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.)
(Pages 24956 through 24982, volume 136a, transcribed and sealed under separate cover.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Good morning, counsel. Back on the record in the Simpson matter. All counsel are again present, Mr. Shapiro, Mr. Cochran, Mr. Scheck, Mr. Blasier, Mr. Neufeld. The People are represented by Miss Clark, Mr. Darden and Mr. Goldberg. The jury is not present. All right. Let's have the jurors, please.
MR. BLASIER: Your Honor, we have a number of matters that need to be resolved before we take Mr. Matheson. I'm wondering if you want to do that now.
THE COURT: Yes, perhaps we should. Mr. Blasier.
MR. BLASIER: There are several matters. There is the ruling on the serology chart.
THE COURT: All right. I received letter briefs from counsel on both sides with regard to that issue. Mr. Blasier, do you have any further comment you wish to make on that issue that is not included in your letter brief?
MR. BLASIER: Well, the People just filed--at least they handed me an unfiled copy of further paperwork on this this morning. I don't know if the Court has had a chance to review this or not.
THE COURT: I was handed something and told that was going to be resubmitted.
MR. GOLDBERG: And then I said that we were not. There was one typographical error which I corrected in hand and then dated it so that the Court can look at it.
THE COURT: All right. Mrs. Robertson, would you grab that off of my desk.
MR. BLASIER: As I understand the argument in this new paperwork, the People are taking the position that there should be no testimony about the EAP b results of the blood under Nicole Brown Simpson's fingernails on the basis that they are now saying that unless they can testify about these other inconclusive results, this now becomes an inconclusive, and that argument makes no sense to me. First of all, I'm not sure how to respond to it because it is a senseless argument. There are a number of statements--
THE COURT: You mean to say it is a contradictory argument. Go ahead.
MR. BLASIER: Okay. Both. I mean, there are other statements in this brief that are just flat not true. They talk about how the typing results for the pool of blood under Nicole Brown Simpson showing a banding pattern consistent with a type b and they say that this result was called an inconclusive B. I would like to have marked, Mr. Matheson's report on this.
THE COURT: Yes.
(Deft's 1126 for id = document)
THE COURT: Thank you. Mr. Blasier, if you will look at page 2 of this report you will see that item no. 42, which is the blood under Nicole Brown Simpson, Mr. Matheson concluded that it was an inconclusive; not an inconclusive b, but an inconclusive. If you look also at the blood on Nicole Brown Simpson's thigh, which is item no. 85-a and b, in this brief they just filed it is described as an inconclusive BA. In Mr. Matheson's report--
THE COURT: No. 85.
MR. BLASIER: Yes. In Mr. Matheson's report it is an inconclusive; it is not an inconclusive BA. The--you will also note that the fingernails, which were items 84-a and b, are not inconclusive at all; they are a b, a straight b, and to represent otherwise it is just simply not scientifically correct. Now, they may try to explain, well, it sure looks like a b but maybe it was a BA at some point in time, and we are prepared to deal with that particular argument, but to change the result to say they were inconclusive before but now we need to make them something else, it is scientifically fraudulent in our view and should not be permitted. So we would submit the matter with those comments on this brief that they just filed, as well as what I've already submitted in my brief before.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Actually, your Honor, it would be scientifically fraudulent not to admit them and that is why we felt so strongly about this and have insisted on this, to the extent that we have, in filing a number of points and authorities, and making a variety of arguments. We would like to call Mr. Matheson in a 402 hearing because we do believe that when the Court understands these issues and they are not--it is not immediately apparent why the Prosecution is taking the position that we are and why the Defense is taking the position that they are. In fact, there is a certain aspect to it that is counter-intuitive, because if you just look at the results on their face, the EAP result of the pool of the victim's blood being an inconclusive b is inconsistent with the Defendant and is inconsistent with the victims in this case and would seem to lend a theory that someone else deposited it, so you would think that the Defense should be seeking to get that result in, that the Prosecution would be seeking to exclude that result, because why would we want to put on a result, a--albeit an inconclusive one, that is inconsistent with anyone in this case. Why would the Defense want to exclude that result? It does seem to be counter-intuitive. But when the Court understands that scientifically, we know that the pool of the victim's blood has to be her blood and therefore we know that the true type is a BA and we know that that is not what we see when we test it, that tells us something about what is happening under the environmental conditions at the crime scene and it tells us that type EAP BA blood is degrading in such a manner as to create the appearance of a B. And I think Mr. Matheson can communicate this to the Court that I cannot and that is why we would seek to put him on for the purposes of explaining this and perhaps using a chart that we have that we would use with the jury to explain what this banding pattern looks like when it is not degraded, what it looks like when it is degraded, to explain the scientific literature that identifies this problem that we quoted in our most recent brief and to discuss the literature that says that according to some analysts you are required, as a forensic scientist, to look at the pool of blood and blood on the victim's clothing as a control study to determine whether or not you in fact have degradation on this one particular marker, because it has certain problems in terms of degradation that the other markers could not have.
And we have cited the literature which says that Mr. Matheson is required, according to these authors, to do the precise thing that he is doing and that he should not, if you accept these authors, express an opinion about the blood under her fingernails unless he has also looked at what is happening in the pool of blood and the blood that is on her clothing or on her person. Now, counsel has given you a copy of the analyzed evidence report which says--which simply reports inconclusives. It does not give an indication as to whether it is an inconclusive b or an inconclusive BA or what have you. On the electrophoresis work sheet, which in light of counsel's argument I should probably also mark, only unfortunately my copy has writing on it--I would like to give the Court a clean copy. I'm going to get a clean copy to mark, but it talks about the EAP result on 84-a and b which are the fingernail scrapings and 85-a and b which are the dots of blood that came from Nicole Brown Simpson's thigh. And the way that it is called on the electrophoresis work sheet, which is the one which is done contemporaneously with the testing while you are actually looking at the plate, the analyzed evidence report is an external document for the Court and the attorneys and so on, but was actually a document that is generated at the time of the analysis, what Mr. Matheson says on 84-a and b, that being the fingernails, is b question mark and the question mark typically--
THE COURT: Well, Mr. Goldberg, let's cut to the chase here. Let's assume as a result of this challenge the Court needs to conduct a 402 hearing. What is your time estimate as to how long that will take? And how do you suggest we accomplish this as expeditiously as possible, understanding we have a jury sitting in the jury room?
MR. GOLDBERG: I understand that, your Honor, and I don't like 402 hearings and I don't believe that 402 hearings should almost ever be done with live testimony, so this is not--this is contrary to my ordinary practice, because I understand what the Court is afraid of here, and that is that it is going to turn into a little bit of a mini trial on an issue where the Prosecution feels that there is no factual or legal issue for the Court to resolve. The bottom line conclusion that Mr. Matheson is going to give is that based on the totality of the evidence that he has in front of him, that the EAP results under the victim's fingernails are in fact a BA.
THE COURT: Well, Mr. Goldberg I asked you two specific questions. How long is this going to take and how do you suggest we do it?
MR. GOLDBERG: Okay. Now--
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Could we have a moment, your Honor? Thank you.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: The way I would suggest it, is this: Counsel has raised an objection to the People's chart. They haven't tried to limit the scope of Mr. Matheson's testimony or somehow force him into giving an opinion that is scientifically unsound and is contrary to what he believes as a forensic scientist, so what I would suggest is this: If the Court still has a problem with the chart itself for some reason, after looking at the People's brief and the Court believes that it would be helpful to hear more about this issue, then Mr. Matheson should simply be allowed in front of the jury to testify as to this result, to other results, to how he has interpreted them, to the forensic science literature and what he believes the literature requires in making this kind of an interpretation and his bottom line opinion. And after that I think it will become clear to the Court that the chart itself should come in as well as summarizing what is actually placed on the electrophoresis work sheet because the electrophoresis work sheet does in fact provide the 85 as a BA question mark or an inconclusive BA and all of our results to the chart do in fact come either from the electrophoresis work sheet or from the analyzed evidence report, so it is a summary of business records.
THE COURT: Are you suggesting that I conduct this 402 hearing in the course of the presentation of Mr. Matheson?
MR. GOLDBERG: Yes, yes.
THE COURT: I've heard that before. Mr. Blasier.
MR. BLASIER: We certainly object to that and let me make it clear we are not objecting to Mr. Matheson testifying as to how a BA degrades and what makes it look like a B. We are fully prepared to cross-examine him on that issue. But what we are objecting to is inconclusive results are anything other than that on and analyzed evidence report that he prepared was prepared after the work sheets and was based on the observation of the other work sheets. This is the report that he submitted for the attorneys and for the Court and for everyone else who wants to know these are the results that he called and he called them inconclusive and we object to him testifying to anything other than that.
THE COURT: All right. Thank you. All right. The Court finds that this particular issue as presented is an issue that goes to the weight of the testimony, the weight that is accorded to the testimony; not necessarily its admissibility. However, having said that, the Court anticipates that we are going to see rather extensive cross-examination as to this particular issue and I have to indicate to counsel for the Prosecution that given Mr. Matheson's original report, I suspect I'm going to have to give rather wide range to the Defense as to these "Inconclusive indications and degrading samples." let's have the jurors.
MR. BLASIER: Your Honor, there are other issues as well.
THE COURT: Such as?
MR. BLASIER: The Prosecution just brought in a new chart this morning on this very issue, the fingernail, and we have no objection to anything on the chart except there is a picture of Nicole Brown Simpson's body from a long-shot that I think it may have been used before in some other context, but it has no meaning really on this particular chart, and we think it is really gruesome and unnecessary.
THE COURT: Mr. Goldberg, will you get to that chart before we break for lunch?
MR. GOLDBERG: I don't anticipate that I will, but it is possible.
THE COURT: All right. Let's assume that we are not going to get to it and I will take a look at it over the lunch hour. I would like to get rolling.
MR. GOLDBERG: I believe it is a photo that has been introduced. And counsel has another motion.
THE COURT: It has to have some relevance, though, but I will look at it over the lunch hour.
MR. BLASIER: We did have an additional motion that Mr. Neufeld is prepared to argue that we filed this morning concerning the order of proof. In essence we are objecting to his testifying to any test results on Mr. Simpson's blood without proper foundation of the person who drew the blood. And Mr. Neufeld is prepared to--
THE COURT: Well, I assume I will hear that objection as soon as there is some testimony regarding the blood, foundational objection.
MR. BLASIER: And finally there was a brief filed on Thursday, I believe, about the business records exception and--
THE COURT: Regarding chain of custody?
MR. BLASIER: Regarding chain of custody. We have no objection to testimony from Mr. Matheson about what amounts to ministerial acts, putting things in packages and sending them off to any other labs, and we would object if they have any intention of offering testimony from Mr. Matheson about tests that some other person did or evidence collection that some other person did under that exception. But I understand from Mr. Goldberg, they don't intend to do that, so that may be a moot point.
MR. GOLDBERG: I don't have a present intention of doing that.
THE COURT: Terrific. Glad to hear it. Let's have the jurors.
MR. BLASIER: Finally, we would object in advance, to avoid a side bar, that if they intend to ask Mr. Matheson any questions about anything our experts have done, either at some other location or in Los Angeles, we object to that and want to be heard about that before that is done.
THE COURT: All right. That would seem appropriate. Mr. Goldberg.
MR. GOLDBERG: I do have a present intention of doing that, your Honor.
THE COURT: This morning's session?
MR. GOLDBERG: I don't think we are going to get to it this morning.
THE COURT: Okay. Give me a head's up when that comes so we can discuss that out of the presence. Let's have the jurors, please.
(Brief pause.)
(The following proceedings were held in open Court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the remaining members of our jury panel. Previously in chambers the Court conferred with counsel. The Court has found good cause to excuse from further service juror no. 2. Mrs. Robertson, would you please draw a number of an alternate juror to take seat no. 2.
THE CLERK: Juror no. 1427, will you please have a seat in seat no. 2.
THE COURT: All right. Mrs. Robertson, at the noon break, you will renumber the seats and provide Court and counsel with a revised juror chart.
THE CLERK: Yes, your Honor.
THE COURT: All right. Mr. Goldberg, would you call the People's next witness.
MR. GOLDBERG: Yes. The People call Gregory Matheson to the stand.
Gregory Matheson, called as a witness by the People, was sworn and testified as follows:
THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this Court, shall be the truth, the whole truth and nothing but the truth, so help you God.
MR. MATHESON: I do.
THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.
MR. MATHESON: Gregory Matheson, G-R-E-G-O-R-Y M-A-T-H-E-S-O-N.
THE COURT: Mr. Goldberg.
DIRECT EXAMINATION BY MR. GOLDBERG
MR. GOLDBERG: Sir, what is your occupation and your assignment?
MR. MATHESON: I'm employed by the city of Los Angeles working for the Los Angeles Police Department Crime Laboratory. I am currently what is called a Chief Forensic Chemist 1 which is an assistant director of the laboratory.
MR. GOLDBERG: Okay. And sir, in that capacity or in any other, are you part of any conspiracy in this case to frame the Defendant?
MR. MATHESON: No, I am not.
MR. GOLDBERG: Or part of any cover-up for the purposes of framing the Defendant?
MR. MATHESON: No, I am not.
MR. GOLDBERG: All right. Now, you said you are the Chief Forensic Chemist?
MR. MATHESON: Yes. That is the title.
MR. GOLDBERG: And what--why is it called that?
MR. MATHESON: Well, that is a civil service class that it was assigned to that position a while back. It exists in two steps; the Chief Forensic Chemist 1, which is an assistant director position, and the Chief Forensic Chemist 2 which is the laboratory director.
MR. GOLDBERG: All right. And how many Chief Forensic Chemists are there in the crime laboratory?
MR. MATHESON: Well, there is a total of three; one director and two assistants.
MR. GOLDBERG: Okay. I'm going to get into your training and experience in a few moments, but did you perform some of the conventional serological testing on some of the biological evidence in this case?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: All right. And also, did you participate in managing the sending of items out for analysis to outside laboratories?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: All right. Now, do you have a degree that qualified you to become a criminalist at the Los Angeles Police Department?
MR. MATHESON: Yes.
MR. GOLDBERG: And what was your degree in?
MR. MATHESON: Well, I have a degree in criminalistics from California State University at Long Beach.
MR. GOLDBERG: When did you get that, sir?
MR. MATHESON: It was in May of 1977.
MR. GOLDBERG: And I want to ask you about some of the other courses that you took since then. Do you have your curriculum vitae in front of you?
MR. MATHESON: (Nods head up and down.)
MR. GOLDBERG: Do you need to refer to that to give us specific dates and times?
MR. MATHESON: Yes, I do.
THE COURT: The record should reflect that Mr. Matheson does have before him a ring binder with a number of pages in it.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Sir, since you graduated in 1977, have you taken a fairly large number of courses in furtherance of your training and experience as a criminalist?
MR. MATHESON: At that point it depends on what you mean by "Courses." I have had a handful of what I would call formal training or courses, along with attendance in a number of seminars and meetings and that type of thing.
MR. GOLDBERG: Okay. I just want to go through some of the courses and seminars that are pertinent to the issue of serology. And let's start with the 1982, two-week FBI class. What was that about?
MR. MATHESON: Well, in 1982 I took a two-week course called buy chemical methods of blood stain analysis that was offered at the FBI academy in Quantico, Virginia. That was mainly about the electrophoretic determination of genetic marker types. It is the steps or the process that is used in what has been called in conventional serology to identify the types of enzymes that are present in the body.
MR. GOLDBERG: Okay. Just so that we are defining some of these terms, when you say "Conventional serology," that is distinguished from what?
MR. MATHESON: That term came around as DNA analysis in forensics started becoming possible or used within the field. In a way to define the difference, we started calling the systems and techniques that we had used for many years as conventional and the rest as being DNA.
MR. GOLDBERG: And when you say "Electrophoretic techniques," we will get into this in some more detail further down the line, but can you just give us a simple definition?
MR. MATHESON: Well, electrophoresis is a process or a technique whereby a gel is poured, sample of biological material is placed on the one end of it, an electrical current is passed through it and the end product is a sequence of bands that can be interpreted to tell what you type of blood you are looking at.
MR. GOLDBERG: And were these techniques, the electrophoretic techniques and ABO type testing, around for a significant period prior to the use of DNA technology?
MR. MATHESON: Yes, they were.
MR. GOLDBERG: Now, in 1987 did you attend a serology symposium?
MR. MATHESON: At--
MR. GOLDBERG: Dealing with collection and preservation of evidence?
MR. MATHESON: There was a symposium held that year which involved attendance by a large number of forensic scientists mainly in the California area. I did attend it; however, I was also one of the working groups that met with one of the committees for several months prior to that in preparation of the meeting. The area that I was involved in was standards and training.
MR. GOLDBERG: Okay. And what was the focus of this particular symposium?
MR. MATHESON: The focus of that symposium which was to elicit what was the standard practice or the consensus of practice within the forensic community at that point in time.
MR. GOLDBERG: In terms of what?
MR. MATHESON: What we were calling conventional serology.
MR. GOLDBERG: Did this deal with any of the collection and preservation aspects or just the testing aspects?
MR. MATHESON: No, it also involved a collection and preservation.
MR. GOLDBERG: And was there any product that was generated as a result of the symposium, such as a manual or pamphlet or publication?
MR. MATHESON: There was kind of a loose-covered document that I don't know the number of pages. It is about a quarter of an inch thick.
MR. GOLDBERG: All right. And did that cover the subjects of the collection, preservation and the conventional testing?
MR. MATHESON: That's correct.
MR. GOLDBERG: All right. Now, was a lot of focus placed at this serology symposium into the mechanics of how you actually collect a stain from a crime scene?
MR. MATHESON: The actually getting down on your knees--
MR. GOLDBERG: Right.
MR. MATHESON: No, it didn't go into that aspect of it very much at all.
MR. GOLDBERG: And do you know why?
MR. MATHESON: The only reason that I can--
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Well, you were part of this working group?
MR. MATHESON: No. The working group I was in dealt with training.
MR. GOLDBERG: Okay. Has the actual mechanics of how you collect a stain been a controversial issue or a widely discussed issue in the forensic field?
MR. MATHESON: No, it is not.
MR. GOLDBERG: Why not?
MR. MATHESON: Because it is a fairly basic process. Even in reviewing a number of forensic tests, there--texts, there is very little reference to that step. They talk about locating the stains and eventually then, you know, packaging and preserving them, but the actual collection is not addressed very often.
MR. GOLDBERG: Now, going back to some of the courses that you took, in 1989 did you take, I guess, two classes at the University of New Haven, Connecticut?
MR. MATHESON: Well, they were held at the university, however, they were--you know, it wasn't like a university course, but it was held at that facility.
MR. GOLDBERG: And can you tell us what the two classes were?
MR. MATHESON: Well, one of them dealt with the ABO typing of bone samples and the other one was an overview of DNA.
MR. GOLDBERG: When you say "ABO typing," you are referring to what?
MR. MATHESON: Well, that is--it is a fairly common what we call genetic marker. As a matter of fact, it is the genetic marker that most people are aware of. You are either a type a, type b, type o or type AB, and that is a system that hospitals usually use when they are cross-matching bloods for transfusions.
MR. GOLDBERG: Is that also used in blood banking?
MR. MATHESON: Yes, what is commonly referred to as your blood type.
MR. GOLDBERG: How long has that system been around?
MR. MATHESON: I believe it was originally identified at the turn of the century, 1900.
MR. GOLDBERG: So one of these courses dealt with--was it just ABO typing of bones or also--or did it also deal with electrophoresis?
MR. MATHESON: No, that was strictly ABO.
MR. GOLDBERG: Okay. And you said the other course had to do with DNA techniques?
MR. MATHESON: Yes.
MR. GOLDBERG: And what type of DNA techniques did that deal with?
MR. MATHESON: I believe it was mainly about RFLP, but we also spoke about the PCR technique.
MR. GOLDBERG: And those are two of the techniques that are used in DNA typing?
MR. MATHESON: Yes.
MR. GOLDBERG: And was this course instructed by a leading advocate of using DNA technology in forensic cases?
MR. BLASIER: Objection.
THE COURT: Sustained.
MR. GOLDBERG: Okay. Was the person that taught this course in favor of using DNA technology in a forensic setting?
MR. MATHESON: Well, actually it was taught by several different people. They brought in several different speakers to talk on different subjects, but yes, most of the people that were there were there because they believe in the technology.
MR. GOLDBERG: And was there any particular individual that is prominent in the forensic field that taught this course?
MR. MATHESON: One of the people that was involved in both setting the course up and presenting it was a Dr. Henry Lee, which is the head of the Connecticut State crime laboratory.
MR. GOLDBERG: And does he advocate using or support using DNA technology in forensic cases?
MR. BLASIER: Objection, foundation, hearsay.
THE COURT: Sustained.
MR. GOLDBERG: Well, did he actually teach some of the courses--one of the courses that you attended?
MR. MATHESON: I believe he was involved in presenting some of the information.
MR. GOLDBERG: All right. Did he appear to be a supporter of using DNA technology?
MR. MATHESON: Yes, he did.
MR. GOLDBERG: Now, in January of 1990 did you take a two-week course relating to DNA technology in forensic cases?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: And where was that course held?
MR. MATHESON: That course was held at--in Denver, Colorado, at the Analytical Genetic Testing Center.
MR. GOLDBERG: What did the course--how long of a period of time did the course last?
MR. MATHESON: Well, it covered two weeks. The first week dealt with the technique I mentioned before, RFLP typing in general, the basic background to it, involved actually performing some of the tests. The second week focused a little bit more on the technique that was used by the FBI.
MR. GOLDBERG: And then in June of 1990 did you attend some training at the University of New Haven Cetus Corporation?
MR. BLASIER: Your Honor, I object at this point as being irrelevant and beyond this witness' expertise.
THE COURT: Overruled.
MR. MATHESON: Yes, I did.
MR. GOLDBERG: What was that training?
MR. MATHESON: That was a course that was offered by the Cetus Corporation which I believe at the time was the manufacturer of the PCR kits that were being used for forensics, and it involved the theory and practice and techniques in PCR analysis, along with some hands-on, getting a chance to run the techniques ourselves.
MR. GOLDBERG: Okay. And how long was that course?
MR. MATHESON: I believe it was five days.
MR. GOLDBERG: Now, in addition to these courses that we just mentioned, did you attend seminars of the California association of criminalists?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And when did you start attending those seminars?
MR. MATHESON: Well, I became a member of the California association of criminalists in 1979 and attended every seminar I could go to from that time until now. I believe they are held twice a year and I think I have only missed three or four over that time period.
MR. GOLDBERG: How long are those seminars?
MR. MATHESON: Normally two and a half days; full day Thursday and Friday and half day on Saturday.
MR. GOLDBERG: What range of topics do they cover?
MR. MATHESON: Just about anything to do with forensic sciences.
MR. GOLDBERG: Do they deal with serology issues in these seminars?
MR. MATHESON: Many times serology is one of the main topics of discussion, both in the papers that are given and outside of them.
MR. GOLDBERG: And by the way, what is serology?
MR. MATHESON: Serology deals with the analysis of body fluids.
MR. GOLDBERG: Okay. Now, and you said that these seminars by the California association of criminalists are twice yearly?
MR. MATHESON: That's correct; once in the fall and once in the spring.
MR. GOLDBERG: And as a result of attending these seminars do you learn the practices that are standard within the criminalistics profession?
MR. MATHESON: That is part of it. Like I said, the seminars have a wide range of topics from particular techniques that may be used in the future that are just becoming available to us, to hints and tips on how to do, you know, current techniques better and just generally kind of dealing with the--you know, the topic in general.
MR. GOLDBERG: Are the forensic scientists who attend these seminars coming only from California or do they come from other places as well?
MR. MATHESON: No, they can come from just about anywhere. As a matter of fact, our last meeting, which was held in the fall, was done in conjunction with the forensic science society from England and we had a number of attendees join us from England.
MR. GOLDBERG: Okay. Now, is there also an organization known as the American Academy Of Forensic Sciences?
MR. MATHESON: Yes.
MR. GOLDBERG: And are you a member of that organization?
MR. MATHESON: Yes, I am.
MR. GOLDBERG: Do you attend their seminars?
MR. MATHESON: I have attended about four of them, yes.
MR. GOLDBERG: And how long are their seminars for?
MR. MATHESON: Well, they tend to--the actual papers or technical presentations are basically the same as a CAC meetings, the California Association Of Criminalists, in that they are about two and a half days. The meeting itself can run anywhere from six to eight days because there is an awful lot of ancillary type of activity that goes on.
MR. GOLDBERG: And is that--are those seminars along the same line as the California association of criminalists or do they differ?
MR. MATHESON: Well, in that they cover a lot of different areas of forensics, they are the same. They are significantly larger, though, because that is a national organization and it is composed of not just criminalists, but forensic pathologists, odontologists and dentists, and a lot of different areas in forensics, and each of these specialties are meetings, you know, at the same time in different areas of the same facility.
MR. GOLDBERG: So when you attend one of these meetings, do you go to all of the presentations or just the ones that are involved in your area of specialty?
MR. MATHESON: Well, you can't go to all of them because a lot of them are running at the same time. I try and not just stay with what I have spent most of my time with and that is serology. I like to attend all these that seem interesting or appropriate but will get out and get some exposure to some of the other areas.
MR. GOLDBERG: And as a result of attending these meetings do you also get an idea of the standards and practices that are being used in the forensic community on a nationwide basis?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, you mentioned this manual that was generated from the serology symposium, but other than that, have you had the opportunity or have you had time to publish papers yourself while you have been working at the Los Angeles Police Department?
MR. BLASIER: Object to the form of that question as--
THE COURT: Overruled.
MR. MATHESON: I have never personally published any sort of scientific paper.
MR. GOLDBERG: And why is that?
MR. MATHESON: Well, normally an awful lot of the papers that appear in scientific journals and that type of thing deal with research, validating existing systems, bringing new systems on line, that type of thing. My interest has not been in research. I enjoy applying the technology. I have always enjoyed doing case work, and a mere fact of the fact that we are with the Los Angeles Police Department and out criminalistics laboratory has a very high case load, there is unfortunately a lot of crime in this city and it does keep us busy just doing case work. So it is a combination of the two things. I don't have a strong interest to get out there and push and do that and I enjoin doing case work and there is plenty of case work to do.
MR. GOLDBERG: When you say "Case work," you are referring to what?
MR. MATHESON: Anything that comes into the laboratory associated with a crime or incidents within the city of Los Angeles. It could range from--the type of case which the laboratory gets run the gamut from narcotics to serology cases associated with homicides and rapes to blood alcohol analysis, just about anything.
MR. GOLDBERG: Let's turn a little bit to your professional career. When you were in school getting your degree in criminalistics, did you work for any law enforcement agencies?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: What agency did you work for?
MR. MATHESON: For the Culver City Police Department.
MR. GOLDBERG: And in what capacity did you work for the Culver City Police Department?
MR. MATHESON: My title was a community service aid and then it got changed to community service officer. Basically it was a student position, it was part-time during school and then full-time during vacations and holidays. I worked a couple of different assignments. I was with them for about five and a half years. Initially I was assigned to patrol where I would go out and assist with booking prisoners when they came in and taking burglary reports, simple things. Occasionally I would have to write parking ticket, that type of thing. I eventually, actually as soon as I could, got transferred out of that area into our identification unit because that interested me more, and in that unit I learned how to process a crime scene, fingerprint burglary scenes, photographed scenes, go out and fingerprint and photograph whatever type of crime scene that happened to come up.
MR. GOLDBERG: You said identification unit. What is that?
MR. MATHESON: Well, normally crime laboratories tend to exist only in the larger cities, the counties, state, you know, federal government, that type of thing. Small municipalities as a rule do not have crime labs. They have called what are called ident sections or identification sections. They focus in on evidence collection, fingerprinting and photography.
MR. GOLDBERG: When you were working with the identification section at the Culver City Police Department, were the people that you were working with criminalists or did they have some other job classification?
MR. MATHESON: Well, we are talking about a small department. The person that I worked directly with would be another civilian. It happened that the two people that I worked for, they were ident--identification technicians, they were both retired; one from the Los Angeles Police Department as a fingerprint person and another was retired from the L.A. County sheriffs as a fingerprint person.
MR. GOLDBERG: Did they also do things like collect biological evidence or was it limited to fingerprints and the like?
MR. MATHESON: No. If there was a reason, if there was a crime that involved biological stains or evidence, either they or I would, depending on who handled the particular scene.
MR. GOLDBERG: So they were collecting biological evidence even though they were not criminalists?
MR. MATHESON: That's correct.
MR. GOLDBERG: Okay. Is that standard throughout the state in terms of the way law enforcement agencies or many law enforcement agencies collect biological evidence?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Well, sir, are you aware of the standard and practices in a variety of law enforcement agencies as a result of your participation in these various state and national organizations that you have testified to?
MR. BLASIER: Objection, vague as to "A lot" of police agencies.
THE COURT: Overruled.
MR. MATHESON: I am aware that the personnel that are used to perform different tests varies from agency to agency.
MR. GOLDBERG: And do some agencies use criminalists, whereas other use technicians, identification technicians?
MR. MATHESON: Yes, that is correct. I mean, in the case of the city of Los Angeles we have criminalists, we do not have I.D. techs or identification technicians. We use criminalists to collect that. As I mentioned, many smaller municipalities that don't have crime labs have their I.D. techs collect the evidence, and actually, there are some cities that have their own crime lab that also hire I.D. techs who are the ones that go out and process mainly the simple scenes, but process scenes.
MR. GOLDBERG: Okay. Now, when did you first join the Los Angeles Police Department as a criminalist?
MR. MATHESON: It was in June of 1978.
MR. GOLDBERG: And by the way, are you a sworn personnel as a criminalist?
MR. MATHESON: No, I am not. Our criminalists are civilians.
MR. GOLDBERG: Now, when you first joined the Los Angeles Police Department in 1978, what was your first assignment?
MR. MATHESON: Well, I was hired in as a criminalist 1 and I was assigned to the toxicology unit.
MR. GOLDBERG: And how long were you at the toxicology unit?
MR. MATHESON: I worked toxicology from June of 1978 until I believe it was early January of 1980, so approximately 18 months.
MR. GOLDBERG: What was your next assignment after you were finished in toxicology?
MR. MATHESON: Okay. After working toxicology I was transferred to what we call a special testing unit and in that unit I dealt with maintaining a couple of analytical instruments, running some of the more unique or unidentifiable drugs or narcotics, bomb debris analysis, poisons analysis, variety of different things.
MR. GOLDBERG: So what does special testing unit do in terms of--I mean, do they just test anything and everything that is unknown or what?
MR. MATHESON: Well, with the way our laboratory is laid out, the special testing unit has some specific assignments, such as any sort of bomb residue case, a poison case, that type of thing would go directly to that unit. Bottom line, that basically the people that work that unit get whatever doesn't fit into any of the other units. It is things that may require some sort of unique or special handling.
MR. GOLDBERG: You were there for 18 months you said?
MR. MATHESON: Actually it was a little longer. I believe it was from January of 1980 until I think it was August of `81, so that would be about 20 months.
MR. GOLDBERG: All right. And where did you go after you were finished with your assignment in special testing?
MR. MATHESON: After that I was assigned to serology.
MR. GOLDBERG: And how long were you assigned to the serology unit?
MR. MATHESON: Well, as a criminalist 2 or doing bench work would have been until I believe it was May of 1988 when I was promoted to what was called a crime 3 then which is our supervisor position.
MR. GOLDBERG: Were you a supervisor in serology initially?
MR. MATHESON: Yes, I was.
MR. GOLDBERG: Okay. Now, you used another term, you said "Bench work." is that the same as case work or different?
MR. MATHESON: That is a term that is used for the person that is actually sitting working on the evidence doing the analysis is called bench work.
MR. GOLDBERG: Okay. How long have you been a supervisor at the Los Angeles Police Department and the crime laboratory? How many years?
MR. MATHESON: Actually I probably should have referred to my notes before. It was May of `89 when I was promoted, so it would be from May of `89 until October of `94 that I was a supervisor.
MR. GOLDBERG: So when you were first a supervisor, were you supervising anything other than serology at first?
MR. MATHESON: Well, my unit was rolling. I was also a member of one of our special field response teams that goes by the name of the forensic accident investigation team. That was formed while I was a Crim 2. Myself and two other criminalists were assigned to this. It was a special assignment to go out and collect evidence from specialized crime scenes, mainly those that were vehicular-related homicides, hit and runs, that type of thing. When I became a supervisor in May of `89, I was a supervisor then of serology plus of this team that I was on.
MR. GOLDBERG: And when you initially became a supervisor and you were supervising this team in serology, did you still play an active role in the bench work that was going on in the unit?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: All right. And in addition to that, did you also have any function in terms of reviewing reports and confirming results and the like?
MR. MATHESON: Yes. As supervisor of the unit, one of your goals is to or jobs is to review the analytical notes that come out of the criminalists or the analysts that work in the units. Before a report can be submitted out, we want to have it reviewed by a supervisor and either signed as being complete and accurate or returned to the analyst for either correction or updating, whatever it would require.
MR. GOLDBERG: Were you performing any function in terms of actually reading other people's electrophoresis plates or photographs of the plates?
MR. MATHESON: Actually for the first, oh, three plus years of being supervisor of the unit, I was still doing case work. Obviously it wasn't at the same level as I was before, but I was still an analyst within the laboratory. In addition to that, these electrophoresis plates that I previously described with the band on it, they were always co-read, either the original person that did the run, plus somebody else that was following up on it. It didn't have to be a supervisor, it could be a co-worker. I continue, as a matter of fact to this date, still continue to occasionally co-read plates.
MR. GOLDBERG: Okay. Now, approximately six months ago did your position within the crime laboratory change?
MR. MATHESON: Yes, it did.
MR. GOLDBERG: And what did it change to?
MR. MATHESON: Well, in October of 1994 I was promoted to my current position of Chief Forensic Chemist 1 and I currently manage what's called the forensic analysis section of the crime laboratory, which includes not only serology, but other units, such as our trace analysis unit, chemical possessing unit, which does fingerprints in-house, our firearms unit, the vali unit and questioned documents.
MR. GOLDBERG: And are you still performing bench work in this capacity, generally speaking?
MR. MATHESON: No, I have not.
MR. GOLDBERG: Are you still performing work in terms of looking at other people's electrophoresis plates and co-reading them?
MR. MATHESON: Occasionally. It is not near as often as it used to be obviously, but if somebody has some work that has been completed and they want it reviewed and there isn't anybody else available in the unit, for whatever reason, then they have come and asked if I would go back and do a co-reading on it.
MR. GOLDBERG: Are there any plates that only you are qualified to read or that you are--or that you have to read in the laboratory?
MR. MATHESON: There is one system that--called haptoglobin that I tend to read more than anything else.
THE COURT: How do you spell haptoglobin?
MR. MATHESON: H-A-P-T-O-G-L-O-B-I-N, I think.
MR. GOLDBERG: And why is it that you tend to co-read that more than others?
MR. MATHESON: Well, everybody has their own interest when it comes to a particular system or something within the unit. One of the criminalists that works the unit now is the one that runs them the most and she and I have worked together with it on the past, so I tend to read them for her when she has one of these come available. I haven't done it in I think it has probably been a month or month and a half, so either she is not running that system as often or somebody else now in the unit is training to co-read.
MR. GOLDBERG: Now, with respect to some of the professional organizations that we asked about, is there also an organization called the American Board Of Criminalists?
MR. MATHESON: It is the American Board Of Criminalistics, yes.
MR. GOLDBERG: And what is that organization?
MR. MATHESON: That is an organization whose function--actually, sole function, is the certification of criminalists on a national basis.
MR. GOLDBERG: And did you play any active role in that organization?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: What was that?
MR. MATHESON: I was involved in forming it. I believe it was in 1987 or `88, a group of people was called together and I was one of those that was invited to attend as a guest because I had some experience in certification, program a meeting held back in Chicago, and out of that meeting is eventually born the American Board Of Criminalistics, an incorporated nonprofit organization. And as I said, I was part of that original planning group of it, and then for the first two years of its existence, which I believe it was from February of `90 of `92, I sat as the vice-president of that organization.
MR. GOLDBERG: When you say that this was involved in certifying criminalists, what does that involve?
MR. MATHESON: Well, the process of certifying somebody is that you want to know or have some sort of indication that they possess the basic skills, you know, minimum skills and knowledge to be able to perform their job. And in criminalistics, there was a lacking of a system like this, particularly on a national basis, so what we did is in establishing this organization, gave the profession of criminalists throughout the country a body with which they could apply to, take a test, do proficiency testing, these types of things, to be able to demonstrate that they have the minimum criteria necessary to do this type of work.
MR. GOLDBERG: And what type of showing does a person have to make or criminalist have to make in order to get this certification?
MR. MATHESON: Well, there is actually a couple different levels of this certification process. To be in the American Board Of Criminalistics, to be what is called a diplomate, you have to have two years experience in forensic science. You have to pass a written examination that is on general criminalistics, not in any one particular field, and be working in the field, actively working in it.
MR. GOLDBERG: And do you have that?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: Now, is there also an organization known as the California association--well, we talked about the California association of criminalists. You said you joined in 1979?
MR. MATHESON: Yes.
MR. GOLDBERG: Did you hold any sort of positions within that organization, other than just being a member?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And in 1987 did you begin to hold an office in that organization?
MR. MATHESON: Well, in 1987 I was--I was made the chair of the certification committee. At that time the California association of criminalists was interested in starting the certification program, actually before the national effort began, and the first step toward doing that is putting together a committee. I was the first chair of that committee when it was formed, I believe it was either in January or February of 1987, and I held that position until the program was actually up and running and we were testing people and organizing certificates.
MR. GOLDBERG: All right. And did your status in that organization change in approximately May of 1990?
MR. MATHESON: Yes. In May of 1990 I was appointed to the position--a board of directors position called the regional director south. Our association is basically divided into north and south and I sat on that position on the board of directors for one year.
MR. GOLDBERG: And then in May of 1991 did you run for president of that organization?
MR. MATHESON: Yes, I did. Actually it is--you run for president elect. It is a three-year committee. The first year you are president elect you sit on the board, it is a board position, kind of learn the job. The second year is as president of the association. The third year then is the immediate past president where you still stay on the board, have an active position in it, but it gives you a chance to wind down and assist the current president.
MR. GOLDBERG: And did you serve in that capacity for those three years?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: So then your term ended in May of `94?
MR. MATHESON: That's correct.
MR. GOLDBERG: Do you continue to serve on any committees or any organization within the California association of criminalists today?
MR. MATHESON: At the moment I currently belong to two committees. One of then is the publication committee that is involved with putting together our newsletter, and the other is a financial review committee. I would have liked to have been more active on it, but I have been a little busy lately, so though I belong to them, I haven't been as active as I would like to be.
MR. GOLDBERG: Are you also a member of the California association of crime lab directors?
MR. MATHESON: Yes, I am.
MR. GOLDBERG: What is that?
MR. MATHESON: That is association that--I don't know what their current membership is, I think it is probably in the eighty to ninety range--that is made up of managers and supervisors of crime laboratories mainly in California, but we also have members from other states.
MR. GOLDBERG: And while you were working in the serology section of the Los Angeles Police Department can you give us an estimation of approximately how many ABO types--ABO tests you performed during that period of time?
MR. MATHESON: I would like to--I didn't memorize those numbers. I did make myself up a review chart of the type of tests and the quantities that I did. During the course of my--my career in serology--
THE COURT: Hold on just a second. Let counsel review the chart that you are referring to.
THE COURT: Sure.
(Brief pause.)
THE COURT: Thank you, counsel. Proceed.
MR. MATHESON: Okay. In the area of ABO typing I estimated that I have done approximately 6500 of those type of tests.
MR. GOLDBERG: Okay. And approximately how many electrophoresis tests have you performed on something called PGM subtype?
MR. MATHESON: That would be--it was approximately a thousand.
MR. GOLDBERG: Now, I would like to ask you a little bit about crime scenes. Have you had any experience in actually going out to crime scenes during your professional career at the Los Angeles Police Department in processing crime scenes yourself?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And approximately how many crime scenes would you say that you have processed?
MR. MATHESON: My best guess is about 150. I didn't have real good statistics on that, but I think that is my best estimate. I think it is conservative.
MR. GOLDBERG: Have you ever rigged up any mock crime scenes for training purposes?
MR. MATHESON: A couple, yes.
MR. GOLDBERG: All right. And when you attend these seminars at the California association of criminalists and the American Academy of Forensic Sciences, do they cover to some extent--do they cover crime scene investigation as some of the topics in those seminars?
MR. MATHESON: Sometimes they do, yes.
MR. GOLDBERG: Have you trained any people within the Los Angeles Police Department in terms of crime scene investigation?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: Have you trained any people outside of the SID section in crime scene investigation techniques?
MR. MATHESON: Yes.
MR. GOLDBERG: Who would that be?
MR. MATHESON: Well, I have been one of the instructors in a couple of our detective training courses that we offer. One of them is the sexual assault detective school. They obviously focus more on scenes and evidence collection relating to sexual assault. I also have taught for a couple of years in our homicide detective school, teaching them open the division's capabilities, SID's capability when it came to crime scene and simple evidence collection techniques. I also teach at a detective supervisor school and we touch lightly on field techniques.
MR. GOLDBERG: When you say "Evidence collection technique," have you ever taught detectives how to collect a stain using LAPD's procedures?
MR. MATHESON: Talking about a biological stain?
MR. GOLDBERG: Yes.
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And why are detectives taught that?
MR. MATHESON: Well, I--we want the detective to be able to have the capability of collecting biological stains, blood drops, that type of thing, if a criminalist isn't available. Though we do have an on-call system where a criminalist is available to be called out anytime of the day or night to assist with evidence collection, we are not always called. Sometimes the--the scene may only have one or two drops or one or two items. You don't feel it is necessary to call us, but that is still evidence that we want to have captured for later analysis, so we have been for I believe it is the last at least six or eight years, training homicide detectives mainly on the proper techniques for collecting biological evidence. We supply them with a blood collection kit, which is simply a file box with the tools that are necessary in it to collect those samples.
MR. GOLDBERG: And are they taught how to, you know, take a control and use the distilled water and use the tweezers and the whole nine yards?
MR. MATHESON: Yes. They are both shown in a demonstration form. We talk to them about it. It is demonstrated to them, and if time permits, we have them practice it within the class.
MR. GOLDBERG: And are detectives in fact collecting biological evidence in the Los Angeles Police Department and submitting it to your laboratory for analysis?
MR. MATHESON: Yes, they do.
MR. GOLDBERG: Okay. Now, does the Scientific Investigations Division also have a field unit?
MR. MATHESON: Yes, we do.
MR. GOLDBERG: And is that--who supervises that now?
MR. MATHESON: Right now the unit is--they have a lead criminalist or what we call a criminalist 3 that is in charge of that unit. That person also works in another unit. Our trace supervisor is the immediate supervisor of them and then I manage it.
MR. GOLDBERG: Now, why wasn't the field unit assigned to processing the evidence or collecting the evidence in this case?
MR. MATHESON: The--deciding who ends up processing a scene is mainly a function of what time the call comes in. Like I mentioned a few minutes ago, we have people that are on call, criminalists that are on call 24 hours a day seven days a week. However, if a call comes in during working hours, normal working hours, which for our field unit is 7:30 to 4:00 Monday through Friday, rather than send the off watch person who may be up the night before or may be going out the following night, we send somebody from this field unit to do the evidence collection.
MR. GOLDBERG: Is the field unit--are the people assigned to the field unit necessarily more experienced in crime scene processing than the individuals that are criminalists who are on rotation?
MR. MATHESON: No, not necessarily. They can be. Our field unit consists only of Crim 2 individuals or those people that are advised to the point where they could handle a crime scene by themselves if they had to; however, they--we rotate people through that unit just like we rotate people through our off-watch on-call situation.
MR. GOLDBERG: So if in this case the evidence shows that there was a Bronco search that occurred on the 14th during the daylight hours, why would the field unit not respond to that, as opposed to Mr. Fung and Andrea Mazzola?
MR. MATHESON: Well, what we try and do is maintain some consistency throughout a particular case. If it is possible, the person that handled the scene, say, the night before or week before, if some sort of follow-up occurrence occurs, like a car search or an additional scene, we want the same people handling it that handled the original scene, so in that case that is why we do not send out somebody from the field unit.
MR. GOLDBERG: Would you always have to--if you had two criminalists that responded to the first scene on day no. 1, will you always send the same two criminalists to the second scene or can just one or the other go?
MR. MATHESON: We can--it depends on the circumstances. We can just send one of the team, or if neither one of them is available, we will go and send somebody from another part of the laboratory.
MR. GOLDBERG: But is there any rule that if you use two on day one, you have to use the same two on day two?
MR. MATHESON: No.
MR. GOLDBERG: All right. And typically within the Los Angeles Police Department Crime Laboratory do you always send two criminalists to investigate a crime scene?
MR. MATHESON: We try and get two people out to a scene whenever possible, yes.
MR. GOLDBERG: Are there instances where only one is sent?
MR. MATHESON: Well, we make an evaluation as to the complexity of the scene. If it appears that it is going to be something very simple, maybe a simple car search or something that involves going to a tow yard and doing examination, there are times where we will send only one, but we believe two people can do a better job.
MR. GOLDBERG: And was there ever any management decision that was made not to send Andrea Mazzola out to subsequent--certain subsequent scenes after the 14th?
MR. BLASIER: Objection, leading.
THE COURT: Overruled.
MR. MATHESON: As far as--I mean, there are obviously decisions made when somebody is sent or not sent, so in that case it was. There has never been a decision made that said she will not handle any more scenes, no.
MR. GOLDBERG: That is what I meant, there was never a decision like that?
MR. MATHESON: That's correct.
MR. GOLDBERG: So if on a subsequent scene, because of the complexity, you only needed one person, you would only send one person out?
MR. MATHESON: That is possible, yes.
MR. GOLDBERG: Now, in this particular case, before testifying, have you watched some of the proceedings or heard some of the proceedings on television or on the radio?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And have you heard some of the testimony and seen some of the testimony related to the crime scene processing?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And did you also speak to me about the testimony that you were going to give?
MR. MATHESON: Yes.
MR. GOLDBERG: What were the nature of those discussions?
MR. MATHESON: Mainly it was--it was a two-way thing. I was in--preparing you for what I was going to be testifying to, just as you would talk and tell me some of the areas that we were going to discuss. Normally it is just acquainting each of us with styles and with general topic areas that are going to be brought up during direct examination.
MR. GOLDBERG: Did you also provide me with some instruction in terms of how ABO typing and electrophoresis is performed and certain technical topics such as that?
MR. MATHESON: Yes. That was part of my comment about preparing you for it. There has been kind of a training process going on to a quaint both or to acquaint you with the techniques and the procedures that we use.
MR. GOLDBERG: Have you also talked to any Defense lawyers and given--provided them information about the case as we have progressed?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And is there any rule within the LAPD crime laboratory with respect to talking to Defense lawyers? I mean how does that work?
MR. MATHESON: The only rule that we have deals with discovery materials and that is, is that if items are going to be released to the Defense, that the Prosecution--Prosecutor's office is aware of it and that if it isn't your own, that the original criminalist is aware that this information is being provided. Beyond that there is no specific rules about who you can or cannot talk to with regards to a case.
MR. GOLDBERG: Do you talk to Defense lawyers?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: And is it common for criminalists to speak with the person that is going to be calling them as a witness prior to getting on the witness stand and testifying?
MR. MATHESON: Yes. It is not only common, it is preferred. We want to make sure that everybody understands what is going on, that you have a chance to discuss the issues.
MR. GOLDBERG: Let's get a little bit into the issue of collecting evidence. First of all, what does it mean, from a criminalistics standpoint, to collect evidence at a crime scene?
MR. MATHESON: Well, collection involves everything from documenting where the evidence is, describing the item of evidence that is being collected, the actual process of picking the evidence up off of the ground or off of whatever item it might happen to be, eventually packaging and describing it for a property report and then what is called booking it in or placing it into our property facility.
MR. GOLDBERG: And when evidence is collected at the--by a criminalist at the Los Angeles Police Department Scientific Investigations Division, do you use some sort of form in the field for the purposes of doing that?
MR. MATHESON: We have actually a couple Dennis Fung sets of forms, one of them that I believe is called a crime scene checklist and the other is a vehicle search checklist.
MR. GOLDBERG: I wanted to show you Defense 1107 for identification and ask you some questions about that form.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: It is the page, your Honor, that is in table form. Chart form I should say.
(Brief pause.)
MR. GOLDBERG: Is the resolution good enough so that you can see that, Mr. Matheson?
MR. MATHESON: I can see it. I can't read it, but I can see what it is and I recognize what it is.
MR. GOLDBERG: Okay. That is one of the pages in the crime scene identification checklist?
MR. MATHESON: Yes, it is.
MR. GOLDBERG: And is this page typically filled out contemporaneously with the evidence collection or with certain phases of the evidence collection?
MR. MATHESON: Most of the information is; some of it is filled out later on.
MR. GOLDBERG: Well, in terms of the numbers and measures, are those done at the time that the measurements are actually done or shortly thereafter?
MR. MATHESON: Yes, I would expect it to. The item number, along with a kind of brief description of what it is, such as red stain, coat, whatever it happens to be, along with the location of where it was found, the--you know, if it was on the street or on a bed, and then measurements in the room or location, if that is appropriate.
MR. GOLDBERG: Now, are there any strict rules in the Los Angeles Police Department laboratory with respect to how this form is to be filled out?
MR. MATHESON: No, there isn't.
MR. GOLDBERG: And do you have a function now, in reviewing these forms, after they come back from the field?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, with respect to the photo i.d. Number column or i.d. Photo number, actually, excuse me, it just says, "I.d. Photo," what is that to be used for, generally?
MR. MATHESON: For me I have always considered that a check box as to whether or not a photograph was taken of a particular item out at the scene. Sometimes it doesn't happen, either a photographer is not available or whatever, and that has been the place where I see, yes, a photo was taken, check it off.
MR. GOLDBERG: Have you noticed any other practices?
MR. MATHESON: I believe that there have been a couple people that use that as an indication of maybe an alternate location if there was a different number used or something. I am aware that people have different interpretations of what that column means.
MR. GOLDBERG: And is there any requirement that you have to check off everything in that column?
MR. MATHESON: Not at this point, no.
MR. GOLDBERG: Well, let's move the form over a little bit.
MR. GOLDBERG: What about the "Buy" column? What is that to be used for?
MR. MATHESON: My understanding of that, is that is a spot where you put your initials, the person that was involved in collecting the evidence.
MR. GOLDBERG: What if you were working in a team, how is that to be used?
MR. MATHESON: Well, in the same way. If a--you have a couple of people out there and for some reason it may be important at some point to know who picked it up, it would be nice to have the initials of the person who was involved in it, but it is not necessarily required.
MR. GOLDBERG: And if you are working in a team and both people saw a particular piece of evidence collected, is there any standard practice with respect to whether you say the person that physically picked it up, his initials should go in there, or both people's or how is that handled?
MR. MATHESON: No. We don't have consistency on that.
MR. GOLDBERG: Okay. And what about the "Time" column? How do you use the "Time" column personally?
MR. MATHESON: Normally you use the "Time" column to bracket things. If I am going to be--many times in the situation of picking up evidence, you go through and you locate the evidence, have it photographed. You put your numbers down and have it photographed with the numbers, do your measurements. You kind of work in groups of items and say a particular vicinity or locale at a scene. What I would do is record the time of the first item in a group that I pick up, rough guess as to what time it is, you know, look at my watch or something like that, and then I record the time of the last item in that group and just run a line between them. Sometimes I don't even record that information on this form. I have also been known to write it on the packaging or the envelope and then come back and fill that information in later.
MR. GOLDBERG: So if you had ten items, you would know--in that particular group you would know when the first and the tenth were collected with some specificity?
MR. MATHESON: Roughly, yes.
MR. GOLDBERG: And then everything else would just be an arrow between those two times?
MR. MATHESON: A line, yes.
MR. GOLDBERG: Do other criminalists use that in the Los Angeles Police Department?
MR. MATHESON: Yes.
MR. GOLDBERG: And are there other practices that are used?
MR. MATHESON: Well, there are some people that record the time for each and every time that they pick up.
MR. GOLDBERG: Okay. Now, from a serology standpoint, if you are talking about a stain that was collected at, let's say, eleven o'clock and then a second stain that was collected at 11:15, is there any forensic significance to knowing that one was at a 11:00 and the other one was at 11:15, generally?
MR. BLASIER: Objection--
THE COURT: Objection.
MR. BLASIER: --to the phrase forensic "Significance." no foundation as to what that means.
THE COURT: Vague.
MR. GOLDBERG: Well, is there any significance from a serology standpoint to the time difference?
MR. MATHESON: No, there isn't.
MR. GOLDBERG: Okay. Now, within the forensic community, based upon your membership in these various organizations that you have discussed, are you aware of any consistent practice with respect to when you are working in a team investigating crime scenes whether you should signify who physically collected a particular piece of evidence, whether you should separate it out?
MR. MATHESON: I don't remember having any discussions about that.
MR. GOLDBERG: That is not a hot topic within the forensic community?
MR. MATHESON: No, it isn't.
MR. GOLDBERG: All right. What about the issue of the times? Is that a--
THE COURT: Would you locate that item.
(Brief pause.)
THE COURT: All right. Mr. Goldberg, proceed.
MR. GOLDBERG: What about with respect to the portion of the list that says "Time" or notating the time? Does that appear to be a controversial or hot topic within the forensics community as to how you should fill that kind of information out?
MR. MATHESON: Not specifically as to how it should be filled out.
MR. GOLDBERG: What is the goal that is--the criminalist is trying to achieve in generating this paperwork? I mean, why do you even have to bother with it?
MR. MATHESON: Well, the main reason is to be able to locate where the items came from. The most important piece of information that is on there or the sequence of information that exists on that form is the item number, the location where the item came from and a description of the item itself. That way you can track that item through the system. Many of the other items that are on there are nice to have, but the most important thing are those three items; the number, the location and a brief description of what it is.
MR. GOLDBERG: So do those three items help you to place a particular piece of evidence back in the crime scene? In other words, figure out where it came from specifically?
MR. MATHESON: Yes. Well, it relates back to the photo that was taken of it, so you can see a picture of how it was at the scene and gives you a location of, you know, in general where it was.
MR. GOLDBERG: But if you have a photograph, is it absolutely necessary to even have this kind of information? I mean, isn't it duplicative to a certain extent?
MR. MATHESON: Well, to a certain extent, but not completely. Photographs are not perfect in their depth or their perception as to where they are. It is still nice to have, you know, measurements to generally locate where it is in relation to other items in relation to a room or in relation to a victim, something like that.
MR. GOLDBERG: Okay. Now, is there any rule within the Los Angeles Police Department as to whether this form can be filled out in pencil or pen or any other writing instrument?
MR. MATHESON: No, there isn't.
MR. GOLDBERG: And with respect to erasures, is there any rule on that?
MR. MATHESON: No, there isn't.
MR. GOLDBERG: If the form is a mess to the point that it is difficult to read, can the criminalist rewrite it?
MR. MATHESON: Are we talking about the whole form?
MR. GOLDBERG: Or portions of it?
MR. MATHESON: There is no rule that says they can't rewrite or clarify certain areas of the document.
MR. GOLDBERG: Maybe we can just look at the next page.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: 17, 18 and 19.
(Brief pause.)
MR. GOLDBERG: This is also 1107, your Honor.
THE COURT: All right.
(Brief pause.)
MR. GOLDBERG: Have you seen this--taken a look at this document before?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: For instance, on this document, if you wanted to clean it up to mays it in numerical order and because some--some of the items appear to have been erased and written over, is there any rule that would prohibit you from doing that?
MR. BLASIER: Objection to leading.
THE COURT: Overruled. But we have gone over this.
MR. GOLDBERG: Well, but--
THE COURT: Previously.
MR. GOLDBERG: But it is something that the Defense made a lot about it.
THE COURT: But we have gone through it, we have discussed it. You can get his perspective as a manager, but I think we have about covered it.
MR. GOLDBERG: Just one question on this and we spent about an hour on it during the Defense case.
THE COURT: Well, counsel, one question. Proceed.
MR. MATHESON: Can you repeat the question?
MR. GOLDBERG: If I don't get in trouble.
MR. GOLDBERG: With respect to this type of form, if the criminalist wanted to clean this up because there are erasures or just to put things back in numerical order, would there be any rule against that?
MR. MATHESON: There would be no rule with them rewriting it from an administrative point of view. I would like to have the original still thrown in with the notes, but if it made things clearer to rewrite things or reorder them, that would be fine.
MR. GOLDBERG: But is there any written policy or oral policy on that one way or another, that you are aware of?
MR. MATHESON: No, there isn't.
MR. GOLDBERG: Now, you said that part of your function is to--currently as a supervisor is to review--thank you--crime scene identification checklists when they come back. Did you do that in this particular case? Did you review these?
MR. MATHESON: Well, as the--when I was a supervisor of the trace and--or serology unit, I also at one point was given the trace unit. One of my duties did involve the review of field notes as it related to crime scenes. These were not reviewed prior to their photo identifying and distribution.
MR. GOLDBERG: Why was that?
MR. MATHESON: It was mainly a function of the hecticness at the time. We were involved both in this case and along with many other ones that go on constantly within the city. Mr. Fung does not work directly in our facility, he is in one of our satellite locations, and he had the notes with him for a period of time, and it was just a matter of circumstances that by the time we got copies of the original ones for distribution, they had not been reviewed at that point.
MR. GOLDBERG: And who was supposed to actually review those while you were the trace supervisor? Was it supposed to be you personally or did you have someone under you?
MR. MATHESON: The normal process would be the notes would be left in a box in our trace unit. They would be initially reviewed by our lead or the Crime 3 of the field unit and then he would give them to me with a recommendations of either filing them because they are complete or suggested things to advise the criminalist on when it came to maybe making them more complete prior to filing.
MR. GOLDBERG: Did you have a Crime 3 of the trace unit at the time that this case was--at the time that Mr. Fung and Miss Mazzola went out and investigated the crime scenes?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: Okay. Was he at that time reviewing them or were you doing it?
MR. MATHESON: It was--we were both doing it. He was--he was reviewing the majority of them, but I was also involved in that.
MR. GOLDBERG: Okay. And what is the purpose of reviewing them at all?
MR. MATHESON: Well, it is kind of a two-fold purpose. One of them we are looking to see if they are complete or as complete as possible, that they have recorded things like field tests that were performed, that--mainly that they were as complete as if there were areas that were left undone, we would send them back to the criminalist, and if he had that information available, we would ask them to make them complete. If they didn't have it or they would have to just make guesses on the information, we didn't want that. At that point it becomes a training process in that we point out to them maybe you should put a little more detail here, you should make sure your measurements are all included, whatever it happened to be, so that the next time they went out in the field their notes would be more complete than they are currently are.
MR. GOLDBERG: So on occasion you will ask someone to actually add something to the crime scene identification checklist, to add some additional information?
MR. MATHESON: I will if I'm sure that they know that information, that they are absolutely positive, that they are not just putting something in there to fill it in.
MR. GOLDBERG: And that review process serves as a training function?
MR. MATHESON: That's correct.
MR. GOLDBERG: Now, on the crime scene identification checklist in this case, there has been some testimony that Andrea Mazzola was placed on as the officer in charge on the Bundy list, her name.
MR. MATHESON: I am aware of that, yes.
MR. GOLDBERG: And is there any significance to that?
MR. MATHESON: No.
MR. GOLDBERG: Why is that done typically? What does that signify?
MR. MATHESON: Well, the OIC or officer in charge, just normally by habit it is the person who is on call. Officially that weekend Miss Mazzola was the criminalist on call. When Detective Headquarters Division, which is the section of our department that dispatches us, has a homicide scene where a criminalist is requested, they go to a sheet that we supply them on every Monday and Friday, and refer to the name of the criminalist that is available, and the name appearing on that sheet was ms. Mazzola. She then, because of the fact that she was a Crime 1, would call the Crime 3 that was responding to her, the supervisor, in this case, Mr. Fung. So it merely was an indication of the fact that it was her weekend on call and her name was placed on top.
MR. GOLDBERG: And that is how it is typically done? Is that what you are testifying to?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, with respect to collecting evidence again, do you have a practice that when you are talking about biological evidence, of collecting representative samples?
MR. MATHESON: Yes.
MR. GOLDBERG: What does that mean?
MR. MATHESON: To me a representative sample is--well, probably the best way to do it is by an example. If you have a blood trail that leads away from a scene or into a scene, whatever, if you have a blood trail that consists of thirty or forty drops that goes on for a block or two, it would be unnecessary and inappropriate to pick up every single drop of blood along that trail, because you can tell by looking at it that it is a continuous trail being dropped by the same person. What we would like to see, rather than picking up all forty of them and spending the time doing that, is to pick up what we call a representative sample of that trail, a blood sample from the beginning, maybe one or two in the middle, depending on how long it is, or more, and one from the end. I would also expect somebody that is doing a trail like that to collect any sample that appeared out of place or not consistent with the trail. That is my definition of what a representative sample from a crime scene is.
MR. GOLDBERG: And what about in a situation as in a car like the Bronco in this case? Do you have to collect every last stain in there or do you take a sample of them? How do you do it?
MR. MATHESON: Well, it depends on the quantity of blood that is present. If there are a couple of stains that are grouped together, then I would say, no, you probably are not going to collect every single one of them. I would expect that in doing a car search you would pick up samples from different areas within the vehicle that represent the possibility of different blood samples coming from different individuals.
MR. GOLDBERG: And what is the purpose of taking representative samples in situations like the ones you have talked about, as opposed to just collecting every last stain that is there?
MR. MATHESON: Well, we deal with reality when it comes to resources. We have only a certain number of people that are available to collect evidence and a certain number of people to analyze evidence and at some point you have to be practical, you have to decide that you are spending too much time picking up every one of these 20 samples where that time could be better spent evaluating other parts of the scene, getting the samples packaged and ready to go. And then ultimately, when it comes to the serology unit, they are not going to analyze all of those items as a rule anyway, they are going to have relied on the person at the scene to pick up the best samples, the ones that are most representative of the crime and the people that were involved and it is the best utilization of the resources so that we can get as much provided for the people of Los Angeles as we can with the resources that we have.
MR. GOLDBERG: Can you Judge how well a criminalist has done in terms of processing or investigating a crime scene with biological evidence by figuring out the quantity of stains that he or she collected?
MR. MATHESON: No. We have had some people that collect very few but always seem to find the most probative sample, and we have had people in the past that collect many, many samples, but don't always give us the best information.
MR. GOLDBERG: When you say most probative, you mean what?
MR. MATHESON: Ones that answer the questions, ones that if there is multiple people bleeding at a scene, that we are getting blood from multiple people and not just from one. Whatever is necessary to get the most appropriate or the best information out of the evidence that is there left at the scene.
MR. GOLDBERG: Now, is this idea of using selectivity in collecting evidence one that is discussed in some forensic science literature?
MR. MATHESON: Yes, I am aware of it being discussed elsewhere.
MR. GOLDBERG: And specifically, did you look at the discussion of this idea in Henry Lee's book on crime scene identification, the one that I always refer to as Henry Lee child's edition?
MR. MATHESON: I have seen that information in his book, yes, that you need to be selective in the samples that you collect.
MR. GOLDBERG: And I would like to just show you one portion of this book and see whether you have taken a look at it. It just has big print. That is the big print book. You recognize it?
MR. MATHESON: Yes, I do.
THE COURT: Yes, "Child's" referring to the size of the print.
MR. GOLDBERG: Referring to the size of the print, big print. It was my idea of a joke, but anyway.
THE COURT: You are obviously not at the age where you need bifocals.
MR. GOLDBERG: Well, I am getting there.
(Brief pause.)
MR. GOLDBERG: May I approach the witness?
THE COURT: You may.
MR. GOLDBERG: And directing your attention to page 79, the first full paragraph, maybe you could just--have you considered that paragraph? Have you read that before?
MR. MATHESON: Yes, I have read it before.
MR. GOLDBERG: Maybe you could just read what Dr. Lee says about collecting evidence where it starts "Recognition" and--well, maybe just starting there through the rest of the paragraph.
MR. MATHESON: "Recognition of evidence involves selectivity and a general understanding of logic of crime scene. If all objects at the scene are collected and submitted to a forensic laboratory for further analysis, the forensic facility will be overwhelmed. If critical evidence is omitted or improperly preserved, the use of sophisticated equipment cannot salvage the investigation, hence correct crime scene search and collection methods are of paramount importance."
MR. GOLDBERG: So basically it is a balancing act between not wanting to overwhelm the laboratory with too much and not wanting to miss the relevant evidence?
MR. MATHESON: That's correct.
MR. GOLDBERG: Now, with respect to the Bronco--well, I will get into that later. Have you heard some testimony to the effect that in this particular case that there were five stains at Bundy location, all of which were collected, whereas there were three stains at the Rockingham location, a, b and c, that were not collected?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And is there, from a forensic science standpoint, in terms of crime scene identification, based upon your understanding of the evidence in this case, any reason for that?
MR. MATHESON: There is a--my understanding of it, yes, there is an explanation for that.
MR. GOLDBERG: What is that?
MR. MATHESON: Well, in the case of the items that were collected from Bundy, that was the crime scene. We had two victims there and there were blood droplets that appeared to be inconsistent with having come from either of the victims, so they would indicate somebody else had been present at that location. At that point it made sense to collect as much as possible of that, keeping in mind what I said before, if it had been extremely long I would have expected them not to collect all of them but to collect a good representative sample of what we have there as far as the blood goes. As far as the other location at Rockingham, that was not a crime scene, it was another location that may or may not have been involved, and they used a little bit more selectivity there, collecting a stain at the beginning, at the end, and leaving some of the ones in between in place.
MR. GOLDBERG: Your understanding is that there was no body or evidence that a crime actually occurred at that location?
MR. MATHESON: That's correct.
MR. BLASIER: Objection, leading.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Is it your understanding that there was no body or evidence that a crime was actually committed at that particular location?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: It is okay. I will withdraw the question.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Now, did you also hear some evidence to the effect of a--I'm not sure if it was triangular, but a little corner piece of paper that was in the area of the entrance to the caged-off area not having been collected?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: And what is your view on that?
MR. MATHESON: As far as I am concerned--
MR. BLASIER: Well, I'm going to object to that question as being vague.
THE COURT: Sustained.
MR. GOLDBERG: Should that have been collected?
MR. MATHESON: Yes.
MR. GOLDBERG: And why?
MR. MATHESON: The area that we are talking about, as far as this crime scene goes, is fairly limited in size and not like--again, using an example, if the crime had occurred in an alley where there was a lot of debris, a lot of trash around, then some selectivity should have been done. You are not going to collect every bit of paper, every bit of trash that is in an alley. This particular area, though, was smaller, I assume had some maintenance done on it with some regularity, possibly cleaning up. A piece of paper in that location kind of stands out as being potentially involved somehow, and had the criminalist been aware of it existence, should have collected it.
MR. GOLDBERG: Okay. And could the non--could the failure to collect that item have in any way affected any of the other biological evidence, some of which you tested in this case?
MR. MATHESON: No, not in any way.
MR. GOLDBERG: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Maybe we can just get a picture. I'm sorry. While they are looking for that, let me go on to another topic and then we will come back to it.
MR. GOLDBERG: Does the Los Angeles Police Department use plastic baggies or plastic bags for the purposes of putting the wet swatches until they have had an opportunity to dry them?
MR. MATHESON: The plastic baggies are used to transport the evidence, yes, until they can be taken back to the laboratory, opened up and allowed to dry.
MR. GOLDBERG: And how long has that procedure been used?
MR. MATHESON: Well, that is the one that I learned pushing 17 years ago, so it has been in use at least that long.
MR. GOLDBERG: And during the 13 or so years that you were involved in the serology, was that--was that right, was it approximately 13?
MR. MATHESON: Yes, approximately 13 years.
MR. GOLDBERG: What affect, if any, did you observe on that collection technique on the evidence that you were actually testing?
MR. MATHESON: Well, considering it was the technique that was used and it was the standard technique in our laboratory, and we would with regularity analyze evidence items that would give us good typeable or identifiable results, I would have to say that the use of that technique was appropriate and effective for bringing samples into the laboratory for analysis.
MR. GOLDBERG: And during the 13 or so years that you were in serology, did you notice any particular problems in terms of evidence being degraded to the point where you couldn't get results?
MR. MATHESON: Well, there is not an ongoing problem at all with degradation that I can relate back to the bags. Occasionally we would have a piece of evidence come through that had been allowed to stay in the bag, that is very inappropriate, and that would show us problems with that evidence.
MR. GOLDBERG: Under what circumstances would that happen?
MR. MATHESON: If the person forgets to take it out, if they were not properly trained. That would happen sometimes with the detectives. It is just is a situation that would occur, though very rarely.
MR. GOLDBERG: Sometimes when the detectives were collecting some of the stains?
MR. MATHESON: Occasionally, but rarely.
MR. GOLDBERG: And in those instances where it was not taken out of the bag to dry for an extended period--well, when you say "Extended" what do you mean?
MR. MATHESON: I mean as far as ultimate packaging, it then gets put on a shelf and is left anywhere from many days to months.
MR. GOLDBERG: You mean you would have situations like this occasionally with detectives?
MR. MATHESON: Where we would see a blood sample still left in a plastic bag?
MR. GOLDBERG: Yeah.
MR. MATHESON: Occasionally but rarely.
MR. GOLDBERG: And what happened on those samples?
MR. MATHESON: Normally they were degraded. You won't get false results; you would just get no results.
MR. GOLDBERG: What do you mean you wouldn't get false results?
MR. MATHESON: Well, except for a very specific situation, degradation of a sample doesn't change the type to another type; it just makes it so you don't get no information at all.
MR. GOLDBERG: So when you say "No information," when you do your tests what do you come up with?
MR. MATHESON: No result. There is no typeable result that is obtained.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: So in that particular instance, if the perpetrator's blood has in fact been lifted from a crime scene or a crime location and the results have been degraded to the point where you don't get any information, would that benefit the perpetrator?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: MR. GOLDBERG: Would that cause the perpetrator to be falsely included as a possible donor of the stain?
MR. MATHESON: No, it would not.
MR. GOLDBERG: Could it cause the perpetrator to be falsely excluded?
MR. MATHESON: No, there is no information there at all; it just wouldn't provide any forensic information.
MR. GOLDBERG: Okay. Now, let me just go back to this photograph. I would like to mark this photograph as People's 205 for identification of what appears to be the little piece of paper. I think it is depicted in some other photographs.
(Peo's 205 for id = photograph)
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: May I approach the witness?
THE COURT: Yes.
MR. GOLDBERG: Mr. Matheson, I would like to show you 205. Is this your understanding of the piece of paper that we just questioned you about?
MR. MATHESON: Yes, it is.
MR. GOLDBERG: Okay. Can we see that?
MR. GOLDBERG: All right. And is this the piece of paper you said that would you have collected if you had been out at the crime scene?
MR. MATHESON: If I was aware, yes, that is one of the items.
MR. GOLDBERG: Assuming it hadn't been covered over by a blanket or some other item and you had seen it?
MR. MATHESON: If I had seen it, yes.
MR. GOLDBERG: Now, is this the kind of thing where there is a hard and fast rule that you should collect it or is this the kind of thing about which reasonable forensic scientists could differ? I mean, how would you characterize it?
MR. MATHESON: When it comes to what to collect, there are very few hard and fast rules. That is what is acquired with experience, the mental picture of what you collect and what you don't collect. So far as a hard and fast rule whether or not somebody should collect it or--or told to collect it by a manual, no, that doesn't exist.
MR. GOLDBERG: Okay. And in your estimation, Mr. Matheson, if this particular piece of paper were located in an area where there was a fairly extensive pooling of the victim's blood, would this be the kind of evidence that you would want to test for biological evidence showing the victim's blood type?
MR. MATHESON: I don't believe I would recommend this particular item to be tested for the biological evidence on it, particularly in light of other evidence that was collected.
MR. GOLDBERG: Okay. Thank you.
MR. GOLDBERG: Now, going back to the issue of collecting--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Why would you not recommend that that be collected--tested for biological evidence?
THE COURT: Do you want to rephrase that.
MR. GOLDBERG: Why would you recommend that that piece of biological evidence or the biological evidence on it not be tested further for genetic markers?
MR. MATHESON: Like I just mentioned, we have to look at the whole scene and we do have other items of biological evidence that provide information as to what possibly occurred. This particular one being found in close proximity to the victim, being heavily blood-stained, at some point we do have to make some assumptions and the assumption would be that the blood that is present on that is coming from the victim herself. At some point, if it really seemed necessary, or if there was a lot of other evidence in the case, we may want to go after and analyze some of the individual drops, but it would be a low priority when it comes to that.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: I just wanted to show one of the overall photographs of the crime scene that has already been marked.
(Discussion held off the record between the Deputy District Attorneys.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Your Honor, I wanted to show him People's--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: It is 43-d, and I guess this is--it is a bloody photograph, but--so the Court might want to cut the feed.
MR. GOLDBERG: Sir, showing you what has been previously marked as People's 43-d, in this area of the pooling of the blood, how much, if any, of that blood on the sidewalk--it is not a sidewalk--in this walkway should be tested?
MR. MATHESON: On that particular location very little of that blood--it is--common sense does come into play when you are picking and choosing which items to analyze or which items to collect, and common sense would tell you that by far, if not all of the blood that is visible in that picture is coming from the victim herself. I would want at least one sample or item of that blood to be collected as a standard of the victim, but--
MR. GOLDBERG: And if the evidence showed that the piece of paper were found in what would be the upper right-hand portion of the photograph, would that location be consistent with the answer that you previously gave about why you would not want to test that necessarily for biological evidence?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: Is there anything about the photograph and the placement of the object that would relate to your answer previously given as to testing the piece of paper for biological evidence?
MR. MATHESON: Well, given the location of that piece of paper and the way it is heavily stained, I wouldn't say that we would never test it, but it would be a very low priority.
MR. GOLDBERG: Okay. Thank you.
MR. GOLDBERG: Now, getting back to the issue of collecting stains, have you looked at the Los Angeles Police Department manual, specifically section 525.2, as to booking of biological evidence?
MR. MATHESON: I--yes, I have. I have looked at a number of manual references. I would like to make sure that the one you are talking about is the one I'm thinking of.
(Brief pause.)
MR. GOLDBERG: I'm just going to show this to refresh the witness' recollection.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Sir, showing you a section of the Los Angeles Police Department manual, do you recognize that?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: And specifically 525.2 talks about preserving wet stains?
MR. MATHESON: Yes.
MR. GOLDBERG: And does that state in the second sentence that "Plastic containers or plastic wrap shall not be used as a packaging material"?
MR. MATHESON: Yes, it does.
MR. GOLDBERG: What is your understanding of that requirement?
MR. MATHESON: Well, the--the operative term there is "Packaging." We teach an inconsistency with the manual at that paint and say that biological evidence should never be stored or packaged for permanent storage in plastic.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Now, when you say "Packaging," final packaging, what are you talking about?
MR. MATHESON: When the items are submitted to our property division for storage until such time they are analyzed.
MR. GOLDBERG: Okay. I will get into that a little bit more later. So in terms of the usage of plastic bags for transporting a stain from the scene to the laboratory when it is dried, within the forensic science community and among serologists, is that one acceptable technique for collecting a stain?
MR. MATHESON: Yes, it is.
MR. GOLDBERG: Now, does the Los Angeles Police Department--let me just ask you another question about the manual first. Is this manual, the manual provisions dealing with the booking of evidence, are they up to date?
MR. MATHESON: No, they are not.
MR. GOLDBERG: In what manner are they not up to date?
MR. MATHESON: A perfect example is, is we currently have within part of SID a property room that is called the evidence control unit and we have a courier system which are light-duty officers that travel throughout the city at night collecting evidence from the different stations and bringing them down to our evidence control unit for final storage. Both of these functions have been in existence for at least, well, I believe two to three years, one of them longer than that, and there is no reference to either one of them that I am aware of in the manual.
MR. GOLDBERG: In other words, there is no reference to this new evidence control unit that you have at SID in the manual?
MR. MATHESON: That is my understanding, yes.
MR. GOLDBERG: Okay. And if a piece evidence is collected from a crime scene, biological evidence, in a manner that is forensically accepted, but the manual provisions have not been updated in such a way so as to authorize that particular collection, would it affect the outcome of the test?
MR. MATHESON: Well, first off, I would rather they followed the proper procedure rather than following the manual.
MR. GOLDBERG: Okay.
MR. MATHESON: If that is the way that we are doing something, then it is better to use a procedure that is going to give you the best results than a reference in the manual that may be outdated.
MR. GOLDBERG: Now, with respect to the crime scene truck, is there a refrigerator in the crime scene truck?
MR. MATHESON: Yes, there is.
MR. GOLDBERG: And what kind of materials are stored in the refrigerator?
MR. MATHESON: Mainly it is chemicals, particularly chemicals that we use for field spot tests.
MR. GOLDBERG: Would there be any problems in storing biological evidence in the refrigerator?
MR. MATHESON: Any problem with it?
MR. GOLDBERG: Yeah.
MR. MATHESON: No. There isn't a lot of space, but there wouldn't be a problem with it.
MR. GOLDBERG: What about spillage? Is there any issue concerning spillage of these chemicals on to the biological evidence?
MR. MATHESON: Well, ultimately that could be a problem, but we don't have a lot of spillage in them, but we do carry chemicals in there.
MR. GOLDBERG: Now, is there any rule that you are supposed to use the refrigerator when you are collecting a stain?
MR. MATHESON: No, there is none.
MR. GOLDBERG: What about with respect to the whole blood? When whole blood is collected and a criminalist comes into possession of it, does that whole blood that is taken as a reference sample have some preservative in it?
MR. MATHESON: Yes, it does.
MR. GOLDBERG: I would just like to show you what has been previously marked as Defense exhibit 11--1111--excuse me, 1112, and 1124 for identification, two purple-topped tubes. Do you recognize those items?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: What are they?
MR. MATHESON: They are two sample of two different brands of blood collection tubes.
MR. GOLDBERG: What is the significance of the purple tops?
MR. MATHESON: The color of the top of any tube indicates the preservative or anticoagulant that is present inside of the tube. Purple, that happens to pertain to something that goes by the initials of EDTA.
MR. GOLDBERG: Do you use purple-topped tubes in the laboratory?
MR. MATHESON: Yes, we do.
MR. GOLDBERG: And do they come from the manufacturer with the EDTA in them?
MR. MATHESON: Yes.
MR. GOLDBERG: What does it do?
MR. MATHESON: It--I'm not sure if it is just an anticoagulant or if it is an anticoagulant preservative, but it helps the blood to stay in such a position that it is available or typing.
MR. GOLDBERG: Is it helpful when you have EDTA to refrigerate that reference sample immediately?
MR. MATHESON: Not immediately.
MR. GOLDBERG: How long can you keep the purple-topped tube out or should you keep it out before you refrigerate it?
MR. MATHESON: I don't know if I know of any particular, you know, specific time frame. I would like--personally I would like it to get into a refrigerator as soon as it is possible. However, I do know that we get legitimate results if it is not placed to a refrigerator as soon as possible, so I can't give a specific time frame on that.
MR. GOLDBERG: What happens if you get a reference sample from a living victim or a living Defendant--the Defendant has to be living--and the activity from the tube is lost genetic activity?
MR. MATHESON: Well in that situation that creates a little bit more paperwork, I'm sure, but the source of that blood is still available. We can get additional tubes.
THE COURT: All right. Mr. Goldberg, would this be a good spot?
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Maybe could I just ask one more question to tie this up, if I could?
THE COURT: All right.
MR. GOLDBERG: And what is the effect therefore if the genetic activity is lost from one of these tubes?
MR. MATHESON: Well, if it is lost, then the information from that particular tube is no longer available to us; however, if we can get an additional sample from that individual, the results would be exactly the same as from the first tube.
MR. GOLDBERG: And what if you couldn't get an additional sample from the individual? Would you get a false inclusive as a result of the blood vial having degraded?
MR. MATHESON: No. You wouldn't get a result. There would be nothing to compare the information from your evidence items to compare it to.
MR. GOLDBERG: Similar to the case of a dried stain taken from a crime scene?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: Well, that is similar to the explanation that you previously gave when we were discussing the stain taken from a crime scene?
MR. MATHESON: That's correct, in that if you lose the information, there isn't anything there to compare it to. You do not make then erroneous comparisons; inclusions or exclusions.
MR. GOLDBERG: And in this particular case were you able to test and get results from the reference sample that came from the Defendant?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Did you test the reference sample in this case, item no. 17?
MR. BLASIER: Objection.
THE COURT: Sustained.
MR. GOLDBERG: I didn't hear grounds.
THE COURT: Foundation.
MR. GOLDBERG: Okay. I will take it up--maybe we could take it up during the--
THE COURT: All right. The person whose cellular telephone went off is ordered to immediately surrender that telephone.
(Brief pause.)
THE COURT: In this section of the courtroom.
(Brief pause.)
THE COURT: If I don't get a response from anybody, everybody is going to be searched in and out of the courtroom for the presence of cellular telephones and pagers. We have had number problems with this. We have disrupted these proceedings six times already.
(Brief pause.)
THE COURT: I don't want to have to order the bailiffs to search each individual person, so the person with the cellular phone--
AN UNIDENTIFIED WOMAN: There was a couple ladies back here and they left.
THE COURT: Their purses were searched when they left.
AN UNIDENTIFIED WOMAN: Oh.
(Brief pause.)
THE COURT: All right. The bailiffs are ordered to search each individual entering the courtroom. No pagers, cellular telephones, any noise devices may not be allowed in the courtroom from this point hence. All right. We will be in recess, one o'clock.
(At 12:01 P.M. the noon recess was taken until 1:30 P.M. of the same day.)
Los Angeles, California; Monday, May 1, 1995 1:00 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All the parties are again present. Mr. Blasier, when we recessed, you indicated that there was something about--we had one other issue, one of the boards that you had an objection to.
MR. BLASIER: Actually now there are two issues, Judge. They just brought another board in.
THE COURT: All right. Well, let's take a look at the first board.
MR. GOLDBERG: Which board?
MR. BLASIER: The fingernail board.
MR. GOLDBERG: Is it okay if we arrange this in this manner so it's--
THE COURT: Yes. I have before me a board that's entitled, "Nail clippings, scrapings, Nicole Brown." and my recollection, Mr. Blasier, you made an objection to the photograph that appears on the bottom?
MR. BLASIER: That's correct. On the bottom and middle.
THE COURT: What's the nature of the objection?
MR. BLASIER: It's overly gruesome, doesn't add anything to the topic of the fingernails. It adds nothing. It tends to inflame the jury resulting in an emotional reaction rather than non-emotional. I object to it on those grounds. It's already in evidence I think in some other form. I would object to having it on the chart as well.
THE COURT: What's the other evidence, markings of this particular photograph? Mr. Fairtlough, do you know that?
MR. FAIRTLOUGH: Yes, your Honor. I believe it is People's exhibit no. 42. Let me just check and verify that. Actually, your Honor--I am sorry. It is not yet in evidence. There are very similar photographs to it that are People's exhibit no. 42, which bear the frame counter number 0039. This bears the frame counter 0040. Does the Court wish to see the two photos?
THE COURT: No. I recognize the scene that's depicted there. All right. Mr. Goldberg, why do we need this?
MR. GOLDBERG: What?
THE COURT: Why do we need this?
MR. GOLDBERG: The reason is that this goes back to the EAP issues. The Court recalls the Defense made a big deal in the opening statement about someone else's blood being found under Nicole Brown's fingernails, and we're going to address that in some great detail. The Court knows that one of the things we want to do in order to do that is to put on evidence as to the testing of item no. 42, which is the blood underneath Nicole Simpson, Nicole Brown. And what I want to be able to show here is why it was reasonable from a forensic science standpoint to make an inference about the results under the fingernails from the results on the pool of blood. I want to show that they are in contact, that she is lying in that area and that the blood that Mr. Matheson tested, item no. 42, is subject to the same environmental conditions and was deposited on the crime scene at the same time presumably as the blood underneath the fingernails.
THE COURT: So you're saying the relevance is the location and position of the hands from whence the nail scrapings come?
MR. GOLDBERG: Yeah, in contact with the pool of blood and then the relevance of the hands themselves, the close-ups of the hands, which I believe may also be in evidence according to Mr. Blasier. Is that they do the same thing. They're showing that this is all really part of one contiguous and continuous blood source, and therefore, we can take test results from a variety of locations in that source of blood under the fingernails and interrelate them trying to figure out what's happening to the items underneath the fingernails.
THE COURT: All right. Mr. Blasier, do you have any response to that?
MR. BLASIER: Just that the jury has seen these pictures over and over and over again. You can't even see item 42 in any of these pictures. I think it's irrelevant and cumulative and prejudicial.
THE COURT: All right. The Court finds that in this particular context, the location and position of the hands relative to the crime scene itself, the pool of blood and the location of Nicole Brown Simpson as she was found, that there is significant probative value with regards to the nail clippings and scrapings and that the jury has already seen a similar picture to this in a relevant context. I don't think it will have the inflammatory effect that counsel argues. So the objection will be overruled. All right. What's the second board?
MR. BLASIER: There's a new chart that just was brought down at 1:00 o'clock I believe, and it concerns testing by the Defense. And this was an issue that we talked about a number of times before. We're waiting for a ruling from the Court on issue related to these items on this board I believe. And we have--we weren't aware that they were going to have a board like this. We strenuously object to the Prosecution going into anything concerning what we have done during the course of our confidential privileged investigations. We have stated many times that we are not challenging chain of custody for any of these items during the period of time when we had possession of them. There is virtually no probative value. Clearly there's a prejudicial effect to what they want to do. We strenuously object to any testimony concerning what happened to items when they were in our possession or what didn't happen to items.
MR. GOLDBERG: Your Honor, with the Court's permission, maybe Mr. Harmon could address this because he's going to use this with one of his witnesses and mine in order to establish the authentication for the exhibit.
THE COURT: All right. Let me ask you though, Mr. Goldberg, before you go one question. When do you anticipate using this?
MR. GOLDBERG: I'd say I probably have about an hour and a half worth of material to cover to two hours is my best guesstimate prior to this board.
THE COURT: All right. Mr. Harmon.
MR. HARMON: Your Honor, this--remember, we proposed the stipulation that could accomplish what this board accomplishes, and it kind of disappeared from everybody's agenda. This board is our attempt to utilize the provisions that you made in your order on February 8th. They would like everybody in the world and this jury to think they never tested any evidence in this case, and that's simply not the case. They took part of our samples in October. They did not have writing on them. That was pursuant to the Court's order. Mr. Matheson can lay the foundation for that being turned over. When they came back, they had all these names and dates all over them, and that's the subject of what we're going to discuss Wednesday afternoon, but it's also contained in the stipulations. And so absent them stipulating to a very sanitary, you took our evidence, you brought it back, you consumed part of it in the testing, which is what you afforded us the opportunity to do, we have to prove it, and this is one way that we begin proving it, your Honor.
THE COURT: Mr. Blasier.
MR. BLASIER: The critical phrase there is "Consumed in testing." we've stated from the beginning we have no objection to the jury being told that the reason there is a half of three swatches missing is because it was provided to the Defense. The jury needs to know nothing beyond that. Mr. Harmon wants to get into what we may have done in a confidential privileged basis where he wasn't there. He doesn't have the foundation to go into that. He wants to raise some sort of specter that because we've tested evidence, that we got results we didn't like, which is not--
THE COURT: So your objection is characterizing it as having been used in testing rather than just having been given to you for whatever purpose you deem appropriate?
MR. BLASIER: Correct.
THE COURT: So if the Court's instruction to the jury is that on such and such a date, this item, for example, item 47, the possession of which was given to the Defense, that a certain portion of that was given--was removed and given to the Defense and then the remainder returned to the Prosecution on a subsequent date, you have no objection to that--
MR. BLASIER: No problem with that at all.
THE COURT: All right. Then you would have I take it then no objection if that is the limitation on the testimony here with regards to these packaged items?
MR. BLASIER: Well, I would object to the introduction of these large photographs and the packaged items with all sorts of signatures on them that presumably Mr. Harmon is going to feel the need to explain to the jury where they came from. Nothing is added by this chart that isn't conveyed to the jury by what you just said, what the Court just said.
THE COURT: All right. Mr. Harmon.
MR. HARMON: Well, we've been pussyfooting around with this for months now, Judge, and every time--you know, we tried to make it in a direct very sterile way, and then they dodged it, then they filed this prosecutorial misconduct when any fool can read what happened to these things. And now when we're about to prove things, which is what the jury trial is about, now they want you to just tell them something. Well I'd rather that--we're not asking for a stipulation. We're not asking for an instruction. We're asking to explain the factual history of what happened to these samples. And whatever legal instruction you give at a later point I'm sure will comport with the process--or the due process requirements, that we can't comment on the Defendant not testifying or them not presenting any evidence. But this is the factual history, the chain of custody of these things. And we've tried in many ways to resolve this. And now when it comes time through the logical witness to begin the proof process, now they want you to just tell them something that's just not quite true, consistent with the factual history of these stains. I think we should just prove it, your Honor.
THE COURT: All right. Thank, you counsel. I'll contemplate that. Mr. Goldberg, let me know when you're about to launch into that. We'll take a break. And I need to look at two cases before I rule on this.
MR. GOLDBERG: Thank you.
THE COURT: All right. Let's--
MR. BLASIER: One other quick issue, your Honor. Mr. Goldberg showed us some papers, some handwritten lab notes this morning that we have never seen before. He indicated that he thought they had been turned over. Mr. Scheck and Mr. Neufeld and I have never seen them. We don't yet have copies of them. I would ask that we be provided with copies and that he not elicit any testimony concerning these documents until we've had a chance to explore them and find out why we didn't get them in a timely fashion.
THE COURT: What are these things, Mr. Goldberg?
MR. GOLDBERG: Your Honor, these are not lab notes. This is an item that was generated on 6-29-94 which are the handwritten copies of the inventory that was done that was the subject of the Griffen hearing and it was subsequently generated in a typewritten form. Counsel says that he does not have it in a handwritten form, but I believe that the handwritten copy of this was introduced at the Griffen hearing itself as an exhibit, as exhibit k to that hearing. But he is correct, it does not have l numbers or d numbers. But if they went through the Griffen hearing materials, they'd find that this is, as I said, exhibit k.
THE COURT: All right. Mr. Goldberg, are you going to get to any information on that at this point before our next recess?
MR. GOLDBERG: I could. And as I said, it's identical to--well, I'll probably get to it sometime around when we address the photographs that are the subject of the Court's other pending--
THE COURT: All right. Is there an item k from the August hearing? Will you pull that out, Mrs. Robertson?
MR. GOLDBERG: But at any rate, it should be identical to the typewritten one that was generated from it.
THE COURT: Was that during Mr. Matheson's testimony?
MR. GOLDBERG: No. I believe that was during Miss Kestler's testimony.
THE COURT: How many pages are these handwritten notes, Mr. Goldberg? Is this the 11 pages?
MR. GOLDBERG: That's correct, your Honor. Apparently it was marked by Mr. Scheck.
THE COURT: All right. Item k in the transcript, in the list of exhibits at page 6, transcript of August the 23rd indicates item k are handwritten notes, 11 pages dated June 29, 1994. And the testimony was that these were then converted into the computerized, computer-generated printout and they were, as you indicate, marked by Mr. Scheck for the purposes of that hearing. Mr. Blasier.
MR. BLASIER: Well, I wasn't aware. I knew they're not in the lab work. These are handwritten notes, that we were under the impression we were given all of the handwritten notes prepared by people at SID. I don't believe those are in any of the discovery documents. Whether they were proceeded at the time of that hearing or whether Mr. Scheck got a copy, I'm just not sure. But I know there is a typed document that presumably mirrors that.
THE COURT: Well, it appears that Mr. Scheck had them for the use of the Griffen hearing. So the argument that you haven't seen these before--I'll allow--I'll have the staff make you a photocopy of what Mr. Goldberg has. Do you have any additional copies, Mr. Goldberg? Mr. Goldberg, do you have any additional copies?
MR. GOLDBERG: No, your Honor.
THE COURT: All right. Would you give that to Mr. Burn for me, please, and, Mr. Burn, would you make some photocopies of that? All right. Let me know before you get to that particular document and we'll get a copy for counsel. All right. Let's proceed.
MR. BLASIER: Your Honor, also, we had a number of foundational objections right before lunch that we need to resolve.
THE COURT: That's correct. All right. What's the nature of your objection, your foundational objection?
MR. BLASIER: Your Honor, Mr. Neufeld has prepared the brief on this, ask that he argue that if possible.
THE COURT: Well, you're the one presenting the witness, counsel.
MR. BLASIER: Well--well, we strenuously object to have Mr. Matheson testify about the results of any testing conducted on Mr. Simpson's reference sample without a proper foundation being established, and that foundation being testimony by the nurse who drew it, the manner in which it was drawn, how it was preserved, how it was logged in, how it was packaged and how it got to the point where he performed testing on it. The foundational question, as the Court is aware, we're raising serious questions about foundation, chain of custody, packaging, collection--
THE COURT: Do you have any argument that's not included in Mr. Neufeld's written argument?
MR. BLASIER: No.
THE COURT: All right. Mr. Goldberg.
MR. GOLDBERG: Well, your Honor, on page 19367 of the transcript, it's volume 110, Detective Vannatter's testimony, he did testify to seeing the item drawn--to the Defendant being in the jail dispensary and blood sample having been drawn and that he then took that blood sample and dropped it off to Mr. Fung at the Rockingham location. Actually the chain of custody on the blood sample has been more thoroughly explored in this case prior to Mr. Matheson's testimony than any other exhibit that I can recollect in any of the previous trials that I've been involved in. I believe we've gone into this for hours and hours and hours and we have testimony leading from the time that it came out of the Defendant's arm to the time that it was packaged up in the gray analyzed evidence envelope and booked. That's the first argument. So just simply factually, the Defense is wrong. The second argument is, on order of proof, the Court has complete discretion with respect to the order of proof and how witnesses are going to be called. If we were to require a chain of custody to be done on every item prior to the witness testifying to it, then we would not be able to get into evidence of the fingernail scrapings, because we haven't heard from the Coroner yet, or the clothes that came from the Coroner on which some testing was done, which we clearly can do, and we would not be able to present evidence on the victim's reference vials which came from the Coroner. A lot of these things have to be tied up later, and we also have a situation here where items of evidence were exchanged back and forth between cellmark and the Department of Justice. So how would you do that? I mean, one of those organizations has to testify first. So if cellmark testifies first, they're going to be testifying to items, some of which--
THE COURT: Let's look at the item that we're talking about here today.
MR. GOLDBERG: Well, the point is this, your Honor; is that there are dozens of items, the chain of custody of which is going to be proved through other witnesses, whether they're Coroner's witnesses, whether they're DOJ witnesses, whether they're cellmark witnesses or whether they're other SID witnesses. We also have--
THE COURT: I'm not interested in that issue or that argument. I'm just interested in this blood vial, this particular situation.
MR. GOLDBERG: And that's what I'm trying to address, is order of proof, which is contained in penal code section 320, which says that, "Except