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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Thompson, Mr. Scheck, Mr. Blasier. The People are represented by Mr. Clarke and Mr. Darden. Anything we need to take up before we begin? Mr. Thompson.

MR. THOMPSON: The Prosecution asked for discovery that Dr. Gerdes filed with the national grant program for the national institute of standards and technology. We have received from Dr. Gerdes' lab a copy of that grant proposal; however, there are serious concerns here about valuable proprietary information contained in this proposal. This is a proposal for a highly competitive U.S. government technology grant. The United States government found this proposal sufficiently promising with regard to the development of economically valuable new biotechnology that they awarded Dr. Gerdes and his laboratory 1.7 million dollars to pursue it. However, the technology has not yet been developed. His laboratory has invested a considerable amount of time and money into developing this valuable technology and they have proprietary rights to it; therefore, we are extremely concerned about the public release of this information.

THE COURT: Counsel, what I'm going to do is I'm going to direct that no copies are made of this proposal, that it remain here in the custody of the clerk, be available for inspection by counsel for either party, and that will be before any cross-examination goes into it we, will have a side bar to determine whether or not that is an appropriate area of cross-examination.

MR. THOMPSON: That sounds quite acceptable, your Honor.

THE COURT: And that at the conclusion of Dr. Gerdes' testimony the copy we have will be returned to him.

MR. THOMPSON: That's fine, your Honor. Shall I give the copy to the clerk then?

THE COURT: Please. Mr. Clarke, have you had the opportunity to look at this?

MR. CLARKE: I have not.

THE COURT: All right.

MR. CLARKE: Just one request and that is could we simply be able to read it upstairs. I expect it is lengthy and detailed.

THE COURT: (Shakes head from side to side.)

MR. CLARKE: All right.

THE COURT: Okay.

MR. THOMPSON: Thank you, your Honor.

THE COURT: All right. Deputy Magnera, let's have the jury, please.

(Brief pause.)

(A conference was held at the bench, not reported.)

(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, everybody.

THE JURY: Good morning.

THE COURT: All right. Dr. Gerdes, would you resume the witness stand, please.

John Gerdes, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: All right. The record should reflect that Dr. John Gerdes is on the witness stand undergoing direct examination by Mr. Scheck. Good morning again, doctor.

DR. GERDES: Good morning.

THE COURT: Doctor, sir, you are reminded you are still under oath. And Mr. Scheck, you may conclude your direct examination.

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

THE JURY: Good morning.

DIRECT EXAMINATION (RESUMED) BY MR. SCHECK

MR. SCHECK: Dr. Gerdes, just a few more questions. First, I believe we discussed yesterday in your work with transplantation and infectious diseases you mentioned that there are policies, protocol, rules with respect to maintaining the integrity of samples when they are received in the laboratory; is that correct?

DR. GERDES: That's correct.

MR. SCHECK: You said in the paternity testing area there are chain of custody procedures?

DR. GERDES: Yes.

MR. SCHECK: And what are those?

DR. GERDES: Well, they are safeguards to ensure that we are analyzing the appropriate individuals in that case, and basically it simply means that every person that handles the specimen has to record that fact or document that fact so that you can follow the history of that particular specimen and know exactly where it came from and who and at what time that was handled, who handled the specimen, when it was handled, how it was transported to the laboratory and in what state did it arrive and all of the details that would be important to guarantee that that particular specimen is indeed what it is supposed to be and that there was no possible chance that that specimen might have been tampered with or in some way compromised.

MR. SCHECK: Now, Dr. Gerdes, even in the transplant work, if you receive a tube of blood that a doctor says is a tube from a particular person, but it doesn't have certain kind of proper documentation, what are the rules and procedures in regard to that?

DR. GERDES: Well, according to CLIA `88, which is the Law in a Clinical Laboratory, if a specimen arrives at the laboratory without appropriate--an appropriate request form specifically stating what test is to be done and if the specimen has not been labeled with the patient's name, we cannot analyze it.

MR. SCHECK: What do you do?

DR. GERDES: Well, you call the physician and you tell them that an error has been made and have them redraw a new specimen.

MR. SCHECK: What is the practice and procedure with regard to the receipt of specimens in packaging that shows evidence of having been opened and then repackaged?

DR. GERDES: Again, that is a break in the chain of custody. That item could not be analyzed. We would inform the individuals, the parties involved and we would start over.

MR. SCHECK: So in other words, the history of the handling of the sample is a lab question, a scientific issue?

DR. GERDES: Yes.

MR. SCHECK: Doctor, do you have an opinion about the reliability of DNA testing results on samples recovered from the Bronco console on August 26th, that is, samples 303, 304 and 305?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: All right. Have you examined the results and the history of the samples 303, 304 and 305?

DR. GERDES: I have.

MR. SCHECK: All right. And do you have an opinion with respect to the--those results.

MR. CLARKE: Same objection.

THE COURT: Sustained. I'm more concerned about the history aspect.

MR. SCHECK: Oh, are you familiar with the testimony and the documentation as to what happened to the Bronco after samples were first collected on June 14th?

DR. GERDES: Yes.

MR. SCHECK: All right. And are you aware of what happened to the Bronco and the console, where it went, what procedures were involved in maintaining its custody until the time it was then again sampled on August 26th?

DR. GERDES: Yes.

MR. SCHECK: Now, do you have an opinion about the integrity and reliability of the DNA test results on the sample recovered from the Bronco console on August 26th, 303, 304 and 305?

MR. CLARKE: Objection, no foundation, beyond the expertise of the witness.

THE COURT: Overruled.

DR. GERDES: Yes.

MR. SCHECK: And what is it?

DR. GERDES: Umm, the--those samples have obviously the--as I just described, the chain of custody aspect of those samples has been broken. We don't know what or at least we can't be assured that something or someone or a number of individuals might not have been in there. In fact, there is testimony that I have read that states that that in fact happened.

MR. CLARKE: Well, excuse me. Objection, move to strike, no foundation.

THE COURT: Yes. That part of the answer will be stricken.

MR. SCHECK: All right. Based on just the integrity of the sample handling of the Bronco, do you have any confidence in the results of those--from a scientific point of view, in the results of those tests?

DR. GERDES: No, you can--

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

MR. CLARKE: Beyond the witness' expertise.

THE COURT: Overruled.

DR. GERDES: You can no longer have any scientific confidence in that.

MR. SCHECK: Now, there was a question I forgot to ask you yesterday, and I apologies for it, concerning the charts and the data that you put together in your analysis of strips, runs and extraction controls and negative controls in the period of May through July of 1994, and the overall charts, and that is, did you include, in your analysis, the strips and two runs that were involved in this case?

DR. GERDES: No, I didn't.

MR. SCHECK: Why not?

DR. GERDES: Well, the purpose of that analysis was to assess the level of contamination before and after this specific incident case and so that is why I did it that way.

MR. SCHECK: I have some additional questions now about RFLP results. I believe you gave us yesterday, concerning your views of the RFLP result on LAPD item 52 and--which was analyzed on the morning of June 14th by Mr. Yamauchi, correct?

DR. GERDES: Yes, yes.

MR. SCHECK: All right. And you've expressed your opinion, your concerns, with respect to that RFLP result?

DR. GERDES: In terms of cross-contamination, yes.

MR. SCHECK: All right.

DR. GERDES: It could be cross-contaminated.

MR. SCHECK: Now, let me ask you about some other RFLP results. Do you feel that cross-contamination could have accounted for the RFLP results consistent with Ronald Goldman and Nicole Brown Simpson on the Rockingham glove?

MR. CLARKE: Objection, no foundation. Also leading.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: Did--have you looked through the amount of DNA and the paperwork on the analysis performed on the RFLP tests done on the Rockingham glove with respect to results consistent with Ronald Goldman and Nicole Brown Simpson?

DR. GERDES: I have.

MR. SCHECK: All right. Have you actually seen those autorads?

DR. GERDES: Yes.

MR. SCHECK: Do you feel that cross-contamination could have accounted for those RFLP results?

MR. CLARKE: Objection, no foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Well, do you question those RFLP results on the ground of cross-contamination?

MR. CLARKE: Same objection, also leading.

THE COURT: Sustained.

MR. SCHECK: All right. What is your view of those RFLP results?

MR. CLARKE: Same objection.

THE COURT: Sustained. Foundation here, counsel.

MR. SCHECK: Have you reviewed the data on those results?

DR. GERDES: Yes, I have.

MR. SCHECK: All right. Do you feel--what is your opinion in terms of the issue of cross-contamination and those results?

MR. CLARKE: Same objection, foundational, also calls for speculation.

THE COURT: Sustained on foundation.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Given the amounts of DNA in those samples do you have an opinion about whether or not cross-contamination could have accounted for those results?

MR. CLARKE: Objection, foundation.

THE COURT: Sustained.

MR. SCHECK: Have you looked at the amounts of--have you reviewed the amounts of DNA that were used for the RFLP tests in those samples?

DR. GERDES: Yes.

MR. SCHECK: All right. Have you reviewed the paperwork and the procedures used by the laboratories in testing those samples?

DR. GERDES: Yes.

MR. SCHECK: All right. Do you have an opinion as to whether or not--what is your opinion with respect to the issue of cross-contamination in those RFLP results?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: Your Honor, I'm confused.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: In your mind, Dr. Gerdes, does the amount of DNA that is used with respect to--that is involved in an RFLP test in the sample handling procedures that precede it have a bearing on the issue of cross-contamination and RFLP results?

MR. CLARKE: Objection, leading.

THE COURT: Overruled.

DR. GERDES: Yes, it does.

MR. SCHECK: All right. What is your view with respect to the RFLP test results consistent with the genotypes of Ronald Goldman and Nicole Brown Simpson on the Rockingham glove?

MR. CLARKE: Objection, no foundation.

THE COURT: Sustained.

MR. SCHECK: Your Honor, may we approach?

THE COURT: Proceed.

MR. SCHECK: Are you questioning those results?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. SCHECK: I don't know.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Do you have experience doing RFLP testing in your laboratory?

DR. GERDES: Yes, I do.

MR. SCHECK: All right. Do you regard the analysis of--do you take the analysis of different RFLP test results separate and independently? In other words, would you evaluate the RFLP--have you evaluated separately the RFLP results in this case on each sample individually?

DR. GERDES: Yes.

MR. SCHECK: And you have different opinions about different ones of those RFLP results?

DR. GERDES: I do.

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

MR. SCHECK: All right. Can I ask you now do you have--what is your view with respect to the issue of cross-contamination and the RFLP results on the Rockingham glove, those that are consistent with Ronald Goldman and Nicole Brown Simpson?

MR. CLARKE: Same objection.

THE COURT: Sustained. Let me see counsel over at the side bar with the court reporter, please.

MR. SCHECK: Thank you, your Honor.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the side bar. I'm sustaining the objections on foundational basis. You are asking--Mr. Thompson, is there a reason you are here?

MR. SCHECK: No, no, no.

MR. THOMPSON: I'm sorry.

THE COURT: I'm sustaining these objections on the foundational basis because I haven't heard any specifics about him evaluating the handling of this particular glove, any of those particular issues. When you raise the issue of cross-contamination he can say, hey, no, there is a small RFLP. We are at the bottom threshold of DNA doing this RFLP testing on this particular run, correct.

MR. SCHECK: Your Honor, if I may make this offer first. I think he has discussed the handling of the Rockingham glove and what--just so you know, he is going to testify that he doesn't question this result. He is going to testify to a whole series of results that he doesn't question. That is where it is coming from, after reviewing the paperwork and the rest of it. So I'm sort of puzzled by Mr. Clarke's objections.

THE COURT: But where I'm concerned is I haven't heard him say I evaluated how this thing--how this particular glove was handled. I haven't heard that.

MR. SCHECK: I thought I had previously with--this is the same glove Mr. Yamauchi handled.

THE COURT: I understand, but I haven't heard--

MR. SCHECK: I know.

(The following proceedings were held in open court:)

MR. SCHECK: As part of your analysis of the RFLP results have you considered and evaluated the sample handling procedures with respect to, for example, the Rockingham glove?

DR. GERDES: Yes.

MR. SCHECK: All right. Now, what is your view with respect to whether or not cross-contamination could have accounted for the RFLP results consistent with Ronald Goldman and Nicole Brown Simpson on the Rockingham glove.

MR. CLARKE: Objection, no foundation.

THE COURT: Overruled.

DR. GERDES: In that particular case there is an adequate amount of DNA; it could not have been explained by cross-contamination.

MR. SCHECK: All right. Now, let me ask you with respect to the RFLP results obtained by the Department of Justice and Cellmark on the sock, particularly the cut-out section, 13-A, in terms of your review of the laboratory notes and how those samples were handled and the RFLP test results, do you believe cross-contamination could account for the RFLP results obtained on the sock?

DR. GERDES: No. There is adequate amount of DNA. Cross-contamination could not have accounted for that particular RFLP.

MR. SCHECK: All right. Now, do you know how the--how blood got on that sock?

DR. GERDES: No, I don't.

MR. SCHECK: All right. Do you believe that cross-contamination--have you reviewed the RFLP result on the item--LAPD item 117, a bloodstain collected from the back gate at Bundy on July 3rd?

DR. GERDES: Yes.

MR. SCHECK: All right. In terms of the way that sample was handled, what samples it was handled with in terms of reference tubes and other matters and amounts of DNA, is there anything that leads you to believe that cross-contamination could account for that RFLP result?

DR. GERDES: On the back gate?

MR. SCHECK: Yes.

DR. GERDES: No. There is an adequate amount of DNA.

MR. SCHECK: Have you--so you are distinguishing between those results and the RFLP result on item no. 52?

DR. GERDES: Yes. Item 52 has significantly less DNA. It has only 25 nanograms of DNA and that certainly could have occurred, especially in the manner in which these samples were handled. That particular item could have occurred due to cross-contamination.

MR. SCHECK: And the events you described to us yesterday between --

DR. GERDES: Yes.

MR. SCHECK: --9:00 and 11:20?

DR. GERDES: That's correct.

MR. SCHECK: On June 14th?

DR. GERDES: Correct.

MR. SCHECK: Now, Dr. Gerdes, do you consider--have you heard paternity testing referred to as forensic science?

DR. GERDES: Some people refer to it as that.

MR. SCHECK: Because forensic, I suppose, has a definition that if it relates to court sometimes it is called forensic, quote-unquote?

DR. GERDES: Yes. Some people define--forensics could be defined as a situation in which science and the practice of science interacts with law.

MR. SCHECK: All right. Now, when we were discussing yesterday the contrast between clinical applications and forensics, did you take forensic to mean having to do with DNA--DNA--the application of DNA technology to crime scene samples?

DR. GERDES: I believe that is what we were talking about at that time.

MR. SCHECK: And so with that definition of forensic in mind, let me ask you these questions: First of all, in terms of your primary activity, are you a forensic scientist?

DR. GERDES: I don't consider myself a forensic scientist, no.

MR. SCHECK: All right. Have you ever gone to a crime scene and done collections?

DR. GERDES: No, I haven't.

MR. SCHECK: Does your lab do forensic cases, that is, samples that are taken from crime scenes?

DR. GERDES: No, we don't.

MR. SCHECK: You do paternity testing?

DR. GERDES: We do paternity testing.

MR. SCHECK: All right. Do you attend forensic meetings with members of police labs, government labs, et cetera?

DR. GERDES: No.

MR. SCHECK: Based on your background as a microbiologist, a molecular biologist and a DNA lab director doing the kind of things you have described to the jury, do you feel you are able to assess the sample handling techniques, the methodology and the testing processes of forensic DNA laboratories that you've reviewed in this case, and I think you told us the 23 others that you reviewed previously?

DR. GERDES: Yes, I believe I can.

MR. SCHECK: All right. And you are familiar with their protocols and their practices?

DR. GERDES: I am.

MR. SCHECK: Now, this report, "DNA technology in forensic science"--

DR. GERDES: Yes.

MR. SCHECK: --this is by the national research council of the national academy of sciences?

DR. GERDES: That's correct.

MR. SCHECK: All right. And was this an analysis of the application of DNA technology to forensics in the sense that we have been just discussing it here, analysis of crime scene samples and the like?

DR. GERDES: It was.

MR. SCHECK: All right. And do you support the recommendations and analyses in this report?

DR. GERDES: I do.

MR. CLARKE: Objection, calls for hearsay.

THE COURT: Overruled.

MR. SCHECK: Now, are you familiar with the members of this committee and who they are?

DR. GERDES: I don't know them personally, but I'm familiar with their credentials.

MR. SCHECK: Have some of them included forensic scientists?

DR. GERDES: I believe there are perhaps three individuals there who were forensic scientists, yes.

MR. SCHECK: Including Dr. Henry Lee?

DR. GERDES: Yes, Dr. Lee is one of those.

MR. SCHECK: I'm sorry. Now, the chairman of this committee, Dr. Victor McKusick, is a forensic scientist?

DR. GERDES: No, he is not.

MR. SCHECK: But a molecular geneticist and biologist?

DR. GERDES: That's correct.

MR. SCHECK: Dr. Haig Kazazian, what field is he in?

DR. GERDES: I believe it is in genetics.

MR. SCHECK: And the medical applications of DNA technology?

DR. GERDES: Yes.

MR. SCHECK: Dr. Mary-Claire King, is she a forensic scientist?

DR. GERDES: No.

MR. SCHECK: But a molecular geneticist, population geneticist?

DR. GERDES: Molecular biologist, yes.

THE COURT: Gentleman, you are going to have to stop talking at the same time.

MR. SCHECK: That is really my fault, your Honor. I'm really trampling on his answers.

MR. SCHECK: Dr. Eric Lander is a molecular geneticist and population geneticist?

DR. GERDES: Yes.

MR. SCHECK: All right. Is he is a forensic scientist?

DR. GERDES: No.

MR. SCHECK: Dr. Thomas G. Marr of the cold spring harbor laboratory, is he a molecular geneticist and biologist?

DR. GERDES: Yes.

MR. SCHECK: Is he a forensic scientist?

DR. GERDES: No.

MR. SCHECK: Now, one last series of questions, doctor. We discussed the issue of proficiency testing a little bit earlier. Are you familiar with the discussion of proficiency testing in the national research council report?

DR. GERDES: I am.

MR. SCHECK: Do you support those conclusions?

DR. GERDES: Yes.

MR. SCHECK: All right. I would like to direct your attention to a few--would the Court like to see them first before I read them?

THE COURT: What page?

MR. CLARKE: Could we just have a reference first--

MR. SCHECK: Sure.

MR. CLARKE: --before any questioning.

(Brief pause.)

MR. SCHECK: Starting at page 89, the second and third paragraphs.

MR. CLARKE: Could I just have a moment, your Honor?

(Brief pause.)

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: Mr. Clarke.

MR. CLARKE: Yes. May we be heard?

THE COURT: Yes.

(The following proceedings were held at the bench:)

MR. SCHECK: Actually maybe I can make a suggestion that would obviate some problems, because I had some concerns about at the end of the second paragraph--at the end of the second paragraph--

THE COURT: The one that I have highlighted?

MR. SCHECK: It says: "Nevertheless, a higher error rate should be a matter of concern," and the next thing it says, "To judges and juries." I would propose to just read "A matter of concern" and get rid of the "Judges and juries" because I think that is arguably a legal conclusion.

THE COURT: That is a legal conclusion.

MR. SCHECK: That--

MR. CLARKE: I'm confused. I thought we were, first of all, talking about paragraphs 2 and 3.

MR. SCHECK: Starting "Laboratory errors happen," but I want to eliminate the "To judges and juries" because I think that may invade the province as more of a policy statement and the other I think is more restricted as a scientific statement.

MR. CLARKE: Both these paragraphs are very argumentative and they are seeking really to invade the province of the jury in this case period.

MR. SCHECK: I would submit that these are--

THE COURT: Is there a particular reason he can't say this just as his own personal opinion?

MR. SCHECK: Well, I think the whole point of it is just as in terms of the way Mr. Kelberg, I thought quite adroitly, used quotes from various recognized and authoritative texts, I truly anticipate that Mr. Clarke is going to go on at some length that he is not a forensic scientist and that the conclusions that he reaches that are consistent--these opinions--

THE COURT: Uh-huh.

MR. SCHECK: --can't be trusted because--

THE COURT: Well, I don't think he disputes anything that is in these two--

MR. SCHECK: I think there will be disputes.

MR. CLARKE: I think the paragraphs are very argumentative and they really are directed toward judges and juries, as opposed to scientists.

MR. SCHECK: I don't think that is the case at all. When he talks about error rates and the need for regular proficiency testing, that is--that is the issue, and the other issue has to do with error rates and the kind of samples that are used.

THE COURT: All right.

MR. SCHECK: So those are two things. I just want to eliminate this one because I think it--

THE COURT: I will overrule the objection and I will allow you to use it, but I want you to take out the entire sentence, not just the clause.

MR. SCHECK: All right.

MR. CLARKE: May I make one comment?

THE COURT: Yes.

MR. CLARKE: That is exactly the type of hearsay in these instances with these three photographs that we talk about inadmissible hearsay, clearly the opinions of these authors, and they are made in an argumentative social science context, as opposed to a scientific context.

THE COURT: All right. It is overruled.

(The following proceedings were held in open court:)

MR. SCHECK: Doctor, I'm going to start reading a paragraph that is at page 89 of the NRC report and ask is that your view of it and ask to you explain it.

MR. CLARKE: Objection, hearsay as phrased.

THE COURT: Overruled.

MR. SCHECK: "Laboratory errors happen even in the best laboratories and even when the analyst is certain that every precaution against error has been taken. It is important to recognize that laboratory errors on proficiency tests do not necessarily reflect permanent probabilities of false positives or false negatives results. One purpose of regular proficiency testing under standard case conditions is to evaluate whether and how laboratories have taken corrective action to reduce errors. Reported errors should be based on proficiency tests that are truly representative of case materials with respect to sample quality, accompanying description, et cetera. Tests based on pure blood samples would probably underestimate error rate and tests based primarily on rare and extremely difficult samples, which might be useful for improving practice, would probably overestimate. Although the California Association of Crime Lab Director proficiency tests was less than ideal, being opened rather than blind and not requiring reporting of size measurements, the materials appeared to have been representative of standard case work."

MR. SCHECK: Now, do you agree with that judgment of the national research council?

DR. GERDES: I do.

MR. SCHECK: Do you agree--why is it important to have proficiency tests on samples that are representative of case work?

DR. GERDES: Well, I think as I tried to explain in that paragraph, you want to make the tests at the same difficulty as what you are going to try and analyze, so if you make the test too easy, you don't really get an accurate reflection of what your error rate is, how often you might make a mistake. So you want to try and mimic exactly the type of thing you are going to analyze as possible.

MR. SCHECK: And in terms of having a blind test administered by an outside agency, why is that important?

DR. GERDES: Well, if you know you are being tested, you just naturally try a little harder, and if you--so both in the clinical field--in the clinical field on our proficiency tests we have to state--I even have to sign that I'm going to handle the sample the same way I would handle any other sample that came in from a patient and you just put it in with that batch that day and run it and the same technician runs it so you don't have the hot shot in the lab that is better at this do it. So that way you have an accurate reflection of exactly how many errors might occur under your standard operating procedures.

MR. SCHECK: Now, Dr. Gerdes, you mentioned that the national marrow donor program--that is an external blind?

DR. GERDES: Yes.

MR. SCHECK: Are all the proficiency tests that your lab undergoes from the various proficiency agencies, are all of those external blinds?

DR. GERDES: No, they are not.

MR. SCHECK: Some of them are open tests?

DR. GERDES: Yes.

MR. SCHECK: Now, in terms of the proficiency tests just in terms of the samples that LAPD ran, were those, in your judgment, representative of the kind of samples that were being analyzed in this case?

DR. GERDES: You are referring to the validation specimens?

MR. SCHECK: Well, I'm actually referring to--well, both the validation specimens and the CTS and CAP proficiency tests?

DR. GERDES: All of those specimens represented specimens with adequate DNA. They weren't degraded, they weren't aged or they didn't mimic the crime scene specimens in any way.

MR. SCHECK: And this case involves mixtures of bloodstains, some of which are degraded?

DR. GERDES: Yes.

MR. SCHECK: And were they, in any of the labs that you have looked at DOJ, the tests they took, Cellmark, LAPD, were they doing proficiency tests on those kind of sample?

DR. GERDES: No.

MR. SCHECK: Your Honor, I have no further questions.

THE COURT: Mr. Clarke.

MR. CLARKE: Yes, your Honor. May we take a break? Would that be possible, to gather materials?

THE COURT: How long do you need?

MR. CLARKE: I think it will really be more up to the Defense how long they feel they need to review some materials.

THE COURT: All right. All right. Ladies and gentlemen, we will take an early break at this point. Remember all of my admonitions to you. And hopefully we will get back to you in about twenty minutes. All right. Ask you to step back into the jury room, please.

(The jury was excused and the following proceedings were held in open court:)

THE COURT: All right. Doctor, you can step down.

DR. GERDES: Thank you.

THE COURT: All right. Counsel, we will stand in recess. Mr. Clarke, I take it you have some material you want to show?

MR. CLARKE: Yes.

THE COURT: Share?

MR. CLARKE: Yes.

THE COURT: All right. Let me know when you are ready.

MR. CLARKE: Thank you.

(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. Mr. Scheck.

MR. SCHECK: Your Honor, I don't know how Mr. Clarke wants to proceed in terms of itemizing these things, but there is one chart entitled, "Los Angeles Police Department PCR DQ-Alpha testing controls 1 through 6." I have no objection to that. There is another chart--where is the one with the number of samples?

MR. CLARKE: Your Honor, if we could, if we are going to go through these, may I ask the Court that the witness be excused?

THE COURT: Yes.

MR. CLARKE: Thank you.

THE COURT: Just wait outside, doctor.

(The witness exited the courtroom.)

MR. SCHECK: There is another chart with a piece of paper which lists the number of samples and controls in this case. I have no objection to that. Actually Mr. Clarke allowed Dr. Gerdes to look at that so he could just count them up and make sure they were correct. There are a series of quotations in slide form from the national research council and I think on just about everyone of them I have an objection that they are taken out of context. That is to say, every single one of them it is sort of on the one hand, on the other hand, and they only give the one hand that favors them and they will leave out the next paragraph or they will leave out sentences. And I don't know how the Court wants to deal with that, one by one as they arise in the context of the cross-examination or right now? There is a whole series of those.

THE COURT: Well, counsel, I think I have allowed you pretty free access to the NRC report, so my inclination is to allow them to point out whatever discrepancies they have, and if you feel that under 356 that there is a larger context, I will allow you to bring that in.

MR. SCHECK: Maybe we could just deal with it on a case by case basis and save time, because that is really the nature of the objection in each instance.

THE COURT: Okay.

MR. SCHECK: There is another two--two pages called "DNA testing PCR and RFLP consistent results" wherein they list--all they say is "Driveway, foyer bathroom, RFLP no. 12, PCR no. 12, no. 6, no. 7, no. 14," then they do the same thing for the glove, the socks, the walkway, Goldman's boot. And I think that this is very misleading because it doesn't even indicate what the results are, who it is consistent with and where--and what labs did it, et cetera, but the no. 1 objection is it doesn't indicate who--

THE COURT: What it is, okay.

MR. SCHECK: And so I have a problem with that and that is similar to objections that I have--I think the only thing left, woody, is the boards, the two boards. Maybe we should pull those out.

(Brief pause.)

MR. SCHECK: One board perhaps we should take up first called "Concordance Cellmark DOJ."

THE COURT: Concordance?

MR. SCHECK: Yes, yes. Given the care that we have taken with these words on boards--I don't like the word "Concordance" in terms of it being argumentative, but that is not really the thrust of the objection. I think that the real problem here is again all that is being done is listing items, listing probes, listing systems, and it is not informative as to what is consistent, what isn't consistent. There are tremendous complications here. We've had testimony, for example, on the steering wheel, about Cellmark calling this 1.1, 1.2 and 4 as a mixture, and the Department of Justice took a very hedged position, I will put it that way, on this issue. So I think that that is all very misleading and we have result boards that lay out--all this out and I think this is unfairly argumentative and leaves out too much information and is really final argument and misleading.

THE COURT: Mr. Wooden, is there another board that goes with this?

MR. SCHECK: There is another board.

(Brief pause.)

THE COURT: All right. This is entitled "Results of RFLP DNA analysis."

MR. SCHECK: Yes. And again this is something of an improvement insofar as it at least lists the people involved, where there is consistencies, but again it seems to me that--in fact, I think this precise board was once ruled upon by the Court in the context of the testimony of the other witnesses. I think I may be wrong, but I think it was a similar board.

THE COURT: No. This is the first time I have seen this one.

MR. SCHECK: There was one that is--just basically is an attempt to group certain RFLP results here, and it just seems to me that we have those result boards and it is going to become unduly confusing. Frankly, there are so many boards with so many results repetitively that I think that it is--it gives the impression of--it becomes cumulative, and I think it is unfair that they can go back to their initial results board which were organized by evidence item and lab and work with that and go through it with the witness so we are dealing with the same set of data that is more complete data than on these boards, and I think that that is an adequate way to do it in terms of presenting this to the jury. And it becomes unduly confusing and cumulative and those are my objections to these boards.

THE COURT: Mr. Clarke.

MR. CLARKE: Yes, your Honor. With respect to both these boards, as well as the two charts that I believe Mr. Scheck addressed, perhaps I can address those four items first. We are in a different setting now than we were when we were examining witnesses as to this issue. This particular witness has called into question a number of items of evidence that have been tested for DNA in this case. He has called them into question by raising the specter of, in particular, cross-contamination. The witness is not present so I will offer to the Court that this witness has repeatedly testified in the past that if you have an RFLP result on a sample that confirms the reliability and validity of a PCR result on the same sample. This board I will--will be in my view extremely important to convey to the trier of fact about what this witness either will concede on the witness stand or will be sought to be impeached by previous testimony, but the role of these RFLP results is absolutely central to the reliability in his opinion of the results in an individual case. Now, the particular board that is up now entitled "Results of RFLP DNA analysis" is a way of presenting that information without having to put six boards up, one by one and having to point out individually what particular sample we are referring to. This places the RFLP results in one location. It is not argumentative. It accurately conveys exactly what the previous testimony has described. With regard to the concordance board, this witness has again opened up the specter of the unreliability of a number of the results in this particular case. One of again this witness' central notions from previous testimony is the importance of replicate testing, testing by more than one laboratory. In this case, as the evidence has already showed, there has been testing by three different laboratories, so this concordance, the consistency in terms of the ultimate results obtained by these various technologies, is again central to demonstrating through this witness the reliability of these results.

MR. SCHECK: May I briefly respond? I think Mr. Clarke's argument proves too much because I think it is quite clear from this witness' testimony that his attack was only on one RFLP result and that is item 52 that was handled in the evidence processing room on June 14th by Mr. Yamauchi under circumstances where he described it to be an unacceptable risk of cross-contamination. That is the only RFLP result that his testimony questioned, and we took all these other ones out, so it seems to me that to bring up a board--there is no--it is obviously cumulative. They should attack--if they want to attack him, they can attack him on that one. He has conceded he doesn't quarrel with the others. But this concordance of Cellmark and DOJ results is highly misleading and totally improper because it conflates results that are not spelled out in terms of the different typings which are at issue here and they don't comport with what Mr. Clarke is saying, and that is, oh, there is an RFLP that confirms a particular PCR-based result, et cetera. So I think that this one is just--there is very little question in my mind that this is highly misleading, argumentative, incomplete and improper, and it oversimplifies the issues here. It doesn't even list included, not included, who this is. I think this concordance board is plainly improper on a whole host of grounds. And as to the RFLP DNA analysis board, it seems to me they can rely on the other one that they already have up there. And his argument admits that what they really want to do is put up a whole series of results which he doesn't question yet another time, when the doctor has come in here and essentially just questioned one RFLP and the circumstance surrounding it. So it seems to me that this argument really admits that the true intention here is to create yet another board in a case of many, many boards to--that would be confusing. And as far as these--that other set of lists--did you take mine? The Court should really see these, I think.

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

MR. SCHECK: Those are again highly misleading. They don't even list who is involved and what the results are.

THE COURT: All right. These are entitled "DNA testing PCR and RFLP consistent results." They have to do with both items from Rockingham and from Bundy. All right. Mr. Scheck, anything else?

MR. SCHECK: (Shakes head from side to side.)

THE COURT: Mr. Scheck, I think you downplay the breadth and scope and effectiveness of your own presentation yesterday. I think you've opened up a whole line of questioning regarding the entire evidence collection process, how it was processed at the LAPD lab and calling into question all of the subsequent results. I agree with you that, for example, the results of RFLP DNA analysis is cumulative in the sense that that information is included on several other boards, but since it compacts all of that information into one board, I find that it is--it serves a relevant purpose and it will save court time to have these two particular large boards here. So I'm going to overrule your objections.

MR. SCHECK: Excuse me. Could I ask the Court to--I understand the Court's ruling with respect to the RFLP DNA analysis board, but I would ask the Court to consider the concordance board because I don't believe the concordance board does that.

THE COURT: No. I think the concordance board, though, shows consistency of results from different laboratories.

MR. SCHECK: No, no, no.

THE COURT: But that is--

MR. SCHECK: This has--this is misleading because take, for example, the--

THE COURT: Counsel, I've heard your argument. I've ruled.

MR. SCHECK: Can I just be heard? There is one thing I left out. I call the Court's attention about the steering wheel.

THE COURT: I've ruled. Counsel, I've ruled. Thank you. Let's have the jury.

MR. CLARKE: Your Honor, I assume there are no objections to the other items that I have displayed to the Defense?

THE COURT: I assume that as well.

MR. SCHECK: Well, what about the--your Honor, what about the--this where they don't even list who it is?

THE COURT: The objection is overruled.

MR. SCHECK: On this?

THE COURT: Yes.

MR. SCHECK: Well, your Honor, they don't even list who is involved. They just have item numbers.

THE COURT: I know, and it is on other items. It is on other pieces of evidence. It is on other displayed boards. I've ruled.

MR. SCHECK: It is repetitive of those other boards.

THE COURT: Counsel, I think I said it now three times.

MR. SCHECK: All right.

THE COURT: Thank you. 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 we have been rejoined by all the members of our jury panel. Dr. John Gerdes is on the witness stand now undergoing cross-examination by Mr. Clarke. Mr. Clarke.

MR. CLARKE: Good morning, ladies and gentlemen.

THE JURY: Good morning.

CROSS-EXAMINATION BY MR. CLARKE

MR. CLARKE: Good morning, Dr. Gerdes.

DR. GERDES: Good morning.

MR. CLARKE: Your Honor, if I may I would like to use People's exhibit 259, the Bronco results board.

THE COURT: Yes. Mr. Wooden.

(Brief pause.)

THE COURT: Where are you going to place the easel?

MR. CLARKE: In the middle spot.

THE COURT: All right.

(Brief pause.)

THE COURT: All right. Dr. Gerdes, you will need to step down to see that.

MR. CLARKE: Thank you, your Honor.

DR. GERDES: (Witness complies.)

MR. CLARKE: Dr. Gerdes, this particular results board, People's exhibit 259, have you had an opportunity to either see this board or a recreation or copy of the board, if you will?

DR. GERDES: I have seen brief--brief glimpses of this on TV coverage. I have not seen a copy in other--any other manner.

MR. CLARKE: All right. I would like to refer your attention, if I could, to what is labeled exhibit no. 30, center console.

THE COURT: Item 30.

MR. CLARKE: I'm sorry, item 30. Thank you, your Honor.

MR. CLARKE: And in particular, there are results from the Department of Justice in both the DQ-Alpha and D1S80 markers; is that right?

DR. GERDES: Yes.

MR. CLARKE: Those results you are familiar with; is that correct?

DR. GERDES: I am familiar with the results, yes.

MR. CLARKE: All right. Is it your testimony, Dr. Gerdes, and are you telling the ladies and gentlemen of this jury, that the DNA in that particular stain could not have come from the Defendant, Mr. Simpson?

DR. GERDES: I am saying that due to the way in which these samples were handled, the testing that was conducted in that lab, subsequent testing in that lab, is a possibility of cross-contamination.

MR. CLARKE: Does a 1.1, 1.2 exclude Mr. Simpson?

DR. GERDES: No, it doesn't.

MR. CLARKE: Does a D1S80 24, 25 exclude Mr. Simpson?

DR. GERDES: No, it doesn't.

MR. CLARKE: Referring you to item no. 31, the center console, are you familiar with the results that were obtained by the Department of Justice as to that stain?

DR. GERDES: Yes.

MR. CLARKE: And results were obtained that included a 1.1, a 1.2 and a weaker 1.3 and 4; is that right?

DR. GERDES: That's correct.

MR. CLARKE: The 1.1, 1.2 does not exclude Mr. Simpson, does it?

DR. GERDES: That's correct.

MR. CLARKE: The 1.3 and 4 does not exclude Mr. Goldman; is that right?

DR. GERDES: That's correct.

MR. CLARKE: With regard to the D1S80 results at 24 and 25, those are consistent and could have originated from Mr. Simpson; is that right?

DR. GERDES: That's correct.

MR. CLARKE: And the 24 could have originated from Mr. Goldman; is that right?

DR. GERDES: That's correct.

MR. CLARKE: All right. Thank you. That is it for the board at this moment, your Honor.

THE COURT: All right. Can Dr. Gerdes take his seat back or are you going to need anything else? Mr. Clarke?

MR. CLARKE: I'm sorry?

THE COURT: Is that the only easel we are going to use right now?

MR. CLARKE: Yes.

THE COURT: Why don't we let down--Miss Clark, why don't you let Mr. Wooden handle that.

MS. CLARK: You are right. Okay.

THE COURT: Thank you. I recollect we almost killed a juror the last time.

(Brief pause.)

THE COURT: Which is why we moved juror no. 1, if you recollect.

MS. CLARK: Yes, absolutely, your Honor.

THE COURT: All right. Thank you, Mr. Wooden. Mr. Clarke.

MR. CLARKE: Thank you, your Honor.

MR. CLARKE: Dr. Gerdes, you described having visited the Department of Justice DNA laboratory in the past, correct?

DR. GERDES: That's correct.

MR. CLARKE: And I believe you described for this case you visited that laboratory twice?

DR. GERDES: The Department of Justice?

MR. CLARKE: Yes.

DR. GERDES: No.

MR. CLARKE: How many times--

DR. GERDES: Once in conjunction with this case and once in conjunction with a previous case.

MR. CLARKE: You have visited the Department of Justice laboratory twice, correct?

DR. GERDES: Correct.

MR. CLARKE: With regard to the Department of Justice, they have a one-way flow of evidence; is that right?

DR. GERDES: Yes, they do.

MR. CLARKE: And I'm referring to evidence flow for purposes of PCR typing?

DR. GERDES: Yes.

MR. CLARKE: You described yesterday that in your opinion evidence at the Los Angeles Police Department was brought back following amplification into the same area that it started out in prior to or at the time of extraction, correct?

MR. SCHECK: Objection, misstates the testimony.

THE COURT: Sustained. He just said "Area."

MR. CLARKE: You testified yesterday that following amplification of DNA, amplified DNA, that is, was brought back to the Los Angeles Police Department in the same area, correct?

MR. SCHECK: Objection, again. Misstates the testimony.

THE COURT: Overruled.

DR. GERDES: I stated that it was brought back to that same location. It is not specifically the same room, but it is the same location.

MR. CLARKE: Okay. So it is not brought back to the same room; isn't that correct?

DR. GERDES: That's correct.

MR. CLARKE: You have been to the Department of Justice?

DR. GERDES: Yes.

MR. CLARKE: When they are done amplifying DNA, where do they take it?

DR. GERDES: It remains in the amplification room.

MR. CLARKE: Where is the amplification room in relationship to the extraction room?

DR. GERDES: I believe the extraction room is in a--is down a hall and in a large room near the entrance of the building and the amplification room would be a different room. You know, basically in the same building, though.

MR. CLARKE: Okay. What are they separated by? How many feet, approximately, Department of Justice?

DR. GERDES: If I recall correctly, the hall would be fifty to a hundred feet perhaps.

MR. CLARKE: As far as the Los Angeles Police Department, you took a tour of that lab, correct?

DR. GERDES: Yes.

MR. CLARKE: I'm sorry, your Honor. I do have one more exhibit I would like to use, the photo board which I believe is exhibit 281.

THE COURT: I knew it.

(Brief pause.)

THE COURT: Mr. Wooden, when you bring that one up, can you just show it briefly to counsel, so they can familiarize themselves with what it is.

MR. SCHECK: I used this. No problem.

THE COURT: Yes. All right. We have seen that one before yesterday. Mr. Scheck, your client wants to see that.

(Brief pause.)

THE COURT: All right. Proceed.

MR. CLARKE: Now, Dr. Gerdes, if I could ask you to step down from the witness stand and I'm going to refer you to what are the three photographs at the bottom of the diagram that are labeled "Piper Tech product gel electrophoresis."

DR. GERDES: Yes.

MR. CLARKE: In your opinion is that the same area as DNA extraction is conducted at Piper Tech as reflected in the top three photographs?

DR. GERDES: It is in the same building. It is not the exact same room.

MR. CLARKE: What separates those two areas?

DR. GERDES: There is a hallway of--I don't know how long. I don't recall. Fifty feet perhaps.

MR. CLARKE: There is more than a hallway, isn't there?

DR. GERDES: Well, there are doors into each of these labs as well.

MR. CLARKE: Aren't they separate secured rooms?

DR. GERDES: I believe they are separate rooms, yes.

MR. CLARKE: In your opinion is that the same area, that is the product gel electrophoresis area, as the extraction area?

DR. GERDES: It is--

MR. SCHECK: Objection, asked and answered.

THE COURT: Overruled.

DR. GERDES: It is not the same area.

MR. CLARKE: All right. Thank you. That is sufficient with that board.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: So Dr. Gerdes, when you testified yesterday that that material was brought back to the same area, were you incorrect?

MR. SCHECK: Objection again, misstates the testimony.

THE COURT: Overruled.

DR. GERDES: I don't believe so because there is another aspect that we didn't really specifically go into because I didn't want to go into a lot of detail, but at that amplification room at Piper or at Parker, excuse me, that is where they autoclave all their solutions and it is maybe five feet from the area where the amplification room is from--just across a very small little hallway.

MR. CLARKE: Objection, move to strike, your Honor, nonresponsive.

THE COURT: Sustained. Ask the question again.

MR. CLARKE: Thank you, your Honor.

MR. CLARKE: Yesterday you described these materials as being brought back to the same area at Piper Tech, correct?

DR. GERDES: Yes.

MR. CLARKE: Today you have conceded that in fact those areas, that is, the extraction room and the product gel electrophoresis room, are not the same area, correct?

DR. GERDES: They are not the same room.

MR. CLARKE: Well, they are not the same area, are they?

DR. GERDES: I guess not.

MR. CLARKE: Now, in your opinion you have had contact with work done by Gary Sims at the Department of Justice; is that right?

DR. GERDES: Yes, I have.

MR. CLARKE: And in fact you have reviewed, not only as a result of this case, but as a result of at least one other case, work done by Gary Sims, correct?

DR. GERDES: Yes.

MR. CLARKE: That has included work done using PCR DQ-Alpha typing?

DR. GERDES: That's correct.

MR. CLARKE: That work--I'm sorry. The work that you reviewed has included work that included PCR D1S80 typing, correct?

DR. GERDES: That's correct.

MR. CLARKE: It is true, is it not, that in your opinion Gary Sims is a very careful analyst?

DR. GERDES: I consider him such, yes.

MR. CLARKE: With regard to actually performing forensic DQ-Alpha analysis as well as D1S80 analysis, do you believe you are more qualified than Mr. Simpson to conduct that testing?

DR. GERDES: I don't think there is a--it wouldn't be difficult for me to do that test. I don't think that either one of us would be more qualified than the other.

MR. CLARKE: Are you familiar with the experience that Mr. Sims has in conducting PCR typing on forensic samples?

DR. GERDES: Yes.

MR. CLARKE: That is a substantial amount of experience, isn't it?

DR. GERDES: Yes.

MR. CLARKE: How many times have you conducted a PCR analysis on evidentiary materials, such as in this case?

DR. GERDES: We don't do PCR on evidentiary material.

MR. CLARKE: Incidentally, with regard to the Department of Justice, it is your opinion, is it not, that they have an excellent handle on contamination as far as their PCR testing?

DR. GERDES: It is my opinion that every PCR lab has a problem. I feel that they do an adequate job of attempting to limit that in their lab.

MR. CLARKE: Haven't you previously testified that they have done an excellent job?

DR. GERDES: Yes, I believe they have.

MR. CLARKE: Now, I would like to turn your attention, if I could, to your employment before you came to work for, and can we call it IAD?

DR. GERDES: Yes.

MR. CLARKE: That is Immunological Associates of Denver?

DR. GERDES: That's correct.

MR. CLARKE: That included your being a community college teacher; is that right?

DR. GERDES: Yes. There was a period of time when I taught at community college in Maui.

MR. CLARKE: For how long approximately?

DR. GERDES: Five years.

MR. CLARKE: And as part of that teaching did you conduct instruction by television in the areas of physiology, anatomy and biochemistry?

DR. GERDES: I taught a class of anatomy and physiology on television. The biochemistry was not a TV class, but I taught biochemistry.

MR. CLARKE: Referring to the TV teaching, you would be in front of a camera and students could watch your teaching, what, in other parts of the Hawaiian island?

DR. GERDES: That's correct.

MR. CLARKE: After that position did you go to work for a pineapple company?

DR. GERDES: It was pretty much at the same time. I did.

MR. CLARKE: And for what period of time?

DR. GERDES: I believe that was between eight months to a year.

MR. CLARKE: Following that where were you employed by?

DR. GERDES: I was employed by the veterans administration in Denver, Colorado, at the--in charge of the MS Center.

MR. CLARKE: And then when did you begin at IAD?

DR. GERDES: In 1988.

MR. CLARKE: Now, Dr. Gerdes, shifting your attention--and you described the fact yesterday that you have written in the area of DNA; is that right?

DR. GERDES: I--I have publications with regard to various types of DNA analysis, yes.

MR. CLARKE: All right. Could you describe for the jury how many of those publications are about forensic stain analysis?

DR. GERDES: None of them.

MR. CLARKE: Do you have any publication that deals with the area of PCR contamination in forensics?

DR. GERDES: No.

MR. CLARKE: Have you written any publication about the unsuitability or why PCR shouldn't be used in forensics?

DR. GERDES: Well, I consider my testimony to be public record and I have done that 23 times and I feel that is the best way.

MR. CLARKE: Objection, move to strike, your Honor.

THE COURT: Sustained. The answer is stricken.

MR. CLARKE: How many publications have you written, Dr. Gerdes, describing why PCR shouldn't be used in forensics?

DR. GERDES: None.

MR. CLARKE: You have made presentations to people, and I'm talking about like a lecture format, about forensic evidence analysis, correct?

DR. GERDES: Yes.

MR. CLARKE: How many times?

DR. GERDES: Twice.

MR. CLARKE: What groups have those been to? In other words, who has the audience been?

DR. GERDES: Public defenders conferences.

MR. CLARKE: And was that true on both occasions?

DR. GERDES: Yes.

MR. CLARKE: And those are the only presentations about forensic DNA analysis that you have given?

DR. GERDES: That's correct.

MR. CLARKE: Are you a member of the American Academy of Forensic Sciences?

DR. GERDES: No.

MR. CLARKE: The American Society of Crime Laboratory Directors?

DR. GERDES: No.

MR. CLARKE: Did you attend, for instance, the last annual meeting of the American Academy of Forensic Scientists?

DR. GERDES: No, I did not.

MR. CLARKE: Or the one before that?

DR. GERDES: No.

MR. CLARKE: Or any that have ever occurred?

DR. GERDES: No.

MR. CLARKE: Have you attended any--well, first of all, are you familiar with the fact that DNA meetings are put on by, for instance, the Bureau of Investigation?

DR. GERDES: They have forensic meetings, yes.

MR. CLARKE: And have they had, to your knowledge, meeting about DNA?

DR. GERDES: Yes.

MR. CLARKE: And these are--to your knowledge, are these fairly large meetings?

MR. SCHECK: Your Honor, I have an objection to this. Perhaps we need to approach the side bar.

THE COURT: No, we don't, but I think this will become cumulative in a moment.

MR. SCHECK: Something about the nature of these meetings, your Honor.

THE COURT: Overruled. You can bring that out on redirect, counsel.

MR. SCHECK: All right.

MR. CLARKE: Let me actually withdraw that question and ask another question. Have you attended any meeting put on by a forensic organization?

DR. GERDES: Not specifically by a forensic organization. I have attended meetings where forensic topics were included as part of a broader meeting.

MR. CLARKE: Objection, move to strike, your Honor, nonresponsive.

THE COURT: Overruled.

MR. CLARKE: Do you regularly talk with forensic experts?

DR. GERDES: Fairly regularly.

MR. CLARKE: Who are those individuals?

DR. GERDES: Well, there are conversations in terms of cases that I am involved with, so Ed Blake, for instance, Mark Taylor, Ben Grunbaum, Simon Ford to name a few.

MR. CLARKE: Are any of those individuals involved in this case?

DR. GERDES: I think some of them are in terms of consultants.

MR. CLARKE: What about Dr. Blake?

DR. GERDES: Yes.

MR. CLARKE: So you spoke to him in this case?

DR. GERDES: Not about this case.

MR. CLARKE: Did you have any conversations with Dr. Blake about this case?

DR. GERDES: Umm, I had some conversations just with regard to communications with regard to sending me photographs and things like that.

MR. CLARKE: Are you aware that Dr. Blake was present during testing by the Department of Justice in this case?

DR. GERDES: Yes.

MR. SCHECK: Objection, that misstates the testimony.

THE COURT: Overruled.

MR. SCHECK: In terms of "Testing."

THE COURT: Overruled.

MR. CLARKE: Did you communicate with Dr. Blake about any of what he observed about this case in terms of testing by DOJ?

DR. GERDES: There was some communication about DNA concentrations. Other than that, no.

MR. CLARKE: So in other words, you didn't have any regular communications whatsoever with Dr. Blake about what he may have seen going on during testing at DOJ?

DR. GERDES: That's true.

MR. CLARKE: You mentioned another name, Mark Taylor, right?

DR. GERDES: Yes.

MR. CLARKE: Is Mr. Taylor involved in this case?

DR. GERDES: He--he was the individual who accompanied me for the visit to the LAPD and took the photographs.

MR. CLARKE: Is he a consultant in this case as well for the Defense?

DR. GERDES: I'm not sure what his role is. I just know he was involved in that way.

MR. CLARKE: You also mentioned the name Simon Ford, correct?

DR. GERDES: Yes.

MR. CLARKE: Is Simon Ford a forensic DNA analyst?

DR. GERDES: Yes.

MR. CLARKE: Does he perform case work?

DR. GERDES: No.

MR. CLARKE: Does he perform any testing whatsoever on forensic evidence?

DR. GERDES: Not that I am aware of.

MR. CLARKE: You also mentioned Benjamin Grunbaum, correct?

DR. GERDES: Yes.

MR. CLARKE: Does Dr. Grunbaum perform any forensic case work, analysis on case work, to your knowledge?

DR. GERDES: He has been in forensics for probably thirty years, but he doesn't at the moment.

MR. CLARKE: Well, objection, move to strike, your Honor.

THE COURT: Overruled.

MR. CLARKE: Can you tell us any case he has ever performed using DNA typing?

DR. GERDES: Not with DNA.

MR. CLARKE: You have no specific forensic training; isn't that correct?

DR. GERDES: That's correct.

MR. CLARKE: You have never taken a class in forensic science?

DR. GERDES: That's correct.

MR. CLARKE: You have never taught a class in forensic science?

DR. GERDES: That's correct.

MR. CLARKE: You have no training whatsoever in police evidence gathering techniques, correct?

DR. GERDES: No formal training.

MR. CLARKE: Well, is a class formal training or informal training, by your use?

DR. GERDES: That would be formal.

MR. CLARKE: Have you had any class, been to any workshop whatsoever, in the collection of physical evidence in a criminal case?

DR. GERDES: No.

MR. CLARKE: Is it true that you have no personal experience whatsoever in the collection of physical evidence?

DR. GERDES: That's true.

MR. CLARKE: Have you conducted any validation studies involving the--I'm sorry--the analysis of forensic samples?

DR. GERDES: No.

MR. CLARKE: It is true, isn't it, that you have conducted no experiments in the forensic area?

DR. GERDES: That's true.

MR. CLARKE: You have done no studies to determine the effects of sunlight, rain, moisture, et cetera, on crime scene samples; isn't that correct?

DR. GERDES: I haven't done any studies myself.

MR. CLARKE: Your expertise in your view doesn't involve statistics at all, correct?

DR. GERDES: That's correct.

MR. CLARKE: As far as this area of forensic DNA analysis, your role is reviewing data from other labs that have conducted testing, correct?

DR. GERDES: That's true.

MR. CLARKE: And in fact that is what you have done in this case?

DR. GERDES: That's true.

MR. CLARKE: You have never tested evidence in a criminal case, correct?

MR. SCHECK: Asked and answered, your Honor.

THE COURT: Overruled.

DR. GERDES: No, I haven't.

MR. CLARKE: You are not an expert in the analysis of evidentiary material using DNA, correct?

DR. GERDES: I believe I have expertise that speaks to that due to my experience in observing what is going on, reading the forensic literature and other cases I have been involved with, yes.

MR. CLARKE: Haven't you previously testified that you do not consider yourself an expert in the analysis of evidentiary material using DNA?

DR. GERDES: I believe I probably stated it the same way I just did.

MR. CLARKE: Do you believe you are an expert in physically--and I'm sorry--analyzing evidence using DNA typing?

DR. GERDES: Physically doing the testing?

MR. CLARKE: Correct.

DR. GERDES: No.

MR. CLARKE: Is it correct that your only connection with forensic cases is reviewing another laboratory's work usually at the request of a Defense attorney?

DR. GERDES: That is the majority of my experience.

MR. CLARKE: Well, how many times have you been retained by a Prosecutor?

DR. GERDES: Once.

MR. CLARKE: Did that involve a case where a Prosecutor was trying to keep DNA evidence out?

DR. GERDES: Yes.

MR. CLARKE: Was that the only time you have been retained by a Prosecutor?

DR. GERDES: Yes.

MR. CLARKE: So is it correct then every time you have been retained to look at evidence in an individual case it has been to try to keep that evidence out?

MR. SCHECK: Objection. I think that is vague and overbroad.

THE COURT: Sustained. Rephrase the question.

MR. CLARKE: Isn't it correct, Dr. Gerdes, that every time you have been retained to review another laboratory's work it has been with the intent, if possible, of attacking that evidence?

MR. SCHECK: Objection. That is improper in terms of intent.

THE COURT: Sustained.

MR. CLARKE: How many times have you testified as an expert in court in this area?

DR. GERDES: 23 times.

MR. CLARKE: How many times have you been retained to look at laboratory work?

DR. GERDES: Probably on the order of thirty.

MR. CLARKE: You don't testify in all the cases you are retained in; is that right?

DR. GERDES: That's true. Sometimes cases are--due to the strategy of the particular case I'm not asked to come in and testify.

MR. CLARKE: Is it correct that sometimes as a result of your review a Defense attorney doesn't call you as a witness?

DR. GERDES: That's true.

MR. CLARKE: Every time you've testified has been for a criminal Defendant, correct?

MR. SCHECK: Objection, asked and answered.

THE COURT: Overruled.

DR. GERDES: Yes.

MR. CLARKE: And in each of those testimonies you have described your opinion about difficulties with PCR, correct?

DR. GERDES: That's correct.

MR. CLARKE: Now, the laboratories--and I believe you said you have been retained about thirty times or was that an exact number?

DR. GERDES: About.

MR. CLARKE: Okay. Is it correct that most of those times it has been to review work done by Dr. Blake?

DR. GERDES: Umm, I wouldn't say most of the time. I would say maybe a third of the time at this point.

MR. CLARKE: So about ten times, roughly?

DR. GERDES: Approximately, yes.

MR. CLARKE: During those ten times did you testify?

DR. GERDES: Yes.

MR. CLARKE: And did you testify to your opinions about the unreliability of results obtained by Dr. Blake?

DR. GERDES: I testified to my concerns about contamination and PCR in a forensic setting.

MR. CLARKE: And in particular the reliability of the results reported by Dr. Blake in those cases, correct?

DR. GERDES: The testimony goes to expressing and explaining the potential risks of this technology.

MR. CLARKE: Well, on those prior occasions didn't you testify to twelve or more jurors, including alternates, and were trying to give them reasons why they shouldn't believe the results?

MR. SCHECK: Objection, your Honor.

THE COURT: Sustained. Rephrase the question.

(Discussion held off the record between the Deputy District Attorneys.)

MR. SCHECK: Your Honor, at a certain point I may request a side bar on this line of questioning.

MR. CLARKE: As far as your testimony in this particular case, haven't you testified to the same things that you've testified to 23 times before?

MR. SCHECK: Objection, vague.

THE COURT: Overruled.

DR. GERDES: I've been very consistent. This technology has some--some risk with it and I think it is important for the jury to know about those so that they can make a reasonable decision as to how much weight to put on this kind of evidence, and yes, I've always testified to that fact.

MR. CLARKE: How many times have you testified about use of polymarker, for instance?

DR. GERDES: That is a very--that is a more recent type of gene system. I would--without looking it up, I would guess probably four or five times.

MR. CLARKE: And in those instances have you testified about why those results or results obtained using polymarker shouldn't be believed by a jury?

MR. SCHECK: Object to the form of that question.

THE COURT: Sustained. Rephrase the question.

MR. CLARKE: Have you testified in those instances about your concerns about the reliability of results obtained using polymarker?

DR. GERDES: Polymarker is another PCR system. It is susceptible to the same arguments, the same reservations, yes.

MR. CLARKE: And lastly, how many times have you testified, if any, about the marker D1S80?

DR. GERDES: Umm, perhaps three times; a small number.

MR. CLARKE: And in those instances have you again testified about your opinions about the unreliability of the use of that genetic marker?

DR. GERDES: I testified to the risks that need to be considered in any PCR-based testing system.

MR. SCHECK: Your Honor, I have a concern about these questions in terms of--

MR. CLARKE: Well, excuse me.

MR. SCHECK: May I approach about this line of questioning?

THE COURT: No, not at this point. Proceed.

MR. CLARKE: Dr. Gerdes, could you describe for us, please, how many times have you personally conducted just the PCR process itself, this amplification process, at an actual bench, lab bench?

DR. GERDES: Most of the testing that is done in our lab by PCR right now is done by technicians who are under my direction. I probably have personally done on the order of a hundred or so or more.

MR. CLARKE: Is that something you do now?

DR. GERDES: That I personally do testing?

MR. CLARKE: Correct.

DR. GERDES: No.

MR. CLARKE: And in fact you testify, do you not, and I mean in areas--well, let me rephrase that. Did you ever testify, as a result of your laboratory's work, in areas other than forensic stain analysis like this case?

DR. GERDES: (No audible response.)

MR. CLARKE: Do you testify about paternity?

DR. GERDES: Yes. I have testified with regards to paternity, yes.

MR. CLARKE: When you testify in that regard do you testify based on the results obtained by your analysts or technicians?

DR. GERDES: Yes, I do.

MR. CLARKE: In other words, you didn't personally do the work in those cases wherein you ultimately testify?

DR. GERDES: That's correct, but I'm responsible to review the work and we have--if you have appropriate controls, you can look at the documentation of this kind of testing and determine if it was done correctly, if the controls look right, you have photos to look at and so forth, and pick up problems, so that is my responsibility.

MR. CLARKE: And in fact this process of reviewing the work of a technician, that is the same thing that occurred in this case with regard to Cellmark, for instance?

DR. GERDES: I'm sorry, I don't understand your--

MR. CLARKE: As far as the in manner which Cellmark conducted testing, are you familiar with that testing in this case?

DR. GERDES: Cellmark's testing, yes.

MR. CLARKE: Yes. For instance, who were the bench analysts who conduct the actual physical testing at Cellmark?

DR. GERDES: Paula Yates, I believe was one, and I don't recall the other person.

MR. CLARKE: Would it be Julie Cooper?

DR. GERDES: Julie Cooper.

MR. CLARKE: In other words, they physically conducted the testing as far as using the reagents, conducting electrophoresis, if that was part of an individual process, and so forth, correct?

DR. GERDES: That's correct.

MR. CLARKE: And in this particular case are you familiar with the fact that Robin Cotton testified as an expert?

DR. GERDES: Yes.

MR. CLARKE: You are familiar with Dr. Cotton?

DR. GERDES: I am.

MR. CLARKE: You have had contact with her before as a result of your review of work done by Cellmark diagnostics?

DR. GERDES: Yes, I have.

MR. CLARKE: Dr. Cotton in this case testified based on her review of the work conducted by her analysts, correct?

DR. GERDES: That's correct.

MR. CLARKE: And that is scientifically appropriate to do so, in your opinion, isn't it?

DR. GERDES: It is.

MR. CLARKE: You described yesterday, Dr. Gerdes, the fact that your laboratory charges $100.00 an hour for your work in this case; is that right?

DR. GERDES: That's correct.

MR. CLARKE: Has your laboratory received funds so far for your work in this case?

DR. GERDES: Yes.

MR. CLARKE: How much, approximately?

DR. GERDES: Somewhere on the order of 20,000 I would guess. I don't know exactly.

MR. CLARKE: Could it be more?

DR. GERDES: It could be.

MR. CLARKE: Does that include all of the time you've put into this case up to today and right now?

DR. GERDES: No.

MR. CLARKE: Can you estimate for us the amount of money that your laboratory is owed as a result of your work, including today?

DR. GERDES: I would guess you probably would add another 10,000 onto that.

MR. CLARKE: So the total would be approximately $30,000; is that right?

DR. GERDES: That's correct.

MR. CLARKE: Could that amount be higher than that?

DR. GERDES: I don't have the figures, so it depends on how long I undergo--I mean how long this goes on.

MR. CLARKE: When were you initially retained by the Defense in this case?

DR. GERDES: If I remember correctly, I was first phoned or called in September, either September or October.

MR. CLARKE: Of `94?

DR. GERDES: Of `94.

MR. CLARKE: You have put a lot of time into this case?

DR. GERDES: It--yes.

MR. CLARKE: You have reviewed all the typing strips at the Los Angeles Police Department through approximately May of `93 through August of `94, correct?

DR. GERDES: That's correct.

MR. CLARKE: That is a fairly large task, isn't it?

DR. GERDES: Yes, it is.

MR. CLARKE: That took a lot of time?

DR. GERDES: It did.

MR. CLARKE: You also reviewed--let me phrase it as a question. Did you review all of the documentation from the Department of Justice in this case?

DR. GERDES: I did.

MR. CLARKE: That is a very large amount of material; is that correct?

DR. GERDES: It is.

MR. CLARKE: Did you review all of the material from Cellmark diagnostics in this case?

DR. GERDES: I did.

MR. CLARKE: That is probably a little less than the Department of Justice material; is that right?

DR. GERDES: It is.

MR. CLARKE: But still a substantial amount of data to look at?

DR. GERDES: Yes.

MR. CLARKE: When you look at this material it takes a long period of time, doesn't it?

DR. GERDES: It does.

MR. CLARKE: You described the fact--well, let me rephrase that, if I may. What year did you begin with the laboratory, IAD?

DR. GERDES: 1988.

MR. CLARKE: And what year did you begin testifying as an expert for criminal defendants?

DR. GERDES: 1990.

MR. CLARKE: You described the fact yesterday that there is a replacement for you that takes your place when you are either gone or working on other cases, that is, criminal cases?

DR. GERDES: Well, not specifically. It is not like they hire someone to come in. Basically there are three individuals who are directors of this laboratory, we are all directors, and while I am gone someone has to take over those responsibilities. They take over.

MR. CLARKE: Okay. So the laboratory doesn't bring in another person?

DR. GERDES: No.

MR. CLARKE: That is, hires an outside individual?

DR. GERDES: No, they don't.

MR. CLARKE: Basically the other directors in your lab--was that the term?

DR. GERDES: Yes.

MR. CLARKE: They pick up the slack, for lack of a better term?

DR. GERDES: Yes.

MR. CLARKE: So your laboratory doesn't lose any money in terms of having to pay anyone else?

DR. GERDES: Not specifically.

MR. CLARKE: Could I have just a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: As far as your salary--well, do you receive a salary?

DR. GERDES: Yes, I do.

MR. CLARKE: Does that work out to a hundred dollars an hour?

DR. GERDES: I believe it does. No, it doesn't; it is less than that.

MR. CLARKE: It is substantially less, isn't it?

DR. GERDES: Can you tell me a yearly figure for a hundred dollars an hour so that I can make it easy for me?

MR. CLARKE: Let's sake an eight-hour day, that is about $800.00 a day, and how much would that be a week?

DR. GERDES: Okay, 5600.

MR. CLARKE: Okay.

DR. GERDES: So--

MR. CLARKE: How about a five-day work week instead of seven?

DR. GERDES: Well, okay. I work seven days a week. Okay. So 4000, so okay, we are talking about--

MR. CLARKE: Over 200,000?

DR. GERDES: That would be about half--half of that.

MR. CLARKE: Okay. Can you estimate for us approximately how much your laboratory has profited--how much money they have taken in from your testimony and work in criminal cases? Is there anyway you put a rough estimate total?

DR. GERDES: Total?

MR. CLARKE: Total.

DR. GERDES: Over the five years, umm--umm--perhaps somewhere on the order of 80,000 or maybe a hundred thousand, over five years.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: So is it correct then that your laboratory is billing approximately two times or twice as much as you make when you are at home working in the lab?

DR. GERDES: You could interpret it that way.

MR. CLARKE: All right. Dr. Gerdes, I would like to shift your attention to RFLP typing. You are familiar with it, correct?

DR. GERDES: Yes.

MR. CLARKE: You have no disagreement whatsoever with its reliability, correct?

DR. GERDES: That's correct.

MR. CLARKE: In fact, it has been used in science for over ten years, is that safe to say?

DR. GERDES: Yes.

MR. CLARKE: It was developed by Sir Alec Jeffries in London along with Dr. White working independently?

DR. GERDES: Well, the underlying scientific principles actually are traced back to an individual named southern who developed the southern blotting technique and those individuals you mentioned were involved in the first to apply it for forensics.

MR. CLARKE: And it is a technology that is used around the world, correct?

DR. GERDES: That's correct.

MR. CLARKE: Life and death decisions are made based on results using RFLP typing?

DR. GERDES: Umm, I guess you could say that.

MR. CLARKE: Well, diagnosing a disease that might kill a person, that is a life and death matter, isn't it?

DR. GERDES: Yes.

MR. CLARKE: And it is used to diagnose a whole host of diseases, correct?

DR. GERDES: It is primarily used in genetic--diagnosing genetic diseases and in the--looking at certain gene alterations involved in some cancers.

MR. CLARKE: It is used to look at, for instance, whether a person suffers from cystic fibrosis, right?

DR. GERDES: That is a genetic disease, yes.

MR. CLARKE: It is used to determine, for instance, whether or not a person has muscular dystrophy?

DR. GERDES: Yes.

MR. CLARKE: It is used as to whether or not tissue can be transplanted, as you described yesterday, from one person to another?

DR. GERDES: Most labs don't use RFLP at this point.

MR. CLARKE: What do they use now?

DR. GERDES: They use PCR-based testing.

MR. CLARKE: The same PCR that you described yesterday?

DR. GERDES: Yes.

MR. CLARKE: The technology?

DR. GERDES: The technology is the same, yes.

MR. CLARKE: And in fact isn't it true that there are a whole host of uses of RFLP typing?

DR. GERDES: Yes.

MR. CLARKE: You use the RFLP technique in your paternity work, correct?

DR. GERDES: Yes.

MR. CLARKE: Does that ever involve, for instance, making interpretations on bands that might not look exactly like another band from another sample?

DR. GERDES: It does.

MR. CLARKE: In other words, it involves some interpretation, correct?

DR. GERDES: That's correct.

MR. CLARKE: You may see faint bands; is that right?

DR. GERDES: Occasionally.

MR. CLARKE: You may see, as you have used the term, "Artifacts"?

DR. GERDES: That's true.

MR. CLARKE: Incidentally, when you have conducted a paternity test, does that involve numbers at all when you report results?

DR. GERDES: Yes, it does.

MR. CLARKE: In other words, you calculate a statistical probability, or whatever term, to describe how unusual it is to see these two samples matching, for instance, from a child and an alleged father?

DR. GERDES: We calculate that using what is called baysean statistics which is different than what is used in a forensic setting, but it is statistics.

MR. CLARKE: And does it involve multiplying results over more than one genetic marker?

DR. GERDES: It does.

MR. CLARKE: IAD doesn't use RFLP typing in any forensic work that is done by anyone in the laboratory, correct?

DR. GERDES: That's correct.

MR. CLARKE: Setting aside paternity?

DR. GERDES: That's correct.

MR. CLARKE: Are you aware of the number of labs using RFLP typing in forensic stain analysis?

DR. GERDES: I don't know the exact number. I know there are quite a few using that.

MR. CLARKE: It is in the hundreds, isn't it?

DR. GERDES: Perhaps.

MR. CLARKE: Dr. Gerdes, are you offering an opinion to this jury that forensic PCR typing doesn't produce accurate results?

MR. SCHECK: Objection to the form of that question.

THE COURT: Overruled.

DR. GERDES: The PCR process itself, the method of amplifying DNA is a sound scientific principle, but the way in which it is currently--basically my opinion is it is inadequately controlled in forensic testing at the moment and it hasn't been adequately validated for that technology transfer. That is my testimony.

MR. CLARKE: And you have testified to that for the last five years, correct?

DR. GERDES: I have.

MR. CLARKE: You have offered that opinion all twenty times you've testified, correct?

DR. GERDES: Yes.

MR. SCHECK: I do have an objection at this point. It has to do--

THE COURT: Overruled.

MR. SCHECK: It is a legal ruling with respect to the nature of those proceedings.

THE COURT: Overruled.

MR. CLARKE: Excuse me. Object to the objection also, your Honor.

THE COURT: Noted. Overruled.

MR. SCHECK: Request a side bar.

THE COURT: Overruled. Let's move on.

MR. CLARKE: Dr. Gerdes, in your opinion then is PCR also not appropriate to use to exclude people in forensic cases?

DR. GERDES: That's correct.

MR. CLARKE: You can't use to it include somebody?

DR. GERDES: That's right.

MR. CLARKE: You can't use it to exclude someone?

DR. GERDES: The potential error, in my opinion, of additional dots due to contamination could just as likely cause a false exclusion as inclusion.

MR. CLARKE: As you are using the term "Inclusion and exclusion," what do you mean, just to make sure we are talking the same language?

DR. GERDES: Well, "Inclusion" would mean that you match a sample with an individual that results in them being accused of a crime, in this sense, and "Exclusion" would be that due to that testing you would come up with a result that would say that they could not have done it.

MR. CLARKE: You do hold the opinion that the use of PCR in medical uses, however, is sufficient in terms of sufficient reliability to be used to produce accurate results?

DR. GERDES: I do, based on all of the things we talked about yesterday where we discussed all of those items in terms of technology transfer and the relative risks of the two.

MR. CLARKE: As far as this PCR process, that was invented by Dr. Kary Mullis, correct?

DR. GERDES: That's correct.

MR. CLARKE: Is he present in the audience?

DR. GERDES: He is.

MR. CLARKE: Where is he?

DR. GERDES: He is sitting right--second individual over on the first row behind the desk there.

THE COURT: Between Mr. Uelmen and next to Mr. Douglas.

DR. GERDES: Yes.

THE COURT: And behind Mr. Scheck.

MR. CLARKE: Isn't it correct, Dr. Gerdes, that your view that PCR is okay to use in medical uses is due to the number of genetic markers that are available to test and the fact that you can confirm those results with other tests?

MR. SCHECK: Objection, compound and vague.

THE COURT: Compound.

MR. CLARKE: Is it correct that it is your belief that PCR is acceptable to use in medical diagnostics or medical uses--

MR. SCHECK: Objection. I'm sorry. Finish the question. I'm sorry.

MR. CLARKE: I will start it again if I may. Thank you.

MR. CLARKE: Is it correct, Dr. Gerdes, that your opinion about the scientific acceptance in terms of why you believe it is appropriate to use, and I'm referring to PCR in medical diagnostic uses, is based on the number of genetic markers you can look at? Is that one reason.

MR. SCHECK: My objection here is specifically which applications to PCR. I think it is vague.

THE COURT: It is vague. Sustained.

MR. CLARKE: When you feel--and you offered the opinion that the use of PCR in medical uses is appropriate, correct?

DR. GERDES: It is.

MR. CLARKE: What uses are you referring to?

DR. GERDES: There are a variety of specific applications. The ones that we use in my lab are the detection of infectious agents such as cytomegalovirus or chlymadia and the typing of HLA for the purpose of bone marrow transplant where you know you were working with a sample from a given individual.

MR. CLARKE: Okay. Let's start with CMV. That is a virus, correct?

DR. GERDES: That's correct.

MR. CLARKE: Can we use the term CMV as a shorthand manner?

DR. GERDES: Yes.

MR. CLARKE: When you attempt to diagnose--and that is what you do, use PCR to attempt to diagnose the presence of CMV?

DR. GERDES: That's correct.

MR. CLARKE: --do you look at just one genetic marker?

DR. GERDES: Yes, we do.

MR. CLARKE: When you test for the disease--is it proper to call chlymadia a disease?

DR. GERDES: Yes.

MR. CLARKE: --how many markers do you look at for that particular item?

DR. GERDES: The kit that is--includes one specific marker that you look for.

MR. CLARKE: Is there any significance to looking at multiple markers in an individual sample in the medical arena?

DR. GERDES: Under certain circumstances I think that would be a good idea.

MR. CLARKE: As far as criminal cases, do you feel it is a good idea to look at more than one marker?

DR. GERDES: It gives you additional information.

MR. CLARKE: And the more information that is available, the better, right?

DR. GERDES: Correct.

MR. CLARKE: As far as PCR, is it correct that there are thousands of U.S. laboratories using PCR?

DR. GERDES: I think that is a fair statement.

MR. CLARKE: Life and death decisions are made based on the results of PCR typing everyday, correct?

DR. GERDES: Yes.

MR. CLARKE: PCR is used to find out, for instance, if food or dairy products have organisms in them that shouldn't be there, right?

DR. GERDES: I am not aware of that. Certainly it is used to diagnose whether or not fetuses have diseases?

DR. GERDES: Yes.

MR. CLARKE: It is used to diagnose many, if not most, of the same diseases that RFLP typing is used today or was previously used; is that right?

DR. GERDES: That is true.

MR. CLARKE: Incidentally, as far as disease diagnosis and--you have some experience in that area, correct?

DR. GERDES: That's correct.

MR. CLARKE: As far as the use of PCR, are the results of those diagnoses always clear-cut?

DR. GERDES: Not always.

MR. CLARKE: In other words, it isn't always either there a real clear answer that the person has it or there is a real clear answer that the person doesn't, right?

DR. GERDES: That's correct.

MR. CLARKE: And there are some diseases where there is a gray area in between those two; isn't that right?

DR. GERDES: That's true.

MR. CLARKE: And the results of those uses of PCR are utilized by doctors to counsel people on whether they have a disease, correct?

DR. GERDES: In those specific--this situation that you have set up they would obviously look at other clinical factors to try and make a determination. That would be one aspect of their decision in terms of their diagnosis is.

MR. CLARKE: Isn't it true that in many of those instances, doctor, you have to counsel patients when they have to tell them you may or may not have this disease?

DR. GERDES: That's true.

MR. CLARKE: Is that a significant decision, in your viewpoint, as to what the patient decides?

DR. GERDES: Yes.

MR. CLARKE: Now, this technology involving PCR has been used to identify American war dead, correct?

DR. GERDES: Yes.

MR. CLARKE: Including in the Persian Gulf war?

DR. GERDES: I am familiar with that, yes.

MR. CLARKE: Isn't it true Cellmark was the laboratory that performed this testing for the United States government?

DR. GERDES: I believe it was.

MR. SCHECK: Your Honor, I--if we go further along these lines I think it is cumulative and 352 objection.

THE COURT: Overruled. Overruled.

MR. CLARKE: Is it correct, Dr. Gerdes, that there are over 14,000 publications on the use of PCR, scientific publications?

DR. GERDES: That's true.

MR. CLARKE: PCR is used by every molecular biology lab that you are aware of, correct?

DR. GERDES: Absolutely.

MR. CLARKE: Is it your opinion that there is no self-respecting molecular biologist alive who doesn't use PCR right now?

DR. GERDES: I think that is a fair statement.

MR. CLARKE: Now, PCR in your own lab at IAD has been used since what year?

DR. GERDES: We started using it when I arrived at IAD, 1988 or shortly thereafter.

MR. CLARKE: That was--well, let me rephrase that. Already in place in your laboratory were RFLP techniques, correct?

DR. GERDES: No. Actually I was hired to set those up.

MR. CLARKE: So when you came into the lab you used both RFLP typing and PCR typing?

DR. GERDES: That's correct.

MR. CLARKE: Your laboratory then has used PCR either in a development phase or in an actual case work phase then for about seven years; is that fair?

DR. GERDES: That is fair.

MR. CLARKE: Is it correct that most of the current work that your laboratory performed is done by PCR?

DR. GERDES: No, that is not true.

MR. CLARKE: What percentage would you estimate of the case work at your--well, let's broaden it out. What percentage would you estimate of all the work conducted in your laboratory is done by PCR?

DR. GERDES: Approximately thirty percent.

MR. CLARKE: Does that include case work?

DR. GERDES: Yes.

MR. CLARKE: Where you report out results following the use of PCR in the areas of, for instance, whether a person has CMV?

DR. GERDES: That's correct. It wouldn't be thirty percent of the CMV diagnosis. The problem is certain techniques use PCR and we use them for that, and other techniques use other scientific methods and we do a wide range of different tests.

MR. CLARKE: Now, you routinely use PCR for this virus infection?

DR. GERDES: For CMV we do, yes.

MR. CLARKE: That is a viral infection, yes?

DR. GERDES: Correct.

MR. CLARKE: What do you actually analyze? What do you receive in the lab to look at?

DR. GERDES: We receive a blood specimen.

MR. CLARKE: Is that a difficult diagnosis?

DR. GERDES: It is a difficult diagnosis in terms of traditional methods. I feel that PCR has made it--our quantitative PCR, once it was adapted to a quantitative method, has made that diagnosis more reliable.

MR. CLARKE: As far as this virus use of PCR and--let me rephrase that if might. In your views of PCR to diagnose this virus, are you looking for levels of virus as opposed to whether a particular allele is present?

DR. GERDES: Yes.

MR. CLARKE: So you are looking for a range and make a decision within that range whether or not the virus is there?

DR. GERDES: No. 1, is it there, and no. 2, how much is there.

MR. CLARKE: Do you have to make any subjective interpretations about the levels as far as making a conclusion whether the person has it?

DR. GERDES: It is an objective conclusion based on a standard curve that we have derived and the methodology we have derived so that we can precisely measure levels of the DNA from CMV.

MR. CLARKE: Incidentally--and I'm not sure the term came up yesterday, but it may have, but one of the instruments used in PCR frequently is called a thermalcycler; is that right?

DR. GERDES: That's correct.

MR. CLARKE: Your laboratory, I assume, has one or more than one thermalcyclers?

DR. GERDES: Yes.

MR. CLARKE: Who manufacturers that product?

DR. GERDES: Perkin Elmer.

MR. CLARKE: We have also--and you are aware of testimony, are you not, about a corporation referred to as Roche?

DR. GERDES: Correct.

MR. CLARKE: And in fact Roche manufacturers the typing kit used in this case for DQ-Alpha, polymarker and the other PCR marker in this case, D1S80?

DR. GERDES: That's correct.

MR. CLARKE: Is there any relationship between Perkin Elmer and Roche?

DR. GERDES: Yes.

MR. CLARKE: What is that?

DR. GERDES: I don't know the details, but basically Roche holds the licensing--the patent, if you will, for the PCR process and they have negotiated a marketing agreement through Perkin Elmer for Perkin Elmer to market the kits that Roche develops.

MR. CLARKE: So your laboratory bought this thermalcycler from Perkin Elmer who is related to Roche, correct?

DR. GERDES: Correct.

MR. CLARKE: In your opinion is that thermalcycler that you use reliable?

DR. GERDES: That is the best thermalcycler on the market in my opinion.

MR. CLARKE: Does it have a model number?

DR. GERDES: The one we use is called a 9600. There are other models, but that is the one that we have.

MR. CLARKE: How many samples can you place in that thermalcycler at one time?

DR. GERDES: It has the capability of 96.

MR. CLARKE: Incidentally, when your--well, let me rephrase it. Your technicians use the thermalcycler, correct?

DR. GERDES: That's correct.

MR. CLARKE: They place tubes in the various wells in the thermalcycler?

DR. GERDES: That's correct.

MR. CLARKE: Do they change gloves between every sample that they touch when they put in the samples?

DR. GERDES: They change gloves between samples when they prepare those tubes.

MR. CLARKE: That is not what I'm asking.

DR. GERDES: The tubes are in strips so that after you have placed them--I mean, once you have headed the tube, then you put it in the thermalcycler, you are carrying like a rack of tubes that are placed in there.

MR. CLARKE: When they place tubes, individual tubes into the thermalcycler, do they change gloves between each tube?

DR. GERDES: Not when they are placing it in the thermalcycler.

MR. CLARKE: What is the most number of samples that have been run in that cycler at one time?

DR. GERDES: It has the capability of 96.

MR. CLARKE: What is the most that have been run in your laboratory at one time?

DR. GERDES: In my laboratory?

MR. CLARKE: Correct.

DR. GERDES: I think there have been a number of occasions where we have run all 96.

MR. CLARKE: And that is the most that it will hold, correct?

DR. GERDES: Correct. That wasn't on case work, however.

MR. CLARKE: Do you know what type of thermalcycler the Los Angeles Police Department uses?

DR. GERDES: They have the 9600 as well.

MR. CLARKE: Same exact thermalcycler that you have in terms of the model and its capabilities?

DR. GERDES: Correct.

MR. CLARKE: What about the Department of Justice?

DR. GERDES: I think they have the 480, if I remember correctly, which is the model that preceded the 9600.

MR. CLARKE: Is there anything in your opinion about the model 480 that is unreliable, as opposed to the 9600?

DR. GERDES: No.

MR. CLARKE: What about Cellmark?

DR. GERDES: They also--I believe they also have the 480.

MR. CLARKE: Incidentally, you also described bone marrow transplant tests that are performed in your lab, correct?

DR. GERDES: Correct.

MR. CLARKE: Do those use PCR in any manner?

DR. GERDES: Yes, they do.

MR. CLARKE: And you've also described this national registry, correct?

DR. GERDES: Correct.

MR. CLARKE: The national registry requires, for purposes of inclusion in this registry, PCR typing be done, correct?

DR. GERDES: That's correct.

MR. CLARKE: And in particular they require that a particular genetic marker region be used to conduct that typing, correct?

DR. GERDES: That's correct.

MR. CLARKE: And that is the HLA region?

DR. GERDES: It is not the same--it is not DQ-Alpha. It is another HLA gene. It is called DR-beta.

MR. CLARKE: Okay. My question was, is that part of the HLA gene?

DR. GERDES: It is part of that complex, but there are more than one gene in that complex so it is not the same gene, but it is in the same area.

MR. CLARKE: Is it correct then that the DQ-Alpha gene is in the same area as the exact gene that you test in your laboratory for bone marrow typing?

DR. GERDES: Yes.

MR. CLARKE: You have mentioned DQ-Alpha and I believe DQ-beta yesterday as well?

DR. GERDES: Yes.

MR. CLARKE: Are they related?

DR. GERDES: Yes, they are.

MR. CLARKE: And I think you may have mentioned DR as well. Are these just different particular genes that are located close to one another?

DR. GERDES: Yes.

MR. CLARKE: Do you test the DQ-beta gene in your lab?

DR. GERDES: Yes.

MR. CLARKE: Do you test the DR gene in your lab?

DR. GERDES: Yes.

MR. CLARKE: Isn't it correct that by testing more than one gene you increase the likelihood of your finding important information in your work in your laboratory?

DR. GERDES: Yes.

MR. CLARKE: Do you use PCR for any other purposes other than bone marrow transplant information and looking for CMV?

DR. GERDES: We are very close to using it for the purpose of looking at donors, as I explained the other day, in terms of looking for infectious agents in donors.

MR. CLARKE: Incidentally, as far as the actual process of conducting PCR typing amplification and then typing that process in a broad sense is the same whether it is medical or forensic, correct?

DR. GERDES: The basic set-up of the method in terms of how it is set up, that is the same, yes.

MR. CLARKE: In your lab do you ever test degraded samples?

DR. GERDES: No.

MR. CLARKE: Is it your testimony that you have never conducted any case work analysis on a degraded sample?

DR. GERDES: Yes.

MR. CLARKE: As far as the use of PCR in other laboratories, and let's go outside criminal cases and forensics, isn't it correct that PCR is used on degraded samples?

DR. GERDES: It is being used for that.

MR. CLARKE: What are some samples of that?

DR. GERDES: In the forensic community?

MR. CLARKE: No, outside forensics.

DR. GERDES: I'm sorry, I misunderstood your question then. I'm having a hard time thinking of one.

MR. CLARKE: Okay. Are you aware of the use of PCR, for instance, in the study of endangered animals.

MR. SCHECK: Your Honor, I think that this is irrelevant.

THE COURT: Overruled.

DR. GERDES: No, I'm not.

MR. CLARKE: You have never heard of it?

DR. GERDES: No.

MR. CLARKE: Are you aware of the use of PCR--well, you are aware of the use of PCR to identify remains of war dead, correct?

MR. SCHECK: Objection, asked and answered.

THE COURT: It is in a different context, counsel.

DR. GERDES: I am aware that that is done.

THE COURT: Specifically on degraded samples, correct?

MR. CLARKE: Correct.

THE COURT: Proceed.

MR. CLARKE: You are aware that it is done on war dead?

THE COURT: We have established that.

MR. CLARKE: Isn't it correct that PCR was used on, for instance, soldiers who were brutally killed in the Persian Gulf war?

MR. SCHECK: Your Honor, your Honor--

THE COURT: Sustained. We have already asked that.

MR. CLARKE: All right. Isn't it true that with regard to that usage that those are bodies have been violently killed out in the desert?

MR. SCHECK: Objection to this line at this point, your Honor.

THE COURT: Overruled. This is in the context of degraded samples?

MR. CLARKE: Yes.

THE COURT: Proceed.

DR. GERDES: Yes, that's true.

MR. CLARKE: Would you consider a body that has been out in the desert for hours or days degraded?

DR. GERDES: Yes.

MR. CLARKE: PCR has been used to type mummies; isn't that correct?

DR. GERDES: Yes.

MR. CLARKE: Is that a degraded sample?

DR. GERDES: I'm sure it is.

MR. CLARKE: You described, for instance, the use of this--I'm sorry, let me rephrase that question. Your work in your laboratory is mainly with infectious materials as far as PCR, right?

DR. GERDES: Well, we do both infectious materials as well as HLA typing and those I don't think would be considered--the registry individuals are not considered to be infectious. Of course you handle everything as though it is potentially infectious.

MR. CLARKE: Is PCR used to, for instance, type the presence of certain diseases in samples that have been obtained during a biopsy, for instance, a portion removed from a person's body?

DR. GERDES: Occasionally it can be done for that.

MR. CLARKE: Is that a sterile sample?

DR. GERDES: It is collected sterilly in an operating room, for instance.

MR. CLARKE: Okay. But is the sample sterile, or as you have used the term, was it aseptic?

DR. GERDES: Well, certainly tissue is sterile when you collect it, unless it is infected.

MR. CLARKE: And if it is infected it isn't sterile is it?

DR. GERDES: No.

MR. CLARKE: And in fact those samples are frequently sent out for PCR typing to determine whether or not there is a disease or infection there, right?

DR. GERDES: Yes, but what you are looking for there is the infection.

MR. CLARKE: Are you aware of the use of PCR on samples that have been preserved in paraffin?

DR. GERDES: PCR has been used for that.

MR. CLARKE: What is a sample preserved in paraffin? Could you describe that?

DR. GERDES: In the normal process of doing what is called pathology, tissue samples are frequently imbedded with this wax or paraffin that allows you to cut sections and put them on a microscope slide and see the morphology, the architecture of the cells, and pathologists then can look at that and determine disease states.

MR. CLARKE: Are those samples ever degraded?

DR. GERDES: I wouldn't consider it degraded. They are basically fixed and then imbedded with this paraffin and the process itself results in cross-linking of the protein in the sample to the DNA so that it is very difficult to extract the DNA after that.

MR. CLARKE: Well, you say you wouldn't consider it degraded. These can be samples that are years old, can't they?

DR. GERDES: Yes, but they are fixed and imbedded in paraffin. That pretty much preserves them.

MR. CLARKE: Well, is it your testimony that those samples that are preserved in paraffin the DNA is in exactly as good a form as it was when it was removed?

DR. GERDES: Yes, it is.

MR. CLARKE: So there is no degradation in those samples that may be years old period?

DR. GERDES: There is no degradation in that section. When you try and extract the DNA, because of the cross-linkage, you get DNA that has been--is in smaller pieces, but it is not due to any kind of contamination with bacteria that eat it, nothing like that.

MR. CLARKE: That never happens?

DR. GERDES: Not in those sections.

MR. CLARKE: There is a fairly common term known as a pap smear; is that right?

DR. GERDES: Yes.

MR. CLARKE: And that is taken from women as part of an analysis, correct, or for purposes of an analysis?

DR. GERDES: Yes.

MR. CLARKE: In your opinion is that an example of a sample that is sterile?

DR. GERDES: No, it is not sterile.

MR. CLARKE: That sample, while not sterile, is still tested to determine whether or not there may be a disease present in that individual?

DR. GERDES: What you are misunderstanding is you are testing for an infectious agent in that you are not testing for a specific human gene, so you are looking for the contaminant in this case.

MR. CLARKE: Well--

DR. GERDES: You are looking for the bacterial contaminant.

MR. CLARKE: Are there any other contaminants that might be present in that sample?

DR. GERDES: There are a variety of things I'm sure, but--

MR. CLARKE: The presence of those variety of contaminants doesn't stop that sample from being tested for the disease that is being looked for, correct?

DR. GERDES: The PCR is very precise and you design it so that you are only looking for the specific microorganism you are interested in, such as chlymadia which we do in our lab. That particular PCR will not detect herpes or a variety of other things that perhaps might be in that sample. It is designed to very specifically look for only the chlymadia organism.

MR. CLARKE: So in other words, one of the important components or parts of PCR typing is designing it to look for what the scientist is trying to find?

DR. GERDES: That is true, and if you have a system that looks just simply for human DNA, that is where the problem comes in.

MR. CLARKE: Well, objection, move to strike the last portion of the answer, your Honor.

THE COURT: Overruled. Overruled.

MR. CLARKE: As far as known samples in your lab, do you use any cards? By "Cards" I mean a card that a portion of a liquid blood sample would be poured onto so that it can be used in that form?

DR. GERDES: Never.

MR. CLARKE: Are you aware of that in the--that is its use in the medical diagnostic area?

DR. GERDES: I also believe there are some--some areas where they are doing that, looking for infections perhaps--I have read papers on hepatitis, for instance, where they will do that. But again, you are misunderstanding. In that case you are looking for the hepatitis organism so you have a specific mechanism--

MR. CLARKE: I'm sorry, your Honor. Objection, move to strike the last portion.

THE COURT: Overruled.

MR. CLARKE: As far as DNA, DNA is something that basically degrades, correct?

DR. GERDES: It can.

MR. CLARKE: And it can degrade to the point where there is no activity left or the DNA perishes, for lack of a better term?

DR. GERDES: Well, degradation just simply means that due to whatever reason--the DNA is a long stringy molecule that starts getting chopped up into smaller and smaller pieces. Ultimately you end up with such small pieces that when you attempt to analyze it you can't.

MR. CLARKE: Focusing on samples--and let's just take a bloodstain, for instance, that is outside. Something on the outside can be exposed to sunlight, yes?

DR. GERDES: Yes.

MR. CLARKE: Sunlight doesn't change a DNA type, does it?

DR. GERDES: No.

MR. CLARKE: Rain doesn't change a DNA type, does it?

DR. GERDES: No.

MR. CLARKE: Soil doesn't change a type?

DR. GERDES: No.

MR. CLARKE: Leaves don't change a DNA type?

DR. GERDES: No.

MR. CLARKE: Those things can, however, lead to DNA being less and less typeable? In other words, the DNA be at levels where it becomes more difficult to get an answer, if one can get an answer at all?

DR. GERDES: That's correct.

MR. CLARKE: Isn't it correct that the difference between medical specimens that are subjected to PCR and forensic specimens is where the sample came from?

DR. GERDES: That is one difference.

MR. CLARKE: That is the most important difference, isn't it?

DR. GERDES: Yes.

MR. CLARKE: Now, you are familiar in this case of testimony that has described that following PCR several genetic markers were typed using this dot blot technique?

DR. GERDES: Yes.

MR. CLARKE: And in fact you've observed the use of that technique in all approximately thirty cases you've viewed, right?

DR. GERDES: Correct.

MR. CLARKE: You use dot-blotting in your own laboratory, correct?

DR. GERDES: The direct dot-blotting, yes. It is a little different, but the same--essentially the same.

MR. CLARKE: In other words, whether direct or indirect, that is not a major difference or is that a significance difference in terms of the opinions you have offered over the last two days?

DR. GERDES: I don't believe so.

MR. CLARKE: That dot-blotting in your laboratory includes dot-blotting following PCR on vaginal specimens, correct?

DR. GERDES: No, we don't do dot-blotting on vaginal specimens.

MR. CLARKE: Have you ever done dot-blotting on vaginal specimens in your laboratory?

DR. GERDES: At one time we did look for an organism, human papilloma virus using that technology, but we don't at the moment.

MR. CLARKE: I hope that term is it--is it also nicknamed HPV?

DR. GERDES: Yes.

MR. CLARKE: Do you take photographs of the dot-blots in your laboratory?

DR. GERDES: Yes. Well, it depends. I mean, basically our system at the moment, the way we run dot-blots is the detection methodology is what is called chemiluminescence and it results in basically the release of light during the reaction and so it is more light developing a photograph, so what we really keep are what would be similar to the negatives.

MR. CLARKE: All right. As far as have you ever photographed dot-blots in your laboratory?

DR. GERDES: We have either used autoradiography or chemiluminescence so I don't believe so.

MR. CLARKE: As far as your own experience in criminal cases, that has included looking at photographs of dot-blots, correct?

DR. GERDES: Yes.

MR. CLARKE: Looking at a photograph isn't the same as looking at a strip live, correct?

DR. GERDES: That's correct.

MR. CLARKE: And in fact would it be correct to say that the analyst who sees a dot-blot strip live is in a better position to see exactly the reactions that have occurred?

DR. GERDES: One of the limitations of this system is those dots fade fairly rapidly, so it is true that you can--the analyst might see something that would fade away and then when you photograph it, you would--the second--it wouldn't be present in the photo where it could have been there in the original.

MR. CLARKE: Are errors made in your laboratory during testing?

DR. GERDES: I think errors are a fact of life. Everyone makes errors.

MR. CLARKE: Are errors made in the diagnostic and clinical work in your laboratory?

DR. GERDES: Errors are made--we do everything we can to prevent errors and I can't say that we have never made an error. They are a fact of life.

MR. CLARKE: Well, some of the techniques that you use or have used in your laboratory have a certain error rate, don't they?

DR. GERDES: Yes.

MR. CLARKE: You have tested for HIV in your laboratory in the past, correct?

DR. GERDES: Yes.

MR. CLARKE: And do you currently test for HIV?

DR. GERDES: Yes.

MR. CLARKE: Incidentally, does HIV cause aids?

DR. GERDES: I guess that is a controversial question.

MR. SCHECK: Objection, your Honor, irrelevant.

THE COURT: I think he testified to that yesterday. It is in the record.

DR. GERDES: HIV does--HIV is--the--

THE COURT: Doctor--

DR. GERDES: The prominent consensus is it does cause aids.

THE COURT: Hold on, hold on. Let's move on to something else.

MR. CLARKE: Very well.

MR. CLARKE: As far as this HIV testing in your laboratory, have there been sort of two phrases using that HIV testing using PCR?

DR. GERDES: I'm not sure what you are getting at.

MR. CLARKE: Okay. As far as HIV testing, how do you conduct that testing just in terms of the technology used?

DR. GERDES: At the present time for the purpose of screening donors, if that is what you are asking me, we use what is called a serological technique which is looking at antibodies as opposed to looking at DNA.

MR. CLARKE: In broad terms would that be comparable, as far as the broad technology, to the serology testing conducted by the Los Angeles Police Department in this case?

DR. GERDES: I guess so.

MR. CLARKE: As far as that testing, did that then lead to a different form or different method of testing for HIV in your laboratory?

DR. GERDES: Well, it didn't really lead to it. It is just that that particular way of looking for a virus is an indirect way of looking for the virus. It just simply says that if you are exposed to a virus, you make an antibody which is part of your recognizing that foreign organisms and responding to it and so you can look for that as a marker to indicate that perhaps you've been exposed to that virus, but it doesn't tell you really if you are--if the person is infectious, so the better way is to look directly at the nucleic acid which is the infectious part of the virus.

MR. CLARKE: All right. So we can refer to one method as an indirect method and one method as a direct method?

DR. GERDES: Correct.

MR. CLARKE: As far as the incorrect method, what error rate did that method have, as used in your laboratory?

DR. GERDES: Well, any of these are basically tests that are clinical diagnostic kits and before those are released for that purpose in any laboratory the FDA goes through validation studies that define what is known as the specificity and sensitivity of a test kit and the specificity means how specific is it to what you are looking for. That is, do you only detect aids or maybe in certain clinical situations might you get a falsification that it is positive but it really isn't aids. And as far as sensitivity, it says how many people who are infected are truly identified as being infected, so in any one of the aspects of any test, any laboratory test, is that none of them are perfect and what you need to do is identify the parameters and the guidelines that allow you to wait to determine how much weight to put on that test. So we use that kit, and the error rate that was reported for that kit, I think the original kit was probably 98 percent specific and 98 or 99 percent sensitive.

MR. CLARKE: Isn't it correct that the earlier method, the indirect method, had an error rate of between ten and fifteen percent?

DR. GERDES: I don't believe it was that high--

MR. CLARKE: Haven't you previously testified--

DR. GERDES: --for HIV.

MR. CLARKE: Haven't you previously testified that the error rate for the earlier technique was between ten and fifteen percent?

DR. GERDES: I believe I was talking about--I may have been talking about HCV there, not HIV.

MR. CLARKE: HCV?

DR. GERDES: The early kits on that had a higher false positive rate and it has to do with the fact that you are looking for a virus that is found very infrequently in the population, so it is called low incidence, and that creates a problem in terms of--of this false positive situation.

MR. CLARKE: Is an error rate of ten to fifteen percent in your view acceptable?

DR. GERDES: No.

MR. CLARKE: Let's move to the newer form of HIV testing. That is the direct method?

DR. GERDES: Yes.

MR. CLARKE: Is that the term that we can use?

DR. GERDES: Yes.

MR. CLARKE: Does it have an error rate also?

DR. GERDES: Umm, it--there is no FDA approved test for that, so there is nothing published in terms of what that rate is. I'm sure it will have an error rate.

MR. CLARKE: Haven't you determined in your own lab that with regard to this second form of HIV testing that you encountered an error rate of between two and five percent?

DR. GERDES: For PCR testing?

MR. CLARKE: Correct.

DR. GERDES: No, we haven't measured an error rate.

MR. CLARKE: Have you in fact encountered an error rate of between two and five percent for any of your testing in your laboratory that you use that is techniques used in case work?

DR. GERDES: I think there are--you can find blind trials, for instance, of PCR testing, where error rates for detecting viruses are--are that high perhaps.

MR. CLARKE: And are these techniques that are still used in case work?

DR. GERDES: They are used and what you need to know is what the error rate is. The important thing is knowing the error rate so that you can look at whatever the data is and properly evaluate how much weight to put onto it based upon what your probability of making a mistake is.

MR. CLARKE: In other words, would an error rate of, let's say, one to two percent, that is a portion of what a doctor may use in counseling a patient about whether that patient has a disease or not?

DR. GERDES: They take that into consideration or should that take--should take that into consideration. If a test result doesn't seem to fit with their clinical impression, they would retest.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: All right. Dr. Gerdes, I'm going to ask to shift your attention to the DQ-Alpha marker. I think we spoke a little bit about it earlier. It is your opinion, isn't it, that there is absolutely nothing scientifically suspect about the DQ-Alpha gene?

DR. GERDES: Nothing about the gene, no.

MR. CLARKE: How many laboratories are tested for DQ-Alpha in forensics, to your knowledge?

DR. GERDES: I'm sure there are on the order of a hundred or more.

MR. CLARKE: You've actually personally. That is. Your laboratory. Looked at the DQ-Alpha marker, I believe you described that yesterday?

DR. GERDES: With a direct dot-blot, yes; not with this kit.

MR. CLARKE: By the other dot-blotting method?

DR. GERDES: Yes.

MR. CLARKE: Your laboratory does more work with this other marker closely related called DQ-beta, correct?

DR. GERDES: Correct.

MR. CLARKE: That is because it has more different forms than DQ-Alpha does?

DR. GERDES: It is more polymorphic and it is more relevant to the reason we look for it, which is for matching in transplants.

MR. CLARKE: In other words, for your purposes DQ-beta is more informative in your laboratory than DQ-Alpha because it gives you more information about what you are in particular looking for?

DR. GERDES: Correct.

MR. CLARKE: Your experience, as far as DQ-Alpha is concerned, comes primarily from cases that you've looked at in your role as a Defense consultant, correct?

DR. GERDES: In terms of this kit, yes.

MR. CLARKE: You have never used the kit, correct?

DR. GERDES: That's correct.

MR. CLARKE: And I'm referring to the kit manufactured by Roche or developed by Roche, manufactured--marketed by Perkin Elmer used by all three laboratories in this case, correct?

DR. GERDES: Correct.

MR. CLARKE: Cellmark, Department of Justice and the LAPD?

DR. GERDES: Correct.

MR. CLARKE: To your knowledge is this kit being used around the world in forensic analysis?

DR. GERDES: I believe it is being used in other countries.

MR. CLARKE: Now, you express the fact that you are familiar with the user guide; is that right?

DR. GERDES: Yes.

MR. CLARKE: And is that--I think we have brought this up before. Does it look like what I have entitled "Amplitype User Guide"?

DR. GERDES: That looks like the cover, yes.

MR. CLARKE: Is that something that one can obtain from Perkin Elmer?

DR. GERDES: Yes.

MR. CLARKE: To act as a guide in conducting this test?

DR. GERDES: That's correct.

MR. CLARKE: In your opinion that is a good guide; isn't that your opinion?

DR. GERDES: I believe there are--in general. There are certain specific areas of it that I disagree with, but in general it is a good guide.

MR. CLARKE: Are there any publications, to your knowledge, scientific publications, showing that the use of the Roche kit, DQ-Alpha kit, is unreliable?

MR. SCHECK: Objection, vague.

THE COURT: Overruled.

DR. GERDES: There are no publications that would specifically conclude that it is totally unreliable. There are numbers of publications that discuss the contamination issues and other issues we brought up.

MR. CLARKE: Do you use kits in your laboratory typing, any kits?

DR. GERDES: We use clinical kits, yes.

MR. CLARKE: Is the use of kits in a clinical laboratory common?

DR. GERDES: It is.

MR. CLARKE: Do you in fact use a kit in your own laboratory developed and manufactured by Roche?

DR. GERDES: The chlymadia kit, yes.

MR. CLARKE: There are, in this user guide--and actually let's talk about two things. First the user guide itself, it contains protocols on how to conduct PCR DQ-Alpha typing, correct?

DR. GERDES: Yes. It is sort of the cookbook, if you will.

MR. CLARKE: There is also a second item that comes with the kit, correct, and it is a different document from this user guide?

DR. GERDES: The package insert?

MR. CLARKE: What is the package insert?

DR. GERDES: Well, that is--it comes with the kit and it is pretty much abbreviated version of this larger user guide. It also describes more succinctly how you would set up the test.

MR. CLARKE: In other words, it is also a cookbook but it is kind of directly relevant to how to do each step?

DR. GERDES: Yes.

MR. CLARKE: It is your opinion, is it not, that the user guide and the package insert describe correct scientific procedures for this test?

DR. GERDES: The procedures for setting it up, certainly I agree with those.

MR. CLARKE: All right. Would this be an appropriate time, your Honor?

THE COURT: All right. Ladies and gentlemen, we are going to take to our recess for the lunch hour. Dr. Gerdes, you can step down. All right. Ladies and gentlemen, please remember all of my admonitions to you. Don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. We will stand in recess for an hour and a half until 1:30 and at that time we take up the Stockdale issue, the motion.

MS. CLARK: All right.

THE COURT: All right. All right. Have a nice lunch. We will see you back at 1:30.

(At 12:00 P.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; THURSDAY, AUGUST 3, 1995 1:30 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.) (Christine M. Olson, CSR no. 2378, official reporter.)

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

THE COURT: Back on the record in the Simpson matter. All parties are again present. The jury is not present. All right. This is a--let's have it quiet in the courtroom, please. This is a motion to compel the Defense to produce an audio cassette from one Gretchen Stockdale for inspection and copying. All right. I will hear from the People.

MS. CLARK: Yes, your Honor. I think that I would like to save the Court some time. The Court has read our moving papers. If I may, I would like to waive my first argument to the Court and respond to Mr. Uelmen's argument, if that is acceptable.

THE COURT: All right.

MR. UELMEN: Well, your Honor, what we have here is a tempest in a teapot I think, but there is an important principle at stake and the principle involves the continuous efforts of the Prosecution to push this concept of reciprocal discovery beyond the constitutional limits and turn the Defense into agents or investigators for the Prosecution. What we have here is in the normal course of investigation of the Defense case an interview of a witness by the name of Gretchen Stockdale who informed us last September that on the evening of June 12th she received a telephone message on her message machine from the Defendant, from Mr. Simpson at 7:35 P.M. the message has been reproduced in a word for word transcript in the New York Daily News. The message was simply a call from Mr. Simpson indicating: "Hey, Gretchen, sweetheart, it is Orenthal James who is finally at a place in his life where he is like totally, totally unattached with everybody" and then a laugh. "In any event, I've got a Sunday evening, I'd love--I guess I'm catching a redeye at midnight or something to Chicago, but I will be back Monday night. If you leave me a message, leave it on" and then leaving a telephone number to call back. So of course we knew of this prior to trial. We asked Miss Stockdale for a copy of the message and she gave us a cassette tape on which she had copied the message, but she retained the original telephone mini cassette and we were led to believe that what we had was simply a copy of what she still had on her recording message machine. The--the contemplation of the Defense was actually at one point to call Miss Stockdale as a Defense witness because we regard this of course as exculpatory evidence, that at 7:30 on the night of the homicide Mr. Simpson is calling a lady friend to see if she is available to get together, that certainly murder or mayhem was not on his mind when he made that telephone call. We decided not to use this in our case in chief, so of course there was who obligation to turn any of this material over. The reciprocal discovery law simply requires us to turn over the evidence we intend to present at trial and the statements of the witnesses we intend to call at trial and we did not intend and do not intend to call Gretchen Stockdale as a witness. Now, the Prosecution learned of the existence of Miss Stockdale and learned of the existence of this telephone message before they rested their case and they apparently decided not to use it either. So the request at this point in trial for the production of this tape is--is somewhat of a mystery. No. 1, it certainly doesn't come under the reciprocal discovery law. This is not evidence that we are required to produce under the reciprocal discovery law and I think they concede that in their moving papers. The only authority they rely on to require the production of this tape is Sanchez and Meredith which deal with the Defense's obligation not to conceal inculpatory evidence from the Prosecution. Sanchez involved literally a written confession by the Defendant and a murder checklist, highly incriminating inculpatory evidence that the Defense took possession of and concededly knew when they were taking possession of it that they then had the only copies available, and their retention of that evidence would have deprived the Prosecution of any access to that evidence. Here of course we have evidence that is available. They know of Miss Stockdale's existence. They have available an accurate transcription of the tape. It is too late to call her.

It certainly does not appear relevant as any sort of rebuttal at this point, so it is not even at this point any longer admissible evidence. But even if it were, it is readily available to the Prosecution. So on that basis, we would contend we have no obligation to preserve or to produce this evidence for the Prosecution. If we did, then your Honor would have to say that everything that the Defense has in its possession that we are not going to put on in our case that we think might be of some conceivable use to the Prosecution we should now turn over so we can help strengthen their case, and that is not the point of reciprocal discovery.

THE COURT: Thank you, Mr. Uelmen. Miss Clark. What I'm most concerned about is the fact that Miss Stockdale has apparently been known to both sides for a considerable period of time, certainly prior to the Prosecution resting, and that what the Defense has in its possession is a copy, not the original.

MS. CLARK: That is not the information we have, your Honor.

THE COURT: All right.

MS. CLARK: We did in fact speak to Miss Stockdale in June. I don't know what exactly was known to the Prosecution about her involvement with the Defendant or the tape. I myself only learned of the tape very recently, its existence. Nevertheless--

THE COURT: Well, the problem is that the transcript of the tape was published in the New York Daily News in mid-May of 1995.

MS. CLARK: Uh-huh, yeah, I am aware of that, your Honor, but the transcript, a cold transcript cannot tell the Prosecution what is the tone of voice, what--how it sounds, where the call is made from, which might be very telling.

THE COURT: Well, the issue is when were you aware of it and is this the original?

MS. CLARK: Yes, your Honor. No--first of all, the information we have from Miss Stockdale is that they have the original. She turned it over to Mr. Pavelic and has no copy with her any more, so there is to way for the People to get it except through the Defense because they have the only one. And that is what she told our investigator. We have that report attached to our moving papers, so there is no other way for to us get it. Now, furthermore, whether we knew of it or not, the Defense had the obligation to turn this over, and let me explain why, your Honor. I'm very troubled by Defense counsel's characterization of his duties regarding discovery. The discovery obligations that the Defense has with respect to this issue are framed most appropriately under People versus Meredith, not Sanchez, and not prop 115. The Defense is not required to act as our agents, that is clear, and no one argues to the contrary. But when physical evidence comes into the possession of the Defense and thereby alters it either by means of reasons of its location, its discoverability or its condition, they are required to put the People in the same position as if they had not altered it by any of those means. By taking into his possession the tape that Miss Stockdale had, Mr. Pavelic altered the condition by means of its location and made it undiscoverable by the People. By no means of investigation could we ever have obtained that other than the means we are attempting to use through this Court, which is a means which is a discovery motion. It is in their possession. Were there some other means of getting ahold of it, we would have done so, but we have been prevented from doing so. Under People versus Meredith the Defense is now required to put it back into that same position at the very least by giving to it Miss Stockdale. I submit that Mr. Pavelic should come into court and divulge the whereabouts of that tape. Certainly we are not to be put in a position of having a tape rendered undiscoverable by the fact that the Defense has kept it and secreted it. Now counsel has an interesting take on what the obligations of Defense counsel are in saying it is exculpatory therefore I don't have to turn it over. If we accept that proposition, your Honor, then all the Defense has to do to avoid their obligation is say, well, but it is exculpatory, we don't have to turn it over. Well, if that is true, the murderer wrote a letter admitting that he killed her, but you know, we don't have to turn it over because we think it is exculpatory, it shows evidence of mental state or mental defense therefore it is exculpatory. You can see how you can take that sort of thing to its logical extreme at which point they would have no obligation under Meredith at all.

THE COURT: Fundamentally the bottom line here that I have to know before I can rule on this, is this the original or is it a copy? The report from Dana Thompson indicates in a hearsay declaration--in fact, it is a report, it is not even a declaration--that Miss Stockdale indicated to him on June the 12th that the--excuse me.

MS. CLARK: 21st.

THE COURT: Excuse me, June 21st, that this--the copy that was given to Mr. Pavelic was the only copy of that tape or the only tape-recording in her possession of that phone call.

MS. CLARK: Right.

THE COURT: What I've heard from Mr. Uelmen is that, no, this is a copy of a micro cassette.

MS. CLARK: We have--

THE COURT: Which some phone machines are and some machines aren't, so I have two hearsay statements that are in conflict with each other factually.

MS. CLARK: Assume--

THE COURT: If Mr. Uelmen says all they have is a copy that was given to them and you have equal access to the same source, then his side wins. If you are correct that this is the only tape-recording of that conversation, then you are right, it is real evidence and under Meredith you are entitled to it, I agree, but I have a factual dispute here that I can't resolve.

MS. CLARK: But your Honor, why we would bring a motion before the Court if we had equal access to it? Why bother? We don't need this, we don't need to file more paper. We have killed enough trees from this case. The Court has heard from us enough through oral argument that we don't need to wear out our welcome further. There is no need to bring this motion. We did because we can't get it because the Defense has it.

THE COURT: The point that I'm making is that I have a factual dispute that all I have before me are hearsay statement from you and a representation from counsel that is contradictory. That is what I've got.

MS. CLARK: Then we are going to have a hearing.

THE COURT: Looks that way.

MS. CLARK: Darn. Okay.

THE COURT: Miss Stockdale is available?

MS. CLARK: Yes, yes, okay. When would you like it, your Honor?

MR. UELMEN: I would only add, your Honor, that you have two other things. You know that the availability of this information from Mrs.--from Miss Stockdale was equally available to the Prosecution. They have the record showing the telephone call made on June 12th. They could have gone to Miss Stockdale, just as we did, and we also know that the daily news was apparently able to obtain a tape and record a verbatim transcript of this telephone call, so there must be another copy out there somewhere.

THE COURT: Must be.

MS. CLARK: Must be, but if we can't get our hands on it, then what good does that do.

THE COURT: Well, have you served Miss Stockdale with an SDT or a subpoena?

MS. CLARK: We had--there was an issue that we conferred on and I believe that we have. I believe that we have, your Honor. We conferred about what would be the best method to try and elicit this from her, and I believe we filed an SDT and then we brought the motion before the Court because that was not successful. So I think what we have to do is--

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: All right. This hearing will take all of ten minutes.

MS. CLARK: I am informed, your Honor, that we--she told us when we served the SDT on her that she did not have it, so this hearing would take less than ten minutes.

THE COURT: Ten minutes, all right.

MS. CLARK: All right. So when would you like--

THE COURT: Mr. Uelmen, when are you going to be available?

MR. UELMEN: I will be back next Tuesday, your Honor. I believe we have already calendared some hearings for Tuesday afternoon.

THE COURT: Next Tuesday.

MS. CLARK: What time would you like, your Honor?

THE COURT: Well, either before or after on Tuesday.

MS. CLARK: Sounds great.

THE COURT: Like I say, there is a factual determination.

MS. CLARK: Right.

THE COURT: Where is the original tape?

MS. CLARK: Right.

THE COURT: Right.

MS. CLARK: Right. It should be very simple. I will get Miss Stockdale.

THE COURT: Since we all agree it is a simple factual issue, let's move on to the jury.

MS. CLARK: Thank you.

THE COURT: All right. Deputy Magnera.

(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 afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: Dr. Gerdes, would you resume the witness stand, please.

John Gerdes, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: All right. The record should reflect Dr. John Gerdes is on the witness stand undergoing cross-examination by Mr. Clarke. Good afternoon again, doctor.

DR. GERDES: Good afternoon.

THE COURT: You are reminded, sir, you are still under oath. And Mr. Clarke, you may continue with your cross-examination.

MR. CLARKE: Thank you, your Honor. Good afternoon again, ladies and gentlemen.

CROSS-EXAMINATION (RESUMED) BY MR. CLARKE

MR. CLARKE: Dr. Gerdes, just going back for a moment, if I can, you described this morning how as far as your paternity testing in your lab that you use databases to calculate some numbers to describe how rare a match is between an alleged father, let's say, and a child, correct?

DR. GERDES: Using a different type of statistics, that's correct.

MR. CLARKE: As far as that method is concerned, do you use databases to make that calculation?

DR. GERDES: Yes.

MR. CLARKE: Where are the databases from that you use in your laboratory for that purpose?

MR. SCHECK: Objection, beyond the scope.

THE COURT: Overruled.

DR. GERDES: The database we use is obtained from life codes.

MR. CLARKE: Is life codes a forensic laboratory?

DR. GERDES: They do forensic testing, yes.

MR. CLARKE: Do you use any other database sets other than those from life codes?

DR. GERDES: We have our own database as well, but we generally use the life codes database.

MR. CLARKE: Now, I would like to shift your attention, if I could, to polymarkers. We discussed a little bit earlier that a polymarker consists of more than one genetic marker; is that right?

DR. GERDES: That's correct.

MR. CLARKE: How many does it consist of?

DR. GERDES: Five.

MR. CLARKE: As far as this polymarker is concerned, is it also a test that is used using a kit?

DR. GERDES: Yes, it is.

MR. CLARKE: And does Roche in fact manufacture, or through Perkin Elmer, market the particular kit that is used to type the polymarkers?

DR. GERDES: They do.

MR. CLARKE: As far as your own personal experience have you used that particular polymarker kit?

DR. GERDES: We haven't used it for any case work, but I have had an occasion to run one kit's worth which is a hundred samples.

MR. CLARKE: So you have used one kit and you have run a hundred samples through the polymarkers?

DR. GERDES: I'm not even sure we ran all of them, but we have run at least half that amount I would say.

MR. CLARKE: So something less than a hundred samples?

DR. GERDES: Something less than a hundred.

MR. CLARKE: Does that constitute then your personal familiarity with the polymarker kit?

DR. GERDES: As far as actually running it, yes.

MR. CLARKE: You haven't done any other testing using any other techniques for these five genetic markers, have you?

DR. GERDES: No.

MR. CLARKE: Other than the one time with the kit?

DR. GERDES: No.

MR. CLARKE: As far as presentations, and this would be lectures, have you attended any lectures or presentations reporting information about validating the use of the polymarker in forensics?

DR. GERDES: I haven't attended any lectures or meetings. Is that what you are saying?

MR. CLARKE: Yes, any presentations?

DR. GERDES: No.

MR. CLARKE: This particular set of five genetic markers, are they all amplified at the same time using this thermalcycler, the machine that actually copies the DNA over and over again?

DR. GERDES: Yes.

MR. CLARKE: Is there anything unique about that to forensics as far as multiplying more than one marker at the same time?

DR. GERDES: It is done with genetic applications as well.

MR. CLARKE: So in other words, this amplifying a number of markers at the same time is also used in disease diagnosis, correct?

DR. GERDES: Yes.

MR. CLARKE: That would be a clinical use?

DR. GERDES: Yes.

MR. CLARKE: As far as these markers themselves, are they simply five more genetic markers that are used to type samples in a forensic case?

DR. GERDES: Yes.

MR. CLARKE: In other words, there is nothing unique about them in comparison to DQ-Alpha?

DR. GERDES: Other than they are different gene--different genes.

MR. CLARKE: And then in that same vein I would like to turn your attention to D1S80. Have you ever tested that particular marker in your laboratory?

DR. GERDES: No.

MR. CLARKE: Have you bought or used the kit--well, let me rephrase. As far as this particular marker, is it also tested in kit form commonly?

DR. GERDES: Yes.

MR. CLARKE: And is that again another kit marketed by Perkin Elmer, manufactured by Roche?

DR. GERDES: It is.

MR. CLARKE: Have you ever bought or used that particular kit?

DR. GERDES: No.

MR. CLARKE: Is that again simply another marker that is available for use in terms of being another particular genetic marker in addition to DQ-Alpha and the five polymarkers?

DR. GERDES: Yes.

MR. CLARKE: Is there anything unique about D1S80 that makes it a good or bad marker?

DR. GERDES: Umm, that particular marker is a little different. It doesn't use the dot-blot detection methodology. It is a little different detection and that is the only major difference.

MR. CLARKE: So in other words, the way that the marker is actually typed is a little bit different than DQ-Alpha and the polymarkers, right?

DR. GERDES: That's correct.

MR. CLARKE: Is it actually read--and you may have read testimony and descriptions of D1S80 results. Is it actually read a little more like the RFLP method?

DR. GERDES: It is.

MR. CLARKE: And there is nothing wrong with utilizing that particular method of telling different types instead using, let's say, a dot-blotting technique?

MR. SCHECK: Objection to the wrong--vague question, calls for speculation.

THE COURT: Sustained. Rephrase the question.

MR. CLARKE: As far as typing D1S80 by this method, that is more like RFLP typing, is there anything unreliable about that technique?

DR. GERDES: All of these are--again, the point is that they are all PCR-based tests, they are all susceptible to the dangers because of the sensitivity of the test.

MR. CLARKE: Well, just referring you now to the way that it is typed, setting aside your concerns that you've expressed, is there anything different about typing it by the more RFLP type banding pattern method versus simply dot-blotting it?

DR. GERDES: Well, it is different. There is nothing wrong with it, if that is what you are--as far as that type of detection system.

MR. CLARKE: Have you ever--and you have described--let me ask one question first. You've described the fact that in your laboratory you use was it FDA-approved tests?

DR. GERDES: The clinical testing the majority of them are FDA approved, yes.

MR. CLARKE: Okay. Is there anything about FDA approval that means you either can or can't use it in a clinical setting?

DR. GERDES: The regulation is in terms of being able to market a kit for the purpose of clinical testing. The FDA--a clinical lab can run a test that is not FDA approved, they have to just do their own validation and satisfy CLIA that that has been done.

MR. CLARKE: Do you do any testing in your laboratory using techniques that are not FDA approved?

DR. GERDES: Yes.

MR. CLARKE: For example, what?

DR. GERDES: The CMV tests for PCR.

MR. CLARKE: And this is a test that you use in case work with samples that come into the lab to determine whether the CMV virus is present at sufficient levels that some medical danger may exist?

DR. GERDES: That's correct.

MR. CLARKE: Are there any other tests that you use in your laboratory that are not FDA approved?

DR. GERDES: None that come to mind at the moment.

MR. CLARKE: I may--I don't believe I have asked. As far as the CMV testing itself, what percentage roughly of the case work in your laboratory does it constitute?

DR. GERDES: You mean in terms of HLA and everything else?

MR. CLARKE: Yes, of case work?

DR. GERDES: Less than ten percent.

MR. CLARKE: Is it your testimony that unless a test is FDA approved it shouldn't be used?

DR. GERDES: No. The point behind FDA approval is it is generally considered as the ultimate validation for a clinical-based test. That doesn't mean that testing can't be done just because it isn't FDA approved.

MR. CLARKE: And as far as the forensic tests used in this case, they don't have FDA approval, correct?

DR. GERDES: The FDA does not approve forensic-based testing.

MR. CLARKE: The absence of that FDA approval does not mean that the tests are unreliable simply because they don't have FDA approval, correct?

DR. GERDES: That's correct.

MR. CLARKE: Is it correct, Dr. Gerdes, that one general measure of scientific acceptability of a test is the number of labs who are using the technology and cross-checking one another?

DR. GERDES: That is one way of looking at it.

MR. CLARKE: Is it also correct that another measure of scientific acceptability of a test is the number of publications that have stated in fact that the test is reliable and it can be reproduced?

DR. GERDES: That would be one aspect.

MR. CLARKE: Are you aware of any publications that demonstrate that if properly used the DQ-Alpha typing kit produces proper, accurate and reliable results on forensic samples?

DR. GERDES: There are publications in the forensic literature that state that.

MR. CLARKE: Are you aware of any publications that demonstrate to the contrary?

DR. GERDES: As I mentioned earlier, there are numerous publications that deal with and discuss the contamination issues, the sensitivity issues, that we've gone over a number of times here. None of them will have--have come straight out and said that you shouldn't use the kit.

MR. CLARKE: Are there any publications demonstrating the scientific unacceptability of using the polymarker kit in forensic samples?

DR. GERDES: No.

MR. CLARKE: Are there any publications demonstrating the fact that use of the D1S80 typing kit produces unreliable and inaccurate results?

DR. GERDES: Again, there are numerous publications that discuss the problems. None of them come right out and say you shouldn't use the kit.

MR. CLARKE: I would like to talk with you a moment about peer review. You are familiar with the term "Peer review"?

DR. GERDES: Yes.

MR. CLARKE: What does "Peer review" mean?

DR. GERDES: It is a process where if you are going to publish an article, the article is sent to a number of reviewers who are your peers, that is, people who have an equivalent training, and they will evaluate that, criticize it, make suggestions, and before the article can be published it has to be approved by a majority of those peers.

MR. CLARKE: The peer review process is an important one as far as scientific literature, correct?

DR. GERDES: It is important in academics.

MR. CLARKE: Is it in fact one of the ways the scientific community validates a technique to determine its accuracy and reliability?

DR. GERDES: Not necessarily. I mean, you are not validating the technique. You are just basically cross-checking with a number of different--a number of your peers to see if your statements are defensible scientifically.

MR. CLARKE: Doesn't this publication process allow other scientists to look at the findings of scientists who publish this material to be able to evaluate whether or not a technique in fact should be used?

DR. GERDES: They--they--the publication usually is not strictly being offered for the purpose of a flat statement that a particular thing can be used. I mean, it is generally a scientific documentation of observations.

MR. CLARKE: Incidentally--I'm sorry.

DR. GERDES: And the peers will look at these observations and see if they have been analyzed in a scientific manner and whether the conclusions are reasonable.

MR. CLARKE: You mention the fact that there were publications that talk about contamination involving PCR, correct?

DR. GERDES: Yes.

MR. CLARKE: Those publications serve as warnings to individuals who perform the typing process so that they can incorporate what that publication is showing into their own wealth of knowledge; is that correct?

DR. GERDES: Well, it depends on the publication. That is too general of a statement. There are publications which are just blind trials, if you will, where--on PCR where the kit was sent, and then there was an observation of contamination. It was simply reported that so many labs had contamination.

MR. CLARKE: Are you, in your opinion, familiar with the DQ-Alpha forensic typing literature?

DR. GERDES: Yes.

MR. CLARKE: That is extensive, isn't it?

DR. GERDES: Fairly, yes.

MR. CLARKE: I'm sorry. May I have a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Gerdes, are you familiar with a book entitled "PCR technology"?

DR. GERDES: Yes.

MR. CLARKE: And are you familiar with who the editor of that book is?

DR. GERDES: I believe it is Henry Erlich.

MR. CLARKE: Who is Henry Erlich?

DR. GERDES: Henry Erlich is an individual who was at Cetus at the time this technology was being developed at that particular company and has done work in the area of HLA typing.

MR. CLARKE: And HLA--I'm sorry, go ahead.

DR. GERDES: HLA typing.

MR. CLARKE: HLA again, not only DQ-Alpha, but also at least one of the markers typed in your laboratory?

DR. GERDES: Yes, that whole gene complex.

MR. CLARKE: Have you read that book?

DR. GERDES: I have read most of it.

MR. CLARKE: There is a chapter in that book entitled "Applications of PCR to the analysis of biological evidence." Are you familiar with that?

DR. GERDES: Yes.

MR. CLARKE: Have you read that chapter?

DR. GERDES: Yes.

MR. CLARKE: Do you recall who the authors of that chapter are?

DR. GERDES: I believe Henry Erlich is one of the authors if you are referring to the same one. Is that what you are referring to?

MR. CLARKE: Yes.

DR. GERDES: I don't recall the other authors.

MR. CLARKE: Is Cecelia von Beroldingen an author?

DR. GERDES: Yes.

MR. CLARKE: Russell Higuchi?

DR. GERDES: Yes.

MR. CLARKE: George Sensabaugh?

DR. GERDES: Yes.

MR. CLARKE: And Edward Blake?

DR. GERDES: Yes.

MR. CLARKE: With regard to that article, in your view that is an article demonstrating the validity of PCR forensic typing using the DQ-Alpha marker?

DR. GERDES: I think it discusses the--the issues. I don't think it justifies the validity based on that article. It is basically a review article.

MR. CLARKE: Okay. Does it discuss in fact the uses of PCR to type samples using markers including DQ-Alpha?

DR. GERDES: It does.

MR. CLARKE: Are you also familiar with an article entitled "Polymerase chain reaction PCR amplification and human leukocyte antigen HLA DQ-Alpha oligonucleotide typing on biological evidence samples: Casework experience."

DR. GERDES: Yes, I am familiar with that.

MR. CLARKE: And you have read that particular publication?

DR. GERDES: That is Ed Blake's article, correct?

MR. CLARKE: Yes. Are there other authors as well?

DR. GERDES: Yes.

MR. CLARKE: And do you rely on that article in terms of any of the opinions that you've offered in this court?

DR. GERDES: No.

MR. CLARKE: Do you in fact reject what is written in that particular publication?

DR. GERDES: I consider that publication a one-side--one-sided slant on the cases. It discusses a number of cases, several of which I have been involved with, where there were highly contested issues which are not discussed in that article.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Gerdes, with regard to these publications about DQ-Alpha--and again, there are a large number of them, correct?

DR. GERDES: Yes.

MR. CLARKE: Do you rely on any of those publications that in fact demonstrate this reliability of the DQ-Alpha typing process?

MR. SCHECK: Objection, vague.

THE COURT: Overruled.

DR. GERDES: I'm familiar with those publications. I think it is a misstatement to say I rely upon them.

MR. CLARKE: Well, do you in fact reject their findings about reliability?

DR. GERDES: I accept their observations of problems and discussions of those in certain instances. I disagree with certain other statements and I disagree with their conclusions in some instances. It is very general. You would have to take them one at a time.

MR. CLARKE: Okay. Are you familiar with a publication entitled "DNA typing from single hairs"?

DR. GERDES: Yes.

MR. CLARKE: By Russell Higuchi and other authors as well?

DR. GERDES: Yes.

MR. CLARKE: Have you read that particular publication?

DR. GERDES: Yes, I have.

MR. CLARKE: In terms of its findings of reliability do you reject the author's conclusions?

MR. SCHECK: Objection, too vague.

THE COURT: Overruled.

DR. GERDES: Well, that particular paper is simply a demonstration paper. It is a paper that the overall bottom line is that it shows that it is possible to obtain a DNA result on a single hair, and that part of the paper I don't disagree with. That certainly is possible. It doesn't discuss the difficulties that there would be in taking that technology and using it on a routine basis in crime scenes.

MR. CLARKE: Are you familiar with a publication entitled "Genetic markers in human bone: I, deoxyribonucleic acid DNA analysis" by Henry Lee and others?

DR. GERDES: I am familiar with that.

MR. CLARKE: Have you read that publication?

DR. GERDES: Yes.

MR. CLARKE: Do the authors of that publication include individuals at Cellmark diagnostics?

DR. GERDES: I believe so.

MR. CLARKE: Does the name George Herrin sound familiar?

DR. GERDES: Yes.

MR. CLARKE: And to your knowledge was that individual, Mr. Herrin, Dr. Herrin, actually at Cellmark diagnostics at one time?

DR. GERDES: I believe so.

MR. CLARKE: Are you familiar with the name Dr. Daniel garner?

DR. GERDES: Yes.

MR. CLARKE: Who is he?

DR. GERDES: He is--I'm not sure what his exact title is. He is from the FBI and is involved in the DNA--the Department of DNA Testing or whatever they call their department.

MR. CLARKE: Actually Dr. Garner is at Cellmark diagnostics, is he not?

DR. GERDES: I'm sorry. I'm thinking of--yes, okay.

MR. CLARKE: With respect to this publication do you reject Dr. Lee and the other author's conclusions about the reliability of DQ-Alpha typing?

DR. GERDES: Again, I mean that is a demonstration paper that shows that you can use this technique under controlled conditions to identify individuals based on bone. It doesn't discuss the general problems that can occur, the routine application in labs, and it doesn't discuss the aspect of determining whether a specific laboratory may have significant contamination problems which would render those demonstrations of capability invalid.

MR. CLARKE: One more, if I might, Dr. Gerdes. Are you familiar with a publication by the federal Bureau of Investigation entitled "Validation studies on the analysis of the HLA DQ-Alpha locus using the polymerase chain reaction" by Dr. Comey and Dr. Bruce Budowle?

DR. GERDES: I am familiar with that.

MR. CLARKE: Have you read that particular publication?

DR. GERDES: I have.

MR. CLARKE: That publication deals with reliability of DQ-Alpha typing, correct?

DR. GERDES: It does.

MR. CLARKE: That publication also deals with contamination and its effects on typing using forensic samples?

DR. GERDES: Again it is a demonstration paper. What they dealt with in that paper in terms of contamination is one experiment where five tubes were opened on a bench top. They scratched their head over the tubes, closed them up and showed there was no contamination. That is a demonstration. Demonstrates that under those limited number of samples they did not get contamination. From that they conclude that contamination is not an issue. That I disagree with.

MR. CLARKE: We have just discussed approximately five publications; is that right?

DR. GERDES: Yes.

MR. CLARKE: There are many more, are there not?

DR. GERDES: Yes, and most of them are, as I said, demonstration papers that show under controlled conditions and in specific instances in particular laboratories it is possible to obtain a type.

MR. SCHECK: Your Honor, may I--the last article that Mr. Clarke referred to I believe has an exhibit number. It came up in the testimony of Mr. Sims, and I don't have it right here, but I think it would clarify the record if we could identify it by this number so that we can flag it with the other testimony.

THE COURT: It is identified by its title and authors.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Gerdes, you referred to these largely as demonstration papers; is that correct?

DR. GERDES: That is what I consider them.

MR. CLARKE: Have you ever done such a demonstration paper as far as this particular forensic area of typing is concerned?

MR. SCHECK: Objection, asked and answered.

THE COURT: Overruled.

DR. GERDES: No, I haven't published in the forensic area.

MR. CLARKE: Now, I would like to shift your attention, if I could, to the polymarkers. I believe we discussed those a few moments ago. As far as that particular set of five genetic markers, there are similar publications, are there not, in the scientific literature?

DR. GERDES: There are similar demonstration papers. It is a newer system so there are fewer in number.

MR. CLARKE: Are you familiar, for example, with a publication entitled "Evaluation of the amplitype PM DNA test system on forensic case samples"?

DR. GERDES: Who is the author on that?

MR. CLARKE: George Herrin, Nicola Fildes and Rebecca Reynolds?

DR. GERDES: Yes, I am familiar with that article.

MR. CLARKE: Incidentally, PM, is that short for polymarker?

DR. GERDES: Yes.

MR. CLARKE: With respect to that article have you read it?

DR. GERDES: Yes.

MR. CLARKE: With respect to this article also do you reject its findings and conclusions about reliability of the PM typing system?

DR. GERDES: I believe they did 16 samples there. It is a demonstration paper and it is interesting that in one of those 16 samples they had a chance match.

MR. CLARKE: Is this another paper that you consider a demonstration paper?

DR. GERDES: Yes.

MR. CLARKE: In your opinion is this a paper then that does not demonstrate the accuracy and reliability of using the polymarker typing kit on forensic case samples?

DR. GERDES: Well, I think the analogy here that might clarify this whole thing is basically if I--if you have a clinical kit that someone is using, there may have been some publication as far as the use of that kit, but the ultimate test of any kit, of any method, is how it is used in the field. It is just like products. Just because you put a product on the market and someone says that is a good product, it doesn't mean it is a good product until you've had a chance to look at a large number of individuals who use that product, and if it starts to have flaws, those become apparent. And it is a similar thing in forensics or anything else.

MR. CLARKE: What about when many laboratories use the technique and they r each the same conclusions as the authors, does your opinion still hold true under those circumstances?

DR. GERDES: In my opinion we haven't reached that stage where there has been enough testimony and discussion and in-depth analysis of the specific problem of contamination and how that can create errors in a blinded fashion in the forensic community.

MR. CLARKE: In your view courtroom testimony is important in establishing scientific validity?

DR. GERDES: In my view that is--that is like the consumer report. It is what--what--how is it working in the field? We have done these demonstration papers that say it is possible. Now we put it out into the field, we put it on the market. How is it working? What is the feedback from the consumer?

MR. CLARKE: I'm sorry, could I have a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Incidentally, when you refer, Dr. Gerdes, to the first polymarker article, the one we just discussed as being seven laboratories, were you speaking of a different publication?

DR. GERDES: Excuse me?

MR. CLARKE: When you referred to this paper by George Herrin the article on evaluation of the PM system, were you mistaking that paper for another as far as the seven laboratories?

DR. GERDES: Yes. If you can let me look at the paper, I can answer that question.

MR. SCHECK: Your Honor, I would ask now that these be marked so that we can know which ones they are.

THE COURT: Overruled. Why don't you show it to him.

MR. SCHECK: They have shown it to the witness.

MR. CLARKE: Sure. May I approach the witness, your Honor?

THE COURT: You may.

(Brief pause.)

DR. GERDES: No. That is the paper I was referring to. In terms of the false match you mean?

MR. CLARKE: I'm sorry?

DR. GERDES: In terms of the false match?

MR. CLARKE: No, you mentioned seven laboratories?

DR. GERDES: No, I didn't. I said several.

MR. CLARKE: Oh, several, I'm sorry. All right. Are you also familiar with a publication entitled "Consistency and reproducibility of amplitype PM results between seven laboratories: Field trial results"?

DR. GERDES: I am familiar with that.

MR. CLARKE: By Nicola Fildes and Rebecca Reynolds again?

DR. GERDES: Yes.

MR. CLARKE: Have you read that document?

DR. GERDES: Yes.

MR. CLARKE: And do you reject its conclusion about reliability of the PM typing system?

DR. GERDES: Again, it is a demonstration paper.

MR. CLARKE: As you have used the term earlier?

DR. GERDES: Yes.

MR. CLARKE: And lastly, in this area, are you familiar with "Amplitype PM and HLA DQ-Alpha typing from pap smear, semen smear and postcoital slides" by Renee Roy--Dr. Renee Roy and Dr. Rebecca Reynolds?

DR. GERDES: Could I see that?

MR. CLARKE: Sure.

DR. GERDES: I don't believe I have seen this paper.

MR. CLARKE: All right. To your knowledge, other than the publications that I have just described, are there others demonstrating the reliability of PM typing on forensic samples?

DR. GERDES: Umm, there are--there are other demonstration papers that--with regard to the use of the polymarker system.

MR. CLARKE: And you have used that term?

DR. GERDES: Yes.

MR. CLARKE: Can you tell us approximately how many laboratories type the polymarkers in forensic casework?

DR. GERDES: Umm, there are probably hundreds of labs. I don't know an exact figure.

MR. CLARKE: I'm sorry, hundreds?

DR. GERDES: Yes.

MR. CLARKE: Incidentally, all of the publications that I have shown you or described the title that we discussed, with the exception of the last one that you are unfamiliar with, they are all from peer-reviewed scientific publications, correct?

DR. GERDES: That's correct.

MR. CLARKE: And actually the last particular publication I showed you was also in a peer review publication; is that correct?

DR. GERDES: Yes.

MR. CLARKE: And then lastly, with regard to the D1S80 system, are you familiar with similar publications demonstrating the reliability of that particular marker's use in forensics?

DR. GERDES: There are similar demonstration papers discussing the capability of that system to produce a type.

MR. CLARKE: Without going through each of them, would your answers then be the same with regard to those publications, that they are in fact demonstration papers only?

DR. GERDES: Yes.

MR. CLARKE: In your view they in no manner establish the reliability of D1S80 typing on forensic casework?

DR. GERDES: They do not, as I mentioned before. My opinion is the product has to be used to an adequate degree and evaluated in a critical manner, in a critical blinded manner, before you can really determine the errors that are possible with this system.

MR. CLARKE: Can you give us an estimate, for instance, how many cases you think DQ-Alpha typing has been used in in forensic casework just in this country?

DR. GERDES: I'm not aware of how many. I'm sure it is probably in the hundreds.

MR. CLARKE: With--and I believe you described earlier over 100 laboratories use the technique; is that correct?

DR. GERDES: So it is probably even in the thousands.

MR. CLARKE: Isn't it more likely in the many thousands?

THE COURT: That is vague.

DR. GERDES: I--

MR. CLARKE: I don't believe I asked you about D1S80. Are you familiar with approximately how many laboratories use it in casework?

DR. GERDES: Again, that is a newer system. It would be fewer than the DQ-Alpha, but most of the labs who have set up PCR for one system fairly rapidly add the next one.

MR. CLARKE: As far as all of these markers, DQ-Alpha, polymarker and D1S80, is it correct that there have been many presentations about their use in forensic casework, and I'm referring to meetings, lectures, symposia and so forth?

DR. GERDES: Yes.

MR. CLARKE: That is a fairly common event--let me rephrase that if I may. That is a fairly common manner of the scientific community, discussing work, whether in forensics or clinical work, that is, presentations and symposia?

DR. GERDES: Yes.

MR. CLARKE: Do those presentations, conferences and symposia play an important role in not only disseminating but also discussing scientific techniques?

DR. GERDES: Umm, yes.

MR. CLARKE: With regard to polymarker and D1S80 and DQ-Alpha, have you attended any such meetings?

DR. GERDES: No.

MR. CLARKE: You have described how the DQ-Alpha marker was the first marker used following PCR amplification in forensics, correct?

DR. GERDES: Correct.

MR. CLARKE: Are you aware of when that began? When was the first case using PCR DQ-Alpha?

DR. GERDES: I know when the kit was released, approximately, which was in 1990, and I believe that there was a single individual doing typing probably three, four years before that.

MR. CLARKE: Would 1986 be approximately the time of this individual doing that work?

DR. GERDES: That might be the case. PCR was first published in 1985.

MR. CLARKE: This individual--I'm sorry.

DR. GERDES: So--and this individual happened to be working in the same area where the method was developed.

MR. CLARKE: Who was that individual?

DR. GERDES: Ed Blake.

MR. CLARKE: Is it correct or it is correct, isn't it, that when you add more markers, in other words, from DQ-Alpha adding additional markers, like PM and D1S80, that that adding of more markers allows the analyst to cross-check results on individual samples?

DR. GERDES: It allows cross-checking as long as you have totally ruled out the possibility of cross-contamination, because in the case of cross-contamination, remember, you can look at as many markers as you want to and the error is caused by that physical cross-transfer and therefore that type of contamination would not be detected.

MR. CLARKE: Like your clinical use where more markers provide you more information, isn't it also true that adding more markers in a forensic context increases the probabilities that a sample came from one person to the exclusion of others?

DR. GERDES: That's true.

MR. CLARKE: You have previously--I'm sorry--previously said you would like to see more forensic markers added to DQ-Alpha, correct?

DR. GERDES: I think it does add to the capability of detecting the other types of contaminants, which are the--the contaminants due to amplification product carry-over, for instance.

MR. CLARKE: In other words, by adding additional markers you increase your chances of detecting contamination?

DR. GERDES: That's true.

MR. CLARKE: And you so testified in 1990 about it would be good if more markers were added to DQ-Alpha?

DR. GERDES: That's true.

MR. CLARKE: Since that time six additional markers have been added that are routinely used in forensic casework, correct?

DR. GERDES: Correct.

MR. CLARKE: Those six markers that were added to DQ-Alpha were all used in this case; is that right?

DR. GERDES: That's correct. Since that time it has become more abundantly obvious to me that the type of cross-contamination--

MR. CLARKE: Objection, move to strike, your Honor.

THE COURT: Nonresponsive, you are right. Stricken.

MR. CLARKE: As you add more markers, don't you increase the ability to resolve ambiguities or uncertainties about typing results?

DR. GERDES: You increase the capability of resolving ambiguities due to amplification carry-over, that kind of contamination, yes.

MR. CLARKE: Incidentally, you have described in your laboratory about the use of PCR with some sample and also using other techniques, serologic techniques?

DR. GERDES: We do both kind of techniques in our lab, yes.

MR. CLARKE: Well, what I'm really directing my question to is are there any samples that you use PCR with that you will type using serologic techniques?

DR. GERDES: Yes.

MR. CLARKE: Why do you use both of those tests on a given sample?

DR. GERDES: Well, for the specific cases I am thinking of they give you different information, so for instance, if I want to look at a serological marker for cytomegalovirus, that tells me which individual is at higher risk of having this virus become a problem after they receive their transplant. Someone who has antibody to that before they have their transplant is going to be--they have been exposed to that virus in the past, so that gives me information that that is a patient maybe we should follow more closely by PCR to look directly for the virus after the transplant.

MR. CLARKE: Are there any instances in which you use a serologic technique and a PCR technique as a cross-check in any manner?

DR. GERDES: Not at the present time.

MR. CLARKE: Was that true in the past?

DR. GERDES: No.

MR. CLARKE: As far as this use of multiple markers--and you have described the fact that in this case, at least with many samples, seven PCR markers were used, correct?

DR. GERDES: Yes.

MR. CLARKE: Is it correct that serologic techniques that are also used on a given sample, that also adds more markers to act as a cross-check, doesn't it?

DR. GERDES: Well, you are really again looking at something different. You are looking at an antibody which tells you--if we are talking about an infectious agent, that tells you that that person had been exposed in the past. If they are antibody positive--let's take HIV as an example. If they are antibody positive and then you were to do a PCR and you found the presence of the genome of HIV, then that would confirm the antibody test.

MR. CLARKE: You are familiar with the fact that in this case not only was DNA used but also conventional serological techniques; isn't that right?

DR. GERDES: Yes.

MR. CLARKE: Did you examine those conventional serological techniques?

DR. GERDES: No.

MR. CLARKE: If conventional serological techniques were used in this case and results were obtained from stains from genetic markers other than the DNA markers, don't those constitute additional cross-checks of results?

DR. GERDES: Yes.

MR. CLARKE: But you didn't look at any of the serological results?

DR. GERDES: No.

MR. CLARKE: Did you believe it was important to know about any such results?

DR. GERDES: No. My function was to look simply at the science involved and the data involved in PCR.

MR. CLARKE: Did any member of the Defense ever discuss with you the existence of serological results in this case?

DR. GERDES: No.

MR. CLARKE: Is that a factor in your opinion would have any effect whatsoever on any of the opinions you've rendered in this case?

DR. GERDES: No, because my opinions are as to the scientific reliability of the PCR-based testing and the chances of error due to cross-contamination.

MR. CLARKE: Is it your testimony that such cross-contamination would necessarily never be detected by serological techniques?

DR. GERDES: I think it is highly unlikely because PCR is the most sensitive method possible and those items would have very little amount of material.

MR. CLARKE: Well, you have raised the possibility that some of the Bundy blood drops may have been cross-contaminated by other stains; is that correct?

DR. GERDES: Yes.

MR. CLARKE: One of those stains that you've discussed as being possibly cross-contaminated by other material was item no. 52; isn't that correct?

DR. GERDES: That's right.

MR. CLARKE: The amount of DNA in that sample is higher than it is in other blood drops at the Bundy scene, correct; 47, 48, 49 and 50?

DR. GERDES: 52 has approximately 25 nanograms, or I'm not sure what the total yield was, but it has more.

MR. CLARKE: You discussed yesterday the fact that the recommended minimum amount to be used in, for instance, the Roche DQ-Alpha kit, adds two nanograms, correct?

DR. GERDES: Correct.

MR. CLARKE: Results are obtained with less than two nanograms, aren't they?

DR. GERDES: It depends on how much lower than that, but you can, yes.

MR. CLARKE: Going back to the serological techniques, as a scientist wouldn't you want to know all the scientific results on a given bloodstain if you were looking at a bloodstain case?

DR. GERDES: It is not my job to look at this entire case. It was my job to evaluate the reliability of PCR-based DNA testing as an independent piece of evidence.

MR. CLARKE: If you were a serological expert and you were asked to review results on bloodstains from a crime scene, would you want to know about DNA results?

DR. GERDES: It depends upon whether I was an expert or asked to be an expert on whatever area. I would think that that would be crossing areas of expertise.

MR. CLARKE: Dr. Gerdes--

DR. GERDES: I don't have any--any expertise in serological testing.

MR. CLARKE: Dr. Gerdes, aren't all of the results on these bloodstains important to evaluate what happened?

DR. GERDES: I'm sure they are.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: In your view is that good science, not to know all the results?

DR. GERDES: In my view the way a criminal case should be conducted, if there is scientific evidence involved, you should obtain the expert with the most expertise in every specific type of testing and it is up to someone else in the case that is not a scientist to evaluate the meaning of that. It is basically up to the jury to evaluate--as all of those experts come forward and provide their testimony, it is up to the jury to decide how these pieces fit together. I'm only talking about one piece of this puzzle.

MR. CLARKE: Who did you discuss the serological results with?

DR. GERDES: I didn't.

MR. CLARKE: Did you have any knowledge of them even existing?

DR. GERDES: Well, I've heard things on TV, but I have no knowledge or access to specific testing.

MR. CLARKE: Once you heard them on TV, did you feel that there was any need whatsoever to find out what they were?

DR. GERDES: Again, my evaluation is of the PCR-based DNA testing.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: With respect to this area of cross-contamination, is it your testimony that contamination wouldn't be picked up by serological techniques?

DR. GERDES: It depends on the specimen, but I think if it is a specimen with very small amounts, the PCR technique is more sensitive than most serological techniques.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Objection, move to strike. Nonresponsive.

THE COURT: Overruled. Overruled.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: All right. Dr. Gerdes, you have described various forms of contamination in your view; is that correct?

DR. GERDES: Yes.

MR. CLARKE: One of those forms was cross-contamination?

DR. GERDES: That's correct.

MR. CLARKE: One of those forms was carry-over contamination?

DR. GERDES: Correct.

MR. CLARKE: And by "Carry-over" that is from amplified DNA possibly getting into DNA that is lower in amount and unamplified, correct?

DR. GERDES: Correct.

MR. CLARKE: Is it correct that contamination is just as big a problem at your laboratory as it is in forensic laboratories?

DR. GERDES: I don't believe that is true, because of the nature of the specimens that are handled and the way they are handled in forensic labs.

MR. CLARKE: Well, you have contamination in your own laboratory, don't you?

DR. GERDES: Occasionally we will see that, yes.

MR. CLARKE: Do you feel you have a pretty good handle on contamination at your laboratory?

DR. GERDES: Yes. There is a number of differences in the way we handle contamination in a clinical lab as well as the nature of the specimens and that entire board that we talked about.

MR. CLARKE: Excuse me, objection. Nonresponsive, your Honor.

THE COURT: Overruled. The answer will remain. Ask another question.

MR. CLARKE: Dr. Gerdes, with respect to your laboratory, do you continue to offer services to clients, despite these instances of contamination that occur?

DR. GERDES: Yes.

MR. CLARKE: Incidentally, when you are given a sample, how do you receive it?

DR. GERDES: It is received as a sterile blood specimen.

MR. CLARKE: Okay.

DR. GERDES: Or--

MR. CLARKE: You are referring to the actual mechanical manner. How do samples get to your laboratory from somewhere else?

DR. GERDES: They are transported by a courier.

MR. CLARKE: Do you receive any samples that are not transferred by a courier?

DR. GERDES: There are some mailed in.

MR. CLARKE: By what, a package service or a shipment service?

DR. GERDES: Yes. Fed ex or whatever, yes.

MR. CLARKE: Are they packed under ice?

DR. GERDES: Most are not; some might be.

MR. CLARKE: Where could they be coming from? Where do they come from?

DR. GERDES: They come from a variety of hospitals and other sources.

MR. CLARKE: How long a period of time can it be from when that sample is removed from a patient to the time your laboratory receives it?

DR. GERDES: It is recorded in terms of the request form as to when it was drawn and when it is received. It can be up to a day or two.

MR. CLARKE: Is it ever any longer than a day or two?

DR. GERDES: Yes.

MR. CLARKE: How long could it be?

DR. GERDES: (No audible response.)

MR. CLARKE: Or can it be?

DR. GERDES: Well, one of the processes that occurs when a sample arrives in the lab is you--the first thing the technician does is they look at that time, and if it is too long, they will reject the specimen.

MR. CLARKE: What is too long?

DR. GERDES: It depends on the type of test.

MR. CLARKE: Okay. What would be--I'm trying to think in terms of the testing that you do and let's take CMV.

DR. GERDES: Okay.

MR. CLARKE: At what time period would a sample be rejected?

DR. GERDES: In that particular case the DNA of that virus is relatively stable and in a blood specimen that is stored at ambient temperature I would say somewhere on the order of five or six days we would still see no real decrease in the amount of DNA that we could detect to allow is to find that virus.

MR. CLARKE: And at the five or six-day period that would be unrefrigerated for those five or six days?

DR. GERDES: Yes.

MR. CLARKE: You continue to go ahead and use that sample for casework typing?

DR. GERDES: Yes, because we've done previous validation studies to show or assure ourselves that that specimen is still adequate at that point, as long as it is sterile, undamaged, labeled.

MR. CLARKE: In other words, as long the DNA hasn't degraded to the point of not being able to obtain a result, then it is okay to use it?

MR. SCHECK: Objection, that misstates the testimony.

THE COURT: Overruled.

DR. GERDES: You have to remember, blood that is in a sterile blood specimen like that is really fairly--it is not going to degrade, it is not contaminated with bacteria, and it is a different--difference why you would--eventually it would degrade, but basically the problem is the cells that are in that blood specimen, if for instance if we are going to do HLA typing, we need those within 24 hours because the cells start to die and it is not a degradation process. There are other complications as to why and it is specific to each test as to why that specimen would be appropriate not.

MR. CLARKE: You described yesterday the fact that in your view other--strike that. You described yesterday that a forensic protocol required that reference samples be separate in time as far as their extraction of DNA, twenty to thirty minutes from evidence samples. Do you recall that testimony?

DR. GERDES: Yes, yes.

MR. CLARKE: Do you recall also describing that after a reference sample has had DNA extracted from it, that there should be a clean-up with bleach of that area where that is taking place and then evidence samples can be extracted? Do you recall that testimony?

MR. SCHECK: Objection, misstates the testimony in terms of the specifics.

THE COURT: Overruled.

DR. GERDES: I recall that testimony.

MR. CLARKE: What forensic protocol says that?

DR. GERDES: That all--all--the Twgdam guidelines and a variety of protocols from individual labs that I have read specifically state that reference samples should be handled at a separate time and place than the evidence items.

MR. CLARKE: But as far as this procedure of reference samples, cleaning the area with bleach and then extracting DNA from evidence samples, what forensic protocol requires that?

DR. GERDES: Well, it is amazing. None of them say it that specifically. Those are pretty common sense things, though, if you are a microbiologist.

MR. CLARKE: Objection, move to strike, your Honor.

THE COURT: Overruled.

DR. GERDES: Someone who knows about the sensitivity of PCR. I think those are common sense things that you would do.

MR. CLARKE: Dr. Gerdes, what forensic protocol says to do those things?

DR. GERDES: There is no forensic protocol that specifically says to do those things.

MR. CLARKE: When you testified yesterday that a forensic protocol requires that, then were you mistaken?

MR. SCHECK: Misstates the testimony.

THE COURT: Sustained. Rephrase the question.

MR. CLARKE: You described yesterday that a forensic protocol required those steps. Was that then not the case?

DR. GERDES: Basically what I was referring to was the fact that forensic protocols, numerous forensic protocols state that you should handle the reference samples at a separate time and place that evidence items or large amounts of DNA separate than small amounts. And I would have to look in detail in the user guide. I believe there--there is a section in there that discusses these kind of things in the user guide in terms of cleaning up.

MR. CLARKE: Dr. Gerdes, isn't it wiser to extract evidence samples first before reference samples?

DR. GERDES: The main factor you have to keep in mind is to separate them both in time and space. If you are going to be handling them within a fairly close time, it would be advisable to handle the lower concentration specimen before the larger, so in that case, yes.

MR. CLARKE: In other words, it would be better to extract DNA from evidence samples first because of their potential for having low DNA amounts and then reference samples later because they have higher DNA amounts, correct?

DR. GERDES: Yes.

MR. CLARKE: What order was that done in by the Los Angeles Police Department in this case?

DR. GERDES: As far as the handling, the reference sample was handled first. As far as the extraction, it was in the opposite order where the reference sample was handled last.

MR. CLARKE: Dr. Gerdes, isn't it true that Collin Yamauchi extracted the evidence first before the known samples in this case?

DR. GERDES: As far as the extraction, yes. As far as the handling, no.

MR. CLARKE: As far as the extraction of DNA by Collin Yamauchi in the serology room that you have described by photograph, he extracted the lower DNA amount samples first, didn't he?

DR. GERDES: Yes, he did.

MR. CLARKE: He extracted high DNA samples last, didn't he?

DR. GERDES: Yes, he did.

MR. CLARKE: Incidentally, did you ever test any mixed samples in your laboratory?

DR. GERDES: No.

MR. CLARKE: Have you ever conducted any lab--I'm sorry--any testing in your laboratory involving, for instance, amniotic fluid cells?

DR. GERDES: Yes.

MR. CLARKE: What is amniotic fluid?

DR. GERDES: Well, it is the fluid that surrounds the baby and it is used for diagnosis of prenatal--prenatal diagnosis.

MR. CLARKE: In other words, you are looking to find out if a fetus will suffer from any diseases, correct?

DR. GERDES: Correct.

MR. CLARKE: In that process you are attempting to make a clinical diagnosis of whether or not an unborn child will contract, let's say, cystic fibrosis?

DR. GERDES: Yes.

MR. CLARKE: That testing was formerly conducted in your laboratory?

DR. GERDES: We have conducted testing not on the amniotic fluid itself, but we have conducted testing on cells that were grown from that fluid.

MR. CLARKE: Do you continue to do that in your laboratory?

DR. GERDES: Occasionally.

MR. CLARKE: When that type of material is removed from the patient, the pregnant mother, doesn't that material contain a mixture of cells from two different people?

DR. GERDES: It can.

MR. CLARKE: And in fact it can contain a mixture of cells from the pregnant mother?

DR. GERDES: Yes.

MR. CLARKE: And it can contain a mixture of cells from the fetus which is the cellular material you are trying to test, correct?

DR. GERDES: That's correct.

MR. CLARKE: And you have to, in terms of that testing, separate those cells out, don't you?

DR. GERDES: Yes. And in that particular instance you know who the mother is and so that allows you to eliminate that--that source.

MR. CLARKE: Isn't that similar to a sexual assault victim in a criminal case who has been raped?

DR. GERDES: It is in some ways, yes.

MR. CLARKE: And there is a mixture of cellular material in that type of sample as well?

DR. GERDES: Yes.

MR. CLARKE: Yesterday you described the fact that in theory a single cell, one cell from a person, a human, could be copied using PCR. Do you recall that?

DR. GERDES: Yes.

MR. CLARKE: When you stated that in theory, isn't it correct that there are laboratories that do copy single cells outside forensics?

DR. GERDES: Single cells?

MR. CLARKE: Yes.

DR. GERDES: Yes, there are labs who have done that and it is not something that is--it is not very many labs, but there are labs who can do that.

MR. CLARKE: It is not done in forensics, correct?

DR. GERDES: That's correct.

MR. CLARKE: Because one cell is not very much DNA, correct?

DR. GERDES: That's correct.

MR. CLARKE: Isn't it true that the problem of contamination depends to a large extent on how small a sample one is trying to amplify?

DR. GERDES: Yes. The problem of contamination is increased with a smaller sample.

MR. CLARKE: For instance, in typing a single cell, a scientist would have to be extraordinarily careful about contamination, correct?

DR. GERDES: Yes.

MR. CLARKE: And in fact copying one cell would be presumably what, the height of sensitivity to contamination problems that a scientist could have?

DR. GERDES: Yes, but they are not typing a single cell from a crime scene. They are--they are typing single cells in a controlled laboratory environment where they can dilute that down with sterile material and know what they started with.

MR. CLARKE: So contamination isn't a problem for that type of sample with one cell?

DR. GERDES: It is a problem. It is a problem anywhere.

MR. CLARKE: It is an important problem for someone trying to copy very small numbers of cells, correct?

DR. GERDES: Yes.

MR. CLARKE: One was a very small number, correct?

DR. GERDES: Yes.

MR. CLARKE: At your laboratory your tests using PCR start with different numbers of cells that are present in a sample; is that correct?

DR. GERDES: The PCR tests that we use we adjust the DNA concentrations to higher concentrations that would generally be used, relatively speaking, in a forensic setting, and the reason we do that is to avoid as much as we can the contamination problem.

MR. CLARKE: So you set--you made a decision at what level of the number of cells in a sample, before you are willing to use PCR to obtain results that you will report in casework?

DR. GERDES: Yes.

MR. CLARKE: You have described your laboratory as being capable of detecting as few as one to five cells in a sample, haven't you?

DR. GERDES: One to five cells?

MR. CLARKE: Correct.

DR. GERDES: What kind of cells?

MR. CLARKE: DNA, copies of target DNA, and we will define those terms.

DR. GERDES: The initial PCR that we did was just for CMV. Initial studies were adjusted to--for us to be capable of detecting one to five copies of that particular virus. Is that what you are referring to?

MR. CLARKE: All right. Well, what does target DNA mean?

DR. GERDES: Well, the gene you are looking for and the virus is not a cell, so if we are looking for a virus, you are looking for that piece of the virus or sequence of the nucleic acid of the virus and that would be defined as the target. The target is the virus and the amount we would be able to detect would be between one and five.

MR. CLARKE: That is again a very low level of DNA, correct?

DR. GERDES: That's correct.

MR. CLARKE: You then utilized a higher number of--number of cells in this CMV testing, correct?

DR. GERDES: It is not cells. It is adjusted to the higher number of copies detectable with the PCR system of the virus; not a cell.

MR. CLARKE: All right. Did you in fact adjust it to a higher number of copies to use in your testing?

DR. GERDES: Yes. The initial studies again on the transplant patients where we looked at the CMV, if we use that kind of sensitivity where we found one to five cells, we were finding it frequently in all of the patients and it wasn't giving us any clinically relevant information, so we adjusted the technique--well, we did this study--a four-year study to determine what was the relevant amount that would allow us to identify patients that needed to be treated as opposed to those who had asymptomatic shedding, then we adjusted the amount so that it would be in that clinically relevant range so that the testing would be useful for patients.

MR. CLARKE: What threshold level do you use now before you will amplify?

DR. GERDES: As far as virus--the CMV virus?

MR. CLARKE: Yes.

DR. GERDES: Our sensitivity is around 50 copies.

MR. CLARKE: 50 copies of this target DNA?

DR. GERDES: Yes.

MR. CLARKE: As far as forensic testing and in particular this case, are you familiar with the number of cycles used by the Los Angeles Police Department when they go through this amplification process?

DR. GERDES: Yes, I am.

MR. CLARKE: And how many cycles is that?

DR. GERDES: 32.

MR. CLARKE: Is that in fact the number recommended by Roche in the user guide?

DR. GERDES: It is.

MR. CLARKE: Are you familiar with the number of cycles used by Cellmark in this case?

DR. GERDES: They use 32.

MR. CLARKE: Are you familiar with the number of cycles used by the Department of Justice?

DR. GERDES: They use 32 also.

MR. CLARKE: All three laboratories use the recommended number of cycles recommended by the manufacturer?

DR. GERDES: That's correct.

MR. CLARKE: Far as sensitivity levels isn't it the case that with regard or forensic testing that there are certain sensitivity levels of starting DNA, that is, the amount of starting DNA, that are recommended?

DR. GERDES: Yes.

MR. CLARKE: Is it also the case that these numbers of cycles play a role in the ability to copy DNA and obtain results?

DR. GERDES: Yes.

MR. CLARKE: What role do they play?

DR. GERDES: (No audible response.)

MR. CLARKE: That is the number of cycles?

DR. GERDES: Well, in the process this Xeroxing of--molecular Xeroxing of a copy of that, it is basically how long you let the Xerox machine run. If you go--each time you double the amount of DNA and you go 32 cycles, then you have a certain level of amplification ability or copying ability. If you go more cycles, what happens is then just like you leave the Xerox machine on longer, you are going to get more copies, and the longer--the more cycles, the more DNA you are going to make within limits. I mean, eventually you get--it runs out of the things it needs, the building blocks it needs to make DNA, and the whole thing stops.

MR. CLARKE: If anyone--if I were to start a DNA laboratory and I programmed that machine to amplify, say, a bloodstain 50 cycles, would that be a mistake?

DR. GERDES: Depends on what you are trying to do in terms of protocol. Certainly it would be an increased risk of amplifying very small amounts of material and having them become a contaminant.

MR. CLARKE: So the number of cycles becomes important in controlling contamination?

DR. GERDES: Yes.

MR. CLARKE: And in fact 32, that wasn't a number picked on a board, that is, a dart thrown at a board; isn't that right?

DR. GERDES: That's right.

MR. CLARKE: And in fact wasn't the no. 32 arrived at by scientific experimentation and demonstration of the appropriate number of cycles to use?

DR. GERDES: It is the appropriate number of cycles to use for two nanograms of DNA, which is what the user guide recommends as far as a starting amount.

MR. CLARKE: Well, isn't it correct that these methods have been shown to produce accurate and reliable results using less than two nanograms of starting DNA?

DR. GERDES: I haven't seen any published detailed studies. There are people who claim that and there are phraseology in certain papers where that is claimed, but I think that there are certain dangers that occur when you get down much below--certainly below a half a nanogram.

MR. CLARKE: You've described reading the user guide, correct?

DR. GERDES: Yes.

MR. CLARKE: And the user guide describes using--I'm sorry--using amounts less than two nanograms as producing accurate and reliable results, correct?

DR. GERDES: I think there is a phrase in there that says something to the effect that it is possible in an experienced laboratory to possibly type less than that. They don't give an exact amount, how much less, but that phrase is in there.

MR. CLARKE: Hasn't the scientific literature demonstrated typeable amounts, that is, amounts producing accurate and reliable results far below two nanograms?

DR. GERDES: I haven't seen any paper that goes to a detailed study of tremendously smaller amounts.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: All right. Your Honor, I would like to shift subjects and I just inquiring on when the Court was going to take a break?

THE COURT: Three o'clock.

MR. CLARKE: Very well. I have a--well, let me ask a couple questions first.

MR. CLARKE: In the timing process using PCR, it is important to use controls, correct?

DR. GERDES: That's correct.

MR. CLARKE: And you described controls yesterday; is that right?

DR. GERDES: Yes.

MR. CLARKE: Controls are used in this typing process to tell whether or not the test is working correctly?

DR. GERDES: That's the purpose of controls.

MR. CLARKE: All right. Your Honor, I have an eight-and-a-half-by-eleven piece of paper that I would ask to be marked as--

THE CLERK: 557.

THE COURT: 557.

MR. CLARKE: 557, a copy of which I provided to counsel previously.

(Peo's 557 for id = document)

MR. CLARKE: And with the Court's permission, I would like to use that on the elmo.

THE COURT: Proceed.

MR. CLARKE: And Dr. Gerdes, can you--I don't know if it is easier for you to use the monitor to your right.

DR. GERDES: I would prefer to look from down there if that is okay.

MR. CLARKE: Sure. That's fine. First of all, you have described previously your examination of various materials from the Los Angeles Police Department, correct?

DR. GERDES: That's correct.

MR. SCHECK: Your Honor, may I just make a suggestion about positioning, because in this fashion the witness' back is to part of the jury.

THE COURT: Yes. Thank you.

MR. CLARKE: And in fact you were and have taken the opportunity to review the testing conducted by the Los Angeles Police Department in their DNA laboratory in this case, correct?

DR. GERDES: That's correct.

MR. CLARKE: And with regard to that testing, you have also described yesterday having reviewed materials from the DNA laboratory unrelated to this case, correct?

DR. GERDES: Correct.

MR. CLARKE: Now, your review of the DNA typing documents from the Los Angeles Police Department in this case reveals that department's, in particular, Collin Yamauchi's, use of a number of controls, correct?

DR. GERDES: That's correct.

MR. CLARKE: Now, on this particular document that is labeled at the top "Los Angeles Police Department PCR DQ-Alpha testing controls" there is a number "1" and the term "Reagent control." Do you see that?

DR. GERDES: I do.

MR. CLARKE: Then in parenthesis and quotation marks the term "Cloth control."

DR. GERDES: Yes.

MR. CLARKE: First of all, what is a reagent control?

DR. GERDES: This is a control that basically--that is why it is called a cloth control. A piece of cloth or a swab that is unused is basically run through the process, including all of the reagents, buffers, the fluid and so forth that are used in this process, and then you look at a typing, go through the same typing procedure, and ask the question is there any evidence of DNA on that particular control. So it is a control for contaminants that would be introduced into reagents or things that are going on along that process, all the way from the beginning.

MR. CLARKE: Is that an important control to use?

DR. GERDES: I think it is an important control, yes.

MR. CLARKE: Now, there is also the term "Cloth control." Where does that come from?

DR. GERDES: It comes from the fact that you take a piece of cloth that has nothing on it presumably and you run it through the process.

MR. CLARKE: If a reagent control him shows a DNA reaction, for instance, at the ultimate or the last typing phase of the testing process, what does that tell the analyst?

DR. GERDES: It tells the analyst that at some time, either in handling that cloth or going through all of this process from the very beginning to the end, DNA has been introduced.

MR. CLARKE: That is one control, reagent control or cloth control, as it is also called, correct?

DR. GERDES: That's correct.

MR. CLARKE: That is a control utilized by the Los Angeles Police Department not only in their casework in this case, but also in all the other typing that they conducted that you've described yesterday?

DR. GERDES: That's correct.

MR. CLARKE: The second control, labeled "Amplification control positive," what is that?

DR. GERDES: That generally refers to the DNA that is incorporated as part of the kit, so the company that sells this kit has a positive DNA sample. It is a 1.1, 4 type and it is incorporated in the PCR process just to ensure that the individual who uses the kit can amplify the DNA and that the strips are working appropriately so that that particular control types as a 1.1, 4.

MR. CLARKE: As far as that amplification control, if during this testing process and ultimately at the final end--first of all, are each of those controls actually typed on a strip at the end?

DR. GERDES: Yes.

MR. CLARKE: In other words, they are handled as far as amplification, typing and then the analyst reading the results from the dots just like a regular evidence sample; is that right?

DR. GERDES: That's correct.

MR. CLARKE: Let's say--

DR. GERDES: Well, not strictly correct. On an evidence sample there is a rule with regard to a C dot and in these types of controls that rule no longer holds, because of the fact that any DNA, anything at all, present on these types of controls, indicates that there is human DNA that shouldn't be there that is invisible, so it indicates contamination regardless of what the C is. So as far as typeable, that needs to be clarified.

MR. CLARKE: Okay. We'll return to the C probe. What you have just described applies to certainly, no. 1, the reagent control, correct?

DR. GERDES: Yes.

MR. CLARKE: No. 2, however, what you just said does not apply, correct, because you expect to find the types 1.1 and 4 as well as a C dot reaction, correct?

DR. GERDES: Well, actually it does apply if you find the evidence of another dot other than the 1.1 and 4 dot. Perhaps you find a 2 dot or a 3 dot, then you know that there is foreign DNA that has been incorporated into that positive control. So any indication of those kind of dots on this control indicates contamination.

MR. CLARKE: What I asked, though, Dr. Gerdes, was as far as the C probe is concerned and a reaction, the C probe should show up on the amplification control positive, no. 2?

DR. GERDES: That's true.

MR. CLARKE: And in fact you should see the 1.1 dot, correct?

DR. GERDES: Correct.

MR. CLARKE: And the 4 dot?

DR. GERDES: Correct.

MR. CLARKE: And actually also the 1 dot, correct?

DR. GERDES: Correct.

MR. CLARKE: And one more dot that is also basically reacted to by a 4, correct?

DR. GERDES: The 1.2, 1.3, 4 dot.

MR. CLARKE: Now, let's turn to--while we are on amplification control positive, if that control is a 1.1 and a 4 and all of a sudden there is a 2 dot there, does that signal the analyst to something on that control?

DR. GERDES: It indicates on that control that there is a human DNA that has been contaminated on that strip. There is a 2 dot on that positive control and it shouldn't be there.

MR. CLARKE: With respect to no. 3, what is labeled "Amplification control negative," what is that?

DR. GERDES: This is a control that some people call a water control, and it is incorporated at the stage where you put the sample into the thermalcycler, into the machine that copies things, and that is going to control--basically it is designed to pick up amplification carry-over so if you are going--that product carry-over, this is a stage where that would frequently appear. And so this control is really designed to see if that process, that kind of contamination has occurred.

MR. CLARKE: In other words, that is to help the analyst determine whether or not something has invaded the typing process that may affect the results, correct?

DR. GERDES: Correct.

MR. CLARKE: Turning to no. 4, "Positive control standard," what is that?

DR. GERDES: This is a known DNA or known specimen. Most laboratories use a blood specimen. They are drawn from individuals who work at the lab, for instance, or known people at least, and then that is run through the entire process of handling and of extracting the DNA and going all the way through until you get a typeable result on that control for whether or not on a random basis using different kind of types you are able to get a typeable result. And it controls for the extraction process, for the amplification process and for the strips themselves to make sure that they are appropriately typing the sample.

MR. CLARKE: Turning to no. 5, a substrate control, what is that?

DR. GERDES: Substrate control--substrate means--that means what something is on, so the typical substrate control would be if you collect a specimen in an area, you would take an adjacent area that doesn't appear to have any obvious blood--if it is a bloodstain, any blood, and you would take a swab from that area and then carry that through the entire process. Now, this is a good control because it goes all the way back to or should at least go all the way back to the crime scene, because if you do that at the crime scene and you carry it through in parallel all the way through, it should tell you not only how much DNA was just sort of like the background DNA in that area at the crime scene, but it also tells you whether during the manipulations, assuming everything was done in parallel, whether during the manipulations that human--any foreign human DNA might have been incorporated.

MR. CLARKE: Dr. Gerdes, that substrate control is an excellent control, isn't it?

DR. GERDES: Well, it is an excellent control in terms of determining background level of DNA as long as--in my opinion it should be altered. I mean, basically it doesn't have a stabilizer in there, and I think it could be improved upon, but it is an excellent control.

MR. CLARKE: You have previously described the substrate control as used in forensics as an excellent control, haven't you?

DR. GERDES: I--yes.

MR. CLARKE: Now, with regard to, and lastly, the C probe, you discussed that a few moments ago. That is a probe, is it not, used to help guide the analyst in interpreting results as revealed by reactions on the strips?

DR. GERDES: The C probe?

MR. CLARKE: Correct.

DR. GERDES: The C probe is the least amount of DNA on the strip. It tells you whether there is adequate DNA to proceed with the typing result. If the C probe is not present, you don't have enough DNA to type. It is--but the probe--this particular C probe fails as a control if you are dealing with mixtures because in the case of a mixture you don't know what proportion one contributor and the second--the proportion of the different contributors. If there are two contributors, one may have a large amount of DNA adequate to light up the C dot and one may have a small amount of DNA which by itself probably would not have lit up the C dot, but gives you faint detectable signals.

MR. CLARKE: Just a couple of questions if I might, your Honor, on this.

MR. CLARKE: All of these controls were used by the Los Angeles Police Department in this case, correct?

DR. GERDES: Yes, they were.

MR. CLARKE: Those controls were used by Cellmark in this case?

DR. GERDES: Yes.

MR. CLARKE: Those controls were used by the Department of Justice in this case?

DR. GERDES: Yes.

MR. CLARKE: And in fact the Department of Justice uses an additional control what is referred to, and I believe you described it yesterday, their QC sample, correct?

DR. GERDES: Yes.

MR. CLARKE: All right.

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

(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. Counsel, I'm working with one court reporter today, so we may go one more session and then call it a day. 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. Dr. Gerdes. All right. The record should reflect we have been rejoined by all the members of our jury panel. Dr. Gerdes is again on the witness stand undergoing cross-examination by Mr. Clarke. Mr. Clarke, you may continue.

MR. CLARKE: Thank you, your Honor. Good afternoon again, ladies and gentlemen.

THE JURY: Good afternoon.

MR. CLARKE: Dr. Gerdes, I would like to shift your attention to cross-hybridization, and in particular, with regard to cross-hybridization that can be characterized, can it not, as the appearance of additional alleles because of the closeness in sequence of one to the other? Is that a fair definition?

DR. GERDES: Yes. It frequently occurs in the presence of higher levels of DNA.

MR. CLARKE: You prepared a report in this matter; is that correct?

DR. GERDES: I did.

MR. CLARKE: And is it correct that in that report you have described the fact that additional alleles can appear weaker than alleles from the sample itself when, for instance, the temperature of this process of the typing strips showing these dots isn't correct?

DR. GERDES: That's correct. If either the temperature or the salt concentration is incorrectly--the protocol is incorrectly followed, that would be an explanation--

MR. CLARKE: In other words--

DR. GERDES: --for weak dots.

MR. CLARKE: The temperature could be off during this process and you might see a weak dot; is that right?

DR. GERDES: Correct.

MR. CLARKE: Or how much salt is in the solution that this development process goes on in, that could also result in a weaker dot?

DR. GERDES: It might--I have to clarify that. It would result in a weaker dot on a sample from a known individual. It would not--there is no way it could result in a weak dot on a no DNA control such as the amplification blank or the reagent blank or a substrate control where there is not supposed to be any DNA in the first place. It could not result in a dot there.

MR. CLARKE: In other words, when we put that chart up there of controls, if that were a reagent blank, also called a cloth control and you saw a weak signal on one of those dots, that is not from cross-hybridization, correct?

DR. GERDES: No, it could not be.

MR. CLARKE: But on, for instance, a known sample from a person like the positive control that we described there, that could be the subject to these additional dots showing if, for instance, the temperature were off or the salt solution were off?

DR. GERDES: In that case it would be one possible explanation.

MR. CLARKE: Now, as far as the differences between these alleles, and let's use DQ-Alpha, there is a 1.1 allele; is that right?

DR. GERDES: Correct.

MR. CLARKE: And a 1.2?

DR. GERDES: Correct.

MR. CLARKE: And a 1.3?

DR. GERDES: Correct.

MR. CLARKE: And then there are three others that are called 2, 3 and 4 are the typing strip?

DR. GERDES: That's correct.

MR. CLARKE: As far as the 1.1, allele it is very close in terms of its DNA sequence to the 1.2 allele; is that right?

DR. GERDES: Yes.

MR. CLARKE: And in fact there is only one little piece of DNA information, a base pair difference between the 1.1 and the 1.2, correct?

DR. GERDES: Correct.

MR. CLARKE: It is that similarity in closeness that can lead to the appearance of these additional weaker dots if a sample is, say, a 1.3 and you see a 1.1 showing up weekly?

DR. GERDES: Well, specifically in the case of the 1.1, that is not really the reason that has been described for that particular allele.

MR. CLARKE: Well--

DR. GERDES: That particular allele is a second gene that has close sequences, the DX gene.

MR. CLARKE: Okay. We will return to that. But the 1.1 and the 1.2 only differ by one base pair, correct?

DR. GERDES: Correct.

MR. CLARKE: And a 1.2 type can also show--simply because of this one base pair difference show some weaker reaction in the 1.1, correct?

DR. GERDES: If the reaction and the protocol are correctly followed, this system is capable of detecting a one base pair difference.

MR. CLARKE: All right.

DR. GERDES: It is only when you have larger amounts of DNA that you have a minor percentage of that kind of cross because of the one base pair mixing.

MR. CLARKE: Isn't it true--

DR. GERDES: And then would you see it.

MR. CLARKE: Isn't it true that this cross-hybridization due to this one base pair difference between a 1.1 and a 1.2 can appear even if large amounts of DNA are not involved?

DR. GERDES: It is--the literature that I have read suggests that six nanograms and above is where the problem is.

MR. CLARKE: Is it your testimony that unless there is six nanograms this cross-hybridization we know as 1.1 and a 1.2 can't happen?

DR. GERDES: It is less likely to happen.

MR. CLARKE: In other words, it can happen?

DR. GERDES: It is possible, but it is not the more likely explanation when the DNA concentration is low.

MR. CLARKE: Now, the 1.1 and the 1.3 alleles also differ by only one piece of DNA or base pair, correct?

DR. GERDES: Correct.

MR. CLARKE: In other words, these 1.1's, 1.2's and 1.3's are very close to one another in their sequence?

DR. GERDES: Again this system is designed to detect that minor difference, one base pair in this kind of system is significant.

MR. CLARKE: Objection, move to strike, nonresponsive.

THE COURT: Overruled.

MR. CLARKE: As far as this one base pair difference, isn't that an important piece of information for an analyst to know?

DR. GERDES: Certainly. A good analyst will know the sequence of DNA he is working with.

MR. CLARKE: Now, in addition to your report, the user guide talks about this very cross-hybridization, doesn't it?

DR. GERDES: They talk about it in the context of specific alleles, yes.

MR. CLARKE: They also describe--well, let me rephrase. The package insert that also comes with the kit also discusses this minor difference in sequence between these three subtypes of the one, correct?

DR. GERDES: Between those three subtypes.

MR. CLARKE: Incidentally, do you encounter any cross-hybridization in your own laboratory work?

DR. GERDES: Whenever you use a dot-blot format this is a fact of life. You are going to see a certain degree of cross-hybridization.

MR. CLARKE: And is that true in your laboratory's casework? I'm referring to samples that come into your laboratory you perform testing and you report results to doctors to talk about with their patients?

DR. GERDES: Yes. We deal with it in a little different specific manner to accommodate that problem.

MR. CLARKE: Is it also something that in your casework as an analyst performing this type of work you have to be aware of?

DR. GERDES: Yes.

MR. CLARKE: And is it something that from that awareness and experience you use that awareness and experience to properly interpret results?

DR. GERDES: Yes. What you have to remember is in our particular case we are dealing with known single individuals. The problem becomes acute or exacerbated--

MR. CLARKE: Sorry, objection, nonresponsive, your Honor.

THE COURT: Sustained. Ask another question.

MR. CLARKE: It is a problem and it is something you deal with in your casework, correct?

DR. GERDES: This kind of problem occurs in dot-blots, yes.

MR. CLARKE: Now, let's turn to this DX. In fact, what you've referred to as DX is the fact that a 1.1 allele may appear weakly, that is, weaker than the other alleles from a sample in a given case because that--because of the--I'm sorry, let me rephrase that. This DX gene phenomenon you have described is due to the fact that there is a gene close to DQ-Alpha, right?

DR. GERDES: Correct.

MR. CLARKE: It is not the DQ-Alpha gene?

DR. GERDES: That's correct.

MR. CLARKE: But it is close to it, correct?

DR. GERDES: That's correct, close, not--not only in proximity, but close in terms of its sequence.

MR. CLARKE: And some individuals who while they don't have the 1.1 DQ-Alpha type, may have a form of the DX gene that will weakly light up that 1.1 dot, correct?

DR. GERDES: That has been described, yes.

MR. CLARKE: That is described, for instance, in the user guide, correct?

DR. GERDES: Correct.

MR. CLARKE: That is described in the package insert?

DR. GERDES: Yes.

MR. CLARKE: And it is also described, isn't it, in the scientific literature?

DR. GERDES: Yes.

MR. CLARKE: You have recognized this DX gene, 1.1 reaction in this case by way of your report, correct?

DR. GERDES: That's correct.

MR. CLARKE: Now, you have described the fact that in your opinion a 1.1 reaction can only be as a result of this DX gene if the person doesn't have a 1 type at all. Do you recall that?

DR. GERDES: That is not exactly the way I stated it.

MR. CLARKE: Okay. Isn't it correct that there can be DX gene reaction from a person who is a type 1.1, 1.2 or 1.3?

DR. GERDES: That is--that is true, but you can no longer differentiate as to whether it is true DX or if it is a true 1 type because that 1 dot is lighting up.

MR. CLARKE: Okay. In a sample where the 1 allele is lighting up and let's say the person is a 1.3 and a 3, let's say, the 1 dot lights up, right?

DR. GERDES: Yes.

MR. CLARKE: The 1.3 dot lights up?

DR. GERDES: Yes.

MR. CLARKE: Actually another dot lights up because the 1.3 is there, right?

DR. GERDES: Correct.

MR. CLARKE: If there is a weaker 1.1, that can be from DX, can't it?

DR. GERDES: It can be, but you can't tell that that in fact if that is from a contaminant or if that is from DX because in that situation you don't--you have the 1 dot lighting up, so you have no way of knowing one way or another.

MR. CLARKE: What you are saying then, Dr. Gerdes, is the fact that if you see the 1.1 lighting up weakly, but the 1 dot isn't lighting up at all, you would have more confidence in concluding that that is from DX gene activity?

DR. GERDES: No. I'm saying with any degree of scientific certainty you can't say one way or the other.

MR. CLARKE: But in my scenario wouldn't you have more confidence that a 1.1 reaction is due to DX if you see no reaction whatsoever in the 1?

DR. GERDES: Yes.

MR. CLARKE: Now, I would like to turn your attention to mixtures, mixed samples.

DR. GERDES: Okay.

MR. CLARKE: And with regard to that, isn't it correct that with regard to mixed samples the more genetic markers you look at the more information you can obtain about a mixture?

DR. GERDES: Assuming that the mixture--that's true.

MR. CLARKE: In other words, if you are able to look at seven genetic markers and across all of those markers the results are consistent with a mixture of two people--

DR. GERDES: Yes.

MR. CLARKE: --two known people, that those seven markers give you more confidence in who that mixture came from than if you did simply a DQ-Alpha test alone?

DR. GERDES: That's true.

MR. CLARKE: As far as mixed samples--well, let me rephrase that. As far as contamination is concerned, isn't it true that if you use a second gene, a third gene and a fourth gene, that the likelihood of all of them being contaminated is pretty low?

DR. GERDES: Again, it depends on the source of contamination. If the contamination is due to cross-contamination, that is the transfer that we talked about early on when samples are handled, that is going to be repeatedly typed, no matter how many genes you look at, as the same DNA.

MR. CLARKE: Let's talk about carry-over contamination. Is what I just said to you correct?

DR. GERDES: In terms--in the sense of carry-over, yes.

MR. CLARKE: In other words, the more markers you look at, the more you can eliminate carry-over contamination having any impact at all or even occurring?

DR. GERDES: It--that is true, but it depends on the level of background contamination in the lab at the time in terms of how much information you can get out of that approach.

MR. CLARKE: Every marker you add, when the results demonstrate consistency from, say, a single person or two people, gives you more confidence that carry-over contamination didn't happen?

DR. GERDES: On that specific sample, but the--the point is, if you have evidence of this kind of contamination at a high level background level in the laboratory, then that analysis falls away. I mean, it is harder to do it under those circumstances. It is sort of like if you went into your house and you noticed a cockroach and then the next day you noticed another one, it would be an indication to you that maybe there are other roaches around and you maybe better do something about it.

MR. CLARKE: The cockroach comparison?

DR. GERDES: I guess.

MR. CLARKE: But as far as this carry-over contamination, each time do you another marker and you see consistency of results from, say, one or two persons, you are gaining more confidence as a scientist that carry-over contamination didn't happen?

DR. GERDES: On that specific sample, yes.

MR. CLARKE: Now, with regard to mixtures, isn't it scientifically a good idea to do additional genetic markers to get more information about that mixture?

DR. GERDES: Yes.

MR. CLARKE: Repeat testing also plays an important role in interpreting mixtures; is that right?

DR. GERDES: Yes. Again assuming--it depends upon the stage at which the contamination occurred. If it occurs early on and is carried through a series, repeat testing isn't going to help you, but in the sense of the random events of contamination it would be helpful.

MR. CLARKE: I would like to shift your attention, if I can, Dr. Gerdes, to your review of the LAPD validation strips.

DR. GERDES: Okay.

MR. CLARKE: Using that term generically at the moment.

DR. GERDES: Yes.

MR. CLARKE: You have described yesterday that from your view the Los Angeles Police Department DNA laboratory has by far the worse contamination you have seen in a forensic lab. Have I accurately described what you testified to yesterday?

DR. GERDES: Yes, that's correct.

MR. CLARKE: Now, the time period that you examined the Los Angeles Police Department's DNA typing results was approximately May of `93 through August of `94?

DR. GERDES: Correct.

MR. CLARKE: Or about a 15--15-month time period?

DR. GERDES: About that, yes.

MR. CLARKE: How many other laboratories have you examined all of their PCR DQ-Alpha typing strips for a 15-month time period?

DR. GERDES: For that long a period, none--no other laboratory for that long.

MR. CLARKE: Have you examined any other laboratory over a twelve-month period?

DR. GERDES: Umm, not twelve months, no.

MR. CLARKE: I'm sorry?

DR. GERDES: No.

MR. CLARKE: The sample that you looked at in this case, as far as the individual strips, approximately how many was that?

DR. GERDES: How many total strips?

MR. CLARKE: Yes, counting every strip that you look at, and a rough estimate is fine if that would make it a little faster at this point?

DR. GERDES: A little over a thousand. I think it was a 1069 or something like that.

MR. CLARKE: Have you ever looked at that many strips in any other laboratory's work?

DR. GERDES: No. The closest would be the Department of Justice where I looked at 203.

MR. CLARKE: 203 samples?

DR. GERDES: Strips.

MR. CLARKE: I'm sorry, strips. Over what time period?

DR. GERDES: I believe theirs was over probably four to five months.

MR. CLARKE: Was that a case involving again Mr. Sims?

DR. GERDES: Yes.

MR. CLARKE: As far as your review of the materials in this case, did you speak to Dennis Fung about his evidence collection?

DR. GERDES: No.

MR. CLARKE: Did you speak to Andrea Mazzola?

DR. GERDES: No.

MR. CLARKE: Did you speak to Greg Matheson about evidence collection in this case?

DR. GERDES: No.

MR. CLARKE: Did you speak to any of the employees at the LAPD laboratory about their role in this case in collecting evidence?

DR. GERDES: No.

MR. CLARKE: As far as your review of the strips and, we will return to the numbers in a moment, did you speak to any of the analysts asking them to help you interpret an individual strip in your review?

DR. GERDES: I--Collin Yamauchi and myself sat together and I pointed out to him the things that I was observing.

MR. CLARKE: Did you ask him questions about how he performed his testing as far as interpreting alleles on strips?

DR. GERDES: No. I told him my interpretation and he with us present to respond and at that time he didn't.

MR. CLARKE: And I'm sorry, I didn't hear the last answer?

DR. GERDES: I told him my interpretation. We were sitting there together and I would say "This is a weak dot that I'm concerned about," and we go through page by page, "This is what I'm concerned about," and there was--I think he made note of those things, but I don't even know if he made official note of those, but he was certainly there at the time.

MR. CLARKE: Did you ask him questions about how he interpreted things?

DR. GERDES: No.

MR. CLARKE: As far as any scientific test, let's use DNA typing, is it in your view important to learn how to use a test?

DR. GERDES: Yes.

MR. CLARKE: Is it important to gain experience in using a test?

DR. GERDES: It is--yes.

MR. CLARKE: Is there a training period for use of any scientific test?

DR. GERDES: Yes.

MR. CLARKE: Is it important to have actual physical hands-on use, hands-on work using a technique to be able to perform that technique?

DR. GERDES: If you are going to perform the technique, yes, but in interpretation of scientific data, that is the nature of science. It should result in a documented piece of paper or evidence or result that can be independently analyzed by another individual who is familiar with the way--familiar with the interpretation of those results.

MR. CLARKE: In your view is it important to have experience in actually using a technique to be able to interpret it, as you have done in this case?

DR. GERDES: No.

MR. CLARKE: In your view then it is not important at all for you to ever have performed one of these forensic analyses?

DR. GERDES: The--the interpretation of the strips are fairly straightforward. I don't feel that is necessary.

MR. CLARKE: Now, as far as the LAPD's casework, when did it actually begin, in other words, accepting cases, performing DNA typing, that is PCR DQ-Alpha typing in actual cases?

DR. GERDES: I believe it was--let me see if I have it here. For DQ-Alpha?

MR. CLARKE: Yes.

DR. GERDES: Yes.

MR. CLARKE: For--

DR. GERDES: For LAPD?

MR. CLARKE: Yes.

DR. GERDES: They began accepting cases for HLH DQ-Alpha on October 13th, 1993.

MR. CLARKE: You, as a result of examining these strips that you described yesterday, created a chart; is that right?

DR. GERDES: Yes.

MR. CLARKE: By chart I'm referring to a document of several pages cetera in which you note a particular strip on a particular run and then a few comments about that run, correct?

DR. GERDES: The--yes, the typing result that was recorded and a comment on that.

MR. CLARKE: And you reviewed all of the LAPD PCR DQ-Alpha typing strips, correct?

DR. GERDES: All of them they showed me.

MR. CLARKE: Did you review all of the strips in their validation study?

DR. GERDES: Yes.

MR. CLARKE: Did you review all of the strips in their proficiency tests?

DR. GERDES: Yes.

MR. CLARKE: Did you review all of the strips relating to their Korean database tests?

DR. GERDES: All of them they gave me. I don't think I have the entire database, but in that time frame.

MR. CLARKE: Well, as far as their strips, how are they kept at their laboratory? In other words, what did you physically look at?

DR. GERDES: I looked at a book very similar to what I have here, which is a run book which shows each--you know, day by day what the run and the strip looked like.

MR. CLARKE: And then what would be on a page?

DR. GERDES: Umm, the page has a photo of the strips and it also has the recorded typing result and the name of the analyst, the date.

MR. CLARKE: And several other pieces of information?

DR. GERDES: Yes. I can tell you exactly if you would like.

MR. CLARKE: Well, I don't know that we need all the details, but is it correct to say for now that there is identifying information about what hybridization record it is?

DR. GERDES: Yes, there is a hybridization number. There are two numbers and item number, a description of the item and then the hybridization volume, the results and also there are items about the lot numbers of specific reagents that were used to produce that result.

MR. CLARKE: And I believe you described yesterday that you reviewed during this time period of May, `93, through August of `94, all of the LAPD DNA laboratory casework strips, correct?

DR. GERDES: I--I'm not--I don't believe I was shown all of the casework strips, but all of them that I was shown I reviewed, yes.

MR. CLARKE: Well, when you went through these books, were they--was it more than one binder?

DR. GERDES: Yes, it was.

MR. CLARKE: And these records have a hybridization record number, correct?

DR. GERDES: Correct.

MR. CLARKE: They started at what number?

DR. GERDES: That I looked at?

MR. CLARKE: Yes.

DR. GERDES: 1.

MR. CLARKE: And continued through what number?

DR. GERDES: 261.

MR. CLARKE: So if you were done looking at page 1, would you look at page 2, correct?

DR. GERDES: Yes.

MR. CLARKE: And so on through 261?

DR. GERDES: Yes.

MR. CLARKE: Did you encounter any missing numbers?

DR. GERDES: There are a few, but I believe they have to do with the fact that they were polymarker runs that were incorporated in here which were given a sequence number and that wouldn't be counted as DQ-Alpha.

MR. CLARKE: Okay. So from this 1 through 261 you would look at each of the pages that involved DQ-Alpha typing and if a page involved polymarker typing you didn't look at it, you would go to the next hybridization as well as--

DR. GERDES: I looked at some of these as well. I didn't analyze those in as systematic a way as I did this.

MR. CLARKE: So you had an opportunity to look at all the polymarker results in the LAPD laboratory as well; is that right?

DR. GERDES: Yes.

MR. CLARKE: You also in fact did review them?

DR. GERDES: I did not have time to review those.

MR. CLARKE: Did you in fact create any chart or document about polymarker results by the LAPD laboratory during this August through--May `93, through August of `94, time period?

DR. GERDES: No, I didn't create a chart.

MR. CLARKE: Now, as far as the term "Run," "Hybridization run," that term was used yesterday by you, correct?

DR. GERDES: Yes.

MR. CLARKE: What does a run mean to you?

DR. GERDES: Well, the strip--each strip is one sample and a run would be all of the particular strips that were run on a given day.

MR. CLARKE: In other words, the thermalcycler holds up to 96 samples, correct?

DR. GERDES: Yes.

MR. CLARKE: A hybridization record will only have as many as eight strips results, correct?

DR. GERDES: Correct.

MR. CLARKE: So a run may include one page of strips or several pages of strips; is that right?

DR. GERDES: That's true.

MR. CLARKE: As far as a run being in one day, what if two separate runs in the thermalcycler were done on the same day, how would you deal with that?

DR. GERDES: (No audible response.)

MR. CLARKE: How would you count it?

DR. GERDES: If it was the same date?

MR. CLARKE: Yes.

DR. GERDES: If it was by a different analyst, I would consider it as a different run, otherwise it would be considered as the same.

MR. CLARKE: Okay. So if there is two analysts, one using the thermalcycler and then another one later using the thermalcycler, that is two runs?

DR. GERDES: I went pretty much by date. One day, even if there were two people, that would still be considered one run, one day; one run.

MR. CLARKE: Okay. So when, for instance, there were charts--and I believe you testified yesterday--you did testify yesterday about contamination by run. Do you recall that?

DR. GERDES: Yes.

MR. CLARKE: That run may actually be two separate runs, correct?

DR. GERDES: Yes. It is by date, so everything that was done on a particular day is considered a run.

MR. CLARKE: All right. Even though it may be two runs on that day; is that correct?

DR. GERDES: In your definition, yeah.

MR. CLARKE: Well, run was by your definition, correct?

DR. GERDES: Yes.

MR. CLARKE: Is the chart then inaccurate by using the term "Run" as you have described it?

DR. GERDES: No, I don't believe so. I mean, there is very rare if I can look through this.

(Brief pause.)

(Discussion held off the record between the Deputy District Attorneys.)

DR. GERDES: On a quick look through here I don't see a single day where both analysts ran on the same day.

MR. CLARKE: Okay. At this point it is your testimony from your review of your material briefly that you don't believe there was more than one run by two different analysts on the same day?

DR. GERDES: On a quick read-through of the table I believe that is the case.

MR. CLARKE: Okay. If in fact there were two runs by an analyst, that is by two analysts, two different analysts on the same day, wouldn't your charts about contamination by runs be wrong?

DR. GERDES: No.

MR. CLARKE: Even though they are two separate runs?

DR. GERDES: The point really is you are getting confused in terms of--you are making too big a deal out of this "Run" definition. The point behind this is to look at time, what happened on a given day, what is in that lab on that given day, what is in the lab the next day, what is in the lab across time over the course of a month. And so that is the thing that is really critical here in terms of what kind of contamination is occurring on different days.

MR. CLARKE: You've already described on those charts contamination by strips. Do you recall that?

DR. GERDES: Yes.

MR. CLARKE: That is by individual strips; not by runs, correct?

DR. GERDES: That's correct.

MR. CLARKE: That is something different than contamination by runs, correct?

DR. GERDES: Well, I believe I told--I titled it contamination and artifact by strip and that tells you how often--that gives you an idea or a sense of how often you see additional dots indicating additional human DNA in terms of just looking at every every step and asking that simple question. Is there a dot there that shouldn't be there?

MR. CLARKE: Dr. Gerdes, if your definition is a run is a run done by a single analyst and two different analysts perform runs on the same day and you treat that as one run, doesn't that make your chart wrong?

DR. GERDES: It may be wrong by one item in the--in that particular entry. I don't believe so. I just checked through here and I don't think there this is a date where a single--you know, two analysts ran on the same day.

MR. CLARKE: So it is your view that it may be wrong by one, but that is okay?

DR. GERDES: No. It is my view that I went through here and I don't believe that there is an error and that a run has more to do--you are confusing it. It has more to do with what is going on at a particular time.

MR. CLARKE: Now, as far as--and this chart you created, the several-page document that you described earlier, you originally constructed that document and named it, correct?

DR. GERDES: Yes.

MR. CLARKE: The original name of that document was what, the chart I'm referring to that you've constructed that is several eight-and-a-half-by-eleven pages?

DR. GERDES: I believe it was the observation of--something to the effect of LAPD DQ-Alpha contamination. I believe that is--something to that effect. I don't have the original chart with me.

MR. CLARKE: All right. Would it be consistent--perhaps if I could refresh your recollection. Would it refresh your recollection to see a copy of that original chart?

DR. GERDES: That's fine.

MR. CLARKE: With the Court's permission.

(Brief pause.)

MR. CLARKE: Showing you my copy, Dr. Gerdes, does that refresh your recollection as to your original name for your chart?

DR. GERDES: Yes, "LAPD contamination incidents."

MR. CLARKE: Actually that is not--

DR. GERDES: During validation, 5/25/93 to 8/25/94.

MR. CLARKE: I don't think you still get--

DR. GERDES: "LAPD DQ-Alpha contamination incidents."

MR. CLARKE: Did you ever change the title of that chart?

DR. GERDES: It was--basically that is--I was interested in looking for those--

MR. CLARKE: I'm sorry. Dr. Gerdes, did you ever change the name of the chart?

DR. GERDES: Yes.

MR. CLARKE: And you renamed it?

DR. GERDES: Yes.

MR. CLARKE: First of all, the first chart, to your knowledge was that provided to the People of this case?

DR. GERDES: Yes.

MR. CLARKE: When did that occur, approximately, to your knowledge?

DR. GERDES: January.

MR. CLARKE: Is it your testimony--well, when did you construct that chart?

DR. GERDES: Well, it was constructed over the course of many months.

(Discussion held off the record between the Deputy District Attorneys.)

DR. GERDES: It was never finalized until just recently when I changed the title. It was constructed over a period of many months.

MR. CLARKE: You completed that chart in January of this year?

DR. GERDES: No. I said it was constructed over many months.

MR. CLARKE: When you said January, what did you mean?

DR. GERDES: I--I don't remember exactly when I mailed my first copy of that, but I believe it was around January.

MR. CLARKE: Mailed your first copy to who?

DR. GERDES: To the Defense.

MR. CLARKE: In this case?

DR. GERDES: Yes, but at that point it was--it was a working document and it hasn't been--it wasn't finalized until just recently.

MR. CLARKE: What do you mean "A working document"?

DR. GERDES: Well, as you can see there are a thousand strips I was looking through. I wanted to double-check things. I went through it a number of times. I changed the title. I changed entries. These are things I'm working on.

MR. CLARKE: You looked at that closely to make sure that that document was accurate, didn't you?

DR. GERDES: To the best of my ability, yes.

MR. CLARKE: You did everything you could to make sure you made no mistakes in that document; isn't that correct?

DR. GERDES: That's correct.

MR. CLARKE: In fact if that was a working document in January of 1995, if that document was not provided to the People until a later time, you wanted to make sure that that document was a hundred percent accurate?

DR. GERDES: To the best of my ability.

MR. CLARKE: When did you change the name of that chart?

DR. GERDES: Umm, it was in early June, I believe. I'm not sure what the date was exactly. Well, the report--I don't have a copy of the letter, but it was not that long ago, within a month.

MR. CLARKE: Okay. Let's go back for a moment if we can. You say this is a working document and you were making changes to it. What changes were you making from January and over the months since January?

DR. GERDES: The way I constructed that chart was to go through and make the entries and then I would double-check them and I would also--I would--as I went through the first run through I would have questions, you know, have--have them see if they can get another copy of this strip or this one is missing, for instance, the initial discovery that we received was incomplete. We had to have--we had to go back to the laboratory actually in January and get a second set, a totally different set of photographs for strips that were missing. So once I had strips coming in that were missing, I would go ahead and revise the table with regards to strips that were provided later, that sort of thing.

MR. CLARKE: Is it your testimony that all you did after January was add notations with strips you hadn't seen yet?

DR. GERDES: For the most part, yes.

MR. CLARKE: Were there other changes to the chart?

DR. GERDES: There is one change, yes, or actually a couple of changes.

MR. CLARKE: All right. We will return to those, but as far as this working document and other than the strips that you were given that you didn't have and the changes we will discuss, did you make any other changes to that document between January of this year and June 1st of this year?

DR. GERDES: Yes.

MR. CLARKE: What were those changes? What types of changes?

DR. GERDES: Again, when I go through the first time I would make notations, look at this strip. It was a working document. I would go back and as I--I have convinced myself on certain strips, I would either decide not to call that one or to call that one or to try and get a better photograph, double-check, make sure that everything is accurate.

MR. CLARKE: During this process did you discuss these individual strips with anyone?

DR. GERDES: No.

MR. CLARKE: You discussed them with no one for the Defense?

DR. GERDES: I discussed the fact I was doing this. I was looking at them.

MR. CLARKE: I'm talking about just results in an individual strip, let's say.

DR. GERDES: Not on an individual strip basis, no.

MR. CLARKE: Did you discuss any of them with Dr. Blake?

DR. GERDES: No.

MR. CLARKE: To your knowledge Dr. Blake observed typing in this case, correct?

DR. GERDES: He took photographs of the typing at DOJ and he observed that typing being done, I believe. I'm not sure.

MR. CLARKE: You discussed none of the interpretations that you made of the LAPD results with him; is that right?

DR. GERDES: These of my interpretations? No.

MR. CLARKE: Are these your interpretations only?

DR. GERDES: Yes.

MR. CLARKE: No, you renamed the chart, correct? We discussed that?

DR. GERDES: Yes.

MR. CLARKE: What did you rename the chart, and if it would refresh your recollection to look at the new chart--

DR. GERDES: I've got it here.

MR. CLARKE: All right.

DR. GERDES: "LAPD DQ-Alpha unexpected alleles during validation 5/25/93 to 8/25/94."

MR. CLARKE: So you made the decision to change the title "Contamination incident" and change those two words of the title to "Unexpected alleles"; is that correct?

DR. GERDES: Yes.

MR. CLARKE: That was to make your chart more accurate, correct?

DR. GERDES: That's correct.

MR. CLARKE: And that is because there may not be contamination in many of the instances that you describe in this chart, correct?

DR. GERDES: Well, I believe I described it yesterday. It is--the first step is to just ask the simple question is there a dot there that shouldn't be there?

MR. CLARKE: I'm sorry, your Honor. Objection, nonresponsive.

THE COURT: Overruled.

DR. GERDES: The second step is to interpret those strips in the context of a given day to see if that can be confirmed as contamination.

THE COURT: Ask your question again.

MR. CLARKE: Surely.

MR. CLARKE: Dr. Gerdes, you renamed that chart from "Contamination incidents" to "Unexpected alleles" because there are many instances in your chart that may not be contamination, correct?

DR. GERDES: I don't believe there are many.

MR. CLARKE: How many do you think there are?

DR. GERDES: Specifically on the 1.1 allele where the question would arise, 7.6 percent of those 1.1 alleles could be interpreted as DX. Specifically in terms of the 1.3 allele, which is the other allele where it is known to have cross-hybridization, approximately 25 percent of those might be explained by that cross-hybridization. On all of the other alleles the 4, 2, 3, 1.2, that--those specific alleles have never been described to have those kind of problems, so they stand as real contaminants.

MR. CLARKE: Dr. Gerdes, as you sit here today, is it your testimony that other than that 7.6 percent regarding the DX 1.1 allele that all of the remaining incidents, strip by strip incidents that you note in your chart, are contamination period?

DR. GERDES: That--that is--it is consistent with that, yes.

MR. CLARKE: That is not what I'm asking, doctor. Are they contamination or not?

DR. GERDES: It depends on the allele. You have to look at it allele by allele. We already discussed the fact that there is an ambiguity if you have a 1.1 and a 1 dot. Now you can't decide. Now, I chose to count--since you can't decide if it is a contaminant or not in this analysis, I chose to count that as a contaminant. You can argue in fact, and you have that that 1.--that particular allele, the 1.1, even those might be ambiguous, they might be DX and that--that is true, but other than those, all of the rest are contamination.

MR. CLARKE: In other words, other than the 7.6 percent--and those are the percentages that relate to your interpretations in DX, correct?

DR. GERDES: Correct.

MR. CLARKE: Other than those, it is your testimony today that all of the remaining incidents that you identify in your chart are contamination?

MR. SCHECK: Objection, misstates the testimony.

THE COURT: Overruled.

DR. GERDES: Again, the 1.3 allele, you analyze that the same way on the 1.3 allele. If you have a 1 dot as well as the 1.3, you can't tell if that is cross-hybridization. If you have the 1.3 only, that could be considered cross-hybridization, so that is 25 percent where the 1.3 dot only showed up and not the 1 dot, so those also are in question. But with the exception of those two, all of the rest are defined as contamination.

MR. CLARKE: So Dr. Gerdes, 7.6 percent relates to DX activity that it may be, correct?

DR. GERDES: 7.6 percent of the 1.1 alleles.

MR. CLARKE: Is it your testimony that with the exception of those, all the rest of the incidents that you have charted are contamination?

MR. SCHECK: Objection, misstates the testimony. Asked and answered.

THE COURT: Sustained.

MR. CLARKE: When you renamed this chart you eliminated the word "Contamination," correct?

DR. GERDES: Yes.

MR. CLARKE: You have described in your review the fact that you looked at photographs of these strips at the LAPD in January, was it, 1995?

DR. GERDES: Yes.

MR. CLARKE: Did you conduct a review at that laboratory, that is, in person at the laboratory, on any other date of these strips?

DR. GERDES: I believe so. In December we looked at some, too.

MR. CLARKE: So to your recollection you visited the lab twice?

DR. GERDES: Yes.

MR. CLARKE: It involved examining these various strips?

DR. GERDES: That's correct.

MR. CLARKE: You also described the fact that photographs were taken of the photographs of the strips in their book?

DR. GERDES: That is on the second occasion, yes.

MR. CLARKE: All right. Were those photographs of all of the strips or just ones that you had some concern about getting a photograph of?

DR. GERDES: They were a subset--initially photographs were provided by LAPD and on the second visit in January we photographed strips that were missing or those that I wanted to see and have rephotographed because their photographs was not of good quality.

MR. CLARKE: When you say "Their photographs," whose do you mean?

DR. GERDES: LAPD.

MR. CLARKE: You then wanted to ensure you had a photograph of each of the 1 through 261 other than the polymarkers that you didn't review?

DR. GERDES: Correct.

MR. CLARKE: Did you then obtain a photograph of each of the strips that involve again this DQ-Alpha typing process?

DR. GERDES: Yes.

MR. CLARKE: Now, in this--at the time you renamed the chart, to your knowledge was that provided to the People as well, the renamed chart?

DR. GERDES: I believe it was, yes.

MR. CLARKE: To your knowledge was a document also provided to the People indicating your discovery of errors in your chart?

DR. GERDES: Yes.

MR. CLARKE: And in particular, as part of your review of your chart, you discovered two errors that you had made, correct?

DR. GERDES: They are not really errors. They are recalls or reconsiderations in terms of what I would characterize those specific samples.

MR. CLARKE: Well, in one of those instances you labeled a standard as no. 1 and being a mistyping by the LAPD, correct?

DR. GERDES: I never recorded it as that. If you look at the original table--table, it was recorded as "Standard one question, question mark, typed as `check this.'"

MR. CLARKE: From your original review, and your initial chart provided to the People, you described six mistyping errors by the LAPD, correct?

DR. GERDES: Correct.

MR. CLARKE: When you reviewed your material and renamed and corrected your chart, you described five errors by the LAPD; is that right?

DR. GERDES: That's right.

MR. CLARKE: The error rate that you originally described in your first chart was incorrect; is that right?

DR. GERDES: Not--it is still not--it is not incorrect. It basically--on that particular strip there--if you read the result--excuse me--the result, it is a mistyping.

MR. CLARKE: Dr. Gerdes--

DR. GERDES: But--

MR. CLARKE: I'm sorry.

DR. GERDES: If I can explain it, there is no C dot. There is a recording on the list from the analyst that says "No C dot." I felt I could see a C dot. If there is a C dot there, that is an error because it is a typeable result and it is an error, they recorded the incorrect type. But because the analyst wrote down "No C dot," I decided to change that and say that was not an error. In my opinion it is still an error, but I decided to change that because of the fact that I knew there would be an argument about whether or not the C dot was there and the fact that the analyst recorded there was no C dot; therefore, the analyst probably would not have considered that as a typeable result and would not have reported a typeable result that was an error. But in fact I feel I can see a C dot on that strip, and if there is a C dot there it is an error. If there isn't a C dot there, it is not an error.

MR. CLARKE: So Dr. Gerdes, in your first chart you recorded it as an error? In your renamed altered chart you recorded it is as not an error, but your testimony is it is still an error? Is that fair?

DR. GERDES: It is a little confusing, isn't it? I guess, yes, that is fair.

MR. CLARKE: As far as your chart, can you tell us how many actual records there are, hybridization records, the one page that may list eight samples or up to eight samples that you actually listed on your chart, and approximate number is fine?

DR. GERDES: I think there is somewhere around 170, between 170, 180.

MR. CLARKE: Okay. You are actually referring to something different, aren't you? I'm asking how many hybridization records, how many different single pages with up to eight samples on the page?

DR. GERDES: Oh, this? 200--well, somewhere around 200 probably. I don't know exactly how many.

MR. CLARKE: Okay. In reality there is only about eighty recorded on your chart, right?

DR. GERDES: You are asking how many specific pages there are with strips on them? I haven't counted those so I don't know.

MR. CLARKE: Okay. Can you tell us approximately, without counting them?

DR. GERDES: You know, they are numbered from 1 to 201 and some of them the hybridization names are recorded on more than one page, so it is hard for me to estimate unless I count these.

MR. CLARKE: Okay. You looked at--when you use 1 to 201, you mean 1 to 261?

DR. GERDES: 1 to 261 are the hybridizations. I just misread that. Sorry.

MR. CLARKE: Okay. And you only recorded, as far as a record, a hybridization record, where you thought that something was a 1.1, correct, as far as those samples?

DR. GERDES: On my table that is all I record.

MR. CLARKE: The number of strips you examined was over 1000, correct?

DR. GERDES: Correct.

MR. CLARKE: Of the samples not recorded by you on your chart, is it your opinion there was no contamination revealed whatsoever?

DR. GERDES: There was who contamination I could see on those.

MR. CLARKE: What you did was record on your chart the occurrence of additional potential contaminant alleles, correct?

DR. GERDES: Correct.

MR. CLARKE: And in fact you used that exact language in your report, correct?

DR. GERDES: Correct.

MR. CLARKE: These are additional potential contaminant alleles, not contamination for sure, correct?

DR. GERDES: Not unless you do the analysis on a per day basis.

MR. CLARKE: Incidentally, this typing process included work done by analysts unrelated to this case, correct?

DR. GERDES: Yes.

MR. CLARKE: In other words, your survey was of every analyst who conducted typing in the Los Angeles Police Department during that time period?

DR. GERDES: Yeah. What you want to do is look at the contamination--it is lab-related.

MR. CLARKE: Sorry, objection, nonresponsive.

THE COURT: Sustained. The answer is stricken. Reask the question.

MR. CLARKE: Dr. Gerdes, did your review include work done by any analyst in the LAPD laboratory, whether connected to this case or not?

DR. GERDES: Yes.

MR. CLARKE: Incidentally, the polymarker results, they have controls as well on them, don't they?

DR. GERDES: The polymarker has an s dot for determining the amount. The difficulty with the polymarker system is most of those are only two allele systems, so you don't have the luxury of looking for more than--I mean, there is only two there, so you can't look for more than two, so the same kind of analysis is more difficult.

MR. CLARKE: Well, the--

DR. GERDES: With the exception of two genes that are on there that have the three A, B, C genes.

MR. CLARKE: Is there a reagent control on the polymarker strips?

DR. GERDES: That is true, you can look at those.

MR. CLARKE: Is there an amplification control on the polymarker strips?

DR. GERDES: Yes.

MR. CLARKE: In fact they are the same controls that are on the DQ-Alpha strips?

DR. GERDES: Correct.

MR. CLARKE: In fact, those controls can be looked at to show if they reveal contamination, can't they?

DR. GERDES: They can be.

MR. CLARKE: Wouldn't it be scientifically appropriate to look at the polymarker results as well if you are trying to find out how much contamination is in that laboratory?

DR. GERDES: I would have if I had time. It is too long a time to do this.

MR. CLARKE: So you felt you didn't have sufficient time to look at the entire records of the LAPD DNA typing laboratory?

DR. GERDES: I felt that the DQ-Alpha--and I looked at spot checks on some of those and there were some of the same kind of things, and I did not have time to do a detailed analysis on the polymarker.

MR. CLARKE: Wouldn't it be scientifically proper or wouldn't it be more appropriate to look at all of those 261 records instead of something over 200 of them?

DR. GERDES: Well, the polymarker is not--they don't have normally as many strips on those either and it wasn't started until just more recently.

MR. CLARKE: I'm sorry?

DR. GERDES: They didn't start the polymarker until more recently.

MR. CLARKE: Well, when did they start it, and I'm referring to even their validation studies?

DR. GERDES: I don't have that record with me right now.

MR. CLARKE: Okay.

DR. GERDES: It was later--I hate to guess. I don't remember when.

MR. CLARKE: It was before June of 1994, wasn't it?

DR. GERDES: I believe it was.

MR. CLARKE: And didn't it cover the time period of, let's say, May, June and July, 1994?

DR. GERDES: I would have to look at the record to see if they did any polymarkers in that time frame. I don't remember them doing a lot in that time period.

MR. CLARKE: They certainly started doing it before May of 1994, didn't they?

DR. GERDES: The casework.

MR. CLARKE: No, the--

DR. GERDES: Validation?

MR. CLARKE: --same types of typing that you reviewed for DQ-Alpha?

DR. GERDES: I believe they did.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Now, what I would like to address, Dr. Gerdes, in the remaining minutes that we have today--I'm sorry?

THE COURT: 5:00.

MR. CLARKE: Very well.

MR. CLARKE: The errors that you have described, and let's start, if we could, with the first error, and I'm going to refer to them chronologically if I can.

DR. GERDES: Okay.

MR. CLARKE: In other words, from earliest to latest.

DR. GERDES: That's fine.

MR. CLARKE: In chronological order if that is okay. Your first error identified relates to hybridization record no. 15; is that right?

DR. GERDES: That's correct.

MR. CLARKE: Could I have a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: And do you have a record of that?

DR. GERDES: I do.

MR. SCHECK: Your Honor, we don't have duplicate sets. May I stand by the witness to look at them?

(Brief pause.)

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Your Honor, I have a document that I would like to have marked as the People's next exhibit.

THE CLERK: 558.

THE COURT: 558.

MR. CLARKE: 558, which I will show to counsel.

(Brief pause.)

(Peo's 558 for id = photograph)

THE COURT: Mr. Clarke.

MR. SCHECK: Your Honor, we want to compare the pictures because they are two different generations of photographs.

(Brief pause.)

DR. GERDES: Okay.

MR. CLARKE: I'm sorry, People's exhibit 558?

THE COURT: 558.

MR. CLARKE: Does that appear to be a photograph of--not just the photograph of that particular hybridization set of strips, but also of the actual page itself, the document?

DR. GERDES: Yes, it does.

MR. CLARKE: And does it appear to be an accurate reproduction and contain the same documentary information as what you have in your own notebook?

DR. GERDES: Yes.

MR. CLARKE: As far as the photograph is concerned, does it appear to be approximately the same--the same as the photograph that you have?

DR. GERDES: Yes. I mean, I have a Xerox here on mine at the moment, so--which is bothering me, but that seems to be the case.

MR. CLARKE: If you don't have a photograph, then what I can simply ask you to do is to look at this original on the elmo, with the Court's permission?

DR. GERDES: Okay. Okay. It appears--this is--

THE COURT: All right.

DR. GERDES: Yeah.

MR. CLARKE: Your Honor, with the Court's permission then what I would ask to do is to place People's 558 on the elmo.

MR. CLARKE: Now, I don't intend to ask Dr. Gerdes about dots and intensities, and perhaps if there is anytime you feel it is important to look at them, please tell me for purposes of this questioning.

DR. GERDES: Okay, okay.

MR. CLARKE: You have documented in your analysis one of the samples in this particular run as being one of the five errors that you testified to yesterday, correct?

DR. GERDES: That's correct.

MR. CLARKE: And, first of all, just a little bit about this record. This is a run that occurred on what date?

DR. GERDES: On 7/14/93.

MR. CLARKE: And that is reflected at the top of the hybridization record?

DR. GERDES: That's correct.

MR. CLARKE: And the analyst is also identified on the record, correct?

DR. GERDES: Yes.

MR. CLARKE: And the analyst is whom?

DR. GERDES: In this particular case it is Erin Riley.

MR. CLARKE: And then there is also information about confirming analyst; is that right?

DR. GERDES: Yes.

MR. CLARKE: What is a confirming analyst?

DR. GERDES: A second person who looks at the typing and basically confirms it.

MR. CLARKE: So someone who didn't actually perform the actual bench work but rather is asked to come in and look at the strip results?

DR. GERDES: Yes.

MR. CLARKE: And either concur or disagree with the analyst him or herself?

DR. GERDES: That's correct.

MR. CLARKE: And the confirming analyst in this run was whom?

DR. GERDES: Collin Yamauchi.

MR. CLARKE: Now, this particular run on 7/14 of `93 was about eleven months before the incident in question in this case?

DR. GERDES: That's correct.

MR. CLARKE: And would this then be during the fairly early stages of the LAPD's use of DNA typing?

DR. GERDES: They began in May, so that is fair to say, yes.

MR. CLARKE: Now, in particular, the error you identified--and I'm going to ask if we can zoom in on the first row not of the photograph but of the actual written documentation. Actually, if we can go up and zoom out a little bit. Perhaps just a little bit more. Perfect.

MR. CLARKE: The error that you identified is actually on the first sample listed on the chart which is labeled on the left no. 1, correct?

DR. GERDES: That's correct.

MR. CLARKE: Which has identifying information and then a description of the medical sign for female reference blood?

DR. GERDES: Correct.

MR. CLARKE: And the results of that test by Erin Riley she has written down on the far right "1.3, 4," correct?

DR. GERDES: Correct.

MR. CLARKE: Now, in the course of that run there was activity in one of the negative controls; is that right?

DR. GERDES: Yes.

MR. CLARKE: And in fact written down, and perhaps we can zoom in a little bit on the very lower right-hand corner of the eight-segment graph--

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Can you read that from there, Dr. Gerdes?

DR. GERDES: Maybe it would be better if I stepped down if that is --

MR. CLARKE: Okay.

DR. GERDES: Okay. "1.2, 4, no C."

MR. CLARKE: Actually it is noted "W" for "Weak"; is that right?

DR. GERDES: Yes.

MR. CLARKE: "1.2, 4"?

DR. GERDES: Correct.

MR. CLARKE: And then in parenthesis "No c"?

DR. GERDES: That's correct, on the cloth control, the substrate control, the extraction control.

MR. CLARKE: Actually that is not a substrate control?

DR. GERDES: That is why I corrected myself; an extraction control.

MR. CLARKE: That is a control you described earlier that in the course of typing that is supposed to be negative, correct?

DR. GERDES: That's right, so this is definite contamination.

MR. CLARKE: Objection. Move to strike, your Honor, nonresponsive.

THE COURT: Sustained, stricken.

MR. CLARKE: As far as that control is concerned, if that is not negative, the result shouldn't be reported, correct?

DR. GERDES: That's correct.

MR. CLARKE: And in fact the 1.3, 4 shouldn't be reported because of that activity?

DR. GERDES: That's correct.

MR. CLARKE: Was this result ever reported in a report somewhere?

DR. GERDES: No.

MR. CLARKE: The only showing of those alleles that is the call on that reference blood, is the 1.3, 4 that is written under dq-A1 results, correct?

DR. GERDES: That's correct.

MR. CLARKE: Erin Riley was the analyst, correct?

DR. GERDES: Correct.

MR. CLARKE: As result of the activity in the negative control didn't she rerun this sample?

DR. GERDES: I'm not sure if that is the reason she did it. I don't know why she did it, but she did rerun the sample.

MR. CLARKE: Wouldn't it be scientifically appropriate to rerun that sample because of the control that showed activity?

DR. GERDES: It would be scientifically acceptable to begin with something that hadn't even been exposed to that laboratory and rerun it.

MR. CLARKE: Well, let's--

DR. GERDES: I mean we have a contamination problem here.

MR. CLARKE: Objection, move to strike, your Honor.

THE COURT: Sustained. The answer is stricken.

MR. CLARKE: Dr. Gerdes, that 1.3, 4 that is written in by Erin Riley, that is not the correct type for that sample, right?

DR. GERDES: That's correct.

MR. CLARKE: And in fact that sample is actually a 1.2, 4?

DR. GERDES: That's correct.

MR. CLARKE: When Erin Riley reran that sample, if she reran that sample, that was the proper thing to do, wasn't it?

DR. GERDES: To rerun it, yes.

MR. CLARKE: She in fact did rerun that sample, didn't she?

DR. GERDES: Yes.

MR. CLARKE: All right. Your Honor, I have a second similar photograph I would ask be marked People's 559.

THE COURT: So marked.

(Peo's 559 for id = photograph)

MR. CLARKE: May I approach the witness, your Honor?

THE COURT: You may.

MR. CLARKE: Dr. Gerdes, showing you what is labeled at the top "Hybridization 19," is that a similar photograph of a hybridization record and photograph attached to that record as was the case with the previous exhibit that we've discussed?

DR. GERDES: Yes, it is.

MR. CLARKE: And does it appear--contain the same information that you have in your own records?

DR. GERDES: Yes.

MR. CLARKE: All right. With the Court's permission I would like to also place that on the elmo.

THE COURT: Doctor, do you have your copy of that?

DR. GERDES: I don't have the photo, but I have this--the sheet.

MR. CLARKE: Actually just to be clear, Dr. Gerdes, that previous photo, exhibit 558, Erin Riley called the dots, the probes, the alleles, that she observed in that typing strip, correct?

DR. GERDES: Yes.

MR. CLARKE: And as far as her noting the 1.3 allele and the 4 allele, your review also revealed that the 1.3 allele and the 4 allele were present, correct?

DR. GERDES: Correct.

MR. CLARKE: So as far as what she noted seeing on that strip, you agree with what she noted?

DR. GERDES: That's true, I do.

MR. CLARKE: Now, looking at the next exhibit, 559, and if we can zoom in on the same area, let's start there. This is a similar record, correct?

DR. GERDES: Yes.

MR. CLARKE: And in fact on this record--your Honor, I have skipped one exhibit. I'm going to have to ask that another one be marked as what would be People's 560.

THE COURT: 560.

MR. CLARKE: We will do that in chronological order.

THE COURT: Do you want to substitute that for 559?

MR. CLARKE: No, we will also use it.

(Peo's 560 for id = photograph)

(Brief pause.)

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

MR. CLARKE: No, we will also use it.

THE COURT: All right.

(Brief pause.)

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

THE COURT: Why don't you show that to Dr. Gerdes so he can find his copy.

MR. CLARKE: Yes. Dr. Gerdes, showing you, if I can, what will be People's exhibit 560, does that appear to be a similar photograph of a record and photo?

DR. GERDES: Yes.

MR. CLARKE: And do you have a Xerox of that?

DR. GERDES: I have a photo of that one.

MR. CLARKE: All right. With the Court's permission may I place 560 on the elmo?

THE COURT: Yes.

(Brief pause.)

MR. CLARKE: Now, as far as this particular record, which is People's 560, does that appear to be a record from the next day, July 15th, `93?

DR. GERDES: That's correct.

MR. CLARKE: And the analyst is again Erin Riley?

DR. GERDES: That's correct.

MR. CLARKE: And the confirming analyst is Collin Yamauchi?

DR. GERDES: That's correct.

MR. CLARKE: And was that same sample run on that day also?

DR. GERDES: It was.

MR. CLARKE: Now, on this particular set of hybridization records what location was that sample that was rerun from the previous day?

DR. GERDES: In terms of--

MR. CLARKE: One that was called an error by you? In other words, is that sample rerun on this exhibit?

DR. GERDES: It is, yes.

MR. CLARKE: 560?

DR. GERDES: Yes.

MR. CLARKE: And as far as the numbers 1 through 8 on the chart?

DR. GERDES: Okay. It is no. 1.

MR. CLARKE: Okay. Then if we could then zoom in on the no. 1 row. That is fine.

MR. CLARKE: And that top row again constitutes the written record?

DR. GERDES: Correct.

MR. CLARKE: Of Erin Riley's rerun of the same victim reference blood?

DR. GERDES: That's correct.

MR. CLARKE: And on that occasion she noted the alleles 1.3 and 4 being present; is that right?

DR. GERDES: That's correct.

MR. CLARKE: And that notation is the first notation in the immediate--I'm sorry, the far right column that is labeled "Dq-A1 results," correct?

DR. GERDES: Correct.

MR. CLARKE: At the very bottom is another cloth control, correct?

DR. GERDES: Correct.

MR. CLARKE: That cloth control again showed activity, correct?

DR. GERDES: That's correct.

MR. CLARKE: And in fact what is noted for the activity seen by both Erin Riley and Collin Yamauchi with that negative control?

DR. GERDES: The negative control contains 1.2, 1.3 allele.

MR. CLARKE: In view of the existence of that activity in the negative control, isn't it scientifically proper to rerun that sample again?

DR. GERDES: That would be what you would do, yes.

MR. CLARKE: And in fact you called this an error again; isn't that right?

DR. GERDES: It is an error in the sense that that contamination in the laboratory created a false typing result.

MR. CLARKE: Is it your testimony that Erin Riley called that result?

DR. GERDES: That result is recorded.

MR. CLARKE: Is it your testimony that from this document Erin Riley conclusively established, for purposes of reporting results, that that was a 1.3, 4?

DR. GERDES: No. My testimony is that that result was recorded as a type that was an incorrect type as a result of the contamination that was to found in the lab.

MR. CLARKE: Wasn't Erin Riley--let me rephrase. Didn't she rerun this sample again because of that activity in the negative control?

DR. GERDES: Yes.

MR. CLARKE: Wasn't that the right thing to do scientifically?

DR. GERDES: Yes.

MR. CLARKE: And in fact did she rerun that sample as reflected in what is People's exhibit 559 which I showed to you a few moments ago?

DR. GERDES: Yes.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Incidentally, before we do that, Dr. Gerdes, you are not faulting Erin Riley for noting the alleles that she saw in that sample, are you?

DR. GERDES: No. I'm simply saying the contamination at the laboratory created this false--

MR. CLARKE: I'm sorry, nonresponsive, your Honor.

THE COURT: Sustained. Answer is stricken.

MR. CLARKE: She did the right thing by rerunning that again, didn't she?

DR. GERDES: That would be the thing to do.

MR. CLARKE: All right. With the Court's permission I would like to again place on the elmo People's 559.

MR. CLARKE: Now, lastly, Dr. Gerdes, with respect to this series of runs, this was a run conducted by Erin Riley on or two days later, July 17, `93, correct?

DR. GERDES: Yes.

MR. CLARKE: And she reran that same sample again, didn't she?

DR. GERDES: Yes.

MR. CLARKE: Now, on that chart, if we can focus in just on the graph portion of the chart, can you tell us, doctor, where that sample is on this chart?

DR. GERDES: It is in lane 6.

MR. CLARKE: Okay. Lane 6. That would be with the no. 6 off to the far left?

DR. GERDES: Yes.

MR. CLARKE: And then reading across to the right--this would be three rows from the bottom, correct?

DR. GERDES: Correct.

MR. CLARKE: And it is labeled on this particular record as FID, space, 01?

DR. GERDES: Correct.

MR. CLARKE: What is FID 01?

DR. GERDES: Well, that stands--that is FID is an abbreviation that is used in the proficiency testing, so this is actually a proficiency test that they were sent a sample and that is just one of the labels for that sample.

MR. CLARKE: All right. And over to the far right of that same sample and this has been run for the third time by Erin Riley, correct?

DR. GERDES: Correct.

MR. CLARKE: This notes the alleles 1.2, 4; is that right?

DR. GERDES: That's correct.

MR. CLARKE: That answer was correct, wasn't it?

DR. GERDES: Yes.

MR. CLARKE: Looking at the cloth control, the negative control, what activity did that negative control show?

DR. GERDES: In this particular case there is no activity.

MR. CLARKE: She noted no activity, correct?

DR. GERDES: Correct.

MR. CLARKE: Collin Yamauchi agreed there was no activity?

DR. GERDES: Correct.

MR. CLARKE: And you agreed there was no activity in your review of the photograph?

DR. GERDES: Correct.

MR. CLARKE: She got a correct answer when the controls operated properly, correct?

DR. GERDES: Correct.

MR. CLARKE: That correct answer is not noted in your chart, is it?

DR. GERDES: My chart only records additional alleles. No, it is not.

MR. CLARKE: Based on all of this information, Dr. Gerdes, is it your opinion that Erin Riley and the LAPD laboratory made two errors?

DR. GERDES: The errors were caused by the contamination that was present in the laboratory.

MR. CLARKE: Objection, nonresponsive. Move to strike, your Honor.

DR. GERDES: Due to typing on the strip.

THE COURT: Ask the question again.

MR. CLARKE: Dr. Gerdes, is it your testimony that based on the first two runs before this one that those were two errors by Erin Riley?

DR. GERDES: That were errors on that specific strip.

MR. CLARKE: Incidentally, if such an incident occurred in your laboratory with activity showing in the negative controls, would you want your analyst to rerun that sample?

DR. GERDES: Yes.

MR. CLARKE: So Erin Riley did just what you would want her to do with these samples or this sample if she were working in your laboratory?

DR. GERDES: That's correct.

MR. CLARKE: Your Honor, I have another photograph I would ask be marked as People's 561.

THE COURT: 561.

(Peo's 561 for id = photograph)

MR. CLARKE: Which I have shown to counsel. May I approach the witness, your Honor?

THE COURT: You may.

MR. CLARKE: Dr. Gerdes, showing you what is labeled "Hybridization no. 33," does that look familiar?

DR. GERDES: Yes. Let me double-check it here.

(Brief pause.)

(Discussion held off the record between the Deputy District Attorneys.)

DR. GERDES: Yes.

MR. CLARKE: Now, this is another record that you reviewed?

DR. GERDES: Yes.

MR. CLARKE: And do you have a copy of that?

DR. GERDES: I do.

MR. CLARKE: All right. Your Honor, with the Court's permission I would like to place People's 561 on the elmo.

THE COURT: Yes.

MR. CLARKE: And if we can back out a little bit to see the whole page.

MR. CLARKE: Now, Dr. Gerdes, this particular record relates to what date?

DR. GERDES: September 9, 1993.

MR. CLARKE: And that date again precedes the LAPD beginning casework, actually accepting cases in their DNA laboratory?

DR. GERDES: Yes, yes.

MR. CLARKE: Now, this particular run--actually this particular record involved the analyst--or involved Collin Yamauchi as the analyst, correct?

DR. GERDES: That's correct.

MR. CLARKE: So Collin Yamauchi actually performed the actual bench work?

DR. GERDES: Correct.

MR. CLARKE: And the confirming analyst was Erin Riley?

DR. GERDES: Correct.

MR. CLARKE: Now, in this particular sample, this reflects information from what you--from which you determined that there was a third error as far as mistyping in the DNA laboratory at the LAPD, correct?

DR. GERDES: That's correct.

MR. CLARKE: Now, the particular sample that you identified as being an error is which one on this particular record?

DR. GERDES: It is the second strip down.

MR. CLARKE: You are referring to on the actual graph with written information "Sample no. 2," which would be the second row down under "Description"?

DR. GERDES: Correct. Let me see. Yes.

MR. CLARKE: What type of sample was that?

DR. GERDES: This is a sexual assault standard.

MR. CLARKE: Okay. As far as this sample--this wasn't casework, correct?

DR. GERDES: No.

MR. CLARKE: Was this--

DR. GERDES: It is a control.

MR. CLARKE: I'm sorry?

DR. GERDES: A control standard.

MR. CLARKE: Well, wasn't this in fact one of a series of vaginal swabs that were tested using the DQ-Alpha system?

DR. GERDES: Correct.

MR. CLARKE: And a series of vaginal swabs that were tested basically as part of the validation process within the LAPD laboratory?

DR. GERDES: Correct.

MR. CLARKE: This process whereby analysts tested a number of different types of samples to ensure they were able to use the system properly?

DR. GERDES: Correct.

MR. CLARKE: Now, it is labeled--and let's start on the first sample because that will clarify what the second sample is, correct?

DR. GERDES: Correct.

MR. CLARKE: The first sample is labeled "No. 1 V." Does that stand for no. 1 victim?

DR. GERDES: Yes.

MR. CLARKE: And off to the right under "Description" is written "EC," right?

DR. GERDES: Correct.

MR. CLARKE: That that stands for what?

DR. GERDES: Epithelial cell.

MR. CLARKE: Okay. We will talk about that in a moment. Going now down to the sample that you have offered the opinion is an error, that relates to the same swab, correct?

DR. GERDES: Correct.

MR. CLARKE: And then as noted off to the right, "SC"?

DR. GERDES: Correct.

MR. CLARKE: Standing for what?

DR. GERDES: Sperm cell.

MR. CLARKE: Now, with regard to this particular sample, that is designed to be a vaginal swab for purposes of this test?

DR. GERDES: Yes.

MR. CLARKE: Containing what is labeled "EC" or cells from--

DR. GERDES: The victim.

MR. CLARKE: --the female as part of a sexual assault, correct?

DR. GERDES: Correct.

MR. CLARKE: And the actual sample that you have offered the opinion is an error, the SC sample, is supposed to be the sperm cells from the male who engaged in intercourse with this female; is that right?

DR. GERDES: That's correct.

MR. CLARKE: Now, the typing results obtained by Mr. Yamauchi as to the epithelial cell portion are 1.2, 4, in the far upper right-hand corner of the graph?

DR. GERDES: That's correct.

MR. CLARKE: And you agree with those results?

DR. GERDES: Yes.

MR. CLARKE: From your review of the photograph?

DR. GERDES: Yes.

MR. CLARKE: And in fact that properly shows what the DNA type is of the woman from whom that swab was taken, right?

DR. GERDES: That's correct.

MR. CLARKE: So that what the EC portion was showing was what was expected to be the portion from the person the swab was taken from, the woman?

DR. GERDES: That's correct.

MR. CLARKE: Now, relating to SC, that refers to male sperm; is that correct?

DR. GERDES: Correct.

MR. CLARKE: And in fact in this typing process that has been previously described in testimony in this case it is a feature of DNA that even though a sample in a sexual assault case may include DNA from the victim and DNA from, for instance, a rapist in a sexual assault crime, that DNA allows to a large extent separation of the female's DNA from the male's DNA; is that correct to say?

DR. GERDES: By the process of a differential extraction there, without getting too deeply into that, that is a process by which the DNA analyst can break open just the victim's cells and hopefully not break open any of the sperm cells, right?

DR. GERDES: Correct.

MR. CLARKE: And then retrieve the victim's DNA and set it aside for typing, right?

DR. GERDES: Correct.

MR. CLARKE: And then go back and by some other chemical steps break open the sperm cells, set that aside and type that separately, right?

DR. GERDES: That's correct.

MR. CLARKE: This process--and you have used the term differential extraction, right?

DR. GERDES: Yes.

MR. CLARKE: That just describes this process of trying to separate these two types of cells?

DR. GERDES: Correct.

MR. CLARKE: That process is not perfect, is it?

DR. GERDES: It is--it is not perfect in terms of the separation of the two always, correct.

MR. CLARKE: And in fact in a sexual assault case it is not uncommon at all to find, for instance, in the epithelial cell portion some sperm DNA?

DR. GERDES: That's correct.

MR. CLARKE: Because during this process of breaking open the victim's cells some of the sperm may break open and release the DNA as well?

DR. GERDES: That's correct.

MR. CLARKE: And isn't it also correct that the opposite occurs, which is in breaking open the sperm cells some of the victim's cells didn't quite release the DNA in the first step and then they are left in the sperm fraction--I'm sorry, the sperm cell portion also?

DR. GERDES: That is also correct.

MR. CLARKE: Now, in this particular instance these results reflect the victim's DNA in both; is that right?

DR. GERDES: That's correct.

MR. CLARKE: In other words, the 1.2, 4 is consistent with the victim in the epithelial cell portion as well as the male sperm portion?

DR. GERDES: That's correct.

MR. CLARKE: That event, in the context of a mixed vaginal sexual assault sample, is not unexpected, is it?

DR. GERDES: To find the epithelial alleles, no, that is not unexpected.

MR. CLARKE: You called this an error, correct?

DR. GERDES: That's correct.

MR. CLARKE: And in fact a trained DNA analyst would not be surprised to find exactly what the results from Mr. Yamauchi revealed, correct?

DR. GERDES: In terms of the epithelial fraction, that's true, but in terms of the sperm fraction that is not true.

MR. CLARKE: Well, a trained analyst would look at those results and first of all, let's see, what is the type of the male donor of the sperm on that sample?

DR. GERDES: The 1.2, 1.3.

MR. CLARKE: All right. So there is one allele that is shared, the 1.2, right?

DR. GERDES: Correct.

MR. CLARKE: But the male's 1.3 isn't seen in either of these portions?

DR. GERDES: That's correct. That is the error.

MR. CLARKE: You have reviewed cases involving sexual assault samples as part of your work for criminal defendants, correct?

DR. GERDES: I have.

MR. CLARKE: And you have seen samples in which there are mixtures of victim's DNA in a vaginal swab along with a sexual assault or rapist's DNA, correct?

DR. GERDES: Yes, I have.

MR. CLARKE: And in fact you have seen samples in which the victim's DNA shows up in both portions, correct?

DR. GERDES: Yes.

MR. CLARKE: A trained analyst, an experienced analyst, even though seeing that 1.2, 4, in some of the cases that you've reviewed, would not exclude a person who is a 1.2, 1.3 from having, I'm sorry, contributed any DNA to that sample, correct?

DR. GERDES: I don't believe that is correct.

MR. CLARKE: Is it--

DR. GERDES: I believe that they would.

MR. CLARKE: Is it your view that a person can be excluded as a possible donor when their DNA just doesn't show up at all?

DR. GERDES: You don't know. That is the problem. The 1.3 has been missed here. If this typing method is reliable, you can't miss things. If you miss things, how do you know that you didn't miss things on other samples? I mean, you can't do that.

MR. CLARKE: Dr. Gerdes, with respect to a rapist, isn't it the case that in some cases they don't leave enough DNA?

DR. GERDES: That is true, but in the case of a differential extraction the analyst is supposed to look at the specimen and observe sperm before they go ahead with the differential extraction, and if there is sperm there you should find the allele from the sperm and in this case that didn't happen.

MR. CLARKE: Well, is it your testimony that a trained forensic DNA analyst would look at those results and conclude that the 1.2, 4, came from somebody other than the victim?

DR. GERDES: They would most likely conclude that it came from the victim, the 1.2, 4.

MR. CLARKE: And they wouldn't conclude that a person who is a 1.2, 1.3 couldn't have raped that person?

DR. GERDES: If you had--I believe there would be an interpretation problem, but they would most likely not, you are right.

MR. CLARKE: They would not exclude a 1.2, 1.3 from depositing DNA there, would they?

DR. GERDES: And that is the problem. The person was a 1.2, 1.3, so it is an error that person would not have been--

MR. CLARKE: Objection to strike, nonresponsive.

THE COURT: Ask the question again.

MR. CLARKE: Dr. Gerdes, a trained analyst would look at those results and they wouldn't exclude a 1.2, 1.3 as being a donor of sperm in that sample, would they?

DR. GERDES: No, they wouldn't, and this person is a 1.2, 1.3. that is an error.

MR. CLARKE: Dr. Gerdes, that is not an error at all, is it?

DR. GERDES: There is an error. There is a 1.3 allele that you didn't find. That is significant.

MR. CLARKE: Would somebody like Dr. Blake exclude a 1.2, 1.3 from that sample?

DR. GERDES: I can't speak for Dr. Blake.

MR. CLARKE: In your view are you as qualified as he to render opinions about matters like this involving sexual assault samples?

DR. GERDES: Yes, I believe so.

MR. CLARKE: Dr. Blake has had substantial casework experience, has he not?

MR. SCHECK: Your Honor, I think this line is--

THE COURT: Sustained.

MR. SCHECK: Objection.

THE COURT: Sustained.

MR. CLARKE: Your Honor, I have one more record I would like to be marked as a People's exhibit.

THE COURT: 562, I believe.

(Peo's 562 for id = record)

MR. CLARKE: Dr. Gerdes, referring you to what will be exhibit 562, is that a similar record?

DR. GERDES: Yes, it is.

MR. CLARKE: And you have--

DR. GERDES: I'm looking.

MR. CLARKE: --a copy?

(Brief pause.)

DR. GERDES: Yes, I do.

MR. CLARKE: All right. Your Honor, if I may display 562?

THE COURT: Yes.

MR. CLARKE: Your Honor, for the hybridization number in the upper right-hand corner is 37. I don't know if the Court wants me to go back and describe the--

THE COURT: No.

MR. CLARKE: All right.

MR. CLARKE: Dr. Gerdes, referring you to 562, this is a hybridization run conducted also in September of `93?

DR. GERDES: Yes, September 21st.

MR. CLARKE: And in fact this is just what, four hybridization records later than the previous one?

DR. GERDES: Yes.

MR. CLARKE: So part of the same validation studies by the LAPD?

DR. GERDES: Yes.

MR. CLARKE: And in particular, with regard to this sample, this is a--the fourth of five errors that you have testified to previously?

DR. GERDES: Correct.

MR. CLARKE: In particular, the analyst was Erin Riley?

DR. GERDES: Yes.

MR. CLARKE: And the confirming analyst was Collin Yamauchi?

DR. GERDES: Yes.

MR. CLARKE: So their roles have basically reversed?

DR. GERDES: Yes.

MR. CLARKE: With regard to this sample, you identified an error with regard to which individual strip or sample?

DR. GERDES: Item 21-1 which is no. 3.

MR. CLARKE: So the third column--I'm sorry, third row down?

DR. GERDES: Third row down.

MR. CLARKE: That is labeled under "Description"--it looks like "Mock vag swab no. 1"?

DR. GERDES: Correct.

MR. CLARKE: And then "SP" in parenthesis for "Sperm"?

DR. GERDES: Yes.

MR. CLARKE: And then the sample below that, would that then be also the e-cell or victim's cell portion of the same vaginal swab?

DR. GERDES: It is.

MR. CLARKE: Now, off to the right of item no. 3, that is the third item down, the results are written in "1.2, 4," correct?

DR. GERDES: Correct.

MR. CLARKE: Incidentally, is this the same sample that was run previously in what you have described as error no. 3?

DR. GERDES: It is the same sexual assault standard, yes.

MR. CLARKE: And without belaboring the point, you don't disagree with the particular types noted by the analysts, do you?

DR. GERDES: No, I don't.

MR. CLARKE: In fact, you agree with them?

DR. GERDES: I do.

MR. CLARKE: That they were called appropriately in terms of the types present?

DR. GERDES: Correct.

MR. CLARKE: And your opinion about this particular error, would it be based on the exact same reasons that you gave with respect to the previous hybridization record?

DR. GERDES: That's correct.

MR. CLARKE: And in your view this then constitutes the fourth of five errors?

DR. GERDES: That's correct.

MR. CLARKE: And again just to be clear, this particular result of 1.2, 4 again is consistent with the victim in both portions?

DR. GERDES: That's correct.

MR. CLARKE: And in fact would your answers be the same, that such an occurrence is not unexpected with a sexual assault sample in actual casework?

DR. GERDES: That the victim's DNA would be found in that fraction, that is not uncommon.

MR. CLARKE: And in fact that an experienced analyst would not be surprised by that?

DR. GERDES: Correct.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Gerdes, with respect to both this run and the previous error that you have described, you are not offering the opinion that these were called wrong by the analysts, are you?

DR. GERDES: No, I'm not.

MR. CLARKE: You are just--you are offering the opinion that errors were committed because the analyst didn't detect what you feel should have been detected?

DR. GERDES: That's correct.

MR. CLARKE: Have you reviewed any notes about what was observed in terms of any steps prior to typing these samples?

DR. GERDES: I've read testimony or heard testimony, read testimony, I believe, that these were observed microscopically to confirm sperm was there.

MR. CLARKE: And with respect to the confirmation of sperm, does an experienced analyst always obtain a result for those sperm just because they are observed?

DR. GERDES: They should.

MR. CLARKE: Is it your testimony that because sperm are observed there should be a PCR DQ-Alpha result for that sperm?

DR. GERDES: They should--they should obtain--they should find that DNA.

MR. CLARKE: Isn't it correct that there are levels of sperm that may not be detected by the DQ-Alpha system when using the appropriate number of cycles?

DR. GERDES: There are levels below that, but if they observed sperm, they should not be at that level.

MR. CLARKE: If there is observed sperm can't there be a low number of sperm not detectable?

DR. GERDES: If they observe sperm there is an adequate amount.

MR. CLARKE: Is it your testimony that if there is sperm seen there should be a result up there?

DR. GERDES: Yes.

MR. CLARKE: And it is based on that testimony that you offer the opinion this was a fourth error?

DR. GERDES: Based on that, and also if you look at the time frame around this period, there is a 4 allele that is circulating through the lab which in my opinion--

MR. CLARKE: Objection, nonresponsive, move to strike.

THE COURT: Sustained.

MR. CLARKE: All right. Your Honor, I would ask to have one final photograph marked, if I may.

THE COURT: Yes.

MR. CLARKE: Would that be 563?

THE COURT: Yes.

(Peo's 563 for id = photograph)

MR. CLARKE: Showing you, Dr. Gerdes, another similar photo, does that appear familiar?

DR. GERDES: Yes.

MR. CLARKE: And is that labeled "Hybridization 199"?

DR. GERDES: That's correct.

MR. CLARKE: And you have a copy of that?

DR. GERDES: I do.

MR. CLARKE: Your Honor, may I display this?

MR. CLARKE: Dr. Gerdes, does this strip reflect the final error that you described in your testimony yesterday?

DR. GERDES: Yes.

MR. CLARKE: First of all, in terms of the date, the date is May 25th, `94?

DR. GERDES: Correct.

MR. CLARKE: The analyst is whom?

DR. GERDES: Harry Klann.

MR. CLARKE: HK?

DR. GERDES: HK.

MR. CLARKE: This particular run consists of what?

DR. GERDES: A series of hairs that were analyzed and they are reference hairs.

MR. CLARKE: Now, by reference hairs what do you mean?

DR. GERDES: They are from known individuals at the laboratory, so they are just presumably cleanly picked out of the person's head and then run.

MR. CLARKE: The particular error that you have identified relates to what sample?

DR. GERDES: It is the fifth lane down.

MR. CLARKE: Which is labeled under item number there is dash 10?

DR. GERDES: Correct and then no. 27 S.

MR. CLARKE: S, so this would be--well, let's just start off to the far left. It is actually no. 5 as written in the far left-hand column?

DR. GERDES: Correct.

MR. CLARKE: And then it is no. 5 under "Tube number"?

DR. GERDES: Correct.

MR. CLARKE: And then dash 10?

DR. GERDES: Correct.

MR. CLARKE: Under "Item number" I just want to make sure we are clear on which row.

DR. GERDES: Correct.

MR. CLARKE: And then it is labeled "No. 27 s"?

DR. GERDES: Correct.

MR. CLARKE: That is what type of sample?

DR. GERDES: That is a hair shaft from one of these references.

MR. CLARKE: Is it the case that that is a hair shaft from the named--or what appears to be the first name of a person immediately above that sample?

DR. GERDES: That's correct.

MR. CLARKE: What looks like "Jerry B."?

DR. GERDES: It also says "No. 27" before that, so that is what you go by.

MR. CLARKE: Okay. Now, that sample above the one that we are interested in that says "No. 27, Jerry B."--

DR. GERDES: Correct.

MR. CLARKE: --is that the root of that hair shaft?

DR. GERDES: It is.

MR. CLARKE: The sample that you have offered the opinion is an error relates to the shaft itself, correct?

DR. GERDES: Correct.

MR. CLARKE: As far as the root of that hair is concerned, was that correctly called?

DR. GERDES: Yes.

MR. CLARKE: Where is the DNA in a hair?

DR. GERDES: It is found in the root.

MR. CLARKE: It is found in the root only, isn't it?

DR. GERDES: That's correct.

MR. CLARKE: Can hair shafts be typed for DNA?

DR. GERDES: Hair shafts are generally considered to be substrate controls if they are at a crime scene. That is, they should not have DNA.

MR. CLARKE: In other words, if a hair were sterily removed from a person's hair and maintained in an absolute sterile condition and then typed using the system, there would be no DNA result, correct?

DR. GERDES: Correct.

MR. CLARKE: As far as the root, the root hair--and I'm talking about one above the sample that we are interested in.

DR. GERDES: Uh-huh.

MR. CLARKE: --that typed as the same type as Jerry B., correct?

DR. GERDES: Correct.

MR. CLARKE: Which is a 2, 3?

DR. GERDES: Correct.

MR. CLARKE: The hair shaft that you have offered the opinion is an error, is it correct that the 1.2 allele was noted by the analyst?

DR. GERDES: Yes.

MR. CLARKE: And there was no confirming analyst in this instance, at least none noted?

DR. GERDES: None noted.

MR. CLARKE: The 2 allele was noted on the shaft?

DR. GERDES: Yes.

MR. CLARKE: A weak 3 was noted on the shaft?

DR. GERDES: Yes.

MR. CLARKE: And is it the case that the weak 3 is noted to be approximately the same intensity as the C dot?

DR. GERDES: Correct.

MR. CLARKE: You have offered the opinion that that result is incorrect; is that right?

DR. GERDES: That's correct.

MR. CLARKE: As far as the presence of those alleles, you don't have any--you are not rendering any conclusion that the alleles aren't present, are you?

DR. GERDES: No.

MR. CLARKE: As far as a hair shaft, isn't it correct that hair shafts in fact can have DNA on them?

DR. GERDES: If it is from a contaminant or from a crime scene. In this case it is from a contaminant and the significant part--aspect of this particular item is that the 1.2 and 2 are--the analyst is recording this according to intensity or recorded as the type with this weak 3 so that is an incorrect type.

MR. CLARKE: Well, isn't it the case there shouldn't be any type on a hair shaft if it is sterily collected and sterily maintained?

DR. GERDES: That is true.

MR. CLARKE: Hairs are in the real world, aren't they?

DR. GERDES: Yes, but generally on reference hairs--that is why you do these reference hairs; the shafts are clean.

MR. CLARKE: If somebody else plucked a hair out, had trouble plucking it out or whatever, had to deal with the hair manually, if enough of that went on, couldn't you detect the DNA of the person who pulled the hair?

DR. GERDES: It certainly is possible that in the manipulation of that item in the LAPD by the way they manipulated it, they introduced foreign DNA there.

MR. CLARKE: The fact that a hair shaft has DNA on it, that is not an error, is it?

DR. GERDES: In this particular case I've considered this an error because on reference hairs in particular occasionally you will find a small amount of DNA on the shaft. Most likely that DNA is going to be the same type as the root and the explanation for that is when you pull the hair out there may be some epithelial cells that come across from that individual that would type. But you generally do not find any DNA there, and if you do find DNA there, it should match the person that that hair came from. In this case it doesn't. There is a 1.2 that is coming from somewhere else.

MR. CLARKE: Dr. Gerdes, how many cases have you consulted with a Defense attorney on that have involved hairs?

DR. GERDES: Probably maybe 20, 25 percent of the cases I have done.

MR. CLARKE: So about--

DR. GERDES: So--

MR. CLARKE: So about seven or eight?

DR. GERDES: Something like that.

MR. CLARKE: In those cases did all the hair shafts type with no results on them?

DR. GERDES: Those were hairs that came from crime scenes and it is not unusual to find either both the root and the shaft at the same type or foreign DNA's on those.

MR. CLARKE: So it is your complaint and it is your opinion that that is an error because this is a hair shaft and we know who it came from?

DR. GERDES: That is not my complaint. I mean, it is an error because there is a 1.2 that doesn't make sense on a reference hair. If you look at reference hairs that are generally run in labs that use these kind of standards, if you find any DNA, it is the type of the individual. You don't find DNA from someone else there unless it is from a crime scene or it was collected somewhere, but might anticipate that to happen.

MR. CLARKE: Is it your testimony, Dr. Gerdes, that an experienced DNA analyst would, if obtaining a result on a hair shaft, that that necessarily is an error if it is from a known person?

DR. GERDES: This should be typing as a 2, 3. It types as a 1.2, 3.

MR. CLARKE: Objection, nonresponsive.

THE COURT: Overruled. Ask the question again.

MR. CLARKE: Dr. Gerdes, is it your testimony that an experience forensic analyst who obtains a result such as this on a hair shaft from a known person would make a mistake in seeing that result?

MR. SCHECK: The question, your Honor, calls for speculation.

THE COURT: Overruled.

DR. GERDES: That is my testimony based on the fact that this should be a 2, 3 hair because this is a reference sample.

MR. CLARKE: Dr. Gerdes, there shouldn't be anything on it unless it was collected and kept in a sterile fashion, correct?

DR. GERDES: This is--this is a typing error because of the fact that the introduction of a contaminant which creates the wrong dot intensities of the 1.2, 2.

MR. CLARKE: You are calling this a typing error?

DR. GERDES: Yes.

MR. CLARKE: In other words, those alleles aren't there?

DR. GERDES: No, they are there, but they are there because of introduced contamination.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: The five errors that you have discussed in your testimony for the last hour perhaps, in your opinion those are all errors by the Los Angeles Police Department laboratory?

DR. GERDES: They are.

THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the evening. Doctor, you can step down.

DR. GERDES: Thank you.

THE COURT: Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't communicate with anybody with regard to the case. As far as the jury is concerned, we will stand in recess until 9:00 A.M. tomorrow morning. All right. You all have a pleasant evening. See you tomorrow.

(At 5:03 P.M. an adjournment was taken until, Friday, August 4, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

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

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Thursday, August 3, 1995

Volume 199 pages 40032 through 40320, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: Arthur Walsh, Deputy City Attorney Michael D. Sullivan, Esquire Halina F. Osinski, Esquire

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I N D E X

Index for volume 199 pages 40032 - 40320

Day date session page vol.

Thursday August 3, 1995 A.M. 40032 199 P.M. 40153 199

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Gerdes, John 199 (Resumed) 40037bs 40078gc (Resumed) 40167gc

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Gerdes, John 199 (Resumed) 40037bs 40078gc (Resumed) 40167gc

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

557 - 1-page document 40221 199 entitled "LAPD PCR DQ-Alpha testing controls"

558 - Photograph 40278 199 of a DNA hybridization record - hyb-15

559 - Photograph 40285 199 of a DNA hybridization record - hyb-19

560 - Photograph 40287 199 of a DNA hybridization record - hyb-17

561 - Photograph 40295 199 of a DNA hybridization record - hyb-33

562 - Photograph 40305 199 of a DNA hybridization record - hyb-37

563 - Photograph 40311 199 of a DNA hybridization record - hyb-199