Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

ALSO PRESENT: Arthur Walsh, Deputy City Attorney.

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran and Mr. Scheck. The People are represented by Mr. Clarke. The jury is not present. Counsel, anything we need to take up before we launch back into this?

MR. COCHRAN: If I might, your Honor, just--good morning, your Honor.

THE COURT: Good morning, Mr. Cochran.

MR. COCHRAN: Good seeing you, your Honor. It is a good day. You don't seem to share my view of that. Judge, I wanted to just indicate to you that Mr. Sullivan is present and I indicated to him that I do not believe we will be calling Mr. Bosco today. We are going to be awaiting your Honor's ruling, at any rate, and he is in Orange County, and I have assured him that he would have at least a half day's notice before we would call him, and I wanted to make sure that was all right, so he is free to leave at this point?

THE COURT: Yes.

MR. SULLIVAN: Thank you.

MR. COCHRAN: Thank you, your Honor.

THE COURT: All right. Anything else we need to take up before we launch into Dr. Rieders? Mr. Walsh, good morning.

MR. WALSH: Yes, your Honor. The Defense served on the City of Los Angeles a subpoena duces tecum with a return set for today. I have filed a motion to quash that subpoena this morning. If the Court is going to hear that, I will wait, otherwise I will come back whenever you want to hear argument on that.

THE COURT: Mr. Cochran, when do you want to hear this? This was just presented to me about two minutes ago. I have not had the opportunity to read it.

MR. COCHRAN: We want to get to the jury as soon as possible. I would like to have this heard absolutely as soon as possible, your Honor. I have indicated to counsel in this search for truth I'm surprised they made this motion, but they have, and I want to resolve it as soon as possible, but we want these documents, so as soon as you set it.

THE COURT: I'm still working on the shield matter.

MR. COCHRAN: Yes. I appreciate that, your Honor.

THE COURT: Which although this is related to that.

MR. COCHRAN: Right. This should come behind that, right. Don't you think? I suppose--

THE COURT: All right. Today being Wednesday, August 2nd, how about if we take this up Friday morning, August 4th?

MR. COCHRAN: Nine o'clock?

THE COURT: Nine o'clock.

MR. COCHRAN: That's fine.

MR. WALSH: Thank you, your Honor. That will be fine.

THE COURT: All right. Thank you, counsel.

MR. COCHRAN: That is fine.

THE COURT: All right. Anything else before we invite the jurors to rejoin us?

MR. COCHRAN: I don't think so, your Honor.

MR. CLARKE: Just relating to the board, your Honor.

THE COURT: Mr. Clarke, good morning, sir.

MR. CLARKE: Good morning, your Honor. I don't know where the boards are at the moment.

MR. SCHECK: They are right over there. Do you want to work with the small copies?

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. CLARKE: Your Honor, would the Court like to view these on the easel?

THE COURT: Whatever is easiest. Probably the easel over by the jury box will be easiest to see.

(Brief pause.)

THE COURT: Let's have it quiet in the courtroom, please.

(Brief pause.)

THE COURT: All right. This is a board title of which is, "Percent of contamination by control" made through July, 1994.

MR. CLARKE: Yes. The Court may recall we had informal discussions with the Court last week about these various boards, and what I'm going to direct my comments to are simply four charts, for lack of a better term, that detail percentages of contamination. And if the Court will recall, they describe contamination was a percentage of typing strips as well as a percentage of runs or PCR hybridization runs--I'm sorry--PCR runs themselves. And the objection that I have to each of them is as to their argumentative nature. Now, this one, for instance, is labeled "Percent of contamination by controls" and I think when this is presented in this type of chart form, and this one refers to negative amplification controls, as well as extraction controls, that when this chart is used in that fashion I think it really constitutes closing argument as opposed to a legitimate use of a chart with a witness in front of the jury. Now, I think what may be most expeditious is if I showed the Court each chart and then address any further comments.

THE COURT: All right.

(Brief pause.)

THE COURT: All right. The next chart is entitled, "Runs: Percent with contamination by month, May, 1993 through August, 1994." It is in terms of percent. Along the bottom axis it appears to be ordered by month, May, `93, until August, `94. Underneath that are what appear to be fractions which are probably the actual number of runs.

MR. SCHECK: It is the underlying data.

THE COURT: The raw data. All right. Let's see the next one.

(Brief pause.)

THE COURT: All right. The third one is, "Strips: Percent of contamination and/or artifacts by month, May, 1993, through August, 1994." Again in terms of percent with the bottom axis being monthly with a fraction representing the raw data.

MR. CLARKE: And then one more, your Honor.

THE COURT: These are very nice, Mr. Scheck.

MR. SCHECK: Thank you, your Honor.

THE COURT: You are welcome.

(Brief pause.)

THE COURT: All right. The last one is, "Runs and strips: Percent of contamination and/or artifacts."

MR. SCHECK: Or that probably should be titled on the top "May through July, 1994." We need to put the date on there. Maybe I will have to spoil the presentation of it by writing in by hand "May through July, 1994" on the top. I didn't notice that. This is the bracketed period.

THE COURT: All right.

MR. CLARKE: The reason I believe these charts are argumentative to the point that they should not be utilized during the presentation--

THE COURT: Excuse me. Next time you go through those doors, you watch the doors.

AN UNIDENTIFIED LAW CLERK: All right. Sorry, your Honor.

MR. CLARKE: --is I believe they are argumentative, in particular because of the use of the terms "Contamination and artifacts." It is our belief that Dr. Gerdes will concede that in many, if not most instances, what is alleged to be contamination he will concede may not be contamination, so consequently in the course of presenting this type of information with the use of the term "Contamination and artifacts," I think it is argumentative to the point that it shouldn't be used during the presentation with the witness. I think it is the type of material that may be appropriate in closing argument, but I think to utilize that in front of a jury will again run a substantial risk of both misleading and confusing the jury due to its argumentative nature of these four charts.

THE COURT: All right. Mr. Scheck.

MR. SCHECK: Your Honor, we did go over these last Friday and these boards are precisely the same form as we all viewed them last Friday, except that we added over the bottom, as I indicated to you, the raw numbers. What these represent are Dr. Gerdes' findings. He will explain, as we've discussed at length, by showing the actual strips and explaining what is meant by an "Artifact," which ones those apply to, and the basis of his finding that there is a contaminant on a run. And these charts are simply without argument listing his findings, just as the boards that the Prosecution put up list their findings, so this is what is in his opinion a scientific fact. That is going to be his testimony and they are free to attack it, so it is simply a record of his findings, his table, which has been turned over to the Prosecution, his raw notes. These are his findings.

THE COURT: All right.

MR. SCHECK: I just so--out of completeness, Mr. Clarke did not mention the other--the other boards which I should put up by the elmo.

THE COURT: Well, if he is not objecting to them, I don't really want to see them.

MR. SCHECK: Okay. I think that--I mean, that basically constitutes--

THE COURT: All right. The issue here is the word "Contamination."

MR. SCHECK: Yes. And the--Dr. Gerdes--

THE COURT: Would you address Mr. Clarke's specific point that Dr. Gerdes doesn't specifically say that or doesn't say that quite to that extent?

MR. SCHECK: Oh. What he is going to do and we are going to explain with specific terms, and that is the reason that we made a distinction between this first board, that is, runs versus strips, and the second board, which is just runs, is he is going to explain what is meant by an "Artifact." That is to say that on the--when you see a 1.1 allele, and we are going to show the strips with the 1.1 allele, and no 1 out of the user guide, that that could be the DX gene as an artifact. Then we are going to explain by the use of breaking them down chart by chart. In other words, we are going to do it by allele.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: This is the 1.1 allele, same presentation by month. These are the strips. This is the underlying data from this chart, (Indicating).

THE COURT: Mr. Scheck, my question was--

MR. SCHECK: Yes.

THE COURT: --Mr. Clarke's statement that Dr. Gerdes will say that it is not--it could be contamination, it could be something else.

MR. SCHECK: Right. That is exactly what this chart is going to represent. He is going to indicate with a breakdown by allele that what this represents--and he is going to give the specific break out of numbers is that on the strips on the strips these percentages represent contamination and artifacts and he will break down the numbers. On the runs he is saying that within that run there is a contaminant. He is going to break down each of these things and explain his findings and he is going to say that when you have a situation where it is ambiguous, that is to say that there is a 1.1 dot showing up in the presence of a 1 and that could be contamination, it could be an artifact in those limited situations, we are going to break it down and explain the underlying constituent of this board to the jury. So it is not argumentative. It is simply showing the percentages in terms of exactly what his testimony is going to be.

THE COURT: All right. Any other response, Mr. Clarke?

MR. CLARKE: No, your Honor. Thank you.

THE COURT: All right. The objection is overruled. All right. Let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: All right. Mr. Scheck, you may call the Defense next witness.

MR. SCHECK: Thank you. Good morning, ladies and gentlemen of the jury.

THE JURY: Good morning.

MR. SCHECK: Your Honor, the Defense calls Dr. John Gerdes.

John Gerdes, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.

DR. GERDES: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

DR. GERDES: John Gerdes, J-O-H-N G-E-R-D-E-S.

THE CLERK: Thank you.

THE COURT: Doctor, would you just lean back and pull the microphone close to you, please.

DR. GERDES: Thank you.

THE COURT: All right. Mr. Scheck.

DIRECT EXAMINATION BY MR. SCHECK

MR. SCHECK: Dr. Gerdes, could you tell the ladies and gentlemen of the jury what your present position is.

DR. GERDES: I'm the clinical director of a company called Immunological Associates of Denver, IAD for short.

MR. SCHECK: You say you are the clinical director there. Do you hold any other positions?

DR. GERDES: Yes, I actually have three titles; the clinical director, the director of DNA paternity testing and the director of research and development.

MR. SCHECK: And could you tell us what kind of a company IAD is and what it does in the Denver area?

DR. GERDES: Yes. Immunological associates of Denver is a reference laboratory for the purpose of supporting transplantation, organ transplantation. We do the HLA typing which is used to match the organs, solid organs and bone marrow of donors to recipient. We do clinical testing to ensure that those particular donors of organs are free of infectious agents and we do paternity testing for the purpose of legal conflicts.

MR. SCHECK: In your work do you use the technique known as PCR or polymerase chain reaction?

DR. GERDES: I do.

MR. SCHECK: In your work do you use the technique known as RFLP or restriction fragment length polymorphism analysis?

DR. GERDES: Yes, we do.

MR. SCHECK: Now, I would first like to discuss with you your clinical work. You indicated that IAD does transplant work in the Denver area. Incidentally, how many hospitals are there in the Denver area?

DR. GERDES: I'm not sure how many. There are four hospitals that we work specifically with that do transplants.

MR. SCHECK: All right. And so for those four hospitals your lab is the one that does the typing for purposes of the transplantations?

DR. GERDES: That's correct.

MR. SCHECK: First I would like--you mentioned bone marrow transplants. I would like you to explain for us exactly what that is and what your work entails.

DR. GERDES: Well, the major reason an individual would need a bone marrow transplant is if they had cancer, for instance, and leukemia or other kind of cancer. When a person needs a bone marrow transplant it is critical that you have an exact match of the immune system of the donated marrow to the recipient or they will reject the donation. So a registry has been formed by what is called the national marrow donor program and individuals can basically donate a blood specimen which is typed and that HLA type is then recorded. They are put on this list which is the registry and then if an individual has cancer and needs a bone marrow transplant, the registry can be searched to find an exact match.

MR. SCHECK: Let me stop you right there. When you say that--so a donor, somebody would sign up to be part of the bone marrow registry and gives a blood specimen; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: Now, you say that it is typed. Who does that mean and what technique do you use to do it?

DR. GERDES: Well, this is a national program, the national marrow donor program. They contract laboratories that do the typing and it is done by PCR-based DNA methodology.

MR. SCHECK: Are you one of those contract laboratories, that is, IAD?

DR. GERDES: Yes, IAD is one of those laboratories.

MR. SCHECK: And so you do the PCR-based typing to type the donors who are in the registry?

DR. GERDES: The recipient.

MR. SCHECK: The recipient, I'm sorry.

DR. GERDES: Donors in the registry, you are right.

MR. SCHECK: First the donors, right?

DR. GERDES: Correct.

MR. SCHECK: Okay. What happens next?

DR. GERDES: Well, an individual with cancer is--needs a--it is determined that they need a bone marrow transplant and so that particular individual with cancer would be typed again by DNA-pcr based methods.

MR. SCHECK: By your lab?

DR. GERDES: By our lab, in the Denver area, at least. Patients in the Denver area would be typed by our lab and then the registry would be searched to determine if a match could be found and at that point both individuals are retyped to double-check that the--everything was correct and they would proceed with the--the bone marrow transplant.

MR. SCHECK: And your role is to--is to supervise that these three different stages of typing are done correctly and then when you indicate that everything matches, you essentially give the go ahead?

DR. GERDES: That's correct.

MR. SCHECK: And that is--now, what kind of system are you using for this typing? Is that the HLA system?

DR. GERDES: Yes.

MR. SCHECK: Could you explain to the jury what that is?

DR. GERDES: HLA stands for human leukocyte antigen and that particular gene system is the one that is critical for immune recognition.

MR. CLARKE: Excuse me. I'm sorry. Objection, no foundation at this point.

THE COURT: Overruled.

DR. GERDES: And so that is the critical gene that needs to be matched in order to prevent the recipient from rejecting the marrow donor?

MR. SCHECK: Now, we've had a lot of testimony in this case about the DQ-Alpha reverse dot blot system?

DR. GERDES: Yes.

MR. SCHECK: That was used by I guess the three different laboratories in this case; the Los Angeles Police Department, the Department of Justice and Cellmark. Is the DQ-Alpha system in some way related to the HLA system that you use?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: Yes. That particular gene is one of the HLA genes. It is actually a cluster of genes all on chromosome 6. It involves DQ-Alpha, DQ-Beta, DR-Alpha and Beta and DP.

MR. SCHECK: So DQ-Alpha is just one of those systems on HLA?

DR. GERDES: Right, it is a subtype that is in that same cluster.

MR. SCHECK: Okay. Now, besides bone marrow transplants, you mentioned that your laboratory does solid organ transplants?

DR. GERDES: That is--we do the typing for them, yes.

MR. SCHECK: Could you explain for the jury how that works.

DR. GERDES: Umm, the situation in a solid organ transplant is that we don't have as much time, so basically an unfortunate individual may have an accident and then be declared brain dead and at that point we have four to six hours to type that particular individual and then there is again a registry of individuals waiting for solid organ transplants and then we would contact that individual and proceed with the transplant. But you have--the difference is it takes--you have a four- to six-hour window of time in which to basically do two things: One, we need to type by HLA to be sure that we match directly, and the second thing we need to do is we need to screen the donor for dangerous infectious agents. You don't want to obviously give someone an organ from an individual who is infectious, so I would have to screen for such things as HIV which causes aids, hepatitis, HTLV and a variety of infectious agents, that it is important to be sure the donor does not have an infection with those agents so it doesn't transfer.

MR. SCHECK: When you say "Solid organs," what organs are we talking about here?

DR. GERDES: We are talking about kidney, heart, lung, pancreas, liver.

MR. SCHECK: So in other words, like I guess Mickey Mantle, the sports star recently had a transplant?

DR. GERDES: That's correct.

MR. SCHECK: But in the Texas area?

DR. GERDES: That's right.

MR. SCHECK: But your--your role is if it happened in Denver, your laboratory would have done all the typing and looking at the registries?

DR. GERDES: That's correct.

MR. CLARKE: Excuse me. Objection, speculation, also leading.

THE COURT: Overruled.

MR. SCHECK: Now, you were talking about typing for these infectious diseases that the donor might have, such as HIV, HTLV, hepatitis b and C. Are you yet using PCR techniques for that aspect of the solid organ transplant typing process?

DR. GERDES: No.

MR. SCHECK: What work are you doing in that area?

DR. GERDES: Well, as my--one of my functions, as the director of research and development, we are attempting to validate PCR-based methods to look for those infectious agents. At the present time we use what are called serological methods which look for the antibody and that simply says that an individual has been previously exposed and therefore might be infectious. If those types of assays are available, they are--

MR. SCHECK: What do you mean by "Assay" when you--

DR. GERDES: An assay is a test.

MR. SCHECK: Okay.

DR. GERDES: A method.

MR. SCHECK: Uh-huh.

DR. GERDES: Those--those--those are FDA-approved and available. What we would like to do, though, is look directly for the infectious agent, that is certainly the better way to do it, and PCR is an exquisitely sensitive method and therefore has the potential of looking directly for the infectious agent. The difficulty is basically two-fold: No. 1, the time frame that we have, the five to six hours, most of the highly sensitive PCR methods take a little longer than that, usually overnight. We need to develop a system that has the ability to detect very small amounts of virus in a very short period of time.

MR. SCHECK: Let me stop you right there. You say "Very small amount of virus." Is a virus a string of DNA?

DR. GERDES: A virus is essentially DNA that is wrapped up in a protein coat.

MR. SCHECK: When you say "Small," we have had a lot of testimony here about nanograms and then a smaller unit of that, picograms. What levels are you talking about here?

DR. GERDES: The picogram or lower.

MR. SCHECK: Could you just define for the jury the difference between a picogram and a nanogram of DNA?

DR. GERDES: Well, there are a thousand picograms in a nanogram.

MR. SCHECK: Okay. So you are looking at very small amounts of DNA for these different infectious viruses in trying to develop a PCR technique that can deal with it; is that correct?

DR. GERDES: That's correct. So the first problem is being able to detect the very small amount. The second problem is being able to ensure that that can be done reliably and that is so that you don't have what are called false positives or false negatives. A false negative would mean that an individual might have a small amount of virus and for whatever reason we missed it, and that would be disastrous, because then the organ would be transplanted and someone would unfortunately come down with infection. The false positive would be a situation where because the technique is so sensitive, sometimes DNA from the laboratory or DNA from wherever, from previous amplifications, for instance, in the lab, might get into the tubes that we are using to test the donor.

THE COURT: I think we are exceeding the scope with this question.

MR. SCHECK: Is--simple question.

DR. GERDES: Okay.

MR. SCHECK: Is contamination an issue that you are trying to deal with in developing this particular PCR technique?

DR. GERDES: It is.

MR. SCHECK: Let's move on to the next thing that your lab does. You mentioned after the transplants are performed does your laboratory do something with respect to infectious disease screening?

DR. GERDES: We do.

MR. SCHECK: And what is that that you do?

DR. GERDES: Well, once a patient has been--has received a transplant, and it is either solid organ or bone marrow, they have to undergo what is called immunosuppression in order for us to prevent rejection. And so these individuals, their immune response is not quite as good as a normal individual and they therefore have an increased susceptibility to infectious agents. So there are certain infections that a normal individual or an individual who hasn't been immunosuppressed would not be susceptible to, wouldn't cause a problem in any way, but in these individuals it can kill them. And the primary example of that is something called cytomegalovirus.

MR. SCHECK: CMV?

DR. GERDES: CMV for short and this particular infection, all of us at least eighty percent of us, have seen this infection sometime early in life and it is not a problem until you receive a transplant and at that point it can become an active infection again, cause pneumonia and kill the patient, so it is a very, very difficult virus to deal with. It is also a difficult virus to grow. It takes six weeks to grow it in a laboratory, so that is not going to be helpful. PCR is the best way to look for it.

MR. SCHECK: Have you developed a PCR technique to detect the cytomegalo--CMV virus?

DR. GERDES: Yes.

MR. SCHECK: And did you receive a grant to do that?

DR. GERDES: I did.

MR. SCHECK: And when did you receive that grant?

DR. GERDES: I believe it was in 1990. Correct me if I am wrong.

MR. SCHECK: And what did that grant entail? Who did you study?

DR. GERDES: We studied 48 renal transplant, that is, kidney transplant patients, and looked at them in a way that we could validate a PCR-based method for the purpose of diagnosing early detection of the CMV virus.

MR. SCHECK: Is that PCR technique working with very small quantities of DNA?

DR. GERDES: It is.

MR. SCHECK: Is that PCR--is contamination a problem in the development of this technique?

DR. GERDES: Contamination is a problem in the development of any PCR technique.

MR. SCHECK: Now, you indicated that you were working--you were head of research and development at IAD; is that correct?

DR. GERDES: Correct.

MR. SCHECK: All right. Have you--I suppose part of that research and development was your work in developing this technique, this PCR technique to detect the CMV virus?

DR. GERDES: That's correct.

MR. SCHECK: All right. Have you recently received any other grants relating to the PCR technique and the issue of contamination that would be relevant to share with the jury?

DR. GERDES: Yes, I have.

MR. SCHECK: Could you tell was that is?

DR. GERDES: Well, just this last month I received a grant from the advanced technology program, which is a division of the National Institute of Standards and Technology, and the purpose of that grant is to develop a new diagnostic technique that is going to be more cost effective and less complex and allow for a better way to prevent contamination.

MR. SCHECK: Was this--what is the National Institute of Standards and Testing or NIST?

DR. GERDES: National Institute of Standards and Technology.

MR. SCHECK: Technology. What is it?

DR. GERDES: It is a department--and I'm not sure what major department it is under--of the U.S. government and they are charged with the purpose of developing technology that will be important to the U.S. in the future in terms of keeping the U.S. at the forefront of technologies and maintaining the U.S. as a competitive country.

MR. SCHECK: Was this a competitive grant?

DR. GERDES: It was.

MR. SCHECK: How many companies applied for this, do you know?

DR. GERDES: This was a focus program specifically asking for grants on DNA. I believe there were 27 applicants.

MR. SCHECK: What was the amount of the grant that you just received?

DR. GERDES: 1.6 million dollars.

MR. SCHECK: You also indicated that your laboratory does paternity testing?

DR. GERDES: Yes.

MR. SCHECK: All right. And could you tell us what technique you use and what is involved in that?

DR. GERDES: Yes. In paternity testing we use the other type of DNA testing which is called RFLP which I believe you've all heard of, restriction fragment length polymorphism, and that technology then is used for our purpose of determining whether a child--whether an individual is the father of a child.

MR. SCHECK: Now, in the paternity testing area, do you have to deal with--do you have guidelines with respect to handling of specimens and chain of custody issues such as that?

DR. GERDES: Yes, we do.

MR. SCHECK: Finally, does your lab do any work in what is known as virology?

DR. GERDES: Yes, we do.

MR. SCHECK: Does any of that involve PCR?

DR. GERDES: The CMV is a virus only so that involves PCR. We also look for another organism called chylmadia. It is actually not a virus but it is a microorganism that causes sexually transmitted diseases. And our function as a virology lab is to look at infections, not restricted only to infections in transplant population, but in the O.R. population or other populations as well, wherever they would need it and, that is one of the particular organisms where we use PCR.

MR. SCHECK: And is there a particular kit that is used with that PCR application?

DR. GERDES: Yes.

MR. SCHECK: And who approved that kit?

DR. GERDES: Well, it is a FDA-approved kit.

MR. SCHECK: What is the FDA?

DR. GERDES: The food and drug administration, and for clinical testing, if you use a kit, it has to be approved by that organization, and basically what that--

MR. SCHECK: Excuse me for one second. A kit--is the PCR/dq-alpha technique being used here, is that a kit as well?

DR. GERDES: It is.

MR. SCHECK: Now, does the kit that you use for chlymadia, does that have a contamination control?

DR. GERDES: It does.

MR. SCHECK: Called UNG?

DR. GERDES: Yes.

MR. SCHECK: And does the DQ-Alpha system have the UNG?

DR. GERDES: No.

MR. SCHECK: Now, doctor, I would like to talk a little bit about your educational background. Where did you get your undergraduate degree?

DR. GERDES: I received a bachelor of science in microbiology from the University of Wyoming, Laramie, Wyoming.

MR. SCHECK: Where did you get your postdoctorate degree?

DR. GERDES: I received my Ph.D. degree from UCLA in Los Angeles in the field of microbial genetics and pathogenesis and microbial genetics is what is now called microbiology.

MR. SCHECK: How many years did it take you to get your Ph.D., sir?

DR. GERDES: Four years.

MR. SCHECK: And in microbiology, your background, what is the importance of something known as aseptic technique and could you explain what that is to the jury?

DR. GERDES: Well, aseptic technique or sterile technique is the foundation of microbiology really. It is a--basically teaching you the common sense of how to handle an item, a specimen, in such a way that you can look at what is only in the specimen and not worry about other microorganisms that are floating around the air falling in there and confusing what you are looking at.

MR. SCHECK: Are you talking about the issue here of cross-contamination and contamination?

DR. GERDES: Yes. In microbiology you have to handle specimens--for instance, if you are--if a doctor takes a specimen from you, it is very important that that specimen is transported to the lab, handled by the laboratory personnel, analyzed by the laboratory personnel and that a result is obtained from those personnel in such a way that I can guarantee, no. 1, the specimen really did come from you. And no. 2, that there wasn't some sort of mix-up of all the other specimens that came into the lab that day, which is pretty much saying the same thing. And no. 3, that there isn't a problem with the fact that we are dealing with those microorganisms day after day in the labs, some of those from the laboratory getting into your specimen and causing a false positive result.

MR. SCHECK: Your thesis involved what microorganism?

DR. GERDES: I looked at fibrio cholera which is the organism that causes cholera, which is an acute diarrheal disease which is a major problem worldwide.

MR. SCHECK: What was your postdoctoral work in? Where did you do that?

DR. GERDES: My postdoctoral work was at again UCLA and this time in the field of virology and I investigated the genetics and the molecular biology of herpes simplex virus and specifically asking questions about what it is about that virus that allows it to, once it is into the body, go into what is called a latent stage, which means that it--the infection is shut down but the virus persists.

MR. SCHECK: When you say "Herpes simplex," that is what is commonly known as herpes?

DR. GERDES: Yes. It causes cold sores and it also causes a genital infection.

MR. SCHECK: And with whom did you study at UCLA in your post-doctoral work?

DR. GERDES: Jack Stephens was the individual's name.

MR. SCHECK: When you say--did you get any kind of a grant at that time?

DR. GERDES: Yes. The support for my post-doc was a competitive postdoctoral fellowship from the NIH.

MR. SCHECK: The NIH is?

DR. GERDES: National institute of health.

MR. SCHECK: So you have to compete to get that grant in order to support your postgraduate work?

DR. GERDES: That's correct.

MR. SCHECK: After that did you at some point--when did you move to Denver?

DR. GERDES: Umm, I'm not very good with dates. I believe it must have been around 1978 or in that area.

MR. SCHECK: Through 1978 around--up there, 1982, where did you work?

DR. GERDES: I was an assistant professor at the University of Colorado health sciences center which is a medical school in Denver, Colorado.

MR. SCHECK: And what were you working on there?

DR. GERDES: I was again--I had two laboratories. One of the laboratories continued my work with herpes simplex virus and I was also--the second laboratory involved the investigation of the potential of viruses being the cause of multiple sclerosis.

MR. SCHECK: And when did you go to immunological associates of Denver?

DR. GERDES: That was in 1988.

MR. SCHECK: And at that time you began to set up the various programs in that laboratory?

DR. GERDES: That's correct.

MR. SCHECK: Now, I would like to turn for a second back to your work at IAD and discuss with you some laboratory practices and accrediting and how it works in this field. Are there accrediting agencies that set standards for your DNA laboratory?

DR. GERDES: Yes.

MR. SCHECK: All right. What--could we go through them. Is one of them what is known as CLIA?

DR. GERDES: Yes.

MR. SCHECK: Could you explain for the jury what that is?

DR. GERDES: Well, CLIA is actually the law. Clinical laboratory improvement act is the--that is what the abbreviation stands for. That is a law that was passed to regulate and improve clinical testing in this country. It is administered by the health care financing administration or HCVA, and we are inspected by that organization to ensure that we are complying with the law.

MR. SCHECK: And you are accredited, by the way?

DR. GERDES: And we are--HCVA would be the accrediting agency.

MR. SCHECK: Now, in the course of that is your lab inspected?

DR. GERDES: Yes.

MR. SCHECK: Do they look at your protocol?

DR. GERDES: They do.

MR. SCHECK: Do they look at your quality control and quality assurance documentation?

DR. GERDES: They do.

MR. SCHECK: Do they do spot checks of your case work?

DR. GERDES: No.

MR. SCHECK: Do they look at your proficiency tests?

DR. GERDES: They do.

MR. SCHECK: Do they look to see, in the course of their examination of your quality control and quality assurance, whether there is--your laboratory adequately detects and controls contamination in your PCR work?

DR. GERDES: They do.

MR. SCHECK: Do they inspect your rules for specimen handling?

DR. GERDES: Yes.

MR. SCHECK: Is there another organization that accredits you called the American Society for Histocompatibility and Immunogenetics?

DR. GERDES: Yes.

MR. SCHECK: And what is that--that is known as ASHI?

DR. GERDES: Correct.

MR. SCHECK: What is their field? What do they look at?

DR. GERDES: This is the accrediting agency for the purpose of HLA typing.

MR. SCHECK: That is the bone marrow and solid organ transplants?

DR. GERDES: Bone marrow and solid organ transplant.

THE COURT: Hold on. Doctor, if you would, would you let the attorney finish asking you the question before you start to answer. The problem is the court reporter can only take down one person at a time. This is touch stuff for a court reporter.

DR. GERDES: I understand, I'm sorry.

THE COURT: Proceed.

MR. SCHECK: Does ASHI inspect your lab?

DR. GERDES: No.

MR. SCHECK: Do they look through your quality control and quality assurance records?

DR. GERDES: No.

MR. SCHECK: Do they do spot checks of your case work?

DR. GERDES: Yes.

MR. SCHECK: Do they examine proficiency tests?

DR. GERDES: Yes.

MR. SCHECK: In the course of the examination of the quality control and quality assurance documents and the case work, do they make an assessment as to whether or not your laboratory adequately detects and controls contamination?

DR. GERDES: Yes.

MR. SCHECK: Do they examine your specimen handling rules and methods?

DR. GERDES: They do.

MR. SCHECK: What about the national marrow donor program? What do they do?

DR. GERDES: That is the organization that is the registry for bone marrow.

MR. SCHECK: And they rely on ASHI inspections?

DR. GERDES: They rely on ASHI for the accreditation process. Their additional quality control includes blind specimens that are incorporated in every batch of typings we do.

MR. SCHECK: Well, we will get back to this later, but is that what has been discussed here as an external blind proficiency test?

DR. GERDES: It is.

MR. SCHECK: All right. We will discuss that later. Now, what about the American Association of Blood Banks? Is that an accrediting agency that looks at your laboratory?

DR. GERDES: It is.

MR. SCHECK: And in what area do they look at?

DR. GERDES: That is in the area of paternity testing by RFLP.

MR. SCHECK: Do they inspect your lab?

DR. GERDES: They do.

MR. SCHECK: Do they look at your quality control and quality assurance documentation?

DR. GERDES: Yes.

MR. SCHECK: Do they do spot checks of your case work?

DR. GERDES: Yes.

MR. SCHECK: Do they review AABB and what is known as CAP or College of American Pathology proficiency testing?

DR. GERDES: Yes.

MR. SCHECK: Do they examine chain of custody rules and specimen handling rules with respect to paternity testing?

DR. GERDES: They do.

THE COURT: Mr. Scheck, would you slow down just a little.

MR. SCHECK: My apologies, your Honor.

MR. SCHECK: In addition to these inspections, what kind of proficiency testing does your lab go through? Just describe the programs. You mentioned already, and we will get back to it later, the national marrow donor program external blinds?

DR. GERDES: That's correct.

MR. SCHECK: All right. What other proficiency testing do you go through?

DR. GERDES: Umm, in the--there is proficiency for virtually every area that we do through the College of American Pathologists or CAP. That is a main--a major organization. That is one of their major functions is providing that kind of proficiency testing. In addition, we have proficiency testing through a number of HLA organizations, specifically for DNA HLA. One of them is called a DNA--the UCLA DNA exchange and a second one is the southeast organ procurement foundation or c-op proficiency testing.

MR. SCHECK: Now, doctor, are you a member of any professional associations?

DR. GERDES: I am.

MR. SCHECK: All right. Could you please tell us what they are.

DR. GERDES: I'm a member of the American Society for Microbiology. I'm a member of the Clinical Ligand Assay Society.

MR. SCHECK: Before we--the American Society of Microbiology, what is that exactly?

DR. GERDES: That is the major scientific organization for the purpose of microbiology and molecular microbiology or molecular pathology.

MR. SCHECK: They hold meetings and conferences that you attend?

DR. GERDES: Yes.

MR. SCHECK: And in those meetings and conferences is a discussion of DNA laboratory techniques?

DR. GERDES: Yes.

MR. SCHECK: All right. Is another professional--go on to your next professional organization.

DR. GERDES: Clinical Ligand Assay Society is one I believe I mentioned.

MR. SCHECK: And what do they do?

DR. GERDES: This is an organization, a scientific organization which is a collection of individuals who are involved in clinical chemistry and clinical testing.

MR. SCHECK: Does that organization hold meetings that you attend?

DR. GERDES: Yes.

MR. SCHECK: And at those meetings do various DNA laboratory directors discuss techniques and laboratory methods?

DR. GERDES: They do.

MR. SCHECK: What other organizations?

DR. GERDES: The American Association of Blood Banks.

MR. SCHECK: All right. Do you attend their meetings?

DR. GERDES: Yes.

MR. SCHECK: And what--and they--at those meetings do DNA laboratory directors there discuss various techniques?

DR. GERDES: Yes.

MR. SCHECK: That are used in their laboratories?

DR. GERDES: Yes.

MR. SCHECK: And standards and rules, things of that nature?

DR. GERDES: Yes.

MR. SCHECK: What about ASHI, American Society for Histocompatibility and Immunogenetics?

DR. GERDES: Yes, yes, I belong to that.

MR. SCHECK: And what is that organization again?

DR. GERDES: That is the organization that deals with the immunology of looking at the HLA gene.

MR. SCHECK: The transplant--

DR. GERDES: Immunology in general and the HLA specifically in the sense of transplantation.

MR. SCHECK: All right. So these are the transplant people, so to speak?

DR. GERDES: Yes.

MR. SCHECK: And when you get together at those meetings are there discussions of DNA lab directors there as to techniques and standards in the laboratory?

DR. GERDES: Yes.

MR. SCHECK: And what is the Pan American Society for Clinical Virology? That is another organization you are a member of?

DR. GERDES: It is.

MR. SCHECK: What do they do?

DR. GERDES: That is the scientific organization which is a collection of individuals who do virology, looking for viruses in a clinical setting.

MR. SCHECK: Again at those meetings do DNA lab directors who do the PCR-based tests for looking for these infectious diseases that you told us about, such as hepatitis, HIV, et cetera, do they discuss DNA laboratory techniques, standards, specimen handling method?

DR. GERDES: Yes, they do.

MR. SCHECK: Okay. Now, I would like to turn your attention now to forensic DNA typing. Have you visited and inspected any forensic DNA laboratories?

DR. GERDES: Yes.

MR. SCHECK: Which ones have you inspected and visited?

DR. GERDES: Well, there are sixteen of them. Hopefully I can remember the list.

MR. SCHECK: I'm talking first now about visits, labs that you visit.

DR. GERDES: Oh, visits. Sorry. There are six labs that I visited; Cellmark--

MR. SCHECK: That is Cellmark Diagnostics, the laboratory that Cotton is from?

DR. GERDES: That's correct. I visited the Los Angeles Police Department DNA lab, I've visited the Department of Justice in Berkeley.

MR. SCHECK: That is the lab that Gary Sims and Renee Montgomery are from?

DR. GERDES: Correct. I visited the New Mexico crime lab, I visited the Denver Police Department, and I visited the Bureau of Criminal Apprehension in Minneapolis.

MR. SCHECK: Have you visited the laboratory known as Genetic Design?

DR. GERDES: Yes, I have also visited that in North Carolina.

MR. SCHECK: Now, have you reviewed protocols and case work from additional DNA laboratories?

DR. GERDES: I have.

MR. SCHECK: And how many DNA laboratories overall have you reviewed protocol and examined case work?

DR. GERDES: Sixteen.

MR. SCHECK: All right. And in addition to Cellmark, the Los Angeles Police Department, the Department of Justice, the New Mexico Police Department, the Denver Police Department, Genetic Design and the Bureau of Criminal Apprehension in Minneapolis, what other labs have you reviewed their protocols in case work?

DR. GERDES: You will have to help me on the list. The FBI, San Diego Police Department, Forensic Science Associates, and if I could look at my CV it might be--

MR. SCHECK: Well, if you don't mind have you visited gene screen?

DR. GERDES: Yes. I haven't visited; I have reviewed their protocol. They are from Texas, that's correct.

MR. SCHECK: What about the Orange County crime lab?

DR. GERDES: Yes.

MR. SCHECK: What is--what is the CBR laboratory?

DR. GERDES: That is a laboratory in Maryland, David Bing's laboratory.

MR. SCHECK: Boston?

DR. GERDES: Yes.

MR. SCHECK: And what is AGTC, analytical genetic--

DR. GERDES: Analytical Genetic Testing Center which is in Denver Colorado.

MR. SCHECK: So you reviewed protocol and case work from that lab?

DR. GERDES: Yes.

MR. SCHECK: Are you--have you become familiar with the literature on the application of DNA techniques to forensic?

DR. GERDES: Yes.

MR. SCHECK: Over the last five years have you testified as an expert witness in a number of states on the application of DNA techniques to forensics?

DR. GERDES: I have.

MR. SCHECK: And over five years about how many times have you testified?

DR. GERDES: 23 times.

MR. SCHECK: Now, how did you get involved in testifying in cases involving the forensic application of DNA techniques?

DR. GERDES: Well, back in 1990 there was a case in the Denver area and as a part of--there was DNA involved in the evidence of the case and the--one of the attorneys involved in the case, I think he essentially looked us up in the yellow pages and it said that we did DNA testing and called me and asked me to look at the evidence and I--I agreed to do that and looked at that particular case. I expressed some concerns about specifically some problems that I felt there might be with PCR and then from there on individuals have called me.

MR. SCHECK: Now, do you, over the course of time, do you charge money when you review case work and come and testify as a witness?

DR. GERDES: I do.

MR. SCHECK: And have you charged a fee in this case?

DR. GERDES: I have.

MR. SCHECK: And what is that fee?

DR. GERDES: It is a hundred dollars an hour.

MR. SCHECK: And who gets the money, this $100.00 an hour?

DR. GERDES: The laboratory does.

MR. SCHECK: That is IAD?

DR. GERDES: Yes.

MR. SCHECK: And is this a money-making enterprise for IAD, you going off and testifying as an expert witness in forensic cases over the last five years?

DR. GERDES: No. It is a minor proportion of the gross income of our company and it basically covers the expenses of my being gone for someone to replace me.

MR. SCHECK: Now, in terms of preparing for your testimony in this case, did you review the results of the DNA work of the Los Angeles Police Department?

DR. GERDES: I did.

MR. SCHECK: The Department of Justice?

DR. GERDES: Yes.

MR. SCHECK: And Cellmark?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed their protocols?

DR. GERDES: I have.

MR. SCHECK: Have you reviewed the collection methods, the sample handling methods and the laboratory procedures of the Los Angeles Police Department?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed what are known as validation studies put together by the Los Angeles Police Department laboratory?

DR. GERDES: I have.

MR. SCHECK: Have you looked at some of their case work strips?

DR. GERDES: Yes.

MR. SCHECK: And their proficiency tests?

DR. GERDES: Yes.

MR. SCHECK: I think you have already mentioned you visited the Los Angeles Police Department?

DR. GERDES: That's correct.

MR. SCHECK: On how many occasions?

DR. GERDES: Two occasions.

MR. SCHECK: And visited Cellmark in connection with this case?

DR. GERDES: I did.

MR. SCHECK: And when you said you visited the Department of Justice, that was in connection with another case?

DR. GERDES: I visited that laboratory twice. Once in conjunction with another case and once in conjunction with this case.

MR. SCHECK: Now, have you--are you familiar with the testimony of Dennis Fung, Andrea Mazzola, Collin Yamauchi, Gary Sims, Renee Montgomery, Robin Cotton in this case?

DR. GERDES: Yes.

MR. SCHECK: Have you--in what way have you been familiar with it?

DR. GERDES: Well, I have seen the excerpts here and there on TV, but primarily through transcripts which were provided, and I have reviewed most of those transcripts, although it was impossible to review all of it, I didn't have time, but most of it I have reviewed.

MR. SCHECK: Now, could you please define for the jury the term "Contamination" in a forensic setting, in terms of DNA work?

DR. GERDES: In terms of DNA work it is quite simply human DNA that is found where it shouldn't be.

MR. SCHECK: Now, in terms of DNA laboratories, would it be useful to break down the kind of contamination that one encounters?

DR. GERDES: Yes.

MR. SCHECK: And could you please tell us--could you break those down to us in certain categories?

DR. GERDES: Certainly. I think a way to look at this is to start all the way back at the beginning at the crime scene and the first type of risk of contamination is going to be called what is called cross-contamination, and as I mentioned, this is human DNA finding its way into a sample where it shouldn't be there, and the--that is as a result of cross-transferring from one space to another physically, and that can happen by mishandling. And the--that is because if you have a sample here with a large amount of DNA and another sample with small amount of DNA, this technique is so exquisitely sensitive that you can transfer without even knowing it frequently a small amount of DNA from item 1 where there was a large amount to item 2.

MR. SCHECK: When you say "Exquisitely sensitive," we have heard that term before. What do you mean by that? It is a scientific term?

DR. GERDES: Yes.

MR. SCHECK: But could you try to define that a little in plainer English, if we could?

DR. GERDES: Yeah. It simply means that you can find a very, very, very small amount. This technique can theoretically find a single copy of what you are looking for.

MR. SCHECK: Okay. Now, we discussed cross-contamination. Is there something about cross-contamination that is a particular problem in terms of the different kinds contamination you get?

DR. GERDES: Yes. This--this particular kind of contamination is the one that is the most subversive and that--by that I mean that once you've done that, once you have accidentally transferred from one item to the next, if you were to do the DNA analysis of both items, the DNA analysis doesn't distinguish where that human DNA came from. It is simply going to type what human DNA is there. So that means that if you were to type those two items and you had accidentally done that, those items were--would probably type as the same item, especially, you know, the smaller amount would be most likely overwhelmed by the transferred DNA. So they would type as the same DNA, meaning coming from the same individual, and it wouldn't matter if at that point from that point on it wouldn't matter if this sample that was falsely incorporated--falsely incorporated, if that sample was typed by five, ten, other laboratories or by five or ten different gene systems, it is always going to come up as a match. And the problem with that is there really is no control, unfortunately. There is no way of incorporating into the system a control that says that happened.

THE COURT: Next question.

MR. SCHECK: What other kind of categories of contamination are there?

DR. GERDES: Well, the second is usually once the DNA or the specimen is transferred to a laboratory, now you can have the same kind of transfer, by the way, cross-transfer can happen anytime that item is manipulated, either in the crime scene, in the laboratory itself, or anytime they are handled, those specimens, all the way through the process that can happen. A second type of contamination, though, that occurs, is the fact that when you are dealing with DNA the samples are fairly dirty samples. In the process of analyzing them you have to add these liquid solutions that contain all of the building blocks for the DNA and the enzyme that is responsible for allowing us to copy it, and the components of that reaction that allows the PCR process to occur.

MR. SCHECK: These are the reagents that you pour into things?

DR. GERDES: Correct, they are called reagents.

MR. SCHECK: Can they get contaminated?

DR. GERDES: Yes, they can.

MR. SCHECK: And what is known as amplicon or PCR carry-over contamination?

DR. GERDES: That is a slightly different concept, and the PCR process I'm sure you are aware of that now, basically allows us to take a small number and copy it, sort of like a molecular Xeroxing up to a very high number. Now, if you do that for the same gene over and over, day after day, with multiple samples, what happens is you have a build-up or can have a build-up of the copies, and when you have a build-up of those copies it is very easy to accidentally get one of those into your reagent or into your reactions, and that is called amplification product carry-over.

MR. SCHECK: Okay. Dr. Gerdes, based on your review of the data in this case, have you formed an opinion as to a reasonable degree of scientific certainty about contamination at the LAPD DNA laboratory?

MR. CLARKE: Objection, no foundation.

MR. SCHECK: Your Honor, my method here is that I'm going to elicit the opinions of the doctor and then give the basis of his expert opinion.

THE COURT: Overruled, overruled.

MR. SCHECK: Have you an opinion, within a degree of scientific certainly, about contamination at the LAPD laboratory?

DR. GERDES: Yes.

MR. SCHECK: What is it?

DR. GERDES: I found that the LAPD laboratory has substantial contamination problem that is persistent and substantial.

MR. SCHECK: Is it chronic? What does that term mean?

DR. GERDES: Chronic--it is chronic and it is chronic in the sense that it doesn't go away. I can find it month after month and it persists.

MR. SCHECK: Is--as a DNA lab director do you have an opinion about the risk of error due to contamination at the LAPD?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: As a molecular biologist and DNA laboratory director, do you have an opinion about the collection, specimen handling and sampling method used by the personnel at the Los Angeles Police Department in this case?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: Yes.

MR. SCHECK: And what is it?

DR. GERDES: I found that the specimen handling procedures were done in such a manner that it had a tremendous--there was a tremendous risk of the potential of cross-contamination.

MR. SCHECK: Given your views on contamination at LAPD and the sample handling methods that the personnel used, do you have an opinion about the reliability of the results obtained not only by the Los Angeles Police Department, but by the Department of Justice and Cellmark on the samples that have been called the Bundy blood drops, that is, LAPD items 47, 48, 49, 50 and 52?

MR. CLARKE: Objection, no foundation, also irrelevant.

THE COURT: Sustained. Sustained.

MR. SCHECK: Your Honor, I--I wanted to elicit his opinion and then give the basis.

THE COURT: Sustained. Sustained.

MR. SCHECK: All right.

MR. SCHECK: Dr. Gerdes, have you examined and formed an opinion about the handling of the samples from the Bronco that were collected on June 14th and August 26th in this case?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Let me go back and try it this way: Dr. Gerdes, have you examined the data and the testimony about how the Bundy blood drops, items 47, 48, 49, 50 and 52, were handled in this case?

DR. GERDES: Yes.

MR. SCHECK: Have you examined--based on your examination of how those items were handled and your review of the conditions at the L.A. Police Department laboratory, do you have an opinion about the reliability of the results obtained not only by the Los Angeles Police Department, but by the Department of Justice and Cellmark on those items?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Have you reviewed, Dr. Gerdes, the D1S80 results obtained on the Rockingham glove by the Department of Justice?

DR. GERDES: Yes.

MR. SCHECK: All right. And have you reviewed the way that that Rockingham glove was handled and sampled by Mr. Yamauchi on the morning of June 14th, 1994?

DR. GERDES: Yes.

MR. SCHECK: All right. Before we move on to a discussion of those results, I would like to ask you a series of questions, sir, with the use of a chart, concerning the use of PCR and RFLP technique in the forensic setting and in the medical setting. Your Honor, if I may, I would like to move the chart out here.

THE COURT: Yes.

(Brief pause.)

MR. SCHECK: Your Honor, I would like to mark this chart as Defense next in order, which I believe is what, 1284?

THE COURT: 1285.

(Deft's 1285 for id = chart)

MR. SCHECK: Dr. Gerdes, if you could step down?

DR. GERDES: (Witness complies.)

MR. SCHECK: Now, can DNA technology, that is the RFLP and PCR technique, be reliable and validated for one application but less reliable when transferred to another application?

MR. CLARKE: Objection, foundation. Request to take the witness on voir dire.

THE COURT: Overruled.

DR. GERDES: Yes. That is called technological transfer and any specific or way of doing things, when it is used for a different purpose, for various different purposes, each of those will have their own unique problems and so you have to deal with those problems during that transfer.

MR. SCHECK: Where did the RFLP and PCR technique start? Where were they first developed? In the research setting, the medical setting?

DR. GERDES: They were--the PCR methodology was developed in a research setting, specifically in the field of molecular biology.

MR. SCHECK: What about RFLP?

DR. GERDES: RFLP was developed in a similar setting.

MR. SCHECK: And what was the first application of these techniques? Was it medical or forensics?

DR. GERDES: Well, it began in the research community and then the medical community was the next area where it was applied and then finally forensics.

MR. SCHECK: All right. What I would like to do is go through some of the differences between medical and research applications of these techniques and forensics. First, on the issue of samples, what are the differences as you see them between samples in the medical setting and samples in the forensic setting?

MR. CLARKE: Excuse me. Again, objection, foundation, expertise.

THE COURT: Sustained.

MR. SCHECK: Well, Dr. Gerdes, do you have familiarity with the kind of samples that are handled in the clinical setting?

DR. GERDES: I do.

MR. SCHECK: And do you have familiarity with the kind of samples that are handled in the forensic case work?

DR. GERDES: Yes.

MR. SCHECK: What kind of samples are handled in the medical or research community? Could you describe what they are?

DR. GERDES: These are aseptically collected sterile samples that are collected from a patient by a trained microbiologist or medical personnel, transported to the laboratory in a sterile container and then handled in a sterile environment, a hood that is a sterile hood.

MR. SCHECK: And in forensics how are, generally speaking, samples what kind of samples are you dealing with?

MR. CLARKE: Objection, no foundation. Also, request to voir dire the witness.

THE COURT: Objection sustained on foundation.

MR. SCHECK: Dr. Gerdes, have you reviewed--how many forensic cases have you reviewed?

DR. GERDES: 23.

MR. SCHECK: And have you reviewed the kind of samples that were collected in those cases and where they came from?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. GERDES: Yes, I have.

MR. SCHECK: And where did those samples come from? What kind of cases did they involve?

DR. GERDES: They involved various crime scenes. All of them involved, you know, blood, hair, semen found in--in an unsterile condition on carpets, in dirt.

MR. CLARKE: I'm sorry, excuse me. Objection, no foundation. Objection, no foundation, move to strike the answer.

THE COURT: I'm going to sustain the objection. No foundation at this point. It is based on hearsay at this point.

MR. CLARKE: Move to strike the answer, your Honor.

THE COURT: Not at this time.

MR. SCHECK: Well, have you reviewed literature with respect to forensic samples and their properties and how they are collected?

DR. GERDES: Yes.

MR. SCHECK: Literature from forensic laboratories?

DR. GERDES: Yes.

MR. SCHECK: And have you seen photographs and examined actual samples from forensic laboratories in the various cases that you have reviewed?

DR. GERDES: I have seen photographs. I haven't handled the samples.

MR. SCHECK: All right. In the cases you have reviewed, have you dealt with bloodstains?

DR. GERDES: Yes.

MR. SCHECK: From--found on various different substrates?

DR. GERDES: Yes.

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Overruled.

MR. SCHECK: From concrete and dirt?

DR. GERDES: Yes.

MR. SCHECK: Have you dealt with hairs found on clothing and on various substrates?

DR. GERDES: Yes.

MR. SCHECK: Have you dealt with what are known as vaginal swabs?

DR. GERDES: Yes.

MR. SCHECK: Sperm and epithelial cells?

DR. GERDES: Yes.

MR. SCHECK: Saliva?

DR. GERDES: Yes.

MR. SCHECK: Have you dealt with mixtures of blood--bloodstains?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed cases involving mixtures of epithelial and sperm cells, for example?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of--these are all in forensic cases?

DR. GERDES: They are.

MR. SCHECK: Now, in terms of the samples that you have reviewed in forensic cases, what are the differences between those kind of samples and the samples that you have encountered in the medical and research setting?

MR. CLARKE: Objection, no foundation, expertise.

THE COURT: Overruled.

DR. GERDES: I believe you have just described the differences. Those samples are found in various substrates, none of which are sterile, obviously sterile blood specimens, and in various stages of degradation and different ages and they are obviously not clean samples. They are samples that are definitely dirty and definitely not collected in an ideal manner.

MR. SCHECK: All right. Now, in terms of just the application of the technology and the challenge posed by the samples, which kind of samples, just by their nature, umm, create a higher risk of encountering contamination and erroneous DNA typing; the samples in the medical and research setting or the samples that you've viewed in forensic case work?

DR. GERDES: Well, obviously if you have a sterile sample that is aeseptically collected, versus a sample where there is absolutely no way of controlling how it is collected or where it is found, the chances of foreign DNA from someone else are going to be much greater in this situation than in this situation, (Indicating).

MR. SCHECK: All right. So would it be fair to say that in terms of risk of contamination error, at least just in terms of the sample, forensics is a greater challenge?

DR. GERDES: It is.

MR. SCHECK: Would it be fair for you then to--if there were a box here, would you check that off with respect to dirty samples?

DR. GERDES: Stuck on permanent.

MR. SCHECK: It is stuck on permanently?

DR. GERDES: Whoops. That one isn't.

MR. SCHECK: Sorry to reveal the next check mark here. In terms of sample size, what are the differences between the samples that you encounter in the medical--in the medical area, the clinical area, and the samples that you've viewed in forensic case work?

DR. GERDES: In the medical area we can pretty much request the sample volume that we need, so sample size is not a problem. You ask for the ideal amount of material you need to do the testing.

MR. SCHECK: Now, in terms of amounts--incidentally, in other words, are some of these DNA tests best performed when you can actually quantitate the amount of DNA?

DR. GERDES: All of them are, yes.

MR. SCHECK: Is that particularly important in PCR testing?

DR. GERDES: Yes.

MR. SCHECK: What are the recommended amounts for the DQ-Alpha PCR technique in terms of the minimum amount of DNA that you would like to have in a sample?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Do you know--are you familiar with the DQ-Alpha reverse dot blot method?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the literature concerning that technique?

DR. GERDES: Yes.

MR. SCHECK: The user guide?

DR. GERDES: Yes.

MR. SCHECK: Is there anything in that literature, the user guide, that indicates what the preferred amount is, for example, in terms of minimum size for doing a DQ-Alpha reverse dot blot analysis?

DR. GERDES: Yes.

MR. SCHECK: And what would that be?

DR. GERDES: The minimum amount that is recommended is two nanograms.

MR. SCHECK: And what about the D1S80 technique? Are you familiar with that?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the literature surrounding that technique?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the user guide and the protocol for that technique?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of--so you were getting back to the issue of sample size. You said that in the medical setting you can control the amounts of DNA that is being tested; is that correct?

DR. GERDES: That's correct. You can ask for an ample size of the original sample. You can purify the DNA and you can quantitate precisely the amount and therefore add the ideal concentration of DNA that is needed for the particular test.

MR. SCHECK: Now, in terms of sample size, in your review of the evidence in this case and in other forensic cases, does the same situation obtain in terms of the availability of sample?

MR. CLARKE: Objection, vague.

THE COURT: Sustained.

MR. SCHECK: What kind of amounts of samples have you encountered in this case and in other cases as compared to the amounts in the medical and research setting?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: In this case and in other cases frequently you have very, very small amounts of DNA and that is basically because you take what you get. You have no option. You have to work with whatever is there. And so frequently that is very, very small amounts, less than what is ideal and less than what is recommended for these kind of tests.

MR. SCHECK: In terms of the risk of contamination and erroneous typing, are there greater risks associated with the kind of small samples that one encounters in forensic case work than in the medical generous sample size in the clinical context?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained. Doctor, let me ask you to take the longer pointer and step back one step so that the court reporter can hear what you are saying.

DR. GERDES: Sure.

MR. SCHECK: Does sample size have anything to do with the problem of contamination and erroneous typing?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. GERDES: Yes. Sample size, if it is too small, there is an increased risk of contamination, there is an increased risk that you will miss some of the DNA, that is, something is there and you don't find it.

MR. SCHECK: All right. And in your judgment did the minuscule size--what does the term "Minuscule" mean?

DR. GERDES: Small, very small.

MR. SCHECK: Okay. Is that the kind of sample you are talking about that is encountered in forensic case work?

DR. GERDES: Yes.

MR. SCHECK: All right. Are--now, does the minuscule sample size encountered in forensic case work, what implication does that have for you as far as you are concerned in terms of the risk of contamination and error as compared to the clinical setting.

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: It is a tremendously increased risk of contamination and error.

MR. SCHECK: All right. Now, in the clinical context, in terms of mixtures, what kind of sample do you get there as opposed to forensic case work?

DR. GERDES: Well, in the clinical setting for the vast majority of the types of tests we do we are concerned with a specimen or a sample that comes from one individual and so it is very rare that we will work with something that is a mixture.

MR. SCHECK: And what about the sources of those samples?

DR. GERDES: The sources are well-known to be a single individual.

MR. SCHECK: In the forensic context and in this case what kind of samples are often encountered?

DR. GERDES: Most of the times in a forensic case obviously you don't--you are finding something at a crime scene, so you have no way of knowing whether that came from only one individual, one contributor, two contributors, three contributors. You have no way of really knowing how many people that might have actually come from and that--that is--that means that you don't--you don't know if you have a mixture. And then when you do the analysis, frequently it is found to be a mixture.

MR. SCHECK: And in terms of the risk of contamination and error, in which application of DNA techniques is the risk of contamination and error greater just because in the nature of that sample?

DR. GERDES: It is much greater in the forensic setting. It is very, very difficult. It is a difficult task to deal with these mixtures because the genetic systems are more precise and can be interpreted more--more cleanly if you know you are only working with one person.

MR. SCHECK: Would it be fair to check off this box now?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of handling of samples within a laboratory, could you compare for us which of the applications has more or less handling of samples within the laboratory?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. Are you familiar with the specimen handling techniques in clinical laboratories?

DR. GERDES: Yes.

MR. SCHECK: Have you examined the specimen handling techniques used by the Los Angeles Police Department in this case?

DR. GERDES: I have.

MR. SCHECK: Are you familiar with the techniques used by Cellmark and the Department of Justice?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the specimen handling techniques used by the other laboratories that you visited?

DR. GERDES: Yes.

MR. SCHECK: These were all forensic laboratories?

DR. GERDES: They are.

MR. SCHECK: Dealing with forensic samples?

DR. GERDES: Yes.

MR. SCHECK: All right. Which laboratory does more or less handling of the samples in the course of doing DNA testing?

MR. CLARKE: Excuse me. Objection. No foundation.

THE COURT: Overruled.

DR. GERDES: There is much more handling in the forensic setting. Those specimens are--because they are found at a crime scene, and in a non-sterile situation, they have to be handled, itemized, packaged, transported to the lab and then sorted out so that they--they can be analyzed--reserving perhaps some for future analysis by both the Defense and the Prosecution in the case and then they have to be handled from a non-sterile state from the very beginning, because they are found that way. In a clinical lab we can work with one specimen in a sterile drawn tube that was transported to the lab, immediately goes right into the testing process and it is not handled for anything other than that.

MR. SCHECK: Now, in terms of the risk of contamination and error, where is it greater, in the situation where there is less handling of the sample or in the situation where--the forensic situation where the samples have to be taken from the scene, dried, unpackaged, dried, packaged again, opened again, cut up again, et cetera?

DR. GERDES: The risk is tremendously greater in the forensic setting.

MR. SCHECK: Now, in this connection, in the clinical area do you have occasion to do what is known as split samples for independent testing with other laboratories?

DR. GERDES: Occasionally we do that, yes.

MR. SCHECK: All right. When you are dealing with sensitive PCR kind of testing, how is a sample split or put aside for independent testing by another laboratory?

DR. GERDES: Well, the ideal situation would be at the time that the specimen is collected, you would collect two tubes and one would be transported directly to laboratory one and another is transported directly to laboratory two. There is no possible contact between those two labs.

MR. SCHECK: Is the idea--in terms of the handling when you are doing a split for an independent laboratory analysis, is the idea to minimize the exposure or handling of that sample in laboratory one?

DR. GERDES: Yes.

MR. SCHECK: And why is that?

DR. GERDES: Well, as I explained earlier this problem of cross-contamination, if that becomes an issue, then if you have designed the entire way in which the sample was tested in such a way that there is--it is impossible, absolutely impossible for laboratory one, their specimen to have come in contact with laboratory two or vice versa, then by the very design of the way you set it up, it eliminates that whole argument.

MR. SCHECK: All right. Now, in terms then again of minimal handling and multiple handling, is it your testimony there is a higher risk of contamination and error in the forensic application?

DR. GERDES: Yes.

MR. SCHECK: I would like to turn to the question of error rates. Your Honor, I think it will go faster here, I can finish this board and then take a break. Would that be fair? Do you want to break right now? Okay.

THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning break at this time. Please remember all of my admonitions to you. We will stand in recess for fifteen minutes.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Deputy Magnera, let's have the jury, please.

MR. CLARKE: Your Honor, one item if I might briefly?

THE COURT: Mr. Clarke.

MR. CLARKE: During testimony of Dr. Gerdes he brought up the fact that he had been granted certain funds as a result of a proposal to an IST or a, quote, newer or better method. I can't recall the words he used. During the break I asked Mr. Scheck and Dr. Gerdes about the availability of that proposal. I was informed by Dr. Gerdes that there would be no problem of providing a one-page copy of the grant that contains an abstract of the proposal, but as to the proposal, Dr. Gerdes explained that there was a proprietary interest and that that would not be available to the People. It is our request that that be provided. I think it is very relevant in this case for reasons that I can give if the Court would like to hear immediately.

MR. SCHECK: We have offered to make Dr. Gerdes available to explain in any great detail anything that Mr. Clarke wants to ask him about the proposal and the technique, and I would have to consult with him further about what the legalities are in terms of the proprietary nature of it.

THE COURT: All right. Why don't you confer over the lunch hour on that issue, all right? And what is--one of the Court's available remedies in these issues is to issue a protective order if anything like that is produced.

MR. SCHECK: Right, okay.

THE COURT: And that the copy not be copied and it be returned to the Court's custody upon review and that it can be kept here in the courtroom.

MR. SHAPIRO: Yes.

MR. CLARKE: Very well.

THE COURT: All right. I'm sure we can accomplish that.

MR. CLARKE: All right.

THE COURT: All right. Deputy Magnera, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that all the jurors have now rejoined us. Dr. John Gerdes is on the witness stand undergoing direct examination by Mr. Scheck. Mr. Scheck, you may continue.

MR. SCHECK: Thank you, your Honor.

MR. SCHECK: Dr. Gerdes, let's turn to the issue of error rates. How are errors known? How do you learn about errors in the clinical context?

DR. GERDES: Well, one way to determine if an error has been made in a clinical lab is by and through the proficiency testing. The NMBB program, as I explained earlier, that is blind proficiency testing and what that means is every week if we have sixty samples that are sent to us to be typed, ten of them are incorporated as controls and we don't know which ten those are, and then if during the course of our typing if we make errors, that will pick up the error immediately.

MR. SCHECK: Besides proficiency testing, which we will discuss a little bit more in a moment, are there other ways that a clinical laboratory finds out, such as your own and others that you are familiar with, that it made a mistake in error?

DR. GERDES: Again, in the case of bone marrow transplantation, as I explained, if we give marrow to a recipient that doesn't match, the patient comes down with graph versus host disease and can die because there was an incorrect match, so in the clinical setting mistake is fairly drastic.

MR. SCHECK: So in other words, would it be fair to say that in that in the clinical setting you do a DNA typing bone marrow solid organ transplant and post-transplant infectious disease screening, and if your laboratory made a mistake, that would be become known because the--because of an actual outcome of the patient and you would hear about it?

DR. GERDES: That's correct.

MR. SCHECK: And you would really hear about it, wouldn't you?

DR. GERDES: Yes, yes.

MR. SCHECK: Now, in the context of a forensic test, is there a difference in terms of finding out whether or not an error has been made in a case or how easy is that to determine?

DR. GERDES: It is extremely difficult, because in the legal system we depend upon the jury to decide what is truth and what is not truth, so it is really--there is no independent way of confirming whether the correct decision was made or not.

MR. SCHECK: Well, put it another way: In terms of the forensic labs, as opposed to the clinical labs, there is no independent outcome, objective independent outcome that you can make a comparison to? Would that be a fair statement?

DR. GERDES: That's correct, yes.

MR. SCHECK: So would you agree that in respect the error rates are not as well known in the forensic setting?

DR. GERDES: That is true.

MR. SCHECK: In terms of your examination, the laboratory standard in clinical laboratories in terms of the protocol, procedures and the standards set out by accrediting agencies compared to the 23 forensic labs that you've looked at, which has the higher laboratory standards in terms of specimen handling and basic fundamental DNA techniques?

DR. GERDES: In a clinical lab we have, as I mentioned, a number of agencies that inspect us. We are always being inspected, and these agencies, they have mandatory guidelines, mandatory requirements, there are laws that we have to follow, and so the standards are fairly high and they are mandated to be high by law. In a forensic laboratory there isn't a similar organization that would--that has mandatory accreditation for those kind of laboratories, so they are lower standards in the forensic lab.

MR. SCHECK: Now, the Asclad program, to your understanding is that--that is a voluntary program?

DR. GERDES: It is voluntary.

MR. SCHECK: And I think there has been testimony in this case that DOJ and Cellmark are but that the LAPD is not. Is that your understanding?

DR. GERDES: That's correct.

MR. SCHECK: All right. Now, in terms of proficiency testing, you began to tell us before, could you tell us briefly a little bit more about that national bone marrow donor transplant program. How many samples does your lab get a month?

DR. GERDES: At the present time we are getting 200 actual samples a month of which forty are controls that are incorporated into what comes into the lab and we don't know which forty are the controls.

MR. SCHECK: So you think that the--all sixty samples that you are getting that month that you have to do DNA typing on, you think that is a regular case?

DR. GERDES: They are not marked in any way. We know ten of them are controls, but we don't know which ten.

MR. SCHECK: And in terms of the definitions that we have been using in this case, would you--is that an external blind proficiency test, that is, it is done by an outside agency and the laboratory is blind, that is to say, you don't know whether it is a real case or not?

DR. GERDES: That's true.

MR. SCHECK: All right. And the--you also undergo what we've called open proficiency tests, that you know you are being tested and you are sent samples; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: And have you reviewed the proficiency tests that have been done by LAPD, DOJ and Cellmark and other forensic laboratories?

DR. GERDES: I have.

MR. SCHECK: And in terms of the proficiency tests themselves, the kind of samples received and the nature of it, in your judgment which is more rigorous, the clinical proficiency tests you have described or the forensic proficiency tests that you've reviewed of LAPD, Cellmark, et cetera?

DR. GERDES: Well, in order for a proficiency test to be realistic, it should really mimic exactly what you are trying to test as far as the ability for a lab to do something, and so what you attempt to do is design these samples to be exactly like what you are claiming to test. And in a clinical setting that means that the samples that are sent to us are essentially identical to a patient sample and it comes in and it is incorporated into our normal run for that day, our normal testing for that day, and then it is treated in the same way and you report the result, just like you would any patient. In the forensic setting that is a little more difficult because of the fact that, remember, these samples come in from an infinite variety of states, conditions, places where they were found, how old they are, what they were exposed to in terms of humidity and temperature and length of time, and so it is extremely difficult to mimic that on all different kinds of varieties of specimens that you might do. And mixtures are another problem. You should really do the hardest possible type of specimen to get an idea about the maximum error rate when you have the hardest test.

MR. SCHECK: Well, Dr. Gerdes--

DR. GERDES: That would be a degraded mixed specimen with very little DNA, for instance.

MR. SCHECK: Have those kind of--are those kind of samples done in the proficiency tests that were performed by LAPD, Cellmark and DOJ?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Have you reviewed the CTS and CAP proficiency tests that were done by LAPD in this case?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed some that were done by DOJ?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed some of Cellmark's tests?

DR. GERDES: Yes.

MR. SCHECK: All right. In your judgment, in terms of the nature of proficiency tests, which are more rigorous, the clinical or the forensic?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: In terms of the samples that are given to the laboratories for proficiency tests, which are more rigorous, the ones encountered in the clinical work or the forensic?

MR. CLARKE: Same objection.

THE COURT: Counsel, the problem was the testimony was the same or some of the proficiency tests. I don't know what range. He may have looked at one proficiency test per lab. That doesn't tell me anything.

MR. SCHECK: Oh.

MR. SCHECK: Have you looked at every proficiency test done by the LAPD?

DR. GERDES: Yes.

MR. SCHECK: How many proficiency tests did you look at from the Department of Justice?

DR. GERDES: Umm, I can't present a precise number. It was somewhere in the range of between six and ten.

MR. SCHECK: All right. Incidentally, are these the--the Department of Justice and LAPD doing some of the same tests?

DR. GERDES: Yes.

MR. SCHECK: In other words, the CTS and CAP tests that they were doing are precisely the same sample?

DR. GERDES: But sent to different labs, yes.

MR. SCHECK: Okay. Now, in terms of what you reviewed in those laboratories, and comparing that to the clinical tests you are familiar with, which would you say in terms of the samples are the more rigorous ones, more rigorous proficiency tests?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: In the proficiency that I saw, all of those proficiency tests involved unmixed blood specimens from known individuals or easier types of specimens, not--none of them were degraded or mixtures, for instance.

MR. SCHECK: So would you say the forensics?

DR. GERDES: I would say forensics.

THE COURT: Excuse me, gentleman. You are going to have to stop talking at the same time, especially you, Mr. Scheck. Slow down a little.

MR. SCHECK: My apologies.

THE COURT: The court reporter is writing me messages.

MR. SCHECK: Finally, Dr. Gerdes, are you familiar with the use of statistics in terms of DNA tests?

DR. GERDES: Yes.

MR. SCHECK: Are you an expert in population genetics?

DR. GERDES: No.

MR. SCHECK: Are you a user of some of those statistics?

DR. GERDES: Yes.

MR. SCHECK: Are you aware of statistical controversies in terms of--withdrawn. Let me put it this way: To your knowledge, in terms of the DNA test results in the clinical setting, is there any controversy over statistics?

DR. GERDES: There is.

MR. SCHECK: In the clinical setting?

DR. GERDES: Oh, in the clinical setting, I'm sorry. For the majority of the work we do in that setting there is no statistics involved.

MR. SCHECK: When you say no statistics involved, what do you mean?

DR. GERDES: Well, the kind of questions you would ask, for instance, if we are doing HLA, we are asking--the question is we have two individuals, do they have precisely the same HLA? And you have the two individuals right there, so you don't have to calculate what chance at random that would happen in a population because you know what two individuals you are looking at. You are either looking at--you are looking at a known person who needs that transplant and you are looking at a donor and you know both of those people.

MR. SCHECK: You are aware in forensics, I take it, one uses databases to calculate statistics?

DR. GERDES: Yes.

MR. SCHECK: Are you aware of the statistical controversy in forensics?

MR. CLARKE: Objection. I'm sorry. No foundation, calls for hearsay, also assumes facts not in evidence.

THE COURT: You can say yes or no he is aware of it.

MR. SCHECK: Are you aware of it?

DR. GERDES: I am aware of it.

MR. SCHECK: Incidentally, doctor, have you reviewed the report on "DNA technology in forensic science" by the national research council?

DR. GERDES: Yes.

MR. SCHECK: Do you regard that as an authoritative text?

DR. GERDES: Yes.

MR. SCHECK: Do you rely upon the conclusions in that text?

DR. GERDES: Yes.

MR. SCHECK: And have you read the section there dealing with statistical controversy?

DR. GERDES: Yes.

MR. SCHECK: Just the fact--all right. Your Honor, I believe we are finished with this board.

(Brief pause.)

MR. SCHECK: Now, Dr. Gerdes, did you conduct an examination of DQ-Alpha hybridization strips at the Los Angeles Police Department that began on May 20, 1993, strips from May 20, 1993, through August 25, 1994?

DR. GERDES: I did.

MR. SCHECK: And could you please tell us what kind of data these strips came from?

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Overruled.

MR. SCHECK: Well, did you get these from the Prosecution?

DR. GERDES: Yes, they were provided.

MR. SCHECK: Did you go to the lab and look at some of them?

DR. GERDES: I did.

MR. SCHECK: All right. Were you provided something that were known as LAPD validation studies?

DR. GERDES: Yes.

MR. SCHECK: What were those?

DR. GERDES: Well, LAPD, when they first set this up in May of 1993, they collected specimens from--

MR. CLARKE: I'm sorry, excuse me. Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. Did you receive documentation from the Los Angeles Police Department entitled "Validation studies"?

DR. GERDES: There is a cover page that discusses that they looked at various specimens for the purpose of validation. I don't think it was really titled "Validation studies," but I have called it that and they use it as--and on that page it discusses using those specimens for the purpose of validation.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, I would show the witness what has previously been marked as Defense 1181-A.

THE COURT: All right. Have you shown that to Mr. Clarke?

MR. SCHECK: Actually, while we are at it, 1181-B as well.

THE COURT: All right.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. SCHECK: You said Clarke and I thought one Clark was enough.

THE COURT: Clarke and Clark. Thank you.

DR. GERDES: Yes.

MR. SCHECK: And I will just briefly put those on the elmo to remind the jury what we are looking at.

(Brief pause.)

MR. SCHECK: Could we--

MR. SCHECK: So this is a document entitled "PCR method validation training record"?

DR. GERDES: Yes. I didn't recall what they actually titled it as such. It looks like they did.

MR. SCHECK: All right. And--and 1181-B is--represents what?

DR. GERDES: This is a list of some of the standards, the individuals that they use for the validation.

MR. SCHECK: So in other words, what they are indicating here is that a series of bloodstains, saliva from swabs and cigarette butts, hair, blood saliva and hair sets, mock vaginal swabs, nine known bloodstains, family studies, these are known samples that were then sent out to the analysts to type; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: And it indicates here that all the above validation work was performed by Erin Riley and Collin Yamauchi and every validation sample either gave the expected typing result or no typing result was observed--at no time was an incorrect typing result observed?

DR. GERDES: That is what it says.

MR. SCHECK: All right. Now, did you review all the hybridization strips based on this PCR validation set of samples from the LAPD?

DR. GERDES: I did.

MR. SCHECK: All right. And did you review as well the--all the LAPD proficiency test strips from their internal tests, from the proficiency tests, from the collaborative training service and the College of American Pathology?

DR. GERDES: Yes.

MR. CLARKE: I'm sorry, objection; no foundation.

THE COURT: Overruled.

MR. SCHECK: Did you review samples that were received by LAPD from what is called their Korean database?

DR. GERDES: Yes.

MR. SCHECK: All right. And that is blood samples from people that are self-described to be Koreans that they typed; is that right?

DR. GERDES: That's correct.

MR. SCHECK: Did you look at case work strips during this period of May, 1993, to August, 1994?

DR. GERDES: There were some case work strips, yes.

MR. SCHECK: All right. Did you look at as many as you were permitted to see?

DR. GERDES: I looked at everything they gave me.

MR. SCHECK: All right. And when you evaluated the case work strips--withdrawn. On the proficiency tests, the validation studies and the Korean database samples, did you know what the sources of those samples were?

DR. GERDES: Yes.

MR. SCHECK: So they are known types; is that correct?

DR. GERDES: They are standards, that's correct.

MR. SCHECK: Standards. Now, in the case work, when you looked at the various strips from case work, did you know the source of every one of those samples in a case work--set of case work strips?

DR. GERDES: No.

MR. SCHECK: Which--which strips would you know in a case work in a case work sample came from a known source?

DR. GERDES: That would be the positive control and the negative controls from that particular case and any sample that was referred to as a reference sample would have been known to have come or defined to have been derived from one individual.

MR. SCHECK: All right. Let's just review it now for a second. The positive control, is that the 1.1/4 DNA sample that comes with the DQ-Alpha kit?

DR. GERDES: That's correct.

MR. SCHECK: The negative control or the negative controls, there is two kind of negative controls?

DR. GERDES: Yes.

MR. SCHECK: All right. One kind is the--what is known as the extraction control, that would be a sample that is not supposed to contain DNA?

DR. GERDES: Yeah. The extraction control consists of basically using the substrate which would be a control swab or a piece of cloth that is run through the DNA extraction process all the way through to the typing process and it controls for foreign DNA that might have been incorporated or accidentally introduced into that test during those procedures.

MR. SCHECK: And is there another control that is introduced at the end of the process when you amplify up the DNA?

DR. GERDES: Yes.

MR. SCHECK: That is called, what, a negative amplification control?

DR. GERDES: Amplification blank. Some people call it a water control. It basically does not go through the procedures involved in extracting DNA. It is incorporated at the stage where you copy the DNA or amplify the DNA, and so it only controls for the accidental incorporation of DNA at that stage.

MR. SCHECK: Now--a known reference sample in a case would be, let's say, in a sexual assault case if they took a sample from the victim, that would be a blood sample that would be considered a known; is that right?

DR. GERDES: It is considered to have come from one individual. I wouldn't know the type--the anticipated type, but it is--I think I--it is safe to assume that that is defined to have been obtained from a single individual.

MR. SCHECK: So--

DR. GERDES: It should not be a mixture.

MR. SCHECK: So when you are looking at a DQ-Alpha strip from a reference sample in case work from a known individual, you should see no more than two alleles or two--

DR. GERDES: That's correct.

MR. SCHECK: If you see three alleles--

DR. GERDES: That is an indication that it has to be a mixture, or in this case, since it was defined as having come from one individual, if you have an indication of three there, then that has to be contamination, that has to be foreign DNA that was incorporated or somehow got into that sample.

MR. SCHECK: All right. So when you looked at the case work strips from LAPD, you were examining to see whether there was contamination?

DR. GERDES: Yes.

MR. SCHECK: And you would determine that by looking at the positive controls that come with the kit, known reference samples and the two kind of--and the negative controls?

DR. GERDES: Correct.

MR. SCHECK: All right. And incidentally, if you get a dot, something showing up in the negative control, does that indicate contamination?

DR. GERDES: Absolutely.

MR. SCHECK: All right. So did you conduct an analysis of all these strips from the validation studies, the proficiency tests, the Korean database and all the case work samples that you could see at the LAPD from May of 1993 when they started, through August of 1994?

DR. GERDES: I did.

MR. SCHECK: All right. And what I would like to do now, your Honor, is put up a chart and will--doctor, do you have a set of strips that would illustrate how you--how you read them and went through your analysis to determine contamination?

DR. GERDES: Yes.

MR. SCHECK: All right. And I have shown this previously to Mr. Clarke. Could we mark this strip Defendant's next in order?

THE COURT: 1286, Mrs. Robertson? 1286.

(Deft's 1286 for id = strip)

MR. SCHECK: While Mr. Clarke is looking at that, I would like to pull out a board.

(Brief pause.)

THE COURT: All right. We will mark this chart next in order, 1287.

(Deft's 1287 for id = photograph)

THE COURT: This is called "Strips: Percent of contamination and/or artifacts." Mr. Scheck.

MR. SCHECK: Yes. First, maybe we could pull up and look at the entire sheet here and you can describe for us what this is generally.

MR. SCHECK: Now, is this the way you--is this the form in which you received most of this data?

DR. GERDES: Yes.

MR. SCHECK: All right. And up on the top it says what, "DNA hybridization record"?

DR. GERDES: Yes.

MR. SCHECK: And that would indicate--8/25, does that indicate the date that this hybridization was run?

DR. GERDES: Yes.

MR. SCHECK: And on top it indicates an analyst there. Is that a gentleman that you know works in the DNA lab whose name has been discussed?

DR. GERDES: Yes.

MR. SCHECK: Harry Klann?

DR. GERDES: Yes.

MR. SCHECK: Underneath it where it indicates "Confirming analyst," that would be the initials of who?

DR. GERDES: Collin Yamauchi.

MR. SCHECK: All right. And below that are the strips; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: And below that are--is the data that the analyst would write down recording what the analyst is seeing or concluding; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: It least what each of those is, the negative control, the positive control and the samples?

DR. GERDES: Correct.

MR. SCHECK: All right. Now, if we could focus in here, did you find contamination in this series of strips from the Korean database?

DR. GERDES: I did.

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. CLARKE: I'm sorry, move to strike the answer.

THE COURT: The answer is stricken. The jury is to disregard.

MR. SCHECK: Would you describe for us what you observed in these samples and what conclusion you drew?

MR. CLARKE: Same objection as to foundation.

THE COURT: That is a multiple question. He can describe what he observed at this point.

MR. SCHECK: Please first tell us what you observed.

DR. GERDES: I observed the typing results of these particular strips.

MR. SCHECK: All right. And what were these based on--what were these--what were these strips to represent?

DR. GERDES: In this particular case they were typing the Korean database. The top strip is the negative control.

MR. SCHECK: So--

DR. GERDES: That is the amplification negative control we talked about earlier. The second is the positive control which is the positive control that is incorporated in the kit. That is the 1.1, 4 control.

MR. SCHECK: Excuse me for a second, Dr. Gerdes. Maybe it would be easier, I think that--

DR. GERDES: Do you want me to go up--

MR. SCHECK: You have learned how to use this device?

DR. GERDES: I think so.

MR. SCHECK: Your Honor, may he leave the witness stand and use the pointer, please.

THE COURT: Yes.

DR. GERDES: (Witness complies.)

MR. SCHECK: Can you please describe for the jury how you analyzed this strip?

MR. CLARKE: I'm sorry, your Honor. I have an objection as to foundation as to this entire exhibit.

THE COURT: Sustained.

MR. SCHECK: What--reviewing these records--

(Brief pause.)

MR. SCHECK: What do these records represent? What do these strips represent based on these records?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Where did you get this from?

DR. GERDES: I obtained this from--during discovery it was obtained from the Los Angeles Police Department.

MR. SCHECK: And based on these records, what were you told this represented?

MR. CLARKE: Objection, calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: From whom did you learn what this was?

MR. CLARKE: Well, same objection.

THE COURT: Overruled.

MR. SCHECK: Did you have any conversations with Mr.--did you ever visit the lab and discuss how these records were put together with Mr. Yamauchi and Mr. Matheson?

DR. GERDES: Yes.

MR. SCHECK: All right. And based on those conversations what is your understanding of what these records represent?

MR. CLARKE: Same objection.

THE COURT: All right. I'm going to allow testimony on this subject to a foundation being laid for what it is.

MR. SCHECK: All right. Proceed.

DR. GERDES: My understanding is that this represents a particular typing run of--on which there are a number of individuals from the Korean database and a positive control and a negative control.

MR. SCHECK: All right. Could you please now in analyzing the strips--back up--okay. Could you please--

MR. CLARKE: Sorry. I still have the same objection as to foundation.

THE COURT: Noted. Thank you. There will be a standing objection to this type of document.

MR. SCHECK: Please tell us what these--what these strips are, according to their records.

DR. GERDES: The top strip--and I'm trying to get an arrow to work.

MR. SCHECK: Draw on that and see if you can move it.

(Brief pause.)

MR. SCHECK: He has got it.

DR. GERDES: Okay.

MR. SCHECK: Move it around now.

DR. GERDES: Okay. This particular strip right here, (Indicating), that moves along all the way across, this strip.

THE COURT: Appears to be the strip marked 261-1.

MR. SCHECK: What is that?

DR. GERDES: Correct. 261-1 represents the negative amplification control for this particular set of strips. Whoops.

MR. SCHECK: What is the next one down?

DR. GERDES: The next one down here represents the positive control, 261-2, and as you can see, it types as a 1.1, 4.

MR. SCHECK: Okay. What is the next one down?

DR. GERDES: The next series represents different individuals that were in the Korean database.

MR. SCHECK: All right. And how many in--could you look--directing your attention first to 261-4, how many alleles was that type to have?

DR. GERDES: I have to look at the sheet, but I believe they typed this as a 1.1, 1.1 because of this dot here, (Indicating), which represents the 1.1.

MR. SCHECK: Can we move out a little on this.

DR. GERDES: And this dot here which represents the 1, so it was typed at a 1.1, 1.1.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Okay. Just move it up. Pull it back. Pull it over. Could you move to the next one.

MR. SCHECK: Please describe on any of these known from the Korean database did you see more than one genotype or extra allele?

DR. GERDES: Yes.

MR. SCHECK: Could you tell us which one?

DR. GERDES: Well, none of these particular samples were typed as having a 4 allele and you can see here, and if you bring it up a little further I think it is clear, that you can see a 4 dot here, (Indicating), confirmed by the 1.2, 1.3, 4 dot here, (Indicating), and that is on this particular sample and it is also on this particular sample here, (Indicating), and it is on this particular sample here, (Indicating). In this case there is a dot present because there was a 1.2.

MR. SCHECK: Now, what does the existence of--what does the existence of the 4 lighting up at 261-4 and the 1.3 dot lighting up at 261-4 on that strip and the 4 and the 1.3--the 1.2, 3, 4 dot lighting up on the 261-6 strip? What is the significance of that?

DR. GERDES: Well, the significance of those weak dots are that there really should not be more than two alleles here. That represents a third allele. These samples came from a database presumably from single individuals, and therefore that represents human DNA that shouldn't be there, and that is what our definition of contamination is.

MR. SCHECK: And that holds I take it also for 261-7?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, if we move back a little bit, focusing on another part of this sheet.

MR. SCHECK: How did LAPD--what observations did they make with respect to some of these samples in terms of that 4?

DR. GERDES: They recorded the presence of those, but didn't incorporate them into their typing result.

MR. SCHECK: So in other words, in the fourth strip down that you are pointing that they recorded as a 1.1 with a 4; is that correct?

DR. GERDES: Correct.

MR. CLARKE: I'm sorry, your Honor, would it be possible to have the chart moved?

THE COURT: Yes.

MR. CLARKE: Thank you.

MR. SCHECK: Put this down for the time being.

(Brief pause.)

MR. SCHECK: And in the seventh strip down, again those--what does that nomenclature indicate "4 less than c"?

DR. GERDES: It indicates that there was a 4 dot observed, but it was less than the control dot and the control dot, if you remember, is the dot that determines whether or not there was an adequate amount of DNA to proceed with typing.

MR. SCHECK: Now, in your opinion does the fact that that 4 is less than the control dot, does that mean that the--those 4's are not contaminants?

DR. GERDES: Absolutely not.

MR. SCHECK: Why?

DR. GERDES: Because of--there are a number of possible explanations as to why you would have that additional dot, and there are no known descriptions of that particular dot, the 4 dot, having what are known as cross-hybridization problems, and so the only explanation for that particular dot is that it is real, not an artifact, and that that dot represents additional human DNA.

MR. SCHECK: So in other words, additional human DNA, that 4 dot means that those samples are contaminated in some fashion somehow?

DR. GERDES: It does.

MR. SCHECK: Now, did you, in going through the strips that you looked at--and I would ask that this be marked as--what's next in order?

THE COURT: 1288.

MR. SCHECK: 1288.

(Deft's 1288 for id = chart)

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, if I make a request is that--to expedite this, could we reconfigure the errors on the typing strip at the break and then print it out?

THE COURT: Yes, yes.

MR. SCHECK: Should we give that a number and I will make sure to do that.

THE COURT: Yes. It should be 1286-A.

(Deft's 1286-A for id = photograph)

MR. SCHECK: We will do that with Mr. Clarke at the break. And so this would be 1288.

MR. SCHECK: Now, did you--did you conduct a--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Did you prepare a chart indicating in all the samples you looked at that the LAPD from the validation studies, the Korean database, the proficiency tests and the case work, all the strips you looked at, how many times you saw a 4 allele in a known sample where it shouldn't be which in your opinion was contamination?

DR. GERDES: I did.

MR. SCHECK: All right. And could you please explain what this chart represents?

DR. GERDES: Well, this represents a graphical picture of that beginning in May. What we see is that they really didn't experience it initially. I didn't observe, anyway, these extra 4 dots--

MR. SCHECK: Well, before you leave there, just so we understand what we are talking about, when that box says 5/93 and underneath it 0/32, what does that represent?

DR. GERDES: This is May of 1993 and under here are the number of type strips I looked at and how many times I found that 4 as an additional dot.

MR. SCHECK: All right. So--

DR. GERDES: And then represents--the percentage would be calculated from this and then displayed.

MR. SCHECK: So if I could move through it quickly then, 5/93?

DR. GERDES: Nothing.

MR. SCHECK: 32 strips, nothing?

DR. GERDES: 6/93, 50 strips, nothing; 7/93, 56 strips, nothing; 8/93, 1 out of 38; and 9/93 now, 9 out of 136; and 10/93 there were 5 out of 97; and in 11/93 there were 2 out of 11; in 12/93, zero out of 17; January of `94, 18 out of 50; February, zero out of 8; March, 1 out of 5; April, 18 out of 46; May, 4 out of 45; June, 1 out of the 16; July, 1 out of 12; and August, 10 out of 61.

MR. SCHECK: All right. Then if we pull back and look at the chart as a whole, you then looked at those absolute numbers and created a sample bar graph of what that--what this 24 allele contaminants represented?

DR. GERDES: Correct.

MR. SCHECK: As a percent?

DR. GERDES: Correct.

MR. SCHECK: All right. And as far as the 4 allele is concerned, when you see an extra 4 allele, there is no question in your mind that is a contaminant?

DR. GERDES: It has to be contamination.

MR. SCHECK: Now, I would like to look at what I would ask to be marked as--1288, this will be 1289.

THE COURT: All right. 1289.

(Deft's 1289 for id = chart)

MR. SCHECK: Did you do a similar analysis for the 1.2 allele?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, what is the 1.2 allele in the strip? Is there any particular dot for the 1.2 allele?

DR. GERDES: No. There isn't a specific probe for this particular allele. You depend upon the 1.2, 1.3, 4, dot and interpret it in context of the other dots to make a decision as to whether it is really a 1.2 or not.

MR. SCHECK: So did you perform a similar analysis in terms of numbers of strips and percentages whenever you saw an additional 1.2 allele on a known sample?

DR. GERDES: Yes.

MR. SCHECK: All right. And this table represents that?

DR. GERDES: Yes.

MR. SCHECK: All right. And whenever you see a 1.2 allele, an extra 1.2 allele, in your opinion is that definitely contamination?

DR. GERDES: It is definitely contamination.

MR. SCHECK: Now, I would ask to mark what is 1290.

(Deft's 1290 for id = chart)

MR. SCHECK: Did you do a similar analysis for the no. 2 allele?

DR. GERDES: I did.

MR. SCHECK: And does this chart represent that?

DR. GERDES: It does.

MR. SCHECK: All right. And it is a percentage analysis as well as the absolute analysis?

DR. GERDES: That's correct.

MR. SCHECK: Just to move in, just to give us a sense of it, for example, in January of 1994, you are seeing what there?

DR. GERDES: 20 out of 50 strips which whatever percentage that is, and in February there was zero out of 8; 2 out of 5 in March; 17 out of 46 in April; 2 out of 45 in May.

MR. SCHECK: Et cetera?

DR. GERDES: Et cetera.

MR. SCHECK: All right. Now, I would ask to mark this as Defense 1291.

THE COURT: So marked.

(Deft's 1291 for id = chart)

MR. SCHECK: This would be an analysis of the 3 allele?

DR. GERDES: Correct.

MR. SCHECK: And I take it that--

DR. GERDES: They don't seem to have too much of a problem of the 3 allele. There was only one observation that was made, but I can't read it.

MR. SCHECK: 3 out of 61?

DR. GERDES: 3 out of 61, yes.

MR. SCHECK: When you see a 3 allele is there any doubt in your mind an extra 3 allele, that that is contamination?

DR. GERDES: It is definitely contamination.

MR. SCHECK: Now, are there certain--what is an artifact?

DR. GERDES: (No audible response.)

MR. SCHECK: In this DQ-Alpha system?

DR. GERDES: It is a result, a mistaken result that is as a result of a flaw in the system.

MR. SCHECK: All right. Now, is there some--in other words, you see a dot that is a result of some defect in the system and it is not necessarily--

DR. GERDES: Correct. A limitation of the typing system itself has created that signal so that you can't really determine if it is real or not.

THE COURT: Mr. Scheck and Dr. Gerdes, please, you can't talk at the same time.

MR. SCHECK: All right.

MR. SCHECK: Is there a--with the 1.1 allele, is there sometimes something that arises as an artifact?

DR. GERDES: Yes.

MR. SCHECK: All right. Do you have something from the user guide that can demonstrate that for us?

DR. GERDES: I believe so.

(Brief pause.)

DR. GERDES: I gave it to you.

MR. SCHECK: It is a trick question.

(Brief pause.)

MR. SCHECK: I ask that this be marked as--

THE COURT: 1291.

MR. SCHECK: 1291.

THE COURT: Excuse me, 1292. 1292.

MR. SCHECK: 1292.

(Deft's 1292 for id = chart)

MR. SCHECK: Can we focus in on the strips known as 7 and 8 there?

MR. SCHECK: Now, what does this illustrate, doctor?

DR. GERDES: Can you focus that a little better and get it enlarged a little better? These two strips represent a typing in which you have a classic example of what is known as the DX gene and that is an artifact in this particular typing system. It is a limitation of this system and it occurs when you have alleles other than the 1, so here we have a 2 and a 3, for instance, in both cases, and the C dot is found and there is you can barely see it, but there is a 1.1 here in both of these strips.

MR. SCHECK: Now, is that one--

DR. GERDES: Here, (Indicating), and here, (Indicating).

MR. SCHECK: All right. Okay. All right. Now, is that--maybe we should have Mr. Harris do this.

DR. GERDES: I'm sorry.

MR. SCHECK: Okay. Why don't you put another dot on the other 1.1 there. Okay, 1.1 there. And could you write on the upper left-hand side of the top of the chart, "DX." Do we know how to do that?

DR. GERDES: I believe so. (Witness complies.)

MR. SCHECK: All right. Now, the--I take it then when you see a light 1.1 dot but no 1 dot on the far left-hand side--is that correct?

DR. GERDES: That's correct.

MR. SCHECK: --that is what you call a classic DX?

DR. GERDES: Yes.

MR. SCHECK: And what is--if you can very, very simply, just tell us what that is? Why does that happen?

DR. GERDES: Well, the explanation is that there is another gene that is similar enough to the DQ-Alpha gene to have some of the probe signal to give some probe signal on that particular dot, and so if you have a lot of DNA, and by the literature that means greater than six nanograms of DNA, you can sometimes see this artifact.

MR. SCHECK: Now, let's assume that in these two instances that we are looking at where the arrows are pointing, those are the expected genotypes from that sample, is a 2 and a 3, right?

DR. GERDES: Correct.

MR. SCHECK: Because the 2 and the 3 dots are lighting up?

DR. GERDES: That's correct.

MR. SCHECK: Let's assume for--that the real genotype that you are typing is a 1.3, 2 or some other allele, a 1.3 or a 1, that would light up the 1 dot on the left-hand side.

DR. GERDES: Okay.

MR. SCHECK: And you also saw a 1.1 dot.

DR. GERDES: Yes.

MR. SCHECK: Could you tell whether that was the DX or a contaminant?

DR. GERDES: No.

MR. SCHECK: You couldn't determine either way?

DR. GERDES: Because the definition of DX requires that you have actually two probes here, one, the 1 dot confirms that there is actually a 1 there, so if there is another allele there that is a 1, that dot will light up and now the 1.1 is really confirmed by that first dot and so you can't make a decision, a scientifically sound decision, unless you do additional testing, sequence it or do something else, because in that particular set-up it could be a DX or it could be a real allele.

MR. SCHECK: Well, is it a good thing in terms of a typing systems to have this kind of possible DX artifact that confuses interpretation?

DR. GERDES: No. The problem with this is if it is from one individual, you can sometimes, as in this case, make an excuse that that 1.1 is just an artifact, but if it is in a forensic sample and you don't know it is from one person, now you can no longer decide is that real or is that due to a mixture, and especially in a situation where you have that 1 dot.

MR. SCHECK: Now, when you went through the DOJ typing strips, did you do an analysis of instances where you found extra 1.1 alleles?

DR. GERDES: I did.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, could we print this out from the elmo now?

THE COURT: Yes.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: 1292-A.

THE COURT: So marked.

(Deft's 1292-A for id = printout)

MR. SCHECK: And at an appropriate time, your Honor, I would ask to pass it to the jury because I understand that it is in terms of seeing the light dots it is easier on this one than it is on the monitor.

THE COURT: I don't know. Can you see it right now?

MR. SCHECK: Sorry?

THE COURT: It is clear on what the elmo has printed out there.

MR. SCHECK: Yeah. I think you can see it on what the elmo has printed out.

THE COURT: All right. Let's do it now since if we do it later the jury may not recollect what this relates to.

MR. SCHECK: Thank you.

THE COURT: All right.

(The exhibit was passed amongst the jury.)

MR. SCHECK: Dr. Gerdes, you--would it be pair to describe--

THE COURT: Excuse me. I'm sorry, counsel. The record should reflect that each member of the jury has had an opportunity to view 1292-A.

MR. SCHECK: And 1292.

THE COURT: -a.

MR. SCHECK: Now, 1292-A can be described as the classic DX, right?

DR. GERDES: That is the classic example that is used to show this artifact phenomena, yes.

MR. SCHECK: How many times, in your analysis of looking at extra 1.1 alleles, did you see the classic DX without a 1 dot?

DR. GERDES: Of the alleles that were counted as 1.1 extra dots, 7.6 percent of those were due to this classic kind of example.

MR. SCHECK: And would that be 9 out of 46?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, what is the next one, your Honor, I'm sorry?

THE COURT: 1293, I believe.

MR. SCHECK: 1293.

THE COURT: Yes, 1293.

(Deft's 1293 for id = chart)

MR. SCHECK: Did you chart in the same manner that you did--did you create a chart of extra 1.1 dots that you saw?

DR. GERDES: Yes.

MR. SCHECK: And is this that chart?

DR. GERDES: It is.

MR. SCHECK: This again is representing May through August of 1994?

DR. GERDES: Correct.

MR. SCHECK: So what you are telling us is that nine of these 1.1's were the classic DX?

DR. GERDES: Correct.

MR. SCHECK: And the rest of them were 1.1's where there were 1 dots present?

DR. GERDES: Correct.

MR. SCHECK: Where it could be a contaminant?

DR. GERDES: Correct.

MR. SCHECK: And we would call the classic DX an artifact?

DR. GERDES: Correct.

MR. SCHECK: All right. Now, with respect to the 1.3 dot, did you compile a similar chart of your observations of all the strips?

DR. GERDES: I did.

MR. SCHECK: And I would ask to mark this 1294.

(Deft's 1294 for id = chart)

MR. SCHECK: Now, the 1.3 allele, when you see an extra 1.3 allele, are there situations where that could be an artifact as opposed to a contaminant?

DR. GERDES: Yes. It has been observed and described in the literature that on this particular allele, if you use DNA concentrations greater than six nanograms, you can see faint signals on that particular dot.

MR. SCHECK: Is it your understanding that the samples in question were contemplated to have as much as six nanograms, the ones that you looked at?

DR. GERDES: Some of these may have, yes.

MR. SCHECK: All right. Does this represent the number of 1.3 alleles that you saw?

DR. GERDES: It does.

MR. SCHECK: When you are looking at a forensic case and you see a 1.3 allele, an extra 1 dot, and the sample has less than six nanograms of template DNA, what is the best interpretation of that?

DR. GERDES: If it is less than that amount of DNA, the best interpretation is that it is a true contaminant.

MR. SCHECK: All right.

DR. GERDES: It is extra DNA.

MR. SCHECK: Now, did you--now, I would like to turn to the larger chart. Did you do a compilation of all those individual allele charts, pulling them all together to look at all the strips that you examined? And this is--what did we mark this as?

MR. DOUGLAS: 1287.

MR. SCHECK: 1287.

MR. SCHECK: On 1287, did you do an overall chart indicating what you found in terms of contamination and the artifacts you described, the--the seven DXs?

DR. GERDES: Yes.

MR. SCHECK: Over this period between May of 1993 and August of 1994?

DR. GERDES: I did.

MR. SCHECK: And this represents absolute numbers and percentages?

DR. GERDES: Correct.

MR. SCHECK: Now, did you also look at what are known as runs?

DR. GERDES: Yes.

MR. SCHECK: What is a run as opposed to these strips?

DR. GERDES: On a given day you will test a series of strips. It can be a minimum of perhaps eight or as many as thirty or forty, but on a given day, if you look at all of those strips, that is called a run.

MR. SCHECK: All right. Now, did you do--so in other words, these are the individual strips by month?

DR. GERDES: Those are the individual strips.

MR. SCHECK: And did you compile an analysis of runs, all the strips in a day, to see whether or not there was a definite contaminant on a run that didn't represent an artifact in any way?

DR. GERDES: I did.

MR. SCHECK: All right. I would like to take a look at that.

(Brief pause.)

MR. SCHECK: Can you please describe for the jury what this chart represents.

DR. GERDES: This represents--

MR. SCHECK: I have to mark this. This would be 12--

THE COURT: 1295.

MR. SCHECK: 1295. And there would be a chart entitled "Runs: Percent with contamination by month, May, 1993, through August of 1994."

(Deft's 1295 for id = chart)

DR. GERDES: Correct.

MR. SCHECK: All right. Would you please describe what this represents.

DR. GERDES: Well, it is titled "Percent with contamination" now, not "Contamination and/or artifact," so what I would do is if you look at all the strips that are done on a given day, if you--you can look at those in the context of one another and make a scientific decision as to whether or not this is true contamination or not. And the kind of things that would convince you that it is contamination is, let's say, for instance, I found a weak 1.1 on one strip that might be DX, might be an artifact, but if I also found a 1 dot on the no DNA control on that same day and I found a 1 dot on the extraction control on that same day, and I found that same 1.1 dot on other strips that had 1's where I can't make a decision, if you look at that all in context and look at the whole pattern, it is--you can confirm that this is this is not just a random thing that happens at a low percentage of the time due to this DX artifact, it is really contamination.

MR. SCHECK: Well, these charts represent--let's just take in May when--in May of 1993 there were two runs but you didn't see any contamination in that run in that laboratory?

DR. GERDES: That's correct. They started in May and they did 45 strips, if I remember correctly. None of those strips showed any indication of the kind of things we are talking about as either artifacts or contamination.

MR. SCHECK: All right. And then--and that represents two runs?

DR. GERDES: That is only two days, that's right.

MR. SCHECK: Then all of a sudden June of 1993 what happens?

DR. GERDES: Well, they did four runs, four different days they did typing strips, viewing each of those in the context of one another. Two of them were confirmed that now they have the presence of contamination in the lab.

MR. SCHECK: And we are talking about this is contamination negative control or the 4 allele, 3 allele, 1.2 allele and the 1.1 under circumstances where you can confirm it is definitely contamination and not an artifact?

DR. GERDES: That's correct, by the criteria I mentioned earlier where I can definitely confirm that this is contamination, not one of these artifacts.

MR. SCHECK: Now, as a DNA laboratory director, when you start seeing on the runs in June of 1993 that fifty percent--what would that be, fifty percent--

DR. GERDES: Fifty percent.

MR. SCHECK: Fifty percent of contamination, as a laboratory director what do you do when you are dealing with the PCR system?

DR. GERDES: Well, anyone who has worked with the system for any given amount of time, you become extremely paranoid about this problem, so if your controls show any indication, and I mean any indication of contamination, what you do is you shut down, you bleach, you clean, you make all your reagents over, you run a large series of control strips and make sure they are clean and then you start over if all of that works.

MR. SCHECK: If you don't do that and you just ignore the contamination, is there a problem because this is chronic and accumulates?

DR. GERDES: Yes. If you don't identify the source of the contamination and remove it, it stays in the laboratory and you don't know where it is and it is going to come--it will become evident on a sporadic and random basis initially, but eventually it will tend to build up. And I didn't point it out on those other strips, but you can see a build-up from `93 to `94 in the occurrences. You can see it here as well on the run strip, that you started with nothing, all of a sudden they have 50, now they are up to 66 percent or two-thirds of the strips and on some months--

MR. SCHECK: Two/thirds of the runs?

DR. GERDES: And on some months it goes all the way up so that all of the runs are contaminated.

MR. SCHECK: Now, when you find contamination like this, it could be from any of a number of sources or procedures?

DR. GERDES: Yes.

MR. SCHECK: And what you are saying, that should laboratories document contamination?

DR. GERDES: In my opinion it is absolutely imperative.

MR. SCHECK: Should you document the steps that are taken to correct the contamination problem once you have it in your laboratory?

DR. GERDES: Yes.

MR. SCHECK: How important is that?

DR. GERDES: I think it is extremely important. In fact, there are forensic guidelines that state that that is a recommendation that they should do, that they should actually do that in forensic labs. We do it in research.

MR. SCHECK: Stop right there. You say forensic guidelines. What are you talking about?

DR. GERDES: It is called a Twgdam guideline and it stands for the technical working group of DNA analysis methods.

MR. SCHECK: All right. I mean, it is just basic sound laboratory practice that if you detect the amount of contamination that you saw on the runs at the LAPD right away, that you have to document it and document all the steps that ought to be taken to correct it?

DR. GERDES: I should document that it happened, document what you did to fix it, document what you did to determine it has been removed from the lab and then proceed.

MR. SCHECK: And could this contamination also come simply from the methods that you use to handle samples?

MR. CLARKE: Excuse me. Objection, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: All right. Does contamination arise from sample handling methods?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. In your experience as a DNA laboratory director, what are the various sources of contamination problems such as the ones you saw here at the LAPD?

DR. GERDES: Well, as I have described that already, you can have introduction of foreign DNA by handling a specimen in such a way that if you are not careful that you can get transfer of DNA from one sample to another. So if you are working in this case with these samples are known to come from single individuals, that is one possible explanation as to how it got there, is you have--you handled it, you know, in a sloppy manner and you accidentally introduced somebody's DNA into that particular sample during the process of preparing it and handling it.

MR. SCHECK: Now, just in terms of the strips of the samples that you were looking at, you were looking at known samples from those validation studies; is that correct?

DR. GERDES: Yes.

MR. SCHECK: You were looking at samples as part of a database where the laboratory receives a single blood sample and has to type it?

DR. GERDES: Correct.

MR. SCHECK: You were looking at the positive controls on case work, correct?

DR. GERDES: Correct.

MR. SCHECK: Now, those are not supposed to be, I take it, degraded samples or mixtures?

DR. GERDES: No. Those are going to be the easiest possible sample to type. You've got a lot of DNA there or adequate DNA certainly and they should be defined from single individuals.

MR. SCHECK: So the analysis of contamination that you've just presented to us is based upon known exemplars or easy samples?

DR. GERDES: Yes.

MR. SCHECK: Your Honor, actually I think it is probably a good--before I get to the May through July chart--

THE COURT: All right. Ladies and gentlemen, I'm going to take our recess for the lunch hour. Please remember all of 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, don't allow anybody to communicate with you with regard to the case. We will stand in recess until 1:30.

THE COURT: All right. Dr. Gerdes, you are ordered to come back at 1:30.

(At 12:00 P.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; WEDNESDAY, AUGUST 2, 1995 1:28 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: Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. Deputy Magnera, let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Dr. Gerdes, would you resume the witness stand, please.

John Gerdes, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: You are reminded that you are still under oath. Would you state your name again for the record.

THE COURT: All right. The record should reflect that Dr. John Gerdes is on the witness stand undergoing direct examination by Mr. Scheck. Good afternoon, doctor.

DR. GERDES: Good afternoon.

THE COURT: Doctor, you are reminded, sir, you are still under oath. Mr. Scheck, you may continue with your direct examination.

MR. SCHECK: Thank you, your Honor. Good afternoon, ladies and gentlemen of the jury.

THE JURY: Good afternoon.

MR. SCHECK: Your Honor, we showed Mr. Clarke over the lunch the printout that I think we designated Korean database 4 contaminant that we didn't print before and that is 1286-A.

THE COURT: So noted.

MR. SCHECK: And I would like to put that back for a second on the elmo.

THE COURT: Sure. Mr. Harris.

(Brief pause.)

DIRECT EXAMINATION (RESUMED) BY MR. SCHECK

MR. SCHECK: Now, Dr. Gerdes, this was the set of strips from the Korean database where you identified for us before the four contaminants in those known samples; is that right?

DR. GERDES: Yes, that's right.

MR. SCHECK: Now, let me call your attention to the very top strip. What strip is that?

DR. GERDES: That is the negative amplification control.

MR. SCHECK: And in this instance, the negative amplification control, did that show any contamination or any dots on it?

DR. GERDES: No, it did not.

MR. SCHECK: Yet on these set of strips you've identified contaminating alleles in sample; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: Well, doctor, how could it be that you have contaminants on the strip but the negative control doesn't show any foreign DNA?

DR. GERDES: Well, this is--is well-known, and has been described in the national research council and obviously I have observed it in my review of the strips from the LAPD, and it basically has to do with the fact that when you have contamination and it is at a low level of contamination, you can find situations where it is not necessarily going to find its way onto those--all of the control strips. So in this particular case we can see that it is present in the items but it is not present on the strip--

MR. SCHECK: So in terms of--

DR. GERDES: --the control strip.

MR. SCHECK: Would it be fair to say that in terms of these methods that just because controls are negative for one set of experiments, that doesn't mean that the specimen strips aren't contaminated?

DR. GERDES: That's true.

MR. SCHECK: You mentioned the national research council report. Do you have that book in front of you?

DR. GERDES: Yes, I do.

MR. SCHECK: That is the study "DNA technology in forensic science" from the national research council?

DR. GERDES: Yes.

MR. SCHECK: This reference that you made, would that be on page 67 or one of the places that this phenomena is mentioned?

MR. CLARKE: Objection, hearsay.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: Do you rely upon the national research council--let me direct your attention to page 67 of that document.

DR. GERDES: Okay.

MR. SCHECK: Do you rely upon this as an authoritative scientific test with respect to the issues of contamination in forensic PCR applications?

DR. GERDES: Yes.

MR. SCHECK: All right. Could I have this--shown this to counsel. Could I have this page be marked as--

THE COURT: 1296.

(Deft's 1296 for id = 1-page document)

MR. SCHECK: I show you what has been marked as 1296. Is this page, is that an accurate reproduction of the section you just referred to in your testimony as one of the conclusions of the national research council?

DR. GERDES: Yes, it is.

MR. SCHECK: All right. Your Honor, may I put that on the elmo and have the witness read it to the jury and explain it?

(Brief pause.)

THE COURT: Yes.

MR. SCHECK: Before we leave this, I'm sorry. Could you--Mr. Harris, could you mark--

MR. SCHECK: Could you direct Mr. Harris to mark the top strip which you identified as the negative control where there was no contamination, it was clean, but on these set of strips where there was nonetheless contamination of the specimens?

DR. GERDES: That would be the top one. That would be the very top strip, yes.

MR. SCHECK: Could you mark that, Mr. Harris, on the left-hand side, "NC." All right. And could we print this out as--can we leave--

THE COURT: Was that 1286-B.

MR. SCHECK: 1286-B

(Deft's 1286-B for id = printout)

MR. SCHECK: Doctor, was this the paragraph you were referring to?

DR. GERDES: Yes, it is.

MR. SCHECK: All right. Now, it says: "Moreover, it should be remembered that controls are useful for monitoring general contamination in a laboratory, not the accuracy of a particular experiment."

MR. CLARKE: Excuse me, your Honor. I'm going to enter an objection as to hearsay at this point.

THE COURT: Isn't it a little late at this point?

MR. CLARKE: I didn't realize, I'm sorry, that it was on the elmo.

THE COURT: Sustained.

MR. SCHECK: Is the national research council report in this section--are these conclusions the kind of data that DNA scientists in your field rely upon in forming conclusions with respect to scientific matters?

MR. CLARKE: No foundation.

THE COURT: Overruled.

DR. GERDES: This NRC report represents a report that was put together by a panel of respected scientists and is well-known to be the consensus opinion at the time it was published and is relied upon.

MR. SCHECK: Have you relied upon the NRC report in this particular section in forming your opinions with respect to this case and on the issue of forensic DNA typing?

DR. GERDES: It is one aspect of the foundation for my opinions, yes.

MR. SCHECK: All right. May I now display it?

THE COURT: Yes.

(Brief pause.)

MR. SCHECK: Get back. Now it says: "Moreover, it should be remembered that controls are useful for monitoring general contamination in the laboratory, not the accuracy of a particular experiment. If a blank control is positive in one experiment, it indicates a potential problem not just for that experiment, but for any experiment performed at about the same time." Now, if I could stop right there, when they use the term "Experiment," how does that relate in terms of these PCR strips? What are they referring to?

DR. GERDES: Well, each--each--you could look at it in two ways really. Each strip could be called an experiment or the entire run would be an experiment.

MR. SCHECK: So when they are saying that the accuracy of a particular set of strips or a particular experiment that one set of strips--withdrawn. When they say here: "If a blank control is positive in one experiment it indicates a potential problem not just for that experiment but for any experiment performed at about the same time," now, a blank--positive control--a blank control there, that is what we've been talking about as negative controls?

DR. GERDES: Yes.

MR. SCHECK: All right. So if a negative control is positive in a certain period when typing is done, what are they saying with respect to the potential for contamination on other sets of strips where the controls are negative?

MR. CLARKE: Objection, calls for hearsay.

THE COURT: Overruled.

DR. GERDES: They are saying that just because that one--if you have one strip that shows, or any indication of contamination, that can't be interpreted that another experiment that was done on the same day, or around the same time period even, you can't assume now that the laboratory is clean, because this is a random sporadic process. You can't automatically assume that just because the other strip is clean that the entire run that was associated with that clean strip might not be contaminated.

MR. SCHECK: And it goes to say that: "Even in a laboratory contaminated with PCR carry-over, blank controls do not necessarily become contaminated on every occasion. It would be wise to repeat all work with samples that have never been exposed to the PCR typing laboratory." Now, when they say "Exposed" what in your judgment does that mean?

DR. GERDES: Well, it means exactly what it says, and that is it can't--the sample can't--should not have even entered the doors of that laboratory.

MR. SCHECK: All right. It goes on to say: "In view of the problem of contamination due to handling and carry-over, laboratories must incorporate contamination controls into their standard operating procedures and outbreaks of contamination and the steps taken to correct the problem should be documented." Do you agree with that?

DR. GERDES: I do.

MR. SCHECK: Were your findings--

(Brief pause.)

MR. SCHECK: Referring here to 1295. Your findings as represented here on 1295 in terms of runs contaminated at the LAPD, does this represent outbreaks of contamination in your judgment?

DR. GERDES: Definitely.

MR. SCHECK: And in terms of documentation, and I bring you back here for one second to 1296-A, the Korean database with the 4 contaminant where the negative control came out blank--

DR. GERDES: Yes.

MR. SCHECK: --now, did the analysts from the LAPD record the presence of a weak 4 allele or what you are calling the contaminant allele on these strips?

DR. GERDES: The analyst recorded three of those, yes.

MR. SCHECK: So in other words--and when you were finding what you've identified as contaminants on these runs, in about what percentage of the time would the analysts from the LAPD actually write down or note on the sheet the presence of the contaminant allele?

DR. GERDES: Approximately--

MR. CLARKE: Excuse me, objection. Assumes facts not in evidence.

THE COURT: Sustained.

MR. CLARKE: No foundation.

THE COURT: Sustained.

MR. SCHECK: Well, how many times would you see in the records of these strips that the LAPD analyst would write down and identify the presence of what you are calling the extra allele?

MR. CLARKE: Same objection as to foundation.

THE COURT: Sustained.

MR. SCHECK: Well, when you looked at these sheets of paper, would you see written on it an indication of the presence of what you've called the extra allele?

DR. GERDES: Yes.

MR. SCHECK: All right. And about what percentage of the time would there be on those documents written down an indication of that extra allele?

MR. CLARKE: Objection, no foundation.

THE COURT: All right. I will allow this subject to a foundation for the source of these documents to be laid later.

MR. SCHECK: All right.

DR. GERDES: I don't recall the exact percentage, but I would say somewhere between 85 and 90 percent of the time the allele was recorded.

MR. SCHECK: All right. Now, would it be fair to say then that there was at least a record in the laboratory of what you are calling the contaminant allele?

DR. GERDES: Yes.

MR. SCHECK: All right. Was there any documentation that you saw on these sheets, these typing sheets, of recording an outbreak of contamination and did you receive any documents from them indicating steps taken to correct it.

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. GERDES: There was one occasion when it was documented in the notes that the contamination was recognized and recorded. Other than that, no.

MR. SCHECK: I am finished with this chart. Now, moving to the period of testing in this case--

THE COURT: Mr. Shapiro, would you flip that chart around, please.

MR. SHAPIRO: Yes, your Honor.

THE COURT: Thank you.

MR. SHAPIRO: You are welcome.

MR. SCHECK: Did you find--

THE COURT: All right. Have we marked this, Mr. Scheck?

MR. SCHECK: No. I'm sorry, your Honor.

THE COURT: Should be 1297.

MR. SCHECK: 1297.

(Deft's 1297 for id = photograph)

MR. SCHECK: This chart, umm--do we have--can you borrow a marker? Dr. Gerdes, this chart is entitled, "Runs and strips: Percent of contamination and/or artifact." And it indicates below "May, June and July". What year is that?

DR. GERDES: 1994.

MR. SCHECK: All right. Could you do me a favor--and I apologize for the chart making--could you write on the top of this, "May through June, 1994," right--right after it says "Artifacts."

DR. GERDES: (Witness complies.)

MR. SCHECK: Now, the period May through--I asked you to write down May through June and it has July on it?

DR. GERDES: Oh.

THE COURT: Well, he did what you asked.

MR. SCHECK: Well, I'm an idiot. Let the record reflect I have corrected it to July.

MR. SCHECK: Now, Dr. Gerdes is May through July, 1994, the period bracketing the testing done in this case?

DR. GERDES: It is.

MR. SCHECK: All right. And did you see essentially the results consistent with your overall findings of contamination in the laboratory during this period?

DR. GERDES: Yes. The contamination persists through that period.

(Brief pause.)

MR. SCHECK: I would like to mark this--what would it be?

THE COURT: 1298.

MR. SCHECK: 1298.

(Deft's 1298 for id = chart)

MR. SCHECK: And this chart is entitled, "Percent of contamination by control May through July, 1994." Now, Dr. Gerdes, what does this chart represent?

DR. GERDES: In this particular chart we look at the negative controls and ask the question where do we find contamination in those, and you will recall those particular controls would have no dot at all, no indication of DNA, because they--they represent negative controls, meaning no DNA control.

MR. SCHECK: Now, you indicated that there are two kind of negative controls used at the LAPD. One extraction controls and the other one negative amplification controls?

DR. GERDES: Yes.

MR. SCHECK: All right. And this chart represents--is it your finding that 10 out of 25 negative amplification--extraction controls were contaminated during the period May through July of 1994?

DR. GERDES: Yes.

MR. SCHECK: And no zero of 7 or no negative amplification controls were contaminated?

DR. GERDES: That's correct.

MR. SCHECK: Now, what does that indicate about the source of the contamination or what phase of the DNA testing process would be the source of the contamination based on these findings?

MR. CLARKE: Objection, no foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: All right. What--what is the--at what phase of the DNA testing process would there be contamination in an extraction control?

DR. GERDES: The extraction control is a--as you recall, is where the analyst will use a control swab or a piece of cotton cloth and then go through the entire manipulation and DNA extraction procedure, so it is going to be a control that will detect human DNA that shouldn't be there during that manipulation stage and during the DNA extraction stage.

MR. SCHECK: So would it be fair to say from your findings in the period of May through July of 1994 that the contamination in the controls was occurring during the sample handling and extraction phase of that process?

DR. GERDES: That's correct.

MR. CLARKE: I'm sorry, objection. No foundation, calls for speculation.

THE COURT: Overruled.

(Brief pause.)

MR. SCHECK: Now, Dr. Gerdes, in your review of other forensic laboratories have you made assessments of the existence or nonexistence of contamination?

DR. GERDES: I have.

MR. SCHECK: In any of the 23 laboratories whose work you've reviewed and the seven laboratories that you visited, based on the data you have seen, have you seen any--how does the LAPD rate in terms of levels of contamination?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. In looking at other laboratories what data have you had to assess the existence or nonexistence of contamination?

DR. GERDES: I have had these--the strips for the instant case that I was looking at, plus the controls that were run around that time.

MR. SCHECK: Have you in other labs seen more than just that?

DR. GERDES: In some laboratories, yes. Specifically in Cellmark and in association with this case and at the Department of Justice in association with this case.

MR. SCHECK: All right. And in terms of looking--in terms of that data, compared to the extent of contamination you saw in those laboratories, and the extent of contamination at LAPD, how does the LAPD rate?

MR. CLARKE: Same objection; no foundation.

THE COURT: Sustained.

MR. SCHECK: Did you detect contamination at some levels in other laboratories?

DR. GERDES: Yes.

MR. SCHECK: All right. Was it at the level that you found at the Los Angeles Police Department?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Well, let's try it this way: In your judgment how serious is this problem of contamination that you found at the Los Angeles Police Department?

DR. GERDES: It is extremely serious.

MR. SCHECK: In terms of speaking as a DNA laboratory director, in terms of the standards used by accrediting groups such as the national marrow donor program, what action would be taken concerning a laboratory that had the level of contamination you found at the LAPD?

MR. CLARKE: Objection, no foundation. No foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Are you familiar with organizations used by the donor bone marrow to assess contamination?

DR. GERDES: Yes.

MR. SCHECK: DNA laboratories that use PCR techniques?

DR. GERDES: Yes.

MR. SCHECK: All right. By those standards are there remedies that accrediting agencies use when they find contamination or other quality assurance problems in laboratories?

DR. GERDES: Yes.

MR. SCHECK: What are those remedies?

DR. GERDES: They would shut the lab down with this level of contamination.

MR. SCHECK: Now, is the LAPD, in terms of levels of contamination, worse than any other forensic laboratory you've ever seen?

DR. GERDES: Definitely, by far.

MR. SCHECK: Now, you refer to the validation--I would like to put on the elmo then 1181-A. All right. If you recall, is this the statement concerning PCR method validation training record from the LAPD?

DR. GERDES: Yes, it is.

MR. SCHECK: And I call your attention to the statement: "Every validation sample either gave the expected typing result or no typing results were observed. At no time was an incorrect typing result observed." All right. Now, did you find, looking at the validation sample run and comparing it to the chart of known typing results, that they were not the ones expected?

DR. GERDES: Yes, I did.

MR. SCHECK: In how many instances?

DR. GERDES: Five.

MR. SCHECK: Well, with respect to the--did you find--how many errors did you find overall in validation studies and proficiency tests?

DR. GERDES: Five.

MR. SCHECK: Five. Could you briefly indicate what those are, when those occurred?

DR. GERDES: Yes. I will have to refer to my notes.

MR. SCHECK: Please do.

DR. GERDES: (Witness complies.) Yes.

MR. SCHECK: Please go ahead.

DR. GERDES: Okay. On May 25, 1994, there was a hair shaft, had a type recorded as a 2--recorded as a 1.2, 2 and the hair was a 2, 3 hair, so that is an incorrect type. On 9/21/93 there was a vaginal swab standard. The type anticipated was a 1.2, 1.3. It was typed a 1.2, 4, so that is an error. Again on 9/9/93 there was that same standard and it should have been typed a 1.2, 4, and it was--no, excuse me. It should have been typed a 1.2, 1.3, and it was typed as a 1.2, 4.

MR. SCHECK: Before you move on, I show you--

MR. CLARKE: I'm sorry, your Honor, I haven't seen this.

MR. SCHECK: I'm sorry, I showed it to you before. This is what has previously been marked as 1181-C.

(Brief pause.)

MR. SCHECK: Why don't I just show you 1181-C, d, e and 1183.

(Brief pause.)

MR. SCHECK: Is one of those sheets that you have just identified for us--you recall the testimony of Mr. Yamauchi with respect to a particular typing he did on one of these validation studies?

DR. GERDES: Yes, I do.

MR. SCHECK: All right. Is one of the errors that--one of the typings that you are calling as an error, was one of those performed by Mr. Yamauchi?

DR. GERDES: Yes, it is.

MR. SCHECK: All right. Could you identify which of those exhibits represents that particular typing?

DR. GERDES: It is exhibit 1181-C.

MR. SCHECK: All right. Is that the one that you were just referring to in your notes?

DR. GERDES: Yes.

MR. SCHECK: Could we bring that back.

MR. SCHECK: Could you identify for us which of those is the incorrect typing?

DR. GERDES: It is the second strip down, 19-2 item.

MR. SCHECK: And what--and the typing there is recorded as a 1.2, 4?

DR. GERDES: Correct.

MR. SCHECK: For this experiment fraction?

DR. GERDES: Correct.

MR. SCHECK: And what should it be?

DR. GERDES: It should be a 1.2, 1.3.

MR. SCHECK: Okay. You consider that an error?

DR. GERDES: I do.

MR. SCHECK: Now, could you please go on and finish your description of the errors in typing that you observed.

DR. GERDES: Yes. On 7/15/93 there was a reference blood sample that was typed in error as a 1.3, 4 when in reality it was a proficiency sample that should have been a 1.2, 4. And again on 7/14/93 that same reference blood sample was again typed as a 1.3, 4, when it should have been a 1.2, 4.

MR. SCHECK: Now, did you, when compiling--I'm sorry. The analysis that you've been describing for us, did you compile a table with a description of each of the strips you were examining and the typing for purposes of putting together these charts?

DR. GERDES: Yes, I did.

MR. SCHECK: All right. And did you turn those over to us for us to turn them over to the Prosecution?

DR. GERDES: Yes, I did.

MR. SCHECK: All right. And that chart--you initially entitled that chart what?

DR. GERDES: Umm--

MR. SCHECK: Or that table of data?

DR. GERDES: I don't have the original in front of me. I believe it was "LAPD DQ-Alpha contamination events" or something of that --

MR. SCHECK: At some point recently did you just change the title of that chart?

DR. GERDES: Yes, I did.

MR. SCHECK: What did you change it to?

DR. GERDES: I changed it to "LAPD DQ-Alpha unexpected alleles."

MR. SCHECK: And why did you do that?

DR. GERDES: Because this is my raw data and it really does include that 7.9 percent of the 1.1's for instance that could be explained as DX and I--my strategy in doing this was to simply record all additional dots that should not be there, this is my raw data, and then to go back to that and analyze the data later. So it was mis--it was not correctly titled and the fact that those--that minor percentage of 1.1's that could have been explained as DX are on this table.

MR. SCHECK: Now, in--with respect to the errors, when you were compiling that table and reviewing it before you came here to testify, did you make another change with respect to errors?

DR. GERDES: Yes.

MR. SCHECK: And could you explain that to the jury?

DR. GERDES: Yes. Originally there was a hair shaft which was from a hair of a 1.2, 1.3 type and it was called a 1.2, 4, which is an error. However, in the typing of that strip it was recorded by the analyst that there was no C dot and I felt I could see a C dot and that is why I recorded it as an error, but in fact since the analyst recorded no C they would not have interpreted that as an interpretable result and I decided to not call it an error because they would not have reported it if they didn't feel they saw the C dot.

MR. SCHECK: Okay. Now, do you think it is a problem, Dr. Gerdes, for a DNA laboratory not to recognize that it has contamination in its laboratory?

DR. GERDES: Definitely.

MR. SCHECK: Do you think it is a problem for a DNA laboratory not to recognize when it is making errors in its own validation study?

MR. CLARKE: Objection, assumes facts not in evidence.

THE COURT: Sustained.

MR. SCHECK: I would like to turn now to the procedures that were used for the collection and handling and processing of samples in this case. And your Honor, what I would like to do is go back to a set of slides that we used previously that are marked as 1149-A that I have shown to Mr. Clarke entitled "Cross-contamination factors."

THE COURT: Proceed.

MR. SCHECK: Could we have the first slide, Mr. Harris.

(Brief pause.)

MR. SCHECK: Now, did you identify certain procedures for the collection, handling and processing of samples by the Los Angeles Police Department that in your opinion created risks of cross-contamination and error?

DR. GERDES: I did.

MR. SCHECK: All right. Let's turn to 1159-B. Now, do you recall the testimony in this case where Mr. Fung and Miss Mazzola put wet blood swatches in plastic bags?

DR. GERDES: I recall that.

MR. SCHECK: And in your opinion is putting wet blood swatches in a plastic bag in the fashion that they described they did it in this case--what consequences can one expect from the point of view of microbiology and molecular biology?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: The--you are placing a wet--a highly enriched material in a plastic bag at an elevated temperature on that particular day, which is the perfect environment for bacteria to grow, and so you are encouraging, under those circumstances, the growth of the bacteria, and the bacteria are going to grow and just eat the DNA.

MR. SCHECK: When the bacteria eat the DNA, is that sometimes called degradation?

DR. GERDES: Yes.

MR. SCHECK: And that can, as represented in this logo, if we assume that the one represents the DNA type of the blood on that specimen, would that arrow and that arrow represent the bacteria eating away at it? All right?

DR. GERDES: Yes.

MR. SCHECK: Is that a fair description of the process we are talking about?

DR. GERDES: Yes.

MR. SCHECK: In your opinion was--was there a serious risk of degrading the Bundy blood drop samples, LAPD items 47, 48, 49, 50 and 52 by the way that they were put in plastic bags in this case?

MR. CLARKE: Objection, no foundation, also leading.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: What effect do you believe putting the blood swatches in the plastic bags and then putting them in the truck and then seven hours later after their collection finally removing them and putting them in test-tubes, what effect, in your opinion, would putting them in the plastic bag for that period have?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: Are you familiar with the testimony of Mr. Fung and Miss Mazzola that they collected these samples starting at around 11:30 on June 14th, put them in plastic bags, put them in the evidence truck and then later at about 6:00 in the evening finally began the process of removing the wet swatches from the plastic bags and putting them in test-tubes?

MR. CLARKE: Objection, misstates the evidence.

THE COURT: Overruled.

DR. GERDES: Yes, I'm familiar with that.

MR. SCHECK: All right.

MR. SCHECK: In your opinion, what effect--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: I'm sorry, June 13th.

DR. GERDES: June 13th.

MR. SCHECK: What effect would putting the wet blood swatches in the plastic bag, in your opinion, have in terms of bacterial degradation?

MR. CLARKE: I'm sorry, objection. Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right.

THE COURT: Excuse me, counsel. The problem is the foundation as far as criminology, collection of evidence, his familiarity with the techniques, et cetera. That is the problem.

MR. SCHECK: Dr. Gerdes, you got your Ph.D. in microbiology?

DR. GERDES: Yes.

MR. SCHECK: All right. Could you explain to us what a microbiologist does in terms of collecting organisms in a field setting?

DR. GERDES: Well, a microbiologist is familiar with collection techniques for whatever specific bacterium or whatever organism they work with.

MR. SCHECK: All right.

DR. GERDES: So it is a fundamental part of microbiology.

MR. SCHECK: And does your background in microbiology serve as part of your basis for your opinion about the effects that putting these blood swatches in plastic bags would have in terms of the facts of this case?

DR. GERDES: Yes.

MR. SCHECK: And based on your background as a microbiologist and a molecular biologist, what is your opinion about the effects of bacterial degradation of red swatches in a plastic bag for the period in question?

MR. CLARKE: Objection, no foundation. Request the opportunity to voir dire the witness.

THE COURT: Overruled.

DR. GERDES: The effect would be that it is going to encourage degradation and the bacteria are definitely going to grow and degrade the DNA.

THE COURT: I think that is perhaps the eighth time in this case we've heard that.

MR. SCHECK: I know, but this is the first time from a Defense witness.

THE COURT: Second time we have heard it from him today.

MR. SCHECK: Let's move on to slide 1159-E--now E. No.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Now, when DNA samples such as the swatches, the kind of red swatches you are dealing with in this case, when they are degraded, what does that do in terms of the risk of cross-contamination once they are in a DNA laboratory?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. Do you have familiarity with the processes that were used for handling the swatches in this case?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the testimony of Mr. Fung and Miss Mazzola about how they took the red swatches out of plastic bags and placed them in test-tubes on the evening of June 13th?

DR. GERDES: Yes.

MR. SCHECK: All right. Have you seen their testimony about that?

DR. GERDES: I have.

MR. SCHECK: Have you seen the evidence packaging boards that describe that?

DR. GERDES: Yes.

MR. SCHECK: All right. Have you--are you familiar with their testimony with respect to the next day taking the blood swatches out of the tubes and scraping them with a pipette, putting them in the white papers that they call bindles, folding them up?

DR. GERDES: I am familiar with that.

MR. SCHECK: Are you familiar with how they then put those bindles into coin envelopes?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the testimony of Mr. Yamauchi as to what he did on the morning of June 14th, starting at around 9:00 A.M. through 11:20 A.M. when he processed the reference sample of Mr. Simpson, the Rockingham glove and the Bundy swatches, 47, 48, 49, 50 and 52?

DR. GERDES: I am familiar with that.

MR. SCHECK: Have you reviewed that testimony?

DR. GERDES: Yes.

MR. SCHECK: Now, if one were to assume that the Bundy samples, that is, the swatches 47, 48, 49, 50 and 52 were degraded, would that increase the risk of cross-contamination?

MR. CLARKE: Objection, assumes facts not in evidence, also lack of foundation.

THE COURT: Sustained.

MR. SCHECK: Well, assumes facts not in evidence. In your opinion, sir, in terms of the handling of samples in a DNA laboratory, are there problems when one is handling degraded samples with low amounts or no DNA at the same time or period or location when handling samples with high contents of DNA.

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: Yes, there definitely are problems under those circumstances.

MR. SCHECK: And is that a situation which increases the risk of cross-contamination?

DR. GERDES: Yes.

MR. SCHECK: And why is that?

DR. GERDES: Well, I also believe at the very beginning of my testimony I described the fact that if you have something in high concentration next to something in low concentration there is a greater chance that you can get small amounts of material from the substance with high concentration into the one with low, and so there is a greater risk of that kind of cross-contamination because you are handling the two at the same time next to each other.

THE COURT: And the nodding of the jurors indicate that they recollect that from this trial, too, and they recollect it from a month ago.

MR. SCHECK: Well, it was a month ago. All right.

MR. SCHECK: Now, are there rules or practices, to your knowledge, in the various protocols for handling samples in forensic labs in other DNA laboratories with respect to handling a reference sample in the same location and in the same period as evidence samples?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: Yes, there are definite protocols for that.

MR. SCHECK: And what are those protocols and what is your understanding of those practices? What are the rules?

DR. GERDES: The rules are that you never handle a reference sample at the same time as any evidence.

MR. SCHECK: Now, when you say "At the same time," what are we talking about? Are we talking about--could you please describe that.

DR. GERDES: It means in the--at the same--the same time.

MR. CLARKE: I'm sorry?

DR. GERDES: In terms of--

MR. CLARKE: Objection, calls for speculation.

THE COURT: Overruled.

DR. GERDES: Well, "Same time" means in the same setting I guess is the way I would describe it, and that doesn't mean that it is in a sequence of events. It means that you don't have--you have a separation in time by a matter of a span of at least, you know, twenty minutes or a half an hour. There is no really exact time period, but the way it is described in these protocols, is that you handle the reference sample, you put it away, you bleach down, you totally clean up, you allow a period of time and then you can handle evidence.

MR. SCHECK: In your experience in reviewing the practices at the Cellmark laboratory, how do they handle reference samples and evidence samples?

DR. GERDES: They were handled at the same time.

MR. SCHECK: I'm sorry?

DR. GERDES: At the same time. They were handled at the same time, reference and evidence.

MR. SCHECK: Now, what is their current practice?

DR. GERDES: The LAPD?

MR. SCHECK: No, I'm talking about Cellmark.

DR. GERDES: Oh, Cellmark, excuse me. Cellmark never handles reference samples and evidence at the same time.

MR. SCHECK: How do they do it?

DR. GERDES: I--

MR. SCHECK: Separate it by how much a period?

DR. GERDES: In prior cases when I have inquired of their criminalist, it would be the closest--

MR. CLARKE: I'm sorry, objection. Calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: All right. Are you familiar with--do you know, according to their protocol--withdrawn. Let's get back to LAPD. Are you familiar with the testimony of Mr. Yamauchi that at about nine o'clock--well, let's take care of all foundation items. Are you familiar with the serology item description notes which are 1185, I have shown them to Mr. Clarke, of Mr. Yamauchi for June 14th and June 15th, his notes of handling the samples?

DR. GERDES: Yes.

MR. SCHECK: All right. Are you familiar with his testimony that between the period of 9:00 A.M. and 11:20 A.M. he handled Mr. Simpson's reference sample and created a fitzco card?

DR. GERDES: Yes.

MR. SCHECK: He moved next to the Rockingham glove, did a series of pheno tests and cuttings and initialed that glove?

DR. GERDES: That's correct.

MR. SCHECK: Took samples? And then moved on to do the so-called Bundy blood drop items, 47, 48, 49, 50 and 52? Are you familiar with that?

DR. GERDES: I believe the order was 52 and then the others, but the exact sequence is different than what you stated, but they were done.

MR. SCHECK: They handled the Bundy blood drops all within that period?

DR. GERDES: Yes, they did.

MR. SCHECK: Now, in your judgment was--what is your opinion of this laboratory practice of handling Mr. Simpson's reference tubes in the way Mr. Yamauchi described it and these evidence samples within that period?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: That is not an acceptable practice in any forensic laboratory.

MR. SCHECK: Why?

DR. GERDES: Because of the unacceptable risk of contamination from the reference sample which has high levels of DNA and the evidence items that were processed which have low levels.

MR. SCHECK: Now, do you recall that section of Mr. Yamauchi's testimony where he describes that he opened Mr. Simpson's reference sample and blood came out of the tube that went through the chem wipe and onto his glove?

DR. GERDES: Yes, I recall that.

MR. SCHECK: Now, in your experience when you open one of these vacutainer tubes, what happens or what happened?

DR. GERDES: Well, you can hear--

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: It is a vacutainer. That means it is under vacuum. It is sort of like opening a coffee can, you can hear it and there is an aerosol that is created.

MR. SCHECK: When you say "Aerosol" what do you mean?

DR. GERDES: Aerosol is very small fine mist of droplets that would then spray.

MR. SCHECK: That is of blood?

DR. GERDES: Of blood in this case, yes.

MR. SCHECK: And is in--in terms of the DNA content of a reference tube and that aerosol, how does it compare--what is the nature of the DNA content of--of such a substance?

DR. GERDES: Well, it doesn't take very much blood to have a substantial amount of DNA.

MR. SCHECK: Now, you read Mr. Yamauchi's testimony where you indicated that after he opened the reference tube and the blood went through his chem wipe and went onto his glove that he then disposed of the gloves, he can't recall, either in the evidence processing room or in the serology lab?

DR. GERDES: That is what I remember, yes.

MR. SCHECK: All right. Now, given the nature of his testimony about the way he opened the tube, do you think that what he did next in terms of moving onto the analysis of the other sample was an acceptable laboratory practice?

DR. GERDES: No. I mean, you know, you've had a spillage, you should have basically stopped everything, cleaned down the entire lab and waited for a period of time before you move on to something as critical as evidence items.

MR. SCHECK: All right. Now, the--are you familiar with Dr. Cotton's testimony with respect to the Cellmark and the California association of crime lab directors proficiency study?

DR. GERDES: Yes, I am familiar with that.

MR. SCHECK: And are you familiar with her testimony with respect to how that laboratory got a false positive--false positive errors?

DR. GERDES: Yes.

MR. SCHECK: Do you think that that has any particular application to this situation we are talking about here, the way Mr. Yamauchi handled Mr. Simpson's reference samples and these samples on the morning of June 14th?

MR. CLARKE: Objection, no foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Are you familiar with the--have you read Dr. Cotton's testimony with respect to the CACLD study?

DR. GERDES: Yes, I have.

MR. SCHECK: Have you looked at literature and letters with respect to the results of that study?

DR. GERDES: Yes, I'm familiar with it.

MR. SCHECK: Is that study discussed in the NRC report?

DR. GERDES: It is discussed in the NRC report.

MR. SCHECK: All right. Now, what is it about Dr. Cotton's testimony and her description of these events that you think has application here.

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. CLARKE: Also irrelevant.

THE COURT: Sustained.

MR. SCHECK: Can--is it your understanding that Cellmark made a false positive error even though there were witnesses in the room looking at the transfers?

MR. CLARKE: Same objection, same grounds.

THE COURT: Sustained.

MR. SCHECK: Now, could you please describe, just in simple practical terms, why you have stated that Mr. Yamauchi's practices between nine o'clock and 11:20 in handling Mr. Simpson's reference sample, the Rockingham glove and the Bundy blood drops, how in practical terms could that cause cross-contamination?

MR. CLARKE: Objection, lack of foundation.

THE COURT: Overruled.

MR. CLARKE: Also asked and answered.

THE COURT: Overruled.

DR. GERDES: Yes. I mean when you are--you are handling this blood specimen first and it has been admitted that there was a spillage. Now there is blood on the table, there is an aerosol in the air. Now, just as a hypothetical, Mr. Yamauchi has--we have seen his notes. He was obviously writing with a pen. He may have gotten a little blood on that pen, then he walks to the other end of the bench carrying the pen.

MR. CLARKE: I'm sorry, I'm going to object based on speculation, your Honor.

THE COURT: Sustained.

MR. CLARKE: Motion to strike also.

THE COURT: The answer is stricken. The jury is to disregard it.

MR. SCHECK: Let me put it to you this way: In the process of handling DNA samples are mistakes made in terms of cross-contamination that the analyst does realize?

MR. CLARKE: Objection, lack of foundation.

THE COURT: Overruled.

DR. GERDES: Yes.

MR. SCHECK: I call your attention to page 89 of the NRC report and I would like to have this marked as--what is the next in order?

THE COURT: 1299, I believe--I'm sorry, what page, counsel?

MR. SCHECK: Page 89 and I am at 1299.

THE COURT: 1299.

MR. SCHECK: I'm sorry.

THE COURT: 1299.

MR. SHAPIRO: 99.

(Deft's 1299 for id = photograph)

MR. SCHECK: Do you see a--do you agree and would you rely upon the statements at page 89 in formulating your opinions about this case?

DR. GERDES: Yes.

MR. CLARKE: Excuse me, objection. Hearsay as phrased.

THE COURT: Overruled. Not as phrased. What paragraph are you talking about?

MR. SCHECK: It is the first sentence and the beginning of the second paragraph.

MR. SCHECK: Dr. Gerdes, do you agree with the observation of the NRC there that--

MR. CLARKE: Excuse me. Objection, hearsay.

THE COURT: Overruled.

MR. SCHECK: --"Laboratory errors happen even in the best laboratories and even when the analyst is certain that every precaution against error was taken."

DR. GERDES: I agree with that.

MR. SCHECK: Now, are you familiar--your Honor, this is a chart entitled 1196, Mr. Yamauchi's diagram of the blood found at Rockingham. Now, Dr. Gerdes--

THE COURT: All right. Dr. Gerdes, just take a half a step back, please. Thank you.

DR. GERDES: (Witness complies.)

MR. SCHECK: Dr. Gerdes, are you familiar with Mr. Yamauchi's testimony that after handling Mr. Simpson's reference tube, opening it up, that he--creating the fitzco card, that he moved to the analysis of the Rockingham blood?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed his notes as to the parts of the glove that he manipulated?

DR. GERDES: Yes.

MR. SCHECK: And you are familiar with his testimony as to the initialing that he did in the wrist area of the glove?

DR. GERDES: Yes.

MR. SCHECK: The sample, the cutting, the pheno testing and the spot checks control that he did on the inside palmar surface and the back side of the glove?

DR. GERDES: Yes.

(Brief pause.)

MR. SCHECK: Your Honor, this is Prosecution's 272-A entitled "Rockingham glove results," a series of pictures.

MR. SCHECK: Dr. Gerdes, are you familiar with the results obtained by the Department of Justice using the D1S80 PCR system obtaining results consistent with Mr. Simpson's 24, 25 genotype to a section near the wrist area entitled here G10, a section in the area depicted here as G11--G11 and a section indicated on the inside surface near the notch, G13?

DR. GERDES: Yes.

MR. SCHECK: All right. Given the manipulations that Mr. Yamauchi performed on the glove as depicted in his notes and the DNA test results from the amounts of DNA in that D1S80 system, in your opinion could they be the result of sample handling error?

MR. CLARKE: Objection, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: All right. Is it consistent with this DNA result that given the amounts of DNA in the D1S80 system that cross-contamination could have occurred in the areas marked G10, G11 and G13?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Is it a good laboratory practice to have proceeded from handling the reference sample under the circumstances described by Mr. Yamauchi and turn to manipulation of the wrist area of the glove in the fashion that he described?

MR. CLARKE: Objection, asked and answered.

THE COURT: Overruled.

DR. GERDES: No. It represents unacceptable risk of cross-contamination.

(Brief pause.)

MR. SCHECK: Incidentally, are the amounts for G10, G11 and G13 on the D1S80 system, the amounts of DNA found in those areas, are those amounts consistent with cross-contamination from small amounts of blood?

MR. CLARKE: Objection, no foundation, also calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Are the amounts of DNA on the D1S80 results there within the nanogram range between two, three, nanogram range as reflected on the DOJ typing results?

MR. CLARKE: Same objection, same grounds.

THE COURT: Overruled.

DR. GERDES: The total amount of DNA there is--I don't remember exactly the amount, but the point is that is a mixture, and in a mixture you can't really tell what proportion of the mixture is truly from one contributor or another, although the D1S80 typing result consistent with Mr. Simpson appears to be a minor contributor and that is consistent with the possibility of cross-contamination.

MR. SCHECK: Now, could we have 1159-C.

(Brief pause.)

THE COURT: I think I'm going to order that Mr. Harris not leave the courtroom while we are in session, and Mr. Cochran, it is so ordered.

MR. COCHRAN: I think he was getting some charts, your Honor, I believe.

(Brief pause.)

THE COURT: That is an order, Mr. Harris.

MR. SCHECK: Is it a good laboratory practice to handle in the same period in the same location samples that have high DNA content and low DNA content?

MR. CLARKE: Objection, asked and answered.

THE COURT: Sustained I think we have visited that topic now for the third time.

MR. SCHECK: All right. Well, let's move to the next one.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: One question. Is it a good laboratory--well, maybe not one. Is it a good laboratory practice, sir, to handle in the same period in the same location samples from different scenes?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: No, it is not.

MR. SCHECK: All right. Are you aware that on June 15th Mr. Yamauchi handled samples from--that included the reference sample from Nicole Brown Simpson, the reference sample from Ronald Goldberg, samples from the Bronco and samples from the Rockingham foyer LAPD item no. 12?

MR. CLARKE: Objection, beyond the scope of this witness' expertise.

THE COURT: Overruled.

DR. GERDES: Yes, he handled those at that time.

MR. SCHECK: And of course on June 14th he handled the Rockingham glove and the Bundy swatches?

DR. GERDES: Correct.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Is it a good idea to handle reference samples from suspects and victims in the same period and in the same location?

MR. CLARKE: Objection, beyond the scope of this witness' expertise.

THE COURT: Overruled.

DR. GERDES: No, it is not a good idea because of again the risk of cross-contamination.

MR. SCHECK: Let's move to 1159-G.

MR. SCHECK: In terms of forensic or clinical laboratory practice or any kind of practice in DNA laboratories, is it a good idea to handle many samples at the same time in a rush?

MR. CLARKE: Well, objection, argumentative.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. CLARKE: Assumes facts not in evidence.

MR. SCHECK: Handle many samples at the same time?

MR. CLARKE: Facts not in evidence as to the question.

THE COURT: Rephrase.

MR. SCHECK: Is it a good idea to handle as many as twenty samples in a short period of time?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. You've heard the testimony about how Mr. Yamauchi sampled and then proceeded to test on June 14th twenty individual samples?

DR. GERDES: Yes.

MR. SCHECK: All right. Does that seem to you, in terms of ordinary laboratory practices--well, in your opinion, what do you think about handling all those samples in the time period he described?

DR. GERDES: It seems to be a lot of samples for that time period.

MR. SCHECK: All right. Let's turn to 1159-H. Now, you've heard testimony with respect to the practices of the LAPD crime laboratory personnel, Mr. Fung, Miss Mazzola and Mr. Yamauchi with respect to changing gloves. Are you familiar with that?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, as a microbiologist and DNA laboratory director do you believe that analysts handling blood samples should routinely change their gloves between handling each item?

DR. GERDES: Yes, I believe they should do that.

MR. SCHECK: And why?

DR. GERDES: Especially with a technique like PCR. This is such a sensitive technique you might not even notice that you have a small amount of blood or even an aerosol of that blood on your glove, and unless you change the glove you can't eliminate the possibility that you might transfer that to the next sample.

MR. SCHECK: Now, in terms of laboratory paper, are you familiar with the testimony of Mr. Fung and Miss Mazzola that when the samples were brought into the LAPD laboratory and they were taken out of the plastic bags and put into the test-tubes that they did not change laboratory paper between handling those items?

DR. GERDES: I'm familiar with that.

MR. SCHECK: Are you familiar with their testimony that when they took the swatches out of the tubes the next morning and scraped them out with a pipette on to a bindle that they did not change the laboratory paper between each item?

DR. GERDES: I'm familiar with that.

MR. SCHECK: In your opinion are those sound laboratory practices in terms of the danger of cross-contamination?

DR. GERDES: That is going to create a shower of an aerosol which is going to fall down on that entire area and can easily be transferring DNA from one item to another.

MR. SCHECK: In terms of aerosols then, since that is one of our little logos, I take it--what was that you were saying about scraping the swatches out of the tubes?

DR. GERDES: Yes. That is going to flake the DNA and it is going to fall down on that area and it is not going to fall down right down straight onto the bindle. It is going to fall in that entire area.

MR. SCHECK: We've heard some questions being asked in this trial such as you heard them, "Can DNA fly?" Have you heard that?

DR. GERDES: Yes, I have.

MR. SCHECK: All right. Now, when aerosols are created of these kind of particles in a laboratory do they just fall right to the ground or how long do they remain ambient in an atmosphere?

MR. CLARKE: Objection, foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Are you familiar with the problem of dust or aerosols in DNA laboratories?

DR. GERDES: Yes.

MR. SCHECK: Is that a problem encountered in forensic as well as clinical work?

DR. GERDES: In both areas and--

MR. CLARKE: I'm sorry, objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. CLARKE: Move to strike the answer.

THE COURT: In both areas and--

MR. CLARKE: As to forensic.

THE COURT: No. Proceed.

MR. SCHECK: Are you familiar with Mr. Yamauchi's testimony that in processing the Rockingham glove and the LAPD items 47, 48, 49, 50 and 52 on the morning of June 14th, that he did not routinely change laboratory paper between those items?

DR. GERDES: Yes, I am familiar with that.

MR. SCHECK: Is that a sound laboratory practice?

DR. GERDES: It creates unacceptable risk.

MR. SCHECK: Did you conduct a tour of the laboratory at the Los Angeles Police Department?

DR. GERDES: Yes, I did.

THE COURT: Did he conduct the tour?

MR. SCHECK: I'm sorry, I should--

MR. SCHECK: Were you allowed to go in?

DR. GERDES: Yes, I was.

MR. SCHECK: And when were you allowed to go in? On how many occasions?

DR. GERDES: On two occasions; one in December of `94 and the other was in January of `95.

MR. SCHECK: Did you get to observe the evidence processing room?

DR. GERDES: Yes.

MR. SCHECK: All right. And when you went back the second time you said what date?

DR. GERDES: I believe it was January 18th.

MR. SCHECK: All right. On that occasion were you--were pictures taken?

DR. GERDES: They were.

MR. SCHECK: And who took those pictures?

DR. GERDES: There were two photographs there; one from the police department and Mark Taylor.

MR. SCHECK: And he was--

DR. GERDES: Mark Taylor was working with the Defense.

MR. SCHECK: And first let me just show you this picture.

THE COURT: Has that been previously marked?

MR. SCHECK: What are we up to?

THE COURT: I think 1300. Mrs. Robertson. 1300?

THE CLERK: Yes, your Honor.

MR. SCHECK: All right.

(Deft's 1300 for id = photograph)

MR. CLARKE: I'm sorry, could I see it, your Honor.

(Brief pause.)

MR. SCHECK: And do you recognize this to be the evidence processing room where--and that table depicted as being the area where Mr. Yamauchi testified he processed the sample on the morning of June 14th?

DR. GERDES: Yes.

MR. SCHECK: You looked around and you are familiar with that room?

DR. GERDES: I am.

MR. SCHECK: And that was part of the basis for your testimony about those procedures that we just reviewed?

DR. GERDES: That's correct.

MR. SCHECK: Now, did you go into the serology laboratory where Mr. Yamauchi and Mr. Matheson work?

DR. GERDES: Yes.

MR. SCHECK: All right. And mark this as 1301.

(Deft's 1301 for id = photograph)

MR. SCHECK: And what is that a picture of, sir?

DR. GERDES: This is a chemical fume hood.

MR. SCHECK: That is the hood in the LAPD serology laboratory?

DR. GERDES: Yes, it is.

MR. SCHECK: Could you please tell us what a laminar flow hood is?

DR. GERDES: Yes. In a laminar flow hood there is a screen along the bottom edge of the hood that draws a curtain of air down across that screen around to the back of the hood and then filters across something called a HEPPA filter and the HEPPA filter filters out microscopic particles, dust, certain bacteria and it cleans the air. So the idea behind the laminar flow hood is that there is--actually would have a window in the front that would lower down all the way down, with the exception of just enough room to stick your hands in about six inches. And then this flow of air flows across your hands and that basically forms a curtain of air that doesn't allow air from the room to get into the hood and it doesn't allow anything from inside the hood to get out and it is a hood that is frequently called a biosafety cabinet and the reason for that is it protects the analyst from being infected with--if there is an infectious agent, so in microbiology or virology we use these to protect an individual from being exposed to a dangerous agent they are working with. The other purpose of it is that it prevents anything from the outside from getting in and so the purpose of that, again from a microbiology standpoint, is you don't want things floating around on dust, such as spores or fungi, bacteria, DNA, things that attach to dust and float around, you don't want those contaminating what you are working with. Now, this hood here, the chemical fume hood, this hood was designed for the purpose of drawing fumes away from a chemist, so if they are working with something that has a noxious smell or something that has--can be toxin in terms of breathing that in, this hood is designed to pull air from the room into a hood and up an exhaust vent that goes out to the outside of the building. So the purpose of this is to draw air out of the room, through the hood and then out of the building and therefore pull the fumes away from the individual who is working.

MR. SCHECK: Sorry.

DR. GERDES: So they are two different purposes.

MR. SCHECK: Now, let me just show you two other pictures that we will mark as 1302 and 1303 of the area around this hood.

(Deft's 1302 for id = photograph)

(Deft's 1303 for id = photograph)

(Brief pause.)

MR. SCHECK: What is that?

DR. GERDES: This is the work stations that are directed--that are found directly across the room from the hood that we just saw a picture of.

MR. SCHECK: This is in the LAPD serology unit?

DR. GERDES: In the LAPD serology lab.

MR. SCHECK: And what does this picture show? That was 1302, your Honor. This is 1303.

DR. GERDES: This is looking--you can see those lab coats on the work stations there looking back again across the room and the hood is located about halfway down the room there.

MR. SCHECK: Could we just direct an arrow toward the hood so we can point it out?

DR. GERDES: There is a hood right here, (Indicating).

MR. SCHECK: Okay.

DR. GERDES: This would be the work stations across, (Indicating).

MR. SCHECK: Just move the arrow to the right.

DR. GERDES: Right there, (Indicating).

MR. SCHECK: To the left, to the left, down. Yeah.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Print that.

MR. SCHECK: Now, when you are talking about air--so in other words, it is this hood in the LAPD is a chemical hood that sucks air from that whole area into that work station and up and out?

DR. GERDES: Correct. That's correct.

MR. SCHECK: Now, you've heard the testimony--withdrawn. In other forensic laboratories, as well as clinical laboratories you visited, do they use laminar flow hoods?

DR. GERDES: That is the appropriate hood to use if you are concerned about protecting an analyst and protecting specimens from microbiological contamination or DNA contamination.

MR. SCHECK: Are laminar flow hoods used in forensic labs?

DR. GERDES: Yes.

MR. SCHECK: This--knowing that you have a laminar flow hood, as opposed to a chemical hood, is this a fundamental piece of information in terms of DNA laboratory practices?

MR. CLARKE: Objection, vague.

THE COURT: Sustained.

MR. SCHECK: All right. Is it a fundamental fact, be it in terms of DNA laboratory procedures, to know if a hood is a laminar flow hood as opposed to a chemical hood?

MR. CLARKE: Objection, argumentative. Also leading.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: Have you heard the testimony or are you familiar with the testimony of Mr. Yamauchi, Mr. Matheson, that this hood is a laminar flow hood?

DR. GERDES: Yes.

MR. SCHECK: Are they correct in their statement that it is a laminar flow hood?

DR. GERDES: No.

MR. SCHECK: What does that indicate to you about the level of expertise they have in terms of DNA typing?

MR. CLARKE: Objection, argumentative.

THE COURT: Sustained.

MR. SCHECK: Did you--look at these two.

(Brief pause.)

MR. SCHECK: Did you have an opportunity to look at the refrigerator within the serology laboratory?

DR. GERDES: I did.

MR. SCHECK: All right. And did you observe there items stored by Mr. Yamauchi, case items?

DR. GERDES: Yes.

MR. SCHECK: All right. And you directed photographs be taken of that?

DR. GERDES: I did.

MR. SCHECK: All right. I would like to mark what is--I guess we are at 1304 and 1305.

(Deft's 1304 for id = photograph)

(Deft's 1305 for id = photograph)

THE COURT: All right. Mr. Scheck, five minutes.

MR. SCHECK: We also have a printout with the laminar flow hood that I would mark 1303-A.

THE COURT: Chemical hood. You see, it is an easy mistake.

MR. SHAPIRO: Chemical/laminar.

(Deft's 1303-A for id = photograph)

THE COURT: All right.

MR. SCHECK: I show you first 1305. What is that?

DR. GERDES: This is a view of Mr. Yamauchi's evidence storage shelf.

MR. SCHECK: And that is within the serology freezer?

DR. GERDES: That's correct, refrigerator.

MR. SCHECK: Refrigerator. What is 1304?

DR. GERDES: That is a close-up of the rack that was sitting there on that shelf.

MR. SCHECK: All right. Now, how should tubes, test-tubes that contain samples in a forensic lab or DNA lab, be kept?

MR. CLARKE: I'm sorry, objection. Lack of foundation.

THE COURT: Overruled.

DR. GERDES: Well, again we are concerned with transferring from one thing to another, so it just makes common sense that what you would do is put a lot of space between tubes that you are worried about transferring the material from one to the other. So every--most forensic labs would put one tube and then leave two spaces and then another tube and leave two spaces.

MR. CLARKE: I'm sorry to interrupt. Objection, lack of foundation.

THE COURT: Sustained.

THE COURT: The last part of the answer is stricken. The jury is to disregard.

MR. SCHECK: Have you seen Gary Sims at the Department of Justice stack his tubes?

DR. GERDES: Yes.

MR. SCHECK: How does he do it?

DR. GERDES: Gary Sims places the rack with one tube and then he leaves two or three spaces, another tube. He leaves plenty of space between every tube so that there is no possibility, if you go in there with your fingers or a glove, of touching one tube to the other or of the tubes touching one another.

MR. SCHECK: All right. And these are the same kind of tubes that we are talking about when you pull off the tops that you get aerosols?

MR. CLARKE: Objection, leading.

THE COURT: Sustained.

MR. SCHECK: Just two more. This is a picture of--I think we will mark this--I think we are up to 1306.

(Deft's 1306 for id = photograph)

MR. SCHECK: And 1307.

(Deft's 1307 for id = photograph)

(Discussion held off the record between the Deputy District Attorneys.)

MR. SCHECK: Well, 1306, what is this a picture of?

DR. GERDES: This is a picture of the chelex extraction solution that is used for DNA extraction and it is located in the chemical fume hood that we saw a few moments ago.

MR. SCHECK: Who directed you to this? Mr. Yamauchi?

DR. GERDES: Mr. Yamauchi.

MR. SCHECK: And could we zoom in here on the label on that bottle. Is there a date there that has some significance?

DR. GERDES: Yes, there is.

MR. SCHECK: What is that?

DR. GERDES: It is 9/12/94 is the date that is on the chemical refers to the date in which it was--it was made up, and we were visiting this laboratory on January 18th. At least these pictures were taken on January 18th, 1995. That indicates that this particular chemical has been there a number of months and has been used over and over, over those months.

MR. SCHECK: Is that a good laboratory practice?

DR. GERDES: Especially not in PCR.

MR. CLARKE: Objection, lack of foundation, also speculation.

THE COURT: Sustained. The last two answers are stricken.

MR. SCHECK: The solution here, what is it?

DR. GERDES: Chelex is a solution that is used in the DNA extraction procedure.

MR. SCHECK: Are you familiar with how the chelex solution is used in the DNA extraction procedure at LAPD according to their protocol and at other forensic labs and in other clinical labs?

DR. GERDES: Yes.

MR. CLARKE: Objection, lack of foundation.

THE COURT: Overruled.

DR. GERDES: Yes, I am.

MR. SCHECK: What does the term "Aliquot" mean?

DR. GERDES: Aliquot means taking a large bottle like this and splitting it into very small tubes so that there is a smaller amount of material, smaller solution amount in these tubes.

MR. SCHECK: How is the chelex dealt with at the Cellmark laboratory?

DR. GERDES: The chelex solution at Cellmark is made up fresh weekly.

MR. SCHECK: And you determined that when you took a tour in connection with this case?

DR. GERDES: Yes, I did.

MR. SCHECK: All right. And in your judgment is it sound laboratory practice to keep the chelex solution at least indicated here to be using it from 9/12/94 through what, January 18, `95.

MR. CLARKE: Objection, lack of foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Well, what is the terms of DNA laboratory methods? Is there a problem with using a chelex solution from the same bottle for a substantial period of time?

MR. CLARKE: Objection, unintelligible.

THE COURT: I understand it, but same objection. I think there are some people in the audience who want to step out. All right. That objection is overruled,. But it does assume facts that aren't in evidence. This particular date is subject to interpretation. There are two different ways you can interpret that date, counsel. All right. Let's take our recess at this point. All right. Ladies and gentlemen, please remember all my admonitions to you. We will be in recess for fifteen minutes. All right. Dr. Gerdes, you can step down.

(Recess.)

MR. COCHRAN: I spoke with Professor Uelmen, your Honor, and he indicated to me that he has a problem on Friday, that motion we calendared. And that motion should be parallel with our motion. Is that your understanding? With regard to the things--and he would ask that we have the motion set tomorrow afternoon. And if the People can get a response together, he proposed either Thursday afternoon or Tuesday afternoon. Friday morning was going to be bad for him.

THE COURT: My preference would be Tuesday for the simple reason I'm still working on the Bosco matter.

MR. COCHRAN: That's fine. Then we'll ask it be reset. It's now set Friday morning.

THE COURT: I can't do it while I'm sitting out here.

MR. COCHRAN: I understand, your Honor. How about Tuesday afternoon then for both motions? The People can then give us their response and the city attorney will be here and we can do it Tuesday afternoon.

MR. DARDEN: I thought they were going to rest.

THE COURT: That's what they told me.

MR. COCHRAN: Well, Judge, if we didn't have so many 402 motions for every witness we call, we might be able to rest and we're going to try to do that.

MS. CLARK: Well, if you don't call them, we won't have to make a motion.

MR. COCHRAN: Well, we insist on calling them.

MS. CLARK: All right. Can we approach sidebar without the reporter?

THE COURT: Yeah.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

MR. CLARKE: Two quick items if I might, your Honor. First is with regard to the grant proposal. Mr. Scheck informs me that's being faxed to the courtroom. And the second item relates to the Court overruling my objections about foundation on the Los Angeles Police Department scripts. It's my understanding from the Court's ruling that the Defense will then be calling witnesses or witness or witnesses to provide that foundation.

THE COURT: That's correct. I assume somebody can come in and tell us what these things are.

MR. SCHECK: I--I mean, I--they were provided by Mr. Matheson and I guess he can come in and tell us--

THE COURT: He can come in and tell us what is this stack of documents.

MR. SCHECK: I--maybe we can work out a stipulation. After all, they gave it to us.

THE COURT: Well, we've got Dr. Gerdes here.

(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 the record reflect that we've now been rejoined by all the members of our jury panel, and Dr. Gerdes is on the witness stand undergoing direct examination by Mr. Scheck. And, Mr. Scheck, you may continue to the conclusion of the Court day.

MR. SCHECK: Thank you, your Honor.

MR. SCHECK: Dr. Gerdes, let's return for a minute to 1306, the chelex bottle. Now, what role does chelex play in the DNA process? How do you use--how was it used at the Los Angeles Police Department and at other laboratories in the DNA testing process?

MR. CLARKE: Objection. Foundation.

THE COURT: Overruled.

DR. GERDES: This is the first solution that you use in the process of extracting DNA from a specimen.

MR. SCHECK: And how much does the protocol indicate should be taken out of a bottle of chelex?

DR. GERDES: It's basically a drop, very small amount.

MR. SCHECK: Uh-huh. And in terms of the amount that you take out of the bottle, does that have any relationship to the use of aliquots in terms of the way certain laboratories handle this kind of solution?

DR. GERDES: Yes. With this kind of solution where you use a very small amount of each item, you would tend to aliquot it into smaller volumes so that you don't go into that bottle a long time. The amount that's shown in this bottle is a six-month supply.

MR. CLARKE: Excuse me. Objection. No foundation.

THE COURT: Overruled.

MR. SCHECK: And why is it--why--if you went into the bottle many times in terms of contamination, does that have any consequences?

DR. GERDES: Yes. Every time you open the bottle, there's a chance of something falling in there. Every time you pipette or put a pipetter into that bottle, there's a chance of introducing something accidentally. So it goes back to the manipulation we talked about earlier. The more you manipulate things, the more you go in and out of them, the higher the risk. Every time you open, there's a risk and the more times you open it, the greater the risk.

MR. SCHECK: Have you reviewed records in connection with the hybridization sheets from the Los Angeles Police Department as to lots of chelex? Have you done that?

DR. GERDES: Yes. Yes.

MR. SCHECK: Now, up here on this particular bottle, there is a no. 5. What does that represent?

DR. GERDES: That's their lot number.

MR. SCHECK: Have you looked at lot numbers on the laboratory sheets with respect to the use of chelex at the lab?

DR. GERDES: Yes.

MR. SCHECK: And what is the frequency in general terms of how often they go to a new lot?

DR. GERDES: The lot numbers are used, the same lot numbers recorded for DNA extractions over a period of months.

MR. SCHECK: Is that a good practice in your opinion?

DR. GERDES: No.

MR. SCHECK: This is 1307. What is this a picture of, Dr. Gerdes?

DR. GERDES: This is another reagent. This particular reagent called TE buffer is used to resuspend DNA.

MR. SCHECK: And whose TE buffer is this, if we can go a little tighter on this picture?

DR. GERDES: You'll notice there's a CY on the bottle. So this is Collin Yamauchi's.

MR. SCHECK: And so this picture was taken at his work station?

DR. GERDES: At his work station, yes.

MR. SCHECK: All right. And, again, how much TE buffer is used in the course of running a DNA test?

DR. GERDES: Less than a dot. A drop.

MR. SCHECK: And is this another kind of reagent that is--ought to be aliquotted?

DR. GERDES: Yes.

MR. SCHECK: And what is the date on this particular picture?

DR. GERDES: 5-25-93.

MR. SCHECK: And when was this picture taken?

DR. GERDES: January 18th, 1995.

MR. SCHECK: Now, I'd like to show you Prosecution's 287 I believe entitled "PCR DNA typing, Los Angeles Police Department." Now, this first set of pictures under the title "Piper tech extraction," is that a picture of Mr. Yamauchi?

DR. GERDES: Yes.

MR. SCHECK: And this is the work station you were just referring to?

DR. GERDES: Yes.

MR. SCHECK: And what does this depict?

DR. GERDES: This is the area in which he would set up his DNA extractions.

MR. SCHECK: All right. Now, this is in the serology lab room?

DR. GERDES: Yes.

MR. SCHECK: And this is at the piper tech location?

DR. GERDES: Correct.

MR. SCHECK: All right. Now, in terms of designing DNA laboratories using PCR, what importance is there in terms of structuring the flow of work from the point that the sample is first taken into the lab to the end of the process?

DR. GERDES: Well, in this process, you'll recall when you start with a small amount of DNA and after you've gone through the amplification process, you end up with a very large amount of DNA. So if you can make a one-way flow so that you always go from the smaller to the larger and never back, it reduces the risk of crossover of the high amount to the low amount which we talked about a number of times. But basically by designing the laboratory in such a way that you only have a one-way flow of low DNA concentration to high and never back, it's another procedure that's used by laboratories to try and reduce the risk of contamination.

MR. SCHECK: So this first picture where it shows piper tech extraction, that takes place in the serology lab?

DR. GERDES: Yes.

MR. SCHECK: And the samples have come from that evidence processing room, the one where the garage goes up and down?

DR. GERDES: Correct.

MR. SCHECK: They go into this room, correct?

DR. GERDES: Correct.

MR. SCHECK: Now, the next picture down on the PCR DNA typing board shows pictures called "Preamplification, amplification, hybridization and photography"?

DR. GERDES: Yes.

MR. SCHECK: And those are at the Parker Center?

DR. GERDES: Correct.

MR. SCHECK: All right. Could you tell us where that is and how we get from piper tech at the extraction phase to the Parker Center for the amplification phase?

DR. GERDES: Well, Parker Center is actually located one to two miles from piper tech, a totally different building. So it's definitely separated. The amplification is set up in one room, the preamplification room. That's where the tubes and the reagents are all mixed together, and then it's amplified and hybridized in the second room.

MR. SCHECK: All right. Now, after--when you do the amplification, is that where you produce the greater amounts of DNA that's sometimes called the amplicons?

DR. GERDES: Correct.

MR. SCHECK: All right. Now, the next step here in this board indicates that "Piper tech product gel, electrophoresis." And there's been testimony that--from Mr. Yamauchi that DNA samples are then taken back to piper tech into a room where they are then put on this PCR product gel?

DR. GERDES: Correct.

MR. SCHECK: And did he walk you through that process?

DR. GERDES: Yes, he did.

MR. SCHECK: And did you observe those rooms and that setup?

DR. GERDES: Yes, I did.

MR. SCHECK: Is bringing the amplicons or the PCR product back into piper tech consistent with the process of having a one-way work flow?

DR. GERDES: No, because, you see, you've gone from low DNA and right at this step, you've created high DNA by amplifying it, and this is at a different location, totally different building. But now they turn around and they go back to this building. So they're carrying back high levels of DNA into the area where there should be only low levels of DNA.

MR. SCHECK: Are you familiar with the setup at the Department of Justice in terms of the flow of work?

DR. GERDES: Yes.

MR. SCHECK: Do you recall the testimony of Gary Sims with respect to stating that after amplification, that PCR product never leaves the amplification room in that laboratory?

DR. GERDES: Yes.

MR. SCHECK: Is that true here at LAPD?

DR. GERDES: No.

MR. SCHECK: Is this a good and sound laboratory practice?

DR. GERDES: No.

MR. SCHECK: My apologies, your Honor. I misread it. It's that board is actually 281.

THE COURT: All right. Rather than 287.

MR. SCHECK: Yes.

THE COURT: Thank you.

MR. SCHECK: Now, Dr. Gerdes, there's been substantial testimony in this case with respect to substrate controls that were used for the Bundy blood drops, LAPD items 47, 48, 49, 50 and 52.

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with that testimony?

DR. GERDES: I am.

MR. SCHECK: All right. Now, first of all, let me ask you, were any substrate controls taken from the glove that--the Rockingham glove that Mr. Yamauchi analyzed on June 14th?

DR. GERDES: No.

MR. SCHECK: All right. So would it be fair to say that substrate controls cannot be used as a check against cross-contamination with respect to that glove?

DR. GERDES: That's correct.

MR. SCHECK: Now, Dr. Gerdes, does the fact that testing of the Bundy blood drop substrate controls by LAPD, DOJ and Cellmark did not reveal the presence of DNA prove that there was no cross-contamination of these samples?

MR. CLARKE: Objection. No foundation. Outside the scope of the witness' expertise.

THE COURT: Sustained.

MR. SCHECK: All right. Are you familiar with the testimony of Mr. Sims--of Mr. Yamauchi that substrate controls were typed?

DR. GERDES: Yes.

MR. SCHECK: Did you review that data?

DR. GERDES: Yes.

MR. SCHECK: Did you review the data and the testimony with respect to what happened to those substrate controls from the time that they first arrived to the laboratory according to Fung and Mazzola, what Mr. Yamauchi did with them, where they were sent and when to Cellmark and the Department of Justice?

DR. GERDES: Yes. I reviewed all that.

MR. SCHECK: Have you reviewed that data?

DR. GERDES: I reviewed that.

MR. SCHECK: Have you reviewed the test results on the substrate controls?

DR. GERDES: Yes, I have.

MR. SCHECK: Having reviewed the data on the substrate controls, do you believe that the fact that testing on--did testing on those reveal the presence of DNA?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Did you review the laboratory work concerning tests performed on the substrate controls at LAPD, the Department of Justice and Cellmark?

DR. GERDES: Yes, I did.

MR. SCHECK: All right. What were those results?

DR. GERDES: The substrate controls appeared clean.

MR. SCHECK: All right. Does the fact that the substrate controls appear clean prove in your mind that there was no cross-contamination of the samples 47, 48, 49, 50 and 52?

MR. CLARKE: Same objection. Also speculation.

THE COURT: Overruled.

DR. GERDES: Uh, no.

MR. SCHECK: Why?

DR. GERDES: Well, there's a number of reasons. No. 1, as we mentioned earlier, in the NRC report and in my evaluation of the numerous runs at LAPD, it's not unusual to have that particular control not show a contaminant even though other items in that run had a contaminant. And you'll recall, we showed you that on the example of the 4 contamination earlier this morning.

MR. SCHECK: In terms of the substrate controls, is there something known in molecular biology and analytical chemistry that's known as carrier or stabilizer?

DR. GERDES: Yes.

MR. SCHECK: Could you describe what that is?

DR. GERDES: When one is working with molecules in very small concentrations, very small amounts, if you do this in a laboratory, you need to store them in the presence of something called a carrier. If you don't store them in the presence of something called a carrier, you just--they tend to disappear. You lose them. Things when they're too small in amounts, they can stick to the sides of a bottle. There's unknown things in that solution that they're not quite stable. You just basically tend to lose it. So if you're looking at something analytically that's in a very small concentration, it's a standard practice that you add something called a carrier. In the case of DNA, what that would mean is you would add a non-human DNA to sort of stabilize the situation such as salmon sperm DNA, and that would stabilize very small amounts of DNA so that they wouldn't disappear.

MR. SCHECK: If you would--Dr. Gerdes, let me ask you to assume that the swatches from samples 47, 48, 49, 50 and 52 were degraded by bacteria and that what was on those swatches was bacterial DNA. Do you have that in mind?

DR. GERDES: Yes.

MR. SCHECK: And that subsequent to that, those swatches and perhaps control swatches were contaminated with foreign DNA.

DR. GERDES: Yes.

MR. SCHECK: In terms of this carrier principal, what would the effect be in terms of the DNA that fell on the swatches with bacterial contamination as opposed to the blank swatches?

MR. CLARKE: Objection. Speculation. No foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: All right. Let's start with this hypothetical. Assume that you have a red swatch such as the ones used in this case and the DNA from blood on that swatch has been degraded and it's no longer human DNA, it's bacterial DNA.

DR. GERDES: Yes.

MR. SCHECK: Can that act in a way that's similar to the non-human DNA you were talking about as a carrier?

DR. GERDES: Yes, it can.

MR. CLARKE: Objection. No foundation, speculation, irrelevant.

THE COURT: Sustained.

MR. SCHECK: I think I asked this as a hypothetical, your Honor.

THE COURT: It was, but there has to be a foundation for the expertise to give that opinion.

MR. SCHECK: Dr. Gerdes, how--can you tell us more about your experience with using carrier non-human DNA and how that affects other DNA going onto that non-human DNA? How do you--what's your experience with that?

DR. GERDES: Well, one of the--you'll recall I talked about the fact that we talked--we work with this virus called cytomegalovirus. And it turns out that when we looked at that virus in transplant patients, since they're immunosuppressed, a significant percentage of those patients tend to shed that virus and it's present in their blood and you find it and in low levels. Now, the problem then became you're finding it too often. We need to identify which patient needs to be treated. So we developed a quantitative PCR, and for that quantitative PCR, I needed to develop standards that could be used as quantitative standards that were stable and could be run over and over so that I can measure the amount of CMV in the patient versus the standards. In the process of creating the standards, it became obvious that a carrier DNA was required to maintain the stability of those DNA's. Now, that's my personal experience with the specific incident. It's well known in other publications, other analytical procedures that this is a very common procedure.

MR. CLARKE: I'm sorry. Objection. Calling for hearsay.

THE COURT: Overruled.

MR. SCHECK: Now, what carrier did you use with the human DNA of the cytomegalovirus?

DR. GERDES: We use something you can purchase called salmon sperm DNA.

MR. SCHECK: Is that salmon sperm DNA commonly used as a carrier?

DR. GERDES: Yes. That why it's sold commercially for molecular biologists.

MR. SCHECK: Now, if you assume that the blood swatches in this case were degraded and consisted of bacterial DNA, could those--could that bacterial DNA act as a carrier?

DR. GERDES: Yes.

MR. CLARKE: Objection. No foundation, calls for speculation.

THE COURT: Overruled.

MR. SCHECK: And as a consequence, if you assume that bacterial DNA was acting as a carrier, would that account for cross-contamination being--showing up in greater amounts on the stained items that consisted of--under a hypothetical of bacterial DNA as opposed to the blank swatches?

MR. CLARKE: Objection. Calls for speculation.

THE COURT: Overruled.

DR. GERDES: Yes. That would explain it because on this the swatch that has nothing on it, there's no stabilizer. Therefore, you would lose the small amount of contaminant. On the swatch with the bacterial DNA, there is a stabilizer and, therefore, it would remain there.

MR. SCHECK: All right. Now, you--are you familiar with Mr. Sims' testimony with respect to his view of the role that the substrate controls played as a check against cross-contamination?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with his answers to the questions, that as far as he was concerned, the substrate controls would have to run strictly in parallel with the other stained items to be a check against cross-contamination?

DR. GERDES: Yes.

MR. CLARKE: I'm sorry. Objection. Misstates the evidence.

THE COURT: Overruled.

MR. SCHECK: What do you understand that assumption of running in parallel to mean? What does it mean to you?

DR. GERDES: Well, again, the image of transferring from one item to the next by handling it, one control for that would be when you handle something with a large amount of DNA, the next item you handle has no DNA. So if that happened, you would pick it up there. And then the next item would have DNA and then the next item would have no DNA and then the next item would have and so forth. You alternate between a sample that has DNA or should have DNA and a sample that has no DNA. So that's what's meant by running them in parallel. It's more like in series really. You have to run--alternate a sample with DNA and a sample without DNA, and that should control for this cross-transfer.

MR. SCHECK: Now, in your review of the way that the substrate controls were handled in this case, did you see evidence that they were not handled strictly in parallel in terms of how LAPD distributed them?

DR. GERDES: Yes.

MR. SCHECK: And what was that?

DR. GERDES: Well, these items at one point were sent to two other laboratories, Cellmark laboratories and Department of Justice. And this process of handling in parallel or in series, whichever you want to look at it, and as we described, that has to occur all the way from the very moment you start with an item till you get a result, and it doesn't matter what lab you do it in. It has to happen--it has to be sort of a chain of custody. It has to follow that flow at all times. When the LAPD mailed their specimens, the evidence items to both DOJ and to Cellmark, they failed to mail the controls, the substrate controls. To me, at that point, that has broken the chain of custody. The Department of Justice from the notes I have had to call to ask for specimens, the substrate specimens, and they didn't run them in parallel because they had to have packaged them at LAPD without handling the substrate control. If you think about it, if you're packing these things in a package and they're only mailing one, why would they handle it in parallel and then just not send the substrate control?

MR. CLARKE: Objection. No foundation, your Honor.

THE COURT: Overruled. But, Mr. Scheck, I'm not comfortable with the terminology of "Chain of custody" in this context.

MR. SCHECK: Let me get it this way. In your work in paternity--

DR. GERDES: Yes.

MR. SCHECK: --do you have familiarity--is the term "Chain of custody" used in terms of handling of evidence samples?

DR. GERDES: It is.

MR. SCHECK: And how does that arise?

DR. GERDES: Well, in a paternity action, obviously it's another legal action. You need to have documentation of every individual who's handled a specific item.

MR. SCHECK: And the American Association of Blood Banks regulates your paternity lab?

DR. GERDES: Yes.

MR. SCHECK: Do they have rules that incorporate the term "Chain of custody"?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with how that works?

DR. GERDES: Yes.

MR. SCHECK: And in terms of DNA laboratories generally, are rules set up for handling items of evidence to preserve their integrity for testing?

DR. GERDES: Yes.

MR. SCHECK: Are there such rules in your transplantation work?

DR. GERDES: Yes. And in clinical work, yes.

MR. SCHECK: And have you reviewed protocols of forensic laboratories that talk about ways that samples ought to be handled to preserve the integrity of evidence?

DR. GERDES: Yes.

MR. SCHECK: Now, is it important in your judgment when implementing rules--and I'm asking you this now in your capacity as a DNA lab director. How many people have you supervised--how many people work in the IID laboratory?

DR. GERDES: There's approximately 40.

MR. SCHECK: All right. And right now, specifically under you, how many technicians do you supervise?

DR. GERDES: I have four.

MR. SCHECK: And in terms of training people to--technical people to go through with the DNA process, how important is it for them to know the purpose of the procedures they're following in terms of their use as controls?

DR. GERDES: I'm sorry. Could you repeat the question?

MR. SCHECK: How important is it to train personnel about the controls that they're using and why they're using them?

DR. GERDES: It's extremely important.

MR. SCHECK: Why is that?

DR. GERDES: Well, protocols are there for a purpose and they need to be followed. That's how you standardize the testing result and that's how you guarantee it's a valid accurate result that can be relied upon. So it's important that they're trained in that protocol and that they follow that protocol.

MR. SCHECK: All right. And incidentally, in terms of--for example, does that have application in terms of the use of gloves?

DR. GERDES: Yes. All aspects of how to handle the specimens and how to set up the testing and how to interpret the testing and so forth.

MR. SCHECK: Well, is one as--is one purpose of wearing gloves to protect--the DNA laboratory to protect the handler?

DR. GERDES: Yes.

MR. SCHECK: And is another purpose to protect against cross-contamination?

DR. GERDES: Yes.

MR. SCHECK: Now, have you reviewed the testimony of Mr. Fung and Miss Mazzola with respect to their--what they knew about the purpose of the substrate controls?

DR. GERDES: Yes.

MR. SCHECK: All right. And--now, besides--so it would be fair--do you feel--withdrawn. So based on your review of the way samples were handled in terms of distributing them and the way they were--the review of the testimony here about how the substrate controls were handled, are you comfortable with the assumption that the substrate controls were run in parallel here?

MR. CLARKE: Objection. No foundation.

THE COURT: Sustained.

MR. CLARKE: Calls for speculation.

MR. SCHECK: Let me get back to it this way. In terms of the--in your review of the LAPD laboratory strips in terms of contamination, what is the significance of the degree of contamination you found in the extraction control versus the amplification control?

MR. CLARKE: Objection. Asked and answered.

THE COURT: Overruled.

DR. GERDES: The significance is that it indicates that the area at which contamination is occurring in this laboratory is an early area, most likely in the DNA extraction or sample handling.

MR. SCHECK: Now, besides your view that--about the substrate--your views about the substrate controls being handled in parallel, the fact that negative controls don't always clean negative controls don't always indicate contamination and the notion of "Carrier," do you have any evidence from review of the data that indicates that there was cross-contamination of DNA between samples handled by Mr. Yamauchi in this case?

DR. GERDES: I believe there is some indication of that.

MR. SCHECK: And does this cross-contamination show up--does this evidence show up not just in the way samples were handled at LAPD, but how they were typed then subsequently at DOJ and Cellmark?

DR. GERDES: Yes.

MR. SCHECK: Your Honor, I would like to move to another board.

(Brief pause.)

MR. SCHECK: Now, Dr. Gerdes, are you familiar with the fact that on June 15th, 1994 at the evidence processing room and at the serology lab, Mr. Yamauchi handled item no. 12, blood drops recovered from the foyer of Mr. Simpson's home and the reference sample from Nicole Brown Simpson and the reference sample from Ronald Goldman?

DR. GERDES: Yes.

MR. SCHECK: Now, on this chart, there's a--could you explain what the--

DR. GERDES: Sure.

MR. SCHECK: --code is over here?

DR. GERDES: Yeah. These indicate the typings for the three reference individuals, the DQ-Alpha and one locus, the GC locus of the polymarker gene system.

MR. SCHECK: So those represent the genotypes for the three individuals here?

DR. GERDES: Yes.

MR. SCHECK: So on the DQ-Alpha--

DR. GERDES: On the DQ-Alpha, there's a 1.1, 1.2 for Mr. Simpson, there's a 1.1, 1.1 for Nicole Brown Simpson and there's a 1.3, 4 for Ron Goldman.

MR. SCHECK: And on the GC locus and the polymarker system, what are the types for these three individuals?

DR. GERDES: On the GC locus of the polymarker gene, it's a BC for Mr. Simpson and a C for Nicole Brown Simpson and an AA for Mr. Goldman.

MR. SCHECK: Now, the next three boxes indicate something called "LAPD typing sheet," "Cellmark type sheets" and "DOJ type sheets"?

DR. GERDES: Yes.

MR. SCHECK: What are those?

DR. GERDES: These are the recorded results that were found on the typing sheets of--on those dates when these specific references were typed.

MR. SCHECK: Now, let's move first to June 15th, 1994 when Mr. Yamauchi did this initial typing. I take it he recorded for item no. 12, the blood drops found in the foyer, Mr. Simpson's genotype, 1.1, 1.2?

DR. GERDES: That's correct.

MR. SCHECK: All right. Now, with respect to the reference sample, could you tell us what was recorded and also what you observed on the sheet?

DR. GERDES: Yes. There--it was recorded as a 1.1, 1.1, and on the actual typing, I can see a very faint 1.2.

MR. SCHECK: Now, I think we have to do some exhibit marking here, your Honor. This--what are we up to as far as this board is concerned?

THE COURT: 1308.

MR. SCHECK: 1308.

(Deft's 1308 for id = board)

MR. SCHECK: I'd ask that this DNA hybridization sheet be marked 1308-A.

THE COURT: So marked.

(Deft's 1308-A for id = DNA hybrid sheet)

MR. SCHECK: And can you point out--I'm going to direct this to the--

DR. GERDES: I have to see the code to be sure.

MR. SCHECK: Please feel free to--you can approach the elmo.

DR. GERDES: Okay.

MR. SCHECK: If I may.

DR. GERDES: Now, this isn't showing up very well up on the screen, but there's a very faint 1.2 in this area (Indicating).

MR. SCHECK: Could you please just--let's see. Would you please --

DR. GERDES: Up a little higher. If you look here (Indicating), there's a shadow, and if you look on the next strip, there isn't a shadow. It's very faint, but it's distinct and there's a 1.2 right there.

MR. SCHECK: Okay. Could we print that out, please, as 1308-B?

MR. SCHECK: And, Dr. Gerdes, did you--have you reviewed typing sheets from the Department of Justice and strips and become familiar with their nomenclature with respect to traces, faint traces, very faint, hints, et cetera?

DR. GERDES: Yes.

MR. SCHECK: All right. And is that an objective or subjective set of distinctions?

DR. GERDES: Very subjective. Very subjective.

MR. SCHECK: To the best of your ability, could you do us--could you write in under "NBS reference sample" and give your--using this black pen, could you write in the genotype that you see there and what--how you would characterize it?

DR. GERDES: Based on my understanding of the testimony from the Department of Justice, I think they would characterize this as a hint of a 1.2.

MR. CLARKE: Your Honor, before that happens, I have an objection to that being marked on the board in its current form. I believe I raised that to the Court previously.

MR. SCHECK: Actually I think you ruled on this.

THE COURT: Overruled.

MR. SCHECK: Now, with respect to Mr. Goldman's reference sample, the LAPD records there a 1.3, 4; and is the term very faint 1.1 what's on their record?

DR. GERDES: It's on their report, yes.

MR. SCHECK: All right. Now--and you can see that very faint 1.1 on the strip itself?

DR. GERDES: Yes. Should I put the arrow on it?

MR. SCHECK: And so we'll call the new arrow here--

DR. GERDES: It's right here (Indicating).

MR. SCHECK: Okay. Make this 1308-C. Well, your Honor, may I--if you could, maybe the simplest way to do this is, could we go back--this was 1308-B I believe, this is the printout?

MR. SCHECK: Could we make one printout where--put "NBS" by the arrow where you're indicating the 1.2, and let's put "RG" on the right-hand side so we can identify the strips. I'm talking about the right-hand side of the strip. That one, write "NBS," and below that we'll write "RG."

(Brief pause.)

MR. SCHECK: No, no, no. That's the wrong strip. Go up one. Yeah. Is that correct, doctor?

DR. GERDES: Yes.

MR. SCHECK: Okay. Now, on the--and we'll print that out as 1308-B.

(Deft's 1308-B for id = printout)

MR. SCHECK: Now, in the DQ-Alpha system, when one has a--the 4 allele is showing and the--and there is a 1 allele there, does that mean--that means that that dot that we've indicated there--do you see in Mr. Goldman's sample there's a very dark dot that's 1.2, 1.3, 4; is that correct?

DR. GERDES: Yes.

MR. SCHECK: And that's this so-called masking problem with the 1.2 allele, correct?

DR. GERDES: That's correct, because this particular dot will detect a 1.2, 1.3 or a 4. It's not specific for the 1.2 only. So if there's a 1 dot as well, then you have to count the possibility that there is a 1.2 there if there's a 1 dot and a 4.

MR. SCHECK: Now, so in terms of Mr. Goldman's reference sample, what would that mean in terms of how you would call the existence of a 1.2?

DR. GERDES: Well, you'd have to consider the possibility at least that it masked and it might be there.

MR. SCHECK: So could you please draw there 1.2 and underneath the other box "Possible"?

DR. GERDES: Yes. (The witness complies.)

MR. SCHECK: Is that your understanding as to--

DR. GERDES: Yes.

MR. SCHECK: Okay. So from looking here at the LAPD typing sheet--now, with respect to item no. 12, is it your understanding, sir, that item no. 12 were--drops in Mr. Simpson's foyer that were the last blood drops collected on June 13?

DR. GERDES: That's correct.

MR. SCHECK: And is it your understanding that these--that item no. 12 had sufficient DNA in it to get a strong band RFLP result at Cellmark?

MR. CLARKE: Objection. Leading.

THE COURT: Sustained.

MR. SCHECK: Do you know if they got a RFLP result at Cellmark?

DR. GERDES: Yes.

MR. SCHECK: Was the concentration of the DNA in item no. 12, certainly compared to the so-called Bundy blood drops, 47, 48, 49, 50 and 52, comparatively higher?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Well, do you know if Mr. Yamauchi handled item no. 12 in the same time and location that he handled the reference samples from Nicole Brown Simpson and Mr. Goldman on June 15th?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: Yes, he did.

MR. SCHECK: All right. Would these typing results be consistent--well, what are the--with a cross-contamination of item no. 12 with the two reference samples?

MR. CLARKE: Same objection. Also calls for speculation.

THE COURT: Sustained.

MR. SCHECK: All right. What did these results indicate to you?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: These results are consistent with cross-contamination of the 1.2 from item 12 into Nicole Brown Simpson and Ron Goldman's reference samples.

MR. SCHECK: Now, what is the--in terms of the PCR process, what is "Competition"? What does that mean?

DR. GERDES: Well, if you're trying to amplify DNA from two contributors and there's a very large amount of one contributor and a small amount of the second contributor, the larger amount is going to tend to amplify faster and, therefore, it will often peak the small amount. So if they were to have fast ratios, something in high concentration with something in low concentration, most likely, the lower concentration contributor will have very weak signals.

MR. SCHECK: So aren't the reference samples for Mr. Goldman and Miss Nicole Brown Simpson, wouldn't those be by definition high concentration?

DR. GERDES: Yes.

MR. SCHECK: And yet, still you see these alleles?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of the Ronald Goldman reference sample here, this 1.1--

DR. GERDES: Yes.

MR. SCHECK: --in theory, could that be consistent with the so-called DX artifact?

DR. GERDES: That is one of those situations, as we mentioned earlier, where you have a 1 dot because of the 1.3 and then the 1.1 and now you can't determine. It could be either or. It might be DX. On the other hand, you can't really say that it isn't a contaminant either.

MR. SCHECK: But what about the 1.2 dot on Nicole Brown Simpson's reference sample? Is that an artifact or contaminant?

DR. GERDES: That's a contaminant because the 1.2 doesn't have that kind of artifact. And if you see anything on there, that means there's DNA there.

MR. SCHECK: All right. Now, let's move to the next typing of reference samples of Nicole Brown Simpson and Mr. Goldman. That was done at Cellmark on August 5th, 1994?

DR. GERDES: That's correct.

MR. SCHECK: All right. And what's written on Defense 1308, are those what Cellmark recorded on their typing sheets?

DR. GERDES: Yes.

MR. SCHECK: And first of all, were you able to observe or do you have a photograph of these strips?

DR. GERDES: I believe I do. Actually no, I don't. I have a Xerox is all I have with me of Cellmark's. No. I have the--

MR. SCHECK: You have the photo?

DR. GERDES: Now I got it. I have it.

MR. SCHECK: Can we mark this as 1308-C?

THE COURT: 1308-C.

(Deft's 1308-C for id = photograph)

MR. SCHECK: Is it 5:00 o'clock?

MR. SCHECK: Now, with respect to--these strips represent both the DQ-Alpha and what other system?

DR. GERDES: The polymarker system.

MR. SCHECK: All right. Now, what can you say about the C dots in your observation of the reference samples from Nicole Brown Simpson and Ronald Goldman?

DR. GERDES: The C dots which are specifically on the DQ-Alpha system, as you can see, are extremely light on all three references.

MR. SCHECK: Uh-huh.

DR. GERDES: And in fact, I don't see any C there at all. But it is recorded on their typing sheet as being present.

MR. SCHECK: Well, let's go through that. In other words, when you look at the actual photograph taken, you don't see a C dot?

DR. GERDES: I don't, no.

MR. SCHECK: But when they--when the typing strips were developed at Cellmark, an analyst wrote something down saying that they actually saw a C dot?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, would you indicate here the faint--you don't even see a C dot on this?

DR. GERDES: No, I don't.

MR. SCHECK: And what's the significance of a light or non-visible C dot in terms of being able to see contaminants?

DR. GERDES: Well, the C dot is designed as an internal control of the system to tell you if you have enough DNA there. If you don't see a C dot, the user guide, the rules if you will, tell you that this is not an interpretable result. You can't count on that typing because there's too little DNA there.

MR. SCHECK: But would it be a fair statement that the fainter the C dot, the less likely you are to see low level contaminants?

DR. GERDES: Absolutely, yes, because you're--the other way the C dot can be faint is either--the last step in this process is developed. It's just like you would develop film. You would watch this develop, and if you stop it too early, underdevelop it, then you won't see the C and you also won't see the light dots, other light dots that happen--that may have been there, they won't show up.

MR. SCHECK: Now, could you please mark "Faint c" then? Would you charac--how would you characterize it? "Faint c" is what Cellmark put on its records?

DR. GERDES: How about C question mark?

MR. SCHECK: All right. Please put that on both reference samples.

DR. GERDES: (The witness complies.)

MR. SCHECK: Now, was there, however--what is the significance of the faint b recorded on the polymarker system for Nicole Brown Simpson?

DR. GERDES: Well, the significance of that is that is a second gene system, and you can cross-check one gene system with a second gene system and the--remember, Mr. Simpson has a BC and Nicole Brown Simpson has an ac. So the presence of a b here (Indicating) Is consistent with the b from Mr. Simpson finding its way into Nicole Brown Simpson and then not being detected until it gets to Cellmark where they use a second gene system.

MR. CLARKE: Objection. Move to strike, speculation, your Honor.

THE COURT: Sustained. Answer is stricken.

MR. SCHECK: All right. The b in terms of the polymarker system, is that a contaminant or an artifact?

DR. GERDES: That's a contaminant.

MR. SCHECK: Let's move on to the next time the reference samples were typed at the Department of Justice.

DR. GERDES: Yes.

MR. SCHECK: Was that on December 31st, 1994?

DR. GERDES: Yes.

MR. SCHECK: All right. And what do the typing sheets for the Department of Justice indicate?

DR. GERDES: The Department of Justice recorded on Nicole Brown Simpson a 1.1, 1.1 with a faint trace 1.3 and a trace of 1.2.

MR. SCHECK: All right. Now, with respect to Mr. Goldman, what did they record?

DR. GERDES: Mr. Goldman, they recorded a 1.3, 4 with a faint trace 1.1.

MR. SCHECK: All right. And given the rules of interpretation, what does that mean about a 1.2?

DR. GERDES: You would also have to consider the fact in this setup, that there might be a mask 1.2.

MR. SCHECK: Could you please mark "1.2 possible" under there.

DR. GERDES: (The witness complies.)

MR. SCHECK: Would this data from the Department of Justice--well, let me start again. Is that 1.2 trace on Nicole Brown Simpson's reference sample, is that an artifact or contaminant?

MR. CLARKE: Objection. Calls for speculation.

THE COURT: Sustained.

MR. SCHECK: All right. In your opinion, based on the principles of the DQ-Alpha system as you understand it, what does the appearance of that 1. Dot indicate?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: It indicates contamination.

MR. SCHECK: All right. Now, with respect to the 1.3, could that be an artifact?

DR. GERDES: In this case, again, that is known to have a cross-hybridization problem under certain circumstances, and the difficulty here is, we also have the 1 allele showing up again because of the 1.1 and, therefore, you can't really tell if this is an artifact or real.

MR. SCHECK: And when you said under the circumstances where 1.3 is an artifact are what kind of circumstances?

DR. GERDES: With high level of DNA, which this may be because it's a reference sample and the fact that there's also the 1 dot showing.

MR. SCHECK: Uh-huh. In your opinion, sir, does this pattern of typings from these three laboratories, is that consistent with evidence of cross-contamination of LAPD that was subsequently picked up and typings at Cellmark and DOJ?

MR. CLARKE: Objection. Leading, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: What in your opinion is the significance of this pattern of typings?

MR. CLARKE: Objection. Calls for speculation.

THE COURT: Overruled.

DR. GERDES: My interpretation of this pattern is, it has two possible explanations. The first explanation is that there is cross-contamination of Mr. Simpson's blood into Nicole Brown Simpson or Ronald Goldman, which is then subsequently typed by the two laboratories that LAPD sent their specimens to. The second explanation is that there are possibly contaminants and artifacts that are found at LAPD that are also found at Cellmark and also found at DOJ, and those artifacts just happen to be consistent with the contamination of the cross-contamination pattern.

MR. SCHECK: So in other words, there would have to be--at LAPD, with respect to Nicole Brown Simpson, that 1.2 would have to be LAPD contaminating it?

DR. GERDES: Yes.

MR. SCHECK: But from--and the 1.1 would be an artifact?

DR. GERDES: Yes.

MR. SCHECK: And then with respect to the Cellmark typing, the b would have to be an independent contamination at Cellmark?

DR. GERDES: Yes.

MR. CLARKE: Objection. Leading, calls for speculation.

THE COURT: Sustained. Answer is stricken.

MR. SCHECK: All right. What would that b have to be--if this weren't your first explanation, that is cross-contamination at LAPD that was picked up at the other two labs, but a series of coincidental contaminations and artifact, what would that b in the polymarker have to be?

MR. CLARKE: Same objection. That's to--I'm sorry. Calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Well, what would the b in the polymarker system have to be if this were not cross-contamination that started at LAPD, but another explanation?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: That b would have to be a contaminant that coincidentally is consistent with cross-contamination from Mr. Simpson to Nicole Brown Simpson.

MR. SCHECK: And what about the DOJ typing? What about that 1.2? What would that have to be if this were not cross-contamination that started at LAPD?

DR. GERDES: That would have to be, again, coincidental appearance of the 1.2 that is consistent with cross-contamination from Mr. Simpson's blood into Nicole Brown Simpson's.

MR. SCHECK: And then the 1.1, what could that be?

DR. GERDES: 1.--

MR. SCHECK: 1.1 in Mr. Goldman's sample.

DR. GERDES: Oh, in Mr. Goldman's sample, it's the same answer. That's would have to be a DX or an artifact that's consistent with cross-contamination.

MR. SCHECK: Thank you. Does that data, Dr. Gerdes--what effect does that data have on your view with respect to the efficacy of substrate controls that were used at LAPD in this case?

MR. CLARKE: Objection. No foundation, calls for speculation, beyond the expertise of the witness.

THE COURT: Overruled.

DR. GERDES: It undermines my confidence in those controls since there is some evidence here that the cross-contamination occurred.

MR. SCHECK: Now, I would like to move on now to, did you--now, did you examine the data concerning typings made at the Los Angeles Police Department and the Department of Justice on samples that were collected from the Bronco console on June 14th?

DR. GERDES: Yes.

MR. SCHECK: So there was one set of samples collected on June 14th. Is that your understanding?

DR. GERDES: Yes.

MR. SCHECK: And then after that, it's your understanding what happened to that vehicle? Have you been following the testimony on that?

DR. GERDES: Yes, I have.

MR. SCHECK: Have you reviewed the records on that?

DR. GERDES: Yes.

MR. SCHECK: And you're aware of the fact that it was released to Viertel's tow yard without a special protection for "Biological evidence" box being checked?

DR. GERDES: Yes.

MR. SCHECK: And you're aware that it went to Viertel's for a period of time?

DR. GERDES: Yes.

MR. SCHECK: And you're aware that the car was broken into at least once?

DR. GERDES: Yes.

MR. CLARKE: Objection. Leading at this point, your Honor.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. CLARKE: Also misstates the evidence.

THE COURT: It does. Sustained.

MR. SCHECK: The car was broken into--there's been evidence the car was broken into once.

THE COURT: No, there hasn't.

MR. SCHECK: Withdraw all of this.

MR. SCHECK: Have you reviewed the data just from the June 14th collection?

DR. GERDES: Yes, I have.

MR. SCHECK: All right. Now, I'd like to move to another--ask this be marked I think it's 1309.

THE COURT: 1309.

(Deft's 1309 for id = board)

MR. SCHECK: And I'd like to mark a photograph and I--forgive me. I think that a copy of this photograph may have been introduced as a Prosecution exhibit, but I can't figure out which one it was.

THE COURT: All right. Proceed.

MR. SCHECK: Try again. Make this 1309-A.

(Deft's 1309-A for id = photograph)

MR. SCHECK: Now--

MR. CLARKE: I'm sorry. Could I see it, your Honor?

MR. SCHECK: Oh, sure.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. SCHECK: Your Honor, may we approach just a minute?

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

MR. SCHECK: What does 1309-A represent, those series of strips?

THE COURT: Do you want to show it to him up close?

MR. SCHECK: Yeah. I think he knows what--

DR. GERDES: These are items from the Bronco taken--DNA items from the Bronco that were typed at Department of Justice.

MR. SCHECK: Pictures of the Department of Justice --

DR. GERDES: Pictures of the strips, yes.

MR. SCHECK: And do you also have their scoring sheet with respect to that?

DR. GERDES: Yes, I do.

MR. SCHECK: All right. And on 1308 itself, have we taken certain strips, enlarged them and then made--and then taken DOJ typing sheets data?

DR. GERDES: Yes.

MR. SCHECK: And in fact, in the upper left-hand corner here of 1308, we see another picture of 1308-A; is that right?

DR. GERDES: That's correct.

MR. SCHECK: Okay. Now, LAPD item no. 30, is that a stain from the bloodstain from the Bronco console?

DR. GERDES: That's correct.

MR. SCHECK: And is item no. 31 also a stain swatch taken from the Bronco console on June 14th?

DR. GERDES: That's correct.

MR. SCHECK: These were all items taken June 14th?

DR. GERDES: That's correct.

MR. SCHECK: And QC816, what is that?

DR. GERDES: That is a quality control specimen and at Department of Justice, they take known samples from known individuals and run them through in a blind fashion so that they can tell if the typing is being done correctly. So this would be a quality number 816 which would have a particular type, and it would be run as a control at the time they did their typing.

MR. SCHECK: And what is this strip marked "Positive control"?

DR. GERDES: The positive control is the control that is incorporated or packaged with the kit. It's a DNA that's a 1.1, 4 DNA that's run just to check the strips.

MR. SCHECK: All right. Now, is there one control in this series of strips that is not included in this large chart?

DR. GERDES: I believe so.

MR. SCHECK: And which one is that?

DR. GERDES: The extraction blank? Is that what you're talking about? Yes.

MR. SCHECK: Okay. And that control had no--what--did that control have any evidence of activity?

DR. GERDES: No. That's the DNA extraction blank, and in this particular case, it looks clean.

MR. SCHECK: Now, what was the typing called by the Department of Justice for LAPD item 30?

DR. GERDES: Item 30 was recorded as a 1.1, 1.2 with a hint of 1.3.

MR. SCHECK: And that in this case has been called as a genotype consistent with Mr. Simpson; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: By the Department of Justice?

DR. GERDES: By the Department of Justice.

MR. SCHECK: All right. Now, LAPD item no. 31, what was the call made by the Department of Justice and testified to by Mr. Sims in this case?

DR. GERDES: They recorded this item as a mixture of a 1.1, 1.2 as a large contributor and a minor contributor of a 1.3, 4.

MR. SCHECK: That is in fact what appears in their typing sheet?

DR. GERDES: Yes.

MR. SCHECK: All right. And was the 1.3, 4 called by the Department of Justice as being a genotype consistent with Mr. Goldman?

DR. GERDES: It was.

MR. SCHECK: All right. And to make that call, what must the analyst say about that 1.3 allele or dot? Is it--in terms of it being a real allele or a contaminant?

DR. GERDES: In order for it to be recorded as a real allele or a typeable allele, it should be greater intensity than a C dot.

MR. SCHECK: But in terms of--was that 1.3 called as a real allele or real DNA?

DR. GERDES: It was considered in terms of the report because it was mentioned as a minor contributor, yes, it was.

MR. SCHECK: All right. Now, on the quality assurance control, QC816, what is the expected genotype for that?

DR. GERDES: The expected genotype on that quality control was a 1.2, 1.2.

MR. SCHECK: All right. And what was recorded by the Department of Justice in terms of the alleles or the dots seen on that strip?

DR. GERDES: They recorded in addition--they recorded a hint of a 1.3 and a 1.1 dot.

MR. SCHECK: All right. And looking at the positive control, what's the expected genotype for that?

DR. GERDES: The expected genotype is a 1.1, 4.

MR. SCHECK: And what did they find?

DR. GERDES: And they found a 1.3 and they recorded that as a hint of a 1.3.

MR. SCHECK: Now, in view of the 1.3 or the hint of 1.3 that is recorded on QC816 and the hint of 1.3 recorded on the positive control, in your opinion--well, what is the purpose of these controls in terms of the appearance of dots on other strips in the same run?

DR. GERDES: The purpose of the controls is to ensure that the typing was run appropriately and all the controls worked. In this particular case, this hint of 1.3 on both of these strips indicates at this point we don't know what it indicates. It indicates either there's an artifact, the 1.3 remember can do that, and we have a presence of a 1 allele, so we can't determine whether that's the case or not. It could be a contaminant or it could be an error in this particular run in the way that they ran their hybridization.

MR. SCHECK: And incidentally, you said the 1.3 when it appears as an artifact as opposed to a real foreign DNA contaminant, how much DNA has to be put into the templet?

DR. GERDES: Well, in order for that to be the explanation, you need greater than 6 nanograms of DNA.

MR. SCHECK: Now, in view of the 1.3 showing up as hints in the quality assurance sample 816 and the positive control, in your opinion, is it scientifically acceptable to call the 1.3 on LAPD item no. 31 as a real allele?

MR. CLARKE: Objection. Lack of expertise on the part of the witness.

THE COURT: Overruled.

DR. GERDES: Well, you can't call that allele because your controls are showing weak signals similar to that. You have no confidence because the control has failed as to whether or not we have a similar thing going on on this particular item. You can't ignore the 1.3 on your controls and then count it on something that was run during the same run as being real. There's no way scientifically to determine at that point whether that's the case or not.

MR. SCHECK: In terms of the Bronco console and samples that were collected on June 14th, 1995, other than LAPD item no. 31, is there any other DNA results from that console that is consistent with Mr. Goldman's genotype?

MR. CLARKE: Objection. Leading and argumentative.

THE COURT: Sustained.

MR. SCHECK: Is there any other DNA result from swatches taken from the console on June 14th, 19--ooh, that's wrong.

MR. SCHECK: Your Honor, may I make a correction on the board?

THE COURT: You may.

MR. SCHECK: Do you have a black marker. Your Honor, let the record reflect on 1308, I'm changing 6-14-95 to 6-14-94.

THE COURT: Thank you.

MR. SCHECK: Thank you.

MR. SCHECK: In terms of the DNA results from both the Los Angeles Police Department and the Department of Justice from bloodstains taken on the console, from the console that were collected on June 14th, not August 26th, but June 14th, are there other than LAPD item no. 31, are there any other results that are consistent with Mr. Goldman's genotype?

DR. GERDES: No.

MR. SCHECK: So as far as the June 14th collection is concerned, item 31 is the only evidence that's consistent with Mr. Goldman's genotype on that Bronco console?

DR. GERDES: That's correct.

MR. SCHECK: And it's your opinion, sir, that the controls failed as far as LAPD item no. 31 is concerned?

DR. GERDES: That's correct.

MR. SCHECK: And that this cannot be called?

DR. GERDES: That's correct.

MR. SCHECK: Now, in terms of development length, could you indicate what that is?

DR. GERDES: As I explained, when you--the last step in these strips is to allow that dot to develop, and it's just like developing film. It's not exactly the same, but it's a good analogy. So then as you develop, you can see the dot getting darker and darker, and the longer you wait, the darker the dot will become, and when you stop it, then that stops the process.

MR. SCHECK: Now, the LAPD protocol--withdrawn. In the Department of Justice protocol, what is the time frame that they indicate they will develop the strips in? How many minutes?

DR. GERDES: 20 to 30 minutes.

MR. SCHECK: All right. And in this particular DOJ typing sheet, did they indicate how long these particular strips were developed?

DR. GERDES: Yes.

MR. SCHECK: And what was that?

DR. GERDES: 25 minutes.

MR. SCHECK: Mark this as Defense 1310.

THE COURT: 1310.

(Deft's 1310 for id = board)

MR. SCHECK: And I have two smaller pictures, your Honor, that correspond with--that are also on this board, one of which I'll mark 1310-A.

THE COURT: And these are DQ-Alpha strips from October 31st?

MR. SCHECK: That is correct, your Honor.

(Deft's 1310-A for id = photograph)

MR. SCHECK: And 1310-B.

THE COURT: And those will DQ-Alpha strips from December 31st.

MR. SCHECK: Thank you. That's correct.

(Deft's 1310-B for id = photograph)

MR. SCHECK: Now, Dr. Gerdes--

MR. CLARKE: Can I have just a moment, your Honor?

THE COURT: Certainly.

(Brief pause.)

MR. SCHECK: LAPD item no. 52, is that one of the Bundy blood drops?

DR. GERDES: Yes, it is.

MR. SCHECK: Is that the Bundy blood drop that Cellmark got an RFLP result with between 25 and 50 or around 25 nanograms of human DNA?

DR. GERDES: That's correct.

MR. SCHECK: Now, what was the typing at the Department of Justice with respect to LAPD item 52?

DR. GERDES: For item 52, they recorded a 1.1, 1.2 with a 1.3 C trace.

MR. SCHECK: C minus?

DR. GERDES: C minus.

MR. SCHECK: What does that mean in their nomenclature?

DR. GERDES: That--the C minus?

MR. SCHECK: Yes.

DR. GERDES: Actually I'm not sure what the C minus means.

MR. SCHECK: All right. But what does "Trace" mean?

DR. GERDES: "Trace" simply means that there's a very small amount. C minus--okay. I'm sorry. Pardon me. C minus means it's less than the C dot.

MR. SCHECK: Or that's what they've called it?

DR. GERDES: That's what they've called it.

MR. SCHECK: All right. And what was the genotype recorded in this case for LAPD item no. 52, what the DOJ report is?

DR. GERDES: They reported a 1.1, 1.2.

MR. SCHECK: All right. Now, let us assume that DNA from the item no. 52 degraded through bacteria and was subsequently--those swatches were subsequently cross-contaminated with DNA from Mr. Simpson and the genotype of the original source of that swatch included a 1.3.

DR. GERDES: Yes.

MR. SCHECK: Would, in theory, this typing be consistent with that kind of mixture?

MR. CLARKE: Objection. Assumes facts not in evidence.

THE COURT: Sustained.

MR. CLARKE: No foundation.

THE COURT: Sustained.

MR. SCHECK: All right. If one to regard this 1.3 dot on LAPD item no. 52 from the DOJ typing as a real allele--just asking you to assume that.

DR. GERDES: Yes.

MR. SCHECK: What would this be in terms of, would this be a mixture?

MR. CLARKE: Objection. Calls for speculation, assumes facts not in evidence.

THE COURT: Overruled.

DR. GERDES: Yes, it would. It would be a mixture of these three--of individuals, all possible combinations of individuals with those three alleles.

MR. SCHECK: All right. Now, in terms of the various systems that we're using here, DQ-Alpha, D1S80 and RFLP, which of the systems is the most sensitive?

DR. GERDES: In terms of detecting DNA? The DQ-Alpha system.

MR. SCHECK: All right. So if there's small amounts of DNA, it will show up first on the DQ-Alpha system?

DR. GERDES: Yes.

MR. SCHECK: All right.

THE COURT: Doctor, would you take a half a step back please.

DR. GERDES: I'm sorry.

THE COURT: Okay. Thank you.

MR. SCHECK: Now, what did you--what was recorded with respect--what is QC877?

DR. GERDES: That is another quality control sample that happened to be run with this particular run.

MR. SCHECK: All right. And what is the positive control?

DR. GERDES: Again, that's the positive control, the 1.1, 4 that comes with the kit.

MR. SCHECK: And what did the Department of Justice indicate they found with respect to the 1.3 dot on QC877?

DR. GERDES: Once again, they record a trace of a 1.3 on this quality control sample and a hint trace of a 1.3 on the positive control.

MR. SCHECK: Now, in the Department of Justice--withdrawn. Did the Department of Justice subsequently rehybridize item no. 52?

DR. GERDES: They did.

MR. SCHECK: All right. And when was that?

DR. GERDES: That was on 12-31-94.

MR. SCHECK: All right. And what results did they record?

DR. GERDES: On rehybridization, they wanted a 1.1, 1.2 with a 1.3 very faint hybridization.

MR. SCHECK: Now, can you see that very faint trace in this picture?

DR. GERDES: No.

MR. SCHECK: Is that something that was recorded by them when they first saw the strip?

DR. GERDES: Yes.

MR. SCHECK: So by their own records, what are they indicating about the 1.3 when they rehybridized it?

DR. GERDES: Well, they're indicating that they saw something on their record and--but I don't see it on the strip.

MR. SCHECK: All right. Now, do their records indicate from the Department of Justice how long they developed this rehybridization on December 31st, 1994?

DR. GERDES: Yes. 22 minutes.

MR. SCHECK: All right. Is there any indication of how long the strips that were hybridized on October 31st, 1994 were developed?

DR. GERDES: I couldn't find any record of it on that sheet.

MR. SCHECK: Could you please indicate "Not indicated" on those brackets?

DR. GERDES: (The witness complies.)

MR. SCHECK: Now, the longer the development time, what happens in terms of these dots?

DR. GERDES: They become more intense, especially faint dots. The faint dots will begin to appear.

MR. SCHECK: So would it be fair to say that if you develop it, the strips, less time as opposed to a greater time, you're less likely to see faint dots?

MR. CLARKE: Objection. Leading.

THE COURT: Sustained.

MR. SCHECK: All right. What happens if you develop--within a framework, bracketed framework of 20 or 30 minutes, in terms of developing these strips and the likelihood of seeing faint dots, is it greater--when is it greater and when is it less?

DR. GERDES: The dots will be more intense at 30 minutes and less intense or lighter 10 to 20 minutes.

MR. SCHECK: So it's a gradation the longer the development, the more you see it?

DR. GERDES: Yes.

MR. SCHECK: Now, in your judgment, do you have an opinion with respect to the limitations of the DQ-Alpha system in the protocol as implemented here, the Department of Justice, with respect to development run?

MR. CLARKE: Objection. Vague.

THE COURT: Overruled.

DR. GERDES: Yes. I think that the development length should be standardized to a greater degree in order to provide for more reliable in cross--for cross-comparison of two different strips, they have to be developed at the same time for you to really compare the two.

MR. SCHECK: Is there a problem, sir, with dots appearing when you develop them for longer periods and then disappearing when you develop for shorter periods?

MR. CLARKE: Objection. Leading.

THE COURT: Sustained.

MR. CLARKE: Also beyond expertise.

MR. SCHECK: Dr. Gerdes, in terms of--the DQ-Alpha system looks at what gene?

DR. GERDES: Looks at the DQ-Alpha gene. HLF, DQ-Alpha.

MR. SCHECK: In your laboratory, do you use systems to detect the DQ-Alpha gene?

DR. GERDES: Yes, I do.

MR. SCHECK: What systems are they?

DR. GERDES: They're a dot blot system. It's not this particular kit, but it's a similar dot blotting system.

MR. SCHECK: What kind is it called? What--this is called reverse dot blot?

DR. GERDES: This is direct dot blotting.

MR. SCHECK: That's what you use?

DR. GERDES: Yes.

MR. SCHECK: Are you developing PCR systems?

DR. GERDES: Yes.

MR. SCHECK: That involve direct dot blotting?

DR. GERDES: At the present time, we're using them. We're not really developing them at the moment, but I have in the past, yes.

MR. SCHECK: D1S80, what kind of a system is that?

DR. GERDES: That's a--it's a short tandem repeat system for PCR.

MR. SCHECK: And with respect to the CNV, did you develop a PCR base system to detect that?

DR. GERDES: Yes.

MR. SCHECK: Do you have any qualms at all about your expertise as a molecular biologist to interpret the protocols and the operation of the DQ-Alpha system?

THE COURT: Counsel, the objection that was sustained was leading.

MR. SCHECK: Oh. It wasn't as to expertise? Okay. Thank you.

MR. SCHECK: Dr. Gerdes, what is your view--let's do this in our remaining minutes.

MR. SCHECK: Could we put--I would like to put these two boards up side by side. Since we're running out of time, maybe we could--I could even dragoon some people into hold them? May that would do it?

THE COURT: I don't know. I think your colleagues didn't liked that terminology. They'll volunteer. All right. Mr. Harris. Thank you, sir. Making sure you don't block off the court reporter.

MR. SCHECK: Let's just try it this way. With 1309, this is the Bronco console board and item no. 31. Did this 1.3 dot that I'm pointing to on LAPD item no. 31--

DR. GERDES: Yes.

MR. SCHECK: --how did they call that?

DR. GERDES: They called that as a real allele.

MR. SCHECK: Did they call that as a contaminant?

DR. GERDES: No.

MR. SCHECK: Did they call that as an artifact?

DR. GERDES: No.

MR. SCHECK: They call that as real?

DR. GERDES: Yes.

MR. CLARKE: Objection. Leading.

THE COURT: Overruled.

MR. SCHECK: Is this 1.3 the basis of calling a genotype consistent with Mr. Goldman in the Bronco?

DR. GERDES: It is.

MR. SCHECK: Is this the only evidence from the Bronco console as the collection was done on June 14th, 1994 that has a genotype consistent with Mr. Goldman in the Bronco?

DR. GERDES: Yes.

MR. CLARKE: Objection. Asked and answered.

THE COURT: Answer will still. We did cover that once already though.

MR. SCHECK: I understand.

MR. SCHECK: Could you please--I have a circle here, your Honor. Could you please put over that 1.3 and write in this circle called "Real"?

MR. SCHECK: Is that permissible, your Honor?

THE COURT: Yes.

DR. GERDES: Write over this to cover it or--

MR. SCHECK: No. Put it perhaps over it to the side.

DR. GERDES: Below it?

MR. SCHECK: Below it and pointing upwards.

DR. GERDES: (The witness complies.)

MR. SCHECK: Okay. Now, I ask you with a--this marker--I'm sorry. Now, with respect to the--pointing that to LAPD item no. 52.

DR. GERDES: Yes.

MR. SCHECK: Pointing that to the dot that's 1.3.

DR. GERDES: Yes.

MR. SCHECK: How did the department call that in terms of whether that was real or an artifact?

DR. GERDES: Artifact.

MR. SCHECK: Not real?

DR. GERDES: Not real.

MR. SCHECK: Could you please on this sticker and with an arrow write "Not real" and point downwards?

DR. GERDES: (The witness complies.)

MR. SCHECK: Comparing these two analyses, in your opinion, as a DNA laboratory director, as a molecular biologist, as an individual that develops PCR typing systems, are these two calls scientifically consistent?

DR. GERDES: No, they're not.

MR. SCHECK: All right. Your Honor, I think this is a good place to stop.

THE COURT: All right. All right. Ladies and gentlemen, we're going to take our recess for the afternoon. Please remember all of my admonitions to you; don't discuss this 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. As far as the jury is concerned, we'll stand in recess until 9:00 A.M. tomorrow morning. All right. Thank you, counsel. And, Dr. Gerdes, you are ordered to return tomorrow morning at 9:00. All right. We'll stand in recess.

(At 5:00 P.M., an adjournment was taken until, Thursday, August 3, 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 Wednesday, August 2, 1995 volume 198 pages 39771 through 40031, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: Arthur Walsh, Deputy City Attorney Michael D. Sullivan, Esquire Halina F. Osinski, Esquire

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I N D E X

index for volume 198 pages 39771 - 40031 day date session page vol.

Wednesday August 2, 1995 A.M. 39771 198 P.M. 39897 198

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Gerdes, John 39784bs 198 (Resumed) 39900bs

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Gerdes, John 39784bs 198 (Resumed) 39900bs

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EXHIBITS

DEFENSE for in exhibit identification evidence page vol. Page vol.

1285 - Chart 39824 198 entitled "Testing technology transfers"

1286 - 1-page document 39862 198 entitled "DNA hybridization record"

1286-A - Photograph 39873 198 depicting DQ-Alpha strips with red arrows (Computer printout)

1286-B - Photograph 39903 198 depicting DQ-Alpha strips with red arrows (Computer printout)

1287 - Chart 39863 198 entitled "Strips: Percent of contamination and/or artifacts"

1288 - Chart 39872 198 entitled "Extra signals by allele, May, 1993 thru August 1994, LAPD 4 allele"

1289 - Chart 39875 198 entitled "Extra signals by allele, May, 1993 thru August 1994, LAPD 1.2 allele"

1290 - Chart 39876 198 entitled "Extra signals by allele, May, 1993 thru August 1994, LAPD 2 allele"

1291 - Chart 39877 198 entitled "Extra signals by allele, May, 1993 thru August 1994, LAPD 3 allele"

1292 - Photograph 39879 198 of user guide test strips

1292-A - Photograph 39883 198 of user guide test strips with red arrows (Computer printout)

1293 - Chart 39885 198 entitled "Extra signals by allele, LAPD 1.1 allele"

1294 - Chart 39886 198 entitled "Extra signals by allele, LAPD 1.3 allele"

1295 - Chart 39889 198 entitled "Runs: Percentage with contamination, 5/93 thru 8/94"

1296 - 1-page document 39902 198 excerpt from page 67 of the national research council manual

1297 - Chart 39911 198 entitled "Runs and strips: Percentage of contamination and/or artifacts

1298 - Chart 39912 198 "Percentage of contamination by controls"

1299 - Document 39940 198 excerpt from page 89 of the national research council manual

1300 - Photograph 39952 198 of the LAPD scientific laboratory with 2 individuals

1301 - Photograph 39953 198 of the testing area in the LAPD scientific laboratory

1302 - Photograph 39955 198 of the work area in the LAPD scientific laboratory

1303 - Photograph 39955 198 of the LAPD scientific laboratory

1303-A - Photograph 39959 198 of a close-up of the LAPD scientific laboratory

1304 - Photograph 39959 198 of various test-tubes

1305 - Photograph 39959 198 of a close-up view of a shelf

1306 - Photograph 39961 198 of extraction solution in the LAPD scientific laboratory

1307 - Photograph 39961 198 of a close-up view of solution in the LAPD scientific laboratory

1308 - Chart 39991 198 entitled "Testing results NBS and RG reference sample

1308-A - 1-page document 39992 198 entitled "DNA hybridization sheet"

1308-B - Photograph 39995 198 of a DNA hybridization sheet with red markings (Computer printout)

1308-C - Photograph 39999 198 of DQ-Alpha strips - reference samples (Computer printout)

1309 - Chart 40009 198 entitled "Bronco console stains collected June 14, 1994"

1309-A - Photograph 40009 198 of DQ-Alpha strips

1310 - Chart 40019 198 entitled "Bundy blood drop, LAPD item no. 52"

1310-A - Photograph 40019 198 of DQ-Alpha strips taken October 31, 1994

1310-B - Photograph 40019 198 of DQ-Alpha strips taken December 31, 1994