Criminal Courts Building
210 West Temple Street, Room 18-402
Los Angeles, California 90012
(213) 974-3782



Case No. BA097211

DATE: 4-13-95
TIME: 4:30 PM

TO THE HONORABLE JUDGE OF THE ABOVE ENTITLED COURT, the People respectfully submit the following response to Defendant's Memorandum:

Defendant's Memorandum of Law and Request for Hearing on Prosecutorial Misconduct is another attempt to circumvent the Court's order of February 8, 1995 and to preclude the jury from learning that the Defense has consumed parts of evidence items 47, 50, and 78 in its own testing. The Court has already ruled that the trier of fact is entitled to learn this information. This response will demonstrate that, in order to rewrite history on this issue, the defense has embarked on a new mission in this case - it has launched yet another vicious personal attack on a Prosecutor in an obvious and desperate attempt to thwart the search for the truth in this case.


1. On October 27, 1994 Defense expert Larry Ragle obtained items 47/334, 50/335, and 78/336 from the Los Angeles Police Department pursuant to court order.

2. On January 5, 1995, Dr. F. Rieders of the National Medical Services was contacted by Lennard Hankhaus of the Los Angeles Police Department Scientific Investigations Division about the feasibility of testing for the presence of EDTA in bloodstains. Dr. Rieders expressed an interest in doing research into this type of testing to Mr. Hankhaus. At no time during this conversation did Dr. Rieders mention that he had been retained by the defense in this case.

3. On February 3, 1995 the Prosecution requested the return of those items or their empty packaging for the first time in a letter to Mr. Shapiro. That initial request was ignored and Prosecution letters dated Feb. 7 and Feb. 10 reiterated the request.

4. The Court's order dated February 8, 1995 permitted the Prosecution to advise the jury that the Defense consumed or altered items in testing, if the defense consumed or altered any items in testing. During subsequent in camera discussions, the Court ruled that the same provision would apply to the items provided to the defense in October 1994.

5. In February 1995 FBI-Special Agent Roger Martz advised the Prosecution that a scientist from the National Medical Services told Martz that the National Medical Services (NMS) had been asked by the defense to perform tests for the presence of EDTA but had decided not to perform those tests. The conversation between Martz and the NMS scientist occurred during the annual meeting of the American Academy of Forensic Sciences. The subject of EDTA testing had just been injected into these proceedings because it was triggered by the Defense request to ship hundreds of items of the Prosecution's evidence to Albany for examination. The Prosecution responded that they intended to perform testing for the presence/absence of EDTA on certain bloodstains. This was a topic of great interest to many scientists and was freely and openly discussed at this meeting.

Prior to this conversation, Martz and NMS scientist were acquainted with each other. At this point, the Prosecution had been unaware that NMS had had any involvement in this case, other than the preliminary discussions between Rieders and Hankhaus in early January.

6. On March 10, 1995, Defense expert Larry Ragle returned items 47/334, 50/335, and 78/336 to the Los Angeles Police Department.

7. Portions of 47/334, 50/335, and 78/336 were consumed during testing by the defense, as was noted when those items were returned by the Defense.

8. Upon their return, those items all bore names, initials, and dates which were not on them when they were provided to the defense. The new dates were all subsequent to October 27, the date which the defense obtained these items. (It is common practice for responsible, ethical criminalists to date and initial items when they are opened and examined, regardless of whom they are employed by. For example, all of the other items which have been examined by defense experts in their numerous examinations of Prosecution evidence have been initialed by defense experts when packages or containers were opened. This forensic science practice ensures the integrity of the evidence by allowing either side to reconstruct the chain of custody of the evidence.) (note 1) Photographs of items 47, 50, and 78 are included with this response.

9. Among the notations on the packaging for these items are ``National Medical Services'', ``C.W.S.'' and ``K.D. Ballard.''

10. Mr. Harmon called Dr. Rieders to discuss the subject Rieders had earlier discussed with Hankhaus, the possibility of testing bloodstains for the presence/absence of EDTA. Mr. Harmon advised Dr. Rieders that the Prosecution had conducted its own EDTA tests and discussed the construct of those tests. Dr. Rieders was invited to review the Prosecution's tests with Roger Martz, the FBI scientist with whom Dr. Rieders was already acquainted. In an unsolicited comment, Dr. Rieders advised Harmon that Rieder's lab had elected not to perform the tests for EDTA on evidence related to this case. Mr. Harmon advised Dr. Rieders that he was already aware of that fact through the NMS scientist's comment to Martz at the American Academy meeting.

11. A literature search revealed that a Kevin D. Ballard at Baylor had published in the area of mass spectroscopy, the most likely method of testing for EDTA. Mr. Harmon called that Dr. Ballard and left a message on his voice mail. Harmon identified himself and the reason he was calling. Mr. Harmon also asked for a copy of his CV and advised Ballard that he would be happy to have Ballard review the tests for EDTA which Roger Martz had conducted. Dr. Ballard did not return the phone call. Mr. Harmon called again and left his name with the person who answered the phone. No response was ever received to either of the two calls.

12. Mr. Harmon called Dr. Rieders again and asked him if he knew a Dr. Kevin Ballard at Baylor. Dr. Rieders said that he was familiar with Dr. Ballard and that Dr. Ballard's lab had the capability to do testing for the presence/absence of EDTA in bloodstains.

13. Soon thereafter the proposed stipulations were filed.


Defendant raises two legal issues in an attempt to continue its escalating personal attacks on Prosecution members in this case. The first issue is whether or not the Prosecution is entitled to discover the results of defense testing when the defense does not intend to present those test results. The line of cases cited by defendant indeed supports the proposition that the defense is not required to provide such test results in discovery when there is not intention to present those results in the trial.

However, these cases have no application to the situation before the Court because nothing has been sought or provided in discovery. The Court ordered the defense to return whatever remained of items 47, 50, and 78 to the Prosecution. This was not a discovery request. This was the Prosecution's evidence to begin with. The Prosecution was entitled to have whatever remained in order to establish the chain of custody of these items. If further testing of these items was desired or feasible, the Prosecution was entitled to pursue that avenue as well. When those items were examined, it was easy to determine where the samples had been. In fact, it had already been made known to the Prosecution in February that NMS did not perform any tests on these samples. Because there are the names of only two labs listed on those items, if the first lab did not perform any tests, then the second lab must have.

Defendant's Memorandum suggests that they may have sent these items to other labs and not documented those movements. If this is the case, then it is even clearer than before that they shopped those items around. If the defense did so without maintaining the chain of custody of these items, the Prosecution may eventually seek sanctions against the defense for compromising the evidence by failing to maintain the chain of custody of this important evidence.

The second legal issue raised by the defense concerns an allegation that the Prosecution has obtained privileged information in the form of some confidential communication. The Prosecution is not privy to any communications between the defendant and his counsel. The Prosecution already knew that National Medical Services did not perform any tests on these items before they were returned on March 10, 1995, and before any phone conversation between Mr. Harmon and Dr. Rieders. The Prosecution is presently unaware what the results of any of the tests performed by the defense are, although the fact that neither of these witnesses have been added to the defense witness list strongly suggest what those results are.

When the items were returned to LAPD, pursuant to the Court's order, it was abundantly clear where those items had been. This information is not privileged, it was obtained lawfully pursuant to the Court's order.

The defense does not deny the truth of any of the information contained in either of the Proposed Stipulations. In light of Mr. Scheck's extensive cross-examination of Dennis Fung, it is understandable that they seek to suppress the fact that they performed any tests on evidence in this case, when in fact they have. Instead, they have launched yet another vicious personal attack against a Prosecution member and seek this Court's assistance in thwarting the search for the truth in this case by deterring individual prosecutors. (note 2) Nothing improper has been done.

The People respectfully request the Court to put an end to these vicious, baseless attacks which are now occurring at an increasingly alarming rate by denying the request for any further proceedings on this issue.

DATED: April 11, 1995

Respectfully submitted,
Deputy District Attorney
Alameda County


1. Defendant's memorandum suggests that it may be appropriate for a forensic scientist to deviate from this practice. Not only would failure to properly document an examination deviate from the norm of standard scientific practice, it would also compromise the integrity of the evidence by breaking the chain of custody of the evidence.

2. It is to be expected for some members of the defense team to launch into bitter personal attacks against all associated with the Prosecution. The very same tactics were used by Messrs. Scheck and Neufeld in United States v. Yee when they failed to keep critical DNA evidence from being admitted in one of the early landmark cases. After all defendants were convicted and sentenced to lengthy prison terms, they filed a motion for a new trial in which they resorted to many of the same vicious tactics which have begun in this case. For some bizarre reason they even included Mr. Harmon in their motion although he had not been actively involved in that case.