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: Good morning, counsel. Back on the record in the Simpson matter. All parties are again present. The Defendant is present with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Scheck, Mr. Blasier. The People are represented by Mr. Darden and Mr. Harmon. The jury is not present. All right. Deputy Magnera, let's have the jurors, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Miss Montgomery, would you come forward, please.
Renee Montgomery, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Good morning, Miss Montgomery.
MS. MONTGOMERY: Good morning.
THE COURT: Miss Montgomery, you are reminded that you are still under oath. And Mr. Harmon, you may commence your redirect examination.
MR. HARMON: Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
REDIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Miss Montgomery, Mr. Blasier asked you some questions about how recently your laboratory implemented D1S80 yesterday. Do you recall that?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: And he also asked you a question about cellmark and I believe you said cellmark is not using the D1S80 marker. Do you recall that?
MS. MONTGOMERY: That's correct.
MR. HARMON: Are there a number of labs which are using the D1S80 marker currently?
MS. MONTGOMERY: Yes. There are, umm, both private and public laboratories that are using the D1S80 marker. Some of the laboratories are the Minnesota State laboratory, Dr. Ed Blake's laboratory, which is FSA. It is in northern California. The Orange County Crime Laboratory is using D1S80. AFIP, which is the Armed Forces Institute of Pathology, is using D1S80. Did I state Minnesota crime lab.
MR. HARMON: Yes?
MS. MONTGOMERY: Laboratory?
MR. HARMON: And others?
MS. MONTGOMERY: Oh, yes, and there are other laboratories that are using it.
MR. HARMON: Now, yesterday with Mr. Blasier's examination of you, you realize that many of the exhibits that were projected up there are computer scan photos that were taken by Dr. Blake, do you not?
MS. MONTGOMERY: Yes.
MR. HARMON: Do those photos accurately represent the data which is on the original gel from which you produced your results?
MS. MONTGOMERY: No. As I stated yesterday, it is best to see the actual duplicate copy, the blue copy, to see what bands are present.
MR. HARMON: And using scan photos projected on the elmo up on this screen to show or to attempt to demonstrate that something is not there, do you feel that is a scientifically reliable way to determine whether something is on the original gel?
THE COURT: Excuse me, counsel. That misstates the application.
MR. HARMON: Pardon me, your Honor?
THE COURT: That misstates. They were computer--they are coming--computer-generated photographs coming off a hard drive; not from the elmo.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: I'm sorry, your Honor. Our computer expert has--
THE COURT: Whispered in your ear.
MR. HARMON: --straightened me out on that.
MR. BLASIER: I also object. It is argumentative.
THE COURT: Rephrase the question.
MR. HARMON: Do those--those computer scanned photos which were projected up on the screen, do they in any way accurately reflect what was not--what you saw on the original gel when they are used to demonstrate that something is not on the original gel?
MS. MONTGOMERY: Well, no. You lose some of the sensitivity. It is good just for a guide to give you some bearing on what is on the gel, but you actually need to see the gel yourself and to view that gel.
MR. HARMON: Okay. Mr. Blasier also put up on the screen analytical gel 184 which--where there was--remember the discussion about what you described as an artifact in between lanes for the other substrate control and an extraction blank? Do you recall that?
MS. MONTGOMERY: Yes.
MR. HARMON: Okay. And just to reflect back, the purpose of a substrate control is what?
MS. MONTGOMERY: It is to show you what the substrate around the stain in question is--what is occurring with that stain, so if there is any background, you need to be able to detect that background.
MR. HARMON: And is it important in that regard to look at the actual stain which is adjacent to the substrate control?
MS. MONTGOMERY: Yes, it is.
MR. HARMON: Now, let's assume--I know you say that is an artifact. I want you to imagine or assume that that was not an artifact, that that was really a band on a g184, even though it is between lanes. Even though you have described it, it is not a band, I want you to imagine that it is a band. Okay?
MS. MONTGOMERY: Okay.
MR. HARMON: Imagining that really was a band on the other substrate control, would it be important for you to compare this imaginary band with the actual stain for 50 to see if that imaginary band appears in the stain?
MS. MONTGOMERY: Well, yes, it would. If--let's hypothetically say that--
MR. BLASIER: Objection, objection. No foundation to say that you can see it in a stain.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Would it be important for you, imagining that that really was a band, even though that is not your opinion, to look at the typing results for the substrate control to see if that imaginary band appears there?
MR. BLASIER: Objection, vague as to what typing results.
THE COURT: Overruled.
MS. MONTGOMERY: Yes. One would want to look at the substrate control, and if banding did occur in the substrate control or if any DNA was detected there, then you would want to compare that to your evidence sample.
MR. HARMON: Okay. And do you recall what your typing results were for stain no. 50, one of those Bundy walk stains?
MS. MONTGOMERY: I will have to look at the report and my notes.
(Brief pause.)
MR. HARMON: While you are doing that, this imaginary band that you have already described was not there, where did it line up with respect to the ladder?
MR. BLASIER: Your Honor, object to the term "Imaginary" as being argumentative.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Imagining that that really was a band--
MS. MONTGOMERY: Yes.
MR. HARMON: --which I'm forcing you to do in this question, where did that band that I have asked you to imagine line up with?
MS. MONTGOMERY: Well, as--when Mr. Blasier was--excuse me--asking me we were--we saw that it was right in between the--I believe it was the 17, but let me look at my notes again to be sure of that.
(Brief pause.)
MS. MONTGOMERY: Mr. Harmon, what gel number was it, analytical gel number?
THE COURT: 184.
MR. HARMON: 184 is what I have written down.
MS. MONTGOMERY: Thank you.
(Brief pause.)
MS. MONTGOMERY: The evidence sample, DNA--I'm sorry, DNA 8, LAPD no. 50 from the Bundy crime scene, came back a 24, 25.
MR. HARMON: Okay. Could we project 275-C up, your Honor.
(Brief pause.)
MR. HARMON: Okay. Now, if you recall exhibit 275-C--do you want to take a look at it?
MR. BLASIER: Your Honor, I'm going to object. May we approach?
THE COURT: Overruled.
MR. HARMON: You can turn that off.
MR. HARMON: The bands in that stain were a 24, 25; is that true?
MS. MONTGOMERY: That's correct.
MR. HARMON: And nothing appeared in the area of the band that I have asked you to imagine appearing in 50 control; is that true?
MS. MONTGOMERY: That's correct.
MR. HARMON: And even if that band that I have asked you to imagine was on the other control, the fact that you see nothing on the other stain, what is the significance of that? And I'm asking you to imagine something that is contrary to your scientific opinion.
MS. MONTGOMERY: Well, the only banding pattern that was seen on the evidence sample that relates to that substrate control was a 24 band and a 25 band. There are no bands seen in any other region of that gel.
MR. HARMON: Okay. Let's move to the proficiency tests that were shown up on the screen by Mr. Blasier. Did you know that the correct answer to the quality control sample on that proficiency test was a 1.1, 3?
MS. MONTGOMERY: No, I did not. These are blind--or they are unknown to me. The results are unknown to me when I'm doing the analysis.
MR. HARMON: Did you make up the explanation of cross-hybridization for describing in your notes on the result sheet what you saw in that QC result?
MS. MONTGOMERY: No. Cross-hybridization is documented in a lot of the literature.
MR. HARMON: Is it listed in the manufacturer's user guide on page 6-5?
MS. MONTGOMERY: Yes. It is noted in the Roche user's guide.
MR. HARMON: Okay. Is it also mentioned in Dr. Blake's case work article, "The phenomenon of cross-hybridization" on page 704?
MS. MONTGOMERY: Dr. Blake does mention cross-hybridization in his 1992 case work paper. As far as the exact page, you would have to show me the document.
MR. HARMON: Okay. And moving to the test sample, and in your proficiency tests, when you wrote down what your opinion was when you saw the data, did you know that the correct answer was 1.2, 3?
MS. MONTGOMERY: No, I did not.
MR. HARMON: Mr. Blasier put up the gel where the three reference samples were initially run and you described that you were unable to type Mr. Simpson. Do you recall that yesterday?
MS. MONTGOMERY: Yes. Mr. Simpson's sample gave no results on the first amplification.
MR. HARMON: Okay. And your explanation for that was PCR inhibition. Do you recall that?
MS. MONTGOMERY: Correct.
MR. HARMON: Did you make up the explanation inhibition to explain that?
MS. MONTGOMERY: No, I did not.
MR. HARMON: Is the subject of inhibition, PCR inhibition mentioned, in the user guide by the manufacturer of these kits?
MS. MONTGOMERY: Yes, it is.
MR. HARMON: Is it also mentioned in Dr. Blake's case work article on page 719?
MS. MONTGOMERY: Yes. Dr. Blake does mention it. As far as the exact page, I would have to look at the document.
MR. HARMON: Is it also mentioned in the chapter 17 that was authored by Dr. Blake and Cecelia von Beroldinger on page 214, the subject of PCR inhibition?
MS. MONTGOMERY: Chapter 17 of the PCR technology book?
MR. HARMON: Yes.
MS. MONTGOMERY: Yes. It is addressed--inhibition is addressed in that article also.
MR. HARMON: Is it also addressed in the analytical chemical article that we have discussed authored by Dr. Blake and Becky Reynolds from Roche?
MS. MONTGOMERY: The article by Dr. Blake and Dr. Reynolds does mention inhibition also.
MR. HARMON: And is it also discussed in a chapter in the book, the Saferstein book the way we have described it, the authors of which are Dr. Blake and Dr. Sensabaugh, the subject of PCR inhibition?
MS. MONTGOMERY: Well, Saferstein has three books out, and in the third edition there is a chapter devoted--the chapter I believe you are referring to is devoted to PCR and there is mention of inhibition in that chapter.
MR. HARMON: And is there also an article by Dr. Blake--
THE COURT: Excuse me, counsel. Aren't we getting cumulative at this point?
MR. HARMON: It is my last article, your Honor.
THE COURT: All right. Last one.
MR. HARMON: Is the phenomenon documented by Dr. Blake and Mr. Haguchi or Dr. Haguchi, who is also from Roche, in a 1989 symposium paper that was published in the FBI symposium? Do you want to take a look at that one?
MS. MONTGOMERY: Yes. Could I take a look at that?
(Brief pause.)
MR. HARMON: The name of the article is "PCR inhibition in bloodstains."
(Brief pause.)
MS. MONTGOMERY: Yes, I recognize this article and it does discuss inhibition in this article, also.
MR. HARMON: And when faced with the prospect of PCR inhibition or the--or strike that. Do all of these articles also discuss what you do when you think there is PCR inhibition?
MS. MONTGOMERY: Yes. If inhibition occurs with the sample, and by inhibition you don't get any typing results, no product is obtained from that sample, analysis should be reconducted to try to get a result from that sample and then it could be reconducted by either diluting the sample--by diluting the sample out and then reamplifying it.
MR. HARMON: Okay. Okay. Is that what you did?
MS. MONTGOMERY: Yes, I did.
MR. HARMON: And in your opinion is that what any responsible forensic scientist would do?
MS. MONTGOMERY: Yes.
MR. HARMON: Now, did you see--remember Mr. Blasier showed those graphics, one about the glove and they purported to show the locations of stains where the 25 alleles were found. Do you recall that yesterday?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: Could we put that up on the screen, your Honor.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. This is Defense exhibit--
MR. FAIRTLOUGH: 1173-C.
THE COURT: All right.
MR. HARMON: Okay. Have you had a chance to look at that?
MS. MONTGOMERY: Yes.
MR. HARMON: And are you familiar with the sampling of the glove and the relationship of the stains that were typed by you and Mr. Sims that produced the--that detected the 25 allele?
MS. MONTGOMERY: Yes, I have reviewed some photographs.
MR. HARMON: Is that slide misleading in terms of the location of the stains?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: How misleading is that slide with respect to showing where those stains actually are?
THE COURT: Counsel, counsel, rephrase the question.
MR. HARMON: Does that slide accurately reflect the location of the stains which produced the 25 allele?
MS. MONTGOMERY: Well, I think the best depiction would be to see the actual photograph, to see--
MR. BLASIER: Object, nonresponsive.
THE COURT: Overruled.
MR. HARMON: Why is that?
MS. MONTGOMERY: Because that is the actual documentation of this item.
MR. HARMON: Okay. Would you like to do that, please. We will put that board up. Just stay right where you are.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: 272-A and B, your Honor, are the exhibit numbers.
(Brief pause.)
MR. HARMON: Miss Montgomery, why don't you look at the slide again. From looking at that can you tell whether that is a right-hand glove or a left-hand glove?
MS. MONTGOMERY: I believe it could be either glove, depending on the orientation of the hand.
MR. HARMON: Okay. Would you look at 272-B, the photo board, and if you could take the pointer and show us where those stains really are on that right-hand glove, no. 9, from Bundy--from Rockingham.
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question. And Mr. Harmon, how about if we take that board and put it on the main easel. You can put it on top of the results board.
MR. HARMON: Okay.
THE COURT: Because it is--the height of that exhibit in that location--
MR. HARMON: I just wanted to have them both together. That is fine.
THE COURT: All right.
(Brief pause.)
THE COURT: All right. Rephrase the question, please.
MR. HARMON: Okay. Would you point out to the jury where the stains which produced the 25 allele are?
MS. MONTGOMERY: Okay.
MR. HARMON: Or where they were?
MS. MONTGOMERY: Once again, just by looking at my notes to get the exact item numbers, a 25 allele was detected on G10 and there was a 25 on--
MR. HARMON: Okay. Just, you know, because those are inside out gloves, two of them, and one is right side out, could you make it real clear where--what surface that is on and where it is. Just describe it in words, please.
MS. MONTGOMERY: Okay. G10 is the inside surface near this wrist notch and the results of G10 were a 25 allele and a weaker 25 allele.
MR. HARMON: Okay. Next stain.
MS. MONTGOMERY: There was also a 25 allele detected at G11 and G11 is the outside palmer surface of the glove, (Indicating). And what was detected here was a 24 allele and a weaker 25 and 18 alleles.
MR. HARMON: Okay.
MS. MONTGOMERY: On G13, (Indicating), which is also the outside surface of the glove, there was--near the notch area, there was a 24 allele detected and also weaker 25 and 18 alleles detected in this region, (Indicating).
MR. HARMON: Okay. Thanks, Miss Montgomery. You can go back and have your seat.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Mr. Blasier asked you about a problem you had with one of the glove gels. Do you recall that, with the ladder leaking?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: And your solution to that was to rerun the test; is that right?
MS. MONTGOMERY: Yes. Anytime I am not confident with the result or if there is any question in the results, I will do a reanalysis on those samples.
MR. HARMON: Okay. In fact, did you get the same answers when you reran that gel that you did on the gel where the ladder leaked into the lane?
MS. MONTGOMERY: Yes. For the evidence samples and the controls I obtained the same results.
MR. HARMON: And is that what a responsible forensic scientist would do when faced with that problem?
MS. MONTGOMERY: Well, I think any individual, when there is a question, needs to do reanalysis on samples.
MR. HARMON: And Mr. Blasier projected a G295 up there, the rear gate gel. Do you recall that yesterday?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: Okay. And in your opinion you described what was on there that he directed your attention to as not a problem; is that true?
MS. MONTGOMERY: Could you state specifically what the problem he addressed on that gel was?
THE COURT: Miss Montgomery, why don't you pull the microphone closer.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Sure.
(Brief pause.)
MR. HARMON: I don't really recall. We heard about a lot of problems yesterday.
MR. HARMON: Do you recall that there was a problem, perhaps a band, a line of bands that went all the way across the gel or a line of shadows that went across the gel?
MS. MONTGOMERY: Well, I will look at that gel and see if that is the one that had the silver smearing across the bottom region.
(Brief pause.)
MS. MONTGOMERY: This is a beautiful gel. I don't know what problem could have been mentioned on this.
MR. HARMON: If there had been a problem, could any responsible forensic scientist have rerun it?
MS. MONTGOMERY: Yes. If a problem was detected, the gel should be rerun.
MR. HARMON: Okay. But you saw no reason to do that in this case; is that correct?
MS. MONTGOMERY: That's correct.
MR. HARMON: There was a lot of discussion yesterday about terms that you've used to communicate data that you saw; a hint, a trace, possible trace. Do you recall those discussions?
MS. MONTGOMERY: Yes.
MR. HARMON: Do the words that you used to try to communicate or convey the data, do they somehow change the data?
MS. MONTGOMERY: No, they don't.
MR. HARMON: Okay. So the data is what you have shown this jury; is that correct?
MS. MONTGOMERY: That's correct.
MR. HARMON: And the words are words you have used to try to express that so that they can appreciate it?
MS. MONTGOMERY: Correct.
MR. HARMON: Mr. Blasier asked you some words about examiner bias yesterday or some questions about examiner bias. Do you recall that?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: I want to you ask you a question about examiner bias. Can you make a 24, 25 result look like a 18 by wishful thinking?
MS. MONTGOMERY: No, you can't.
MR. HARMON: Did anything arise in the course of Mr. Blasier's questioning of you that in any way undermines the results that you and Mr. Sims have presented to this jury?
MS. MONTGOMERY: No, there was nothing.
MR. HARMON: If a responsible forensic scientist had questions about the results you have presented, could she have performed retesting to address the question scientifically?
MS. MONTGOMERY: Yes. Anytime there is a question, reanalysis can be done on these samples. The ones where there were questions, reanalysis was done.
MR. HARMON: And could that reanalysis be done using PCR product that you conserve?
MS. MONTGOMERY: Yes.
MR. HARMON: Could it be done using sample swatches that you preserve?
MS. MONTGOMERY: Yes.
MR. HARMON: And could it be used on extracted DNA that you preserved in this case?
MS. MONTGOMERY: Yes, if any extracted DNA remains.
MR. HARMON: Okay. Thanks, Miss Montgomery.
THE COURT: All right. Mr. Blasier.
MR. BLASIER: Thank you, your Honor.
RECROSS-EXAMINATION BY MR. BLASIER
MR. BLASIER: Miss Montgomery, yesterday before lunch or at lunch I gave you every picture that I was going to use, didn't I?
MS. MONTGOMERY: Yes, you did.
MR. BLASIER: And I told you to look at them and compare them to your gels, didn't I?
MS. MONTGOMERY: Yes, you did.
MR. BLASIER: And I told you to look at them and compare to the original of your gels, not the blue film, right?
MS. MONTGOMERY: I don't recall if you specifically said to compare them to the originals or the copies.
MR. BLASIER: You didn't have the blue films, did you? They were in evidence?
MS. MONTGOMERY: No, I have--I made multiple copies of the blue film or of the gel, both for discovery purposes and also to retain copies within--for the case files.
MR. BLASIER: And I told you that I wanted you to look at them carefully to make sure that they were accurate pictures, that they accurately portrayed what you have on your film, didn't I?
MR. HARMON: Objection, that is irrelevant and calls for hearsay.
THE COURT: Overruled.
MS. MONTGOMERY: Yes, you asked me to look at those photos and see how they compared to the--to the gels I had or the copies.
MR. BLASIER: And you came back after lunch and you handed my pictures back to me and you said, "These are great, I wish we had some of these," didn't you?
MR. HARMON: Your Honor, that is hearsay, we are talking about the computer; not the photo.
THE COURT: Sustained.
MR. BLASIER: You came back and told me "These pictures are fine," didn't you?
MR. HARMON: Objection. It is irrelevant, calls for hearsay.
THE COURT: Overruled. That is not irrelevant.
MS. MONTGOMERY: Actually the photos, as far as showing the ladders and what the samples are and the strong band, they are excellent photos. As far as the weaker band, you need to actually see the gel to be able to capture the weaker gels and to be able to visualize them with your eyes.
MR. BLASIER: Move to strike as nonresponsive.
THE COURT: Overruled.
MR. BLASIER: Did you tell me any of that yesterday after lunch?
MS. MONTGOMERY: I told you parts of that, yes.
MR. BLASIER: And I told you that for any picture that I showed if you wanted to look at your original gel you should tell me so, right?
MS. MONTGOMERY: I--I don't recall if you said that or not.
MR. BLASIER: Didn't I say that in front of the jury here? Do you remember that?
MS. MONTGOMERY: I don't remember hearing it, but you may have said it.
MR. BLASIER: And the two films that we sent--we showed to the jury, were actually your films, not my pictures, correct?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, I want to show you--I want to show you 275-I which is the film with the dress samples on it, correct?
MR. HARMON: Objection, it is beyond the scope.
THE COURT: Overruled.
MS. MONTGOMERY: Okay.
MR. BLASIER: And I put a post-it on there with arrows above the two bands that you say are there at 24, correct?
MS. MONTGOMERY: That's correct.
MR. BLASIER: And let me show you the substrate control that Mr. Harmon asked you about which is 275-Q,. The band in the substrate control lane, have I put a post-it with an arrow above the band that you say isn't a band?
MR. HARMON: Objection, it is argumentative, convoluted, compound.
THE COURT: Overruled.
MS. MONTGOMERY: Well, the band that you say isn't a band, it is not a band, that is why I say it isn't a band. There is the one where we were talking about it yesterday where there is this little glitch in the gel, and if we could pass it around to the jury for them to look at, that would probably help.
MR. BLASIER: Do you see something there that looks like a band?
MS. MONTGOMERY: No, I don't. I see an artifact in between these two lanes.
MR. BLASIER: You see an artifact that looks like a band?
MS. MONTGOMERY: No, it does not look like a band.
MR. BLASIER: You can see something there that looks like a band and you can't see--what you can see on the dress is much fainter than what you see on the substrate control, correct?
MS. MONTGOMERY: No, that is incorrect. This is not a band and it is not a band because it is not a distinct banding pattern. It also falls within two lanes, and you could tell it is just a--you know, I don't know how else to describe it besides a blip. But if you could show to it the jury, I think that would help.
MR. BLASIER: Your Honor, I would like to put these on the elmo side-by-side, if we could.
THE COURT: All right.
(Brief pause.)
MR. BLASIER: Let's try one at a time. We can't fit them both on here. Let's try 275-Q, the substrate control first. Can you zoom in on it?
MS. MONTGOMERY: Would it be okay if I went to the podium?
THE COURT: Let's see how it projects first on the monitor.
MS. MONTGOMERY: That is upside down.
(Discussion held off the record between the Deputy District Attorneys.)
MR. BLASIER: All right. Can you see the area right below where my post-it says "No band"?
MS. MONTGOMERY: Yes, I do.
MR. BLASIER: That is what you are saying is not a band?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, let's look at the dress. Now, you see that area?
MS. MONTGOMERY: Yes, I do.
MR. BLASIER: You are calling those two bands, aren't you?
MS. MONTGOMERY: Excuse me.
MR. BLASIER: You interpreted those at being two bands there, didn't you?
MS. MONTGOMERY: Could you put it into real life instead of magnified?
(Brief pause.)
MS. MONTGOMERY: Yes, and--as I--when I was talking or when Mr. Harmon was presenting the gels, asking me to explain some of the fainter ones, I was saying that it is difficult to see those fainter bands from when--when they are projected up on the screen and you actually have to see them. It is just like slide presentations. Sometimes you lose some of the contrast when you put something on an overhead such as this.
MR. BLASIER: Your Honor, could we pass these to the jury?
THE COURT: Yes.
MR. BLASIER: No. 7?
MS. MONTGOMERY: Mr. Blasier, I think it is best--
THE COURT: There is no question pending.
(The exhibits were passed amongst the jurors.)
(Discussion held off the record between Defense counsel.)
MR. BLASIER: Your Honor, could we also have a white sheet of paper? It makes it a little easier to see.
THE COURT: No, they have their juror's notebooks.
MR. BLASIER: Okay.
(Brief pause.)
THE COURT: All right. Mr. Blasier, would you collect those items from Deputy Russell.
(Brief pause.)
THE COURT: All right. Thank you, counsel. Proceed.
MR. BLASIER: Miss Montgomery, these slides we just showed the jury, this is what you submitted to the Court as evidence of your testing, correct?
MS. MONTGOMERY: Do those have the evidence labels on them?
MR. BLASIER: I'm sorry?
MS. MONTGOMERY: Yes.
MR. BLASIER: Do they have the labels?
MS. MONTGOMERY: Yes, yes, those are the two.
MR. BLASIER: Now, cross-hybridization, I want to ask you a couple of questions about what Mr. Harmon asked you. Under what conditions do you get cross-hybridization so that you have a 1.3 dot show up?
MS. MONTGOMERY: Cross-hybridization can occur when there is a slight difference in the temperature of the stringency wash during the typing process of the DQ-Alpha. And I believe Dr. Cotton may have gone into this in a bit more detail, and if the temperature is slightly off, then you could get some of this weak dot, some of the weak dots occurring within the sample.
MR. BLASIER: There are controls built into the system so that you don't have temperatures too low, correct?
MS. MONTGOMERY: Well, we use--we calibrate our water bath and we check it with a thermometer, but sometimes if the water level is not high enough, then you could have a high subtle--or a slight difference in the temperature from between where the strips are and to--where the water level ends and then where the top of the tray is.
MR. BLASIER: What does the amplitype user's guys says with respect to cross-hybridization and when it can occur in terms of how much you have to test?
MS. MONTGOMERY: The user's manual--actually if I could refer to that.
MR. BLASIER: Let me refer you to section 6.2.3.
MS. MONTGOMERY: Yes. They talk about cross-hybridization and how it can occur when too much--when you develop your strips for too long or too much DNA is added into the--too much DNA is amplified and these are two other ways that cross-hybridization can occur.
MR. BLASIER: Does the manual say that it can occur when you develop your pictures properly and don't use too much DNA?
MS. MONTGOMERY: When you develop your pictures properly?
MR. BLASIER: Well, let's talk about one of those at a time?
MS. MONTGOMERY: If that is a question.
MR. BLASIER: I'm sorry. If you use the appropriate quantity of DNA you shouldn't get that, right?
MS. MONTGOMERY: No, that is not what this says.
MR. BLASIER: Well, why don't you read it to us.
MS. MONTGOMERY: Would you like me to read the whole paragraph to you.
MR. BLASIER: Yes, yes.
MS. MONTGOMERY: Okay. It is section 6.2.3 of the amplitype user's guide put out by Roche. There is a Cetus emblem because Cetus was the original company and it was bought out by Roche. And in the supporting material section 6-5, it talks about typing of large amounts of amplified DNA. It is a long paragraph.
MR. BLASIER: Go ahead.
MS. MONTGOMERY: "Amplification of samples containing high level of starting DNA," parenthetically, "Greater than 30 nanograms, generally results in large quantities of amplified DNA. Hybridization of very high concentrations of amplified DNA to the probe strips can sometimes lead to the detection of faint background signals much weaker than the C dot which is due to nonspecific, quote, `cross-hybridization' unquote. Cross-hybridization in this context refers to the weak interaction of a probe with a DQ-Alpha sequence allele that is not perfectly complimentary. This occurs more with the subtyping probes than with the typing probes because the subtyping probes detect differences between the alleles of only one or two bases." That is only halfway through. "The extent of cross-hybridization, even with very high levels of amplified DNA, is so low that any faint background signals only appear after lengthy color development. These nonspecific signals do not appear if the color development reaction is stopped with a degree of coloration of the specific dots appears to have reached a maximum."
MR. BLASIER: You can stop there if you like, unless you want to read the rest.
MS. MONTGOMERY: Yeah, I think we should read the rest.
MR. BLASIER: Okay.
MS. MONTGOMERY: "Some samples having very large quantities of amplified DNA require only five to ten minutes for maximum coloration." And our laboratory we develop between 20 and 30 minutes. "Development of color beyond this point, overdevelopment, can also lead to high strip background which decreases contrast." And that is one thing our laboratory--Dr. Blake has noted that we should stop our color development a little earlier than we do.
MR. BLASIER: Mr. Harmon told you to use Dr. Blake's name as many times as you could, didn't he?
MS. MONTGOMERY: He did not tell me to use Dr. Blake's name as many times.
MR. BLASIER: No, he didn't? So the manual tells you that you shouldn't get these dots if you develop your film the appropriate amount of time, doesn't it?
MS. MONTGOMERY: Well, it is in the film. What we are talking about are strips and those are the membranes, the thin membranes that have the dots on them, the 1 dot, the 2 dot, the 3 dot, so we are referring to strips, not film.
MR. BLASIER: The manual says that you only get that phenomena when you develop it for too long, correct?
MS. MONTGOMERY: The manual says that is one reason why you can get that.
MR. BLASIER: And it also says you have to have a high molecular weight of DNA before you see that phenomena, too, right?
MS. MONTGOMERY: No. It said that a high level of DNA and that is one way that cross-hybridization can occur.
MR. BLASIER: High level means a lot of DNA, doesn't it?
MS. MONTGOMERY: Yes, it does.
MR. BLASIER: And in the mixed samples in this case you had very low level of DNA, didn't you?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, does it describe any other way you get cross-hybridization in here, other than those two ways?
MS. MONTGOMERY: Not in that particular manual.
MR. BLASIER: And this is put out by the manufacturer of the kit?
MS. MONTGOMERY: That's correct.
(Discussion held off the record between Defense counsel.)
MR. BLASIER: Now, Dr. Blake's paper on case work analysis, would you agree that that says that you don't get cross-hybridization unless the temperature is too low; 54 degrees rather than 55?
MS. MONTGOMERY: Yes. I believe what the article is referring to is the 1992 publication by Dr. Blake and some other individual states that with changes in the temperature that cross-hybridization can occur.
MR. BLASIER: Now, let's assume hypothetically that you can get cross-hybridization at lower levels of DNA. Would you agree that what that results in giving you is 1.3 dots that really aren't there? I'm sorry, that don't represent any DNA?
MS. MONTGOMERY: Well, I think we need to remember that these dots are very faint and they are not interpreted as part of the--the results. These 1.3's are outlines or hints. If it is anything substantial, and there is a question, then reanalysis should be conducted.
MR. BLASIER: So these are the hints as opposed to the possible traces?
MS. MONTGOMERY: Well, you are bringing possible trace into the way the D1S80 is described. There--the hint as opposed to a trace. If it is trace, then you want to reexamine those samples.
MR. BLASIER: Now, when you got--when you have a trace, you want to reexamine them?
MS. MONTGOMERY: Yes. One should reexamine, if there is a trace amount.
(Brief pause.)
MR. BLASIER: Let me show you Defense 1172-A on the elmo.
MR. BLASIER: You recall, Miss Montgomery, that this is the second time that you ran these proficiency samples, correct?
MS. MONTGOMERY: (No audible response.)
MR. BLASIER: I'm sorry, that is the first time?
MS. MONTGOMERY: Yes, that is the first analysis.
MR. BLASIER: And you got one hint and one trace and you got a hint in QC 839 and a trace in the positive control, correct?
MS. MONTGOMERY: That's correct.
MR. BLASIER: So you did it again. Would that be the reason why you did it again?
MS. MONTGOMERY: No, I don't believe that is the reason why I did it again. I would need to see that whole case file to determine why subsequent analysis was done on this sample.
MR. BLASIER: All right. And you got nothing in your evidence sample, the actual proficiency sample, of any hints or traces, did you?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, let me show you also 1172-B?
THE COURT: Why don't you pull the microphone closer.
MS. MONTGOMERY: (Witness complies.)
MR. BLASIER: This is the second time you ran those same samples, isn't it?
MS. MONTGOMERY: That's correct.
MR. BLASIER: And you got two traces in your proficiency evidence samples, did you not--actually, you got three, didn't you?
MS. MONTGOMERY: Yes, that's true, but if you look at the control on that strip, the positive control, and the QC sample, there is nothing indicated there. And as far as the type that was reported out for these samples, umm--let's see, I can't--on sample 433, the reported result is a 1.2, 3. Those trace amounts in the--the trace amounts of cross-hybridization were not reported out. They weren't significant to the analysis.
MR. BLASIER: You characterize them as a trace when you read the dots, didn't you?
MS. MONTGOMERY: Yes, that is what I wrote.
MR. BLASIER: And you didn't redo that, did you?
MS. MONTGOMERY: No, I did not.
MR. BLASIER: And your quality control showed--I think you just indicated the quality controlled worked fine. That shows two hints, doesn't it?
MS. MONTGOMERY: Yes. Those are hints or just a small amount of color developing in those.
MR. BLASIER: And this is the proficiency test that you say you got the right answers?
MS. MONTGOMERY: Yes, I did.
MR. BLASIER: Could we have the glove board, please?
THE COURT: Yes. Boards.
MR. BLASIER: Well, actually maybe I can do without that. May we have 1173-C, please.
(Brief pause.)
MR. BLASIER: Miss Montgomery, yesterday when I showed you this, I asked you whether the stains G10, G11 and G13 were in the wrist area, didn't I?
MS. MONTGOMERY: I believe you did, yes.
MR. BLASIER: You said they were?
MS. MONTGOMERY: Yes. They are in the lower portion of the glove.
MR. BLASIER: In the wrist area, aren't they?
MS. MONTGOMERY: I believe that is correct.
MR. BLASIER: So where I have circled is the wrist area, isn't it?
MS. MONTGOMERY: Well, yes, that is the lower level of the glove. One would call it a wrist area.
MR. BLASIER: Okay. Now, the upper area of the glove, is it accurate to say that the various samples that were tested, that Mr. Simpson was excluded from any bloodstains on that glove up around the finger area where someone might grab the fingers to take the glove off?
MS. MONTGOMERY: Yes. There were areas in the finger region that were tested and there was no 25 allele detected in those samples.
MR. BLASIER: And there was no--Mr. Simpson was excluded from any sample in the palm area where someone's finger might make contact if they were holding it with the other hand?
MR. HARMON: Assumes, facts not in evidence, that they were all tested, your Honor.
THE COURT: Sustained.
MR. BLASIER: You tested a large number of samples from that glove, didn't you?
MR. HARMON: Objection. That is vague.
THE COURT: Overruled.
MS. MONTGOMERY: Gary Sims examined the glove and I guess I should--I should note that for G11 it was near the wrist notch, it was termed the outside palmer surface. And as I stated, Mr. Sims looked at all these samples and extracted them and then I analyzed them for D1S80.
MR. BLASIER: The reason for taking so many samples was to get a representative sample from different parts of the glove, correct?
MS. MONTGOMERY: That--that would be one reason to test various areas, yes.
MR. BLASIER: And various areas were tested and Mr. Simpson was excluded from everywhere on that glove except the wrist area, correct?
MS. MONTGOMERY: Well, as I stated, the wrist and near the wrist area.
MR. BLASIER: Miss Montgomery, have you ever taken a pair of leather gloves off by pulling them off at the wrist?
MR. HARMON: Objection. That is irrelevant.
THE COURT: Sustained.
MR. BLASIER: I have no further questions.
THE COURT: Mr. Harmon.
MR. HARMON: Can we keep that up there for a second?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: We will come back to that in a second.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: I just have a couple questions, Miss Montgomery.
FURTHER REDIRECT EXAMINATION BY MR. HARMON
MR. HARMON: The cross-hybridization, when you were reading from the user guide there was something in there that I think need to be clarified. I believe the exact words were that this cross-hybridization occurs more with the subtyping probes?
MS. MONTGOMERY: Yes, that's correct.
MR. HARMON: Could you tell the jury, just so they understand what that means, what are the subtyping probes that were used in this case?
MS. MONTGOMERY: Well, the sub--subtyping probes, there are four nominal alleles, and this is the 1 allele, the 2 allele, the 3 allele and the 4 allele and then there are also subtypes and that is the 1.1 and the 1.3 and the 1.2, but the 1.2 has to be inferred because there is not a specific probe for that 1.2. So it is more common to see the cross-hybridization occurring with samples of the subtype.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Can we show 1173-C. Could you come back here, Miss Montgomery.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Okay. What I would like to--what I would like you to do is just so the jury can appreciate what this means and doesn't mean, you know the symbol for circle with a line through?
MS. MONTGOMERY: Yes.
MR. HARMON: Could you put that over the "No genotypes consistent with O.J.S.," please.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: And maybe we need--
MS. MONTGOMERY: Whoops, wrong way. Is that what you would like?
MR. HARMON: Yes. Let's make this line as thin as possible because they are kind of beefy there. Down below "Genotypes consistent with Defendant" if you can fit that in there.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Or just "Types consistent with Defendant."
MS. MONTGOMERY: (Witness complies.) this is like one of those boards.
MR. HARMON: Does that make you dizzy?
MS. MONTGOMERY: It is very difficult to write here.
(Brief pause.)
MS. MONTGOMERY: How does John Madden do this?
(Brief pause.)
MS. MONTGOMERY: Can you read that?
MR. HARMON: We will remember what that means. Could we capture that, your Honor, and I don't know if that is 1173-C(1) or I'm not sure how we number this one.
THE COURT: This one would be a Prosecution exhibit.
MR. HARMON: Okay. Okay. Miss Montgomery, we are done with that now.
THE CLERK: 276.
THE COURT: 276.
(Peo's 276 for id = photograph)
MR. HARMON: Could I have 275-C back up there? And this is my last few questions.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Miss Montgomery, while--this is the substrate control, the 50C, I'm pretty sure that is the one it is--or no, that's the--I'm sorry. The gel that had the other control on it, 275-Q.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Now, we just need to get back to a little basics here. You put the samples in all the way across the top and they move in one direction; is that right?
MS. MONTGOMERY: That's correct.
MR. HARMON: I believe one of the things you said is that whatever that is, it is not a band; is that right?
MS. MONTGOMERY: That's correct.
MR. HARMON: One of the reasons it is not a band is that it is not in a lane; is that true?
MS. MONTGOMERY: Right. That is one of the reasons. I think you will want to clear the telestrator. Yes, and it doesn't have the definition of a band.
MR. HARMON: Well, let's just focus on where it is. It is your opinion that it is not in one of those lanes; is that right?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Objection, leading.
THE COURT: Overruled.
MR. HARMON: Now, can--these bands, they are DNA, they are started out--they are DNA material, right?
MS. MONTGOMERY: Correct.
MR. HARMON: I think we heard amplicons. There is amplicons in there?
MS. MONTGOMERY: Correct.
THE COURT: Pull the microphone closer, please.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Now, can these things move sideways?
MS. MONTGOMERY: No. They are moving down through the gel.
MR. HARMON: I mean, suppose it was a band full of amplicons from a very willful person. Could they--and they wanted to turn left. Could they do that?
MS. MONTGOMERY: No, they do not have control over themselves.
MR. HARMON: They move in one direction?
MS. MONTGOMERY: That's correct.
MR. HARMON: And one direction only?
MS. MONTGOMERY: Correct.
MR. HARMON: Thanks. No further questions, your Honor.
THE COURT: Mr. Blasier.
MR. BLASIER: No further questions.
THE COURT: All right. Miss Montgomery, thank you very much. You are excused. All right. Let me see counsel without the court reporter, please.
(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 are going to take a break in between witnesses, and I may need to talk to the lawyers for about half an hour, so I'm going to have you taken up to the larger lounge upstairs because I think you will be more comfortable up there. Let's stand in recess until the jury is clear and then we will come back and discuss the exhibits.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record. Mr. Harmon, Mr. Scheck, my understanding is the next witness is Collin Yamauchi, correct?
MR. SCHECK: That is correct.
THE COURT: All right. There are some issues we need to resolve before we get to Mr. Yamauchi?
MR. HARMON: Yes, your Honor.
MR. SCHECK: Yes.
THE COURT: All right. Mr. Harmon.
MR. SCHECK: May we take the board first?
THE COURT: No, let's take the other matter first.
(Brief pause.)
MR. HARMON: Me first, your Honor?
THE COURT: You are the one who told me it is going to take a bit, so--
MR. HARMON: Okay. Actually, it may not. Maybe we need to recap our off the record discussion yesterday, because I think it is helpful to see where we started and where we are going to end up with this, your Honor. Dr. Gerdes has been retained as a Defense expert in this case for some time. He has made laboratory visits to LAPD and I believe in January--in December he looked at many things in the lab. In January he photographed many records in the lab that were pursuant to court order and legitimate areas of inquiry by Dr. Gerdes. And as you know, we have consistently requested discovery material to be provided to us by Defense experts whom the Defense has actually put on their list, which one would assume means they have a reasonable expectation of calling them.
THE COURT: All right. Dr. Gerdes is on the witness list?
MR. HARMON: Dr. Gerdes, to my knowledge, has always been on the witness list in this case and I don't think we have ever gotten anything from him until, just coincidentally, before Mr. Yamauchi was about to hit the stand, we were given six pages on May 22nd. I'm not sure what today's date is, so that was just a couple of days ago. And it is a tabulation by Dr. Gerdes of things that he apparently reviewed and photographed and his opinions about them. I am well acquainted with Dr. Gerdes and I am well acquainted of the nature of his observations and evaluations of things, but it would appear that most of these things have nothing to do with Mr. Yamauchi; however, a significant number of them do. My ballpark count was 40 to 50 of these separate items relate to Mr. Yamauchi.
THE COURT: Why don't you give me an example of what these, quote-unquote, items are.
MR. HARMON: Well, you see, one of the problems is that I--this is what Dr. Gerdes has seen. This is his version of what he saw, but these are hybridization strips and sheets for PCR typing done by LAPD in general, and many of them, they are not all Mr. Yamauchi, because he is not the only one that does the PCR DQ-Alpha typing, so they are--these are--it is my understanding that Mr.--that Dr. Gerdes has only seen a hybridization sheet and the strips that are reflected in that hybridization that show the typing results and interpretations and the conclusion of the analyst. Umm, these--these items cover the time period--they go from `93 to `94, which is I think October, `93, to--through the latter part of `94, and, umm, some of them reflect actual--or yesterday, when the subject was broached, Mr. Scheck represented to you that these were LAPD's validation studies, and that is--that is hot necessarily true. That is partially--it is only partially true. And then I believe he corrected it to say, well, it is validation studies and case work. Umm, there are two issues here. Are these things relevant--are the ones that don't affect Mr. Yamauchi at all, where he didn't participate in any of the testing, are they relevant at all? And I'm assuming that absent some specific offer of proof, that they are not relevant, particularly when they are things that Mr. Yamauchi may not be familiar with. I mean, you can't make something relevant by asking a person about something they haven't done and then forcing them to look at it and say what do you think now, Mr. Yamauchi? There are a number of these things
That--as I said, 40 to 50 of these strips were sheets that do relate to Mr. Yamauchi. What the Court is not aware of is Mr. Yamauchi accepted his first PCR DQ-Alpha case in October of 1993. When I looked at this, I tried to segregate what Dr. Gerdes claims he saw with those dates because, you know, that could get relevant if given the right showing or offer of proof. And it would appear that about 18 of these strips--sheets, were after Mr. Yamauchi accepted his first case and 30 of them are before he accepted his first case. So--and I provide that to the Court to assist the Court. Once you hear whatever the offer of proof is, Mr. Scheck alluded to the fact that he was only going to ask a few general questions, and, you know, we might save a lot of time if he specifies what the questions are. There may not be any objection to this. We would welcome Dr. Gerdes coming in and testifying about this. I don't--if he couches his testimony correctly, it could be highly relevant, and we are anxious to hear that from him, but, umm, cross-examining Mr. Yamauchi about things that may or may not be relevant, most of which have nothing to do with him, I think absent some specific offer of proof, would be inappropriate. But Mr. Scheck assured you he only had a few questions. The problem with the few questions are, if there--the kind of questions that open it up to requiring us on redirect to go through each and every one of these, we will be happy to do that. Clearly Dr. Gerdes is misinformed on some of the things that he has said in here. I am not misinformed. This is what he does for a living. But I think absent some specific offer of proof, I time, the amount on cross that we spent with Renee Montgomery and her proficiency tests, so if we multiply 20 minutes by 40, we could spend days just showing that Dr. Gerdes' representation or his interpretation of this is at best misguided or misinformed. And we will be happy to do that. One of the problems is we don't--this requires a massive compilation of information. Some of these are actual cases and we are hot even sure that they are pending or not, so they may have to have some reduction to protect the names and identities of parties, so if it is a simple proper circumstances that Mr. Scheck--we are not trying to hide anything, but the way this gets done I think is important, and we will do whatever we can to present it fairly, but I think those are the caveats that absent some specific offer of proof at this point it may well be irrelevant. One could imagine Mr. Matheson being cross-examined by each and every one in a sexual serology case that he has ever done. Certainly that was not requested, umm, and I'm sure you would not to have allowed that, and absent a specific offer of proof, you shouldn't allow it in this case either, your Honor. I believe as well, if we are--if there is somebody--a specific offer of proof about that relates to this material, then I believe the Defense should provide us with the additional material that Dr. Gerdes refers to in the six pages that--that he provided us. Somehow we--we have been forced into the position, in terms of reciprocal discovery of this case, that Defense witnesses who are on the witness list for months and months are somehow shielded from providing material because that--I mean, there is a clear pattern to this--that somehow the Defense has been allowed to hold back material because they have convinced you in some way that it would effectively undermine their cross-examination of our witnesses. Or in the alternative, that in spite of the fact that they have expressed their clear intention to call these witnesses, that in--in in camera discussions it is--it is my impression that they have convinced you that even though they have put them on the list, which is a clear manifestation of their intent to call these people, that they have also alternatively told you, well, we are not sure that they are going to testify, because we want to see how well we do on cross-examination, and if we give the Prosecution the material that we intend to cross-examine their witnesses about, we will not be very effective in our cross-examination. And your Court orders clearly reject that proposition, but it is clear that is what is going on in this case, your Honor, so if there is an offer of proof, I would like to see the additional material that Dr. Gerdes has where he says "See analysis discussion for detailed explanation." We don't have that, and--and you know, honestly, if there is an offer of proof, we will need to have that. We had need time to review it so that we can have an intelligent discussion on--about the materials that have been withheld from us for much, much too long.
THE COURT: Mr. Scheck.
MR. SCHECK: Your Honor, I don't know why these things have to take so long. We had a discussion about this. The record is clear. First we got some validation studies. We were able to review those strips. Then in the middle of January we were able to look at more of these strips. These are Dr. Gerdes' notes. What they reflect in the chart, as Mr. Harmon indicated, is that there were these dot-blot strips. At LAPD they record what they see and what they don't see. This is just a chart where Dr. Gerdes indicates this is what is seen. I saw this. This is a contaminant or not a contaminant. Out of an abundance of caution it struck me that these notes should be turned over, it is not a final report, to avoid all this. Umm, the bottom line here is that Dr. Gerdes and Mr. Yamauchi sat there and went over these strips one by one. As I indicated to the Court yesterday, I have no intention of going through these strips one by one at all with Mr. Yamauchi. The only question I'm going to ask him and where I think it is relevant, is I'm going to ask him some general questions about whether or not he thinks the LAPD DNA laboratory has a problem with contamination. And we will hear what he has to say and we'll accept his answer, and it is not my intention to go through these strips with him one by one in terms of the reading, but I just thought out of an abundance of caution I should give them Dr. Gerdes' notes which I'm not entirely sure I am obligated to turn over, but I thought I might as well just to make it clear to them. And this is something that Dr. Gerdes went over with Mr. Yamauchi and explained that there were two different--obviously, as is coming out in the testimony--as to the meaning of dot intensity and a significance that has, whether they are contaminants or not. That is all. So I'm just going to ask him that one general question that I indicated to you before, or the questions along those lines, and I'm not going through each of these strips with him one by one, so I have no intention of doing that, so I think it saves us all the trouble.
THE COURT: Are you going to call Dr. Gerdes to go through them one by one?
MR. SCHECK: That is a different story. Yeah.
THE COURT: All right. Then isn't there--
MR. HARMON: You--
THE COURT: Excuse me, Mr. Harmon.
MR. HARMON: I'm sorry, I thought you were done.
THE COURT: Isn't there a comment in the six pages of notes that this is an analysis that has been prepared?
MR. SCHECK: Yes. In fact, I think the Court saw it. If the Court recalls, we were turned over some, but not all of these strips, so what we turned over to Mr. Harmon is an additional analysis of all the additional strips. Initially we got just some strips. And those comments refer to notes I think the Court has seen that are just general characterization summaries of what is on that chart, but not for everything that is on that chart, because he only had validation studies, and then in January he got additional case work and he hasn't done the additional summaries integrating everything else that he has. We will get that expeditiously. But all the data is there with respect to that. It is just a question of drafting them. But that is what those comments refer to, and I think if the Court goes back and looks at the note, you will see that it already has--
THE COURT: That has already been turned over to the Prosecution?
MR. SCHECK: Which part?
THE COURT: The analysis.
MR. SCHECK: The raw data has. The overall analysis of each of those hasn't been done yet. Do you see what I'm saying? In other words, he got some of the data and the comments that Mr. Harmon is referring to are his--not his final report, because it doesn't refer to all of the data, it only refers to part of the data. What we gave Mr. Harmon are all of the data, all of his calls. It is just a question of characterizing--adding up and summarizing. That is all. It is just a question of making charts. So--but the point is, is that, you know, he has been very busy. We will get--we are working with him on charts and we will get the charts, but none of this is going to be gone into with Mr. Yamauchi.
THE COURT: But there is no report?
MR. SCHECK: No, not--what--how do you define a report? Report would consist of the raw data and the charts? Is there a final report? No, we have indicated to you there is no final report. Was there an interim report based on part of the data? Yeah, we showed that to you.
THE COURT: Have you shown it to the Prosecution?
MR. SCHECK: Excuse me. Mr. Blasier handled--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: I'm sorry. Mr. Blasier told you about the interim report that was in draft form that wasn't a final report, that is what he tells me, not off all the data we gave him which we didn't have.
THE COURT: All right. Let's address the first issue first. Mr. Harmon, what is your comment on the offer of proof as to the questioning of Mr. Yamauchi?
MR. HARMON: Well, questioning is questioning. If--I have no objection--if that is all he is going to ask and we don't--and if he doesn't like the answer, you know, get in a huff and go on with other things or pursue it, that is fine, your Honor. And that is--when I heard that yesterday, I thought if we can get a commitment we can save a lot of time on this, but it has got to be a clear commitment, otherwise we have to talk about subject two as well and I'm anxious to do that as well. So can we move on to that and maybe Mr. Scheck can craft his questions and--
THE COURT: All right.
MR. HARMON: That is no problem, but subject two relates to that, your Honor. Can I talk about that?
THE COURT: Sure.
MR. SCHECK: I just want to indicate to the Court that the board discussion is going to take some time on one of the boards.
THE COURT: Well, we will see.
THE COURT: Do we have those available, by the way, the boards you are going to use with Mr. Yamauchi?
MR. HARMON: They were here. We left them here, I think. Yes, your Honor.
THE COURT: All right.
MR. HARMON: You know, I'm not one to be shocked when I hear what I knew was going on is really going on, but if I heard correctly, they have had discussions with you--I mean, it is clear by the sequence of the reciprocal discovery requests, and I alluded to this the other day with the cut-up notes that we got from Baden and Wolf and Lee, that there is a lot of doctoring going on. And it is clear that this whole manipulation, it is contrived, perverted attempt to withhold what the voters of this state afforded us, and that is the right to a fair trial.
THE COURT: Well, Mr. Harmon, let's not go down that road. We have had this discussion before.
MR. HARMON: We are down that road, your Honor.
THE COURT: Don't interrupt me, Mr. Harmon. The problem we have is that the people who crafted this did so inartfully and they left a lot of loopholes and I'm stuck with it, as are you.
MR. HARMON: Well, and they rely on judges to realize what it meant, your Honor, and what it didn't mean was that they would spend time on charts and say don't write a final report because, once do you that, we've got to turn it over, so let's just take time at 150 bucks an hour making up charts and things and so when you walk into court make sure your report is only dated the day before you walk into court so we can justify withholding it. But I heard Mr. Scheck say that you have reviewed some notes.
THE COURT: No, I haven't reviewed notes. I have been told about notes.
MR. HARMON: Well, I haven't been told about any notes, none of us have, and somehow Dr. Gerdes said, "See analysis discussion for detailed explanation." It doesn't say "The one I haven't written yet." It doesn't say "The informal one." It doesn't say "The casual one." It says, "See it" and we haven't seen it. This is all we saw. It was dated May 22nd and this is the tip of the iceberg. This is going to happen over and over again because we don't have anything from the Defense except cut-up notes. That is all we have. And so I think we need to call a time out to the proceedings, your Honor, respectfully, and review all of this material, because we were entitled to have this before the trial began. We were entitled to consider it--
THE COURT: Mr. Harmon, Mr. Harmon, before we get off onto that discussion, if you recollect, I have issued an order regarding all of these expert's reports, ordering them to be disclosed as soon as they are available. I also gave counsel warning that I would be very wary of the subterfuge of telling an expert witness, out of their normal practice, not to write reports and I in fact cited the one case where I was able to find where counsel were sanctioned for that very procedure, so I am aware of that issue. If it come to pass that there are reports or that conclusions were reached and there was a deliberate manipulation of the process and an instruction to the witness not to prepare a report to avoid discovery, then those witnesses will not testify and that is going to be the sanction. That was an order that I made early this year.
MR. HARMON: Well, I think you are in a good position to say "Tell Gerdes have a nice life," but they have sandbagged us with it.
THE COURT: That is quite possible.
MR. HARMON: I think you heard enough today to do that.
THE COURT: That is quite possible.
MR. HARMON: I would be happy to see a Judge resort to that because it is totally within your judgment to do that, and I think what happened today may haunt them, and we will remind you at every turn--
THE COURT: It could--
MR. HARMON: --that clearly what they told you is they would rather spend time on their charts than writing a final report. He hasn't gotten any other data since January. I know he's a busy man, but he is not too busy to be making charts for them, but he is too busy to write his final report. Don't get me wrong. We would love to have these guys come in. We don't want faceless people's name being injected in here, but to deny us this kind of material so that we can absorb it into our presentation really frustrates the whole purpose behind it, your Honor. So I think we have seen the tip of the iceberg and I'm anxious to see the bottom of it because it is much bigger than any of us appreciate.
MR. SCHECK: Your Honor, I have every confidence that you will have no problem with this. I'm really restraining myself, because these long diatribes and these tags on what witnesses are going to say or do and the quality of them, it is just irrelevant.
THE COURT: Mr. Scheck, Mr. Scheck--
MR. SCHECK: I understand the Court's concern.
THE COURT: I'm a little skeptical for this reason: I expressed this skepticism two months ago, that it is hard for me to believe that expert witnesses of the caliber that I have seen on the Defense witness list haven't prepared reports. It is hard to believe that counsel can proceed to make opening statements and make certain representations as to what is coming in the Defense case without having reports to base those statements on. I'm just telling you I'm a little skeptical.
MR. SCHECK: I understand. I understand what the Court--but we've had meetings with the Court about it, we will explain it, and I think that you will be satisfied. I don't think you will have any problems with it at all, especially with respect to this, and in terms of Dr. Gerdes' data and the charts and what his testimony is going to be in his reports--
THE COURT: But these notes say, "See analysis."
MR. SCHECK: Yes, and we indicated exactly what that was, an analysis of validation studies. There was additional data that he saw in January after that was prepared which he has to integrate and which he hasn't done that. And obviously, given the Court's concern we will have him produce his integration posthaste, but I think it would be very clear, the essence, the notion of a report, we are talking about looking at dots on a strip and what you see is that there is a principal difference here between those people that believe that certain kind of manifestations on these strips represent contamination and those that say we can ignore it, and that is a considerable--that is the principal concern. I think the Court is going to see that coming out. It is no dig secret to anybody and it is no big secret to Mr. Yamauchi, because Dr. Gerdes went and said look at this, look at this, look at this. This is what I think. It is not a secret to Mr. Harmon.
THE COURT: Let's see the boards.
MR. SCHECK: The board that I think we should address first, your Honor, is one that concerns Dr. Lee's examination of the socks and I have some serious problems with this board for a few reasons: The principal reason is that what it depicts isn't true, umm, and first I will state the factual background and then I will state the legal objection.
(Brief pause.)
MR. SCHECK: As the Court recalls, the biggest problem that we've had in this case, and one of the most remarkable and unusual aspects of it, is that we are in the middle of trial before the Defense is even allowed to examine evidence, and there was a point where the Prosecution said that they wanted to send the socks out for EDTA testing to the FBI and we had been trying--they did not refuse to send the socks to Albany. And then as the Court I'm sure distinctly recalls, they said--the interjected, well, can we--they refused to send it to Albany because they were going to send it to the FBI, I believe, for testing on EDTA. And I said in our chambers conference, well, if we can fly Dr. Lee--if we can--can we see it in the morning before the courier takes it out to Washington? And you looked at the Prosecution and said, well, if they can do that, they can do that, and we managed to find Dr. Lee in Seattle at the American Academy of Forensic Sciences conferences and we called him at 1:00 in the morning and we flew him down at 6:00 in the morning and then indicated--went over to the LAPD in order to examine the socks and go over a list of items to be sent to Albany with Mr. Hodgman. And what occurred here is that--and Mr. Hodgman, I'm sure, will verify this. We were told that the courier was going to be flying out at a certain time and there was no--
THE COURT: Mr. Scheck, let's cut to the chase. What is inaccurate about this board?
MR. SCHECK: Well, what is inaccurate, in particular, and I am a witness to this, as is Mr. Blasier and Dr. Lee, and we are the only Defense representatives in the room, you see where it says, "Examines other sock, same gloves," that is not true. He changed his gloves between those. I was watching, Mr. Blasier was watching. Dr. Lee says he did that. That is not true. And just permit me a moment, but you have to--and then there is this business about no lab coat, et cetera. The reason I have to give you the factual background, and Mr. Hodgman will back me up, is we are sitting in the front lobby of the LAPD SID lab waiting to get our chance to see the sock, told that there is this deadline certain when the sock has to be whisked away from Dr. Lee and he can't examine it any more because the courier is going to take it to Quantico, Virginia. And we are waiting and waiting and waiting and waiting and there are big delays where Mr. Harmon is inside there, you know, waiting to make arrangements for to us look at the sock and we have brought our own microscope there. And then finally at a time when it would only, according to their time period, permit us something on the order of half hour to 40 minutes to look at the sock, we are allowed into the room. Mr. Hodgman will be my witness as to that, because we are asking, what's the delay, what's the delay, what's the delay, and he is saying, I don't know, I don't know, I don't know, let's talk about some other matters in the hallway. The reason that that bothers me is that if we had even bothered to ask for a lab coat it was our fear that these guys would take another twenty minutes to get the lab coat and you got 15 minutes to look at the sock. But putting a side the lab coat issue, the real question is he changed his gloves. It upsets me a great deal to even have that in there. That is going to be ultimately, when Dr. Lee testifies, an issue of credibility. Let me cut right to the legal issue. The legal issue, it seems to me, is the following: This board through this witness is not arguably--and this testimony that he didn't change his gloves, they claim, between the examination of both socks, is only relevant on the issue of whether or not there was any cross-contamination of the sock at this point in time or any contamination of the sock. I don't think that they contend that anything that Dr. Lee did to that sock contaminated or created any trace evidence problem or any chain of custody problem.
The Defense attack with respect to when blood got on the sock is all subsequent to this examination anyhow. So in terms of whatever probative value this testimony and this board has through this witness at this time, it is minimal, if any, because that is not the purpose for which this is being offered. The purpose for which this is being offered at this time is in anticipation that Dr. Lee will testify and Dr. Lee will testify about proper procedures for handling, examining items in a laboratory. And that--umm, that is their intention, to impeach him with his testimony when he comes in in advance of his testifying. Now, it seems to me that if they want to raise this factual issue, that is the time to raise it. It is not probative through this witness at this time to anticipate what another witness is going to testify to. And they are not offering it for anything with respect to the chain of custody or contamination with respect to the sock.
THE COURT: So are you raising the spectre that we are going to see both you and Mr. Blasier testify as Defense witnesses?
MR. SCHECK: Oh, what else can we do? They restrict our access to this. It is myself, Dr. Lee and Mr. Blasier who are sitting there looking at it, and believe me, I was watching this because I know what the issues are in this case and I know what proper procedures are and I was watching this like a hawk. So the only witness that can even begin to--I'm in the position where I'm going to have to have to start asking Mr. Yamauchi if he is testifying to this at this time, which has minimum probative value in terms of what the purpose of offering it at this time is, that the only Defense witnesses in the room are lawyers who are going to say this ain't true, so that is a problem. That is a 352 problem, it seems to me, and if this issue is to be visited, it seems to me that the appropriate place to visit it, is that they can ask Mr.--Dr. Lee on cross-examination when he testifies whether he changed gloves. They can call a rebuttal witness to dispute that and we could take it there and that is the appropriate time and place. To get into this now is an undue consumption of time, it is going to be confusing, it is at the wrong point in time in terms of its probative value, and it is going to require, you know, lawyers to be witnesses and to have the lawyer who was sitting right next to Dr. Lee doing this, cross-examine him about it, which is not what we would like to do. So it seems to me that this board and this area of testimony from this witness should be avoided at this time.
THE COURT: Mr. Harmon.
MR. HARMON: Mr. Scheck has a short memory. There were other non-lawyers there. I mean, Dr. Lee is not a lawyer, so he can testify about what he has got to say, but there were--I don't even remember all the people that were there. I have never seen so many people staring at two socks for as long a period of time as we did. It was an interesting session. There is a simple issue that this addresses, and Mr. Scheck skirted around it. One of the implications of all this heightened sense of awareness is they didn't have to do it then. They chose to do it then, and we allowed them to do it. You suggested it and we allowed them to do it. So--but if you take Mr. Scheck's comments at face value, it is--his comments suggest it is going to be sloppy if you don't have a lot of time, and that is clearly the attack they are going to make on Mr. Yamauchi, that he was sloppy because he was in a rush to either incriminate or exonerate, so there is a little having it both ways in those comments. There is a very basic legal issue involved in this. Mr. Scheck mentioned it. This event is part of the chain of custody of those socks. Those socks went to the FBI lab that day. And we don't want anybody undermining the clear unequivocal tests to show that there is no EDTA on those socks, and if there is any quibbling about it, Dr. Lee was there, he handled them, we want to be able to document what he did in case they want to try to put the spin that they have been spinning on our clear unequivocal testing on the socks for EDTA. That we are entitled to demonstrate this, just like we did with 47, 50 and 78. They took things, they are part of the chain of custody of those things, and they are clearly not irrelevant at this point in time. That is the primary reason that they will be presented. So to address Mr. Scheck's concern, Dr. Lee is a non-lawyer. There was a photographer there.
THE COURT: Whose photographs are these?
MR. HARMON: These were taken by somebody from LAPD. I don't remember which--
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: John Taggert. I mean, we had our photographer there because, you know, quite frankly, we get kind of tired of people saying that LAPD doesn't do things well when here is Henry Lee doing things just the way they do. Be careful, you know, you change gloves when you have to, and so here was a chance to show that the much anticipated Defense expert, he does things just the way they do. You be careful. Sometimes you touch things, sometimes you don't. And so that is why we took them, never dreaming that we would be having this intense discussion at this point. You know, Dr. Lee manipulated the heck out of those socks. It is all standard practice and now it is documented. But the real problem that they have is it is an event in the chain of custody of those socks and you will see, when the FBI testimony from the EDTA comes in, how important it is for this jury to appreciate all the hands that those sock went through, just in case they try to put the spin on those unequivocal results that they have been struggling with for so long. So that is the simple proposition that we want to offer this for.
THE COURT: All right. Let me ask you about the conclusion that it makes saying, paren, "Same gloves, same gloves, same gloves" as to photographs 3, 5 and 6, starting from the top. Mr. Harmon, Mr. Scheck takes issue with that, as a matter of fact.
MR. HARMON: Okay. Well, you know, I am in those photos and I wish I could tell you I was paying attention to that. I wasn't. But Mr. Yamauchi and others who were on the photography side of the table, this is their observation, so it is another question of fact for the jury to decide, your Honor.
THE COURT: All right.
MR. HARMON: But that is--I did not notice that, because those socks were kind of boring to watch, and I wasn't paying attention to details, I was a little too close, but that is the representation from the criminalists on the other side of the table.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Who were watching for that reason, so I can verify that again, because we certainly don't want to have that there if it is not true. But this board was prepared based on their observations, so I--I don't have a reason to doubt it, but if you would like me to confirm it, I would be happy to, your Honor.
THE COURT: No, but Mr.--Mr. Scheck indicates that it is his distinct recollection that that--that that did not occur, so to allow you--his argument is going to be that to allow you to have the, paren, "Same gloves" is actually argument and not just a statement of a description of what is there.
MR. HARMON: Well, you know, I mean--I have objected to all these argumentative things. No genotype consistent with O.J. Simpson. That is a conclusion that they want to have a lasting image of.
THE COURT: But that is an undisputed conclusion as to that glove, as to that area on the glove.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: This is a disputed issue.
MR. HARMON: I mean, we have to agree on facts. I mean, I guess we have done this over and over again. You have made us put mixture--are you going to make us put "Mixture" parenthesis up on our results when that is in the our scientific opinion? So I don't blame them, but you know, do they want to testify first and have you resolve it? I don't think there is any legal basis for that, your Honor.
THE COURT: No, I agree with you.
MR. HARMON: That is what the fact finder is entitled to decide, and if we made a mistake on that, they are entitled to think that we deceived them.
THE COURT: All right. If you want to use that, you can cover up the paren--.
MR. SCHECK: Your Honor, your Honor, your Honor--
THE COURT: Don't interrupt me. If you want to use that, you can cover up the paren "Same gloves."
MR. SCHECK: Your Honor, may I be heard in response? Just please be--I know that you have made one ruling. If you will just hear me on why this shouldn't be used at all. Just hear me.
THE COURT: I heard you.
MR. SCHECK: No, no, I mean hear me in response to what he just said, because there is something that I would like to emphasize that I think is relevant, if the Court would just hear me on that.
THE COURT: Make it quick.
MR. SCHECK: There is an indication there "No lab coat or hairnet," okay?
THE COURT: All right.
MR. SCHECK: Now, the point here is going to be that I am going to have to go into with this witness and we are going to have to start calling witness, maybe even the Court is going to have to start issuing statements with respect to what was permitted or not permitted. I mean, I love the way that Mr. Harmon says we allowed them to do it. You ordered it. You ordered it under circumstances that were extreme in the utmost. We are going to have to call Mr. Hodgman to the stand to talk about the delays in that front room while we were waiting to get in to examine this. I mean, that is what we are going to have--that is what we are going to have to get into if this is gone into, all those facts and circumstances, and it seems to me that those are of--of--there is a 352 problem if you want to go into all of that.
THE COURT: Oh, I agree. I agree.
MR. SCHECK: My other suggestion to the Court--my other suggestion to the Court--it is not that I am afraid of them testifying to what happened here at this particular point in time. My real suggestion to the Court is whether the issue as to whether or not the handling of these socks at this particular point in time has anything to do with EDTA issues. You know, that can be resolved when you hear that testimony. And I don't think it does. I think that the whole point of this board at this point in time is that other issue I'm talking about, is to try to do a preemptive impeachment of a witness that hasn't testified yet and that is where the 352 consideration comes in in terms of my having to get into this witness--through this witness all the facts and circumstances surrounding how that examination occurred and why no lab coat was accessible and why that had to be rushed, et cetera, and I'm going to have to ask all these questions of the witness in order to clear that up, some of which he may have knowledge of, some of which he may not, all of which are in good faith and all of which reflect our discussions, all of which I should be entitled to go into with this witness. Now, my suggestion--my suggestion is, that in terms of this area, in terms of the 352 problems, the consumption of time, what the Court would have to instruct the jury with respect to the circumstances of examination, is that if this is really going to be relevant to EDTA, then they can put them on--they can call a witness at another point in the case to testify to this aspect of the chain of custody or the details of this examination. That is my suggestion.
THE COURT: All right. But I think in any lawsuit, I think the plaintiff is entitled to present their case in the manner and order in which they determine. I'm not going to tell them when to call their witnesses--
MR. SCHECK: Well--
THE COURT: --other than my other rulings for discovery violations. All right. Noted. Thank you.
MS. CLARK: Can we take that up now, your Honor?
THE COURT: No, not yet. Let's see the other board.
(Brief pause.)
THE COURT: I take it we won't get to that board before noontime?
MR. HARMON: Oh, no, your Honor.
(Brief pause.)
MR. HARMON: This is the LAPD PCR board? Is there an objection to that?
MR. SCHECK: That is the only other board, yeah.
(Brief pause.)
MR. SCHECK: Now, your Honor, just as a matter of simple courtesy, and in keeping with our past practice, I have been asking Mr. Harmon for a day and a half for a printout of this board which I have received and we have all received on all previous boards, and the photographs that went into this board, and previously we had received all photographs, the boards were made up from photographs that we had received prior to this. Now, I don't believe that we received these photographs, but most importantly, you see the--all of these photographs, I should say. My particular problem has to do with the bottom rung here and that is "Piper tech product gel electrophoresis." Just in our experience taking two tours of the lab, the DNA lab, is that the first time that we took a tour with Mr. Yamauchi and we were taken into the room where they did the product gel electrophoresis, which incidentally is back in the Parker Center--back in piper tech. They go to Parker Center and they take the amplified PCR out and they bring it back into piper tech into I think they call it an equipment room. They changed the set-up of where they did the PCR product gels in a different place, you know, looks different, all cleaned up. And I think these photographs are of that new area where they did it, not of the original area that we first saw which I take it is where the actual PCR product gel electrophoresis analysis was done in this case.
THE COURT: Mr. Harmon.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: I'm not sure what it is cleaned up with respect to, with respect to June 13th or 14th and 15th? I don't know how to address that. They have been there. They have taken their own pictures. They can put on their own pictures, if you allow Dr. Gerdes to testify, which I'm sure you won't. I don't know what to say, your Honor. Shall we have like amplicons marching around there?
THE COURT: Mr. Harmon, you know, as much as I enjoy your style, I don't know if you were watching the jury, but when you asked the question about can amplicons suddenly turn left, did you see the look on the juror's faces when you said that?
MR. HARMON: You know, I'm old enough to appreciate what I do, and I appreciate your observation, your Honor, and I understand. I appreciate the--
THE COURT: It has about the same effect sometimes.
MR. HARMON: But sometimes I'm--I'm speechless.
THE COURT: The objection is that it is not an accurate photo of the location where the testing took place. Any comments on that?
MR. HARMON: That that is not where the testing in this case took place?
THE COURT: That is how I understood the objection.
MR. HARMON: We think that it is. If it is wrong, then--
MR. SCHECK: It is wrong.
MR. HARMON: --I would be happy--
MR. SCHECK: He should talk to his witness.
MR. HARMON: I make mistakes all the time, your Honor. If that is not the right photograph, umm, I would be happy to put the right one up there. But we have been there, we have walked through it.
THE COURT: Has your witness seen this and told you this is the same place?
MR. HARMON: That is him in the photos.
MR. SCHECK: No, no, bottom photos.
THE COURT: Bottom one.
MR. HARMON: We went around with him. I was with him that day.
THE COURT: If you are offering that it is accurate--
MR. SCHECK: Let me just try to help him out a little bit. The first time we went through it was in a different location in a different place in a different set-up within that room. The second time that we took the tour they said we have changed the area that they did it, they gave it a wider space, they cleaned it up, they put it in a different place. My strong suspicion is it is in the second location, not the first location where he actually did the product gel in this case. It is a simple enough matter to ask his own witness what that is a picture of. I'm fairly confident--and certainly I have never seen these pictures before. I was supposed to see them, right?
THE COURT: Where is Mr. Yamauchi? All right. Well, I have to give the court reporter a break, so we will take a court reporter break and get him down here and have him take a look at the pictures, and hopefully we will get some time in in front of the jury this morning. All right. We will take 15.
(Recess.)
THE COURT: Back on the record in the Simpson matter. Do we need Mr. Cochran? Mr. Scheck?
MR. SCHECK: I'm sorry?
THE COURT: I see Mr. Cochran is not here. Are you ready to proceed?
MR. SCHECK: Yes.
THE COURT: Here is Mr. Shapiro. Is Mr. Cochran outside, Mr. Shapiro?
MR. SHAPIRO: Yes, your Honor. Do you need him?
THE COURT: I would like to start.
MR. SHAPIRO: We can start.
THE COURT: All right. Let's have the jurors, please.
(Brief pause.)
THE COURT: And Mr. Harmon, this is your witness?
MR. HARMON: Yes, your Honor.
(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. Mr. Harmon, you may call your next witness.
MR. HARMON: Yes, your Honor. The Prosecution calls Collin Yamauchi.
Collin Yamauchi, called as a witness by the People, was sworn and testified as follows:
THE COURT: All right. Mr. Yamauchi, 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. YAMAUCHI: I do.
THE COURT: Please have a seat on the witness stand. And please state and spell your name.
MR. YAMAUCHI: Collin Yamauchi. First name C-O-L-L-I-N. Last name Y-A-M-A-U-C-H-I.
THE COURT: Mr. Harmon.
MR. HARMON: Thank you, your Honor. Ladies and gentlemen.
DIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Mr. Yamauchi, who do you work for now?
MR. YAMAUCHI: The Los Angeles Police Department.
MR. HARMON: In what capacity?
MR. YAMAUCHI: I'm a criminalist.
MR. HARMON: How long have you worked for the Los Angeles Police Department as a criminalist?
MR. YAMAUCHI: For five years now.
MR. HARMON: Okay. What are your present duties?
MR. YAMAUCHI: I'm assigned to the serology unit.
MR. HARMON: Could you describe what that entails?
MR. YAMAUCHI: Serology is the unit that specializes in body fluids, most commonly blood and those found in sexual assaults.
MR. HARMON: How long have you been assigned to the serology unit?
MR. YAMAUCHI: I've been the whole time that I have been at LAPD in the serology unit.
MR. HARMON: For five years? Do you presently perform a form of DNA typing on forensic samples?
MR. YAMAUCHI: Yes.
MR. HARMON: What kind of test do you perform?
MR. YAMAUCHI: The PCR DQ-Alpha.
MR. HARMON: And prior to using PCR DQ-Alpha did you also perform other forms of serological testing?
MR. YAMAUCHI: Yes, I did. I did conventional serology.
MR. HARMON: And do you do that to this date as well as the PCR DQ-Alpha?
MR. YAMAUCHI: You mean simultaneously?
MR. HARMON: Who, not simultaneously. Are you also performing conventional serology on evidence to this date?
MR. YAMAUCHI: Well, once in a while, yes.
MR. HARMON: Let's go back, if you will, to your undergraduate education. Do you have an undergraduate degree?
MR. YAMAUCHI: Yes, I do.
MR. HARMON: Where did you obtain that?
MR. YAMAUCHI: From the California State University Long Beach.
MR. HARMON: What year?
MR. YAMAUCHI: I graduated in `86.
MR. HARMON: Okay. And could you describe your major?
MR. YAMAUCHI: My major is in biology.
MR. HARMON: And let's talk about your undergraduate education for a bit. Okay? And specifically I would like to briefly discuss or describe the kind of courses that you took to obtain the degree in biology that relate in some way to the forensic DNA typing and conventional serology that you perform on evidence samples. Would you do that?
MR. YAMAUCHI: Umm, oh, just list off courses that I have taken?
MR. HARMON: Sure.
MR. YAMAUCHI: Pertinent to--okay. Cellular biology, that would deal with molecular components of the cell, and talk about the genetics also. I have also taken genetics, and there is a number of battery of courses that--well, right now offhand I can't remember them all.
MR. HARMON: Okay. After you graduated from college, what did you do?
MR. YAMAUCHI: I worked three and a half years at ICN Radiochemicals.
MR. HARMON: What sorts of jobs did you perform there?
MR. YAMAUCHI: I was a quality control chemist.
MR. HARMON: Can you describe what that entails?
MR. YAMAUCHI: By--that entails analyzing chemicals for Radiochemicals and chemical purity. These chemicals are often used in, for example, DNA research. There would be the radioactive probes, the components of that, that people use in even like RFLP research and things like that.
MR. HARMON: And what sorts of actual--can you describe the actual hands-on work that you did when you were working there?
MR. YAMAUCHI: Well, it is technical, but I can name names. Some of the things I did was nick translation and random primer labeling--
MR. HARMON: I'm sorry--
MR. YAMAUCHI: --as well--
MR. HARMON: --did you finish?
MR. YAMAUCHI: Well, no. That is fine.
MR. HARMON: Do you wear gloves?
MR. YAMAUCHI: Well, when you are working with radiation it is very important to wear gloves and you have to wear gloves and change them constantly.
MR. HARMON: Wear a lab coat?
MR. YAMAUCHI: Yes.
MR. HARMON: Have to be careful about what you touched?
MR. YAMAUCHI: Definitely.
MR. HARMON: At some point when you worked at ICN did you take some molecular classes at Bethesda research laboratories?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Could you describe those classes, please?
MR. YAMAUCHI: Back then I took a class, it had to do with molecular cleaning, which was kind of a process that is used to make more DNA that they were more used to using back in the past before PCR really got its start.
MR. HARMON: Did you have to wear gloves with that?
MR. YAMAUCHI: Yes.
MR. HARMON: And be careful?
MR. YAMAUCHI: Of course.
MR. HARMON: What did you have to be careful about when you were doing those sorts of jobs or assignments?
MR. YAMAUCHI: Well, in a different way, when working with radios, you don't want to contamination yourself, obviously, but you can also cross-contaminate the different types of chemicals that you are working with, so to a certain extent both names are very important as far as wearing gloves and keeping good solid practices and procedures.
MR. HARMON: Okay. You mentioned the term cross-contamination. You know we are going to be talking about that quite a bit, so that is something that is not unique to the forensic application of DNA typing?
MR. YAMAUCHI: No, it is not.
MR. HARMON: That is a standard laboratory practice in your career before you joined the police department?
MR. YAMAUCHI: As far as wearing gloves and changing them, yes.
MR. HARMON: And being careful?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. When did you actually join the Los Angeles Police Department, do you recall the month and the year?
MR. YAMAUCHI: And I believe 1990.
MR. HARMON: Okay. And after you joined the police department did you continue to take courses in your area of interest?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Both through the police department and elsewhere?
MR. YAMAUCHI: Well, they were all through the police department or through the lab, yeah.
MR. HARMON: Okay. Why don't you describe some of them.
MR. YAMAUCHI: Umm, well, could I refer to my CV?
MR. HARMON: Sure. While you are looking that up, you are not a peace officer; is that right?
MR. YAMAUCHI: No, I'm a civilian.
MR. HARMON: Okay.
(Brief pause.)
THE COURT: Mr. Scheck, do you have a copy of the CV?
MR. SCHECK: Perhaps not the latest version.
THE COURT: Mr. Scheck, do you want to just take a look at what Mr. Yamauchi has.
MR. SCHECK: Yes. Thank you very much.
(Brief pause.)
THE COURT: All right. Mr. Harmon.
MR. HARMON: Thank you, your Honor.
MR. HARMON: Could you, from the earliest to the most recent, could you describe the kind of courses which lend themselves to the expertise that you have in the area of forensic DNA typing as well as conventional serology?
MR. SCHECK: Objection. Assumes a fact not in evidence yet.
THE COURT: Overruled.
MR. YAMAUCHI: Okay. I started out, umm, taking a forensic serology class in May of 1990 and that was at the California Criminalistics Institute in Sacramento, California. That is a part of the Department of Justice. And, umm, in July of 1991 I had a zone electrophoresis class also at the California Criminalistics Institute up at the DOJ. I have--I have been to a crime scene investigation class also through the California Criminalistics Institute and I have received training at a place called AGTC in Denver, Colorado, for immunoglobulin allotyping training.
MR. HARMON: Could you describe what that is, just briefly?
MR. YAMAUCHI: That--that is--that is kind of a fancy name for something that is very similar to the ABO system, except it gives you more information.
MR. HARMON: An AGTC, is that a private laboratory that regularly conducts training sessions?
MR. YAMAUCHI: Yes. As far as I know, yes.
MR. HARMON: Okay. Go ahead. I didn't mean to interrupt you.
MR. YAMAUCHI: And in September of `91 to January of `92 I took a class through I believe it was Cal State Fullerton and it was held at the Orange County Sheriff's crime laboratory and that dealt with the forensic application of molecular biology.
MR. HARMON: Okay. Now, is that the first forensic class that you took with respect to DNA typing?
MR. YAMAUCHI: Forensic? Yes--yeah, I believe so.
MR. HARMON: And the Orange County crime lab has their own DNA lab; is that correct?
MR. YAMAUCHI: Yes, they do.
MR. HARMON: Are those the people that conducted the class?
MR. YAMAUCHI: No. This was held by a professor from California State Fullerton.
MR. HARMON: Okay. Do you recall whose name--what his name was?
MR. YAMAUCHI: I believe Frommson.
MR. HARMON: Okay. Why don't you take up from there then, the next classes that you took.
MR. YAMAUCHI: In--well, actually in January of `92 I had an isoelectric focusing class also at the California Criminalistics Institute, and in August of `93 I went to forensic PCR amplification training workshop and that is put on by Roche molecular systems who had the patent and they still do have the patent on PCR.
MR. HARMON: Are they the ones that have developed, manufactured and produced the kits that are used for PCR DQ-Alpha typing?
MR. YAMAUCHI: Yes.
MR. HARMON: Where was that course conducted?
MR. YAMAUCHI: Umm, that was at Alameda, California, at that time.
MR. HARMON: Okay. How many hours did that class or did that class consist of?
MR. YAMAUCHI: About 64.
MR. HARMON: And did you get any sort of credits for that?
MR. YAMAUCHI: There was a certification of completion, yes.
MR. HARMON: So you got some sort of certificate?
MR. YAMAUCHI: Yes.
MR. HARMON: Did that entail hands-on work?
MR. YAMAUCHI: Yes, it did.
MR. HARMON: Can you describe that, please?
MR. YAMAUCHI: Well, we went through the PCR process with DQ-Alpha, as well as other markers which I--I don't do yet, but we are working on getting that on line, and that would be D1S80, which was discussed earlier, and also the polymarker system.
MR. HARMON: Who are the instructors in that course?
MR. YAMAUCHI: Well, we had Henry Erlich talked for a while, we had Jennifer Mihalovich from Ed Blake's lab came and talked, Judy Allen I believe is her name was the coordinator of the class. And let's see. Brian Wraxall I believe was there to talk for a little while at the end also.
MR. HARMON: Okay. How many students were in the group?
MR. YAMAUCHI: Somewhere between 15 and 20.
MR. HARMON: And were these people from all over the country?
MR. YAMAUCHI: Yes.
MR. HARMON: Did you have to take any sort of exam? You mentioned you got a certificate. Was there an exam involved, too?
MR. YAMAUCHI: I believe there was.
MR. HARMON: Okay. Do you continue to keep abreast of developments in forensic DNA typing as well as forensic--forensic serology?
MR. YAMAUCHI: Yes. I'm a member of the California association of criminalists, and one of the things that they have associated with that are monthly study group meetings and I try to attend those as much as possible.
MR. HARMON: Okay. Do you also read scientific literature in the areas that you are interested in?
MR. YAMAUCHI: As far as pertaining to the case work I do.
MR. HARMON: Sure.
MR. YAMAUCHI: Of course, yeah.
MR. HARMON: What journals do you read?
MR. YAMAUCHI: Well, there is a number of them. Just--specifically?
MR. HARMON: Sure.
MR. YAMAUCHI: Well, I have read articles pertaining directly to the PCR process. I can't remember all the names and the titles and the abstracts and that.
MR. HARMON: When did you first become exposed to PCR DQ-Alpha typing at the Los Angeles Police Department lab?
MR. YAMAUCHI: First become exposed?
MR. HARMON: Yes.
MR. YAMAUCHI: Could you clarify that?
MR. HARMON: When did you first become aware that the--that the laboratory was going to do PCR DQ-Alpha typing?
MR. YAMAUCHI: Well, from the day I started there was talk as to implementation of the DNA technologies and at first they were talking about RFLP and that was what was of interest. And later on, as the PCR technology developed and it seemed more feasible, that was talked about more and more.
MR. HARMON: And that is about the same time you started taking the classes that had to do with PCR typing?
MR. YAMAUCHI: I believe they were talking about it before that.
MR. HARMON: Okay. How did it come about that that became part of your assignment, PCR typing?
MR. YAMAUCHI: Well, I believe I--because of my background working at ICN I had some experience working with DNA.
MR. HARMON: And when did that happen, the decision to have you do some PCR typing?
MR. YAMAUCHI: To learn and be trained? It must have been sometime in 1993.
MR. HARMON: Okay. When did you first begin using just in-house PCR DQ-Alpha typing?
MR. YAMAUCHI: When did I do the--my first case or--
MR. HARMON: When did you just begin your handling of PCR DQ-Alpha typing at LAPD in any form?
MR. YAMAUCHI: I'm sorry, I don't have the specific date to that, but it would have been in 1993 sometime.
MR. HARMON: Early or late `93?
MR. YAMAUCHI: Probably mid.
MR. HARMON: Okay. And were you the first person in the laboratory to begin implementing PCR DQ-Alpha typing?
MR. YAMAUCHI: No.
MR. HARMON: Who was?
MR. YAMAUCHI: Erin Riley.
MR. HARMON: And when did that begin?
MR. YAMAUCHI: I'm not specifically sure.
MR. HARMON: How long before you began implementing PCR was it that she had begun?
MR. YAMAUCHI: Well, we were assigned the project together, except she was given more of the responsibilities because she had training from the FBI, and I'm not real sure when that was, but it was prior to `93.
MR. HARMON: Now, what--will you describe who Erin Riley is and what her specific assignment and title is within the laboratory?
MR. YAMAUCHI: I'm sorry. She is also another criminalist last working in the serology unit. We work together. She is also a criminalist 2.
MR. HARMON: Okay. Had the LAPD laboratory, not you, but the laboratory itself, begun accepting case work before you began accepting cases?
MR. YAMAUCHI: Case work as to the PCR process?
MR. HARMON: Yes.
MR. YAMAUCHI: Well, yes, we did in a way. We did accept cases and, umm, after conventional screening they may or may not have been shipped off to different laboratories that did have the technology on line.
MR. HARMON: Okay. And what was--will you describe your first exposure to PCR typing in the laboratory. I'm not talking about case work, I mean the first actual case work you had within the laboratory, aside from the classes just describe for the jury.
MR. SCHECK: Object to the term "Exposure" as vague.
THE COURT: Sustained. Do you want to rephrase that, please.
MR. HARMON: When did you first begin performing PCR DQ-Alpha analysis, not in case work, just in any form within the laboratory?
MR. YAMAUCHI: PCR--once again, that would have been sometime in 1993. I don't have the specific date.
MR. HARMON: Okay. What did you do prior to that with respect to PCR DQ-Alpha typing before you actually began performing tests?
MR. YAMAUCHI: I did conventional serology.
MR. HARMON: Okay. But with regard to PCR DQ-Alpha, what--did you just pick it up one day and start doing it?
MR. YAMAUCHI: Did I--I'm sorry, I don't--
MR. HARMON: Did you study protocols before you began performing the tests?
MR. YAMAUCHI: Yes, of course.
MR. HARMON: Okay. Would you tell us how you began your implementation period with PCR DQ-Alpha.
MR. YAMAUCHI: Well, I went over the user guide that is provided by Roche molecular systems and looked through that and this would have been prior to--to my even going to the class. But Erin Riley had been to the class, and so I had that information available to me, and I went over those protocols and procedures and with Ms. Riley's help I went through and tried to run the strips.
MR. HARMON: Okay. And over how long a period did this implementation last for you before you began doing case work?
MR. YAMAUCHI: Between the parts where I was studying and everything? Six to eight months.
MR. HARMON: And was it in that period that you took any of these classes as well?
MR. YAMAUCHI: Yes.
MR. HARMON: And which of the classes, the one at Roche?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Before you--do you remember when you actually began or accepted your first case for PCR DQ-Alpha typing?
MR. YAMAUCHI: I believe I have it written somewhere.
MR. HARMON: Sure, if it would help to refresh your recollection if you've got it written down somewhere.
MR. YAMAUCHI: The first case was assigned to me in October of `93 and the first case for PCR that I completed was in November of `93.
MR. SCHECK: Your Honor, may I just look at the note that he is looking at?
THE COURT: Yes.
(Brief pause.)
THE COURT: Mr. Harmon.
MR. HARMON: Thank you, your Honor.
MR. HARMON: The jury has seen some of these strips, okay, and what I want to do is I want you to describe about how many strips or tests that you actually performed using the PCR DQ-Alpha system before you accepted your first case? Do you have any idea?
MR. YAMAUCHI: How many strips? Well over a hundred. I would have to go back and count, though.
MR. HARMON: You could, if you had to?
MR. YAMAUCHI: Yes.
MR. HARMON: Go back and count? In terms of conventional serology electrophoresis tests, can you give the jury some sense of how many times you performed those sorts of tests on evidence samples?
MR. YAMAUCHI: Electrophoresis? Hundreds of times.
MR. HARMON: Okay. Have you ever testified as an expert in the field of conventional serology, electrophoretic typing?
MR. YAMAUCHI: Yes.
MR. HARMON: How many times?
MR. YAMAUCHI: Oh, over twenty.
MR. HARMON: Over how long a period of time?
MR. YAMAUCHI: The five years I have been a criminalist.
MR. HARMON: Do you take any sort of proficiency tests?
MR. YAMAUCHI: Yes. We are--we run samples from CTS and College of American Pathologists.
MR. HARMON: Okay. Now, that is for the PCR DQ-Alpha system?
MR. YAMAUCHI: Yes, and they have--they also have for conventional serology.
MR. HARMON: And have you taken any--I'm sorry. Have you taken conventional serology proficiency tests?
MR. YAMAUCHI: I have once.
MR. HARMON: Okay. How many times have you taken proficiency--
MR. SCHECK: Objection. 1054 objection as to the conventional serology tests.
THE COURT: Overruled.
MR. HARMON: How many proficiency tests have you taken which depend on the PCR DQ-Alpha marker?
MR. YAMAUCHI: I would say approximately eight or nine.
MR. HARMON: Over how long a period of time?
MR. YAMAUCHI: Well, the year and a half or so that I have been doing PCR.
MR. HARMON: And did you actually take any proficiency tests before you accepted your first case work in October of `93?
MR. YAMAUCHI: I might have. I would have to go back and check the records.
MR. HARMON: Now, you mentioned two organizations. CTS--
MR. YAMAUCHI: Yes.
MR. HARMON: --is that the collaborative testing service?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And when you take those tests, do you know it is a proficiency test?
MR. YAMAUCHI: Yes.
MR. HARMON: Do you know what the answer is ahead of time?
MR. YAMAUCHI: No, I don't.
MR. HARMON: When you take the CAP, that is the College of American Pathologists?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Do you know the answer ahead of time when you take that test?
MR. YAMAUCHI: No.
MR. HARMON: Do you know it is a proficiency test?
MR. YAMAUCHI: Yes, I do.
MR. HARMON: Okay. Have you ever been graded as having made a mistake in any of those proficiency tests?
MR. YAMAUCHI: No.
MR. HARMON: Does that mean you couldn't make a mistake?
MR. YAMAUCHI: Does that--well, no, it doesn't.
MR. HARMON: Have you ever testified as an expert in a court in the field of forensic PCR DQ-Alpha typing?
MR. YAMAUCHI: Yes.
MR. HARMON: How many times?
MR. YAMAUCHI: Twice.
MR. HARMON: In what courts? In this county?
MR. YAMAUCHI: Yes.
MR. HARMON: Have there been times--have there ever been times when you have attempted to testify but have not been found qualified to testify in the field of PCR DQ-Alpha typing?
MR. YAMAUCHI: No.
MR. HARMON: When were those two times?
MR. YAMAUCHI: I would have to go back and check the records.
MR. HARMON: Okay. Can you give us a ballpark?
MR. YAMAUCHI: Last year.
MR. HARMON: Now, in the tests that you performed, the PCR DQ-Alpha testing, have you ever excluded anyone who was suspected of having committed a crime?
MR. YAMAUCHI: Yes.
MR. HARMON: Any idea how many times?
MR. YAMAUCHI: Well, offhand I can think of at least once, but there might have been more.
MR. HARMON: How many strip test samples have you subjected to the PCR DQ-Alpha test as you sit there today?
MR. YAMAUCHI: I'm not sure. I would have to go back and count them all.
MR. HARMON: Can you give us a ballpark figure?
MR. YAMAUCHI: Well, 500, a thousand, maybe even more than that. I don't know.
MR. HARMON: Do you have any idea how many actual cases you have worked on for PCR DQ-Alpha typing?
MR. YAMAUCHI: I believe around sixty.
MR. HARMON: Does the Los Angeles Police Department have a lengthy written protocol for the performance of PCR DQ-Alpha testing?
MR. SCHECK: Objection, characterization.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Does the Los Angeles Police Department scientific investigations have a written PCR protocol?
MR. YAMAUCHI: Yes. We have a set of guidelines for PCR practices.
MR. HARMON: Okay. And does the protocol include other PCR markers in addition to DQ-Alpha?
MR. YAMAUCHI: I believe so at this time.
MR. HARMON: Okay. And are you familiar with the Los Angeles Police Department scientific investigation written protocol?
MR. YAMAUCHI: Yes, I'm familiar with it.
MR. HARMON: Is it based on the Roche DQ-Alpha user guide?
MR. YAMAUCHI: Yeah, many parts of it are very similar.
MR. HARMON: We are going to talk about some events in June and then move on pretty shortly, but I'm going to ask you questions about PCR DQ-Alpha tests you performed on evidence in this case in the middle of June, okay? But before we get to that, I would like to ask you generally, when you performed the tests that you will be testifying about shortly on the evidence samples in this case, did you perform them in accordance with the Los Angeles Police Department SID written protocol for PCR DQ-Alpha typing?
MR. SCHECK: Objection, assumes fact not in evidence.
THE COURT: Overruled.
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Let's go back to June 13, 1994. What hours were you working those days?
MR. YAMAUCHI: It was either 7:00 to 3:30 or 7:30 to 4:00.
MR. HARMON: Okay. Do you recall late in your workday on June 13th having a conversation with Greg Matheson about what you know this case is about?
MR. YAMAUCHI: Yes.
MR. HARMON: And what did Mr. Matheson discuss with you?
MR. YAMAUCHI: He asked me if I--
MR. SCHECK: Objection, hearsay.
THE COURT: Sustained.
MR. HARMON: It is not offered for the truth of the matter, your Honor.
THE COURT: Sustained.
MR. HARMON: Did you have a discussion with Mr. Matheson about this case?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: And based on this case--and did you consider what Mr. Matheson discussed with you late on June 13th in deciding what tests to perform ultimately in this case?
MR. YAMAUCHI: Yes.
MR. HARMON: Did you actually do anything with respect to this case on June 13th?
MR. YAMAUCHI: No, I did not.
MR. HARMON: Other than the conversation with Mr. Matheson?
MR. YAMAUCHI: Yes, other than that conversation.
MR. HARMON: Do you remember what time you came to work on June 14th?
MR. YAMAUCHI: June 14th?
MR. HARMON: Yes.
MR. YAMAUCHI: Oh, 7:00 or 7:30.
MR. HARMON: Okay. And did you have another discussion with Mr. Matheson?
MR. YAMAUCHI: I believe I talked to him in the morning, yes.
MR. HARMON: Now, were--you are in the serology division, okay. Do you have a separate room within the laboratory?
MR. YAMAUCHI: Serology?
MR. HARMON: Yes.
MR. YAMAUCHI: Yes. There is a serology unit area.
MR. HARMON: Okay. And is that something that there is security to get in, some sort of security device?
MR. YAMAUCHI: We have to use our access cards.
MR. HARMON: And do you understand there is actually a printout that shows the comings and goings of people if they use the access card?
MR. YAMAUCHI: Yes.
MR. HARMON: Have you seen those things occasionally, the printout?
MR. YAMAUCHI: Yes, I have.
MR. HARMON: Where was Mr. Matheson's office at that time with respect to serology?
MR. YAMAUCHI: At the time he was serology supervisor. His office would be within the serology unit.
MR. HARMON: Did you talk about this case?
MR. YAMAUCHI: Yes.
MR. HARMON: What did you discuss with Mr. Matheson?
MR. YAMAUCHI: (No audible response.)
MR. SCHECK: At this point a hearsay objection.
THE COURT: Sustained.
MR. HARMON: It is to explain future conduct. It is not offered for the truth of the matter, your Honor.
MR. SCHECK: Maybe if I could get an idea of what he intends--
THE COURT: Why don't you confer with counsel.
MR. SCHECK: I'm sorry?
THE COURT: Why don't you confer with counsel.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SCHECK: One second.
THE COURT: All right.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: No problem.
THE COURT: Withdraw your objection?
MR. SCHECK: Based on what he told me.
THE COURT: Proceed.
MR. HARMON: I'm going to turn the clock back a day then and ask you let's go back to June 13th, the end of the day. You have a discussion with Mr. Matheson about the case?
MR. YAMAUCHI: Yes.
MR. HARMON: What did Mr. Matheson tell you at that time about the case?
MR. YAMAUCHI: He asked me if I would want to work on this case. He is not sure of all the aspects, but he believes that it could involve sexual assault, as well as blood evidence and conventional and quite possibly PCR testing.
MR. HARMON: Okay. What else came--anything else come up in that conversation?
MR. YAMAUCHI: I can't remember back all that well.
MR. HARMON: Okay. Let's talk about the next morning. You go in and you are talking to Mr. Matheson again. Did you have a more specific discussion with him at that point?
MR. YAMAUCHI: Yes, I believe so. He probably had more information then, so we would talk more.
MR. HARMON: And could you tell us what you and Mr. Matheson discussed at that point?
MR. YAMAUCHI: At that point he--he seemed to think that we--we had evidence that would need certain types of specific testing, and I recall him talking possibly doing something that would be fast, like an ABO test, and we discussed that a little bit. And I said, well, ABO has, umm, limited power of separating things out, because, for instance, a type o can be approximately half of the population, and so because that system is kind of weak in that respect, we discussed the possibility of using PCR DQ-Alpha, because that would have a little bit better chance of sorting things out into finer groups.
MR. HARMON: And you mentioned that speed was somehow of importance. Why was that?
MR. YAMAUCHI: I believe at the time there were reasons that I wasn't quite aware of or made aware of, but they had to do with the investigative reasons why the detectives would need results rather quickly.
MR. HARMON: During the discussion with Mr. Matheson were specific items of evidence talked about?
MR. YAMAUCHI: He referred me to Dennis Fung to discuss what items of evidence would be good to pick and choose for analysis.
MR. HARMON: Was anyone else there in serology at the time you had this conversation with Greg Matheson?
MR. YAMAUCHI: Well, I can't remember back all that well who was there and who wasn't.
MR. HARMON: Is that an area where many people work?
MR. YAMAUCHI: Yeah, there is. Usually the serology unit members are always in and out.
MR. HARMON: And did you have this conversation with Mr. Matheson in his office or out in the laboratory work area?
MR. YAMAUCHI: One or the other.
MR. HARMON: Okay. As a result of that conversation--strike that. Was Dennis Fung a party to this conversation?
MR. YAMAUCHI: I believe I first talked to Dennis back in the evidence processing room.
MR. HARMON: Before or after this conversation?
MR. YAMAUCHI: It would be afterwards.
MR. HARMON: So was Dennis Fung present while you were having this conversation with Greg Matheson?
MR. YAMAUCHI: I'm not sure.
MR. HARMON: After the discussion that you have just mentioned to us, did you go back to find Dennis?
MR. YAMAUCHI: Yes. I--that would--that would have been the next thing on my mind, to look for Dennis to go discuss what stains to pick out and analyze.
MR. HARMON: Is that what you did?
MR. YAMAUCHI: Yes.
MR. HARMON: Where did you find him?
MR. YAMAUCHI: I believe I must have--well, let's see here. Yeah, I would have talked to him in the evidence processing room, because that is where he would be discussing the evidence with me.
MR. HARMON: And do you recall about how long after the conversation with Greg Matheson it was that you found Dennis Fung and talked to him about the case in the evidence processing room?
MR. YAMAUCHI: It has got to be less than half an hour, fifteen minutes--less than fifteen minutes.
MR. HARMON: Okay. Do you recall if anyone else was present when you had a conversation that you will be telling us about this afternoon with Dennis Fung?
MR. YAMAUCHI: This afternoon? What was that?
MR. HARMON: Sorry. It was a bad question. Can we take the break now, your Honor, before we move on?
THE COURT: Yes. Why don't you ask him that last question.
MR. HARMON: Sure.
MR. HARMON: Was anyone else present when you had the conversation with Dennis Fung about this case?
MR. YAMAUCHI: No.
MR. HARMON: Okay.
THE COURT: All right. Ladies and gentlemen, we are going to take to our recess for the morning session. Please remember all of my admonitions to you. Don't discuss this case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. Counsel, we will stand in recess until one o'clock. And let me see Miss Clark and Mr. Cochran.
(A conference was held at the bench, not reported.)
(At 12:00 P.M. the noon recess was taken until 1:00 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; WEDNESDAY, MAY 24, 1995 1:00 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present with his counsel, People are represented. The jury is not present. Counsel, anything we need to take up?
MR. SCHECK: I don't know that we've resolved the last set of pictures.
MR. HARMON: The purpose of the board was to show how you do PCR. It is correct that the product gel setup is around the corner on a little lab table from where it's shown in the picture, but that's not--the purpose isn't to replicate the exact conditions, but it's to educate the jury on the different steps of the PCR process, so make sure to tell the jury this is not the exact conditions that the test was performed under in this case, your Honor.
THE COURT: All right. Let's have the jurors.
MR. SCHECK: I take it, your Honor--you're nodding your head. So--
THE COURT: As long as it's not a misrepresentation as to what actually occurred.
MR. SCHECK: Well, I think that my representation to you before was the correct one, that it is in a different location and it was configured differently. And we did take a tour and we did see it, and there will be testimony that it looked differently and, you know, was a more cramped space and a different space than the one depicted. So what I'm saying to you is correct, and I'd just like to--I mean it's up to the Court. Those are photographs I never saw, and what I'm saying to you is that it's all cleaned up.
THE COURT: Well, there are--they'll use that at their hazard. Let's have the jurors.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Be seated. Mr. Yamauchi, would you resume the witness stand, please.
Collin Yamauchi, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: Let the record reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Mr. Yamauchi, good afternoon, sir.
MR. YAMAUCHI: Good afternoon.
THE COURT: You are reminded, sir, you are still under oath. Mr. Harmon, you may continue with your direct examination.
MR. HARMON: Thank you, your Honor.
DIRECT EXAMINATION (RESUMED) BY MR. HARMON
MR. HARMON: We were about where you were having a discussion with Dennis Fung in the evidence processing room, and I think you said you don't recall if there was anyone else there?
MR. YAMAUCHI: No. I don't recall.
MR. HARMON: Okay. What did you discuss with Dennis Fung that relates to the testing that you ultimately did in this case?
MR. YAMAUCHI: Well, we discussed what stains would be appropriate to analyze, and he seemed to have the best idea being as how he investigated the crime scene. So I took the suggestions that he made and eventually sampled and analyzed those particular stains.
MR. HARMON: Okay. Which samples did he direct your attention to?
MR. YAMAUCHI: Okay. Let's see. On Tuesday--let me refer to my notes.
MR. HARMON: Sure. You have notes that reflect the conversations that would help refresh your recollection?
MR. YAMAUCHI: I took notes on our initial conversation, yes.
MR. HARMON: Sure. And would that help you remember what happened?
MR. YAMAUCHI: Yes, it would.
MR. HARMON: Sure. Why don't you do that, and let us know when you're done.
MR. SCHECK: Your Honor, may I approach to see what he's referring to?
(Brief pause.)
THE COURT: Proceed.
MR. HARMON: Okay. What did you and Mr. Fung discuss?
MR. YAMAUCHI: Well, at that time, he had stains with photo numbers on them. They were not yet assigned item numbers. So he told me about 117, 115, 114, 113 and 112. At this time, these were photo numbers.
MR. HARMON: Could you explain to the jury--we've had a lot of testimony about that, but could you just briefly, to go back to where Dennis Fung testified, explain what the photo id numbers reflect and what they--how they relate to item numbers?
MR. YAMAUCHI: Okay. In crime scene investigation, it's often difficult to take photos of everything in an order that will eventually be made clerical. In other words, they're got to have a clerical run in our property to know what each and every item was. And because there are certain rules of how clerically you have to put these into item numbers, the photo numbers don't always match up. But it is documented so there could be no confusion in the future.
MR. HARMON: And ultimately, does evidence of the sort that you were discussing with Dennis Fung, does that get booked into the evidence control unit?
MR. YAMAUCHI: Yes, it does.
MR. HARMON: And when it does, does it get a different number?
MR. YAMAUCHI: Well, Dennis would assign it, it's a different number, and then present that sheet to the evidence control unit.
MR. HARMON: And is that what you would call an evidence item number?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: As opposed to a photo id number?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. And would you describe what those items were that Dennis Fung discussed with you?
MR. YAMAUCHI: Okay. 117, which corresponds to item no. 52, is, as referring to my notes, some type of a--
MR. SCHECK: I'm going to--seeing his note, I'm going to move to strike the characterization as part of his answer. I'd stipulate 117, 115, 116 are the--47, 48, 49, 50 and 52, the Bundy blood drops.
THE COURT: Mr. Harmon.
MR. HARMON: Well, we need to correlate them with the id numbers. So I'll--
THE COURT: All right. Go ahead.
MR. HARMON: So, Mr. Yamauchi, 117 became photo id no. 50--or became evidence item no. 52; is that right?
MR. YAMAUCHI: Yes.
MR. HARMON: And 115, the photo id no. 115 became evidence item 50?
MR. YAMAUCHI: Yes.
MR. HARMON: And photo id no. 114 became evidence item 49?
MR. YAMAUCHI: Yes.
MR. HARMON: And photo id no. 113 became evidence item 48?
MR. YAMAUCHI: Yes.
MR. HARMON: And 112, 112 became evidence item 47; is that right?
MR. YAMAUCHI: Yes. That's correct.
MR. HARMON: And when you were discussing--we'll talk about the other items in a second. When you were discussing those items with Dennis, did he actually show you the items?
MR. YAMAUCHI: You mean open up and display the swatches? No, he didn't actually show me the swatches. But he did point out that yes, these coin envelopes are contained in these photo id numbers.
MR. HARMON: Okay. And those were items of evidence that he directed your attention to?
MR. YAMAUCHI: Yes. That's correct.
MR. HARMON: To do PCR DQ-Alpha testing?
MR. YAMAUCHI: Right.
MR. HARMON: What other items did you and Dennis Fung discuss at that point in terms of potential testing?
MR. YAMAUCHI: Okay. There was photo id no. 106.
MR. HARMON: And what evidence item number did that ultimately become?
MR. YAMAUCHI: Ultimately became item no. 41.
MR. HARMON: Okay. And how did Dennis Fung describe that to you?
MR. YAMAUCHI: Well, at this point in time, there were no exemplars which would be reference samples that you would need from victims. There were no exemplars from the victims. So in lieu of that, for the time being, Dennis suggested using this particular stain to represent the male victim.
MR. HARMON: Okay. And then what other--was there another item in the same category for Nicole Brown?
MR. YAMAUCHI: Yes. That would be photo id no. 1--107--
MR. HARMON: I'm sorry.
MR. YAMAUCHI: --which became item no. 42.
MR. HARMON: And what did Mr. Fung tell you about that, where he collected that one from?
MR. YAMAUCHI: That was to act as a possible exemplar for the female victim and it was collected off of concrete.
MR. HARMON: Okay. And what other items if any did you discuss with Dennis Fung in the context of PCR DQ-Alpha testing that you contemplated?
MR. YAMAUCHI: He described a glove and told me about the Defendant having a cut on his hand and that the glove had red stains on it.
MR. HARMON: And did he direct your attention to any specific area on the glove?
MR. YAMAUCHI: I--I don't recall any specific areas.
MR. HARMON: Okay. Any other item that was discussed with Dennis Fung at that time?
MR. YAMAUCHI: There was a reference blood sample from Mr. Simpson.
MR. HARMON: And was there some discussion about what item number that had or was--that should have at that point with Dennis Fung?
MR. YAMAUCHI: I'm not sure if it was Dennis or Andrea or if it was read off of a slip, but somehow or another, I was indicated it would become item no. 18.
MR. HARMON: And what form was that reference sample in at that time?
MR. YAMAUCHI: It was in a gray envelope.
MR. HARMON: The normal analyzed evidence envelope?
MR. YAMAUCHI: Yes. Standard LAPD blood envelope.
MR. HARMON: Okay. Was there a case number assigned to this case at that point?
MR. YAMAUCHI: If you mean a DR number, no.
MR. HARMON: At some point, was a DR number assigned to this case?
MR. YAMAUCHI: Yes, eventually.
MR. HARMON: What number was that?
MR. YAMAUCHI: The DR number, 94-0817431.
MR. HARMON: Now, you mentioned that Dennis Fung pointed out a set of coin envelopes that were somewhere in the evidence processing room?
MR. YAMAUCHI: Yes.
MR. HARMON: And where were you actually standing in the evidence processing room when you had this conversation with him?
MR. YAMAUCHI: I believe we were somewhere in the middle.
MR. HARMON: Okay. And where were the coin envelopes that you referred to?
MR. YAMAUCHI: They were on the table that was in the back section of the evidence processing room.
MR. HARMON: Do you recall if there were any other items other than the ones that he referred to or gestured to on that same table?
MR. YAMAUCHI: Yeah. I believe so.
MR. HARMON: Where was the analyzed evidence envelope that he referred to that contained Mr. Simpson's blood?
MR. YAMAUCHI: I believe it was back on that table--excuse me--on that table also.
MR. HARMON: Same table?
MR. YAMAUCHI: Yes.
MR. HARMON: At any point, did you see that analyzed evidence envelope in a black plastic garbage bag?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: I--I don't recall that specifically.
MR. HARMON: What is your first recollection of actually seeing that analyzed evidence envelope? When did you see it?
MR. YAMAUCHI: It would be sometime during the morning.
MR. HARMON: Close to the conversation we're just talking about?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: How close to the same--to the conversation you just described was it that you first saw that analyzed evidence envelope?
MR. YAMAUCHI: Probably at the end of it or so.
MR. HARMON: Okay. Now, we're going to talk about how you sampled those items in a couple of minutes, but when you obtain a reference sample that's in a tube, what's your normal practice in serology in terms of processing that item?
MR. YAMAUCHI: A reference sample for blood in a tube?
MR. HARMON: Yes.
MR. YAMAUCHI: Well, we like to make swatch cards out of the blood to be dried and frozen as a reference.
MR. HARMON: Now, is that what's called the fitzco card?
MR. YAMAUCHI: Yes. That's what we use at our lab.
MR. HARMON: Okay. And ultimately, did you do that on the reference tube that was provided to you by Mr. Fung that morning?
MR. SCHECK: Objection. Leading in this area.
THE COURT: Sustained.
MR. HARMON: Did you ever make a fitzco card with the Defendant's blood sample in this case on that morning?
MR. SCHECK: Objection. Still leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. HARMON: And when in this series of events that you're about to describe for us was it that you prepared this fitzco card?
MR. YAMAUCHI: To the best of my recollection, it was right after that so I could allow it to dry.
MR. HARMON: Okay. Right after what?
MR. YAMAUCHI: Right after being aware of the blood.
MR. HARMON: Right after the conversation with Mr. Fung?
MR. YAMAUCHI: Yes.
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Okay. When in relation to the conversation with Mr. Fung was it that you prepared this fitzco card from the Defendant's reference tube?
MR. YAMAUCHI: Well, after conversing with him and discussing everything and him pointing out where I would need to get the evidence as well as the reference sample, it would have been after that.
MR. HARMON: Okay. Now, is that--making of the fitzco card, is that something that you've done many times?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. HARMON: Can you give us an idea of how many times you made fitzco cards from blood tubes?
MR. YAMAUCHI: Well, at least--at least 30 times or so. But the problem with fitzco cards is, they're kind of a new invention. In the past, we've made our own version of that out of clean cloth, cotton cloth, and that's been a practice for all the years that I've been at LAPD.
MR. HARMON: Other than the difference between the card, the fitzco card and the fabric, is there any difference in how you pour the blood tube onto the card or the fabric?
MR. YAMAUCHI: You mean how I transfer the reference sample to the card?
MR. HARMON: Yes.
MR. YAMAUCHI: No.
MR. HARMON: Now, where did you make this fitzco card within the evidence processing room and in relation to the coin envelopes?
MR. YAMAUCHI: I--I did that on more of the area facing the--there's a gate that can move up and down, and that's closest to the entrance door that you would go in and out of. By that area more so than back by the other evidence. It was separated by space.
MR. HARMON: How much space?
MR. YAMAUCHI: Generally I'd say 10, 15 feet.
MR. HARMON: Why did you do it over there?
MR. YAMAUCHI: Well, you know, it's obvious I had to find a nice space or area that I could be assured it would be away from wind currents or, you know, anything that would be blown around and it would be safe to dry on its own. I didn't want it to be contaminated.
MR. HARMON: Okay. Contaminated by what?
MR. YAMAUCHI: Well, by anything.
MR. HARMON: Okay. When you say safe, safe from--what did you mean? Safe from what?
MR. YAMAUCHI: From being placed in contact with anything else.
MR. HARMON: Such as what?
MR. YAMAUCHI: Well, offhand, the most important thing for the forensic end of it would have been anything containing DNA or any type of biological material.
MR. HARMON: Okay. Did you wear gloves during the process where you made the fitzco card?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Why did you do that?
MR. YAMAUCHI: Well, there are two reasons. One is, every human being has biological substances on their hands and their body. So of course, you wouldn't want to contaminate by putting your own types and things onto such a reference. But also important is for your own safety purposes. It is a blood sample that--and all blood samples should be treated as, you know, possibly hazardous to your health. So you're going to want to take precautions to ensure that you don't get infected by any potential pathogen.
MR. HARMON: Now, at that point in time, the coin envelopes that Dennis Fung had pointed out to you were still on the table 10 to 15 feet away?
MR. YAMAUCHI: The evidence, yes, was about--
MR. HARMON: And were they in some sort--or strike that. What sort of condition were those coin envelopes in at the point where you went 10 to 15 feet away to prepare the fitzco card?
MR. YAMAUCHI: What--oh, they were in their regular position closed off and sorted out in rows into the--in the coin envelopes.
MR. HARMON: Okay. Now, we've heard a little bit about this sometime ago, but if you could briefly describe, why is it important to you as a conventional serologist, as a PCR DQ-Alpha forensic scientist, why is it important for you to make this card, this fitzco card?
MR. YAMAUCHI: To--well, we use that through our analysis as a reference so we'll have a dried preserved sample of that reference blood. You see, blood in the liquid state, it doesn't--it doesn't last as long as if you dry it out and freeze it. And for that reason, it helps to make a card like this for future analysis.
MR. HARMON: And when you say "For future analysis," what do you actually do with that card when you want to do some future testing?
MR. YAMAUCHI: Well, that card would be sampled in much the same way as all the other evidence would be sampled.
MR. HARMON: Okay. We'll get to that in a couple minutes. The envelope that had Mr. Simpson's reference tube, do you recall if it was sealed?
MR. YAMAUCHI: No.
MR. HARMON: Is that--
MR. SCHECK: May the record reflect the witness just looked at his notes?
THE COURT: Yes.
MR. HARMON: Do you have notes that say whether it's sealed or not?
MR. YAMAUCHI: Yes. Referring to my notes, I have that it was not sealed.
MR. HARMON: Do you recall if it was cold?
MR. YAMAUCHI: I--I can't say.
MR. HARMON: Do you recall if it had any item number on it when it was given to you like an evidence item number?
MR. YAMAUCHI: No.
MR. HARMON: You don't recall or it didn't?
MR. YAMAUCHI: I don't believe it had an evidence item number on it.
MR. HARMON: Did it have any sort of identification or writing, names, dates, initials on it?
MR. YAMAUCHI: Well, on--on the tube itself, I have listed in my notes that it was a purple cap vial, in quotes, O.J. Simpson and 6-13-94. But what was on there was O.J. Simpson and Thano Peratis was in quotes.
MR. HARMON: Can you spell that for us, please?
MR. YAMAUCHI: T-h-a-n-o p-e-r-a-t-I-s.
MR. HARMON: Okay. Now, in the normal course of business within the SID, when does an evidence item or an envelope like the envelope this tube was in, when does it normally get sealed?
MR. YAMAUCHI: Well, it needs to be sealed before it's booked.
MR. HARMON: Okay. And what kinds of seals do you have in the laboratory? In other words, what do they signify?
MR. YAMAUCHI: We have red seals and yellow seals. Is that what you're referring to?
MR. HARMON: Yeah. Could you tell the jury what the difference between those two is?
MR. YAMAUCHI: Generally speaking, before it's analyzed, it gets a red seal. After an analyst receives the evidence, analyzes it and is through with it, that analyst would put the evidence back and then seal it up with a yellow seal at that point.
MR. HARMON: But it doesn't get sealed until it's booked?
MR. YAMAUCHI: Initially, yes.
MR. HARMON: Okay. So if that envelope had not been booked, was it unusual for it not to be sealed?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Do you have to do testing before it gets booked?
MR. YAMAUCHI: Do I have to?
MR. HARMON: Yes.
MR. YAMAUCHI: No.
MR. HARMON: Have you occasionally in your career performed testing on evidence before it's ever been booked?
MR. YAMAUCHI: Yes, I have.
MR. HARMON: And in those instances, was it unsealed, not sealed?
MR. YAMAUCHI: Well, on a certain instance, I remember collecting the evidence myself in the field. So it wasn't booked.
MR. HARMON: Okay.
MR. YAMAUCHI: And it wasn't sealed. I'm sorry.
MR. HARMON: The--can you describe the kind of tube that this blood sample was contained in? Does it have a commercial name to it?
MR. YAMAUCHI: Well, I know there is vacutainer or venojet or something like that tubes. I didn't take notes as to which specific one it was.
MR. HARMON: The--have you noticed in the times that you've opened tubes like this anything distinctive when you've opened them?
MR. YAMAUCHI: Anything distinctive when I open a--a tube?
MR. HARMON: Yes.
MR. YAMAUCHI: Well, generally speaking, you have to put some type of a clean cloth over the top because quite often, little bits of blood will be at the top of the cap.
MR. HARMON: Okay. Does anything happen when you take these caps off?
MR. YAMAUCHI: Well--okay. Often, you can hear a vacuum noise because they're--they are vacuum tubes that are used to collect blood.
MR. HARMON: Okay. And do you recall whether or not you heard that noise in this case?
MR. YAMAUCHI: No, I don't.
MR. HARMON: Do you recall whether you've always heard that noise in every case where you've taken one of these vacuum caps off?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Do you remember each case in which you've taken one of these caps off the vacuum tubes?
MR. YAMAUCHI: Do I remember? You mean specifics about that noise?
MR. HARMON: Yes.
MR. YAMAUCHI: No. Not--I don't really pay much attention to it.
MR. HARMON: Now, what precaution--do you take any sort of precautions when you open these tubes?
MR. YAMAUCHI: Yes.
MR. HARMON: What precautions do you take?
THE COURT: Didn't we just go over this?
MR. HARMON: No, your Honor.
THE COURT: All right. Proceed.
MR. YAMAUCHI: Well, I make sure I wear gloves and I also put clean chem-wipes over the top of it to insure that no aerosolizing or any of the blood on the cap gets--gets away.
MR. HARMON: Okay. I know the jury's heard this before, but could you quickly tell us what a chem-wipe is?
MR. YAMAUCHI: A chem-wipe is a fancy scientific form of Kleenex. It's like an all-purpose type of paper that you would use around the lab for different wiping purposes.
MR. HARMON: Okay. And you mention aerosolized. Why would you put a chem-wipe over it in the context of aerosol?
MR. YAMAUCHI: Well, because when you're taking off the cap of one of these tubes, there's a little bit of force involved in order to pull the cap off. And doing that, like--like opening up a wine bottle or something of a cork, and you pull real fast, you don't want it to get away from you and have things splash all over the place. So to ensure that everything stays in one place and wouldn't contaminate anything or yourself for that matter, I put these chem-wipes over the top to take it off carefully.
MR. HARMON: How long have you been aware of that safeguard?
MR. YAMAUCHI: Well, that--I'm not sure if it's written in to do that or not, but I just take it as common sense to utilize that practice for my--basically for my own safety and also for the contamination factor.
MR. HARMON: Now, before you took the cap off the tube from Mr. Simpson in this case, did you make any attempts to measure the amount of blood that was in that tube?
MR. YAMAUCHI: No.
MR. HARMON: Why not?
MR. YAMAUCHI: Well, from a scientific standpoint, what we're interested in is whether there's enough there for us to test, and that's all I noted. And I note that by writing "Ample."
MR. HARMON: Writing "Ample"?
MR. YAMAUCHI: Yes.
MR. HARMON: And that's in the notes that you wrote?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And when you wrote "Ample," what did you mean it was ample for?
MR. YAMAUCHI: I felt there was sufficient sample in that tube for us to run a battery of tests.
MR. HARMON: Would you describe what you attempted to do with respect to the fitzco card in order to make a--an exemplar in the way you described it? How did you do it?
MR. YAMAUCHI: Okay. In the laboratory, I use what's known as a pipette-man. And what that is is the mechanical pipetter which utilizes sterile tips that have these plugs in them to make sure that no aerosol particles or anything at all can contaminate the pipetter. These pipetters are very accurate in measuring out aqueous solutions. What I did was, I used that to draw up some blood and carefully put it onto the card.
MR. HARMON: And in how many places?
MR. YAMAUCHI: There are four spots on the cards.
MR. HARMON: Now, are you aware of how much blood it takes to fill up those four spots?
MR. YAMAUCHI: Generally speaking, a couple hundred microliters which it--well, let me put it this way. If you know what a milliliter is, which is less than half of a teaspoon, a microliter in that respect, 200 microliters would be about a fifth of a milliliter. So it's a small amount, but, you know, it's definitely enough that you could see what it is.
MR. HARMON: And is that times four, one for each of the circles on the card?
MR. YAMAUCHI: Yes. Approximately.
MR. HARMON: When you did it in this case, do you remember how much blood you drew up into the pipette-man?
MR. YAMAUCHI: Well, consciously, all I'm worried about is getting enough on the exemplar card. But being as how it is a one am. Mil. Pipette-man, I most likely would have drawn up one mill of blood.
MR. HARMON: Okay. And would you have deposited all on the filter card?
MR. YAMAUCHI: Usually I would do that. And if there's any left over, that tip would be disposed of in biohazard along with the excess blood.
MR. HARMON: And when you make one of these cards, is it your custom or practice to actually label it as well?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And how do you identify it? Do you have some sort of initials or number that you would routinely put on items?
MR. YAMAUCHI: For--for my own personal identification mark, I--I generally use my initials "CY" followed by my serial number.
MR. HARMON: Okay. Now, I think you mentioned that the reason you did--or strike that. What was the reason that you chose to do--make the fitzco card first? You said something about drying earlier.
MR. YAMAUCHI: Well, I wanted to allow it a chance to dry so that later on, I could sample that card in my analysis.
MR. HARMON: Okay. And so--did you actually hold the tube in one hand and the pipette in the other when you drew the blood?
MR. SCHECK: Objection. Leading.
MR. HARMON: I'll withdraw that, your Honor.
MR. HARMON: Would you please describe the relationship of the tube to the pipette when you drew the blood up into the pipette-man from the tube?
MR. YAMAUCHI: Well, let's see. I would hold the tube and (Indicating)--
MR. HARMON: In your right hand? You're gesturing with your right hand?
MR. YAMAUCHI: Yes. Pipette with my left hand.
MR. HARMON: Okay.
MR. YAMAUCHI: And draw it up that way.
MR. HARMON: And then what would you do with the tube while you have the pipette in your left hand?
MR. YAMAUCHI: I'd have to put it into a rack to stand it up.
MR. HARMON: Do you recall if you put the cap back on it at that point?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: No. I probably would have dispensed the blood onto the card.
MR. HARMON: And then what?
MR. YAMAUCHI: Got rid of the tip and then put the cap back on.
MR. HARMON: When you say "Got rid of the tip," how do you do that?
MR. YAMAUCHI: It would have to go into a biohazard receptacle.
MR. HARMON: Can you describe that kind of receptacle, please?
MR. YAMAUCHI: Well, we have various types. There are small ones with bags in them, and then there are some with--that are made of paper kind of like, oh, it's a box about that tall (Indicating).
THE COURT: About how tall?
MR. YAMAUCHI: I'm sorry. About a foot. And then there are bigger boxes about one - one cubic foot in size and then there are larger bins which have trash-bag size biohazard bags in them, and there is one of those in the evidence processing room.
MR. HARMON: Okay. And--but the pipette stays with the lab?
MR. YAMAUCHI: Right. That once again, to clarify, is kept clean because these pipette tips have this filter in them that does not allow anything to pass through the tip area and into the instrument itself.
MR. HARMON: Now, at this point, are the evidence coin envelopes still in the same position that you described earlier?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: I'm sorry. One more time, please?
MR. HARMON: Sure. You just put the disposable pipette tip into where you dispose it. Are the coin envelopes still in the same place where they had been when you described them earlier?
MR. YAMAUCHI: Back on the table.
MR. HARMON: Yes.
MR. YAMAUCHI: Yes.
MR. HARMON: 10 to 15 feet away?
MR. YAMAUCHI: Well, varying, yeah, in there.
MR. HARMON: Okay. What sort of surface was that fitzco card on?
MR. YAMAUCHI: Hard table.
MR. HARMON: Okay. And the jury's already seen what the fitzco card is. So after you put the blood on it, did you just leave it the way it was with the blood on top of it?
MR. YAMAUCHI: Well, they come in two parts. They have the card itself and then they also come with a storage compartment that you can eventually put the card into. I usually put that storage compartment down and then put the fitzco card on top of that so that the card itself isn't touching the table.
MR. HARMON: Do you recall specifically with regard to the tube and the fitzco card in this case whether you deposited all of the blood that you had drawn up into the pipette-man onto the fitzco card?
MR. YAMAUCHI: I'm sorry. One more time, please?
MR. HARMON: Sure. I'll change--I'll try to make it better. You drew up about a milliliter?
MR. YAMAUCHI: Yes.
MR. HARMON: You dropped four spots on the fitzco card?
MR. YAMAUCHI: Yes.
MR. HARMON: Was there any blood left in the pipette?
MR. YAMAUCHI: I'm not sure. If there is though, I--I dispose of it. I don't replace the excess blood back into the tube.
MR. HARMON: Why not?
MR. YAMAUCHI: Well, I've been taught from general lab practices going back to college that that's not sound lab practice.
MR. HARMON: Okay. How long does it normally take these fitzco cards to dry to your satisfaction?
MR. YAMAUCHI: That depends a lot on the--I guess the temperature and humidity. But generally speaking, they dry relatively fast, maybe an hour, hour and a half, two hours.
MR. HARMON: Okay. Now, after you prepared the fitzco card--and I believe you described you put the cap back on the tube--did you then turn your attention to the coin envelopes?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: What did you return--what did you turn your attention to after you prepared the fitzco card in the fashion you've just explained to the jury?
MR. YAMAUCHI: I would have worked on my sampling then.
MR. HARMON: Okay. Now, is it your custom and practice to prepare detailed notes of the items that you sample?
MR. YAMAUCHI: Well, I take general approximations.
MR. HARMON: Okay. Could you give us an idea? We're going to show one of them in a little bit, but could you give us an idea of the kinds of things you document?
MR. YAMAUCHI: As far as--as far as the coin envelopes and then the swatches inside?
MR. HARMON: Yes.
MR. YAMAUCHI: Oh, okay. Well, what I generally do is, I kind of draw out a picture of what I think the swatches look like.
MR. HARMON: Okay. Let me step back. I left out something. Where was the tube when you turned your attention to the coin envelopes, the reference tube?
MR. YAMAUCHI: Well, afterwards, after being capped, it would have went back into the gray envelope.
MR. HARMON: Do you have any habit or custom about working with respect to gloves and working with wet blood?
MR. YAMAUCHI: Well, yeah. After you handle a tube of wet blood, almost inevitably, you'd get a little bit on your glove. So as a practice, change them.
MR. HARMON: Is that what you did in this case?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. And when you turned your attention to the coin envelopes, where was the envelope that the reference tube from Mr. Simpson had been?
MR. YAMAUCHI: That, after it was placed back into the gray envelope, would have been put back with the rest of the evidence.
MR. HARMON: Inside the envelope?
MR. YAMAUCHI: Inside the envelope.
MR. HARMON: Okay. So now, we're about to talk about sampling of the evidence in general, okay?
MR. YAMAUCHI: Okay.
MR. HARMON: Have you had a chance to review the board that we made with respect to your habit and custom of sampling evidence?
MR. YAMAUCHI: Yes, I have.
MR. HARMON: Okay. Your Honor, may this be marked--and we've reviewed this before.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: --276 for identification, your Honor?
THE COURT: 277.
(Peo's 277 for id = board)
MR. HARMON: Mr. Yamauchi, did you--
THE COURT: Mr. Fairtlough, can we move that up, please? I'm sorry. Excuse me. (Brief pause.)
THE COURT: All right. Thank you.
MR. HARMON: Before we move on, do you actually remember changing your gloves between the reference sample processing and the evidence sampling in this case?
MR. YAMAUCHI: Yes.
MR. SCHECK: Objection. Asked and answered.
THE COURT: Overruled.
MR. HARMON: Okay. Mr. Yamauchi, if you could step out here and use the pointer, I'd like you to describe to the jury how you normally process evidence samples in a case where you've been given a coin envelope with swatches from an evidence stain and a substrate control.
MR. SCHECK: I object to that as leading and characterization as to what he normally does.
THE COURT: Overruled.
MR. HARMON: Just start with photo no. 1 that's entitled "Labeling tubes." Could you explain to the jury what that shows?
MR. YAMAUCHI: Oh, okay. The first step is, you've got these little tubes that eventually you want to put your samples into. And so to ensure that you're going to get the right thing into the right tube, the first thing I do is, I'll write down on the tube to make sure that I--I've got the number and whatever other information I'm going to need on there. And then from that point, once the tubes are labeled, I will go to the next step and--
MR. HARMON: What sort of labeling do you put on the tubes?
MR. YAMAUCHI: Well, if I have it, a DR number. But in this case, I'm not sure if at that point I had a DR number. I believe I was working off of the photo id numbers at that point because that would be the only information at that time I had.
MR. HARMON: What do you call those tubes?
MR. YAMAUCHI: These are call microcentrifuge tubes.
MR. HARMON: Okay. And we'll talk about them in a little while as well. So are you ready to move on to photo no. 2 that describes the opening of the bindle?
MR. YAMAUCHI: Sure. Okay. There's actually two steps going on here. We've got--what I'm doing there, I'm opening up a sterile scalpel blade, which is the instrument I use to do most of my manipulations, and that would be cutting as well as transferring stains into the tubes that I just described. The other thing that happened there is, I--these bindles here, one of them was opened up face up like that.
MR. HARMON: What is that bindle made of?
MR. YAMAUCHI: Paper. It's plain paper. Oh, there's one other thing I didn't mention that is in this photograph to my attention. We've got the chem-wipes that we talked about earlier, and they're underneath the bindle there. And the reason why that's done is because once you're viewing some cutting even on the paper bindle, you occasionally would go through and cut through the paper bindle. And you wouldn't want the blade to go all the way through and cut into the table or something that could potentially cause contamination. So in order to ensure that that doesn't happen, I always lay about three chem-wipes underneath the bindle to make sure that that doesn't occur. At that point--see if you can--if you look closer, you can kind of see how the blade itself can be used to manipulate the evidence and--
MR. HARMON: Do you make it a practice to avoid manipulating the sample with your gloves?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Sure.
MR. HARMON: You were talking about how easy it is to manipulate the sample with the scalpel. Why do you try to do that with the scalpel?
MR. YAMAUCHI: Well, the scalpel is sterile, and I want to make sure that the only thing touching that, it would be that sterile instrument. So for that reason, I like to do my manipulations with that blade itself.
MR. HARMON: Now, you've mentioned that it's a disposable item; is that right?
MR. YAMAUCHI: That's correct.
MR. HARMON: What part of it is disposable?
MR. YAMAUCHI: Well, we--we throw the whole blade away after each individual sample that we cut.
MR. HARMON: So that entire piece of metal that's in your hand is what gets thrown away?
MR. YAMAUCHI: Yes. Afterwards, for safety purposes, we put it back in the aluminum foil packaging that it comes in, and then that's tossed away in the biohazard.
MR. HARMON: Okay. And do you--what is your practice with respect to changing those between samples?
MR. YAMAUCHI: I use a clean blade for each sample.
MR. HARMON: And what about if you have a substrate control in addition to a stain? Do you change it at all between those two?
MR. YAMAUCHI: Right. Substrate controls are handled in the same fashion the evidence is handled.
MR. HARMON: Okay. Go ahead. Pick up with no. 3 if you would.
MR. YAMAUCHI: And here, moving right along, as the end of that process is occurring, I'm putting the cut piece of sample into the microcentrifuge tube utilizing the scalpel blade as the manipulating instrument. And moving right along then, that tube is placed capped into the rack, and the next--the next process then occurs.
MR. HARMON: Why do you cap it?
MR. YAMAUCHI: We have to cap it in order to cut it off from the other surroundings to ensure its safety from being exposed to any other contaminants.
MR. HARMON: And what is your practice with respect to changing gloves? You've described it with respect to changing gloves when you worked with a wet sample. What is your practice with regards to changing gloves when you're processing a series of coin envelopes in the manner that's shown on the exhibit board, exhibit 277?
MR. YAMAUCHI: Okay. As is clear with this display, my gloves do not have to come in contact with the swatches themselves and, therefore, I don't change my gloves between each sample because the manipulating instrument, that's the only thing that's touching the sample itself, is the scalpel blade. So it's not necessary to change your gloves between samples.
MR. HARMON: Okay. Occasionally, do you--have you seen the need to change gloves between samples even when you're working with dry samples?
MR. YAMAUCHI: Well, if anything arises that would cause that, yes, of course. Gloves would be changed.
MR. HARMON: And have you ever changed gloves between dry samples in your career?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Go ahead, you can have a seat again, Mr. Yamauchi.
(The witness complies.)
MR. HARMON: Now, Mr. Yamauchi, you've--the process you've described--or strike that.
THE COURT: Excuse me. Mr. Fairtlough, you want to just briefly take it down to the other end there?
MR. FAIRTLOUGH: Sure.
(Brief pause.)
THE COURT: All right. Thank you, Mr. Fairtlough.
MR. HARMON: When you processed the items that are labeled 47, 48, 49, 50 and 52 in this case, generally were there two bindles in each of those envelopes?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: How many bindles were in each of the coin envelopes?
MR. YAMAUCHI: Two.
MR. HARMON: Okay. And will you please describe your practice with respect to processing or how you process coin envelopes?
MR. YAMAUCHI: Well, only one coin envelope or set of evidence item would be opened at one time. So in other words, I wouldn't have two coin envelopes open simultaneously.
MR. HARMON: Okay. And why is that?
MR. YAMAUCHI: Well, that's bad lab practice. You want to eliminate any chance of cross-contamination. So you work on one thing at one time.
MR. HARMON: And in each of the coin envelopes that you processed in this case, there were two bindles you've said?
MR. YAMAUCHI: For the--for the ones I just described, yes.
MR. HARMON: Sure. During the processing of the evidence in this case, did you initial either the coin envelopes or the bindles?
MR. YAMAUCHI: Yes. It's my custom to put some type of identifying mark on them.
MR. HARMON: And what identifying mark is it your custom to put on them?
MR. YAMAUCHI: That would be my initials "CY", and most often, I'll also include my serial number too.
MR. HARMON: Okay. And you mentioned, in showing the processing of one of those items, that you opened the bindle, you had a chem-wipe underneath the bindle.
MR. SCHECK: Your Honor, this is asked and answered and leading.
THE COURT: Overruled.
MR. HARMON: How frequently did you change the chem-wipe with respect to the processing of these bindles?
MR. YAMAUCHI: That would be changed with each and every sample.
MR. HARMON: When you say "Sample," do you mean stain item and substrate control item?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: What do you mean by "Change between each item"?
MR. YAMAUCHI: Well, this all makes logical sense. If I'm going to cut in--every time I make a cut, well, that set is going to have to get a different set of chem-wipes underneath it because that was the whole idea behind it in the first place, to ensure that I wouldn't cut into the table. So yes, every single time between controls, between sample, those chem-wipes are changed underneath.
MR. HARMON: Could you--
MR. HARMON: Your Honor, I'd like to have marked as exhibit 278 for identification--I've shown these to Mr. Scheck. They're simply four coin envelopes, each with two bindles in them. And I'd like to have Mr. Yamauchi demonstrate right up here in front of the jury the sequence of handling from one point--and I'm not going to ask him to do all four. I just want to have him do two so the jury can observe how he actually did these in this case.
MR. SCHECK: Your Honor, I don't know. Maybe he can do one. And we have a board. We have a description.
THE COURT: Let's see him do one. Go ahead. Proceed. Let's see how illustrative it is.
MR. HARMON: Well, the transition from one to the other--
THE COURT: I understand, counsel. I understand.
MR. HARMON: Okay. Mr. Yamauchi, did you prepare--and I'm going to write just on one of them for the time being.
THE COURT: How about two?
MR. HARMON: On two of them.
THE COURT: I understand the transition point.
MR. HARMON: Thank you, your Honor.
THE COURT: You're welcome.
MR. HARMON: May that be 277-A and B?
THE COURT: How about 278--
MR. HARMON: Or 278-A and B. Yes. I'm sorry.
(Peo's 278-A and B for id = coin envelopes)
MR. HARMON: Mr. Yamauchi, would you please come up and do this in front of the jury? And I'm not going to ask you to cut any of these, but would you pretend these are two coin envelopes they're waiting for you to process. And just start with 278-A. And if you would, if you'll describe what you're doing and what you did on the evidence in this case so the jury can watch.
MR. SCHECK: Your Honor, if this is what he's doing, I object because he's just having him open up the coin envelopes and bindles and it's not replicating the process depicted there, the scalpel and the swatches.
THE COURT: Overruled. Overruled.
MR. YAMAUCHI: Okay. With the same process and procedure in mind, you get out the clean chem-wipes and I've got my--
THE COURT: Any jurors in the back row who want to stand, feel free to stand up and watch.
MR. YAMAUCHI: --get out the marking pen and mark them up, have them ready to be processed. Those are the--the tubes. And then--well, I'd have gloves on of course. Usually the way the flaps are done is in this fashion like that to hold them shut. So then we'd have two closed-off paper bindles. They would come out like that (Indicating). And the reason why there's two is--I--I know you've been hearing this all along, but we have controls and we have sample, and that's why there's generally two there. Well, regardless of order, I handle these in the same fashion. So I don't necessarily do my sample and my control first. But what I would do is open this up, put it down onto the chem-wipe pad and then I would proceed to opening up the scalpel blade and then take out the sterile scalpel blade and do my cutting. And then with the sterile scalpel blade, I've learned to, if you press down on it at a certain angle, you can actually pick the sample up that you're going to put into the tube. And when you get good at this stuff, like anything else, you can take a tube and you can open it up with one hand and then put the sample in, close the tube off with one hand, put it away. The sample--the scalpel blade goes back into the container it originally was held in so that it doesn't cut anybody. That's put to the side or, you know, tossed out if you've got the receptacle there. Then the same process is started all over again. This is closed off. Sometimes I'll initial the bindles or I'll initial the coin envelope or I'll do both just to be on the safe side. These chem-wipes, along with the scalpel blade, rolled up, tossed into the receptacle and then work on the next one, the whole process all over.
MR. HARMON: And then what would you do with the bindles?
MR. YAMAUCHI: The bindles are then placed back into the coin envelope, put on the side and then the whole process starts over again with the next one. This has to be closed off before you start on the next sample.
MR. HARMON: Why is that?
MR. YAMAUCHI: You don't want two of them open at the same time because even though you separate it out, it's still not good lab practice to have them open simultaneously.
THE COURT: All right. Mr. Yamauchi, why don't you return to your seat on the witness stand, please.
(The witness complies.)
MR. HARMON: Now, when you actually open one of these bindles--we've had a discussion about you approximate how large they are and describe them in your notes?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes. I try to achieve that approximation by drawing them out.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Is that what you did in this case?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And do you have notes that actually describe the numbers and sizes of the swatches in this case?
MR. YAMAUCHI: Yes. I--I draw out all the swatches and I have notes to that.
MR. HARMON: And why do you do that?
MR. YAMAUCHI: Well, just to give me a general idea of what's there.
MR. HARMON: And when you actually cut one of these swatches, do you make any sort of record of what you cut?
MR. YAMAUCHI: Yeah. Occasionally and in this case, I do a score mark over the swatch that I cut to--in the drawing.
MR. HARMON: Okay. Your Honor, I would like to have marked as exhibit 279 one of Mr. Yamauchi's notes in this case.
THE COURT: All right. Which page?
(Brief pause.)
MR. HARMON: Mr. Yamauchi, I'd like to show you exhibit 278 for identification and see if you--is this the--
THE COURT: 278 or 279?
MR. HARMON: 279.
(Peo's 279 for id = Yamauchi's notes)
MR. HARMON: Are these the notes that you made with respect to documenting the sampling of the items in this case?
MR. YAMAUCHI: Yes.
MR. HARMON: Or some of the items?
MR. YAMAUCHI: Yes.
MR. HARMON: These are the items that were in the coin envelopes?
MR. YAMAUCHI: Yes.
MR. HARMON: And just to go back to that again, giving us the evidence item numbers, could you tell us which evidence items you processed in the manner that you've just demonstrated to the jury for the first set of tests that you'll be discussing?
MR. SCHECK: Objection. Vague as to time.
THE COURT: Rephrase the question.
MR. HARMON: Could you give us the numbers of the evidence items that you processed on the morning of June 14th?
MR. YAMAUCHI: Okay. Again referring to my notes, the evidence item no. 52, 49, 50, 48, 47, and according to my notes, sampled between 10:00 and 11:00 approximately on the 14th of June, 1994.
MR. HARMON: Okay. Your Honor, I would like to put 279 up on the elmo if I can.
(Brief pause.)
MR. HARMON: Okay. Mr. Yamauchi, let's just--let's look at item 49 if you will. Could you just assist the jury in interpreting all the information that's in that horizontal row there starting with 114?
MR. YAMAUCHI: Well, 114 was--and it's in quotes because that's the way it was written on the coin envelope. The 49 above it was written in once I knew which item number it corresponded to, and then coin envelope and then in quotes 114, describing the coin envelope, and paper bindle and one of the paper opinions with, in quotes, no. 114, describing what was written on the paper bindle, and then there are six swatches drawn out; and then in the next column over, it says five and a half swatches, ample.
MR. HARMON: What did you mean by that "Five and a half swatches, ample"?
MR. YAMAUCHI: That just described what was left over after I sampled.
MR. HARMON: And does that horizontal row, does that also show where you tried to show how much you cut, which item you cut and how much you cut?
MR. YAMAUCHI: On the last swatch, I did a dotted line to show approximately where I scored it.
MR. HARMON: Okay. And looking at what appears to be 114C, the substrate control, what's the wording that you have to the right of that? What's that reflect?
MR. YAMAUCHI: Well, white with brn, which to me means brown specks.
MR. HARMON: Okay. Would you jump up one column and look at what's 117C or 52, the substrate control. What observation did you make about the color of that substrate control?
MR. YAMAUCHI: Pink color.
MR. HARMON: And so did you do that with each and every one of the stains and substrate controls that you sampled on June 14th? In other words, make that kind of documentation?
MR. YAMAUCHI: Yes. In my casework, I often times take general, very general color descriptions of what's there.
MR. HARMON: Okay. And how near to the actual size and shape of the swatches are your little sketches of those swatches?
MR. YAMAUCHI: Well, it's pretty close, but it's not meant to be precise sort of a depiction.
MR. HARMON: Okay. How long did it take to complete the sampling process of these coin envelopes, 41--items 41, 42, 47, 48, 49 and 52?
MR. YAMAUCHI: Well, I listed in my notes that they were sampled between 10:00 and 11:00. So sometime within then.
MR. HARMON: And what did you do with each of these coin envelopes after you finished processing it in the way that you demonstrated for the jury?
MR. YAMAUCHI: Well, they were placed back where I found them.
MR. HARMON: Okay. Now, in terms of who had responsibility for those items at that point in time, who was responsible for them now that you had completed your sampling of them?
MR. YAMAUCHI: They'd be in I guess the custody of the person that was collecting them. That would be Dennis.
MR. HARMON: Dennis Fung? And is that normally the person that books them?
MR. YAMAUCHI: The person that collects the items, yes, generally speaking, is the person that's going to book the items.
MR. HARMON: So at this point in time, can you describe--you've mentioned something--you showed the jury how you unscrew and screw the cap on these microcentrifuge tubes. What were you putting them in?
MR. YAMAUCHI: A microcentrifuge tube rack.
MR. HARMON: And how many tubes can each of those racks hold?
MR. YAMAUCHI: It varies. Usually there's 16 to a row. I think these had--I would say approximately 32 for that particular rack.
MR. HARMON: And are those tubes--do they provide a safeguard against contamination if the seal is on them?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: All right. What are those tubes made out of?
MR. YAMAUCHI: Some kind of a plasticky substance, polyethylene perhaps.
MR. HARMON: What's the purpose of the cap?
MR. YAMAUCHI: The purpose of the cap is to seal it off, make sure that nothing gets in or out.
MR. HARMON: And is it your practice never to have more than one--
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: What is your practice with respect to having more than one tube open at a time?
MR. YAMAUCHI: Well, that's not a good idea, I mean something you don't want to do.
MR. HARMON: And did you have more than one tube open at a time in any of the processing of the evidence in this case?
MR. YAMAUCHI: No.
MR. HARMON: After you processed the coin envelopes in the manner that you described, did you then turn your attention to the glove that Mr. Fung had talked to you about?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: Did you process the glove at some point that morning?
MR. YAMAUCHI: Umm, sometime in the morning or maybe the early afternoon. I'm not sure specifically.
MR. HARMON: Okay. Tell us how you began that processing activity.
MR. YAMAUCHI: Well, taking a look at it, I knew I was going to have to sample it in some way. So I had somebody come by and photograph it. As far as the handling specifically of the gloves, I put a clean piece of paper out and examined the gloves on top of the clean paper. Excuse me. The glove. Talking about no. 9.
MR. HARMON: Sure. The glove that was found at Rockingham?
MR. YAMAUCHI: Right.
MR. HARMON: No. 9? Now, where were the tubes, the centrifuge--the microcentrifuge tubes in the racks? Where were they when you began processing the glove?
MR. YAMAUCHI: I'm not sure.
MR. HARMON: Okay. Where were the coin envelopes when you began processing the glove?
MR. YAMAUCHI: The coin envelopes would have been in that same area that they were given to me at.
MR. HARMON: Okay. And where did you process the glove?
MR. YAMAUCHI: I seem to recollect working on the--the hard bench countertop that's just--it would be right to the side of the table that all the evidence was on.
MR. HARMON: When you say "Right to the side," can you give us a little better description of the relationship?
MR. YAMAUCHI: Well, it's kind of hard to without a picture. But let's say it would be on the same countertop that the clean paper is by.
MR. HARMON: And what top is the set of coin envelopes on?
MR. YAMAUCHI: It's on a table that's in the middle of the room near the hood.
MR. HARMON: Different table than the glove was on?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. And you put a clean piece of paper down?
MR. YAMAUCHI: Yes.
MR. HARMON: Why did you do that?
MR. YAMAUCHI: Well, again, that's standard lab procedure to make sure you have--treat evidence in such a way that it won't contaminate with anything.
MR. HARMON: Okay. Will you describe--you mentioned you brought somebody over to photograph the glove?
MR. YAMAUCHI: Yes.
MR. HARMON: Who was that?
MR. YAMAUCHI: I believe I tried to get John Taggard and might have been Mike Wilson that photographed it, one or the other.
MR. HARMON: And when did he photograph it in relation to the sampling that you undertook?
MR. YAMAUCHI: I'm not sure.
MR. HARMON: Was it before or after?
MR. YAMAUCHI: After.
MR. HARMON: Will you describe the first part of the processing of the glove, please.
MR. YAMAUCHI: Okay. The glove was laid out on the paper. And it really wasn't super obvious that it was--could have been soaked in blood or could have had a lot of blood. So I did what's called a phenolphthalein test. It's a presumptive test for the presence of blood.
MR. HARMON: How did you do that?
MR. YAMAUCHI: Well, that's done by taking a clean cotton swab, moistening it with deionized water and allowing some of the stain that would be on the glove to transfer to this swab. From that point, chemicals are added to that swab, and these chemicals upon reacting positively with something that's most likely blood, will turn a pink color.
MR. HARMON: Okay. And how many separate areas did you perform the phenolphthalein test?
MR. YAMAUCHI: I'm going to look at my notes.
MR. HARMON: Sure. Did you make those notes close to the time that you did the sampling?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay.
(Brief pause.)
MR. YAMAUCHI: About seven, seven times?
MR. HARMON: And what were the results of those phenolphthalein tests?
MR. YAMAUCHI: In each spot that I tested on that particular glove, there was a positive result.
MR. HARMON: Okay. And that's just an indicator that it might be blood?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: Okay. What did you do after you got those seven presumptive positive results from the glove?
MR. YAMAUCHI: Well, I knew I needed to pick a spot to sample the glove. And one of the things we have problems with in PCR is, when you use leather in the testing, it's been documented that leather causes inhibition of the test. So it's often hard to get results when you use leather samples. So what I did was, I collected from a number of different areas, and two of them I took actual cuttings of the leather to--to see if I could get results, and to back myself up because I knew that leather doesn't always produce results, I also took a cutting from an area that was not made of leather, and that would be the lining area, as well as, I took one sample from an area by swatching in the same manner that was described to you out at the crime scenes where we use the cotton swatches to transfer the stain to the swatch and then analyze that swatch.
MR. HARMON: Did you attempt to take a substrate control from the glove?
MR. YAMAUCHI: Well, in the process of trying to find an area that was free of any blood, I decided that, well, in this case, this glove seems to be covered with blood to a certain extent and I wasn't going to mess around and test all over the place to try to locate an area that may or may not have blood. I didn't want to manipulate that item any further at that point. So I chose at that time not to collect a control on this particular item.
MR. HARMON: Okay. And did you make notes in a drawing that reflected the areas that you sampled on the glove?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Your Honor, may I have marked as exhibit 279--I'm one behind today. 280?
THE COURT: 280.
MR. HARMON: Thank you, your Honor.
(Peo's 280 for id = drawing)
MR. HARMON: May I put it on the projector, your Honor?
(Brief pause.)
MR. HARMON: Now, Mr. Yamauchi, is this the sketch that you made at the same time you were conducting the sampling on the glove?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: Okay. And in the lower left-hand corner, looks like there's a notched area and something that says initial "CY." Can you tell us what that is, what that represents?
MR. YAMAUCHI: There's where I put my identifying mark on that particular item.
MR. HARMON: Okay. And if we could move over to the right sketch a little bit, can you describe to the jury what's shown in the right-hand search of 280 for identification?
MR. YAMAUCHI: That would indicate the area where I spot-checked for a control as well as an area that I ended up sampling for testing.
MR. HARMON: Okay. If you would, you've got an "X" with an arrow to it that says "Spot check for control." That's one of the phenol areas?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And then I see a letter--is that a letter "D" where it says phenol and then sample cutting taken?
MR. YAMAUCHI: I think that's--that's the area I marked off as the area that where I sampled.
MR. HARMON: Okay. That's just a circle where you cut it out?
MR. YAMAUCHI: Right.
MR. HARMON: Okay. And then looks like the thumb area. Could you describe to the jury what that shows?
MR. YAMAUCHI: Again, there is the area where I would have sampled.
MR. HARMON: Okay. And that's--you've designated that area B?
MR. YAMAUCHI: Yes.
MR. HARMON: And the one, looks like it's inside the rear or inside the wrist on the back of the hand, that's area C?
MR. YAMAUCHI: Yes.
MR. HARMON: And then can we go up to the next sketch there? You've got that described as backside of the glove. Can you describe to the jury what your notes mean in that?
MR. YAMAUCHI: Okay. On--on A, I took a cutting, and that also is phenol positive. And on D, that area down towards the right lower--lower right corner of the glove, that was the area that I sampled the stain by use of a cotton cloth swatch.
MR. HARMON: And I believe that's--you did that to try to avoid the inhibition problem that's well known?
MR. SCHECK: Objection.
MR. YAMAUCHI: Yes. Just in case I couldn't--
THE COURT: Hold on. Withdrawn?
MR. SCHECK: Leading, but let's go.
MR. YAMAUCHI: I'm sorry. That's--yeah, I guess because I knew that that could potentially cause a problem. So I decided to sample in different ways, and that was why.
MR. HARMON: Okay. So--and you've labeled them A, B, C and D. Did those lettering follow the samples that you cut out or that you took from the glove when you did your processing in this case or your typing?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Now, up to this point, Mr. Yamauchi, you've described making a fitzco card processing the coin envelopes and the glove. At some point, did you come back to the fitzco card?
MR. YAMAUCHI: Yes. Eventually I sampled that card.
MR. HARMON: And when was that in the sequence of events?
(Discussion held off the record between the Deputy District Attorneys.)
MR. SCHECK: Can I see what note he's referring to?
THE COURT: Sure.
(Brief pause.)
MR. YAMAUCHI: Last.
THE COURT: Proceed.
MR. HARMON: Thank you, your Honor.
MR. HARMON: I left out a little bit here, Mr. Yamauchi. I'm sorry. When you made these cuttings from the glove, what did you do with them?
MR. YAMAUCHI: They would be in the extract tubes.
MR. HARMON: The microcentrifuge tubes?
MR. YAMAUCHI: Yes. That's correct.
MR. HARMON: Okay. And how did you process them when you're doing all this sampling of the glove? Could you describe the sequence that you did them in, the samples?
MR. YAMAUCHI: You mean, when I--when did I sample each particular one?
MR. HARMON: Sure.
MR. YAMAUCHI: Well, I'm not sure. But judging by my notes, I would have done it in the A, B, C, D order.
MR. HARMON: Okay. And each time--or would you describe what you did each time, how you put it in the tube?
MR. YAMAUCHI: Okay. For each particular area sampled, if, say, I used a cutting, I would have went through that process like I was cutting up the swatch. I would have used a sterile scalpel blade for that particular area and then manipulated the tube with that hand and used a scalpel blade to put the sample into the tube, just in the same way as I did with the cloth swatches a little earlier. And with collection of the cloth swatch, I--I would have done that by taking sterile water and a cloth swatch, moistening the cloth swatch with the water and rubbing it on the area of the glove that I wanted--intended to get a transfer and transfer some of this biological fluid on to that, and then I would have taken that swatch and put it into a microcentrifuge tube in the same manner, not allowing any of the tubes to be opened simultaneously.
MR. HARMON: Now, where was the processing of the glove done with respect to the fitzco card that's drying somewhere?
MR. YAMAUCHI: It would have been about 10 feet away.
MR. HARMON: Same table or different tables?
MR. YAMAUCHI: That would be at that time at the same table.
MR. HARMON: But about 10 feet apart?
MR. YAMAUCHI: Yeah.
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. HARMON: So you've got the fitzco card drying, everything in tubes and I believe you said you sampled the fitzco card last?
MR. SCHECK: Objection. Leading. Move to strike.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Did you sample the fitzco card after you sampled the glove?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes. Looking at my notes, that was the last thing in order.
MR. HARMON: Could you tell us what you're looking at there and why you're so sure that you sampled it last?
MR. YAMAUCHI: Because I have my DNA extraction record, and that was the last one I listed.
MR. HARMON: Okay. And how did you actually go about sampling the fitzco card?
MR. YAMAUCHI: In the same fashion as if it were an evidence item, all the same precautions being taken. It would be cut out with a sterile scalpel blade.
MR. HARMON: Put in the same kind of tube?
MR. YAMAUCHI: Yes. In the same microcentrifuge tube.
MR. HARMON: And then in a rack?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Now, I believe in some of your earlier discussions, was it impressed on you that there was a hurry to do this testing?
MR. YAMAUCHI: To a certain extent, they--they wanted investigative information.
MR. HARMON: And is there any way if you hurry these things that you can change the results?
MR. SCHECK: Objection. Leading.
THE COURT: Rephrase the question.
MR. SCHECK: Argumentative.
MR. HARMON: Based on what you knew, did you have an expectation what the outcome of these tests would be?
MR. SCHECK: Objection. Calls for speculation.
THE COURT: Overruled.
MR. HARMON: It's not offered for the truth of the matter, your Honor.
THE COURT: I overruled the objection.
MR. HARMON: Sorry.
MR. YAMAUCHI: Okay. I--sorry. I lost my train of thought.
MR. HARMON: Sure. Based on the information that was made available to you, what did you expect the outcome would be?
MR. SCHECK: Objection.
THE COURT: Overruled.
MR. YAMAUCHI: You mean like from what I heard on the news or--
MR. HARMON: Yes.
MR. SCHECK: Move to strike.
THE COURT: Overruled.
MR. YAMAUCHI: Well, I--I thought it would be an exclusion.
MR. HARMON: Why?
MR. SCHECK: Your Honor, move to strike.
THE COURT: Let me see counsel at the sidebar with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: We're over at sidebar. Mr. Harmon, what is Mr. Yamauchi going to say?
MR. HARMON: Media accounts said Mr. Simpson was in Chicago at the time, and that's why he fully expected to exclude. No examiner bias, that's for sure.
MR. SCHECK: It's irrelevant, hearsay.
MR. HARMON: Examiner bias. It goes to his state of mind.
MR. SCHECK: It's a different psychological phenomenon. And that has--first of all, that's not even been alleged of this witness as of yet. So I don't think that's a factor, but it seems to me that this is improper, inflammatory hearsay. I would ask for an instruction to the jury to disregard this. And, your Honor, I had an inkling that something like this was going to happen. That's why I made the objections in the fashion that I did. With respect to calling for speculation, this part of it was just an instinct.
MR. HARMON: Well, you know, it's going to come screaming in on redirect. They're going to go into this examiner bias garbage. So it shows he didn't have any examiner bias, state of mind, no expectation.
THE COURT: I'm going to overrule the objection. But what I want you to do, Mr. Harmon, is ask him if he knows, "Have you ever heard the term, `examiner bias'?" You have to put it in that context. I'll overrule the objection. That's the only context that's relevant.
MR. SCHECK: What is--so I can understand the Court's ruling, what's going to happen? What can he ask?
THE COURT: His next question is, "Have you ever heard anything about `examiner bias'? Have you heard the term `examiner bias'?"
MR. COCHRAN: What if he says no?
THE COURT: If he says no, it's irrelevant.
MR. HARMON: He doesn't have it. It shows he doesn't have it because--
THE COURT: I know, but let's proceed.
MS. CLARK: Your Honor, it goes to more than that.
THE COURT: No, it doesn't now. Let's proceed.
(The following proceedings were held in open court:)
THE COURT: Proceed. Mr. Harmon, 2:30.
MR. HARMON: Excuse me, your Honor?
THE COURT: 2:30.
MR. HARMON: Okay.
MR. HARMON: Mr. Yamauchi, you've been watching television, the televised proceedings in this case occasionally?
MR. YAMAUCHI: Yes.
MR. HARMON: Have you heard the term "Examiner bias"?
MR. YAMAUCHI: Yes.
MR. HARMON: Are you familiar with it?
MR. YAMAUCHI: Well, I'd like to hear an explanation. But I have an idea what it means.
MR. HARMON: Okay.
MR. SCHECK: Objection, your Honor.
THE COURT: Overruled.
MR. HARMON: Based on what you heard in the media at the time or, you know, before you did the tests in this case, did you have an expectation of what the outcome of these tests would be?
MR. SCHECK: Objection.
THE COURT: Overruled.
MR. YAMAUCHI: Well, on the 13th, the last thing I heard in the evening--
MR. SCHECK: Your Honor, that's--
THE COURT: It's nonresponsive. Did you have an expectation, yes or no?
MR. YAMAUCHI: Yes.
MR. HARMON: And what was that based on?
MR. SCHECK: Objection.
THE COURT: Overruled.
MR. SCHECK: Calls for hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: Well, like I was saying, I heard on the news that, well, yeah, he's got an air-tight alibi, he's--he's in Chicago and, you know, that--and it's his ex-wife and this and that, and I go, oh, well, he's probably not related to the scene.
THE COURT: All right. Let me see counsel at the sidebar.
(The following proceedings were held at the bench:)
THE COURT: We've got a huge problem. We just brought in a statement. I'm going to strike the answer.
MR. SCHECK: No, your Honor. Your Honor, I'm not against it. It opens the door to his entire statement.
THE COURT: It does.
MS. CLARK: Wait, wait, wait.
THE COURT: Proceed.
(The following proceedings were held in open court:)
THE COURT: Proceed.
MR. HARMON: Thank you, your Honor.
MR. HARMON: Now, where do you actually begin the PCR process in LAPD SID? Where is the first step performed?
MR. YAMAUCHI: The extraction?
MR. HARMON: Yes.
MR. YAMAUCHI: Yes. That would be performed in the serology unit at piper tech.
MR. HARMON: Now, where is that in relation to the--the jury's seen a diagram. I'm not going to get it up again. But how far away is that from the evidence processing room?
MR. YAMAUCHI: Oh, I'd say over a hundred feet.
MR. HARMON: Okay. How did you get these racks with the microcentrifuge tubes from the evidence processing room to serology?
MR. YAMAUCHI: Well, I--they were capped and I carried them there.
MR. HARMON: Okay. Now, you've referred to something that lists the order in which the samples were processed that you used to help refresh your recollection. What are you referring to?
MR. YAMAUCHI: Well, that's my extraction record.
MR. HARMON: And is that the order that the samples were actually processed by you?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: No, it's not, but it refreshes my recollection as to the last one I put on there.
MR. HARMON: Okay. And with regard to the next step in the--or the first step in the PCR process, the extraction process, what order did you process the samples for extraction in this case?
MR. YAMAUCHI: They would be--as to the item number in this--on this sheet, which is a different number from what the actual item number is, there's a listing of the extraction number, which is 84, and then it goes chronologically down through 21. I usually set my tubes up in that order.
MR. HARMON: Okay.
MR. YAMAUCHI: For the extraction.
MR. HARMON: Sure. And would you please describe the order in which you processed these tubes for extraction? If you need to refresh your recollection, that would be fine.
MR. YAMAUCHI: Okay. According to my extraction record, item no. 9, glove, A, backside sample is 84-1 followed by item no. 9, glove B, thumb sample, glove C, inside back of wrist, glove D, back of--back below little finger and then item no. 112, which as we discussed later, its actual evidence item number is different, but that would be the photo item number at that time.
MR. HARMON: That's LAPD item no. 47, the evidence item?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Go ahead.
MR. YAMAUCHI: And then item no. 113--wait. I skipped over the control. But one or 47 with the red stain and then its control and then listed on my sheet is item no. 113, which is 48, red stain, followed by its control and so on for 114 and then 115 and then 117 and then 106 and then 107 and finally item no. 18, O.J. Simpson blood exemplar.
MR. HARMON: Okay. You started skipping there. Did you process the substrate controls with 49, 50 and 52 right after you did the red stain?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: When did you process the 49 substrate control with respect to the red stain?
MR. YAMAUCHI: In the extraction, it would have been one behind that.
MR. HARMON: One behind the red stain?
MR. YAMAUCHI: Yes.
MR. HARMON: And then when did you process 50 control with respect to the 50 red stain?
MR. YAMAUCHI: Right behind the 50 stain.
MR. HARMON: And before 52?
MR. YAMAUCHI: Yes. Keep in mind though that to a certain extent, this is all happening at the same time period. It's just that you can only open one cap at a time like I described before. So there is actual--there is an actual process.
MR. HARMON: And so you--in this step as well, you've never opened more than one tube at a time?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: In this part of the processing, do you ever open more than one tube at a time?
MR. SCHECK: Still leading.
THE COURT: Overruled.
MR. YAMAUCHI: No.
MR. HARMON: And then you mentioned 106 and 107, that those correspond to 41 and 42?
MR. YAMAUCHI: Yes.
MR. HARMON: And did 41 also have a substrate control?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. HARMON: Did 42 also have a substrate control?
MR. YAMAUCHI: Yes.
MR. HARMON: Why did you process 41 and 42 at the end of the line as you've described them?
MR. YAMAUCHI: I--I really can't give a particular reason for that.
MR. HARMON: Okay. How about the reference tube or the--by now, it's been the cutting from the fitzco card. Why was that last in the order you processed things?
MR. SCHECK: Objection. Well, withdrawn.
MR. YAMAUCHI: Yeah, it was the last thing I was working on and--I don't know. Maybe I subconsciously grouped them up together as exemplars in a group.
MR. HARMON: And were there also other items that you processed in this--in this extraction process period?
MR. YAMAUCHI: Yes. There would be blood standard no. 1.
MR. HARMON: What is that?
MR. YAMAUCHI: Described earlier, we were talking about controls. Well, within our analysis, our--the laboratory testing, we have controls that go beyond the ones that are just collected at the scene. There are both positive and negative controls. The positive controls show us that yes, you do get this certain type--the process works, and, you know, it's what you expect. The negative controls shows you that there's no contaminating factors or anything weird like that going on. In this case, blood standard no. 1 is what I use as a positive control, whereas the next one down after that is the cloth control, and that would be utilized as a negative control.
THE COURT: All right. Mr. Harmon, I think this would be a good point.
MR. HARMON: Okay.
THE COURT: Ladies and gentlemen, I'm going to take a brief recess. Please remember my admonitions to you. Let me ask you to step back into the jury room at this time. Mr. Yamauchi, you can step down.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: The record should reflect all the jurors have withdrawn from the courtroom.
MS. CLARK: Your Honor, the People would like to be heard with respect to the last ruling. I think that--I think that the Court mischaracterized the testimony offered by the witness concerning what he heard and it has nothing to do with the Defendant's statement at all. Matter of fact, I don't even know if the Court has ever read the Defendant's statement, but I think that would be germaine. Excuse me, Mr. Scheck. Let me address the Court if you don't mind. I have read the statement and am very familiar with it. The statement bears no resemblance to what this witness testified to. This witness testified to a news report where it was I believe stated, at least in his recollection, that the Defendant was in Chicago at the time that he received the call. We already have testimony to that effect. That's nothing new and it's certainly not a part of his testimony--I mean a part of the Defendant's statement. To say that his recollection of a news report somehow opens up the Defendant's statement makes no sense at all. And I think that the Court needs to look at the statement itself. But the testimony, if we have it read back, will make that very clear. He was watching the news. He saw a news program saying the Defendant was in Chicago, and he--so he concluded, this witness concluded--
MR. SCHECK: Your Honor--
MS. CLARK: --that he had an alibi.
MR. SCHECK: --could we have the witness leave the room?
THE COURT: It's not necessary.
MS. CLARK: The witness knows what he testified to. He just said it. And to say somehow--for the Defense to argue that somehow that opens up the Defendant's statement is ridiculous. He's talking about a news report and conclusion he drew from that news report. What does that have to do with what the Defendant said?
THE COURT: Well, here's the problem. What Mr. Yamauchi said was, quote, "Like I was saying, I heard on the news, well, yeah, he's got an air-tight alibi. He's in Chicago and, you know, that--and it's his ex-wife and this and that, and I go, oh, well, he's probably not related to the scene." The problem here is, he's got an air-tight alibi. Now--
MS. CLARK: That was this witness' conclusion, your Honor.
THE COURT: I understand that. The problem is, a party has brought in part the alibi part, "He's got an alibi." They have brought in--I think you've got a 356 problem.
MS. CLARK: We don't have a 356 problem, your Honor. We brought out this witness' entire knowledge of the events and he's not premising that on his knowledge of the Defendant's statement because he didn't know what the Defendant's statement was. No one did. How could that possibly be a 356 issue with respect to a Defendant's statement when he didn't even know about it? He's not talking about that. He's talking about his conclusion drawn from the fact that he heard the Defendant was in Chicago. How could that possibly relate to the content of the Defendant's statement? He made no mention of the content of the statement.
THE COURT: The statement is--the statement is, "He's got an air-tight alibi. He was in Chicago."
MS. CLARK: That was this witness' conclusion, your Honor. Not in reference to that statement. He made no reference to the Defendant's statement, and he didn't even know about the Defendant's statement. How could we possibly have a 356 in a situation where the witness doesn't even know what that is? The witness is talking about his state of mind, what he concludes from a news report, nothing to do with the Defendant's statement. So how can we have a 356 issue with reference to a statement this witness never talked about, never knew about, never mentioned?
THE COURT: You asked him a question that elicited, "He's got an air-tight alibi. He's in Chicago."
MS. CLARK: That was this witness' opinion, your Honor. What does that have to do with the Defendant's statement, which by the way does not state that he had an air-tight alibi because he was in Chicago. That was not his statement.
THE COURT: All right.
MS. CLARK: So how could we possibly have a 356 on that?
THE COURT: All right. Points and authorities tomorrow morning, 9:00 o'clock.
MS. CLARK: All right.
MR. COCHRAN: May we be heard?
THE COURT: Oh, sure.
MR. COCHRAN: We're certainly not going to yell at your Honor and become hysterical. We would point out--
MS. CLARK: I object to that characterization, your Honor. That kind of personal attack is very improper and inappropriate. The Court knows that it's simply advocacy. I'm not yelling at anyone, and for Mr. Cochran to make that kind of sexist remark, "Hysterical," I take great umbrage at it and I think the Court should not countenance that kind of behavior.
THE COURT: I don't.
MR. COCHRAN: Is she finished? Your Honor, I'm not going to yell at your Honor. I'm going to try to deal with the facts. Mr. Scheck, as the Court is quite aware, tried to object at the appropriate time and we even had a sidebar in this regard. The People brought this matter out. They're hoisted by their own petard. We will welcome the opportunity to do this, your Honor. I think you're absolutely right, it's a 356 problem. This witness was very clear. They brought it out to the jury, and now we think we have the right to bring out Mr. Simpson's entire statement. We have no objection to your Honor seeing that statement. We have no objection to the points and authorities, but we think it's very clear they've opened the door, your Honor, with a Mac truck, and we think we can walk through it, and I think it's very appropriate to do that.
THE COURT: All right. Points and authorities tomorrow morning, 9:00 o'clock. All right. We'll take a 15-minute recess.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Let's have the jurors, please.
MR. HARMON: Your Honor, are we going to go to 4:00 today?
THE COURT: Yes.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we've been rejoined by all our jury members. Mr. Yamauchi, would you resume the witness stand, please. All right. Mr. Harmon.
MR. HARMON: Thank you, your Honor.
MR. HARMON: Mr. Yamauchi, you had mentioned that the next tube in order was the cloth control. Can you explain to the jury what the function of the cloth control is in the PCR DQ-Alpha processing?
MR. YAMAUCHI: It acts as a negative control in the analytical process for that particular step. From that point on, it would show us whether something funny happened or not.
MR. HARMON: When you say "Show us whether something funny happened," can you give us an idea what you mean by that?
MR. YAMAUCHI: Well, it's kind of inherent in the way I described that. By negative control, we expect it to come up negative. But if it comes up and it shows that there's some activity or something there, then it's quite possible some of our solutions at that point could have been contaminated. And this would be a way that we can double-check and know later on if something was astray or different that--at this point, a contaminant was present.
MR. HARMON: And how would that tell you if any of those things happened, that control?
MR. YAMAUCHI: That control? Like I was saying before, generally speaking, we expect it to be negative. But if some activity comes up throughout the whole process where we see something on a strip, then we know that perhaps something happened at that stage and it would help us and aid us in troubleshooting.
MR. HARMON: When you say "See something on a strip," you mean a typing result?
MR. YAMAUCHI: Yes.
MR. HARMON: And what about the next control in order after the cloth control on this first set of DQ-Alpha typing? What was that after the cloth control?
MR. YAMAUCHI: On my extraction sheet, there's nothing else after the cloth control.
MR. HARMON: Okay. I believe at some later point, you also had amplification controls?
MR. YAMAUCHI: Yes. That's correct.
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. HARMON: Your Honor, at this point, I would like to have marked as People's 281 for identification a photo display board, the LAPD PCR typing board.
THE COURT: All right. 281.
(Peo's 281 for id = display board)
MR. HARMON: Okay. Mr. Yamauchi, you've generally described the extraction procedure that you utilized in this case. And referring to People's 281 for identification, could you step down and, using the pointer, could you please describe what's shown in the photographs starting at the top horizontal strip that we've boxed in? It's entitled "Piper tech extraction." Now, the jury has heard what piper tech is, but you mentioned that the extraction is in the serology room?
MR. YAMAUCHI: Serology, yes.
MR. HARMON: Okay. And in the left-hand photo under "Piper tech extraction," could you explain what you are doing in that photograph?
MR. YAMAUCHI: Okay. At this point right here, the first step is to add one unknown of sterile water. And that's to get out some extraneous components that may or may not be a problem. And one case in point would be the particular group that's labeled "Blood, red." There's no inhibitor of PCR process. So at this point here, by adding the water, it puts that group into the inclusion and it can later be separated from the DNA that were actually after.
MR. HARMON: Mr. Yamauchi, could you try to keep your voice up because you've got your back to the Court reporter. I know it's important that we all get to hear you, okay? Okay. What's in the next photograph, the middle photograph, under pipe tech extraction?
MR. YAMAUCHI: I believe I'm actually putting the water into the tube at that point.
MR. HARMON: And is that the same tube that you started out by putting the cuttings that you made over in the evidence processing room there or is that a different one?
MR. YAMAUCHI: Yes. That would be what's going on there.
MR. HARMON: Okay. And then over in the right-hand side, what is that that you're doing and what is that machine?
MR. YAMAUCHI: Oh, okay. After the water is placed into the tubes and allowed to soak for a--about 20 minutes or so, it's then put into the--what's called centrifuge--microcentrifuge--microcentrifuge tubes. This is what I'm doing. Goes into that instrument and spins it down at a high volume. All the solid components or heavy components like DNA, for example, are going to be forced towards the bottom while the other components that are in solution will just remain in solution.
MR. HARMON: Okay. Now, what do you do with these tubes that are--after they've been centrifuged at the end of the process?
MR. YAMAUCHI: At this point, there's another step called--it's kind of a mixture of chemical called chelex and it acts in a specific function in the extraction process which--and this is kind of weird because they're not really sure what its actual action is, but they do know that it does aid in taking out a component that could help in the degradation of DNA. So to a certain extent, it acts as kind of preservative.
MR. HARMON: Now, are there different forms of extraction processes that one can do in order to do the PCR DQ-Alpha typing?
MR. YAMAUCHI: Chelex is the one we use at our lab or the one that I use in this case. There's also what's known as a pheno chloroform extraction.
MR. HARMON: Is that what's known as organic extraction?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Now, are you familiar with the amplitype user guide for PCR DQ-Alpha typing that's provided by the manufacturer?
MR. YAMAUCHI: Yes.
MR. HARMON: Are both of those extraction processes described in the user guide?
MR. YAMAUCHI: Yes, they are.
MR. HARMON: Why did you do the chelex extraction procedure in this case?
MR. YAMAUCHI: Well, generally speaking, that's the procedure that we use or I use personally most often, and that would be one reason. The other reason would be that it actually has lesser steps and it is faster.
MR. HARMON: Okay. And do you process the evidence--or strike that. When you perform the extraction process, is it your practice to never open more than one tube at a time?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: He asked the same question. He always does that.
THE COURT: Speaking objection, counsel.
MR. SCHECK: I apologize.
MR. HARMON: Mr. Yamauchi, how many tubes do you open at any given time during the extraction process?
MR. YAMAUCHI: The same number goes for this process, one tube at a time.
MR. HARMON: Is that something you would adhere to through the whole PCR DQ-Alpha process?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. HARMON: Same reasons you described in the beginning?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. HARMON: Now, is--could you describe how long the chelex extraction process takes in comparison with the organic extraction process?
MR. YAMAUCHI: Well, I haven't done the organic one in a while, so I would have to reference that to get a time frame on it. But as far as the chelex is concerned for bloodstains, it's in an hour and a half about you can get the extraction completed.
MR. HARMON: And is that the normal amount of time that it usually takes you?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained.
MR. HARMON: How long does it usually take you to perform the chelex extraction process in other cases?
MR. SCHECK: Objection. Vague with respect to similar.
THE COURT: Overruled.
MR. YAMAUCHI: Yes. An hour and a half.
MR. HARMON: Now, at the end of the extraction procedure, where do all the tubes end up?
MR. YAMAUCHI: They would have been done in that same rack closed off.
MR. HARMON: How do they get from the centrifuge to the rack?
MR. YAMAUCHI: Well, I take them out.
MR. HARMON: And then what do you do after you put them in a rack?
MR. YAMAUCHI: After they're put in a rack, see, the next step would be amplification. So that rack of tubes would have to go over to where we have our thermal cycler, and that's the machine we use to do the amplification. We have that setup in our laboratory over at Parker Center facility. So there's a space difference of about a couple miles maybe or so, hop in the car and drive over there.
MR. HARMON: Now, are you familiar with the provisions in the amplitype user guide with respect to the relationship of the amplification room to other work areas in the PCR DQ-Alpha process recommendations?
MR. YAMAUCHI: The recommendations, safety precautions, they want all these rooms basically separated off in space and especially the amplification room and extraction and examination areas.
MR. HARMON: Why is that?
MR. YAMAUCHI: To eliminate the chances of cross-contamination. Especially of interest at this point is, when you're dealing with the amplification area, there is a second type of contaminant called the--well, you've probably heard this already--PCR carry-over. It's where part of the PCR process is more likely to contamination because of its perfect size and sequence. It's more likely to be a harmful contaminant. That's why we take extra precautions to keep this area physically out of the way of the other areas where we do our extractions and our evidence analyzing.
MR. HARMON: And yours is pretty separate then?
MR. YAMAUCHI: Yes. In our case, it is.
MR. HARMON: Are you aware of any other laboratory that has those two rooms so far apart?
MR. SCHECK: Objection. No foundation.
THE COURT: Overruled.
MR. YAMAUCHI: No.
MR. HARMON: How do you get from piper tech serology to Parker Center? How did you get there on June 14th in this case?
MR. YAMAUCHI: Via car.
MR. HARMON: And government car?
MR. YAMAUCHI: Yeah. City car.
MR. HARMON: Will you describe how you transported the rack with the tubes?
MR. YAMAUCHI: Well, the closed-off tubes are in the rack. And then one of those chem-wipes I described earlier, there's larger versions, I'll wrap that whole rack and everything up in the chem-wipe and transport it that way.
MR. HARMON: Why did you put the chem-wipe on?
MR. YAMAUCHI: Mostly because when you're walking along around the police station, it makes the detectives and people over there kind of nervous if they see little test-tube things. So I just want to make sure it's covered up.
MR. HARMON: Can you describe the facility or the rooms that you have over there? Are they normally staffed by anybody?
THE COURT: Over where?
MR. HARMON: At Parker Center.
MR. YAMAUCHI: At Parker Center, it would just be the DNA people.
MR. HARMON: And is there somebody whose assignment it is to be there all the time?
MR. YAMAUCHI: No.
MR. HARMON: How is it utilized?
MR. YAMAUCHI: When we need to do amplifications, we go wherever.
MR. HARMON: Is that the only function for those rooms?
MR. YAMAUCHI: Basically, yes.
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. HARMON: Basically, yes?
MR. YAMAUCHI: Yes.
MR. HARMON: Is it--do you know whether or not it's routinely kept locked?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And where do you obtain the key?
MR. YAMAUCHI: Well, I have a key and Erin Riley does and Harry Klan because we work in that area. I believe some supervisors do too.
MR. HARMON: I'm not sure--Harry Klan, that's a new name we haven't mentioned yet. Who is he?
MR. YAMAUCHI: I'm sorry. He's the other DNA analyst that we have.
MR. HARMON: Okay. Do you recall about what time it was--or strike that. Let's just talk generally. You get over to the--you got your key to the amplification area, Parker Center. Will you describe what's shown in the photograph--on the left-hand side, it's labeled, "Pre-amplification." What are you doing there?
MR. YAMAUCHI: This is a room that's separated from the amplification room. Amplification room is the one with the instrument thermocycler and this--in the pre-amplification area is where we set the tubes up, process them with the right chemicals to be taken over and placed into the machine.
MR. HARMON: How many different rooms are there in the amplification area at Parker Center?
MR. YAMAUCHI: We have one two three, four rooms in that area.
MR. HARMON: And you've described the pre-amplification--is that the same room as the amplification takes place?
MR. YAMAUCHI: No, it's not.
MR. HARMON: Okay. So the photo in the left-hand side shows what you've just described, and that's in one room, and then the next photo, it's labeled "Amplification," what's going on in that photograph?
MR. YAMAUCHI: That's where the actual amplification process takes place. That's where the thermal cycler machine is housed, in that room.
MR. HARMON: And at this point in the process, are there additional controls that are added to the controls that you've described in the extraction process?
MR. YAMAUCHI: Well, those would be set up over here, but yes, there are. For the amplification process, we have another positive and negative control.
MR. HARMON: And what is their function?
MR. YAMAUCHI: Well, like I was saying, before you have the controls that we take at the scene, we've got controls at that extraction point. We also have another set of controls at this point where we're going to run the amplification just to give us more information again.
MR. HARMON: What's shown in the next photo on the right, the hibridization--the one that's labeled "Hybridization," what are you doing there?
MR. YAMAUCHI: That's to display the hybridization strips that we have, and those are the strips that contained the probes that we eventually get our results from.
MR. HARMON: Okay. This is all the commercially available product?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: Okay. And photograph 3--what does that photograph on the right-hand side show?
MR. YAMAUCHI: Okay. At Parker Center, after we do the strips, we've got to photograph them, and that's the area over there at Parker Center that we do that.
MR. HARMON: What are you actually taking photographs of?
MR. YAMAUCHI: The strips themselves.
MR. HARMON: Okay. Then what do you do with the strips?
MR. YAMAUCHI: We throw the strips away after we're done.
MR. HARMON: Why is that?
MR. YAMAUCHI: Because the strips themselves, they tend to discolor. They won't be as good as that original photograph if you hold on to them. So we have no reason to keep them.
MR. HARMON: At this point, generally speaking, as you do the procedure in Los Angeles Police Department, you've got photographs of the strips, and the board has another line entitled "Piper tech electrophoresis." Can you describe what's in the left-hand photo, picture of those doors?
MR. YAMAUCHI: That's the room at piper tech where we perform the product gels.
MR. HARMON: What is the name of that room?
MR. YAMAUCHI: Instrument room.
MR. HARMON: And where is that in relation to serology?
MR. YAMAUCHI: It would be separated from it by a wall, but kind of like right next to it.
MR. HARMON: Adjacent to one another?
MR. YAMAUCHI: Yes.
MR. HARMON: But separate rooms?
MR. YAMAUCHI: Yes.
MR. HARMON: And is there some sort of security device that monitors people coming in and out of the instrument room?
MR. YAMAUCHI: Yes. We also have to use those access cards for that.
MR. HARMON: Now, what do you need to take from the Parker Center at the end of the amplification and hybridization back to piper tech to take into the instrument room? What are you actually taking back there?
MR. YAMAUCHI: Have to take some of the amplified product from this--this reagent that's held in the thermal cycler, and that has to be brought back to piper tech to be analyzed in this product gel.
MR. HARMON: And what's the purpose of the product gel?
MR. YAMAUCHI: It's the kind to tell you whether or not the amplification process took place, and it can also give you more information as to a relative idea how much DNA was formed by the amplification although that's not real accurate.
MR. HARMON: A little while ago, you mentioned that it was important to avoid PCR product carry-over to keep the amplification separate from other areas.
MR. SCHECK: Objection. Leading.
MR. HARMON: It's foundation.
THE COURT: Overruled.
MR. HARMON: Do you recall discussing that a little while ago?
MR. YAMAUCHI: Yes.
MR. HARMON: Does bringing the PCR product back into the instrument room violate that?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: No. The reason we have it in the instrument room is because it's separated physically from serology where we do our extractions.
MR. HARMON: Are you familiar with other laboratories where all of these functions are done within the same building, but in different rooms?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: That sounds reasonable, yes.
MR. HARMON: What do you end up with at the end of the product gel electrophoresis?
MR. YAMAUCHI: You wind up with electrophoresis gel where the product is moved through the electrical field and so it can be visualized and noted.
MR. HARMON: Okay. We can take the board down. Do you want to have a seat again?
MR. SCHECK: Your Honor, before the board goes down, could we ask the witness about position?
MR. HARMON: Now, this board doesn't actually reflect everything in the same position and location as it was when you performed your tests on June 14th and June 15th, does it?
MR. YAMAUCHI: Well, this--this work area right here (Indicating)--
MR. HARMON: The product gel?
MR. YAMAUCHI: --was changed. We were on a bench area that was kind of around the corner from that at the time that I actually analyzed evidence in the Simpson case. But since then, we've had to move our stuff over to the other corner.
MR. HARMON: Same room?
MR. YAMAUCHI: Yes. Same room.
MR. HARMON: How many feet apart?
MR. YAMAUCHI: Oh, 10, 15 feet or so.
MR. HARMON: Okay.
THE COURT: Same equipment?
MR. YAMAUCHI: Yes. Equipment is the same.
MR. HARMON: Okay. You can have a seat again, Mr. Yamauchi.
(The witness complies.)
MR. HARMON: Now, you've described the samples that you extract--that you sampled and that you extracted. Did you subject them to the PCR DQ-Alpha testing process in the manner that--in the general manner and sequence that is shown on the exhibit 281, the photo display board?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. And if you can, I would like you to break down the process and ask about how long each step took, if that's possible to do. For example, how long did the chelex extraction process take you on June 14th for the samples that you've described to this jury?
MR. YAMAUCHI: As in any case, for example, or situation, it's about an hour and a half.
MR. HARMON: Okay. And then from the extraction process, did you go right over to Parker Center after that?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled.
MR. YAMAUCHI: Well, I don't know when I had my lunch that day, but that would have been the next step. Eventually, I would have had to drive over there.
MR. HARMON: And you process them, amplification, hybridization and photography, in the manner that's shown on the photo board 281 for identification?
MR. SCHECK: Objection. Asked and answered.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. And did you obtain PCR DQ-Alpha results on samples that are in the list of samples that you've previously described to the jury?
MR. YAMAUCHI: Yes. I analyzed those samples.
MR. HARMON: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. SCHECK: Your Honor, there's a matter that we have to approach on just prior to--
THE COURT: With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at sidebar. What's the problem?
MR. SCHECK: Your Honor, I mentioned this the other day; that I have an objection to them putting in a typing strip that shows alleles where no C dot appears. I believe it was in fact one of the last questions asked of Mr. Sims on his redirect examination where he indicated--and I think the literature will indicate--that when there's no C dot, it's not a reportable result.
THE COURT: Isn't this a little premature?
MR. SCHECK: No. He's about to do it.
MR. HARMON: It's a little premature.
MR. SCHECK: My point is that I have an objection to showing the jury any evidence of the strip where there's, you know, dots lining up with no C dot because there is absolutely no scientific foundation whatsoever, even through the Prosecution's own witnesses, for showing this to the jury.
THE COURT: How many strips?
MR. HARMON: Off the top of my head, three. Now, our witnesses, Mr. Sims and Miss Cotton, have both said that the distinction is between a reportable result and reporting the data that's seen there; and very clearly, Mr. Sims and Miss Cotton each said not having the C dot, all that means is, we can't say that there's not something else there because the C dot is not there as a control. But what's there is there, and we can say this is what we saw and the distinction is between reporting a result, that this is a 1.1, 1.2--
THE COURT: What does the amplitype user guide say about no C dot?
MR. HARMON: I'm pretty sure it says the same thing. We've had testimony from--I mean this was very specifically elicited to address this.
THE COURT: Let me see the user guide.
MR. HARMON: I think you'll see--I can't remember which result we have, but there's one on the board already. This is in that category.
THE COURT: Let me see the user guide where it talks about no C dot.
MR. HARMON: Okay.
(Brief pause.)
MR. HARMON: We already have one of them up there by Robin Cotton. Your Honor, item 7 and 56 are in the same category and his testimony's been in there. It's actually the same phenomenon.
THE COURT: The objection is being made now is the problem.
MR. HARMON: I'm saying, the testimony explained the basis for doing this from both Mr. Sims and--
MR. SCHECK: May I be heard whenever you're ready?
THE COURT: All right. Mr. Scheck.
MR. SCHECK: Yes. First of all, Mr. Sims' testimony--I don't recall Dr. Cotton's precise testimony--but I submit is consistent with the user guide. They take the position it's not reportable, meaning no scientific conclusion can be drawn from it. The fact they don't know the type, don't throw away the strip is just a matter of documentation. The C dot, as indicated in the user guide and is clear from all the testimony, it's supposed to be the weakest dot on the strip. When the C dot is not present, now quoting, an adequate determination of type cannot be made since there's a possibility that other probes seen are also beyond the threshold of detection. The presence of the C dot provides assurance that appropriate typing should be clearly visible. It's clear from the scientific community that if you don't have a C dot, it's not a reliable or accurate result and you can't interpret what you see there because there could be other alleles that are not present. And so the test is, it does not have adequate scientific foundation. Obviously they want to put in results without a C dot to try to draw inferences that they--maybe it is consistent with other results or maybe one can draw some conclusion from it. But there is no scientific testimony and there's no support even in the user guide for their--in terms of proper scientific foundation for doing it. I realize we didn't have a Frye hearing on this, but this one is off the charts.
THE COURT: Mr. Harmon, let me suggest this.
MR. HARMON: I have a lot to say on this, your Honor. Mr. Scheck does not speak for the scientific community. You can surely appreciate that. And what he said, we can never say even when the C dot is there that there's not something else there. And we're heard over and over again that all the scientists can say, "I see something there," and then sometimes he can report it. And that's the distinction that he's blurring. When something's there, it's there. It doesn't mean that there couldn't be something else there. That same statement holds true for every result up there. There could always have been something else there.
THE COURT: All right. Counsel, what I propose to do is take your objection under submission. I am going to direct Mr. Harmon not to go into the results this afternoon where there is no C dot indication.
MR. HARMON: Okay.
THE COURT: I would like you to provide for me tomorrow morning by 8:30 the quotes in the transcript where it's discussed the validity of presenting to a finder of fact from Sims' and from Cotton's testimony.
MR. HARMON: I will be happy to.
THE COURT: I have to tell you, my inclination is that since the user guide says it's not--the user guide says a DNA probe strip with no visible C dot should not be DQ-Alpha typed. So I've got a problem with this. So let's proceed.
MR. HARMON: Let me give you another topic that it relates to directly, and this is their real agenda here. These are all results that do not show any 1.1 except for 47. And in addition to showing what's there by showing what's not there, they totally demolish the idea there was this systematic cross-contamination among all these samples. And that's why--and that's why it's important to show what's there.
THE COURT: At this point--
MR. HARMON: I'm not to report it. I understand, your Honor.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. You may proceed.
MR. HARMON: Your Honor, may I have a moment so we can start that process?
THE COURT: Surely. Mr. Blasier, let me see you without the court reporter, please.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MR. HARMON: Thank you, your Honor.
MR. HARMON: Mr. Yamauchi, could you step down here for a second and--
(The witness complies.)
MR. HARMON: Okay. I wanted to start out by describing some of the results you obtained. Mr. Yamauchi, you have described four separate stains from the glove, 9A, B, C and D, which you subjected to the PCR DQ-Alpha process; is that correct?
MR. YAMAUCHI: Yes.
MR. HARMON: How many of those stains or cuttings produced results in this case?
MR. YAMAUCHI: I have to check my notes.
MR. HARMON: Sure.
THE COURT: And, Mr. Yamauchi, could you keep your voice up, please? Thank you.
MR. YAMAUCHI: Two of the stains.
MR. HARMON: And which two did not produce stain--results?
MR. YAMAUCHI: A and b.
MR. HARMON: And these were two of the leather cuttings?
MR. YAMAUCHI: Yes.
MR. HARMON: And did that surprise you given what you've talked about in terms of leather inhibiting the PCR process?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Sure.
MR. HARMON: You mentioned something about leather inhibiting the PCR process?
MR. YAMAUCHI: Yes.
MR. HARMON: What was that?
MR. YAMAUCHI: Leather is known to inhibit the amplification part of the PCR process. So to answer your question, it didn't surprise me.
MR. HARMON: Okay. Have you read--is that mentioned I think in the user guide?
MR. SCHECK: Objection. Leading.
THE COURT: Overruled. Is that mentioned in the user guide?
MR. YAMAUCHI: I'm not sure if--I know--if it's in the user guide, but it is in other literature.
MR. HARMON: Okay. What about 9C? What PCR DQ-Alpha results were obtained on 9C, the sample?
MR. YAMAUCHI: The results I obtained on that item, 1.1, 1.3, 4 with a possible 1.2.
MR. HARMON: Okay. And 9D, what result did you obtain from 9D?
MR. YAMAUCHI: 1.1, 1.3, 4, possible 1.2.
MR. HARMON: Okay. Could you, if you would use the pointer, and to the best of your ability--I know you didn't take these pictures. Could you get the pointer, Mr. Yamauchi, and show us the area on the glove where 9C was removed from?
MR. YAMAUCHI: I'm going to have to refer to my notes.
MR. HARMON: Sure. Would that help?
MR. YAMAUCHI: Yes.
MR. HARMON: You realize the two photos show the glove inside out and then the bottom photo shows the palm side of the glove on the outside?
MR. YAMAUCHI: Yes. Okay. The--9C was taken somewhere in this area (Indicating).
MR. HARMON: Okay. You're pointing to the general area--could you point there again?
MR. YAMAUCHI: Somewhere around here (Indicating).
MR. HARMON: The notch area?
MR. YAMAUCHI: Wrist area, yeah.
MR. HARMON: And you pointed to an area a little distance away from G13?
MR. YAMAUCHI: Yeah. Approximately.
MR. HARMON: Okay. Where was 9D taken from?
MR. YAMAUCHI: That would actually be on the other side of the glove.
MR. HARMON: On the back?
MR. YAMAUCHI: Yeah. The backside.
MR. HARMON: On the outside or inside?
MR. YAMAUCHI: On the outside.
MR. HARMON: Was 9C taken from the inside or the outside?
MR. YAMAUCHI: That was the inside liner.
MR. HARMON: So it was the inside liner?
MR. YAMAUCHI: Yes.
MR. HARMON: Back of the hand?
MR. YAMAUCHI: For 9C. 9C was the inside liner. 9D was on the back of the glove around that area.
MR. HARMON: Okay. Well, let's go back to 9C. Was it the back of the hand--if my hand, my right hand was in a glove, would the surface touching my hand that you got 9C from, would that be on the back of my hand or on the palm side of my hand?
MR. YAMAUCHI: I believe the back.
MR. HARMON: Okay. And then 9D was from where?
MR. YAMAUCHI: If you were to turn this glove around, it would be along this edge here, somewhere in that area (Indicating).
MR. HARMON: Along the--why don't you show on my hand where that was.
MR. YAMAUCHI: Somewhere around here (Indicating).
MR. HARMON: I'm not sure what this is called. I know there's a medical term for it, but right here?
THE COURT: Isn't that the heel?
MR. HARMON: Okay.
THE COURT: The jurors' got the idea. So--
MR. HARMON: If you would--I'm not sure you could reach it. Could you remove from the result board, 272-A, the cover over "PCR results"? Can you reach it?
MR. YAMAUCHI: No. Needs somebody tall.
MR. SCHECK: Mr. Neufeld is not here. So--
MR. HARMON: Okay. And at the time--I know ultimately you were provided reference samples in this case. But at the time of this first run, you did not have reference samples from Nicole Brown and Ronald Goldman, correct?
MR. YAMAUCHI: Yes, that is correct.
MR. HARMON: But ultimately, you did process them the next day?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. And are the type that are shown up on the board, the DQ-Alpha types for Mr. Simpson, who was run in this first set of runs, and Nicole Brown and Ronald Goldman, the DQ-Alpha results up in the top there, are those consistent with the results that you obtained on the samples that were provided to you?
MR. SCHECK: I'll stipulate to it.
THE COURT: Is that stipulation acceptable to the People?
MR. HARMON: Yes, your Honor.
THE COURT: All right.
MR. HARMON: We would stipulate that those are the results that were obtained.
MR. SCHECK: Yeah.
THE COURT: Yes. Thank you, gentlemen.
MR. HARMON: That's mine.
MR. HARMON: Will you remove under the "Not excluded" column from among the three reference types that you typed in this case whom you were unable to exclude from the results that you obtained on 9C and 9D?
MR. YAMAUCHI: (The witness complies.)
MR. HARMON: Okay. Is that correct; that you were not able to exclude either Nicole Brown or Mr. Goldberg or Mr. Simpson from those tests?
MR. YAMAUCHI: As a possible mixture in conjunction with those results.
MR. HARMON: Okay. Now, is there some question about the possible 1.2 as it relates to Mr. Simpson?
MR. YAMAUCHI: That--well, we really can't make a statement once a mixture is present whether that's there or not.
MR. HARMON: And had you done additional typing, might you been able to make a better statement?
MR. SCHECK: Objection, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: I'll just move on. Thank you.
MR. SCHECK: I move to strike that and--
THE COURT: The jury is to disregard implication of any of that. Proceed.
MR. HARMON: Could we get the Bundy photo board and the Bundy result board, People's 165 and 259, your Honor?
THE COURT: Yes.
MR. HARMON: Mr. Yamauchi, I'm going to direct your attention to the results you obtained from item 48, which is--was photo id no. 113. Did you obtain a result on item 48?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: And what result did you produce in your PCR DQ-Alpha typing?
MR. YAMAUCHI: 1.1, 1.2.
MR. HARMON: Okay. Your Honor, with the Court's permission, I would like to--I've got a cover that I--
MR. HARMON: Could you put this over the DQ-Alpha results that are on 48? Sure. Just cover over--there you go.
MR. YAMAUCHI: Right there? (The witness complies.)
MR. HARMON: Just so the record can be clear as to what Mr. Yamauchi just did, your Honor, he placed the cover over the DOJ's DQ-Alpha, D1S80 results that reflects his DQ-Alpha results.
THE COURT: Yes, it being a magnetic removal strip.
MR. YAMAUCHI: It's a--
MR. SCHECK: Can I make a suggestion? If he moves the strip to the right, I think you can see everything.
THE COURT: Well, it's his presentation.
MR. SCHECK: All right.
MR. HARMON: So, Mr. Yamauchi, if our board's correct--okay. I'm outvoted. I'm putting it to the right of the DOJ DQ-Alpha 1.1, 1.2 results. So if our board is correct, would you get the same results for PCR DQ-Alpha?
MR. YAMAUCHI: Yes.
MR. HARMON: Did you get the same results from DQ-Alpha if our board is correct that cellmark did?
MR. YAMAUCHI: Yes.
MR. HARMON: In addition to processing 48, did you also process the 48 substrate control through the entire PCR DQ-Alpha process?
MR. SCHECK: Objection. Leading. Asked and answered.
THE COURT: Overruled. Overruled.
MR. YAMAUCHI: Yes, I did.
MR. HARMON: And what results did you obtain?
MR. YAMAUCHI: That came out negative.
MR. HARMON: No typing results?
MR. YAMAUCHI: Right.
MR. HARMON: I'd like to--just for the record, your Honor, I've skipped 47 until tomorrow.
THE COURT: Proceed.
MR. HARMON: 49, did you obtain any typing results from stain no. 49, which is identified as photo id no. 114?
MR. YAMAUCHI: No, I did not.
MR. HARMON: And when you say you got no results, can you provide any explanation for that?
MR. SCHECK: Objection. Calls for speculation.
THE COURT: Rephrase the question.
MR. HARMON: Sure.
MR. HARMON: Was there anything in your--strike that. I'll move on. So no typing results in 49?
MR. YAMAUCHI: No typing results.
MR. HARMON: Did you process 49 substrate control through the entire process?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Did you obtain any results?
MR. YAMAUCHI: No, I did not.
MR. HARMON: And so there was no typing activity in 49 substrate control?
MR. YAMAUCHI: No.
MR. HARMON: Did you obtain a result on item 50 from the walkway at Bundy?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: That's photo id no. 115?
MR. YAMAUCHI: Yes.
MR. HARMON: What results did you obtain through the PCR DQ-Alpha marker?
MR. YAMAUCHI: On no. 50, I got 1.1, 1.2.
MR. HARMON: Okay. Would you place this over to the right of the DOJ DQ-Alpha results?
MR. YAMAUCHI: (The witness complies.)
MR. HARMON: And if our board is correct, you got the same results as DOJ and cellmark did on the processing of that stain?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Did you process the 50 substrate control through the entire process just as you did the others?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: And did you produce any typing results for the substrate control for item 50?
MR. YAMAUCHI: No.
MR. HARMON: Did you obtain any results for item 52, that one that had the kind of a pinkish substrate control that you described earlier?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: That was photo id no. 117?
MR. YAMAUCHI: Yes.
MR. HARMON: What results did you obtain from item 52 that was out on the driveway?
MR. YAMAUCHI: 1.1, 1.2.
MR. HARMON: Okay. Would you put this cover up to the right of the DOJ DQ-Alpha results?
MR. YAMAUCHI: (The witness complies.)
MR. HARMON: You got the same DQ-Alpha result that cellmark and DOJ did from those stains?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Did you process the substrate control, the pinkish one that you described?
MR. YAMAUCHI: Yes.
MR. HARMON: And what results did you obtain on the substrate control?
MR. YAMAUCHI: No results.
MR. HARMON: Item 41, that was, I believe you described it earlier, as a potential reference sample from Ronald Goldman. Do you recall that description?
MR. YAMAUCHI: Yes.
MR. HARMON: Based on what Dennis Fung told you?
MR. YAMAUCHI: Yes.
MR. HARMON: And did you obtain any results from item no. 41?
MR. YAMAUCHI: No. No results.
MR. HARMON: Did you obtain any results from item 41C, the substrate control?
MR. YAMAUCHI: No.
MR. HARMON: Do you recall how long it took to do the PCR process from start to finish? When I say "Start," I mean from the time that you got to serology to begin the extraction process until the time you completed your tests that you've just described to the jury.
MR. YAMAUCHI: The per night each--
MR. HARMON: No. The length of time from start to finish.
MR. YAMAUCHI: For--we're talking about each set? Because I did do two days' worth.
MR. HARMON: Sure. June 14th. I mean the ones we've just presented to the jury.
MR. YAMAUCHI: Okay. Well, it took pretty much the morning, the day and into the early evening.
MR. HARMON: Okay. And at some point, did you communicate the results of your testing to Greg Matheson?
MR. YAMAUCHI: Yeah. That evening.
MR. HARMON: How did you do that?
MR. YAMAUCHI: By telephone.
MR. HARMON: Do you remember about what time that you finished or you left work that night?
MR. YAMAUCHI: I think around 8:00 or so. Might have been later.
MR. HARMON: Okay.
MR. HARMON: Your Honor, I can go on with a few other things, but this might--you want me to keep going?
THE COURT: Let's use the time.
MR. HARMON: Okay.
MR. HARMON: Now, Mr. Yamauchi, we have already--the jury's already seen some of the notes you've compiled as a result of your work in this first series of DQ-Alpha runs. Could you just briefly describe--they've seen some of the processing notes. But what sorts of notes and logs do you keep with respect to the DQ-Alpha processing? If you just start at the beginning and name--give us the titles of the reports and what their function is.
MR. YAMAUCHI: Oh, you mean like the DNA extraction record?
MR. HARMON: Sure.
MR. YAMAUCHI: Okay. That would be one of the sheets you start out with.
MR. HARMON: What sorts of information is recorded on there?
MR. YAMAUCHI: We record something to the effect of an item number or some identifying number as well as the extraction number and chronological order that that's associated with.
MR. HARMON: What's the next record that you keep in the sequence of events?
MR. YAMAUCHI: Well, then we would have the amplification record.
MR. HARMON: What does that record?
MR. YAMAUCHI: That records what samples are being amplified.
MR. HARMON: And are there numbers assigned at some point in the process?
MR. YAMAUCHI: Yes. The amplification record has amplification number and the chronological order corresponding to each of the sample tubes.
MR. HARMON: And are you actually looking at the sheet for this first run right now?
MR. YAMAUCHI: Yes.
MR. HARMON: What number was assigned to the series of samples that you processed?
MR. YAMAUCHI: It's amplification 61.
MR. SCHECK: Excuse me. May I--
THE COURT: Mr. Harmon.
MR. HARMON: Thank you, your Honor.
MR. HARMON: And then 61, and then you start with one and go down for the number of tubes that you have?
MR. YAMAUCHI: Yes.
MR. HARMON: And when do you actually fill out that sheet that has the 61 and then starting at 1 through however many tubes you have?
MR. YAMAUCHI: Prior to setting up the tubes.
MR. HARMON: Okay. At the end of the process, do you produce something that's called a "Serology casework summary sheet"?
MR. YAMAUCHI: Yes.
MR. HARMON: And what is that a reflection of, the serology casework summary sheet?
MR. YAMAUCHI: Well, we use it kind of like a reference card. Sort of like in the library, you've got a reference card so you can look things up quickly? Well, that's the clerical use that we have for this.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: So you've described on your amplification sheet that the actual numbers start with 61 and go 1 through however many tubes you have. What do you have described in the corresponding column in your serology casework summary sheet as far as number of tubes, the amplification tubes?
MR. YAMAUCHI: On that particular sheet, I mistakenly wrote 60 down.
MR. HARMON: 6--could you give us a little more information? 60 what?
MR. YAMAUCHI: For the amplification number. I started them off with 60. It should be 61.
MR. HARMON: Okay. Could I take a look at that and--
MR. HARMON: I can't find my copy. Can I take the witness' and have it marked as next in order, your Honor?
THE COURT: Or I can have it copied for you.
MR. HARMON: That would be better. Can I do that, your Honor?
THE COURT: All right. Why don't we take our break now rather than run around and make photocopies. All right. Ladies and gentlemen, we're going to take our recess for the afternoon at this time. Please remember all of my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regards to the case. As far as the jury is concerned, we'll stand in recess until 9:00 A.M. tomorrow morning. All right. And I'll see counsel at the sidebar without the reporter, please. All right. Mr. Yamauchi, you may step down. Tomorrow morning at 8:45.
(At 4:00 P.M., an adjournment was taken until, Thursday, May 25, 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 Wednesday, May 24, 1995
Volume 153 pages 29064 through 29317, 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 153 pages 29064 - 29317
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Day date session page vol.
Wednesday May 24, 1995 A.M. 29064 153 P.M. 29185 153
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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.
Montgomery, Renee 153 29066rh 29087bb (Further) 29107rh
Yamauchi, Collin 153 29154rh (Resumed) 29190rh
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ALPHABETICAL INDEX OF WITNESSES
Witnesses direct cross redirect recross vol.
Montgomery, Renee 153 29066rh 29087bb (Further) 29107rh
Yamauchi, Collin 153 29154rh (Resumed) 29190rh
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
276 - Photograph of 29109 153 a hand and titled "Types consistent with Simpson" (Computer printout)
277 - Chart entitled 29219 153 "Evidence sampling demonstration" with 5 photographs designated a thru e
278-A & 278-B - coin 29230 153 envelopes with two bindles
279 - 1-page document 29234 153 entitled "Serology item description notes"
280 - 1-page document 29245 153 entitled "Serology item description notes" with sketches
281 - Chart 29275 153 entitled "PCR DNA typing - Los Angeles Police Department" with 10 photographs designated a thru j