Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Good morning, counsel. Back on the record in the Simpson matter. The Defendant is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. The People are represented by Miss Clark and Mr. Darden, also Mr. Harmon, Mr. Clarke and Miss Martinez and Mr. Fairtlough. I see I missed Mr. Thompson and Mr. Douglas. All right. Counsel, before we get started this morning, there was a remaining matter the Court had to rule upon regarding the manner in which the Prosecution will be allowed to present evidence concerning mixtures, for example, the mixture blood sample that came from Ronald Goldman's shoe. And counsel, I reviewed the case authority cited by the Prosecution yesterday, People versus Wash. I also reviewed the NRC report again, section dealing with mixed samples, and specifically the discussion that is approximately page 55 to page 75 of the NRC report. And what I would like is, out of the presence jury, an expert explanation as to how these autorads are read with regards to these mixtures and what the significance is and why or why I should not require a statistical analysis as is suggested by the NRC at page 59. All right. Mr. Clarke, your evidence. Ball is in your Court.
MR. CLARKE: Yes. Dr. Cotton then again, your Honor.
THE COURT: All right. Dr. Cotton.
MR. NEUFELD: Your Honor, just to clarify, do you want this also to apply to the second mixture which they intend to introduce testimony of in the steering wheel, 29?
THE COURT: Yes, 78 and 29.
Robin Cotton, called as a witness by the People under evidence code section 402, having been previously sworn, resumed the stand and testified further as follows:
THE COURT: Good morning again, Dr. Cotton. You are reminded you are under oath for the purpose of this proceeding. Mr. Clarke.
MR. CLARKE: Yes. Thank you, your Honor.
DIRECT EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Cotton, are you familiar with the issue that the Court has framed and wishes you to address?
DR. COTTON: Yes, I am.
MR. CLARKE: All right. With respect to in particular item no. 78, the bottom of Mr. Goldman's shoe, did you perform RFLP typing on that particular sample that was provided to your laboratory?
DR. COTTON: Yes, we did.
MR. CLARKE: In the course of that RFLP typing what results did you obtain?
DR. COTTON: We obtained a banding pattern that was clearly a mixture and--
THE COURT: How do you know it is clearly a mixture?
DR. COTTON: The best indication from the banding pattern that it is a mixture is that the intensities of the bands in the pattern are different and there are more than eight bands in the cocktail. And in the individual probes there is at least one probe where you see three, so the total number of bands and the differing intensities of the bands confirms that in fact you have more than two people there.
MR. CLARKE: With the Court's--
DR. COTTON: I mean, sorry, more than one person there.
MR. CLARKE: Your Honor, with the Court's permission could we illustrate that by use of the overhead projector?
THE COURT: Yes. I would like to see the autorad.
MR. CLARKE: Dr. Cotton, do you have the original autorad that deals with item 78?
DR. COTTON: Yes.
(Brief pause.)
MR. CLARKE: I believe that would have been my next exhibit anyway. Shall we just go ahead and mark that as the People's next in order?
THE COURT: Might as well.
MR. CLARKE: 257, I believe.
THE COURT: All right. People's 257, but remark it in front of the jury so that they are aware of it.
MR. CLARKE: Yes.
(Peo's 257 for id = autorad)
MR. CLARKE: In fact, I think we may have discussed this yesterday in terms of marking the exhibits, with respect to this particular autorad there is what the witness has just described as a "cocktail," and then there are associated autorads that basically look at the individual loci one at a time, so would the Court like that, for instance, marked 257 a through whatever? I think that might be easier.
THE COURT: All right. If it is associated to the same test, I would assume that would be the most logical way to do it.
MR. CLARKE: It is.
THE COURT: All right.
MR. CLARKE: All right. Dr. Cotton, with regard to this particular test, that involved item no. 78?
DR. COTTON: That's right.
MR. CLARKE: Did it involve any other test samples, that is, evidence samples in this case, other than known samples?
DR. COTTON: Yes. There are two other evidence samples displayed on this film.
MR. CLARKE: What items are those?
DR. COTTON: They are item 52 and item no. 12.
MR. CLARKE: All right. How many autorads total are there in this one particular RFLP test?
DR. COTTON: Seven.
MR. CLARKE: With respect to those autorads, would it be appropriate to begin with what has been referred to as the cocktail autorad?
DR. COTTON: For this purpose I would say yes.
MR. CLARKE: Okay. Then your Honor, if we could mark the cocktail as a.
THE COURT: 257-A.
(Peo's 257-A for id = autorad cocktail)
MR. CLARKE: And then with respect to the remaining autorads, do they then represent individual loci or individual genetic markers typed one at a time?
DR. COTTON: Yes.
MR. CLARKE: Are there names for each of those markers? Perhaps we can--would the Court like the witness to describe what marker will be b and which marker c and so forth at this point?
THE COURT: You need to show me why this comes in.
MR. CLARKE: All right.
THE COURT: So--
MR. CLARKE: Would it be appropriate to mark the first individual genetic marker test, ms1, as the letter b?
DR. COTTON: Yes.
MR. CLARKE: Is ms1 simply the description of that particular marker?
DR. COTTON: Yes.
(Peo's 257-B for id = autorad)
MR. CLARKE: Would it be appropriate to mark as next in order that autorad that deals with the probe ms-31?
DR. COTTON: Yes, but there are two of them and you might want to distinguish--distinguish them by their development date.
MR. CLARKE: Okay. As far as c then, what date should we attach to that?
DR. COTTON: 10/11/94.
(Peo's 257-C for id = autorad)
MR. CLARKE: And is that date actually on that particular autorad?
DR. COTTON: Yes.
MR. CLARKE: All right. And with respect to the second autorad dealing with this genetic ms-31, what date is it?
DR. COTTON: 11/1/94.
THE COURT: All right. That will be d.
(Peo's 257-D for id = autorad)
MR. CLARKE: With regard to e, would it be appropriate that that be the particular genetic marker that is the autorad resulting from the test of the genetic marker ms-43?
DR. COTTON: Yes.
(Peo's 257-E for id = autorad).
MR. CLARKE: And that must leave us one genetic marker. Is that g-3?
DR. COTTON: We have two left, g-3 and ynh-24.
MR. CLARKE: So f would be g-3.
(Peo's 257-F for id = autorad)
DR. COTTON: Yes.
MR. CLARKE: And g would be ynh-24?
DR. COTTON: Yes.
(Peo's 257-G for id = autorad)
MR. CLARKE: Are these letters and numbers simply designations for these different genetic markers?
DR. COTTON: Yes.
MR. CLARKE: All right. Then with the Court's permission what I'm going to ask the witness to do is, first of all, to look at these autorads in the order that they have been marked by projecting them on the elmo machine and then having the Court--I'm sorry, having the witness describe item 78 and its results.
THE COURT: All right.
THE COURT: Counsel, for the purposes of this hearing, what I'm interested in is how do we determine that it is a mixture and then my next question is once I come to the conclusion that there is a scientific basis for determining that there is a mixture, the next thing I'm interested in is why shouldn't I require a statistical analysis or statistical significance factor attached to that conclusion that the party--relevant parties aren't excluded based upon the comments of the NRC at page 59?
MR. CLARKE: I understand.
MR. NEUFELD: Your Honor, just to save time, we will stipulate that it is a mixture so you can get right on to the second issue if you want.
THE COURT: I would like to see it.
MR. NEUFELD: Okay.
MR. CLARKE: All right. Dr. Cotton, could you start with the cocktail then, exhibit 257-A, I believe.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Mr. Clarke.
MR. CLARKE: Yes. Thank you, your Honor.
MR. CLARKE: Dr. Cotton, can you now see this particular autorad 257-A, the cocktail?
DR. COTTON: Yes, but it would be easier if I could come down there.
MR. CLARKE: All right. Then with the Court's permission then could the witness come down so that she can view the projector screen and if necessary use the point maker?
MR. CLARKE: Now, Dr. Cotton, without getting into detail about exactly what is on this autorad in terms of items other than 78 and the known samples, is this the particular autorad that would have been the first one developed in your examination using RFLP typing of item 78?
DR. COTTON: Yes, it was.
MR. CLARKE: Now, as far as the--as the results that are shown there, do they demonstrate the existence of a mixture?
DR. COTTON: For item 78 they do.
MR. CLARKE: How do you know that?
DR. COTTON: If you count up the number of bands, if I remember correctly in this cocktail there are eleven. The cocktail is a group of four probes, so if you expect to see two bands maximum with each of four--with each probe, then for a single person with a group of four you would expect to see eight.
THE COURT: Here we have eleven?
DR. COTTON: And here we have eleven.
THE COURT: And they appear to be of differing intensities?
DR. COTTON: Yes. You can see that the lower three bands are much different in intensity than the upper bands--than the band above them and that is the second clear indication that you have a mixture there.
MR. CLARKE: Now, with regard to this initial autoradiograph, and you have described how you are able to determine a mixture, were you able to make any comparisons with known individuals who are also shown on this autorad?
DR. COTTON: There were--essentially you are making comparisons with all the known individuals on the autorad and two of the known individuals on the autorad are consistent with being contributors to item 78.
MR. CLARKE: Who are those two individuals?
DR. COTTON: Nicole Brown and Ronald Goldman.
MR. CLARKE: Now, with respect to these--and you have identified three lower bands as being less in intensity than the remaining bands?
DR. COTTON: Yes.
MR. CLARKE: Are those, based on this initial autorad, and I'm referring to the three bands, the three less intense bands, are they attributable to one person or the other?
DR. COTTON: Yes, they are attributable to or consistent with Mr. Goldman.
MR. CLARKE: Are they consistent or inconsistent, that is, the three bands again, with Nicole Brown?
DR. COTTON: They are inconsistent with Nicole Brown.
MR. CLARKE: Based on this first test or first typing process, using this RFLP method, what conclusions were you then able to reach?
DR. COTTON: For that sample, the conclusion would be that you do have two people there and the possible contributors from the known individuals that we have would be the major amount of DNA coming from or consistent with Nicole Brown, and the minor amount of DNA consistent with some of the bands in Mr. Goldman's pattern. There are not all of his bands there in this cocktail; there are only three.
MR. CLARKE: Is this feature of difference in intensity something that you have experienced in the past in your case work?
DR. COTTON: Yes. It is not at all unusual to see this kind of situation.
MR. CLARKE: Now, do you in fact go further and look at these genetic markers individually?
DR. COTTON: Yes.
MR. CLARKE: All right. First of all, while the cocktail autorad, 257-A is on the projector, are there any further features about this autorad that are significant as far as determining the existence of this mixture and who may or may not have contributed to it?
DR. COTTON: No, I think we've covered them.
MR. CLARKE: All right. Then your Honor, I would like to use 257-B, if I could.
THE COURT: All right. Mr. Clark, at this point I'm persuaded that there is a scientific basis for determining the mixtures here and from what I have learned so far there is a basis to determine that there is an ability to differentiate contributors.
MR. CLARKE: All right.
THE COURT: All right. So let's cut to the chase.
MR. CLARKE: Okay. Actually, perhaps I can do it in just a very short form by asking the witness.
MR. CLARKE: With respect to the remaining autorads that deal with these genetic markers individually, what information, that is what further information, if any, did they provide you in interpreting the existence of this mixture and who may or may not have been a contributor to it?
DR. COTTON: In using the individual films, there is a small additional amount of information. One is on the ms-1 film there are four bands seen. Two are consistent with Nicole Brown and two are consistent with Mr. Goldman, and one of those bands that is seen on that film is not visible on this cocktail. That brings the total number of bands consistent with Mr. Goldman to four and that is the total number of bands through all the testing on 78 that were consistent with Mr. Goldman. There is--I think if I remember correctly, one other piece of information on one of the other probes where you can--you see again one of the three bands that you saw initially and that may be the g-3 probe, although I would have to check to be sure, so you can identify one of the three bands from the cocktail as coming from a specific probe, one of them coming from ms1, one from another one, I think it is g-3. That leaves you a third band on that cocktail that you can't identify which probe it came from and it adds the ms1 individual film, adds a fourth band, giving you a partial pattern of a second person.
MR. CLARKE: All right. Perhaps you could retake the witness stand, Dr. Cotton.
DR. COTTON: (Witness complies.)
THE COURT: Mr. Clarke, let me interrupt you. Mr. Shuman, what article are you reading right now?
MR. SHUMAN: An article about DNA.
THE COURT: All right. I seem to see a picture of the Defendant as you turned it over; is that correct?
MR. SHUMAN: Yes, an article--
THE COURT: All right. While the jury is here, don't do that.
MR. SHUMAN: I will make sure I put it away.
THE COURT: Thank you. Mr. Clarke.
MR. CLARKE: All right. Dr. Cotton, with respect to this mixture as you have described it, you ultimately rendered conclusions about item no. 78 that you placed in your report; is that right?
DR. COTTON: That's right.
MR. CLARKE: What conclusions were reported?
DR. COTTON: We reported that the DNA banding pattern--that the DNA banding pattern from item 78 consisted of two separate patterns. One matches Nicole Brown and there are four bands remaining. Those four bands match four of Mr. Goldman's pattern. And that Mr. Goldman could not be included or definitively included or definitively excluded as the donor of those additional four bands.
MR. CLARKE: With respect to the match between eight of the bands on item 78 and Nicole Brown, did you report a frequency to describe approximately how common or how rare those characteristics shared by item 78, that is, those eight bands and Miss Brown were?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you also report an approximation of the frequencies of the characteristics shared by the additional four bands with Mr. Goldman?
DR. COTTON: No, we did not.
MR. CLARKE: Why not?
DR. COTTON: Because we only had four bands and clearly do not have a complete banding pattern, then the result is basically inconclusive with regard to Mr. Goldman, and we get that based on our opinion that the result was inconclusive. An additional frequency for those bands would not be necessary--we wouldn't normally do that.
MR. CLARKE: Would it be, in your opinion, appropriate to report frequencies for those four additional bands that could have come from Mr. Goldman?
DR. COTTON: There is nothing wrong with doing it. It--it, however, in my opinion, regardless of whether or not you attach a frequency to those four bands, it is still an inconclusive result and therefore attaching that frequency seems somewhat non-helpful.
THE COURT: What frequency calculation did you make for Nicole Brown Simpson?
DR. COTTON: We made a usual frequency calculation for all of the bands that are consistent with her using the frequencies for each band for each probe in the usual multiplication manner.
THE COURT: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: The Court addressed and you probably heard the Court address the NRC report and calculating frequency data?
DR. COTTON: Yes.
MR. CLARKE: You have--well, first of all, you are familiar with the NRC report?
DR. COTTON: Yes.
MR. CLARKE: And have you read it previously?
DR. COTTON: I have read it many times.
MR. CLARKE: With regard to the NRC report and its discussion of population frequency data, what does it say about calculating frequencies for a situation like Mr. Goldman's four-banded pattern?
DR. COTTON: Mr. Clarke, I didn't read that overnight, so I can't tell you exactly what it says.
MR. CLARKE: Okay. With respect to this type of reporting, in other words, should a frequency in your view be reported for this material? You have described how you didn't do that. You have described also the fact that it can be done. Let's shift your attention to PCR testing. First of all, was PCR typing conducted on material from this same stain?
DR. COTTON: Yes.
MR. CLARKE: With what type of results? Without getting into the actual numbers for each genetic marker, can you tell us what those results revealed?
DR. COTTON: There is clearly a mixture based on the PCR results also.
MR. CLARKE: And how do you reach that conclusion?
DR. COTTON: Umm, if I am remembering correctly, for at least one of the markers there are three alleles and again get more than two, there you have a strong indication you have a second person.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Or more than one?
DR. COTTON: Yes, or more than one, sure.
THE COURT: All right.
MR. CLARKE: With regard to those then, in that mixture were you able to determine whether or not individuals in this case, that is the known samples, any of them could be excluded or included?
DR. COTTON: Yes, we were.
MR. CLARKE: With what results as to this particular item and based on PCR typing?
DR. COTTON: The results are basically the same as the RFLP, that Nicole Brown and Mr. Goldman can be included; Mr. Simpson is excluded.
MR. CLARKE: As far as these individuals and their ability to be included, what about assigning population frequency estimates to that? How do you feel about that?
DR. COTTON: We didn't assign any population frequency estimates to that. The signals on the dot-blot are not sufficiently differentiated that you can say these two alleles must be from the major contributor and these--and this other one or two from the minor contributor. You can't really tell this apart on the PCR result, so we didn't attach any frequency to the result at all.
MR. CLARKE: So there was a different situation than the RFLP results where there was clearly a difference in intensity?
DR. COTTON: That's right.
MR. CLARKE: May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: As far as these results, and let's take them in total now, the RFLP results as well as the PCR-based results, do they provide you any additional information about whether or not it would be appropriate to basically sum up frequencies to describe the significance of these mixtures or these alleles contained in these mixtures?
DR. COTTON: Actually, it is a little easier, I think to think about them separately as opposed to together.
MR. CLARKE: Okay.
DR. COTTON: The PCR mixture, the signals indicate there is a mixture, but it is not--you can't differentiate one contributor from the other. In that case it would not be inappropriate to basically take--do a calculation that says what's the sum of every possible contributor to this mixture. On the RFLP results, however, the signals are so well differentiated and that I think it would be very much understating the strength of the data to do that type of calculation for the RFLP result.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Would it be understating it not to provide any frequencies to describe these mixtures or this mixture?
DR. COTTON: I don't see any reason not to provide a frequency for the bands that are consistent with Nicole Brown, that they are so much more intense than the four additional bands. I don't see that calculating a frequency for those four additional bands adds a lot. That is just my opinion.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Thank you.
THE COURT: Mr. Neufeld, any questions?
MR. NEUFELD: One moment, your Honor.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Do you have the original?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
CROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Dr. Cotton, as a rule at Cellmark diagnostics when you receive samples to do DNA testing you are limiting your assessment of the evidence to the--to the DNA itself; is that correct?
DR. COTTON: Generally, yes.
MR. NEUFELD: And you are there to basically to do two things: One, determine whether bands are present, or dots, in the case of PCR typing, and two, if they are present, to estimate the frequency or rareness of that particular pattern; is that correct?
DR. COTTON: That's the normal progress of the analysis, yes.
MR. NEUFELD: Well, I mean you are not supposed to have any of the biases or other influences that, say, detectives working on the case would have? You are simply looking at it in a purely scientific fashion; isn't that right?
DR. COTTON: We are giving our estimation of what the data says.
MR. NEUFELD: And when you look at the--and when you give your estimation of what the data says, you are to do that in a way that is not biased or influenced by other non-scientific evidence in the case; isn't that right?
THE COURT: Mr. Neufeld, this is not helpful to me.
MR. NEUFELD: All right. Well, your Honor, I believe actually it will be helpful to you because it will give you a context in which to understand her impression of the autorad.
THE COURT: Counsel, I understand completely the context. I want to know why this is your motion to require the Prosecution to provide statistical significance, calculations for the mixtures. That is all I'm interested in.
MR. NEUFELD: All right. Can you please put up--light up the cocktail.
(Brief pause.)
MR. NEUFELD: Can you see it from where you are?
DR. COTTON: I would actually rather step down there, if you don't mind.
MR. NEUFELD: Please do.
DR. COTTON: (Witness complies.)
MR. NEUFELD: Now, one of the things that you were talking about before under Mr. Clark's questioning was the disparity in the intensity of certain bands as an indication of possible different sources; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: All right. Would you agree, when you look at the bands, first of all, on item 78, that if we count from the top there is a--it is difficult do see on the overhead, your Honor, but beneath the first band are there two bands very, very close together?
DR. COTTON: Yes.
MR. NEUFELD: That appear almost as--on the overhead as a single large blob, so to speak?
DR. COTTON: I don't think it looks like a single large blob. It looks like a--do you want me to use the pointer thing?
MR. NEUFELD: Please do. That will be great. Or at least point out the two bands that I'm referring to.
(Brief pause.)
DR. COTTON: Okay. Now, are you talking about these two right here?
MR. NEUFELD: That's right.
DR. COTTON: Okay. I see two bands there.
MR. NEUFELD: All right.
DR. COTTON: And the upper one is less intense than the lower one and a little bit less intense than the very top one.
MR. NEUFELD: Okay. Did you make a determination as to that--the less intense band of the two bands that are very close together, whether that is consistent--consistent with bands for Nicole Brown Simpson or for Ronald Goldman?
DR. COTTON: I believe on the--using the individual probes following the cocktail, that this band is consistent with Nicole Brown.
MR. NEUFELD: Okay. And, umm, would you agree that that light band is considerably less intense than the band directly beneath it?
DR. COTTON: Yes.
MR. NEUFELD: And the band directly beneath it is consistent with Ron Goldman, is it not?
DR. COTTON: No, I don't think so. We are talking about this darker one right here, (Indicating).
MR. NEUFELD: Yes. Go across to the column which has Ronald Goldman's pattern in it.
DR. COTTON: Yes.
MR. NEUFELD: Do you see a band in approximately the same location?
DR. COTTON: Yes, I do.
MR. NEUFELD: Okay. Now, would you agree that there is differing intensity between the band that you just described as being above that band in item 78's lane and some of the other bands that you attribute to Nicole Brown Simpson or you say are consistent with Nicole Brown Simpson?
DR. COTTON: Yes.
MR. NEUFELD: Okay. So in other words, even within the same individual, you can observe on this lane bands of differing intensities; isn't that correct?
DR. COTTON: Yes, that's right.
MR. NEUFELD: And again, if you go down to the next band, that is a band that you believe was consistent or in the same position as bands in the Nicole Brown Simpson's lane?
DR. COTTON: Yes.
MR. NEUFELD: And then you go down one more and that is another band that you believe is consistent with Nicole Brown Simpson?
DR. COTTON: Yes.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: New and would you agree that that band that is attributable to Nicole Brown Simpson or say is Nicole Brown Simpson also has a differing intensity other than bands that you say are consistent with her profile?
DR. COTTON: It looks slightly different up here, (Indicating). If you want me to give you the best judgment, I might want to look at it here on the light box for just a second.
MR. NEUFELD: Please do.
DR. COTTON: I would be happy to look at the copy as opposed to taking the original off the thing.
(Brief pause.)
MR. NEUFELD: And so now that you have had a chance to look at it on the light box, Dr. Cotton, would you agree that that other band which I just called your attention to which you say is consistent with bands coming from Nicole Brown Simpson, that that, too, is less intense than bands above and beneath it which you will say are consistent with Nicole Brown Simpson?
DR. COTTON: Yes, slightly.
MR. NEUFELD: Okay. And now also while you are there, could you take a look at the lane next to it, item 52.
DR. COTTON: Yes.
MR. NEUFELD: Do you see that? All right. And a moment ago you said that one of the--
THE COURT: Refresh my recollection. What is item 52?
MR. NEUFELD: Item 52 is one of the drops at Bundy. In fact, it is the drop that is closest to the alleyway, your Honor.
THE COURT: Okay.
MR. NEUFELD: That is what they say it is anyway.
THE COURT: All right.
MR. NEUFELD: All right.
MR. NEUFELD: And item 52 and the banding pattern you believe represents DNA donated by one person; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree that even though you say it is from one person, that as far as band intensity goes, that the bands--that the three bands--the first three bands at the top are considerably fainter than the three lower bands?
THE COURT: Mr. Neufeld, what has this got to do with the mixture?
MR. NEUFELD: What it has to do with the mixture is one of the criteria that this witness was using to try and disaggregate the picture and give therefore a frequency for a complete profile as opposed to using the NRC method of aggregating those frequencies, was her opinion that you can rely on the fact that there is a differing intensity in the bands.
THE COURT: All right.
MR. NEUFELD: So I am just--
THE COURT: That is pretty clear, isn't it? That is what she said.
MR. NEUFELD: She said it, but what I'm saying is that the evidence here belies that position as a criteria for making that distinction in a scientific fashion. That is the point.
THE COURT: All right. Anything else from this witness?
MR. NEUFELD: Yes.
MR. NEUFELD: Now, you said that you are--you have read the NRC report many, many times?
DR. COTTON: I have, but--
MR. NEUFELD: Okay.
DR. COTTON: I did not read it last night.
MR. NEUFELD: All right. Well, there is a sentence in the NRC report which says that: "if a suspect's"--and I quote--"if a suspect's pattern is found within the mixed pattern, the appropriate frequency to assign such a match is the sum of the frequencies of automatic genotypes that are contained within the mixed pattern," unquote. All right?
DR. COTTON: Yes.
MR. NEUFELD: No. 1, have you ever seen any scientific publication which contradicted that approach to aggregating genotypes for mixed stains?
DR. COTTON: I don't recall seeing a specific scientific publication that has addressed that issue, other than the NRC report.
MR. NEUFELD: So I take it then your answer is there is no scientific literature that you are aware of that would contradict--
DR. COTTON: That I am aware of.
MR. NEUFELD: Okay. One moment, your Honor.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And one last thing, Dr. Cotton. Just so I'm clear on this, by your own remarks in response to Mr. Clarke's questions, what you are saying is that as to the PCR profiles, though, you would agree that the appropriate approach is to aggregate those genotype frequencies?
DR. COTTON: If one is going to put a number associated with that data, then that would be the appropriate approach.
MR. NEUFELD: Okay. By the way--no, nothing else at this point.
THE COURT: Mr. Clarke, anything further for Dr. Cotton?
MR. CLARKE: Yes. May I?
THE COURT: Briefly.
REDIRECT EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Cotton, with regard to these PCR results, do you feel it is appropriate to assign numbers to mixtures?
MR. NEUFELD: Objection as to what she feels.
THE COURT: Overruled. Goes to her professional opinion is what I assume the question is.
DR. COTTON: Yes. It is perfectly appropriate.
MR. CLARKE: In terms of your actual reporting, why didn't you do that?
DR. COTTON: We felt that simply stating that these individuals were not excluded was also an appropriate way to report that data. When you are reporting data, there can be very legitimate differences from one laboratory to the next and there are some things where there is no exactly right or exactly wrong way to do it. That was the method we chose. There is also nothing wrong with giving a composite frequency for all contributors to that or all possible contributors to that set of types.
MR. CLARKE: Just with respect--and I would like to direct your attention simply to the DQ-alpha results on item no. 78. Do you recall those?
DR. COTTON: Umm, if you--you can ask your question, but I might need to look at them.
MR. CLARKE: All right. Do you have before you in one of your notebooks, the actual results, PCR-based DQ-alpha results?
DR. COTTON: Are you thinking about looking at the strips or just the types?
MR. CLARKE: Just the types that were detected.
DR. COTTON: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
DR. COTTON: Okay. I've got the right page.
MR. CLARKE: All right. Your Honor, with the Court's permission I'm simply going to ask, and I think the DQ-alpha results are illustrative, ask the witness to write down were the summing process occurs, all the different types that would be involved in it, because I think that is probative.
THE COURT: All right. Briefly and quickly.
(Brief pause.)
MR. CLARKE: Dr. Cotton, with regard to the DQ-alpha results, can you describe for the Court each of the various types that could have contributed to this sample, as the Court has expressed an interest in this type of summing process?
DR. COTTON: Well, we can give an example. If I miss a type somewhere in there, we will have to let me think about it, but I will get--I can give you the idea.
MR. CLARKE: Okay.
DR. COTTON: Do you want me to just say it or did you want to write it down?
MR. CLARKE: Actually I was going to have you draw it on the diagram.
THE COURT: I don't think you need to do that.
MR. CLARKE: Okay.
THE COURT: I will listen carefully.
MR. CLARKE: All right. With regard to the various types, would it then be the case--and first of all, what are the results on item 78, just DQ-alpha?
DR. COTTON: There is a 1.1, a 1.3, a 4 and there could be in there a 1.2 and you can't prove that it is there or prove that it is not there, so for purposes of this it would be prudent to include that as a possible fourth type, so let's include the 1.2.
MR. CLARKE: So that is a feature of the DQ-alpha testing process itself?
DR. COTTON: That's right.
MR. CLARKE: You have to assume under certain circumstances that a type might be there?
DR. COTTON: That's exactly right.
MR. CLARKE: Now, with regard to this summing process, are there then a number of different possibilities in terms of the types of people, of individual people who could have contributed to that sample?
DR. COTTON: Yes.
MR. CLARKE: Do you know how many?
DR. COTTON: Umm, no, I can't tell you how many right off the top of my head. And the other thing is that when you think about how many--wait. Why don't you ask me again, because maybe I'm not getting what you are asking.
MR. CLARKE: Okay. With regard to the field of possible contributors, and I'm only referring to different genotypes--
DR. COTTON: Okay.
MR. CLARKE: --who could have contributed to that sample? First of all, are there more than two possible types that contributed to that sample?
DR. COTTON: Oh, there is many possibilities.
MR. CLARKE: Okay. When you say "many," do you have an approximation of how many without sitting down and actually--
DR. COTTON: No.
MR. CLARKE: Okay. When you say "many," are we talking more than two?
DR. COTTON: Yeah, probably more than ten.
MR. CLARKE: And I believe you said there is, what, only 21 different genotypes to start?
DR. COTTON: That's right.
MR. CLARKE: Okay. Are there then a series of genotypes that may very well have absolutely nothing to do with the contribution of that sample?
DR. COTTON: Yes, certainly.
MR. CLARKE: By summing all of those genotypes, is that, in your opinion, misleading at all?
MR. NEUFELD: Objection as to vague to what is misleading.
THE COURT: Overruled.
DR. COTTON: You mean by summing all the possible genotypes that could have contributed to this grouping of four, is that misleading at all?
MR. CLARKE: Well, let me ask it a different way. If one were to sum all of these genotypes to create a frequency, could you then end up with a frequency that is far more common than the truth as far as that mixture is concerned.
MR. NEUFELD: Objection as to the word "truth."
THE COURT: Rephrase the question.
MR. CLARKE: All right. By summing all of those frequencies could you then obtain a frequency that is far more common than the frequencies of the actual contributors to that stain?
DR. COTTON: Of course.
MR. CLARKE: Is that in your view--well, do you believe the summing process then has a weakness as far as being accurate?
DR. COTTON: The summing process gives you an extremely conservative idea of what percentage of the population could have contributed to these set of types.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: So in this summing process are you including types that may have absolutely to do with item no. 78?
DR. COTTON: Yes, you are. There is something else that nobody has said here, and you--that is, when you do this summing process, you have to make an assumption, do I have two contributors? And then based on two, you would sum everything up. If you said, well, maybe I have three contributors and you summed from that perspective, then your frequency would be still yet more conservative, or if you postulated four contributors, so in doing that summation and doing that calculation, you have to make some assumption I'm going to do the calculation based on two possible contributors and then do it from there. If you did it based on three, it would give you a different result, and then in--also in doing it, you would need to say am I going to assume these people are Caucasian or Hispanic or African American and various combinations would also change the result.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: In your view, scientifically, is it scientifically appropriate to simply conclude from a mixture that you are unable to exclude an individual or individuals?
DR. COTTON: Yes, I think that is scientifically appropriate.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Anything else, Mr. Clarke?
MR. CLARKE: And not misleading in any manner to do so?
DR. COTTON: I don't think it is misleading. Clearly if you say these two people can't be excluded, you might also be saying other groupings of people can't be excluded also. If you get my--that is, if I was asked can these two people be excluded, the answer is no, they cannot. Can other combinations of people also not be excluded? The answer would be that's correct, they can't be--other combinations of people can't be excluded either.
MR. CLARKE: In other words, you feel to describe it in that manner, not just that the people can't--or certain people can't be excluded, but others can't be excluded as well, that that is scientifically appropriate?
DR. COTTON: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. NEUFELD: Very briefly, your Honor.
THE COURT: Briefly.
RECROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: First of all, Dr. Cotton, if you have 21 genotypes and you know which alleles are not present, you could take all the possible heterozygous and homozygous type frequencies for those alleles that are not present and add up the sum of those frequencies, could you?
DR. COTTON: Yes, the ones that could be present plus the ones that couldn't be present equal the total.
MR. NEUFELD: Exactly. So if you start out with a hundred percent and you subtract the genotype frequencies which could not be present--which could not have contributed to that mixture and you subtract that from a hundred percent, you are left with some number, right?
DR. COTTON: Yes.
MR. NEUFELD: That number is the same whether you have two contributors, three contributors or ten contributors; isn't that right?
DR. COTTON: I'm not so sure that that is right.
MR. NEUFELD: Are you sure that it is wrong?
DR. COTTON: No. Some.
THE COURT: That is real helpful.
DR. COTTON: These calculations--
MR. NEUFELD: Well--
DR. COTTON: Sometimes I have to take a piece of paper and work on them and then answer that question. I'm not sure that it is wrong, but I'm not sure that it is right.
MR. NEUFELD: Okay. And just getting back to one other point, other than the NRC report which says that you indeed have to aggregate this data, you are aware of no authority to the contrary?
THE COURT: You have already asked that question.
MR. NEUFELD: Okay. The only point I would make, your Honor--
THE COURT: We are not in argument yet.
MR. NEUFELD: All right.
THE COURT: Anything else?
MR. NEUFELD: No.
THE COURT: All right. Dr. Cotton, you can step down.
DR. COTTON: (Witness complies.)
THE COURT: All right. Mr. Clarke, any comment briefly?
MR. CLARKE: Yes. Just briefly, your Honor. I think under these circumstances, and as the witness has already noted, that under the specific circumstances of the testing involved, and we are looking at item no. 78, in particular, that under those circumstances, particularly when one takes into account the RFLP typing pattern--
THE COURT: Well, Mr. Clarke, let me ask you this: Assuming that because of the manner in which Dr. Cotton just testified, that it is not inappropriate to testify both that these persons are not excluded and on cross-examination be cross-examined as to the population frequencies in an aggregate, don't we come to the same information; you get to do it your way on direct and they get to cross-examine?
MR. CLARKE: I think that goes back to the actual objection itself. The objection was to the board and I think we need to put that back into its proper perspective. That was the objection. My intent is to ask the witness basically what the Court just heard, can you exclude these people? No, I can't. Are there also other types, you know, other groups of people that you cannot exclude? That is certainly true, they have different genotypes, and I think that is an appropriate way of characterizing it and I think if the Defense wants to elicit from the witness frequency data summing it up and obtaining what other number, they have a right to do that because I think that is general redirect examination and cross-examination.
THE COURT: All right.
MR. NEUFELD: Your Honor, two things: Umm, first of all, I would note that I did have a chance last night to look at the cases that were cited by Mr. Harmon, and neither of them stands for the proposition that--you know that already.
THE COURT: I don't--I did not find them to be germane.
MR. NEUFELD: Okay. I agree. Your Honor, the issue here is not what the Defense can do on cross-examination. The issue is, no. 1, what does the law of California compel? And no. 2, what does the scientific literature which is unrefuted state is obligatory on the part of somebody trying to present data? And on both those points there is unanimity that if they wish to present data--
THE COURT: Well, Barney is dicta, counsel.
MR. NEUFELD: Well, I don't think it is dicta in Barney that DNA evidence without a number is meaningless. I think what they are simply saying is that statistics have to be reported. That is also the--frankly, when you read the NRC report, that is one of the most important recurring themes in the entire, you know, 150 pages. And no one has ever--no one is questioning that here. Umm, your own ruling in fact explicitly so held back in April.
THE COURT: In a much different context.
MR. NEUFELD: Well, the NRC report and Barney makes no distinction between mixed stains and stains that allegedly come from a single source. More importantly, your Honor, what we are concerned with is how is the jury going to accept all this? And if on the one hand you have them describing numbers of one in eight billion or one in 25 billion, for a particular profile, with--say it is consistent with one person and then in the very next box they describe a mixture and say that we can't exclude Mr. Goldman or we can't exclude Nicole Brown Simpson, umm, the jury will draw the logical inference that the same kind of statistics apply there as well. It is not incumbent on me as a Defense attorney to debunk that misstatement of the objective data. They have an independent duty not to mislead or confuse the jury long before we ever get to cross-examination. That is what Barney recognizes. That is what the NRC report recognizes. What Robin Cotton has told us is that, yes, those numbers can be calculated and they can be calculated without a great deal of difficult. With regard to the stain on the steering wheel, 29, I sat down and did it in about fifteen minutes. Certainly they can do that for both item 78 and item 29 and those numbers can be presented to the jury. And if they choose not to present the numbers, which is required by the report and part of the decision in Barney, they should simply be precluded from putting on that evidence as to those mixtures. The reason they don't wish to put on those numbers is they want to mislead the jury. If they didn't want to mislead the jury, they would do what is considered scientifically acceptable. Robin Cotton did not cite a single authority to say it is scientifically acceptable to put on DNA evidence of a match in a mixed stain without reporting a frequency. That is the point here. And that is the simple thing we are asking the Court to decide and to compel the People to do, and if there is no authority to the contrary, I don't see why either in logic or law they should be allowed to do something which does have the effect of confusing and misleading this jury. That is all we are asking for. We are not saying they can't present any evidence of mixtures. Let them present them but present them in a fair and impartial way. And what they are doing is misleading the jury. It is not fair and it is not impartial.
MR. CLARKE: Two comments. I can guarantee to the Court that there will be differences between the sides about what those numbers are. I don't think the matter is nearly as simple as Mr. Neufeld would have the Court believe. That is the first observation. The second observation is, and it is interesting to hear the discussions about People versus Barney, because Barney appears to be dying under the weight of authority that has happened since then. As the Court provided to counsel today--
THE COURT: Yes. The met news reports that Barney is mentioned disparagingly.
MR. CLARKE: And as was the case with conventional serology back in the 1980's when Mr. Harmon and I became involved in this area, it appears that by the weight of authority again courts are accepting the original testing the way it was done. So I think to use Barney in the context of a mixture or to use the NRC report in 1995 based on evidence provided in 1990 and 1991 and early `92 to describe where we are today, and to turn that into a compulsion that a witness provide a frequency that the Court has already heard, she doesn't feel is frankly a perfectly fair way of approaching it, as opposed to describing the facts that certain people are excluded, certain people are not excluded. And to allow the Defense to elicit testimony in a manner that they feel is appropriate under these circumstances is, frankly, the criminal justice system by itself.
THE COURT: All right. Thank you, counsel.
MR. NEUFELD: Just one. Just in regard to the cases that you handed out today, I would just like to comment on that and limit it to that.
THE COURT: To the case that was brought out today? All right.
MR. NEUFELD: Just, your Honor, those cases where they distinguish or talk about Barney are only talking about Barney's comments on the product rule versus the ceiling approach. There is absolutely no comments in any of those cases disparaging the need to have some kind of statistical significance to the meaning of DNA, be it in a mixed stain or a single stain, and that is an important point here. That is what we are talking about and I haven't seen any legal authority to the contrary on that.
THE COURT: All right. The Court is going to require the Prosecution to present some type of statistical analysis with regards to the mixtures. All right. Let's have the jury.
MR. CLARKE: Your Honor, may we have a short recess for the witness?
THE COURT: All right. We've been going for a while. Let's take a recess.
(Recess.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Counsel, are we ready to proceed?
MR. NEUFELD: One other preliminary matter which I couldn't articulate because we took that rest break, and that is, your Honor, based on the testimony yesterday by Dr. Cotton--I'm sorry, could the witness just step outside for one minute, your Honor?
THE COURT: No. What?
MR. NEUFELD: All right. Based on the testimony of Dr. Cotton yesterday, your Honor, I believe as a matter of foundation, there is a foundation objection to her--any testimony that she will give in the immediate future as to either a match or a statistical probability for item 78, 56, 52, 47 and 12 for the following reasons: The one thing they still have to--whether or not the Frye issues were deemed waived by the Court, the foundation issues remain, the fundamental foundation issues. And they have to demonstrate when the witness takes the stand that they use the generally accepted methods in this particular case in this particular instance, and--
THE COURT: Well, we haven't gotten to that yet.
MR. NEUFELD: She did. She testified to the methods she used yesterday, your Honor, and what she testified to was that they have three negative controls that they use in their case work. The first negative control being testing--
THE COURT: I was here. I heard it.
MR. NEUFELD: Okay. What you should know is that we now know from her direct testimony that one of these three negative controls wasn't used at all mainly on the substrates, that the reagent control, that is the very initial control that is used, failed with respect to the various item numbers that I have just given, and that the amplification blank, which is the only remaining control, occurs further on down the line, such that if the initial control fails, that trumps any subsequent control, so consequently you have a failure of the controls or an absence of the control. And you have the laboratory in this particular case not using the generally accepted methods to arrive at a result. And so on purely foundational grounds we would object to the introduction of any evidence as to those particular items.
THE COURT: Mr. Clarke.
MR. CLARKE: Yes. I think the testimony has already demonstrated the witness described the procedures used, they were correct procedures in her opinion, and in fact as I think the testimony will--already has demonstrated, that complies with the Court's order dated several weeks ago about what was necessary in terms of the foundation and the use of correct procedures. The witness has described her opinion and the Court has heard no contrary evidence up to this point.
THE COURT: All right. The objection is overruled subject to a motion to strike at a later time. All right. Let's have the jury.
(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. Dr. Cotton, would you resume the witness stand.
Robin Cotton, The witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: Let the record reflect we have now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: My apologies to you for the late start this morning. I had a few matters that I had to take up out of your presence, and as you can tell from the nature of the testimony, some of these things involve some rather complicated scientific matters that I had to decide before further evidence was presented to you, so I apologize to you for the delay in getting started. We also had a hard time rounding up all the necessary parties before getting started this morning. Also, I understand we had some modifications to cinema 1 and cinema 2. All right. I take it they are acceptable? All right. You might want to write a thank you note to the king.
JUROR NO. 19: Who?
THE COURT: Also, counsel, I have modified the jury box slightly. I have asked everybody in row no. 1 top slide down one seat so that juror no. 1 is protected by the monitors from the errant display boards. All right. That is for juror no. 1's protection. All right. Mr. Clarke, you may resume.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Good morning again, ladies and gentlemen.
THE JURY: Good morning.
DIRECT EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Dr. Cotton, just briefly, you had described the fact that Dr. Blake had actually performed this cutting process on I believe it was six of the evidence items yesterday?
DR. COTTON: Yes.
MR. CLARKE: With regard to those cuttings, were you present when they took place?
DR. COTTON: Yes, I was.
MR. CLARKE: And observed what took place?
DR. COTTON: Yes.
MR. CLARKE: In your opinion did Dr. Blake do anything that might contaminate those samples by his cutting process?
DR. COTTON: No.
MR. CLARKE: Now, have you, since we broke yesterday, had an opportunity to look at one of the those boards that I showed you yesterday that dealt with the chain of custody of certain items received in your laboratory?
DR. COTTON: Yes, I have.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Referring you to that board that is marked People's exhibit 209, did you have a chance to look at in particular the four items that have your laboratory's name labeled at the far right, which are items 7, 12, 49 and 56?
DR. COTTON: Yes, I did.
MR. CLARKE: And does that board accurately reflect your laboratory's receipt of those four items on the day after the date on the board which in the case of each of four is April 3, 1995?
DR. COTTON: Yes. Our records reflect that we received them the day after the date on the board.
MR. CLARKE: All right. Very good. Now, Dr. Cotton, if I could--and I believe we were about to get started on that when we recessed yesterday--with respect to the autorad that has already been marked People's exhibit 246 and which we have made copies or had prepared copies for each of the jurors, which I believe are marked People's exhibit 256, that autorad in fact contains the known DNA from the three parties in this case; is that right?
DR. COTTON: That's right.
MR. CLARKE: That would include Mr. Simpson?
DR. COTTON: Yes.
MR. CLARKE: Nicole Brown?
DR. COTTON: Yes.
MR. CLARKE: And Ronald Goldman?
DR. COTTON: Yes.
MR. CLARKE: All right. Does that autorad demonstrate any differences in their DNA patterns?
DR. COTTON: Yes, it does.
MR. CLARKE: Does that autorad also have a particular item of evidence that was tested at the same time?
DR. COTTON: Yes.
MR. CLARKE: What item is that?
DR. COTTON: I believe it is item 56.
MR. CLARKE: Is that a shoeprint--I'm sorry, is that actually a blood-stained shoeprint?
DR. COTTON: That is what you have conveyed to me.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, your Honor, it would be my request to hand out, re-hand out these copies for each of the jurors so that they can utilize that during the witness' testimony about this particular x-ray.
THE COURT: Yes. Proceed.
(Brief pause.)
MR. CLARKE: I am actually looking for the earlier marked one, 246. I'm wondering if perhaps it is in the pile with 256.
THE COURT: I don't think so.
(Brief pause.)
THE COURT: I just sent Mrs. Robertson on another errand so--
MR. CLARKE: All right.
THE COURT: 256?
MR. CLARKE: 246.
THE COURT: 246.
(Brief pause.)
THE COURT: All right. Mrs. Robertson has the original.
MR. CLARKE: Thank you. Dr. Cotton, what I'm going to ask you to do--and first of all, have you had an opportunity to see what these x-rays look like when they are projected on to the upper screen?
DR. COTTON: Yes, I have.
MR. CLARKE: With respect to 246 then would it assist you in describing the results on this particular x-ray to have it on the screen so that you can point out certain things?
DR. COTTON: Sure.
MR. CLARKE: All right. With the Court's permission then I would like to display People's 246.
THE COURT: Proceed.
MR. CLARKE: And Dr. Cotton, can you step down here and would that aid in your ability to point out particular items on this particular x-ray as well as by using the point maker?
DR. COTTON: Yes. And maybe if we have one other copy, or the original, we could play it on the small light box also.
MR. CLARKE: All right. Let me ask you a couple questions. You have the original x-rays in this case?
DR. COTTON: I have the original autorads in this case.
MR. CLARKE: And when we say autorad and x-ray--
DR. COTTON: X-ray.
MR. CLARKE: --is that the same thing?
DR. COTTON: Yes.
MR. CLARKE: Okay. You have the originals and then have there been copies provided to both sides in this case?
DR. COTTON: Yes.
MR. CLARKE: All right. With respect to these originals versus the copies, what differences are there, if any?
DR. COTTON: The copies may have--for the most part there is no differences. When a band is very light, the copy may not show that band quite as clearly as the original, and the only way to determine that is to hold them side-by-side and see if you can see it as clearly on a copy as you can on the original.
MR. CLARKE: All right. Do we have in fact a small light box also in Court on counsel table?
DR. COTTON: Yes.
MR. CLARKE: And would it assist you to use that light box to look at the original just in case there are any differences between the original and the copy?
DR. COTTON: Well, actually what I'm concerned with is how it looks up on the screen as opposed to how it would look on the light box, so that is why that helps me to have the light box there.
MR. CLARKE: All right. Then with the Court's permission we will adopt that procedure and be able to display to the jury on the projection screen itself.
THE COURT: All right. Proceed.
MR. CLARKE: All right. Dr. Cotton, if you could, could you obtain the original of what has been marked People's 246, but also the copies, People's exhibit 256.
DR. COTTON: Here is the original for this film.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, with the Court's permission, prior to discussing, and there aren't very many samples on these autorads, I would like to at least show briefly to the jury the particular item of evidence that has been described by previous witnesses.
THE COURT: Referring specifically to 56?
MR. CLARKE: Exactly, and I believe that particular photo board is exhibit 165.
THE COURT: All right.
(Brief pause.)
MR. NEUFELD: Your Honor, I would only make the objection, subject to a clarification from the Court, that again on the chain of custody, that she is not testifying that it is that item.
THE COURT: Correct.
MR. NEUFELD: I would just simply ask for that instruction from the Court.
THE COURT: I think that is apparent already from the testimony.
MR. NEUFELD: I'm sorry?
THE COURT: It is apparent already from the testimony.
(Brief pause.)
MR. CLARKE: And referring specifically on this exhibit, your Honor, which I believe is People's exhibit 165, in particular to the photograph on the top row, three photos from the left labeled "item no. 56."
MR. CLARKE: Now, Dr. Cotton, with regard to this particular x-ray, first of all, is this an x-ray that was developed following your use of this RFLP typing process?
DR. COTTON: Yes, it is.
MR. CLARKE: Okay. Could you describe for us what this x-ray shows in broad terms? In other words, how is it oriented, what are the samples on it and so forth?
DR. COTTON: Okay. Let me just start with telling you that this is the right way to hold it. The dark lettering, or the dark background to the lettering, at the top I want to be up. The lettering across the top is simply the number of the gel that these samples were loaded on. "f" is on there because it is a forensic case and not a paternity case. If it was a paternity case, that would be a "p." 08/09/94 is the date the gel was run on and "15a" is simply the number of the gel tank that the gel was run on. And this lettering is actually essentially burned into the film, that is, it is exposed at the time the film is made, so it can't be erased or taken off in any way, and this is our permanent record that this film goes with a particular case. Now, on your films, although it is not shown on the screen, you can see that there is handwriting at the bottom and that handwriting at the bottom is written on here by the analyst who is doing the test, and he or she is taking that record from the case folder where it is listed, the order that the samples were loaded into the gel, and so these are our sample numbers across the bottom, and then the case number and the gel number is written again and then you see the letters "SLC." That refers to the fact that this film is made with a group of probes and in the lab we call it a cocktail, so it is that--that stands for single locus cocktail. The reason--if you remember in the example that we have talked about so far, we keep talking about for one genetic location you will see two bands. Well, obviously here, and now you can sort of move to the screen, you see that there are multiple bands on--in many of the lanes here, and that is because four different probes were added to this film. This is done in our lab. It is the first addition of probes. And then--and we haven't mentioned this before. Once you add probes to a membrane and you allow them to bind and you get your x-ray film off, you can strip those probes away without moving--removing very much of the DNA on the membrane and come back and then do another probe on that membrane, get another film, finish that, strip that probe off and come back and do it again. And depending on the amount of DNA that you have on that film, you may be able to do that many, many times.
MR. CLARKE: Let me stop you for a moment, Dr. Cotton. When you have described that this particular x-ray includes four different probes done at once--
DR. COTTON: Yes.
MR. CLARKE: --why do you do that? Why don't you just do one at a time?
DR. COTTON: If we are comparing evidence samples and known samples and the evidence and the knowns are not consistent, that is, the known people that we have for a case are excluded from being donors of the evidence, that becomes apparent immediately on having a group of four probes like this. So it allows us, if in fact the result is an exclusion, it allows us to see that very clearly right away. We report that right away and then we don't go on any further until we are requested. And we've done our film in the lab this way from the beginning. Most other labs just do them one at a time. This is an instance where there isn't a right or a wrong. This isn't better or worse than anybody else's; it is just customary at Cellmark. Okay. So the next important thing to notice, and I will--we will go to the pen here, okay, this lane on the far left, the second lane in, this middle lane and the two lanes on the right are what are referred to as markers. They are one of the--one of the types of controls that is on an RFLP test. Each--let's talk about this marker first, (Indicating), because it is the easiest to visualize. Each one of these bands is from a DNA fragment whose size is exactly known. The marker is purchased from a biotechnology company, and although I'm not going to remember the exact sizes, I could easily go look them up. And in--as a very close approximation, this band is 2000 base pairs. This one, (Indicating), is 3000--whoops. Let's undo that. So we have 2, 3, 4,000, 5000, 6000, 7000 up here, (Indicating), 8000, 9, 10, 11 and 12. The purpose of that marker is to later on use that with the computer imaging system to help make an estimation of the fragment sizes in the other samples. And as long as we are talking about that, let's just use an example. If this is 2 and this is 3 and this is 4, this band, (Indicating), in Mr. Goldman's pattern is clearly between 3 and 4, and remember that what we are concerned about is the samples were loaded across the top here in about the same positions as the bottom of each of the labels, approximately. And the DNA from each sample moved through the gel, down in this direction, (Indicating), and the smaller pieces would move faster and further through the gel than the longer ones. And that is illustrated again by the marker. Here is this lowest one is about 1600 and then 2000 and so on. So by eye you can make an estimation that this lowest band in Mr. Goldman's pattern is somewhere between 3000 base pairs and 4000 base pairs. Now, the computer system can actually do measurements. The measurements reflect the distance migrated through the gel. And the computer system will then do a calculation that will give you a more precise estimate that you can do just by eye. You don't have to have a computer system to do it. You could measure them yourself and plot it out on a piece of graph paper and your answer would still be quite good. The second marker up here, (Indicating)--well, let me go back to the labels. This marker is labeled 1 KB. It stands for one kilobase. That is each of the bands in that marker is 1000 base pairs larger than the band below it. The second marker is a viral DNA that is commonly used as a marker. It is labeled lambda and really we are only using this top band as a--to give us a band that is larger than 12,000 base pairs. And this top band in lambda is approximately 23,000 base pairs. So this--the combination of this 23,000 base pair and the 1 KB marker is what we are using to estimate sizes. There are two additional samples on this film that does not relate specifically to this case. One of them is over here it is labeled TDS on your film. It is DNA from a blood sample from one of the lab staff at Cellmark. This person has been gracious enough to provide us a blood sample every four or six months or so and we have been using his blood sample as a control sample for a long time. We know exactly what his pattern should look like and we have many measurements of the sizes of the DNA bands in that pattern, and that is an example of one of the controls that I mentioned the other day where we know what this pattern should look like. Should it look different than usual, we would--that is, should the band sizes be different than usual, that would be of concern to us.
MR. CLARKE: Do you ever have to track that person down when you are running low?
DR. COTTON: Well, he is pretty cooperative. And the same goes--the same scenario is true for the two markers, the lambda and the 1 KB. You can see that this 1 KB marker has a very typical appearance with the distance between adjacent bands getting shorter and shorter and shorter as you go up the gel. If that marker didn't have that very typical appearance, it would tell you immediately that something was wrong with the gel that you had used, and so that is just another indication or another example of what I meant when I said you get accustomed to looking at these, you know what they should look like. It has been described either by many measurements or by use in many labs over time, for example, for the marker, that this is what it should be like. There is another control on this film, it is labeled k562. It is DNA from a cell line that you can purchase, and it is a commonly used control in forensic case work for labs all over the country. This control became available after we had already been using the control from the person in our laboratory. We include it on all of our--or some of our gels. It may not be on each one, but when there is room for it, we will run that as well. The three remaining lanes contain the known samples from Mr. Simpson in this lane, (Indicating), from Nicole Brown in this lane, (Indicating), and from Ronald Goldman in this lane, (Indicating).
MR. CLARKE: Let me stop you for a moment, I'm sorry. Dr. Cotton, with regard to that k562 lane, could you point that out again.
DR. COTTON: Right here, (Indicating).
MR. CLARKE: All right. And could you explain just briefly again, what is the purpose of that sample?
DR. COTTON: That sample is simply another control DNA whose pattern, now that we have run it a number of times, is recognizable. We do not in our lab have standard sizes for this lane yet. We still are accumulating numbers for that. So we are not using it, umm, in exactly the same way we are using the TDS, because we do have standard sizes for that, so we are accumulating those standard sizes, but the pattern does look as it is supposed to.
MR. CLARKE: Now, as to the number of these samples, where it is the lambda, the 1 KB, the TDS, referring to the first three lanes on the left, and then the K5--and the additional 1 KB's in the middle and off to the right, as well as the k562, if something goes wrong or doesn't appear correct when you are reading this result, does that kind of turn on a light in your head or what?
DR. COTTON: It alerts you to the fact that something might be wrong. Now, it could be that something is just wrong with that standard sample and that you demonstrate that, but it also tells you something could be wrong with the standard samples and the gel run in that particular case, which then would affect all the samples. So if anything doesn't look right, you would go in and figure out what was the problem, did it affect all the samples in that gel run or is it specific to that particular standard? If possible, even if it was just specific to the standard, you could go back and rerun them. Sometimes if we have a problem with the standard and we can't rerun the evidence--and actually I don't want to be confusing. I'm using "standard" essentially two ways. Usually if it is a known sample, I will try to call it a known sample from a known person. If it is one of our standard markers or the TDS, I will try to remember to refer to it as a standard sample in the lab. If we had problems with a standard sample, such as TDS, and we couldn't rerun the evidence, we might rerun the standard and the known samples from that case to make sure that everything was reproducible. So a problem with a standard doesn't mean you have to dismiss all of the results, but it does mean that you better look at them closely and make sure that everything is okay.
MR. CLARKE: Okay. Referring you, if I can, and let's start with this first lane that is labeled lambda, why is it the bands that are shown there seem to be smaller than the band in the next lane over, the 1 KB? Is "smaller" the right word or not?
DR. COTTON: Are you--okay. You are asking me why are these bands narrower from top to bottom than these bands in the 1 KB lane?
MR. CLARKE: Yes.
DR. COTTON: There are two things that can affect that. One is that there may be more DNA in the 1 KB lane, more total DNA in that lane, than in the lane that has the lambda DNA. We are loading standard amounts. I think that the amount of lambda that is loaded may be less, but I would have to go into the protocol to confirm that. The other thing is that when you look at this kind of difference, whenever you are looking at a larger band versus a smaller band, or a dark band versus a light band, there are many things that can affect that. It--it is a technical enough procedure that a single explanation may not be the only contributing thing to making something darker or lighter. In this case the answer to your question is there are two possible contributing things: One is that there is less DNA in the lambda lane than the 1 KB lane, and the other would be that the amount of p32 in the probe for the 1 KB was more than the amount of p32 in the probe for the lambda and that is something that can also affect how dark or light a particular band is.
MR. CLARKE: As far as this difference in the darkness and lightness and the narrowness of the bands, does that make any difference in your ability to interpret results?
DR. COTTON: On this film in this example it wouldn't make any difference at all. It certainly can make a difference. Bands can be very light. Bands can be very dark and close together, such that you can't make an absolute distinction of whether there is a single band or two very close together, so it can make a difference, but it is not really making a difference on these markers. Let me give you a better example. Let's come over here, (Indicating). You can see that this band in the k562 lane--can I make that stay there? No. What am I doing wrong? How do I make it stay there?
MR. CLARKE: By pushing the button.
DR. COTTON: Oh, right, the button. There we go. Okay. That band, (Indicating), is more intense than the two bands above it, and the band below it. Without going back and looking, I can't remember, but it could be that for the cocktail there are actually two bands there, one identified by one probe and one identified by another, so that you see basically overlapping bands and that is a--I'm just making this up as an example--that is another reason why a band might be darker than the bands above it or the bands below it.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: How do you answer that question or do you answer that question that you have just asked in the course of your further testing?
DR. COTTON: Yes, because as you go through and do each individual probe by itself, you can then in doing that--let's see if we can undo this arrow. Let's--this is--okay. Let's say we went and did each individual probe by itself and we identified that this band and this band, (Indicating), came from the first probe. And then let's say we went back and get another band--I mean, sorry--another probe and we identified that this band and this one over here, (Indicating), came from probe no. 2. And you could go back and do another hybridization and we might see that on the third probe that identified this band and this one, (Indicating), and go back then and do the fourth probe that is part of the group and perhaps the fourth probe would again identify this band and this remaining band, (Indicating). So in the process of doing them each individually, you can define the pattern that you see, which bands came from which genetic location. The cocktail is great for telling people apart. You can see here that clearly Mr. Simpson, Miss Brown, Mr. Goldman all have different overall patterns. To establish more information than that, it is desirable to go back and necessary to go back and do each probe individually. Now, we didn't do that on this film, because the evidence lane doesn't have a banding pattern, so I can't show you that, but on the other film we did do that.
MR. CLARKE: All right. We will return actually to both of those things, the actual evidence on this x-ray, as well as the fact that you did these probings individually on other x-rays as well or other x-rays in addition to that. One more question generally about this x-ray itself. There appears to be some darkening between the bands, for instance, on the third lane labeled TDS; is that correct?
DR. COTTON: Over here you are talking about, (Indicating)?
MR. CLARKE: Yes.
DR. COTTON: You are talking about this background in here, (Indicating)?
MR. CLARKE: As well as in, for instance, the sample that is labeled "n. Brown" at the top as well?
DR. COTTON: Yes, here. All of this, (Indicating).
MR. CLARKE: And to some lesser extent in what looks like two other of the lanes or perhaps three as well; is that right?
DR. COTTON: Yes.
MR. CLARKE: What is that?
DR. COTTON: That is the background that you see as DNA becomes degraded. The more degraded the sample is, the darker this general background becomes, and the longer the exposure, that is, the longer the x-ray film has laid over the membrane to expose, the darker this background will become.
MR. CLARKE: Does that affect your ability to interpret results, the fact of this background?
DR. COTTON: I have certainly seen DNA patterns where the degradation was so substantial that it basically obliterated your ability to see any bands. For the most part, even if there is degradation, you can still see where the bands are, because they are superimposed over it and they are still darker than the background. It can affect your ability to read it. It doesn't all the time.
MR. CLARKE: Does it affect the accuracy of the results themselves?
DR. COTTON: As long as it doesn't affect the ability of the computer imaging system to choose where that band is or your ability to assess that the computer imaging has chosen the band position correctly, then it generally won't affect the results, but if it is dark enough, it will.
MR. CLARKE: Can it, for instance, turn one type into looking like a different type?
DR. COTTON: No, it doesn't do that.
MR. CLARKE: So in other words, this part of the of the testing process doesn't affect your ability to accurately type samples?
DR. COTTON: (No audible response.)
MR. CLARKE: Does that question make sense?
DR. COTTON: No.
MR. CLARKE: Okay. I will withdraw it then. Thank you.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, as far as--the next area I would like to ask you about, Dr. Cotton, is you described briefly how it can be seen that the sample from the three known individuals, Mr. Simpson, Nicole Brown and Ronald Goldman, have different overall patterns. Can you describe that and show that for us, please?
DR. COTTON: Okay. The--let me just take a look at the light box.
(Brief pause.)
DR. COTTON: Remember that we are making the assessment of a pattern by looking at the position of each of the bands as they are distributed from the top to the bottom, so let's just say we have--we have these three people here. Mr. Simpson has three bands that are close together that are almost near the top of the 1 KB ladder.
MR. CLARKE: Let me stop you for just a moment, Dr. Cotton. Perhaps you can clear all of those arrows that you have already done off to the right.
DR. COTTON: Okay. There we go.
MR. CLARKE: Thank you.
DR. COTTON: He has three additional bands lower down, and although you can't see it very well on this screen, there is an additional band down here, (Indicating), which I had to check on the light box to make sure that I remembered that there was one down there. This isn't--this isn't necessarily the optimal way of viewing these, and in the laboratory you would just look at it on the light box and make your decisions based on how it looked laid on the light box like I have it over at the table. So if you make a comparison, we will just compare Mr. Simpson's pattern to the TDS pattern, the TDS pattern also has some close groupings of bands, but they are not in the same position as the groupings that Mr. Simpson has. This lower grouping down here, (Indicating), there is no bands at all, so this pattern is clearly different from the TDS pattern.
MR. CLARKE: Let me stop you for a moment, Dr. Cotton. With respect to Mr. Simpson's DNA we see what appear to be a grouping of three bands and then a little lower down another grouping of three bands and then you described further on, almost all the way down this x-ray as we could see it, then a light band. What can you tell us about why that band would be lighter?
DR. COTTON: We know from many, many--let me just--let me put an arrow right here where I think that light band is, and actually the TDS pattern also has a light band, and that one is right here, (Indicating), in a slightly different position. We know from understanding the gel and understanding how the radioactivity or the probe DNA that is radioactive binds, that in this system and some other systems, but I will just refer to the Cellmark system, when a band is very small it tends to be lighter. You can see that in the TDS control and you can see that in Mr. Simpson's pattern. One of the reasons for that is that the total number of repeats in that small band, remember, the length of the band is defined by how long that repeating sequence is, and the probe is going to bind to that repeating sequence. The total number of repeats available for a probe to bind in a very small band is substantially fewer than a band that is more sizable. That is just another example of a technical reason why you might see bands that are different--differing in intensity.
MR. CLARKE: Incidentally, does Mr. Goldman also have a similar band in that range?
DR. COTTON: Yes, he does.
MR. CLARKE: Perhaps you could point that out.
DR. COTTON: That would be right there, (Indicating).
MR. CLARKE: Now, with respect to those lighter bands, how do they affect your ability to type results accurately?
DR. COTTON: The largest problem that you might have is that you may have two samples that have the same pattern, a known and an evidence, and if you have less DNA for--let's say you have less DNA in the evidence than you do in the known, you can see that if--if you get--if it gets very much lighter, that is those lower bands, if they got very much lighter, you wouldn't be able to see them. So it does happen occasionally that you might be missing a lower band such that your evidence, say, had eight--sorry. Let's say your known had eight and the eighth one was down in this region of the gel, (Indicating), or maybe even in this region, (Indicating), and the evidence only had seven and didn't have one in that region. And that leaves you with two explanations. Either the DNA has--in the evidence actually may have all the bands but you can't see one, or the DNA in the evidence is not--could not be from the same person as the DNA in the known. And you would have to then make some decision about interpretation of that seven--of those seven bands as compared to those eight bands.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, Dr. Cotton, with respect to these three samples, whether it is Mr. Simpson's, Nicole Brown Simpson's or Ron Goldman's, those are known samples? In other words, to your knowledge it was identified where they came from?
DR. COTTON: Yes.
MR. CLARKE: In other words, they came from known individuals?
DR. COTTON: Yes.
MR. CLARKE: Now, I also believe I interrupted you when you were describing the differences in the overall patterns of the three individuals.
DR. COTTON: (No audible response.)
MR. CLARKE: Or had you finished?
DR. COTTON: Well, you could do more. I don't--
THE COURT: Next question.
MR. CLARKE: Yes, definitely, your Honor.
MR. CLARKE: Now, I would like to turn your attention, Dr. Cotton, if I can, to the sample or the lane which looks like it is the fifth one from the left that is labeled "no. 56 print."
DR. COTTON: Okay.
MR. CLARKE: With regard to that sample--and again that stain was put through this RFLP typing possess, correct?
DR. COTTON: Yes, it was.
MR. CLARKE: What kind of results do you see from that particular sample?
DR. COTTON: Zero. I don't see any.
MR. CLARKE: What does that mean?
DR. COTTON: It means that there was DNA in that sample and that DNA was loaded on this gel. It means that the DNA that we loaded on the gel was not human DNA. The probes are specific to human DNA and because we got no banding pattern at all and there was a substantial amount of DNA from that sample, that the DNA from--that we obtained from that sample wasn't human DNA. We have no banding pattern and no conclusion can be made regarding that sample.
MR. CLARKE: All right. Dr. Cotton, I'm going to ask you several questions about that particular sample, but I believe you could answer those from the witness stand, if that would be more comfortable.
DR. COTTON: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: And your Honor, at this time I would like to place on the projector screen the actual photograph of this particular evidence item.
THE COURT: All right. Is that available?
MR. CLARKE: Yes, I believe so.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: This will be 258 or have we numbered this yet?
MR. CLARKE: This I believe is already marked as People's 45-J.
THE COURT: 45-J.
MR. CLARKE: Now, Dr. Cotton, with respect to item 56 before you actually had this sample tested using the RFLP process--and I'm going to clear the arrows--do you go through a particular step with a sample to try to determine if there is human--I'm sorry--if there is DNA present and if so approximately how much?
DR. COTTON: Yes.
MR. CLARKE: How do you do that?
DR. COTTON: After the DNA extraction and before you do the next step, which is the restriction cutting of the DNA, you take a very small portion of your DNA and run it on a very small gel, it is about oh, three inches by four inches, two inches by three inches, something like that. And what that allows you to do is determine whether the DNA is in pretty good condition or whether it is degraded or somewhere in between, and it allows you to make a rough estimation of how much you have. And it doesn't tell you whether it is a mixture and it doesn't tell you whether it is human; it just tells you whether you have some DNA there.
MR. CLARKE: And did you perform that particular step with regard to this item no. 56?
DR. COTTON: Yes, we did.
MR. CLARKE: What did it tell you?
MR. NEUFELD: I'm sorry, your Honor. I would object and just ask for the instruction.
THE COURT: You haven't established the connection of 56 to this item yet, so I will take that as an objection subject to a motion to strike.
MR. NEUFELD: Right.
THE COURT: Proceed.
MR. CLARKE: Could we approach, your Honor?
THE COURT: Proceed.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: With regard to this particular item that was provided to you, item no. 56, what were the results of this test to determine how much DNA was present?
MR. NEUFELD: Again objection for the same reason.
THE COURT: Same ruling.
MR. NEUFELD: All right.
THE COURT: Proceed.
DR. COTTON: When we ran the DNA obtained from item 56 on the mini gel there was clearly DNA there and it appeared to be in good condition.
MR. CLARKE: What does that tell you about your ability to then type that DNA?
DR. COTTON: Right then it doesn't tell you anything.
MR. CLARKE: Okay. Does the result of that test affect what further steps you take in terms of typing that sample?
DR. COTTON: Well, it certainly can. If you have very little DNA or it is very degraded, at that juncture then you might decide that it is not of sufficient quantity and quality for RFLP and that you should then go on and do PCR.
MR. CLARKE: So in other words, you use this step as sort of a guide as to which typing approach, RFLP or PCR, would be the more likely to produce results that give you information?
DR. COTTON: That's right.
MR. CLARKE: With regard to this particular item, did you make a determination of which approach then to try RFLP or PCR?
DR. COTTON: We made a determination to try RFLP and we knew that we had enough sample left over to do PCR, so we went ahead clearly from the film that we shouldn't have--I mean shouldn't have--it doesn't matter that we did it, but it didn't give us any result.
MR. CLARKE: Did the fact that it produced no RFLP result, was that something you expected or was that a surprise of any sort?
DR. COTTON: Well, that was sort of a surprise. Umm, what I haven't mentioned, there is also a test you can do to determine whether you have human DNA, so you could do both your mini gel and a test to determine whether you have human DNA and we routinely do that for PCR samples. We did not do it for this sample before the RFLP. We did do it later on, so because we hadn't done it, we didn't know that that wasn't human DNA and we did proceed with an RFLP analysis.
MR. CLARKE: Now, you described earlier the role that bacteria can play in terms of degrading human DNA; is that right?
DR. COTTON: Yes.
MR. CLARKE: With regard to this particular instance, to what extent can you offer an opinion about the possible role of bacteria?
DR. COTTON: If there was originally human DNA present in that sample, it is substantially degraded and not able to give any--it is so degraded that no RFLP pattern could be obtained.
MR. CLARKE: And to what extent, if any, does--I'm sorry, does bacteria play a role in that or could play a role in that?
DR. COTTON: Well, it can play a role in that. If a sample is deposited on a surface that has a lot of bacteria, then the bacteria may participate in the degradation of that DNA. Bacteria contain many enzymes, many proteins that will break up DNA in a random manner, and therefore, when bacteria is present DNA degradation occurs.
MR. CLARKE: Now, did you subject this same material provided as item no. 56 to you to PCR typing?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you obtain results?
DR. COTTON: I believe we did.
MR. CLARKE: Can you verify that from the materials that you have?
DR. COTTON: Sure.
(Brief pause.)
DR. COTTON: Yes, we did obtain PCR results from that sample.
MR. CLARKE: Do those results then allow you to make any conclusion about whether or not there is human DNA in this sample?
DR. COTTON: Yes, they do.
MR. CLARKE: Why is that?
DR. COTTON: The PCR test also is pretty much considered to be human specific. That is, it will recognize human DNA and you might be able to type a primate, like a chimpanzee or a gorilla, but you can't type other animals, so the fact that we got a PCR type from that sample is a very good indication that there was human DNA present.
MR. CLARKE: So then is it the case, with respect to your RFLP typing that produced no result, that doesn't mean there was no human DNA in that sample?
DR. COTTON: That's right. What it means is that the DNA was so degraded that it was incompatible with giving a result.
MR. CLARKE: As far as bacteria are concerned, do bacteria result in changing the type of a sample, for instance, if bacteria was present in item no. 56?
DR. COTTON: It won't change the type to appear to be another person's type. There is a level of degradation that you could--that you could have in your DNA sample where you would begin losing bands and you would begin losing them at the top. It is not the same as the description I just gave you of not being able to see a band at the bottom, but the phenomenon, the number of the phenomenon is the same. You might have a known sample that had eight bands and you might have an evidence sample that was degraded and had six bands that were consistent with the known but two bands in the known wouldn't--may not be visible in the evidence. You would come--you would have the same--anytime you are missing bands at the top end or the bottom end of a pattern you have the same decision in terms of conclusions. It is either consistent with that person or it is inconsistent with that person, but basically it would have to be from a close relative.
MR. CLARKE: All right. Now, what I would like to do is shift your attention, Dr. Cotton, to a second series of x-rays that you created after testing other evidence. First of all, you have, do you not, with you, x-rays of other RFLP tests in this case other than 56?
DR. COTTON: Yes.
MR. CLARKE: Incidentally, with regard to item no. 56, and that first auto--x-ray, I'm sorry, that you have been showing on the board, did you then, in the case of that sample and those three knowns, go through this process of doing one probe at a time creating additional x-rays?
DR. COTTON: Not with that film.
MR. CLARKE: Why?
DR. COTTON: Because there was--since there was no evidence--since there was no information obtained from the evidence, we didn't go through the process of doing each probe by itself, because there is just no DNA there from the evidence, so there is no--nothing to be gained by doing that.
MR. CLARKE: So there is no reason to go further with regard to that sample?
DR. COTTON: That's right.
MR. CLARKE: Now, did you also receive--well, let me rephrase. When you conducted this RFLP typing, again did you do it on other samples in addition to 56?
DR. COTTON: Yes, we did.
MR. CLARKE: Did those include samples that you actually obtained RFLP typing results for?
DR. COTTON: Yes.
MR. CLARKE: In particular, did you test on one x-ray what included items no. 52?
DR. COTTON: Yes.
MR. CLARKE: Your Honor, with the Court's permission I would ask that a photograph of 52 be placed on the elmo as well. (Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: Which is I am told exhibit 48-I.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: And in particular, your Honor, with regard to the board which has been marked--I'm talking about the photo board that is on the easel currently as People's exhibit 165--in particular, the photograph labeled on the left-hand side of that board, three photos down, labeled "item no. 5."
MR. CLARKE: Was that one of the items tested during this RFLP typing possess, Dr. Cotton?
DR. COTTON: Yes.
MR. CLARKE: On this particular test or during this test did you also test any other items in this case?
DR. COTTON: Yes.
MR. CLARKE: What were those items?
DR. COTTON: Item no. 78 and item no. 12.
MR. CLARKE: All right. What I think we will do is take them one at a time. Do you have with you the first x-ray in this testing process for those items you have just described?
DR. COTTON: Yes.
MR. CLARKE: Would that be what you've called the cocktail x-ray or cocktail autorad?
DR. COTTON: Yes, but I'm going to have to find it.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Cotton, we may have the original.
DR. COTTON: I was hoping you did, because I wasn't seeing it in this group.
MR. CLARKE: Incidentally, is that the original of that particular x-ray?
DR. COTTON: It sure is.
MR. CLARKE: How are you able to tell that is an original instead of a copy?
DR. COTTON: Sometimes the copies are a different color, but these recent copies are not, and they are so close to the originals that what I'm doing is feeling for the labels that are stuck onto the originals and I can feel that this has the labels on it and so I can really quickly say this isn't the copy.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. With respect to this particular cocktail x-ray, I would ask that that be marked as People's next in order, your Honor.
THE COURT: People's 258.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Did we premark this already?
MR. CLARKE: I'm sorry. That has been marked, your Honor. That is 257-A.
THE COURT: 257-A.
MR. CLARKE: I apologize.
MR. CLARKE: Now, Dr. Cotton, with respect to the samples that were tested on this particular x-ray, would it again assist you to use the overhead projector as well as the pointing machine?
DR. COTTON: Sure.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Dr. Cotton, if you can, can you describe for us what is shown on this particular x-ray? What are the samples?
DR. COTTON: Do you want me to list the controls as well?
MR. CLARKE: If you can just describe them briefly and answer whether or not they are the same control or the same types of controls used on the earlier x-ray?
DR. COTTON: The film is laid out in terms of where the samples were loaded on the gel in a similar manner to the one that you saw previously so that we have marker lanes on the left, two marker lanes on the right. They are the same markers as before. All the films have the same markers, the lambda and the 1 KB. The reason that you can actually see the markers is that a probe is also added that identifies the markers, because the markers are not from human DNA, and if you didn't add a probe specifically for them, you wouldn't be able to see them. There is also an additional marker lane in the center, another 1 KB ladder. There is a TDS standard over here, (Indicating). This standard shows some degradation. And again what--as you view it on the light box, as opposed to viewing it on this screen, it is not this dark. The same is true with some of these lanes over here. When you look at it on the light box it is a little bit easier. There is also a k562 lane on this film that is shown right here, (Indicating). There--the three known samples are here, (Indicating): Simpson, Brown and Goldman. The three evidence samples are loaded over here, no. 52, no. 78 and no. 12.
MR. CLARKE: Now, with regard to, and you have identified or described the fact that the three known samples are towards the right of that x-ray; is that right?
DR. COTTON: That's right.
MR. CLARKE: And they have created certain banding patterns; is that correct?
DR. COTTON: That's right.
MR. CLARKE: Now, with regard to those lanes--and let's look at, for instance, what is labeled Nicole or N. Brown, that lane appears to be dark. Can you describe what causes that?
DR. COTTON: This sample has a considerable amount of degradation in it. That was seen as early on as the mini gel when we looked to see how much DNA we got from that sample. You can see on the mini gel that that DNA is degraded. The same is actually true for the sample from Mr. Goldman, although on this particular film the sample from Nicole Brown looks slightly more degraded than the sample from Mr. Goldman. All of the samples of the known on this film and the TDS and the k562 appear to be rather dark, and they are, and the reason is that this was a long exposure because one of the evidence lanes didn't have very much DNA in it.
MR. CLARKE: Now, which lane was that?
DR. COTTON: The lane that doesn't have very much DNA is the lane where we have sample, no. 52, and you can see how much lighter this banding pattern is as opposed to the others, (Indicating). Now, among all the various things that can determine whether something is light or something is dark, the overall most common reason is how much DNA is there. And we also know quantitatively--well, in estimating from the mini gel that there wasn't a lot of DNA in that sample.
MR. CLARKE: Does the fact that some of these lanes are darker prevent you from being able to interpret the results?
DR. COTTON: If we had just this film, you would--you could interpret it, but I would rather see all the films in series and interpret them altogether, than just use this one. The bioimage was used on this film, the sizes were done from this film, but anytime that you have a whole set of data, you would like to look at the entire set before you come to a conclusion, not just look at a single film.
MR. CLARKE: Now, from looking at these--from looking at these particular samples--and let me focus your attention on what appear to be the three evidence items, no. 52, the Bundy walkway, no. 78, Mr. Goldman's boot and no. 12, the Rockingham foyer--what can you tell us about the relative amounts of DNA in those three items from this x-ray?
DR. COTTON: From this film, no. 12, would have the most in comparison to those three. No. 78 would have sort of a middle amount and no. 52 would have the smallest amount of DNA.
MR. CLARKE: So from left to right on those three items, basically the DNA goes up in terms of its amount?
DR. COTTON: Yes.
MR. CLARKE: Now, as far as once you obtain this particular x-ray, was it in fact examined for any results or interpretations that could be made?
DR. COTTON: Yes.
MR. CLARKE: What can you--
DR. COTTON: It was.
MR. CLARKE: What can you tell us about any conclusions or opinions you reached from this particular film?
DR. COTTON: From this particular film you can--let's look at each piece of evidence individually. Item 52 has three bands close to the top, another grouping of three bands, and a single band down here, (Indicating), and that pattern is consistent and looks to be the same as the pattern from Mr. Simpson which also has a group of three, another group of three and a single band down at the bottom. And because of--sorry.
MR. CLARKE: Go ahead, I'm sorry.
DR. COTTON: Because it also has the same pattern, let's go on to sample 12. It also has a group of three bands, another group of three bands, and a single band way down at the bottom, so the DNA banding pattern from item 52 and item 12 are--I'm now speaking as if I was making an initial interpretation from this film--they are certainly consistent with the pattern from Mr. Simpson. Later on, after doing some measurement, you would make a determination that--where you would say the patterns match or they do not match, but at this point they are visibly the same.
MR. CLARKE: All right. Dr. Cotton, what I'm going to ask you to do is without wearing out your thumb, if you are using that to place the arrows, could you place the arrows on each the bands you see in the Bundy walkway lane, item no. 52.
DR. COTTON: Do you want each band or shall we do the two groups of three?
MR. CLARKE: Whichever is easier, as long as it will show the relative positions.
DR. COTTON: It is probably clearer to--
(Discussion held off the record between the Deputy District Attorneys.)
DR. COTTON: I will just--so we don't have too many arrows up here, I will just point to the middle band in this group of three and the middle band in this group of three, just indicating that I have a group of three and a single band down here at the bottom, (Indicating). And I will make the same designation for the--did you want me--I'm sorry.
MR. CLARKE: That's fine.
DR. COTTON: Did you want me to go on to no. 12?
MR. CLARKE: Yes, if you would.
DR. COTTON: I will make the same designation for the two groups of three bands in item no. 12 and the single band down towards the bottom, and the group of three from the known sample from Mr. Simpson, the second group of three, and the single band down at the bottom, (Indicating).
MR. CLARKE: All right. Your Honor, then with the Court's permission, I would ask that this particular x-ray film that has these arrows on it be printed and marked as a People's exhibit.
THE COURT: Yes. Do you want to make that a separate exhibit or do you want to make it a sub exhibit under 257?
MR. CLARKE: The only hesitation I have as a sub exhibit is that there are already sub exhibits to 257, but that may still be appropriate. 257-A(1).
THE COURT: A-1.
(Peo's 257-A(1) for id = autorad)
THE COURT: All right. Would this be an appropriate point?
MR. CLARKE: Yes.
THE COURT: Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions to you. Do not discuss this case amongst yourselves, don't form any opinions about the case, do not allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted to you. We will stand in recess until one o'clock. All right. Dr. Cotton, you may step down.
(At 12:00 p.m. The noon recess was taken until 1:30 p.m. Of the same day.)
Los Angeles, California; Thursday, May 10, 1995 1:00 p.m.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Good afternoon, counsel. Back on the record. Are you ready to proceed? All right. Let's have the jurors, please.
MR. CLARKE: I'm sorry. One item if I may. I don't know if it will occur before--although it might--before the Court would normally take a recess, but it's going to be my request following going through these autorads--and I think I mentioned this to the Court at some point earlier, perhaps not--that we have a light box that's large enough to put two rows, in other words, a full set of cocktails plus the single locus probes in one row, and it's going to be my request that that be shown to the jury in that fashion.
MR. NEUFELD: I have no objection.
THE COURT: Do you have that equipment, paraphernalia available?
MR. CLARKE: It is upstairs, yes, and it can or will be brought down with the Court's permission.
THE COURT: All right. I don't recollect if I told you that--you know, today's normally a 4:00 o'clock ending date--ending time. I want to end at 3:45 today because one of the jurors has a medical appointment. So--
MR. CLARKE: Very well.
THE COURT: Two shorter sessions today. So I would suggest that you have your staff bring that down, and at the first Court reporter break, we'll bring it in.
MR. CLARKE: Very good.
THE COURT: All right. Anything else? Deputy Magnera, let's have the jury, please.
MR. CLARKE: The only thing, that apparently we need permission to bring it in the back door. It's large.
THE COURT: Too large to come through here?
MR. FAIRTLOUGH: It would be difficult. It would be much easier just to be able to bring it in at an angle and place it at the end of the jury box.
THE COURT: How do you propose to get back there?
MR. FAIRTLOUGH: I believe, in speaking with the Court clerk, we could use perhaps Department 102, which is a little less constricted with the amount of seats to be able to move the object back into the Court.
THE COURT: Are there any courts on the floor that aren't in session on this side of the building?
MR. FAIRTLOUGH: At this time, I do not know.
THE COURT: Well, that's why we have lunch hours.
(Brief pause.)
MR. FAIRTLOUGH: We can bring it down right now, your Honor.
THE COURT: Okay. Go get it. 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. Dr. Cotton, would you resume the witness stand, please. The record should reflect we've now been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
Robin Cotton, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: Dr. Robin Cotton is again on the witness stand still on direct examination by Mr. Clarke. Mr. Clarke, you may continue.
MR. CLARKE: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
DIRECT EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Cotton, I believe we had left off where you had described or actually demonstrated to the jury on this x-ray film of the samples that included the foyer at the Rockingham residence as well as the Bundy stain, items 12 and 52, as well as item-- well, let me rephrase that. You have described those two particular evidence items; is that right?
DR. COTTON: That's right.
MR. CLARKE: With regard to the third item--
MR. CLARKE: Can I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, if I may return People's exhibit 257-A to the elmo projection machine. Mr. Harris has graciously offered to view it for us.
(Brief pause.)
THE COURT: All right. This is 257-A(1).
MR. CLARKE: Now, Dr. Cotton, perhaps I can ask you to come down to the point maker, if you would.
(The witness complies.)
MR. CLARKE: And you have already described the similarity in patterns between the two evidence items, Bundy stain no. 52 and the Rockingham foyer stain no. 12 and the pattern of Mr. Simpson; is that right?
DR. COTTON: Yes.
MR. CLARKE: Is there another evidence item also on this particular autorad or x-ray?
DR. COTTON: Yes.
MR. CLARKE: And what item is that?
DR. COTTON: Uh, no. 78.
MR. CLARKE: And that's no. 78, the boots--I'm sorry--the stain from Mr. Goldman's boot?
DR. COTTON: That's right.
MR. CLARKE: Now, would it be easier to go into these single locus probes or these auto--x-ray autorads that describe one genetic marker at a time for items 52 and 12 or would it be easier to deal with item 78, the boot stain, now at the cocktail x-ray film?
DR. COTTON: It would probably be easier, given that we're viewing this on the screen, to just go on to the individual films and then incorporate 78 in those and then perhaps come back to this one.
MR. CLARKE: All right. Do you have these one probe at a time x-ray films for, again, this same set of samples?
DR. COTTON: Yes.
MR. CLARKE: All right. Then I would ask, your Honor, to have marked next in order--actually I believe it's already been marked. 257-B as in boy.
(Brief pause.)
MR. CLARKE: Dr. Cotton, do you have those or do you have the originals with you?
DR. COTTON: These are the originals.
MR. CLARKE: Okay. Then what I'm going to ask--and actually perhaps to make the record even clearer, what I would ask permission to do is substitute the originals for what was initially marked as 257, each of the autorads for this particular item.
THE COURT: Yes.
MR. CLARKE: So then what would be now People's exhibit 257-B as in boy will be the original autorad itself for this particular RFLP test.
(Peo's 257-B for id = org. Autorad)
MR. CLARKE: If I can show you, Dr. Cotton, the x-ray film that you just handed me and I've now handed back, what is that?
DR. COTTON: This is the autorad that was produced for this same set of samples using only probe ms1. The probes have letters, sort of letter, number designations and there isn't any way for them to make particular sense. These are--some of these are the number designations that were given in the lab where they were originally developed. So ms1 doesn't have any particular meaning. Just take it as the name of the genetic location we're going to look at.
MR. CLARKE: So it's simply the way you describe one particular genetic marker that you look at in the laboratory?
DR. COTTON: That's right. And this is the designation we use. When we talked the other day about a d1 something number, these also have d numbers. This--the number for this is d1s7, but these are marked with our lab designations, and it's marked ms1.
MR. CLARKE: All right. And with the Court's permission, I would ask that this particular x-ray film be placed on the overhead projection system.
THE COURT: Yes.
MR. CLARKE: Now, Dr. Cotton, referring to this particular x-ray, we see what appears to be labels at the top that are similar to those on the previous x-ray that involve the several probes done at one time?
DR. COTTON: Yes. They're the same.
MR. CLARKE: How do you produce an x-ray film from a particular membrane that you've already produced an earlier x-ray film from? Why isn't all the DNA on the first x-ray film?
DR. COTTON: The DNA isn't ever on the x-ray film. The DNA stays on the membrane. The probe binds to the membrane. Then you lay the x-ray film over, get your exposure. Then you can wash the probe off, leaving the original DNA from the gel still bound to the membrane and, therefore, you can reuse that membrane several times. This series of films and the other series of films are literally superimposable one on the other. That is, all these films from this same gel, from the membrane from this same gel are superimposable one on the other because they came from the same membrane.
MR. CLARKE: Now, there appear to be far fewer bands on this particular x-ray than on the earlier one; is that right?
DR. COTTON: That's right.
MR. CLARKE: Why is that?
DR. COTTON: That's because now we're looking at a single genetic locus. Therefore, each of us, for a single genetic locus, will only have two characteristics. And on this film, all the samples have either one or two, and there's a reason why a sample might have one. But anyway, these samples have either one or two.
MR. CLARKE: Let's talk a little bit about the controls. First of all, are these the same controls as were on this cocktail x-ray film that you described earlier this morning?
DR. COTTON: All the samples are the same as were on the cocktail film.
MR. CLARKE: As far as this first control on the far left labeled lambda, does it have the same number of bands as in the cocktail version?
DR. COTTON: The lam--yes, it does, and so does the 1 KB.
MR. CLARKE: Now, what about the third lane in that's labeled "TDS" from this member of your laboratory. Do we see fewer bands this time than before?
DR. COTTON: We only see two, one here and one here (Indicating).
MR. CLARKE: Why is that? Why don't we see more?
DR. COTTON: Because we're looking at one genetic location. So one of these bands came from this person's mother and the other from his father.
MR. CLARKE: Now, following--following this test and the development of this particular x-ray, were you able to reach any opinions or conclusions about the various samples contained on this particular x-ray?
DR. COTTON: We certainly reach some opinions, but really, you're never reaching a conclusion until you have the full set of films. So based on each film that comes off, you would look at it and make an assessment, but you wouldn't finish making an assessment until you had all the data.
MR. CLARKE: In other words, this is, again, one step in the process?
DR. COTTON: This is one piece, yes.
MR. CLARKE: And this is the first time you've actually tested these samples or looked at these samples at this--at a single genetic marker?
DR. COTTON: That's right.
MR. CLARKE: Once this first single genetic marker is developed, what are you looking for when you look at this particular film?
DR. COTTON: You're looking for the same type of information that you're looking all along; do the DNA banding patterns from the samples that you have, are they--do you have any that are similar, that is the same, visually the same in this case, what--since we're just looking at it and are there any that are different.
MR. CLARKE: Now, with regard to--and let's focus again on simply the Bundy walkway stain no. 52 and the Rockingham foyer stain no. 12. When you looked at those two particular items, did you reach any conclusions?
DR. COTTON: Yes.
MR. CLARKE: Can you describe those? And if it would help to use the point maker, please do so.
DR. COTTON: The--let's see. There's a single band in sample--the DNA from item no. 12. It's very difficult to see here on this projection screen on the original on a light box. There's also a very faint single band from item no. 52.
MR. CLARKE: All right. With regard to that band--
MR. CLARKE: First of all, if I could, your Honor, with the Court's permission, I would like to take this particular film, lay it on this small light box so that the witness can examine it briefly.
THE COURT: Yes.
MR. CLARKE: Dr. Cotton, what I just informed the Court I was going to ask you to do, could you do that?
(The witness complies.)
MR. CLARKE: Have you had an opportunity to do that?
DR. COTTON: Yes.
MR. CLARKE: And with regard to that one band that you just described, when you look at it on the light box, can you describe what you see?
DR. COTTON: I see a single band, and it's very light.
MR. CLARKE: Again, what is the meaning of a very light--or actually not again. What is the meaning of a light band in this particular instance?
DR. COTTON: In this particular instance, the light band is most likely a reflection of the fact that there's not very much DNA in that sample.
MR. CLARKE: Now, if I can take you back to the point maker, and if you would in a similar manner to that which you did with the earlier cocktail film, could you place an arrow at the location of that band you just described on the Bundy stain as well as on the foyer, Rockingham foyer stain and the known sample that it matches?
(The witness complies.)
MR. CLARKE: Now, Dr. Cotton, with regard to that particular set of arrows, first of all, do either of the two individuals who are on this particular film, that is Nicole Brown or Ronald Goldman, do either of their DNA's appear to match or be in a similar position to this stain, that is both the Bundy stain and the foyer?
DR. COTTON: Mr. Goldman has a band that's very close in position to the single band from Mr. Simpson and, however, he's distinguished. That is, they're not the same because he has a second band about the middle of the gel. The sample from the foyer has no second band, and as far as we can determine, the sample from item 52 does not have a second band either.
MR. CLARKE: So based on this result alone, would Mr. Goldman be a possible donor of the DNA found in the Bundy and foyer stains or would he be excluded?
DR. COTTON: Based on this result alone? Uh, I wouldn't--if this was the only thing I had to look at, I wouldn't want to make a determination based on this alone as to whether or not Mr. Goldman could have been a contributor to item 52. I wouldn't be completely satisfied that there might not be other bands in item 52 that I wasn't seeing, given the one that I can see is so light. So if I was only using this film, I would say, well, certainly, Mr. Simpson is included and Mr. Goldman could be included as well if this was the only data I had.
MR. CLARKE: In this case, is this the only data you have?
DR. COTTON: No.
MR. CLARKE: What other data do you have?
DR. COTTON: We have four other individual probes and the cocktail.
MR. CLARKE: What about Nicole Brown? Could she be a possible donor of the DNA in those two bloodstains?
DR. COTTON: No.
MR. CLARKE: Why not?
DR. COTTON: She has also two bands, one quite high up here, another one down here (Indicating). They are not seen in the foyer sample and, again, there's only one band seen in the Bundy sample. Nothing else is seen. There's no indication that she would be a contributor to that, although, again, if this were the--if this were all you had, uh, all you could say is, well, I have that one band in 52 and it doesn't belong to her.
MR. CLARKE: And in this case, do you have in fact more data to be able to determine whether or not Nicole Brown could have been a donor of those two evidence items, those two bloodstains?
DR. COTTON: Yes.
MR. CLARKE: And did you utilize that in making your ultimate conclusions in that--in this case?
DR. COTTON: Yes.
MR. CLARKE: Now, while we're on this particular autorad, what about children of Mr. Simpson and Nicole Brown? And what I'm focusing on, and if you could direct yourself to, is there anything about this particular autorad or this film that you can make any conclusions about whether or not, for instance of a--I'm sorry--whether or not, for instance, a child of those two individuals could have donated the stains found in the foyer and on the Bundy walkway?
DR. COTTON: Since we don't have that--a child--a particular child's pattern, a child of these two individuals would have one band from Simpson and one band from Nicole Brown. Now, there are no brown--there are no bands that we can see from--that correspond to Nicole Brown's sample in item 52. Uh, however, Mr. Simpson could give this band to a child, and he probably has another band that we can't see on the gel, although I can't say that for certain. So a child of Mr. Simpson could have this same band or may not.
MR. CLARKE: Well, would that child have to have one of the two bands of Nicole Brown that are shown under her lane?
DR. COTTON: Yes.
MR. CLARKE: Do you see either one of those bands--do you see either one of those two bands from Nicole Brown in either of those two evidence items, the Bundy stain or the foyer stain?
DR. COTTON: No.
MR. CLARKE: What conclusions if any can you then reach about whether or not a child of the two of them could have donated the DNA in those two stains?
DR. COTTON: The conclusion would be that a child of Mr. Simpson and Nicole Brown wouldn't be the donor of the DNA in item 12 or item 52.
MR. CLARKE: Now, with respect to this particular marker--and I believe you said it was called ms1?
DR. COTTON: That's right.
MR. CLARKE: Do you then perform this single genetic marker typing process at other individual locations on the DNA molecule?
DR. COTTON: Yes.
MR. CLARKE: All right. What would be the next marker that would be used in an instance like this?
DR. COTTON: The--there is no typical next one. We do them in whatever order is convenient for the staff who's doing the additions of probes to the membrane. So I order them in a particular sequence. We just have a sequence that we keep them in the lab, but it doesn't mean that's exactly the order that the films were produced.
MR. CLARKE: All right. What would be an appropriate marker to look at next then whether it's the chronological order or the way you interpret the results?
DR. COTTON: Let's go on to ms31, but--you know, we could determine what the chronological order was, but I don't know if this is the next one or not. It's what I would commonly look at next. You can do the dotted one next. That--
MR. CLARKE: And, your Honor, this would again be another original x-ray film that was initially marked 257-C that now would be our request to substitute the original for that copy.
THE COURT: All right.
(Peo's 257-C for id = org. Film)
MR. CLARKE: This can be described I believe as-- and, Dr. Cotton, perhaps you can describe this because I believe we will see two separate films at this particular genetic marker. Could you describe this first one that will be 257-C?
THE COURT: All right. Do you want to print out first of all what you have on the--
MR. CLARKE: Yes, your Honor. Could that be 257-B(1)?
THE COURT: Yes.
(Peo's 257-B(1) for id = printout)
THE COURT: All right. Mr. Fairtlough, do you have that captured? All right. Proceed.
MR. CLARKE: Dr. Cotton, with what will be People's 257-C, can you describe that, please?
DR. COTTON: This is the first of two autorads that were produced with probe ms31. And you'll see as soon as we put this up why we went to do another one, because this one didn't turn out very well. And also, I see that it has a piece of scotch tape left on it from when I put the labels on. So--
MR. CLARKE: All right. Now, you say scotch tape from when you put the labels on?
DR. COTTON: Yeah. I used it to orient--to make them all level.
MR. CLARKE: Does the scotch tape have anything to do with the production of the film or your looking at it and interpreting its results in the laboratory?
DR. COTTON: No. It wasn't there when we looked at it. And we can take it off. It won't hurt anything. We can take it off later.
MR. CLARKE: I was just going to say, if we take it off now, will it in any way damage anything that is on the film itself?
DR. COTTON: Oh, no.
MR. CLARKE: All right. Then with the Court's permission, may the witness remove the tape?
(Brief pause.)
MR. CLARKE: Can we go ahead and have you describe what's shown on this film without removing the tape first?
DR. COTTON: Yes. It's not going to get in the way of looking at it.
MR. CLARKE: Okay.
DR. COTTON: I just don't think we want to leave it on forever.
THE COURT: Mr. Clarke.
MR. CLARKE: Now, Dr. Cotton, with respect to this particular film, 257-C, what does this show?
DR. COTTON: This is an amplification of probe ms31. And you can see that you--there are bands in the samples. But as you can see, there are many small black dots all around the film. That is something that happens occasionally when you're adding the radioactive probe. If the probe is not washed off sufficiently, that is, you add the probe, you allow it to bind, you wash off excess probe before you lay your film over it--if the excess probe isn't washed off sufficiently, you will get what's generally referred to as background. And background doesn't always look like little dots, but it does sometimes. It does on this film. And although you can see bands in the known samples over here on the right and you can see bands in item 12, there are bands that you can see also in item 78, but it totally obscures anything that might be seen in item 52. And because of the background, this--at this time, the membrane was--the probe was washed off and another hybridization, which is the term for adding the probe to the membrane, was attempted to see if we could get a better image.
MR. CLARKE: Is there anything about the creation, for instance, of this film that somehow alters or changes the locations of the DNA that are found in the membrane itself? There's nothing in the processing of the membrane in terms of adding probe, washing it off, removing the probe later on that moves any of the DNA that's on the nylon. That DNA is--is chemically fixed to the nylon and it's not going anywhere.
MR. CLARKE: Is this something that's happened before in your laboratory or is this the first time?
DR. COTTON: Oh, it's certainly not the first time. It happens occasionally. You certainly are--are unhappy when you get something like this, but with the number of sam--membranes that are processed through the lab, you do see it every once in a while, and you usually hope that you can get another film off to correct the problems that you have with one that looks like this.
MR. CLARKE: Is that simply to create or try to create another film that shows the same thing in terms of banding patterns, but doesn't have this background or noise that gets in the way of your being able to view it clearly?
DR. COTTON: That's right. You're simply going to repeat the process of adding that probe again and hoping that you get a better result.
MR. CLARKE: Were any interpretations made from this particular film, 257-C?
DR. COTTON: No. We certainly--when we did it again, we checked and made sure it was all consistent. But other than that, there's no interpretation that was done from this particular film.
MR. CLARKE: Then if we could, your Honor, I would like to have marked as 257-D, the fourth autorad.
THE COURT: All right.
(Peo's 257-D for id = autorad)
MR. CLARKE: And showing you, Dr. Cotton, another film, can you describe what that is that will be marked 257-D?
DR. COTTON: This--this is the second try at getting a film off with this probe ms31.
MR. CLARKE: All right. Could we then utilize that on the projection system so that you could tell us any conclusions or opinions that you made?
DR. COTTON: Sure.
MR. CLARKE: This particular film seems to have fewer of those dots; is that right?
DR. COTTON: Yes. This one came out just fine.
MR. CLARKE: Now, with respect to this particular film again--and let me back up one step if I may. Are each of these films that we've looked at that have shown these three evidence items, the Bundy stain, the boot stain and the foyer stain, all from the same membrane?
DR. COTTON: Yes.
MR. CLARKE: So you simply do this one after another from the same membrane; is that right?
DR. COTTON: That's right.
MR. CLARKE: Now, this is at what genetic marker again?
DR. COTTON: Ms31.
MR. CLARKE: And once this film was developed, did you examine it to determine if there were any opinions or conclusions that you could reach?
DR. COTTON: Yes, we did.
MR. CLARKE: Now specifically, again, are the markers the same in terms of the lambda and 1 KB markers that are present?
DR. COTTON: The markers are exactly the same, two on the left, two on the right and one in the middle, and the DNA control samples marked TDS and k562 are in exactly the same position as they have been on all of the other films that had these evidence samples on them.
MR. CLARKE: Incidentally, as far as these markers are concerned, whether it's the--and let me actually ask one question before that. The samples at the top that have the labels with the boxes around them, what do those describe? Let me ask a different question. The lambda that has a box around it, is that a control?
DR. COTTON: Yes.
MR. CLARKE: Okay.
DR. COTTON: You mean--are you talking about the label?
MR. CLARKE: Yes. I'm sorry.
DR. COTTON: Yes.
MR. CLARKE: Okay. Are the labels that have boxes around them, do they show anything different than the labels that have no boxes around them? Do you understand what I'm asking?
DR. COTTON: I do. And since you designed these labels, I know that you designed them so that anything that's a control sample has a little box around it, and the other samples that are evidence samples or samples from known people are just names or item numbers.
MR. CLARKE: And actually, the names or the evidence items are in larger print as well?
DR. COTTON: That's right.
MR. CLARKE: Okay. As far as then these markers--and I would like to direct your attention to, for instance, the TDS. Again, that's the banding pattern obtained from a member of your laboratory?
DR. COTTON: That's right.
MR. CLARKE: Are you familiar from previous cases with what that laboratory member's DNA looks like?
DR. COTTON: Yes.
MR. CLARKE: Are you accustomed to seeing it in certain locations for each of these various genetic markers?
DR. COTTON: Yes.
MR. CLARKE: If you don't see them in the appropriate location, what action do you take?
DR. COTTON: Well, you would really try to figure out why they weren't in the right place. Umm, the only--the only good example I can give you of them not being in the right place is that if we had an autorad that was hybridized, for example, with ms1, but was accidentally labeled ms31, you would look at it and you'd say this can't be ms31. These are the bands that should show up with ms1. It would tell you that there had been a labeling error or an error in addition of probes. So it helps to detect that. And then in addition, the actual band sizes when they're calculated later are compared to what we know to be the standard sizes for that sample.
MR. CLARKE: Okay. Turning your attention now if I can to what appears to be a black like dot between the first TDS sample, which I believe is in the third lane from the left, and between that and the lane involving the Bundy stain, what is--
DR. COTTON: Is this the dot you have in mind (Indicating)?
MR. CLARKE: Yes. What is that?
DR. COTTON: It's a little bit of background, sort of like one left over from all the dots we had on before. It's not probably left over. It's probably a new dot, but it's some background from p32 that's stuck to the membrane that didn't come off in the wash.
MR. CLARKE: P32, just what is that again?
DR. COTTON: That's the radioactive probe that--that's the correct designation for the radioactive label that's on the DNA probe.
MR. CLARKE: There also appear to be at least two or possibly three dots in the lower right-hand portion. Do you see what I'm referring to on the screen?
DR. COTTON: You're talking about here (Indicating)?
MR. CLARKE: Yes. And is there one--
DR. COTTON: And here (Indicating)?
MR. CLARKE: Yes.
DR. COTTON: Yes.
MR. CLARKE: What are those items?
DR. COTTON: Still more background.
MR. CLARKE: Do those interfere in your ability to be able to conclude types or banding patterns that are present on these autorads, these films?
DR. COTTON: No.
MR. CLARKE: Why not?
DR. COTTON: Well, they're clearly not bands. They don't look anything like a band. And if you spend very much time in the lab looking at x-ray films, you become very good at distinguishing what's background from what's a band. The thing that they do interfere with is the computer imaging system that you may put your film on doesn't have the judgment that an experienced scientist would have. The computer imaging system is only looking for differences in darkness. So if this band--let's say this dot here because it's bigger happened to be moved over a little bit and be in a sample lane, then the computer imaging system would call that a band even though it's clearly not. So in that case, you would have to tell the computer, nope, that's not a band, disregard it. But other than that--other than helping the computer to deal with the background, that's the only point at which you would say it interferes in the analysis in any way.
MR. CLARKE: Okay. Now, specifically referring to what we've been discussing, that is the Bundy stain and the Rockingham foyer stains, do you see banding patterns for those two items of evidence?
DR. COTTON: Yes, I do.
MR. CLARKE: All right. If you could again, using the pointer, perhaps place arrows at the locations of bands in the lanes of those two items.
(The witness complies.)
MR. CLARKE: First of all, do those two items appear to have DNA with banding patterns that are--that appear to be the same as one another?
DR. COTTON: Yes.
MR. CLARKE: Are there any individuals on this particular film, that is amongst the known people, who first of all can be excluded? In other words, could not have donated the DNA found in the Bundy stain and the foyer stain?
DR. COTTON: Yes.
MR. CLARKE: Who?
DR. COTTON: Uh, Nicole Brown would be excluded. Her bands are in a different position than the ones in item 52 or item 12, and Mr. Goldman has a single band for this probe. It happens to be in a similar position to one of the bands of Nicole Brown. But in any case, it is not in a similar position to either of the two bands from the Bundy scene or from item no. 12.
MR. CLARKE: All right. What about the third remaining known sample that of Mr. Simpson? Can he be excluded as a donor of the DNA in those two stains?
DR. COTTON: No, he cannot.
MR. CLARKE: Why?
DR. COTTON: Mr. Simpson has two bands which are certainly visually in a position the same as those in item 12 and item 52.
MR. CLARKE: All right. Could you place the two arrows in those same two bands locations with respect to Mr. Simpson's DNA?
(The witness complies.)
MR. CLARKE: All right. Your Honor, may we have that printed as well?
THE COURT: Yes. That will be 257-D(1).
MR. CLARKE: Thank you.
(Peo's 257-D(1) for id = printout)
MR. CLARKE: All right. Dr. Cotton, did you conduct any other probings with another genetic marker of this particular set of samples from the same membrane?
DR. COTTON: Yes.
MR. CLARKE: What genetic marker would that be at? Which should we discuss next?
DR. COTTON: Ms43.
MR. CLARKE: Your Honor, may this particular film be again substituted for the previously marked 257-E?
THE COURT: Yes.
(Peo's 257-E for id = org. Film)
THE COURT: And, Dr. Cotton, which marker was this?
DR. COTTON: Ms43.
MR. CLARKE: Dr. Cotton, could you clear the screen of those arrows? And we'll move to the next film.
(The witness complies.)
THE COURT: Excuse me, Mr. Clarke, for a second.
(Brief pause.)
THE COURT: All right. Ladies and gentlemen, we need to take a comfort break real quick here. And let me just add, this is going to be a long trial as you know. Any time any of you need to take a comfort break, just let the bailiffs know. We can accommodate that. All right. We'll take a five-minute comfort break.
(Recess.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: 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: All right. Thank you, ladies and gentlemen. Please be seated. All right. Dr. Cotton, would you resume the witness stand, please.
MR. CLARKE: Or could she remain down at the podium?
THE COURT: All right. She can remain down at the podium. All right. Let the record reflect we've all been rejoined by our comfortable jurors. And let's resume.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, and if we could proceed with the next genetic marker, and I believe you said that was ms43?
DR. COTTON: That's right.
MR. CLARKE: Which should be People's exhibit 257-E. Now, again, is this simply another film from the same membrane that contains the various items that are labeled at the top?
DR. COTTON: That's right.
MR. CLARKE: Now, as far as this particular film is concerned--and again, just quickly, as far as TDS, your known laboratory member, are his or her bands in the appropriate location from your past experience?
DR. COTTON: Yes. It's his and they are.
MR. CLARKE: Now, with regard to, again, the Bundy stain no. 52 and the foyer stain no. 12, can you use the arrows and describe their relative locations?
DR. COTTON: I certainly can for 12. There's two bands right here and right here (Indicating). Did you want me to mark them?
MR. CLARKE: Yes.
DR. COTTON: The--
MR. CLARKE: And let's--I'm going to stop you and we'll break this one down a little bit.
DR. COTTON: Okay.
MR. CLARKE: As far as those particular bands, are there any individuals, that is either Mr. Simpson, Nicole Brown or Ron Goldman that can be excluded, in other words, can be eliminated as being donors of those two stains from the foyer and the walkway, Bundy walkway?
DR. COTTON: Yes.
MR. CLARKE: Okay. Who are those individuals or individual?
DR. COTTON: Nicole Brown is excluded, her bands are not in the same position, and Ronald Goldman is excluded, his bands are not in the same position.
MR. CLARKE: Incidentally, just to make it clear, to exclude someone, do you need to be able to exclude them at each of these different genetic markers?
DR. COTTON: Yes.
MR. CLARKE: As far as Mr. Simpson, is he excluded or could he a donor of the DNA in those two evidence stains?
DR. COTTON: He is not excluded. So he could be a donor.
MR. CLARKE: Okay. I'll have you place the arrows on his banding patterns at this time, if you would.
(The witness complies.)
MR. CLARKE: Now, let's turn to the Bundy stain, item no. 52. First of all, on this projection screen, can you see any banding patterns from the sample at this genetic marker?
DR. COTTON: I--I sort of see where they are, but you have to keep in mind that I've looked at the original many times.
MR. CLARKE: All right.
DR. COTTON: So if I were looking at this on this screen and hadn't seen it before, I doubt that I could pick out anything.
MR. CLARKE: Would it help you to look at the original in the light box up close?
DR. COTTON: I did look at it before we put it up there. And on the light box, you can see two very faint bands. They are hard to pick out and they are consistent with the bands in no. 12 and they are consistent with the bands in Mr. Simpson.
MR. CLARKE: Now, with regard to these very faint bands as you've described them, how do you know--how do you know those are banding patterns from DNA in that sample? How do you reach that conclusion when they're faint bands like that?
DR. COTTON: Let me talk about this sample rather than try to make any generality.
MR. CLARKE: All right.
DR. COTTON: The best banding pattern we have from item 52 is that in the cocktail, and--and that was the first time that probes were added to the membrane, and it's typical that that's where you get your strongest signal or your darkest bands.
MR. CLARKE: Let me stop you for just a moment. The cocktail is that first film that has several bands for each of the samples?
DR. COTTON: That's right.
MR. CLARKE: Instead of just one or two?
DR. COTTON: Instead of just one or two.
MR. CLARKE: All right. Go ahead.
DR. COTTON: The individual probes are used to both confirm the data in that cocktail and to identify which band in the cocktail was produced by which marker. So if the cocktail has in it probe ms1, ms31, ms43 and the last one that we haven't looked at in the cocktail, g3, then when you go back and use them one at a time, of the multiple bands in the cocktail, you can pick out which two were created by probe ms1 which--or one or two, which ones were created by ms31 and so on. Even if you go back and do each probe individually, as long as you get three out of the four and compare them back to the cocktail, you can deduce where the last two came from. So even if we were to see nothing on ms43, we still have, therefore, identified the ms43 bands on that cocktail. So the fact that these are very light--it would be nicer if they were not. But even if we didn't see them at all, there is a sufficient amount of data to go forward.
MR. CLARKE: Incidentally, when these films are reviewed, are you the only person that looks at these opinions to reach conclusions or opinions?
DR. COTTON: Absolutely not.
MR. CLARKE: Who else looks at them?
DR. COTTON: At a very minimum, the analyst who's done the work will review the films before I ever see them. In--in a case where there are light bands, it's very usual in the lab to then have one or two other people also look at the film to get their opinion as well in terms of, are these bands sufficiently distinct that we can use them in the analysis.
MR. CLARKE: Okay. What would then be--
MR. CLARKE: And perhaps we could have this printed, your Honor, and marked as--
THE COURT: This would be 257-E(1).
MR. CLARKE: Thank you, your Honor.
(Peo's 257-E(1) for id = printout)
MR. CLARKE: I believe you mentioned--and, again, before we leave this autorad completely, Dr. Cotton, there again appear to be some of the spots in various locations; is that right?
DR. COTTON: Yes.
MR. CLARKE: What are those?
DR. COTTON: Those are the same type of spots that we talked about earlier. They are background from the p32 label, and they certainly aren't going--the spots here don't look like bands and they aren't going to interfere.
MR. CLARKE: All right. I believe you mentioned the next genetic marker was g3; is that right?
DR. COTTON: That's right.
MR. CLARKE: Your Honor, again, may we have the original for that marker substituted for what's already been marked as 257-F?
THE COURT: Yes.
(Peo's 257-F for id = org. Marker)
MR. CLARKE: Dr. Cotton, showing you what will be marked 257-F, is that the next genetic marker in the series of tests performed on these three evidence samples?
DR. COTTON: Yes.
MR. CLARKE: And if you could, Dr. Cotton--you're doing exactly what I was going to ask. Thanks. Now, showing you this particular film--and you've already described it as being at a--would this be a fourth genetic marker, g3?
DR. COTTON: Yes.
MR. CLARKE: And would this be the fourth of the four markers that are part of what you referred to as that cocktail earlier?
DR. COTTON: Yes.
MR. CLARKE: Now, in this sample again and referring to the markers including the sample for TDS, did the markers or do they appear as though they perform properly?
DR. COTTON: Yes. They all look fine.
MR. CLARKE: Actually I'm not sure markers perform, but--
DR. COTTON: Well--
MR. CLARKE: Do they show that the test was performed properly?
DR. COTTON: The markers look just like they should and there's no indication from them that there was any problem with the gel or the addition of probe.
MR. CLARKE: Now, referring you to again the evidence items, the Bundy stain and the foyer stain, were banding patterns produced at this particular marker?
DR. COTTON: Yes.
MR. CLARKE: And could you use the arrow to point out their locations.
DR. COTTON: There are two bands in item 52. One is here and the other one, which is also difficult to see on this screen, but is visible clearly on the film, is right here (Indicating). Item no. 12 from the foyer has two bands, and I'm indicating those with the arrows.
MR. CLARKE: Now, what about the samples from Nicole Brown and Ron Goldman? Could they have been donors of the DNA found in those two stains?
DR. COTTON: No, they could not.
MR. CLARKE: Why?
DR. COTTON: Each of those patterns has two bands.
MR. CLARKE: You're referring to Mr. Goldman right now?
DR. COTTON: Mr. Goldman and now Nicole Brown. And their bands are not in the same position. They're not consistent with the bands from item 52 or from the foyer.
MR. CLARKE: Now, if I could take you down to the very bottom of Mr. Goldman's banding patterns. Is that a band at the very bottom there?
DR. COTTON: Uh, I need to look at the original to--
MR. CLARKE: I'm sorry?
DR. COTTON: Could I look at the original again?
MR. CLARKE: Yes.
(The witness does so.)
DR. COTTON: Yes, it is.
MR. CLARKE: Now, why couldn't be Mr. Goldman be a donor? For instance, in referring to that bottom band there that you just looked at.
DR. COTTON: Umm, do you want me replace the arrows?
(The witness does so.)
DR. COTTON: Mr. Goldberg has a band that's quite small and it almost lines up exactly with the very smallness band in the marker. When I say the band is small, what I really mean is, the DNA fragment that made that band is not very long. I don't mean that the physical size of the band that you see there is small. That is, it's light, but it's about the same dimensions as all the other bands. The band in the--item 12 and item 52, that's also towards the bottom of the gel, does not line up with this lower marker and you can see is some distance above it. So--and then Mr. Goldman's other band, which is up here (Indicating), does not line up with the upper band in the evidence sample. So he's clearly excluded from being a possible donor of the DNA in item 52 and item 12.
MR. CLARKE: What about Mr. Simpson?
DR. COTTON: Mr. Simpson has two bands. They are in similar positions to the bands in item 52 and item 12.
MR. CLARKE: And could you place the arrows at the locations of his banding patterns?
(The witness complies.)
MR. CLARKE: Now, Dr. Cotton, with regard to this process of more than one person reading these particular films as to banding patterns, did that happen in this case?
DR. COTTON: I remember specifically that we had several people look at the bands in item 52.
MR. CLARKE: Why as to that particular item?
DR. COTTON: Because that item doesn't have much DNA in it. The banding pattern is light and we wanted--I wanted and Julie Cooper wanted who--she was still at Cellmark at that time. The original report was generated and later on, Paula wanted to make sure that we all had come to the same conclusion.
MR. NEUFELD: Your Honor, objection as to what Julie Cooper said.
THE COURT: Sustained. The answer is stricken. The jury is to disregard indication what Julie Cooper said.
MR. CLARKE: With regard to the results in this case as to 52, the Bundy stain, was there an agreement about the results?
MR. NEUFELD: Objection. Same--
THE COURT: Sustained. It's hearsay.
MR. CLARKE: As far as the records that you keep in this case, Dr. Cotton, first of all--and I believe you described the fact that records are kept in the course of your testing?
DR. COTTON: Yes.
MR. CLARKE: And do those records reflect testing conducted by the analyst in this case?
DR. COTTON: Yes.
MR. CLARKE: Do those records include analyst determination about samples that match or samples in which persons are excluded?
DR. COTTON: Yes.
MR. CLARKE: With respect to item 52, do those documents reflect determinations of either exclusions or inclusions?
DR. COTTON: They do.
MR. CLARKE: And with respect to those records, do they show the opinions of other analysts in this case?
DR. COTTON: Yes. The opinions are reflected in the signatures that are on the report. So if someone signed the report, indicates that they agree with the conclusions that are written in the report.
MR. CLARKE: And do those reports include the determination or a determination that with respect to, for example, the Bundy stain, item no. 52, that that matched any particular individual?
MR. NEUFELD: Objection, your Honor. Distinguished from between opinions and other types of statements and business records.
THE COURT: Sustained.
MR. CLARKE: Dr. Cotton, in forming your conclusions in this case, do you consider the opinions of other experts in your laboratory?
DR. COTTON: Yes, I do.
MR. CLARKE: Did that take place in this case?
DR. COTTON: Yes, it did.
MR. CLARKE: Did that take place with respect to all of the conclusions about matching patterns, that is individuals who may match a sample versus individuals who may be excluded as the donor of the sample?
DR. COTTON: Yes.
MR. CLARKE: And with respect to item 52, did those opinions conclude the same as you did?
MR. NEUFELD: Objection, your Honor.
THE COURT: Sustained.
MR. CLARKE: Could I have just a moment, your Honor?
THE COURT: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: In forming your own individual conclusions about this case, did you rely on or take into consideration the opinions of, for instance, Julie Cooper and Paula Yates?
DR. COTTON: Yes.
MR. CLARKE: With respect to those particular opinions that you relied on--well, let me rephrase that. In reliance upon those opinions, did that lead to the formation of your own opinions in any way?
DR. COTTON: In my role in reviewing the case, I received the data and a draft report. The draft report indicates the opinion of the analy--the analyst who did the case. I have the option to agree or disagree with it or change the report, and at the end of this process of--of drafting the report, we have to agree on the conclusions so that we can both sign it.
MR. NEUFELD: I would object to the last portion of the answer and ask to be stricken.
THE COURT: Overruled.
MR. CLARKE: Now, with respect to those opinions--first of all, as far as these drafts opinions, did you change them in terms of their conclusion from when they were drafted by one of the analysts?
MR. NEUFELD: Objection as to hearsay, the other analysts.
THE COURT: Overruled.
DR. COTTON: I don't have exact recollection of whether I made any changes in the report. I know that I did not change the substance of the report. Whether I made any grammatical changes or wording changes to be more precise, I can't remember.
MR. CLARKE: Did you make any--any changes in terms of conclusions about patterns or evidence items that matched known individuals?
DR. COTTON: No, I did not.
MR. CLARKE: All right. Then, your Honor, if we could print this particular--
THE COURT: Yes.
MR. CLARKE: --genetic marker film.
THE COURT: 257-F(1).
MR. CLARKE: And we'll proceed to the last one.
(Peo's 257-F(1) for id = printout)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. With respect to these individual markers, you've described the fact, Dr. Cotton, that this cocktail contains a combination of four markers, correct?
DR. COTTON: That's right.
MR. CLARKE: And you have now described the individual films for each of those four markers?
DR. COTTON: That's right.
MR. CLARKE: Do you stop at four markers or do you use generally any more than that?
DR. COTTON: We have a fifth marker that we usually try to use and was used in this case.
MR. CLARKE: And what's the name of that marker?
DR. COTTON: The marker is designated ynh24.
MR. CLARKE: All right. Your Honor, I have one more original x-ray film that I ask be substituted for the already marked copy, which is 257-G.
THE COURT: Yes.
(Peo's 257-G for id = org. Film)
MR. CLARKE: Showing you, Dr. Cotton, what will be exhibit 257-G, can you just tell us what that is?
DR. COTTON: This is the x-ray film that was produced using the probe ynh24.
MR. CLARKE: And if--
THE COURT: Let's clear the telescreen.
MR. CLARKE: If you could clear the arrows.
(The witness complies.)
MR. CLARKE: Thank you. Now, again, is your testing or your typing process at this genetic marker, which I believe you said was ynh24, taken from again the same membrane that each of the previous markers were tested from?
DR. COTTON: Yes.
MR. CLARKE: As far as the controls and without going into that in depth, did they or do they appear appropriate as they should?
DR. COTTON: Yes, they do.
MR. CLARKE: Now, referring to the evidence item--and if you can, again, focus on the Bundy stain no. 52 and the stain from the Rockingham foyer, no. 12. Let's start with no. 12. Do you see banding patterns in that sample at this genetic marker?
DR. COTTON: Yes.
MR. CLARKE: And if you would, please, use the arrows again to describe those locations.
DR. COTTON: (Indicating) there you are.
MR. CLARKE: Now, with regard to the Bundy stain, are there banding patterns in any locations on that particular--in that particular lane?
DR. COTTON: Yes, there are.
MR. CLARKE: All right. Could you describe where those are, please?
DR. COTTON: There's--again, these bands are faint. They are here and here (Indicating).
MR. CLARKE: Did you have an opportunity just a few moments ago to look at the original film on the light box that you have in front of you?
DR. COTTON: Yes, I did. And--
MR. CLARKE: And by looking at--I'm sorry. And by looking at it on that light box, were you able to see the two bands in the Bundy stain lying on this film?
DR. COTTON: Yes, I can or I did.
MR. CLARKE: Now, as far as Nicole Brown and Ron Goldman, are they possible donors of the DNA in those stains or not?
DR. COTTON: They are not.
MR. CLARKE: Okay. If you could just show with respect to each one why that's the case.
DR. COTTON: Nicole Brown has two bands that are close together, and they're clearly in different location than the two bands in the--item 12 and from the two bands in item 52. Ron--Ronald Goldman has two bands also, one right here and the second one down here (Indicating). The upper one is relatively close in position to the upper bands in item 52 and item 12, but not in exactly the same position. And Mr. Goldman's lower band is in a position where there's no band at all in item 12 or item 52. So he's clearly excluded as is Nicole Brown.
MR. CLARKE: Now, with regard to Mr. Simpson, what can you say about him in terms of being excluded or included as a possible donor of the DNA in those two stains?
DR. COTTON: He is included.
MR. CLARKE: All right. Why is that?
DR. COTTON: Mr. Simpson also has two bands, one here and another one here (Indicating), and they are certainly in visually similar positions to the bands in item 52 and item 12.
MR. CLARKE: All right. Your Honor, may a copy be printed of this autorad with the arrows?
THE COURT: 257-G(1). Mr. Fairtlough.
(Peo's 257-G(1) for id = printout)
MR. CLARKE: Why don't you have a seat on the witness stand. Dr. Cotton, with regard to--and let's start with item no. 52, the Bundy stain. Is Mr. Simpson included or excluded as a donor of the DNA in that sample following your review of all of the x-rays regarding that particular sample?
MR. NEUFELD: Your Honor, I would object as to the Bundy stain and I would ask for an instruction from the Court at this point.
THE COURT: No. You made the objection. It's noted. Proceed.
DR. COTTON: Mr. Simpson is included as a possible donor to that item.
MR. CLARKE: How do you base that opinion? Is there a short way you can describe that from what you just reviewed with the jury?
DR. COTTON: When you review the DNA bands from--we're on 50--we're on 52, right?
MR. CLARKE: Yes, the Bundy stain.
DR. COTTON: Yes. When you--excuse me. When you review the DNA bands that are visible in the cocktail and in each individual film for that item, in each case, they are consistent with the bands that are seen in Mr. Simpson's pattern.
MR. CLARKE: And at how many different genetic markers is that the case?
DR. COTTON: Altogether, there are five genetic markers.
MR. CLARKE: With respect to those five markers, is there a term you use when an individual cannot be excluded as a donor at a particular genetic marker using this RFLP process?
DR. COTTON: The term that you may be referring to is "match," and that term implies that not only are the bands visually similar, but when analyzed on the computer imaging system and a DNA fragment size is calculated, that those sizes are also close enough together to confirm your visual interpretation that the patterns are very similar. So in fact, when you go through that exercise, the bands in item 52 match the bands in Mr. Simpson.
MR. CLARKE: As far as looking at these patterns from these various films with your eye, did Mr. Simpson match item no. 52, the Bundy stain?
DR. COTTON: Yes.
MR. CLARKE: As far as this imaging process or the use of the computer that you've described, did he match at these five genetic marker locations the DNA found in the Bundy stain?
DR. COTTON: Yes.
MR. CLARKE: Now, turning your attention to the foyer stain from the Rockingham foyer, item no. 12, following your review of the material that you've just described in Court, what statement if any can you make about Mr. Simpson and that particular stain?
DR. COTTON: The DNA banding pattern from item no. 12 in the foyer matches the DNA banding pattern from Mr. Simpson.
MR. CLARKE: With respect to this computer, this imaging device, what conclusions were reached with regard to that stain and Mr. Simpson?
DR. COTTON: Well, actually what I just said was a compilation of both the visual assessment and the computer imaging data, and the two patterns do match.
MR. CLARKE: As far as the possibility that Ronald Goldman or Nicole Brown contributed either of those stains, what can you say?
DR. COTTON: They definitely did not.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Okay. Dr. Cotton, with regard to these films that you've just described, there was a third evidence item on each of them, wasn't there?
DR. COTTON: Yes.
MR. CLARKE: And that was the boot stain from Mr. Goldman's shoe, no. 78?
DR. COTTON: That's right.
MR. CLARKE: All right. I'd like to, if you would return to the podium, and perhaps in a little shorter order with fewer questions, have you demonstrate the results of the testing of item no. 78, the boot stain. Could you do that?
DR. COTTON: Sure.
(The witness complies.)
MR. CLARKE: And referring initially to exhibit 257-A, your Honor.
THE COURT: All right. Mr. Clarke, Mr. Neufeld, just for your information, I'm going to change Court reporters at 2:30.
MR. CLARKE: Very well.
THE COURT REPORTER: No. I'm taking the whole afternoon.
THE COURT: You're going to go the whole thing? Okay. What if I want to change Court reporters? There will be a break.
MR. CLARKE: Very good. Initially, your Honor, I would ask permission to show exhibit 99. That's a photograph of the bottom of the boot.
THE COURT: All right. Let's clear the telestrator.
MR. CLARKE: All right. If we could then move to exhibit 257-A.
MR. NEUFELD: Your Honor, I'm sorry. Can we have a very brief sidebar on this particular issue before we go forward?
THE COURT: All right. With the Court reporter.
MR. NEUFELD: Thank you.
(The following proceedings were held at the bench:)
THE COURT: We're over at sidebar. Mr. Neufeld, you had a foundational objection you wanted to make?
MR. NEUFELD: Yes. Has there been any testimony in this case yet from anybody that they personally collected the drop from the bottom of the boot? I may have missed it.
MR. CLARKE: Greg Matheson described collection through records by Mr. Yamauchi and its packaging and shipment to Cellmark.
MR. NEUFELD: I would object to it. I think we drew distinction--in fact, the Court drew distinction between having Matheson testify to shipping and packaging, which we said we weren't objecting to at all in not having the person come in who actually collected it to start the ball rolling, and I would object to any testimony about a boot drop unless we have somebody testify--
THE COURT: I am going to overrule the objection at this point on a foundation basis subject to a motion to strike, but you're going to have to lay a foundation.
MR. CLARKE: Well, I was going to ask another question. With respect to the items that Dennis Fung collected and testified to, I believe--yeah. He testified to item no. 52, and there's--and he's testified to--I think we've put in everything in the chain that is needed. I'm wondering on what basis the Court is accepting the testimony subject to a motion to strike. I don't think there's anything missing.
THE COURT: I'll go back and take a look at it. I am saying, right now, I'm not going to stop and look at the record right now. But maybe one of your lesser minions could do that and see if the foundation is there, and let me know. Let Mr. Neufeld know as well. And let's proceed. How long is it going to take you to wheel in this contraption?
MR. CLARKE: I think it's here. So it's not going to take too long.
MR. NEUFELD: During the break?
MR. CLARKE: I don't think I can put a number of minutes on it, but not very long.
THE COURT: I wanted to take a brief break, and then we'll go to 3:45. And the Court reporter tells me she's going to take the whole afternoon. How about a 10-minute break? Let's go.
(The following proceedings were held in open Court:)
THE COURT: Thank you, counsel. Mr. Clarke.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, can I ask you to come back down?
(The witness complies.)
MR. CLARKE: Now, first of all, Dr. Cotton, are these the same films that you've just looked at and testified about with regard to the Bundy stain as well as the foyer stain?
DR. COTTON: Yes.
MR. CLARKE: Now, what would I'd like to do is focus your attention in particular to what's labeled item no. 78, the stain from Mr. Goldman's boot.
DR. COTTON: Yes.
MR. CLARKE: First of all, is this the--what you referred to earlier as the cocktail film or cocktail x-ray?
DR. COTTON: Yes, it is.
THE COURT: All right. This is 257-A, correct?
MR. CLARKE: Yes.
MR. CLARKE: As far as banding patterns that are present for the boot, can you tell us about them? What do you see?
DR. COTTON: There are quite a few bands in this pattern, and I count one, two, three, four, five, six, seven, eight, nine, ten, eleven.
MR. CLARKE: When you see 11 bands as you've just counted them, does that have any particular meaning to you as a DNA analyst?
DR. COTTON: Yes.
MR. CLARKE: What?
DR. COTTON: If we have two bands--this is--four probes went into this cocktail. If we have two bands with each probe, if we only had one person, the maximum number of bands we could have would be eight. The fact that we have 11 bands here means that we have more than one person here, and it generally--I would conclude that we have two. I certainly wouldn't conclude that we have three.
MR. CLARKE: With regard to these bands, are there any other opinions you can offer, not just from the number of bands, but from also what appears to be differences in how dark the bands are?
DR. COTTON: The bands that are the first--the first eight, these ones at the top, are all very easy to see. They are pretty intense. They're not all identical, but they're pretty intense. The three lower bands, this one, this one and this one (Indicating) are much lighter. And from that, I would make a preliminary conclusion that I had one person there who had a--where there was a fair amount of DNA from that person and a second person who is only represented or who is represented by a much smaller amount of DNA.
MR. CLARKE: Is the darkness of the bands themselves some indication of the relative amounts of DNA present?
DR. COTTON: As I've said earlier, that's the most useful and easiest way to think about bands being darker and lighter. There are a lot of technical things that can go into bands being darker and lighter. But of all the reasons why a band would be darker or lighter than another, the primary one is going to be how much DNA is present, and then there will be a whole series of secondary things that can affect the intensity as well.
MR. CLARKE: Following your review of the banding patterns for the boot stain, did you reach any preliminary or other conclusions about which if any of the three persons, Mr. Simpson, Nicole Brown or Ron Goldman, that could or could not have been donors of the DNA from that boot stain?
DR. COTTON: Yes, we did.
MR. CLARKE: All right. Can you describe those, please?
DR. COTTON: The initial conclusions that we made using just this film alone was that there was a DNA banding pattern, and that is the top eight bands, that is consistent with the DNA banding pattern from Nicole Brown. And I know this is dark on the screen here, but she also has eight bands in similar positions.
MR. CLARKE: All right. If you could, would you mark those locations, but use a different colored arrow.
(The witness complies.)
MR. CLARKE: Now, with regard to the three bands that are lighter in intensity--and I'm referring to again the lane with the boot stain on it--and they are the three arrows in pink--are there any other individuals on this particular film that can either be excluded or included as possible donors of those--I'm sorry--of those bands?
DR. COTTON: Mr. Simpson does not have--he has a band down here that may be in about the same position as this one. He has no band in the vicinity where this last band, that is the lowest one in item 78 is (Indicating). So he doesn't seem to be a possible donor to the DNA in item 78. Mr. Goldman has three bands in his pattern, and that's not his whole pattern, but the three lower bands in his pattern seem to be consistent with these three light bands. And I wouldn't want to make any further conclusion about those three light bands other than they're consistent with him. But that's about all you can say.
MR. CLARKE: What about all of those bands in Mr. Goldman's samples that are above the three that you have marked or where the three pink arrows are?
DR. COTTON: Based on this film, we can't tell whether any of those other bands--let me rephrase that. Based on this film, we can't tell whether or not there are any additional bands in item 78 that may or may not be consistent with Mr. Goldman's known sample.
MR. CLARKE: Now, turning your attention to what appears to be the lower or bottom-most band on Mr. Goldman near the bottom of the film.
DR. COTTON: Yes.
MR. CLARKE: Do you see that?
DR. COTTON: I do. You're talking about this one right here (Indicating)?
MR. CLARKE: Yes. Is there any band in that location in the evidence sample itself, the boot stain?
DR. COTTON: I don't recall that there is, but I'd like to look at the original to give you an answer.
MR. CLARKE: All right. Before--
THE COURT: Before--
MR. CLARKE: I was just going to say that. Before you do that, could we have this particular--
THE COURT: All right. Let's move the exemplar arrow off the diagram though, off the autorad.
DR. COTTON: The--
THE COURT: The current arrow, the live arrow, pull it off the diagram.
DR. COTTON: Oh, this one.
THE COURT: Yeah. Pull it off so there's no confusion.
(The witness complies.)
MR. CLARKE: And, your Honor, could this be--
THE COURT: This would be 257-A(2).
MR. CLARKE: Very good.
THE COURT: All right. Mr. Fairtlough, do we have that captured?
MR. FAIRTLOUGH: Yes, your Honor.
THE COURT: All right.
MR. CLARKE: Dr. Cotton, showing you the original film, could you look at the light box and see if there are any band in the location on the boot stain in a similar location to Mr. Goldman's lower-most band?
DR. COTTON: I don't see one that I would be happy interpreting. I don't think there is.
MR. CLARKE: Now, does that--does the fact that there's no band that you would be able to interpret from this particular--
THE COURT: Let's--you want to clear the arrows on this?
(The witness complies.)
MR. CLARKE: And again, if you could point out, Dr. Cotton, just the location that we're talking about.
DR. COTTON: Can you move it up a little? There we go. All right. You were asking me if there's anything equivalent to this band in Mr. Goldberg over here in item 78. I don't see anything even when I look at the original film that's clearly distinguishable in that area as a band.
MR. CLARKE: As a result of simply this film from this cocktail, are you able to exclude or include Mr. Goldman as a donor of some of the DNA in that boot stain?
DR. COTTON: I really wouldn't want to make any conclusion based on this film alone.
MR. CLARKE: Why not?
DR. COTTON: It's not enough information.
MR. CLARKE: And when you say "not enough information," what do you mean?
DR. COTTON: What I mean is, there are three additional bands in item no. 78. They appear to be consistent with three of the bands from Mr. Goldman's pattern, but apart from that statement, it doesn't mean that it is his. From this film, you can't say that they match his. In terms of his whole pattern, you can't say he's--that Mr. Goldman is definitely a contributor to item no. 78. On the other hand, you can't say he's definitely not a contributor to item no. 78. So basically from this film, you are making an inconclusive statement. I don't know is the bottom line regarding Mr. Goldberg.
MR. CLARKE: And would you want further information if you were able to obtain further information to make such a conclusion?
DR. COTTON: Yes.
THE COURT: All right. Ladies and gentlemen, we're going to take a brief recess at this time. Please remember all my admonitions to you. And we'll stand in recess for 15 minutes. And, Mr. Clarke, why don't you get your box.
(Recess.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Back on the record. All parties are again present. Deputy Magnera, let's have the jurors, please. And my recollection is, we're going to quit at quarter to 4:00. And we will take a brief break, and then we have a discovery matter to take up.
MR. BLASIER: Sanctions.
MR. DARDEN: Did I make a noise?
THE COURT: You heard the word sanctions and your ears perked up.
(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. And, Mr. Clarke, where would you like Dr. Cotton?
MR. CLARKE: I'm sorry?
THE COURT: Where would you like Dr. Cotton? At the podium or--
MR. CLARKE: I think the podium is the order of business.
THE COURT: All right, Dr. Cotton. Mr. Clarke.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, I'm going to ask you to take one more look at the first single genetic marker film that involved a probe ms1 that's already been marked as People's exhibit 257-B as in boy.
MR. NEUFELD: I'm sorry. Mr. Clarke, which--
THE COURT: This is 257-B.
MR. CLARKE: Yes.
MR. NEUFELD: Which marker?
THE COURT: 257-B is ms1.
MR. CLARKE: Is that right, Dr. Cotton? Is this the single genetic marker film, ms1?
DR. COTTON: Yes.
MR. CLARKE: Okay. Directing your attention again at this point just to the boot stain, item no. 78, did this genetic marker produce any banding results?
DR. COTTON: Yes, it did.
MR. CLARKE: All right. Could you use the arrow and show us where they are?
DR. COTTON: This band right here, second one here, a third one here (Indicating). There is a fourth one on the film and I can't distinguish where it is on the screen. Now, on the film, I know from reviewing all of the data that it's consistent with the lower band in Mr. Goldman's pattern, but I don't really want to try to put an arrow to it on the screen because frankly I can't see it on the screen.
MR. CLARKE: Okay. Let's break that up a little bit. When you say that there's a fourth band there, how do you know that?
DR. COTTON: Well, I just refreshed my recollections by looking at the film before they put it on the elmo, and I know from reviewing the data in the case folder that this--this pattern on this film was analyzed separately on the computer imaging system as well, and not only--I mean, I see a band there as do--did the other person who did the work, but--
MR. NEUFELD: Objection as to what the other person saw.
THE COURT: Sustained. That part is stricken.
DR. COTTON: The computer imaging system also picks out four bands in this pattern.
MR. CLARKE: Now, let me ask you about that a little bit. When the computer imaging system picks out a band, but apparently that band was what? Would you call it faint, very weak or what?
DR. COTTON: It's faint. I don't--it's sort of odd because the other faint bands--I mean, for example, the faint band in item 52, even on the screen, I can pretty much pick out where it is. However, I can't do that on the screen for the fourth band in item 78 although it's not difficult to see on the film.
MR. CLARKE: And you're referring to what is not difficult to see on the film?
DR. COTTON: The fourth band in item 78 that I have not tried to put an arrow to on the screen.
MR. CLARKE: All right. Now, just referring to the three arrows that you've placed under the boot stain, no. 78, can you make any statements about possible contributors of DNA from the three known samples from Mr. Simpson, Nicole Brown and Ron Goldman?
DR. COTTON: Yes.
MR. CLARKE: All right. Would you describe that, please?
DR. COTTON: Well, from this film alone, you couldn't exclude either--any of the three.
MR. CLARKE: Now, by any of the three, you're referring to Mr. Simpson, Nicole Brown or Ron Goldman?
DR. COTTON: Yes.
MR. CLARKE: Now, that opinion or that statement that you can't exclude anyone, is that limited to just the information on this single genetic marker alone?
DR. COTTON: That's limited--if you only had this as your information and you didn't have any other information, that's the conclusion I would come to based on this film by itself.
MR. CLARKE: By looking at all of the films that relate to this particular evidence item, is Mr. Simpson included or excluded?
DR. COTTON: Based on all the films for this evidence item, he's excluded.
MR. CLARKE: So he's not a potential donor of the DNA that you were able to determine from the boot stain?
DR. COTTON: That's right. Based on all of the data, he is not.
MR. CLARKE: Okay. Now, turning to the other two potential donors based on this test or this single genetic marker, in particular, Nicole Brown and Ron Goldman, can you describe for us what it is about them that makes them potential donors?
DR. COTTON: The top band in item 78 and the lower band in item 78 that we can see here on the screen are consistent with the two bands in Nicole Brown. Woops. The middle band of the three that we can see on the screen is consistent with the upper band in Ronald Goldman. The band that I can't easily identify for you on the screen is in this vicinity down here (Indicating), and based on all of the sizing data, is consistent with this lower band, but I can't demonstrate it to you on the screen.
MR. CLARKE: Based on the results that you were able to determine from this single genetic marker film as well as the cocktail that was immediately shown before this one, are there any conclusions just up to the point of you having looked at these two films about donors to the boot stain, no. 78?
DR. COTTON: The conclusions based on the two would be essentially similar to the conclusions based on the one. Nicole Brown is consistent with being a donor and it's inconclusive at this point whether or not Ronald Goldman is a donor.
MR. CLARKE: What do you mean "inconclusive"?
DR. COTTON: There's still not enough information to exclude him and there's not really a sufficient amount of information to include him as a donor.
MR. CLARKE: Is this a situation in which you would, if possible, like to have more information?
DR. COTTON: Yes.
MR. CLARKE: All right. If we--I'm sorry. If we could then print this particular.
THE COURT: Yes. Let's take the live arrow and take it off.
MR. CLARKE: Dr. Cotton, can you take the one arrow that's still alive so to speak?
DR. COTTON: I'm sorry.
MR. CLARKE: And just move it up at the top.
(The witness complies.)
THE COURT: All right. So we don't confuse anything when we print this out.
MR. CLARKE: Referring you, if I could, Dr. Cotton, now to what's been previously marked exhibit 257-C, is that the same film that you described earlier involving the probe or the genetic marker ms31?
DR. COTTON: Yes.
MR. CLARKE: That item we just printed, your Honor, would that be 257--
THE COURT: B(2).
MR. CLARKE: Thank you.
(Peo's 257-B(2) for id = print out)
MR. CLARKE: Now, referring you, Dr. Cotton, to this second single genetic marker ms31, were banding patterns developed on again the boot stain?
DR. COTTON: Yes.
MR. CLARKE: And could you use the arrows to describe their location?
DR. COTTON: There are two bands using this probe ms31 from the boot stain, and I'm marking them with the arrows, and there are no additional bands in that lane that are visible. Just these two.
MR. CLARKE: First of all, with respect to Mr. Simpson, from this film alone, can you exclude him as a possible donor of either of the bands that appear in the lane involving the boot?
DR. COTTON: Yes, you can definitely exclude him.
MR. CLARKE: Does that mean then that he is excluded in total from having donated any DNA on the boot stain?
DR. COTTON: Yes.
MR. CLARKE: Now, what about the remaining two individuals, Nicole Brown and Ronald Goldman?
DR. COTTON: Well, neither of them are excluded. Nicole Brown has two bands that are--I'm going to--wait a minute. How should I do this? She has two bands, and they are in a similar position to the two bands that you see from item 78. Ronald Goldman has a single band with this probe. It is in virtually the same position as a single band--or sorry--the lower band in Nicole Brown's pattern. It's--there is a band here in this position, but if he's made--if there's any contribution from--in item 78 from a band that's consistent with Mr. Goldberg, you couldn't tell because it overlaps with the two bands that are consistent with Nicole Brown. So this doesn't provide you any additional information as to whether there's anything else in 78 that's consistent with Mr. Goldberg. You just couldn't tell from this information.
MR. CLARKE: All right. First of all, that one arrow that's pointed to the right, unlike the direction of the other three arrows, did you use that direction simply so you wouldn't overlap the arrow over the band in Mr. Goldman's lane?
DR. COTTON: That's right.
MR. CLARKE: So there's no meaning to the direction of the arrow? It's just a matter of--
DR. COTTON: No. That's right. It would have just covered the band that I was about to talk about.
MR. CLARKE: Now, following the cocktail x-ray film and then these now two individual genetic markers, as far as your preliminary conclusion as to Nicole Brown being a potential donor of the DNA on the boot stain, is that still true after this second marker?
DR. COTTON: Yes, it is.
MR. CLARKE: Is it also still true that with respect to Mr. Goldberg, the results are inconclusive?
DR. COTTON: That's right.
MR. CLARKE: In other words, he may or may not have been a donor or possible donor of that DNA?
DR. COTTON: That's right.
MR. CLARKE: Would you then turn again to a third genetic marker done alone and by itself?
DR. COTTON: Yes.
MR. CLARKE: Would that be ms43 or what was previously marked People's exhibit 257-E?
DR. COTTON: Yes.
THE COURT: D?
MR. CLARKE: E.
THE COURT: E.
MR. CLARKE: And could we print the image currently with the arrows, which would be 257-C--
THE COURT: 2.
MR. CLARKE: I'm sorry. 257-D(2). The previous film was 257-D that was shown.
THE COURT: All right. Do we have that captured?
MR. FAIRTLOUGH: Yes, your Honor.
THE COURT: All right. Let's clear the telestrator.
MR. CLARKE: Dr. Cotton, did you have a chance to look at the ms43 film?
DR. COTTON: Yes.
MR. CLARKE: Dr. Cotton, showing you now the ms43 genetic marker film, first of all, is there information or banding patterns provided by the boot stain, no. 78?
DR. COTTON: Yes.
MR. CLARKE: And could you again use the arrows to indicate what banding patterns exist?
DR. COTTON: There's two bands still in item 78, and I'm marking them with the arrows, and they are similar in position to the two brands--bands from Nicole Brown.
MR. CLARKE: Now, first of all, as far as Mr. Simpson is concerned, is he excluded at this marker as well as a donor of DNA from the boot stain?
DR. COTTON: Yes, he is.
MR. CLARKE: Turning to Nicole Brown, you just indicated with two arrows bands that are in the same relative position as those for the boot stain?
DR. COTTON: Yes.
MR. CLARKE: What about Mr. Goldberg?
DR. COTTON: There--
MR. CLARKE: I'm sorry. Did one of your arrows on Nicole Brown cover one of Mr. Goldman's bands?
DR. COTTON: Yes. Do you want me to make it be the other way?
MR. CLARKE: If you could just switch the direction like you did previously.
DR. COTTON: What am I doing wrong? I want to undo those, but--
MR. FAIRTLOUGH: Okay. Just hit "undo."
(The witness complies.)
DR. COTTON: Okay.
MR. CLARKE: Now, as far as Mr. Goldberg is concerned, are there banding patterns in his sample? Could you just describe where they are?
DR. COTTON: He has two bands for this probe, and they are here and here (Indicating).
MR. CLARKE: Now, what about the presence of any bands in any similar location in the boot stain itself?
DR. COTTON: There really is not--are not any other additional bands in the boot stain that can be clearly seen. So we have no additional information about whether he's included or excluded.
MR. CLARKE: As a result of this genetic marker, is Nicole Brown still a possible donor of the DNA found on the boot stain?
DR. COTTON: Yes.
MR. CLARKE: Is Mr. Goldberg excluded now at this point or not?
DR. COTTON: No.
MR. CLARKE: Why not?
DR. COTTON: There haven't been--of the--if you look in the boot stain and you look at the few bands that we've seen that are not consistent with Nicole Brown, they are consistent with Mr. Goldman's. So-- but they're not very many of them. So basically you're not coming to any strong conclusion thus far.
MR. CLARKE: And would the results as far as he's concerned and this stain still remain inconclusive?
DR. COTTON: Yes.
MR. CLARKE: Okay. Could we then print this? And could you take the arrow, Dr. Cotton, and move it up high?
(The witness complies.)
MR. CLARKE: I believe that would be 257-E(2), your Honor.
THE COURT: 257-E(2).
(Peo's 257-E(2) for id = printout)
THE COURT: All right. That matter--that one's captured.
MR. CLARKE: Again turning your attention to what's previously been marked as 257-F, is that the film related to the marker g3 that you described earlier?
DR. COTTON: Yes, it is.
MR. CLARKE: All right. And again, Dr. Cotton, pointing your--directing your attention to banding patterns that exist in the boot stain, could you indicate any bands that are present?
DR. COTTON: With this probe and based on just looking at the film, there are three bands, two that are darker and a single one that is quite light, but is right here (Indicating).
MR. CLARKE: So in other words, you have now shown with three different arrows what appear to be two bands of--at least in comparison to the bottom arrow, two bands of greater intensity and one you've described as lighter than the intensity of the first other below those first two?
DR. COTTON: That's right.
MR. CLARKE: Now, as far as this particular genetic marker is concerned, what statement if any can you make about the possibility that Nicole Brown and/or Ronald Goldman could have contributed the DNA found on this--I'm sorry--found on the boot stain at this marker?
DR. COTTON: Nicole Brown could have been a contributor and the results with regard to Ronald Goldman are still inconclusive. The single band here that's lighter (Indicating) is consistent with his upper band. There is no lower band that we can see. And this second--secondary pattern, that is the light bands that we've seen all along, if there were a band down here, we would--we may or may not be able to see it. So essentially, with regard to Ronald Goldman, the results were still inconclusive. With regard to Nicole Simpson, she's--Nicole Brown Simpson, she's still included.
MR. CLARKE: Could you place two arrows on the appropriate bands for Nicole Brown?
(The witness complies.)
MR. CLARKE: And could that be printed and marked, your Honor, as 257-F(2)?
THE COURT: So marked.
(Peo's 257-F(2) for id = printout)
MR. CLARKE: Incidentally, Dr. Cotton, before we leave this particular film, is there any statement you can make about Mr. Simpson's banding pattern and the boot stain?
DR. COTTON: He's excluded from--as being a donor of the DNA from the boot stain.
MR. CLARKE: Incidentally, you've described the fact that he was excluded as a donor on at least one earlier genetic marker. Does it make any difference if you are excluded at one genetic marker or all the genetic markers that you look at?
DR. COTTON: If you were asking a question about paternity, it would. If you're comparing two DNA samples and you're asking if they could be from the same person, then you would normally expect to have multiple exclusions unless the people were related. In this case, there are multiple exclusions. So there's no doubt that he's excluded as being a donor to the DNA in item 78.
MR. CLARKE: All right. And lastly, referring to the fifth genetic marker that you've described with regard to the Bundy stain and foyer stains, that is ynh24?
DR. COTTON: Yes.
MR. CLARKE: Your Honor, referring to People's exhibit 257-G. I would like to show that to the witness as well.
THE COURT: Yes.
MR. CLARKE: Lastly, Dr. Cotton, referring--referring you to this last genetic marker, ynh24, are there any banding patterns on this x-ray film with regard to the boot stain?
DR. COTTON: Yes.
MR. CLARKE: And could you use the arrows again and describe their location?
DR. COTTON: There are two bands close together, and I'm marking them with the arrows.
MR. CLARKE: With regard to the individuals, that is the three individuals, the known samples, can you make any statement first of all about Mr. Simpson as being a possible donor of the DNA on the boot stain?
DR. COTTON: He is excluded.
MR. CLARKE: What about Nicole Brown?
DR. COTTON: She is included. She has two bands also in a similar position to the ones in the boot stain.
MR. CLARKE: And could you use the arrows again to note their location that is in her sample?
(The witness complies.)
MR. CLARKE: And then lastly, what about Mr. Goldberg?
DR. COTTON: There are no additional bands with this probe from the boot stain. So there's no information, that is, he doesn't seem to be there based on this probe alone, and based on the compilation of the data, it doesn't add anything to what we've already seen.
MR. CLARKE: So with respect to Mr. Goldberg, after having reviewed the cocktail x-ray as well as the five individual genetic marker locations, what statement can you ultimately make about Mr. Goldberg and the stain material from the boot?
DR. COTTON: Based on all of the information together, he cannot be definitively excluded, but he cannot be definitively included either. So the results regarding Mr. Goldberg and item 78 are inconclusive.
MR. CLARKE: What about Nicole Brown and the DNA found in that stain from the boot?
DR. COTTON: Based on all of the films, she is included based on the computer imaging data. The bands that are consistent with Nicole Brown in item 78 do match the bands in the known sample from Nicole Brown.
MR. CLARKE: From the five different--and actually I'm sorry. Let me ask that again. But if we could first--and if you would move that arrow up a little hire, and then we'll print this image. Your Honor, may this be marked 257-G(2)?
THE COURT: So marked.
(Peo's 257-G(2) for id = printout)
MR. CLARKE: Dr. Cotton, actually you can resume the witness stand, if you would.
(The witness complies.)
MR. CLARKE: As far as Nicole Brown is concerned--and I believe you just stated that she in fact could be a donor of the stained material from the boot?
DR. COTTON: Yes.
MR. CLARKE: What's that based on? In other words, how many genetic markers and how many bands?
DR. COTTON: Five genetic markers and 10 bands.
MR. CLARKE: As far as Mr. Goldberg is concerned, how many bands were you able to detect--well, let me rephrase that. Other than the 10 bands from Nicole Brown, how many additional bands were you able to determine existed in this stain?
MR. NEUFELD: Objection to the term "from" given the ruling before regarding mixtures.
THE COURT: Sustained.
MR. CLARKE: Other than the 10 bands--well, let me ask it this way.
THE COURT: Rephrase the question.
MR. CLARKE: How many bands total did you detect in this evidence, this boot stain?
DR. COTTON: Altogether, between the cocktail and the other probes, there are 12. There are 11 in the cocktail and there is one band on ms1 that you can see that does not show up in the cocktail. So that brings it to a total of 12 bands altogether.
MR. CLARKE: And what about when you add in that fifth genetic marker ynh24? Does that add any more bands to the total number that you detected?
DR. COTTON: Yes. Umm, okay. We have 11 in the cocktail, we have an additional one in ms1 that you don't see in the cocktail and then from ynh24. So that's 12. And from ynh24, we have two more. So that brings it to a total of 14.
MR. CLARKE: Did Nicole Brown's known sample match 10 of those 14 bands?
DR. COTTON: Yes.
MR. CLARKE: That left four more bands; is that right?
DR. COTTON: That's right.
MR. CLARKE: That didn't come from her?
DR. COTTON: That's right.
MR. CLARKE: Could they have come from Ronald Goldman?
DR. COTTON: They could have.
MR. CLARKE: But your results overall in evaluating the entire results as far as he is concerned are what?
DR. COTTON: They're inconclusive because we can't--we only have four bands and he has nine. So we only have a partial bit of information, and we don't know what the other-- we know that four bands is only part of somebody's pattern given the number of probes we've looked at, and we don't know what the other bands in that pattern look like. So we can't say anything further.
MR. NEUFELD: Your Honor, in light of the witness' answer, I move to strike that portion of the answer because it was speculative as to it being inconclusive.
THE COURT: Overruled.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Incidentally, as far as children are concerned--and let's take, for instance, either the Bundy stain, item 52, or the foyer stain, item 12. Do you recall your testimony about those two items?
DR. COTTON: Yes.
MR. CLARKE: And in particular, the DNA?
DR. COTTON: Yes.
MR. CLARKE: And you described how those items in fact matched the DNA of Mr. Simpson?
DR. COTTON: Yes.
MR. CLARKE: What about children of an individual? Is children's DNA the same or different from the parents?
DR. COTTON: Different.
MR. CLARKE: Why is it different?
DR. COTTON: Because the child is only going to inherit half of the DNA from each parent. You know, this is a lot easier to do on a diagram than verbally.
MR. CLARKE: Okay. Would it help you--
DR. COTTON: But you have to--
THE COURT: Excuse me. I thought we went through this once already.
MR. CLARKE: I think we did a little bit, your Honor. I'd like to go into it in a little more detail.
THE COURT: I don't think so.
MR. CLARKE: All right.
DR. COTTON: It won't be the same. The child's DNA will not be the same as the parents' DNA. And there--actually I should--should make--
THE COURT: All right. Actually, doctor, there's no question pending at this point.
DR. COTTON: Okay.
THE COURT: Proceed.
MR. CLARKE: Can you briefly describe why they're different without the aid of a diagram?
THE COURT: I thought we got that you get half from each.
MR. CLARKE: I think it bears a little bit of explanation.
THE COURT: I don't think so.
MR. CLARKE: Very good.
THE COURT: Let's move on.
MR. CLARKE: Do you have, in terms of your RFLP testing in this case, one further set of autorads?
DR. COTTON: Yes.
MR. CLARKE: And what do they relate to?
DR. COTTON: They relate to item 13.
MR. CLARKE: And when you say item 13, what are you talking about?
DR. COTTON: The sock.
(Discussion held off the record between the Deputy District Attorneys.)
MR. DARDEN: Your Honor, with the Court's permission, I would like to show just one of the photographs of the sock that's been previously marked as an exhibit.
(Brief pause.)
MR. CLARKE: That would be exhibit number 169, your Honor.
THE COURT: All right.
MR. CLARKE: All right. Dr. Cotton, do you have with you the films from your testing of the sock?
DR. COTTON: Yes.
MR. CLARKE: And could you hand them to me? And with the Court's permission, we will have you describe the same process. First of all, is that the only evidence item on these particular films?
DR. COTTON: Yes.
MR. CLARKE: On these films, do they also include the same known samples from the three parties in this case?
DR. COTTON: Yes.
MR. CLARKE: All right. And if you could--and I'm going to ask you to step down here.
(The witness complies.)
MR. CLARKE: And, your Honor, if we could have marked as what I believe would be 258-A.
THE COURT: 258-A.
(Peo's 258-A for id = cocktail)
THE COURT: Is this going to be the cocktail?
MR. CLARKE: Yes.
MR. CLARKE: Dr. Cotton, showing you what will be marked People's exhibit 258-A, can you just tell us what that is?
DR. COTTON: This is the cocktail film.
THE COURT: Doctor, you're going to have to turn around and talk to the jury here.
DR. COTTON: This is the cocktail film that has the three known samples on it and the DNA that was obtained from item 13, which is the sock.
THE COURT: Mr. Clarke.
MR. CLARKE: Thank you.
MR. CLARKE: Now, Dr. Cotton, referring you to now what's on the projection screen, you have described that as the cocktail x-ray film for the evidence item number 13, which is the sock?
DR. COTTON: Yes, I have.
MR. CLARKE: Now, with regard to the various controls--and I believe you've described the controls are the boxed lanes at the very top--are those the same types of controls or the same controls as you've described earlier with regard to the other evidence items?
DR. COTTON: Yes, they are, except that there's no k562 cell line DNA on this film. There is the normal TDS DNA on this film.
MR. CLARKE: Why isn't there the k562?
DR. COTTON: I don't actually know why it wasn't loaded on this film. There--it may have been just to make sure there was plenty of space between each sample. It doesn't make any difference in the analysis whether it's there or not there.
MR. CLARKE: Why not?
DR. COTTON: Because we don't have standard sizes for those bands yet, we're not using it officially as a standard. One of the reasons we're putting it on films is so that we can accumulate sizes for that DNA. So our standard that we want to check very closely is the TDS, and that serves the function of having a known human DNA on this gel.
MR. CLARKE: That's the member of your laboratory again, TDS?
DR. COTTON: Yes.
MR. CLARKE: From looking at this particular x-ray film, does it appear that this test worked properly?
DR. COTTON: Yes, it does.
MR. CLARKE: Did you obtain banding patterns for the sock, that is DNA removed from the sock?
DR. COTTON: Yes, we did.
MR. CLARKE: All right. Could you with the pointer again then indicate the location of those banding patterns in the sock.
(The witness complies.)
MR. CLARKE: Now, you have indicated with eight arrows what appear to be eight bands; is that correct?
DR. COTTON: That's right.
MR. CLARKE: It looks like there is one band and then a little lower, two bands fairly close together?
DR. COTTON: Yes.
MR. CLARKE: And then another band below that?
DR. COTTON: That would be this one (Indicating).
MR. CLARKE: And one below that?
DR. COTTON: Yes.
MR. CLARKE: And then what appear to be three bands fairly close together?
DR. COTTON: Yes.
MR. CLARKE: Now, can you examine the banding patterns from Nicole Brown, Ron Goldman as well as Mr. Simpson, and first of all, can you tell us if any individuals on this particular film are excluded as possible donors of that DNA?
DR. COTTON: Yes. There are individuals on the film that are excluded.
MR. CLARKE: Okay. Let's start with that.
DR. COTTON: Mr. Simpson's known sample is in this lane, and he is excluded. The bands in the socks do not line up with the bands in Mr. Simpson's pattern. There's only one down here (Indicating).
MR. CLARKE: So Mr. Simpson could not have donated that DNA that was found on the sock?
DR. COTTON: That's right.
MR. CLARKE: All right. What about the remaining two individuals?
DR. COTTON: Mr. Goldberg could not have donated the DNA on the sock. That pattern is clearly different than the pattern on the sock.
MR. CLARKE: So he would be excluded as a donor of the bloodstains found on that sock?
DR. COTTON: That's right. He would be excluded.
MR. CLARKE: What about Nicole Brown?
DR. COTTON: Nicole Brown is not excluded. She has eight bands and they are consistent and in similar positions to the DNA bands that are found on the sock.
MR. CLARKE: And could you use the arrow again to show us the location of her bands on this particular film?
(The witness complies.)
MR. CLARKE: Now, if you would just move the pointer on up to the top.
(The witness complies.)
MR. CLARKE: As a result of your interpretation of this initial autorad, this film, this cocktail film, what conclusions if any could you reach?
DR. COTTON: The conclusions that you can reach from this film are that Mr. Simpson and Mr. Goldberg could not have been the donor of the DNA found on the sock and Nicole Brown could be the donor of the DNA found on the sock.
MR. CLARKE: As far as the material that you received in the laboratory--and I'm referring to no. 13, the sock--what did you actually receive?
DR. COTTON: We received DNA that had been extracted by the laboratory for the California Department of Justice.
MR. CLARKE: What form did you receive it in?
DR. COTTON: It was in a liquid form.
MR. CLARKE: So you didn't receive the sock itself?
DR. COTTON: No, we didn't.
MR. CLARKE: All right. What was the next step in this process of analyzing this particular evidence item?
DR. COTTON: Next step is the same as the set of films we saw before, and that is to go through with each probe one at a time and identify the bands that are seen individually with each--with each probe.
MR. CLARKE: Would again ms1 be an appropriate place to begin?
DR. COTTON: Sure.
MR. CLARKE: The single genetic marker?
DR. COTTON: Sure.
MR. CLARKE: And could this be marked 258-B, your Honor?
THE COURT: 258-B.
(Peo's 258-B for id = film)
MR. CLARKE: And I'm sorry. I don't believe I asked if we could print the current image, but I'm--
THE COURT: No, but you may.
MR. CLARKE: --told from my ears that that's already being done.
THE COURT: All right.
MR. CLARKE: And would that image be 258-A(1)?
THE COURT: Correct.
(Peo's 258-A(1) for id = printout)
MR. CLARKE: With regard--before we do that, while this is still on the screen, Dr. Cotton, as far as these eight bands that are in the sock DNA itself, do they match the eight bands from Nicole Brown?
DR. COTTON: Yes, they do.
MR. CLARKE: Now, turning your attention, if I can, to what will be exhibit 258-B, could you examine that particular x-ray?
MR. CLARKE: And with the Court's permission, I would like to display that.
MR. CLARKE: Dr. Cotton, referring you to 258-B, that x-ray film is from your testing at what genetic marker?
DR. COTTON: Ms1.
MR. CLARKE: All right. And did it produce banding patterns for the DNA from the socks?
DR. COTTON: Yes, it did.
MR. CLARKE: Could you indicate with the arrow the locations of those bands?
(The witness complies.)
MR. CLARKE: Now, starting with Mr. Simpson's sample off to the left, could he have been a donor of the DNA found at those two bands--I'm sorry--the DNA found at this genetic marker as reflected by those two bands you've just marked or is he excluded?
DR. COTTON: No. He's excluded.
MR. CLARKE: What about on Goldman?
DR. COTTON: He is also exclude.
MR. CLARKE: Why is that?
DR. COTTON: Well, he has two bands also, but they are not in the same position as the two bands seen in the DNA from the sock.
MR. CLARKE: What about Nicole Brown?
DR. COTTON: She is not excluded.
MR. CLARKE: Why is that?
DR. COTTON: She has two bands also, and they are in the same positions as the two bands shown in the sock or seen in the sock.
MR. CLARKE: And could you place arrows at those two locations in her sample?
(The witness complies.)
MR. CLARKE: Is it the case then that at this genetic marker and with regard to the two bands found in the sock, Nicole Brown matches those two bands?
DR. COTTON: Yes, it is.
MR. CLARKE: All right. Your Honor, could this be printed as well?
THE COURT: Yes. 258-B(1).
MR. CLARKE: Thank you.
(Peo's 258-B(1) for id = printout)
MR. CLARKE: All right. Did you then proceed with testing at another genetic marker?
DR. COTTON: Yes, we did.
MR. CLARKE: What marker was that?
DR. COTTON: Ms31.
MR. CLARKE: Your Honor, could we have marked as 258-C the ms31 x-ray?
THE COURT: Ms31, 258-C.
(Peo's 258-C for id = ms31 x-ray)
MR. CLARKE: Now, Dr. Cotton, on the board, do you have this particular film that you just described as the ms31 single genetic marker film?
DR. COTTON: Yes.
MR. CLARKE: And with regard to this genetic marker, did the sock DNA produce any banding patterns?
DR. COTTON: Yes, it did.
MR. CLARKE: Could you use the arrows again to point them out?
DR. COTTON: They are right here and right here (Indicating).
MR. CLARKE: As far as Mr. Simpson is concerned, could he have been the donor of the blood on that sock?
DR. COTTON: No, he could not have.
MR. CLARKE: Why?
DR. COTTON: He has two bands. They are right here (Indicating) close together in a different position from the bands on the sock. So he could not have been the donor of the DNA on the sock.
MR. CLARKE: What about Ron Goldman?
DR. COTTON: Ron Goldman has a single band and it is in a similar position to the lower band in the sock. If you had only this film by itself, you couldn't make a conclusion either way, whether he was a contributor--based on the totality, he's not. But on this--on this film alone, you couldn't make a conclusion.
MR. CLARKE: Now, what do you mean, based on the totality that he couldn't be--I'm sorry--that he is excluded?
DR. COTTON: Based on the cocktail and all of the additional films, he's clearly excluded. Based on this film alone, if this was all you had, you wouldn't be able to exclude him.
MR. CLARKE: Finally, what about Nicole Brown?
DR. COTTON: She is not excluded either. She has two DNA bands and they are marked by the arrows and in a similar position to the DNA bands seen in the sock.
MR. CLARKE: At this marker then, does Nicole Brown match the DNA found in the sock?
DR. COTTON: Yes, she does.
MR. CLARKE: Now, at this point, you have examined the cocktail and two of these single genetic marker films?
DR. COTTON: That's right.
MR. CLARKE: That you've described in Court here today?
DR. COTTON: Yes.
MR. CLARKE: And at this point, does Nicole Brown in fact match the DNA at each step?
DR. COTTON: Yes, she does.
MR. CLARKE: That it matches--I'm sorry--matches the DNA found in the sock?
DR. COTTON: She does.
MR. CLARKE: All right. Could we print that then, your Honor?
THE COURT: Yes.
MR. CLARKE: I believe that would be--
THE COURT: 258-C(1).
MR. CLARKE: Thank you.
(Peo's 258-C(1) for id = printout)
MR. CLARKE: And I would ask that another film be marked as 258-D, which I believe to be ms43 for this same sample.
(Peo's 258-D for id = film)
MR. CLARKE: Dr. Cotton, showing you what's been marked or will be marked 258-D, is that in fact the film for typing of the sock at the ms43 genetic marker?
DR. COTTON: Yes, it is.
MR. CLARKE: And now that it appears on the screen, were there in fact DNA patterns produced from the sock DNA as well as the same three individuals we've discussed earlier?
DR. COTTON: Yes, there were.
MR. CLARKE: All right. Could you demonstrate the location of the banding patterns from the sock itself?
DR. COTTON: There's one here and a second one here (Indicating).
MR. CLARKE: Let's look first at Mr. Simpson again off to the left. What statement or what conclusion can you make about whether or not that is his DNA in the sock?
DR. COTTON: He has two bands. They are not in the same positions as the DNA bands from the sock or from the DNA found on the sock and--the d--the sample found on the sock. So he is excluded as being a donor of the DNA that was extracted from the sock.
MR. CLARKE: I'm sorry. Could you just point to his two bands?
DR. COTTON: Yes. Right here (Indicating).
MR. CLARKE: Now, if you would turn your attention off to the right to Mr. Goldberg, and as far as his DNA, what conclusions can you reach at this genetic marker?
DR. COTTON: He has also two bands, one up at the top here, one down towards the center (Indicating). His top band is similar in position to the upper band in the DNA from the sock, but the lower band is not. And, therefore, he is excluded as being a donor of the DNA extracted from the sock.
MR. CLARKE: What about Nicole Brown?
DR. COTTON: She has two bands also with this probe. They are in similar positions to the bands from item 13, which is the sock, and she cannot be excluded.
MR. CLARKE: All right. Could you demonstrate with the pointer by placing arrows again at her banding patterns?
(The witness complies.)
MR. CLARKE: Actually, I was just going to say, is your last arrow a little bit low?
DR. COTTON: Yes, it is. There we go (Indicating).
MR. CLARKE: Are you tired of making arrows?
DR. COTTON: Could be.
MR. CLARKE: All right. Maybe if you could just move the arrow itself up at the top, and we'll ask that this be printed.
THE COURT: 258-D(1).
(Peo's 258-D(1) for id = printout)
MR. CLARKE: At this point, Dr. Cotton, as a result of the cocktail film that is that portion of the test as well as now three genetic markers, does Nicole Brown still match the DNA found in the sock?
DR. COTTON: Yes, she does.
MR. CLARKE: Turning to the genetic marker g3, did you also type the sock at that location?
DR. COTTON: Yes, we did.
MR. CLARKE: And, your Honor, could that be marked 258-E?
THE COURT: E.
(Peo's 258-E for id = film)
MR. CLARKE: Showing you, Dr. Cotton, what will be 258-E, can you tell us what that film is?
DR. COTTON: This is the film using probe g3 for samples from this gel.
MR. CLARKE: All right. Again, each of the single genetic marker films that you've been describing about the sock, they are all taken from the same membrane that the cocktail was?
DR. COTTON: That's right.
MR. CLARKE: And was it done in this same process that you described with the earlier evidence samples where you simply remove the probes from one genetic marker, apply new ones and then look at that particular portion of the DNA molecule to determine if samples match or don't match?
DR. COTTON: That's right.
MR. CLARKE: Okay. Shifting your attention now to g3, what's on the projector at the moment, and in particular, with regard to the sock, can you describe any banding patterns that were present on the sock?
DR. COTTON: Yes. There is a banding pattern. It has two bands, and I'm marking them with the arrows (Indicating.
MR. CLARKE: Now, what about Mr. Simpson's DNA? What statement if any can you make about it?
DR. COTTON: This is probe g3, and I see one band in Mr. Sim--Simpson here. I believe he actually has another band in g3. Doesn't show up on this film. It would have to be identified on the cocktail. So--at least, in looking at the film just a moment ago, I don't see it. So he has a single band that we can see on this film alone. It's not consistent with the sock and he's excluded as a donor of the DNA on the sock.
MR. CLARKE: Now, I believe you mentioned a band that you can't see on the g3 probe itself. Did you mention you could see it elsewhere?
DR. COTTON: What I probably should do is look again at the cocktail for this set.
MR. CLARKE: I refer you to what's been marked People's exhibit 258-A. Is that the cocktail for this particular sample?
DR. COTTON: Yes, it is. Yes, it is.
MR. CLARKE: And with regard to that band, have you had an opportunity to look at the cocktail?
DR. COTTON: Yes.
MR. CLARKE: With what result?
DR. COTTON: His pattern on this cocktail is exact--is like the pattern on the other cocktail, and he has one band that's almost down at the bottom of the gel near the last molecular weight marker. And I can see it clearly on this cocktail, and from the individual films, one can deduce that that's the second g3 band.
MR. CLARKE: Now, Mr. Simpson is excluded at a number of different probes from having been the donor of this DNA found on the sock; is that right?
DR. COTTON: That's right.
MR. CLARKE: And this genetic marker is simply another instance in which he is excluded?
DR. COTTON: That's right.
MR. CLARKE: Turning to Mr. Goldman, what statement if any can you make about whether or not he could have been the donor of the DNA from the sock?
DR. COTTON: He also has one band that I can see. I believe Mr. Goldman also has in the cocktail a band--a small band down here (Indicating). You can't see it on this film. However, he's--his band is not anywhere near the vicinity of the bands from the sock, and he is also excluded as a donor of the DNA that was extracted from the sock.
MR. CLARKE: What about Nicole Brown?
DR. COTTON: She has two bands. They are in similar positions to the bands in the sock and she is not excluded.
MR. CLARKE: At this marker g3, does Nicole Brown match the DNA found in the sock?
DR. COTTON: Yes, she does.
MR. CLARKE: Could you indicate with two arrows again the locations of her bands?
(The witness complies.)
MR. CLARKE: And if you would move the arrow on up, we will ask that this be printed as well. I believe that would be 258-E(1), your Honor.
THE COURT: Yes.
(Peo's 258-E(1) for id = printout)
MR. CLARKE: All right. And finally, referring you to what appears to be the last film, which is marked ynh24, would that be the fifth genetic marker that the sock was tested at?
DR. COTTON: Yes, it would.
MR. CLARKE: Your Honor, may that be marked as 258-F?
THE COURT: Yes.
(Peo's 258-F for id = film)
MR. CLARKE: And perhaps, Dr. Cotton, if you could clear the arrows.
(The witness complies.)
MR. CLARKE: Showing you this last film, is this indeed film from your testing at the location or the genetic marker ynh24 of again the sock?
DR. COTTON: Yes, it is.
MR. CLARKE: Did this particular genetic marker also produce banding patterns from the sock?
DR. COTTON: Yes, it did.
MR. CLARKE: Could you use the arrows to indicate the location of those bands?
(The witness complies.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, Dr. Cotton, with respect to the known samples--and let's start with Mr. Simpson--what statement if any can you make about the possibility of his contributing that DNA?
DR. COTTON: He has two bands with this probe. They are not in the same position as the bands in the sock and he is excluded as being a donor of the DNA from the sock.
MR. CLARKE: What about Mr. Goldman?
DR. COTTON: Mr. Goldman also has two bands. They are not in the same position as the DNA from the sock and he is also excluded as being a donor of the DNA on the sock.
MR. CLARKE: Finally, with regard to Nicole Brown, what statement if any can you make about her being the contributor of that DNA?
DR. COTTON: She has two bands. They are in similar positions to the bands from the sock, and she is not excluded.
MR. CLARKE: And could you indicate with the arrows the location of her bands?
(The witness complies.)
MR. CLARKE: At this particular location--and I think it's ynh24; is that right?
DR. COTTON: That's right.
MR. CLARKE: Does Nicole Brown match the DNA found in the sock?
DR. COTTON: She does.
MR. CLARKE: All right. Your Honor, may this again be printed?
THE COURT: 258-F(1).
(Peo's 258-F(1) for id = printout)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Mr. Clarke, I need to--
MR. CLARKE: Could I ask two brief questions while the witness is standing?
THE COURT: Two brief questions.
MR. CLARKE: I'll word them carefully.
MR. CLARKE: Dr. Cotton, with respect to all of the testing conducted at your laboratory on the sock, is it then the case that as a result of all of these different genetic marker locations, that Nicole Brown matches the DNA found from that sock--found in that sock?
DR. COTTON: That is the case.
MR. CLARKE: Are you aware, Dr. Cotton, of other testing conducted by any other laboratories on this sock?
DR. COTTON: Yes, I am.
MR. CLARKE: Is that from the same or other stains on the sock?
DR. COTTON: It would be from the same stain.
MR. CLARKE: Are you aware of testing done on any other portions of that sock?
DR. COTTON: I don't think so.
THE COURT: That's four. All right. Ladies and gentlemen, we are going to take our recess for the afternoon. Please remember all of my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, and also, do not allow anybody to communicate with you. And we'll see you back here tomorrow morning at 9:00 o'clock. Dr. Cotton, you're excused. You are ordered back tomorrow morning, 8:45. All right. We'll stand in recess for about 10 minutes, and then we'll take up the other motions.
(Recess.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Two matters. Motion for discovery by the Prosecution regarding certain comments made by Mr. Blasier concerning EDTA testing or analysis of EDTA testing results. Secondly, a motion for a curative instruction as the result of certain questions asked by the Prosecution. We'll take up the discovery matter first. Who wants to make the argument on behalf of the People? Mr. Harmon.
MR. HARMON: Yes, your Honor. Thank you. Just to set the stage, and actually since I filed my letter with the Court, things have taken on much more of a complex situation than one could have ever imagined. So I think it's important to recap the events that led up to this. The Court recalls Mr. Blasier during cross-examination posed the hypothetical of Mr. Matheson. He led up to talking about is it possible to test for EDTA. And then he said: "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 is consistent with it possibly coming from a reference vial?" Mr. Goldberg clearly objected: "that is an improper hypothetical. It is inconsistent with the known facts," And the Court overruled the objection. At that point in time, your Honor, the only testing done on the rear gate for the presence of EDTA was done by the Prosecution at the Prosecution's request. It was done by the FBI. There was in fact in reality no basis, real or imagined, no factual basis based on reports that that could have been true in any way, shape or form. Wishful thinking, of course. Hope springs eternal. But in reality, the FBI report reads: "no EDTA was identified in the bloodstains removed from the q204 swabbing of the rear gate at the crime scene and from the 0206 sock," which we know is 13-A(1). Now, that was the state of our knowledge at that time.
THE COURT: What was the date of that report?
MR. HARMON: March 1st, your Honor.
THE COURT: All right. Thank you.
MR. HARMON: And I don't know when it was given to the Defense, but I know it was shortly thereafter. And if there's a question, we can--we can clarify that. So, you know, our ears perked up because we assumed we would be able to pose a hypothetical based on the scientific reality, not based on something that may have gone on that we were not aware of. The world saw what happened when Mr. Goldberg tried to pose hypotheticals in various shapes or forms that were based on the reality, the scientific reality, not the wishes and hopes of the people to my left. During the course of the argument, the Court never inquired of Mr. Blasier what his good faith basis, but the Court instead inquired of Mr. Goldberg what his good faith basis for his objections were. But a curious event happened unsolicited. And I have the tape and I have it cued up to this point. Mr. Blasier felt compelled, for reasons that may become clear in a few minutes, to explain to you what his good faith basis. I would like to show the tape, but before I show the tape, I was sitting back there. So I could--
THE COURT: No. You don't need to show the tape because I was sitting here as well.
MR. HARMON: Well, if the Court recalls. And if the Court doesn't recall, I'd like the Court to--if I can't show the tape, play the sound for the tape.
THE COURT: No. Counsel, you don't need to do it. I was here--
MR. HARMON: Well, Mr.--when Mr.--
THE COURT: Excuse me, counsel. You don't need to do it. I'm not going to hear it. I was here. I heard it. I saw it. I don't need to see it again.
MR. HARMON: Well, in my presentation, I would like to describe that as Mr. Blasier began to make his offer of proof, which he continued with, most of the people at this table shushed him, and I could swear I saw people reach out to try to pull him down to get his attention to keep him from making his--explaining what his good faith basis, and it's clearly audible on the tape. As I mentioned, the Defense has never done any testing of this. If they've done anything, they read that report and that's it. And you can't change the words and you can't change the letters on that. So we pointed that out in the oral argument. The Court seemed interested as a matter of discovery that this was news to us, that the words that he uttered that there's an expert who's done something that's formed an opinion based on this report. So I asked Mr. Cochran--Mr. Blasier was gone by then--could I get the discovery. You said take it up informally the way the statute says. I took it up informally. Mr. Blasier was gone. So I filed a letter with the Court on Monday asking for discovery, and this is what I have. I have nothing. My hands are empty. I asked for a letter in response explaining what it is. I have nothing to show for my letter. But as the letter filtered around through the Defense team, Mr. Douglas came up with something. He saw it. And perhaps I can file the original with the Court. Mr. Douglas provided us with a Defense supplemental witness list. The original typed date was March 13th. That was lined out. And then it's written March 17th. And Mr. Douglas represented to Mr. Darden that, "oh, this is--I gave this to you. I just saw this and I gave this to you on March 17th, Saint Patrick's Day. Don't you have it?" Mr. Darden has no recollection of getting it. I've had the transcript of that day. It's a Friday. Searched. There's no reference to it. Interestingly, curiously, the Defense did take some active role about witness lists on Saint Patrick's Day, March 17th. That's the day that they dumped Ed Blake and Mark Taylor or Myron Scholberg from the witness list. Actually, I don't know if the Court needs to-- would you like to see that?
THE COURT: No. I have a copy of that letter in the Court file.
MR. HARMON: So my letter did sort of shake out something, but it shook out something that, according to our best efforts, we've never seen before. What's interesting about that, just as a side, you know, this is the Dr. Rieders that I'm accused of inappropriately contacting.
THE COURT: Tampering with.
MR. HARMON: Tampering with or I hear he's tamper proof, but-- and if that's true, if that's true--and I think there's some serious questions that we have to take up about the validity of this document. If that's true and they knew all that, then I didn't talk to him in my--to my best recollection until after they added him to the witness list, if this is legit, which I think there's some serious questions about. I checked with the Court documents. The Court has no record of that document. At least I checked with Mrs. Robertson. She could not find such a document. So what do we have here? Is that document legitimate? Is this just a cover up for an offer of proof that may not have been legitimate, a good faith basis at the time? I don't know what the answers are, but I think the seriousness of the implications of what happened to Mr. Goldberg in front of this jury and the fact that at least as of today, they claim that he's going to be a witness in this case and we have absolutely no reciprocal discovery, they have enough alleged information from him to ask a fraudulent, deceptive, hypothetical question in front of the jury and then cause us to appear that our hypothetical, which is based on the scientific reality of these tests, to be--to make it seem like we're doing something wrong. At this point, your Honor, I think the Court needs to inquire whether this document is legitimate. I think at a minimum, we need the discovery now. We have pages and scraps from a handful of experts. I know there's been in-camera review and discussions of these things, but the whole purpose behind prop 115 and reciprocal discovery was to ensure a fair trial. And when hiding the ball if there's in fact a ball allows one side to ask a fraudulent hypothetical--
THE COURT: Apparently there's a ball.
MR. HARMON: Well, there is now. There is now. Clearly there is. I have it. I gave it to you, your Honor. Mr. Douglas gave it to us after I filed my letter Monday. But clearly, at this point, we are entitled to have the material, that good faith basis that they all shushed him about making was made on. So I think at this point, your Honor, there seems to be no question. And clearly, my request is directly related to what happened to Mr. Goldberg in front of the jury.
THE COURT: All right. Thank you, Mr. Harmon. Mr. Blasier. Good afternoon.
MR. BLASIER: Good afternoon, your Honor. First of all, I did respond to the People's letter. I faxed it to the Court last night. I faxed it to Mr. Hodgman's fax number, which is the fax number we have on our list. It went out at 7:43 and 30 seconds last night. I have it right here. Did the Court get its copy?
THE COURT: Yes, I did.
MR. BLASIER: And that responds to everything raised in Mr. Harmon's letter in terms of any discovery obligations we have. I might say that, without making a speech, that fortunately, with the FBI's cover report, they sent us their data as well. And obviously it's within our right and obligation to have data reviewed by other scientists. And if it's been reviewed by other scientists who we choose not to call, that's fine. We don't have to tell them who they are and what they've said. If it happens to have been reviewed by a scientist that we might call, if there's a report, we're required to turn it over. If there isn't, we aren't. We've provided the name of a scientist who we may or may not call by the way. We have not made that decision. This is the FBI test results. Presumably, it's their expert that's going to come in and testify about it. Depending on what he says on cross-examination will determine who we call in response to him. But the bottom line here is that Dr. Rieders we may or may not call. I don't think we legally even have to disclose his name, but we have. There's no further material that's discoverable at this time, and we've complied with all of our obligations. I don't want to talk about Mr. Goldberg's questions until we get to that particular issue, but I don't think we need all the rhetoric that we've had. We've complied and that's the bottom line.
THE COURT: All right. Thank you. Any brief response to that, Mr. Harmon?
MR. HARMON: You know, what he just told you is so inconsistent with the voters that enacted proposition 115. In my recollection with your second discovery order which reiterated your first discovery order which--and I don't have it before me, but it is my recollection of that discovery order that you can't just say, well, we can't decide whether we're going to call these guys until after we hear what the direct and cross-examination is about. That is clearly incompatible with the letter and the spirit of section 1054. And it is my recollection--maybe it's fading--that your discovery order clarified that that was not an option for the Defense. And if you read that report, that's what the FBI agent is going to say. And Mr. Blasier said that he's got information to the contrary from the mouth or mouths of some experts, and the only way that's going to come out of anyone's mouth is if they get up in the blue chair and testify and subject themselves to cross-examination. So to allow them to continue to defer the legal obligation under reciprocal discovery that they should have complied with when they made the decision, if they really made it on March 17th, really thumbs your nose and our noses and everybody's nose at the clear spirit. We don't have--we have notes. We have very little. And I know there have been extensive in-camera discussions on it, but I wonder at what time are we ever going to get back on track. Is this Court ever going to say, "you can't present that. You sandbag too long," because I don't think--
THE COURT: Mr. Harmon, let me ask you a factual question.
MR. HARMON: Sure.
THE COURT: Refresh my recollection as to the report from the FBI regarding the EDTA testing. Did it include the GCI, the gas chromatograph printouts?
MR. HARMON: It sure--it did--no. There's no question that there's a flicker of hope that there's something in there that they could get somebody to say something that they'd like. But it is not going to be special agent roger marts, the only witness we intend to call. I read you the statement. It is clear, it is unambiguous. And so to quibble about whether roger marts is going to break down on this stand under withering cross-examination and say, "okay, EDTA is everywhere, all right," that's just not going to happen. You can read it. You can analyze it through an independent expert. The report stands as what it is. If this is the level that Prop 115 and Section 1054 can be violated, we're never going to get anything under expert witness because you could always say, "well, you know, I have to wait to see how good I am on cross-examination, because if I can get all my stuff in, then I'm not going to turn it over to you." And that is clearly not what the voters intended, that is clearly not what the statute says.
THE COURT: All right. Thank you, counsel. All right. So the witness is Dr. Rieders, correct?
MR. BLASIER: If we call a witness, that would be who we would call, yes.
THE COURT: All right. And you have no reports at this time?
MR. BLASIER: That's correct.
THE COURT: Do you have any notes, any communications I take it?
MR. BLASIER: Not from him I don't.
THE COURT: All right. All right. I'll hear from counsel on the curative instruction regarding comments by questions by Mr. Goldberg. Mr. Blasier.
MR. BLASIER: Thank you, your Honor. The issue before you now is whether the questions that were asked by Mr. Goldberg last week were--were so improper that they merit some sort of curative instruction and sanction. It's our position that they are. There--there are a number of things--actually, there's one incident that I didn't put in the report, and that was--in my letter. That was his question to Mr. Matheson about whether--DNA results under the fingernail scrapings. Mr. Goldberg had represented to all of us that he was not going to try to introduce any results through a hearsay witness, and we proceeded on that grounds. We did not object to the chain information that he was putting in. And then he sneaks that one in intentionally to try to get those results before the jury in advance of actually having a witness competent to testify to it. Unfortunately, Mr. Matheson answered the question before I could object, and the objection I believe was sustained if I recall. Perhaps more importantly are the questions regarding EDTA, which in my view were clearly improper. He acknowledged that they were improper even in his statement to the Court after they were made. They--in their response, which I just got a couple minutes ago, but I've had a chance to skim. The hypothetical I asked was very circumscribed and very narrow and talked about, "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 that is consistent with it possibly coming from a reference vial?" That was it.
THE COURT: That's the second time I've heard it today.
MR. BLASIER: Okay. The questions that Mr. Goldberg asked were nowhere close to that. I mean, he could have clearly constructed a hypothetical that mirrored mine, and he was ultimately allowed to do that and could have done that and would have been appropriate. But what he starts to do is ask questions about: "when you testified 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?" That was sustained because there was foundation for that. Then he says: "now, Mr. Matheson, have you heard that, according to the report, of the EDTA testing?" That was objected to and it was sustained. Then he says: "hypothetically, if the FBI testing showed that there was known," and we had to object to that. Those aren't close to the hypotheticals I asked at all. He was clearly intending or trying to get testing results, his read on the testing results in front of the jury in the form of clearly improper hypotheticals. Then he refers to it again: "sir, if the facts of their hypothetical were changed so as to indicate that the testing revealed the absence of EDTA." And it seems to me that--that those questions were probably thought out in advance, that they--that he knew they were improper, he should not have made them, and we're asking the Court to make the curative instruction that we've included in the letter and to sanction Mr. Goldberg. Thank you.
THE COURT: Thank you, Mr. Blasier. Mr. Goldberg.
MR. GOLDBERG: Thank you, your Honor. Good afternoon.
THE COURT: Good afternoon, sir.
MR. GOLDBERG: Mr. Blasier in his letter in summarizing the nature of the hypotheticals that he asked Mr. Matheson states on page 1 that--this is his paraphrase. "are there tests in existence that can determine the absence of EDTA in blood sample?" That's nothing like the question that has been read by Mr. Harmon and Mr. Blasier a few moments ago. It does not in any way convey the gravamen of the two questions that he asked. There was a second question which I also won't repeat because I know the Court's familiar with it about EDTA testing in connection with the socks. The gravamen of these questions is to clearly indicate to the jury that the items were tested and that no Ed--that EDTA was found in the items; therefore, raising the inference or the specter that the items were planted. It is clear if we are going to approach this in an intellectually honest way, something that--a concept that I'm not sure that my colleagues are familiar with, that what happened here is--
THE COURT: You know, Mr. Goldberg, I realize that you're--that this motion is directed towards you in a request for sanctions, but it doesn't help me decide these issues for that kind of rhetoric to be involved in it. And I thought I made it clear earlier. And I don't mean to single you out. You're just the latest example. But I don't think it's appropriate.
MR. GOLDBERG: We discussed the issue of intellectual honesty when I last addressed this, and we discussed the issue of my comment regarding the propriety of this questioning, and I tried to explain to the Court what my philosophy was in the way that I go about arguing an issue before the Court, and I think it is important to understand that in order to place into perspective the comments that I had that the Defense is now suggesting constitute an admission that the questions that I asked of this witness were improper. And that is why I'm getting into it and that is why I think that it is necessary to discuss it to some extent, your Honor.
THE COURT: Well, I have to tell you, it's not helpful to my making a decision as to the request for sanctions and a curative instruction.
MR. GOLDBERG: Okay. Let me move on then if I might.
THE COURT: All right.
MR. GOLDBERG: Your Honor, what I am suggesting is that, if we look at the questioning that Mr. Blasier asked, is there a real belief on anyone's part that Mr. Matheson is an expert in EDTA testing? No. Is there any real belief on either party's side that he is going to illuminate us as to the issue of EDTA testing or add something to this discussion of evidentiary value? No, there is not.
THE COURT: But you would have to assume that somebody who's the assistant director of the crime lab has some fundamental working knowledge of gas chromatography since the LAPD's blood alcohol unit specialize--has, you know, highly specialized gas chromatography instrumentation available to them and they're responsible for the maintenance of that machinery and they're responsible for training chemists to testify in Court regarding gas chromatography. So I assume that he knows something about it.
MR. GOLDBERG: And I agree. And if the only question were, as Mr. Blasier summarized it, are there tests in existence that can be used to detect EDTA, I would agree Mr. Matheson is qualified to answer that although his answer would be of little or know evidentiary value in saying yes, there are. In terms of how those tests are set up or what they mean or how to interpret them, I think we would all have to agree Mr. Matheson is not going to illuminate us on that issue. So analyzing what the Defense did in asking the two questions that they asked, it is to float out the idea that there was testing for EDTA and the idea that it was detected and the idea that the evidence was planted. And all I'm suggesting, your Honor, is that the Court with an enormous amount of experience both as a trial lawyer and a Judge can look at those questions and see that that is the underlying intent with which they were asked. So now the Defense has turned around and argued that I improperly asked questions that are from a legal perspective entirely the same or mirror images of the questions that the Defense asked that have no effect in front of the jury except to counteract the questions that they asked. In other words, to suggest the exact opposite of the questions that they asked, which was: "hypothetically, if you assume the testing was done and no EDTA was found, would that indicate that the items were not planted," or something to that effect. That was the import of the series of questions. So if theirs are improper, mine is improper. If theirs are proper, mine is proper. But they have not articulated any principal legal distinction of materiality between the series of questions that I asked and those that they asked. And the effect and the intent with which both parties asked these questions were exactly the same and the effect it would have in front of this jury is exactly the same. And that's what I was talking about when I was talking about my view of trying to approach it in an intellectually consistent or honest manner. That yes, I objected to their question because I felt that Mr. Matheson wasn't qualified to answer it and that he couldn't really illuminate it. And if I'm going to be intellectually consistent, then I have to agree that the questions that I asked should not have been allowed. But your Honor is the trial Judge. I'm not. And as the Court pointed out on Friday when we discussed this the last time, you have very wide discretion in terms of a hypothetical question. And once the Court has properly allowed that they--determined they are allowed to ask this question concerning EDTA evidence, then I am allowed to ask it, and I think the Court ultimately agreed with that position because after rereading the transcript, the Court did in effect allow us to ask a question that was materially the same as the one the Defense asked. The only difference between their questions and ours of legal significance and materiality is that we had a good faith belief in the factual basis for our question, because I read an FBI report that did in fact say no EDTA was found in these items. And counsel did not necessarily have a good faith belief as was articulated by Mr. Harmon, and that's why there's a relationship between the comments that he made and those I made which I won't repeat and also a potential discovery issue that Mr. Harmon raised. And it appears that what may be happening here is that the Defense is making allegations of prosecutorial misconduct to divert the Court's attention away from the real issue, which I believe are those that Mr. Harmon raised that I'm not going to repeat now. The Defense also complained of my turning to the jury several times during my questioning, which I did do. And the Court may also recall that this topic as well was discussed when Mr. Scheck did it. This is again something that is subject to the discretion of a trial Judge and there's no right or wrong answer in this regard. The same thing is true--
THE COURT: I recollect my comment was often times it's helpful to trial counsel to pay attention to what's going on on the faces of the jurors, and one can only assess that by turning to look at them from time to time.
MR. GOLDBERG: And at one point, I actually did object at sidebar that Mr. Scheck appeared to be directing many of his questions to the jurors and some of the more argumentative ones, and the Court said that that was--that that practice was unobjectionable. So I don't see any basis for objecting now. The next thing was the objection that I made to the effect that the evidence that they were offering was without factual basis or contrary to the known facts. This is a proper objection to make for a hypothetical question because a hypothetical question usually has to be based either on something that is already introduced or in the trial Court's discretion, if an offer of proof has been made, you can allow counsel to ask hypothetical questions as to facts which will be introduced. So this is a proper way of trying to phrase a legal objection. So I don't see any impropriety in my making what is a proper legal objection. Next, the hand-shaking incident was raised. The hand-shaking incident was brought out or attempted to be brought out by the Prosecution after we asked Mr. Matheson whether Mr. Fung or Andrea Mazzola or anyone else ever made any comments representing enmity or anger or hostility to the Defendant. There was a hearsay objection that was raised to one of those questions, your Honor, but I believe--and it was sustained. I believe that my question did not call for hearsay because Mr. Matheson's answer would have said, no, Mr. Fung has never said anything to indicate any hostility towards the Defendant. So it's the absence of a statement that we were trying to prove, not the presence of one. Therefore, there is no declarative statement that was coming in for the truth of the matter asserted. It is relevant because we have to remember that the allegations that the Defense is raising are not that Mr. Fung has been incompetent or careless or so on, but that he is part of a conspiracy and that he has done a number of things in furtherance of that conspiracy, such as allowing the blood vial to be in the possession of the police overnight, allowing the police to come into the evidence processing room, doctoring exhibits and the like. And in order to counter that, I think we are entitled to put in information in evidence concerning whether or not Mr. Fung has ever expressed anything against the Defendant or to prove his lack of bias. That objection having been sustained on the hearsay grounds, the advocate is going to look for a non-hearsay way of trying to get in the same evidence. In other words, trying to show conduct of Mr. Fung. If we had evidence that Mr. Fung had a giant poster of Mr. Simpson, of the Defendant that he had autographed by the Defendant that he had in his office at the crime lab, that would be relevant evidence, non-hearsay evidence that we could introduce. If he always went around telling people how much he loved the Defendant or admired the Defendant, that would be relevant and non-hearsay evidence, would come in under the state of mind exception. The conduct of Mr. Fung that appeared to be unrehearsed at least on his part of shaking the hands and hugging the Defense attorneys and even the Defendant--
THE COURT: Hugging the Defense attorneys?
MR. GOLDBERG: I don't know whether he hugged the Defendant, but there appeared that there was some embrace that went on between at least one of the Defense attorneys and Mr. Fung. Is relevant conduct evidence that goes to his state of mind at or around the time that the incident occurred. So it was a proper question. It may be a strange and unusual instance--incident to see happen in Court and the Prosecution may want to try to put on evidence of this in another form. But it was a proper question to have asked Mr. Matheson. If the Court believes that it was improper, as the Court apparently did, maybe it was the phraseology or maybe it was the lack of personal knowledge. An objection can be sustained, but there was no impropriety in trying to elicit information concerning Mr. Fung's lack of bias towards the Defendant.
THE COURT: All right. Mr. Goldberg, your time is about to expire.
MR. GOLDBERG: And I would like to briefly mention that as to the DNA results, I don't recall asking Mr. Matheson any question about DNA results. I asked him whether it had been submitted for DNA testing, whether or not that could provide further information. I did ask a series of questions along those lines.
THE COURT: You did dance into that area regarding the blood underneath the fingernails, whether or not there had been any confirmatory testing.
MR. GOLDBERG: I don't think I asked him for any results and I don't think I asked him whether that affected his opinion. I simply asked him whether that could be done to provide more information.
THE COURT: All right.
MR. GOLDBERG: Your Honor, I also did want to see if I could address this issue as to the page 4, which they again introduced into their authorities, which doesn't directly relate to anything important--
THE COURT: No. We're not going to discuss page 4 again. All right. Thank you, Mr. Goldberg.
MR. GOLDBERG: Thank you, your Honor.
THE COURT: All right. Mr. Blasier, you have time available for any brief response if you feel it's necessary.
MR. BLASIER: Just very briefly. Thank you. After all we've been through together, I can't imagine that any counsel on either side of this table would think about asking that Fung question and do it without talking to you first. I mean that was just an outrageous question. Nonassertive hearsay conduct outside the Court, it's clearly something that if you really thought that this would be admissible, you'd better ask about it beforehand because it's obviously pushing the envelope way beyond. My comment about facing the jury, I have no objection to him facing the jury. It's just that it was a clear tip off, here comes a question that's improper and it's going to be sustained, and he's going to ask it so he can get the information in front of the jury right there where they can see it before you tell him to be quiet. And I think that's improper.
THE COURT: All right. Thank you, counsel. All right. As to the EDTA discovery matters, at this point in time, I accept the representation from the Defense that their decision whether or not to call Dr. Rieders will remain unsettled until the witnesses from the FBI testify and see what the natures of their testimony. As soon as that witness has testified, then we will revisit this area. And I'm sure Mr. Harmon will remind the Court after the FBI person testifies. As to the request for sanction against Mr. Goldberg, I'm going to decline to do that at this time. The Court sustained, I think appropriately, the objections that were made by the Defense. The manner in which the Court sustained the objections--the Court even sustained the Court's own objections before the questions were finished. I think the tone of the Court's voice, the eye contact the Court had with the jurors indicated clearly to the jurors that that was not a proper question, and I think there was some level of the Court's embarrassing Mr. Goldberg in front of jury, I think that was sufficient sanction. Counsel are going to be on notice that the Court is going to be much more weary about these hypothetical questions in the future since it appears I'm going to have to referee that as well. All right. We'll stand in recess.
MS. CLARK: Your Honor, we have a stipulation concerning the American airlines employees.
THE COURT: Something we can agree upon? By golly, I'll stay and listen to that. All right. Miss Clark.
MS. CLARK: Yes, your Honor. There was an order by the Court and that we--all parties agreed to--that nobody would be allowed to watch--none of our witnesses that were non experts would be allowed to watch television. We have American Airline employees that when they fly, CNN is constantly on. So what they've done is, they've grounded these people for the duration of the trial because they can't avoid CNN. You know, there's nothing they can do about it. They--you know, going off to coffee, there's-- so in order to let American airlines fly and continue in operation, Mr. Cochran has agreed to stipulate that the employees may go back to work and that there will be no objection to their having watched any television that they may see in the course of the flight, and the employees will agree not to make any conscious effort to watch it. In fact, they will try to avoid it as best they can, but we're all aware of the fact that not everything will be avoidable.
THE COURT: All right. Is this agreement acceptable to the Defense?
MR. COCHRAN: Absolutely, your Honor. I've been in touch with Mr. Tom Holiday of Gibson, Dunn and Crutcher that represents American Airlines and we assured them that would apply to any witnesses called, that they'll try to refrain from watching--but we didn't release the extent of your Honor's order. So we certainly don't want to have people grounded because of this. So we agree with that.
THE COURT: A reasonable resolution. All right. Thank you, counsel. We'll stand in recess. 9:00 o'clock.
(At 4:35 p.m., an adjournment was taken until, Thursday, May 11, 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 Wednesday, May 10, 1995
Volume 143 Pages 26694 through 26941, inclusive
-------------------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------------------
I N D E X
Index for volume 143 pages 26694 - 26941
-------------------------------------------------------------------------------------------
Day date session page vol.
Wednesday May 10, 1995 a.m. 26694 143 p.m. 26796 143
-------------------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------------------
CHRONOLOGICAL INDEX of witnesses
People's (402) witnesses direct cross redirect recross vol.
Cotton, Robin 26696gc 26717n 26725gc 26734n 143
-------------------------------------------------------------------------------------------
PEOPLE'S WITNESSES direct cross redirect recross vol.
Cotton, Robin 143 (Resumed) 26748gc (Resumed) 26800gc
-------------------------------------------------------------------------------------------
ALPHABETICAL INDEX of witnesses
Witnesses direct cross redirect recross vol.
Cotton, Robin 26696gc 26717n 26725gc 26734n 143 (402)
Cotton, Robin 143 (Resumed) 26748gc (Resumed) 26800gc
-------------------------------------------------------------------------------------------
EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
257 - Autorad 26698 143
257-A - Autorad cocktail 26699 143
257-A(1) - Autorad 26794 143 computer printout with 7 arrows
257-A(2) - Autorad 26860 143 computer printout with 23 arrows
257-B - Autorad 26700 143 genetic marker ms1
257-B - Autorad 26803 143 (Re-marked)
257-B(1) - Autorad 26814 143 computer printout with 4 arrows
257-B(2) - Autorad 26871 143 computer printout with 8 arrows
257-C - Autorad 26701 143 genetic marker ms31 - 10/11/94
257-C - Autorad 26813 143 (Re-marked)
257-D - Autorad 26701 143 genetic marker ms1 - 11/1/94
257-D - Autorad 26818 143 (Re-marked)
257-D(1) - Autorad 26826 143 computer printout with 7 arrows
257-E - Autorad 26701 143 genetic marker ms43
257-E - Autorad 26826 143 (Re-marked)
257-E(1) - Autorad 26834 143 computer printout with 7 arrows
257-E(2) - Autorad 26877 143 computer printout with 7 arrows
257-F - Autorad 26702 143 genetic marker g3
257-F - Autorad 26835 143 (Re-marked)
257-F(1) - Autorad 26843 143 computer printout with 7 arrows
257-F(2) - Autorad 26879 143 computer printout with 7 arrows
257-G - Autorad 26702 143 genetic marker ynh24
257-G - Autorad 26844 143 (Re-marked)
257-G(1) - Autorad 26847 143 computer printout with 3 arrows
257-G(2) - Autorad 26882 143 computer printout with 5 arrows
257-D(2) - Autorad 26874 143 computer printout with 6 arrows
258-A - Autorad cocktail 26888 143 socks
258-A(1) - Autorad 26894 143 computer printout with 16 arrows
258-B - Autorad 26894 143 genetic marker ms1 - Socks
258-B(1) - Autorad 26897 143 computer printout with 5 arrows
258-C - Autorad 26897 143 genetic marker mc31 - Socks
258-C(1) - Autorad 26899 143 computer printout with 5 arrows
258-D - Autorad 26900 143 genetic marker ms43 - Socks
258-D(1) - Autorad 26902 143 computer printout with 5 arrows
258-E - Autorad 26902 143 genetic marker g3 - Socks
258-E(1) - Autorad 26906 143 computer printout with 4 arrows
258-F - Autorad 26906 143 genetic marker ynh24 - Socks
258-F(1) - Autorad 26908 143 computer printout with 5 arrows