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Subject: TRANSCRIPT - 5/22/95 - 301k
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LOS ANGELES, CALIFORNIA; MONDAY, MAY 22, 1995
9:00 A.M.
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: GOOD MORNING, COUNSEL.
BACK ON THE RECORD IN THE SIMPSON MATTER. MR.
SIMPSON IS AGAIN PRESENT BEFORE THE COURT WITH HIS COUNSEL, MR.
SHAPIRO, MR. COCHRAN, MR. BLASIER, MR. SCHECK, PEOPLE REPRESENTED
BY MR. DARDEN AND MR. HARMON. THE JURY IS NOT PRESENT.
COUNSEL, ANYTHING WE NEED TO TAKE UP BEFORE WE INVITE
THE JURORS TO CONTINUE AND CONCLUDE THE CROSS-EXAMINATION OF MR.
SIMS?
MR. HARMON: JUST I WONDERED IF THERE HAD BEEN ANY
IN-CAMERA REVIEW BASED ON THE INQUIRY I MADE YESTERDAY ABOUT THE
STAINS ON THE BACK GATE, YOUR HONOR.
THE COURT: ALL RIGHT.
THAT MATTER WAS DELEGATED TO MR. DOUGLAS AND MR.
DOUGLAS IS JUST ARRIVING. WE'LL TAKE THAT UP AT THE APPROPRIATE
TIME.
MR. HARMON: COULD WE HAVE JUST A MOMENT? THERE'S A
SCHEDULING PROBLEM THAT I WANTED TO ALERT YOU TO. IT DOESN'T
HAVE TO BE ON THE RECORD, BUT I HAVE TO TELL YOU ABOUT IT TODAY,
YOUR HONOR.
THE COURT: COME ON DOWN.
(A CONFERENCE WAS HELD AT THE
BENCH, NOT REPORTED.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: ALL RIGHT.
THANK YOU, COUNSEL.
ANYTHING ELSE WE NEED TO PUT ON THE RECORD BEFORE WE
INVITE THE JURORS TO JOIN US?
AND, MR. SCHECK, DO YOU KNOW WHAT YOU'RE GOING TO
NEED IN THE WAY OF EXHIBITS, BECAUSE WE'VE GOT SORT OF A ZOO OVER
HERE RIGHT NOW.
MR. SCHECK: YES. I THINK I HAVE IT FAIRLY WELL PLANNED.
I'M GOING TO START WITH THAT CHART.
THE COURT: I'M A LITTLE CONCERNED BECAUSE THE SMALLER
EASEL IS SORT OF LEANED UP HERE. JUST A MATTER OF LOGISTICS
HERE.
ALL RIGHT.
DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
MR. SCHECK: YOUR HONOR, DID WE GIVE THE CHART A NUMBER?
THE CLERK: NO.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: THANK YOU, LADIES AND GENTLEMEN. PLEASE BE
SEATED.
ALL RIGHT.
LET THE RECORD REFLECT WE'VE NOW BEEN REJOINED BY ALL
THE MEMBERS OF OUR JURY PANEL.
GOOD MORNING, LADIES AND GENTLEMEN.
THE JURY: GOOD MORNING.
THE COURT: DID WE ENJOY OUR ACTIVITIES OVER THE WEEKEND?
THE JURY: YES. IT WAS GREAT.
THE COURT: OKAY.
THAT WAS SOMETHING I WANTED TO DO MYSELF. THAT'S HOW
YOU GOT THAT.
ALL RIGHT.
MR. SIMS, WOULD YOU RESUME THE WITNESS STAND, PLEASE.
GARY SIMS,
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 AGAIN, MR. SIMS.
THE WITNESS: GOOD MORNING, YOUR HONOR.
THE COURT: MR. SIMS, YOU'RE REMINDED, SIR, YOU ARE STILL
UNDER OATH.
AND, MR. SCHECK, YOU MAY CONTINUE WITH YOUR
CROSS-EXAMINATION.
MR. SCHECK: THANK YOU, YOUR HONOR.
GOOD MORNING, LADIES AND GENTLEMEN OF THE JURY.
THE JURY: GOOD MORNING.
CROSS-EXAMINATION (RESUMED)
BY MR. SCHECK:
Q GOOD MORNING, MR. SIMS. HOW ARE YOU, SIR?
A GOOD MORNING. FINE, THANK YOU.
MR. SCHECK: YOUR HONOR, I WOULD LIKE TO START BY MARKING A
CHART THAT I THINK HAS A LABEL OVER THE TOP "DEFENSE
HYPOTHETICAL" AS DEFENDANT'S NEXT IN ORDER, AND I WOULD LIKE --
THE COURT: 1165.
MR. SCHECK: 1165. AND ASK MR. HARRIS TO PROJECT THAT.
(DEFT'S 1165 FOR ID = CHART)
MR. SCHECK: AND I'LL APPROACH THE WITNESS.
Q BY MR. SCHECK: NOW, MR. SIMS, YOU RECALL ON THURSDAY
AFTERNOON, WE REVIEWED -- BASED ON A HYPOTHETICAL THAT I GAVE YOU
CONCERNING AN ASSUMPTION OF RANDOM DISTRIBUTION OF BIOLOGICAL
MATERIAL OVER THE SWATCHES, YOU MADE A SERIES OF ESTIMATIONS OR
APPROXIMATIONS OF THE AMOUNT OF HUMAN DNA IN VARIOUS ITEMS OF
EVIDENCE.
DO YOU RECALL THAT?
A YES. AND I RECALL TOO THE ASSUMPTION AS TO HOW MUCH
OF THE TOTAL SWATCH I WAS GETTING WAS PART OF THIS CALCULATION.
Q THAT'S CORRECT.
A BECAUSE THAT'S PART OF YOUR ASSUMPTION, BUT THAT
WASN'T IN MY ORIGINAL NOTES.
Q I UNDERSTAND.
A OKAY.
Q THERE WAS SOME -- WE MADE SOME ASSUMPTIONS ABOUT
AMOUNT -- NUMBERS OF SWATCHES AND WEIGHTS OF THOSE SWATCHES THAT
WERE NOT IN YOUR POSSESSION, BUT WERE IN THE POSSESSION OF
CELLMARK.
A OKAY.
Q ALL RIGHT.
BUT BASED ON THOSE FIGURES, YOU MADE THESE
ESTIMATIONS, CORRECT, AS REFLECTED IN DEFENDANT'S --
THE COURT: 1165.
Q BY MR. SCHECK: -- 1165?
A WELL, THESE -- THESE NUMBERS DO LOOK SIMILAR TO WHAT
I SAID, ALTHOUGH I DON'T RECALL THE SPECIFIC --
Q RIGHT.
A -- NUMBERS.
Q RIGHT.
WELL, YOU RECALL THAT WE -- I THINK ON FRIDAY, I
HANDED YOU A COPY OF THIS CHART, AND AT THAT TIME, YOU CHECKED IT
AGAINST YOUR NUMBERS?
A IT LOOKS REASONABLE TO ME.
Q OKAY.
AND JUST TO REVIEW THEN, THAT IN TERMS OF ON THE
LEFT-HAND COLUMN, THAT REFLECTS NANOGRAMS OF HUMAN DNA?
A ON THE -- NOW, THIS IS -- THIS IS NOW ON THE
LEFT-HAND SIDE OF THE --
Q YEAH.
A YES. THAT WAS --
Q NANOGRAMS.
A NOW, ON 117, IT'S IMPORTANT TO NOTE THAT I DID NOT
RUN A SPECIFIC HUMAN TEST ON THAT, THAT MY QUANTITATION WAS ONLY
BASED ON THE YIELD GEL ON 117.
Q BUT IN TERMS OF YOUR YIELD GEL, YOUR YIELD GEL SHOWED
LITTLE BACTERIAL DNA, IT LOOKED TO YOU HUMAN?
A THAT'S CORRECT.
Q OKAY.
NOW, JUST SO WE'RE CLEAR ON THIS, 47, 48, 49, 50 AND
52 ARE THE ITEMS THAT WERE RECOVERED ON JUNE 13TH FROM THE BUNDY
WALKWAY?
A YES.
Q AND 117 IS THE MATERIAL THAT WAS FOUND ON THE REAR
GATE ON JULY 3RD?
A YES.
Q AND NOW, IN THIS FBI REPORT ABOUT ENVIRONMENTAL
EFFECTS OF DNA, DO YOU RECALL THAT THEY REACHED A CONCLUSION WITH
RESPECT TO EXPOSURE TO SUNLIGHT, EVENTUALLY CAUSES DEGRADATION OF
DNA AND STAINS TO THE POINT THAT NO TYPING RESULTS CAN BE
OBTAINED?
A WHICH -- NOW, IS THAT -- WHICH PARTICULAR FBI STUDY
IS THAT? IS THAT IN THE JOURNAL OF FORENSIC SCIENCES OR --
Q YES. I'M REFERRING NOW TO -- I DON'T KNOW IF IT WAS
EVER GIVEN AN ITEM NUMBER IN EVIDENCE, BUT CALL YOUR ATTENTION TO
PAGE 1646.
THE COURT: MRS. ROBERTSON DOESN'T RECOLLECT THAT STUDY.
MR. SCHECK: YES. THIS IS AN ARTICLE ENTITLED --
THE WITNESS: YES. THIS IS THE COMEY ARTICLE, NOVEMBER
'91, JOURNAL OF FORENSIC SCIENCES.
THE COURT: HOW DO YOU SPELL THE NAME?
THE WITNESS: C-O-M-E-Y.
THE COURT: THANK YOU.
Q BY MR. SCHECK: AND DOES THAT REFRESH YOUR
RECOLLECTION AS TO THE CONCLUSION THEY REACHED WITH RESPECT TO
THE EXPOSURE TO SUNLIGHT, WHAT THAT CAN DO IN TERMS OF
DEGRADATION?
A I'D LIKE ONE MOMENT JUST TO REVIEW IT.
Q TAKE YOUR TIME.
THE COURT: WE'RE TALKING ABOUT SUNLIGHT OR ULTRAVIOLET?
MR. SCHECK: SUNLIGHT.
(BRIEF PAUSE.)
THE WITNESS: OKAY.
Q BY MR. SCHECK: AND I THINK YOU PREVIOUSLY TESTIFIED
ON DIRECT EXAMINATION THAT EXPOSURE TO SOIL AND DIRT CAN LEAD TO
BACTERIAL DEGRADATION OF DNA IN A BLOODSTAIN.
A YES.
Q NOW, FINALLY, WITH RESPECT TO THIS CHART -- LET'S GO
BACK TO THE SOCK FOR A SECOND.
A OKAY.
Q AND YOU RECALL THE -- THERE WAS A CUT-OUT OF ABOUT
THREE-QUARTERS OF AN INCH TO A HALF-INCH HIGH IN THE ANKLE OF ONE
OF THOSE SOCKS?
A YES.
Q AND AS YOU INDICATED BEFORE, THERE WAS EVEN SOME WHAT
APPEARED TO BE REDDISH STAINING OR BLOOD THAT WAS STILL IN THE --
STILL ON THE SOCK IN THE AREA WHERE THE CUT-OUT HAD BEEN MADE?
A YES. AROUND THE EDGES, THERE WAS SOME -- STILL A
LITTLE BIT OF STAINING THERE.
Q AND WHEN YOU RECEIVED THE SOCK FROM THE LOS ANGELES
POLICE DEPARTMENT, YOU FOUND SWATCHES INSIDE A TUBE THAT HAD BEEN
CUT BY GREG MATHESON?
A YES.
Q AND YOU USED HOW MANY OF THOSE SWATCHES?
A I USED THREE OF THE FOUR.
Q THREE OF THE FOUR.
AND ON JUST THREE OF THOSE SWATCHES, WHEN YOU DID A
SLOT BLOT ANALYSIS, YOU CAME UP WITH 1,350 NANOGRAMS OF HUMAN
DNA?
A WELL, NOW THAT WAS NOT A SLOT BLOT. THAT WAS A YIELD
GEL.
Q YIELD GEL?
A YIELD GEL ANALYSIS.
Q BUT THERE WAS NO EVIDENCE IN YOUR YIELD GEL ANALYSIS
OF BACTERIAL DEGRADATION IN THAT SOCK?
A NO, I DON'T RECALL SEEING ANY.
Q AND SO IF ONE WERE TO -- SO THAT'S JUST THREE OF THE
FOUR STAINS WHERE YOU GOT THAT 1,350 NANOGRAM ESTIMATE FROM THE
YIELD GEL?
A YES.
Q NOW, IF WE WERE TO PLOT WHAT 1,350 NANOGRAMS LOOKED
LIKE IN TERMS OF THIS CHART, YOU WOULD HAVE, WOULDN'T YOU AGREE,
ONE OF THESE RED BARS THAT WOULD GO LIKE RIGHT THROUGH THE TOP OF
THE SCREEN?
A YES, IT WOULD.
Q AND IT WOULD BE FAIR TO SAY THAT THE AMOUNT OF DNA IN
THAT CUT-OUT SECTION OF THE SOCK WAS A COMPARATIVELY CONCENTRATED
SAMPLE I THINK WERE YOUR WORDS LAST WEEK?
A YES.
Q OKAY.
NOW, YOU DID NOT RECEIVE THE SOCKS FOR TESTING AT
YOUR LABORATORY UNTIL SEPTEMBER 26TH --
A THAT'S --
Q -- 1994?
A I BELIEVE THAT'S THE CORRECT DATE.
Q AND -- AND SO ON SEPTEMBER 21ST, 1994, YOU HAD NO DNA
RESULTS CONSISTENT WITH THE DNA TYPINGS OF NICOLE BROWN SIMPSON
>FROM THAT SOCK?
A THAT'S CORRECT.
Q SO TO THE BEST OF YOUR KNOWLEDGE, THERE WOULD BE
ABSOLUTELY NO FACTUAL BASIS FOR ANYONE SAYING ON SEPTEMBER 21ST,
1994 THAT DNA TESTS HAD BEEN PERFORMED ON THE SOCKS AND RESULTS
HAD BEEN OBTAINED?
MR. HARMON: OBJECTION. HEARSAY, ARGUMENTATIVE, NO
FOUNDATION.
THE COURT: SUSTAINED. SUSTAINED.
Q BY MR. SCHECK: TO YOUR KNOWLEDGE, HAS ANYONE IN YOUR
LABORATORY, INCLUDING YOURSELF, EVER COMMUNICATED DNA TEST
RESULTS TO MEMBERS OF THE PRESS PRIOR TO COMMUNICATING THEM TO
THE PROSECUTION OR THE COURT?
MR. HARMON: OBJECTION. IT'S IRRELEVANT, CALLS FOR
HEARSAY, NO FOUNDATION.
THE COURT: OVERRULED.
YOU CAN ANSWER THAT QUESTION YES OR NO.
THE WITNESS: NO.
Q BY MR. SCHECK: AND OBVIOUSLY, AS FAR AS YOU KNOW, NO
ONE FROM YOUR LABORATORY, INCLUDING YOURSELF, EVER SAID ON
SEPTEMBER 21ST BEFORE YOU --
THE COURT: SUSTAINED. SUSTAINED.
Q BY MR. SCHECK: ALL RIGHT.
I THINK WE'RE FINISHED WITH THAT CHART.
JUST A FEW REAL QUICK QUESTIONS ON PRECAUTIONS
AGAINST CONTAMINATION IN THE LABORATORY.
COULD YOU TELL THE JURY WHAT A LAMINAR FLOW HOOD IS?
A YES.
A LAMINAR FLOW HOOD IS ONE THAT IS DESIGNED SUCH THAT
WHEN YOU'RE WORKING INSIDE OF IT, NOTHING GETS INTO IT AND
NOTHING GETS OUT OF IT BECAUSE IT BASICALLY CREATES A CURTAIN OF
AIR THAT IS LIKE A BARRIER TO KEEP THINGS FROM EITHER GETTING IN
OR GETTING OUT OF THAT HOOD.
Q COULD YOU DESCRIBE THE AIR FLOW IN THAT HOOD, HOW IT
WORKS?
A YES. IT'S SORT OF A CIRCULAR FLOW PROCESS SO THAT --
IT'S SORT OF HARD TO EXPLAIN. I'LL TRY TO DO THIS.
BUT YOU -- I THINK IF YOU ALL KNOW WHAT A HOOD IS,
YOU'RE INSIDE -- IT'S AN ENCLOSED AREA INSIDE LIKE A LITTLE CASE
THAT YOU'RE WORKING IN, AND THE AIR FLOW IS SUCH THAT IT IS
SUCKED DOWN TO FORM THIS CURTAIN AND THEN IT GOES BACK THROUGH
THE BACK, THEN IT GOES THROUGH A FILTER SYSTEM AND IT COMES BACK
DOWN AROUND.
SO YOU'VE ALWAYS GOT THIS BARRIER OF AIR THAT KEEPS
THINGS FROM GETTING IN AND GETTING OUT. AND WHEN I SAY THINGS,
I'M TALKING ABOUT DUST AND AEROSOLS AND THAT SORT OF THING.
Q AND YOU LITERALLY WOULD STICK YOUR HAND THROUGH THESE
-- THERE'S LIKE HOLES THAT YOU STICK YOUR HAND IN?
A WELL, IT'S AN OPENING. IT ACTUALLY IS AN OPENING.
SO YOU ARE PUTTING YOUR HANDS THROUGH THAT OPENING.
Q YOU'RE PUTTING YOUR HANDS IN THAT ARE GLOVED?
A YES.
Q AND THAT'S WHERE YOU WILL DO YOUR WORK FOR THE
EXTRACTIONS?
A THAT'S -- NOW, THAT IS WHERE WE ALWAYS DO OUR PCR
SET-UPS.
Q UH-HUH.
A THAT'S WHERE WE DO THE SET-UPS FOR THE PCR
AMPLIFICATION.
Q AND THE HOOD THAT YOU USE, IS THE AIR FLOW SUCH THAT
YOU SUCK AIR FROM INSIDE THE LABORATORY INTO THE HOOD AND THEN
OUT?
A NO. IT'S CONTINUOUSLY RECIRCULATING THE AIR AS I
UNDERSTAND IT.
Q UH-HUH.
AND IS THERE SOMETHING CALLED A FUME HOOD?
A YES, THERE IS.
Q AND A FUME HOOD IS A HOOD WHERE YOU SUCK AIR FROM
INSIDE OF THE LABORATORY INTO THE THING AND THEN OUT?
A YES. AND THAT'S USED WHEN WE'RE DOING, FOR EXAMPLE,
THE PHENOL CHLOROFORM EXTRACTIONS BECAUSE YOU DON'T WANT TO
BREATHE THIS PHENOL. IT'S NOT A GOOD -- OR CHLOROFORM FOR THAT
MATTER. THOSE ARE CHEMICALS YOU DON'T WANT TO BREATHE, AND SO
YOU WORK IN A FUME HOOD TO REMOVE THOSE FUMES AWAY FROM YOURSELF.
Q UH-HUH.
BUT THERE'S A DIFFERENCE BETWEEN A FUME HOOD AND A
LAMINAR FLOW HOOD?
A YES.
Q AND A LAMINAR FLOW HOOD IS THE ONE THAT'S DESIGNED --
SPECIFICALLY DESIGNED TO PREVENT AEROSOLS AND PARTICULANTS FROM
INSIDE THE LABORATORY FROM GETTING INSIDE THAT HOOD?
A OR FROM THINGS IN THERE GETTING OUT. BOTH WAYS.
Q OKAY.
THE COURT: YOU WANT TO SPELL LAMINAR FOR THE COURT
REPORTER?
MR. SCHECK: YES.
Q BY MR. SCHECK: L-A-M-I-N-A-R, CORRECT?
A YES, THAT'S CORRECT.
Q THANK YOU.
NOW, WE HAD A DISCUSSION ABOUT PCR CARRY-OVER
CONTAMINATION ON I THINK IT WAS FRIDAY MORNING.
A YES.
Q AND WE TALKED ABOUT THOSE BILLIONS OF FRAGMENTS?
A YES.
Q AND JUST TO BE CLEAR ABOUT IT, I WAS ASKING YOU ABOUT
THE VISIBILITY OF THOSE FRAGMENTS.
DO YOU RECALL THAT?
A YES.
Q AND YOU SAID THAT THEY WERE INVISIBLE?
A YES.
Q ALL RIGHT.
AND JUST SO THAT WE'RE VERY CLEAR, THEY'RE IN A
LIQUID; IS THAT CORRECT?
A WELL -- YES, THEY WOULD BE IN A LIQUID. AND SO THE
ONLY THING YOU COULD SEE WOULD BE IF YOU GOT A DROPLET OR
SOMETHING LIKE THAT ON A GLOVE, YOU COULD SEE THEM AS PART OF
THAT DROP, BUT YOU DON'T REALLY SEE THEM, THE PARTICLES. THEY'RE
TOO SMALL.
Q AND THE SMALLEST AMOUNT OF THAT COULD CONTAIN
THOUSANDS OF AMPLICONS AS THEY'RE CALLED?
A YES.
Q NOW, WE TALKED A LITTLE BIT ABOUT CHECKS -- METHODS
THAT ONE WOULD PURSUE IN TRYING TO DETERMINE WHETHER YOU HAD
CONTAMINATION IN YOUR LABORATORY.
DO YOU RECALL THAT?
A YES.
Q NOW, IF YOU HAD IN YOUR LABORATORY CONTAMINATION SUCH
THAT YOU COULD SEE ON YOUR DQ-ALPHA STRIPS -- AND WE'LL REVIEW
THOSE STRIPS IN A MINUTE, BUT THEY HAVE ALL THESE DOTS ON THEM,
RIGHT?
A YES.
Q AND IF YOU SAW THAT SOME OF THE DOTS WERE LIGHTING UP
WITH PRETTY SIGNIFICANT INTENSITY THAT YOU KNEW SHOULDN'T BE
LIGHTING UP IN YOUR QUALITY ASSURANCE STANDARDS OR QUALITY
CONTROL STANDARDS OR YOUR POSITIVE CONTROLS, THAT WOULD BE A
STRONG INDICATION THAT THERE WAS CONTAMINATION IN YOUR
LABORATORY?
A IF -- IF THERE WERE NO OTHER REASON FOR THAT. FOR
EXAMPLE, I'VE SEEN REFERENCE BLOOD SAMPLES WHERE SOMEBODY'S BEEN
TRANSFUSED, WHICH CREATES A MIXTURE SITUATION. THAT'S -- THAT
WOULD BE ONE EXAMPLE.
ALSO, AS I POINTED OUT EARLIER, SOMETIMES WITH THIS
DQ-ALPHA SYSTEM, YOU WILL SEE SOME VERY WEAK DOTS BECAUSE OF
WHAT'S CALLED CROSS-HYBRIDIZATION PHENOMENON.
SO THOSE THINGS, YOU HAVE TO ALWAYS TAKE INTO
ACCOUNT. BUT THERE ARE CERTAIN THINGS YOU LOOK FOR. FOR
EXAMPLE, IN YOUR EXTRACTION REAGENT BLANK, YOUR NEGATIVE
CONTROLS, IF YOU SEE ANY DOTS IN THOSE, THEN THAT WOULD SIGNAL
THAT YOU HAVE SOME FORM OF CONTAMINATION. THAT'S -- THAT'S THE
BEST THING TO LOOK AT.
Q BEFORE WE GO INTO SOME OF THOSE THINGS YOU MENTIONED,
I'M JUST ASKING YOU ABOUT A PRETTY SIMPLE SITUATION WHERE YOU SEE
ON THE NEGATIVE CONTROL, THE POSITIVE CONTROL AND YOUR QUALITY
CONTROL SAMPLES DOTS OF NOT FAINT, BUT REASONABLY STRONG
INTENSITY OR LIGHTING UP IN A SERIES OF CASES.
A YES.
Q GOT THAT IN MIND?
A YES.
Q ALL RIGHT.
AND THAT WOULD BE A -- CERTAINLY AN INDICATION THAT
THERE MAY WELL BE CONTAMINATION IN YOUR LABORATORY?
A YES. THAT WOULD TELL YOU THAT YOU MAY HAVE A
CONTAMINATION PROBLEM.
Q AND LET US FURTHER ASSUME -- NOW, WOULD ONE PROCEDURE
ONE WOULD FOLLOW TO TRY TO GET TO THE SOURCE OF THAT
CONTAMINATION, TO LOOK AT THE LOTS FROM WHICH THE REAGENTS OR
CHEMICALS CAME FROM?
A YES.
Q WHAT -- COULD YOU TELL THE JURY AGAIN WHAT A LOT IS?
A A LOT IS -- EXCUSE ME.
THE WAY WE SET UP OUR LABORATORY IS, WE WORK WITH
THESE LOTS OF THESE KITS THAT ARE PROVIDED BY A COMMERCIAL
PROVIDER. AND SO WE DIVIDE EACH SHIPMENT OF THOSE KITS INTO A
LOT, AND THE LOT -- EACH KIT INCLUDES REAGENTS SUCH AS THE -- THE
-- WITH THE COCKTAIL. I GUESS DR. COTTON HAS TALKED ABOUT THIS,
SO I WON'T GO INTO IT IN DETAIL.
BUT THEY HAVE THE VARIOUS REAGENTS THAT ARE USED AS
PART OF THIS KIT. WE ALSO HAVE LOT NUMBERS FOR THE REAGENTS THAT
ARE USED TO EXTRACT DNA IN OUR LABORATORY. SO THAT WOULD BE A
LOT OF REAGENTS THAT WE WOULD CHECK OUT ALSO.
Q LET'S JUST FOCUS FOR A SECOND ON THE LOTS OF REAGENTS
THAT COME IN THOSE KITS.
A OKAY.
Q AND THOSE KITS ARE PROVIDED BY A COMPANY THAT'S NOW
KNOWN AS ROCHE BIOMEDICAL?
A YES. ROCHE MOLECULAR SYSTEMS AND THEN IT'S MARKETED
BY PERKIN-ELMER.
Q UH-HUH.
AND LET US ASSUME IN THIS HYPOTHETICAL I GAVE YOU
ABOUT SEARCHING FOR THE SOURCE OF CONTAMINATION THAT ONE DEVELOPS
A HYPOTHESIS THAT MAYBE THE SOURCE OF CONTAMINATION ARE THOSE
KITS, THE LOTS FROM THOSE KITS.
ARE YOU WITH ME?
A YES.
Q ALL RIGHT.
AND YOU GO BACK TO THE MANUFACTURER AND YOU DETERMINE
THAT THERE ARE NO REPORTS OF ANY CONTAMINATION BEING DISCOVERED
IN THOSE KITS.
A OKAY.
IN OTHER WORDS, THE OTHER USERS AROUND THE COMPANY
ARE SAYING, "WE DIDN'T SEE THAT IN THAT LOT NUMBER"?
Q YES. AND THERE'S A PERSON NAMED DR. REBECCA REYNOLDS
OR REBECCA REYNOLDS? I DON'T KNOW IF SHE'S A DOCTOR.
A YES, I KNOW -- SHE IS A DOCTOR.
Q DR. REBECCA REYNOLDS.
AND SHE WOULD BE ACTUALLY THE PERSON YOU WOULD CALL
TO CHECK OUT WHETHER OR NOT A LOT WAS CONTAMINATED FROM ROCHE OR
PERKIN-ELMER?
A SHE'S -- SHE'S ONE OF THE PEOPLE THAT YOU MIGHT TALK
TO, YES. THERE ARE OTHER PEOPLE THERE TOO THAT WE WOULD GO
THROUGH.
Q AND IF IN THIS SITUATION YOU LEARNED FROM REBECCA
REYNOLDS OR SOME OTHER PERSON THAT THERE WAS NOTHING WRONG WITH
THESE LOTS --
MR. HARMON: OBJECTION. IRRELEVANT.
THE COURT: SUSTAINED. DIRECTLY WITH THIS LABORATORY'S
USAGE.
MR. SCHECK: I'M SORRY?
THE COURT: IT'S NOT RELEVANT UNLESS IT'S DIRECTED TOWARDS
THIS LABORATORY'S USAGE.
MR. SCHECK: YES.
Q BY MR. SCHECK: ALL RIGHT.
IN TERMS OF YOUR USAGE, IF YOU DETERMINED IN A SEARCH
FOR CONTAMINATION FROM ROCHE THAT THERE WAS NOTHING WRONG WITH
THE KITS OR LOTS, WOULD THAT THEN LEAD YOU TO SEARCH FURTHER FOR
THE SOURCE OF CONTAMINATION?
MR. HARMON: OBJECTION. IT'S IRRELEVANT, IMPROPER
HYPOTHETICAL, NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: YES.
THE COURT: YOU WANT TO SPELL ROCHE AND PERKIN ELMER FOR
THE COURT REPORTER?
MR. SCHECK: ROCHE, R-O-C-H-E, AND PERKIN ELMER -- NOW,
THIS MAY BE HARD FOR ME -- P-E-R-K-I-N DASH E-L-M-E-R.
Q BY MR. SCHECK: LET'S DISCUSS FOR A FEW MINUTES
PROFICIENCY TESTING.
A OKAY.
Q DID YOU SEE DR. COTTON'S TESTIMONY WITH RESPECT TO
THE DIFFERENT KINDS OF PROFICIENCY TESTING?
A I THINK I DO REMEMBER A CHART ABOUT BLIND. I THINK
IT WAS ONE THAT MR. NEUFELD PREPARED.
Q YES.
A I REMEMBER HIM WRITING. I HAVE AN IMAGE OF THAT,
YES.
MR. SCHECK: OKAY.
JUST FOR BENEFIT -- I THINK THIS IS MR. NEUFELD'S
WRITING, AND IT WOULD BE 1153.
OKAY.
CAN YOU SEE THAT IN THE BACK? I GUESS NOT.
LET ME JUST TAKE A SECOND. I'LL MOVE THIS OVER HERE.
THE COURT: BETTER.
MR. SCHECK: BETTER?
THE COURT: BETTER.
Q BY MR. SCHECK: NOW, WOULD YOU AGREE WITH --
THE COURT: BUT YOU'RE ALSO STANDING BETWEEN IT AND 165.
MR. SCHECK: RIGHT.
AND THAT'S ACTUALLY NOT GOING TO BE VISIBLE TO THEM
AS I SEE IT. IF I DO THAT, IS THAT -- AND CAN YOU --
JUROR NO. 7: YES.
THE COURT: ALL RIGHT.
MR. SCHECK, IF YOU WOULD, LET ME ADDRESS THE JURORS
DIRECTLY.
MR. SCHECK: I'M SORRY.
THE COURT: THANK YOU.
Q BY MR. SCHECK: NOW --
THIS EVEN HAS MR. NEUFELD'S BAD SPELLING AS I RECALL
IT.
NOW, WOULD YOU AGREE THAT IN TERMS OF THE GENERIC
TYPES OF PROFICIENCY TESTS, THAT ONE TYPE IS WHAT'S KNOWN AS AN
OPEN TEST?
A YES.
Q AND THAT'S WHERE THE EXAMINERS KNOW THEY'RE BEING
TESTED?
A YES.
Q AND THEN THERE ARE BLIND TESTS WHERE THE EXAMINERS
DON'T KNOW THAT IT'S A TEST?
A YES. THAT'S -- THAT'S MY GENERAL UNDERSTANDING AND I
THINK IN THE TWGDAM GUIDELINES, THAT'S WHAT'S MENTIONED AS OPEN
VERSUS BLIND.
Q ALL RIGHT.
AND THEN THERE ARE EXTERNAL TESTS WHERE THE SAMPLES
ARE PROVIDED TO THE LABORATORY BY INDIVIDUALS WHO ARE INDEPENDENT
OF THE LABORATORY AND DON'T NECESSARILY KNOW THE STRENGTHS AND
WEAKNESSES OF THE LAB?
A YES.
Q AND THEN THERE ARE INTERNAL TESTS WHICH ARE PROVIDED
BY THE LABORATORY TO TEST ITSELF?
A YES.
Q AND THEN OF COURSE -- SO THERE WOULD BE OPEN
EXTERNALS, OPEN INTERNALS, THEN BLIND EXTERNALS AND BLIND
INTERNALS?
A YES.
Q OKAY.
SO WE'RE CLEAR ON THAT TERMINOLOGY?
A YES.
Q NOW, WITH RESPECT TO THE PROFICIENCY TESTS --
WITHDRAWN.
WOULD YOU AGREE THAT AS MUCH AS POSSIBLE, ONE WOULD
WANT PROFICIENCY TESTS TO DUPLICATE OR REPLICATE CASEWORK, TO BE
LIKE CASEWORK?
A YES. I THINK AS A CONCEPT, I WOULD AGREE WITH THAT.
Q AND THAT IN TERMS OF ALL THOSE KINDS OF TESTS, THE
FORM OF TESTING THAT WOULD BE MOST LIKE CASEWORK WOULD BE AN
EXTERNAL BLIND TEST?
A WELL, I SUPPOSE IF ONE MAKES A DISTINCTION BETWEEN
WHETHER OR NOT ONE KNOWS ONE IS BEING TESTED -- IS THAT -- IS
THAT --
Q YES.
A THAT -- THAT'S PROBABLY TRUE, YES.
Q AND WOULD YOU AGREE THAT PROFICIENCY TESTS PROVIDES
ONE WAY TO MEASURE THE ERROR RATE OF THE DNA LABORATORY?
A YES.
Q AND WOULD YOU AGREE THAT IN CLINICAL WORK, DNA
LABORATORIES WILL OFTEN FIND OUT THEY MADE ERRORS WHEN DOCTORS
NOTIFY THEM THAT AN INCORRECT DIAGNOSIS WAS MADE --
MR. HARMON: OBJECTION. CALLS FOR HEARSAY, INSUFFICIENT
FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, YOU INDICATED ON DIRECT
EXAMINATION THAT YOU HAD SOME FAMILIARITY WITH THE USE OF DNA
TYPING PROCESSES AND CLINICAL MEDICINE?
A YES. A VERY GENERAL FAMILIARITY.
Q WELL, IN A GENERAL WAY, WOULDN'T YOU AGREE THAT A DNA
TYPING LABORATORY THAT IS DOING WORK FOR DOCTORS IN CLINICAL
MEDICINE CAN FIND OUT THAT THEY MADE AN ERROR IN THEIR DNA TYPING
RESULTS IF THE DOCTOR CALLS THEM AND SAYS, "YOUR PREDICTED RESULT
DID NOT MATCH WHAT WE FOUND WHEN WE ACTUALLY DID SOME FURTHER
TESTS ON THE PATIENT?"
MR. HARMON: OBJECTION. IRRELEVANT, IMPROPER FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, WOULD YOU AGREE THAT IN
FORENSIC WORK, IT'S HARDER TO DETERMINE IF A LABORATORY MADE AN
ERROR IN CASEWORK THAN IN CLINICAL MEDICINE?
MR. HARMON: OBJECTION. CALLS FOR SPECULATION, INADEQUATE
FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, IN -- BASED ON YOUR GENERAL
KNOWLEDGE OF CLINICAL MEDICINE, WOULD YOU AGREE -- AND DNA TYPING
IN CLINICAL MEDICINE, WOULD YOU AGREE THAT IN FORENSIC WORK,
IT'S HARDER TO DETERMINE WHETHER A LABORATORY MADE AN ERROR THAN
IT IS IN CLINICAL MEDICINE?
MR. HARMON: OBJECTION. CALLS --
THE COURT: SUSTAINED.
MR. HARMON: THANK YOU.
MR. SCHECK: YOU DON'T SEEM TO LIKE THIS LINE. OKAY.
THE COURT: I DIDN'T FRIDAY EITHER.
MR. SCHECK: YEAH. WE'LL GET TO THIS I SUPPOSE.
THE COURT: NOT THROUGH THIS WITNESS.
Q BY MR. SCHECK: WOULD YOU AGREE THAT IN A PROFICIENCY
TEST, EVEN IF YOU DON'T GET A WRONG ANSWER, THAT THE TEST CAN
REVEAL WEAKNESSES AND DISCREPANCIES IN A LABORATORY'S WORK THAT
ARE IMPORTANT TO NOTE BECAUSE THEY COULD LEAD TO ERRORS IN OTHER
SITUATIONS?
MR. HARMON: OBJECTION. ARGUMENTATIVE, COMPOUND.
THE COURT: OVERRULED.
THE WITNESS: I -- I THINK I'D NEED A LITTLE MORE LIKE AN
EXAMPLE OF WHERE YOU'RE GOING WITH THAT. I'M NOT SURE I
UNDERSTAND THE QUESTION OTHERWISE.
Q BY MR. SCHECK: IF YOU TAKE A PROFICIENCY TEST AND
THERE ARE SOME DISCREPANCIES IN YOUR TYPING RESULTS, LET'S SAY
SOME EVIDENCE OF CONTAMINANTS OR IRREGULARITIES ON A DOT BLOT
FOR DQ-ALPHA, FOR EXAMPLE, BUT THEY DON'T PREVENT YOU ON THAT
PARTICULAR TEST FROM GETTING A WRONG ANSWER.
ARE YOU WITH ME?
A YES.
Q IT'S STILL IMPORTANT TO NOTE WHAT THOSE DISCREPANCIES
OR IRREGULARITIES ARE BECAUSE ON ANOTHER TEST WITH ANOTHER SET OF
SAMPLES, THOSE COULD LEAD TO ERRORS?
A YES.
Q AND THAT'S ONE OF THE THINGS THAT PROFICIENCY TESTS
CAN HELP A LABORATORY IDENTIFY?
A YES. I AGREE.
Q NOW, THE ONLY PROFICIENCY TESTS THAT HAVE BEEN
CONDUCTED IN YOUR LABORATORY FROM EXTERNAL SOURCES ARE OPEN
PROFICIENCY TESTS?
A YES.
Q AND YOU'RE FAMILIAR WITH THE RECOMMENDATION -- THE
SECTION OF THE NATIONAL ACADEMY OF SCIENCES REPORT THAT TALKS
ABOUT LABORATORY ERROR RATE?
A I'VE READ THAT SECTION, YES.
Q AND IS THAT A SECTION THAT YOU WOULD RELY UPON ON
FORMING YOUR OPINIONS CONCERNING LABORATORY ERROR RATES IN
EXTERNAL BLIND PROFICIENCY TESTING?
A WELL, THE PROBLEM THAT I HAVE WITH REGARDS TO THE NRC
IS, THEY'RE NOT CLEAR ON WHAT A BLIND TEST IS IN THEIR OWN
DEFINITIONS.
Q WELL, HAVE YOU EVER LOOKED AT THE GLOSSARY OF TERMS
AT PAGE 171 OF THE NRC REPORT?
MR. HARMON: OBJECTION. HEARSAY.
THE COURT: SUSTAINED.
MR. HARMON: UNDER 721.
Q BY MR. SCHECK: LET ME CALL YOUR ATTENTION TO PAGE 71
-- 171 OF THE NRC REPORT.
MR. HARMON: OBJECTION. CALLING TO ATTENTION IS
IRRELEVANT. IT'S HEARSAY AT THIS POINT.
THE COURT: IT'S OVERRULED.
HE CAN DIRECT HIS ATTENTION TO SOMETHING AND ATTEMPT
TO LAY A FOUNDATION HERE.
Q BY MR. SCHECK: WOULD YOU PLEASE READ THAT SECTION TO
YOURSELF?
THE COURT: MR. HARMON, DO YOU HAVE THAT?
MR. HARMON: EXCUSE ME?
THE COURT: DO YOU HAVE THAT?
MR. HARMON: I'M AWARE OF IT.
THE COURT: ALL RIGHT.
(WITNESS COMPLIES.)
THE WITNESS: OKAY.
Q BY MR. SCHECK: NOW, YOU JUST SAID THAT ONE OF THE
PROBLEMS YOU THOUGHT YOU HAD WITH THE NRC REPORT IS THE WAY THEY
DEFINE THE DIFFERENT KINDS OF PROFICIENCY TESTING?
A YES, IT IS.
MR. HARMON: OBJECTION. INADEQUATE FOUNDATION, IT'S
HEARSAY.
THE COURT: THAT QUESTION IS NOT.
OVERRULED.
Q BY MR. SCHECK: WOULD YOU AGREE THAT IN THE GLOSSARY
OF TERMS, THAT THE NRC DEFINES THE DIFFERENT KINDS OF --
MR. HARMON: OBJECTION. CALLS FOR HEARSAY.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WOULD YOU RELY UPON THE DEFINITION IN
THE GLOSSARY SESSION AT PAGE 171 OF THE NRC REPORT IN TERMS OF
ITS DEFINITION OF PROFICIENCY TESTING?
MR. HARMON: OBJECTION. IT'S IRRELEVANT, CALLS FOR
HEARSAY.
THE COURT: SUSTAINED.
THE QUESTION IS NOT APPROPRIATELY PHRASED, COUNSEL.
IT'S NOT PROSPECTIVE. IT'S "HAVE YOU."
Q BY MR. SCHECK: ALL RIGHT.
HAVE YOU RELIED ON THE SECTION IN THE GLOSSARY,
DEFINITION SECTION OF THE GLOSSARY FOR FORMING YOUR OPINIONS
ABOUT WHAT THE NRC MEANS WITH RESPECT TO PROFICIENCY TESTS AND
HOW THEY'RE DEFINED?
MR. HARMON: OBJECTION. IT'S IRRELEVANT, INADEQUATE
FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: IN FORMING YOUR OPINIONS WITH RESPECT
TO PROFICIENCY TESTING AND DNA TESTING, WOULD YOU RELY UPON THE
GLOSSARY SECTION DEFINITION OF THE NRC REPORT --
THE COURT: SUSTAINED.
Q BY MR. SCHECK: -- IN FORMING YOUR OPINIONS?
LOOKING AT THE GLOSSARY SECTION, DOES THAT REFRESH
YOUR RECOLLECTION AS TO HOW THE NRC DEFINES PROFICIENCY TESTS?
MR. HARMON: OBJECTION. IT'S ARGUMENTATIVE, IT'S HEARSAY.
THE COURT: SUSTAINED.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. SCHECK: HAVE YOU RELIED.
HAVE YOU RELIED ON THE DEFINITION SECTION OF THE NRC
REPORT WITH RESPECT TO PROFICIENCY TESTING?
MR. HARMON: OBJECTION. CALLS FOR HEARSAY, INADEQUATE
FOUNDATION. IT'S VAGUE.
THE COURT: OVERRULED.
MR. SCHECK: THANK YOU.
THE WITNESS: HAVE I RELIED ON THE NRC TO TELL ME WHAT
THOSE DEFINITIONS ARE? IS THAT THE QUESTION?
Q BY MR. SCHECK: YES. WOULD YOU RELY --
A BECAUSE THE ANSWER TO THAT IS NO. I WOULD NOT
NECESSARILY RELY ON IT.
Q YOU HAVE YOUR OWN DEFINITION.
ALL RIGHT.
BUT YOU GAVE US TESTIMONY A SECOND AGO ABOUT WHAT YOU
THOUGHT THE NRC MEANT, HOW IT DEFINED PROFICIENCY TESTING.
A WELL, THAT'S CORRECT.
Q ALL RIGHT.
IN DECIDING WHAT THE NRC MEANT ABOUT DIFFERENT KINDS
OF PROFICIENCY TESTING, HAD YOU PREVIOUSLY RELIED ON THE
DEFINITION SECTION IN THE GLOSSARY?
MR. HARMON: OBJECTION. THAT'S IRRELEVANT, COMPOUND,
UNINTELLIGIBLE. IT'S ARGUMENTATIVE.
THE COURT: OVERRULED.
THE WITNESS: NOT IN THE DEFINITION SECTION, BUT THERE'S
OTHER PLACES IN THIS WRITING WHERE IT'S VERY CONFUSING TO ME.
Q BY MR. SCHECK: WELL, DOES THE DEFINITION SECTION
CLEAR IT UP?
A THIS IS WHAT I THINK IS CORRECT.
Q AND THAT IS WHAT IS ALSO REFLECTED ON OUR CHARTS THAT
DR. COTTON GAVE?
A YES.
Q OKAY.
NOW, GETTING TO THE SECTION OF THE REPORT THAT DEALS
WITH LABORATORY ERROR RATES.
MR. HARMON: OBJECTION. IT'S HEARSAY AT THIS POINT, YOUR
HONOR.
MR. SCHECK: I'M ONLY ASKING HIM ABOUT WHETHER HE'S --
THE COURT: OVERRULED. THIS IS FOUNDATIONAL I ASSUME.
Q BY MR. SCHECK: ALL RIGHT.
THE SECTION OF THE REPORT DEALING WITH LABORATORY
ERROR RATES STARTING ON PAGE 88 TO PAGE 89, DO YOU RELY UPON THE
NATIONAL ACADEMY OF SCIENCES REPORT WITH RESPECT TO LABORATORY
ERROR RATES HOW LABORATORY ERROR RATES SHOULD BE MEASURED? DO
YOU RELY UPON THAT IN FORMING YOUR OPINIONS CONCERNING ERROR
RATES AND DNA TYPING?
A ON THEIR -- I THINK I NEED MORE DEFINITION FROM YOU
ON THAT. I MEAN, ARE THEY SAYING THAT YOU SHOULD TAKE A LOOK AT
PROFICIENCY RATES OR PROFICIENCY ERROR RATES? I WOULD AGREE WITH
THAT.
Q ALL RIGHT.
DO YOU RELY UPON THAT SECTION WHICH STATES THAT ERROR
RATES OUGHT TO BE DETERMINED THROUGH EXTERNAL BLIND PROFICIENCY
TESTING?
THE COURT: SUSTAINED. SUSTAINED. SUSTAINED.
MR. HARMON: YOUR HONOR, CAN WE APPROACH THE SIDEBAR?
THE COURT: THAT'S AN INAPPROPRIATE WAY TO PHRASE THAT
QUESTION, COUNSEL.
NO. HAVE A SEAT, MR. HARMON.
Q BY MR. SCHECK: ALL RIGHT.
LET ME CALL YOUR --
MR. SCHECK: I'M SORRY?
THE COURT: I WAS ASKING MR. HARMON TO HAVE A SEAT.
BUT -- BUT, COUNSEL, WE'RE NOT GETTING ANYWHERE WITH
THIS. WHY DON'T YOU JUST ASK HIM ABOUT THE ADVANTAGES,
DISADVANTAGES ABOUT THE DIFFERENT TYPES OF PROFICIENCY TESTING
AND LET'S MOVE ON.
MR. SCHECK: ALL RIGHT.
THE COURT: THE NRC REPORT IS NOT COMING IN THROUGH THIS
WITNESS.
MR. SCHECK: WELL, IF HE AGREES WITH IT.
THE COURT: HAS TO RELY UPON IT IN FORMING HIS OPINIONS,
COUNSEL. YOU DON'T HAVE THE FOUNDATION.
Q BY MR. SCHECK: WOULD YOU --
ALL RIGHT.
LET ME JUST LOOK -- JUST CALL YOUR ATTENTION --
YOU'RE SAYING SOME PARTS OF WHAT THEY DISCUSS ABOUT
LABORATORY ERROR RATES YOU WOULD RELY UPON?
A NO. YOU ASKED ME WOULD I AGREE WITH THEM I THINK IS
WHAT YOU --
Q NO. NO. UNFORTUNATELY, I CAN'T ASK YOU THAT
QUESTION.
I HAVE TO ASK YOU THE QUESTION, HAVE YOU RELIED UPON
THOSE SECTIONS OF THE NRC REPORT DEALING WITH HOW TO MEASURE
LABORATORY ERROR RATE IN FORMING YOUR OPINIONS?
A NO.
Q OKAY.
THANK YOU FOR THE NO.
NOW, IN TERMS OF -- YOU TOOK A FEW PROFICIENCY TESTS,
EXTERNAL PROFICIENCY TESTS THAT WERE PROVIDED TO YOU BY THE
COLLEGE OF AMERICAN PATHOLOGY AND THE COLLABORATIVE TESTING
SERVICE?
A ACTUALLY, THE COLLABORATIVE TESTING SERVICE IS
CORRECT. THE OTHER ONES THAT WE DID WERE THROUGH THE UNITED
KINGDOM BRANCH OF CELLMARK.
Q OKAY.
NOW, IN EITHER THE -- WHAT IS THE -- THERE'S AN
ACRONYM FOR THE -- THE IQAS IS THE CELLMARK ACRONYM?
A I DON'T USE IT, BUT I THINK THERE IS -- INTERNATIONAL
QUALITY ASSURANCE SCHEME OR SOMETHING LIKE THAT.
Q SO THERE'S THE IQAS PROFICIENCY TESTS AND THE
SO-CALLED CTS PROFICIENCY TESTS?
A YES.
Q AND THESE ARE OPEN TESTS?
A YES. THEY ARE DONE AS OPEN TESTS.
Q NOW, IN THESE TESTS, DID YOU RECEIVE DEGRADED
SAMPLES, SAMPLES THAT WERE SUBSTANTIALLY DEGRADED AS SPECIMENS TO
ANALYZE?
A NO, I DON'T -- IN THE ONES I LOOKED AT, NO.
Q ALL RIGHT.
BUT IT IS SUBSTANTIALLY DEGRADED SPECIMENS THAT WE'RE
DEALING WITH CERTAINLY WITH RESPECT TO THE BUNDY BLOOD DROPS IN
THIS CASE?
A WELL, I DON'T THINK NO. 52 WAS SUBSTANTIALLY
DEGRADED. I THINK SOME OF THE OTHER BUNDY DROPS I WOULD AGREE
WITH THAT. 47, 48, 49 AND 50 I THINK WOULD BE CORRECT, BUT 52 I
DON'T THINK WAS SUBSTANTIALLY DEGRADED.
Q ALL RIGHT.
IT WAS -- YOU DON'T LIKE THE WORD "SUBSTANTIALLY"
THERE?
A WELL, THAT'S -- YES. I WOULD DRAW THE LINE THERE.
Q ALL RIGHT.
HOW WOULD YOU CHARACTERIZE THE DEGRADATION LEVEL OF
SAMPLE 52?
A WELL, AGAIN, I -- I DON'T THINK I CAN ANSWER THAT
BECAUSE ALL I DID WAS A SLOT BLOT ON IT. BUT I KNOW THAT DR.
COTTON WAS ABLE TO GET AN RFLP RESULT OUT OF IT. SO THAT TELLS
ME IT'S NOT SUBSTANTIALLY DEGRADED.
Q WELL, THE RFLP RESULT -- WITHDRAWN.
IF AN RFLP -- AN RFLP RESULT CAN BE OBTAINED ON AS
LITTLE AS 25 TO 30 NANOGRAMS OF HUMAN DNA?
A SOMETHING LIKE THAT, YES.
Q ALL RIGHT.
AND THAT'S AT THE LOW END OF THE SYSTEM, ISN'T IT?
A YES, IT IS.
Q AND ORDINARILY, A BLOOD DROP, A DROP OF BLOOD WOULD
CONTAIN HOW MANY NANOGRAMS OF HUMAN DNA?
MR. HARMON: OBJECTION. THAT'S BEEN ASKED AND ANSWERED.
THE COURT: SUSTAINED. SUSTAINED.
MR. SCHECK: IT'S JUST FOUNDATIONAL AND DEFINITION OF
DEGRADED.
THE COURT: WELL, WE'VE ASKED THAT QUESTION I THINK FOUR OR
FIVE TIMES.
Q BY MR. SCHECK: WHAT WOULD BE YOUR EXPECT --
EXPECTATION -- WITHDRAWN.
YOU -- IN AUGUST OF THIS YEAR, YOU PERFORMED AN
INITIAL INSPECTION OF THESE SWATCHES?
THE COURT: AUGUST OF '94.
Q BY MR. SCHECK: AUGUST OF '94. I'M SORRY.
A YES.
Q AND YOU DID A YIELD GEL ON SOME OF THESE SWATCHES?
A YES.
Q AND BEFORE -- AND WHEN -- AND YOU ONLY DID A SLOT
BLOT AFTER YOU DID THE YIELD GEL?
A THAT'S CORRECT.
Q AND AFTER LOOKING AT THE YIELD GELS, BUT BEFORE DOING
THE SLOT BLOTS, YOU OFFERED SOME TESTIMONY WITH RESPECT TO YOUR
EXPECTATIONS AS TO HOW MUCH DNA YOU WOULD FIND IN THE BUNDY BLOOD
DROPS?
A I DON'T -- I DON'T RECALL IT BEING AN EXPECTATION. I
THINK AT THAT POINT, WE HAD DISCUSSED POTENTIALLY HOW MUCH WE HAD
FOUND. THIS IS BACK IN AUGUST, RIGHT?
Q AND BASED ON A YIELD GEL, FOR EXAMPLE, FOR ITEMS, YOU
WERE GETTING READINGS OF AS HIGH AS 150 NANOGRAMS OF DNA, OF HIGH
MOLECULAR WEIGHT DNA BASED ON THE YIELD GEL?
A THAT'S CORRECT.
Q BUT YOU COULDN'T TELL FROM A YIELD GEL WHETHER THAT
DNA WAS BACTERIAL OR HUMAN?
A THAT'S CORRECT.
Q AND WHEN YOU SUBSEQUENTLY DID THE SLOT BLOT TO FIND
OUT HOW MUCH HUMAN DNA WAS IN THE SAMPLE, YOU FOUND OUT THAT IT
WAS SUBSTANTIALLY LESS THAN 150 NANOGRAMS?
A MUCH LESS THAN 150 NANOGRAMS OF HUMAN DNA, YES.
Q AND WHAT THAT DID IS THAT WHEN YOU DID THAT SLOT
BLOT, YOU REALIZED THAT THERE WAS A LOT MORE BACTERIAL
DEGRADATION IN THESE BUNDY BLOOD DROPS THAT EVEN YOU HAD
INITIALLY ANTICIPATED WHEN LOOKING AT THE -- AT THESE SWATCHES
AND DOING YOUR YIELD GELS IN AUGUST?
A YES.
Q NOW, GETTING BACK TO THE QUESTION ABOUT PROFICIENCY
TESTING, I TAKE IT YOU ARE AGREEING THAT THE PROFICIENCY TESTS
THAT YOU RECEIVED FROM COLLABORATIVE TESTING SERVICE AND IQAS DID
NOT INVOLVE SUBSTANTIALLY DEGRADED SAMPLES?
A THAT'S CORRECT.
Q THE CALIFORNIA ASSOCIATION OF CRIME LABS PROFICIENCY
TESTS, HOWEVER, YOU KNOW THOSE DID INVOLVE SUBSTANTIALLY DEGRADED
SAMPLES?
MR. HARMON: OBJECTION. CALLS FOR HEARSAY, NO FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: DO YOU KNOW IF THE CACLD PROFICIENCY
TESTS INVOLVED SUBSTANTIALLY DEGRADED SAMPLES?
MR. HARMON: OBJECTION. CALLS FOR HEARSAY, NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: YES, I DO KNOW. THEY WERE -- SOME OF THEM
WERE SUBSTANTIALLY DEGRADED.
Q BY MR. SCHECK: AND IN FACT, WHEN THEY -- IN
PREPARATION OF THE SAMPLES FOR THE CACLD PROFICIENCY TESTS, SOME
OF THOSE SAMPLES WERE DELIBERATELY SUBJECTED TO SEVERE
ENVIRONMENTAL CONDITIONS IN ORDER TO DEGRADE THEM?
A THAT'S MY UNDERSTANDING, YES.
Q BUT THE APPROACH OF CTS AND IQAS IN THE PROFICIENCY
TESTS THAT YOU TAKE IS NOT TO INTENTIONALLY DEGRADE THE SAMPLES?
A I WOULD AGREE WITH THAT.
Q AND WOULDN'T YOU AGREE THAT IN CASEWORK, LABORATORIES
SUCH AS YOURS ARE ROUTINELY ENCOUNTERING DEGRADED SAMPLES IN
TERMS OF PERFORMING YOUR DNA ANALYSIS?
MR. HARMON: OBJECTION. CALLS FOR CONCLUSION, INADEQUATE
FOUNDATION, CALLS FOR HEARSAY.
THE COURT: SUSTAINED.
WHY DON'T YOU REPHRASE THE QUESTION.
Q BY MR. SCHECK: ALL RIGHT.
IN YOUR LAB WORK, DO YOU NOT ENCOUNTER ON A ROUTINE
BASIS IN YOUR CASES SUBSTANTIALLY DEGRADED SPECIMENS FOR PURPOSES
OF PERFORMING DNA ANALYSIS?
A AT TIMES WE DO, YES.
Q AND WOULDN'T YOU AGREE THAT IT WOULD BE -- WITHDRAWN.
AND WOULDN'T YOU AGREE THAT WELL-DESIGNED PROFICIENCY
TESTS THAT ARE INTENDED TO DUPLICATE WHAT YOU ACTUALLY GET IN
CASEWORK OUGHT TO INVOLVE DEGRADED SAMPLES?
MR. HARMON: OBJECTION. IT'S ARGUMENTATIVE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. SCHECK: WOULD YOU AGREE -- I UNDER -- MR.
SIMS, I UNDERSTAND THAT YOU CAN ONLY SUBSCRIBE TO THOSE
PROFICIENCY TESTING SERVICES WHICH ARE AVAILABLE. FAIR ENOUGH?
A YES. YES.
Q ALL RIGHT.
AND THESE QUESTIONS ARE REALLY DIRECTED AT THE KINDS
OF TESTS THAT ARE AVAILABLE FOR YOU TO TAKE.
A YES.
Q BUT IN TERMS OF THE TESTS THAT ARE AVAILABLE FOR YOU
TO TAKE -- WITHDRAWN.
IN TERMS OF DESIGNING A PROFICIENCY TEST THAT WOULD
REPLICATE, DUPLICATE WHAT YOUR LAB ACTUALLY ENCOUNTERS IN
CASEWORK, WOULDN'T YOU AGREE IT WOULD BE A GOOD IDEA TO HAVE
SPECIMENS THAT ARE DEGRADED?
MR. HARMON: OBJECTION. IT'S IRRELEVANT, NO FOUNDATION,
CALLS FOR SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: WELL, I THINK IT'S A SOMEWHAT COMPLEX ISSUE
BECAUSE ON THE ONE HAND, WHEN WE'RE DOING RFLP PROFICIENCIES, IT
ONLY WORKS WITH SAMPLES THAT ARE NOT SUBSTANTIALLY DEGRADED. SO
IF WE'RE TESTING PEOPLE FOR THEIR RFLP ABILITY, THEN IT DOESN'T
MAKE SENSE TO ME TO DO WORK WITH DEGRADED SAMPLES BECAUSE YOU
WON'T GET AN RFLP IF IT'S SUBSTANTIALLY DEGRADED.
ON THE OTHER HAND, I -- I SEE NO PROBLEM WITH LOOKING
AT DEGRADED SAMPLES IF YOU ARE GOING TO LOOK FOR PCR TYPE
RESULTS. AND THIS WHOLE -- THIS WHOLE ISSUE OF DESIGNING
PROFICIENCY TESTS THAT FAIRLY TESTS ALL THE LABORATORIES IS
SOMETHING THAT, YOU KNOW, IS BEING WORKED OUT. I MEAN, THERE ARE
-- THERE ARE SOME QUESTIONS THERE ABOUT WHAT DIFFERENT TYPES OF
SAMPLES ONE MAY WANT TO LOOK AT SO THAT EVERYBODY IS FAIRLY
TESTED. THAT'S AN ISSUE.
Q BY MR. SCHECK: LET'S TALK ABOUT MIXTURES AND
PROFICIENCY TESTING.
A OKAY.
Q IN ANY OF THE OPEN PROFICIENCY TESTS THAT YOU HAVE
DONE, WERE THERE MIXTURES OF BLOOD ON A BLOODSTAIN WHERE ONE
SOURCE CONTRIBUTED A CONSIDERABLY SMALLER AMOUNT THAN THE OTHER?
MR. HARMON: OBJECTION. "CONSIDERABLE" IS VAGUE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. SCHECK: ALL RIGHT.
WERE THERE MIXTURES IN ANY OF THESE OPEN PROFICIENCY
TESTS THAT YOU TOOK OF BLOODSTAINS WHERE THE CONTRIBUTION OF ONE
-- YOU FOUND OUT LATER THE CONTRIBUTION OF ONE OF THE
CONTRIBUTORS WAS MUCH GREATER THAN THE CONTRIBUTION OF A SECOND
OR THIRD CONTRIBUTOR?
MR. HARMON: OBJECTION. "MUCH GREATER" IS VAGUE, YOUR
HONOR.
THE COURT: HAVE YOU DONE PROFICIENCY TESTING THAT INVOLVED
MIXED SAMPLES?
THE WITNESS: YES.
THE COURT: ALL RIGHT.
HAVE THERE BEEN SIGNIFICANT DIFFERENCES IN THE
CONTRIBUTIONS THAT YOU WERE ABLE TO DETECT?
THE WITNESS: YES. FOR EXAMPLE, ON THE SEXUAL ASSAULT TYPE
EVIDENCE --
Q BY MR. SCHECK: NO, NO, NO. I'M ASKING ABOUT
BLOODSTAINS.
THE COURT: BLOODSTAINS.
THE WITNESS: I RECALL IN THE LABORATORY, THAT THERE WAS
ONE THAT WAS SUBMITTED WHERE THEY TRIED TO CATCH THE LAB AS TO
WHETHER OR NOT THEY COULD DETECT TWO STAINS THAT WERE MIXED LIKE
THAT. I THINK IT WAS ONE OF THE CTS ONES.
Q BY MR. SCHECK: WHERE ONE OF THE CONTRIBUTIONS WAS
MUCH LARGER THAN THE OTHER ONE?
A I -- I THINK THAT WAS THE SCENARIO. THAT WAS NOT
DONE BY ME, BUT SOMEBODY ELSE IN OUR LABORATORY HAD ONE WHERE I
THINK THAT WAS THE ISSUE, THAT WHETHER OR NOT THEY COULD DETECT
THIS MIXING.
Q WELL, A MIXTURE OF SALIVA AND BLOOD OR A MIXTURE OF
BLOOD AND BLOOD?
A I THINK IT WAS TWO BLOODS. I'D HAVE TO CHECK
BECAUSE, AGAIN, THAT WAS NOT MY PERSONAL TEST. BUT I THINK WE HAD
SOMETHING LIKE THAT COME THROUGH THE LABORATORY.
Q WHICH ONE WOULD THAT BE?
A I DON'T KNOW THE NUMBERS OFF HAND. I WOULD HAVE TO
GO BACK TO THE LAB AND LOOK INTO THAT.
Q ARE YOU CERTAIN OF THAT?
A I'M --
THE COURT: HE JUST SAID HE WOULD HAVE TO GO BACK TO THE
NUMBERS. THAT'S ARGUMENTATIVE.
MR. SCHECK: MAYBE -- WELL, I'M ONLY ASKING IF HE --
Q BY MR. SCHECK: WHAT YOU'RE TELLING US IS THAT YOU
THINK THAT MIGHT BE TRUE, BUT YOU'RE NOT SURE?
A I'M NOT ABSOLUTELY SURE, BUT I HAVE A RECOLLECTION OF
THAT, YES.
Q NOW -- BUT YOU PERSONALLY, FOR EXAMPLE, HAVE TAKEN NO
TESTS INVOLVING THE MIXTURES OF BLOOD WHERE ONE SOURCE
CONTRIBUTES A MUCH GREATER AMOUNT THAN ANOTHER?
A WHERE THERE WERE TWO BLOOD SAMPLES MIXED?
Q YEAH. A BLOOD --
A NO. NO.
Q AND HAVE YOU EVER TAKEN A PROFICIENCY TEST WHERE YOU
WERE TRYING TO DETECT GENOTYPES IN A MIXED BLOODSTAIN WHERE THERE
WAS MORE THAN TWO CONTRIBUTORS, WHERE THERE WAS THREE OR FOUR
CONTRIBUTORS?
A NO.
Q BUT IN THIS CASE, YOU'VE BEEN ASKED TO ANALYZE
BLOODSTAINS THAT AT LEAST THE PROSECUTION IS CLAIMING HAS AS MANY
AS THREE SOURCES?
A YES.
Q AND YOU HAVE NEVER TAKEN A PROFICIENCY TEST, EVEN AN
OPEN PROFICIENCY TEST THAT INVOLVED SUCH A SITUATION?
A THAT'S CORRECT.
Q NOW, WOULDN'T YOU AGREE THAT IN TERMS OF DNA TYPING,
THAT -- PARTICULARLY PCR BASE TYPING, THAT MIXTURES PRESENT
SPECIAL PROBLEMS?
A WELL, THERE'S TWO THINGS. YOU HAVE TO BE ABLE TO
DETECT THE MIXTURE AND THEN YOU HAVE TO BE ABLE TO INTERPRET THE
MIXTURE.
Q NOW, I NOTICE ON DIRECT EXAMINATION THAT YOU NEVER
USED ANY OF THESE DOT BLOT STRIPS TO EXPLAIN HOW YOU GOT YOUR
RESULTS. AM I CORRECT ON THAT?
A I DON'T THINK ANY BLOT DOT RESULTS WERE PRESENTED.
Q RIGHT.
BUT THAT'S HOW YOU GOT ALL THESE DQ-ALPHA RESULTS, IS
USING THIS BLOT DOT STRIP?
A THAT'S CORRECT.
MR. SCHECK: AND WHAT I WOULD ASK IS TO HAVE THIS MARKED
DEFENDANT'S NEXT IN ORDER.
THE COURT: 1166.
(DEFT'S 1166 FOR ID = DOT BLOT STRIP)
THE COURT: HAVE YOU SHOWN THAT TO MR. HARMON?
MR. SCHECK: YEAH.
Q BY MR. SCHECK: NOW, WHAT I'M GOING TO PUT UP ON THE
ELMO HERE IS -- TO START WITH IS JUST A DOT BLOT STRIP.
AND WHAT I WOULD LIKE YOU TO DO, MR. SIMS, IS EXPLAIN
TO THE JURY, IF YOU GO THROUGH IT STEP BY STEP, HOW ONE READS ONE
OF THESE STRIPS.
A OKAY.
Q NOW, LET'S JUST --
MR. SCHECK: BACK. BACK FURTHER. BACK FURTHER.
Q BY MR. SCHECK: OKAY.
WHY DON'T WE JUST USE FOR A SECOND THE ONE AT THE TOP
THAT IS LABELED DNA 17C. OKAY?
A OKAY.
Q THAT ONE'S BLANK, RIGHT?
A OKAY.
Q AND STARTING FROM THE LEFT TO THE RIGHT, COULD YOU
PLEASE TELL THE JURY -- THERE ARE A SERIES OF NUMBERS ACROSS THIS
STRIP, CORRECT?
A YES.
Q ALL RIGHT.
AND COULD YOU TELL THE JURY WHAT EACH OF THESE
NUMBERS REPRESENTS AND HOW ONE GETS A READING OFF ONE OF THESE
STRIPS?
A OKAY.
Q AND IF -- MAYBE WE SHOULD EVEN USE -- DO WE HAVE ONE
OF THOSE TELESTRATOR THINGS?
MAYBE -- WE'RE TRYING TO SIMULATE A DIRECT
EXAMINATION, MR. SIMS. MAYBE YOU COULD COME DOWN AND STAND NEXT
TO ME OR STAND OVER HERE. AND YOU KNOW HOW TO USE THIS POINT
MAKER NOW?
A YEAH.
Q SURE BETTER THAN I.
I'M SORRY. THERE YOU GO.
OKAY.
STARTING WITH THE ONE THAT SAYS DNA 17, COULD YOU
TELL US WHAT -- STARTING ON THE LEFT, WHAT THE 1 REPRESENTS?
A OKAY.
THE 1 IS FOR THE OVERALL TYPE 1 PROBE. IN OTHER
WORDS, WE'LL TALK LATER ABOUT THE SUBTYPES OF THE 1. BUT THE
FIRST THING IS THAT THAT'S AN OVERALL 1 PROBE THAT'S --
NOW, KEEP IN MIND THE PROBE IN THIS CASE IS ALREADY
ON THE STRIP. THAT'S WHAT THE MANUFACTURER DOES. THEY PROVIDE
YOU WITH A STRIP THAT HAS THE PROBE ALREADY ON IT.
YOU'LL RECALL WE TALKED ABOUT RFLP. WE PUT THE DNA
ONTO THE STRIP AND THEN WE HIT IT WITH THE PROBE. WELL, HERE, WE
PUT THE PROBE ALREADY ON THE STRIP -- THE PROBE IS ALREADY ON THE
STRIP AND NOW WE HIT IT WITH THE DNA. THIS IS WHY IT'S CALLED A
REVERSE DOT BLOT.
Q AND WOULDN'T IT BE FAIR TO SAY THAT -- THAT THE WAY
THIS PCR BASE METHOD WORKS IS, IS THAT YOU TAKE THE -- YOU
EXTRACT THE SWATCHES, RIGHT?
A RIGHT.
Q AND YOU CUT THEM UP, YOU PUT THEM IN THOSE TEST
TUBES, THOSE LITTLE TEST TUBES.
A RIGHT.
Q AND THEN YOU AMPLIFY UP THE DNA?
A RIGHT.
Q AND SO WHAT YOU'RE REALLY DOING IS, YOU'RE POURING
THAT SO-CALLED AMPLIFIED PRODUCT OVER THE STRIP?
A RIGHT.
Q AND THEN WHEN YOU POUR THE AMPLIFIED PRODUCT OVER THE
STRIP, YOU SEE WHICH OF THESE BLUE DOTS LIGHT UP AND WHICH DON'T?
A RIGHT.
Q OKAY.
SO WHAT I TAKE IT YOU'RE SAYING IS THAT STARTING ON
THE FAR LEFT-HAND SIDE OF 17, THE BLANK ONE, THAT THERE'S A DOT
THERE THAT WE CAN'T SEE LIT UP, CORRECT?
A ON -- SAY AGAIN?
Q ON THE BLANK ONE, THE SECOND ONE DOWN.
A YES.
Q RIGHT?
A RIGHT.
Q SO POINT -- THAT'S WHERE YOU HAVE THE POINTER RIGHT
NOW.
NOW, UNDERNEATH -- RIGHT NEXT TO THAT 1, THERE'S A
LITTLE -- THERE'S A LITTLE PIECE OF PROBE, RIGHT?
A RIGHT. THERE'S A DOT OF PROBE.
Q A DOT OF PROBE.
WHEN YOU POUR THE AMPLIFIED PRODUCT UP, IF THERE'S
ANY GENOTYPE THAT IS PART OF THE 1 SYSTEM HERE, OKAY, THAT DOT
SHOULD LIGHT UP?
A THAT'S CORRECT.
Q AND THERE ARE SUBTYPES THAT WE'LL DISCUSS AS WE GO
ACROSS THIS STRIP OF THE 1. THERE'S A 1.1, A 1.2 AND A 1.3?
A THAT'S CORRECT.
Q OKAY.
COULD YOU MOVE TO THE RIGHT NOW?
WHAT'S NEXT TO THAT 1?
A OKAY.
THE NEXT ONE IS FOR WHAT WE CALL THE 2 ALLELE. THERE
WOULD BE A PROBE THERE.
Q PLEASE USE THE SECOND STRIP DOWN, THE ONE THAT
DOESN'T HAVE ANYTHING LIT ON IT.
A OKAY.
Q OKAY?
THAT'S WHERE THE 2 WOULD BE?
A THAT'S WHERE THE 2 WOULD BE.
Q SO IF THERE WAS ANYBODY THAT HAD A GENOTYPE FOR THE 2
AND YOU POURED THE AMPLIFIED PRODUCT ON THE STRIP, THE BLUE DOT
SHOULD LIGHT UP?
A YES.
Q OKAY.
MOVING TO THE RIGHT, WHAT DO WE HAVE?
A THAT'S THE 3 PROBE RIGHT IN THAT AREA (INDICATING).
Q SO IF WE POUR AMPLIFIED PRODUCT ON THE STRIP AND
THERE'S ANYBODY THAT HAS A 3 ALLELE, RIGHT, THAT SHOULD LIGHT UP?
A YES.
Q ALL RIGHT.
NEXT?
A THIS IS THE 4 PROBE ALLELE RIGHT THERE (INDICATING).
Q SO IF WE POUR AMPLIFIED PRODUCT ON THE STRIP AND
SOMEBODY HAS A 4 ALLELE, THAT BLUE DOT SHOULD LIGHT UP?
A THAT'S CORRECT.
Q ALL RIGHT.
NOW, WHAT'S THIS NEXT DOT?
A OKAY.
THIS IS AN IMPORTANT DOT RIGHT HERE. THIS IS CALLED
THE C OR CONTROL DOT.
AND THE POINT FOR THE CONTROL DOT IS, THAT TELLS YOU
FIRST OF ALL THAT YOU HAD ENOUGH DNA ON THE SAMPLE TO SEE BOTH OF
THE ALLELES IN A SAMPLE. IN OTHER WORDS, THERE'S ENOUGH DNA TO
GET A RESULT, A TYPING RESULT.
IT ALSO IS USEFUL IN THAT IT CAN BE USED TO GAUGE THE
RELATIVE CONTRIBUTIONS OF SAMPLES WHEN YOU START TO LOOK AT A
MIXTURE SITUATION. AND WE'LL TALK ABOUT THAT I THINK LATER ON IF
I'M GUESSING WHERE YOU'RE GOING WITH THIS.
Q OKAY.
WE'LL TALK ABOUT THAT.
A BUT THAT'S AN IMPORTANT DOT, IS THAT C DOT.
Q WELL, LET'S TALK ABOUT THAT JUST FOR ONE SECOND, SEE
IF WE UNDERSTAND THIS.
SO THIS C DOT, THEY CALL THAT THE "ALL CONTROL,"
RIGHT?
A YES. THAT'S WHAT THEY USED TO CALL IT I BELIEVE.
Q AND IT HAS LESS PROBE ON IT THAN THE OTHER DOTS?
A THAT'S CORRECT.
Q SO THE THEORY IS, IS THAT WHEN YOU POUR AMPLIFIED
PRODUCT OVER THIS STRIP, THAT IF THIS C DOT LIGHTS UP, RIGHT --
A YES.
Q -- THEN THAT MEANS YOU'RE NOT MISSING ANY POTENTIAL
ALLELES BECAUSE IF THIS DOT LIGHTS UP, THEN YOU SHOULD BE
DETECTING ALL THE OTHER POTENTIAL ALLELES IN THE MIXTURE?
A IN A -- WELL, IN A NON-MIXED SAMPLE.
Q NON-MIXED SAMPLE.
A NON-MIXED SAMPLE. THAT'S IMPORTANT.
Q NOW, OF COURSE, AS WE'RE GOING TO GET TO IN A SECOND,
WHEN YOU HAVE A MIXTURE, THAT C DOT HAS LESS UTILITY AS A
CONTROL, DOESN'T IT?
A NO. I THINK, FOR EXAMPLE, IN DR. BLAKE'S ARTICLE, HE
TALKS ABOUT USING THAT AS A CONVENTION AND LOOKING AT THE
INTENSITY OF THE DOTS RELATIVE TO THE C. SO WE -- WE -- I
WOULDN'T SAY IT'S --
Q WELL, LET ME PUT IT TO YOU THIS WAY.
THE COURT: EXCUSE ME. COUNSEL, YOU NEED TO NOT INTERRUPT
HIS ANSWER. YOU NEED NOT TO TALK AT THE SAME TIME.
MR. SCHECK: I'M SORRY.
Q BY MR. SCHECK: LET ME PUT IT -- LET ME FORMULATE THE
QUESTION FOR YOU THIS WAY.
WHEN YOU HAVE A MIXTURE AND YOU POUR THE AMPLIFIED
PRODUCT OVER THE C DOT, THIS C DOT CAN BE LIT UP BY THE PRIMARY
CONTRIBUTOR OF THE MIXTURE, CORRECT?
A THAT'S CORRECT.
Q AND SO IF THERE IS A SECONDARY OR A SECOND
CONTRIBUTOR TO THE MIXTURE OR A THIRD CONTRIBUTOR TO THE MIXTURE
OR EVEN A FOURTH CONTRIBUTOR TO THE MIXTURE THAT HAVE LESS DNA
>FROM THOSE SOURCES -- ARE YOU WITH ME?
A YES.
Q THE C DOT WON'T TELL YOU ABOUT WHETHER YOU'RE MISSING
ANY ALLELES FROM THE SECOND AND THIRD AND FOURTH CONTRIBUTOR
BECAUSE THE C DOT IS BEING LIT UP BY THE PRIMARY CONTRIBUTOR?
A THAT'S TRUE.
Q AND IN THAT SITUATION, WHERE YOU HAVE SUCH A MIXTURE,
THE UTILITY OF THE C DOT CONTROL IN TERMS OF TELLING YOU WHETHER
YOU'RE SEEING ALL THE ALLELES IS NOT AS GOOD AS IT WOULD BE WERE
IT JUST ONE PERSON?
A WELL, AGAIN, I MEAN, YOU CAN ONLY TALK ABOUT WHAT YOU
CAN SEE THERE. BUT YOUR POINT IS WELL TAKEN, BUT YOU CAN'T SAY
MUCH MORE ABOUT THOSE VERY WEAK ALLELE DOTS.
Q OKAY.
AND OF COURSE, WHAT WE'RE DEALING WITH IN THIS CASE,
AS WE'LL DISCUSS IN A MINUTE, ARE MIXTURES WHICH INVOLVE AT LEAST
THREE CONTRIBUTORS ACCORDING TO THE ANALYSIS THE PROSECUTION HAS
PUT UP HERE?
A WELL, I -- IT'S -- I --
Q COULD BE THREE.
A COULD BE THREE.
Q COULD BE MORE, RIGHT?
A WE DON'T KNOW EXACTLY HOW MANY.
Q OKAY.
WE'LL DISCUSS THAT IN A MINUTE.
NOW -- SO THAT'S THE C DOT?
A THAT'S THE C DOT. THAT'S THE IMPORTANT C DOT.
Q RIGHT.
NOW, THE NEXT DOT OVER TO THE RIGHT, WHAT'S THAT?
A THAT'S THE 1.1 DOT. SEE, NOW WE'RE GETTING INTO THE
SUBTYPING OF THE 1 ALLELES BECAUSE THE 1 ALLELE CAN BE BROKEN
DOWN INTO THE 1.1, THE 1.2 AND THE 1.3.
Q AND WHEN YOU'RE SEEING A 1.1, YOU SHOULD ALSO SEE
THAT 1 OVER AT THE LEFT HAND, LEFT-HAND SIDE, RIGHT?
A IF THAT 1.1 IS DEFINITELY DUE TO A 1.1, YOU SHOULD,
YES.
Q ALL RIGHT.
AND WHEN YOU -- WHEN YOU MAKE THAT CAVEAT, IF IT'S A
REAL 1.1, SOMETIMES IN THIS SYSTEM, THERE ARE LIMITATIONS TO THIS
SYSTEM?
A YES. I THINK I MENTIONED THAT ON THE DIRECT
EXAMINATION.
Q AND ONE OF THE PROBLEMS THAT AN ANALYST HAS WITH THIS
SYSTEM IS, SOMETIMES THESE DOTS LIGHT UP FAINTLY AND IT IS
DIFFICULT TO TELL WHETHER THE DOT REPRESENTS A REAL ALLELE IN THE
MIXTURE OR IT IS WHAT IS I GUESS IN YOUR BUSINESS CALLED AN
ARTIFACT?
A YES. THAT'S ONE OF THE LIMITATIONS OF THE SYSTEM.
Q AND COULD YOU TELL THE JURY WHAT AN ARTIFACT IS?
A AN ARTIFACT WOULD BE, FOR EXAMPLE, IF YOU ARE SEEING
SOME SIGNAL AT ONE OF THESE DOTS THAT'S VERY WEAK, BUT IT'S NOT
REALLY PART OF THE ACTUAL TYPE.
Q SO WOULD IT BE A FAIR WAY TO DISTINGUISH IT IS THAT
SOMETIMES YOU SEE A DOT LIGHT UP AND YOU KNOW IT'S REAL IN THE
SENSE THAT IT ACTUALLY REPRESENTS THE DNA FROM THE ORIGINAL
SOURCE?
A WELL, THAT YOU REALLY ARE SEEING THE TYPE.
Q REALLY ARE SEEING THE TYPE?
AND THEN SOMETIMES THESE DOTS CAN LIGHT UP AND IT'S
NOT REAL, IT'S AN ARTIFACT?
A IF THEY'RE WEAK, THAT'S TRUE. IF THEY'RE VERY WEAK,
THAT'S TRUE.
Q NOW LET'S MOVE OVER TO THE NEXT DOT. NOW THIS GETS A
LITTLE COMPLICATED, DOESN'T IT?
A YES. THIS IS -- THIS IS WHERE THE SYSTEM GETS
COMPLICATED. AND THE BASIC LIMITATION IS IS THAT THERE IS NOT A
UNIQUE PROBE FOR THIS 1.2 ALLELE. SO WE DON'T HAVE A SINGLE DOT
THAT SAYS THIS IS WHAT YOU SEE, LIGHT UP IF THE 1.2 IS THERE.
SO WHAT YOU HAVE TO DO IS, YOU HAVE TO DO A LITTLE
BIT OF LOGIC HERE AND YOU HAVE TO DO A LITTLE BIT OF LOGIC TO
DECIDE WHETHER OR NOT THE 1.2 IS THERE AGAINST THE CONTRIBUTION
HERE FROM THE 1.3 OR THE CONTRIBUTION FROM THE 4. AND IT'S HARD
TO DO IT WITHOUT SHOWING YOU AN EXAMPLE.
BUT I THINK YOU'LL RECALL SEEING A LOT OF MY RESULTS
WHERE I SAID POSSIBLE 1.2, POSSIBLE 1.2. THAT'S BECAUSE YOU CAN'T
ALWAYS SAY THAT THE 1.2 IS PRESENT. FOR EXAMPLE, IF THE 4 ALLELE
IS DEFINITELY PRESENT, YOU MAY HAVE TROUBLE SAYING COULD THERE BE
A 1.2 THERE ALSO.
AND THAT'S WHY YOU SAW A LOT OF THOSE RESULTS IN
PARENTHESIS AND THAT'S ONE OF THE LIMITATIONS OF THE SYSTEM, AND
I HAVE TO MAKE THE ASSUMPTION THAT THAT RESULT -- THAT DOT COULD
BE THERE, THAT TYPE COULD BE THERE. I JUST CAN'T DETECT IT IN A
MIX.
Q BUT LET'S -- LET ME TRY TO BREAK IT DOWN AS SIMPLE AS
WE CAN FOR READING THIS PARTICULAR DOT.
WHAT THAT DOT REPRESENTS IS THAT, IF THAT DOT LIGHTS
UP, YOU COULD EITHER HAVE THE 1.2 ALLELE?
A YES.
Q YOU COULD HAVE THE 1.3 ALLELE?
A YES.
Q OR YOU COULD HAVE THE 4 ALLELE?
A YES. OR COMBINATIONS THEREOF.
Q OR COMBINATIONS.
BUT ONE WAY YOU CAN DOUBLE-CHECK IS, IF THAT DOT
LIGHTS UP AND THE 4 DOT LIGHTS UP, YOU KNOW THAT THERE'S A 4?
A THAT'S CORRECT.
Q AND IF THIS PARTICULAR DOT LIGHTS UP AND THE 1.3
RIGHT TO THE DIRECTLY TO THE RIGHT OF IT LIGHTS UP, YOU KNOW YOU
HAVE A 1.3?
A YES.
Q AND THEN SOMETIMES YOU MIGHT BE LUCKY ENOUGH BY
PROCESS OF ELIMINATION TO DETERMINE IF YOU HAVE A 1.2?
A THAT'S CORRECT.
Q OKAY.
MOVING OVER TO THE RIGHT -- AND THIS IS A DOT OF SOME
SIGNIFICANCE TO YOUR LABORATORY I TAKE IT. THAT IS THE 1.3 DOT?
A YES.
Q AND IF YOU HAVE A 1.3 ALLELE PRESENT, THAT DOT SHOULD
LIGHT UP?
A YES. IF THE 1.3 IS THERE, YOU SHOULD DEFINITELY SEE
THAT DOT LIGHT UP. SOMETIMES THIS IS THE ONE THAT IS THE MOST
USEFUL INDICATOR OF THIS CROSS-HYBE PHENOMENON THAT I TALKED
ABOUT BECAUSE IT'S VERY, VERY CLOSE IN ITS DNA SEQUENCE TO SOME
OF THE OTHER ALLELES.
AND SO YOU'RE -- IF YOU SEE ANY OF THIS WEAKNESS IN
THE BACKGROUND, THAT COULD BE AN ARTIFACT, AND THAT'S WHAT YOU
REALLY KEY ON WHEN YOU LOOK AT THESE TYPES OF STRIPS.
Q SO IN OTHER WORDS -- YOU ANTICIPATE I'M GOING TO ASK
YOU SOME QUESTIONS ABOUT INTERPRETING THIS 1.3 DOT, DON'T YOU?
A OH, I HAD NO IDEA YOU WERE GOING TO -- OF COURSE,
YES.
Q THERE WERE SOME PROBLEMS --
A THIS IS A CRITICAL -- THIS IS A CRITICAL DOT, I WOULD
AGREE WITH YOU.
Q AND YOUR LABORATORY DOES HAVE SOME PROBLEMS WITH THIS
1.3 DOT LIGHTING UP PERSISTENTLY IN LOTS OF TESTS, AND IT'S HARD
-- IT'S BEEN HARD FOR YOU TO DETERMINE WHY THAT'S HAPPENING?
MR. HARMON: OBJECTION. IT'S ARGUMENTATIVE.
THE COURT: SUSTAINED. THE JURY IS TO DISREGARD.
Q BY MR. SCHECK: ALL RIGHT.
LET'S -- LET'S MOVE ON FROM THE 1.3 DOT.
WHAT'S THE ONE TO THE RIGHT OF IT?
A THAT'S CALLED THE ALL BUT 1.3. AND THAT'S USED TO
DISTINGUISH IF YOU HAVE A SITUATION WHERE YOU'RE TRYING TO
DISTINGUISH THE 1.3, 1.3 HOMOZYGOTE. THAT'S WHAT THAT DOT IS
FOR. IT'S AGAIN PART OF THE LOGIC.
Q RIGHT.
NOW, REMEMBER WE HAD -- WE DISCUSSED -- WHEN WE WERE
DISCUSSING PCR CARRY-OVER CONTAMINATION --
A YES.
Q -- WE HAD THOSE CHARTS OUT WITH THE LITTLE PYRAMIDS?
A YES.
Q ALL RIGHT.
AND WE WERE DISCUSSING THE NUMBER OF -- THOSE
BILLIONS OF FRAGMENTS THAT WE CALLED AMPLICONS?
A YES.
Q AND IF YOU RECALL, WE USED AN EXAMPLE WHERE THE
STARTING MATERIAL CONTAINED DNA THAT WAS 1.3, 1.3?
A YES.
Q ALL RIGHT.
NOW, LET'S -- STARTING BACK TO THAT PYRAMID WHERE YOU
HAVE A SAMPLE THAT HAS 1.3, 1.3 IN IT, OKAY?
A OKAY.
Q BILLIONS OF LITTLE AMPLICONS, RIGHT?
A OKAY.
Q WHAT IT WOULD DO IN THIS PARTICULAR STRIP, IT WOULD
LIGHT UP THAT 1.3 DOT?
A YES.
IF THEY ALL -- NOW, THERE -- YOU HAVE TO GIVE ME THE
EXACT CONDITIONS. THEY'RE ALL GETTING IN THERE?
Q IT'S A 1.3, 1.3.
A CONTAMINANT?
Q NO, NO. WE'LL GET TO CONTAMINANTS IN A MINUTE.
A OKAY.
Q I'M TALKING ABOUT A SITUATION WHERE YOU HAVE BILLIONS
OF FRAGMENTS THAT WERE JUST 1.3, 1.3.
A OKAY.
Q YOU REMEMBER THAT?
A YES.
Q I'LL PULL OUT THE CHART.
A NO, I REMEMBER IT. YES.
Q I KNOW YOU REMEMBER IT, BUT THAT'S NOT THE POINT.
MR. HARMON: YOUR HONOR, OBJECTION. COULD WE KEEP THE
COMMENTS DOWN? COULD YOU INSTRUCT MR. SCHECK --
THE COURT: NO. IF WE CAN ALSO KEEP THOSE COMMENTS DOWN
TOO.
Q BY MR. SCHECK: ALL RIGHT.
THIS WAS THE CHART WE WERE USING TO DISCUSS THE
AMPLICONS, CORRECT?
A YES.
Q ALL RIGHT.
THE COURT: THIS IS DEFENSE EXHIBIT?
MR. SCHECK: AND THAT CHART NUMBER IS 1133.
Q BY MR. SCHECK: AND ON 1133, OUR HYPOTHETICAL WAS, WE
WERE STARTING WITH BIOLOGICAL MATERIAL THAT CONTAINED, FOR THIS
DQ-ALPHA SYSTEM, 1.3, 1.3.
A OKAY.
Q AND WE DISCUSSED HOW ON JUST ONE PCR RUN, YOU -- IN
ONE OF THOSE LITTLE TUBES, YOU WOULD CREATE 4 BILLION 290 MILLION
FRAGMENTS OF 1.3, 1.3; IS THAT CORRECT?
A YES. YES.
Q OKAY.
A BUT AGAIN, I SHOULD POINT OUT THAT WE'RE NOT TALKING
ABOUT IN ANY CASE, WE'RE STARTING WITH JUST ONE FRAGMENT, RIGHT.
YOU'RE SAYING THEORETICALLY YOU END UP WITH BILLIONS OF COPIES.
Q RIGHT.
A THAT -- I'M COMFORTABLE WITH THAT, YES.
Q NOW, IF WE HAD THE SCENARIO WE WERE TALKING ABOUT THE
OTHER DAY, SAMPLES OF 1.3, 1.3, HOW WOULD IT LOOK ON THAT CHART?
THE 1 WOULD LIGHT UP IN THE FAR LEFT-HAND COLUMN, RIGHT?
A YES.
Q ALL RIGHT.
AND THE 1.2, 1.3, 4 DOT WOULD LIGHT UP?
A YES.
Q THE 1.3 DOT WOULD LIGHT UP?
A YES.
Q BUT THE ALL BUT 1.3 DOT WOULD NOT LIGHT UP?
A IT SHOULD NOT LIGHT UP IF IT'S A 1.3, 1.3 HOMOZYGOUS
TYPE.
Q NOW, IN TERMS OF PCR CARRY-OVER CONTAMINATION, IF
THERE WERE A PROBLEM OF PCR CARRY-OVER CONTAMINATION AT A
LABORATORY, SUCH THAT THROUGH REPETITIVE TYPING, THERE WAS SOME
1.3 AMPLICONS IN THE LABORATORY -- ARE YOU WITH ME?
A YES.
Q -- THAT COULD ACCOUNT, IN TERMS OF TYPING, FOR THE
1.3 LIGHTING UP PERSISTENTLY IN VARIOUS STRIPS, EVEN IF FAINTLY?
MR. HARMON: OBJECTION. THAT'S ARGUMENTATIVE. IT'S VAGUE.
THE COURT: OVERRULED.
THE WITNESS: WELL, AGAIN, THAT'S WHY YOU RUN ALL THOSE
CONTROL STRIPS. BECAUSE THOSE ARE ALL NEGATIVE, THAT TELLS YOU
THAT YOU'RE NOT SEEING THIS CONSISTENT PROBLEM.
Q BY MR. SCHECK: AND THAT'S WHY YOU ALSO RUN QUALITY
POSITIVE CONTROL STRIPS TOO?
A YES. THAT'S ONE REASON WE RUN THAT TOO.
Q OKAY.
NOW --
OKAY.
THANK YOU VERY MUCH FOR THIS. AND MAYBE YOU COULD
RETURN TO THE STAND, AND WE'LL MOVE A LITTLE FURTHER HERE.
(THE WITNESS COMPLIES.)
Q BY MR. SCHECK: THAT'S A THUMBNAIL EXPLANATION OF HOW
TO READ THESE DQ-ALPHA STRIPS?
A YES.
Q NOW, WE WERE TALKING ABOUT MIXTURES AND HOW TO
INTERPRET THEM. DO YOU RECALL THAT?
A YES.
Q NOW, THERE ARE DIFFERENT KINDS OF MIXTURES THAT DNA
LABORATORIES ENCOUNTER IN THEIR CASEWORK?
A YES.
Q AND THE ONE THAT HAS BEEN DONE -- WITHDRAWN.
A VERY TYPICAL KIND OF CASE FOR A DNA LABORATORY
INVOLVES A SEXUAL ASSAULT CASE?
A YES, IT DOES.
Q AND A MIXTURE IN A SEXUAL ASSAULT CASE, IF LET'S SAY
THERE IS ONE PERPETRATOR AND ONE VICTIM, ORDINARILY INVOLVES DNA
>FROM THE SPERM OF THE PERPETRATOR?
A YES.
Q AND DNA FROM THE EPITHELIAL CELLS OF THE VICTIM?
A YES.
Q AND THE EPITHELIAL CELLS, THOSE ARE LIKE THE SKIN
CELLS?
A YES. THOSE ARE THE -- IN THIS CASE, YOU'D BE TALKING
ABOUT THE CELLS THAT LINE THE VAGINA.
Q RIGHT.
SO ORDINARILY HAPPENS IN A SEXUAL ASSAULT CASE IS
THAT A SWABBING IS TAKEN FROM THE VICTIM OF THE RAPE, AND ON THE
SWAB, THERE IS EVIDENCE OF SPERM AND ALSO CELLS, EPITHELIAL CELLS
>FROM THE VAGINAL WALL OF THE VICTIM?
A YES. THAT WOULD BE TYPICAL.
Q AND THAT'S THE TYPICAL KIND OF MIXTURE THAT FORENSIC
DNA LABORATORIES WILL ENCOUNTER IN SUCH SEXUAL ASSAULT CASES?
A YES.
Q AND WHEN YOU'RE DEALING WITH THAT KIND OF A MIXTURE,
YOU CAN DO SOMETHING THAT'S KNOWN AS A DIFFERENTIAL EXTRACTION,
CORRECT?
A YES.
Q AND THAT'S -- I MEAN LITERALLY, WHAT YOU CAN DO IS,
YOU CAN TAKE THE MIXTURE AND YOU CAN LOOK AT IT UNDER A
MICROSCOPE?
A YES.
Q AND YOU CAN LITERALLY SEE THE SPERM CELLS THERE?
A YES, YOU CAN.
Q AND THEN WHAT YOU DO IN THE DIFFERENTIAL EXTRACTION
IS, YOU LITERALLY TAKE SOME KIND OF A DETERGENT AND YOU POUR IT
OVER THE SAMPLE, CORRECT?
A WELL, YOU DON'T JUST POUR IT OVER THE SAMPLE. IT'S
ALL DONE IN A TEST TUBE.
Q IT'S DONE IN A TEST TUBE, RIGHT?
A YES.
Q THE FANCY NAME FOR THAT IS A LYSIS?
A YES. YOU DO A LYSIS, UH-HUH.
Q ALL RIGHT.
BUT LITERALLY WHAT THAT MEANS IS, YOU FIRST PUT IN A
DETERGENT THAT IS NOT AS STRONG AS A SECOND DETERGENT THAT YOU'RE
GOING TO PUT IN, CORRECT?
A WELL, IT'S -- IT'S A LITTLE MORE INVOLVED THAN THAT.
IT -- WHAT IT REALLY COMES DOWN TO IS --
THE COURT: HOLD ON. HOLD ON. HOLD ON.
WHAT'S THE RELEVANCE OF THIS?
MR. SCHECK: I'M GOING TO TRY THIS UP IN JUST A SECOND.
THE COURT: QUICKLY.
MR. SCHECK: QUICKLY.
Q BY MR. SCHECK: IN A DIFFERENTIAL EXTRACTION IN A
SEXUAL ASSAULT CASE, WHAT YOU CAN DO IS FIRST EXTRACT THE DNA
>FROM THE EPITHELIAL CELLS, CORRECT?
A YES.
Q AND YOU DO THAT BY LITERALLY POURING IN THIS
CHEMICAL, AND THAT WILL BURST OPEN THE CELLS FROM -- THE
EPITHELIAL CELLS AND YOU CAN DRAIN OUT THE DNA FROM THE VICTIM?
A WELL, YES.
BASICALLY WHAT YOU'RE DOING IS, IN THIS DIFFERENTIAL
EXTRACTION PROCESS IS, YOU'RE FIRST GETTING OUT THE DNA FROM THE
FEMALE CONTRIBUTION FROM HER CELLS WHILE THE SPERM HEADS -- UNTIL
YOU ADD ANOTHER REAGENT, THE SPERM HEADS, BECAUSE THEIR DNA IS
PACKAGED DIFFERENTLY, THEY ARE RESISTANT TO THAT DIFFER -- THAT
FIRST LYSIS THAT YOU MENTIONED. SO THEY STAY, THE DNA STAYS WITH
THE SPERM.
Q SO THEN YOU CAN POUR IN A STRONGER CHEMICAL AND YOU
DO A LYSIS OR YOU BURST OPEN THE SPERM CELLS, CORRECT?
A YES.
Q AND SO IN THAT FASHION, YOU CAN WITH SOME ASSURANCE
-- DOESN'T ALWAYS WORK PERFECTLY -- BUT WITH SOME ASSURANCE, YOU
CAN SEPARATE THE SPERM DNA FROM THE EPITHELIAL CELL DNA FROM THE
VICTIM?
A YES. AGAIN, IT DOESN'T ALWAYS WORK PERFECTLY, BUT
YOU CAN GET AN IDEA OF WHAT THE MIX IS THAT WAY.
Q AND IN THAT KIND OF A MIXTURE SITUATION, YOU -- YOU
CAN THEN SORT OF HAVE A BACKUP BECAUSE IF YOU TAKE A BLOOD SAMPLE
>FROM THE VICTIM AND YOU COMPARE IT TO THE READING YOU GET FROM
THE EPITHELIAL CELLS, YOU HAVE SORT OF A BACK-UP CHECK TO KNOW
THAT YOUR PROCESS IS WORKING CORRECTLY?
A YES. THAT SERVES AS A CHECK.
Q AND THAT IS OF CONSIDERABLE ASSISTANCE IN
INTERPRETING A MIXTURE IN A SEXUAL ASSAULT CASE?
A YES. IT'S HELPFUL.
Q AND IT'S IN SOME WAYS ANALOGOUS TO DOING DNA TESTING
IN A PATERNITY CASE WHERE YOU HAVE BACK-UP SYSTEMS WHERE YOU KNOW
WHAT THE GENETIC -- THE GENOTYPES OF THE FATHER IS AND YOU KNOW
-- OR THE PUNITIVE FATHERS AND YOU KNOW WHAT THE GENOTYPE OF THE
MOTHER IS?
A WELL, THAT'S -- I --
Q LET ME WITHDRAW THAT QUESTION.
LET'S JUST GET TO THE BOTTOM LINE HERE.
WOULD YOU AGREE THAT MIXTURES INVOLVING BLOODSTAINS
>FROM TWO OR THREE OR FOUR CONTRIBUTORS, YOU CAN NOT PERFORM A
DIFFERENTIAL EXTRACTION LIKE YOU CAN IN A SEXUAL ASSAULT CASE?
A THAT'S CORRECT.
Q YOU CAN NOT PUT THAT BLOODSTAIN UNDER A MICROSCOPE
THE WAY YOU CAN IN A SEXUAL ASSAULT CASE AND LITERALLY SEE THE
DIFFERENT KINDS OF CELLS THAT ARE CONTRIBUTING TO THAT MIXTURE?
A THAT'S CORRECT.
Q IF YOU HAVE A MIXTURE OF A BLOODSTAIN AND SALIVA
TOGETHER, YOU CAN NOT LOOK UNDER A MICROSCOPE TO LOOK AT THAT
BLOODSTAIN AND SEE WHAT CELLS COME FROM SALIVA AND WHAT CELLS
COME FROM BLOOD?
A WELL, NOW THAT'S INCORRECT, BECAUSE WHEN YOU'RE
TALKING ABOUT BLOOD AGAINST BLOOD, THAT'S TRUE.
BUT SALIVA, AS YOU MENTIONED EARLIER WHEN WE WERE
TALKING ABOUT SNEEZING, HAS THESE EPITHELIAL CELLS, AND ONE COULD
LOOK UNDER THE MICROSCOPE AND MAKE AN EXTRACT OF A BLOODSTAIN
JUST LIKE ONE WOULD MAKE AN EXTRACT OF A SEMEN STAIN AND LOOK AT
THE MICROSCOPIC CHARAC -- YOU KNOW, THE FEATURES THAT ARE THERE,
AND YOU MIGHT SEE THAT THERE ARE EPITHELIAL CELLS THAT COULD BE
CONTRIBUTED TO SALIVA FOR EXAMPLE.
Q WELL, HAVE YOU EVER DONE THAT?
A I THINK I DID THAT IN ONE CASE. I DON'T RECALL DOING
THAT IN MY DNA WORK, BUT I CAN RECALL DOING SOME KIND OF MICRO
EXAM ON --
FOR EXAMPLE, WE -- IT'S NOT UNUSUAL TO LOOK AT A
BLOODSTAIN WHERE THERE MAY BE A BLOOD AND SEMEN MIX. THAT'S NOT
AN UNUSUAL --
Q SO IT'S --
I'M SORRY. ARE YOU FINISHED?
THE COURT: WAIT. DON'T INTERRUPT, PLEASE.
MR. SCHECK: I DIDN'T MEAN TO INTERRUPT HIM.
THE WITNESS: THAT WOULD NOT BE AN UNUSUAL OCCURRENCE, TO
HAVE A BLOOD SEMEN MIXTURE, AND SO ONE WOULD DO A MICROSCOPIC
EXAM FOR THAT PURPOSE.
Q BY MR. SCHECK: THERE'S NO BLOOD, SEMEN MIXTURE IN
THIS CASE, IS THERE?
A I DIDN'T EXAMINE ANY OF THIS EVIDENCE FOR SEMEN.
Q ALL RIGHT.
AND IN A BLOOD, SEMEN MIXTURE, YOU'RE GOING TO SEE
SPERM CELLS, RIGHT?
A WELL, DEPENDING ON WHETHER OR NOT THE PERSON HAS
SPERM. I MEAN, IT MAY BE A VASECTOMIZED INDIVIDUAL FOR EXAMPLE.
Q WHEN YOU HAVE --
THE COURT: COUNSEL, IT'S REALLY -- LET'S JUST GO BACK TO
THE BLOOD MIXTURES, PLEASE. WE'RE NOT DEALING WITH ANY OTHER
MIXTURE HERE.
MR. SCHECK: THAT'S MY POINT.
Q BY MR. SCHECK: DID YOU EXAMINE UNDER A MICROSCOPE
THE BLOODSTAIN MIXTURE TO DETERMINE WHETHER THERE WAS -- YOU
COULD SEE ANYTHING THAT YOU WOULD ATTRIBUTE TO THE EPITHELIAL
CELLS OF SALIVA VERSUS CELLS FROM BLOODSTAINS?
A NO, I DID NOT DO THAT.
Q ALL RIGHT.
AND YOU'RE ACTUALLY SAYING THAT'S SOMETHING THAT YOU
THINK COULD BE DONE, BUT WASN'T DONE?
A WHAT I'M SAYING IS THAT SOMEONE, IF THEY WANTED TO,
COULD RUN THAT TEST, YES.
Q NOW, BOTTOM LINE, WOULD YOU AGREE THAT AS OPPOSED TO
A SEXUAL ASSAULT CASE WHERE THERE'S A MIXTURE OF SPERM FROM ONE
CONTRIBUTOR, NON-VASECTOMIZED INDIVIDUAL, AND A VAGINAL SWAB FROM
ONE VICTIM, ALL RIGHT, AS OPPOSED TO THAT SITUATION, INTERPRETING
DNA RESULTS FROM BLOODSTAIN MIXTURES WHERE THERE ARE MORE THAN
TWO CONTRIBUTORS, ALL RIGHT, THAT THAT SECOND SITUATION IS A MUCH
MORE CHALLENGING APPLICATION OF THIS TECHNOLOGY?
A WELL, IT'S MORE CHALLENGING IN TERMS OF SAYING WHAT
COULD GO WITH WHOM FOR EXAMPLE. THAT'S TRUE, ALTHOUGH SOMETIMES
EVEN WITH THOSE TYPES OF MIXTURES ON RFLP, YOU MAY BE ABLE TO
SORT SOMETHING LIKE THAT OUT.
Q BUT BOTTOM LINE, THE TWO OR MORE CONTRIBUTOR
BLOODSTAIN MIXTURE, TO USE SIMPLE TERMS, IS HARDER IN TERMS OF
TRYING TO FIGURE OUT WHO ARE THE CONTRIBUTORS?
A I THINK IN GENERAL, THAT'S TRUE, YES.
Q OKAY.
MR. SCHECK: 10:30 IS THE BREAK?
THE COURT: 10:30.
MR. SCHECK: IF I MAY, YOUR HONOR, I WOULD LIKE TO MOVE TO
THE BRONCO BOARD.
THE COURT: MR. HARRIS, YOU WANT TO GIVE MR. SCHECK A HAND
HERE?
(BRIEF PAUSE.)
MR. SCHECK: THIS IS PROSECUTION'S 260.
THE COURT: THANK YOU.
(BRIEF PAUSE.)
Q BY MR. SCHECK: NOW, YOU RECEIVED SWATCHES FROM THE
BRONCO NUMBERED 23, 24, 25, 29, 30, 31 AND 34, CORRECT?
A I BELIEVE THOSE NUMBERS ARE ALL CORRECT. SOME OF
THOSE -- NOW, 23, I DON'T THINK WE ANALYZED FOR EXAMPLE.
Q OH, I'M SORRY.
OKAY. 24, 25, 29, 30, 31 AND 34.
A OKAY.
THE NUMBERS YOU MENTIONED WERE 24, 29 --
Q YEAH. I'M REALLY STARTING FROM THE TOP DOWN TO HERE
TO 34, CORRECT?
A YES.
Q ALL RIGHT.
AND ALL THOSE SAMPLES WERE COLLECTED ON JUNE 14TH?
MR. HARMON: OBJECTION. ASSUMES FACTS NOT IN EVIDENCE.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: DO YOU KNOW IF ALL THOSE SAMPLES,
BASED ON THE WRITINGS THAT YOU RECEIVED, WERE COLLECTED ON JUNE
14TH?
A I DON'T KNOW THAT.
Q ALL RIGHT.
I'M GOING TO ASK YOU TO ASSUME THAT ALL THOSE SAMPLES
WERE COLLECTED ON JUNE 14.
A OKAY.
Q AND YOU RECEIVED ANOTHER SET OF SAMPLES, 303, 304,
305, WHICH WERE SWATCHES FROM THE CONSOLE, CORRECT?
A YES.
Q AND THOSE I'D LIKE YOU TO ASSUME -- WELL, DO YOU HAVE
ANY NOTATIONS ABOUT WHEN THOSE WERE COLLECTED?
A IT WAS MY UNDERSTANDING THAT THEY WERE COLLECTED
LATER. I DON'T KNOW THE EXACT DATE.
Q I'D ASK TO YOU ASSUME THAT THOSE WERE COLLECTED IN
SEPTEMBER.
A OKAY.
Q ABOUT TWO AND A HALF MONTHS AFTER THE FIRST SET OF
SAMPLES THAT WE DISCUSSED WERE COLLECTED.
MR. HARMON: OBJECTION. THAT MISSTATES THE TESTIMONY.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, LET ME -- MAYBE MY MONTH
ESTIMATE IS OFF.
I WOULD ASK YOU TO ASSUME THAT THE FIRST SET OF
SAMPLES THAT WE DISCUSSED UP TO 34 WERE COLLECTED ON JUNE 14TH,
1994, AND THEN THE SECOND SET OF SAMPLES, 303, 304, 305 FROM THE
CENTER OF THE CONSOLE WERE COLLECTED ON SEPTEMBER 1ST, 1994.
MR. HARMON: OBJECTION. MISSTATES -- MISLEADING, YOUR
HONOR. MISSTATES THE TESTIMONY.
THE COURT: LATER. AT A LATER DATE.
MR. SCHECK: WELL, I THINK THAT AUGUST 26TH, THEY WERE
FIRST EXAMINED. SEPTEMBER 21ST -- SEPTEMBER 1ST, THEY WERE
ACTUALLY SWATCHED BY MR. MATHESON.
MR. HARMON: THAT --
MR. SCHECK: EITHER WAY, AUGUST 26TH, SEPTEMBER 1ST.
THE COURT: LATER.
MR. SCHECK: LATER.
Q BY MR. SCHECK: NOW, LOOKING AT THESE SAMPLES, I'D
LIKE YOU -- DO YOU KNOW --
I'D LIKE YOU TO ASSUME THAT NO. 30 THAT'S LABELED
HERE "CENTER CONSOLE" WAS COLLECTED ON JUNE 14TH AND NO. 303 WAS
COLLECTED AT A LATER DATE FROM THE SAME AREA AS 30.
MR. HARMON: OBJECTION. VAGUE AS TO "SAME AREA."
THE COURT: OVERRULED.
Q BY MR. SCHECK: OKAY?
THE COURT: THE JURY'S HEARD THE TESTIMONY AS TO HOW THIS
WAS RECOVERED.
Q BY MR. SCHECK: ARE YOU WITH ME?
A OKAY.
SO YOU'RE TALKING ABOUT THE SAME GENERAL AREA?
Q SAME AREA.
A WELL, NOW, "SAME" TO ME MEANS THE IDENTICAL SPOT.
Q I -- WE COULD ONLY MAKE OUR ASSUMPTIONS BASED ON
TESTIMONY FROM OTHERS, OKAY?
MR. HARMON: OBJECTION. NOT A QUESTION.
Q BY MR. SCHECK: I'D LIKE YOU TO ASSUME --
THE COURT: SUSTAINED.
Q BY MR. SCHECK: -- SAME AREA OF THE CONSOLE.
A AGAIN, WHEN YOU SAY "SAME," HOW SAME ARE THEY I GUESS
IS WHAT I'M --
MR. SCHECK: YOUR HONOR, MAYBE I COULD BREAK AND I'LL GET
SOME PICTURES UP.
Q BY MR. SCHECK: FROM THE SAME STAIN.
MR. HARMON: OBJECTION. THAT MISSTATES THE TESTIMONY.
THE COURT: ALL RIGHT.
LET'S TAKE OUR BREAK NOW, LET YOU LOOK AT THE
PHOTOGRAPHS.
ALL RIGHT.
LADIES AND GENTLEMEN, PLEASE REMEMBER ALL OF MY
ADMONITIONS TO YOU; DON'T 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, DO NOT
ALLOW ANYBODY TO COMMUNICATE WITH YOU WITH REGARD TO THE CASE.
WE'LL STAND IN RECESS FOR 15 MINUTES.
MR. SIMS, YOU MAY STEP DOWN.
MR. SCHECK, WHY DON'T YOU POINT OUT THAT BOARD.
ALL RIGHT.
(RECESS.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: BACK ON THE RECORD. ALL PARTIES ARE AGAIN
PRESENT.
DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
(BRIEF PAUSE.)
THE COURT: MR. SIMS, WHY DON'T WE SAVE SOME TIME, AND
WOULD YOU RETAKE YOUR SEAT ON THE WITNESS STAND.
(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 THAT WE HAVE NOW BEEN REJOINED
BY ALL THE MEMBERS OF OUR JURY PANEL.
GARY SIMS IS AGAIN ON THE WITNESS STAND UNDERGOING
CROSS-EXAMINATION.
MR. SCHECK, YOU MAY CONCLUDE YOUR CROSS-EXAMINATION.
MR. SCHECK: THANK YOU.
Q WHEN WE LAST LEFT WE WERE DISCUSSING AREAS, AS YOU
RECALL.
I WOULD LIKE TO FIRST PUT UP ON THE SCREEN WHAT HAS
ALREADY BEEN MARKED AS DEFENDANT'S 1087, ALL RIGHT?
NOW, MR. SIMS, I DIRECT YOUR ATTENTION TO THE SMEAR
THAT -- THAT YOU SEE WHERE "30" IS IN THIS PHOTOGRAPH?
A YES, I SEE THE POST-IT. IT LOOKS LIKE THERE IS 30.
Q RIGHT. SO STARTING TO -- AS I'M LOOKING AT IT AND
THE JURY IS LOOKING AT IT, ALL RIGHT, THE UPPER LEFT-HAND -- THE
-- FROM THE LEFT GOING DOWNWARD TO THE RIGHT, YOU SEE THAT STREAK
WHERE THE ARROW IS POINTING FROM THERE DOWN TO WHERE THE "30"
IS.
ALL RIGHT?
A YES.
Q ALL RIGHT.
LET'S CALL THAT THE AREA OF 30 AND 303 AS BEING IN
THE SAME AREA.
OKAY?
A JUST, IN OTHER WORDS, WE ARE ASSUMING IT IS RIGHT IN
THAT SAME AREA.
Q IN THAT SAME AREA, OKAY, AND LET ME DIRECT YOUR
ATTENTION TO 31.
A OKAY.
MR. SCHECK: MAYBE WE COULD HAVE THE ARROW GO THERE AS
WELL.
AND -- AND THAT AREA WOULD BE -- STARTING AT THE TOP
IT IS A LITTLE SHADOWED THERE, MOVING VERTICALLY DOWN.
Q OKAY?
A OKAY.
Q AND LET'S ASSUME THAT THAT 31 AREA IS THE SAME AS
304.
AND NOW I WOULD ASK YOU TO LOOK AT ANOTHER PHOTOGRAPH
THAT WE WOULD ASK BE MARKED DEFENDANT'S NEXT IN ORDER AS 1167.
(DEFT'S 1167 FOR ID = PHOTOGRAPH)
THE COURT: ALL RIGHT.
1167 APPEARS TO BE A PHOTOGRAPH OF THE CONSOLE ON
BUTCHER PAPER.
MR. SCHECK: YES.
Q AND I WOULD LIKE YOU TO ASSUME THAT LAST PHOTOGRAPH I
SHOWED YOU, 1087, WAS A PHOTOGRAPH TAKEN ON JUNE 14TH.
A THE ONE YOU JUST SHOWED ME BEFORE?
Q YES, PREVIOUSLY?
A OKAY.
Q NOW, THIS IS A PHOTOGRAPH TAKEN ON SEPTEMBER 1ST.
A OKAY.
Q AND I WOULD LIKE TO -- WHY DON'T YOU ASSUME THAT 306
IS JUST A -- IS A HAIR AND IS NOT A STAIN, OKAY?
A OKAY.
Q AND LOOKING AT THE AREA AGAIN, 303, YOU SEE THE SAME
AREA THAT WE POINTED OUT ON THE JUNE 14TH PHOTOGRAPH STARTING
>FROM THE UPPER LEFT-HAND MOVING TO THE RIGHT, OKAY?
MR. HARMON: OBJECTION. THAT IS VAGUE AND MISSTATES THE
TESTIMONY.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
MR. SCHECK: ALL RIGHT.
Q YOU SEE WHERE THE "303" LABEL IS?
A YES.
Q ALL RIGHT.
I WOULD LIKE YOU TO LOOK AT THE AREA TO THE LEFT OF
303 AND ASSUME THAT IS THE SAME AREA AS 30 ON THE JUNE 14TH
PHOTOGRAPH.
MR. HARMON: OBJECTION, THAT IS VAGUE AND IT MAY BE
INCONSISTENT WITH THE TESTIMONY IN THIS CASE AS IT IS VAGUE, YOUR
HONOR.
MR. SCHECK: I DON'T THINK SO.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: ALL RIGHT.
YOU SEE AN AREA DESIGNATED "303"?
A YES.
Q ALL RIGHT.
YOU SEE AN AREA DESIGNATED "304"?
A YES.
Q ALL RIGHT.
NOW -- YOU SEE AN AREA BELOW
DESIGNATED -- THE BOTTOM OF THAT DESIGNATED "305"?
A YES.
Q ALL RIGHT.
NOW -- NOW, WITH RESPECT -- LOOKING AT THE RESULT
BOARD, 2 --
THE COURT: PEOPLE'S 260.
Q BY MR. SCHECK: THE STAIN COLLECTED AS NO. 30 WHICH
WE HAVE ASKED YOU TO ASSUME WAS DONE ON JUNE 14TH, WHICH I HAVE
ALREADY ASKED YOU TO ASSUME IS THE SAME AREA AS THE -- LET'S JUST
START THIS.
30 COLLECTED ON JUNE 14TH, UMM, YOU HAD A DQ-ALPHA
TYPING OF 1.1, 1.2?
A YES.
Q AND D1S80 TYPING OF 24, 25?
A YES.
Q WHICH YOU SAID EXCLUDED RONALD GOLDMAN?
A YES.
Q AND EXCLUDED NICOLE BROWN SIMPSON?
A YES.
Q AND IT WAS ONLY CONSISTENT WITH MR. SIMPSON?
A WELL, OR SOMEONE WITH HIS TYPE.
Q WITH HIS GENOTYPE?
A YES.
THE COURT: EXCUSE ME, EXCUSE ME.
COUNSEL --
MR. SCHECK: YES.
THE COURT: -- YOU ARE TALKING OVER HIS ANSWER AGAIN. THE
COURT REPORTERS ARE ALMOST IN REBELLION.
MR. SCHECK: I'M SORRY. I'M RUSHING.
Q THE -- LOOKING AT 303, HOWEVER, COLLECTED ON
SEPTEMBER 1ST, DO YOU SEE THAT?
A YES.
Q THERE YOU FOUND ON DQ-ALPHA 1.1, POSSIBLY A 1.2, A
1.3 AND A 4?
A THAT'S CORRECT.
Q AND A D1S80 OF 24, 25 AND 18?
A YES.
Q THEN ON JUNE 14TH, AS FAR AS 31 IS CONCERNED, WHICH
WOULD BE COLLECTED -- 31, YOU RECALL THAT STAIN?
A YES, YES.
Q ALL RIGHT.
ON JUNE 14TH YOU HAVE A 1.1, 1.2 AND WHAT YOU ARE
CALLING A WEAKER 1.3, 4, CORRECT?
A YES.
Q AND A D1S80 OF 24, 25?
A YES.
Q ALL RIGHT.
BUT AS FAR AS ON 304, WHICH I'M ASKING YOU TO ASSUME
WAS COLLECTED FROM THE SAME AREA ON SEPTEMBER 1ST --
MR. HARMON: OBJECTION, "SAME AREA" AS VAGUE. MISSTATES THE
TESTIMONY.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: ALL RIGHT. 304, THE AREA DESIGNATED
304 --
A OKAY.
Q -- HERE YOU HAVE AN ADDITIONAL DQ-ALPHA READING OF --
A D1S80 READING OF 18?
A NOW, THIS IS 304 COMPARED TO --
Q 31.
A 31, YES.
Q AND WHY DON'T WE ASSUME THAT 304 IS FROM THE SAME
GENERAL AREA AS 31.
A NOW, AGAIN I GUESS WE GET INTO NOW THE SAME GENERAL
AREA. I THINK I UNDERSTAND THAT.
Q THE AREA THAT YOU -- THAT WE POINTED TO --
A BUT AGAIN IN VERY BROAD TERMS --
Q YES.
A -- IT IS NOT NECESSARILY THE SAME AREA.
Q AND ON THE 304 STAIN COLLECTED ON SEPTEMBER 1ST, NOW
THE LIST OF PEOPLE NOT EXCLUDED EXTENDS, IN ADDITION TO NICOLE
BROWN?
A YES.
Q AND THEN ON STAIN 305, YOU HAD THE SAME GENOTYPES?
A YES, THAT'S CORRECT, ON 304 AND 305.
Q ALL RIGHT.
NOW --
A ALTHOUGH I WOULD LIKE TO ADD, TOO, THERE WAS A LITTLE
MORE DEFINITION I THINK IN DISCRIMINATING THE MIXTURE ON THE
DQ-ALPHA.
YOU WILL NOTICE IT SAYS WEAKER 1.3, 4, AND ON 305 AS
OPPOSED TO 304. THE SAME ALLELES ARE PRESENT, BUT THERE IS A
LITTLE DISTINCTION THERE AS FAR AS THE PATTERNS.
Q IN YOUR EXAMINATION OF THOSE PHOTOGRAPHS OF THE
SMEARS ON -- STAINS ON JUNE 14TH AND THE PHOTOGRAPHS YOU SAW OF
SEPTEMBER 1ST, COULD YOU TELL WHETHER THERE WAS MORE BLOOD ON THE
CONSOLE ON SEPTEMBER 1ST THAN THERE WAS ON JUNE 14TH, JUST FROM
LOOKING AT THE PHOTOGRAPH?
MR. HARMON: OBJECTION, CALLS FOR SPECULATION AND
INADEQUATE FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, IN YOUR DNA TESTING DID YOU
FIND MORE DNA IN 303 THAN IN 30?
A I WOULD HAVE TO CHECK MY QUANTITATIONS ON THAT. IT
IS 304 VERSUS 3 --
Q 303 VERSUS 30.
A 303 VERSUS 30. GIVE ME ONE MINUTE, PLEASE.
(BRIEF PAUSE.)
THE WITNESS: YES, I HAVE REVIEWED THE NOTES AND I DID FIND
MORE IN 303 THAN 30.
Q BY MR. SCHECK: 30 YOU GOT BY YOUR SLOT-BLOT 2.6
NANOGRAMS?
A YES, SOMETHING LIKE THAT. AGAIN THAT MAY BE AFTER
QUANTITATION, BUT IT IS IN THAT BALLPARK.
Q AND 303, 40.5 NANOGRAMS?
A AGAIN IT IS IN THAT BALLPARK.
Q WITH RESPECT TO 31, SOMETHING ON THE ORDER OF 2.1
NANOGRAMS?
A AGAIN I WOULD LIKE TO CHECK MY NOTES.
Q ON YOUR SLOT-BLOT?
A I'M SORRY, YOU SAID HOW MUCH?
Q 2.1 ON YOUR SLOT-BLOT?
A THAT'S CORRECT, AFTER QUANTITATION.
Q AND 3 -- AS FAR AS 304 IS CONCERNED, 29 NANOGRAMS?
A LET ME CHECK.
(BRIEF PAUSE.)
THE WITNESS: THAT IS ABOUT RIGHT, YES.
Q BY MR. SCHECK: NOW, IN YOUR OPINION, AS A FORENSIC
SCIENTIST, IT IS IMPORTANT TO PRESERVE THE INTEGRITY OF
BIOLOGICAL EVIDENCE WHETHER IT IS FOUND IN AN AUTOMOBILE OR ON A
STREET?
A YES.
Q AND IT IS A GOOD PRACTICE -- WITHDRAWN.
IS IT A GOOD PRACTICE TO PERMIT INDIVIDUALS INTO AN
AUTOMOBILE FOR CLOSE TO -- FOR OVER TWO MONTHS BEFORE SWATCHING
THE INSIDE OF AN AREA FOR BIOLOGICAL MATERIAL?
MR. HARMON: YOUR HONOR, THAT IS ARGUMENTATIVE.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, DO YOU THINK THAT IT WOULD BE A
GOOD PRACTICE, IN YOUR OPINION OF FORENSIC SCIENTISTS, TO PERMIT
A CAR TO BE BURGLARIZED BEFORE YOU GO IN AND SWATCH BIOLOGICAL
MATERIAL FROM THE AREA?
MR. HARMON: OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED, SUSTAINED.
THE JURY IS TO DISREGARD THAT CHARACTERIZATION.
Q BY MR. SCHECK: WELL, DO YOU AGREE THAT CHAIN OF
CUSTODY PRINCIPLES APPLY TO CARS AND THEIR INTERIORS, JUST LIKE
ANY OTHER PIECE OF EVIDENCE?
A YES.
Q NOW, LOOKING JUST AT THE MATERIALS THAT I HAVE ASKED
YOU TO ASSUME WERE COLLECTED ON JUNE 14TH, THAT WOULD INCLUDE 30
AND 31 FROM THE CONSOLE, CORRECT?
A OKAY.
Q AND 29 FROM THE STEERING WHEEL, CORRECT?
A OKAY.
Q NOW, WITH RESPECT TO 31, THERE WAS A PROBLEM, WAS
THERE NOT, WITH THE DQ-ALPHA ANALYSIS
OF THAT STAIN?
A WITH -- NOW, THIS IS WITH REGARDS TO 31?
Q 31.
A I DON'T -- I DON'T THINK THERE WAS A PROBLEM. I
THINK THAT WAS WHAT I WOULD CLASSIFY AS A TOUGH CALL. WE HAD TO
TAKE A HARD LOOK AT IT, BUT I DON'T THINK THERE WAS A PROBLEM
WITH THE ANALYSIS.
Q BEFORE WE EXAMINED WHAT YOU HAVE SAID WAS A TOUGH
CALL, WOULD YOU NOT AGREE THAT WITH RESPECT TO THE SAMPLES THAT
WERE COLLECTED ON JUNE 14TH, THAT THERE IS NO DQ-ALPHA TYPING
RESULTS OF A 1.3 AND A 4, PUTTING ASIDE 31, FROM ANY OF THE
SAMPLES COLLECTED ON JUNE 14TH, BE IT ON THE CONSOLE OR ANY
OTHER PLACE IN THE BRONCO?
A WELL, AS REPRESENTED BY WHAT IS HERE?
Q YES.
A AND THERE IS -- SAY IT AGAIN. THERE IS NO --
Q THERE IS NO DQ-ALPHA TYPING RESULTS OF A 1.3 ALLELE
AND A 4 ALLELE FROM SAMPLES COLLECTED ON JUNE 14TH, BE IT ON THE
CONSOLE OR ANY OTHER PLACE IN THE BRONCO, AND I'M EXCLUDING HERE
31?
A WELL, TO MY KNOWLEDGE ON THOSE SAMPLES THAT'S
CORRECT.
Q OKAY.
NOW, LET'S EXAMINE 31, WHICH YOU HAVE CHARACTERIZED
AS A TOUGH CALL.
A YES.
THE COURT: MR. SCHECK, YOU NEED TO FLIP THAT AROUND.
MR. SCHECK: I'M SORRY.
THE COURT: UNLESS YOU ARE GOING TO USE IT IMMEDIATELY.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: I WOULD ASK THAT THIS BE MARKED DEFENDANT'S
NEXT IN ORDER.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: I SHOW WHAT YOU HAS BEEN MARKED AS DEFENDANT'S
1166.
Q DO YOU RECOGNIZE THAT AS A PHOTOGRAPH OF DQ-ALPHA
STRIPS FOR ANALYSES YOU MADE OF STAINS FROM THE BRONCO?
A THIS, I BELIEVE, IS A PHOTOGRAPH THAT DR. BLAKE TOOK
OF THE --
Q DO YOU HAVE ONE OF YOUR OWN THERE?
A YES, I DO.
Q MAY I SEE THAT?
A (WITNESS COMPLIES.)
Q DO YOU SEE ANY DIFFERENCES BETWEEN THOSE PHOTOGRAPHS?
DO YOU HAVE A PREFERENCE AS TO WHICH ONE WE USE?
A I -- I WOULD HAVE TO LOOK AT IT FOR A MINUTE.
I RECALL DR. BLAKE WAS PRESENT FOR THIS READING. I
DON'T KNOW IF HE TOOK THE PHOTO AT THAT EXACT TIME, BUT I THINK
HE DID.
Q WELL, THE PHOTOGRAPH THAT I SHOWED YOU IS A LITTLE
LARGER, ISN'T IT?
A YES, IT IS AN ENLARGEMENT.
Q WOULD YOU, FOR PURPOSES OF ANALYSIS, AND FOR BEING
ABLE TO SHOW THIS, DO YOU HAVE ANY PROBLEMS, FROM A SCIENTIFIC
POINT OF VIEW, USING THE PHOTOGRAPH I HAVE SHOWED YOU, AND PLEASE
EXAMINE THE TWO OF THEM?
A YES. JUST I WOULD LIKE A SECOND TO EXAMINE IT.
MR. SCHECK: PLEASE DO.
(BRIEF PAUSE.)
THE WITNESS: OKAY.
Q BY MR. SCHECK: OKAY?
A THAT IS OKAY.
Q NOW, MAYBE WHAT WE COULD DO IS YOU COULD HAVE YOUR
PHOTOGRAPH IN FRONT OF US AND WE WILL PUT 1166 ON THE ELMO.
OKAY. NOW --
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
THE COURT: I THINK WE NEED TO BACK OUT JUST A LITTLE.
MR. SCHECK: I THINK FOR -- I THINK FOR OUR PURPOSES
ACTUALLY THIS IS THE RIGHT SHOT.
Q NOW, LET ME CALL YOUR ATTENTION TO WHAT IS MARKED ON
THE RIGHT-HAND SECTION OF THE STRIP, THAT IS CALLED DNA-18.
A OKAY.
Q NOW, THAT IS -- THAT CORRESPONDS TO LAPD ITEM NO. 31?
A YES.
Q ALL RIGHT.
THAT IS THE STRIP WHERE YOUR -- THE ONE THAT UP ARE
CHARACTERIZING AS THE TOUGH CALL, CORRECT?
A YES.
Q AND IN TERMS OF READING THAT STRIP, YOU SEE AT THE
1.3 DOT A LIGHT DOT -- WOULD THAT BE -- HOW WOULD YOU DESCRIBE
THAT? FAINT?
A WELL, I WOULD DESCRIBE IT AS A DOT OF ABOUT EQUAL
INTENSITY TO THE C DOT. WHEN WE TALKED ABOUT HOW IMPORTANT THE C
DOT IS AND THAT INTENSITY WAS SCORED ON THAT DAY, THAT READING AS
C, AND WHAT WE DO WHEN WE DO ONE OF THESE STRIPS IS WE SCORE THE
DOTS IN RELATIONSHIP TO THE C DOT, SO YOU FIRST LOOK AT THE
INTENSITY ON THE C DOT AND YOU CALL THAT C.
IT SOUNDS VERY SIMPLE, BUT ANYWAY, YOU CALL THAT C
AND THEN YOU JUDGE THE RELATIVE INTENSITIES OF THE OTHER DOT, C
PLUS OR C MINUS, AND WE ALSO HAVE A CATEGORY WHERE WE CALL THEM
VERY FAINT OR TRACE, SO THAT WAS SCORED AS A C.
Q WELL, WHEN YOU SCORED IT, YOU SCORED IT AS ABOUT
EQUAL TO THE C DOT, CORRECT?
A YES. IT WAS SCORED AS A C. WHAT WE ARE SAYING IS
ABOUT EQUAL TO THE C DOT.
Q WHAT YOU ARE ACTUALLY SAYING IS THAT YOU FEEL
CONFIDENT THAT IS RIGHT TO THE 1.3 IN WHAT IS LABELED DNA-18,
CORRECT?
A YES.
Q IS LESS -- IS -- IS -- IS AS INTENSE AS THE C DOT?
A YES. AS FAR AS OUR SCORING WAS CONCERNED, WE
CONSIDERED THAT TO BE ABOUT THE SAME INTENSITY AS THE C DOT.
Q COULD A REASONABLE SCIENTIST LOOK AT
THAT AND SAY MAYBE IT IS A LITTLE LESS INTENSE THAN THE C DOT?
MR. HARMON: OBJECTION, CALLS FOR SPECULATION.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WELL, WOULD YOU AGREE THAT THE
SCORING OF A DOT THAT FAINT IS SUBJECTIVE?
A I DON'T -- I DON'T THINK IT IS REALLY SUBJECTIVE IN
THE SENSE THAT WE ARE MAKING AN OBJECTIVE JUDGMENT ABOUT THAT
INTENSITY.
WE ARE ALSO HAVING A SECOND PERSON READ IT, SO I
DON'T -- I DON'T THINK IT IS -- IT IS SUBJECTIVE.
I WOULDN'T USE THAT DEFINITION.
Q WELL, THE --
A WE FELT IT WAS PRESENT.
Q NOW, THIS WOULD BE ONE OF THOSE SITUATIONS WHERE THE
C DOT COULD BE LIT UP BY THE PRIMARY CONTRIBUTOR?
A THAT'S CORRECT.
Q AND THE C DOT IS NOT NECESSARILY INDICATING ANYTHING
ABOUT WHETHER YOU ARE MISSING DOTS OR ALLELES FROM OTHER
CONTRIBUTORS?
A I CAN ONLY CALL WHAT I SEE.
Q RIGHT.
NOW, I CALL YOUR ATTENTION TO -- IF WE COULD MOVE THE
-- DOWN A LITTLE BIT -- TO THE LANE THAT IS QC 816.
A OKAY.
Q NOW, THAT IS THE QUALITY CONTROL SAMPLE THAT YOU RUN?
A YES.
Q AND I REALIZE THAT IT IS HARD TO SEE ON THE ELMO, BUT
LOOKING AT THE ACTUAL PHOTOGRAPH OF THE DOT-BLOT THAT YOU HAVE --
A YES.
Q -- AND LOOKING AT YOUR OWN SCORING OF THIS, AT THE
1.3 DOT YOU SEE A HINT OR A TRACE --
A YES.
Q -- OF AN ALLELE?
A THE -- THE -- YES, I THINK ON THE -- ON THAT
PARTICULAR SCORING, THE FIRST READER CALLED IT
A HINT. I CALLED IT AN OUTLINE, WHICH MEANS IT IS EVEN -- IN MY
MIND EVEN WEAKER THAN JUST A HINT, BUT IT IS DEFINITELY A VERY,
VERY, VERY FAINT READING.
Q BUT THAT IS ON --
A ON THE ELMO, I DON'T -- I DON'T EVEN THINK YOU CAN
REALLY SEE THAT.
Q IT IS HARD TO -- YOUR HONOR, WE ARE GOING TO REVIEW
THIS AND THEN WE ARE GOING TO SHOW THE ACTUAL PHOTOGRAPH TO THE
JURY. IT CAN'T BE SEEN THE OTHER WAY.
THE COURT: BUT YOU NEED TO STOP TALKING AT THE SAME TIME.
MR. SCHECK: OKAY.
Q NOW, LET ME MOVE YOU DOWN TO THE POSITIVE CONTROL.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: LET ME MOVE BACK A SECOND, AND COULD YOU, MR.
HARRIS -- ACTUALLY, FIRST MOVING BACK TO -- IF YOU GO UP TO
DNA-18 --
THE WITNESS: OKAY.
MR. SCHECK: COULD YOU PUT AN ARROW BY THE 1.3 DOT THERE.
UP, FURTHER UP. RIGHT THERE, (INDICATING), UNDERNEATH THAT.
Q THAT IS THE 1.3 THAT YOU ARE CALLING IN LAPD ITEM 31,
CORRECT?
A YES.
MR. SCHECK: OKAY.
NOW, LET'S MOVE DOWN -- TAKE THE ARROW DOWN TO THE QC
816 AND PUT IT UNDERNEATH THE 1.3 DOT.
THAT IS THE 1.3 DOT THAT YOU SAY -- ONE READER SCORED
AS A HINT AND YOU SCORED AS AN OUTLINE ON YOUR QUALITY ASSURANCE
SAMPLE 816, CORRECT?
A YES.
MR. SCHECK: ALL RIGHT.
NOW, LET'S MOVE DOWN A LITTLE FURTHER
ON -- WE GOT TO PRINT THAT. OKAY.
THE COURT: MAY I SEE YOUR PHOTO, MR. SIMS?
(BRIEF PAUSE.)
Q BY MR. SCHECK: NOW, MOVING DOWN TO THE NEXT -- YOU
SEE WHERE IT SAYS "POSITIVE CONTROL"?
A YES.
Q ALL RIGHT.
NOW, THE POSITIVE CONTROL IS THE SAMPLE THAT YOU RUN
IN EVERY STRIP, CORRECT, EVERY RUN?
A YES.
Q AND THAT IS SUPPOSED TO BE JUST A 1.1, 4?
A THAT'S CORRECT.
Q AND THE POSITIVE CONTROL IN THIS CASE WAS SCORED AS
HAVING A HINT OR A TRACE OF THE 1.3 DOT?
A WELL, AGAIN LET ME LOOK AT THE ACTUAL NOTES.
(BRIEF PAUSE.)
THE WITNESS: YES, THAT WAS SCORED AS A HINT.
MR. SCHECK: ALL RIGHT. COULD WE PRINT THAT AS WELL.
Q OKAY.
NOW, IN YOUR PROTOCOL YOU HAVE A SECTION THAT DEALS
WITH WHAT'S KNOWN AS THE ALLELIC CONTROL?
A YES.
Q AND THE ALLELIC CONTROL IN THIS CASE WOULD BE WHAT'S
KNOWN AS THE POSITIVE CONTROL ON THIS RUN?
A WELL, IN THIS -- IN THIS PARTICULAR CASE. IN OTHER
WORDS, WHERE WE KNOW THE TYPE, YES, THAT IS THE CONTROL FOR THAT.
Q WOULD YOU EVEN SAY THAT THE QUALITY CONTROL SAMPLE,
816, WOULD ALSO BE CONSIDERED AN ALLELIC CONTROL FOR THIS RUN?
A WELL, NO. I WOULD CONSIDER THAT A BLIND BECAUSE WE
DON'T KNOW -- THE ANALYST DOES NOT KNOW WHAT THE CORRECT TYPE OF
THAT SAMPLE IS, SO IN OTHER WORDS, WE HAVE TO MAKE A
DETERMINATION AND THEN WE SUBMIT THAT FOR REVIEW TO SEE WHETHER
OR NOT WE MADE THE RIGHT CALL.
Q SO -- SO IN OTHER WORDS, IN YOUR PROTOCOL, WHEN THE
TERM "ALLELIC CONTROL" IS USED,
IT IS ONLY REFERRING TO THE POSITIVE CONTROL, NOT TO QC 816?
A WELL, I THINK YOU ARE TALKING THE PROTOCOL NOW OR THE
QUALITY ASSURANCE --
Q THE PROTOCOL?
A I DON'T THINK WE USE THE TERM "ALLELIC CONTROL" ON
THE PROTOCOL. CAN YOU SHOW ME SPECIFICALLY?
Q YES. DO YOU HAVE YOUR PROTOCOL THERE?
A IF YOU HAVE A COPY, I WOULD APPRECIATE IT.
Q I SURE DO. THAT WOULD MAKE IT FASTER.
AND THIS, MR. HARMON, IS AT PAGE 2119 OF THE
MATERIALS. IT IS PAGE 92 OF YOUR PROTOCOL AND IT IS ENTITLED
"CONTROLS FOR PCR ANALYSIS."
A OKAY.
THIS IS WHERE WE HAD A MISUNDERSTANDING BECAUSE THIS
IS THE QUALITY ASSURANCE MANUAL. THIS IS NOT THE DQ-ALPHA
PROTOCOL.
Q OKAY.
A THAT IS THE DISTINCTION.
Q I'M SORRY, IN YOUR QUALITY ASSURANCE MANUAL YOU HAVE
A SECTION THAT DEALS WITH ALLELIC CONTROLS?
A YES.
Q AND THE ALLELIC CONTROLS WOULD BE REFERRING TO
CERTAINLY THE POSITIVE CONTROL HERE?
A YES.
Q AND WOULD IT ALSO BE -- WOULD YOU ALSO CONSIDER QC
816 AN ALLELIC CONTROL?
A I -- I WOULDN'T USE THAT DEFINITION FOR IT, BUT IT IS
ONE OF THE CONTROLS WE RUN. AGAIN, IT IS BLIND, SO YOU CAN'T --
THE ANALYST DOESN'T KNOW THE CORRECT TYPE, SO THE ANALYST CAN'T
USE THAT INFORMATION TO SAY, YES, THIS TEST IS WORKING PROPERLY
AND THAT IS WHAT A CONTROL IS. THAT COMES LATER WITH A REVIEW.
Q ALL RIGHT.
SO JUST DEALING WITH THE POSITIVE CONTROL THEN, IN
YOUR PROTOCOL -- YOU RELY ON THIS ALLELIC CONTROL SECTION OF THE
PROTOCOL, DO YOU NOT?
A YES, I DO.
Q OKAY.
AND IN THE ALLELIC CONTROL SECTION OF YOUR PROTOCOL
DOES IT NOT STATE:
"THIS SAMPLE" AND HERE WE WILL BE TALKING ABOUT
THE POSITIVE CONTROL THAT IS DEPICTED ON THE ELMO -- "IS A
POSITIVE CONTROL THAT ENSURES THAT THE AMPLIFICATION AND TYPING
PROCESS ARE WORKING PROPERLY. TO CONTROL FOR DIFFERENTIAL
AMPLIFICATION THE ALLELIC CONTROL SHOULD INCLUDE AN ALLELE THAT
IS SENSITIVE TO AMPLIFICATION CONDITIONS IN THIS SYSTEM. FOR
DQ-ALPHA A TYPE 1.1, 4 CONTROL IS TO BE AMPLIFIED WITH EACH
AMPLIFICATION RUN AND TYPED WITH EACH SET TYPE," CORRECT?
A THAT'S CORRECT.
Q ALL THAT IS SAYING IS THAT THAT ALLELIC CONTROL IS
WHAT IS KNOWN AS THE POSITIVE CONTROL HERE, CORRECT?
A YES.
Q AND THEN AT THE END OF THIS SECTION OF YOUR PROTOCOL
IT GOES ON TO STATE:
"IF THE ALLELIC CONTROL FAILS TO GIVE THE CORRECT
RESULT, THE ANALYSIS MUST BE REPEATED."
A THAT'S CORRECT.
Q AND IN THIS INSTANCE THE ALLELIC CONTROL HAD SHOWED
EVIDENCE OF A 1.3 DOT, DID IT NOT?
A NO. I WOULD SAY IT SHOWED THAT THERE WAS A
CROSS-HYBRIDIZATION, VERY FAINT, AT THAT PARTICULAR LOCATION OR
AT LEAST A HINT OF IT.
Q DID IT NOT SHOW THE 1.3 DOT LIGHTING UP AT SOME
INTENSITY?
A AT THAT VERY LOW LEVEL OF INTENSITY, YES, THERE WAS
SOMETHING THERE.
Q AND IT SHOWED THE 1.3 DOT ALSO LIT UP ON YOUR QUALITY
CONTROL SAMPLE 816?
A WELL, AGAIN, I THINK WHEN YOU SAY, "LIT UP," IN OTHER
WORDS, DO WE SEE A HINT OF ACTIVITY THERE? YES, WE DO.
Q OKAY.
WOULD YOU NOT AGREE THAT WITH RESPECT TO THE SAMPLE
31 OR YOUR DNA-18, THAT THE 1.3 DOT IN THAT SAMPLE IS ALSO
CERTAINLY FAINT?
A WELL, I THINK -- I THINK YOU ARE MISSTATING THE
INTERPRETATION OF THESE BANDS.
Q WELL, MAYBE --
A OR THESE STRIPS BECAUSE --
MR. SCHECK: YOUR HONOR, I MOVE TO STRIKE THIS ANSWER AS
NOT RESPONSIVE. I ASKED HIM A SIMPLE QUESTION.
MR. HARMON: EXCUSE ME, YOUR HONOR.
THE COURT: NO, NO, NO. DON'T INTERRUPT THE ANSWER.
MR. SCHECK: I ASKED HIM IF IT WAS FAINT. THAT IS ALL I
ASKED HIM.
THE COURT: IS IT FAINT?
THE WITNESS: I WOULDN'T SCORE THAT AS FAINT, NO.
MR. SCHECK: ALL RIGHT.
MR. HARMON: CAN HE EXPLAIN?
THE COURT: HE WILL BE ALLOWED TO AND I'M SURE YOU WILL ASK
HIM.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: THE LAST PRINTOUT IS 1166-B.
THE COURT: FINE.
(DEFT'S 1166-B FOR ID = PHOTOGRAPH W/ARROWS)
Q BY MR. SCHECK: NOW, AS FAR AS 1166 IS CONCERNED,
COULD YOU PLEASE -- YOUR HONOR, SINCE THESE ARE FAINT, I WOULD
LIKE THE JURY TO SEE THEM.
COULD WE MARK ON THE LANE THAT IS DNA-18 WITH AN
ARROW, JUST POINT AN ARROW THERE AND
INDICATE -- AND AFTER THAT INDICATE "1.3.".
A (WITNESS COMPLIES.)
Q AND THEN ON THE SAMPLE 816, THE QUALITY CONTROL,
COULD YOU PUT AN ARROW THERE AND INDICATE -- WRITE DOWN "1.3."
MR. HARMON: EXCUSE ME, YOUR HONOR. I OBJECT TO HIM
WRITING THINGS DOWN THAT AREN'T THERE.
MR. SCHECK: NO, NO. IT IS JUST AN ARROW MARKING WHAT TO
LOOK AT.
THE COURT: THAT IS FINE.
MR. SCHECK: GO AHEAD. WOULD YOU PLEASE MARK "1.3."?
THE WITNESS: WELL, WHY WOULD I MARK 1.3 WHEN I DIDN'T MAKE
A DETERMINATION THAT THERE IS 1.3?
MR. SCHECK: I AM ONLY ASKING YOU TO MARK 1.3.
THE COURT: DIRECTING YOUR ATTENTION TO THAT LOCATION.
THE WITNESS: OKAY.
Q BY MR. SCHECK: THEN ON THE POSITIVE CONTROL OR THE
ALLELIC CONTROL COULD YOU MARK THE "1.3."
A (WITNESS COMPLIES.)
YES, I HAVE DONE THAT.
MR. SCHECK: YOUR HONOR, COULD I PASS THIS TO THE JURY?
THE COURT: MAY I SEE THAT?
MR. SCHECK: SURE.
THE COURT: I THINK WE NEED TO DO THAT WITHOUT THE POST-ITS
AS WELL.
(BRIEF PAUSE.)
MR. HARMON: COULD WE TAKE A LOOK AT IT, TOO, YOUR HONOR?
THE COURT: SURE.
(BRIEF PAUSE.)
MR. HARMON: I HAVE AN OBJECTION. HE HAS WRITTEN SOMETHING
DOWN THAT IS NOT THERE.
THE COURT: OVERRULED. IT IS MERELY TO DIRECT THE VIEWER'S
ATTENTION TO THAT LOCATION.
PROCEED.
MR. SCHECK: ACTUALLY MR. HARMON MISSTATES. HE SAYS THERE
IS SOMETHING THERE.
THE COURT: EXCUSE ME, COUNSEL. I DIDN'T ASK FOR A
COMMENT.
MR. SCHECK: ALL RIGHT.
THE COURT: PROCEED. HAND THE EXHIBIT TO JUROR NO. 1,
PLEASE.
Q BY MR. SCHECK: SO YOU WOULD AGREE, MR. SIMS, THAT IN
TERMS OF --
THE COURT: EXCUSE ME, COUNSEL. DO YOU HAVE MY PERMISSION
TO ASK ANOTHER QUESTION BEFORE YOU HAND --
MR. SCHECK: NO. MY APOLOGIES.
(THE EXHIBIT WAS PASSED AMONGST
THE JURORS.)
MR. SCHECK: YOUR HONOR, I HAVE BEEN INFORMED, FOR THE
RECORD, I SHOULD SAY 1166-A IS A PRINTOUT.
(DEFT'S 1166-A FOR ID = PHOTO W/ARROWS)
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEPUTY DISTRICT ATTORNEY
AND DEFENSE COUNSEL.)
MR. SCHECK: YOUR HONOR, WHILE THE JURY IS LOOKING AT IT,
MAYBE WE CAN SAVE SOME TIME BY APPROACHING ON ANOTHER EXHIBIT
THAT I HAVE SHOWN YOU.
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WHAT IS UP?
MR. SCHECK: I GAVE MR. HARMON, BEFORE THE BREAK, A
PROPOSED CHART THAT LISTS THE COMBINATIONS OF GENOTYPES THAT CAN
OCCUR BETWEEN TWO PEOPLE WHEN YOU COMBINE IT WITH MR. SIMPSON'S
GENOTYPE ON THE DQ-ALPHA SYSTEM IN STAIN 305.
IN OTHER WORDS, IT IS LITERALLY JUST A LIST OF ALL
THE POSSIBLE GENOTYPES.
AND I WANTED TO USE THAT WITH THE WITNESS, AND I GAVE
IT TO MR. HARMON. THE WITNESS HAS LOOKED AT IT. HE HAS EVEN
MADE SOME NOTES ON THIS PARTICULAR COPY.
AND I THOUGHT WHILE THE JURY WAS LOOKING AT THE
PHOTOGRAPH, IF MR. HARMON HAS ANY OBJECTIONS TO IT, WE COULD GET
THOSE OUT OF THE WAY.
MR. HARMON: I THINK MR. SIMS DISAGREES THAT THAT, BASED ON
-- THIS IS WHERE WE GET INTO THE WHOLE MIXTURE BUSINESS. HE
DISAGREES, BASED ON HIS RESULTS FROM 305, THAT THE LIST IS AS
FULL AS THAT LIST IS.
AND SINCE HE IS THE ONLY ONE IN THE CHAIR, THAT IS
THE OBJECTION. IT IS MISLEADING.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
MR. SCHECK: WELL, THE -- THE -- THIS IS A VERY SIMPLE SET
OF ALTERNATIVES. THAT IS TO SAY THAT CALLS WERE MADE ON THE
PRESENCE OF MR. SIMPSON'S GENOTYPE, THE 1.1, 1.2.
AND ON THEIR BOARD THEY LIST, YOU KNOW, THE GENOTYPES
PRESENT THAT ARE CONSISTENT WITH VARIOUS INDIVIDUALS, AND ALL
THAT THIS LIST DOES IS TAKE THE ALTERNATIVE COMBINATIONS THAT ONE
CAN HAVE IF YOU STARTED WITH A 1.1, 1.2 AND ASSUME THAT THIS IS
THERE AND THEN LOOK AT ALL THE OTHER DIFFERENT POSSIBLE
COMBINATIONS.
THIS IS EXACTLY WHAT WE DID WITH DR. COTTON BEFORE,
SO I JUST WANTED TO, SINCE IT IS A LONGER LIST THAN THE ONE WE
USED BEFORE AND IT WOULD SAVE TIME TO HAVE ALL OF THEM PRINTED
OUT, I JUST DID THAT.
I MEAN, I DON'T THINK IT IS IN ANY WAY EXCEPTIONAL,
THAT JUST AS A SHEAR MATHEMATICAL CALCULATION, THOSE ARE ALL THE
POSSIBILITIES.
MR. HARMON: THE ONLY PROBLEM, HE IS NOT A SHEAR
MATHEMATICIAN; HE'S A FORENSIC SCIENTIST.
RELATIVE INTENSITIES OF DOING STRIP DOTS AND D1S80
BANDS AND HE INTERPRETS THESE THINGS.
MR. COCHRAN: JUROR NO. 11 HAS IT NOW.
THE COURT: ALL RIGHT.
MR. HARMON: AND SO IT IS NOT -- IF THEY WANT TO CALL THE
WITNESS, THAT IS INACCURATE BASED ON MR. SIMS' REVIEW OF THE
ACTUAL DATA, NOT JUST BLINDLY HIM SETTING UP ALL THE
POSSIBILITIES, BECAUSE THAT IS NOT WHAT THESE FORENSIC SCIENTISTS
HAVE DONE.
THE COURT: WELL, AT THIS POINT, MR. SCHECK, WHY DON'T YOU
SEE IF YOU CAN LAY A FOUNDATION FOR MR. SIMS' ABILITY TO TELL US
WHAT THE POSSIBLE COMBINATIONS ARE.
MR. SCHECK: OKAY.
MR. COCHRAN: JUDGE --
THE COURT: THE OTHER PROBLEM I HAVE WITH THIS IS THAT YOU
NEED TO STATE WHAT THE BEGINNING COMBINATION IS BEFORE --
MR. COCHRAN: CAN I SAY SOMETHING ON AN UNRELATED MATTER,
ON A DIFFERENT MATTER?
THE COURT: YES.
MR. COCHRAN: WITH REGARD TO THE BRONCO -- TO THE BRONCO --
TO THE BRONCO AND THE CHAIN OF CUSTODY OF THE BRONCO, SUBJECT TO
-- CAN HE MAKE AN OFFER OF PROOF WHAT HE EXPECTS THE EVIDENCE TO
SHOW WITH MERAZ AND OTHERS AND PEOPLE GETTING IN AND OUT SO THAT
WE CAN ASK THOSE QUESTIONS SUBJECT TO LINKING UP?
THE COURT: NO. HE GOT HIS CHAIN OF CUSTODY QUESTION IN
AND OUT, BUT HE WAS MAKING A -- HIS QUESTION WAS ASSUMING CERTAIN
LEGAL IMPLICATIONS THAT WEREN'T THERE.
MR. SCHECK: YOU MEAN THAT WAS A BAD WORD?
THE COURT: IT IS NOT A BURGLARY UNDER CALIFORNIA LAW.
MR. COCHRAN: TRESPASS WOULD BE A BETTER WORD.
THE COURT: NO. WE HAVE A VERY SPECIFIC STATUTORY
DEFINITION OF AUTO BURG.
MR. COCHRAN: TWO OF US AREN'T TALKING.
SO CAN HE THEN REPHRASE THAT AND PUT IT IN A
DIFFERENT CONTEXT OTHER THAN --
THE COURT: I THINK WE HAVE ALREADY GONE THROUGH THAT, MR.
COCHRAN.
MR. COCHRAN: I THOUGHT YOU DID ALLOW THE QUESTION WITH
REGARD TO -- YOU STRUCK THE THING -- YOU SUSTAINED THE OBJECTION
REGARDING BURGLARY. YOU ALLOWED THE QUESTION REGARDING CHAIN OF
CUSTODY, BUT I THOUGHT HE MIGHT BE ABLE TO USE -- INSTEAD OF
USING THE WORD "BURGLARY," THERE SEEMS TO BE ONE MORE QUESTION
THAT MIGHT BE APPROPRIATE.
THE COURT: WE HAVE SPENT ENOUGH TIME ON THAT.
MS. CLARK: WHILE WE ARE UP THERE AND WAITING FOR THE JURY
TO DO THEIR THING, MR. COCHRAN AND I WANTED TO ADDRESS THE COURT
ON THE MATTER OF THIS WEEKEND, THE TIMING, WHAT DAY, IF ANY, WAS
GOING TO BE TAKEN OFF. TUESDAY?
MR. COCHRAN: CAN WE SEE YOU RIGHT AT THE BEGINNING OF
LUNCH?
THE COURT: NO, NO, I DON'T HAVE TIME.
WELL, GIVEN THE JURY'S DESIRE TO WORK ON A FULL DAY
SATURDAY, WE ARE JUST GOING TO --
MR. COCHRAN: HALF DAY SATURDAY.
THE COURT: WE ARE GOING TO BREAK AT NOON ON THE 26TH AND
RECONVENE AT NINE O'CLOCK ON THE 30TH.
MS. CLARK: WHICH IS TUESDAY?
MR. COCHRAN: TUESDAY.
MS. CLARK: WHICH MEANS NO DAY OFF?
THE COURT: CAN'T DO IT. CAN'T DO IT.
MR. COCHRAN: OFF THE RECORD.
(DISCUSSION HELD OFF THE RECORD.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: MR. SCHECK, WOULD YOU RETRIEVE THAT ITEM.
MR. SCHECK: THANK YOU, YOUR HONOR.
(BRIEF PAUSE.)
THE COURT: PROCEED.
Q BY MR. SCHECK: SO WE ARE CLEAR, MR. SIMS, YOUR
POSITION IS THAT THE POSITIVE CONTROL AND THE QUALITY CONTROL --
WITHDRAWN.
THAT THE POSITIVE ALLELIC CONTROL DID NOT FAIL TO
GIVE THE CORRECT RESULT IN THIS CASE AND THEREFORE YOU DID NOT
HAVE TO REDO THIS ANALYSIS?
A YES. THERE WERE SOME OTHER ONES IN THIS CASE WHERE I
DID REDO THEM, BUT IN THIS CASE, NO, I FELT THAT WAS THE CORRECT
RESULT AND I WAS CONFIDENT OF THE INTERPRETATIONS THAT WERE MADE
FOR ALL THESE STRIPS.
Q AND THAT IS BECAUSE YOU DIDN'T THINK THAT THE 1.3 DOT
WAS LIGHTING UP INTENSELY ENOUGH TO CAUSE YOU TO REDO THE
HYBRIDIZATIONS HERE?
A THAT'S CORRECT.
Q AND IF THE 1.3 DOT WAS LIGHTING UP DUE TO SOME KIND
OF 1.3 CONTAMINANT, LIKE A PCR CARRY-OVER CONTAMINANT IN YOUR
LABORATORY, THAT WOULD BE A PROBLEM WITH RESPECT TO INTERPRETING
ITEM NO. 31 AND THE 1.3 DOT IN THAT STRIP?
A WELL, IN OTHER WORDS, IF THERE WERE CONTAMINATION
>FROM PRODUCT, I WOULD EXPECT THAT THERE WOULD BE -- MORE LIKELY
YOU WOULD SEE IT ACROSS THAN IN SOME OF THE OTHER SAMPLES, THE
CONTROLS, TOO.
I DON'T THINK THAT THE CONTAMINATION WOULD
NECESSARILY PICK OUT THAT ONE SAMPLE ON 31, FOR EXAMPLE.
Q WELL, IF THE -- YOU SEE A 1.3 ALSO ON
QC 816, AS WELL AS THE POSITIVE CONTROL?
A WELL, AGAIN, I DIDN'T SAY WE SAW A 1.3. THERE IS A
FAINT INDICATION DOWN THERE OF 1.3. I BELIEVE WE SAID IT WAS
SCORED AS A HINT OF ACTIVITY, BUT THAT IS NOT TO SAY THAT THE 1.3
ALLELE IS THERE, BECAUSE THIS 1.3 ALLELE, AS MENTIONED IN THE
USER GUIDE, IT IS IN THE FORENSIC LITERATURE, THAT'S CORRECT,
THAT SOMETIMES YOU CAN GET A FAINT RESPONSE OF THE 1.3.
Q NOW, TO PUT IT IN TERMS THAT WE DISCUSSED BEFORE, YOU
ARE SAYING THAT THE 1.3 IN THE POSITIVE CONTROL AND IN QUALITY
CONTROL SAMPLE 816 IS AN ARTIFACT?
A YES. I BELIEVE IT IS AN ARTIFACT.
Q OR TO PUT IT IN ANOTHER -- MORE DIRECT TERMS THAT WE
USED BEFORE, IT IS NOT REAL?
A IT DOESN'T SIGNIFY THAT THE 1.3 ALLELE IS TRULY
THERE.
Q BUT YOU ARE SAYING THAT THE 1.3 IN ITEM 31 YOU FEEL
CONFIDENT IS REAL?
A YES.
MR. SCHECK: ALL RIGHT.
NOW, WHY DON'T WE LOOK AT A STRIP THAT I WOULD ASK TO
HAVE MARKED AS NEXT IN ORDER. WHAT WOULD THAT BE?
THE COURT: 1168.
MR. SCHECK: 1168.
(DEFT'S 1168 FOR ID = PHOTOGRAPH)
Q BY MR. SCHECK: AND THIS IS NOW A PHOTOGRAPH OF
DQ-ALPHA TYPES THAT YOU MADE ON SOME OF THE BUNDY DROPS?
A THIS IS -- SAY IT AGAIN, PLEASE.
Q THIS IS A PHOTOGRAPH -- THAT IS A PHOTOGRAPH OF
HYBRIDIZATION STRIPS FOR THE BUNDY DROPS, SOME OF THE BUNDY
DROPS?
A WELL, ONE OF THE BUNDY DROPS IS REPRESENTED HERE, BUT
THEN THE OTHER SAMPLES I BELIEVE ARE ALL BUNDY DROP CONTROLS.
Q OKAY. AND THE --
A SUBSTRATE CONTROLS.
Q SORRY.
AND THE BUNDY DROP IN QUESTION THERE IS WHAT WE HAVE
BEEN CALLING ITEM NO. 52?
A YES. IT IS OUR NO. 55-A.
Q AND ITEM NO. 52 IS THE BUNDY DROP THAT YOU WERE
SAYING WAS DEGRADED BUT IN YOUR JUDGMENT NOT SUBSTANTIALLY
DEGRADED?
A THAT IS MY UNDERSTANDING, YES, OF THE RFLP THAT WAS
OBTAINED ON THAT.
Q ALL RIGHT.
AND THIS IS THE BUNDY DROP THAT YOU WOULD SAY HAS THE
DNA -- HAS DNA IN ITS BEST SHAPE OUT OF ALL THE OTHER BUNDY DROPS
IN TERMS OF DEGRADATION?
A WELL, AS OPPOSED TO, FOR EXAMPLE, THE REAR GATE?
Q NO, I'M TALKING ONLY ABOUT THOSE SAMPLES COLLECTED ON
JUNE 13TH.
A THAT IS MY UNDERSTANDING, YES, THAT 52 -- OF THE ONES
THAT I KNOW OF, THAT'S THE ONE.
MR. SCHECK: ALL RIGHT.
NOW, I WOULD LIKE TO PUT THIS ON THE ELMO, YOUR
HONOR.
THE COURT: ALL RIGHT.
(BRIEF PAUSE.)
MR. SCHECK: I WOULD LIKE TO GO TIGHT IF WE COULD TO WHAT
IS DNA-55 A.
THE COURT: MR. SCHECK, DO YOU WANT TO GIVE MR. HARRIS SOME
DIRECTION HERE? I THINK WE ARE MISSING PART OF IT HERE.
MR. SCHECK: YES, YOUR HONOR. I THINK IN TERMS OF THE ITEM
OF INTEREST WE ARE FOCUSED IN THE AREA THAT WE NEED TO BE.
THE COURT: WELL, WHY DON'T WE SEE THE WHOLE THING.
MR. SCHECK: LET'S SEE THE WHOLE THING. PULL BACK.
Q LOOKING AT 55-A, THAT IS THE STRIP THAT IS THE
ANALYSIS OF ITEM 52, CORRECT?
A WELL, THIS IS ONE OF THE STRIPS ON WHICH IT WAS
ANALYZED, YES.
Q THIS IS THE FIRST ANALYSIS YOU MADE?
A YES.
Q ALL RIGHT.
AND UMM, THIS IS THE ONE THAT YOU TYPED AS A 1.1,
1.2?
A YES. ULTIMATELY THE CALL ON THAT SAMPLE WAS 1.1,
1.2.
Q AND DID YOU NOT CALL A 1.3 ON THIS SAMPLE?
A WELL, AGAIN LET ME -- LET ME REFER TO THE ACTUAL
NOTES PAGE.
(BRIEF PAUSE.)
THE WITNESS: THAT -- THAT PARTICULAR SAMPLE WAS -- WAS
SCORED AS A C MINUS TRACE, THAT PARTICULAR DOT.
Q BY MR. SCHECK: WELL, IN OTHER WORDS, YOUR -- THE
SCORE THAT YOU MADE WAS 1.1, 1.2?
A YES. AT THAT TIME THAT WAS THE SCORE THAT WAS MADE
AT THAT TIME.
Q AND THE 1.3 DOT YOU DID NOT SCORE AS REAL?
A THAT'S -- THAT'S CORRECT.
MR. SCHECK: ALL RIGHT.
NOW, MR. HARRIS, COULD YOU GO CLOSER ON THAT 1.3 DOT.
(BRIEF PAUSE.)
Q BY MR. SCHECK: NOW, THERE ARE -- YOU DO, HOWEVER, IN
YOUR SCORING, INDICATE THAT YOU DO SEE THE 1.3 DOT AS A TRACE?
A YES. IT IS CALLED A C MINUS TRACE.
Q ALL RIGHT.
BUT YOU ARE SAYING THAT THAT 1.3 DOT IS NOT REAL; IT
IS AN ARTIFACT?
A WELL, I'M SAYING THAT IN THE CONTEXT
OF -- THIS TEST WAS REPEATED BECAUSE WE WERE CONCERNED WITH THE
INTERPRETATION OF THAT PARTICULAR RESULT.
Q WE WILL GET TO THE REPETITION IN A SECOND, BUT THIS
CALL, EVEN ON THE FIRST RUN, BEFORE YOU REPEATED IT, YOU SCORED
IT AS A 1.1, 1.2 AND YOU DID NOT SCORE THE 1.3 AS REAL?
A WELL, WE DIDN'T REPORT ANYTHING AT THIS POINT. THERE
IS NO REPORT WAS ISSUED UNTIL WE DID THE ADDITIONAL TESTING ON
THIS SAMPLE.
Q YOU HAVE A SCORING SHEET?
A YES.
Q IN YOUR SCORING SHEET YOU AND THE SECOND READER
SCORED IT A 1.1, 1.2 AND YOU SAID THERE WAS A TRACE OF A 1.3, BUT
YOU DID NOT CALL THE 1.3 AS REAL?
A WELL --
Q AT THAT POINT?
A AT THAT PARTICULAR POINT THAT'S TRUE.
Q AND -- OKAY.
YOUR HONOR, I WOULD ASK THAT -- BECAUSE OF THE
VISIBILITY OF THESE --
MR. SIMS, COULD YOU PUT ON THE -- ON THIS POST-IT
NEXT TO THE LANE THAT IS -- REPRESENTS ITEM 52, JUST AN ARROW AND
A 1.3, MAYBE MOVE THE POST-IT A LITTLE CLOSER TO THE STRIP SO IT
IS CLEAR.
MR. HARMON: I HAVE THE SAME OBJECTION.
THE COURT: NOTED. IT IS OVERRULED.
THE WITNESS: (WITNESS COMPLIES.)
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
MR. SCHECK: YOUR HONOR, MAY I PASS THIS TO THE JURY?
THE COURT: MAY I SEE IT FIRST?
MR. SCHECK: SURE.
(BRIEF PAUSE.)
MR. SCHECK: JUST ONE ADDITIONAL QUESTION BEFORE I PASS IT?
THE COURT: YES.
Q BY MR. SCHECK: SO WE ARE CLEAR, THE 1.3 DOT HERE ON
LANE 52, YOU SAID IN YOUR FIRST REPORT HERE, AND AFTER YOUR
SUBSEQUENT REHYBING OF THIS IS NOT REAL, IT IS AN ARTIFACT?
A THAT'S REAL -- THAT'S CORRECT. IN OTHER WORDS, I
COULDN'T ELIMINATE IT. IT JUST APPEARED TO BE AN ARTIFACT WHEN I
REHYBED IT.
THE COURT: ALL RIGHT.
WOULD YOU HAND IT TO JUROR NO. 7 THIS TIME. 7, TOP
ROW.
(THE EXHIBIT WAS PASSED AMONGST
THE JURORS.)
THE COURT: ALL RIGHT.
MR. SCHECK, WOULD YOU RETRIEVE THAT ITEM, 1168, FROM
DEPUTY SMITH.
MR. SCHECK: THANK YOU.
THE COURT: ALL RIGHT. PROCEED.
Q BY MR. SCHECK: MR. SIMS, IF THAT 1.3 DOT ON SAMPLE
52 REPRESENTED -- WAS REAL, AS OPPOSED TO AN ARTIFACT -- ARE YOU
WITH ME?
A OKAY.
Q -- WOULD THAT NOT BE CONSISTENT WITH A MIXTURE OF
DEGRADED DNA FROM ONE CONTRIBUTOR AND ADDITIONAL DNA BY WAY OF A
CROSS-CONTAMINATION FROM A SECOND CONTRIBUTOR WHO HAD A 1.1, 1.2
GENOTYPE?
MR. HARMON: OBJECTION, IT IS IRRELEVANT, CALLS FOR
SPECULATION, AND IT IS INCONSISTENT WITH HIS TESTIMONY, MISSTATES
HIS TESTIMONY.
THE COURT: SUSTAINED.
MR. SCHECK: I'M ASKING --
THE COURT: REPHRASE THE QUESTION.
Q BY MR. SCHECK: LET US ASSUME THAT THE 1.3 ALLELE ON
ITEM 51 IS REAL, OKAY?
A ON ITEM 51 NOW OR 52?
Q YES. I'M SORRY, ITEM 51 -- THE ONE WE HAVE JUST
LOOKED AT?
A I THINK THAT IS 52.
Q DID I SAY -- I MEAN LAPD ITEM 52, THE BUNDY BLOOD
DROP?
A THAT SOUNDS LIKE THE RIGHT ONE, RIGHT.
Q OKAY?
A RIGHT.
Q AND LET US ASSUME THAT THAT 1.3 DOT THAT WE JUST ALL
LOOKED AT IS REAL AND NOT AN ARTIFACT.
ARE YOU WITH ME?
A OKAY.
Q WOULD NOT THE TYPING ON THAT STRIP WE JUST EXAMINED
BE CONSISTENT WITH A MIXTURE OF A CONTRIBUTOR WITH A 1.1, 1.2
GENOTYPE AND A SECOND CONTRIBUTOR WHO CONTRIBUTED LESS DNA WITH A
1.3 GENOTYPE, 1.3, 1.3?
MR. HARMON: OBJECTION, YOUR HONOR. CALLS FOR SPECULATION,
MISSTATES HIS TESTIMONY AND IT IS AN IMPROPER HYPOTHETICAL.
THE COURT: OVERRULED.
THE WITNESS: WOULD THAT -- THE QUESTION IS WOULD THAT BE
CONSISTENT? THAT IS ONE POSSIBILITY.
Q BY MR. SCHECK: YES.
A YES.
Q ALL RIGHT.
NOW, AS WE SAID -- WITHDRAWN.
YOU AGREE THAT SAMPLE 52 HAS THE DNA IN IT THAT IS IN
THE BEST SHAPE OF ALL THE BLOOD DROPS RECOVERED ON JUNE 13TH FROM
THE BUNDY WALKWAY?
A THAT IS -- THAT IS MY UNDERSTANDING, YES.
Q AND IF ONE WERE TO ASSUME THAT THERE WAS
CROSS-CONTAMINATION BETWEEN MR. SIMPSON'S BLOOD AND THE SWATCH 52
AND OTHERS IN THE LABORATORY -- ARE YOU WITH ME? ASSUME SOME
CROSS-CONTAMINATION.
A IN OTHER WORDS, CONTAMINATION FROM A REFERENCE
SAMPLE.
Q FROM A REFERENCE SAMPLE OR FROM OTHER SAMPLES, JUST
ASSUME CROSS-CONTAMINATION.
LET'S NOT WORRY FOR THE MOMENT HOW IT GETS THERE.
MR. HARMON: I'M GOING TO OBJECT. THAT IS ARGUMENTATIVE,
YOUR HONOR.
THE WITNESS: I WOULD WORRY HOW IT GOT THERE.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. SCHECK: LET US ASSUME THAT THIS IS
CROSS-CONTAMINATION WITH SAMPLE 52 FROM A REFERENCE SAMPLE OR
>FROM ANOTHER SWATCH CONTAINING MR. SIMPSON'S BLOOD THAT HAD A
HIGH DNA CONTENT.
A OKAY.
Q AND LET US FURTHER ASSUME THAT THE STARTING MATERIAL
ON SWATCH NO. 52 HAD DNA THAT WAS DEGRADED.
A OKAY.
Q WOULD NOT A RESULT, ASSUMING THAT 1.3 DOT IS A REAL
DOT, NOT AN ARTIFACT -- ARE YOU WITH ME?
A OKAY.
Q WOULD NOT THE READING ON THIS STRIP BE CONSISTENT
WITH THAT SET OF ASSUMPTIONS?
MR. HARMON: OBJECTION. IT MISSTATES THE TESTIMONY. IT IS
IMPROPER HYPOTHETICAL NOT BASED ON FACT AND IT CALLS FOR
SPECULATION. IT IS ARGUMENTATIVE AND COMPOUND.
THE COURT: DO YOU UNDERSTAND THE FACTORS INVOLVED IN THE
QUESTION?
THE WITNESS: I THINK I UNDERSTAND THE FIRST ABOUT HALF OF
IT AND THEN I KIND OF LOST IT ON THE SECOND HALF.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: WHICH FACTOR DON'T YOU UNDERSTAND?
A WELL, WHEN YOU START TO TALK ABOUT WHERE THE 1.3
COMES IN.
Q ALL RIGHT.
I'M ASKING YOU TO ASSUME THE 1.3 WE SAW IN THAT STRIP
IS REAL.
A OKAY.
Q ALL RIGHT.
AND ASSUMING THE OTHER CONDITIONS THAT WE TALKED
ABOUT WITH RESPECT TO CROSS-CONTAMINATION --
A OKAY.
Q -- WOULD THAT STRIP NOT BE CONSISTENT WITH --
WOULDN'T THAT STRIP BE CONSISTENT WITH THE HYPOTHETICAL I JUST
GAVE YOU?
MR. HARMON: YOUR HONOR, I HAVE AN OBJECTION, THE SAME
GROUND. MAY WE APPROACH ON THIS?
THE COURT: NO.
MR. HARMON: MAY I CITE A CASE, YOUR HONOR, FOR THE
PROPOSITION?
THE COURT: NO. SIT DOWN.
SUSTAINED.
Q BY MR. SCHECK: IF ONE ASSUMES THAT 1.3 DOT IS A REAL
ALLELE --
A OKAY.
Q -- THAT IS NOT CONSISTENT WITH A MIXTURE OF STARTING
MATERIAL THAT IS DEGRADED THAT CONTAINS A 1.3 ALLELE AND --
MR. HARMON: YOUR HONOR, I MUST OBJECT. I'M SORRY TO
INTERRUPT.
THE SAME GROUNDS, ASSUMES FACTS NOT IN EVIDENCE. IT
MISSTATES HIS OWN TESTIMONY.
THE COURT: OVERRULED.
MR. HARMON: CALLS FOR SPECULATION.
THE COURT: OVERRULED.
Q BY MR. SCHECK: LET'S START AGAIN.
IF THAT 1.3 DOT IS REAL, IS IT NOT CONSISTENT -- IS
THE STRIP WE JUST LOOKED AT -- ISN'T IT CONSISTENT WITH A MIXTURE
WHERE THE SOURCE OF THE 1.3 HAS LESS DNA IN IT THAN THE SOURCE OF
THE 1.1, 1.2?
A YES, THAT IS ONE POSSIBILITY.
Q ALL RIGHT.
NOW, YOU REDID ITEM NO. 52. THAT IS WHAT YOU CALLED
A REHYBRIDIZATION?
A YES, I REHYBED THAT SAMPLE.
Q AND YOU REHYBED THAT SAMPLE BECAUSE YOU WERE TROUBLED
BY THE INTENSITY OF THE 1.3 DOT AND YOU WANTED TO SEE IF YOU
COULD RESOLVE WHETHER IT WAS REAL OR NOT REAL?
A WELL, THAT -- THAT WAS PART OF IT. THE SECOND REASON
WAS THAT I THINK IN THAT PARTICULAR RUN THE POSITIVE CONTROL
SHOWED A LITTLE BIT OF THE 1.3 AND SO DID THE QUALITY CONTROL
SAMPLE THAT WAS RUN ON THAT PARTICULAR SET.
AND THOSE TWO SAMPLES WERE WHAT WE
CALLED -- OR ACTUALLY THIS IS THE INITIAL READER CALLED THE TRACE
OR HINT TRACE LEVEL AND THAT WAS ANOTHER CLUE THAT MAYBE THERE
WAS A HYBRIDIZATION QUESTION ON THOSE PARTICULAR RESULTS.
SO THE TOTALITY IS ALL OF THAT TOGETHER, YES, THAT IS
WHY THAT WAS REPEATED.
Q WELL, YOU JUST SAID THAT YOU RAN IT AGAIN BECAUSE YOU
SAW A HINT OF THE 1.3 DOT ON THE QUALITY CONTROL SAMPLE IN THE
POSITIVE CONTROL.
A WELL, IT IS -- THIS IS GETTING VERY TECHNICAL, BUT
THE LEVEL OF THAT 1.3 WAS SOMEWHAT INCREASED RELATIVE TO THE C
DOTS ON THE POSITIVE CONTROL AND ON THE QUALITY CONTROL SAMPLE IN
THIS PARTICULAR RUN, AS OPPOSED TO I THINK IT WAS ON THE PRIOR
RUN THAT YOU MENTIONED WHERE WE HAD, WHAT WAS IT, 31 AND 30 -- I
THINK IT WAS 30.
Q YOU MAKE OUT SCORING SHEETS WHERE TWO READERS LOOK AT
THESE DOTS, RIGHT?
A YES.
Q AND ON THE SCORING SHEET FOR THIS STRIP THAT CONTAINS
ITEM 52, WHEN YOU LOOKED AT THE POSITIVE CONTROL AND THE QUALITY
ASSURANCE CONTROL, THE 1.3 WAS CHARACTERIZED AS A FAINT TRACE OR
A HINT?
A ONE WAS -- THE QUALITY CONTROL SAMPLE WAS
CHARACTERIZED AS A TRACE AND THE POSITIVE CONTROL WAS
CHARACTERIZED AS A HINT/TRACE.
Q AND ON THE PREVIOUS RUN WITH THE CONSOLE, THE QUALITY
CONTROL STRIP AND THE POSITIVE CONTROL WERE ALSO CHARACTERIZED AS
HINTS OF THE 1.3?
A ONLY AS HINTS, YES, BUT THE READER FELT THAT THESE
TWO RESULTS ON THIS SECOND RUN WERE SLIGHTLY HIGHER ON THE 1.3.
AND I REALIZE THIS IS A SUBTLE DIFFERENCE, BUT THIS
IS WHAT A PERFECT LOOK AT.
Q WELL, YOU CALL THEM BOTH HINTS, RIGHT?
A ON THE FIRST RUN THEY WERE CALLED HINTS. ON THE
SECOND RUN ONE WAS CALLED A HINT/TRACE AND THE OTHER WAS CALLED A
TRACE AND A TRACE IS MORE THAN A HINT IN OUR VERNACULAR.
Q AND WHEN YOU ARE MAKING THESE DISTINCTIONS BETWEEN
HINTS AND TRACES, YOU ARE TALKING ABOUT ALMOST IMPERCEPTIBLE
LEVELS OF INTENSITY DIFFERENCES?
A WELL, THEY ARE THE KIND OF DIFFERENCES THAT WOULD BE
LEFT -- BEST LEFT TO THE JUDGMENT OF THE EXPERT, SOMEONE WHO HAS
EXPERTISE AND EXPERIENCE IN DEALING WITH THESE TYPES OF
INTERPRETATIONS, YES.
Q WELL, YOU ARE LITERALLY LOOKING, JUST AS THE JURY
DID, WITH YOUR NAKED EYE AT A THOUSAND LITTLE INTENSITY OF THE
DOTS?
A YES.
Q THAT IS WHAT YOU ARE DOING?
A I HAVE A TRAINED EYE. THAT WOULD BE THE ONLY
DISTINCTION I WOULD MAKE.
Q AND OTHER TRAINED EYES LOOKING AT THESE PARTICULAR
CALLS THAT YOU MADE, YOU MIGHT EXPECT COULD HAVE A DIFFERENT
INTERPRETATION OF THESE SMALL INTENSITIES, OTHER EXPERIENCED
ANALYSTS LIKE YOURSELF?
A YOU MEAN SUCH AS DR. BLAKE?
Q DR. BLAKE, DR. GERDES, DR. MULLIS, OTHERS?
A I DON'T KNOW IF DR. BLAKE, FOR EXAMPLE, WOULD
DISAGREE WITH THESE INTERPRETATIONS.
Q WHAT ABOUT DR. MULLIS OR DR. GERDES?
MR. HARMON: OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: THE -- YOU RERAN THIS -- TO GET BACK
TO THIS ITEM 52, YOU DID WHAT YOU CALLED A REHYBRIDIZATION?
A YES.
Q AND THAT IS YOU TOOK SOME OF THE AMPLIFIED PRODUCT
LEFT OVER AND YOU RAN IT ON THE STRIP AGAIN?
A THAT'S CORRECT.
Q AND DID YOU DEVELOP IT FOR THE SAME AMOUNT OF TIME ON
THE STRIP THAT YOU DID THE FIRST ONE?
A I WOULD HAVE TO CHECK THE NOTES ON THAT POINT.
(BRIEF PAUSE.)
THE WITNESS: I -- I AM LOOKING AT A XEROXED COPY OF THE
INITIAL RUN AND I'M HAVING TROUBLE SEEING EXACTLY HOW LONG THE
DEVELOPMENT WAS.
ACCORDING TO OUR PROTOCOL, IT IS 20 TO 30 MINUTES IS
THE STANDARD DEVELOPMENT TIME.
Q WELL, LET'S JUST SEE IF WE CAN MAKE CLEAR, BEFORE THE
BREAK, WHAT WE MEAN BY DEVELOPMENT TIME.
YOU ARE SAYING THAT SOMETIMES WHEN YOU PUT THE
AMPLIFIED PRODUCT ON THE STRIP YOU ARE LITERALLY WAITING FOR
ALMOST LIKE A PHOTOGRAPH FOR THE DOTS TO DEVELOP; IS THAT RIGHT?
A WELL, YES. THE VERY LAST PART, AFTER YOU HAVE ADDED
THE COLOR REAGENTS, THEN THERE IS A CERTAIN TIME THAT PASSES AS
THESE DOT INTENSITIES DEVELOP.
Q AND THE LONGER YOU LET IT DEVELOP, THE MORE YOU WILL
SEE LUMINOSITY FROM THE DOTS?
A YES, YOU WILL SEE AN INCREASE IN THE COLOR TO THE
POINT.
Q AND THE LONGER YOU LEAVE IT TO DEVELOP THE LESS YOU
WILL SEE LUMINOSITY FROM THE DOTS?
A IT GETS TO A CERTAIN POINT. YOU CAN OVERDEVELOP
THESE STRIPS. THAT CAN HELP.
AND IT IS MENTIONED IN THE USER GUIDE, FOR EXAMPLE,
THAT YOU CAN OVERDEVELOP THESE STRIPS, AND FOR EXAMPLE, DR. BLAKE
COMMENTED SEVERAL TIMES THAT WE OVER DEVELOPED OUR STRIPS AND
THAT MIGHT BE ONE REASON WE SEE MORE OF THE 1.3 WEAK RESULT.
Q WAS THAT THE HYPOTHESIS YOU WERE PURSUING WHEN YOU
WERE REHYBRIDIZING THIS?
A THAT IS ONE THING THAT I THOUGHT, THAT WE DO LET OUR
STRIPS DEVELOP A LONG TIME.
Q AND THE SECOND TIME THAT YOU HYBRIDIZED ITEM NO. 52,
YOU DIDN'T LET IT DEVELOP AS LONG?
A I DIDN'T SAY THIS AT ALL. I LET THAT GO 22 MINUTES,
IT LOOKS LIKE, ACCORDING TO MY NOTES, AND 20 TO 30 MINUTES IS
WHAT IS CALLED FOR IN THE PROTOCOL.
Q WELL, DID YOU LET THE FIRST STRIP WHERE YOU SAW A
DARKER 1.3 GO FOR LONGER?
A I -- I -- AS I MENTIONED, I COULDN'T SAY THAT FOR
SURE, BECAUSE I AM LOOKING AT A XEROX COPY OF THE NOTES AND THAT
MAY BE AT THE VERY BOTTOM AND I'M NOT PICKING IT UP.
Q BUT WHEN YOU REHYBRIDIZED, WHEN YOU DID IT AGAIN, YOU
STILL SAW A FAINT TRACE OF THE 1.3 DOT IN YOUR SECOND
HYBRIDIZATION, DIDN'T YOU?
A I THINK ON THAT PARTICULAR RUN SHEET THE -- WELL, LET
ME LOOK AT IT RIGHT HERE. I HAVE IT.
Q THAT WAS THE ONE PERFORMED ON DECEMBER 31ST, 1994.
A YES, I THINK IN THE RUN SHEET I DID SCORE THAT AS A
VERY FAINT TRACE. I SCORED IT AS A FAINT TRACE. I THINK THE
PHOTOGRAPH OF THAT ONE SPEAKS FOR ITSELF.
Q WELL, WHEN YOU ARE ANALYZING THESE DOT-BLOTS AND YOU
LOOK AT IT IN THE TRAY AS IT IS DEVELOPING, OFTEN THE ANALYST
WILL BE ABLE TO SEE INTENSITIES THAT ARE NOT PICKED UP ON THE
PHOTOGRAPH?
A WELL, WE USUALLY READ THE STRIPS AND THEN PHOTOGRAPH
THEM, SO DEPENDING ON THE QUALITY OF THE PHOTOGRAPH, THAT COULD
BE TRUE.
THERE ARE SUBTLE THINGS THAT ONE MAY NOT SEE ON A
PHOTOGRAPH.
THE COURT: ALL RIGHT. MR. SCHECK.
MR. SCHECK: LAST QUESTION, YOUR HONOR. ONE LAST QUESTION.
Q SO THE FACT OF THE MATTER IS, WHEN YOU LOOKED AT THE
STRIP WHEN YOU REHYBRIDIZED IT, YOU, MR. SIMS, RECORDED THAT
THERE WAS STILL A FAINT TRACE OF THE 1.3 DOT?
A YES, I DO.
MR. SCHECK: OKAY. THANK YOU.
THE COURT: LADIES AND GENTLEMEN, WE ARE GOING TO TAKE OUR
BREAK FOR THE LUNCH RECESS.
PLEASE REMEMBER ALL MY ADMONITIONS TO YOU.
DON'T DISCUSS THE CASE AMONG YOURSELVES, DON'T FORM
ANY OPINIONS ABOUT THE CASE, DON'T CONDUCT ANY DELIBERATIONS
UNTIL THE MATTER HAS BEEN SUBMITTED TO YOU, DO NOT ALLOW ANYBODY
TO COMMUNICATE WITH YOU WITH REGARD TO THE CASE.
WE WILL STAND IN RECESS UNTIL ONE O'CLOCK.
(AT 12:04 P.M. THE NOON RECESS
WAS TAKEN UNTIL 1:00 P.M. OF
THE SAME DAY.)
LOS ANGELES, CALIFORNIA; MONDAY, MAY 22, 1995
1:00 P.M.
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: GOOD AFTERNOON, COUNSEL.
BACK ON THE RECORD IN THE SIMPSON MATTER.
DEFENDANT IS AGAIN PRESENT BEFORE THE COURT WITH
COUNSEL, PEOPLE ARE REPRESENTED.
ALL RIGHT.
DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE.
MR. HARMON: YOUR HONOR, I JUST HAVE ONE POINT.
SOME OF THE HYPOTHETICALS ARE -- OR PARTICULARLY WITH
WHAT HAPPENED WITH MR. SIMS IN THE MORNING SESSION -- ARE BEYOND
WHAT THE CASE LAW IN THIS STATE ALLOWS. UNDER THE AUTHORITY OF
HYATT VERSUS C.R. BOAT COMPANY, 79 CAL. APP. 3D. 325, IN THE
CLEAR LAW IN THIS STATE IS:
"AN EXPERT OPINION MUST NOT BE BASED ON SPECULATIVE OR
CONJECTURAL DATA IS WELL SETTLED. AN EXPERT'S ASSUMPTIONS OF
FACTS CONTRARY TO THE PROOF DESTROYS THE OPINION."
AND THE REASON I THINK THAT'S IMPORTANT IS, THOSE ARE
FAIRLY MODERATE STATEMENTS OF THE LAW.
THIS COURT OVERRULED MY OBJECTIONS WHERE MR. SIMS WAS
FORCED TO ASSUME SOMETHING THAT WAS CONTRARY TO HIS OWN OPINION,
WHICH REALLY TURNS THE WHOLE CONCEPT -- STANDS ON ITS HEAD AND
MUST FEEL VERY BIZARRE FOR HIM TO ASSUME SOMETHING THAT HE KNOWS
IS IN FACT SCIENTIFICALLY INCORRECT AND WE HAVE THESE FACELESS
REASONABLE SCIENTISTS WHO MIGHT DISAGREE.
SO I THINK IT'S ABOUT TIME THAT WE DRAW THE LINE ON
THE HYPOTHETICALS AT LEAST UNTIL THE DEFENSE CALLS SOME OF THESE
PEOPLE THAT MIGHT DISAGREE, AND THEN WE CAN ADDRESS THEIR
CREDIBILITY OR THE BASIS FOR THEIR OPINIONS. BUT I'D REALLY LIKE
THE COURT TO CONSIDER THE LEGAL AUTHORITY AND DRAW THE LINE ON
SOME OF THESE HYPOTHETICALS WHEN THEY'RE NOT EVEN ARGUABLY BASED
ON FACTS THAT WERE PRESENTED.
THAT LAST ONE FORCED HIM TO ASSUME SOMETHING THAT WAS
CONTRARY TO HIS OWN OPINION, AND WE'VE BEEN GIVEN NO DISCOVERY
THAT THERE'S ANY OTHER OPINION BY ANY DEFENSE EXPERT IN THIS
CASE.
I'D LOVE TO SEE DR. BLAKE'S REPORT. I KNOW IT'S
QUITE A LENGTHY DOCUMENT. BUT RIGHT NOW, THIS EXPERT HAS BEEN
FORCED TO PRETEND THAT HE FEELS SOMETHING MIGHT BE OTHER THAN
WHAT HE KNOWS IT IS AND WE'VE NEVER BEEN GIVEN ANY RECIPROCAL
DISCOVERY FROM THE PEOPLE THAT MR. SCHECK MENTIONED THAT THEY
EVEN HAVE AN OPINION TO THE CONTRARY.
SO I'D LIKE TO REVISIT THAT AND PERHAPS HAVE THE
COURT RECONSIDER THE RULING AND STRIKING THAT TESTIMONY BECAUSE
IT JUST STANDS THE WHOLE PREMISE OR THE WHOLE PRINCIPAL OF
ALLOWING REASONABLE HYPOTHETICALS BASED ON THE EVIDENCE IN THE
CASE AND TOTALLY IGNORES IT AND JUST LETS PEOPLE PRETEND WHATEVER
THEY WANT.
MR. SCHECK: YOUR HONOR, I THINK THAT THIS WITNESS, FOR
EXAMPLE, JUST IN THE ONE INSTANCE THAT MR. HARMON RAISED
INDICATED THAT HE THOUGHT THIS WAS A QUOTE, UNQUOTE, TOUGH CALL,
AND IT SEEMS TO ME A FAIR INFERENCE FROM THE EVIDENCE WHEN YOU'RE
DEALING WITH SMALL DOT INTENSITY DIFFERENCES AND JUST TO
ILLUSTRATE A BASIC PRINCIPAL OF HOW HE EVEN ARRIVED AT HIS
CONCLUSIONS AND WHAT THE ISSUES ARE, TO ASK HIM TO ASSUME THAT
THIS IS REAL INSTEAD OF AN ARTIFACT WHEN HE GOES THROUGH A WHOLE
CHAIN OF INFERENCES TO COME TO HIS OPINION THAT IT'S AN ARTIFACT
AS OPPOSED TO REAL.
AND IT SEEMS TO ME THAT'S WELL WITHIN THE SCOPE OF A
REASONABLE HYPOTHETICAL, AND IT SEEMS TO ME THAT WHAT THE
PROSECUTION LIKES TO DO IS SAY, "WELL, IF OUR WITNESS SAID THAT
SOMETHING IS X AND IS TRUE IN OUR OPINION, THEN IT'S ABSOLUTELY
IMPERMISSIBLE TO ASK A HYPOTHETICAL OPINION TO ASSUME X ISN'T
TRUE."
AND IT SEEMS TO ME THAT THAT'S NOT THE LAW AND THAT'S
NOT EVEN -- PARTICULARLY WHEN THE HYPOTHETICALS ARE BASED UPON
FAIR INFERENCES IN THE EVIDENCE AND ARE DESIGNED TO SET UP THE
CONTRAST BETWEEN WHAT THIS WITNESS SAYS AND WHAT OTHER WITNESSES
COULD SAY ABOUT THOSE FACTS. AND I THINK HE EVEN AGREED THAT
REASONABLE EXPERTS COULD MAKE DIFFERENT CALLS BASED ON THESE DOT
INTENSITIES. HE SAID THAT HIMSELF. IT'S NOT WHAT HIS VIEW IS,
BUT HE AGREED OTHERS MIGHT.
SO I THINK THAT THAT PARTICULAR HYPOTHETICAL WAS
CERTAINLY WITHIN THE RANGE OF WHAT ONE COULD DRAW FROM FAIR
INFERENCES ON THE EVIDENCE. AND IN THIS PARTICULAR AREA, I THINK
IT'S ALSO IMPORTANT TO BE ABLE TO PUT QUESTIONS TO THE WITNESS TO
ILLUSTRATE THE PRINCIPLES THAT ARE AT ISSUE HERE SO WE CAN
UNDERSTAND WHAT THEIR OPINIONS ARE AND WHAT THEY AREN'T.
MR. HARMON: JUST VERY BRIEFLY.
THE PROBLEM IS, WHEN IT'S A HYPOTHETICAL, A
HYPOTHETICAL IS GOVERNED BY THE LAW IN THIS STATE. IT MUST BE
BASED ON FACTS, NOT THE EVIDENCE. IF YOU WANT TO ASK HIM
PRINCIPLES, YOU CHANGE THE FORM OF THE QUESTION.
BUT TO FORCE A MAN TO SAY, "I'LL ASSUME THAT EVEN
THOUGH I DON'T BELIEVE IT'S TRUE," AS I SAY, HE MUST FEEL LIKE HE
HAD AN OUT OF BODY EXPERIENCE WHEN THAT HAPPENED BECAUSE HE KNOWS
IT'S NOT TRUE, AND HERE THE LEGAL SYSTEM IS MAKING HIM PRETEND
THAT IT IS TO SATISFY MR. SCHECK'S CURIOSITY WHEN THERE'S A
DIFFERENT FORM OF THE QUESTION.
"IT IS WELL SETTLED THAT IT MUST NOT BE BASED ON
SPECULATIVE OR CONJECTURAL DATA."
HE'S NOT CONJECTURING. THAT'S NOT THE DATA THAT HE
RELIED ON.
I THINK THE OTHER POINT IS, THIS TOUGH CALL BUSINESS,
THAT IS NOT WHAT THE TOUGH CALL WAS ABOUT, AND I'M -- YOU KNOW,
YOU'LL BE PLEASED TO HEAR WHAT THE TOUGH CALL WAS ABOUT ON CROSS
EXAM -- ON REDIRECT EXAMINATION, BUT IT DOESN'T RELATE TO THIS
ISSUE AT ALL.
SO I'D JUST LIKE TO RESUME GETTING IN LINE WITH
CALIFORNIA AUTHORITY AND THE EVIDENCE CODE AND HAVING
HYPOTHETICALS BASED ON SOME REASONABLE INTERPRETATION OF THE
EVIDENCE AND NOT FORCING PEOPLE TO PRETEND THAT THINGS ARE OTHER
THAN WHAT THEY KNOW AND THAT THERE IS NO CONFLICTING DATA.
IF THEY WANT TO MAKE AN OFFER OF PROOF -- IT APPEARS
THAT WE SEEM TO HAVE DISGORGED SOME DATA FROM DR. GERDES, AND
IT'S CLEAR THAT THIS COURT HAS ENGAGED IN IN-CAMERA REVIEW OF
DEFENSE DISCOVERY AND IS SLOWLY STARTING TO TRICKLE OUT NOW.
IF THEY WANT TO MAKE AN OFFER OF PROOF THAT THERE IS
SOME EVIDENCE TO THE CONTRARY, THEN, NUMBER ONE, WE'VE BEEN
SANDBAGGED SINCE JANUARY ON THAT MATERIAL, AND, NUMBER TWO, WE'D
LIKE TO HAVE A CHANCE TO REVIEW IT AND WE NEED TO CALL A HALT TO
THE PROCEEDINGS. SO -- BUT WITHOUT AN OFFER OF PROOF, THE ONLY
EVIDENCE OR THE ONLY OFFER OF PROOF IS THAT THAT WAS NOT A 1.3,
YOUR HONOR.
THE COURT: THE COURT'S PREVIOUS RULING STANDS.
LET'S HAVE THE JURY, PLEASE.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT.
THANK YOU, LADIES AND GENTLEMEN.
MR. SIMS.
LET THE RECORD REFLECT WE'VE BEEN REJOINED BY ALL THE
MEMBERS OF OUR JURY PANEL.
GOOD AFTERNOON, LADIES AND GENTLEMEN.
THE JURY: GOOD AFTERNOON.
THE COURT: MR. GARY SIMS IS AGAIN ON THE WITNESS STAND
UNDERGOING CONCLUDING CROSS-EXAMINATION BY MR. SCHECK.
GARY SIMS,
THE WITNESS ON THE STAND AT THE TIME OF THE LUNCH RECESS, RESUMED
THE STAND AND TESTIFIED FURTHER AS FOLLOWS:
THE COURT: DEPUTY MAGNERA, WOULD YOU MAKE ARRANGEMENTS TO
STAY LATE TONIGHT, PLEASE, WITH THE WHOLE STAFF?
THANK YOU.
PROCEED.
MR. SCHECK: THANK YOU, YOUR HONOR.
THE COURT: WE WILL FINISH MR. SIMS TODAY.
MR. SCHECK: ABSOLUTELY.
GOOD AFTERNOON, LADIES AND GENTLEMEN OF THE JURY.
CROSS-EXAMINATION (RESUMED)
BY MR. SCHECK:
Q GOOD AFTERNOON, MR. SIMS.
A GOOD AFTERNOON.
Q NOW, MR. SIMS, JUST ONE LAST POINT ON -- WITH RESPECT
TO LAPD ITEM NO. 52.
YOU WERE TALKING ABOUT TWO DIFFERENT KINDS OF TESTS
PERFORMED ON THAT ITEM, THE DQ-ALPHA TEST THAT -- THE STRIP WE
JUST REVIEWED. DO YOU RECALL THAT?
A YES.
Q AND AN RFLP TEST THAT WAS CONDUCTED BY CELLMARK?
A YES.
Q NOW, THE DQ -- OUT OF THOSE TWO TECHNIQUES, THE
DQ-ALPHA SYSTEM IS WHAT IS KNOWN AS THE MORE SENSITIVE ONE?
A YES.
Q AND THAT MEANS THAT IF THERE WERE SOME SMALL DEGRADED
CONTRIBUTION TO ITEM 52, ONE WOULD BE MORE LIKELY TO SEE THAT
WITH THE DQ-ALPHA SYSTEM THAN YOU WOULD WITH THE RFLP SYSTEM?
A YES.
Q NOW, REFERRING YOU TO YOUR FINDINGS WITH RESPECT TO
THE BRONCO --
A OKAY.
Q -- THE -- YOUR FINDINGS ARE THAT LOOKING AT THE DATA
NOW FOR THE STAINS RECOVERED ON BOTH JUNE 14TH AND SEPTEMBER 1ST,
THAT THE PRIMARY DNA SOURCE ON THOSE BLOODSTAINS IN THE CONSOLE
WAS SOMEONE WITH DNA TYPES CONSISTENT WITH MR. SIMPSON'S?
MR. HARMON: OBJECTION, YOUR HONOR. IT'S VAGUE AS TO WHICH
STAINS.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. SCHECK: ALL RIGHT.
LET'S START WITH THE CALL -- WE HAD SOME LENGTHY
DISCUSSION ABOUT THE CALL YOU MADE ON ITEM 31.
A YES.
Q AND -- BUT ASSUMING YOUR CALL IS CORRECT WITH RESPECT
TO ITEM 31, IT'S YOUR INTERPRETATION THAT THE PRIMARY CONTRIBUTOR
WOULD BE SOMEONE WITH THE 1.1, 1.2 ALLELE GENOTYPE?
A NOW, THIS IS WITH REGARDS TO --
Q 31.
A 31.
YES. THIS WAS WHEN I -- WHEN I'D MENTIONED ABOUT
THIS WAS THE ONE WITH THE TOUGH CALL, THAT WAS THE TOUGH PART OF
THE CALL, WAS TO DECIDE WHETHER OR NOT WE COULD SAY THAT THERE
WAS A 1.1, 1.2 THERE AS A MAJOR TYPE. AND I WOULD CONTRAST THAT
WITH THE ONE THAT WE CALL DNA 30 WHICH YOU HAD ON THE CHART WHERE
WE SAID POSSIBLE 1.2 WHERE YOU SHOWED THE LISTING OF THE
RESULTS.
Q BUT MY QUESTION, SIR, IS SIMPLY, ON 31, YOUR FINDING
WAS THAT THE PRIMARY CONTRIBUTOR -- THE PRIMARY CONTRIBUTION WAS
DNA WITH THE 1.1, 1.2 GENOTYPE?
A THAT'S CORRECT. THAT WAS THE INTERPRETATION THAT WE
MADE FROM THAT RESULT.
Q AND ON 303, WHICH WAS COLLECTED ON SEPTEMBER 1ST,
YOUR INTERPRETATION THAT THE PRIMARY CONTRIBUTOR OF THE GENOTYPE
IN THE DQ-ALPHA SYSTEM WAS THE 1.1, 1.2 GENOTYPE?
A THIS IS NOW ON 303?
Q YES.
A NO.
ON ONE -- ON 303, WE JUST LISTED THE -- THE ALLELES.
I DON'T THINK -- WE DIDN'T STATE ABOUT THE -- WHICH ONE TENDED TO
BE THE PRIMARY ON 303.
Q SO ON 303, IN YOUR JUDGMENT, THERE IS -- YOU CAN'T
DISTINGUISH WHICH -- WHERE THERE'S A PRIMARY CONTRIBUTOR AND
WHERE THERE'S A SECONDARY CONTRIBUTOR OR CONTRIBUTORS?
A THAT'S CORRECT.
IN OTHER WORDS, THE DOT INTENSITIES WERE FAIRLY
WELL-BALANCED FOR THOSE DIFFERENT -- LIKE THE 1.3 AND THE 1.1.
Q AND AS TO 304, THE -- WOULD YOU SAY THAT THE PRIMARY
CONTRIBUTOR BASED ON YOUR READING OF DOT INTENSITIES WOULD BE DNA
>FROM THE 1.1, 1.2?
A NO. IT -- AGAIN, IT WAS MORE LIKE 303. AGAIN, THE
SIMILARITY OF THE ALLELES WAS NOTED SO THAT IT WASN'T CLEAR
NECESSARILY WHAT WENT WITH WHAT FROM THAT STRIP.
Q SO YOU CAN'T -- YOU WOULD MAKE NO INTERPRETATION AS
TO WHICH WAS THE PRIMARY AND WHICH WAS THE SECONDARY
CONTRIBUTION?
A BASED ON THE DQ-ALPHA, WE DID NOT.
Q WELL, IN COMBINATION WITH THE D1S80, DID YOU MAKE
INTERPRETATIONS?
A WELL, WE NOTED, FOR EXAMPLE, THAT THE 18 ALLELE WAS
WEAKER ON THE D1S80.
MR. SCHECK: EXCUSE ME JUST ONE SECOND, YOUR HONOR.
(BRIEF PAUSE.)
Q BY MR. SCHECK: NOW, YOUR TESTS DO NOT INDICATE WHEN
OR IN WHAT ORDER SOURCES OF DNA GOT ON THE CONSOLE?
A THAT'S CORRECT. IN OTHER WORDS, I DON'T KNOW THE
EXACT SEQUENCE OF HOW THINGS GOT ON THE CONSOLE. THAT'S CORRECT.
Q AND THE CONSOLE IS A COMPARATIVELY LARGE AREA WITHIN
THE BRONCO THAT PEOPLE COULD TOUCH?
A YES.
Q AND IN YOUR EXPERIENCE AS A FORENSIC SCIENTIST, IT'S
THE KIND OF SUBSTRATE THAT CAN CONTAIN TRACES OF SALIVA OR OTHER
BIOLOGICAL MATERIAL?
A YES, IT COULD.
Q AND THIS DATA THAT YOU'VE BEEN REPORTING TO US COULD
BE CONSISTENT WITH BLOOD FROM MR. SIMPSON BEING SMEARED ON THAT
CONSOLE FIRST AND THEN SOME OTHER PERSON OR PERSONS SUBSEQUENTLY
ENTERING THE CAR AND CONTRIBUTING BIOLOGICAL MATERIAL TO THE
STAINS ON THE CONSOLE?
A WELL, IT WOULD HAVE TO BE A SIGNIFICANT CONTRIBUTION
AND IT WOULD HAVE TO BE A VERY CONSISTENT CONTRIBUTION ACROSS THE
CONSOLE.
Q OF THE -- OF TRACES OF OTHER ALLELES?
A YES.
Q NOW, ARE YOU SAYING THAT WITH RESPECT TO SAMPLE 303,
YOU CAN NOT MAKE ANY DETERMINATION AS TO WHICH ALLELES ARE
ASSOCIATED WITH A PRIMARY CONTRIBUTOR AND WHICH ONE -- WHICH ONES
ARE ASSOCIATED WITH SECONDARY CONTRIBUTORS?
A WELL, THE -- THE PRINCIPAL INTERPRETATION THERE I
THINK WOULD AGAIN BE THE 18 ALLELE, THAT THAT APPEARED TO GO AS A
SECONDARY CONTRIBUTION.
Q I'M ONLY TALKING ABOUT THE DQ-ALPHA SYSTEM.
A NO. ON THE DQ-ALPHA, WE DID NOT BREAK THAT DOWN.
Q ALL RIGHT.
SO AS FAR AS YOU'RE CONCERNED, IN THE DQ-ALPHA
SYSTEM, YOU CAN NOT MAKE ANY ASSESSMENT IN TERMS OF THE STRENGTHS
OF THE DOTS TO DIFFERENTIATE THE 1.1 FROM THE 1.2 FROM THE 1.3
>FROM THE 1.4?
A WELL, AGAIN, THERE MAY BE SOME SUBTLETIES THERE, BUT
WE DID NOT MAKE ANY DISTINCTION ALONG THOSE LINES, NO.
Q ALL RIGHT.
SO LOOKING AT THE STAIN IN 303 AND THE DQ-ALPHA
SYSTEM, YOU'VE IDENTIFIED A SERIES OF ALLELES WITHIN THE MIXTURE,
CORRECT?
A YES.
Q THAT'S THE 1.1, THE 1.2, THE 1.3 AND THE 1.4?
A WELL, WAIT. NOT THE 1.4. I THINK YOU MEAN THE 4.
Q THE 4. I'M SORRY.
A AND ALSO, ON THE 1.2, WE NOTED THAT IT'S A POSSIBLE
1.2.
Q UH-HUH.
A THAT WOULD BE CORRECT.
Q NOW, IN ASSESSING THE POSSIBLE COMBI -- ONE --
WITHDRAWN.
AN ANALYST SUCH AS YOURSELF WILL REVIEW POSSIBLE
GENOTYPE COMBINATIONS THAT COULD BE WITHIN A MIXTURE SUCH AS
STAIN 303?
A YES.
Q ON THE DQ-ALPHA SYSTEM?
A YES.
Q AND MR. SIMPSON'S GENOTYPE FOR THIS DQ-ALPHA SYSTEM
IS A 1.1, 1.2?
A YES, IT IS.
Q ALL RIGHT.
NOW, IF ONE ASSUMES THAT MR. SIMPSON'S GENOTYPE OF
1.1, 1.2 IS WITHIN THAT STAIN, 303, ONE CAN BY A SIMPLE SERIES OF
FIGURING OUT COMBINATIONS COME UP WITH OTHER TWO-PERSON GENOTYPE
COMBINATIONS WHICH, WHEN COMBINED WITH MR. SIMPSON'S 1.1, 1.2
GENOTYPE, WILL ACCOUNT FOR ALL THE DQ-ALPHA ALLELES IN STAIN 303?
A WELL, YES. THOSE OTHER TYPES THAT COULD ACCOUNT FOR
THOSE, YES, ALL THE ALLELES.
MR. SCHECK: NOW, LIKE TO HAVE THIS MARKED AS DEFENDANT'S
NEXT IN ORDER, TWO-PAGE DOCUMENT.
THE COURT: 1169.
(DEFT'S 1169 FOR ID = TWO-PAGE DOCUMENT)
(BRIEF PAUSE.)
Q BY MR. SCHECK: MR. SIMS, ASK YOU TO LOOK AT THIS AND
SEE IF YOU WOULD AGREE THAT THE LIST HERE OF GENOTYPES REPRESENTS
THE ACTUAL COMBINATION OF TWO-PERSON GENOTYPES -- WITHDRAWN --
REPRESENTS TWO-PERSON GENOTYPE COMBINATIONS WHICH, WHEN COMBINED
WITH MR. SIMPSON'S GENOTYPE OF 1.1, 1.2, WILL ACCOUNT FOR ALL THE
DQ-ALPHA ALLELES IN STAIN 303.
A OKAY.
YES. THIS IS THE LIST YOU SHOWED ME AT THE BREAK,
AND I BELIEVE THOSE ARE CORRECT.
MR. SCHECK: ALL RIGHT.
YOUR HONOR, COULD I --
Q BY MR. SCHECK: NOW, LET ME JUST PUT THAT UP ON THE
ELMO TO GIVE AN IDEA WHAT THIS LOOKS LIKE.
(BRIEF PAUSE.)
Q BY MR. SCHECK: SO THIS CHART, AS ONE MOVES DOWN IT,
JUST SIMPLY LISTS ALL THE DIFFERENT POSSIBLE GENOTYPES OF A
SECOND CONTRIBUTOR AND A THIRD CONTRIBUTOR THAT COULD ACCOUNT FOR
ALL THE DQ-ALPHA ALLELES IN STAIN 303 WHEN COMBINED WITH MR.
SIMPSON'S GENOTYPE.
AND LET THE RECORD REFLECT I'VE NOW PUSHED THE PAGE
DOWN THROUGH PAGE 1 WHICH GIVES 23 COMBINATIONS AND NOW
EXHIBITING 24 THROUGH 37.
NOW, MR. SIMS, LOOKING AT THIS CHART, OUT OF THESE
COMBINATIONS ON THE CHART OF TWO PEOPLE'S GENOTYPES THAT COULD
ACCOUNT FOR ALL OF THE DQ-ALPHA ALLELES IN STAIN 303 WHEN IN
COMBINATION WITH MR. SIMPSON'S GENOTYPE, ISN'T IT TRUE THAT ONLY
TWO INCLUDE THE GENOTYPES OF RONALD GOLDMAN AND NICOLE BROWN
SIMPSON IN COMBINATION?
A I'M GOING TO HAVE TO LOOK AT THIS FOR A MINUTE
BECAUSE I NOTICE THAT YOU HAVE THE SECOND AND THIRD AND THEN YOU
JUST CHANGE THE TYPES THE -- YOU JUST REVERSE THE ORDER.
FOR EXAMPLE, IN NO. 1, YOU HAVE 1.1, 1.1 FOR THE
SECOND CONTRIBUTOR, THEN YOU HAVE A THIRD CONTRIBUTOR AS A 1.3,
4, BUT THEN YOU ALSO ON 24 LIST THE SECOND CONTRIBUTOR AS BEING
1.3, 4 AND THE THIRD CONTRIBUTOR AS BEING 1.1, 1.1.
Q WELL, MR. SIMS, JUST TAKE YOUR TIME, STUDY THE CHART
AND SEE IF YOU CAN TELL US OUT OF ALL THE COMBINATIONS ON THAT
CHART OF TWO PEOPLE'S GENOTYPES THAT WOULD ACCOUNT FOR ALL THE
ALLELES IN THE DQ-ALPHA SYSTEM IN THE MIXTURE STAIN OF 303, HOW
MANY OF THOSE COMBINATIONS -- AND SEE IF YOU'RE CLEAR WITH ME ON
THE QUESTION -- WOULD INCLUDE THE GENOTYPE OF RONALD GOLDMAN AND
NICOLE BROWN SIMPSON AS THE SECOND AND THIRD CONTRIBUTOR; OUT OF
THOSE COMBINATIONS, HOW MANY ARE INCLUDED IN THAT COMBINATION,
THAT IS NICOLE BROWN SIMPSON'S DQ-ALPHA TYPE AND RONALD GOLDMAN'S
DQ-ALPHA TYPE TOGETHER.
DO YOU UNDERSTAND MY QUESTION?
A I THINK SO.
MAY I WRITE ON THE --
THE COURT: DO YOU HAVE A CLEAN COPY OF THAT AVAILABLE?
MR. SCHECK: WE HAVE A CLEAN PAGE 1.
Q BY MR. SCHECK: SO WHY DON'T YOU MAKE YOUR NOTES ON
PAGE 1.
THE COURT: NO. HE'S ALREADY STARTED ON THAT ONE.
MR. SIMS, HAVE YOU ALREADY STARTED ON THAT ONE?
THE WITNESS: YES.
THE COURT: I JUST WANT TO MAKE SURE YOU HAVE A CLEAN COPY
AVAILABLE.
THE WITNESS: NOW, THE QUESTION HAS TO BE THAT THEY ARE
BOTH TOGETHER AS OPPOSED TO THE POSSIBILITY THAT ONE COULD BE
THERE WITH SOMEBODY ELSE?
Q BY MR. SCHECK: RIGHT. WE'RE JUST ASKING --
A BOTH TOGETHER.
Q ON THE HYPOTHETICAL, THAT MR. SIMPSON'S GENOTYPE 1.1,
1.2 IS THERE, AND IF LOOKING AT THE NUMBER OF COMBINATIONS THAT
ONE COULD HAVE OF TWO OTHER CONTRIBUTORS THAT EXPLAIN ALL THE
ALLELES, IN TERMS OF THOSE COMBINATIONS, TELL US HOW MANY OF
THOSE COMBINATIONS ARE ONES WHERE NICOLE BROWN SIMPSON'S
GENOTYPES AND RONALD GOLDMAN'S GENOTYPES TOGETHER PART OF THE
COMBINATION.
A OKAY.
(BRIEF PAUSE.)
THE WITNESS: OKAY.
I SEE IT IN TWO OF THEM.
Q BY MR. SCHECK: TWO OF THEM?
A YES.
Q SO OUT OF THE 37 COMBINATIONS THERE, ONLY TWO ARE
CONSISTENT WITH -- OF A TWO-PERSON GENOTYPE COMBINATIONS WHICH,
WHEN COMBINED WITH O.J. SIMPSON'S GENOTYPE OF 1.1, 1.2, WILL
ACCOUNT FOR ALL THE DQ-ALPHA ALLELES IN STAIN 303, ONLY TWO OF
THEM ARE ONES WHERE -- THAT HAVE NICOLE BROWN SIMPSON'S GENOTYPE
AND RONALD GOLDMAN'S GENOTYPE TOGETHER?
A YES. FROM THIS -- ON THIS LIST, THAT'S CORRECT.
Q ALL RIGHT.
NOW, LET'S DISCUSS THE STEERING WHEEL, ITEM NO. 29.
A OKAY.
Q ON DIRECT EXAMINATION, MR. HARMON ASKED YOU TO READ
>FROM YOUR REPORT WITH RESPECT TO YOUR FINDINGS ON THE STEERING
WHEEL.
DO YOU RECALL THAT?
A YES.
Q BUT SUBSEQUENT TO YOUR REPORT, THERE WAS ADDITIONAL
TESTING BY CELLMARK?
A YES.
Q AND THAT TESTING WAS THE SAME DQ-ALPHA LOCUS THAT YOU
LOOKED AT?
A YES.
Q AND ALSO POLY-MARKER TEST?
A YES.
Q WOULD YOU NOT AGREE, MR. SIMS, THAT LOOKING AT YOUR
DATA AND THE CELLMARK DATA, THAT THE BEST INTERPRETATION OF ITEM
NO. 29 IS THAT THE PERSON WHO DEPOSITED THE 4 ALLELE IS EITHER A
GENOTYPE OF 1.1, 4, 4, 4 OR 1.2, 4? THAT'S THE BEST
INTERPRETATION OF THE DATA.
A I KNOW THAT -- THAT EXPRESSION "BEST INTERPRETATION
OF THE DATA" BECAUSE THAT'S THE -- THE TERM THAT DR. BLAKE USES
WHEN HE INTERPRETS DATA LIKE THAT, AND I -- I THINK THAT PROBABLY
IS, FOR OUR PURPOSES, THE BEST INTERPRETATION OF THAT DATA, YES.
I -- I THINK I BROUGHT THIS OUT AND I WON'T GO INTO
DETAIL AGAIN, BUT I DON'T -- I DON'T THINK WE CAN BE ABSOLUTELY
SURE THAT THAT IS THE CORRECT INTERPRETATION.
Q BUT AS FAR AS YOU'RE CONCERNED, LOOKING AT ALL THE
DATA, THAT IS CERTAINLY THE BEST INTERPRETATION?
A WELL, AGAIN, THAT'S WITHOUT STUDYING THE CELLMARK
DATA. THAT'S JUST LOOKING AT WHAT I SEE ON OUR DQ-ALPHA RESULTS.
AND I'D HAVE TO SIT DOWN WITH THE CELLMARK DATA AND
PERHAPS TALK TO DR. COTTON ABOUT ALL THOSE RESULTS AND LOOK AT
INTENSITIES AND ALL THAT SORT OF THING, AND I HAVEN'T DONE THAT.
Q WELL, YOU HAVE LOOKED AT THEIR POLY-MARKER --
MR. SCHECK: CAN I MARK THIS DEFENDANT'S NEXT IN ORDER?
THE COURT: DEFENDANT'S 1170.
(DEFT'S 1170 FOR ID = POLY-MARKER STRIP)
Q BY MR. SCHECK: YOU HAVE LOOKED AT THEIR POLY-MARKER
STRIP?
A I -- I LOOKED AT THIS BRIEFLY, YES.
Q AND LOOKING AT THE INTENSITIES OF DOTS ON THE
POLY-MARKER STRIP, THOSE WOULD TEND TO SUPPORT THE
INTERPRETATION, THE BEST INTERPRETATION OF THE DATA THAT YOU AND
I JUST AGREED UPON?
A WELL, I DON'T -- I DON'T FEEL COMFORTABLE GIVING AN
OPINION ON THAT BECAUSE I DON'T HAVE A LOT OF HANDS-ON EXPERIENCE
WITH POLY-MARKER AND I HAVE TO RELY ON TALKING TO SOMEBODY LIKE
DR. COTTON ABOUT HER INTERPRETATION. SO I THINK I SHOULD GIVE
THAT PARTICULAR OPINION.
Q WELL, IN TERMS OF THE INTENSITIES OF THE DOTS, FOR
EXAMPLE, AT THE -- WITHOUT GOING INTO EXCRUCIATING DETAIL, BUT
LOOKING AT THE DOTS AT THE HBGG LOCUS --
MR. HARMON: OBJECTION. BEYOND THIS WITNESS' EXPRESSED
EXPERTISE.
THE COURT: BEYOND THE SCOPE OF CORRECT AS WELL.
SUSTAINED.
Q BY MR. SCHECK: DR. COTTON'S INTERPRETATION OF -- I'M
SORRY -- OF NO. 29 IS THAT IT IS A DQ-ALPHA TYPE 1.1, 1.2 AND 4
IN THE MIXTURE?
A YES.
Q AND YOU DO NOT DISAGREE WITH THAT FINDING, DO YOU?
A NO, I DON'T.
Q AND I THINK, AS YOU JUST INDICATED, YOU WOULD AGREE
THAT THE BEST INTERPRETATION OF THE DATA IS THAT THE CONTRIBUTOR
OF THE 4 ALLELE IN THIS MIXTURE WOULD EITHER HAVE A 1.1, 4, A 4,
4 OR A 1.2, 4 GENOTYPE?
MR. HARMON: OBJECTION. IT'S VAGUE AS TO WHAT THAT DATA
IS.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. SCHECK: THE DATA THAT YOU HAVE AND FROM WHAT
YOU'VE SEEN OF THE DQ-ALPHA DATA FROM CELLMARK AND LOOKING AT ALL
THE DATA, WOULD YOU NOT AGREE THAT THE BEST INTERPRETATION IS
THAT THE PERSON WHO DEPOSITED THE 4 ALLELE IS EITHER A 1.1, 4, A
4, 4 OR A 1.2, 4?
A WELL, AGAIN, I DON'T KNOW -- I DON'T USE THAT
INTERPRETATION, THAT BEST INTERPRETATION LINE. THAT'S -- I WOULD
NORMALLY SAY THAT YES, I THINK THAT'S PROBABLY WHAT'S GOING ON
HERE, BUT I WOULD HOLD OPEN THAT POSSIBILITY THAT I MENTIONED.
Q NOW -- WELL, WOULDN'T YOU SAY THAT BASED ON THE FACT
THAT THE 4 DOT IS GREATER THAN THE ALL CONTROL IN YOUR TESTS,
THAT IT IS EXTREMELY UNLIKELY THAT THE 4 IS FROM AN INDIVIDUAL
WHO POSSESSES THE 1.3 ALLELE?
A I'D HAVE TO LOOK AT THAT STRIP AGAIN TO MAKE THAT
COMMENT.
THE COURT: AND, MR. SIMS, THAT'S -- WHAT'S THE EXHIBIT
NUMBER ON THAT?
THE WITNESS: 1166.
I THINK THIS IS THE WRONG PHOTO.
Q BY MR. SCHECK: OKAY.
DO YOU HAVE THE PHOTO THERE? DO YOU HAVE YOUR PHOTO?
A YES. I THINK I CAN PRODUCE IT.
THE COURT: WELL, WHY DON'T WE USE THE ONE THAT'S IN
EVIDENCE, COUNSEL.
MR. SCHECK: NO, I DON'T THINK WE HAVE -- IF IT'S NOT ON
THIS STRIP, I'M NOT SURE IT'S IN EVIDENCE.
THE COURT: ALL RIGHT.
MR. SCHECK: AND WHILE MR. SIMS IS LOOKING FOR THAT, YOUR
HONOR, I ASK PERMISSION TO PULL OUT THE CHART SO I CAN GO THROUGH
WHAT I THINK IS THE LAST LINE OF QUESTIONS.
(BRIEF PAUSE.)
THE WITNESS: I -- MY ANSWER TO YOUR QUESTION IS, I DON'T
THINK THE ALL BUT 1.3 DOT IS PARTICULARLY RELEVANT HERE BECAUSE I
THINK, AS YOU MENTIONED WHEN WE WERE DISCUSSING ABOUT HOW THESE
DOT CALLS ARE MADE, IF THE OTHER SAMPLES HAVE ACTIVITY THAT WILL
LIGHT UP A DOT, THEN I DON'T -- I DON'T THINK THAT INTERPRETATION
IS PROPER HERE. I DON'T THINK THE ALL BUT 1.3 CALL, THE CALL ON
THAT DOT IS PARTICULARLY RELEVANT TO THIS -- TO THE DISCUSSION AT
THAT -- AT THE LEVELS OF INTENSITY THAT WE'RE TALKING ABOUT.
Q BY MR. SCHECK: NOW, ASSUMING THAT THERE IS A
CONTRIBUTOR TO THE -- ITEM NO. 29, THE STEERING WHEEL STAIN,
THAT'S A 1.1, 4, A 4, 4 OR A 1.2, 4 -- ARE YOU WITH ME?
A OKAY.
Q SUCH AN INDIVIDUAL COULD ALSO BE A CONTRIBUTOR BASED
ON THE DATA YOU FIND ON THE STAINS ON THE CONSOLE, 303, 304 AND
305?
THE COURT: FORGIVE ME FOR INTERRUPTING YOU. THE PROBLEM
IS, THE EASEL, MR. HARRIS, IS BLOCKING JUROR NO. 7'S VIEW OF THE
WITNESS HERE.
MR. SCHECK: IF WE COULD MOVE THE BIG ONE AWAY, I THINK
THAT WOULD BE BETTER. IF WE CAN MOVE THE BIG ONE AND THEN AWAY
>FROM THAT, THAT WILL MAKE IT EASIER.
Q BY MR. SCHECK: DO YOU HAVE MY LAST QUESTION IN MIND?
A IF YOU COULD REPEAT IT, PLEASE.
Q SURE.
AN INDIVIDUAL WITH -- INDIVIDUALS -- WITHDRAWN.
THE GENOTYPES 1.1, 4, 4, 4 OR 1.2, 4 ALL COULD BE
GENOTYPES THAT CONTRIBUTED TO THE STAINS ON THE CONSOLE, 303,
304, 305 AND YOUR INTERPRETATION OF 31?
A OKAY.
I'M WITH YOU ON 303 AND 304. NOW, THE OTHER ONE YOU
MENTIONED WAS?
Q 305.
A AND THE OTHER -- AND THE LAST ONE WAS?
Q YOUR INTERPRETATION OF 31, THE JUNE 14TH SAMPLE.
A IN OTHER WORDS, WOULD -- WOULD WE BE ABLE TO EXCLUDE
SOMEBODY WITH THOSE GENOTYPES OUT OF THESE MIXES? IS THAT THE
BASIC QUESTION?
Q THAT'S RIGHT.
A AND THE MIXTURES THAT WE'RE TALKING ABOUT ARE 1.1, 4,
1.2, 4 AND 4, 4?
Q 1.1, 4 IS ONE POTENTIAL GENOTYPE, 4, 4 IS ANOTHER
POTENTIAL GENOTYPE AND 1.2, 4 IS ANOTHER POTENTIAL GENOTYPE.
A THAT'S -- THAT'S CORRECT.
Q OKAY.
NOW, DO YOU HAVE -- I'M SORRY.
LOOKING AT -- IF WE GO WITH THE VIEW THAT THERE WAS A
CONTRIBUTOR TO THE STAIN ON THE STEERING WHEEL, NO. 29, THAT --
AND MAY I JUST WRITE ON THIS BOARD, CHART?
ONE OF THE GENOTYPES WE MENTIONED WAS 1.1, 4,
CORRECT?
A YES.
Q ANOTHER GENOTYPE WE MENTIONED WAS A 1.2, 4?
A YES.
Q AND THE THIRD GENOTYPE WE MENTIONED WAS A 4, 4?
A YES.
Q ALL RIGHT.
NOW, DO YOU HAVE WITH YOU THE FREQUENCY TABLES THAT
YOU USED TO CALCULATE THE FREQUENCIES FOR THE GENOTYPES YOU
REPORTED FOR THE PROSECUTION FOR THE DQ-ALPHA SYSTEM?
A YES, I BELIEVE I DO HAVE THAT TABLE.
Q NOW, STARTING WITH THE CAUCASIANS --
A OKAY.
Q -- WHAT IS THE FREQUENCY OF THE 1.1, 4 GENOTYPE IN
THE CAUCASIAN POPULATION?
A I'LL GIVE THIS AS A PERCENT?
Q AS A PERCENTAGE.
A 7.6 PERCENT.
Q WHAT IS THE FREQUENCY OF THE GENOTYPE 1.2, 4 FOR THE
CAUCASIAN POPULATION?
A 12 PERCENT.
Q WHAT IS THE FREQUENCY OF THE 4.4 GENOTYPE?
A CAUCASIAN AGAIN?
Q YES.
A WOULD BE 8 PERCENT.
Q WHAT IS THE FREQUENCY OF THE 1.1, 4 GENOTYPE FOR THE
AFRICAN-AMERICAN POPULATION?
A 8.9 PERCENT.
Q WHAT IS THE FREQUENCY FOR THE 1.2, 4 ALLELE FOR THE
AFRICAN-AMERICAN POPULATION?
A THIS WOULD BE FOR THE 1.2, 4 GENOTYPE, NOT ALLELE.
Q THAT'S RIGHT.
A 18.
Q WHAT IS THE FREQUENCY OF THE 4, 4 GENOTYPE FOR THE
AFRICAN-AMERICAN POPULATION?
A 9.5 PERCENT.
Q FOR HISPANIC POPULATION, THE 1.1, 4.
A 9 PERCENT.
Q EXCUSE ME.
FOR THE 1.2, 4?
A THE 1.2, 4?
Q YES.
A 9.2 PERCENT.
Q AND FOR THE 4, 4?
A 17 PERCENT.
Q NOW, IF ONE WERE TO ADD TOGETHER THE FREQUENCIES OF
THESE THREE GENOTYPES FOR THE CAUCASIAN POPULATION, THE 1.1, 4,
THE 1.2, 4 AND THE 4, 4, WHAT WOULD BE THE SUM?
A MAY I JUST LOOK AT THE CHART?
Q PLEASE.
IN FACT, TO SAVE US TIME, WHY DON'T YOU ADD IT UP FOR
ALL THREE COLUMNS.
A (WITNESS COMPLIES.)
Q THANK YOU.
MR. SCHECK: YOUR HONOR, MAYBE I SHOULD MOVE THIS EXHIBIT
AROUND SO --
THE COURT: TO THE CENTER? ALL RIGHT.
MR. SCHECK: YES.
(BRIEF PAUSE.)
Q BY MR. SCHECK: NOW, IN THE CHART LABELED PEOPLE'S
260, THERE'S A COLUMN INDICATING "INDIVIDUALS NOT EXCLUDED,"
CORRECT?
A YES.
Q AND THAT'S NOT EXCLUDED IN TERMS OF THE GENOTYPE
COMBINATIONS THAT COULD BE FOUND IN THE STAINS, SOME OF WHICH ARE
MIXTURES?
A YES.
Q AND WITH RESPECT NOW TO THE STEERING WHEEL, WHAT
WE'VE DONE IN THIS CHART IS LIST THE FREQUENCIES FOR THE
CAUCASIAN POPULATION, THE AFRICAN-AMERICAN POPULATION AND THE
HISPANIC POPULATION FOR THE GENOTYPE 1.1, 4.
A YES.
Q AND THESE REFLECT PERCENTAGES OF THOSE POPULATIONS
THAT CAN'T BE EXCLUDED JUST AS THE 1.1, 4 GENOTYPE CAN'T BE
EXCLUDED AS CONTRIBUTORS TO THE STAIN 29 ON THE STEERING WHEEL?
A I -- I -- YOU LOST ME A LITTLE BIT AT THE VERY END
THERE. IN OTHER WORDS, YOU ASKED ME ABOUT THOSE THREE POSSIBLE
GENOTYPES, AND WHAT I'M GIVING YOU IS THE LISTING OF THOSE
FREQUENCIES IN THE VARIOUS POPULATION GROUPS.
Q RIGHT.
AND FOR CAUCASIANS -- WITHDRAWN.
AND WE HAD -- WITH RESPECT TO THE STEERING WHEEL, WE
AGREED THAT IT'S CONSISTENT WITH THE FINDINGS THAT THE
CONTRIBUTOR OF THE 4 ALLELE COULD HAVE A 1.1, 4, A 1.2, 4 AND A
4, 4, CORRECT?
A THAT'S -- THAT'S CORRECT. IN OTHER WORDS, IF WE
THROW OUT THE POSSIBILITY THAT THERE -- THAT THAT 4 COULD GO WITH
ANY OTHER TYPE AND JUST SAID THAT THIS HAS TO BE A 4 STANDING BY
ITSELF WITH THOSE OTHER TWO ALLELES, YOU KNOW, CONTINUING THE
HYPOTHETICAL, YES.
Q SO IN OTHER WORDS, THE POSSIBLE CONTRIBUTOR OF THE 4
ALLELE COULD BE -- COULD HAVE ONE OF THESE THREE GENOTYPES?
A WELL, AGAIN, I COULDN'T ABSOLUTELY RULE OUT THAT THAT
4 ALLELE WENT WITH A WEAK ALLELE OR AN ALLELE FROM THE WEAKER
COMPONENT THAT DIDN'T GET AMPLIFIED AT THAT LEVEL OF SENSITIVITY.
Q YOU'RE SAYING THAT -- THAT'S A PHENOMENON KNOWN AS
ALLELIC DROP-OUT, ISN'T IT?
A NO.
Q WELL -- WITHDRAWN.
YOU'RE -- YOU AGREE -- YOU DON'T DISAGREE WITH
CELLMARK'S POSITION THAT MR. GOLDMAN'S 1.3, 4 IS EXCLUDED?
A WELL, I THINK WE WENT THROUGH THIS THE OTHER DAY
ABOUT HOW THIS KIND OF CALL OR HOW THIS INTERPRETATION CAN BE
MADE, AND MY CONCERN WAS THAT WE ARE AMPLIFYING SO LITTLE DNA TO
BEGIN WITH ON THIS SAMPLE. WE'RE TALKING ABOUT 400 OF THESE
PICOGRAMS THAT WE MENTIONED AND WE'RE TALKING ABOUT THAT 4 ALLELE
PERHAPS GOING WITH -- WITH A -- AS PART OF THE WEAKER COMPONENT
OF THAT 400.
SO YOU REALLY ARE GETTING DOWN THERE AND YOU'RE
REALLY PUSHING THE SYSTEM TO GUARA -- TO SAY THAT YOU CAN
GUARANTEE THAT YOU'D SEE EVERYTHING FROM THE WEAKER CONTRIBUTION.
THAT'S MY CONCERN, AND I THINK WE WENT THROUGH ALL THIS A COUPLE
DAYS AGO.
Q BUT YOUR CONCERN WOULD APPLY THEN TO POSSIBLE OTHER
-- IF THAT'S YOUR CONCERN, THEN YOU CAN'T RULE OUT THE
POSSIBILITY OF OTHER CONTRIBUTIONS AT LOW LEVELS ON 303, 304,
305?
A WELL, AGAIN, I CAN ONLY TALK ABOUT WHAT I CAN SEE.
AND WHAT I CAN SEE ARE A CERTAIN NUMBER OF ALLELES AND A CERTAIN
NUMBER OF TYPES AND I CAN SEE CERTAIN PATTERNS EMERGING AS I LOOK
ACROSS THE RESULTS OF THIS CASE.
BUT ON ANY PARTICULAR SAMPLE -- FOR EXAMPLE, THERE
COULD BE ONE CELL FROM YOU AND I MIGHT NOT DETECT IT.
Q OKAY.
BUT LET'S JUST LOOK AT WHAT YOU DID SEE ON SAMPLE 29
>FROM THE BRONCO.
A ON SAMPLE 29 NOW FROM THE BRONCO.
Q YES. THE STEERING WHEEL.
A THIS IS THE STEERING WHEEL, RIGHT.
Q AND ALL YOU SAW WAS A 1.1, A 1.2 AND A 4?
A THAT'S CORRECT.
Q YOU DIDN'T SEE A 1.3.
A NO.
Q AND YOU AGREE THAT THE BEST INTERPRETATION OF THE
DATA IS THAT THE GENOTYPE OF THE CONTRIBUTOR OF THE 4 IS EITHER A
1.1, 4, A 1.2, 4 OR A 4, 4?
MR. HARMON: OBJECTION. ASKED AND ANSWERED, ASKED AND
ANSWERED, ASKED AND ANSWERED.
THE COURT: TRUE.
MR. SCHECK: WELL, IF HE WOULDN'T STOP --
Q BY MR. SCHECK: IS THAT TRUE?
MR. HARMON: OBJECTION. ASKED AND ANSWERED.
Q BY MR. SCHECK: WELL, WITHDRAWN. WITHDRAWN. LET'S
JUST GO THROUGH THIS.
IF ONE LOOKS AT THE 1.1, 4, THE 1.2, 4 AND THE 4, 4
--
A OKAY.
Q -- FOR THE CAUCASIAN POPULATION. OKAY?
A OKAY.
Q AND ADD TOGETHER THE FREQUENCIES FOR THOSE GENOTYPES.
A YES.
Q THAT 27.6 PERCENT REPRESENTS THE PERCENTAGE OF THE
POPULATION THAT CANNOT BE EXCLUDED AS THE SOURCE OF THE 4 ALLELE
ON THE STEERING WHEEL?
A WITH ALL THOSE ASSUMPTIONS IN PLACE, YES.
Q ALL RIGHT.
AND WITH RESPECT TO THE AFRICAN-AMERICAN POPULATION,
36.4 PERCENT OF THE POPULATION CANNOT BE EXCLUDED AS THE POSSIBLE
SOURCE OF THE 4 ALLELE ON THE STEERING WHEEL?
A AGAIN, WITH THOSE ASSUMPTIONS, YES.
Q AND LOOKING AT THE HISPANIC POPULATION, 35.2 PERCENT
OF THE HISPANIC POPULATION CANNOT BE EXCLUDED AS THE SOURCE OF
THE 4 ALLELE ON THE STEERING WHEEL?
A THAT'S CORRECT. SAME ASSUMPTIONS.
Q AND I RECALL ON DIRECT EXAMINATION THAT MR. HARMON
ASKED YOU SOME QUESTIONS ABOUT THE PERCENTAGE OF THE POPULATION
THAT COULDN'T BE EXCLUDED AS POSSIBLE SOURCES OF THE 4 ALLELE ON
THE STEERING WHEEL.
MR. HARMON: OBJECTION. THAT MISSTATES THE TESTIMONY.
THE COURT: SUSTAINED.
Q BY MR. SCHECK: DID MR. HARMON ASK YOU SOME QUESTIONS
ABOUT EXCLUDING THE FRONT LINE OF THE SAN ANTONIO SPURS AND THE
LOS ANGELES LAKERS? DO YOU RECALL THAT?
THE COURT: LET'S NOT GET INTO THAT AGAIN.
MR. SCHECK: I DON'T WANT TO GET INTO THOSE --
THE COURT: WE'RE NOT.
Q BY MR. SCHECK: AS YOU SIT HERE, CAN YOU EXCLUDE THE
FRONT LINE OR THE STARTING FIVE OF THE ROBBERY-HOMICIDE SQUAD OF
THE LOS ANGELES POLICE DEPARTMENT AS POSSIBLE CONTRIBUTORS OF THE
4 ALLELE?
THE COURT: I DON'T THINK SO. TRY AGAIN.
Q BY MR. SCHECK: ALL RIGHT.
CAN YOU EXCLUDE -- THESE ARE -- LET'S PUT IT THIS
WAY.
27.6 PERCENT OF THE CAUCASIAN POPULATION IS OVER A
FOURTH?
A YES, IT IS OVER A FOURTH.
Q 36 PER 4 -- 36.4 PERCENT OF THE AFRICAN-AMERICAN
POPULATION IS OVER A THIRD?
A YES, IT IS OVER A THIRD.
Q SAME THING IS TRUE WITH THE HISPANIC POPULATION?
A YES.
Q ALL RIGHT.
AND TO THE EXTENT THAT THOSE POPULATIONS ARE IN
COMBINATION AMONG PERSONNEL IN THE ROBBERY-HOMICIDE SQUAD OF THE
LOS ANGELES POLICE DEPARTMENT, THESE PERCENTAGES WOULD APPLY TO
THEM AS THEY WOULD ANYBODY ELSE?
MR. HARMON: OBJECTION. ASSUMES FACTS NOT IN EVIDENCE, NO
FOUNDATION, CALLS FOR SPECULATION.
THE COURT: SUSTAINED.
MR. SCHECK: ONE SECOND, YOUR HONOR.
(DISCUSSION HELD OFF THE RECORD
BETWEEN DEFENSE COUNSEL.)
Q BY MR. SCHECK: AND, MR. SIMS, IF WE FOLLOW THROUGH
ON THE CAVEAT THAT YOU GAVE US, WOULD THAT BE A FAIR -- NOW, THAT
MAY BE A BAD WORD.
YOU GAVE A QUALIFICATION OF SOME KIND WITH RESPECT TO
YOUR READING ON THE STEERING WHEEL, CORRECT?
A YES.
Q AND YOU'RE SAYING IT'S POSSIBLE THAT THERE MIGHT BE
SOME UNKNOWN ALLELE THAT GOES WITH THE 4?
A I -- I'M SAYING THAT'S A POSSIBILITY THAT I WOULD
CONSIDER.
Q AND IF ONE FOLLOWS THROUGH ON THE POSSIBILITY OF
THEIR BEING AN UNKNOWN ALLELE THAT GOES WITH THE 4 AND FACTORS
THAT IN, THEN THAT WOULD INCLUDE A HUNDRED PERCENT OF THE
CAUCASIAN AND AFRICAN AMERICAN AND HISPANIC POPULATION IF YOU
FACTORED IN AN UNKNOWN ALLELE HERE?
A WELL, IT'S -- IT IS MUCH MORE COMPLEX THAN THAT
BECAUSE YOU DO GET INTO QUESTIONS OF HOW THESE ALLELE SEQUENCES
ARE RELATED TO EACH OTHER AND WHICH ONES YOU MAY SEE THIS
PHENOMENON GOING INTO. SO I'M NOT GOING TO GIVE A BLANKET
STATEMENT TO THAT. IT'S A VERY COMPLEX PART OF THE TECHNOLOGY.
Q WELL, IF YOU ASSUMED THAT THERE IS A POSSIBLE UNKNOWN
ALLELE THAT COULD BE A CONTRIBUTION TO THE MIXTURE IN THE
STEERING WHEEL AND JUST FOLLOWED THAT HYPOTHESIS THROUGH, THE
PERCENTAGE OF THE POPULATION NOT EXCLUDED WOULD BE EVEN LARGER
THAN THE ONES THAT ARE ON THIS CHART?
A WELL, IN THIS PARTICULAR CASE, WHERE I HAVE A 1.1,
1.2 DEMONSTRATED AS A MAIN TYPE, THEN THE MAIN ALLELE I WOULD BE
WORRIED ABOUT WITH THIS PHENOMENON IS THE 1.3 ALLELE, NOT THE 2
ALLELE SO MUCH, NOT THE 3 ALLELE. IT REALLY DOES COME DOWN TO
THE 1.3 ALLELE.
AND THAT'S JUST A COMPLEX PART OF THIS TECHNOLOGY.
IT'S NOT -- IT'S NOT A BLANKET STATEMENT THAT I WOULD JUST THROW
OUT THERE FOR ALL OF THESE ALLELES.
Q I'M ASKING YOU ABOUT JUST THE QUESTION -- AND I
UNDERSTAND THAT'S YOUR EXPLANATION -- JUST THE QUESTION, IF YOU
ASSUME THAT THERE WAS A POSSIBLE UNKNOWN ALLELE, FOLLOWING
THROUGH WITH YOUR HYPOTHESIS, THAT'S NOT BEING DETECTED, THEN IT
WOULD BE CONSISTENT IN TERMS OF CALCULATING THE PERCENTAGES, THAT
THEY WOULD GET EVEN LARGER THAN THOSE THAT ARE PUT ON THE BOARD
AS TO THE POSSIBLE GENOTYPES THAT CAN'T BE EXCLUDED?
A WELL, AGAIN, I -- I -- I THINK THIS BEGS A QUESTION
OF WHAT IF THERE, FOR EXAMPLE, WAS A CELL FROM YOU ON THAT
STEERING WHEEL? I MIGHT NOT DETECT IT.
Q MR. SIMS, COULD YOU ANSWER MY QUESTION?
A WELL, I DON'T UNDERSTAND IT.
MR. HARMON: WELL, YOUR HONOR --
THE COURT: WAIT. WAIT. WAIT. DON'T ARGUE WITH THE
WITNESS.
THE WITNESS: SORRY, YOUR HONOR.
THE COURT: DON'T ARGUE WITH THE LAWYER.
Q BY MR. SCHECK: MR. SIMS, MY QUESTION TO YOU, SIR, IF
YOU ASSUME THAT THERE COULD BE A CONTRIBUTION ON THE STEERING
WHEEL OF AN ALLELE THAT YOU CAN'T SEE -- ARE YOU WITH ME?
A YES.
Q IF YOU WERE TO CALCULATE THE PERCENTAGE OF THE
POPULATION THAT COULDN'T BE EXCLUDED AS CONTRIBUTORS TO THE
STEERING WHEEL, IT WOULD BE EVEN LARGER THAN THE PERCENTAGES FOR
EACH RACIAL GROUP THAN IS DEPICTED ON THIS CHART?
A YES, IT WOULD BE LARGER.
MR. SCHECK: THANK YOU.
NO FURTHER QUESTIONS.
I HAVE TO MARK THIS.
THE COURT: 1171.
(DEFT'S 1171 FOR ID = CHART)
THE COURT: ALL RIGHT.
MR. HARMON, ARE YOU READY TO GO FORWARD OR DO YOU
WANT FIVE MINUTES?
MR. HARMON: 10.
THE COURT: 10 MINUTES?
ALL RIGHT.
ALL RIGHT. LADIES AND GENTLEMEN, WE'RE GOING TO
SWITCH TO REDIRECT BY MR. HARMON. I'LL GIVE HIM 10 MINUTES TO
SET UP.
AND I'LL JUST ASK YOU TO STEP BACK IN THE JURY ROOM,
AND WE'LL CALL YOU OUT AS SOON AS WE'RE READY TO GO.
ALL RIGHT.
MR. SIMS, YOU CAN STRETCH YOUR LEGS.
(RECESS.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER. ALL
PARTIES ARE AGAIN PRESENT.
LET'S HAVE THE JURORS, PLEASE, DEPUTY MAGNERA.
AND, MADAM REPORTER, YOU WANT TO BREAK AT 3:15?
THE COURT REPORTER: OR 3:30.
THE COURT: 3:30?
(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.
LET'S HAVE IT QUIET, PLEASE.
LET THE RECORD REFLECT THAT WE HAVE BEEN REJOINED BY
ALL THE MEMBERS OF OUR JURY.
MR. SIMS, WOULD YOU RESUME THE WITNESS STAND, PLEASE.
ALL RIGHT.
GOOD AFTERNOON AGAIN, MR. SIMS.
MR. HARMON.
MR. HARMON: THANK YOU, YOUR HONOR.
GOOD AFTERNOON, LADIES AND GENTLEMEN.
THE JURY: GOOD AFTERNOON.
REDIRECT EXAMINATION
BY MR. HARMON:
Q MR. SIMS, I WANT TO START OUT ADDRESSING SOME OF THE
ISSUES THAT MR. SCHECK RAISED IN CROSS-EXAMINATION WITH YOU. IS
THAT OKAY?
A OKAY.
Q I NOTICED THAT IN RESPONSE TO MANY OF MR. SCHECK'S
HYPOTHETICALS, YOU GAVE ANSWERS THAT THINGS WERE POSSIBLE.
DO YOU RECALL THAT?
A YES.
Q DID ANY ANSWER THAT YOU GAVE EXPRESSING A POSSIBILITY
TO MR. SCHECK'S HYPOTHETICALS, DID ANY OF THOSE ANSWERS IN ANY
WAY UNDERMIND ANY OF THE RESULTS AND OPINION THAT YOU'VE
PREVIOUSLY ADDRESSED ON DIRECT EXAMINATION?
MR. SCHECK: OBJECTION. SPECULATIVE, ARGUMENTATIVE.
THE COURT: OVERRULED.
THE WITNESS: NO.
Q BY MR. HARMON: AND WHY DID YOU SAY "IT'S POSSIBLE"
SO MANY TIMES?
A WELL, WHEN YOU --
MR. SCHECK: OBJECTION. VAGUE.
THE COURT: OVERRULED.
THE WITNESS: WHEN HYPOTHETICALS ARE CREATED, CERTAINLY YOU
GET TO A POINT WHERE YOU CAN SAY ANYTHING IS POSSIBLE, AND
ANYTHING IS POSSIBLE.
Q BY MR. HARMON: NOW, MR. SIMS, DO YOU REMEMBER MR.
SCHECK ASKED YOU WHETHER OR NOT YOU HAD ANY REASON TO BELIEVE
ROBIN COTTON WAS INVOLVED IN A CONSPIRACY?
A YES.
Q OKAY.
DO YOU HAVE ANY REASON TO BELIEVE GREG MATHESON IS
INVOLVED IN ANY CONSPIRACY TO FRAME THE DEFENDANT IN THIS CASE,
MR. SIMPSON?
A NO.
Q DO YOU HAVE ANY REASON TO BELIEVE THAT DENNIS FUNG IS
INVOLVED IN A CONSPIRACY TO --
MR. SCHECK: OBJECTION. NO FOUNDATION, OUTSIDE THE SCOPE.
THE COURT: SUSTAINED.
Q BY MR. HARMON: MR. SIMS, MR. SCHECK ASKED YOU TO --
IN ANOTHER ONE OF THESE HYPOTHETICALS TO DESCRIBE THE NUMBERS OF
POSSIBLE COMBINATIONS THAT COULD BE ACCOUNTED FOR IN THE STAIN ON
THE CONSOLE, ITEM 303, AND HE ASKED YOU TO ASSUME THAT THE
DEFENDANT'S TYPE, A 1.1, 1.2 IS IN THERE, AND HE GAVE YOU THAT
SHEET.
DO YOU RECALL THAT SHEET?
A YES.
Q AND YOU LOOKED VERY CAREFULLY AT THAT SHEET; DID YOU
NOT?
A YES.
Q AND IT'S TRUE, IS IT NOT, THAT THAT'S ONLY ONE OF THE
MARKERS THAT YOU PERFORMED ON THAT STAIN -- ON THAT STAIN ON 303?
A YES. DQ-ALPHA WAS ONLY ONE OF THE MARKERS WE TESTED
FOR.
Q SO THAT SHEET AND THAT ENTIRE SERIES OF QUESTIONS
IGNORED AN ENTIRE SET OF DATA THAT YOU PRODUCED FROM YOUR
ANALYSES ON THOSE STAINS; DID IT NOT?
A YES, IT DID.
Q BUT LET'S TAKE IT AT FACE VALUE IF YOU WILL, OKAY,
MR. SIMS?
A OKAY.
Q YOU DESCRIBED IGNORING HALF OF THE DATA THAT YOUR LAB
PRODUCED, THAT --
MR. SCHECK: OBJECTION.
THE COURT: REPHRASE THE QUESTION.
Q BY MR. HARMON: YOU'VE DESCRIBED IN NOT ADDRESSING
THE D1S80 DATA THAT YOU PRODUCED IN YOUR TEST TO THAT STAIN, THAT
ONLY TWO OF THE 37 COMBINATIONS WERE CONSISTENT WITH COMBINATIONS
OF THE VICTIMS? IS THAT THE WAY YOU'VE DESCRIBED IT?
A THE WAY THE HYPOTHETICAL WAS PRESENTED, YES.
Q OKAY.
AND LET'S TALK ABOUT POSSIBLE INTERPRETATIONS OF
THOSE 37 RESULTS, ONLY TWO OF WHICH WERE CONSISTENT WITH THE
VICTIMS IN THIS CASE, OKAY?
A OKAY.
Q COULD THAT MEAN THAT THERE WERE 35 OTHER PEOPLE
KILLED THAT NIGHT WHOSE BLOOD WAS IN THAT CAR?
MR. SCHECK: OBJECTION.
THE COURT: SUSTAINED.
MR. SCHECK: ARGUMENTATIVE.
THE COURT: REPHRASE THE QUESTION.
Q BY MR. HARMON: COULD THAT MEAN THAT THERE WERE 35
OTHER DEAD PEOPLE WHOSE BLOOD WAS FOUND ON THAT CONSOLE IN THAT
CAR?
MR. SCHECK: OBJECTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: COULD THAT MEAN THAT THERE WERE 35
OTHER DECEASED PEOPLE WHOSE BLOOD WAS FOUND IN THE STAIN IN 303?
MR. SCHECK: OBJECTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: DOES THAT MEAN THAT THERE WERE 35
OTHER LIVING PEOPLE WHOSE BLOOD WAS FOUND ON THAT STAIN IN THE
CAR?
THE COURT: 35 OTHER PERSONS WHO MAY HAVE CONTRIBUTED WITH
DIFFERENT GENOTYPES.
THE WITNESS: YES.
Q BY MR. HARMON: OKAY.
FOR EXAMPLE, YOU CAN'T EXCLUDE THE POSSIBILITY THAT
35 OTHER PEOPLE WITH DIFFERENT GENOTYPES HAD NOSEBLEEDS ON THAT
SAME SPOT ON THE CONSOLE, CAN YOU?
A WELL, AGAIN, THEY'D HAVE TO MISS THE SUBSTRATE
CONTROL AREA, BUT THAT'S TRUE.
Q OKAY.
IS THERE SOMETHING FUNNY ABOUT BRONCOS THAT MIGHT
CAUSE NOSEBLEEDS LIKE THAT?
MR. SCHECK: WELL, YOUR HONOR --
THE COURT: SUSTAINED.
Q BY MR. HARMON: MR. SCHECK ASKED YOU AND YOU
STRUGGLED TO TRY TO THINK OF A CASEWORK EXPERIENCE YOU'VE HAD --
MR. SCHECK: YOUR HONOR --
THE COURT: SUSTAINED.
WHY DON'T YOU REPHRASE IT WITHOUT THE
CHARACTERIZATION.
MR. HARMON: SURE.
Q BY MR. HARMON: REMEMBER MR. SCHECK ASKED YOU WHETHER
OR NOT YOU'D HAD AN ACTUAL CASE WHERE YOU HAD BLOOD MIXTURES?
MR. SCHECK: OBJECTION. THAT'S NOT WHAT I ASKED HIM.
PROFICIENCY TESTS.
THE COURT: OVERRULED.
IN THE CONTEXT OF PROFICIENCY TESTING.
Q BY MR. HARMON: WELL, AND THEN YOU WENT ON -- HE WENT
ON, AND I BELIEVE YOU SAID YOU THOUGHT YOU'D ENCOUNTERED SUCH A
THING IN CASEWORK.
DO YOU RECALL THAT?
THE COURT: LET'S HAVE HIM --
MR. SCHECK: YOUR HONOR, OBJECTION. I ONLY ASKED HIM ABOUT
PROFICIENCY TESTS.
THE COURT: SUSTAINED.
Q BY MR. HARMON: HAVE YOU EVER ENCOUNTERED A BLOOD
MIXTURE IN ACTUAL CASEWORK?
A YES, I HAVE.
Q COULD YOU EXPLAIN THE SCENARIO OR THE SETTING OF THAT
CASE?
A YES. THE --
MR. SCHECK: OBJECTION. BEYOND THE SCOPE.
THE COURT: OVERRULED.
THE WITNESS: THE SCENARIO, AS I RECALL IT, WAS, AN
INDIVIDUAL WAS BEATEN WITH A WEAPON, A BLUNT OBJECT THAT CAUSED A
LOT OF BLEEDING OF THE VICTIM, AND THE ISSUE WAS WHETHER OR NOT
WE COULD FIND SOME OF THE PERPETRATOR'S TYPE WHO ALSO WE THOUGHT
MIGHT BE BLEEDING ON THAT PARTICULAR WEAPON, THAT PERHAPS HAD PUT
THE HANDLE IN, AND WE WERE ABLE TO SHOW THAT THERE WAS A MIXTURE
OF VICTIM AND PERPETRATOR BLOOD AND IT DID HAPPEN THAT THE BLOOD
THEN DID MATCH ALSO THE PERPETRATOR'S TYPE OR -- I'M SORRY -- OR
THE SUSPECT'S TYPE.
SO THOSE THINGS WILL HAPPEN, YES.
Q BY MR. HARMON: SO IN THE CONTEXT OF THAT CASE, IT
WAS THE MIXTURE OF THESE TWO COINCIDENTAL TYPES THAT WERE
SIGNIFICANT TO YOU; IS THAT RIGHT?
A YES.
Q AND IT IS A CHALLENGE TRYING TO SORT THOSE THINGS
OUT, IS IT NOT, WHEN THEY'RE BLOOD MIXTURES?
A YES, IT IS. AND THAT'S WHY I THINK IT'S IMPORTANT TO
LOOK AT ALL THE DATA.
Q ALL THE DIFFERENT MARKERS THAT YOU TEST?
A ALL THE DIFFERENT MARKERS AND ALL THE RESULTS.
Q AND IN THE CONTEXT OF THAT CASE, YOU FOUND THE
VICTIM'S BLOOD ON SOMETHING ASSOCIATED WITH THE SUSPECT?
A YES. THAT WAS IT.
Q AND THEN THE SUSPECT'S OWN BLOOD MIXTURE ON SOMETHING
ASSOCIATED WITH HIM?
A YES. THAT WAS IT BASICALLY.
Q OKAY.
JUST TO DIGRESS FOR A SECOND, IF YOU SAW MR.
SIMPSON'S TYPE IN A STAIN AND YOU WERE UNABLE TO SEE A C DOT
THERE, HOW WOULD YOU REPORT THAT?
A IN OUR LABORATORY, WE WOULD NOT CONSIDER THAT TO BE A
TYPEABLE RESULT. WE WOULD NOTE THE TYPES, BUT WE WOULD NOT
CONSIDER IT TO BE A REPORTABLE RESULT.
Q OKAY.
NOW, MR. SCHECK ASKED YOU WHETHER OR NOT YOUR TESTS
CAN SHOW THE ORDER OF DEPOSITION OR WHEN OR THE ORDER OF
DEPOSITION ON THE CONSOLE.
DO YOU RECALL THAT?
A YES.
Q IN FACT, REGARDLESS OF WHEN OR HOW OR THE SEQUENCE OF
EVENTS THAT CAUSED STAINS TO BE DEPOSITED THERE, IF YOUR TESTS
SHOWED THE TYPES THAT ARE ACTUALLY THERE, THEY PERFORM
SUCCESSFULLY; IS THAT TRUE?
MR. SCHECK: OBJECTION. MOVE TO STRIKE THE
CHARACTERIZATION.
THE COURT: OVERRULED.
THE WITNESS: I WOULD SAY YES.
Q BY MR. HARMON: FOR EXAMPLE, THE STEERING WHEEL, CAN
YOU TELL WHEN OR THE ORDER THOSE STAINS OR THOSE ACTUAL
BIOLOGICAL MATERIALS WERE DEPOSITED THERE?
A NO.
Q AND MR. SCHECK'S -- THE HANDWRITTEN CHART WITH THOSE
LARGE NUMBERS ON IT, DO THOSE NUMBERS ALSO IGNORE SOME OF THE
DATA THAT WAS PRODUCED IN THIS CASE -- ON THAT STAIN?
MR. SCHECK: OBJECTION.
THE COURT: REPHRASE THE QUESTION.
MR. SCHECK: MOVE TO STRIKE.
THE COURT: REPHRASE THE QUESTION.
Q BY MR. HARMON: IS THERE OTHER DATA THAT WAS PRODUCED
AS A RESULT OF YOURS AND CELLMARK'S TESTING ON THE STEERING WHEEL
THAT COULD TEND TO CONTRIBUTE TO THE FREQUENCIES THAT YOU
CALCULATED?
A WELL, YES. THERE WAS DATA GENERATED BY CELLMARK WITH
REGARDS TO THE POLY-MARKER.
Q IS YOUR OPINION AS IT WAS WHEN YOU TESTIFIED LAST
WEEK CONCERNING BEING UNABLE TO SAY THAT THE 1.3 ALLELE IS NOT
THERE?
A CAN YOU REPHRASE THAT AGAIN?
Q SURE.
IS YOUR CONCERN OR YOUR OPINION ABOUT THE RESULTS OF
29, THE STEERING WHEEL STAIN, IS IT AS YOU EXPRESSED IT LAST
WEEK; THAT YOU CAN NOT SAY THAT BECAUSE OF THE LOW AMOUNT OF DNA
THAT WAS IN THAT SAMPLE, THAT THE 1.3 ALLELE IS NOT THERE?
A THAT'S CORRECT. IN OTHER WORDS, I CAN NOT
UNEQUIVOCALLY SAY THAT WE WOULD HAVE SEEN THE 1.3 ALLELE IN THAT
TEST.
Q AND IN THAT REGARD, IN THAT CONTEXT, INCLUDING ALL
THE DATA THAT WAS PRODUCED IN THIS CASE, WHAT IS THE SIGNIFICANCE
OF MR. SCHECK'S HANDWRITTEN CHART SUMMING UP FREQUENCIES?
MR. SCHECK: OBJECTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION, SIGNIFICANCE.
Q BY MR. HARMON: WHAT IS THE FORENSIC SIGNIFICANCE OF
THE SUMMED-UP CHART --
MR. SCHECK: MOVE TO STRIKE.
THE COURT: NO. IT'S NOT A MOTION TO STRIKE. IT'S AN
OBJECTION.
REPHRASE THE QUESTION.
MR. SCHECK: OBJECTION.
Q BY MR. HARMON: IN YOUR OPINION, DOES MR. SCHECK'S
CHART IN LIGHT OF THE CONCERN THAT YOU -- OR THE LIMITATION OR
THE RESERVATION YOU HAVE ABOUT 29, WHAT DOES THE CHART MEAN WHEN
IT SUMS UP ALL THE FREQUENCIES?
MR. SCHECK: OBJECTION. OBJECTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION. THE QUESTION IS
UNINTELLIGIBLE.
Q BY MR. HARMON: DO THOSE FREQUENCIES REFLECT ANYTHING
SIGNIFICANT IN YOUR OPINION WITH REGARD TO THE RESULTS THAT YOU
OBTAINED FROM STEERING WHEEL ITEM NO. 29?
MR. SCHECK: OBJECTION. MOVE TO STRIKE, ARGUMENTATIVE.
FREQUENCIES ARE THE FREQUENCIES.
THE COURT: MOTION TO STRIKE THE QUESTION IS NOT
APPROPRIATE IN CALIFORNIA, COUNSEL.
MR. SCHECK: MY APOLOGIES.
OBJECTION.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: OKAY.
DO THOSE FREQUENCIES REFLECT ANYTHING IN RELATION TO
YOUR OPINION AND YOUR RESERVATION ABOUT THE RESULTS ON ITEM 29
>FROM THE STEERING WHEEL?
MR. SCHECK: OBJECTION.
THE COURT: REPHRASE THE QUESTION.
Q BY MR. HARMON: WHAT IF ANYTHING DO THOSE FREQUENCIES
REFLECT IN LIGHT OF YOUR RESERVATIONS ABOUT YOUR TEST RESULTS
>FROM ITEM 29?
MR. SCHECK: STILL OBJECTION.
THE COURT: MR. SIMS, YOU SAW THAT CHART?
THE WITNESS: YES.
THE COURT: YOU INDICATED THAT YOU HAD SOME CONCERN ABOUT
THE NUMBERS THAT WERE THERE, THE ASSUMPTIONS THAT WERE BEHIND IT.
THE WITNESS: YES. MY CONCERN WAS JUST THAT -- WITH THE
ASSUMPTION.
THE COURT: WHAT ASSUMPTION CONCERNS YOU IN RENDERING THAT
OPINION?
THE WITNESS: WELL, WHAT CONCERNED ME WAS THAT I AGAIN
COULDN'T ABSOLUTELY RULE OUT THE POSSIBILITY OF THE 1.3 ALLELE
NOT BEING DETECTED IN THAT WEAK MIXTURE. THAT'S ALL.
THE COURT: PROCEED.
MR. HARMON: THANK YOU, YOUR HONOR.
MAY WE SEE DEFENDANT'S EXHIBIT 1166 ON THE ELMO, YOUR
HONOR?
THE COURT: YES. MR. FAIRTLOUGH.
THIS IS THE DOT BLOT PHOTO.
(BRIEF PAUSE.)
Q BY MR. HARMON: MR. SIMS, YOU RECOGNIZE THAT WHEN YOU
SAW 1166, THAT'S DR. BLAKE'S PHOTO; IS THAT RIGHT?
A YES. I BELIEVE THAT ONE WAS, 1166, YES.
Q BUT THE HANDWRITING ON THERE IS YOUR HANDWRITING?
A THE -- THE WRITING ON THOSE STRIPS IS BY RENEE
MONTGOMERY.
Q LET'S START AT THE TOP AND DESCRIBE THE ITEMS SO THAT
THE JURY CAN APPRECIATE ALL THE RESULTS THAT ARE CONTAINED ON
EXHIBIT 1166.
DNA 17, WHAT LAPD ITEM DOES THAT CORRESPOND WITH?
MR. HARMON: MAY WE HAVE THE -- MIGHT BE HARD -- THE BUNDY
OR THE BRONCO BOARD UP THERE?
(BRIEF PAUSE.)
Q BY MR. HARMON: MR. SIMS, WHILE WE'RE GETTING TO
THAT, IN SPITE OF ALL THE QUESTIONS THAT MR. SCHECK ASKED YOU
ABOUT DEFENSE EXHIBIT 1166, DO YOU HAVE ANY DOUBT ABOUT THE
RESULTS THAT YOU EXPRESSED ON DIRECT EXAMINATION?
A NO. I WAS CONFIDENT OF ALL THE CALLS WE MADE ON THIS
RUN.
Q IN FACT, FOCUSING ON EXHIBIT 1166 IGNORES ALL OF THE
D1S80 RESULTS WHICH WERE PRODUCED FROM ANALYSIS OF THESE SAMPLES?
IS THAT TRUE?
MR. SCHECK: OBJECTION TO THE CHARACTERIZATION OF THE WORD
"IGNORES."
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: MR. SCHECK'S DISCUSSION OF DEFENSE
EXHIBIT 1166 DOES NOT TAKE INTO ACCOUNT ANY OF THE D1S80 RESULTS
ON THE ITEMS THAT WERE ANALYZED THAT ARE LISTED ON 1166?
MR. SCHECK: OBJECTION. OBJECTION TO THE PHRASING OF THIS
QUESTION.
THE COURT: SUSTAINED. IT'S LEADING.
Q BY MR. HARMON: WHAT IF ANYTHING DO THE D1S80 RESULTS
CONTRIBUTE TO YOUR UNDERSTANDING AND YOUR EXPRESSION OF THE
RESULTS THAT ARE REFLECTED ON 1166, SIMPLY THE DQ-ALPHA STRIPS?
A WELL, AGAIN, WE LOOK TO THE CONSISTENCY OF THE
ADDITIONAL SYSTEMS THAT WERE TESTED; AND IN THIS CASE, IT WOULD
BE D1S80.
Q OKAY.
WHILE YOU'RE LOOKING THERE -- LET'S LOOK AT EVERY
ALTERNATE STRIP IF WE WOULD, STARTING FROM THE SECOND FROM THE
TOP.
DNA 17C, THAT'S A SUBSTRATE CONTROL?
A YES. DNA 17C, THAT'S CUT OFF A LITTLE BIT BY THE
POST-IT, BUT THAT'S THE SUBSTRATE CONTROL, YES.
Q AND THERE'S NO TYPEABLE ACTIVITY IN THERE; IS THAT
RIGHT?
A THAT'S CORRECT. NO DOTS LIGHT UP AT ALL.
Q AND WHAT DOES THAT MEAN?
A THAT MEANS THAT NO ACTIVITY -- NO DNA WAS DETECTED IN
THE SUBSTRATE CONTROL FOR THAT PARTICULAR SAMPLE.
Q OKAY.
AND LET'S MOVE DOWN TO DNA 18 CONTROL. THAT IS THE
BRONCO CENTER CONSOLE 31 SUBSTRATE CONTROL?
A YES.
Q AND THAT -- AGAIN, WOULD YOU DESCRIBE THOSE RESULTS?
A YES. THAT CONTROL ON DNA 18, WHICH IS 31 LAPD, AGAIN
TOTALLY NEGATIVE, NO DOTS LIGHT UP AT ALL.
Q AND DNA 29 WHICH CORRESPONDS TO LAPD 293, THE BRONCO
CARPET, DRIVER'S SIDE THAT WAS CONSISTENT WITH NICOLE BROWN, IS
THAT SUBSTRATE CONTROL -- WHAT RESULT DOES THAT PRODUCE?
A AGAIN, THE SUBSTRATE CONTROL FOR THAT ITEM IS TOTALLY
NEGATIVE. NO DOTS WERE SEEN.
Q AND JUMPING ANOTHER STRIP DOWN TO THE LANE OR THE
LABEL DNA 30 CONTROL, IS THAT THE SUBSTRATE CONTROL FOR LAPD ITEM
305 ON THE CENTER CONSOLE?
A YES, IT IS.
Q AND THAT SUBSTRATE CONTROL PRODUCED NO TYPEABLE
RESULTS; IS THAT TRUE?
A THAT'S CORRECT. NO DOTS. NOT JUST NO TYPEABLE
RESULTS, BUT NO DOTS PERIOD.
Q NO DOTS WHATSOEVER. AND WE'LL DISCUSS SUBSTRATE
CONTROLS IN A WHILE.
DO THESE SUBSTRATE CONTROL STRIP RESULTS SHOW THAT
THERE WAS OR THAT THERE WAS NO TYPEABLE ACTIVITY ON ALL OF THOSE
STRIPS AND ALL OF THOSE STAINS?
A THAT'S CORRECT.
Q OKAY.
NOW, LET'S START OUT WITH DNA 17.
WHAT WAS YOUR RESULT ON THAT?
A THE TYPE FOR THAT WAS 1.1, 1.2.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MR. HARMON: DNA 18?
A ON DNA 18, THAT WAS -- NOW, THAT WAS A MIXTURE OF
TYPES WITH THE MAIN TYPE BEING A 1.1, 1.2 WITH THE WEAKER TYPE
BEING A 1.3, 4.
AND WHAT MADE THIS ONE MORE DIFFICULT WAS THE
ASSESSMENT OF WHETHER OR NOT THE 1.2 ALLELE WAS REALLY THERE. I
THINK WE TALKED ABOUT THIS EARLIER, THAT THERE'S NOT A DISTINCT
SEPARATE PROBE FOR THE 1.2 ALLELE. SO YOU HAVE A DOT THERE, THE
1.2, 1.3, 4 DOT, THAT CAN BE LIT UP BY ANY OF THOSE THREE PROBES.
AND THE KEY HERE THAT WE -- AND ADMITTEDLY, THIS ONE
WAS ONE WHERE WE HAD TO TAKE A HARD LOOK AT -- WAS THAT THAT
INTENSITY IS SO GREAT IN THAT 1.2, 1.3, 4 DOT THAT THE 4 AND THE
1.3 ALONE WOULD NOT PRODUCE A DOT OF THAT INTENSITY. SO WE MADE
THE DETERMINATION FROM THAT THAT WE FELT THAT THE 1.2 ALLELE WAS
PRESENT WHICH MEANT THAT THE MAIN TYPE WAS 1.1, 1.2 AND THAT THE
WEAKER COMPONENTS WERE 1.3, 4.
Q AND D1S80 RESULTS ON THAT STAIN?
A ON DNA 18?
Q YES.
A THAT WAS THE -- WE FOUND BOTH THE 24 AND THE 25
ALLELES PRESENT.
Q AND MR. GOLDMAN IS A 24, 24?
A THAT'S CORRECT.
Q MR. SIMPSON IS A 24, 25?
A THAT'S CORRECT.
Q AND THAT NARROWS DOWN THE POSSIBILITIES WHEN YOU
INCLUDE THAT?
A YES, IT DOES SIGNIFICANTLY.
Q AND LET'S MOVE ON THEN TO DNA 29.
A OKAY.
ON DNA 29 -- EXCUSE ME.
THE -- THE CALL ON DNA 29 -- AND THIS IS ACTUALLY
LAPD NO. 293. THE MAIN -- THE CALL THERE WAS THAT THAT -- THE
MAIN TYPE WAS A 1.1, 1.1 AND THERE'S -- IT'S -- IT'S HARD TO SEE
ON MINE, BUT THERE WAS -- THERE WAS A LITTLE BIT OF ACTIVITY AT
THE -- AT THE 1.2, 1.3, 4 DOT. SO WE INTERPRETED THAT TO BE A
1.1, 1.1 WITH A POSSIBLE TRACE OF 1.2.
Q AND THERE'S NONE OF THIS FUNNY STUFF WITH THE 1.3 DOT
ON THIS STRIP, IS THERE?
A ON THAT STRIP?
Q YES.
A NO. IT WAS NEGATIVE.
Q LET'S MOVE ON TO DNA 30 THEN.
A OKAY. FOR DNA 30, THIS IS LAPD NO. 305.
NOW, IN THIS PARTICULAR CASE -- THIS IS WHERE WE
TALKED ABOUT THE TOUGH CALL.
IF YOU CONTRAST DNA 30 WITH DNA 18, YOU CAN NOW SEE
THAT THERE IS A 1.1 DOT, THERE'S A 1.3 DOT, THERE'S A 4 DOT, BUT
NOW THE QUESTION IS, IS THE 1.2 ALLELE DEFINITELY PRESENT. AND
WE ARGUED -- WELL, WE DISCUSSED IT.
WE DECIDED THAT NO, YOU COULD NOT DEFINITELY SAY THAT
THE 1.2 ALLELE WAS PRESENT BECAUSE THAT 4 DOT AND THE 1.3 DOTS
COULD POSSIBLY GIVE AN INTENSITY SIMILAR TO THAT. SO THAT'S WHY
ON OUR CHART, WE SEE OVER THERE POSSIBLE 1.2.
Q OKAY.
MR. SCHECK ASKED YOU WITH REGARD TO RESULTS ON
DEFENSE EXHIBIT 1166 -- OR STRIKE THAT.
HE ASKED WITH REGARD TO ONE OF THE OTHER SETS OF
STRIPS. COULD ANOTHER TRAINED EYE DISAGREE WITH YOU? DO YOU
RECALL THAT QUESTION?
A YES.
Q HAS ANY OTHER TRAINED EYE DISAGREED WITH YOU?
MR. SCHECK: OBJECTION. HEARSAY.
THE COURT: AS TO THESE RESULTS?
MR. SCHECK: YES.
THE COURT: SUSTAINED.
Q BY MR. HARMON: WOULD YOU LIKE TO SEE ANOTHER TRAINED
EYE DISAGREE WITH YOU ON THOSE RESULTS?
MR. SCHECK: WELL --
THE COURT: OVERRULED.
MR. SCHECK: ARGUMENTATIVE.
THE COURT: OVERRULED.
THE WITNESS: I'D BE HAPPY TO DISCUSS ANY RESULT WE
GENERATED IN THIS CASE WITH ANY OTHER EXPERT.
Q BY MR. HARMON: HAS ANYONE HAD THAT DISCUSSION WITH
YOU?
MR. SCHECK: OBJECTION. CALLS FOR HEARSAY.
THE COURT: OVERRULED.
YES OR NO? HAVE YOU DISCUSSED THESE RESULTS WITH ANY
OTHER EXPERTS OTHER THAN MISS MONTGOMERY.
THE WITNESS: NO. NO, OTHER THAN PEOPLE IN OUR
LABORATORIES AS I MENTIONED AS PART OF THE TEAM.
Q BY MR. HARMON: AND IF SOME TRAINED EYE DISCUSSED IT
WITH YOU, COULD THEY ALSO RETEST WITH THE REMAINING EVIDENCE IN
THIS CASE?
MR. SCHECK: OBJECTION. MOVE TO STRIKE. HE'S CALLING FOR
HEARSAY ABOUT TRAINED EYES.
THE COURT: OVERRULED. BUT THE QUESTION WAS REGARDING
RETESTING.
THE WITNESS: YES. IF SOMEBODY DISAGREED WITH THESE
RESULTS, THEN THEY COULD RETEST THE EVIDENCE. THEY COULD REQUEST
THE EXTRACTED DNA. THEY COULD RETEST THE PRODUCT, THE PCR
PRODUCT.
Q BY MR. HARMON: MR. SCHECK DISCUSSED IN THE CONTEXT
OF THIS STRIP THE POSSIBILITY OF PCR CARRYOVER.
DO YOU RECALL THAT?
A YES.
Q PCR PRODUCT CARRYOVER?
A YES.
Q AND DO YOU SEE ANY SIGNS OF PCR PRODUCT CARRYOVER IN
ANY OF THE SUBSTRATE CONTROLS OR ANY OF THE NEGATIVE CONTROLS IN
THIS CASE?
A NO, I DID NOT.
Q AND I BELIEVE YOU SAID THIS IS DR. BLAKE'S PHOTO?
A YES, I BELIEVE THIS ONE IS.
Q THE DEFENSE EXPERT IN THIS CASE?
A YES.
Q WERE YOU PRESENT WHEN HE TOOK THE PHOTO?
A YES, I BELIEVE HE WAS BECAUSE HE WAS ALSO PRESENT AT
THE READING OF THAT --
Q WERE THOSE TWO SEPARATE -- I'M SORRY.
A HE WAS PRESENT AT THE READING OF THESE STRIPS. WE
TOOK OUR PHOTO AND THEN I BELIEVE HE TOOK HIS PHOTO, BUT I'D HAVE
TO CHECK MY NOTES ON THAT.
Q COULD YOU DO THAT?
A (WITNESS COMPLIES.)
I -- I BELIEVE IT WAS PHOTOED AT THAT SAME TIME. I
-- YES. I DO BELIEVE IT WAS.
Q AT THE SAME TIME?
A WELL, RIGHT AFTER WE MADE OUR PHOTOGRAPH. THAT'S MY
RECOLLECTION.
Q OKAY.
AND THROUGHOUT THIS WHOLE PHOTOGRAPHY AND READING
PROCESS, HAVE YOU CONSISTENTLY INTERPRETED THE STRIPS THE WAY
YOU'VE DESCRIBED YOUR CONCLUSIONS TO THIS JURY?
A YES.
Q AND ALSO INCLUDING THE D1S80 RESULTS?
A YES.
Q AND NOTHING HAS HAPPENED TO SWAY YOUR OPINION AT ALL;
IS THAT CORRECT?
A NO.
Q LET'S MOVE TO DEFENSE EXHIBIT 1168.
(BRIEF PAUSE.)
Q BY MR. HARMON: NOW, DO YOU REC -- I BELIEVE YOU SAID
YOU RECOGNIZE THE HANDWRITING ON THIS ONE?
A YES, I DO.
Q THAT'S DR. BLAKE'S HANDWRITING?
A YES. THAT LOOKS LIKE DR. BLAKE'S HANDWRITING AT THE
TOP AND ON THE RIGHT SIDE.
Q WHAT SORTS OF CONTACT DID YOU HAVE WITH DR. BLAKE
WITH RESPECT TO THE SET OF STRIPS THAT WERE RUN THAT ARE
REFLECTED ON DEFENSE EXHIBIT 1168?
A CAN YOU REPHRASE THAT QUESTION FOR ME, PLEASE?
Q SURE.
WHAT WERE THE NATURE OF YOUR CONTACTS WITH DR. BLAKE?
I'M NOT ASKING YOU TO DESCRIBE CONVERSATIONS.
WHAT KINDS OF CONTACTS DID YOU HAVE WITH REGARD TO
THE STRIPS THAT ARE SHOWN IN DEFENSE EXHIBIT 1168?
A WELL, DR. BLAKE PHOTOGRAPHED THESE RESULTS IN OUR
LABORATORY. AGAIN, I'D WANT TO CHECK BECAUSE THERE WERE A COUPLE
TIMES WHEN HE CAME BACK AND PHOTOGRAPHED OUR PHOTOS, LIKE THERE
WAS SOME GLARE PROBLEMS OR SOMETHING LIKE THAT.
SO I THINK -- I THINK THOUGH ON THIS PARTICULAR ONE,
HE WAS PROBABLY PRESENT. BUT IF I COULD HAVE ONE SECOND, I'LL
CHECK ON THAT.
Q SURE.
MR. SCHECK: YOUR HONOR, WHILE HE'S DOING THAT, CAN WE
APPROACH FOR A SECOND ABOUT A MATTER?
THE COURT: NO.
MR. SCHECK: 1054 MATTER.
THE COURT: NO.
MR. HARMON: YOUR HONOR, COULD WE HAVE 259, THE BUNDY
BOARD, UP THERE NOW?
(BRIEF PAUSE.)
THE WITNESS: NO. IT'S NOT CLEAR EXACTLY WHEN THAT
PHOTOGRAPH WAS TAKEN BY HIM.
Q BY MR. HARMON: OKAY.
WAS HE PRESENT WHEN YOU READ THOSE STRIPS?
A I DON'T BELIEVE HE WAS. I DON'T -- I DIDN'T RECORD
THAT. SO I DON'T THINK HE WAS.
Q WHEN YOU ACTUALLY READ THEM, ARE YOU WRITING THEM
DOWN, THE RESULTS, ON SOME SORT OF PIECE OF PAPER?
A WELL, THE WAY IT'S DONE IS, WE HAVE A RUN SHEET WHERE
YOU FILL OUT THE RESULTS FOR EACH ONE OF THESE DOTS AND THE --
THE PRIMARY ANALYST, THE ONE WHO DOES THE ACTUAL RUN, WRITES DOWN
HIS OR HER RESULTS.
AND THEN WHAT HAPPENS IS, THE SECOND READER COMES
ALONG, LOOKS AT JUST THE STRIPS AND TELLS THE PRIMARY ANALYST
WHAT HIS OR HER INTERPRETATIONS ARE. SO WE HAVE TWO SEPARATE
READINGS OF THESE -- OF THESE STRIPS.
Q OKAY.
AND AT A LATER POINT, YOU SHOW ALL THOSE THINGS TO
DR. BLAKE?
A WELL, YES. IN OTHER WORDS, DR. BLAKE WOULD REVIEW
THE STRIPS.
Q AND AGAIN -- WELL, STRIKE THAT.
MR. SCHECK: MOVE TO STRIKE, UNREVIEWED, THE IMPLICATION.
I WANT TO APPROACH.
THE COURT: OVERRULED. NO.
Q BY MR. HARMON: NOW, MR. SCHECK SPENT QUITE A BIT OF
TIME ABOUT WHETHER OR NOT THE 1.3 WAS AN ARTIFACT.
DO YOU RECALL THOSE SERIES OF QUESTIONS?
A YES.
Q AND YOU FEEL THAT IT IS; IS THAT CORRECT?
A ON THAT PARTICULAR SAMPLE, I BELIEVE IT IS, YES.
Q OKAY.
AND WE'LL TALK ABOUT YOUR REHYBRIDIZATION IN A COUPLE
MINUTES.
BUT DO CELLMARK'S DQ-ALPHA, POLY-MARKER AND RFLP
RESULTS CORROBORATE YOUR OPINION THAT THE 1.3 ALLELE THAT YOU
DETECTED OR THE 1.3 ARTIFACT THAT YOU DETECTED IN THAT STRIP IS
IN FACT AN ARTIFACT?
MR. SCHECK: OBJECTION. IRRELEVANT.
THE COURT: OVERRULED.
THE WITNESS: YES, THEY DO CORROBORATE THAT.
Q BY MR. HARMON: AND WOULD IT BE SOUND SCIENTIFIC
PRACTICE TO FOCUS ON THE FIRST OF TWO HYBRIDIZATION STRIPS TO
DEBATE ABOUT WHETHER OR NOT THE 1.3, WHICH IS SEEN ON THE STRIP
ON 1168, IS AN ARTIFACT WHEN THAT ISSUE IS RESOLVED BY ANOTHER
LABORATORY'S DQ-ALPHA, POLY-MARKER AND RFLP RESULTS?
MR. SCHECK: OBJECTION.
THE COURT: THE QUESTION IS ARGUMENTATIVE.
Q BY MR. HARMON: WHAT IMPACT DO -- OR COULD YOU
EXPLAIN THE IMPACT THAT CELLMARK'S DQ-ALPHA, POLY-MARKER AND RFLP
RESULTS HAVE ON THE DISCUSSION YOU HAD WITH MR. SCHECK ABOUT THE
1.3 ARTIFACT THAT MIGHT HAVE BEEN ON THE STRIP REFLECTED BY NO.
52 ON EXHIBIT 1168?
A WELL, IT DOESN'T -- AS FAR AS THE INTERPRETATION OF
THAT PARTICULAR DATA, THAT'S -- I REPEATED THAT RESULT BECAUSE OF
THE OVERALL PATTERN THAT I SAW ON THE STRIPS. BUT THE -- IT
DOESN'T -- THE FINAL INTERPRETATION IS CONSISTENT WITH THAT BEING
AN ARTIFACT.
Q AND BY THAT, CELLMARK'S DQ-ALPHA RESULTS WERE WHAT?
A THEY WERE 1.1, 1.2.
Q NOT A MIXTURE?
A I -- THAT'S MY RECOLLECTION.
Q AND THEIR POLY-MARKER RESULTS?
A I BELIEVE THEY WERE ALSO --
MR. SCHECK: OBJECTION. MOVE TO STRIKE. HE CAN'T COMMENT
ON POLY-MARKERS FOR ME.
THE COURT: SUSTAINED.
Q BY MR. HARMON: ASSUME HYPOTHETICALLY CELLMARK'S
POLY-MARKER RESULTS INCLUDED MR. SIMPSON. WOULD THAT CORROBORATE
THE FACT THAT THE 1.3 WAS AN ARTIFACT?
A YES.
Q AND ALSO, WE CAN'T FORGET YOUR D1S80 RESULTS.
WERE THEY CORROBORATIVE OF THE FACT THAT THAT STAIN
WAS CONSISTENT WITH MR. SIMPSON AND DID NOT APPEAR TO BE A
MIXTURE?
A YES. WHEN WE LOOKED AT AN ADDITIONAL SYSTEM, WE SAW
NO EVIDENCE THAT THERE WAS A WEAK COMPONENT IN A MIXTURE.
Q NOW, AGAIN, OTHER TRAINED EYES COULD DISAGREE WITH
YOU, COULDN'T THEY?
A YES.
Q HAVE ANY OTHER TRAINED EYES DISAGREED WITH YOU?
A NO.
MR. SCHECK: OBJECTION. SAME OBJECTION AS BEFORE, HEARSAY.
THE COURT: OVERRULED.
Q BY MR. HARMON: AND HAS ANYTHING HAPPENED SINCE YOU
FIRST INTERPRETED THE DQ-ALPHA STRIP FOR YOUR DNA ITEM 55A, WHICH
IS LAPD 52, WHICH IS ON THE PROJECTION SCREEN AS DEFENSE EXHIBIT
1168, THAT CAUSES YOU TO QUESTION THAT THAT IS A 1.1, 1.2?
A NO.
Q OKAY. BUT NONETHELESS, YOU REHYBRIDIZED IS; IS THAT
TRUE?
A YES. IN OTHER WORDS, WITHIN OUR OWN LABORATORY, WE
CHECKED IT OUT.
Q OKAY.
BUT BEFORE WE MOVE ON TO THAT, YOU MENTIONED A COUPLE
OF TIMES THAT THIS WAS A TOUGH CALL FOR YOU.
DO YOU RECALL THAT?
A YES.
Q AND WOULD YOU EXPLAIN WHAT YOU MEAN OR WHAT YOU MEANT
BY THAT TO THE JURY?
MR. SCHECK: OBJECTION. ASKED AND ANSWERED ALREADY ON
REDIRECT.
THE COURT: I THINK WE'VE ASKED THAT ALREADY.
Q BY MR. HARMON: HAVE YOU ALREADY ANSWERED THAT
QUESTION?
A I THINK WE TALKED ABOUT IT IN THE CONTEXT OF THAT
OTHER -- THAT OTHER STAIN, WHICH WAS REALLY THE TOUGH CALL ABOUT
WHETHER OR NOT THE 1.1 AND THE 1.2 WERE TOGETHER IN THAT STAIN.
MR. HARMON: OKAY.
WELL, LET'S -- CAN WE PUT -- MAY I HAVE IT MARKED AS
PEOPLE'S NEXT IN ORDER, A --
Q BY MR. HARMON: YOU -- MR. SIMS, DO YOU HAVE THE
HYBRIDIZATION PHOTO FOR THE REHYBRIDIZATION OF 52 -- OH, YOU
KNOW, BEFORE -- I'M SORRY.
BEFORE WE MOVE ON, LET'S STAY WITH 1168 IF WE CAN FOR
A COUPLE MINUTES. START AT THE TOP, MR. SIMS, AND TELL US --
THERE ARE A LOT OF THINGS UP THERE THAT HAVE C'S NEXT TO THEM.
THERE'S A 52C, A 47C, A 48C, A 50C.
YOU SEE ALL THOSE?
A YES, I DO.
Q ARE THOSE SUBSTRATE CONTROLS?
A YES. ALL OF THOSE WITH THE C AT THE END ARE
SUBSTRATE CONTROLS. FROM THE TOP, IT WOULD BE FOR LAPD NO. 52,
LAPD NO. 47, SUBSTRATE CONTROL 48, SUBSTRATE CONTROL 50,
SUBSTRATE CONTROL -- THOSE ARE ALL SUBSTRATE CONTROLS FOR BUNDY
DROPS.
Q AND JUST TO SUMMARIZE THEM, DID THEY ALL PRODUCE NO
TYPING RESULTS?
A WELL, AGAIN, NOT -- NO DOTS AT ALL WERE SEEN WITH
THOSE.
Q AND WHAT IS THE IMPORTANCE OF THOSE STAINS HAVING
PRODUCED NO TYPING RESULTS JUST IN THE CONTEXT OF THIS SERIES OF
TESTS THAT ARE REFLECTED ON 1168?
A JUST WITHIN THIS SERIES?
Q YES.
A WELL, AGAIN, YOU DON'T SEE ANY LEVEL OF CONTAMINATION
SUCH AS PCR PRODUCT CONTROL AS YOU LOOK ACROSS THE SERIES OF
STRIPS LIKE THIS.
Q OKAY.
AND DO THEY ALSO HAVE AN IMPORTANT ROLE IN THE BIGGER
PICTURE?
A I THINK THEY HAVE A VERY IMPORTANT ROLE IN THE BIGGER
PICTURE.
Q AND WE'LL TALK ABOUT THE BIGGER PICTURE IN A WHILE,
OKAY?
A OKAY.
MR. HARMON: CAN WE HAVE THE --
Q BY MR. HARMON: DID YOU GIVE ME YOUR PHOTO THAT SHOWS
THE REHYBRIDIZATION OF 52? I BELIEVE THAT'S BACK THERE.
YOU WANT TO CHECK UP THERE, MR. SIMS? WE SEEMED TO
HAVE LOST IT.
A YES.
(BRIEF PAUSE.)
THE WITNESS: I DO HAVE IT. NO. I'M SORRY. THIS IS NOT
IT. THIS IS A DIFFERENT PHOTO.
MR. HARMON: I HAVE IT.
THE COURT: ALL RIGHT.
HAVE YOU SHOWN THAT TO MR. SCHECK?
MR. HARMON: MAY WE HAVE THAT MARKED AS PEOPLE'S NEXT IN
ORDER?
THE COURT: 274.
(PEO'S 274 FOR ID = PHOTOGRAPH)
Q BY MR. HARMON: OKAY.
MR. SIMS, COULD YOU JUST START AT THE TOP OF PEOPLE'S
EXHIBIT 274 AND DESCRIBE THE SAMPLES THAT ARE REPRESENTED BY
THOSE HORIZONTAL STRIPS?
A YES.
THIS IS -- THIS IS SOME REHYBRIDIZATIONS OF SOME OF
THE SAMPLES THAT WE WANTED TO TAKE A SECOND LOOK AT IN THIS CASE.
THE FIRST ONE IS 42B1, WHICH WAS STAIN B1 FROM THE
SOCK.
THE NEXT ONE IS 41B2, WHICH IS ALSO FROM THE SOCK.
AND THEN THERE'S A POSITIVE CONTROL THAT WAS BEING
REHYBED, A NEGATIVE CONTROL.
AND THEN THE 55A ON THE -- WHICH IS THE ONE, TWO,
THREE -- THE FIFTH STRIP DOWN, THAT'S NO. 52, THE REHYBE.
Q THE SECOND ONE FROM THE BOTTOM?
A THE SECOND ONE FROM THE BOTTOM.
AND THEN THE LAST ONE IS A REHYBE OF THE POSITIVE
CONTROL THAT WAS RUN AT THE SAME TIME THAT 52 ORIGINALLY WAS RUN.
Q AND IS YOUR OPINION STILL THE SAME ABOUT LAPD 52,
WHICH IS THE STAIN OUT IN THE DRIVEWAY IN THE REAR OF THE BUNDY
RESIDENCE, THAT DROP OF BLOOD, AS IT WAS WHEN YOU SAW THE STRIPS
THE FIRST TIME YOU HYBRIDIZED THEM?
A WELL, YES. BUT NOW I HAVE -- I HAVE CHECKED IT TO
MAKE SURE THAT THAT IS THE CORRECT TYPE, THE 1.1, 1.2 IS THE
CORRECT TYPE.
Q OKAY.
AND IN THIS REHYBRIDIZATION PROCESS, IS THAT
SOMETHING THAT ANOTHER TRAINED EYE COULD DO IF THEY HAD ANY OF
THE DNA?
A YES. THAT'S -- THAT'S SOMETHING YOU COULD DO WITH
THE PCR PRODUCT.
Q ANYONE WHO'S CONVERSANT WITH THIS SYSTEM?
A YES.
Q AND YOU'VE ALREADY DESCRIBED, THERE'S QUITE A BIT OF
PCR PRODUCT AROUND ON THESE SAMPLES?
A WELL, THERE'S -- ON ALL THESE SAMPLES, I BELIEVE WE
STILL HAVE PCR PRODUCT LEFT ON ALL OF THEM.
Q WOULD THAT BE ONE WAY OF CONFIRMING OR REFUTING THE
RESULTS THAT YOU PRODUCED HERE IN COURT?
A IT WOULD BE ONE CHECK, YES.
Q OKAY.
AND WE TALKED ABOUT THE POLY-MARKER AND D1S80
RESULTS. HOW DO THEY SUPPORT YOUR INITIAL AND NOW CONFIRMED
OPINION THAT 52 IS A 1.1, 1.2?
MR. SCHECK: MOTION TO STRIKE WITH RESPECT TO POLY-MARKER.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: DO THE CELLMARK POLY-MARKER, DQ-ALPHA
RESULTS AND YOUR D1S80 RESULTS --
THE COURT: POLY-MARKER IS THE PROBLEM.
MR. HARMON: EXCUSE ME?
THE COURT: POLY-MARKER.
Q BY MR. HARMON: DO THE CELLMARK POLY-MARKER --
THE COURT: NO. NO. NO. NO POLY-MARKER.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MR. HARMON: DO THE CELLMARK RESULTS AND YOUR
D1S80 RESULTS CONFIRM YOUR FINDING THAT THE 1.3 WAS AN ARTIFACT
IN LIGHT OF THE FACT THAT --
THE COURT: SUSTAINED. IT'S VAGUE. I THINK YOU'RE
RESTRICTED TO THE D1S80.
MR. HARMON: AND THE DQ-ALPHA, YOUR HONOR.
THE COURT: AND THE DQ-ALPHA THAT CELLMARK DID.
Q BY MR. HARMON: DO THE CELLMARK RFLP AND DQ-ALPHA
RESULTS AND YOUR D1S80 RESULTS CONFIRM YOUR INITIAL OPINION WHICH
IS CONFIRMED ON PEOPLE'S 274, THAT THE 1.3 WAS AN ARTIFACT IN
ITEM 52?
A WELL, AGAIN, THERE'S CONSISTENCY IN ALL THOSE
RESULTS.
Q AND OTHER TRAINED EYES COULD DISAGREE WITH YOU?
A YES.
Q BUT NONE HAVE TO YOUR KNOWLEDGE?
MR. SCHECK: OBJECTION. MOVE TO STRIKE.
THE COURT: SUSTAINED.
Q BY MR. HARMON: MR. SCHECK ASKED YOU A LOT OF
QUESTIONS ABOUT YOUR SOUND SCIENTIFIC PRACTICE. DO YOU RECALL
THOSE A COUPLE DAYS AGO?
A YES.
Q DOES THAT MEAN THAT THE WAY YOU DO THINGS IS THE ONLY
WAY TO DO THINGS?
A NO.
Q FOR EXAMPLE, YOU USE A RESTRICTION ENZYME HAE 3,
CELLMARK USES HIN-F1?
A YES. THAT WOULD BE A DIFFERENCE.
Q SO HAE 3 ISN'T THE ONLY SOUND SCIENTIFIC PRACTICE
THEN?
A THAT'S CORRECT.
Q WHAT ABOUT EXTRACTION TECHNIQUES? THAT'S ONE OF THE
INITIAL STEPS IN THE PROCESS. YOU USE THE ORGANIC EXTRACTION
PROCESS?
A YES. IN THIS CASE, WE USED THE ORGANIC EXTRACTION
PROCESS. FOR EXAMPLE, THERE'S A CHELEX EXTRACTION PROCESS AND
THAT'S -- THAT'S AN ACCEPTABLE PRACTICE.
MR. SCHECK: YOUR HONOR, I MOVE TO STRIKE THESE QUESTIONS
AS OUTSIDE THE SCOPE OF CROSS-EXAMINATION IN TERMS OF THESE
PARTICULAR TYPE THINGS. IT'S NOT WHAT I ASKED HIM ABOUT.
THE COURT: OVERRULED.
Q BY MR. HARMON: WHEN YOU SAID -- WHEN YOU DESCRIBE
THINGS AS SOUND SCIENTIFIC PRACTICE, DO YOU MEAN THAT ANY OTHER
WAY THINGS ARE DONE IS UNSOUND?
A NO.
Q HAVE YOU ALWAYS DONE THINGS THE WAY YOU DO THEM NOW?
A NO.
Q FOR EXAMPLE, DID YOU ALWAYS FLAME YOUR TOOLS?
A NO.
Q WERE YOU UNSOUND BEFORE YOU FLAMED YOUR TOOLS?
A I DON'T THINK SO.
Q WHY DO YOU FLAME YOUR TOOLS?
A WELL, THERE'S SOME THINGS THAT YOU DO IN THIS
BUSINESS JUST BECAUSE THAT SHUTS DOWN ANYONE SAYING, "WELL, WHY
DIDN'T YOU DO THAT," OR, "WHAT DID YOU THINK ABOUT THAT," OR, "IS
IT POSSIBLE THAT YOU HAD SOMETHING ON THERE?"
AND SO THERE'S CERTAIN STEPS THAT ONE CAN TAKE TO
JUST ELIMINATE ANY OF THOSE POSSIBILITIES. AND I'VE BEEN INVOLVED
IN A CASE RECENT -- NOT TOO LONG AGO WHERE IT WAS INFERRED THAT
THE WAY I WAS CLEANING MY TOOLS WAS INSUFFICIENT. AND SO WHAT I
DECIDED TO DO WAS TO SAY, OKAY, LET'S REMOVE THAT ARGUMENT.
LET'S JUST BURN THESE THINGS.
Q TO YOUR PERSONAL KNOWLEDGE, DOES DR. EDWARD BLANK
FLAME HIS TOOLS?
MR. SCHECK: OBJECTION. IRRELEVANT.
THE COURT: SUSTAINED.
Q BY MR. HARMON: EVEN IF AN ANALYST WASN'T AS
METICULOUS AS YOU, IF HE FOLLOWS THE PCR, DQ-ALPHA USER GUIDE,
INCLUDING THE USE OF POSITIVE, NEGATIVE AND SUBSTRATE CONTROLS,
IN YOUR OPINION, WOULD THOSE RESULTS BE SOUND SCIENTIFIC RESULTS?
MR. SCHECK: OBJECTION. MOVE TO STRIKE WITHOUT FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: YES. I THINK IF ONE FOLLOWS THE USER GUIDE,
THAT THOSE ARE -- THOSE WOULD LEAD TO SOUND RESULTS. THOSE ARE
SOUND PRACTICES LEADING TO GOOD RESULTS.
Q BY MR. HARMON: OTHER SOUND PRACTICES?
A YES.
Q MR. SCHECK ASKED YOU SOME QUESTIONS ABOUT YOUR QA
MANUAL, YOUR QUALITY ASSURANCE MANUAL?
A YES.
Q RECALL THOSE?
A YES.
Q DO YOU BELIEVE THAT THE EXAMINER SHOULD ONLY OR
SHOULD EXAMINE ONLY ONE ITEM OF EVIDENCE AT A TIME?
A YES.
Q IN FACT, THAT'S WHAT YOUR QA MANUAL SAYS; IS THAT
RIGHT?
A YES, IT DOES.
Q AND DO YOU BELIEVE THAT THIS PRACTICE OF EXAMINING
ONLY ONE ITEM OF EVIDENCE AT A TIME WILL GUARD AGAINST SAMPLE MIX
UP AND CROSS TRANSFER?
A YES. IT'S A VERY IMPORTANT TOOL BECAUSE THAT WAY,
YOU ONLY HAVE ONE THING IN FRONT OF YOU THAT YOU'RE DEALING WITH
AT ANY GIVEN MOMENT WHEN YOU'RE TALKING ABOUT EXAMINING A BASIC
BLOODSTAIN OR SWATCHES FOR EXAMPLE.
Q AND THAT'S FROM YOUR QUALITY ASSURANCE MANUAL?
A YES, THAT IS.
Q DO YOU BELIEVE THAT REASONABLE CARE WILL BE TAKEN TO
ENSURE THAT THE RISK OF INADVERTENT TRANSFER BETWEEN HIGH AND LOW
DNA CONCENTRATION SAMPLES, EVIDENCE AND REFERENCE SAMPLES AND
BETWEEN VICTIM AND SUSPECT IS MINIMIZED IF YOU TAKE REASONABLE
CARE?
A YES.
Q AND DO YOU BELIEVE THAT THIS MAY INCLUDE ONLY
PROCESSING THE SAMPLES AT A DIFFERENT TIME OR SPACE AND/OR
PROCESSING ONLY A FEW SAMPLES AT A TIME?
A YES. THAT'S FROM OUR QA MANUAL.
Q IS IT THAT HARD TO DO?
A NO. IT'S DONE ROUTINELY IN LABORATORIES ALL OVER THE
COUNTRY.
Q NOW, MR. SCHECK ASKED YOU SEVERAL DAYS AGO ABOUT A
SEVEN-DAY PERIOD FROM START TO FINISH WITH SOME OF YOUR EVIDENCE
PROCESSING THROUGH TYPING.
DO YOU RECALL THAT SERIES OF EVENTS AND QUESTIONS?
A YES. I BELIEVE THAT WAS FROM SOME TIME IN AUGUST.
Q OKAY.
AND NOW, IN THAT CONTEXT, I'D LIKE TO ACTUALLY
DESCRIBE WHAT YOU DID VERSUS WHAT YOU NORMALLY DO. OKAY, MR.
SIMS?
A OKAY.
Q DID THAT SEVEN DAYS REPRESENT THE FASTEST PERIOD OF
TIME WITHIN WHICH THOSE COMPLETE SET OF TESTS COULD HAVE BEEN
PERFORMED?
A BY NO MEANS. IN FACT, IT WAS SEPTEMBER NOW. I
REMEMBER IT WAS A SERIES OF DAYS IN SEPTEMBER.
BUT I THINK WHAT THAT WOULD REPRESENT WAS ABOUT THE
SLOWEST IT COULD EVER TAKE TO DO THAT SERIES OF TESTS.
Q OKAY.
WHY WAS IT SO SLOW?
A WELL, WE WERE BEING EXTREMELY METHODICAL AS FAR AS
SAMPLING THIS EVIDENCE. WE WERE -- WE WERE DOCUMENTING EACH PART
OF THE PROCESS --
MR. SCHECK: EXCUSE ME, YOUR HONOR. COULD HE BE SPECIFIC
AS TO WHICH SAMPLES BECAUSE I ASKED HIM ABOUT A FEW.
THE COURT: YES.
MR. HARMON: SURE.
Q BY MR. HARMON: COULD WE FOCUS ON WHAT -- THE SERIES
OF QUESTIONS THIS WAS ABOUT? DO YOU RECALL THE DATES?
A YES. IT BEGAN I BELIEVE ON SEPTEMBER 8TH.
THE COURT: AND DO YOU RECOLLECT WHAT ITEMS YOU WERE
TESTING?
THE WITNESS: WELL, AGAIN, I'M GOING TO HAVE TO REFER TO MY
NOTES TO REFRESH MY MEMORY.
THE COURT: ALL RIGHT.
THE WITNESS: IS THERE A QUESTION IN FRONT OF ME?
Q BY MR. HARMON: SURE.
WHAT ITEMS DID THAT SEQUENCE OR THAT SERIES
REPRESENT, MR. SIMS?
A THAT WOULD BE ITEM NO. 47, ITEM NO. 1, ITEM NO. 20,
ITEM NO. 14, ITEM NO. 15, ITEM NO. 16, ITEM NO. 17, ITEM NO. 18,
ITEM NO. 19, ITEM NO. 20, ITEM NO. 26.
I THINK THAT'S -- WELL, NO. THERE WAS SOME
ADDITIONAL ITEMS.
NOW, ITEM NO. 293, ITEM NO. 305.
Q MR. SIMS, ARE YOU GOING BACK AND FORTH BETWEEN YOUR
DOJ NUMBERS AND THE LAPD NUMBERS ON US?
A OH, I'M SORRY. I'M DOING THAT, YES.
Q COULD WE GET THEM IN TERMS OF LAPD NUMBERS?
A WELL, NO. ACTUALLY I DON'T -- YES, I'M SORRY. I DID
DO THAT.
I MENTIONED 47, I MENTIONED 1, 20, 24, 29, 30, 31,
32, 34, 55, 293, 305.
I THINK THAT'S IT FOR THOSE SAMPLES.
Q WELL, WHAT TOOK SO LONG THAT YOU DON'T NORMALLY DO IN
THE PROCESSING OF THESE SAMPLES?
A WELL, I THINK -- I THINK YOU BEGIN BY THE FACT THAT
ANY TIME YOU HAVE A GUEST IN THE LABORATORY, THAT AUTOMATICALLY
ADDS A CERTAIN AMOUNT OF TIME TO THE PROCESS.
Q IS THAT UNUSUAL?
A NO. I MEAN, THERE'S A CERTAIN LEVEL OF HELLO, HOW
ARE YOU AND ALL THAT KIND OF THING THAT ALWAYS GOES ON.
BUT MORE TO THE POINT WOULD BE THAT THE DOCUMENTATION
WOULD BE TWOFOLD. IN OTHER WORDS, I WOULD TAKE A PHOTOGRAPH AND
THEN DR. BLAKE WOULD TAKE A PHOTOGRAPH AND THEN I'D STOP AND MAKE
SURE HE HAD TAKEN HIS PHOTOGRAPH BEFORE I MOVED ON TO DO MY NEXT
STEP AND ET CETERA, ET CETERA, ET CETERA. SO THAT'S -- THAT'S A
LONG PART OF THE PROCESS.
AND THAT -- NOW, THAT WOULD INCLUDE JUST THE ACTUAL
SAMPLING OF THESE ITEMS. IN OTHER WORDS, TO GET IT OUT OF THAT
COIN ENVELOPE, DOCUMENTED, PHOTOGRAPHED, ET CETERA, AND THEN PUT
INTO A TEST TUBE FOR LATER TESTING.
Q WHAT ABOUT THE WEIGHING OF SAMPLES? DID THAT TAKE
PLACE DURING THIS SEQUENCE?
A YES.
THIS WAS SOMETHING THAT I HAD NEVER DONE BEFORE IN A
CASE, WHERE I ACTUALLY WEIGHED THE SWATCHES, INDIVIDUALLY
WEIGHING THEM. AND, YOU KNOW, AS YOU CAN IMAGINE, ONE HAS TO BE
VERY CAREFUL BECAUSE YOU'RE STARTING TO NOW HANDLE THE EVIDENCE
IN AN UNUSUAL WAY. AND SO YOU HAVE TO MAKE SURE THAT GOES RIGHT.
AND THAT TAKES TIME.
Q HAVING NEVER DONE THIS BEFORE AND ADDING A NEW STEP
IN THE SAMPLE PROCESSING, DOES THAT INCREASE THE LIKELIHOOD OR
POSSIBILITY OF SOME SORT OF PROBLEM?
A WELL, IT -- ANY TIME YOU EXCESSIVELY HANDLE THINGS,
IT MAKES ME NERVOUS. BUT I -- I JUST HAD TO SLOW THINGS DOWN TO
MAKE SURE THAT WE DIDN'T LOSE ONE OF THESE. FOR EXAMPLE, IN
OTHER WORDS, ONE DIDN'T FLY OFF THE FORCEPS OR SOMETHING LIKE
THAT AND LAND ON THE FLOOR. THAT WOULD BE THE KIND OF CONCERN
THAT I WOULD HAVE.
Q IS THERE ANYTHING IN YOUR PROTOCOL ABOUT WEIGHING
SAMPLES?
A NO.
Q HOW MUCH ADDITIONAL TIME DO YOU THINK THIS WEIGHING,
DOUBLE DOCUMENTATION, DOUBLE PHOTOGRAPHING CONTRIBUTED TO THE
PROCESS?
A WELL, I MEAN, TO THE WHOLE -- IT'S HARD FOR ME TO SAY
EXACTLY, BUT IT WOULD AT LEAST DOUBLE, MAYBE TRIPLE THE AMOUNT OF
TIME THAT I'D SPEND, SOMETHING LIKE THAT. I DON'T KNOW EXACTLY.
Q OKAY.
NOW, I BELIEVE YOU MENTIONED THAT YOU DID THE ORGANIC
EXTRACTION PROCESS?
A YES.
Q AND CHELEX YOU MENTIONED EARLIER, THAT'S A MUCH
FASTER PROCESS?
A YES. THE CHELEX EXTRACTION CAN BE DONE IN A MATTER
OF A COUPLE HOURS.
THE ORGANIC FOR ONE THING WOULD TAKE OVERNIGHT, AND
THEN THERE'S A LOT MORE PROCESSING DOWN AT THE -- AFTERWARDS.
Q AND THERE'S ANOTHER STEP CALLED THE PRODUCT GEL?
A YES.
Q AND DO YOU USUALLY DO THAT BEFORE YOU -- THE FINAL
PRODUCT OR THE TYPING IS CONDUCTED?
A USUALLY, BUT NOT ALWAYS.
Q OKAY.
SOMETIMES YOU DO IT AFTERWARDS?
A YES. SOMETIMES I DO IT AFTERWARDS.
Q IF YOU DO IT AFTERWARDS, THEN YOU CAN START FROM
SAMPLING TO TYPING IN A SHORTER PERIOD OF TIME?
A YES, BECAUSE IT'S ONE STEP THAT YOU DO LATER. SO YOU
COULD HAVE A TYPEABLE -- YOU COULD HAVE A TYPING RESULT AND THEN
JUST DO THAT LATER.
Q AND IS THAT SOUND SCIENTIFIC PRACTICE TO DO IT
AFTERWARDS JUST AS IT IS TO DO IT BEFORE?
A I HAVE NO PROBLEM WITH THAT.
Q OKAY.
AND YOU BELIEVE -- I BELIEVE IN THE SEQUENCE, YOU
ALSO DID A SLOT BLOT, DID YOU?
A YES. I BELIEVE IT WAS A SLOT BLOT WAS RUN ON THESE
SAMPLES, YES, AND THAT WAS BY RENEE MONTGOMERY.
Q AND HOW MUCH TIME DOES A SLOT BLOT CONTRIBUTE TO THIS
ENTIRE SEVEN-DAY PERIOD?
A WELL, OVERALL, THAT WOULD PROBABLY ADD ABOUT A DAY'S
WORTH OF WORK TO THIS BECAUSE THERE WAS THE PREPARATION OF THE
SLOT BLOT. THEN IT'S GOT TO BE HYBED. THEN YOU DO THE ACTUAL
TEST. THEN THERE WAS THE DOCUMENTATION OF IT.
FOR EXAMPLE, DR. BLAKE WOULD COME OVER AND REVIEW ALL
OF OUR RESULTS. SO WE WOULD SPEND TIME PUTTING -- FIGURING OUT
WHAT THE QUANTITIES WERE AND THEN WE'D REVIEW ALL THAT STUFF. SO
THAT TAKES A LOT OF TIME.
Q SO IS THERE ANY WAY TO COMPARE HOW LONG YOU TOOK IN
THAT SEVEN-DAY PROCESS WITH SOMEONE ELSE WHO'S TRYING TO
EXONERATE OR IMPLICATE SOMEONE ELSE IN SHORT ORDER?
A I DON'T THINK IT'S A FAIR COMPARISON.
Q LET'S TALK ABOUT THE EAP MARKER SPECIFICALLY AS IT
RELATES TO THE FINGERNAIL SCRAPINGS.
A OKAY.
Q OKAY?
ON DIRECT EXAMINATION, YOU BRIEFLY REFERRED TO
SCIENTIFIC LITERATURE ABOUT THE EAP SYSTEM.
COULD YOU JUST BRIEFLY SUMMARIZE GENERAL CONCERNS
ABOUT THE EAP SYSTEM?
A YES. BRIEFLY THIS IS --
THE COURT: COUNSEL, HAVEN'T WE BEEN THROUGH THIS WITH THIS
WITNESS ON DIRECT AND WITH MR. MATHESON? I MEAN THE JURY HAS
HEARD THE CONCERNS ABOUT EAP.
MR. HARMON: I'VE GOT A FEW QUESTIONS. MR. SCHECK WENT INTO
IT ON CROSS, YOUR HONOR.
THE COURT: I UNDERSTAND THAT. BUT I'M SAYING I DON'T
THINK THE FOUNDATION IS NECESSARILY REQUIRED AT THIS POINT. THE
JURY HAS ALREADY HEARD THIS DISCUSSED THREE TIMES BEFORE.
MR. HARMON: I'M SORRY, YOUR HONOR.
THE COURT: THAT'S THE POINT I'M TRYING TO MAKE.
Q BY MR. HARMON: YOU'VE REVIEWED MR. MATHESON'S NOTES
AND YOU'VE REVIEWED HIS ELECTROPHORETOGRAM MARKED AS PEOPLE'S 273
FOR IDENTIFICATION; HAVE YOU NOT?
A YES, I HAVE.
Q OKAY.
AND YOU'RE AWARE OF THE NUMBER OF SAMPLES THAT ARE ON
THERE?
A YES, I AM.
Q COULD YOU FROM LEFT TO RIGHT READ THE NUMBER OF
EVIDENCE SAMPLES THAT ARE ON THAT ELECTROPHORETOGRAM?
A 80 --
MR. SCHECK: OBJECTION. HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: 84A, 84B, 85A, 85B, 115, 116 AND 117.
Q BY MR. HARMON: OKAY.
AND REVIEWING 84A AND B, WHICH PURPORT TO BE FROM THE
FINGERNAIL SCRAPINGS OF NICOLE BROWN TAKEN AT THE -- DURING THE
AUTOPSY PROCESS, HOW WOULD YOU REPORT THE EAP TYPE FOR 84A AND B?
MR. SCHECK: OBJECTION. BEYOND THE SCOPE OF
CROSS-EXAMINATION. I ASKED ABOUT DEGRADATION MATTERS.
THE COURT: OVERRULED.
THE WITNESS: WELL, I MEAN THIS IS -- THIS IS SOMEWHAT
DIFFICULT BECAUSE OBVIOUSLY I'M NOT THE ONE THAT READ THE
ORIGINAL PLATE.
BUT I THINK IF YOU LOOK AT THIS PARTICULAR SET OF
RESULTS, YOU DO SEE THAT SOME OF THESE SAMPLES HAVE THEIR A BANDS
STARTING TO FADE AWAY. I CAN -- I CAN SEE CONSISTENCY IN THAT.
AND I ALSO NOTE THAT IN THAT CRITICAL AREA OF THE
PLATE ON THE LEFT SIDE WHERE 84A AND B ARE, THERE IS SOME
DISTORTION IN THE GEL. AND I DON'T -- I DON'T THINK YOU CAN
DEFINITELY SAY THAT THAT'S A B RESULT. THAT WOULD BE MY
CONCLUSION.
Q BY MR. HARMON: WHAT WOULD YOU SAY?
A WELL, I RECOGNIZE THAT THERE ARE THE BANDS -- I SEE
SOME BANDS THERE THAT YOU COULD SAY, YOU KNOW, MAY BE
ATTRIBUTABLE TO A B. IN OTHER WORDS, IT'S NOT AN A, FOR EXAMPLE.
THERE'S NO DOUBT IN MY MIND THAT IT'S NOT AN A RESULT. BUT I
DON'T THINK YOU CAN ABSOLUTELY SAY THAT THAT'S A B EITHER.
Q OKAY.
WOULD YOU LOOK AT 117?
A OKAY.
Q WHAT'S THAT LOOK LIKE?
MR. SCHECK: OBJECTION. BEYOND THE SCOPE OF CROSS.
THE COURT: SUSTAINED.
MR. HARMON: MAY WE APPROACH ON THAT, YOUR HONOR?
THE COURT: 117 WAS NOT AN ISSUE DISCUSSED.
PROCEED.
MR. HARMON: MAY WE APPROACH, YOUR HONOR?
THE COURT: NO.
PROCEED.
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEYS.)
Q BY MR. HARMON: IS 115 AND 116 ALSO ON THAT
ELECTROPHORETOGRAM?
A YES.
Q WOULD YOU EXCLUDE NICOLE BROWN AS THE SOURCE OF THE
BLOOD UNDER HER NAILS NOW THAT YOU'VE EXPLAINED TO THE JURY WHAT
YOU THINK 84A AND B LOOK LIKE, IF YOU ASSUME THAT SHE WAS AN EAP
TYPE BA?
A WELL, IT'S -- I'M NOT LOOKING AT THIS RESULT JUST IN
THAT VACUUM OF THE PARTICULAR GEL. I MEAN, I'M TAKING INTO
ACCOUNT THE INFORMATION THAT WE DERIVED FROM THE PCR RESULTS AND
I'M ALSO TAKING INTO ACCOUNT MY UNDERSTANDING THAT THERE WAS NO
INDICATION OF ANY TISSUE AS FOUND ON THE SAMPLE.
SO FROM THAT -- THOSE TO ME ARE POWERFUL PIECES OF
INFORMATION BECAUSE IT INDICATES THAT THIS IS NOT JUST SOME
ISOLATED SAMPLE, BUT THIS WOULD BE PART OF THAT ENTIRE MIX THAT
WAS LOOKED AT BY THE PCR TESTING, WHICH INCLUDED NICOLE BROWN.
AND SO I WOULD NOT USE THIS TO EXCLUDE HER.
Q OKAY.
AND I BELIEVE YOUR DESCRIPTION OF WHAT YOU SEE, YOU
SEE SOME POSSIBLE A BANDS THERE. IS THAT CONSISTENT WITH THE
SCIENTIFIC -- THE PRIMARY SCIENTIFIC LITERATURE THAT MR. SCHECK
REFERRED TO ON CROSS-EXAMINATION?
MR. SCHECK: OBJECTION. LEADING.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: ARE YOUR OBSERVATIONS ABOUT SEEING
SOMETHING IN THE A BAND AREA CONSISTENT WITH THE MAIN STREAM
SCIENTIFIC LITERATURE ON THE SUBJECT?
MR. SCHECK: OBJECTION. VAGUE, OBJECTION, AS TO WHERE.
THE COURT: OVERRULED.
THE WITNESS: WELL, MY CONCERN WAS THAT THAT KEY AREA WHERE
THE MOST STABLE A BAND IS IS NOT REALLY --
THE COURT: EXCUSE ME, MR. SIMS. THE QUESTION WAS, IS THAT
CONSISTENT WITH WHAT YOU HAVE SEEN IN THE SCIENTIFIC LITERATURE
ON THE SUBJECT? YES OR NO?
THE WITNESS: I'M SORRY. IS WHAT CONSIST --
THE COURT: REPHRASE THE QUESTION, COUNSEL.
Q BY MR. HARMON: OKAY.
YOU'VE DESCRIBED -- YOU'VE TOLD THE JURY THAT YOU
WOULD NOT DESCRIBE THAT AS A B. YOU'VE TOLD THE JURY THAT YOU
SEE SOMETHING IN THE A BAND AREA.
KNOWING THE DEGRADATION PROCESS OF AN EAP TYPE BA, IN
SEEING WHAT YOU SEE IN THE A BAND AREA, IS YOUR OBSERVATION
CONSISTENT WITH A BA DEGRADING TO A B BASED ON THE MAIN STREAM
SCIENTIFIC LITERATURE ON THAT POINT?
MR. SCHECK: OBJECTION. VAGUE AS TO THAT QUESTION, YOUR
HONOR.
THE COURT: OVERRULED.
THE WITNESS: WELL, MY CONCERN -- I THINK THAT MISSTATES
WHAT I SAID SOMEWHAT ABOUT SEEING SOME A BANDS THERE. MY CONCERN
IS THAT CRITICAL AREA IS NOT WHERE THE A BAND WOULD BE, ONE OF
THE KEY A BANDS WOULD BE IS NOT THAT CLEAR FROM THIS PARTICULAR
RESULT.
SO THAT -- AND THAT IS CONSISTENT WITH THE SCIENTIFIC
LITERATURE, THAT ONE OF THOSE A BANDS IS MORE STABLE THAN THE
OTHER.
Q BY MR. HARMON: OKAY. I WOULD LIKE TO TALK ABOUT --
MR. HARMON: WHAT TIME ARE WE GOING TO BREAK, YOUR HONOR?
THE COURT: 3:30.
MR. HARMON: 3:30. OKAY.
THE COURT: 3:30.
Q BY MR. HARMON: I'D LIKE TO TALK ABOUT DR. BLAKE AND
HIS PRESENCE IN YOUR LAB A LITTLE BIT MORE.
MR. SCHECK ELICITED FROM YOU THAT YOU FREQUENTLY
CHANGE GLOVES BETWEEN SAMPLES IN THIS CASE. DO YOU REMEMBER THAT
LAST WEEK?
A YES.
Q DID MR. BLAKE'S INVOLVEMENT IN THIS CASE HAVE SOME
IMPACT ON YOUR CHANGING GLOVES BETWEEN SAMPLES?
A YES, IT DID.
Q COULD YOU EXPLAIN AT EACH POINT IN THE PROCESS WHY
MR. BLAKE'S INVOLVEMENT CAUSED YOU TO CHANGE GLOVES IN THIS CASE
BETWEEN SAMPLES?
A YES.
WHEN WE WERE PROCESSING THE SAMPLES, THE -- ONE OF
THE ACTIVITIES I MENTIONED WAS WEIGHING OF THE SWATCHES. SO THAT
MEANT THAT FOR EACH ONE OF THESE, I HAD TO GO ONE AT A TIME
AROUND DIFFERENT AREAS OF THE LABORATORY. AND I WAS PARTICULARLY
CONCERNED ABOUT HAVING HANDLED DOORKNOBS AND TOUCHING DIFFERENT
THINGS AS FAR AS WHAT THAT MAY POTENTIALLY BE ON MY GLOVES.
SO I WOULD CONTRAST THAT WITH THE SITUATION WHERE
YOU'RE JUST WORKING WITH CLEAN TOOLS, THEN IT'S UNLIKELY THAT YOU
WOULD GET ANY CONTAMINATION ON YOUR GLOVES, WHERE YOU'RE JUST
WORKING IN ONE AREA. AND IT WAS BECAUSE OF THE REQUEST FOR THE
WEIGHING OF THE SWATCHING THAT THAT WOULD -- WOULD NECESSITATE OR
WOULD MAKE ME WANT TO BE MORE CONCERNED ABOUT HOW THOSE -- ABOUT
THE CHANGING OF GLOVES.
Q SO WOULD YOU ACTUALLY -- WITH EACH SAMPLE THAT WAS
TAKEN, WOULD YOU THEN GO TAKE IT AND BE WEIGHED AND PHOTOGRAPHED
INDIVIDUALLY?
A YES. IT WOULD BE TAKEN TO ANOTHER ROOM FOR
PHOTOGRAPHY AND THEN TAKEN TO ANOTHER ROOM FOR WEIGHING AND THEN
BROUGHT BACK INTO THE MAIN LABORATORY AREA WHERE I WAS WORKING.
Q AND IS THAT WHY YOU CHANGED GLOVES BETWEEN SAMPLES?
A WELL, THAT WAS ONE OF THE KEY CONCERNS IN MY CASE
BECAUSE I WAS HANDLING A LOT OF DIFFERENT SURFACES AT THAT POINT.
Q OKAY.
NOW, SO IT'S NOT YOUR PRACTICE THEN TO ROUTINELY
CHANGE GLOVES BETWEEN EVERY SAMPLE THAT YOU'RE PROCESSING IN A
CASE, IN A NORMAL CASE?
A THAT'S CORRECT.
Q OKAY.
AND IS YOUR PRACTICE CONSISTENT WITH THE AMPLITYPE
PCR, DQ-ALPHA USER GUIDE?
A YES, IT IS.
Q IN THAT REGARD, DO YOU CHANGE GLOVES FREQUENTLY TO
AVOID SAMPLE-TO-SAMPLE CONTAMINATION?
A YES.
Q AND DO YOU CHANGE THEM WHENEVER THEY MIGHT HAVE BEEN
CONTAMINATED WITH DNA AND WHENEVER EXITING THE WORK AREA?
A YES. WHENEVER FOR -- WHENEVER I WOULD THINK THAT I
MAY HAVE CONTAMINATED MY GLOVES, I WOULD IMMEDIATELY TAKE THEM
OFF.
Q DO YOU RECOGNIZE THAT LANGUAGE FROM SECTION 2.2.2 OF
THE USER GUIDE?
A YES, I'M FAMILIAR WITH THAT.
Q IS IT THAT HARD TO DO?
A NO.
Q HAVE YOU EVER HAD DR. BLAKE TAKE PHOTOS OF YOU IN A
CASE BEFORE?
A WE'VE -- WE'VE BEEN INVOLVED IN SEVERAL CASES OVER
THE YEARS. I -- I CAN'T RECALL ONE WHERE HE TOOK PHOTOS OF ME,
YOU KNOW, AS OPPOSED TO PHOTOS OF THE EVIDENCE.
Q OKAY.
DID YOUR EXAMINATION OF THE GLOVE, NO. 9, FROM
ROCKINGHAM TAKE A LONG TIME IN THIS CASE?
A YES, IT DID.
Q DO YOU RECALL HOW LONG IT TOOK?
A I THINK THAT WAS ON A -- THAT WAS ON A SUNDAY AS I
RECALL.
(BRIEF PAUSE.)
THE WITNESS: ACTUALLY IT WAS A WEEKEND. IT WAS A GOOD
PART OF A WEEKEND WAS SPENT ON THAT GLOVE INITIALLY, AND THEN
THERE WAS ADDITIONAL EXAMINATION IN I BELIEVE IN NOVEMBER OF THE
GLOVE.
Q BY MR. HARMON: AND DID YOU ENGAGE IN THE
DOCUMENTATION PRACTICE THAT YOU'VE DESCRIBED WHERE YOU TOOK
PHOTOS AND WEIGHED THINGS AND HAVE DR. BLAKE TAKE HIS OWN
PHOTOS?
A WELL, IN THAT CASE NOW, WE DIDN'T WEIGH ANYTHING FROM
THE GLOVE. BUT THERE WAS THE KIND OF DOCUMENTATION THAT YOU
MENTIONED.
Q WHY WERE THOSE SAMPLES NOT WEIGHED?
A WE WERE NOT ASKED TO DO THAT BY THE DEFENSE.
Q WHO ACTUALLY -- HOW DID THAT COME ABOUT, THAT YOU
WEIGHED SAMPLES FOR THE FIRST TIME IN THIS CASE?
A DR. BLAKE TOLD ME THAT HE, THAT THE DEFENSE WANTED --
MR. SCHECK: YOUR HONOR, I HAVE NO IDEA WHAT HE'S GOING TO
SAY NEXT, BUT WE WOULD STIPULATE WE ASKED TO WEIGH THE SAMPLES.
THE COURT: ALL RIGHT.
PURSUANT TO A DEFENSE REQUEST?
THE WITNESS: YES. PURSUANT TO A DEFENSE REQUEST.
Q BY MR. HARMON: OKAY.
LET'S TALK ABOUT THE GLOVE EXAM JUST FOR A MOMENT
WHILE WE'RE TALKING ABOUT THE GLOVE.
WHY DID YOU LOOK IN THE NOTCH AREA?
A YES. THIS WAS -- THIS WAS AFTER LOOKING OVER A LOT
OF --
MR. SCHECK: OUTSIDE THE SCOPE OF CROSS-EXAMINATION.
THE COURT: OVERRULED.
THE WITNESS: WELL, THE WAY THIS CAME ABOUT WAS, I STARTED
THINKING ABOUT HOW SOMEONE WITH A BLOODY FINGER MIGHT WANT TO
TAKE A GLOVE OFF AND USE THAT NOTCH TO DO IT.
MR. SCHECK: MOVE TO STRIKE AS SPECULATION.
THE COURT: SUSTAINED.
Q BY MR. HARMON: WHAT DREW YOUR ATTENTION TO THE NOTCH
ON THE GLOVE?
A THERE WAS A SMALL AMOUNT OF STAIN DOWN IN THAT AREA.
Q AND HAD YOU ALREADY SAMPLED THE BLOOD IN OTHER AREAS?
A YES, I HAD.
Q HAD YOU DONE TESTING IN THOSE OTHER AREAS?
A WELL, I HADN'T -- I DIDN'T HAVE ANY RESULTS AT THAT
POINT. I HAD JUST TAKEN SAMPLES FROM OTHER AREAS.
Q OKAY.
AND THEN YOU MENTIONED THERE WAS SOME SMALL STAINS IN
THAT AREA?
A YES. THERE WAS A SMALL STAIN IN PARTICULAR THAT
CAUGHT MY EYE.
Q AND WHERE WAS THAT?
A THAT WAS DOWN BY THAT NOTCH.
Q AND WHY WAS THAT OF SIGNIFICANCE TO YOU?
MR. SCHECK: OBJECTION, FORM OF THE QUESTION.
THE COURT: OVERRULED.
THE WITNESS: WELL, THERE WERE A LOT OF STAINS ON THAT
GLOVE TO LOOK AT, BUT I -- I -- AGAIN, THAT'S WHY I LOOKED IN
THAT PARTICULAR AREA, WAS BECAUSE I THOUGHT THERE MAY BE SOME
SIGNIFICANCE TO ONE TAKING A GLOVE OFF AND USING THE NOTCH TO DO
THAT.
MR. SCHECK: MOVE TO STRIKE.
THE COURT: OVERRULED.
MR. HARMON: COULD WE GET THE GLOVE PHOTO BOARD AND THE
GLOVE RESULT BOARD UP THERE? PUT THE RESULT BOARD UP -- 272-A
AND B. PUT THE RESULT BOARD UP FIRST, PLEASE.
(BRIEF PAUSE.)
THE COURT: CONTINUE, COUNSEL.
Q BY MR. HARMON: OKAY.
MR. SIMS, COULD YOU SHOW US THE --
(BRIEF PAUSE.)
(DISCUSSION HELD OFF THE RECORD
BETWEEN THE DEPUTY DISTRICT
ATTORNEY AND DEFENSE COUNSEL.)
Q BY MR. HARMON: I THINK YOU'VE DESCRIBED YOUR
ATTENTION BEING DRAWN TO THE NOTCH.
WHAT DREW YOUR ATTENTION OR WHAT STAINS ARE WE
TALKING ABOUT THAT DREW YOUR ATTENTION TO THE NOTCH AREA OF THE
GLOVE FROM ROCKINGHAM NO. 9?
A WELL, ON THIS -- THIS AGAIN WOULD BE FROM MY NOTES ON
PAGE 71.
I NOTED AN AREA ON THE INNER SURFACE WITH THE NOTCH
THAT SHOWED WHAT I SAID WAS MACRO INTEREST. AND THAT MEANS THAT
I SAW THERE WAS SOME OF THAT BLOOD, SMALL AMOUNT OF BLOOD
STAINING DOWN IN THAT G10 AREA.
AND I ALSO NOTED WHAT I THOUGHT WAS -- AND THEN I
LOOKED AT IT UNDER THE STEREOMICROSCOPE, AND I THOUGHT IT LOOKED
LIKE A POSSIBLE PIECE OF TISSUE IN THAT AREA.
Q OKAY.
AND WHY WAS THAT OF INTEREST TO YOU?
A WELL --
MR. SCHECK: OBJECTION. CALLS FOR SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: WELL, BECAUSE TISSUE IS NORMALLY SOMETHING
THAT'S PRODUCED BY, FOR EXAMPLE, A FAIRLY DEEP -- A WOUND AS
OPPOSED TO JUST BLOOD BY ITSELF.
Q BY MR. HARMON: AND WHY WAS THE NOTCH AREA OF
INTEREST TO YOU?
A WELL, AGAIN, FROM MY -- I GUESS THIS IS MY TRAINING
AND JUST COMMON SENSE AND ALL THAT GOES INTO IT, BUT I STARTED
THINKING ABOUT WHERE BLOOD --
THE COURT: COUNSEL, I THINK WE'VE ASKED THIS QUESTION NOW
FOUR TIMES.
MR. HARMON: I'M NOT SURE WE GOT AN ANSWER.
THE COURT: YES, WE DID. WE GOT AN ANSWER.
Q BY MR. HARMON: MR. SIMS --
THE COURT: YOU ALSO HAVE TO TRUST THE COMMON SENSE OF THE
JURORS ABOUT HOW ONE TAKES GLOVES OFF AND HOW ONE PUTS THEM ON.
Q BY MR. HARMON: OKAY.
MR. SIMS, JUST TO KIND OF SUMMARIZE HERE WHERE WE ARE
WITH THE GLOVE, COULD YOU SHOW THE JURY WHERE THE STAINS ARE
LOCATED THAT ARE CONSISTENT WITH MR. SIMS AS ONE OF THE
CONTRIBUTORS? WOULD YOU -- I MEAN MR. SIMPSON. MR. SIMPSON.
WELL, WE DON'T KNOW HIS TYPE, YOU KNOW.
THE COURT: ALL RIGHT.
MR. SCHECK: WELL --
Q BY MR. HARMON: COULD YOU SHOW US WHERE THEY ARE ON
THE PHOTO BOARD?
A ON THE --
Q ON THE PHOTO BOARD.
A OH, I'M SORRY. I COULDN'T SEE IT FROM HERE.
Q OH, I'M SORRY.
THE COURT: WE MAY HAVE TO MOVE THAT OVER HERE SO ALL THE
JURORS CAN SEE WHAT YOU ARE TALKING ABOUT BECAUSE IT'S PRETTY
SUBTLE WHAT'S THERE.
AND IF YOU COULD, MR. FAIRTLOUGH, COULD YOU MOVE THAT
UP SO 1492 AND 165 AREN'T BLOCKED BY THE PODIUM?
ALL RIGHT. MR. HARMON.
Q BY MR. HARMON: MR. SIMS, COULD YOU JUST POINT OUT
THE THREE DIFFERENT AREAS THAT YOU FOUND A MIXTURE CONSISTENT
WITH MR. SIMPSON ON THE GLOVE?
A OKAY.
AGAIN, I JUST WANT TO REVIEW, MAKE SURE I'VE GOT
THOSE NUMBERS CORRECT.
YES. IT'S 10 UP HERE. THIS IS THE ONE I WAS TALKING
ABOUT. IT'S NEAR THE NOTCH. IT'S ACTUALLY DOWN A LITTLE BIT
CLOSER THAN THE RED SHOWS, BUT THERE'S A STAIN DOWN IN THIS AREA
(INDICATING). THIS WAS -- 9 WAS WHERE I THOUGHT I SAW THE
POSSIBLE TISSUE AND THEN 11 IS ON THE OUTSIDE OF THE GLOVE TO THE
SIDE OF THE NOTCH THERE DOWN TOWARDS THE WRIST AREA AND THEN 13
WAS ALONG THE ACTUAL STITCHING OF THAT NOTCH.
Q OKAY.
NOW, WHILE YOU'RE THERE -- AND I'VE GOT SOME PHOTOS
IF YOU NEED TO HAVE YOUR RECOLLECTION REFRESHED.
BUT OF THOSE THREE STAINS THAT HAD 25 ALLELE WHICH
COULD HAVE BEEN CONTRIBUTED BY MR. SIMPSON, BUT NOT MR. GOLDMAN,
NOT MISS BROWN, WERE ANY OF THOSE CLOSE TO CUT-OUT AREAS THAT
WERE ON THAT GLOVE WHEN YOU FIRST SAW IT?
A I DID -- THE ONLY -- THE ONLY ONE THAT AT ALL COMES
TO MIND TO ME WOULD BE THIS CUT-OUT HERE (INDICATING) IS SOMEWHAT
CLOSE TO G --
Q YOU POINTED TO IT. COULD YOU RELAY IT TO ONE OF THE
OTHER MARKINGS ON THE BOARD?
A YES. THE MARK -- THE CUT-OUT HERE NEAR G14. IN
OTHER WORDS, G14 IS DOWN IN THIS AREA (INDICATING). THERE'S A
CUT-OUT ABOVE IT THAT SOMEWHAT OPPOSES IT NOW. WHEN IT'S RIGHT
SIDE OUT, IT WOULD SOMEWHAT IMPOSE THIS AREA ON G10.
Q AND THE OTHER TWO STAINS THAT HAD THE 25 ALLELE WERE
NOT CLOSE TO ANY AREAS THAT APPEARED TO HAVE BEEN CUT OUT?
A I WOULDN'T DESCRIBE THEM AS BEING CLOSE.
Q OKAY.
COULD YOU JUST TELL THE JURY, WHEN I SAY AREAS THAT
WERE CUT OUT, TELL US WHAT THE GLOVE LOOKED LIKE WHEN YOU GOT IT?
A WELL, WHEN I GOT IT, IT WAS -- IT APPEARED TO ME THAT
CUT-OUTS HAD BEEN MADE FROM THE DIFFERENT AREAS, SOME OF THE
DIFFERENT AREAS ALONG THE GLOVE. IN OTHER WORDS, I DIDN'T KNOW
EXACTLY WHO CUT THEM OUT, BUT IT APPEARED THAT THERE WERE SOME
SORT OF SQUARISH CUT-OUTS MADE IN DIFFERENT AREAS OF THE GLOVE.
Q AND WERE THOSE CONSISTENT WITH HAVING BEEN SAMPLED BY
A FORENSIC SCIENTIST?
A THAT'S TYPICAL OF WHAT I WOULD EXPECT TO SEE.
MR. HARMON: OKAY.
THANK YOU. I HAVE NO FURTHER QUESTIONS. WE CAN TAKE
A BREAK.
THE COURT: ALL RIGHT.
MR. HARMON: I HAVE MORE QUESTIONS, BUT NOT BEFORE THE
BREAK.
THE COURT: NO, NO.
LADIES AND GENTLEMEN, WE'RE GOING TO TAKE A 15-MINUTE
RECESS.
PLEASE REMEMBER MY ADMONITIONS TO YOU; DON'T DISCUSS
THE CASE AMONGST YOURSELVES, FORM ANY OPINIONS ABOUT THE CASE,
CONDUCT ANY DELIBERATIONS OR ALLOW ANYBODY TO COMMUNICATE WITH
YOU.
AND WE'LL BE IN RECESS FOR 15.
(RECESS.)
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, OUT OF THE
PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. LET'S HAVE THE JURORS, PLEASE.
(BRIEF PAUSE.)
MR. HARMON: YOUR HONOR, I DO WANT TO ADDRESS THE EAP ON
117.
THE COURT: HOLD THEM. WHAT IS THE RELEVANCE OF 117? IT
WAS NOT GONE INTO ON CROSS?
MR. HARMON: WELL, 117 WAS GONE INTO EXTENSIVELY ON CROSS
AND THIS IS PART OF THE LARGE PICTURE ON 117.
AS EVERYBODY KNOWS NOW, EAP IS IN THE RED CELLS.
THE COURT: REFRESH MY RECOLLECTION. WHAT IS 117?
MR. HARMON: 117 IS THE REAR GATE STAIN.
THE COURT: GOT IT.
MR. HARMON: IT IS ONE OF THE EDTA STAINS. WE ALL KNOW THE
SIGNIFICANCE OF THAT. THAT IS ONE OF THE STAINS THAT WASN'T
COLLECTED UNTIL JULY 3RD.
WE ALL KNOW THAT EAP IS IN THE RED CELLS, DNA IS IN
THE WHITE CELLS, AND THE DEFENSE CONTENTIONS ABOUT 117 ARE THAT
IT IS PLANTED AND THAT THAT IS -- REMEMBER THIS GREAT CHART THAT
SHOWS --
THE COURT: THE AMOUNT OF DNA?
MR. HARMON: -- HOW MUCH MORE DNA IS IN THERE?
WELL, THAT IS JUST THE WHITE BLOOD CELLS. THE RED
BLOOD CELLS IN CONVENTIONAL SEROLOGY AND THE EAP IS RIGHT ON THAT
ELECTROPHORETOGRAM.
WELL, MR. SIMPSON IS EAP TYPE BA AND THAT IS NOT WHAT
117 TYPED TO. IT TYPED TO, AS I RECALL, A B INCONCLUSIVE OR A B
QUESTION MARK.
AND WHAT MR. SIMS, IF I AM ALLOWED TO
DO -- AND THIS IS PART OF THE LARGE PICTURE IN DISCUSSING AND
DEMONSTRATING IRREFUTABLY THAT 117 WASN'T PLANTED, THE FACT THAT
MR. SIMPSON'S EAP TYPE IS CHANGED, JUST LIKE MISS BROWN'S DID,
>FROM A BA TO A B, THE FACT THAT THE CONVENTIONAL SEROLOGY RESULTS
BY MR. MATHESON SHOW NO PGM ACTIVITY FROM 117.
AND MR. SIMS IS GOING TO DISCUSS PGM LITERATURE. PGM
IS A MUCH MORE PERSISTENT MARKER THAN EAP IS.
THESE ALL DEMONSTRATE TOTALLY CONCLUSIVELY THAT THAT
STAIN, 117, WAS OUT THERE FOR A LONG PERIOD OF TIME. THAT WE
WILL BE DISCUSSING SCIENTIFIC LITERATURE ABOUT PGM TO SHOW HOW IT
PERSISTS IN SPITE OF A LARGE NUMBER OF ENVIRONMENTAL INSULTS.
AND THE EAP ELECTROPHORETOGRAM IS RIGHT ON THERE AND
IF YOU RECALL BACK, THIS WAS BACK SOME WEEKS AGO, THE DEFENSE
MADE A BIG DEAL ON ONE OF THESE EXHIBITS. THEY WANTED US TO CUT
OFF 117. THIS IS WEEKS AND WEEKS AGO. I CAN'T EVEN REMEMBER
WHICH EXHIBIT THAT WAS.
BECAUSE THEY JUST DON'T WANT THE JURY TO SEE THAT MR.
SIMPSON'S EAP TYPE WENT FROM A BA TO A B INCONCLUSIVE, JUST LIKE
NICOLE BROWN SIMPSON'S DID ON THE FINGERNAIL CLIPPINGS.
SO THIS IS A SMALL PIECE OF THE BIG PICTURE THAT
SHOWS THAT 117 WAS OUT THERE FOR SOME PERIOD OF TIME. IT IS
CONSISTENT WITH HAVING BEEN OUT THERE SINCE JUNE 13TH.
(BRIEF PAUSE.)
MR. HARMON: YOUR HONOR, I NEED TO SUPPLEMENT THAT A LITTLE
BIT, TOO. THAT SAME ELECTROPHORETOGRAM HAS 115 AND 116 ON THERE.
115, 116 AND 117 ALL PRODUCED THE SAME CONVENTIONAL SEROLOGY
RESULTS. THIS BA LOOKS LIKE A B, LOOKS LIKE A DEGRADED BA. IT IS
A B INCONCLUSIVE, VERY MUCH LIKE WHAT MR. SIMS HAS DESCRIBED 84A
AND B ARE, NO PGM ACTIVITY.
AND LET'S NOT FORGET WHAT WE KNOW ABOUT 115. AND I
WILL BRING THAT UP AGAIN AT THE CLOSE OF THE BUSINESS TODAY, TOO,
YOUR HONOR. WE HAVE GOT A PHOTOGRAPH TAKEN ON JUNE 13TH --
THE COURT: NO, LET'S NOT GO INTO THAT.
MR. HARMON: THAT IS ALL PART OF THE PICTURE.
THE COURT: WE ARE ONLY TALKING ABOUT WHETHER OR NOT I'M
GOING TO ALLOW YOU ON REDIRECT TO GO BACK INTO 117.
AND IT HAD BEEN MY RECOLLECTION, ERRONEOUSLY, THAT
THAT HAD NOT BEEN COVERED IN ONE -- 117 HAD NOT BEEN COVERED IN
THE CROSS-EXAMINATION.
MR. SCHECK: MAY I BE HEARD?
THE COURT: AND I STAND CORRECTED.
MR. SCHECK: MAY I BE HEARD?
THE COURT: YES.
MR. SCHECK: IT WAS ONLY COVERED WITH RESPECT TO THE DNA
CONCENTRATION AND WHAT -- FIRST OF ALL, THE --
THE COURT: WHAT IS THE INFERENCE THAT YOU ARE GOING TO
ARGUE FROM THAT?
MR. SCHECK: THE INFERENCE IS WITH RESPECT TO THE AMOUNT OF
DNA IN THAT STAIN AND THAT IS IT.
WHAT MR. HARMON IS TRYING TO DO --
THE COURT: WAIT. THE INFERENCE THAT YOU ARE GOING TO
ARGUE FROM THAT IS THAT IT IS DIFFERENT THAN THE DNA ON 47, 48,
49, 50 AND 52?
MR. SCHECK: THE AMOUNTS.
THE COURT: YES.
MR. SCHECK: YES, AND THAT IS WHAT THE CHART DEPICTS.
THE COURT: ALL RIGHT.
MR. SCHECK: MR. HARMON HAS MADE A SERIES --
THE COURT: WHAT ARGUMENT ARE YOU GOING TO MAKE FROM THAT
POINT? WHAT IS THE RELEVANCE TO IT?
MR. SCHECK: IT HAS TO DO WITH THE RELATIVE AGE OF THE
DROPS, THERE IS NO QUESTION ABOUT THAT, BUT HE HAS MADE TWO
DIFFERENT ARGUMENTS HERE.
AND THE FIRST IS -- AND LET'S SORT THEM THROUGH,
BECAUSE IT IS OUTSIDE THE SCOPE OF THE CROSS IN THIS REGARD.
THE FIRST IS, THAT THERE IS -- THE 117 IS TYPED
INCONCLUSIVE. IT HAS NOTHING TO DO WITH B, IT IS JUST PERIOD
INCONCLUSIVE BY MATHESON.
SO IT SEEMS TO ME, UMM, THAT IT IS IMPROPER AND
OUTSIDE THE SCOPE CERTAINLY CROSS-EXAMINATION TO BE RAISING 117
IN THE CONTEXT OF THE FINGERNAIL DESCRIPTION AT THIS POINT IN
TIME WHEN THAT WASN'T GONE INTO AND AGAIN IT IS AN INCONCLUSIVE.
MR. HARMON IS TALKING ABOUT PGM NOW WITH RESPECT TO
THIS STAIN AND HOW THAT MIGHT RELATE TO THE AGE OF THE STAINS,
AND I THINK THAT THAT AGAIN IS OUTSIDE THE SCOPE OF THE
CROSS-EXAMINATION.
BUT CERTAINLY, USING 117 TO GO BACK INTO THE ISSUE OF
THE APPEARANCE OF -- OF A B WHEN IT WASN'T CALLED A B, IT WAS AN
INCONCLUSIVE, AND TO GO BACK INTO THE FINGERNAIL SCRAPINGS HAS
NOTHING TO DO WITH THE CROSS-EXAMINATION ON THAT.
AS TO WHAT HE IS SAYING HE WANTS TO DO WITH THIS
ELECTROPHORETOGRAM ON THE CONVENTIONAL SEROLOGY MARKERS, I DON'T
KNOW. IT SOUNDS LIKE IT IS OUTSIDE THE SCOPE THERE, TOO.
UMM -- UMM, AND IF, UMM -- I MEAN, THAT IS ABOUT ALL
I HAVE TO SAY ABOUT THAT, BUT PLAINLY, IT IS BEYOND THE SCOPE
WITH RESPECT TO WHAT HE IS DOING RIGHT NOW AND THAT IS DISCUSSION
OF THE FINGERNAIL SCRAPINGS.
MR. HARMON: RED BLOOD CELLS.
MR. SCHECK: WE DIDN'T GO INTO THAT AT ALL AND IT WASN'T
EVEN GONE INTO WITH MR. MATHESON, 117.
THE COURT: WELL, THE ISSUE IS 117 AND THE AGE OF THE BROOD
DROP.
MR. HARMON: THAT'S RIGHT. RED BLOOD CELLS, WHITE BLOOD
CELLS, THEY ARE WITHIN THE SAME CELL AND THEY WANT TO -- I MEAN,
YOU TALK ABOUT SOMETHING BEING BEYOND THE SCOPE. WE ARE TALKING
ABOUT THE SAME CELL AND THEY WANT TO PRECLUDE ME FROM TALKING
ABOUT IMPLICATIONS OF RED CELL TESTING BY SAYING WE ONLY TALKED
ABOUT WHITE BLOOD CELL TESTING, AND I THINK THAT IS CLEARLY A
SILLY PROPOSITION, YOUR HONOR, TO CONFINE ME.
WE ARE TALKING ABOUT 117. WE ARE TALKING ABOUT HOW
LONG 117 WAS THERE. WE ARE TALKING ABOUT WHETHER IT WAS PLANTED.
WE ARE TALKING ABOUT THE AMBIENT ENVIRONMENT THAT IT WAS IN, AS
OPPOSED TO ALL THE THINGS ALONG THE WALKWAY IN THE HOUSE.
THAT IS WHAT WE ARE GOING TO BE TALKING ABOUT WITH
THIS WITNESS, YOUR HONOR, AND THAT IS ALL WITHIN THE SCOPE OF
THAT BEAUTIFUL CHART THAT THEY PUT UP THERE. IT IS WITHIN THE
SCOPE OF THAT CHART.
MR. SCHECK: THE OTHER ANSWER TO THIS, IS THAT IF THEY WANT
TO MAKE SOME INFERENCES ABOUT -- THEY JUST HAD THIS WITNESS
TESTIFY THAT HE DISAGREES WITH THE CALL THAT MR. MATHESON MADE ON
THE EAP B UNDER THE FINGERNAILS, THAT HE WOULDN'T HAVE CALLED IT
A B.
NOW, WHAT THEY ARE TYING TO DO IS HAVE HIM TESTIFY
ABOUT THESE TEST RESULTS IN ANOTHER CONTEXT WITH RESPECT TO THE
GATE WHEN HE IS NOT THE PERSON THAT PERFORMED THESE TESTS, HAS
EXPRESS RESERVATIONS ABOUT THE RESULTS OF THESE TESTS. HE IS THE
WRONG WITNESS.
IF THEY WANT TO CALL A WITNESS TO TESTIFY ABOUT THIS
PARTICULAR TESTING AND LAY A FOUNDATION FOR IT IN RELATION TO THE
GATE AND HOW CONVENTIONAL MARKERS CAN OR CANNOT TELL YOU ANYTHING
ABOUT THE AGE OF THE BLOOD ON THE GATE, THEN THEY CAN CALL A
WITNESS TO TESTIFY TO IT, BUT IT IS OUTSIDE THE SCOPE OF THE
CROSS-EXAMINATION AND IT IS WITHOUT FOUNDATION AS TO THIS WITNESS
AS TO THESE TESTS WHICH HE HAS DISAVOWED.
HE WANTS THEM TO START TESTIFYING ABOUT RESULTS WHICH
THIS WITNESS HAS DISAVOWED. HE DISAGREED WITH THE CALL ON THE
FINGERNAIL SCRAPINGS AND NOW HE WANTS HIM TO TESTIFY ABOUT THE
SIGNIFICANCE OF THE BACK GATE WHICH WAS CALLED INCONCLUSIVE,
WHICH ORDINARILY -- IN FACT THIS WITNESS HAS SAID THAT
INCONCLUSIVES HE WON'T TESTIFY REPORT THE RESULTS.
THE COURT: MR. SCHECK, HOLD ON.
MR. HARMON, YOUR OFFER OF PROOF IS THAT YOU ARE GOING
TO ASK MR. SIMS TO TESTIFY TO THE DURABILITY OF PGM MARKERS IN
BLOOD LEFT AT CRIME SCENES?
MR. HARMON: RIGHT. I MEAN, WE ARE ONLY AT THE POINT NOW
WE ARE TALKING ABOUT EAP, AND SO WE HAVEN'T GOTTEN BEYOND THAT
WITH 117. YOU CAN LOOK AT THIS THING AND IT LOOKS JUST LIKE 84A
AND B AND THAT IS WHAT MR. SIMS IS GOING TO SAY.
THE EAP RESULT LOOKS JUST LIKE 84A AND B.
NOW, IF THIS IS PLANTED, UNLESS SOMEBODY TOOK MR.
SIMPSON'S RED BLOOD CELLS FROM THIS STAIN, IT GETS MUCH MORE
COMPLICATED IF THAT IS --
THE COURT: NO, NO, NO. PLEASE DON'T LAUNCH OFF ON THE
THINGS THAT I'M NOT ASKING YOU ABOUT.
MR. HARMON: WELL, WE ARE --
THE COURT: I'M ASKING YOU ARE YOU MAKING AN OFFER OF PROOF
--
MR. HARMON: YES, YOUR HONOR.
THE COURT: -- THAT YOU ARE THEN GOING TO GO INTO THE
DURABILITY OF THE PGM MARKER?
MR. HARMON: RIGHT, AND THE FACT THAT THERE WAS NO PGM
ACTIVITY IN THESE STAINS.
THE COURT: THAT IS GOING TO TELL ME THAT IT HAS BEEN OUT
THERE FOR A LONG TIME?
MR. HARMON: YES, YOUR HONOR, 84A AND B.
THE COURT: ALL RIGHT.
MR. SCHECK: MY OBJECTION IS TO IF HE IS RESTRICTING IT
THAT WAY, THAT IS ONE THING, ALTHOUGH I STILL THINK IT IS OUTSIDE
THE SCOPE, BUT I DON'T WANT HIM DOING THIS WITH RESPECT TO THE
FINGERNAIL SCRAPINGS IN THIS CONTEXT BECAUSE I DIDN'T GO INTO IT
IN THAT CONTEXT ON CROSS-EXAMINATION AND IT IS GOING TO OPEN UP A
WHOLE CAN OF WORMS THAT --
THE COURT: ALL RIGHT.
I UNDERSTAND THIS ARGUMENT TO BE IN THE CONTEXT OF
117, THE STAIN AT THE GATE.
MR. HARMON: 115. THEY ARE ALL IN THE SAME
ELECTROPHORETOGRAM, YOUR HONOR.
THE COURT: ALL RIGHT.
THE ISSUE WAS RAISED REGARDING THE AGE OF THE STAIN
ON THE GATE, I WILL ALLOW LIMITED ACCESS BY THE PROSECUTION ON
REDIRECT TO THAT ISSUE.
ALL RIGHT. I'M NOT WILLING TO TRY THE REST OF THE
CASE ON THIS.
MR. SCHECK: BUT I STILL HAVE A REMAINING OBJECTION THAT HE
DIDN'T EVEN DO THESE TESTS.
THE COURT: I UNDERSTAND THAT.
MR. SCHECK: AND HE IS ASKING HIM TO TALK ABOUT
INCONCLUSIVE.
THE COURT: AND I ANTICIPATE THE FOUNDATION WILL BE LAID,
BUT YOU DID BRING UP THE ISSUE OF THE EAP.
MR. SCHECK: ON THE AMOUNT OF DNA, THAT IS FINE, BUT THIS
IS AN APPLES AND ORANGES ISSUE.
THE COURT: NO. IT IS THE ISSUE THAT IS RELEVANT TO THE
CASE.
MR. SCHECK: I HAVE NO QUARREL WITH PUTTING IN SUCH
TESTIMONY THROUGH THE COMPETENT WITNESS WITH A PROPER FOUNDATION,
BUT THAT IS NOT --
THE COURT: ALL RIGHT. LET'S HAVE THE JURORS.
(BRIEF PAUSE.)
THE COURT: MR. SIMS, WHY DON'T YOU COME ON UP AND SAVE
SOME TIME.
MR. SCHECK: YOUR HONOR, WHILE HE IS APPROACHING, CAN WE
APPROACH THE BENCH AND PUT ON THE RECORD THAT OTHER MATTER THAT
YOU SAID I COULD PUT ON THE RECORD?
THE COURT: WELL, IT IS A LITTLE LATE AT THIS POINT IN
TIME.
(THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT, IN THE
PRESENCE OF THE JURY:)
THE COURT: THANK YOU, LADIES AND GENTLEMEN.
PLEASE BE SEATED.
THE RECORD SHOULD REFLECT WE HAVE BEEN REJOINED BY
ALL THE MEMBERS OF OUR JURY PANEL.
MR. GARY SIMS IS AGAIN ON THE WITNESS STAND
UNDERGOING REDIRECT EXAMINATION BY MR. HARMON.
MR. HARMON, YOU MAY CONTINUE.
MR. HARMON: THANK YOU, YOUR HONOR.
Q DO YOU HAVE THE ELECTROPHORETOGRAM IN FRONT OF YOU,
MR. SIMS, THAT HAS GOT 84A A AND B AND 117 ON IT?
A YES, I HAVE A PHOTOGRAPH OF THE EAP RESULTS AND ALSO
I HAVE SOME PHOTOS OF THE PGM RESULTS.
Q AND YOU HAVE REVIEWED MR. SIMS' RECORDS FOR THE
TESTING ON 117?
THE COURT: MR. MATHESON'S.
MR. HARMON: I'M SORRY, MR. MATHESON?
THE WITNESS: YES, I HAVE REVIEWED THAT.
Q BY MR. HARMON: WHAT IS YOUR OPINION ABOUT THE EAP
TYPE OF 117?
MR. SCHECK: OBJECTION, NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: WELL, I -- ABOUT THE ACTUAL TYPE, I THINK
THAT IS AN INCONCLUSIVE RESULT, ALTHOUGH I -- YES, I THINK THAT
IS AN INCONCLUSIVE RESULT. IT LOOKS SIMILAR TO --
MR. SCHECK: OBJECTION. MOVE TO STRIKE WHAT HE IS GOING TO
SAY NEXT.
THE COURT: OVERRULED. OVERRULED.
THE WITNESS: I WOULD JUST SAY IT IS AN INCONCLUSIVE
RESULT.
Q BY MR. HARMON: DOES IT LOOK SIMILAR TO 84A AND B?
MR. SCHECK: OBJECTION.
THE COURT: SUSTAINED.
Q BY MR. HARMON: HOW DOES IT COMPARE TO 84A AND B?
THE COURT: SUSTAINED. I AM NOT ALLOWING THAT, COUNSEL.
MR. HARMON: EXCUSE ME?
THE COURT: I AM NOT ALLOWING THAT.
Q BY MR. HARMON: WHAT BANDS DO YOU SEE THERE?
A ON 117?
Q YES.
A I SEE WHAT WE WOULD CALL THE B AND C BANDS. THERE IS
A POSSIBILITY OF SOME ACTIVITY IN THE CLOSER A BAND, BUT IT IS
SMEARED IN THAT AREA.
Q OKAY.
IF THE STAIN IN ITEM 117 IS ACTUALLY FROM THE
DEFENDANT, MR. SIMPSON, AND HIS EAP TYPE IS A BA, HOW DO YOU
COMPARE THE FACT THAT HE IS A BA WITH WHAT YOU SEE IN THE
ELECTROPHORETOGRAM?
MR. SCHECK: OBJECTION, NO FOUNDATION.
THE COURT: OVERRULED.
THE WITNESS: I -- I WOULDN'T EXCLUDE HIM BASED ON THIS
RESULT IF HE IS A BA.
Q BY MR. HARMON: WHY NOT?
A WELL, BECAUSE AGAIN I DON'T THINK THE PATTERN IS THAT
CLEAR THAT YOU COULD RULE OUT A BA ON THAT PARTICULAR RESULT.
Q WOULD IT BE FAIR TO SAY THAT THAT STAIN HAS BEEN
THERE FOR SOME TIME SIMPLY BASED ON THE APPEARANCE OF THE BANDS?
MR. SCHECK: OBJECTION, NO FOUNDATION.
THE COURT: SUSTAINED.
Q BY MR. HARMON: ARE YOU FAMILIAR WITH THE SCIENTIFIC
LITERATURE ON THE DEGRADATION OF THE EAP MARKER?
A YES.
Q ARE YOU FAMILIAR WITH HOW LONG IT PERSISTS IN
DIFFERENT CONDITIONS?
A YES, I HAVE SOME FAMILIARITY WITH THAT.
Q WHAT CAN YOU SAY ABOUT THE LENGTH OF TIME THE RESULTS
THAT YOU SEE FOR 170, THE ELECTROPHORETOGRAM, THAT STAIN WAS IN
THE POSITION THAT IT WAS REMOVED FROM?
A WELL, WITH THAT EAP RESULT BY ITSELF IT WOULD BE
DIFFICULT TO GIVE MUCH OF AN ESTIMATE ON THAT RESULT ALONE.
Q OKAY. WE WILL TALK ABOUT PGM IN A LITTLE BIT.
LET'S TALK ABOUT SUBSTRATE CONTROL PROCESSING. YOU
HAVE SHOWN US SOME OF THE RESULTS WHICH SHOW NO TYPING RESULTS ON
THE DQ-ALPHA STRIPS THAT WE SAW EARLIER THIS AFTERNOON?
A YES.
Q WHAT I WOULD LIKE TO DO IS ADDRESS THE PROCESSING OF
SUBSTRATE CONTROLS IN THREE AREAS:
SAMPLE MIXING IN THE FIELD, CELLS FROM INVESTIGATORS
OR LAB PERSONNEL CONTAMINATION, OR IN-LAB CONTAMINATION VIA
AMPLIFIED PCR PRODUCT, COMMONLY KNOWN AS PCR PRODUCT CARRY-OVER,
OKAY?
A OKAY.
Q DO YOU AGREE THAT THE PRESENCE OF CONTAMINANT IS
OFTEN READILY APPARENT?
A YES.
Q AND WHY IS THAT?
A BECAUSE IT SHOWS ITSELF, FOR EXAMPLE, WHERE IT COMES
THROUGH IN YOUR CONTROL SAMPLE OR YOU MAY SEE A LOT OF ADDITIONAL
BANDS -- NOT BANDS, BUT DOTS IN THE SAMPLE THAT SHOULDN'T HAVE
ADDITIONAL DOTS.
Q AND IF SO, DO YOU BELIEVE THAT APPROPRIATE CONTROLS
SHOULD BE USED THAT WOULD INDICATE THOSE SITUATIONS?
A YES, I DO.
Q AND DO YOU BELIEVE THAT NEGATIVE CONTROLS, INCLUDING
EXTRACTION REAGENT BLANKS AND UNSTAINED SUBSTRATE CONTROLS, WHEN
POSSIBLE, SHOULD BE RUN FOR EACH BATCH OF DNA ISOLATIONS?
A YES.
Q DO YOU ALSO BELIEVE THAT THE ABSENCE OF A PCR PRODUCT
IN THESE CONTROL REACTIONS ATTEST TO THE VALIDITY OF THE TYPING
RESULTS DERIVED FROM THE EVIDENCE SAMPLES?
A YES, I DO.
Q HAVE YOU RELIED ON AN ARTICLE BY CECELIA BEROLDINGEN
AND DR. BLAKE THAT WE ALLUDED TO ON DIRECT EXAMINATION?
A THAT IS THE ONE IN PCR TECHNOLOGY, I BELIEVE.
Q THAT'S CORRECT. IT IS A CHAPTER IN A BOOK. I
BELIEVE IT IS CHAPTER 17.
A YES, I HAVE.
Q AND DO YOU RECOGNIZE THE STATEMENTS I READ TO YOU AS
COMING FROM THAT CHAPTER THAT YOU RELIED ON BY DR. BLAKE AND
CECELIA VON BEROLDINGEN?
A THAT SOUNDS LIKE THE CHAPTER.
Q NOW, MR. SCHECK ASKED YOU NUMEROUS QUESTIONS ABOUT
HANDLING SUBSTRATE CONTROLS. DO YOU RECALL THAT IN THE
BEGINNING OF YOUR DIRECT EXAMINATION?
A YES.
Q AND DO YOU RECALL HIM USING THE WORD "HANDLING IN
PARALLEL" WITH THE EMPHASIS ON THE "PARALLEL"?
A YES.
Q NOW, IS THERE A DIFFERENCE BETWEEN SYSTEMATIC
HANDLING OF SUBSTRATE CONTROLS IN PARALLEL IN THE EVIDENCE
PROCESSING PHASE AND PROCESSING THOSE SUBSTRATE CONTROLS IN THE
SAME MANNER DURING THE DNA TYPING PROPOSES?
A NO. I THINK WE ARE TALKING ABOUT THE SAME BASIC
PROCESS OF ALTERNATING BETWEEN STAIN AND SUBSTRATE CONTROL, STAIN
AND SUBSTRATE CONTROL.
Q NOW, IS -- DO YOU HAVE ANY SCIENTIFIC PROBLEM WITH
NOT PROCESSING SUBSTRATE CONTROLS IN SOME INSTANCES ALONG WITH
THE STAINS WHICH THEY WERE COLLECTED ALONGSIDE?
A NOW, SPECIFICALLY YOU WOULD SAY THE POINT WHERE YOU
ARE DOING THE AMPLIFICATIONS?
Q YES.
A NO.
Q WOULD YOU EXPLAIN TO THE JURY WHY IN YOUR OPINION IT
IS NOT APPROPRIATE NOT TO HAVE GOTTEN SUBSTRATE CONTROLS AFTER
YOU HAD TYPED SOME OF THE EVIDENCE STAINS?
A WELL, AGAIN, IT IS JUST A MATTER OF YOU CAN --
DEPENDING ON WHAT YOU ARE GOING TO USE THE SUBSTRATE CONTROLS TO
INFER, AS LONG AS THEY ARE TYPED AT SOME POINT, THAT TELLS YOU
THAT THROUGH THAT PROCESS OF COLLECTION AND HOW THEY WERE
INITIALLY HANDLED IN THE LABORATORY THAT THERE IS NO -- THERE IS
NO PROBLEM WITH THOSE PROCESSES.
IN OTHER WORDS, YOU DIDN'T INDUCE SOME CONTAMINATION.
Q ARE YOU MISSING ANYTHING BY NOT PROCESSING FOR TYPING
THOSE SUBSTRATE CONTROLS AT THE SAME TIME YOU TYPED THE EVIDENCE
STAINS?
A NO, I DON'T THINK SO.
Q OKAY.
BUT LET'S REVERT BACK TO THE EVIDENCE PROCESSING IN
THE VERY BEGINNING WHEN, FOR EXAMPLE, STAINS ARE PROCESSED FOR
DRYING.
IS IT CRITICAL THAT SUBSTRATE CONTROLS BE PROCESSED
IN PARALLEL OR SYSTEMATICALLY ALTERNATION BY AN EVIDENCE STAIN
AND A SUBSTRATE CONTROL?
A WELL, AGAIN, IF YOU ARE GOING TO USE IT AS A CONTROL
TO THAT PROCESS, I WOULD SAY YES TO THAT. IN OTHER WORDS, YOU DO
ONE AND THEN ANOTHER.
Q HOW IS IT A CONTROL IN THAT CONTEXT?
A BECAUSE AGAIN, IF ANYTHING IS LIKELY TO SHOW A TYPE
CONTAMINATION, IT IS A SAMPLE THAT WOULD BE BLANK IN THE FIRST
PLACE, SO THAT ALL YOU HAVE IS CONTAMINATION, SO THE SUBSTRATE
CONTROL IS THE KEY, BECAUSE YOU ARE ALTERNATING THOSE BETWEEN
THE STAINS.
AND SO IF THERE WAS SOMETHING FROM THIS STAIN
CONTAMINATING IT, IT SHOULD THEN CONTAMINATE THE SUBSTRATE
CONTROL.
Q IS IT SOMEWHAT OF A BARRIER?
A YES. I THINK IT PROVIDES A LITTLE BUFFER BETWEEN
EACH ONE OF YOUR STAINS.
Q OKAY.
AND IF ONE ALSO WERE TO SIMPLY PROCESS ONE STAIN AT A
TIME, IN ADDITION TO ALTERNATING BETWEEN THE EVIDENCE STAIN AND
THE SUBSTRATE CONTROL, WOULD THAT PROVIDE AN ADDITIONAL
SAFEGUARD?
A YES, IT WOULD.
Q AGAINST SAMPLE MIX-UP?
A YES, IT WOULD.
Q OKAY.
NOW, LET'S -- THAT IS THE FIRST CATEGORY, SAMPLE
MIX-UP, EITHER IN COLLECTION OR PROCESSING WITHIN THE LAB.
LET'S MOVE TO CONTAMINATION BY INVESTIGATORS OR LAB
PERSONNEL.
WHAT IS THE ROLE THAT A SUBSTRATE CONTROL PLAYS IN
THAT PROCESS?
A THE SUBSTRATE CONTROL CAN PLAY THE ROLE OF SHOWING
THAT IT WAS IN AN AREA THAT WAS NEARBY, FOR EXAMPLE, WHEN WE
TALKED ABOUT ALL THE SNEEZING AND COUGHING, THAT THAT IS AN AREA
THAT WAS NEARBY THE STAIN, AND SO THERE IS NO EVIDENCE THEN IF --
ASSUMING IT COMES UP NEGATIVE, THERE IS NO EVIDENCE THEN THAT
THAT KIND OF CONTAMINATION OCCURRED ON THAT PARTICULAR SAMPLE.
Q NOW, IS THERE ANY SCIENTIFIC BASIS FOR THE NOTION
THAT A SNEEZING INVESTIGATOR, HIS SNEEZES WILL ONLY GO ON
EVIDENCE STAINS AND NOT ON SUBSTRATE CONTROLS?
A I HAVE NEVER HEARD OF THAT.
Q OKAY.
NOW, I KNOW THE FBI, THEY DIDN'T DO SNEEZING IN THEIR
STUDY, RIGHT?
A THAT IS MY UNDERSTANDING.
Q HAS ANYBODY EVER DONE ANY RESEARCH ON ANY AVERSION
BIOLOGICAL MATERIAL MIGHT HAVE TO THESE BLANK SUBSTRATE CONTROLS?
A WELL, WE HAVE STUDIED SWATCHES THAT ARE BLANK. I
MEAN, AFTER ALL, IT IS A BLANK SWATCH THAT IS USED -- THAT STARTS
OUT BLANK THAT IS USED TO SOAK UP A STAIN, SO THEY CERTAINLY HAVE
AN AFFINITY FOR BIOLOGICAL MATERIAL, THESE SWATCHES DO.
Q OKAY.
AND THE THIRD AREA THAT YOU DISCUSSED ON DIRECT
EXAMINATION, IN-LAB CONTAMINATION PCR PRODUCT CARRY-OVER.
ARE THERE TWO AREAS OF CONTROLS OR TWO DIFFERENT SETS
OF CONTROLS IN THIS CONTEXT TO SAFEGUARD AGAINST CONTAMINATION?
A YES, THERE ARE.
Q WHAT ARE THEY?
A WELL, AGAIN THERE ARE THE CONTROLS THAT THE SUBSTRATE
CONTROLS OFFER, AND THEN THERE ARE ALSO THE CONTROLS THAT -- SUCH
AS THE EXTRACTION REAGENT BLANK, THE NEGATIVE AMPLIFICATION
CONTROL.
THOSE ARE ALL IMPORTANT CONTROLS.
Q AND IF THOSE CONTROLS ALL TEST NEGATIVE, WHAT DOES
THAT TELL YOU ABOUT IN-LAB CONTAMINATION?
A WELL, IT GIVES YOU CONFIDENCE IN YOUR RESULTS BECAUSE
YOU DON'T -- YOU WOULD THEN SEE NO EVIDENCE THAT YOU HAVE IN-LAB
CONTAMINATION.
Q OKAY.
ARE YOUR TESTS DESIGNED TO DETECT THAT IF IT EXISTS?
A YES, THEY ARE. WE ARE CONSTANTLY MONITORING FOR THAT
SITUATION. WE ARE NOT JUST TAKING STEPS TO AVOID IT, BUT WE ARE
USING THESE CONTROLS AS A WAY OF MONITORING IT TO SEE WHETHER OR
NOT IT MAY ACTUALLY OCCUR.
Q SO IN THIS CONTEXT, IF THE EVIDENCE STAIN WAS --
WOULD BE CONTAMINATED, THERE IS NO -- YOU WOULD EXPECT THE
SUBSTRATE CONTROL TO BE CONTAMINATED?
A IF YOU HAVE A GENERAL CONTAMINATION PROBLEM, THEN YOU
WOULD EXPECT ALL THOSE TO BE AFFECTED.
Q OKAY.
IS THERE ANY SCIENTIFIC REASON YOU CAN THINK OF WHY
PCR PRODUCT CARRY-OVER WOULD AVOID SUBSTRATE CONTROLS OR NEGATIVE
CONTROLS?
A IS THERE ANY SCIENTIFIC REASON I CAN THINK OF? NO.
AGAIN, YOU LOOK AT THE TOTALITY OF THE RESULTS AND --
NO, I THINK THE ANSWER TO THAT QUESTION IS JUST NO, THERE IS --
NO.
Q MR. SCHECK ASKED YOU ABOUT AMPLICONS. DO YOU
REMEMBER THAT?
A YES.
Q AND YOU ADMITTED THAT ABOUT A HUNDRED UNITS MIGHT BE
ENOUGH TO PRODUCE A DETECTABLE OR TYPEABLE CONTAMINANT?
A SOMETHING LIKE THAT, YES.
Q NOW, DO THESE AMPLICONS, DO THEY GO OUT LIKE IN
MILITARY UNITS OF A HUNDRED-UNIT SIZES WHEN THEY GO OUT?
MR. SCHECK: OBJECTION, ARGUMENTATIVE TO THE FORM.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
Q BY MR. HARMON: ARE THESE AMPLICONS DISCIPLINED?
MR. SCHECK: YOUR HONOR --
THE WITNESS: NOT TO MY KNOWLEDGE.
MR. SCHECK: OBJECTION, MOTION TO STRIKE.
THE COURT: OVERRULED.
Q BY MR. HARMON: ARE SOME OF THEM --
THE COURT: IS THERE ANY MOLECULAR AFFINITY THAT THESE
THINGS HAVE, ANY BONDING AFFINITY THAT THESE THINGS HAVE?
THE WITNESS: THE ONLY TIME YOU HAVE ANY AFFINITY WOULD BE
WHEN THEY ARE ALL IN A DROPLET, FOR EXAMPLE, BUT ONCE THEY ARE
DISPERSED, THEY ARE DISPERSED.
Q BY MR. HARMON: YOU COULD SEE A DROP? IT IS BIG
ENOUGH?
A IT WOULD BE A VERY -- YOU COULD HAVE A VERY SMALL
DROP, BUT YOU COULD SEE THAT TYPE OF SPOT, YES. IT IS EXTREMELY
SMALL.
Q AND IF ONE OF THESE 100 AMPLICONS WENT OUT IN THE
ENVIRONMENT SOMEWHERE, THAT IS THE MINIMAL -- MINIMUM DETECTABLE
AMOUNT THAT YOU WOULD HAVE TO HAVE TO PRODUCE A TYPEABLE RESULT?
A APPROXIMATELY. THAT IS AN APPROXIMATION.
Q BUT THEY WOULD ALL HAVE TO END UP ON THE SAME PLACE?
A WELL, THEY WOULD ALL HAVE TO END UP IN THE SAME
TEST-TUBE IS WHAT I THINK THE POINT WAS.
Q MR. SIMS, I WANT TO ASK YOU A SERIES OF QUESTIONS
ABOUT YOUR LABORATORY PRACTICES AND ABOUT THE PRESENCE OF
SUBSTRATE CONTROLS AND NEGATIVE CONTROLS PLAY A ROLE. OKAY?
A OKAY.
MR. SCHECK: I'M FEARFUL THAT THIS IS ASKED AND ANSWERED,
YOUR HONOR. I THINK WE HAVE BEEN OVER THIS FOUR TIMES NOW.
THE COURT: START AGAIN.
Q BY MR. HARMON: LET'S ASSUME ALL THE SUBSTRATE
CONTROLS AND NEGATIVE CONTROLS PRODUCED NO TYPING RESULTS, OKAY?
A OKAY.
Q IS THE SUBJECT OF SAMPLE TO SAMPLE
CROSS-CONTAMINATION ADEQUATELY ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOES NOT CHANGE GLOVES BETWEEN SAMPLES?
A YES.
Q WHY IS THAT?
A WELL, BECAUSE AGAIN THE CONTROLS SERVE AS A WAY OF
CHECKING OUT YOUR SYSTEM, AND YOU LOOK AT THE TOTALITY OF THE
RESULTS AND ALL THOSE CONTROLS CAME OUT NEGATIVE, THEN THE
INFERENCE WOULD HAVE TO BE THAT THE STAINS WERE PROPERLY TYPED.
Q OKAY.
THE SAME ASSUMPTION. IS THE SUBJECT OF SAMPLE TO
SAMPLE CROSS-CONTAMINATION ADEQUATELY ADDRESSED IF THOSE CONTROLS
PRODUCE NO TYPING RESULTS, EVEN IF THE FORENSIC SCIENTIST DOES
NOT CHANGE GLOVES BETWEEN DIFFERENT STAINS FROM DIFFERENT SOURCES
OF PEOPLE?
MR. SCHECK: YOUR HONOR, I DO THINK WE HAVE BEEN OVER THIS
IN EVERY CONTEXT.
THE COURT: OVERRULED. NOT SPECIFICALLY.
MR. SCHECK: THEN I WOULD OBJECT TO THE FORM "ADEQUATELY
ADDRESSES" AS BEING VAGUE.
THE COURT: OVERRULED.
THE WITNESS: YES, IT DOES ADEQUATELY ADDRESS THAT.
Q BY MR. HARMON: OKAY. SAME CONDITIONS.
IS THE SUBJECT OF SAMPLE TO SAMPLE
CROSS-CONTAMINATION ADEQUATELY ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOES NOT HANDLE A REFERENCE SAMPLE IN A DIFFERENT ROOM
THAN HE HANDLED THE EVIDENCE STAINS?
A AGAIN, PROVIDED YOU HAVE ALL THOSE CONTROLS, I WOULD
SAY YES, IT DOES ADEQUATELY ADDRESS THAT.
Q THE SAME ASSUMPTIONS.
IS THE SUBJECT OF SAMPLE TO SAMPLE
CROSS-CONTAMINATION ADEQUATELY ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOES NOT HANDLE EVIDENCE FROM SEPARATE CRIME SCENES IN
-- IN A DIFFERENT ROOM?
A YES.
Q AND THE SAME CONDITIONS.
IS THE SUBJECT OF SAMPLE TO SAMPLE
CROSS-CONTAMINATION ADEQUATELY ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOES NOT AVOID HANDLING MULTIPLE SAMPLES DURING THIS
SAME PERIOD OF TIME?
A YES.
Q SAME ASSUMPTION.
IS THE SUBJECT OF SAMPLE TO SAMPLE
CROSS-CONTAMINATION ADEQUATELY ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOES NOT COMPLETELY PREVENT AEROSOL OF ANY TYPE?
A YES. AGAIN, PROVIDED THAT YOU HAVE GOT ALL THOSE
SUBSTRATE CONTROLS WORKING IN A NEGATIVE FASHION, I WOULD AGREE
WITH THAT.
Q TELL US ABOUT AEROSOLS AND THE SUBSTRATE CONTROL AND
NEGATIVE CONTROLS. WHY WOULD THAT BE A SAFEGUARD?
A WELL, BECAUSE AN AEROSOL IS A GENERALLY DISPERSED
PHENOMENON AND SO YOU WOULD EXPECT -- IF THERE IS CONTAMINATION,
YOU WOULD EXPECT IT TO LAND ON THE VARIOUS ITEMS ALL -- THAT WERE
ANYWHERE IN A CERTAIN PROXIMITY.
Q IF THE CONTROLS ALL TEST NEGATIVE, IF THE -- IS THE
SUBJECT OF SAMPLE TO SAMPLE CROSS-CONTAMINATION ADEQUATELY
ADDRESSED EVEN IF THE FORENSIC SCIENTIST DOES NOT CHANGE PAPER
BETWEEN SAMPLES?
A YES.
Q IS THE SUBJECT ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOES NOT FLAME HIS TWEEZERS OR TOOLS?
A YES.
Q IS THE SUBJECT ADDRESSED EVEN IF THE FORENSIC
SCIENTIST DOESN'T STRADDLE INK HIS LAB NOTES?
A YES.
Q NOW, YOU DO STRADDLE INK YOUR LAB NOTES, RIGHT?
A YES.
Q NOW, YOU END UP GOING BACK INTO THE LABORATORY WHERE
DNA IS PREPARED AT SOME POINT, RIGHT?
A YES, I REMOVE A LAB COAT AND GO BACK IN THERE, YES.
Q BUT IT IS THE SAME HAIRDO?
A YES.
Q SAME CLOTHING?
A YES.
Q YOU DON'T STRADDLE INK YOURSELF BEFORE YOU GO BACK
THERE, DO YOU?
A NO.
Q DO THE SUBSTRATE CONTROLS, NEGATIVE CONTROLS, PROVIDE
AN ADEQUATE SAFEGUARD AGAINST YOU BRINGING DNA BACK IN THE LAB
THAT HAS BEEN AMPLIFIED, A PCR PRODUCT?
A YES. AGAIN, I THINK YOU ARE TALKING ABOUT THE BODY
OF ALL THOSE CONTROLS, YES.
Q AND DOES THE -- ASSUME ALL THE CONTROLS ARE NEGATIVE.
IS THE SUBJECT OF SAMPLE TO SAMPLE CROSS-CONTAMINATION ADEQUATELY
ADDRESSED EVEN IF THE FORENSIC SCIENTIST DOES NOT HAVE A LAMINAR
FLOW HOOD?
A YES.
Q MR. SIMS, WHAT COMBINATION OF EVENTS WOULD HAVE HAD
TO HAVE OCCURRED IN ORDER TO ALLOW CROSS-CONTAMINATION BETWEEN,
LET'S SAY, ROCKINGHAM STAIN NO. 12 AND ALL OF THE BUNDY WALKWAY
STAINS WHICH WOULD HAVE ALLOWED YOU TO TYPE THE BUNDY STAINS TO
GIVE ROCKINGHAM TYPES, TYPES THAT WERE ORIGINALLY AT ROCKINGHAM?
MR. SCHECK: OBJECTION, CALLS FOR SPECULATION.
THE COURT: OVERRULED.
THE WITNESS: IN OTHER WORDS, THIS WOULD BE TO GET THE SAME
TYPING RESULT ON THE BUNDY STAINS, NO RESULTS ON THE SUBSTRATE
CONTROLS AND THOSE BUNDY STAIN RESULTS WOULD BE THE SAME TYPES AS
FOUND ON THE ROCKINGHAM STAINS.
IS THAT THE HYPOTHETICAL?
Q BY MR. HARMON: RIGHT. AND NO RESULTS FROM BUNDY.
A AND NO RESULTS FROM -- I'M SORRY, NO --
Q NO RESULTS FROM WHAT WAS THERE ORIGINALLY AT BUNDY?
A OKAY.
WELL, THERE WOULD HAVE TO BE A LOT OF THINGS GOING
ON. THE BUNDY RESULT WOULD HAVE TO HAVE TOTALLY DEGRADED. THE
BUNDY STAINS, I'M SORRY, WOULD HAVE TO HAVE TOTALLY DEGRADED AND
THEN SOMEHOW THIS CONTAMINATION WOULD HAVE TO SORT OF PLAY A GAME
OF HOPSCOTCH AND MISS THE SUBSTRATE CONTROL AND JUST HIT ON THE
STAINS.
Q WHAT ABOUT YOUR ABILITY TO STILL TYPE THE ROCKINGHAM
STAINS?
A WELL, IN OTHER WORDS, IF ALL THE DNA HAD GONE FROM
THE ROCKINGHAM? I MEAN, IT IS NOT REALLY CONCEIVABLE TO ME THAT
THAT WOULD HAPPEN.
Q OKAY.
HOW LIKELY ARE THESE THINGS TO HAVE HAPPENED TO ALL
OF THE BUNDY STAINS THAT YOU PROCESSED?
MR. SCHECK: I THINK THIS IS WITHOUT FOUNDATION. GOES
BEYOND ANYTHING SUGGESTED ON CROSS-EXAMINATION.
THE COURT: SUSTAINED.
Q BY MR. HARMON: BASED ON YOUR REVIEW OF THE
SCIENTIFIC LITERATURE, YOUR EXAMINATION OF THESE STAINS, BOTH THE
ROCKINGHAM AND BUNDY STAINS, YOUR FAMILIARITY WITH THE
CONVENTIONAL SEROLOGY RESULTS IN THIS CASE, DO YOU HAVE AN
OPINION ABOUT HOW LIKELY ONLY THE BUNDY WALKWAY STAINS WOULD BE
TO BE -- WERE TOTALLY DEGRADED, SO DEGRADED TO PRODUCE NO TYPING,
THAT THERE WAS A TRANSFER FROM THE ROCKINGHAM STAINS --
THE COURT: COUNSEL, LET ME SAVE YOU THE TROUBLE.
MR. HARMON: SURE.
THE COURT: I'M GOING TO SUSTAIN THE OBJECTION BECAUSE I
THINK IT CALLS FOR SPECULATION.
THE JURY KNOWS WHAT THE CONDITIONS ARE AND THE
LIKELIHOOD IS FOR THEM TO DETERMINE.
Q BY MR. HARMON: MR. SIMS, I WANT TO ASK YOU A SERIES
-- A COUPLE OF HYPOTHETICALS AND I WILL EXPLAIN THE QUESTION
FIRST AND THEN I WILL PROVIDE THE HYPOTHETICAL INFORMATION FOR
YOU.
OKAY?
A OKAY.
Q THE QUESTION WHICH I WILL ASK YOU AFTER I PROVIDE THE
HYPOTHETICAL INFORMATION IS EVEN IF ALL OF THE ABOVE HAPPENED, IS
IT CONCEIVABLE THAT CROSS-CONTAMINATION OCCURRED BETWEEN THE
DEFENDANT'S REFERENCE SAMPLE AND THE -- AND THE BUNDY STAINS
DURING THE DRY -- THE STAIN DRYING PROCESS?
OKAY. THAT IS WHAT THE QUESTION WILL BE.
MR. SCHECK: I'M GOING TO OBJECT TO THE PREMISE.
THE COURT: REPHRASE THE QUESTION -- THE PROBLEM IS WITH
THE WORD "CONCEIVABLE."
MR. HARMON: OKAY.
Q WELL, LET ME GIVE YOU THE HYPOTHETICAL AND MAYBE IT
WILL BE EASIER TO DO THE QUESTION THEN.
LET'S ASSUME THAT ALL THE BUNDY WALKWAY STAINS THAT
YOU SAW, 47 THROUGH 52, ABSENT OR LESS 51, WERE SEEN AT MIDNIGHT
BY POLICE OFFICERS, THAT THE ROCKINGHAM STAINS WERE SEEN BY
POLICE OFFICERS AT 6:00 IN THE MORNING, THAT ALL OF THESE STAINS
WERE COLLECTED WITH THEIR ATTACHED -- OR WITH THEIR SUBSTRATE
CONTROLS ON JUNE 13TH BEFORE THE DEFENDANT'S REFERENCE SAMPLE WAS
OBTAINED.
FURTHERMORE, THAT ALL OF THESE EVIDENCE STAINS FROM
BUNDY CONSIST OF MULTIPLE SWATCHES RANGING FROM FOUR TO SEVEN
INDIVIDUAL SWATCHES, THAT ALL OF THESE STAINS WERE STORED IN
PLASTIC BAGS ALONG WITH A PLASTIC BAG CONTAINING THE SUBSTRATE
CONTROL, IN INDIVIDUAL COIN ENVELOPES, ONE COIN ENVELOPE PER
STAIN.
THEY WERE PUT IN A TRUCK IN THE MONTH OF JUNE IN LOS
ANGELES WHERE THEY STAYED FOR SEVERAL HOURS.
THEY WERE ULTIMATELY TAKEN BACK TO THE LOS ANGELES
POLICE DEPARTMENT WHERE THEY WERE PROCESSED FOR DRYING.
THE STAINS WERE PROCESSED ONE STAIN AT A TIME, ONE
COIN ENVELOPE AT A TIME, SYSTEMATICALLY ALTERNATING BETWEEN THE
EVIDENCE STAINS AND THE SUBSTRATE CONTROLS.
MR. SCHECK: YOUR HONOR, I'M GOING TO HAVE A PROBLEM WITH
THIS HYPOTHETICAL AS BEING INCOMPLETE GIVEN -- SINCE I ALREADY
KNOW --
THE COURT: COUNSEL, HE HASN'T EVEN GOTTEN CLOSE TO
FINISHING YET, SO THAT OBJECTION IS PREMATURE.
MR. SCHECK: ALL RIGHT. THAT IS THE PROBLEM.
THE COURT: YOU WERE AT THE SYSTEMATIC ALTERNATE PROCESSING
OF THE EVIDENCE STAINS AND SUBSTRATE CONTROL.
Q BY MR. HARMON: DURING THE DRYING PROCESS THAT THE
DEFENDANT'S REFERENCE SAMPLE WAS BROUGHT OR DURING -- BEFORE THE
DRYING PROCESS THE DEFENDANT'S REFERENCE SAMPLE WAS BROUGHT INTO
THE ROOM AND KEPT IN A PLASTIC GARBAGE BAG WHERE IT REMAINED
OVERNIGHT.
THE NEXT MORNING THE STAINS WERE DRY, THEY WERE
INDIVIDUALLY, ONE COIN ENVELOPE AT A TIME, PUT INTO BINDLES, A
SEPARATE BINDLE FOR THE EVIDENCE SWATCHES, MULTIPLE SWATCHES, A
SEPARATE BINDLE FOR THE SUBSTRATE CONTROL, PUT BACK INTO THE
ORIGINAL COIN ENVELOPES, ALWAYS ONLY WORKING ON ONE COIN ENVELOPE
AT A TIME.
AND FURTHERMORE, I WILL ADD THE NEXT PROVISO THAT
ULTIMATELY ALL OF THE SUBSTRATE CONTROLS TESTED NEGATIVE.
A OKAY.
Q OKAY.
IS IT POSSIBLE THAT THE DEFENDANT'S REFERENCE SAMPLE
COULD HAVE CROSS-CONTAMINATED ANY OF THE EVIDENCE, BASED ON ALL
OF THE THOSE FACTS?
MR. SCHECK: YOUR HONOR, I HAVE MULTIPLE OBJECTIONS TO THIS
HYPOTHETICAL.
THE COURT: LEGAL BASIS?
MR. SCHECK: LEGAL BASIS, IT IS WITHOUT FOUNDATION AND IT
DOESN'T ADDRESS -- IT ONLY GOES UP TO A CERTAIN POINT IN TIME.
MANY FACTS ARE LEFT OFF.
THE COURT: INCOMPLETE?
MR. SCHECK: INCOMPLETE AND -- INCOMPLETE AND NOT EVEN --
THE COURT: INCOMPLETE COVERS IT, COUNSEL.
MR. SCHECK: INCOMPLETE.
THE COURT: ALL RIGHT. OVERRULED.
THE WITNESS: WELL, AS YOU HAVE DESCRIBED
THAT --
(LAUGHTER.)
THE COURT: EXCUSE ME. JUST A SECOND.
THIS IS NOT AN AUDIENCE PARTICIPATION FUNCTION.
THE NEXT TIME I HEAR A REACTION FROM THE AUDIENCE, I
AM CLEARING THE AUDIENCE.
MR. SCHECK: YOUR HONOR, IN TERMS OF INCOMPLETE, JUST TO BE
CLEAR ABOUT MY OBJECTION --
THE COURT: I UNDERSTAND COUNSEL.
MR. SCHECK: -- IS THAT INCOMPLETE --
THE COURT: COUNSEL, I'M NOT ASKING YOU TO ARGUE THE
OBJECTION.
MR. SCHECK: NO, NO, I'M NOT.
I WANT TO BE CLEAR THAT MY OBJECTION IS NOT JUST
INCOMPLETE TO THE STEPS UP TO THIS POINT, BUT INCOMPLETE WITH
RESPECT TO SUBSEQUENT STEPS.
THE COURT: COUNSEL, I'M NOT ASKING YOU TO ARGUE THE
OBJECTION.
MR. SCHECK: I DON'T MEAN TO ARGUE IT; I JUST WANTED TO
MAKE IT CLEAR.
THE COURT: PROCEED.
THE WITNESS: AS I UNDERSTAND THE HYPOTHETICAL, AND ONE OF
THE KEYS NOW IS THAT THE BLOOD SAMPLE IS IN THAT -- THE REFERENCE
SAMPLE IS IN A PLASTIC BAG, I DON'T SEE HOW THAT IS POSSIBLE.
Q BY MR. HARMON: AND WHAT -- WHAT EFFECT, EVEN THOUGH
THAT ALONE I THINK YOU BELIEVE COVERS IT, WHAT EFFECT OF THE
SUBSTRATE CONTROL NOT PRODUCING TYPEABLE RESULTS HAVE ON CLEARING
UP ANY QUESTION YOU MIGHT HAVE?
A WELL, AGAIN, THEY ADDRESS THE CLEANLINESS OF THE
WHOLE PROCESS, IF YOU WILL. IN OTHER WORDS, THEY ARE SHOWING
THAT WHERE THERE IS NO DNA, NO BLOOD COLLECTED, THAT WE DON'T GET
A TYPING RESULT, SO I THINK THAT IS IMPORTANT.
Q OKAY.
MR. SIMS, I WANT TO TAKE THAT HYPOTHETICAL AND I'M
GOING TO START AT THE BEGINNING AGAIN AND THEN TAKE IT A LITTLE
BIT FURTHER.
OKAY?
A OKAY.
MR. SCHECK: YOUR HONOR, ALL THE WAY FROM THE BEGINNING
AGAIN?
THE COURT: IS THAT REDUNDANT?
MR. HARMON: ALL THE WAY FROM THE BEGINNING AGAIN OR MY
QUESTION, YOUR HONOR?
THE COURT: WHY DON'T YOU ADD YOUR ADDITIONAL FACTORS.
MR. HARMON: SURE.
Q DO YOU HAVE EVERYTHING FRESH IN MIND? WE GOT YOU
RIGHT UP TO THE REFERENCE SAMPLE IN THE PLASTIC BAG. THE NEXT
MORNING ALL THOSE SWATCHES ARE PUT IN COIN ENVELOPES.
A OKAY.
Q PUT IN SEPARATE BINDLES IN COIN ENVELOPES.
A OKAY.
SO NOW THEY ARE IN COIN ENVELOPES AND THEN THE
PLASTIC BAG STILL CONTAINS THE REFERENCE SAMPLE?
Q RIGHT.
AND IS THERE -- THESE ARE TWO SEPARATE CRIME SCENE
STAINS.
LET ME ADD A FEW OTHER ELEMENTS TO IT.
FROM AMONG THE STAINS ARE TWO ITEMS FROM BUNDY.
MR. SCHECK: YOUR HONOR, I'M GOING TO OBJECT AT THIS POINT
THAT IT IS WOEFULLY INCOMPLETE IN TERMS OF --
THE COURT: PREMATURE, COUNSEL.
OVERRULED.
Q BY MR. HARMON: TWO OF THE BUNDY STAINS WHICH WERE
PROCESSED THAT ARE NOT ALONG THE WALKWAY PRODUCE RESULTS WHICH
ARE NOT CONSISTENT WITH MR. SIMPSON, BUT ARE CONSISTENT WITH
NICOLE BROWN.
A OKAY.
Q THEY ARE PROCESSED SYSTEMATICALLY IN THE SEQUENCE OF
EVENTS.
MR. SCHECK: OBJECTION, WITHOUT FOUNDATION.
THE COURT: OVERRULED.
Q BY MR. HARMON: NONE OF THE SUBSTRATE CONTROLS
PROCESSED, EITHER DURING THE ROCKINGHAM PROCESSING OR THE BUNDY
PROCESSING, GAVE TYPING RESULTS.
OKAY?
A OKAY.
Q AND FURTHERMORE, THAT THE BUNDY MULTIPLE SWATCH
STAINS, NUMBER -- NUMBERS 47, 48, 50 AND 52, WERE DIVIDED AT SOME
POINT AFTER THE PROCESSING, SENT TO SEPARATE LABS, AND CONCURRING
TYPING RESULTS WERE PRODUCED.
A OKAY.
Q OKAY.
BASED ON ALL OF THOSE FACTORS, IS IT YOUR OPINION OR
WHAT IS YOUR OPINION ABOUT THE POSSIBILITY OF CROSS-CONTAMINATION
OCCURRING BETWEEN THE ROCKINGHAM SAMPLES AND THE BUNDY SAMPLE?
MR. SCHECK: YOUR HONOR, OBJECTION, INCOMPLETE, AND I DON'T
KNOW -- IT IS BASED ON TESTIMONY -- I HAVE TO MAKE MY OBJECTION
AT THE SIDE BAR WITHOUT -- ASSUMES FACTS NOT IN EVIDENCE AND IS
MISLEADING, EXTREMELY MISLEADING AND INCOMPLETE.
THE COURT: OVERRULED.
MR. SCHECK: IF YOU WANT ME TO EXPLAIN -- I SHOULD EXPLAIN
THAT.
THE COURT: OVERRULED.
Q BY MR. HARMON: DO YOU UNDERSTAND ALL THE CONDITIONS
IN THERE, MR. SIMS?
A YES, I THINK I DO.
Q OKAY.
BEFORE -- BEFORE YOU ADDRESS THE BOTTOM LINE QUESTION
THERE, WHAT IS THE ROLE OF THE STAINS FROM THE BUNDY WALKWAY, THE
FACT THAT THEY HAVE -- THEY CONSIST OF MULTIPLE SWATCHES, SOME OF
THEM UP TO SEVEN INDIVIDUAL SWATCHES THAT WERE COLLECTED, IN
PROVIDING AN ANSWER ABOUT CROSS-CONTAMINATION BETWEEN THE BUNDY
STAINS AND THE ROCKINGHAM EVIDENCE STAINS?
MR. SCHECK: OBJECTION, OUTSIDE THE SCOPE OF HIS OWN
HYPOTHETICAL, CONFUSING, AND INCONSISTENT WITH THE FACTS.
THE COURT: OVERRULED.
DO YOU UNDERSTAND THE QUESTION?
THE WITNESS: YES, I DO -- I THINK I DO, YOUR HONOR.
WELL, TO ME THE MULTIPLICITY OF THE MORE THAN ONE
SWATCH BEING AROUND, THAT WOULD MEAN THAT ANYTHING THAT WOULD BE
CONTAMINATING, IT WOULD SEEM UNLIKELY THAT IT WOULD CONTAMINATE
-- IN OTHER WORDS, IT IS UNLIKELY THAT YOU WOULD SEE ONE
CONTAMINATION OVER HERE, BUT THEN YOU WOULD GET A DIFFERENT
RESULT FROM A SWATCH THAT WAS TESTED IN A DIFFERENT LABORATORY.
IN OTHER WORDS, IT SEEMS -- THE CONSISTENCY OF THE
RESULTS BETWEEN LABORATORIES ON THESE MULTIPLE SWATCHES SUGGESTS
TO ME THAT THE RESULTS ARE VALID.
Q OKAY.
AND WHAT ABOUT THE --
MR. SCHECK: MOVE TO STRIKE THE ANSWER WITH RESPECT TO THE
PREMISE OF THE HYPOTHETICAL.
THE COURT: OVERRULED.
MR. SCHECK: HE ANSWERED A DIFFERENT QUESTION.
THE COURT: OVERRULED.
Q BY MR. HARMON: OKAY.
THEN LET'S GET BACK TO THE ROLE THAT THOSE MULTIPLE
SWATCHES PLAY, AS WELL AS ALL OF THE OTHER FACTORS THAT I HAVE
PROVIDED YOU IN ASSESSING THE POSSIBILITY THAT THERE WAS
CROSS-CONTAMINATION BETWEEN ANY OF THE BUNDY STAINS AND THE
ROCKINGHAM STAINS.
A OKAY.
MR. SCHECK: THAT IS NOT A QUESTION.
THE COURT: SUSTAINED.
LAST QUESTION. MAKE IT A GOOD ONE.
MR. HARMON: EXCUSE ME, YOUR HONOR?
THE COURT: THIS IS YOUR LAST QUESTION.
Q BY MR. HARMON: BASED ON THE HYPOTHETICAL INFORMATION
THAT I HAVE PROVIDED TO YOU, DO YOU HAVE, AND IF SO WHAT IS YOUR
OPINION ABOUT THE -- THE POSSIBILITY OF CROSS-CONTAMINATION
BETWEEN THE ROCKINGHAM STAINS AND THE BUNDY STAINS?
MR. SCHECK: OBJECTION, VAGUE AS TO WHICH HYPOTHETICAL
WHEN.
THE COURT: OVERRULED.
THE WITNESS: YES. I WOULD -- MY OPINION WOULD BE THAT
THERE IS CERTAINLY NO INDICATION THAT SUCH CONTAMINATION
OCCURRED.
Q BY MR. HARMON: WHAT INDICATION WOULD YOU LOOK FOR?
MR. SCHECK: OH, OBJECTION, ASKED AND ANSWERED.
THE COURT: SUSTAINED.
ALL RIGHT.
LADIES AND GENTLEMEN, WE ARE GOING TO TAKE OUR RECESS
FOR THE EVENING AT THIS TIME.
AND WE ARE ALSO GOING TO TAKE A BRIEF BREAK IN THE
TESTIMONY OF MR. SIMS.
AS YOU RECOLLECT, MR. SIMS IS FROM OUT OF TOWN, HAS
SOME PERSONAL MATTERS THAT HE NEEDS TO ATTEND TO AND HE WILL BE
BACK ON THE WITNESS STAND AVAILABLE I THINK THURSDAY OR FRIDAY;
IS THAT CORRECT?
THE WITNESS: THURSDAY, YOUR HONOR.
THE COURT: THURSDAY. ALL RIGHT.
MR. SIMS, I'M GOING TO RELEASE YOU AT THIS TIME,
ORDER YOU NOT TO DISCUSS YOUR TESTIMONY WITH ANYBODY OTHER THAN
THE ATTORNEYS IN THE CASE.
YOU ARE ORDERED TO RETURN HERE 8:45 ON THURSDAY.
THE WITNESS: OKAY.
THE COURT: ALL RIGHT. THANK YOU, SIR.
LADIES AND GENTLEMEN, PLEASE REMEMBER ALL MY
ADMONITIONS TO YOU.
DON'T DISCUSS THE CASE AMONG YOURSELVES, FORM ANY
OPINIONS ABOUT THE CASE, DON'T ALLOW ANYBODY TO COMMUNICATE WITH
YOU, DON'T CONDUCT ANY DELIBERATIONS UNTIL THE MATTER HAS BEEN
SUBMITTED TO YOU.
WE WILL STAND IN RECESS UNTIL NINE O'CLOCK TOMORROW
MORNING.
ALL RIGHT. WE WILL BE IN RECESS.
(AT 4:36 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE
HELD IN OPEN COURT:)
THE COURT: ALL RIGHT.
THE RECORD SHOULD REFLECT THE JURORS HAVE WITHDRAWN
>FROM THE COURTROOM.
MR. SCHECK, YOU WANTED TO ADD SOME ADDITIONAL
COMMENTARY TO YOUR OBJECTION?
MR. SCHECK: YES.
IF THE COURT FOLLOWS, AND I REALIZE THAT THESE THINGS
ARE COMPLICATED AT THE END OF THE DAY, AND I AM TRYING TO ABIDE
BY THE COURT'S RULINGS WITH RESPECT TO NOT MAKING SPEAKING
OBJECTIONS AND ARGUMENT WHEN THE HYPOTHETICAL QUESTIONS ARE BEING
ASKED, BUT THE -- THE PROBLEM I HAVE WITH MR. HARMON'S
HYPOTHETICALS IS THAT HE ASKED ONE SERIES OF HYPOTHETICAL
QUESTIONS BASED ON WHAT HAPPENED TO THE SPECIMENS INTO THE
EVIDENCE PROCESSING ROOM AND HIS WHOLE -- THE LONG HYPOTHETICAL
WAS BASED ON EXPOSURE TO THE REFERENCE SAMPLE.
AND HE STOPPED THE FIRST HYPOTHETICAL WITH THE
REFERENCE SAMPLE BEING IN THE PLASTIC BAG. THEN HE ASKED ANOTHER
HYPOTHETICAL, CONTINUING IN THAT POINT WHERE HE TALKED ABOUT THE
SWATCHES BEING IN THE BINDLES, LEAVING OUT THE SCRAPING THEM OUT
OF THE TEST-TUBES AND THE REST OF IT.
AND THEN ASKED A FURTHER QUESTION ABOUT EXPOSURE,
CROSS-CONTAMINATION, EXPOSURE TO THE REFERENCE TUBE.
WHAT HE DID NOT INCLUDE IN THE HYPOTHETICAL WAS THE
FACT THAT THE REFERENCE SAMPLE WAS BROUGHT INTO THE EVIDENCE
PROCESSING ROOM, AS HE WELL KNOWS FROM ALL HIS QUESTIONS IN THE
UPCOMING TESTIMONY OF MR. YAMAUCHI, POURED OUT INTO A CARD AT THE
SAME TIME AS THE OTHER SAMPLES ARE THERE.
NOW, THAT IS THE MOST CRITICAL QUESTION IN THE
HYPOTHETICAL WITH RESPECT TO CROSS-CONTAMINATION OF THE REFERENCE
SAMPLE AND SO ASKING THOSE TWO HYPOTHETICALS IN THAT FASHION AND
LEAVING OUT THAT CRITICAL STEP WAS EXTREMELY MISLEADING BECAUSE
IT DIDN'T EVEN INCLUDE THE MOST IMPORTANT FACT AND THAT WAS
EXPOSURE TO THE REFERENCE SAMPLE.
AND THAT IS WHAT I WANTED TO ADD BECAUSE I THINK THAT
THAT WAS EXTREMELY MISLEADING.
ALSO, HE IS ASKING ONLY ONE QUESTION HERE AND THAT
HAS TO DO WITH SUBSTRATE CONTROL AND HE IS ASKING THE SAME
QUESTION 25 TIMES AND SO THAT WAS THE BASIS OF MY OBJECTIONS TO
THESE HYPOTHETICALS IN THIS FASHION.
THE OTHER THING THAT BOTHERED ME WITH RESPECT TO -- I
WANTED TO PUT ON THE RECORD BEFORE, AND THAT IS I THOUGHT WE HAD
SOME UNDERSTANDINGS ABOUT WHAT WAS GOING TO BE SAID AND NOT SAID
CONCERNING THE PERFECTLY PROPER AND IN THIS CASE INDISPENSABLE
EFFORTS OF THE DEFENSE EXPERT TO SIT THERE AND PROVIDE
DOCUMENTATION OF THE RESULTS.
THE COURT: WELL, AFTER YOU MADE A COMMENT AND THE
OBJECTION WE DIDN'T HEAR ANYTHING MORE ABOUT DR. BLAKE.
MR. SCHECK: THAT IS NOT TRUE. WE HEARD A LOT MORE.
THE COURT: NO, NO. I WAS PAYING ATTENTION AFTER YOU MADE
THAT COMMENT.
MR. SCHECK: WHAT WE HEARD WAS CONTINUED QUESTIONS ABOUT,
WELL, YOU TOOK A LOOK AT THAT PHOTOGRAPH THERE AND DR. BLAKE WAS
THERE WHEN THAT PHOTOGRAPH WAS TAKEN AND DR. BLAKE WAS THERE WHEN
THAT WAS REVIEWED, IMPLYING THAT HE HAD -- HE SAID SOMETHING TO
THIS WITNESS WITH RESPECT TO WHETHER THE CALL WAS RIGHT OR WRONG
WHEN THE WITNESS HAD PREVIOUSLY TESTIFIED THAT HE HAD NOTHING.
AND WHAT UPSETS ME, YOUR HONOR, IS THAT THIS
PROSECUTOR REFUSED TO TURN OVER THEIR PICTURES, THEIR PICTURES OF
THE STRIPS AND THE D1S80 HYBRIDIZATIONS TO US ON THE GROUNDS THAT
WE HAD DR. BLAKE THERE TAKING THE PICTURES.
AND IT IS PERFECTLY EVIDENT THAT THE REASON THAT HE
REFUSED TO DO THAT IS THAT HE WANTS TO ASK A QUESTION AND A
SERIES OF QUESTIONS ABOUT DR. BLAKE BEING THERE TAKING THE
PICTURES.
SO I DON'T HAVE AVAILABLE TO ME THE PICTURES THAT
THIS WITNESS USED AND THIS WITNESS TOOK. INSTEAD I HAVE TO USE
THE PICTURES WHICH HE DOESN'T INTRODUCE ON DIRECT EXAMINATION
SAYING HE SHOWED HIM ONE DOT-BLOT STRIP. I HAD TO DO THAT.
NOW, THE PICTURES I HAVE ARE MY PICTURES, THE ONES
THAT DR. BLAKE TOOK.
AND THEN ON REDIRECT EXAMINATION THIS WHOLE THING WAS
COMPLETELY PLANNED AND ORCHESTRATED TO DO INDIRECTLY WHAT HE
CAN'T DO, WHICH IS TRYING TO INJECT SOMEHOW THAT DR. BLAKE
APPROVES OF THIS WITNESS' PROCEDURES AND THAT HIS PRESENCE IN
THAT LABORATORY HAS SOME SIGNIFICANCE DIFFERENT THAN WHAT WE ALL
KNOW IT HAS, WHICH IS SIMPLY TO DOCUMENT.
NOW, I HAVE NO COMPUNCTION WHATSOEVER WITH RESPECT TO
DR. BLAKE BEING THERE, DOCUMENTING THIS AND EVERYTHING ELSE.
WHAT I THINK IS IMPROPER, HIGHLY IMPROPERLY, AND IT
IS EXACTLY WHAT THIS PROSECUTOR HAS BEEN TRYING TO DO FROM
BEGINNING TO END, IS SIMPLY THAT DR. BLAKE HAS EVER TOLD THIS
WITNESS ANYTHING ABOUT WHETHER HIS RESULTS ARE RIGHT OR WRONG AND
THAT IS WHAT HE IS HAS BEEN TRYING TO DO THROUGHOUT ALL OF THIS
AND THIS BUSINESS WITH THE PICTURES IS REAL DIRTY POOL BECAUSE HE
REFUSED TO TURN OVER THOSE PICTURES WHICH I AM ORDINARILY
ENTITLED TO IN DISCOVERY.
I WIND UP TURNING OVER ALL MY PICTURES TO HIM AND I
THINK THAT WAS WRONG.
THE COURT: MR. HARMON, WILL YOU ADDRESS THE FIRST ISSUE
REGARDING HYPOTHETICAL QUESTIONS FIRST.
MR. HARMON: THIS IS REALLY AMUSING, YOUR HONOR.
ON A DAY WHEN WE HAD TO FORCE OUR WITNESS TO ASSUME
SOMETHING THAT WAS INCONSISTENT WITH HIS OPINION, THE SAME DAY
WHEN I ASK A HYPOTHETICAL THAT IS CONSISTENT WITH MANY OF THE
FACTS, THEY WANT TO FORCE ME TO ADD SOMETHING TO THE
HYPOTHETICAL.
IT IS KIND OF LIKE OUR BOARD THERE AND SAY YOU CAN'T
USE THOSE BOARDS UNTIL WE PUT WHAT WE WANT YOU TO PUT UP THERE.
UMM, YOU KNOW, I THINK IF YOU JUST DECIDED THIS
FAIRLY AND EQUALLY YOU WOULD REALIZE THAT WHILE THIS IS PAINFUL,
PAINFUL, PAINFUL TO HEAR ABOUT SUBSTRATE CONTROLS, THEY ARE THE
KEY TO THIS CASE.
AND IF MY HYPOTHETICAL IS WOEFULLY DEFICIENT IN LIGHT
OF THE FACTS OF THIS CASE, THE JURY IS GOING TO SCOFF AT ME AND
REJECT OUR SUGGESTION THAT THERE IS NO PROBLEM HERE.
I DON'T THINK WE ARE TOO WORRIED ABOUT THAT, YOUR
HONOR.
BUT CLEARLY THEY WANT TO ASK HYPOTHETICALS THAT HAVE
NOTHING, ABSOLUTELY NOTHING TO DO WITH THIS CASE, AND THEY WANT
TO SHOW THE BEAUTIFUL STRIPS UP THERE AND SHOW ARTIFACTS AND
THEN WHEN WE HAVE HYPOTHETICALS THAT ARE BASED ON THE CLEAR
UNMISTAKABLE FACTS, YOU REALLY CAN'T SCREW THIS UP IF YOU HAVE
SUBSTRATE CONTROLS AND THEY TEST CLEAN, THEY WANT ME TO ADD A
WHOLE BUNCH OF OTHER THINGS.
COLLIN YAMAUCHI -- WE WILL COVER ALL THIS WHEN COLLIN
COMES IN, BUT I THINK I SHOULD BE ABLE TO ADDRESS HYPOTHETICALS.
MINE ARE AT LEAST BASED ON SOME FACTS. WE DON'T HAVE TO MAKE A
GUY HAVE AN OUT-OF-BODY EXPERIENCE TO PRETEND HE HAS AN OPINION
OTHER THAN HE DOES.
SO I THINK I'M TOTALLY CONSISTENT WITH THE CASE LAW,
AND I KNOW IT IS PAINFUL FOR THEM, BUT SOMETIMES THE CASE LAW
MAKES IT PAINFUL FOR DEFENSE ATTORNEYS, AS WELL AS PROSECUTORS.
ON THOSE OTHER POINTS, I --
MR. SCHECK: YOUR HONOR, BEFORE HE GETS TO THE OTHER POINT
--
THE COURT: NO, NO. NO, NO. DON'T INTERRUPT, MR. SCHECK,
PLEASE.
MR. HARMON: ON THOSE OTHER POINTS, I DIDN'T REFUSE TO TURN
THEM OVER. I HAVE ALWAYS TOLD YOU IF YOU TELL ME TO DO
SOMETHING, I WILL DO IT BECAUSE YOU'VE TOLD ME TO. WE ARGUED
THIS POINT.
I WISH I WAS AS BRILLIANT AS THEY CLAIM. YOU KNOW,
THIS WAS ABOUT FOUR MONTHS AGO THAT THIS WAS ALL PLANNED OUT. IT
DIDN'T HAPPEN THAT WAY. I THINK WE HAVE TO, YOU KNOW --
PARENTHETICALLY, DOES DR. BLAKE APPROVE?
WELL, YOU WOULD HAVE TO BE A FOOL WHEN YOU LOOK AT
THEIR MARCH 17TH LETTER DUMPING HIM FROM THE WITNESS LIST TO
REALIZE THAT THE ANSWER IS OF COURSE HE DOES. THAT IS WHY IS NOT
ON THE WITNESS LIST AND THAT HE WILL NEVER GET THE BLUE CHAIR
TREATMENT IN THIS COURTROOM BECAUSE HE DOES APPROVE.
SO I UNDERSTAND HOW PAINFUL IT IS AT THIS POINT TO
HAVE THE DOOR START CLOSING, YOUR HONOR, BUT THE LAW PROVIDES ME
AN OPPORTUNITY TO DO WHAT I'VE DONE AND I'VE DONE IT AND THE
RECORD IS CLEAR ON THAT POINT.
MR. SCHECK: YOUR HONOR, HE DIDN'T ANSWER THE QUESTION THAT
YOU ASKED HIM. YOU HEARD WHAT I PROPOSED.
THE QUESTION IS IN THIS HYPOTHETICAL THAT HE ASKED
ABOUT EXPOSURE OF THE DEFENDANT'S REFERENCE SAMPLE TO THE
SPECIMENS. IN HIS SECOND HYPOTHETICAL HE DID NOT INCLUDE THE
EXPOSURE OF THE DEFENDANT'S REFERENCE SAMPLE TO THE SPECIMENS.
THAT WAS THE ONLY ISSUE.
AS TO THE ISSUE OF SUBSTRATE CONTROLS, THAT WILL
OBVIOUSLY BE DEALT WITH, BUT THAT WAS THE POINT OF HIS
HYPOTHETICAL AND HE LEFT OUT THE MOST IMPORTANT FACT IN HIS
HYPOTHETICAL WHEN HE WENT THROUGH HIS CONTINUATION AND THAT IS
WHAT I CONSIDER IMPROPER AND MISLEADING.
IT IS CLEAR HE DID THAT AND THAT WHOLE LONG-WINDED
ANSWER ABOUT HOW ALL THESE THINGS ARE SO PAINFUL AND ALL THE REST
OF IT, HE DOESN'T ANSWER THE QUESTION.
MR. HARMON: CAN I --
MR. SCHECK: HE DIDN'T DO IT. DID YOU DO IT?
MR. HARMON: NO.
MR. SCHECK: DID YOU INCLUDE IT? NO.
THE COURT: WAIT, WAIT, COUNSEL. YOU ARE UNDER
INSTRUCTIONS NOT TO ADDRESS EACH OTHER.
ADDRESS YOUR COMMENTS TO THE COURT.
MR. SCHECK: NO PROBLEM.
THE COURT: I HAVEN'T COLLECTED ANY MONEY THIS WEEK, HAVE
I? YOU GUYS ARE CLOSE.
MR. HARMON.
MR. HARMON: THERE IS A SIMPLE REASON. COLLIN YAMAUCHI
HASN'T TESTIFIED YET. WHEN HE TESTIFIES AND I LAY THE FOUNDATION
FOR WHAT REALLY HAPPENED AT THAT POINT, THEN I WILL BE GLAD TO,
OR IF I DON'T, THEN MR. SCHECK WILL BE HAPPY TO, BUT HAVING
RECENTLY SPENT MANY HOURS WITH HIM, IT IS REALLY NOT QUITE THE
WAY MR. SCHECK THINKS IT HAPPENED, SO I WILL BE HAPPY TO, WHEN
THERE IS EVIDENCE, CONTRARY TO WHAT THEY DO ABOUT, YOU KNOW,
PRETENDING THAT THINGS ARE OTHER THAN THE WAY THEY REALLY ARE, I
WILL BE HAPPY TO ASK THAT HYPOTHETICAL WHEN THERE IS A FACTUAL
BASIS FOR IT AND WE WILL PROBABLY START HITTING ON THAT TOMORROW
AFTERNOON, YOUR HONOR.
AND THEN I WILL BE HAPPY -- IF MR. SCHECK WANTS TO
TAKE MINE AND ADD TO THAT, I WILL BE HAPPY TO ASK IT ON DIRECT
EXAMINATION OF MR. YAMAUCHI FOR HIM, SO WE DON'T HAVE THIS
PROBLEM AGAIN, BUT THE HYPOTHETICAL IS REALLY JUST BASED ON WHAT
HAS BEEN PRESENTED IN THIS CASE TO DATE.
WE SURE DON'T WANT TO CONFUSE THE JURY AND HAVE THEM
THINK THAT THEY HEARD SOMETHING THAT THEY DIDN'T HEAR YET.
THE COURT: ALL RIGHT. THANK YOU, COUNSEL.
ALL RIGHT.
THE COURT'S RULING REGARDING THE APPROPRIATENESS OF
THE HYPOTHETICAL MR. HARMON, I AM CONCERNED, HOWEVER, ABOUT THE
INFERENCES REGARDING DR. BLAKE'S PARTICIPATION. HIS PRESENCE IS
CERTAINLY SOMETHING YOU CAN GO INTO.
HOWEVER, ANY INFERENCE THAT HE CONDUCTED TESTING OR
APPROVES OR DISAPPROVES OF ANYTHING THAT WAS DONE IS OFF -- OFF
LIMITS.
MR. HARMON: SURE.
THE COURT: ALL RIGHT. WE ARE IN RECESS.
MR. HARMON: YOUR HONOR, COULD I JUST MAKE ONE LAST
INQUIRY?
DO WE HAVE ANY NEWS ON THE GATE STAIN?
THE COURT: NO, NO.
MR. HARMON: NOTHING?
THE COURT: I'M SORRY, STAND CORRECTED.
MR. DOUGLAS, THE DISCOVERY ISSUE?
MR. DOUGLAS: GOOD AFTERNOON, YOUR HONOR.
YOUR HONOR, OVER THE WEEKEND I HAD OCCASION TO SPEAK
PERSONALLY WITH DR. MICHAEL BADEN AND DR. BARBARA WOLF. I
ATTEMPTED TO SPEAK WITH DR. LEE ABOUT THIS. HE WAS ON TRAVEL,
ALTHOUGH BOTH OF THEM HAD CONVERSATIONS WITH DR. LEE.
DOCTORS BADEN AND WOLF WERE PRESENT AT THE BUNDY
CRIME SCENE, YOUR HONOR, ON JUNE 24TH AND THEY WERE ALLOWED INTO
THE CRIME SCENE ON THAT OCCASION BY MR. LEWIS BROWN WHO WAS ALSO
PRESENT.
AT THAT TIME THEY TELL ME THAT THE CRIME SCENE HAD
ALREADY BEEN WASHED DOWN. THEY TELL ME THAT THEY NEVER VISITED
THE CRIME SCENE ON JUNE THE 17TH AS MAY HAVE BEEN SUGGESTED.
AT NO TIME ON THAT OCCASION, YOUR HONOR, DID THEY
TOUCH, HANDLE OR REMOVE ANY STAINS RELATED TO THE REAR GATE OR
ITEMS 115, 116 OR 117.
THE FOLLOWING DAY, YOUR HONOR, ON JUNE THE 25TH, THEY
RETURNED TO THE -- TO THE SAME LOCATION WITH DR. LEE AND AGAIN ON
THAT DAY THEY DID NOT TOUCH, HANDLE OR REMOVE ANYTHING RELATED TO
ANY STAINS RELATED TO THE REAR GATE.
THEY NOTED AT THAT TIME THAT THAT REAR GATE HAD ALL
KINDS OF POWDER FROM FINGERPRINTING AND THEY DID NOT HANDLE IT.
THEY OBJECT, YOUR HONOR, TO ANY SUGGESTIONS THAT THEY
CAUSED THE REMOVAL OF ANY STAINS FROM THAT GATE AND THEY PLAYED
NO ROLE IN DOING ANYTHING LIKE THAT.
I'M INFORMED, YOUR HONOR, THAT THERE WERE SOME NOTES
THAT WERE PREPARED BY DR. LEE THAT WROTE DOWN THAT THE VISIT HAD
OCCURRED ON THE 17TH, BUT IN FACT WOLF AND BADEN HAD COME ON THE
24TH. LEE JOINED THEM SATURDAY, THE 25TH.
THE COURT: ALL RIGHT.
SO YOUR REPRESENTATION TO THE COURT IS THAT NONE OF
THESE PERSONS TOOK ANY SAMPLE FROM THAT SCENE?
MR. DOUGLAS: CORRECT, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. HARMON: DOES THAT INCLUDE DR. LEE? THAT WASN'T CLEAR.
MR. DOUGLAS: CORRECT.
MR. HARMON: OKAY.
WHAT I WOULD LIKE THE COURT TO DO IS AS I MENTIONED,
THINGS HAVE GOTTEN CHOPPED UP IN THIS CAMERA REVIEW.
I WOULD REQUEST THE COURT TO REVIEW ANY NOTES TO
ENSURE THAT THIS IS NOT SOMETHING IN THERE AND THEN THAT IS THE
END OF IT, IF THE COURT CAN DO THAT.
THE COURT: ALL RIGHT.
I DON'T RECOLLECT ANY DISCUSSIONS REGARDING ANYTHING
REGARDING ANY OF THE EXPERT EXAMINATIONS OF THE BUNDY CRIME
SCENE.
MR. HARMON: OKAY.
SO WILL THE COURT JUST TAKE ONE LOOK AT IT AND THEN
LEAVE IT AT THAT?
THE COURT: I CAN TELL YOU IT IS NOT THERE.
MR. HARMON: THANK YOU.
THE COURT: ALL RIGHT. WE ARE IN RECESS.
(AT 4:50 P.M. AN ADJOURNMENT
WAS TAKEN UNTIL, TUESDAY,
MAY 23, 1995, 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
MONDAY, MAY 22, 1995
VOLUME 151
PAGES 28537 THROUGH 28812, INCLUSIVE
APPEARANCES: (SEE PAGE 2)
JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378
OFFICIAL REPORTERS
APPEARANCES:
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
I N D E X
INDEX FOR VOLUME 151 PAGES 28537 - 28812
-----------------------------------------------------
DAY DATE SESSION PAGE VOL.
MONDAY MAY 22, 1995 A.M. 28537 151
P.M. 28663 151
-----------------------------------------------------
LEGEND:
MS. CLARK - MC
MR. HODGMAN - H
MR. DARDEN D
MS. LEWIS - L
MS. KAHN - K
MR. GOLDBERG - GB
MR. CLARKE - GC
MR. HARMON - RH
MR. GORDON - G
MR. SHAPIRO - S
MR. COCHRAN - C
MR. DOUGLAS - CD
MR. BAILEY - B
MS. CHAPMAN - SC
MS. BLASIER- BB
MR. UELMEN - U
MR. SCHECK - BS
MR. NEUFELD - N
-----------------------------------------------------
CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
SIMS, GARY 151 (RESUMED)
28542BS
(RESUMED) 28671BS 28703RH
-----------------------------------------------------
ALPHABETICAL INDEX OF WITNESSES
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.
SIMS, GARY 151 (RESUMED)
28542BS
(RESUMED) 28671BS 28703RH
EXHIBITS
PEOPLE'S FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.
274 - PHOTOGRAPH OF 28731 151
6 DQ-ALPHA POLYMARKER STRIPS-HYBRIDIZATION
-----------------------------------------------------
DEFENSE FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.
1165 - CHART 28542 151
ENTITLED "DEFENSE HYPOTHETICAL"
1166 - PHOTOGRAPH OF 28581 151
12 DQ-ALPHA POLYMARKER STRIPS
1166-A - PHOTOGRAPH OF 28637 151
12 DQ-ALPHA POLYMARKER STRIPS WITH 2 ARROWS
1166-B - PHOTOGRAPH OF 28635 151
12 DQ-ALPHA POLYMARKER STRIPS WITH 2
GREEN ARROWS
1167 - PHOTOGRAPH OF 28613 151
THE CONSOLE AREA OF BRONCO VEHICLE
1168 - PHOTOGRAPH OF 28645 151
11 DQ-ALPHA POLYMARKER STRIPS OF EVIDENCE
COLLECTED AT BUNDY
1169 - 2-PAGE DOCUMENT 28677 151
ENTITLED "2-PERSON GENOTYPE COMBINATIONS WHICH
WHEN COMBINED WITH O.J. SIMPSON'S GENOTYPE WILL
ACCOUNT FOR DQ-ALPHA ALLELES IN STAIN NO. 303."
1170 - PHOTOGRAPH OF 28683 151
8 DQ-ALPHA POLYMARKER STRIPS
1171 - CHART DRAWN BY 28699 151
MR. SCHECK
2
??
28584
