Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Bailey, Mr. Blasier. The People are represented by Mr. Goldberg and Mr. Darden. Good morning, counsel.
MR. SHAPIRO: Good morning, your Honor.
MR. COCHRAN: Good morning, your Honor.
THE COURT: All right. What does our schedule look like?
MR. BLASIER: Your Honor, yesterday we were told that we were going to get Dr. Weir's report yesterday afternoon or earlier I think is the way it was phrased. We still have not gotten the report. The draft that was provided to us a week or two weeks ago did not contain any number and was obviously not their final report. Mr. Neufeld talked to Dr. Weir this morning and Dr. Weir told Mr. Neufeld that the report was going to be faxed to us today, that the first section of it is 42 pages and that there is going to be an addendum, and I'm not sure when we will get the addendum. We agreed to the Thursday/Friday schedule understanding that it was very tight for us giving the reports to our experts and still have the time to review it. We still want to try and maintain that but we have to see this 42-page report and we have to see what their addendum is. So what I would suggest, I will be able to advise you later today whether we think we will still be able to go forward on Thursday.
THE COURT: Mr. Harmon, good morning. I would ask that you do everything you can to expedite the transfer of the report.
MR. HARMON: I think Mr. Clarke has talked to Mr. Neufeld since that conversation, but it is not a lot different than Mr. Blasier has told you, your Honor.
THE COURT: All right. Please let me know, because if we are going to be down with the jury for one day, I need to make arrangements to have other activities for them, et cetera, et cetera, so I need to know as soon as possible.
MR. BLASIER: As soon as I get word, I will let you know.
THE COURT: All right. And today's agenda, counsel, we are going to have Mr. Poser, I believe it is?
MR. COCHRAN: Right.
THE COURT: And then Mr. Sims again?
MR. HARMON: Yes, your Honor.
THE COURT: And we are going to conclude today at 3:00 P.M. because of a commitment that the Court has granted that one of the jurors has. All right. Good morning, Mr. Cochran.
MR. COCHRAN: Good morning. I would like to address the Poser testimony, if the Court pleases.
THE COURT: Yes, sir.
MR. COCHRAN: And in this regard Mr. Goldberg was very cooperative to make sure--before we left last night, to make sure we had all the reports regarding Mr. Sam Poser--regarding Mr. Sam Poser. And I would ask the Court, this has been in the nature like a 402 hearing regarding Mr. Poser's testimony. If he is present I would ask for him to step out for a moment, please.
THE COURT: All right. Mr. Poser, why don't you step out in the hallway, please.
(Mr. Poser exits the courtroom.)
THE COURT: All right. The record should reflect he has withdrawn from the courtroom. Mr. Cochran.
MR. COCHRAN: Thank you very kindly, your Honor. As I indicated that this would be in the nature of a 402 hearing regarding this gentleman's testimony. First of all, the Court may want to hear an offer of proof from the People, but it is my understanding from reviewing all the reports, from looking at all the receipts, there is no receipt linking Mr. Simpson as having purchased the shoes that FBI agent Bodziak talked about yesterday. This man can only tell us that he waited on Mr. Simpson in very vague terms. In fact, there is one receipt for $38.00 for some slippers. He has no information. There is no linking up of this. And the fact is, that the prejudicial effect of his testimony of bringing somebody else from Bloomingdales to talk about Mr. Simpson having shopped at some point but never having purchased these shoes is far outweighed by any probative value. So I think as officers of the Court we have an obligation to bring this to your Honor's attention as soon as possible. I appreciate that since we weren't totally aware he was going to be called last evening the Court gave us this time overnight to deal with this, so I'm prepared to argue it. Perhaps the Court would want to hear from the People. I can tell you what the summary is regarding their offer of proof, but I don't think that this offer of proof will be sufficient for his testimony. And so when we get into talking about 352 problems, I think this is it.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: I'm not sure what the basis for counsel's objection is. He said that this was prejudicial. I can certainly see the prejudicial effect of evidence that a person shops at Bloomingdales. I'm sure the jury will be far more likely to convict the Defendant as soon as they learned that he previously shopped at Bloomingdales.
MR. COCHRAN: Well, I shopped at Bloomingdales. That is not the test.
MR. GOLDBERG: But there is no prejudice whatsoever. His testimony is very simply that the Defendant shopped there, he purchased shoes there on about five occasions, he is a size 12. He does not have a specific recollection of every instance where he sold him shoes. They would not necessarily have records of instances where there were cash transactions or gift certificate transactions. And that they did sell the Lorenzo shoe. That would be the sum and substance of his testimony. It would take approximately fifteen minutes to put on. There is zero prejudice and it is probative. So I just don't understand the nature of Mr. Cochran's objection. I know that they are very, very concerned and worried about this evidence, they must have asked me about half a dozen times yesterday about the scope of this man's testimony, and I told them what it was. My representations to them yesterday and on previous days are the same, consistent with what I've told you. I understand the concern that they have, but this is relevant testimony and it clearly is not prejudicial.
MR. COCHRAN: May I respond, your Honor?
THE COURT: Certainly.
MR. COCHRAN: We are not worried. We are the same people who sat for eight days while Brian Kelberg put the Coroner on for eight days just like the evidence of Bodziak and just like this man. Your Honor, they are whistling in the wind. This is the dying grasp of the Prosecution. This is not relevant testimony. To put on this man to say that sometime in 1990 or 1991 he saw Mr. Simpson in Bloomingdales, they can never link it up to those shoes. Those are the facts. And so what I was saying, it wastes all the Court's time, it doesn't lead anywhere and it is just--it is analogous to the testimony that we elicited from Dr. Lakshmanan, that Golden made all these mistakes but he still couldn't tell us the various things, and you saw the contrast. They spent eight days on direct.
Mr. Shapiro spent, what, a half day in cross-examination. And so we are just saying to the Court, the Court wants to move this case along, this is a good example of that, and the reason why we kept asking counsel, Mr. Goldberg, and I complement him at the beginning, we asked him because we couldn't believe he wanted to put this man on, given what he has to say. And so I think now the Court understands it, we have a summary of his testimony. Listen to this, your Honor. That during the time Mr. Poser was the manager of the shoe department he met O.J. Simpson several times. Mr. Poser was asked to read the sales receipt. Mr. Poser stated just by looking at the sales receipt he was unable to tell what was purchased. Mr. Poser did not have any recall of any slippers priced at $38.00. And there is no linkage, your Honor, so they could be bring anybody in here and that doesn't add anything. And counsel says, well, if the jury hears he shopped at Bloomingdales they are likely to convict him. He hasn't been down in this trial everyday, obviously, if he thinks that. That has nothing to do with this case.
THE COURT: Well, I took that to be a facetious comment.
MR. COCHRAN: I had to respond to it because I can't be sure everything they say.
THE COURT: It was not particularly helpful.
MR. COCHRAN: I didn't think so either, but the point is, your Honor, and I think you now have the picture, I ask for an offer of proof. You now have it. How does this link up with O.J. Simpson? If they would ask us we would stipulate that he has on occasion bought a size 11, size 12, size 13, in that range. He has bought shoes in that range. They went all through yesterday to do that. I mean, that doesn't add anything. How many men in American do you think wear size 10 and a half, 11's, 12's, 12 and a half, 13's? That is not instructive.
THE COURT: Apparently ten percent of the population.
MR. COCHRAN: Isn't that just 12's ten percent, so if you add those other sizes, I think it is even larger. So that is the point, your Honor. So I'm saying this is the point where the Court has been very, very lenient with the Prosecution in allowing them to advance these various--various theories that don't lead anywhere. And so we are just saying this is an appropriate time to say that this man shouldn't be called because it doesn't add anything to where we are.
THE COURT: All right. Thank you.
MR. COCHRAN: Thank you, your Honor.
THE COURT: All right. I take this to be a 352 objection?
MR. COCHRAN: Yes.
THE COURT: Rather than actually a request for a 402, because it appears that there is nothing that I can see would bar his testimony if it is relevant. The fact that he is going to testify that he is the manager or was the manager of the shoe department at Bloomingdales gives him a certain amount of credibility as far as his expertise as to what the practices are at Bloomingdales. The fact that he has personal acquaintanceship and knowledge of the Defendant's shoe purchasing and that he has purchased a size 12 is--does have probative value. The fact that Bloomingdales was one of the forty stores here in the United States that sold this particular shoe, the Lorenzo, is of probative value. And I accept Mr. Goldberg's self-imposed time limit of fifteen minutes in getting to this.
MR. COCHRAN: Your Honor, I'm not sure--can he say he sold him a size 12?
MR. GOLDBERG: Yes.
MR. COCHRAN: May I have just a second, your Honor?
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
THE COURT: So the objection is overruled.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Defense counsel and the Defendant.)
THE COURT: All right. Mr. Cochran, are you ready to proceed?
MR. COCHRAN: Yes. We are ready to proceed. Thank you, your Honor.
MR. BAILEY: Your Honor, might I just address one last matter not relevant to what Mr. Cochran said? Just for the record, I'm flying this afternoon to Kansas City for the hearing on the subpoena that you approved or Marcus Allen and I will be back tomorrow night and I just want to make sure that there are no hair and trace witnesses contemplated today or tomorrow.
THE COURT: Mr. Darden?
MR. DARDEN: I don't think I'm in a position to say that there won't be some hair and trace.
THE COURT: Today and tomorrow?
MR. BAILEY: Today and tomorrow.
MR. DARDEN: Well, there is the problem with Bruce Weir, so I don't know if the schedule is going to somehow get jumbled. I don't expect that there will be.
THE COURT: Well, if--Mr. Bailey, you are going to be handling the hair and trace for the Defense?
MR. BAILEY: Yes.
THE COURT: All right. He does have business connected to this case in another jurisdiction, so if he is not available, we will just have to bounce around with some other witnesses.
MR. DARDEN: Of course.
THE COURT: All right.
MR. BAILEY: Thank you.
THE COURT: Deputy Magnera, let's have the jurors, please.
MR. GOLDBERG: Your Honor, just to--
THE COURT: Mr. Goldberg, why don't you retrieve Mr. Poser.
MR. GOLDBERG: And two other housekeeping issues. Mr. Harmon has said that he would like some time to set up prior to recalling Mr. Sims to the stand, if we could take a brief recess.
THE COURT: I assume we will have to recycle to a different set of exhibits.
MR. GOLDBERG: Yeah, and I have discussed two stipulations with Mr. Bailey; one relating to the Reebok shoes being the ones that were the subject of Detective Lange's testimony, and one relating to the crime scene photographs that were referred to by Mr. Bodziak yesterday of shoeprints having been taken on the 13th of June, which he has agreed to. So I would like to offer those at the chose of Mr. Poser's testimony.
THE COURT: Thank you.
MR. BAILEY: The only thing that rankles about that is having offered that stipulation, I attempted to ask the detective if he knew that those shoes came from Mr. Simpson voluntarily on the 13th and you sustained the objection.
THE COURT: Well, nobody told me there was going to be a stipulation, counsel. Now that I know--
MR. GOLDBERG: I think actually that testimony could come in through hearsay in some form.
THE COURT: Deputy Magnera, thank you.
MR. BLASIER: Your Honor, may we have some notice as to who we will have tomorrow?
MR. GOLDBERG: May I be excused to get Mr. Poser.
THE COURT: Yes, please. I assume a lot depends on what we are going to do with the other hearing.
MR. BLASIER: I'm concerned--
THE COURT: I'm just as interested as you are as to what is coming next.
MR. BLASIER: Okay. I've been told that Agent Marks is not going to be here until next week and I just want to make sure that that hasn't changed.
THE COURT: All right.
MR. DARDEN: That hasn't changed.
THE COURT: All right.
(Brief pause.)
MR. DARDEN: I see Mr. Cochran has the bag. If the bag contains the original crime scene gloves, I would ask if it is going to be opened, that it be opened on the record.
MR. COCHRAN: No. This is the tennis shoes, Mr. Darden.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: And Mr. Goldberg, you may call the People's next witness.
MR. GOLDBERG: Thank you. People call Sam Poser to the stand.
THE COURT: Mr. Poser, come forward, please. Mrs. Robertson.
Samuel Mark Poser, called as a witness by the People, was sworn and testified as follows:
THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this Court, shall be the truth, the whole truth and nothing but the truth, so help you God.
MR. Poser: I do.
THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.
MR. Poser: My name is Samuel Mark Poser.
THE CLERK: The spelling, please.
MR. Poser: Samuel--
THE COURT: Would you pull the microphone closer, please.
MR. Poser: S-A-M-U-E-L M-A-R-K P-O-S-E-R.
THE CLERK: Thank you.
MR. GOLDBERG: Good morning.
DIRECT EXAMINATION BY MR. GOLDBERG
MR. GOLDBERG: Good morning, Mr. Poser.
MR. Poser: Good morning.
MR. GOLDBERG: What is your occupation, sir?
MR. Poser: Associate buyer for mens shoes, Bloomingdales.
MR. GOLDBERG: That is Bloomingdales in New York?
MR. Poser: Yes.
MR. GOLDBERG: And how long have you been with Bloomingdales?
MR. Poser: Almost five years.
MR. GOLDBERG: When did you start?
MR. Poser: August of 1990.
MR. GOLDBERG: And shortly after you started, let's say, around the winter season in 1990, did you see a Mr. Orenthal Simpson come into the store in the New York Bloomingdales?
MR. Poser: Yes.
MR. GOLDBERG: When you first saw him, did you recognize him?
MR. Poser: Yes, I did.
MR. GOLDBERG: As being Mr. Simpson?
MR. Poser: Yes, I did.
MR. GOLDBERG: And do you see him in court today?
MR. Poser: Yes, I do.
MR. GOLDBERG: Can you point him out for us and tell us what he is wearing today?
MR. Poser: He is wearing a gray suit and a brown and black tie and a white shirt.
THE COURT: Indicating the Defendant.
MR. GOLDBERG: Now, sir, when you first saw Mr. Simpson, were you working in the shoe department?
MR. Poser: Yes, I was.
MR. GOLDBERG: And on that particular occasion and thereafter did you sell shoes to the Defendant?
MR. Poser: Umm, yes, I did.
MR. GOLDBERG: And approximately how many occasions in total would you say you sold shoes to him?
MR. Poser: Four or five times.
MR. GOLDBERG: Now, of the four or five times that you sold shoes, are there any occasions that you remember in terms of specifically what you sold?
MR. Poser: Umm, only--not particularly to the shoe level, to the individual item.
MR. GOLDBERG: Okay. Is there any instances where you have some recollection what you sold?
MR. Poser: Yes, there is.
MR. GOLDBERG: Can you tell us what that instance was?
MR. Poser: Yes. He was in the store--
THE COURT: Mr. Poser, can you pull the microphone closer.
MR. Poser: Certainly. At one time he came in, he was about to do a broadcast for a bills game in buffalo and he needed a boot to wear for the bills game and I remember selling that--assisting in the sale, selling it to him.
MR. GOLDBERG: Okay. And other than that, do you have any other specific recollections in terms of the types of shoes?
MR. Poser: Umm, he bought--he liked to buy dress casual shoes, not shoes to wear with jeans and so on.
MR. GOLDBERG: Even though--well, did you recognize that he had some type of celebrity status when you first started selling to him?
MR. Poser: Yes, I did.
MR. GOLDBERG: Even though he had some type of celebrity status, did you--considering that he had that status, did you somehow also memorize the occasions when you sold him shoes and what you sold him?
MR. Poser: No.
MR. GOLDBERG: All right. Now, during the time period that you had sold shoes to Mr. Simpson, was Bloomingdales one of the forty stores that sold Bruno Magli Lorenzo shoes?
MR. Poser: Yes, we did.
MR. GOLDBERG: And I would like to show you what we've marked as People's 375 for identification. And maybe you could take the shoes out of there and tell us if one of those is Lorenzo.
MR. Poser: This is the Lorenzo, the boot.
MR. GOLDBERG: He is indicating what has previously been referred to as the size 12 semi and demi boot, your Honor.
MR. Poser: Yes.
MR. GOLDBERG: And what colors did Bloomingdales carry those in?
MR. Poser: Black, brown and olive.
MR. GOLDBERG: Do you remember whether or not you sold those shoes to the Defendant?
MR. Poser: No, I do not.
MR. GOLDBERG: You don't have a specific recollection one way or the other?
MR. Poser: No.
MR. GOLDBERG: Now, what price range did those shoes sell in?
MR. Poser: I remember them to be under $200.00.
MR. GOLDBERG: Okay. And how would you classify that? Is that an athletic shoe, a dress casual shoe? What type of a shoe?
MR. Poser: It is address casual boot.
MR. GOLDBERG: Okay. And if a person at Bloomingdales purchases items at the store with cash, is a record made of what they purchased?
MR. Poser: A record of the purchase is made, but not particular to the person who purchased it.
MR. GOLDBERG: Okay. So there would be no record of a particular individual purchasing a particular item?
MR. Poser: Correct.
MR. GOLDBERG: Now, if a person--well, does Bloomingdales also have gift certificates?
MR. Poser: Yes, we do.
MR. GOLDBERG: And did they back in the time frame that you were waiting on Mr. Simpson?
MR. Poser: Yes, we did.
MR. GOLDBERG: And if a person makes a gift certificate purchase, is there a record of specifically what they purchased?
MR. Poser: No.
MR. GOLDBERG: And what time they purchased?
MR. Poser: No, no.
MR. GOLDBERG: When you sold shoes to the Defendant, did you ring up the sales?
MR. Poser: No, I did not.
MR. GOLDBERG: And when was the last time, if you can give us an estimate, that you would have sold shoes to the Defendant?
MR. Poser: I believe it was--I believe it was early `92, but that is--you know, in the wintertime of `92, I believe.
MR. GOLDBERG: And over this period of time that you say that the shoes were generally dress casual shoes?
MR. Poser: Yes.
MR. GOLDBERG: What size did the Defendant take?
MR. Poser: Size 12.
MR. GOLDBERG: Thank you. I have nothing further.
THE COURT: Mr. Bailey.
CROSS-EXAMINATION BY MR. BAILEY
MR. BAILEY: Mr. Poser, how many times have you been questioned about this same subject matter prior to today?
MR. Poser: About five, I guess.
MR. BAILEY: Five times. By whom?
MR. Poser: By some detectives.
MR. BAILEY: From the LAPD?
MR. Poser: From the LAPD, somebody from the FBI and from the Defense.
MR. BAILEY: All right. And has the subject matter always been the Lorenzo Bruno Magli shoes?
MR. Poser: No.
MR. BAILEY: All right. Any other kind of shoes been sought, if you know?
MR. GOLDBERG: Not relevant.
THE COURT: Overruled.
MR. Poser: Not--not--not at the beginning, not specifically.
MR. BAILEY: Okay. What kind of records does Bloomingdales keep when customers who charge on credit cards purchase boots?
MR. Poser: Umm, we have a journal on the register that shows what--who sold what to whom, to what credit card.
MR. BAILEY: Okay.
MR. Poser: As well as the receipt, a copy of the receipt that the customer signs.
MR. BAILEY: Do you have a salesman's code so that a salesman will get credit?
MR. Poser: Yes.
MR. BAILEY: And if you sold shoes to Mr. Simpson, would you assign a code to a salesman rather than yourself?
MR. Poser: Normally I was working in conjunction with a salesperson so that salesperson I was working with would get credit for the sale.
MR. BAILEY: Their code would be on the slip; not yours?
MR. Poser: Yes, correct.
MR. BAILEY: What other information was recorded?
MR. Poser: The date, the amount of each shoe, any discount that may have been taken.
MR. BAILEY: I'm sorry?
MR. Poser: The amount--the retail cost of each shoe and any discount that may have been taken, the tax, the total purchase--what the total purchase is and the signature of the person in a charge transaction.
MR. BAILEY: Is there a code on the slip that will describe the item purchased?
MR. Poser: This is a--yes, there is--there are two--there are two types of codes. There is a UPC code, which is--
MR. BAILEY: UPC?
MR. Poser: Universal products code.
MR. BAILEY: Yes.
MR. Poser: Which was used at that time sometimes and there was a department, class, vendor and mark style code that described what the merchandise was as well.
MR. BAILEY: All right. Now, did you, in cooperation with the detectives, search the records of Bloomingdales looking for any evidence of a sale such as you have been asked?
MR. Poser: Personally I did no searching.
MR. BAILEY: Have you seen any records that were retrieved?
MR. Poser: Yes.
MR. BAILEY: As a result of that?
MR. Poser: Yes.
MR. BAILEY: Have you examined them?
MR. Poser: Yes.
MR. BAILEY: And have you found various purchases of shoes?
MR. Poser: Yes.
MR. BAILEY: None of which were a Lorenzo Bruno Maglis, right?
MR. Poser: Honestly I didn't know the numbers off the top of my head.
MR. BAILEY: I know.
MR. Poser: So I couldn't say to the specifics of that.
MR. BAILEY: Have you ever been questioned about a sales slip that showed the code for this particular shoe or seen one?
MR. Poser: No.
MR. GOLDBERG: Not relevant, calling for hearsay.
MR. Poser: That I know of.
THE COURT: Overruled.
MR. BAILEY: Over what period of time was this search made, do you know?
MR. Poser: I was--I was called about--I guess about six months ago I got my first call, about, so from there to present, regarding this case.
MR. BAILEY: On one occasion were you questioned about the sale of the boots to Mr. Simpson in connection with his duties in buffalo?
MR. Poser: I guess when I was first asked I mentioned that that was the one thing that I remembered specifically.
MR. BAILEY: Right, that he had some job in buffalo and he was purchasing some boots because he would be working outdoors, right?
MR. Poser: Correct.
MR. BAILEY: Have you ever been to buffalo?
MR. Poser: Umm, no, but I know it is cold.
MR. BAILEY: In the wintertime?
MR. Poser: No.
MR. BAILEY: Have you--okay.
MR. Poser: No, I have not.
MR. BAILEY: But did you understand that the climatic conditions were expected to be adverse when he bought these boots?
MR. Poser: Yes, I did.
MR. BAILEY: Were you shown a Lorenzo Bruno Magli black in color by Detective Antonio of the LAPD?
MR. Poser: Yes, I was.
MR. BAILEY: And did he ask you whether or not that was similar in type to what you had sold Mr. Simpson?
MR. Poser: Did he ask me that?
MR. BAILEY: Yes.
MR. Poser: Yes, he did.
MR. BAILEY: And did you not tell him that it was not?
MR. GOLDBERG: Well, it calls for hearsay and it is not--
THE COURT: Sustained. Rephrase the question. Without the statement you can ask him whether or not he sold that boot.
MR. BAILEY: All right.
MR. BAILEY: Did he ask you whether or not the boot that you had told him about was similar to the shoe he was showing you?
MR. Poser: Yes, he did.
MR. BAILEY: Okay. And did you tell him, no, it was not?
MR. Poser: I said I did not--
MR. GOLDBERG: Still calls for hearsay.
THE COURT: Overruled.
MR. Poser: I told him that I did not recall selling the Lorenzo boot to Mr. Simpson. I also said that for the use in buffalo, I probably would not have sold Mr. Simpson the Lorenzo boot for the climatic conditions that were there.
MR. BAILEY: Exactly. It would not do well in slush, snow and mud, would it?
MR. Poser: Correct.
MR. BAILEY: Now, you mentioned the size of Mr. Simpson's shoes. Do you know if he always bought the same size or whether it varied from manufacturer to manufacturer?
MR. Poser: As far as I know he bought the same--he bought the same size. I remember it to be a 12.
MR. BAILEY: On how many different occasions did you fit him with new shoes?
MR. Poser: About four or five as he came in.
MR. BAILEY: All right. May I have a minute?
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Defense counsel and the Defendant.)
MR. BAILEY: May I approach the witness, your Honor?
THE COURT: You may.
MR. BAILEY: Mr. Poser, would you examine these tennis shoes, please, and assume that they are shoes belonging to Mr. O.J. Simpson.
THE COURT: All right. Mr. Bailey, this is People's exhibit which?
MR. BAILEY: 384 it looks like from the tag, your Honor.
THE COURT: All right. These are the Reeboks?
MR. BAILEY: These are Reeboks, your Honor.
THE COURT: All right.
MR. BAILEY: Can you tell me what size those shoes are?
MR. Poser: Those are size 12, U.S.
MR. BAILEY: 12 and a half perhaps?
MR. Poser: It says size 12 USA.
MR. BAILEY: And European size?
MR. Poser: European size 46 and a half.
MR. BAILEY: Do you see anything about the width?
MR. Poser: Not--no.
MR. BAILEY: Okay. You can set those down.
MR. Poser: (Witness complies.)
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Defense counsel and the Defendant.)
MR. BAILEY: No further questions, your Honor.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Just briefly.
REDIRECT EXAMINATION BY MR. GOLDBERG
MR. GOLDBERG: Sir, you were asked whether you were shown some documents from Bloomingdales constituting records of shoe purchases?
MR. Poser: Yes.
MR. GOLDBERG: Do you recall that? How many were you shown, if you recall?
MR. Poser: I believe three.
MR. GOLDBERG: And was one of them for women's shoes?
MR. Poser: One of them I didn't recognize the numbers on.
MR. GOLDBERG: If we--if I approached and showed you three documents, might that refresh your recollection?
MR. Poser: Yes, it would.
THE COURT: Mr. Poser, you are going to have to keep your voice up. Excuse me. Excuse me. Would you pull the microphone a little closer to you and speak directly into it.
MR. Poser: Sure. Sorry about that.
THE COURT: Proceed.
MR. GOLDBERG: Sorry, your Honor.
THE COURT: All right.
MR. GOLDBERG: The numbers are 1540, 1509 and 1529 from discovery.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Sir, can you take a look at these and see whether these are the receipts that you saw?
MR. Poser: (Witness complies.) Yes, these are.
MR. GOLDBERG: And was one of those for women's shoes?
MR. Poser: One of them is not for men's shoes. I assume this is the one.
MR. GOLDBERG: Okay. So if you sold shoes to the Defendant on four or five occasions, would that seem to indicate that at least, insofar as the records you've seen, we do not have a record for each of those occasions?
MR. Poser: Correct.
MR. GOLDBERG: Now, if you had sold the Defendant--if you had--if the Defendant had wanted to purchase Bruno Magli shoes from you, the Lorenzo style, would you have sold him size 12 shoes?
MR. Poser: Yes.
MR. GOLDBERG: And he took size 12 in every shoe that you sold?
MR. Poser: As I recall, yes.
MR. GOLDBERG: Okay. And was it your business to know someone's shoe size when you were selling them shoes?
MR. Poser: Definitely, yes.
MR. GOLDBERG: Thank you. Thank you. I have nothing further.
(Discussion held off the record between Defense counsel.)
MR. BAILEY: Nothing further, your Honor.
THE COURT: All right. Mr. Poser, thank you very much, sir. You are excused.
MR. Poser: Thank you.
MR. GOLDBERG: Your Honor, at this time I wanted to offer two stipulations, if I might.
THE COURT: Yes.
MR. GOLDBERG: Counsel, will you stipulate that the Reebok tennis shoes that have been marked as People's 384 for identification are the same shoes that were the subject of Detective Lange's testimony that were received on June the 13th of last year?
MR. BAILEY: Yes, that is fine.
THE COURT: All right.
MR. GOLDBERG: And will you further stipulate that as to the photographs that have been marked as People's 388 through 395, depicting shoeprints that were discussed by Mr. Bodziak yesterday, that those photographs were taken at the Bundy location also on the 13th of June?
MR. BAILEY: That's correct, your Honor.
THE COURT: All right. Ladies and gentlemen, as we instructed you earlier, a stipulation is an agreement between the attorneys as to the facts of the case and you are to assume the agreed upon fact to be true for the purpose of this case. All right. People's next witness. Is this Mr. Sims again?
MR. HARMON: Yes, your Honor.
THE COURT: All right. Ladies and gentlemen, we are going to need to recycle some of the exhibits. I'm going to ask you to step back into the jury room. This will take us about five or ten minutes to reset up.
(Brief pause.)
THE COURT: All right. We will stand in recess for ten minutes.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All parties are again present. Mr. Harmon, have we gotten set up?
MR. HARMON: Yes, your Honor. And I just want to explain the order I will do things. We are going to go through some new Bronco results, some new sock results and some new Bundy results, and then we'll take all the boards down. And I have eight autorads. I'm going to show three of them on the elmo and capture three of those and then when we are done with I will have all of them marked and then we've got the big light box back in the hallway.
THE COURT: The monster?
MR. HARMON: The monster, so I want to put all eight of them up there and afford the jury an opportunity to review them and then we will be done.
THE COURT: Let me ask Mr. Fairtlough to pull the Bronco easel back, because it blocks the view of juror no. 7. The witness on the witness stand cannot be seen by juror no. 7, so why don't you take it down. Let's bring the jurors in and then you can bring it back up.
MR. SCHECK: Your Honor, I do--to be frank, I don't understand why we need the monster. There is--we are more than willing to stipulate that the bands align. You can show them on the elmo. I don't think that there is any reason to go through that again, particularly since these are cumulative results on material that we have already been over, so I think that there reaches a point where there is more prejudice here than probative value in terms of the number of times that you can show the same material again and again to the jury in an effort to make it seem like it is more than it is.
THE COURT: Mr. Harmon.
MR. HARMON: It may be cumulative in terms of the overwhelming amount of DNA evidence that we've presented. The only accumulation that we have seen is--and we have PCR results from three of these four stains. Now we have an additional PCR result on one of the stains, one of the stains there was no testing on and now we have an eight-probe match showing Mr. Simpson's blood on the back gate and Mr. Simpson's blood on sock number A. The jury has not seen this before.
MR. SCHECK: That is not my point. My point is simply that it should be enough to show the autorad on the elmo of material that we've already seen autorads on. I'm not objecting that they can put in more data on the same stains. All I'm saying, it seems to me plainly cumulative to show the same exhibit again and again and have this whole parade of people looking at the autorad again. It seems to me they can show it on the elmo and put it in evidence.
THE COURT: All right. Let see how it develops.
MR. HARMON: I would just like to point out I'm only going to show three on the elmo. I could show all eight and it would take a lot longer than I think putting the big light box up.
THE COURT: All right. We will probably spend more time arguing about it than looking at it.
MR. HARMON: We already have, I think.
THE COURT: I think so, too. Mr. Harmon, you assure me you can present all of this in one hour, correct?
MR. HARMON: Yes.
THE COURT: All right. You've got an hour. All right. Deputy Magnera, let's have the jurors, please.
(Brief pause.)
THE COURT: And madam reporter, you can go to noon?
REPORTER OLSON: Yes.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. And Mr. Harmon is now representing the People as to this phase. Mr. Harmon, you may call or recall your next witness.
MR. HARMON: Good morning, ladies and gentlemen.
THE JURY: Good morning.
MR. HARMON: The People call Mr. Sims, Gary Sims.
THE COURT: My recollection is that Mr. Sims was excused subject to recall; is that correct?
MR. HARMON: Yes, your Honor.
THE COURT: All right. Mr. Sims, would you resume the witness stand.
Gary Sims, having been previously sworn, resumed the stand and testified further as follows:
MR. SCHECK: Your Honor, if I--if they are going to be using that, may I walk over?
THE COURT: Yes, you may. All right. Good morning, Mr. Sims.
MR. SIMS: Good morning, your Honor.
THE COURT: Mr. Sims, sir, you are reminded that you are still under oath. And Mr. Harmon, you may commence with your reopened direct examination as to this witness.
MR. HARMON: Thank you, your Honor.
DIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Mr. Sims, we have a few additional results that were not available the last time you testified?
MR. SIMS: Yes.
MR. HARMON: Okay. And just to categorize those results, there are two results from the Bronco?
MR. SIMS: Yes.
MR. HARMON: And one result from one of the socks?
MR. SIMS: Yes.
MR. HARMON: And one result from the rear gate at Bundy, 117?
MR. SIMS: Yes.
MR. HARMON: Okay. Let's just go in numerical order starting with the Bronco. Did your laboratory perform PCR testing on LAPD item no. 25, which was removed from the driver's side carpet of the Bronco?
MR. SIMS: Yes. A D1S80 PCR result was performed by Renee Montgomery.
MR. HARMON: Okay. What result was obtained from stain no. 25 on the driver's side carpet of the Bronco?
MR. SIMS: The D1S80 type was 24, 25.
MR. HARMON: And is that type consistent with Mr. Simpson?
MR. SIMS: Yes.
MR. HARMON: Is it inconsistent with Nicole Brown?
MR. SIMS: Yes.
MR. HARMON: Is it inconsistent with Ronald Goldman?
MR. SIMS: Yes.
MR. HARMON: Was testing also performed on LAPD item no. 26 from the driver's side floor mat?
MR. SIMS: Yes.
MR. HARMON: And what sort of test was performed on that sample?
MR. SIMS: Again that was a D1S80 test.
MR. HARMON: And what was the result?
MR. SIMS: The type was 24, 25.
MR. HARMON: Is that consistent with Mr. Simpson?
MR. SIMS: Yes.
MR. HARMON: Is that inconsistent with Mr. Goldman?
MR. SIMS: Yes.
MR. HARMON: And inconsistent with Nicole Brown?
MR. SIMS: Yes.
MR. HARMON: Could you step up to the board here, the Bronco exhibit or result board, rather, no. 260 and let's start with no. 25. I made some patches here. Did you assign a DOJ DNA number to LAPD item no. 25?
MR. SIMS: Yes. That was assigned DNA no. 39.
MR. HARMON: Okay. May the record reflect, your Honor, I'm going to put a patch in that blank column reflecting DOJ DNA 39.
MR. HARMON: Now, there has previously been testimony from Collin Yamauchi that he performed DQ-Alpha testing and produced the result 1.1, 1.2.
MR. SIMS: That is my understanding.
MR. HARMON: Is that consistent with Mr. Simpson's type as well?
MR. SIMS: Yes, it is.
MR. HARMON: May the record reflect that I have another patch that reflects both the DQ-Alpha and the D1S80 results?
THE COURT: Yes.
MR. HARMON: Thank you, your Honor.
MR. HARMON: What I would like you to do, Mr. Sims, you've got that black marker, I would like you in the lower portion of the "Frequency" column, would you please write in the D1S80 only frequency for stain no. 25 or your no. 39?
MR. SIMS: In the lower portion of the box?
MR. HARMON: Yes, just the lower--could you put D1S80 and then what the frequency range would be for the type 24, 25.
MR. SIMS: Yes. (Witness complies.)
MR. HARMON: So the range is from one in 29 and what group would the one in 29 reflect the frequency of?
MR. SIMS: That is the Caucasian data.
MR. HARMON: And then what does the one in 48 reflect?
MR. SIMS: That is the African American data.
MR. HARMON: And is there another group in between there somewhere in the frequency range?
MR. SIMS: Yes. Between those would be the Hispanic data.
MR. HARMON: Okay. What is the frequency in the Hispanic population?
MR. SIMS: One in 36.
MR. HARMON: Your Honor, we have attached a patch. Could we move that down, Mr. Fairtlough, that reflects LAPD 26. May the record reflect we have just taped it onto the top of People's exhibit no. 260.
THE COURT: Yes.
MR. HARMON: Mr. Sims--and that is your DOJ DNA no. 40, LAPD item 26 from the floor mat driver's side?
MR. SIMS: Yes.
MR. HARMON: And the patch reflects the D1S80 type 24, 25?
MR. SIMS: Yes.
MR. HARMON: Could you write in the frequency for the D1S80 type for the result that you've obtained which is consistent with Mr. Simpson.
MR. SIMS: Okay. (Witness complies.)
MR. HARMON: Okay.
MR. SIMS: It is the same.
MR. HARMON: One in 29 to one in 48?
MR. SIMS: Yes.
MR. HARMON: And reflecting the same groups that are reflected in the frequencies for 25?
MR. SIMS: Yes.
MR. HARMON: Okay. Could you we move on to the sock photo board and sock result board. The sock result board is 262 and the sock photo board is 262-A.
(Brief pause.)
MR. HARMON: Now, Mr. Sims, what sort of testing have you performed on sock 42 or sock a which you've designated for stain 42A-3? What kind of test have you performed since you were here last?
MR. SIMS: The tests that were completed--and actually these were begun in February, but the RFLP process takes several weeks because of the low amount of DNA on this particular sample that was applied to our gel and we tested it for the restriction fragment length polymorphism results as distinguished from the PCR test that we talked about, such as the PCR tests again under DQ-Alpha and D1S80. These are the RFLP tests now that we performed.
MR. HARMON: Okay. And when you began those tests did you already know what the PCR results were on the various stains on those socks?
MR. SIMS: Yes, I did.
MR. HARMON: Did you also know how much DNA was in those stains?
MR. SIMS: Yes, I did.
MR. HARMON: And which stain did you subject to the RFLP process?
MR. SIMS: That was stain A-3.
MR. HARMON: Okay. Could you point out that--where that stain was located on exhibit 262-A?
MR. SIMS: A-3 is--is near the top, toward the top portion of the sock designated A. You notice that it is on the same side as the cut-out that we did previously--the previous RFLP on, which was A-1 stain, so now this is the A-3 stain up near the top, (Indicating).
MR. HARMON: So A-1 is the stain that you produced RFLP results which show the consistency with Nicole Brown?
MR. SIMS: Yes.
MR. HARMON: Okay. How many different probes--or strike that. What samples did you have during this RFLP run? What other samples did you use during the same run?
MR. SIMS: Yes. Because I already knew what the PCR tests were, I ran three fix samples on that particular RFLP gel. One was the sock 42A-3 stain, another was Mr. Simpson's reference sample for side-by-side comparison. And then finally I ran LAPD no. 117, which is our DNA no. 49 which was collected from the rear gate at the Bundy crime scene.
MR. HARMON: And why didn't you include Nicole Brown and Ron Goldman in those RFLP tests?
MR. SIMS: Because they had already been eliminated by the PCR results.
MR. HARMON: Okay. How many different probes were you able to submit 42A-3 to when you conducted the RFLP test?
MR. SIMS: I have data on eight probes.
MR. HARMON: Would you--strike that. Did those probes match Mr. Simpson's known reference type?
MR. SIMS: Yes, they did.
MR. HARMON: All eight of them?
MR. SIMS: Yes, they did.
MR. HARMON: And we will show them to the jury in a little bit, but would you please describe the frequency estimate for the match from among the RFLP probes that you tested 42A-3 against?
MR. SIMS: Yes. The actual loci that I tested, there were eight loci. Of these I used population data from six of the loci; specifically D1S7, D2S44, D4S139, D52110, D10S28 and D17579 and the results were as follows: The profile detected in this stain occurs in approximately one in 57 billion African Americans, one in 150 billion Caucasians and one in a hundred billion Hispanics, indicating that among randomly chosen individuals this RFLP profile is a rare event, and again, this is for unrelated individuals.
MR. HARMON: And this is an estimate that is derived from only six of the eight probes?
MR. SIMS: Yes.
MR. HARMON: And why don't you have additional information on the other two probes?
MR. SIMS: For the complete set of data that we routinely use in our laboratory, we don't have population data for the additional probes.
MR. HARMON: Your Honor, may the record reflect I'm going to put a patch in the RFLP column showing eight probes?
THE COURT: Yes.
(Brief pause.)
MR. HARMON: Now, Mr. Simpson, you have previously testified about a frequency estimate derived from the DQ-Alpha and D1S80 data. Is that still a valid estimate, at least as far as those tests are concerned?
MR. SIMS: Yes.
MR. HARMON: What I would like to do is put a magnetic--blank magnetic cover over the PCR frequency data for 42A-3, and if you will, Mr. Sims, as you have in the other stains, would you please describe the more common to the least common and write them in on exhibit 262.
MR. SIMS: Okay. For the RFLP data the range was from one in 57 billion to one in 150 billion.
MR. HARMON: Okay. Let's move on to the Bundy rear gate stain. That was run on the same set of RFLP tests that 42A-3 was done; is that correct?
MR. SIMS: That's correct. It was on the same gel.
(Brief pause.)
MR. HARMON: Did you obtain a similar number of RFLP matches as you did--with 117 as you did with 42A-3?
MR. SIMS: Yes.
MR. HARMON: Eight probes?
MR. SIMS: Yes.
MR. HARMON: Your Honor, may the record reflect I have got an 8-probe patch that I'm going to place in the RFLP column for--on exhibit 259?
THE COURT: Yes, thank you.
MR. HARMON: For 117.
(Brief pause.)
MR. HARMON: And I've got a similar magnetic blank patch that I'm going to place over the PCR data.
MR. HARMON: You previously provided DQ-Alpha and D1S80 frequency information for the PCR testing that you did on 117; is that correct?
MR. SIMS: Yes.
MR. HARMON: And that data is still valid as it relates to the tests--the PCR tests that you performed; is that correct?
MR. SIMS: That's correct.
MR. HARMON: And what frequency estimate did you produce for the eight-probe match on 117 to Mr. Simpson's known reference sample?
MR. SIMS: These results are the same as what we obtained from the sock; namely, one in 57 billion African Americans, one in 150 billion Caucasians and one in a hundred billion Hispanics, again using the six loci there, could you write the frequency limit on that blank magnetic patch that is on exhibit 259.
MR. SIMS: Okay. (Witness complies.)
MR. HARMON: Okay, Mr. Sims. Mr. Fairtlough, could I get the boards down and I would like to have marked as People's 400 for identification a set of eight autorads and I will describe--I've got them in a certain order here. They are labeled A-30. May that be 400-A; A-31, B; A-32, C; A-36, D; A-29, E; A-33, F; A-34, G; and A-35, H, your Honor.
(Peo's 400-A thru 400-H for id = autorads)
MR. HARMON: At this point I would like to put on the elmo autorad A-30 which we have just had marked as 400-A for identification.
MR. HARMON: Mr. Sims, I'm going to ask you to come down here and use our point maker. Just generally speaking, though, before I ask you to show the jury how you have these things aligned, when did you actually begin the RFLP process on this set of stains that included sock A-3 and 117 and Mr. Simpson's reference sample?
MR. SIMS: That was in February.
MR. HARMON: And when did you--actually, have tests continued even beyond when you left Berkeley?
MR. SIMS: Yes. We--we at this point have the eight probes. We have one additional that has not been sized, but it came off just recently over the weekend and there is another one ongoing now.
MR. HARMON: Okay. About how much DNA did you use, for example, with sock stain A-3 or your 42A-3?
MR. SIMS: It was approximately a hundred nanograms.
MR. HARMON: And how about with respect to 117, the rear gate stain? About how much DNA did you use?
MR. SIMS: As I recall, that was a little less. It was about 88 nanograms was the estimate.
MR. HARMON: Why don't we give you the point maker here. If you would, just help us get oriented on--from left to right, just so the jury can appreciate what they are looking at.
MR. SIMS: Okay. The--do I need to--I will go through this briefly because I remember we went through this last time. These are the ladders, what we call the ladders of the molecular size standard where you see several bands in particular lanes, so that would be here in lane 1, 4, 6, 8 and 10. Then as far as the sample lanes, we have in lane 2, this is that K562 sample. This is the national standard that is run as a control on everyone of our RFLP autorads. This third lane has our quality control sample. Again, this is the one that is unknown to me at the time of the analysis and I go ahead and do my sizing and submit the data to see whether or not I got the correct answer on that particular sample. Then skipping over here to lane 5, this is the lane in which we have the sock stain designated A-3, then another ladder, then we skip over here to Mr. Simpson, the Defendant's reference sample, his known blood sample in this lane, (Indicating). Another ladder and then in this next to the last lane we have the bloodstain no. 117 from the rear gate. And then we finally finish it off with another ladder sample.
MR. HARMON: Okay. Why don't we just mark the three samples, Mr. Simpson's sample, the sock sample and the rear gate sample, and this is the only one we will do it on, just so we can capture exactly what we have described. Could you use some color?
MR. SIMS: Would you like me to mark the bands?
MR. HARMON: Yeah, the bands.
MR. SIMS: Okay. (Witness complies.)
MR. HARMON: You are marking the sock with some pink?
MR. SIMS: Yes, the sock is marked with pink. The Defendant's reference sample bands I will mark with the green.
MR. HARMON: Okay. Then what color for 117?
MR. SIMS: I will use blue for that.
MR. HARMON: Okay. Can we capture that? May that be 400-A1, your Honor?
THE COURT: 400-A(1).
(Peo's 400-A(1) for id = computer image)
MR. HARMON: Can we place 400-B on the elmo, your Honor.
MR. HARMON: Mr. Sims, I'm just going to ask you to point out where the bands--do you want me to hold that for you?
MR. SIMS: Sure.
MR. HARMON: Just show the jury where the bands are that match among the three samples; Mr. Simpson's sample, the rear gate, 117 and sock A-3. I'm not going to ask you to mark them and capture them.
MR. SIMS: Just to point them out?
MR. HARMON: Just to point them out.
MR. SIMS: Okay. On the sock A-3 there is a band here, a band here, (Indicating). On the Defendant's reference sample again a band up here, (Indicating), a band here, (Indicating). And on no. 117, again high molecular weight band there and then the lower molecular weight band is down here, (Indicating).
MR. HARMON: Okay. I would like to place 400-C on the elmo.
MR. HARMON: Could you please point out where the bands that match among those three samples are.
MR. SIMS: Okay. For the sock A-3, the high molecular weight band is here, (Indicating), then a lower band is in this position. For the Defendant's reference sample, again a band up here, (Indicating), and then a lower band again in that position. And then for no. 117, the rear gate, the high molecular weight band is here, (Indicating), and the lower band is in that position again.
MR. HARMON: Your Honor, at this point I would like to bring in the light box and put all eight autorads up there, as well as 400-A, if that is okay.
THE COURT: Proceed.
MR. HARMON: Thank you.
THE COURT: Be careful. If you recollect, the box blew out our electricity the last time.
(Brief pause.)
THE COURT: And Mr. Harmon, do you have much more after that?
MR. HARMON: No, your Honor. Just a couple questions and I'm done.
THE COURT: All right.
(Brief pause.)
MR. HARMON: Your Honor, what I would like to do is put 400-A(1) up there along with the other autorads, the eight autorads.
(Brief pause.)
MR. HARMON: Mr. Sims, in the order I've got these, would you place the eight autorads up there, as well as 400-A(1).
MR. SIMS: (Witness complies.)
MR. HARMON: Okay, your Honor. They are all in place now.
THE COURT: All right. Do you want to present these to the jury?
MR. HARMON: Yes. I would like to give the jury a chance--
THE COURT: All right. Let's start with juror no. 7 today.
(The jurors view the autorads.)
THE COURT: All right. Let the record reflect that all the jurors have had the opportunity and have taken the opportunity to review the eight autorads, People's 400.
MR. HARMON: Just a couple more questions.
MR. HARMON: Mr. Sims, why did you only do RFLP on 117?
THE COURT: Excuse me, Mr. Harmon. Do you want to step on the other side of the monster, please. And can we turn the lights off, please?
MR. HARMON: Mr. Sims, you actually had three stains from the rear gate that you did testing on; 115, 116 and 117; is that right?
MR. SIMS: That's correct.
MR. HARMON: And why did you only do RFLP on 117 from among those three stains?
MR. SIMS: From among those three stains the yields were lower on 115 and 116, such that it might be difficult to get any RFLP at all out of those two.
MR. HARMON: Okay. Just a couple other questions. On some of these--just to go back, because it has been a long time since the jury heard the description of the RFLP process, on some of these autorads there is something that looks like the San Andreas fault that goes across it?
MR. SIMS: Yes, there is.
MR. HARMON: What is that?
MR. SIMS: There was a tear in part of that membrane on the side extending into the middle, around the middle of the actual membrane that occurred during the batch probing process.
MR. HARMON: And the membrane is this fabric?
MR. SIMS: It is a nylon, yes.
MR. HARMON: And it actually tore when somebody was pulling it off the film?
MR. SIMS: It actually tore during the manipulation process, the handling process when it goes in and out of liquid or it is opened up, because it is contained in a plastic wrap.
MR. HARMON: What effect does that have on the testimony you just presented here?
MR. SIMS: It has no effect.
MR. HARMON: What did you do then?
MR. SIMS: Well, thanks to the skill of our batch probing team, they were able to put--it is not torn in half so they were able to bring the two edges right up against each other so that you were still able to go through the whole probing process. Theoretically you could cut this thing in pieces and still size it. It just makes life more difficult.
MR. HARMON: When in the sequence of probings was it that the membrane tore?
MR. SIMS: It was after the first probing, so it was after the D2 membrane was--autorad was obtained.
MR. HARMON: And that is the only one where you can't see this line that looks like an earthquake fault?
MR. SIMS: Actually I don't think you can see it in a lot of them. Some of them you can see it; most of them you can't, as I recall.
MR. HARMON: Okay. Thanks, Mr. Sims. I have no further questions, your Honor.
THE COURT: All right. Mr. Scheck, do you need the display machine?
MR. SCHECK: Just for one second. I will be very brief, your Honor.
THE COURT: All right.
MR. SCHECK: Good morning, ladies and gentlemen.
CROSS-EXAMINATION BY MR. SCHECK
MR. SCHECK: Well, Mr. Sims, good to see you, sir.
MR. SIMS: Good morning.
MR. SCHECK: First of all, Mr. Harmon, at the beginning of his direct examination, mentioned that there were three areas that you were reporting on today and that is results from the Bronco, results from the sock and results from the rear gate at Bundy; is that correct?
MR. SIMS: Yes.
MR. SCHECK: And as far as the results in the Bronco is concerned, sample 25 had already been tested by LAPD and was a DQ-Alpha of 1.1, 1.2; is that correct?
MR. SIMS: That is my understanding, yes, sir.
MR. SCHECK: And that was consistent with Mr. Simpson?
MR. SIMS: Yes.
MR. SCHECK: And that was a drop found in the carpet in the Bronco; is that right?
MR. SIMS: Yes.
MR. SCHECK: And the additional data that you presented to us, I guess, is on no. 26, which was also a drop on the floor mat?
MR. SIMS: Yes. I don't know the exact distribution as far as it being a drop or a smear, but it was some blood on the floor.
MR. SCHECK: Some blood on the floor mat and you did just a D1S80 and this came out 24, 25?
MR. SIMS: Yes.
MR. SCHECK: And that is consistent with Mr. Simpson?
MR. SIMS: Yes.
MR. SCHECK: And no indication of an 18, 18 allele that would indicate a mixture with Nicole Brown Simpson?
MR. SIMS: There was no indication of that.
MR. SCHECK: Okay. All right. Now, let's move to the rear gate--to the sock, excuse me, and what you told us about is blood that was found, I guess, on the sock that was up on the calf area near the top of the sock?
MR. SIMS: Yes.
MR. SCHECK: All right. And basically what you've reported to us today is some additional probes that you conducted on that sample; is that correct?
MR. SIMS: Well, this--this was the first time I had presented any of the RFLP data on this sample.
MR. SCHECK: But actually I think the last time you were here, just so we don't confuse things, even though you didn't present the data, we had a discussion, did we not, on the fact that you had been able to conduct RFLP testing and you had done some probes on that?
MR. SIMS: Yes, I recall that.
MR. SCHECK: Okay. Now, so basically what you are here to tell us is that you did more probes there; is that right?
MR. SIMS: Yes.
MR. SCHECK: Okay. Now, could we turn to what is Defense 1192-B previously in evidence, a chart.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: The last time that we discussed--now I'm at the rear gate, okay?
MR. SIMS: Okay.
MR. SCHECK: And the last time that we discussed--the time that you were here we had a discussion of the amount of DNA and the nature of the DNA on the rear gate. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: And as a matter of fact, on your--in your testimony for the Prosecution you had presented an analysis of the concentration of the DNA that was found on the three samples in the rear gate; 115, 116 and 117. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: And then we went over a comparison of the swatch DNA samples at 115, 116 and 117 based on your data. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: And the basis of this comparison was to take what are known as nanograms, which is sometimes shortened as NG; is that correct?
MR. SIMS: Yes.
MR. SCHECK: And compare it to the milligrams in--and that is a measure of weight.
MR. SIMS: Yes. It was the nanograms of the DNA recovered to the milligrams of the swatch material that was sampled.
MR. SCHECK: Right. And this was part of what you were doing to try to give us an assessment of concentration; is that correct?
MR. SIMS: Yes.
MR. SCHECK: All right. Could we show the comparison, because Mr. Harmon did ask you something here about why you didn't do 115, 116 and the amount of that. Now, in the comparison of the swatch DNA sample to 115 and 116, you found that there was two times as much DNA in those samples as there was to no. 6 which was a drop recovered at Rockingham?
MR. SIMS: That's correct.
MR. SCHECK: Next.
MR. SCHECK: 15 times as much as 47, which is the first--which is a drop found at Bundy, correct?
MR. SIMS: Yes.
MR. SCHECK: Next.
MR. SCHECK: 22 times as much DNA as no. 48, another Bundy drop?
MR. SIMS: Yes.
MR. SCHECK: Next.
MR. SCHECK: 135 times as much DNA as sample no. 49, another Bundy drop?
MR. SIMS: Yes.
MR. SCHECK: Next.
MR. SCHECK: And 25 times as much as no. 50, which is another Bundy drop?
MR. SIMS: Yes.
MR. SCHECK: Is there another one?
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Okay.
MR. SCHECK: Now, this comparison is in terms of the amount of DNA, but wouldn't it be fair to say that certainly as far as 47, 48, 49 and 50 are concerned that what you are finding there with respect to those blood drops is that there was bacterial degradation of those samples?
MR. SIMS: Yes. Again we discussed this in detail last time, but that is my interpretation as to what most likely happened is that there was a bacterial degradation of those samples.
MR. SCHECK: Right. And as far as 115 and 116 are concerned, by the use of your yield gel and slot-blot analysis you did not find bacterial degradation in those samples?
MR. SIMS: I did not detect that same bacterial degradation type pattern that I saw in those other samples.
MR. SCHECK: Thank you. Now, could we look briefly at 1192-A.
MR. SCHECK: Now, 1192-A is the comparison of DNA sample to 117 and that is the back gate sample for which you were able to do RFLP testing; is that correct?
MR. SIMS: That's correct.
MR. SCHECK: And you found four times as much, the concentration here to be four times as much--Howard; is that correct?
(Discussion held off the record between Defense counsel.)
MR. SCHECK: All right. We found in terms of concentration four times as much as Rockingham drop?
MR. SIMS: Yes.
MR. SCHECK: 27 times as much as 47?
MR. SIMS: Yes.
MR. SCHECK: 45 times as much as 38?
MR. SIMS: Yes.
MR. SCHECK: Could we have the next one.
MR. SCHECK: 270 times as much as 49?
MR. SIMS: Yes.
MR. SCHECK: Next.
MR. SCHECK: 51 times as much as 50?
MR. SIMS: Yes.
MR. SCHECK: Is there another one?
(Discussion held off the record between Defense counsel.)
MR. SCHECK: And 11 times as much as no. 52?
MR. SIMS: Yes.
MR. SCHECK: Okay. Now, again with respect to 117, in terms of your slot-blot analysis and your yield gel analysis, you did not find the same evidence of bacterial degradation and contamination that you found on 47, 48, 49, 50 and 52?
MR. SIMS: Well, again I think we talked a little bit about this, but you recall there were only three of those five that you mentioned that we actually had a yield gel on where we could see the bacterial degradation pattern.
MR. SCHECK: Right.
MR. SIMS: So that's correct, we did not see that same pattern that we did see.
MR. SCHECK: Fine.
MR. SCHECK: Now, finally, one other measure of whether or not there is bacterial contamination in samples, as reflected in RFLP testing, is your ability to detect, umm, DNA bands at the top of the RFLP membranes; is that correct?
MR. SIMS: Yes. The bands that are at the top of the membrane, the top portion, those would tend to be the higher--well, they are the higher molecular weight DNA bands and those are more subject to degradation than the lower bands.
MR. SCHECK: And the reason that they are more subject to degradation is that they are larger?
MR. SIMS: Yes.
MR. SCHECK: And that the process of bacterial contamination is such that the bacteria begins to eat away and it is going to get the larger fragments earlier than the smaller fragments?
MR. SIMS: Well, it will--it will chop down the larger fragments so they tend to get smaller is what happens and they tend to degrade.
MR. SCHECK: All right. And if you were to have significant or even substantial--I think we used those two terms--
MR. SIMS: Yes.
MR. SCHECK: -- to make a distinction in regard to bacterial degradation, but if you were to have either significant or substantial bacterial degradation, what you would tend to find is that you might either lose bands at a top of an RFLP gel or they would become faint in comparison to other bands?
MR. SIMS: Yes.
MR. SCHECK: Now, on these samples, for example, I think it is--you can refer to your notes--D1S7, is a sample where you found on 117 high molecular weight DNA band at the top of the gel at around 10,028 base pairs?
MR. SIMS: Yes. For the rear gate, 117, it is about 10,342, so 10,342 base pairs.
MR. SCHECK: All right. And literally that means that there is--those, you know--well, tell the jury exactly what that means in terms of base pairs rather than have me describe it.
MR. SIMS: Yes. Well, I think we've had some discussion about base pairs in DNA and what we are talking about there is the g pairing with the c and the a pairing with the t and each one of those is a base pair. So this would be 10,300 of those is the size of the fragment, so if you could visualize this, you recall seeing these--the hydrogen bonds bringing the two DNA strands together, there would be 10,000 some odd of these units together and that is the size of this fragment after the restriction enzyme is cut into the pieces.
MR. SCHECK: And just to illustrate the point, your Honor, may I remove from the light box and put up for a second on the elmo, just so everybody can see exactly which autorad I'm referring to--
THE COURT: Yes.
MR. SCHECK: -- the D1S7 autorad just for illustrative purposes.
THE COURT: All right. Mr. Scheck, are you going to use the rest of the items on the box, because the glare is--
MR. SCHECK: Just before I do that then, just for purposes of--
MR. SCHECK: D4S139, would you agree that that is another probing that had bands that appear to be in the upper range?
MR. SIMS: Yes. That is around 8800.
MR. SCHECK: All right. Let the record reflect that I am just pointing for the jury to the particular autorad that has those--that I have just--Mr. Sims and I were just discussing.
MR. SCHECK: And now I'm moving to another one that is entitled D5S110, and again, would that--that has some bands at the top of the gel?
MR. SIMS: Yes. Those bands are around 11,000.
MR. SCHECK: All right. And as far as the D4S139 and the D5S110, those are pretty clear and distinct bands at the top of those gels?
MR. SIMS: Yes, they are.
MR. SCHECK: And that is consistent with your finding of no significant or substantial bacterial contamination on sample 117?
MR. SIMS: That's correct.
MR. SCHECK: And I would suppose D17S26, the upper band there is also in the upper regions of the gel?
MR. SIMS: Somewhat. Now we are getting a little more toward what I consider the middle range, but that is 68, 6900.
MR. SCHECK: Okay. And--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: And could you just--if do you me a favor and come down here and just circle the high molecular weight band on 117. This is on the D1S7 autorad that I think you told us was something--something on the order of 10,030 base pairs; is that correct?
MR. SIMS: Yes.
MR. SCHECK: All right. And is there a lower band in this?
MR. SIMS: Yes.
MR. SCHECK: All right. And those are fainter actually?
MR. SIMS: Yes. That is typically what is seen, because there is a lot more copies of where the probe is hitting in the higher band than in the lower band, so when you see a spread like that, where the bands are quite spread out across the--from the top and bottom into the gel, that usually the lower band is significantly weaker than the upper band.
MR. SCHECK: But the fact that the upper band, which is--is more distinct and more intense than the lower band, that is another good indication that we don't have any significant or substantial bacterial contamination with 117?
MR. SIMS: That's correct.
MR. SCHECK: Okay. No further questions, your Honor.
THE COURT: Mr. Harmon.
MR. HARMON: Just a few questions.
REDIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Mr. Sims, just to take on that last question--
THE COURT: Mr. Harmon, you need to do your questioning on the other side of the monster there.
MR. HARMON: Sure.
MR. HARMON: Were there signs of degradation on any of those rear gate stains?
MR. SIMS: The yield gel patterns did not show the type of bacterial degradation that I talked about, although you can see from the photograph that the DNA is starting to degrade a little bit. It is--it is not pristine DNA. In other words, it is showing some of this pattern whereby there is a high band and then it is starting to show a little smearing below that.
MR. HARMON: And time causes that to happen?
MR. SIMS: Yes, it does.
MR. HARMON: Environment?
MR. SIMS: Yes.
MR. HARMON: Mr. Scheck kept asking you about the significant bacterial degradation with respect to the rear gate. You said you saw none of that?
MR. SIMS: That's correct.
MR. HARMON: But you did see signs of degradation that you know are caused by time?
MR. SIMS: Yes, and exposure is the way I would put that.
MR. HARMON: Okay. Thanks.
THE COURT: Mr. Scheck.
RECROSS-EXAMINATION BY MR. SCHECK
MR. SCHECK: That last question that Mr. Harmon asked you about seeing some smearing or smudging, you can't tell us anything, can you, about how much time would cause that kind of slight smearing, can you?
MR. SIMS: No. In other words, you typically see that little bit of degradation. It is not unusual to encounter that.
MR. SCHECK: Even on something that has been there for a day?
MR. SIMS: That's--that's possible, yes.
MR. SCHECK: And in addition, in respect to those questions that Mr. Harmon asked you, the difference between sample 50, for example, which is found on the ground at Bundy, within feet of the rear gate, sample 50 had significant bacterial degradation, did it not?
MR. SIMS: Well, again, let me check that real quick because I want to make sure that that is one of the samples that we did run the yield gel on. If you give me one moment I will check that.
MR. SCHECK: All right.
MR. SIMS: (Witness complies.) On DNA 8, which is LAPD no. 50, on that particular sample now we didn't see anything on the yield gel. There was no--there was none of this--no pattern, period. In other words, there was no high molecular weight and there was no degradation pattern.
MR. SCHECK: When you say there was nothing on the yield gel, what does that mean in terms of the amount of high molecular weight DNA you have?
MR. HARMON: Objection, your Honor, that is beyond the scope. We are on 50 now.
THE COURT: Overruled.
MR. SIMS: In other words, we did not see any high molecular weight DNA from the bloodstain.
MR. SCHECK: And that could--that is consistent with a sufficient amount of bacterial degradation that so much of the high molecular weight was eaten away by the bacteria that you couldn't even get a reading on the yield gel?
MR. SIMS: That is certainly possible, yes.
MR. SCHECK: No further questions.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Mr. Harmon.
MR. HARMON: No further questions, your Honor.
THE COURT: All right. Thank you very much, Mr. Sims. Good to see you again.
MR. SIMS: Thank you, your Honor. Good to see you again.
THE COURT: All right.
MR. SCHECK: I think he has a very nice haircut.
THE COURT: Almost as nice as mine. All right. All right. Mr. Harmon, can we get the monster out of here? Mr. Wooden, would you assist him on that, please.
(Brief pause.)
THE COURT: All right. Do the People have their next witness available?
MS. CLARK: We need to confer with the Court concerning that.
THE COURT: All right.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Ladies and gentlemen, we--I have some scheduling matters I need to talk to the lawyers about. I'm going to give you a longer lunch hour than normal today, up in the big lounge rather than keep you down here. Also, if you recollect, one of the jury members needs to attend a graduation this afternoon, so we will be quitting early today at three o'clock. Please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, allow anybody to communicate with you or conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned we will stand in recess until one o'clock. And I would like to see counsel in chambers in about five minutes.
(Recess.)
(A conference was held in chambers, not reported.)
(A conference was held in open court, not reported.)
(At 11:45 A.M. an adjournment was taken until Wednesday, June 21, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Tuesday, June 20, 1995
Volume 171 pages 32869 through 32944, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 171 pages 32869 - 32944
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Day date session page vol.
Tuesday June 20, 1995 A.M. 32869 171
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S witnesses direct cross redirect recross vol.
Poser, Samuel 32884Gb 32890B 32897Gb 171 mark
Sims, Gary 32907Rh 32926Bs 32938Rh 32940Bs 171 (Recalled)
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Poser, Samuel 32884Gb 32890B 32897Gb 171 mark
Sims, Gary 32907Rh 32926Bs 32938Rh 32940Bs 171 (Recalled)
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
400-A thru 400-H - 32918 171 autoradiographs
400-A(1) - photograph 32920 171 of autoradiograph (Computer printout)