Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

ALSO PRESENT: Arthur Walsh, Deputy City Attorney.

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran and Mr. Scheck. The People are represented by Mr. Clarke. The jury is not present. Counsel, anything we need to take up before we launch back into this?

MR. COCHRAN: If I might, your Honor, just--good morning, your Honor.

THE COURT: Good morning, Mr. Cochran.

MR. COCHRAN: Good seeing you, your Honor. It is a good day. You don't seem to share my view of that. Judge, I wanted to just indicate to you that Mr. Sullivan is present and I indicated to him that I do not believe we will be calling Mr. Bosco today. We are going to be awaiting your Honor's ruling, at any rate, and he is in Orange County, and I have assured him that he would have at least a half day's notice before we would call him, and I wanted to make sure that was all right, so he is free to leave at this point?

THE COURT: Yes.

MR. SULLIVAN: Thank you.

MR. COCHRAN: Thank you, your Honor.

THE COURT: All right. Anything else we need to take up before we launch into Dr. Rieders? Mr. Walsh, good morning.

MR. WALSH: Yes, your Honor. The Defense served on the City of Los Angeles a subpoena duces tecum with a return set for today. I have filed a motion to quash that subpoena this morning. If the Court is going to hear that, I will wait, otherwise I will come back whenever you want to hear argument on that.

THE COURT: Mr. Cochran, when do you want to hear this? This was just presented to me about two minutes ago. I have not had the opportunity to read it.

MR. COCHRAN: We want to get to the jury as soon as possible. I would like to have this heard absolutely as soon as possible, your Honor. I have indicated to counsel in this search for truth I'm surprised they made this motion, but they have, and I want to resolve it as soon as possible, but we want these documents, so as soon as you set it.

THE COURT: I'm still working on the shield matter.

MR. COCHRAN: Yes. I appreciate that, your Honor.

THE COURT: Which although this is related to that.

MR. COCHRAN: Right. This should come behind that, right. Don't you think? I suppose--

THE COURT: All right. Today being Wednesday, August 2nd, how about if we take this up Friday morning, August 4th?

MR. COCHRAN: Nine o'clock?

THE COURT: Nine o'clock.

MR. COCHRAN: That's fine.

MR. WALSH: Thank you, your Honor. That will be fine.

THE COURT: All right. Thank you, counsel.

MR. COCHRAN: That is fine.

THE COURT: All right. Anything else before we invite the jurors to rejoin us?

MR. COCHRAN: I don't think so, your Honor.

MR. CLARKE: Just relating to the board, your Honor.

THE COURT: Mr. Clarke, good morning, sir.

MR. CLARKE: Good morning, your Honor. I don't know where the boards are at the moment.

MR. SCHECK: They are right over there. Do you want to work with the small copies?

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. CLARKE: Your Honor, would the Court like to view these on the easel?

THE COURT: Whatever is easiest. Probably the easel over by the jury box will be easiest to see.

(Brief pause.)

THE COURT: Let's have it quiet in the courtroom, please.

(Brief pause.)

THE COURT: All right. This is a board title of which is, "Percent of contamination by control" made through July, 1994.

MR. CLARKE: Yes. The Court may recall we had informal discussions with the Court last week about these various boards, and what I'm going to direct my comments to are simply four charts, for lack of a better term, that detail percentages of contamination. And if the Court will recall, they describe contamination was a percentage of typing strips as well as a percentage of runs or PCR hybridization runs--I'm sorry--PCR runs themselves. And the objection that I have to each of them is as to their argumentative nature. Now, this one, for instance, is labeled "Percent of contamination by controls" and I think when this is presented in this type of chart form, and this one refers to negative amplification controls, as well as extraction controls, that when this chart is used in that fashion I think it really constitutes closing argument as opposed to a legitimate use of a chart with a witness in front of the jury. Now, I think what may be most expeditious is if I showed the Court each chart and then address any further comments.

THE COURT: All right.

(Brief pause.)

THE COURT: All right. The next chart is entitled, "Runs: Percent with contamination by month, May, 1993 through August, 1994." It is in terms of percent. Along the bottom axis it appears to be ordered by month, May, `93, until August, `94. Underneath that are what appear to be fractions which are probably the actual number of runs.

MR. SCHECK: It is the underlying data.

THE COURT: The raw data. All right. Let's see the next one.

(Brief pause.)

THE COURT: All right. The third one is, "Strips: Percent of contamination and/or artifacts by month, May, 1993, through August, 1994." Again in terms of percent with the bottom axis being monthly with a fraction representing the raw data.

MR. CLARKE: And then one more, your Honor.

THE COURT: These are very nice, Mr. Scheck.

MR. SCHECK: Thank you, your Honor.

THE COURT: You are welcome.

(Brief pause.)

THE COURT: All right. The last one is, "Runs and strips: Percent of contamination and/or artifacts."

MR. SCHECK: Or that probably should be titled on the top "May through July, 1994." We need to put the date on there. Maybe I will have to spoil the presentation of it by writing in by hand "May through July, 1994" on the top. I didn't notice that. This is the bracketed period.

THE COURT: All right.

MR. CLARKE: The reason I believe these charts are argumentative to the point that they should not be utilized during the presentation--

THE COURT: Excuse me. Next time you go through those doors, you watch the doors.

AN UNIDENTIFIED LAW CLERK: All right. Sorry, your Honor.

MR. CLARKE: --is I believe they are argumentative, in particular because of the use of the terms "Contamination and artifacts." It is our belief that Dr. Gerdes will concede that in many, if not most instances, what is alleged to be contamination he will concede may not be contamination, so consequently in the course of presenting this type of information with the use of the term "Contamination and artifacts," I think it is argumentative to the point that it shouldn't be used during the presentation with the witness. I think it is the type of material that may be appropriate in closing argument, but I think to utilize that in front of a jury will again run a substantial risk of both misleading and confusing the jury due to its argumentative nature of these four charts.

THE COURT: All right. Mr. Scheck.

MR. SCHECK: Your Honor, we did go over these last Friday and these boards are precisely the same form as we all viewed them last Friday, except that we added over the bottom, as I indicated to you, the raw numbers. What these represent are Dr. Gerdes' findings. He will explain, as we've discussed at length, by showing the actual strips and explaining what is meant by an "Artifact," which ones those apply to, and the basis of his finding that there is a contaminant on a run. And these charts are simply without argument listing his findings, just as the boards that the Prosecution put up list their findings, so this is what is in his opinion a scientific fact. That is going to be his testimony and they are free to attack it, so it is simply a record of his findings, his table, which has been turned over to the Prosecution, his raw notes. These are his findings.

THE COURT: All right.

MR. SCHECK: I just so--out of completeness, Mr. Clarke did not mention the other--the other boards which I should put up by the elmo.

THE COURT: Well, if he is not objecting to them, I don't really want to see them.

MR. SCHECK: Okay. I think that--I mean, that basically constitutes--

THE COURT: All right. The issue here is the word "Contamination."

MR. SCHECK: Yes. And the--Dr. Gerdes--

THE COURT: Would you address Mr. Clarke's specific point that Dr. Gerdes doesn't specifically say that or doesn't say that quite to that extent?

MR. SCHECK: Oh. What he is going to do and we are going to explain with specific terms, and that is the reason that we made a distinction between this first board, that is, runs versus strips, and the second board, which is just runs, is he is going to explain what is meant by an "Artifact." That is to say that on the--when you see a 1.1 allele, and we are going to show the strips with the 1.1 allele, and no 1 out of the user guide, that that could be the DX gene as an artifact. Then we are going to explain by the use of breaking them down chart by chart. In other words, we are going to do it by allele.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: This is the 1.1 allele, same presentation by month. These are the strips. This is the underlying data from this chart, (Indicating).

THE COURT: Mr. Scheck, my question was--

MR. SCHECK: Yes.

THE COURT: --Mr. Clarke's statement that Dr. Gerdes will say that it is not--it could be contamination, it could be something else.

MR. SCHECK: Right. That is exactly what this chart is going to represent. He is going to indicate with a breakdown by allele that what this represents--and he is going to give the specific break out of numbers is that on the strips on the strips these percentages represent contamination and artifacts and he will break down the numbers. On the runs he is saying that within that run there is a contaminant. He is going to break down each of these things and explain his findings and he is going to say that when you have a situation where it is ambiguous, that is to say that there is a 1.1 dot showing up in the presence of a 1 and that could be contamination, it could be an artifact in those limited situations, we are going to break it down and explain the underlying constituent of this board to the jury. So it is not argumentative. It is simply showing the percentages in terms of exactly what his testimony is going to be.

THE COURT: All right. Any other response, Mr. Clarke?

MR. CLARKE: No, your Honor. Thank you.

THE COURT: All right. The objection is overruled. All right. Let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: All right. Mr. Scheck, you may call the Defense next witness.

MR. SCHECK: Thank you. Good morning, ladies and gentlemen of the jury.

THE JURY: Good morning.

MR. SCHECK: Your Honor, the Defense calls Dr. John Gerdes.

John Gerdes, called as a witness by the Defendant, was sworn and testified as follows:

THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.

DR. GERDES: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

DR. GERDES: John Gerdes, J-O-H-N G-E-R-D-E-S.

THE CLERK: Thank you.

THE COURT: Doctor, would you just lean back and pull the microphone close to you, please.

DR. GERDES: Thank you.

THE COURT: All right. Mr. Scheck.

DIRECT EXAMINATION BY MR. SCHECK

MR. SCHECK: Dr. Gerdes, could you tell the ladies and gentlemen of the jury what your present position is.

DR. GERDES: I'm the clinical director of a company called Immunological Associates of Denver, IAD for short.

MR. SCHECK: You say you are the clinical director there. Do you hold any other positions?

DR. GERDES: Yes, I actually have three titles; the clinical director, the director of DNA paternity testing and the director of research and development.

MR. SCHECK: And could you tell us what kind of a company IAD is and what it does in the Denver area?

DR. GERDES: Yes. Immunological associates of Denver is a reference laboratory for the purpose of supporting transplantation, organ transplantation. We do the HLA typing which is used to match the organs, solid organs and bone marrow of donors to recipient. We do clinical testing to ensure that those particular donors of organs are free of infectious agents and we do paternity testing for the purpose of legal conflicts.

MR. SCHECK: In your work do you use the technique known as PCR or polymerase chain reaction?

DR. GERDES: I do.

MR. SCHECK: In your work do you use the technique known as RFLP or restriction fragment length polymorphism analysis?

DR. GERDES: Yes, we do.

MR. SCHECK: Now, I would first like to discuss with you your clinical work. You indicated that IAD does transplant work in the Denver area. Incidentally, how many hospitals are there in the Denver area?

DR. GERDES: I'm not sure how many. There are four hospitals that we work specifically with that do transplants.

MR. SCHECK: All right. And so for those four hospitals your lab is the one that does the typing for purposes of the transplantations?

DR. GERDES: That's correct.

MR. SCHECK: First I would like--you mentioned bone marrow transplants. I would like you to explain for us exactly what that is and what your work entails.

DR. GERDES: Well, the major reason an individual would need a bone marrow transplant is if they had cancer, for instance, and leukemia or other kind of cancer. When a person needs a bone marrow transplant it is critical that you have an exact match of the immune system of the donated marrow to the recipient or they will reject the donation. So a registry has been formed by what is called the national marrow donor program and individuals can basically donate a blood specimen which is typed and that HLA type is then recorded. They are put on this list which is the registry and then if an individual has cancer and needs a bone marrow transplant, the registry can be searched to find an exact match.

MR. SCHECK: Let me stop you right there. When you say that--so a donor, somebody would sign up to be part of the bone marrow registry and gives a blood specimen; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: Now, you say that it is typed. Who does that mean and what technique do you use to do it?

DR. GERDES: Well, this is a national program, the national marrow donor program. They contract laboratories that do the typing and it is done by PCR-based DNA methodology.

MR. SCHECK: Are you one of those contract laboratories, that is, IAD?

DR. GERDES: Yes, IAD is one of those laboratories.

MR. SCHECK: And so you do the PCR-based typing to type the donors who are in the registry?

DR. GERDES: The recipient.

MR. SCHECK: The recipient, I'm sorry.

DR. GERDES: Donors in the registry, you are right.

MR. SCHECK: First the donors, right?

DR. GERDES: Correct.

MR. SCHECK: Okay. What happens next?

DR. GERDES: Well, an individual with cancer is--needs a--it is determined that they need a bone marrow transplant and so that particular individual with cancer would be typed again by DNA-pcr based methods.

MR. SCHECK: By your lab?

DR. GERDES: By our lab, in the Denver area, at least. Patients in the Denver area would be typed by our lab and then the registry would be searched to determine if a match could be found and at that point both individuals are retyped to double-check that the--everything was correct and they would proceed with the--the bone marrow transplant.

MR. SCHECK: And your role is to--is to supervise that these three different stages of typing are done correctly and then when you indicate that everything matches, you essentially give the go ahead?

DR. GERDES: That's correct.

MR. SCHECK: And that is--now, what kind of system are you using for this typing? Is that the HLA system?

DR. GERDES: Yes.

MR. SCHECK: Could you explain to the jury what that is?

DR. GERDES: HLA stands for human leukocyte antigen and that particular gene system is the one that is critical for immune recognition.

MR. CLARKE: Excuse me. I'm sorry. Objection, no foundation at this point.

THE COURT: Overruled.

DR. GERDES: And so that is the critical gene that needs to be matched in order to prevent the recipient from rejecting the marrow donor?

MR. SCHECK: Now, we've had a lot of testimony in this case about the DQ-Alpha reverse dot blot system?

DR. GERDES: Yes.

MR. SCHECK: That was used by I guess the three different laboratories in this case; the Los Angeles Police Department, the Department of Justice and Cellmark. Is the DQ-Alpha system in some way related to the HLA system that you use?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: Yes. That particular gene is one of the HLA genes. It is actually a cluster of genes all on chromosome 6. It involves DQ-Alpha, DQ-Beta, DR-Alpha and Beta and DP.

MR. SCHECK: So DQ-Alpha is just one of those systems on HLA?

DR. GERDES: Right, it is a subtype that is in that same cluster.

MR. SCHECK: Okay. Now, besides bone marrow transplants, you mentioned that your laboratory does solid organ transplants?

DR. GERDES: That is--we do the typing for them, yes.

MR. SCHECK: Could you explain for the jury how that works.

DR. GERDES: Umm, the situation in a solid organ transplant is that we don't have as much time, so basically an unfortunate individual may have an accident and then be declared brain dead and at that point we have four to six hours to type that particular individual and then there is again a registry of individuals waiting for solid organ transplants and then we would contact that individual and proceed with the transplant. But you have--the difference is it takes--you have a four- to six-hour window of time in which to basically do two things: One, we need to type by HLA to be sure that we match directly, and the second thing we need to do is we need to screen the donor for dangerous infectious agents. You don't want to obviously give someone an organ from an individual who is infectious, so I would have to screen for such things as HIV which causes aids, hepatitis, HTLV and a variety of infectious agents, that it is important to be sure the donor does not have an infection with those agents so it doesn't transfer.

MR. SCHECK: When you say "Solid organs," what organs are we talking about here?

DR. GERDES: We are talking about kidney, heart, lung, pancreas, liver.

MR. SCHECK: So in other words, like I guess Mickey Mantle, the sports star recently had a transplant?

DR. GERDES: That's correct.

MR. SCHECK: But in the Texas area?

DR. GERDES: That's right.

MR. SCHECK: But your--your role is if it happened in Denver, your laboratory would have done all the typing and looking at the registries?

DR. GERDES: That's correct.

MR. CLARKE: Excuse me. Objection, speculation, also leading.

THE COURT: Overruled.

MR. SCHECK: Now, you were talking about typing for these infectious diseases that the donor might have, such as HIV, HTLV, hepatitis b and C. Are you yet using PCR techniques for that aspect of the solid organ transplant typing process?

DR. GERDES: No.

MR. SCHECK: What work are you doing in that area?

DR. GERDES: Well, as my--one of my functions, as the director of research and development, we are attempting to validate PCR-based methods to look for those infectious agents. At the present time we use what are called serological methods which look for the antibody and that simply says that an individual has been previously exposed and therefore might be infectious. If those types of assays are available, they are--

MR. SCHECK: What do you mean by "Assay" when you--

DR. GERDES: An assay is a test.

MR. SCHECK: Okay.

DR. GERDES: A method.

MR. SCHECK: Uh-huh.

DR. GERDES: Those--those--those are FDA-approved and available. What we would like to do, though, is look directly for the infectious agent, that is certainly the better way to do it, and PCR is an exquisitely sensitive method and therefore has the potential of looking directly for the infectious agent. The difficulty is basically two-fold: No. 1, the time frame that we have, the five to six hours, most of the highly sensitive PCR methods take a little longer than that, usually overnight. We need to develop a system that has the ability to detect very small amounts of virus in a very short period of time.

MR. SCHECK: Let me stop you right there. You say "Very small amount of virus." Is a virus a string of DNA?

DR. GERDES: A virus is essentially DNA that is wrapped up in a protein coat.

MR. SCHECK: When you say "Small," we have had a lot of testimony here about nanograms and then a smaller unit of that, picograms. What levels are you talking about here?

DR. GERDES: The picogram or lower.

MR. SCHECK: Could you just define for the jury the difference between a picogram and a nanogram of DNA?

DR. GERDES: Well, there are a thousand picograms in a nanogram.

MR. SCHECK: Okay. So you are looking at very small amounts of DNA for these different infectious viruses in trying to develop a PCR technique that can deal with it; is that correct?

DR. GERDES: That's correct. So the first problem is being able to detect the very small amount. The second problem is being able to ensure that that can be done reliably and that is so that you don't have what are called false positives or false negatives. A false negative would mean that an individual might have a small amount of virus and for whatever reason we missed it, and that would be disastrous, because then the organ would be transplanted and someone would unfortunately come down with infection. The false positive would be a situation where because the technique is so sensitive, sometimes DNA from the laboratory or DNA from wherever, from previous amplifications, for instance, in the lab, might get into the tubes that we are using to test the donor.

THE COURT: I think we are exceeding the scope with this question.

MR. SCHECK: Is--simple question.

DR. GERDES: Okay.

MR. SCHECK: Is contamination an issue that you are trying to deal with in developing this particular PCR technique?

DR. GERDES: It is.

MR. SCHECK: Let's move on to the next thing that your lab does. You mentioned after the transplants are performed does your laboratory do something with respect to infectious disease screening?

DR. GERDES: We do.

MR. SCHECK: And what is that that you do?

DR. GERDES: Well, once a patient has been--has received a transplant, and it is either solid organ or bone marrow, they have to undergo what is called immunosuppression in order for us to prevent rejection. And so these individuals, their immune response is not quite as good as a normal individual and they therefore have an increased susceptibility to infectious agents. So there are certain infections that a normal individual or an individual who hasn't been immunosuppressed would not be susceptible to, wouldn't cause a problem in any way, but in these individuals it can kill them. And the primary example of that is something called cytomegalovirus.

MR. SCHECK: CMV?

DR. GERDES: CMV for short and this particular infection, all of us at least eighty percent of us, have seen this infection sometime early in life and it is not a problem until you receive a transplant and at that point it can become an active infection again, cause pneumonia and kill the patient, so it is a very, very difficult virus to deal with. It is also a difficult virus to grow. It takes six weeks to grow it in a laboratory, so that is not going to be helpful. PCR is the best way to look for it.

MR. SCHECK: Have you developed a PCR technique to detect the cytomegalo--CMV virus?

DR. GERDES: Yes.

MR. SCHECK: And did you receive a grant to do that?

DR. GERDES: I did.

MR. SCHECK: And when did you receive that grant?

DR. GERDES: I believe it was in 1990. Correct me if I am wrong.

MR. SCHECK: And what did that grant entail? Who did you study?

DR. GERDES: We studied 48 renal transplant, that is, kidney transplant patients, and looked at them in a way that we could validate a PCR-based method for the purpose of diagnosing early detection of the CMV virus.

MR. SCHECK: Is that PCR technique working with very small quantities of DNA?

DR. GERDES: It is.

MR. SCHECK: Is that PCR--is contamination a problem in the development of this technique?

DR. GERDES: Contamination is a problem in the development of any PCR technique.

MR. SCHECK: Now, you indicated that you were working--you were head of research and development at IAD; is that correct?

DR. GERDES: Correct.

MR. SCHECK: All right. Have you--I suppose part of that research and development was your work in developing this technique, this PCR technique to detect the CMV virus?

DR. GERDES: That's correct.

MR. SCHECK: All right. Have you recently received any other grants relating to the PCR technique and the issue of contamination that would be relevant to share with the jury?

DR. GERDES: Yes, I have.

MR. SCHECK: Could you tell was that is?

DR. GERDES: Well, just this last month I received a grant from the advanced technology program, which is a division of the National Institute of Standards and Technology, and the purpose of that grant is to develop a new diagnostic technique that is going to be more cost effective and less complex and allow for a better way to prevent contamination.

MR. SCHECK: Was this--what is the National Institute of Standards and Testing or NIST?

DR. GERDES: National Institute of Standards and Technology.

MR. SCHECK: Technology. What is it?

DR. GERDES: It is a department--and I'm not sure what major department it is under--of the U.S. government and they are charged with the purpose of developing technology that will be important to the U.S. in the future in terms of keeping the U.S. at the forefront of technologies and maintaining the U.S. as a competitive country.

MR. SCHECK: Was this a competitive grant?

DR. GERDES: It was.

MR. SCHECK: How many companies applied for this, do you know?

DR. GERDES: This was a focus program specifically asking for grants on DNA. I believe there were 27 applicants.

MR. SCHECK: What was the amount of the grant that you just received?

DR. GERDES: 1.6 million dollars.

MR. SCHECK: You also indicated that your laboratory does paternity testing?

DR. GERDES: Yes.

MR. SCHECK: All right. And could you tell us what technique you use and what is involved in that?

DR. GERDES: Yes. In paternity testing we use the other type of DNA testing which is called RFLP which I believe you've all heard of, restriction fragment length polymorphism, and that technology then is used for our purpose of determining whether a child--whether an individual is the father of a child.

MR. SCHECK: Now, in the paternity testing area, do you have to deal with--do you have guidelines with respect to handling of specimens and chain of custody issues such as that?

DR. GERDES: Yes, we do.

MR. SCHECK: Finally, does your lab do any work in what is known as virology?

DR. GERDES: Yes, we do.

MR. SCHECK: Does any of that involve PCR?

DR. GERDES: The CMV is a virus only so that involves PCR. We also look for another organism called chylmadia. It is actually not a virus but it is a microorganism that causes sexually transmitted diseases. And our function as a virology lab is to look at infections, not restricted only to infections in transplant population, but in the O.R. population or other populations as well, wherever they would need it and, that is one of the particular organisms where we use PCR.

MR. SCHECK: And is there a particular kit that is used with that PCR application?

DR. GERDES: Yes.

MR. SCHECK: And who approved that kit?

DR. GERDES: Well, it is a FDA-approved kit.

MR. SCHECK: What is the FDA?

DR. GERDES: The food and drug administration, and for clinical testing, if you use a kit, it has to be approved by that organization, and basically what that--

MR. SCHECK: Excuse me for one second. A kit--is the PCR/dq-alpha technique being used here, is that a kit as well?

DR. GERDES: It is.

MR. SCHECK: Now, does the kit that you use for chlymadia, does that have a contamination control?

DR. GERDES: It does.

MR. SCHECK: Called UNG?

DR. GERDES: Yes.

MR. SCHECK: And does the DQ-Alpha system have the UNG?

DR. GERDES: No.

MR. SCHECK: Now, doctor, I would like to talk a little bit about your educational background. Where did you get your undergraduate degree?

DR. GERDES: I received a bachelor of science in microbiology from the University of Wyoming, Laramie, Wyoming.

MR. SCHECK: Where did you get your postdoctorate degree?

DR. GERDES: I received my Ph.D. degree from UCLA in Los Angeles in the field of microbial genetics and pathogenesis and microbial genetics is what is now called microbiology.

MR. SCHECK: How many years did it take you to get your Ph.D., sir?

DR. GERDES: Four years.

MR. SCHECK: And in microbiology, your background, what is the importance of something known as aseptic technique and could you explain what that is to the jury?

DR. GERDES: Well, aseptic technique or sterile technique is the foundation of microbiology really. It is a--basically teaching you the common sense of how to handle an item, a specimen, in such a way that you can look at what is only in the specimen and not worry about other microorganisms that are floating around the air falling in there and confusing what you are looking at.

MR. SCHECK: Are you talking about the issue here of cross-contamination and contamination?

DR. GERDES: Yes. In microbiology you have to handle specimens--for instance, if you are--if a doctor takes a specimen from you, it is very important that that specimen is transported to the lab, handled by the laboratory personnel, analyzed by the laboratory personnel and that a result is obtained from those personnel in such a way that I can guarantee, no. 1, the specimen really did come from you. And no. 2, that there wasn't some sort of mix-up of all the other specimens that came into the lab that day, which is pretty much saying the same thing. And no. 3, that there isn't a problem with the fact that we are dealing with those microorganisms day after day in the labs, some of those from the laboratory getting into your specimen and causing a false positive result.

MR. SCHECK: Your thesis involved what microorganism?

DR. GERDES: I looked at fibrio cholera which is the organism that causes cholera, which is an acute diarrheal disease which is a major problem worldwide.

MR. SCHECK: What was your postdoctoral work in? Where did you do that?

DR. GERDES: My postdoctoral work was at again UCLA and this time in the field of virology and I investigated the genetics and the molecular biology of herpes simplex virus and specifically asking questions about what it is about that virus that allows it to, once it is into the body, go into what is called a latent stage, which means that it--the infection is shut down but the virus persists.

MR. SCHECK: When you say "Herpes simplex," that is what is commonly known as herpes?

DR. GERDES: Yes. It causes cold sores and it also causes a genital infection.

MR. SCHECK: And with whom did you study at UCLA in your post-doctoral work?

DR. GERDES: Jack Stephens was the individual's name.

MR. SCHECK: When you say--did you get any kind of a grant at that time?

DR. GERDES: Yes. The support for my post-doc was a competitive postdoctoral fellowship from the NIH.

MR. SCHECK: The NIH is?

DR. GERDES: National institute of health.

MR. SCHECK: So you have to compete to get that grant in order to support your postgraduate work?

DR. GERDES: That's correct.

MR. SCHECK: After that did you at some point--when did you move to Denver?

DR. GERDES: Umm, I'm not very good with dates. I believe it must have been around 1978 or in that area.

MR. SCHECK: Through 1978 around--up there, 1982, where did you work?

DR. GERDES: I was an assistant professor at the University of Colorado health sciences center which is a medical school in Denver, Colorado.

MR. SCHECK: And what were you working on there?

DR. GERDES: I was again--I had two laboratories. One of the laboratories continued my work with herpes simplex virus and I was also--the second laboratory involved the investigation of the potential of viruses being the cause of multiple sclerosis.

MR. SCHECK: And when did you go to immunological associates of Denver?

DR. GERDES: That was in 1988.

MR. SCHECK: And at that time you began to set up the various programs in that laboratory?

DR. GERDES: That's correct.

MR. SCHECK: Now, I would like to turn for a second back to your work at IAD and discuss with you some laboratory practices and accrediting and how it works in this field. Are there accrediting agencies that set standards for your DNA laboratory?

DR. GERDES: Yes.

MR. SCHECK: All right. What--could we go through them. Is one of them what is known as CLIA?

DR. GERDES: Yes.

MR. SCHECK: Could you explain for the jury what that is?

DR. GERDES: Well, CLIA is actually the law. Clinical laboratory improvement act is the--that is what the abbreviation stands for. That is a law that was passed to regulate and improve clinical testing in this country. It is administered by the health care financing administration or HCVA, and we are inspected by that organization to ensure that we are complying with the law.

MR. SCHECK: And you are accredited, by the way?

DR. GERDES: And we are--HCVA would be the accrediting agency.

MR. SCHECK: Now, in the course of that is your lab inspected?

DR. GERDES: Yes.

MR. SCHECK: Do they look at your protocol?

DR. GERDES: They do.

MR. SCHECK: Do they look at your quality control and quality assurance documentation?

DR. GERDES: They do.

MR. SCHECK: Do they do spot checks of your case work?

DR. GERDES: No.

MR. SCHECK: Do they look at your proficiency tests?

DR. GERDES: They do.

MR. SCHECK: Do they look to see, in the course of their examination of your quality control and quality assurance, whether there is--your laboratory adequately detects and controls contamination in your PCR work?

DR. GERDES: They do.

MR. SCHECK: Do they inspect your rules for specimen handling?

DR. GERDES: Yes.

MR. SCHECK: Is there another organization that accredits you called the American Society for Histocompatibility and Immunogenetics?

DR. GERDES: Yes.

MR. SCHECK: And what is that--that is known as ASHI?

DR. GERDES: Correct.

MR. SCHECK: What is their field? What do they look at?

DR. GERDES: This is the accrediting agency for the purpose of HLA typing.

MR. SCHECK: That is the bone marrow and solid organ transplants?

DR. GERDES: Bone marrow and solid organ transplant.

THE COURT: Hold on. Doctor, if you would, would you let the attorney finish asking you the question before you start to answer. The problem is the court reporter can only take down one person at a time. This is touch stuff for a court reporter.

DR. GERDES: I understand, I'm sorry.

THE COURT: Proceed.

MR. SCHECK: Does ASHI inspect your lab?

DR. GERDES: No.

MR. SCHECK: Do they look through your quality control and quality assurance records?

DR. GERDES: No.

MR. SCHECK: Do they do spot checks of your case work?

DR. GERDES: Yes.

MR. SCHECK: Do they examine proficiency tests?

DR. GERDES: Yes.

MR. SCHECK: In the course of the examination of the quality control and quality assurance documents and the case work, do they make an assessment as to whether or not your laboratory adequately detects and controls contamination?

DR. GERDES: Yes.

MR. SCHECK: Do they examine your specimen handling rules and methods?

DR. GERDES: They do.

MR. SCHECK: What about the national marrow donor program? What do they do?

DR. GERDES: That is the organization that is the registry for bone marrow.

MR. SCHECK: And they rely on ASHI inspections?

DR. GERDES: They rely on ASHI for the accreditation process. Their additional quality control includes blind specimens that are incorporated in every batch of typings we do.

MR. SCHECK: Well, we will get back to this later, but is that what has been discussed here as an external blind proficiency test?

DR. GERDES: It is.

MR. SCHECK: All right. We will discuss that later. Now, what about the American Association of Blood Banks? Is that an accrediting agency that looks at your laboratory?

DR. GERDES: It is.

MR. SCHECK: And in what area do they look at?

DR. GERDES: That is in the area of paternity testing by RFLP.

MR. SCHECK: Do they inspect your lab?

DR. GERDES: They do.

MR. SCHECK: Do they look at your quality control and quality assurance documentation?

DR. GERDES: Yes.

MR. SCHECK: Do they do spot checks of your case work?

DR. GERDES: Yes.

MR. SCHECK: Do they review AABB and what is known as CAP or College of American Pathology proficiency testing?

DR. GERDES: Yes.

MR. SCHECK: Do they examine chain of custody rules and specimen handling rules with respect to paternity testing?

DR. GERDES: They do.

THE COURT: Mr. Scheck, would you slow down just a little.

MR. SCHECK: My apologies, your Honor.

MR. SCHECK: In addition to these inspections, what kind of proficiency testing does your lab go through? Just describe the programs. You mentioned already, and we will get back to it later, the national marrow donor program external blinds?

DR. GERDES: That's correct.

MR. SCHECK: All right. What other proficiency testing do you go through?

DR. GERDES: Umm, in the--there is proficiency for virtually every area that we do through the College of American Pathologists or CAP. That is a main--a major organization. That is one of their major functions is providing that kind of proficiency testing. In addition, we have proficiency testing through a number of HLA organizations, specifically for DNA HLA. One of them is called a DNA--the UCLA DNA exchange and a second one is the southeast organ procurement foundation or c-op proficiency testing.

MR. SCHECK: Now, doctor, are you a member of any professional associations?

DR. GERDES: I am.

MR. SCHECK: All right. Could you please tell us what they are.

DR. GERDES: I'm a member of the American Society for Microbiology. I'm a member of the Clinical Ligand Assay Society.

MR. SCHECK: Before we--the American Society of Microbiology, what is that exactly?

DR. GERDES: That is the major scientific organization for the purpose of microbiology and molecular microbiology or molecular pathology.

MR. SCHECK: They hold meetings and conferences that you attend?

DR. GERDES: Yes.

MR. SCHECK: And in those meetings and conferences is a discussion of DNA laboratory techniques?

DR. GERDES: Yes.

MR. SCHECK: All right. Is another professional--go on to your next professional organization.

DR. GERDES: Clinical Ligand Assay Society is one I believe I mentioned.

MR. SCHECK: And what do they do?

DR. GERDES: This is an organization, a scientific organization which is a collection of individuals who are involved in clinical chemistry and clinical testing.

MR. SCHECK: Does that organization hold meetings that you attend?

DR. GERDES: Yes.

MR. SCHECK: And at those meetings do various DNA laboratory directors discuss techniques and laboratory methods?

DR. GERDES: They do.

MR. SCHECK: What other organizations?

DR. GERDES: The American Association of Blood Banks.

MR. SCHECK: All right. Do you attend their meetings?

DR. GERDES: Yes.

MR. SCHECK: And what--and they--at those meetings do DNA laboratory directors there discuss various techniques?

DR. GERDES: Yes.

MR. SCHECK: That are used in their laboratories?

DR. GERDES: Yes.

MR. SCHECK: And standards and rules, things of that nature?

DR. GERDES: Yes.

MR. SCHECK: What about ASHI, American Society for Histocompatibility and Immunogenetics?

DR. GERDES: Yes, yes, I belong to that.

MR. SCHECK: And what is that organization again?

DR. GERDES: That is the organization that deals with the immunology of looking at the HLA gene.

MR. SCHECK: The transplant--

DR. GERDES: Immunology in general and the HLA specifically in the sense of transplantation.

MR. SCHECK: All right. So these are the transplant people, so to speak?

DR. GERDES: Yes.

MR. SCHECK: And when you get together at those meetings are there discussions of DNA lab directors there as to techniques and standards in the laboratory?

DR. GERDES: Yes.

MR. SCHECK: And what is the Pan American Society for Clinical Virology? That is another organization you are a member of?

DR. GERDES: It is.

MR. SCHECK: What do they do?

DR. GERDES: That is the scientific organization which is a collection of individuals who do virology, looking for viruses in a clinical setting.

MR. SCHECK: Again at those meetings do DNA lab directors who do the PCR-based tests for looking for these infectious diseases that you told us about, such as hepatitis, HIV, et cetera, do they discuss DNA laboratory techniques, standards, specimen handling method?

DR. GERDES: Yes, they do.

MR. SCHECK: Okay. Now, I would like to turn your attention now to forensic DNA typing. Have you visited and inspected any forensic DNA laboratories?

DR. GERDES: Yes.

MR. SCHECK: Which ones have you inspected and visited?

DR. GERDES: Well, there are sixteen of them. Hopefully I can remember the list.

MR. SCHECK: I'm talking first now about visits, labs that you visit.

DR. GERDES: Oh, visits. Sorry. There are six labs that I visited; Cellmark--

MR. SCHECK: That is Cellmark Diagnostics, the laboratory that Cotton is from?

DR. GERDES: That's correct. I visited the Los Angeles Police Department DNA lab, I've visited the Department of Justice in Berkeley.

MR. SCHECK: That is the lab that Gary Sims and Renee Montgomery are from?

DR. GERDES: Correct. I visited the New Mexico crime lab, I visited the Denver Police Department, and I visited the Bureau of Criminal Apprehension in Minneapolis.

MR. SCHECK: Have you visited the laboratory known as Genetic Design?

DR. GERDES: Yes, I have also visited that in North Carolina.

MR. SCHECK: Now, have you reviewed protocols and case work from additional DNA laboratories?

DR. GERDES: I have.

MR. SCHECK: And how many DNA laboratories overall have you reviewed protocol and examined case work?

DR. GERDES: Sixteen.

MR. SCHECK: All right. And in addition to Cellmark, the Los Angeles Police Department, the Department of Justice, the New Mexico Police Department, the Denver Police Department, Genetic Design and the Bureau of Criminal Apprehension in Minneapolis, what other labs have you reviewed their protocols in case work?

DR. GERDES: You will have to help me on the list. The FBI, San Diego Police Department, Forensic Science Associates, and if I could look at my CV it might be--

MR. SCHECK: Well, if you don't mind have you visited gene screen?

DR. GERDES: Yes. I haven't visited; I have reviewed their protocol. They are from Texas, that's correct.

MR. SCHECK: What about the Orange County crime lab?

DR. GERDES: Yes.

MR. SCHECK: What is--what is the CBR laboratory?

DR. GERDES: That is a laboratory in Maryland, David Bing's laboratory.

MR. SCHECK: Boston?

DR. GERDES: Yes.

MR. SCHECK: And what is AGTC, analytical genetic--

DR. GERDES: Analytical Genetic Testing Center which is in Denver Colorado.

MR. SCHECK: So you reviewed protocol and case work from that lab?

DR. GERDES: Yes.

MR. SCHECK: Are you--have you become familiar with the literature on the application of DNA techniques to forensic?

DR. GERDES: Yes.

MR. SCHECK: Over the last five years have you testified as an expert witness in a number of states on the application of DNA techniques to forensics?

DR. GERDES: I have.

MR. SCHECK: And over five years about how many times have you testified?

DR. GERDES: 23 times.

MR. SCHECK: Now, how did you get involved in testifying in cases involving the forensic application of DNA techniques?

DR. GERDES: Well, back in 1990 there was a case in the Denver area and as a part of--there was DNA involved in the evidence of the case and the--one of the attorneys involved in the case, I think he essentially looked us up in the yellow pages and it said that we did DNA testing and called me and asked me to look at the evidence and I--I agreed to do that and looked at that particular case. I expressed some concerns about specifically some problems that I felt there might be with PCR and then from there on individuals have called me.

MR. SCHECK: Now, do you, over the course of time, do you charge money when you review case work and come and testify as a witness?

DR. GERDES: I do.

MR. SCHECK: And have you charged a fee in this case?

DR. GERDES: I have.

MR. SCHECK: And what is that fee?

DR. GERDES: It is a hundred dollars an hour.

MR. SCHECK: And who gets the money, this $100.00 an hour?

DR. GERDES: The laboratory does.

MR. SCHECK: That is IAD?

DR. GERDES: Yes.

MR. SCHECK: And is this a money-making enterprise for IAD, you going off and testifying as an expert witness in forensic cases over the last five years?

DR. GERDES: No. It is a minor proportion of the gross income of our company and it basically covers the expenses of my being gone for someone to replace me.

MR. SCHECK: Now, in terms of preparing for your testimony in this case, did you review the results of the DNA work of the Los Angeles Police Department?

DR. GERDES: I did.

MR. SCHECK: The Department of Justice?

DR. GERDES: Yes.

MR. SCHECK: And Cellmark?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed their protocols?

DR. GERDES: I have.

MR. SCHECK: Have you reviewed the collection methods, the sample handling methods and the laboratory procedures of the Los Angeles Police Department?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed what are known as validation studies put together by the Los Angeles Police Department laboratory?

DR. GERDES: I have.

MR. SCHECK: Have you looked at some of their case work strips?

DR. GERDES: Yes.

MR. SCHECK: And their proficiency tests?

DR. GERDES: Yes.

MR. SCHECK: I think you have already mentioned you visited the Los Angeles Police Department?

DR. GERDES: That's correct.

MR. SCHECK: On how many occasions?

DR. GERDES: Two occasions.

MR. SCHECK: And visited Cellmark in connection with this case?

DR. GERDES: I did.

MR. SCHECK: And when you said you visited the Department of Justice, that was in connection with another case?

DR. GERDES: I visited that laboratory twice. Once in conjunction with another case and once in conjunction with this case.

MR. SCHECK: Now, have you--are you familiar with the testimony of Dennis Fung, Andrea Mazzola, Collin Yamauchi, Gary Sims, Renee Montgomery, Robin Cotton in this case?

DR. GERDES: Yes.

MR. SCHECK: Have you--in what way have you been familiar with it?

DR. GERDES: Well, I have seen the excerpts here and there on TV, but primarily through transcripts which were provided, and I have reviewed most of those transcripts, although it was impossible to review all of it, I didn't have time, but most of it I have reviewed.

MR. SCHECK: Now, could you please define for the jury the term "Contamination" in a forensic setting, in terms of DNA work?

DR. GERDES: In terms of DNA work it is quite simply human DNA that is found where it shouldn't be.

MR. SCHECK: Now, in terms of DNA laboratories, would it be useful to break down the kind of contamination that one encounters?

DR. GERDES: Yes.

MR. SCHECK: And could you please tell us--could you break those down to us in certain categories?

DR. GERDES: Certainly. I think a way to look at this is to start all the way back at the beginning at the crime scene and the first type of risk of contamination is going to be called what is called cross-contamination, and as I mentioned, this is human DNA finding its way into a sample where it shouldn't be there, and the--that is as a result of cross-transferring from one space to another physically, and that can happen by mishandling. And the--that is because if you have a sample here with a large amount of DNA and another sample with small amount of DNA, this technique is so exquisitely sensitive that you can transfer without even knowing it frequently a small amount of DNA from item 1 where there was a large amount to item 2.

MR. SCHECK: When you say "Exquisitely sensitive," we have heard that term before. What do you mean by that? It is a scientific term?

DR. GERDES: Yes.

MR. SCHECK: But could you try to define that a little in plainer English, if we could?

DR. GERDES: Yeah. It simply means that you can find a very, very, very small amount. This technique can theoretically find a single copy of what you are looking for.

MR. SCHECK: Okay. Now, we discussed cross-contamination. Is there something about cross-contamination that is a particular problem in terms of the different kinds contamination you get?

DR. GERDES: Yes. This--this particular kind of contamination is the one that is the most subversive and that--by that I mean that once you've done that, once you have accidentally transferred from one item to the next, if you were to do the DNA analysis of both items, the DNA analysis doesn't distinguish where that human DNA came from. It is simply going to type what human DNA is there. So that means that if you were to type those two items and you had accidentally done that, those items were--would probably type as the same item, especially, you know, the smaller amount would be most likely overwhelmed by the transferred DNA. So they would type as the same DNA, meaning coming from the same individual, and it wouldn't matter if at that point from that point on it wouldn't matter if this sample that was falsely incorporated--falsely incorporated, if that sample was typed by five, ten, other laboratories or by five or ten different gene systems, it is always going to come up as a match. And the problem with that is there really is no control, unfortunately. There is no way of incorporating into the system a control that says that happened.

THE COURT: Next question.

MR. SCHECK: What other kind of categories of contamination are there?

DR. GERDES: Well, the second is usually once the DNA or the specimen is transferred to a laboratory, now you can have the same kind of transfer, by the way, cross-transfer can happen anytime that item is manipulated, either in the crime scene, in the laboratory itself, or anytime they are handled, those specimens, all the way through the process that can happen. A second type of contamination, though, that occurs, is the fact that when you are dealing with DNA the samples are fairly dirty samples. In the process of analyzing them you have to add these liquid solutions that contain all of the building blocks for the DNA and the enzyme that is responsible for allowing us to copy it, and the components of that reaction that allows the PCR process to occur.

MR. SCHECK: These are the reagents that you pour into things?

DR. GERDES: Correct, they are called reagents.

MR. SCHECK: Can they get contaminated?

DR. GERDES: Yes, they can.

MR. SCHECK: And what is known as amplicon or PCR carry-over contamination?

DR. GERDES: That is a slightly different concept, and the PCR process I'm sure you are aware of that now, basically allows us to take a small number and copy it, sort of like a molecular Xeroxing up to a very high number. Now, if you do that for the same gene over and over, day after day, with multiple samples, what happens is you have a build-up or can have a build-up of the copies, and when you have a build-up of those copies it is very easy to accidentally get one of those into your reagent or into your reactions, and that is called amplification product carry-over.

MR. SCHECK: Okay. Dr. Gerdes, based on your review of the data in this case, have you formed an opinion as to a reasonable degree of scientific certainty about contamination at the LAPD DNA laboratory?

MR. CLARKE: Objection, no foundation.

MR. SCHECK: Your Honor, my method here is that I'm going to elicit the opinions of the doctor and then give the basis of his expert opinion.

THE COURT: Overruled, overruled.

MR. SCHECK: Have you an opinion, within a degree of scientific certainly, about contamination at the LAPD laboratory?

DR. GERDES: Yes.

MR. SCHECK: What is it?

DR. GERDES: I found that the LAPD laboratory has substantial contamination problem that is persistent and substantial.

MR. SCHECK: Is it chronic? What does that term mean?

DR. GERDES: Chronic--it is chronic and it is chronic in the sense that it doesn't go away. I can find it month after month and it persists.

MR. SCHECK: Is--as a DNA lab director do you have an opinion about the risk of error due to contamination at the LAPD?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: As a molecular biologist and DNA laboratory director, do you have an opinion about the collection, specimen handling and sampling method used by the personnel at the Los Angeles Police Department in this case?

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: Yes.

MR. SCHECK: And what is it?

DR. GERDES: I found that the specimen handling procedures were done in such a manner that it had a tremendous--there was a tremendous risk of the potential of cross-contamination.

MR. SCHECK: Given your views on contamination at LAPD and the sample handling methods that the personnel used, do you have an opinion about the reliability of the results obtained not only by the Los Angeles Police Department, but by the Department of Justice and Cellmark on the samples that have been called the Bundy blood drops, that is, LAPD items 47, 48, 49, 50 and 52?

MR. CLARKE: Objection, no foundation, also irrelevant.

THE COURT: Sustained. Sustained.

MR. SCHECK: Your Honor, I--I wanted to elicit his opinion and then give the basis.

THE COURT: Sustained. Sustained.

MR. SCHECK: All right.

MR. SCHECK: Dr. Gerdes, have you examined and formed an opinion about the handling of the samples from the Bronco that were collected on June 14th and August 26th in this case?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Let me go back and try it this way: Dr. Gerdes, have you examined the data and the testimony about how the Bundy blood drops, items 47, 48, 49, 50 and 52, were handled in this case?

DR. GERDES: Yes.

MR. SCHECK: Have you examined--based on your examination of how those items were handled and your review of the conditions at the L.A. Police Department laboratory, do you have an opinion about the reliability of the results obtained not only by the Los Angeles Police Department, but by the Department of Justice and Cellmark on those items?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Have you reviewed, Dr. Gerdes, the D1S80 results obtained on the Rockingham glove by the Department of Justice?

DR. GERDES: Yes.

MR. SCHECK: All right. And have you reviewed the way that that Rockingham glove was handled and sampled by Mr. Yamauchi on the morning of June 14th, 1994?

DR. GERDES: Yes.

MR. SCHECK: All right. Before we move on to a discussion of those results, I would like to ask you a series of questions, sir, with the use of a chart, concerning the use of PCR and RFLP technique in the forensic setting and in the medical setting. Your Honor, if I may, I would like to move the chart out here.

THE COURT: Yes.

(Brief pause.)

MR. SCHECK: Your Honor, I would like to mark this chart as Defense next in order, which I believe is what, 1284?

THE COURT: 1285.

(Deft's 1285 for id = chart)

MR. SCHECK: Dr. Gerdes, if you could step down?

DR. GERDES: (Witness complies.)

MR. SCHECK: Now, can DNA technology, that is the RFLP and PCR technique, be reliable and validated for one application but less reliable when transferred to another application?

MR. CLARKE: Objection, foundation. Request to take the witness on voir dire.

THE COURT: Overruled.

DR. GERDES: Yes. That is called technological transfer and any specific or way of doing things, when it is used for a different purpose, for various different purposes, each of those will have their own unique problems and so you have to deal with those problems during that transfer.

MR. SCHECK: Where did the RFLP and PCR technique start? Where were they first developed? In the research setting, the medical setting?

DR. GERDES: They were--the PCR methodology was developed in a research setting, specifically in the field of molecular biology.

MR. SCHECK: What about RFLP?

DR. GERDES: RFLP was developed in a similar setting.

MR. SCHECK: And what was the first application of these techniques? Was it medical or forensics?

DR. GERDES: Well, it began in the research community and then the medical community was the next area where it was applied and then finally forensics.

MR. SCHECK: All right. What I would like to do is go through some of the differences between medical and research applications of these techniques and forensics. First, on the issue of samples, what are the differences as you see them between samples in the medical setting and samples in the forensic setting?

MR. CLARKE: Excuse me. Again, objection, foundation, expertise.

THE COURT: Sustained.

MR. SCHECK: Well, Dr. Gerdes, do you have familiarity with the kind of samples that are handled in the clinical setting?

DR. GERDES: I do.

MR. SCHECK: And do you have familiarity with the kind of samples that are handled in the forensic case work?

DR. GERDES: Yes.

MR. SCHECK: What kind of samples are handled in the medical or research community? Could you describe what they are?

DR. GERDES: These are aseptically collected sterile samples that are collected from a patient by a trained microbiologist or medical personnel, transported to the laboratory in a sterile container and then handled in a sterile environment, a hood that is a sterile hood.

MR. SCHECK: And in forensics how are, generally speaking, samples what kind of samples are you dealing with?

MR. CLARKE: Objection, no foundation. Also, request to voir dire the witness.

THE COURT: Objection sustained on foundation.

MR. SCHECK: Dr. Gerdes, have you reviewed--how many forensic cases have you reviewed?

DR. GERDES: 23.

MR. SCHECK: And have you reviewed the kind of samples that were collected in those cases and where they came from?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. GERDES: Yes, I have.

MR. SCHECK: And where did those samples come from? What kind of cases did they involve?

DR. GERDES: They involved various crime scenes. All of them involved, you know, blood, hair, semen found in--in an unsterile condition on carpets, in dirt.

MR. CLARKE: I'm sorry, excuse me. Objection, no foundation. Objection, no foundation, move to strike the answer.

THE COURT: I'm going to sustain the objection. No foundation at this point. It is based on hearsay at this point.

MR. CLARKE: Move to strike the answer, your Honor.

THE COURT: Not at this time.

MR. SCHECK: Well, have you reviewed literature with respect to forensic samples and their properties and how they are collected?

DR. GERDES: Yes.

MR. SCHECK: Literature from forensic laboratories?

DR. GERDES: Yes.

MR. SCHECK: And have you seen photographs and examined actual samples from forensic laboratories in the various cases that you have reviewed?

DR. GERDES: I have seen photographs. I haven't handled the samples.

MR. SCHECK: All right. In the cases you have reviewed, have you dealt with bloodstains?

DR. GERDES: Yes.

MR. SCHECK: From--found on various different substrates?

DR. GERDES: Yes.

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Overruled.

MR. SCHECK: From concrete and dirt?

DR. GERDES: Yes.

MR. SCHECK: Have you dealt with hairs found on clothing and on various substrates?

DR. GERDES: Yes.

MR. SCHECK: Have you dealt with what are known as vaginal swabs?

DR. GERDES: Yes.

MR. SCHECK: Sperm and epithelial cells?

DR. GERDES: Yes.

MR. SCHECK: Saliva?

DR. GERDES: Yes.

MR. SCHECK: Have you dealt with mixtures of blood--bloodstains?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed cases involving mixtures of epithelial and sperm cells, for example?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of--these are all in forensic cases?

DR. GERDES: They are.

MR. SCHECK: Now, in terms of the samples that you have reviewed in forensic cases, what are the differences between those kind of samples and the samples that you have encountered in the medical and research setting?

MR. CLARKE: Objection, no foundation, expertise.

THE COURT: Overruled.

DR. GERDES: I believe you have just described the differences. Those samples are found in various substrates, none of which are sterile, obviously sterile blood specimens, and in various stages of degradation and different ages and they are obviously not clean samples. They are samples that are definitely dirty and definitely not collected in an ideal manner.

MR. SCHECK: All right. Now, in terms of just the application of the technology and the challenge posed by the samples, which kind of samples, just by their nature, umm, create a higher risk of encountering contamination and erroneous DNA typing; the samples in the medical and research setting or the samples that you've viewed in forensic case work?

DR. GERDES: Well, obviously if you have a sterile sample that is aeseptically collected, versus a sample where there is absolutely no way of controlling how it is collected or where it is found, the chances of foreign DNA from someone else are going to be much greater in this situation than in this situation, (Indicating).

MR. SCHECK: All right. So would it be fair to say that in terms of risk of contamination error, at least just in terms of the sample, forensics is a greater challenge?

DR. GERDES: It is.

MR. SCHECK: Would it be fair for you then to--if there were a box here, would you check that off with respect to dirty samples?

DR. GERDES: Stuck on permanent.

MR. SCHECK: It is stuck on permanently?

DR. GERDES: Whoops. That one isn't.

MR. SCHECK: Sorry to reveal the next check mark here. In terms of sample size, what are the differences between the samples that you encounter in the medical--in the medical area, the clinical area, and the samples that you've viewed in forensic case work?

DR. GERDES: In the medical area we can pretty much request the sample volume that we need, so sample size is not a problem. You ask for the ideal amount of material you need to do the testing.

MR. SCHECK: Now, in terms of amounts--incidentally, in other words, are some of these DNA tests best performed when you can actually quantitate the amount of DNA?

DR. GERDES: All of them are, yes.

MR. SCHECK: Is that particularly important in PCR testing?

DR. GERDES: Yes.

MR. SCHECK: What are the recommended amounts for the DQ-Alpha PCR technique in terms of the minimum amount of DNA that you would like to have in a sample?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Do you know--are you familiar with the DQ-Alpha reverse dot blot method?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the literature concerning that technique?

DR. GERDES: Yes.

MR. SCHECK: The user guide?

DR. GERDES: Yes.

MR. SCHECK: Is there anything in that literature, the user guide, that indicates what the preferred amount is, for example, in terms of minimum size for doing a DQ-Alpha reverse dot blot analysis?

DR. GERDES: Yes.

MR. SCHECK: And what would that be?

DR. GERDES: The minimum amount that is recommended is two nanograms.

MR. SCHECK: And what about the D1S80 technique? Are you familiar with that?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the literature surrounding that technique?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the user guide and the protocol for that technique?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of--so you were getting back to the issue of sample size. You said that in the medical setting you can control the amounts of DNA that is being tested; is that correct?

DR. GERDES: That's correct. You can ask for an ample size of the original sample. You can purify the DNA and you can quantitate precisely the amount and therefore add the ideal concentration of DNA that is needed for the particular test.

MR. SCHECK: Now, in terms of sample size, in your review of the evidence in this case and in other forensic cases, does the same situation obtain in terms of the availability of sample?

MR. CLARKE: Objection, vague.

THE COURT: Sustained.

MR. SCHECK: What kind of amounts of samples have you encountered in this case and in other cases as compared to the amounts in the medical and research setting?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: In this case and in other cases frequently you have very, very small amounts of DNA and that is basically because you take what you get. You have no option. You have to work with whatever is there. And so frequently that is very, very small amounts, less than what is ideal and less than what is recommended for these kind of tests.

MR. SCHECK: In terms of the risk of contamination and erroneous typing, are there greater risks associated with the kind of small samples that one encounters in forensic case work than in the medical generous sample size in the clinical context?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained. Doctor, let me ask you to take the longer pointer and step back one step so that the court reporter can hear what you are saying.

DR. GERDES: Sure.

MR. SCHECK: Does sample size have anything to do with the problem of contamination and erroneous typing?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. GERDES: Yes. Sample size, if it is too small, there is an increased risk of contamination, there is an increased risk that you will miss some of the DNA, that is, something is there and you don't find it.

MR. SCHECK: All right. And in your judgment did the minuscule size--what does the term "Minuscule" mean?

DR. GERDES: Small, very small.

MR. SCHECK: Okay. Is that the kind of sample you are talking about that is encountered in forensic case work?

DR. GERDES: Yes.

MR. SCHECK: All right. Are--now, does the minuscule sample size encountered in forensic case work, what implication does that have for you as far as you are concerned in terms of the risk of contamination and error as compared to the clinical setting.

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: It is a tremendously increased risk of contamination and error.

MR. SCHECK: All right. Now, in the clinical context, in terms of mixtures, what kind of sample do you get there as opposed to forensic case work?

DR. GERDES: Well, in the clinical setting for the vast majority of the types of tests we do we are concerned with a specimen or a sample that comes from one individual and so it is very rare that we will work with something that is a mixture.

MR. SCHECK: And what about the sources of those samples?

DR. GERDES: The sources are well-known to be a single individual.

MR. SCHECK: In the forensic context and in this case what kind of samples are often encountered?

DR. GERDES: Most of the times in a forensic case obviously you don't--you are finding something at a crime scene, so you have no way of knowing whether that came from only one individual, one contributor, two contributors, three contributors. You have no way of really knowing how many people that might have actually come from and that--that is--that means that you don't--you don't know if you have a mixture. And then when you do the analysis, frequently it is found to be a mixture.

MR. SCHECK: And in terms of the risk of contamination and error, in which application of DNA techniques is the risk of contamination and error greater just because in the nature of that sample?

DR. GERDES: It is much greater in the forensic setting. It is very, very difficult. It is a difficult task to deal with these mixtures because the genetic systems are more precise and can be interpreted more--more cleanly if you know you are only working with one person.

MR. SCHECK: Would it be fair to check off this box now?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of handling of samples within a laboratory, could you compare for us which of the applications has more or less handling of samples within the laboratory?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. Are you familiar with the specimen handling techniques in clinical laboratories?

DR. GERDES: Yes.

MR. SCHECK: Have you examined the specimen handling techniques used by the Los Angeles Police Department in this case?

DR. GERDES: I have.

MR. SCHECK: Are you familiar with the techniques used by Cellmark and the Department of Justice?

DR. GERDES: Yes.

MR. SCHECK: Are you familiar with the specimen handling techniques used by the other laboratories that you visited?

DR. GERDES: Yes.

MR. SCHECK: These were all forensic laboratories?

DR. GERDES: They are.

MR. SCHECK: Dealing with forensic samples?

DR. GERDES: Yes.

MR. SCHECK: All right. Which laboratory does more or less handling of the samples in the course of doing DNA testing?

MR. CLARKE: Excuse me. Objection. No foundation.

THE COURT: Overruled.

DR. GERDES: There is much more handling in the forensic setting. Those specimens are--because they are found at a crime scene, and in a non-sterile situation, they have to be handled, itemized, packaged, transported to the lab and then sorted out so that they--they can be analyzed--reserving perhaps some for future analysis by both the Defense and the Prosecution in the case and then they have to be handled from a non-sterile state from the very beginning, because they are found that way. In a clinical lab we can work with one specimen in a sterile drawn tube that was transported to the lab, immediately goes right into the testing process and it is not handled for anything other than that.

MR. SCHECK: Now, in terms of the risk of contamination and error, where is it greater, in the situation where there is less handling of the sample or in the situation where--the forensic situation where the samples have to be taken from the scene, dried, unpackaged, dried, packaged again, opened again, cut up again, et cetera?

DR. GERDES: The risk is tremendously greater in the forensic setting.

MR. SCHECK: Now, in this connection, in the clinical area do you have occasion to do what is known as split samples for independent testing with other laboratories?

DR. GERDES: Occasionally we do that, yes.

MR. SCHECK: All right. When you are dealing with sensitive PCR kind of testing, how is a sample split or put aside for independent testing by another laboratory?

DR. GERDES: Well, the ideal situation would be at the time that the specimen is collected, you would collect two tubes and one would be transported directly to laboratory one and another is transported directly to laboratory two. There is no possible contact between those two labs.

MR. SCHECK: Is the idea--in terms of the handling when you are doing a split for an independent laboratory analysis, is the idea to minimize the exposure or handling of that sample in laboratory one?

DR. GERDES: Yes.

MR. SCHECK: And why is that?

DR. GERDES: Well, as I explained earlier this problem of cross-contamination, if that becomes an issue, then if you have designed the entire way in which the sample was tested in such a way that there is--it is impossible, absolutely impossible for laboratory one, their specimen to have come in contact with laboratory two or vice versa, then by the very design of the way you set it up, it eliminates that whole argument.

MR. SCHECK: All right. Now, in terms then again of minimal handling and multiple handling, is it your testimony there is a higher risk of contamination and error in the forensic application?

DR. GERDES: Yes.

MR. SCHECK: I would like to turn to the question of error rates. Your Honor, I think it will go faster here, I can finish this board and then take a break. Would that be fair? Do you want to break right now? Okay.

THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning break at this time. Please remember all of my admonitions to you. We will stand in recess for fifteen minutes.

(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. The jury is not present. All right. Deputy Magnera, let's have the jury, please.

MR. CLARKE: Your Honor, one item if I might briefly?

THE COURT: Mr. Clarke.

MR. CLARKE: During testimony of Dr. Gerdes he brought up the fact that he had been granted certain funds as a result of a proposal to an IST or a, quote, newer or better method. I can't recall the words he used. During the break I asked Mr. Scheck and Dr. Gerdes about the availability of that proposal. I was informed by Dr. Gerdes that there would be no problem of providing a one-page copy of the grant that contains an abstract of the proposal, but as to the proposal, Dr. Gerdes explained that there was a proprietary interest and that that would not be available to the People. It is our request that that be provided. I think it is very relevant in this case for reasons that I can give if the Court would like to hear immediately.

MR. SCHECK: We have offered to make Dr. Gerdes available to explain in any great detail anything that Mr. Clarke wants to ask him about the proposal and the technique, and I would have to consult with him further about what the legalities are in terms of the proprietary nature of it.

THE COURT: All right. Why don't you confer over the lunch hour on that issue, all right? And what is--one of the Court's available remedies in these issues is to issue a protective order if anything like that is produced.

MR. SCHECK: Right, okay.

THE COURT: And that the copy not be copied and it be returned to the Court's custody upon review and that it can be kept here in the courtroom.

MR. SHAPIRO: Yes.

MR. CLARKE: Very well.

THE COURT: All right. I'm sure we can accomplish that.

MR. CLARKE: All right.

THE COURT: 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. Let the record reflect that all the jurors have now rejoined us. Dr. John Gerdes is on the witness stand undergoing direct examination by Mr. Scheck. Mr. Scheck, you may continue.

MR. SCHECK: Thank you, your Honor.

MR. SCHECK: Dr. Gerdes, let's turn to the issue of error rates. How are errors known? How do you learn about errors in the clinical context?

DR. GERDES: Well, one way to determine if an error has been made in a clinical lab is by and through the proficiency testing. The NMBB program, as I explained earlier, that is blind proficiency testing and what that means is every week if we have sixty samples that are sent to us to be typed, ten of them are incorporated as controls and we don't know which ten those are, and then if during the course of our typing if we make errors, that will pick up the error immediately.

MR. SCHECK: Besides proficiency testing, which we will discuss a little bit more in a moment, are there other ways that a clinical laboratory finds out, such as your own and others that you are familiar with, that it made a mistake in error?

DR. GERDES: Again, in the case of bone marrow transplantation, as I explained, if we give marrow to a recipient that doesn't match, the patient comes down with graph versus host disease and can die because there was an incorrect match, so in the clinical setting mistake is fairly drastic.

MR. SCHECK: So in other words, would it be fair to say that in that in the clinical setting you do a DNA typing bone marrow solid organ transplant and post-transplant infectious disease screening, and if your laboratory made a mistake, that would be become known because the--because of an actual outcome of the patient and you would hear about it?

DR. GERDES: That's correct.

MR. SCHECK: And you would really hear about it, wouldn't you?

DR. GERDES: Yes, yes.

MR. SCHECK: Now, in the context of a forensic test, is there a difference in terms of finding out whether or not an error has been made in a case or how easy is that to determine?

DR. GERDES: It is extremely difficult, because in the legal system we depend upon the jury to decide what is truth and what is not truth, so it is really--there is no independent way of confirming whether the correct decision was made or not.

MR. SCHECK: Well, put it another way: In terms of the forensic labs, as opposed to the clinical labs, there is no independent outcome, objective independent outcome that you can make a comparison to? Would that be a fair statement?

DR. GERDES: That's correct, yes.

MR. SCHECK: So would you agree that in respect the error rates are not as well known in the forensic setting?

DR. GERDES: That is true.

MR. SCHECK: In terms of your examination, the laboratory standard in clinical laboratories in terms of the protocol, procedures and the standards set out by accrediting agencies compared to the 23 forensic labs that you've looked at, which has the higher laboratory standards in terms of specimen handling and basic fundamental DNA techniques?

DR. GERDES: In a clinical lab we have, as I mentioned, a number of agencies that inspect us. We are always being inspected, and these agencies, they have mandatory guidelines, mandatory requirements, there are laws that we have to follow, and so the standards are fairly high and they are mandated to be high by law. In a forensic laboratory there isn't a similar organization that would--that has mandatory accreditation for those kind of laboratories, so they are lower standards in the forensic lab.

MR. SCHECK: Now, the Asclad program, to your understanding is that--that is a voluntary program?

DR. GERDES: It is voluntary.

MR. SCHECK: And I think there has been testimony in this case that DOJ and Cellmark are but that the LAPD is not. Is that your understanding?

DR. GERDES: That's correct.

MR. SCHECK: All right. Now, in terms of proficiency testing, you began to tell us before, could you tell us briefly a little bit more about that national bone marrow donor transplant program. How many samples does your lab get a month?

DR. GERDES: At the present time we are getting 200 actual samples a month of which forty are controls that are incorporated into what comes into the lab and we don't know which forty are the controls.

MR. SCHECK: So you think that the--all sixty samples that you are getting that month that you have to do DNA typing on, you think that is a regular case?

DR. GERDES: They are not marked in any way. We know ten of them are controls, but we don't know which ten.

MR. SCHECK: And in terms of the definitions that we have been using in this case, would you--is that an external blind proficiency test, that is, it is done by an outside agency and the laboratory is blind, that is to say, you don't know whether it is a real case or not?

DR. GERDES: That's true.

MR. SCHECK: All right. And the--you also undergo what we've called open proficiency tests, that you know you are being tested and you are sent samples; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: And have you reviewed the proficiency tests that have been done by LAPD, DOJ and Cellmark and other forensic laboratories?

DR. GERDES: I have.

MR. SCHECK: And in terms of the proficiency tests themselves, the kind of samples received and the nature of it, in your judgment which is more rigorous, the clinical proficiency tests you have described or the forensic proficiency tests that you've reviewed of LAPD, Cellmark, et cetera?

DR. GERDES: Well, in order for a proficiency test to be realistic, it should really mimic exactly what you are trying to test as far as the ability for a lab to do something, and so what you attempt to do is design these samples to be exactly like what you are claiming to test. And in a clinical setting that means that the samples that are sent to us are essentially identical to a patient sample and it comes in and it is incorporated into our normal run for that day, our normal testing for that day, and then it is treated in the same way and you report the result, just like you would any patient. In the forensic setting that is a little more difficult because of the fact that, remember, these samples come in from an infinite variety of states, conditions, places where they were found, how old they are, what they were exposed to in terms of humidity and temperature and length of time, and so it is extremely difficult to mimic that on all different kinds of varieties of specimens that you might do. And mixtures are another problem. You should really do the hardest possible type of specimen to get an idea about the maximum error rate when you have the hardest test.

MR. SCHECK: Well, Dr. Gerdes--

DR. GERDES: That would be a degraded mixed specimen with very little DNA, for instance.

MR. SCHECK: Have those kind of--are those kind of samples done in the proficiency tests that were performed by LAPD, Cellmark and DOJ?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Have you reviewed the CTS and CAP proficiency tests that were done by LAPD in this case?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed some that were done by DOJ?

DR. GERDES: Yes.

MR. SCHECK: Have you reviewed some of Cellmark's tests?

DR. GERDES: Yes.

MR. SCHECK: All right. In your judgment, in terms of the nature of proficiency tests, which are more rigorous, the clinical or the forensic?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: In terms of the samples that are given to the laboratories for proficiency tests, which are more rigorous, the ones encountered in the clinical work or the forensic?

MR. CLARKE: Same objection.

THE COURT: Counsel, the problem was the testimony was the same or some of the proficiency tests. I don't know what range. He may have looked at one proficiency test per lab. That doesn't tell me anything.

MR. SCHECK: Oh.

MR. SCHECK: Have you looked at every proficiency test done by the LAPD?

DR. GERDES: Yes.

MR. SCHECK: How many proficiency tests did you look at from the Department of Justice?

DR. GERDES: Umm, I can't present a precise number. It was somewhere in the range of between six and ten.

MR. SCHECK: All right. Incidentally, are these the--the Department of Justice and LAPD doing some of the same tests?

DR. GERDES: Yes.

MR. SCHECK: In other words, the CTS and CAP tests that they were doing are precisely the same sample?

DR. GERDES: But sent to different labs, yes.

MR. SCHECK: Okay. Now, in terms of what you reviewed in those laboratories, and comparing that to the clinical tests you are familiar with, which would you say in terms of the samples are the more rigorous ones, more rigorous proficiency tests?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. GERDES: In the proficiency that I saw, all of those proficiency tests involved unmixed blood specimens from known individuals or easier types of specimens, not--none of them were degraded or mixtures, for instance.

MR. SCHECK: So would you say the forensics?

DR. GERDES: I would say forensics.

THE COURT: Excuse me, gentleman. You are going to have to stop talking at the same time, especially you, Mr. Scheck. Slow down a little.

MR. SCHECK: My apologies.

THE COURT: The court reporter is writing me messages.

MR. SCHECK: Finally, Dr. Gerdes, are you familiar with the use of statistics in terms of DNA tests?

DR. GERDES: Yes.

MR. SCHECK: Are you an expert in population genetics?

DR. GERDES: No.

MR. SCHECK: Are you a user of some of those statistics?

DR. GERDES: Yes.

MR. SCHECK: Are you aware of statistical controversies in terms of--withdrawn. Let me put it this way: To your knowledge, in terms of the DNA test results in the clinical setting, is there any controversy over statistics?

DR. GERDES: There is.

MR. SCHECK: In the clinical setting?

DR. GERDES: Oh, in the clinical setting, I'm sorry. For the majority of the work we do in that setting there is no statistics involved.

MR. SCHECK: When you say no statistics involved, what do you mean?

DR. GERDES: Well, the kind of questions you would ask, for instance, if we are doing HLA, we are asking--the question is we have two individuals, do they have precisely the same HLA? And you have the two individuals right there, so you don't have to calculate what chance at random that would happen in a population because you know what two individuals you are looking at. You are either looking at--you are looking at a known person who needs that transplant and you are looking at a donor and you know both of those people.

MR. SCHECK: You are aware in forensics, I take it, one uses databases to calculate statistics?

DR. GERDES: Yes.

MR. SCHECK: Are you aware of the statistical controversy in forensics?

MR. CLARKE: Objection. I'm sorry. No foundation, calls for hearsay, also assumes facts not in evidence.

THE COURT: You can say yes or no he is aware of it.

MR. SCHECK: Are you aware of it?

DR. GERDES: I am aware of it.

MR. SCHECK: Incidentally, doctor, have you reviewed the report on "DNA technology in forensic science" by the national research council?

DR. GERDES: Yes.

MR. SCHECK: Do you regard that as an authoritative text?

DR. GERDES: Yes.

MR. SCHECK: Do you rely upon the conclusions in that text?

DR. GERDES: Yes.

MR. SCHECK: And have you read the section there dealing with statistical controversy?

DR. GERDES: Yes.

MR. SCHECK: Just the fact--all right. Your Honor, I believe we are finished with this board.

(Brief pause.)

MR. SCHECK: Now, Dr. Gerdes, did you conduct an examination of DQ-Alpha hybridization strips at the Los Angeles Police Department that began on May 20, 1993, strips from May 20, 1993, through August 25, 1994?

DR. GERDES: I did.

MR. SCHECK: And could you please tell us what kind of data these strips came from?

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Overruled.

MR. SCHECK: Well, did you get these from the Prosecution?

DR. GERDES: Yes, they were provided.

MR. SCHECK: Did you go to the lab and look at some of them?

DR. GERDES: I did.

MR. SCHECK: All right. Were you provided something that were known as LAPD validation studies?

DR. GERDES: Yes.

MR. SCHECK: What were those?

DR. GERDES: Well, LAPD, when they first set this up in May of 1993, they collected specimens from--

MR. CLARKE: I'm sorry, excuse me. Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. Did you receive documentation from the Los Angeles Police Department entitled "Validation studies"?

DR. GERDES: There is a cover page that discusses that they looked at various specimens for the purpose of validation. I don't think it was really titled "Validation studies," but I have called it that and they use it as--and on that page it discusses using those specimens for the purpose of validation.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, I would show the witness what has previously been marked as Defense 1181-A.

THE COURT: All right. Have you shown that to Mr. Clarke?

MR. SCHECK: Actually, while we are at it, 1181-B as well.

THE COURT: All right.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. SCHECK: You said Clarke and I thought one Clark was enough.

THE COURT: Clarke and Clark. Thank you.

DR. GERDES: Yes.

MR. SCHECK: And I will just briefly put those on the elmo to remind the jury what we are looking at.

(Brief pause.)

MR. SCHECK: Could we--

MR. SCHECK: So this is a document entitled "PCR method validation training record"?

DR. GERDES: Yes. I didn't recall what they actually titled it as such. It looks like they did.

MR. SCHECK: All right. And--and 1181-B is--represents what?

DR. GERDES: This is a list of some of the standards, the individuals that they use for the validation.

MR. SCHECK: So in other words, what they are indicating here is that a series of bloodstains, saliva from swabs and cigarette butts, hair, blood saliva and hair sets, mock vaginal swabs, nine known bloodstains, family studies, these are known samples that were then sent out to the analysts to type; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: And it indicates here that all the above validation work was performed by Erin Riley and Collin Yamauchi and every validation sample either gave the expected typing result or no typing result was observed--at no time was an incorrect typing result observed?

DR. GERDES: That is what it says.

MR. SCHECK: All right. Now, did you review all the hybridization strips based on this PCR validation set of samples from the LAPD?

DR. GERDES: I did.

MR. SCHECK: All right. And did you review as well the--all the LAPD proficiency test strips from their internal tests, from the proficiency tests, from the collaborative training service and the College of American Pathology?

DR. GERDES: Yes.

MR. CLARKE: I'm sorry, objection; no foundation.

THE COURT: Overruled.

MR. SCHECK: Did you review samples that were received by LAPD from what is called their Korean database?

DR. GERDES: Yes.

MR. SCHECK: All right. And that is blood samples from people that are self-described to be Koreans that they typed; is that right?

DR. GERDES: That's correct.

MR. SCHECK: Did you look at case work strips during this period of May, 1993, to August, 1994?

DR. GERDES: There were some case work strips, yes.

MR. SCHECK: All right. Did you look at as many as you were permitted to see?

DR. GERDES: I looked at everything they gave me.

MR. SCHECK: All right. And when you evaluated the case work strips--withdrawn. On the proficiency tests, the validation studies and the Korean database samples, did you know what the sources of those samples were?

DR. GERDES: Yes.

MR. SCHECK: So they are known types; is that correct?

DR. GERDES: They are standards, that's correct.

MR. SCHECK: Standards. Now, in the case work, when you looked at the various strips from case work, did you know the source of every one of those samples in a case work--set of case work strips?

DR. GERDES: No.

MR. SCHECK: Which--which strips would you know in a case work in a case work sample came from a known source?

DR. GERDES: That would be the positive control and the negative controls from that particular case and any sample that was referred to as a reference sample would have been known to have come or defined to have been derived from one individual.

MR. SCHECK: All right. Let's just review it now for a second. The positive control, is that the 1.1/4 DNA sample that comes with the DQ-Alpha kit?

DR. GERDES: That's correct.

MR. SCHECK: The negative control or the negative controls, there is two kind of negative controls?

DR. GERDES: Yes.

MR. SCHECK: All right. One kind is the--what is known as the extraction control, that would be a sample that is not supposed to contain DNA?

DR. GERDES: Yeah. The extraction control consists of basically using the substrate which would be a control swab or a piece of cloth that is run through the DNA extraction process all the way through to the typing process and it controls for foreign DNA that might have been incorporated or accidentally introduced into that test during those procedures.

MR. SCHECK: And is there another control that is introduced at the end of the process when you amplify up the DNA?

DR. GERDES: Yes.

MR. SCHECK: That is called, what, a negative amplification control?

DR. GERDES: Amplification blank. Some people call it a water control. It basically does not go through the procedures involved in extracting DNA. It is incorporated at the stage where you copy the DNA or amplify the DNA, and so it only controls for the accidental incorporation of DNA at that stage.

MR. SCHECK: Now--a known reference sample in a case would be, let's say, in a sexual assault case if they took a sample from the victim, that would be a blood sample that would be considered a known; is that right?

DR. GERDES: It is considered to have come from one individual. I wouldn't know the type--the anticipated type, but it is--I think I--it is safe to assume that that is defined to have been obtained from a single individual.

MR. SCHECK: So--

DR. GERDES: It should not be a mixture.

MR. SCHECK: So when you are looking at a DQ-Alpha strip from a reference sample in case work from a known individual, you should see no more than two alleles or two--

DR. GERDES: That's correct.

MR. SCHECK: If you see three alleles--

DR. GERDES: That is an indication that it has to be a mixture, or in this case, since it was defined as having come from one individual, if you have an indication of three there, then that has to be contamination, that has to be foreign DNA that was incorporated or somehow got into that sample.

MR. SCHECK: All right. So when you looked at the case work strips from LAPD, you were examining to see whether there was contamination?

DR. GERDES: Yes.

MR. SCHECK: And you would determine that by looking at the positive controls that come with the kit, known reference samples and the two kind of--and the negative controls?

DR. GERDES: Correct.

MR. SCHECK: All right. And incidentally, if you get a dot, something showing up in the negative control, does that indicate contamination?

DR. GERDES: Absolutely.

MR. SCHECK: All right. So did you conduct an analysis of all these strips from the validation studies, the proficiency tests, the Korean database and all the case work samples that you could see at the LAPD from May of 1993 when they started, through August of 1994?

DR. GERDES: I did.

MR. SCHECK: All right. And what I would like to do now, your Honor, is put up a chart and will--doctor, do you have a set of strips that would illustrate how you--how you read them and went through your analysis to determine contamination?

DR. GERDES: Yes.

MR. SCHECK: All right. And I have shown this previously to Mr. Clarke. Could we mark this strip Defendant's next in order?

THE COURT: 1286, Mrs. Robertson? 1286.

(Deft's 1286 for id = strip)

MR. SCHECK: While Mr. Clarke is looking at that, I would like to pull out a board.

(Brief pause.)

THE COURT: All right. We will mark this chart next in order, 1287.

(Deft's 1287 for id = photograph)

THE COURT: This is called "Strips: Percent of contamination and/or artifacts." Mr. Scheck.

MR. SCHECK: Yes. First, maybe we could pull up and look at the entire sheet here and you can describe for us what this is generally.

MR. SCHECK: Now, is this the way you--is this the form in which you received most of this data?

DR. GERDES: Yes.

MR. SCHECK: All right. And up on the top it says what, "DNA hybridization record"?

DR. GERDES: Yes.

MR. SCHECK: And that would indicate--8/25, does that indicate the date that this hybridization was run?

DR. GERDES: Yes.

MR. SCHECK: And on top it indicates an analyst there. Is that a gentleman that you know works in the DNA lab whose name has been discussed?

DR. GERDES: Yes.

MR. SCHECK: Harry Klann?

DR. GERDES: Yes.

MR. SCHECK: Underneath it where it indicates "Confirming analyst," that would be the initials of who?

DR. GERDES: Collin Yamauchi.

MR. SCHECK: All right. And below that are the strips; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: And below that are--is the data that the analyst would write down recording what the analyst is seeing or concluding; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: It least what each of those is, the negative control, the positive control and the samples?

DR. GERDES: Correct.

MR. SCHECK: All right. Now, if we could focus in here, did you find contamination in this series of strips from the Korean database?

DR. GERDES: I did.

MR. CLARKE: Excuse me. Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. CLARKE: I'm sorry, move to strike the answer.

THE COURT: The answer is stricken. The jury is to disregard.

MR. SCHECK: Would you describe for us what you observed in these samples and what conclusion you drew?

MR. CLARKE: Same objection as to foundation.

THE COURT: That is a multiple question. He can describe what he observed at this point.

MR. SCHECK: Please first tell us what you observed.

DR. GERDES: I observed the typing results of these particular strips.

MR. SCHECK: All right. And what were these based on--what were these--what were these strips to represent?

DR. GERDES: In this particular case they were typing the Korean database. The top strip is the negative control.

MR. SCHECK: So--

DR. GERDES: That is the amplification negative control we talked about earlier. The second is the positive control which is the positive control that is incorporated in the kit. That is the 1.1, 4 control.

MR. SCHECK: Excuse me for a second, Dr. Gerdes. Maybe it would be easier, I think that--

DR. GERDES: Do you want me to go up--

MR. SCHECK: You have learned how to use this device?

DR. GERDES: I think so.

MR. SCHECK: Your Honor, may he leave the witness stand and use the pointer, please.

THE COURT: Yes.

DR. GERDES: (Witness complies.)

MR. SCHECK: Can you please describe for the jury how you analyzed this strip?

MR. CLARKE: I'm sorry, your Honor. I have an objection as to foundation as to this entire exhibit.

THE COURT: Sustained.

MR. SCHECK: What--reviewing these records--

(Brief pause.)

MR. SCHECK: What do these records represent? What do these strips represent based on these records?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Where did you get this from?

DR. GERDES: I obtained this from--during discovery it was obtained from the Los Angeles Police Department.

MR. SCHECK: And based on these records, what were you told this represented?

MR. CLARKE: Objection, calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: From whom did you learn what this was?

MR. CLARKE: Well, same objection.

THE COURT: Overruled.

MR. SCHECK: Did you have any conversations with Mr.--did you ever visit the lab and discuss how these records were put together with Mr. Yamauchi and Mr. Matheson?

DR. GERDES: Yes.

MR. SCHECK: All right. And based on those conversations what is your understanding of what these records represent?

MR. CLARKE: Same objection.

THE COURT: All right. I'm going to allow testimony on this subject to a foundation being laid for what it is.

MR. SCHECK: All right. Proceed.

DR. GERDES: My understanding is that this represents a particular typing run of--on which there are a number of individuals from the Korean database and a positive control and a negative control.

MR. SCHECK: All right. Could you please now in analyzing the strips--back up--okay. Could you please--

MR. CLARKE: Sorry. I still have the same objection as to foundation.

THE COURT: Noted. Thank you. There will be a standing objection to this type of document.

MR. SCHECK: Please tell us what these--what these strips are, according to their records.

DR. GERDES: The top strip--and I'm trying to get an arrow to work.

MR. SCHECK: Draw on that and see if you can move it.

(Brief pause.)

MR. SCHECK: He has got it.

DR. GERDES: Okay.

MR. SCHECK: Move it around now.

DR. GERDES: Okay. This particular strip right here, (Indicating), that moves along all the way across, this strip.

THE COURT: Appears to be the strip marked 261-1.

MR. SCHECK: What is that?

DR. GERDES: Correct. 261-1 represents the negative amplification control for this particular set of strips. Whoops.

MR. SCHECK: What is the next one down?

DR. GERDES: The next one down here represents the positive control, 261-2, and as you can see, it types as a 1.1, 4.

MR. SCHECK: Okay. What is the next one down?

DR. GERDES: The next series represents different individuals that were in the Korean database.

MR. SCHECK: All right. And how many in--could you look--directing your attention first to 261-4, how many alleles was that type to have?

DR. GERDES: I have to look at the sheet, but I believe they typed this as a 1.1, 1.1 because of this dot here, (Indicating), which represents the 1.1.

MR. SCHECK: Can we move out a little on this.

DR. GERDES: And this dot here which represents the 1, so it was typed at a 1.1, 1.1.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Okay. Just move it up. Pull it back. Pull it over. Could you move to the next one.

MR. SCHECK: Please describe on any of these known from the Korean database did you see more than one genotype or extra allele?

DR. GERDES: Yes.

MR. SCHECK: Could you tell us which one?

DR. GERDES: Well, none of these particular samples were typed as having a 4 allele and you can see here, and if you bring it up a little further I think it is clear, that you can see a 4 dot here, (Indicating), confirmed by the 1.2, 1.3, 4 dot here, (Indicating), and that is on this particular sample and it is also on this particular sample here, (Indicating), and it is on this particular sample here, (Indicating). In this case there is a dot present because there was a 1.2.

MR. SCHECK: Now, what does the existence of--what does the existence of the 4 lighting up at 261-4 and the 1.3 dot lighting up at 261-4 on that strip and the 4 and the 1.3--the 1.2, 3, 4 dot lighting up on the 261-6 strip? What is the significance of that?

DR. GERDES: Well, the significance of those weak dots are that there really should not be more than two alleles here. That represents a third allele. These samples came from a database presumably from single individuals, and therefore that represents human DNA that shouldn't be there, and that is what our definition of contamination is.

MR. SCHECK: And that holds I take it also for 261-7?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, if we move back a little bit, focusing on another part of this sheet.

MR. SCHECK: How did LAPD--what observations did they make with respect to some of these samples in terms of that 4?

DR. GERDES: They recorded the presence of those, but didn't incorporate them into their typing result.

MR. SCHECK: So in other words, in the fourth strip down that you are pointing that they recorded as a 1.1 with a 4; is that correct?

DR. GERDES: Correct.

MR. CLARKE: I'm sorry, your Honor, would it be possible to have the chart moved?

THE COURT: Yes.

MR. CLARKE: Thank you.

MR. SCHECK: Put this down for the time being.

(Brief pause.)

MR. SCHECK: And in the seventh strip down, again those--what does that nomenclature indicate "4 less than c"?

DR. GERDES: It indicates that there was a 4 dot observed, but it was less than the control dot and the control dot, if you remember, is the dot that determines whether or not there was an adequate amount of DNA to proceed with typing.

MR. SCHECK: Now, in your opinion does the fact that that 4 is less than the control dot, does that mean that the--those 4's are not contaminants?

DR. GERDES: Absolutely not.

MR. SCHECK: Why?

DR. GERDES: Because of--there are a number of possible explanations as to why you would have that additional dot, and there are no known descriptions of that particular dot, the 4 dot, having what are known as cross-hybridization problems, and so the only explanation for that particular dot is that it is real, not an artifact, and that that dot represents additional human DNA.

MR. SCHECK: So in other words, additional human DNA, that 4 dot means that those samples are contaminated in some fashion somehow?

DR. GERDES: It does.

MR. SCHECK: Now, did you, in going through the strips that you looked at--and I would ask that this be marked as--what's next in order?

THE COURT: 1288.

MR. SCHECK: 1288.

(Deft's 1288 for id = chart)

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, if I make a request is that--to expedite this, could we reconfigure the errors on the typing strip at the break and then print it out?

THE COURT: Yes, yes.

MR. SCHECK: Should we give that a number and I will make sure to do that.

THE COURT: Yes. It should be 1286-A.

(Deft's 1286-A for id = photograph)

MR. SCHECK: We will do that with Mr. Clarke at the break. And so this would be 1288.

MR. SCHECK: Now, did you--did you conduct a--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Did you prepare a chart indicating in all the samples you looked at that the LAPD from the validation studies, the Korean database, the proficiency tests and the case work, all the strips you looked at, how many times you saw a 4 allele in a known sample where it shouldn't be which in your opinion was contamination?

DR. GERDES: I did.

MR. SCHECK: All right. And could you please explain what this chart represents?

DR. GERDES: Well, this represents a graphical picture of that beginning in May. What we see is that they really didn't experience it initially. I didn't observe, anyway, these extra 4 dots--

MR. SCHECK: Well, before you leave there, just so we understand what we are talking about, when that box says 5/93 and underneath it 0/32, what does that represent?

DR. GERDES: This is May of 1993 and under here are the number of type strips I looked at and how many times I found that 4 as an additional dot.

MR. SCHECK: All right. So--

DR. GERDES: And then represents--the percentage would be calculated from this and then displayed.

MR. SCHECK: So if I could move through it quickly then, 5/93?

DR. GERDES: Nothing.

MR. SCHECK: 32 strips, nothing?

DR. GERDES: 6/93, 50 strips, nothing; 7/93, 56 strips, nothing; 8/93, 1 out of 38; and 9/93 now, 9 out of 136; and 10/93 there were 5 out of 97; and in 11/93 there were 2 out of 11; in 12/93, zero out of 17; January of `94, 18 out of 50; February, zero out of 8; March, 1 out of 5; April, 18 out of 46; May, 4 out of 45; June, 1 out of the 16; July, 1 out of 12; and August, 10 out of 61.

MR. SCHECK: All right. Then if we pull back and look at the chart as a whole, you then looked at those absolute numbers and created a sample bar graph of what that--what this 24 allele contaminants represented?

DR. GERDES: Correct.

MR. SCHECK: As a percent?

DR. GERDES: Correct.

MR. SCHECK: All right. And as far as the 4 allele is concerned, when you see an extra 4 allele, there is no question in your mind that is a contaminant?

DR. GERDES: It has to be contamination.

MR. SCHECK: Now, I would like to look at what I would ask to be marked as--1288, this will be 1289.

THE COURT: All right. 1289.

(Deft's 1289 for id = chart)

MR. SCHECK: Did you do a similar analysis for the 1.2 allele?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, what is the 1.2 allele in the strip? Is there any particular dot for the 1.2 allele?

DR. GERDES: No. There isn't a specific probe for this particular allele. You depend upon the 1.2, 1.3, 4, dot and interpret it in context of the other dots to make a decision as to whether it is really a 1.2 or not.

MR. SCHECK: So did you perform a similar analysis in terms of numbers of strips and percentages whenever you saw an additional 1.2 allele on a known sample?

DR. GERDES: Yes.

MR. SCHECK: All right. And this table represents that?

DR. GERDES: Yes.

MR. SCHECK: All right. And whenever you see a 1.2 allele, an extra 1.2 allele, in your opinion is that definitely contamination?

DR. GERDES: It is definitely contamination.

MR. SCHECK: Now, I would ask to mark what is 1290.

(Deft's 1290 for id = chart)

MR. SCHECK: Did you do a similar analysis for the no. 2 allele?

DR. GERDES: I did.

MR. SCHECK: And does this chart represent that?

DR. GERDES: It does.

MR. SCHECK: All right. And it is a percentage analysis as well as the absolute analysis?

DR. GERDES: That's correct.

MR. SCHECK: Just to move in, just to give us a sense of it, for example, in January of 1994, you are seeing what there?

DR. GERDES: 20 out of 50 strips which whatever percentage that is, and in February there was zero out of 8; 2 out of 5 in March; 17 out of 46 in April; 2 out of 45 in May.

MR. SCHECK: Et cetera?

DR. GERDES: Et cetera.

MR. SCHECK: All right. Now, I would ask to mark this as Defense 1291.

THE COURT: So marked.

(Deft's 1291 for id = chart)

MR. SCHECK: This would be an analysis of the 3 allele?

DR. GERDES: Correct.

MR. SCHECK: And I take it that--

DR. GERDES: They don't seem to have too much of a problem of the 3 allele. There was only one observation that was made, but I can't read it.

MR. SCHECK: 3 out of 61?

DR. GERDES: 3 out of 61, yes.

MR. SCHECK: When you see a 3 allele is there any doubt in your mind an extra 3 allele, that that is contamination?

DR. GERDES: It is definitely contamination.

MR. SCHECK: Now, are there certain--what is an artifact?

DR. GERDES: (No audible response.)

MR. SCHECK: In this DQ-Alpha system?

DR. GERDES: It is a result, a mistaken result that is as a result of a flaw in the system.

MR. SCHECK: All right. Now, is there some--in other words, you see a dot that is a result of some defect in the system and it is not necessarily--

DR. GERDES: Correct. A limitation of the typing system itself has created that signal so that you can't really determine if it is real or not.

THE COURT: Mr. Scheck and Dr. Gerdes, please, you can't talk at the same time.

MR. SCHECK: All right.

MR. SCHECK: Is there a--with the 1.1 allele, is there sometimes something that arises as an artifact?

DR. GERDES: Yes.

MR. SCHECK: All right. Do you have something from the user guide that can demonstrate that for us?

DR. GERDES: I believe so.

(Brief pause.)

DR. GERDES: I gave it to you.

MR. SCHECK: It is a trick question.

(Brief pause.)

MR. SCHECK: I ask that this be marked as--

THE COURT: 1291.

MR. SCHECK: 1291.

THE COURT: Excuse me, 1292. 1292.

MR. SCHECK: 1292.

(Deft's 1292 for id = chart)

MR. SCHECK: Can we focus in on the strips known as 7 and 8 there?

MR. SCHECK: Now, what does this illustrate, doctor?

DR. GERDES: Can you focus that a little better and get it enlarged a little better? These two strips represent a typing in which you have a classic example of what is known as the DX gene and that is an artifact in this particular typing system. It is a limitation of this system and it occurs when you have alleles other than the 1, so here we have a 2 and a 3, for instance, in both cases, and the C dot is found and there is you can barely see it, but there is a 1.1 here in both of these strips.

MR. SCHECK: Now, is that one--

DR. GERDES: Here, (Indicating), and here, (Indicating).

MR. SCHECK: All right. Okay. All right. Now, is that--maybe we should have Mr. Harris do this.

DR. GERDES: I'm sorry.

MR. SCHECK: Okay. Why don't you put another dot on the other 1.1 there. Okay, 1.1 there. And could you write on the upper left-hand side of the top of the chart, "DX." Do we know how to do that?

DR. GERDES: I believe so. (Witness complies.)

MR. SCHECK: All right. Now, the--I take it then when you see a light 1.1 dot but no 1 dot on the far left-hand side--is that correct?

DR. GERDES: That's correct.

MR. SCHECK: --that is what you call a classic DX?

DR. GERDES: Yes.

MR. SCHECK: And what is--if you can very, very simply, just tell us what that is? Why does that happen?

DR. GERDES: Well, the explanation is that there is another gene that is similar enough to the DQ-Alpha gene to have some of the probe signal to give some probe signal on that particular dot, and so if you have a lot of DNA, and by the literature that means greater than six nanograms of DNA, you can sometimes see this artifact.

MR. SCHECK: Now, let's assume that in these two instances that we are looking at where the arrows are pointing, those are the expected genotypes from that sample, is a 2 and a 3, right?

DR. GERDES: Correct.

MR. SCHECK: Because the 2 and the 3 dots are lighting up?

DR. GERDES: That's correct.

MR. SCHECK: Let's assume for--that the real genotype that you are typing is a 1.3, 2 or some other allele, a 1.3 or a 1, that would light up the 1 dot on the left-hand side.

DR. GERDES: Okay.

MR. SCHECK: And you also saw a 1.1 dot.

DR. GERDES: Yes.

MR. SCHECK: Could you tell whether that was the DX or a contaminant?

DR. GERDES: No.

MR. SCHECK: You couldn't determine either way?

DR. GERDES: Because the definition of DX requires that you have actually two probes here, one, the 1 dot confirms that there is actually a 1 there, so if there is another allele there that is a 1, that dot will light up and now the 1.1 is really confirmed by that first dot and so you can't make a decision, a scientifically sound decision, unless you do additional testing, sequence it or do something else, because in that particular set-up it could be a DX or it could be a real allele.

MR. SCHECK: Well, is it a good thing in terms of a typing systems to have this kind of possible DX artifact that confuses interpretation?

DR. GERDES: No. The problem with this is if it is from one individual, you can sometimes, as in this case, make an excuse that that 1.1 is just an artifact, but if it is in a forensic sample and you don't know it is from one person, now you can no longer decide is that real or is that due to a mixture, and especially in a situation where you have that 1 dot.

MR. SCHECK: Now, when you went through the DOJ typing strips, did you do an analysis of instances where you found extra 1.1 alleles?

DR. GERDES: I did.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, could we print this out from the elmo now?

THE COURT: Yes.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: 1292-A.

THE COURT: So marked.

(Deft's 1292-A for id = printout)

MR. SCHECK: And at an appropriate time, your Honor, I would ask to pass it to the jury because I understand that it is in terms of seeing the light dots it is easier on this one than it is on the monitor.

THE COURT: I don't know. Can you see it right now?

MR. SCHECK: Sorry?

THE COURT: It is clear on what the elmo has printed out there.

MR. SCHECK: Yeah. I think you can see it on what the elmo has printed out.

THE COURT: All right. Let's do it now since if we do it later the jury may not recollect what this relates to.

MR. SCHECK: Thank you.

THE COURT: All right.

(The exhibit was passed amongst the jury.)

MR. SCHECK: Dr. Gerdes, you--would it be pair to describe--

THE COURT: Excuse me. I'm sorry, counsel. The record should reflect that each member of the jury has had an opportunity to view 1292-A.

MR. SCHECK: And 1292.

THE COURT: -a.

MR. SCHECK: Now, 1292-A can be described as the classic DX, right?

DR. GERDES: That is the classic example that is used to show this artifact phenomena, yes.

MR. SCHECK: How many times, in your analysis of looking at extra 1.1 alleles, did you see the classic DX without a 1 dot?

DR. GERDES: Of the alleles that were counted as 1.1 extra dots, 7.6 percent of those were due to this classic kind of example.

MR. SCHECK: And would that be 9 out of 46?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, what is the next one, your Honor, I'm sorry?

THE COURT: 1293, I believe.

MR. SCHECK: 1293.

THE COURT: Yes, 1293.

(Deft's 1293 for id = chart)

MR. SCHECK: Did you chart in the same manner that you did--did you create a chart of extra 1.1 dots that you saw?

DR. GERDES: Yes.

MR. SCHECK: And is this that chart?

DR. GERDES: It is.

MR. SCHECK: This again is representing May through August of 1994?

DR. GERDES: Correct.

MR. SCHECK: So what you are telling us is that nine of these 1.1's were the classic DX?

DR. GERDES: Correct.

MR. SCHECK: And the rest of them were 1.1's where there were 1 dots present?

DR. GERDES: Correct.

MR. SCHECK: Where it could be a contaminant?

DR. GERDES: Correct.

MR. SCHECK: And we would call the classic DX an artifact?

DR. GERDES: Correct.

MR. SCHECK: All right. Now, with respect to the 1.3 dot, did you compile a similar chart of your observations of all the strips?

DR. GERDES: I did.

MR. SCHECK: And I would ask to mark this 1294.

(Deft's 1294 for id = chart)

MR. SCHECK: Now, the 1.3 allele, when you see an extra 1.3 allele, are there situations where that could be an artifact as opposed to a contaminant?

DR. GERDES: Yes. It has been observed and described in the literature that on this particular allele, if you use DNA concentrations greater than six nanograms, you can see faint signals on that particular dot.

MR. SCHECK: Is it your understanding that the samples in question were contemplated to have as much as six nanograms, the ones that you looked at?

DR. GERDES: Some of these may have, yes.

MR. SCHECK: All right. Does this represent the number of 1.3 alleles that you saw?

DR. GERDES: It does.

MR. SCHECK: When you are looking at a forensic case and you see a 1.3 allele, an extra 1 dot, and the sample has less than six nanograms of template DNA, what is the best interpretation of that?

DR. GERDES: If it is less than that amount of DNA, the best interpretation is that it is a true contaminant.

MR. SCHECK: All right.

DR. GERDES: It is extra DNA.

MR. SCHECK: Now, did you--now, I would like to turn to the larger chart. Did you do a compilation of all those individual allele charts, pulling them all together to look at all the strips that you examined? And this is--what did we mark this as?

MR. DOUGLAS: 1287.

MR. SCHECK: 1287.

MR. SCHECK: On 1287, did you do an overall chart indicating what you found in terms of contamination and the artifacts you described, the--the seven DXs?

DR. GERDES: Yes.

MR. SCHECK: Over this period between May of 1993 and August of 1994?

DR. GERDES: I did.

MR. SCHECK: And this represents absolute numbers and percentages?

DR. GERDES: Correct.

MR. SCHECK: Now, did you also look at what are known as runs?

DR. GERDES: Yes.

MR. SCHECK: What is a run as opposed to these strips?

DR. GERDES: On a given day you will test a series of strips. It can be a minimum of perhaps eight or as many as thirty or forty, but on a given day, if you look at all of those strips, that is called a run.

MR. SCHECK: All right. Now, did you do--so in other words, these are the individual strips by month?

DR. GERDES: Those are the individual strips.

MR. SCHECK: And did you compile an analysis of runs, all the strips in a day, to see whether or not there was a definite contaminant on a run that didn