SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
HON. HIROSHI FUJISAKI, JUDGE
REPORTER'S DAILY TRANSCRIPT
JANUARY 16, 1997
VOLUME 44

(Jurors resume their respective seats.)
THE COURT: Good morning.
JURORS: Morning.
MR. PETROCELLI: Morning, Your Honor.
MR. BAKER: Morning, Judge.
MR. LAMBERT: Morning, Judge.
MR. MEDVENE: Morning, Your Honor. Officer Guzman. ANGELICA GUZMAN,
called as a witness on behalf of the Plaintiffs, 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 Angelica Guzman, A-n-g-e-l-i-c-a, last name
is spelled G-u-z-m-a-n. DIRECT EXAMINATION BY MR. MEDVENE:
Q. What is your business or occupation?
A. I am a police officer for the Police Department of Los Angeles.
Q. And were you at 360 Rockingham the morning hours of June 13,
1994?
A. Yes.
Q. How long had you been a police officer at that time?
A. For approximately a year and a half.
Q. How long had you been working in the field?
A. Approximately four months.
Q. Was your assignment that morning, in part, to watch a Bronco that
was parked in front of 360 North Rockingham?
A. Yes.
Q. And what hours were you at that location?
A. I would say approximately from 7 o'clock in the morning until
about 4 o'clock in the evening.
Q. Sometime around 3:30, did you fill out an impound report for
the Bronco?
A. Yes.
Q. How many impound reports approximately had you filled out prior
to that time?
A. Approximately four or five.
Q. We're going to put on the TV monitor what's previously been
marked 271. I ask you to --
MR. MEDVENE: Let's see if we can focus it a little bit better. Can
you go down, scan down to the bottom of it.
(Elmo adjusted.)
Q. (BY MR. MEDVENE) Can you take a look at the monitor, Mrs. Guzman.
Is that the inventory report that you filled out?
A. That's correct.
Q. And is that your name and your badge number?
A. That's my name and my serial number, sir.
Q. And Officer Thompson was with you on that occasion?
A. Correct.
MR. MEDVENE: Now, can you, Mr. Foster, go to the body of the report,
I know there's certain Y's and N's.
(Elmo adjusted.)
Q. (BY MR. MEDVENE) See the Y's and the N's?
A. Yes.
Q. What does Y mean and what does N mean?
A. Y means yes and N means no.
Q. Can you move it over to the left a little, please.
(Elmo adjusted.)
Q. You see under battery and alternator, there's a cross in the Y
column?
A. Correct.
Q. Did you put that cross there?
A. Yes.
Q. Did you notice a battery in the car on that occasion before you
put the cross there?
A. No.
Q. Under the battery it says generator and alternator; is that
correct?
A. Yes.
Q. Did you put an X under the Y column?
A. Yes.
Q. Did you observe a generator or alternator before you put the X in
the Y column?
A. No.
Q. Why did you signify yes, that the vehicle had a battery and
alternator even though you did not see the battery and alternator?
A. I put yes because the vehicle appeared drivable.
Q. Did you -- I notice in the next column it says vehicle appears
operable. Do you see that?
A. Yes.
Q. And you put an X there?
A. Yes.
Q. Is that what you -- you confirm that you thought it appeared
operable?
A. That's correct, sir.
Q. Why did you think it appeared operable?
A. The vehicle didn't have any damage, it had four wheels, there was
no debris on the vehicle, and it looked fairly clean; that's the
reason why I believed it was operable.
Q. Okay. So if you thought the vehicle was operable, why then would
you, without knowing if it had a battery or alternator, check yes to
those columns?
MR. LEONARD: Objection, leading, asked and answered.
THE COURT: Overruled.
A. I made the assumption of putting yes on the battery and
alternator because the vehicle appeared driveable.
Q. (BY MR. MEDVENE) I don't mean to embarrass you, I also don't know
where it is, do you know where the alternator is on a vehicle?
A. It's underneath the hood, sir.
Q. Somewhere underneath there?
A. Somewhere under there.
Q. Okay.
(Laughter.)
Q. During your hours watching the Bronco as part of your duties, did
you ever enter the Bronco?
A. No.
Q. Did you ever open the hood?
A. No.
Q. Ever open the trunk?
A. No.
Q. Ever open any of the doors?
A. No.
Q. Did Officer Thompson ever open the hood?
A. No.
MR. LEONARD: Objection, lack of foundation, calls for speculation.
THE COURT: Sustained.
Q. (BY MR. MEDVENE) In your presence, did Officer Thompson ever
open the hood?
A. No.
Q. The doors?
A. No.
Q. The trunk?
A. No.
Q. In your presence, did anyone ever open the car?
A. No.
Q. Ever open the trunk?
A. No.
Q. Ever open the hood?
A. No.
MR. MEDVENE: Thank you very much. I have nothing further.
THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. LEONARD:
Q. Good morning, Officer Guzman.
A. Good morning.
Q. Is this the way -- the fashion in which you filled out this
report, is that the way they taught you to do it at the academy?
A. I was in training at the time and I was being taught during the
course of my training, sir.
Q. Did they tell you that you could just make assumptions about
whether these parts of the car are actually there?
A. No, sir.
Q. They told you that you had to actually visualize that or look at
it to confirm that, in fact, those parts were there when you filled
out the report, right?
A. That's correct.
Q. So you made a mistake when you did this, right?
A. That's correct, sir.
Q. You weren't as careful as you could have been at filling out the
report?
A. That's correct.
Q. Now, you testified to this jury that you didn't see anyone,
Officer Thompson, or anyone else, go into that car, correct?
A. Yes.
Q. And part of your job was to be as vigilant and careful as you
could in making sure that no one approached the car who wasn't
permitted to do so, correct?
A. Correct.
Q. And you didn't have your eye on that car the whole time, did you?

A. No.
Q. You don't know if somebody got in that car at some point when you
weren't watching, correct?
A. Correct.
Q. And is it fair to say that you were as careful watching that
vehicle as you were in filling out that report?
A. That's correct.
Q. Thanks. REDIRECT EXAMINATION BY MR. MEDVENE:
Q. Approximately how much of your -- strike that. Can you tell the
ladies and gentlemen of the jury whether the car was generally in
your sight during your time at Rockingham?
A. Yes, it was.
MR. LEONARD: Objection, asked and answered, Your Honor.
(The Court reviewed real time screen.)
THE COURT: Overruled.
Q. (BY MR. MEDVENE) Was the car generally in your sight when you
were at Rockingham?
A. Yes.
Q. If someone -- while that car -- generally -- Strike that. You've
told us the car was generally in your sight. Did you see anyone, any
officer, any person, open up some car door and pour blood in the
car while you were there?
A. No.
MR. LEONARD: Objection, asked and answered, and argumentative.
THE COURT: Sustained. (BY MR. MEDVENE) Did you ever talk to anyone,
any officer, about being part of some conspiracy to cover up the
fact that some officer, while you were there, would open up the car
door, pour blood in it, and you weren't supposed to say anything
about it?
A. No.
MR. LEONARD: Same objection, Your Honor.
THE COURT: Sustained.
MR. MEDVENE: I have nothing further.
MR. LEONARD: Move to strike.
THE COURT: Stricken. You going to ask some more questions?
(Mr. Leonard indicates index finger.)
THE COURT: Go ahead. RECROSS-EXAMINATION BY MR. LEONARD:
Q. (BY MR. LEONARD) You saw Detective Fuhrman when you arrived
there?
A. Yes.
Q. You don't know if he ever entered the car, do you?
A. No, I don't.
Q. Thank you. REDIRECT EXAMINATION BY MR. MEDVENE:
Q. All the times you were watching the car, did you ever see
Detective Fuhrman enter the car?
A. No.
Q. Any officer enter the car?
A. No.
Q. Thank you.
THE COURT: Okay. You may step down. You're excused.
THE WITNESS: Thank you, sir.
MR. LAMBERT: Plaintiffs call Dr. Terry Lee, Your Honor. TERRY LEE,
was called as a witness on behalf of the Plaintiffs, 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 be seated.
THE BAILIFF: Please be seated.
THE CLERK: Sir, would you please state and spell your name for the
record.
THE WITNESS: My name is Terry Lee, T-e-r-r-y L-e-e.
MR. LAMBERT: Thank you, Your Honor. DIRECT EXAMINATION BY MR.
LAMBERT:
Q. Good morning, Dr. Lee. You are a Ph.D., sir?
A. Yes.
Q. When did you obtain your Ph.D.?
A. I obtained my Ph.D. degree in 1977 from the University of Oregon.

Q. And in what field did you obtain that degree?
A. Chemistry.
Q. And since obtaining your Ph.D., what has been your occupation,
sir?
A. I have been a research scientist.
Q. Where were you first employed after obtaining the Ph.D.?
A. I first took a post doctoral position at Oregon Graduate Center
for a period of three years, after which I took a position at Cetus
Corporation which is a technology company in the Bay area. And
then finally, I ended up at Beckman Research Institute at the City
of Hope.
Q. Dr. Frederic Rieders told the jury when he was here that he's
testified as an expert witness in excess of 100 times.
MR. BAKER: Objection, irrelevant what he told this jury.
MR. LAMBERT: I haven't asked the question.
MR. BAKER: The preamble is argumentative.
(The Court reviewed real time screen.)
THE COURT: Sustained.
Q. (BY MR. LAMBERT) How many times, Dr. Lee, have you testified as
an expert witness?
A. This is my first time.
Q. So you are not a professional expert witness?
A. No.
Q. If you are not a professional witness, sir, would you tell the
jury what you are, sir?
A. I'm a research scientist. I do research and analysis of molecules
by liquid chromatography and mass spectrometry.
Q. You indicated you're now employed by the Beckman Research Center
of the City of Hope?
A. Yes.
Q. Would you tell the jury what the City of Hope is?
A. The City of Hope is -- it's two things: It's a national cancer
treatment center, it's also a research institute.
Q. And you're involved in the research side of that institute?
A. That's correct.
Q. How long have you been affiliated with Beckman Research Center
with the City of Hope?
A. 14 years.
Q. Can you tell the jury what your position is at the City of Hope?
A. My official title is research scientist. I do studies related to
the analysis of biomolecules by mass spectrometry.
Q. You had headed the mass spectrometry section of the Beckman
Research Center?
A. Yes. Immunology has a mass spectrometry section; I'm the head of
that section.
Q. Are you familiar with the profession known as liquid
chromatography?
A. Yes, I am.
Q. One of the processes that is at issue in this case is a cell
called HPLC test. Are you familiar with that test?
A. Yes.
Q. How long have you been involved in doing HPLC tests?
A. Since my graduate work, so it would be in excess of 20 years.
Q. How many times have you yourself run tests using the HPLC method?

A. Hundreds of times.
Q. One of the other tests at issue in this case involves the use of
liquid chromatography combined with tandem mass spectrometry using
an electrospray interface, what Dr. Rieders referred to as LCESMSMS;
are you familiar with that technology?
A. Yes, I am.
Q. How many times have you, yourself, run tests using such
technology?
A. Hundreds of times.
MR. LAMBERT: I'd like to mark as the next exhibit in order which is
--
MR. FOSTER: It's got a number.
MR. LAMBERT: No, the next exhibit in order, which is --
THE CLERK: 2403.
MR. LAMBERT: 2403.
(The instrument herein referred to as curriculum vitae of Dr. Terry
Lee was marked for identification as Plaintiffs' Exhibit No. 2403.)

Q. (BY MR. LAMBERT) This is a copy of your resume, Dr. Lee?
A. Yes, it is.
Q. Is that current?
A. Yes.
Q. According to your resume, you've written 129 articles that are
listed on the resume. Do any of those articles deal with mass
spectrometry of the type that's at issue in this case?
A. Yes. Nearly all of the articles in recent years have been related
to that particular topic.
Q. And are any of those peer review articles?
A. Yes. Nearly all of them.
Q. Now, have you reviewed the various tests performed by FBI Agent
Martz on certain evidence samples from this case?
A. Yes, I have.
Q. Can you tell the jury precisely what you have reviewed in
preparation for coming here?
A. I reviewed the analyses that were submitted to the -- to the
I.G.'s -- the Court, related to direct analyses of the samples.
There was also a set of analyses that were termed validation studies
which I believe were not done by Agent Martz but by other people at
the FBI. I reviewed Martz's testimony that he gave in the criminal
trial. I reviewed Dr. Rieders' testimony that he gave at the
criminal trial. I reviewed Dr. Rieders' testimony that he gave in
this trial.
Q. Have you been asked to determine from the test results of Agent
Martz whether or not the evidence samples tested by Agent Martz
could have come from test tubes treated with the chemical EDTA?
A. Yes.
Q. Have you formed an opinion in that regard?
A. Yes, I have.
Q. What is that opinion?
A. My opinion is that it could not have come from those test tubes.
Q. Now, one of the tests that Agent Martz performed is a test that
he called a negative ion test. What kind of a test is that, sir?
A. That refers to negative ion mass spectrometry. In mass
spectrometry, you have the option of looking at either positive ions
or negative ions. In that particular analysis, Agent Martz found no
evidence that there was any contamination in the blood samples by
EDT
A.
Q. When Agent Martz performed the negative ion test, was he able to
see any EDTA at all in the evidence samples?
A. No.
Q. Have you yourself ever performed a negative ion test?
A. Yes.
Q. Have you reviewed the results of other persons who have performed
them?
A. Yes, I have.
Q. Are you familiar with those tests?
A. Very familiar.
Q. Now, another test that Agent Martz performed is what we've talked
about earlier, this so-called HPLC test, and would you describe
briefly what an HPLC test is?
A. HPLC is -- is short for high pressure or high performance liquid
chromatography. It separates mixtures, and the analysis relies upon
being able to separate what you want to look for from everything
else and assign what is called a retention time to it. The
identification is based on the retention time of the compound coming
out of the instrument and the UV absorbance signal that the detector
monitors.
Q. You mentioned before you yourself have performed many of these
tests?
A. Yes, hundreds.
Q. And reviewed results of other people as well. Is that part of
your functions as the head of the mass spectrometry unit at the City
of Hope, to review other people's test results?
A. Yes.
Q. Now, what do Agent Martz's HPLC tests show as to the possible
presence of EDTA from a purple-top test tube in the evidence item?
A. There was no indication at all in those tests of any EDTA present
in those samples.
Q. So both the negative ion test and the HPLC test showed no
evidence of EDTA at all?
A. That's correct.
Q. Finally, Dr. Lee, Agent Martz also performed a so-called positive
ion mode test. What kind of test is that, sir?
A. That's a test exactly like the negative ion test except you're
looking at the positive ions instead of the negative ions.
Q. That's another form of the LCESMSMS testing technology?
A. That's correct.
Q. Have you yourself performed such tests?
A. Yes.
Q. How many times?
A. Hundreds of times.
Q. Have you ever reviewed the test results of other people?
A. Yes, I have.
Q. How often?
A. Hundreds of times.
Q. Now, incidentally, Dr. Lee, are you familiar with the equipment
that Agent Martz used to perform these tests?
A. Yes. We have the same equipment in our laboratory.
Q. You have the very same equipment you used in your lab?
A. It's the same mass spectrometry and the same electrospray source,
yes.
Q. Have you yourself used that equipment?
A. Yes.
Q. So you're familiar with the equipment?
A. I'm very familiar with it.
Q. When Agent Martz ran the LCESMSMS test in the positive ion mode
to determine whether he could detect the presence of EDTA in the
known sample, that is in a sample of blood from a purple-top test
tube, was he able to detect EDTA in that testing mode?
A. Yes, he got a very strong signal for those kinds of samples.
Q. So the EDTA was clearly present and visible under the testing
procedure?
A. Yes.
Q. Now, when Agent Martz ran the LCESMSMS test in the positive ion
mode on the evidence samples in this case, was he able to obtain
the same kind of showing as he did when he ran the known samples?
A. No.
Q. In those tests on the evidence samples, did Agent Martz obtain
signals indicating the presence of blood from an EDTA-treated tube
in the evidence samples?
A. No.
MR. LAMBERT: Let's put up Exhibit 2294.
(Exhibit 2294 is displayed.)
MR. LAMBERT: This isn't quite focused.
MR. FOSTER: It's too far away.
MR. LAMBERT: Yeah. This is a little bit out of focus up here. Little
more. Little more. Little more. Well, trouble is, we want to be able
to see the whole thing.
MR. FOSTER: That's the problem.
MR. LAMBERT: Put the whole thing up. We'll continue. I want to see
the whole chart.
Q. (BY MR. LAMBERT) Can you explain to the jury what this exhibit
depicts?
A. This is a direct comparison of the -- of one of the analyses for
the blood which came from a purple-top tube comparing that with
analyses of the evidence sample blood.
Q. This signal here, this mountain-like signal, what is that
showing us?
A. That's the signal that he got from the EDTA blood.
Q. From -- this is the blood from the purple-top test tube?
A. That's the purple-top test tube, yes.
Q. This small signal down here, what does that signal --
A. That's the signal that he obtained from the blood that came from
the evidence sample.
Q. Okay. Now, this -- this showing that he got from the evidence
sample, the small little mole hill of a showing, in your opinion,
could that showing be reflecting blood from a purple-top test tube?
A. No.
Q. And why not, sir?
A. The intensity difference is too great. Agent Martz, because he
didn't have an internal standard, he designed his experiment such
that if there was any errors in the quantitation, that he would err
in the right way; in other words, he would always attempt to use
more blood from the evidence sample than he would from his positive
control. In this case, there's 100 times or more greater intensity
from blood obtained from a purple-top tube than he would get from
his evidence sample. So that result is inconsistent with the blood
from the evidence sample having come from a purple-top tube.
Q. And the procedure that Agent Martz used, is that a standard
operating procedure for somebody using these mass spectrometry
machines?
A. Yes, it's a standard operating procedure when you don't have an
internal standard that you can do exact quantitation with.
Q. And when Agent Martz did these tests, was there an internal
standard commercially available to do these tests?
A. There was not.
MR. LAMBERT: Let's put up the next one. This will be a new one.
THE CLERK: 2404.
(The instrument herein described as Chart was marked for
identification as Plaintiffs' Exhibit No. 2404.)
Q. (BY MR. LAMBERT) The one we just looked at was for K206 or Q206
this is for Q204. Is this the same type of chart that you just
showed us?
A. Yes.
Q. So for both of the two evidence samples, socks and back gate,
tested by Agent Martz, he got only a trace signal from the evidence
sample and some mountainous signal from the known sample?
A. That's correct.
Q. And once again, Doctor, is it your opinion -- what is your
opinion as to whether these little trace signals could have come
from a purple-top test tube?
A. In my opinion, they could not have come from a purple-top test
tube.
Q. Now, did Agent Martz also perform these same tests on his own
blood?
A. He did.
Q. And what results did he obtain when he did that test?
A. He got essentially equivalent results with his own blood as far
as the trace level of EDTA that were detected in his analyses.
Q. So when Agent Martz took out his own blood and tested it in the
machine, he got this same little signal from his own blood?
A. That's correct.
Q. And from a scientific point of view, Dr. Lee, could you tell us
what the significance of that is?
A. The significance, from a scientific point of view, is that since
the signal and response are the same, that the likely source of that
signal was possibly the same.
Q. Well, Dr. Rieders testified that this wide variation between the
small signal shown in the evidence sample and the very large signal
shown in the known sample could be the result of some error by Agent
Martz in measuring the amount of the evidence sample. Do you believe
Dr. Rieders could be correct in that regard?
A. No, I don't. I think that is extremely unlikely. Blood is a
colored substance, so if there was a very large error, in this case
it would have to be larger than a -- greater than a ten-fold error,
then the solution you were sampling from would have been colored
differently. That's a difference that you would not be able to
overlook.
Q. And did Agent Martz run these experiments more than one time?
A. He ran them several times.
Q. So if Dr. Rieders is right, would Agent Martz have to have made
the same error every time he ran them?
A. That's correct.
Q. And I think you mentioned that Agent Martz was intentionally
trying to use more of the evidence sample than the known sample. Is
that your understanding?
A. That's correct --
MR. BAKER: Objection, no foundation for that.
A. -- Yes.
THE COURT: Lay a foundation for that.
Q. (BY MR. LAMBERT) You read Dr. Roger Martz's testimony?
A. It's contained in Dr. Martz's testimony in the criminal trial.
THE COURT: Overruled.
Q. (BY MR. LAMBERT) So he was intentionally trying to use more
evidence sample than the known sample; is that your understanding?
A. That's my understand.
Q. That's what would be standard operating procedure for a mass
spectrometer doing these tests?
A. For doing these kinds of analyses, that's what you would do, yes.

Q. Dr. Rieders also tried to explain the difference between the
small signal from the evidence sample and the large signal from the
known sample by saying that it was possible that the EDTA in the
evidence sample had somehow degraded before these tests were run. Is
there any scientific literature that supports Dr. Rieders' opinion
that EDTA could degrade so significantly?
A. None that I'm aware of.
MR. BAKER: Objection.
Q. (BY MR. LAMBERT) Do you believe that Dr. Rieders is correct or
incorrect in that regard?
A. I believe he's incorrect.
Q. Why is that, sir?
A. EDTA is a very unstable compound; it's not likely to degrade
under normal circumstances. And these evidence samples were -- came
from different places and were treated differently; yet they all
show the same levels. And so it's difficult to imagine the
degradation that would be common to all the samples.
Q. And if Dr. Rieders was correct in his degradation theory, how
would that explain the results that Agent Martz got in his own
blood?
A. It wouldn't.
Q. As a scientist, Dr. Lee, what is the most likely explanation for
this very small trace that is shown in the evidence sample here in
this one test that Agent Martz did?
A. These results are consistent with a carryover from -- in the
instruments. In other words, if you first analyze on the instrument
samples which contain a large quantity of EDTA and then you
subsequently come in with the samples that don't have any, it's not
uncommon to pick up trace levels from various parts of the
instruments that have been contaminated with the EDTA and then
subsequently alluded off when you did the other analyses.
Q. And is that a common problem with the LCESMSMS instruments?
A. It's a common problem with those instruments, yes.
Q. Is it something that you yourself have experienced?
A. Many times.
Q. And is it something that other people that do mass spectrometry
have experienced as well?
A. Yes.
Q. And if people are very experienced in doing mass spectrometry, is
it something that they are aware of is a problem with the
instruments?
A. Yes.
Q. Despite, therefore, the small trace showings that we have on this
chart for the evidence sample, are you of the opinion, Doctor, that
there is no way that those evidence samples could have come from a
purple-top test tube?
MR. BAKER: Leading, suggestive.
THE COURT: You may answer.
A. That's my opinion, yes.
MR. LAMBERT: I have no further questions.
THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. BAKER:
Q. Good morning, sir.
A. Good morning.
Q. Now, Dr. Lee, as I understand it, you were hired to refute the
presence of EDTA in the blood samples that came from the socks and
the back gate that was tested by Agent Martz, correct?
A. I was hired to review the data and give an expert opinion about
it.
Q. And you were -- in terms of your review, you relied upon agent
Rodger Martz, right?
A. I reviewed his data; I did not talk to him personally.
Q. Well, you relied upon the data that he had generated; you relied
upon the testimony that he gave at the criminal trial; true?
A. That's what I used. That's the evidence that I looked at, yes.
Q. And you were told by Mr. Lambert here, not to contact Rodger
Martz, were you not?
A. I was told that I could not contact him.
Q. And you were told that you could not contact Rodger Martz because
the FBI didn't want to get involved in the civil case?
A. That was my understanding.
Q. Did you know there's an FBI agent in town waiting to testify in
this case?
A. No, I didn't.
Q. Do you know that we've had two FBI agents testify in this case?
A. No.
Q. Did you ever again ask to contact Rodger Martz to see what his
opinions were relative to whether or not a ghost effect or
cross-over could be the reason for the levels of EDTA in the samples
in the -- from the back gate and the socks?
A. No.
Q. You were aware when you did your -- arrived at your opinions,
that Rodger Martz was not requested to find quantities in EDTA,
correct?
A. He was requested to determine whether or not there was evidence
that the blood from the evidence samples came from a purple-top
tube.
Q. Next in order. Have you ever seen the letter of Mr. Harmon from
the D.
A.'s office to the -- to Rodger Martz?
A. I don't know. If it was included in the volumes of materials I
had, yes, I saw it.
Q. It would be important for you to know exactly what Rodger Martz
was attempting to do in arriving at your opinions and conclusions,
since you didn't do any test to determine EDTA in any sample,
correct?
A. Would you state that again? I'm not sure I followed it.
Q. Okay. Sure be happy to. You did absolutely no testing yourself,
correct?
A. That's correct.
Q. And you don't have -- never designed a test to determine the
presence or absence of EDTA; correct?
A. That's correct.
Q. And you knew from your reading of material, that Rodger Martz had
never designed a test to determine the presence or absence of EDTA
in any material; correct?
A. Prior to the work that he did, that's correct.
Q. Okay. And you're aware it took him a week to design the test;
correct?
A. That's correct.
Q. You're aware that when he designed this test, he did not design
it to determine quantities; true?
A. That's partially true. He did not design it to actively determine
quantities.
MR. LAMBERT: Objection. Object to the use of this exhibit, not being
relied upon by the witness in giving his opinion.
THE COURT: Sustained.
MR. BAKER: It's in evidence, Your Honor. It's cross-examination of
this witness.
MR. LAMBERT: It's not in evidence.
THE COURT: Show it to him.
MR. BAKER: Huh?
THE COURT: Show it to him.
MR. BAKER: All right.
MR. LAMBERT: It's not in evidence. I object to it going into
evidence.
THE COURT: He said in evidence, or -- it's not in evidence?
MR. LAMBERT: No.
MR. BAKER: Is it in evidence?
MR. P. BAKER: I don't think that document is in yet.
MR. LAMBERT: There's no foundation.
THE COURT: Okay. I'll sustain the objection.
Q. (BY MR. BAKER) Well, let me ask you this: You certainly became
aware, from reading the testimony of Rodger Martz in the criminal
trial, that he was to refute the possibility that the stain on the
socks would -- could have come from Nicole's reference sample,
sample number 59; correct?
A. It was his purpose to determine if that was a possibility, yes.
Q. And he was also to refute the possibility that item number 117
could have come from Mr. Simpson's reference sample; right?
A. He was asked to determine if that was a possibility, yes.
Q. And he was asked to make those determinations and not to quantify
at all. And, in fact, he didn't quantify; true?
A. He did not accurately quantify the level of EDTA in those
samples; that's correct.
Q. He didn't even attempt to quantify at all in designing his test,
did he, sir?
A. Well, that depends upon what you mean by "quantify." Any
occasion, in order to draw a conclusion, you have to have some idea
about the quantity involved; otherwise, you can't draw a conclusion
based upon whether or not it's even there.
Q. Let me read to you what you read of Mr. Martz's testimony in the
criminal trial at 38641, lines 1 through 5.
Q. By the way, is the method that you used, any of the methods that
you used, quantitative methods?
A. I did not specifically use these methods to quantitate the amount
of EDT
A. That's what his testimony was, was it not, sir?
A. That's correct.
Q. Okay. Now, you in coming and arriving at your opinions, are not
saying that wasn't EDTA; you're saying that the amount -- the
quantity is too little; and hence, you don't believe it came from a
purple-top test tube, correct?
A. That's correct.
Q. So you are using quantities, where Mr. Martz, in his tests,
determined -- or attempted not to quantify anything; correct?
A. The --
Q. Well, can you answer that?
A. It's a matter of semantics.
Q. Can you answer that question, sir?
A. Yes. Could you ask it again?
Q. You are attempting to use quantity to -- in arriving at your
opinion that -- that this EDTA that was found in the samples from
both the back gate and the socks, was not EDTA from a purple-top
test tube; correct?
A. Yes.
Q. All right. And you are fully aware that Rodger Martz does not use
quantity to make any determination relative to EDTA, nor was he
asked to; correct?
A. By the strict definition of quantitative analysis, he was not
doing that.
Q. Can you answer my question, sir? He was not using --
A. I can answer. I can tell you, as an expert, that I could draw no
conclusions whatsoever unless he had some measure of the amount of
material present.
Q. Now --
A. He has to know the limits of the sensitivity, the limits of his
detection, limits -- all these things he has to know, or his
analysis means absolutely nothing.
Q. And you're aware that he testified that the levels of EDTA or --
strike that -- what he found on the 206 and 207 was consistent with
EDTA on the back gate and the socks, correct?
A. No.
Q. Maybe we'll get that in a minute.
MR. BAKER: You want to put that up?
MR. P. BAKER: This is next in order.
THE CLERK: 2405.
MR. P. BAKER: Dr. Lee's notes.
(The instrument herein referred to as Dr. Terry Lee's notes was
marked for identification as Defendant's Exhibit No. 2405.)
Q. (BY MR. BAKER) Now, you said in your notes --
MR. BAKER: Go down to outcome No. 3.
MR. P. BAKER:
(Adjusts Elmo.)
MR. BAKER: Back it off, please.
Q. (BY MR. BAKER) "If detectable levels of EDTA are found in the
stains, but significantly lower than the levels from blood in the
tube, then interpretation becomes problematic." What you meant by
that, sir, it becomes a problem to determine the EDT
A. Isn't that true, sir?
MR. LAMBERT: Objection. Argumentative.
A. No.
Q. (BY MR. BAKER) Let's go down to the next one. You say, if not
planted -- can you read that for us -- convincing argument must be
found why EDTA is present at that level.
A. Yes. You want me to read it?
Q. Yes, because I have trouble reading your writing.
A. So do I.
Q. I can understand that.
A. "If not planted, convincing argument must be found for why the
EDTA is present at these levels.
Q. Now, read the next one.
A. I can't even finish that one.
Q. I'm sorry.
A. I think it's -- I don't know that word.
Q. You were attempting to find convincing argument as to why the
EDTA --
A. Oh, I think I can do it now. One would be direct contamination
from either the environment or contamination from the lab during the
sample analysis.
Q. So you were attempting to find convincing argument to explain
away the EDTA found by Rodger Martz, and you understood that to be
your -- your -- your goal; correct, sir?
A. No, that wasn't my goal. My goal was to understand why the trace
levels that were observed in that particular analysis were there.
Q. Well, now, so you came up with this ghosting or carry-over effect
from the equipment, correct? That's your theory of why these levels
of EDTA were found by Rodger Martz?
A. Another most reasonable explanation, yes.
Q. You have no information whatsoever about how Rodger Martz runs
his lab, correct?
A. Direct information, no.
Q. And from a the available data, you can't determine what the
matrix used to dissolve the sample. You can't determine the quantity
and you can't determine the volume equilibrium was done before the
next analysis, can you?
A. There was statements in the materials that I reviewed with --
with regard to the matrix, with -- with -- with regard to rough
estimations about the quantity. I have no information at all with
regard to the exact procedures with respect to the chromatography
and the sample injection procedures.
Q. You would agree it's sheer speculation --
MR. BAKER: You can take that down.
Q. (BY MR. BAKER) -- it's sheer speculation on your part as to
whether or not there was any ghosting or cross-over effect; true?
A. No. My opinion is based upon evidence.
Q. Well, your opinion --
A. The data that's present there tells me something.
MR. PETROCELLI: Need a break, Your Honor for the juror?
(Juror is coughing.)
THE COURT: Do you want to take a recess?
JUROR: I'm okay.
THE COURT: All right. You -- All right. Let's a take a ten-minute
recess.
(Recess.)
(Jurors resume their respective seats.) CROSS-EXAMINATION BY MR.
BAKER:
Q. You discussed in your deposition the way to design an
experiment in such a way there would be no carryover effect?
A. Yes, we discussed those things.
Q. And you had testified that you'd have to be very, very careful
about the blank, correct?
A. That's correct.
Q. You testified that the blank would have to be done exactly the
same way the samples were done, using exactly the same matrix,
exactly the same volume, and exactly the same procedure?
A. Yes.
Q. And if you do that, you would have greater confidence that what
you were seeing in your samples came from what was exactly in the
sample; is that correct?
A. That's correct.
Q. And you don't know whether or not Roger Martz designed the
experiments and was very, very careful about his blank, was done
exactly the same way as the samples were done, using exactly the
same matrix, exactly the same volume, and exactly the same
procedure, do you?
A. I know what his blanks are. I don't know about his procedures,
yes.
Q. And now, you would obviously love to talk to Roger Martz,
wouldn't you?
A. I think it would be a very interesting conversation.
Q. Yeah. And you testified that you'd love to, but Tom Lambert told
you couldn't?
MR. LAMBERT: Objection, argumentative, misstates its testimony.
THE COURT: Overruled.
A. He told me that Roger Martz was unavailable.
Q. Speaking of Roger Martz; page 17, lines 1 through 11.
(Mr. Baker read a portion of Terry Lee's deposition transcript.)
Q. Have you ever made an effort to contact him, to ask him whether
he agreed with your opinion?
A. I was told that he was not available for me to contact.
Q. Who told you?
A. Tom Lambert.
Q. Did he tell you why he was not available?
A. Well, I don't recall exactly what he said, but the impression was
that the FBI kind of wanted to stay out of the civil matter. I would
love to talk to him.
Q. (BY MR. BAKER) That's what you testified to?
MR. LAMBERT: Objection, improper impeachment, it's not at all
inconsistent with what he said.
THE COURT: I'll sustain that because you asked, and he answered the
same question before in the same way.
Q. (BY MR. BAKER) Now, you were talking a little bit during the
examination by Mr. Lambert about Roger Martz testing his own blood;
do you recall that?
A. Yes.
Q. And you're aware that Roger Martz threw away all the computer
data relative to the test on his own blood, correct?
A. That's my understanding. He threw away all the computer data as
to any of the test.
Q. No one could ever go back and see, but we know -- you are aware
that the tests that Roger Martz ran on his own blood is icorrect,
correct?
A. Incorrect in what sense?
Q. That's a poor question. I apologize. The levels that he found in
his blood is inconsistent with life, correct?
A. If you're saying that it would be impossible for him to have
found EDTA levels at those levels in his own blood, that is true,
but he didn't know that at the time.
Q. He was alive; he knew that, didn't he?
A. Yes. But he didn't know it was impossible for him to have EDTA
levels that high in his own blood; he did not know that.
Q. You talked to him about that?
A. No. There's no way I could have known. Nobody knew it at that
point.
Q. Now, it is common knowledge in the scientific industry that there
are no detectable levels of EDTA in a normal human being's blood,
correct?
A. In the past year there have been two labs that have designed
tests to prove that point, and they have determined that there's no
detectable levels of EDTA in anybody's blood.
Q. And so if, for example, Richard Fox were on the stand yesterday
and testified that there can be EDTA levels in human blood, that's
incorrect?
A. That's incorrect.
Q. And we know presently, of course, that EDTA is not in human blood
to the level that was found by Roger Martz in his experiments done
on the blood samples from both the back gate and the socks, true?
A. I'm sorry. That was a long question. I lost part of it. Could you
repeat that, please.
Q. I get these notes -- I have I got an I.
Q. that's about ground level, so I have to rephrase and think back
of what I was asking you. But -- But basically, in terms of EDTA,
the EDTA that Roger Martz found in his test from the samples of the
back gate and the socks would not be in a normal person's blood; you
would agree with that?
A. I would agree that he could not find -- he would not detect any
EDTA in a normal person's blood, that's true.
Q. If his test results were in fact accurate, if EDTA was in both
the samples from the back gate and the socks, they had to have been
planted, if your theory is incorrect; you would agree with that?
A. I would say there is another possibility -- there may be another
possibility, a possibility that I haven't thought of.
Q. Well, you had a lot of time, haven't you?
A. Yes.
Q. Okay. And your possibility, sir -- you have absolutely no facts
to substantiate that there was any cross-over effect or ghosting
effect on this machine, true?
A. That's not a statement of the facts. There's evidence in the data
that would support that conclusion.
Q. Your argument, as I understand it, is because of the results, you
believe that there is a ghosting or cross-over effect, correct, kind
of a bootstrap approach, isn't it?
MR. LAMBERT: Objection, argumentative.
Q. (BY MR. BAKER) Let me just ask this question.
MR. BAKER: I'll withdraw that.
Q. (BY MR. BAKER) Let me ask you this question: We've established
that you certainly don't know what Roger Martz's lab procedures are,
correct?
A. That is correct.
Q. You certainly do know that he was requested to determine that
there was no EDTA in either the sample from the back gate or the
socks, correct?
MR. LAMBERT: Objection, asked and answered.
A. That's not my understanding, no.
Q. (BY MR. BAKER) He was given the job to refute any EDTA in the
back gate or the sock samples, wasn't he?
MR. LAMBERT: Objection, argumentative, Your Honor, been asked and
answered as well.
THE COURT: You may answer if you know.
A. I don't think the word "refute" is correct. I think he was asked
to determine whether or not that was a possibility.
MR. LAMBERT: I still object to any use of this letter. There's no
foundation for it.
THE COURT: Sustained.
MR. BAKER: I'll lay a foundation. I'll tie it up if I have to get
Rockne Harmon to come in here, Your Honor. This was an exhibit in
the criminal trial.
MR. LAMBERT: Your Honor, Roger Martz was a witness in the criminal
trial. He's not a witness in this trial. There's no foundation.
MR. BAKER: Your Honor, in that regard, all of this testimony is
relative to what Roger Martz did. This witness didn't do any
experiments, didn't do anything except look at what Roger Martz
said, and if you give me a minute, I think I'll go over and find
that letter. Phil, look up Roger Martz's testimony and find that
letter because I think this gentleman has already read it.
Q. (BY MR. BAKER) If you read that testimony there's a lot of it. I
can understand, Dr. Lee, how you'd forget reviewing or reading that
in the testimony because there was a lot of testimony from Roger
Martz.
THE COURT: Okay. Find it.
MR. P. BAKER: Can I see it?
MR. BAKER: Yeah.
(Mr. Baker handed a document to Mr. P. Baker.)
MR. P. BAKER: It's Criminal Defense Exhibit 1264, on July 25, page
38649.
THE COURT: I don't think that's what you're supposed to be finding.
MR. P. BAKER: Okay.
Q. (BY MR. BAKER) Now, Mr. Martz -- let me show you 36648. Mr. Martz
was given a two-page letter, correct, that was Exhibit 1263, okay,
and he reviewed 1263, correct?
A. That's what it says there.
Q. All right.
THE COURT: Okay. That's foundation, go ahead.
MR. P. BAKER: Well, I'll mark this next in order.
THE CLERK: I don't think it is -- I think it's already been marked
1223.
(The instrument herein referred to as a two-page letter dated
2/16/95 was marked for identification as Defendants' Exhibit No.
1223.)
Q. (BY MR. BAKER) Would you read what the request was to Roger Martz
as an FBI agent, and what his goal was.
(Mr. Baker read from a letter, mission statement, from Rockne Harmon
to Roger Martz.) We would like you to test these items for the
presence/absence of EDTA in order to refute the possibility that the
stain on the sock could have come from Nicole's reference sample. 59
or 72 similarly, we'd like you to test Item 117 to refute the
possibility that it could have come from Simpson's reference sample.

Q. So his mission statement, that is the mission statement of Roger
Martz, was to refute that there was any EDTA in either the reference
-- in the sample from the back gate or the socks; you would agree
with that?
MR. LAMBERT: Argumentative, misstates the evidence as to what the
letter says.
THE COURT: The argument seems to be over the word "refute." I'll
sustain it. The letter speaks for itself. You can argue over that.
Q. (BY MR. BAKER) The letter says he was to refute the allegation
that there was any blood from Mr. Simpson's or Nicole Brown
Simpson's reference sample, does it not, sir?
A. I read it.
Q. Okay. Roger Martz was in the FBI lab for 19 years, wasn't he,
when he ran these tests?
A. I don't remember. I mean he could have been. I have no idea how
long he was in the lab.
Q. Page 386, 21, you don't dispute that he was in the lab --
A. No.
Q. -- for 19 years?
A. I have no knowledge of that.
Q. You don't dispute if he had the goal to refute there was any
EDTA, that he would run his lab as best he could in an
uncontaminated fashion to get the best results possible; you would
agree with that?
A. Yes.
Q. So your theory here is that it was contaminated, he didn't do the
test correctly, and the elements that you see are not because they
were actually EDTA from a purple top test tube, but they were EDTA
that was left somehow in the machine and occurred only on the
samples from the socks and the back gate, right?
A. That's incorrect.
MR. BAKER: Nothing further. REDIRECT EXAMINATION BY MR. LAMBERT:
Q. Dr. Lee, these notes that you were shown before by Mr. Baker, he
just had you read this one paragraph which -- would you read both
paragraphs to the jury and then explain what these notes are all
about.
(Mr. Lambert read from a letter, mission statement, from Rockne
Harmon to Roger Martz.)
A.
(Reading:) "If not planted, a convincing argument must be found for
why the EDTA is present at those levels. Direct contamination from
environment or contamination from the lab during the sample process
and it planted -- convincing arguments must be found to explain why
the levels are so low. Is to say why would --" where did the rest of
it go?
(Indicating to Elmo screen.)
Q. And what is your intent in setting forth those two possibilities
in your notes?
A. This was just organizing my thinking as to what the issues
were.
Q. And you read the testimony of Dr. Rieders in both the criminal
case and the civil case. Did Dr. Rieders do any testing of his own?
A. No.
Q. Was he relying upon the same test results that you were relying
upon for his --
A. Yes.
Q. -- Dr. Rieders' opinion? Do they take into account all of the
data in Roger Martz's set of data?
MR. BAKER: Well, I object. That calls for speculation and conclusion
on the part of this witness, and it's argumentative and outside the
scope.
(The Court reviewed real time screen.)
THE COURT: Overruled.
A. I'm sorry. I've forgotten the question.
Q. (BY MR. LAMBERT) Let me try again. Did Dr. Rieders opinions
account for all of the various test results that Martz got when he
did his test?
A. No.
Q. Do yours?
A. I believe so, yes.
Q. The test results that Roger Martz got when he found this little
trace, that little molehill that we saw in testing his own blood,
you testified during the examination by Mr. Baker that that couldn't
be actual EDTA in his own blood, true?
A. That's correct.
Q. And therefore, it has to be some artifact that's creating that
trace result, correct?
A. That's correct.
Q. And what is your opinion of the artifact that's creating that
trace result?
A. That artifact is most likely the result of carryover from
previous analyses in that instrument.
Q. What's most likely creating the trace, little trace level, we saw
in the evidence sample?
A. The same effect.
Q. And Dr. Rieders' opinions don't account at all for how that
little trace shows up in Roger Martz's own evidence, own blood
sample?
MR. BAKER: That's argumentative. There's no way to know that, Your
Honor.
(The Court reviewed real time screen.)
THE COURT: Overruled.
A. Could we repeat the question so I am sure I answer it the right
way.
Q. Do Dr. Rieders' opinion that he gave to this jury in this case
explain how those little trace levels could have shown up in Roger
Martz's own blood?
A. No.
MR. LAMBERT: No further questions, Your Honor. RECROSS-EXAMINATION
BY MR. BAKER:
Q. You want to be sure you answer the right way?
A. I wanted to be sure I answered the right question.
MR. BAKER: Nothing further.
THE COURT: You may step down.
MR. LAMBERT: Thank you. Dr. Brad Popovich, Your Honor. BRADLEY
POPOVICH, called as a witness on behalf of the Plaintiffs, 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: Please state and spell both your first and your last
names for the record.
THE WITNESS: Yes. My name is Brad Popovich, B-r-a-d-l-e-y
P-o-p-o-v-i-c-h.
MR. LAMBERT: Before I forget, could I move in 2403 and 2404 from my
examination of Dr. Lee.
THE COURT: Received.
MR. BAKER: 1224 and 2405.
THE CLERK: That exhibit number is 1223.
MR. LAMBERT: I object to the letter on the grounds there no
foundation.
THE COURT: Overruled. Received.
(The instrument previously marked as Plaintiffs' Exhibit 2403 for
identification was received in evidence.)
(The instrument previously marked as Plaintiffs' Exhibit 2404 for
identification was received in evidence.)
(The document previously marked Defendants' Exhibit 1223 for
identification, was received in evidence.)
(The document previously marked Defendants' Exhibit 2405 for
identification, was received in evidence.) DIRECT EXAMINATION BY MR.
LAMBERT:
Q. Dr. Popovich, what is your occupation, sir?
A. I'm a clinical geneticist, clinical molecular geneticist.
Q. Would you explain for the jury your formal educational
background?
A. Yes. I have a Bachelor of Science degree, and in biology, I have
a Master's of Science degree in genetic counseling, a Master's of
Science in biochemical genetics, and my Ph.D. is in molecular
genetics.
Q. And when did you obtain your Ph.D.?
A. That would be 1986.
Q. And would you describe what employment you've had since obtaining
your Ph.D.?
A. Since obtaining my Ph.D., I was first a post-doctoral fellow at
the University of Wisconsin in Madison where I did a fellowship in
the department of medical genetics there. I then went from there to
the University of North Carolina where I did a fellowship in the
department of pathology there.
Q. And where are you currently employed, sir?
A. I'm currently employed at the Oregon Health Sciences University
which is the medical school in Oregon. And I have two appointments
at the university; one is an academic appointment as an assistant
professor in the department of molecular and medical genetics, and
then a hospital-based appointment which is as the director of the
DNA diagnostic lab.
Q. Are you certified by any organizations involving DNA testing?
A. I am. I have a medical board certification as a clinical
molecular geneticist from the American Board of Medical Genetics,
which is the accrediting board of the American College of American
Genetics which is the accrediting board for all people with genetics
training that do anything to do with patient care or management.
Q. And how long did it take you to be certified by that board?
A. Well, after one has a doctoral degree, either an M.D. or Ph.D.
degree, one would then do post-doctoral residency, if you are an
M.D., and after that then one would do a fellowship, and that
fellowship is usually two to three years.
Q. And do you know approximately how many people in the country
are certified by the American Board of Medical Genetics?
A. Well, in clinical molecular genetics, it was about 120 until
recently, and I think approximately 80 more were added to that list,
so there's about 200 people.
Q. Of the whole country?
A. That would be in the whole country, and also including Canada.
Q. And are you yourself involved in proficiency testing of DNA labs?

A. I am. One of my responsibilities through the -- my professional
college American College of American Genetics is on what's called a
proficiency testing committee. And essentially, what this committee
does is we are the people, the small group of people, there are
approximately six of us in this group, and we're the ones to put
together the proficiency testing materials. In other words, write
the exam questions, decide what labs need, what types of specimens
labs need to test to demonstrate the fact that they are proficient.
Then we also score their performance and write critiques and so on
their performance.
Q. In addition to all this work that you do, are you also involved
in the forensic uses of DNA in criminal cases?
A. Yes, I am.
Q. How are you involved in that regard?
A. Well, in a couple different capacities. I have been involved --
well, first of all, in the state of Oregon we have a panel of DNA
experts that attorneys can turn to that have criminal cases that
involve DNA, and can turn to this group for expert advice on the
reliability of DNA data, the strength, weaknesses, as to that data,
and in particular cases, essentially serve in an educational role,
and I do a number of cases within the state in that capacity. In
addition, my lab does do some forensic DNA testing, but that type of
testing is very limited in scope, and by no means do I want to leave
you with the impression that we have a forensic DNA lab. I consider
it a medical diagnostic lab, but the state of Oregon, whatever,
whatever. A young individual -- these are statutory rape cases where
a victim is 12, 13 years old and is pregnant, and where the
pregnancy -- I can help the state determine who fathered that child,
and then the state would use that evidence to press charges against
that individual. My lab does those cases and these are criminal
cases.
Q. And you've actually testified in court in some DNA criminal
cases?
A. Yes, I have.
Q. Have you testified for just the prosecution or just the defense
or how does that work?
A. No, I've, I guess, been involved in, I think it's about 18
cases now, and it's been about an even split between number of cases
for the prosecution and number for the defense.
Q. So you've sometimes worked as a DNA expert on behalf of criminal
defendants?
A. I do.
Q. Do you know who Barry Sheck is?
A. I do.
Q. Is Mr. Sheck one of the DNA lawyers that represented Mr. Simpson
in the criminal case?
A. Yes, he was.
Q. And since that time, has he employed you to act as an expert in a
criminal case?
MR. P. BAKER: Objection, irrelevant.
THE COURT: Goes to his CV, I guess. Overruled.
A. I should answer?
Q. (BY MR. LAMBERT) Yes.
A. Yes. Subsequent to the criminal case -- the criminal proceedings
in the Simpson case, I was approached by Mr. Sheck and -- and did
work with him on a case.
Q. And what did he ask you to do in that case?
MR. P. BAKER: Irrelevant.
THE COURT: Sustained.
Q. (BY MR. LAMBERT) Was that -- was that a case in which Mr. Sheck
was representing --
MR. P. BAKER: Same objection.
THE COURT: Overruled. You may establish what the nature of the work
was. Don't go into detail.
Q. (BY MR. LAMBERT) Okay. Was that a case in which Mr. Sheck asked
you to do some -- review some DNA evidence in the case?
A. Yes, he did. He asked me to -- it was a case --
MR. P. BAKER: Your Honor --
THE COURT: Sustained.
MR. P. BAKER: -- objection, hearsay.
Q. (BY MR. LAMBERT) That was a case that Mr. Sheck asked you to work
on since the criminal trial?
A. Yes, it was.
Q. Have you concluded your work on that case?
A. I have.
Q. Was there a successful conclusion to that work?
MR. P. BAKER: Objection, irrelevant.
THE COURT: Overruled.
A. There was a conclusion to that -- to this case.
Q. (BY MR. LAMBERT) What was it?
A. In this particular case, a defendant who had been convicted --
MR. P. BAKER: Same objection.
THE COURT: I'm not -- I said don't go into detail, Counsel. You can
-- you want to know if he was successful or not, you have him answer
that. You don't need the details.
Q. (BY MR. LAMBERT) Was it a successful conclusion?
A. It was a successful conclusion.
Q. Now, Dr. Gerdes, the defense expert, testified that he did not
even use the DQ Alpha or D1S80 test at issue in this case.
THE COURT: Excuse me. Is there some question on that issue?
MR. P. BAKER: It's argumentative, there's no foundation.
THE COURT: If it's argumentative, it's overruled. If you're saying
that didn't occur or there's no foundation for that, then we'll hear
you at bench.
MR. P. BAKER: Okay.
(The following proceedings were held at the bench with the
reporter.)
MR. P. BAKER: Your Honor, I just -- I'm objecting on foundational
grounds.
THE COURT: Trying to see what the question is.
MR. P. BAKER: I think I have it -- I just lost it.
THE COURT: What is your question?
MR. LAMBERT: My question is has he done DQ Alpha and D1S80 tests?
MR. P. BAKER: You were asking about Dr. Gerdes.
THE COURT: That -- this is what you asked. This is not Dr. Gerdes.
MR. LAMBERT: He read Dr. Gerdes's testimony. That's what Dr. Gerdes
said.
MR. P. BAKER: I thought you asked whether Dr. Gerdes did it.
MR. LAMBERT: That's what Dr. Gerdes said, he doesn't do it.
MR. P. BAKER: I object on foundation, argumentative. He should be
eliciting his testimony, his opinions.
THE COURT: What's the relevance of whether Dr. Gerdes does it?
MR. LAMBERT: The issue of DQ Alpha D1S80. Dr. Gerdes doesn't do it.
He does. This is rebuttal. His opinion has more weight than Gerdes'
'cause he does the test and Gerdes doesn't.
MR. P. BAKER: He elicited his testimony from Gerdes.
MR. LAMBERT: This is foundational to make the comparison. This
jury should be able to hear it.
THE COURT: That kind of question is argumentative. You want to ask
this witness if he does DQ Alpha tests and what the relevance is and
how it's important or not important, go ahead.
MR. LAMBERT: I will.
THE COURT: You can argue it to the jury With regards to the fact
that Dr. Gerdes doesn't do it, that's his objection, I'll sustain
it.
MR. LAMBERT: It's argumentative, not foundation.
(The following proceedings were held in open court in the presence
of the jury.)
Q. (BY MR. LAMBERT) Dr. Popovich, one of the tests at issue in this
case is the DQ Alpha test. Is that a test you do in your own lab?
A. Yes.
Q. Is it used often?
A. Fairly frequently.
Q. How many times have you yourself had experience with the DQ Alpha
test in your own lab?
A. Hundreds.
Q. And the D1S80 test is another test that's at issue in this case.
Do you do that in your own lab?
A. Yes, we do.
Q. How often have you yourself had experience with the D1S80 test?
A. Fairly frequently.
Q. A final test at issue in this case is the RFLP test. Do you
yourself have experience with the RFLP test?
A. Yes.
Q. How often have you done those kinds of tests?
A. We do those literally every day.
Q. Now, Dr. Gerdes compared the issues faced by a DNA lab doing
forensic testing to one doing medical testing. Are you familiar with
his testimony in that regard?
MR. P. BAKER: Same objection, argumentative.
THE COURT: Overruled.
Q. (BY MR. LAMBERT) Do you agree with Dr. Gerdes's testimony on that
subject?
A. I disagree.
Q. And why is that, sir?
A. Well, I disagree because I think he is telling one side of a
complex story and I think that the issues that we have to deal with
in a medical diagnostic lab are absolutely synonymous with what a
forensic lab has to deal with and, sure, we deal with pristine
samples where you know which is -- Dr. Gerdes has pointed out very
few of the problems that one is encountered with in forensic
testing. But we also deal with trace evidence, trace samples where
there is trace amounts of DNA, all the time. And where the issues
that arise are absolutely no different than what one is encountered
with in a forensic setting.
Q. So in your opinion, is DNA equally suitable to use in the
forensic field as it is in the medical field?
A. If one has an adequate DNA sample, it's equally suitable for
either application.
Q. Now, what material have you reviewed in connection with this
case, Doctor?
A. Well, I've reviewed a lot of materials. I've reviewed -- I've
personally visited each of the labs on more than one occasion. I've
talked to the analysts that were responsible for performing the
actual testing. I've reviewed their bench notes. I reviewed all the
original photographs, all the original -- all the original
documentation for each -- each and every piece of evidence in the
case. In most cases I've reviewed the trial transcripts from both
the criminal and the civil case of what was said. I've looked at the
conclusions the people had reached on the basis of the results that
they had obtained. I've looked at the physical layout of the lab.
I've looked at personnel qualifications. I mean, I was really
brought in to look at everything that happened in the case and give
a -- a non-biased opinion as to if that was credible evidence.
Q. And was one of the things that you were looking for when you did
this review, in order to determine whether there was any
contamination that affected any of the evidence samples?
A. Yes, that was definitely -- any time one is looking at DNA
evidence, one has to take into account the possibility of
contamination.
Q. Now, is contamination something that you worry about in your own
lab?
A. Any time one performs DNA testing, one has to worry about
contamination. Yes, we do.
Q. And is contamination something that DNA scientists are all aware
of and take steps to prevent?
A. Absolutely.
Q. Is the risk of contamination the same with the PCR-base test as
it is with the RFLP-base test?
A. The risk of contamination in either is real, but for PCR-base
testing, it is a much increased test, and one has to be extremely
careful.
Q. Have you reviewed Colin Yamauchi's testimony concerning his
sampling of evidence items on June 14 and June 15, 1994?
A. Yes, I have reviewed his testimony and I've personally questioned
Colin in great detail about -- about what he had done on both of
those days.
MR. LAMBERT: We're going to put up on the television screen -- what
number is this?
MR. P. BAKER: 2265.
MR. LAMBERT: 2265. It's a little bit hard to read. If you'd like
your own copy, it might be easier to read.
Q. (BY MR. LAMBERT) This is a document which has previously been
used with Dr. Gerdes's testimony, lists the items of evidence tested
by Colin Yamauchi on 6/14 and 6/15. Are you familiar with those
items that he tested, sir?
A. I am.
Q. And you said you interviewed Colin about his work?
A. I have.
Q. And did you examine the LAPD lab and the related facilities?
A. I did. I visited the facilities, looked at the physical layout,
did everything that I did in all the other labs, and that included
going to Piper Tech, going to Parker Center, and so on.
Q. Do you have an opinion as to whether Colin Yamauchi's sampling of
the evidence on June 14 and June 15 caused any contamination of that
evidence?
A. Do I have an opinion on that?
Q. Yes.
A. Yes, I do.
Q. What is your opinion?
A. My opinion is that there is absolutely no evidence of any
contamination whatsoever.
Q. In that connection, could you explain to the jury what these
controls are that are listed in Colin Yamauchi's samples that he
tested that day?
A. Yes, I can. There are really three places where contamination can
be introduced. And that would be where the evidence is actually
gathered that's at the crime scene. Then it would be where the
evidence -- when the evidence comes back to the lab, it could be a
laboratory within the laboratory. And then it could ultimately be at
the last step, which is essentially where one is doing the procedure
that gives you the result and led to conclusions being able to be
reached on the basis of this. So the first one -- the 7 substrate
controls speak to that very first point, at the actual crime scene
-- at the actual crime scene. And what one is doing is looking at
samples that, in fact, are sitting next to the actual samples that
were tested. And if there is contamination that's taken place at the
crime scene, one is going to see some of that contamination in those
-- those controls. And in Colin's work, none of those controls
tested positively, so that says something to me, even not being a
forensic scientist and not being involved in crime-scene
investigation. It speaks to the molecular genetic side of the fact
that there was not enough DNA, if there was any, to spread around
there to cause any type of problems in any subsequent results. The
next place would be when one is actually working with the evidence
back in the lab, and in that regard, the one positive control is
actually a stained piece of fabric that Colin ran in parallel. What
that says is that when he was actually doing his -- his extractions
of the DNA from the -- from the samples that were tested, from the
-- from the samples listed above, that none of those, in fact, on
the basis of this one control, suggests that there was no
contamination that took place at that stage. The reagent blank cloth
speaks to that same thing -- I mean -- I'm sorry, the reagent blank
cloth was really what I was speaking to, and the positive control
essentially says that the extraction went as planned, that he got
the result that he should have obtained from that particular
control. The amplification blank speaks to that last stage, the
actual testing phase where one is actually doing what you've heard
of, the PCR, and one is actually looking at the methodologies that
generate this DNA result. And in that case, that amplification blank
was negative. It's exactly what it should be if one is not
introducing contamination in the reagent. The last one is the
amplification positive, which is a quality control that's internal
to this kit and really speaks to the kit functioning as -- as it was
designed to perform. So many controls, every controlling exactly the
type -- type of information that one would want to see if one was --
if, in fact, there was no contamination and if, in fact, the
conclusions that were reached on these -- on these particular items
of evidence were because of DNA that was picked up and not because
of some DNA that was introduced at a subsequent stage.
MR. LAMBERT: Why don't you push this up to the top then see -- this,
Steve, up to the bottom
(indicating to Elmo).
Q. (BY MR. LAMBERT) These two days he sampled 18 evidence items, 3
exemplars and 21 controls. Half of the things he sampled that day or
those two days were controls, and did you look at all of those
test results?
A. Yes, I did.
Q. And what did the controls show?
A. Well, the controls showed that any one of those three stages of
-- of either collection or examination of the evidence or actually
doing the process of the PCR, that there was no -- there was no
contamination whatsoever there that was detectable.
Q. Thank you.
MR. LAMBERT: Now let's show the next one, Steve. Which number is
this?
MR. FOSTER: 2264.
MR. LAMBERT: 2264.
Q. (BY MR. LAMBERT) This exhibit -- particular exhibit is just
talking about 6/14, this one day, and it lists the number of
swatches that were in these various evidence items and the number of
controls that were sampled by Mr. Yamauchi on that one day.
MR. LAMBERT: Let's get to the bottom, Steve.
Q. (BY MR. LAMBERT) So 32 evidence swatches and 7 controls that were
handled by Colin that one day; is that your understanding?
A. That's my understanding, yes.
Q. And these controls that were handled, were those controls all
negative for any contamination?
A. They did not demonstrate any contamination. That's correct.
Q. And in order for this evidence to have been contaminated by the
handling by Colin Yamauchi, would all 32 of those evidence swatches
have to have been uniformly contaminated?
A. I'm sorry, can you --
Q. In order for the evidence to be contaminated in this case, the
evidence handled on June 14, would all of those 32 swatches, each
one of them, had to have been contaminated?
A. That would be --
MR. P. BAKER: Vague.
THE COURT: Overruled.
A. That would be correct if the results were due to contamination.
Q. (BY MR. LAMBERT) In your opinion, were those results due to
contamination?
A. There's no evidence that there is contamination in those 32.
Q. Now, Dr. Gerdes implied in his testimony that Colin Yamauchi
sampled too many evidence items at once on these two days.
MR. P. BAKER: Objection, Your Honor, no foundation.
THE COURT: Excuse me?
MR. P. BAKER: Objection, no foundation, argumentative; implied.
MR. LAMBERT: Stated --
MR. P. BAKER: Where --
THE COURT: Overruled.
Q. (BY MR. LAMBERT) Dr. Gerdes stated -- said that Colin Yamauchi
examined too many evidence items on these two days. Do you agree
with that opinion?
A. I do not.
Q. And do you occasionally handle the same number of items at once
in your laboratory?
A. Yes. It would be -- not at all. I mean it's a significant number
that were handled on that day, but then again, Colin did indicate in
his testimony that he worked overtime in order to handle this number
of samples. And in my own lab, I mean it would be a very similar
scenario where, if one had this number of samples and needed to
process those, one could, yes.
Q. Dr. Gerdes stated in his testimony that Colin Yamauchi's handling
of the reference vial containing Mr. Simpson's blood might have
caused some contamination. How do you yourself handle reference
vials?
A. Well, when a reference tube of blood comes in, one would handle
it essentially very similar to what Colin described. One places
something over it. The concern is two-fold. One is your own person
being contaminated by the materials -- the blood materials that
are in there. And the second is the laboratory environment. So, in
fact, it's very synonymous in many ways to opening a bottle of wine.
I mean if you were to take a bottle of wine and pull the cork out a
good bit of the way, and it was a red bottle of wine, what you want
to do is prevent any of that wine from sliding down the side of the
bottle or getting on you, you would place a napkin over it and you
would pull the cork out the last bit of the way, and inevitably what
would end up happening is some of the blood from that -- from that
bottle or from the -- from the actual vial, or in the case of the
wine, from the cork would actually get onto that napkin, and one
would see that. And so -- and by holding that napkin, or in this
case chemwipes, which are just green kleenexes, over that, and
pulling out that cork, one would keep that blood on those chemwipes
and basically keep it from getting spread around, so it's exactly
what we would do in opening those.
Q. So is the method that Colin Yamauchi described that he used to
open the vial as part of the sampling process, a customary way of
handling?
A. Absolutely.
Q. Is it uncommon to get a little bit of blood on the Chemwipes when
that happens?
A. Not at all. The majority of the time, one would.
Q. And does that cause any problems?
A. In my view, it causes no problem.
Q. Now, Dr. Gerdes suggested that perhaps some contamination could
have taken place because of maybe Colin Yamauchi got some blood on a
pen. Do you remember him saying that in his testimony?
A. I do recall that.
Q. Is that, in your view, a possible explanation for all this
evidence sample in this case?
A. Not at all. It's not at all consistent with these -- these items
of evidence and the results that were obtained.
Q. Dr. Gerdes suggested that Colin Yamauchi may have reintroduced
contamination when he brought evidence samples back to Piper Tech
after he had done the PCR amplification. Do you remember that
portion of his testimony?
A. I do remember.
Q. Do you agree with that?
A. I think that's absolutely ridiculous.
Q. There's no basis for that testimony, in your view?
A. None whatsoever.
Q. Now, the test results that Colin Yamauchi obtained on June the
14th and June the 15th, were those test results consistent with test
results later performed by DOJ or Cellmark Diagnostics on the same
evidence items?
A. Yes, they were. All the results that were obtained on those items
of evidence were essentially concorded between all three labs. They
all obtained the same result.
Q. If any contamination had occurred, what does the fact that all
three labs got the same results tell us about that contamination?
A. Well, it says that the contamination had to be there before Colin
actually processed it.
Q. And is there any evidence at all that there was any contamination
before he began his process of testing it?
A. No, there's no.
MR. P. BAKER: Objection.
THE COURT: Overruled.
A.
(Continuing.) There's no evidence that those results are due to
contamination.
Q. There were -- in the case, how many different evidence items were
collected and tested? Do you have a rough number in mind?
A. The total number that were collected?
Q. Yes.
A. I don't actually know that number. I mean, I know that, for
instance, that in addition to what we've talked about at LAPD, that
Cellmark looked at a approximately 25 samples -- items of evidence
that were tested; and DOJ, something in the neighborhood of 100 to
110.
Q. In all of those evidence items, was there any evidence at all of
contamination?
A. None at all.
MR. LAMBERT: Let's start with the Bundy board.
(Board entitled Results of DNA Analysis, Bundy Crime Scene, is
Exhibit 291 displayed.)
MR. LAMBERT: Mr. Baker asked me to wait.
MR. P. BAKER: I'm back.
MR. LAMBERT: There he is.
Q. (BY MR. LAMBERT) Now, we've put up Exhibit Number 291, which is
the board showing the results of the DNA analysis at the Bundy crime
scene. Did you review all of those tests for all those evidence
items?
A. I did, from all three labs.
Q. And are the results among the three labs consistent?
A. The results are consistent.
Q. Incidentally, do you have any opinion as to the quality of the
testing work done by Gary Sims in the California Department of
Justice?
MR. P. BAKER: Objection. Speculation and foundation.
THE COURT: Overruled.
A. I do.
Q. (BY MR. LAMBERT) And what is that opinion?
A. I think that Gary Sims, Renee Montgomery, and DOJ, in general,
does excellent work.
Q. Do you have any opinion about the quality of the testing done in
this case by Robin Cotton, Cellmark Diagnostics?
A. I do.
Q. What is your opinion?
A. Again, I think Cellmark is a very reputable company, and the work
that was done in this case was excellent.
Q. Finally, do you have any opinion about the quality of work done
in this case by Colin Yamauchi, by SID?
A. Yes. I think the work that Colin did is reliable. I have -- see
no reason not to trust any of it; I think it's very good data.
Q. When you looked at all the evidence samples reflected on this
board from the crime scene at Bundy, did you see any evidence at all
of any contamination in any of these evidence samples?
A. I did not.
Q. Now, in regard to item number 52, Dr. Gerdes testified that when
he looked at the DQ Alpha strips for the Department of Justice, he
detected what he said could be contamination in those strips. Do you
remember that testimony?
A. I do.
Q. Do you agree with that opinion?
A. I do not.
Q. What did you see when you reviewed the DOJ DQ Alpha strip?
A. Well, the DOJ DQ Alpha strip, as I recall, there is a -- a -- a
very faint 1.3 that's there, also. And in that particular case,
there are a number of explanations for that; and -- and the most
likely explanation for that is something that would be called
cross-contamination. That's in a sample, where one has quite a bit
of DNA, and it -- in a way, it overwhelms the system a bit, and is
showing you something that's very closely related, but is not
necessarily there. And because of the amount of DNA that was in that
sample, I agree with the testimony that was given by, for instance,
Gary Sims in this case, that -- as to the explanation for that. It's
a very logical explanation; and it a would be my -- it would be the
explanation that I would offer as the most logical.
Q. So do you believe that Dr. Gerdes is wrong in regard to item 58?

A. I do. I think that Dr. Gerdes is looking very narrowly at one
side of the data in this particular specimen, and isn't looking at
the whole case -- at all the evidence related to that particular
specimen.
Q. Now, Cellmark obtained an RFLP result on that evidence item 52.
Did you see any evidence at all of contamination in that RFLP test
result?
A. I did not.
Q. In your opinion, could that RFLP result have been caused by
contamination?
A. I believe it could not be.
Q. And is that RFLP result a significant result, sir?
A. I think it's very significant.
Q. It's very significant in terms of identifying Mr. Simpson as the
person who left that blood at crime scene?
MR. P. BAKER: Objection. Argumentative.
THE COURT: Overruled.
A. Well, I think it's very significant in the sense that the profile
that was generated by each and every one of those five probes
matches that of Mr. Simpson.
Q. In your opinion, are the DNA test results for this evidence found
at the Bundy crime scene, accurate test results?
A. I believe it is, yes.
Q. Are they reliable?
A. I see no reason to not trust the reliability of this evidence.
Q. Excuse me. In your opinion, can this jury consider those test
results to be unaffected by any contamination?
MR. P. BAKER: Argumentative.
THE COURT: Overruled.
A. I do not find any reason to believe that any of this is due to
contamination.
MR. LAMBERT: Next board.
(Board displayed entitled Results of DNA Analysis, Bronco
Automobile.)
MR. LAMBERT: We now have up before you, Dr. Popovich, the results of
the DNA analysis of the Bronco automobile. Have you reviewed all of
the test results for the evidence collected from that Bronco?
A. I have.
Q. Did you see any evidence of contamination in any of those test
results?
A. No, I did not.
Q. In regard to the Department of Justice DQ Alpha result on item
31, there, Dr. Gerdes testified that Sims misread those results.
Did you review his testimony in that regard?
A. I did.
Q. Do you agree with Dr. Gerdes?
A. I do not agree with Dr. Gerdes.
Q. What is your opinion on those test results?
A. Well, I think that what Gary Sims did, is -- is look at exactly
what was there, and -- and, in fact, called it exactly like he saw
it. And we have supporting evidence of his call by D1S80 result, the
24, 25 in that regard done by Renee Montgomery. Not only do we have
concordant data by SID and the DOJ Lab for item 331, but we also
have data that substantiates that, which is D1S80 data that was done
by Renee Montgomery at DOJ.
Q. And Mr. Sims was later able to obtain an RFLP result in items
303, 304, and 305. Does that tend to validate his PCR results on
item 31?
A. I think it does, yes.
Q. Do you have any doubt at all whether Mr. Sims is correct in
calling item 31 to be an item that could contain the blood of both
Mr. Simpson and Mr. Goldman?
A. No; I think that his conclusion is an accurate one.
Q. In your opinion, are these DNA results, or the evidence found in
the Bronco automobile, accurate?
A. I believe they are accurate.
Q. Are they reliable?
A. I believe they're reliable.
Q. In your opinion, can the jury consider those results to be
unaffected by any contamination?
A. I believe they are unaffected by contamination.
MR. LAMBERT: Rockingham --
MR. P. BAKER: Your Honor, can I approach real quickly while Mr.
Foster is getting the boards?
(The following proceedings were held at the bench, with the
reporter.)
MR. P. BAKER: Your Honor, I'd like to put on my objection to any
further testimony by this witness. I'd like to put an objection on
the record to any further testimony by this witness. He's not
rebuttal; he's a summary witness who's been brought in as a clean --
to try to clean up other witnesses. It's improper rebuttal
testimony. I'd like to object to any further --
MR. BAKER: He's talking about the opinions of their own witnesses
and their own people as to whether it's reliable or unreliable.
That's a conclusion for the jury to make. This is improper, Your
Honor, and we object to it.
MR. LAMBERT: Dr. Gerdes claimed that the test results in this case
were affected by contamination. This witness is saying they're not.
They're all reliable. That's what the opinion is all about.
MR. BAKER: That isn't what he's asking him. He is asking him summary
questions. The jury is entitled to believe this evidence, whether or
not he's entitled to render his opinion pursuant to your ruling.
That -- whether or not he believes the evidence is contaminated, in
my opinion, is totally argumentative to -- asking these questions,
to kind of summarize his views for the jury.
THE COURT: It's proper rebuttal. It's argumentative. I'll sustain it
on the basis it's argumentative.
MR. LAMBERT: Which question?
THE COURT: When you're questioning in terms of should the jury --
MR. LAMBERT: I'll take that part out.
THE COURT: Okay.
MR. BAKER: One other question. When he's asking these questions,
he -- it seems to me, it's argumentative to say, do you think these
opinions given are reliable. Those are argumentative questions. I
mean, he's arguing whether or not those opinions are reliable, and
he ought not be able to do that.
MR. LAMBERT: That's not argumentative.
THE COURT: Overruled.
(The following proceedings were held in open court, in the presence
of the jury.)
THE COURT: How much longer are you going to be?
MR. LAMBERT: Ten minutes, fifteen, maybe. You want to take a break
now?
THE COURT: Yes. Ten minutes, ladies and gentlemen. Don't talk about
the case.
(Recess.)
(Jurors resume their respective seats.) DIRECT EXAMINATION
(continued) BY MR. LAMBERT:
Q. Dr. Popovich, we now have up the results of the DNA Rockingham
residence. Did you review all the tests done from the evidence
collected at the Rockingham residence?
A. I did from all three labs.
Q. Did you observe some evidence of contamination in those results?
A. No. I saw no trace of any contamination.
Q. And in your opinion, are these reliable test results?
A. I believe they are.
Q. Are they unaffected by contamination?
A. I believe they're unaffected by contamination.
Q. Are they accurate results?
A. I believe they are accurate.
Q. We now have up the results of the DNA analysis of the Rockingham
gloves. Did you review the test results on the Rockingham glove?
A. I did.
Q. Did you observe any evidence of contamination in those test
results?
A. Again, I saw no evidence of contamination.
Q. And in your opinion, are these test results reliable?
A. I believe they are.
Q. Are they accurate?
A. I believe they're accurate.
Q. Are they unaffected by contamination?
A. I believe they are unaffected by contamination.
Q. And these are RFLP results where we have 5 probe and 8 probe
matches, are those significant results, Doctor?
A. I think they are.
Q. Are they significant results in terms of identifying the source
of the blood on that glove?
A. I think they're very significant in identifying that.
MR. LAMBERT: And finally, the socks board, please.
Q. Finally, Dr. Popovich, we have the results of the DNA analysis on
the Rockingham socks. Did you review these test results?
A. I have.
Q. And did you observe any evidence of contamination on these test
results?
A. No, I did not.
Q. In your opinion, are those test results reliable?
A. I believe they are.
Q. Are they accurate?
A. I believe they are.
Q. Are they unaffected by contamination?
A. I believe they are unaffected by contamination.
Q. At 11 probe, 5 probe, 9 probe, RFLP matches, are those
significant matches?
A. Highly significant.
MR. LAMBERT: You can take that down, Steve.
(Indicating to board.)
Q. Now, Dr. Gerdes talked a little bit in his testimony about
degradation of evidence samples, degradation of evidence samples
change the DNA from one person to another?
A. Meaning, can it change the type -- the results that one gets.
Q. Yes.
A. DNA degradation -- when it degrades, DNA cannot change the actual
type that one gets with any of these tests. It can make things go
away, it can make the type, in other words, disappear, and sometimes
it can make one of the two genes that that person has disappear
first. But it cannot change the type of that. So in other words,
they are not going to go from a type 1 to a type 2 or something, in
some DNA tests, if the type 1 -- if the one gene is degraded, it
is just not going to show up, it's not going to be a result.
Q. So degradation could not result in somebody getting false DNA
test results?
A. Degradation cannot result in one being mistyped. It can result in
no result. But it cannot result in mistyping.
Q. Now, Dr. Popovich, you've reviewed a lot of evidence samples in
this case?
A. I have.
Q. Have you ever had a case where you reviewed so many evidence
samples?
A. I have not.
Q. Taking everything into account from your review of all of those
evidence samples, are the test results, the DNA test results in this
case, by LAPD, Cellmark, and DOJ, are they accurate?
MR. P. BAKER: Objection, argumentative, no foundation.
THE COURT: Overruled.
A. I believe these results are accurate.
Q. Are they reliable?
A. I believe they're very reliable.
Q. Are they unaffected by contamination?
A. I do believe they're unaffected by contamination, yes.
MR. LAMBERT: No further questions.
THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. P. BAKER:
Q. Dr. Popovich, you're the cleanup hitter, aren't you?
MR. LAMBERT: Objection, argumentative.
THE COURT: I'll give him that.
A. I'm not sure what you call me.
Q. (BY MR. P. BAKER) You told this jury you visited the lab
basically to give an unbiased opinion to the standards, right?
A. That is what I did.
Q. You billed the prosecution $30,000 for that, didn't you?
A. I did.
Q. How much have you billed the plaintiffs' attorneys in this case?
A. Probably in the neighborhood of about 5,000.
Q. Okay. Pretty unbiased?
A. Yes. I put 300 hours into that previous case.
Q. Colin Yamauchi is a friend of yours, is he not?
A. I would say he's absolutely not a friend. I mean I knew him in no
way, shape or form before I became involved in this case.
Q. When did you become involved in the case?
A. I'd have to look at my CV to look at the exact date. I believe
it was September of '94.
Q. And you weren't called by the prosecution as a witness, right?
MR. LAMBERT: Objection irrelevant.
THE COURT: Overruled.
Q. You can answer.
A. I was on their list to be a witness but I was never called.
Q. Okay. And how many times have you met with -- you call him Colin,
since September of 1994?
A. No. I met with Colin on two occasions.
Q. How many times have you talked to him?
A. Oh, probably two more than that.
Q. Four times?
A. Yes.
Q. And your opinion is that everything was hunky dory in terms of
the examination of the swatches?
A. I'm not sure what hunky dory means.
Q. Never heard that before?
A. I've heard of it.
Q. You have no opinion as to that question?
A. Well, if you define hunky dory, I'll answer it.
Q. Why don't you use your definition.
A. I wouldn't use the term "hunky dory."
(Laughter.)
Q. All right. How many nanograms of DNA are in a drop of blood?
A. Depends how big the drop is.
Q. It's generally held in the scientific community that
approximately a thousand nanograms are found in a drop of blood,
right?
A. Well, that would be approximate.
Q. Okay. Do you have a dark pen up there.
(Witness handed marker to Mr. P. Baker.)
Q. How many nanograms of undegraded DNA was found in Item 47 on the
Bundy walk?
A. I'd have to look at my notes on that.
Q. Is it about 33.6?
A. I would say that's probably in the right neighborhood. Then
again, I wouldn't testify to any of the numbers if I don't look.
It's a specific science.
Q. Go ahead.
A. I do not have that with me.
Q. Okay.
A. I'd have to look.
Q. Do you have any notes on the DNA nanogram Bundy walkway?
A. No. I know that Gary Sims --
Q. A question is not pending, sir. How many nanograms were found in
Item 48, about five, more or less?
A. I don't have those numbers memorized.
Q. Okay. 49; about 1.8 nanograms?
MR. LAMBERT: Seems to me that the lawyer is testifying here other
than the witness.
MR. P. BAKER: Your Honor, he's testifying as to the DNA in this
case. If he doesn't know the nanograms as to the Bundy walkway, we
got problems.
THE COURT: You may.
(Laughter.)
MR. P. BAKER: I'd agree with that.
THE COURT: Why don't you present figures to him and let him look at
it if he doesn't remember.
Q. (BY MR. P. BAKER) I just have my notes. I don't have the exact
drawings, you understand, of the five Bundy swatches. The maximum
amount of nanograms is 33.6, right?
A. That's including 52?
Q. Yes. 52 had 31.6, right?
A. Well, it depends on which lab you're referring to.
Q. Un degraded DNA testified the LAPD?
A. Okay. This is strictly by LAPD.
Q. Correct?
A. Again, I'd have to look at the bench notes for that. I mean I'll
-- basically, if you put a number up there and you want me to give
you an interpretation of what it means, I'll be happy to do that.
Q. Let's assume for a hypothetical Item 52 had 31.6 nanograms, Item
58 had 12.1, Item 49 had 1.8, Item 48 only had 5?
A. Okay.
Q. That's a lot less than the thousand normally found in a drop of
blood, true or untrue, sir?
A. Well, if a drop of blood has a thousand, 33.6 is less than a
thousand.
Q. A lot less?
A. It's significantly less.
Q. Okay. Now, what about Item 117. How many nanograms did that have?

A. Again, I don't have any of this committed to memory.
Q. Item 117 had 150 nanograms, didn't it? Do you have any idea about
that, sir?
A. Well, I know it had more than the others.
Q. And Item 117 is a stain collected on the back gate?
A. That's correct.
Q. That was checked on July 3?
A. It was collected after the others, that's correct.
Q. Collected about 19 days after the five other swatches, right?
A. Sounds about right.
Q. About five times as strong in terms of nanograms, right?
A. Approximately, yes.
Q. And you know that the Bundy walkway was washed down after the
crimes, right?
A. I did not know that.
Q. Never heard that.
A. I mean I -- again, that part of the transcript -- I mean I may
have read that at one point. Again I -- again, that's not something
that was fundamental to my part of this investigation.
Q. Okay. Now, you can have contamination in terms of DNA from simply
changing gloves, right, you can transfer DNA by changing gloves,
transfer from one to the other, right?
A. Can you be a bit more explicit.
Q. Sure. If you have DNA on your right hand and you touch the left
hand with it, you can transfer the DNA?
A. Yes.
Q. You can transfer it when you pick up some tweezers, right?
A. It's possible.
MR. LEONARD: Can I stop holding this?
(Indicating to chart.)
MR. P. BAKER: You can put it down.
MR. LEONARD: Thanks.
Q. (BY MR. P. BAKER) You can transfer DNA when you touch your
glasses, right?
A. It's possible.
Q. Now, did the plaintiffs show you the demonstration that Andrea
Mazzola did of her best collection techniques?
A. I have never seen any collection techniques of Andrea Mazzola.
Q. They never showed you -- they never showed you the videotape that
Andrea Mazzola presented at the prosecution of -- about what was her
best collection techniques?
A. I am not -- I have never seen that, no.
Q. Okay. You never heard that in that videotape she touches the
pavement, moves the swatches, transfers the tweezers, touches her
glasses; you never heard anything like that?
A. No. I mean --
Q. Answer my question yes or no.
A. I mean I have heard bits and pieces of this, yes -- I mean from
the transcript, reading the transcript of the civil trial.
Q. And you have no independent knowledge, as you sit here today, how
Andrea Mazzola collected the swatches at the crime scene, correct?
A. Personal knowledge?
Q. Yeah.
A. Well, I read the transcript.
Q. Personal knowledge, independent knowledge; you have none, right?
A. Other than from the official transcript I have none.
Q. Okay. Now, you can have contamination by bottles of reagent,
right?
A. You can, right.
Q. That's another liquid that's used when you're working with DNA;
the liquid you use in the process, correct?
A. You may, yes.
Q. And in your lab you use reagents, right?
A. We do.
Q. How often do you change those reagents?
A. It all depends on the reagent.
Q. Okay. Do you leave some reagents there for more than six months?
A. Some reagents are years old, yes.
Q. Okay. Had you ever looked at the reagents of the LAPD crime lab?
A. I did.
Q. Did you see that a lot of the reagents used were old?
A. I'm not sure what old means.
Q. More than six months old?
A. Well, there were some reagents that were that old, but I saw no
reason to worry about those, no, I didn't.
Q. So you had no concerns about reagent contamination at the LAPD
crime lab; is that your testimony?
A. I see absolutely no evidence of reagent contamination at LAPD.
That is my testimony.
Q. And that's in terms of all the work you've done on this case;
that's your testimony?
A. In terms of the work on this case, I -- the work presented in
this case, I have seen no evidence of reagent contamination.
Q. I'm talking about the civil case and the criminal case. You've
never said to anyone that you were concerned about reagent
contamination at the LAPD crime lab?
A. Have I observed reagent contamination.
Q. At the LAPD crime lab.

Q. Now, contamination can happen pretty easily, right?
A. It can.
Q. DNA can transfer from surface to surface without anyone seeing
it, right?
A. I mean something has to make that transfer occur. But it can
occur -- you can't see DNA, so sure, it can occur without you seeing
it.
Q. And you're talking about Mr. Yamauchi's work with the reference
vial, and you basically told this jury you had no criticism of
Colin, right?
A. I have no criticism whatsoever of the way he removed the blood
from that vial, that's correct.
Q. He spilled the blood, didn't he?
A. There's no place that he says he spilled blood that I could find.

Q. You never heard that before?
A. I mean I've heard it said that he spilled blood. Colin never said
he spilled blood.
Q. Did you review his civil trial testimony?
A. I did.
Q. Now, Dr. Popovich, you wouldn't work at the same area with the
reference vial and evidence samples, right? You wouldn't?
A. Well, if one is working with a sample with high DNA amounts and
other samples with lower DNA amounts, one can work with those very
easily at the same time, yes.
Q. So you would do it?
A. Well, one has to be conscious, one has to -- one has to know what
they're doing to do that, but yes, one can do it, and we do that in
my own lab.
Q. I'm going to read page 54 of your deposition taken on August 15,
1996.
(Mr. P. Baker read a portion of the deposition transcript of Bradley
Popovich.)
Q. Is it good practice to process reference samples at the same
location within the same sitting as evidence samples?
A. Well, it all comes down -- I mean one has to be very precise
about this. I mean if you're asking me is it good practice for me to
have a reference tube of blood and right next to it have evidence
that I'm working with that is going to be in trace amounts,
potentially in trace amounts, the answer is no, that's not good
practice.
Q. (BY MR. P. BAKER) Remember testifying to that?
A. I sure do.
Q. You would work with the reference vial on the same table as
evidence samples, is that what you're telling this jury?
MR. LAMBERT: Misstates the evidence if we're talking about what
Colin Yamauchi did.
MR. P. BAKER: I'm asking a question.
MR. LAMBERT: It's irrelevant otherwise.
THE COURT: Overruled.
Q. (BY MR. P. BAKER) You may answer.
A. We work with samples with high concentration and low
concentration samples on the same table all the time.
Q. Well -- really?
A. Yes.
Q. Do you bleach down the area in between samples?
A. No, we do not.
Q. Do you use UV rays when you change your notes?
A. No.
Q. You change the paper at least?
A. It all depends.
Q. Sometimes you don't?
A. Sometimes it's unnecessary.
Q. Okay. You think that's good practice?
A. It entirely depends on the sensitivity of what one's trying to
do. If one is executing a procedure where one is looking for single
molecules of DNA, it would be absolutely essential to do -- to
bleach, to change the paper, to do everything that you're alluding
to. If one's working with a test that has a much higher threshold of
sensitivity, it becomes necessary to do those types of things. It
all depends on what you're threshold of sensitivity is.
Q. The LAPD didn't bleach down the area, change the paper, or use UV
rays on the notes when they processed these evidence samples, right?

A. It's my understanding from personal conversations with Colin
Yamauchi, and from his transcript, that he did not work with a
reference vial of blood at the same place that he worked with the
samples on June 14.
Q. Okay. That's your understanding?
A. Well, it's my understanding from being in the room and having him
show me exactly where he did it.
Q. Well, you weren't there on June 14, were you?
A. Well, he took me in the room and said, on June 14 I sat here and
did this and I went over there and did that.
Q. If he testified differently, your opinion as to how he handled
the reference samples would be null and void?
MR. LAMBERT: Objection, assumes facts not in evidence. He didn't
testify differently.
THE COURT: Overruled.
MR. P. BAKER: You can answer.
A. His testimony from the transcripts is exactly what I'm just
saying.
Q. (BY MR. P. BAKER) If he testified differently, your opinion would
be different, right?
A. If he --
MR. LAMBERT: It's like saying if he said something different than
what he said, his opinion would be different. It's completely
improper.
THE COURT: It's foundational. He can show that's different if that's
what he wants to show.
MR. LAMBERT: He's specifically misstating the evidence.
MR. P. BAKER: Your Honor's arguing. You can answer.
A. If Colin said something different, I would have to take into
account what he said in forming my opinion.
Q. Okay. You can get strike that. Contamination the difference
between contamination and cross-hybridization is difficult to
ascertain, right?
A. It can be very difficult.
Q. And the dots on the DQ Alpha strip are will meant to reveal the
presence of DNA, correct?
A. Yes.
Q. And weak signals can reflect the defect, right?
A. I'm sorry a defect, an artifact, it can show that a sample's not
been washed properly.
Q. Weak signals can do that?
A. Weak signals can be due to a number of things.
Q. And if a testing kit is prepared by Kirk and Zelmer
(phonetic) is properly used you won't get the weak signals, correct?

A. If a kit is properly prepared by Perkin Elmer, you would not get
these signals you're saying.
Q. Yes.
A. Again it just depends on how one executes the test.
Q. If it's properly used, you're not going to get
cross-hybridization, true?
A. I'm not sure I follow your question exactly. There's experimental
variations and even if one follows the protocol to the "T," it's
possible that one can get cross-hybridization.
Q. Did you ever see photographs of blood on the side of the
reference vial?
A. Blood on the side of the reference vial.
Q. This reference vial blood that spilled over on the side of it?
A. I never looked at his reference vial.
Q. They've showed you pictures of the reference vial?
A. I may have seen it but again that is -- Is something that I never
studied and looked at in any great detail.
Q. Okay. I want to talk to you a little bit about some of the
testimony you referred to a little bit earlier.
(Exhibit 1279 displayed.)
Q. You've seen this board before, right? Civil exhibit 1279 is up on
the . . .
A. I have seen this, yes.
Q. Okay. Now, QC816 is the quality control, right, for the DOJ
testing of the DQ Alpha strip?
A. Yes, it is.
Q. And that was supposed to come up with 1.2, 1.2, right?
A. That is correct.
Q. And every person has only two alleles, correct?
A. That is correct.
Q. Did -- there's more than that. It's either an artifact or it's
contamination, true?
A. It's an artifact or it's contamination. An artifact in a broad
sense, it can be due to any number of experimental variabilities and
if one is calling all those artifacts, it can be due to artifact or
contamination.
Q. But the DOJ testing of the DQ Alpha strip QC816 didn't come back
as only 1.2, 1.2, did it?
A. It did not.
Q. It showed a 1.3 also, correct?
A. That's correct.
Q. Okay. And the positive control which is submitted in order to
determine whether the DQ Alpha testing is being done properly didn't
come back the way it was supposed to either, did it?
A. Well --
Q. Let me rephrase it. That's not a very good question. The positive
control was supposed to come back as a 1.1, 4?
A. That's correct.
Q. It also had a hint of a 1.3?
A. That is correct.
Q. So both controls came back with a hint of 1.3 where they
shouldn't have, right.
A. It's a very, very weak 1.3; the DOJ policy is anything they
see, they write.
Q. Okay. And LAPD item 30 had the same 1.3 hint, right?
A. That's correct I'm not sure that the 1.3 hint is actually what
Colin Yamauchi would have written. I'm not sure he uses the same
terminology but there is a very faint 1.3 that one can see.
Q. And the 1.3 determination of LAPD item 30 should be questioned,
but you had a 1.3 on the QC816 control and you had a hint on the
CSC816 control and you had a hint of the 1.3 on the positive
control, right?
A. Well --
Q. Just answer that question, sir.
A. Well, whenever one is looking and evaluating these strips, one
has to evaluate what was done at LAPD and parallel with everything
else that was done in that same run at LAPD, what was done at DOJ
with everything else that was done with DOJ on that particular run.
Q. I guess my question was poor. LAPD determined this 1.3 to be of
evidentiary value, right?
A. LAPD reported that as a faint 1.3.
Q. Then when they looked at QC816, and the positive control, they
discarded the 1.3 findings on the two controls, right?
A. They discarded -- I'm sorry, can you repeat the last part.
Q. They ignored them?
A. They ignored the -- The faint 1.3, you're saying?
Q. Right.
A. They didn't ignore it.
Q. Well if the control showed a 1.3 at the QC816 and it showed a 1.3
as a positive control, this 1.3 on LAPD item number 30 should be
questioned as well. You'd agree with that, wouldn't you?
A. One has to question anything you see.
Q. Okay. But they, nonetheless, determined that it was a 1.3 dot on
LAPD item 30 regardless of the 1.3 dots on the other two controls,
true?
A. It's true they were -- they reported there was.
Q. Okay. Now, reviewing those dots is pretty subjective, correct?
A. Can be, yes.
Q. Now, you've seen the other board which is civil 1281. Okay. Now
civil 1 -- or civil 1281, get them mixed up with the numbers. Now,
on this one, the positive control should have come back as a 1.1, 4,
right?
A. That's correct. It was the same positive control that was used
before.
Q. And it again indicated a hint or trace of a 1.3, right?
A. That's correct.
Q. Now, the QC877 should have come back at 3, 4?
A. That's correct.
Q. But it came back with a trace of 1.3, true?
A. That's correct.
Q. Now, LAPD item number 52, that's a swatch collected on the Bundy
walkway. You know that, right?
A. Correct.
Q. That item showed a trace of a 1.3, true?
A. That's correct.
Q. Now, on that one, in terms of item 52, they decided to ignore the
1.3 hint on the evidentiary item, right?
A. That's Gary Sims, his explanation of that?
Q. I don't want his explanation, they can argue it. They've heard it
-- they've determined it to be a 1.3 hint but they ignored it, right
based on the controls?
A. They didn't ignore it. He's got it up there.
Q. But they didn't put that down in they're results as the findings
of the possible source of this blood on item 512, correct?
A.. Well on every sheet that I've seen in every board it's listed up
there it's a 1.1, 1.2 and a 1.3? Mr. Simpson doesn't have a 1.3
allele.
Q. Again, it's subjective science, true, Dr. Popovich?
A. It can be, yes.
Q. Now, I want to show you the next board, Civil 1276. Now, you
reviewed all of Dr. Gerdes's testimony, right?
A. I did.
Q. And you had no opinions rendered on direct about his testimony as
to the contamination in the reference samples, did you?
A. I had no opinion on that.
Q. You weren't asked any questions by Mr. Lambert about the
reference sample contamination?
A. I don't believe I was.
Q. Okay. Now -- and this board also shows that OJ Simpson doesn't
have a 1.3 allele on DQ Alpha line, right?
A. That's correct.
Q. Okay. And what's a GC locus system?
A. Well, it's one of the markers that is incorporated into the
polymarker. And it stands for group specific compliment and it's
just one of the genes that is incorporated into that test.
Q. Okay. Mr. Simpson's locus -- strike that. Mr. Simpson's the only
one with a GC locus?
A. It appears that he is, yes.
Q. Okay. Nicole Brown Simpson had an A, C Ron Goldman had an A, A,
right?
A. Yes. That's correct.
Q. Okay. Now, in terms of the reference sample of Nicole Brown
Simpson, the reference is sample supposed to be absolutely clean,
correct?
A. Oh, this -- it should be, yes.
Q. Taken right out of the person's body, right?
A. It can be, yes.
Q. And on June 14 the reference samples were tested in the order of
OJ Simpson.
A. June 15.
Q. June 15, OJ Simpson, Nicole Brown Simpson and Nicole and Ron
Goldman?
A. On June -- you may want to rephrase things. The dates are a bit
off.
Q. They were examined, the reference sample on June 15 in the order
of OJ Simpson, Nicole Brown Simpson and Ron Goldman.
MR. LAMBERT: Misstates the evidence?
A. Incorrect.
Q. What order were they tested?
A. June 14 Mr. Simpson was tested, June 15 Nicole Brown and Ron
Goldman's was tested.
Q. They were tested in the order they appear from left to right on
the top of that board?
A. That would be correct.
Q. Okay. Now the reference sample of Nicole Brown Simpson had a 1.1,
1.1, but also showed a 1.2, right?
A. What was listed as a hint, yes.
Q. And that's consistent with OJ Simpson reference sample?
A. Mr. Simpson has a 1.2 allele, yes.
Q. Reference sample of Ron Goldman showed a 1.3, 4, and a 1.1 which
is consistent with OJ Simpson, right?
A. That is correct.
Q. And they had a possibility of a 1.2, right?
A. It was listed as a possibility of a 1.2.
Q. Consistent with Mr. Simpson's reference vial, right?
A. That is correct.
Q. There should be no contamination in the reference samples, true?
A. That is correct.
Q. Now, also, Nicole Brown Simpson's reference samples showed a
faint B GC locus?
A. That's correct.
Q. That's consistent with Mr. Simpson's reference vial?
A. That is correct. He has a B allele.
Q. Okay. And that demonstrates that there's not cross hybridization
right?
A. I believe that the B allele in the GC is due to
cross-hybridization.
Q. You can't differentiate between cross-hybridization and
contamination, can you?
A. No. It comes down to possibility of something versus the
probability and what is the bottom line here is that one's dealing
with samples that are very rich in DNA and Nicole Brown Simpson --
that's the way this test is designed. Any time you overwhelm the
system with too much DNA, one can get cross-hybridization. When one
would expect cross-hybridization is in samples that contain a
reasonable amount of DNA, and so the explanation that was rendered
by Dr. Cotton --
Q. I move to strike.
A. -- regarding.
MR. LAMBERT: Your Honor, let him finish his answer.
THE COURT: Finish your answer.
MR. BAKER: Nonresponsive.
MR. LAMBERT: It is responsive.
THE WITNESS: The explanation rendered by Dr. Cotton as to that faint
allele, I would agree fully that the more likely explanation other
than contamination is if, in fact, that is cross-hybridization.
Q. Contamination is an explanation, though, right?
A. Is one explanation.
Q. And you are just trying to offer up your testimony as to why
there is contamination or hybridization of the samples between the
reference samples, right?
A. I wasn't asked to give an explanation. I was just asked if the
type was consistent with Mr. Simpson.
Q. And the both of them are, right?
A. But I didn't -- they are, but I did not give an explanation.
Q. Okay. Now you don't even use the polymarker system in your lab,
do you?
A. It's the only one of the markers that's used in this set -- This
study that we do not use, that's correct.
Q. Okay. Now, in terms of the Bundy drops, you are aware, are you
not -- we can take that down
(indicating to exhibit). You are aware, are you not, Ms. Mazzola
testified that she initialed the bindles, correct?
A. I'm afraid --
MR. LAMBERT: Objection. We went through this yesterday. It misstates
the testimony.
MR. P. BAKER: Your Honor the objection was overruled.
MR. LAMBERT: No, it was not. It was sustained.
THE COURT: What's the question?
MR. P. BAKER: You are aware that Ms. Mazzola has testified under
penalty of perjury that she initialed the bindles?
MR. LAMBERT: Misstates her testimony.
THE COURT: Sustained.
MR. P. BAKER: Your Honor, we can go to side bar?
THE COURT: I'm not going to do that again. I made a ruling, I'll
stand on it.
Q. You're aware that the bindles did not have initials of the Bundy
swatches?
A. I'm not aware of that.
Q. You are aware that -- The swatches were purportedly dry when
placed in the bindles?
MR. LAMBERT: Objection. Beyond the scope; has nothing to do with
contamination.
MR. P. BAKER: We're talking about DNA Bundy swatching, the DNA
testing of the Bundy swatches.
MR. LAMBERT: Nothing to do with this testimony.
THE COURT: You may ask whether that was a factor he considered and
ask him his opinion.
MR. P. BAKER: Was it a factor you considered that there was
testimony that the swatches were dry when they were placed in the
bindles?
A. Well, there was a lot of -- again, that was outside what I was
asked to fundamentally do in this case. Therefore, there was a
conflicting testimony about if they were dry, they weren't dry. So I
don't know the answer to that. I mean my understanding is that maybe
they were dry, maybe they weren't. I can't answer that. Again, that
was not fundamentally important for me to know that to evaluate this
evidence.
Q. So the handling of the samples was not fundamentally important to
your opinion as to whether there was contamination or not. Is that
what you're saying?
A. I'm not a forensic scientist, I do not investigate crime scenes.
Q. So the way the samples were handled doesn't make a difference to
you, right?
A. It's not true at all. That's not what I'm saying.
Q. Well, did you rely on some of the testimony that said that the
bindles, that the swatches were wet when they were -- that the
swatches were dry when they were placed in the bindles?
A. To me it doesn't matter if they're wet or dry for my evaluation
of the evidence.
Q. So if the bindles showed wet transfers, that wouldn't matter?
A. If the bindle from the swatches?
Q. If bindle showed evidence of wet transfers from the swatches,
that wouldn't matter to you?
A. I am aware that there was testimony that there was a bit of
transfer from some of the swatches onto the bindle, yes.
Q. Now, in terms of the Bundy drops, you talked about a main factor
in your determination was the cleanliness of the substrate controls,
right?
A. It's a very important factor, yes.
Q. Can you tell this jury what a substrate control is, remind the
jury.
A. Well, a substrate control is just simply a -- a sample that is
removed from an area adjacent to where the actual stain is being
picked up. And it's to tell you a couple things. It's to tell you if
there's something that's present on that substrate, on that surface,
could inhibit you getting results. And number 2 it's to tell you if
there's anything else that's there, that you can't see, that's
influencing the results.
Q. So a substrate is almost, in a sense, synonymous with a surface
that -- a substrate control of a carpet, you'll take it of a
sidewalk, you'll take it of a driveway. The way forensic scientists
use the term, it's synonymous with the surface it was taken from.
The substrate controls in terms of bindle swatches were totally
clean?
A. They were, yes.
Q. In fact they were immaculate, weren't they?
MR. LAMBERT: What do you mean immaculate?
MR. P. BAKER: There wasn't any dirt on any of them, was there?
A. I was -- again this was not fundamentally important to the DNA
evidence in the case, but I thought there was testimony that some of
those were pinkish in color.
Q. There was no dirt on any of the Bundy swatches, as far as you
know, as you sit on that stand today, right?
MR. LAMBERT: Asked and answered, Your Honor. He just answered it.
MR. P. BAKER: Not that question.
THE COURT: Answer that question, if you can.
A. Well, the color that was transferred on some of these substrate
controls is, in fact, evidence that whatever was there was picked
up from that surface.
Q. Dirt. The question was dirt, sir. Any dirt on the substrate
controls at all?
A. Maybe there was dirt; it was something that was picked up and
transferred to those.
Q. You think you may get some dirt if you took some substrate
controls of a muddy, leafy walkway?
MR. LAMBERT: No foundation for any of this, Your Honor. It's also
argumentative, and has nothing to do with his testimony. It's way
beyond the scope.
MR. P. BAKER: I didn't hear the ruling.
THE COURT: I think that's beyond his expertise.
Q. (BY MR. P. BAKER) You've seen the photos of the Bundy walkway,
have you not?
A. I've seen those.
Q. You see dirt along the walkway, right?
A. Well, I've never looked at those photographs in any detail. I've
seen copies of them, but I've never seen the actual exhibits. No, I
have not.
Q. You've seen dirt and oil along the driveway?
A. I've never seen that.
Q. Okay. None of the substrate controls, as far as you know, from
Bundy, have dirt on them?
MR. LAMBERT: Asked and answered.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) By the way, in terms of the reference samples,
was there any contamination of OJ Simpson's reference sample?
A. Was there contamination?
Q. Any sign of contamination or cross-hybridization
A. I'd have to see the board.
Q. Okay.
A. I don't recollect --
MR. LEONARD: Which defense exhibit, Phil?
A.
(Continuing.) I'll tell you, as far as I know, there was no
contamination or cross-hybridization of Mr. Simpson's reference
sample, right.
MR. LEONARD: Just for the record, we have the -- which defense
exhibit is that?
MR. P. BAKER: You're looking at board 1275.
MR. LEONARD: Thank you.
A. In the DQ Alpha or the polymarker?
Q. Yes.
A. I'm trying to recall. I mean -- and you're referring me to that
DOJ, or at which lab?
Q. Either one. There was no showing of contamination or
cross-hybridization of Mr. Simpson's reference sample, right?
A. That's correct. I don't believe that -- I don't recall there
being any cross-hybridization.
Q. Okay. Now, in terms of the swatches or the socks, rather, what
was Nicole Brown Simpson -- what was the nanogram level of Nicole
Brown Simpson's stain, the stain we've identified as that of Nicole
Brown Simpson?
A. It was quite high.
Q. Thirteen hundred, right?
A. Again, I don't have those numbers committed to memory, but there
was a lot in that stain, yes.
Q. That's consistent with the blood sample coming from a reference
vial, right?
A. I'm not sure what "consistent" means.
Q. You don't know what "consistent" means?
A. You mean -- are you saying is it consistent that somebody could
have taken blood from a reference vial and put it on that sock and
ended up with 1300 nanograms.
Q. Yes.
A. Sure.
MR. LAMBERT: Argumentative.
Q. (BY MR. P. BAKER) There was EDTA found in that sock.
MR. LAMBERT: Objection. Argumentative; beyond the scope; misstates
the evidence.
THE COURT: Show me where that is. Approach the bench.
(The following proceedings were held at the bench, with the
reporter.)
MR. P. BAKER: I don't have that much longer. I've got about --
THE COURT: Well, there's an objection.
MR. P. BAKER: I know.
MR. LAMBERT: This witness hasn't testified at all about EDT
A. He's talking about one examination. EDTA is a planting issue.
This witness has nothing to do with EDT
A. And of course, we've just put on a witness who said there was no
EDTA on this sock. This guy didn't know anything about. EDTA --
MR. P. BAKER: He gave conclusionary testimony as to all the
evidence. They said, is this evidence reliable.
THE COURT: Where is your document that there was EDTA?
MR. P. BAKER: Mr. Rieders said there was EDTA on the sock.
MR. LAMBERT: No; he said EDTA could not be
MR. LEONARD: Then we have our expert who said it.
THE COURT: Did Dr. Rieders testify there was EDTA on the socks?
MR. LAMBERT: He said there was EDTA on the socks -- could be EDTA on
the socks. My guy said it wasn't. But this guy doesn't know anything
about it.
THE COURT: Overruled.
(The following proceedings were held in open court, in the presence
of the jury.)
Q. (BY MR. P. BAKER) Dr. Popovich, you are aware, are you not, that
EDTA was found in the sample taken from the socks? True?
A. I am not aware of that.
Q. Never heard of that before?
A. I don't have any firsthand experience with any of that, no.
Q. Mr. Lambert didn't tell you that Frederic Rieders had testified
that there was EDTA found in the sample taken from the socks?
MR. LAMBERT: Argumentative.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) Did he tell you there was EDTA found in the
back gate?
MR. LAMBERT: Same thing. Beyond the scope, too.
THE COURT: You may -- you know, you can ask whether or not anybody
told you there was EDTA on anything.
Q. (BY MR. P. BAKER) Anyone ever tell you that?
A. Mr. Lambert and I never discussed anything about EDT
A.
Q. That would impact your analysis of contamination in this case,
wouldn't it?
A. If there was EDTA present?
Q. Sure.
A. I mean, what I'm looking at is DNA types and saying if there's
consistency or inconsistencies based on DNA typing, not on mass
spectrometry and EDT
A.
Q. It would impact your opinion when you tell this jury that the
evidence is reliable as to the socks and the back-gate stain, right,
Dr. Popovich?
A. Again, I'm not an expert in EDTA and the techniques used to
analyze EDTA, so I can't comment on that.
MR. P. BAKER: Your Honor, I ask that the witness be instructed to
answer my question.
THE COURT: I just did.
MR. P. BAKER: I move to strike as nonresponsive.
THE COURT: That will remain.
Q. (BY MR. P. BAKER) You said the stains in the Bronco were
identical, 30 and 303, right?
MR. LAMBERT: Objection. Misstates the testimony.
MR. P. BAKER: Concordant -- I don't want to misstate you -- was the
concordant -- there was also 30 and 303 of the one Bronco console.
A. That's not what I said.
Q. You didn't say that to this jury, that the samples of 30 and 303
taken on the console were concordant?
A. No.
Q. Okay. Page 58 of the depo --
A. Excuse me. Could we put the board up?
Q. You need the board?
A. Yes, please.
Q. Their board, the Bronco board?
A. Yes.
THE COURT REPORTER: Phil, do you know the number of this?
MR. FOSTER: 293.
MR. P. BAKER: 293, Gina.
THE COURT REPORTER: Okay.
Q. (BY MR. P. BAKER) You said that 30 and 303 were concordant to
this jury earlier.
A. I believe the number is 31.
Q. Okay. 31 and 303; is that your testimony?
A. That's what I believe I testified to, yes.
Q. Okay. I'm sorry. Item 31 was collected on June 14, 1994, right?
A. That's correct.
Q. That test could only be run with PCR technology, right? You
couldn't do an RFLP test on 31 because it wasn't strong enough?
A. It could be done with PCR technology.
Q. My question is, you couldn't do an RFLP test on item 31 because
it wasn't strong enough?
A. At the time the evidence was gathered, that's correct.
Q. Then, on August 26, they collected item 303, right?
MR. LAMBERT: Objection. Actually misstates the evidence.
MR. P. BAKER: This is September 1.
MR. LAMBERT: Now you got it.
Q. (BY MR. P. BAKER) September 1. September 1?
A. Yes, that's correct.
Q. Then it was strong enough to run an RFLP test?
A. No.
Q. They didn't do an RFLP test?
A. On 303?
Q. Yes.
A. Not by itself.
Q. What did they do it with?
A. 304 and 305.
Q. Okay. Were you shown the picture taken on August 10 of the
console by George Carmaney that did not show blood on that console
where 303 was collected?
MR. LAMBERT: Completely beyond the scope.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) Dr. Popovich, if there was contamination in the
LAPD lab, you'd admit that contamination would have passed to
Cellmark and DOJ in terms of these swatches, correct?
A. Again, I think -- can you be a bit more specific on that?
Q. If a swatch was contaminated at LAPD, it could be contaminated
when it went to Cellmark, DOJ, correct?
A. If all the swatches that were in evidence for a particular item
were contaminated, not -- it wasn't the same swatch that went to
each of the labs. That's why I'm being very precise here.
Q. I'm just saying, sir, if the swatch was contaminated at LAPD, it
would have been contaminated thereafter; true?
A. That is correct. Absolutely.
Q. You have no independent knowledge, as you sit here today, whether
or not there was contamination as to these evidentiary samples,
independent knowledge, sir?
MR. LAMBERT: What does independent mean? I don't understand the
question.
Q. (BY MR. P. BAKER) There could be contamination here, right?
A. I'm not sure what "independent" means.
Q. There could be contamination; you don't know?
A. It's my -- my professional opinion that it -- it is not due to
contamination. That's what I testified to.
Q. You don't know if there was contamination or not, true?
MR. LAMBERT: Objection. Argumentative. He's given his expert
opinion.
THE COURT: You understand what the question is?
THE WITNESS: I think so.
THE COURT: Can you try to answer it?
THE WITNESS: Okay. I mean --
MR. P. BAKER: Thank you.
A. There's always a possibility of contamination. But I believe it's
not probable that there was contamination.
Q. (BY MR. P. BAKER) Every piece -- every lab that does PCR testing
has contamination?
A. Every lab that does PCR has experienced it, if they know it or
they don't.
Q. As contamination?
A. Every lab that does PCR has had contamination.
MR. P. BAKER: Nothing further.
THE COURT: How long is your redirect going to be?
MR. LAMBERT: Probably 10, 15 minutes.
THE COURT: All right. Have lunch, ladies and gentlemen. Come back at
1:30.
(At 12:01 P.M., a luncheon recess was taken until 1:30 P.M. of the
same day.) SANTA MONICA, CALIFORNIA; THURSDAY, JANUARY 16, 1997
1:30 PM DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE.
APPEARANCES:
(Per Cover Page)
(REGINA D. CHAVEZ, OFFICIAL REPORTER) REDIRECT EXAMINATION BY MR.
LAMBERT:
(continued)
Q. Good afternoon, Dr. Popovich.
A. Good afternoon.
Q. You were asked some questions on cross-examination about the
reference -- the victim's reference strips, the DQ Alpha strips, and
the polymarker strips?
A. Yes, I was.
Q. Did you have an opportunity to review those strips as part of
your examination of materials in this case?
A. I did.
Q. Did you see any evidence of contamination on those strips?
A. I did not.
Q. The -- The items that were pointed out to you in
cross-examination that Mr. Baker asked you about, whether those were
the same alleles as Mr. Simpson had in his blood, in your view, did
those alleles show any evidence at all of contamination of Mr.
Simpson's blood with the reference vial?
A. I see no reason to believe that those were derived from Mr.
Simpson's reference file.
Q. What is the scientific explanation for those segments that you
saw?
A. Well, the scientific explanation is that one has to look at the
sequence, which things were performed, and if, in fact, Mr.
Simpson's blood from -- from the vial was to have contaminated
those, then there are many steps, controls, that would have been
processed simultaneously that would also exhibit contamination. And
the fact that not -- not just one, but all of those, uniformly show
absolutely no evidence of contamination, allows one to make very,
very subjective judgments and be very objective about what they're
seeing. And there's no evidence at all, because all those controls
are negative, that any of that could be due to contamination.
Q. Incidentally, Doctor, where were the Fitzco cards for the
reference -- for the victim's reference strips, where were those
prepared?
A. For the victims, it was in a completely separate part of the lab
from where the processing of the stains was done. Part of the lab
was called the evidence processing room; that's where the
processing of all the samples, with the exception of the two
victims' samples, were processed. They were processed in a separate
lab called the serology lab, which is physically within the same
building, but completely separated. There's absolutely -- I mean
it's incomprehensible that there could be any contamination between
those two reference vials of the victims and any of the other
evidence.
Q. You were also asked some questions about Item 52, the Department
of Justice's DQ Alpha strip for that item. Again, did you see any
evidence of contamination in that item?
A. No, I did not.
Q. These hints or traces of a 1.3 allele; what are those in effect,
Doctor?
A. Well, the 1.3 that's seen -- might it be helpful to look at the
board?
Q. Sure. It's right inside here. I think I can get it quickly.
MR. LAMBERT: I thought I could get it but it's --
MR. P. BAKER: Putting up on the board, Civil 1281.
(Exhibit 1281 displayed.)
A. Here we go. Okay.
Q. And you were about to explain this 1.3 issue in regard to Item
52?
A. Yes. Relating to that and what is depicted in this particular
figure, you could see at the top that there is a -- it says Item 52,
and at the bottom it also says 52. What ended up happening at the
Department of Justice, if we look at the column to -- to the right
of the strips where the actual results are indicated, it says at the
top, 1.2 -- I'm sorry, 1.1, 1.3. And then below that 1.3 with a
trace. And then at the very bottom it says 1.1, 1.2, 1.3, very faint
trace. Now, what, in fact, happened was when 52 was originally done,
it was -- the top strip, it was -- it's one at the top of that
figure. And what the analysts realized in looking at that was that
there was -- in fact, that the 1.3 that is depicted there --
MR. P. BAKER: Objection, speculation, no foundation.
THE COURT: Overruled.
A. What they realized is that the 1.3 that was there could be due to
-- reasons having to do with cross-hybridization. What they then did
was to redo the hybridization for that, which is at the bottom, and
that is a separate strip. It was repeated. I mean they did exactly
what one would do in a situation where there was a question about
the validity of this particular piece of evidence. They repeated it
and they got the result at the bottom. What one can see at the
bottom is that 1.3 essentially goes away when they repeated it. What
that indicates -- that's a very, very strong indication that what
we're dealing with here is cross-hybridization. Furthermore, it's a
1.1, 1.2 genotype; the prominent type. The significance of it being
a 1.3 is paramount as giving this cross reaction. And the reason is
that the -- the difference between the 1.2 and the 1.3 is a single
base pair in that sequence. So the discrimination -- this is testing
the ultimate ability of this test to discriminate between a 1.2 and
a 1.3, and because there's a lot of DNA, it has led to this
cross-hybridization. It's completely logical in terms of one being
able to look at this and be very objective about looking at all the
data, especially the fact that it was repeated, in being able to
make that judgment.
Q. And this evidence Item 52, was it also tested by Cellmark
Laboratory?
A. It was.
Q. What were their results?
A. They were the same.
Q. So their results matched the 1.1, 1.2, that Department of
Justice called in regard to this item?
A. That's correct.
Q. Does that give you further comfort that this is simply
cross-hybridization that's being seen here?
A. That's exactly what it says to me.
Q. Now, you were also asked some questions about Colin Yamauchi's
handling of the reference vial. Did you see any problems at all in
the way Colin Yamauchi handled Mr. Simpson's reference vial in doing
the sampling in this case?
MR. P. BAKER: Asked and answered.
THE COURT: Overruled.
A. I see no problem whatsoever with the way it was handled.
Q. (BY MR. LAMBERT) Mr. Baker asked you some questions about the
approximately 3,000 nanograms of DNA that were on the socks.
MR. P. BAKER: 1300.
Q. I'm sorry, 1300 nanograms of DNA on the socks. Is that an amount
of DNA that's consistent with the blood being splattered on the
socks at the time of the crime?
A. It's possible.
Q. Now, you were also asked some questions -- Mr. Baker asked you
some questions about transferring of DNA from one hand to another.
Do you remember that you put it on one hand?
A. Yes.
Q. Is it important for laboratories to establish controls to ensure
such transfers don't occur?
A. Yes.
Q. Did the laboratories testing here have such controls in place?
A. Yes, they do.
Q. Do you see any problems whatsoever in their test results in this
case as a result of any such transfers?
A. I do not. And even to just go a step farther -- I mean it's
important to point out that the standards that were -- which were
used in all three of these labs, and their handling of these
particular items, is equal to, if not exceeding, the standards that
are used in medical diagnostic labs in making important decisions
regarding people's health, regarding DN
A. It's no different. And the standards were equally -- equal to, if
not exceeding, that in the medical world.
Q. Mr. Baker, talking about evidence -- Item 31, asked you some
questions about subjectivity and PCR testing. And you said that
occasionally there is some subjectivity involved in making
judgments about those tests. How is that subjective judgment
exercised by the people doing these DQ Alpha strips?
A. Well, it's based on experience and it's based on being objective
in terms of looking at all the data. So it would be -- one needs to
look at everything that took place in a series of experiments where
one is -- where this is a part of that. And one needs to look at --
be very objective, look at all this data in terms of drawing
conclusions, just as I did with No. 52, and what I call
cross-hybridization. And the subjectivity is based on that
experience and being objective and looking at all the data that one
has to rely on. And again, I need to stress to you that oftentimes
we have to do this and we have to look at this data and make
subjective calls. And in the medical world, and I'm not trying to
overdramatize it, we make life and death decisions based on this. At
times you have to do it, and you have to look at all the cards on
the table, and you have to make your best judgment based on all the
facts. And that's what I believe was done here, and I believe that
they did it accurately.
Q. And in your view, did Gary Sims and Robin Cotton have the kind of
experience and background that enables them to make those
subjective judgments?
MR. P. BAKER: Irrelevant, argumentative.
THE COURT: Overruled.
A. Absolutely.
Q. (BY MR. LAMBERT) In regard to most of the PCR test results in
this case, was the subjective judgment call even necessary, Dr.
Popovich?
A. For the vast majority, not at all, it was very straightforward.
Q. Finally, you were asked some questions about the relatively small
number of nanograms in the Bundy blood drops. Do you remember those
questions?
A. Yes.
Q. Is it uncommon in your experience in criminal cases for there to
be a relatively low number of nanograms in evidence items?
A. Not at all.
Q. Does that prevent them from being tested accurately?
A. As long as there is an amount that exceeds the threshold of the
sensitivity of that task, it can be done and the results can be
accurate.
Q. In regard to all Bundy blood drops, were they above that
threshold?
A. The ones that yielded results were above that threshold, yes.
MR. LAMBERT: No further questions, Your Honor. RECROSS-EXAMINATION
BY MR. P. BAKER:
Q. Did you ever go over the question that Mr. Lambert was going to
ask you over lunch?
A. We did go over the questions.
Q. Did you tell him what the answers were going to be?
A. Not really.
Q. Did the term EDTA come up at lunch?
A. Not at lunch.
Q. Didn't mention it?
A. Nope.
Q. Let's talk about 52. December -- or I'm sorry, October 31, 1994,
they get a trace of 1.3, right?
A. They do.
Q. December 31, 1994, they get a very faint trace of 1.3, right?
A. That's correct.
Q. Neither is consistent with OJ Simpson, correct?
A. That's correct.
Q. Now, the development length of the December 31 test is indicated
with 22 minutes, right?
A. That's correct.
Q. The development length taken on October 31 is not indicated,
right?
A. That's partially correct.
Q. What was the development length?
A. Well, the development time, although not indicated -- Gary Sims
indicated that, in fact, what is normally done as a routine part of
the protocols at the DOJ is to expose them to a point where it
doesn't really matter.
Q. The development length time of Item 52 on December 31, 1994, you
have no idea what that is, true?
A. On December 31?
Q. I'm sorry. You're right. October 31, 1994?
A. That was performed at DOJ?
Q. Right.
A. It was done according to their standard protocol.
Q. You don't know what time it was on Item 52?
A. I do not know the exact time, correct.
Q. And the amount of development length can affect the showing of
the dots on the DQ Alpha strips; you would agree with that, right?
A. I would.
Q. Okay. Now, the reference vials -- the three reference vials
weren't always in the evidence processing room, were they?
A. I just testified that some were never in there.
Q. In fact, Phil Vannatter had his hands on all three at one point,
didn't he?
MR. LAMBERT: Objection, irrelevant, beyond the scope, argumentative.

THE COURT: Sustained.
Q. (BY MR. P. BAKER) 1300 nanograms on the socks is also consistent
with blood coming from a reference vial; is that true?
MR. LAMBERT: Objection, asked and answered.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) You don't know how the swatches were collected,
do you?
MR. LAMBERT: Outside the scope, Your Honor.
THE COURT: Outside the scope of cross-examination -- or redirect,
rather, I'm sorry.
Q. (BY MR. P. BAKER) You've never collected swatches at a scene,
right?
MR. LAMBERT: Still outside the scope.
THE COURT: Sustained.
MR. P. BAKER: All of your opinions are based on the swatches you
observed; you don't know how the blood got there, do you, Dr.
Popovich?
MR. LAMBERT: Outside the scope, argumentative.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) In your lab you have weekly meetings on PCR?
MR. LAMBERT: Outside the scope.
MR. P. BAKER: They talked about PCR testing.
THE COURT: Not weekly meetings. Sustained
Q. (BY MR. P. BAKER) What's dry-labbing, sir?
MR. LAMBERT: Objection, beyond the scope, argumentative.
THE COURT: Sustained.
MR. P. BAKER: I have nothing further.
MR. LAMBERT: Nothing further.
THE COURT: You may step down.
MR. LAMBERT: I move 2264 and 2265 into evidence.
MR. P. BAKER: No objection.
THE COURT: Received.
(The instrument previously marked as Plaintiffs' Exhibit 2264 for
identification was received in evidence.)
(The instrument previously marked as Plaintiffs' Exhibit 2265 for
identification was received in evidence.)
MR. GELBLUM: Plaintiff's call Gerald Richards, Your Honor.
THE CLERK: Sir, please have a seat in the witness stand.
THE WITNESS: Thank you. GERALD RICHARDS, previously called as a
witness on behalf of the Plaintiffs, was duly sworn and testified as
follows:
THE CLERK: You've been sworn previously. You're still under oath.
Would you please state your name again for the record.
THE WITNESS: Yes, ma'am. It's Gerald B. Richards, R-i-c-h-a-r-d-s.
DIRECT EXAMINATION BY MR. GELBLUM:
Q. Afternoon, Mr. Richards.
A. Afternoon.
Q. Sir, did you recently have the opportunity to examine certain
photographs taken by a gentleman named EJ Flammer on September 26,
1993, in Buffalo, New York?
A. Yes, I did.
Q. I've placed before you on the witness stand certain prints. Are
those prints of the photographs you examined?
MR. GELBLUM: For the record, those are Exhibits 2324 through 2353.

A. It's mixed up here.
(Witness reviews photographs.)
A. Yes, sir. Appears to be -- a number of them appear to be
repeated.
Q. Okay. What exactly did you examine, sir?
A. I examined the original negatives, proof sheets, or contact
sheets, 11 by 14 and 20 by 24 enlargements.
Q. Where did you conduct this examination?
A. For most of that material, I conducted the examination in
Buffalo, New York.
Q. Did you examine all the negatives of the 30 photographs?
A. Yes, I did.
Q. Does that include a negative 7A, the one that was published in
November 1993 in the Buffalo Bills weekly?
A. Yes, it did.
MR. GELBLUM: Would you put that one up, please, just to remind the
jury what we're talking about.
Q. Did you examine the negative of that print, sir?
A. Yes, sir. Yes, I did.
Q. And were you examining the various materials you just identified,
including the negatives, to determine whether there were any signs
of alteration?
A. Yes, sir.
Q. Did you pay particular attention to any particular part of the
negatives?
A. The image of Mr. Simpson, and in particular, the lower portion of
his body including his pants and shoes.
Q. And what equipment did you use to conduct this examination?
A. I used again a Bausch and Lomb stereomicroscope with a zoom lens
system in it, a number of eye loupes varying from 3 to approximately
12 power. I also used a variety of scales, measuring devices. Again,
I also used a variety of lighting sources.
Q. Okay. Was there any equipment that you used when you examined the
Scull photograph which you testified to about two days ago here in
court, that you did not use this time?
A. The only thing I did not do on these was use a micrometer to
determine the thickness of the film. And it was simply because I
forgot to bring the micrometer with me.
Q. Did that affect your examination in any way, sir?
A. No, sir, it did not.
Q. When you testified a few days ago, you told the jury what you
were looking for, the kind of things you were looking for, you
examined the Scull photograph -- prints and contact sheets, and the
kind of examination you conducted. Did you do the same thing when
you examined the Flammer negatives and contact sheets and prints?
A. Yes, sir, basically the same procedure.
Q. Okay. At the conclusion of your examination, did you find any
signs, whatsoever, of any alteration in any of the Flammer
negatives, contact sheets, or prints?
A. No, I could not.
Q. Is it your conclusion there were no signs of alteration in those
materials?
A. Yes, sir. Based on my analysis of the negatives, the contact
sheets, and the enlargements that I had made -- actually, I did not
say before I had 8 by 10, 11 by 14, and 20 by 24 enlargements made
for examination purposes, and I could find no discernible evidence
of alteration or substitution in any of the photographs involving
Mr. Simpson.
Q. And does that conclusion regarding the Flammer photographs have
any bearing, any affect at all, on your conclusion regarding the
Scull photograph that you testified to a few days ago?
MR. LEONARD: Your Honor, I'm going to object to that, beyond the
scope based on your earlier ruling with regard to my
cross-examination.
THE COURT: Well, the scope's been enlarged, I think. Overruled.
A. Yes, sir, of course. That supports it substantially, that we have
images and different poses, different situations of an individual
having the same identical clothing, including jacket, tie, shirts,
pants and shoes. With the absence of any type of suggestion or
indication of alteration, it has just substantiated the conclusion I
had regarding the Scull photograph.
Q. Thank you, sir.
MR. LAMBERT: I have nothing further. CROSS-EXAMINATION BY MR.
LEONARD:
Q. Nice to see you again, Mr. Richards.
A. My pleasure, sir.
Q. Now, did you say that you examined the negative that was
purported to be the source for that photograph that was published in
the Buffalo Bills News?
A. Yes, sir, I did.
Q. Okay. You were never provided with the actual black-and-white
print that was utilized for that photograph, were you?
A. No, sir, I never was.
Q. Now, you said that you examined all of the negatives; is that
right?
A. Yes, sir.
Q. Okay. Now, in your career as an FBI agent, you testified earlier
that you had been involved in two or three cases a year involving
questioned photographs, right?
A. Approximately, yes.
Q. Okay. Would you agree with me, sir, that it would be a very rare
occasion that you would have access to what was purported to be the
original negatives of questioned photographs when you undertook
those examinations at the FBI?
A. Yes, sir, that's true.
Q. Very rare. Maybe once every two or three years, correct?
A. I'd say it was probably correct, yes.
Q. Now, you aren't testifying to this jury that you are 100 percent
certain that these photographs are fake, are you?
A. I'm testifying to this jury --
Q. Can you answer my question yes or no?
A. I don't know if I can answer that yes or no correctly.
Q. Do you remember me asking you that question in the deposition
recently and you answering that no, you can't say that? Do you
remember that, sir?
A. Yes, I did.
Q. Is that your position now, before this jury, or do you want to
change your position?
A. No, I don't want to change my position. But I would like the
question restated, if I could, 'cause I'm not sure what you mean by
it.
Q. You can ask -- Mr. Gelblum can restate it if he needs to. Now,
you would agree with me, would you not, that if someone is motivated
enough, and has access to the most advanced techniques and
technology, they can create a fake photograph that is virtually
impossible to detect? Would you agree with that?
MR. GELBLUM: Objection, this was asked and answered the other day,
Your Honor.
MR. LEONARD: We're dealing with different photographs.
MR. GELBLUM: Exact question.
THE COURT: We'll give Mr. Leonard wide latitude.
A. I would --
MR. LEONARD: Thank you.
A. I would say given enough time, equipment, money, talent, it would
take all four together, and the concerted effort, yes, sir.
Q. (BY MR.
MR. LEONARD) They would probably need to be pretty considerably
motivated, wouldn't they, sir?
A. Yes, sir.
Q. Now, you went up to Buffalo, what, on January 7?
A. Yes, sir.
Q. Spent about a total of little less than two hours actually
looking at photographs?
A. Little more than that. About two and a half hours physically
looking at the photographs.
Q. And one of the things you were looking for, of course, was this
-- as you described before, any evidence of -- of digital
manipulation, correct?
A. That's correct.
Q. And in order to do that, you had to look around carefully,
microscopically, around the edge of each photograph, each negative,
correct?
A. Well, the edge itself is one spot that you look, but the presence
of digital manipulation would not necessarily only show up on the
edges.
Q. So my question was, you had to carefully look around,
microscopically, the edge of each negative, right?
A. Yes, sir.
Q. In order to do the evaluation properly?
A. Yes, sir.
Q. And you had to look around the edge of anywhere in the
photograph, any particular element in the photograph that you were
particularly interested in, correct?
A. Correct.
Q. And you had to do that carefully, and had to do that
microscopically, millimeter by millimeter, correct?
A. Yes, sir.
Q. And it's your testimony that you did that with each and every
negative, each and every print, is that right, sir?
A. Each and every negative containing images of Mr. Simpson
particularly.
Q. And there were 30 of them?
A. Yes, sir.
Q. And you testified at your deposition that you spent, what, about
two minutes on each negative; is that right?
A. Somewhere between two and three minutes, I believe I said.
Q. Now, you've also testified earlier that this isn't an exact
science, what you do?
A. That's true.
Q. It involves some subjective judgments, right?
A. Yes, sir.
Q. Some calls about whether or not phenomenon that you see are
indicia of fakery or otherwise innocent, correct?
A. That's correct.
Q. Now, you did find some scratches along the photographs or along
the negatives that you saw up in Buffalo, correct?
A. Scratches on the negatives themselves.
Q. And also you found what you thought might be continuous scratches
along the side of the negatives, correct?
A. No, I found continuous scratches on both -- the bulk of the
negatives on the sides and in the center.
Q. Okay. And in the case of the Flammer photographs, sir, unlike the
Scull photograph, you were unable to discern or reach a conclusion
whether these scratches could have been caused by the camera or by
some other mechanism; is that right?
A. Yes, sir. I did not -- I did not attempt to determine if they
were caused by either the camera mechanism or the processing
mechanism. I just recognize that they were scratches.
Q. And you also weren't able to match each scratch with -- in other
words, as the scratch continued along the side, you weren't -- there
were numerous of them, you told me there were many, many, many, and
you were unable to match each of them up. Remember you testifying to
that at the deposition?
A. Yes, sir.
Q. Now, this is an area where you had to make a subjective judgment;
isn't that true?
A. Yes, sir.
Q. You told me that there are no standards to determine whether or
not you can call a scratch continuous, that you just have to match
up what you thought was a majority of the scratches. Do you remember
that?
A. Yes, sir.
Q. That's something that's subjective, there's nothing -- there's no
guidelines we look to, there's no books, there's no nothing that can
tell us about that, right?
A. That's correct.
Q. That's just something that you have to decide yourself?
A. Yes, sir.
Q. And that goes for your analysis of many of the phenomenon that
we've been talking about, both with regard to the Flammer
photographs and the Scull photograph, correct?
A. Yes, sir.
Q. Now, you had to obtain some of the materials from a fellow named
Rob MacElroy, correct?
A. That's correct.
Q. And you had contacted MacElroy on, what, the 7th of January, or
was it the 8th?
A. I believe -- well, I believe late evening of the 7th he contacted
me, also on the 8th, and then I believe also on the 10th and 11th I
want to say.
Q. Now, MacElroy told you that he was in New York at the time that
he contacted you; is that correct?
A. That's correct.
Q. And he told you that he was there in an attempt to sell the
Flammer photographs?
MR. GELBLUM: Objection, hearsay.
THE COURT: Sustained.
Q. (BY MR. LEONARD) Was it important to you, sir, to try to
determine whether or not there was, as you described earlier in your
testimony, to have enough motivation -- you described four elements,
and one of them was motivation to fake the photograph, right?
A. Yes.
Q. Would you agree with me that making a lot of money from a
photograph would be -- could certainly provide motivation to fake
photographs?
MR. GELBLUM: Objection, argumentative, Your Honor.
Q. (BY MR. LEONARD) Would you agree with me?
MR. GELBLUM: Objection.
THE COURT: Well, you may answer.
A. That would seem like a logical motive, yes, sir.
Q. (BY MR. LEONARD) And MacElroy told you that he was attempting to
sell the photographs, correct?
A. Yes.
MR. GELBLUM: Objection, hearsay.
THE COURT: I'll sustain that.
MR. GELBLUM: Move that it be stricken.
Q. (BY MR. LEONARD) I want you to assume, sir, for purposes of your
analysis, the Flammer photographs are being rented, sir, for $12,000
a week, they're being rented to various media outlets. Does that
affect your opinion in any way, sir?
A. No, sir.
Q. Does it affect your opinion that they're being -- they're trying
to rent that evidence to various news outlets for $18,000?
MR. GELBLUM: Objection.
Q. (BY MR. LEONARD) For -- till the end of jury --
MR. GELBLUM: He's trying to get something in front of the jury that
he can't get in front of through admissible means.
MR. LEONARD: I can prove it up.
MR. GELBLUM: Objection.
MR. PETROCELLI: Objection.
THE COURT: How many of you are going to object?
MR. GELBLUM: I am.
THE COURT: Objection sustained. Mr. Leonard, you want to prove
something up, prove it up with evidence.
MR. LEONARD: May we approach?
THE COURT: No. You are not permitted to prove up matters in this
fashion.
MR. LEONARD: I'd like to approach, Your Honor.
THE COURT: No.
MR. LEONARD: I have a document I'd like to show --
THE COURT: Excuse me. I will not permit you to prove up that fact in
that fashion.
MR. LEONARD: Your Honor, you don't know what the document is.
THE COURT: You're not going to prove it up with this witness during
this examination.
MR. LEONARD: May we approach, Your Honor?
THE COURT: No. Now continue your examination.
MR. LEONARD: I'd like to ask him if this document would affect his
opinion.
MR. PETROCELLI: He said it wouldn't.
THE COURT: Continue your examination.
MR. LEONARD: Your Honor, I have nothing further based on your
ruling.
THE COURT: All right. Sit down. REDIRECT EXAMINATION BY MR. GELBLUM:

Q. Did you see any sign of alteration in negative 7-A, the one
reprinted in the Buffalo Bills Weekly?
A. No, sir, I did not.
Q. Does the fact the negative from that photograph was printed in
November, 1993, some eight months before the murders in this case,
have any affect in your opinion in terms of motivation?
A. As far as motivation goes, I would think if you were going to
alter a photograph, you would definitely want -- not want to have it
published ahead of the -- the subjective time that's in question.
Q. Mr. Leonard asked you whether you had access to original
negatives frequently before?
A. The answer was no.
Q. Okay. Does having access to the original negatives make your
determination more certain or less certain?
A. More certain.
Q. And what do continuous scratches tell you about the sheet of
negatives?
A. Well, continuous scratches -- the reason I look for scratches,
let's put it this way, the reason I look for scratches particularly
is usually only in -- for the most part, in cut negatives where we
have negatives that are cut, so I can determine that, in fact, at
one time they were contiguous -- continuously one negative. But
there may be many, many types of scratches. Some due to camera, some
due to the processor, some due to mishandling, sometimes just
placing in and out of the enlarger will cause scratches. Some of
those won't match up because they've been produced on the negative
after the actual cutting has been done. Just as long as the majority
of them have been matched up, I can be fairly confident in my own
mind this was one negative, all at one time, no one has substituted,
let's say a proportion of five images into that group. That's the
basic reason we look at the scratches.
Q. Any of those scratches in any way indicative of any alteration in
these negatives?
A. No, sir.
MR. GELBLUM: Thank you. I have nothing further. RECROSS-EXAMINATION
BY MR. LEONARD:
Q. You were asked a question by Mr. Gelblum about a photograph that
was purported to have been published. You have no idea what the
chain of custody of that negative was, do you, sir?
A. No, sir, I don't.
Q. You have no idea who had it and what they did with it, do you?
A. No, sir, I do not.
MR. LEONARD: Thank you.
MR. GELBLUM: Nothing further.
THE COURT: You may step down.
THE WITNESS: Thank you, sir.
MR. LEONARD: Your Honor, I'd like to approach.
THE COURT: Jurors, you're excused for about ten minutes. Don't talk
about the case; don't form or express any opinions.
(Jurors exit courtroom.)
THE BAILIFF: Please be quiet in the courtroom. We still are in
session.
MR. GELBLUM: Your Honor, you just want to do it here?
THE COURT: Right
(indicating to counsel table.)
(The following proceedings were held in open court outside the
presence of the jury.)
MR. PETROCELLI: On this issue is the McElroy photographs, I'm just
warning you --
MR. LEONARD: Really, Judge Petrocelli.
THE COURT: Will you stop that.
MR. LEONARD: No. He started it.
THE COURT: Counsel, you want to get in the fact that somebody's
renting these pictures out?
MR. LEONARD: Yeah.
THE COURT: Get it in. But do it by laying proper foundation. I'm not
going to let you put that before the jury based upon
cross-examination of an expert who has nothing to do with renting
the photographs. You have somebody to lay foundation for that, put
him on.
MR. LEONARD: We just got this document from MacElroy. We'll bring
him in. We'll have to bring him on Tuesday.
THE COURT: No. He's not going to come in on Tuesday.
MR. LEONARD: We just got this document. We just get these
photographs. It's -- as you know, we have been complaining all
along, and now you're going to not let me do this. They were allowed
to put the photographs before they were authenticated in front of my
expert without any notice. I can't do that with this from MacElroy
about the photographs that he's sending out all over the country. I
don't think that's fair.
MR. PETROCELLI: Are you finished? Couple things, Your Honor. They've
known about Rob MacElroy since July 1 when they took the Scull
deposition. At no time did they ever attempt to take any discovery
from him and they knew that he was marketing photographs. Secondly
--
MR. LEONARD: This --
MR. PETROCELLI: Excuse me. This witness said it makes no difference
in his analysis of the authenticity --
THE COURT: Mr. Petrocelli, it doesn't make any difference with
regard to this particular witness. It is a relevant piece of
evidence, and defense ought to have an opportunity to put it before
the jury to show motivation. What it goes to and how much weight it
carries, that's for the jury to decide.
MR. PETROCELLI: I would suggest --
THE COURT: Now, there's more than one way to skin a cat, and that
doesn't mean you have to bring in, necessarily, the person who
circulated that item.
MR. LEONARD: Someone who received it, right.
THE COURT: Why don't you use your lawyerly skills and find the way
to skin that cat.
MR. PETROCELLI: Your Honor, I just want to make an objection for the
record. I think this is collateral at this point. He's already
established from Mr. Flammer that the photographs are being sold and
--
THE COURT: Counsel --
MR. PETROCELLI: Other photographs not involving Mr. MacElroy, and if
we have to go down that route, we're going to have to call somebody
in to meet that evidence, Your Honor, and I don't want to have to --

THE COURT: Mr. Petrocelli --
MR. PETROCELLI: -- keep doing this. It has to stop someplace.
THE COURT: Yeah. I'm going to be the one that's going to stop it.
MR. PETROCELLI: I would hope that it would stop soon.
THE COURT: I'm going to permit him to offer evidence if he can
legitimately, under the Evidence Code of --
MR. LEONARD: Thank you.
THE COURT: -- this document.
MR. PETROCELLI: This afternoon?
THE COURT: Yeah.
MR. LEONARD: You're going to give me, what, three hours?
THE COURT: Mr. Leonard, you use your skills.
(Recess)
(The following proceedings were held in open court outside the
presence of the jury.)
MR. LEONARD: Can we display our thing?
THE COURT: Yes.
MR. PETROCELLI: No.
THE COURT: You got to display yours. All right. We're back in
session.
(The following proceedings were held in open court outside the
presence of the jury.)
THE COURT: Okay. For the benefit of the audience, Mr. Leonard has
been successful in finding a way of skinning the cat, and Mr.
Petrocelli and Mr. Kelly and Mr. Brewer have stipulated that the
document may be received into evidence.
MR. LEONARD: Thank you.
THE CLERK: It will be Exhibit 2406.
MR. PETROCELLI: And I want dinner tonight.
THE COURT: Okay. So when the jury comes in. Jury on its way up.
(Jurors resume their respective seats.)
MR. LEONARD: Your Honor, we'd like to publish the document in
question to the jury.
THE COURT: You may.
MR. LEONARD: That will be the McCelroy price sheet.
THE COURT: You may.
MR. LEONARD: I'd like to read --
THE COURT: Would you like to mark it?
MR. LEONARD: Oh, I'm sorry. 2406.
(The instrument herein referred to as The McElroy price sheet was
marked for identification as Defendant's Exhibit No. 2406.)
MR. PETROCELLI: We have no objection to that.
THE COURT: Thank you.
THE CLERK: It's received?
THE COURT: Received.
(The instrument previously marked as Defendants' Exhibit 2406 was
received in evidence.)
MR. LEONARD: The rates for North American use of the package of
seven Flammer photographs and information are as follows:
(Exhibit 2406 displayed on the Elmo screen.)
MR. LEONARD: Thank you, Your Honor.
(Exhibit 2406 removed from the Elmo screen.)
MR. MEDVENE: Agent Bodziak.
THE CLERK: I don't believe it was on record that Exhibit 732 has now
been received in evidence.
THE COURT: It's received as redacted.
MR. PETROCELLI: As redacted, Your Honor. Thank you.
(The instrument herein referred to as a redacted version of letter
from Nicole Brown Simpson to OJ Simpson was received into evidence
as Plaintiffs' Exhibit No. 732.)
THE CLERK: Just have a seat, sir. You have been sworn. Briefly, you
are still under her oath. Would you please state your name for the
record.
THE WITNESS: William J. Bodziak, B-o-d-z-i-a-k. WILLIAM J. BODZIAK,
called as a witness on behalf of the Plaintiffs in rebuttal, having
been previously duly sworn, was examined and testified further as
follows: DIRECT EXAMINATION BY MR. MEDVENE:
Q. Agent Bodziak, you were last here a little over a month and a
half ago --
A. That's correct.
Q. -- to reintroduce you to the jury, among other things, you're an
expert shoe comparison analyst with the FBI?
A. Yes.
Q. You've been doing that work for 20-odd years?
A. Since 1973.
Q. Now, just to get your testimony in context, you previously
testified, in your opinion, that the shoes being worn by Mr.
Simpson in the photograph taken by Mr. Scull, September 26, 1993 --
we're putting up on the easel Exhibit 2061 -- were Bruno Magli
shoes, Lorenzo style; is that correct?
A. That's correct.
(The instrument herein referred to as comparison board was marked
for identification as Plaintiffs' Exhibit No. 2061.)
Q. And previously you explained to the jury why you reached that
conclusion?
A. Yes.
Q. I want to place before you now, sir, certain exhibits -- Exhibit
395. And I ask you what that is, sir.
A. This is a size 12 Bruno Magli Lorenzo shoe.
Q. I'm going to place before you eight photographs and ask you to
look at the back of each and read the exhibit number, if you would.
And while you're looking at those and identifying them, Mr. Foster
is going to display those photos on the TV monitor for the jury.
These are photos, we'll represent to you, were photos taken by E. J.
Flammer on September 26, 1993, at the same game, or prior to the
same game where Mr. Scull's photos were taken. First, you have in
front of you what's been marked 2297; is that correct, sir?
A. Yes, it is.
Q. Could you tell the jury what that is?
A. This is a photograph of Mr. Simpson and another individual. It's
an 11-by-17-inch copy. It's what I examined in the laboratory. On
the back of it, it says Exhibit 2297, reel 2, number 4.
Q. The next exhibit, sir, is that 2298?
A. 2298. Yes. sir.
Q. What is that?
A. This is another 11-by-17-inch print depicting a close-up shot, or
a crop shot of Exhibit 2297, focusing into the shoe and leg area.
And it is from roll 28, number 4.
Q. Same shot as the 2297, only a crop shot of 2297?
A. That's correct.
Q. Would you take a look at the next photo. Is that 2299, sir?
A. Yes, it is. Exhibit 2299 is a picture of Mr. Simpson on a
football field with another individual, from roll number 1, frame 22
-- 24-
A.
Q. Is that another photo that you examined at the FBI lab?
A. Yes, it is.
Q. Next, sir, 2300.
A. 2300 is a crop shot, an enlarged shot of the feet from the same
picture, 2299, and it is from roll 1, 24-
A.
Q. The next photo in front of you, sir, is that 2301?
A. Yes. Exhibit 2301 is a picture of Mr. Simpson with another
individual on a football field, roll 1, number 27-
A. And I also examined this. An enlarged area from 2301 is
represented in the next picture, which is Exhibit 2302. That's also
from roll 1, frame 27-
A.
Q. Now, the next photo, sir, doesn't have a number in front of it.
We're going to number it next in order, which I believe is 2407.
THE CLERK: Correct.
Q. (BY MR. MEDVENE) Would you be good enough to put 2407 on the back
of it, sir.
A.
(Witness complies.)
(The instrument herein referred to as 11-by-17-inch print of five
individuals, in addition to Mr. Simpson, on a football field, Marked
roll 1, number 78-A, was marked for identification as Plaintiffs'
Exhibit No. 2407.)
MR. MEDVENE: Zoom in.
Q. (BY MR. MEDVENE) Yes, sir?
A. Exhibit 2407 is an 11-by-17-inch print of five individuals, in
addition to Mr. Simpson, on a football field. And on the back it
says roll 1, number 78-
A.
Q. And 2408, sir?
A. Do you me to mark it?
Q. Excuse me. The next photo in order would be -- next in order
would be 2408. Would you be good enough to mark that.
A.
(The witness complies.)
(The instrument herein referred to as 11-by-17-inch print of the
same frame from roll 1, number 7-A, as Exhibit 2407, but zooming in
on the legs and feet of the individuals in the center of that
photograph, including Mr. Simpson, was marked for identification as
Plaintiffs' Exhibit No. 2408.)
Q. (BY MR. MEDVENE) Can you tell us what that is?
A. Exhibit 2408 is an 11-by-17-inch print of the same frame from
roll 1, number 7-A, as Exhibit 2407, but zooming in on the legs and
feet of the individuals in the center of that photograph, including
Mr. Simpson.
Q. And did you use that, also, in the analysis that you made?
A. Yes, I did.
Q. Were you asked by me, sir, to perform an examination and an
analysis?
A. Yes, I was.
Q. What was your understanding of the task you were to perform?
A. I was requested to examine the shoes that Mr. Simpson is wearing
as depicted in the eight photographs which I have just described and
read the exhibit numbers of, and determine if they were Bruno Magli
Lorenzo shoes.
Q. Did you make that examination, sir?
A. Yes, I did.
Q. Did you form an opinion?
A. Yes, I did.
Q. What is that opinion?
A. My opinion is that the shoes depicted in those eight exhibits are
Bruno Magli Lorenzo shoes.
Q. What is the basis for your opinion, sir?
A. Do you want me to --
Q. I'd like you to --
A. Can I use this shoe to demonstrate that?
Q. I'd like you, with the Court's permission, to walk down so the
jury can more easily see, and use your judgment with regards to any
of the photos you want to use, or the shoe itself, in explaining the
bases for your opinion.
THE COURT: Didn't we go through this before?
MR. MEDVENE: We went through it, Your Honor with respect to the
Scull photograph, and that the Scull photograph was the Bruno Magli
shoe. Now we're using a different photograph, the Flammer
photograph, and going through the same analysis, Your Honor.
THE COURT: Is there some difference between the two shoes that are
in the photographs?
MR. PETROCELLI: No.
THE COURT: Then why are we going through the same motion twice?
MR. MEDVENE: We believe there is not, sir. And if Mr. Simpson's side
is willing to agree that Bruno Magli shoes are depicted in the
Flammer photos, there will be no need to go through this.
MR. LEONARD: Stipulate. MS. BLUESTEIN: Stipulate.
MR. PETROCELLI: They stipulate.
THE COURT: Okay.
MR. MEDVENE: So the defense stipulates that the shoes in the Flammer
photos are Bruno Magli Lorenzo style shoes, the same shoes that are
shown in the Scull photo as being worn by Mr. Simpson?
MR. LEONARD: Same style shoes, Your Honor.
THE COURT: Well, that's kind of an unsafe stipulation. Go ahead.
MR. MEDVENE: No choice. We'll go ahead.
Q. (BY MR. MEDVENE) Would you be good enough to come down, and let's
go through why, in your opinion, the shoes depicted in the Flammer
photos, in your opinion, are Bruno Magli Lorenzo-style shoes?
A. This photo here.
Q. Any photo you want, you can also --
A. This is fine. I can use this.
Q. Yes, sir.
A. And you're using Exhibit 395?
Q. Yes, sir.
THE COURT REPORTER: The exhibit on the Elmo is?
MR. PETROCELLI: The exhibit on the Elmo is 2408.
(Plaintiffs' Exhibit 2408 displayed on the Elmo screen.)
Q. (BY MR. MEDVENE) Go ahead, sir.
THE WITNESS: No, bigger
(indicating to Elmo). Just a little higher
(indicating to Elmo).
(Mr. Foster adjusts exhibit displayed on the Elmo screen.)
THE WITNESS: Okay. That's fine.
A. Okay. I examined the shoes depicted in the eight photographs
which I have just described, which depict shoes on a football field,
on Mr. Simpson. And using this one to demonstrate, some of the
observations I made to form my conclusion, I first observed the
characteristics of the edge profile of the sole. As I had previously
testified to, the sole has a lot of contouring, a lot of high and
low spots, and it begins with a high ridge, and then a groove, which
is a stitching groove. And then after that, there's another high
ridge. This occupies a very small area right up in this area here
(indicating). There's a high spot, then a groove where the stitching
is, then another groove. Then there's a much wider area of the shoe
which rolls out, contours out; then it goes into another groove. And
then below that is another wide area. And that's the area which
continues uninterrupted around the bottom of the shoe. In looking at
the features of this Exhibit 395 shoe, and the sole in these
photographs, these are consistent and are the same in those five
regards. Looking also at the curvature of the sole at this
particular point
(indicating), and the angle of the heel, which is trimmed over, so
you have a -- somewhat of an angle, because there's a point cut off
that heel, as opposed to the other side, which is more than what you
see. I observed these characteristics in these photographs. There's
also the contouring that you can see here again, the heel which I
had pointed out before in the Scull photographs.
(Indicating.) Looking at the upper of the shoe, you can see various
features, such as the seam which runs around the toe area. And you
can see that on Exhibit 395. I observed that, as well as the seam
here in the front portion of the area, which the lace holes go
through.
(Indicating.) You can see the lace holes here
(indicating). One of those with a light spot reflecting the liner,
that's layered under. You can see the bottom reference point of that
area and the back reference point. So you can see these features of
this area of the shoe. Based on these characteristics and the fact
that Bruno Magli made these soles -- these soles are uniquely made
for them by them exclusively for this shoe, as well as the dyes,
which cut out the various shapes and components, which were then
stitched together. The independent construction in one factory for
Bruno Magli of this upper, combined with the independent design of
this contoured sole with these features, in another factory
combined, makes this unique.
Q. (BY MR. MEDVENE) You say in another factory. You're saying the
soles were made in one factory and the tops were made in another?
A. For Bruno Magli, and then assembled together.
Q. Based on your -- you were at the factory, weren't you?
A. Yes. The upper was made at the 4C factory; the sole was made at
the Silga factory. And they were made by Bruno Magli through those
factories and assembled in the 4C factory.
Q. As part of your opinion in your investigation, did you make a
determination whether the dye used to make the upper was used in any
other shoe?
A. I was told these were not. These were specifically made -- the
soles for the bottom of the shoe and the uppers were specifically
made for that design and are no longer used.
Q. By each separate factory?
A. Yes, sir. Yes.
MR. MEDVENE: Thank you. I have nothing further.
THE COURT: Cross-examine. CROSS-EXAMINATION BY MR. P. BAKER:
Q. Good afternoon, Mr. Bodziak.
A. Good afternoon.
Q. Pleasure to see you again.
A. Pleasure to see you.
Q. Did you check my taxes when you went back there?
A. I forgot to do that. I'm sorry.
Q. Hope you forget again. You haven't been paid anything by the
plaintiffs' attorneys; is that right?
A. No, I haven't.
Q. Never submitted a bill, correct?
A. No, I haven't.
Q. Is there any standing order in the Bureau that agents are not
supposed to testify in this case?
A. I'm not aware of any.
Q. You don't know any reason why Rodger Martz wouldn't be testifying
in this case, do you?
MR. MEDVENE: Objection. Relevance; materiality; outside the scope.
THE COURT: Excuse me. The Clerk was whispering in my ear.
(The Court reviews realtime screen.)
THE COURT: Sustained.
Q. (BY MR. P. BAKER) You are friends with Gerald Richards, aren't
you?
A. I've known him since about 1971, I believe.
Q. You actually recommended that he work on this case, right?
A. Yes.
Q. You guys had lunch together today?
A. Yes, we did.
Q. Over at the Double Tree, right?
A. Yes, we did.
Q. Okay.
A. Probably like half the courtroom.
MR. PETROCELLI: Including Mr. Baker.
Q. (BY MR. P. BAKER) Now, after you came to your preliminary
conclusions during your work on the criminal case, you are aware an
investigation was conducted by the LAPD and FBI to determine whether
or not any receipts or sales slips could be found identifying OJ
Simpson as a purchaser of Bruno Magli shoes; correct?
MR. MEDVENE: Objection. Outside the scope; asked and answered, when
the agent was previously here.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) You know there was no receipt found, right?
MR. MEDVENE: Same objection. Counsel knows it's inappropriate.
THE COURT: Sustained.
Q. (BY MR. P. BAKER) Now, Mr. Bodziak, you're aware there was an
expert designated to testify as the person most knowledgeable of
Bruno Magli shoes by the plaintiff?
MR. MEDVENE: Objection. Outside the scope.
THE COURT: Sustained.
MR. MEDVENE: Lack of relevance.
Q. (BY MR. P. BAKER) You would agree, would you not, sir, that, as a
result of your testimony in the criminal case, that there's a motive
-- Strike that. You would agree, would you not, sir, that, if you
would doctor a photograph at $18,000 a pop for OJ Simpson, that
you'd probably put a Bruno Magli shoe on it, wouldn't you?
MR. MEDVENE: Objection. Outside the scope.
THE COURT: Sustained. Jury will disregard that question.
Q. (BY MR. P. BAKER) Were you ever asked do compare the shoes in the
Scull photograph to the shoes in the Flammer photograph?
A. I was never asked to do that.
Q. Were you ever asked to look at the newspaper article that
appeared in the November 30 issue of Buffalo Bills -- something.
MR. GELBLUM: Reports.
Q. (BY MR. P. BAKER) -- Buffalo Bill Reports, to determine whether
or not those were Bruno Magli shoes?
A. No, I was not.
Q. Were you ever provided with a black-and-white still of the
photograph that appears in that newspaper report?
A. No, I was not.
Q. You were never asked to determine whether or not the shoes that
appeared in either the Scull photos or the Flammer photos were size
12, correct?
A. No.
Q. That's not correct, or that's correct?
A. I was not asked specifically to do that, no.
Q. The photographs you received from the plaintiffs regarding the
Flammer photograph were given a Q designation; is that right?
A. That's correct.
Q. What's the Q stand for?
A. Question.
MR. P. BAKER: Nothing further. REDIRECT EXAMINATION BY MR.
MEDVENE:
Q. Counsel asked you about the Scull and the Flammer photos, and
whether you were asked to compare them. You've seen, of course, the
Scull photos and the Flammer photos?
A. Yes, I have.
Q. Do you have an opinion whether or not those photos have the same
characteristics?
A. They do.
MR. P. BAKER: Beyond the scope, in light of his testimony.
MR. MEDVENE: He opened it.
THE COURT: I don't think so. Overruled.
THE WITNESS: May I answer?
THE COURT: Yes, you may.
A. Yes; the characteristics would be what I have described. The
characteristics of the sole and upper, and inasmuch as both of them
are Lorenzo -- Bruno Magli Lorenzo shoes, of course, the
characteristics would be the same.
Q. (BY MR.
MR. MEDVENE) Let's step back for a moment and take a section. When
you say "characteristics," when you use that language in your
report, what that does that mean?
A. It means the characteristics that all shoes of a particular brand
and style would share.
Q. In terms of characteristics, you say they have the same
characteristics, which means what?
A. The shoes in the Scull photographs and the Flammer photographs
are Bruno Magli Lorenzo shoes, which are black.
Q. All right, sir. Next, are there specific characteristics that the
shoes share?
A. Yes, there are.
Q. Okay. Could you explain to me what you observed in that regard?
Or, let me ask it this way, just to move it along: Did you observe
any differences in the specific characteristics that you identified
in the Scull photo, from those characteristics you were able to
identify in the Flammer photos?
A. No, I didn't observe any differences, or I wouldn't have reached
the conclusion I reached.
MR. MEDVENE: All right, sir. I have nothing further. Thank you.
MR. P. BAKER: Nothing.
MR. LEONARD: Nothing further.
THE COURT: You may step down.
MR. LEONARD: Can I approach?
THE COURT: Wait a minute. Are you done?
MR. MEDVENE: Yes, sir.
THE COURT: Okay. Ladies and gentlemen, we're going to take a brief
recess. Don't talk about the case. Don't form or express any
opinion. You may step down.
(Recess.)
(Jurors resume their respective seats.)
MR. MEDVENE: If the Court please, we move in Exhibits 2407, 2408.
THE COURT: Received.
(The instrument previously marked as Plaintiffs' Exhibit 2407 was
received in evidence.)
(The instrument previously marked as Plaintiffs' Exhibit 2408 was
received in evidence.)
MR. PETROCELLI: Your Honor, we have a stipulation with the defense
that Exhibit 821 may be received. It is a video dated June 28, 1994,
about which there was some prior testimony. So there's a stipulation
to that effect.
THE COURT: All right.
(The instrument previously marked as Plaintiffs' Exhibit 821 for
identification was received in evidence.)
MR. PETROCELLI: All right. And at this point, the plaintiffs' rest
their rebuttal case.
MR. P. BAKER: The defense is going to read a stipulation to the
jury.
MR. P. BAKER: All parties stipulate that criminalist Gary Sims of
the California Department of Justice, were he to return to testify
in this trial, would testify under oath that at the request of the
prosecutors in the criminal case, he performed a presumptive blood
test on Item No. 11, a stain collected on the southern walkway of
360 North Rockingham, and that test was negative for the presence
of blood.
MR. BAKER: Your Honor, I don't know. I've been here 50 days, I'm
gone two hours --
THE COURT: Well, never turn your back.
MR. BAKER: -- and I don't understand what happened.
(Laughter.)
MR. BAKER: The defense rests, Your Honor.
THE COURT: Thank you very much. Ladies and gentlemen, that concludes
the evidence in this case. It's our plan to go over the jury
instructions, that is, the law that the Court will be giving to you
tomorrow. And then the Court will be going over those instructions
with the attorneys. And then next Monday is a legal holiday, court
holiday, and the court will be dark. Tuesday, we will commence with
closing argument. And it's anticipated by the attorneys that the
Court will be able to give you the case Thursday. Meanwhile, having
come this far, I request of you and order you to continue your
diligence and not permit yourselves to be influenced by anything
outside of this courtroom. Don't watch anything on television. Don't
listen to anything on the radio. Don't read anything in any of the
written publications. Don't go to the computer websites. Don't
permit anyone, friends, relatives, or any other persons, to attempt
to communicate with you with regards to any matter connected with
this case. Has everybody been complying with the Court's order?
JURORS: Yes.
THE COURT: Please continue to do so. We shall have you back here
Tuesday morning then, at 8:30. Have a nice long weekend.
JURORS: Thank you.
THE COURT: You're excused.
MR. PETROCELLI: They're not clear whether they have to return
tomorrow.
THE COURT: No. Tomorrow the -- The Court, that is myself, and the
attorneys, will be going over the legal issues and you will not have
to be here. So you will not be here until next Tuesday. Okay?
JURORS: All right.
THE COURT: Thank you.
JURORS: Thank you.
(Jurors exit courtroom.)
(The following proceedings were held in open court, outside the
presence of the jury.)
THE COURT: Do we have the jury instructions?
THE CLERK: We don't.
THE COURT: We don't.
MR. GELBLUM: We discussed -- Mr. Baker and I discussed earlier that
we would meet here at 9 O'clock tomorrow morning and speak this
afternoon, too, if possible.
THE COURT: All right. May I do this then. I will direct counsel to
meet and confer on jury instructions and set in different piles
those instructions that you agree on and those that you do not agree
on, and any special instructions.
MR. GELBLUM: We thought we'd be able to begin discussion with, Your
Honor, about 10 o'clock tomorrow.
THE COURT: That would be fine.
MR. BAKER: Thank you.
MR. BREWER: Thank you.
MR. PETROCELLI: Your Honor, thank you very much.
MR. KELLY: Thank you, Your Honor.
(At 3:30 P.M. an adjournment was taken until Friday, January 17, 1997 at 10 A.M.)