The judge in the O.J. Simpson murder case refused today to give defense experts an equal share of blood samples in the possession of the prosecution for independent testing.
Superior Court Judge Lance Ito, in a three-page written decision, said prosecutors showed it is "reasonably necessary" for them to do multiple genetic tests before giving any of the evidence to the defense."What was revealed to the court in a course of this hearing was a picture of confusion, miscommunication and noncommunication between the prosecutors and the Los Angeles Police Department," Ito wrote. "Such conduct, while less than exemplary, does not rise to the level of bad faith or misconduct."
The judge ordered the prosecution to proceed with the DNA testing "in as conservative a manner as is scientifically reasonable and to maintain for potential defense testing any residual or remaining material."
Ito said prosecutors must give the defense 48 hours notice of any testing and they must make the testing accessible to defense experts.
The judge said he was relying on established California law that says there is no violation of a defendant's due process rights if a piece of evidence is consumed by the prosecution through testing.
Before Ito's ruling, experts said his decision may someday serve as a precedent about how courts handle DNA evidence.
"I don't think the public understands what's at stake here," said forensic scientist Edward Blake. "This is a fundamental philosophical battle which involves our basic constitutional rights."
The question is whether prosecutors own evidence or "are merely custodians of the evidence for the people," Blake said.
Prosecutors have said early DNA test results show a match between Simpson's blood and blood drops found near the bodies of Simpson's ex-wife and her friend.
Simpson's attorneys contend many of the samples are too tainted to be used at trial because they have been mislabeled, mishandled and contaminated. But they want to conduct their own tests anyway.
Loyola University Law Professor Laurie Levenson predicted that the defense would claim a mixup if Simpson's blood is matched with that found at the crime scene.
"They will say, `Of course it's O.J.'s blood. It came from (his home) where he cut his hand and was mixed up with the blood from (Nicole Simpson's condominium)," she said.