Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Thompson, Mr. Scheck. The People are represented by Mr. Kelberg, Miss Clark, Mr. Clarke, Mr. Harmon. The jury is not present. Counsel, anything we need to take up before we invite the jurors to rejoin to us conclude the cross-examination of Dr. Gerdes?
MR. KELBERG: Your Honor--
THE COURT: Mr. Kelberg, good morning.
MR. KELBERG: Good morning. From my attire you may expect that I was not anticipating a visit to your courtroom this morning and that was the case except that I was informed by way of a communication between Mr. Yochelson of our office and Mr. Douglas of the Defense late Friday afternoon that in the most recent witness list for this week the Defense has named doctors Baden and Wolf as I think witnesses or prospective witnesses 4 and 5. I had asked Mr. Yochelson on Friday, August 4th, to make a formal request of Mr. Shapiro for any report from either of these doctors. We have never received a report from either one of them. And this morning I spoke to Mr. Cochran who indicated that there may not be a report. I pointed out that when Dr. Baden twice has been retained by our office he has always submitted a report, but setting that aside, I learned to try cases when this Court, I believe, learned to try cases before reciprocal discovery, and so trial by ambush is not an unusual procedure by which one learns to do cross-examination. But if this is to be a search for the truth and if there is still the impact of the reciprocal discovery provision of the California constitution, I think it is incumbent that both sides share their materials. In this regard, if there is not going to be a report, if they have made a tactical decision not to have a report prepared, you know, that will be the subject of cross-examination, but I would like to see every note that these people have. I think it is important to remember we know Dr. Baden has been involved with the Defense since at least June 17 because we have a picture of Dr. Baden with Dr. Huizenga examining Mr. Simpson's hand, as I recall, one of the exhibits that has been marked. And so I would like whatever they have, because I have no idea what they are going to testify to. I had a brief conversation with Mr. Shapiro about two weeks ago where he indicated that if one or both doctors Baden or Wolf were called that it might be on a limited basis and he would have a report. Apparently that may be changing. Again, I will cross-examine these people if I don't get a note and I don't get a report, but I don't think that the People's request for reciprocal discovery is advanced if in fact I do not stand here and make a request through the Court to get what is in fact our entitlement under that California constitutional provision.
THE COURT: All right. Thank you, Mr. Kelberg. Mr. Cochran.
MR. COCHRAN: Good morning, your Honor.
THE COURT: Good morning.
MR. COCHRAN: Your Honor, in this matter, we are very, very aware of our responsibilities under reciprocal discovery. I think you, I and Mr. Kelberg all heard how to try cases under the old system and we have adjusted to the new system obviously. That is part of being a lawyer, I suppose, and fairly intelligently is the ability to adapt. The problem is Mr. Shapiro is not here and may not be here today. He will be handling any witnesses that we call from a forensic pathology standpoint and he is mindful of his obligations. It is an interesting argument, and I would just like to point this out, your Honor: If witnesses don't normally write reports, we don't have to ask him to do a report. In this case several times we said write a report so we don't have any problem. We still get whipsawed and can't win. The People should understand that. We can't win. If they normally don't write report, then the Prosecution says, well, gee, that report came late and we want a delay. We cannot win. And let's make that clear. This search for truth works for both sides, North Carolina and elsewhere. We were entitled to that also. If there are notes--I can tell you if they don't normally write reports--but Mr. Shapiro makes a decision, as we have done with other witnesses, says write a report, so we don't have any problems with this, but I can't say. He is not here yet.
THE COURT: We will wait for Mr. Shapiro.
MR. COCHRAN: Judge, if he doesn't come, he may be working with them, I will be speaking with them and report it back, and Mr. Kelberg, we can let him know at his office.
MR. KELBERG: Your Honor, Mr. Cochran was kind enough to identify the last name on this witness list who none of us was familiar with, J. Uko, u-k-o, and apparently Dr. Uko is pathologist from buffalo. My request goes to Dr. Uko as well as doctors Baden and Wolf. And I have nothing to say about North Carolina. I am not trying to make a pitch for anything other than the limited responsibilities I face at the end of this week.
THE COURT: All right. Mr. Kelberg, why don't you see if you can't contact Mr. Shapiro.
MR. COCHRAN: I will do it for him, your Honor.
THE COURT: All right.
MR. COCHRAN: Thank you.
MR. KELBERG: I will give Mr. Cochran my office number.
THE COURT: All right. Thank you, counsel.
MR. COCHRAN: Thank you, your Honor.
THE COURT: All right. Mr. Clarke, are we ready to proceed?
MR. CLARKE: Actually two items, if I might bring them to the Court's attention. The first relates to the grant proposal and it is my intention to--the Court may recall that that proposal was faxed to this courtroom. Having reviewed that material, there are two areas of inquiry that I wish to make, but not as to the specifics of the technology contained in it. I wanted to bring that to the Court's attention before I launched into that.
MR. SCHECK: Perhaps he could--Mr. Clarke at side bar or sealed record can indicate what that is, so that I can just--
THE COURT: What is the nature of your inquiry, Mr. Clarke?
MR. CLARKE: Approaches in the laboratory of the witness. I can be more specific, but I would like to do it outside the presence of the witness.
MR. SCHECK: I just have those proprietary--
THE COURT: Dr. Gerdes, why don't you wait outside, please.
(Dr. Baden exits the courtroom.)
MR. SCHECK: Your Honor, could we approach on this? Because I just have that proprietary--
THE COURT: Mr. Clarke indicates it has nothing to do with the particular topic, just the technique involved.
MR. CLARKE: Correct. Two areas of inquiry that I wish to make is there is reference in the proposal and a description of this witness' laboratory as being a laboratory that uses primarily, quote, home-brewed, unquote, methods as opposed to kits. And I think that is an area that is significant in the context of this witness' prior testimony, so that is a fairly brief and narrow area. Actually it is probably a couple of questions. The second area relates to a further description of the laboratory as a progressive reference laboratory that rapidly seeks to implement new DNA technologies, and I think that obviously is relevant to this inquiry as well. So my intent is not to get into the specifics of the proposed technique whatsoever.
THE COURT: All right. Thank you for the warning.
MR. CLARKE: The second relates to discovery, and in the same vein as Mr. Kelberg, I would like to give the Court a very brief history of what has occurred since last Monday. Either Tuesday or Wednesday of last week I was provided by Mr. Scheck six pages of Dr. Gerdes' notes. At the noon recess on Friday the Court may recall Dr. Gerdes' referred in his testimony to further notes that he had in his possession and at that time, per Mr. Scheck, those further notes were, quote, provided long ago to the People in discovery. Mr. Blasier indicated at that time that that was not the case and that in fact they were not provided to the People because they were never asked for. Now, I think that is an important comment, particularly in light of Mr. Cochran's comments just a few moments ago that the People are entitled to notes, and so here is a situation in which there were clearly notes that existed, Dr. Gerdes had them in his notebook, the Defense was apparently aware of them and yet we were denied discovery of them until Friday at noon of last week. Now, copies were made of those notes. They contain some important information that I will further address the witness about. We are not seeking a remedy as to this witness at this point, but I think it is important that that event be known, particularly in light of what Mr. Kelberg just stated and also in light of what will be the approaching witnesses at least by the information that we received last Friday as to the next DNA witnesses. It is my request that with respect to those DNA witnesses, and there are at this point three apparently to follow Dr. Gerdes, that Mr. Harmon would ask a brief moment to address the Court about obtaining discovery of those materials immediately, if that is acceptable to the Court.
THE COURT: No. I think you have just made the request on his behalf. I don't think you need to add anything more to that other than to name the witnesses.
MR. CLARKE: Well, at this point I think I would like to add that we have been notified that those individuals are Dr. Speed, Dr. Mullis and Dr. Shields, and at least in terms of any witnesses, particularly those who may involve statistics, that frankly it is a bit inconceivable that there aren't notes about calculations of population frequency data related to this case, and yet at this point we have received zero.
MR. SCHECK: Just the first matter is that I'm glad Mr. Clarke raised this issue. Mr. Blasier and Mr. Douglas, as the Court recalls, were handling the discovery and showed the Court various notes and had made a legal determination, since they are the California lawyers, under the Hines case, as to which notes were turned over or not. And the two sets of notes that we are talking about is that Dr. Gerdes made some handwritten notations when he did his lab tour and pictures were taken when all the LAPD people were there and they took the same pictures and they were there on the same tour. I had mistakenly believed that those notes had been turned over. That was just a mistake. And they were given to them at that time. I was informed by Mr. Blasier that those were in the category of notes that are turned over when the witness testified. They are not--they were not notations of any reports or calculations or examinations that he had done. I had made sure that the charts, contamination analysis, the unexpected allele analysis, had been turned over months ago along with Dr. Gerdes' report. The other notes that Mr. Clarke is referring to are handwritten notes that Dr. Gerdes made that are really inventories of what is contained in the raw material. In other words, he has a series of notebooks here that contain some but not all of the data and on the first page of each section he has notations about what is--like a table of contents as to what is in the other materials. And I would just note in passing that at various times when I approached the--the witness stand when Gary Sims was testifying, and I know it was true of Renee Montgomery and Mr. Yamauchi, other witnesses, they had similar kind of table of contents notes in terms of the materials and other notations to themselves that I suppose I now understand under the rules I could have asked for at that time, but I saw what they were. So those are the nature of those notes and I just want to make that clear, because I don't want to get into any trouble on discovery obligations. I am relying on the California lawyers here who have been to the Court and have gone through these materials.
THE COURT: Well, at this point, since Mr. Clarke is not asking for any particular sanction, let's not waste a lot of time.
MR. SCHECK: I just wanted to make clear to you exactly what the nature of this was.
THE COURT: Now, having said, what about the next three?
MR. SCHECK: Well, Mr. Neufeld will address Dr. Speed who he is going to put on, and as far as--and he is actually putting on the other two witnesses, and at this time we have nothing that--no reports and no notes in the nature of anything that we think we have to disclose at this time.
THE COURT: All right. Even in the nature of statistical calculations?
MR. SCHECK: No, there is no--there is no--I--I can--unless they are doing something now, there is nothing in the nature of statistical calculations that Dr. Speed is doing, I feel quite certain of that, but again, that is--Mr. Neufeld will know better than I, but I feel fairly certain of that.
THE COURT: All right. Deputy Magnera, let's have the jurors, please.
(Brief pause.)
MR. SCHECK: Your Honor, our only request, before he asks any questions about the term "Home-brewed," that we can find it in the report. He doesn't know the page.
(Discussion held off the record between Defense counsel.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: 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. The record should reflect that Dr. John Gerdes is on the witness stand undergoing cross-examination by Mr. Clarke. Good morning again, doctor.
DR. GERDES: Good morning.
THE COURT: Doctor, you are reminded, sir, you are still under oath. And Mr. Clarke, you may conclude 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, do you recall testifying last week that at the LAPD laboratory where DNA extraction is done that the laboratory does not use a laminar flow hood?
DR. GERDES: Yes, that's correct.
MR. CLARKE: Now, you visited the laboratory; is that correct, in December of `94?
DR. GERDES: Yes.
MR. CLARKE: And you took a tour of the lab, is that a fair description?
DR. GERDES: Yes.
MR. CLARKE: And that tour included the DNA laboratory, correct?
DR. GERDES: Yes.
MR. CLARKE: All right. Your Honor, with the Court's permission I would like to display to the witness exhibit 1301 which is a photograph of the laboratory.
(Brief pause.)
MR. CLARKE: Dr. Gerdes, can you see that from that angle?
DR. GERDES: Yes.
MR. CLARKE: And in particular, with respect to this photograph, does this photo show the hood that you described during your testimony in the DNA lab at the LAPD?
DR. GERDES: It does.
MR. CLARKE: Now, as far as your tour of the laboratory back in December, did you make notes during that tour?
DR. GERDES: Yes.
MR. CLARKE: And in fact did you create rough, let's say, diagrams of various locations at the DNA laboratory at the Los Angeles Police Department?
DR. GERDES: Yes.
MR. CLARKE: Your diagrams included the area where DNA is extracted; is that right?
DR. GERDES: Yes.
MR. CLARKE: As well as where the hood is located?
DR. GERDES: I believe so.
MR. CLARKE: In terms of your keeping those notes, did you attempt to be as accurate as possible, setting aside exact scale?
DR. GERDES: Yeah. There was no scale and it was just to give me a rough idea so that I could go back to those and recall what I had seen.
MR. CLARKE: Now, did you have occasion to provide to the People last Friday notes that you took, including a diagram or diagrams of this particular tour?
DR. GERDES: Yes MR. CLARKE: All right. Your Honor, I would ask to have marked as People's next in order, a single page, which I'm showing to counsel.
THE COURT: 569.
(Peo's 569 for id = 1-page document)
(Discussion held off the record between Defense counsel.)
MR. CLARKE: May I approach the witness, your Honor?
THE COURT: You may.
MR. CLARKE: Dr. Gerdes, showing you People's exhibit 569, does that appear to be a Xerox copy of one of your notes?
DR. GERDES: Yes.
MR. CLARKE: And is that in fact the note that contains a rough sketch or rough diagram of the extraction area at the Los Angeles Police Department?
DR. GERDES: Yes. These notes were taken on 12/19, the first visit.
MR. CLARKE: December, 1994?
DR. GERDES: Correct.
MR. CLARKE: Your Honor, may I display a portion of this note also?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: Now, I don't know, Dr. Gerdes, can you see the screen from there?
DR. GERDES: Yes, I can.
MR. CLARKE: Does this appear to be a--well, the lower portion of that single page of notes, People's exhibit 569?
DR. GERDES: Yes.
MR. CLARKE: And this is your rough sketch or rough diagram of the DNA extraction area at the LAPD?
DR. GERDES: Yes.
MR. CLARKE: Now, there appears to be a fairly long rectangle, comparatively speaking, in the middle of the diagram which is--I'm not sure I can really read it, but it looks like it has two words; is that right?
DR. GERDES: Yes, it says "Sorting."
MR. CLARKE: And?
DR. GERDES: "Sorting bench" I believe is what it says.
MR. CLARKE: Just to the left of where the arrow is located?
DR. GERDES: Yes.
MR. CLARKE: All right. Off to the left of that long rectangle towards the top there appears to be a square with the term "Hood" written inside?
DR. GERDES: Yes.
MR. CLARKE: Now, off to the left of that, what are the other to words that precede the word "Hood"?
DR. GERDES: It says "Lam flow."
MR. CLARKE: Meaning what?
DR. GERDES: Well, at that time I hadn't really noticed that this wasn't a laminar flow hood. I put down "Laminar flow" and I didn't really realize until the second visit that this wasn't a laminar flow hood.
MR. CLARKE: Upon your initial visit to the Los Angeles Police Department you put down "Lam flow hood" to describe that particular hood?
DR. GERDES: Yes. That is incorrect.
MR. CLARKE: All right. Was that a mistake?
DR. GERDES: It was--it was something that I checked later on and found to be a mistake, yes.
MR. CLARKE: Now, Dr. Gerdes, you testified last week that your DQ-Alpha PCR typing is not ready for forensic testing, correct?
DR. GERDES: In my opinion, yes.
MR. CLARKE: And that continues to be your opinion today, correct?
DR. GERDES: Until adequate controls are incorporated to control the contamination problem, that continues to be my opinion.
MR. CLARKE: And it is your opinion that it should be used for either including potential donors of DNA or excluding?
MR. SCHECK: Objection, asked and answered.
THE COURT: Overruled.
DR. GERDES: Yes.
MR. CLARKE: Are you familiar with a method of typing what's called mitochondrial DNA?
DR. GERDES: Yes.
MR. CLARKE: Does that use PCR also?
DR. GERDES: It does to produce a product that is unsequenced.
MR. CLARKE: Okay. Without getting into great detail, does that method involved, after amplifying a sample, basically looking at the pieces of DNA information, these liters, A's, T's, G's and C's one by one?
DR. GERDES: Yes.
MR. CLARKE: Is that a method that is in place in forensic laboratories around the world?
DR. GERDES: Not on a routine basis.
MR. CLARKE: In your opinion is it ready for use in forensics?
DR. GERDES: No.
MR. CLARKE: You referred last week to a number of scientific publications discussing DQ-Alpha as, and I think you used the term "Demonstration papers"?
DR. GERDES: In my opinion, that is what they are, yes.
MR. CLARKE: Now, you have testified for approximately the last five years that PCR DQ-Alpha typing should not be used in forensics, correct?
DR. GERDES: I've been very consistent in expressing my opinions about contamination and my concerns, yes.
MR. CLARKE: And that has been for about five years?
DR. GERDES: Yes.
MR. CLARKE: You have actually come to courtrooms like this and testified the same way as far as that particular opinion?
DR. GERDES: That is--
MR. CLARKE: For the last five years?
DR. GERDES: That's true.
MR. CLARKE: As far as your own laboratory, is it correct that most of the methods that you use in your lab in Denver are methods that don't involve the use of kits?
DR. GERDES: Most of the--no, that is not true.
MR. CLARKE: Are most of the tests that you use tests that do involve the use of kits?
DR. GERDES: Yes.
MR. CLARKE: You mentioned chlymadia. That is one of the tests for a sexually transmitted disease that you use a kit that is actually manufactured by Roche, correct?
DR. GERDES: That's correct.
MR. CLARKE: What are the other tests that you use a kit in?
DR. GERDES: Well, there is the vast majority of the testing our laboratory does; testing for antibodies for HIV, THLV, I can go on and on. It is probably a page-long list of things, most of which we do use FDA-approved kits.
MR. CLARKE: Are any of these kits manufactured--well, let me rephrase. Were any of these kits developed in your own laboratory?
DR. GERDES: No.
MR. CLARKE: Is it then your testimony that most of your methods--well, let me strike that. Rephrase that if I may, your Honor. As far as a grant proposal that you described during your direct examination, do you recall that testimony?
DR. GERDES: Yes.
MR. CLARKE: This related to a grant that you have fairly recently received; is that right?
DR. GERDES: Yes.
MR. CLARKE: That related to a particular technique developed in your laboratory; is that right?
DR. GERDES: It hasn't been developed yet. That is what the grant is for. We are proposing to develop that technology.
MR. CLARKE: So the grant is basically your receiving, your laboratory, receiving money to develop a particular technique?
DR. GERDES: Yes.
MR. CLARKE: As far as that grant, does this process involve your laboratory submitting a proposal to a government agency?
DR. GERDES: Yes.
MR. CLARKE: And then the government--I'm sorry. And the government agency then uses that proposal to decide whether or not to grant your laboratory money to look at this proposed technique?
DR. GERDES: That's correct.
MR. CLARKE: As part of that proposal are you required to describe a number of different things in this application for money?
DR. GERDES: Of course.
MR. CLARKE: Including the technique that you wished to try to devise?
DR. GERDES: That is true.
MR. CLARKE: As well as information about the laboratory?
DR. GERDES: Yes.
MR. CLARKE: As well as information about the individuals who would be involved in developing this technique?
DR. GERDES: That is true.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: Could I have a moment, your Honor?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: Dr. Gerdes, in this particular grant proposal--are you familiar with it?
DR. GERDES: Of course.
MR. CLARKE: And you have read the entire document?
DR. GERDES: I wrote it.
MR. CLARKE: You wrote the entire document? All right. Isn't it true that in that document you state, in reference to your laboratory: "Most of our testing could be described as home-brewed as opposed to commercial kits."
MR. SCHECK: Your Honor, ask that the witness be shown the entire paragraph.
THE COURT: Show him what page it is.
MR. CLARKE: Dr. Gerdes, if I can refer you to what appears to be page 31 of the proposal.
DR. GERDES: What part of this page are you at? Oh, here, I see it. Okay.
MR. CLARKE: That statement that I just read, was that a statement that you wrote in that proposal?
DR. GERDES: Yes. It refers to the fact that in our laboratory we do go through some research and development and then it is progressed onto testing that is routine, and it has to do with our research and development department. It has nothing to do with the testing menu that we offer at the present time, which is what you asked me initially.
MR. CLARKE: Well, is it then correct that most of the testing methods in your laboratory are, quote, home-brewed?
DR. GERDES: Most of the newer methods. This is talking about the next generation, if you will, from our laboratory. Most of what we do at the present time are kits that are FDA approved. What we hope to do is to move into the field of development of new diagnostic technologies, and we have been involved in that process over the--since I have been hired. That is one of my jobs. But we are not yet using those types of testing for routine testing.
MR. CLARKE: What does "Home-brewed" mean?
DR. GERDES: It simply means that you are developing the test yourself, as opposed to buying a kit.
MR. CLARKE: You have described the chlymadia test kit as FDA approved, correct?
DR. GERDES: Correct.
MR. CLARKE: What are the other testing kits in case work that are FDA approved in your lab?
DR. GERDES: For DNA?
MR. CLARKE: Yes.
DR. GERDES: That would be the only one for DNA. All of the kits that we use, other than that particular kit, involve serological methods.
MR. CLARKE: Which don't involve testing DNA?
DR. GERDES: Correct.
MR. CLARKE: Could I have just a moment again, your Honor?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, as far as degraded samples, Dr. Gerdes, and we spoke about that last week, your concern about the reliability of results obtained using PCR-based testing in forensics is based really on the nature of the specimen? In other words, the fact that it is a bloodstain that may have been on a sidewalk as opposed to blood removed from a patient in a hospital; is that correct?
DR. GERDES: That is one of the aspects, yes.
MR. CLARKE: Now, as far as this use of DQ-Alpha testing, are you familiar with its use on cases in which defendants have been, for instance, in prison for a number of years?
DR. GERDES: Yes.
MR. CLARKE: And in fact DQ-Alpha testing has been used to determine years later that a person may have been innocent of a crime; is that correct?
DR. GERDES: It has been done for that, yes.
MR. CLARKE: And in fact inmates have been released from prison as a result of the--I'm sorry--as a result of typing results obtained by using this PCR DQ-Alpha method?
DR. GERDES: That's true.
MR. CLARKE: Those cases may involve cases that occurred years earlier; is that correct?
DR. GERDES: That's true.
MR. CLARKE: Your concerns about degraded samples would apply equally to those cases as well; isn't that true, where the samples may be years old?
DR. GERDES: Yes.
MR. CLARKE: Is it your view that in those--under those circumstances that inmates should not be released from prison as a result of DQ-Alpha typing conducted what may be years later?
MR. SCHECK: Objection, calls for a legal conclusion.
THE COURT: Overruled.
DR. GERDES: I think you have to take every case by case in terms of how much weight to put on that or whatever, but my position has always been consistent that until you have more adequate controls, and in specific in those kind of samples where they are old, degraded and in small quantities, this technology has a tremendous risk of error.
MR. CLARKE: As far as the samples that were not amplified and typed at the Los Angeles department--and I asked you a number of questions of about that last week, correct?
DR. GERDES: Excuse me. Go ahead.
MR. CLARKE: Sure. As far as the samples that were not amplified and typed, in other words, they weren't subjected to this PCR process and typed at the LAPD, do you recall that?
DR. GERDES: Yes.
MR. CLARKE: Isn't it true that independent laboratories who reach the same results adds confidence to the results themselves? In other words, the layer or level of confidence that an analyst can have in the accuracy of those results?
DR. GERDES: It will give you confidence from that step on, but what happens in the previous steps can't be cross-checked.
MR. CLARKE: Isn't it correct, Dr. Gerdes, that if you work in two separate labs and try and come up independently with the same result, then that is always going to be a confirmation of the test and give you more reliability?
DR. GERDES: Only if neither--both labs handled totally those specimens independently. That means they are collected and sent, as we have described earlier in the clinical situation, to both labs and are never exposed one lab to the other.
MR. CLARKE: Haven't you previously testified to what I just stated, Dr. Gerdes?
DR. GERDES: Of--I may have, but that was prior to more recent cases where it has become more and more obvious that there are problems early on.
MR. CLARKE: Objection, move to strike. Nonresponsive, your Honor.
THE COURT: Sustained. The last part of the answer is stricken. The jury is to disregard.
MR. CLARKE: Dr. Gerdes, haven't you testified previously to what I just read to you?
DR. GERDES: Yes.
MR. CLARKE: Samples 48, 50 and 52, the bloodstains at Bundy, were swatches sent to different laboratories, correct?
DR. GERDES: Correct.
MR. CLARKE: As far as Cellmark is concerned--and I would like to shift your attention to known samples or if we use the term "Reference samples," can that indicate, as far as these questions, we are talking about known samples from the people who may be involved in a case, all right?
DR. GERDES: Correct.
MR. CLARKE: Referring in this case to Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: As well as Nicole Brown and Ronald Goldman?
DR. GERDES: Yes.
MR. CLARKE: Isn't it correct that when Cellmark conducted its testing on the known samples they were done blindly?
DR. GERDES: They were coded, yes.
MR. CLARKE: And by "Coded," what do you mean?
DR. GERDES: They were given a code number when they arrived at the laboratory and then the technician would type it from there.
MR. CLARKE: Well, in addition--
DR. GERDES: So blinded if you want to call it that, yes.
MR. CLARKE: In addition to having a code number, isn't it correct that the actual known reference samples weren't labeled for Cellmark's purposes as to who of the three people they came from?
DR. GERDES: As they received them?
MR. CLARKE: Yes.
DR. GERDES: I don't recall if that is the case. I believe--I know they were labeled with a code name, but I'm not sure if they will have the information as to who they he were from. I would have to double-check.
MR. CLARKE: All right. Do you have information at your hand would be able--I'm sorry--help you answer that question?
DR. GERDES: Perhaps--perhaps I do.
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: That appears to be correct. They were labeled with a code name and it doesn't have who it is next to it.
MR. CLARKE: So Cellmark was in fact given these known samples and they were coded C-1, C-2 and C-3, weren't they?
DR. GERDES: That's correct.
MR. CLARKE: And they were not given information about which sample was Mr. Simpson's?
DR. GERDES: That's correct.
MR. CLARKE: Which sample was Mr. Goldman's?
DR. GERDES: That's correct.
MR. CLARKE: And what sample was Nicole Brown's?
DR. GERDES: Correct.
MR. CLARKE: In your opinion that is an important step?
DR. GERDES: I think that is the way to do it, yes.
MR. CLARKE: Isn't it also correct that as far as the DQ-Alpha types that the Department of Justice typed that those reference samples were done after most of the evidence was typed?
DR. GERDES: I believe that is true.
MR. CLARKE: And in fact isn't it true that the known samples were not typed until after there were PCR results on several of the Bundy blood drops at the Department of Justice?
DR. GERDES: I don't recall if that is specifically the case, but that is possible.
MR. CLARKE: After several of the stains from the Bronco were tested by the Department of Justice?
DR. GERDES: That is possible.
MR. CLARKE: Well, isn't it true?
DR. GERDES: I don't recall. I can look it up if you would like and try and look that up.
MR. CLARKE: Is that something you think you can find in your notes?
DR. GERDES: I think I can.
MR. CLARKE: All right.
(Brief pause.)
DR. GERDES: That appears to be the case, yes.
MR. CLARKE: Those reference samples were typed, after, for instance, one of the blood trail at Rockingham was typed, one of those drops also?
DR. GERDES: That's correct. That's correct.
MR. CLARKE: As well as most of the samples on the glove?
DR. GERDES: Yes.
MR. CLARKE: As well as most of the samples on the socks as well?
DR. GERDES: At DOJ, yes.
MR. CLARKE: In your view is that also an important step to take, to type those reference samples after evidence is typed?
DR. GERDES: I think that was appropriate.
MR. CLARKE: Now, I would like to return, if I could, Dr. Gerdes, to the fact that in your laboratory you develop methods for use in DNA typing in your lab, correct?
DR. GERDES: Correct.
MR. CLARKE: Part of your function at the laboratory--and I believe you said you are director of the research and development arm of the lab?
DR. GERDES: That is one of the titles I have, yes.
MR. CLARKE: And in that role, as far as the research and development role of the laboratory, you try to develop methods that other laboratories can use, correct?
DR. GERDES: Yes.
MR. CLARKE: And in fact your proposal for a grant is one such proposal, to develop a specific technique to type DNA that other laboratories can use?
DR. GERDES: Hopefully, yes.
MR. CLARKE: You want to make sure that your techniques operate properly before they are used, for instance, in clinical case work?
DR. GERDES: Of course.
MR. CLARKE: That is absolutely essential, isn't it?
DR. GERDES: Of course.
MR. CLARKE: You also want to be able to market or sell these methods as quickly as possible; isn't that correct?
DR. GERDES: Yes.
MR. CLARKE: Is your laboratory committed to rapidly implementing DNA technology to diagnostic testing?
DR. GERDES: We--yes.
MR. CLARKE: And in fact you want to get these new techniques out there and marketed as soon as possible, correct?
DR. GERDES: We have a projection as to how long this will take. The technology we are describing is so new it is going to take three to five years before we even confirm the technology itself, but we are really not talking about marketing for that many years.
MR. CLARKE: Well, Dr. Gerdes, isn't it true that your laboratory is committed to getting these newly developed techniques into the clinical laboratory as quickly as possible?
DR. GERDES: We would--we would like that, yes.
MR. CLARKE: And in fact that is what you told the United States government as far as your grant proposal, didn't you?
DR. GERDES: Yes.
MR. CLARKE: As far as--we've talked about PCR as one technique. There is also the technique of RFLP that you have discussed in your direct examination, correct?
DR. GERDES: Yes.
MR. CLARKE: Can we call those different methods or methodologies? What word would you feel comfortable with to describe that there are two different techniques?
DR. GERDES: Different methods is fine.
MR. CLARKE: Isn't it correct that a consistency in result, that is a result is giving the same answer from both PCR testing as well as RFLP testing on the same sample, is one measure of the accuracy of the PCR technique?
DR. GERDES: It does tell you some information. The RFLP is a more discriminating test, so you would expect that there would be a number of occasions where the PCR would include someone and RFLP would exclude them.
MR. CLARKE: Okay. And that is certainly one characteristic of RFLP typing, that it is more powerful in telling people apart, correct?
DR. GERDES: Correct.
MR. CLARKE: If you saw PCR results that, for instance, exclude someone and from the same sample an RFLP included the person, that would give you great pause for concern about PCR typing, wouldn't it?
DR. GERDES: Not necessarily. It depends on how many probes and in any genetic analysis you look at multiple markers, and once you find an exclusion, if it is confirmed, especially, then you have to believe that.
MR. CLARKE: Well, let's make it more specific. Let's say that on a particular sample you saw a five-probe RFLP match. That would be powerful evidence of who that sample came from, wouldn't it?
DR. GERDES: It would.
MR. SCHECK: Objection, vague.
THE COURT: Overruled.
MR. CLARKE: If you saw a PCR result on the same sample that revealed results that excluded that person, wouldn't that give you concern about the PCR result?
DR. GERDES: In a forensic setting, yes.
MR. CLARKE: So therefore if there is consistency between the RFLP results and PCR results, doesn't that give you greater confidence in the PCR results?
DR. GERDES: It can.
MR. CLARKE: Well, haven't you testified previously, Dr. Gerdes, that you have no problem with the RFLP technology?
DR. GERDES: I have.
MR. CLARKE: And you have testified in this case that you have no problem with several of the RFLP matches in this case; isn't that true?
DR. GERDES: That's right.
MR. CLARKE: Isn't it in fact the case that if there is an RFLP match on a sample, in your opinion that validates the PCR result on that sample?
DR. GERDES: It can.
MR. CLARKE: Haven't you previously testified that it does?
DR. GERDES: I probably have in the past, yes.
MR. CLARKE: Isn't it true that if there is an RFLP match on the same sample that a PCR result is obtained, that that RFLP match confirms the PCR result on that sample?
DR. GERDES: Of course you have to look at the sample. Even in RFLP there are going to be circumstances where those kind of results need to be looked at with suspicion in terms of whether it is a mixed sample and the same sorts of issues that we discussed earlier in general in terms of DNA technology and forensics, so you can't make a broad blanket general statement like that. You need to look at the circumstances for each item even in an RFLP test.
MR. CLARKE: Dr. Gerdes, haven't you previously testified that if you get a PCR result on a sample and you already have an RFLP result on that sample, that that RFLP result confirms the PCR result?
DR. GERDES: Assuming there are no difficulties or suspicions about the nature of the sample or mixtures or other complications like that.
MR. CLARKE: Isn't it true, doctor, that if you cross-check the PCR results and RFLP results on enough samples in a given case that that is a significant method of validation?
DR. GERDES: I wouldn't call it validation.
MR. CLARKE: Haven't you used those exact words, Dr. Gerdes?
DR. GERDES: I believe maybe three years ago I might have.
MR. CLARKE: And in fact those words that you used were just as I stated to you, were they not, that if you cross-check the PCR results and RFLP results in a given case on enough samples that that is in fact a significant method of validating the accuracy of the PCR results?
DR. GERDES: I probably said that, but you have to look at the context around that. I'm sure I also said that you have to look at the sample and the things that I've talked about here.
MR. CLARKE: When you said it, did you mean it?
DR. GERDES: Yes.
MR. CLARKE: May I have a moment, your Honor?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Gerdes, didn't you in fact testify to what I just read to you less than one year ago?
DR. GERDES: I don't remember how long ago it was.
MR. SCHECK: Your Honor, I think that we have--should have an opportunity to see what he is referring to. We thought those were the rules.
THE COURT: Overruled at this point, but if you are going to confront him with some specifics, we need to see it.
MR. CLARKE: I understand.
MR. CLARKE: Do you recall testifying in a case involving a Defendant named McIntosh in the state of California?
DR. GERDES: Yes, I do.
MR. CLARKE: Isn't it correct that in that case you testified to the fact that if there is this cross-check on enough samples that that is a significant method of validation?
MR. SCHECK: Objection, needs to be confronted with the specifics.
THE COURT: Objection. The form of the question.
MR. CLARKE: Dr. Gerdes, with regard to this McIntosh case, didn't you testify in that case under a year ago?
DR. GERDES: Yes.
MR. CLARKE: Isn't it in that case that you made the specific comments that I just read to you?
DR. GERDES: I may have.
MR. SCHECK: Your Honor, I have--
THE COURT: Counsel, do you have volume, line, page?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Can we approach the bench?
THE COURT: You need to have that.
MR. CLARKE: (Nods head up and down.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: May I proceed and return to that, your Honor?
MR. SCHECK: Your Honor, I'm going to move to strike unless he can show the specific reference.
THE COURT: Overruled. Proceed.
MR. CLARKE: Thank you.
THE COURT: It will be subject to a motion to strike, though.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: In your view, Dr. Gerdes, is a 5-probe RFLP match a significant match?
DR. GERDES: Yes.
MR. CLARKE: What about a 6-probe match? Is that significant?
DR. GERDES: Yes.
MR. CLARKE: An 8-probe match?
DR. GERDES: Yes.
MR. CLARKE: Is a 14-probe match on a sample significant as far as RFLP typing?
DR. GERDES: Yes.
MR. CLARKE: Is a 14-probe match significant whether it is PCR or RFLP on a sample?
DR. GERDES: It depends on the samples. We need to--again, you know, all of these are significant in terms of the number of matches, but you have to, of course, take into consideration the nature of the sample, whether there is a mixture or not. There are other things that complicate this issue. I can't just give you a blanket statement that that many probes is significant unless I know the nature of the samples and whether they are mixtures and those sorts of issues.
MR. CLARKE: If you see a sample that is a 6-probe match that is showing either one or two bands that clearly match the one or two bands that an individual has, that is a significant match, isn't it?
MR. SCHECK: Objection, "Validated."
THE COURT: Overruled.
DR. GERDES: Yes.
MR. CLARKE: Whether it is eight or fourteen, if six is significant, anything more is significant; is that right?
DR. GERDES: That's true.
MR. CLARKE: As far as this case did you examine the RFLP results obtained by the laboratories in this case?
DR. GERDES: I did.
MR. CLARKE: And you are familiar with them?
DR. GERDES: Yes.
MR. CLARKE: Isn't it correct, Dr. Gerdes, that as far as the RFLP and PCR results in this case that the RFLP results confirm the PCR results in this case?
DR. GERDES: In certain items, yes.
MR. CLARKE: It is true on a number of items, isn't it?
DR. GERDES: Yes.
MR. CLARKE: And in fact this case involves many RFLP matches, doesn't it?
DR. GERDES: Yes.
MR. CLARKE: Have you seen a case with more RFLP matches in your history of consulting with criminal defendants?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. CLARKE: Your Honor, at this time I have a board that I would like to be marked as People's next in order.
THE COURT: 570--570.
(Peo's 570 for id = posterboard)
MR. CLARKE: 570?
THE COURT: 570.
(Brief pause.)
MR. CLARKE: Actually would it--I think in the normal place if that is acceptable.
DR. GERDES: May I step down?
MR. CLARKE: Yes, please, doctor. Thank you.
DR. GERDES: (Witness complies.)
MR. CLARKE: Now, Dr. Gerdes, I would like to show you what has been marked People's exhibit 570, I believe.
THE COURT: 570.
MR. CLARKE: This board is entitled at the top "Results of RFLP DNA analysis"; is that right?
DR. GERDES: Yes.
MR. CLARKE: And then there appear to be a number of different samples listed on the far left; is that right?
DR. GERDES: Yes.
MR. CLARKE: And then across on the right are columns entitled basically which laboratory produced the result?
DR. GERDES: Yes.
MR. CLARKE: Followed by what the RFLP results were in terms of the number of probes?
DR. GERDES: Yes.
MR. CLARKE: And then lastly, individuals who are not excluded from those particular samples as having been the donors of the DNA; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Now, turning your attention first, there appear to be four samples from LAPD item no. 9, the glove; is that correct?
DR. GERDES: Yes.
MR. CLARKE: And on those--and let's start with the first sample and can we use G1? Is that a way of telling the four samples apart?
DR. GERDES: Yes.
MR. CLARKE: That sample revealed results from the Department of Justice after testing at five RFLP probes, correct?
DR. GERDES: Correct.
MR. CLARKE: And those results excluded, that is, indicated a mixture of Nicole Brown and Ronald Goldman, correct?
DR. GERDES: Correct.
MR. CLARKE: In your testimony you have not criticized the accuracy of that result, correct?
DR. GERDES: That's correct.
MR. CLARKE: And in fact in your testimony you have conceded that that result is accurate?
DR. GERDES: Yes.
MR. CLARKE: Incidentally, when you use the term, what does a significant match mean? I'm not sure that question was clear. Let me rephrase it. As far as a 5-probe match or a 6-probe match and so on being a significant match, what does the term "Significant" mean in that context to you?
DR. GERDES: Umm, as you know, there is a controversy as to how--you know, what level of significance there is, but in my opinion five probes would be certainly very significant in terms of putting some weight as to that match.
MR. CLARKE: And in fact in your opinion that would be strong evidence that in fact a sample that matches at five probes came from a particular individual who matches that sample?
DR. GERDES: Again, it is controversial and I am not a population biologist, I am not involved in that controversy, but that is--it would be, in my opinion, significant.
MR. CLARKE: When you perform a paternity analysis how many probes do you routinely use in determining whether or not a father is the father of a child?
DR. GERDES: Paternity you are comparing apples and oranges. It is different statistics, it is done in an entirely different way, so it is really not a good comparison, but we do use five probes.
MR. CLARKE: Five probes?
DR. GERDES: Yeah.
MR. CLARKE: Would that be the same number as were used on at least item G1?
DR. GERDES: Yes.
MR. CLARKE: All right. Turning to G2, those results reflected a 5-probe RFLP match to both Nicole Brown and Ronald Goldman, correct?
DR. GERDES: Correct.
MR. CLARKE: And you have no scientific criticism of that result?
DR. GERDES: No.
MR. CLARKE: Turning to G3, that result revealed an 8-probe match to Ronald Goldman, correct?
DR. GERDES: Yes.
MR. CLARKE: And in your view that result was appropriate, correct?
DR. GERDES: Yes.
MR. CLARKE: And then lastly on the gloved area, G4, the results showed a 5-probe RFLP match to both Ronald Goldman and Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: No criticism of that result?
DR. GERDES: That's correct.
MR. CLARKE: Turning to the Rockingham foyer, item no. 12, Cellmark produced a 5-probe match to Mr. Simpson using RFLP, correct?
DR. GERDES: Correct.
MR. CLARKE: You don't have any criticism of the accuracy of the results obtained by Cellmark, correct?
DR. GERDES: That's correct.
MR. CLARKE: Turning to the sock, in fact there were a total of, and let's start with the ankle area, both the Department of Justice and Cellmark tested the ankle area of the sock using RFLP, correct?
DR. GERDES: Correct.
MR. CLARKE: That testing revealed at the Department of Justice an 11-probe match to Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: Cellmark also probed staining from that same sample at five probes; is that right?
DR. GERDES: Correct.
MR. CLARKE: How many probes does that total?
DR. GERDES: Sixteen.
MR. CLARKE: Is that then a 16-probe with Nicole Brown?
DR. GERDES: It is.
MR. CLARKE: If two of the probes used by Cellmark and DOJ were the same, would it then be a 14-probe match in reality?
DR. GERDES: Yes.
MR. CLARKE: And that is in fact the case, isn't it, Dr. Gerdes?
DR. GERDES: Yes, yes.
MR. CLARKE: That two of the probes used by those laboratories are the same?
DR. GERDES: Yes.
MR. CLARKE: You have no quarrel with the accuracy of the results on the sock; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Turning to the Bundy walkway, item no. 52, Cellmark produced a 5-probe match with Mr. Simpson, correct?
DR. GERDES: Correct.
MR. CLARKE: And in fact that data correctly reveals a 5-probe match with Mr. Simpson, correct?
DR. GERDES: In this particular item there is very little DNA and in this particular item I disagree with that.
MR. CLARKE: Is it your opinion that Dr. Cotton was incorrect when she concluded that that match existed with regard to Mr. Simpson?
DR. GERDES: She is not incorrect in concluding the match, but the source of the DNA here is what the issue is. That is where the question is. There is very little DNA. It is down at the level of DNA where cross-contamination could be the explanation and the circumstances under which that particular item was handled makes that a distinction possibility.
MR. CLARKE: Dr. Gerdes, is it your testimony that the RFLP results on item no. 52 came from contamination?
DR. GERDES: Yes.
MR. CLARKE: And in fact is it your opinion to a reasonable scientific certainty that item 52 revealed DNA that was not from the donor of the bloodstain but in fact came from another source?
DR. GERDES: I think it is consistent with that.
MR. CLARKE: You are not offering an opinion that it came, but you are raising the possibility; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: Turning to item no. 78, the drop that revealed a 5-probe match to Nicole Brown and Ronald Goldman, correct?
DR. GERDES: Correct.
MR. CLARKE: And then lastly on this board, referring to item no. 117, the Bundy rear gate, first of all, how many probes--there doesn't appear to be anything written in under "RFLP results," correct?
DR. GERDES: Correct.
MR. CLARKE: Can you tell us how many probes that sample matched Mr. Simpson at?
DR. GERDES: I don't recall offhand. At least five, but I'm not sure how many they--
MR. CLARKE: All right. Is that something that you can determine from your notes?
DR. GERDES: I did not bring the RFLP notes with me.
MR. CLARKE: Are they available in the courtroom?
DR. GERDES: (No audible response.)
MR. CLARKE: As far as your notes?
DR. GERDES: My notes, no.
MR. CLARKE: Yes. All right.
MR. SCHECK: I could suggest--
MR. CLARKE: I'm sorry.
MR. SCHECK: --the results board has them.
THE COURT: Proceed.
MR. CLARKE: Object to counsel's comments.
THE COURT: Proceed.
MR. CLARKE: Dr. Gerdes, are you guessing it was at five probes?
DR. GERDES: Until I look that up I don't know exactly how many probes there were on that particular item.
MR. CLARKE: Your testimony has revealed you have no criticism of that match to Mr. Simpson; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: All right. Thank you, your Honor.
(Brief pause.)
MR. CLARKE: Incidentally, Dr. Gerdes, you are not familiar with the fact that there were serology tests conducted on many of these evidence items, correct?
MR. SCHECK: Asked and answered.
THE COURT: We have gone over this.
MR. CLARKE: Merely foundational to the next question.
THE COURT: All right. Proceed.
DR. GERDES: I'm not familiar with the--I have not seen the reports. I am familiar that they were done, but I'm not familiar with the specifics.
MR. CLARKE: Isn't it true that if the serology results confirmed--well, let me rephrase. Isn't it true that if the serology results were consistent with the PCR results that serology would be another methodology that the accuracy of the PCR results can be cross-checked against?
MR. SCHECK: Objection, asked and answered, beyond the scope.
THE COURT: Sustained. You have already asked that question.
MR. CLARKE: Do you utilize serology to confirm the accuracy of any of the results in your own laboratory?
DR. GERDES: It is the other way around. We have serological tests where we may do PCR to confirm that.
MR. CLARKE: So you use PCR to confirm the accuracy of your serology results?
DR. GERDES: In certain circumstances.
MR. CLARKE: Incidentally, serologic techniques aren't nearly as sensitive as PCR, correct?
DR. GERDES: That's correct.
MR. CLARKE: It would be much harder to cross-contaminate a sample and obtain serological results than it would a PCR result, correct?
DR. GERDES: In general that is true, yes.
MR. CLARKE: In other words, cross-contamination isn't the same concern with serologic techniques because they are not as sensitive as PCR is to detect small amounts?
DR. GERDES: It depends--you have to look at the specific test and so forth, but in general that is true.
MR. CLARKE: As far as cross-checking by these different techniques, PCR and RFLP, isn't it true that additional markers beyond DQ-Alpha, such as polymarker, the five polymarkers and D1S80, give the analyst an opportunity to cross-check the accuracy of results even more?
DR. GERDES: Again, you have to talk about the specifics and in the polymarker system there is a 2-probe--in most cases there are two allele systems. You know, two of them are three-allele and the rest are two-allele systems, and if you are dealing with mixtures, such as a contaminant would introduce, it is frequently not informative because you have only two, you have an a and a B, and if you have both, then that includes everybody, so it is not quite as informative as DQ-Alpha being able to look at the possibility of additional human DNA being there.
MR. CLARKE: In other words, as to the polymarkers, they don't have a lot of different variations, correct?
DR. GERDES: Right.
MR. CLARKE: Individually?
DR. GERDES: That's correct.
MR. CLARKE: But they can present very informative results when you look at many of them, such as the five?
DR. GERDES: It is possible, yes.
MR. CLARKE: D1S80 is another marker, correct?
DR. GERDES: Yes.
MR. CLARKE: And in fact it has more variations or different possible types than the five polymarkers?
DR. GERDES: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, I would like, with the Court's permission, to use People's exhibit 259, the Bundy results board.
(Brief pause.)
MR. CLARKE: Now, Dr. Gerdes, have you had an opportunity to see either this board or a board containing similar information?
DR. GERDES: Yes.
MR. CLARKE: All right. And I would like to start, if I could, with what is labeled at the top "Item no. 47, first drop by victims."
DR. GERDES: Yes.
MR. CLARKE: That particular sample was typed using PCR, correct?
DR. GERDES: It was.
MR. CLARKE: And how many different genetic markers produced a result consistent with Mr. Simpson?
DR. GERDES: Well, there were the--the DQ-Alpha, D1S80 and the polymarkers.
MR. CLARKE: Which would be how many total genetic markers?
DR. GERDES: Seven.
MR. CLARKE: Turning your attention to item 48, how many genetic markers produced a result on that particular item from the Bundy walkway that were consistent with Mr. Simpson?
DR. GERDES: Seven.
MR. CLARKE: Same seven genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Turning now to item 49, how many genetic markers produced that result using PCR consistent with Mr. Simpson?
DR. GERDES: They didn't get a D1S80, so that would be six.
MR. CLARKE: Turning to item no. 50, how many PCR-based genetic markers produced that sample result consistent with Mr. Simpson?
DR. GERDES: Seven.
MR. CLARKE: Turning to item no. 52, there were five RFLP probes consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: Were there also PCR markers that produced results consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: How many?
DR. GERDES: The seven.
MR. CLARKE: Is it then the case that item 52 matched Mr. Simpson at twelve different genetic markers?
DR. GERDES: Again the issue here is the origin of that blood--
MR. CLARKE: Objection, move to strike, nonresponsive.
DR. GERDES: --not the match.
THE COURT: Sustained. Ask the question again.
MR. CLARKE: Dr. Gerdes, isn't it correct that item no. 52, the Bundy blood drop, matched Mr. Simpson at twelve different genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Item no. 56--and first of all, let me return for a moment, if I can, to 47 through 52. Isn't it correct that the PCR-based results for 47, 48, 49, 50 and 52 were all consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: In that series of five blood drops it is also correct that an RFLP match existed to Mr. Simpson, correct?
DR. GERDES: Correct.
MR. CLARKE: Turning to item no. 56, how many genetic markers typed using PCR were consistent with Nicole Brown?
DR. GERDES: Five.
MR. CLARKE: In other words, the five polymarkers, correct?
DR. GERDES: Right.
MR. CLARKE: And you would not include DQ-Alpha because one of the controls didn't operate properly?
DR. GERDES: Correct.
MR. CLARKE: Turning to item no. 78, how many PCR markers were consistent with both Ronald Goldman and Nicole Brown?
DR. GERDES: Well, there is a problem with that particular combination. Okay. I will--D1S80--there is six.
MR. CLARKE: In other words, the five polymarkers and the DQ-Alpha result, those types showed a mixture, correct?
DR. GERDES: Yes.
MR. CLARKE: And that mixture from those six PCR markers; is that right?
DR. GERDES: Yes.
MR. CLARKE: And in fact the results of those six markers showed that neither Nicole Brown nor Ronald Goldman could be excluded, correct?
DR. GERDES: Again when you get to mixtures on the polymarker, you really need to look at those systems that are informative in terms of if you have a combination that picks up both of them, then it includes everybody.
MR. CLARKE: And in fact as to some of the polymarker results in mixtures, that is true, isn't it, where you see each of the combinations possible?
DR. GERDES: Yes.
MR. CLARKE: Turning to--and while we are on 78, as far as the RFLP technology, you have no quarrel with the fact that that particular sample produced a 5-probe RFLP match to both Nicole Brown and Ronald Goldman?
DR. GERDES: That is true.
MR. CLARKE: Would that then constitute eleven different genetic markers as to that sample?
DR. GERDES: Yes.
MR. CLARKE: Turning to the nail clippings, and perhaps we can deal with them all at once, did they produce the same results on each of the three separate items?
DR. GERDES: Yes.
MR. CLARKE: How many different genetic markers produced results consistent with Nicole Brown on each of them?
DR. GERDES: Seven.
MR. CLARKE: And lastly, turning to the rear gate, stains 115, 116 and 117, as to item no. 117, does eight probes sound correct?
DR. GERDES: Yes.
MR. CLARKE: As to the RFLP match with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: How many different PCR markers were also consistent with Mr. Simpson?
DR. GERDES: There is two.
MR. CLARKE: Referring to DQ-Alpha and D1S80?
DR. GERDES: Correct.
MR. CLARKE: Dr. Gerdes, isn't it the case that with respect to the Bundy blood results the RFLP results confirm the PCR markers, whether it is one marker or all seven markers?
DR. GERDES: On that one item, which--it does on the face of it, yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Your Honor, at this time I would like to use exhibit 260, a similar results board.
THE COURT: All right.
(Brief pause.)
MR. CLARKE: Dr. Gerdes, referring you to what is People's exhibit 260, have you again either seen this board or a board with similar results?
DR. GERDES: Yes.
MR. CLARKE: This board contains a number of results obtained using PCR, correct?
DR. GERDES: Yes.
THE COURT: And for the record, this is "Results of DNA analysis of the Bronco."
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Referring you to the first sample, item no. 23, from the interior of the Bronco, did that produce a result consistent with Mr. Simpson at one genetic marker typed following PCR?
DR. GERDES: Yes.
MR. CLARKE: Does this board in fact show PCR results only from inside the Bronco?
DR. GERDES: Yes.
MR. CLARKE: Referring you to the second item, no. 24, how many genetic markers were typed that were consistent with Mr. Simpson?
DR. GERDES: One.
MR. CLARKE: Referring to 25, how many genetic markers were typed consistent with Mr. Simpson?
DR. GERDES: Two.
MR. CLARKE: Turning to the steering wheel, item no. 29, first of all, how many genetic markers were actually typed following PCR?
DR. GERDES: Six.
MR. CLARKE: And with regard to those samples, is it your opinion also that from a review of those results that neither Mr. Simpson nor Nicole Brown can be excluded?
DR. GERDES: Yes.
MR. CLARKE: Item no. 30, how many PCR genetic markers were used?
DR. GERDES: There are two.
MR. CLARKE: And 31?
DR. GERDES: Two.
MR. CLARKE: From the sidewall, item no. 34, how many?
DR. GERDES: One.
MR. CLARKE: Incidentally, 30--I neglected to ask this. 30 produced a result from two markers consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: 31 produced a result at two markers consistent with both Mr. Simpson and Ronald Goldman?
DR. GERDES: Again this is the item where the weak 1.3 is in contention as far as I'm concerned, but that is what they say here, yes.
MR. CLARKE: In other words, you have some criticism of the interpretation of that 1.3 allele, correct?
DR. GERDES: That's correct.
MR. CLARKE: Turning to item no. 34, that result at one marker was consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: What about item 293, the carpet on the driver's side, how many markers produced results that were consistent with Nicole Brown?
DR. GERDES: There are two.
MR. CLARKE: And then lastly, if we can deal with 303, 304 and 305 together, were there in fact two genetic markers that were typed following PCR with those evidence samples?
DR. GERDES: These are the evidence items, this last bunch, that were collected one month later.
MR. CLARKE: Objection, move to strike, nonresponsive.
THE COURT: Sustained. Answer is stricken. The jury is to disregard. Ask the question again.
MR. CLARKE: Dr. Gerdes, items 303, 304 and 305 were typed at how many genetic markers following PCR?
DR. GERDES: Two.
MR. CLARKE: Did they in fact produce results not excluding Mr. Simpson, Ronald Goldman or Nicole Brown?
DR. GERDES: That is what is listed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: And then lastly, your Honor, at this time I would like to utilize exhibit 262, a similar results board.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Doctor, again, People's exhibit 262, is that a board again similar to one that you have seen either in this form or a different form?
DR. GERDES: Yes.
MR. CLARKE: And with regard to the results starting with sock no. 13, that is the particular item that produced what was a total of a 16-probe match, but was fourteen different probes consistent with Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: You have conceded or you have offered the opinion that that 14-probe match is in fact a correct one; is that right?
DR. GERDES: Correct.
MR. CLARKE: With regard to that, is that a significant match at fourteen probes?
DR. GERDES: Yes.
MR. CLARKE: And in fact that is--in your opinion would that be an extremely significant match?
DR. GERDES: Again, there is controversy as to how to weigh these things, but in my opinion it is, yes, it would be.
MR. CLARKE: I'm sorry, yes, it would be?
DR. GERDES: Yes.
MR. CLARKE: That sample was typed also at PCR-based markers, wasn't it?
DR. GERDES: Yes.
MR. CLARKE: How many?
DR. GERDES: Two. Well, sorry, seven.
MR. CLARKE: So seven different genetic markers typed following PCR achieved the same results as far as consistency with Nicole Brown as the fourteen RFLP probe matches, correct?
DR. GERDES: Correct.
MR. CLARKE: In your opinion is that an example of an important cross-check between PCR and RFLP results?
DR. GERDES: It can be looked at as a cross-check, yes.
MR. CLARKE: It is a cross-check, isn't it?
DR. GERDES: Yes.
MR. CLARKE: If one of those PCR results produced a result that wasn't consistent with Nicole Brown, wouldn't that potentially raise a question about the reliability of PCR typing in forensics?
DR. GERDES: Yes.
MR. CLARKE: That didn't occur in this case, did it, on this sample?
DR. GERDES: Not on this sample.
MR. CLARKE: Turning to the remainder, and perhaps we can deal with the remaining samples, that is five more evidence items, correct?
DR. GERDES: Yes.
MR. CLARKE: And they were typed at two different genetic markers following PCR?
DR. GERDES: Yes.
MR. CLARKE: They all produced, at least with regard to--we better break it down a little bit.
DR. GERDES: Yes.
MR. CLARKE: 42A-2 produced results consistent with Mr. Simpson at two markers, correct?
DR. GERDES: Correct.
MR. CLARKE: 42A-3 was actually typed using both PCR and RFLP, correct?
DR. GERDES: Correct.
MR. CLARKE: And in fact the RFLP results revealed an 8-probe match to Mr. Simpson on 42A-3?
DR. GERDES: Yes.
MR. CLARKE: The PCR results were consistent with that RFLP result, weren't they?
DR. GERDES: Yes.
MR. CLARKE: And in fact the PCR results and the RFLP results were the same in being consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: Turning to 42A-4, was that typed at two different PCR genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Did that in fact produce a result consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: And then lastly, turning to 42B-1 and 42B-2, how many genetic markers were typed with those two samples?
DR. GERDES: Two.
MR. CLARKE: Producing results consistent with Nicole Brown, correct?
DR. GERDES: With the exception of 42B-2 where this trace 1.2 needs to be interpreted.
MR. CLARKE: In your view is that possible trace 1.2 the result of real DNA or not?
DR. GERDES: That is the issue here. When you have traces in the system, you can't tell.
MR. CLARKE: Well, I'm asking you with regard to that sample, what is your opinion?
DR. GERDES: In that particular sample I don't know.
MR. CLARKE: All right. Thank you, your Honor.
THE COURT: Are we done with 262?
MR. CLARKE: Yes.
(Brief pause.)
MR. CLARKE: May I inquire what time the Court was going to take a break?
THE COURT: 10:30.
MR. CLARKE: Very well.
MR. CLARKE: Your Honor, I have one more board I would ask be marked as People's 561--
THE COURT: 571.
MR. CLARKE: 571.
(Peo's 571 for id = posterboard)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, for the record this board could be described as a board labeled "Concordance of Cellmark results with DOJ results."
THE COURT: Yes.
MR. CLARKE: Dr. Gerdes, with respect to, and let's start with the first item, 13A-1, is it correct, and we have discussed this to some extent a few moments ago, that the RFLP results obtained by each laboratory were consistent with one another, correct?
DR. GERDES: Correct.
MR. CLARKE: And that is with the fact that as to that sample there were a number of RFLP probes that matched Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: Is that an example of, as you have used the term, significant match?
DR. GERDES: Yes.
MR. CLARKE: There were also PCR results that you described a few moments ago that were also consistent with Nicole Brown from each laboratory, correct?
DR. GERDES: On that item, yes.
MR. CLARKE: And in fact Cellmark's DQ-Alpha and polymarker results were consistent with the Department of Justice's DQ-Alpha and D1S80 results, correct?
DR. GERDES: Correct.
MR. CLARKE: Would this be an example where different laboratories achieve the same results from the same sample?
DR. GERDES: Yes.
MR. CLARKE: Turning to the steering wheel, that particular item was typed by Cellmark at six genetic markers and by DOJ at one of the same markers, DQ-Alpha, correct?
DR. GERDES: Correct.
MR. CLARKE: Those results were consistent with one another, weren't they?
DR. GERDES: Yes.
MR. CLARKE: Turning to item 47 on the Bundy walkway, Cellmark's six genetic marker results were consistent with DOJ's two genetic marker results, one of which was typed by both laboratories, one marker?
DR. GERDES: Yes.
MR. CLARKE: Turning to item no. 48 from the Bundy walkway, is it correct that the six genetic markers typed by Cellmark were consistent with the two genetic markers typed by the Department of Justice, again one of which was the same DQ-Alpha marker?
DR. GERDES: Yes.
MR. CLARKE: In these instances, 47, 48, in fact two laboratories tested material from the same sample using the same genetic marker, didn't they?
DR. GERDES: Yes.
MR. CLARKE: Doesn't that constitute a cross-check of the accuracy of typing results by a laboratory?
DR. GERDES: Typing that item, yes.
MR. CLARKE: Turning to item 50, again six genetic markers were typed at Cellmark and two genetic markers at DOJ, one of which was the same DQ-Alpha marker?
DR. GERDES: Yes.
MR. CLARKE: And in this series, item 52 produced RFLP results obtained by Cellmark, correct?
DR. GERDES: Yes.
MR. CLARKE: And six additional genetic markers following PCR at Cellmark?
DR. GERDES: Yes.
MR. CLARKE: And then again two PCR-based markers were typed at the Department of Justice obtaining results the same as at Cellmark, correct?
DR. GERDES: For that DNA, yes.
MR. CLARKE: And then lastly, turning to item no. 84, and that was a series of three different samples from fingernail clippings and scrapings, correct?
DR. GERDES: Correct.
MR. CLARKE: Actually had three different numbers because there were three different items?
DR. GERDES: Uh-huh.
MR. CLARKE: With regard to that sample, Cellmark typed them at six genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Consistent with Nicole Simpson?
DR. GERDES: Yes.
MR. CLARKE: Nicole Brown Simpson?
DR. GERDES: Yes.
MR. CLARKE: And DOJ typed those samples at one genetic marker, correct?
DR. GERDES: Correct.
MR. CLARKE: As far as the results from those two different laboratories, they are in fact consistent with one another in terms of the fact that Nicole Brown could not be excluded as the donor of that DNA, correct?
DR. GERDES: That's correct.
MR. CLARKE: Isn't this inter-laboratory comparison, in fact, when one looks at the number of samples, a cross-check of the accuracy of results?
DR. GERDES: It is a cross-check of the items that were extracted by those labs, yes.
MR. CLARKE: All right. Your Honor, I was going to change into another area that was going to take--actually be my final area, but it will take longer than five minutes.
THE COURT: Well, let's use the five minutes we have.
MR. CLARKE: Very well.
(Brief pause.)
MR. CLARKE: Dr. Gerdes, this case doesn't involve testing of one or two evidence items, such as one or two bloodstains on a sidewalk, does it?
DR. GERDES: That's true.
MR. CLARKE: In fact, in this case there are more than forty different evidence samples that produced DNA typing results; isn't that correct?
DR. GERDES: That sounds about right.
MR. CLARKE: Isn't it correct that with respect to the negative controls in this case, unstained substrate controls, that is one negative control, correct?
DR. GERDES: Correct.
MR. CLARKE: A reagent blank, is that another negative control for PCR typing?
DR. GERDES: Correct.
MR. CLARKE: There is also a negative amplification control, as we discussed last Friday or Thursday?
DR. GERDES: Correct.
MR. CLARKE: Isn't it correct that all of those controls, the substrate controls, the reagent blank, the negative amplification controls in this case show no evidence of contamination?
DR. GERDES: There is one item from Cellmark that is a reagent blank that shows some evidence of contamination. With that one exception all the rest appear clean.
MR. CLARKE: How many different runs did these approximately forty or more than forty evidence items include in this case? I'm referring to PCR results?
DR. GERDES: Well, I haven't counted them.
MR. CLARKE: Well, would samples be run more than once?
DR. GERDES: Yes.
MR. CLARKE: How many times--
DR. GERDES: Some samples; other samples not.
MR. CLARKE: So samples would be run one time?
DR. GERDES: Yes.
MR. CLARKE: What is the most another sample--I'm referring to evidence material. What is the most times another sample would be run?
MR. SCHECK: Your Honor, I think this is vague and repetitive.
THE COURT: Sustained. It is vague.
MR. CLARKE: In terms of the use of the term "Run," how do you use that term?
DR. GERDES: Well, in terms of the table that I formulated, it basically just refers to a specific date on which a series of strips were tested.
MR. CLARKE: Okay. Were the same types of steps undertaken with regard to the evidence in this case?
DR. GERDES: Yes.
MR. CLARKE: So can we use the word "Run" to describe this different date that a sample might be typed in this case?
DR. GERDES: That is--yes.
MR. CLARKE: That would include amplification through actually determining which dots or which types are present?
DR. GERDES: Yes.
MR. CLARKE: With regard to these more than or approximately forty evidence items, how many different runs would those include in--you described that one sample might be run only once. How many times might another sample be run?
DR. GERDES: I would have to look at a specific item and count these things. I haven't done that.
MR. CLARKE: Okay. Is it correct that a sample might be run more than once?
DR. GERDES: Some samples were, yes.
MR. CLARKE: So is it the case that in this case there are more than forty different runs?
DR. GERDES: Again I would have to count them up. I haven't done that.
MR. CLARKE: Many of these samples were run by three different laboratories, correct?
MR. SCHECK: Your Honor, this is asked and answered.
THE COURT: We have already gone through that.
MR. CLARKE: As far as the number of runs, wouldn't it be much more than forty?
MR. SCHECK: Same objection.
THE COURT: Overruled.
DR. GERDES: If you count the runs in all the different laboratories, again, I--it is perhaps that many; perhaps not. I haven't counted them up, but there were a number of them.
MR. CLARKE: Could it be as many as eighty to a hundred different runs?
DR. GERDES: I doubt that.
MR. CLARKE: If you had to place an estimate on it, what estimate would you place?
DR. GERDES: Let me take a quick look here.
(Brief pause.)
THE COURT: All right. Mr. Clarke, Dr. Gerdes, why don't we take our break at this point. You can take a look and see what your records say. I don't want to rush you while you are on the stand here. Ladies and gentlemen, we are going to take our mid-morning break. Please remember all my admonitions to you. We will stand in recess for fifteen minutes. All right.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All parties are again present. Deputy Magnera, let's have the jurors, please. Dr. Gerdes, why don't you come on around and take your seat.
(Brief pause.)
THE COURT: I take it, Mr. Clarke, you just have a few more questions?
MR. CLARKE: I think about fifteen minutes' worth.
MR. SCHECK: Your Honor, after that, when I again redirect, I have some charts, so we may need a short break to show those.
THE COURT: Okay.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Dr. John Gerdes is on the witness stand undergoing cross-examination by Mr. Clarke. And Mr. Clarke, you may conclude.
MR. CLARKE: Thank you, your Honor.
THE COURT: You are welcome.
MR. CLARKE: May I have a moment with counsel?
(Discussion held off the record between Defense counsel.)
MR. SCHECK: May we approach, your Honor?
THE COURT: What is this?
MR. SCHECK: This is about the transcripts.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. What have you got, Mr. Clarke?
MR. CLARKE: There was--the Court may recall that the Court had left the subject to a motion to strike the witness' testimony about previously testifying about RFLP concerning PCR--confirming PCR results. This is the page from this line. They don't seem to be numbered, but what would be the fifth line down through--through this line here, (Indicating).
MR. SCHECK: First of all, we have something different on the same page--this is McIntosh, right?
MR. CLARKE: Correct.
MR. SCHECK: Our page 201 (Sic) For McIntosh is a little different. And there is two points here. First he testifies regarding the technology in the broad sense. "Do you recall ever testifying about the best validation technology is to use traditional RFLP technology to cross-check?" And they talk about cross-checking, but the specific kind of questions that Mr. Clarke is asking about the samples is that it goes on--
MR. THOMPSON: End of the direct.
MR. SCHECK: End of the direct examination at page 1970. What becomes clear is that when he is asked about separate and independent testing of the samples, even is asked a question on page 1970 of the transcript: "Finally you have taken the position that there is an indication or a suggestion that particular testing in this case that contamination was involved? "Yes. "The fact that the lab went to a secondary reference, that is a separate sample, and did testing, is that really the same as a repeat or independent test? "Answer: No. An independent test would have been that they sent the specimens to a different laboratory and ideal specimens that hadn't been handled. These had already been handled." So Dr. Gerdes' position in the McIntosh case is consistent with this one and that is that independent testing in a split of samples means that the samples haven't been handled by the laboratory, so to the extent that he was impeaching him with prior testimony from McIntosh in that regard in terms of validation, that was unfair. And in terms of just asking him in a general sense, as indicated on page 2018: "Doesn't RFLP in the general sense serve as a check against PCR?" In the general sense. I think he has indicated his position on that is yes, but in terms of--
THE COURT: But the only--
MR. SCHECK: --unfair impeachment on the other point concerning independent testing, and in other words, the samples handled in the lab--
THE COURT: I thought the only issue we have at this point is whether or not he has testified to this position within the last year. That is the issue.
MR. CLARKE: Exactly.
MR. SCHECK: I think what is clear here is that his position has been consistent and I think that that impeachment suggesting that he testified previously in the sense of independent laboratories confirming each other, in a situation whether the samples had already been handled by laboratory no. 1, that a second laboratory test would independently confirm the other one. That is not what he meant by independent confirmation. And in that respect page 1970 of the Moffitt (Sic) case indicates that Dr. Gerdes was unfairly impeached on that point, and Mr. Clarke did not have a particular page that he was confirming and that was my objection at the time and I think that the actual transcript bears it out.
MR. CLARKE: We are talking apples and oranges at the moment. My only question relates exactly to what is stated here about RFLP using to confirm PCR results. Fortunately we got the original transcript, not a rough draft unedited.
MR. THOMPSON: This is the one you provided is.
MR. CLARKE: That may be. I mean, I had to go back. I can't find this section of transcript. From the transcript it states now: "Regarding technological confirmation could RFLP be used then to confirm PCR results? "Answer: Yes."
THE COURT: He has already said that.
MR. CLARKE: Exactly. I was just concerned because you had made it subject to a motion to strike until I got the transcript.
MR. SCHECK: My point is that the motion to strike was--was involved in the issue, which is a critical issue in this case, and that is, you spent an hour talking about concordance and confirmation and everything when the fact of the matter is the man's position is completely consistent. He says a cross-contamination at LAPD on samples that have been handled there. It is not an independent cross-check unless the samples are split at the beginning. And you tried to impeach him on that point and that is--suggested that when he said independent testing in the Moffitt case--McIntosh case, I'm sorry, that it involved a situation where the samples had--that he did not make the distinction about handling--that if the laboratory no. 1 handles the sample and then you give to it laboratory no. 2, that that is not an independent cross-check and that was an incorrect and unfair impeachment--
THE COURT: No.
MR. SCHECK: --because the transcript doesn't bear you out.
THE COURT: The only thing that is at issue at there is whether or not he had maintained that position three years ago or within the last year. That was the issue that I took subject to a motion to strike. So if this is in July of `84--
MR. CLARKE: `94.
THE COURT: --there is a sufficient foundation on the record. The objection is overruled.
MR. SCHECK: Excuse me, your Honor.
THE COURT: The objection is overruled.
(The following proceedings were held in open court:)
THE COURT: Proceed.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Gerdes, with regard to the LAPD's DNA testing in this case, you have described previously that Mr. Yamauchi conducted PCR typing in this case on June 14th and June 15th, correct?
DR. GERDES: Correct.
MR. CLARKE: And in that testing he used the controls that you previously described as a result of my asking questions about reagent blanks and so forth, correct?
DR. GERDES: Correct.
MR. CLARKE: Now, your Honor, I have another document--one more document I would ask to be marked as People's I believe 572 which I have previously shown to counsel.
(Peo's 572 for id = slide)
MR. CLARKE: And with the Court's permission I will display it on the elmo.
THE COURT: Proceed.
MR. CLARKE: Dr. Gerdes, can you see that?
DR. GERDES: I would like to step down if I can.
MR. CLARKE: That's fine.
DR. GERDES: (Witness complies.)
MR. CLARKE: First of all, this particular document or slide, as it is now on the screen, have you had a chance to see that or take a look at it last week?
DR. GERDES: I saw it briefly, yes.
MR. CLARKE: And did you have an opportunity to calculate the total number of evidence samples, known standards and controls, that Mr. Yamauchi used in his testing in this case?
DR. GERDES: Yes.
MR. CLARKE: Now, with regard to--and there were two different dates for this testing; is that right?
DR. GERDES: That's correct.
MR. CLARKE: And on both June 14th and June 15th Mr. Yamauchi typed evidence samples?
DR. GERDES: Yes.
MR. CLARKE: He also typed known standards from the three people in this case?
DR. GERDES: Yes.
MR. CLARKE: And he also utilized a series of controls; is that right?
DR. GERDES: Yes.
MR. CLARKE: As far as the known standards, do you call those a control or not?
DR. GERDES: They are in the sense that they are defined as coming from a single individual, and if you can find evidence of human DNA, additional human DNA, that is evidence of contamination.
MR. CLARKE: So in a sense the known standards can act as a control, correct?
DR. GERDES: Correct.
MR. CLARKE: So that if a person was A, let's say a DQ-Alpha 1.1, 1.2, and you saw a 3 and a 4 showing up in addition to the 1.1 and 1.2, that is again another opportunity for contamination to signal itself at least in that sample?
DR. GERDES: That's correct.
MR. CLARKE: Now, as far as the total number of samples typed by Mr. Yamauchi, is it correct that including both June 14th and June 15th he typed a total of 42 different samples?
DR. GERDES: That's correct.
MR. CLARKE: That consisted of eighteen evidence samples, whether it is a stain from the sidewalk at Bundy or a sample from the Bronco, correct?
DR. GERDES: Correct.
MR. CLARKE: Or other samples that he typed as well?
DR. GERDES: Correct.
MR. CLARKE: He also typed the three known standards from the three individuals in this case; Mr. Simpson, Miss Brown and Mr. Goldman?
DR. GERDES: That's correct.
MR. CLARKE: The total number of evidence and known standards was 21; is that right?
DR. GERDES: Yes.
MR. CLARKE: And is it also correct that the total number of controls used in this case by Mr. Yamauchi on June 14th and 15th was 21?
DR. GERDES: Yes.
MR. CLARKE: Is it then correct that of the 42 samples typed by Mr. Yamauchi in this case on June 14th and June 15th, half of them, that is fifty percent, were controls?
DR. GERDES: On this specific case, yes.
MR. CLARKE: In your view is that an adequate number of controls for typing?
DR. GERDES: It should be.
MR. CLARKE: And in fact it is, isn't it?
DR. GERDES: Yes.
MR. CLARKE: All right. Thank you. Now, Dr. Gerdes, you have, last Wednesday and Thursday, repeatedly used terms like my interpretation, possibility and risk. Do you recall using those words?
DR. GERDES: Yes.
MR. CLARKE: And that was in reference to your testimony about the dangers of contamination in this case, correct?
DR. GERDES: Yes.
MR. CLARKE: You can't quantify that risk, can you?
DR. GERDES: Umm--
MR. CLARKE: That is, put a number on the risk?
DR. GERDES: Well, if there were adequate blind proficiency studies at least you could have some idea about error rate, which would give you some idea of risk, and the other thing that you can do is, as I have done here, you can look at all of the testing around the time frame of the testing done on an instance case and see how many times errors were made and how many times there was evidence of contamination so they are--those are objective ways of measuring the amount of risk. But as to coming up with a number that is a specific number that is going to say eighty percent of the time you will make a mistake or something like that, no, you can't quantify it.
MR. CLARKE: And in fact you testified about what you believe to be errors in the laboratory and we went through each of the five, correct?
DR. GERDES: Yes, we did.
MR. CLARKE: Now, as far as your laboratory's work in diagnosis of diseases, you produce results that ultimately to go a doctor, correct?
DR. GERDES: Correct.
MR. CLARKE: And a doctor is required to notify that patient of risks no matter how unlikely they are to occur, correct?
DR. GERDES: Yes.
MR. CLARKE: Are you aware of the non-bloodstain evidence in this case?
DR. GERDES: You mean fibers, hair, et cetera?
MR. CLARKE: All the other evidence in this case?
MR. SCHECK: Objection.
DR. GERDES: Peripherally?
MR. SCHECK: Outside the scope, irrelevant.
THE COURT: Overruled.
MR. CLARKE: When you say "Peripherally," doctor, what do you mean?
DR. GERDES: Well, I certainly did not review specific documents as to those things outside of my field, but I am aware of them because of media coverage and just like anybody else would be.
MR. CLARKE: So watching TV, that would be one source?
DR. GERDES: Yes.
MR. CLARKE: Reading the newspaper?
DR. GERDES: Yes.
MR. CLARKE: Reading magazines, if you do?
DR. GERDES: Yes.
MR. CLARKE: You have also testified that it is ultimately for the jury to decide the reliability of the scientific evidence in this case. Do you recall saying that?
DR. GERDES: Yes.
MR. CLARKE: Is it also correct that it is ultimately for the jury to decide whether in fact any contamination occurred in this case?
DR. GERDES: That is up to their discretion, yes.
MR. CLARKE: All you have told this jury is that there might be contamination in this case, correct?
DR. GERDES: I believe I have documented as precisely as I can the level of contamination that exists, and from that point on I have suggested how that may have or tried to explain how that would have an impact on the case. From that point on it is up to the jury to deal with that--that piece of evidence and in the context of the whole case.
MR. CLARKE: And you have talked about, Dr. Gerdes, possibilities, not what actually happened, correct?
MR. SCHECK: Objection, calls for conclusions.
THE COURT: Sustained. It is argumentative.
MR. CLARKE: You have spoken, you have described what you had believed to be possibilities in this case; is that right?
MR. SCHECK: Argumentative.
THE COURT: Overruled.
DR. GERDES: I have, as objectively as possible, evaluated the level of contamination at LAPD, the errors that I felt were a result of that, the evidence of cross-contamination in the reference samples and the implications of that in terms of the evidence in this case. That is what I have attempted to explain.
MR. CLARKE: You have spoken about what could happen; not what did happen, correct?
DR. GERDES: I don't have a hundred percent assurance that this did happen. I have no scientific confidence that it couldn't have happened.
MR. CLARKE: Dr. Gerdes, the results in this case from three different laboratories are consistent with the Defendant's blood being left at the crime scene, aren't they?
DR. GERDES: The results from the three labs as far as reported results, yes.
MR. CLARKE: They are consistent with mixtures of DNA from the Defendant, Ronald Goldman and Nicole Brown being found in the Ford Bronco; isn't that correct?
DR. GERDES: The results are consistent with that as they are detected.
MR. CLARKE: Incidentally, you haven't suggested to this jury that the Defendant's reference sample cross-contaminated the evidence taken from the Bronco, have you?
DR. GERDES: The fact that I have some indications of cross-contamination in those reference samples obviously increases again the risk that it could cross-contaminate something else.
MR. CLARKE: Dr. Gerdes, what I'm asking you is you haven't suggested to this jury that the Defendant's reference sample cross-contaminated any evidence in the Bronco, have you?
DR. GERDES: His particular sample?
MR. CLARKE: Correct.
DR. GERDES: It is hard to tell. I mean, I have no evidence--specific evidence, hard evidence of that.
MR. CLARKE: You don't have any evidence of it whatsoever, do you?
DR. GERDES: I have some--some evidence that the reference samples themselves may have cross-contaminated. At that point everything becomes suspicious.
MR. CLARKE: Dr. Gerdes, what I'm asking you is you don't have any evidence whatsoever that the Defendant's reference sample cross-contaminated any of the stains from the Bronco?
DR. GERDES: I don't have any direct evidence of that, no.
MR. CLARKE: Where in the history of these samples did the Defendant's reference sample come into even potential contact with the Bronco evidence samples?
DR. GERDES: There are other items that were collected at that residence who arguably may have come from the Defendant and it may not have been the reference sample, but it may have been some of those items.
MR. CLARKE: Dr. Gerdes, what I'm asking you is with regard to the Defendant's reference sample, when did it come into any potential contact with the Bronco evidence stains?
DR. GERDES: It didn't.
MR. CLARKE: The results in this case, Dr. Gerdes, are consistent with the Defendant's blood leading up to and inside his home on Rockingham; isn't that correct?
DR. GERDES: There is--the type results appear that way, yes.
MR. CLARKE: Those results are consistent with Nicole Brown and Ronald Goldman's blood being found on the glove at Rockingham, correct?
DR. GERDES: Again, there are multiple explanations. That is one explanation.
MR. CLARKE: Dr. Gerdes, didn't you concede last week that the RFLP matches to the two victims on the glove were correct?
DR. GERDES: Yes.
MR. CLARKE: Dr. Gerdes, isn't it true that the DNA type results from the laboratories in this case are consistent with Nicole Brown's and Mr. Simpson's blood being on the sock found at the residence?
MR. SCHECK: Your Honor, this is asked and answered five times.
THE COURT: Overruled.
DR. GERDES: Yes, that is true.
MR. CLARKE: And in fact you have conceded that much during your testimony, correct?
DR. GERDES: I have.
MR. CLARKE: Now, five probes is significant, correct?
MR. SCHECK: Objection, asked and answered.
THE COURT: We have gone through this part.
MR. CLARKE: When you conduct your paternity testing you look at individual probes, correct?
DR. GERDES: Correct.
MR. CLARKE: You look at more than one probe because a father might be excluded as being the father of a particular child, correct?
MR. SCHECK: Objection, asked and answered.
THE COURT: Overruled.
DR. GERDES: Yes.
MR. CLARKE: And in fact you look at routinely five different genetic markers; is that right?
DR. GERDES: That's correct, for doing DNA only.
MR. CLARKE: Just counting DNA, right?
DR. GERDES: Yes.
MR. CLARKE: And you are looking at each of those markers, this is a potential father or this person who might be the father excluded as the father of that child, correct?
DR. GERDES: Correct.
MR. CLARKE: Once you look at those probes, you then estimate how rare is that match at one probe?
MR. SCHECK: Your Honor, objection.
THE COURT: Sustained. We have gone through this already.
MR. CLARKE: Dr. Gerdes, one of the concerns you have experienced in forensics is the fact that a sample may be small and you may not be able to retest it, correct?
DR. GERDES: Correct.
MR. CLARKE: Now, as far as errors--and you described how in medical diagnostics if a patient dies because of a misdiagnosis you know you have made a mistake; is that right?
DR. GERDES: That is a pretty drastic example, but yes.
MR. CLARKE: And you described the fact last week that in your view there is no independent way of assessing whether or not mistakes are made in the forensic setting? Do you recall that?
DR. GERDES: I believe that is true.
MR. CLARKE: Are you aware of remaining evidence in this case that can be retested?
DR. GERDES: I'm not aware of any evidence that hasn't been handled by the LAPD that can be retested.
MR. CLARKE: Objection, move to strike, nonresponsive.
THE COURT: Overruled.
MR. CLARKE: Dr. Gerdes, are you aware of remaining evidence in this case that can be retested?
DR. GERDES: There are items that can be retested.
MR. CLARKE: There are a number of evidence items, aren't there?
DR. GERDES: Yes.
MR. CLARKE: And in fact there are remaining swatches from many of the very items that we've described that you have described during your testimony in this case?
DR. GERDES: There are.
MR. CLARKE: Whether it is the Bundy blood drops?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA removed from the Bronco?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA from the Defendant's home?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA on the glove?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA on the socks?
DR. GERDES: Correct.
MR. CLARKE: Have you tested any of that?
DR. GERDES: We don't do this type of testing.
MR. CLARKE: Well, as far as the difference between the testing, you do in your laboratory and forensic labs do, you have testified the only difference is the nature of the specimen, a bloodstain versus a blood vial, correct?
DR. GERDES: No. I believe I testified that it is comparing apples and oranges, that it is a completely different set-up and statistics involved in paternity from forensics, they really are not the same other than the fact that the methodology itself as far as how you run the gels is the same.
MR. CLARKE: Dr. Gerdes, if you exclude somebody statistics don't mean anything, do they?
DR. GERDES: That is true.
MR. CLARKE: In other words, if you test a sample and a genetic marker, someone is excluded as having left a sample at a crime scene, let's say, numbers don't mean a thing?
DR. GERDES: That's right.
MR. CLARKE: As far as in your laboratory, you have tested the DQ-Alpha marker before, correct?
DR. GERDES: Not in a forensic sense.
MR. CLARKE: Have you tested the DQ-Alpha marker before, doctor?
DR. GERDES: Yes.
MR. CLARKE: And in that testing did you feel competent to perform that testing of the DQ-Alpha marker?
DR. GERDES: Yes.
MR. CLARKE: As far as removing DNA from a bloodstain, do you feel that you could do that?
DR. GERDES: Yes, I could do that, but the--the difficulty is, as we have discussed over and over, whether that sample--you need to have confidence. The difference in the way I do things and the way forensics does that is I have confidence that a specimen I'm working with came from a single individual, and the complications in terms of statistics, interpretation, potential error, that is introduced by the fact that these are mixtures or potentially mixtures. That is the issue.
MR. CLARKE: Dr. Gerdes, if one of those samples from the Bundy blood trail, 47 through 52, if one of those was typed and it revealed a genetic marker, and I am referring to the remaining evidence, that excluded Mr. Simpson, wouldn't that be important?
DR. GERDES: Yes.
MR. CLARKE: That would be extremely important, wouldn't it?
DR. GERDES: Yes.
MR. CLARKE: Have you suggested to the Defense in this case that retesting should be done?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. SCHECK: Objection, move to strike and ask for an instruction--
THE COURT: Overruled.
MR. SCHECK: --on burdens of proof.
MR. CLARKE: Wouldn't reanalysis of these samples support, if they produced exclusionary results, support your opinions in this case?
MR. SCHECK: Objection.
THE COURT: Overruled.
DR. GERDES: Not at this point.
MR. CLARKE: Is it your view then that if further testing in this case revealed Mr. Simpson was excluded from item 52, that wouldn't support any of the opinions you've offered in this case about forensic DNA typing?
DR. GERDES: In my opinion, with the risk of contamination, there would be no possible PCR interpretation possible at this point, because the samples have been handled in the way they have been.
MR. CLARKE: Are you aware of other laboratories--
THE COURT: Keep going.
MR. CLARKE: Are you aware of other laboratories, doctor, that perform forensic retesting?
DR. GERDES: Yes.
MR. CLARKE: Does Dr. Blake--is he able to perform DQ-Alpha typing on forensic specimens?
DR. GERDES: Yes.
MR. CLARKE: Is Mr. Taylor able to perform retesting on forensic specimens?
DR. GERDES: Yes.
MR. CLARKE: Is Dr. Lee able to perform forensic testing on specimens using DNA typing?
DR. GERDES: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Could I have just a moment, your Honor? I'm sorry.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Thank you. Nothing further, your Honor.
MR. SCHECK: Your Honor, we have--
THE COURT: All right. Ladies and gentlemen, there are a couple of things I need to take up out of your presence, so I'm going to ask you to step back into the jury room. We will call you out in probably ten or fifteen minutes. All right. Dr. Gerdes, you may step down.
(At 11:11 A.M. the jury was excused and the following proceedings were held in open court:)
THE COURT: All right. The record should reflect all the jurors have withdrawn from the courtroom. Mr. Scheck.
MR. SCHECK: First, Mr. Cochran has an application.
MR. COCHRAN: I would like to just address the Court, your Honor, as to one issue. Your Honor, repeatedly we have seen questioning by the Prosecutors with regard to the Defense could do this, the Defense could do that, and I think that is grossly unfair to Mr. Simpson, because as the Court is aware, the Defendant doesn't have to prove anything. Just harken back to the voir dire. You have told this jury Mr. Simpson could go to sleep if he wanted to.
Obviously he hasn't done that in this case. But I think it is terribly unfair, under the provisions of the state constitution and the U.S. constitution to try to shift the burden to Mr. Simpson. He does not have to prove anything. And I think that whole line of questioning is unfair. I'm making this objection primarily because I think it applies not only to this witness, but to others, and what I'm asking the Court to do is to prohibit the Prosecution from doing this, and also at the appropriate time you will be instructing this jury, but to instruct them the Defense does not have to do any kind of testing in this particular case. And I think it is unfair, unfair inference. You mentioned Mr. Blake a hundred times and now we hear Blake and Taylor and what Gerdes does, could have done, and that is really unfair, your Honor, and I wanted to at least address the Court on this and ask you to give a curative instruction in that regard.
THE COURT: All right. That will be given and has been given as one of the Court's formal instructions. The burden is on the Prosecution. However, there is also a long line of cases that during the course of argument the Prosecution can argue the failure to call logical witnesses.
MR. COCHRAN: Doesn't it fly in the face--not to belabor it--doesn't it fly in the face where you start off instructing the jury we don't have to prove anything and then they come along and they do exactly that and then you instruct them that we don't have to prove anything.
THE COURT: I have instructed them in the most graphic way that I can that Mr. Simpson can sit here and sleep through the whole trial if he cares to. That is something you even remember.
MR. COCHRAN: You did that and I just reminded you.
THE COURT: I'm sure I don't need to be reminded of that and that is why I use it.
MR. COCHRAN: I appreciate that. And in addition to that, it seems to be an incongruity for them to continue to throw up this thing as though we have to prove anything because we don't have to, and I think that is grossly unfair and that is the point.
THE COURT: I will instruct the jury at the appropriate time that the burden is completely and 100 percent on the Prosecution, rest assured of that. All right. Mr. Scheck.
MR. SCHECK: Your Honor, we have some slides that I will hand up to the Court. I have--give to Prosecution--maybe--what is the best way you want to do this? Do you want to just take a look at them or put them up?
THE COURT: Just hand them to me.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: Do you have any extra copies?
MR. SCHECK: Yes, yes, I have them right here.
(Brief pause.)
MR. SCHECK: Perhaps if I just go through them it will be easier.
MR. CLARKE: I haven't seen them, your Honor.
(Brief pause.)
MR. SCHECK: Your Honor, these--these slides would be used in conjunction with--they address the four different examples of errors at LAPD, and if we could turn to--
THE COURT: These are the same four, or depending on how you call it, five mistakes that Mr. Clarke went through, correct?
MR. SCHECK: Right.
THE COURT: There is an illustration of the different calls, correct?
MR. SCHECK: Yes. This would be a breakout of the genotypes listed on Prosecution's exhibit no. 561, which are the strips, and what it indicates here is the correct type in the proficiency testing sample being 1.2, 1.3 for the sperm fraction and it is labeled with the sign for males, and the LAPD type is reported which was a 1.3, 4. And it indicates the female fraction and indicates that this was, as the testimony indicates, done first by Collin Yamauchi on 9/9/93 and then again Erin Riley did the same sample, got the same result on 9/21, `93. Next slide, please. This indicates--
THE COURT: All right. Counsel, I have all of these in front of me.
MR. SCHECK: Yes. The next thing indicates that--
THE COURT: All right. Rather than sit here and tell me what they are, what are your objections, Mr. Clarke?
MR. CLARKE: I think at least this slide is argumentative and misleading. As far as this witness' own testimony about--and the witness conceded that, yes, these people cannot be excluded, even persons with a different type, because of the potential for the spillover of female DNA and the male DNA. So just judging by in particular the portion of the slide that is in black on the right, this witness has conceded that, no, you wouldn't wrongfully include anyone, you wouldn't wrongfully exclude anyone because the analyst, a trained analyst, must necessarily consider that may be the victim's that is coming out in the sperm fraction.
THE COURT: All right.
MR. CLARKE: If the witness hadn't conceded that I think we would be in a different situation.
MR. SCHECK: That is not his testimony.
THE COURT: Wait, wait, wait. A-1, B-2 and C-3, these are all case work examples, correct?
MR. SCHECK: The--
THE COURT: Are these case work or validation studies?
MR. SCHECK: This--what this slide refers to--
THE COURT: I know the four or five mistakes. I know what we are talking about here.
MR. SCHECK: Right. This one is a mock validation study.
THE COURT: Okay.
MR. SCHECK: And the point that Dr. Gerdes made on direct, and we feel has to be cleared up, because it is very hard when you deal with these, you have to break out the types and show exactly what the points are, that the typing result of LAPD of the 1.2, 4 could be, if that--given the fact that the female fraction is a 1.2, 4, the number of different possible suspects in terms of genotypes that could be included by that result in a case would be called a 4, 4 a 1.2, 1.2 and that is why he considers this a mistake, and a serious mistake, and the kind of thing that he has seen in other forensic laboratories, and that is our point.
THE COURT: All right. Mr. Clarke, any other comment on all of these matters?
MR. CLARKE: Referring to this first slide?
THE COURT: Any of them.
MR. CLARKE: Actually, I haven't had a chance to look at the others. We have been dealing with this one.
THE COURT: Do you have them all printed in front of you?
MR. CLARKE: Yes.
THE COURT: They are all similar. There are two different batches here.
MR. CLARKE: If I could look at them.
THE COURT: All right. Mr. Scheck, my one concern is that 1-A, B-2 and C-3 do not--are not self-labeled and being as being validation studies.
MR. SCHECK: Well, what I will do is when we put this up, I will label them.
THE COURT: As the others do clearly say this is proficiency testing.
MR. SCHECK: I see. So we will--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: We will have Mr. Harris put it on the side and I will refer to the exhibits when I show the slides so it is clear what we are referring to.
MR. CLARKE: I also think as to the wrong suspects included, that is very argumentative and misleading.
THE COURT: It is inaccurate in terms of a mock--
MR. SCHECK: I will put down "Mock." It is not a real case. It didn't really happen. The point is it could happen if it were a real case and that is his testimony.
MR. CLARKE: Even in a mock case it is extremely misleading.
THE COURT: Here is the problem. We all agree they have gone through all four or five of these, on both sides. This is a graphic breakout of what is there. I think it is easier to understand in this form as long as it is correctly labeled what it is. This is my only problem.
MR. SCHECK: So we should put down--we will put down "Mock validation study" underneath the 9/9/93, rerun 9/21/93.
THE COURT: 1-A, B-2 and C-3.
MR. SCHECK: Yes.
THE COURT: All right. Anything else?
MR. CLARKE: Could I just have a moment to look at the remainder?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Mr. Clarke, any other comment?
MR. CLARKE: Your Honor, I just think they are extremely argumentative in the context of this witness' testimony. The way they are worded and the way I presented I think will do nothing but mislead the jury.
THE COURT: All right. The objection is noted. All right. Let's have the jury, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Dr. Gerdes. The record should reflect all the jurors have rejoined us. Dr. John Gerdes is on the witness stand again undergoing redirect examination by Mr. Scheck.
MR. SCHECK: Good afternoon (Sic), ladies and gentlemen of the jury.
THE JURY: Good afternoon.
REDIRECT EXAMINATION BY MR. SCHECK
MR. SCHECK: Dr. Gerdes, Mr. Clarke asked you quite a few questions about retyping by other laboratories?
DR. GERDES: Yes.
MR. SCHECK: Now, in terms of an initial cross-contamination of samples at the LAPD, does it matter how many other laboratories typed the samples if they were cross-contaminated initially at LAPD?
DR. GERDES: No. Once you've accidentally or some other way transferred that DNA from one sample to another, it doesn't matter how many gene systems, how many different labs, it is always going to transfer, it is always going to type as the DNA that was transferred.
MR. SCHECK: Now, Mr. Clarke showed you what has been marked 564-F which is a series of slides, if I could put this up on the elmo, please, with respect to typing performed at the LAPD laboratory with respect to three of the five Bundy blood drop samples. Will you put that up there, please. In terms of--
THE COURT: It is getting washed out here.
MR. SCHECK: Yeah.
THE COURT: There we go.
MR. SCHECK: Now, listed on this chart are only items 48, 50 and 52; is that correct?
DR. GERDES: Correct.
MR. SCHECK: In terms of what was handled by Collin Yamauchi between nine o'clock and 11:00 on the morning of June 14th, were samples 47, 48, 49, 50, 52 and the Rockingham glove all sampled at that time with Mr. Simpson's reference sample?
DR. GERDES: That's correct.
MR. SCHECK: All right. And where did that occur?
DR. GERDES: That occurred in the evidence processing room.
MR. SCHECK: All right. And in terms of the drying of samples, and packaging of samples, were items 47, 48, 49, 50 and 52, along with Rockingham items, including item no. 12, the drops taken from the foyer of Mr. Simpson's home, were they all taken out of plastic bags, wet swatches and put into test tubes by Mr. Fung and Miss Mazzola without changing gloves and without changing papers on June 13th as is indicated under the section "Drying" on 6/13?
MR. CLARKE: Objection, misstates the evidence.
THE COURT: Sustained.
MR. SCHECK: Well, based on your review of the testimony did Miss Mazzola and Mr. Fung take out of plastic bags swatches that they described were wet, put them into test tubes for drying on the evening of June 13th which included 47, 48, 49, 50 and 52, and the different samples collected at Rockingham?
DR. GERDES: They did.
MR. SCHECK: All right. And that would comport with the section of the chart marked "Drying," correct?
DR. GERDES: That's correct.
MR. SCHECK: And on June 14th in the morning did Mr. Fung and Miss Mazzola scrape out of test tubes using a pipette without changing gloves and without changing paper, put into bindles the swatches that they had previously dried on June 13th?
DR. GERDES: They did.
MR. SCHECK: Now, is it--what is your opinion about the way that Mr. Fung and Miss Mazzola handled those samples on June 13th and on June 14th in terms of the danger of cross-contamination?
DR. GERDES: I think there is significant risk of cross-contamination because they didn't change gloves because they create aerosols when they try and scrape these little swatches out of the tube, and because they handled the reference sample at the same time as all of these other evidence items and because certain items--
MR. CLARKE: Excuse me. Sorry. Objection, misstates the testimony.
THE COURT: Overruled.
DR. GERDES: And because certain items--a number of items, in fact, were mixed between crime scenes in terms of being handled at the same time.
MR. SCHECK: Incidentally, item no. 12, the drops from the floor in the foyer from Mr. Simpson's residence, was that among the last samples collected on June 13th?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: Do you know if those were among the last samples collected by Mr. Fung and Miss Mazzola on June 13th?
MR. CLARKE: Same objection.
THE COURT: Sustained. Sustained.
MR. SCHECK: All right.
THE COURT: Foundation, counsel.
MR. SCHECK: Are you familiar with the testimony and the records concerning the collection of the items at Rockingham?
DR. GERDES: Yes.
MR. SCHECK: All right. Was item no. 12 one of the last items collected on June 13th?
DR. GERDES: Yes.
MR. SCHECK: And in terms of DNA concentration, was the concentration of item no. 12, in terms of human DNA, higher significantly than the Bundy blood drops?
DR. GERDES: It was.
MR. SCHECK: All right. And when that sample is handled in conjunction with the Bundy blood drops, in the fashion that you have just reviewed on June 13th and on June 14th, does that create a danger of cross-contamination with that sample?
DR. GERDES: Yes, because you are handling a sample that has a large amount of DNA with samples that are degraded and small amounts of DNA.
MR. SCHECK: And the samples that had degraded and small amounts of DNA were which sample?
DR. GERDES: The Bundy blood drops.
MR. SCHECK: Now, also--well, could you--could we circle on this--the evidence processing room on this flow chart as indicated 6/13 and 6/14. Could we draw a circle around that, Mr. Harris, and may I suggest pink. No, no, no, that is the evidence--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: No, no. All right. Thank you.
MR. SCHECK: Dr. Gerdes, is it your testimony that it is in these procedures on June 13th and June 14th that unacceptable risks of cross-contamination occurred?
DR. GERDES: Yes. The risk at the very first step that is circled.
MR. SCHECK: And if those--cross-contamination to those samples, Bundy blood drops and the Rockingham glove, occurred at that time, would results be replicated by Cellmark, DOJ, your own laboratory, if you typed these kind of samples, Dr. Blake, Dr. Henry Lee or anyone else you found, assuming that they performed the tests correctly?
DR. GERDES: They would.
MR. SCHECK: Thank you. Can we print that out mark that as Defense next in order.
THE COURT: 1311.
(Deft's 1311 for id = photograph)
MR. SCHECK: With the Court's permission could we turn the lights up and I will go over to a chart.
(Brief pause.)
THE COURT: All right. This is 259, I believe the Bundy results board.
MR. SCHECK: And your Honor, at the same time I would like to put up on the elmo what has previously been marked as Defendant's 1165. These are the charts of the amounts of nanograms of DNA.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Dr. Gerdes, starting with what is marked as 47--
DR. GERDES: Yes.
MR. SCHECK: --was that one of the Bundy blood drops that was handled by Dennis Fung and Andrea Mazzola on June 13th?
DR. GERDES: Yes.
MR. SCHECK: Was it one of the items that Mr. Yamauchi handled at the same period that he was handling Mr. Simpson's reference sample?
DR. GERDES: Yes.
MR. CLARKE: Objection, no foundation.
THE COURT: Overruled.
MR. SCHECK: This is when Mr. Yamauchi took out the stopper and the blood went through the chem wipe onto his glove?
DR. GERDES: That's correct.
MR. SCHECK: 48 the same?
DR. GERDES: Correct.
MR. SCHECK: 49 the same?
DR. GERDES: Yes.
MR. SCHECK: 50 the same?
DR. GERDES: Yes.
MR. SCHECK: 52 the same?
DR. GERDES: Yes.
MR. SCHECK: Now, 52, in terms of which of the Bundy blood drops swatches were opened up from the bindles, when Mr. Yamauchi began handling them on the morning of June 14th, which of the items did he handle first?
DR. GERDES: No. 52.
MR. SCHECK: Are you familiar with the estimate of the amount of human DNA in each of the Bundy blood drops, 47 through 52, as testified to by Gary Sims based on his calculation has from slot-blots, yield gels and the size of the swatches and their weight?
DR. GERDES: Yes, I am.
MR. SCHECK: All right. Do you regard those as accurate estimates as to the total number of nanograms of human DNA in those items?
DR. GERDES: Yes, they are consistent with his notes.
MR. SCHECK: All right. On--and in terms of the yield gels, is it a fair statement that 47, 48, 49, 50 and 52 were samples that were severely degraded in terms of bacterial DNA.
MR. CLARKE: Objection, vague.
THE COURT: Sustained.
MR. SCHECK: What was the status of those samples in terms of bacterial degradation?
DR. GERDES: They were all extremely degraded.
MR. SCHECK: Now, with respect to 52, is this the RFLP result that you are concerned about?
DR. GERDES: Yes.
MR. SCHECK: How many nanograms of human DNA did Robin Cotton testify went into that particular result?
DR. GERDES: She testified there was 25 nanograms.
MR. SCHECK: Is that different than all of the other RFLP results?
DR. GERDES: All the other RFLP results have more DNA, adequate DNA.
MR. SCHECK: At least four times more?
DR. GERDES: That's correct, at least four times more DNA.
MR. SCHECK: Were any other of the samples from which RFLP results obtained, were those handled in the presence of the reference sample and in the period where the reference sample was handled?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: Is it your testimony, sir, that there were unacceptable risks of cross-contamination that are associated with the results on 47, 48, 49, 50 and 52?
DR. GERDES: Yes.
MR. CLARKE: Excuse me. Objection, leading.
THE COURT: I will let it stand, but it was.
MR. SCHECK: Now, there are frequency estimates on the right side of this chart for all those items?
DR. GERDES: Yes, there are.
MR. SCHECK: Could you distinguish for us between frequencies and error rates?
DR. GERDES: Yes. I mean--these are an estimate of at what percentage of the population or what incidents in the population you might find all of these genetic markers. Error rate has to do with an evaluation of the laboratory itself and the question of how good are they in terms of how often they might make a mistake. And so on the one hand you are talking about how many--if you do a hundred samples, how often would you make an error?
MR. SCHECK: In terms of--I'm sorry.
DR. GERDES: On the other hand, you are talking about assuming there were no errors, how often would you find this in the population?
MR. SCHECK: Do you agree with the recommendation of the national research council that laboratory error rate ought to be measured by the use of external blind proficiency tests on samples that replicate case work?
DR. GERDES: I do.
MR. CLARKE: Objection, hearsay, no foundation.
THE COURT: Overruled.
DR. GERDES: I do.
MR. SCHECK: Does the LAPD have such a program?
DR. GERDES: No, they don't.
MR. SCHECK: In terms of their open proficiency tests, in your judgment do those proficiency tests replicate case work?
DR. GERDES: No, they don't include mixtures or degraded DNA samples, DNA's of low concentrations.
MR. SCHECK: In terms of the study that you performed looking at all the strips and runs at the LAPD laboratory, do you have a judgment as to how that--how personnel at that laboratory handle samples?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: From your study, is there an objective basis for making an assessment as to the risk of error until handling samples at the LAPD?
MR. CLARKE: Same objection.
THE COURT: Sustained. It is vague and overbroad. You need to pare it down a little.
MR. SCHECK: In your study of contamination at the Los Angeles Police Department, in terms of their runs and strips, did you make an assessment of extraction controls versus amplification controls?
DR. GERDES: I did.
MR. SCHECK: And what was the significance of that?
DR. GERDES: The--
MR. CLARKE: Objection, vague.
THE COURT: Overruled.
DR. GERDES: The significance is that the contamination was found predominantly in the reagent extraction controls.
MR. SCHECK: And what does that indicate about this phase of the DNA process where errors were correct?
DR. GERDES: It indicates that in handling samples in the early stages, the extraction stages in both of those areas, that is where the contamination is being introduced in terms of what we can objectively look at, which is their record on doing known samples over the course of that time period.
MR. SCHECK: And does that include the evidence processing room as one of those stages that the extraction control would cover?
DR. GERDES: I believe it would.
MR. SCHECK: Now, turning to the results from 117, the rear gate, are you aware, from your review of the testimony, as to the amount of DNA on that sample?
DR. GERDES: Yes. There is 150 nanograms.
MR. SCHECK: In your judgment is that significantly different than the amount of DNA on the other Bundy blood drops?
DR. GERDES: Yes, it is.
MR. SCHECK: Do you know when that sample was collected?
DR. GERDES: Yes.
MR. SCHECK: When?
DR. GERDES: I don't know the exact date, but I believe it was collected in August.
MR. SCHECK: July 3rd?
DR. GERDES: July--July. Later after--a month or so after the samples.
MR. SCHECK: The Bundy blood--and in terms of bacterial degradation, do you agree with the assessment of Gary Sims that 117 did not show evidence on yield gels of bacterial degradation?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: Are you aware of Mr. Sims testimony and assessment as to the level of bacterial degradation on item 117?
DR. GERDES: Yes.
MR. SCHECK: Do you agree with that?
DR. GERDES: Yes.
MR. SCHECK: Were those samples degraded?
DR. GERDES: No.
MR. SCHECK: Dr. Gerdes, does it make any sense to you, based on your knowledge of DNA quantitation, that samples collected on June 13th from the same area, that is 47, 48, 49, 50 and 52, would be so degraded in terms of bacterial contamination--bacteria, 117 would show no evidence of that?
MR. CLARKE: Objection, no foundation, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: All right. Does this data, in terms of the dates of collection and the conditions where those samples were collected, make sense to you scientifically?
MR. CLARKE: Same objection.
THE COURT: Sustained.
MR. SCHECK: What is your assessment of the--can you explain the difference in DNA amounts and degradation on 117 versus 47 through 52?
MR. CLARKE: Same objection.
THE COURT: Sustained.
MR. SCHECK: Are you aware of the testimony that the same methods of collection were employed by Dennis Fung in terms of putting the swatches from 117 into a plastic bag, taking them to the laboratory and drying them in test tubes and sampling the next day as was followed with 47?
DR. GERDES: 48, 49, 50 and 52.
MR. CLARKE: Objection, misstates the evidence.
THE COURT: Overruled.
DR. GERDES: Yes, I am aware of that.
MR. SCHECK: All right. Given that the same procedures were followed and given that all these items were in the locations where they were recovered, does it make any sense to you scientifically that there should be no evidence of degradation in 117 and so much evidence of degradation in 47 through 52?
MR. CLARKE: Objection, no foundation, calls for speculation.
THE COURT: Sustained.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Have you looked at photographs of the scene where these different items were collected?
DR. GERDES: Yes, I have seen photographs.
MR. SCHECK: All right. So you are familiar with where they are collected?
DR. GERDES: Yes.
MR. SCHECK: In terms of their locations, in terms of the methods of--same methods of collection and in terms of the results with respect to bacterial degradation and yield of human DNA, did these results--what is your assessment of these results?
MR. CLARKE: Same objection, same grounds.
THE COURT: Sustained.
MR. SCHECK: These are foundation?
THE COURT: Foundation, counsel. It is a forensic setting.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Well--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: All right. Dr. Gerdes--Dr. Gerdes, do you have a background in microbiology?
DR. GERDES: Yes, I do.
MR. SCHECK: Does microbiology involve an assessment of the effects of bacteria on DNA?
DR. GERDES: Yes, it could.
MR. SCHECK: Is that what you got your Ph.D. in?
DR. GERDES: Yes.
MR. SCHECK: Is that--have you relied on your microbiology background in terms of your postdoctorate work and your work as a DNA lab director?
DR. GERDES: Yes.
MR. SCHECK: Do those principles, basic scientific principles of microbiology and molecular genetics that you have been trained in, do those have application to an assessment of bloodstains, bacteria and substrates?
DR. GERDES: Yes.
MR. SCHECK: Have you read the literature from forensic laboratories that you've called demonstration papers that deal with degradation of samples taken from crime scenes?
DR. GERDES: Yes.
MR. SCHECK: Based on all of that, what is your assessment in terms of the data that the Bundy blood drops were severely degraded with bacteria and the rear gate sample 117 was not and the rear gate sample had 150 nanograms of DNA which was five times higher than any Bundy blood drop sample?
MR. CLARKE: Same objection, same grounds.
THE COURT: Overruled.
DR. GERDES: It doesn't seem to make sense to me that you should see about the same level of degradation and in fact on 117, which is an older sample, should have more degradation.
MR. SCHECK: Thank you.
(Brief pause.)
MR. SCHECK: Dr. Gerdes, I show you what's been marked as Prosecution's 260 entitled "Results of DNA analysis on the Bronco automobile." Were the results of the steering wheel, no. 29, from the laboratories, a 1.2, 1.1, 4?
DR. GERDES: Yes, they were.
MR. SCHECK: And taken at face value would that indicate a mixture of some--could indicate a mixture of somebody with a 1.1, 1.2 and somebody that is a 4?
DR. GERDES: Yes.
MR. SCHECK: A 4, 4, I should say?
DR. GERDES: Yes.
MR. SCHECK: And somebody that is a 1.2, 4?
DR. GERDES: Yes.
MR. SCHECK: And somebody that is a 1.1, 4?
DR. GERDES: Yes.
MR. SCHECK: And that result does not match, on the face of it, Mr. Goldman, correct?
DR. GERDES: That's correct.
MR. SCHECK: He would be excluded from the steering wheel?
DR. GERDES: He would.
MR. SCHECK: Now, with respect to item no. 31 and item no. 30, were those the only results from the Bronco console that were removed on June 14th?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: In terms of the sample removed from the Bronco on June 14th, I believe on direct examination you indicated what about those?
DR. GERDES: Those are the samples that were removed on that date.
MR. SCHECK: All right. And that--
DR. GERDES: The low numbers indicate samples that are--that were collected on that early date. The high numbers, the hundreds, those are the later samples.
THE COURT: So 303, 304, 305 were removed on August 26th?
DR. GERDES: Correct.
MR. SCHECK: All right. Now, in terms of 30 and 31, Mr. Clarke on his cross-examination of you, do you recall just pulled out this board and asked you to read the results, correct?
DR. GERDES: That's correct.
MR. SCHECK: He didn't ask you whether you believed that the result on 31 was scientifically acceptable?
MR. CLARKE: Objection, irrelevant.
THE COURT: Overruled.
DR. GERDES: No, he didn't ask me.
MR. SCHECK: All right. Your Honor, I would like to show another board over this for a second.
(Brief pause.)
THE COURT: All right. Mr. Scheck, this is Defense exhibit--
MR. SCHECK: 1309.
THE COURT: Thank you.
MR. SCHECK: Entitled "Bronco console stains collected June 14th, 1994."
MR. SCHECK: Dr. Gerdes, in light of the 1.3 appearing on the quality assurance sample 8--quality control sample 816 and the positive control, the intensities of those dots, the call that was made by DOJ, do you believe that it is scientifically acceptable, and I ask you this question to a reasonable degree of scientific certainty that makes a call that there is a contributor with a 1.3, 4 in this sample?
DR. GERDES: Absolutely not. You can't tell if that is real or not because it is on the control. These stain signals--you can't arbitrarily say it is real here and it is not real down there, (Indicating), so you can't make that call.
MR. SCHECK: I would like to show 1310.
(Brief pause.)
MR. SCHECK: 1310 is entitled "Bundy blood drops LAPD item no. 13"?
DR. GERDES: Yes.
MR. SCHECK: "DOJ typing"?
DR. GERDES: Yes.
MR. SCHECK: Do you see an inconsistency in the call with respect to the 1.3 on LAPD item 52 and the call on the 1.3 on sample 31?
MR. CLARKE: Objection, leading, also argumentative.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: What is your view of the call that was made on item 52 with respect to the 1.3 allele and the call that was made to item 31?
MR. CLARKE: Objection, no foundation.
THE COURT: Overruled.
DR. GERDES: This just shows the subjectivity of this. In this case the 1.3 is not--is ignored in this particular time. On the other time it is counted and on the controls it is counted, so there is no scientific basis as to how you would determine one of these as real and one as not real, other than--I don't know how you would decide.
MR. SCHECK: Dr. Gerdes, if we were to assume that the 1.3 is real on item no. 52, ask you to keep that assumption in mind, first question is out of all the different systems used, is the DQ-Alpha system the most sensitive?
DR. GERDES: Yes, it is.
MR. SCHECK: So if--I ask you to assume that DNA on the Bundy blood drops 47, 48, 49, 50 and 52 is degrading because of bacteria.
DR. GERDES: Yes.
MR. SCHECK: And that 52--on sample 52, consistent with that 1.3 because the DQ-Alpha is the most sensitive system. If you assume that to be real--
DR. GERDES: Yes.
MR. SCHECK: --DNA from another contributor--
MR. CLARKE: Objection, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Well, let us assume that DNA on item no. 53 underwent--52--underwent a process of bacterial degradation. Do you have that in mind?
DR. GERDES: I have it.
MR. SCHECK: Let us further assume that there was contamination with Mr. Simpson's reference sample on June 14th at the LAPD laboratory. Do you have that in mind?
DR. GERDES: Yes.
MR. SCHECK: All right. In theory, if that 1.3 is real, could that represent the contribution of the original source on sample 152 which had degraded?
MR. CLARKE: Same objection.
THE COURT: Overruled.
DR. GERDES: Yes, it definitely could.
MR. SCHECK: If it were real?
DR. GERDES: Yes, if it were real.
(Brief pause.)
MR. SCHECK: Your Honor, I think that--I don't have another minute and 30 seconds.
THE COURT: You are done?
MR. SCHECK: No. I don't have much more, but I don't have another minute and 30 seconds--
THE COURT: All right.
MR. SCHECK: --on this line.
THE COURT: All right. Why don't you take that down for me, please.
(Brief pause.)
THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess until 1:30. All right. Dr. Gerdes, 1:30.
(At 11:59 P.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; MONDAY, AUGUST 7, 1995 1:30 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Mr. Cochran, is there something we need to take up?
MR. COCHRAN: Yes. I just wanted to bring something to the Court's attention. Your Honor, over the weekend, one of the real fine reporters, Robin Clark, lost his life. I wanted to propose to the Court either a moment of silence sometime this afternoon or adjourn early this afternoon, whatever the Court thinks is appropriate in that regard.
THE COURT: Yes. We left his seat vacant this morning.
MR. COCHRAN: I appreciate that. So if the Court thinks we can do something else, appreciate it.
THE COURT: All right. Thank you, counsel. All right. Deputy Magnera, let's have the jurors, please.
(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. Dr. Gerdes, would you resume the witness stand, please.
John Gerdes, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows: THE COURT: All right. Good afternoon again, doctor.
DR. GERDES: Good afternoon.
THE COURT: You are reminded, sir, you are still under oath. Mr. Scheck, you may continue with your redirect.
MR. SCHECK: Thank you, your Honor. Good afternoon, ladies and gentlemen of the jury.
THE JURY: Good afternoon.
REDIRECT EXAMINATION (RESUMED) BY MR. SCHECK
MR. SCHECK: Dr. Gerdes, let me discuss with you briefly the results on the glove. And I'd like to show you first the results of DNA analysis, Rockingham glove, which is Prosecution's 272. Now, Dr. Gerdes, Mr. Clarke asked you about the results from RFLP tests that were consistent with Nicole Brown Simpson and Ronald Goldman on various areas of the glove, specifically G1, G2, G3, G4, G9, that were confirmed by RFLP--well, G4--I'm sorry--that were confirmed by RFLP tests, correct?
DR. GERDES: Yes.
MR. SCHECK: All right. G11, G10 and G13 are the D1S80 results in the wrist area of the glove which produced results with Mr. Simpson; is that correct?
DR. GERDES: That's what they state, yes.
MR. SCHECK: Are there any RFLP results confirming that result?
DR. GERDES: No.
MR. SCHECK: Now, putting on the--this is Defense 1186, Mr. Yamauchi's diagram of the glove found at Rockingham. Dr. Gerdes, is this the--this diagram reflect what your understanding is of the--what Mr. Yamauchi did on the morning of June 14th between 9:00 and 10:00 o'clock when he handled the glove from Rockingham after having handled Mr. Simpson's reference sample where he had that incident where the--took off the top and the blood went through the chemex and onto his glove?
MR. CLARKE: Objection. Leading.
THE COURT: Sustained.
MR. SCHECK: Well, as far as the D1S80 results from the wrist area of the glove, what is your opinion as to the acceptable risks of cross-contamination with respect to those results?
MR. CLARKE: Objection. No foundation.
THE COURT: Overruled.
DR. GERDES: They were handled the same time or shortly after Mr. Simpson's reference sample was handled. The testimony states that the sample had leaked, and under those circumstances, it represents substantial risk that contamination could have happened.
MR. SCHECK: Are the D1S80 results in terms of the amount of DNA found in the wrist area of that glove consistent with cross-contamination from the sample handling error?
DR. GERDES: Yes.
MR. CLARKE: Objection. Calls for speculation.
THE COURT: Sustained.
MR. CLARKE: Move to strike the answer.
THE COURT: The answer is stricken.
MR. SCHECK: On the basis of the amounts of DNA in those D1S80 tests and your review of the procedures that Mr. Yamauchi used, do you believe--what do you believe about the level of risk of cross-contamination with respect to those results?
MR. CLARKE: Objection. No foundation. Calls for speculation.
THE COURT: Overruled.
DR. GERDES: There's substantial risk at cross-contamination under those circumstances.
MR. SCHECK: This is Defense 1308, testing results, Nicole Brown Simpson and Ronald Goldman reference samples. Now, Mr. Clarke asked you a series of questions about controls and evidence of cross-contamination from the way that samples were handled in the evidence processing room on June 14th and June 15th. Do you recall those?
DR. GERDES: The questions regarding--yes.
MR. SCHECK: All right. With respect to cross-contamination occurring in the handling of samples by Mr. Yamauchi on June 15th, specifically item 12, the last blood sample collected from the foyer in Mr. Simpson's home and Nicole Brown Simpson reference sample and Ron Goldman reference sample, do you believe that the results shown on this board are consistent with cross-contamination that was then retyped in two different laboratories, Cellmark and DOJ?
MR. CLARKE: Objection. No foundation. Calls for speculation and leading.
THE COURT: Overruled.
DR. GERDES: Yes.
MR. SCHECK: Are the results from this board part of the basis for your opinion that there were unacceptable risks of contamination in the way Mr. Yamauchi handled those samples on June 14th and June 15th?
DR. GERDES: Yes. These results were consistent with evidence that cross-contamination actually happened.
MR. SCHECK: Now, Dr. Gerdes, you were asked--let me show you what is--this is Defense 1297, a chart depicting runs and strips May through July of 1994, run contamination, strip contamination and/or artifacts. Now, Dr. Gerdes, you were asked quite a number of--you were asked quite a number of questions on cross examination about the distinction you made when analyzing strips where you put--you indicated there were strip contamination and/or artifacts. You recall those?
DR. GERDES: I do.
MR. SCHECK: And I call your attention to Prosecution's 566. Do you see that?
DR. GERDES: Yes.
MR. SCHECK: What is that strip?
DR. GERDES: And these are a series of strips that the Prosecution showed to demonstrate the weak 1.1 and I believe in reference to discussing the DX allele.
MR. SCHECK: All right. And this is the 1.1 in the presence of the 1, correct?
DR. GERDES: Correct.
MR. SCHECK: And it was your--was it your testimony that in looking at that 1, you could not tell if that was--that is, the 1.1's were contaminants or artifacts?
DR. GERDES: That's correct. Under this circumstance, you can't really tell if that's an artifact or contaminant.
MR. SCHECK: Is that why you made the distinction when you--
DR. GERDES: Yes.
MR. SCHECK: --identified the strips?
DR. GERDES: Yes. In terms of the strips, that's the reason why I did not really try to differentiate between the two because in many--situations such as this, you can't tell.
MR. SCHECK: Now, what relation--what relationship does a result such as depicted on 566, where you can't tell if it's a contaminant or artifact, have in terms of making erroneous typings?
MR. CLARKE: Objection. Vague.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: What is--why is it--what are the problems you see in the results such as depicted on 566 in terms of making an interpretation of the strip?
DR. GERDES: Well, on--if you look at the strip that has the 1.1 allele, the weak 1.1 allele, if this were a crime scene specimen, the interpretation of that would be that particular item where type is a 1.2, 1.2 because you can see the 1.2 signal here is dark and the 1 is dark; and for that reason, this would be probably typed as a 1.2, 1.2. but because of the weak 1.1, most likely, they would express the fact that that was present there and visible. And so it would be a 1.2, 1.2 consistent with a contributor of--with a 1.1. so it would be consistent with an individual with a 1.1, 1.1 or an individual with a 1.1, 1.2. so that obviously makes this a--that artifact has a potential of falsely accusing an individual who's a 1.1, 1.2 when in fact typing results is from a 1.2, 1.2.
MR. CLARKE: Excuse me. Objection. Calls for speculation. No foundation.
THE COURT: Overruled.
MR. SCHECK: Well, doctor, let me see if I can try to put this in as plain as English as I can. Is the existence of a faint dot like that in a mixture, can that cause an error?
DR. GERDES: Yes. And it doesn't matter if it's an artifact or a real contaminant. Either way, it can cause an error.
MR. SCHECK: Are dots of that intensity similar to the 1.3 dot we saw before on item 31 of the Bronco console?
DR. GERDES: Yes.
MR. SCHECK: We can turn off the--this is Defense 1295.
MR. SCHECK: Dr. Gerdes, you recall Mr. Clarke asking you questions about whether or not two analysts ever did samples on the same day in your calculation of runs? Remember that?
DR. GERDES: I remember that.
MR. SCHECK: Remember he asked you if you were sure about that?
DR. GERDES: Yes.
MR. SCHECK: All right. Have you rechecked your data?
DR. GERDES: Yes.
MR. SCHECK: Are you sure that two analysts didn't do or--strips on the same day?
DR. GERDES: Yes.
MR. SCHECK: Now, do these runs, as you recorded them by month, represent contamination, definite contamination on the day all the strips were run?
DR. GERDES: Yes. At this point, they're definite contamination because I take all of the strips on a given date and I can look in the context of what's in that--in all of those strips so that you can confirm with one strip whether you're seeing the same thing in more than one strip.
MR. SCHECK: So this chart represents definite contamination, no ambiguity about artifacts as far as you're concerned?
DR. GERDES: At this point, that's correct.
MR. SCHECK: By the standards that you were familiar with to accredit DNA laboratories, given this level of contamination in runs, in your opinion, would the Los Angeles Police Department be allowed to operate?
MR. CLARKE: Objection. No foundation. Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Are you familiar with the standards used to regulate DNA laboratories in clinical applications?
DR. GERDES: Yes.
MR. SCHECK: By those standards, would a lab be allowed to operate with this level of contamination?
MR. CLARKE: Same objection. Same grounds.
THE COURT: Sustained.
MR. SCHECK: Now, Dr. Gerdes, you were--excuse me. You were asked a whole series of questions by Mr. Clarke in regard to the use of PCR in other clinical applications. Do you recall those?
DR. GERDES: I do.
MR. SCHECK: Are you against the use of PCR technology per se?
DR. GERDES: No, I'm not.
MR. SCHECK: Do you use it yourself?
DR. GERDES: I do.
MR. SCHECK: Have you developed PCR tests yourself such as the CNV test?
DR. GERDES: Yes.
MR. SCHECK: If PCR base test is reliable for some clinical applications, does that mean it is reliable for all others?
DR. GERDES: No.
MR. SCHECK: Does that mean it is reliable for use on forensic samples?
DR. GERDES: No.
MR. SCHECK: Does the reliability of a PCR base technique depend on the standards and the quality of the lab that's using the technique?
DR. GERDES: Absolutely.
MR. CLARKE: Objection. Leading.
THE COURT: Overruled.
MR. SCHECK: Does it depend on the nature of the samples being tested?
DR. GERDES: Yes.
MR. SCHECK: Does the fact that the DQ-Alpha kit is sold commercially with the user guide mean that this technique is reliable for all forensic uses by all forensic laboratories?
DR. GERDES: No.
MR. SCHECK: Doctor, have you read--Mr. Clarke asked you a whole series of questions about kits. Do you recall those?
DR. GERDES: Yes.
MR. SCHECK: All right. Do you--are you familiar with the discussion in the NRC report with respect to the kits that were used in this case?
DR. GERDES: Yes, I am.
MR. SCHECK: Do you rely on that in formulating your opinions?
DR. GERDES: Yes.
MR. SCHECK: Your Honor, we would like to--I've shown this to Mr. Clarke. I'd like to put a slide on the screen.
THE COURT: Proceed.
MR. SCHECK: Would the Court like to see it first? I'll mark this in a second.
THE COURT: Mrs. Robertson, what is Defense next in order?
THE CLERK: 1312.
MR. SCHECK: 1312?
MR. CLARKE: I'm sorry. Could we have a moment before it's displayed, your Honor?
THE COURT: Yes.
(Deft's 1312 for id = slide)
MR. SCHECK: Let me just--it may be faster if I just read this.
THE COURT: You want to put it on the elmo? A little small?
MR. SCHECK: I included two extra sentences that I told him I wouldn't include.
THE COURT: All right.
MR. SCHECK: Do you agree with the following statement in the NRC report? "One commercial kit for forensic PCR analysis has been marketed." Now, let me just stop there. What kit is that?
DR. GERDES: At that time, that was the DQ-Alpha kit.
MR. SCHECK: "Other kits will probably be ready for commercial market soon." What kits would those be?
DR. GERDES: Polymarker and the D1S80.
MR. SCHECK: "The committee sees a potential for introduction of unreliable kits and the misuse of kits. The existence of a kit suggests ease of use and low chance of technical error. The committee believes that nonexpert laboratories will run a significant chance of error in using kits." Do you agree with that?
DR. GERDES: I do.
MR. SCHECK: What is your opinion about this--this--what the NRC said and the LAPD laboratory in this case?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
DR. GERDES: I believe that the situation we've seen here is precisely what the NRC is talking about here.
MR. SCHECK: And why is that?
MR. CLARKE: Excuse me. Objection. Calls for speculation.
THE COURT: Overruled.
MR. SCHECK: Why is that?
DR. GERDES: Because the LAPD has made substantial errors and have failed to see the subtleties that are critical to interpretation of this kind of testing due to the fact that they were inexperienced.
MR. SCHECK: So just the fact that one has a kit doesn't mean that you can apply it correctly?
DR. GERDES: That's correct.
MR. SCHECK: Dr. Gerdes, very quickly, you were asked a lot of questions about proficiency tests. Does it make a difference in proficiency tests that the tests involve samples that are just like the ones that you deal with in casework?
MR. CLARKE: Objection. Asked and answered.
MR. SCHECK: On redirect? All right. Just forget it all. I think you're right.
THE COURT: It's a point we've made.
MR. SCHECK: It's a point--well, you're right. A few times.
MR. SCHECK: All right. Do you recall Mr. Clarke asked you about the laminar flow hood in your--and the records you made in your notes, correct?
DR. GERDES: I remember that.
MR. SCHECK: All right. Can you please explain when you realized that the LAPD did not have a laminar flow hood?
DR. GERDES: That was on my second visit. The first visit, I didn't--I hadn't noticed that.
MR. SCHECK: Is there any question in your mind that that hood is not a laminar flow hood?
DR. GERDES: None whatsoever.
MR. SCHECK: Is the fact that it's not a laminar flow hood, does that create dangers of contamination in the laboratory?
DR. GERDES: Absolutely.
MR. SCHECK: Is a laminar flow hood a fundamental in terms of taking precautions against contamination in a DNA laboratory?
DR. GERDES: Yes.
MR. SCHECK: Is it disturbing to you that the Los Angeles Police Department DNA laboratory did not--was not aware that its hood was not a laminar flow hood?
MR. CLARKE: Objection. Leading, argumentative.
THE COURT: Sustained.
MR. SCHECK: What is the significance of this hood not being a laminar flow hood in terms of the level of competence and knowledge of the personnel at the LAPD DNA laboratory?
MR. CLARKE: Objection. Argumentative, no foundation.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. In terms of the ability--based on your experience as a DNA laboratory director, what is your opinion about laboratory personnel being unaware of the nature of the hood they're using when processing samples?
MR. CLARKE: Same objection. Same ground.
THE COURT: Sustained.
MR. SCHECK: In terms of the reliability of the procedures used at the Los Angeles Police Department in handling DNA samples, what in your judgment is the significance of their failure to know that their hood was not a laminar flow hood?
MR. CLARKE: Same objection. Same ground.
THE COURT: Sustained.
MR. SCHECK: Which--the ground is conclusion?
THE COURT: The issue here is, what's the benefit to having a laminar flow hood versus what's there. That's the real issue.
MR. SCHECK: Thank you.
MR. SCHECK: What's the benefit of having a laminar flow hood versus a chemical hood?
MR. SCHECK: Thank you, your Honor.
DR. GERDES: The laminar flow hood is designed to--for the applications where you're concerned about either contaminating an item or being contaminated by that item. That's what they're designed for. That's what their purpose is. A chemical fume hood was designed for an entirely different purpose which is not appropriate for handling those kind of samples.
MR. SCHECK: If you're working in a DNA laboratory, in your opinion, is it important to know the difference between a chemical hood and a laminar flow hood?
MR. CLARKE: Same objection. Same ground.
THE COURT: Overruled.
DR. GERDES: Yes, it's important.
MR. SCHECK: Now, you were asked many questions on cross-examination concerning your conclusions about incorrect typing results by the Los Angeles Police Department personnel on mock validation studies and proficiency tests. Do you recall those?
DR. GERDES: Yes, I do.
MR. SCHECK: All right. First I'd like to address the mock validation studies.
MR. SCHECK: Excuse me, your Honor. I'm sorry.
(Brief pause.)
MR. SCHECK: Now, I'm going to show you some slides, but first, I'd like to just refresh everybody's recollection with showing the raw data. The first mock validation study was one--if you can pull back--done by Mr. Yamauchi on September 9th. Do you recall that?
DR. GERDES: Yes.
MR. SCHECK: And this is where he was typing a vaginal swab with an epithelial fraction--
DR. GERDES: Yes.
MR. SCHECK: --and a sperm fraction?
DR. GERDES: Yes.
MR. SCHECK: All right. And you testified he got an incorrect typing result?
DR. GERDES: That's correct.
MR. SCHECK: Then the second one was the same set of samples typed on September 21st by Erin Riley. You recall that?
DR. GERDES: I do.
MR. SCHECK: Now, your Honor--
THE COURT: And, Mr. Harris, which exhibits are those?
MR. SCHECK: This is--first one is--561 is the September 9th and 562 is the September 21st.
THE COURT: Thank you.
MR. SCHECK: All right. Now, I would like to turn to the slide marked--
MR. SCHECK: What's the Defendant's next in order?
THE CLERK: 1313.
MR. SCHECK: 1314?
THE CLERK: 1313.
MR. SCHECK: I can't hear.
THE COURT: 1313.
MR. SCHECK: 1313. And I guess we'll call this A-1.
(Deft's 1313-A through 1313-C for id = slides)
MR. SCHECK: Now, Dr. Gerdes, what does this represent?
DR. GERDES: On the far left, it represents the correct type for this particular mock validation specimen. So the little symbol on top there stands for the male fraction. The male fraction should be a 1.2, 1.3. the next one below the epithelial cell or the female fraction should be 1.2, 4.
MR. SCHECK: What was the LAPD type?
DR. GERDES: On the sperm fraction, the LAPD found a 1.2, 4.
MR. SCHECK: And is that a correct type in your opinion?
DR. GERDES: No. You can see it does not match the anticipated male pattern that should have been there. The 1.2, 1.3 is not equal to 1.2, 4.
MR. SCHECK: Can we have the next slide, please.
MR. SCHECK: All right. Tell us what this represents in terms of the consequences of that mistyping.
DR. GERDES: What that means is the--given the LAPD type of 1.2, 4, if the suspect were a 4.4, a 1.2, 4 or a 1.2, 1.2, all of those individuals would be included as having matched that male fraction.
MR. SCHECK: Is that one of the reasons you think this is a mistake?
DR. GERDES: Yes. Because these suspects would have been wrongly accused.
MR. SCHECK: Next slide.
MR. SCHECK: What does this represent?
DR. GERDES: Well, since the true and correct type was missed, the 1.2, 1.3 was missed, the true perpetrator would not have been recognized and so he would have been excluded falsely. So, again, that's an error.
MR. SCHECK: The second slide I should note was B and this third slide is C.
THE COURT: That's correct.
MR. SCHECK: And is this the--are these among the reasons that you believe that these were erroneous typings?
DR. GERDES: Yes.
MR. SCHECK: Is this one reason you disagree with the statement in the validation study that no incorrect results were observed?
DR. GERDES: Yes.
MR. SCHECK: All right. I'd like now to turn to the next--
MR. SCHECK: You also discussed two other errors by--in proficiency tests. First one just to show the raw data--
MR. SCHECK: Could you pull back a little bit, please, so we can see the date.
MR. SCHECK: Now, what was--what were these set of samples on July 14th?
DR. GERDES: These were proficiency samples that were part of--well, part of a proficiency test.
MR. SCHECK: And what does that mean? Where do the samples come from?
DR. GERDES: They come from an external source.
MR. SCHECK: All right. Are they supposed to have contaminants in them?
DR. GERDES: No.
MR. SCHECK: All right. And this was the run done by Erin Riley on 7-14-93?
DR. GERDES: Correct.
MR. SCHECK: Where you found an incorrect typing?
DR. GERDES: That's correct.
MR. SCHECK: All right. And is this the raw data for the--when she did it again on?
DR. GERDES: She repeated it on 7-15.
MR. SCHECK: Okay. Thank you.
MR. SCHECK: Now, can we turn to the next set of slides I would ask be marked Defendant's 13--
THE COURT: 14.
MR. SCHECK: 1314. And ask slide no. 1 which we'll call 1314-A.
(Deft's 1314-A through 1314-G for id = slides)
MR. SCHECK: Now, could you please explain to the jury what this data represents?
DR. GERDES: Well, this is the 7-14-93 proficiency samples, and on that particular date, the female reference sample no. 1 was typed by LAPD as a 1.3, 4 and the correct type is a 1.2, 4.
MR. SCHECK: Now, what is the--what does it say? No. 8, negative control, what does that represent?
DR. GERDES: The control that's supposed to be a negative control, it should have no DNA whatsoever, in this case, showed the indication of DNA, and that DNA was typeable as including 1.2 and 4 alleles.
MR. SCHECK: All right. Can we have the next slide, please, which will be 1314-B.
MR. SCHECK: What does this indicate?
DR. GERDES: Well, the type--the LAPD type was a 1.3, 4. The alleles that were found on the negative control included a 1.2, 4, and from that, we can conclude that the 1.3 was not depicted on the negative control.
MR. SCHECK: Now, in other words, you're saying this means that there was contamination that caused an incorrect type here that was not detected by the negative control?
DR. GERDES: That's correct.
MR. SCHECK: Now, in your review of the LAPD lab in your study of contamination of runs and contamination of strips, in how many instances did you detect contamination that was not picked up by the negative control? In other words, the negative control was blank, but you nonetheless saw contamination.
DR. GERDES: 28 percent of the times.
MR. SCHECK: Now, let's go to the--then this represents the typing by Erin Riley on 7-14?
DR. GERDES: Correct.
MR. SCHECK: Now, you remember Mr. Clarke asked you questions about what would you--did Erin Riley do the right thing when she typed it again, and you said yes, correct?
DR. GERDES: Yes.
MR. SCHECK: But at that time, you--could you please further explain what--the answer to that question?
DR. GERDES: Certainly. The correct procedure actually would be, the minute you see any indication of contamination, you need to shut down your operation, you need to clean up with bleach, you need to make new reagent, you need to identify the source of contamination, do a large number of negative controls to make sure they're clean and that you've gotten away from whatever the problem is, and only then do you repeat the test and go on.
MR. SCHECK: Now, should those steps, in terms of documenting the contamination and the efforts to correct it, be documented?
DR. GERDES: Yes.
MR. SCHECK: Were those documented in the data you saw from the Los Angeles Police Department?
DR. GERDES: No.
MR. SCHECK: Just where--what is the significance in terms of contamination that these are proficiency test samples that come from an outside source and you see this contamination?
DR. GERDES: It simply means that the laboratory has introduced this contaminant into the specimen.
MR. SCHECK: And the contamination here caused in your judgment an incorrect typing?
DR. GERDES: That's correct.
MR. CLARKE: Objection. Leading. Also calls for speculation.
THE COURT: Sustained. The answer is stricken. Rephrase the question.
MR. SCHECK: Can we have the next slide, please, which would be 1314-C.
MR. SCHECK: Is this the--
DR. GERDES: This is the rerun on 7-15-93 of that same proficiency test. And again, no. 1, female reference sample was once again typed as 1.3, 4, indicating that they did nothing to remove the contaminant. It's still there. It's still causing the same error. The correct type should have been a 1.2, 4, and on this particular occasion, the negative control was once again showing DNA and the DNA that was shown is a 1.2, 1.3 this time.
MR. SCHECK: Next slide, please. 1314-D I believe.
DR. GERDES: So again, there is an incorrect type on the sample itself.
MR. SCHECK: Next slide, please.
DR. GERDES: The contaminating alleles of this particular run were a 1.2 and a 4.
MR. SCHECK: Next--
MR. SCHECK: On 7-14, the contaminating alleles were?
DR. GERDES: A 1.2 and a 4.
MR. SCHECK: All right. And let's--next slide.
DR. GERDES: And the contaminating runs on 7-15 were 1.2 and 1.3.
MR. SCHECK: Next slide.
DR. GERDES: So between those two days, you can see how random this process is. What we have is a 1.3 has now appeared on the negative control strip and the 4 contaminant has disappeared.
MR. SCHECK: Is this any way to run a railroad?
MR. CLARKE: Excuse me. Objection. Argumentative.
MR. SCHECK: Excuse me. Is this any way to run a DNA laboratory?
MR. CLARKE: Same objection, your Honor. Also--
THE COURT: Overruled.
DR. GERDES: No.
MR. CLARKE: It's also beyond the scope of the witness' expertise.
THE COURT: Overruled.
MR. SCHECK: Just briefly, Mr. Clarke asked you about other PCR base techniques. For example, he asked you about laboratories that can detect a single cell. Do you recall those questions?
DR. GERDES: I do.
MR. SCHECK: When laboratories are amplifying up and doing a PCR base technique on a single cell, how many negative controls do they ordinarily use for that application?
MR. CLARKE: Objection. No foundation.
THE COURT: Overruled.
DR. GERDES: They would use generally 10 for each sample.
MR. SCHECK: And why is that?
DR. GERDES: When you're looking at something of that low a concentration, you need to be absolutely sure that you are not getting contamination.
MR. SCHECK: And would it be a fair statement that depending on the application, different controls are necessary?
DR. GERDES: Yes.
MR. SCHECK: Now, you were asked a whole series of questions about not having done forensic samples in your own laboratory and not attending forensic meetings. Do you recall that?
DR. GERDES: I remember those.
MR. SCHECK: And incidentally, you were asked some questions about attending forensic meetings at the FBI. Do you recall those?
DR. GERDES: I remember.
MR. SCHECK: And can anybody go to those FBI meetings?
DR. GERDES: No. You need to be invited.
MR. SCHECK: Did they ever invited you?
DR. GERDES: No.
MR. SCHECK: Now, you can go to other forensic meetings voluntarily; is that correct?
DR. GERDES: Yes, you can.
MR. SCHECK: Now, you have criticized here, have you not, the method that the Los Angeles Police Department personnel used in collecting the blood swatches wet in plastic bags. You recall that?
DR. GERDES: I do.
MR. SCHECK: To evaluate the scientific merits of that procedure, do you believe that you're unable to do so because you have not attended forensic meetings?
DR. GERDES: No.
MR. SCHECK: That you haven't done specifically forensic samples in your laboratory?
DR. GERDES: No.
MR. SCHECK: Upon--is your--what is your opinion based upon?
DR. GERDES: I think the fundamental science here is basically microbiology because that's the science that deals with how to manipulate and handle samples in such a way to prevent cross-contamination and to prevent them from becoming degraded.
MR. SCHECK: And your experience as a DNA laboratory director, does that have relevance here too?
DR. GERDES: Yes.
MR. SCHECK: In terms of the procedures followed on June 13th in taking the swatches out of the plastic bags from Bundy and Rockingham, not changing gloves, not changing papers when put into test tubes, do your criticisms of that depend upon, in your judgment, attendance of forensic meetings or doing forensic samples?
DR. GERDES: No.
MR. SCHECK: What about the methods used for taking those samples out of the test tubes by scraping and creating aerosols? Does your criticisms of that depend upon the attendance of forensic meetings or running forensic samples?
DR. GERDES: No.
MR. SCHECK: What is--what are those criticisms based on?
DR. GERDES: Once again, the fundamental issue here is understanding how those manipulations can cause cross-contamination. That's a microbiology issue.
MR. SCHECK: Is it an issue also as a DN--in terms of--
DR. GERDES: In a DNA or molecular biology PCR lab. Those are molecular biology fundamental science issues.
MR. SCHECK: In terms of handling Mr. Simpson's reference sample in the way that Mr. Yamauchi did along with the Rockingham glove and all the Bundy blood drop swatches between 9:00 and 11:00 o'clock on the morning of June 14th, in terms of your criticisms with that, do you believe that it is necessary to attend forensic meetings?
DR. GERDES: No.
MR. CLARKE: Objection. Calls for speculation.
THE COURT: Overruled.
MR. SCHECK: Do you believe that not having done forensic samples in your laboratory makes you unable to evaluate that?
DR. GERDES: No.
MR. SCHECK: What are your criticisms based on in terms of your background and experience?
DR. GERDES: Once again, it's a fundamental question of basic training in microbiology and molecular biology as to how to handle these items that contain very small amounts of material in such a way so that you don't have the risk of creating error and cross-contamination.
MR. SCHECK: Mr. Clarke asked you about the fact that you once testified for a Prosecutor and on other times testified for Defense lawyers. Do you recall that?
DR. GERDES: Yes.
MR. CLARKE: Objection. Misstates the evidence.
THE COURT: Overruled.
MR. SCHECK: Does it--in terms of--do you--does it matter to you which side you testify for?
DR. GERDES: No.
MR. SCHECK: Upon what do you make your decisions as to--in terms of your testimony?
DR. GERDES: I'm asked to evaluate the science as to whether the science is fundamentally sound and that's what I express an opinion about.
MR. SCHECK: And you testify for either side?
DR. GERDES: Correct.
MR. SCHECK: Now, you were asked some questions about the money that you've been paid in this case and your salary. Do you recall those?
DR. GERDES: Yes.
MR. SCHECK: And do you recall the questions that you're being paid at what, the rate of $100 an hour here?
DR. GERDES: That's correct.
MR. SCHECK: And that your salary at IAD is not at $100 an hour. Do you recall those questions?
DR. GERDES: Yes.
MR. SCHECK: Now, first of all, do you personally receive the money that you get from this case or any others where you testify as a witness?
DR. GERDES: No. All of the lab--all of the charges go directly to my laboratory.
MR. SCHECK: And in terms of the amount of money that--you write grant proposals; is that correct?
DR. GERDES: Yes.
MR. SCHECK: And as part of that, do you have to make an assessment of how much it costs IAD to have you as an employee?
DR. GERDES: Yes. That's part of writing a budget for a grant.
MR. SCHECK: And is the expenditure of money that IAD pays you reflected merely in your salary?
DR. GERDES: No. You have an additional 43 percent in indirects and benefits.
MR. SCHECK: All right. And when you're away from the laboratory, does IAD's--is there an opportunity cost for IAD? Could you explain what that term is?
DR. GERDES: Yes. Well, since I'm not at the laboratory, my function at the laboratory is to promote the work of that laboratory. So my productivity is lost. It's just not my time, but my productivity in terms of working in the lab and getting business for that laboratory is lost to the company.
MR. SCHECK: Now--
MR. SCHECK: This is the last line of questions, your Honor.
MR. SCHECK: Dr. Gerdes, you indicated that over a five-year period, you have testified in court about 23 times?
DR. GERDES: That's correct.
MR. SCHECK: All right. And in those cases, your CV has been put into evidence?
DR. GERDES: Yes.
MR. SCHECK: And you've been questioned extensively about your background?
DR. GERDES: Yes.
MR. SCHECK: And you indicated I think at the very beginning of the cross-examination that there came a period of time--let's see. You indicated you got your Ph.D. in four years at UCLA?
DR. GERDES: Correct.
MR. SCHECK: Then you did post-graduate work for three years?
DR. GERDES: Correct.
MR. SCHECK: Also at UCLA?
DR. GERDES: Correct.
MR. SCHECK: Then you moved to Hawaii?
DR. GERDES: No. Then I went to Denver for--
MR. SCHECK: Denver. I'm sorry.
DR. GERDES: As an assistant professor for four years first.
MR. SCHECK: And then you moved to Hawaii?
DR. GERDES: Then I moved to Hawaii.
MR. SCHECK: All right. And you were asked about that, right?
DR. GERDES: Yes.
MR. SCHECK: Why did you move to Hawaii and sort of get off this track?
DR. GERDES: Well, it was a personal decision. I had a small son, and I decided to play Mr. Mom for a few years, and so we went to Hawaii.
MR. SCHECK: Your wife had an opportunity there?
DR. GERDES: She had an opportunity for a job.
MR. SCHECK: And you indicated--why did you--could you explain a little bit about why you had to be on television when you taught these classes at the community college?
DR. GERDES: Well, in Hawaii, there are a series of islands, and it's just the best way to communicate to remote sites.
MR. SCHECK: And, finally, Dr. Gerdes, you were asked about working for the pineapple factory. Do you recall that?
DR. GERDES: Yes.
MR. SCHECK: All right. Does that have some relevance to the issue of contamination?
DR. GERDES: In fact it does.
MR. SCHECK: Could you please tell this jury what you did for the pineapple company?
DR. GERDES: Well, the pineapple company had a problem with their cans blowing up. In fact, they had--
MR. SCHECK: What do you mean by blowing up?
DR. GERDES: Well, they would swell up and then just explode, and basically they had some of the workers injured in fact from this. So I was called in to track down why those cans were blowing up, and it turned out to be bacterial contamination.
MR. SCHECK: Thank you very much, doctor.
THE COURT: Mr. Clarke.
MR. CLARKE: Yes. Thank you, your Honor.
RECROSS-EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Gerdes, with regard to finding DNA on a steering wheel, is that unexpected?
DR. GERDES: Finding DNA on a steering wheel?
MR. CLARKE: Yes.
DR. GERDES: Not necessarily. This is extremely sensitive technique. It might find it there.
MR. CLARKE: In other words, someone might have driven a car and left DNA from driving the car; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Might have nothing to do with blood; is that right?
DR. GERDES: That's true.
MR. CLARKE: And blood could, in fact, be deposited on top of the DNA that somebody left driving the car a week earlier?
DR. GERDES: That's true.
MR. CLARKE: Your Honor, if I might, I would like to utilize--I just can't remember the number, but the Defense Bronco board. It was displayed earlier this morning.
THE COURT: Well, we'll trust Mr. Wooden to find it.
(Brief pause.)
THE COURT: All right. This is 1309.
MR. CLARKE: Yes. Thank you, your Honor.
MR. CLARKE: Now, Dr. Gerdes, if I can refer your attention--and perhaps I can get the pointer. And in particular, with respect to this--shall we call it a yellow dot that's pointing up that says do you agree--oh, that's referring to the signal or the dot just to the right of the 1.3 allele, correct?
DR. GERDES: Correct.
MR. CLARKE: And with regard to that particular dot, that was a part of the Department of Justice interpreting as minor alleles, in other words, not as strong as the 1.1 and 1.2 the type 1.3, 4; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Now, with regard to that--
MR. CLARKE: And, your Honor, at this point, I would like to have marked as People's next in order--not the pointer.
THE COURT: 573.
(Brief pause.)
MR. CLARKE: Perhaps I can do it this way.
MR. CLARKE: Dr. Gerdes, do you have copies of the Department of Justice raw notes?
DR. GERDES: Yes.
MR. CLARKE: And would there, in fact, be a one-page sheet showing the way that the Department of Justice viewed these strips and made notations about types?
DR. GERDES: Yes.
MR. CLARKE: Okay. If I could then, what I think I'll do is show you this. Showing you what will be marked--I'm sorry--5--
THE CLERK: 573.
THE COURT: 573.
MR. CLARKE: 573.
(Peo's 573 for id = DOJ typing sheet)
MR. CLARKE: First of all, Dr. Gerdes, does that appear to be a Xerox copy of one of those typing sheets from the Department of Justice?
DR. GERDES: Yes.
MR. CLARKE: And does that appear to be a document that you also have a Xerox copy of?
DR. GERDES: Yes.
MR. CLARKE: Okay. And, your Honor, with regard to this exhibit, I would ask to place it on the overhead projector.
MR. CLARKE: And, Dr. Gerdes, just from looking at the sheet from a distance, is item no. 31 what's labeled DNA 18; in other words, what would be the third row from the top?
DR. GERDES: Yeah. I'd like to double-check that--
MR. CLARKE: Sure.
DR. GERDES: --just to--it's confusing with the numbers and--
MR. CLARKE: Please do.
(Brief pause.)
DR. GERDES: That's correct.
MR. CLARKE: Okay. Now, if we focus on the third row down labeled "DNA 18," inside those boxes are a scoring system wherein the analyst looks at the strips and then assigns each of those dots a frequency--I'm sorry--an intensity, that is how dark it is relative to the C dot; is that right?
DR. GERDES: That's correct.
MR. CLARKE: All right. Then, your Honor, if we could zoom in on DNA 18. A little bit more. That's fine.
MR. CLARKE: And, Dr. Gerdes, if you could, could you tell us where the scoring for the 1.3 dot would be on this particular sample, which is DNA 18, but is LAPD no. 31?
DR. GERDES: Can I use the pointer?
MR. CLARKE: Sure.
DR. GERDES: It would be under the 1.3 column. So it would be right here (Indicating).
MR. CLARKE: So that particular 1.3 dot was scored by the analyst--actually analysts; is that correct?
DR. GERDES: Yes. There are two analysts.
MR. CLARKE: Was Renee Montgomery the analyst in this particular instance?
DR. GERDES: Yes.
MR. CLARKE: And who else read that chart--I'm sorry--read that script as well?
DR. GERDES: Confirming analyst I believe was Gary Sims. Yes. Over in the corner, gas, Gary Sims.
MR. CLARKE: Now, referring to that particular interpretation, is it then correct that both analysts scored the 1.3 dot as the same intensity as the C dot?
DR. GERDES: They state that it's approximately equal to the C dot on their interpretation, yes.
MR. CLARKE: Actually they note that in two different locations on this particular scoring sheet, don't they?
DR. GERDES: It's--yes. The arrow right now is pointing to that notation.
MR. CLARKE: Okay. The first indication is where it's labeled c; is that correct?
DR. GERDES: On the strip squares themselves, yes.
MR. CLARKE: That's to the left of the arrow?
DR. GERDES: Yes.
MR. CLARKE: And perhaps if we could just point to the C.
DR. GERDES: You're talking about this C (Indicating)?
MR. CLARKE: Yes.
DR. GERDES: Yes.
MR. CLARKE: Okay.
DR. GERDES: And it's actually indicated here as well (Indicating).
MR. CLARKE: So, in other words, off to the right, it is indicated 4, approximately the same as C, approximately the same as 1.3?
DR. GERDES: That's what's indicated.
MR. CLARKE: Incidentally, was Dr. Blake present during this particular analysis?
DR. GERDES: It states that in the corner of the document. So apparently he was.
MR. CLARKE: Now, going back to the user guide, the user guide in fact directs the user that any signal at an intensity of the C dot or higher is a positive signal that can be called, correct?
DR. GERDES: That's what they say.
MR. CLARKE: That's what the user guide says, correct?
DR. GERDES: Correct.
MR. CLARKE: And, in fact, the user guide is the same user guide that you described as containing accepted scientific procedures, correct?
DR. GERDES: It--yes. I've stated that I agree with parts of it and I disagree with others, yes.
MR. CLARKE: With respect to interpretation of dots at the intensity level of the C dot or above, that's a correct procedure, isn't it?
DR. GERDES: Again, I disagree with that aspect of it because it's in the presence of a mixture, and when you have a mixture, the dot intensity question becomes confused because the C dot is really developed by the presence of the primary contributor. So using that as a relative gauge is no longer something that I would do.
MR. CLARKE: It is, in fact, what Roche molecular systems describes as an appropriate way to interpret the presence of types, correct?
DR. GERDES: I believe if you read the user guide, they themselves state that in the presence of mixtures, you should use extreme caution.
MR. CLARKE: And, in fact, they state that you should use caution in interpreting any mixture, correct?
DR. GERDES: That's correct.
MR. CLARKE: But they also state that a signal that is equal to the C dot or greater is a positive signal that can be interpreted as present, correct?
DR. GERDES: That's what they state.
MR. CLARKE: Now, I'd like to shift, if I could then, your Honor, to what I believe to be 1310, but it's a similar board dealing with the Bundy drop.
(Brief pause.)
MR. CLARKE: Now, Dr. Gerdes, showing you what's been marked exhibit 1310, you stated that you felt that it was arbitrary to call the 1.3 dot as present with regard to item no. 31, the Bronco console, correct?
DR. GERDES: Right.
MR. CLARKE: When it's not called as part of item no. 52, which is the Bundy blood drop, as reflected on the typing strip on Defendant's exhibit 1310, correct?
DR. GERDES: That's my opinion.
MR. CLARKE: Now, I have an additional page I would like marked as I believe People's 574.
THE COURT: Yes.
(Peo's 574 for id = typing sheet)
MR. CLARKE: Dr. Gerdes, showing you what will be marked People's 574, does that appear to be a similar typing sheet from the Department of Justice that includes the DQ-Alpha typing of the Bundy blood drop no. 52?
DR. GERDES: This is the typing that was performed on 10-31, yes.
MR. CLARKE: October 31st?
DR. GERDES: Yes. It was typed twice.
MR. CLARKE: All right. Then, your Honor, with the Court's permission, may I display the sheet?
THE COURT: Yes.
(Brief pause.)
MR. CLARKE: Now, this was a typing--and I believe you described previously that there are actually two DQ-Alpha typing runs on no. 52 at the Department of Justice, correct?
DR. GERDES: That's correct.
MR. CLARKE: Now, that is also referred to by the Department of Justice as DNA 55A?
DR. GERDES: Yes.
MR. CLARKE: Then would it be correct that the second row down, that is the second row below the first row--
DR. GERDES: It's right here, yes (Indicating).
MR. CLARKE: --reflects those typing results on the Bundy drop, LAPD item no. 52?
DR. GERDES: That's correct.
MR. CLARKE: Now, with regard to the 1.3 allele, let's start with--and who was the analyst?
DR. GERDES: The analyst again was Renee Montgomery.
MR. CLARKE: And was there a second reader or confirming analyst?
DR. GERDES: Gary Sims. Gary Sims.
MR. CLARKE: With respect to their viewing of that original strip and the 1.3 allele, what did they note about that particular dot?
DR. GERDES: They state that there's a trace and that it's less than the C.
MR. CLARKE: Actually under the 1.3 box, they state C minus slash trace, correct?
DR. GERDES: Correct.
MR. CLARKE: Meaning that the intensity of that dot was less than the C dot, correct?
DR. GERDES: That's what they see. That's correct.
MR. CLARKE: Now, turning to the far right under "Comments," there's actually some more notations that include C greater than 1.3?
DR. GERDES: Correct.
MR. CLARKE: Meaning that the 1.3 dot was less intense than the C dot?
DR. GERDES: That's correct.
MR. CLARKE: And then is there also a notation that appears to have Gary Sims' initials?
DR. GERDES: Yes.
MR. CLARKE: And what does Mr. Sims note there?
DR. GERDES: He also indicates the C minus which is less than a C dot.
MR. CLARKE: The intensity of that dot with regard to item no. 52 then was less than the C dot, correct?
DR. GERDES: Correct.
MR. CLARKE: In comparison to item no. 31, the intensity of the 1.3 dot relative to the C dot was different, wasn't it?
DR. GERDES: Yes.
MR. CLARKE: And the user guide prescribes appropriate ways of interpreting evidence when dots are either equal to or greater than the C dot versus less than the C dot?
DR. GERDES: Once again, I disagree with that, but they do.
MR. CLARKE: Objection. Move to strike, your Honor. Nonresponsive.
THE COURT: Overruled.
MR. CLARKE: The user guide provides that those are different interpretations to be made or suggested to be made to analysts, correct?
DR. GERDES: Yes.
MR. CLARKE: So in reality, what you have called not real in this situation and real with regard to item no. 31 are two different situations, aren't they?
DR. GERDES: Well, the other aspect of this that you didn't mention is the fact that these 1.3's are showing up on the control strips.
MR. CLARKE: Well, what I'm asking though, Dr. Gerdes, is, with respect to item 52, the 1.3 is less than the C, correct?
DR. GERDES: Yes.
MR. CLARKE: With respect to QC877, the 1.3 is less than the C, isn't it?
DR. GERDES: Yes.
MR. CLARKE: And with regard to the positive control, the 1.3 noted by the analyst is less than the C dot, correct?
DR. GERDES: Yes.
MR. CLARKE: All of the samples in this particular series of 3 on Defendant's exhibit 1310 showed 1.3 alleles less than the C dot, correct?
DR. GERDES: Yes.
MR. CLARKE: And, in fact, that C dot is very important in the interpretation of results, correct?
DR. GERDES: It's important when you know you don't have a mixture.
MR. CLARKE: Incidentally, doctor--
MR. CLARKE: And perhaps we can remove the board.
(Brief pause.)
MR. CLARKE: Incidentally, in your laboratory, these protocols that exist, you want your analyst to follow the protocols that you have in place in the lab, correct?
DR. GERDES: Yes.
MR. CLARKE: Now, I'd like to turn your attention, if I can, to the area of the Bundy drops, no. 47 through 50 as well as 52, and in particular, the potential you raised of cross-contamination. Do you recall that testimony?
DR. GERDES: Yes, I do.
MR. CLARKE: First of all, you've made no studies about cross-contaminating, that is contamination among forensic samples, correct?
DR. GERDES: I haven't done any of the studies myself, no.
MR. CLARKE: You've had no training whatsoever in evidence collection techniques as used by police?
DR. GERDES: No.
MR. CLARKE: You have no personal experience in evidence collection of any manner, correct, as far as forensic samples?
DR. GERDES: I believe I've answered that. Yes.
MR. CLARKE: And you've collected--conducted absolutely no validation studies involving forensic samples, correct?
DR. GERDES: That's correct.
MR. CLARKE: Do you believe you are as qualified as Gary Sims to offer an opinion to this jury about proper methods of evidence collection?
DR. GERDES: I think I've seen a wealth of evidence as it's been introduced, and with my experience in microbiology, I feel I'm adequately qualified to speak to those issues.
MR. CLARKE: Do you feel you're as qualified as Gary Sims?
MR. SCHECK: Objection, your Honor. Calls for speculation.
THE COURT: Sustained.
MR. CLARKE: Is there a term called "Hypothesis testing"?
DR. GERDES: Yes.
MR. CLARKE: What's that mean?
DR. GERDES: Well, you--"Hypothesis" is an explanation for something and then testing it would be involved setting up an experiment to test it.
MR. CLARKE: In other words--and perhaps you could tell us, what is a "Hypothesis"?
DR. GERDES: A "Hypothesis" is basically a--an explanation and that is a possible explanation for something, and then testing it would involve designing, for instance, a scientific experiment to test how likely that explanation is the true explanation.
MR. CLARKE: And that's part of the scientific method?
DR. GERDES: Yes.
MR. CLARKE: As we're taught in elementary school and higher education?
DR. GERDES: Yes.
MR. CLARKE: As far as this issue of cross-contamination of samples, because your lab is not a forensic lab, you don't conduct any investigations into that type of potential, do you?
DR. GERDES: In any scientific endeavor, scientific results are documented or should be if it's a scientific method so that an independent analyst who's trained in the science can look at--doesn't have to do the experiments. He can look at the data and do hypothesis testing based on the data, and it's frequently done in the scientific fields.
MR. CLARKE: As far as your hypothesis, that is of the potential that these Bundy blood drops were cross-contaminated, you have conducted absolutely no testing to test whether or not that could occur in forensic samples, correct?
DR. GERDES: I have looked at the data as objectively as possible in terms of the results that the LAPD produces on validation and other specimens, and based on that, I can make conclusions about the likelihood of that hypothesis.
MR. CLARKE: Have you conducted any physical tests to prove whether or not that could happen the way you have suggested it might?
DR. GERDES: No, I haven't.
MR. CLARKE: With regard to item no. 47, can you tell us how much DNA was in that blood drop when it was deposited when the person bled?
DR. GERDES: Before it degraded? No.
MR. CLARKE: Is that also true of item no. 48?
DR. GERDES: That's true.
MR. CLARKE: 49?
DR. GERDES: Yes.
MR. CLARKE: 50?
DR. GERDES: Yes.
MR. CLARKE: And 52?
DR. GERDES: Yes.
MR. CLARKE: And, in fact, the levels of DNA in a bloodstain can be the level of DNA that was left there by the blood donor instead of from cross-contamination, correct?
DR. GERDES: It's--that's possible.
MR. CLARKE: You don't know how much bacteria was present on any of these surfaces, do you?
DR. GERDES: Well, I know there was enough bacteria to cause substantial degradation.
MR. CLARKE: You have conducted no tests to determine if the amount of bacteria, for instance, in item no. 47 was the same on through out to item no. 52 on the back driveway, have you?
DR. GERDES: As far as quantitating the bacteria, no.
MR. CLARKE: Is it important--is it--well, let me rephrase that. Would it be a factor in determining how much degradation occurred, to know how much bacteria was present in each of those samples?
DR. GERDES: No. I think that the important--the critical aspect of this is how much degradation there is on the DNA, not how much bacterias there are.
MR. CLARKE: Isn't it important to know how much DNA was there to start with?
DR. GERDES: There's no way of determining that.
MR. CLARKE: Is it important to know that?
DR. GERDES: It would be--it would be--if you could determine that, it would be important.
MR. CLARKE: Because that would tell you how much degradation actually occurred from bacteria; isn't that right?
DR. GERDES: Yes.
MR. CLARKE: As far as item no. 117--and so we're clear, item no. 52 was a bloodstain on the back driveway, correct?
DR. GERDES: Correct.
MR. CLARKE: Item no. 117 was a bloodstain on the back gate?
DR. GERDES: Correct.
MR. CLARKE: Is it your testimony that the conditions where the blood was actually recovered from was the same for item 52 as it was for 117?
DR. GERDES: The exact--it wasn't the exact location. I think it was on the same general area. So I would anticipate the conditions would be approximately the same.
MR. CLARKE: Well, wasn't one of them found on a driveway, a surface that is flat?
DR. GERDES: Yes.
MR. CLARKE: Wasn't one of them found on a vertical surface or something at an up and down location?
DR. GERDES: Yes.
MR. CLARKE: As far as the collection of items no. 115, 116 and 117, first of all, they're all from the back gate, correct?
DR. GERDES: Correct.
MR. CLARKE: Can you tell us how long they were in plastic bags after they were recovered?
DR. GERDES: As far as I know, that's not known.
MR. CLARKE: Is that an important fact in comparing relative DNA amounts and relative bacterial degradation?
DR. GERDES: It might have some bearing, but I wouldn't anticipate it would be a major difference in terms of the amount of time.
MR. CLARKE: You have criticized the use of plastic bags in terms of collecting evidence and transporting it and storing it in plastic bags, correct?
DR. GERDES: Correct.
MR. CLARKE: Wouldn't the amount of time that a wet bloodstain was in a plastic bag be very important in determining degradation?
DR. GERDES: It would be relevant.
MR. CLARKE: It would be more than relevant, wouldn't it?
DR. GERDES: It would be important.
MR. CLARKE: What time of the day were 115, 116 and 117 collected?
DR. GERDES: I think it was in the afternoon, but I'm not a hundred percent sure on that. I'd have to look it up.
MR. CLARKE: Do you know how hot it was that day?
DR. GERDES: No.
MR. CLARKE: Isn't that important?
DR. GERDES: It could have some relevance.
MR. CLARKE: Well, it could have a good deal of relevance in terms of comparing relative degradation amounts, correct?
DR. GERDES: Yes.
MR. CLARKE: Can you tell us how long 115 through 117 were in their plastic bags in the truck?
DR. GERDES: I haven't seen that written anywhere. I'm not sure--I'm not aware of that.
MR. CLARKE: Wouldn't that be important to know also to compare degradation of those samples versus degradation due to bacteria of the original Bundy blood drops?
DR. GERDES: It would, but those are a month older to begin with too. So it's kind of hard to figure out what's going on here.
MR. CLARKE: Well, a bloodstain on a gate isn't the same as a wet bloodstain in a plastic bag, is it?
DR. GERDES: No.
MR. CLARKE: In fact, when blood dries, it becomes--well, let me rephrase that. Isn't dry blood a much better form to store blood in to preserve its DNA content than wet blood?
DR. GERDES: That's true.
MR. CLARKE: In fact, dry bloodstains have--are capable of being typed after weeks, months, years or even decades in some instances, correct?
DR. GERDES: That's been claimed.
MR. CLARKE: Well, hasn't that been demonstrated by the scientific literature?
DR. GERDES: Yes.
MR. CLARKE: Aren't all of these factors, when an item was collected, how much DNA was present, how much bacteria was present, how the items were stored, temperature and each of the items that we have just discussed, aren't they all important factors in rendering an opinion about relative degradation in one sample and another?
DR. GERDES: Yes.
MR. CLARKE: And you have rendered that opinion of comparing 117 with 52 without knowing information or having information about each of these factors that we've just described?
DR. GERDES: Not all of those are known, but the fact is, it's an older sample and my opinion is based on that.
MR. CLARKE: May I have a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: When you say that one of the samples was a month older, which one are you talking about?
DR. GERDES: They were collected later.
MR. CLARKE: Is that the only comment you're making, is--as far as a one-month period?
DR. GERDES: Starting at a different starting point.
MR. CLARKE: And by "Starting point," what do you mean?
DR. GERDES: In terms of how old the specimen was before it was collected.
MR. CLARKE: Isn't it correct that you cannot testify that those samples weren't deposited at the same time or within minutes of one another?
DR. GERDES: I'm not talking about when they were deposited. I'm talking about when they were collected.
MR. CLARKE: I'm referring to now when they were deposited. From your review of these materials, you cannot state that those two samples weren't deposited within minutes of each other, can you?
DR. GERDES: As far as when they were deposited, no.
MR. CLARKE: Now, I believe, Dr. Gerdes, you described the fact that from your review of the materials--and I'm referring to the LAPD validation studies--that you could find no instance in which there was more than one run on the same day.
DR. GERDES: In the table that I looked at, yes.
MR. CLARKE: Okay.
DR. GERDES: That I derived.
MR. CLARKE: So you're going only by the chart that you made; is that right?
DR. GERDES: Yes.
MR. CLARKE: As far as the materials that you have--and I'm referring to the validation studies--do you only have in your possession those particular records where you charted an event like contamination in your opinion?
DR. GERDES: No. I have the complete set of records.
MR. CLARKE: Okay. Can I refer your attention then to the date of May 6th, 1994 in your records.
DR. GERDES: Yes.
MR. CLARKE: And in particular, who was the analyst on the first run that you show for May 6th?
DR. GERDES: Collin Yamauchi.
MR. CLARKE: Do you show a second run on May 6th by Erin Riley?
DR. GERDES: No, I don't.
MR. CLARKE: All right. All right. Your Honor, I have two documents I would ask be marked People's next in order.
THE COURT: 575.
MR. CLARKE: Consists of two hybridization records, and I'll have the witness further authenticate it.
(Peo's 575 and 576 for id = two hybrid records)
MR. CLARKE: Dr. Gerdes, would you take a moment to look at those two documents?
MR. CLARKE: Is the Court going to take a break at a particular time?
THE COURT: As soon as you finish.
MR. CLARKE: With this area?
THE COURT: This is a relatively minor point.
MR. CLARKE: I understand.
DR. GERDES: I don't have these particular documents.
MR. CLARKE: All right. Well, perhaps we can just shorten it. Do those appear to be two runs on the same day, one by Erin Riley and one by Collin Yamauchi?
DR. GERDES: They appear to be, but I--these particular cases involve casework, and I believe they weren't--I was not given these.
MR. CLARKE: Well, weren't you allowed to see each of the testings in their books, that is the LAPD books including polymarker as well as casework?
DR. GERDES: Yes. But these were not--they were not provided as part of discovery and there were additional discovery that I obtained.
MR. CLARKE: Weren't you allowed to look at the original records of those?
DR. GERDES: Yes.
MR. CLARKE: I don't have much longer, but I have more than five minutes let's say.
THE COURT: Keep going.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Would it be possible to take a break, your Honor, to collect a few items as well? I assure the Court it will not be lengthy.
THE COURT: How much time do you need?
MR. CLARKE: You mean how much further testimony time? Probably about 10 to 15 minutes, but I need to collect some items if I could.
THE COURT: Okay. All right. Ladies and gentlemen, we're going to take our mid-afternoon recess at this time. Remember all my admonitions to you. And we'll stand in recess until 3:00 o'clock. All right. Dr. Gerdes, you can step down.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Deputy Magnera, let's have the jurors, please. I take it, Mr. Clarke, you have all your exhibits you need to conclude?
MR. CLARKE: Yes.
(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. Dr. Gerdes. All right. Let the record reflect we've been rejoined by all the members of our jury panel. Dr. John Gerdes is again on the witness stand undergoing recross-examination by Mr. Clarke, who is about to conclude his recross-examination.
MR. CLARKE: Thank you, your Honor.
THE COURT: You're welcome.
MR. CLARKE: Dr. Gerdes, just returning, if I could for a few moments, to the area of different levels of DNA in samples. You've described age as a factor that can impact how degraded a DNA sample is, correct?
DR. GERDES: Yes.
MR. CLARKE: That's not the only factor that impacts that, is it?
DR. GERDES: No. There are multiple factors involved.
MR. CLARKE: The substrate, the surface that a stain is on can impact it?
DR. GERDES: That's possible.
MR. CLARKE: The way a sample is packaged let's say after it's collected?
DR. GERDES: That's possible.
MR. CLARKE: Whether the sample is collected in a relatively wetter or drier state impacts that rate of degradation?
DR. GERDES: That's true.
MR. CLARKE: And temperature can impact that rate of degradation as well?
DR. GERDES: True.
MR. CLARKE: So those are a series or at least five or six, four or five or six examples of factors that can affect how a sample degrades and at what rate?
DR. GERDES: Correct.
MR. CLARKE: Now, you've described, Dr. Gerdes, your opinion that 28 percent of the time, that there was a contaminant in your examination of the LAPD PCR typing that was not shown in the negative control?
DR. GERDES: Correct.
MR. CLARKE: Now, that is dependent on how you've used the term "Contaminant" through all of your review of that material, correct?
DR. GERDES: Correct.
MR. CLARKE: That includes dots or reactions from the various types that are less than the C dot, correct?
DR. GERDES: Correct.
MR. CLARKE: And, in fact, from your review of the LAPD, that includes a very large number of samples that in fact had reactions that you classified as a contaminant that were less than the C dot, correct?
DR. GERDES: That's correct.
MR. CLARKE: In fact, that C dot is very important in interpreting results, correct?
DR. GERDES: It's important in interpreting a single sample known to be from a known individual.
MR. CLARKE: Is there any instance in this case in which a dot is called as a genuine result where it's less than the C dot?
DR. GERDES: I don't recall. I think there are some that are very close in terms of my interpretation versus theirs and from looking at the strips.
MR. CLARKE: In this case, as to the results--and I'm sorry. Your answer is, you don't recall, but you think there may have been?
DR. GERDES: I think there may have been.
MR. CLARKE: As far as samples that are called, again, in this case, isn't the fact that reactions are at the C dot or higher very important in determining the accuracy of results?
DR. GERDES: I've expressed my opinion on that.
MR. CLARKE: Well, I'm sorry, Dr. Gerdes. What my question is to you is, isn't it a fact in calling results in this case, whether those results are at or above the C dot is in fact very important in calling DQ-Alpha results?
DR. GERDES: It's important in determining that you have a minimum amount of DNA, yes.
MR. CLARKE: And, in fact, that's just what the user guide recommends, isn't it?
DR. GERDES: Yes.
MR. CLARKE: It's what the package insert, that little insert that comes with the kits recommends also, isn't it?
DR. GERDES: Yes.
MR. CLARKE: And in fact, it's what Gary Sims followed in this case, isn't it?
DR. GERDES: Yes.
MR. CLARKE: What Renee Montgomery followed in this case?
DR. GERDES: Yes.
MR. CLARKE: It's what Robin Cotton and Paula Yates and Julie Cooper followed in this case, correct?
DR. GERDES: Yes.
MR. CLARKE: It's what Collin Yamauchi followed in this case?
DR. GERDES: Yes.
MR. CLARKE: As far as these kits from Roche, you don't have any complaints with Roche about the quality of the kits they manufacture, do you?
DR. GERDES: No.
MR. CLARKE: They manufacture the DQ-Alpha kit?
DR. GERDES: Yes.
MR. CLARKE: The D1S80 kit?
DR. GERDES: Yes.
MR. CLARKE: The polymarker kit?
DR. GERDES: Yes.
MR. CLARKE: And, in fact, you use your own kit for--well, let me rephrase that. You use the Roche manufactured kit to test chlamydia in clinical casework, correct?
DR. GERDES: That's correct.
MR. CLARKE: Now, earlier, you described the fact that in your opinion, contamination at the LAPD was predominately in the reagent extraction controls. Do you recall that?
DR. GERDES: Yes.
MR. CLARKE: And you used the term "At early stages," that is at early stages in the DNA typing process; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Where is that shown--let me rephrase that. As far as contamination shown in the early phases or early stages in this case, where is that shown in the controls that were run in this case?
DR. GERDES: The substrate controls were clean in this particular case.
MR. CLARKE: Well, weren't the other controls negative as well in this case?
DR. GERDES: The two reference samples showed evidence of cross-contamination. Other than that, the other controls were clean.
MR. CLARKE: Reagent blanks?
DR. GERDES: Yes.
MR. CLARKE: Positive amplification controls?
DR. GERDES: Yes.
MR. CLARKE: Negative amplification controls?
DR. GERDES: Yes.
MR. CLARKE: Quality control samples?
DR. GERDES: Yes.
MR. CLARKE: Aren't the fact that those controls all operated properly, isn't that extremely an important fact in evaluating the reliability of the results in this case?
DR. GERDES: In this particular case, you're dealing with very degraded samples and with low levels of DNA. It introduces a new situation in terms of how well those controls would be expected to work as we discussed on direct exam.
MR. CLARKE: But again, isn't the evaluation of all those controls central to interpreting the accuracy of results using any PCR marker?
DR. GERDES: They have a bearing on that, yes.
MR. CLARKE: They have a very important bearing, don't they?
DR. GERDES: Yes.
MR. CLARKE: Now, what you've described earlier this afternoon as substantial errors at the LAPD, was that in reference to the five errors that you allege the LAPD made in typing?
DR. GERDES: Yes.
MR. CLARKE: So that wasn't--your comment about substantial errors wasn't related to anything other than those five alleged errors that were discussed during cross-examination as well, correct?
DR. GERDES: I was referring to the five errors and the fact they have substantial contamination that persists.
MR. CLARKE: It's your opinion that PCR shouldn't be used in forensics at all, correct?
DR. GERDES: Until this problem is solved in terms of getting a handle on working with these types of specimens and the difficulties of the cross-contamination and other kinds of contamination problems, that's my opinion, yes.
MR. CLARKE: Shouldn't be used to include people?
DR. GERDES: That's correct.
MR. CLARKE: Shouldn't be used to exclude people?
DR. GERDES: That's correct.
MR. CLARKE: And, Dr. Gerdes, the opinion you offer about PCR and the fact that in your opinion, it shouldn't be used, you offer that opinion whether or not there are RFLP results based on the same sample?
DR. GERDES: That's correct.
MR. CLARKE: Can I have just a moment, your Honor?
THE COURT: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Thank you. Nothing further, your Honor.
THE COURT: Mr. Scheck.
FURTHER REDIRECT EXAMINATION BY MR. SCHECK
MR. SCHECK: Dr. Gerdes, Mr. Clarke asked you if there were tests that you performed in this case to confirm a hypothesis of cross-contamination. Do you recall that?
DR. GERDES: Yes.
MR. SCHECK: If the Rockingham glove and Bundy blood drops were cross-contaminated in the evidence processing room on June 14th, is there any kind of a test that you can think of that can prove that now?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
DR. GERDES: No. At this point, it's essentially the same DNA. It's been transferred physically, and from that point on, there's nothing you can do, any kind of analysis that would allow you to determine that that's the reason that that DNA is on that sample.
MR. SCHECK: He asked you questions about tests to determine levels of bacterial degradation. Do you recall that?
DR. GERDES: Yes.
MR. SCHECK: Were yield gels done in this case?
DR. GERDES: Yes.
MR. SCHECK: Did Gary Sims render an opinion about what the yield gel showed in this case?
DR. GERDES: Yes.
MR. SCHECK: What do the yield gels tell us about samples 48, 49, 50 and 52?
DR. GERDES: They're degraded, significantly degraded.
MR. SCHECK: By bacteria?
DR. GERDES: By--yes.
MR. SCHECK: The--you were asked questions about the bloodstains on the back gate that were collected on July 3rd versus the Bundy blood drops that were collected on June 13th. Do you recall those?
DR. GERDES: Yes.
MR. SCHECK: Now, is it your understanding that all those samples were originally dry when collected?
DR. GERDES: No.
MR. SCHECK: Well, were the Bundy blood drops dry before they were swatched with wet swatches?
DR. GERDES: No. They were wet.
MR. SCHECK: The back gate, what about that?
DR. GERDES: They--they--I'm not--they presumably were dry.
MR. SCHECK: And if you put once--whether wet or dry, if you swatch the sample with a wet swatch--
DR. GERDES: Yes.
MR. SCHECK: --and put it in a plastic bag, is that what begins the process of degradation?
DR. GERDES: Yes. They're now all wet.
MR. SCHECK: And in terms of these stains on the back gate--you've read the demonstration papers in regard to the effects of environmental conditions?
DR. GERDES: Yes.
MR. SCHECK: On bloodstains?
DR. GERDES: Yes.
MR. SCHECK: In your judgment, are those the rigorous scientific studies?
DR. GERDES: I don't--I'm not convinced they're rigorous, but they deal with the kinds of things that possibly could cause degradation.
MR. SCHECK: But in terms of their demonstrations, do they demonstrate that sunlight on a bloodstain over time causes degradation?
DR. GERDES: Yes.
MR. SCHECK: Does it indicate that exposure to moisture and other environmental insults over time on a bloodstain causes degradation?
DR. GERDES: Yes.
MR. SCHECK: In terms of your microbiology background, would you expect that there would be degradation on stains over time that were exposed to sunlight, moisture and other environmental insults?
DR. GERDES: Yes.
MR. SCHECK: Were--in terms of location, were samples 50 and 117 separated by more than a few feet?
DR. GERDES: They didn't appear to be, no.
MR. SCHECK: Now, you were asked a whole series of questions about the relevance of the C dot. What is your opinion about the relevance of the C dot when interpreting mixtures?
MR. CLARKE: Objection. No foundation.
THE COURT: Sustained.
MR. SCHECK: Well, in terms of a control, when interpreting a DQ-Alpha strip with a mixed sample--withdrawn. Mr. Clarke asked you questions about the C dot being a very important control. Do you recall those?
DR. GERDES: Yes.
MR. SCHECK: And your answer was, it's an important control when you're dealing with a known--one known sample, correct?
DR. GERDES: Correct.
MR. SCHECK: All right. When dealing with a mixture, what is the relevance of the C dot as a control?
DR. GERDES: It simply states that there's enough DNA there to type, but when there's a mixture, you can't interpret how much of that DNA is from the first contributor or individual and how much is from the second. And so the intensity of the dots become irrelevant.
MR. SCHECK: So the intensity--when you're dealing with the mixture, the intensity of dots relative to the C dot, what is the relevance of that in your opinion?
DR. GERDES: It's irrelevant.
MR. SCHECK: Now--and in the user guide, do they say in a mixture, that you should interpret that the same way you interpret a single source sample in relation to the C dot?
DR. GERDES: No. They state you should be extremely cautious when you are dealing with mixtures or--
MR. SCHECK: Not a clean bill of health?
DR. GERDES: That's correct.
MR. SCHECK: You go further in your judgment?
DR. GERDES: Correct.
MR. SCHECK: Without bringing the boards back up again, with respect to the 1.3 dots, the faint 1.3 dots on the Bronco sample, on item 31, and the 1.3 dots on LAPD item 52, does development time as illustrated by those boards, is that a factor in terms of the intensity of the dots?
DR. GERDES: Yes. By developing that longer, the dot becomes more intense.
MR. SCHECK: So what is the window of development length at DOJ?
DR. GERDES: 20 or 30 minutes.
MR. SCHECK: If they develop it longer, the dot becomes more intense?
DR. GERDES: Yes.
MR. SCHECK: Less--shorter period, less intense?
DR. GERDES: Yes.
MR. SCHECK: What about the controls in those samples? What is the purpose of a positive control when running a series of experiments like that?
DR. GERDES: Well, if you have any indication of dots or human DNA or artifacts that shouldn't be there, you can't--you should not interpret that result.
MR. SCHECK: Is the expression in science "Controls failing"?
DR. GERDES: Yes. The controls fail.
MR. SCHECK: If the controls fail, is it scientifically correct in any kind of scientific experiment to call the results?
DR. GERDES: No, it's not correct.
MR. SCHECK: Did the controls fail with respect to item 31?
DR. GERDES: Yes.
MR. SCHECK: Now, I ask that these two documents be marked Defendant's next in order.
THE COURT: 1315.
MR. SCHECK: I'm sorry?
THE COURT: 1315.
MR. SCHECK: 1315 and 1316. Well, actually, your Honor, maybe we can make the first one 1315-A and the other one 1315-B.
THE COURT: Okay.
MR. SCHECK: Thank you.
(Deft's 1315-A and 1315-B for id = documents)
MR. SCHECK: Now, Mr. Clarke handed you some typing sheets from casework that you had never seen before?
DR. GERDES: That's correct.
MR. SCHECK: All right.
THE COURT: I don't think that was the testimony.
MR. SCHECK: Had you ever seen those two sheets before?
DR. GERDES: No. Well, I may have seen them while I was at the laboratory. I didn't have them in my documents here.
MR. SCHECK: Were they produced for you?
DR. GERDES: They were produced for me, yes.
MR. SCHECK: Were those two sheets produced for you initially by LAPD in discovery?
DR. GERDES: They weren't sent to me specifically.
MR. SCHECK: I'm not talking about 1315-A and B.
DR. GERDES: No. I know. I may have seen them at or looked--glanced at them while I was at the laboratory. They were not a document that I requested on discovery. It was not provided to me to look at at a later time.
MR. SCHECK: And were a series of these documents initially provided to you in discovery?
DR. GERDES: Yes.
MR. SCHECK: Now, this is Defendant's 1295. Do those two pieces of paper that Mr. Clarke showed you in any way change your opinion about the level of contamination that you found on runs at the Los Angeles Police Department between May of 1993 and August of 1994?
DR. GERDES: No, they don't. Those were all evidence items and they weren't something I would have considered in the analysis.
MR. SCHECK: Now, putting 1315--what are 1315-A and B?
DR. GERDES: These are two pages that were just provided on discovery. One was discovered with the first batch of discovery and the second was subsequently provided again at a different date.
MR. SCHECK: And what does 1315-A, the one you indicated that was first provided, show?
MR. SCHECK: Please come back.
DR. GERDES: It shows a series of strips and then some of the strips, 1 through 4, have been blocked off. At that time, a number of strips were blocked off like this, and it was explained to me that this is because they were evidence items.
MR. SCHECK: What is 1315-B?
DR. GERDES: This is the same page on a subsequent discovery when--this time, they're not blocked off and the first item is a control swatch.
MR. SCHECK: And what does that show in terms of contamination?
DR. GERDES: It's contaminated with a 4 dot.
MR. SCHECK: Were you dependent upon what was provided to you in terms of the materials about what you got from the LAPD people when you made your request?
DR. GERDES: Yes.
MR. SCHECK: No further questions, your Honor.
THE COURT: Mr. Clarke.
MR. CLARKE: Yes. Could I have just a moment, your Honor?
(Brief pause.)
FURTHER RECROSS-EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Gerdes, with regard to that particular set of samples that you just placed on the board, that involved a control, correct?
DR. GERDES: Yes.
MR. CLARKE: And, in fact, on your chart, you note that control as having what you characterize as a contaminant, correct?
DR. GERDES: Yes. Based on the second batch of discovery that I received.
MR. CLARKE: And that was in January of 1995?
DR. GERDES: I believe so, yes. Well, actually that was--that particular item was mailed to me before that, sometime in December.
MR. CLARKE: Where you were able to see all of the samples?
DR. GERDES: On the second batch, yes.
MR. CLARKE: And that was in January?
DR. GERDES: Either December or January, yes.
MR. CLARKE: So you've had that sample with all of the samples shown for at least seven months?
DR. GERDES: Yes.
MR. CLARKE: And, in fact, both of the charts that you provided to the People both show that particular sample as one of your alleged instances of contamination, correct?
DR. GERDES: Yes. The point is that it was blocked off the first time I received it and only through discovery being able to see all of the unblocked off materials--
MR. CLARKE: Objection. Move to strike. Not responsive.
THE COURT: Sustained. The answer is stricken.
MR. CLARKE: Dr. Gerdes, what I'm asking you is, didn't you have an opportunity to see that at least seven months ago?
DR. GERDES: Yes.
MR. CLARKE: And, in fact, you got to see all of the strips that were in the binders at the LAPD, correct, DQ-Alpha strips?
DR. GERDES: Correct.
MR. CLARKE: You had an opportunity to see the polymarker strips, but elected not to review them; is that right?
DR. GERDES: That's correct. LAPD didn't do polymarker for this case.
MR. CLARKE: But don't those polymarker strips have negative controls also?
DR. GERDES: Yes.
MR. SCHECK: Your Honor, I think this is beyond the scope.
THE COURT: It is.
MR. CLARKE: Now, as far as item no. 117, Dr. Gerdes, you don't know how much was in that sample when it was left there, do you, how much DNA?
DR. GERDES: No.
MR. CLARKE: And, in fact, 117 can be a degraded sample, can't it?
DR. GERDES: According to the check gel, the yield gel, it's not degraded to the degree that the others are.
MR. CLARKE: But it is degraded, isn't it?
DR. GERDES: There's some degree of degradation on any of these samples.
MR. CLARKE: Now, with respect to items 47 through 50 and 52, they were stored in plastic bags, correct?
DR. GERDES: Correct.
MR. CLARKE: They were left in a truck for some time; is that correct?
DR. GERDES: Correct.
MR. CLARKE: And, in fact, they were in a wet state while they were stored in those plastic bags in a truck, correct?
DR. GERDES: Correct.
MR. CLARKE: To your knowledge, did that occur for a number of hours?
DR. GERDES: Yes.
MR. CLARKE: With regard to 117, that's not the same case, is it?
DR. GERDES: I'd--a lot of those details are--I'm not aware of the details on that second set--that second time they did this.
MR. CLARKE: I'd like you to assume hypothetically that when 115, 116 and 117 were collected, they were placed in plastic bags and, in fact, they were recovered from those plastic bags at a time much less than was the case with the Bundy blood drops.
MR. SCHECK: Objection. Based on no evidence in this case.
THE COURT: Vague.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: As far as the time that samples may spend in plastic bags when they're collected, wouldn't it be a factor how many evidence items were collected at the same time, whether it's one or two others or whether it's perhaps 30, 40--30 or 40 other stains. Would that be important in terms of how much time that wet blood spent in a plastic bag?
DR. GERDES: If I understand your question correctly, you're asking me if it would make a difference if there was one swatch or 50 swatches in the same plastic bag, is that what you're saying, as opposed to all in different bags?
MR. CLARKE: No. The actual collection of a number of items so that the evidence collector would have to spend more time in the collection process.
DR. GERDES: In the collection process?
THE COURT: I don't know that this is an appropriate question for Dr. Gerdes.
MR. CLARKE: I'm sorry, your Honor?
THE COURT: I don't know that that's an appropriate question for this witness.
MR. CLARKE: Would you agree that the less time that a particular item spent in a plastic bag in a wet state, the more likely that sample would contain more DNA?
DR. GERDES: That's probably true.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Would you agree that, in fact, that could account for in this case the difference in DNA amounts in 117 versus 47 through 50 and 52?
MR. SCHECK: Objection. Speculation, based on no evidence.
THE COURT: Sustained.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: As far as these number of factors that can account for differences in DNA levels, you would agree, would you not, that the time spent in those bags would be an important factor?
DR. GERDES: It would be one factor that's important, yes.
MR. CLARKE: All right. Thank you. Nothing further, your Honor.
MR. SCHECK: Just briefly.
FURTHER REDIRECT EXAMINATION BY MR. SCHECK
MR. SCHECK: Showing you what's 1165. Mr. Clarke has been asking you if you know the amount of blood to start with on 47, 48, 50, 52, 115, 116, 117, right?
DR. GERDES: Correct.
MR. SCHECK: Does anybody know?
DR. GERDES: Nobody knows.
MR. SCHECK: Is there any test that can tell us exactly how much there was at the beginning?
DR. GERDES: No.
MR. SCHECK: Now, in terms of the amounts of high molecular weight DNA, there's 1165 based on a hypothetical chart, subsequently the bar chart. Does that reflect the comparative amounts of high molecular weight human DNA in the Bundy blood drops as opposed to 117?
DR. GERDES: It does.
MR. SCHECK: Showing 1192-A and B. Let's start with A. Do you recall seeing this chart introduced through the testimony of Gary Sims indicating a comparison of the concentration of 117 compared to the other samples?
DR. GERDES: Yes.
MR. SCHECK: Do you agree with it?
DR. GERDES: Yes.
MR. SCHECK: Does it indicate that 117 is much more concentrated than the other samples?
DR. GERDES: Yes.
MR. SCHECK: Does it indicate 115 and 116 are more concentrated than the other samples?
DR. GERDES: Yes.
MR. SCHECK: Do you know--you were asked about when these bloodstains were deposited on these locations, correct?
DR. GERDES: Correct.
MR. SCHECK: Do you know?
DR. GERDES: No.
MR. CLARKE: Excuse me. Objection. Beyond the scope.
THE COURT: Overruled.
MR. CLARKE: Also misstates the evidence.
THE COURT: It does. It misstates the question.
MR. SCHECK: I'm sorry.
MR. SCHECK: Do you know when bloodstains 115, 116 and 117 were deposited?
DR. GERDES: No.
MR. SCHECK: You don't know if it was after June 13th?
DR. GERDES: That's correct. I don't know that.
MR. SCHECK: And you don't know if it came from blood that contained EDTA?
DR. GERDES: That's true.
MR. SCHECK: Nothing further.
THE COURT: Mr. Clarke.
MR. CLARKE: No further questions, your Honor.
THE COURT: All right. Dr. Gerdes, thank you very much, sir. You may step down.
DR. GERDES: Thank you.
THE COURT: Next witness.
MR. HARMON: Your Honor, may we approach on something regarding the next witness? There's things we have to discuss.
THE COURT: All right. Let me ask the jury to step out just briefly. Should be a short while.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. The record should reflect all the jurors have withdrawn from the courtroom. Who's the next witness?
MR. NEUFELD: Your Honor, the next witness is Dr. Terence Speed.
THE COURT: All right. Mr. Harmon.
MR. HARMON: Yes, your Honor. I tried to bring this up this morning. I just would like the Court to know we have no notes, have no report from Professor Speed, which is not surprising in the way this case--
THE COURT: When you say no notes, what do you mean by that?
MR. HARMON: Notes, n-o-t-e-s, and no report from Professor Speed. So I would like at this point--we seem to have--contrary to what Mr. Cochran said this morning, you know, we're going to get all the notes, Mr. Blasier says we only get notes that we ask for. I would like to ask for whatever notes he has because I'm not sure that's the way you interpret prop 115. Now that he's here and about to testify, it would be nice to have some idea what he was going to talk about.
MR. NEUFELD: Your Honor, there are no notes at all regarding the subject matter of his testimony. As I have already explained to Mr. Harmon, I think it was also mentioned by Mr. Scheck earlier today, he did no calculations at all. He will be testifying broadly in a way that is critical of and contradicts the expert testimony of such witnesses as Robin Cotton and Bruce Weir on statistical issues and he will be speaking in general terms about what's wrong with their testimony as an expert in the field of statistics. There are no calculations that are going to be coming in through this witness. And that's why there's no notes and that's why there's no report.
THE COURT: All right. You know the hazard though of this is that probably what will happen is, you'll finish your direct examination and then we'll have a two-week request for a continuance.
MR. NEUFELD: Well--
THE COURT: --for cross-examination.
MR. HARMON: That's correct, your Honor.
MR. NEUFELD: Well, they may make the request. I think what you'll find, your Honor, based on the testimony of this witness--by the way, as I mentioned Mr. Harmon, I think if we start in oh, in five minutes, there's a chance we might actually finish the entire direct examination today. It's going to be very narrow and very defined.
THE COURT: Well, let's see. Obviously that all depends on what he testifies to.
MR. NEUFELD: Right. And you may find in fact giving them the evening to consider the scope of cross-examination may be more than adequate.
MR. HARMON: Your Honor, I just want to interject something. It's not that we didn't try to avoid this. Professor Speed can attest to this. I sent him a letter as we have sent to other witnesses alerting him that we had no idea what he was going to talk about. He was in the local hotel where all the Defense experts hold up. He sent me a cordial note back saying thanks, but no thanks. And not wanting to be in this situation where I was going to ask you for a continuance so I could effectively cross-examine him, I faxed him every place I could think of--and I haven't gotten a cordial acknowledgment to this one--I said, okay, if you don't want to talk to me, talk to your friend and colleague, Bruce Weir, just so we could avoid exactly what's unavoidable right now. I haven't gotten a response. It would be nice if I had an acknowledgment that he got it at statistics at UC Berkeley or at the local hotel where they all stay. I haven't gotten even that. But we've really tried to avoid this. And I have no idea what he's going to talk about. I have one specific item that I know he is going to talk about that I would like to take up now. So we've really tried to avoid this because we really want to get this case going too. We want to finish this case. But we certainly can't do it when they sandbag us, where they don't even allow us access to have a cordial conversation with people whom they're colleagues with. So that's the reality. We've tried to avoid this. It's unavoidable right now, your Honor.
THE COURT: All right. What's that other area?
MR. HARMON: The other area is the infamous letter that got Mr.--my colleague, Mr. Clarke, here, the black mark. We're going to see it again, and they're going to try to get it in through Professor Speed. And, you know, I think you need to look at this whole packet of letters. This is a packet of signators for which actually there are no signatures. There is the rejection letter from nature which explained why they don't publish letters with all these signatures on it. And then somehow as if this cures all the hearsay, Professor Coyne--
THE COURT: All right. Well, we've already dealt with this issue once before, haven't we?
MR. HARMON: Well, we're going to deal with it again because they think that this August 3rd affidavit from Professor Coyne, whom we'd love to see up in the blue chair, is going to allow Professor Speed to get this letter in. And I just alert the Court that I think we should have some discussions about the propriety of this.
THE COURT: Well, I've already ruled on that letter. So I don't anticipate it.
MR. HARMON: Well, fine. As long as that ruling stands, there's no problem.
MR. NEUFELD: Your Honor, it's my understanding the ruling on the letter in part stems from the fact it couldn't come in through those other witnesses. This is a witness who was actually part of the collection of signatures for the letter. He's not just one of the signators himself. He actually personally collected signatures for it and got--
THE COURT: Well, then perhaps he has the expertise to testify to its contents or the nature of the letter without actually going into the hearsay of the letter itself.
MR. NEUFELD: You mean without--right. I agree with you. I don't--I'm not planning on actually introducing the letter. But I believe that, you know, under 801(B), he is allowed to sort of rely and consider hearsay as part of the basis for his opinion. I do not intend to introduce the piece of paper.
THE COURT: Well, all of that is still subject to 352.
MR. NEUFELD: I understand that also. But I believe, your Honor--
THE COURT: Because I don't want to get into the publication processes and the--all of that kind of stuff, the peer review and all of that.
MR. NEUFELD: I agree.
MR. HARMON: Well, we would like a 402 hearing on whether or not this falls within 802. This thing was never published. I don't think it's too big a guess, he's probably never even seen half the people who have signed this letter and he probably doesn't even know the other half of them, and I think we're entitled to know if they're going to try to funnel this in. Remember now, we've had all these names read off, okay. They just want to plant this in the report.
THE COURT: Well, Mr. Harmon, Mr. Harmon, let's do this. Let's start the direct examination, see how far we get. If we hit this particular point and it seems to be a point in controversy, it could be a big deal based upon the context of his testimony or it could be a very not big deal. I don't know. Let's see.
MR. HARMON: So where do we stand with respect to referring to the letter, your Honor?
THE COURT: When we hit the letter, we'll talk about it. All right. Let's have the jury. If we hit the letter.
MR. NEUFELD: Your Honor, can I pass this up--this is the same package I gave to Mr. Harmon--in case it does come up?
MR. SCHECK: Your Honor, may I approach with Mr. Clarke for just a second?
THE COURT: Does it have to do with this witness?
MR. SCHECK: Next witness. While the jurors are coming in?
(A conference was held at the bench, not reported.)
(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. Mr. Neufeld.
MR. NEUFELD: Thank you.
THE COURT: You may call the next witness.
MR. NEUFELD: At this time, Defense calls Professor Terence Speed.
THE COURT: All right. Dr. Speed.
Terence Speed, called as a witness by the Defendant, was sworn and testified as follows:
THE COURT: Right next to the court reporter there, face the clerk.
THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God?
DR. SPEED: I do.
THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.
DR. SPEED: My name is Terence, T-E-R-E-N-C-E, Paul Speed, S-P-E-E-D.
THE CLERK: Thank you.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
DIRECT EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Well, Professor Speed, you've already given us your name. Where do you live?
DR. SPEED: In Berkeley, California.
MR. NEUFELD: Okay. And could you please tell the ladies and gentlemen of the jury what your occupation is and what positions you hold?
DR. SPEED: Umm, I'm a professor of statistics, the University of California at Berkeley.
MR. NEUFELD: And could you, please, for the ladies and gentlemen of the jury summarize your education?
DR. SPEED: I received a bachelor's degree in science majoring in mathematics and statistics at a University in Melbourne, Australia, and later a Ph.D. majoring in mathematics at another university, Monish University also in Australia.
MR. NEUFELD: And could you also summarize your professional appointments since the time you received your Ph.D.?
DR. SPEED: Okay. After I got my Ph.D., I went to the United Kingdom, worked for about four years at the University of Sheffield. And I went back to Australia, worked for nine years as a professor in mathematics at the University of Western Australia. Then I left academia for a few weeks and had a job in a government laboratory as chief of a group of mathematicians and statisticians, and that was about eight years ago. I left there and went to the University of California, Berkeley, where I've been ever since.
MR. NEUFELD: Now--one moment. Let's back up a second. You said that you taught at the University of Western Australia?
DR. SPEED: That's correct.
MR. NEUFELD: And while you were at the University of Western Australia, did you have a particular title at some point during that time?
DR. SPEED: Yes. Towards the end of my period there, I was chair of the department of mathematics.
MR. NEUFELD: And you also mentioned, sir, that--excuse me--Professor, that you took some time off and you worked for something called the division of mathematics and statistics?
DR. SPEED: Right. That's--
MR. NEUFELD: Could you explain what that is?
DR. SPEED: That's a division of an organization with a very long title which I'll give, commonwealth scientific and industrial research organization, which is a very large multi-disciplinary organization spread all around Australia, doing research in those areas, and I had a division of mathematics and statistics with about a hundred mathematicians and statisticians again located all around Australia, and I was the chief of that group.
MR. NEUFELD: You weren't something one of the hundred in that department. You were actually the chief of it?
DR. SPEED: That's correct.
MR. NEUFELD: Okay. And you mentioned that currently you are a Professor at the University of California at Berkeley. Is that referred to as Cal or Berkeley? What's the easiest way for me to refer to it for the future so I can defer? Is it Cal?
DR. SPEED: UC Berkeley. It's pretty brief.
MR. NEUFELD: Okay. All right. During the time that you were at the University of California at Berkeley in the statistics department, were you ever made the chairman of that department?
DR. SPEED: Yeah. I was chair for four years, 1989 to `93, and then I went on a sabbatical and gave up the chair.
MR. NEUFELD: Could you tell the jury and myself and other counsel in the court, what is statistics?
DR. SPEED: Well, a one-line definition might be something like this. That is the use of numerical information or it's the art and science of using numerical information to answer questions of interest to people.
MR. NEUFELD: Can you give us some examples of statistics?
DR. SPEED: Yeah. One example might be, why does the casino always win at roulette? Another one might be, how do I design an experiment to test whether a new drug or a new medical treatment is better or not better than an existing one? A third one might be, how do we design sampling procedures so we can predict the outcome of something like an election with a very, very small number of people, just a few thousand out of a country the size of the United States.
MR. NEUFELD: Can you give us some--I'm sorry. Are you aware of any examples of where good statistics are used to overthrow the--some accepted, but nevertheless erroneous view?
DR. SPEED: Certainly. There's lots in the medical area where new medical techniques and in former days, new drugs, became available, and without proper testing, were found by the proponents to be effective. Yet, when well-designed statistically valid studies were conducted, they were found to be ineffective. So it's now quite commonly used to screen drugs, not quite as commonly used to screen surgical procedures and other medical inventions.
MR. NEUFELD: All right. Are you a member of any professional organizations within the field of statistics?
DR. SPEED: Yeah. Lots.
MR. NEUFELD: Okay. Are any of those--why don't you summarize if you could.
DR. SPEED: Well, I'm a member of statistical societies, the major ones in the United States, which are the American Statistical Association and the Institute of Mathematical Statistics, remain active in the Australian Statistical Society and one in the United Kingdom and another one, the Biometric Society.
MR. NEUFELD: You mentioned the Institute of Mathematical Statistics. What is that?
DR. SPEED: Well, that's the professional organization of people with a somewhat more theoretical vent, mathematical statistics, rather than just statistics.
MR. NEUFELD: And have you been elected to any executive body in that organization?
DR. SPEED: Yeah. I'm a member of the council of that body.
MR. NEUFELD: Is that the governing council?
DR. SPEED: Yeah.
MR. NEUFELD: And you also mentioned that you were a member of the Biometric Society. What is the Biometric Society, Professor?
DR. SPEED: Well, that's the society of people who are interested in applying statistics to biology and medicine.
MR. NEUFELD: And have you held any office in that organization?
DR. SPEED: Yeah. I've had the presidency of one of the regions. The--that's a worldwide society which is divided up I think into about 10 regions, and for a period a few years ago, I was the president of one of the regions.
MR. NEUFELD: And by the way, the Biometric Society which you said is involved in the interface of statistics and biology and medicine, does it also involve the application of statistics to genetics?
DR. SPEED: Certainly.
MR. NEUFELD: And by genetics, I mean, does it also involve the application of statistics to DNA typing?
DR. SPEED: Yeah. I think genetics these days includes molecular genetics, which is pretty much things related to DNA.
MR. NEUFELD: And are you also a member of the triple AS?
DR. SPEED: That's correct.
MR. NEUFELD: And what does that stand for, sir?
DR. SPEED: That's the American Association for the Advancement of Science.
MR. NEUFELD: And do you have any particular status in that organization?
DR. SPEED: Well, I have been elected to a fellowship of that organization.
MR. NEUFELD: So is that an organization anyone can just join or does it require an election?
DR. SPEED: Anyone can just join, but you have to be elected to be a fellow.
MR. NEUFELD: Now, are you a currently--are you currently a member of any advisory body which focuses on human genetics research?
DR. SPEED: Yeah. I'm a member of the--what's called the human geno study group formed by the national institutes of health.
MR. NEUFELD: Could you please tell us what that is, sir?
DR. SPEED: Well, as people may know, there is a thing going on these days called the human geno project, which is a very detailed study of DNA in a typical human, and there's a whole institute of the national institutes of health divided to research and promoting the broad study of that area; and they give away many millions of dollars each year to researchers around the world, but mainly in the United States, and the greatest--or the proposals that come in are assessed by a study group of which I am a member.
MR. NEUFELD: Now, other than your appointments in these various organizations, Professor, have you served on the editorial boards of any peer review journals in your field?
DR. SPEED: Yeah. I've served on the editorial board of most of the major journals in my field, although right now I'm only--I've got off most of them recently and I'm on only one at the moment.
MR. NEUFELD: And aside from your editorial appointments, Professor, have you authored any technical papers in the field of statistics?
DR. SPEED: Yes, I have.
MR. NEUFELD: Approximately how many?
DR. SPEED: I think it's, you know, about a hundred, 120. I'd have to just have a glance. Yeah. I think up to about 120.
MR. NEUFELD: Could you please tell us a little bit what these papers are about and how they've evolved over the years?
DR. SPEED: Well, shortly after I did my Ph.D., most of them were somewhat theoretical in nature, but over the last decade or so, I've got increasingly involved in the application of statistics to a variety of disciplines, but primarily biology and more recently genetics.
MR. NEUFELD: And even before you became involved in the field of probabilities in genetics and in DNA typing, were you involved--did you--I'm sorry--did you write a paper on nuclear reactor accidents?
DR. SPEED: I did.
MR. NEUFELD: And did that paper involve the likelihood that certain errors can occur which can cause a nuclear mishap?
DR. SPEED: Yes. That was--it was a critique of a big study conducted by what is now called the nuclear regulatory commission to try to find the accident--the probability of risks of an accident from a commercial nuclear reactor.
MR. NEUFELD: And in your opinion, was your work on that paper at all related to any of the issues that you're going to be testifying to today?
DR. SPEED: Well, in the general sense that that paper was a critique of the statistics that was used in that study. I was very critical of the study because in my view, it misused statistics quite badly, and to some extent, there was an element of that in the use of statistics in DNA profiling. To that extension, there's a similarity.
MR. NEUFELD: Over the last four or five years, approximately how many articles have you authored on the application of statistics to genetics?
DR. SPEED: I think it would be about 20.
MR. NEUFELD: Now, you're not a forensic scientist, are you?
DR. SPEED: I am not.
MR. NEUFELD: Do you believe you need to be a forensic scientist before you can give an expert opinion on the application of statistics to forensic DNA profiling?
DR. SPEED: I certainly hope not, because if that were the case, you would have to be professional in any discipline to which statistics was applied before you could come forward, and that's not the way things work.
MR. NEUFELD: How do things work, doctor?
DR. SPEED: Well, if a statistician is going to make comments on the use of statistics in another discipline, then obviously they need to be familiar to some extent with that other discipline and, in particular, to be able to appreciate the way statistics is being used. They certainly don't have to be professionals in that discipline. If they were, they wouldn't be statisticians.
MR. NEUFELD: Now, how did you become interested in the application of statistics to forensic DNA profiling?
DR. SPEED: Well, the interest in statistics and genetics is long-standing, and I think it was around 1990, there was a one-day symposium on actually that topic, statistics in DNA identification done here in L.A., and I and a few students came down and attended it and we got our first taste of the subject.
MR. NEUFELD: As a result of that first taste on the subject five years ago, did you continue to do reading and thinking and participating in scholarly discussion about that subject?
DR. SPEED: Yes, I did.
MR. NEUFELD: Have you been asked at any time during the last five years to actually become involved in criminal cases involving the application of statistics to forensic DNA profiling?
DR. SPEED: Yes, I have.
MR. NEUFELD: And approximately how many times have you become involved in cases of that nature other than this case?
DR. SPEED: Twice.
MR. NEUFELD: And in those two cases where you became involved, did you consult for the Defense or the Prosecution?
DR. SPEED: Both cases involved public defender.
MR. NEUFELD: And in both of those cases, sir, did you charge a fee for your expert work?
DR. SPEED: No, I didn't.
MR. NEUFELD: So in neither of them, did you charge a fee?
DR. SPEED: That's correct.
MR. NEUFELD: Okay. And in the course of working on those cases, did you have an opportunity to review database autorads produced by a DNA laboratory?
DR. SPEED: I did.
MR. NEUFELD: Which laboratory was that?
DR. SPEED: Well, we made a visit to Quantico, which is where the FBI research, DNA research operation is based.
MR. NEUFELD: Now, in addition to those two cases that you were involved in, have you remained interested in the issue?
DR. SPEED: Yes. I certainly have.
MR. NEUFELD: Have you organized and/or attended any statistics--statistics conference sessions devoted to the forensic issues?
DR. SPEED: Yes, I have.
MR. NEUFELD: By the way, have you ever been approached by law enforcement to become involved in this issue to assist the Prosecution?
DR. SPEED: I have.
MR. NEUFELD: And when was that and where was that, Professor?
DR. SPEED: I think it was about spring 1993, I got a call from the people at the Berkeley lab, which is referred to here as DOJ.
MR. NEUFELD: Would that be the same laboratory that Gary Sims works at?
DR. SPEED: Yes.
MR. NEUFELD: Okay. And could you please tell us what happened?
DR. SPEED: Well, I was just invited to come and look around the lab and chat with people because they had heard, presumably through my involvement with these cases, that I'm interested in the subject. So we--I looked around and we exchanged views.
MR. NEUFELD: And at that time with that meeting at the Department of Justice laboratory, did you share your thoughts and criticisms of the statistical applications being used at the laboratory?
DR. SPEED: Yeah, I did. I got the impression that they would have liked me to--
MR. HARMON: Objection. Nonresponsive.
THE COURT: Sustained.
MR. NEUFELD: Now, aside from that experience you had at the DOJ laboratory when they invited you there to view their laboratory work and then to discuss these issues with them, have you ever on any other occasion assisted law enforcement?
DR. SPEED: Yes.
MR. NEUFELD: And could you please tell us when that was?
DR. SPEED: Uh, I think it was early 1993, I was approached by people from--well, they were based in the Alameda County District Attorney's office, but one of the people was a federal Prosecutor I believe.
MR. NEUFELD: And to your knowledge by the way, Professor Speed, is Mr. Harmon here a member of the Alameda County District Attorney's office?
DR. SPEED: I believe so.
MR. NEUFELD: Okay. Please go ahead, sir.
DR. SPEED: Well, they were working on a case involving the possibility of the sale of contaminated meat in a supermarket chain, that being quite a number of tests proved to be positive for contamination, and I wanted to organize a sampling plan to see if this was systematic and not just occasional contamination.
MR. NEUFELD: And so did law enforcement at that time use your expertise in the field of statistics to help them design the appropriate study for the Prosecution?
DR. SPEED: They did.
MR. NEUFELD: By the way, when you did that work for the Alameda County District Attorney's office back in 1993, did you--were you--did you personally receive any compensation for that work?
DR. SPEED: No.
MR. NEUFELD: Would I be correct in saying, Professor, that this is actually though your first time testifying in a court of law on the forensic application of DNA?
DR. SPEED: That's correct.
MR. NEUFELD: Are you a little bit nervous? No? Okay. Now, you mentioned that in the two times where you assisted the Defense, that you didn't charge any compensation and you mentioned at the time you assisted the Prosecution in their case, that you didn't charge any fee as well. In this case, are you accepting any fee, any money at all in exchange for your time and your expertise and your testimony?
DR. SPEED: No.
MR. NEUFELD: Now, Professor, are you familiar with Dr. Bruce Weir, who testified in this case as a Prosecution witness?
DR. SPEED: I am.
MR. NEUFELD: Has Dr. Weir ever sought your input on his writing on statistical applications of forensic DNA issues?
DR. SPEED: Yeah, he has.
MR. NEUFELD: Now, Dr. Weir testified that he had no background in forensic science and no training in forensic science. Do you have any training at all in that area?
DR. SPEED: No.
MR. NEUFELD: After you became involved in this case, Professor, did you review any of the testimony of different witnesses?
DR. SPEED: I did.
MR. NEUFELD: And which testimony have you reviewed?
DR. SPEED: I've reviewed Dr. Weir's, I've reviewed Mr. Sims', I've reviewed Dr. Cotton's and I've seen some of the testimony from the LAPD of Mr. Yamauchi. So--
MR. NEUFELD: Have you also--are you also familiar with the testimony that Dr. Gerdes gave during the last several days?
DR. SPEED: Yes. I've been watching and I've been present for some of it.
MR. NEUFELD: Have you reviewed any of the open proficiency test data that these laboratories talked about?
DR. SPEED: I have.
MR. NEUFELD: Have you reviewed Dr. Weir's report and the calculations contained therein?
DR. SPEED: Yes.
MR. NEUFELD: By the way, Professor, have you written a report for this case?
DR. SPEED: I have not.
MR. NEUFELD: Have you been asked to make any calculations in regard to this case?
DR. SPEED: No.
MR. NEUFELD: Now, other than reviewing the materials that you described, have you met with the lawyers to discuss these issues?
DR. SPEED: I have.
MR. NEUFELD: On a number of occasions?
DR. SPEED: Yeah. On three occasions I think, three or four over several months.
MR. NEUFELD: And what, if anything else, have you done to prepare yourself for your testimony today?
DR. SPEED: Well, basically read lots and lots of stuff, talk to people and think about it.
MR. NEUFELD: As an expert in the field of statistics, Professor, is it the case that sometimes people misinterpret the meaning of a statistical statement?
DR. SPEED: I think that's very frequent.
MR. NEUFELD: How does it happen or can you give examples of it?
DR. SPEED: Well, I think when people make statements, particularly statements about probabilities or frequencies, it's often unclear just what is the event, the precise event, whose probability or whose frequency is being spoken of. It's also often clear what is the assumptions under which this calculation is being made, and how the calculation is being made is also relevant, and that's very rarely something people know.
MR. NEUFELD: Professor, have you seen small Xerox copies of the various evidence boards that have been prepared by the Prosecution? And I'll just use this as--for illustrative purposes, the--
THE COURT: It's the Bronco result board.
MR. NEUFELD: Yeah. Just put it up for a second. And I put up the People's item no. 260.
MR. NEUFELD: Okay. Have you seen reduced Xerox copies of this board?
DR. SPEED: Yes.
MR. NEUFELD: Okay. And have you also seen reduced Xerox copies of the other boards for Rockingham DNA profiling, Bundy DNA profiling and the glove DNA profiling?
DR. SPEED: Yeah. I have them.
MR. NEUFELD: Now, let me ask you this apropos of what you just said, sir, about the meaning of statistical statements. For instance, are the frequencies reflected on the last column on these evidence boards, are they the probability of Mr. Simpson's guilt or innocence?
DR. SPEED: No, they're not.
MR. NEUFELD: Are the frequencies on these evidence boards the probability that someone other than Mr. Simpson is the source of any particular stain?
DR. SPEED: No, they're not.
MR. NEUFELD: What do these numbers tell the jury about the probability of a false or misleading match being reported due to errors in the collection and handling of samples?
DR. SPEED: Nothing.
MR. NEUFELD: What do these numbers tell us about the probability of a false or misleading--I'm sorry. What do these numbers tell us about the probability of a false or misleading match being reported due to evidence tampering?
DR. SPEED: Nothing.
MR. NEUFELD: Are these numbers on the boards relevant if the matches are determined to be due to cross-contamination?
DR. SPEED: If the match has been determined to be, then no. Not relevant at all.
MR. NEUFELD: Now, are you familiar, sir, with Dr. Robin Cotton's testimony about her reporting of how Cellmark did on the California Association open proficiency testing? Do you recall that?
DR. SPEED: I do.
MR. NEUFELD: And do you recall when she testified that with respect to one of the batches of 50 samples that they received, that--there was a match that she gave as a--gave a frequency for of 1 in 1.8 billion? Do you remember that?
DR. SPEED: I do.
MR. NEUFELD: And do you remember her testimony when she said that later on, the submitting agency told her that they had a false positive? Do you recall that, sir?
DR. SPEED: I do.
MR. NEUFELD: And do you recall her then saying that having learned that it was a false positive, that the statistic of 1 in 1.8 billion was irrelevant? Do you remember that?
DR. SPEED: I do.
MR. NEUFELD: And do you agree with that?
DR. SPEED: I do, yes.
MR. NEUFELD: Now, what, if anything, do these frequencies tell us about the probability that swatches were mixed up at the Los Angeles Police Department?
DR. SPEED: They tell you nothing.
MR. NEUFELD: I can put this down now.
THE COURT: Why don't you let Mr. Harris handle it.
MR. NEUFELD: Thanks. Sorry.
MR. NEUFELD: Now, Professor, Dr. Cotton, Mr. Sims and Dr. Weir have each given their own opinion as to how rare particular DNA profiles are in this case. Are you familiar with their testimony?
DR. SPEED: Yes.
MR. NEUFELD: In order to assess the evidentiary significance of these DNA typings, are there other frequencies that are also important?
DR. SPEED: I believe so.
MR. NEUFELD: And I think you said that you're also familiar with the testimony of Dr. Gerdes regarding the various opportunities to err in this case?
DR. SPEED: I am, yes.
MR. NEUFELD: Now, when you're thinking about the other frequencies which would also be important to consider, is it also too important--I'm sorry--is it also important from a statistical standpoint to consider the chance that the reported matches are the result of error in crime scene collection and packaging?
DR. SPEED: I believe so.
MR. NEUFELD: Is it important to consider from a statistical standpoint the chance that the reported matches are the result of error when the evidence is unpacked at the Los Angeles Police Department?
DR. SPEED: Yes.
MR. NEUFELD: Is it important to consider from a statistical standpoint the chance that the reported matches are the result of error when the evidence is put into bindles on the next morning?
DR. SPEED: Yes.
MR. NEUFELD: Is it important from a statistical standpoint to consider the chance that the reported matches are the result of error when the Bundy drops and Mr. Simpson's reference sample are processed by Mr. Yamauchi?
MR. HARMON: Objection. Leading, argumentative.
THE COURT: Leading.
MR. NEUFELD: What, sir, would be the importance--well, is there any importance at all to--from a statistical standpoint to assessing the chance that reported matches are the result of error when the Bundy drops and Mr. Simpson's reference sample are processed by Mr. Yamauchi at the LAPD?
MR. HARMON: Objection. Leading.
THE COURT: Overruled.
DR. SPEED: Yes. All stages in the process are relevant to assessing this chance.
MR. NEUFELD: Now, again, from a statistical standpoint, is it important to consider the chance that the reported matches are the result of error in the DNA testing laboratory, for instance?
DR. SPEED: Yes.
MR. NEUFELD: Is it also important to consider the chance that a reported match is a true match, but that the source is someone other than Mr. Simpson, but someone who has the same DNA profile of him at the loci that had been studied?
MR. HARMON: Objection. Compound, leading.
THE COURT: Compound. Rephrase the question.
MR. NEUFELD: Okay. From a statistical standpoint, is it important to consider the chance that a reported match is a true match?
DR. SPEED: Yes.
MR. NEUFELD: Okay. And is it important to consider that--from a statistical standpoint, that the source of that match is someone other than Mr. Simpson, but that someone is simply someone who has the same DNA profile as Mr. Simpson?
DR. SPEED: Yes. That's a fact that's true.
MR. NEUFELD: And in fact, Professor, in response to that last question, that the Prosecution experts listed those frequencies in the final column of those various boards?
MR. HARMON: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Well, do the frequencies on those boards address that last question?
DR. SPEED: Yes. As far as I can see, that's the only question that those frequencies speak to.
MR. NEUFELD: From a statistical standpoint, Professor, is it important to consider the chance that it may really be Mr. Simpson's blood, but that the drops were left by Mr. Simpson at some earlier date?
MR. HARMON: Objection. That's vague as to which drops.
THE COURT: Sustained.
MR. NEUFELD: Okay. From a statistical standpoint, if you were to consider simply for the purpose of this question, the Bundy--the Bundy drops on the walkway, sir, would it be important to consider the chance that it may really be Mr. Simpson's blood on that walkway, but that those drops were left by Mr. Simpson at an earlier date?
MR. HARMON: Objection. That's calls for speculation, that you can quantify that.
THE COURT: Sustained.
MR. NEUFELD: From a statistical standpoint, is it important to consider the chance of various alternative hypotheses to explain certain data?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Overruled.
DR. SPEED: Yes.
MR. NEUFELD: And is that something that is within the field of statistics?
DR. SPEED: I believe so.
MR. NEUFELD: Okay. Are you familiar with Dr. Weir's testimony where he said that all of his calculations assume the validity of all the DNA testing done in this case?
DR. SPEED: Yes.
MR. NEUFELD: From a statistical standpoint, is Dr. Weir's assumption scientifically appropriate in your opinion?
DR. SPEED: I don't believe so.
MR. NEUFELD: And why not?
DR. SPEED: Well, I believe that the possibility of errors can never be ruled out and, therefore, there is an incompleteness in any evaluation that is based on the assumption that no errors could have happened.
MR. NEUFELD: Now, Professor, are these views criticizing Dr. Weir's position just yours or have you considered the opinions of other experts in reaching your conclusions on this point?
MR. HARMON: Objection. Calls for speculation, hearsay, no foundation.
THE COURT: Foundation.
MR. NEUFELD: All right. In reaching your opinion that you just gave about Dr. Weir's conclusion, did you consider the report issued by the national research council of the national academy of science?
DR. SPEED: I did.
MR. NEUFELD: And which portions--
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: By the way, Professor, are you aware of the views of other experts in your field on this particular issue that I just addressed?
DR. SPEED: I certainly am, yeah.
MR. NEUFELD: And have you considered the views of other experts in helping to reach your opinion that you're providing this jury with today on the witness stand?
DR. SPEED: I have.
MR. NEUFELD: And I believe you said that one source that you have considered in giving your testimony today are the conclusions of the national research council, the national academy of science; is that correct?
DR. SPEED: That's correct.
MR. NEUFELD: And could you please tell us which portions of this book, of this report that you considered in helping to frame your position on the witness stand today?
DR. SPEED: Well, I've read--you mean the actual pages?
MR. NEUFELD: Well, could you please tell us the first--can you give us a page reference, please?
DR. SPEED: Well, perhaps I'll start with the very first one, which is a page that doesn't actually have a number. That is opposite the contents page. It's a discussion there of errors.
THE COURT: Mr. Neufeld, let's do this by question and answer rather than having the doctor read it from the book.
MR. NEUFELD: Okay.
MR. NEUFELD: All right. Professor, could you turn to page 160 first. In reaching your opinions as an expert on these issues involving the statistical applications to forensic DNA profiling, have you considered the following quote? Reading from the bottom of page 160. Quote--
MR. HARMON: Well, your Honor, I don't think it's appropriate. If he says no, then the content of that's not--
THE COURT: Sustained.
MR. NEUFELD: All right. Would you please look at the paragraph beginning at the bottom of page 160 and ending at the top of 161.
DR. SPEED: Yes.
MR. NEUFELD: Is that one of the quotes that you have considered and taken into account in helping to develop your opinion that you're giving on the witness stand today?
DR. SPEED: It certainly is.
MR. NEUFELD: May I now? Thank you.
MR. NEUFELD: And I'm quoting now from the NRC report at the bottom of page 160. Quote: "Expectations regarding the parallel of DNA typing can lead to overlooking or ignoring sources of error or mistakes in applying the technology. For example, jurors focusing on the probability of correctly identifying a perpetrator might lead them to discount the possibility of laboratory error, whether it stems from incompetence or carelessness of personnel, malfunctioning equipment or unavoidable mistakes." Did I read that accurately?
DR. SPEED: I believe so.
MR. NEUFELD: Okay. Sir, what is the meaning of that quote?
DR. SPEED: Well, I think it says that you should be conscious not just of the frequencies of the particular multilocus genotypes that are quoted, but also be aware of the possibility of errors in the--of the kinds that have been stated and the frequencies with which these errors might occur and contribute to a wrongful result.
MR. NEUFELD: Would you please put up slide 1.
MR. NEUFELD: Now, referring you specifically to different sections of this report, have you considered--I'm sorry. You began to say before that you considered the--a portion of the preface or prefatory language?
DR. SPEED: Yes.
MR. NEUFELD: Now, I call your attention, sir, to the page directly preceding the table of contents.
DR. SPEED: I have it.
MR. NEUFELD: In the third paragraph, did you consider--in helping to develop your own opinion on these matters, consider that first sentence in the third paragraph?
DR. SPEED: I did.
MR. NEUFELD: Would you please put up slide 2.
MR. NEUFELD: Now, sir--and can you see it from where you're sitting?
DR. SPEED: I can.
MR. NEUFELD: Okay.
THE COURT: Excuse me, doctor. If you look, there's a monitor right to your right.
DR. SPEED: Oh, thanks.
THE COURT: Avoid neck strain.
MR. NEUFELD: Now, the report says that, quote: "We regard the accreditation and proficiency testing of DNA typing laboratories as essential to the scientific accuracy, reliability and acceptability of DNA typing evidence in the future." By the way, do you know when the--this report was published?
DR. SPEED: I believe it was April 1992.
MR. NEUFELD: Okay. And, sir, could you please explain what is meant by that statement?
DR. SPEED: Well, that the authors of the report think it important that agencies that do DNA testing get accredited and participate in proficiency testing. Otherwise, the scientific accuracy, reliability and acceptability might be compromised.
MR. NEUFELD: Have you also considered the language that appears on page 88?
DR. SPEED: Yes.
MR. NEUFELD: And the specific portion that I'm referring to--one moment--beginning with the second paragraph on the page.
DR. SPEED: Yep.
MR. NEUFELD: And is that one of the portions of this report that you have considered in reaching your opinions today on the witness stand?
DR. SPEED: I certainly have.
MR. NEUFELD: Could you please put up slide 4.
MR. NEUFELD: Okay. Now, I'm going to ask you if you agree with the following quote from the NRC report. "Interpretation of DNA typing results depends not only on population genetics, but also on laboratory error. Two samples might show the same DNA pattern for two reasons: Two persons have the same genotype at the loci studied or the laboratory has made an error in sample handling procedure or interpretation. Coincidental identity and laboratory error are different phenomena. So the two cannot and should not be combined in a single estimate. However, both should be considered." What are the authors saying at this point, Professor?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained.
MR. NEUFELD: Well, how does this quote affect your own opinion on this particular issue?
DR. SPEED: Well, it states very strongly that in addition to the frequencies that are associated with coincidental match, there should be some estimate of frequency of errors, the different kinds.
MR. NEUFELD: And why is that?
DR. SPEED: Because both can contribute to an incorrect conclusion about the source of a DNA profile or the source of a stain.
MR. NEUFELD: Now, sir, in addition to that paragraph, paragraph on page 88, did you also--can I call your attention to page 89? And I call your attention to the first paragraph. Is that a paragraph or portion of this report that you have considered in the development of your own opinions that you're giving on the witness stand today?
DR. SPEED: Yes.
MR. NEUFELD: Okay.
MR. NEUFELD: Could you please put up slide 5.
MR. NEUFELD: I'm quoting from page 89: "Especially for a technology with high--" I'm sorry. "Especially for a technology with high discriminatory power such as DNA typing, laboratory error rates must be continually estimated in blind proficiency testing and must be disclosed to juries. For example, suppose the spans of a match due to two persons having the same pattern were 1 in 1 million, but the laboratory had made one error in 500 tests. The jury should be told both results. Both facts are relevant to a jury's determination." In your opinion, sir, are both facts relevant to a jury's determination?
DR. SPEED: I believe so.
MR. NEUFELD: And why is that?
DR. SPEED: Because, as I said earlier, there are two different ways in which incorrect conclusions can be reached. One is a chance coincidental match and the other is that the result could be as a result of laboratory error.
MR. NEUFELD: And, sir, again, in helping to develop your opinions of this particular matter, did you also consider page 15?
DR. SPEED: Yes, I did.
MR. NEUFELD: And I'm referring specifically to the second paragraph on the page.
DR. SPEED: Yes.
MR. NEUFELD: Could you please put up slide 3.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Your Honor, before we go any further, I have been reminded by Mr. Cochran that I did not ask for a number for this for the next in order. It's my recollection that this exhibit was shown to someone else.
THE COURT: You're actually reading this into the record. So it's in the record.
MR. HARMON: May we approach, your Honor, because I think Mr. Neufeld has spoken some interesting words. May we approach, your Honor?
THE COURT: No.
MR. HARMON: Well, I'd like to discuss what he just said and what he told me before we started, your Honor.
THE COURT: At a later point. Proceed.
MR. HARMON: Reading from page--
MR. HARMON: Have these previously been marked, your Honor?
THE COURT: No, they have not. You want to mark it as an exhibit, continuing exhibit?
MR. NEUFELD: We can mark it as an exhibit.
MR. HARMON: Your Honor, may we approach?
THE COURT: No. Proceed.
MR. NEUFELD: Referring you now to page 15, and I quote from the section. It says: "Laboratory error rates should be measured with appropriate proficiency tests and should play a role in the interpretation of results of forensic DNA typing." Do you agree with that statement?
DR. SPEED: I do.
MR. NEUFELD: And what does that statement mean to you?
DR. SPEED: It means that there should be appropriate proficiency tests where appropriate remains to be defined for establishing laboratory error rates which then should be available for interpreting the results of forensic DNA testing.
MR. NEUFELD: And, sir, finally, referring you to page 89--
MR. NEUFELD: One moment.
(Brief pause.)
MR. NEUFELD: Referring you now to the third paragraph on the page, have you considered that portion of the report also of the national research counsel in helping you develop your own opinion on these matters?
DR. SPEED: I have.
MR. NEUFELD: And now with the Court's permission, I'll put up slide 6, please.
MR. NEUFELD: And again, Professor, I'm quoting from the national research council's report, page 89, where it states, quote: "Reported error rates should be based on proficiency tests that are truly representative of case materials with respect to sample quality, accompanying description, et cetera." What does that--first of all, do you agree with that?
DR. SPEED: I do.
MR. NEUFELD: And what does it mean to you, sir?
DR. SPEED: Well, it means that the reported or the error rates that should be reported should be based on proficiency tests which are in as many ways as possible similar to actual cases.
MR. NEUFELD: For instance, in this case, have you heard testimony that samples were degraded?
DR. SPEED: I have.
MR. NEUFELD: And you've also reviewed the testimony of Dr. Cotton and Mr. Sims; have you not?
DR. SPEED: I have.
MR. NEUFELD: And also of Collin Yamauchi with respect to proficiency testing that they've had at their three laboratories?
DR. SPEED: I have.
MR. NEUFELD: When they describe the type of proficiency tests that they had, did they state that they were using samples that were representative of casework?
DR. SPEED: No. Not in my opinion.
MR. NEUFELD: Okay. Did they--in any way, did they acknowledge--
MR. HARMON: Objection. No foundation for his opinion on that. Move to strike.
THE COURT: Overruled. Foundation though.
MR. NEUFELD: Are you familiar with the testimony of Dr. Cotton, Mr. Sims and Mr. Yamauchi that they did not have degraded samples in their proficiency tests?
DR. SPEED: I am.
MR. HARMON: Objection. Calls for hearsay, no foundation.
THE COURT: Sustained. Answer is stricken.
MR. NEUFELD: Your Honor, I have the page citations.
THE COURT: Proceed.
MR. NEUFELD: All right.
MR. NEUFELD: Does the NRC report declare elsewhere the necessity of relying on external blind proficiency testing?
DR. SPEED: They do.
MR. HARMON: Objection. That calls for hearsay, your Honor.
THE COURT: Overruled.
MR. NEUFELD: I call your attention to page 106 and 107 of the NRC report.
THE COURT: Aren't we getting redundant at this point?
MR. NEUFELD: This is the last one, your Honor, and I'm out of the report.
MR. NEUFELD: Do you agree, sir, with the statements expressed by the authors of the NRC report contained at the bottom of page 106 and the top of 107?
DR. SPEED: I do.
MR. NEUFELD: And in those statements, sir, does it talk about the necessity of external blind proficiency testing?
DR. SPEED: It does.
MR. NEUFELD: Oh, by the way, from a statistical standpoint, Professor, why is it necessary that laboratory error rates be calculated on the basis of external blind proficiency tests administered on a continuing basis?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Overruled.
MR. NEUFELD: Well, let's start at the beginning. Why is it--I'm sorry. Why is it essential that they be external proficiency tests?
DR. SPEED: Well, I think that's so that the tests will have credibility, so that there will be uniformity in their application, so that the results can be widely disseminated and also, in fact, so that they can be fully blind. It's rather hard to imagine blind in the sense that we're talking about, tests which are internal.
MR. NEUFELD: Okay. And by the way, does the NRC report define what they mean by "Blind external proficiency testing"?
DR. SPEED: They do.
MR. NEUFELD: And what is the definition given?
DR. SPEED: Well, external--
MR. HARMON: Objection. No foundation.
THE COURT: Sustained.
MR. NEUFELD: Do you agree with the definition given by the national research council in their report?
MR. HARMON: Objection. No foundation.
THE COURT: Overruled.
DR. SPEED: I do agree with the definition.
MR. NEUFELD: And what is the definition that they give?
DR. SPEED: Well, "External" means, of course, that the agency doing the proficiency testing is separate from the body that's being tested. "Blind" means that the people in the organization being tested are not aware that the samples they are processing, the test samples, are any different from any other samples that they are processing in their normal casework.
THE COURT: Are we about to wind this up? I mean, this is the fifth witness who's told us about the difference between blind and open proficiency testing.
MR. NEUFELD: Moving on from blind and external, why is it essential that the testing be done on a continual basis?
DR. SPEED: Well, for a start, if people make errors, then they should obviously take steps to correct them so such errors don't occur in the future. So that you need a continuing program of testing so that you see that the corrective measures you took are actually working. And also, of course, your error rate may be going down if things are getting better. So you want the most readable, up to date estimate of your error rate.
MR. NEUFELD: Can you give examples of external blind proficiency testing to calculate laboratory error rates in other applications?
DR. SPEED: Yes, I can. I mean, they use--
MR. NEUFELD: All right. Are you familiar with Dr. Gerdes' testimony regarding the national marrow donor program in which his laboratory participates?
DR. SPEED: Yes, I am.
MR. NEUFELD: Is the kind of external blind proficiency testing that they do one example?
DR. SPEED: It is.
MR. NEUFELD: Are you familiar with the use of external blinds in urine testing for the presence of illegal drugs by any governmental agency in this country?
DR. SPEED: Yes, I am.
MR. NEUFELD: And what agency does that to your knowledge?
DR. SPEED: Well, the federal highway administration does it and I think a number of others do. They certainly do.
MR. NEUFELD: And do you know how it's accomplished?
DR. SPEED: Well, the urine samples are tested for illegal drugs by accredited testing organizations, and the samples should be sent to them by the people, you know, by the employers of the drivers, and they're instructed how many samples that they should include that will be blind to the testing agency, which will either have no drugs or there will be some that are spiked to have specific drugs; and then the test will be whether the testing agency actually detects the ones that have no blood--no drugs and finds the appropriate drugs in the ones that have been spiked with drugs.
MR. NEUFELD: By the way, even outside the fields of chemical analysis, are there other examples that you can think of where external blind proficiency testing is utilized in a similar way?
DR. SPEED: Yes. I've made it in the mining area where if you go out and do some prospecting and you have some samples that you think contain valuable ore, you're going to send them off to a chemical laboratory for analysis to say, for example, gold or silver or copper, then you're very interested in whether you got accurate determinations of the concentrations of these samples. So it's very, very common in that area to include samples with known concentrations out of a whole variety of levels so that you can have a check with your unknown samples on the laboratory doing the work. And the laboratory, of course, doesn't know which are the new samples and which are the known samples. This is quite routine in the mining industry.
MR. NEUFELD: In this particular case, are you aware that Dr. Weir testified that he rejects the notion of an error rate, page 33--
MR. HARMON: Misstates the testimony, calls for hearsay, speculation.
THE COURT: Sustained.
MR. NEUFELD: Have you--
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Sir, are you familiar with Dr. Bruce Weir's testimony in this case?
DR. SPEED: I have read it.
MR. NEUFELD: Did you review that portion of Dr. Weir's testimony where he gave his--I'm sorry--where he gave his opinion on the relevance of error rates in forensic DNA profiling?
DR. SPEED: I saw it, yes.
MR. NEUFELD: And what was the opinion that he gave?
MR. HARMON: Objection. Calls for hearsay.
THE COURT: Overruled.
DR. SPEED: Well, I believe he stated that he rejects the notion of an error rate.
MR. NEUFELD: And, sir, did you also read--review Dr. Cotton's testimony on the same subject?
DR. SPEED: I did.
MR. NEUFELD: And what was Dr. Cotton's opinion as best you can recall on the same question?
DR. SPEED: This is not as I precisely recall, but I believe she said, "I made errors in the past and I don't make them anymore."
MR. NEUFELD: Let me--
MR. HARMON: Your Honor, I object. That calls for speculation. That's not what she said. That misstates the testimony.
THE COURT: Overruled. The jury heard what Dr. Cotton said as with Dr. Weir.
MR. HARMON: Move to strike the answer.
THE COURT: Overruled. The jury can compare the two and see if there's a difference that's significant.
MR. NEUFELD: One moment.
(Brief pause.)
MR. NEUFELD: May I approach the witness to show him a portion of testimony?
THE COURT: Proceed.
MR. NEUFELD: Thank you.
MR. HARMON: Excuse me. May I please see that?
MR. NEUFELD: Sure.
MR. HARMON: Can I see it over here?
(Brief pause.)
MR. NEUFELD: It's 27471.
MR. NEUFELD: Are you familiar with the opinion that Dr. Cotton gave on the role of laboratory error rates in evaluating the weight of DNA evidence?
DR. SPEED: Yes.
MR. NEUFELD: And what was her opinion?
DR. SPEED: That it should play no role.
MR. NEUFELD: Now, sir, do you agree with that opinion of Dr. Cotton?
DR. SPEED: I don't, no.
MR. NEUFELD: Do you agree with that opinion of Dr. Weir?
DR. SPEED: No.
MR. NEUFELD: Now, in your opinion, sir, does the NRC report also disagree with the opinions of Dr. Weir and Dr. Cotton on that point?
MR. HARMON: Objection. Calls for a conclusion, speculation, no foundation.
THE COURT: Sustained.
MR. NEUFELD: Well, as an expert who is asked to interpret those portions of the report that deal with statistical issues, what is your opinion as to whether the NRC report rejects or disagrees with the opinions of Bruce Weir and Robin Cotton?
MR. HARMON: That misstates the sections that--
THE COURT: Sustained.
MR. NEUFELD: Well, does the NRC report endorse the use of error rates based on external blind proficiency testing as a necessity for interpreting forensic DNA profiling?
DR. SPEED: That's how I read the report.
MR. NEUFELD: Are there other experts besides the NRC report whose opinions you have considered as well?
MR. HARMON: Objection. Calls for hearsay, no foundation.
THE COURT: Overruled.
DR. SPEED: Yes, there are.
MR. NEUFELD: Maybe we should approach at this moment, your Honor.
THE COURT: Proceed.
MR. NEUFELD: Okay. In the field of statistics as opposed to--I'm sorry--withdrawn. In the field of statistics as applied to genetics, who would those other experts be whose opinions on this matter you have listened to?
MR. HARMON: Objection. The names, your Honor--it's clear where we're going. This calls for hearsay, no foundation.
THE COURT: Overruled.
DR. SPEED: Well, a number of professors of statistics that I know who are interested in or knowledgeable about genetics.
MR. NEUFELD: And could you please tell us the names of those people whose opinions you considered?
MR. HARMON: Your Honor, objection. This is where we discussed before we--
THE COURT: Are those notes you're referring to, doctor?
DR. SPEED: Well, I have them. I can cite them without referring to the notes.
MR. HARMON: I have not been provided a copy of those despite my repeated request, your Honor.
THE COURT: Proceed.
MR. HARMON: May I have a copy of those notes? I've never seen them, your Honor.
THE COURT: Have a seat. We'll take that up shortly.
MR. NEUFELD: Would you please tell us the names of the experts in the field of statistics as applied to genetics whose opinions you have considered on this particular question?
DR. SPEED: Dr. David Balding, the Queen Mary College in London.
MR. HARMON: I'm sorry?
DR. SPEED: Dr. David Balding, B-A-L-D-I-N-G, Professor Peter Donnelly of the University of Chicago, D-O-N-N-E-L-L-Y, Professor Elizabeth Thompson of the University of Washington in Seattle.
THE COURT: Let me see counsel at the sidebar with the reporter, please.
(The following proceedings were held at the bench:)
THE COURT: We are over at the sidebar. I take it we're about to launch into this famous letter.
MR. NEUFELD: I'm thinking I can avoid the letter, and the way I think I can avoid the letter is, instead of having him list the 26 people in the letter, he's only going to list the--I think the other six or seven people who he said are people in his field that he is personally familiar with their views. So I won't have to actually introduce the letter. I can avoid the letter that way. The list of names that he has there is simply the list of names on the letter.
THE COURT: Well, he's got what appears to me to be about a half-inch worth of notes there sitting in front of him.
MR. NEUFELD: No. What he has sitting in front of him is Bruce Weir's report and what he has sitting in front of--Bruce Weir's report and the letter to nature, and that's it.
THE COURT: Well, he had the list of names in front of him at hell.
MR. HARMON: Can we see what he's got?
MR. NEUFELD: The list of names is actually written on the back of one of the pages of the letter to nature, and all it is is a list of names that's printed on the letter to nature, and he's simply, before he came in here today, circled those people who he had personal contact or he's personally familiar with their conclusions as opposed to relying on the letter itself.
THE COURT: All right. You realize by opening this up that you're giving the Prosecution the opportunity to cross-examine on all the works of those other people. They're going to ask for a two-week continuance for the opportunity to cross-examine on what I consider to be a relatively silly point, whether or not one should consider error rates in doing these kind of collections. That's the whole point, right?
MR. COCHRAN: Let me--
THE COURT: No, no, no.
MR. COCHRAN: Can I--
THE COURT: No.
MR. NEUFELD: I can ask it.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Your Honor--
THE COURT: Do you understand my concern, Mr. Neufeld, that you can open this up wider than you want to?
MR. NEUFELD: Let me see if I understand the law in California on this point. I thought that the law is that if he wants to, he could call these individual scientists if he wanted to as part of his case and ask them whether or not they in fact expressed the opinions that this witness says he's relying on. I think that is fair and they are entitled to do. But if I don't introduce the letter and I don't introduce any of the other people, isn't that the full extent of what they can do once I mention those names?
MR. HARMON: I think the fundamental question under 801 is, do we just let him come in and give a list of people he's familiar with and then force me to call eight people? I think under 801, we're entitled to argue whether or not--whether you think as a foundational matter this is kind of gossip recently relied on by experts in this field and not force me to have that before the jury.
THE COURT: Isn't he relying upon the works of these people?
MR. NEUFELD: Some of them, he's relying--first of all, I object to the notion it's gossip. Some of them, he's relying on their printed work. In other instances, he's relying on telephone conversations he's had with some of them or in-person discussions he had with them. It's going to be limited to those people that he has that kind of familiarity with, and I'm not going to read a list of other people as Mr. Harmon pointed out earlier that--whose names he didn't really recognize. That's how I thought I would avoid the letter itself. Now--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: So the question is, if I just do that, does that open the door to some two-week continuance?
THE COURT: Well, here's the problem. For starters, it has to be something that a reasonable scientist will rely upon and interpret as in the--and given the nature of this field, published works. Okay. And now, let's assume this is too published works. Then Mr. Harmon has to have the opportunity to locate those published works and to evaluate them and to use them to cross-examine this guy. That's what you're about to open up. Telephone conversations with people about this particular issue doesn't cut it as far as a basis for forming scientific--
MR. NEUFELD: I would respectfully disagree and I would ask the Court to consider the fact that very often in the scientific community--
THE COURT: Well, Mr. Neufeld, this is getting incredibly redundant.
MR. NEUFELD: If I may--
THE COURT: Now we are talking about computation of laboratory error rate into the calculations of frequency. That's all we are talking about here, which you've established; have you not? These jurors have not taken a note for half an hour. Have you noticed that? They've gotten the point.
MR. NEUFELD: May I? Is it the Court's ruling that it doesn't consider personal conversations or nonpublished reports to be an adequate basis under rule 801(B)?
THE COURT: In this unique context, yes.
MR. NEUFELD: Then I will move on and I will not worry. At this point, I'll just go forward.
THE COURT: Okay.
MR. NEUFELD: If I go forward at this point, it hasn't opened any doors.
THE COURT: That's true.
MR. HARMON: I would like to examine these notes he has.
THE COURT: Do they--
MR. HARMON: I'd like to put something on the record about Mr. Neufeld's representations about those slides because although I don't want to waste the jurors' time, I think it's very critical--
MR. NEUFELD: You may want to consider these--by the way, these were actually--they were on the board and some of them, not all of them were used at this point. These two were marked at that point.
THE COURT: Let's proceed.
(The following proceedings were held in open court:)
THE COURT: All right. Counsel, let's proceed.
MR. NEUFELD: One moment, your Honor.
(Brief pause.)
THE COURT: Yeah. We're missing 984. Proceed. All right. Mr. Neufeld.
MS. CLARK: Just one moment, your Honor.
(Brief pause.)
MR. NEUFELD: All right. Professor Speed, in this case, there has been testimony that some of the items of evidence such as the Bundy blood drops, a portion of the sample was sent for testing at one laboratory and another portion of the sample was sent to a second laboratory. Are you familiar with that testimony?
DR. SPEED: I am.
MR. NEUFELD: To what extent does dividing the sample and sending it to two laboratories or three laboratories and finding that they get identical results reduce the chance that error explains the result from a statistical standpoint?
MR. HARMON: Objection. No foundation, calls for speculation.
THE COURT: Overruled.
DR. SPEED: The chance of--or chance that errors after the samples were sent would be reduced, but any errors that occurred prior to the samples being sent would not be protected by that multiple testing.
MR. NEUFELD: To what extent does obtaining the same results on different items of evidence reduce the chance of errors explaining the result?
DR. SPEED: Well, it's a similar issue. If there's a common source of error, then having consistency across different samples doesn't protect you against that source of error, but errors that will be separate to the samples.
MR. NEUFELD: Does this type of error have a name in the statistical literature?
DR. SPEED: It's very similar to what's called "Common mode failure" in reliability.
MR. NEUFELD: Can you give an example of what "Common mode failure" is in the reliability literature?
DR. SPEED: Well, there's a nice example that I like to use from my study of nuclear reactor safety where people had what they regarded as independent safety systems that just happened to be wired through the same electrical switchboard; and there was a fire in that electrical switchboard and it put out both of these or a number of supposedly independent systems, because that was the common source back at the beginning. They're independent after they left the switchboard, but they were dependent through this common switching.
MR. NEUFELD: And how would you analogize that example to what has been testified to in this case?
DR. SPEED: Well, that having redundancy or replication will protect you against the impact of errors after the samples have been separated. But if there's an error that occurs at the time they were together or at the time before a particular sample was split and sent, then this extra redundancy doesn't help.
MR. NEUFELD: Let me ask you a hypothetical. Dr. Gerdes testified that given the manner the items of evidence were processed in this case, that, for instance, all the Bundy blood drops could have been cross-contaminated by Mr. Simpson's reference sample on the morning of June 14th, 1994. Would that be an example of common mode error?
DR. SPEED: Well, it would, yes.
MR. NEUFELD: And if the same error could affect all the swatches for a particular item, would sending the different swatches to different laboratories and getting identical results reduce the chance that the result is explained by that type of error?
DR. SPEED: No, it wouldn't.
MR. NEUFELD: And if the same error could have affected a number of different items whose results were identical, would that reduce the chance that the result is explained by that type of error?
DR. SPEED: No.
MR. NEUFELD: Are you aware that Cellmark does not participate in external blind proficiency tests?
DR. SPEED: Yes, I am.
MR. NEUFELD: Are you aware that the Department of Justice laboratory that Gary Sims works for does not participate in external blind proficiency testing?
DR. SPEED: Yes, I am.
MR. NEUFELD: And are you aware, sir, that the Los Angeles Police Department does not participate in external blind proficiency testing for its DNA tests?
DR. SPEED: Yes.
MR. NEUFELD: To your knowledge, sir, does the Los Angeles Police Department laboratory participate in any kind of proficiency testing which would help estimate the frequency of errors of the type discussed by Dr. Gerdes?
MR. HARMON: Objection. Calls for speculation. Hearsay. No foundation.
THE COURT: Overruled.
DR. SPEED: No, I don't believe so.
MR. NEUFELD: For instance, Professor, are there any proficiency tests addressing evidence collection, evidence processing before the DNA is actually extracted?
DR. SPEED: Not that I'm aware of.
MR. NEUFELD: Now, what effect does the absence of external blind proficiency testing have on constructing a scientifically appropriate estimate of the laboratory's error rate?
DR. SPEED: Well, in the absence of such a test, you can't really do that. You don't have a suitable estimate of error rate.
MR. NEUFELD: Without external blind proficiency testing?
DR. SPEED: That's correct.
MR. NEUFELD: Does that mean that the jury should act as if the error rate was zero?
MR. HARMON: Objection. Leading.
THE COURT: Sustained. Legal conclusion.
MR. NEUFELD: In your opinion, sir, is the error rate for forensic DNA testing conducted by the Los Angeles Police Department zero?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained. Foundation.
MR. NEUFELD: All right. As a professor of statistics, have you assessed the role that error plays in various kinds of processes?
DR. SPEED: I have.
MR. NEUFELD: And have you assessed the role that error rates play in processes in which people are involved?
DR. SPEED: I have.
MR. NEUFELD: And as a result of what you have read and what you have studied, what is your opinion about error rates in processes where human beings are involved?
MR. HARMON: Objection. Irrelevant, no foundation.
THE COURT: Overruled.
DR. SPEED: Well, error is involved in all human activities and all processes, particularly complex processes, errors will occur. The only question is what is their rate.
MR. NEUFELD: Through your studies on error rates and proficiency testing, Dr. Speed, is it expected that error rates from blind external tests will be higher or lower than for open tests?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Sustained. Foundation.
MR. NEUFELD: Are you familiar with any literature which discusses the different expected error rates due from blind external tests as opposed to open tests?
DR. SPEED: Yes, I am.
MR. NEUFELD: And is this also a topic which is discussed among professors of statistics or statisticians in your field?
DR. SPEED: Yes.
MR. NEUFELD: And as a result of what you've read, the result of discussions that you've had with other members in your field, what is your opinion on this particular subject?
DR. SPEED: Well, it's generally the case that error rates with blind tests are greater than error rates with open tests.
MR. NEUFELD: And why is that, sir?
DR. SPEED: Well, it seems to me common sense is the explanation. I'm not sure that I can really say why it is, but it's the sort of thing that happens when somebody knows they're being tested, they can do a more careful job, a more thorough job, whereas if it's just part of routine processing, then it may from time to time be treated less carefully.
MR. NEUFELD: Now--
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. NEUFELD: Are you familiar, Professor, with Dr. Robin Cotton's testimony regarding the comparative likelihoods as to how someone could be falsely implicated by a DNA match?
DR. SPEED: Yes.
MR. NEUFELD: And what is her statement on that particular issue as you can best recall it, sir?
MR. HARMON: Calls for hearsay.
THE COURT: Overruled.
DR. SPEED: If you have it in front of you, I'd rather read it, as I didn't do such a good job in my memory last time, or I could paraphrase.
MR. NEUFELD: May I approach the witness?
THE COURT: You're going to have to wind it up.
MR. NEUFELD: I'm going to finish in five minutes.
DR. SPEED: Yes. That's--
MR. NEUFELD: And what is--could you please tell us what Dr. Cotton's opinion is on this particular issue?
DR. SPEED: Well, she says that she agrees that if someone was falsely implicated by an RFLP DNA test, then it is more likely to have arisen by lab error than by this coincidental match.
MR. NEUFELD: Is there a scientific basis for knowing that the chance of erroneously concluding that Mr. Simpson is the source of the DNA tested is greater than the frequency cited by Drs. Weir, Cotton and Mr. Sims?
MR. HARMON: Objection. Foundation, hearsay, calls for speculation.
THE COURT: Sustained.
MR. NEUFELD: Well, do you have expert knowledge of the relative sizes of these two contributions?
DR. SPEED: I do.
MR. NEUFELD: And what is the expert knowledge you have on the relative sizes of these two different types of explanations, one being the frequency of a coincidental match and the other being a match which is explained by error?
DR. SPEED: Well, the frequencies of coincidental matches, apart from the ones that have very, very few not very helpful loci, have been 1 in millions, 1 in billions or 1 in trillions, whereas the frequencies of errors even of the best labs are of the order of 1 in 50, 1 in 100 or 1 in 200 for very, very good labs. So they are much, much bigger than the 1 in millions, 1 in billions and 1 in trillions and hence play a more important role in contributing to errors.
MR. NEUFELD: What is the importance of this difference to the statistical evaluation of the DNA evidence in this case?
DR. SPEED: Well, it really means that you must know about the errors and that you should really not be that concerned about the coincidental matches once it's reached a certain relatively small value. The errors will be much more important in this overall calculation.
MR. NEUFELD: Nothing further of this witness, your Honor.
THE COURT: All right. Ladies and gentlemen, we're going to take our recess at this time. And, Professor Speed, you can step down. You are ordered to return tomorrow morning at 9:00 o'clock. Ladies and gentlemen, if you recollect, back when I first issued the order placing you into sequestration as a jury, I indicated to you that the court staff would keep a collection of some of the news coverage and newspapers and magazines for you. And one of the selections that we made was by a news writer by the name of Robin Clark who was a writer for the Philadelphia Enquirer, which is, as you know, one of this nation's oldest and most well-known newspapers. Mr. Clark was one of the regulars here. If you noticed, every day that you're here, there's always a regular contingent from the news media here with us, and Mr. Clark was one of the regulars. And I regret to tell you that he passed away over the weekend as a result of the--a car accident over on PCH. He studied journalism at the University of North Carolina, Chapel Hill, and he was a very accomplished writer. He was a Pulitzer Prize nominee for a story that he did while working for the Charlotte Observer and he was an excellent reporter. He was liked, admired and most importantly, respected by his colleagues, and I think that's the highest tribute that anybody can pay in the journalism profession. So this evening, we'll stand in recess in his memory. All right. You all have a nice day. Remember my admonitions.
(At 5:00 P.M., an adjournment was taken until, Tuesday, August 8, 1993, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the state of California,)
Plaintiff,)
Vs.) No. Ba097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Monday, August 7, 1995
Volume 201 pages 40443 through 40740, 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 201 pages 40443 - 40740
Day date session page vol.
Monday August 7, 1995 A.M. 40443 201 P.M. 40576 201
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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 201 (Resumed) 40456gc 40552bs (Resumed) 40580bs 40615gc (Further) 40649bs 40658gc (Further) 40664bs
Speed, Terence 40676n 201
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Gerdes, John 201 (Resumed) 40456gc 40552bs (Resumed) 40580bs 40615gc (Further) 40649bs 40658gc (Further) 40664bs
Speed, Terence 40676n 201
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
569 - 1-page document 40458 201 described as the notes of John Gerdes
570 - Chart 40485 201 entitled "RFLP results"
571 - chart 40509 201 entitled "Concordance of Cellmark with DOJ results"
572 - 1-page document 40526 201 entitled "LAPD PCR DQ-Alpha testing"
573 - 1-page document 40617 201 entitled "Bronco - DQ-Alpha typing sheet"
574 - 1-page document 40623 201 entitled "Bundy - DQ-Alpha typing sheet"
575 - 1-page document 40637 201 described as DNA hybridization record - hyb-180
576 - 1-page document 40637 201 described as DNA hybridization record - hyb-181
DEFENSE for in exhibit identification evidence page vol. Page vol.
1311 - Photograph 40558 201 of a document entitled "Replicate DQ-Alpha testing" with a red circle (Computer printout)
1312 - Photograph 40590 201 of a page of 69 of the national research council report (Computer printout)
1313-A thru 1313-C - 40597 201 slide presentation relating to typing by the LAPD (Computer printout)
1314-A thru 1314-G - 40600 201 slide presentation relating to proficiency test conducted on July 14 and 15, 1994 (Computer printout)
1315-A and 1315-B - 40655 201 each a single-page document described as a DNA hybridization record - hyb-176
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