Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. Mr. Douglas.
MR. DOUGLAS: Your Honor, good morning.
THE COURT: Wait a minute. I need to do the other side. The People are represented by Mr. Clarke and Mr. Darden. Mr. Douglas, good morning.
MR. DOUGLAS: I have a small matter, your Honor, that my client has brought to my attention concerning discovery. There was, in Miss Lewis' comments yesterday to the Court, a repeated mention of there having been thousands of dollars of cash that was in some bag of Mr. Simpson's on the 17th when he was arrested. Everything that I know about the case belies that contention, that there were not thousands of dollars of cash in Mr. Simpson's bag or in his possession, and I would simply want to ask the District Attorney's office for whatever discovery they may have confirming the allegations that Miss Lewis makes, because Mr. Simpson believes it not true and wants to see what facts they are basing the claim that thousands of dollars were in his possession on the 17th. It is a small matter and hopefully can be resolved informally.
THE COURT: All right. Mr. Douglas, we do have a discovery matter set for this afternoon, so we will take it up on that calendar.
MR. DOUGLAS: Thank you, your Honor.
THE COURT: All right. Counsel, anything else we need to take up? Mr. Clarke?
MR. CLARKE: I have two items. One, at the Court's convenience we would like to approach you at side bar, it doesn't have to be right now. It relates solely to scheduling of witnesses.
THE COURT: All right.
THE CLERK: The second item relates to the evidence yesterday, and the Court will recall, I'm sure, when the Court asked the witness a question about controversy, we believe that to be clearly a Frye general acceptance type question. And at this point our only concern is with regard to further questioning in that area by the Defense and at that point I just want to alert the Court, we believe that truly to be Frye general acceptance type questioning, and if that occurs, then obviously we are going to object as totally irrelevant to this proceeding.
THE COURT: All right. Anything else?
MR. NEUFELD: I can respond very briefly if the Court wants it.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Sure. Your Honor, I think there is no question that to the extent that the witness acknowledges or facts come out that certain assumptions or methods that they are relying on here are highly contested or controversial, is not just a Frye issue but also is a question of weight for the consideration of the jury. The jury can decide how much weight to give the testimony on the weight, depending upon whether there is a consensus behind it or whether it is a minority position. Whether or not it is admissible, I think the jury is free to give it as much value as they see fit, and one of the ways they can assess that value is by knowing that significant numbers of the community, both in stature and number, disagree.
THE COURT: Perhaps, but the manner in which it was attempted yesterday was not appropriate. All right. Let's have the jury.
(Brief pause.)
MR. NEUFELD: Your Honor, so that we can avoid any other controversy, I was going to ask the witness as a first question whether or not having--
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Mr. Neufeld, with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right.
MR. NEUFELD: All I was going to say is actually the letter, that is a cover letter, this is the letter and those are the people who signed it. What I was going to ask her was whether or not having now, you know, read that letter--
THE COURT: Uh-huh.
MR. NEUFELD: --that was shown to her, and having thought about it over the evening, would that change her opinion that there are only a few scientists in the population geneticist--I was going to ask her one question--geneticists and statistics communities who find your assumptions about the inherited independence of these genetic markers controversial? And I was not going to refer to the content of the letter or anything else about it, but just ask her, having read the letter and considered it, whether or not that would change her opinion.
THE COURT: What you can do is you can ask her if she has read the letter and if she has considered it in forming her opinion, yes or no. That is all you can ask her. Depending on what the answer is, we will see where it goes.
MR. CLARKE: Do you want to do that quick scheduling item?
THE COURT: Yes.
MR. CLARKE: Dr. Cotton is leaving next week for her daughter's wedding. She can stay, as kind of a last minute, Wednesday through noon. Mr. Neufeld assures me he will be done Monday, in which case--
MR. NEUFELD: I expect to be done by late Monday. Definite as definite as I can be.
MR. CLARKE: I want to let you know.
THE COURT: Well, I was trying to get her out of here earlier.
(The following proceedings were held in open court:)
THE COURT: All right. Good morning, ladies and gentlemen. Dr. Cotton, good morning. Would you resume the witness stand, please.
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 again, Dr. Cotton. You are reminded, ma'am, you are still under oath. And Mr. Neufeld, you may continue with your cross-examination.
MR. NEUFELD: Thank you. Good morning ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MR. NEUFELD
MR. NEUFELD: Good morning, Dr. Cotton.
DR. COTTON: Good morning.
MR. NEUFELD: Dr. Cotton, you may recall late yesterday afternoon I showed you a letter which has been marked as Defense exhibit 1145?
DR. COTTON: Yes, I do.
MR. NEUFELD: Okay. And my question simply is--you read that letter yesterday?
DR. COTTON: I read it last night.
MR. NEUFELD: Okay. All right. And having read this five-page letter, the question simply is this: Did you rely on this letter at all when you testified yesterday earlier that there were simply a handful, or I'm sorry, a few members of the scientific community who took issue with the appropriateness of using the assumptions about the independence of inherited genetic traits that you use in forensic DNA typing?
MR. CLARKE: Objection, misstates the evidence.
THE COURT: Sustained. Doctor, with regards to this letter, did you consider this letter in any way in forming your opinions that you have given us thus far?
DR. COTTON: No, I did not.
MR. NEUFELD: Thank you.
MR. NEUFELD: Now, I noticed yesterday Dr. Cotton, that you had your own copy of the national academy of science book "DNA technology in forensic science"; is that right?
DR. COTTON: Yes, I do.
MR. NEUFELD: Are you familiar with some of the members who are on that committee that authored this book?
DR. COTTON: Yes.
MR. NEUFELD: Are you familiar with the Chairman of this committee Victor Mckusick?
DR. COTTON: Yes, I am.
MR. NEUFELD: Okay.
MR. CLARKE: Excuse me. Objection, relevance.
THE COURT: Overruled.
MR. NEUFELD: And quite simply, is Victor McKusick known as one of the leading geneticists in America?
MR. CLARKE: Excuse me. Same objection.
THE COURT: Overruled.
DR. COTTON: Yes, I think he is.
MR. NEUFELD: In fact, he is the founding president of the human geno organization, isn't he?
DR. COTTON: That I don't know.
MR. NEUFELD: Would it help if you looked at the biographical information on committee members contained in the back of the book?
THE COURT: That is hearsay, counsel. He is the chairman of the committee. I think that establishes who he is.
MR. NEUFELD: And are you familiar with another member of the committee, Paul Ferrara?
DR. COTTON: Yes.
MR. NEUFELD: And do you know that Paul Ferrara is the director of the Virginia Division of Forensic Science?
DR. COTTON: Yes. And he is also the director of the ASCLAD lab accreditation group.
MR. NEUFELD: And I take it that he is someone whose opinions you respect?
DR. COTTON: That's correct.
MR. NEUFELD: And would the same also apply for Dr. McKusick who is the chairman of the committee? Are his opinions those that you would respect?
DR. COTTON: I guess it would depend on his opinion about any particular issue.
MR. NEUFELD: His opinions about molecular biology and genetics?
MR. CLARKE: Objection, relevance.
THE COURT: Overruled.
DR. COTTON: Despite the fact that he is a very well-known scientist, he may have an opinion on a single issue that I might not agree with and an opinion on another issue that I might, so I can't make a blanket statement that I would agree with every opinion that Dr. McKusick would have.
MR. NEUFELD: Would you regard Paul Ferrara as an expert in the area of forensic science?
DR. COTTON: Yes.
MR. NEUFELD: And would you regard him as an expert in the application of DNA profiling in forensic science?
DR. COTTON: No, I don't think so.
MR. NEUFELD: Would you regard him as an expert in establishing the proper controls and quality assurance for handling items of biological evidence that will subsequently be tested on a DNA level?
DR. COTTON: Yes.
MR. NEUFELD: And are you familiar with another member of the committee, Dr. Haig Kazazian?
DR. COTTON: Yes.
MR. NEUFELD: And are you aware that he is the director of the Center of Medical Genetics at Johns Hopkins University School of Medicine?
DR. COTTON: Yes.
THE COURT: Do you want to spell that for the court reporter.
MR. NEUFELD: K-A-Z-A-Z-I-A-N. First name Haig, H-A-I-G.
MR. NEUFELD: And is it Haig Kazazian's reputation that he is one of the leading members of the genetics community in this country?
DR. COTTON: Yes.
MR. NEUFELD: And are you familiar with Dr. Mary-Clair King?
DR. COTTON: Yes.
MR. NEUFELD: And are you aware that she is a Professor of Epidemiology in the School of Public Health at the University of California at Berkeley?
DR. COTTON: Yes.
MR. NEUFELD: And that she has a reputation in the community of population genetics?
DR. COTTON: I know--
MR. CLARKE: Excuse me. Objection, vague.
THE COURT: Overruled. Dr. Cotton.
DR. COTTON: I know that she is interested in population genetics and I have met her on a couple of occasions. I don't know what her overall scientific reputation within her field is.
MR. NEUFELD: And are you familiar with another member of the committee, Dr. Henry C. Lee?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree that Dr. Lee is one of the--I'm sorry--are you aware that he is the director of the forensic science laboratories of the Connecticut State Police?
DR. COTTON: Yes, I am.
MR. NEUFELD: Are you aware that he is also a Professor of Forensic Science in Connecticut?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree that his reputation is of being one of the leading forensic scientists in America?
DR. COTTON: Yes.
MR. NEUFELD: Finally, are you familiar with this other member of the committee, Dr. George Sensabaugh?
DR. COTTON: Yes.
MR. NEUFELD: And Dr. Sensabaugh, are you aware that Dr. Sensabaugh is a Professor of Forensic Science and Biomedical Sciences also at the University of California at Berkeley?
DR. COTTON: Yes.
MR. NEUFELD: And in fact, this member of the committee, Dr. Sensabaugh, has from time to time been a paid consultant to Cellmark, hasn't he?
DR. COTTON: I don't really--I know that he has consulted with Cellmark back in like 1988. I don't really recall whether he was paid or he just agreed to do that. And he hasn't consulted specifically for us in any way for quite a long time.
MR. NEUFELD: And would it be fair to say that you certainly--that he has a very excellent reputation in the forensic science community?
DR. COTTON: Yes, I would.
MR. NEUFELD: Would you also consider him an expert in the application of DNA profiling to forensic specimens?
DR. COTTON: Yes, I think so.
MR. NEUFELD: And would you respect his opinions and conclusions on those topics?
MR. CLARKE: Objection, relevance.
THE COURT: Well, that is vague.
MR. NEUFELD: Now, to your knowledge, Dr. Cotton, do any of the scientists or forensic scientists who I have named who served on this committee and authored this book, to your knowledge do any of them have a financial interest in any laboratory conducting forensic DNA typing?
MR. CLARKE: Objection, relevance.
THE COURT: Sustained.
MR. NEUFELD: Does Cellmark have a financial interest in the outcome of the controversy over the proper methods to estimate the frequency after DNA pattern?
MR. CLARKE: Objection, relevance, hearsay and assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: Goes to bias.
THE COURT: Sustained. Rephrase the question, counsel. Financial compensation is fair game, but the manner in which it is phrased is not appropriate. Rephrase the question.
MR. NEUFELD: Well, Cellmark is not a government laboratory, is it?
DR. COTTON: No, it is not.
MR. NEUFELD: Cellmark is not a not-for-profit research laboratory, is it?
DR. COTTON: No, it is not.
MR. NEUFELD: Cellmark is in the business of doing DNA testing for hire; isn't that right?
MR. CLARKE: Well, objection. I think that is argumentative.
THE COURT: It is. Rephrase the question.
MR. NEUFELD: Cellmark--Cellmark--Cellmark diagnostics laboratory is a business operation, isn't it?
DR. COTTON: Yes, it is.
MR. NEUFELD: All right. And not only do you charge for the actual testing that you do, for instance, for the Prosecution in this case, but you are paid, for instance, by the Prosecution for your attendance here as an expert witness; isn't that right?
DR. COTTON: Cellmark is paid for my attendance here.
MR. NEUFELD: Right.
DR. COTTON: I don't get paid.
MR. NEUFELD: Cellmark is paid for your attendance as an expert witness?
DR. COTTON: That's right.
MR. NEUFELD: Do you know how much Cellmark receives each day for your attendance here?
DR. COTTON: Yes, I do.
MR. NEUFELD: How much is that?
DR. COTTON: It is $1200.
MR. NEUFELD: And are those for the days that you are actually on the witness stand or is Cellmark charging $1200 a day when you are simply sitting here in court or upstairs in the District Attorney's office?
DR. COTTON: Well, if I'm here on business for a particular case, then whatever I'm doing on that business, whether I'm upstairs or down here, is still time away from the lab and so it is still charged at that same rate.
MR. NEUFELD: All right. You said that you are the laboratory director for Cellmark in the USA; is that right?
DR. COTTON: Yes, I am.
MR. NEUFELD: You mentioned at the close of your direct examination, Dr. Cotton, that you furnished the Defense copies of your protocol and databases in this case; is that right?
DR. COTTON: Yes.
MR. NEUFELD: Now, when you said you furnished copies of your databases as discovery, did you mean that you furnished the actual x-ray films comprising those databases or did you furnish us with computer disks which reflect the sizings of the various people who are in your database?
DR. COTTON: It was the computer disk that reflect the sizings.
MR. NEUFELD: And in fact, Dr. Cotton, in furnishing such items as the protocols and the databases, you charge the Defense for those items, didn't you?
DR. COTTON: Yes, we did.
MR. NEUFELD: And would it be fair to say, Dr. Cotton, that for the discovery that we have asked for in this case and received you have charged the Defense more than $5,000?
DR. COTTON: That's correct.
MR. NEUFELD: And that is another way that Cellmark can make money from being retained in a particular case?
MR. CLARKE: Objection, argumentative.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Well, for instance, Dr. Cotton, for the various copies of x-ray films of autorads that we have requested in this case as discovery, you charge $25.00 an autorad; is that right?
DR. COTTON: That's correct except--
MR. NEUFELD: Would you--I'm sorry.
DR. COTTON: Can I finish, please?
MR. NEUFELD: Yes.
DR. COTTON: We did not charge for the copies of the case films.
MR. NEUFELD: But for the other autorads that we requested for discovery purposes to assess the quality of your laboratory, you charged $25.00 for each of those?
DR. COTTON: That's correct.
MR. NEUFELD: And do you know, for instance, that the Department of Justice charges $5.00 for each of those x-ray films?
MR. CLARKE: Objection, calls for hearsay, irrelevant.
THE COURT: Sustained. Assumes facts not in evidence.
MR. NEUFELD: Well--
THE COURT: Rephrase the question.
MR. NEUFELD: Do you know how much the Department of Justice charges?
THE COURT: Rephrase the question.
MR. NEUFELD: --the Defense for each x-ray film that it produces in this case?
THE COURT: Rephrase the question. It is vague.
MR. NEUFELD: It is vague?
THE COURT: It is vague.
MR. NEUFELD: Okay.
THE COURT: There are 28 Departments of Justice in the United States.
MR. NEUFELD: Okay.
MR. NEUFELD: Do you know how much the California Department of Justice DNA laboratory charges the Defense for each autorad that it produces in this case?
DR. COTTON: No, I don't.
MR. CLARKE: Objection, irrelevant.
THE COURT: Overruled.
MR. NEUFELD: Now, when we finished yesterday afternoon, I asked you a few questions about this--this notion of the transfer of technology from medical diagnostics or disease diagnostics to the forensic case. Do you recall that?
DR. COTTON: Yes.
MR. NEUFELD: And I believe at the end, just to make the transition, your Honor, that you agree that new applications such as forensics may present or pose more problems which may affect the reliability of the new application; is that correct?
DR. COTTON: Well, I believe what I said was that any new application may pose more problems or less problems than some previous application, so you can't assume, just because it is a new application, that already it has more problems.
MR. NEUFELD: All right. Currently, Dr. Cotton, would you agree that there is no federal regulatory scheme requiring that you meet certain minimal quality for your forensic DNA profiling at your laboratory? Would you agree with that fact, with that statement?
DR. COTTON: Can you clarify that? What do you mean by a federal --
MR. NEUFELD: Sure.
DR. COTTON: --scheme?
MR. NEUFELD: There is no federal regulation that regulates the quality of forensic DNA profiling that you generate in your laboratory currently; isn't that correct?
DR. COTTON: Yes. That would apply to all forensic DNA typing laboratories. There are no federal--specific federal regulations applying to forensic DNA laboratories.
MR. NEUFELD: On the other hand, do you know whether, for instance, the national bone marrow program DNA typing procedures are subjected to mandatory federal regulations which govern the quality of their testing?
DR. COTTON: Not--no, I don't know.
MR. NEUFELD: Okay. Would you agree in fact that currently, Dr. Cotton, there is more federal regulatory control of the quality in testing for strep throat than there is in the quality of testing for forensic DNA profiling?
MR. CLARKE: Objection, irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Now, you mentioned on direct examination that you have been accredited by the American Society of Crime Lab Directors L.A.B.; is that right?
DR. COTTON: Yes, I did.
MR. NEUFELD: And this is a voluntary program, is it not?
DR. COTTON: Yes, it is.
MR. NEUFELD: Do you know whether in the field of DNA--DNA's clinical applications in medicine whether accreditation is mandatory by law?
MR. CLARKE: Objection, irrelevant.
THE COURT: Sustained.
MR. NEUFELD: At forensic laboratories that do DNA profiling, is external blood proficiency testing mandatory?
DR. COTTON: Since there is no regulation, there is nothing to be mandatory. There are guidelines that suggest that that would be a good thing to do, if possible. It is difficult to do--I don't know about other laboratories. We to do some external blind tests, but not very many.
MR. NEUFELD: Do you have any knowledge to what extent the Los Angeles Police Department DNA laboratory submits to blind external proficiency testing?
MR. CLARKE: Objection, irrelevant, calls for hearsay.
THE COURT: Sustained.
MR. NEUFELD: Unlike for forensic DNA laboratories, do you have knowledge whether the laboratories that do the bone marrow typing are subjected to mandatory external blind proficiency testing?
MR. CLARKE: Objection. Irrelevant, assumes facts not in evidence.
THE COURT: Sustained.
MR. NEUFELD: To her knowledge.
THE COURT: Sustained.
MR. NEUFELD: Now, was becoming accredited by ASCLAD important to you and to Cellmark?
DR. COTTON: Yes, it was.
MR. NEUFELD: And would you agree that one of the principal purposes of accreditation is to improve the quality of forensic laboratory services?
DR. COTTON: No, I--that's not why we--I can only speak for why we sought accreditation. I can't speak for why another laboratory would do that.
MR. NEUFELD: Why don't you tell us why you sought accreditation, Dr. Cotton?
DR. COTTON: We wanted to have a clear demonstration and that our laboratory work had been--was meeting the TWGDAM guidelines and other guidelines that were set forth by ASCLAD, and therefore we sought the--we applied and sought the accreditation.
MR. NEUFELD: Would you agree that one of the reasons that you wanted to demonstrate that you met the ASCLAD guidelines is to show the public that they can have confidence in the results generated by your laboratory?
MR. CLARKE: Objection, argumentative, your Honor.
THE COURT: Overruled.
DR. COTTON: Yes.
MR. NEUFELD: And I believe you said that for a laboratory such as your own to get accredited by ASCLAD the laboratory had to be inspected by qualified and independent laboratory managers and scientists?
DR. COTTON: That's right.
MR. NEUFELD: And every aspect of your laboratory's operations was inspected and evaluated?
DR. COTTON: That's right.
MR. NEUFELD: And I believe you also said on direct examination that whereas you are the first private laboratory doing forensic DNA profiling to be accredited, that there were many others in the sub-sector, namely, local or State University laboratories that were accredited by ASCLAD? Do you recall that?
DR. COTTON: There are--to my understanding there is about twenty or so.
MR. NEUFELD: And to your knowledge understanding, Dr. Cotton, the Los Angeles Police Department is not one of them; isn't that right?
MR. CLARKE: Objection, irrelevant.
THE COURT: Sustained.
MR. NEUFELD: Now, I believe you said, Dr. Cotton, on direct examination, that each laboratory setting out to do DNA profiling must go through its own validation and make sure that its own people can do it well before going on line with case work; is that correct?
DR. COTTON: I don't remember whether I said anything regarding that yesterday or not.
MR. NEUFELD: Well, would you agree--well, whether or not you said it then, would you agree with that statement?
DR. COTTON: Yes, basically I would.
MR. NEUFELD: Would you agree that it is essential that before a laboratory goes on line doing DNA case work that it gain familiarity with the system by using fresh samples?
DR. COTTON: Yes, that seems like a good idea.
MR. NEUFELD: And would you agree that another thing that a laboratory should do before it goes on line with a particular DNA procedure is to test the marker's survival in dried stains? When I say "The marker," I mean the DNA probes that you are using?
DR. COTTON: What do you mean by "Marker survival"?
MR. NEUFELD: Well, to see how well it does with dried bloodstains, as opposed to fresh blood, for instance?
DR. COTTON: Sure.
MR. NEUFELD: Its robustness?
DR. COTTON: Sure.
MR. NEUFELD: And would you agree that it is important, as a precondition to going on line, that the forensic laboratory test the system on simulated evidence samples have been exposed to a variety of environmental conditions, such as heat and humidity and sunlight and the rest?
DR. COTTON: No.
MR. NEUFELD: You don't think that is important?
DR. COTTON: Well, it is important that that be done at some point, but I don't see any reason why every forensic laboratory should have to do that. If that has been done and that work has been published, I see no need for any laboratory to go back and do that same work over and over and over again every time a laboratory is about to come on line with a new test.
MR. NEUFELD: All right. Would you agree that it is important that the new laboratory, before it goes on line, test its own system on non-probative evidence samples whose origin is known, simply as a check on reliability?
DR. COTTON: Yes.
MR. NEUFELD: And finally, Dr. Cotton, would you agree that before a new laboratory goes on line with this technology that it is important that it establish basic--that it establish basic competence in using the system through blind trials?
DR. COTTON: No.
MR. NEUFELD: Could you please explain to the jury what blind trials are.
DR. COTTON: Yes, and I think there is sometimes many definitions.
(Brief pause.)
(Power outage in the courtroom.)
THE COURT: All right. Mr. Neufeld. All right. Mr. Neufeld, you had just asked Dr. Cotton to explain to the jury what blind trials are.
MR. NEUFELD: Thank you.
THE COURT: You are welcome.
DR. COTTON: What I'm going to do is try to explain--use some words so that maybe we are all using the same words. If you get a proficiency test into the lab, generally the laboratory staff is aware that that is a proficiency test. They are not aware of what the answer should be, but they are aware that this is a set of proficiency samples. In answer to Mr. Neufeld's question, if you have a blind proficiency test, that would mean that the laboratory staff would not know that that was a proficiency test sample. That means it has to come submitted as a regular case with a letter of submission, a person of contact, and all the other things that come with a regular case submission, so it has to look like a fake case. And when the laboratory analyst reaches the point where they would call up and say I have enough DNA to proceed or I don't have enough DNA to proceed, there has to be a person who is willing to talk to them and continue to behave as if this is a real case. So finding outside people to assist you in setting up a blind proficiency test is difficult. There are, however, plenty of proficiency test providers for a non-blind test.
MR. NEUFELD: So you would disagree with that statement that I just made about the necessity of blind trials before a laboratory goes on line?
DR. COTTON: Yes. I would agree that laboratories should do a proficiency test before they go on line, but I would not agree that it needs to be a blind proficiency test, because if they are not on line, how can they be accepting a case in the first place, so I don't even see how you would exactly do that.
MR. NEUFELD: All right. Dr. Cotton, let me ask you this: Even once they go on line, would you agree that there is no substitute in assessing the quality of the work generated by the laboratory to engage in rigorous external proficiency testing via blind trials on a regular basis?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: It is argumentative. Sustained.
MR. NEUFELD: Dr. Cotton, in arriving at your opinions on this particular matter, did you read the section of the NRC report entitled "Experimental foundation"?
DR. COTTON: If I could just look quickly at the--
MR. NEUFELD: Page 55 in your book.
DR. COTTON: Can you ask your question again now?
MR. NEUFELD: Fine. In arriving at your opinions as to what a laboratory should do as a precondition before using new DNA typing, did you at all rely on that section of the national academy of science's book "DNA technology in forensic science"?
DR. COTTON: No.
MR. NEUFELD: Okay. Now, in your laboratory, I think you mentioned that there are several molecular biologists who process the evidence when it comes in and then analyze the evidence; is that correct?
DR. COTTON: That's right.
MR. NEUFELD: And do these molecular biologists begin handling the evidence from the moment it arrives or are there other people with less training who do the initial processing of evidence when it comes to the laboratory?
DR. COTTON: No. They begin handling the evidence from the point that it is unpackaged.
MR. NEUFELD: When we talk about unpackaging, we are talking about unpackaging the blood swatches or other types of material that you get from a police department laboratory or wherever?
DR. COTTON: That's right.
MR. NEUFELD: All right. And I think you mentioned that each of your molecular biologists who begin the processing of the evidence, at least in this case, have six years' experience; is that right?
DR. COTTON: No. They don't all have six years' of experience. It happens that the two people who worked on this case have six years of experience.
MR. NEUFELD: That would be Cooper and Yates?
DR. COTTON: That's right.
MR. NEUFELD: And however, all these molecular biologists who process the evidence from inception--from its arrival, excuse me, are supervised by several ph.D.s; is that right?
DR. COTTON: They are directly by--they are directly supervised by one of the their own group and then indirectly supervised in terms of the case's review by the Ph.D. staff and they are supervised by myself.
MR. NEUFELD: And how many ph.D.s are there in the Ph.D. staff at Cellmark?
DR. COTTON: Well, there are four people with a Ph.D. with Cellmark, but three of them are involved in assigning cases.
MR. NEUFELD: Do you have any knowledge at all about the extent of the experience of the criminalists who are processing these items of evidence at the Los Angeles Police Department?
MR. CLARKE: Objection, irrelevant, hearsay.
THE COURT: Sustained.
MR. NEUFELD: Have you had an ongoing relationship with the Los Angeles Police Department's Scientific Investigation Division? "You" meaning Cellmark?
MR. CLARKE: Objection, irrelevant.
THE COURT: Overruled.
DR. COTTON: Yes.
MR. NEUFELD: You have worked on a number of cases with them?
DR. COTTON: Yes.
MR. NEUFELD: And they have talked to the laboratory director, Michele Kestler, from time to time?
DR. COTTON: I haven't talked to her very often, but other lab staff have.
MR. NEUFELD: And with respect to your familiarity with the LAPD laboratory, do you know to what extent they have any ph.D.s supervising the work product that comes out of that DNA laboratory?
MR. CLARKE: Same objection.
THE COURT: Sustained. It is also way beyond the scope of the direct examination.
MR. NEUFELD: Now, has Cellmark worked with other laboratories in helping to generate standards for the processing of DNA evidence?
DR. COTTON: No, we haven't. The group that generates standards or guidelines for the processing--for doing DNA analysis has mainly been TWGDAM and ASCLAD and Cellmark is not a member of the TWGDAM group because we are a business. And up until the point we were accredited we were not a member of the ASCLAD laboratory group or laboratory accreditation group and now we are, but that is very new.
MR. NEUFELD: But even if there wasn't a formal relationship between Cellmark and the various forensic laboratories through scientific meetings and other types of informal gatherings, has Cellmark participated in the process and in the dialogue of trying to establish standards with the FBI and other entities for the processing of samples for DNA typing?
DR. COTTON: We have more participated in the dialogue about scientific issues and we really were not included in the dialogue regarding guidelines for how typing should be done. Nonetheless, the guidelines are--it is apparent they didn't need our input because the guidelines are very good.
MR. NEUFELD: Dr. Cotton, you mentioned already that you are familiar with Dr. Henry Lee. Are you familiar--are you familiar with a Dr. Gaensslen?
DR. COTTON: Yes.
MR. NEUFELD: And who is he?
DR. COTTON: He is a forensic scientist. I believe he is on the faculty either at Yale or Connecticut and he is also the editor of the journal--the current editor of the "Journal of forensic science."
MR. NEUFELD: So is he a respected member of the forensic science community?
DR. COTTON: Yes, very respected.
MR. NEUFELD: Are you also familiar with James Kearney or Kerney?
DR. COTTON: Yes.
MR. NEUFELD: Who is James Kearney?
DR. COTTON: He is an FBI agent who has been involved in DNA analysis or supervising the--initially supervising the development of the methods that are used at the FBI for DNA analysis.
MR. NEUFELD: In fact, wasn't he the Chief of Forensic Science Research and Training at the FBI Center at Quantico?
DR. COTTON: Yes, that is good. I couldn't remember his exact title.
MR. NEUFELD: And have you read the publication by the FBI entitled "Guidelines for the collection and preservation of DNA evidence"?
MR. CLARKE: Objection, relevance, your Honor.
THE COURT: Overruled.
DR. COTTON: Yes, I have.
MR. NEUFELD: And you are aware that the authors of this publication by the FBI are Dr. Henry Lee, Dr. Gaensslen and James Kearney from the FBI?
DR. COTTON: Oh, maybe I need to look at what you are referring to, because what I'm thinking of doesn't have just three authors.
MR. NEUFELD: Well, there is a fourth author, P. David Bigby as well.
DR. COTTON: No, I don't think we are thinking of the same thing.
MR. NEUFELD: May I approach the witness?
THE COURT: You may.
(Brief pause.)
MR. CLARKE: I'm sorry, may I see it, your Honor?
MR. NEUFELD: It is already in evidence.
THE COURT: Either counsel may approach the witness without leave of the Court.
(Brief pause.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. NEUFELD: This is a photocopy. This isn't the original publication, looks like, in format.
(Brief pause.)
DR. COTTON: I haven't read this.
MR. NEUFELD: You haven't?
DR. COTTON: No.
MR. NEUFELD: Okay. Thank you. As a person who is the director of a forensic DNA laboratory, are you concerned with issues that involve the preservation and collection of biological samples so they will be able to be tested on a DNA level?
DR. COTTON: Yes, I guess so.
MR. NEUFELD: Would you agree that the ability to perform successful DNA analysis on biological evidence recovered from a crime scene depends very much on what kinds of specimens were collected and how they were preserved?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree, Dr. Cotton, that if the DNA evidence is not properly documented prior to its collection, its origin could be questioned?
MR. CLARKE: Objection, relevance, beyond the scope.
THE COURT: Sustained.
MR. NEUFELD: Dr. Cotton, you testified on direct examination as to the types of controls utilized by Cellmark in documenting each item of evidence that you process; is that correct?
MR. CLARKE: Objection, misstates the evidence.
THE COURT: Overruled.
DR. COTTON: You have controls to assess how your scientific procedure worked, if that is what you are referring to then.
MR. NEUFELD: Well, didn't you also say that there were certain rigorous documentation requirements, such as documenting every transfer of a biological specimen within the laboratory?
DR. COTTON: There are rigorous documentation requirements. I didn't say that every transfer--and I'm using that term broadly, like we don't write down it is now going to the freezer, you know, stuff like that.
MR. NEUFELD: Fine, but if it goes from one package to another package, is that the kind of thing that you have a rigorous requirement that it be documented?
DR. COTTON: If the sample goes--when it gets transferred from one tube to the next once the processing has started, that transfer--that labeling is witnessed. That is, let me be totally clear. If I were working at the bench, I would hold up a tube with a label that said--would have the case number on it and it would be 02 and I would show my partner the second tube I was going to use which would be empty and it would also have the same case number and 02. I might then turn around and the actual transfer might not be witnessed, but we are concerned that the labeling is correct, so it is the labeling that is witnessed, not the actual necessarily the actual moving of the sample.
MR. NEUFELD: Would it be fair to say that the reason you are so concerned and you even have a witness there, is because if the labeling isn't correct, the origin of the ultimate sample that you test may be called into question?
DR. COTTON: Yes.
MR. NEUFELD: And so would you agree likewise that if the evidence itself is not properly labeled and documented in the same way that you just described it at Cellmark, prior to its receipt at Cellmark, its origin can also be questioned?
MR. CLARKE: Objection, irrelevant and beyond the scope.
THE COURT: Sustained.
MR. NEUFELD: Based on your expertise in working with forensic specimens, Dr. Cotton, would you agree that if a sample is not properly packaged cross-contamination might occur?
MR. CLARKE: Objection, vague to as to time.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Well, Dr. Cotton, based on your expertise with forensic specimens, would you agree that if an item of biological evidence is not properly packaged in the first instance when it is collected, that cross-contamination might occur?
MR. CLARKE: Objection, beyond the scope, irrelevant.
THE COURT: It is vague.
MR. NEUFELD: Dr. Cotton, based on your experience in handling and processing forensic specimens, are there certain do's and don'ts with respect to the packaging of biological specimens to preserve the DNA integrity?
MR. CLARKE: Objection, vague.
THE COURT: Overruled. Are there any guidelines that you are aware of, general guidelines, regarding these items?
DR. COTTON: I'm not aware of any general guidelines. I am aware of how things are commonly done, since I am aware of the types of things that we receive in the laboratory, but I don't have any special expertise in collection of samples, so my knowledge is pretty much limited to what I am aware of that arrives at our laboratory.
MR. NEUFELD: But is your knowledge also based on your--your common sense as an experienced forensic scientist? Is that a fair statement?
DR. COTTON: Well, of course.
MR. NEUFELD: And that as an experienced forensic scientist used to handling forensic specimens and reading literature on the subject, you have an appreciation of what--what proper controls should be followed when evidence is initially packaged, don't you?
MR. CLARKE: Objection, vague.
THE COURT: Sustained. Counsel, the problem there is "Controls."
MR. NEUFELD: Based on your experience as a forensic scientist, haven't you arrived at certain conclusions and opinions as to what is the proper methods for packaging items of biological evidence at a crime scene in order to preserve it for DNA testing at your laboratory?
MR. CLARKE: Same objection also, beyond the scope.
THE COURT: Overruled. Overruled.
DR. COTTON: I have some basic opinions about what common sense would tell you to do, and beyond that--and I also have some technical information about I know something about--giving you a very brief example, if something is dry, it is better than being stored wet, things like that.
MR. NEUFELD: Okay.
DR. COTTON: The things that I know affect DNA, but there is a limit.
MR. NEUFELD: Fine. So I'm only going to ask you questions about what you know about and how it affects DNA, Dr. Cotton. Would you agree that when something is wet one should not package it in a sealed plastic bag?
DR. COTTON: I wouldn't want to package it in a sealed plastic bag for days. I don't think it would make any difference if it were a short time, but I wouldn't want it to be in there for a long time unless it was cold.
MR. NEUFELD: Are you aware of any forensic laboratory protocol that you have ever inspected that authorizes the packaging of wet biological samples in a sealed plastic bag even for a short time?
MR. CLARKE: Objection, irrelevant, calls for hearsay.
THE COURT: Sustained.
MR. NEUFELD: Dr. Cotton, in your capacity as the laboratory director of a forensic DNA laboratory, have you on occasion inspected the protocols of other forensic DNA laboratories?
MR. CLARKE: Same objection.
THE COURT: Overruled.
DR. COTTON: I have, but that would only be with regard to the DNA typing procedure protocols. That is, what--how you do the DNA analysis, and I have not inspected or read any other types of protocols from a forensic lab.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, Dr. Cotton, in this case a criminalist has testified that she placed wet blood swatches in a clear plastic bag which is folded over so the swatches are less likely to fall out. Would you agree, Dr. Cotton, that by putting a wet swatch into a closed plastic bag that that allows the moisture to remain in the swatch?
MR. CLARKE: Same objection as to beyond the scope.
THE COURT: Overruled.
DR. COTTON: If the plastic bag is sealed like a zip-lock, where it is airtight, then that might be a problem. If it is just folded over, it might not be a problem.
MR. NEUFELD: Dr. Cotton, if the--
MR. CLARKE: I'm sorry, I'm not sure the witness finished her answer.
MR. NEUFELD: I'm sorry. Had you finished?
THE COURT: I think she finished.
DR. COTTON: I am finished.
MR. NEUFELD: Dr. Cotton, if it is folded over such that wet blood in the plastic bag allows the two sides of the plastic bag to adhere to one another, wouldn't that retain moisture?
DR. COTTON: I don't really know. I haven't seen this plastic bag. I've given you the fullest extent of an answer that I think I can.
MR. NEUFELD: One moment, your Honor.
(Brief pause.)
MR. NEUFELD: Dr. Cotton, while we are getting the plastic bags that are in evidence, based on your common sense and your experience as an expert, would you agree that a small piece of cotton, perhaps four or five millimeters, by four or five millimeters, if it is dabbed in wet blood, would in ordinary circumstances dry within minutes?
MR. CLARKE: Well, objection at this point, no foundation, beyond the scope.
THE COURT: Sustained.
MR. NEUFELD: Would you agree, Dr. Cotton--
THE COURT: Counsel, isn't the issue that we need to address with Dr. Cotton, is the impact of moisture, heat, age on the degradation process of DNA? Isn't that the issue?
MR. NEUFELD: I believe it is, your Honor.
THE COURT: All right. Then why don't we ask those questions directly.
MR. NEUFELD: Would you agree, Dr. Cotton, that moisture promotes bacterial growth?
DR. COTTON: Yes.
MR. NEUFELD: Would you agree, Dr. Cotton, that bacteria starts eating up the DNA and the DNA deteriorates and degrade?
DR. COTTON: Over time, yes.
MR. NEUFELD: Would you agree, Dr. Cotton, that degradation occurs more quickly under the combined effects of moisture and heat?
DR. COTTON: Yes, I would.
MR. NEUFELD: In your laboratory, Dr. Cotton, where you are the laboratory director, would it be scientifically acceptable to let wet plastic stains remain in sealed plastic bags--
THE COURT: Would you want to rephrase that. You said "Wet plastic stains."
MR. NEUFELD: Sorry. Because that is what I have written here. At least I can read correctly, your Honor. I just can't type correctly, I'm sorry.
THE COURT: Let me do it.
MR. NEUFELD: Dr. Cotton, in your laboratory would it be scientifically acceptable to let swatches of wet bloodstains remain in sealed plastic bags in the rear of a parked truck unrefrigerated and unair-conditioned in the middle of June for up to seven hours?
MR. CLARKE: Objection, argumentative.
THE COURT: Overruled.
DR. COTTON: I don't think that would be my first choice, but please keep in mind that my laboratory doesn't collect evidence and so we don't collect it, we don't have a truck, we just receive it from someone else who has already collected it.
MR. NEUFELD: And as a result of that, Dr. Cotton, there is no way that you can control the extent to which the offering agency either degraded those samples or cross-contaminated those samples; isn't that right?
DR. COTTON: Of course.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Cotton, I will now show you what has already been marked in evidence as Prosecution 163-e, the plastic bags used by Andrea Mazzola to collect the swatches. You notice how when it rests the two sides of the plastic bag actually lay one on top of the other; is that right?
DR. COTTON: Yeah.
MR. NEUFELD: And would you agree, Dr. Cotton, that if based on your experience with biological materials, that if five or six wet swatches were placed on the bottom of that bag, that the plastic would remain in a closed position, namely, the two sides would remain in contact with one another as opposed to in an opposition?
DR. COTTON: That is probably correct.
MR. NEUFELD: And in a closed position, would you agree, Dr. Cotton, that when in a closed position moisture is retained in the plastic bag, as opposed to having the sample drying?
DR. COTTON: Yes.
THE COURT: All right. Are we available to move on?
MR. NEUFELD: I'm sorry, what?
THE COURT: I think the jury got the point two weeks ago about the bags and wet swatches.
(Brief pause.)
THE COURT: Actually, have we passed that bag through the jury box?
MR. NEUFELD: Now--
THE COURT: Counsel, given the size and the regular nature of the bag, I would just suggest we hand one of the bags to juror no. 1, she can pass it through, just one, and we can proceed with the testimony, since it is a small item to look at. Do you agree with that?
MR. NEUFELD: That's fine.
THE COURT: All right. Mr. Scheck, would you hand that to juror no. 1, please. Thank you. Proceed.
(The exhibit was passed amongst the jury.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Cotton, just so I'm--well, even though the swatch itself doesn't unravel, due to the degradation caused by heat and moisture, invisible changes are occurring; isn't that right?
MR. CLARKE: Objection, vague.
THE COURT: Stained. Rephrase the question.
MR. NEUFELD: Well, when you finally remove a swatch from a plastic bag where it has been subjected continuously to heat and moisture, will the swatch still look the same, namely, will it still look as red as it did before it was subjected to the heat and humidity?
THE COURT: Why don't you rephrase that question. I think are assuming facts that aren't in evidence in that hypothetical.
MR. NEUFELD: Well--
THE COURT: The problem is "Continually" subjected to heat. That is not in the record.
MR. NEUFELD: If a swatch was placed in a hot truck in June and it wasn't air-conditioned, for up to seven hours and it remained during those seven hours moist, would the degrading process continue?
MR. CLARKE: Objection, vague.
THE COURT: Overruled.
DR. COTTON: How hot are we talking about?
MR. NEUFELD: Well, just from your own common experience, if an object is left in a black truck which absorbs heat rather than reflecting it--
THE COURT: Hold on. We have an attorney from New York and we have an expert witness from Maryland talking about June weather conditions in Santa Monica. We got a problem here.
MR. COCHRAN: May I testify?
THE COURT: No, you may not, mr. Cochran.
(Discussion held off the record between defense counsel.)
THE COURT: All right. Deputy Long has and handed bag back to Miss Clark.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Your Honor, rather than even getting into that, I think the jury's recollection of how certain criminalists appeared on the videotape will be controlling on this point and I won't even proceed with it.
THE COURT: Proceed.
MR. NEUFELD: Okay.
MR. NEUFELD: Umm, let me show you the swatches--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Would you simply agree, Dr. Cotton, that the warmer it is the more that exacerbates the degrading process?
DR. COTTON: If there is bacteria present, the warmer it is, that's correct, until it gets too hot, at which point it would kill the bacteria also.
MR. NEUFELD: And in fact if there is moisture present that also increases the likelihood of bacteria eating away at the DNA as well, doesn't it?
DR. COTTON: Under most conditions that would be true, yes.
MR. NEUFELD: And if a stain is lying on a sidewalk it would not be unlikely or unreasonable that there would be some bacteria present; isn't that right?
DR. COTTON: Of course.
MR. NEUFELD: Now, I would like to show you--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Cotton, I would like to two show you two photographs which I guess will be next in order.
THE COURT: Have you shown those to Mr. Clark?
MR. NEUFELD: Yes, yes.
THE COURT: All right.
MR. NEUFELD: He has a copy of them.
THE COURT: All right. 1146, 1147 47.
(Deft's 1146 for id = photograph)
(Deft's 1147 for id = photograph)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. NEUFELD: May I approach the witness?
THE COURT: You may. Counsel, if you are questioning the witness, feel free to approach the witness.
MR. NEUFELD: Now, Dr. Cotton, do you remember that I think you said that Dr. Blake was present at the laboratory when certain samples were unpackaged?
DR. COTTON: That's right.
MR. NEUFELD: And when these samples were unpackaged, Dr. Blake took photographs of them, didn't he?
DR. COTTON: Yes, he did.
MR. NEUFELD: And I show you first--what was the next item, I'm sorry?
THE COURT: 1146.
MR. NEUFELD: 1146. Do you recognize what is in photograph--I'm sorry, item 1146?
DR. COTTON: Yes, I do.
MR. NEUFELD: And could you please tell us what it is?
DR. COTTON: This is one of the items that was opened when Dr. Blake and Dr. Lee were at the laboratory and it consists of five swatches.
MR. NEUFELD: And does those five swatches represent sample LAPD number item 47?
DR. COTTON: Yes.
MR. NEUFELD: And item 47 are purported to be stains taken from one of the drops at Bundy; isn't that correct?
DR. COTTON: That's right.
MR. NEUFELD: Now, I show you--and I ask the Court's indulgence. What is the next item?
THE COURT: 1147.
MR. NEUFELD: 1147.
THE COURT: 1147.
MR. NEUFELD: I show you 1147 and ask you if you can recognize that photograph?
DR. COTTON: Yes, I do.
MR. NEUFELD: And please tell us what it is?
DR. COTTON: It is the item number no. 12 that was also opened on that same day and it consists of six swatches.
MR. NEUFELD: And is that a fair and accurate representation as to how the swatches appeared that day?
DR. COTTON: Yes, it is.
MR. NEUFELD: Your Honor, with the Court's permission may I exhibit them on the elmo?
THE COURT: You may.
(Discussion held off the record between Defense counsel.)
THE COURT: All right. Mr. Neufeld, which photograph--these are both side-by-side?
MR. NEUFELD: Yes.
THE COURT: All right. You showed to the witness as to each one of these, 1146 and 1147, a group of three photographs.
MR. NEUFELD: Yes, but I'm--since one photograph is simply the external envelope, I didn't feel the need to show that.
THE COURT: All right. Are you offering those as a group of three or just these two photographs?
MR. NEUFELD: Just these two photographs.
THE COURT: All right. Proceed.
MR. NEUFELD: Okay.
THE COURT: Can you get that focused a little better?
(Brief pause.)
THE COURT: All right. Mr. Neufeld.
MR. NEUFELD: Now, just--now, you obviously know what the markings are on these different photographs, Dr. Cotton, or you may know, but just from looking at those photographs, for instance, can you tell which swatches came from item 47 and which swatches came from item 12?
DR. COTTON: No.
MR. NEUFELD: And would it be fair to say that as you look at the swatches that purport to be item 47 and purport to be item 12 that you can't tell which ones are very degraded and which ones aren't?
DR. COTTON: That's right.
MR. NEUFELD: And in fact, Dr. Cotton, I believe you said that--well, let--let the record reflect that the upper photograph represents the swatches from item 47--that purport to be item 47.
THE COURT: 1146.
MR. NEUFELD: Right.
MR. NEUFELD: And that the lower group of swatches in this picture, which would be 11--
THE COURT: 47.
MR. NEUFELD: --47 purport to be the swatches from item no. 12.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And based on your testimony, you would agree that there is a lot more DNA present in the swatches from item 12, which is the bottom photograph, than there is in item 47, represented by the top photograph?
MR. CLARKE: Objection, vague.
THE COURT: Overruled.
DR. COTTON: Yes, that is correct. Well, the DNA is in better condition in item 47 than item 12. I haven't compared--I would probably have to go back and think about a comparison for the precise amounts of DNA.
MR. NEUFELD: Well, Dr. Cotton, in fact you said one of the ways that you assess the precise amount or approximate the amount is to do a slot-blot, correct?
DR. COTTON: Yes. Did I just say that backwards? Item 12 is in better condition than item 47.
THE COURT: The jurors are nodding yes, you had that backwards.
MR. NEUFELD: One of the ways that you determine the quantity of human DNA that is present is through a slot-blot, correct?
DR. COTTON: Yes.
MR. NEUFELD: And did do you a slot-blot on both item 12 and item 47?
DR. COTTON: Probably.
MR. NEUFELD: Could you check your notes and please tell us what result you obtained for item 12?
DR. COTTON: Yes. It will take me a minute.
MR. NEUFELD: Please do.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Neufeld, we are going to break at 10:30.
MR. NEUFELD: Break at 10:30?
THE COURT: 10:30.
(Brief pause.)
DR. COTTON: Are you asking me how much--
MR. NEUFELD: One moment.
DR. COTTON: Oh, I'm sorry.
(Brief pause.)
THE COURT: Is it me or is it a little warm in here? Apparently our power department here had a power surge, which was what that glitch was. Apparently our air conditioning system went down with that so I'm having Mrs. Robertson check, so if you want to stand up and take your jacket off, be my guest. Let's proceed. I thought it was just me.
MR. NEUFELD: I don't know what would give you that idea, your Honor. By the way, may we mark this printout as Defendant's 1148?
THE COURT: Yes. Side-by-side?
MR. NEUFELD: Yes.
THE COURT: Yes. 1148.
(Deft's 1148 for id = photograph)
MR. NEUFELD: Have you had a chance to look at the slot-blot for item 12?
DR. COTTON: Yes, I have.
MR. NEUFELD: And by the way, does that slot-blot represent ten percent of the whole sample or is it again ten percent of the portion that was set aside for PCR testing which is approximately ten percent of the whole sample, or if it is something completely different than both of those, please explain what it represents.
DR. COTTON: The slot-blot is giving us information about the DNA in the ten percent of the sample that was set aside for PCR testing.
MR. NEUFELD: But the portion that you use in the slot-blot, is it ten percent--is it a ten percent solution of that ten percent?
DR. COTTON: That's right.
MR. NEUFELD: So really then the slot-blot is approximately one percent of the entire sample, approximately; is that right?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Now, what was the slot-blot reading you got for the amount of human DNA present in item 12?
DR. COTTON: For the amount that was loaded on the slot-blot, my estimation is this is approximately ..5 nanograms.
MR. NEUFELD: So--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, did you also do a slot-blot for item 47?
DR. COTTON: Yes.
MR. NEUFELD: And could you please tell the jury what you came up with for the slot-blot on item 47?
DR. COTTON: Yes. I have to take the same time to do that.
(Brief pause.)
DR. COTTON: Okay.
MR. NEUFELD: Okay. Isn't it a fact, Dr. Cotton, that for item 47, when you ran that slot-blot, the amount of DNA observed was zero?
DR. COTTON: That's what the slot-blot is saying, yes.
MR. NEUFELD: Thank you. Yet--
DR. COTTON: That doesn't mean that there is none there. It means that this measure can't detect any.
MR. NEUFELD: Did you conduct any other test to assess quantitatively the amount of human DNA present in the sample?
DR. COTTON: In 47?
MR. NEUFELD: Yes.
DR. COTTON: No.
MR. NEUFELD: Okay. And would you agree that notwithstanding the disparity between the .5 and zero, those differences would not be observed when you look at these swatches before they are tested?
DR. COTTON: Yes, that's right.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. NEUFELD: Now, in a hypothetical that Mr. Clarke gave you on direct examination, he talked about the possibility--
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. NEUFELD: He talked about--he asked you to assume that item 47 was a bloodstain found in an area that had soil and leaves in it. Do you recall that?
MR. CLARKE: Objection, misstates the evidence.
THE COURT: Overruled.
MR. NEUFELD: Do you recall that?
MR. CLARKE: I'm sorry. May we be heard on this, your Honor?
THE COURT: Do you have the transcript cite?
MR. NEUFELD: I do not have the transcript cite, your Honor. That is my recollection. If you want--if you want to take the recess now, I could find that citation during the recess.
THE COURT: All right. Let's do that. All right. Ladies and gentlemen, I'm going to take our morning recess at this time. Please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, don't allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted. And we will see you back in about fifteen minutes. All right. Dr. Cotton, you can step down.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Mr. Neufeld--back on the record. Did you find that reference?
MR. NEUFELD: I did.
THE COURT: I'm sorry?
MR. NEUFELD: I'm ready to begin.
THE COURT: All right. Mr. Clarke.
MR. CLARKE: Sorry. A reference to--
THE COURT: Your hypothetical about soil was the controversy. My recollection, it was used.
MR. NEUFELD: It was used, but used for a different item. So I'm going to modify my question.
THE COURT: All right. Let's proceed. Let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we've been rejoined by all the members of our jury panel. Ladies and gentlemen, apparently what we experienced this morning at about 9:30 was a power surge. And our air conditioning and heating is controlled by a single power plant here downtown. Apparently when that power surge hit our--the county power plant, there is a computer that immediately shuts the equipment down in the event of a power surge, and there's a start-up procedure that has to be gone through. And for those of you familiar with our power plant, we have some rather large turbines over there that have to be started up again. So that's what's happened. So hopefully we can survive the rest of the morning. I'm told it's back on line manually. So we'll start cooling slowly, but since it's a short day, we'll just slog through it. All right. Dr. Cotton. Good morning again. And, Mr. Neufeld, you may continue with your cross-examination.
MR. NEUFELD: Dr. Cotton--
MR. NEUFELD: Good morning still.
THE JURY: Good morning.
MR. NEUFELD: Dr. Cotton, I'd just shown you those two photographs comparing the swatches in item 47 and item 12. Do you recall that?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Now, what I would like to do is just show you a computer graphic that was created, and I wanted to ask you some questions about it, Dr. Cotton.
MR. NEUFELD: And this, your Honor--this will be Defendant's 1149-a though l.
THE COURT: What happened to 1148?
MR. NEUFELD: 1148 was a printout of the side-by-side.
THE COURT: All right.
(Deft's 1149-a through l for id = computer graphic)
(Brief pause.)
MR. NEUFELD: I don't know if it's easier for you to look up or down, Dr. Cotton.
DR. COTTON: Uh, I don't know. I'd rather come down here and look if that's allowable.
MR. NEUFELD: Whichever is your pleasure, ma'am.
THE COURT: All right. Just long as the court reporter and the jury can hear.
MR. NEUFELD: All right. Dr. Cotton, what I would like you to do for the purposes of this demonstration visualization is assume that that red rectangle is a swatch, a bloodstain swatch. Obviously a bloodstain swatch is much, much smaller than that, right, Dr. Cotton?
DR. COTTON: Most of them are.
MR. NEUFELD: As collected in a crime scene.
DR. COTTON: Yes.
MR. NEUFELD: And certainly the ones in this case are a heck of a lot smaller, aren't they?
DR. COTTON: Yes.
MR. NEUFELD: Okey-doke. And in the illustration, Dr. Cotton, this is a blood swatch representing the bloodstain on it coming from person 1. And on that blood swatch, I have placed a number 1 four times to suggest a certain quantity, whatever it is, of DNA present in that swatch.
DR. COTTON: Okay.
MR. NEUFELD: Okay? And now--
MR. NEUFELD: Could you please show b?
MR. NEUFELD: Now, would you agree, Dr. Cotton, that sealing that swatch in a plastic bag, if it is moist, if the swatch itself is still wet, can cause degradation of the DNA?
DR. COTTON: Over time, degradation will occur.
MR. NEUFELD: And that--okay. And putting it in a plastic bag as opposed to a paper bag, for instance, enhances that degradation; isn't that correct?
DR. COTTON: I don't think that, again, for the short term, it's going to make any difference. For a longer term, it would.
MR. NEUFELD: And when you say it would, it would make a difference whether it's packaged in a plastic bag as opposed to say a brown paper bag?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Would you please show the next one.
MR. NEUFELD: And if you added to that plastic bag the factor of heat, the element of heat, would that even further enhance the degradation?
DR. COTTON: It probably would, yes.
MR. NEUFELD: Okay. And could you now add the next one.
MR. NEUFELD: And again, just to reiterate what I think you're already said, that as long as the blood swatch remains moist, that degradation will continue; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Can you do the next one, please.
MR. CLARKE: I'm going to object at this point as to foundation and relevance. Assuming facts not in evidence.
THE COURT: Overruled.
MR. NEUFELD: And I think finally here, the last element that you talked about before was the factor called time. And the longer the blood swatch is wet and remains in that plastic bag and subjected to heat and moisture, the more it will degrade.
DR. COTTON: Yes. That was--that's probably going to be the case.
MR. NEUFELD: Okay. Now--
MR. CLARKE: Excuse me, your Honor. I'm going to enter another objection under 352 as to misleading. As far as the graphics is what I'm referring to.
THE COURT: All right. Were they shown to you previously?
MR. CLARKE: Yes.
THE COURT: All right. Overruled.
MR. NEUFELD: And you said, Dr. Cotton, I believe yesterday that it is possible that the DNA can become so degraded in the swatch that although the swatch still appears red, it will have no identifiable DNA in it or human DNA in it; is that correct? That's possible?
DR. COTTON: Over a very long period of--in order for it to not have--you won't get to the point where you don't have small bits of DNA, but you can get to the point where the degradation is so substantial that you can't easily measure it by the methods that are generally used in a forensic laboratory.
MR. NEUFELD: So what we're really talking about is the DNA's detectability. That's what lost through time, moisture, heat?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Could you please go to the next one.
MR. NEUFELD: Now, take that blood swatch which has now been completely degraded and assume for a moment that it is cross-contaminated with another--
(Brief pause.)
MR. NEUFELD: One moment.
(Brief pause.)
MR. NEUFELD: Now, assume that the degradation was so complete, as you just described it, that the DNA was no longer detectable.
MR. NEUFELD: Would you please show the next slide?
MR. NEUFELD: If you ran a DNA test on it under those circumstances, you would get, I believe you said, no result; is that correct?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
DR. COTTON: Depending on the level of degradation, it can be so degraded that you don't get an RFLP result, and if the level of degradation can become so much, that you won't even get a PCR result.
MR. NEUFELD: Now--
MR. NEUFELD: One moment.
(Brief pause.)
MR. NEUFELD: Would you please put up 14-n, please?
MR. NEUFELD: Now, if you take that blood swatch originally that came from person 1 and you brought it into actual contact with a wet blood swatch from person 2, all with fresh blood from person 2, could that cause cross-contamination as to the blood swatch that originally had the sample from person 1?
MR. CLARKE: Objection. Improper hypothetical, assumes facts not in evidence.
THE COURT: Overruled.
DR. COTTON: If the hypothetical is as you're suggesting where you have a blood swatch and it no longer has typeable DNA from person 1 and somehow it comes into contact with a second swatch that's wet in such a way that they are so closely connected as to transfer a sufficient amount of DNA to be typed or a liquid blood sample--and same thing. You have to transfer a sufficient amount of DNA to be typed--then of course your hypothetical would be correct.
MR. NEUFELD: And by the way, Dr. Cotton, I think you said, for instance, in sample 52, there was approximately 25 nanograms of DNA present in that--in that--for that DNA test; is that right?
DR. COTTON: What I--what I said about sample 52 was--are you asking me about the RFLP result or the PCR result?
MR. NEUFELD: I asked you about the RFLP result, to estimate approximately how much DNA was loaded in the lane. Wasn't your initial testimony that there was approximately 25 nanograms of DNA in that lane?
DR. COTTON: That is correct, and that is what I said yesterday. What I said yesterday, however, wasn't completely precise, and I can clarify it if you wish me to.
MR. NEUFELD: Go ahead and clarify that, please, Dr. Cotton.
DR. COTTON: When I made an estimation that there was 25 to 50 nanograms of DNA for the RFLP result, what--what I was doing in my head was saying, if I compared--and these things have been done in the lab. So I have some mental image of this. If I took a known sample of specific quantities of DNA that was in good condition and I loaded different amounts on a gel, the intensity of the banding pattern that I'm seeing from item 52 is about the same as I might expect to see for--for 25 to 50 nanograms. Now, if you look at the DNA in item 52 on the small gel as it was originally--on the mini gel to see how degraded it was, you see that there's DNA all the way from the top of the gel all the way on down, meaning it's quite degraded. Only the only the high mole--only the big pieces of DNA--
THE COURT: Dr. Cotton, can you keep your voice up, please?
DR. COTTON: Yes. Only the big pieces of DNA of that--out of that sample can participate in the RFLP pattern. So whereas it's clear that there's mass wise, that is total quantity from the slot blot, there is more than 25 or 50 nanograms. What I was telling you was that the pattern--
MS. CLARK: Could we ask Miss Cotton to return to the microphone?
MR. NEUFELD: Actually, she can return to the witness stand for this.
THE COURT: All right.
MR. NEUFELD: Would you please, Dr. Cotton?
(The witness complies.)
DR. COTTON: What I was telling you is that the pattern was the equivalent of 25 or 50 nanograms of DNA that's in good condition. So more DNA existed in that whole sample, but the amount that could be participating in the RFLP had to be that portion that was in good enough condition, and that would have been some much smaller portion than the whole sample.
MR. NEUFELD: And, Dr. Cotton, when you described that--was it a yield gel where the DNA is spread out along the whole length of it?
DR. COTTON: Yes.
MR. NEUFELD: On the yield gel test--and correct me if I'm mistaken--you will not be able to distinguish bacterial DNA that is present from human DNA; is that correct.
DR. COTTON: That's also correct.
MR. NEUFELD: Okay. Now, getting back then to the illustration in this particular slide, if sufficient quantity of either fresh blood from a reference sample or--
THE COURT: Excuse me. Counsel, this is the fourth time we're asking this question.
MR. NEUFELD: Okay. I'll move on to the next slide.
THE COURT: All right.
MR. NEUFELD: Could you move on to I?
MR. NEUFELD: Now, in this example that I put up there, slide I, you have a situation where the initial swatch has now been cross-contaminated with biological material from person number 2. Do you see that?
DR. COTTON: Yes. You have three 2's up there.
MR. NEUFELD: Right. And that's--the three 2's is simply to indicate that much more of person 2's DNA is on that swatch than person 1's.
DR. COTTON: Okay.
MR. NEUFELD: Due to the combined factors of degradation followed by cross-contamination, okay?
DR. COTTON: Okay.
MR. NEUFELD: Next slide is j? J, please.
MR. NEUFELD: Now, if under this hypothetical, if you were then to do a DNA test, for instance, an RFLP test on a swatch that went through this process, wouldn't the RFLP test give you a profile of a person 2 rather than person 1?
DR. COTTON: Yes.
MR. NEUFELD: And if the degradation was sufficiently complete as to person 1, wouldn't it also give you a PCR result for person 2 as opposed to person 1?
DR. COTTON: If the degradation was extremely extensive, then yes.
MR. NEUFELD: Thank you. Now, one of the things I believe you said on direct examination, Dr. Cotton, was that the presence of soil and leaves mixing with the bloodstain can cause degradation; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: First of all--
MR. NEUFELD: Let's go to the board.
(Brief pause.)
THE COURT: And this is People's exhibit?
MR. NEUFELD: 165, your Honor.
THE COURT: All right. Thank you, counsel.
MR. NEUFELD: And, Dr. Cotton, would you come down and take a quick look at what is known as item 47, which is photo id no. 112? Do you see it?
DR. COTTON: Yes.
MR. NEUFELD: Okay. Do you see any leaves on that bloodstain?
DR. COTTON: No, not that I can see.
MR. NEUFELD: Do you see any deposits of soil on that bloodstain?
DR. COTTON: I don't see any big pieces of anything on the bloodstain.
MR. NEUFELD: Okay. Do you see with your naked eye any small pieces of anything on the bloodstain?
DR. COTTON: Not that I can see in the picture, no.
MR. NEUFELD: Okay. And actually as to--all right. You can have your seat again. Thank you, Dr. Cotton.
(The witness complies.)
THE COURT: Mr. Neufeld, I would suggest that you and Mr. Scheck show the graphic to all the jurors so they can see the close-up of that item.
MR. NEUFELD: Thank you, your Honor.
(The exhibit is displayed to the jury.)
THE COURT: All right. Thank you, counsel.
MR. NEUFELD: And, Dr. Cotton, you mentioned on direct examination that one way to assess if there's going to be an interference with the DNA typing is to do what's called a substrate control; is that correct?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
DR. COTTON: I don't--I wouldn't use the term "Interference." Umm, it just--it only tells you whether or not there was any DNA close to where the stain was taken from.
MR. NEUFELD: Well, doesn't the substrate control also tell you something about the nature of the substrate?
MR. CLARKE: Same objection.
THE COURT: It's vague. Why don't you rephrase it.
MR. NEUFELD: Do you know--what is meant by the term "Substrate," Dr. Cotton?
DR. COTTON: Whatever the stain is deposited on.
MR. NEUFELD: And so the term "Substrate control" refers to taking a control swatch, wet swatch of the actual material that the stain is on; isn't that right?
DR. COTTON: Yes.
MR. NEUFELD: And one piece of information that that substrate control can give you as an examiner is to tell you something about the condition of the substrate, whether or not there are other chemicals present for instance?
DR. COTTON: It doesn't--you're not testing for any other chemicals. The only thing you're testing for is the presence of human DNA, and the only way you detect that is if you have a type. So the only thing in--for purposes of DNA, the only thing that substrate control is telling you is whether you had any other human DNA in a position where the substrate control was taken adjacent to the stain.
MR. NEUFELD: Dr. Cotton, through Mr. Clarke's hypothetical, asking whether or not certain samples could be degraded as a result of their contact with soil and leaf stains or leaf material, what I'm asking you is, if the substrate control is taken right next to the bloodstain, could that be a useful indication or provider of information to see whether or not the swatch right next to the stain has soil on it or leaf stains? Would that be something that you could look at?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
DR. COTTON: You could look at it with your eyes and you could say, well, it's green or it's brown or whatever, but that's not any kind of scientific procedure to tell you what was on that substrate and then been transferred to the substrate control. You'd have to do some other kind of test.
MR. NEUFELD: So there is testing that could be done to determine whether or not there is soil present on that control?
DR. COTTON: I have no idea. That's outside my area of knowledge.
MR. NEUFELD: Now, I think you also said that soil itself can cause degradation, correct?
DR. COTTON: Well, the presumption is, it's the bacteria in the soil that's causing the degradation.
MR. NEUFELD: So if the stains were brought into contact not only with the sealed plastic bag and heat and moisture over a period of time, but also soil, the combined effect of all those different factors can further enhance degradation than if there was no soil present?
DR. COTTON: Yes.
MR. NEUFELD: And, Dr. Cotton, has there been any research done as to whether or not soil can inhibit the analyst's ability to detect DNA in a specimen, in a biological specimen?
DR. COTTON: As far as I know, it's not going to inhibit your ability to detect it in terms of--for example, like a slot blot, you could say it's here. It might inhibit your ability to type it if there's a lot of degradation.
MR. NEUFELD: So you're saying that soil only will degrade DNA, but it doesn't have this independent effect, namely of simply inhibiting the ability to--to type it?
DR. COTTON: No. I said it might inhibit your ability to type it, but it wouldn't necessarily inhibit your ability to detect it.
MR. NEUFELD: Now, there's already been testimony in this case, Dr. Cotton, about the amount of blood in the blood vial containing Mr. Simpson's reference sample. I wish to ask you a hypothetical question. If 1.5 milliliters of Mr. Simpson's reference sample was unaccounted for in that vial, approximately how many microliters of blood would that be able to produce?
MR. CLARKE: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
MR. CLARKE: Also beyond the scope.
THE COURT: Sustained.
MR. NEUFELD: You talked on direct examination, Dr. Cotton, about the special sensitivity of DNA typing. Do you recall that?
DR. COTTON: I recall talking about issues of what tests were more sensitive than what other tests.
MR. NEUFELD: And you also talked about some of the safeguards that are necessary because of the particular sensitivity of PCR amplification. Do you recall that?
DR. COTTON: Yes, I do.
MR. NEUFELD: And would you agree that given the exquisite sensitivity of PCR amplification, it is essential that even greater safeguards be taken to avoid contaminating evidence collected than would ordinarily be used?
THE COURT: Why don't you rephrase that question? The concern is the term "Exquisite" is without definition at this point.
MR. NEUFELD: All right.
MR. NEUFELD: Have you ever heard the term "Exquisite sensitivity" applied to PCR amplification?
DR. COTTON: I don't know that I've heard that particular term.
"Exquisite" isn't something you would normally see in the scientific nomenclature.
MR. NEUFELD: Well, how about extraordinary sensitivity? Would that be more appropriate to describe what happens to PCR amplification?
DR. COTTON: It's very sensitive. To me, it doesn't seem extraordinary giving--given what we know about how well the reaction works. But if you compare it to other tests, then it is much more sensitive than other types of tests.
MR. NEUFELD: And as a result of that much, much greater sensitivity, would you agree that it's essential to have even greater safeguards to prevent any kind of cross-contamination of the evidence collected?
MR. CLARKE: Objection. Vague.
THE COURT: Sustained. Rephrase the question.
MR. NEUFELD: Would you agree that special safeguards have to be taken in collecting biological specimens to avoid cross-contamination given the heightened and extreme sensitivity of the PCR amplification test?
MR. CLARKE: Objection. Beyond the scope.
THE COURT: Overruled. Doctor, do you understand the question?
DR. COTTON: Is he asking me whether or not--
THE COURT: Well, let me ask you this. Well, let me ask you this.
DR. COTTON: I don't know about how evidence is collected at a scene. So I'm having trouble with the question.
THE COURT: All right.
MR. NEUFELD: Even without knowing how it's collected at a scene, but knowing how sensitive PCR typing is and based on your expertise as a molecular biologist and as a forensic scientist, would you agree that special safeguards have to be taken in the collection and preservation of biological specimens that are intended to be subjected to PCR amplification?
MR. CLARKE: Objection. Beyond the scope.
THE COURT: Overruled.
DR. COTTON: When you use the term "Special"--when the evidence is collected and--it should be handled in a way to minimize contamination. When you saw should you take special safeguards, I would expect that the same safeguards would be applied whether you were doing serology or RFLP or PCR. You don't want contamination between samples regardless of what kind of testing that you're using.
MR. NEUFELD: In your laboratory, Dr. Cotton, isn't it true that over and above the safeguards and controls that you use for RFLP testing, you have additional safeguards for PCR testing?
MR. CLARKE: Objection. Asked and answered.
THE COURT: Overruled.
DR. COTTON: Yes, that's true. But the--many of those safeguards are now because in the laboratory, there is the existence of amplified product. And, therefore--which isn't going to be out where evidence is collected. So many of those extra safeguards are designed so that you can not get amplified product back to your original sample. Now, that's not a hundred percent of them, but that's a good part of them.
MR. NEUFELD: And by the way, in your laboratory, to avoid the possibility of getting that amplified product back to the original location, I believe you said that you have a series of different rooms that the item of evidence moves through and it's a one-way street; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: Do you have any knowledge, Dr. Cotton, as to whether or not the Los Angeles Police Department laboratory--
THE COURT: Sustained.
MR. NEUFELD: The PCR amplification test that you utilize doesn't have the capacity to discriminate whether it's amplifying the original target DNA or a subsequent cross contaminant; isn't that correct?
DR. COTTON: That's correct.
MR. NEUFELD: And since it doesn't have that capacity, Dr. Cotton, would you agree that even a minute contaminant could be amplified perhaps a million times or more during the amplification process?
MR. CLARKE: Objection. Asked and answered.
THE COURT: Sustained.
MR. NEUFELD: Well, as a scientist, Dr. Cotton, have you ever heard the expression, "Garbage in, garbage out"?
MR. CLARKE: Objection. Argumentative.
THE COURT: Sustained. Sustained.
MR. NEUFELD: All right.
THE COURT: And I think as lay people, we've all heard the expression too.
MR. NEUFELD: Hope so.
THE COURT: All right.
MR. NEUFELD: Well, in your laboratory, have you been taught and have you taught others that while working with a bloodstain, one shouldn't do anything which could leave even a minute portion of the stain on your clothing so as to risk cross-contamination?
DR. COTTON: Yes. We generally try not to get the bloodstains on our clothing.
MR. NEUFELD: And does your laboratory in fact have a written manual to spell out the safeguards that must be followed to reduce the chances of cross-contamination in your laboratory?
DR. COTTON: Yes. Those procedures that are designed to reduce cross-contamination are laid out in the standard operating procedure.
MR. NEUFELD: And is everyone in the laboratory who handles biological material required to be familiar with those written safeguards?
DR. COTTON: Everyone in the laboratory who handles evidence is required to be aware and follow those safeguards.
MR. NEUFELD: Thank you. And these safeguards are mandatory; are they not?
DR. COTTON: In terms of our laboratory--
MR. NEUFELD: They're not simply suggestions?
MR. CLARKE: Objection. Asked and answered.
THE COURT: Overruled. But you need to allow her to finish answering the question.
DR. COTTON: In terms of our laboratory, they are mandatory. We're not just saying we hope you'll do a particular thing. We're saying we will all do this particular thing.
MR. NEUFELD: Now, in this case, there's been testimony by Gregory Matheson that the criminalists at the Los Angeles Police Department are not required to change their gloves in between the handling of each piece of evidence.
THE COURT: Sustained.
MR. CLARKE: Objection.
THE COURT: Sustained.
MR. NEUFELD: Can we have a sidebar, please?
THE COURT: Nope. She's testifying about the testing that was done at Cellmark.
MR. NEUFELD: As in--
THE COURT: And you've already--she has no idea about the handling, packaging, collection of the evidence. We've established that. Let's move on.
MR. NEUFELD: May I ask questions that occurred at the laboratory as opposed to at the crime scene and ask her opinion as an expert?
THE COURT: It's irrelevant.
MR. NEUFELD: All right.
MR. NEUFELD: At Cellmark diagnostics laboratory, Dr. Cotton, is glove changing between each item required to avoid any kind of cross-contamination?
DR. COTTON: Can you be--what do you mean, between each item?
MR. NEUFELD: Well, if a molecular biologist at Cellmark handles one item of evidence, let's say 47, for instance, in our case and does some manipulation with the item using different pieces of equipment and then packs up that item and now takes out a second item of evidence, is the molecular biologist at Cellmark required to change his or her gloves before moving on to the next item?
DR. COTTON: They're not required to and they normally--if they haven't touched the item with their gloves, that is, if they've handled it with forceps or a scalpel or something and they haven't touched it, then they may not change their gloves in between handling the first item and the second item.
MR. NEUFELD: Referring you--you have a protocol you said that has been prepared by Cellmark for the use of all personnel that handles biological items of evidence in the laboratory; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: Dr. Cotton, and there's a section in your written protocol dealing with the handling of evidence during preparation for analysis; isn't that correct?
DR. COTTON: Yes, there is.
MR. NEUFELD: Isn't it a fact, Dr. Cotton, that in that protocol, it states, quote, "Clean disposable gloves must be worn when handling evidence samples. To avoid cross-contamination of evidence, gloves are changed between samples," closed quotes?
DR. COTTON: May I see it, please?
MR. NEUFELD: Certainly.
(Brief pause.)
DR. COTTON: Yes.
MR. NEUFELD: Did I accurately read from your protocol?
DR. COTTON: Yes you did.
MR. NEUFELD: Now--
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: At Cellmark, are the scientists instructed in writing to change the bench paper that is used in manipulating samples in between the handling of each sample?
DR. COTTON: Yes. Excuse me. My voice is getting a little rough. Go ahead.
MR. NEUFELD: And at Cellmark, Dr. Cotton, when your technicians and electrobiologists--your scientists--excuse me--when your scientists manipulate the items with pieces of equipment, isn't it required that they either dispose of the equipment between items or put it into a beaker of bleach?
DR. COTTON: They will either dispose of it if it's a disposable piece of equipment or they will clean it with bleach or alcohol.
MR. NEUFELD: And would you agree, Dr. Cotton, that bleach is a very effect--is very effective at instantly degrading DNA, that is, in breaking it down?
DR. COTTON: Yes.
MR. NEUFELD: And that's the reason why your laboratory uses bleach; is it not?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree, Dr. Cotton, that simply wiping a piece of equipment with a chem-wipe or distilled water will not be as effective as either disposing of the equipment or dropping it into a beaker of bleach?
MR. CLARKE: Objection. Vague. Also beyond the scope.
THE COURT: Overruled.
DR. COTTON: I would prefer wiping it down with bleach or alcohol as opposed to wiping it down with water. Wiping it down with water is better than not wiping it down at all.
MR. NEUFELD: Well, granted. But you would agree, Dr. Cotton, that if you're really concerned with getting rid of any lingering DNA or biological material that may be invisible to the naked eye on a piece of equipment, bleach is a far better tool for doing that than simple distilled water?
DR. COTTON: Well, remember, at that point, you don't have naked DNA. I mean, you still got cells there, and the bleach has to get to the DNA in order to destroy it. So it may be just as effective or may not. I don't really know.
MR. NEUFELD: Do you know anything at all, Dr. Cotton, about whether or not water alone will kill and degrade DNA?
DR. COTTON: No, it won't.
MR. NEUFELD: Okay. Another point that you made, Dr. Cotton, I believe on direct examination is that it is important not to rush these tests; is that correct?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
DR. COTTON: I don't think I said a thing about rushing the tests.
MR. NEUFELD: Well, I think you said to Mr. Clarke that if you had no other cases going on in the laboratory and you were conducting a PCR test from beginning to end, in other words, from the moment you received the samples from an outside law enforcement agency until you get the dots on the strips, that you could get results in as little as a few days I believe you said. And if it's not a few days, please correct me.
DR. COTTON: No. You could get resu--well, if you worked a really long day, you could start one sample at the beginning and get results by the end.
MR. NEUFELD: What's a really long day? What time would you have to start to do that?
DR. COTTON: Well, it's--you know, depends on what kind of DNA extraction you do. Some of them are shorter than others. So if you do a short one and then you set up your amplification--so say your short one took an hour, your amplification set-up takes a half hour, your amplification takes about two and a half hours, what is that? Up to four or so. And then the typing itself takes about two more hours. So--and given that you're taking some pauses in between, if you worked all day, you could get--and you didn't have anything else to do, you could get a type--if you started in the morning, you could get a type by the end of the day.
MR. NEUFELD: How about if you were working with a dozen different items?
DR. COTTON: Uh, well, then it would make your day longer.
MR. NEUFELD: But you could still do it in one day?
DR. COTTON: Yes.
MR. NEUFELD: Have you ever done PCR typing on evidence specimens in groups of a dozen that quickly in your laboratory in actual casework?
DR. COTTON: I don't really know.
MR. NEUFELD: Now, you said that at Cellmark I believe, the room where the evidence is handled, I think you referred to it as, quote, a biological safety cabinet, unquote. Was that the term you used?
DR. COTTON: No. What--what I said was that the DNA extraction was done in a biological safety cabinet. And it's not a room. It's a--it's a thing. It's a piece of equipment.
MR. NEUFELD: And it's called a biological safety cabinet?
DR. COTTON: Yeah, or a hood. Call it a hood.
MR. NEUFELD: And does that hood prevent air flow from outside the cabinet area from coming inside the cabinet area?
DR. COTTON: Yes, it does.
MR. NEUFELD: And what is the reason that you want to prevent air from outside the cabinet area coming inside the cabinet area where you're doing the extractions?
DR. COTTON: Well, in reality--it also prevents what's inside the cabinet from coming outside. And the first reason to use the cabinet is the protection of the analyst because, as most of you probably know, blood samples can contain viruses that can be very harmful. So first reason is to protect the analyst. Second reason is to protect the evidence.
MR. NEUFELD: And when you say, "Protect the evidence," you want to avoid again cross-contamination with this--this biological cabinet; isn't that correct?
DR. COTTON: Yes. It's the area in which the DNA extraction is done. It's not the area--for example, if they--uh, they may handle evidence outside on the bench. For example, they wouldn't handle a hair in the biological safety cabinet because the air flow is sufficient that you might blow it away. So you wouldn't want to do that.
MR. NEUFELD: Is what you're talking about is a laminal flow hood?
DR. COTTON: Yes. A laminal flow hood.
MR. NEUFELD: Thank you. Have you ever inspected the Los Angeles Police Department SID laboratory?
THE COURT: Counsel, sustained.
MR. NEUFELD: And in your laboratory, to avoid cross-contamination, do you do your extractions on evidence at a separate time and place than when you do your DNA extractions on a reference sample?
DR. COTTON: At a separate time, not a separate place.
MR. NEUFELD: And when you say a separate time, how much time is there separated between the extractions?
DR. COTTON: Well, it could be just a matter of minutes if you did one, put it away and then got the other one out, or it could be a matter of days or months, depending on when the various items were actually received.
MR. NEUFELD: And do you keep the extraction of the reference sample separate from the other extractions until you get to the amplification stage?
DR. COTTON: That's right.
MR. NEUFELD: And why do you do that?
DR. COTTON: We did that--we set that up in response to the results that we got on the second group of CACLD proficiency tests where we clearly had some contamination that we couldn't determine precisely where it came from.
MR. NEUFELD: Would it be fair to say that one danger of doing the extraction on the reference sample at the same time that you do the extraction on the various items of evidence is that you could get cross-contamination from the much more enriched DNA in the reference sample?
DR. COTTON: Yes. I think that's what I just said.
MR. NEUFELD: And as a result of that kind of cross-contamination from the more enriched reference sample, couldn't that lead to a false positive in the evidentiary specimens?
MR. CLARKE: Objection. I think this is asked and answered.
THE COURT: Overruled.
DR. COTTON: Yes, it could.
MR. NEUFELD: Okay. Now--by the way, Dr. Cotton, under your own laboratory's procedures, would you extract two different--would you extract samples from two different crime scenes at the same time as one another?
MR. CLARKE: Objection. Beyond the scope.
THE COURT: Overruled.
DR. COTTON: Yes, we might.
MR. NEUFELD: If you were told by the submitting agency, Dr. Cotton, that samples from one location--that samples from one location had much more DNA than samples from the other location, would that influence your decision to extract those samples separately?
DR. COTTON: Well, in general--the answer is no because--but it's because people are asking us to do the DNA test. They're not ever telling us, "You have this much DNA. So now go do your DNA test." Usually we are getting samples because the submitting agency doesn't have the same capabilities as we do.
MR. NEUFELD: Well, would you like to know before you decide whether these samples should be extracted together or separately whether some of the samples have much more blood on them than other samples?
DR. COTTON: Well, you might like to know that, but that's almost all the time not possible to know unless you're looking at the physical size. You have a stain that's a foot versus a stain that's an inch, obviously it's likely that the big one will have more than the little one. But apart--and then you wouldn't use the whole big one anyway. You would cut out a small piece. So--
MR. NEUFELD: So, for instance--
MR. CLARKE: I'm sorry. Could the witness finish her answer?
THE COURT: Yes.
DR. COTTON: So most of the time, you simply can't know that because you don't know how much DNA there is on the stain just by looking at it.
MR. NEUFELD: For instance, in this case, Dr. Cotton, there's been testimony that when item 12 was collected from inside the foyer of Mr. Simpson's home, there was a collection of three drops of blood as opposed to the stains at Bundy, which were taken from a single drop of blood. Is that a factor that you might wish to know or might consider in determining whether or not the extraction should be done at the same time or done separately?
DR. COTTON: No.
MR. NEUFELD: One moment, please.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Just to go back one step for a moment, Dr. Cotton, you were mentioning the laminal flow hood that you have in the room where you do the extraction for DNA?
DR. COTTON: Yes.
MR. NEUFELD: Is the purpose of that laminal flow hood to create literally a wall of air which separates the rest of the room from that work area?
DR. COTTON: Yes.
MR. NEUFELD: It's not the purpose of a laminal flow hood to simply pull air from the lab into the work area and then outside, is it?
DR. COTTON: No.
MR. NEUFELD: Dr. Cotton, you said sometimes the submitting agency can't give you information about relative quantities of DNA because that's why they're submitting it to you for testing; is that correct?
DR. COTTON: That's right.
MR. NEUFELD: But there have also been instances, have there not, Dr. Cotton, where the submitting agency itself has conducted DNA testing on the same items or some of the same items even before it is given to you? Isn't that correct?
DR. COTTON: That's right.
MR. NEUFELD: And do you know whether in this case, LAPD had in fact conducted DNA testing on some of the same items that they gave to you before they sent them to you?
MR. CLARKE: Objection. Vague. Vague as to "Items."
THE COURT: Overruled. Are you aware of that?
DR. COTTON: I'm vaguely aware that they may have done some testing. I don't have any information on what items--that I recall having anyway, on what items had been or had not been tested. We did not--
MR. NEUFELD: I'm sorry.
DR. COTTON: We did not receive any DNA, extracted DNA from LAPD.
MR. NEUFELD: Well, assume for purpose of this hypothetical that the Los Angeles Police Department had in fact the--as of June 14th, run PCR tests on every single one of the Bundy drops.
DR. COTTON: Okay.
MR. NEUFELD: As a result of that--
MR. CLARKE: Excuse me. Objection. Improper hypothetical.
THE COURT: Sustained.
MR. NEUFELD: All right. Assume hypothetically, for purpose of this hypothetical, that the Los Angeles Police Department had run PCR testing on items 47, 48, 49, 50 and 52. Okay?
DR. COTTON: Okay.
MR. CLARKE: Again, objection. Improper hypothetical.
THE COURT: Sustained.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Assume for the purpose of this hypothetical that the Los Angeles Police Department had run PCR testing from beginning to end on items 47, 48, 49, 50 and 52 before--
MR. CLARKE: Same objection.
THE COURT: Sustained.
MR. NEUFELD: --before they were ever sent to you?
MR. CLARKE: Objection. I'm sorry, your Honor.
THE COURT: Sustained.
MR. NEUFELD: May I have a sidebar, your Honor?
THE COURT: Proceed.
MR. NEUFELD: Dr. Cotton, if a laboratory had done PCR typing on the samples that they were submitting to you, wouldn't you want that laboratory to provide you with as much information as possible about the quality and quantity of those samples?
MR. CLARKE: Same objection, your Honor.
THE COURT: Overruled.
DR. COTTON: It really probably wouldn't make any difference because we would be doing that assessment as we went along.
MR. NEUFELD: Well, would you agree that you do not want to process or do extractions at the same time of samples that have very, very little DNA with samples that may have relatively large amounts of DNA? Would you agree with that?
MR. CLARKE: I'm sorry. Objection. Vague.
THE COURT: Overruled.
DR. COTTON: If there was a way to know that, then--and depending on the differences in amounts--
MR. NEUFELD: Right.
DR. COTTON: --you might try to not do the extractions at the same time. But for the most part, there isn't a way to know that and--never--I'll stop there.
MR. NEUFELD: Well, one of the ways that you knew it is, you can do a yield gel, correct?
DR. COTTON: Yes.
MR. NEUFELD: Another way you can do it is, you can do a slot blot, correct?
DR. COTTON: Yes.
MR. NEUFELD: So if the submitting agency had done some of those tests to quantify and to give a qualitative assessment of the DNA, wouldn't that be useful information for you to have in advance if in fact some of the samples had much more DNA than other samples?
MR. CLARKE: Objection. Irrelevant. I think asked and answered.
THE COURT: Sustained. Did you have any information about any prior testing in this case prior to Cellmark doing its testing.
DR. COTTON: Not that I remember.
THE COURT: Thank you. Proceed.
DR. COTTON: With the exception of the DOJ samples that we got as extracted DNA. We did receive information on quantitations on those samples.
THE COURT: Proceed.
MR. NEUFELD: When you say you didn't receive any information, Dr. Cotton, you're not saying there wasn't any information. You're just saying that nothing was communicated to you; is that correct?
DR. COTTON: That's right. I have no idea whether there was or was not any information.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: In fact, Dr. Cotton, doesn't the user's guide, the manufacturer's user's guide for the kits that you use for PCR typing explicitly state that to perform DNA extractions from samples containing high levels of DNA separately from those samples containing low levels of DNA?
DR. COTTON: Are you talking about the ampli-type guide?
MR. NEUFELD: Yes.
DR. COTTON: It may say that in there. I don't remember exactly, but--you know, it's a pretty big book. But I wouldn't be surprised.
MR. NEUFELD: And if it said that in bold type in the book, would you take that to mean that that was the strong recommendation of the manufacturer of the kit that you're relying on?
MR. CLARKE: Objection. Assumes facts not in evidence.
MR. NEUFELD: Well--
THE COURT: Overruled. Overruled.
DR. COTTON: It might be the strong man recommendation of the manufacturer of the kit. However, the manufacturer of the kit is not a group that's engaged in routine forensic DNA typing. So --
MR. NEUFELD: Was this kit--
MR. CLARKE: I'm sorry. Could the witness finish her answer?
MR. NEUFELD: I thought she had. I apologize.
DR. COTTON: So a laboratory with some experience might--like any recommendation, might decide to accept that recommendation or not accept it.
MR. NEUFELD: Isn't there a statement actually on the kit by the manufacturer that this kit is designed for forensic application?
DR. COTTON: That's right. But the manufacturer of the kit is not a forensic DNA lab.
MR. NEUFELD: To your knowledge--
MR. CLARKE: I'm sorry. Could the witness finish her answer, please?
DR. COTTON: I'm done.
THE COURT: All right. Proceed.
MR. NEUFELD: Isn't the kit explicitly and expressly warranted to work only if you follow the directions on the kit? Isn't that a warranty given by the manufacturer?
DR. COTTON: Yes. But that's in terms of the salt solution concentrations and the temperature and the quantitation, that is the amount of DNA you add. There's no specific directions they can give you to ensure that the rest of your handling is good or bad. They can only tell you if you have the thing at 60 degrees, it will work, and if you don't, it won't.
MR. NEUFELD: So is it just--so I'm clear on this, is it your position that the expressed instruction from the manufacturer that you are, quote, "To perform DNA extractions from samples containing high levels of DNA separately from samples containing a low level of DNA" is something that the people who utilize this kit are free to ignore?
DR. COTTON: Yes.
MR. CLARKE: Excuse me. Objection. I'll withdraw the objection.
DR. COTTON: Yes. And I mean there--what's high and what's low? I mean, this is going to be the judgment of the people in the laboratory. That's not a specific instruction. It's a vague instruction.
MR. NEUFELD: Granted, Dr. Cotton, what's high and what's low is something that has to be determined by the particular laboratory. But once that assessment is made as to what is high and what is low, wouldn't you agree that it's critically important to follow the instruction that once--that that what you consider a high level of DNA should not be extracted at the same time with that what you consider a low level of DNA?
MR. CLARKE: Objection. Asked and answered and I think counsel is arguing with the witness.
THE COURT: Overruled. We have asked this question. Again, I'll allow the question and answer one last time.
DR. COTTON: I have stated I think earlier that when--depending on how great a difference in amount of DNA you have, if it's a very great difference, then one would prefer if you were able to know ahead of time to deal with the large amounts of DNA or evidence that had a large amount of material on it separately from the smaller amount, and that's a relative decision for any specific laboratory.
MR. NEUFELD: Is the manufacturer of the kit the same entity that designed the validation studies for that kit?
DR. COTTON: Well, they certainly did a lot of validation studies, but they are not the only group that did validation studies using that kit.
MR. NEUFELD: Now, you mentioned in terms of your testing of items in this case that one of the items you were asked to do DNA profiling was the steering wheel inside the Bronco; is that right?
DR. COTTON: Uh, from one item of evidence, from the--I don't know if there's more than one item of evidence from the steering wheel. So--we had an item of evidence from the steering wheel.
MR. NEUFELD: And that one item of evidence was a blood swatch taken from a smear on the steering wheel; is that correct?
DR. COTTON: That's right.
MR. NEUFELD: Help me get the board.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, would you agree, Dr. Cotton, that interpreting mixed stains is a more demanding challenge to the forensic laboratory than interpreting a stain that only has a single source?
DR. COTTON: Sure.
MR. NEUFELD: And when you see more than two versions of a particular gene, that enables you to determine that there's more than one contributor to that stain, correct?
DR. COTTON: Yes.
MR. NEUFELD: However, if you see three or four versions of the gene, you can't necessarily tell whether there's been two contributors or three contributors or more contributors; isn't that correct?
DR. COTTON: That's exactly right.
MR. NEUFELD: And that's one of the difficulties in interpreting mixed stains?
DR. COTTON: Yes.
MR. NEUFELD: And with respect to the stain removed from the steering wheel of Mr. Simpson's Bronco, your DQ-Alpha typing method showed the presence of three different alleles; is that correct?
DR. COTTON: That's right.
MR. NEUFELD: And I think you said yesterday, the day before that and the day before that one should only inherit two versions of a gene; isn't that correct?
DR. COTTON: Yes, except under very rare circumstances. So we'll just assume two.
MR. NEUFELD: All right. So certainly, Dr. Cotton, each of the individuals who you typed in this case as reference samples, namely, Mr. Simpson, Nicole Brown Simpson and Ronald Goldman, each had only two alleles for the DQ-Alpha marker?
DR. COTTON: Yes.
MR. NEUFELD: And when you typed the DQ-Alpha markers--I'm sorry. When you typed that stain on the steering wheel, you found that there were three separate DNA types, correct?
DR. COTTON: Yes, we did.
MR. NEUFELD: You found the 1.1 version of the gene present, right?
DR. COTTON: Yes.
MR. NEUFELD: You found the 1.2 version of the gene present, correct?
DR. COTTON: Yes.
MR. NEUFELD: And you found the number 4 version of that same gene present?
DR. COTTON: Yes.
MR. NEUFELD: And initially on this board that you saw, the Prosecution had written that the only one of the three people not excluded was Mr. Simpson, correct?
DR. COTTON: Yes.
MR. NEUFELD: But I take it you did not help the Prosecution prepare this exhibit board, did you?
DR. COTTON: I saw some of the boards to make sure that they were right and I don't know if I--I--I don't remember if I saw this one. I may have. I might have.
MR. NEUFELD: But the reason--
DR. COTTON: But there was a mistake on it.
MR. NEUFELD: Okay. And the reason--looking up at the top, you said that Mr. Simpson is of a--
MR. NEUFELD: Can everyone see the top?
MR. NEUFELD: Okay. Looking up at the top, that Mr. Simpson is a type 1.1, 1.2?
DR. COTTON: Yes, he is.
MR. NEUFELD: And you can see a 1.1, 1.2 in this mixture?
DR. COTTON: Yes.
MR. NEUFELD: And that's why he's included?
DR. COTTON: Well, and the poly-marker data as well.
MR. NEUFELD: Fine. Well, actually on the poly-marker data if you look at it, isn't every different version of every poly-marker included in this mixture?
DR. COTTON: Uh, I don't remember without going back and looking.
MR. NEUFELD: Please take a look.
DR. COTTON: What's the--we're at 29.
MR. NEUFELD: 29.
DR. COTTON: Okay.
(The witness complies.)
DR. COTTON: Yes. You're correct. There are--all the possible alleles for the poly-marker are present in that sample.
MR. NEUFELD: So in fact, if you just looked at the poly-markers and nothing else in this case, you would have to say that there would be almost no useful information in the poly-marker results because the entire human population could have contributed to that mixture?
DR. COTTON: Assum--yeah, assuming all the intensities were--of the dots were--assuming the dot intensities weren't informative, and I don't recall that they are.
MR. NEUFELD: Okay. So the key information here in this particular case for you was not the poly-marker results, but rather DQ-Alpha results?
DR. COTTON: For this sample.
MR. NEUFELD: Yes. And not only were you able to not exclude Mr. Simpson, but you were not able to exclude Nicole Brown Simpson; isn't that right?
DR. COTTON: That's right.
MR. NEUFELD: And that's because Nicole Brown Simpson is a DQ-Alpha type 1.1, 1.1, right?
DR. COTTON: That's right.
MR. NEUFELD: Meaning that she inherited the same version of the gene from her mother and her father?
DR. COTTON: Exactly.
MR. NEUFELD: And so because you see the 1.1 allele present in this mixture, that 1.1 allele could simply be two copies of--of the DQ-Alpha typing from Nicole Brown Simpson?
DR. COTTON: Yes.
MR. NEUFELD: However, you in fact excluded Ronald Goldman as a contributor to this mixture; isn't that correct?
DR. COTTON: Yes, we did.
MR. NEUFELD: And the reason you excluded Mr. Goldberg as a contributor to this mixture is that Ronald Goldman is of a type 1.3, 4, correct?
DR. COTTON: That's right.
MR. NEUFELD: And what that means is is that Ronald Goldman, his DQ-Alpha type has two alleles in it which are different from one another, correct?
DR. COTTON: That's right.
MR. NEUFELD: One of his alleles is a 4 allele, right?
DR. COTTON: Yes.
MR. NEUFELD: One of his alleles is the 1.3 allele, correct?
DR. COTTON: Yes.
MR. NEUFELD: And so if this sample contained a portion of Ronald Goldman's blood or biological material, you would also expect to see the 1.3 allele and not just the 4 allele?
DR. COTTON: Yes.
MR. NEUFELD: And it was on the basis of that that you excluded Ronald Goldman as being one of the contributors to this mixture?
DR. COTTON: That's exactly right.
MR. NEUFELD: So would you agree, Dr. Cotton, that based on your analysis, that the number 4 allele that you see present in this mixture from the steering wheel must come from someone other than Mr. O.J. Simpson, Nicole Simpson Brown and Ronald Goldman? Isn't that correct?
DR. COTTON: I would.
MR. NEUFELD: Now, this other person--
MR. NEUFELD: Let me just get out my diagram.
(Brief pause.)
MR. NEUFELD: Do we have the other small easel? Barry, help me, please.
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Scheck, perhaps we ought to move that over here because that one height wise is hard to see unless it's in the middle.
MR. SCHECK: This is not my area. I've established that.
THE COURT: So stipulated. All right. Mr. Neufeld, can you work with this?
MR. NEUFELD: Given my art work, I'm sure it will be adequate.
THE COURT: All right. Mr. Scheck, you may need to--Mr. Scheck, don't go away. You may need to steady that.
MR. SCHECK: All right.
MR. NEUFELD: You can do better than that. Can't you make it straight? Only a Californian could teach a New Yorker how to do that.
MR. NEUFELD: All right. Dr. Cotton, now, this third person who cannot be Mr. Goldberg and cannot be Nicole Simpson, Nicole Brown Simpson and could not be Ronald Goldman, who has--we'll call him--all right. We'll call him actually the fourth person because he's none of the three people whose reference samples you tested, all right?
MR. CLARKE: Objection. Vague.
THE COURT: Overruled.
MR. NEUFELD: This fourth person has the 4 allele, correct, has one of his two or one of her two alleles, correct?
DR. COTTON: Well, yes, if we assume a person in there has a 4 allele.
MR. NEUFELD: Okay. Let's start with the most simple assumption first. All right?
DR. COTTON: Okay.
MR. NEUFELD: Now, this person who has the 4 allele also has two alleles, inherited one from his mother and one from his father or one from her mother and one from her father, correct?
DR. COTTON: Yes.
MR. NEUFELD: And so this person could have different possible genotypes as well, correct?
DR. COTTON: Of course.
MR. NEUFELD: This person could be, given the presence of the 1.1 and 1.2, could have as a genotype a 1.1, 4, correct?
DR. COTTON: Yes.
MR. NEUFELD: This person could have as a--I'll move in a second. I'm sorry. This person could have as a genotype a 1.2, 4. Woops. All right. A 1.2, 4, correct?
DR. COTTON: Yes.
MR. NEUFELD: And this person--and this person could also have inherited the same version of the gene from both parents and be a 4,4, correct?
DR. COTTON: Yes.
MR. NEUFELD: Okay. And those are three possible explanations for a genotype for a third--for a fourth person if the fourth person contributed the number 4 allele, correct? Those are the possible--
DR. COTTON: Those are the three possible--those are the three possible genotypes for a person in that mixture if that person's first allele is a 4.
MR. NEUFELD: Okay. Now--
MR. NEUFELD: You can take that down. Oh, what would be next in order, your Honor?
THE COURT: That would be 1150.
(Deft's 1150 for id = chart)
MR. NEUFELD: Now, Dr. Cotton, I'm going to ask you a hypothetical, and I'm going to ask you whether or not that hypothetical is consistent or inconsistent with the observed evidence in your laboratory. Assume that Mr. Simpson cut himself in his home and walked out to the Bronco to get something from his car and bled in his own Bronco.
MR. CLARKE: Objection. I'm sorry.
THE COURT: Sustained.
MR. NEUFELD: Assume, Dr. Cotton, that some of Mr. Simpson's blood is in his own car.
MR. CLARKE: Same objection, your Honor.
THE COURT: Overruled.
MR. NEUFELD: And assume, Dr. Cotton, that some other person other than Mr. Goldman, other than Nicole Brown Simpson, other than O.J. Simpson had come into contact with the blood of Nicole Brown Simpson and then entered that Bronco and made a smear on the steering wheel, having touched Mr. Simpson's blood--
MR. CLARKE: Same objection, your Honor.
THE COURT: Sustained.
MR. NEUFELD: Dr. Cotton, if somebody else who is either a type--a DNA type 4, 1.1 or 4, 1.2 or 4, 4 touched Mr. Simpson's blood and touched Nicole Brown Simpson's blood and touched that steering wheel, would that be consistent with the stain you found on the wheel?
MR. CLARKE: Objection. Improper hypothetical.
THE COURT: Sustained. The jury is to disregard the implication of the question. All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions to you; do not discuss the case amongst yourselves, don't form any opinions about the case, do not conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. Have a pleasant weekend. Enjoy the activities. See you Monday. All right. We'll stand in recess until 1:45.
(At 12:00 P.M., the noon recess was taken until 1:45 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; FRIDAY, MAY 12, 1995 1:45 P.M.
Department no. 103 Hon. Lance A. Ito, Judge appearances: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.) (Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record. Mr. Simpson is present with counsel, Mr. Blasier, Mr. Scheck and Mr. Neufeld, People represented by Miss Lewis, Mr. Clarke and Mr. Harmon. The jury is not present. And previously, there had been raised a discovery, I guess Griffen issue regarding continued testing at DOJ. And, Mr. Scheck, since you raised the issue, do you want to advise the Court of the nature of your--
MR. SCHECK: I think my concerns could be simply stated I think it's close to two months ago--it's hard for me to remember--before the examinations of the criminalists began, and Mr. Harmon requested to combine all the samples in the Bronco, 303, 304, 305, of which 303 and 304 being stains that were in the location originally of 30 and 31, and they took all of it, 30, 31, 303, 304, 305, gave notice to the Court and asked for permission to combine them altogether to do RFLP testing. And I think that--we all believed that they were going to commence with that soon after giving us notice.
THE COURT: Immediately if not sooner.
MR. SCHECK: Immediately if not sooner. And the concern that I expressed at that time and plainly the reason for the testing is that there's ambiguity with respect to the test results on these combined stains in the Bronco. And I think Mr. Harmon indicated--the Prosecution indicated that they wanted to combine all these stains to do RFLP testing to get more information and greater clarity with respect to the results one way or the other to exclude or include various individuals in terms of having greater information.
THE COURT: All right. Well, let's assume, Mr. Scheck, what you say is true. What do you want me to do about it and why?
MR. SCHECK: Well, I think that the problem is that since they have not even begun testing--and we know that the combined samples is something on the order of 72 nanograms of DNA total I think at best--that this particular form of RFLP testing is going to take between four and seven weeks because what's going to have to occur if we're going to get results is laying the autorads for long exposures. So this is in my judgment a tactical decision by the Prosecution to gain an advantage in terms of possible cross-examination of the witnesses and then rebuttal case. It's just more of what I think has been going on all the way through which we've complained about to the Court from the beginning, but this is--this I think is extreme. This is now at the point where it's very clear that this was done not in good faith, but for purposes of obtaining a forensic ambush in this trial if that were to occur. It also precludes the Defense from having any access to the samples during these periods of time if they were not going to engage in this testing. So I think it presents a discovery problem. The cases that we discussed long ago--
THE COURT: Well, Mr. Scheck, let me redirect your thought process. Let's assume that everything you said so far is true. All right. What do you want me to do about it and what's the legal basis for doing that?
MR. SCHECK: The problem is, the only relief at this point is preclusion. I don't know of any other real remedy for this at this point in time by the way they set it up.
THE COURT: So you want me to make--on the basis of this, you want me to make a finding of bad faith and based upon that, preclusion of any results?
MR. SCHECK: Yes.
THE COURT: All right. Mr. Harmon. Good afternoon, sir.
MR. HARMON: Good afternoon, Judge. Now that the jury has seen the kind of evidence we have, the ambush already happened, and the overwhelming mountain of DNA evidence has begun to cascade right where it belongs, on Mr. Simpson. While it may have been intriguing and entertaining back in October whenever these discussions happened before I started coming down here, that our tactics, our--which our tactical decisions precluded them access to the DNA evidence in this case, you are aware and they are aware that they have never gotten one of the many, many remaining swatches in this case to test for DNA typing. If they have, it's news to me, which is always possible, but I'm not aware of it. So we can cross that one off the list as a good faith argument. Nobody's precluded them access. There's a bunch of stuff over at LAPD SID that we would love to have them test for DNA typing. So let's strike that from our agenda. Practically speaking, although no objection has been made, Mr. Sims is going to have to come back after this chunk of his testimony because there are tests specifically on 117 that have been going on for quite some time that haven't been reported. And while Mr. Scheck hasn't projected to me presenting--he doesn't mind me objecting to having Mr. Sims present them when he testifies hopefully next week, even though he hasn't gotten the reports, but he knows what the results are. I would be happy to do that. I would like to finish him in one session, but I know that's--it's not fair because we don't have a report. So Mr. Sims--
THE COURT: One session or one sitting?
MR. HARMON: I misspoke there. One lifetime maybe.
THE COURT: You got my hopes up.
MR. HARMON: Mr. Scheck as part of this bad faith said--I wrote this down--"They have not even begun testing." And I'm as shocked to hear that as I'm sure Mr. Sims is. They've begun testing. They just haven't begun the part of the testing that he's dying to know if the other shoe is going to drop out of. So the testing has begun. Mr. Sims has a life. The DOJ lab has a life independent of this case. You know, aside from my--those are my normal comments that have nothing to do with the legal issues. There is no legal issue that allows them to do what they've asked you to do here. They have consistently whipsawed the Defendant's right to a speedy trial and said, "But this isn't fair. We're never going to know." And if they waited, they would have known all this ahead of time and maybe rethought their tactics in this case as the DNA tests unfolded. But the fact of the matter is, they chose when to go to trial. And we have done fairly well. No case has ever had the amount of DNA evidence analyzed as has this case. So I think the Court realizes that at this point, the arguments that we have precluded them access or this will continue to preclude them access to evidence, when--except for the intriguing 47, 50 and 78 that weren't done for DNA testing, they've never done any DNA testing on any of the evidence. That's not a sincere argument. But there's simply no legal basis for it. I wish we were done. Mr. Sims wishes he was done. Unfortunately, once you step out of this courtroom and out of this building, there's a whole world and a life out there and everybody has to balance--except for us, everybody has to balance that, and we're just stuck in this for the time being. So there's no legal basis. If they hurry up with their cross-examination of witnesses, maybe we wouldn't get around to testing and there wouldn't be any ambush. But, you know, the lengthy cross-examination that we saw in April just makes it easier to finally get around to the last set of tests--and that's about the last set of tests. So if they were concerned about it, maybe they should have cut off some of their cross-examination and precluded us from practically being able to get to these results. Thank you.
THE COURT: Mr. Harmon, when did the actual combined RFLP testing begin?
MR. HARMON: Mr.--what's your name--Clarke has a recollection that it was April 3rd. Mr. Sims is--could I ask him? He's got his notes here. I just didn't bring them here. Because we had those discussions--and I can tell you that things have been done towards the typing.
THE COURT: All right. The record should reflect that present in the audience is Gary Sims, Department of Justice. Good afternoon, Mr. Sims.
MR. SIMS: Good afternoon, your Honor.
THE COURT: Do you have your notes regarding the commencement of that RFLP testing?
MR. SIMS: Yes, I do.
THE COURT: All right. Can you tell me the date?
MR. SIMS: I will.
THE COURT: All right.
MR. SIMS: I think also, your Honor--and can I just speak from here?
MR. SCHECK: I would welcome him to define it. I'm only going based on what Mr. Harmon told me and nothing else. And the original source is Mr. Sims and I welcome any of his remarks and I'm sure they're completely accurate.
MR. SIMS: I remember there was first a legal hurdle we had to overcome and a declaration in which I said that I would save swatches, which I did. And I don't remember the exact date of that declaration. Then that was litigated and then the samples came back up to us looks like on March 9th. March 9th was when we started--we got some of those samples back and we wanted to do additional tests on. And the actual completion of the tests that we did to the extraction, we did some DQ-Alpha typing, et cetera, on those, and that--we put it in quantitation with some other things, and that was completed about early April. So since sometime in early April.
THE COURT: Can you pin it down a little closer than early April? And, Mrs. Robertson, could you find the motion with regards to--the Prosecution's motion to--for permission to combine those items for testing? And the declaration by Mr. Sims should give us some idea as to where we are.
MR. HARMON: Your Honor, I don't think we filed--
THE COURT: Hold on.
MR. HARMON: --a formal motion.
MR. SIMS: Your Honor--
THE COURT: It was a declaration.
MR. SIMS: The note I had would be April the 4th. My notes say--this is on page 339--239 of my lab notes--April 4th, `95, DNA, 30, 52, 53. Those are those three combined samples, proceed to RFLP. So April 4th.
THE COURT: April 4th. And, Mr. Sims, when do you anticipate having final results and completing a report as to that test?
MR. SIMS: For that particular sample, maybe we can only get a few probes off. So we may have to go with some partial information as far as the probes and we can see.
THE COURT: When do you anticipate knowing the results?
MR. SIMS: The process itself takes several days as far as restriction gel and blotting. And then we'll also of course have to have the probing done. So I would think we've probably got maybe a month and a half of work, something like that.
THE COURT: Still to go?
MR. SIMS: Yes. Maybe two.
MR. SCHECK: Aren't we going to be done by then? That was my hope.
THE COURT: Well, we may have preclusion by passage of time. All right. Mr. Sims, do you happen to have in your case notes there a copy of your declaration?
MR. SIMS: I don't think I do, your Honor.
THE COURT: All right. Then I'll have the clerk find that. I just want to get the declaration so I can place our legal discussions in context time wise. All right. Mr. Scheck, any other comment?
MR. SCHECK: Yes. Just one. I just note for the record that I don't want to violate any of the Court's rules with respect to making comments. I'm trying very hard, and Mr. Harmon has a very colorful way of expressing himself, and I'm not amused. The--and I will not take the bait of answering all these things, but I want the Court to know I'm not amused. There's one thing that does require note. Once again, Mr. Harmon is making statements about what he knows the Defense did or did not do in secret testing. That motion is still before the Court. That record is still before the Court. I don't think those are proper comments. I don't know how he knows any of this, and I'm very concerned about it. And I would call the Court's attention--and I will file a letter memo on Monday--to the case of County of Los Angeles versus Superior Court at 222 Cal. App. 3d. 647. Since it's my opinion, if the Court consults that authority, that Mr. Harmon's previous admissions in our discussions of his efforts to find out about privileged communications and testing if any was done by the Defense, already by his own admissions is unethical, violates rules and actually merits the sanction of recusal from the case. I haven't said we're going to ask for that with respect to Mr. Harmon, but it's serious. And I don't think he seems to understand that. And he did it again today.
THE COURT: All right. Thank you, counsel. What I will need to do is review the record with Mrs. Robertson to determine the actual dates of the declaration filed by Mr. Sims and then rule after I have that information available to me. Mr. Clarke, you mentioned something earlier this morning that we needed to resolve. Clarke. That's you.
MR. CLARKE: Actually, I wasn't looking to remember who I was.
THE COURT: All right.
MR. CLARKE: I'm trying to recall what we had left. I thought--
(Discussion held off the record between the Deputy District Attorneys and Defense counsel.)
THE COURT: All right. Anything we need to do on--Mr. Blasier, you're raising the issue regarding Dr. Weir's--
THE COURT: Mixed samples calculation. Mr. Thompson is prepared to present our position on that, if they're ready to talk about this.
MR. CLARKE: I thought we were going to go through this phase with Dr. Cotton and then she was going to have to return anyway because of the Court's sustaining the objection as to foundation on, for instance, frequency calculations including the Department of Justice.
THE COURT: Uh-huh.
MR. CLARKE: As well as there are some other issues that relate to results from the Department of Justice that I was going to ask Dr. Cotton about. So I may have been under the wrong--
THE COURT: All right. So you were not anticipating presenting this until Robin Cotton, round 2?
MR. CLARKE: Exactly. Because there is a number of pieces of information that need to be looked at as far as to calculate these frequencies. This was done in very much a rush, and frankly, I don't think--it's been too fast to be able to present this information properly or to calculate it properly. So Dr. Cotton is still working with Dr. Weir to be able to calculate those frequencies. I'm not trying to give the Court the impression we don't plan on doing that. We do, but it's not as simple as taking a few days to calculate this as it turns out.
THE COURT: All right.
MR. NEUFELD: Well, your Honor, two things. One is--
THE COURT: Well, wait a minute. Who's going to address the issue? Mr. Thompson, Mr. Blasier or Mr. Neufeld?
MR. NEUFELD: Professor Thompson is going to address the actual numbers that were presented by the Prosecution in a memo written by Dr. Bruce weir. All I wanted to do was remind the Court on a preliminary level procedurally that it was your ruling not that they were going to wait to present numbers at some other occasion on some other date if and when Dr. Cotton returns to Court. It was the Court's ruling that they were compelled to produce some number which aggregates the respective frequencies in the population of all those people who were not excluded. And I--the issue is not whether they use a product rule or a silly pencil. They can use whichever one of those numbers they deem appropriate given the outcome of the Frye issue here, but that they had to produce a number. And that it was decided by agreement I believe at a sidebar that the way it would be done, since we couldn't conclude that issue on what the number was before I commence cross-examination, that he would be permitted, while Dr. Cotton was here these couple of days, to reopen his direct examination just for that limited purpose. And so he would either do it as a reopen or he would do it during the course of redirect. And what I said is, and he agreed to that point, that I was not going to comment on his failure to put on any of those numbers during the direct.
THE COURT: But here's the other problem though. We know the scheduling problems we have with Dr. Cotton. We know the--now Mr. Clarke is indicating to me that he's not ready to present these numbers. I can't force him at this point--if he wishes to recall a witness during the course of his Case in Chief, he's entitled to do that.
MR. NEUFELD: One second.
(Discussion held off the record between the Defense attorneys.)
MR. NEUFELD: What I would ask to be able to do at this point, your Honor, if that's the Court's feeling about this--I mean frankly in terms of scheduling, I don't think it's a big problem. As I informed the Court earlier today, I will finish my cross-examination on Monday. And now in fact, you've said it on the record and in open court as well. So it's no longer a confidential matter. But I do make that representation. And she has to finish by Wednesday I believe with her schedule. So certainly that's more than enough time for redirect as well as to handle any anticipated problem with these numbers, and I think--
THE COURT: Well, let's see where we are. Mr. Clarke, when are you going to have your final numbers calculation? When do you think?
MR. CLARKE: I don't know the answer to that. It's a much more complex task than it might seem on its face, and the two of them are working together quite a bit, I mean extensively in the time that's been available over the last few days. I can ask Dr. Cotton how long she anticipates that will take. But I don't want to be in the position of having to produce all of a sudden a frequency, frequency that's the product of rushing, and then all of a sudden it's attacked because it was forced--you know, it was compelled to be done and it wasn't examined sufficiently.
THE COURT: Uh-huh.
MR. CLARKE: So whether under a misapprehension or not, I think the additional time will help ensure the accuracy of those numbers, but I would like to ask Dr. Cotton how long she anticipates is needed.
THE COURT: All right. How long will it take you to contact Dr. Cotton? Can you do it right now?
MR. CLARKE: I believe so.
MR. NEUFELD: I just wanted to remind the Court of one other thing. It was a week ago that you had asked Mr. Clarke to have those numbers ready just in case that was your ruling. So they've had a week to prepare those numbers in anticipation of the Court's ruling. So it's not something that was a rush to judgment if you will. It's something where they had plenty of time to process it. And, you know, in all due respect to what's involved here, I don't believe, for instance, with item 29, for instance, it takes days or weeks or even hours to answer the question that's posed in the national academy of science NRC report. It's simply aggregating the frequencies of that portion of the community that can't be excluded.
THE COURT: All right. Let's take five minutes. And, Mr. Clarke, why don't you give Dr. Cotton a call and let's see when we might anticipate--because I would like to wrap that aspect of it up, this round if we can.
MR. CLARKE: Very well.
THE COURT: Okay.
MS. LEWIS: Your Honor, may I be heard?
THE COURT: On what?
MS. LEWIS: On something unrelated to this.
THE COURT: All right.
MS. LEWIS: Maybe just to set a time for scheduling because I know Mr. Cochran is not here and Mr. Douglas is not here. This morning, the Prosecution was provided with some additional discovery and a supplemental Defense witness list which includes about a dozen new names. For a few of these people, there--the discovery which was provided is just in the nature of rough notes which are incomprehensible. There are no dates of allegations. Apparently, they contain allegations. We can glean that much. But this is incomplete discovery, and it's brought up to the fore a problem we've been wanting to address for a while in terms of incomplete Defense discovery. And that is that on the combined Defense witness list, there is over 50 people still on their witness list excluding American Airline passengers on the flight to Chicago, which is quite a few people by itself. Excluding that, there is still over 50 people on their witness list for whom they have not provided discovery and we never initially provided discovery to them. So while there are a number of witnesses who we can kind of glean the nature of what they would be testifying to based on discovery we provided to them at an earlier point in time, such as some of the police officers, there are quite a few witnesses that we've never heard of and we know nothing about. And it's becoming difficult to believe that there has not been Defense investigation culminating and some kind of statements from these witnesses. So I have a list of those. I was hoping Mr. Douglas would be present this afternoon so that I could ask him about it. Perhaps I could lodge that list with the Court and fax a copy to the Defense, because it's certainly getting to the point where we're getting very close to the Defense case and we don't have discovery on a lot of their supposed witnesses. Maybe they're people who they are going to be taking off their witness list, but if that's the case, they should be doing that.
THE COURT: All right. Why don't you lodge a list with the Court, send a letter to Mr.--fax a letter to Mr. Douglas this afternoon, advise him of your concerns, and if it's necessary, we'll set it for a hearing.
MS. LEWIS: All right. Thank you, your Honor.
THE COURT: All right. Okay. Let's take a five-minute recess. Mr. Clark, why don't you chat with Dr. Cotton.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record. Mr. Clarke, what's your report?
MR. CLARKE: Yes. Dr. Cotton informs me that she will be able to do that, as far as be able to report those results, Monday.
THE COURT: Okay.
MR. CLARKE: I think we do have to approach at least one item with respect to those numbers though in terms of what's going to happen in court. I don't think there's a problem with PCR markers. Dr. Cotton testified that that method in fact can be used of summing up these various genotype frequencies. As to the RFLP reports, that is the mixture on the boot stain, item no. 78, they don't believe--that is, Dr. Cotton doesn't believe it's appropriate to assign a frequency. It can be done, but I hope the Court isn't under the impression that when she testifies about numbers as to that particular item, that in fact she's going to represent that as this is an appropriate way to do it in the face of what I anticipate is going to be a Defense attack on those numbers. So it's a difficult situation at best. And perhaps the Defense can tell us what number they would like to see attached, for instance, to that mixture on item no. 78 and perhaps we can agree to it.
MR. NEUFELD: Your Honor, the problem is, which is what the NRC report says and which the Court accepted, is that you can't present the DNA evidence of a match or even a consistency without a probability. If the People feel that they cannot produce a number for those items, then they have no business producing the suggestion that there's a match in the first place. That's what the scientific community says. That's what the law is in the State of California and that's what should have happened here. And to that extent, your Honor, I believe that, you know, it isn't fair on a very fundamental level. If they have a number that they intend to introduce with each of these items, we would like to hear the number obviously outside the presence of the jury first so we can at least question it because frankly, if it's a number just pulled out of thin air, obviously it would be inadmissible, and there may be other grounds for precluding that number and compelling them to go back to the drawing board to produce another number. But I am somewhat concerned that being the law and you making a decision beforehand that before they could actually testify to a match or a consistency or however you want to describe it for item no. 78, that they didn't have a number that they could put forward with that other expert opinion. And that raises some very, very serious questions. That's all I'm saying at this point.
THE COURT: All right.
MR. NEUFELD: So we'll have to address it Monday morning, but there may be a need to strike that portion of the testimony or give other curative instructions.
THE COURT: Well, let's wait till you see the numbers, see what you think. And if we can go forward, we will, and if we need to have a hearing out of the presence of the jury, we will.
MR. NEUFELD: One other matter, your Honor.
THE COURT: But don't forget, we don't get to that point until Mr. Clarke has the opportunity to reopen to represent. All right?
MR. NEUFELD: Oh, sure.
THE COURT: Okay.
MR. NEUFELD: I agree. One other matter, your Honor.
THE COURT: So it looks to me 4:30 Monday we may get to this.
MR. NEUFELD: Hopefully earlier. I may surprise you. One other item. Carl Douglas brought to the Court's attention earlier today a matter involving a representation that had been made on the record yesterday suggesting that Mr. Simpson, when he was arrested, had thousands of dollars either on his person or his bag. And Mr. Douglas brought that to the attention of the Court because we had never received any discovery and we had no information to support that wild accusation. I think we have now learned or we will hear from the District Attorney hopefully that in fact that accusation that was made yesterday had--it was not--had no basis in fact to support it, was not correct. And what concerns the Defense, your Honor, is again --and it has happened before--of an instance where certain statements are made on the record, not in front of the jury obviously because they're not hearing this, but to another juror. And we just would like the Court to be very careful that if this kind of thing happens in the future, that some type of corrective measure should be taken by the Court. That's all.
THE COURT: Miss Lewis, you want to address this for the People?
MS. LEWIS: Yes, your Honor. During the course of the argument in favor of our calling Mr. Kardashian to the stand, I said that I believed that within the black bag was several thousand dollars along with a gun and the disguise. Apparently--and I was in error in believing that the money was inside the black bag. It was on Mr. Cowling's person, some 8- to $10,000, and I'm informed it was returned to Mr. Cowlings. So it was within the black Bronco--within the Bronco rather, but not within the black bag. And I don't mean to have mislead the Court in any manner. That was an off-hand remark that wasn't germaine to the motion we were discussing.
THE COURT: All right. Mr. Clarke, when do you anticipate that Dr. Cotton will have this calculation available? You said Monday, but is there a possibility that could be faxed to counsel earlier so they can have some opportunity to evaluate it so maybe we can cut to the chase on Monday?
MR. CLARKE: Yes. I'll obtain Mr. Neufeld's fax number, and we'll fax it as soon as we can.
THE COURT: Terrific. Okay. Appreciate that. And let's see. Then the only thing remains is for the Court to evaluate Mr. Sims' declaration and see if there's any problem there. But I see this as a premature objection at this point. All right.
MR. HARMON: Mr. Sims pointed out one thing with respect to that. I'm pretty sure it's in the declaration and Mr. Scheck I'm sure will clarify how he misspoke on the point. All of those samples were not consumed at that time.
MR. SCHECK: I don't think--how could he have consumed them? He hasn't done the tests.
MR. HARMON: Well, you'll see--he said they were all consumed. That's my recollection and--
MR. SCHECK: Whatever. I'm only going on what they tell me, and I brought it to the Court's attention because I was concerned that the testing hadn't begun.
THE COURT: All right. I'll note the objection. I'll evaluate the declaration. At this point though, I think the objection is premature.
MR. HARMON: Well, I'll probably get it this afternoon and I'll get it to the Court this afternoon. They're trying to get it now.
THE COURT: Fine. Okay. Then I can spend the rest of the afternoon working on the other rulings I need to make.
MS. LEWIS: Thank you, your Honor.
THE COURT: All right.
MR. HARMON: We can't wait, Judge.
THE COURT: It's not like I haven't been busy. We'll stand in recess, 9:00 o'clock. Thank you, counsel.
(At 2:35 P.M., an adjournment was taken until, Monday, May 15, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
vs.) no. Ba097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Friday, May 12, 1995
Volume 145 pages 27214 through 27356, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
For volume 145 pages 27214 - 27356 day date session page vol.
Friday May 12, 1995 A.M. 27214 145 P.M. 27329 145
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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Chronological index of witnesses People's witnesses direct cross redirect recross vol.
Cotton, Robin 145 (Resumed) 27221n
Alphabetical index of witnesses witnesses direct cross redirect recross vol.
Cotton, Robin 145 (Resumed) 27221n
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. Page vol.
1146 - Photograph of 27263 145 item 47 with 5 swatches
1147 - Photograph of 27263 145 item 12 with 6 swatches
1148 - Photograph of 27269 145 side-by-side views 11 swatches
1149 - 10 printouts 27276 145 from slide presentation entitled "Degrading"
1150 - Drawing by 27327 145 Mr. Neufeld