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