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: Good morning, counsel.
MR. COCHRAN: Good morning, your Honor.
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with counsel, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. The People are represented by Mr. Darden and Mr. Clarke. Mr. Neufeld, is there something you need to take up?
MR. NEUFELD: Just to put you on notice, your Honor, about thirty seconds ago Mr. Clarke furnished me with a twelve-page single-spaced document describing how they calculated the numbers for the mixed stains, which was apparently created yesterday. All I'm asking for is we can either do it now, it will take me about twenty minutes, or we can do a recess mid-morning for about twenty minutes. I'm going to need to examine this. To the extent I have any objections about what they did here as a foundation matter, I want to put them on the record, but I'm going to have to review this document and I obviously can't do it in the next thirty seconds.
THE COURT: Mr. Clarke, when do you anticipate getting to the mixed stain calculations?
MR. CLARKE: After the break, if there is a mid-morning break.
THE COURT: All right.
MR. NEUFELD: I'm asking for a few extra minutes at the mid-morning break.
THE COURT: All right. Sounds reasonable. Let's have the jurors.
MR. CLARKE: Your Honor, two brief items that I would like to bring up. My request is I would like to use immediately the large light box.
THE COURT: Immediately?
MR. CLARKE: First thing with some very brief testimony and then ask that the jurors be allowed to walk by the light box. And I'm going to ask--go ahead--I'm going to ask that that be done in two segments because there are three sets of results and we can only put two up at once. It is going to be my request to show the Rockingham foyer, the boot drop, as well as the Bundy stain, that set of six autorads across one row, and have the witness also use the single cocktail autorad with the shoeprint, 56, have the jurors walk by.
THE COURT: Uh-huh.
MR. CLARKE: And then do the same thing with actually almost no questioning at all with regard to the six autorads that relate to the sock.
THE COURT: All right. Any comment, Mr. Neufeld?
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: I'm sorry, just a clarification. You want them to do three walk-throughs because there are three different sets of autorads?
MR. CLARKE: Two, two walk-throughs.
MR. NEUFELD: Two different sets?
MR. CLARKE: Three sets.
MR. NEUFELD: But you can't do them all at once? Is that what you are saying?
MR. CLARKE: Yes, correct. There is one other item, and I believe it can wait for the break, and it relates to what the Court asked me to bring up with regard to this witness.
MR. NEUFELD: I have no objection.
THE COURT: All right. Let's get the monster in.
(Brief pause.)
MR. CLARKE: Is that position acceptable, your Honor?
THE COURT: I can't think of any other way to do it.
(Brief pause.)
MR. COCHRAN: Where does the Court want us to stand? The jurors are going to walk by in front? And may we have a showing at some point for Mr. Simpson?
THE COURT: Absolutely. In fact, are you going to put this up right now? How do you propose to put them up on the monster?
MR. CLARKE: It was my plan to place--I don't know if the Court can see.
THE COURT: The reason I am asking is timing wise was I think Mr. Simpson is allowed to see how it is displayed to the jury.
MR. CLARKE: The first questions I will ask will be to ask the witness to stand down in front of the light box and describe a few things about the autorads that will be placed up, so it will be the beginning, yes.
THE COURT: All right. Are you going to have her place them as part of your presentation?
MR. CLARKE: Yes, although I could have them placed to begin with. I don't have any problem with that.
THE COURT: All right. Why don't we place them first and then we allow Mr. Simpson to take a look.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Have we tested this to make sure we are not going to overload our circuits here?
MR. CLARKE: Yes. At least it didn't yesterday.
THE COURT: All right.
(Brief pause.)
MR. CLARKE: Your Honor, would it also be possible, when the jurors view it, that we actually open up the other gate? We are going to move the chair so that they can walk in one direction. I think it might make for an easier walk by.
THE COURT: All right. Makes sense.
(Brief pause.)
THE COURT: Mr. Fairtlough, how easy is to it actually turn that around 180 degrees?
MR. FAIRTLOUGH: It doesn't go around completely 180. It goes to about an oblique 45.
THE COURT: Turn it on its horizontal access.
MR. FAIRTLOUGH: Good question. I think we would have to try it to see what we could do.
THE COURT: Never mind. Put the film up.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
(Brief pause.)
MR. CLARKE: I think we are ready, your Honor.
THE COURT: All right. This is the first set? All right. Do you want to light them up.
(Brief pause.)
THE COURT: All right.
MR. CLARKE: All right. I think we are ready, your Honor.
THE COURT: All right. Mr. Neufeld, Mr. Simpson, do you want to take a look? Excuse me, counsel. Let's have Mr. Neufeld, Mr. Simpson, Mr. Cochran.
(The parties view the autorads.)
THE COURT: I want the microphones off over there as well.
MR. COCHRAN: Thank you, your Honor.
(The parties continue to view the autorads.)
MR. CLARKE: Your Honor, would the Court like the Defendant also to view now the second set?
THE COURT: I think we can do that at the next break. Let's keep these up and let's get rolling with the jury.
(Brief pause.)
MR. CLARKE: Your Honor, it might be better now, because once we are done, this isn't going to take long, I was going to have the box go out of the courtroom so we don't have to deal with it any more.
THE COURT: Set them up.
(Brief pause.)
THE COURT: Excuse me, counsel, we are going to have to--
(Brief pause.)
(The parties view the autorads.)
MR. NEUFELD: Is there another one?
MR. CLARKE: No.
MR. NEUFELD: Your Honor, the only point I would make is apparently they are able to get all the x-ray films up there at one time, and since the jury has already seen these x-ray films displayed through the elmo, they have also had Dr. Cotton hold them up, that is twice, and they are now going to see them a third time on here, I don't know why we have to have walk-throughs. It seems like at a certain point it is not only repetitive, it is cumulative. That is the only thing I would comment on.
THE COURT: Mr. Clarke?
MR. CLARKE: They don't all fit. There is actually three sets. One of the sets has a single one, so they have to be smashed in where they all can't be seen.
MR. NEUFELD: The single one is simply item 56 which is blank which they already have a copy of already.
THE COURT: All right. I think there is some benefit, though, to seeing them displayed side-by-side, so the objection will be overruled. All right. Let's have the jurors, please.
(Brief pause.)
THE COURT: And Mr. Harmon, do we have that jury door accessible there?
MR. HARMON: Yes, your Honor.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: All right. Dr. Cotton, would you please. Mr. Clarke, where do you anticipate questioning Dr. Cotton at this point?
MR. CLARKE: I will do at the rather large light box that we have in the courtroom.
THE COURT: All right.
Robin Cotton, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: Good morning, Dr. Cotton. You are reminded you are still under oath. Mr. Clarke, you may continue.
MR. CLARKE: Thank you.
THE COURT: And hopefully conclude.
MR. CLARKE: Yes.
THE COURT: Thank you.
DIRECT EXAMINATION (RESUMED) BY Mr. CLARKE
MR. CLARKE: Dr. Cotton, prior to the jury coming in, have you had an opportunity to put various of these x-ray films on this rather large light box that we have in the courtroom?
DR. COTTON: Yes.
MR. CLARKE: And can you describe for us first which of the films are across the top row of the light box, and there appear to be six of them?
THE COURT: Excuse me, Mr. Clarke. Why don't you let counsel pass so that they can be at a vantage point.
(Brief pause.)
THE COURT: All right. Dr. Cotton?
DR. COTTON: The six films across the top are the films that have items 52, 78 and 12 along with the three known samples and the rest of the controls. The film that had the--all the dots all over it with the background isn't up here, since we didn't--weren't really able to make any interpretation from it. And the first film is the cocktail of four probes. The four films following the cocktail are each the individual films that--or the individual probes that are part of that cocktail. And the very last film is the probe that is not part of the cocktail.
MR. CLARKE: Let me stop you for a moment. The top row, does it then have the film that you actually showed on the overhead projector yesterday with regard to the Bundy stain?
DR. COTTON: Yes.
MR. CLARKE: Rockingham foyer stain?
DR. COTTON: Yes.
MR. CLARKE: And the boot stain?
DR. COTTON: Yes, with the exception of the one that has background on it.
MR. CLARKE: Now, on the lower row there appears to be one more film. What is it?
DR. COTTON: That is the film that was also passed out to the jury that has item 56 and the three known individuals.
MR. CLARKE: All right. Then with the Court's permission I'm going to light the light box and then ask the jurors further questions--I'm sorry, ask the witness further questions.
(Brief pause.)
THE COURT: All right. Proceed.
MR. CLARKE: Thank you.
MR. CLARKE: Now, Dr. Cotton, now that you have an opportunity to have all of these x-ray films on the light box at one time, would the fact that they are all together be helpful in explaining anything that yesterday you weren't able to explain as well because these films were not done all at one time or shown at one time?
DR. COTTON: There are two things that are useful in terms of putting them up on the light box. One is to just illustrate to you how they can be superimposed one on the other to identify the band in the cocktail. And then also this is a much more optimal way to view them, not from quite that far away, but in terms of seeing bands, that are not very dark.
MR. CLARKE: All right. With respect to the upper row then, can you point out for us what you are talking about and which of these films show, for instance, this lightness and darkness and so forth that it would be helpful to see while they are up all at one time?
DR. COTTON: The only pattern that we need to pay attention to, in terms of where do we have light bands, is the item 52 pattern, and the bands are most clearly visible on the cocktail, but individually one can go through and pick out bands. The other bands in the sample are pretty much easy to see, perhaps with one or two exceptions on item 52. MS1 has a single band. It is up here where my finger is pointing, (Indicating), for item 52. For MS31 the bands are quite easy to see. For MS43 again they are very light and two of them for g3, they look fairly clear, but still light, and for YNH24 they are clear but still light. So that is what you would be looking at if you were in the laboratory. You would be viewing it on a light box like there on your desk or on the counter or something.
MR. CLARKE: And again, when you are referring to 52, you are referring to the stain from the Bundy walkway?
DR. COTTON: That's right.
MR. CLARKE: Now, there is one more autoradiograph x-ray that is down below and I believe you said that is the particular film that was used in an attempt to type the shoeprint, no. 56?
DR. COTTON: That's right.
MR. CLARKE: And that yielded or produced no results, correct?
DR. COTTON: That's right.
MR. CLARKE: Does that give you then the opportunity to show what a lane looks like that has no DNA in it versus lanes that have more DNA and then lanes with more DNA still when you compare all seven of these films?
DR. COTTON: Well, when you say it has no DNA in it, that is not literally loaded. It just isn't human so there is no human DNA there and it just is an example of the lane that has absolutely no bands in it at all.
MR. CLARKE: All right. While these six films--I'm sorry, seven films are present on the light box, is there anything further that you feel would be appropriate to point out in this comparison process?
DR. COTTON: Just in terms of understanding how these films relate to one another, let me pull one down and give an illustration, which won't be enormously easy to see, but hopefully you will get the idea. Let's use as an example, because it is fairly easy to see, let's look at item no. 12. If we wanted to identify in item no. 12 which of the bands here was produced by which probe, one can--and here is the band I'm going to follow for MS1. Because these all came from the same membrane, they are superimposable, you can lay these one on top of the other, and I've just now moved the top one slightly to the right and I can see that the top band for item no. 12 is the band that is produced by MS1 and they are--can be superimposed well enough so that now you can't really see that you have two films there.
MR. CLARKE: Just for the record, Dr. Cotton, have you just taken the film that is labeled 257-b and placed it over the film labeled 257-a?
DR. COTTON: Yes. And then you would go on and continue that process, and I went go through all six films, but if you go on to the next film, MS31, you can do exactly the same thing, and I can determine from that that the two bands that are in the middle here, the bottom two of this group of three, are the band in the cocktail that are produced by MS31. So once all the films have been completed, that is the procedure that you can use in the laboratory to go through and say, well, if I'm going to take my sizes from this film, which is the easiest thing to do, then I can identify which probes each of those bands comes from by simply superimposing them, making that identification and then noting that in your case materials.
MR. CLARKE: All right. Dr. Cotton, while we have these films on the board, I would like you to assume, and let's start with no. 56, the shoeprint from the Bundy scene, I would like you to assume that with regard to that particular bloodstain, that that was from a bloodstain and that was found on a walkway outside in an area that has leaves and apparent soil nearby.
MR. NEUFELD: Objection, assumes a fact not in evidence.
THE COURT: Overruled.
MR. CLARKE: And that that item was collected during a late morning time period on a given day. I would then like to shift your attention to item no. 52 from the Bundy walkway, and that would be referring you to the films that are exhibit 257-A, B, C and so forth, and I would like you to assume that that was found on a concrete type driveway in an apparent cleaner area than item 56, but collected at approximately the same time that day, same day. And then lastly, I would like you to assume, with regard to item no. 12, that that in fact was blood staining from an indoor area, that is, inside a home on a floor and that that was collected later the same day in the late afternoon, approximately. With those assumptions, do these results that you've obtained, are they consistent with degradation of DNA in relative amounts?
DR. COTTON: With the assumptions that you've just given me, the state of the DNA, the amount of degradation that we see in these three samples that you mentioned, is consistent with the types of environment that you have just described.
MR. CLARKE: Why? Can you explain that?
DR. COTTON: There have been a number of experiments published and also based on our own experience and talking with people from other DNA laboratories, we know that if a sample is exposed to soil or leaves, the likelihood of getting DNA from that sample that is good enough to use for RFLP is very low.
MR. CLARKE: All right. How does the comparison of these three items, how does that play a role in your conclusions?
DR. COTTON: If item 56 was in an area where there were leaves or dirt or soil, the fact that we did not get any human DNA, but we did get DNA that was possibly bacterial DNA, is consistent with the assumption that you asked me to make.
MR. CLARKE: All right. What about then the relative conditions of the DNA with regard then to the Bundy stain, 52, and the Rockingham foyer stain, no. 12?
DR. COTTON: The Bundy stain 52 has less DNA and DNA which is more degraded than the DNA in item no. 12,. And if item no. 12 was collected from a cleaner location than item no. 52, that would be consistent with the condition of the DNA as it is seen on the autorads and as it was seen on the small gel that was done after the DNA extraction.
MR. CLARKE: Incidentally, when, for instance, a human cuts himself or herself and begins to bleed, does one's blood, as it is coming from one's body, have bacteria in it?
DR. COTTON: Not unless one is very ill.
MR. CLARKE: So the bacteria comes from where then?
DR. COTTON: The bacteria in the blood would be then coming from whatever the blood was deposited on.
MR. CLARKE: All right. At this time, your Honor, it would be my request that the jurors have an opportunity to walk by and examine these particular films while they are on the light box.
THE COURT: All right. Let's have the jurors in row no. 1 then, starting with juror no. 1, if could you file by the light box and then re-enter the jury box at the other jury door, please, and take your time.
(The jurors view the autorads.)
THE COURT: Mr. Clarke.
MR. CLARKE: Yes, thank you. Now, Dr. Cotton, if I could ask you to remove the films that are on the light box right now, which are People's exhibits 257, I believe a through--
THE COURT: The complete series of 257.
MR. CLARKE: The complete series except for 257-c.
THE COURT: All right.
MR. CLARKE: As well as exhibit 246.
MR. CLARKE: And I'm going to ask if you would now place on the board the films that constitute People's exhibits 258-a through f regarding the sock.
(Brief pause.)
MR. CLARKE: Now, Dr. Cotton, with regard to People's exhibit 258, those six films, first of recall, with regard to the sock, are there any faint or weak bands that you need to point out?
DR. COTTON: No, there aren't.
MR. CLARKE: All right. Your Honor, again with the permission of the Court may the jury view this set of autoradiographs?
THE COURT: Yes.
(The jury views the autorads.)
MR. NEUFELD: Your Honor, while they are looking at that, may we approach for one second?
THE COURT: Sure.
MR. NEUFELD: Okay.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: The record should reflect that each of the jurors has had and taken the opportunity to view both series of autorads.
MR. CLARKE: Your Honor. May we remove the large light box?
THE COURT: Yes.
(Brief pause.)
THE COURT: Mr. Clarke.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, in the course of your testing, you described earlier the fact that you tested a number of samples that you received using the PCR process?
DR. COTTON: That's right.
MR. CLARKE: How did you decide whether--well, let me rephrase. How did you decide whether to type a sample using PCR or RFLP or both?
DR. COTTON: If the DNA was in sufficiently good condition for both, we did both. If it wasn't in sufficiently good condition to do RFLP, we then did PCR.
MR. CLARKE: With regard to the samples that you identified on those boards that had a number of different photographs of envelopes and so forth, did you in fact test those samples either by RFLP or PCR or both?
DR. COTTON: Yes.
MR. CLARKE: And did you obtain results from a number of those samples?
DR. COTTON: Yes, we did.
MR. CLARKE: Your Honor, at this time I would ask to be marked as People's next in order what I believe could be described as the Bundy results board.
THE COURT: All right. 259.
(Peo's 259 for id = posterboard)
MR. CLARKE: And I'm going to also ask the Court's permission to be able to place in the location under the projector screen with a second tripod the earlier board, exhibit 165, that is the photo board for the Bundy crime scene.
THE COURT: Refresh my recollection as to 165. Do we have victims depicted?
MS. CLARK: I don't think so. I don't think so.
MR. CLARKE: No, your Honor.
THE COURT: All right.
(Brief pause.)
THE COURT: All right. Where is Mr. Neufeld?
THE COURT: I was just making sure you were positioning yourself so you could see.
MR. CLARKE: Your Honor, incidentally, the Defense have copies of these boards they were given with the material shown on them.
THE COURT: All right.
(Brief pause.)
MR. SCHECK: Your Honor, could we approach just on arrangements?
THE COURT: On the arrangements?
MR. SCHECK: In other words, with the new configuration of the courtroom, I have a suggestion about the boards. Oh, I see, it is that one. It is impossible.
THE COURT: And we may have to move it back to give Dr. Cotton some ingress-egress there.
(Brief pause.)
THE COURT: All right. Let's proceed.
THE BAILIFF: Excuse me, your Honor. You have a couple jurors that can't see.
THE COURT: All right. Mr. Clarke, the difficulty is the height of the Bundy board, 165.
MR. CLARKE: All right. Then perhaps as I refer to individual items we can raise it or point out as necessary.
THE COURT: All right.
MR. CLARKE: All right. Dr. Cotton, with respect to various items of evidence, and if I may, I will direct you to specific item numbers and a brief description of them, do you have before you the results that your laboratory obtained, whether it is PCR results or RFLP results?
DR. COTTON: Yes, I do.
MR. CLARKE: All right. Initially were you asked and did you test an item no. 47 described as "first drop by the victims at Bundy"?
DR. COTTON: Yes, we did.
MR. CLARKE: What type of testing did you use with respect to that item?
DR. COTTON: PCR testing.
MR. CLARKE: At how many markers, and we will try to do this as to this first marker and perhaps shorten it with the remaining markers?
DR. COTTON: Six.
MR. CLARKE: And would one of those markers be DQ-Alpha?
DR. COTTON: Yes.
MR. CLARKE: And the other five markers would be what?
DR. COTTON: They are the five markers that compile the polymarker.
MR. CLARKE: And did you obtain results from that testing?
DR. COTTON: Yes, we did.
MR. CLARKE: All right. With respect to those results can you describe what the DQ-Alpha result was?
DR. COTTON: The DQ-Alpha result was a 1.1, 1.2.
MR. CLARKE: Now, I'm going to ask you and perhaps--have you had a chance to look at these results boards before, Dr. Cotton?
DR. COTTON: Yes, I have.
MR. CLARKE: And have you had an opportunity to look at not only the various items of evidence that are listed on the board, but also the known types of the three people in this case, Mr. Simpson, Nicole Brown and Ronald Goldman, that are listed at the very top of the diagram?
DR. COTTON: Yes, I have.
MR. CLARKE: With regard to the known types, that is the DQ-Alpha types, are the types shown on this board, People's exhibit 259, with respect to those three known persons, accurate?
DR. COTTON: Yes, they were.
MR. CLARKE: Now, with regard to again item no. 47, this first drop by the victims at Bundy, did you also obtain polymarker results at those five additional markers?
DR. COTTON: Yes, we did.
MR. CLARKE: As a result of those tests, that is the results you obtained, were you able to include or exclude any of the three parties as far as being contributors of that sample, possible contributors?
DR. COTTON: Yes, we were.
MR. CLARKE: All right. Could you tell us who was excluded, if anyone, and who was included?
DR. COTTON: Nicole Brown and Ronald Goldman are excluded and Mr. Simpson is a possible contributor.
MR. CLARKE: All right. With the Court's permission I'm going to remove the current cover that shows those results as far as this particular item.
THE COURT: Yes. All right. Mr. Fairtlough, could we raise this board up?
MR. FAIRTLOUGH: Yes, your Honor.
MS. CLARK: Your Honor, can we approach, please? We have a logistical problem here.
THE COURT: Well, if it is a logistical problem, I can assume you can settle it yourselves. Proceed.
(Brief pause.)
THE COURT: Proceed.
MR. CLARKE: Thank you.
MR. CLARKE: Let me see if I can get on my tip toes. I don't know if you can see, Dr. Cotton, but have I --
DR. COTTON: I can't see it.
MR. CLARKE: Okay. With regard to what is beneath that cover that I just removed, and this is item no. 47, your laboratory, it states "DQ-Alpha 1.1, 1.2" and then it says "polymarker included"?
DR. COTTON: That would be correct.
MR. CLARKE: You previously or just a few moments ago testified that these results, including all six of these genetic markers, exclude Mr. Goldman and Nicole Brown; is that right?
DR. COTTON: That's right.
MR. CLARKE: And is Mr. Simpson then included as a possible donor of that blood stain?
DR. COTTON: Yes, he is.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: When you use the term "included," again does that mean he is or is not a possible source of that DNA?
DR. COTTON: When you say that he is included, it means that he is a possible source.
MR. CLARKE: Now, turning your attention to the next item on the board, which is labeled "no. 48 Bundy walk," did you also test that sample using PCR?
DR. COTTON: I think I have to go to a different report, so you need to give me a second.
MR. CLARKE: All right.
(Brief pause.)
MR. CLARKE: Your Honor, while the witness is looking, I'm also going to remove the second magnetic portion of the board that is under the column "not excluded" relating to item no. 47, the first drop.
THE COURT: Proceed.
MR. CLARKE: It is a good thing these are getting lower, too, as we go.
(Brief pause.)
DR. COTTON: Yes, we did have that sample.
MR. CLARKE: And did you test that sample for the same six genetic markers using PCR?
DR. COTTON: Yes, we did.
MR. CLARKE: With what result?
DR. COTTON: Did you want me to read the type or just--
MR. CLARKE: Actually, were your results the same or different than 47, the first drop by the victims?
DR. COTTON: They were the same.
MR. CLARKE: Does that mean then that the types were DQ-Alpha 1.1, 1.2 and as to the polymarker an individual was included?
DR. COTTON: That's right.
MR. CLARKE: Do those results include or exclude Mr. Goldman and Nicole Brown?
DR. COTTON: They exclude Mr. Goldman and Nicole Brown.
MR. CLARKE: What about Mr. Simpson?
DR. COTTON: They do not exclude him.
MR. CLARKE: Your Honor, your Honor, with the Court's permission, I'm going to remove again both magnetic markers as to item 48, the Bundy walkway.
THE COURT: You may.
MR. CLARKE: Drawing your attention, Dr. Cotton, to no. 49, another Bundy walkway stain, did you type that particular evidence using these same six genetic markers using PCR?
DR. COTTON: Yes, we did.
MR. CLARKE: With what results?
DR. COTTON: Mr. Simpson is included as a possible donor and Nicole Brown and Ronald Goldman are excluded as possible donors.
MR. CLARKE: Now, does that include or were your results as to no. 49 on the Bundy walkway the same as for the first two items, 47 and 48, the other Bundy walkway stains?
DR. COTTON: Yes, they are.
MR. CLARKE: Your Honor, again with the Court's permission I'm going to reveal the two appropriate covers.
THE COURT: Yes.
(Brief pause.)
THE COURT: Miss Martinez, is it possible we could move the cart there just slightly?
(Brief pause.)
THE COURT: Thank you.
MR. CLARKE: Now, referring you to what's marked no. 50, bloodstains from the Bundy walkway, did you also test that sample?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you use the same or different genetic markers using PCR typing?
DR. COTTON: The same.
MR. CLARKE: And with regard to the results, can you tell us what they were?
DR. COTTON: With regard to item no. 50, Nicole Brown and Ronald Goldman are excluded and Mr. Simpson is included as a possible donor.
MR. CLARKE: All right. Your Honor, with regard again to those results, I'm going to, with the Court's permission, reveal the appropriate markers.
THE COURT: Proceed.
(Brief pause.)
MR. CLARKE: Turning your attention now to no. 52, which is labeled "the Bundy walkway," first of all, you have already described RFLP results with respect to that Bundy stain; is that right?
DR. COTTON: That's right.
MR. CLARKE: And I believe you described that there was a match between Mr. Simpson and this stain at a number of genetic markers; is that right?
DR. COTTON: That's correct.
MR. CLARKE: Or probes as you have used the term?
DR. COTTON: That's right.
MR. CLARKE: How many probes did Mr. Simpson match the 52 Bundy stain at?
DR. COTTON: Five.
MR. CLARKE: Your Honor, with the Court's permission, there is a column with "RFLP results" and I'm going to ask to be able to reveal that at this time also.
THE COURT: Proceed.
(Brief pause.)
MR. CLARKE: In other words, Dr. Cotton, was there a five-probe match between Mr. Simpson and no. 52, the Bundy stain, using your RFLP technique?
DR. COTTON: Yes, there was.
MR. CLARKE: Did you also test that sample using PCR?
DR. COTTON: Yes, we did.
MR. CLARKE: With what results?
DR. COTTON: You will have to wait just a second because I thought I had turned to the correct page and I haven't.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
DR. COTTON: Oh, yes, I have. Okay.
MR. CLARKE: First of all, was that the same stain, and I'm referring to item no. 52, that you discussed as far as RFLP results yesterday?
DR. COTTON: Yes, the same stain.
MR. CLARKE: With what results as far as PCR is concerned?
DR. COTTON: The PCR results exclude Mr. Goldman and Nicole Brown and they include Mr. Simpson.
MR. CLARKE: All right. Again, your Honor, with the Court's permission, I would like to reveal the remaining two magnetic covers.
THE COURT: Yes.
(Brief pause.)
MR. CLARKE: Now, I would like to turn your attention to the shoeprint, item no. 56, which you've testified I'm sorry--testified about already both yesterday and today as far as RFLP typing.
DR. COTTON: Yes.
MR. CLARKE: And you obtained no RFLP results as to that shoeprint stain; is that right?
DR. COTTON: That's correct.
MR. CLARKE: What about PCR? Did you obtain any results as to that item?
DR. COTTON: Yes, we did.
MR. CLARKE: What were they?
DR. COTTON: We obtained polymarker results and we did get some signal on the DQ-Alpha results, but there was no C dot.
MR. CLARKE: When you say no C dot, that is one of the controls you described?
DR. COTTON: That is one of the controls, and because we didn't see a C dot, we noted the types that we could see, but that doesn't mean that there aren't other types that we couldn't see.
MR. CLARKE: Was there anything about the--well, what types did you see as far as DQ-Alpha was concerned?
MR. NEUFELD: Objection, your Honor. May we approach?
THE COURT: Sustained. I'm going to sustain the objection.
MR. CLARKE: Was there anything about the results using DQ-Alpha that excluded Mr. Simpson?
DR. COTTON: Using DQ-Alpha alone, given that we didn't see a C dot, we can't exclude him.
MR. CLARKE: What about the polymarker results?
DR. COTTON: The polymarker results had a--the control turned out okay and, umm, those results are--hang on one second.
(Brief pause.)
DR. COTTON: Those results are not consistent with Mr. Simpson.
MR. CLARKE: With regard to the other two parties in this case, were those results consistent or inconsistent with them?
DR. COTTON: They are consistent with Nicole Brown and inconsistent with Ronald Goldman.
MR. CLARKE: Let me stop you just for a moment or go back, if I can. When you said there was no C dot on this DQ-Alpha marker, what does that mean?
DR. COTTON: The C dot is designed to say that you have enough amplified product to reliably interpret your results. If the--if you have no C dot, then what that means is that you may have so little amplified product that you could have a person, for example, that had two alleles but you might only see one of them, so your typing would--the type that you see is one of the types that is there, but it may not be all of the types that are there.
MR. CLARKE: Is that one of the built-in controls in the test that you described--
DR. COTTON: Yes, it is.
MR. CLARKE: --previously. With regard to this result from the shoeprint then, and I'm referring then to the polymarker results, was a particular individual included?
DR. COTTON: Yes.
MR. CLARKE: Who was that?
DR. COTTON: Nicole Brown.
MR. CLARKE: All right. Your Honor, with regard to the shoeprint, I would ask the Court for permission to remove those covers.
THE COURT: Yes.
(Brief pause.)
MR. NEUFELD: One second, your Honor.
(Brief pause.)
MR. NEUFELD: Your Honor, I have an objection. May we approach?
THE COURT: No. It has already been taken care of. The objection is overruled.
MR. CLARKE: Turning your attention, Dr. Cotton, to item no. 78, the Ronald Goldman boot drop, you have already described RFLP results over the last couple days, correct?
DR. COTTON: That's right.
MR. CLARKE: How many probes were actually used in this test of that boot drop?
DR. COTTON: Five.
MR. CLARKE: And that is the RFLP probes?
DR. COTTON: Yes.
MR. CLARKE: All right. Your Honor, with the Court's permission I'm going to ask to remove the cover as far as RFLP testing is concerned.
THE COURT: Yes.
(Brief pause.)
MR. CLARKE: Did you also conduct PCR testing with regard to no. 78, the boot drop?
DR. COTTON: Yes, we did.
MR. CLARKE: And did you test that at these six genetic markers, including DQ-Alpha?
DR. COTTON: Yes, we did.
MR. CLARKE: With what results?
DR. COTTON: The results indicate that there are a mixture of two people in the sample.
MR. CLARKE: Far as those results, can you include or exclude any of the three persons; Mr. Simpson, Nicole Brown or Ronald Goldman?
DR. COTTON: Mr. Simpson is excluded and Nicole Brown and Ronald Goldman cannot be excluded.
MR. CLARKE: All right. Your Honor, with this item I would ask for permission to remove the two magnetic covers.
THE COURT: Yes.
(Brief pause.)
THE COURT: Excuse me. Mr. Fairtlough, before you bring up something that has got a victim's body in it, would you warn me, please.
MS. CLARK: Your Honor, could you cut the feed for this?
THE COURT: I have, but--
MR. CLARKE: Now, as far as the polymarker results well, let me step--go one step backwards. The DQ-Alpha results on the boot drop, they show what appear to be three types, plus the possibility of a fourth?
DR. COTTON: That's right.
MR. CLARKE: Is that what leads you to the conclusion that that is a mixture?
DR. COTTON: That's right.
MR. CLARKE: Did the polymarker results also show a mixture?
DR. COTTON: The polymarker results don't have any locus that has three types in it, so it is not clear from the polymarker results alone that there is a mixture, and the differences in the intensities of the blue dots are not really quite good enough to indicate definitely that there is or is not, so the determination that there is a mixture relies on the DQ-Alpha results.
MR. CLARKE: Now, as far as those DQ-Alpha results, there are three types listed, 1.1, 1.3 and 4. Did you obtain those types?
DR. COTTON: Yes, we did.
MR. CLARKE: And then you also note, do you not, "possible 1.2"?
DR. COTTON: That's right.
MR. CLARKE: Why is it a possible 1.2?
DR. COTTON: When you have more than one individual in the DQ-Alpha test, the way the strips are designed is that you wouldn't be able to definitively read the 1.2 if you have a certain combination of alleles, and you have more than one person. If you only have a single person, there is no problem, so when there is clearly a mixture, which there is here, and you can't definitively say whether the 1.2 is there or not, then it is generally reported as you have the alleles that you can define and you have a possible 1.2 and you can't say that it is or is not definitively there.
MR. CLARKE: Now, turning your attention to what are listed as items no. 84-a and 84-b, the left and right-hand fingernail clippings and scrapings of Nicole Brown, did you type those items using PCR?
DR. COTTON: Yes, we did, but you will have to give me a second to locate the report.
MR. CLARKE: All right. If you would.
(Brief pause.)
MR. NEUFELD: Your Honor, I would object to foundation on those fingernail scrapings that come--I don't think they were sent directly from--
MS. CLARK: Speaking objection.
MR. CLARKE: Excuse me, your Honor.
THE COURT: Mr. Clarke.
MR. CLARKE: I believe that was a speaking objection.
THE COURT: It was.
MR. NEUFELD: May we approach, your Honor?
THE COURT: Yes. With the court reporter, please.
MR. NEUFELD: Thank you.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar.
MR. NEUFELD: At least two of us are.
THE COURT: Mr. Clarke.
MR. CLARKE: Yes.
MR. NEUFELD: My--
THE COURT: Mr. Neufeld, it is your objection.
MR. NEUFELD: Yeah. Correct me if I am mistaken, but aren't the fingernail scrapings, were they sent directly to Cellmark by LAPD or were extraction tubes at least as to some of the fingernail scrapings and fingernails sent from DOJ to Cellmark?
MR. CLARKE: The answer is the latter and Mr. Sims, the next witness, is going to establish that foundation.
THE COURT: All right.
MR. NEUFELD: Objection. My objection is to foundation, that clearly, at least through this witness, they cannot establish the necessary foundation or chain of custody and there has not even been any chain of custody with respect to this from Mr. Matheson. And I would object to any results coming in for those items which no foundation has been established.
THE COURT: I will overrule the objection subject to a motion to strike.
MR. COCHRAN: One second, your Honor.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. NEUFELD: The other matter which I wanted to bring to the Court's attention was when the witness testified that there was no control dot on the DQ-Alpha typing, and therefore it was inconclusive, she wouldn't call it, give her own protocol, and you sustained my objection to that to prevent her from testifying to it, what he put up on the board when he pulled away the card --
THE COURT: Mr. Neufeld, here is the problem. You have had extensive opportunity to look at that board previously and we had a long discussion about it. You've had your opportunity to object to it. To interpose an objection now is a little late, but on this part I think it is no harm, no foul, because the board does say "control dots" and it does indicate--does factually relate what occurred there. And the witness' testimony was that it was an inconclusive result, so the objection is overruled.
MR. NEUFELD: But do the boards say "o control" or "no control"?
THE COURT: Zero.
MR. CLARKE: Zero. While we are here, it is very crowded over there, but I would normally agree that is fair game, but they have a copy of that board. That is why I don't think it is necessary that there be so many attorneys over there. If there was no copy, I don't agree.
MR. NEUFELD: I don't think there is any reason to have a board of every Bundy stain. They can move this entire board over there, your Honor, and everybody can see it.
THE COURT: Counsel, when you present your part of the case, you get to put them any where you want. All right?
MR. NEUFELD: All right.
THE COURT: Let's proceed.
MR. NEUFELD: All right.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Mr. Clarke, would you continue.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, with regard to 84-a, and let's start there, Nicole Brown Simpson's left nail clippings--I'm sorry, left nail--
THE COURT: Start again.
MR. CLARKE: Let me try again, your Honor.
THE COURT: Please.
MR. CLARKE: With regard to no. 84-a the left nail clippings and scrapings, did you test that particular item?
DR. COTTON: Yes, we did.
MR. CLARKE: And did you observe that or was it tested using PCR?
DR. COTTON: Yes, it was.
MR. CLARKE: With what results?
DR. COTTON: We are now on 84-a?
MR. CLARKE: Yes.
DR. COTTON: Okay. The results from the PCR testing on 84-a are consistent with Nicole Brown Simpson and exclude Ronald Goldman and Mr. Simpson.
MR. CLARKE: All right. And that was at again six genetic markers?
DR. COTTON: That's right.
MR. CLARKE: All right. Your Honor, with the Court's permission as to that item, the left nail clippings and scrapings, I'm going to ask for permission to remove the covers.
THE COURT: Yes.
(Brief pause.)
MR. CLARKE: Turning your attention now to what is marked 84-a, the right nail clippings and scrapings from Nicole Brown, did you also perform testing on that item?
DR. COTTON: Yes, we did.
MR. CLARKE: With what result?
DR. COTTON: They are consistent with Nicole Brown and they exclude Mr. Goldman and Mr. Simpson.
MR. CLARKE: At the same six different markers?
DR. COTTON: That's right.
MR. CLARKE: May I ask for the same permission, your Honor?
THE COURT: Proceed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Does that mean, Dr. Cotton, that you obtained the exact same results for 84-a as you did for 84-b, the clipping?
DR. COTTON: It does.
MR. CLARKE: And then lastly, with regard to this item, 84-b, referring your attention to the right scrapings, did you also test those using PCR?
DR. COTTON: Yes, we did.
MR. CLARKE: With what results?
DR. COTTON: They are consistent with Nicole Brown and Mr. Simpson and Mr. Goldman are excluded.
MR. CLARKE: And were these the exact same results as in the earlier two nail clippings and scrapings results?
DR. COTTON: They are.
MR. CLARKE: Your Honor, may I have the same permission?
THE COURT: Proceed.
(Brief pause.)
MR. CLARKE: All right. Your Honor, I'm going to ask that this board now be taken down.
THE COURT: All right. And how about 165 as well?
MR. CLARKE: Yes.
THE COURT: All right.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Mr. Clarke.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, I believe it was day before yesterday that you described, with regard to your controls--may I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: You described a couple of days ago that with regard to all the controls and all of the tests that you did, that they all worked properly, with the exception of, and I think you said there were weak reactions to one sample; is that right?
DR. COTTON: That's right.
MR. CLARKE: Could you describe that more for the jury, please.
DR. COTTON: Yes. If you will just give me a minute.
MR. CLARKE: Sure.
(Brief pause.)
MR. CLARKE: Your Honor, I'm going to ask that one of the previous drawings, exhibit 254, be placed up, so that the witness can refer to it for a few questions.
THE COURT: All right.
(Brief pause.)
THE COURT: I think we will need to move that and exchange places with the large easel.
(Brief pause.)
THE COURT: All right. Dr. Cotton, do you have those results?
DR. COTTON: No. I--I need a couple minutes.
(Brief pause.)
THE COURT: Mr. Clarke, would you have that sheet in your notes?
(Brief pause.)
MR. CLARKE: I believe I do.
THE COURT: All right. Why don't you show that to Dr. Cotton.
(Brief pause.)
MR. CLARKE: Do you have that now, Dr. Cotton?
DR. COTTON: I do.
MR. CLARKE: All right. If you would, would you describe what you meant by those faint reactions that you described a couple days ago.
DR. COTTON: With regard to sample--the sample which was item 7, we had--we had done this PCR reaction and gotten a faint product, so we attempted to concentrate the sample and try it again. After that concentration step we picked up two faint dots in the polymarker reagent blank.
MR. CLARKE: Now, we have placed or had placed out here a drawing that you did entitled "PCR controls," which is labeled exhibit 254. I'm going to ask you if you would step down from the witness stand and use that drawing to describe what you have just testified to.
DR. COTTON: (Witness complies.) this is the listing of the various controls that one normally does when you do a PCR reaction. For the sample that I'm referring to, the positive control was fine and then we talked about two kind of negative controls. One is started at the very beginning of the test and carried through just as if it was a sample, and that is the reagent blank. The second is added at the time the reaction is set up and that is the negative control. In this case, with regard to the sample, it is the reagent blank control that showed two faint dots and this control was carried through and amplified at the same time a number of samples were amplified. And on its first amplification it was fine, it didn't show faint dots. Only after the manipulations that it went through along with item no. 7 that needed to be concentrated so the reagent blank was concentrated as well, at that point when it was reamplified and reanalyzed, then it showed a faint D at the D7/S8 location and a faint C at the GC location. It didn't show any other dots, it didn't give a complete type, it didn't have a C dot or an s dot, but those faint dots were noted when the analyst and a second analyst read the results and they are recorded in the case work notes.
MR. CLARKE: What is the significance of seeing those two dots?
DR. COTTON: Well, there is two ways you could interpret that. One possibility is that there was a very, very low amount of contamination in the reagent blank to begin with, so low that it it wouldn't be amplified. That is, there was a tiny amount of human DNA there, but not enough to be amplified, not enough to see anything, and then in the process of concentrating that sample, you concentrated it just enough, that is, you reduced the volume, but you didn't reduce the amount of DNA, that now you are seeing these two faint dots and they are barely detectable. The other scenario that would account for that is that the reagent blank was clean up until the point that the sample was concentrated and the manipulation of putting it through the micro--it is a little tiny thing, but putting it through this concentration step, somehow in doing that we picked up a very small amount of contaminating DNA and that is what we saw and there is no way to know which of those two alternatives accounts for obtaining those two faint dots in the reagent blank, but those are the two possibilities.
MR. CLARKE: How many samples were involved in this testing that had that faint reaction in the reagent blank?
DR. COTTON: Just one.
MR. CLARKE: And I believe you said that was no. 7?
DR. COTTON: That is no. 7. Now, let me clarify that. That reagent blank was started with a series of samples and I don't remember exactly, without going back to the notes, which samples it was started with, but it was several. The most--most of the samples typed just fine, as did the reagent blank produce no type on the first amplification. So the reagent blank for those samples is--is okay. It is only--it only affects your--or you only--we only looked at it and tried to take it into account with respect to item no. 7 because that was the item that was then concentrated and then typed and actually then it was typed--the pre-concentration was typed also and all those results were consistent.
MR. CLARKE: Item no. 7 was a Rockingham driveway stain?
DR. COTTON: I believe so.
MR. CLARKE: Now, as far as these controls--and first of all, did you ultimately report a result for no. 7, the Rockingham driveway stain?
DR. COTTON: We did report a result.
MR. CLARKE: What is that okay to do under these circumstances?
DR. COTTON: The sample was amplified twice, before it was concentrated and after it was concentrated. In both instances it gave exactly the same results, and the reagent blank dots that I described, whatever they were, the faint b and the faint c, were so light that we felt this would--could not possibly have compromised the types that we saw in that sample and therefore we went ahead and reported it.
MR. CLARKE: Now, on 254, you have listed at the bottom "reagent blank control." is that what we are talking about?
DR. COTTON: That is what we are talking about.
MR. CLARKE: Okay. Is that different from what you have above, the negative control?
DR. COTTON: Yes, it is.
MR. CLARKE: How are those two different?
DR. COTTON: They are started at different times.
MR. CLARKE: As far as this particular evidence was involved, did you get any reactions or see any contamination from the negative control?
DR. COTTON: No, we didn't.
MR. CLARKE: With regard to your testing, is there any other evidence of contamination whatsoever in any of your tests in this case?
DR. COTTON: No.
MR. CLARKE: All right. If you could, could you have a seat back on the witness stand, Dr. Cotton. Thank you.
DR. COTTON: (Witness complies.)
MR. CLARKE: Dr. Cotton, you also described the fact, when you were going through one of the boards, and I believe it was yesterday, as far as some of the evidence items that you received, that you received some unstained or substrate controls as well?
DR. COTTON: That's right.
MR. CLARKE: As far as this--
THE COURT: Excuse me. Would you pull the microphone closer to you, please.
DR. COTTON: Oh.
THE COURT: Thank you.
MR. CLARKE: As far as the Bundy crime scene, did you receive unstained controls for one of the Bundy walkway stains, no. 49, as well as the shoeprint, 56?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you test those for any DNA in them?
DR. COTTON: Yes, we did.
MR. CLARKE: With what results?
DR. COTTON: No results. We didn't get any types, any dots.
MR. CLARKE: As a DNA--
DR. COTTON: Nothing.
MR. CLARKE: I'm sorry?
DR. COTTON: We got nothing.
MR. CLARKE: As a DNA analyst, is that important in any way because it was a substrate control?
DR. COTTON: Well, it tells you that the immediate--it--I don't know--I don't have personal knowledge of where that substrate control was taken, but generally it would be taken close to the stain, so it tells you that the surrounding or the area from which the substrate control, which was--if I can assume it was close to the stain, didn't have DNA in it, so that the DNA that you get from the sample is DNA from the stain.
MR. CLARKE: Now, I would like to shift your attention back to the fingernail scrapings and clippings that were no. 84, that is from Nicole Brown.
DR. COTTON: Yes.
MR. CLARKE: The items that you actually received for DNA typing came from whom?
DR. COTTON: They came from the Department of Justice.
MR. CLARKE: Is that the California Department of Justice?
DR. COTTON: Yes.
THE COURT: Excuse me. Dr. Cotton, would you allow Mr. Clarke to finish asking the question before you start to answer.
DR. COTTON: Yes, sir.
THE COURT: Thank you.
MR. CLARKE: What form did they come to you in, and I'm talking about just the fingernail scrapings and clippings?
DR. COTTON: They were already extracted DNA.
MR. CLARKE: Meaning they came to you in what form? Can you just describe that?
DR. COTTON: They came in a--it was a very small volume of liquid in a very small tube.
MR. CLARKE: Now, I would ask, your Honor, that be marked as the People's next exhibit, which I believe is 260, what can be described as the Bronco results board.
THE COURT: 260.
(Peo's 260 for id = posterboard)
THE COURT: And Mr. Clarke, we are going to break at 10:30.
MR. CLARKE: Very good.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Cotton, incidentally, with regard to what has been described as the Bronco automobile, did you test one item of evidence from that particular location?
DR. COTTON: Yes, we did.
MR. CLARKE: And can you describe what that piece of evidence was?
DR. COTTON: Can you give me an item number?
MR. CLARKE: Sure. If I can direct your attention to what has been described as item no. 29, the Los Angeles Police Department item number and described as the steering wheel.
DR. COTTON: Okay. You have to give me a minute now to find that report.
MR. CLARKE: All right.
(Brief pause.)
THE COURT: Which item is this on the board?
MR. CLARKE: Item no. 29.
THE COURT: All right. We are fine.
DR. COTTON: I'm having a little trouble going back and forth between our numbers and the item numbers.
(Brief pause.)
THE COURT: Take your time. We don't want to confuse these.
DR. COTTON: Okay.
(Brief pause.)
THE COURT: Mr. Clarke, do you have a date on this or anything that can assist Dr. Cotton?
(Brief pause.)
DR. COTTON: I--
THE COURT: You found it?
DR. COTTON: I have it, yes.
THE COURT: All right. Mr. Clarke.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Dr. Cotton, did you in fact test that item, no. 29?
DR. COTTON: Yes, we did.
MR. CLARKE: What did you test it by, what method?
DR. COTTON: Using the DQ-Alpha and the polymarker test.
MR. CLARKE: Were these the six genetic markers again?
DR. COTTON: Yes.
MR. CLARKE: What results did you obtain?
DR. COTTON: We obtained results that indicated there was a mixture in that item.
MR. CLARKE: And with regard to that mixture--I'm sorry, let's start with the DQ-Alpha results. What were they?
DR. COTTON: A 1.1, a 1.2 and a 4.
MR. CLARKE: Did you also test that particular item using these five polymarkers?
DR. COTTON: Yes, we did.
MR. CLARKE: First of all, did the results of that test indicate the possibility of a mixture?
DR. COTTON: The results of the polymarker also indicate that there is a mixture.
MR. CLARKE: All right. Your Honor, with the Court's permission I'm going to remove the first magnetic cover as to item 29.
THE COURT: Proceed.
(Brief pause.)
MR. CLARKE: Dr. Cotton, with regard to that series of results or what is written that I have just revealed with the magnet, does that accurately describe the results you obtained?
DR. COTTON: Yes, it does.
MR. CLARKE: As far as the three individuals, that is, Mr. Simpson, Nicole Brown and Ronald Goldman are concerned, can you make any conclusion about who was included or excluded from that result?
DR. COTTON: Mr. Simpson is included. Mr. Goldman is not included and Nicole Brown could be included.
MR. CLARKE: All right. So far as individuals who are not excluded, that would be whom?
DR. COTTON: Ronald Goldman.
MR. CLARKE: I'm sorry, not excluded?
DR. COTTON: Oh, sorry. That would be Mr. Simpson and Nicole Brown.
MR. CLARKE: All right. Your Honor, with the Court's permission I'm going to reveal that marker.
(Brief pause.)
MR. CLARKE: And in fact, Dr. Cotton, should there be an additional name up there from these three parties, since there is one name at the moment?
DR. COTTON: Yes.
MR. CLARKE: And who would that be?
DR. COTTON: Nicole Brown.
MR. CLARKE: Your Honor, with the Court's permission I'm going to simply write in that name, if that is acceptable, or ask the witness to.
THE COURT: No. Why don't you proceed.
MR. CLARKE: Proceed with the writing in?
THE COURT: Yes.
(Brief pause.)
MR. CLARKE: For the record, I have written in the name "Brown" beneath "Orenthal Simpson" on this particular exhibit.
THE COURT: All right. Proceed.
MR. CLARKE: Is this the only item you tested, as far as you know, from the Bronco automobile?
DR. COTTON: Yes.
MR. CLARKE: May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, as far as this particular item, did you also receive an unstained control for item no. 29?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you test that using this PCR typing process?
DR. COTTON: Yes, we did.
MR. CLARKE: With what result?
DR. COTTON: There were no results for that unstained control.
MR. CLARKE: Your Honor, at this time I would like to move to another board which I believe would be People's exhibit 261.
THE COURT: All right. Before we do that, why don't we take our break.
MR. CLARKE: That's fine.
THE COURT: All right. Ladies and gentlemen, we are going to take a recess for the morning. This might be slightly longer than our normal recesses. 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 discuss the matter with anybody else, don't conduct any deliberations until the matter has been submitted to you. And we will stand in recess. All right. Thank you.
MR. NEUFELD: May we have a side bar very briefly?
(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 the parties are again present. All right. Just so the record is clear, counsel, Mr. Neufeld has asked for some additional time to review the report from Dr. Weir; is that correct, Bruce Weir?
MR. NEUFELD: That's correct, your Honor.
THE COURT: All right. And our agreement is that if the Prosecution concludes, that they will be allowed to reopen and it will be made clear to the jury that they are being allowed to reopen and the reason is that the Defense needed some additional time to consider the report.
MR. NEUFELD: In fact, but given the Court's earlier ruling, they are compelled to reopen, actually, so that they can express those frequencies.
THE COURT: Depends on which spin you want to put on it.
MR. CLARKE: I never felt compelled to reopen before.
THE COURT: All right.
MR. CLARKE: Two items I wanted to bring up to the Court. One we have already mentioned. I will deal with that second. First, it is our intention to bring out from Dr. Cotton population frequency data. That includes not only those markers tested in her laboratory, PCR only that I'm referring to, DQ-Alpha and polymarker, but also to incorporate D1S80 results obtained by the Department of Justice. And the reason for that is to avoid having to bring witnesses back and forth in this somewhat combined nature of testing in this case and I wanted to bring that up to the Court before I laid a foundation of her knowledge of that marker and so forth.
THE COURT: DS180?
MR. CLARKE: D1S80 and the idea is to avoid calling Dr. Cotton again as a witness following the Department of Justice's results. I think it is perfectly appropriate to do so. We know the evidence is going to show these results, so I don't think there is any problem of foundation; it is more order.
THE COURT: Mr. Neufeld, any comment?
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Well, your Honor, there is no--there has not been any results yet about D1S80 testing. There has been no foundation for the D1S80 test results yet and the normal foundation. There is no reason why they can't have Gary Sims, once he puts in his data, then looks at the Cellmark numbers and compound it or multiplies it with his own data--one moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And if it is not going to be Gary Sims, it is going to be Renee Montgomery also they put on their witness list as someone who will be testifying from DOJ. I mean, there is really no reason to do it in this instance and it seems like if you are really going to balance the interests here, to have them put in numbers on something the jury hasn't even heard about yet is highly improper. And Robin Cotton doesn't even have to come back. They can have them come back.
THE COURT: Mildly unusual.
MR. CLARKE: I don't think it is unusual, but it is because of the order of these witnesses, but--
THE COURT: But we are talking about here tests that haven't even been presented to the jury, tests that the jury only vaguely expects, since they see DOJ and they have seen the board and they know that there will be some testing from DOJ. But to include testing results that have not even been presented, even in a basic form yet, to the jury, without even understanding what the test is, that is--and given the significance and breadth of the testing, I am having a problem with that, Mr. Clarke.
MR. CLARKE: Well, if Mr. Neufeld is going to stipulate as to Mr. Sims' ability to make these calculations, then that may be a different matter and we may agree to that. He has just said, which is totally contrary, to what, for instance, his attack was at least by way of an objection to Dr. Cotton's qualifications. Now, I think it is our right to be able to present this from the witness or witnesses we choose. Mr. Sims will provide calculations that involve testing that doesn't involve the same item also tested by Cellmark, so I think it is our right to be able to present that through that witness and I think under these circumstances it is clear this evidence is coming in. The objection to the admissibility, for instance, of D1S80 results, was waived, so we know this evidence is coming in, and I think just simply as a matter of the Court's discretion it can allow this witness to describe that, in other words, in terms of frequency data, because we know it is going to be admissible as a result of the Defendant's waiver of his initial motion attacking this evidence.
MR. NEUFELD: Even with the initial motion, your Honor, there is still the normal foundation requirements and there has been absolutely no witness testifying to any of the testing methods, that they were the same generally accepted methods used in this particular case, that they were actually done and what the results were. Robin Cotton will be testifying completely on the basis of hearsay to the typing as to the results and as to the frequencies. That is three different major issues which the Court is going to have to make a preliminary decision on, forgetting Frye, forgetting all these other issues. I think it is not fair. They will be able to call their witness, whoever their witness is they want who lays a proper foundation, has the credentials and can testify to frequency and can take the frequencies articulated by Robin Cotton and multiply them or add them or do whatever she intends to do them to compound them, but not to do it this way.
MR. CLARKE: I think this can be offered as a hypothetical. Talk about a good basis for some of the questions that have been asked, I mean, this couldn't be any clearer.
THE COURT: I'm going to sustain the objection. I think that this is so broad and the foundational basis that needs to be laid for yet another PCR test and for the appropriate procedures and all of that, to allow in results before any of that is done, I think the Court, in its discretion with regards to the order of proof, will sustain the objection.
MR. CLARKE: All right. Could I have just a moment, your Honor?
THE COURT: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Just one further comment if I could, your Honor.
THE COURT: Certainly.
MR. CLARKE: Just with regard to this process, it will put us in the position of to having bring Dr. Cotton back another time, and I think based on all of this evidence and the fact that we have it available, it is certainly in good faith that we legally have the right to do so, and I think under these circumstances the Court should.
THE COURT: All right. Noted. Denied.
MR. CLARKE: Very good. In that event, we are ready to proceed.
THE COURT: Thank you. 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, please. All right. The record should reflect that we have been rejoined by all the members of our jury panel. Mr. Clarke, you may proceed.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Dr. Cotton, if we can, I would like just to go back to the results from the Bronco, that is, the steering wheel stain, item no. 29. You have described the fact that Mr. Simpson is not excluded or could have been a person who provided that blood stain; is that right?
DR. COTTON: Yes, that's right.
MR. CLARKE: And let's just start with DQ-Alpha. How do you know that? What about those results let's you know that?
DR. COTTON: Item 29 has the following alleles: For DQ-Alpha it has a 1.1, a 1.2 and a 4. Mr. Simpson--
MR. CLARKE: If I could, I'm sorry, I'm going to ask you if you would to point to the board as far as those markers that you just described for DQ-Alpha so that we can all see that.
THE COURT: Steal my pointers?
DR. COTTON: Here is one.
MR. CLARKE: All right.
DR. COTTON: Okay. Mr. Simpson is shown at the very top of the board and he has a 1.1 and a 1.2. The steering wheel, item no. 29 sample, has a 1.1 and a 1.2 and a 4, so two of the--two of the alleles or types that are found on the steering wheel are the same as Mr. Simpson's type, so he would be included based on the DQ-Alpha results as being a possible donor to the DNA taken from item 29.
MR. CLARKE: Without getting into the individual types of the five polymarkers, was the same also true based on your typing results from that particular set of markers?
DR. COTTON: Yes, it was.
MR. CLARKE: Now, what about Nicole Brown? You described the fact that she also could be a donor of that stain.
DR. COTTON: That's correct.
MR. CLARKE: What do you base that conclusion on?
DR. COTTON: Nicole Brown has a 1.1 type. She has two 1.1 alleles. There is a 1.1 in the steering wheel; and therefore, based on the DQ-Alpha results, she would also be included as a possible donor to that mixture of people.
MR. CLARKE: What statement, if any, can you make that about DQ-Alpha 4 that is also a result obtained from this steering wheel?
DR. COTTON: The DQ-Alpha 4 is shared with the allele 4 for Mr. Goldman, but his allele 1.3 isn't visible in the DQ-Alpha type from the steering wheel, so that 4 comes from someone, but we don't--we can't make any determination as to who.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: As far as the results, and let's take the result you obtained in this case and let's take the steering wheel stain as an example--this is a picture, correct, of what you tested?
DR. COTTON: Yes.
MR. CLARKE: As far as when portions of a mixture may have been left on that steering wheel, can you scientifically state that they occurred at the same time?
DR. COTTON: No, absolutely not.
MR. CLARKE: All right. If I could then, your Honor, I'm going to ask to be marked as People's exhibit 261 a further results board.
THE COURT: All right.
(Brief pause.)
MR. CLARKE: Which can be described, I believe, as the Rockingham residence and I believe that is right behind the current board.
THE COURT: All right. 261.
(Brief pause.)
(Peo's 261 for id = posterboard)
THE COURT: And we will need to raise that up.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, Dr. Cotton, referring you to this third results board labeled "Rockingham residence" and in particular to an item marked "no. 7, Rockingham driveway"--
DR. COTTON: Yes.
MR. CLARKE: --I believe you even discussed this item a little bit earlier this morning; is that right?
DR. COTTON: Yes.
MR. CLARKE: Did you in fact use that particular evidence stain from the Rockingham driveway and type it using the PCR technique?
DR. COTTON: Yes, we did.
MR. CLARKE: With what results?
DR. COTTON: The results that we got, umm--we got DQ-Alpha types. We got polymarker results. There was no C dot again on this DQ-Alpha type, so although we saw some dots and we recorded those, there was no C dot for the DQ-Alpha. The polymarker results had the appropriate control dot and they were reported.
MR. CLARKE: As far as these DQ-Alpha results on the Rockingham driveway, stain no. 7, did you say that you don't--well, let me rephrase that. You didn't see a C dot; is that right?
DR. COTTON: That's right.
MR. CLARKE: And as part of your protocol what effect does that have on your results?
DR. COTTON: Well, it is the same thing that I said earlier this morning. That means the types that you have are types that are in that sample, but you cannot be guaranteed that there are not types that you are not seeing. That is, there may be types in the sample that you are not seeing in your DQ-Alpha results.
MR. CLARKE: Was there anything about the types that you did see that excluded, for instance, Mr. Simpson?
DR. COTTON: No, there were not.
MR. CLARKE: All right. Your Honor, with the Court's permission I'm going to reveal the first magnetic cover.
THE COURT: Proceed.
(Brief pause.)
MR. CLARKE: And as far as these results, Dr. Cotton, can you make any statement about the three parties in this case, whether any of them can be included or excluded from these results?
DR. COTTON: Based on the polymarker results, the--Mr. Simpson can be included and Nicole Brown and Ronald Goldman are excluded.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: And again, your Honor, with the Court's permission, I will remove that cover.
THE COURT: Proceed.
(Brief pause.)
MR. NEUFELD: Your Honor, for the record, it should be noted same objection I made before be a standing objection for similar situations.
THE COURT: Noted. Thank you.
MR. NEUFELD: Thank you.
THE COURT: Proceed.
MR. CLARKE: Let's turn to what's marked no. 12, the Rockingham foyer stain. Do you recall that?
DR. COTTON: I do.
MR. CLARKE: And you testified yesterday, as well as this morning, about the fact that that stain was tested using the RFLP method?
DR. COTTON: That's right.
MR. CLARKE: And there was a match obtained to Mr. Simpson; is that right?
DR. COTTON: That's right.
MR. CLARKE: At how many probes?
DR. COTTON: Five.
MR. CLARKE: Your Honor, I'm going to ask to remove that label.
THE COURT: Proceed.
(Brief pause.)
MR. CLARKE: And then let's turn to the PCR results on that particular stain. Did you obtain some?
DR. COTTON: Yes, we did.
MR. CLARKE: What were they?
DR. COTTON: The results that we obtained on item 12 indicate that Mr. Simpson is a possible donor and that Nicole Brown and Ronald Goldman are excluded as possible donors.
MR. CLARKE: Your Honor--your Honor, with the Court's permission again may I remove those labels?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: Other than the fact that with regard to the Rockingham driveway stain no. 7 and the fact that no C dot was observed, are the types you actually detected the same in both no. 7 and no. 12, the Rockingham foyer stain, as far as the PCR results themselves?
DR. COTTON: Yes. The types that we saw are the same.
MR. CLARKE: And they both include Mr. Simpson but exclude both Ronald Goldman or Nicole Brown?
DR. COTTON: Yes.
MR. CLARKE: As far as no. 7 is concerned, the driveway stain, did you even attempt RFLP typing?
DR. COTTON: I don't--no, we didn't.
MR. CLARKE: Why not?
DR. COTTON: The stain was too degraded--the DNA was too degraded.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. As far as the particular items in this case, were you provided an unstained control from either of these stains?
DR. COTTON: For 12 and 7?
MR. CLARKE: And did you test those--I'm sorry, are you able to determine if you obtained controls for each of those items or one item or what?
DR. COTTON: Umm, probably so, but are they in the set of controls that we obtained at the very end?
MR. CLARKE: I believe so, if that will help you locate the document.
DR. COTTON: It would.
(Brief pause.)
DR. COTTON: Yes.
MR. CLARKE: And was that both 7 and 12 or just one or the other?
DR. COTTON: It was both 7 and 12.
MR. CLARKE: And were these unstained substrate type controls that you were asked to test?
DR. COTTON: Yes, they were.
MR. CLARKE: Did you obtain any DNA results from either one of those controls?
DR. COTTON: We did not obtain any results from either of those controls.
MR. CLARKE: Now, taking you back to item no. 7, the Rockingham driveway stain, I believe you said the DNA was too degraded to use RFLP typing?
DR. COTTON: Yes.
MR. CLARKE: What does that mean?
DR. COTTON: It means that the DNA had been broken up in a random manner by whatever affects it was exposed to and so it was--the pieces were basically too small to give an RFLP result.
MR. CLARKE: And therefore you turned to PCR typing?
DR. COTTON: PCR.
MR. CLARKE: All right. With respect to these substrate controls, again what does that negative result mean to you as an analyst?
DR. COTTON: It means that in--where--from wherever the substrate control was taken, presumably in a close--in an area close to the stain, that there was no DNA in that area.
MR. CLARKE: All right. Your Honor, I would like to turn to one final results board. I believe that would be People's exhibit 262. I believe it can be described as the results board for the socks.
(Brief pause.)
THE COURT: All right. 262, results board, socks.
(Peo's 262 for id = posterboard)
(Brief pause.)
MR. CLARKE: Dr. Cotton, referring you to this new board that has been marked or will be marked that refers to People's 262, the Rockingham socks, you have already described RFLP testing that was conducted on stain material provided to you; is that correct?
DR. COTTON: Yes.
MR. CLARKE: And you described that material or that blood staining as matching Nicole Brown; is that right?
DR. COTTON: That's correct.
MR. CLARKE: The five probes?
DR. COTTON: The five probes.
MR. CLARKE: Did you also--and your Honor, may I remove the RFLP results cover?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: Dr. Cotton, you described the fact that that five-probe match was with Nicole Brown; is that right?
DR. COTTON: That's right.
MR. CLARKE: May I also remove that cover, your Honor?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: Now, turning your attention, Dr. Cotton, if I can, to PCR testing, was that also done on this DNA this blood-stained material from that sock?
DR. COTTON: Yes, it was.
MR. CLARKE: With what results?
DR. COTTON: The results from the PCR testing, which is DQ-Alpha and polymarker, include Nicole Brown as being a donor and exclude Mr. Goldman and Mr. Simpson.
MR. CLARKE: All right. Your Honor, at this time may I remove the final cover?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: Does that mean then, Dr. Cotton, that not only RFLP typing matched Nicole Brown, but so did six additional genetic markers using PCR?
DR. COTTON: It certainly does.
MR. CLARKE: Now, Dr. Cotton, I would like to turn your attention to and return for a few moments to population frequency data. You use frequency data again in your description of the meaning of results; is that right?
DR. COTTON: That's correct.
MR. CLARKE: And the reason for that again is what?
DR. COTTON: For any set of genetic markers, a particular combination might be more common or less common depending on the alleles, because not--some alleles are common and found in lots of people and some alleles are not very common and not found in very many people, so it is a way to say this is a common type or a rare type that we have identified in a particular sample.
MR. CLARKE: Now, you described a couple days ago about determining this estimate, this means of providing some description about how rare or common types are that may be shared as being able to be used when more than one genetic marker is concerned; is that right?
DR. COTTON: That's right.
MR. CLARKE: How do you do that?
DR. COTTON: Essentially you are saying how often do I see the set of characteristics in the first genetic marker I look at and then how often do I see the set of characteristics in the second genetic marker I've looked at. So the overall combination is that how often would I see the combination genetic characteristics from the first marker and the second marker would be the product of those two numbers, that is, you would multiply them together and that would give you the overall estimation of how often you would see the group of characteristics from two markers. If you added an additional marker, then you would multiply that in as well and so on.
MR. CLARKE: Why is it appropriate or okay to do that, to provide this estimate?
DR. COTTON: As long as the markers are inherited independently and are statistically independent of each other in their inher--that is, they need to be on separate chromosomes, but also people would ask are they statistically independent? As long as they are independent of one another, then the appropriate mathematical calculation is to multiply those individual frequencies of occurrence together to get the overall frequency of occurrence.
MR. CLARKE: Now, with regard to this, and I believe you said different chromosomes; is that right?
DR. COTTON: That's right.
MR. CLARKE: Do you in fact use--and let's look at RFLP typing first. Do you use probes that have some different chromosomes or the same chromosomes?
DR. COTTON: Of the five probes that we used, they are all on different chromosomes, with one exception, that is, two are on the same, although they are located at a considerable distance apart, which means that they also would be inherited independently, and the remainder are on four additional and different chromosomes.
MR. CLARKE: That was going to be my next question. How can you use, for instance, these two probes or two genetic markers that you said were on the same chromosome?
DR. COTTON: It is--the long explanation, which I won't try to give you, has to do with how DNA is distributed when eggs and sperm are created, that is, because they each have half. When two markers are relatively far apart on a chromosome, the chances of them being passed on to an offspring are equal. That is, it would be--they wouldn't tend to be passed along together and if something--I'm not doing this part very well. If two markers are close together on a chromosome, when that DNA goes into an egg or a sperm, they tend to go together. There is exchange of DNA between the chromosomes while eggs and sperm are being created, so that if two markers are far apart, they are not any more likely to go into the same egg or sperm as two markers that are on different chromosomes. That is the best I can do with--without giving a long biology lesson.
MR. CLARKE: All right. With regard to these two markers that are on the same chromosome, have you done or have you established or shown to your satisfaction or other satisfaction that in fact they are not inherited together?
DR. COTTON: The--the work was not done at Cellmark, the work was originally done by Alec Jeffries, and he established that they are in fact sufficiently far apart to be considered to be inherited independently.
MR. CLARKE: Now, you have described this multiplication process, that is, the frequency at one marker, the frequency at the next marker and so forth. Is that any different than what has been used in these conventional serology cases about which we spoke for a number of years?
DR. COTTON: No, it would be the same calculation as used in conventional serology.
MR. CLARKE: Now, as far as calculating frequencies, did you calculate frequencies in this case based on your laboratory's results?
DR. COTTON: Yes, we did.
MR. CLARKE: And was that for the various samples that you have described over the last two days?
DR. COTTON: Yes.
MR. CLARKE: First of all, do you keep databases in your laboratory?
DR. COTTON: Yes, we do.
MR. CLARKE: What are those?
DR. COTTON: It is basically a sample of a population of people from which you will derive your estimation of how often you would see a particular genetic characteristic.
MR. CLARKE: And what purpose do you use these databases for?
DR. COTTON: To ultimately assign a frequency to the genetic characteristics in a particular test and then assign an overall frequency for some combination of characteristics.
MR. CLARKE: As far as these RFLP results in this case, and I believe you have described samples that match, for instance, Mr. Simpson; is that right?
DR. COTTON: Yes.
MR. CLARKE: As well as samples that match Nicole Brown?
DR. COTTON: Yes.
MR. CLARKE: Do you compare those set of characteristics or have you compared those set of characteristics to the number of individuals in your databases?
DR. COTTON: Yes, we have.
MR. CLARKE: Do either one of them match anyone in your databases?
DR. COTTON: No, they do not.
MR. CLARKE: Now, as far as your calculation--actually, let me ask another question. As far as your calculation of frequencies in this case, are those simply estimations of how rare these matching characteristics are?
DR. COTTON: Yes.
MR. CLARKE: What role, and I think you touched on this the day before yesterday, what role do major racial groups have in this frequency calculation process?
DR. COTTON: For some genetic characteristics they can be more common--let me give a concrete example, maybe it will be a little bit easier. Let's just take DQ-Alpha, for example. And I'm making up these figures, since I don't remember the real ones. Let's say the type 1.1, 1.1. It could be very common in Caucasians and very rare in Hispanics or it could be very common in Caucasians and very rare in blacks, or the reverse, and so in order to give an appropriate range of how common or rare a set of characteristics is, it is usual to say this is the--this is the figure for how often you would see this in Caucasians, this is the figure for how often you would see this in African Americans and this is the figure how often you would see this in Hispanics. And if you had other racial databases at your disposal, you could go and do that for other groups as well.
MR. CLARKE: Why don't you simply calculate an estimate of the frequency based on one group as opposed to another?
DR. COTTON: Well, you could. It would sort of give you an overall kind of averaged figure, but it wouldn't give you the range of figures that using individual racial groups would, and therefore using individual racial groups is generally considered to be a more informative way of giving that number.
MR. CLARKE: In the way of calculating these estimates, do you take any steps along the way--well, do you have to make decisions about kind of which way to do something when you calculate these frequencies? Does that make any sense?
DR. COTTON: No.
MR. CLARKE: Okay. Let me try that again then. Do you take any steps along the way to ensure that you are not making something sound, as far as a match, rarer than it really is?
DR. COTTON: The particular steps that are taken--let me just refer to RFLP, because this is really where that becomes--that question becomes applicable. If you remember a couple days ago, I guess, I talked about--we sort of drew out a small database of five people and talked about looking at a window of sizes around a particular DNA fragment size, and it is that window that you are using to reflect the accuracy of your gel system and to not overestimate how rare a particular characteristic is.
MR. CLARKE: As far as this calculation process itself, do you go through it, whether it is an RFLP type test or a PCR type test that is used?
DR. COTTON: Yes.
MR. CLARKE: Are there different--I think you said that there were a little bit different considerations in each of the two; is that right?
DR. COTTON: In the PCR test, when you have, say, a 1.1 allele, you don't have any particular window you need to put around that. That is clearly defined as a 1.1; it is not close to a 1.1. It doesn't have the same features of creating a DNA fragment size where you know that that fragment size is also an estimation. So you have a 1.1 and you don't need to build a window around that, so you can go directly to your database and use the frequencies in the databases that you have available to you.
MR. CLARKE: Now, as far as these various samples, do you calculate then this estimate or did you calculate this estimate based on different major racial groups?
DR. COTTON: Yes, we did.
MR. CLARKE: Can you describe what those racial groups are?
DR. COTTON: We did the RFLP and the PCR estimates for African Americans, Caucasians and Hispanics.
MR. CLARKE: Why do you use those groups?
DR. COTTON: Those--those are the groups that we have data on at Cellmark, and in addition, the PCR data, some of that population data was compiled from other laboratories as well. The only other major racial group that we might use in the United States might be oriental, which would include Japanese and Chinese and Korean and so on. We do not at Cellmark have a population database that is currently in use for that racial group, so we aren't providing any statistical estimates for that group.
MR. CLARKE: As far as these racial groups, and you have described that you have reported, for instance, in this case, results from three major groups?
DR. COTTON: That's right.
MR. CLARKE: What about the existence of other population groups around the world? There is more than three, obviously, and you have named a fourth.
DR. COTTON: Is that a question?
MR. CLARKE: I think that is a question, but I better make sure it is a question. You just named a fourth group, for instance, that you don't report results for?
DR. COTTON: That's right.
MR. CLARKE: And I believe you described the fact that that is because you don't have database material; is that right?
DR. COTTON: That's right.
MR. CLARKE: How do you know, when you report frequencies from these three groups, that you did perform that estimate process in this case, that somehow you are not overstating the rarity dramatically or significantly when other population groups may have in fact a more common set of these characteristics?
DR. COTTON: Besides the population data that is available--available in our laboratory, there is an enormous amount of population data that has been produced by forensic laboratories all over the United States and all over Europe and a few laboratories elsewhere, including Australia and Japan. The system that we use that I discussed for this testing is not--I can't take our population data at Cellmark and compare it to population data that has been produced by the Federal Bureau of Investigation or the California Department of Justice, because we used a different restriction enzyme, and if you will just accept for the moment that that makes the DNA sizes a little bit different. However, the European community uses the same enzyme that we do, so there has been a lot of work mostly spearheaded through the Federal Bureau of Investigation to get all of the population data that has been obtained all together in one major volume. And when you look at all of this data together, what you see is that there are some differences in the populations, but they are not huge for RFLP loci, for those loci. This is not applicable--what I'm saying is not correct about the PCR loci. So I'm just talking about RFLP, so that you could go on and do more racial groups, but they would continue to produce numbers in the same range that you are getting with three or four, so it would be a more refined estimate, but it wouldn't really provide you with a huge amount of information that you aren't already getting with three.
MR. CLARKE: Now, I believe you said that it does not apply to the PCR groups. What do you mean?
DR. COTTON: The PCR locations that we've tested here do differ significantly from one racial group to the next, so if you did more than three groups, you might still see some differences, that is, you might get something that is more common than the three examples that we've provided or less common than the three examples we've provided. You could do that. We don't have that data at Cellmark. The data is available in the literature, but for convenience purposes we still in our reports for PCR provide the three groups that I've already talked about.
MR. CLARKE: Now, as far as your reporting in this case, did you report estimated frequencies, in other words, estimates of how rare match characteristics are in the three major racial groups you have described?
DR. COTTON: Yes, we did.
MR. CLARKE: Now, as far as those estimates, can you or will you be able to tell us basically the range, that is, among those three groups as far as a set of characteristics to a sample, let's say, which is the most common group, that is the group with the most common estimate, versus the group with the least common or rarest estimate?
DR. COTTON: Yes.
MR. CLARKE: Would that then by doing so represent the range of rarity of matching characteristics?
MR. NEUFELD: Objection, foundation for this witness.
THE COURT: Overruled.
MR. CLARKE: Now, your Honor, at this time I would like to return to the Bundy crime scene results board, exhibit 259.
THE COURT: All right.
(Brief pause.)
THE COURT: And let me see counsel at the side bar with the reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. Mr. Neufeld, I anticipate that you are going to raise foundational objections at this point regarding Dr. Cotton's qualifications to be making these estimates. Do you want to put that on the record?
MR. NEUFELD: Thank you. There is two problems: One is that yesterday, I believe it was over my objection, the Court found her qualified to give expert testimony on statistical inferences to be drawn from evidence, but now we are talking about something even more complicated; we are talking about population substructure and the range of frequencies. And I think that that is something that falls directly within the expertise of a population geneticist or a biostatistician and merely not somebody who is merely a molecular biologist, such as Robin Cotton. And therefore, I don't believe there is a proper foundation for her giving an opinion on a range of frequencies or the range of variation in the world.
THE COURT: Uh-huh.
MR. CLARKE: I thought the Court overruled this objection two days ago, but again I think--
THE COURT: We are about to actually get into the calculations themselves. I think we are about to see numbers at this point, and I anticipated that Mr. Neufeld was going to make the objections so I figured we might--since we are getting a board up, we might as well do it over here.
MR. SCHECK: Thank you, your Honor.
MR. CLARKE: Her qualifications are amply demonstrated under case law. The threshold for even reporting population frequency data are fairly low in comparison to a Frye hearing standard. And this witness I think has established not only her expertise in terms of education, but also training while at Cellmark for years. She is the supervisor of the reporting of frequency data and described the fact how the methods in place in the lab had been reviewed extensively by more than one population geneticist, including one on board who has verified that the methods that she is responsible for in the lab are appropriate.
MR. NEUFELD: I would just note that there is a difference between her role as a director of the laboratory being able to do calculations and report frequencies, as opposed to her making--giving expert opinions as to what the range of frequencies are in the world for different ethnic or racial populations. Those are two different things. You may have qualified to do the former, but that doesn't mean she is qualified to do the latter, and I don't believe there has been a sufficient foundation for the latter.
THE COURT: All right. I will overrule the objection.
MR. NEUFELD: Just so the record is clear, there is a standing objection insofar as each time she either testifies to a frequency or testifies to population frequency ranges.
THE COURT: Right. This goes to her testimony as to all of these frequency range calculations.
MR. NEUFELD: Thank you.
THE COURT: All right. Thank you, counsel.
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Proceed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Dr. Cotton, referring you to the board that has been marked People's exhibit 259, in particular item 47, "first drop by the victims at Bundy."
DR. COTTON: Yes.
MR. CLARKE: Did you in fact calculate an estimate of the rarity of individuals having the characteristics or those genetic marker types at the six markers, DQ-Alpha plus the polymarkers, and Mr. Simpson?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you in fact in doing so use these three racial categories?
DR. COTTON: Yes, we did.
MR. CLARKE: Did they present you with--I'm sorry, let me rephrase. Did you then obtain estimates that ranged for a low for one group, whatever that group may be, to a high for another group, whatever remaining group that is?
DR. COTTON: Yes, we did.
MR. CLARKE: Okay. Can you then describe--may I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Can you describe for us, with regard to this evidence item, approximately how rare those characteristics are that are shared by that bloodstain and Mr. Simpson and start with whatever group it would be easier to and tell us that approximation. Does that make any sense?
DR. COTTON: What do you mean "start with whatever group"?
MR. CLARKE: Well, let's start with Caucasians for instance.
DR. COTTON: Oh, I see. Okay.
(Brief pause.)
DR. COTTON: And we are working on item 47, right?
MR. CLARKE: Correct, and this would be using the DQ-Alpha and polymarkers.
DR. COTTON: Did you want me to just give the most common and the most rare?
MR. CLARKE: Let's start with the most common.
DR. COTTON: The most common would be for African Americans and that would be one in 5000--approximately 5200.
MR. CLARKE: I'm going to have you write those on the board, if you would, in just a moment.
DR. COTTON: Okay.
MR. CLARKE: But could you tell us the group that would be the next most common?
DR. COTTON: The next most common would be Hispanic and that figure would be that that set of types was found in approximately one in every 32,000 Hispanics.
MR. CLARKE: And then what would be the rarest racial group as far as these characteristics?
DR. COTTON: For these set of characteristics, the most rare frequency that we determined was for Caucasians and it would be one in 56,000.
MR. CLARKE: All right. Dr. Cotton, with the Court's permission, I'm going to ask you to write to the far right of item 47 under the column marked "frequency," and start with the most common estimate in terms of the racial group wherein these characteristics are most common, and if you would write that number, then write in the word, "to" just to indicate the range and then the least common or rarest estimate calculation that you just provided.
DR. COTTON: Okay.
MR. CLARKE: And I have a red pen if that would help. Is that diagram low enough for you to write on?
DR. COTTON: Yes.
MR. CLARKE: All right.
DR. COTTON: (Witness complies.)
THE COURT: It may not be steady enough. Mr. Fairtlough, do you want to hold on to that, please.
MR. FAIRTLOUGH: Yes, your Honor.
(Brief pause.)
THE COURT: Mr. Clarke.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Dr. Cotton, we will move a little faster with the succeeding ones, but I want to ask you a couple of questions first. When you have provided this range from one in 5200 people to one in 56,000 people, is that simply an estimate across these three racial groups of approximately how common or rare these DNA types are that are shared by this bloodstain and Mr. Simpson?
DR. COTTON: Yes. You have stated it exactly right.
MR. CLARKE: Drawing your attention to item no. 48, the Bundy walkway, first of all, were those results, as far as the DQ-Alpha and polymarker is concerned, the same as item 47?
DR. COTTON: Yes, they were.
MR. CLARKE: All right. All right. And perhaps we can make this a little faster. Is that also true to the other Bundy walk stains as far as PCR testing is concerned, items no. 49, 50 and 52?
DR. COTTON: Yes.
MR. CLARKE: All right. What I'm going to ask you to do then, Dr. Cotton, is as to those four items, the Bundy walk stains, 48, 49, 50 and 52, would you again please write those frequencies in the appropriate boxes for your PCR testing at Cellmark.
DR. COTTON: Yes.
MR. CLARKE: All right. Could you go ahead and do so.
DR. COTTON: (Witness complies.)
MR. CLARKE: And on 52, if you could wait just a moment, I believe there is two rows there and I believe it would be the lower row for PCR. Your Honor, may we remove that marker?
THE COURT: Yes.
MR. CLARKE: And if you could in a somewhat smaller box write that in.
DR. COTTON: (Witness complies.)
MR. CLARKE: Thank you, Dr. Cotton. As to these PCR results, if any of these stains were also tested at an additional marker, after using PCR, and that marker was independent of the six that you tested at Cellmark, if those characteristics matched Mr. Simpson, would the estimate be rarer?
DR. COTTON: Yes.
MR. CLARKE: Why?
DR. COTTON: If you take these figures and you add in yet another genetic marker, you are going to be multiplying some frequency which will be less than one, and then taking the inverse, which is how you get the one in some number, and that will mean--it will of necessity make these numbers more rare.
MR. CLARKE: Turning your attention again to the Bundy stain, item no. 52, did you also calculate an estimate of the frequency for the RFLP matching characteristics to Mr. Simpson at five different probes?
DR. COTTON: Yes, we did.
MR. CLARKE: Did that also--or have you also reported an estimate across these three different racial or ethnic groups?
DR. COTTON: Yes, we have.
MR. CLARKE: All right. Could you describe, first orally, in what group those characteristics were most common?
DR. COTTON: If you will just give me a minute.
MR. CLARKE: Sure.
(Discussion held off the record between the Deputy District Attorneys.)
(Brief pause.)
MR. CLARKE: All right. Go ahead.
DR. COTTON: The RFLP pattern from item 52, when that was used to calculate a frequency, the frequency that is calculated for African Americans and Caucasians is the same and those estimations are that that set of characteristics would occur in approximately one in 170 million individuals. The frequency for western Hispanics is more rare than that and that frequency is that that same set of RFLP characteristics would occur in approximately one in 1.2 billion.
MR. CLARKE: 1.2 billion?
DR. COTTON: Yes.
MR. CLARKE: Now, as far as that estimate for African Americans and Caucasians, does that mean that that characteristics Mr. Simpson has that are also found in the Bundy walk bloodstain are only found in approximately one out of 170 million Caucasians or African Americans?
DR. COTTON: Yes, approximately.
MR. CLARKE: All right. If you would then with that stain, and there is a little box just above the last PCR box you wrote in that will describe RFLP, could you write in that range, the high and the low.
DR. COTTON: (Witness complies.)
MR. CLARKE: Dr. Cotton, the difference in the numbers between those estimates provided by PCR and the estimates that you have just provided as a result of the RFLP matches with Mr. Simpson seem to be quite a bit different mathematically; is that right?
DR. COTTON: Yes, they are very different.
MR. CLARKE: Why is that?
DR. COTTON: The RFLP markers have a much, much greater level of variation in the population than the PCR markers. If you had to make them sort of in order, the RFLP markers would be at one end of the continuum, then you would sort of move down a ways and you would see DQ-Alpha and then you would move down yet further, and if you looked at the individual markers that are part of the polymarker system, they are not very informative individually, that is why you use them as a group of five, so the RFLP is--is much more discriminating of a test in terms of separating human beings one from the other.
MR. CLARKE: Now, let's turn, if we can, to the shoe prints, no. 56, and that included results at both DQ-Alpha and the five polymarkers, correct?
DR. COTTON: Yes.
MR. CLARKE: Now, the DQ--
DR. COTTON: No. We didn't include the DQ-Alpha frequency.
MR. CLARKE: That is just what I was going to ask next. As far as the DQ-Alpha result that is written in, those were the types you observed on the shoeprint, 1.1, 1.1, correct, as far as actual types that were detected?
DR. COTTON: As far as the actual types observed, yes.
MR. CLARKE: Now, because there was no C dot or control dot, do you use that result for DQ-Alpha in calculating an approximate or estimate of the frequencies of individuals who have those polymarker or DQ-Alpha characteristics?
DR. COTTON: No. We did not include it in the calculation of the frequency. We only used the information from the polymarker where we did get an appropriate control dot.
MR. CLARKE: Is that to ensure that when you provide these estimates you are only doing it for markers and tests that have worked properly?
DR. COTTON: Yes.
MR. NEUFELD: Objection, leading.
THE COURT: Overruled.
MR. CLARKE: Now, did you calculate an approximate or an estimate of the frequency of the polymarker characteristics that are shared by the shoeprint and Nicole Brown?
DR. COTTON: Yes, we did.
MR. CLARKE: Can you describe those for us?
DR. COTTON: Yes, but you will have to let me find it.
MR. CLARKE: Fine.
(Brief pause.)
DR. COTTON: Okay.
MR. CLARKE: Could you describe them first.
DR. COTTON: The three numbers?
MR. CLARKE: Yes, the most common--I'm sorry, the most common through to the most rare.
DR. COTTON: Okay. For that set of types for the polymarker, the most common frequency was in Caucasians and that number was one in 48. The middle frequency was that for Hispanics and that number was one in 110. And the rarest frequency of that group was for African Americans and that was one in 610. And these again--whenever I say one in something, if I don't say "approximately" one in something, I should be. That is what I mean to be saying.
MR. CLARKE: In other words, you are not offering or your laboratory doesn't offer that when an estimate is made of one out of a hundred, let's say, that if one examined a hundred people one would find one person with these characteristics, went to another group and out of a hundred would find these characteristics once and only once?
DR. COTTON: That is the--what the probability is. Telling you in reality it might be slightly different than that. You might find two in a hundred or none in a hundred.
MR. CLARKE: All right. Could you then, with respect to the shoeprint, then write in those frequency ranges that you just described.
DR. COTTON: (Witness complies.)
MR. CLARKE: Now, item 78, the boot drop, you described that as a mixture, correct?
DR. COTTON: Yes.
MR. CLARKE: All right. Let's turn now then to 84-a, the left nail clippings and scrapings, and you described the fact that at the DQ-Alpha marker and polymarkers, that those characteristics were consistent with Nicole Brown?
DR. COTTON: Yes.
MR. CLARKE: Did you calculate frequencies for that combination of markers?
DR. COTTON: Yes, we did.
MR. CLARKE: Can you describe them in the way that you have previously?
DR. COTTON: Yes. You would have to give me just a second.
MR. CLARKE: All right.
(Brief pause.)
DR. COTTON: Okay.
MR. CLARKE: And these are estimates that you made based on your DQ-Alpha results and polymarker results?
DR. COTTON: That's right.
MR. CLARKE: Could you then describe that for 84-a?
DR. COTTON: They are going to be all the same figure for the various 84 things.
MR. CLARKE: In other words, 84-a, as well as the two samples from 84-b, the right hand nail clippings and scrapings, your laboratory obtained the same results for all three?
DR. COTTON: That's right.
MR. CLARKE: All right. Could you then describe them.
DR. COTTON: The most common figure for that combination of types is one in--approximately one in 2500. The middle range frequency comes out to be the one for Hispanics and that is approximately one in 7300. And the most rare comes out to be the one for African Americans for this combination and that is one in 26,000.
MR. CLARKE: Could you then, in the three locations for item no. 48, the fingernails and clippings--fingernail clippings and scrapings, could you write in that range in the three locations under "frequency."
DR. COTTON: Yes. (Witness complies.)
MR. CLARKE: Thank you, Dr. Cotton. Now, why is there a difference in these estimates between that of the shoeprint no. 56 which matched Nicole Brown, and the estimates for the fingernail clippings and scrapings that also matched Nicole Brown?
DR. COTTON: The difference is that for the fingernail clippings and scrapings, that information includes the DQ-Alpha frequencies, and for the shoeprint, that does not.
MR. CLARKE: If the shoeprint control dot had appeared properly and the types had shown, as they appeared to you, even without the control dot, would the estimated frequency for the shoeprint then be the same as that for the fingernail clippings and scrapings?
THE COURT: Sustained.
MR. CLARKE: In any event, the DQ-Alpha, the fact that there was no result on the shoeprint is what makes these frequencies different?
DR. COTTON: Yes.
MR. CLARKE: All right. Your Honor, at this time I would like to turn to what's been marked People's exhibit 261, the Rockingham results.
THE COURT: All right.
(Brief pause.)
MR. CLARKE: Dr. Cotton, if you would, and I'm referring you to what is the Rockingham driveway stain, item no. 7.
DR. COTTON: Yes.
MR. CLARKE: Did you calculate a frequency for those characteristics that are consistent with Mr. Simpson from that bloodstain?
DR. COTTON: Yes, we did.
MR. CLARKE: And was that for polymarker alone because of the absence of a C dot on the DQ-Alpha results?
DR. COTTON: That's right.
MR. CLARKE: Okay. Could you describe that for us, please.
DR. COTTON: I have to find it.
(Brief pause.)
DR. COTTON: Okay.
MR. CLARKE: And what are those estimates?
DR. COTTON: The estimates range from the most common being for African Americans, approximately one in 410. The middle range happens to be in this case for Hispanics with one in 1500, 1500. And the most rare comes out to be for Caucasians and that is approximately one in 3400.
MR. CLARKE: All right. Would you on the board that has been marked People's exhibit--
THE COURT: 261.
MR. CLARKE: Thank you.
MR. CLARKE: --then write that range next to or at the far end of that Rockingham stain no. 7.
DR. COTTON: (Witness complies.)
MR. CLARKE: And then as to the last result on this board, referring you to the stain from the Rockingham foyer, no. 12, you obtained both RFLP and PCR results, correct?
DR. COTTON: Yes, we did.
MR. CLARKE: As far as this five-probe match using the RFLP technique, did you calculate an estimate of the approximate rarity of those characteristics that match Mr. Simpson using RFLP typing?
DR. COTTON: Yes, we did.
MR. CLARKE: Would that be the same or different from the earlier results from the Bundy crime scene, item no. 52, at which Mr. Simpson matched that Bundy stain as well?
DR. COTTON: It is the same.
MR. CLARKE: All right. Would you just then repeat it by writing it on the board again.
DR. COTTON: (Witness complies.)
MR. CLARKE: Now, Dr. Cotton, you have written in as to the estimations of how rare these matching characteristics are between the bloodstain from the Rockingham foyer that matches Mr. Simpson as between approximately one in 170 million and one in 1.2 billion; is that right?
DR. COTTON: That's right.
MR. CLARKE: And is that the same result again in terms of these estimates as the bloodstain no. 52 at Bundy?
DR. COTTON: Yes, it is.
MR. CLARKE: Now, did you also perform PCR typing on this same Rockingham foyer stain and estimated how rare those characteristics are that are shared with Mr. Simpson?
DR. COTTON: For the PCR types?
MR. CLARKE: Yes.
DR. COTTON: Yes, we did.
MR. CLARKE: In this instance, unlike no. 7, did you also have a DQ-Alpha result?
DR. COTTON: Yes, we did.
MR. CLARKE: All right. Could you describe for us the relative rarity of these characteristics that are consistent with Mr. Simpson using PCR typing?
DR. COTTON: Yes.
(Brief pause.)
DR. COTTON: Those results come out to be the most common frequency for that group of types is in African Americans and that figure is approximately one in 5200. The mid-range frequency comes out to be the one for Hispanics and that is approximately one in 32,000. And the most rare frequency for that group of types comes ought to be the one for Caucasians and that is one in 56,000.
MR. CLARKE: Now, are these estimates the same as with the Bundy crime scene estimate stains that were consistent with Mr. Simpson using PCR?
DR. COTTON: Yes, they are.
MR. CLARKE: All right. Could you then go ahead and write those numbers under the PCR portion of item no. 12, the Rockingham foyer stains.
DR. COTTON: (Witness complies.)
MR. CLARKE: Now, lastly, Dr. Cotton, what I'm going to ask is that the last result board be used, which is People's exhibit 262, and I'm going to refer you to the one result or one evidence item, rather, that you've described earlier, the socks.
(Brief pause.)
MR. CLARKE: Do you have in the material before you your approximations of how common or how rare the matching characteristics are shared by the sock and Nicole Brown?
DR. COTTON: Yes, I do.
MR. CLARKE: With respect to your RFLP typing and the five-probe match, can you describe for the jury, please, approximately how rare those characteristics are shared by the sock and Nicole Brown?
DR. COTTON: For the RFLP results the range of numbers goes from the most--wait one second.
(Brief pause.)
DR. COTTON: The most common being the approximation for western Hispanics and that is one in 6.8 billion. The mid-range figure is for Caucasians and that number is approximately one in 9.7 billion. And the figure that would be most rare is for African Americans and that number is one in 530 billion.
MR. CLARKE: All right. Dr. Cotton, could you on the board, in referring to again the exhibit People's exhibit 262, write in that range for the five-probe match between Nicole Brown and the sock.
DR. COTTON: (Witness complies.)
MR. CLARKE: Next to what has been labeled "RFLP" under the frequency column?
DR. COTTON: (Witness complies.)
MR. CLARKE: All right. Dr. Cotton, you have written in under frequencies one in 6.8 billion, one in 530 billion; is that right?
DR. COTTON: Yes.
MR. CLARKE: How many people are on earth?
DR. COTTON: Well, I don't personally know, but the figure I've been quoted is about five billion, I think.
MR. CLARKE: What do these results mean then?
MR. NEUFELD: Objection.
THE COURT: Sustained.
MR. CLARKE: Did you also calculate a frequency, just based on your PCR typing, of the sock as well?
DR. COTTON: Yes, we did.
MR. CLARKE: And could you describe that for us.
DR. COTTON: Yes. Just one second.
(Brief pause.)
DR. COTTON: Based on the PCR types alone, the figures come out as follows: The most common is for Caucasians and that figure is one in approximately 2500. Mid-range frequency is for Hispanics and that number is one in approximately 7300. And the most rare type comes out to be the one for African Americans, and that is approximately one in 26,000.
MR. CLARKE: Are these the same estimates on the earlier sample using PCR that were consistent with Nicole Brown, such as the fingernails?
DR. COTTON: Yes.
MR. CLARKE: All right. And lastly, could you just write those numbers under "PCR" for the sock.
DR. COTTON: (Witness complies.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: And again these were six different genetic markers using PCR and the five markers used to type this sample using the RFLP process?
DR. COTTON: Yes.
MR. CLARKE: All right.
THE COURT: Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all my admonitions to you. Do not discuss this case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess until one o'clock.
(Brief pause.)
THE COURT: All right. Dr. Cotton, you may step down.
(at 12:04 P.M. the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; THURSDAY, MAY 11, 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. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, anything we need to take up before we invite the jurors to rejoin us? 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.
Robin Cotton, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:
THE COURT: Good afternoon again, Dr. Cotton.
DR. COTTON: Good afternoon.
THE COURT: You are reminded you are still under oath. And, Mr. Clarke, you may conclude your direct examination.
MR. CLARKE: I shall. Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
DIRECT EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Dr. Cotton, following the end or when you concluded testing on different pieces of evidence, would they be returned to the original agency that sent them to you?
DR. COTTON: Yes.
MR. CLARKE: And as far as evidence in this case was concerned, did the bulk of it--was the bulk of it returned to the Los Angeles Police Department?
DR. COTTON: Yes.
MR. CLARKE: Did you release a couple of pieces, at least two pieces of evidence to another laboratory?
DR. COTTON: Yes, we did.
MR. CLARKE: All right. In particular, can you tell us--with regard to the Bundy bloodstain, item no. 52, can you tell us when it was released?
DR. COTTON: It was released on October 13th, 1994.
MR. CLARKE: To the custody of any particular individual?
DR. COTTON: To the custody of Michael Stevens.
MR. CLARKE: Do you know who Michael Stevens is?
DR. COTTON: Uh, he--in parenthesis, it has L.A. D.A. I assume that stands for Los Angeles District Attorney's office.
MR. CLARKE: All right. With regard to this Bundy stain, item no. 52, can you describe for us, please, exactly what was released to his custody?
DR. COTTON: Yes, but, umm, you'll have to wait one second.
MR. CLARKE: All right.
(Brief pause.)
DR. COTTON: It would have been the 10 percent cuttings from the two bloodstains that comprise that item.
MR. CLARKE: So this would have been--as far as this particular evidence, item 52, the Bundy bloodstain, was concerned, would have been two of those little cuttings, the smaller or 10 percent or approximate 10 percent portions?
DR. COTTON: Yes.
MR. CLARKE: And that would have been two separate cuttings, but from the same evidence swatches?
DR. COTTON: That's right.
MR. CLARKE: Were those the cuttings made by Dr. Blake?
DR. COTTON: Yes, they were.
MR. CLARKE: On that date, did you also release to Mr. Stevens anything with regard to no. 78, the boot stain?
DR. COTTON: Yes, we did.
MR. CLARKE: What was that?
DR. COTTON: Uh, hang on just one minute.
(Brief pause.)
DR. COTTON: That would have been, uh, the 10 percent cutting from that also.
MR. CLARKE: Again, also--that would be a single 10 percent cutting?
DR. COTTON: Yes.
MR. CLARKE: And was that also the cutting done by Dr. Blake?
DR. COTTON: Yes.
MR. CLARKE: As far as the Department of Justice was concerned, did you at some time provide them with any photographs of your product gels?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you also provide them photographs of your yield gels?
DR. COTTON: Yes, we did. That's sort of the same thing.
MR. CLARKE: In what way?
DR. COTTON: Product gel is synonymous with yield gel. We provided them a picture of that gel, but it's the same--you've used two terms to describe the same thing.
MR. CLARKE: Okay. Are these the gels that you look at to see if the DNA has amplified?
DR. COTTON: Oh, okay. Never mind. I'm sorry. Uh, product gel being the gel--we haven't actually talked about that, but you can run a small gel to see if your DNA is amplified and, yes, product gel in that sense is different from yield gel, and we did provide that, both of them.
MR. CLARKE: Both types to the Department of Justice?
DR. COTTON: Yes.
MR. CLARKE: Now, Dr. Cotton, to your knowledge, have all the records, raw data or copies of the raw data and photographs in this case from your laboratory been provided to the Defense?
DR. COTTON: Yes.
MR. CLARKE: Do you know of any case in your laboratory where the volume of materials provided to the Defense has been more extensive than this case?
MR. NEUFELD: Objection. Irrelevant.
THE COURT: Sustained.
MR. CLARKE: Did you provide the Defense your population databases?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you provide them your written protocols and manuals?
DR. COTTON: Yes, we did.
MR. CLARKE: Dr. Cotton, as a result of the testing and the results you've described at your laboratory, are there any questions in your mind about the accuracy of the results reported by your laboratory in this case?
DR. COTTON: No, there are not.
MR. CLARKE: All right. Thank you. No further questions, your Honor.
THE COURT: All right. Mr. Neufeld, you need some--a moment?
MR. NEUFELD: I need some time just to set up and move things around.
THE COURT: All right. Ladies and gentlemen, as you know, when we switch from direct examination to cross-examination, I normally take a break to allow the lawyers to shift their exhibits and things and get organized. So we'll take probably 10, 15 minutes. Let me ask you to step back into the jury room. All right. We'll take a brief recess.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Ready?
MR. NEUFELD: Yeah. Yes.
THE COURT: Let's have the jury, please. Is this a small board or note pad, Mr. Neufeld?
MR. NEUFELD: I'm sorry, your Honor?
THE COURT: What kind of a board is this? How do you propose we preserve that for the record?
MR. NEUFELD: We're going to--Howard is going to take a photograph of it.
THE COURT: All right.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Dr. Cotton, would you resume the witness stand, please. All right. Mr. Clarke, as to the items presented thus far, you've completed your direct examination subject to the reopening, correct?
MR. CLARKE: Yes, your Honor.
THE COURT: Mr. Neufeld, you may commence your cross-examination.
MR. NEUFELD: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
CROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Good afternoon, Dr. Cotton.
DR. COTTON: Good afternoon.
MR. NEUFELD: Now, Dr. Cotton, on direct examination, you were asked repeatedly during the direct examination whether or not degradation, okay, the process of degradation could change one person's DNA into another, and I believe that each time you answered that question, you said no; is that right?
DR. COTTON: That's right.
MR. NEUFELD: And by the way, have you been following this trial at all?
DR. COTTON: Uh, I've watched, uh, part of the opening arguments and then bits and pieces of testimony and maybe 30 minutes here and there as the trial's gone along.
MR. NEUFELD: Okay. Have you at all at any time during these proceedings that you followed, Dr. Cotton, ever heard either Mr. Blasier, Mr. Scheck or myself suggest to any witnesses at all that through the process of degradation, a person's blood could change from one person to another?
MR. CLARKE: Objection. Irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Well, let me ask you a hypothetical, Dr. Cotton. Like you to assume for a moment that the blood drops that were recovered from Bundy do not come from Mr. Simpson, but instead come from some other person, and I would also like you to assume for the purpose of this hypothetical that the blood drops recovered at Rockingham are indeed Mr. Simpson's blood. All right?
DR. COTTON: Okay.
MR. NEUFELD: Thank you. Now, I would also like you to assume for the purpose of this hypothetical that due to the manner in which the Bundy blood drops were collected, packaged and processed, that they became degraded. Okay?
DR. COTTON: Okay.
MR. NEUFELD: And, in fact, you've described I think in detail during direct examination how bloodstains or blood drops can become degraded; isn't that right?
DR. COTTON: Yes.
MR. NEUFELD: For instance, in this case, you mentioned that the--
THE COURT: Excuse me, counsel. We're going to have to move this easel because it's blocking two of the jurors' view of Dr. Cotton.
MR. NEUFELD: Okay. Sorry.
(Brief pause.)
THE COURT: All right. Thank you, counsel. Proceed.
MR. NEUFELD: Sorry.
MR. NEUFELD: For instance, you mentioned during direct examination that item 56--and I'm asking that item 56, which is exhibit no. 256, go up on the elmo.
MR. NEUFELD: One moment, your Honor.
(Brief pause.)
MR. NEUFELD: And I believe if you would, if you could stand and just use the pointer to point out to the jury where lane 56 is again.
DR. COTTON: Down here you mean (Indicating).
MR. NEUFELD: Well--
DR. COTTON: Yes.
MR. NEUFELD: Come over. Come over a little. Now back up one. Blank lanes. There.
(Brief pause.)
MR. NEUFELD: Okay. Is that lane--is that the lane reflecting a DNA test on item 56?
DR. COTTON: Yes, it is.
MR. NEUFELD: Okay. And as you can see, and I believe as you testified, that lane is clear, right?
DR. COTTON: That's right.
MR. NEUFELD: And that's an indication that the DNA from that sample degraded considerably; isn't that correct?
DR. COTTON: Yes.
MR. NEUFELD: And, in fact--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And when you first looked at item 56 in the laboratory, before you even looked at it on the level of DNA, you just saw these swatches, you couldn't tell us from just looking at it that the DNA was degraded; isn't that right?
DR. COTTON: Of course.
MR. NEUFELD: And to the naked eye, in fact, it didn't look any different than item--than item 52 for instance, did it?
DR. COTTON: That's right.
MR. NEUFELD: Now--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, I would like you to assume, ma'am--Dr.--excuse me--
DR. COTTON: Either way is fine.
MR. NEUFELD: Okay. What I would like you to assume, Dr. Cotton, is that those drops on Bundy which did not--which were not left by Mr. Simpson, but were--became degraded in the packaging or handling process such that all the DNA that was in that sample and on those swatches was completely lost to degradation, okay?
DR. COTTON: Okay.
MR. NEUFELD: Now, what I would like you to assume is that when those swatches from the Bundy drops get back to the Los Angeles Police Department laboratory, they are brought into contact with the swatches from Rockingham, which I've already asked you to assume came from Mr. Simpson, okay?
DR. COTTON: Okay.
MR. NEUFELD: And that the Rockingham drops or at least some of them, such as item no. 12, were not very degraded, okay?
DR. COTTON: That's right.
MR. NEUFELD: And I believe you even said on direct examination that item 12 seemed to be in good shape relatively speaking?
DR. COTTON: It does.
MR. NEUFELD: And--and so there was a lot more DNA in item 12 than there was, for instance, item 52; is that right?
DR. COTTON: That's right.
MR. NEUFELD: In fact, a lot more DNA on item 12 which comes from Mr. Simpson's foyer than there was on any of the drops from Rockingham; isn't that right?
DR. COTTON: That's right.
MR. NEUFELD: And what I would like you to assume for the purpose of this hypothetical, Dr. Cotton, is that these blood drops, stains from Bundy, when they're brought back to Los Angeles Police Department laboratory, came into contact with Rockingham drops which had more DNA in it and that those swatches from Rockingham cross-contaminated by accident the swatches from Bundy, okay?
MR. CLARKE: I'm sorry, your Honor. Objection.
THE COURT: Let me see counsel at sidebar, please, with the reporter.
(The following proceedings were held at the bench:)
THE COURT: We're over at sidebar. Mr. Clarke.
MR. CLARKE: I think at this point, there's two misstatements of the evidence. This second version so to speak included that, quote, the blood drops at Bundy did not come--it wasn't even an assumption this time around. Secondarily, it included that these drops came into contact with the drops from the Rockingham scene. So I think at this point, there's two misstatements of the evidence.
MR. NEUFELD: Wait a minute. If your objection is that I have to repeat each time I say the Bundy drops didn't come from Mr. Simpson, that's an assumption, I have no problem with that, although I think it's clear from the series of questions that's all part of the initial assumption. I have no problem repeating that each time. Secondly, I'm saying that they came in contact with the swatches of the blood drops from Rockingham, and if your objection is that I omitted the word "assumption," I would be more than happy to include it.
MR. CLARKE: I think that misstates the evidence also, that they came in contact with one another.
MR. NEUFELD: Assumes for purposes of the hypothetical I believe there is insufficient evidence, your Honor, given the way this evidence was poorly processed by Fung and Mazzola. And by the way, we intend to, you know, call other witnesses as well on our case that we're allowed to suggest the we're allowed to suggest the hypothesis here there was cross-contamination just to show if there was cross-contamination, we would get this result because it's been suggested repeatedly by the People in their direct examination that degradation can never change a genotype or DNA type and we want to show through this witness that in fact degradation in conjunction with cross-contamination--
THE COURT: I understand what you are trying to do. The problem is, you have to have some good faith basis to offer the condition in the hypothetical.
MR. CLARKE: The evidence I think to this point is absolutely contrary to that fact about swatches--different samples getting mixed up or in contact with one another, and that's the major problem with this hypothetical.
MR. NEUFELD: Your Honor, the evidence so far is that the Bundy drops and the Rockingham drops were processed by Fung and Mazzola at the same time in the same room both on the evening of the 13th and again on the morning of the 14th. Moreover, there is testimony subject to connection, which you'll hear from Mr. Yamauchi, that actually the serology process of all the Bundy blood drops occurred at the same time as Mr. Simpson's reference sample, and that's going to be the next part of this hypothetical. So we have a good faith basis for every single question.
MS. CLARK: Could counsel keep his voice down?
THE COURT: Mr. Neufeld, I've asked you to keep your voice down now about 18 times.
MR. CLARKE: I think the problem is, there has not been and never will be a foundation that swatches were mixed up, came into contact with one another in this case, and the evidence is to the contrary. At the point that various items were processed, the testimony is clear at this point they were done one at a time and there's no basis to conclude, even for purposes of a hypothetical, that in fact the type of mixing up or contact of samples that Mr. Neufeld has just described has any basis in fact whatsoever. In other words, the problem is, the hypothetical is irrelevant, extremely misleading.
MR. NEUFELD: Well, your Honor, we take the position--
THE COURT: Objection overruled.
(The following proceedings were held in open court:)
MR. NEUFELD: Dr. Cotton, now, just again, because we had a little bit of a break, assuming again that the drops at Bundy were not deposited by Mr. Simpson, but were deposited by someone else, and assume that in the process of collection, processing and handling and packaging of those drops that the stains became so degraded as to lose their DNA content, to some extent, as it would look like here on item 56. I believe that also happened in your laboratory with respect to item 42, didn't it? That was the--from the pool of blood near Mrs. Nicole Simpson--Nicole Brown Simpson's body? Did you see that same phenomenon?
MR. CLARKE: Objection. No foundation.
THE COURT: Overruled. Do you recall that?
DR. COTTON: No. I'm sorry, I don't.
MR. NEUFELD: Don't you recall that you didn't even see a control dot on item 42?
MR. CLARKE: Same objection, your Honor.
THE COURT: Sustained.
MR. NEUFELD: Well, put aside item 42 then, okay? I just would like you to make this assumption, that that degree of degradation occurred so that the items actually lost that DNA content.
DR. COTTON: Right. I understand.
MR. NEUFELD: Okay. Now, even when that happens--
MR. CLARKE: I'm sorry, your Honor. Objection. No foundation. Actually misstates the evidence.
THE COURT: Rephrase the question.
MR. NEUFELD: I'm asking you to assume for the purpose of this hypothetical that the items, the swatches taken from the Bundy blood drops became so degraded as to lose all recognizable DNA. Okay?
DR. COTTON: Yes.
MR. NEUFELD: Thank you. And I'm asking you to assume that at a later point in time, at the Los Angeles Police Department laboratory, they came into contact inadvertently with swatches from Rockingham that had Mr. Simpson's blood on it and that had more DNA in them. Okay?
DR. COTTON: Yes.
MR. NEUFELD: I'm asking you to assume that they also came into contact with Mr. Simpson's reference sample, meaning the vial of fresh blood. All right? Just assume those three premises.
MR. CLARKE: Excuse me, your Honor. Objection. Assumes facts not in evidence, no foundation.
MR. NEUFELD: Your Honor, subject--
THE COURT: Sustained. As to that additional item, that's more than we discussed at sidebar. Sustained.
MR. NEUFELD: Okay. Fine. Limit the hypothetical then to the Bundy swatches coming into contact with the Rockingham swatches. All right?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Now, given those assumptions, is it possible scientifically that the--when they come into contact with Rockingham swatches, that they can be cross-contamination from Rockingham swatches to the Bundy swatches? Is that scientifically possible?
DR. COTTON: Are you asking me if it's scientifically possible or does the state of the DNA in this case support that?
MR. NEUFELD: I'm asking you whether it's scientifically possible, Dr. Cotton.
DR. COTTON: Certainly I suppose it would be scientifically possible for a very small amount of material to be transferred from one swatch to another.
MR. NEUFELD: Okay. Now, Dr. Cotton, furthermore, we're talking about--oh, let me back up again. And if some of the material from the Rockingham swatches--
THE COURT: Excuse me. Mr. Neufeld, forgive me. Is--the autorads that are on top of the monitor here, are those evidence?
MR. NEUFELD: Yes.
THE COURT: Okay. Just don't want you to melt them there. Proceed.
MR. NEUFELD: If some of the blood from the Rockingham swatches that represent Mr. Simpson's blood came in contact with the swatches from Bundy which were degraded, so degraded as to not have any more DNA recognizable, given my hypothesis, my hypothetical--excuse me--under those facts and circumstances, Dr. Cotton, is it possible that the contaminated sample, contaminated by Mr. Simpson's blood is what you would see if you did a DNA test?
MR. CLARKE: Objection. Assumes facts not in evidence. Misstates the evidence.
THE COURT: Overruled.
DR. COTTON: You'd have to ask me what kind of DNA test before I could answer you.
MR. NEUFELD: Okay. Well, in the first instance, let me ask you about item 52. Item 52 was a blood drop from Bundy; is that right?
DR. COTTON: Yes.
MR. NEUFELD: And I think you said that based on your own experience in the laboratory, item 52 appears to have very little DNA in the lane; isn't that right?
DR. COTTON: Yes.
MR. NEUFELD: And, in fact, you mentioned that there is a method that Cellmark has at its disposal to estimate the amount of human DNA in a sample; isn't that right?
DR. COTTON: Yes.
MR. NEUFELD: And what is that called, Dr. Cotton?
DR. COTTON: It's referred to as a slot blot, which is just a way to use a probe that's human specific on a small part of the sample and see how much signal you get and compare that to a whole series of controls of known amounts, and you can make an estimation from that as about how much human DNA that you have. And it has some limitations, but it's very useful.
MR. NEUFELD: All right. And did you in fact do a slot blot in this case on item 52?
DR. COTTON: Yes, I believe we did.
MR. NEUFELD: And did that slot blot produce a result giving you an estimate as to approximately how much DNA was present in the entire sample?
DR. COTTON: I'd have to go into the records to tell you.
MR. NEUFELD: Please do.
DR. COTTON: Okay. For this, I'm going to get out the original records since those will be better for me to be looking at.
MR. NEUFELD: Okay.
(Brief pause.)
MR. NEUFELD: While you're looking, Dr. Cotton, I'm just going to--with the Court's permission--replace the exhibit that's on the elmo with item 257-b, which reflects item 52.
THE COURT: People's 257-b.
MR. NEUFELD: People's--
THE COURT: Item 52.
MR. NEUFELD: People's 257-b--
THE COURT: Item 52.
MR. NEUFELD: --which reflects item 52. Thank you, your Honor.
(Brief pause.)
THE COURT: All right. Dr. Cotton, do you have the slot blot?
DR. COTTON: I have it.
MR. NEUFELD: You have looked at it?
DR. COTTON: I've looked at it, and if you can ask the question again so--
MR. NEUFELD: Okay. Based on your review of the slot blot, is there an estimate as to how much DNA was present at least in the sample that you did the slot blot on?
DR. COTTON: From the slot blot, the amount of DNA appears to be about 25 nanograms altogether. However, the slot blot is a separate extraction from the DNA that was extracted that goes on the autorad. There is no slot blot for the DNA that was loaded on the agarose gel, which is what you're seeing on the autorad. The only estimation of that amount of DNA would come from the yield gel or looking at the film itself and making an estimation.
MR. NEUFELD: Well--okay. Let's just back up a second. The yield gel simply tells you how much DNA is present. It doesn't tell you whether or not it's bacterial DNA or human DNA; isn't that right?
DR. COTTON: That's absolutely right.
MR. NEUFELD: And you're saying that this slot blot does not represent 10 percent of the entire sample you received minus that 10 percent cut that's saved?
DR. COTTON: That's what I'm telling you.
MR. NEUFELD: All right. What percentage of the entire sample is represented in the slot blot approximately?
DR. COTTON: About 10 percent.
MR. NEUFELD: Of the entire sample?
DR. COTTON: Well, let me lay it out--
MR. NEUFELD: Please.
DR. COTTON: --and so that we won't get confused. 10 percent of the sample was appro--and this is an approximation because you're cutting from, you know, an irregularly shaped thing. 10 percent of the sample was used for the PCR test. The slot blot was done for that 10 per--a DNA extraction was done from that 10 percent. Of that DNA--for the PCR. And of that DNA extraction, 10 percent of it would have been loaded on the slot blot. So that all we can really say in response to your question is, of the DNA that was extracted for PCR, approximately 25 nanograms would have been available. That is maybe approximately 10 percent of the entire sample.
MR. NEUFELD: All right. Does--would you agree that the banding pattern--I'm sorry. Withdrawn. You said a moment ago that one way to estimate how much DNA is present in the sample is to look at the autorads themselves; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree that there is significantly less DNA present in lane 52 than in any of the reference samples for instance?
DR. COTTON: Yes.
MR. NEUFELD: And there's significantly less DNA present in 52 than there is in item 12?
DR. COTTON: Yes.
MR. NEUFELD: And what is your target when you are loading lanes to do RFLP typing?
DR. COTTON: We don't have a specific target, but generally we will not want to go below 25 nanograms.
MR. NEUFELD: Well, does your protocol in fact say that you should have at least 50 nanograms?
DR. COTTON: No, I don't believe it does.
MR. NEUFELD: Well, does your protocol say with respect to the question of how much DNA one can get a result from, say that 15 nanograms of DNA may give an RFLP banding pattern? Does it say that?
DR. COTTON: I don't have that huge protocol memorized. Uh, if that is a copy of it and you're reading from it, then I will agree with you. But--
MR. NEUFELD: No. No. If you'd like, I can show it to you.
DR. COTTON: Okay. That would be good.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
DR. COTTON: Yes. 50 nan--it says 50 nanograms may give an RFLP result.
MR. NEUFELD: But what you're saying is that based on your experience, that sometimes you can even get an RFLP result from as little as 25 nanograms?
DR. COTTON: Yes. Actually you could probably even go slightly lower than that, but it depends on the quality of the DNA.
MR. NEUFELD: Okay. And would you agree that, as evidenced by the banding patterns here, you are close to that--that minimal amount that you're talking about?
DR. COTTON: For item 52, yes, we're very close.
MR. NEUFELD: Okay. Which would mean that somewhere in that 25 nanogram range more or less?
DR. COTTON: Yes. That would be my estimation.
MR. NEUFELD: Okay. And would you agree that oh, a microliter of blood has as little as 20 to 40 nanograms of DNA in it if it's in good shape?
DR. COTTON: To tell you the truth, I don't actually know what the correct figure for that would be.
MR. NEUFELD: Let me just show you something just to see if it refreshes your recollection.
THE COURT: What page, counsel?
MR. NEUFELD: Page 28.
MR. CLARKE: Actually, your Honor, I have an objection as to foundation at this point.
THE COURT: Sustained. Ask the question, counsel.
MR. NEUFELD: All right.
THE COURT: Go ahead, stay there. Ask the question.
MR. NEUFELD: Well, I was--
THE COURT: Dr. Cotton, are you familiar with the NRC report?
MR. NEUFELD: Your Honor, I would do a whole series of questions if you'd like, and I'll do that now.
MR. NEUFELD: Sorry. Dr. Cotton, what is the national academy of science?
DR. COTTON: It's an organization of scientists who have done very important work in their respective fields and been elected to become members of the national academy of science.
MR. NEUFELD: Would it be fair to say that it basically includes the most distinguished members of the scientific community in this country?
DR. COTTON: Well, I don't know that it includes all of the most distinguished, but it includes a good many of them.
MR. NEUFELD: All right. And in 1990, did the national academy of science commission a study on the reliability of forensic DNA profile?
DR. COTTON: Yes, they did.
MR. NEUFELD: And did that study--to do that study, did the national academy of science appoint a committee to do the investigation?
DR. COTTON: Yes. I don't--
MR. CLARKE: Excuse me. Objection as to relevance at this point.
THE COURT: A few more questions, counsel. I'll overrule it subject to later motion, but let's get to the chase here.
MR. NEUFELD: And would you agree that some of the more esteem members of the forensic science community and genetics community participated in this committee that eventually drafted a book?
DR. COTTON: I'll agree with you that some of the members were very knowledgeable, but you may have overstated their standing somewhat.
MR. NEUFELD: Okay. In fact, you personally testified before this committee, did you not, before this report was prepared?
DR. COTTON: Testimony wouldn't be my choice of words. I didn't take any kind of oath or anything. I just gave a short talk.
MR. NEUFELD: And the participants asked you questions as well?
DR. COTTON: Uh, yes, they did.
MR. NEUFELD: Okay. And to the best of your knowledge, this report was funded by in part the Federal Bureau of Investigation?
MR. CLARKE: Excuse me, your Honor. Objection. Hearsay and relevance at this point.
THE COURT: Overruled.
DR. COTTON: Uh, I believe that was where some of the funding came from and some came from other sources.
MR. NEUFELD: Such as the national institute of health and other government agencies?
DR. COTTON: Yes. Yes.
MR. NEUFELD: And eventually in April of 1992, the national academy of science press published their final report; isn't that right?
DR. COTTON: That's right.
MR. NEUFELD: And no doubt, you have carefully--I think you even said on direct examination that you have read this report many times?
DR. COTTON: I have.
MR. NEUFELD: And whether or not you agree with all of its findings, Dr. Cotton, would it be fair to say that you have considered all that is written in this book before reaching your own opinions?
MR. CLARKE: Well, excuse me. Objection. Vague.
THE COURT: Overbroad. Sustained. Rephrase the question. Let's narrow it down.
MR. NEUFELD: Fine.
MR. NEUFELD: Have you considered the conclusions and observations in this book as part of the process of reaching your own opinions about the reliability of forensic DNA profiling?
MR. CLARKE: Same objection.
THE COURT: Sustained.
MR. NEUFELD: The book--the book has a number of chapters; does it not, Dr. Cotton?
DR. COTTON: Yes, it does.
MR. NEUFELD: Okay. And have you considered the chapter entitled "DNA typing technical considerations" as part of the process in reaching your own opinions and conclusions about forensic DNA profiling?
MR. CLARKE: Same objection, your Honor.
THE COURT: Overruled.
DR. COTTON: Do you mean have I thought about what they said?
MR. NEUFELD: Yes.
DR. COTTON: Certainly I thought about it.
MR. NEUFELD: And now I'm going to ask you exactly the same question with respect to chapter 3, which is "DNA typing statistical basis for interpretation." have you thought about what they said as well?
DR. COTTON: Yes.
MR. NEUFELD: And have you thought about what they said in chapter 4 entitled "ensuring high standards"?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Now, in that chapter 2, I would like you--what you said you did think about and consider in reaching your opinion and conclusions--
MR. CLARKE: Excuse me. Objection. Misstates the evidence.
MR. NEUFELD: No, it doesn't.
THE COURT: Sustained. It does. Rephrase the question.
MR. NEUFELD: With respect to chapter 2 that you acknowledged the thinking about and considering, I would like to ask you about a particular table, table 1.1.
MR. CLARKE: Sorry, your Honor. Same objection.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Is there still a foundation?
THE COURT: Yes.
(Discussion held off the record between Defense counsel.)
THE COURT: There has to be a fact of reliance here, counsel.
MR. NEUFELD: Dr. Cotton, and you said a moment ago that you thought about the contents of each of those specific chapters which I referred to. And did you consider the contents of those particular chapters which I just referred to in formulating or coming to your own conclusions and opinions whether or not you accept or reject the contents of those chapters?
MR. CLARKE: Same objection. Also vague.
THE COURT: Sustained.
MR. NEUFELD: Well, Dr. Cotton, did you consider the contents of chapter 2 in formulating your own opinions--
MR. NEUFELD: One second.
(Brief pause.)
MR. NEUFELD: --in formulating your own opinions regarding the technical considerations for DNA typing?
MR. CLARKE: Same objection, your Honor.
THE COURT: Overruled.
DR. COTTON: I read that chapter. I thought about what it had to say. I don't agree with all the things that are in the chapter, but I certainly thought about them as I read them.
MR. NEUFELD: And when you thought about them as you read them, even if you didn't agree with--by the way, are there some things in the chapter that you do agree with?
DR. COTTON: In--that would be applied to the whole book. There are things that I agree with and there are things that I don't agree with.
MR. NEUFELD: But in helping you to reach your conclusions and your current opinions, did you at least consider the positions taken in those three chapters that we just described?
MR. CLARKE: Same objection, your Honor.
THE COURT: Sustained.
DR. COTTON: I don't think--
THE COURT: Wait. Sustained.
DR. COTTON: Oh.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: All right. We'll go through it chapter by chapter again, your Honor.
MR. NEUFELD: Have you considered--
THE COURT: Counsel, I've indicated to you as clearly as I could, the issue is reliance in forming an opinion. The fact that you read something doesn't necessarily mean that you can be cross-examined on it. Has to be the basis of an opinion. Proceed.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: In forming your opinion that you've given to this jury in this case, did you consider the substance of what appears in chapter 2, "DNA typing technical considerations"?
MR. CLARKE: Same objection.
THE COURT: Overruled. You can answer that yes or no.
DR. COTTON: No.
MR. NEUFELD: Didn't consider it at all?
DR. COTTON: If you're asking me, did I consider that chapter in forming my opinions that I've presented regarding this evidence, I have to say I did not.
MR. NEUFELD: Well, when I say that, what I--let me clarify that. Did you consider this chapter in formulating your opinions on the technical considerations of DNA typing in general, which of course is one of the things that you--well, let me back up. Are the technical considerations of DNA typing one factor that you consider when you assess evidence in a case?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
DR. COTTON: Of course.
MR. NEUFELD: And on a foundation or threshold level, Dr. Cotton, in coming to your own conclusions and understanding about the various technical considerations involved in forensic DNA profiling, did you consider what the national academy of science report said in this book, "DNA technology and forensic science"?
MR. CLARKE: Same objection, your Honor. And asked and answered.
THE COURT: Overruled. Yes or no?
DR. COTTON: No.
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment, your Honor.
THE COURT: Certainly.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. NEUFELD: Sorry, your Honor. May we please have a sidebar? Might save some time.
THE COURT: With the reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at sidebar. Mr. Neufeld.
MR. NEUFELD: My understanding--I am not a California lawyer, your Honor--is that it's not necessary that I demonstrate she relied on this treatise at all. It is sufficient to show that she either referred to it, considered or relied upon it, upon such publication at arriving at her opinions. So I thought that my initial questions--
THE COURT: Keep your voice down, counsel.
MR. NEUFELD: My questions when she answered initially on the issue of considered was adequate foundation. I didn't think I had to ask her whether she relied on it. In fact, it's sufficient even if she rejected large portions of it. The fact--one thing that's interesting here, your Honor, on direct examination, it was brought out by Mr. Clarke that she's read this thing many, many, many times herself. That was her testimony. Clearly if she's read it many, many, many times, she did consider it in arriving at opinions and decided those things. She's attempting--and which she remembers. And what bothers me now is that there's no question that this is the primary treatise by government agencies on this subject right now.
THE COURT: Used to be.
MR. NEUFELD: Well. You're saying used to be because there's not been an NRC committee meeting. But the scientific community hasn't even reached a conclusion yet, hasn't written a report. To the extent that she wants to say she doesn't agree with it, I have no problem with it. But to allow this witness to avoid cross-examination on the NRC report frankly is preventing the jury from hearing all the facts that are of concern to them, especially in light of your Honor's--especially in light of the fact that this witness said that she read this report many times on direct examination, which she said on cross-examination she read it and she's considered it in reaching her understanding of these various subjects, although--
THE COURT: I don't think that's quite what she said. Mr. Clarke.
MR. CLARKE: Yes. My memory having been refreshed--and I'm not sure Mr. Neufeld was present--is, this very issue was litigated by this Court previously by formal motion. And evidence code 720, section 721 says counsel must rely--case law has made it clear the witness must have relied upon it for purposes of formation of the opinion. So she may have read it a hundred times. I may have read a book about being a lawyer a hundred times. That doesn't mean that it's something I rely upon, or as the case is here, the witness relies upon it in rendering an opinion. And until that foundation is present, the case law clearly calls this type of material hearsay.
THE COURT: All right. The objection at this point is sustained.
MR. NEUFELD: Your Honor, just for guidance--
THE COURT: California law says they have to have relied upon this in forming their opinion. That's what it says.
(The following proceedings were held in open court in the presence of the jury:)
THE COURT: All right. Thank you, counsel.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Well, Dr. Cotton, just with respect to--I sort of forgot where I was, but--
THE COURT: I thought you were trying to establish the minimum thresholds for RFLP testing.
MR. NEUFELD: Okay. Let me just ask you whether or not looking at a particular chart would refresh your recollection as to how many nanograms of DNA is in a milliliter of blood.
MR. NEUFELD: May I approach the witness just for the purpose of refreshing her recollection?
THE COURT: Do you recall having seen a chart like that in the nature of--
DR. COTTON: Yes, I do.
THE COURT: All right. Why don't you go ahead and show it to her.
MR. NEUFELD: Thank you.
THE COURT: It's on page 28?
MR. NEUFELD: Yes.
MR. CLARKE: I'm sorry. I didn't hear the page, your Honor.
THE COURT: 28.
DR. COTTON: The--
THE COURT: All right. The only issue is, does that refresh your recollection as to these items, doctor?
DR. COTTON: Yes.
THE COURT: All right. Mr. Neufeld.
DR. COTTON: Can I get out my copy so I can keep looking at it?
MR. NEUFELD: Sure. Go right ahead.
(Discussion held off the record between Defense counsel.)
DR. COTTON: What page is the chart on again?
THE COURT: 28.
MR. NEUFELD: 28.
THE COURT: 28.
(Brief pause.)
DR. COTTON: I'm ready.
MR. NEUFELD: Is that your own copy of the book entitled "DNA technology in forensic science"?
DR. COTTON: Yeah. It looks just like yours.
MR. NEUFELD: Okay. And would it be fair to say--I think you said in fact that there are certain portions of this book that you agree with and there are certain portions of the book you disagree with.
DR. COTTON: That's right.
MR. NEUFELD: And as to the portions of the book you agree with, would it be fair to say that you have considered and relied upon those portions at least in helping to develop your own opinions on forensic DNA profiling?
DR. COTTON: The portions I agree with, yes.
MR. NEUFELD: Okay. And now--so if I bring up a certain portion, I'm going to ask you at a certain point whether it's something you agree with or disagree with so we can eliminate it immediately. All right, Dr. Cotton?
DR. COTTON: That would be fine.
MR. NEUFELD: Good. All right. According to--by the way, do you agree with the numbers reflected in table 1-1?
DR. COTTON: They seem to fit with what seems to be about right, yeah.
MR. NEUFELD: Okay. And would it be correct then, Dr. Cotton, in concluding there are approximately 20,000 to 40,000 nanograms of DNA in a milliliter of blood?
DR. COTTON: This--I don't know the answer to that question. This chart is talking about a stain of a square millimeter, and how that would relate to a given volume, I'm not sure.
MR. NEUFELD: No. I'm not looking at the stain portions of the table, Dr. Cotton. I'm asking you about the very first line, which simply says, "blood 20,000 to 40,000 nanograms per milliliter." do you see that?
DR. COTTON: Oh, yes, I do.
MR. NEUFELD: Okay. So put "stains" out of your mind for a second, all right, and let's just focus on liquid blood. Is that a correct statement more or less; that a milliliter of liquid blood has approximately 20,000 to 40,000 nanograms of DNA in it?
MR. CLARKE: Excuse me, your Honor. Objection at this point. It's hearsay.
THE COURT: Overruled.
DR. COTTON: Well, that's what's listed in the chart and that seems to be--let me just think about it for one second.
(Brief pause.)
DR. COTTON: That's probably the high end. I would maybe I would be much more willing to agree with the 20,000. The 40,000 seems like a lot.
MR. NEUFELD: Okay. So let's assume that it's 20,000. Now, if that's how much is in a milliliter, now, a microliter is what in relation to a milliliter, Dr. Cotton?
DR. COTTON: One one-thousandths.
MR. NEUFELD: And a--let me just show you an exhibit which is Defendant's exhibit 1132. And this is already in evidence. Dr. Cotton, I have just one question from this board. If there is 20 nanograms approximately in a microliter, would you agree that a microliter of blood is the approximate size of this item that I'm pointing to (Indicating)? And if you can't see it well, please come down off the stand.
(the witness complies.)
DR. COTTON: A microliter is a volume, and that looks like the head of a pin.
MR. NEUFELD: Have you ever heard the expression, Dr. Cotton, that a microliter of blood is approximately the same size as the head of a pin?
DR. COTTON: Well, it depends on what kind of pin you have.
MR. NEUFELD: Okay. Granted. Have you ever heard that expression anyway?
DR. COTTON: Uh, I don't have any idea.
MR. NEUFELD: Would you agree that in layman's terms, that a microliter of blood is a minuscule amount?
DR. COTTON: I certainly would.
MR. NEUFELD: And I think you said that it was your belief, Dr. Cotton, that there was approximately 25 nanograms of DNA in the lane that produced the autorad for item 52; is that correct?
DR. COTTON: Yes. I--20--somewhere--I said 25 and I--that this is just a very rough estimate on my part, but certainly it's going to be between 25 and 50 or 60.
MR. NEUFELD: Well--
DR. COTTON: It's not going to be--it's certainly not more than that.
MR. NEUFELD: Well, a little bit earlier, did you say however that it was your estimate that it was about 25 nanograms?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Now, if 20 nanograms of DNA could appear in a minuscule amount of blood reflected in--
THE COURT: 1132.
MR. NEUFELD: Thank you very much, your Honor.
THE COURT: Save you the trip.
MR. NEUFELD: --in Defendant's 1132, if the Bundy drops, which in my hypothetical were completely degraded, were then subjected to that minuscule amount of blood or slightly more, would that be enough blood to produce 25 nanograms of DNA?
DR. COTTON: If it was liquid.
MR. NEUFELD: It would be enough, right?
DR. COTTON: Yes.
MR. NEUFELD: And when you say "liquid," it could--you mean wet?
DR. COTTON: Yes.
MR. NEUFELD: All right. Thank you. And--
MR. CLARKE: Well, excuse me. Objection, your Honor.
THE COURT: Sustained.
MR. NEUFELD: I'm sorry for the remark.
THE COURT: The jury is to disregard "thank you's" and "no, thank you's."
MR. NEUFELD: I apologize for it.
THE COURT: It's all right. It's all right. I'm sure they know you didn't mean it in any bad way. But it is question and answer. Let's proceed.
MR. NEUFELD: Now, in my hypothetical then, Dr. Cotton, if the Bundy--assuming that the Bundy drops did not come from Mr. Simpson, but were completely degraded in the process of collection and handling and then were brought into contact with a minuscule amount of blood such as reflected on Defendant's exhibit which is in front of you--1132? 1132--it could produce the banding pattern that you see in item 52? Isn't that correct, in the hypothetical?
MR. CLARKE: Objection. Objection. Improper hypothetical.
THE COURT: Overruled.
DR. COTTON: In the hypothetical and with my addition that it be about a microliter of liquid blood, the answer is yes.
MR. NEUFELD: Thank you. All right. In fact, Dr. Cotton, isn't it true that in your very laboratory, in the CACLD proficiency test that you described on direct examination, on one occasion, you had a very degraded sample brought into contact with another sample of DNA and you only saw the banding pattern of the second sample of DNA? Is that true?
DR. COTTON: Are you referring to the first CACLD?
MR. NEUFELD: I am.
DR. COTTON: The way you stated it isn't exactly correct.
MR. NEUFELD: All right. Let me rephrase the question, Dr. Cotton. Isn't it a fact that in that CACLD experiment--I'm sorry--proficiency test where one sample cross-contaminated another sample, you got a false positive result?
DR. COTTON: Yes. But that cross-contamination was by directly adding DNA inadvertently to the wrong tube. It didn't have anything to do with the starting samples.
MR. NEUFELD: Well, in the--when it was added to the wrong tube, it was added to a tube where the DNA had totally degraded; is that correct?
DR. COTTON: I don't actually know that. We don't know if that DNA was degraded or whether there simply just wasn't enough to see just below the level of detection.
MR. NEUFELD: Okay. Well, let's assume either hypothetical. Either there wasn't enough DNA left in that sample to detect the pattern or there wasn't enough DNA left in that sample due to degradation to detect the pattern. The false positive was created, was it not, by then inadvertently or incorrectly mixing with that DNA from a second source?
DR. COTTON: Yes.
MR. NEUFELD: And by doing so, your laboratory generated what we just referred to as a false positive; isn't that right?
DR. COTTON: Yes, it is.
MR. NEUFELD: And in the example that I just gave you about what happened in your own laboratory, Dr. Cotton, had that not been a proficiency test--well, I'm sorry. Let me step back a second. The way you learned that Cellmark had in fact created a false positive is because the people from the California Association of Crime Laboratory Directors that ran the test wrote to you and told you that you got a false positive; isn't that right?
DR. COTTON: That's right.
MR. NEUFELD: In other words, you did not know you had a false positive when you did the testing yourselves?
DR. COTTON: That's right.
MR. NEUFELD: And had it not been a proficiency test, Dr. Cotton, you would not have found out that you had gotten a false positive; isn't that correct?
MR. CLARKE: Objection. Calls for speculation. Irrelevant.
THE COURT: Sustained. Speculation.
MR. NEUFELD: If instead of it being a proficiency test, Dr. Cotton, a false positive result would have falsely implicated somebody, wouldn't it?
MR. CLARKE: Same objection.
THE COURT: Sustained. It's argumentative as well.
MR. NEUFELD: Now, given the example that I gave you about the Bundy drops being degraded and then coming into contact with blood from the Rockingham samples--oh, by the way, one other matter on that. There has been testimony that the reference sample of Mr. Simpson was also in the evidence processing room at the same time that these Bundy stains and Rockingham stains were there. I want you to--
MR. CLARKE: Excuse me. Objection. Misstates the evidence. Also improper as part of the hypothetical.
THE COURT: Overruled.
MR. NEUFELD: Okay. If in fact that reference sample of fresh blood from Mr. Simpson--I'm sorry. By the way, one other fact. There's also been testimony that the reference samples of Nicole Brown Simpson and the reference sample of Ronald Goldman were not in the evidence processing room on June 14th on that same day. If blood from the fresh reference sample of Mr. Simpson came into contact with those swatches from the Bundy drops and given my hypothetical they were completely degraded, could that cross-contamination also create the result that you saw in item 52?
MR. CLARKE: Objection. Again, assumes facts not in evidence.
THE COURT: Overruled.
DR. COTTON: Of course it could.
MR. NEUFELD: Okay. Now, and if that type of degradation and cross-contamination occurred, Dr. Cotton, your laboratory would not be able to uncover it given your testing protocol; isn't that right?
DR. COTTON: We wouldn't detect it. Of course not.
MR. NEUFELD: In fact, I believe you said on direct examination that your controls are designed to make sure or to minimize the likelihood of cross-contamination inside your own laboratory; isn't that right?
DR. COTTON: That's right.
MR. NEUFELD: But you cannot be held accountable for what types of cross-contamination occurred on a sample before it reaches your laboratory; isn't that right?
DR. COTTON: That's right. That's of course out of our control.
MR. NEUFELD: And even if this sample that you got was divided up when it went to you and given not just to you, Cellmark, but given to two or three other laboratories, it wouldn't make a difference in their ability to uncover this earlier cross-contamination, would it, given my hypothetical?
MR. CLARKE: Objection. Vague. Also assumes facts not in evidence.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Would it be fair to say, Dr. Cotton, that since your laboratory's protocol would not be able to uncover the fact that the samples had been degraded, then cross-contaminated, that this would also be true, given your knowledge of how other laboratories functioned, it would also be true if the sample was divided in half and half was sent to you and half was sent to a third laboratory?
THE COURT: Hold on.
(Brief pause.)
UNIDENTIFIED PERSON: I'm sorry. I'm sorry.
THE COURT: Proceed.
MR. CLARKE: Same objection. Same grounds.
THE COURT: Sustained.
MR. NEUFELD: And would you agree, Dr. Cotton--it was brought out on direct examination that when some of these samples arrived at your laboratory, two Defense experts, Dr. Edward Blake and Dr. Henry Lee, were present at the laboratory; is that right?
DR. COTTON: That's right. They weren't present when the samples arrived, but they were present when the samples were opened up and--and the cuttings were made.
MR. NEUFELD: And even if Dr. Edward Blake stood and remained at your laboratory during the entire process of testing in this case, had the type of cross-contamination that I described in my hypothetical actually occurred, isn't it a fact that he would not have been able to recognize it either?
MR. CLARKE: Objection. Irrelevant.
THE COURT: Sustained. Also calls for speculation as to what Dr. Blake can recognize.
MR. NEUFELD: Well, based on what you said, Dr. Cotton, isn't it true that there is no control in your laboratory that you use that would be able to discover or disclose that the original Bundy drops had been contaminated with Mr. Simpson's blood? Isn't that a fact?
DR. COTTON: Yes. Of course.
MR. NEUFELD: And so--
THE COURT: That's the third time we've asked that question.
MR. NEUFELD: And if you used--I believe on your chart, you said that for an item 52 you looked at five RFLPs; is that right?
DR. COTTON: Yes.
MR. NEUFELD: Well, you wouldn't be able to discover that type of cross-contamination if you used 15 or 20 RFLPs, would you?
DR. COTTON: Of course not.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment.
(Brief pause.)
MR. NEUFELD: Your Honor, we can actually get rid of this. Can I just--
THE COURT: Mr. Scheck, which board is this?
MR. SCHECK: This is 259.
THE COURT: Thank you.
MR. NEUFELD: May I approach the board?
THE COURT: Certainly.
MR. NEUFELD: And, Dr. Cotton, if you can't see it, please step down a little bit. But given my hypothetical, Dr. Cotton, about degradation, the original Bundy samples and then cross-contamination either through the Rockingham swatches, which were Mr. Simpson's blood, or from the vial of fresh blood belonging to Mr. Simpson, given that hypothetical, if that happened, you would still get the same kind of frequency that you got for item 47; isn't that correct? That wouldn't change the frequencies that you get?
DR. COTTON: It wouldn't change anything.
MR. NEUFELD: And given my hypothetical, even if all that occurred, Dr. Cotton, you'd still get this astronomical frequency that you have here for no. 52, Bundy drop, of 170 million, wouldn't you?
DR. COTTON: Yes.
MR. NEUFELD: And the same would apply to every single one of those Bundy drops; isn't that correct?
DR. COTTON: If your hypothetical is suggesting that each one of those Bundy drops had fit in with your hypothetical and got contaminated in the way you suggested with enough DNA, yes.
MR. NEUFELD: For every single one of the Bundy drops, correct?
DR. COTTON: Of course.
MR. NEUFELD: Thank you. You can have a seat.
(The witness complies.)
(Brief pause.)
MR. NEUFELD: And in fact, Dr. Cotton, there's even less DNA in the Bundy drops, 47, 48, 49 and 50 than there was observed in 52, correct?
DR. COTTON: Yes.
MR. NEUFELD: So it would take even less cross-contaminating DNA to affect the PCR results in those samples than it would take to affect the RFLP result in item 52?
DR. COTTON: Yes.
MR. NEUFELD: In fact, Dr. Cotton, how much DNA do you need to do your PCR test, your DQ-Alpha test?
DR. COTTON: Depending on how degraded the sample is. If the sample's in very good condition, a half a nanogram--it doesn't necessarily have any meaning to anybody, but it's not very much. A half a nanogram will work. If the sample is degraded, then you'll require more, and the more degraded it is, the more DNA you'll require until you reach the point where you can't get a result.
MR. NEUFELD: Well, does the users kit suggest that two nanograms of DNA be used for doing DQ-Alpha typing?
DR. COTTON: Well, that's what they suggest be used, but that's only one amount of the large possibility of amounts that would work.
MR. NEUFELD: And would you agree, Dr. Cotton, that unlike 20 nanograms, which might be the size of a pinhead, that two nanograms is barely, if at all, detectable to the naked eye?
DR. COTTON: I don't know if it's detectable. It's obviously just one 10th of 20.
MR. NEUFELD: Thank you. Sorry.
THE COURT: Nothing to apologize for. Proceed.
MR. NEUFELD: Now, again going back to these numbers that you testified to at the conclusion of the direct examination, Dr. Cotton, I would like to ask you a few questions about what the number is and what the number isn't. Would you agree, Dr. Cotton, that the frequency you put up there--
MR. NEUFELD: One second, your Honor.
(Brief pause.)
MR. NEUFELD: Would you agree, Dr. Cotton, that the numbers you put up, for instance, for item 52 of 1 and 170 million, does not reflect the probability of Mr. Simpson's guilt or innocence?
DR. COTTON: Of course it doesn't.
MR. NEUFELD: And would you agree, Dr. Cotton, that that number is not a probability that someone other than Mr. Simpson is in fact the source of a particular stain?
DR. COTTON: I'm not sure I understand exactly what you're asking me.
MR. NEUFELD: Well, it's not a source probability, is it, Dr. Cotton?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled. Do you understand the question?
DR. COTTON: No. It's just a probability of any other unrelated--it's the probability that another person in a specific racial group would have that same pattern. It's not--doesn't--isn't related to the source of the sample at all.
MR. NEUFELD: And so it wouldn't be a probability that Mr. Simpson was the person who bled at Bundy, right?
DR. COTTON: That's right.
MR. NEUFELD: Okay. And would you agree that the number tells us nothing at all about the probability of false or misleading matches due to errors in the collection or handling of samples?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
DR. COTTON: The number doesn't say anything about the areas that you just mentioned.
MR. NEUFELD: And would you agree, Dr. Cotton, that the number tells--tells us or tells the jury nothing about the probability of false or misleading matches due to evidence tampering?
MR. CLARKE: Same objection.
THE COURT: Overruled.
MR. CLARKE: Also irrelevant.
THE COURT: Overruled.
DR. COTTON: It--it doesn't say anything about anything except the likelihood of another random person having that pattern.
MR. NEUFELD: So if in fact, Dr. Cotton, pursuant to my hypothetical, the matches were due to the combined effects of total degradation followed by cross-contamination with Mr. Simpson's blood, then those numbers would be irrelevant, wouldn't they?
DR. COTTON: They still mean the same thing regardless of your hypothetical. They--I don't know how to answer your question other than that.
MR. NEUFELD: They wouldn't have the same value for the jury--
THE COURT: Wait. Wait. Let her finish answering the question.
MR. NEUFELD: Oh, I'm sorry.
DR. COTTON: They mean what they mean. They don't mean anything else.
MR. NEUFELD: And the number tells us nothing about the probability that the swatches were mixed up at the Los Angeles Police Department as well, does it?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: Well, you've testified I believe that the number, for instance, 1 in--1 in 170 million to 1 in 1.2 billion for the item 52 is your opinion of the estimate about how rare a particular DNA profile is in the population, correct?
DR. COTTON: That's right.
MR. NEUFELD: Now, hypothetically--again, I'd like you to assume I'd like you to just follow one more hypothetical, Dr. Cotton. I'd like you--well, let's--actually - and there's one other frequency I want to ask you about, and it has to do with the frequency you reported for the blood on the socks, and you said that the frequency of that particular pattern I believe ranges anywhere from 1 in 6.8 billion to 1 in 530 billion; is that right?
DR. COTTON: I can look it up, but I'm willing to take your word for it.
MR. NEUFELD: Okay. And that number of 1 in 530 billion is merely your opinion of the estimate of how rare the particular DNA profile is that you observed on the bloodstain from the socks; is that right?
DR. COTTON: The number isn't an opinion. It's just our--it's just the mathematical estimation of the frequency of that banding pattern in a particular racial group.
MR. NEUFELD: Well, it's your estimate.
DR. COTTON: It's our laboratory's estimate.
MR. NEUFELD: Thank you. Hypothetically, if we assume the socks have been examined for the presence of blood twice, once by a criminalist on the day he collected the socks at Mr. Simpson's residence, and then a second time on June 29th by other criminalists in the LAPD laboratory and that examination on both occasions looked for and found no blood--
MR. CLARKE: I'm sorry. Objection, your Honor. Argumentative in its beginning. Also misstates the evidence.
THE COURT: Sustained.
MR. NEUFELD: Well, assume the socks had been examined twice for the presence of blood and that no blood was observed. Now, assume that the socks had been tampered with--
MR. CLARKE: Same objection, your Honor.
THE COURT: Sustained. Sustained.
MR. NEUFELD: May we have a sidebar, please?
THE COURT: Evidence doesn't support that, counsel.
MR. NEUFELD: One second.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Assume that these socks after they were collected had been examined on June 29th for the presence of blood and no blood was readily observed, and assume furthermore that the socks had been tampered with and the blood of Nicole Brown Simpson's--
MR. CLARKE: Same objection, your Honor. I'm sorry.
THE COURT: Sustained.
MR. NEUFELD: Your Honor--
THE COURT: Sustained.
MR. NEUFELD: Your Honor, can I put forth a good faith basis?
THE COURT: Some later time. Not right now. Proceed. We'll take it up at the first break. Proceed to something else.
MR. NEUFELD: Well, would it be fair to say, Dr. Cotton, that there is no test in your laboratory that can answer the question when or how the smear of blood got on the socks?
DR. COTTON: Yes. That's exactly correct.
MR. NEUFELD: And if the blood had been put on the socks at some time subsequent to June 12th or June 13th, you would still give a number of 1 in 530 billion for the presence of the DNA pattern on those socks; is that right?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
DR. COTTON: Yes.
MR. NEUFELD: Now, would you agree that in analyzing DNA typing, there are various factors which can affect the strength or the value of that evidence?
MR. CLARKE: Objection. Vague.
THE COURT: Sustained.
MR. NEUFELD: Well, if the frequency of a matching genotype was 1, okay, in other words, everybody has it, then the evidence wouldn't have much value; isn't that right?
DR. COTTON: It would have zero value.
MR. NEUFELD: Okay. If the frequency was such that it was 1 in 5, it might have a little more value than 1 in 1; isn't that right?
DR. COTTON: It would definitely have more value.
MR. NEUFELD: And if instead, the frequency was 1 in a billion, it would have substantially higher value; isn't that right?
DR. COTTON: Yes.
MR. NEUFELD: Now, would you also agree, however, that as laboratory errors become more likely in a particular laboratory, the value of that DNA evidence decreases?
MR. CLARKE: Objection. Irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Well, would you agree, Dr. Cotton, that as laboratory error is more common in a particular laboratory, the statistical value of the DNA evidence decreases?
THE COURT: That's vague.
MR. CLARKE: Same objection. Same grounds.
MR. NEUFELD: Well--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment, (Discussion held off the record between Defense counsel.)
MR. NEUFELD: I believe you testified, Dr. Cotton, that you know of no scientific test that can tell the age of blood drops; is that right?
DR. COTTON: That's right.
MR. NEUFELD: And so one possible explanation for blood drops is that those blood drops could have been deposited--
MR. NEUFELD: One second.
(Brief pause.)
MR. NEUFELD: One possibility is that those five Bundy drops could be old blood drops?
DR. COTTON: Yes.
MR. NEUFELD: It could have been deposited sometime other than on the night of June 12th?
DR. COTTON: I suppose that's possible.
MR. NEUFELD: Okay. And of course, you have no idea what the probability is for that being true or not. Is that a fair statement?
DR. COTTON: Absolutely none.
MR. NEUFELD: Okay. Put a question mark. And it would be also possible, given the hypothetical, that an error in crime scene collection in packaging could result the same result that you have on your other chart; isn't that right?
MR. CLARKE: Excuse me, your Honor. I'm going to object. It's argumentative at this point.
THE COURT: Sustained. It's vague. What type of mistake are we talking about?
MR. NEUFELD: Would you agree that if cross-contamination occurred when the various samples from Bundy and Rockingham were unpackaged and blood from the Rockingham swatches came into contact with the Bundy swatches, that that could produce the results that you have in your DNA testing?
MR. CLARKE: Same objection.
THE COURT: Well, I'll allow it, but we've asked this question already.
MR. NEUFELD: I understand, but it's all part of the foundation, your Honor.
THE COURT: I understand. I'll allow the case, but I'm indicating to you we've heard this question and answer already.
DR. COTTON: I'll give you the same answer as before. If the amount of contamination was sufficient to produce the DNA results from one sample to the next, then of course that's possible.
MR. NEUFELD: And again, you have no idea what the probability is that that occurred?
MR. CLARKE: Same objection, your Honor.
THE COURT: Overruled.
DR. COTTON: Of course I don't.
MR. NEUFELD: And with respect to cross-contamination, given the hypothetical, had the Bundy swatches come into contact the following day on the 14th with the fresh blood from Mr. Simpson's reference sample, that too could produce the results that you've described a moment ago on your chart; isn't that correct?
MR. CLARKE: Sorry, your Honor. Objection, improper hypothetical.
THE COURT: Sustained. Sustained.
MR. NEUFELD: Well, didn't you say a moment ago that had the Bundy drops--I'm sorry--had the swatches from the Bundy drops come into contact with the fresh blood from Mr. Simpson's reference sample--
THE COURT: Counsel, I sustained the objection to that hypothetical, if you recollect.
MR. NEUFELD: Your Honor, may we approach very, briefly because I think you then changed it when I laid the foundation.
THE COURT: Proceed. Proceed. Sustained.
MR. NEUFELD: There has been testimony in this case, Dr. Cotton, that on the--on June 14th, the Bundy swatches were processed in the same room as the fresh reference blood sample from Mr. O.J. Simpson, and there has been testimony in this case that the reference samples both from Mr. Goldman and from Nicole Brown Simpson were not processed in that room on that day. Now, assuming that while that situation existed, that Mr. Simpson's sample was in the evidence processing unit at the same time that the Bundy swatches were processed and there was contact between the fresh blood of Mr. Simpson and the Bundy swatches, could that also produce the results that you achieved in your DNA typing?
MR. CLARKE: Objection. Improper hypothetical, misstates the evidence and assumes facts not in evidence.
THE COURT: All right. Overruled.
DR. COTTON: Yes.
MR. NEUFELD: So this is cross-contamination. I'm going to just--so I can distinguish these two, I'm going to call the first type of cross-contamination cross-contamination with the Rockingham swatches.
MR. CLARKE: I'm sorry, your Honor. Is this going to be an exhibit marked or--
MR. NEUFELD: Yes.
MR. CLARKE: Then I--
THE COURT: We've got a problem with this one.
MR. CLARKE: That was going to be my objection.
THE COURT: All right. It's becoming argumentative, counsel, not demonstrative.
MR. NEUFELD: Well, one moment.
MR. CLARKE: Well, your Honor, counsel is already writing on it again. I think the Court--
MR. NEUFELD: I'm just writing on--
THE COURT: Ladies and gentlemen of the jury, would you step back in the jury room, please?
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. The jury has withdrawn from the courtroom. Mr. Neufeld, the problem we have is the same problem that caused your objection to the Prosecution's boards. Now, this contains argument. It's not a demonstration of the evidence. It's not exposition of the evidence. It's argument.
MR. NEUFELD: No. I'm sorry. If I said I was going to have it marked, I meant marked for identification. It's only for demonstrative purposes. I'm not going to introduce it into evidence, and I apologize for--if I--
THE COURT: No. That's not the way we do it. If it is an exhibit, something displayed to the jury, it cannot contain argument.
MR. NEUFELD: Your Honor, I was only--
THE COURT: The only thing--the only thing you can do--I understand exactly what it is you're doing here. What you can do is list the possibilities. You can list the locations; Bundy, Rockingham, ECU or ECR. You can list those things. But to then argue contamination, to argue--to put in things that aren't necessarily in evidence, that's argument. We don't know that there's contamination. Do you understand my point?
MR. NEUFELD: Yeah. But, your Honor, the initial questions that I asked the witness were permissible and admissible questions and her answers saying that another explanation would be old blood drops is also admissible. If I simply limit myself on this diagram to writing--
THE COURT: No. The only thing you can do is put, for example, "Bundy, old blood drops, period," without argument.
MR. NEUFELD: Fine.
THE COURT: All right?
MR. NEUFELD: And then on the second one, what I would put is "Rockingham swatches, EPU," and nothing more. And the third one I would do--
THE COURT: As in processing--I thought it was evidence processing room?
MR. NEUFELD: I'm sorry. I'll put "evidence processing room," okay. And the third one would be--
THE COURT: Is there a possibility we could prepare these before we do this too?
MR. NEUFELD: Yes. If I can have two minutes, I'll prepare it, and then we can be heard and I'll save time.
THE COURT: Do it.
MR. CLARKE: Your Honor, in addition to that, I think once the Court sustained its objection, Mr. Neufeld kept writing, which was extremely improper.
THE COURT: We'll get to that.
MR. COCHRAN: There's another issue you said we could take up during the break.
THE COURT: Well, let's--no. Let's spend the two minutes to finish with this thought.
MR. COCHRAN: All right. We're not going to take a break then?
THE COURT: Not until 3:30. Actually 3:15. But the court reporter is sitting here working. So--
(Brief pause.)
THE COURT: Dr. Cotton, if you want to step down and stretch your legs for a moment, be my guest.
DR. COTTON: Thank you very much.
THE COURT: But don't go away.
DR. COTTON: Okay.
(Brief pause.)
THE COURT: Counsel, don't you think "tampering" is an argument rather than--
MR. NEUFELD: All I'm asking is--
THE COURT: --rather than the word "contamination"?
MR. NEUFELD: Well, your Honor, all I'm trying to elicit from this witness is that she cannot give a probability. I'm not even saying there was tampering. I'm simply saying that these--you permitted the question before that this is not a probability concerning whether or not there was tampering. I just want to put on this chart the same statement that she basically already said verbally. That's all it is.
MR. CLARKE: May I see the chart at some point, your Honor?
MR. NEUFELD: Oh, you can take a look at it right now.
MR. SCHECK: Why don't you put it on the--
MR. CLARKE: I would certainly concur with the Court, the word "tampering" is extraordinarily argumentative. And the problem with this whole chart is the fact that there's been no evidence that the type of contamination or contact that the Defense--
THE COURT: Well, counsel, you know that I have to allow hypothetical questions if there is a possibility, a possibility that those facts could be established.
MR. NEUFELD: Your Honor--
THE COURT: But I agree "tampering" is not an appropriate word for this type of exhibit. You can put in "contamination" because contamination can be either benign or malevolent.
MR. NEUFELD: Fine. Then what I would like to do, I would change the word "tampering" to simply "deliberate contamination," which--
(Laughter.)
MR. NEUFELD: Well, no, no, no. The reason--the reason the reason, your Honor, is, I believe that we have--
THE COURT: I admire your hutzpah. "Contamination," counsel. Without--it can be benign, it can be malevolent. We don't know. It could be nonexistent.
MR. NEUFELD: Can I put down "malevolent contamination," use your word? No. No. Quite seriously, your Honor, I think--
THE COURT: And I'm equally serious. You can have "contamination." That's what you get. All right?
MR. NEUFELD: All right. Then what I will do, I will change "tampering" to "other forms of contamination."
THE COURT: "Contamination."
MR. NEUFELD: Okay.
THE COURT: That pretty much covers it.
MR. NEUFELD: Well, I've described two types already. I would just like to be able to say as "other contamination."
THE COURT: Mr. Neufeld, for the fifth time, "contamination." I'll give you some scotch tape and a scissor.
MR. NEUFELD: I can redo this again in one minute.
(Brief pause.)
MR. NEUFELD: Your Honor, also, to save time, what I was going to do--I can do it now--is what I did in the first one, was a question mark. I was going to put in question marks until I got to the "coincidental match," at which point I was going to insert the frequency estimate as given by the witness. I can do it in front of the jury or I can do it now and just have her--
THE COURT: No. If all you're going to do is repeat what's there, that's fine. The question marks are fine.
MR. NEUFELD: I'm sorry?
THE COURT: The question marks are fine.
MR. NEUFELD: Okay.
THE COURT: Let's proceed.
MR. NEUFELD: One moment, your Honor.
(Brief pause.)
MR. NEUFELD: Art is not my forte, your Honor. I'm sorry.
THE COURT: It's the sincerity that counts. Mr. Neufeld. All right.
THE COURT: Let's go.
MR. CLARKE: Could I see it, your Honor?
THE COURT: Sure.
MR. NEUFELD: Let me put it up.
THE COURT: Madam reporter, do you need to take a break? Are you ready to go through to 4:30?
THE COURT REPORTER: Yes, your Honor.
MR. NEUFELD: I'm going to need a break at some point. I can't go through to 4:30. That's all I'm saying.
THE COURT: Well, we might as well take our break now. All right. Let's take 10.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Let's have the jury, 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. Let the record reflect we have now been rejoined by all the members of our jury panel. Ladies and gentlemen, before we proceed any further, if you recollect, at the beginning of the trial, I instructed you that you were to ignore anything that I'm doing up here, any of my expressions. That for example, if I suddenly start to write down something, that doesn't mean that what the witness just said was important. I mean, for all you know, I'm just writing a note to myself to stop at the market and get dog food on the way home. So don't pay any attention to what I'm doing up here. And if I appeared to be annoyed at any time to a question or to an attorney or about that, disregard that, because my opinions, expressions, reactions to things are not evidence, not relevant to your determination in this case. All right. Dr. Cotton, would you resume the witness stand, please. Good afternoon again, doctor. And, Mr. Neufeld, you may continue.
MR. NEUFELD: Thank you.
MR. NEUFELD: Now, Dr. Cotton, please excuse my handwriting--printing.
MR. NEUFELD: First of all, your Honor, if I may, I just want an acknowledgment from the jury that they can at least see it from where they are.
THE COURT: 1492?
JUROR NO. 1492: I can see most of it except the "contamination" part.
(Laughter.)
JUROR NO. 1492: I mean the line part.
THE COURT: All right. Proceed.
MR. NEUFELD: Now, Dr. Cotton, when we left off, you said that, for instance, if the stains at Bundy came from older blood drops, that would still be consistent with the results that you got and the numbers that you generated, correct?
DR. COTTON: That's right.
MR. NEUFELD: And you also said I believe that if in fact while the Bundy swatches were in the evidence processing room and they were cross-contaminated--they were degraded and cross-contaminated with the Rockingham swatches, that also would give you the same result that you have, correct?
DR. COTTON: If you had enough contamination, yes.
MR. NEUFELD: Even if the Bundy drops initially came from someone other than Mr. Simpson?
DR. COTTON: Yes.
MR. NEUFELD: And also, you--well, we didn't get to this before, but we've now done this during the break. If in fact on the morning--on--during the day of the 14th, when the Bundy swatches were in the same evidence processing room with Mr. Simpson's reference sample, fresh reference sample at a time when the reference samples of Mr. Goldman and Miss Nicole Brown Simpson were not there and they came in contact with one another, that too could produce the same results that you have on through DNA typing at Cellmark, correct?
DR. COTTON: Yes.
MR. CLARKE: Excuse me. Objection. Assumes facts not in evidence.
THE COURT: Noted. Overruled.
MR. NEUFELD: I'm sorry. I didn't hear your answer.
DR. COTTON: With the same caveat, assuming there's enough contamination, the answer is yes.
MR. NEUFELD: All right. And again, you also said that obviously if there's a coincidental match, in other words, if somebody else has the same profile as Mr. Simpson, that too would be able to generate the results that you got in the laboratory, correct?
DR. COTTON: Of course.
MR. NEUFELD: And finally, if there was some other type of contamination at another time, another place, either unintentional or deliberate, that too could produce the same results that you have on your DNA testing, correct?
DR. COTTON: Depending on what the contamination was from, it may or may not.
MR. NEUFELD: Okay. Well, assuming that the type of contamination was the same type as described in item 2 here and item 3, but it occurred at a different time and different place and perhaps not so benign, somewhat malevolent--excuse me--nonetheless, would it too generate the same result that you got from the DNA profiling in this case?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Now, you said that you don't know the probability of it being old drops, correct?
MR. CLARKE: Well, objection. Assumes facts not in evidence.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: All right. Assuming that they were old drops, you have no idea what the probability of that occurring is, do you?
MR. CLARKE: Same objection.
THE COURT: She's already been asked and answered that question.
MR. NEUFELD: Would it be fair to say for all of these explanations, the only one that you can give a frequency estimate on is that of a coincidental match?
DR. COTTON: Of course.
MR. NEUFELD: Okay. Now--I'm going to return--
MR. NEUFELD: And I believe next in order would be 1144; is that correct?
THE COURT: 1144.
(Deft's 1144 for id = chart)
MR. NEUFELD: Thank you.
MR. NEUFELD: Now, Dr. Cotton, as an expert, you are often called upon to interpret data; is that right?
DR. COTTON: Yes.
MR. CLARKE: I'm sorry, your Honor. Sorry to interrupt. Are we finished with the exhibit?
MR. NEUFELD: No. I'm going to come right back to the exhibit with these next questions.
THE COURT: All right.
MR. NEUFELD: And sometimes, there may be more than one explanation for a certain piece of data; isn't that right?
DR. COTTON: You mean in terms of the data that we're looking at for any specific sample set?
MR. NEUFELD: Well, no. Just in terms of data as a scien--let me give you an example, a specific example. I believe you said on direct examination--
MR. NEUFELD: Can you put this up?
MR. NEUFELD: Now, putting up on the elmo People's exhibit 257-d, I believe you said on direct examination that there may be more than one explanation, for instance, why some bands are faint and others are darker?
DR. COTTON: Yes.
MR. NEUFELD: However, you said the most common explanation is that there is less--it's because there's less DNA in that lane; is that correct?
DR. COTTON: That's right.
MR. NEUFELD: And then I think you said also that there are other secondary explanations, but they are not as common; is that correct?
DR. COTTON: There are other secondary explanations that could contribute to a band either being darker or lighter than some other band.
MR. NEUFELD: But the most common explanation is because there's less DNA in the lane?
DR. COTTON: Yes.
MR. NEUFELD: Now, likewise, Dr. Cotton, in the various explanations that appear on Defendant's exhibit--which is right next to you at this point--1144, if any of those explanations occur with greater frequency than the 1 in 180 million, would those other explanations deserve greater attention by you?
MR. CLARKE: Objection. Argumentative.
THE COURT: Sustained.
MR. NEUFELD: I can remove the exhibit. Since they'll be more drawing, I'm just going to turn the page.
MR. NEUFELD: I believe you said on direct examination that if you were to open up a cell, a human cell that contained chromosomes and you took out all the DNA out of that single cell, there would be approximately three billion base pairs; is that correct?
DR. COTTON: No. I said six.
MR. NEUFELD: Is that six billion base pairs or six billion bases?
DR. COTTON: Six billion base pairs.
MR. NEUFELD: Okay. And I believe you also said that approximately 99 percent of all of our DNA is identical; is that correct?
DR. COTTON: That's a rough estimation. In fact, it's probably somewhat greater than 99 percent.
MR. NEUFELD: And when you say that--let's say for argument sake, 99 percent is the same in all of us. You mean that the DNA that defines us as a species, as human beings as opposed to a lobster, for instance, is all the same?
DR. COTTON: Yes.
MR. NEUFELD: And so the DNA that decides that we have hands and not claws is going to be the same in all of us who are sitting in this room?
DR. COTTON: We hope so.
THE COURT: Some lobsters don't have claws.
MR. NEUFELD: It's an eastern thing, your Honor. Now, you have Maine.
THE COURT: Well, I just said some lobsters.
MR. NEUFELD: All right. But it's that remaining one percent more or less where there is some variation within the human population, right?
DR. COTTON: Yes.
MR. NEUFELD: And that one percent, according to your estimate, would be approximately 60 million base pairs; is that right?
DR. COTTON: I think that's right, yes.
MR. NEUFELD: And your tests that you do at Cellmark don't compare the 60 million base pairs showing variation within the human population, do they?
DR. COTTON: Of course not.
MR. NEUFELD: When Cellmark does a forensic test, it examines how many different markers within the chromosomes?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
MR. NEUFELD: When one does an RFLP test.
DR. COTTON: We have at our lab the capability of looking at five. Some labs have the capability of looking at more, but that's what we're currently doing.
MR. NEUFELD: And for your PCR markers, you look at how many?
DR. COTTON: Six. Well, we now have the capability of looking at nine. But for this case, we looked at six, and so six would be the relevant answer.
MR. NEUFELD: And so would it be fair to say that there are millions and millions of base pairs showing variation that your tests don't examine?
DR. COTTON: Of course.
MR. NEUFELD: Now, when you say that a particular marker of DNA--that everyone is different for some of these markers, don't you mean that for a particular genetic marker, there is some degree of variation within the population?
DR. COTTON: Well, I didn't say that for any marker, everyone is different. But--and so your second statement is the accurate statement.
MR. NEUFELD: Okay. And would you also agree--I think you said it on direct--that for some of these markers, there's very little variation in fact in the population, whereas, for some of the RFLP markers, there is considerably more?
DR. COTTON: That's right.
MR. NEUFELD: For instance, for some of the individual markers that make up your poly-marker tests, one of them is called LDLR; is that right?
DR. COTTON: Yes.
MR. NEUFELD: And how many different versions are there of the LDLR marker?
DR. COTTON: In that--as that test is able to detect it, two.
MR. NEUFELD: All right. So would you agree that, for instance, there's more diversity in eye color within the population than there is for the LDLR mark that you use for forensic testing?
DR. COTTON: Well, it's probably not a great comparison, but in--the point is correct.
MR. NEUFELD: Well, would you agree also that for--that there's not a single RFLP that you actually utilize that would be unique to any one person? I guess that's redundant. Would be that one person would have and that no one else would have? Is that a fair statement, that's a single RFLP?
DR. COTTON: I don't think that there's--I don't think we actually know the answer to that question.
MR. NEUFELD: Well, for any of the RFLPs that were utilized in this case for which you profiled Mr. Simpson, is there any particular band that you have found that is totally unique in the human population?
DR. COTTON: As the bands are measured in this test, there are probably not ones that are unique in the population.
MR. NEUFELD: Okay. And I believe you also said that the first thing you do when conducting a DNA test and looking at the autorad is, you make a visual comparison; is that right?
DR. COTTON: It's not the first thing we do when we're conducting a test, but--
MR. NEUFELD: No. After looking at the autorad.
DR. COTTON: --the first thing we do when you have the film off is to make a visual assessment of what's on that film.
MR. NEUFELD: And correct me if I'm mistaken, Dr. Cotton, because I want to get this right, but if they are visually indistinguishable, do you then declare them to be a match?
DR. COTTON: No.
MR. NEUFELD: Do you declare them to be--to appear to be consistent with one another?
DR. COTTON: Well, when--at that point, we're not declaring them to be anything because at that point, then you're going to go ahead and do the computer imagining system assessment of band size and then you would make an assessment as whether you had a match or not. So--
MR. NEUFELD: And so would--I'm sorry. I didn't mean to interrupt.
DR. COTTON: So you're not writing anything down. You're not saying I have this opinion. You're just going forward.
MR. NEUFELD: All right. So--and you go forward to the computer because would you agree that it's necessary to have some objective and quantitative procedure for measuring the size of these bands?
DR. COTTON: The computer gives you a quantitative procedure and it--and it assists you in having an objective procedure, but it doesn't completely provide an objective procedure because the machine isn't smart enough to make the judgments that the human eye can make.
MR. NEUFELD: So it's a combination then of the person with the computer that gives you an objective and quantitative procedure for measuring the size of the bands?
DR. COTTON: Yes.
MR. NEUFELD: Now, you mentioned that given the limitations of the system, the imprecision of the system, you said that no band would be unique in your system; is that correct?
DR. COTTON: For a single genetic location.
MR. NEUFELD: Right.
DR. COTTON: I mean we don't really know. I'm just saying, based on what we do know and our experience, I wouldn't want to say that there was one that was unique. So--
MR. NEUFELD: Well, you mentioned, when you're talking about imprecision, that if bands don't necessarily line up exactly, in other words, one band could have more base pairs than another band, under your system and given its imprecision, you would still declare a match; is that correct?
DR. COTTON: If they're close enough in their measured number of base pairs, yes.
MR. NEUFELD: All right. Let me ask you, just to illustrate this point, assume this is the autorad and you have a band in lane 1, all right? And that band is--let's call it 10,000 base pairs. In other words, your computer has looked at that band and measured it and determined that it is a 10,000 base pair band.
DR. COTTON: Fine.
MR. NEUFELD: All right? Okay. Now, given your system's imprecision, how much bigger could a band be or smaller could a band be than 10,000 base pairs and you still declare it a match under your procedure?
DR. COTTON: If you want the precise answer to that question, I need to look in our standard operating procedure. But if you'll accept something that's reasonably close--
MR. NEUFELD: I will.
DR. COTTON: --the figure would be about four percent. There's a whole set of figures. So I'm trying to remember what the figure is in that size range, but four percent is going to be close to whatever the actual figure is.
MR. NEUFELD: Okay. Now, four percent of 10,000 is approximately what?
400?
DR. COTTON: Yes.
MR. NEUFELD: So if a band in lane 2 was let's say a little bit larger, 10,400 base pairs, under your system's imprecision, you would still declare a match between these two bands even though one has 400 more base pairs to it than the other; is that correct?
DR. COTTON: Yes. Given our--my example of four percent, yes.
MR. NEUFELD: Okay. Well, is that a correct approximation? If it's not, please give me another one.
DR. COTTON: I'm just telling you, it's close.
MR. NEUFELD: Okay.
DR. COTTON: I--I just don't remember the exact set of figures.
MR. NEUFELD: And, likewise, if the band was smaller than 10,000 and was only let's say 9,600 base pairs, under your system's imprecision, you would still declare a match between the 9,600 base pair band and the 10,000 base pair band; is that correct?
DR. COTTON: That's right.
MR. NEUFELD: Okay.
MR. NEUFELD: One moment.
(Brief pause.)
MR. NEUFELD: Now, would you agree, Dr. Cotton, that within that range that I gave you there, 9,600 to 10,400 base pairs, there could be in fact, in reality that is, different and distinct alleles?
DR. COTTON: Of course.
MR. NEUFELD: Given the imprecision of your system, Dr. Cotton, that you've just described, if an item of evidence and a suspect have a band, a particular band which in fact differ by, in our example here, let's say 400 base pairs, then you would declare the suspect and the item to be a match, is that right, just for that band?
DR. COTTON: Yes.
MR. NEUFELD: And even if in fact the suspect's band represented a different allele than the evidentiary allele, you would still make that declaration of a match given your system's imprecision for that single band; is that correct?
DR. COTTON: Well, let me be clear here. In our laboratory, we don't ever report a match on--based on a single band.
MR. NEUFELD: Right.
DR. COTTON: But if you're asking me, do you have this size band and this size band and they're within the correct range, are they going to be called a match, the answer is yes.
MR. NEUFELD: Just so I can understand the system, and in fact in this particular case, when you actually did computer sizings--you did computer sizings of the bands in this case, didn't you?
DR. COTTON: Oh, yes.
MR. NEUFELD: And when you compared, for instance, a band in lane 52 and then you sized a band in Mr. Simpson's reference lane, the number of base pairs that your computer came up with was not the same number for both those lanes; isn't that correct?
DR. COTTON: They're not identical. That's correct.
MR. NEUFELD: Okay. Now--
MR. NEUFELD: One moment, your Honor.
(Brief pause.)
MR. NEUFELD: Now, I take it, Dr. Cotton, that to arrive at a frequency of 1 in 170 million people, you did not test the blood of 170 million people?
DR. COTTON: That's obviously correct.
MR. NEUFELD: In fact, you didn't test the blood of even a million people; is that right?
DR. COTTON: Not in my lifetime.
MR. NEUFELD: Or even 100,000 people?
DR. COTTON: We tested, as I said before, for the database, the size ranges from about 150 to about 325. If you add all the people in the database up, all three racial groups, comes to around 5- to 600.
MR. NEUFELD: And it's taking a number--well, let me ask you. You gave a number though, for instance, for Mr.--for the profile, Mr. Simpson's profile, you said you expect to see it in 1 out of 170 million people in the African-American population; is that right?
DR. COTTON: Yes.
MR. NEUFELD: Okay. And how large is your African-American database from which you generated that number?
DR. COTTON: If you'll hang on just a minute, I'll tell you.
MR. NEUFELD: Certainly.
(Brief pause.)
DR. COTTON: I'm ready.
MR. NEUFELD: Okay.
DR. COTTON: The--what I'll do is read you the sizes for the number of people that are in each probe one by one because they're not all the same.
MR. NEUFELD: Well, let me ask you this then. You mean, there's not--is there a single group of people who your laboratory has identified as--as African Americans on whom you ran all five of the probes that were utilized in this case?
DR. COTTON: No. There's a lot of overlap between who's, for example, been tested with MS1 and MS31 and so on. But the samples do not have--most of the samples do not have all five probes across each sample.
MR. NEUFELD: All right. Can you tell us how many of the samples you did run all five probes on in the African-American population?
DR. COTTON: Not without going back and doing a lot of figuring from the database. I don't know that off the top of my head.
MR. NEUFELD: All right. What I would simply ask is that between tonight perhaps when we break and tomorrow, maybe you can make some phone calls and there's someone back at Cellmark that can help you learn that so I can ask you tomorrow.
DR. COTTON: I'll try to get that information. I don't know--I don't know--I haven't been at Cellmark for a while. I don't know which of my lab staff are available to help me find things in the lab.
MR. NEUFELD: Thank you very much.
THE COURT: Take into account the time difference too.
MR. NEUFELD: Certainly.
MR. NEUFELD: Well, putting that aside and starting out with your premise that you can't really say how many people were subjected to all five probes, why don't you give me the range then for within the--your African-American database?
DR. COTTON: There are 240 people for MS1, 238 for MS31, 223 for MS43, 200 for G3 and a 146 for YNH24.
MR. NEUFELD: So would you agree that at a maximum, the greatest number of African Americans in your African-American database who have been subjected to all five probes would be that 140 something number you gave for YNH24?
DR. COTTON: 146.
MR. NEUFELD: 146 people?
DR. COTTON: Yes.
MR. NEUFELD: Okay. And so based on your analysis of 146 people of African-American ancestry, you arrived at a combined frequency in this case of 1 in 170 million people; is that correct?
DR. COTTON: No, it's not because some of the probes had quite a large number, more than 146. And since you're looking at the frequency of bands for each individual probe, the frequencies are not--the fact that you don't have each person across all five probes doesn't affect your ability to look at a frequency for a specific probe.
MR. NEUFELD: Fine, Dr. Cotton. So it's 200--what's the largest number--what's the largest number in the database for any of those five probes?
DR. COTTON: 240.
MR. NEUFELD: So what you did was, you looked at the DNA profiles of 240 people, and from that, you extrapolated a number for the frequency of Mr. Simpson's DNA profile of 1 in 170 million people; is that correct?
DR. COTTON: That's correct.
MR. NEUFELD: And would you agree that there has been some controversy about the appropriateness of using databases that size for extrapolating these kinds of large numbers?
MR. CLARKE: Well, excuse me. Objection. Hearsay.
THE COURT: Overruled.
MR. CLARKE: Also irrelevant.
THE COURT: Overruled.
DR. COTTON: I don't think that the controversies have arisen around the size of the database and there is literature to support databases of this size for this purpose.
MR. NEUFELD: Well, let me go back--
MR. NEUFELD: One moment.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. NEUFELD: One moment, your Honor.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. NEUFELD: I just need to get the diagrams that Dr. Cotton made yesterday.
MR. CLARKE: I think they're maybe with the court clerk.
THE COURT: Which diagrams? The hand-drawn diagrams?
MR. NEUFELD: The hand-drawn diagrams.
MR. NEUFELD: Now, to compile this African-American database, did you seek subjects--did you seek subjects from different countries in Africa?
DR. COTTON: No.
MR. NEUFELD: Did you seek subjects from different African-American communities scattered throughout the United States?
DR. COTTON: No, we did not.
MR. NEUFELD: In fact, your entire database--your entire African-American database comes from the red cross--I'm sorry comes from the red cross in Detroit, Michigan; isn't that right?
DR. COTTON: Yes, it does.
MR. NEUFELD: And would you agree that to go from a database of 250 African Americans in Detroit to a number of 1 in 170 million to one in 1.2 billion, you had to make certain assumptions about the independence of these different genetic characteristics?
DR. COTTON: There are a whole series of assumptions built into that calculation, and one of them is independence, but there are also tests for independence in these databases which have been done and they have been shown based on these tests that the markers are independent.
MR. NEUFELD: Now, Dr. Cotton, would you agree, however, that they are based on a number of assumptions, one of which you said is that these different genetic markers are inherited independently of one another?
DR. COTTON: Yes. But what I'm saying is that there is data to back up that assumption and, therefore, it is not really an assumption at this point.
MR. NEUFELD: Would you agree, Dr. Cotton, that there is--or I'm sorry--would you agree, Dr. Cotton, that there has been substantial controversy in the scientific community about that various assumption that you've just described?
MR. CLARKE: Same objection. Also hearsay.
THE COURT: Sustained. Why don't you rephrase the question. It's vague.
MR. NEUFELD: You were talk--
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Referring specifically to the assumption of independence, would you agree that with respect to that assumption and whether or not there is adequate data to demonstrate that it's an appropriate assumption, that that itself has been the subject of significant controversy in the scientific community?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: I'm asking her if it is.
THE COURT: I understand. Sustained. Why don't you rephrase the question, counsel.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: All right. Well, Dr. Cotton, had there been controversy in the past about that very point?
DR. COTTON: Yes.
MR. NEUFELD: In fact, Dr. Cotton, that book that you had in your purse, what--or your briefcase, could--what--could you take it out again, please, the NRC report?
DR. COTTON: The NRC report?
MR. NEUFELD: Yes.
(The witness complies.)
DR. COTTON: The NRC report says that there's controversy around that various assumption--
MR. CLARKE: Excuse me. Objection. Hearsay, your Honor.
THE COURT: Sustained. Sustained. The jury is to disregard the implication of the question.
MR. NEUFELD: Dr. Cotton, isn't there an entire chapter--
MR. CLARKE: Excuse me. Objection, your Honor.
THE COURT: Sustained. Sustained. It's hearsay.
MR. NEUFELD: Dr. Cotton, you said that--
THE COURT: What's the nature of the controversy, doctor?
DR. COTTON: There have been a few people who are experts in population genetics who have not agreed with the way statistical calculations are made for forensic casework as given in the RFLP example. There are also a large number of people who agree that the statistical calculations are appropriate. So depending on who you phoned up, you might find an opinion one way or the other.
MR. NEUFELD: So are you saying that you disagree with what the NRC says--
MR. CLARKE: Excuse me. Objection. Hearsay, your Honor.
THE COURT: Sustained. Sustained.
MR. NEUFELD: Well, you said there are a few people, Dr. Cotton, who take that position. Isn't it a fact, Dr. Cotton, that as recently as November of 1994, more than two dozen --
MR. CLARKE: Excuse me. Objection, your Honor.
THE COURT: Sustained. Sustained.
MR. CLARKE: May we approach?
MR. NEUFELD: I'm asking if she's aware.
THE COURT: No. You're calling--the question and answer calls for a hearsay conclusion as to the content of something, counsel. That's the problem. Sustained.
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: When you said, Dr. Cotton, a moment ago that there's a few scientists who are critical of that assumption, how many did you mean by a few?
MR. CLARKE: Again, objection. I think this is also hearsay also, your Honor.
THE COURT: Overruled.
DR. COTTON: Based on the number of published articles that state an opinion one way or another, I would say there might be--this is sort of a little hard to answer, but maybe something around five or six people who have been vocal in their opposition to these calculations.
MR. NEUFELD: All right. Dr. Cotton, let me ask you this.
MR. CLARKE: Excuse me. Could the witness finish her answer, please?
MR. NEUFELD: The question--
THE COURT: Yes.
MR. NEUFELD: I think that was responsive. And beyond that would be--
THE COURT: Well, she was still speaking when you jumped in there, counsel.
MR. NEUFELD: Sorry, your Honor.
THE COURT: And there's an objection. When the objection is made, you need to allow me to rule on it. Did you finish your answer, doctor?
DR. COTTON: Yeah, I think so.
THE COURT: All right. Next question.
MR. NEUFELD: Do you know who Dr. Ronald Acton is?
DR. COTTON: Yes, I know Dr. Acton.
MR. NEUFELD: Has Dr. Acton written on the subject of population frequencies?
DR. COTTON: I'm aware of one paper that he's written.
MR. NEUFELD: Do you know who Dr. David balding is?
DR. COTTON: Vaguely.
MR. NEUFELD: Do you know who Professor Joel Cohen is?
MR. CLARKE: Objection. Relevance at this point, your Honor.
THE COURT: Overruled.
DR. COTTON: I've read one paper by Dr. Cohen.
MR. NEUFELD: You've heard of him?
DR. COTTON: Well, through seeing his name on--as the author of a paper.
MR. NEUFELD: Do you know who Professor and Dr. Jerry Coyne is?
DR. COTTON: I've heard of him. I haven't written--I mean, haven't read anything that he's writ--I'm not aware that he's written anything on this topic.
MR. NEUFELD: Is he a population geneticist?
DR. COTTON: I don't know. I don't know. I'm sorry.
MR. NEUFELD: Fine. Are you aware--are you aware of any testimony that he's given, any cases without saying what it is?
MR. CLARKE: Objection, your Honor. Irrelevant and hearsay.
THE COURT: Sustained.
MR. NEUFELD: Do you know who Dr. Peter Donnelly is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Seymour Geiser is?
DR. COTTON: Yes.
MR. NEUFELD: Is he a Professor at the University of Minnesota?
DR. COTTON: Yes.
MR. NEUFELD: And Dr. Joel Cohen is a Professor at Rockefeller University?
MR. CLARKE: Objection as to relevance, your Honor.
THE COURT: Overruled. Do you know that?
DR. COTTON: I don't know.
THE COURT: All right. Proceed.
MR. NEUFELD: Do you know who Dr. Paul Hagerman is?
DR. COTTON: Yes.
MR. NEUFELD: He is a Professor at the University of Colorado?
DR. COTTON: Yes.
MR. NEUFELD: You know who Dr. Daniel Krane is?
DR. COTTON: Yes. I've read one of his papers. When I say yes, I don't know these people personally, but I may have either heard of them through court issues or read something that they wrote.
MR. NEUFELD: Do you know who Dr. Martin Kreitman is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Charles Langley is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr.--Professor Richard Lewontin is?
DR. COTTON: Yes.
MR. NEUFELD: He's a Professor at Harvard University?
DR. COTTON: I understand that's where he is.
MR. NEUFELD: He's a population geneticist?
DR. COTTON: Yes.
MR. NEUFELD: Do you know who Gary Littman is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Michael lynch is?
DR. COTTON: No.
MR. NEUFELD: By the way, I didn't say Dr. Before each name, but just so the record is clear, each one of these is a doctor.
MR. CLARKE: Well, excuse me, your Honor. Counsel is testifying now.
THE COURT: He is. Proceed. The jury is to disregard that as--
MR. NEUFELD: Do you know who Dr. Teri Markow is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Lawrence Mueller is?
DR. COTTON: Yes.
MR. NEUFELD: Is he a Professor at the University of California at Irvine?
DR. COTTON: As far as I know, yes.
THE COURT: In what? In what?
MR. NEUFELD: In the Department of Ecology and Evolutionary Biology?
MR. CLARKE: Well, excuse me, your Honor. Is counsel testifying again?
MR. NEUFELD: No. I'm putting it as a question.
THE COURT: Question.
MR. NEUFELD: Do you know if he is a Professor in the Department of Ecology and Evolutionary Biology?
DR. COTTON: I think so, yes.
MR. NEUFELD: Do you know who Dr. Richard Nichols is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Stephen Peiper is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Rollin Richmond is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. William shields is?
MR. CLARKE: Your Honor, I'm going to object again as to relevance.
THE COURT: Overruled.
DR. COTTON: Yes.
MR. NEUFELD: Is Dr. William shields a Professor of Population Genetics and Genetics at the State University of New York at Syracuse?
DR. COTTON: Yes, he is.
MR. NEUFELD: And do you know who Dr. Terry speed is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Charles Taylor is?
DR. COTTON: Yes.
MR. NEUFELD: Is Dr. Charles Taylor a Professor of the Department of Biology of the University of California in Los Angeles?
DR. COTTON: He was last time I was aware of him.
MR. NEUFELD: And have you heard of Dr. Elizabeth Thompson?
DR. COTTON: Yes.
MR. NEUFELD: And she is the Chairman of the Department of Statistics at the University of Washington in Seattle?
DR. COTTON: I know she's at Seattle. I have no idea what her position is there.
MR. NEUFELD: And do you know who Dr. Michael Turelli is?
DR. COTTON: No.
MR. NEUFELD: Do you know who Dr. Donald--
MR. NEUFELD: One moment.
MR. NEUFELD: Excuse me. Do you know who Dr. Donald Ylvisaker is?
DR. COTTON: No.
MR. NEUFELD: And do you know who Dr. Sandy Zabell is?
DR. COTTON: No.
MR. NEUFELD: And finally, do you know who Dr. Marcus Feldman is?
DR. COTTON: The name sounds familiar, but again--
MR. NEUFELD: Would it refresh your recollection if you knew that he was a Professor in the Department of Biology at Stanford University in California?
MR. CLARKE: Excuse me. Assumes facts not in evidence.
THE COURT: Sustained.
DR. COTTON: I'm sorry. It doesn't help.
MR. NEUFELD: Now, hypothetically, Dr. Cotton, if all the people on that list--
MR. CLARKE: Excuse me, your Honor. Objection.
THE COURT: No, no, no, no, no, no.
MR. NEUFELD: Dr. Cotton, at any time in the last five months, have you seen a letter--
MR. CLARKE: Excuse me.
MR. NEUFELD: I'm not saying the contents of it, your Honor.
MR. CLARKE: Objection. Irrelevant. 721.
THE COURT: Sustained.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Cotton, at least as to the people whose names you recognized, do you agree that they have articulated that there was--
MR. CLARKE: Objection, your Honor. Hearsay. Could we approach sidebar?
THE COURT: No. Sustained.
MR. NEUFELD: I would ask that this be marked next in order to show it to the witness.
THE COURT: What?
MR. NEUFELD: A letter.
THE COURT: All right. Next in order.
(Deft's 1145 for id = letter)
(Brief pause.)
THE COURT: No. Just hand it--
MR. CLARKE: Could I see the exhibit, your Honor?
MR. NEUFELD: Sure.
THE COURT: All right. For the record, is this a letter in science magazine?
MR. NEUFELD: No.
THE COURT: What is it?
MR. CLARKE: May we approach, please, your Honor?
THE COURT: No. What is it? Just tell me what it is.
MR. NEUFELD: It is--I'll tell--
THE COURT: Mr. Neufeld.
MR. NEUFELD: May I have my exhibit?
MR. CLARKE: I would like to look at it first.
THE COURT: Okay.
MR. CLARKE: Your Honor, this is apparently a letter--
MR. NEUFELD: Your Honor, now you want a speaking--
THE COURT: Counsel, what is it?
MR. NEUFELD: It is a letter written to nature signed by 25 scientists.
THE COURT: Thank you. Thank you.
MR. CLARKE: Well, your Honor, that was rejected and never published.
MR. NEUFELD: Your Honor, it was rejected because--
THE COURT: Wait.
MR. NEUFELD: That was--
THE COURT: Both of you.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Dr. Cotton, you can step down. All right. The Court's clear orders regarding objections were no speaking objections. Both counsel are sanctioned $250. Get your checkbooks out. Right now.
(Brief pause.)
THE COURT: The answer to the Court's question was the letter proposed in science magazine. The other part was objection. The fact it was never published was an argument. I'm not going to tolerate that kind of stuff anymore. Are we clear? March over to the clerk, both of you.
(Brief pause.)
THE COURT: And the attorneys may not bill their clients for this. This is a personal sanction.
THE DEFENDANT: Thank you.
THE COURT: You're welcome. And while they're writing, counsel, I'm aware that this letter was circulated widely, but not published.
MR. NEUFELD: May I be--now that the jury is not here, may I be heard on this, your Honor?
THE COURT: What you can do is ask if she's familiar with it and in any way relied upon it. If the answer is no, that's the end of it. That's 721 of the evidence code.
MR. NEUFELD: The only point I'd like to make, your Honor, is that what I was about to say was--I wanted to have a sidebar so I could explain exactly why it was rejected, because what Mr. Clarke did--
THE COURT: I'm not getting into the publication policies of science magazine, counsel. You're entitled to see if she relied upon it for the purposes of cross-examination. I assume you have your own experts who are going to come in--I'm sure we'll see Dr. Lewontin. All right. Let's have the jury.
MR. NEUFELD: Your Honor, I would ask though for a curative with respect to what he had to say because I didn't get to say anything as to the reason why, but he say something that was completely improper that the jury did hear. The jury didn't hear --
THE COURT: As soon as they come in, I'm going to tell them to disregard everything that just went on including my reaction.
MR. NEUFELD: Thank you, your Honor.
THE COURT: You're welcome. Let's have the jurors. Thank God it's almost Friday. But I would like, if possible, to get Dr. Cotton home.
MR. NEUFELD: Today?
THE COURT: No. Tomorrow is Friday.
MR. NEUFELD: As I explained to you, I thought we would--two full business days.
THE COURT: Well, you got the Court's expression of its opinion as to where we're going here and what's important.
MR. NEUFELD: People had four days of direct examination.
THE COURT: I understand. Let's have the jurors.
(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. Ladies and gentlemen, you are to disregard the last commentaries by both counsel regarding this particular piece of paper. You are also to disregard the nature of my reaction to that. It's not something that you should take into consideration deciding the facts and circumstances of this particular case. Let's proceed. Dr. Cotton. Mr. Neufeld.
MR. NEUFELD: One second, your Honor.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: I show you this five-page letter, ask you to take a look at it, please.
(Witness complies.)
MR. NEUFELD: Have you had a chance to look at it?
DR. COTTON: Yes, I have.
MR. NEUFELD: Thank you. Now, Dr. Cotton, a moment ago, when you said that there were but a few scientists who criticized the assumption of independence, had you taken into consideration this letter?
DR. COTTON: No, I had not.
MR. NEUFELD: Now that you have--well, have you now considered this letter?
MR. CLARKE: Objection. Hearsay. Irrelevant.
THE COURT: Overruled.
DR. COTTON: I--I would need to reread it. I mean, I didn't carefully read the whole text when you handed it to me just now.
THE COURT: All right. Counsel, given the hour, we're not going to do that now. Proceed.
MR. NEUFELD: Can I make a copy so the witness can do it overnight?
THE COURT: Sure.
MR. NEUFELD: Thank you.
THE COURT: The issue is, did she consider that in the formation of her opinions and testimony.
MR. NEUFELD: Yeah.
THE COURT: So proceed. That's just an observation.
MR. NEUFELD: Now--okay. You mentioned that Cellmark's system was in part developed by research conducted by Alec Jeffries; is that right?
DR. COTTON: Yes.
MR. NEUFELD: And I think you even said on direct examination that he--in response to Mr. Clarke's question, that he had been knighted by the Queen in England for his work?
DR. COTTON: That's correct.
MR. NEUFELD: Well, separate and apart from knighthood, would you agree that the most prestigious award in science is the Nobel Prize?
DR. COTTON: Yes, I would.
MR. NEUFELD: And are you aware of the fact that Dr. Cary Mullis won the Nobel Prize for Chemistry in 1993?
DR. COTTON: Yes, I am.
MR. NEUFELD: And are you aware of the fact that he won that Nobel Prize in Chemistry for inventing the PCR process?
DR. COTTON: Yes, I am.
MR. NEUFELD: And the PCR process that Dr. Cary Mullis invented is the very procedure that you are relying on in your forensic work when you do PCR work; isn't that right?
DR. COTTON: That's correct.
MR. NEUFELD: And are you aware that Dr. Cary Mullis is a Defense --
MR. CLARKE: Excuse me. I'm sorry. Objection. Hearsay.
THE COURT: I didn't hear the full question. Are you aware that he is one of the--he is what?
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Are you aware that Dr. Cary Mullis, who won the Nobel Prize for his discovery of PCR, is one of the Defense experts in this case?
MR. CLARKE: Objection. Assumes facts not in evidence. Irrelevant.
THE COURT: Overruled.
DR. COTTON: I've been told that, yes.
MR. NEUFELD: Now, also on direct examination, Dr. Cotton, you said that many of the techniques that are utilized in forensics have been used in other fields as well; is that right?
DR. COTTON: Yes.
MR. NEUFELD: And I believe that one of the fields that you referred to was clinical medicine; is that right?
DR. COTTON: Well, I probably said medical diagnostics.
MR. NEUFELD: Okay. Well, I actually think that--
DR. COTTON: It's the same term. It's fine.
MR. NEUFELD: Okay. One of the examples you gave I believe was that it's used in bone marrow and organ transplant laboratories?
DR. COTTON: Are you talking about DNA testing in general or PCR?
MR. NEUFELD: PCR testing.
DR. COTTON: It could be used. I don't know if it's being used or not specifically.
MR. NEUFELD: Well, do you know whether or not--in fact--I'm sorry. The DQ-Alpha test that you do, is that part of a cluster of markers known as HLA?
DR. COTTON: Yes, it is.
MR. NEUFELD: And is, to your knowledge, the HLA system also utilized by the laboratories that do bone marrow transplants?
DR. COTTON: This specific test for this specific marker or HLA in general?
MR. NEUFELD: That HLA or the HLA cluster is utilized by--by bone marrow transplant laboratories so they can look for donors, possible donors, type them using DNA typing and then match them with somebody who is in need of a bone marrow transfer?
DR. COTTON: I don't think that most tissue typing, that is looking for matches for transplants, is done by DNA. I didn't mean to specifically use that example. When I--when I referred to bone marrow transplanting, I was referring to following the results of the transplant after it occurred, and DNA RFLP analysis I know is used for that purpose because we have done some of that in our laboratory, and there may be other laboratories that have done that as well.
MR. NEUFELD: Now, you said that--well, that in the forensic context, what you've done is, you've taken this existing technology and you've transferred it to the forensic application. Is that a fair statement?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree that when you transfer an existing technology to a new application, there can be significant differences in its implementation?
DR. COTTON: Well, sure.
MR. CLARKE: Excuse me. Objection. I'll withdraw the objection.
MR. NEUFELD: And would you agree that sometimes the new application can be more difficult and challenging than the original application?
MR. CLARKE: Objection. Vague.
THE COURT: I'll allow it to stand.
DR. COTTON: I'm sure that could be the case.
MR. NEUFELD: And that the new application may present more problems of interpretation which may affect the reliability of the new application?
DR. COTTON: It may present more problems or it could present less problems.
MR. NEUFELD: Now--
MR. NEUFELD: I need the exhibit.
(Brief pause.)
MR. NEUFELD: Your Honor, I'm going to go into a new subject, which is going to take a while. Could we stop now?
THE COURT: Sure.
MR. NEUFELD: Okay. Thank you.
THE COURT: All right. Ladies and gentlemen--Dr. Cotton, you can step down. Ladies and gentlemen, we're going to take our recess as far as the jury is concerned at this time. Please remember all of my admonitions to you; don't discuss this case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. And we'll stand in recess as far as the jury is concerned until 9:00 o'clock tomorrow morning. And, Dr. Cotton, you are ordered to return tomorrow morning 8:45. All right. All right. Let's clear the jury, then we'll go on to the other motion.
(Recess.)
APPEARANCES: Janet I. Levine, Esquire, and Alvin Michaelson, Esquire, appearing on behalf of Mr. Kardashian.
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record. The record should reflect the jury has withdrawn from the courtroom. All right. The issue before the Court is the People's desire to call as a witness Mr. Robert Kardashian, a member of the California State bar, and one of the counsel of record for the Defendant in this matter, Mr. Simpson. Previously the Court had heard the argument of counsel and had agreed that the most appropriate way to do this was to attempt to do this by stipulation. Requested the parties to meet and confer. A proposed stipulation was submitted by counsel for Mr. Kardashian. The People have had now, I take it, the opportunity? Miss Lewis good, afternoon.
MS. LEWIS: Good afternoon.
THE COURT: I take it you have had the opportunity to review the proposed stipulation?
MS. LEWIS: Yes, your Honor.
THE COURT: All right. Have you had any further opportunity to confer with Ms. Levine or Mr. Michaelson?
MS. LEWIS: Your Honor, I was under the impression that this afternoon was meant to be an informal in chambers conference for that purpose.
THE COURT: I wanted to know if there was any chance if we had settled it at this point, but if there is a need for to us met and confer, I will be more than happy to do.
MS. LEWIS: We have not settled it, your Honor, and I'm not sure a meet and confer would settle it either. Frankly, your Honor, the whole world saw Mr. Kardashian leave Mr. Simpson's home from Rockingham--
THE COURT: Mild exaggeration.
MS. LEWIS: Well, not terribly mild, given the notoriety of this case, but the whole world saw him leave with that bag. The whole world is wondering what was in that bag. And the declaration which apparently the Defense chose to release to the press--
THE COURT: Excuse me. Hold on. Next one is going to be 500. All right. Proceed.
MS. LEWIS: Mr. Kardashian chose to leave those premises with that bag. At that time we know he wasn't even an active member of the State bar.
THE COURT: Counsel, that is not the issue.
MS. LEWIS: All right.
THE COURT: The issue is can we reach a stipulation as to the facts, and if not, then we will have to have a hearing.
MS. LEWIS: No, we cannot, your Honor. I don't believe we really cannot, excuse me, since we don't know the basis for these facts. There is an additional information that hasn't been articulated. Some of these facts are inconsistent with Mr. Kardashian's recollection, vague recollection as to what baggage he had when he testified before the grand jury under oath many months ago and a lot closer to the opportunity that he had to remember what happened.
THE COURT: Was this matter taken up before the grand jury?
MS. LEWIS: It was taken up briefly before the grand jury in terms of the bags that he took from the Rockingham home when he took Mr. Simpson to his home in Encino. So in the proposed stipulation Mr. Kardashian indicates that he took the bag back to Rockingham and then was--when Mr. Simpson went with him to stay at his house in Encino Mr. Simpson had the bag with him at that time.
THE COURT: No. My question is if you already have Mr. Kardashian's statements under oath to the grand jury, I mean, what more do you need?
MS. LEWIS: We don't, your Honor. Basically, Mr. Kardashian was questioned with regard to the grand jury proceedings concerning the events surrounding June 16th and 17th. There was only some very brief questioning along these lines because at that point in time what was material to the Cowlings' investigation was the black bag which contained the which I believe contained the gun, the thousands of dollars, the disguise that Mr. Simpson had with him, and that is what was material. That particular bag was material only by accident in the course of the questioning there did it come out that Mr. Kardashian had very little recall as far as what bags Mr. Simpson had with him on the earlier date when he left--when they left together to go to his house in Encino. So that lack of recall back when it was much closer to the time that that happened is--makes it sort of astounding that in his declaration or draft stipulation, I should say, which isn't even under penalty of perjury, he states when they left he had several bags with him, Mr. Simpson did, including the Louie Vitton garment bag. So it is amazing to us how his recollection can be so strong now 10, 11 months after the fact, when he testified at the grand jury last August, I believe it was, he had only a vague recollection of what bags Mr. Simpson took with him. So we do not believe that we are going to be able to reach a stipulation in this matter, your Honor, without having Mr. Kardashian be subject to cross-examination about that and about other areas as well, in addition to gleaning additional information, which is not addressed by the stipulation.
THE COURT: All right. Miss Lewis, when you say "other areas as well" what do you mean by that?
MS. LEWIS: Well, Mr. Kardashian indicates that he took several bags, that the Defendant took several bags with him to Mr. Kardashian's house. He doesn't say what happened to any of those bags or why they were taken there. He also indicates that the Louie Vitton garment bag was left at Mr. Kardashian's premises for weeks. He says for several weeks until it was picked up by Cathy Randa, Mr. Simpson's 20-year long administrative assistant. I'm not willing and I don't think the Prosecution is willing to stipulate that Mr. Kardashian did not look inside that bag for a several-week period. Even under normal human courtesy if someone has someone else's bag which apparently would contain their clothing, you think they would open it just to air it out, if nothing else, but certainly, given the circumstances of this case and these double murders with which Mr. Simpson was charged, it would certainly behoove anybody to look inside this bag and see what was in there. So we find that very difficult to accept, your Honor, as an honest recollection on Mr. Kardashian's part. And there are additional--there are additional questions as well. What caused Cathy Randa to pick up that bag several weeks later? What conversation did he have with her that caused her to pick it up? How did Mr. Kardashian know when he pointed out, as Judge Wong testified when he pointed out this particular bag at Mr. Simpson's residence, when there were several of these Louie Vitton garment bags present there, at least at the time of the jury view, what caused Mr. Kardashian to point out this particular bag to Judge Wong? There are several unanswered questions along those lines, your Honor.
THE COURT: Aren't we pretty sure that this is the same bag, given the luggage tags, the American Airline luggage tag that is on it?
MS. LEWIS: I'm not sure of anything at this point, your Honor. Those tags can be subject to transfer from one bag to another and I think we have a right to ask these questions with Mr. Kardashian under oath. And obviously there is no lack--there is no problem as far as the ethics or rules are concerned with having him testify out of the presence of the jury to these matters, but I think it would be important for us to be able to observe his demeanor and cross-examine him and try and get out the full truth, what caused--what happened to these bags, and the one that is in court in particular.
THE COURT: What type of forum are you suggesting?
MS. LEWIS: I'm not sure what you mean by "forum."
THE COURT: I mean are you asking me to do that without any further ado in front of the jury or are you suggesting a hearing outside of the presence of the jury to in essence depose Mr. Kardashian?
MS. LEWIS: I think a hearing outside the presence of the jury would be the appropriate forum to handle that, your Honor, and then at that time, if it appears that we can reasonably stipulate to something, if we are satisfied that there is a sufficient factual basis that we can stipulate and have a desire to stipulate to something, then we can make that assessment after that hearing.
THE COURT: All right. Thank you, counsel.
MS. LEVINE: With all due respect to Ms. Lewis, your Honor, she seems to have missed the entire problem here. It is not whether or not Mr. Kardashian was percipient to anything. If he weren't percipient--
THE COURT: Let me just ask counsel over here to the side bar without the court reporter, please.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Miss Levine.
MS. LEVINE: Thank you, your Honor. Your Honor, this has nothing to do with whether or not Mr. Kardashian is percipient. If he weren't percipient to something, we wouldn't be having this discussion. The question is what does one do when a Prosecutor claims to have known that a person was a witness six months ago and sits on their hands doing nothing while the individual sits in court representing a party, a Defendant in one of the most serious criminal cases that the state can bring. While the Prosecution sits there and watches it, let's the individual, Mr. Kardashian, participate as part of Defense team, participate in discussions, participate in strategy, participate in planning, and yes, even participate to the extent that he may be questioning witnesses. What happens then? Do we just let the Prosecution willy-nilly question people about what they want and refuse to even discuss stipulation? Because your Honor, between the time we proposed a draft stipulation, not an under oath declaration, but a draft stipulation marked as such for discussion, we have not heard one word from the Prosecution team. I do not believe that every member of this team has been in court the whole time 24 hours a day and unable to call and contact us to discuss it. I felt that it was in their ballpark, that it was their turn to come and contact us about that. We have heard nothing. What it indicates to me, and what Mr. Lewis' conversation indicates to me, her colloquy to the court, is that she is interested in one thing only: To put Mr. Kardashian on the witness stand before a jury or not before a jury, to invade basically the Defendant's camp to ask questions about things, not to stipulate. As she put it herself, we will ask him questions and then if we want to stipulate after we've asked him everything we want to ask him and we decide it is true, because we are the people making the decision as to truth or falsity here, then we will decide if we wish to stipulate. That is not what the law is. That is not what the ethical code says should happen. And that is not what is happening in the fact here. They have sat here. Mr. Darden was the lawyer before the grand jury. If he talked about bags--and it is not clear from what Miss Lewis said, whether he did or did not, because first she says he does and then she says he doesn't--if he talked about bags he knew about it. But clearly this incident was on TV. It was something the Prosecution knew about months go, along before this jury was sworn. The law many times punishes parties that don't act on their rights or in their interests. If the Defense lawyer does not make a suppression motion in a timely manner, that motion lapses and can't be made.
If a party does not produce discovery in a timely manner, then they can't use that witness often. The remedy is in the Court's hands, but often that is the penalty. If an objection is not made, it is waived. Here the Prosecution has done everything possible to prejudice Mr. Simpson by letting one of his lawyers consult with him on the most critical questions in this case and now what do they want to do? They want a 402 hearing so that they can probe. Well, 402 has nothing to do with this kind of hearing. It is to determine a preliminary fact. It is not to determine whether the Prosecution believes the truth or falsity of something. That is something they do in their investigation. It is to determine whether or not a confession is voluntary, to determine whether or not a certain preliminary fact has been proven. If it is a question of whether or not there is a preliminary fact aside from that, then the remedy is for them to come forward and say what the preliminary fact is. Legitimate preliminary fact that the Court needs to consider. It is not truth or falsity, or else every witness would be subject to a 402 hearing before they were put on. Gee, we don't believe them, we want a 402 hearing, Judge. That just doesn't make any sense and it is a waste of the Court's time and it adds time inefficiency and a side show.
THE COURT: Let me ask you this one question, though, Miss Levine: Let's say I agree with your position on the matter of Laches, that this motion to inquire of Mr. Kardashian is made in an untimely manner. Let's assume I sustain your objection and deny the Prosecution the right to call him as a witness. They still want to use that videotape and they have the testimony of--regarding the production of the Louie Vitton bag. They will bring in somebody from American airlines who will say that these airline tags, the bar codes are consistent with the flight coming from Chicago back to L.A. On the particular date in question, they have the videotape of Mr. Kardashian carrying what is obviously a bag with something in it, not an empty bag that was produced by Judge Wong. Then they say, okay, and then can argue lawfully and ethically the failure to call logical witnesses by the Defense. They play that videotape and they say, you know why we didn't find any bloody clothing? Because that is where it is and then what does that do to your client's client?
MS. LEVINE: I think my client's lawyers have to worry about that. That is my client, Mr. Cochran, and his other lawyers have to figure out how they answer that question. They got in that jam, too, by having Mr. Kardashian as a witness, but they may--as a lawyer, but they may not think that is a jam. Maybe they have an answer to that. Maybe as the proposed stipulation talks about Miss Randa, maybe there is a Miss Randa or maybe there is some explanation. Maybe Mr. Simpson will testify about it.
THE COURT: But we don't get to that explanation--
MS. LEVINE: Perhaps we don't.
THE COURT: --unless several other things happen.
MS. LEVINE: Perhaps we don't get to any explanation, but your Honor--
THE COURT: But see, you are in an interesting situation because not only do you have an obligation to your client, but your client has an obligation to his client.
MS. LEVINE: That's correct, but he also has an ethical obligation to oppose this. Now, what--what the real problem is here, is that we should be able to sit down in good faith and work out a stipulation, and I don't see that happening, not because we are not trying. I think that we would like to try to work that out, but all I see is the Prosecution wanting something besides a stipulation. The stipulation is the logical answer. If they are not ready to do it today because they have more investigation to do, that is one thing. If they want to talk to other potential witnesses about it, that is one thing. But to just say I don't want in good faith to even talk about it, I think that is wrong, your Honor.
THE COURT: Well, will your client consent to being interviewed by a District Attorney investigator?
MS. LEVINE: I don't think so. Perhaps by the Court.
THE COURT: That is about the last thing that I want to do. What do you propose in the nature of a hearing? Let's assume that your client doesn't want to be interviewed, then I will have to set a hearing, won't I?
MS. LEVINE: I would not think that it would be appropriate to have a hearing with the District Attorney present. I would think that it would be almost like--
THE COURT: Who is going to ask the questions?
MS. LEVINE: Like the type of hearings that are done when there is a confidential informant, your Honor. I would ask the questions, to present it to the Court and then the Court could from that propose a stipulation, just like a confidential informant type situation.
(Discussion held off the record between Defense counsel.)
MS. LEVINE: Otherwise we are in a position where the Prosecution is refusing in good faith to reach a stipulation to take advantage and it is tactically untoward, your Honor.
THE COURT: But let me shift hats now and say their position is going to be that they want something under oath in the record that they can then rely on for the purposes of a stipulation because if they have it under oath and they can find evidence to impeach or refute it, that gives them that much better evidence either way.
MS. LEVINE: But your Honor, if--if it comes out later on that they have evidence, the Court has the in camera hearing that they are not present on and then the Court can reach a different determination later about disclosing it or not disclosing it, just like the Court always would with an informant or that type of information. It is not asking the Court to be in a different position than it is often put in, albeit often from the Prosecution as opposed to a third party.
THE COURT: I don't feel comfortable, Miss Levine, though, being put in the middle of this situation.
MS. LEVINE: Perhaps, your Honor, it would be appropriate to have a third party Judge put in the middle of it. I know Judge Czuleger had been a part of this in the grand jury context and has some--I'm sure he is going to be very pleased with me mentioning him, but it might be appropriate. I know this court is busy almost 24 hours a day, but perhaps he would have time to do that in an in camera context.
MS. LEWIS: Your Honor, the idea of an in camera hearing really doesn't accomplish anything. It doesn't help us assess the credibility of this witness and there is no precedent for it. And in addition, your Honor, the reason why I will not attempt to confer with this attorney is because she lied to the Court last time we were up here, and I don't say that lightly, when she said that I hadn't read this proposed stipulation before I said that Mr. Kardashian was going to have to testify. My mouth fell open because that was not true. And I frankly am not going to be in an informal situation without witnesses present with someone who is willing to make that representation to the Court.
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEVINE: Your Honor, I have never misrepresented nor lied to a court, and I take umbrage with that.
THE COURT: Well, I see it is not likely we are going to get a stipulation here today, is it? Okay. Counsel, what I am going to do is I'm going to set this matter for a hearing out of the presence of the jury. I'm going to have this matter assigned and I'm going to ask the supervising Judge to assign this matter for hearing purposes to another Judge. I'm going to ask the Prosecution to file with this Court, for transmittal to the hearing Court, a list of questions to be asked of Mr. Kardashian. I will allow counsel for both sides to be present and I'm going to suggest that the Judge who does the questioning--let the Judge do the questioning for the purposes of this hearing. Miss Lewis, how long do you think you need to formulate the questions that you are going to propose?
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEWIS: May I have just a moment, your Honor?
THE COURT: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MS. LEVINE: Do we have an right to object to questions, your Honor?
THE COURT: Certainly. That is why I'm asking them in writing in advance and I'm going to allow counsel for Mr. Kardashian to suggest any questions in writing as well.
MS. LEVINE: And for Mr. Simpson as well, your Honor? I would think that that might be appropriate as well.
MS. LEWIS: I'm sorry, I didn't hear the Court in the last comments.
THE COURT: I was indicating that after you submit your questions in writing--
MS. LEWIS: Your Honor--
THE COURT: --and the Defense will have the--excuse me Mr. Kardashian's counsel will have the opportunity to lodge any objections. Mr. Simpson's counsel can also suggest questions.
MS. LEWIS: Your Honor, it strikes me that if we are out of the presence before the jury we will be before a seasoned Superior Court Judge. To have to submit questions in advance, this is an advocacy proceeding where we are trying to ascertain the truth, it doesn't really help get at that.
THE COURT: Miss Lewis, Miss Lewis, the problem is the parameters here. That is why I want them in writing.
MS. LEWIS: Well, your Honor, the--the--both attorneys are here and that is why we have a Judge. The attorneys are here to make the appropriate objections. If they feel that I'm asking something that is inappropriate, the Judge will be there to rule on it just as in any other hearing. I don't think this is such a delicate situation. We are not seeking to ask Mr. Kardashian about communications with the Defendant or anything that has happened since the time about this baggage.
THE COURT: Well, counsel, after I see the questions in writing and submit that to the hearing Judge, they may--he or she may agree with you, but I have to be very cautious. This is a very delicate situation. I think you agree with that.
MS. LEWIS: I honestly don't, your Honor. I have distinguished Meredith.
THE COURT: Okay.
MS. LEWIS: I distinguished footnote 8 in Meredith before and I believe it is distinguishable on the basis that we are not going to be seeking any information that clearly would have come from the Defendant.
THE COURT: How much time do you need?
MS. LEWIS: I believe--
MR. DARDEN: Ten days.
MS. LEWIS: Ten days. Is that what you just said? Ten days, your Honor.
THE COURT: All right. Today is May 11, so how about by Monday morning, May 22nd?
MS. LEWIS: Thank you. That will be fine.
MS. LEVINE: Faxed to my office, your Honor?
THE COURT: Yes, faxed and hard copy in the mail.
MS. LEVINE: Any questions that we would have?
THE COURT: I would like the response by counsel for Mr. Kardashian, and any additional questioning by Mr. Simpson's counsel, by Friday, May 26th, at noon.
MS. LEWIS: I'm sorry, I didn't hear--
THE COURT: May 26th by noon.
MS. LEVINE: That's fine, your Honor.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: And I will convey to Judge Czuleger your endorsement.
MS. LEWIS: Judge Czuleger will be fine, your Honor. I appeared before him in arguing the motion that was brought earlier. That will be fine.
MS. LEVINE: I think I am on the losing track, though, your Honor, having come up with a suggestion.
THE COURT: I would say so. I would anticipate that I'm going to suggest to Judge Czuleger, if it is compatible with his calendar, the afternoon of June 2nd.
MR. DARDEN: Your Honor, can I be heard--
THE COURT: Let me just make sure we've got our calendaring matters and then I will hear from you.
MS. LEVINE: Your Honor, June 2nd is a bad day for us. The 5th or the 6th, your Honor?
THE COURT: Miss Lewis?
MS. LEWIS: Well, this is tending to drag on.
THE COURT: Well, I have a feeling--I have the feeling that we will be still in Gary Sims by then.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: And/or--
MS. LEWIS: Your Honor, actually Friday afternoon when Mr. Darden can be present.
MS. LEVINE: The 9th then, your Honor, because the--
THE COURT: All right. June 9th tentative. We will have to clear it with Judge Czuleger's schedule.
MS. LEVINE: Thank you, your Honor.
THE COURT: Thank you, counsel. Mr. Darden.
MR. DARDEN: Your Honor, during the pendency of the grand jury investigation regarding the Defendant's flight on June 17th there were some arguments had between counsel and myself relative to the attorney/client privilege issue and I believe those transcripts were sealed.
THE COURT: All right. I think that is all the more reason to have it in front of Judge Czuleger, since he is the Judge who had custody of those transcripts and made the sealing order, if my recollection is correct.
MR. DARDEN: During the interim would you order that they be unsealed and a copy provided for counsel and I?
THE COURT: What I will do is I will recommend to Judge Czuleger that he make that order, that both counsel--all counsel be provided with a copy of those proceedings.
MR. DARDEN: Okay.
THE COURT: That is a good idea. Do you happen to know the volume number, et cetera, et cetera?
MR. DARDEN: No. I do know that he had the proceedings transcribed and that he placed them under seal under the Cowlings investigation.
THE COURT: All right.
MR. DARDEN: There haven't been many transcripts under that investigation.
THE COURT: All right. I will try to have that available for counsel by Monday.
MS. LEVINE: Thank you, your Honor.
MS. LEWIS: Your Honor, I assume I don't have to argue timeliness since I've already made this argument previously and you granted--
THE COURT: Counsel, I granted you a hearing, didn't I?
MS. LEWIS: Thank you very much.
MS. LEVINE: Your Honor, I'm going to try to get a copy of the grand jury transcript of Mr. Kardashian as well and I would assume both sides have it and somebody might provide it to me.
MR. DARDEN: Mr. Cochran has a copy.
THE COURT: Mr. Cochran has a copy. Anything else, counsel?
MS. LEVINE: Nothing.
THE COURT: All right. Thank you.
(At 4:56 P.M. an adjournment was taken until, Friday, May 12, 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 Thursday, May 11, 1995
Volume 144 pages 26942 through 27213, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
for volume 144 pages 26942 - 27213
Day date session page vol.
Thursday May 11, 1995 A.M. 26942 144 P.M. 27063 144
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden D Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX of witnesses
PEOPLE'S witnesses direct cross redirect recross vol.
Cotton, Robin 144 (Resumed) 26952GC (Resumed) 27065GC 27072n
ALPHABETICAL INDEX of witnesses witnesses direct cross redirect recross vol.
Cotton, Robin 144 (Resumed) 26952GC (Resumed) 27065GC 27072n
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
259 - Posterboard 26964 144 entitled "Results of DNA analysis"
260 - Posterboard 26998 144 entitled "Results of DNA analysis - Bronco automobile"
261 - Posterboard 27016 144 entitled "Results of DNA analysis - Rockingham residence"
262 - Posterboard 27023 144 entitled "Results of DNA analysis - Rockingham socks"
DEFENSE for in exhibit identification evidence page vol. Page vol.
1144 - Drawing by 27147 144 Mr. Neufeld
1145 - 5-page letter 27177 144