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 th