Kennedy, Miss Harris, Miss Florio-Bunten and Mr. Cravin, I think that it is doing no one a service, particularly the jurors themselves, the former jurors themselves that is, to have their transcripts and the records of their dismissal proceedings kept sealed, because what has happened, as the Court well knows, is that a persuasive regime of rumor, speculation and innuendo has taken the place of fact. And I think, your Honor, too that that speaks to a second issue which we raised in our initial papers, which is the importance of the Court actually articulating on the public record and perhaps even in the presence of the jurors the reasons for its dismissal decisions at the time those dismissal decisions are made. That is interestingly enough one of the--one of the salient aspects of the Feagin case that has just been cited to you by Miss Lewis. In Feagin, what happened is that the Court in fact disclosed on the public record what it is that--why it was that it made a decision to remove a particular juror. And I think that practice buttressed and bolstered by the practice of Judge Ouderkirk during a much more commonly sensitive Reginald Denny beating trial where Judge Ouderkirk contemporaneously released the transcript of juror dismissal hearings--
THE COURT: Ouderkirk.
MR. MIRELL: Ouderkirk. I'm sorry. Where Judge Ouderkirk did that, your Honor, he I think performed a public service because he--even though the dismissals occurred during the midst of jury deliberations, he eliminated the possibility that there would be speculation or guessing about why it was that a particular juror had been dismissed and what the--what the motivating factors were.
THE COURT: Do you know Judge Ouderkirk's present position on this issue?
MR. MIRELL: He has not communicated with me, nor I with he, your Honor.
THE COURT: I think he regrets that situation because that particular juror received death threats and was erroneously identified as being some other person, which resulted in problems with the other person. There were significant problems in the disclosure of that information.
MR. MIRELL: Well, your Honor, with respect to--with respect to the jurors who have already been publicly identified here, misidentification is not a problem. And with respect to--I have no information one way or the other, your Honor, which would permit me to comment upon the other aspect.
THE COURT: Just a digression.
MR. MIRELL: Yeah. But in any event, I don't--I don't know what the Prosecution's view on the underlying motion is. But, your Honor, I think that the Feagin case, if they're going to cited it to you, has no bearing upon this issue whatsoever. It's simply the Court's--as I understand it, the latest statement on the basic underlying issue of manifest necessity versus good cause and what might constitute that. But I think it is interesting, your Honor, and I commend the Court to footnote no. 6 in the case, in which the Court lays out albeit with lipsus a seven-paragraph description, a seven-paragraph description of why it is specifically that this particular juror was dismissed. And, your Honor, I must say that by contrast, what's happened in this case is that we have either seen a total absence of any description whatsoever in the case of Miss Jeanette Harris about why she was dismissed--the Court did not even state its usual dismissal for good cause found, rationale. But with respect to other jurors, Tracy Kennedy, he is the only juror who has been dismissed from this case where both sides were solicited and acquiesced publicly here in open court to that dismissal, and the Court found abundant good cause.
Now, what was so different about Tracy Kennedy than about any other juror that caused the Court to do that in that case and that case alone? I don't know. But the problem is that the absence of the Court's articulation of a rationale for that dismissal decision and for all of the other dismissal decisions is that the public has been left to speculate. And speculation, your Honor, in the context of a public trial is just not what ought to be encouraged. And I think both the People under proposition 115 and the Defense under the sixth amendment and article I, section 15 of our California constitution, each have a right to a public trial. And the cases that we provided to the Court already manifestly demonstrate that a clear component of a right to a public trial is the right to know what's going on at all stages of the proceedings. And if that--and if those proceedings are not such that the Court feels comfortable providing access, although in some of the cases we've provided to you, the Court will note that even in juror dismissal hearings, there have been courts which have concluded that the press ought to be physically present during those dismissal hearings, ought to have access to those--to even post-trial investigations. But that's not what this motion is about. We're not here requesting that the media at this point or the public be allowed into those hearings. What we are saying is that at bare minimum, what this Court ought to do to insure the public trial right is to contemporaneously, promptly, as promptly as possible release the transcripts of those proceedings and related development.
THE COURT: Do you think I should at least require that notice be given to these jurors who maintained or at least a notice that unless I hear from them, that I'm inclined to release the transcripts redacted for personal information?
MR. MIRELL: Well, your Honor, I don't know of any case which has ever said that jurors ought to have some ability to control what it is that they--what it is that is released about them and their conduct during the course of trial.
THE COURT: You think dismissal for misconduct is sufficient to waive anybody's right--
MR. MIRELL: I do, your Honor. And we heard from Mr. Dershowitz last Friday that this is not--and I must accept the fact because I've not been privy to any of the transcripts. Mr. Dershowitz said last Friday that this is not the kind of case where dismissals are for typical reasons, illness, death, things of that character, extreme family emergencies. He has asserted--and I appreciate that the Prosecution has contested at least to some extent the fact that each of these dismissals is a dismissal for misconduct. And I think what that means or at least what it says to me is that when jurors are engaging in misconduct, they are violating a public duty, a public trust. They are violating their solemn oath to do what it is that you have instructed them to do. And I think when that is found and when the Court finds good cause, good cause to find that that has occurred, then I think there has been a waiver, and I don't believe that it is necessary for this Court to make inquiry of the jurors.
THE COURT: I can think of one situation--two situations where I did not make a finding of misconduct.
MR. MIRELL: Okay. All the more reason to release the transcripts, your Honor. If a juror is being dismissed for reasons other than misconduct and they are not--and I would hasten to add that even if they were being dismissed for what Mr. Dershowitz had characterized are traditional reasons, maybe there's some other reason other than misconduct or traditional reasons, but--
THE COURT: No. We had two traditional reasons.
MR. MIRELL: Okay. If there are traditional reasons, I would suggest that there are ways of sensitively redacting the transcript of those proceedings to the extent that they really do trench upon matters that are private. And I would also suggest to the Court--and this is something we suggested back in April when we initially wrote a letter to you on this specific subject. I would suggest to the Court that when in the future, it is--I hope it doesn't have to engage in the process of determining whether or not additional jurors are to be dismissed. But if that unfortunate eventuality should come to pass, then I would suggest that what the Court ought to say at the outset of the proceedings is, look--to the individual juror--the transcripts of these proceedings are going to be made public, but they will not be made public until after you're dismissed. I think that's the way of remedying that problem on a going forward basis. Hopefully there won't be any need to deal with that on a going forward basis. But in any event, I appreciate the Court's forbearance on this, and I would simply reserve the opportunity to respond to counsel with respect to whatever they may say about the Feagin case.
THE COURT: All right. Thank you, counsel. Excuse me. Miss Sager. Good afternoon, counsel. Do you have anything additional to add?
MS. SAGER: Just very briefly, your Honor. I think Mr. Mirell has covered most of the points. The only thing that I would say in addition to that is that the hearing last Friday is I think a clear demonstration along with all the other problems he raised of the problems that arise from holding proceedings behind closed doors. You have serious accusations being made by counsel for the parties against one another and the public is left without any knowledge whatsoever about whether there is merit to the accusations or whether the proceedings that the Court is engaged in are fair, and the proceedings as they will ultimately result, is a fair result. And all of this has resulted I think in some kind of taint on the proceedings which can only be solved by releasing the materials and letting the public know what is going on.
And that's precisely what the third circuit Court of Appeals indicated in the Samone case; that once the taint has been raised, that then it is critical that the public be advised of what's going on so that they are assured that a fair proceeding is being held. And whether or not, as you mentioned to Mr. Mirell, some of the jurors have not been released for misconduct, I would think that that would be an even greater impetus for releasing information to the extent the Court can do it as to why they were released, because if statements are being made in court the jurors are being all released for misconduct, then I would think those individuals would have a concern about the public having a perception of them that is a false perception. And to the extent those have been released for misconduct, then the public should know that there is justification for those releases and not that--as some accusations have been made back and forth--that they're being released for reasons other than good cause. And the public is vitally interested in this. I've received a number of calls, as I'm sure the parties have and probably the Court, with people saying to me as one woman did last week from Northern California, "What are they hiding? Why don't they want us to know? There must be something there." And for the same reason that voir dire is held in the open, so the public knows that a fair process is being held and the result is a fair result, I think it's equally important that the public know when a juror is dismissed, what the reasons are for that dismissal. And I'd add nothing else, your Honor. I think that the time has come for release of these materials. There's no reason not to release them at this point. And as opposed to waiting for the end of the trial or some future date, the jurors who have been released have already been the focus, as your Honor mentioned, of a great deal of scrutiny. And if a further delay occurs before the release of the transcripts, they'll simply be the focus of additional scrutiny down the road. So it's not as if people are not going to wonder what has happened and why they've been released. If there's been misconduct, the public should know that. If they've been released for other reasons, the public should know that as well. So I would join in Mr. Mirell's motion and urge the Court to release the transcripts at this time. If there's a need to redact because of some inherently personal privacy interest on behalf of one of the jurors, then only those portions be redacted that must be redacted, just as the standards for voir dire would have the proceedings completely open, but for any inherently private material that must be done in chambers. Thank you, your Honor.
THE COURT: Mr. Dershowitz.
MR. DERSHOWITZ: May it please the Court, this is a triangular issue. The Defendant has a sixth amendment right and the related California provision to a public trial. The media and the public and the ACLU have a first amendment right, and jurors may have an interest in privacy. With all due respect, the state does not have any rights and probably doesn't even have a sufficient interest to give them standing to participate in this discussion that perhaps explains why up to now, I don't even know what the state's position is. When I asked what the state's position is, I was not told by the state, but then I was told by a representative of the media that the state will surprise us by coming in and opposing this request. I'm not sure the state even should be given standing to make any argument because in some respects, it does not really involve any interests that they can specifically state. In very typical cases, there's a conflict triangularly between not the juror on the one hand and the public and the Defendant on the other hand, but often between the Defendant and the public. In many of these cases, the Defendant does not want the transcript revealed, and then you have a constitutional clash, the first amendment versus the sixth amendment because the Defendant can waive his sixth amendment right to a public trial within reason. In this case, the Defendant most definitely asserts his sixth amendment right. He wants this case to be entirely open. He wants this proceeding to be open as you know, your Honor. He requested that he be present. That has been turned down. That's for a different time and a different day. But he wants the public to know what went on there and for a very important reason. In my experience, your Honor, in more than 30 years of practice, I have learned that when the public is allowed to hear about these proceedings, the public can be extraordinarily helpful to the Defendant, particularly in a case like this one. Sources of information from the most unpredictable venues become--come to the attention of the Defense. And if this transcript were to be made public, we can expect people to come and call us and tell us about information they may have which we do not now have.
And part of the reason for a public trial is so that, because the proceeding is not held in secret, the public can participate through the Defense and indeed through the Prosecution as well if there's information that they would want to have made available to them. So our request is that the entire proceeding be made public. If your Honor feels that there is any particular juror--and I think, your Honor--and perhaps we have a disagreement here and this is a hard disagreement to move in public. We believe that there is only one juror who has any arguable privacy interest in this case and that all the other jurors were in fact dismissed for nontraditional reasons. Your Honor may have a different view of that. That is something that we can't debate without getting into the specifics of the transcript. I've read the transcripts. You were obviously there and I would love to argue with you about this now, but I can't because we can't reveal this in public. We are denied the ability to make some of our case precisely because this has been closed to public discussion. And so we assert an independent right. We assert a right separate from the right of the press. We assert a Defendant's sixth amendment right to have this material disclosed so that it may aid in his Defense so that he may be given the opportunity to supplement the arguments that we made last week and arguments that we may have to make at some future time relating to the fairness of this trial and the correctness of your Honor's rulings and the actions of the Prosecution in leading to some of the challenges in issue here. As your Honor notices, I am skirting around issues. And that's the difficulty that we have when we publicly argue about a matter that's subject to seal. But your Honor knows what I'm talking about. I hope I know what I'm talking about, and the problem is that nobody else can be fully advised as to what we're talking about, and, your Honor, that's precisely the problem. Thank you.
THE COURT: All right. Thank you, counsel. Miss Lewis.
MR. REEVES: Your Honor, may I just be heard one moment? I am here for Miss Florio-Bunten. My name is Rex Reeves appearing on behalf of Miss Florio-Bunten.
THE COURT: Good afternoon, counsel.
MR. REEVES: Thank you, your Honor. Miss Florio-Bunten strongly supports the application to have the transcripts unsealed. And hers is a case study in the very concerns the Court was speaking to earlier. Miss Florio-Bunten has not made tremendous efforts to be--to make herself available to the press although she has spoken to the press. She's tried to maintain some semblance of a normal life although the press has been camped out at her house continuously since her dismissal, and she's tried to address some of the questions of the press. However, there has continued to be this tremendous amount of speculation that Mr. Mirell spoke to about the reasons for Miss Florio-Bunten's dismissal from the jury in this case. This speculation has ranged from whether she had a book deal to whether her husband had met with a literary agent to whether she was hitting other jurors or trying to trip jurors or even allegations that she's just plain a racist. But these allegations are utterly and totally false; in fact, slanderous. One of the basis apparently--it's unclear what the basis--Miss Florio-Bunten doesn't know the basis for her dismissal. But one of the basis apparently was a letter that has been discussed in court I believe last Friday, the source of which is apparently contested. As part of unsealing the transcripts in this case, Miss Florio-Bunten requests that any documents upon which the Court has based any decision to dismiss any jurors, and in particular, Miss Florio-Bunten, that any such documents and any such letter that's been brought to the Court's attention also be released to the public. Miss Florio-Bunten believes that she was in fact sabotaged in an effort to get her off the jury by unknown persons, and the only way we'll be able to fully explore this and the public will be able to fully explore this and the only way Miss Florio-Bunten will be able to try to find out why she was in fact dismissed from the jury or possibly targeted for dismissal from the jury is to not only obtain the transcripts, but also obtain this mysterious letter or any other documents that the Court may have come into possession of in the course of its investigation or interrogation of jurors in this case. And to the extent that the Court is concerned about any kind of privacy rights, I cannot speak for any jurors other than Miss Florio-Bunten, but Miss Florio-Bunten certainly waives any privacy rights that she may have in connection with the transcripts of the proceedings.
In short, your Honor, we concur that the public has a right to know. We certainly believe Miss Florio-Bunten has a right to know why she was dismissed after giving up five months of her life in this case. She wants to be vindicated. She believes she will be vindicated and that the release of these transcripts and the release of any documentation upon which the Court based its decision will be a necessary first step in achieving that vindication.
THE COURT: Thank you, counsel.
MR. REEVES: Thank you, your Honor.
THE COURT: Miss Lewis.
MS. LEWIS: Your Honor, the Prosecution is in a--not quite between a rock and a hard place, but in a difficult position. If we had our druthers, I suspect that we would like to have these transcript all unsealed. And I say that only in terms of our druthers being those that our very limited self interest would protect, to show that Miss Clark's done nothing wrong, Mr. Darden had done nothing wrong, no D.A. investigator done anything wrong. But, Judge, we have to look at the overall larger picture here. This feeding frenzy is a phrase that was used a few minutes ago, and as the Court is well aware and everyone else, that's what this entire case has been about and from the beginning, from the 13th of June on through to the present date in terms of the extreme and really unwarranted press interest in this case. Now, the reason why I cited the Feagin case to the Court, Feagin--and apparently Mr. Dershowitz has not had an opportunity to read it, because it does address the Defendant's sixth amendment right to an open trial, and it does hold in this particular case, which happens to be Second District of the Court of Appeal, that the Defendant in that case waived the right, if there was any, to have the public participate in that aspect of trial because it--it consented to the procedure initially. It's--the facts are very similar to this case in that in that case, the Defense initially agreed to the in camera procedure, and it was only after several jurors were questioned that the Defense suddenly took umbrage and wanted to have them open, wanted to have the Defendant present. This case holds that the Defendant had no right to be present under those circumstances having waived it initially. It also holds that the Defendant had no sixth amendment right to access by the public with regard to the juror misconduct or juror removal I should say issues.
It also held--our Second District did--that even assuming the sixth amendment public trial guarantees applied to the general juror removal proceedings, and it says--we don't think they did, but even if they did: "The presumption of openness is rebutted by a showing that exclusion of the public was necessary to protect some higher value such as a Defendant's right to a fair trial or the government's interest in preserving the confidentiality of the proceedings." I interpret that, your Honor, as our obligation to the People of the State of California to help do what we can to preserve the integrity of these proceedings. This Court during the jury selection process, which seems like years ago now, but several months ago, assured these jurors that it would do what it could in its power to maintain confidentiality and anonymity over the particular jurors.
THE COURT: How do you respond to the argument though that if there's been an allegation of misconduct, the Court has found that there's sufficient misconduct to excuse that juror, that that person by committing misconduct--and in fact, during the course of some of these proceedings, one party or the other has urged the Court to have the juror dismissed, referred to the Attorney General for Prosecution?
MS. LEWIS: I don't think it is required of the Court nor do I think it would be a good exercise as a matter of precedent and public policy for the Court to have to make that kind of factual determination juror by juror which is what would be required. I don't think a waiver necessarily applies because the--not only are we talking about any particular juror, we're talking about other--we're talking about third party's comments with regard to things happening with those jurors. I mean, the investigation has not been in a vacuum with regard to these jurors. I mean, the Court has not just talked one on one to particular jurors about other information available. So by even assuming that those jurors had waived that aspect, the other surrounding information has not been waived and should not be waived.
I am concerned because this has--may well have a chilling effect already given the public's--the media's scrutiny rather and the media as distinguished from the public, but the media's scrutiny on the jury and juror issues is really unwarranted. And this is likely to have a chilling effect on the public out there. The public is who we depend on in selecting our jury pool. And as the Court well knows, we depend on their willing cooperation to come to court to serve. We do not have the resources to follow up and put people in jail who ignore summons to jury subpoenaes. And I'm not suggesting the Court should even do that. But it does have a chilling effect. This is not the only trial going on in this county nor is it the only high publicity trial. There's another high publicity trial regarding two brothers which is scheduled to start later this summer. Now, what this Court does in this case may have a direct bearing on the ability of that court to obtain jurors and a representative cross-section of the community in that case. The jurors in this case were indeed promised that anonymity. I don't think they've waived it by the findings the Court has made with regard to some of those jurors. And I think looking at the overall picture in the scheme of things, the Court owes it to the integrity of this process not to turn around and betray the trust of the jurors whom it has promised, all of them, individually and as a group, betray that trust that the Court--that they've had now that the Court has instilled that in them. I mean, the Court offered up these--this anonymity as one reason for their participation on this case, that the Court would try and protect them. Well, what are all of the jurors going to think and all of the panelists of prospective jurors out there and the community going to think if the Court suddenly does an about face and just releases that all?
THE COURT: But I've got jurors out there writing books about this. Hardly a privacy interest worth protecting; wouldn't you say?
MS. LEWIS: Well, your Honor, with regard to some--
THE COURT: I mean, we've got jurors running around in limousines to talk shows. Hardly a privacy interest any longer.
MS. LEWIS: I am suggesting further then the privacy interests of those particular jurors who may be, you know, writing a book despite not having indicated any intention to do so at least overtly and openly and candidly to the Court or counsel during the voir dire process. I'm concerned about the--
THE COURT: Well, don't you think the public is entitled to know the unusual currents that are swirling in amongst the jury panel here? Wouldn't you agree that this has been an atypical case regarding the voir dire process and who's willing to serve on this case?
MS. LEWIS: Well, it has been atypical. But I'm asking the Court to ensure that it does not get even further--
THE COURT: Weren't you surprised when we asked people are you willing to be sequestered for six or eight months and we had volunteers? Didn't that mildly surprise you?
MS. LEWIS: It is clear to me personally--and I'll speak only for myself--that many of the prospective panel had hidden agendas. And that was certainly a fear going into this case. We didn't anticipate, however, that it would result in an avalanche of volunteers virtually. I'm exaggerating but--you know, and so many people wanting in on the jury. I'm tempted to mention the issue that the Defense blew out of proportion on an offhand comment with regard to polygraphing jurors. I mean, your Honor, there's nothing the Court could have done more than it already did in trying to ensure the integrity of the individual jurors who were eventually selected. But my concern is for the process and its perception. We know that an overwhelming number of people out there, their already perhaps not very high perception of the criminal justice system has already been impaired by many aspects of this trial, and this feeding frenzy by the press is only to the derogation of the rights and the interest in the public, the interest in the People of the State of California in seeing that the People have a fair trial and seeing that the man accused of a double murder has a fair trial. And the Feagin case does go directly to the Defendant's inability at this stage of the proceedings to require the Court to release those transcripts.
THE COURT: All right. Thank you, counsel. Madam reporter, how are you doing?
THE COURT REPORTER: Fine.
THE COURT: All right. Mr. Mirell, any brief response?
MR. MIRELL: Very brief, your Honor. There are just a couple of points that I wanted to raise. The Friday hearing last week, as our supplemental memorandum makes clear--and I'm not going to belabor the point--there are bona fide disputes--we've just seen one here in court--about the Court's belief that there are two jurors who were dismissed for traditional reasons and Mr. Dershowitz has viewed there's only one.
THE COURT: Well, I was there. He wasn't.
MR. MIRELL: I appreciate that, your Honor. And perhaps because you were there and because you contemporaneously heard what went on, we would be able to resolve this dispute rather quickly by--if the public and the press were given the opportunity to read what transpired where you were there. Now, they may agree with Mr. Dershowitz who's said he's read the transcript after doing that. But in terms of the basic notions of the public's confidence in the integrity of this Court's decision making processes and in the confidence that it has to have, particularly in light of the pending motion that the Defense has filed claiming that the Prosecution is targeting jurors for dismissal, a motion which is--which if it's bona fide, if it's true, is outrageous. It would be outrageous for the Prosecution to be doing that. But the Court's--but whether or not that's happening and the integrity and confidence that the public has to have in the Court's ultimate determination upon the bona fides of that motion is intricately interlinked I submit to the disclosure of the transcripts of what actually went on.
I submit that it's impossible for anyone, any member of the public or the press to have confidence in the decision making process of the Court if the transcripts are not released both in the context of the dismissals initially and in the context of the ruling on the pending Defense motion that was argued here last Friday. Your Honor, I think that the Court had it right, precisely right when on April--when on April the 12th, it conducted the post-dismissal interview of Jeanette Harris--and at the end of that interview, the sheriff's department Commander Patrick Holland objected, as the Court may recall, to the release of the transcript of that interview. And this is what you said. This is what the Court said in response. You, the Court, said:
"This is a public court. This is a public inquiry. Because of the nature, I decided to make it a closed hearing, closed to the press, closed to the public for purposes of taking the testimony here today. But I'm under extreme pressure to make this transcript public, and I frankly don't see any compelling reason not to make it public at this point," closed quotes.
And the transcript was duly released the following morning. That we submit is the type of practice that should have been followed up to now. But since one ought not to reject wisdom merely because it comes late, in the words of the late Justice Felix Frankfurter, I would suggest to the Court that there is a way of undoing the damage that has been done and a way of resurrecting the reputations of the jurors who have been dismissed and who may have been--and whose representations may be being besmirched by the wave of rumor and speculation that has flooded the airwaves and has flooded the print media. And that's why releasing the transcripts now of those jurors who--of the dismissals of those jurors. And I do want to join Mr. Reeve's comments, that to the extent that there are other evidentiary matters--I have no idea what they may be. The Court last Friday said there was no letter with respect to the alleged anonymous letter from a literary agent concerning Miss Florio-Bunten's--
THE COURT: I don't think that's what I said.
MR. MIRELL: That's what the official--that's what both the unofficial and the semi-official official versions of the transcript say.
THE COURT: I don't--I may have said that wasn't the reason.
MR. MIRELL: Okay. Well, the transcript currently reads there was no letter. So that's--the Court ought to take a look at that. But in any event, what's clear is that there is a divergence of view on that question between the Court perhaps on the one hand, the Defense on the other hand when Mr. Cochran said there was no anonymous letter that his office received and the Prosecution, Miss Clark, said there was an anonymous letter. And we have phone logs too. All of those are issues--
THE COURT: All right. We're speaking about three different things.
MR. MIRELL: Okay. That may well be, but that's probably my fault. But it's my fault only because the transcripts haven't been released and we don't know precisely what's going on here. And there really isn't a good reason why we don't. I think the question of what the Prosecution's obligation is, I think the Prosecution's obligation is clear. And I'm surprised and I'm disheartened that they've not joined this motion because I think they could have had their druthers and I think they should have had their druthers and should have joined the motion because there is a constitutional right in the State of California. Under the crime victims' justice reform act of 1990, there is now a public right to a public trial. That's a right held by the People of the State of California. That's who the Prosecution represents. Article 1, section 29 of our state constitution says that that's a right that ought to be taken into account. And I heard nowhere in Miss Lewis' argument any acknowledgment that that occurs. But what I did hear is a claim that, well, maybe jurors are somehow going to be chilled. But I think there are a couple of responses to that. One was the response that your Honor gave, that it is--that this is in fact an atypical case and that no one, not legislators in Sacramento, not members of the county board of supervisors across the street ought to be taking the Simpson case as an archetype of anything. This is sui generis. And if that--and if the case were possible to throw into a legal dictionary definition, I think this would be it. This is not the case about which to--from which to extrapolate rules of general applicability. This is a case that breaks the mold in many, many, many ways. And I think the public is smart enough to understand that and to understand that this is an extraordinary case in which people are doing extraordinary things. Jury consultants tell us that jurors don't want to be sequestered. Yet here, we have jurors who volunteer to be sequestered. We have a situation though, your Honor, where by failing to disclose these transcripts, what we may be chilling is something that's much more important. We may be--we may be chilling the fact that jurors--the public's notion, the public's understanding that jurors are engaging in misconduct. And I think one of the things that we do affirmatively want to chill, your Honor, if anything else, is juror misconduct. And I think to the extent that the public understands why it is that jurors are being dismissed, if it's 10 or 11 of the jurors who are being dismissed for misconduct reasons, the public has a bona fide reason and a right to know why that's occurring. And I think the Court can easily satisfy that concern, and in doing so, in doing so, serve other interests as well, serve the Court's own interest in ensuring the integrity of the system, serving the public's interest in the integrity and the fairness of these specific proceedings and in any verdict that may ultimately be passed upon by these jurors, and it also serves the interest of the jurors themselves, because it is they who have had to bear the brunt of responding to what may be inflammatory and irresponsible and reckless allegations made about the reasons for their dismissal. That would all be remedied. Those problems would vanish once these transcripts are released, and this would be a nonissue and the Court would not have to see me again on this issue. And I appreciate again the Court's indulgence.
THE COURT: On this issue.
MR. DERSHOWITZ: One minute if I may, your Honor.
THE COURT: Certainly.
MR. DERSHOWITZ: We believe the Feagin case supports our position. I have read the Feagin case within the time it was given to me and now, and indeed that raises a different problem. We don't think the Prosecution should be allowed to come in here having had a case, knowing what their position is and simply state to the Court on the day of the argument, this is our position. This is our case. Talk about reciprocal discovery, that's just not fair. If they have a case, if they have a position, we have the right to know it in advance, we have a right to think about our response to it, we have a right to work out our response to it, we have a right to search and shepherdize cases, and they have no right to blindside us at this point.
THE COURT: Well, Mr. Dershowitz, you filed a response to the motion citing cases and authorities. The Prosecution chose not to even do that. What does that tell the Court? So maybe you're all wound up about nothing.
MR. DERSHOWITZ: Well, no, you may be right, your Honor. It tells us if the Court believes that the government's position is at least ambivalent or not--
THE COURT: Well, if the Prosecution chooses not to even respond in writing--
MR. DERSHOWITZ: Well, we accept that. And the reason the Feagin case supports us is because in Feagin, the issue was simply whether--
THE COURT: Counsel, I've read the Feagin case. I'm familiar with Judge Brandlin.
MR. DERSHOWITZ: Right.
THE COURT: Justice Fukuto, Justice Boran.
MR. DERSHOWITZ: In light of your Honor's statements, I think I have nothing further to say. Thank you.
THE COURT: Thank you.
MS. LEWIS: Your Honor, before you say anything more, in light of the Court's statements, I want to let the Court know that we are very seriously opposing the release of these transcripts for the reasons which I have revealed. And please do not take our lack of--our failure to file a brief as any indication that we're not. In addition, when I first--when we first called--when the Court first called this for hearing, I stood up and said their response was untimely, the ACLU supplemental brief was untimely. We're willing to waive untimeliness if they're willing to waive--on the citing of this case. I don't know what we're bickering about with regard to that now. But the point is, your Honor, this--
THE COURT: No. Mr. Dershowitz indicated he had reasonable opportunity to read it. He's argued it.
MS. LEWIS: I want to insure that the Court is satisfied that the Prosecution feels the Court has had good cause all along to maintain the confidentiality of those proceedings which resulted in the sealed transcripts, that as a matter of both--with this particular case and for public policy reasons for future cases, the Court should maintain that confidentiality. And I want to make the final and what is fairly an obvious point, that the Defendant is having a very, very public trial and the Court has been very generous in allowing the cameras to remain in the courtroom throughout these entire proceedings. We are talking about a very small portion of an otherwise very, very public trial, and it does not--just because the press wants to know this information does not mean it is in the best interest of the public when you weigh all of the concerns of the public to release it.
THE COURT: Thank you, counsel. Well, I think this is a situation where we'll let the public decide what's in the best interests of the public. The Court will undertake to redact the personal identifying information of the jurors involved. And so counsel are aware, the Court did on many of these circumstances independently on its own motion call witnesses, examine witnesses during the course of these proceedings. The Court will redact from the transcripts names and places of employment, other identifying information. There are several hundred pages of these transcripts in several volumes, perhaps dozens of volumes, maybe 30 volumes of proceedings that the Court has conducted with regards to these. So they will not be immediately available. You should anticipate release of these transcripts close of business July 3rd. That should be sufficient time.
MR. REEVES: Your Honor, may I ask one question?
THE COURT: Certainly, counsel.
MR. REEVES: What about the underlying documents and things like that that may have come up--
THE COURT: I'll make that available.
MR. REEVES: Excuse me?
THE COURT: I'll make that available.
MR. REEVES: Thank you, your Honor.
THE COURT: There's an old Chinese saying, be careful of what you wish for. Thank you.
(At 3:30 P.M., an adjournment was taken until, Monday, June 26, 1994, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance a. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Friday, June 23, 1995
Volume 174 pages 33457 through 33693, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 174 pages 33457 - 33693
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Day date session page vol.
Friday June 23, 1995 a.m. 33457 174
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S witnesses direct cross redirect recross vol.
Weir, Bruce 174 (Resumed) 33464gc 33486n
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Weir, Bruce 174 (Resumed) 33464gc 33486n
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. Page vol.
1197 - Curriculum vitae 33479 174 of William M. Shields
1198 - 1-page document 33511 174 described as tables 24(A), 24(B) and 24(c) prepared by Dr. Weir
1199 - 1-page document 33515 174 described as tables 25(A), 25(B) and 25(c) prepared by Dr. Weir
1200 - 1-page document 33525 174 described as tables 23(A) and 23(B) prepared by Dr. Weir
1201 - Cellmark database 33551 174 table 1
1202 - 1-page document 33559 174 entitled "Percentage of population included in DQ-Alpha mixture 1.1, 1.2, 4 (1)
1203 - Computer printout 33564 174 from slide presentation entitled "Steering wheel mixture 4 allele contributors
1204 - Computer printout 33566 174 from slide presentation entitled "Steering wheel mixture 4 allele contributors
1205 - 5-page document 33588 174 dated November 11, 1994