mtDNA Evidence:  Ruling on Limits of Expert Opinion

In Response to Objection by the Defendant:  Guilt Phase

June 1, 2004

JUDGE: Okay. This is the case of People versus Scott. Record should reflect that these proceedings are taking place in chambers at the request of Mr. Geragos. Mr. Geragos.
GERAGOS: Thank you, judge. The ruling by Judge Girolami, which this court asked, and I agreed to stipulate was binding upon this court, was that all that the expert could refer to in rendering an opinion on the Mitochondrial DNA was that one in 112, I believe, and I think I won the bet with the other Mr. Harris who thought it was one in 110. I went back and checked.
David Harris: I didn't bother to check.
DISTASO: We are going to take his one in 112.
GERAGOS: That on the Caucasian database of the FBI pool, and he specifically ruled you cannot say.
JUDGE: That it matched?
GERAGOS: Right. Because it does, it is not a match. And so Mr. Distaso in his opening was saying that he was referring both to the microscopic analysis, which I understand if I know what he's referring to is Rod Oswald's comparison, where he could not exclude it, and that was consistent with Laci’s hair. And with the Mitochondrial DNA saying it was a match, it's clearly not a match. Number one, the judge ruled it's not a match, and said the most you could say is one out of 112. I believe that that should be corrected for the record.
JUDGE: Yes, I think so. First of all, it's true that I asked Mr. Geragos and the District Attorney if they were going to be bound by Judge Girolami's rulings. I was not aware of that ruling, obviously, that that's what he said. So I have no way of knowing that. But I accept your representation.
GERAGOS: I'd be happy to supply you with the nine volumes of scintillating testimony on Mitochondrial DNA.
JUDGE: I got them right over there.
GERAGOS: In any event, I'll ask you to clean that up.
DISTASO: I can fix it.
JUDGE: Go back,
DISTASO: Just go back and say how the experts are going to explain. They are going to take the statistics, you know. I mean they don't,
GERAGOS: I think that the Court.
JUDGE: Wait, wait. We have got three people.
GERAGOS: Because I objected it was. And I was, you didn't know.
JUDGE: I didn't know.
GERAGOS: You wanted to slough me off. I think that the Court should say, I have reconsidered Mr. Geragos' objection, and I'm asking Mr. Distaso to clarify what I think was a misstatement.
JUDGE: Okay.
D. HARRIS: So we're really clear about the terms Mr. Geragos was using, the only thing that they could testify to is that's not exactly accurate. They can explain they are not allowed to say that it's a match. In fact, all of the experts said they would not call it a match. In fact, they could distinguish it from Nuclear DNA. So I don't want to, once we get to their testimony,
JUDGE: Don't want to split hairs or put too fine a point on it.
D. HARRIS: Correct.
GERAGOS: But I think that the Court is the one to introduce the subject, because I objected, and I don't want to look like I'm just being obstreperous.
JUDGE: I'll say that after discussion in chambers, I'll sustain Mr. Geragos' objection. I'll ask the District Attorney to clarify the issue as to this hair, and then you can do so.
DISTASO: Fine, judge.
JUDGE: Okay. And, Distaso, slow down. Try to slow down.
DISTASO: I'm trying to finish today.
JUDGE: I know you are. But I am just saying, after she told you to slow down this morning, you were about just as fast as anybody. I understand. That's an Italian trait, I think. We all talk too fast.
GERAGOS: I always thought it was with the hands.
D. HARRIS: Because he can't talk with the hands, he has to go faster.
JUDGE: Just try to keep that in mind. And you are going to take at least another one or two hours, you think? Then, Mr. Geragos, whenever we get done with him, I understand it's going to take an hour and half put up your visual aids stuff?
GERAGOS: They have to tear down theirs.
DISTASO: We have to take down,
JUDGE: You got to take down, they got to put up at 9:00 o'clock tomorrow.
GERAGOS: Do it a 9:30 so they have got time to set it up. Big on the nine.
JUDGE: I want to get the jury in a mindset starting at nine. If it's 9:30, they can't find a place to park here. I was cautioned about that. There is no place to place to park if you gets here at 9:30.
GERAGOS: They don't get to park in the lot.
JUDGE: I was told if the jury gets here after nine, comes filing in, they will have a very hard time finding a place to park. So let's go at nine. Don't want to inconvenience the jurors.
DISTASO: What time for a witnesses tomorrow? I'll have them here,
JUDGE: Your two turned into four. Mr. Geragos, can you give us,
GERAGOS: I have no idea.
JUDGE: He has no idea. So my suggestion is you don't bring that witness in in the morning. Have her available in the afternoon. And if he gets done by three, we can put her on and start the testimony.
DISTASO: Okay.
JUDGE: Okay? All right. Let's go. You want this sealed, guys?
GERAGOS: No, I don't care.
DISTASO: Do we care?
JUDGE: No reason to.