Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted; Maya Hamburger, Esquire, appearing on behalf of Marguerite Thomas.)
(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: Good morning, counsel. Miss Hamburger.
MS. HAMBURGER: Good morning, your Honor. May I address the Court?
THE COURT: You may.
MS. HAMBURGER: Maya Hamburger representing Marguerite Thomas. Miss Thomas was scheduled to testify this morning. During the week Mr. Darden and I talked about a more convenient time and we decided to put it over, with the Court's permission, to June 16.
THE COURT: All right. Any comment, Mr. Darden?
MR. DARDEN: No, your Honor.
THE COURT: All right. Then, counsel, I will order you and your client to appear then on that date and bench warrant will be issued and continued to be held to that date. Thank you, counsel.
MS. HAMBURGER: Thank you, your Honor.
THE COURT: All right. The record should reflect the presence of the Defendant with his counsel, Mr. Cochran, Mr. Neufeld, Mr. Scheck, Mr. Blasier. The People are represented by Mr. Darden and Mr. Goldberg. The jury is not present. Counsel, anything else we need to take up before we invite the jurors to join us?
MR. BLASIER: No.
THE COURT: All right. Deputy Magnera, let's have the jurors, please. And do we have a problem with that easel in the way there.
MR. FAIRTLOUGH: Yes, your Honor. I will move it straightaway.
(Brief pause.)
(The following proceedings were held in open Court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. The record should reflect that we have now been rejoined by what appears to be our jury. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: All right. Mr. Matheson, would you resume the witness stand, please.
Gregory Matheson, The witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: Good morning again, Mr. Matheson.
MR. MATHESON: Good morning.
THE COURT: You are reminded, sir, you are still under oath. And Mr. Goldberg, you may conclude your redirect examination.
MR. GOLDBERG: Thank you, your Honor.
REDIRECT EXAMINATION (RESUMED) BY MR. GOLDBERG
MR. GOLDBERG: Go morning, Mr. Matheson.
MR. MATHESON: Good morning.
MR. GOLDBERG: Good morning, ladies and gentlemen.
THE JURY: Good morning.
MR. GOLDBERG: Now, Mr. Matheson, before we get back into the blood vial again, you were asked some questions regarding reporting of EAP results in general and you said something to the effect that if it is an inclusion, in other words, if you have an EAP type B and it includes the suspect, that you will report that generally as an inclusion. Can you explain that?
MR. MATHESON: Yes, I can. As a matter of fact, it doesn't matter whether it was a suspect or victim or whatever. We are making a comparison to an individual and a stain. I made the differentiation as to whether or not I give that disclaimer about the potential degradation route of the EAP. I divide it between an inclusion versus an exclusion and the reason for that is, is as has been previously mentioned, particularly in conventional serological analysis, a result of that analysis is not conclusive, it does not say that this blood sample could have come from this person and nobody else. It is merely, you know, includes them in a certain percentage of the population that could have left a stain. And an exclusion is an absolute statement. If I am making an exclusion, I am saying this blood could not have come from that person. If the exclusion is based on an EAP b, then I have concerns with it because I am aware that it can degrade from a BA, that there is another possibility.
MR. BLASIER: I'm going to object to the narrative response.
THE COURT: State the question, counsel.
MR. GOLDBERG: Sir, why is it that you would distinguish between an exclusion and an inclusion for the purposes of this EAP B type marker?
MR. MATHESON: Well, because in the case of conventional serology it is not a definitive answer. An inclusion does not specifically say this blood came from this person and nobody else, as opposed to exclusion where it is an absolute statement. If I am saying this blood could not have come from somebody, that is my statement. It is an absolute.
MR. GOLDBERG: Okay. And sir, during the course of your years at the serology unit in the Scientific Investigations Division, have you ever had any recitation of making exclusions when that is what you see on your electrophoretogram?
MR. BLASIER: Objection, irrelevant.
THE COURT: Overruled.
MR. MATHESON: I'm not totally sure I understand. Do you mean have I hesitated making an exclusion if I see a B?
MR. GOLDBERG: No. In other words, just in general, when something is an exclusion, do you report it as an exclusion?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: Now, we were talking about the blood vial chart that the Defense used yesterday and some of the transactions involving item no. 17. Do you recall that?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: Now, I was asking you about various pipetters that are used. Did you bring to Court the type of pipetter that we were talking about that I referred to as a pipette-man, a mechanical type pipetter?
MR. MATHESON: Yes, I brought one of those.
MR. GOLDBERG: Can you show us what that looks like?
THE COURT: Mr. Fairtlough, can I get you to move this easel back about a foot.
MR. FAIRTLOUGH: Yes, your Honor.
THE COURT: We are obstructing the view of some of the jurors here.
(Brief pause.)
MR. MATHESON: Okay. This--what I'm holding in my hand happens to be a pipette-man brand, what we call a pipetter or reusable pipetter. It allows you to set the amount that you want to deliver and you draw it up into a disposal tip--
THE COURT: All right. Mr. Blasier, you are going to have to angle yourself differently here.
MR. BLASIER: I'm sorry.
MR. MATHESON: The unit is reusable because that is where you set the amount, but it has a tip on the end of it. That is what you are actually drawing the fluid into. They come in different sizes, you know, from very, very fine to this one happens to hold a maximum of one milliliter, and you depress the plunger, draw up your fluid and then press it again to deliver it. When you are done with that sample, there is another plunger on the back that releases the tip from the unit and then that is discarded.
MR. GOLDBERG: So you discard those tips instead of autoclaving them or somehow sanitizing them to reuse them?
MR. MATHESON: They are not reused.
MR. GOLDBERG: Why not? Why don't you reuse them in serology?
MR. MATHESON: Because at that point they have another sample in it. It would be inappropriate to use a previously used item like that.
MR. GOLDBERG: And with the tip, when you discard it, how do you discard it?
MR. MATHESON: Well, the mechanics of it, like I said, is there is a plunger on it. We have biological waste, things on the different lab benches, and you don't touch it or anything. It is as simple as just, you know, sticking this towards the biological waste and then releasing it, and it is disposed of.
MR. GOLDBERG: And do you calculate, when you do this procedure, the amount of blood that is left in and on the outside of the pipetter?
MR. MATHESON: No, I do not.
MR. GOLDBERG: Your Honor, could we possibly take a picture of the pipetter and introduce that as an exhibit, because I don't want to introduce the pipetter itself?
MR. BLASIER: I would object and ask that the pipetter be introduced.
MR. GOLDBERG: It is a $300.00 item so we prefer to--
THE COURT: Well, counsel, his case; his exhibit.
MR. GOLDBERG: Can we bring it over here?
(Brief pause.)
THE COURT: 300 bucks for that thing?
MR. MATHESON: Actually I think that particular model is about that or a little more. There are some cheaper, but they are quite expensive.
MR. GOLDBERG: Mr. Matheson, in the pipette tube there is what appears to be a little white stopper. Maybe that is probably not the correct terminology, but you know what I'm referring to in the end of the--in the plastic portion of the pipette tip?
MR. MATHESON: Yes. It is up towards the larger opening or where it attaches to the pipetter.
MR. GOLDBERG: What is that for?
MR. MATHESON: That is specifically in there, particularly when you are dealing with biological materials, because if you, as you are drawing the fluid up inside the tip, if you do it too quickly, the possibility exists, because you are actually forming a suction and pulling it, spraying small particles that can make their way up into the part of the pipetter yourself that you reuse, so that plug in there allows the air to pass through but does not allow any of the biological product to pass.
MR. GOLDBERG: Now, Mr. Matheson, I would like to show you next what we have previously marked as 163-F for identification, and can you hold that up so the jurors can see it and tell us what that is.
MR. MATHESON: What this is, is an example of two glass disposable pipettes that we use. One of them has somewhere along the line gotten its tip broken off, but I made reference to a type of disposable one. They are not calibrated. You don't know how much you are drawing up or how much you are delivering. You place a small rubber bulb on the top, depress the bulb, place it into the fluid and let the bulb up and it sucks up the fluid into it.
MR. GOLDBERG: Okay. So we don't actually have the bulb attachment on these particular items?
MR. MATHESON: No.
MR. GOLDBERG: And the bulb attachment I take it just creates some suction type effect in the disposable pipetter to draw the blood into the pipetter?
MR. MATHESON: That's correct.
MR. GOLDBERG: Now, did you use any of these types of disposable pipetters, the glass ones, in the work that you did in conjunction with item 17?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: And how much blood, if you are drawing a milliliter, say, is going to be filled into the pipetter?
MR. MATHESON: Very roughly probably between a third and two-thirds. I believe a milliliter would fall somewhere around in there, but I'm not totally sure of that.
MR. GOLDBERG: So you are estimating--
MR. BLASIER: Object and move to strike, no foundation.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Well, can you give us your best estimate as to where a milliliter would be in this vial and just tell us the parameters of your margin of error?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Sir, have you ever drawn a milliliter into one of these pipetters before?
MR. MATHESON: I'm sure I have approximately at some point.
MR. GOLDBERG: Okay. And when you do this routinely, do you pay very, very close attention to exactly where it is?
MR. MATHESON: No. Like I mentioned, this is not a calibrated instrument. It is just for removing some fluid and delivering it somewhere else.
MR. GOLDBERG: And when you say it is not calibrated, what do you mean by that?
MR. MATHESON: Well, there is no marks on it to indicate different volume levels. It is merely a device to transfer some fluid from point a to point b.
MR. GOLDBERG: Now, when you used this on the reference vial 17, can you give us an estimate, to the best of your abilities, as to how much of the disposable pipetter was actually occupied by blood from item 17?
MR. BLASIER: Objection, no foundation or recollection.
THE COURT: What time are we talking about? Which incident?
MR. GOLDBERG: Well, you did it on the 27th I think; is that correct?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: And can you tell us--
MR. MATHESON: I have no independent recollection of that particular moment and I don't pay attention to exactly how much is drawn each time.
MR. GOLDBERG: Okay. So we have no way of then being able to reconstruct with any high degree of accuracy exactly what that amount is?
MR. MATHESON: That's correct.
MR. GOLDBERG: Is that correct? Now, Mr. Matheson, when you perform this function, what do you do with the amount of blood that is left on the inside and outside of the disposable pipetter?
MR. MATHESON: It is discarded.
MR. GOLDBERG: And why don't you make some effort to try and recover that and return it to the blood vial?
MR. MATHESON: Well, you are going to--there is no reason to. You have a blood vial that has quite a bit of blood in it in comparison to what we eventually end up using for our testing. There is plenty left for additional ones. You use that, draw some up. You don't throw it away full or something. You use your bulb, squirt out as much as you can, and discard the rest.
MR. GOLDBERG: Now, I would like to put the pipette-man up on the elmo so that we can print this photograph. Apparently we need to do that mechanically. Do we have to lower the--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: While that is printing, can I continue to ask questions?
THE COURT: You may.
MR. GOLDBERG: Thank you.
MR. GOLDBERG: Now, Mr. Matheson, within the Scientific Investigations Division are there any type of other pipetters, other than the two that we have discussed today, which are used in taking blood from reference vials?
MR. MATHESON: Yes, there is.
MR. GOLDBERG: What is this other type?
MR. MATHESON: It is just another type of disposable pipette. It is made out of plastic rather than glass.
MR. GOLDBERG: Your Honor, when we have the picture printed, can I mark that as People's next in order? I guess it is 226.
THE CLERK: 227.
THE COURT: 227.
(Peo's 227 for id = photograph)
MR. GOLDBERG: And Mr. Matheson, would there be any problem with us introducing the actual tip of the pipette-man as an exhibit?
MR. MATHESON: No.
MR. GOLDBERG: Can we have that? Maybe we can have the tip of the pipette-man as 228.
THE COURT: All right. People's 228, the disposable pipetter.
(Peo's 228 for id = disposable pipetter)
MR. GOLDBERG: Sir, did you bring an example of this other pipetter to Court with you this morning?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: Can you show us that?
MR. MATHESON: This is a sample of one of the other type of pipetters that are used by--in our laboratory. It is--all in one unit. As opposed to the glass one which had a separate bulb on the top, this one has one built into it and it works the same way as the glass one. You squeeze the top, stick it into the fluid, let it out, release the top, draws it up inside of it and then you squeeze it again to deliver it where you want.
MR. GOLDBERG: Which division uses this? Toxicology?
MR. MATHESON: They do mainly, but it is occasionally used in serology.
MR. GOLDBERG: And in using this item to draw blood, what is the procedure in the laboratory with respect to what you do with the blood that stays on the inside or clings on the outside during the transaction?
MR. MATHESON: Well, similar to the glass disposable pipette and the disposal tips on the pipetter, once you have squeezed it and delivered as much as you can out of it, this is discarded in a biohazard waste disposal.
MR. GOLDBERG: And why isn't any further effort tried to be made to retrieve whatever is clinging to the inside and outside of the pipetter in order to return it to its vial?
MR. MATHESON: Again, it is not seen as being necessary to return every little microliter of blood that is being pulled out of a liquid blood tube.
MR. GOLDBERG: So it is just thrown away and lost forever?
MR. MATHESON: That's correct.
MR. GOLDBERG: All right. And do you have any personal knowledge with respect to the testing that was done in serology--in toxicology, I believe, on June the 20th, with respect to exactly how much blood was pipetted into one of these pipetters?
MR. MATHESON: No, I do not.
MR. GOLDBERG: And do you know how much blood remained on the inside and outside of the pipetter after that transaction was complete?
MR. MATHESON: No, I do not.
MR. GOLDBERG: So Mr. Matheson, we have no way of being able to reconstruct with precision exactly how much blood was actually tossed out during that transaction; is that true?
MR. MATHESON: That's correct.
MR. GOLDBERG: So all of these numbers that were placed on the Defense chart, were they exact numbers or approximations?
MR. MATHESON: They would all be approximations.
MR. GOLDBERG: And did any of those numbers take into account the amounts that are lost during the transactions dealing with the blood? In other words, on pipetters, on gloves, on chem wipes and the like?
MR. MATHESON: No, I don't believe they did.
MR. GOLDBERG: So the Defense chart is therefore incomplete and inaccurate; is that correct?
THE COURT: Counsel, that is an argumentative question. And which board are you referring to? Which exhibit?
MR. GOLDBERG: Referring to the exhibit that has been marked, if I can see it, as 11--
THE CLERK: 39.
THE COURT: 1139.
MR. GOLDBERG: --39.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Is the Defense board accurate?
MR. MATHESON: No, I don't believe so.
MR. GOLDBERG: Now, also, umm--well, I will get into that later. Let's start up again with the June--excuse me, the September the 30th transaction where you testified that you delivered one milliliter of blood to Mr. Ragle.
MR. MATHESON: Okay.
MR. GOLDBERG: When you said "delivered one milliliter of blood," what did you mean by that?
MR. MATHESON: That rather than just estimating, I used a pipetter, either like the one I described--like I say, we have a couple other different brands that--they work basically the same. They just look differently--used that same type of tip, set the pipetter to one milliliter and transferred that amount from the blood vial into a microcentrifuge tube that we have talked about before, the small conical plastic tube.
MR. GOLDBERG: And Mr. Matheson, could you place a one milliliter sticker on the Defense blood vial chart.
MR. MATHESON: (Witness complies.) directly above the 2.6?
MR. GOLDBERG: Yes.
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: Now, Mr. Matheson, is the one milliliter that is represented there an exact measure or an approximate?
MR. MATHESON: It is approximation.
MR. GOLDBERG: Why?
MR. MATHESON: Well, as mentioned before, even though the pipetter is set and I believe that I delivered approximately one milliliter into this microcentrifuge tube, there is going to be a small amount that is going to be lost. When you remove the cap, it is going to be clinging to the sides of the tip that is going to be discarded.
THE COURT: I think we have heard this now about six times.
MR. GOLDBERG: But we are going to go all the way up the chart, your Honor.
MR. GOLDBERG: Now, Mr. Matheson, in order for this to be accurate, therefore, shouldn't the chart reflect that it is an approximation as opposed to an exact precise figure?
MR. BLASIER: Objection, asked and answered.
THE COURT: It is argumentative as well. Sustained.
MR. GOLDBERG: Is there a symbol that you use in science when you are talking about measurements for the purposes of showing something is approximation?
MR. MATHESON: Yes, there is.
MR. GOLDBERG: And can you write that symbol on the one milliliter portion just to signify that?
MR. MATHESON: (Witness complies.)
THE COURT: Before we do that--
JUROR NO. 1492: I can't see it.
THE COURT: 1492 indicates she can't see. And Mr. Blasier, do you have any objection to the Prosecution marking on your board?
MR. GOLDBERG: I'm just going to mark my tabs. I'm not going to mark their board.
(Brief pause.)
THE COURT: 1492.
JUROR NO. 1492: Yes.
THE COURT: Thank you.
MR. MATHESON: Again, you will be marking--it is just kind of a squiggle that is an indication of approximation.
MR. GOLDBERG: Now, when the one milliliter was put on for this transaction on the Defense board, was that squiggle there?
MR. MATHESON: No, it was not.
MR. GOLDBERG: Now, I would like to direct your attention next to the date of June the 27th when you did some testing--
MR. MATHESON: Okay.
MR. GOLDBERG: --as to item 17. How much did you use? And when I say "use," I'm talking not only about what was consumed in the tests, but in total.
MR. BLASIER: Objection, asked and answered, no foundation.
THE COURT: We have asked this question already.
MR. GOLDBERG: I believe you testified it was between .5 milliliters and one milliliter is that correct?
THE COURT: Sustained. Sustained. That is leading. You have asked this question.
MR. GOLDBERG: Let's take the higher of the two sums; one milliliter. Is that an exact sum or approximation?
MR. BLASIER: Objection, assumes facts not in evidence.
THE COURT: Sustained.
MR. GOLDBERG: No, that--
THE COURT: Don't argue with me, counsel.
MR. GOLDBERG: Mr. Matheson, could you have used as much as one milliliter in total with respect to that transaction?
MR. BLASIER: Objection, calls for speculation.
THE COURT: Leading as well. Sustained.
MR. GOLDBERG: How much is the maximum amount you could have used in connection with that transaction?
MR. BLASIER: Objection, no foundation.
THE COURT: Overruled.
MR. MATHESON: Conservatively about one milliliter.
MR. GOLDBERG: Okay. Is that an exact figure or an estimate?
MR. MATHESON: It is approximation.
MR. GOLDBERG: And can you place another milliliter on the board and also place one of the squiggles on it to indicate approximation.
MR. MATHESON: (Witness complies.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: And when you use the term "conservatively," Mr. Matheson, did you mean that it could be slightly more than that or slightly less than that?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: What did you mean when you said "conservatively"?
MR. MATHESON: I believe the question was a maximum amount I could have used. I could have been a little bit higher than that which I why I said conservatively one milliliter.
MR. GOLDBERG: Could it have also been less?
MR. MATHESON: Yes.
MR. BLASIER: Objection. Move to strike, no foundation.
THE COURT: Overruled.
MR. GOLDBERG: Now, Mr. Matheson, at the time that you--there was a period of time when you spoke to Mr. Ragle about this transaction; is that correct?
MR. MATHESON: Yes, it is.
MR. GOLDBERG: At that time did you have a clear independent recollection as to exactly what you did in terms of removing blood from the vial for your testing on the 27th?
MR. MATHESON: No, I did not.
MR. GOLDBERG: And were you trying to make clear mental notes of that at the time on the 27th?
MR. MATHESON: No, I was not.
MR. GOLDBERG: Now, directing your attention next to the date of June the 25th that you testified about, on that date Mr. Yamauchi did some testing; is that correct?
MR. MATHESON: Yes, he did.
MR. GOLDBERG: And according to the records that you previously read, did he state that he used .75 or did he have one of the squiggles in his notes?
MR. MATHESON: I believe there was an approximation mark on it.
MR. GOLDBERG: Okay. Now, when the Defense put their sticker on the chart, did their sticker for that contain the approximation that Mr. Yamauchi wrote in his notes?
MR. MATHESON: No, it did not.
MR. GOLDBERG: So was the sticker from the Defense an accurate representation of what was reflected in Mr. Yamauchi's records?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained.
MR. GOLDBERG: Was the sticker correct?
MR. MATHESON: No.
MR. BLASIER: Objection, no foundation.
THE COURT: Overruled.
MR. MATHESON: As for what was written in the notes, no.
MR. GOLDBERG: Sir, could you now place a .75 sticker on the chart and give us an approximation--one of the approximation signs.
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: Your Honor, could we have permission to lower the chart a little at this time for my next set of questions, since the bottom has become slightly less relevant?
THE COURT: Slightly.
MR. GOLDBERG: Okay.
(Brief pause.)
MR. GOLDBERG: Either that or we are going to need a pole.
THE COURT: All right. How about right there.
MR. GOLDBERG: Now, with respect to the next date, June the 20th, did you place a sticker on when the Defense was questioning you for .70, to your recollection?
MR. MATHESON: Yes, I believe we did.
MR. GOLDBERG: Do you know where that number comes from?
MR. MATHESON: It was reflective of what toxicology did. I am not aware of the exact number.
MR. GOLDBERG: But did--did you find an actual record that contained that .70?
MR. MATHESON: I don't believe so, no.
MR. GOLDBERG: And do you have any personal knowledge of exactly how that .70 was arrived at?
MR. MATHESON: No, I do not.
MR. GOLDBERG: Okay. Are any of your measures that you do in the laboratory accurate to within .1 milliliters, generally?
MR. MATHESON: Any measurement?
MR. GOLDBERG: Well, measurements of blood from a vial in connection with transactions such as the ones that they do in toxicology?
MR. MATHESON: I don't believe so, no.
MR. GOLDBERG: Okay. So this .07, wherever it came from then, is not an exact figure; is that correct.
MR. BLASIER: Objection, argumentative.
THE COURT: Speculative. Sustained.
MR. GOLDBERG: Sir, based upon your understanding of the practices in toxicology, is that an exact figure as in .70000?
MR. BLASIER: Objection, calls for speculation.
THE COURT: Sustained.
MR. GOLDBERG: Sir, do you have any personal knowledge of how exact that figure is?
MR. MATHESON: No, I do not.
MR. GOLDBERG: So at this point we have no way of reconstructing or you have no way of reconstructing whether it was .7 or .8 or .9 or .5, do you?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained.
MR. GOLDBERG: Do you have any personal knowledge of whether it was any of those sums?
MR. BLASIER: Objection, asked and answered.
THE COURT: Different question. Only slightly, though.
MR. MATHESON: The--what I know about the .7 is what was discussed here in the courtroom the other day.
MR. GOLDBERG: No personal knowledge?
MR. MATHESON: That's correct.
MR. GOLDBERG: All right. Well, let's just take the .7, if we have one, and put that back up on the blood vial chart.
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: Thank you.
MR. MATHESON: And adding onto it the approximation sign.
MR. GOLDBERG: And do you have any personal knowledge as to how much would have been lost in the transaction relating to this .7 milliliters, if it was .7 milliliters?
MR. MATHESON: For just this one transaction, no, I do not.
MR. GOLDBERG: All right. Now, Mr. Matheson, going to the next date of June the 14th, according to your records that you looked at yesterday during cross-examination, did Mr. Yamauchi use one milliliter for swatching, approximately one milliliter?
MR. MATHESON: Approximately one, yes.
MR. GOLDBERG: And in his notes do you have one of the squiggles to indicate it was an approximation?
MR. MATHESON: I believe so, yes.
MR. GOLDBERG: When you placed the sticker on the Defense chart did it contain one of those squiggles that was contained in Mr. Yamauchi's notes?
MR. MATHESON: No, it did not.
MR. GOLDBERG: Was their chart correct in that regard?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained.
MR. GOLDBERG: Now, Mr. Matheson, can you now place a sticker on the chart for one milliliter and again place one of the transaction symbols on it.
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: One of the approximation symbols, rather?
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: Now, Mr. Matheson, with respect to each one of the transactions that we have just testified to and that you testified to on cross-examination, the five transactions, did you duplicate those transactions last night when you went back to the laboratory after your testimony in Court?
MR. MATHESON: I duplicated the actions that would be associated with that type of transaction as they have been described here.
MR. BLASIER: Your Honor, I'm going to object to any further testimony on this as improper--doesn't mirror the conditions that we know.
THE COURT: Called foundation, counsel.
MR. BLASIER: No foundation, sorry.
MR. GOLDBERG: This is just my first question, your Honor.
THE COURT: I know. I haven't heard anything else so I will take that as a premature objection.
MR. GOLDBERG: Now, Mr. Matheson, when you say you duplicated them, let's start with the September the 30th working our way down from bottom to top. September 30th transaction what did you do?
MR. MATHESON: What I wanted to do was reproduce the way one milliliter of blood would be removed from the vial and then placed in another microcentrifuge tube and released. So I took a pipetter, set it to one milliliter, removed the cap of the blood vial like I would using gloves and a chem wipe, lay it on the counter, used the pipetter, removed one milliliter. And rather than delivering it to something else, I delivered it back into the tube and then discarded the tip, recapped the blood vial and that was the completion of that transaction.
MR. GOLDBERG: When you started did you have a certain amount of blood in the blood vial?
MR. MATHESON: Yes. Prior to doing any of this, I, like I described earlier, placed a similar blood vial next to it that was empty, putting them on a table, adding water to it until it was--you know, to the same height, capped that one and set it aside and marked it as a starting volume.
MR. GOLDBERG: Isn't there a certain margin of error in that measuring technique as well?
MR. MATHESON: Still you are using your eye, even though you have it on a flat surface, using your eye to fill it up as close as possible to the same level, and there is a slight error associated with that.
MR. GOLDBERG: For what purpose were you doing this, by the way?
MR. MATHESON: I had really no strong idea of how much blood might be lost during the course of a number of opening and closing transactions with a blood vial and I was curious to find out if it was measurable.
MR. GOLDBERG: And have any experiments been done, to your knowledge, previously to this to try to calculate what is lost in the transactions, the various transactions associated with the blood vial?
MR. MATHESON: Not to my knowledge.
MR. GOLDBERG: Now, Mr. Matheson, after you did this replication of the transaction that--well, let me ask you a few other questions first. In terms of the transaction that you replicated as to the September the 30th transaction, what did you do with the one milliliter of blood that was pipetted out?
MR. MATHESON: I returned it back to the blood vial.
MR. GOLDBERG: You mean after you were all finished?
MR. MATHESON: Well, I didn't--what I wanted to do was capture the amount that would be used during the transfer process.
MR. GOLDBERG: I see.
MR. MATHESON: If I had taken that milliliter of blood, put it into another container and then returned at a later time or tried to measure that other container, it would have been additional error because there would have been something clinging to it that was not part of the transaction we are trying to duplicate. So I merely, like I said, removed the one milliliter, pulled the pipette out of the blood and then like I said, depressed the plunger and returned the blood to the same blood vial.
MR. GOLDBERG: What did do you with the pipette tip, your gloves and the chem wipe?
MR. MATHESON: Well, at that point I didn't change my gloves because I'm working all with the same item. The pipette tip and the chem wipe that was used to remove the cap, put it back on again at that point, was just placed into a pile in front of me and eventually made its way into a biohazard container.
MR. GOLDBERG: Okay. Now, let's go to the June the 27th transaction. What do you do to replicate the blood that you removed from the vial personally for your testing on that date?
MR. MATHESON: Well, in that case, this is the testing that I did, and like I have testified, I don't really remember whether I discarded after removing a portion of the blood to spin down for the ABO test, putting it into a microcentrifuge tube, I don't know if I discarded that complete with all the blood in it or if I made an attempt to return it back to the blood vial. Wanting to be as conservative as possible, I assumed I returned it to the blood vial. So what I did again was took the vial, removed the cap using the chem wipe and gloves, like I have described, I used one of the glass dispo pipettes because that is the type I use, inserted it into the blood vial and transferred some of that blood into a microcentrifuge tube. I then capped that tube, put it into a centrifuge to spin it down. I wanted to actually start the process of running an ABO test. And placed the dirty disposable pipette, I think I testified to before, in a test-tube that was sitting also alongside. So now it is just being held there--
MR. BLASIER: Object to the narrative response.
THE COURT: Ask another question.
MR. GOLDBERG: What did you do next?
MR. MATHESON: The tube was done centrifuging, brought it back to my work area, removed three drops of serum and three drops of cells, just as if I was running an ABO test. I then used the glass disposable pipette that I had before, sucked up as much of the blood in the centrifuge tube as I could, returned that to the blood vial, recapped the blood vial and discarded all the items that had been used during that process.
MR. GOLDBERG: Okay. Now, when you say "all the items," you mentioned a microcentrifuge tube, a disposable pipette, a test-tube and a chem wipe. Have I missed anything?
MR. MATHESON: Yes. There is one thing that I left out of that and that is a very small capillary tube that is used to deliver the small drops for the test.
MR. GOLDBERG: All right. And the capillary tube and as to those five items, what did you do with those?
MR. MATHESON: They were--again, they were just placed in a pile in front of me to be discarded.
MR. GOLDBERG: Now, with respect to the June 25th transaction, where Mr. Yamauchi, according to his notes, used approximately .75 milliliters, what did you do to replicate that?
MR. MATHESON: In that particular--
MR. BLASIER: Objection, no foundation.
THE COURT: Overruled.
MR. MATHESON: In that transaction I used a disposable pipette, rather than the calibrated one, because that is what is used in a situation like this. We are not removing an exact amount. Reopened the cap, again using the chem wipe and the gloves, removed a portion into the disposable pipette, pulled it out of the tube and then returned as much of it as I could back into the vial, recapped the vial and set it aside and then disposed of the disposable pipette.
MR. GOLDBERG: Okay. Now, let's go through all of the items that you used here that were disposed. There is a disposable pipette, a, did you say, microcentrifuge tube?
MR. MATHESON: For the June 25th?
MR. GOLDBERG: Yes.
MR. MATHESON: No, just the disposable pipette. That is it.
MR. GOLDBERG: That is the only thing?
MR. MATHESON: Yes.
MR. GOLDBERG: All right. And what did you do with the disposable pipette?
MR. MATHESON: Disposed of it. Put it on the pile of the stuff that was eventually going to get thrown away.
MR. GOLDBERG: Did that still have some blood on it or residue of blood when you put it in the disposable pile?
MR. MATHESON: It has some adhering to the inside and a little bit on the outside of the tip.
MR. GOLDBERG: Now, with respect to the June the 20th transaction in toxicology, what did you do to replicate that?
MR. MATHESON: Basically the same thing that I just described as the one that Mr. Yamauchi was involved in, but rather than using the glass disposable pipette, I used the plastic one like I had shown to you before, because that is the implement that they used.
MR. GOLDBERG: And have you worked with a plastic disposable pipettes before?
MR. MATHESON: Yes, I have.
MR. GOLDBERG: Did the plastic disposable pipettes have the same amount of blood clinging to them, after you are finished, as the glass ones?
MR. MATHESON: It is hard to tell by just looking at them, but just visually it looks like it has a little bit more, but it is not measurable.
MR. BLASIER: Objection, no foundation. Move to strike.
THE COURT: Overruled.
MR. GOLDBERG: So what were the items--did you use the chem wipe again in order to open up the vial?
MR. MATHESON: A different one, yes.
MR. GOLDBERG: Okay. And you used the disposable pipetter?
MR. MATHESON: Yes.
MR. GOLDBERG: And what else did you use?
MR. MATHESON: In that transaction that was it.
MR. GOLDBERG: What did you do with those two items?
MR. MATHESON: They were added to the pile of things that are going to be disposed of.
MR. GOLDBERG: And then, sir, did you do something to replicate the June 14th--I'm sorry, as to those two items, did they still have some blood on them when you added them to the trash pile?
MR. MATHESON: Yes, they did.
MR. GOLDBERG: Now, did you do something to replicate the June 14th transaction?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: What?
MR. MATHESON: This is very similar to the first one that was described in the fact that it was mentioned that about one milliliter was used for swatching. I used a calibrated or repeatable pipette like we showed you, the pipette-man, probably used a different brand. I again set the vial up, used the chem wipe, removed the cap, set that down on the table, used the pipetter to draw up one milliliter of blood, pulled it out of the vial and then returned what was in the pipette tip back to the vial, recapped the vial and disposed of the tip.
MR. GOLDBERG: What did you do with the chem wipe that you used for the purposes of opening up the vial?
MR. MATHESON: It was added to the pile of things to be disposed.
MR. GOLDBERG: And did both of those two items have some blood on them?
MR. MATHESON: The chem wipe and the tip, yes, they both still had some.
MR. GOLDBERG: Now, up to this point you hadn't changed your gloves; is that correct?
MR. MATHESON: That's correct.
MR. GOLDBERG: Was this--this was the last transaction that you replicated?
MR. MATHESON: Yes, it was.
MR. GOLDBERG: Although--did you actually do it in the order that I went through or did you do it in the other order?
MR. MATHESON: I did it in the reverse order.
MR. GOLDBERG: Okay. Now, Mr. Matheson, what did you do with the gloves that you were wearing?
MR. MATHESON: Well, when I was all done I removed them and added them to the pile that was going to be disposed of.
MR. GOLDBERG: So by now you had a fair pile of disposable items that you had used in replicating these various transactions that had blood on them?
MR. MATHESON: I had--yeah, I had a pile of trash in front of me.
MR. GOLDBERG: What did do you with that?
MR. MATHESON: That was gathered up and placed into a biohazard trash receptacle that we have.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: And was there some blood on each one of those disposable items that you threw away?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, as a result of this, Mr. Matheson, did you calculate how much blood was lost in the transactions, in other words, as a result of using these various things that were thrown away in the garbage?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: What?
MR. MATHESON: Well, upon completion of all of these I repeated the measurement step that I did at the beginning, taking a second empty blood vial, placing it alongside of the vial that has the blood in it, filling it to where I could see looked like the same level, and I placed the blood vial--and now I had a before--beginning and a completed two blood vials that contained equivalent amounts of water to the blood that I saw in the tube at that time.
MR. GOLDBERG: What was the difference?
MR. MATHESON: It was approximately .4 to .5 milliliters or about half a milliliter.
MR. GOLDBERG: Now, sir, with respect to that figure, is that an exact figure or is that also approximation?
MR. MATHESON: Definitely not exact; it is approximation.
MR. GOLDBERG: So if you were writing it out would you also put a squiggly in front of it?
MR. MATHESON: Yes, I would.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Now, the substance that you used for this, was it actually blood?
MR. MATHESON: Yes, it was.
MR. GOLDBERG: Now, Mr. Matheson, when you were doing these series of transactions, were you trying to be extra sloppy in order to spill as much blood as possible? I mean how were you doing it?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: How were you doing it?
MR. MATHESON: I was doing it as close to the way as I would normally do it when I'm doing case work.
MR. GOLDBERG: All right. And when you are giving this figure, are you saying that that is the amount that would always be lost in this series of transactions or just your best effort to give us an approximation?
MR. MATHESON: It is an approximation based on the tests I ran yesterday.
MR. GOLDBERG: Now, Mr. Matheson, can you put up a five milliliter item onto our board and place one of the squigglys on it to indicate that it is an approximation.
MR. MATHESON: It is a .5 milliliter.
MR. GOLDBERG: .5?
MR. MATHESON: I'm going to put the squiggly on down here. (Witness complies.)
MR. GOLDBERG: Now, Mr. Matheson, with respect to the 2.6 milliliters itself, you took that measurement, didn't you?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: And you used the method that you have previously described with filling up the vial?
MR. MATHESON: Yes.
MR. GOLDBERG: So is that an exact measure or again does that have a margin of error to it?
MR. MATHESON: It is not exact. It is an approximation.
MR. GOLDBERG: So if we wanted to make this chart correct, we should also probably have a squiggly in front of that; is that true?
MR. MATHESON: Yes.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: I don't want to write on the Defense chart, but can you just add a little squiggly on to the 2.6 milliliters.
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: Your Honor, at this time I would like to mark as People's next in order two photos. I have shown them to counsel yesterday. One is of what appears to be the blood vial and it is standing up with a person's finger on the top, as People's 2--
THE COURT: 229, I believe.
MR. GOLDBERG: --29.
(Peo's 229 for id = photograph)
MR. GOLDBERG: And as 228 a picture of what appears to be a microcentrifuge tube.
THE COURT: 230 you mean.
MR. GOLDBERG: And it is also standing up.
THE COURT: 230.
(Peo's 230 for id = photograph)
MR. GOLDBERG: I would like to place 229 on the elmo first.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: We are going to have to lower our blood vial chart again. (Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Thank you.
MR. GOLDBERG: Mr. Matheson, directing your attention to the vial that has been marked--excuse me--the photograph of the vial that has been marked 228 vial--
THE COURT: I think the photo was 229.
MR. GOLDBERG: You are right, your Honor. I'm sorry.
MR. GOLDBERG: 229. Actually it is sort of hard to tell for some reason on the elmo, but in this picture is this vial actually standing up?
MR. MATHESON: (No audible response.)
MR. GOLDBERG: Do you need to see the picture?
MR. MATHESON: No. It appears it is standing on--well, it is. It is standing on the bottom part of it with the cap on the top.
MR. GOLDBERG: Now, Mr. Matheson, was there an occasion where the blood vial was measured by someone else in your presence using a ruler?
MR. MATHESON: Yes, there was.
MR. GOLDBERG: And a note pad?
MR. MATHESON: Yes.
MR. GOLDBERG: Who did that?
MR. MATHESON: Mark Taylor.
MR. GOLDBERG: Is he a person that works for SID?
MR. MATHESON: No, he is not.
MR. GOLDBERG: Who does he work for?
MR. MATHESON: He is a criminalist that works for himself. He is a private.
MR. GOLDBERG: Was it your understanding he was retained by the Defense in this case?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, when he was measuring this, can you tell us what kind of a ruler he used?
MR. BLASIER: I would object as irrelevant.
THE COURT: Overruled.
MR. MATHESON: It is just a plastic ruler approximately 15 inches long.
MR. GOLDBERG: Why is the blood vial standing on a pad of paper?
MR. MATHESON: Well, that particular ruler, like a lot of rulers, the measurement does not start at the end, it is actually inset three-sixteenths of an inch or a quarter--if you ding up the end or knock up the end, it doesn't affect the marker or beginning point. So an attempt was made, by using the note pads, to bring it up and account for that little bit of the, ruler so the bottom of the tube was at the same height as the bottom of the ruler or the beginning mark.
MR. GOLDBERG: Mr. Matheson, doesn't that seem like an extremely inaccurate way of measuring the blood vial?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained.
MR. GOLDBERG: Is this the referable way, from a forensic standpoint, to measure the blood vial?
MR. MATHESON: It is not the way--
MR. BLASIER: Objection. Move to strike the testimony.
THE COURT: Overruled.
MR. MATHESON: It was not my choice to do it that way. I preferred the equivalent amount of water.
MR. GOLDBERG: Now, Mr. Matheson, when you actually did your own measurement using the technique of equivalent amounts of water, did you actually have as to stand the blood vial up similar as is depicted in this photograph?
MR. MATHESON: Yes, I did.
MR. GOLDBERG: And when you measured that did you take into account the amount of blood that is clinging to the inside of the vial?
MR. MATHESON: No. I was measuring the amount that had collected in the bottom.
MR. GOLDBERG: And if you look at the top of this vial there appears to be something a little less than--hold on for a second.
(Brief pause.)
MR. GOLDBERG: --a quarter of a--looks like it is a little less than a quarter of an inch or approximately a quarter of an inch of blood that is stuck up toward the top of the vial?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: Well, sir, how much--let me take a look at the photograph. Maybe I can show the witness the photograph because it is hard to tell on the elmo. May I approach for a second?
THE COURT: You may.
(Brief pause.)
THE COURT: I think that is the centimeter scale.
MR. GOLDBERG: You are right.
MR. GOLDBERG: Can you tell us how much the measure is or the approximate measure is of blood that is up toward the top of the vial?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Is there a ruler right next to it?
MR. MATHESON: Yes, there is.
MR. GOLDBERG: And using the ruler, can you tell us approximately how much blood you can see in the darkened area at the top of the vial?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Well, when you saw the vial was there blood that was stuck up at the top of the vial?
MR. MATHESON: Normally there is. I don't remember if there was on this particular instant.
MR. GOLDBERG: Okay.
MR. BLASIER: Objection. Move to strike, nonresponsive.
THE COURT: Overruled.
MR. GOLDBERG: Why is there blood stuck up at the top of the vial? How does it get there?
MR. MATHESON: Well, many times--well, usually when the blood vial is being stored it is in an envelope. A lot of times it is upright, sometimes it could be upside down or falling on its side. The blood comes in contact with all parts of the inside of the tube and some of it is going to adhere up around the stopper.
MR. GOLDBERG: And did you do your measurement of the 2.6 milliliters after the mark Taylor measurement, to your recall?
MR. MATHESON: I don't remember. I believe it was before.
MR. GOLDBERG: All right. Now, with respect to--
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Do you know whether there was any more removal of blood between the Mark Taylor measurement and your measurement?
MR. MATHESON: Not to my knowledge, no.
MR. GOLDBERG: When you measured the vial, did you take into account any blood that was up around the top of the vial?
MR. MATHESON: All I did was measure the part that had settled down in the bottom of the vial.
MR. GOLDBERG: And Mr. Matheson, are you willing to come to any estimate as to how much blood in this particular picture is at the top of the vial on the inside?
MR. MATHESON: No, I am not.
MR. GOLDBERG: And is that because you have never made any scientific inquiry to try to find that out?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: Why aren't you willing to estimate?
MR. MATHESON: Because I'm not even sure how we would go about measuring that. It adheres to the vial or the cap when you pull it off the cap. It may adhere to the cap it may go down the side. I don't think you could do a good measurement of that.
MR. GOLDBERG: As a forensic scientist testifying in Court under oath, would you be prepared to give what would just constitute a guesstimate of that amount?
MR. MATHESON: Not of that amount, no.
MR. GOLDBERG: Now, I would next like to show you the microcentrifuge tube, the photograph of which I have marked as 230 for identification. Sir, before I ask you about this, other than the incident in Court the other day where you were handed a vial of water that purported to contain eight milliliters, and poured it out and saw that it actually measured 7.5--was it 7.5?
MR. MATHESON: That is what I measured when I poured it, yes.
MR. GOLDBERG: Other than that, have you ever tried to make any inquiry as to how much blood will stick to the inside of a vial?
MR. MATHESON: No, I have not.
MR. GOLDBERG: Now, with respect to the microcentrifuge tube, when you looked at the microcentrifuge tube did you attempt to measure the amounts of blood that are stuck to the interior portion of the vial or where the blood line itself is and also the portion up near the cap?
MR. MATHESON: No, I did not. I just measure the amount that settled towards the bottom.
MR. GOLDBERG: And again, as a forensic scientist, would you be willing to give us any estimation as to that amount?
MR. MATHESON: The amount that wasn't measured?
MR. GOLDBERG: Right.
MR. MATHESON: No, I would not.
MR. GOLDBERG: Is that for the same reasons that you testified to previously with respect to the blood vial itself?
MR. MATHESON: Yes.
MR. GOLDBERG: So there is some unknown amount in both vials that you did not measure; is that correct?
MR. MATHESON: That's correct.
MR. GOLDBERG: And in order to represent the unknown amount, can you just place the little white item that is in front of you onto the Defense blood vial chart.
MR. MATHESON: (Witness complies.)
MR. GOLDBERG: Maybe we can put the blood vial chart back up.
(Brief pause.)
MR. GOLDBERG: Your Honor, perhaps we could pass around a picture of the vial and the microcentrifuge tube, because they are a little bit difficult to see on the elmo.
THE COURT: 229 and 230?
MR. GOLDBERG: Yes.
THE COURT: All right. Hand them to juror no. 1, please.
(The exhibits were passed amongst the jury.)
THE COURT: All right. Mr. Goldberg, would you collect 229 and 230 from Deputy Russell.
(Brief pause.)
MR. GOLDBERG: Now, Mr. Matheson, on the chart as it exists right now, we have 1, 2, 3, 4, 5, 6, 7 numbers and all of those are estimations; is that correct?
MR. MATHESON: Yes.
MR. GOLDBERG: So would it be fair to suggest that the total number of estimations that we have we know to be completely accurate?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: What can you say with respect to the accuracy of the total number of these estimations?
MR. MATHESON: I'm not sure what you mean by the accuracy of estimations.
THE COURT: I think you are talking about the precision of measuring.
MR. MATHESON: Well, that they are all estimations. It is give or take a little bit of blood. We don't know exactly how much was used in each of those instances.
MR. GOLDBERG: And do you agree, Mr. Matheson, that to try to reconstruct and account for every tenth of a milliliter of blood, or even quarter or half of a milliliter, would be a hard thing to do?
MR. BLASIER: Objection, leading.
THE COURT: Sustained.
MR. GOLDBERG: How hard would it be to try to go back and account for every half milliliter of blood?
MR. MATHESON: I think it would be a very difficult thing to do, to try and--even if you were from the beginning trying to account for every little bit, there are aspects of this that are very difficult to measure and it would be hard to account for every portion of blood that is used in this type of testing.
MR. GOLDBERG: And in any past case that you are aware of has SID ever attempted to do that, to account for every half milliliter of blood in a test-tube?
MR. MATHESON: No, we have not.
MR. GOLDBERG: And why not?
THE COURT: I think we have asked this question before. Why don't we move on.
MR. GOLDBERG: Okay. Thank you.
MR. GOLDBERG: Now, Mr. Matheson, understanding that these numbers that you've provided are estimations, can you calculate the total estimated amount of blood on this chart under these--under these conditions?
MR. BLASIER: Objection, asked and answered.
THE COURT: Overruled.
MR. GOLDBERG: If you have a calculator, you can use that, too. It might be faster.
MR. MATHESON: (Witness complies.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. MATHESON: Well, the final figure that I come up with--
MR. BLASIER: Your Honor, object to the question; no foundation.
THE COURT: Overruled.
MR. MATHESON: The final figure that I have by adding up the numbers that we have up there is approximately 7.5 milliliters.
MR. GOLDBERG: Okay. And Mr. Matheson, there is then, in addition to that amount of blood that is occupied by what we have on this diagram, is the white space which you have not provided us any number for; is that correct?
MR. MATHESON: That's correct.
MR. GOLDBERG: So under our estimation we have approximately 7.5 plus this unknown amount?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, Mr. Matheson, I want you to assume, hypothetically, that at the time that the blood vial was drawn that there was an estimation between 6.5 and 7 milliliters of blood being in the vial, or to keep the math simple, let's assume it was 7 milliliters of blood.
MR. BLASIER: Objection, assumes fact not in evidence, improper hypothetical.
THE COURT: Sustained.
MR. GOLDBERG: It was the same hypothetical they gave, your Honor.
THE COURT: No, different hypothetical.
MR. GOLDBERG: Sir, if you were to assume for the sake of this hypothetical that at the time the blood was drawn there were 7 milliliters of blood--
THE COURT: Let me see counsel at the side bar with the reporter.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. What is the basis of your--the good faith offer that was given by the Defense for their hypothetical was the testimony from the preliminary hearing. What is your good faith offer of proof that you have a 6.5 or 7?
MR. GOLDBERG: My good faith offer of proof is two-fold. No. 1, that as I provided to the Defense in discovery, and as I stated on the record, Mr. Peratis has since said that after testifying at the preliminary hearing he went through and tried to reconstruct what he did and he did not take precise measurements at the time that he did this. He did measure it at all, which the Defense and that he now estimates that it was between 6.5 and 7 milliliters of blood from the Defendant that he drew and I'm taking the upper number.
THE COURT: All right. Did you provide that report to the Defense?
MR. GOLDBERG: I provided them with my--my own notation to that effect some time ago.
THE COURT: Is there a report that it is to this--
MR. GOLDBERG: My report that I gave to them. That is about a sentence or two long, but yes.
MR. BLASIER: Well, I would object--
(Discussion held off the record between Defense counsel.)
MR. BLASIER: It is contrary to his testimony under oath and they could have called them. They had him on their witness list.
THE COURT: We are going to see them because all of this is subject to a motion to strike as far as the blood is concerned.
MR. GOLDBERG: Do you think if the Prosecution minds if there is a motion to strike as to the amounts in the vial? It was our position that this never should have happened to begin with because of the errors and inaccuracies in all of these figures, as your Honor knows.
MR. BLASIER: Well, the way he testified at the preliminary hearing he was positive it was between 7.9 and 8.1. He was extremely precise at that. That is what he does for a living.
MR. GOLDBERG: He has never measured it in his entire career.
THE COURT: I want to know if he has a good faith basis to form this hypothetical. That is all I'm interested in at this points.
MR. GOLDBERG: Thank you.
THE COURT: All right. The objection is overruled.
(The following proceedings were held in open court:)
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Sir, your own margin of error, you said in visually approximating what is in a blood vial, just visually, was upwards of 1.8 milliliters. 1.8 milliliters or more did you say?
MR. MATHESON: In the particular instance that we mentioned when I estimated to begin with, I was 1.8 off, yes.
MR. GOLDBERG: Now, let's assume hypothetically that the blood vial in this case had 7 milliliters at the time that it started out at the scientific investigations--at the time that it was drawn. Would that mean that under our hypothetical of the set of numbers that we came up with that there would be approximately .55 milliliters of blood too much?
MR. MATHESON: Approximately a half a milliliter, .5, yes.
MR. GOLDBERG: Well, Mr. Matheson, when you go back to the laboratory, are you going to launch an investigation to determine whether someone added more of the Defendant's blood to the vial?
THE COURT: Sustained. Sustained.
MR. GOLDBERG: Now, Mr. Matheson, you were asked about EDTA yesterday. Do you remember that?
MR. MATHESON: Yes.
MR. GOLDBERG: And is the blood vial in this case that was used to contain Mr. Simpson's blood in fact an EDTA vial?
MR. MATHESON: Yes, it is.
MR. GOLDBERG: And it is your understanding that that is an anticoagulant; is that correct?
MR. MATHESON: Yes.
MR. GOLDBERG: Now, is it also your understanding, Mr. Matheson, that this anticoagulant is one that can be tested for?
MR. MATHESON: As I mentioned, the fact that it is a chemical, there are instruments available. I would assume they can test for it.
MR. GOLDBERG: And did you cause the blood vial to be sent to the FBI along with items 13, the socks, and the items from the rear gate, for the purposes of EDTA testing?
MR. MATHESON: I don't believe I was directly involved with it, but it was sent.
MR. BLASIER: Objection, move to strike; no foundation.
THE COURT: Do you have any personal knowledge of that being done?
MR. MATHESON: As far as having physically--I have seen records to that effect.
THE COURT: All right. The jury is to disregard the last question and answer.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: And is it your understanding, Mr. Matheson, when you were--is it your understanding that if blood were taken from an EDTA vial and planted somewhere, you should be able to find it?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained.
MR. GOLDBERG: Now, Mr. Matheson, when you testified as to the People's evidence disposition summary, did that reflect a transaction where certain items were sent to the FBI for purposes of EDTA testing?
MR. BLASIER: Objection, no foundation; asked and answered.
THE COURT: Sustained.
MR. GOLDBERG: Now, Mr. Matheson, have you heard that according to the report of the EDTA testing--
MR. BLASIER: Objection.
THE COURT: Sustained.
MR. GOLDBERG: Mr. Matheson, hypothetically, if the FBI testing showed that there was no--
MR. BLASIER: Objection.
THE COURT: Sustained, sustained.
MR. GOLDBERG: EDTA--
THE COURT: Sustained. Sustained. Ladies and gentlemen, you are to completely disregard that last series of questions and answers regarding EDTA.
MR. GOLDBERG: Can we approach on that, your Honor?
THE COURT: No, you may not. Proceed.
MR. GOLDBERG: Sir, are you aware of any evidence of EDTA in item 13, 15, 16 or 17?
MR. BLASIER: Okay.
THE COURT: Overruled. Did you do any testing on that yourself? Yes or no?
MR. MATHESON: No, I did not.
THE COURT: Next question.
MR. GOLDBERG: May I have one moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Now, sir, do you recall answering a question on cross-examination, a hypothetical question involving if there were EDTA on the socks and the rear gate what effect that that would have?
MR. MATHESON: Yes, I believe so.
MR. GOLDBERG: Do you know what the basis for that hypothetical was?
MR. BLASIER: Objection, no foundation, calls for speculation.
THE COURT: Any others? Sustained.
MR. GOLDBERG: Are you aware of any facts that constituted the basis of that hypothetical?
MR. BLASIER: Objection, no foundation.
THE COURT: Sustained. It is not a proper question regarding hypothetical.
MR. GOLDBERG: Sir, if the facts of their hypothetical were changed so as to indicate that the testing revealed the absence of EDTA--
MR. BLASIER: Objection.
THE COURT: Sustained. Ladies and gentlemen of the jury, we are going to take a recess, brief recess right now. Please remember all of my admonitions to you. I'm sure you have taken them to heart. Take a recess for fifteen minutes as far as the jury is concerned. Mr. Matheson, you can step down.
(At 10:15 A.M. the jury was excused and the following proceedings were held in open court:)
THE COURT: All right. Let's have it quiet, please. Mr. Goldberg, I'm sustaining the objections because this is not the witness to testify to EDTA testing.
MR. GOLDBERG: Well, I agree with that, your Honor, and I agree that it would have been appropriate to have sustained the objections to the questions that I asked. But I also believe that the objections to the questions that they asked exactly along this line, and the hypothetical they gave exactly along this line where they stated that there was no EDTA and if there was no EDTA would that indicate that it came from the blood vial and the witness answered yes, should have been sustained and they weren't. And under the doctrine that we have discussed before of curative admissibility and the open-the-door issue, and this isn't even open the door, I objected to them. My objections were overruled. The People should be allowed to go into this. The jury should not be left with the impression that there is a factual basis and a good faith basis for counsel's questions when they know that they are contrary to the testing that was performed by the FBI. And if the Court would like, we can go and try and find the exact questions, and there were a series of them, that were asked by the Defense in the record.
THE COURT: Mr. Blasier.
MR. BLASIER: We strenuously object. Mr. Goldberg just acknowledged that he asked questions that he knew were improper, and every time even does he turned to face the jury, and you can tell from the first three words that they were improper and he knows they were improper and he is experienced enough to know that. We object to that. The hypotheticals we objected, you overruled the objections, and we were allowed to ask the hypothetical. You have sustained all these questions. We would ask that some appropriate sanction be imposed because he continues to ask these questions.
THE COURT: Mr. Goldberg, any response? I am concerned about your admission that you knew that those questions were improper.
MR. GOLDBERG: Your Honor, wait a minute. I have always tried to be very candid with the Court, and in instances such as the staple issue, I told the Court exactly what I was thinking. It would be intellectually dishonest for me to say that giving a hypothetical to a witness of facts relating to testing that he doesn't know of would be a proper hypothetical question, but the Court also knows that I have disagreed about a lot of the hypothetical questions that have been given by the Defense and by both sides. And what I am saying is that the Court apparently has a different view than I do as to the propriety of certain hypothetical questions, and I am practicing law in this Court under your Honor's rules. And if the Court allowed, and you did allow them, to ask what now Mr. Blasier is by implication admitting he knew to be improper, because he asked the same series of questions that I did, with one distinction, and that is that he knew that there was no good faith basis for his questions, and he knew that they were contrary to the testimony that is eventually going to be introduced, then I believe under the rules as your Honor has set them forth--and your Honor does have discretion on this. I'm not saying the Court is wrong.
THE COURT: Wide discretion.
MR. GOLDBERG: Wide discretion. If the Court has--has found in the proper exercise of its discretion that they can ask the question, then I can ask the question. That does not mean that I personally, as an advocate, think that either side should have been allowed to ask, but it means under the rules that have been imposed here by your Honor using the discretion that is inherent with this court, that I believe that that was a proper question with respect to the rules that have previously been made on that issue.
THE COURT: The problem I have with your hypothetical, Mr. Goldberg, is that they bring in as hearsay EDTA testing results. That is the problem.
MR. GOLDBERG: But the way I phrased my--my--some of them may have been phrased--
THE COURT: But the only EDTA question that appears to be proper in this line of question is how much is the standard amount of EDTA in one of these vacutainers and how much would that add to the blood volume in this case, but apparently nobody wants to ask. That is the only obvious question that this jury is interested in hearing. And I don't know if you are watching the jury at all, but they are rolling their eyes every time we get to the fifth or sixth question that has been reasked and asked again, and this dueling hypothetical questions is really argument at this point, counsel.
MR. GOLDBERG: Your Honor, if the Court were going to strike--
THE COURT: We are in recess.
MR. GOLDBERG: Thank you.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record. All parties are again present. Mr. Goldberg, you've reviewed some of the items that Mr. Blasier has presented?
MR. GOLDBERG: Yes, your Honor. Your Honor, I did want to apologize on the record for the spirited nature of my comments this morning.
THE COURT: Mr. Goldberg, there's no need to do that.
MR. GOLDBERG: Thank you. I did find the transcript references to the Defense hypotheticals. I don't know whether the Court wanted to take a look at those or entertain the possibility of the People asking any questions at all on the subject of EDTA.
THE COURT: Well, let's take up the issue I want to talk about first.
MR. GOLDBERG: Okay. As to the items that counsel now wants to show the Defense, many of these are beyond the scope of this witness' direct testimony and redirect testimony and are also perhaps beyond the scope of his expertise. Evidently, in the a-1 portion of the chart, if the Court has a copy in front of it, and 2-B, what's being depicted there are DQ-alpha results, in other words, DNA results, and showing patterns of inheritance with DNA results. We haven't gone into that at all. In fact, I never mentioned patterns of inheritance at all. The only time that that was gone into is on cross-examination from Mr. Blasier, and I did not even mention it directly, indirectly, in any other way during recross. So it's beyond the scope of his expertise and--
THE COURT: All right. 1-A and 1-B, let's take these up one at a--
MR. GOLDBERG: 3-C appears to be a statement of the cathodal to anodal pattern of degradation that's suggested by Mr. Saferstein and Sensabaugh. I didn't show this to Mr. Matheson. So I'm not positive whether this is correct because I didn't know whether I was allowed to. But it's possible that I might not have an objection to that because it could be a correct statement or a correct block diagram depicting--
THE COURT: It appears to be an accurate description as described in the testimony.
MR. GOLDBERG: That's my feeling.
THE COURT: All right.
MR. GOLDBERG: 4-D appears to be containing an issue that should be gone into with the DNA witnesses. What is trying to be depicted here is that EAP would be found in red blood cells whereas the cells containing the DNA do not contain EAP. This is something that can be explored elsewhere. I did not mention it in any way during my redirect examination. It's beyond the scope. It's beyond the scope of the witness' expertise.
THE COURT: 5-E?
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. GOLDBERG: Okay. This is dealing with DNA results and the like. So again, same objections. Code of ethics, I don't know what the suggestion is here that Mr. Matheson has violated the code of ethics. I don't see anything inconsistent of course with his testimony, and it appears to be argumentative and also, it's hearsay under 721. So I would object to the usage of those provisions. And that it might also necessitate bringing out other provisions of the code of ethics dealing with the reporting of inconclusive results and showing that his reporting of the inconclusive results is in fact consistent with the code of ethics. So it opens up a whole new area that we haven't gone into. As I understand it, your Honor, the remaining items here are simply larger versions of what we've already gone over.
THE COURT: All right. Mr. Blasier.
MR. BLASIER: Your Honor, as to a and b, Mr. Goldberg asked on redirect--and I asked the court reporter to provide me with a copy of this. They don't have the full transcript yet. So this is probably not the page number that's going to be on the full transcript. But the question was asked: "Now, when you were testifying on cross-examination, at one point, you said that biological contamination, in other words, contamination of one type of blood with another type of blood would not change the type of the blood that was contaminated? What did you mean? "Answer: Well, you're not going to--the type of blood isn't going to change. It will still be what it always was. That's the nature of the genetic markers that we deal with as a rule. So by introducing another one, it will not change it. It may overpower it or it may degrade it or something else like that, but it will not change it." these two charts are demon--are--I want to ask him questions about that answer and to demonstrate that half of the answer is inaccurate, that you can have it overpowered or degraded like he testified and have a different type show up. Chart number c--
THE COURT: How do these two charts demonstrate that?
MR. BLASIER: Well, he's already testified about, you get one allele from mom, one allele from dad. We talked about it in the context of EAP and DQ-alpha as well. So you know what the type of the child is by what type of the parent is. And I'm going to ask him some questions about if you mix some blood from person a and person B together, you're going to get a type that's a combination of both of those, which is different from the type of either one of him.
THE COURT: So you're suggesting in these charts that these mixtures are actually mixtures of bodily fluids?
MR. BLASIER: Yes. Blood.
THE COURT: All right.
MR. BLASIER: And chart no. 3-C is--that's simply the degradation chart with--that's exactly what he testified to that Saferstein says, is there's one other route of degradation that would give you just the higher B band. The red blood cell chart, that's just straight science. I'm sure Mr. Matheson knows that EAP is found in red blood cells that don't have any DNA. Chart no. 5--
THE COURT: What's the relevance of this?
MR. BLASIER: Well, because--the relevance is, you can't--you can do all sorts of other tests other than EAP and you're never going to be able to rule out that the EAP came from someone who was a B. The other tests won't allow you to do that. You have to--the only way to do that is to retest the EAP. And chart no. 5 is simply to show that if you have fingernail scrapings, they are going to contain material obviously from the person whose fingernails they are, including skin cells--the fingers are made up of cells, the fingernails are made up of cells, and they contain DNA. And you can--
THE COURT: So this is the same argument, that EAP is separate from DNA testing.
MR. BLASIER: Yeah, similar. And then the two code of ethics provisions I provided yesterday.
THE COURT: All right. The objections will be overruled. All right. Let's--I'm sorry.
MR. GOLDBERG: Can I respond to those?
THE COURT: I heard the arguments.
MR. GOLDBERG: What about the issue that the Court--
THE COURT: All right. As to the hypothetical questions, you want to direct my attention, Mr. Goldberg, to the location in the transcript?
MR. GOLDBERG: I'm looking at page 51.
THE COURT: Which volume?
MR. GOLDBERG: Well, it's yesterday's transcript. I don't have a volume number.
THE COURT: Mrs. Robertson, would you tell Miss Olson I need the transcript, please.
MR. DARDEN: Your Honor, while you're waiting, it doesn't appear that you're going to get to the next two witnesses this morning. May I release them? One? Two? Anybody.
THE COURT: Yeah, I would say that's a fair guess.
MR. DARDEN: Thank you.
THE COURT: And, Mr. Goldberg, you want to direct my attention to which one we're talking about?
MR. GOLDBERG: I'm looking at line 21 on page 55.
THE COURT: Page 55?
MR. GOLDBERG: Where--do you want--does the Court want me to read it or--
THE COURT: Why don't you read it to me.
MR. GOLDBERG: "Mr. Blasier: Hypothetically, Mr. Matheson, if blood from this case from an evidence item such as from the back gate showed the presence of a chemical EDTA, would you agree that it is consistent with it possibly coming from a reference vial?" then there's an objection: "That's an improper hypothetical. It's inconsistent with the known facts. "Overruled. "Witness: As you stated it, if it was present and if it was able to be identified in it, it is possible that it could have come from some type of reference sample that previously contained EDTA."
THE COURT: So you want to ask the hypothetical assuming the same facts except no EDTA is found?
MR. GOLDBERG: Yes. And then there was actually a second hypothetical which I also objected to in a similar vein.
MR. BLASIER: And I would object to that hypothetical for lack of foundation, the foundation being that testing can only determine whether something--can only detect something that's there. If they get no results on a test, that doesn't mean it's not there. If he modifies it to that extent, then I have no problem with it.
THE COURT: All right. But Mr.--what's the good faith basis of your offer, Mr. Goldberg, that there's no EDTA in--
MR. GOLDBERG: The good faith basis of my offer is that in reading the FBI report, that's what it says. That is what the verbal description of their testing says.
THE COURT: The verbal--
MR. GOLDBERG: The written description of the testing.
THE COURT: Okay.
MR. GOLDBERG: I'm sorry, your Honor.
THE COURT: Okay. I will allow that one hypothetical question as phrased. All right.
MR. GOLDBERG: Okay. I'll phrase it almost identically to what the Defense did except "not," having the words "not."
THE COURT: All right.
MR. BLASIER: And for the record, I'm prepared to state what my good faith basis for asking that question was. And that is that our experts have looked at the FBI results and have said it is present.
THE COURT: No. I assumed, given the nature of our discussions and the other things that have gone on, that you had a good faith basis for asking that.
MR. BLASIER: Yes.
THE COURT: I didn't ask for that.
MR. BLASIER: I'm sorry.
THE COURT: Okay. Thank you for providing that to me, but I didn't need it.
MR. GOLDBERG: Your Honor, we have a discovery issue that just arose a few seconds ago.
THE COURT: That appears to be so too. But let's take that up after we finish with the jury this morning.
MR. GOLDBERG: Thank you. I just--okay.
THE COURT: Sort of peeked my interest as well. All right. Deputy Magnera, let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Mr. Matheson, would you--where did Mr. Matheson go? Deputy Russell, I need Mr. Matheson, please.
DEPUTY RUSSELL: Yes, your Honor.
THE COURT: All right.
(Brief pause.)
THE COURT: All right. Mr. Matheson, would you resume the witness stand, please. All right. Mr. Goldberg, you may conclude your redirect.
MR. GOLDBERG: Thank you.
MR. GOLDBERG: Were you trying to run out on us, Mr. Matheson?
MR. MATHESON: No. I was standing right in front of the door.
MR. GOLDBERG: Mr. Matheson, I just want to ask you, hypothetically, if blood from this case--excuse me. Hypothetically, if blood from this case from an evidence item such as from the back gate showed no presence of a chemical EDTA, would you agree that that is inconsistent with it possibly coming from the reference vial?
MR. MATHESON: Yes, I would.
MR. GOLDBERG: Thank you very much, Mr. Matheson. Thank you, ladies and gentlemen.
THE COURT: All right.
MR. GOLDBERG: No other questions.
THE COURT: Mr. Blasier.
MR. BLASIER: Thank you, your Honor.
RECROSS-EXAMINATION BY MR. BLASIER
MR. BLASIER: Now, Mr. Matheson, would you agree that tests that are performed to determine whether something is present or not can only determine that if there's a certain amount of something present? In other words, if there's something less than the sensitivity of the test, you won't detect it, correct?
MR. GOLDBERG: Vague, improper hypothetical.
THE COURT: Overruled.
MR. MATHESON: Yes. If it's below the detectability limit of that test, you won't see it.
MR. BLASIER: So something--it could be present, but your test won't show it?
MR. MATHESON: If it's below that level, yes.
MR. BLASIER: I would like to have--
MR. GOLDBERG: Well, your Honor, I'm sorry. I'm sorry, Mr. Blasier. Is it possible for us to document in some way the way that the vial appears now before counsel--
MR. FAIRTLOUGH: Your Honor, it's already been done.
MR. GOLDBERG: Oh, it's been done. I'm sorry.
MR. BLASIER: Mr. Matheson, you were asked a number of questions about an experiment that you performed last night. Do you recall that?
MR. MATHESON: Yes.
MR. BLASIER: Now, when you performed that experiment, did you videotape or take any photographs of what you were doing?
MR. MATHESON: No, I did not. I was the only one left in the lab.
MR. BLASIER: Did you invite anybody from the Defense to observe?
MR. MATHESON: No, I did not.
MR. BLASIER: And a lot of the numbers that you've used for purposes of your demonstration are numbers based on your guess as to how someone else may have done withdrawals at particular times, correct?
MR. GOLDBERG: Misstates the evidence.
THE COURT: Sustained. Rephrase the question.
MR. BLASIER: You had no personal knowledge of how a number of the withdrawals that you testified about were actually done, correct?
MR. MATHESON: Personal--personal knowledge, because I was involved with at least two of them. The other ones, no.
MR. BLASIER: Now, when we visited the lab in January, Mr. Taylor did his measurements with a ruler. Do you recall that?
MR. MATHESON: Yes, I do.
MR. BLASIER: That was after you had done your precise measurement of 2.6 milliliters, wasn't it?
MR. MATHESON: It was after I did my measurement, yes.
MR. BLASIER: Were you asked any questions at all by me or Mr. Goldberg about any measurement that resulted from a photograph of the ruler?
MR. MATHESON: No.
MR. BLASIER: When we were in the lab, were we permitted to open up the blood and take the blood out?
MR. MATHESON: No, you were not.
MR. BLASIER: Now, you testified previously that your records indicate that as of June 20th, according to toxicology, there is 5.5 milliliters in that tube, correct?
MR. MATHESON: That--that's what was in on that form, yes.
MR. BLASIER: And that's as of June 20th. At that time, there had only been one withdrawal from that blood vial that we know about, correct, from the records?
MR. MATHESON: That's correct.
MR. BLASIER: And assuming again hypothetically that you started with eight, Mr. Yamauchi indicated that approximately one milliliter was taken out for typing, correct?
MR. MATHESON: Yes.
MR. BLASIER: Incidentally, you don't need nearly one milliliter to do the kind of typing you did, do you?
MR. MATHESON: The kind of typing who did?
MR. BLASIER: Mr. Yamauchi did on the 14th.
MR. GOLDBERG: Not relevant, beyond the scope.
THE COURT: Overruled.
MR. MATHESON: Well, actually, I believe the reference was that he used a milliliter for swatching, not just for his testing.
MR. BLASIER: Okay. Now, for the type of swatching that he did, do you need a milliliter or do you actually use a lot less?
MR. GOLDBERG: Calls for speculation.
MR. BLASIER: If you know.
MR. MATHESON: Well, my understanding is, you use a milliliter for those fitzco cards, the ones that we demonstrated before.
MR. BLASIER: Okay. Now, would you agree that under the hypothetical, as of June 20th, there is 1.5 milliliters, Mr. Simpson's blood, that according to your records and assuming my hypothetical of starting with eight, that are not there at that point?
MR. GOLDBERG: Argumentative, asked and answered.
THE COURT: Overruled.
MR. MATHESON: With all the assumptions in place, yes, it would be approximately 1.5.
MR. BLASIER: And as of that date, there's only been one pipetter that went into that tube according to the records, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And did you--in the course of your experiment, did you determine how much you would have lost by putting a pipetter in one time to determine how much of that 1.5 milliliters would have been used up that way?
MR. MATHESON: No, I didn't. Just the aggregate of all the ones.
MR. BLASIER: Certainly it would be an extremely small amount; would you agree?
MR. MATHESON: It would be small, yes.
MR. BLASIER: Would you also agree that the pipetters that are used--well, let me ask you this. How much do the pipetters that you've demonstrated to us hold?
MR. GOLDBERG: No foundation.
THE COURT: Overruled.
MR. MATHESON: Which pipetters are we talking about?
MR. BLASIER: Well, do you know what kind of pipetter Mr. Yamauchi used?
MR. MATHESON: For his one milliliter?
MR. BLASIER: Yes.
MR. MATHESON: No, I do not.
MR. BLASIER: The $300 pipetter that you showed us this morning has a plastic tip on it, correct?
MR. MATHESON: Yes, it does.
MR. BLASIER: And do you know who manufactures that plastic tip?
MR. MATHESON: No. It's called an art tip, a-r-t, but I don't know--I can't think of the manufacturer right now.
MR. BLASIER: Are you aware that some plastic tips have a coating on it to prevent liquids from adhering to them?
MR. GOLDBERG: Assumes facts not in evidence.
THE COURT: Overruled.
MR. MATHESON: I don't know if they're specifically coated with anything, no.
MR. BLASIER: But are you aware that plastic tips don't have--don't--that blood or other fluids don't adhere to plastic tips as they might to glass?
MR. GOLDBERG: Assumes facts not in evidence.
THE COURT: Overruled. Do you know that?
MR. MATHESON: I would say it depends on the plastic, it depends on the glass.
MR. BLASIER: Now, the--using the $300 pipetter, how much does that plastic tip hold?
MR. MATHESON: Well, the pipetter that I demonstrated here is a 1,000 microliter or one ml capacity. When you draw it up, there's a little space on top of it. So--but you don't want to--I mean, that's your maximum, is one milliliter, but it could hold a little more.
MR. BLASIER: And the--the little plastic one with the bulb built into the top, how much does that hold?
MR. MATHESON: I don't know.
MR. BLASIER: Is that--is there a marking on there to indicate one milliliter?
MR. MATHESON: I can take a look at the one we have and see if it says something on it.
MR. BLASIER: Okay.
MR. MATHESON: No, I don't see any markings on it at all.
MR. BLASIER: Now, the dispo--the glass one that doesn't have the bulb on it, does that have any markings on it?
MR. MATHESON: No.
MR. BLASIER: Would you agree that a trained forensic scientist who intended to draw one milliliter out of a blood vial would know the difference between one milliliter and two and a half milliliters?
MR. GOLDBERG: Calls for speculation.
THE COURT: Overruled.
MR. MATHESON: Yes, I would think so.
MR. BLASIER: Now, you indicated that when you take the tops off of these purple top vials, a lot of times you get blood that comes out of them, correct?
MR. MATHESON: Well, I think I mentioned that there's some adhering to the cap, and when you remove it, some of the times, that gets transferred onto the chem-wipe.
MR. BLASIER: And are you aware of what's known as an aerosol effect?
MR. GOLDBERG: Goes beyond the scope of redirect--recross.
THE COURT: Overruled.
MR. MATHESON: Yes, I am.
MR. BLASIER: What is that?
MR. MATHESON: Well, it's when you, you know, apply some force or something with the liquid, it forces it out in very small droplets.
MR. BLASIER: In almost like a spray if you had a spray bottle of something?
MR. MATHESON: Yeah. That's an aerosol effect too. You're taking, squirting a spray bottle and putting it into the air.
MR. BLASIER: And that blood would have DNA in it, correct?
MR. GOLDBERG: Beyond the scope.
THE COURT: Overruled.
MR. MATHESON: The blood that is aerosolized?
MR. BLASIER: Yes.
MR. MATHESON: Yes.
MR. BLASIER: And you use the term in your redirect examination "splattering," correct? Do you remember using that term?
MR. MATHESON: Blood spatter, yes.
MR. BLASIER: No. I think it was splattering.
THE COURT: In what context, counsel?
MR. BLASIER: In terms of when you opened the tube, having blood come off of the top.
THE COURT: I think he's already described that.
MR. BLASIER: Okay.
MR. BLASIER: Now, when we were at the lab in January, Mr. Taylor, myself and several others, we asked you specific questions about the withdrawals from this reference tube, didn't we?
MR. MATHESON: I believe so, yes.
MR. BLASIER: And you told us that when you did your withdrawal on the 27th, you put what you didn't use back, correct?
MR. GOLDBERG: Asked and answered.
THE COURT: Overruled. I assume this is foundational for something else.
MR. BLASIER: Yes.
MR. MATHESON: Yes, I did, but I believe I probably qualified it with, you know, to the best of my knowledge or something like that.
MR. BLASIER: Do you remember doing that? Do you remember putting any qualifications on it at all?
MR. MATHESON: No, but I normally do if I don't have very specific memory of something.
MR. BLASIER: Was your recollection better in January than it is today as to whether you put the blood back?
MR. GOLDBERG: Assumes facts not in evidence, that he had a recollection of it.
THE COURT: Rephrase the question.
MR. BLASIER: You wouldn't have told us that you put it back if that wasn't your recollection, would you?
MR. GOLDBERG: Assumes facts not in evidence.
THE COURT: It's argumentative the way it's phrased.
MR. BLASIER: When you talked to us, did you tell us to the best of your knowledge what you had done with the blood that you used?
MR. GOLDBERG: Asked and answered already.
THE COURT: Overruled.
MR. MATHESON: Yes, I did.
MR. BLASIER: Now, do you recall us having a discussion about how much was used in toxicology and where that .70 figure came from?
MR. MATHESON: Are we talking about in court or--
MR. BLASIER: No. I'm sorry. In January.
MR. MATHESON: No, I do not.
MR. BLASIER: Now, the micro centrifuge tube, that's the tube that went to toxicology, correct?
MR. MATHESON: I believe it's the one that was prepared by them.
MR. BLASIER: And that holds a maximum of 1.5, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And by your measurements, when it got back and got put back in the envelope, it had .8 left, didn't it?
MR. MATHESON: I believe so, yes.
MR. BLASIER: And that would indicate, would it not, that .7 was no longer there?
MR. MATHESON: That's correct.
MR. BLASIER: Do you remember a discussion at that same meeting--incidentally, Mr. Yamauchi was present as well, wasn't he?
MR. MATHESON: He might have been. He was involved in a number of those.
MR. BLASIER: And do you recall a discussion at that time that involved him about how much he actually withdrew on the 27th?
MR. GOLDBERG: Calls for hearsay.
MR. BLASIER: I'm sorry. The 25th.
THE COURT: Sustained.
MR. BLASIER: Do you recall during that meeting taking any issue with anything that Mr. Yamauchi said about what he had done?
MR. GOLDBERG: Still calls for hearsay, not relevant.
THE COURT: Overruled.
MR. MATHESON: I don't have any specific recollection of that.
MR. BLASIER: Now, what does the term "examiner bias" mean?
MR. GOLDBERG: Not relevant.
THE COURT: Overruled.
MR. MATHESON: Well, my understanding of that would be is that "examiner" being the person that's doing the work, I can have a certain bias or slant or, you know, something along that line that exists within him.
MR. BLASIER: Is it another way of stating that, that sometimes an examiner might come to the conclusion that he thinks he's supposed to come to, not necessarily fraudulently or--but just because you know the result and you tend to see what you think is supposed to be there? Do you understand what I just said?
MR. MATHESON: Not really, no.
MR. BLASIER: I don't think I did either. Doesn't that mean that your preconceived idea of what the test results should be has been shown by studies to possibly affect the result that you actually see?
MR. GOLDBERG: Beyond the scope of this witness' expertise.
THE COURT: Sustained the way that's phrased.
MR. BLASIER: Well, tell us what you mean by the term "examiner bias."
MR. MATHESON: Well, if a person has a bias, then they have a preconceived notion or a leaning towards one particular idea or something.
MR. BLASIER: And one of the techniques--and I think you testified about this--in terms of how much information you know versus not having any information, is to read test results in a blind sense where you don't know anything else about the rest of the case, so you don't have any preconceived idea what the answer is supposed to be, correct?
MR. MATHESON: That's correct.
MR. BLASIER: Now, you remember the cranberry juice we talked about, Mr. Goldberg asked you about a little while ago?
MR. MATHESON: Yes, I do.
MR. BLASIER: And I represented to you when we did that little experiment that there was--it started with eight milliliters, correct?
MR. MATHESON: Yes, you did.
MR. BLASIER: Now, when you look at a tube--we measured that in a little graduated container, correct?
MR. MATHESON: Yes.
MR. BLASIER: And you recognize that as the type of container that you use if you want to measure quantities or one of the types, correct?
MR. MATHESON: It's one of the types available, yes.
MR. BLASIER: And when you pour something in there and you hold it up and you estimate how much is in there, you look at the liquid and you compare it to the markings on the tube, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And when you looked at that, did you take your measurement from--well, withdraw. When liquid is in a tube like that, a relatively small tube, it tends to bow down in the middle, doesn't it?
MR. MATHESON: Yes, it does.
MR. BLASIER: So if you take a measurement from the bottom of the bow, it's going to be different from the top of the bow, isn't it?
THE COURT: Are you talking about the meniscus?
MR. BLASIER: Meniscus.
MR. MATHESON: Yes, if you take it from the top. You're supposed to take it from the bottom of the meniscus.
MR. BLASIER: Now, if I indicated to you hypothetically that when I measured the eight, I took it from the top, that would have been an incorrect way to measure it?
MR. GOLDBERG: Well, your Honor, that's improper.
THE COURT: Sustained.
MR. BLASIER: You would get a difference if you measure it from the top versus the bottom?
MR. MATHESON: Of the meniscus, yes.
MR. BLASIER: Okay. Now, I want to ask you a couple questions about security at the lab. Now, the computer printouts that you identified and testified to on redirect only include lists of employees who may have entered those rooms by presenting their id card, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And anybody who initially enters that unit that may have somebody else with them when they go in, that second person is not going to show up on any record anywhere, correct?
MR. MATHESON: That's correct.
MR. BLASIER: In fact, the times that we've been out there where you've shown us that room, our names don't appear on any computer printout as a result of going into that room, correct?
MR. MATHESON: Right, because you're not issued a card.
MR. BLASIER: And that particular--and--for instance, on the morning of June 14th, if Detective Lange was in that room, he doesn't show up on any printout either, does he?
MR. GOLDBERG: Improper hypothetical.
THE COURT: Overruled.
MR. MATHESON: No, his name wouldn't show up. He doesn't have a security card for our facility.
MR. BLASIER: Incidentally, the detectives that you work with in robbery-homicide, for instance, they know where the evidence processing room is, don't they?
MR. MATHESON: I don't think all of them would. Ones that have been in our facility would.
MR. BLASIER: And when you dry the blood swatches, they're always dried in that cabinet up on the wall, aren't they?
MR. MATHESON: That's our designated drying spot, yes.
MR. BLASIER: And the records that you testified to only show when a door is opened, correct?
MR. MATHESON: Actually, it only shows when somebody displays their card. It reads the card, then it unlocks it.
MR. BLASIER: Now, does--is any record--is there any record in the computer when somebody who is inside the room goes out?
MR. MATHESON: No, there's not.
MR. BLASIER: So those records, there's no way you can tell from those records how long people who went in at a particular time stayed there?
MR. GOLDBERG: This has been asked and answered.
THE COURT: Overruled.
MR. MATHESON: That's correct.
MR. BLASIER: Now, the garage door that we've been referring to, the roll-up door, does that require any kind of card entry from the outside?
MR. GOLDBERG: Assumes it can be opened from the outside.
THE COURT: Overruled.
MR. MATHESON: That door does not require a card to open it up, no.
MR. BLASIER: So if that door were opened, there would be no record, no computer record of who might have gone in that door or who might have gone out of it?
MR. MATHESON: Well, to open that door, we would have a record of who was in the evidence processing room because that's where you open it from. Once it was opened, no, then we would not have a record of it.
MR. BLASIER: Well, let's assume--I'm sorry. Were you done?
MR. MATHESON: Yes.
MR. BLASIER: Let's assume that you have Mr. Fung come into the evidence processing room with somebody with him. Now, that entry would show up and it would show up as Mr. Fung, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And then the door is open and Mr. Fung leaves, but the second person stays. There would be no record that the second person was in there alone, would there?
MR. GOLDBERG: Improper hypothetical.
THE COURT: Overruled.
MR. MATHESON: That's correct.
MR. BLASIER: Now, the documents that you testified to are only authorized entries into that room, correct?
MR. MATHESON: Yes.
MR. BLASIER: If somebody was able to get into that room who was unauthorized without triggering the computer system, there would be no record of that, correct?
MR. MATHESON: Not on that printout, no.
MR. BLASIER: Now, you also indicated on redirect that--you were asked some questions about evidence possibly being moved from a crime scene. Do you recall that, in terms of whether there's full documentation by taking pictures?
MR. MATHESON: Oh, as to whether or not it had been moved from its original location prior to collection?
MR. BLASIER: Correct.
MR. MATHESON: Yes, I do.
MR. BLASIER: And you recall stating that as long as you had a picture of it before it was moved and a picture of it after, then that would be sufficient documentation for you?
MR. GOLDBERG: Misstates the evidence.
THE COURT: Sustained.
MR. BLASIER: Well, do you recall making a statement about the fact that if you had a picture of it in its original position and a picture of it later when it may have been moved, that that in your view was sufficient documentation of that item?
MR. MATHESON: It's sufficient documentation of the fact that it had moved, yes.
MR. BLASIER: Tells you nothing about what was done with it between the first picture and the second picture, does it?
MR. MATHESON: That's correct.
MR. BLASIER: Tells nothing about whether someone picked it up, took it someplace, held it and then put it back, does it?
MR. GOLDBERG: Argumentative.
THE COURT: Sustained.
MR. BLASIER: Now, you were asked some questions on redirect about the blanket. And do you recall testifying that you wouldn't have collected that, and one of the reasons being that it appeared to have just the victim's blood on it? Remember saying that?
MR. GOLDBERG: Misstates the testimony.
THE COURT: Sustained. It's incomplete.
MR. BLASIER: Do you recall the reasons why--tell us the reasons that you told us yesterday as to why you wouldn't have collected that blanket.
MR. GOLDBERG: Still misstates the testimony.
THE COURT: Overruled.
MR. MATHESON: Well, I believe I said I probably wouldn't. You know, it depends. There is some variation in how we work when we're out in the field, and I think--the reasons that come to mind is that it is an item that was brought into the scene after the fact, it was not present when the crime occurred and that, you know, if you're visually looking at it and it is very heavily blood-stained, having being placed--having known to be placed over the victim, the assumption is that the majority of the blood on there is going to be from the victim and it is not--does not have a lot of evidentiary value associated with it.
MR. BLASIER: Now, let's assume hypothetically that there were drops of blood on the victim's shoulder area from some source other than the victim and a blanket was put over the top of that. Could that blood transfer to the blanket?
MR. GOLDBERG: Assumes facts not in evidence. Improper hypothetical.
THE COURT: It's a hypothetical question. Overruled.
MR. MATHESON: If that blood is damp, yes, it could transfer to the blanket.
MR. BLASIER: So under that hypothetical, that blanket, if that indeed happened, could have contained the blood of someone other than the victim?
MR. MATHESON: Given the hypothetical, yes.
MR. BLASIER: Now, you were asked some questions on redirect about getting to the crime scene before the Coroner. Do you recall those?
MR. MATHESON: I believe there was some--yes. About when the Coroner should be called and the bodies removed.
MR. BLASIER: Now, you also were asked some questions about whether it's preferable to process a crime scene during daylight hours or during nighttime hours, correct?
MR. MATHESON: Yes.
MR. BLASIER: Do you have any information indicating that the reason the detectives did not call CID or SID for seven hours had anything to do with processing the crime scene in daylight hours versus nighttime hours?
MR. GOLDBERG: Argumentative. Calls for hearsay.
THE COURT: Calls for speculation.
MR. BLASIER: Now, I think you indicated that at some point, detectives may decide to process a crime scene themselves?
MR. MATHESON: Yes, that does occur.
MR. BLASIER: Including making swatches?
MR. MATHESON: Yes.
MR. GOLDBERG: Misstates the testimony as to making swatches.
THE COURT: Overruled.
MR. BLASIER: Including logging evidence?
MR. MATHESON: Yes.
MR. BLASIER: Do you have any information indicating that the detectives that were at the Bundy scene between approximately 12:00 and when SID arrived later that morning processed any evidence that they recorded?
MR. GOLDBERG: Misstates the testimony, your Honor.
THE COURT: Overruled.
MR. GOLDBERG: 12:00?
THE COURT: The jurors know what time--the time sequence. Any evidence of that to your knowledge?
MR. MATHESON: Not that I can recall at this moment.
THE COURT: All right.
MR. BLASIER: Now, you were also asked on redirect examination if you had seen any evidence or indication of evidence being tampered in this case. Remember being asked that?
MR. MATHESON: Yes.
MR. BLASIER: Now, would you agree that by your testimony, you don't know how many swatches were collected, so you can not tell us if the number of swatches that are in the evidence now is the same number as the number of swatches collected originally?
MR. GOLDBERG: Asked and answered, argumentative, beyond the scope.
THE COURT: Overruled.
MR. MATHESON: That's correct.
MR. BLASIER: Now, you learned at some point that Andrea Mazzola's initials were not on many of the bindles that relate to the blood drops that were collected?
MR. GOLDBERG: Calls for hearsay, vague as to "many," beyond the scope.
THE COURT: Overruled.
MR. BLASIER: You became aware of that; did you not?
MR. MATHESON: I believe so, yes.
MR. BLASIER: In fact, you became aware that her initials didn't appear on any of the bindles, correct?
MR. GOLDBERG: Misstates the testimony.
THE COURT: Overruled. Were you aware of that?
MR. MATHESON: That they didn't appear on any of them?
THE COURT: Yes.
MR. MATHESON: Not as I'm remembering right now.
MR. BLASIER: And would you agree that--well, you were also aware of Andrea Mazzola's testified--or testimony at the so-called split hearing in August I believe?
MR. GOLDBERG: Not relevant.
THE COURT: Sustained.
MR. BLASIER: You indicated you were asked some questions about contamination and an article by Bruce Budowle of the FBI. Do you recall those questions?
MR. MATHESON: Yes, I do.
MR. BLASIER: And do you recall making a statement yesterday in redirect to the effect that contamination becomes a problem if it's occurring and you don't know it's happening?
MR. GOLDBERG: Misstates the testimony.
THE COURT: Overruled.
MR. MATHESON: Yeah. In use of the word "problem," because contamination does occur, if it's going on, you don't know about it, that is a problem.
MR. BLASIER: And if it's going on and you don't know about it, you have no way of knowing how it might affect test results, do you?
MR. MATHESON: If I don't know about it, that's correct.
MR. BLASIER: So if it--if there was evidence in your laboratory of persistent contamination that you were unaware of, would you agree that would be a serious problem?
MR. GOLDBERG: Improper hypothetical, argumentative. It's also logically impossible.
THE COURT: Overruled.
MR. BLASIER: Would you agree that would be a serious problem?
MR. MATHESON: If there was something going on that we had no idea it was going on?
MR. BLASIER: Contamination.
MR. MATHESON: Given that assumption, that something like that could happen, that would be a problem.
MR. BLASIER: Now, you were asked some questions about the computer system and the fact that it's password protected. Do you remember that?
MR. MATHESON: Yes, I do.
MR. BLASIER: And a password is a secret word that you're given if you're allowed to have access to a computer so that you can actually get at the work foray, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And what that means is, if you don't have that word, you can sit there and punch buttons all day, and you're not going to be able to get into the computer, correct?
MR. MATHESON: That's correct.
MR. BLASIER: Now, that particular protection that you described wasn't in effect for any of the evidence in this case until the 16th of June, correct?
MR. GOLDBERG: Vague. Overbroad.
THE COURT: Overruled. I think we're already established the date that these things were entered into the computer, correct?
MR. BLASIER: Correct.
THE COURT: All right.
MR. BLASIER: Your Honor, could we take down that exhibit and--
MR. BLASIER: Mr. Matheson, do you recall yesterday, you were asked about biological contamination in the context of whether having one sample contaminated with biological fluid from another sample could cause the first sample to change type? Remember that?
MR. MATHESON: Yes. I think we've talked about it a couple times.
MR. BLASIER: And you said that that can't happen?
MR. MATHESON: In actually changing the type?
MR. BLASIER: Yes.
MR. MATHESON: That's my understanding, yes.
MR. BLASIER: Now, when you're talking about actually changing the type, let me shift that just a little bit and ask you the same question about being able to detect--well, let me rephrase that. The only way we have of knowing what a type is is by the test, correct?
MR. MATHESON: That's correct.
MR. BLASIER: Now, is it your testimony that if you have a biological sample from one person and another biological sample is added to that from a second person, that the results of the test would never change?
MR. MATHESON: No, I did not say that.
MR. BLASIER: Now, could we have slide--can we have--I need a number for the slide presentation.
THE COURT: Defense next in order?
THE CLERK: 1143.
MR. BLASIER: 1143?
THE COURT: 1143-A.
(Deft's 1143 for id = slide)
MR. BLASIER: Now, Mr. Matheson, remember yesterday we were talking about that you get--genetic markers come from our parents, don't they?
MR. MATHESON: Yes.
MR. BLASIER: And we talked in the context of the EAP system, of there being A's, B's and C's and you get one of those from each parent, correct?
MR. MATHESON: That's correct.
MR. BLASIER: Same thing is true with other genetic markers that are looked at in DNA testing and other conventional serology testing, correct?
MR. MATHESON: Yes. The concept's the same.
MR. BLASIER: Each marker system has its own universe if you will of possible alleles they're called within that marker, correct?
MR. GOLDBERG: Beyond the scope, your Honor.
THE COURT: Overruled.
MR. BLASIER: Correct?
MR. MATHESON: That's correct.
MR. BLASIER: And one of the marker systems that you--in fact you look at in your lab is called the DQ-alpha marker which is--that just identifies a particular part of the DNA that's looked at, correct?
MR. MATHESON: Yes, that's true.
MR. BLASIER: And that's a primary test that your lab performs, isn't it?
MR. MATHESON: That's one of a couple tests, yes.
MR. BLASIER: And two of the alleles that happen to be in that system are called 1.1 and 1.2, aren't they?
MR. MATHESON: Yes.
MR. BLASIER: It's kind of the equivalent of the A's and B's and C's, correct?
MR. GOLDBERG: This is beyond the scope, your Honor.
THE COURT: Overruled. But move it along, Mr. Blasier. This is just to make a point.
MR. BLASIER: Yes. Correct.
THE COURT: All right. Let's get there.
MR. MATHESON: That's a designation, yes.
MR. BLASIER: Now, if you inherit that 1.1 from your mother and 1.1 from your father, then you're going to be a 1.1, correct?
MR. GOLDBERG: Beyond the scope.
THE COURT: Overruled.
MR. MATHESON: Yes.
MR. BLASIER: And correspondingly, if person B up there inherits a 1.2 from mom, a 1.2 from dad, that person is going to be a 1.2, correct?
MR. MATHESON: Yes.
MR. BLASIER: Now, if you take a little bit of blood from a and a little bit of blood from B and mix it together and run a test on it, you're going to get a type 1.1, 1.2, correct?
MR. GOLDBERG: Vague as to "little bit."
THE COURT: Overruled.
MR. MATHESON: Depending on the concentrations of each, yes, you're going to see those two.
MR. BLASIER: So assume they're approximately the same.
MR. MATHESON: That's what the test would read then, yes.
MR. BLASIER: And the 1.1, 1.2 type is different from either of the two types that went into it, correct?
MR. MATHESON: When taken together, that's correct.
MR. BLASIER: Now, would you agree that that is an example of where you could have a mixture of blood from two people that would type differently from either one that's in it?
MR. MATHESON: It would change the result you see, yes. Not the type of either one of them.
MR. BLASIER: But all we have is the results, correct?
MR. MATHESON: That's correct.
MR. GOLDBERG: Argumentative.
THE COURT: Overruled.
MR. BLASIER: Now, you also indicated yesterday that the nature of the genetic markers that you deal with, one marker might--I think the term you used was--overpower or one might degrade, correct?
MR. GOLDBERG: Beyond the scope. That wasn't on redirect.
MR. BLASIER: Yes, it was.
THE COURT: Overruled.
MR. MATHESON: I'm sorry. Could you repeat that?
MR. BLASIER: Yeah. Let me--let me read your question and answer from yesterday and see if this refreshes your memory or let me show it to you.
MR. GOLDBERG: It's irrelevant whether he can remember his testimony from yesterday.
THE COURT: Overruled.
(Brief pause.)
MR. MATHESON: Yes.
MR. BLASIER: Do you recall that yesterday?
MR. MATHESON: Yes.
MR. BLASIER: And the concept you were talking about there was, if you have this mixture that we've been talking about, if you've got part of the mixture as either degraded or that you only got a little bit, it may be overpowered by the other component, correct?
MR. GOLDBERG: Asked and answered, beyond the scope.
THE COURT: Overruled.
MR. MATHESON: Yes.
MR. BLASIER: Now, in my example, my hypothetical up there, would you agree that if person number a had been--that sample had been degraded or it was only a small sample and person number B had a lot there and you mix them together and did a test, person number B might overwhelm person number a, correct?
MR. GOLDBERG: Asked and answered.
THE COURT: Overruled.
MR. MATHESON: Yes, that's possible.
MR. BLASIER: And--
MR. BLASIER: Have that slide, please, slide b.
MR. BLASIER: Would you agree that that--in my hypothetical, that would result in your final test of this mixture showing person b, but not person a?
MR. MATHESON: Assuming that the quantity of B was sufficiently high, yes, that could occur.
MR. BLASIER: Now, let's assume hypothetically that the blood from person a is put on a swatch and is put in a--while still damp in a plastic bag, is put in a truck in the middle of June for a period of time. Would you agree that that could cause that to start degrading?
MR. MATHESON: Well, I think, like I mentioned before, as soon as blood leaves the body, degradation begins.
MR. BLASIER: Okay. And the degradation simply means the little pieces of DNA are kind of breaking up and you lose the ability to detect them, correct?
MR. GOLDBERG: Beyond the scope, your Honor.
THE COURT: Sustained.
MR. BLASIER: And if hypothetically, blood from person B gets put on that swatch later on after a has started to break down, then you might get the hypothetical that's up on the projector?
MR. GOLDBERG: Beyond the scope.
THE COURT: It's an improper hypothetical. Sustained.
MR. BLASIER: Now, Mr. Matheson, I want to ask you a couple questions about the EAP testimony that you gave on redirect. Do you recall Mr. Goldberg asked you specific questions about the articles that I had referred you to? Do you remember that?
MR. MATHESON: Yes, I do.
MR. BLASIER: Now, let me ask you first of all, the only article that you referred to on direct was the Zajac, Grunbaum and Crim article, correct?
MR. GOLDBERG: That's irrelevant, your Honor.
THE COURT: Overruled.
MR. MATHESON: That was the only one presented to me, yes.
MR. BLASIER: Now, let me show you that article. When's the last--have you read that recently?
MR. MATHESON: I've read this and--yes. It's been within the last several days.
MR. BLASIER: And you've given testimony on redirect about the manner of degradation of an EAP; have you not?
MR. MATHESON: Yes, I have.
MR. BLASIER: I'm sorry. Of a BA.
MR. MATHESON: That's correct.
MR. BLASIER: Would you agree that that particular article that you referred to, nowhere in it talks about how a BA degrades in terms of what happens to the bands, does it?
MR. MATHESON: Did you ask whether or not it makes any reference to any form of specific type of degradation?
MR. BLASIER: No. My question is, it doesn't tell you which bands you lose in what order when you degrade a BA, does it?
MR. MATHESON: No, it does not.
MR. BLASIER: Can we have slide c.
THE COURT: C.
MR. BLASIER: Now, you recall yesterday we had a slide similar to this to illustrate the path of degradation of a BA down to a b, correct?
MR. MATHESON: It had similarities to this, yes.
MR. BLASIER: Now, one article that you were shown by or asked about by Mr. Goldberg on redirect was the Yeshion article. Remember that?
MR. MATHESON: Yes.
MR. BLASIER: And you testified that article said nothing about the manner in which a BA degrades in terms of which bands disappear first. Remember that?
MR. GOLDBERG: That misstates the testimony.
THE COURT: Rephrase the question.
MR. BLASIER: Do you recall testifying that that article did not describe the path of degradation of a BA?
MR. GOLDBERG: No. Misstates the testimony.
THE COURT: Overruled.
MR. MATHESON: My understanding of the article is that I believe it describes a different--the focus of the article is a different degradation, the B to a CB or something like that.
MR. BLASIER: Okay. Let me show you that article and ask you to read the first paragraph under "discussion."
MR. MATHESON: Okay. Under discussion, it says, "several studies--"
THE COURT: Just read it to yourself.
MR. MATHESON: Oh, I'm sorry.
(The witness complies.)
MR. MATHESON: Okay.
MR. BLASIER: Now, that article does describe the path of degradation in terms of which bands disappear first, doesn't it?
MR. MATHESON: It does have a two-line reference to it, yes.
MR. BLASIER: And it--and it--it refers to that as being an analysis of other literature on the topic, correct?
MR. MATHESON: It references several studies, yes.
MR. BLASIER: And it says that all of those studies describe the path of degradation the way I did on my cross-examination with you, correct?
MR. MATHESON: Yes, it does.
MR. BLASIER: Not the way you described it, correct?
MR. GOLDBERG: Well, Mr. Matheson did describe it in one way.
THE COURT: Sustained.
MR. BLASIER: Not the way you described it as a result--as leading to two B bands, correct?
MR. MATHESON: That's correct.
MR. BLASIER: Now, you were asked a question about the book that you had referred to, the Saferstein book. Do you recall that?
MR. MATHESON: Yes, I do.
MR. BLASIER: And the chapter of that book that you were referring to is actually written by Dr. Sensabaugh, correct?
MR. MATHESON: Yes, I believe we mentioned that.
MR. BLASIER: And he--I'm sorry. And he's the same author that--of the article that I provided to you during cross-examination, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And that article, the portion that you read from that article describes one other possible path of degradation for a BA, correct?
MR. MATHESON: I think gave indication of that, yes.
MR. BLASIER: And could you read again the--starting at the "thus" which you started--which you read yesterday and read down to where it says "two."
MR. MATHESON: Where it says what?
MR. BLASIER: Where--the next sentence where it starts with "two."
MR. MATHESON: Oh, okay. Am I reading this one out loud?
MR. BLASIER: Sure.
MR. MATHESON: "Thus one might expect the a bands in BA and CA types to be lost before the B or C bands are lost. And this in fact has been observed." that's the end of the sentence.
MR. BLASIER: Read the next sentence.
MR. MATHESON: "In typing aged type BA bloodstains, for example, only the major B band," and then in parenthesis, "The anodal B band may be apparent and the temptation would be to type the sample as a B type."
MR. BLASIER: And would you agree that what that says is that you might also get a path of degradation that leads you to just seeing the b-2 band and nothing else?
MR. MATHESON: Yes.
MR. BLASIER: And then the next part of that says what?
MR. MATHESON: "Since it has been observed that in aged BA bloodstains, the slow B band is generally lost before the fast a band, the controlling rule is to withhold judgment on a punitive B type until both B bands are apparent. If the sample is in fact a BA type, the major a band should be apparent by that time."
MR. BLASIER: Would you agree that what that says is that if you have both B bands, b-2 and b-2, that that cannot be a degraded BA?
MR. MATHESON: No. I believe it says things like "generally" and "should." it's not an absolute.
MR. BLASIER: Can you cite me to a single scientific reference that says that a BA can degrade to the point where you have two B bands and nothing else?
MR. MATHESON: No, I can not.
MR. BLASIER: Could we go to slide d, please?
MR. BLASIER: Now, the EAP test measures an enzyme in the blood, correct?
MR. MATHESON: Yes, it does.
MR. BLASIER: And it's an enzyme that's found in red blood cells, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And our blood is made up of red blood cells and other types of cells, correct?
MR. GOLDBERG: Beyond the scope.
THE COURT: Overruled.
MR. MATHESON: Yes.
MR. BLASIER: And there is no DNA in a red blood cell, correct?
MR. MATHESON: That's correct.
MR. BLASIER: The DNA or DNA is found in cells other than red blood cells, correct?
MR. MATHESON: Yes.
MR. BLASIER: So if you're doing a DNA test on a biological fluid that contains a lot of cells, you're only looking at what's in cells other than red blood cells, correct?
MR. MATHESON: For the DNA, yes.
MR. BLASIER: Can we go to slide e?
MR. BLASIER: Now, Mr. Matheson, you--would you agree that our hands and fingernails are made up of cells?
MR. MATHESON: Yes, they are.
MR. BLASIER: And would you agree that if you took scrapings from under a person's fingernails, you would expect their DNA to be in it, wouldn't you?
MR. MATHESON: Their own DNA?
MR. BLASIER: Yes.
MR. MATHESON: If you scraped and picked up some of their skin or blood or whatever happened to be under there.
MR. BLASIER: And if you did that kind of a scraping where you got cellular material from under the fingernails, if you didn't find the person's DNA, that would be unusual, wouldn't it?
MR. GOLDBERG: Beyond the scope.
THE COURT: Overruled.
MR. MATHESON: Well, I haven't done DNA typing under fingernails. So I don't know if it would be unusual or not.
MR. BLASIER: Now, you could also, could you not--let's assume hypothetically that you have a person with fingernails that scratches somebody else who has an EAP type B. Have that hypothetical in mind?
MR. MATHESON: Yes.
MR. BLASIER: And a small amount of that--a person's B who has an EAP type B gets under the fingernails of person A. You with me so far?
MR. MATHESON: Think so.
MR. BLASIER: And you took scrapings from under the fingernails and did a series of tests on them, would you agree that when you do the EAP test, you're going to detect the EAP type B from the person who was scratched, correct?
MR. MATHESON: If there's sufficient blood present. It--excuse me. The detectability limit of the test.
MR. BLASIER: Now, would you also agree that if you had a greater amount of material, cellular material from person a and you did a DNA test, that you would detect the DNA of person a in that mixture, wouldn't you?
MR. MATHESON: If there's sufficient amount, yes.
MR. BLASIER: And if the amount of DNA from person a overwhelmed the amount of DNA that might have come from the small amount of blood from person b, you'd never see person b, would you?
MR. GOLDBERG: Beyond the scope. It's getting into DNA.
THE COURT: Overruled. Do you understand the question?
MR. MATHESON: Yes. If the quantity of DNA provided by the tissue that was scraped was significantly higher than the or sufficiently higher than the blood providing the EAP, then yes.
MR. BLASIER: And would you agree that you can do as many DNA tests as you want on that mixture and you're never going to be able to prove that person B isn't there?
THE COURT: Sustained. Sustained.
MR. GOLDBERG: I would ask that the jury be admonished to disregard the import of that question.
THE COURT: They know that when I sustain an objection, that's the rule.
MR. BLASIER: Now, Mr. Matheson, you talked about your control study that you used item 42 for, correct? Remember that?
MR. MATHESON: Well, I'm saying we did type item no. 42, yes.
MR. BLASIER: And I think you indicated that according to the article by Dr. Budowle, that for that kind of control study to have any value at all, the sample that you're comparing it to has to have been subjected to the same myriad of environmental insults I think is the way you described it, correct?
MR. GOLDBERG: Misstates the testimony.
THE COURT: Overruled.
MR. MATHESON: I believe on reading that, it made reference to the fact that a blood sample collected from an area where the victim is that's known to be the victim's blood would tend to be involved in the same environmental conditions.
MR. BLASIER: But if your control sample, in this case, 42 that you testified to about was subjected to different environmental conditions, then the fingernail samples--your control makes no sense. It doesn't work that way, does it?
MR. GOLDBERG: It's argumentative. It states facts not in evidence.
THE COURT: Sustained. Rephrase the question.
MR. BLASIER: In my example, the control is not a proper control, is it, if it's not--if that sample is subjected to different conditions than the one you're comparing it to?
MR. GOLDBERG: Vague as to "proper control."
THE COURT: Overruled.
MR. MATHESON: Well, it still is going to provide information. It is blood that you know to come from a particular person. If the environmental conditions are not exactly the same, then that is something that might be considered.
MR. BLASIER: Now, you were asked some questions on redirect about wet stains versus dry stains. Remember that?
MR. MATHESON: I think there was some mention of it regarding the studies, yes.
MR. BLASIER: Incidentally, is there a single reference in the literature or a single study that you can point to that says that the degradation pattern of a wet stain is going to be different than a dry stain?
MR. MATHESON: Not that I can recall at the moment.
MR. BLASIER: Now, would you also agree that 84, the fingernails in this case, there were two samples, one from one hand, one from the other, correct?
MR. MATHESON: That's correct.
MR. BLASIER: And one of those samples appear to be damp because you can see the transfer of material onto the container it was put in, correct?
MR. MATHESON: Yes.
MR. BLASIER: The other one was dry, wasn't it?
MR. MATHESON: Well, the other one appeared to be drier. It had chunks of blood down the bottom, but the tip of the stick was a little damp. So--or a little red, which may indicate that it had a little bit of dampness in it. But there was a difference.
MR. BLASIER: There was a difference in the condition of those two samples, wasn't there?
MR. GOLDBERG: Well, vague and overbroad as to the conditions. Calls for speculation.
THE COURT: Sustained. Sustained.
MR. BLASIER: Would you agree that if your theory--if your testimony about a control study is accurate, it would only apply to samples that had the same condition, similar condition?
MR. GOLDBERG: Vague as to similar.
THE COURT: Overruled.
MR. MATHESON: I think that has to be taken into consideration, but there's still information that can be obtained.
MR. BLASIER: Uh-huh. Now, I would like to show on the elmo the--I'm not sure what exhibit this is. This is the one that the Prosecution did where they printed out with the arrows on it. Do you remember yesterday you were asked to identify the--I think you described them as band-like appearances?
MR. MATHESON: Yes.
MR. BLASIER: From 42? Let me show you this.
THE COURT: Well, let's find out what exhibit it is first.
MR. GOLDBERG: I may have written the number on the back. I sometimes do. That may be 224-C.
MR. BLASIER: 224-C.
THE COURT: All right.
MR. BLASIER: Let me show you 224-C on the elmo.
THE COURT: Why don't we give Mr. Matheson the other copy of that.
MR. BLASIER: Sure.
THE COURT: And keeping in mind the time limitations.
MR. BLASIER: Yes. We're almost done.
THE COURT: Mr. Blasier.
MR. BLASIER: Now, Mr. Matheson, you recall that you had two arrows put where you--where you saw what you described as something kind of like a band. Remember that?
MR. MATHESON: Yes.
MR. BLASIER: Now, you also testified during cross that there is something kind of like a band or something that you can see between those two arrows, correct?
MR. GOLDBERG: That misstates the testimony. It's also inconjunctive.
THE COURT: Overruled.
MR. MATHESON: There is kind of a haze in that area that's brighter than the background, yes.
MR. BLASIER: And could you direct the--get an arrow put on that where you see that?
MR. MATHESON: You need to go to the left, left.
MR. BLASIER: Could we have the arrow on the same side, please?
THE COURT: How about if we have it on opposite sides of the same lane so that we can determine who put what where?
MR. BLASIER: Okay.
MR. MATHESON: I guess you need to go down a little bit, down. Right kind of in that area off to the left there, there's kind of a hazy cloud of something (Indicating).
MR. BLASIER: Okay. Why don't you clip that.
MR. BLASIER: Now, that is in an area that would correspond to an a band, correct?
MR. MATHESON: General area, yes.
MR. BLASIER: Now, I want to cover up everything except that lane.
MR. BLASIER: Can we print this up first?
(Discussion held off the record between Defense counsel.)
MR. BLASIER: Mr. Matheson, I'm going to cover up everything except that lane. See that?
MR. MATHESON: Yes, I do.
MR. BLASIER: And the technique I'm using is what you described earlier as reading it blind, correct?
MR. MATHESON: No. Actually reading blind that I mentioned before is not having any information about the case. It's very difficult and really fairly inappropriate to read a plate without the controls and things present.
MR. BLASIER: There's nothing on there that you as a forensic scientist will call a band, is there?
MR. GOLDBERG: This is improper, your Honor. This is not a scientifically correct way of doing it, and also the resolution is not good enough.
THE COURT: Sustained. Foundation.
MR. BLASIER: Is there anything in that lane that appears that you would call--as a forensic scientist under your training that you would call a band?
MR. GOLDBERG: Same foundational problems.
THE COURT: Overruled.
MR. GOLDBERG: And the resolution is not good enough.
THE COURT: Overruled.
MR. MATHESON: I don't believe I've ever testified that I identified bands in that lane, but that there were things or band-like visible areas that were showing up.
MR. BLASIER: Including in the area of an a band, correct?
MR. MATHESON: In addition to other areas of that lane, yes.
MR. BLASIER: And would you agree that your bank-like appearances are three areas of some sort of a cloudy thing that you've described, correct?
MR. GOLDBERG: There's no foundation for this, your Honor. It's also vague as to "cloudy thing." it's been asked and answered.
THE COURT: Overruled.
MR. MATHESON: I'm sorry. Can you repeat the question?
MR. BLASIER: Yes. You testified now that you see three band-like things--
MR. GOLDBERG: That misstates the evidence.
THE COURT: Sustained. That does.
MR. BLASIER: That you see three areas on there that have a cloudy-like substance, correct?
MR. GOLDBERG: That misstates the evidence.
THE COURT: Sustained.
MR. BLASIER: What do you see, Mr. Matheson?
MR. MATHESON: I see areas on there of different intensities of a cloud-like type of appearance.
MR. BLASIER: And that doesn't look anything at all like what you found under the fingernails, does it?
MR. GOLDBERG: Well, that's an improper hypothetical.
THE COURT: No. That's argumentative the way it's phrased.
MR. GOLDBERG: That's also a picture of a picture.
THE COURT: Sustained.
MR. BLASIER: That doesn't look like what you found under the fingernails, does it?
MR. GOLDBERG: Argumentative, your Honor.
THE COURT: Sustained.
MR. BLASIER: Does that look like the bands--does that have the similar appearance to the bands that you found under the fingernails?
MR. GOLDBERG: Argumentative, your Honor, improper hypothetical.
THE COURT: Overruled.
MR. MATHESON: No, it doesn't. If it looked the same, I would have called this with the same result, and I didn't.
THE COURT: All right. Let's move on.
MR. BLASIER: Could we have slide--let me--
MR. BLASIER: Mr. Matheson, California Association of Criminalists has a Code of Ethics; do they not?
MR. MATHESON: Yes, we do.
MR. BLASIER: I ask you to look at that and read the highlighted paragraph to yourself.
MR. GOLDBERG: Your Honor, this is irrelevant, calls for hearsay.
THE COURT: Overruled.
MR. MATHESON: Okay.
MR. BLASIER: And do you agree that those highlighted paragraphs are two paragraphs from the code of ethics from the California association of criminalists?
MR. MATHESON: Yes, I do.
MR. BLASIER: And you are a member of that organization?
MR. MATHESON: Yes, I am.
MR. BLASIER: And you consider yourself to be bound by those ethics?
MR. MATHESON: Yes.
MR. BLASIER: Your Honor, I'm wondering if we should print out a copy of that last demo I did.
MR. GOLDBERG: Your Honor, I object to that because there was no foundation for a scientist looking at something that's covered up like that.
THE COURT: Overruled.
MR. BLASIER: Could we have slide f, please?
THE COURT: Let's proceed with a little alacrity.
MR. BLASIER: Mr. Matheson, would you agree that the code of ethics of your organization that you are a member of provide that: "The criminalist will be alert to recognize the significance of a test result as it may relate to the investigative aspects of a case. In this--" I'm sorry. I got it backwards. Let me read the other one. Would you agree that one of those provisions provides that: "Where test results are capable of being interpreted to the advantage of either side of a case, the criminalist will not choose that interpretation favoring the side which he is employed merely as a means of justifying his employment"? Do you agree that that's one of the provisions of your code of ethics?
MR. MATHESON: Yes, I do.
MR. BLASIER: Could we see the next slide, please?
MR. BLASIER: Do you also agree that one of the provisions of your code of ethics is that: "The criminalist will be alert to recognize the significance of a test result as it may relate to the investigative aspects of a case. In this respect, however--in this respect, he will, however, scrupulously avoid confusing scientific fact with investigative theory in his interpretations"? Do you agree that that's one of the provisions of your code of ethics?
MR. MATHESON: Yes, I do.
MR. BLASIER: And do you agree that there is no scientific support for your testimony that a BA can degrade to the point where you have two B bands remaining?
MR. MATHESON: No, I do not.
MR. BLASIER: Isn't that what you're doing in this case, Mr. Matheson, is violating this code of ethics?
MR. GOLDBERG: Your Honor, this is totally argumentative.
THE COURT: Sustained. Sustained.
MR. BLASIER: I have no further questions.
THE COURT: Mr. Goldberg.
MR. GOLDBERG: Thank you.
FURTHER REDIRECT EXAMINATION BY MR. GOLDBERG
MR. GOLDBERG: Mr. Matheson, you are, as a criminalist, bound by a code of ethics; is that correct?
MR. MATHESON: I am bound of one of the organizations that I belong to and personally, yes.
MR. GOLDBERG: And does that code of ethics also have provision dealing with presenting inconclusive results in court?
MR. MATHESON: As far as they would not be B?
MR. GOLDBERG: No. The circumstances under which you are allowed to present those results. I thought we looked at that yesterday, didn't we?
MR. MATHESON: I'd have to review and find out what the provision is.
MR. GOLDBERG: Can you take a look and see if--
MR. GOLDBERG: May I approach?
THE COURT: Please. See if we can speed this up just a little.
(Brief pause.)
MR. GOLDBERG: Okay. Looking at paragraph 2-E, sir, can you read that for us out loud?
MR. MATHESON: It reads: "Where test results are inconclusive or indefinite, any conclusion drawn shall be fully explained."
MR. GOLDBERG: And when we were talking about the inconclusive results in this case in terms of the EAP issue, did you explain at exhaustive length how you were considering and why you were considering those results?
MR. MATHESON: Yes, I believe so.
MR. GOLDBERG: Did you feel that it was necessary to do so?
MR. MATHESON: Yes.
MR. GOLDBERG: Why, even at the risk of perhaps boring and presenting maybe marginally relevant explanations at the length to which you went to explain them?
MR. MATHESON: Well, they needed greater explanation than the conclusive results because they are inconclusive. A conclusive result is a final statement. Inconclusion requires that some sort of explanation be made.
MR. GOLDBERG: And at all times throughout your involvement in this case, have you scrupulously followed the ethical standards and guidelines that you are bound to follow as a criminalist?
MR. MATHESON: I always follow them to the best of my ability.
MR. GOLDBERG: Sir, do you consider your participation in the California association of criminalists to be important?
MR. MATHESON: Yes, I do.
MR. GOLDBERG: And do you consider your job as a criminalist to be simply a 9:00 to 5:00 type job so to speak or does it mean more than that to you?
MR. MATHESON: No. It means a lot more. It's a profession. That's why I'm involved in the associations and the profession as a whole.
MR. GOLDBERG: And this code of ethics comes from the California association of criminalists?
MR. MATHESON: Yes, it does.
MR. GOLDBERG: And you're one of the former past presidents of that organization; is that correct?
MR. MATHESON: That's correct.
MR. GOLDBERG: And, sir, can you tell us what the little lapel pin on your lapel represents?
MR. MATHESON: That--it's a pin of the California association of criminalists.
MR. GOLDBERG: Okay. And have you ever at any time ever tried to interpret or misinterpret a result in this case or any of your testimony in this case to favor the Defense?
MR. BLASIER: Objection. Argumentative.
THE COURT: Sustained. Rephrase the question.
MR. GOLDBERG: Have you ever tried to present any testimony in this case in such a way as to favor one side or the other?
MR. MATHESON: No, I have not.
MR. GOLDBERG: And since you have been testifying, has any member of the California association of criminalists called you and criticized anything that you've said?
MR. BLASIER: Objection.
THE COURT: Irrelevant.
MR. GOLDBERG: Now, Mr. Matheson, I'd like to ask you a few other questions quickly about the EAP issue. I know we've gone into it in exhaustive length, but we'll make it very rapid. As to the Yeshion article that you were asked about, was that an article that studied in the sense of doing experiments on the issue of EAP degradation from BA to B?
MR. MATHESON: No, it is not.
MR. GOLDBERG: Okay. What type of EAP degradation issues was Yeshion dealing with?
MR. MATHESON: It was a technical note about a B to a CB.
MR. GOLDBERG: Okay. And so there are some other degradation problems that deal with EAP that we haven't really discussed at length in this case; is that correct?
MR. MATHESON: That's correct.
MR. BLASIER: Objection. Leading.
THE COURT: Overruled, but we've covered this once already.
MR. GOLDBERG: And, Mr. Matheson, scientifically speaking, does this article, the Yeshion article provide any new scientific information in terms of a study on the BA to B phenomenon?
MR. MATHESON: No, it does not.
MR. GOLDBERG: Now, with respect to the Grunbaum study that we talked about, was there a sample in that study that was in fact mistyped as a B question mark that was a BA?
MR. MATHESON: Yes, there was.
MR. GOLDBERG: And did Mr. Grinbaum state that in those cases, distinct band patterns were present in the cases of the mistypes that occurred in his study?
MR. MATHESON: I believe so, yes.
MR. GOLDBERG: And what does that mean?
MR. MATHESON: Well, I think the use of the term "patterns" rather than "pattern" indicates more than one band.
MR. GOLDBERG: And you have stated that in your professional career, the BA to B phenomenon is something that you have personally seen where there are both B bands present?
MR. MATHESON: Yes.
MR. GOLDBERG: And that includes a number of instances in this case; is that correct?
MR. MATHESON: Related to this case or other cases?
MR. GOLDBERG: Well, there are a couple instances in this case, more than one where you believe it happened here?
MR. BLASIER: Objection. No foundation.
THE COURT: Overruled.
MR. MATHESON: Yes.
MR. GOLDBERG: Now, you were asked about preconceived notions and the effect that that has on a scientist's judgment. When you were typing 42, the pool of blood of Nicole Simpson, had you previously been informed prior to when you did your work by Mr. Fung that that was collected as a sample of Nicole Brown's blood?
MR. BLASIER: Objection. Calls for hearsay.
MR. GOLDBERG: Coming in for his state of mind on preconceptions.
THE COURT: Overruled.
MR. MATHESON: It was my understanding that that's what that sample was.
MR. GOLDBERG: And that's what you believed when you were actually doing the testing?
MR. MATHESON: Yes.
MR. GOLDBERG: So when you were actually doing the testing, did you believe that the results should be a BA?
MR. BLASIER: Objection. Argumentative, asked and answered.
THE COURT: It's leading.
MR. GOLDBERG: What did you believe the results should be prior to doing your test?
MR. MATHESON: I was expecting to see a BA.
MR. GOLDBERG: And is that what you saw?
MR. MATHESON: No.
MR. GOLDBERG: What did you see?
MR. MATHESON: I saw an inconclusive result with some kind of fuzzy areas that lined up with the two B bands.
MR. GOLDBERG: So you called it as a B inconclusive?
MR. MATHESON: B question mark, and the conclusion was that it was inconclusive.
MR. GOLDBERG: And, sir, did your preconceptions in any way affect that result or that--that notation in your reports?
MR. MATHESON: No, it did not.
MR. GOLDBERG: In the literature, have you seen a single reference that says that the only degradation route is the one that was discussed in the article by Wraxall under all conditions?
MR. MATHESON: Not that I recall, no.
MR. GOLDBERG: And has anything that was brought up to you on cross-examination with respect to the EAP issue--excuse me--on re-recross caused you to reevaluate or reform any of the opinions that you've presented here in court on the EAP issue?
MR. MATHESON: No, it has not.
MR. GOLDBERG: Now, on the card key system--you were asked about the computer system and dealing with evidence tracking and the card key system dealing with the doors. Are those two separate systems?
MR. MATHESON: I'm sorry. Would you repeat the question?
MR. GOLDBERG: There--you have a computer system dealing with door entries; is that correct?
MR. MATHESON: Yes.
MR. GOLDBERG: And you have a system that also tracks evidence called the set system; is that correct?
MR. MATHESON: That's correct.
MR. GOLDBERG: Now, are those the same computer program or are they different computer programs or what?
MR. MATHESON: They're totally unrelated, actually sit on totally different computers.
MR. GOLDBERG: And was the card key system with respect to the laboratory in fact in operation from let's say June the 12th all the way forward to today?
MR. MATHESON: Yes.
MR. GOLDBERG: Do you know how much--do you have any personal knowledge of how much was in the blood vial at the time that it initially came to the laboratory?
MR. MATHESON: No, I do not.
MR. GOLDBERG: Now, with respect to the evidence processing room, is there any practice in place at SID to take detectives on tours of the laboratory and point out to them where everything is and where the drying cabinet is and the like?
MR. BLASIER: Objection. Asked and answered.
THE COURT: Overruled.
MR. MATHESON: We do occasionally give tours to detectives.
MR. GOLDBERG: Is that done though for every single one systematically?
MR. MATHESON: No, it isn't. If they express an interest, we'll be happy to show them around.
MR. GOLDBERG: When you take tours, do--would you make it a point--well, have you ever done a tour yourself?
MR. MATHESON: As far as giving one?
MR. GOLDBERG: Yeah.
MR. MATHESON: Yes.
MR. GOLDBERG: And do you make it a point when you're giving a tour to point out the drying cabinet, "This is where we dry our biological evidence?"
MR. BLASIER: Objection. Argumentative.
THE COURT: Overruled.
MR. MATHESON: No, that's not one of the highlights of the tour.
MR. GOLDBERG: Actually, the lab is set up for tours, isn't it?
MR. MATHESON: Yes, it is. The windows into the lab and we actually have an audio system where you can push a button and listen to us talk about that unit.
MR. GOLDBERG: And with these windows, is that so that people can look inside the lab and see what's going on and then they press a little button that gives them a description of it?
MR. MATHESON: If they want to, yes.
MR. GOLDBERG: And are these guided tours that you occasionally give to school children and the like?
MR. MATHESON: Yes.
MR. GOLDBERG: So they just go through the corridor area and they can press these buttons?
MR. MATHESON: They can, yes.
MR. GOLDBERG: All right. So if--when someone's working in the laboratory on evidence, say, the serology laboratory, there's a window that's set up so that people can see in and watch what they're doing?
MR. MATHESON: Yeah. Most parts of the lab. You can't see into all corners of it.
MR. GOLDBERG: All right. Now, have you ever seen--do you know whether Detective Vannatter, Detective Lange or Detective Fuhrman have ever had any tour of the SID facility?
MR. MATHESON: I have no personal knowledge of that.
MR. GOLDBERG: And have you ever see either of those detectives trained in how to collect a swatch?
MR. MATHESON: I don't remember if any of them have received direct training on that.
MR. GOLDBERG: Have you ever seen them collect a swatch?
MR. MATHESON: Not that I can recall.
MR. GOLDBERG: Thank you. I think that may be just about it. Let me check.
(Discussion held off the record between the Deputy District Attorneys.)
MR. GOLDBERG: Can I just have one moment, your Honor? I think that that's just about it. Thank you very much, Mr. Matheson, and ladies and gentlemen.
THE COURT: Mr. Blasier.
MR. BLASIER: One question.
FURTHER RECROSS-EXAMINATION BY MR. BLASIER
MR. BLASIER: Mr. Matheson, in the Grunbaum article that you testified to where there's reference to one example of a BA degrading and being mistyped as a b, do you have any idea how many bands that degraded BA had?
MR. GOLDBERG: Calls for speculation, asked and answered.
THE COURT: Overruled.
MR. MATHESON: Not exactly, no.
MR. BLASIER: You can't tell whether there were two bands at the end or one band, can you?
MR. MATHESON: Not unless the term "patterns" makes reference to that, but not specifically, no.
MR. BLASIER: Have you ever called Dr. Grunbaum or Mr. Zajac and ask them?
MR. GOLDBERG: Calls for speculation, your Honor.
THE COURT: That's three. That's three.
MR. BLASIER: No further questions.
THE COURT: Thank you. Nothing more on that?
MR. GOLDBERG: No, your Honor.
THE COURT: All right. Mr. Matheson, thank you very much, sir. You are excused as a witness subject to being recalled.
MR. MATHESON: Thank you.
THE COURT: All right. And don't discuss your testimony with anybody else with regards to this case. All right. Ladies and gentlemen, we're going to take our recess for the morning session. Please remember all my admonitions to yourselves; don't discuss the case amongst yourselves, don't form--you know what the admonition is. Don't discuss the case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you with regard to the case, don't conduct any deliberations until the matter has been submitted to you. All right. We'll stand in recess as far as the jury is concerned. All right. And I'll see counsel in about five minutes.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record. Parity and sanctions. I'll hear from Mr. Scheck first. Good afternoon, counsel.
MR. SCHECK: Good afternoon, your Honor. Your Honor, the most precious commodity an advocate has is credibility. Before I walked into this courtroom, you and I didn't know each other, although we passed through the same halls of a law school in northern California, but neither of us even remembered meeting each other. When I walked into this courtroom many months ago, a lot of things were said about--from the Prosecution's side to, quote, inoculate you as to how I would conduct myself as a professional and how Mr. Neufeld would conduct himself as a professional. And during the course of these many months, as any advocate, I have to build up credibility with you. I have to be accurate in what I say. I have to comport myself in a manner that is in accordance with the rules of the Court. I have to make representations to you factually again and again that are accurate for you to have any trust in me, a person you've never seen, have no experience before, never worked with before. The same is true--and I know the Court realizes this as a trial lawyer--with the jury. When one gets up and conducts a cross-examination, the facts ought to be there. One has to be very careful in the representations one makes and the points one makes. Advocacy should be vigorous, but it has to be fair. I think the term applies to Prosecutors in United States versus Berger, words I'm sure the Court's familiar with. You have to strike--you can strike hard blows, but they've got to be fair ones. And I think the same applies to advocates on both sides of the aisle. So it's of great concern to any advocate to finish cross-examination that's been carefully planned, when details have been gone over with with the Court, when one is relying on Court orders, one is relying upon compliance with those Court orders by the Scientific Investigation Division laboratory by the Prosecutors, bases in all fairness certain lines of questions on those representations in compliance with this Court's order. I think I'm entitled to rely on them doing their job diligently and making fair and honest representations. It's not too much to ask. I was set up. There were--the record is now clear that, first, when the discovery application was made for the production of original documents, mistakes were made by personnel in SID in turning over--according to them. I mean, let's just assume page 4 was the original. According to them, they made a mistake and did not turn over the original. I don't think there's any question now in terms of the record that they were very concerned about why we would be looking at these documents and what our concerns would be. And I think it's fair to say that they also knew we were very concerned about Mr. Simpson's blood vial.
THE COURT: Well, Mr. Scheck, let's sort of cut to the chase.
MR. SCHECK: Yeah.
THE COURT: We know that the Court made the production order.
MR. SCHECK: Yes.
THE COURT: We know that during the course of the testimony of Mr. Fung, that that page 4 appeared, that that appearance was known to the Prosecution prior to the conclusion of your cross-examination of Mr. Fung and that a decision was made--it was discussed and a decision was made not to reveal that prior to the redirect examination.
MR. SCHECK: Missing one step. If I could bring the Court's--
THE COURT: What one step am I missing?
MR. SCHECK: All right. Between the time that I finished cross-examination and during the production of documents, the record is clear that Mr. Hodgman notified Mr. Neufeld and myself that in the documents that they had turned over to us, one of the documents was not an original. That was the page that's been designated l-16/32. And I outline this with citations to the transcript in my letter. That came up in the cross-examination and in fact in the direct examination. It then became clear that before we proceeded down that last fatal line of cross-examination, that the Prosecution, through Mr. Fung and Mr. Matheson, went into Mr. Fung's notebook and came out with the original l-16/32. And the reason that's significant, your Honor, is, it put them on notice that their original productions might have been inadequate. And also--and I find this very troubling. I'm sure the Court noticed it--Mr. Goldberg in all his arguments, that I made some kind of tactical choice not to come forward and point out a mistake to them, misstated the facts to the Court on the record saying that we were the ones that brought to the Prosecution's attention that we had not received an original. Therefore, we should have done it again with page 4 when exactly the opposite occurred. They brought Mr. Hodgman down to this courtroom when this issue was in dispute and Mr. Hodgman said that we were correct. They then filed this parity motion with the Court and repeat the same inaccurate representation as to the chain of events--it's astonishing--and make the same argument--
THE COURT: Well, Mr. Scheck, I'm just--
MR. SCHECK: No. The reason I focus on that--
THE COURT: No. I'm just trying to cut to the chase.
MR. SCHECK: No, no.
THE COURT: Counsel, I sat through all of this.
MR. SCHECK: I understand. And I know you know the record. The only reason I'm pointing this out and emphasizing it is that one of the problems I had with the proposed charge of the Court is that it's my position that they had further notice and this is not--Court referred to it as inadvertence and I think mistake in the first instance is a fair statement. Sid make a mistake in turning over the documents, if you want to be charitable. They simply failed to turn over the right documents according to them. Then they're put on notice that where the mistake might have come from and they didn't do anything about it. So I think there's another degree of certainly negligence or in terms of not being properly diligent in searching their files. And that's a factor to be considered in terms of what transpired subsequently to that. Now, I think the Court was going to--that's the only reason I stopped the Court. Now I think you want to cut to the chase and ask me another question about what, prejudice?
THE COURT: No. I understand your argument about the need for trial counsel to maintain their credibility before the trier of fact. I understand that. I accept that argument as being a valid argument. The next question is, you have submitted to the Court a proposed admonition to the jury. I indicated to you that I would probably give 85 percent of that, but I was uncertain about the last sentence to be taken into consideration as to credibility of that particular witness.
MR. SCHECK: Well, I think now that what's clear is that subsequent to the active intentional misconduct, the Prosecution then tried to exploit that on the redirect examination by asking Mr. Fung questions that indicated that they had fully complied with their discovery obligations, that they didn't throw away documents or tear them up, et cetera.
THE COURT: But, Mr. Scheck, I sat through all of that.
MR. SCHECK: I know. And you also indicated when I objected to it and asked for the admonition at that point again that it was overreaching and it was improper vouching and they were trying to exploit the mistake. My problem is, your Honor, this happened so long ago and then they then tried to exploit it and then continued with the misrepresentations. My problem is this. Unless you're willing to say something strong, it's not worth doing at all.
THE COURT: Miss Lewis.
MS. LEWIS: Thank you, your Honor. Good morning.
THE COURT: Good afternoon.
MS. LEWIS: Good afternoon it is. Your Honor, let's look at some of the pertinent facts that haven't been highlighted. Initially, Mr. Scheck apparently was at SID and examined the originals--and I'm told there is some 80 to 100 documents that we're talking about--examined those documents, felt at that time we now know that there was a problem with the original not being present on page 4. Now, in that time, did he do what the Defense has done consistently throughout this case not only with the DNA labeled materials, but with any other type of material? Did he send us a letter? Did he call Mr. Hodgman? Did he do anything like that and say--did he even ask Mr. Goldberg there when Mr. Goldberg was present, "Do you know where the original page 4 is? It looks like it's missing"? No, he didn't do that. And that was back in March. What he chose to do was to ask for all of these documents so that they could have a questioned documents examiner analyze them. We had no idea why they would want to do something like that. So we said, "We think you ought to go to the Court with that request," even though we have been complying with many, many requests of theirs that really go beyond the bounds of discovery. So they did. They went to the Court and what Mr. Scheck revealed to us during the last argument is that he made an in camera, ex parte appropriately offer of proof to the Court apparently about this original of page 4. So apparently that is one reason why the Court ordered the production of those originals from us to the Defense for their inspection. All of this was unbeknownst to the Prosecution. All we knew is that we were ordered to produce the originals, which comprised some 80 to a hundred documents. We complied with the Court's order to the best of our knowledge. The Court already I believe made a finding that it was inadvertent that we had not turned over the original at that point in time. But what the Defense apparently decided to do after their questioned documents examiner apparently verified that wasn't an original page 4--and by the way, let's recall, this is a blank piece of paper we're talking about, a blank form which has just the typewriting, but nothing filled in. Once their questioned examiner--questioned document examiner apparently verified that wasn't an original, they, instead of, again, once again, asking us, as they have many times throughout this case on all sorts of discovery throughout this case, instead of asking us, "Do you know where the original is of page 4," according to Mr. Scheck--and apparently, he just corroborated what it seems like now, they planned--he planned his entire cross-examination with culminating on this big finish of accusing Mr. Fung of being involved in a conspiracy by trying to cover up the timing with regard to the transfer of blood from Mr. Vannatter--Detective Vannatter to Mr. Fung. So what counsel did was to make a deliberate, tactical choice and maneuver to try and utilize this, to exploit this nothing as it turned out to the benefit of the Defense in making it appear like there was something there, like there was some part of a conspiracy there. None of this was known to the Prosecution of course. Now, we reached a point in time during the almost tail end of Mr. Scheck's--Mr. Scheck's cross-examination of Dennis Fung, and that's when he elected to come up with the accusations with regard to the missing original page 4, and it became clear to the D.A.'s at that time that he knew he didn't have the page 4, original page 4, and that's the first time that any of us knew that there wasn't an original page 4 examined by the Defense. Now, one thing the Court has stated which causes me concern--and I believe the record is clear, but I want the Court to be clear in the Court's mind--is that when Mr. Scheck had indeed finished his cross-examination of the witness, of Mr. Fung before we took a break, and it was during that recess that the attorneys involved sought to find out if indeed they could locate the original page 4. And, your Honor, what Mr. Scheck said at transcript page 22776 is, "Your Honor, I would like to do two more things, and I'm finished questioning this witness. What I would like to do is first have printed out on the elmo a copy of the document with the eraser," different document, "and then," in other words, a second thing, "I would ask that each of these documents be handed to the jury so that they can examine them." both of those items were done. The document was collected back from the jury. And reporter's transcript--unfortunately I have 2278 which has to be a page short, but within a few pages right after that, he said, "I have no further questions." and at that point in time, the Court took a recess. And so the record is clear, that he had rested indeed before the recess. And at that point in time, the Prosecutors looked to see if they could find where the original page 4 was, and they found it. Now, it was clear from the questioning that Mr. Scheck made of Mr. Fung that that was a tactical decision on their part to handle it in that manner. Their remedy--now, this was, your Honor, a discovery order that the Court made. The remedy for discovery violation--well, the common sense thing which has been done throughout this case by the Defense is to come to us and say, "Hey, we didn't get x discovery," you know, in an informal basis. They could have done that and they never did that at any point in time. The next thing they should have done would be to go to the Court and say, "We want a sanction of some kind. We want a hearing on this missing original page 4. We want a hearing to determine if there's any impropriety on the D.A.'s part with regard to this original page 4." that was their remedy under the Court's discovery order. Did they do that? No. They elected instead to use it in a technical--tactical rather maneuver to confront--seek to confront the witness with its absence. So what they did and what's critical here and what I don't believe we articulated last time we visited this issue, but what is critical, your Honor, is that when the Defense made that decision, they waived enforcement of the Court's discovery order. They waived its enforcement by pursuing the course that they did rather than demanding an explanation or demanding an inquiry.
THE COURT: Do you know of any case authority that would characterize that situation or anything similar as a waiver?
MS. LEWIS: I don't have a case, your Honor. The black--we've cited in our brief the definition of waiver from black's law dictionary which really applies. I would like to read it into the record. "A waiver is defined as the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right or when one dispenses with a performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with a right or his intention to rely upon it." particularly that latter sentence, your Honor, the--it's a lengthy definition, but the latter portion of it, "When one in possession of any right, whether conferred by law or contract, with full knowledge of the material facts," which they had full knowledge of the material fact, "does or forbears to do something," and they forbore to do, they forwent pursuing the appropriate remedy, which would be a discovery sanction and an inquiry of the Court and the Court making inquiry of the Prosecution to see if this was an intentional violation which warranted sanctions, they forwent doing that. And that's what this says. "they do or forbear to do something, the doing of which or the failure or--or forbearance to do which is inconsistent with a right or intention to rely upon it." so their actions were indeed inconsistent with that right they had to that remedy under the discovery laws. And that was clear to us during the--the consultation which went on during the brief 15-minute recess. It was clear to us, it was clear to the D.A.'s involved that they had elected not to pursue that avenue. They had indeed confronted the witness with it. Now, your Honor, the--so, your Honor, the black's law dictionary defining "waiver" is directly on point here. Now, I do want to make the point that the Defense has apparently on more than one occasion attempted to make a mountain out of a molehill. And, Judge, frankly this wasn't even a molehill. This was a blank page as the Court has noted. There was nothing here. And it shows frankly how desperate the Defense has been in some areas in coming up with a Defense in this case and it's demonstrated also by their shotgun Defense, but I mean, this is just one example of where they have tried to make something out of really hole cloth. And instead of pursuing the honest, the normal, the truth-seeking appropriate remedies under the discovery law, which the discovery laws encourage from both sides, they decide to try and use it as a tactical maneuver. And when they did that, it backfired and it blew up in their face and they created their own problem by having done that. Now, I do want to make a point. When the Prosecution, when Mr. Goldberg who was brought into the case after the search and seizure had been litigated, when he inadvertently referred to the airline ticket and the baggage ticket, which was evidence which was only favorable to the Defense frankly because it showed indeed that Mr. Simpson had a pre-planned trip to Chicago, where he had apparently been, when they made a big deal of that--they made a big deal of it twice. And in the second instance--and in fact, Mr. Goldberg I believe was admonished once. I don't recall exactly what happened with the second time. But again, they made a big deal of that. And what did they end up doing? They ended up withdrawing their objection to 15 and 16. And initially when they tried to do that--I think Mr. Scheck was the first to try and do that, and it appeared to me that Mr. Cochran didn't want to give that up as a possible avenue on appeal or something, whatever, to make more of. But they utilized that the most they could to try and dig a knife into Mr. Goldberg when he had really done--he had violated the Court's previous order, which he was unaware. And it's too bad that it happens. I know he regrets that it happened. But it was certainly not--pardon?
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: And he was humiliated. He was indeed humiliated by the Court and degraded because of that inadvertent good faith error that he made. So the Defense now is seeking to capitalize on the Court--you know, as the Court knows, we as Prosecutors are held to a very high standard, and we're often held to a higher standard and--
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: Right. And just to finish the point with regard to the airlines ticket, the airline ticket and the baggage ticket, they made it--I think I just made this point, but they made a big point about these documents and then later stipulated that they were admissible. So clearly, you know, where was the good faith in seeking to have Mr. Goldberg humiliated and sanctioned in front of the jury with regard to that. That just shows that that was game playing. Now, the point I was trying to make, as we know as Prosecutors, that we are obliged to the highest standard under the law and we do the best we can to fulfill our ethical obligations. We're also servants of the People of the State of California and we're beholden to those people to be as vigorous advocates in favor of the truth and having the truth come out as we are allowed under the law and under our ethical obligations to be. And we have done that in this case and we have consistently tried to uphold that integrity of the oath of our offices as Prosecutors. And to have the Defense turn around and try and blame our side of the table for something that their own tactical error caused them to be embarrassed by is just incomprehensible. It's not fair, your Honor, it's not fair to the Prosecution and we should not be sanctioned. It's just not warranted. The one aspect that the Court had expressed concern about I believe is satisfied by the objective indication that the Defense had indeed waived their right to rely on the Court's discovery order. That is the only--the only hole one might have, you know, considered in the previous argument that we made in this regard. But we do not deserve to be sanctioned, your Honor. We had a limited period of time to make a very strong decision. And I believe our decision was a correct one. Though I did not happen to participate, I believe I would have made the same decision because it was clear the Defense had waived any other kind of enforcement when they decided to--when Mr. Scheck decided to make--try and make a big deal of this in front of Mr. Fung.
THE COURT: But waiver, to be a valid waiver requires full knowledge, doesn't it? And if they don't know that you've got it, how is that a knowledgeable or complete waiver?
MS. LEWIS: They waived it because they waived inquiry. They waived inquiry. Now, you know--
THE COURT: But they're not entitled to rely upon your representation--and when I say generically "your representation," I mean the Prosecution.
MS. LEWIS: I understand.
THE COURT: That's--"these are the documents, here they are." they can't rely upon your integrity or the Prosecution's integrity that this is in fact a complete set of documents.
MS. LEWIS: I don't think they're--I don't think it was reasonable reliance.
THE COURT: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: Your Honor?
THE COURT: We need to wrap this up.
MS. LEWIS: Your Honor, the--they were entitled to seek to ascertain the truth and they were entitled to the Court's order which the Court was convinced it should give with regard to these documents. It--considering the--I'm told we're up to 28,000 items of evidence pages and including altogether 28,000 items of evidence we have turned over to the Defense. They have not hesitated to bring it to our attention previously when they've been aware or when it's become apparent to them that there was some mix up of some--in some manner, that they didn't get something that they wanted. And in this instance when--I don't know if it was Mr. Hodgman or Mr. Yochelson--whomever discovered that we had inadvertently failed to turn over one particular original, that showed our good faith. If we knew, we would have done it. But no, I don't think in this situation--they don't come to this with clean hands, your Honor. The equities are not in favor of the Defense on this, not when we've had a past history of dealing with them repeatedly throughout the 11 months that we've been in this--10 months, 11 months we've been in this case now. Repeatedly dealt with them on an informal basis. So if there's anything they didn't want--Mr. Hodgman has sat I know, your Honor, in chambers with the lawyers with regard to all this DNA stuff on countless occasions trying to all--comply with all of this informally and trying not to have to burden the Court with too many discovery matters. The Court has heard a lot of them, but there's been a lot done informally that we've not had to burden the Court with. So to make an issue, make a mountain out of something that doesn't even come to a molehill, it's not even a grain of sand or a piece of--a little tiny piece of dirt in this instance is really unfair and it's unfair to the Prosecution, your Honor.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. I think we've used our allotted time.
MS. LEWIS: Can I just have one moment, your Honor?
THE COURT: One moment.
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: Your Honor, we--I just do want to make the final point. And we do have in our papers that the Prosecution has been sanctioned numerous times in this case and, you know, the Court made those determinations, but we have been sanctioned numerous times. We've just this morning heard of a--through an offer of proof from Mr. Blasier with regard to what an expert has told them, something that we've had no discovery of. So we're still on this. And I also want to draw the Court's attention briefly to the beta tapes. There was a day when Mr. Scheck said, "We have no beta tapes, period."
THE COURT: Well, counsel, that's really apples and oranges. I don't evaluate all of these things as a running continuum necessarily. This is a specific order and a specific incident. So let's confine our comment to that. And, counsel, you've exceeded the amount of time. All right.
MS. LEWIS: All right. Thank you, your Honor.
THE COURT: Thank you, counsel. Mr. Scheck, any response that you find necessary?
MR. SCHECK: Just briefly to the substance, and I won't take the bait of--I don't know why they always have to say something about my honesty every time this issue comes up when they get the facts wrong. It's--in any event, my concern is that when they came back and said, "This l-16/32 we found in Mr. Fung's notebook," middle of cross, when even an issue was made where is the original of that document, it's undated, they were on notice that they might not have produced originals from his notebook. And it appears from the testimony very clear that the process of fielding the originals and to the extent we can even be sure these are still originals comes from SID, from Mr. Fung, Mr. Matheson, through the Prosecutors. Then there are all these questions on redirect examination trying to bolster the--and vouch for the way in which Mr. Fung and Mr.--Mr. Fung in SID, how honest they are, how the documents themselves can be trusted, that they don't throw anything away, that they don't tamper with them in any way. And one point I think is worth noting. They keep on saying it's a blank page, and, therefore, it had no evidentiary significance. That was the point, that it was a blank page. That frankly is still the point. And we still have in those documents this whole line of proof--I know they don't like it--that there was some manipulation of Mr. Simpson's blood vial, that it was mislabeled, it was item 18, indicating it was received after the sneakers. This is still a contested issue in this trial as to the amount of blood in the vial. It's going to be a contested issue all the way to the end. So I think that this is a significant point as to the credibility of the witness, and I don't think there's any issue that they not only intentionally did not comply with the order; they didn't give us a chance to deal with it as an advocate can. They tried to attack not only our credibility of advocates, but most importantly, they tried to vouch for the credibility of the way they handle discovery and credibility of the witness on this issue of some--of real importance to the case. So those are the elements that it seems to me we're--I think that they have compounded since this issue first arose and that the Court really should take care of in the order. It's clear they vio--they misled us. They were on notice of the source of their mistake. They didn't take any action to change that, if indeed it is the original. They exploited it intentionally. They then on redirect examination vouched for the credibility of the witness. So I think that we're entitled to the elements that I think we're missing from the Court's charge about the vio--their violation of the law in the first instance, their intentional misconduct in the second instance, their misleading us, whether it's by mistake at first and negligence certainly at least second, and finally that their efforts--their intentional misconduct was in the way they conducted the redirect to try to vouch, I think we're entitled to that element of the charge that the jury may consider the failure and the intentional failure to bring this to the Defense's attention on the credibility of the witness, because it was the--it did reflect on the witness and it was something that they were vouching for in terms of the proper handling of the documents in discovery. So I think we're entitled to all those elements. And again, I urge the Court, they delayed this by every means possible. So now we're really at a point that again, if the Court is not going to give a strong charge on this, it's not worth doing it. It's more of a problem for us than it's worth.
THE COURT: All right. Thank you, counsel. All right. I'm going to review some of the commentary in the transcript before I issue the ruling on this. And at that point, after I issue a ruling, I'll give the--both parties an opportunity to look at that before I go forward. All right. Also, I would like counsel to consult in the meantime about what peeked my interest earlier today, the comment about--by Mr. Blasier about in the offer of proof regarding EDTA testing, whether or not there's a discovery issue there. That should be handled informally first. If I need to take it up, we'll do that on Monday. All right.
MS. LEWIS: Your Honor, Mr. Blasier mentioned to me he had a plane--he was hoping to get out by noon. I don't know if he's still here.
THE COURT: No. I know. But I understand, since we have five other able lawyers here, that somebody here knows about this. All right. Mr. Neufeld.
MR. NEUFELD: Yes, your Honor. When would you like to take up the issue of the DNA boards for Dr. Tylick, who I believe will be beginning to testify sometime on Monday?
THE COURT: All right. Have we displayed those?
MR. CLARKE: We had a viewing by the Defense of the various boards, and I believe Mr. Neufeld indicated there may be some objections to some of them. They are upstairs and somewhat voluminous, but at least they're heavy.
THE COURT: All right. Then why don't we do this 8:00 o'clock Monday.
MR. SCHECK: Well, if they have to change the boards, I don't know if that's--we can indicate--I don't know.
THE COURT: Well, I mean, are counsel available this afternoon? Mr. Clarke?
MR. CLARKE: Did the Court have a particular time in mind?
THE COURT: Well, I would like to get some lunch one of these days. You want to come back say at 1:30, 2:00 o'clock informally, and we'll just take our coats off, look at these things and see what we got?
MR. CLARKE: That's fine.
THE COURT: All right. 2:00 o'clock.
MR. GOLDBERG: Your Honor, is it possible to mark one of the printouts that was not previously marked of the blood vial? And I don't know whether we need to separately mark our little red--
THE COURT: Let's do that Monday.
MR. GOLDBERG: Okay. So can we take them or leave them in the Court's custody.
THE COURT: No. Leave it in the Court's custody.
MR. CLARKE: Was that to be 1:30 or 2:00, your Honor? I'm sorry.
THE COURT: 2:00 o'clock. And we won't have a court clerk.
(At 12:50 P.M. an adjournment was taken until, Monday, May 8, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California, )
plaintiff, )
vs. ) no. Ba097211 )
Orenthal James Simpson, )
Defendant. )
Reporter's transcript of proceedings Friday, May 5, 1995
Volume 140 Pages 26063 through 26238, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
ALSO PRESENT: Maya Hamburger, Esquire
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I N D E X
Index for volume 140 pages 26063 - 26238
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Day date session page vol.
Friday May 4, 1995 A.M. 26063 140
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX of witnesses
PEOPLE'S
Witnesses direct cross redirect recross vol.
Matheson, Gregory 140 (Resumed) 26066gb 26145bb (Further) 26198gb 26209bb
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ALPHABETICAL INDEX of witnesses
Witnesses direct cross redirect recross vol.
Matheson, Gregory 140 (Resumed) 26066gb 26145bb (Further) 26198gb 26209bb
EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
227 - photograph of 26076 140 a pipetter
228 - disposable 26077 140 Pipetter tip
229 - photograph of 26104 140 a glass vial with red substance being held in an upright position by a finger
230 - photograph of 26104 140 a microcentrifuge tube
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1143-A thru g - 26172 140 Photograph of a slide presentation of EAP on nails