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: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Douglas, Mr. Blasier, Mr. Thompson, Mr. Scheck. The People are represented by Mr. Clarke, Mr. Harmon and Miss Clark, no relation. The jury is not present. Counsel, is there anything we need to take up before we conclude the cross-examination of Dr. Gerdes? Hearing nothing--
MS. CLARK: Message received.
THE COURT: Deputy Magnera, let's have the jury, please.
MS. CLARK: Message received.
THE COURT: We have already spent four hours and five minutes, but who is counting?
MR. SCHECK: Did I make my limit?
THE COURT: Almost.
MR. SCHECK: I was under six hours.
(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. The record should reflect that we have now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: All right. Dr. Gerdes, would you resume the witness stand, please.
John Gerdes, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Good morning again, doctor.
DR. GERDES: Good morning.
THE COURT: Doctor, sir, you are reminded you are still under oath. And Mr. Clarke, you may continue with your cross-examination.
MR. CLARKE: Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Good morning, Dr. Gerdes.
DR. GERDES: Good morning.
MR. CLARKE: Dr. Gerdes, the day before yesterday you suggested that there might have been cross-contamination on various evidence items in this case, correct?
DR. GERDES: Yes, I did.
MR. CLARKE: And you suggested that that cross-contamination that might have occurred, occurred during the extraction and evidence handling phase by Collin Yamauchi, correct?
MR. SCHECK: Objection to the form of the question as argumentative.
THE COURT: Overruled.
DR. GERDES: I stated that it was consistent with that, yes.
MR. CLARKE: Now, those are two different steps in the process, correct, that is, sample handling and evidence--I'm sorry, DNA extraction?
DR. GERDES: Yes.
MR. CLARKE: Those two acts or events take place in different rooms at the Los Angeles Police Department, DNA--at the Los Angeles Police Department crime laboratory?
DR. GERDES: They do.
MR. CLARKE: Where does the sample handling take place?
DR. GERDES: That would be in the evidence handling room.
MR. CLARKE: Evidence processing room?
DR. GERDES: Evidence processing room, yes.
MR. CLARKE: Or EPR as it is sometimes referred to in this case?
DR. GERDES: Yes.
MR. CLARKE: DNA extraction takes place where?
DR. GERDES: That is in the serology laboratory.
MR. CLARKE: Now, Dr. Gerdes, you would agree, wouldn't you, that there is a way, by tracing the history of samples and how they are processed and handled, to eliminate one or both of those possibilities of cross-contamination, whether in sample handling or extraction, by looking at the history of a particular evidence sample?
DR. GERDES: I'm not sure. No, I don't believe you can do that. I said that the two controls--to explain this, the two controls, the amplification water control, tends to be a control for introduction of contamination at that stage and that particular control allows you to differentiate from that stage on the process of copying the DNA and anything preceding that. Now, there really isn't a good control to differentiate the first two steps, which is sample handling and sample extraction, at least in the laboratory. Now, the substrate control would allow you theoretically to determine if extract--if there was DNA introduction earlier. If, for instance, the substrate controls were contaminated, and all of the reagent blanks were clean around the same time, that would be definite indication that the source or the time at which the contamination occurred would be at the crime scene.
MR. CLARKE: Dr. Gerdes, going back to my question, isn't there a way, by tracing the history of a particular evidence sample, to eliminate the possibility that cross-contamination occurred at one or both of those two stages?
DR. GERDES: No. The problem is that when you get to the final process, the final typing strip, if you see an indication of DNA on that strip, you have some idea as to what stage it might have been incorporated, but there is no proof because basically, for instance, the extraction blank, if it were contaminated, that basically tells you that something occurred in the handling in the laboratory or in the extraction process, but if the substrate control was contaminated, that could be either because it was contaminated at the--at the crime scene or the reagents that were added to that substrate control at the lab introduced DNA, so that is--
THE COURT: Ask the question again.
MR. CLARKE: Thank you.
MR. CLARKE: Dr. Gerdes, what I'm asking you is isn't there a way, by tracing the history of a sample, that may eliminate one or both of those possibilities of cross-contamination during handling and/or extraction?
DR. GERDES: You can analyze the sequence of events, if that is what you are getting at.
MR. CLARKE: All right. So instead of the history of a sample, you prefer the term "Sequence of events"?
DR. GERDES: Yes.
MR. CLARKE: You are familiar with item no. 48, one of the blood drops at Bundy, correct?
DR. GERDES: Correct.
MR. CLARKE: Describe for us the sequence of events with regard to item no. 48.
DR. GERDES: Okay. Item no. 48, if I recall correctly, came in on the 13th of June, was handled at the processing room for drying on the 14th of June. That particular item was processed at the same time as Mr. Simpson's reference sample and the Rockingham glove.
MR. CLARKE: Well, objection. Move to strike the last portion of the answer.
THE COURT: Overruled.
MR. CLARKE: Is that the entire history?
DR. GERDES: Yes. In the sequence in which that occurred was that the--Mr. Simpson's blood sample was handled first and then the Rockingham glove and then the item 52 and I don't remember the exact sequence, I can look it up, but the other Bundy drops after that.
MR. CLARKE: Is that the entire sequence of events with respect to item no. 48 and DNA testing?
DR. GERDES: There were also substrate controls that were processed at the same time.
MR. CLARKE: Is that--
DR. GERDES: That were done at that time as far as the cuttings.
MR. CLARKE: Is that the entire DNA history of item no. 48?
DR. GERDES: No. At that point that item was--and at this point I will have to look at my notes.
MR. CLARKE: All right. Would it refresh your recollection to look at your notes?
DR. GERDES: Yes.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: Okay. On the 24th of June the item 48 and--was mailed to Cellmark and it was mailed at the same time as 49, 50, the reference samples from all three individuals, and no. 7 and 12 which are blood drops from Rockingham and item 47, 52, 56 and 78. Those items were mailed in a package from LAPD on 6/24/94 to Cellmark. The Department of Justice item 48 was mailed to the Department of Justice on August 12th, 1995, and it was mailed at the same time as item no. 6, which is a blood drop from the Rockingham driveway, and items 47, 49 and 50, as well as the reference samples from Mr. Simpson, Nicole Simpson and Ron Goldman.
MR. CLARKE: Is that the entire history of those samples as far as DNA testing is concerned, doctor?
DR. GERDES: They were then analyzed at those particular laboratories and the substrate controls for those particular items for the Department of Justice substrate controls.
MR. CLARKE: I'm sorry, your Honor. Objection, motion to strike.
THE COURT: Sustained.
MR. SCHECK: What about the item, your Honor? He should be allowed to explain it.
THE COURT: Sustained. Sustained.
MR. CLARKE: With respect to item no. 48, is that the entire history as far as DNA testing is concerned?
DR. GERDES: If you want me to go in the specific dates in which the DNA was analyzed, et cetera.
MR. SCHECK: Your Honor, I think this question is vague in the form that he is talking about--
THE COURT: Sustained. Rephrase the question.
MR. CLARKE: Dr. Gerdes, with regard to--
THE COURT: That is also a speaking objection.
MR. SCHECK: I apologize.
MR. CLARKE: Dr. Gerdes, with regard to item no. 48, you have described it being seized. How many swatches were seized--collected?
DR. GERDES: Well, I don't recall right off and I apologize, but I only brought what I felt were critical items to--I mean, I have two file drawers full of data on this and I would have to look it up and I don't have it with me.
MR. CLARKE: As far as these two swatches--I'm sorry. Rephrase that. I would like you to assume that there were two swatches collected with regard to item no. 48 at the crime scene.
DR. GERDES: Okay.
MR. CLARKE: With regard to those swatches--
MR. SCHECK: Objection to that hypothetical in terms of what was collected at the crime scene.
THE COURT: Sustained.
MR. CLARKE: As far as what was collected from item no. 48, how many swatches did in fact Collin Yamauchi deal with when he extracted DNA from it--from one or more of them?
DR. GERDES: I believe, umm--
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: Again, I don't have that record with me. I can look that up.
MR. CLARKE: You are unable to tell us today--
DR. GERDES: How many swatches, no.
MR. CLARKE: All right. With regard to item no. 48, is it your recollection, is it your testimony that all of the swatches were in fact processed by Mr. Yamauchi, and I'm referring to DNA extraction?
DR. GERDES: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Incidentally, Dr. Gerdes, do you believe the number of swatches that are collected with respect to a particular stain is important?
DR. GERDES: I believe it is important to keep track of how many there are and it is important--it would be important if they are--to--the ideal situation would be to take those swatches and put them in separate bindles at the time of collection so that they are not handled.
MR. CLARKE: Objection, move to strike, nonresponsive.
THE COURT: Overruled. Ask again.
MR. CLARKE: With regard to, Dr. Gerdes, these one or more swatches, it is your testimony Mr. Yamauchi extracted DNA from whatever was collected, whether it was one or if it was two, he extracted from both of them?
DR. GERDES: He--I'm sure he did not extract from all of the swatches that were collected. It is important to reserve some of that evidence and I'm sure he did that.
MR. CLARKE: Wouldn't it be very important to know, in terms of your opinions about cross-contamination, whether or not he in fact did extract DNA from some of them, all of them or none of them?
DR. GERDES: It would be--it would be important in terms of whether he handled all of them.
MR. CLARKE: Well, wouldn't it be extremely important in terms of the potential of cross-contamination for you to know exactly how many of those swatches he took DNA from?
DR. GERDES: It would be--basically important in terms of--of--it is not important in terms of what I see on the typing results that have been reported. It is important in terms of the potential to go back, at least to the stage in the lab, and perhaps do further analysis. It still doesn't control for what happened before that and it doesn't control for the fact that those swatches--it is my understanding that they were all handled, they were all packaged at the same time. It doesn't matter how many swatches there were there on that morning of--or on the evening of June 13th when they were packaged and bindled, those items were all handled at the same time. And so at this point, since I don't know exactly--or I can't be assured exactly of how those were handled and manipulated, at that point you have--already have a suspicion or may have a suspicion as to the handling of the samples because they were all handled, the swatches were all handled at that time. A subset of those may have been extracted at a later time, but because they were all handled together on that day and because they were all handled together at the crime scene, you can't back this up all the way to the very, very beginning.
MR. CLARKE: Dr. Gerdes, wouldn't it be extremely important to know, in terms of the potentials of cross-contamination, if Mr. Yamauchi extracted DNA from all of those swatches or only some of those swatches?
DR. GERDES: It would be important in terms of going back to those swatches and perhaps doing something with those again, but as far as the analysis of the data that I've looked at, it is not important to that. What I'm looking at is the typing result that he obtained from that and the manipulation, not the extraction, but the manipulation of those swatches on that morning.
MR. CLARKE: Is it your testimony that the steps in extracting DNA from a sample represent the exact same steps that are taken when one simply packages a sample for shipment to another laboratory?
DR. GERDES: No. It is my testimony that the manipulation process has the potential, whenever you manipulate these. It doesn't have to be DNA extraction.
MR. CLARKE: Objection, nonresponsive, your Honor.
THE COURT: Sustained.
MR. CLARKE: Move to strike.
THE COURT: The answer is stricken.
MR. CLARKE: Dr. Gerdes, what I'm asking you is are the steps of extracting DNA from a swatch the same exact steps that are taken when a swatch is simply packaged for shipment to another laboratory?
DR. GERDES: The DNA extraction procedures are similar in all of those laboratories.
MR. CLARKE: No. What I'm asking you, Dr. Gerdes, is are the steps the same for one, taking a sample and extracting DNA from it, and two, simply collecting a sample from a storage location and sending it to another laboratory?
DR. GERDES: The steps should be the same and that includes handling that substrate control in parallel between each evidence item that is handled.
MR. CLARKE: Dr. Gerdes, aren't there steps in extracting DNA that include adding reagents, for instance, to a swatch?
DR. GERDES: Yes.
MR. CLARKE: Aren't there steps that include, for instance, adding chelex to a swatch?
DR. GERDES: Yes.
MR. CLARKE: When one simply grabs a sample from storage and packages it for shipment to another laboratory is chelex added to it?
DR. GERDES: No, but the sample is handled, it is manipulated with gloved hands.
MR. CLARKE: Objection, nonresponsive, your Honor.
THE COURT: Sustained.
MR. CLARKE: Move to strike the answer.
THE COURT: The answer is stricken.
MR. CLARKE: Dr. Gerdes, when you pick a sample up from storage, put it in a box and send it to another laboratory, you don't add any chemicals to it, do you?
DR. GERDES: No.
MR. CLARKE: You don't add chelex to it?
DR. GERDES: No.
MR. CLARKE: You don't put it in a microcentrifuge and spin it around?
DR. GERDES: No.
MR. CLARKE: You just put the sample in a container and ship it?
DR. GERDES: That's correct.
MR. CLARKE: It is never exposed to an extraction process, correct, under the situation I have just described?
DR. GERDES: Under what I've described that's true.
MR. CLARKE: Now I would like to turn your attention to item no. 50. Can you describe the history of that sample, and that is referring to item no. 50, another blood drop at the crime scene?
MR. SCHECK: Your Honor, I think that that is vague, the term "History."
THE COURT: Overruled. In the context of what we've just heard, I know exactly what is coming.
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: Item--item 50 was handled at that same--as far as manipulation of the swatches, on 6/13, if I recall. As far as bindling, then it was--it was in the first set again, so it was in with that same set of first--of initial LAPD DNA extractions on 6/14 and again in the manipulation stage that particular item at the time of packaging, the order was Mr. Simpson's reference sample, the Rockingham glove, item--blood item 52 and then item 48 was one of the other four, I'm not sure which order, but it was one of those subsequent to that as far as the manipulation and handling of that sample and bindling. Then on 6/14 it was one of the items that was set up for DNA extraction and then typed at LAPD and it was mailed--item 50, correct?
MR. CLARKE: Yes.
DR. GERDES: It was mailed again on 6/24 to Cellmark. It was in that--that grouping that I mentioned earlier, and to the Department of Justice--it was mailed again on August 12th to the Department of Justice.
MR. CLARKE: Can you--first of all, is that the entire history of that sample as far as DNA testing is concerned?
DR. GERDES: As far as--as its arrival at laboratories. Of course if you want to go into when it was extracted and so forth at each lab, that is not the entire history, but at that point then it was extracted and typed.
MR. CLARKE: In other words, when these items were received by other laboratories there were steps taken to type those samples?
DR. GERDES: Correct.
MR. CLARKE: How many samples were collected with regard to item no. 50?
DR. GERDES: How many swatches?
MR. CLARKE: Correct, I'm sorry, swatches.
DR. GERDES: Again, I don't have that data sheet with me.
MR. CLARKE: With regard to item no. 50, wouldn't it be important to know how many of the swatches collected were extracted for DNA by Collin Yamauchi?
MR. SCHECK: Your Honor, object to the form of the question.
THE COURT: Overruled.
DR. GERDES: Of--the--basically the extraction process again is the second step in this procedure so what is really critical--
MR. CLARKE: Objection, move to strike, your Honor.
THE COURT: Sustained.
MR. CLARKE: Move to strike.
THE COURT: The answer is stricken in its entirety. The jury is to disregard. Ask the question again.
MR. CLARKE: Dr. Gerdes, listen to my question carefully. As far as the potential of cross-contamination of this item that you described on your direct testimony--
DR. GERDES: Uh-huh.
MR. CLARKE: --wouldn't it be important to know if Collin Yamauchi extracted DNA from all the swatches that were received or just some of them?
DR. GERDES: It would be important as to the potential of contamination from that point on, but that does not control for the entire process of what happened in terms of manipulation and handling at the crime scene prior to that.
MR. CLARKE: So your answer is it would be important?
DR. GERDES: It is one aspect.
MR. CLARKE: Dr. Gerdes, with regard to item no. 52, that is another blood drop at Bundy, correct?
DR. GERDES: Yes.
MR. CLARKE: Can you describe for us the history of that item?
DR. GERDES: That is--I believe I already have. It is in that same exact sequence.
MR. CLARKE: All right. Can you tell us how many swatches were collected for item no. 52?
DR. GERDES: I don't have that information with me.
MR. SCHECK: Your Honor, may the witness have papers to refresh his recollection?
THE COURT: Do you have them to refresh his recollection?
MR. SCHECK: Of course. Right here.
MR. CLARKE: Well, I'm sorry, I think I'm given the right to ask questions.
MR. SCHECK: Your Honor, my objection is to this process. He says he doesn't recollect.
MR. CLARKE: Objection.
THE COURT: Sit down. Sit down. Proceed.
MR. CLARKE: You don't recall independently how many swatches were collected for item no. 52, correct?
DR. GERDES: That's correct.
MR. CLARKE: With regard to that particular item, RFLP results were obtained by Cellmark, correct?
DR. GERDES: That's correct.
MR. CLARKE: With regard to the potential of cross-contamination that you described two days ago, wouldn't it be important to know how many swatches of the ones that were collected were extracted by Collin Yamauchi for DNA?
DR. GERDES: No.
MR. CLARKE: So item 52 is different from item 50.
DR. GERDES: No. What I'm saying is I tried to explain it and that is that you basically--doesn't matter how many swatches, those swatches were all handled together. The number doesn't matter.
MR. CLARKE: Dr. Gerdes, isn't it true some of those swatches were never processed to extract DNA by Collin Yamauchi?
DR. GERDES: They were all manipulated to be bindled.
MR. CLARKE: Dr. Gerdes, isn't it true not all of those swatches were extracted for their DNA content by Mr. Yamauchi?
DR. GERDES: Again, it doesn't matter.
MR. CLARKE: Objection, move to strike.
THE COURT: Ask the question for the third time. Doctor, answer the question.
DR. GERDES: Yes.
MR. CLARKE: Dr. Gerdes, isn't it true Collin Yamauchi did not extract DNA from all of those swatches from the Bundy blood drops?
DR. GERDES: Some of those were extracted from different individuals at different labs.
MR. CLARKE: Collin Yamauchi didn't extract DNA from some of those samples, correct?
DR. GERDES: Correct.
MR. CLARKE: Your Honor, I have a series of slides that I would ask to be marked as--
THE COURT: Proceed.
MR. CLARKE: --People's next order.
THE CLERK: 564.
THE COURT: 564. Do you want the series as 564?
MR. CLARKE: Thank you. And I have previously shown them to counsel and I would ask that the first one be displayed.
(Peo's 564 for id = series of slides)
THE COURT: Proceed.
MR. CLARKE: Now, Dr. Gerdes calling your attention to--can you see the slide?
DR. GERDES: May I step down, your Honor? That would be easier from down here.
THE COURT: Sure.
MR. CLARKE: For the record, your Honor, this first slide that will be part of People's 564, does the Court wish them to be lettered individually?
THE COURT: Yes.
MR. CLARKE: All right. This would be 564-A entitled "Replicate DQA testing of items, 48, 50, 52."
(Peo's 564-A for id = slide)
MR. CLARKE: And for purposes of describing this slide A, Dr. Gerdes, does it basically have what appear to be two symbols or a house or building?
DR. GERDES: Yes.
MR. CLARKE: The bottom of which is labeled "EPR" and the notation to the left "6/13 drying."
DR. GERDES: Yes, I see that.
MR. CLARKE: And then an arrow to an icon or symbol again labeled "EPR" and to the left labeled "6/14 sampling"?
DR. GERDES: That is what it says.
MR. CLARKE: All right. Is it correct then that with regard to those three items, that they were in fact dried in the evidence processing room or EPR on June 13th, that drying process began?
DR. GERDES: That's true.
MR. CLARKE: And is it also true that on the next day, June 14th, in the same room, the evidence processing room, that those particular or at least one of those particular swatches from those samples were sampled by Mr. Yamauchi?
DR. GERDES: That's true.
MR. CLARKE: Is that consistent with your understanding of the events in this case?
DR. GERDES: That is my understanding.
MR. CLARKE: All right. Your Honor, with the Court's permission I would like to display the next slide which would be B.
(Peo's 564-B for id = slide)
MR. CLARKE: And B for the record contains a symbol.
THE COURT: Additional icon marked "Serology."
MR. CLARKE: Thank you.
MR. CLARKE: Now, Dr. Gerdes, isn't it correct that from June 14th and in particular from that portion of the samples from items 48, 50 and 52 which were sampled by Mr. Yamauchi, that they went into the serology section and DNA was extracted by Mr. Yamauchi?
DR. GERDES: That's correct, as I understand it.
MR. CLARKE: It is your understanding also that what went on June--excuse me--that what went from the evidence processing room to the serology room was not all of the swatches that were in fact collected on June 13th?
DR. GERDES: That's my understanding.
MR. CLARKE: All right. Then if we could have what will be labeled exhibit C, I'm sorry, slide C.
(Peo's 564-C for id = slide)
MR. CLARKE: MR. CLARKE: Which has added another symbol labeled "Parker Center."
DR. GERDES: Yes.
MR. CLARKE: Is it also correct that as part of the DNA typing process of portions of some of the swatches, that following the extraction of DNA that DNA that had been extracted by Mr. Yamauchi was taken to Parker Center for the amplification portion of the test?
DR. GERDES: That's true.
MR. CLARKE: And in fact that amplification portion also includes the development of the strips so that results can be read, right?
DR. GERDES: That's true.
MR. CLARKE: And even photography as well to record those results so that they can be reviewed later?
DR. GERDES: That's true.
MR. CLARKE: Is this in fact, slide C, an accurate representation of the chain of events for a portion of some of the swatches of items 48, 50 and 52?
DR. GERDES: It is.
MR. CLARKE: All right. Slide D then with the Court's permission.
THE COURT: Yes.
(Peo's 564-D for id = slide)
MR. CLARKE: What this slide has added, Dr. Gerdes, is two symbols to the right of the June 14th sampling EPR symbol which read "ECU and serology," correct?
DR. GERDES: That's what it says, yes.
MR. CLARKE: And is it--it is true, is it not, that portions of the remaining swatches not sampled, not extracted by Collin Yamauchi, were sent to the evidence control unit?
DR. GERDES: I believe that is true.
MR. CLARKE: Portions of those remaining portions were returned to the serology unit for purposes of shipment; isn't that correct?
DR. GERDES: On that date?
MR. CLARKE: No. As far as the date, I don't want to you assume that it was on June 14th that the sampling date occurred.
DR. GERDES: At a later date, that's true.
MR. CLARKE: All right. And your Honor, I it will be slide E.
(Peo's 564-E for id = slide)
MR. CLARKE: You described, Dr. Gerdes, and I believe you described the date of June 4th that again portions of the original swatches were sent to Cellmark, correct?
DR. GERDES: That's correct.
THE COURT: We're talking 48, 50 and 52 still, correct.
MR. CLARKE: And that would be true for items 50?
MR. SCHECK: Your Honor, I would object to the term "Portions" as opposed to "Swatches."
THE COURT: Swatches.
MR. CLARKE: All right. Dr. Gerdes, what was sent as far as items 48, 50 and 52 to Cellmark that you described I believe on June 4th?
DR. GERDES: They were swatches of those particular items.
MR. CLARKE: Those were not swatches that Collin Yamauchi had extracted DNA from, were they?
DR. GERDES: They are not the--the swatches that he extracted DNA from, no.
MR. CLARKE: All right. Then slide F, your Honor.
(Peo's 564-F for id = slide)
MR. CLARKE: And I believe it could be characterized as including an arrow down from the symbol Cellmark to a circle containing DOJ.
MR. CLARKE: Is that a fair description, doctor?
DR. GERDES: Yes.
MR. CLARKE: With regard to item no. 52, it is correct, is it not, that a swatch or swatches were sent from Cellmark to the Department of Justice for testing, correct?
DR. GERDES: I believe that's true.
MR. CLARKE: And in fact were ultimately typed by the Department of Justice?
DR. GERDES: Yes.
MR. CLARKE: Dr. Gerdes, with regard to those samples, and I'm referring to the swatches that were never extracted by Collin Yamauchi, they were never subjected to cross-contamination that you have described that can occur during the extraction of DNA process, correct?
DR. GERDES: They were not subjected to that at that third step in the process.
MR. CLARKE: In other words, the swatches that went to Cellmark and the Department of Justice, and I'm referring now to the arrows that go right as well as to Cellmark and DOJ, they were never subjected to any of those steps by Collin Yamauchi to remove DNA?
DR. GERDES: Not at the extraction stage, but there are earlier stages.
MR. CLARKE: Objection, move to strike the answer, your Honor; nonresponsive.
THE COURT: Sustained. Ask the question again.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Gerdes, isn't it true that what you described yesterday, actually day before yesterday, about what might have happened to those samples that went to Cellmark and DOJ as far as DNA extraction cross-contamination could not have happened?
DR. GERDES: I wouldn't state it--if you restrict it to only the extraction stage, that is true.
MR. CLARKE: You have described the extraction stage as one of those stages that cross-contamination can occur, correct?
DR. GERDES: That's correct.
MR. CLARKE: It could not have happened with the Cellmark and DOJ samples, correct?
DR. GERDES: Not at the extraction stage.
MR. CLARKE: All right. Perhaps you could have a seat again, doctor. Thank you.
DR. GERDES: (Witness complies.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Incidentally, Dr. Gerdes, none of these samples went to simply one laboratory, correct?
DR. GERDES: All of the samples--excuse me. All of the samples went to LAPD, went through LAPD first.
MR. CLARKE: Well, objection, move to strike, nonresponsive.
THE COURT: Ask the question again.
MR. CLARKE: Dr. Gerdes, isn't it true that none of these samples were typed by one laboratory only?
DR. GERDES: Of these three items you are talking about?
MR. CLARKE: Correct.
DR. GERDES: They were all typed by more than one lab.
MR. CLARKE: They were typed by three different laboratories, correct?
DR. GERDES: That's correct.
MR. CLARKE: And they were typed using swatches that weren't even typed by LAPD as far as Cellmark and DOJ?
DR. GERDES: Could you repeat that?
MR. CLARKE: Sure. As far as the swatches typed by Cellmark and the Department of Justice, those swatches weren't even typed by the Los Angeles Police Department, correct?
DR. GERDES: Those swatches?
MR. CLARKE: The individual swatches?
DR. GERDES: The items were; the swatches weren't.
MR. CLARKE: Incidentally, as far as the results from items 48, 50 and 52, and I'm referring to the DNA results, they all could have come from Mr. Simpson, correct?
DR. GERDES: In terms of what is reported as results?
MR. CLARKE: In terms of--
DR. GERDES: Yes.
MR. CLARKE: In terms of what was reported by the LAPD?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: That's definitely true for item 52 for LAPD. That is true for item 50. The reason I'm checking is that there were some with very faint C dots that they didn't call. Yes, that is true for that third item, too.
MR. CLARKE: So items, 48, 50 and 52 all revealed DNA results by the Los Angeles Police Department consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: As far as Cellmark was concerned, they tested all three items as well, didn't they?
DR. GERDES: Yes.
MR. CLARKE: Those results were all consistent with Mr. Simpson, correct?
DR. GERDES: They were.
MR. CLARKE: As far as items 48, 50 and 52 by Gary Sims and the Department of Justice, those results with all consistent with Mr. Simpson, correct?
DR. GERDES: That's correct.
MR. CLARKE: Now, you suggested day before yesterday that there might have been cross-contamination of certain evidence items other than 48 through 52, correct?
DR. GERDES: Yes.
MR. CLARKE: Dr. Gerdes, isn't it true there are evidence items in this case that were never even touched by Collin Yamauchi?
DR. GERDES: The--yes, that is true.
MR. CLARKE: Isn't it true there are evidence items never even touched by Dennis Fung?
DR. GERDES: They are all going through the same laboratory.
MR. CLARKE: Objection, nonresponsive, move to strike.
THE COURT: Sustained. The answer is stricken.
DR. GERDES: There are some items, yes.
MR. CLARKE: There are items never been touched by Dennis Fung; isn't that correct?
DR. GERDES: That's true.
MR. CLARKE: There are evidence samples never been touched by Andrea Mazzola?
DR. GERDES: That's true.
MR. CLARKE: There are evidence items that have never even been typed for PCR by the Los Angeles Police Department but have been typed by Cellmark or the Department of Justice?
DR. GERDES: As far as typing, that is true.
MR. CLARKE: As far as those samples that have not been touched by Collin Yamauchi, Dennis Fung and Andrea Mazzola, tell us which samples are those?
DR. GERDES: Again, I don't have my notes on that section of--of the chain of custody, and basically I'm basing that on what I recall from their testimony.
MR. CLARKE: Okay. Wouldn't it be important to know who touched certain items as far as collecting evidence, let's say, as far as the potential of cross-contamination?
DR. GERDES: It would--it might be important in terms of tracing it to a single individual, but basically I didn't attempt to trace it to a single individual. It is traced to--what the point is, is there is--from looking at any of those individuals and the record of the laboratory in terms of contamination, there is substantial risk, and I have no confidence--
MR. CLARKE: Objection, move to strike, nonresponsive.
THE COURT: Overruled.
DR. GERDES: And so therefore I did not attempt.
THE COURT: That is the end. Next question?
DR. GERDES: Excuse me.
MR. CLARKE: May I have a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Gerdes, as far as the potential of cross-contaminating another sample, it is different to extract DNA from it than it is to simply package it for shipment in terms of this risk of contamination of individuals?
THE COURT: We have already asked that question.
MR. CLARKE: All right.
MR. CLARKE: As far as these samples that were not processed by any of these individuals--and I have mentioned Collin Yamauchi, Dennis Fung and Andrea Mazzola, correct?
DR. GERDES: Yes.
MR. CLARKE: As far as all of those samples, you cannot recall now which samples those are; is that right?
DR. GERDES: I have a clear--I know that the samples which are the Bundy blood drops, the Rockingham glove and Mr. Simpson's reference sample were handled by Collin Yamauchi. I have a definite absolute positive--I'm positive of that. As far as other samples, such as the sock and perhaps some of the--the other items, I don't have as clear of a recall--recollection of those.
MR. CLARKE: You discussed during your direct examination three items removed from the Bronco automobile, items no. 303, 304 and 305. Do you recall that?
DR. GERDES: I do.
MR. CLARKE: Can you describe for us the history of those items?
DR. GERDES: Yes. Those were collected in June, June 14th, I believe, and those were processed, umm, and extracted on June 15th.
MR. CLARKE: Who collected those items, 303, 304 and 305, and I'm referring to collecting the bloodstains?
DR. GERDES: Umm--
MR. SCHECK: Your Honor, which--
MR. CLARKE: Excuse me. Objection, your Honor, speaking objection.
THE COURT: Sustained.
MR. CLARKE: I'm sorry.
THE COURT: Proceed.
DR. GERDES: I don't recall who collected them out of the Bronco itself.
MR. CLARKE: So you don't recall who collected them on June 14th?
DR. GERDES: No.
MR. CLARKE: Who typed them?
DR. GERDES: They were typed by Collin Yamauchi on the 15th of June.
MR. CLARKE: What were the results by Mr. Yamauchi from items 303, 304 and 305?
DR. GERDES: 303?
MR. CLARKE: 303, 304 and 305?
DR. GERDES: I'm sorry, I thought you were talking about the earlier items, 23, 25--okay.
MR. CLARKE: I'm sorry, you thought when I said 303--
DR. GERDES: 303.
MR. CLARKE: You thought I said 23 and 25?
DR. GERDES: I'm sorry, I'm--let me back up. The items 303--those were collected in--those were the items that were later collected from the Bronco console, so those were the items that were collected at a later date.
MR. CLARKE: When were they collected?
DR. GERDES: In--I believe it was in July. I don't recall the exact date.
MR. CLARKE: It is actually in August, isn't it, Dr. Gerdes?
DR. GERDES: Yes, July or August.
MR. CLARKE: So these three samples, 303, 304 and 305 were not collected in June of 1994?
DR. GERDES: No, they were collected in July or August, excuse me.
MR. CLARKE: They were collected over two months later, weren't they?
DR. GERDES: They were.
MR. CLARKE: You do not recall who collected those samples?
DR. GERDES: Not the individual.
MR. CLARKE: All right. What can you tell us about the sequence of events following that--
DR. GERDES: I'm sorry, I do recall who collected them; Collin Yamauchi.
MR. CLARKE: Is it your testimony that Collin Yamauchi collected the stains from the console 303, 304 and 305?
DR. GERDES: I am not absolutely sure, but I think that is who did that. I don't have the notes with me.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Gerdes, isn't it important to know who collected these items in view of your testimony about the potential of cross-contamination?
DR. GERDES: Not in my opinion. Basically it is important how they were collected; not who collected them.
MR. CLARKE: Isn't it true Michele Kestler collected those samples?
DR. GERDES: That may be.
MR. CLARKE: In your opinion that makes no difference?
DR. GERDES: It makes--I have observed the testimony of each of these individuals on their procedures as to how they collect items. In my opinion none of the individuals are collecting these in a manner that a microbiologist would consider safe and therefore I don't recall the details frequently on who did it. They are all equally risky.
MR. CLARKE: So it is your testimony that all of the individuals in this case and who have been involved in collecting evidence are all risky as you have used the term?
DR. GERDES: In terms of what they've described as their collection methods at the crime scene, yes.
MR. CLARKE: As far as 303, 304 and 305, what are the sequence of events after their collection?
DR. GERDES: Okay. Those items were sent to the Department of Justice after being processed at the LAPD and they were received there on September 26th.
MR. CLARKE: Were these samples typed by the Los Angeles Police Department?
DR. GERDES: No.
MR. CLARKE: Did they have DNA extracted by the Los Angeles Police Department?
DR. GERDES: No.
MR. CLARKE: Were they processed as far as any steps in preparation to extract DNA, for instance, in the serology section of the Los Angeles Police Department?
DR. GERDES: They were processed in terms of bindling and packaging.
MR. CLARKE: Now, those samples were then typed, correct, by the Department of Justice?
DR. GERDES: Correct.
MR. CLARKE: All right. Your Honor, I have a slide actually in the form of a copy to place on the elmo that I would ask be marked as the People's next exhibit in order, a copy of which I have provided to the Defense.
THE COURT: 565.
MR. CLARKE: 565.
(Peo's 565 for id = slide)
DR. GERDES: May I step down, your Honor?
THE COURT: Yes.
MR. CLARKE: All right. Dr. Gerdes, perhaps this item can be described as a title "DNA testing of items 303, 304, 305 Bronco console."
DR. GERDES: Yes.
THE COURT: Is this--is this something known as a flow chart?
MR. CLARKE: Yes. I think that would be a good description, flow chart.
MR. CLARKE: Now, the first box to the left, Dr. Gerdes, describes "Bronco console removed during search"; is that correct?
DR. GERDES: Yes, yes.
MR. CLARKE: With a date of August 26th, 1994?
DR. GERDES: Yes.
MR. CLARKE: And to your--from your review of the record does that appear to be an accurate description of what occurred on that date?
DR. GERDES: That is--yes.
MR. CLARKE: The flow chart then has a second box to the right labeled "September 1, `94" and inside that box swatches made from console in serology, correct?
DR. GERDES: Yes.
MR. CLARKE: And does that in fact describe accurately what occurred with regard to items 303, 304 and 305?
DR. GERDES: I believe that does, yes.
MR. CLARKE: Your only hesitation; is that right, is just as to the date?
DR. GERDES: That's right. I didn't remember the date.
MR. CLARKE: The next box then shows "Swatches sent to Department of Justice 9/26/94"; is that right?
DR. GERDES: I don't recall the date exactly, but I believe I just read that off, so yes.
MR. CLARKE: And as far as--
DR. GERDES: That is what I just said, yes.
MR. CLARKE: As far as you know that is accurate?
DR. GERDES: Yes.
MR. CLARKE: And then the next box shows "11/22/94 no. 305 returned to LAPD"?
DR. GERDES: Correct.
MR. CLARKE: Had the Department of Justice done anything with regard to item no. 305 as of November 22nd, 1994?
DR. GERDES: I would have to check my notes, but--let me check.
MR. CLARKE: All right. Would you please, if that would refresh your memory.
DR. GERDES: (Witness complies.)
MR. SCHECK: Your Honor, could we approach for a minute on something?
THE COURT: On this exhibit?
MR. SCHECK: What? We have to discuss--
THE COURT: With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar.
MR. SCHECK: Something I didn't notice about this chart yesterday, and that is, is that the last box says "RFLP testing going on today." I know that, but through Dr. Blake, of course, and we have discussed this issue. There are no notes of this witness because there is no written documentation of that, and I would ask that no questions be asked with respect to that since that is a legal issue to be resolve in the future.
THE COURT: You don't intend on going into that, do you?
MR. CLARKE: Well, I think it is appropriate to ask a hypothetical about would those reports be significant as far as his allegations about the potential of cross-contamination.
MR. SCHECK: No.
MR. CLARKE: I think it is extremely important.
MR. SCHECK: I would object to that. I think that is an issue that that is to be resolved as to whether or not that can come into evidence on rebuttal. I don't think this is the time or place. That was something that was--I think the Court had indicated and the parties had agreed that that was going to be addressed at another time.
THE COURT: Yes.
MR. CLARKE: Well, then we need to resolve it I think. That is an important area for purposes of this witness.
MR. SCHECK: When it comes time that you try to offer anything on that and I get report on that and the Court makes a decision whether that is proper rebuttal, that is one thing, but I think it is unfair to do it in this fashion.
MR. CLARKE: There was no objection to this chart.
MR. SCHECK: I didn't see that last box. I am raising it right now. It was quick.
MR. CLARKE: I think--
MR. SCHECK: In deference to certain things that were going on yesterday, I wanted to make that as quick as possible. My error in not looking at that, I agree, but this is a timely objection in terms of him being able to go into it.
MR. CLARKE: We are prepared to argue that and I think it is very important, and if at the break it is appropriate, that is fine.
THE COURT: All right. No questioning until we've had argument on that.
MR. CLARKE: Would the Court like me to proceed and stop before that box?
THE COURT: Yes. Let's do that.
(The following proceedings were held in open court:)
THE COURT: All right. Mr. Clarke.
MR. CLARKE: I think we are waiting for the witness to locate information.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: Item 305 from the LAPD was received by--
THE COURT: Dr. Gerdes, you are going to have to tell the jury.
DR. GERDES: All right. Excuse me. According to the report from Department of Justice they received that on September 7th, item 305.
MR. CLARKE: Dr. Gerdes, are you having a little trouble finding some of these details in your notes about the specific--
DR. GERDES: Well, there is--
MR. CLARKE: I'm sorry, doctor?
DR. GERDES: There is a tremendous amount of data here and I apologize to the Court, but it is a tremendous amount of data and it is hard to be able to locate these in a short period of time.
MR. CLARKE: All right. Dr. Gerdes, is it fair to say that you are having some difficulty retrieving some of the information about the history of these three samples? Is that fair?
DR. GERDES: I think as far as the exact dates and that sort of thing, yes; as far as the general history, no.
MR. CLARKE: Would it be fair to say that the vast majority of the $30,000 that your laboratory has billed in this case or will bill was spent looking at the validation studies by the Los Angeles Police Department and not the specific facts and acts in this case?
DR. GERDES: I don't think that would be fair to say, no.
MR. CLARKE: With regard to item no. 305--and it is your testimony that the swatch--swatches were sent to the Department of Justice on what date?
DR. GERDES: September 7th. On the Department of Justice report it says that LAPD item 305, when they renamed DNA 30, was received on September 7th, 1994, by Mr. Stevens, and I have a slot-blot result on that item on 9/23/94 by Renee Montgomery and a D1S80 result on DNA 30 on 10/17/94.
MR. CLARKE: All right. As far as the date then you believe instead of September 26th it should be September 1st?
DR. GERDES: September 7th.
MR. CLARKE: 7th, I'm sorry. As far as that item, after it was received at the Department of Justice--and you have just described some DNA typing steps that were taken with regard to 305, correct?
DR. GERDES: Correct.
MR. CLARKE: Did it or was it later returned, the remaining sample from 305, to the Los Angeles Police Department as is reflected in the next box on the flow chart?
DR. GERDES: I believe some of it was, yes.
MR. CLARKE: Did there also come a time in the flow chart makes a--comes down and makes a left turn and starts a second row, correct?
DR. GERDES: Yes. I will have to get down--
MR. CLARKE: That would be easier, that is fine.
DR. GERDES: (Witness complies.)
MR. CLARKE: What is noted as the date, "March 9, 1995, no. 305 returned to DOJ"; is that right?
DR. GERDES: Yes.
MR. CLARKE: And is that in fact an accurate description of what occurred?
DR. GERDES: I believe so.
MR. CLARKE: There is then a notation on the same date that all items were returned to LAPD; is that correct?
DR. GERDES: At sometime they did that. I'm not sure of the date.
MR. CLARKE: Okay. You are just not sure of the date of March 9, but in fact 303, 304 and 305 were returned to the Los Angeles Police Department, correct?
DR. GERDES: Correct.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, would this be an appropriate time to stop on the chart?
THE COURT: Yes.
MR. CLARKE: All right.
THE COURT: Ladies and gentlemen, let me ask you--I need to take up an issue out of your presence. Will you please step into the jury room and we will summon you out shortly.
(At 10:06 A.M. the jury exited the courtroom and the following proceedings were held in open court:)
THE COURT: All right. The record should reflect that all the jurors have withdrawn from the courtroom. Counsel, my understanding is that there is an objection by the Defense to mention of the combined swatches, RFLP testing that is being conducted by the Department of Justice, and that objection is based upon the fact that the Defense has all along asked for permission or access to those swatches to do its own testing, that these swatches have continuously been in the possession of the Prosecution or their testing agencies and not available to the Defense for their own testing, that months ago, and I don't recollect the specific date, the Court gave the Prosecution permission to continue their testing as to these items 303, 304 and 305, the Bronco console swatches that were taken in August. The Court gave permission to the Prosecution to combine those swatches and to conduct--to attempt to conduct RFLP testing, and that it was anticipated that because of the low amount of DNA that was there that this process would likely take a considerable period of time. My understanding is that there is a Defense objection, because the Department of Justice, despite the Court's permission, did not actually commence this testing for a significant period of time approaching two months, and that this result, the RFLP results are therefore not appropriate to be presented by the Prosecution in their case in chief, one, because obviously they have concluded their case in chief, and two, because of the unexplained and unjustified delay in the starting of the RFLP testing. That is my understanding of your argument.
MR. SCHECK: Well, that is the beginning of it, but the full thrust of this, and it is a simple one I think we can resolve at the moment, and that is that whether or not this evidence--and first of all, there is no results reported, so we are talking only about a process that is ongoing. Whether or not these results would be admissible in the Prosecution's rebuttal case is a question which I'm certain the Court had agreed and the parties had agreed would be dealt with at that time. In fact, I think your words were "This is a problem I don't have to deal with yet," and the results aren't even here yet. It was my mistake that yesterday--this was not--
They gave us copies, Xeroxed copies of all the charts except for these last two flow charts, and when I looked at the flow charts I actually pointed out to Mr. Harmon that on another one concerning the carpet they made a mistake on a date, but I did not notice these last two boxes because when my eyes glazed over it I thought it was just the history of the sample. I didn't see the last two boxes. And it was my mistake and I didn't realize therefore they were going to try to raise the fact that there was RFLP testing ongoing. Now, this witness--frankly, there is no documentation, no written documentation of this, in other words, the testing that is ongoing, and he has no knowledge of it, obviously, because we have no reported results. So I believe that it is improper at this time for the Prosecution to ask a question of this witness, well--which is what they intend to do--well, if there were an RFLP result on the combined Bronco stains would that change your opinion with respect to these samples? Because I don't think there has been any ruling and there shouldn't be a ruling until we reach the point where they try to offer rebuttal.
THE COURT: Isn't it answer likely to be, well, because these were PCR swatches first any contamination that is attended to those and these swatches are inherently suspect because they were left in the environment until August? I mean, isn't that a pretty simple answer?
MR. SCHECK: Well, no, because as the end of my direct examination indicated and as what is going to be going on, I'm certain in the rest of Mr. Clarke's cross-examination, is that there are differences as to each individual item. I anticipate--well, on direct examination Dr. Gerdes indicated that he did not have a quarrel and did not believe cross-contamination could be a problem with a whole series of RFLP results in this case for two reasons: No. 1, the amount of DNA involved in the RFLP test approaching a hundred nanograms was so high that cross-contamination was not a likely explanation; and no. 2, in terms of the history of the samples, those samples were not processed in the presence of a reference sample from the person or persons who the typing came back to. And Dr. Gerdes' testimony on the RFLP on cross-contamination is limited to no. 52 handled in the evidence processing room.
THE COURT: So you are anticipating that Mr. Clarke is going to say now if these results were corroborated by RFLP then you would have the same non-objection?
MR. SCHECK: I'm sorry?
THE COURT: Is that what you are anticipating?
MR. SCHECK: I'm anticipating he is going to ask him if these results were corroborated by an RFLP would you--right. And the point is we don't have the data from that RFLP, we haven't seen it, and so no scientific evaluation can be made, that is no. 1, so it is an unfair question in that respect, and no. 2, we have a whole argument here about whether that would be proper rebuttal given the nature of this testimony, which is not an issue that should be broached now. The only reason it is even being broached now, frankly, was my inadvertence in seeing a box on this chart that says "RFLP testing ongoing today." And even if the Court were to allow him to ask a question about that box, he shouldn't be able to ask any more questions about test results that have not yet been reported, that have not yet been performed. It is totally speculative, and frankly, it is dirty pool. My mistake for--for not observing that box, but it violates everything we had agreed to previously.
THE COURT: Well, counsel, let's--you know, I--it is not dirty pool if it was given to you and you had the opportunity to see it.
MR. SCHECK: My mistake on that. I'm just saying that I didn't notice it and I'm confident that--
THE COURT: I'm not tolerating any more of this stuff.
MR. SCHECK: Which stuff?
THE COURT: Disparagement of the other side.
MR. SCHECK: Oh.
THE COURT: So let's not do that.
MR. SCHECK: Your Honor, my apologies for that. I think my record is pretty clean in that. I don't do that.
THE COURT: All right. But the thing is it is not dirty pool if you were shown that.
MR. SCHECK: I missed that, but I'm saying it, I should have noted it because plainly it was something that we had agreed to take up at another time.
THE COURT: Okay. Mr. Harmon.
MR. HARMON: We had agreed to take it up at another time and they have raised the specter of it I think two weeks ago, and we've been willing to do it whenever they wanted to bring it up. I think the Court recalls the context of, you know--Mr. Scheck always says, well, we are going to bring this up, we are going to bring this up.
THE COURT: Mr. Harmon, let me stop you. First of all--
MR. HARMON: I'm sorry.
THE COURT: Good morning.
MR. HARMON: Good morning.
THE COURT: Secondly, what is the status of the RFLP testing?
MR. HARMON: I probably should have told you that.
THE COURT: That would be nice to know.
MR. HARMON: I apologize. We have now produced a three-probe RFLP match which shows a mixture which is consistent with the blood of the Defendant, Mr. Simpson, and the blood of Ronald Goldman, and however much time permits, we will continue to probe it and if suddenly we exclude that on the fourth or fifth probe, that will be fine, but that is highly unlikely, so that is what they fear, the other shoe. I can address the timing, I can address any of the issues there. It sounds like the biggest complaint right now is we don't have to deal with it yet, and I can't speak for Mr. Clarke. This is a little awkward. I'm arguing this issue in the context of his witness, but the intention only was to ask a hypothetical which is based on what in fact has been done, and I just need to clarify, when Mr. Scheck says we haven't seen it, he is obviously excluding the guy who has never been in the blue chair, Dr. Blake, because he has seen all this stuff, he has had access to it. I don't know if he has seen the third probe. He had an appointment two days ago and he couldn't show, but he knows these results. He has had access to it. If he has failed to communicate with them--we know he doesn't talk for Dr. Gerdes very much--so that is not our fault. They have known what these results are. They know the instant they are available. And so I don't think that is a legitimate legal complaint and I don't think that is a sincere statement because it is not in fact what is going on with this case. Umm, we do have to deal with it? They have wanted to deal with it. As you recall, it has come up a couple times and as recently as I think last Wednesday Miss Clark informed me that we were going to do it Thursday morning, and I spent hours on the phone with Mr. Sims that night working out the chronology of it, and then for whatever reason they chose not to bring it up. I think this is a tactical decision. So I can address timing. I would like to clarify that they have had access to whatever remains of those since March, because we proceeded with the Court's permission with the combination of those samples back in March, and I can't tell you right now what remains, but I know I'm almost positive at least one swatch has always remained from 305, I'm not certain on that. So the idea that they have been denied access is not true, it is not the reality, it is not the case. I can explain the whole chronology, but that doesn't seem to be the basis for the objection. The objection seems to be we don't have to deal with it yet because it is not proper for rebuttal, and we say, well, we just want to ask a hypothetical that is based on the reality of it so we don't have to drag Dr. Gerdes back here and confront him with it, so I think I've addressed the specific basis for their objection today. I would be happy to discuss any of the other issues that I thought were germane, but I don't see that there is a need to. We would just like to ask him, because obviously they seem to have conceded that the stuff in the console may have been, you know, may have been from some phantom, but it has nothing to do with this case, so those results they seemed to have conceded the legitimacy. And there has been absolutely no discussion by Dr. Gerdes on a technical basis of any complaints about what is there, and in fact the results are corroborative, totally corroborative of the relative intensities of the mixtures.
THE COURT: No. He has testified to his concerns that those samples were left out in the environment and unprotected and he has expressed a lot of concerns about that, about the Bronco stains.
MR. HARMON: I don't recall them being specific to those stains.
THE COURT: That pretty much covers it, wouldn't you say?
MR. HARMON: Sure, unless somebody planted them on August 25th and then they weren't out there very long, so I guess that is the alternative theory that still persists to today.
THE COURT: Yeah, but then there would be EDTA in it, wouldn't there?
MR. HARMON: Until--you know where that goes.
THE COURT: Okay. We have been down that road already.
MR. HARMON: Yes.
THE COURT: All right. Mr. Scheck.
MR. SCHECK: Well, I think that the argument admits too much. They want to ask him a hypothetical question about a set of test results that haven't been reported. We don't have any quantifications on the amount of DNA in those results. The results as Mr. Harmon indicates are not--the testing isn't even completed, so it seems to me that it is highly improper and it ought to be dealt with at the appropriate time. I appreciate concerns about this, sure, because I knew the testing was ongoing and I don't agree with his characterization of the results, frankly, from what I've been told.
THE COURT: I'm going to sustain the objection to the proposed hypothetical question regarding RFLP testing at this point for this reason: I still have the concern about the delay in the starting of the testing and whether or not any RFLP results will be admissible before this jury. That is an issue that is yet to be resolved. The Prosecution still has the ability to call--recall one of their expert witnesses to say--to evaluate Dr. Gerdes' testimony that RFLP testing, given a high amount of DNA availability, will corroborate the other results. Do you agree with that, do you agree with that, with regards to this particular result, 305 from the Bronco? So they have the ability to present that evidence in an affirmative manner before the jury, so I will sustain the objection to a proposed hypothetical question. And having said that, let's take our break for fifteen at this point.
(Recess.)
(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. The record should reflect we have been rejoined by all the members of our jury panel. Dr. John Gerdes is on the witness stand undergoing cross-examination by Mr. Clarke. Mr. Clarke, you may continue.
MR. CLARKE: Thank you, your Honor. Good morning again, ladies and gentlemen.
THE JURY: Good morning.
MR. CLARKE: Dr. Gerdes, the day before yesterday you criticized the results from the console of the Bronco, items no. 30 and 31, correct?
DR. GERDES: Correct.
MR. CLARKE: It is correct, is it not, that items 303, 304 and 305 came from the same general area as items 30 and 31 on the console of the Bronco, correct?
DR. GERDES: That's correct.
MR. CLARKE: It is correct, is it not, that the DNA types obtained from items 303, 304 and 305, corroborate the results from 30 and 31?
DR. GERDES: That's correct.
MR. CLARKE: You didn't criticize day before yesterday or yesterday morning the PCR results obtained from items 303, 304 and 305, correct?
MR. SCHECK: Objection, misstates the testimony.
THE COURT: Sustained. Rephrase the question.
MR. CLARKE: Did you yesterday or the day before criticize the PCR results from items 303, 304 and 305?
DR. GERDES: I did.
MR. CLARKE: Incidentally, with regard to these validation strips, approximately how many did you look at, and I'm referring to not the specific results in this case, but the LAPD PCR strips?
DR. GERDES: The validation strips, how many did I look at?
MR. CLARKE: Approximately?
DR. GERDES: 1069.
MR. CLARKE: So a little over a thousand?
DR. GERDES: A little over a thousand.
MR. CLARKE: You looked at each of those individual strips?
DR. GERDES: I did.
MR. CLARKE: You looked at them carefully?
DR. GERDES: Yes.
MR. CLARKE: You would look at, for instance, the result reported by the Los Angeles Police Department analysts in those strips?
DR. GERDES: Yes.
MR. CLARKE: You would look at each of the individual strips and you would look--well, you would look at each of the individual strips, right?
DR. GERDES: That's correct.
MR. CLARKE: And you would look at each of the individual probes on each strip; is that right?
DR. GERDES: Each of the probes meaning the dot signals?
MR. CLARKE: Yes.
DR. GERDES: Yes.
MR. CLARKE: And you would look carefully at each of those individual dot locations?
DR. GERDES: Yes.
MR. CLARKE: Because you were looking to see if there was no dot indicated, right?
DR. GERDES: Correct.
MR. CLARKE: You were looking to see if there was, for instance, a bright dot on a particular probe, bright signal?
DR. GERDES: Basically only determined if I saw something as indicated on that or not. I didn't try to look at intensities.
MR. CLARKE: Well, you did in fact look at intensities on each of those strips, didn't you?
DR. GERDES: No. I simply looked at whether or not there was something present there that should not--first of all, I looked at the typing result and then determined--these are on--I assume you are talking about the known reference sample or exemplars. On those particular cases I would simply look at the typing result and then determine if there was human DNA, extra human DNA that would indicate another type there and that would mean any indication of a signal, faint or dark.
MR. CLARKE: Well, isn't it true that with regard to all of these strips, whether they are from a known person, an evidence sample, a proficiency test, that intensity is very important to look at?
DR. GERDES: It depends in which context.
MR. CLARKE: Well, isn't it--and haven't you already described the fact that the intensity of other dots in comparison to this C dot is very important to correctly interpret results?
DR. GERDES: The C dot is important to determine if there is a minimum amount of DNA required for a typeable result, but in the presence of any indication of a mixture it no longer can be used in interpretation because the--in the presence of more than one contributor the individual that has more DNA would light up the C dot and the individual with less DNA may or may not but would also be observable.
MR. CLARKE: Well, doctor, if you look at--let's take a proficiency test on a bloodstain from a sidewalk or from wherever. Isn't the intensity of the C dot very important for an analyst to look at?
DR. GERDES: In terms of determining if there is a minimum amount of that, yes.
MR. CLARKE: Isn't it important to compare the intensity of the C dot to any other dots that show up where there is a reaction?
DR. GERDES: It is important in terms of determining that there is a minimum amount of DNA and whether the typeable result is greater than that if one is assured that there is a single individual.
MR. CLARKE: Well, doesn't the user guide stress the importance of looking at reactions or dots and comparing their intensity to the C dot?
DR. GERDES: In terms of obtaining a typeable result from a single individual, yes.
MR. CLARKE: So it is important?
DR. GERDES: In that context, yes.
MR. CLARKE: How many dots or probes--in other words, how many different dots can there be on a sample if all the dots lit up?
DR. GERDES: Well, there would be the 1.1, 1.2, 1.3, the 2, 3, 4, the C dot, the 1.1, 1.2, 1.3 dot and the all but 1.3, so that is, what is it, 8?
MR. CLARKE: Isn't there another dot, the 1 dot?
DR. GERDES: Yeah, excuse me, I forgot the 1 dot.
MR. CLARKE: Perhaps--
DR. GERDES: Nine.
MR. CLARKE: Nine dots?
DR. GERDES: Yes.
MR. CLARKE: If you looked at over a thousand samples, you had to look at approximately 10,000 dots, didn't you?
DR. GERDES: Yes.
MR. CLARKE: Did you look at those dots carefully?
DR. GERDES: I did.
MR. CLARKE: Did you do it in any particular location?
DR. GERDES: I did it in numerous locations.
MR. CLARKE: So you did it a number of different times for each sample; is that right?
DR. GERDES: I did.
MR. CLARKE: So you look--would it be fair to say you looked at, what, at least 20,000 dots if you did them each more than once?
DR. GERDES: I believe I looked at those at least four times.
MR. CLARKE: So you looked at at least 40,000 different dots?
DR. GERDES: That's correct.
MR. CLARKE: Did you use a magnifying glass or anything of that nature?
DR. GERDES: No.
MR. CLARKE: Did you use any special lighting of any type?
DR. GERDES: I looked under different lighting conditions.
MR. CLARKE: How long would you look at each strip?
DR. GERDES: Oh, it doesn't take that long really, perhaps five or ten seconds.
MR. CLARKE: Is it your testimony that you can look at a DQ-Alpha typing strip and in five to ten seconds interpret the results?
DR. GERDES: Yes.
MR. CLARKE: Isn't it true that in interpreting a DQ-Alpha typing strip you have to look if there is any reactions, and if there is reactions, you have to look at them with regard to their intensity?
DR. GERDES: Again, I think I just explained that twice.
THE COURT: I think we did.
MR. CLARKE: Dr. Gerdes, isn't it true that to look at 40,000 different dots that would take weeks?
DR. GERDES: I have spent a lot of time on this case.
MR. CLARKE: And in fact your review of those dots--of those typing strips and the validation studies actually took months, didn't it?
DR. GERDES: Well, I didn't do it at a full-time, but basically over a period of months I looked at these, yes.
MR. CLARKE: Is it your testimony that all you needed was five to ten seconds to interpret each of these strips?
DR. GERDES: Or less.
MR. CLARKE: Less than five to ten seconds?
DR. GERDES: It doesn't take that long.
MR. CLARKE: Did you also--and you've described the fact that you were keeping track of your notes in a chart form or spread sheet or something like that?
DR. GERDES: Yes.
MR. CLARKE: And you obviously would take time to do that as well, correct?
DR. GERDES: To record what I observed, yes.
MR. CLARKE: And as you look at strips the second time, the third time and the fourth time, would you make changes to your chart?
DR. GERDES: Yes.
MR. CLARKE: So you were compiling and recompiling and recompiling?
DR. GERDES: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Incidentally, when you made changes, does that mean that there were mistakes that you made before that?
DR. GERDES: Not necessarily.
MR. CLARKE: Were there any instances in which you found that you had made mistakes in your chart?
DR. GERDES: There were instances on the first time or in the particular light there were faint--faint, I guess what the DOJ would call hints, that later on I would look back and I would have to make a decision as to whether or not that was real. And basically what I would do on the first run through is just note those areas where I had questions and I would go back and look at those. I mean, it was never recorded as an absolute result until the final report. They were recorded as questionable, look at this one, look at it again, go back until you finalize it.
MR. CLARKE: Isn't it true that in many instances of the various notations that you made on your chart about, quote, "Contaminants," that those included very faint dots?
DR. GERDES: There are faint dots on--I wouldn't say many, but on a--on a significant proportion of those perhaps, yes.
MR. CLARKE: Some of them were very hard to see; isn't that true?
DR. GERDES: Yes. And recall, most of those were recorded by the analyst, and I, as a second analyst, am at a disadvantage in that these strips fade after they dry, and so the analyst might have seen those at darker intensity than I could.
MR. CLARKE: How many case work samples did you review in this study of the May, `93, through August of `94, review?
DR. GERDES: There are substantial fewer case work samples.
MR. CLARKE: Can you give us a number or an approximate number?
DR. GERDES: An approximate number would be less than ten percent.
MR. CLARKE: So what number would that be, something under--
DR. GERDES: Less than a hundred.
MR. CLARKE: So something under a hundred case work samples?
DR. GERDES: Yes.
MR. CLARKE: Of the number of case work samples that you look at, how many did you determine in your opinion showed contamination?
DR. GERDES: I didn't include case work samples unless they were known reference samples or the positive controls or the negative controls.
MR. CLARKE: Is it your testimony that you can't determine from a case work sample whether or not there is contamination present?
DR. GERDES: That is true, because I don't know where that sample came from or what conditions it was collected--under which conditions it was collected, so it would be unfair to count those because it is not defined as having come from a single individual.
MR. CLARKE: So is it true that any case work sample, you cannot conclude there was contamination because you don't know the history of the sample?
DR. GERDES: It is true on those samples that are recorded as being evidence items. It is not true on the negative control or the extraction--the reagent blank or the positive control or items that were defined as being reference samples from a given individual.
MR. CLARKE: The samples tested in this case were evidence samples, correct?
DR. GERDES: Yes.
MR. CLARKE: And they were known samples from known individuals?
DR. GERDES: Yes.
MR. CLARKE: And then there were a series of controls you previously described, correct?
DR. GERDES: That's correct.
MR. CLARKE: All right. Your Honor, I have two photographs that I would ask to be marked as the next two exhibits.
THE COURT: 566 and 67.
(Peo's 566 for id = photograph) (Peo's 567 for id = photograph)
THE COURT: Have you shown those to Mr. Scheck?
MR. CLARKE: Yes.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: Mr. Clarke, did you show this to them previously?
MR. CLARKE: The Defense has a copy of them but they are just trying--
MR. SCHECK: Yes, we have.
THE COURT: Proceed.
MR. CLARKE: May I approach the witness, your Honor?
THE COURT: You may.
MR. CLARKE: Dr. Gerdes, showing you what will be, I am so sorry, People's exhibit I believe 566, I believe can be described as a DNA hybridization record photograph including both the documentary material and as well as a photograph of a series of strips?
DR. GERDES: That's correct.
MR. CLARKE: In particular does that relate to a hybridization no. 182 as to the first photograph?
DR. GERDES: It does.
MR. CLARKE: As to the second photograph which will be People's 567, does that appear to be a similar photograph relating to a hybridization record no. 184?
DR. GERDES: Yes, it does.
MR. CLARKE: Do those photographs appear to be accurate copies of the original documents and photographs that you saw at the Los Angeles Police Department?
DR. GERDES: If I could check for just one moment.
MR. CLARKE: Sure.
DR. GERDES: (Witness complies.) Yes, they appear to be the same.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. With the Court's permission I would like to use the first People's exhibit 566.
THE COURT: Yes.
MR. CLARKE: Now, just while we are at the board--doctor, would it be easier for you at the witness stand or would it be easier for you to come down to see what is projected?
DR. GERDES: I believe if I can operate from my photo, if I have to be back to the table to look at the recording, it would be best from here for the moment.
MR. CLARKE: That is fine. Just in terms of People's exhibit 566, this is hybridization record 182?
THE COURT: Can't read it.
MR. CLARKE: On the upper right-hand corner. Actually zoom in on the very top of the document.
THE COURT: How about the right-hand?
DR. GERDES: Over to the right-hand side. Yes, this is 182.
MR. CLARKE: And this is a series of eight strips that were run on May 6th, 1994?
DR. GERDES: Yes.
MR. CLARKE: And is this one of the, as we have used the term, validation studies that you looked at as part of your review?
DR. GERDES: These are some of the samples I have looked at, yes.
MR. CLARKE: The analyst in this case, or at least in the instance of these eight samples, was Collin Yamauchi?
DR. GERDES: Yes.
MR. CLARKE: And the confirming analyst was Erin Riley?
DR. GERDES: That's correct.
MR. CLARKE: Is it correct that none of these were case work samples?
DR. GERDES: That's correct.
MR. CLARKE: You identified in this particular set of eight samples two samples as containing contamination; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Would the--
DR. GERDES: Basically they were identified as contamination and/or DX.
MR. CLARKE: And that was, in your opinion, the result, that is, these reactions, of either contamination or this DX gene activity?
DR. GERDES: In these specific instances again these are 1 dot, they contain a 1 dot, so this is one of those cases where you can't tell.
MR. CLARKE: Could you tell us, in terms of the photographs that go from top to bottom, and let's start with the first one, which would be easier to start with, from your records?
DR. GERDES: In terms of which one was identified as a contaminant?
MR. CLARKE: Yes.
DR. GERDES: Let's start with no. 2.
MR. CLARKE: Okay. That would be the sample and perhaps we can zoom in on that horizontal strip. In fact, I don't know if you can tell, doctor, but in terms of talking about both samples, is this zooming point going to be enough to be able to describe both samples that you have offered opinions about?
DR. GERDES: Yes.
MR. CLARKE: All right. Now, the second sample down is labeled off to the far right "52-2"?
DR. GERDES: Yes.
MR. CLARKE: And the analyst noted a particular result with that sample; is that right?
DR. GERDES: That's correct.
MR. CLARKE: What did the analyst note?
DR. GERDES: A 1.2, 1.2 and then there is a notation that is difficult to read, but it says "With 1.1 very faint."
MR. CLARKE: Okay. That is actually written by the analyst off to the far right?
DR. GERDES: It is.
MR. CLARKE: Perhaps if we could just show that off to the right of that sample, I'm sorry, by going down in that the written portion.
MR. CLARKE: The results are actually written in; isn't that right, doctor?
DR. GERDES: That's correct.
THE COURT: I believe to the right.
DR. GERDES: You have to go to the right.
MR. CLARKE: And is that, Dr. Gerdes, when you look at the second row down, where you have described 1.2, 1.2, and then is that with--I'm sorry, weak 1.1?
DR. GERDES: That's correct. That is what that says.
MR. CLARKE: Okay. And in your opinion and what you have described in your chart and the summary of your findings that that 1.1 you have offered the opinion is either a contaminant or this DX activity?
DR. GERDES: That's correct. You can see it on the photograph. It was recorded by the analyst. It is an additional allele compared to what the analyst has recorded.
MR. CLARKE: And in fact--
DR. GERDES: And therefore represents, you know, this--a--either DX or a contaminant.
MR. CLARKE: And this is because you know the sample's type is a 1.2, 1.2, right? It is from a known person?
DR. GERDES: That's correct, proficiency testing, and that was the correct type that it should be.
MR. CLARKE: All right. If we could then zoom in on the strip as we had it previously. And what I'm going to ask you to do when we reach that point, Dr. Gerdes, and perhaps we can use the arrows to actually locate the arrow next to the dot on the sample, this second sample down, where you concluded that there was an additional 1.1 contaminant or DX gene activity?
DR. GERDES: Do you want me to do that?
MR. CLARKE: Well, would it--let's see if we can just place it while we are there.
DR. GERDES: Okay.
MR. CLARKE: If we take the arrow and go to the left or go off the screen.
(Brief pause.)
DR. GERDES: It is on the monitor here still?
THE COURT: I think we just lost our projection. We may have to do this the old-fashioned way.
MR. CLARKE: Or ask jurors to crowd around the monitor, but I don't think that will work.
THE COURT: It appears to me that we have lost our large monitor unit. Matt?
MR. ORMOND: Yes, sorry.
THE COURT: How long does it take us to switch in the back-up?
MR. ORMOND: Ten to fifteen minutes.
THE COURT: Mr. Clarke, what is your pleasure?
MR. CLARKE: I would prefer to continue on based on the foundation I have already laid, rather than interrupt this topic.
THE COURT: All right. Proceed. All right. I do have a monitor here in front of juror no. 1 that is still working; is that correct?
JUROR NO. 1: Yes.
THE COURT: Matt, how long is the cable on the monitor in front of monitor no. 1?
MR. ORMOND: About 50 feet. I can move it.
THE COURT: It is a large monitor. It is 20-inch monitor; is that correct?
MR. ORMOND: 21 inches.
THE COURT: 21.
MR. CLARKE: May I make a suggestion?
MR. SCHECK: Can we move this one?
MR. CLARKE: I will proceed if I can do it the old-fashioned way and have the witness place an arrow on the exhibit and then pass it to the jury.
THE COURT: Be my guest.
MR. CLARKE: All right. I am certainly used to doing it that way.
THE COURT: That is the way they do it in Oklahoma, I'm sure.
MR. CLARKE: May I approach the witness, your Honor?
THE COURT: You may.
MR. CLARKE: All right. Dr. Gerdes, on People's exhibit 566, if you would--and do you need a--perhaps we can use a fine pen.
DR. GERDES: Would have a fine pen there?
MR. CLARKE: I have a felt pen.
DR. GERDES: Regular pen. Regular pen is okay.
MR. CLARKE: With regard to that 1.1 allele on that second sample down--and in fact is that second sample labeled "52-2"?
DR. GERDES: Yes, it is.
MR. CLARKE: Okay. Could you place an arrow, and if it is possible to do that without interrupting any other of the results, to point out the 1.1 dot where it is located on that sample. And would a circle around it be easier?
DR. GERDES: That would be fine.
MR. CLARKE: Okay.
DR. GERDES: (Witness complies.)
MR. CLARKE: Okay. You have placed that circle--
DR. GERDES: Yes.
MR. CLARKE: Does that circle then now basically surround the dot where you detected to be either a contaminant or DX activity?
DR. GERDES: I have circled both the number that designates it and just to the right of that number is where this dot--very faint dot is located.
MR. CLARKE: First of all, that dot is clearly less than the C dot, correct?
DR. GERDES: It is.
MR. CLARKE: And the C dot is important in the correct interpretation of sample, correct?
DR. GERDES: It is important in the correct interpretation of samples that are known not to be mixtures. Once you have any suspicion of a mixture it is no longer used for that function.
MR. CLARKE: Well, doesn't the user guide say the C dot is to be used as a guide in interpreting the presence of typeable alleles?
DR. GERDES: Yes. That is what I explained earlier. If the C dot is not present, that is why this is important. If it is not there you have too little DNA. If it is there and you have any indication of more than the number of alleles you should have, then it is no longer of any function.
MR. CLARKE: While you have that photograph, was there a second sample that you believed similarly contained a contaminant or DX activity?
DR. GERDES: Yes, there is.
MR. CLARKE: Would that be how far down?
DR. GERDES: Two strips down from the one we just discussed or 52-4.
MR. CLARKE: Could you circle that particular 1.1 dot?
DR. GERDES: Certainly.
MR. CLARKE: In the same manner as the previous one?
DR. GERDES: (Witness complies.)
MR. CLARKE: And you have done that?
DR. GERDES: I have.
MR. CLARKE: For purposes of your chart, those two samples as a result of that 1.1 activity were listed as unexpected alleles, correct?
DR. GERDES: That's correct, because the--these are proficiency samples. The typing--
MR. CLARKE: I'm sorry, objection, nonresponsive, move to strike.
MR. SCHECK: No.
THE COURT: Overruled.
DR. GERDES: They are proficiency samples. The--the typings--expected typings are known, they are not mixtures, they are not supposed to be mixtures as they were provided, and this is an additional allele over those anticipated type results.
THE COURT: Next question.
MR. CLARKE: Was it listed in your chart?
DR. GERDES: It was.
MR. CLARKE: If that 1.1 reaction was as a result of this DX gene, it wouldn't be a contaminant, correct?
DR. GERDES: In this case you can't tell if it is a DX or not.
MR. CLARKE: Objection, nonresponsive.
THE COURT: Sustained. That is not the question, doctor.
MR. CLARKE: Doctor, if that activity in the 1.1 dot was from the DX gene, it wouldn't be a contaminant, would it?
DR. GERDES: That's correct.
MR. CLARKE: If that 1.1 dot was the result of cross-hybridization because of the presence of the 1.2 allele, then that activity would not be from a contaminant, correct?
DR. GERDES: Cross-hybridization is not well-known for this particular gene other than the DX phenomena, but that is true.
MR. CLARKE: So it in fact would be true that it would not be from a contaminant if it was because of cross-hybridization with the 1.2 allele?
DR. GERDES: There is another explanation for this particular allele.
MR. CLARKE: And in fact this cross-hybridization is described in the user guide, correct?
DR. GERDES: It is described in the presence of high levels of DNA, yes.
MR. CLARKE: It is described in the package insert, isn't it?
DR. GERDES: Yes, it is.
MR. CLARKE: And it is described in the scientific literature about DQ-Alpha typing?
DR. GERDES: Yes.
MR. CLARKE: All right. Your Honor, at this time I would ask that the photograph be passed to the jury.
THE COURT: All right. Let's hand it to juror no. 7.
(The exhibit was passed amongst the jurors.)
THE COURT: All right. Mr. Clarke, would you collect that from Deputy Long, please.
MR. CLARKE: Yes, thank you.
THE COURT: Let the record reflect that all the juror members have had an opportunity to review the exhibit. Mr. Clarke.
MR. CLARKE: Yes.
MR. CLARKE: Dr. Gerdes, now, showing you what I believe has been marked People's exhibit 567, I believe you stated already that that appears to be another similar photograph of what was two hybridization records later than the previous run?
DR. GERDES: Yes.
MR. CLARKE: Was that part of the same DQ-Alpha run by Collin Yamauchi?
DR. GERDES: Yes, same date.
MR. CLARKE: And in this particular instance you identified two more samples that you believed demonstrated a contaminant?
DR. GERDES: Yes, 52-20 and 52-22, which is the fourth strip down and the sixth strip down.
MR. CLARKE: Okay. You have used the identifier 52-20 to describe it?
DR. GERDES: Yeah, because you could use lane 4 and lane 6.
MR. CLARKE: Okay. You concluded from that run--and again this is a series of non-case work samples?
DR. GERDES: Yes, that's correct, they are all standards or proficiency.
MR. CLARKE: Let's start with 52-20. The actual type called by the analyst is a 1.2, 2?
DR. GERDES: Yes.
MR. CLARKE: Do you agree with that typing?
DR. GERDES: Yes.
MR. CLARKE: That was a correct typing?
DR. GERDES: Yes.
MR. CLARKE: You also, as a result of your review of all of these strips, concluded that in your opinion there were two other alleles present that you felt were contamination?
DR. GERDES: On that particular strip, yes.
MR. CLARKE: And what alleles were those?
DR. GERDES: The 1.1 and the 1.3 are--are visible on that strip.
MR. CLARKE: Could you then, with the pen, circle those two alleles, the 1.1 and the 1.3 that you felt were contaminants, as you did with the previous photo?
DR. GERDES: On 52-20?
MR. CLARKE: Yes.
DR. GERDES: Okay. (Witness complies.)
MR. CLARKE: And did you do that?
DR. GERDES: I did.
MR. CLARKE: Thank you. Also on that same run you identified another sample as containing contaminating alleles; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: That was which sample?
DR. GERDES: Well, lane--hold on. That would be lane 6.
MR. CLARKE: And does it have a 52 dash number, just for the record?
DR. GERDES: 52-22.
MR. CLARKE: What alleles were called by the analyst?
DR. GERDES: A 1.1, 3 with a very weak 1.2, 1.3, 4 and a 1.3.
MR. CLARKE: Okay. First of all, the type that is called by the analyst--and I may have misunderstood you--did you say a 1.1?
DR. GERDES: 1.1, 3.
MR. CLARKE: And then you also described the analyst made some notations about some other dots?
DR. GERDES: Yes. It is noted very weak 1.2, 1.3, 4, that is that dot that detects all of those, and a 1.3.
MR. CLARKE: Okay. Just to be clear, when the analyst wrote down "Very weak 1.2, 3 and 4," the analyst wasn't noting that the analyst saw a very weak 1.2, a very weak 3 and a very weak 4?
DR. GERDES: That is 1 dot. That is that dot that you see all three of those on that 1 dot.
MR. CLARKE: So the analyst is really noting that is a dot that I saw a very weak pattern?
DR. GERDES: Correct.
MR. CLARKE: Not that I saw a very weak.
MR. CLARKE: Those three individual alleles?
DR. GERDES: That's correct.
MR. CLARKE: Did the analyst make any other notation?
DR. GERDES: No. Well, the 1.3 which I discussed earlier, yes.
MR. CLARKE: As far as your review and the opinions that you offered as a result of reviewing that strip, did you then conclude that they were contaminating alleles?
DR. GERDES: Yes. This is a standard. It should only have the two types and it has these additional dots.
MR. CLARKE: And the additional alleles were what?
DR. GERDES: They would be consistent with a 1.2 and a 1.3.
MR. CLARKE: Now, these alleles, 1.2 and 1.3, were clearly less than the C dot, correct?
DR. GERDES: Yes, they are.
MR. CLARKE: As far as the call on the sample by the analyst, do you agree with the call of the actual typing results?
DR. GERDES: Yes.
MR. CLARKE: The typing results of 1.1 and 3 were called correctly by the analyst; is that right?
DR. GERDES: That's true.
MR. CLARKE: With regard to--and you described the fact that this sample, the person actually has the 1.1 allele, correct?
DR. GERDES: Yes.
MR. CLARKE: If the reaction in the 1.2--and again, the 1.2 is a very close probe to the 1.1, right?
DR. GERDES: There is a single-base pair difference.
MR. CLARKE: If the 1.2 reaction were as a result of cross-hybridization it would not be a contaminant, correct?
DR. GERDES: That phenomenon is not reported to be a problem with that particular dot, but--theoretically, yes.
MR. CLARKE: Objection, nonresponsive, your Honor.
THE COURT: Overruled.
MR. CLARKE: You said the answer is yes?
DR. GERDES: Yes, but it has not been reported to be a problem on that dot.
MR. CLARKE: When you say it is not reported to be a problem, what do you mean?
DR. GERDES: In laboratories, the number of laboratories I have looked at and in the literature, there is no report that the 1.2 cross-hybridizes.
MR. CLARKE: Dr. Gerdes, isn't it true the scientific literature does describe cross-hybridization of all of the 1 subtypes; 1.1, 1.2 and 1.3?
DR. GERDES: As far as what is observed in laboratories the 1.1 and the 1.3 are observed--
MR. CLARKE: Objection, nonresponsive, your Honor.
THE COURT: Sustained.
MR. CLARKE: Dr. Gerdes, doesn't the scientific literature describe cross-hybridization between all three of the 1 subtypes; 1.1, 1.2 and 1.3?
DR. GERDES: I don't believe so.
MR. CLARKE: If the 1.3 allele--and we discussed just the 1.2 at this point, correct?
DR. GERDES: That's correct.
MR. CLARKE: If the 1.3 allele were from cross-hybridization, it would not be a contaminant, correct?
DR. GERDES: That's true.
MR. CLARKE: All right. Your Honor, then with the Court's permission I would like this particular photograph be passed to the jury.
THE COURT: All right.
DR. GERDES: Would you like me to mark those dots?
MR. CLARKE: Oh, I'm sorry. Yes, sir. Please, doctor.
DR. GERDES: Okay. (Witness complies.)
THE COURT: All right. Mr. Clarke, would you hand that to juror no. 7, please.
(The exhibit was passed amongst the jurors.)
MR. CLARKE: May we approach for a brief moment, your Honor? This relates to logistics.
THE COURT: Without the reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Matt, could you crawl across and come chat with us, please.
MR. ORMOND: Yes.
(Brief pause.)
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Let the record reflect that I believe that is 567--one more, that is 567?
MR. CLARKE: Yes.
THE COURT: All right. The record should reflect that all the jurors have had the opportunity to view 567. And Mr. Clarke, it is now your request that we do use the projector for the next items?
MR. CLARKE: Actually, if could I have about two minutes with a board, then I would like to use the projector.
THE COURT: We are missing one of the jurors now, so why don't we take a break right now and Mr.--you've got ten minutes to swap that out. All right. Let me have the jurors step back in the jury room and we are going to change the projector and then we will start up again. Doctor, you can step down.
DR. GERDES: Thank you.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Dr. Gerdes, why don't you take your seat again. All right. Deputy Magnera, let's have the jurors, please. All right. That was an excellent job, gentlemen.
MR. CLARKE: My thanks as well.
(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. Mr. Clarke, you may continue.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Gerdes, you have conceded that if in fact a signal such as in the photographs that have been shown to this jury are the result of cross-hybridization, then they are not the result of contamination, correct?
DR. GERDES: Correct.
MR. CLARKE: As far as the creation of your chart and in fact there were a number of charts shown to the jury that discussed and had bars or graphs of contamination, do you recall those?
DR. GERDES: I do.
MR. CLARKE: In those instances in which, for instance, there is cross-hybridization instead of contamination, those charts are biased as far as the presence of contamination in the LAPD laboratory, correct?
DR. GERDES: I think we tried to explain what the degree of bias would be and so for instance on the 1.1, that was 7.6 percent of the strips, and on the 1.3, that was 25 percent, so if it is biased we attempted to explain the bias.
MR. CLARKE: In other words, the way the charts are written assumes that what might be cross-contamination is contamination?
MR. SCHECK: Objection.
THE COURT: Argumentative. Sustained.
MR. CLARKE: Do those charts reflect then and include in those graphs of contamination incidents which may are the result of cross-hybridization?
DR. GERDES: Only for the specific case of the 1.1 allele and the 1.3 allele.
MR. CLARKE: Is it then the case that what may be a graph that you show 100 percent of runs contaminated, that if in fact the 1.3 and 1.1 alleles are present, then those charts overstate the contamination?
DR. GERDES: I don't believe so, because the reason I analyzed it in that manner was to look at more than one strip to attempt to find the confirmation.
MR. CLARKE: Does that mean, Dr. Gerdes, when you describe the 25 percent and the 7.6 percent, that your charts may overstate the contamination at the Los Angeles Police Department by over 32 percent?
MR. SCHECK: Objection, vague question.
THE COURT: Overruled.
DR. GERDES: Remember, those are the percentage of those specific alleles and those are only two of the six alleles, so in terms of--if I could look at my notes?
MR. CLARKE: Do you need to look at your notes for some answer for a portion of this answer?
DR. GERDES: For an example, yes. If we sum the total 1.1 plus 1.3 that could possibly be DX or cross-contamination, that could be 16.5 percent of those alleles.
MR. CLARKE: Dr. Gerdes, what I'm asking is when you have, say, the month of May, 1994, and you show--and I'm not trying to give an exact number for the month of May. Let's just assume you have a number, whether it is forty percent, fifty percent or sixty percent, you have a bar graph that approximates that percentage, correct?
MR. SCHECK: Objection, vague as to which chart, which bar graph.
THE COURT: Sustained.
MR. CLARKE: With regard to these graphs there is one that describes run contamination and describes contamination for May, June and July, correct?
DR. GERDES: Yes.
MR. CLARKE: With regard to that particular graph--and let's assume for May there is a certain percentage of strip contamination whatever that is, all right?
DR. GERDES: Yes.
MR. CLARKE: That figure, whatever that percentage is, does that include these 1.1 and 1.3 instances?
MR. SCHECK: Misstates the chart.
THE COURT: Overruled.
MR. SCHECK: The chart speaks for itself.
THE COURT: Overruled.
DR. GERDES: Are you talking about the strip chart or the run chart?
MR. CLARKE: I'm talking about the chart that has both.
DR. GERDES: On the strip chart those would be included. On the run chart the entire date would be evaluated with one sample versus the other, so I could confirm whether or not that was contamination or not.
MR. CLARKE: Dr. Gerdes, I'm not sure you can see that from there. Perhaps if you would step down.
DR. GERDES: (Witness complies.)
THE COURT: This is 1297 if I recollect.
MR. CLARKE: Yes. Thank you, your Honor.
MR. CLARKE: Dr. Gerdes, with regard to this particular exhibit, is this the chart that I just questioned you about as far as demonstrating for May, June and July your opinion of contamination levels by both runs and strips?
DR. GERDES: Yes, it is.
THE COURT: All right, doctor. Would you take a half step back. You are shielding the court reporter. Thank you.
DR. GERDES: I'm sorry.
MR. CLARKE: If I could, Dr. Gerdes, let's take June where there is a 33 percent indication of strips.
DR. GERDES: Excuse me. You are pointing to May.
MR. CLARKE: I'm sorry, referring to May where there appears to be a green block that contains strip contamination or artifacts; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: Does that 33 percent include the 1.1 alleles?
DR. GERDES: At that point it does.
MR. CLARKE: Does it include the 1.3 allele?
DR. GERDES: Yes.
MR. CLARKE: The 1.1 alleles can be the result of DX contamination or artifacts?
DR. GERDES: That's correct.
MR. CLARKE: The 1.3 can be the result of cross-hybridization under your testimony; is that correct?
DR. GERDES: That's true.
MR. CLARKE: 33 percent includes both of those?
DR. GERDES: It does.
MR. CLARKE: In fact, if those are not from contamination, those overstate the percentage of contamination, don't they?
DR. GERDES: They would by less than 16 percent overall.
MR. CLARKE: So it is your view that it only overstates it to a certain extent, but the chart is still correct?
DR. GERDES: If I can explain? May I explain, your Honor.
MR. CLARKE: Well, the question is--
MR. SCHECK: May the witness explain?
THE COURT: He answered the question. He can explain his answers on redirect examination.
MR. CLARKE: Dr. Gerdes, my question to you is in your opinion does the 33 percent then overstate the occurrence of contamination if in fact those 1.1 and 1.3 alleles are not from contamination?
DR. GERDES: With regards to that specific strip, this specific bar, that might be overstated. That is why I did the analysis the way I did, to look to the next one over which is the run contamination, so if we can look at May 12th I can explain how I confirm whether or not these are contaminated.
MR. CLARKE: Incidentally, these percentages and your inclusion of those 1.3 and 1.1's, was that also true of the 31 percent in June?
DR. GERDES: That is why it is labeled "Strip contamination and/or artifact." It is clearly labeled as that. That is what it is.
MR. CLARKE: Objection, nonresponsive, your Honor.
THE COURT: Sustained. Ask the question again.
MR. CLARKE: Dr. Gerdes, when you calculated 31 percent for the month of June, did that include the 1.1 and 1.3 alleles that may not be from contamination?
DR. GERDES: Yes.
MR. CLARKE: The 17 percent reported in July, did those also include the 1.1 and 1.3 alleles that may not be contamination at all?
DR. GERDES: Yes.
MR. CLARKE: Thank you, doctor. You may resume the stand.
DR. GERDES: (Witness complies.)
MR. CLARKE: Your Honor, I have a photograph--I think the projector is back--I would ask to be mark as People's 568.
THE COURT: 568.
(Peo's 568 for id = photograph)
MR. CLARKE: Which I have previously shown to counsel.
THE COURT: Proceed.
MR. CLARKE: Dr. Gerdes, showing you one more photograph, does that appear to be another hybridization record photograph that you reviewed as part of your review of the strips at the LAPD?
DR. GERDES: If I could just check it?
MR. CLARKE: Sure.
DR. GERDES: (Witness complies.) Yes, it does.
MR. CLARKE: And that particular run was conducted--well, that reflects a certain hybridization record number?
DR. GERDES: Hybridization 101.
MR. CLARKE: And do you have a Xerox copy of what is contained?
DR. GERDES: No, I have a photo.
MR. CLARKE: A photo as well?
DR. GERDES: Yes.
MR. CLARKE: Your Honor, with the Court's permission I would like to display this photo.
(Brief pause.)
MR. CLARKE: Just for purposes of identifying this particular photograph, Dr. Gerdes, what date was this run conducted?
DR. GERDES: 1/14/94.
MR. CLARKE: January of `94?
DR. GERDES: Correct.
MR. CLARKE: The analyst was whom?
DR. GERDES: Erin Riley.
MR. CLARKE: And the confirming analyst was Collin Yamauchi?
DR. GERDES: Yes.
MR. CLARKE: This was one of the strips you looked at as part of your review of the LAPD DNA work?
DR. GERDES: There series of strips, yes.
MR. CLARKE: What was contained on this series of strips?
DR. GERDES: The first five items are actually evidence items, then there is a standard no. 5, a negative control, and then another evidence item.
MR. CLARKE: Okay. When you say the first five items were case work, that is case work but not related to this case, correct?
DR. GERDES: That's correct.
MR. CLARKE: In other words, this is an example of your review of their work that included actually other criminal cases but not this one?
DR. GERDES: That's correct.
MR. CLARKE: Is that why it has a number that appears to be 93 dash and a series of numbers?
DR. GERDES: That is a code number for a different case, yes.
MR. CLARKE: As part of your review that type of number tells us it is case work, correct?
DR. GERDES: Correct.
MR. CLARKE: Instead of like CTS or known reference sample and so forth?
DR. GERDES: Correct.
MR. CLARKE: Now, in this particular instance the analyst--and there were eight strips run in this particular instance?
DR. GERDES: On this particular page, yes.
MR. CLARKE: Now, if we could focus in on the written results column up to the far right, that column and the first five strips, I'm sorry, are evidence samples again; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: The next sample, which is in what would it be no. 6, is labeled standard no. 5?
DR. GERDES: Correct.
MR. CLARKE: That would be a known blood from a known person?
DR. GERDES: Correct.
MR. CLARKE: Or positive control?
DR. GERDES: It is a positive control, yes.
MR. CLARKE: Below that is labeled "Neg." control?
DR. GERDES: Yes.
MR. CLARKE: And is that what is referred to as a reagent blank or cloth control?
DR. GERDES: That's correct.
MR. CLARKE: And then lastly, is there another case work sample?
DR. GERDES: That's correct.
MR. CLARKE: Which looks like it has a number beginning with 89?
DR. GERDES: Correct.
MR. CLARKE: Does that indicate the year of the case?
DR. GERDES: I believe so.
MR. CLARKE: So is it the case then that the Los Angeles Police Department DNA laboratory would actually look at cases that were, for instance, several years old as part of their DNA typing?
DR. GERDES: Apparently that is true.
MR. CLARKE: Now, over to the right where all the results are written, there appear to be many different alleles noted for all the samples, correct?
DR. GERDES: That's true.
MR. CLARKE: As part of the review of a run an analyst wants to look at the negative control, for instance; is that right?
DR. GERDES: Correct.
MR. CLARKE: And is that the type of control that an analyst would look at first?
DR. GERDES: Generally, yes.
MR. CLARKE: Or if not first, very close to first?
DR. GERDES: Yes.
MR. CLARKE: Because that control is very important in determining whether or not a PCR run is contaminated?
DR. GERDES: Correct.
MR. CLARKE: Now, in this particular instance the analyst noted, as far as the negative control, the presence of what looked like four alleles, correct?
DR. GERDES: Yes. On the negative control, which again should have no DNA, there is a 1.2, 2, a 4 and a 1.1.
MR. CLARKE: Now, if we could move up to the appropriate strip where the actual dots are noted, that would be the second strip from the bottom, Dr. Gerdes?
DR. GERDES: Correct.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: We will see if we can place an arrow, just so it is clear, which strip we are referring to. That would be second from the bottom, Dr. Gerdes?
DR. GERDES: That's correct.
MR. CLARKE: Is the arrow currently pointing to that particular strip right there?
DR. GERDES: Yes.
MR. CLARKE: Now, that negative control should show no dots in any of the probes, correct?
DR. GERDES: It should be totally clean. There should be nothing there.
MR. CLARKE: And we are seeing a 1 dot?
DR. GERDES: Yes.
MR. CLARKE: A 2 dot?
DR. GERDES: Yes.
MR. CLARKE: A 4 dot?
DR. GERDES: Yes.
MR. CLARKE: Is there a C dot?
DR. GERDES: Yes, on my photo there is.
MR. CLARKE: But faint, would that be a fair description?
DR. GERDES: Yes.
MR. CLARKE: Is there a 1.1 dot?
DR. GERDES: Yes.
MR. CLARKE: Similarly faint?
DR. GERDES: About the same as C.
MR. CLARKE: Now, the 1.2, 1.3, 4 dot, without getting into its interpretation in this particular sample, is showing a clean reaction, correct?
DR. GERDES: It is.
MR. CLARKE: Is there a reaction in the 1.3 dot?
DR. GERDES: No.
MR. CLARKE: And lastly, the all but 1.3, that is going to basically show a reaction if any allele is present other than the 1.3, right?
DR. GERDES: Correct.
MR. CLARKE: So that is another sample that you use to interpret the results?
DR. GERDES: Correct.
MR. CLARKE: Now, if we could go back to the actual result section, and just first before we do that, then this is a signal to an analyst that there is a problem with this run, correct?
DR. GERDES: Yes.
MR. CLARKE: It is a clear signal, isn't it?
DR. GERDES: This is gross contamination.
MR. CLARKE: If we could return to the results column in the written portion and go to the far right, and that is fine, as far as zoom in or zoom out. There is the appearance of many alleles in each of these samples, correct?
DR. GERDES: That's correct.
MR. CLARKE: It is fairly easy to determine that there is contamination in this run, correct?
DR. GERDES: Yes.
MR. CLARKE: And in fact the analyst noted that contamination, correct?
DR. GERDES: They did.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: It is correct that the control worked in this instance revealing contamination, correct, Dr. Gerdes?
DR. GERDES: In this particular case, yes.
MR. CLARKE: And in fact they clearly were?
DR. GERDES: In this particular case, yes.
MR. CLARKE: All right. Could I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Gerdes, as far as the materials you received in this case, you were provided, I believe you described materials relating to DNA testing by LAPD?
DR. GERDES: Yes.
MR. CLARKE: Cellmark?
DR. GERDES: Yes.
MR. CLARKE: And the Department of Justice?
DR. GERDES: Yes.
MR. CLARKE: And did you review all of those materials?
DR. GERDES: I did.
MR. CLARKE: You were also provided, and in particular, with reports from each of those laboratories?
DR. GERDES: That's correct.
MR. CLARKE: I'm referring to DNA work as well--as far as your reports?
DR. GERDES: Specifically, yes.
MR. CLARKE: Were you provided any of the serological reports, that is, the results obtained by conventional serology?
DR. GERDES: No.
MR. CLARKE: Were you provided bench notes relating to the DNA work?
DR. GERDES: Yes.
MR. CLARKE: Were you provided all of the x-rays or autoradiographs?
DR. GERDES: The majority, yes.
MR. CLARKE: Are there some you are aware of that you were not provided?
DR. GERDES: Yes.
MR. CLARKE: What about the D1S80 films? They are somewhat like autoradiographs in appearance, correct?
DR. GERDES: Yes.
MR. CLARKE: Were you provided those?
DR. GERDES: Yes.
MR. CLARKE: Were you provided photographs, for instance, of typing strips, and I'm referring to the case work itself in this case?
DR. GERDES: Yes.
MR. CLARKE: Were you provided photographs of product gels as they are called where there is an evaluation of the presence of DNA and how much?
DR. GERDES: Yes.
MR. CLARKE: Were you provided photographs--well, or other--let me rephrase that. Were you provided x-rays or copies of those x-rays of what are called slot-blots that are another method of determining approximately how much DNA is present?
DR. GERDES: I have not seen the original slot-blots from either the DOJ or from Cellmark. As far as the autorad itself, I have seen Xerox copies.
MR. CLARKE: So you haven't seen any of the slot-blots that quantitate?
DR. GERDES: I have seen the recorded results. I have not seen that the autorad that goes with that, other than a copy.
MR. CLARKE: Does Cellmark record the actual amounts from a slot-blot or is the x-ray the data from which they interpret it and don't note it in a written document?
DR. GERDES: They don't note it.
MR. CLARKE: So therefore it is correct that you have seen no reports or photographs detailing the amount of DNA that Cellmark determines from a sample?
DR. GERDES: Not directly from Cellmark.
MR. CLARKE: Have you received it from some other source?
DR. GERDES: From Department of Justice.
MR. CLARKE: Well, I'm referring to Cellmark?
DR. GERDES: The same item.
MR. CLARKE: I'm sorry, maybe I didn't make it clear.
DR. GERDES: It was related to me through--I believe it was related to me through, umm--umm, discussions with testimony by Robin Cotton and I read those testimonies in which she specifically stated what the DNA amounts were on the items in question.
MR. CLARKE: Were you provided materials about proficiency testing by all three laboratories?
DR. GERDES: Yes.
MR. CLARKE: And did you review all of that material?
DR. GERDES: Yes.
MR. CLARKE: Were you provided--and you've already described receiving and reviewing each of the validation DQ-Alpha strips at the Los Angeles Police Department. Did you review validation materials from the other two laboratories as well?
DR. GERDES: I did.
MR. CLARKE: Did you review the accreditation materials from Cellmark Diagnostics, that is, accreditation by the American Society of Crime Laboratory Directors?
DR. GERDES: I have seen documents related to that, yes.
MR. CLARKE: And were those documents specific to Cellmark Diagnostics?
DR. GERDES: Yes.
MR. CLARKE: Were there also similar material from the Department of Justice that you received and reviewed?
DR. GERDES: I may have. I don't recall offhand seeing the specific document on that.
MR. CLARKE: You have described reading some of the transcripts in this case, that is transcripts of testimony?
DR. GERDES: Umm, I read the transcripts of individuals that related to DNA. I haven't read the transcripts of the entire case.
MR. CLARKE: What witness' testimony have you read the transcripts of?
DR. GERDES: Mazzola, Fung, Collin Yamauchi, Gary Sims, Renee Montgomery, Robin Cotton and I may have forgotten somebody, but basically anyone who dealt with either sample collection or DNA analysis.
MR. CLARKE: That is a lot of transcripts, isn't it?
DR. GERDES: It is.
MR. CLARKE: Can you approximate for us how many hours you have spent just reading those transcripts or days or weeks, whatever is easier?
DR. GERDES: Perhaps, you know, all total a week or two time.
MR. CLARKE: One or two weeks to read the transcripts of each of those witnesses--all of those witnesses?
DR. GERDES: Perhaps a week or two, yes.
MR. CLARKE: Have you received any videotapes for your review?
DR. GERDES: I have seen clips of videotapes, but I have never received them myself.
MR. CLARKE: By "Clips" do you mean on television?
DR. GERDES: Yes, on TV or, you know, played during the course of the trial.
MR. CLARKE: As opposed to a videotape that you received and watched--
DR. GERDES: I did not receive any videotapes.
MR. CLARKE: Are there any other materials that you were provided with respect to this case?
DR. GERDES: I believe we covered most of them.
MR. CLARKE: You reviewed all of those materials, correct?
DR. GERDES: Yes.
MR. CLARKE: You made notes as a portion of your review?
DR. GERDES: Yes.
MR. CLARKE: You compiled a chart?
DR. GERDES: Yes.
MR. CLARKE: As far as your notes, how many notes--I mean can you state it in terms of pages how many notes you took, and I'm setting aside the chart with the raw data on it?
DR. GERDES: Most of my notes were taken during the--I had one or two pages of lab--of notes on the lab site visits. I had perhaps a page or two involved in analyzing or looking at the strips for each particular area as far as just summarizing and that is all.
MR. CLARKE: You have used the term "Site visit." Site visit has a special meaning in science, doesn't it?
DR. GERDES: Well, it can.
MR. CLARKE: What does it mean?
DR. GERDES: Well, it--that is what you would call, for instance, if you were applying for a grant from the NIH and they requested a site visit, that would simply mean they wanted to come and look at your lab and inspect it.
MR. CLARKE: That is a fairly formalized procedure, isn't it, for an inspection of your laboratory?
DR. GERDES: Yes.
MR. CLARKE: And in fact that inspection can have serious consequences to the laboratory; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: A site visit is performed by authorized personnel, for instance, from a government agency, right?
DR. GERDES: Correct.
MR. CLARKE: Is it your view that your visits to each of the laboratories in this case were site visits?
DR. GERDES: Perhaps it is a misnomer. I visited the laboratory. I am under no authority of any accrediting agency or anything like that.
MR. CLARKE: When you reviewed the results and all of this raw data, did there ever come a question in your mind about how a result was interpreted or how a procedure was in fact undertaken by the analyst?
DR. GERDES: I was provided with all of the protocols from the laboratories, so I had access to those materials.
MR. CLARKE: Well, what I'm asking, is other than from the material, even if you reviewed all of those, were there any questions in your mind about how an analyst performed a particular task? Did that ever happen?
DR. GERDES: Based on all the information I have, all of those things we just discussed, no.
MR. CLARKE: So from your review of the materials you had no questions whatsoever?
DR. GERDES: No, and remember, I have seen these--with the specific example of Cellmark and DOJ, I have done other cases involved in those particular laboratories, so I'm familiar with they are protocols and procedures.
MR. CLARKE: And you felt that that was a sufficient familiarity so that you could review all of these materials from all of these samples and have no questions of the analysts whatsoever?
DR. GERDES: If you've ever seen Gary Sims' notes, they are extremely detailed. All you have to do is read the notes.
MR. CLARKE: And that was in your view sufficient for you to be able to render all of your conclusions thus far in this case?
DR. GERDES: Based--yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: One more if I might, your Honor.
THE COURT: Uno mas.
MR. CLARKE: Protocols that you have described previously as being used in your own laboratory, do you always follow or do your technicians always follow those protocols exactly?
DR. GERDES: In any laboratory you have the protocol is followed as carefully as possible and as exactly as possible. If there is any situation that occurs where that can't be the case, then the technician is instructed to direct--to ask the director whether or not a change is--changes can be made and which changes can or can't be made.
MR. CLARKE: Thank you, your Honor.
THE COURT: All right. Ladies and gentlemen, we are going to take our recess at this time for the day. Before we do that, I just wanted to bring one matter to your attention before we conclude today. About a year ago when I first was assigned this case, I received a lot of unsolicited resumes from people who wanted to come work for the Court, and I got literally dozens of these, and I got one in particular that I recollect because it looked interesting, but it went in the same place that all the others went, which was in the round file. This individual persisted and sent it again and so I figured at least I would read it again more seriously, and it turned out that this person was a high honors graduate from Claremont McKenna College which as you know is one of this country's finest small liberal arts colleges here in the west coast and she had scored in the high nineties percentile in the LSAT. And looking at her work experience it was impressive in the things that she had done and I think that really caught my eye is that she had worked as a speech writer for a member of parliament in Britain. So I took her on as a volunteer non-law student since she had not gone to law school yet, and I figured, if nothing else, I can have her pick up my robe in the laundry. And she has been with us almost as year as a complete volunteer at no cost to the taxpayers of our county and actually, as you know, she has probably saved the taxpayers thousands of dollars for the goods and services that she has gotten for you, all the free meals in the restaurants, all the entertainment, all the wonderful things that have happened. She has also been introduced to basic legal research by the Pepperdine law students who work for me and you know her primary job is to keep you all entertained and I think she has done a great job. She now leaves us to begin her studies at a prestigious law school on the east coast, and I know that you join with me in wishing her good luck with her studies. We all know that, demonstrating her talents, she will obviously be highly successful in whatever it is she chooses to do in her cheer. And I suspect that in my years of retirement my claim to fame will be that she was once my law clerk. Thank you very much.
(Applause, applause, applause, applause, applause, applause.)
THE COURT: All right. Now, having said that, please remember all my admonitions to you. Don't conduct any deliberations until the matter been submitted to you, don't form any opinions, don't allow anybody to communicate with you, and have a wonderful weekend. As far as the jury is concerned, we will see you all Monday morning nine o'clock sharp. Dr. Gerdes, you may step down. Nine o'clock Monday.
DR. GERDES: Yes, sir.
THE COURT: All right. You all have a nice weekend.
(At 12:05 P.M. an adjournment was taken until, Monday, August 7, 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 Friday, August 4, 1995
Volume 200 pages 40321 through 40442, 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
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I N D E X
Index for volume 200 pages 40321 - 40442
Day date session page vol.
Friday August 4, 1995 A.M. 40321 200
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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 200 (Resumed) 40324gc
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Gerdes, John 200 (Resumed) 40324gc
EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
564 - Series of slides 40343 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
564-A - slide 40343 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
564-B - slide 40345 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
564-C - slide 40346 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
564-D - slide 40346 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
564-E - slide 40347 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
564-F - slide 40348 200 entitled "Replicate DQ-Alpha testing of items 48, 50 and 52"
565 - 1-page document 40361 200 entitled "DNA testing of 303, 304 and 305"
566 - Photograph 40393 200 of a DNA hybridization record - hyb-182
567 - Photograph 40393 200 of a DNA hybridization record - hyb-184
568 - Photograph 40423 200 of a DNA hybridization record - hyb-101