Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Thompson, Mr. Scheck. The People are represented by Mr. Kelberg, Miss Clark, Mr. Clarke, Mr. Harmon. The jury is not present. Counsel, anything we need to take up before we invite the jurors to rejoin to us conclude the cross-examination of Dr. Gerdes?
MR. KELBERG: Your Honor--
THE COURT: Mr. Kelberg, good morning.
MR. KELBERG: Good morning. From my attire you may expect that I was not anticipating a visit to your courtroom this morning and that was the case except that I was informed by way of a communication between Mr. Yochelson of our office and Mr. Douglas of the Defense late Friday afternoon that in the most recent witness list for this week the Defense has named doctors Baden and Wolf as I think witnesses or prospective witnesses 4 and 5. I had asked Mr. Yochelson on Friday, August 4th, to make a formal request of Mr. Shapiro for any report from either of these doctors. We have never received a report from either one of them. And this morning I spoke to Mr. Cochran who indicated that there may not be a report. I pointed out that when Dr. Baden twice has been retained by our office he has always submitted a report, but setting that aside, I learned to try cases when this Court, I believe, learned to try cases before reciprocal discovery, and so trial by ambush is not an unusual procedure by which one learns to do cross-examination. But if this is to be a search for the truth and if there is still the impact of the reciprocal discovery provision of the California constitution, I think it is incumbent that both sides share their materials. In this regard, if there is not going to be a report, if they have made a tactical decision not to have a report prepared, you know, that will be the subject of cross-examination, but I would like to see every note that these people have. I think it is important to remember we know Dr. Baden has been involved with the Defense since at least June 17 because we have a picture of Dr. Baden with Dr. Huizenga examining Mr. Simpson's hand, as I recall, one of the exhibits that has been marked. And so I would like whatever they have, because I have no idea what they are going to testify to. I had a brief conversation with Mr. Shapiro about two weeks ago where he indicated that if one or both doctors Baden or Wolf were called that it might be on a limited basis and he would have a report. Apparently that may be changing. Again, I will cross-examine these people if I don't get a note and I don't get a report, but I don't think that the People's request for reciprocal discovery is advanced if in fact I do not stand here and make a request through the Court to get what is in fact our entitlement under that California constitutional provision.
THE COURT: All right. Thank you, Mr. Kelberg. Mr. Cochran.
MR. COCHRAN: Good morning, your Honor.
THE COURT: Good morning.
MR. COCHRAN: Your Honor, in this matter, we are very, very aware of our responsibilities under reciprocal discovery. I think you, I and Mr. Kelberg all heard how to try cases under the old system and we have adjusted to the new system obviously. That is part of being a lawyer, I suppose, and fairly intelligently is the ability to adapt. The problem is Mr. Shapiro is not here and may not be here today. He will be handling any witnesses that we call from a forensic pathology standpoint and he is mindful of his obligations. It is an interesting argument, and I would just like to point this out, your Honor: If witnesses don't normally write reports, we don't have to ask him to do a report. In this case several times we said write a report so we don't have any problem. We still get whipsawed and can't win. The People should understand that. We can't win. If they normally don't write report, then the Prosecution says, well, gee, that report came late and we want a delay. We cannot win. And let's make that clear. This search for truth works for both sides, North Carolina and elsewhere. We were entitled to that also. If there are notes--I can tell you if they don't normally write reports--but Mr. Shapiro makes a decision, as we have done with other witnesses, says write a report, so we don't have any problems with this, but I can't say. He is not here yet.
THE COURT: We will wait for Mr. Shapiro.
MR. COCHRAN: Judge, if he doesn't come, he may be working with them, I will be speaking with them and report it back, and Mr. Kelberg, we can let him know at his office.
MR. KELBERG: Your Honor, Mr. Cochran was kind enough to identify the last name on this witness list who none of us was familiar with, J. Uko, u-k-o, and apparently Dr. Uko is pathologist from buffalo. My request goes to Dr. Uko as well as doctors Baden and Wolf. And I have nothing to say about North Carolina. I am not trying to make a pitch for anything other than the limited responsibilities I face at the end of this week.
THE COURT: All right. Mr. Kelberg, why don't you see if you can't contact Mr. Shapiro.
MR. COCHRAN: I will do it for him, your Honor.
THE COURT: All right.
MR. COCHRAN: Thank you.
MR. KELBERG: I will give Mr. Cochran my office number.
THE COURT: All right. Thank you, counsel.
MR. COCHRAN: Thank you, your Honor.
THE COURT: All right. Mr. Clarke, are we ready to proceed?
MR. CLARKE: Actually two items, if I might bring them to the Court's attention. The first relates to the grant proposal and it is my intention to--the Court may recall that that proposal was faxed to this courtroom. Having reviewed that material, there are two areas of inquiry that I wish to make, but not as to the specifics of the technology contained in it. I wanted to bring that to the Court's attention before I launched into that.
MR. SCHECK: Perhaps he could--Mr. Clarke at side bar or sealed record can indicate what that is, so that I can just--
THE COURT: What is the nature of your inquiry, Mr. Clarke?
MR. CLARKE: Approaches in the laboratory of the witness. I can be more specific, but I would like to do it outside the presence of the witness.
MR. SCHECK: I just have those proprietary--
THE COURT: Dr. Gerdes, why don't you wait outside, please.
(Dr. Baden exits the courtroom.)
MR. SCHECK: Your Honor, could we approach on this? Because I just have that proprietary--
THE COURT: Mr. Clarke indicates it has nothing to do with the particular topic, just the technique involved.
MR. CLARKE: Correct. Two areas of inquiry that I wish to make is there is reference in the proposal and a description of this witness' laboratory as being a laboratory that uses primarily, quote, home-brewed, unquote, methods as opposed to kits. And I think that is an area that is significant in the context of this witness' prior testimony, so that is a fairly brief and narrow area. Actually it is probably a couple of questions. The second area relates to a further description of the laboratory as a progressive reference laboratory that rapidly seeks to implement new DNA technologies, and I think that obviously is relevant to this inquiry as well. So my intent is not to get into the specifics of the proposed technique whatsoever.
THE COURT: All right. Thank you for the warning.
MR. CLARKE: The second relates to discovery, and in the same vein as Mr. Kelberg, I would like to give the Court a very brief history of what has occurred since last Monday. Either Tuesday or Wednesday of last week I was provided by Mr. Scheck six pages of Dr. Gerdes' notes. At the noon recess on Friday the Court may recall Dr. Gerdes' referred in his testimony to further notes that he had in his possession and at that time, per Mr. Scheck, those further notes were, quote, provided long ago to the People in discovery. Mr. Blasier indicated at that time that that was not the case and that in fact they were not provided to the People because they were never asked for. Now, I think that is an important comment, particularly in light of Mr. Cochran's comments just a few moments ago that the People are entitled to notes, and so here is a situation in which there were clearly notes that existed, Dr. Gerdes had them in his notebook, the Defense was apparently aware of them and yet we were denied discovery of them until Friday at noon of last week. Now, copies were made of those notes. They contain some important information that I will further address the witness about. We are not seeking a remedy as to this witness at this point, but I think it is important that that event be known, particularly in light of what Mr. Kelberg just stated and also in light of what will be the approaching witnesses at least by the information that we received last Friday as to the next DNA witnesses. It is my request that with respect to those DNA witnesses, and there are at this point three apparently to follow Dr. Gerdes, that Mr. Harmon would ask a brief moment to address the Court about obtaining discovery of those materials immediately, if that is acceptable to the Court.
THE COURT: No. I think you have just made the request on his behalf. I don't think you need to add anything more to that other than to name the witnesses.
MR. CLARKE: Well, at this point I think I would like to add that we have been notified that those individuals are Dr. Speed, Dr. Mullis and Dr. Shields, and at least in terms of any witnesses, particularly those who may involve statistics, that frankly it is a bit inconceivable that there aren't notes about calculations of population frequency data related to this case, and yet at this point we have received zero.
MR. SCHECK: Just the first matter is that I'm glad Mr. Clarke raised this issue. Mr. Blasier and Mr. Douglas, as the Court recalls, were handling the discovery and showed the Court various notes and had made a legal determination, since they are the California lawyers, under the Hines case, as to which notes were turned over or not. And the two sets of notes that we are talking about is that Dr. Gerdes made some handwritten notations when he did his lab tour and pictures were taken when all the LAPD people were there and they took the same pictures and they were there on the same tour. I had mistakenly believed that those notes had been turned over. That was just a mistake. And they were given to them at that time. I was informed by Mr. Blasier that those were in the category of notes that are turned over when the witness testified. They are not--they were not notations of any reports or calculations or examinations that he had done. I had made sure that the charts, contamination analysis, the unexpected allele analysis, had been turned over months ago along with Dr. Gerdes' report. The other notes that Mr. Clarke is referring to are handwritten notes that Dr. Gerdes made that are really inventories of what is contained in the raw material. In other words, he has a series of notebooks here that contain some but not all of the data and on the first page of each section he has notations about what is--like a table of contents as to what is in the other materials. And I would just note in passing that at various times when I approached the--the witness stand when Gary Sims was testifying, and I know it was true of Renee Montgomery and Mr. Yamauchi, other witnesses, they had similar kind of table of contents notes in terms of the materials and other notations to themselves that I suppose I now understand under the rules I could have asked for at that time, but I saw what they were. So those are the nature of those notes and I just want to make that clear, because I don't want to get into any trouble on discovery obligations. I am relying on the California lawyers here who have been to the Court and have gone through these materials.
THE COURT: Well, at this point, since Mr. Clarke is not asking for any particular sanction, let's not waste a lot of time.
MR. SCHECK: I just wanted to make clear to you exactly what the nature of this was.
THE COURT: Now, having said, what about the next three?
MR. SCHECK: Well, Mr. Neufeld will address Dr. Speed who he is going to put on, and as far as--and he is actually putting on the other two witnesses, and at this time we have nothing that--no reports and no notes in the nature of anything that we think we have to disclose at this time.
THE COURT: All right. Even in the nature of statistical calculations?
MR. SCHECK: No, there is no--there is no--I--I can--unless they are doing something now, there is nothing in the nature of statistical calculations that Dr. Speed is doing, I feel quite certain of that, but again, that is--Mr. Neufeld will know better than I, but I feel fairly certain of that.
THE COURT: All right. Deputy Magnera, let's have the jurors, please.
(Brief pause.)
MR. SCHECK: Your Honor, our only request, before he asks any questions about the term "Home-brewed," that we can find it in the report. He doesn't know the page.
(Discussion held off the record between Defense counsel.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: 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 cross-examination by Mr. Clarke. Good morning again, doctor.
DR. GERDES: Good morning.
THE COURT: Doctor, you are reminded, sir, you are still under oath. And Mr. Clarke, you may conclude your cross-examination.
MR. CLARKE: Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Good morning, Dr. Gerdes.
DR. GERDES: Good morning.
MR. CLARKE: Dr. Gerdes, do you recall testifying last week that at the LAPD laboratory where DNA extraction is done that the laboratory does not use a laminar flow hood?
DR. GERDES: Yes, that's correct.
MR. CLARKE: Now, you visited the laboratory; is that correct, in December of `94?
DR. GERDES: Yes.
MR. CLARKE: And you took a tour of the lab, is that a fair description?
DR. GERDES: Yes.
MR. CLARKE: And that tour included the DNA laboratory, correct?
DR. GERDES: Yes.
MR. CLARKE: All right. Your Honor, with the Court's permission I would like to display to the witness exhibit 1301 which is a photograph of the laboratory.
(Brief pause.)
MR. CLARKE: Dr. Gerdes, can you see that from that angle?
DR. GERDES: Yes.
MR. CLARKE: And in particular, with respect to this photograph, does this photo show the hood that you described during your testimony in the DNA lab at the LAPD?
DR. GERDES: It does.
MR. CLARKE: Now, as far as your tour of the laboratory back in December, did you make notes during that tour?
DR. GERDES: Yes.
MR. CLARKE: And in fact did you create rough, let's say, diagrams of various locations at the DNA laboratory at the Los Angeles Police Department?
DR. GERDES: Yes.
MR. CLARKE: Your diagrams included the area where DNA is extracted; is that right?
DR. GERDES: Yes.
MR. CLARKE: As well as where the hood is located?
DR. GERDES: I believe so.
MR. CLARKE: In terms of your keeping those notes, did you attempt to be as accurate as possible, setting aside exact scale?
DR. GERDES: Yeah. There was no scale and it was just to give me a rough idea so that I could go back to those and recall what I had seen.
MR. CLARKE: Now, did you have occasion to provide to the People last Friday notes that you took, including a diagram or diagrams of this particular tour?
DR. GERDES: Yes MR. CLARKE: All right. Your Honor, I would ask to have marked as People's next in order, a single page, which I'm showing to counsel.
THE COURT: 569.
(Peo's 569 for id = 1-page document)
(Discussion held off the record between Defense counsel.)
MR. CLARKE: May I approach the witness, your Honor?
THE COURT: You may.
MR. CLARKE: Dr. Gerdes, showing you People's exhibit 569, does that appear to be a Xerox copy of one of your notes?
DR. GERDES: Yes.
MR. CLARKE: And is that in fact the note that contains a rough sketch or rough diagram of the extraction area at the Los Angeles Police Department?
DR. GERDES: Yes. These notes were taken on 12/19, the first visit.
MR. CLARKE: December, 1994?
DR. GERDES: Correct.
MR. CLARKE: Your Honor, may I display a portion of this note also?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: Now, I don't know, Dr. Gerdes, can you see the screen from there?
DR. GERDES: Yes, I can.
MR. CLARKE: Does this appear to be a--well, the lower portion of that single page of notes, People's exhibit 569?
DR. GERDES: Yes.
MR. CLARKE: And this is your rough sketch or rough diagram of the DNA extraction area at the LAPD?
DR. GERDES: Yes.
MR. CLARKE: Now, there appears to be a fairly long rectangle, comparatively speaking, in the middle of the diagram which is--I'm not sure I can really read it, but it looks like it has two words; is that right?
DR. GERDES: Yes, it says "Sorting."
MR. CLARKE: And?
DR. GERDES: "Sorting bench" I believe is what it says.
MR. CLARKE: Just to the left of where the arrow is located?
DR. GERDES: Yes.
MR. CLARKE: All right. Off to the left of that long rectangle towards the top there appears to be a square with the term "Hood" written inside?
DR. GERDES: Yes.
MR. CLARKE: Now, off to the left of that, what are the other to words that precede the word "Hood"?
DR. GERDES: It says "Lam flow."
MR. CLARKE: Meaning what?
DR. GERDES: Well, at that time I hadn't really noticed that this wasn't a laminar flow hood. I put down "Laminar flow" and I didn't really realize until the second visit that this wasn't a laminar flow hood.
MR. CLARKE: Upon your initial visit to the Los Angeles Police Department you put down "Lam flow hood" to describe that particular hood?
DR. GERDES: Yes. That is incorrect.
MR. CLARKE: All right. Was that a mistake?
DR. GERDES: It was--it was something that I checked later on and found to be a mistake, yes.
MR. CLARKE: Now, Dr. Gerdes, you testified last week that your DQ-Alpha PCR typing is not ready for forensic testing, correct?
DR. GERDES: In my opinion, yes.
MR. CLARKE: And that continues to be your opinion today, correct?
DR. GERDES: Until adequate controls are incorporated to control the contamination problem, that continues to be my opinion.
MR. CLARKE: And it is your opinion that it should be used for either including potential donors of DNA or excluding?
MR. SCHECK: Objection, asked and answered.
THE COURT: Overruled.
DR. GERDES: Yes.
MR. CLARKE: Are you familiar with a method of typing what's called mitochondrial DNA?
DR. GERDES: Yes.
MR. CLARKE: Does that use PCR also?
DR. GERDES: It does to produce a product that is unsequenced.
MR. CLARKE: Okay. Without getting into great detail, does that method involved, after amplifying a sample, basically looking at the pieces of DNA information, these liters, A's, T's, G's and C's one by one?
DR. GERDES: Yes.
MR. CLARKE: Is that a method that is in place in forensic laboratories around the world?
DR. GERDES: Not on a routine basis.
MR. CLARKE: In your opinion is it ready for use in forensics?
DR. GERDES: No.
MR. CLARKE: You referred last week to a number of scientific publications discussing DQ-Alpha as, and I think you used the term "Demonstration papers"?
DR. GERDES: In my opinion, that is what they are, yes.
MR. CLARKE: Now, you have testified for approximately the last five years that PCR DQ-Alpha typing should not be used in forensics, correct?
DR. GERDES: I've been very consistent in expressing my opinions about contamination and my concerns, yes.
MR. CLARKE: And that has been for about five years?
DR. GERDES: Yes.
MR. CLARKE: You have actually come to courtrooms like this and testified the same way as far as that particular opinion?
DR. GERDES: That is--
MR. CLARKE: For the last five years?
DR. GERDES: That's true.
MR. CLARKE: As far as your own laboratory, is it correct that most of the methods that you use in your lab in Denver are methods that don't involve the use of kits?
DR. GERDES: Most of the--no, that is not true.
MR. CLARKE: Are most of the tests that you use tests that do involve the use of kits?
DR. GERDES: Yes.
MR. CLARKE: You mentioned chlymadia. That is one of the tests for a sexually transmitted disease that you use a kit that is actually manufactured by Roche, correct?
DR. GERDES: That's correct.
MR. CLARKE: What are the other tests that you use a kit in?
DR. GERDES: Well, there is the vast majority of the testing our laboratory does; testing for antibodies for HIV, THLV, I can go on and on. It is probably a page-long list of things, most of which we do use FDA-approved kits.
MR. CLARKE: Are any of these kits manufactured--well, let me rephrase. Were any of these kits developed in your own laboratory?
DR. GERDES: No.
MR. CLARKE: Is it then your testimony that most of your methods--well, let me strike that. Rephrase that if I may, your Honor. As far as a grant proposal that you described during your direct examination, do you recall that testimony?
DR. GERDES: Yes.
MR. CLARKE: This related to a grant that you have fairly recently received; is that right?
DR. GERDES: Yes.
MR. CLARKE: That related to a particular technique developed in your laboratory; is that right?
DR. GERDES: It hasn't been developed yet. That is what the grant is for. We are proposing to develop that technology.
MR. CLARKE: So the grant is basically your receiving, your laboratory, receiving money to develop a particular technique?
DR. GERDES: Yes.
MR. CLARKE: As far as that grant, does this process involve your laboratory submitting a proposal to a government agency?
DR. GERDES: Yes.
MR. CLARKE: And then the government--I'm sorry. And the government agency then uses that proposal to decide whether or not to grant your laboratory money to look at this proposed technique?
DR. GERDES: That's correct.
MR. CLARKE: As part of that proposal are you required to describe a number of different things in this application for money?
DR. GERDES: Of course.
MR. CLARKE: Including the technique that you wished to try to devise?
DR. GERDES: That is true.
MR. CLARKE: As well as information about the laboratory?
DR. GERDES: Yes.
MR. CLARKE: As well as information about the individuals who would be involved in developing this technique?
DR. GERDES: That is true.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: Could I have a moment, your Honor?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: Dr. Gerdes, in this particular grant proposal--are you familiar with it?
DR. GERDES: Of course.
MR. CLARKE: And you have read the entire document?
DR. GERDES: I wrote it.
MR. CLARKE: You wrote the entire document? All right. Isn't it true that in that document you state, in reference to your laboratory: "Most of our testing could be described as home-brewed as opposed to commercial kits."
MR. SCHECK: Your Honor, ask that the witness be shown the entire paragraph.
THE COURT: Show him what page it is.
MR. CLARKE: Dr. Gerdes, if I can refer you to what appears to be page 31 of the proposal.
DR. GERDES: What part of this page are you at? Oh, here, I see it. Okay.
MR. CLARKE: That statement that I just read, was that a statement that you wrote in that proposal?
DR. GERDES: Yes. It refers to the fact that in our laboratory we do go through some research and development and then it is progressed onto testing that is routine, and it has to do with our research and development department. It has nothing to do with the testing menu that we offer at the present time, which is what you asked me initially.
MR. CLARKE: Well, is it then correct that most of the testing methods in your laboratory are, quote, home-brewed?
DR. GERDES: Most of the newer methods. This is talking about the next generation, if you will, from our laboratory. Most of what we do at the present time are kits that are FDA approved. What we hope to do is to move into the field of development of new diagnostic technologies, and we have been involved in that process over the--since I have been hired. That is one of my jobs. But we are not yet using those types of testing for routine testing.
MR. CLARKE: What does "Home-brewed" mean?
DR. GERDES: It simply means that you are developing the test yourself, as opposed to buying a kit.
MR. CLARKE: You have described the chlymadia test kit as FDA approved, correct?
DR. GERDES: Correct.
MR. CLARKE: What are the other testing kits in case work that are FDA approved in your lab?
DR. GERDES: For DNA?
MR. CLARKE: Yes.
DR. GERDES: That would be the only one for DNA. All of the kits that we use, other than that particular kit, involve serological methods.
MR. CLARKE: Which don't involve testing DNA?
DR. GERDES: Correct.
MR. CLARKE: Could I have just a moment again, your Honor?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, as far as degraded samples, Dr. Gerdes, and we spoke about that last week, your concern about the reliability of results obtained using PCR-based testing in forensics is based really on the nature of the specimen? In other words, the fact that it is a bloodstain that may have been on a sidewalk as opposed to blood removed from a patient in a hospital; is that correct?
DR. GERDES: That is one of the aspects, yes.
MR. CLARKE: Now, as far as this use of DQ-Alpha testing, are you familiar with its use on cases in which defendants have been, for instance, in prison for a number of years?
DR. GERDES: Yes.
MR. CLARKE: And in fact DQ-Alpha testing has been used to determine years later that a person may have been innocent of a crime; is that correct?
DR. GERDES: It has been done for that, yes.
MR. CLARKE: And in fact inmates have been released from prison as a result of the--I'm sorry--as a result of typing results obtained by using this PCR DQ-Alpha method?
DR. GERDES: That's true.
MR. CLARKE: Those cases may involve cases that occurred years earlier; is that correct?
DR. GERDES: That's true.
MR. CLARKE: Your concerns about degraded samples would apply equally to those cases as well; isn't that true, where the samples may be years old?
DR. GERDES: Yes.
MR. CLARKE: Is it your view that in those--under those circumstances that inmates should not be released from prison as a result of DQ-Alpha typing conducted what may be years later?
MR. SCHECK: Objection, calls for a legal conclusion.
THE COURT: Overruled.
DR. GERDES: I think you have to take every case by case in terms of how much weight to put on that or whatever, but my position has always been consistent that until you have more adequate controls, and in specific in those kind of samples where they are old, degraded and in small quantities, this technology has a tremendous risk of error.
MR. CLARKE: As far as the samples that were not amplified and typed at the Los Angeles department--and I asked you a number of questions of about that last week, correct?
DR. GERDES: Excuse me. Go ahead.
MR. CLARKE: Sure. As far as the samples that were not amplified and typed, in other words, they weren't subjected to this PCR process and typed at the LAPD, do you recall that?
DR. GERDES: Yes.
MR. CLARKE: Isn't it true that independent laboratories who reach the same results adds confidence to the results themselves? In other words, the layer or level of confidence that an analyst can have in the accuracy of those results?
DR. GERDES: It will give you confidence from that step on, but what happens in the previous steps can't be cross-checked.
MR. CLARKE: Isn't it correct, Dr. Gerdes, that if you work in two separate labs and try and come up independently with the same result, then that is always going to be a confirmation of the test and give you more reliability?
DR. GERDES: Only if neither--both labs handled totally those specimens independently. That means they are collected and sent, as we have described earlier in the clinical situation, to both labs and are never exposed one lab to the other.
MR. CLARKE: Haven't you previously testified to what I just stated, Dr. Gerdes?
DR. GERDES: Of--I may have, but that was prior to more recent cases where it has become more and more obvious that there are problems early on.
MR. CLARKE: Objection, move to strike. Nonresponsive, your Honor.
THE COURT: Sustained. The last part of the answer is stricken. The jury is to disregard.
MR. CLARKE: Dr. Gerdes, haven't you testified previously to what I just read to you?
DR. GERDES: Yes.
MR. CLARKE: Samples 48, 50 and 52, the bloodstains at Bundy, were swatches sent to different laboratories, correct?
DR. GERDES: Correct.
MR. CLARKE: As far as Cellmark is concerned--and I would like to shift your attention to known samples or if we use the term "Reference samples," can that indicate, as far as these questions, we are talking about known samples from the people who may be involved in a case, all right?
DR. GERDES: Correct.
MR. CLARKE: Referring in this case to Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: As well as Nicole Brown and Ronald Goldman?
DR. GERDES: Yes.
MR. CLARKE: Isn't it correct that when Cellmark conducted its testing on the known samples they were done blindly?
DR. GERDES: They were coded, yes.
MR. CLARKE: And by "Coded," what do you mean?
DR. GERDES: They were given a code number when they arrived at the laboratory and then the technician would type it from there.
MR. CLARKE: Well, in addition--
DR. GERDES: So blinded if you want to call it that, yes.
MR. CLARKE: In addition to having a code number, isn't it correct that the actual known reference samples weren't labeled for Cellmark's purposes as to who of the three people they came from?
DR. GERDES: As they received them?
MR. CLARKE: Yes.
DR. GERDES: I don't recall if that is the case. I believe--I know they were labeled with a code name, but I'm not sure if they will have the information as to who they he were from. I would have to double-check.
MR. CLARKE: All right. Do you have information at your hand would be able--I'm sorry--help you answer that question?
DR. GERDES: Perhaps--perhaps I do.
(Discussion held off the record between the Deputy District Attorneys.)
DR. GERDES: That appears to be correct. They were labeled with a code name and it doesn't have who it is next to it.
MR. CLARKE: So Cellmark was in fact given these known samples and they were coded C-1, C-2 and C-3, weren't they?
DR. GERDES: That's correct.
MR. CLARKE: And they were not given information about which sample was Mr. Simpson's?
DR. GERDES: That's correct.
MR. CLARKE: Which sample was Mr. Goldman's?
DR. GERDES: That's correct.
MR. CLARKE: And what sample was Nicole Brown's?
DR. GERDES: Correct.
MR. CLARKE: In your opinion that is an important step?
DR. GERDES: I think that is the way to do it, yes.
MR. CLARKE: Isn't it also correct that as far as the DQ-Alpha types that the Department of Justice typed that those reference samples were done after most of the evidence was typed?
DR. GERDES: I believe that is true.
MR. CLARKE: And in fact isn't it true that the known samples were not typed until after there were PCR results on several of the Bundy blood drops at the Department of Justice?
DR. GERDES: I don't recall if that is specifically the case, but that is possible.
MR. CLARKE: After several of the stains from the Bronco were tested by the Department of Justice?
DR. GERDES: That is possible.
MR. CLARKE: Well, isn't it true?
DR. GERDES: I don't recall. I can look it up if you would like and try and look that up.
MR. CLARKE: Is that something you think you can find in your notes?
DR. GERDES: I think I can.
MR. CLARKE: All right.
(Brief pause.)
DR. GERDES: That appears to be the case, yes.
MR. CLARKE: Those reference samples were typed, after, for instance, one of the blood trail at Rockingham was typed, one of those drops also?
DR. GERDES: That's correct. That's correct.
MR. CLARKE: As well as most of the samples on the glove?
DR. GERDES: Yes.
MR. CLARKE: As well as most of the samples on the socks as well?
DR. GERDES: At DOJ, yes.
MR. CLARKE: In your view is that also an important step to take, to type those reference samples after evidence is typed?
DR. GERDES: I think that was appropriate.
MR. CLARKE: Now, I would like to return, if I could, Dr. Gerdes, to the fact that in your laboratory you develop methods for use in DNA typing in your lab, correct?
DR. GERDES: Correct.
MR. CLARKE: Part of your function at the laboratory--and I believe you said you are director of the research and development arm of the lab?
DR. GERDES: That is one of the titles I have, yes.
MR. CLARKE: And in that role, as far as the research and development role of the laboratory, you try to develop methods that other laboratories can use, correct?
DR. GERDES: Yes.
MR. CLARKE: And in fact your proposal for a grant is one such proposal, to develop a specific technique to type DNA that other laboratories can use?
DR. GERDES: Hopefully, yes.
MR. CLARKE: You want to make sure that your techniques operate properly before they are used, for instance, in clinical case work?
DR. GERDES: Of course.
MR. CLARKE: That is absolutely essential, isn't it?
DR. GERDES: Of course.
MR. CLARKE: You also want to be able to market or sell these methods as quickly as possible; isn't that correct?
DR. GERDES: Yes.
MR. CLARKE: Is your laboratory committed to rapidly implementing DNA technology to diagnostic testing?
DR. GERDES: We--yes.
MR. CLARKE: And in fact you want to get these new techniques out there and marketed as soon as possible, correct?
DR. GERDES: We have a projection as to how long this will take. The technology we are describing is so new it is going to take three to five years before we even confirm the technology itself, but we are really not talking about marketing for that many years.
MR. CLARKE: Well, Dr. Gerdes, isn't it true that your laboratory is committed to getting these newly developed techniques into the clinical laboratory as quickly as possible?
DR. GERDES: We would--we would like that, yes.
MR. CLARKE: And in fact that is what you told the United States government as far as your grant proposal, didn't you?
DR. GERDES: Yes.
MR. CLARKE: As far as--we've talked about PCR as one technique. There is also the technique of RFLP that you have discussed in your direct examination, correct?
DR. GERDES: Yes.
MR. CLARKE: Can we call those different methods or methodologies? What word would you feel comfortable with to describe that there are two different techniques?
DR. GERDES: Different methods is fine.
MR. CLARKE: Isn't it correct that a consistency in result, that is a result is giving the same answer from both PCR testing as well as RFLP testing on the same sample, is one measure of the accuracy of the PCR technique?
DR. GERDES: It does tell you some information. The RFLP is a more discriminating test, so you would expect that there would be a number of occasions where the PCR would include someone and RFLP would exclude them.
MR. CLARKE: Okay. And that is certainly one characteristic of RFLP typing, that it is more powerful in telling people apart, correct?
DR. GERDES: Correct.
MR. CLARKE: If you saw PCR results that, for instance, exclude someone and from the same sample an RFLP included the person, that would give you great pause for concern about PCR typing, wouldn't it?
DR. GERDES: Not necessarily. It depends on how many probes and in any genetic analysis you look at multiple markers, and once you find an exclusion, if it is confirmed, especially, then you have to believe that.
MR. CLARKE: Well, let's make it more specific. Let's say that on a particular sample you saw a five-probe RFLP match. That would be powerful evidence of who that sample came from, wouldn't it?
DR. GERDES: It would.
MR. SCHECK: Objection, vague.
THE COURT: Overruled.
MR. CLARKE: If you saw a PCR result on the same sample that revealed results that excluded that person, wouldn't that give you concern about the PCR result?
DR. GERDES: In a forensic setting, yes.
MR. CLARKE: So therefore if there is consistency between the RFLP results and PCR results, doesn't that give you greater confidence in the PCR results?
DR. GERDES: It can.
MR. CLARKE: Well, haven't you testified previously, Dr. Gerdes, that you have no problem with the RFLP technology?
DR. GERDES: I have.
MR. CLARKE: And you have testified in this case that you have no problem with several of the RFLP matches in this case; isn't that true?
DR. GERDES: That's right.
MR. CLARKE: Isn't it in fact the case that if there is an RFLP match on a sample, in your opinion that validates the PCR result on that sample?
DR. GERDES: It can.
MR. CLARKE: Haven't you previously testified that it does?
DR. GERDES: I probably have in the past, yes.
MR. CLARKE: Isn't it true that if there is an RFLP match on the same sample that a PCR result is obtained, that that RFLP match confirms the PCR result on that sample?
DR. GERDES: Of course you have to look at the sample. Even in RFLP there are going to be circumstances where those kind of results need to be looked at with suspicion in terms of whether it is a mixed sample and the same sorts of issues that we discussed earlier in general in terms of DNA technology and forensics, so you can't make a broad blanket general statement like that. You need to look at the circumstances for each item even in an RFLP test.
MR. CLARKE: Dr. Gerdes, haven't you previously testified that if you get a PCR result on a sample and you already have an RFLP result on that sample, that that RFLP result confirms the PCR result?
DR. GERDES: Assuming there are no difficulties or suspicions about the nature of the sample or mixtures or other complications like that.
MR. CLARKE: Isn't it true, doctor, that if you cross-check the PCR results and RFLP results on enough samples in a given case that that is a significant method of validation?
DR. GERDES: I wouldn't call it validation.
MR. CLARKE: Haven't you used those exact words, Dr. Gerdes?
DR. GERDES: I believe maybe three years ago I might have.
MR. CLARKE: And in fact those words that you used were just as I stated to you, were they not, that if you cross-check the PCR results and RFLP results in a given case on enough samples that that is in fact a significant method of validating the accuracy of the PCR results?
DR. GERDES: I probably said that, but you have to look at the context around that. I'm sure I also said that you have to look at the sample and the things that I've talked about here.
MR. CLARKE: When you said it, did you mean it?
DR. GERDES: Yes.
MR. CLARKE: May I have a moment, your Honor?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Gerdes, didn't you in fact testify to what I just read to you less than one year ago?
DR. GERDES: I don't remember how long ago it was.
MR. SCHECK: Your Honor, I think that we have--should have an opportunity to see what he is referring to. We thought those were the rules.
THE COURT: Overruled at this point, but if you are going to confront him with some specifics, we need to see it.
MR. CLARKE: I understand.
MR. CLARKE: Do you recall testifying in a case involving a Defendant named McIntosh in the state of California?
DR. GERDES: Yes, I do.
MR. CLARKE: Isn't it correct that in that case you testified to the fact that if there is this cross-check on enough samples that that is a significant method of validation?
MR. SCHECK: Objection, needs to be confronted with the specifics.
THE COURT: Objection. The form of the question.
MR. CLARKE: Dr. Gerdes, with regard to this McIntosh case, didn't you testify in that case under a year ago?
DR. GERDES: Yes.
MR. CLARKE: Isn't it in that case that you made the specific comments that I just read to you?
DR. GERDES: I may have.
MR. SCHECK: Your Honor, I have--
THE COURT: Counsel, do you have volume, line, page?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Can we approach the bench?
THE COURT: You need to have that.
MR. CLARKE: (Nods head up and down.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: May I proceed and return to that, your Honor?
MR. SCHECK: Your Honor, I'm going to move to strike unless he can show the specific reference.
THE COURT: Overruled. Proceed.
MR. CLARKE: Thank you.
THE COURT: It will be subject to a motion to strike, though.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: In your view, Dr. Gerdes, is a 5-probe RFLP match a significant match?
DR. GERDES: Yes.
MR. CLARKE: What about a 6-probe match? Is that significant?
DR. GERDES: Yes.
MR. CLARKE: An 8-probe match?
DR. GERDES: Yes.
MR. CLARKE: Is a 14-probe match on a sample significant as far as RFLP typing?
DR. GERDES: Yes.
MR. CLARKE: Is a 14-probe match significant whether it is PCR or RFLP on a sample?
DR. GERDES: It depends on the samples. We need to--again, you know, all of these are significant in terms of the number of matches, but you have to, of course, take into consideration the nature of the sample, whether there is a mixture or not. There are other things that complicate this issue. I can't just give you a blanket statement that that many probes is significant unless I know the nature of the samples and whether they are mixtures and those sorts of issues.
MR. CLARKE: If you see a sample that is a 6-probe match that is showing either one or two bands that clearly match the one or two bands that an individual has, that is a significant match, isn't it?
MR. SCHECK: Objection, "Validated."
THE COURT: Overruled.
DR. GERDES: Yes.
MR. CLARKE: Whether it is eight or fourteen, if six is significant, anything more is significant; is that right?
DR. GERDES: That's true.
MR. CLARKE: As far as this case did you examine the RFLP results obtained by the laboratories in this case?
DR. GERDES: I did.
MR. CLARKE: And you are familiar with them?
DR. GERDES: Yes.
MR. CLARKE: Isn't it correct, Dr. Gerdes, that as far as the RFLP and PCR results in this case that the RFLP results confirm the PCR results in this case?
DR. GERDES: In certain items, yes.
MR. CLARKE: It is true on a number of items, isn't it?
DR. GERDES: Yes.
MR. CLARKE: And in fact this case involves many RFLP matches, doesn't it?
DR. GERDES: Yes.
MR. CLARKE: Have you seen a case with more RFLP matches in your history of consulting with criminal defendants?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. CLARKE: Your Honor, at this time I have a board that I would like to be marked as People's next in order.
THE COURT: 570--570.
(Peo's 570 for id = posterboard)
MR. CLARKE: 570?
THE COURT: 570.
(Brief pause.)
MR. CLARKE: Actually would it--I think in the normal place if that is acceptable.
DR. GERDES: May I step down?
MR. CLARKE: Yes, please, doctor. Thank you.
DR. GERDES: (Witness complies.)
MR. CLARKE: Now, Dr. Gerdes, I would like to show you what has been marked People's exhibit 570, I believe.
THE COURT: 570.
MR. CLARKE: This board is entitled at the top "Results of RFLP DNA analysis"; is that right?
DR. GERDES: Yes.
MR. CLARKE: And then there appear to be a number of different samples listed on the far left; is that right?
DR. GERDES: Yes.
MR. CLARKE: And then across on the right are columns entitled basically which laboratory produced the result?
DR. GERDES: Yes.
MR. CLARKE: Followed by what the RFLP results were in terms of the number of probes?
DR. GERDES: Yes.
MR. CLARKE: And then lastly, individuals who are not excluded from those particular samples as having been the donors of the DNA; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Now, turning your attention first, there appear to be four samples from LAPD item no. 9, the glove; is that correct?
DR. GERDES: Yes.
MR. CLARKE: And on those--and let's start with the first sample and can we use G1? Is that a way of telling the four samples apart?
DR. GERDES: Yes.
MR. CLARKE: That sample revealed results from the Department of Justice after testing at five RFLP probes, correct?
DR. GERDES: Correct.
MR. CLARKE: And those results excluded, that is, indicated a mixture of Nicole Brown and Ronald Goldman, correct?
DR. GERDES: Correct.
MR. CLARKE: In your testimony you have not criticized the accuracy of that result, correct?
DR. GERDES: That's correct.
MR. CLARKE: And in fact in your testimony you have conceded that that result is accurate?
DR. GERDES: Yes.
MR. CLARKE: Incidentally, when you use the term, what does a significant match mean? I'm not sure that question was clear. Let me rephrase it. As far as a 5-probe match or a 6-probe match and so on being a significant match, what does the term "Significant" mean in that context to you?
DR. GERDES: Umm, as you know, there is a controversy as to how--you know, what level of significance there is, but in my opinion five probes would be certainly very significant in terms of putting some weight as to that match.
MR. CLARKE: And in fact in your opinion that would be strong evidence that in fact a sample that matches at five probes came from a particular individual who matches that sample?
DR. GERDES: Again, it is controversial and I am not a population biologist, I am not involved in that controversy, but that is--it would be, in my opinion, significant.
MR. CLARKE: When you perform a paternity analysis how many probes do you routinely use in determining whether or not a father is the father of a child?
DR. GERDES: Paternity you are comparing apples and oranges. It is different statistics, it is done in an entirely different way, so it is really not a good comparison, but we do use five probes.
MR. CLARKE: Five probes?
DR. GERDES: Yeah.
MR. CLARKE: Would that be the same number as were used on at least item G1?
DR. GERDES: Yes.
MR. CLARKE: All right. Turning to G2, those results reflected a 5-probe RFLP match to both Nicole Brown and Ronald Goldman, correct?
DR. GERDES: Correct.
MR. CLARKE: And you have no scientific criticism of that result?
DR. GERDES: No.
MR. CLARKE: Turning to G3, that result revealed an 8-probe match to Ronald Goldman, correct?
DR. GERDES: Yes.
MR. CLARKE: And in your view that result was appropriate, correct?
DR. GERDES: Yes.
MR. CLARKE: And then lastly on the gloved area, G4, the results showed a 5-probe RFLP match to both Ronald Goldman and Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: No criticism of that result?
DR. GERDES: That's correct.
MR. CLARKE: Turning to the Rockingham foyer, item no. 12, Cellmark produced a 5-probe match to Mr. Simpson using RFLP, correct?
DR. GERDES: Correct.
MR. CLARKE: You don't have any criticism of the accuracy of the results obtained by Cellmark, correct?
DR. GERDES: That's correct.
MR. CLARKE: Turning to the sock, in fact there were a total of, and let's start with the ankle area, both the Department of Justice and Cellmark tested the ankle area of the sock using RFLP, correct?
DR. GERDES: Correct.
MR. CLARKE: That testing revealed at the Department of Justice an 11-probe match to Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: Cellmark also probed staining from that same sample at five probes; is that right?
DR. GERDES: Correct.
MR. CLARKE: How many probes does that total?
DR. GERDES: Sixteen.
MR. CLARKE: Is that then a 16-probe with Nicole Brown?
DR. GERDES: It is.
MR. CLARKE: If two of the probes used by Cellmark and DOJ were the same, would it then be a 14-probe match in reality?
DR. GERDES: Yes.
MR. CLARKE: And that is in fact the case, isn't it, Dr. Gerdes?
DR. GERDES: Yes, yes.
MR. CLARKE: That two of the probes used by those laboratories are the same?
DR. GERDES: Yes.
MR. CLARKE: You have no quarrel with the accuracy of the results on the sock; is that right?
DR. GERDES: That's correct.
MR. CLARKE: Turning to the Bundy walkway, item no. 52, Cellmark produced a 5-probe match with Mr. Simpson, correct?
DR. GERDES: Correct.
MR. CLARKE: And in fact that data correctly reveals a 5-probe match with Mr. Simpson, correct?
DR. GERDES: In this particular item there is very little DNA and in this particular item I disagree with that.
MR. CLARKE: Is it your opinion that Dr. Cotton was incorrect when she concluded that that match existed with regard to Mr. Simpson?
DR. GERDES: She is not incorrect in concluding the match, but the source of the DNA here is what the issue is. That is where the question is. There is very little DNA. It is down at the level of DNA where cross-contamination could be the explanation and the circumstances under which that particular item was handled makes that a distinction possibility.
MR. CLARKE: Dr. Gerdes, is it your testimony that the RFLP results on item no. 52 came from contamination?
DR. GERDES: Yes.
MR. CLARKE: And in fact is it your opinion to a reasonable scientific certainty that item 52 revealed DNA that was not from the donor of the bloodstain but in fact came from another source?
DR. GERDES: I think it is consistent with that.
MR. CLARKE: You are not offering an opinion that it came, but you are raising the possibility; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: Turning to item no. 78, the drop that revealed a 5-probe match to Nicole Brown and Ronald Goldman, correct?
DR. GERDES: Correct.
MR. CLARKE: And then lastly on this board, referring to item no. 117, the Bundy rear gate, first of all, how many probes--there doesn't appear to be anything written in under "RFLP results," correct?
DR. GERDES: Correct.
MR. CLARKE: Can you tell us how many probes that sample matched Mr. Simpson at?
DR. GERDES: I don't recall offhand. At least five, but I'm not sure how many they--
MR. CLARKE: All right. Is that something that you can determine from your notes?
DR. GERDES: I did not bring the RFLP notes with me.
MR. CLARKE: Are they available in the courtroom?
DR. GERDES: (No audible response.)
MR. CLARKE: As far as your notes?
DR. GERDES: My notes, no.
MR. CLARKE: Yes. All right.
MR. SCHECK: I could suggest--
MR. CLARKE: I'm sorry.
MR. SCHECK: --the results board has them.
THE COURT: Proceed.
MR. CLARKE: Object to counsel's comments.
THE COURT: Proceed.
MR. CLARKE: Dr. Gerdes, are you guessing it was at five probes?
DR. GERDES: Until I look that up I don't know exactly how many probes there were on that particular item.
MR. CLARKE: Your testimony has revealed you have no criticism of that match to Mr. Simpson; is that correct?
DR. GERDES: That's correct.
MR. CLARKE: All right. Thank you, your Honor.
(Brief pause.)
MR. CLARKE: Incidentally, Dr. Gerdes, you are not familiar with the fact that there were serology tests conducted on many of these evidence items, correct?
MR. SCHECK: Asked and answered.
THE COURT: We have gone over this.
MR. CLARKE: Merely foundational to the next question.
THE COURT: All right. Proceed.
DR. GERDES: I'm not familiar with the--I have not seen the reports. I am familiar that they were done, but I'm not familiar with the specifics.
MR. CLARKE: Isn't it true that if the serology results confirmed--well, let me rephrase. Isn't it true that if the serology results were consistent with the PCR results that serology would be another methodology that the accuracy of the PCR results can be cross-checked against?
MR. SCHECK: Objection, asked and answered, beyond the scope.
THE COURT: Sustained. You have already asked that question.
MR. CLARKE: Do you utilize serology to confirm the accuracy of any of the results in your own laboratory?
DR. GERDES: It is the other way around. We have serological tests where we may do PCR to confirm that.
MR. CLARKE: So you use PCR to confirm the accuracy of your serology results?
DR. GERDES: In certain circumstances.
MR. CLARKE: Incidentally, serologic techniques aren't nearly as sensitive as PCR, correct?
DR. GERDES: That's correct.
MR. CLARKE: It would be much harder to cross-contaminate a sample and obtain serological results than it would a PCR result, correct?
DR. GERDES: In general that is true, yes.
MR. CLARKE: In other words, cross-contamination isn't the same concern with serologic techniques because they are not as sensitive as PCR is to detect small amounts?
DR. GERDES: It depends--you have to look at the specific test and so forth, but in general that is true.
MR. CLARKE: As far as cross-checking by these different techniques, PCR and RFLP, isn't it true that additional markers beyond DQ-Alpha, such as polymarker, the five polymarkers and D1S80, give the analyst an opportunity to cross-check the accuracy of results even more?
DR. GERDES: Again, you have to talk about the specifics and in the polymarker system there is a 2-probe--in most cases there are two allele systems. You know, two of them are three-allele and the rest are two-allele systems, and if you are dealing with mixtures, such as a contaminant would introduce, it is frequently not informative because you have only two, you have an a and a B, and if you have both, then that includes everybody, so it is not quite as informative as DQ-Alpha being able to look at the possibility of additional human DNA being there.
MR. CLARKE: In other words, as to the polymarkers, they don't have a lot of different variations, correct?
DR. GERDES: Right.
MR. CLARKE: Individually?
DR. GERDES: That's correct.
MR. CLARKE: But they can present very informative results when you look at many of them, such as the five?
DR. GERDES: It is possible, yes.
MR. CLARKE: D1S80 is another marker, correct?
DR. GERDES: Yes.
MR. CLARKE: And in fact it has more variations or different possible types than the five polymarkers?
DR. GERDES: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, I would like, with the Court's permission, to use People's exhibit 259, the Bundy results board.
(Brief pause.)
MR. CLARKE: Now, Dr. Gerdes, have you had an opportunity to see either this board or a board containing similar information?
DR. GERDES: Yes.
MR. CLARKE: All right. And I would like to start, if I could, with what is labeled at the top "Item no. 47, first drop by victims."
DR. GERDES: Yes.
MR. CLARKE: That particular sample was typed using PCR, correct?
DR. GERDES: It was.
MR. CLARKE: And how many different genetic markers produced a result consistent with Mr. Simpson?
DR. GERDES: Well, there were the--the DQ-Alpha, D1S80 and the polymarkers.
MR. CLARKE: Which would be how many total genetic markers?
DR. GERDES: Seven.
MR. CLARKE: Turning your attention to item 48, how many genetic markers produced a result on that particular item from the Bundy walkway that were consistent with Mr. Simpson?
DR. GERDES: Seven.
MR. CLARKE: Same seven genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Turning now to item 49, how many genetic markers produced that result using PCR consistent with Mr. Simpson?
DR. GERDES: They didn't get a D1S80, so that would be six.
MR. CLARKE: Turning to item no. 50, how many PCR-based genetic markers produced that sample result consistent with Mr. Simpson?
DR. GERDES: Seven.
MR. CLARKE: Turning to item no. 52, there were five RFLP probes consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: Were there also PCR markers that produced results consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: How many?
DR. GERDES: The seven.
MR. CLARKE: Is it then the case that item 52 matched Mr. Simpson at twelve different genetic markers?
DR. GERDES: Again the issue here is the origin of that blood--
MR. CLARKE: Objection, move to strike, nonresponsive.
DR. GERDES: --not the match.
THE COURT: Sustained. Ask the question again.
MR. CLARKE: Dr. Gerdes, isn't it correct that item no. 52, the Bundy blood drop, matched Mr. Simpson at twelve different genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Item no. 56--and first of all, let me return for a moment, if I can, to 47 through 52. Isn't it correct that the PCR-based results for 47, 48, 49, 50 and 52 were all consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: In that series of five blood drops it is also correct that an RFLP match existed to Mr. Simpson, correct?
DR. GERDES: Correct.
MR. CLARKE: Turning to item no. 56, how many genetic markers typed using PCR were consistent with Nicole Brown?
DR. GERDES: Five.
MR. CLARKE: In other words, the five polymarkers, correct?
DR. GERDES: Right.
MR. CLARKE: And you would not include DQ-Alpha because one of the controls didn't operate properly?
DR. GERDES: Correct.
MR. CLARKE: Turning to item no. 78, how many PCR markers were consistent with both Ronald Goldman and Nicole Brown?
DR. GERDES: Well, there is a problem with that particular combination. Okay. I will--D1S80--there is six.
MR. CLARKE: In other words, the five polymarkers and the DQ-Alpha result, those types showed a mixture, correct?
DR. GERDES: Yes.
MR. CLARKE: And that mixture from those six PCR markers; is that right?
DR. GERDES: Yes.
MR. CLARKE: And in fact the results of those six markers showed that neither Nicole Brown nor Ronald Goldman could be excluded, correct?
DR. GERDES: Again when you get to mixtures on the polymarker, you really need to look at those systems that are informative in terms of if you have a combination that picks up both of them, then it includes everybody.
MR. CLARKE: And in fact as to some of the polymarker results in mixtures, that is true, isn't it, where you see each of the combinations possible?
DR. GERDES: Yes.
MR. CLARKE: Turning to--and while we are on 78, as far as the RFLP technology, you have no quarrel with the fact that that particular sample produced a 5-probe RFLP match to both Nicole Brown and Ronald Goldman?
DR. GERDES: That is true.
MR. CLARKE: Would that then constitute eleven different genetic markers as to that sample?
DR. GERDES: Yes.
MR. CLARKE: Turning to the nail clippings, and perhaps we can deal with them all at once, did they produce the same results on each of the three separate items?
DR. GERDES: Yes.
MR. CLARKE: How many different genetic markers produced results consistent with Nicole Brown on each of them?
DR. GERDES: Seven.
MR. CLARKE: And lastly, turning to the rear gate, stains 115, 116 and 117, as to item no. 117, does eight probes sound correct?
DR. GERDES: Yes.
MR. CLARKE: As to the RFLP match with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: How many different PCR markers were also consistent with Mr. Simpson?
DR. GERDES: There is two.
MR. CLARKE: Referring to DQ-Alpha and D1S80?
DR. GERDES: Correct.
MR. CLARKE: Dr. Gerdes, isn't it the case that with respect to the Bundy blood results the RFLP results confirm the PCR markers, whether it is one marker or all seven markers?
DR. GERDES: On that one item, which--it does on the face of it, yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Your Honor, at this time I would like to use exhibit 260, a similar results board.
THE COURT: All right.
(Brief pause.)
MR. CLARKE: Dr. Gerdes, referring you to what is People's exhibit 260, have you again either seen this board or a board with similar results?
DR. GERDES: Yes.
MR. CLARKE: This board contains a number of results obtained using PCR, correct?
DR. GERDES: Yes.
THE COURT: And for the record, this is "Results of DNA analysis of the Bronco."
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Referring you to the first sample, item no. 23, from the interior of the Bronco, did that produce a result consistent with Mr. Simpson at one genetic marker typed following PCR?
DR. GERDES: Yes.
MR. CLARKE: Does this board in fact show PCR results only from inside the Bronco?
DR. GERDES: Yes.
MR. CLARKE: Referring you to the second item, no. 24, how many genetic markers were typed that were consistent with Mr. Simpson?
DR. GERDES: One.
MR. CLARKE: Referring to 25, how many genetic markers were typed consistent with Mr. Simpson?
DR. GERDES: Two.
MR. CLARKE: Turning to the steering wheel, item no. 29, first of all, how many genetic markers were actually typed following PCR?
DR. GERDES: Six.
MR. CLARKE: And with regard to those samples, is it your opinion also that from a review of those results that neither Mr. Simpson nor Nicole Brown can be excluded?
DR. GERDES: Yes.
MR. CLARKE: Item no. 30, how many PCR genetic markers were used?
DR. GERDES: There are two.
MR. CLARKE: And 31?
DR. GERDES: Two.
MR. CLARKE: From the sidewall, item no. 34, how many?
DR. GERDES: One.
MR. CLARKE: Incidentally, 30--I neglected to ask this. 30 produced a result from two markers consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: 31 produced a result at two markers consistent with both Mr. Simpson and Ronald Goldman?
DR. GERDES: Again this is the item where the weak 1.3 is in contention as far as I'm concerned, but that is what they say here, yes.
MR. CLARKE: In other words, you have some criticism of the interpretation of that 1.3 allele, correct?
DR. GERDES: That's correct.
MR. CLARKE: Turning to item no. 34, that result at one marker was consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: What about item 293, the carpet on the driver's side, how many markers produced results that were consistent with Nicole Brown?
DR. GERDES: There are two.
MR. CLARKE: And then lastly, if we can deal with 303, 304 and 305 together, were there in fact two genetic markers that were typed following PCR with those evidence samples?
DR. GERDES: These are the evidence items, this last bunch, that were collected one month later.
MR. CLARKE: Objection, move to strike, nonresponsive.
THE COURT: Sustained. Answer is stricken. The jury is to disregard. Ask the question again.
MR. CLARKE: Dr. Gerdes, items 303, 304 and 305 were typed at how many genetic markers following PCR?
DR. GERDES: Two.
MR. CLARKE: Did they in fact produce results not excluding Mr. Simpson, Ronald Goldman or Nicole Brown?
DR. GERDES: That is what is listed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: And then lastly, your Honor, at this time I would like to utilize exhibit 262, a similar results board.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Doctor, again, People's exhibit 262, is that a board again similar to one that you have seen either in this form or a different form?
DR. GERDES: Yes.
MR. CLARKE: And with regard to the results starting with sock no. 13, that is the particular item that produced what was a total of a 16-probe match, but was fourteen different probes consistent with Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: You have conceded or you have offered the opinion that that 14-probe match is in fact a correct one; is that right?
DR. GERDES: Correct.
MR. CLARKE: With regard to that, is that a significant match at fourteen probes?
DR. GERDES: Yes.
MR. CLARKE: And in fact that is--in your opinion would that be an extremely significant match?
DR. GERDES: Again, there is controversy as to how to weigh these things, but in my opinion it is, yes, it would be.
MR. CLARKE: I'm sorry, yes, it would be?
DR. GERDES: Yes.
MR. CLARKE: That sample was typed also at PCR-based markers, wasn't it?
DR. GERDES: Yes.
MR. CLARKE: How many?
DR. GERDES: Two. Well, sorry, seven.
MR. CLARKE: So seven different genetic markers typed following PCR achieved the same results as far as consistency with Nicole Brown as the fourteen RFLP probe matches, correct?
DR. GERDES: Correct.
MR. CLARKE: In your opinion is that an example of an important cross-check between PCR and RFLP results?
DR. GERDES: It can be looked at as a cross-check, yes.
MR. CLARKE: It is a cross-check, isn't it?
DR. GERDES: Yes.
MR. CLARKE: If one of those PCR results produced a result that wasn't consistent with Nicole Brown, wouldn't that potentially raise a question about the reliability of PCR typing in forensics?
DR. GERDES: Yes.
MR. CLARKE: That didn't occur in this case, did it, on this sample?
DR. GERDES: Not on this sample.
MR. CLARKE: Turning to the remainder, and perhaps we can deal with the remaining samples, that is five more evidence items, correct?
DR. GERDES: Yes.
MR. CLARKE: And they were typed at two different genetic markers following PCR?
DR. GERDES: Yes.
MR. CLARKE: They all produced, at least with regard to--we better break it down a little bit.
DR. GERDES: Yes.
MR. CLARKE: 42A-2 produced results consistent with Mr. Simpson at two markers, correct?
DR. GERDES: Correct.
MR. CLARKE: 42A-3 was actually typed using both PCR and RFLP, correct?
DR. GERDES: Correct.
MR. CLARKE: And in fact the RFLP results revealed an 8-probe match to Mr. Simpson on 42A-3?
DR. GERDES: Yes.
MR. CLARKE: The PCR results were consistent with that RFLP result, weren't they?
DR. GERDES: Yes.
MR. CLARKE: And in fact the PCR results and the RFLP results were the same in being consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: Turning to 42A-4, was that typed at two different PCR genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Did that in fact produce a result consistent with Mr. Simpson?
DR. GERDES: Yes.
MR. CLARKE: And then lastly, turning to 42B-1 and 42B-2, how many genetic markers were typed with those two samples?
DR. GERDES: Two.
MR. CLARKE: Producing results consistent with Nicole Brown, correct?
DR. GERDES: With the exception of 42B-2 where this trace 1.2 needs to be interpreted.
MR. CLARKE: In your view is that possible trace 1.2 the result of real DNA or not?
DR. GERDES: That is the issue here. When you have traces in the system, you can't tell.
MR. CLARKE: Well, I'm asking you with regard to that sample, what is your opinion?
DR. GERDES: In that particular sample I don't know.
MR. CLARKE: All right. Thank you, your Honor.
THE COURT: Are we done with 262?
MR. CLARKE: Yes.
(Brief pause.)
MR. CLARKE: May I inquire what time the Court was going to take a break?
THE COURT: 10:30.
MR. CLARKE: Very well.
MR. CLARKE: Your Honor, I have one more board I would ask be marked as People's 561--
THE COURT: 571.
MR. CLARKE: 571.
(Peo's 571 for id = posterboard)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, for the record this board could be described as a board labeled "Concordance of Cellmark results with DOJ results."
THE COURT: Yes.
MR. CLARKE: Dr. Gerdes, with respect to, and let's start with the first item, 13A-1, is it correct, and we have discussed this to some extent a few moments ago, that the RFLP results obtained by each laboratory were consistent with one another, correct?
DR. GERDES: Correct.
MR. CLARKE: And that is with the fact that as to that sample there were a number of RFLP probes that matched Nicole Brown, correct?
DR. GERDES: Correct.
MR. CLARKE: Is that an example of, as you have used the term, significant match?
DR. GERDES: Yes.
MR. CLARKE: There were also PCR results that you described a few moments ago that were also consistent with Nicole Brown from each laboratory, correct?
DR. GERDES: On that item, yes.
MR. CLARKE: And in fact Cellmark's DQ-Alpha and polymarker results were consistent with the Department of Justice's DQ-Alpha and D1S80 results, correct?
DR. GERDES: Correct.
MR. CLARKE: Would this be an example where different laboratories achieve the same results from the same sample?
DR. GERDES: Yes.
MR. CLARKE: Turning to the steering wheel, that particular item was typed by Cellmark at six genetic markers and by DOJ at one of the same markers, DQ-Alpha, correct?
DR. GERDES: Correct.
MR. CLARKE: Those results were consistent with one another, weren't they?
DR. GERDES: Yes.
MR. CLARKE: Turning to item 47 on the Bundy walkway, Cellmark's six genetic marker results were consistent with DOJ's two genetic marker results, one of which was typed by both laboratories, one marker?
DR. GERDES: Yes.
MR. CLARKE: Turning to item no. 48 from the Bundy walkway, is it correct that the six genetic markers typed by Cellmark were consistent with the two genetic markers typed by the Department of Justice, again one of which was the same DQ-Alpha marker?
DR. GERDES: Yes.
MR. CLARKE: In these instances, 47, 48, in fact two laboratories tested material from the same sample using the same genetic marker, didn't they?
DR. GERDES: Yes.
MR. CLARKE: Doesn't that constitute a cross-check of the accuracy of typing results by a laboratory?
DR. GERDES: Typing that item, yes.
MR. CLARKE: Turning to item 50, again six genetic markers were typed at Cellmark and two genetic markers at DOJ, one of which was the same DQ-Alpha marker?
DR. GERDES: Yes.
MR. CLARKE: And in this series, item 52 produced RFLP results obtained by Cellmark, correct?
DR. GERDES: Yes.
MR. CLARKE: And six additional genetic markers following PCR at Cellmark?
DR. GERDES: Yes.
MR. CLARKE: And then again two PCR-based markers were typed at the Department of Justice obtaining results the same as at Cellmark, correct?
DR. GERDES: For that DNA, yes.
MR. CLARKE: And then lastly, turning to item no. 84, and that was a series of three different samples from fingernail clippings and scrapings, correct?
DR. GERDES: Correct.
MR. CLARKE: Actually had three different numbers because there were three different items?
DR. GERDES: Uh-huh.
MR. CLARKE: With regard to that sample, Cellmark typed them at six genetic markers?
DR. GERDES: Yes.
MR. CLARKE: Consistent with Nicole Simpson?
DR. GERDES: Yes.
MR. CLARKE: Nicole Brown Simpson?
DR. GERDES: Yes.
MR. CLARKE: And DOJ typed those samples at one genetic marker, correct?
DR. GERDES: Correct.
MR. CLARKE: As far as the results from those two different laboratories, they are in fact consistent with one another in terms of the fact that Nicole Brown could not be excluded as the donor of that DNA, correct?
DR. GERDES: That's correct.
MR. CLARKE: Isn't this inter-laboratory comparison, in fact, when one looks at the number of samples, a cross-check of the accuracy of results?
DR. GERDES: It is a cross-check of the items that were extracted by those labs, yes.
MR. CLARKE: All right. Your Honor, I was going to change into another area that was going to take--actually be my final area, but it will take longer than five minutes.
THE COURT: Well, let's use the five minutes we have.
MR. CLARKE: Very well.
(Brief pause.)
MR. CLARKE: Dr. Gerdes, this case doesn't involve testing of one or two evidence items, such as one or two bloodstains on a sidewalk, does it?
DR. GERDES: That's true.
MR. CLARKE: In fact, in this case there are more than forty different evidence samples that produced DNA typing results; isn't that correct?
DR. GERDES: That sounds about right.
MR. CLARKE: Isn't it correct that with respect to the negative controls in this case, unstained substrate controls, that is one negative control, correct?
DR. GERDES: Correct.
MR. CLARKE: A reagent blank, is that another negative control for PCR typing?
DR. GERDES: Correct.
MR. CLARKE: There is also a negative amplification control, as we discussed last Friday or Thursday?
DR. GERDES: Correct.
MR. CLARKE: Isn't it correct that all of those controls, the substrate controls, the reagent blank, the negative amplification controls in this case show no evidence of contamination?
DR. GERDES: There is one item from Cellmark that is a reagent blank that shows some evidence of contamination. With that one exception all the rest appear clean.
MR. CLARKE: How many different runs did these approximately forty or more than forty evidence items include in this case? I'm referring to PCR results?
DR. GERDES: Well, I haven't counted them.
MR. CLARKE: Well, would samples be run more than once?
DR. GERDES: Yes.
MR. CLARKE: How many times--
DR. GERDES: Some samples; other samples not.
MR. CLARKE: So samples would be run one time?
DR. GERDES: Yes.
MR. CLARKE: What is the most another sample--I'm referring to evidence material. What is the most times another sample would be run?
MR. SCHECK: Your Honor, I think this is vague and repetitive.
THE COURT: Sustained. It is vague.
MR. CLARKE: In terms of the use of the term "Run," how do you use that term?
DR. GERDES: Well, in terms of the table that I formulated, it basically just refers to a specific date on which a series of strips were tested.
MR. CLARKE: Okay. Were the same types of steps undertaken with regard to the evidence in this case?
DR. GERDES: Yes.
MR. CLARKE: So can we use the word "Run" to describe this different date that a sample might be typed in this case?
DR. GERDES: That is--yes.
MR. CLARKE: That would include amplification through actually determining which dots or which types are present?
DR. GERDES: Yes.
MR. CLARKE: With regard to these more than or approximately forty evidence items, how many different runs would those include in--you described that one sample might be run only once. How many times might another sample be run?
DR. GERDES: I would have to look at a specific item and count these things. I haven't done that.
MR. CLARKE: Okay. Is it correct that a sample might be run more than once?
DR. GERDES: Some samples were, yes.
MR. CLARKE: So is it the case that in this case there are more than forty different runs?
DR. GERDES: Again I would have to count them up. I haven't done that.
MR. CLARKE: Many of these samples were run by three different laboratories, correct?
MR. SCHECK: Your Honor, this is asked and answered.
THE COURT: We have already gone through that.
MR. CLARKE: As far as the number of runs, wouldn't it be much more than forty?
MR. SCHECK: Same objection.
THE COURT: Overruled.
DR. GERDES: If you count the runs in all the different laboratories, again, I--it is perhaps that many; perhaps not. I haven't counted them up, but there were a number of them.
MR. CLARKE: Could it be as many as eighty to a hundred different runs?
DR. GERDES: I doubt that.
MR. CLARKE: If you had to place an estimate on it, what estimate would you place?
DR. GERDES: Let me take a quick look here.
(Brief pause.)
THE COURT: All right. Mr. Clarke, Dr. Gerdes, why don't we take our break at this point. You can take a look and see what your records say. I don't want to rush you while you are on the stand here. Ladies and gentlemen, we are going to take our mid-morning break. Please remember all my admonitions to you. We will stand in recess for fifteen minutes. All right.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All parties are again present. Deputy Magnera, let's have the jurors, please. Dr. Gerdes, why don't you come on around and take your seat.
(Brief pause.)
THE COURT: I take it, Mr. Clarke, you just have a few more questions?
MR. CLARKE: I think about fifteen minutes' worth.
MR. SCHECK: Your Honor, after that, when I again redirect, I have some charts, so we may need a short break to show those.
THE COURT: Okay.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Dr. John Gerdes is on the witness stand undergoing cross-examination by Mr. Clarke. And Mr. Clarke, you may conclude.
MR. CLARKE: Thank you, your Honor.
THE COURT: You are welcome.
MR. CLARKE: May I have a moment with counsel?
(Discussion held off the record between Defense counsel.)
MR. SCHECK: May we approach, your Honor?
THE COURT: What is this?
MR. SCHECK: This is about the transcripts.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. What have you got, Mr. Clarke?
MR. CLARKE: There was--the Court may recall that the Court had left the subject to a motion to strike the witness' testimony about previously testifying about RFLP concerning PCR--confirming PCR results. This is the page from this line. They don't seem to be numbered, but what would be the fifth line down through--through this line here, (Indicating).
MR. SCHECK: First of all, we have something different on the same page--this is McIntosh, right?
MR. CLARKE: Correct.
MR. SCHECK: Our page 201 (Sic) For McIntosh is a little different. And there is two points here. First he testifies regarding the technology in the broad sense. "Do you recall ever testifying about the best validation technology is to use traditional RFLP technology to cross-check?" And they talk about cross-checking, but the specific kind of questions that Mr. Clarke is asking about the samples is that it goes on--
MR. THOMPSON: End of the direct.
MR. SCHECK: End of the direct examination at page 1970. What becomes clear is that when he is asked about separate and independent testing of the samples, even is asked a question on page 1970 of the transcript: "Finally you have taken the position that there is an indication or a suggestion that particular testing in this case that contamination was involved? "Yes. "The fact that the lab went to a secondary reference, that is a separate sample, and did testing, is that really the same as a repeat or independent test? "Answer: No. An independent test would have been that they sent the specimens to a different laboratory and ideal specimens that hadn't been handled. These had already been handled." So Dr. Gerdes' position in the McIntosh case is consistent with this one and that is that independent testing in a split of samples means that the samples haven't been handled by the laboratory, so to the extent that he was impeaching him with prior testimony from McIntosh in that regard in terms of validation, that was unfair. And in terms of just asking him in a general sense, as indicated on page 2018: "Doesn't RFLP in the general sense serve as a check against PCR?" In the general sense. I think he has indicated his position on that is yes, but in terms of--
THE COURT: But the only--
MR. SCHECK: --unfair impeachment on the other point concerning independent testing, and in other words, the samples handled in the lab--
THE COURT: I thought the only issue we have at this point is whether or not he has testified to this position within the last year. That is the issue.
MR. CLARKE: Exactly.
MR. SCHECK: I think what is clear here is that his position has been consistent and I think that that impeachment suggesting that he testified previously in the sense of independent laboratories confirming each other, in a situation whether the samples had already been handled by laboratory no. 1, that a second laboratory test would independently confirm the other one. That is not what he meant by independent confirmation. And in that respect page 1970 of the Moffitt (Sic) case indicates that Dr. Gerdes was unfairly impeached on that point, and Mr. Clarke did not have a particular page that he was confirming and that was my objection at the time and I think that the actual transcript bears it out.
MR. CLARKE: We are talking apples and oranges at the moment. My only question relates exactly to what is stated here about RFLP using to confirm PCR results. Fortunately we got the original transcript, not a rough draft unedited.
MR. THOMPSON: This is the one you provided is.
MR. CLARKE: That may be. I mean, I had to go back. I can't find this section of transcript. From the transcript it states now: "Regarding technological confirmation could RFLP be used then to confirm PCR results? "Answer: Yes."
THE COURT: He has already said that.
MR. CLARKE: Exactly. I was just concerned because you had made it subject to a motion to strike until I got the transcript.
MR. SCHECK: My point is that the motion to strike was--was involved in the issue, which is a critical issue in this case, and that is, you spent an hour talking about concordance and confirmation and everything when the fact of the matter is the man's position is completely consistent. He says a cross-contamination at LAPD on samples that have been handled there. It is not an independent cross-check unless the samples are split at the beginning. And you tried to impeach him on that point and that is--suggested that when he said independent testing in the Moffitt case--McIntosh case, I'm sorry, that it involved a situation where the samples had--that he did not make the distinction about handling--that if the laboratory no. 1 handles the sample and then you give to it laboratory no. 2, that that is not an independent cross-check and that was an incorrect and unfair impeachment--
THE COURT: No.
MR. SCHECK: --because the transcript doesn't bear you out.
THE COURT: The only thing that is at issue at there is whether or not he had maintained that position three years ago or within the last year. That was the issue that I took subject to a motion to strike. So if this is in July of `84--
MR. CLARKE: `94.
THE COURT: --there is a sufficient foundation on the record. The objection is overruled.
MR. SCHECK: Excuse me, your Honor.
THE COURT: The objection is overruled.
(The following proceedings were held in open court:)
THE COURT: Proceed.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Gerdes, with regard to the LAPD's DNA testing in this case, you have described previously that Mr. Yamauchi conducted PCR typing in this case on June 14th and June 15th, correct?
DR. GERDES: Correct.
MR. CLARKE: And in that testing he used the controls that you previously described as a result of my asking questions about reagent blanks and so forth, correct?
DR. GERDES: Correct.
MR. CLARKE: Now, your Honor, I have another document--one more document I would ask to be marked as People's I believe 572 which I have previously shown to counsel.
(Peo's 572 for id = slide)
MR. CLARKE: And with the Court's permission I will display it on the elmo.
THE COURT: Proceed.
MR. CLARKE: Dr. Gerdes, can you see that?
DR. GERDES: I would like to step down if I can.
MR. CLARKE: That's fine.
DR. GERDES: (Witness complies.)
MR. CLARKE: First of all, this particular document or slide, as it is now on the screen, have you had a chance to see that or take a look at it last week?
DR. GERDES: I saw it briefly, yes.
MR. CLARKE: And did you have an opportunity to calculate the total number of evidence samples, known standards and controls, that Mr. Yamauchi used in his testing in this case?
DR. GERDES: Yes.
MR. CLARKE: Now, with regard to--and there were two different dates for this testing; is that right?
DR. GERDES: That's correct.
MR. CLARKE: And on both June 14th and June 15th Mr. Yamauchi typed evidence samples?
DR. GERDES: Yes.
MR. CLARKE: He also typed known standards from the three people in this case?
DR. GERDES: Yes.
MR. CLARKE: And he also utilized a series of controls; is that right?
DR. GERDES: Yes.
MR. CLARKE: As far as the known standards, do you call those a control or not?
DR. GERDES: They are in the sense that they are defined as coming from a single individual, and if you can find evidence of human DNA, additional human DNA, that is evidence of contamination.
MR. CLARKE: So in a sense the known standards can act as a control, correct?
DR. GERDES: Correct.
MR. CLARKE: So that if a person was A, let's say a DQ-Alpha 1.1, 1.2, and you saw a 3 and a 4 showing up in addition to the 1.1 and 1.2, that is again another opportunity for contamination to signal itself at least in that sample?
DR. GERDES: That's correct.
MR. CLARKE: Now, as far as the total number of samples typed by Mr. Yamauchi, is it correct that including both June 14th and June 15th he typed a total of 42 different samples?
DR. GERDES: That's correct.
MR. CLARKE: That consisted of eighteen evidence samples, whether it is a stain from the sidewalk at Bundy or a sample from the Bronco, correct?
DR. GERDES: Correct.
MR. CLARKE: Or other samples that he typed as well?
DR. GERDES: Correct.
MR. CLARKE: He also typed the three known standards from the three individuals in this case; Mr. Simpson, Miss Brown and Mr. Goldman?
DR. GERDES: That's correct.
MR. CLARKE: The total number of evidence and known standards was 21; is that right?
DR. GERDES: Yes.
MR. CLARKE: And is it also correct that the total number of controls used in this case by Mr. Yamauchi on June 14th and 15th was 21?
DR. GERDES: Yes.
MR. CLARKE: Is it then correct that of the 42 samples typed by Mr. Yamauchi in this case on June 14th and June 15th, half of them, that is fifty percent, were controls?
DR. GERDES: On this specific case, yes.
MR. CLARKE: In your view is that an adequate number of controls for typing?
DR. GERDES: It should be.
MR. CLARKE: And in fact it is, isn't it?
DR. GERDES: Yes.
MR. CLARKE: All right. Thank you. Now, Dr. Gerdes, you have, last Wednesday and Thursday, repeatedly used terms like my interpretation, possibility and risk. Do you recall using those words?
DR. GERDES: Yes.
MR. CLARKE: And that was in reference to your testimony about the dangers of contamination in this case, correct?
DR. GERDES: Yes.
MR. CLARKE: You can't quantify that risk, can you?
DR. GERDES: Umm--
MR. CLARKE: That is, put a number on the risk?
DR. GERDES: Well, if there were adequate blind proficiency studies at least you could have some idea about error rate, which would give you some idea of risk, and the other thing that you can do is, as I have done here, you can look at all of the testing around the time frame of the testing done on an instance case and see how many times errors were made and how many times there was evidence of contamination so they are--those are objective ways of measuring the amount of risk. But as to coming up with a number that is a specific number that is going to say eighty percent of the time you will make a mistake or something like that, no, you can't quantify it.
MR. CLARKE: And in fact you testified about what you believe to be errors in the laboratory and we went through each of the five, correct?
DR. GERDES: Yes, we did.
MR. CLARKE: Now, as far as your laboratory's work in diagnosis of diseases, you produce results that ultimately to go a doctor, correct?
DR. GERDES: Correct.
MR. CLARKE: And a doctor is required to notify that patient of risks no matter how unlikely they are to occur, correct?
DR. GERDES: Yes.
MR. CLARKE: Are you aware of the non-bloodstain evidence in this case?
DR. GERDES: You mean fibers, hair, et cetera?
MR. CLARKE: All the other evidence in this case?
MR. SCHECK: Objection.
DR. GERDES: Peripherally?
MR. SCHECK: Outside the scope, irrelevant.
THE COURT: Overruled.
MR. CLARKE: When you say "Peripherally," doctor, what do you mean?
DR. GERDES: Well, I certainly did not review specific documents as to those things outside of my field, but I am aware of them because of media coverage and just like anybody else would be.
MR. CLARKE: So watching TV, that would be one source?
DR. GERDES: Yes.
MR. CLARKE: Reading the newspaper?
DR. GERDES: Yes.
MR. CLARKE: Reading magazines, if you do?
DR. GERDES: Yes.
MR. CLARKE: You have also testified that it is ultimately for the jury to decide the reliability of the scientific evidence in this case. Do you recall saying that?
DR. GERDES: Yes.
MR. CLARKE: Is it also correct that it is ultimately for the jury to decide whether in fact any contamination occurred in this case?
DR. GERDES: That is up to their discretion, yes.
MR. CLARKE: All you have told this jury is that there might be contamination in this case, correct?
DR. GERDES: I believe I have documented as precisely as I can the level of contamination that exists, and from that point on I have suggested how that may have or tried to explain how that would have an impact on the case. From that point on it is up to the jury to deal with that--that piece of evidence and in the context of the whole case.
MR. CLARKE: And you have talked about, Dr. Gerdes, possibilities, not what actually happened, correct?
MR. SCHECK: Objection, calls for conclusions.
THE COURT: Sustained. It is argumentative.
MR. CLARKE: You have spoken, you have described what you had believed to be possibilities in this case; is that right?
MR. SCHECK: Argumentative.
THE COURT: Overruled.
DR. GERDES: I have, as objectively as possible, evaluated the level of contamination at LAPD, the errors that I felt were a result of that, the evidence of cross-contamination in the reference samples and the implications of that in terms of the evidence in this case. That is what I have attempted to explain.
MR. CLARKE: You have spoken about what could happen; not what did happen, correct?
DR. GERDES: I don't have a hundred percent assurance that this did happen. I have no scientific confidence that it couldn't have happened.
MR. CLARKE: Dr. Gerdes, the results in this case from three different laboratories are consistent with the Defendant's blood being left at the crime scene, aren't they?
DR. GERDES: The results from the three labs as far as reported results, yes.
MR. CLARKE: They are consistent with mixtures of DNA from the Defendant, Ronald Goldman and Nicole Brown being found in the Ford Bronco; isn't that correct?
DR. GERDES: The results are consistent with that as they are detected.
MR. CLARKE: Incidentally, you haven't suggested to this jury that the Defendant's reference sample cross-contaminated the evidence taken from the Bronco, have you?
DR. GERDES: The fact that I have some indications of cross-contamination in those reference samples obviously increases again the risk that it could cross-contaminate something else.
MR. CLARKE: Dr. Gerdes, what I'm asking you is you haven't suggested to this jury that the Defendant's reference sample cross-contaminated any evidence in the Bronco, have you?
DR. GERDES: His particular sample?
MR. CLARKE: Correct.
DR. GERDES: It is hard to tell. I mean, I have no evidence--specific evidence, hard evidence of that.
MR. CLARKE: You don't have any evidence of it whatsoever, do you?
DR. GERDES: I have some--some evidence that the reference samples themselves may have cross-contaminated. At that point everything becomes suspicious.
MR. CLARKE: Dr. Gerdes, what I'm asking you is you don't have any evidence whatsoever that the Defendant's reference sample cross-contaminated any of the stains from the Bronco?
DR. GERDES: I don't have any direct evidence of that, no.
MR. CLARKE: Where in the history of these samples did the Defendant's reference sample come into even potential contact with the Bronco evidence samples?
DR. GERDES: There are other items that were collected at that residence who arguably may have come from the Defendant and it may not have been the reference sample, but it may have been some of those items.
MR. CLARKE: Dr. Gerdes, what I'm asking you is with regard to the Defendant's reference sample, when did it come into any potential contact with the Bronco evidence stains?
DR. GERDES: It didn't.
MR. CLARKE: The results in this case, Dr. Gerdes, are consistent with the Defendant's blood leading up to and inside his home on Rockingham; isn't that correct?
DR. GERDES: There is--the type results appear that way, yes.
MR. CLARKE: Those results are consistent with Nicole Brown and Ronald Goldman's blood being found on the glove at Rockingham, correct?
DR. GERDES: Again, there are multiple explanations. That is one explanation.
MR. CLARKE: Dr. Gerdes, didn't you concede last week that the RFLP matches to the two victims on the glove were correct?
DR. GERDES: Yes.
MR. CLARKE: Dr. Gerdes, isn't it true that the DNA type results from the laboratories in this case are consistent with Nicole Brown's and Mr. Simpson's blood being on the sock found at the residence?
MR. SCHECK: Your Honor, this is asked and answered five times.
THE COURT: Overruled.
DR. GERDES: Yes, that is true.
MR. CLARKE: And in fact you have conceded that much during your testimony, correct?
DR. GERDES: I have.
MR. CLARKE: Now, five probes is significant, correct?
MR. SCHECK: Objection, asked and answered.
THE COURT: We have gone through this part.
MR. CLARKE: When you conduct your paternity testing you look at individual probes, correct?
DR. GERDES: Correct.
MR. CLARKE: You look at more than one probe because a father might be excluded as being the father of a particular child, correct?
MR. SCHECK: Objection, asked and answered.
THE COURT: Overruled.
DR. GERDES: Yes.
MR. CLARKE: And in fact you look at routinely five different genetic markers; is that right?
DR. GERDES: That's correct, for doing DNA only.
MR. CLARKE: Just counting DNA, right?
DR. GERDES: Yes.
MR. CLARKE: And you are looking at each of those markers, this is a potential father or this person who might be the father excluded as the father of that child, correct?
DR. GERDES: Correct.
MR. CLARKE: Once you look at those probes, you then estimate how rare is that match at one probe?
MR. SCHECK: Your Honor, objection.
THE COURT: Sustained. We have gone through this already.
MR. CLARKE: Dr. Gerdes, one of the concerns you have experienced in forensics is the fact that a sample may be small and you may not be able to retest it, correct?
DR. GERDES: Correct.
MR. CLARKE: Now, as far as errors--and you described how in medical diagnostics if a patient dies because of a misdiagnosis you know you have made a mistake; is that right?
DR. GERDES: That is a pretty drastic example, but yes.
MR. CLARKE: And you described the fact last week that in your view there is no independent way of assessing whether or not mistakes are made in the forensic setting? Do you recall that?
DR. GERDES: I believe that is true.
MR. CLARKE: Are you aware of remaining evidence in this case that can be retested?
DR. GERDES: I'm not aware of any evidence that hasn't been handled by the LAPD that can be retested.
MR. CLARKE: Objection, move to strike, nonresponsive.
THE COURT: Overruled.
MR. CLARKE: Dr. Gerdes, are you aware of remaining evidence in this case that can be retested?
DR. GERDES: There are items that can be retested.
MR. CLARKE: There are a number of evidence items, aren't there?
DR. GERDES: Yes.
MR. CLARKE: And in fact there are remaining swatches from many of the very items that we've described that you have described during your testimony in this case?
DR. GERDES: There are.
MR. CLARKE: Whether it is the Bundy blood drops?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA removed from the Bronco?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA from the Defendant's home?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA on the glove?
DR. GERDES: Correct.
MR. CLARKE: Whether it is DNA on the socks?
DR. GERDES: Correct.
MR. CLARKE: Have you tested any of that?
DR. GERDES: We don't do this type of testing.
MR. CLARKE: Well, as far as the difference between the testing, you do in your laboratory and forensic labs do, you have testified the only difference is the nature of the specimen, a bloodstain versus a blood vial, correct?
DR. GERDES: No. I believe I testified that it is comparing apples and oranges, that it is a completely different set-up and statistics involved in paternity from forensics, they really are not the same other than the fact that the methodology itself as far as how you run the gels is the same.
MR. CLARKE: Dr. Gerdes, if you exclude somebody statistics don't mean anything, do they?
DR. GERDES: That is true.
MR. CLARKE: In other words, if you test a sample and a genetic marker, someone is excluded as having left a sample at a crime scene, let's say, numbers don't mean a thing?
DR. GERDES: That's right.
MR. CLARKE: As far as in your laboratory, you have tested the DQ-Alpha marker before, correct?
DR. GERDES: Not in a forensic sense.
MR. CLARKE: Have you tested the DQ-Alpha marker before, doctor?
DR. GERDES: Yes.
MR. CLARKE: And in that testing did you feel competent to perform that testing of the DQ-Alpha marker?
DR. GERDES: Yes.
MR. CLARKE: As far as removing DNA from a bloodstain, do you feel that you could do that?
DR. GERDES: Yes, I could do that, but the--the difficulty is, as we have discussed over and over, whether that sample--you need to have confidence. The difference in the way I do things and the way forensics does that is I have confidence that a specimen I'm working with came from a single individual, and the complications in terms of statistics, interpretation, potential error, that is introduced by the fact that these are mixtures or potentially mixtures. That is the issue.
MR. CLARKE: Dr. Gerdes, if one of those samples from the Bundy blood trail, 47 through 52, if one of those was typed and it revealed a genetic marker, and I am referring to the remaining evidence, that excluded Mr. Simpson, wouldn't that be important?
DR. GERDES: Yes.
MR. CLARKE: That would be extremely important, wouldn't it?
DR. GERDES: Yes.
MR. CLARKE: Have you suggested to the Defense in this case that retesting should be done?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. SCHECK: Objection, move to strike and ask for an instruction--
THE COURT: Overruled.
MR. SCHECK: --on burdens of proof.
MR. CLARKE: Wouldn't reanalysis of these samples support, if they produced exclusionary results, support your opinions in this case?
MR. SCHECK: Objection.
THE COURT: Overruled.
DR. GERDES: Not at this point.
MR. CLARKE: Is it your view then that if further testing in this case revealed Mr. Simpson was excluded from item 52, that wouldn't support any of the opinions you've offered in this case about forensic DNA typing?
DR. GERDES: In my opinion, with the risk of contamination, there would be no possible PCR interpretation possible at this point, because the samples have been handled in the way they have been.
MR. CLARKE: Are you aware of other laboratories--
THE COURT: Keep going.
MR. CLARKE: Are you aware of other laboratories, doctor, that perform forensic retesting?
DR. GERDES: Yes.
MR. CLARKE: Does Dr. Blake--is he able to perform DQ-Alpha typing on forensic specimens?
DR. GERDES: Yes.
MR. CLARKE: Is Mr. Taylor able to perform retesting on forensic specimens?
DR. GERDES: Yes.
MR. CLARKE: Is Dr. Lee able to perform forensic testing on specimens using DNA typing?
DR. GERDES: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Could I have just a moment, your Honor? I'm sorry.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Thank you. Nothing further, your Honor.
MR. SCHECK: Your Honor, we have--
THE COURT: All right. Ladies and gentlemen, there are a couple of things I need to take up out of your presence, so I'm going to ask you to step back into the jury room. We will call you out in probably ten or fifteen minutes. All right. Dr. Gerdes, you may step down.
(At 11:11 A.M. the jury was excused and the following proceedings were held in open court:)
THE COURT: All right. The record should reflect all the jurors have withdrawn from the courtroom. Mr. Scheck.
MR. SCHECK: First, Mr. Cochran has an application.
MR. COCHRAN: I would like to just address the Court, your Honor, as to one issue. Your Honor, repeatedly we have seen questioning by the Prosecutors with regard to the Defense could do this, the Defense could do that, and I think that is grossly unfair to Mr. Simpson, because as the Court is aware, the Defendant doesn't have to prove anything. Just harken back to the voir dire. You have told this jury Mr. Simpson could go to sleep if he wanted to.
Obviously he hasn't done that in this case. But I think it is terribly unfair, under the provisions of the state constitution and the U.S. constitution to try to shift the burden to Mr. Simpson. He does not have to prove anything. And I think that whole line of questioning is unfair. I'm making this objection primarily because I think it applies not only to this witness, but to others, and what I'm asking the Court to do is to prohibit the Prosecution from doing this, and also at the appropriate time you will be instructing this jury, but to instruct them the Defense does not have to do any kind of testing in this particular case. And I think it is unfair, unfair inference. You mentioned Mr. Blake a hundred times and now we hear Blake and Taylor and what Gerdes does, could have done, and that is really unfair, your Honor, and I wanted to at least address the Court on this and ask you to give a curative instruction in that regard.
THE COURT: All right. That will be given and has been given as one of the Court's formal instructions. The burden is on the Prosecution. However, there is also a long line of cases that during the course of argument the Prosecution can argue the failure to call logical witnesses.
MR. COCHRAN: Doesn't it fly in the face--not to belabor it--doesn't it fly in the face where you start off instructing the jury we don't have to prove anything and then they come along and they do exactly that and then you instruct them that we don't have to prove anything.
THE COURT: I have instructed them in the most graphic way that I can that Mr. Simpson can sit here and sleep through the whole trial if he cares to. That is something you even remember.
MR. COCHRAN: You did that and I just reminded you.
THE COURT: I'm sure I don't need to be reminded of that and that is why I use it.
MR. COCHRAN: I appreciate that. And in addition to that, it seems to be an incongruity for them to continue to throw up this thing as though we have to prove anything because we don't have to, and I think that is grossly unfair and that is the point.
THE COURT: I will instruct the jury at the appropriate time that the burden is completely and 100 percent on the Prosecution, rest assured of that. All right. Mr. Scheck.
MR. SCHECK: Your Honor, we have some slides that I will hand up to the Court. I have--give to Prosecution--maybe--what is the best way you want to do this? Do you want to just take a look at them or put them up?
THE COURT: Just hand them to me.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: Do you have any extra copies?
MR. SCHECK: Yes, yes, I have them right here.
(Brief pause.)
MR. SCHECK: Perhaps if I just go through them it will be easier.
MR. CLARKE: I haven't seen them, your Honor.
(Brief pause.)
MR. SCHECK: Your Honor, these--these slides would be used in conjunction with--they address the four different examples of errors at LAPD, and if we could turn to--
THE COURT: These are the same four, or depending on how you call it, five mistakes that Mr. Clarke went through, correct?
MR. SCHECK: Right.
THE COURT: There is an illustration of the different calls, correct?
MR. SCHECK: Yes. This would be a breakout of the genotypes listed on Prosecution's exhibit no. 561, which are the strips, and what it indicates here is the correct type in the proficiency testing sample being 1.2, 1.3 for the sperm fraction and it is labeled with the sign for males, and the LAPD type is reported which was a 1.3, 4. And it indicates the female fraction and indicates that this was, as the testimony indicates, done first by Collin Yamauchi on 9/9/93 and then again Erin Riley did the same sample, got the same result on 9/21, `93. Next slide, please. This indicates--
THE COURT: All right. Counsel, I have all of these in front of me.
MR. SCHECK: Yes. The next thing indicates that--
THE COURT: All right. Rather than sit here and tell me what they are, what are your objections, Mr. Clarke?
MR. CLARKE: I think at least this slide is argumentative and misleading. As far as this witness' own testimony about--and the witness conceded that, yes, these people cannot be excluded, even persons with a different type, because of the potential for the spillover of female DNA and the male DNA. So just judging by in particular the portion of the slide that is in black on the right, this witness has conceded that, no, you wouldn't wrongfully include anyone, you wouldn't wrongfully exclude anyone because the analyst, a trained analyst, must necessarily consider that may be the victim's that is coming out in the sperm fraction.
THE COURT: All right.
MR. CLARKE: If the witness hadn't conceded that I think we would be in a different situation.
MR. SCHECK: That is not his testimony.
THE COURT: Wait, wait, wait. A-1, B-2 and C-3, these are all case work examples, correct?
MR. SCHECK: The--
THE COURT: Are these case work or validation studies?
MR. SCHECK: This--what this slide refers to--
THE COURT: I know the four or five mistakes. I know what we are talking about here.
MR. SCHECK: Right. This one is a mock validation study.
THE COURT: Okay.
MR. SCHECK: And the point that Dr. Gerdes made on direct, and we feel has to be cleared up, because it is very hard when you deal with these, you have to break out the types and show exactly what the points are, that the typing result of LAPD of the 1.2, 4 could be, if that--given the fact that the female fraction is a 1.2, 4, the number of different possible suspects in terms of genotypes that could be included by that result in a case would be called a 4, 4 a 1.2, 1.2 and that is why he considers this a mistake, and a serious mistake, and the kind of thing that he has seen in other forensic laboratories, and that is our point.
THE COURT: All right. Mr. Clarke, any other comment on all of these matters?
MR. CLARKE: Referring to this first slide?
THE COURT: Any of them.
MR. CLARKE: Actually, I haven't had a chance to look at the others. We have been dealing with this one.
THE COURT: Do you have them all printed in front of you?
MR. CLARKE: Yes.
THE COURT: They are all similar. There are two different batches here.
MR. CLARKE: If I could look at them.
THE COURT: All right. Mr. Scheck, my one concern is that 1-A, B-2 and C-3 do not--are not self-labeled and being as being validation studies.
MR. SCHECK: Well, what I will do is when we put this up, I will label them.
THE COURT: As the others do clearly say this is proficiency testing.
MR. SCHECK: I see. So we will--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: We will have Mr. Harris put it on the side and I will refer to the exhibits when I show the slides so it is clear what we are referring to.
MR. CLARKE: I also think as to the wrong suspects included, that is very argumentative and misleading.
THE COURT: It is inaccurate in terms of a mock--
MR. SCHECK: I will put down "Mock." It is not a real case. It didn't really happen. The point is it could happen if it were a real case and that is his testimony.
MR. CLARKE: Even in a mock case it is extremely misleading.
THE COURT: Here is the problem. We all agree they have gone through all four or five of these, on both sides. This is a graphic breakout of what is there. I think it is easier to understand in this form as long as it is correctly labeled what it is. This is my only problem.
MR. SCHECK: So we should put down--we will put down "Mock validation study" underneath the 9/9/93, rerun 9/21/93.
THE COURT: 1-A, B-2 and C-3.
MR. SCHECK: Yes.
THE COURT: All right. Anything else?
MR. CLARKE: Could I just have a moment to look at the remainder?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Mr. Clarke, any other comment?
MR. CLARKE: Your Honor, I just think they are extremely argumentative in the context of this witness' testimony. The way they are worded and the way I presented I think will do nothing but mislead the jury.
THE COURT: All right. The objection is noted. All right. Let's have the jury, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Dr. Gerdes. The record should reflect all the jurors have rejoined us. Dr. John Gerdes is on the witness stand again undergoing redirect examination by Mr. Scheck.
MR. SCHECK: Good afternoon (Sic), ladies and gentlemen of the jury.
THE JURY: Good afternoon.
REDIRECT EXAMINATION BY MR. SCHECK
MR. SCHECK: Dr. Gerdes, Mr. Clarke asked you quite a few questions about retyping by other laboratories?
DR. GERDES: Yes.
MR. SCHECK: Now, in terms of an initial cross-contamination of samples at the LAPD, does it matter how many other laboratories typed the samples if they were cross-contaminated initially at LAPD?
DR. GERDES: No. Once you've accidentally or some other way transferred that DNA from one sample to another, it doesn't matter how many gene systems, how many different labs, it is always going to transfer, it is always going to type as the DNA that was transferred.
MR. SCHECK: Now, Mr. Clarke showed you what has been marked 564-F which is a series of slides, if I could put this up on the elmo, please, with respect to typing performed at the LAPD laboratory with respect to three of the five Bundy blood drop samples. Will you put that up there, please. In terms of--
THE COURT: It is getting washed out here.
MR. SCHECK: Yeah.
THE COURT: There we go.
MR. SCHECK: Now, listed on this chart are only items 48, 50 and 52; is that correct?
DR. GERDES: Correct.
MR. SCHECK: In terms of what was handled by Collin Yamauchi between nine o'clock and 11:00 on the morning of June 14th, were samples 47, 48, 49, 50, 52 and the Rockingham glove all sampled at that time with Mr. Simpson's reference sample?
DR. GERDES: That's correct.
MR. SCHECK: All right. And where did that occur?
DR. GERDES: That occurred in the evidence processing room.
MR. SCHECK: All right. And in terms of the drying of samples, and packaging of samples, were items 47, 48, 49, 50 and 52, along with Rockingham items, including item no. 12, the drops taken from the foyer of Mr. Simpson's home, were they all taken out of plastic bags, wet swatches and put into test tubes by Mr. Fung and Miss Mazzola without changing gloves and without changing papers on June 13th as is indicated under the section "Drying" on 6/13?
MR. CLARKE: Objection, misstates the evidence.
THE COURT: Sustained.
MR. SCHECK: Well, based on your review of the testimony did Miss Mazzola and Mr. Fung take out of plastic bags swatches that they described were wet, put them into test tubes for drying on the evening of June 13th which included 47, 48, 49, 50 and 52, and the different samples collected at Rockingham?
DR. GERDES: They did.
MR. SCHECK: All right. And that would comport with the section of the chart marked "Drying," correct?
DR. GERDES: That's correct.
MR. SCHECK: And on June 14th in the morning did Mr. Fung and Miss Mazzola scrape out of test tubes using a pipette without changing gloves and without changing paper, put into bindles the swatches that they had previously dried on June 13th?
DR. GERDES: They did.
MR. SCHECK: Now, is it--what is your opinion about the way that Mr. Fung and Miss Mazzola handled those samples on June 13th and on June 14th in terms of the danger of cross-contamination?
DR. GERDES: I think there is significant risk of cross-contamination because they didn't change gloves because they create aerosols when they try and scrape these little swatches out of the tube, and because they handled the reference sample at the same time as all of these other evidence items and because certain items--
MR. CLARKE: Excuse me. Sorry. Objection, misstates the testimony.
THE COURT: Overruled.
DR. GERDES: And because certain items--a number of items, in fact, were mixed between crime scenes in terms of being handled at the same time.
MR. SCHECK: Incidentally, item no. 12, the drops from the floor in the foyer from Mr. Simpson's residence, was that among the last samples collected on June 13th?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: Do you know if those were among the last samples collected by Mr. Fung and Miss Mazzola on June 13th?
MR. CLARKE: Same objection.
THE COURT: Sustained. Sustained.
MR. SCHECK: All right.
THE COURT: Foundation, counsel.
MR. SCHECK: Are you familiar with the testimony and the records concerning the collection of the items at Rockingham?
DR. GERDES: Yes.
MR. SCHECK: All right. Was item no. 12 one of the last items collected on June 13th?
DR. GERDES: Yes.
MR. SCHECK: And in terms of DNA concentration, was the concentration of item no. 12, in terms of human DNA, higher significantly than the Bundy blood drops?
DR. GERDES: It was.
MR. SCHECK: All right. And when that sample is handled in conjunction with the Bundy blood drops, in the fashion that you have just reviewed on June 13th and on June 14th, does that create a danger of cross-contamination with that sample?
DR. GERDES: Yes, because you are handling a sample that has a large amount of DNA with samples that are degraded and small amounts of DNA.
MR. SCHECK: And the samples that had degraded and small amounts of DNA were which sample?
DR. GERDES: The Bundy blood drops.
MR. SCHECK: Now, also--well, could you--could we circle on this--the evidence processing room on this flow chart as indicated 6/13 and 6/14. Could we draw a circle around that, Mr. Harris, and may I suggest pink. No, no, no, that is the evidence--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: No, no. All right. Thank you.
MR. SCHECK: Dr. Gerdes, is it your testimony that it is in these procedures on June 13th and June 14th that unacceptable risks of cross-contamination occurred?
DR. GERDES: Yes. The risk at the very first step that is circled.
MR. SCHECK: And if those--cross-contamination to those samples, Bundy blood drops and the Rockingham glove, occurred at that time, would results be replicated by Cellmark, DOJ, your own laboratory, if you typed these kind of samples, Dr. Blake, Dr. Henry Lee or anyone else you found, assuming that they performed the tests correctly?
DR. GERDES: They would.
MR. SCHECK: Thank you. Can we print that out mark that as Defense next in order.
THE COURT: 1311.
(Deft's 1311 for id = photograph)
MR. SCHECK: With the Court's permission could we turn the lights up and I will go over to a chart.
(Brief pause.)
THE COURT: All right. This is 259, I believe the Bundy results board.
MR. SCHECK: And your Honor, at the same time I would like to put up on the elmo what has previously been marked as Defendant's 1165. These are the charts of the amounts of nanograms of DNA.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Dr. Gerdes, starting with what is marked as 47--
DR. GERDES: Yes.
MR. SCHECK: --was that one of the Bundy blood drops that was handled by Dennis Fung and Andrea Mazzola on June 13th?
DR. GERDES: Yes.
MR. SCHECK: Was it one of the items that Mr. Yamauchi handled at the same period that he was handling Mr. Simpson's reference sample?
DR. GERDES: Yes.
MR. CLARKE: Objection, no foundation.
THE COURT: Overruled.
MR. SCHECK: This is when Mr. Yamauchi took out the stopper and the blood went through the chem wipe onto his glove?
DR. GERDES: That's correct.
MR. SCHECK: 48 the same?
DR. GERDES: Correct.
MR. SCHECK: 49 the same?
DR. GERDES: Yes.
MR. SCHECK: 50 the same?
DR. GERDES: Yes.
MR. SCHECK: 52 the same?
DR. GERDES: Yes.
MR. SCHECK: Now, 52, in terms of which of the Bundy blood drops swatches were opened up from the bindles, when Mr. Yamauchi began handling them on the morning of June 14th, which of the items did he handle first?
DR. GERDES: No. 52.
MR. SCHECK: Are you familiar with the estimate of the amount of human DNA in each of the Bundy blood drops, 47 through 52, as testified to by Gary Sims based on his calculation has from slot-blots, yield gels and the size of the swatches and their weight?
DR. GERDES: Yes, I am.
MR. SCHECK: All right. Do you regard those as accurate estimates as to the total number of nanograms of human DNA in those items?
DR. GERDES: Yes, they are consistent with his notes.
MR. SCHECK: All right. On--and in terms of the yield gels, is it a fair statement that 47, 48, 49, 50 and 52 were samples that were severely degraded in terms of bacterial DNA.
MR. CLARKE: Objection, vague.
THE COURT: Sustained.
MR. SCHECK: What was the status of those samples in terms of bacterial degradation?
DR. GERDES: They were all extremely degraded.
MR. SCHECK: Now, with respect to 52, is this the RFLP result that you are concerned about?
DR. GERDES: Yes.
MR. SCHECK: How many nanograms of human DNA did Robin Cotton testify went into that particular result?
DR. GERDES: She testified there was 25 nanograms.
MR. SCHECK: Is that different than all of the other RFLP results?
DR. GERDES: All the other RFLP results have more DNA, adequate DNA.
MR. SCHECK: At least four times more?
DR. GERDES: That's correct, at least four times more DNA.
MR. SCHECK: Were any other of the samples from which RFLP results obtained, were those handled in the presence of the reference sample and in the period where the reference sample was handled?
MR. CLARKE: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: Is it your testimony, sir, that there were unacceptable risks of cross-contamination that are associated with the results on 47, 48, 49, 50 and 52?
DR. GE