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REPORTER'S DAILY TRANSCRIPT SUPERIOR COURT OF THE STATE OF CALIFORNIA SHARON RUFO, ET AL., N/A, PLAINTIFFS, VS. ORENTHAL JAMES SIMPSON, ET AL., DEFENDANTS.
SANTA MONICA, CALIFORNIA DEPARTMENT NO. WEQ (REGINA D. CHAVEZ, OFFICIAL REPORTER) (The following proceedings were held in open court, outside the presence of the jury.) THE COURT: All right. We have the plaintiffs' objection to designation of Dr. Lee's video testimony, which is extensive. And I don't have a transcript, so I don't know what you're talking about. MR. BAKER: So far, they've objected to everything you've looked at. I just got this this morning. They've objected to everything that -- every question that was asked and every answer that was given, except Mr. Medvene's objections. So I don't know why they were complaining yesterday they needed more time. They just objected to everything. MR. PETROCELLI: Here you go. (Mr. Petrocelli hands transcript of Dr. Henry Lee's deposition to the Court.) (Pause for the Court to review transcript.) THE COURT: Well, it would appear it's going to take some time to go through this. So what witnesses do you have here today? MR. BAKER: We've got Detective Spangler, who's a very short witness. We've got Mulldorfer, who's also a police detective, a very short witness. We've got John Gerdes. He's one of our experts. Your Honor, this can't be construed -- THE COURT: Mr. Baker, I'm trying to get organized. MR. BAKER: All right. THE COURT: What is your time estimate on these witnesses today? MR. BLASIER: Dr. Gerdes will be an hour or two. We'll probably be finished with our witnesses in the morning. MR. LEONARD: The two police witnesses, for direct, are 10 or 15 minutes. MR. P. BAKER: I also planned on reading some depositions, but we can move it. THE COURT: So your whole testimony presentation, you think, is going to be about half a day? MR. BAKER: Yes, of live testimony. MR. LEONARD: Or less. THE COURT: Okay. We'll do this in the afternoon. MR. LEONARD: Excellent. THE COURT: Bring the jury in. (Pause in proceedings.) (Jurors resume their respective seats.) THE COURT: Good morning. JURORS: Good morning, Your Honor. MR. PETROCELLI: For the record I'd like to move in Exhibits 537, 538, and 539. Thank you. THE COURT: Received. (The instrument previously marked as Plaintiffs' Exhibit 537 was received in evidence.) (The instrument previously marked as Plaintiffs' Exhibit 538 was received in evidence.) (The instrument previously marked as Plaintiffs' Exhibit 539 was received in evidence.) MR. LEONARD: Your Honor, we'd like to move in the copy of the logbook that got identified, right? MR. PETROCELLI: Yes. THE COURT: Received. THE CLERK: I need a number. MR. LEONARD: It was -- at the time, it was next -- MR. BAKER: No. MR. PETROCELLI: No. It was 11-something. THE COURT: 1177. (The document previously marked Defendants' Exhibit 1177 for identification, was received in evidence.) THE CLERK: Correct. THE COURT: See, I'm paying attention. MR. LEONARD: Good morning. We call Detective Kelly Mulldorfer. KELLY MULLDORFER, called as a witness on behalf of Defendants, was duly sworn and testified as follows: THE CLERK: 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? THE WITNESS: I do. THE BAILIFF: Please be seated. THE CLERK: And would you please state and spell your name for the record. THE WITNESS: Kelly Mulldorfer. That's K-e-l-l-y, M-u-l-l-d-o-r-f-e-r. DIRECT EXAMINATION BY MR. LEONARD: Q. (BY MR. LEONARD) Good morning, Detective Mulldorfer? A. Morning. Q. Can you tell the ladies and gentlemen of the jury and the Court, what your present occupation is? A. I'm a detective for the Los Angeles Police Department. Q. And where are you presently assigned? A. I'm currently assigned to the legal affairs division. Q. How long have you been a detective with the Los Angeles Police Department? A. About three years. Q. How long have you been a Los Angeles police officer? A. Oh I've been on the department for 16 years. Q. Now, directing your attention to July of 1994, where were you assigned at that time? A. I was assigned to the police commission, investigation division, enforcement section. Q. Just tell us in general terms, what that division does, or what that department does. A. Well, the police commission issues permits for various businesses in the City of Los Angeles and we investigate -- we investigate those companies or businesses that hold police commission permits, which would include official police car garages and security guard companies, and things like that. Q. Well, can you explain what is an official police garage, Detective Mulldorfer? A. An official police garage is the garage that has the contract with the city to do all of our towing for our vehicles when we have them towed or stored for one reason or another. Q. That would include vehicles impounded for investigatory purposes, correct? A. Yes. Q. Now, in July of 1994, were you assigned to investigate security issues surrounding the white Ford Bronco owned by Mr. Simpson? A. Yes. Q. And in particular, were you -- were you assigned to investigate an alleged break-in to the vehicle, and some theft of some items from the vehicle? A. Yes, I was assigned to investigate a theft -- Q. Okay. A. -- from the vehicle. Q. And I take it that part of your assignment was to make sure that -- that the security procedures that were in effect at this garage that the Bronco was being held at were adequate; is that correct? A. Yes. Q. Okay. By the way, what is the name of the garage? A. Viertels tow. Q. Where is that located? A. It's located on Temple Street. You know, I don't have the exact address. I have it with me, if you need the exact address. Q. No. Just tell us in general terms what part of Los Angeles that's in, if you know. A. Well it's in the Rampart area on Temple Street. Q. Okay. And, of course, Viertesls is what's called an OPG, or official police garage? A. Yes. Q. Who gave you this assignment, by the way? A. My commanding officer. Q. And what were you told your assignment was? MR. GELBLUM: Objection. Hearsay. MR. LEONARD: It's to explain the subsequent conduct, Your Honor. THE COURT: Overruled. A. I was given the investigation to -- I was told to investigate the theft, and to look and see if Viertesls had violated any of the rules that they are required to abide by. Q. Okay. And in particular, what were you told about the theft? MR. GELBLUM: Objection. Hearsay. MR. LEONARD: Same. THE COURT: That's sustained. MR. LEONARD: It explains her subsequent conduct, Your Honor. MR. GELBLUM: Given the assignment, Your Honor -- MR. LEONARD: The breadth of the investigation, I think, is relevant. May we approach? THE COURT: No. MR. LEONARD: It's one question. THE COURT: Ladies and gentlemen, this is another instance where parties want to get in some hearsay to explain another purpose, or in this case, conduct. When we let you hear that, that's not being received to show that a theft occurred or anything in particular happened in this particular conversation or report that this officer received. It's only to explain what she did subsequent to that, so you can't consider it as proof of any theft or anything like that. Everybody understand that? JURORS: Yes, sir. THE COURT: Okay. Go ahead. MR. LEONARD: As briefly as possible, can you explain in some detail what you were told about the theft? A. Well, actually, we -- Q. The alleged theft. A. Okay. We received a letter from Mr. Viertels, and I was given a copy of the letter that outlined the -- the circumstances under which one of their tow-truck drivers was let go. And that included the allegation of a theft from that particular vehicle. Q. That the tow-truck driver had gone into the vehicle and taken something out of it? A. Yes. Q. What were the items? A. Some type of papers, credit-card receipts, cleaning receipts, or something like that. Q. Now, were any limitations placed on you in your investigation? A. I don't understand what you mean. Q. Well, were you simply going to investigate this particular theft, or did you have in mind making sure that no other thefts had occurred, or that there hadn't been any other illegal entries or unauthorized entries? Let me put it that way. I take it you weren't limiting yourselves once you got this. MR. GELBLUM: Objection. Compound. THE COURT: Sustained. Why don't you ask her the scope of her assignment? Q. (BY MR. LEONARD) I take it you weren't limiting yourself in your investigation; is that right? MR. GELBLUM: Objection. Vague. She already said what her assignment was, Your Honor. Q. (BY MR. LEONARD) Were you interested, Detective Mulldorfer, in determining whether or not there had been any other unauthorized entries of any kind? MR. GELBLUM: Objection. Irrelevant. THE COURT: Sustained. MR. LEONARD: It explains her subsequent conduct. I can -- THE COURT: You could ask her about this vehicle. MR. LEONARD: I intend to. Q. (BY MR. LEONARD) As part of the investigation you undertook, you inspected the Bronco; is that right? A. I don't know if "inspected" would be the right word. I went and looked for the items inside the vehicle. Q. Well, you used the word "inspect" when you were asked the same question at the criminal trial. Do you remember that? A. Well, if it's in the transcript, then I must have said it, so I'll stand by that. Q. So you did an inspection? A. Okay. I -- that's -- MR. GELBLUM: Can we get a page and line number? THE COURT: No. Because it hasn't been used. MR. GELBLUM: He's representing some -- Q. (BY MR. LEONARD) Did you inspect the Bronco? A. I looked in the Bronco. Yes, I did. Q. It was your intention, when you went there, to inspect the Bronco, correct? A. It was my intention to go and look for the paperwork that was allegedly missing. Q. And in the course of -- of your investigation, and your inspection of the Bronco, tell the ladies and gentlemen of the jury which portions of the Bronco that you looked into or looked around. MR. GELBLUM: Objection. Misstates the testimony. She said she did not inspect it; she looked for the receipts. THE COURT: Overruled. A. Okay. I looked in the side-door pockets of the Bronco. I believe we looked in the console, in between the seats, and we may have looked in the glove box. I don't have any independent recollection of that. Q. You -- you looked in the side-door panels; you looked in the console and around the console I assume, correct? A. What do you mean, "around?" Q. Well, you wanted to make sure that -- that if you were looking for the credit slips -- correct? A. Yes. Q. You wanted to make sure you looked everywhere that the credit slips could be, correct? A. Well, I -- I looked in -- I can only tell you where I did look. That was in the side-door pockets. We lifted up the -- or I think it was Bob Jones that may have lifted up the console lid. We looked in there and the other door pocket. And that was it. Q. Okay. So you -- you did look around the console; is that correct? MR. GELBLUM: Objection misstates the testimony. Asked and answered. A. Well, I don't -- THE COURT: Overruled. A. (Continuing.) I don't quite understand what you're getting at. If you're asking me did I look down between the seats, press them apart, look down in there -- Q. Yeah. A. No, I didn't. No, I did not. Q. But you did open the console; is that right? MR. GELBLUM: Asked and answered. THE COURT: Overruled. A. It's my recollection that Bob Jones opened the console. Q. (BY MR. LEONARD) You were present when he did that? A. Sure. Q. You wanted to see what's in there? A. Yes. I was standing next to him. Q. You didn't have your eyes closed? A. No, sir. Q. You didn't look away, right? A. This was three years ago. I don't remember if I looked away. I was there when he opened it. I glanced, overlooked, and -- Q. By the way, do you wear glasses? A. Yes, I do. Q. Were you wearing your glasses? A. No. Q. What do you wear glasses for? A. To read small print. Q. I want to call your attention to the testimony at the criminal trial. It's 38267, line 24. A. Okay. Q. Now, Ms. Mulldorfer -- Detective Mulldorfer, did there come a time when you -- you, yourself, inspected the Bronco? Answer: "Yes." Does that refresh your recollection as to whether or not you inspected the Bronco, or that you used that term at the criminal trial? A. It sounds like he used the word and I said yes. And if that's my testimony, then -- then I must have interpreted his question to mean did I look in the vehicle. Q. Did you -- if you want to look the at transcript? A. Sure, yes. I'd like to. Thank you. (Witness perusing criminal trial transcript.) I'm sorry. Where is it on here? Q. I'm sorry. A. Well, okay. He used that word, and it was my interpretation that he meant to look in the vehicle. It's not a word that I possibly would have chosen to describe my activities, but. . . Q. Did you attempt at any point to correct Mr. Scheck when he asked you that question? A. No. MR. GELBLUM: Objection. Irrelevant. THE COURT: Overruled. A. No. Q. Did you say to him, that's your interpretation, but I didn't do that? A. No. I think the record will reflect that I didn't say that, no. Q. Okay. Now, was there any problem with the lighting in the vehicle that day? In other words, were you able to see adequately for your purposes? A. Well, I don't remember that -- I don't believe I had to use a flashlight or anything. I don't really have any specific recollection about the lighting. Q. Is there any reason for you to believe that you would have undertaken your investigation and inspection without adequate lighting, Detective Mulldorfer -- A. Well, if there had -- Q. -- since you don't recollect? A. If there hadn't been adequate lighting, I would have asked for a flashlight. Q. So the lighting was adequate, correct, for you to do your inspection? A. For my purposes, yes. Q. Okay. And again, you weren't wearing your glasses. Did that -- do you think that impaired your ability to see at all? A. Well, it would have if I needed to look at a receipt. And to be honest with you, I don't know that I wasn't wearing my glasses. I don't remember that. I may or may not have been. But the fact that it would have, had -- if I had to see something in detail, but certainly I think I would have been able to -- able to spot a paper receipt. I possibly would have put my glasses on to read the receipt. Q. You wouldn't have any trouble, for instance, spotting an object maybe that big from, like, inside the car? The receipt would have been about that big, right? (Indicating.) A. About that big. Q. You wouldn't have any problems seeing the object? A. No. Q. You might have had problems seeing the small print, the print on the object, without your glasses? A. Yes. Q. Having talked about this, now, for a couple of minutes, is your memory refreshed at all as to whether or not you were wearing your glasses? A. No. Q. Now, when you went into the Bronco, what -- What date was that, by the way? A. I don't know what date that was. Q. Let me ask you something: One of the reasons that you were investigating was to make sure that Viertels had the proper paperwork or documentation of when people went in and out of the Bronco, correct? A. Yes, that became an issue in the investigation. Q. And you determined rather early on that they didn't have -- they did not keep a log, as they were supposed to, of individuals who came in and out of the Bronco; isn't that correct? MR. GELBLUM: Objection. Relevance, Your Honor. THE COURT: You may answer. A. At the time, I believe the requirements were that they -- they keep a log of people who go in and remove things from the vehicle. And they didn't have that in place at this time. Q. They didn't have any records of -- of any kind indicating who went in and out of the vehicle; isn't that right? A. No, they -- but they're not required to indicate who -- at that time, they were not required to indicate anyone who had gone in and looked in the vehicle, or if they didn't remove anything from the vehicle -- remove any property from the vehicle. They were not required to log that in. Q. But if -- if anything was removed from the vehicle, that should have been lodged, correct? A. Yes. Q. Okay. Including biological material, correct? A. You know, I'd have to look at OPG rules. But I don't think that we would normally sustain a violation of that section if we went in there to remove biological evidence. Q. By the way, this requirement that a log be kept of people who go in and remove items, that would include police officers and criminalists, correct? A. Again, I'd have to read the section again on that. I don't -- it's my recollection that it talks about removing property for safekeeping or things like that. But on an evidentiary stored vehicle, I don't believe they were required to note what we took out of the vehicle, because a lot of times, we may not want that. I mean, it's part of a criminal investigation. I don't think the OPG had any reason to know what we would remove in terms of evidence. Q. Now, this vehicle was being held under what was called special care requirements or provisions; is that right? A. It was in their evidentiary hold area, yes. Q. You're familiar with the term "special care," right? A. It's on the vehicle impound sheet. Q. Explain what that is to the jury. A. Special care is the -- I believe it's a box on our vehicle report form that lets the garage know that it's to be kept in a certain area, the evidentiary hold area, which is an area that's cordoned off inside; it's covered, so that the elements can't get to the vehicle. Usually, it's used with vehicles that we're holding for some type of evidence, or prints, or part of a criminal investigation. Q. And as part of the requirements for special care, isn't it true that -- that there should -- that's one of the reasons there should be a log of people who go in and out of the vehicle; isn't that right, that when a vehicle is held under special care provisions; isn't that correct? A. Yes. Q. Okay. And again, there was no log for this vehicle, correct? A. No, there wasn't. Q. And there wasn't a log created until after you had done your investigation, correct? A. Correct. Q. By the way, you didn't indicate anywhere in writing when you went in and out of the vehicle; isn't that right? A. That's correct. Q. When you went into that vehicle, did you see blood anywhere? MR. GELBLUM: Objection. Assumes facts not in evidence that she went into the vehicle. THE COURT: Overruled. Q. (BY MR. LEONARD) You did go into the vehicle. You reached in or looked into the vehicle? A. I leaned in, yes. Um-hum. Q. When you were looking at the console, did you see blood there? A. I -- I don't remember if I did or I didn't. Q. Okay. I'd like to show you a photograph. See if this refreshes your recollection. MR. P. BAKER: Exhibit 1420. (Exhibit No.1420 is displayed on the Elmo screen.) Q. This was a photograph taken on August 10. By the way, when -- when -- before we start, when did you go -- when did you go over and inspect the vehicle, approximately? A. It was shortly after I got the investigation on July 13, I believe. I would say within a week, probably. Q. Do you remember yesterday we had a chat out in the hallway, and I showed you something in your report which indicated that in your report, you had indicated as of 7/18 you had already been into the vehicle? Do you remember that? A. I remember the conversation. I don't think there was an indication in any report when I went in there. Q. Do you remember your report says that you, on your -- it was your first visit with Mr. Jones, that you went into the vehicle, correct? A. Yes. MR. GELBLUM: Objection. Q. (BY MR. LEONARD) And your second visit with Mr. Jones was on the 18th of July, correct? You can look at your report. A. I believe that's what my report said. Q. So it would have been before July 18 that you went into the Bronco? A. I think that would probably be fair to say. Q. Okay. Take a look at that photograph. I want you to concentrate, in particular, on the sections of the console that you can see. A. Okay. (Witness perusing photograph.) MR. LEONARD: Right in here. (Indicating to photo displayed on the Elmo screen.) Q. (BY MR. LEONARD) Do you see any blood there? MR. GELBLUM: Your Honor, I'm going to object to the use of this unless we have some foundation where it was when it was taken. MR. LEONARD: We'll prove it up. We have a witness who will prove it up. THE COURT: Go ahead. A. I can't see anything from the photograph, no. Q. (BY MR. LEONARD) Does that -- does that refresh your recollection in any way, whether or not there was blood in that vehicle when you saw it between July 10 and July 18? A. No. Q. Doesn't refresh your recollection at all? A. No. MR. LEONARD: Show the next photo. MR. P. BAKER: Page 2 of 1420. MR. LEONARD: Put it so that the dark line on the console is horizontal. (Photo adjusted on Elmo.) Q. (BY MR. LEONARD) Now, I want you again -- MR. LEONARD: Do we have a number for that? MR. P. BAKER: That's page 2 of 1420. Q. MR. LEONARD: I want you to direct your attention again to the console area, and ask you: Does that refresh your recollection of whether or not there was blood on the console when you saw it between July 10 and July 18, 1994? MR. GELBLUM: Same objection about foundation. MR. LEONARD: We'll prove this up, just like you did. MR. GELBLUM: I didn't do anything. Showing a witness a picture with no foundation about when it was taken or where it was taken. MR. LEONARD: It was taken on August 26, 1994. And we'll prove it up. Q. (BY MR. LEONARD) Now, does that refresh your recollection whether or not there was blood there? A. Well, no, it doesn't. But I must add that I didn't look in the console from the passenger's side. Q. Oh, you remember that? A. Yes, I do. I do remember that. Q. So you -- you did go to the side pocket on the door on the passenger's side, didn't you? A. Yes. Q. Did you look at all in that direction, at that time? A. I don't remember that. Q. Did you look in the glove compartment? A. Probably. Q. Okay. And do you think your vision was just focused entirely on the glove compartment and/or the pocket, and you had no occasion to look anywhere in the direction of the console; is that your testimony? A. No, I'm not testifying -- I'm not saying that I didn't look in that direction. I'm saying I don't recall whether I saw anything or not. I wasn't looking for that particular type of evidence; I was looking for receipts. And it would -- and it -- It didn't leave an impression on me whether or not I saw it. I don't recall any more than I recall whether I had lunch that day. It was just not something that I remember. Q. Now, was -- were these two photographs ever pointed out to you at any time? Did you -- were you ever asked to do any investigation of -- of these photographs and how blood apparently got on and off the Bronco? MR. GELBLUM: Objection. Argumentative. Q. (BY MR. LEONARD) Were you ever asked to do that? THE COURT: Overruled. A. I've never seen these photographs. MR. LEONARD: I don't think so. No further questions. THE COURT: Cross? CROSS-EXAMINATION MR. GELBLUM: Would you put that back on? MR. FOSTER: The first one? MR. GELBLUM: No, the one that was just on. (Page 2 of Defendants' Exhibit 1420 displayed on the Elmo screen.) BY MR. GELBLUM: Q. Were you asked to investigate blood in the Bronco? A. No. Q. You were asked to look for receipts that somebody stole, right? A. Yes. Q. Who was the man who stole it? A. John Meraz. Q. Who is he? A. He's a tow-unit operator who towed the -- towed the vehicle from the print shack to Viertels. Q. He got fired from Viertels for doing that? A. Yes. Q. Do you have any idea where this photograph -- do you have any idea where this was taken? A. No. Q. Where it was taken? A. No. Q. Whether it was taken with a flash? A. No. Q. Do you see it looks like maybe a flash there with the reflection off the seat? MR. LEONARD: Objection. Calls for speculation. THE COURT: Sustained. MR. GELBLUM: I'm asking her to observe the photograph, Your Honor. THE COURT: Sustained. She's not an expert in photography. You haven't established that. Q. Have you ever taken a picture with a flash? A. Yes. Q. You ever see how it reflects off objects? A. Yes. MR. GELBLUM: Can you bring that up, please. Q. (BY MR. GELBLUM) Do you -- does that look like a flash off the seat? MR. LEONARD: Same objection. THE COURT: Sustained. Q. (BY MR. GELBLUM) Do you have any idea when that was taken? A. No. Q. Does it look like it's outside, rather than in a shack or a shed? A. That's what it looks like. Q. Did it look like it was a flash used? MR. LEONARD: Objection. Same objection. Q. Do you -- THE COURT: Sustained. Q. (BY MR. GELBLUM) Do you know whether a flash was used? A. No. MR. LEONARD: Same objection. Q. (BY MR. GELBLUM) Do you know anything about these photographs? A. No. Q. Were you looking for blood when you went into the Bronco? A. No. MR. LEONARD: Objection. Asked and answered. THE COURT: Sustained. Q. (BY MR. GELBLUM) There was no breach of security at Viertels, was there? I'm sorry. Putting aside Mr. Meraz's theft. MR. LEONARD: Other than that? MR. GELBLUM: Yes, other than that. MR. LEONARD: Okay. Q. (BY MR. GELBLUM) The Bronco was held properly in a cordoned-off area, in a proper manner, correct? A. Yes. Q. It was kept sheltered? A. Yes. Q. And roped off? A. Yes. Q. And secure from the public? A. Yes. MR. LEONARD: Objection. No foundation for that. THE COURT: Overruled. Q. (BY MR. GELBLUM) When you approached the vehicle, did you see print dust on the outside of the vehicle? A. I recall seeing the car had a bunch of gray smudges all over it, that I would assume was print dust. I knew the car had been processed at the print shack. REDIRECT EXAMINATION BY MR. LEONARD: Q. Let me get this right. You don't remember whether you saw blood, but you remember there was gray smudges indicative of fingerprint patterns; is that your testimony? MR. GELBLUM: Argumentative. THE COURT: Overruled. Q. (BY MR. LEONARD) That's your testimony? A. Could you restate the question, please. Q. Yeah. You remember now that there was fingerprint dust on the outside of this vehicle, but you don't remember whether there was blood or not on the console. Is that the way you want to leave it with the jury? MR. GELBLUM: Argumentative. Q. (BY MR. LEONARD) Is that your testimony? THE COURT: Just a minute. That's uncalled for. Q. (BY MR. LEONARD) Is that your testimony? A. Yes. MR. GELBLUM: Objection. MR. LEONARD: Thank you. RECROSS-EXAMINATION BY MR. GELBLUM: Q. You're not just remembering now about the print dust; you remembered at the criminal trial, didn't you? A. Yes. MR. GELBLUM: Thank you. No further questions. MR. LEONARD: Nothing, Your Honor. THE COURT: You may step down. THE COURT: Call your next witness. MR. LEONARD: Detective Frank Spangler. FRANK SPANGLER, called as a witness on behalf of Defendants, was duly sworn and testified as follows: THE CLERK: 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? THE WITNESS: I do. THE CLERK: Please state and spell both your first and your last names for the record. THE WITNESS: My name is Frank Spangler, F-r-a-n-k, S-p-a-n-g-l-e-r. DIRECT EXAMINATION BY MR. LEONARD: Q. (BY MR. LEONARD) Good morning. Is it -- is it sergeant, detective, what is it? A. I'm a lieutenant. Q. Excuse me. Lieutenant Spangler, can you see that board okay, or is there too much of a shine? You need to wear glasses? Okay. Make sure you're wearing your glasses. A. Yes, I can see it fine. MR. P. BAKER: That board is 408. (Exhibit 408 displayed on the Elmo screen.) Q. (BY MR. LEONARD) You are a Police Department lieutenant, correct? A. Yes, sir. Q. How long have you been employed by the police department? A. Twenty-eight years. Q. How long have you been a detective? A. Since -- Q. You are a detective, right? A. Yes. Q. How long? A. Since 1984. Q. And as of June 12, 1994, you were in charge of all West Los Angeles Division detectives; is that correct? A. Yes. Q. Including Mark Fuhrman? A. Yes, sir. Q. And Mr. Phillips? A. Yes, sir. Q. Detective Phillips? A. Yes, sir. Q. Detective Roberts? A. Yes, sir. Q. How long had Detective Fuhrman been under your supervision as of June 12,1994? A. Not counting days off, about 28 days. Q. Okay. And where, if you know, where had he transferred in from? MR. MEDVENE: Objection. Relevance, materiality. THE COURT: Sustained. Q. (BY MR. LEONARD) Directing your attention to June 12,1994, at approximately 2:30 in the morning, you arrived at the Bundy scene? A. Approximately 2:30 in the morning. Q. Is that right? A. On the 13th. Q. Excuse me. The 13th? A. Yes, sir. Q. And you were initially briefed by Detective Phillips; is that right? A. Yes, sir. Q. And then you did a walk-around, and a walk-through with Detective Phillips; is that correct? A. Yes, sir. Q. In other words, you arrived; you walked to the back of the -- Why don't you show us where you walked to. I know that the street isn't on here, but show us where you met Detective Phillips that night on the diagram. A. Do you want me to approach the board? Q. Yeah. There's a pointer up here. A. Okay. (The witness complies.) A. Umm -- Q. The front is over on the right? A. This is the front gate here. (Indicating.) Q. Yes? A. And this is the -- (Indicating.) Q. That's the back? A. And this is the garage. Q. Yes? A. It would be standing in this area back here. (Indicating.) Q. Okay. A. Near the alley. Q. You had a brief discussion with Detective Phillips at this point? A. Yes, sir. Q. And then Detective Phillips took you into the house; is that right? A. Yes, sir. Q. Now, before you went into the house -- And by the way, when you went into the house, it was just you and Detective Phillips, correct? A. Correct. Q. Before you went into the house, you saw Detective Fuhrman outside? A. Yes, I did. Q. Okay. You went into the house with Detective Phillips, walked through to the front of the house, went out on the landing, and made some observations from the front landing, correct? A. Actually, most of the observations were done from inside the doorway that leads to the landing. Q. Okay. But you never went down into the Bundy -- the actual crime scene in the front of Bundy, correct? A. Are -- that's the steps here? Q. Yeah. A. This would be the front door here. (Indicating.) Q. Is that where it is? MR. P. BAKER: No, back there. Q. (BY MR. LEONARD) Back there, where you see the opening? A. Back here. (Indicating.) Q. Yeah. A. Most of my observations were made from this area here, and out in this landing area here. (Indicating.) We never went down towards where the bodies were laying. Q. And again, you're with Detective Phillips, and you don't know where Detective Fuhrman is at this time, right? A. I know where he was the last time I saw him. Q. Right. Okay. And you never went down into the walk -- see the walkway that runs along the north side of the property? A. This here. Q. You never entered that walkway, did you? A. Yes, I did. This walkway back -- this? (Indicating.) Q. Yes. A. Going back towards -- Q. Yes. A. Yes, sir. Q. Okay. Do you recall testifying at your -- at the criminal trial as to what you did during this time period? A. Yes. Q. Do you remember that? A. Correct. Q. Do you remember testifying at the criminal trial that you walked through the -- MR. MEDVENE: Page and line? MR. LEONARD: Well, I'm just trying to refresh his memory. MR. PETROCELLI: Well, show it to him. MR. MEDVENE: There's no showing. THE COURT: Excuse me. Go ahead. Examine him. Q. (BY MR. LEONARD) Do you recall testifying at the criminal trial, that you walked with Detective Phillips out to the landing area near the front door, came back out, and walked around to the front? Do you remember that? A. Yes, I do. Q. You didn't mention anything in the criminal trial about walking down that pathway, did you? A. Correct. I was never asked if I had been down this pathway; you're right. Q. Is it your testimony, now, that at some point during this initial walk-through with Detective Phillips, that you did walk down the pathway? A. This pathway back here. (Indicating.) Q. Yes. A. Yes. Q. You're just remembering that now? A. I was never asked that. Q. Let's go. You can -- A. Yeah. Q. -- go back up. Let me refer you to your criminal trial transcript, 19065 all the way over to 19068. Do you recall being asked these questions by Mr. Bailey and giving these responses, starting at 19065, line 7. Actually, let's start up, actually, over on 19064, line 26. "Q. Can you tell us where you went after your arrival, what you looked at. "A. Yes, sir. Detective Phillips and Sergeant Rossi spoke to me briefly, and Detective Phillips escorted me into the condo via the garage." Do you remember giving that answer? A. Yes. Q. (MR. LEONARD READING:). "Q. Did you view the crime scene from the steps, the front steps? "A. I stayed inside the condominium. I did not go outside onto any steps, sir"; A. Correct. Q. Do you remember giving that? A. Correct. Q. Next question. (Reading:) Did you ever enter the crime scene from Bundy? "A. Yes, I did, sir. "Q. When was that? "A. Detective Phillips, after taking me through the interior of the condominium and showing me some things from the doorway, took me back via Dorothy, to the front of the location, and the illuminated a pathway through some plants that were just south of the sidewalk, where the female victim was lying. And we approached it from that position, sir." Do you remember giving that answer? A. Yes, I do. Q. Okay. When you recounted what you did in that initial walk-through, you did not mention, did you, sir, that you walked down the north pathway; isn't that right? A. There was no discussion of that pathway; that's correct. Q. Did you just forget about that when you were answering questions for Mr. Bailey in the last trial? A. I was never asked about the pathway. Q. Sir, were you asked just what you did, just as I did in this trial, and did you forget at the criminal trial to say that you had walked down that rear pathway? Yes or no? MR. MEDVENE: Objection. Asked -- THE WITNESS: Is that two questions? THE COURT: Looks like two questions. THE WITNESS: Okay. MR. LEONARD: Withdrawn. THE WITNESS: Okay. Q. (BY MR. LEONARD) Are you telling this jury, sir, that you were not trying to recount to that jury at that trial, what you did after Detective Phillips took you through the condominium, you went out to the front steps and then back out? Are you saying that you -- that you are not trying to tell the jury everything you did? MR. MEDVENE: Objection. Argumentative, Your Honor. THE COURT: Overruled. A. Am I trying to tell this jury that I'm not recounting everything that I did? Is that what you're saying? Q. My question is: When Mr. Bailey put the question to you in the criminal trial, were you intentionally trying to tell the -- The jury in the criminal trial that you did not go down that pathway? A. No, I was not, intentionally. Q. You just forgot? A. I did not forget. I was not asked about that pathway. I was asked how we approached the crime scene. The crime scene that I'm referring to is out where the bodies are lying. Within that little, enclosed fence area, and we did not approach that. Q. Did you not give the following answer: "Detective Phillips, after taking me through the interior of the condominium and showing me some things from the doorway, took me back via Dorothy to the front of the location." A. And that is? Q. Did you give that answer? A. I did; that's correct. Q. You did not say anything at that time about going into that north pathway, did you? A. I did not. Q. You forgot to tell the jury; is that what it was? A. I did not forget, sir. Q. You didn't put that in here, in that answer, did you, sir? A. I was not asked that question; you're correct. Q. Now, when you saw -- after you went around front to Bundy, keep that in mind, now. A. Yes, sir. Q. Did you -- did there come a time when you saw Detective Fuhrman again? A. While I was standing on Bundy, that's -- yes, I did. Q. That was about what, 15 minutes after you had seen him earlier? A. No. I would say it would be more in the area of 25 minutes to a half an hour, I would think. Q. Okay. Now, when you first saw Detective -- when you saw Detective Fuhrman the second time, he did not have a coat on, did he? He did not have a sport jacket; is that right? A. Correct. Q. When you saw him the first time, he had a sport jacket on; isn't that right, sir? A. Yes. Q. Now, you have been -- you were -- you were on the plaintiffs' witness list in this case, weren't you, sir? A. Yes, sir. Q. And you actually appeared about a month ago, and you stood out in that hallway and waited to testify, didn't you, sir? MR. MEDVENE: Objection. Relevance, materiality. THE COURT: Sustained. Q. (BY MR. LEONARD) Did you, in preparation for -- for your expected testimony as a plaintiffs' witness, tell the plaintiffs' attorneys that Mark Fuhrman had his coat on and then didn't have his coat on at some point, sir? Did you tell them that? A. Yes, sir. Q. When you showed up here, they told you they didn't want you to testify; isn't that right, sir? A. No, sir. Q. Did you testify? A. No, sir. Q. Thank you. THE COURT: Cross. CROSS-EXAMINATION BY MR. MEDVENE: Q. Lieutenant Spangler, you were asked about your arrival about 2:30 and where you went. You said you went to the rear of the Bundy residence; is that correct? A. Yes, I did, sir. Q. And what did you do -- what did you see when you got there, and what did you do? A. At the rear? Q. Yes, sir. A. I saw Detective Phillips, Detective Roberts, and Detective Fuhrman standing to the rear. Fuhrman and Roberts were over to one side, engaged in a conversation. Phillips, upon recognizing me, walked over to me and had a brief conversation with me. I believe Sergeant Rossi was also in the rear of the location. I got a briefing of what they thought we might have. And then we went into the interior of the condominium. Q. And was it at that time that Mr. Fuhrman had a jacket on? A. Yes. Q. And did you so testify, also, at the criminal trial? A. Yes, sir. Q. Now, you went inside the conversation -- inside the condominium with Detective Phillips? A. Yes, I did. Q. And did you walk to the front steps? A. I'm sorry. Q. Did you walk to the front-step area? A. I walked to the front-door area. Q. All right. And what did you do there? A. I viewed the area where the bodies were laying from the front-door area, staying inside the door, shining my light around that, kind of, you know, trying to get a view from that angle of what we had. Q. Okay. And then what did you do? A. After that? Q. Yes, sir. A. We saw some bloody footprints that were on this pathway; that is, on the north end of your drawing here, that appeared to be leading to the back of the condominium, going out towards the back gate. And we took a look at some of that. There was a hand rail that looked like it had been touched, perhaps, by someone that had a bloody hand. MR. LEONARD: Objection, Your Honor. Calls for speculation; lack of foundation; and outside the scope. (The Court reviews the real-time computer screen.) THE COURT: Appears to be outside the scope. Sustained. Q. (BY MR. MEDVENE) You were -- after you walked through, did you walk through to the rear again, where you started? A. When I went to the rear, we went to the rear through the condominium, not through the pathway. Q. Okay. And then where did you go? A. Around to the front of the condominium, out on Bundy. Q. And did you approach the crime scene again? A. Yes, I did. Q. Tell us where you went. A. This time, we approached where the -- MR. LEONARD: Your Honor, I'm objecting. This is outside the scope. MR. MEDVENE: This is within. He asked him about, I believe, coming -- THE COURT: Overruled. MR. MEDVENE: Sorry. Go ahead. A. We approached where the bodies were laying, by approaching through some foliage that was just to the south of the sidewalk that led up to the front of the condominium. Q. And who was "we?" A. Detective Phillips and myself. Q. Did you have your flashlight? A. Yes, I did. Q. What power is it? A. It's extremely -- it's a very powerful, bright, rechargeable flashlight that the city gives us. Q. Did you shine the flashlight on the crime scene? A. Yes. MR. LEONARD: Your Honor, I object. This is outside the scope. THE COURT: Sustained. Q. (BY MR. MEDVENE) Did you view the crime scene from three different locations? MR. LEONARD: Same objection. THE COURT: That's overruled. A. Yes sir, I did. Q. (BY MR. MEDVENE) Did you only see one glove after you used your flashlight? MR. LEONARD: Object. Move to strike. THE COURT: Mr. Medvene, this witness is only offered to testify wherever he went on his visit, not what he saw. So that's beyond the scope of redirect examination. Q. (BY MR. MEDVENE) When you went to the -- Did there come a time after you were at the front of Bundy -- you told us you viewed the crime scene three additional times -- did there come a time when you were on Bundy when you again saw Mr. Fuhrman or Detective Fuhrman? A. Yes. Q. And approximately what time was that? A. Approximately 3 o'clock in the morning. Q. And was he wearing a jacket at that time? A. No, he was not. Q. And was Mr. -- or Detective Fuhrman in your sight from that time, around 3:05 or in that vicinity on Bundy, until approximately 5:00 a.m.? A. Yes, he was. Q. And at 5:00 a.m., where did he go? MR. LEONARD: Objection. Calls for speculation. Lack of foundation. THE COURT: Sustained as phrased. MR. LEONARD: And beyond the scope. THE COURT: That's overruled. Q. (BY MR. MEDVENE) Do you know where Detective Fuhrman went at 5:00 a.m.? A.: I know where they asked permission to go. Q. And where was that? A. They asked permission to go to the Rockingham address of Mr. Simpson. Q. Incidentally, you were in charge of the -- I think counsel asked you, all the detectives at West LA? A. Correct. Q. And did you instruct your detectives that while robbery/homicide division from downtown was taking over, those detectives were to stay available to robbery/homicide and give them every assistance asked for? A. Yes. MR. LEONARD: Objection. Beyond the scope. Move to strike. THE COURT: It is beyond the scope. I'm going to let it stay. Otherwise, he's going to have to come back to testify just to that. MR. LEONARD: He was here before. THE COURT: I'll stand on what I said. Now, if you go beyond that, I'm going to start striking it. MR. MEDVENE: All right, Your Honor. To save -- whatever Your Honor's pleasure is. There are certain areas -- THE COURT: No. If that's what you're going to do, then you can call him back. MR. MEDVENE: Yes, sir. We'll do that, then. THE COURT: All right. MR. MEDVENE: Thank you very much, sir. Thank you, Lieutenant. REDIRECT EXAMINATION BY MR. LEONARD: Q. Just one question. You kept an eye on Fuhrman from 3:00 in the morning until 5:00 in the morning; is that right? A. I don't believe that's what I said, sir. Q. You said he was in my view; I didn't keep an eye on him. MR. LEONARD: Thank you. RECROSS-EXAMINATION BY MR. MEDVENE: Q. He was in your view because you were in Bundy, in front of the residence, waiting for the robbery/homicide detectives to arrive? A. That's right. We waited out front. Q. And Detective Fuhrman was also out front with other officers; isn't that correct? A. He was one of the officers that waited; that's correct. MR. MEDVENE: Thank you. I have nothing further. FURTHER RECROSS-EXAMINATION BY MR. LEONARD: Q. Do you know where Detective Fuhrman's jacket ended up? A. No. MR. LEONARD: Thanks. THE COURT: You may step down. THE WITNESS: Thank you, sir. MR. BLASIER: You want to start with the next witness or take a break? Whatever you like. THE COURT: Okay. Take ten minutes, ladies and gentlemen. (Recess.) (Jurors resumed their respective seats.) MR. BLASIER: Call Dr. John Gerdes. JOHN GERDES, called as a witness on behalf of the Defendants, was duly sworn and testified as follows: THE CLERK: 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? THE WITNESS: I do. THE BAILIFF: Please be seated, sir. THE CLERK: Sir, would you please state and spell your name for the record. THE WITNESS: John C. Gerdes, G-e-r-d-e-s. DIRECT EXAMINATION BY MR. BLASIER: Q. Good morning, Dr. Gerdes. A. Morning. Q. Dr. Gerdes, can you please tell the folks on the jury here, what your occupation is? A. I'm the clinical director of a laboratory called Immunological Associates of Denver. Q. Are you a molecular biologist? A. Yes, I am. MR. BLASIER: Could I have a new number, Erin, for the C.V. THE CLERK: 2263. (The instrument herein described as Curriculum Vitae of Dr. John Gerdes was marked for identification as Defendants' Exhibit No. 2263.) Q. (BY MR. BLASIER) Let me show you what's been marked as 2263. Is that an accurate copy or current copy of your curriculum vitae? A. It appears to be an accurate copy as of the end of November. Q. And can you please briefly describe your educational background in the field of molecular biology? A. Yes. I received a Bachelor of Science degree, University of Wyoming, in microbiology, and proceeded to U.C.L.A., University of California at Los Angeles, where I did a Ph.D. thesis on microbial genetics and also microbial pathogenesis. And microbial genetics is a predecessor field, if you will, of molecular biology. And then I did a post-doctoral fellowship, again at U.C.L.A., investigating the molecular biology of herpes simplex virus and investigating the mechanism of causing latent infection in animal models. And subsequent to that, I went to University of Colorado in Denver, Colorado, Health Science Center, the medical school, where I was an assistant professor for four years. Q. What topics did you teach there? A. Primarily virology, which is a study of viruses, and some molecular biology for medical students. Q. Go ahead. A. Then I went to Hawaii for about five years, where I taught at a community college, and also was a quality control microbiologist at this time. And I returned to Denver, spent one year as director of a laboratory investigating multiple sclerosis and investigating the detection of viruses in brain tissue from autopsies of multiple sclerosis patients and trying to find out if we could determine or identify a virus as a cause of multiple sclerosis was our goal. And then I joined -- or was hired in my current position at Immunological Associates in 1988. Q. And the study of viruses and what you described in your educational background, does that deal with issues relating to DNA? A. Yes. Q. And how so? A. Well, a virus is simply a piece of DNA that's wrapped in a protein coat. Either DNA or RNA. RNA is a second type of nucleic acid. In investigating viruses, you're also investigating nucleic acid. Q. Tell us briefly what is your position in the lab that you work at now? A. I actually have three titles. As clinical director, I'm responsible for the testing that involves detection of infectious agents and any clinical chemistry types of tests we do related to -- specifically what we are is a transplant laboratory, so organ transplants. And what we do is we investigate infectious -- obviously, we're interested in whether or not -- if you have a potential donor, it's our responsibility to ensure that not only do you match the immune system of that particular donor organ with the recipient, but also ensure that it's not infectious. So you need to look for infectious agents to ensure that you don't inadvertently pass an infectious agent into the recipient and therefore give them an infection. So that's my clinical title. And I'm also the director of DNA parentage analysis. Our lab does paternity testing or parental testing. It is for the purpose of the legal -- it's an interface between science and the legal or law and involves any situation in which there's a question as to the -- the parent of a child. So that would -- can determine whether a father is indeed the biological father or not. That kind of question, that involves DNA testing. We use both RFLP type of testing as well as PCR base testing now for that purpose. And my third title is director of research and development, and it's my responsibility to identify testing that's new, testing that can be helpful for us to introduce into the laboratory, validate it for that -- whatever purpose that new testing would have. And in addition, I've received a grant to investigate a new strategy of doing DNA testing in such a way that it could preclude the possibility of contamination. Q. In the work that you've done in your laboratory, have you become familiar with the DQ Alpha HLA region of the DNA, the DQ Alpha gene? A. Yes. The HLA region actually involves several different gene loci, and DQ Alpha is one of them. And we're very familiar with that because of the fact that the other thing our laboratory does -- and I actually was involved in setting this up, but we now have another Ph.D. that has this department of the lab. But what we do is molecular DNA dot blot base testing for the purpose of matching the organ or matching a bone marrow transplant for a recipient. That's by DNA base testing of a dot blot format and that involves matching in the HLA region because the HLA region is that area of DNA that's involved in the immune recognition. So that's the critical area that you need to match between the donor and the recipient to ensure that the -- there's no immune rejection of the grafted bone marrow. It's very critical that you match that very precisely so the individual doesn't reject their transplant. Q. Now, are you familiar with the DQ Alpha testing kit that is used for forensic applications, or analysis of the DQ Alpha gene? A. Yes I am. Q. Now -- incidentally, with respect to the DQ Alpha gene, how many alleles are there in the DQ Alpha gene? A. Well, the kit detects 6 alleles. In fact, there are -- there are more alleles than that; perhaps twice that many. And there are new ones discovered all the time and -- but the kit was designed to detect 6, but in fact there could be as many as 12 to 14 now. Q. If you describe that system as only having 6 alleles, that would be inaccurate? A. There are subtypes of those alleles, yes, that's -- Q. Now, in your work with transplants, in terms of matching the donor to a recipient, you use the DQ Alpha gene system, do you not? A. Sometimes we do, yes. Not always. Q. I'm sorry? A. Not always. Q. Is the 6 allele system that is in the kit used in forensics, adequate for transplant technology? A. No. We use a direct dot blot method that detects more of the -- all of the alleles, in fact. Q. And why is that important? A. Well, in -- in a situation where you're doing a bone marrow transplant, you want to match as precisely as you possibly can. And so we use the highest -- the test with the greatest discrimination in order to -- to do that matching. Q. Now, let me ask you about professional societies that you belong to in areas relevant to your testimony. Tell us what those are? A. Well, I belong to the American Society for Histocompatibility of Immunogenetics, which is ASHI for short. That's an organization that's responsible for accrediting laboratories for the purpose of doing HLA diagnostics, specifically HLA diagnostics relating to transplant work. I'm a member of the American Association of Blood Banks, AABB for short. AABB is the organization involved in accreditation and inspection of laboratories that do DNA testing for the purpose of parentage testing. I belong to the American Society of Microbiology Clinical Ligand, L-i-g-a-n-d, as an associate. A ligand is just a target. It's another word for that. It's a clinical target. This organization is involved in investigating that, or basically it's a collection of individuals whose job titles involve clinical testing. And I believe -- Q. American Society for Clinical Virology? A. Yes. That's a society for virologists and it's a collection of directors of clinical virology laboratories. Q. During some point in your career, did you become interested in the forensic issues of different technologies? A. Yes. Q. When was that? A. I believe that was back in 1990. At the time, we were doing DNA testing for parentage testing and had an advertisement that was in the yellow pages for that purpose. And there was a local murder case and I -- the story is that the attorney just looked me up in the yellow pages and called me and said would you look at this testing. And I did. And I had some concerns and expressed those concerns about that particular case. And then subsequent to that, I was invited to give a talk at a Defense Attorneys Conference in Colorado, and discussed specifically RFLP in that conference. But I met several individuals; Simon Ford and Bill Thompson. From that time on I started to get referrals. After discussing my concerns with them, I started to get referrals of cases, forensic cases. Q. In your -- your work preparing forensic cases, have you been called upon to visit forensic labs? A. Yes. Q. Approximately how many? A. I believe I've actually visited nine labs. I've reviewed the protocols of 16. Q. Now, when you say reviewed the protocols, what does that mean? A. Well, any laboratory has a written document that is called their standing or standard operating protocol. And what that is is it's just a written -- the written directions, if you will, or instructions that the technicians need to follow. And so by reviewing those instructions, one can determine the policies of the laboratory without actually going to the laboratory. Q. And as far as the labs that you visited, is one of those labs a Los Angeles Police Department SID lab? A. Yes, it is. Q. Is one of those labs the Department of Justice DNA Lab -- A. Yes. Q. -- in California? Is one of those labs Cellmark Diagnostics in Maryland? A. Yes. Q. Have you reviewed the protocols for each of those three labs as well? A. I have. Q. When you actually visit a lab, what is it that you're looking for? A. Well, my usual procedure in looking at a laboratory is I ask them first to give me a tour of the lab, and what I look for in a tour of the lab is if, for instance, they're taking PCR base testing, I'm looking for the organization of the laboratory in terms of how the laboratory deals with common problems in PCR testing, mainly the fact that you can have contamination. So we look for how they deal with that, and what precautions they take for that, and whether their laboratory -- what their laboratory -- the appearance of the laboratory in terms of all of the aspects that might have to do with that. After going through the laboratory tour -- and during the laboratory tour I usually just ask the director to tell me, well, assume that a specimen just came in the door, it's from a case, how would you handle that specimen, and walk me through the physical locations of that evidence of that specimen, that reference specimen, and how would you do that. After that, I usually ask to see records of all of the testing that has been done, that tracks the test that's of interest or that -- the case that I'm looking at. And the reason for that is to get an impression of how good the laboratory is in term of not having incidents of contamination. So I can look at the control strips that are run around the same time as the case that I've been hired to look at. And I get some impression about how clean the laboratory is, how well their protocols -- even though they have -- they may have a very good written protocol on paper, but that gives you a window of looking at how well those protocols are actually followed, or how effective they are at actually preventing contamination. You can look at a window of time around the testing as far as their control strips, look at a lot of those control strips and see if there's any problems in the lab. Then I ask to look at their proficiency testing. Proficiency testing is just a -- a mechanism of testing the laboratory to see how effective their -- their typings are, and there -- there's a number of organizations such as the College of American Pathology that send out blind specimens that the laboratory doesn't know the results of, and they just type those and then send back the results. So I look at those testing events to see how well they did on those tests. Q. Are all those steps important in assessing the reliability of test results in a particular case? A. Absolutely. Q. Incidentally, your lab, is your lab accredited? A. Yes. Q. By whom? A. Well, we're accredited by a number of organizations. There's actually four of them, and I've mentioned them already. The American Association of Blood Banks accredits our parentage testing by DNA. The American Society of Histocompatibility and Immunogenetics, or ASHI, accredits our HLA testing, and that includes HLA DNA testing. The National Marrow Donor Program doesn't actually accredit. They're an organization that is responsible for typing specimens for the purpose of bone marrow transplants. They only contract labs that are ASHI accredited so they depend on ASHI accreditation, but they -- they perform what are called blind proficiency for their contract labs. What that means is we have a certain number of individuals we have to do the typing on every week, and a percentage of those, about 10 percent of those are actually controls that -- we don't even know which ones are the controls. So the specimens that come in are all just given numbers -- accession numbers. That just means each sample that comes in is given the next number in sequence. So we don't know who the individuals are, we don't know which ones of those specimens are controls. We run those tests, and then every week we're graded in terms of how well we've done on the control samples. So they're a proficiency organization as well as the regular industry organization. And then there's the CLIA. This is the Department of Health and Human Services. The federal law for clinical diagnostic testing is called CLIA, Clinical Laboratory Improvement Act of '88. Q. That's a federal law? A. That's a federal law. According to that federal law, inspectors, I think it's every two years, inspect your laboratory and accredit those laboratories for the purpose of doing any specimen that will be used in human diagnosis. And we're accredited by them as well. Q. Is it accurate to say that to maintain your accreditation, you have to subject yourself to the blind proficiency testing? A. That's true in the case of NMDP, the National Marrow Donor Program. The CLIA regulations at the present time, they all -- all of these accrediting agencies require proficiency testing, but the distinction is that only NMDP requires them to be blind in terms of not knowing which ones are the test specimens. All of the others involved, on a monthly basis or on a quarterly basis, specimens that come into the laboratory that need to be tested, but we know that they're quality control specimens that are coming in the door. But we have to do proficiency for all of those organizations. Q. Do any of those accrediting agencies have any authority over forensic labs? A. No. Q. And is it accurate that the Los Angeles Police Department Scientific Investigation Division lab is not accredited by anyone? A. That's accurate. Q. Now, approximately how many cases have you worked on -- how many forensic cases have you worked on since you became interested in approximately 1990? A. There are 35 that I've actually testified in. There are perhaps another half dozen where I've consulted but I did end up testifying. And there's perhaps two or three cases right now that I'm involved with. Q. And the 35 where you've testified as an expert are in approximately how many states? A. I'd say somewhere around 8 or 10 states. I'd have to count to make sure. Q. And is it accurate that all those times you've worked for the defense in a criminal case? A. That's true. Q. Your lab doesn't do any -- any forensic testing for prosecutors, does it? A. No. With the exception of parentage testing. Q. Paternity testing? A. Yeah. Q. Have you now -- you worked on the Simpson criminal case, correct? A. Yes, I have. Q. And you spent a considerable amount of time reviewing materials for the Simpson criminal case, did you not? A. I did. Q. Now, you already indicated you reviewed all the protocols and did lab visits for all three labs. Have you reviewed the collection procedures used in this case by the Los Angeles Police Department? A. Yes. Q. And have you reviewed testimony by the various people who collected the evidence in this case? A. Yes. Q. And why don't you tell us which testimony you reviewed about that topic? A. In terms of sample collection, I believe that was Andrea Mazzola and Dennis Fung. Q. How about in terms of processing of those samples once they're collected, what have you reviewed with respect to that? A. That would be Collin Yamauchi as well as the other DNA individuals, Robin Cotton and Gary Sims. Q. Have you reviewed all of the PCR testing results obtained by all three of those labs in this case? A. I have. Q. Have you also reviewed a video that was prepared by the Los Angeles Police Department to show how they used -- how they collected evidence in this case? A. Yes. Q. We'll get to that in a minute. Do you have an opinion with respect to the risk of error in the results in this case due to contamination at the Los Angeles Police Department. MR. LAMBERT: Objection, irrelevant, violative of the Court's order. THE COURT: At the Los Angeles Police Department. Sustained. MR. BLASIER: Can't elicit his opinion -- THE COURT: No. MR. BLASIER: -- about the results in this case? THE COURT: I think I made my ruling clear yesterday. Q. (BY MR. BLASIER) As a molecular biologist, Dr. Gerdes, and a DNA laboratory director, do you have an opinion about the specimen handling and sample methods used by the LAPD personnel in this case? A. Yes. Q. And what's that opinion? A. I believe there's an unacceptable risk or chance in the way those samples were handled of there being cross-contamination. Q. Do you have an opinion with respect to the reliability of the PCR testing results obtained in this case by the LA Police Department? A. Yes. MR. LAMBERT: Objection, Your Honor, same objection as before. This is trying to incorporate the outlawed testimony. MR. BLASIER: I'm asking just about the results in this case, Your Honor. THE COURT: Mr. Blasier, I know you understand my ruling and I trust you are being guided by it. MR. BLASIER: I am. THE COURT: Are you? MR. BLASIER: I'm just asking about the results in this case. THE COURT: I asked you a simple question and you're answering yes. So you may proceed. Q. (BY MR. BLASIER) Do you remember the question? A. Can you repeat it, please. Q. Do you have an opinion -- a professional opinion, as a laboratory director, and given the evaluation of the results in this case that you have done with respect to the reliability, to a reasonable degree of scientific certainty, of the PCR results obtained in this case by the Los Angeles Police Department? A. Yes. Q. And what's that opinion? A. Again, I feel that the sample collection, manipulation and PCR setup protocols are such that there's an unacceptable risk of cross-contamination. Q. Do you have an opinion, same question, with respect to the PCR results obtained in this case by the Department of Justice? A. Yes. Q. And what's that opinion? A. Well, I believe that the -- the results -- the Department of Justice results are reliable. However, with the qualification that whatever -- their typing went through the LAPD first, and so if there were any errors made in terms of cross-contamination at the LAPD, the Department of Justice would -- Justice would simply repeat those errors. The other qualification is that the Department of Justice has an artifact that's frequently found in their testing strips which is a 1.3 allele, which makes the interpretation of results in a number of specimens suspect. Q. Do you have an opinion with -- we'll talk about that in specific. Do you have an opinion, same question, with respect to the PCR results obtained by Cellmark Diagnostics in this case? A. Yes. Q. And what is that opinion? A. It's similar to the DOJ, and that is that I believe the Cellmark DQ Alpha system is -- poly marker system, excuse me, or both, is run reliably at Cellmark laboratories. However, they are going to again retype any errors or just amplify those errors that occurred prior to the samples coming to them. And again, there are some occasions of contamination in a number of the specimens -- specific specimens that were run at Cellmark. Q. In this case? A. In this case. Q. Okay. Now, we've had some testimony about the comparison of the use of DNA technology in the clinical setting versus the forensic setting. You have some views about that, correct? A. Yes. Q. I'd like to put up -- MR. P. BAKER: The number should be on the back. MR. BLASIER: 1248. (Exhibit 1248 displayed.) (The instrument herein described as a board was marked for identification as Defendants' Exhibit No. 1248.) Q. (BY MR. BLASIER) Doctor, you recall seeing this board in the criminal trial? A. Yes. Q. Is there -- there is a significant difference between the type of DNA testing that you do, or that's done in a clinical setting, and in the forensic setting with respect to the -- the type of samples that are used? A. Definitely, yes. JUROR: Can you move the board? MR. BLASIER: Sure. (Mr. Blasier adjusts board.) Q. (BY MR. BLASIER) What are the differences on samples? A. Well, the samples -- in a clinical setting we receive samples that are sterile samples, that have been collected by a trained nurse or individual who knows how to follow what's called an aseptic technique, which is a manner in which to collect a specimen with sterile protocols so that it's a clean specimen. Q. Why is that important? A. Well, it's extremely important especially if you're doing something that involves identity testing. Because of the fact that's in a clinical sample, then we can guarantee that that came from a single individual. And so if there's any spurious results, meaning that we have some signals on our typing strips that shouldn't be there, then we know that there's something wrong, and we need to have that specimen redrawn, and we can retype it and repeat it. Now, in a forensic setting, the samples are -- are dirty, they're not aseptically collected, they can't be because of the nature of -- just crime scenes, and therefore when we have those unusual results, it's very difficult to determine with any certainty whether or not there was a problem with the way the test was run, or there's contamination, that is, human DNA got in there that shouldn't be in there. That's what the definition of contamination is; there's foreign DNA, somebody else's DNA somehow got into that sample at some point, or that there's some artifact that happened in the way that the testing is done. You can't really distinguish between those possibilities. So basically -- and the other possibility is that it's a true mixture that, yes, at the crime scene there was more than one person there. And obviously, it's very important to be able to distinguish between whether an allele that you observed there is a second individual contributing to that sample. It's very important to understand, or be able to say with certainty that that additional allele that is there is due to in fact somebody at the crime scene as opposed to an artifact that happened in the lab. Now, an artifact is just -- it's a defect. And these dot blot based testing systems where we can sometimes get weak signals on these strips that are due to an artifact, due to a defect in the way that the testing is set up, and so it's not a true result, it's a mistaken result. So it's very important to be able to distinguish between whether there's a true result there or a mistaken result, obviously. And in the clinical setting we can because we know that the specimen we get came from a single individual, and we know that anything there that's unexpected, as far as additional signals or alleles indicating an additional person, means that there's something that has gone wrong in the testing, and so you can redo the testing. Q. Now, is there a difference between forensic applications of this technology and clinical applications with respect to the size of samples that you have to work with? A. Absolute. Absolutely. Q. In what sense? A. Well, in a clinical -- in the vast majority of clinical testing you have a generous sample size, a blood specimen that's asteriley collected blood specimen, you can ask them to collect whatever amount you need for the particular test. And usually, for these PCR-based tests you don't need a lot. Certainly, you can request a blood tube which contains around 6 to 8 cc's of blood. So that's plenty. That's a lot of -- of blood to be able to work with that's clean blood. In a forensic setting there's frequently very minuscule size samples; a small blood drop that's found at the crime scene, a hair that's found at the crime scene, the very small flecks of blood, and it's much more difficult to get a correct typing result when you're limited in the amount of material you have to start with. Q. Incidentally, let me ask you, can you give us an estimate of the number of nanograms of DNA in one and a half cc's of blood? And I don't mean to put you on the spot. A. Well, let's put it this way: A drop of blood would have about a thousand nanograms, and a drop would be about 50 microliters. Q. So there would be about 20 drops in a cc? A. Right. Q. Which would be about 20,000 nanograms? A. Correct. Q. So then there would be about 30,000 in one and a half cc's? A. Correct. Q. And is it accurate that in the samples in this case, in the Simpson criminal case, in the -- in the civil case, the amount of DNA involved in many of these samples that were subjected to PCR testing is extremely small? A. Yes. Q. Now, is there a difference in terms of reliability of results between the clinical setting and the forensic setting with respect to how often samples have to be handled? A. Yes. In a medical setting, again, we get a sample which was aseptically collected, it's transported to the laboratory, and then a specimen is withdrawn directly from the blood tube, and the DNA is extracted directly from there. In forensic -- in a typical forensic case, there are swatches and multiple swatches that are taken of stains of blood, for instance, and then those are manipulated in terms of they have to be dried, they have to be packaged at the crime scene, they have to be dried so that you -- that you don't have degradation, they have to be transferred into the bindles. And so there are multiple manipulations where they're like shuffling these little swatches around. Every -- each time you manipulate a sample, it; number one, increases the possibility of an error occurring; number two, increases the possibility of the introduction of foreign DNA or contaminants into those particular samples. Q. Is the issue of error rates of a particular laboratory important in assessing the reliability of results of a particular lab? MR. LAMBERT: Objection. In light of the admission, it's irrelevant in this case. THE COURT: As long as you stay away from what I told you to stay away from. MR. BLASIER: I am. A. Yes, I believe error rates are very relevant. And it has to do with the fact that in a typical identity test DNA figures will be quoted in terms of the likelihood of a match being in a certain population, and then -- and they're very high numbers. And yet if you -- if you look at the testing of the usual laboratory in a clinical setting, for example, where there have been control studies that have been done, the usual type of error rate in a clinical lab is somewhere around 1 percent. It has to do with the fact that there's human error, and that's about the rate at which people make mistakes. And that's in the best clinical labs. And so error rate generally tends to be much higher than the gene frequency estimate. And so in my mind, it just makes sense that you would look at both of those and say that, well, if the gene frequency is 1 in 10 billion or whatever, but the lab makes a mistake in 1 in 100, you need to know both of those, all of that information, in terms of how much weight to put on that evidence. Q. Now, the number 1 percent, does that come from evaluation of proficiency testing that's required to be done? A. Yes. Q. Now, with respect to laboratory standards -- I think you already talked about this. Basically, the clinical labs have very stringent standards about sample handling and how they process a sample from start to finish, correct? A. Correct. Q. In your experience, do the procedures used by the police department SID division in this case, required the same -- require the same kind of rigorous controls? A. No. Q. Now, in the DNA testing that you do, and that's done in the clinical setting, do you ever get into the statistical controversy in terms of trying to predict percentages of populations that might fit a particular pattern? A. We do statistics in association with parentage testing which is not identical but similar. I'm aware of the statistical issues. Q. That's a situation where you know all three contributors, you know who they are -- A. Correct. Q. -- after typing? A. Correct. In a typical clinical setting, an HLA typing, where we do the typing for the purpose of matching donor and a recipient, there's no statistics involved at all. So you really don't -- it's not a concern, it's not something that you're -- that's an issue because, you know, you have both individuals you try to match, they're known individuals, and you're just asking the question, does the sample from individual 1 and individual 2, do they match. And you're not concerned about, well, how often would that happen at random in the population. All you're really concerned about is how close the match is between those two specific individuals. So statistics aren't even involved. Q. Does the affect of environmental conditions on a forensic stain, does that affect the ability, to or the reliability, of results that you can ultimately get from DNA testing? A. In my experience, yes, because it's -- again, it's not when you -- take a specimen that's been taken off of carpet; there can be carpet dye or shampoo or anything in that carpet. Or off of a dirty sidewalk; dirt has been shown to interfere with the extraction and the ability to type DNA. So -- and in a forensic setting there's an infinite number of different substrates -- those are called substrates, different areas where you can find a specimen. And all of those can affect DNA typing. Q. In the clinical setting are you ever put in a situation where you collect a stain off of a ground somewhere where you don't know how long it's been there or what conditions it's been subjected to? A. No. Q. Now, let's talk about contamination in DNA testing. Incidentally, is contamination a big issue in the clinical setting as well as the forensic setting? A. Yeah, this is a big issue for anyone who uses this technique, the PCR technique. Q. Why is it a big issue with the PCR technique? A. Well, because of the fact that this is an extremely sensitive technique. It literally has the potential of detecting a single copy of the gene you're looking at. And so with that extreme sensitivity, that means that it's very easy if you're working at very -- at sensitivity levels where you're demanding that the test detect very low numbers of copy, it's very easy for a foreign DNA or extraneous DNA to be introduced into that sample and appear as a mixture, which would be a false mixture if it's accidentally introduced, and that's called contamination. And with this technique, it's so sensitive that it literally could wipe this bench and get somebody's DNA, whoever sneezed here last, probably, you could get their DNA type off this bench. It's that sensitive. So it's sensitive enough that you begin to pick up DNA that's sort of a background DNA in the environment. And in a laboratory that creates problems because, obviously, you're trying to only get a DNA type for the specimen you're interested in. And the fact that it is so sensitive to that extraneous DNA makes it extremely difficult to control that. Q. Does that sensitivity come from the fact that small amounts of DNA in the PCR process are multiplied or amplified to many copies? A. That's right. The PCR, polymer chain reaction, it basically starts with a very small amount of material and then copies that millions and billions of times so that you have many, many copies of what you started with. Q. Incidentally, let me look at -- MR. BLASIER: What number is this? MR. P. BAKER: This is 987. (The instrument herein described as a chart was marked for identification as Defendants' Exhibit No. 987.) (Exhibit 987 displayed.) Q. (BY MR. BLASIER) Doctor, have you ever seen this chart before? A. I believe so, yes. Q. Can you just tell us approximately how big -- What's another size of 20 nanograms of DNA? 20. A. 20 nanograms would probably be somewhere around five millimeters to a centimeter, something like that I would think. Q. About the size of the head of a pin? A. Yeah. Well, a little bigger than that, I think, for 20 nanograms. Q. How about for 2 nanograms? A. That would be about the size of a head of a pin I would think or -- MR. BLASIER: Now, you can take that down, sir. (Exhibit 987 removed from display.) Q. (BY MR. BLASIER) You remember there being discussions in this criminal case about whether DNA could fly or not? A. Yes. MR. LAMBERT: Objection, irrelevant to what was discussed in the criminal case. THE COURT: Overruled. Q. (BY MR. BLASIER) Can you describe some of the ways in which DNA gets moved from one place to another without you being aware of it. A. Yes. One of the most subversive ways, and especially in forensic cases, one that is of greatest concern is what's called cross-contamination. There's definitions for different -- so basically three different ways you can contaminate: The first one is cross-contamination. That has to do with the fact that if you touch an item that has DNA on it, such as a blood stain that's a large blood stain, you can get some of that on your glove, and because we just said that it's very, very small, essentially you wouldn't even notice or see it on your glove, you can still have plenty of DNA there to transfer. What can happen is you can get that DNA on your glove, it doesn't have to be a glove, it can be the instrument that you pick that up with, or whatever, and then if the next item you handle happens to be an item that's very -- is an evidence item that has very little DNA, where it's extremely degraded, then you can transfer the DNA from the larger amount to the second one that has the smaller amount. And when you type that in the laboratory, what can happen is now you'll see a match between the two items, but the match was created by the accidental transfer that occurred onto your glove. Now, that can happen -- as I said, it's extremely subversive. It can be as simple as perhaps you collect an item and you don't change your gloves, and pick up a pen. Now it's on your pen. You may change your gloves but then you pick up the same pen. Now it's on your new glove. And you can see how easy it is to really transfer DNA around without being aware of it. And you can think back and you really don't remember how you possibly could have touched one item to another. And there are techniques that allow you to avoid that. And it's basically developing a second sense of the -- those kind of -- of motions and movements that you don't even think about. And in microbiology it's called aseptic technique; you learn -- if you work with an organism that's a dangerous organism that can infect, you learn not to do that kind of thing. Now, even if -- even in the best laboratories it can still happen that you have an inadvertent transfer from one item to another; cross-contamination. It can happen at any stage, at any time when samples are manipulated. Q. And could anything happen if you wear glasses, and happen to adjust your glasses as you're doing your work? A. Yes. It's those kinds of subconscious movements. You're not aware of it. You might -- I have -- everybody who wears glasses has a constant habit of just adjusting them. They fall down on your nose. But if you're doing this kind of technology, before you adjust your glasses, you'd have to change those gloves because you put it on your glasses, then you're not aware of it, next time you touch your glasses, it's on your glove, you transferred, now you're transferring to the next item. So there are an infinite number of ways, when you really think about it, how you can transfer things without being aware of it, from one item to the other. Q. Now, one of the things that you evaluated in connection with the results in this case was the procedures used by the Department of Justice to protect just against that kind of contamination? A. Yes. Q. And what -- And that was you observed Gary Sims and the techniques he used? A. Yes. Q. Did he use special techniques with respect to the paper that he writes his results on? A. Yes. I mean he -- I think Gary goes-- he does an excellent job of trying to avoid this kind of problem. And he goes -- he's tried to think of everything. So, for instance, if you were to have notes -- and as you know everything has to be documented. And in these kinds of cases there's -- every time you're handling a specimen you're going to be recording that fact, and if your DNA happens to contaminate those notes, the notes following the specimen, so now it's on the notes. And you handle the notes the next time, now it's going to be on the -- even if you got fresh blood, you transfer it off the notes onto the next item, or at least that's potentially possible. He actually takes the notes and he exposes them to UV which kills DNA between each manipulation. That's how paranoid you get at the possibility of this kind of transfer. Q. Incidentally, does the Los Angeles Police Department's SID division do that at all? A. No. Q. Are there other procedures with respect to cleaning the work area between handling samples? A. Yes. Q. What sort of procedures? A. In most forensic laboratories, in between each item you would totally change the paper, preferably bleach the area down. Bleach kills DNA. Bleach the area down and change the paper in between each manipulation of every evidence item. It makes it an extremely slow, painstaking process, but it's a precaution that most forensic laboratories feel is necessary to avoid this kind of cross-contamination transfer. Q. Does LAPD do -- do they bleach the table between samples? A. No. Q. Now, is there another way to illustrate how a substance like DNA can move from one place to another without you even knowing it, an analogy with respect to getting a cold? A. Yeah. It gets back to your question about can DNA fly. Well, it doesn't have wings so it can't fly in that sense. But certainly DNA is very analogous to an infectious agent in terms of -- as I said, a virus is DNA wrapped up in a protein coat. And basically, it can introduce -- be introduced into what is called an aerosol. An aerosol is fine droplets of moisture that can be suspended in the air. And those drops of moisture can then attach to dust, and it can float around in the air for actually quite a while. And that's -- that's really not farfetched because the analogy is catching a cold. The way we all catch a cold is exactly by that transfer; someone sneezes, I've got droplets in the air and you happen to walk into the room a few minutes later and breathe that in. Now I've transferred the virus from individual 1 to individual 2. It's a very small amount of material that's transferred. When you breath it in, the virus replicates itself, copies itself like the PCR, and it gives you the cold. So if you think back, how many of you really know the last time you had a cold, can you identify a specific incident or a specific individual you know gave you that cold. Most of us can't. You have no idea. You just know I caught a cold somewhere, and along the way you had to have -- to have had DNA transfer into your bodies for you to catch that cold. So it shows you that this PCR process is every bit as sensitive as an infectious process, and in detecting that transfer. Q. Let me ask you a little bit more about contamination. You say there are three kinds. The first one was cross-contamination? A. Yes. Q. Can you explain that briefly? A. Cross-contamination is the transfer of DNA by manipulating an item and then accidentally transferring DNA on your instruments, or whatever, pencil, notes, whatever, to the next item. Q. And what are the other two kinds of contamination that you can see in these kinds of tests? A. The second kind of contamination is called reagent contamination. Reagents are the fluids or liquids that we have to use for the methods of extracting and amplifying this DNA. So we mix together these -- it's kind of like if you're baking. It's the ingredients list. You mix these ingredients together. That's what allows you to create an environment so that the DNA can copy itself. So you have to add a certain amount of this and a certain amount of that in order for it to -- for this reaction to go. Those reagents are generally in much larger volumes than you would use just to do a single item. So, for instance, you might be able to do 100 or a thousand or 10,000 different tests by using these bottles of reagent. So if you have a bottle that's like the size of, you know, a typical mouthwash bottle type size, then you're only using a drop at a time. And that means you're going to be going in and out of that bottle a lot of times when you do this DNA testing. And every time you open the lid, you're exposing that bottle to the possibility of DNA falling in there. And in fact, that does happen. And when it happens, then if you were to just take the fluid that you need to put in -- the ingredients you need to put in the PCR, and you leave the DNA out, then all of the sudden you start seeing DNA where it wasn't there before, because it actually accidentally got introduced into that bottle, then that's going to be introduced on top of the sample that you're trying to test. So that's called reagent contamination. Q. And is it important because of that potential problem to change chemicals frequently A. Yes. Q. Did you make an observation, in your visit to the LAPD lab, with respect to the chemicals that they were using in their DNA lab in the tests they did in this case? A. Yes. MR. LAMBERT: Objection, irrelevant, beyond the scope. THE COURT: Sustained. MR. BLASIER: In this case. THE COURT: If he was present during the testing of the evidence in this case, you may examine him. Q. (BY MR. BLASIER) You're talking about chemicals that were used in the lab in the testing in this case? A. Yes. The lots of some of the reagents that were used in this particular case were up to six months old. Q. Why is that? A. Well, because the longer you keep those reagents around, the higher the risk or chance of some of that DNA -- extraneous DNA being introduced, and it being a contaminant. Q. How often do you change the lots of reagents in your lab? A. It depends on the reagent. Most of them are aloquated (phonetic) so they're used only once. If we're doing an extremely sensitive technique, we use a technique to detect the virus, for instance, that is present in very low copy in transplant patients, and we have everything set up so we only use that once and throw it away. It's disposable. We never go into it twice. Other techniques where we're not working at quite as high sensitivity such as HLA typing, reagents, we probably change every week or perhaps every two weeks. Q. Now, what's the third kind of contamination? A. The third kind of contamination has to do with the fact that in this process of PCR, what you do is you identify a very specific target, piece of DNA, and you copy that millions and billions of times. If you do that in a laboratory over and over, day in, day out, that's your routine, you're always copying that same -- same piece of DNA, eventually you get a buildup. And those billions of copies are being handled in the laboratory in the same environment where you're trying to find, you know, a few copies. And so it's very easy to cross-contaminate the previously amplified product and -- to what hasn't been amplified before, and then reamplify it. And that's called amplification carryover, amplification contamination. Q. Is there a term that you're familiar with called one-way work flow? A. Yes. Q. Can you explain that. A. When, as I said, I go into the laboratory and look at the physical design of the lab, that's pretty much what I was looking for, this one-way work flow. It has to do with the fact that in order to try and avoid this contamination with the previously amplified materials into things they're trying to evidence, items or whatever, that have very low copies, if you design the laboratory so that you always have the evidence or the small copy numbers items come in the door, and then as you go through the process and end up with the amplified material, you never have cross-talk between or physical connection between the post amplification area and the preamplification area. Then you can, to a certain degree, avoid this kind of transfer from amplified product contaminating the unamplified materials. Q. Now, the PCR test that was done by LAPD in this case, what was their procedure with respect to this amplified product and what they did with it? A. Well, they amplified -- they do the extraction in one location or building, and then they go to a second building to do their post amplification. That's good because that -- I mean you can't get better separation than that. But -- Q. And that's at Parker Center, where they -- A. Correct. Q. Okay. A. Correct. They do it at Parker Center, they do the amplification. And at Piper, they do the preamplification. And then they take the amplified product and do their gels back at the original lab. So they're going not one way, but this direction and then back. (Indicating.) A. (Continuing.) And even though it's done in a separate room, it still means that amplified product is being carried back to that lab and has a potential of cross-contaminating or contamination by this method. Q. Let me ask you some questions about controls. A. Okay. Q. What sort of controls are used or were used in this case to -- well, first of all, what's a control? A. Well, because we're aware that there are problems, there are potential problems in terms of this contamination issue, especially, or, you know, artifacts that may happen in testing, controls can be designed to try and detect those artifacts or those contaminants, and the controls then are used to determine whether or not there's an issue -- that those are issues. Now, the problem with controls is sometimes, not always, do those controls detect a problem. But if they do detect a problem, then it does tell the laboratory that -- that they have suspicious typing results and they need to repeat it or do something to it. It affects how you interpret that result. So the kind of controls then is -- we start back at where you start. You start where you manipulate the specimen. So at the crime scene, when you're collecting the specimen, there's a control called a substrate control, which is taken at the same time that you collect the evidence item. And what that is, is, it's just a blank piece of swatch that is ideally manipulated immediately after manipulating the evidence item that was collected. And that -- that swatch should be a sterile swatch that doesn't have any DNA at all on it. When this goes -- then, from that point on, you have to intersperse one of those control substrate swatches in between every evidence item; so you do an evidence item which has DNA, a control substrate swatch which shouldn't have any DNA, an evidence item that should have DNA, a control substrate swatch that shouldn't have any DNA, and so forth. Now, you not only have to collect it that way, in order for this control to be effective, you have to be absolutely sure that at every subsequent step that same sequence is followed, and that is you always manipulate the control swatch at the same time you manipulate the evidence swatch, in the same way, with the same tools. And that hopefully would allow you to pick up this cross-transfer because if there's cross-transfer it should presumably be transferred onto that control. Q. Is there any -- A. That's -- Q. Is there any indication whether or not that procedure was followed in this case by LAPD? A. It was. Q. And is there any indication at some point it was not followed? A. Yes. As far as the sequence of always handling the swatch, the control swatch, at the same time that you control -- that you handled the evidence swatch, there's evidence that that chain of doing these things in series was not followed at all -- on all occasions. Q. And what's that evidence? A. Well, in this particular case there were two occasions where samples were packaged and mailed to other laboratories; they were mailed to the Department of Justice, and they were mailed to Cellmark. Now, if this protocol was stringently adhered to and understood that it needed to be stringently adhered to at every stage of manipulation, then when those samples were sent, they should have sent the control swatches because they had -- if you're going to package it, you have to package the control, handle it the same way, and make sure you're following that protocol to make sure there's not transfer. But, in fact, those specimens -- the evidence items were mailed to the DOJ and Cellmark, and the controls weren't mailed with them. So that says they weren't following this as religiously as they should be as far as handling the control always at the same time as the evidence. Q. Now, you're familiar with the National Research Counsel Report on Forensic Applications of DNA Technology issued in 1992, are you not? A. Yes. Q. And I want you to read the statement and tell me if you agree with this one. MR. BLASIER: For the record, it comes from page 67 of that report. (Page displayed on Elmo.) MR. LAMBERT: Objection. This calls for hearsay. THE COURT: Sustained. Q. (BY MR. BLASIER) Well, let me ask you -- THE COURT: Mr. Blasier, we're over the hour. Are we going to be longer? MR. BLASIER: Yeah, we are going to be longer. THE COURT: How much longer? MR. BLASIER: I have a video to go through, and a few other things, and some boards to go through. It may be another hour. THE COURT: Two hours? You said one hour. MR. BLASIER: I said one to two. THE COURT: 10-minute recess, ladies and gentlemen. (Recess.) Q. (BY MR. BLASIER) Dr. Gerdes, where there is contamination, does it always show up on controls? A. Not always. Q. And if you do have what might be contamination show up on a control, does that affect the reliability or protect the reliability of other tests done -- results of other tests done at the same time? A. Yes. Q. Is it accurate the PCR tests done by LAPD in this case in particular were all done at the same time? A. Yes. Q. Pretty much? A. Well, two different days they did the PCR. Q. Okay. Now, you indicated expressing your opinion about the reliability of results in this case, PCR results, that you reviewed a videotape that was prepared by the Police Department Scientific Investigation Division, correct? A. Yes. Q. And that was a videotape that was prepared by them for their presentation in the criminal case to demonstrate the technique that they use to collect evidence in this case, correct? A. That's correct. Q. And let's start that video. It's 955. (The instrument herein described as a demonstration videotape showing Andrea Mazzola was marked for identification as Defendants' Exhibit No. 955.) Q. This video is Andrea Mazzola collecting samples as she collected them in this case? A. As a demonstration, yes. (Videotape played.) Q. Can you tell what she's doing there? A. Yeah. I believe she's -- MR. BLASIER: All right. Stop right there. Stop it there. A. Oops. MR. BLASIER: Can you back it up just a little bit. Little more. Stop there, please. (Tape rewound.) Q. You see her right hand? A. Yes. Q. And what is her right hand doing? A. Well, her right hand is resting on the pavement there, so even though it's gloved, she has now transferred anything that was on the pavement at that exact spot onto her glove. MR. BLASIER: Let's go. Continue. (Videotape resumes playing.) THE WITNESS: Stop. MR. BLASIER: Stop, please. (Videotape playing ceases.) THE WITNESS: You know, she just picked up the tweezers in that right hand, so now she transferred anything that was on the pavement onto the tweezers. And the tweezers, if you look closely, I think are held within the hand so the point of the tweezers are touching the glove, so now the tweezers are contaminated. At least anything that was on the pavement there that she touched the glove to is now on the tweezers. MR. BLASIER: Continue, please. (Videotape resumes playing.) A. Now she picked up those same tweezers. Now if they had anything on them -- she's taking an evidence swatch now, now they transferred onto the evidence swatch. Now she's collecting the blood. This is a substrate control she's doing first here. Q. Which is supposedly a clean area separated from the blood spot. Now, this is the substrate alcohol that she -- A. Correct. Q. -- that we talked about? A. Correct. So it's an area adjacent to the blood, presumably shouldn't have anything there. And that's the control. Now she's placing it into a plastic bag. Q. And she's touching about everything with her right hand? A. Well, yeah, her right hand and her left hand are touching now and -- Q. The things that were on her right hand could now be on her left hand? A. Correct. Q. You agree that she's probably not even aware -- A. I'm sure she's not aware. MR. LAMBERT: Objection, calls to speculation. THE COURT: Overruled. A. I think you can see that there are some swatches that are on the ground there that -- when she shook that out, they're on the ground. So the technique they use to get those swatches is not very efficient, but I'm sure they make, you know -- Q. (BY MR. BLASIER) Now is she getting another swatch? A. Right. And she's moistening that now -- you know, that I don't -- I don't know if I saw that or not because you could touch the dropper to the swatch. I don't know. MR. BLASIER: Stop there, please. (Videotape ceases playing.) (Video tape resumes playing.) Q. (BY MR. BLASIER) Now, do you see the moisture that she put on the ground for the substrate control; what has happened to that? A. Well, the moisture has sort of spread out so it's touching the blood stain. Q. And would you agree that that could cause any material that's in that moist area to now get into the blood? A. Yes. Q. Go on, please. A. Now she's dabbing the blood, and she -- you can see she's trying to get the blood to come up on the swatch. She's actually moving that into the substrate control area too, so -- there -- you definitely see it there. And the way this technique is performed, you can see that the rubbing back and forth is definitely going to be -- you can almost see flakes on that tweezers there of blood that's now on the tweezers. So you definitely got some blood on that tweezers, forceps. Q. She's taking the wet swatch and putting it in a plastic bag? A. Correct. Q. What affect does that have on the degradation of DNA? A. Well, it accelerates it because it's a nice, close, warm environment. It won't dry in that bag, so if it's -- as long as there's moisture, bacteria can grow, so it encouraged degradation of the DNA by bacteria growth. Q. That was then put in the back of a crime scene truck and left it in the sun for a number of hours. A. In this case, that's correct. Q. What kind of affect would that have? A. It's like an incubator. It's like a perfect environment. You know, she didn't -- she's wiping the tweezer, she's only using water. And as sensitive as this technique is, you can't wipe DNA off. You should use a separate sterile instrument. Now, I guarantee you could possibly get DNA off those tweezers again from that blood stain that she just took. Even though she's doing a pretty thorough job of trying to wipe it off, she's just using water. Q. Now the right hand -- A. That's not going to clean DNA off. Q. The right hand's going on the ground there? A. Right. Correct. Q. Now she touched her leg there with the glove. Now what's she doing? A. Now she's wiping the area with the glove. And you also notice she didn't change her gloves in between, though presumably she's going on to the next specimen. She didn't change her gloves in between. So all of those incidents where she possibly got something on the glove, it's because she hasn't changed her gloves. Now they're still on the glove. Q. Now she appears to be getting an envelope and writing something on it, correct? A. Yes. Q. And -- A. She's writing with that right hand and now has something on it because of the -- or may have, so now she transferred whatever that DNA is onto her pen, presumably the same pen she's using for recording the evidence all the way through the entire -- all the evidence she's collecting today or during this particular setting. Now she got her hand on the ground again I believe. Q. She's brushing the ground? A. Yes. And -- Q. There's the pen? A. There's the pen again. Then she has the pen and the cap in the other hand. Q. Now, the cap has gone into the crime scene box. A. Into the crime scene box. Now whatever is on her hand got on the cap is now in the box. And again, she's moving onto -- she's trying to wipe those tweezers off with just water. Q. Now she has the end of the tweezers in her right hand? A. Yes, she does. So everything that's been brushed around with her hand is on the tweezers, and she's now introducing that tweezer into the swatch. The cap, you notice, is on the ground, so -- the cap for the swatches, so if there's something there where she put the cap, now it's on the cap. Q. Now what's she doing? A. She's doing another substrate control. MR. BLASIER: You can turn it off now. (Videotape ceases playing.) Q. (BY MR. BLASIER) Now, did you also evaluate in assessing reliability of the PCR results in this case, the procedure used by Collin Yamauchi to process the samples he analyzed on June 14 and 15? A. Yes. Q. Is there anything important about the order in which he processed the items? A. Yes. Q. And tell us what that is? A. Well, ideally, forensic laboratories are aware that it's -- the greatest risk of cross-contamination is when you do what I described in explaining how it happens, that is handle a sample with a lot of DNA, and then handle a sample after that that's an evidence item which may have a very small amount of DNA. So you want to try and set up the order that you do things so that, number one, you never do reference items which are known exemplars or known blood specimens or from known individuals, you never want to do those at the same time and in the same place that you do evidence items. They should be separated, well separated, so that there's no possibility of accidentally getting something on your glove and then walk it down and -- or getting it on the pen while you're working there and transferring these things. They should be done totally separately and everything cleaned in between in terms of bleaching down and making sure that there's no possibility of that transfer. Now, that was not done in the LAPD -- by the LAPD. They handled Mr. Simpson's reference vial as the very first thing they handled. Immediately after that, the blood of the -- of the glove was sampled, in the wrist area of the glove, specifically. And then immediately after that, the Bundy drops. So the sequence of events is -- is a setup for the possibility of transfer between Mr. Simpson's reference vial to the glove to the Bundy blood drops. Q. Now, Mr. Yamauchi also testified, I think, that on the first day that he did tests, he tested 23 items at the same time? A. That's correct. Q. Is there any -- did you find any fault with that? A. Well, that is an awful lot of items if you think about how carefully that you need to do everything when you do a crime scene. For instance, what Gary Sims would do, changing paper and washing down the bench in between everything, and changing gloves in between everything is an extremely laborious, tedious process where you consciously think about these things at every step. It will take all day to do four or five samples for Gary Sims. As a typical thing, he just takes his time, he makes sure that he does one item and he cleans up, and he does another -- the next item, and he is very careful and meticulous. 23 items at one time, and getting it through the entire processing, not only the DNA extraction, but the amplification of the typing, in one day, is a tremendous number of samples. Q. So the record is clear, isn't it accurate that every single item of evidence that was sent to Department of Justice and Cellmark was collected by the Los Angeles Police Department, using the techniques we've seen -- A. That's -- Q. -- and processed through LAPD? A. Correct. Q. Thank you. Now, what is an artifact? A. An artifact is a defect in the typing system that -- the DNA system that you're using. And what it simply means is you may get -- as I'm sure you're aware, on these DQ Alpha strips there are dots and those dots reflect, presumably, the presence of DNA. Well, there are certain situations where you can get weak signals on those dots, and it doesn't really reflect the fact that there was DNA in the original sample. It's a defect in the way the sample is washed, so that you can get what's called cross-hybridization, that is a weak signal. That is because of the fact that if two different genes are very close, and you haven't washed it properly, you can have these weak signals that show up, and it's not because of the fact there was DNA there, it's because of the fact that there's a problem in the way the sample was washed. Okay. And where that's the biggest problem is where the genes come closest together in terms of their sequence, their very close, and it takes very -- what's called stringent conditions to be able to differentiate those. And sometimes I'll have a weak signal, a bleed through, if you will, and it's not because there's any DNA in that particular allele there, it's because of this artifact, the washing artifact. So it's called an artifact. You need to be able to recognize that to say that's not real, that's just something -- a problem with this particular way in which we detect the DNA after we've amplified it. Q. Now, if the testing kit that is produced by Kirk and Zelmer (phonetic) is followed pursuant to the -- the book that tells you how to do the test, should you see cross-hybridization show up? A. If you use DNA -- greater than 6 nanograms of DNA, that is a fairly large number of DNA, actually, you would see this type of cross-hybridization. You certainly should not see that frequently. It should be rare. And my experience in looking at other laboratories is it is rare, you don't see that often. Q. Is it an indication that the test has not been done properly? A. Yes. Q. Can you always tell the difference between cross-hybridization and contamination? A. No. Q. Now, let's look at civil board 1279. (Exhibit 1279 is displayed.) Q. (BY MR. BLASIER) Doctor, you recall this board from the criminal trial? A. Yes. Q. And -- now, this indicates the DQ Alpha testing strips produced by the Department of Justice for LAPD item number 30, which was a Bronco console stain, item 31, which was in the same area from the Bronco, correct? A. Correct. Q. And this third strip down here that says QC816, what is that? A. That's quality control. And one of the controls we didn't talk about is called a positive control, and that's simply a known sample that is run to ensure the strips are -- are good, and that the appropriate type is being found on a known. And so this is -- at the Department of Justice, what they have is individuals at the laboratory where they know what their type is; they do blood stains, those are run in concurrence with cases and -- so that you can look at the typing results on those knowns that presumably came from, or did come from single individuals, and then that gives you confidence that there weren't any artifacts in that typing run. Q. And you should also -- A. So that you're running -- Q. You should only see the two alleles that belong to the person that made up the sample? A. That's correct. Every individual only has 2 alleles, that's two numbers. If you find three, that means that's either a mixture, meaning there's more than two individuals there, or one of those artifacts occurred, or there's contamination. Q. Now, the bottom strip indicated positive control. What is that? A. This is a control that is incorporated in the kit itself, the company provides this, and it simply is another mechanism of just checking that the strips were made correctly, and that the appropriate typing results is being obtained. It's a 1.1,4 genotype DNA that's just sent to the laboratory and they're asked to type it as a control. Q. Now, is it accurate that all of these four testing strips are all done at the same time? A. Yes. Q. And so that these two controls at the bottom were done at the same time as 30 and 31? (Indicating.) A. That's correct. Q. Now, the fact that there's an indication of a third allele -- fourth allele, I'm sorry, QC816, what should that have come back? A. That's a 1.2, 1.2. Q. You actually should have seen one allele? A. That's correct. That's the homozygote person. Q. The person who got the allele from both parents? A. Uh-huh. Q. That strip actually showed something other than what it was supposed to show? A. It showed a 1.1 and hint of a 1.3. Q. You've heard the terminology hints and traces and hint of traces? A. Yes, that's a nomenclature that they use at the DOJ. Q. Okay. And the fact that you see occasions of two alleles that aren't supposed to be there, is that an indication that's a problem with the test? A. Yes. It indicates -- this obviously is a quality control. It should have come from a single individual. Even though the singles are weak -- singles are weak here, it indicates one of two things; either there's a contamination event here or the hybridization was performed in such a manner that there's cross-hybridization, that's an artifact, and because of the washing conditions in this particular batch, you've got these weak signals. Q. Now, in the positive control, what typing -- what alleles should you have seen on the positive control? A. The 1.1, 4. Q. And the fact there's an indication of a 1.3 tells you what? A. Again, either that positive control somehow got contaminated or there is a problem with the washing and -- in this particular run, and the 1.3, either the washing, or the development time, I should qualify that, but one or the other has created an artifact so that that 1.3 dot which shouldn't be visible at all is visible. Q. And could that be contaminated as well? A. It could be. Q. Now, the development lengths, what does that mean? A. Well, these strips, after you've hybridized the DNA to them, then you go through a color development reaction that allows these dots to become visible. And it's very -- it's analogous to developing a photograph. So if any of you have done photography, you know that you can overdevelop or underdevelop a photograph when you're in the -- doing that process. You allow it to go for a certain amount of time until the dots become visible and then you stop it. And if you allow it to go for a longer period of time, then the dots are going to become more intense. The longer you let it go, the darker they get. And so that's critical in terms of the intensity that you'll observe on that strip in terms of how long you allow it to develop before you stop the development. Q. Now, the Department of Justice in interpreting item 39 interpreted this as -- A. 31. Q. I'm sorry, 31, as being a 1.3 representing a real DNA, correct? A. Correct. Q. And they ignored the extra alleles on the controls, did they not? A. That's correct. Q. And in your opinion, given what showed up on the controls here, are the results for 30 and 31 reliable? A. No, because the controls failed. Q. Now, what is the -- in calling this a real allele, and calling other ones not real alleles, is there a great deal of subjectivity that goes into this? A. Yes. If it's taken in a scientific test, it should be totally objective. You should be able to look at these and read off the numbers and that's the result. But because of this artifact, now it means on certain alleles, especially the one alleles, now it becomes subjective. You look at it and you say, well, it's kind of, there's maybe something there, but you know, I really don't think that's real in this case. Then the next time you look at it, you'll say, well, maybe that is real, and your decision becomes a subjective decision as to whether to count it as real or not. So the discrimination ability of the test has been lost, it's been converted from a scientific test to a subjective test, that in the opinion of the analysis -- the analyst, this is the interpretation, as opposed to a strict scientific just read it out and this is what the results mean. Q. And certainly two experts ought to be able to look at the same data and come up with the same conclusion, shouldn't they? A. Yes. Q. Let's look at 1281. (Exhibit 1281 is displayed.) Q. Now, you recall seeing this board? A. I do. Q. And on this board we have four strips. Item 52, which is a Bundy blood drop, correct? A. Correct. Q. QC877, which is a control quality. That should have come back as a 1.1 and a 4? A. No, that one is 3, 4. Q. 3, 4, I got ya. Then a positive control that was supposed to be a 1.1, 4, correct? A. Correct. Q. And these three strips were all run at the same time, were they not? A. They were. Q. On item 52, a Bundy blood drop, there is evidence of a dot at the 1.3, correct? A. Yes. Q. And if that is actual DNA, that would be an indication of a component in the Bundy blood drop that was inconsistent with Mr. Simpson, correct? A. That's correct. Q. And what did the Department of Justice in interpreting this, what did they decide about whether this allele was real or not? A. They decided that was not real. Q. And comparing the two charts, what they decided was real and not real, is that a good example of the problems with the subjectivity of this kind of analysis? A. I think it is, yes. Q. And the results on the Bundy blood drop, if that's real DNA, are consistent with some other contributor contributing to that stain, correct? A. That's correct. Q. And 52 -- well, it's actually a fairly large stain compared to the other Bundy drops, was it not? A. Yes, it is. Q. It was -- about how much DNA was in 52? A. Well, if I remember correctly, it was around 200 nanograms of degraded DNA, but on slot blot and interpretation of the RFLP, around 25 nanograms of undegraded. Q. And the other Bundy drops had all the way down to 2 nanograms? A. Yes, ranged from 1 to 4. Q. And I think you testified that one drop of blood should have about a thousand? A. Correct. Q. Now, look at -- look at civil 1275. (Exhibit 1275 is displayed.) Q. You've seen that chart before? A. I have, yes. Q. Now, would you agree that in forensics cases, the reference sample from the suspects and from the victims is critical? A. Yes. Q. I mean it's kind of like the hub of a wheel from which everything else is compared to, correct? A. That's correct. Q. And the reference samples should be done -- because of the way they're collected, certainly should be clean, and only have one person's DNA in it, correct? A. That's correct. Q. All right. Now, at the top of this chart we have the DQ Alpha types for Mr. Simpson and the two victims and the GC locus of the polymarker system. Why don't you tell me quickly what that is? A. The polymarker is a similar system to DQ Alpha. It looks at five other genes other than DQ Alpha, and as far as the format is as to how it's interpreted and read, it's the same kind of thing, you're looking at dots, but it's -- the GC is one of those five and it's just a second gene that you would have to look at that's in a similar way to DQ Alpha. Q. Okay. And Mr. Simpson's GC type is a BC? A. Correct. Q. And he's the only one that has a B allele in that locus? A. That's correct. Q. Now, did you evaluate the typing sheets produced by LAPD on the reference samples that they typed? A. Yes. Q. And -- incidentally, those again were done in the same runs as the evidence, were they not? A. Yes, this is a second day now, and what happened here is, item 12, which is a Rockingham sample, was processed, and then after that Nicole Simpson's reference sample and Ron Goldman's reference sample. They were all processed together and in that order. Q. And item 12 is a drop that was found on the Rockingham foyer? A. That's correct. Q. That had -- that had a lot of DNA in it? A. Yes, it did. Q. Now, what result did Mr. Yamauchi get for Nicole Brown Simpson's reference sample that was processed in the same run after item 12? A. He records a 1.1, 1.1. Q. You have examined that strip, have you not? A. Yes. Q. Is there evidence of an additional allele in that? A. It's very faint, but I think I can see there is definitely a 1.2 -- a hint of a 1.2. Q. The only potential source among the three people involved here of 1.2 is Mr. Simpson? A. Of those three people, correct. Q. Certainly there would be a 1.2 in abundance in item 12? A. That's correct. Q. Now, you've examined the strip produced by Mr. Yamauchi for Ronald Goldman, have you not? A. Yes. Q. And what -- what alleles show up on that strip? A. The 1.3 and a 4 and he records a faint 1.1 which is definitely visible. Q. You agree there's a 1.1 there? A. Yes. Q. Did you see a 1.2? A. No, you don't see -- you see that dot, but in this particular case it's because of, again, the way this typing is set up, the dot for the 1.2 is not specific only to 1.2. It's 1.3, 1.2 or 1.3 or 4. It's called masked because the 4 dot would also light that dot up. You also have to consider whether that -- when you have a 1 allele plus a 4, then you also have to consider the possibility that the 1.2 could be there. It's a possible allele. Q. And that's really a deficiency in the DQ Alpha kit? A. It's a deficiency in the way the testing strip is set up. Q. It doesn't have a dot specific to the 1.2, you have to do that by deduction? A. That's correct. Q. The 1.1 that shows up in Mr. Goldman's sample is consistent with the 1.1 in item 12, correct? A. Correct. Q. And the 1 -- the possible 1.2 is also consistent with item number 12, right? A. Correct. Q. And could not have come from Mr. Goldman. A. Correct. Q. At the time this run was done, isn't it accurate that the substrate controls for item 12 and other items that were run in the same run, were run one after -- I mean the sample is run, and the substrate control was run as you described it should have been done, correct? A. Yes, according to what they recorded, that was the case. Q. And for this run which was on the 15 -- A. 15. Q. How many items were run? A. 19. Q. And isn't it accurate that none of the substrate controls showed any possible extraneous alleles? A. That's correct. Q. And is that an example of how you can -- how you can get possible contamination or extraneous alleles that didn't show up on the substrate control? A. I believe it is, yes. Q. Now, you've reviewed the typing sheet produced by Cellmark for the two victims' reference samples, correct? A. That's correct. Q. And Cellmark, in processing Nicole Brown Simpson's, got the correct result, but in the -- in the polymarker system, there is evidence of a B allele in the GC locus, correct? A. That's correct. Q. The only source of that among the three people is Mr. Simpson, correct? A. That's correct. Q. And in their typing of Mr. Goldman, they got that one right? A. Yeah. In both of those cases, the C dot was extremely faint, so the strips were not developed nearly as long as they would have been -- as they were developed at LAPD. By looking at the C dot comparisons, you can tell. Q. Let me ask you about that. Cellmark uses a shorter development time than the Department of Justice, correct? A. Correct. Q. And isn't it true that if you use a shorter development time, that they -- that may mask the presence of contamination, that doesn't show up, because you don't let the dots develop? A. That's correct. Q. Okay. Now, Department of Justice also tested both victims in December of '94, and you've reviewed those DQ Alpha strips? A. I have, yes. Q. And isn't it true that the Department of Justice, when they tested Nicole Brown Simpson's, found a trace of a 1.2 allele? A. That's what they record on their sheet. That's correct. Q. This is not a masked allele because you don't have the 4 allele, you can tell -- A. That's a true 1.2. Q. True 1.2. Again, the only source of that among the three people is Mr. Simpson? A. That's correct. Q. And for Mr. Goldman they also found a faint trace of a 1.1 and a possible 1.2, and this one might be masked because you have the 1.2? A. That's right. You have to consider it because of the way the test is set up, but the 1.1 is definitely visible. Q. They recorded it? A. Yes, they record it on their sheet. Q. The only source of that is Mr. Simpson? A. That's correct. Q. Now, it's true that some of these might be cross-hybridization as well, correct? A. Yes. Well, basically, the alleles that are showing up here are the alleles that can cause artifact or be due to artifact, but the interpretation that -- my interpretation of this is either there is a coincidental artifact that happens in all three labs, to come up with those same results, which is unlikely, I think, or cross-contamination happened between these samples and the cross-contamination occurred at LAPD and then was repeated -- retyped at Cellmark and DOJ. Q. Now, would you agree that the most reasonable explanation for that is cross-contamination, not cross-hybridization? A. That's my opinion, yes. Q. In a reference sample, again, that's the known sample taken in this case from Mr. Simpson, and the two bodies at the autopsy, correct? A. That's correct. So cross-contamination in this case means that a substantial amount of DNA had to have been transferred because all of those have a lot of DNA. Q. Incidentally, the B allele, there's nothing indicated in the literature that that could be caused by cross-hybridization, is there? A. No. So that that is a second gene system. That confirms -- to my mind, confirms the DQ Alpha system in terms of an interpretation of this being cross-hybridization by a second gene system. Q. And these are all high-concentration DNA samples, correct? A. Correct. MR. BLASIER: That's all I have. MR. LAMBERT: Thank you, Your Honor. CROSS-EXAMINATION BY MR. LAMBERT: Q. Dr. Gerdes, would you please tell the jury how many times you have collected evidence at a crime scene? A. I have never collected crime scene evidence. Q. Would you please tell the jury how many times you yourself have tested crime scene evidence? A. Never. Q. Would you tell the jury then, how many times your lab has tested crime scene evidence? A. We don't do forensic testing. Q. Well, maybe you could tell the jury then, how much training you have in forensic crime scene analysis? A. Well, my training is in regards to my experience of being involved in the field of DQ Alpha PCR testing since -- essentially, since its beginning, in terms of interpreting results and consulting on other cases. Q. Consulting with criminal defendants; is that right? A. Correct. Q. And their lawyers? A. Correct. Q. And how many times have you yourself given classes in forensic science? A. Never. Q. How many classes in forensic science have you ever taken? A. None specifically for forensics. Q. And your experience in -- in evidence collection is all experience you've gained working on behalf of criminal defendants; is that right. A. Well, reading the literature and working in testimony of those cases, that's correct. Q. Have you ever conducted any validation studies on forensic evidence samples? A. No. Q. Have you ever conducted any experiments in the forensic evidence area? A. No. Q. Have you ever published a peer review article in the forensic science area? A. Not peer review, no. Q. Are you even a member of the American Academy of Forensic Scientists? A. No. Q. Now, Robin Cotton is, isn't she? A. Yes. Q. Gary Sims? A. Yes. Q. They're experienced forensic scientists, correct? A. Yes. Q. And you are not? A. Other than what I've told you, no. Q. Why don't you tell the jury how many times you yourself have run the DQ Alpha test using the DQ Alpha kit? A. Not very many times. I think we have one kit that I ran at one time -- Q. Okay. A. -- just to run it. Q. You've run it one time. Gary Sims has run it, what, a thousand, 2,000? A. I'm sure he has, yes. Q. How about Robin Cotton? A. I'm sure she's run it a number of times. Q. Okay. So you're looking at their DQ Alpha test results on a test that you yourself have almost never run; is that right? A. That's correct. The tests should be run so that independent scientists -- Q. Why don't you answer my question. MR. BLASIER: He's trying to answer, Your Honor. THE COURT: Overruled. Q. (BY MR. LAMBERT) The D1S80 test, why don't you tell the jury how many times you've run that test yourself? A. We don't run that test. Q. You've never done it? A. We run a similar test. Q. No, I'm asking you if you've ever run the D1S80 test? A. Not that specific test. Q. So you yourself have never done any forensic evidence testing, you don't run the test that we're discussing here, but you have testified frequently in court as an expert, isn't that right, sir? A. That's right. Q. 35 times? A. Correct. Q. And every single time on behalf of a person charged with a crime, correct? A. Every time for the defense, that's correct. Q. Every time on behalf of a person charged with rape, murder or both, right? A. Correct. MR. BLASIER: Objection, irrelevant, argumentative. Q. (BY MR. LAMBERT) All of your work in this area is on behalf of criminal defendants who are trying to get off of rape or murder charges? MR. BLASIER: Objection. THE COURT: You've gone far enough with that. Q. (BY MR. LAMBERT) Okay. And on the times that you have testified in court, every single time your testimony has been that the DNA evidence is contaminated and not reliable; isn't that right, Doctor? A. No, I've never -- I haven't always said it was contaminated. I have always been concerned over the design of this particular dot blot base type of testing. Q. It was -- your testimony was always that the evidence was unreliable; is that right? A. It's been critical of the DNA -- of that specific type of DNA testing, yes. Q. And that specific type of DNA testing is done by hundreds of forensic labs across the country, isn't it? A. It is now, yes. Q. It's accepted in probably every court in the country, isn't it? A. It is now. Q. And it's now a well established part of forensic science; isn't it, Doctor? A. I think you can say that, yes. MR. LAMBERT: This be a good time, Your Honor? THE COURT: Okay. 1:30, ladies and gentlemen. Don't talk about the case, don't form or express any opinion. (At 12:00 P.M. a recess was taken until 1:30 P.M. of the same day.)
SANTA MONICA, CALIFORNIA DEPARTMENT NO. WEQ (REGINA D. CHAVEZ, OFFICIAL REPORTER) (Jurors resume their respective seats.) THE COURT: You may resume. MR. LAMBERT: Thank you, Your Honor. JOHN C. GERDES, the witness on the stand at the time of the luncheon recess, having been previously duly sworn, was examined and testified further as follows: CROSS-EXAMINATION (Resumed) BY MR. LAMBERT: Q. Now, Dr. Gerdes, I'd like to make sure that the jury is clear on what you are saying and what you're not saying here today. First, you're not opining that the RFLP test results obtained by Cellmark and the Department of Justice were in any way the result of contamination, are you, Doctor? MR. BLASIER: Objection. Beyond the scope. Nothing offered by my RFLP results. THE COURT: Overruled. A. On the RFLP -- there's only one RFLP that I would suspect might be cross-contamination. That's item 52, which is a Bundy blood drop. All of the rest are valid results. Q. Valid results. And the RFLP test, you concur, is a well recognized, high quality test, isn't it? MR. BLASIER: Objection. Beyond the scope. THE COURT: Overruled. A. Yes. Q. All right. So all those test results are good test results that the jury can rely upon? A. In my opinion, that's true. Q. Now, in regard to the PCR test, you're not saying that the PCR test results in this case were the result of contamination; only that they -- it's possible that they could have been; isn't that right? A. There's a significant risk that they could have been, yes. Q. And it varies, of course, from PCR result to PCR result, how high that risk might be, in your opinion; isn't that right? A. Yes. Q. And in terms of actual evidence of contamination, the only items that you pointed to during your direct examination were item 31, item 52, and the reference samples; isn't that right? A. That's correct. Q. And other than those items, there is no other evidence of contamination in any of the test results that you looked at in this case? A. There's no direct evidence of that. Q. Well, let's put up here the Bundy results board. Can you see this? I can tilt it a little bit. A. I think I can see it. Except for this corner on the bottom here, if you move these or the -- THE COURT REPORTER: Do we have an exhibit number, please? MR. FOSTER: 291. MR. LAMBERT: 291. I have a sheet here; I forgot. 291, (Plaintiffs' Exhibit 291 displayed on the easel.) Q. (BY MR. LAMBERT) Now, this is a list of the various results of some of the items collected at Bundy, correct, Dr. Gerdes? A. Yes. Q. The first one here, item number 47, that was tested by two different labs, and they both got results consistent with Mr. Simpson, correct? A. That's correct. Q. And the labs' results are consistent with one another, correct? A. That's correct. Q. And there's nothing in those results on that particular item that you saw that would indicate any contamination, true? A. Well, there's nothing directly in what you read off of there, in terms of that reflects what was seen on the strip. But I feel the way that that sample was handled, there's a significant risk that this it could have been, due to cross-contamination. Q. There's nothing in the actual readings that the labs got that shows any evidence of contamination? A. That's correct. Q. So you're saying, based upon the way that sample was handled, you think there could have been some contamination? A. Correct. MR. LAMBERT: Steve, would you put up -- put this up. I'm going to put up on the Elmo, Dr. Gerdes -- I'll give you a copy, too, because it might be easier for you to look at it there. THE WITNESS: Thank you. MR. LAMBERT: This will be the next in order, Your Honor, number -- THE CLERK: 2264. (The instrument herein referred to as Chart entitled Bundy Crime Scene Items was marked for identification as Plaintiffs' Exhibit No. 2264.) MR. LAMBERT: 2264 is labeled Bundy Crime Scene Items. Q. (BY MR. LAMBERT) This -- Dr. Gerdes, this document is a list of the crime-scene items sampled by Collin Yamauchi on June 14, 1994; is that correct? A. I've never seen this list, but it appears to be that by its title, yes. Q. And you looked at Collin Yamauchi's notes -- A. Yes. Q. -- that he prepared when he did that evidence sample, correct? A. Yes. Q. In those notes, he listed each of the items that he sampled, the number of swatches for each item, just like this, right? A. Yes. There is a form in there where you list the number of swatches. Q. And when Mr. Yamauchi was doing this sampling that day, he sampled them just the way that you said they should be done in evidence, alternating with the control item, correct? A. That's what he records, yes. Q. That day when he did this sampling, he sampled evidence items and control items in parallel, correct? A. That day, yes. Q. All right. And there were a whole number of swatches, as you can see on this chart, for all these various evidence items that were handled that day? A. Yes. Q. And some of these swatches were tested by Collin Yamauchi that day, when he went through the PCR process, correct? A. Yes. Q. A swatch for each evidence item? A. Um-hum. Q. And in addition, other swatches, not the ones that Collin Yamauchi tested, but other swatches for those same evidence items were sent to the Department of Justice or to Cellmark Laboratories to have them tested, correct? A. I don't recall if he packaged it at exactly that moment. I don't believe he did. At a later time, they were sent. Q. They were sent. So the swatches that Collin Yamauchi took through the PCR testing process were not the same swatches that went to Cellmark and to DOJ, correct? A. That's correct. Q. So that if there was any contamination that took place during the actual PCR process that Collin Yamauchi was following, that could not have affected the test results of Cellmark or DOJ, true? A. Unless the contaminant was in the other swatches at the time, before it was tested. Q. My question was, if a contamination took place during the PCR process that Collin Yamauchi followed, rather than some earlier point in time, then that contamination could not have affected Cellmark and DOJ; is that true? A. That's true. Q. Okay. So in order for your contamination possibility to account for all of these test results, that contamination had to take place before Collin Yamauchi started his PCR test, right? A. Either that, or a subsequent time in which those samples were handled at another time. Q. Well, except we know that when Collin Yamauchi went through the PCR process that day, he got these results that are the same as Cellmark and DOJ, correct? A. On the swatches he ran, yes. Q. So we know that either those are the correct results for all those swatches, or the contamination took place before? A. Correct. Q. Now, when contamination takes place, and you do PCR tests, the normal result of that is that you see a mixture, correct? A. Generally that's true, yes. Q. But the PCR test, as you've described it, is so sensitive that it can actually get just a few molecules from one person's blood, right? A. Correct. Q. So that if these evidence samples had somebody else's blood on them, and then they somehow got contaminated, normally you would expect to see two person's blood show up in the PCR test? A. Unless they're excessively degraded, that's true. Q. In this case, all of those samples that were tested from Bundy that day, the ones that we have up on the video screen, there's no evidence that there was two people's blood in there, is there? A. On these specific items, no. Q. Okay. So in order for your possibility of contamination to exist here, you would have had to have had first all of the DNA degrade, all of these swatches, and then they would have all had to have been contaminated right? A. That's correct. Q. That would all have to have taken place before Collin Yamauchi started his amplification process? A. Correct. Q. It would have had to have happened so that every one of these swatches in the case of 47, 4, in the case of 50, all the swatches had to be contaminated, too, right? A. Or at least the ones that were tested, yes. Q. And first, they all had to be completely degraded, so the original blood was out of them, and then they all had to be uniformly contaminated; isn't that true? A. That's true. MR. LAMBERT: Would you move that up a little bit Steve, so I can see the bottom. Q. (BY MR. LAMBERT) So we have 32 evidence swatches that he processed that day, and seven control swatches. And in order for your possibility of contamination to have -- be correct, all the evidence swatches had to be completely degraded, and then all of them had to be contaminated; isn't that true? A. Yes. Q. But there couldn't be any contamination on the control swatches, because all of those control swatches tested negative for DNA, true? A. That's true. Q. So somehow, this contamination that you're talking about finds its way into closed coin envelopes, into closed bindles, and only gets on the evidence samples and not the control swatches. Is that what you're telling this jury? A. It has to get into those in a systematic basis, based on something. It would be a systematic sort of contamination of those in sequence. Q. And wouldn't it get on the control swatches at the same time, Doctor? A. One would think it should, yes. Q. And here it did? A. The swatches looked -- the substrate controls looked clean. Q. Right. In fact, those substrate controls were tested by Collin Yamauchi that day, correct? A. Yes. Q. And then they were sent out to the outside labs, and they tested them, as well, correct? A. They weren't sent out -- they weren't sent out at the same time as the evidence items, but eventually they were, yes. Q. Right. And when they were tested by the outside labs, they found no evidence of contamination, correct? A. That's true. Q. So now we've had all of the substrate controls tested twice. No evidence of contamination? A. Yes. Q. And it would only -- the PCR test is so sensitive, that it would pick up even a few molecules of contaminant on those control swatches, correct? A. It should. Q. All right. Now, you testified that you thought that you know that this process is so sensitive that it's possible that contamination can that place, and you gave some examples: If somebody sneezes, if somebody puts their hands up on the glass like this (indicating), that can somehow result in contamination? A. That can transfer the DNA to those objects. If those objects are then handled, it would transfer to whatever is subsequently handled to that object. So you transfer to your glasses; you transfer to what you handle next. Q. You're not saying any of those things actually took place when Collin Yamauchi did this? A. I have no proof. Q. He doesn't even wear glasses, does he? A. No, he doesn't. Q. So that didn't happen, did it? A. Andrea Mazzola wears glasses. Q. She wasn't there in that room, processing this stuff? A. No; she handled the original specimens. Q. Certainly, people handling the original specimens in the -- and the contamination is taking place during the evidence collection process, you're certainly going to see mixtures, then, aren't you, Dr. Gerdes? A. Not if those samples are degraded. Q. Wait a second, Dr. Gerdes. She's collecting evidence samples. You're saying she can cross-contaminate from one evidence sample to the other, right? A. Yes. Q. At this point in time, you'd have to see a mixture, true? A. Unless whatever she's transferring is in a much higher concentration than what you're transferring to. Q. You're saying one of the evidence samples might be so degraded, and the other one is not degraded, then you can have a transfer? Is that what you're saying? A. Right. Correct. Q. You haven't seen any evidence of that actually happening here? A. I have no proof of that, no. Q. Now -- and you made a point about how, in this instance, the order in which Collin Yamauchi handled these evidence samples might somehow affect your contamination possibility; is that right? A. Yes. Q. And is that -- that's because the first one of these evidence samples that he handled was item 52, that had more DNA content? A. No, it's because the first item that was handled was a reference item of O.J. Simpson; and subsequent to that, the glove; and then subsequent to that, the 52. Q. 52. And 52 is the one that had more DNA content than the other swatches? A. Yes. Q. Before he handled 52, when he got to these Bundy evidence swatches, what was actually the very first thing that he handled? A. As I said, the first thing he handled that day was Mr. Simpson's reference vial. Q. No. I'm talking about when he got to the evidence swatches from Bundy. A. Yes. Q. What was the very first thing that he handled? A. When he got to these? Q. Yeah. A. I can't remember if he did the control swatch first or after. Q. Why don't we put up 333? (Plaintiffs' Exhibit 333 displayed on the Elmo screen.) A. I have to check that in my notes. Q. These are Collin Yamauchi's notes. And he took them in the order in which he did things, correct? A. Yes, in this, in organizing the evidence, yeah. Q. Right. Okay. Move it over a little bit. The first thing he did was a control, right? A. Yes. Q. So before he even did item 52, he did the control for item 52, which you admit is completely negative for DNA, correct? A. Correct. Q. So if he was transferring somehow DNA from the reference sample into the evidence samples, surely the very first swatch that he touched, 52 control, would show some evidence of DNA, wouldn't it? A. It should have, yes. MR. FOSTER: That's 333. Q. (BY MR. LAMBERT) You would agree, Dr. Gerdes, when Mr. Yamauchi was handling these evidence items this day, he changed his gloves after he did the reference sample, correct? A. I believe, from my recollection of his testimony in the criminal trial. I'm not sure he was -- sure that he changed it between every item. Q. Well, Dr. Gerdes, we're not in the criminal trial now; we're in this trial. Have you read Collin Yamauchi's testimony from this trial? MR. BLASIER: I object and move to strike. THE COURT: Overruled. A. I glanced through it. I haven't read it in as much detail as I did the criminal trial. Q. Well, you're going have to take my word for it, because Collin Yamauchi testified he changed his gloves after he handled the reference vial. A. Okay. Q. He then testified that during the process of sampling the Rockingham glove, that he changed his gloves again during that process. You with me so far? A. Yes. Q. And he also testified that he then changed his gloves after he did the Rockingham glove, and before he started on the evidence samples, okay? A. Okay. Q. Now, you would agree, under those circumstances, it's very unlikely that he was transferring enough DNA to -- to contaminate all 36 of those evidence samples? A. It would have to be a situation where it was something like a pencil or something he was handling in common between those. Q. It would show up on the control watches? A. The controls don't always show the DNA, but it should have, yes. Q. Just a few molecules of DNA can show up in those controls? A. They should have, yes. Q. And once again, all the controls were always negative, correct? A. That's correct. Q. And while this -- while he was doing the preparation of the Fitzco card, and the sampling of the glove, you acknowledged that the evidence samples, themselves, were in closed bindles inside of closed coin envelopes, ten feet away, correct? A. That's what the testimony is, yes. Q. And there is no forensic literature that supports the theory that the DNA could have somehow penetrated the coin envelopes and the bindles, is there, Doctor? A. No, it would not have penetrated those. It would have to be something manipulated between, such as a pencil or something. Q. And just before we take this Bundy board down, you will agree that this nine-probe RFLP match on the rear gate is something that the jury can rely upon as a valid DNA result, correct? A. Yes, I do. Q. And a nine-probe match, that's an extremely important match? A. It's a significant match. Q. Very significant. Very significant in identifying Mr. Simpson as the person who left the blood there; isn't that true? A. Yes. Q. And now, item -- we'll come back to item 52 later. That's a little bit of a different subject. (Plaintiffs' Exhibit 293, board entitled Results of DNA Analysis, Bronco Automobile, displayed on the Elmo screen.) Q. (BY MR. LAMBERT) Now, this is a set of results from the Bronco automobile, Dr. Gerdes? A. Yes. MR. FOSTER: 293. Q. (BY MR. LAMBERT) And the only one of these that you mentioned at all during your direct examination is item 31; is that right? A. That's correct. Q. So? A. 30 and 31 were mentioned. Q. 30 and 31, all of these other items. You've seen no evidence at all of any kind of contamination in these test results themselves, have you? A. Well, there are results that are consistent with mixtures of -- and mixtures and -- or they could be contaminants, I suppose. But additional alleles are as to one individual. Q. And as to item 30 and 31, you will agree that items 303, 304, 305. They were taken from the same place in the Bronco, 30 and 31? A. Those items were taken at a subsequent time, at a later time. In the same place. Q. The PCR results from 303, 304, 305, they validate the results from 30 and 31? A. They appear to, yes. Q. And that is evidence that 30 and 31 weren't contaminated, correct? MR. BLASIER: Objection? Argumentative. THE COURT: Overruled. A. It's a subsequent contamination from that same area. Q. Which is evidence that 30 and 31 weren't contaminated? A. Yeah, I guess you could say that. Q. And I won't go back to the Bundy board, but I meant to ask you: Nothing that you're testifying about here concerns in any way conventional serology testing, does it, Dr. Gerdes? A. That's correct. Q. So that if it turns out, as the evidence has established, that the item number 49, for example, that was a blood drop at Bundy, has the same four conventional serology types as does Mr. Simpson, that would be something that would tend to indicate that that item wasn't contaminated; isn't that true? A. That would have to be looked at independently as to how reliable those results are, but yes. Q. Well they're admitted in this case, so pretty reliable? A. Again -- MR. BLASIER: Objection. That misstates or never admitted any of this stuff. THE COURT: Well, I sustained the objection If you're going to say that, say it fully. Q. (BY MR. LAMBERT) And if only so -- if only one out of every 550 people had the four conventional types that item number 49 had, and Mr. Simpson was one of those, one out of 550 people, that would be pretty strong evidence that contamination doesn't account for item 49's DNA result; correct, Doctor? A. I'd have to look at -- I mean, I'm a little -- I guess I could say that, yes. Q. And in regard to the various items on this chart, which show DNA test results consistent with Mr. Simpson, you have no evidence that these items ever came anywhere near Mr. Simpson's reference sample on the day that they were handled by Mr. Yamauchi, correct? A. These items were handled on the same day, originally, by LAPD, as certain items that were collected from Rockingham, which are consistent with O.J. Simpson's. So that would be the possibility of cross-contamination in this instance. Q. My question had to do with the reference sample. Shall I ask it again? A. Yes. Q. You cannot tell this jury that any of these items, when they were handled by Collin Yamauchi, came into contact in any way with the reference sample? A. Not the reference sample. Q. So your possibility of contamination as to the Bundy items, that has to do with possible contamination from the reference sample, true? A. Yes. Q. That couldn't explain these, right? A. That's right. Q. So what you're saying is, some other contamination may have taken place from some other evidence item? A. Yes. Q. But that would mean that other evidence items would have to have contained Mr. Simpson's blood, correct? A. Correct. Q. So are you assuming that that's the case? A. That the items that I'm referring to would be items collected at Rockingham, which are consistent with Mr. Simpson, if those which were handled prior to these. So, yes, that's what I'm saying. Q. You're saying the blood collected at Rockingham was Mr. Simpson's blood? MR. BLASIER: Objection. Misstates his testimony. THE COURT: Overruled. A. I'm saying that blood has the same type, and therefore, that type could have been transferred. I'm not saying it's him, it's consistent with his type. Q. (BY MR. LAMBERT) You made a presentation at a conference called Promega in late 1995, did you not. A. Yes. Q. You talked about this case? A. I did. Q. Here's a page from the proceedings in that case. I want to ask you something about that. MR. BLASIER: Objection. Hearsay. I couldn't do it. MR. LAMBERT: It's his own article. I'm asking him about something he wrote in his article about this case. THE COURT: About this case? MR. LAMBERT: About this case. THE COURT: Okay. Approach the bench. (The following proceedings were held at the bench, with the reporter.) MR. LAMBERT: This is a specific article on the test results in this case. I want to ask him what he said right there. (Court reads document proffered by Mr. Lambert.) MR. BLASIER: Which part? MR. LAMBERT: Right here (indicating), where Mr. Simpson acknowledged he cut himself. THE COURT: What do you want to offer this for? MR. LAMBERT: I want to ask him if this is the basis for his conclusion as to how the contamination on the second day of collection, that the only way it could have been, is if it was actually his blood. MR. BLASIER: This came out with -- THE COURT: Wait. I can't understand what he's saying, first. So let me try to understand what he's saying. Then I'll hear from you, okay? (Pause for Court to read document.) THE COURT: Okay. With are you saying? MR. LAMBERT: He's now saying that on the second day of collection, it's possible that some contamination took place between evidence collected at Rockingham and that found in the Bronco. I want to ask him if the basis for that, as he states here, is that the reason that that fits his theory, is that the evidence collected at Rockingham was, in fact, from Mr. Simpson. MR. BLASIER: It's a hearsay statement. We couldn't do this with Dr. Weir, when I tried to use some of his article from the Simpson case. We weren't allowed to do it. THE COURT: What was it about Dr. Weir? MR. BLASIER: He wrote an article about the Simpson case. You wouldn't let me read excerpts from it. THE COURT: What was it that he wrote that warranted you to use that? MR. BLASIER: It was the article that he had written where he talked about tape 31, as a matter of fact, and gave the wrong -- THE COURT: What did he say? MR. BLASIER: You wouldn't let me read it. MR. LAMBERT: You cross-examined him. THE COURT: Will you stop it? MR. LAMBERT: Sorry. MR. BLASIER: I cross-examined him. You can cross. THE COURT: Try to answer my question. I'm trying to get some information from you. What is it that I prevented you from asking Dr. Weir? MR. BLASIER: I wanted to read -- like Mr. Lambert wants to do -- I wanted to read from an article that he had written. THE COURT: Tell me what it is so I can understand your point. MR. BLASIER: It was a statement that he had in his paper about item 31. THE COURT: And did he -- what did he say in the paper? MR. BLASIER: He gave statistics about item 31 that were later determined to be wrong. THE COURT: Okay. MR. BLASIER: He stated his analysis there of how, gee, the defense should have done it this way; it would have gotten much more favorable results. I was not allowed to do -- I was allowed to cross on it, but I wasn't allowed to read the article. THE COURT: Okay. And you want -- you want to ask him about this highlighted part? MR. LAMBERT: Yeah. Where he acknowledged that he cut himself. THE COURT: That who acknowledged it? Simpson? MR. LAMBERT: That's a good question. I'll ask this guy. THE COURT: No, I'm not going to allow that. MR. LAMBERT: What if Simpson told him? MR. PETROCELLI: If it's an admission -- MR. BLASIER: We'll make an out-of-the-presence jury -- MR. LAMBERT: I'm entitled to ask him if he cut himself from Mr. Simpson. MR. BLASIER: Do it without the jury. THE COURT: You can do it outside the presence of the jury, but I'm not going to let you do that in front of the jury. MR. LAMBERT: Okay. Maybe I should ask him where he got this piece of information. THE COURT: Okay. MR. LAMBERT: Okay. MR. BLASIER: Outside the presence of the jury. (The following proceedings were held in open court, in the presence of the jury.) THE COURT: Okay. Jurors, you want to step out in the back? Take them back into the hallway or into my chambers. Don't let them read anything on my desk. (Laughter.) THE COURT: The jury has left the courtroom. (The following proceedings were held in open court, outside the presence of the jury.) Q. (BY MR. LAMBERT) This is a portion of your paper from the Promega Conference. When you say, on the next morning here you're, talking about June the 15th, correct Doctor? A. Correct. Q. This is the second day of Collin Yamauchi's work? A. Yes. Q. Right. And that's when evidence from Rockingham was processed that we just talked about? A. Yes. Q. And here you say in parentheticals, "where Mr. Simpson acknowledged he cut himself," right? A. Yes. Q. Mr. Simpson told you that? A. That was my understanding from the testimony. He didn't tell me that. Q. From Mr. Simpson's own testimony, you heard that? A. From the testimony of the criminal trial. Q. What testimony was that, that led you to believe that he cut himself? A. I can't recall specifically. I can't recall where I saw it. Q. Did this article -- before you presented it at Promega, it was reviewed by Mr. Simpson's lawyers? A. It was reviewed by one of their lawyers, yes. Q. Barry Scheck? A. No, Bill Thompson. Q. Bill Thompson. So Bill Thompson reviewed this article. He didn't tell to you take that parenthetical out? MR. BLASIER: Objection. Irrelevant. THE COURT: Sustained. A. He doesn't say anything about that. MR. BLASIER: It's sustained. Q. (BY MR. LAMBERT) You're sure you didn't hear that information directly from Mr. Simpson, that he cut himself? A. Pardon? Q. You're sure you didn't hear that directly from Mr. Simpson, that he cut himself? A. Yes. I never spoke to Mr. Simpson. MR. LAMBERT: That's all I have on that subject, Your Honor. MR. BLASIER: So you never got that information from Mr. Simpson, did you? THE WITNESS: No. THE COURT: Same thing he just asked. MR. BLASIER: You don't know where that came from, do you? THE WITNESS: That's correct; I don't. MR. BLASIER: Thanks. THE COURT: Okay. You want to argue it, go ahead. MR. LAMBERT: Well, Your Honor, what I want to use it for is the purpose of trying to clarify that his purpose, or his idea as to how contamination could have taken place on that second day of collection has to do with the evidence at Rockingham, one containing Mr. Simpson's blood. That's the underlying hypothesis. THE COURT: Why don't you ask him? MR. LAMBERT: Can I do it with the jury? THE COURT: No. Ask him now. MR. LAMBERT: I don't think I want to let him practice too much, Your Honor. Q. (BY MR. LAMBERT) Isn't it, in fact, the hypothesis, Dr. Gerdes? A. Well, it's not specifically that it's Mr. Simpson's, but that particular item has a lot of DNA, and has the type that's consistent with Mr. Simpson. Q. Right. That particular item that's got an RFLP result, it's directly indicative of being Mr. Simpson? A. Yes. Q. Therefore, that is likely his blood. You're saying that could have been the cause of this other? A. Most likely the same type; so, yes. MR. LAMBERT: That would be the examination, Your Honor. THE COURT: Okay. Bring the jury back in. You may examine in the manner that you have just done. MR. LAMBERT: Thank you. Can I use the exhibit? MR. BLASIER: No. THE COURT: No. MR. LAMBERT: Okay. I'll do it without the exhibit. (Jurors resume their respective seats.) THE COURT: Ladies and gentlemen, I want to announce a disclaimer. That's not my chambers. (Laughter.) THE COURT: I'm borrowing that chambers. And all the art work and everything, except for - Are not mine. (Laughter.) MR. PETROCELLI: Inside joke, Your Honor. THE COURT: You may proceed. Q. (BY MR. LAMBERT) We need to get the Bronco board. MR. FOSTER: 293 again. MR. PETROCELLI: 293, Gina. THE COURT REPORTER: Okay. Thank you. (Exhibit 293 is displayed.) Q. (BY MR. LAMBERT) Dr. Gerdes, before the brief break, we were talking about none of these evidence items that are consistent with Mr. Simpson on this particular board could have come into contact with the reference vial of Mr. Simpson and be explained by cross-contamination from that vial, correct? A. Correct. Q. So your only theory as to how any contamination could possibly account for these results is if some of the Rockingham evidence samples caused this contamination, correct? A. Correct. Q. And that would mean that the Rockingham samples were also consistent with Mr. Simpson's blood, correct? A. That's correct. Q. And the -- once again, the -- this RFLP result down here, you're not saying that was a result of contamination, are you, Dr. Gerdes? MR. BLASIER: Objection. Beyond the scope. THE COURT: Overruled. A. In that particular case, that there -- there's a very minor component. I think Dr. Cotton's testimony was about 20, or Gary Sims' testimony was around 20 nanograms of DNA in there. And it's when you combine things of that -- in that nature, I think there is a risk of -- of picking up a contaminant, especially when he estimates that the -- The RFLP results were based on just 20 nanograms of DNA. Q. (BY MR. LAMBERT) But that's just theoretical, right? You didn't see anything in the results to indicate contamination? A. No I didn't, no. Q. You're saying that's a, well, very -- A. I'm saying it's a risky kind of thing to do when you're trying to combine things, and you're working with very small quantities of DNA like that. Q. But the RFLP results are basically consistent with the prior PCR results from the same blood stain? A. The appearances are consistent, yes. Q. Okay. Now, this is the result from Rockingham. And as to this five-probe match, you're not saying that that was caused by any contamination, correct? A. No. Q. Now, are you saying that either of these results were caused by contamination? A. Which two are you talking to, number 6 and number 7? Q. Number 6 and 7. You're not saying that either 6 or 7 is caused by any contamination, correct? A. That's correct. Q. So when Cellmark and DOJ got those items and tested them. They got the correct results? A. Yes. MR. BLASIER: Objection. Foundation. THE COURT: Excuse me. Overruled. Q. (BY MR. LAMBERT) And you have no basis for saying that when those evidence items were processed by LAPD, that they did anything to cause any contamination? A. There's no direct evidence of that. Q. Let me show you a couple more boards quickly here. (Exhibit 295 was displayed.) MR. FOSTER: 320. (Plaintiffs' Exhibit 320 displayed on the Elmo screen.) MR. LAMBERT: This it which exhibit? MR. PETROCELLI: 320. Q. (BY MR. LAMBERT) This is the board showing the results of the DNA analysis on the glove. And here again, we see several RFLP matches, correct, Dr. Gerdes? A. Yes. Q. And once again, you would agree those could not possibly be caused by contamination, correct? A. The RFLP, no. Q. Yes, sir. Now, you, in regard to the PCR matches here, are you saying that any of those might possibly be caused by contamination? A. Yes. Q. Which ones? A. In the wrist area, the matches with Mr. Simpson -- that's the area that was handled immediately after the reference sample? That's the one where there's a possibility of that happening. Q. Well, Collin Yamauchi didn't handle just the wrist area, did he? A. No. He handled other areas, as well. Q. Right. So you would think if he was contaminating the wrist area, he would have contaminated other areas, as well? A. Not necessarily. Other areas may have had more competing DNA. It's a matter of how much DNA was transferred, and what the background DNA that he's amplifying the presence of, that's the state of that. Q. But it seems likely that if he was contaminating the wrist area of the glove, he either would have contaminated other areas on the glove or the control swatch that he handled immediately after that. Isn't that true, doctor? A. That's a possibility. Q. And let's finally look at RFLP results on the socks. MR. PETROCELLI: 299. Referring to 299. (Plaintiffs' Exhibit 299 displayed on the Elmo screen.) Q. This -- the results board on the socks found at Rockingham. You agree, Dr. Gerdes that those RFLP results obtained by Cellmark and DOJ are not possibly caused by contamination, correct? A. That's correct. Q. And, in fact, this 11-probe and 5-probe match together between Cellmark and DOJ showing the blood of Nicole Brown Simpson was on those socks. That's an extremely probative RFLP result. MR. BLASIER: Objection. Argumentative. Calls for legal conclusion. THE COURT: Overruled. A. Yes, it is. Q. MR. LAMBERT: And the nine-probe match showing Mr. Simpson's blood is also on the socks. That's a very significant result, isn't it, Dr. Gerdes? A. It is. Q. And do you have any reason to believe that any of the PCR results on those socks are the subject of contamination? A. No. Q. So of all of the RFLP results -- MR. PETROCELLI: For the record, that's Exhibit 299. Q. (BY MR. LAMBERT) -- of all of the RFLP results, the only one that you have any quarrel with at all is item 52? A. That's correct. Q. We probably don't need any more. (Indicating to boards.) Item 52 was one of the five Bundy blood drops, correct? A. That's correct. Q. And what's your basis for stating that that could have been caused by contamination, even though it's an RFLP result? A. Well, there's several different aspects. Number one, extremely degraded sample -- there's a very small amount of analyzable DNA. And it's at -- on the borderline of what's a level that you can actually do an RFLP on. And so because there's a very small amount of DNA there, the concentration of DNA, at least in the range in which, theoretically, you could have cross-contamination. The second thing is the fact that it was handled at that time subsequent to, or at the same time as the reference sample. And from experience of other laboratories, that's a situation where you have an extreme risk of the possibility of cross-contamination. Q. Okay. A. There's errors, where that has been shown to be the cause of those errors. Q. So you're saying that's a low amount of DNA in that particular RFLP result, correct? A. Very small amount of analyzable DNA, highly degraded sample. Q. About how much analyzable DNA would you say, 25 to 50 nanograms? A. About 25 nanograms is what Robin Cotton estimated. Q. Right. She wouldn't have been able to get an RFLP result unless she had about 25 nanograms to analyze with DNA? A. That's correct. That's what I'm saying. It's right on the borderline of what you need to get a result. Q. She did get a result. You're not challenging her result, correct? A. No. I'm saying that that result, because it is on the borderline of RFLP, you're now in the realm of where there's a risk of cross-contamination also showing up on an RFLP type of test. Q. 25 nanograms? A. Correct. Q. At the very same time, as a matter of fact, right before Collin Yamauchi handled that evidence item 52, we've just seen how he handled control for 52, correct? A. Yes. Q. And in order to contaminate the control for 52, if he got on as little as point 1 nanograms of DNA, it would have registered on the PCR test, correct? A. I'm not sure I'd go as low as point 1, but much smaller amount, certainly one or around there. Q. So something on the order of 100 times less DNA would have shown up on the PCR test if the control item was contaminated, and would have had to have contaminated the evidence item in order to get an RFLP test? A. It should have shown up. Q. Right. Not very likely, is it, Doctor? A. Again, these controls don't always come up. And so there are things -- other explanations that are theoretical explanations to explain that. But it should have come up. Q. The control was tested right, then, by Collin, and it didn't show anything at all, did it? Now. Let's go back just briefly to Mr. Yamauchi's work on those two days. MR. LAMBERT: Let's mark this as the next in order. THE CLERK: 2265. (The instrument herein referred to as list of items - 6/14/94 and 6/15/94 was marked for identification as Plaintiffs' Exhibit No. 2265.) MR. LAMBERT: I'll give you a copy, too. Easier to see. (Counsel hands Plaintiffs' Exhibit 2265 to witness.) Q. Now, Dr. Gerdes, this is a list of the two different runs done by Collin Yamauchi on 6/14 and 6/15. We've listed the evidence items tested. The exemplar you did, one exemplar that day for Mr. Simpson, and all other controls. And you will agree that Collin Yamauchi, when he did those sample tests that day, employed all of those controls, correct? A. Yes. Q. And let's see. The next day -- then the next day he had 19 things, 19 samples tested. And again, we see all the controls that were used by him when he ran those two tests, right? A. Yes. Q. Okay. Let's see the bottom. So between the two days, 42 evidence -- 42 samples were run through the process, 21 of them evidence samples, and 21 of them controls, correct? A. I'd have to add it up quickly. I'll I take your word for it. Q. And will you take my word for it that, therefore, 50 percent of the samples that went through the process were actually controls? Right, Doctor? A. Yes. Q. And every single one of them was negative for DNA, correct? A. That's correct. MR. LAMBERT: I have no further questions. REDIRECT EXAMINATION BY MR. BLASIER: Q. You testified that those controls were clean. Do you remember that? A. Yes. Q. And when you take a substrate control as demonstrated by Andrea Mazzola in their video of how to do it right, you should have some dirt on the substrate controls. Shouldn't you? A. That would be -- I mean yes. You should. Q. And these controls were almost -- were clean in the sense that there was no evidence of any dirt on them; isn't that true? A. That's what's been recorded. I haven't actually seen them myself, the actual swatches. Q. What's "dry labbing"? What does that term mean? A. Well, dry-labbing, means that you -- say you do an experiment and you don't -- you just fake the results. Q. Incidentally, you're aware of testimony by Andrea Mazzola from August of 1994, that she put her initials on all the bindles that she prepared prior to the time these evidence items from Bundy and Rockingham went to Mr. Yamauchi? MR. LAMBERT: Beyond the scope, Your Honor. THE COURT: Overruled. A. Yes. I'm aware of that testimony. Q. (BY MR. BLASIER) And you're aware that her initials don't show up on any of those bindles? A. That's correct. Q. And you're aware that she testified that according to the procedure used by the LAPD lab, the swatches that went into the bindles were dry at the time they went in there, correct? A. Yes. Q. And you're aware that one of the Bundy drops, 47, the bindle that was later examined by Mr. Yamauchi, has a wet blood transfer stain -- several of them, actually? A. I'm aware. MR. LAMBERT: Beyond the scope. Irrelevant. Has nothing to do with this witness's testimony. THE COURT: Overruled. Q. (BY MR. BLASIER) When you talk about the reliability of RFLP results, are you making any statements whatsoever with respect to the source of the blood, that produced the spot, that produced RFLP results? A. No. MR. LAMBERT: Objection. Beyond the scope, Your Honor. THE COURT: Overruled. Q. (BY MR. BLASIER) In fact, the stain that Mr. Lambert asked you about with what -- with the five-probe patch for Nicole Brown Simpson, that had over 13 hundred nanograms from it, didn't it? A. Yes. There's a lot of DNA in that. Q. And that's more DNA than in all of these other stains combined, isn't it? A. Yes, it is. Q. Now, the back gate, 117, when you testified about the reliability of those RFLP results. You weren't saying anything about the source of the blood that came off the back gate, were you? A. You can't say that. All you can say is the result that you get. Q. And the results that were obtained -- in fact, there was large amount of DNA in 117, as well? A. Yes, there was. Q. Far more than all of the Bundy stains put together, right? A. That's true. Q. And would you agree that the stain on the sock, and the stain from 117, are both consistent with blood coming from a reference tube, it could have? A. In terms of the amounts, yes; that's in that range. Q. Now, let's talk about the Bronco, quickly. You testified, did you not, that stains 30 and 31 -- that the original tests that were done in June were not reliable because the controls showed extraneous alleles, correct? A. That's correct. MR. P. BAKER: Looking at board 293. (Defendants' Exhibit 293 displayed on the Elmo screen.) Q. (BY MR. BLASIER) When stains 30 and 31 were processed, there was such a small amount of DNA, they couldn't do RFLP testing on it, correct? A. That's correct. Q. And it was only after two months later, in August, did they go back and find, lo and behold, a lot more DNA, correct? MR. LAMBERT: Objection. Beyond the scope; leading; argumentative. THE COURT: I'll sustain that part. Q. BY MR. BLASIER: In 303, 304, 305, which were collected on August 29, there is a lot more DNA than there was in the original stains, correct? A. That's correct. Q. Much higher quality, too, right? A. I believe so, yes. Q. And it was from the console, 303, 304, 305? A. Yes, from the same area. Q. Now, about the Rockingham glove -- MR. P. BAKER: That is board 320. MR. BLASIER: I'm sorry? MR. P. BAKER: 320. (Defendants' Exhibit 320 displayed on the Elmo screen.) Q. (BY MR. BLASIER) Now, your testimony about the RFLP results only related to DNA consistent with the victims, correct? A. That's correct. Q. The only DNA found on the Rockingham glove consistent with Mr. Simpson were extremely small amounts of DNA in the wrist area, correct? A. That's correct. Q. And these gloves -- this glove was handled right after Mr. Yamauchi opened Mr. Simpson's reference vial, correct? A. That's correct. Q. And Mr. Yamauchi testified at the criminal trial that he didn't remember changing his gloves between opening the reference vial and processing that glove. Do you recall that. MR. LAMBERT: Objection. Calls for hearsay, what he testified to -- somebody else testified to at the criminal trial. THE COURT: You can rephrase that. I'll sustain the objection. You may ask him if that was a factor that he considered. Q. (BY MR. BLASIER) Was it a factor that you considered in deciding that Mr. Simpson's -- or blood consistent with Mr. Simpson on the Rockingham glove came from possible cross-contamination, the packet that Collin Yamauchi testified in the criminal trial, he didn't know whether he changed his gloves? A. Yes. Q. And the areas it, the wrist areas where those stains were found, were areas that were handled by Mr. Yamauchi with his hands, right after opening Mr. Simpson's reference blood, correct? A. That's correct. Q. And you're aware of the testimony? You relied on the testimony of Mr. Yamauchi that the blood came out of that reference tube, onto his gloves, and his chemwipes, correct? A. Yes. Q. Now, you gave some testimony with respect to cross-contamination happening sometimes. You'll see evidence of more than one person as evidence of contamination incident, that's what you saw on 30 and 31, correct? A. Correct. Q. And sometimes you may only see evidence of one person. And tell me the example where that could happen? A. Where you would only see the evidence of one person? Q. Yeah. A. It's actually from two? Q. Yeah. A. That would be possible, certainly, if you had two homozygous individuals, the combining of those two would be, actually look -- appear to be one person, but it's actually from two. Q. How about excessively degraded samples? A. Yes. Q. Okay. A. Excessively degraded samples would be an example where the initial sample is so degraded, that the second contaminating DNA over -- over -- well, the original type, and all you see is the contaminant. Q. And every one of the Bundy drops was excessively contaminated, weren't they? A. They were. Q. Unlike 117, which had high quality DNA, correct? A. Correct. Q. Now, from the results that Mr. Yamauchi got on the 14 and 15 from the Bundy swatches, you cannot conclude from that anything about the source of the blood on those swatches, can you? A. No. Q. Mr. Lambert asked you questions about transfers of DNA, and you mentioned something about glasses. Do you recall reviewing the videotapes of Andrea Mazzola collecting evidence at the Rockingham crime scene? A. Yes. Q. Did you make any observation about her collection technique, vis-a-vis, her glasses in that video? A. Yes. There's a sequence there where she actually does take a glove and adjusts her glasses with her gloved hand and adjusts her glasses. Q. Mr. Yamauchi never took any substrate controls from the glove, did he? A. No. Q. Now, Mr. Lambert asked you what was your basis for concluding that item 52 might be the result of cross-contamination. Did you state everything that you considered in making that assessment? A. I believe I did. I may have forgotten something. Q. Now, he also asked you about validation studies. Every case that you look at, you look at validation studies of the laboratory that you're looking at, correct. MR. LAMBERT: Objection, Your Honor. Beyond the court order. MR. BLASIER: He opened it up. MR. LAMBERT: No, no, no. THE COURT: You're not getting into the area where I ruled, are you? MR. LAMBERT: Yes, he is. THE COURT: If you are, the objection is sustained. MR. BLASIER: May we approach? THE COURT: No. Q. BY MR. BLASIER: Now, you were asked about forensic testing, and you don't run a forensic lab correct? A. That's correct. Q. Now, the technology that's used by crime labs is technology that came from the clinical setting, in the medical setting that you work in, correct? A. The fundamental science is molecular biology. Then it goes to the clinical field. And then it goes to forensics. Usually that's the way it goes, yes. Q. In the forensic community, they didn't develop any of the fundamental sciences in just forensics? A. No, they outlined the fundamental sciences developed in molecular biology. Q. And would you agree that one of the critiques of the forensic community is the lack of controls that they have in terms of sample collection, preparation, contamination controls, et cetera? MR. LAMBERT: Objection. Vague and ambiguous. Critiqued by whom? THE COURT: Sustained. Q. (BY MR. BLASIER) Forensic labs that do this for a business, generally come in and say it's okay, don't they? MR. LAMBERT: Objection. Argumentative. THE COURT: Sustained. Q. (BY MR. BLASIER) By the way, Dr. Gerdes, how many crime scenes has Robin Cotton processed? A. I believe she testified that she does not go to crime scenes, so I would say none. Q. And she has no forensic experience whatsoever prior to Cellmark, correct? A. That's correct. Q. And Gary Sims, in the last five years, how many crime scenes has he processed? MR. LAMBERT: Objection. Lack of foundation. Q. (BY MR. BLASIER) Do you know? A. I notice he testified he hasn't gone to a crime scene in five years. MR. LAMBERT: Hearsay. THE COURT: Well, it's hearsay, but we'll allow it. MR. BLASIER: From all of the techniques that are used in forensics that you've testified here about, are techniques that were used previously, or for longer periods of time in the clinical setting that you do your work in, correct? A. That's correct. Q. And all of the issues that you talked about, contamination and sample processing, are all extremely important issues in the work that you do every single day, correct? A. Yes, that's true. Q. And in your opinion, do you need to be a forensic scientist in order to have any knowledge about DNA technology, as you do in your clinical lab? A. No. Q. In fact, in the 35 times that you've testified, this is always brought up, that you have a clinical lab and not a forensic lab; is that correct? A. That's true. Q. You've been qualified by judges 35 times to testify as an expert in this field? MR. LAMBERT: Objection. Irrelevant. THE COURT: Overruled. A. Yes. That's true. MR. BLASIER: Thank you. That's all I have. RECROSS-EXAMINATION BY MR. LAMBERT: Q. You will acknowledge that Robin Cotton and Gary Sims are forensic scientists? A. Yes. Q. An they do, every day, test evidence from crime scenes, correct? A. They -- they test the evidence; they don't collect the evidence. Q. They test it? A. Yes. Q. You never test evidence at crime scenes? A. That's true. Q. Now, you were asked by Mr. Blasier whether any of these controls were dirty, and said you didn't know, right? Let's look at the very first control, the one I've been asking you all the questions about. Number 52 control. Here's Collin Yamauchi's notes. Move them over a little bit. See what it says right there? What's that say? A. Is says "pink." Q. Pink color, right? A. Yes. Q. That was taken from the driveway at the back of the Bundy residence, wasn't it? A. Yes. (Plaintiffs' Exhibit 333 displayed on the Elmo screen.) Q. That driveway has got a pink coloration to it, doesn't it, Doctor? A. I believe it does. Q. Dr. Gerdes, how much has Mr. Simpson paid you already, thirty, forty thousand dollars? MR. BLASIER: Objection. A. In this civil case? Q. Total. A. For both cases? Q. Yeah. MR. BLASIER: Objection. Irrelevant; outside the scope. THE COURT: Overruled. A. I am not -- my laboratory has a policy of basically any consulting fees go to the laboratory. I've received zero. Q. How much has the lab received? A. Somewhere around forty thousand, probably. MR. LAMBERT: No further questions, Doctor. FURTHER REDIRECT EXAMINATION BY MR. BLASIER: Q. How much is your lab receipt for the work in the civil case? A. We have a retainer and -- Q. How much? A. Five thousand. Q. Okay. Thank you, sir. THE COURT: Everybody finished? MR. LAMBERT: I'm done. THE COURT: Okay. Thank you. Ladies and gentlemen, you're excused until tomorrow at 9 o'clock. Don't talk about the case. Don't form or express any opinions. (Recess.) (The following proceedings were held in open court, outside the presence of the jury.) THE COURT: I would like to address the motion to quash the subpoena by Sojourn Services. MS. WITHEY: Good afternoon. Pamela Withey, appearing for Sojourn Services for Battered Women in the Ocean Park Community Center. We have filed a motion to quash the subpoena on Vivian Rothstein, Executive Director of Ocean Park Community Center, requesting any and all call sheets prepared by or for Nancy Ney dated June 7. The basis for our objection is set forth in the moving papers, which we have filed with Your Honor. I think it's fairly simple, as it comes squarely within Evidence Code Section 1037.5 and 1037.6, which requires the counselor and the shelter to claim the privilege unless there is some exemption. And there is none in this case, as there is no showing that there was any waiver of the right to confidentiality and no showing that any caller would be deceased. Therefore, these callers, if any exist, are not involved in this case, and any callers have their right to this privacy and to this privilege; and therefore, we are asserting that. And I do believe 20 -- I'm sorry, 1037 does apply to this case, despite the argument of defense counsel, because it squarely defines who a domestic violence counselor is. And clearly, Nancy Ney fits that definition. And it clearly defines what a confidential communication is. And this entire code section addresses the need for confidentiality and privilege by women calling into hot-line numbers dealing with domestic violence. The information on a call sheet, which is what is being requested here, would clearly come within the definition of a confidential communication. And the person who was the domestic violence counselor at the time of the confidential communication is the one that must, and we do indeed now, assert that privilege. I'll address any questions the Court may have on this. I think it's pretty straightforward. THE COURT: How many call sheets are we talking about? MS. WITHEY: First of all, the mere fact that there is or is not other calls, in and of itself -- THE COURT: Come on. How many call sheets on June 7? MS. WITHEY: We believe there is one other. THE COURT: Okay. And, Mr. Baker, you signed this, so I'll assume you wrote this, unless Ms. Bluestein name is all over it. What is it you want to derive from the other documents? MR. BAKER: Nancy Ney first testified, as the Court will recall, that she premarked the call sheets with the date. And I want to see -- because she said that that call came in at 11 o'clock. We don't believe that call sheet is an accurate call sheet relative to -- that pertains to anything relative to this case. The point being that she has said that she was at that institution -- THE COURT: Mr. Baker, I'm really -- MR. BAKER: We want to see if there are any other call sheets. THE COURT: What part do you want to see? MR. BAKER: I want to see, number one, the date. Number two, she says we don't write on the call sheets because they're only used for funding purposes. I want to see if any other call sheet has any writing on it. THE COURT: What kind? MR. BAKER: As is indicated in our opposition, they can take out anything that would identify the caller in any way, shape, or form, and show that it's just redacted, to see if there's anything on it. If it comes out -- THE COURT: Okay. Just a minute. MS. WITHEY: Let me explain where our problem is. Any confidential information received from a caller -- now, it may be true that the date is not confidential information received from the caller. This code section says the confidential communication of any information, whether it be age or whether it be race or whether it be the circumstances of the abuser or whatever, any information obtained from the caller by Nancy Ney is privileged. Now, if counsel's only talking about the date, that information is not obtained from the caller. If he's talking about Nancy's name, that's not obtained from the caller. And if we're talking about a time, then that would not be information obtained from the caller. Any information obtained from the caller would be privileged. I'm going to refer you specifically to Evidence Code 1037.2. Confidential communication is information transmitted between the victim and the counselor in the course of their relationship and in confidence by means which so far as the victim is aware, discloses the information to no third person other than those who are present to further the interest of the victim in the consultation, et cetera. So what we will not -- what we believe is privileged and is privileged is in the information. Now, if you're interested just in a date, Nancy's name and the time, and delete everything else and make -- and not reveal any information that was obtained from the caller -- THE COURT: I'll tell you what, Mr. Baker: My thought is, if -- let me see if this would meet your needs. If the holder of the document redacts whatever has been entered that would indicate to you that there were entries there -- MR. BAKER: Correct. THE COURT: -- would that be sufficient? MR. BAKER: Yes, sir. MS. WITHEY: Say that again? THE COURT: In other words, leave the date on. Redact everything else that's been entered. MR. PETROCELLI: But -- MS. WITHEY: In other words, just completely black out -- THE COURT: If you redact it, you're going to represent -- will you represent to me, as an officer of the Court, that you're redacting items that have been entered onto the document? MS. WITHEY: Yes. THE COURT: I don't want you to make a redaction where something is not to be redacted. MS. WITHEY: Yes. If it was blank, it will stay blank. THE COURT: Yes. So it will have some probative value? So there were items entered. And it was redacted. MS. WITHEY: Yes. Therefore. The information not being -- THE COURT: Exactly. MS. WITHEY: -- whoever. THE COURT: We don't -- Mr. Baker doesn't care about the information. He's concerned about how the forms were filled out by the witness. MS. WITHEY: So none of the writing will show, none of the information? THE COURT: Right. MS. WITHEY: One moment. I was just -- Can you do that? (Indicating to member of the audience.) I was conferring. THE COURT: My suggestion -- and, Mr. Baker, would it be agreeable with you if they make a -- redact a copy, redact that, and make a copy of that so that it can be -- MR. BAKER: Of course. THE COURT: Okay. MR. BAKER: The date, the time and her name is not information contained therein, and that will not be redacted. THE COURT: Her name? MR. BAKER: The name of Nancy Ney. THE COURT: Exactly. MS. WITHEY: Her name -- to make a long story short, this will then fall squarely within the privilege, that no information obtained from this caller will be revealed? THE COURT: That's right. MS. WITHEY: Thank you. THE COURT: Thank you. MS. WITHEY: We'll need some time to do that. THE COURT: Two copies, one for each, or do you want -- MS. WITHEY: We'll make a copy. We'll do that tomorrow. I'll make arrangements with you. MR. BAKER: Okay. Just fax it to both sides. MS. WITHEY: Thank you, Your Honor. MR. PETROCELLI: Your Honor, may I be heard briefly on this Lee situation? THE COURT: The who? MR. PETROCELLI: Henry Lee situation. THE COURT: Briefly. MR. PETROCELLI: Here's the problem, Your Honor. After Dr. Lee's deposition was taken in September, we filed a motion in limine, number 11, that was precipitated specifically by Dr. Lee's deposition. His deposition is replete with testimony about how, in effect, he could have done a better job. Your Honor ruled that to render our motion, and indicated the parameters of your ruling in transcripts which we have cited at various times throughout the trial. Immediately after that ruling on September 23, I wrote to Mr. Baker's office and I said: "Dear Bob: "If you intend to make any reference to Dr. Henry Lee in defense's opening statement, we would request that you immediately designate those portions of Dr. Lee's testimony you intend to offer into evidence." Going on to explain, this is in light of your -- The Court's ruling September 23. No response to that letter was received. On December 1, 1996, I wrote a letter to Mr. Baker, indicating that we had still not received the designation of the portions of the videotaped deposition of Dr. Henry Lee, and we anticipate having to make a number of objections, and would like to receive them. Okay. No response. On Monday, in the afternoon, we get the designation. We immediately go to work on it. We discover that they did not redact or eliminate a single sentence of Dr. Lee's testimony on direct. They designated the entire direct, except for our objections, which they deleted. So in their designation, Your Honor, for Dr. Lee's deposition, all of these references are simply to all of the testimony without our objections, the entire direct, as though this Court never entered its ruling. In other words, they completely disregarded this Court's ruling and paid no attention to it at all, thereby shifting the burden on us to go through this thing line by line, which we did. And at Your Honor's request, we worked late at night to get it done. And we indicated all of our objections to the testimony that they have designated. And I believe that the Court, unfortunately, because of the way that this was handled, now has to go line by line on the deal. I'm prepared to meet and confer with Mr. Baker about this, but he has told me he will not meet and confer with me. I don't know what else to do, Your Honor. I'm not going to surrender the rights that we have obtained. This was an important motion. And if you go through the testimony, the first 58 pages of Dr. Lee's deposition are directed to his qualifications, concluding with a statement that he's the world's greatest criminalist. I mean, 58 pages of deposition testimony, that's more than we read in this entire case so far. And then there is page after page, Your Honor, about how he offered to help the LAPD solve these murders and they declined. Who cares? It's totally irrelevant. Then he gives a big lecture. THE COURT: Look -- MR. PETROCELLI: So -- THE COURT: Mr. Petrocelli, if you can't agree, I said I would go line by line, and I'm ready to do it. MR. PETROCELLI: I'm trying to spare the Court. THE COURT: You're not -- you know, I'm just hearing argument on something that's not going to be helpful. If you gentlemen are going to meet and confer, meet and confer. If you don't want to meet and confer, the only thing I can do is go through and -- and rule line for line and -- MR. PETROCELLI: Let me offer a suggestion. In going through this the last hour -- I've gone through about 40 percent of it. I'm prepared to eliminate some of my objections, maybe about 20, 30 percent of them so far. I'm also prepared to annotate this in a way to make it easier for the Court, so you can see the subject matter of each of these objections. If we dispense with playing this deposition tomorrow, then you're not under this artificial time pressure, and I can, you know, redo the objections, make it easier for the Court to deal with this, and we can play this video sometime next week. That would be my proposal. MR. BAKER: Your Honor, they've made at least -- before we got a court order going back to take the depositions, two or three motions to preclude the deposition of Henry Lee. In the objections that were filed by the plaintiffs in this case, the only thing that we could possibly play to the jury, if we adhere to their objections, are the objections by Mr. Medvene. So they'd hear Dr. Henry Lee, then they'd hear about 45 minutes of objections. Then that would be the end of the tape. Not terribly probative. I think that this document is in bad faith. I'm not going to sit down and start with this as a negotiating tool. THE COURT: Mr. Baker, I don't think it's necessarily in bad faith, because I read the objections; and clearly, there are matters that ought not to be in here, like Dr. Lee's pre-American history, et cetera. Those are matters which I'm going to exclude. MR. BAKER: I disagree with the Court. THE COURT: That's my job; I make a ruling, and you get to take me up if I'm wrong. MR. BAKER: I understand that. THE COURT: So there are going to be some rulings. And it seems to me that if you're not able to meet and confer on this, we've got to get the show on the road. MR. BAKER: Let's go. Let's do it. THE COURT: Okay. MR. PETROCELLI: Would it be helpful if we dispense with this for tomorrow and I submit my objections? I'm prepared to submit -- THE COURT: It's going to take the rest of the day for me to rule on this, anyway, so -- it's going to be the defense's problem to do the redactions on the videotape, so if they want to work on it all night, that's their business. MR. PETROCELLI: We're going to have to prepare a videotape in response. And I guess Your Honor -- THE COURT: I'll have the whole weekend to do that. MR. PETROCELLI: Fair enough. We don't have to play it tomorrow, then. THE COURT: All right. MR. PETROCELLI: Okay. THE COURT: Okay. MR. PETROCELLI: First one, Your Honor, just to make clear, the column on the left is Mr. Baker's designation, and the specific line and page reference to which we object are under the heading "Objection." MR. GELBLUM: It's less than all of the designations. THE COURT: Okay. Page 11, lines 11 through 14. Okay. Objection sustained. 11, 19 through 11, 22 -- MR. BAKER: Background information. THE COURT: Objection sustained. Irrelevant. Does not go to his professional competence. All of these objections with regard to background, the Court is sustaining on the basis of the fact that it does not go to the witness's professional competence. Page 12, 13 -- let's see. The objection is page 13, lines 10 through 16? MR. GELBLUM: Correct. THE COURT: Objection sustained. Background not relevant to the issue. We seem to be losing our audience. (Laughter.) MR. GELBLUM: There's a typo on the next one. It should be 13, 22 instead of 12, 22, Your Honor. MR. BAKER: This is basic background information, Your Honor. THE COURT: That's 13, 10 through -- didn't I just -- MR. GELBLUM: No, the next one. You did just rule on that. THE COURT: I see what you're saying. Okay. MR. GELBLUM: 13, 22 to 14, 5. THE COURT: 13, 22 to 14, 5. MR. BAKER: Your Honor, there's no reason to chop up the video because of information -- the background information like that. THE COURT: That's stricken. Irrelevant background. 14, 24 to 15, line 7, that's stricken. Same reason. 15 -- page 15, lines 15 through 17 -- MR. BAKER: Judge, what you've stricken -- they'll think he's unemployed for a couple of years because you've taken out where he was employed. THE COURT: That's stricken. MR. BAKER: Your Honor, did I understand you to say you're striking -- THE COURT: 15, lines 15 through 17. The question is stricken. 15, 20 -- MR. BAKER: When he went to John Jay College of Criminal Justice is stricken? THE COURT: No. Just your question. The answer may remain. Lines 18 through 19 may remain. 20 through -- 15, lines 20 through 16, 18, that may remain. THE COURT: What's Peter DeForest got to do with this deposition? MR. BAKER: Peter DeForest was, and is, a criminalist that they designated as an expert, got the Court to allow him to sit in on the deposition, and whose deposition was taken in this case as an expert witness for the plaintiffs, and he sat through the whole two days of it. THE COURT: Okay. 16, 25 to 17, 10 is okay. 17, 15 to 17, 25 is okay. 19, 1 through 6 is okay. MR. PETROCELLI: Your Honor, withdraw the objection on the next one, 21 to page 22 there. Okay? THE COURT: Okay. 23, 5 through 11, that's stricken. Doesn't seem to be relevant. MR. PETROCELLI: Incidentally, Your Honor, would you like a larger text to make it easier to work with? THE COURT: No, not really. This way I can go four pages at a time. Okay. MR. PETROCELLI: Okay. THE COURT: 24, 7 through 9 -- MR. PETROCELLI: That discussion continues, Your Honor, on the next page or so about the lab. MR. BAKER: Background information about what Gerdes is saying about a laboratory and how you have flows. THE COURT: 24, line 7 through 9, 12 through 18, 21, 21, 22 -- I'm sorry, that's 24, line 21 through line 25 may remain. MR. LEONARD: Your Honor, did you strike anything on 24? I don't -- THE COURT: No. MR. LEONARD: Okay. Thank you. THE COURT: 110 through -- I'm sorry. Page 26, line 10 through page 27, line 21 may remain. Page 27, line 24, page 28, line 1 may remain. Page 28, line 6 through page 29, line 1 -- MR. GELBLUM: It's actually a little break in subject matter, beginning at -- THE COURT: Line 22 -- let's -- page 28 is okay up to line 21. Okay. From page 28, line 22 to -- MR. LEONARD: What page? THE COURT: Page 31, line 12 are excluded. MR. LEONARD: Your Honor, I didn't hear where that started. I heard 31, line 12. THE COURT: Started at 29, page 29. I'm sorry? Page -- it started at page 28. MR. PETROCELLI: Line 22? THE COURT: Line 22. MR. LEONARD: Your Honor, may I be heard on that? THE COURT: Go ahead. MR. LEONARD: That goes directly to his qualifications. The fact that he is so qualified, his representation is so outstanding that he's asked by a governor in another state to get involved in a case. THE COURT: You don't need to. You got all that gory detail in there, and that's irrelevant. MR. PETROCELLI: No other expert has been permitted -- MR. LEONARD: Excuse me, Mr. Petrocelli. THE COURT: Go ahead. MR. LEONARD: Also you've excluded on line -- on page 31, unless I misheard you, that he's got 30 to 40 cases pending in other states. That also goes to his qualifications. THE COURT: I'll leave that out. MR. LEONARD: You'll leave that out? THE COURT: Yeah, I'm striking it. MR. LEONARD: On what basis, Your Honor? Every expert that has been up there has been asked about how many cases they have pending, how many cases they're involved in. THE COURT: I don't think so. MR. PETROCELLI: That hasn't been the case at all, Mr. Leonard. THE COURT: Page 30, line 13. MR. LEONARD: 30? MR. GELBLUM: I thought -- MR. LEONARD: You already excluded that. MR. PETROCELLI: No, he went up to line 12. 30, 12 he went up to. THE COURT: No, it was -- I went to 31, line 12. MR. GELBLUM: Right. MR. PETROCELLI: Excuse me. THE COURT: Okay. And then from 31, strike that. Yeah, from 31, line 12 -- line 13 to page 33, line 19, the Court will allow. I'm sorry. Make that through line 19. 33 line 19. To line 19, the Court will allow. MR. GELBLUM: On that page, it's just the next three lines we object to. MR. PETROCELLI: They're dropping like flies. MR. P. BAKER: You can't clear the courtroom right now, Judge; it's already clear. (Laughter.) (Mr. Baker waves white handkerchief.) MR. BAKER: Judge, we're not going to finish tonight. I know that we're not going to be able to play this tonight. He got his way. I understand it. THE COURT: What are you surrendering to? I don't understand. MR. BAKER: We're not going to go through -- the deposition is 200 and -- MR. GELBLUM: I think it's -- MR. BAKER: It's 383 pages. We already got 10 percent of it done. We're not going to finish it tonight. So I surrender. We'll go through it and we'll take his deals and we'll work over the weekend and we'll get it done. I mean, I admit defeat. I wanted to play it tomorrow. I admit defeat. THE COURT: I just want you guys to work it out, that's all. MR. PETROCELLI: We all just want to get along, Your Honor. (Laughter.) THE COURT: I've heard those words somewhere. MR. BAKER: Want to -- MR. PETROCELLI: Why can't we all get along? MR. BAKER: Withdraw your objections and we'll get along with you perfectly. MR. P. BAKER: We won't be able to play it until after we get back from Christmas break. THE COURT: You -- MR. PETROCELLI: You take a day off? MR. P. BAKER: We have four, five depositions to read tomorrow. MR. PETROCELLI: All right. Read those depositions and get it over. THE COURT: All I have to say for the record, please, at both sides -- all sides have progressed and I don't think anybody's really been dilatory -- hard fought, not dilatory. I appreciate it. MR. PETROCELLI: Thank you very much, Your Honor. MR. P. BAKER: Judge, we're thinking of proposing that if it's possible -- I don't know if we can contact the jurors about going dark tomorrow and depositions are only going to take about 30 minutes, 45 minutes. I can shove it up next week or the week when we return. THE COURT: That's all you have for tomorrow? MR. BAKER: We don't have any live witnesses 'cause we anticipated this. THE COURT: Tomorrow's Friday? MR. P. BAKER: Tomorrow's Friday. MR. PETROCELLI: Okay by me. THE CLERK: We'll get the jury. THE COURT: Okay. Monday, 8:30. MR. BAKER: Yes, sir. (At 4:00 P.M. an adjournment was taken until Monday, December 16, 1996, at 8:30 A.M.) |