Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Good morning, counsel. Back on the record in the Simpson matter. Mr. Simpson is again present with counsel, Mr. Cochran, Mr. Scheck, Mr. Neufeld. The People are represented by Mr. Clarke and Mr. Darden. The jury is not present. Counsel, is there anything we need to take up before we invite the jurors to rejoin us and the conclusion of Dr. Cotton's testimony?

MR. NEUFELD: Two matters, your Honor. One is--one has to do with the cross-examination of Dr. Cotton. In particular, with regard to the National Academy of Sciences book "Reporting DNA Technology in Forensic Science." What happened on Thursday and Friday, your Honor, is that the witness, who obviously is extremely familiar with this book, has read it very carefully, in fact, carries her own copy with her in her briefcase, was allowed to avoid being impeached by that book by simply saying as to those portions of the text which she disagrees with, she doesn't rely upon. I think if we allow that type of approach to continue--

THE COURT: Do you have any case authority indicating that the Court's rulings on this were inappropriate?

MR. NEUFELD: Your Honor, I haven't seen any case that stands for the proposition that a witness can selectively pick and choose which sections of a learned treatise she relies upon solely to avoid saying that--I'm sorry--solely to enable her to say that for every section that I disagree with I don't rely on it so you can't bring it to my attention. It would stand the entire rule of impeaching a witness by learned treatise on its head. That is what is so remarkable with this and that is what is going on here, and I don't think that should be allowed to continue. And I have never seen any case anywhere that allows a witness to draw those kind of distinctions between, well, page 365 I agree with, but page 366 I don't and so forth and so on. Obviously she is only going to then rely on those sections she agrees with so one could never under that approach ever use a learned treatise to impeach a witness.

THE COURT: Mr. Clarke.

MR. CLARKE: Your Honor, I think Mr. Neufeld mischaracterizes what the witness has done when he states that she has done this intentionally to avoid impeachment. The truth is she has relied on only portions of that material because those portions are scientifically appropriate and other portions are scientifically inappropriate, so I think to characterize it as selective reliance to make testimony sound better is absolutely absurd in the context of this witness' testimony. The Court asked Mr. Neufeld do you have any authority to demonstrate why the Court's previous rulings are incorrect and Mr. Neufeld simply asked the Court I don't know of any authority that says to the contrary. That is what demonstrates that it can be done the way the Court has said. This Court has previously ruled on this matter now a number of times and I think the Court's rulings are absolutely appropriate under the law, because otherwise the Court would be allowing inadmissible hearsay to come into court.

THE COURT: All right.

MR. NEUFELD: Your Honor, the only point on that, very briefly, is that it is her opinion that certain portions are scientifically inappropriate, but clearly those portions of the report that she regards as scientifically inappropriate were written by the same people who she felt wrote other portions of the report that were scientifically appropriate. The only point I'm trying to make, your Honor, is I can't believe that it is an appropriate attitude within the scientific community to simply reject out of hand, which is what the rule requires so far, reject out of hand those statements, those recommendations written by people in a book in a learned treatise in the same book in which you agree with other portions of it and so those statements can come in. It is setting up some kind of artificial construct which I think, you know, completely dilutes the entire purpose of impeachment with a learned treatise.

THE COURT: All right. Mr. Neufeld, you said you had a second matter you wanted to bring up?

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Yes, your Honor. The second point has to do with the Court's ruling that the People are required to produce the aggregated frequency for mixtures, and that issue will be addressed by Dr. William Thompson.

THE COURT: Mr. Thompson, good morning.

MR. THOMPSON: Good morning, your Honor. Yes, we do have a problem regarding the statistics to be presented in connection with mixtures, such as the mixed stains in the Bronco and stain 78. Last week the Court ruled that statistics must be presented in connection with those mixtures so that the jury would know what to make of them, what to make of the fact, for example, that Nicole Brown Simpson is included in the Bronco mixture.

THE COURT: I understand why I did it.

MR. THOMPSON: Over the weekend we received reports from the Prosecution regarding the statistics that they intend to present and we have serious problems with them. We think that the reports that they have shown us of what they have learned to do failed to comply with the Court's ruling on this matter and we have a series of objections to them that we want to state now.

THE COURT: All right.

MR. THOMPSON: I think at the time of the Court's ruling last week I think we all contemplated that the statistics in question would be frequency statistics to be computed in accordance with the national research council's guidelines. So, for example, to allow the jury to evaluate what it means that Nicole Brown Simpson has genotypes consistent with certain stains in the Bronco, the jury needs to know what percentage of people in the population at large have genotypes consistent with those stains and what percentage would be excluded. And the national research council provides a very simple straightforward way of doing those calculations by summing the matching and non-matching genotypes. What we got from the Prosecution and what they intend to present apparently is not frequencies, but something called likelihood ratios. Likelihood ratios are a ratio of two conditional probabilities, where a conditional probability, as you probably know, is a probability of one event calculated on the assumption that certain other events occurred. These likelihood ratios--we know of no precedent for the admission of likelihood ratios in a criminal matter. In the notice of objections we filed with the Court in March we stated a series of objections to likelihood ratios. All of the objections we stated in our previous memo apply to the likelihood ratios they are offering here, and more. We think the particular likelihood ratios that they are offering that are found in a report prepared by Professor Weir of North Carolina University are lacking in foundation because the assumptions that are predicate to the conditional probabilities don't necessarily jive with the facts of this case and in some ways are completely inconsistent with the Prosecution's theory of the case. So what they have come up with is not something that complies with the Court's order; it is a convoluted attempt to do an end run around the Court's order and present a complex form of statistical analysis that is unprecedented and that we think is quite misleading. Should they--should they be allowed to present this or attempt to present it, we think a 402 hearing may be necessary to evaluate whether these likelihood ratio statistics are in fact admissible. We think this is a failure to comply with the Court's order. We ask that they be ordered to present the appropriate statistics computed in accordance with the national research council's method, or that the DNA picture evidence be struck from the record.

THE COURT: Mr. Clarke.

MR. CLARKE: Yes, your Honor. Again this raises the question that I broached with the Court Friday. What numbers does the Defendant want? I mean, perhaps we can agree on that. But more importantly, what the Defense received was materials from Dr. Bruce weir that this witness, I believe the testimony will show, understands the calculation process, can perform it herself and will do so. Contrary to the Defense's assertion, there is no intent on our part to introduce likelihood ratios. There is a good deal of data in this report that we are referring to, it is approximately twelve pages in length, and it includes frequency information as well that we plan or I plan to elicit from Dr. Cotton during testimony.

THE COURT: Do you plan to elicit an aggregation?

MR. CLARKE: Could I have just a moment?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Your Honor, would it be possible for Dr. Cotton to answer the Court's question instead of it being through myself as a conduit?

THE COURT: Certainly. It would save some time, I suspect.

THE CLERK: Would you like her on the witness stand?

THE COURT: No. Dr. Cotton, good morning. What is it that we are going to be hearing and how will it be presented?

DR. COTTON: Let's take the RFLP separately from the PCR for a moment. Although the calculations are done the same, for the RFLP we intended to just discuss the two genetic locations where on the individual film you have evidence of a mixture that will be MS1 and G3. And to simply give the figures for what is the probability, you would pick a pair of people from the population that would have this combination of genotypes that would give you this result. The same--so for the RFLP it is simply giving that figure for the MS1 location and giving that figure for the G3 locus. For the PCR the figures are done likewise. That is, what is the probability you would pick a pair of individuals from the population, so it takes into account all possible pairs that could have given this distribution--this set of alleles, and sums those, and then says what is the probability it would pick two pairs of people that could give this? In his report Dr. Weir does provide information about likelihood ratios, but it was not our intention to discuss that.

THE COURT: All right. What are the numbers that we are going to get on the RFLP and the PCR aggregation?

DR. COTTON: I will have to get those out of my briefcase.

THE COURT: How about a ballpark figure?

DR. COTTON: The ballpark figures for the RFLP range sort of like 1 in 80 to one in either--it is either in the hundreds or thousands. It is not in tens of thousands. The PCR numbers are similar. The reason that they are similar is that for the RFLP you are just looking at a single locus and giving information about that locus. The PCR you are giving the composite information across all of the loci that we have done for PCR.

THE COURT: All right.

MR. CLARKE: To give the Court an example of sometimes the complexity of this, if one were to take the boot drop, item no. 78, and determine what is the probability of finding the 14 bands that were located, it is, for instance, approximately two with about twelve zeros behind it. I mean, they are astronomical, so it all depends on how the question is framed. It is not our intent to present that type, at least during the direct examination, but I think the Court is getting--I'm sure the Court is getting a feel for characterizing this question can be difficult, but I think we are--at least it is our intent to approach it in a very conservative fashion.

THE COURT: All right. Mr. Neufeld, any comment? Excuse me. Mr. Thompson.

MR. THOMPSON: Your Honor, I think it is clear from what has been said that what they are offering is not what the national research council called for.

THE COURT: Counsel, you have the same information before you. What numbers do you come up with?

MR. THOMPSON: Let me show you. You know, I prepared a chart, your Honor, showing what we think is the correct computation with regard to stain no. 29, the Bronco steering wheel, and with your permission could I show you and counsel a copy?

THE COURT: Please.

MR. THOMPSON: Okay.

(Brief pause.)

MR. THOMPSON: Now, your Honor, the frequencies in this chart are taken directly from Cellmark's own frequency data that was disclosed to us in discovery from DNA page 1520. And in order to compute the probability or the percentage of the population that would be consistent with this mixed stain in the Bronco, all that is done is that one lists all of the possible genotypes that one could have that could be consistent with that stain, computes the frequency--adds up the frequency of each of those genotypes in each of the relevant populations and sum them. So we find that among Caucasians 45.4 percent of Caucasians would match stain 29. 59.2 percent of African Americans, 48.8 percent of Hispanics would--would be included--included in the stain. And the percentage excluded would be the complement, simply taking these numbers and subtracting them from one. This is what the jury needs to know in order to evaluate, for example, the fact that Nicole Brown Simpson's genotypes match the stain. These statistics are not what the Prosecution is offering. They are offering conditional probabilities. Even if they don't frame them as a ratio of conditional probability, they are still conditional probabilities. That is the probability of one event conditioned on a set of assumptions. What Dr. Cotton discussed was the probability of a pair of people giving certain results under certain assumptions. Now, the problem is the assumptions. The conditional numbers that Dr. Weir computed, for example, were all conditioned on the assumption that the number of contributors to the mixed stains was two individuals and only two and that somehow we knew that. Now, that might be an appropriate statistic in a case where we know the number of potential contributors to the stain, for example, a rape case where a woman says that she was raped by two men, but in a case like this where we don't know the number of contributors, it is without foundation and irrelevant, prejudicial and completely inappropriate to allow them to present statistics premised on certain assumptions when they cannot demonstrate those assumptions are true. The arguments become circular. In order to--in order to prove the Prosecution's theory of the case is correct, they offer statistics that are premised on the assumption that the Prosecution's theory of the case is correct and we go around and around in a logical merry-go-round and that is why they are able to come up with numbers like 1 in 100 or 1 in 50 when the NRC numbers are 45 percent, 59 percent, 48 percent. So, you know, this is--this is not appropriate, it doesn't comply with the Court's order, and it is not even consistent with their own chart. Their own chart, when they list numbers is headed "frequency." They are not offering frequencies; they are offering these complex conditional probabilities premised on sets of assumptions which are going to be controversial and which I think may not match the facts of this case. For example, if the Prosecution's theory of the case is correct, the number of contributors to the steering wheel stain has to be at least three, and yet the statistics they are offering on that are probabilities based on the notion that there are only two contributors and the statistics ask what is the probability that by randomly choosing two and only two people you would produce the exact results that we see here? That simply is not relevant to the facts of this case.

THE COURT: All right. Mr. Clarke.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Yes. With regard to--first of all, Mr. Thompson's characterization is wrong as to the Prosecution's theory that there is three donors on the steering wheel. All that has been reported by Dr. Cotton thus far is that there are types from which two individuals cannot be excluded and there is another allele and that is not inconsistent with two contributors. We know there is at least two because there is a picture. It may very well be only two.

THE COURT: I'm more interested not so much in the theory of the Prosecution's case, but in the method in reaching this calculation in the first place. Have you had the opportunity to review the proposal by Professor Thompson with Dr. Cotton? Because this appears to be the aggregation that is recommended at page 59 of the NRC report.

MR. CLARKE: Just very briefly. If I could, I would like to speak with her a little bit more.

THE COURT: All right. When do you anticipate hitting this point in your--

MR. CLARKE: That is flexible with the Court's direct direction. If cross-examination is finished and then I can conduct my redirect, which at this point is not substantial, then perhaps--I see a smile on the Court's face--then perhaps we could address this issue once Dr. Cotton and I have had a chance to discuss it.

THE COURT: All right. Let's do that. All right. We have framed the issues. I think counsel should have the opportunity to go over with Dr. Cotton what these numbers are. Professor Thompson, do you have a similar calculation for the other stain?

MR. THOMPSON: I don't have it right now, your Honor. I would be happy to discuss with Dr. Cotton how we think that should be approached.

THE COURT: All right.

MR. THOMPSON: For that one we need some additional data which we have access to and we do not.

THE COURT: Okay. All right. Then I propose that we proceed with the jury, that probably what will occur is Dr. Cotton and Mr. Clarke will have the opportunity to confer over the lunch hour, and let's start with the jury now.

MR. CLARKE: Your Honor, if I may, could I ask that Dr. Weir's report be marked as an exhibit for the Court's purposes only?

THE COURT: Yes. I would like to read it over the lunch hour as well.

MR. CLARKE: Fine.

(Court's 11 for id = Dr. Weir's report)

THE COURT: All right. Deputy Magnera, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: I understand we enjoyed our weekend activities?

THE JURY: Oh, yes.

THE COURT: I understand one of us was unusually lucky. All right. Dr. Cotton, 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: All right. Good morning again, Dr. Cotton.

DR. COTTON: Good morning.

THE COURT: You are reminded, ma'am, you are still under oath. And Mr. Neufeld.

MR. NEUFELD: Good morning, ladies and gentlemen.

THE JURY: Good morning.

MR. NEUFELD: Congratulations, sir.

JUROR NO. 1290: Thanks.

CROSS-EXAMINATION (RESUMED) BY MR. NEUFELD

MR. NEUFELD: Good morning, Dr. Cotton.

DR. COTTON: Good morning, Mr. Neufeld.

MR. NEUFELD: What I would like to do, Dr. Cotton, is return to item 29 very briefly, which is where we left off Friday. On direct examination you had testified that the Prosecutor's board was not correct because it failed to include Nicole Brown Simpson as a potential contributor to the mixed bloodstain on the steering wheel; is that correct?

DR. COTTON: That's correct.

MR. NEUFELD: And that is why you wrote in the name "Brown"?

DR. COTTON: Yes.

THE COURT: All right. We need to prop that up so the jury can see what we are talking about here.

MR. NEUFELD: Yes.

(Brief pause.)

MR. NEUFELD: Thank you.

MR. NEUFELD: And Dr. Cotton, on Friday during cross-examination you admitted that the no. 4 allele reflects the presence of a potential third person into that mixture; is that correct?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. COTTON: The 4 allele, if you assume that there are three people, the 4 allele is a third person. Alternatively, the 4 allele could just be a second person.

MR. NEUFELD: Well, isn't that true in fact with--

DR. COTTON: You do--

MR. NEUFELD: I'm sorry.

DR. COTTON: You can't tell from this data whether there is two or three people there.

MR. NEUFELD: In fact, in any instance where you have more than two alleles, let's say you have three or four alleles present, you can't tell whether it is a mixture of two people or more than two people, correct?

DR. COTTON: That's right.

MR. NEUFELD: It could be three people, right?

DR. COTTON: Could be.

MR. NEUFELD: It could be four people?

DR. COTTON: It could be.

MR. NEUFELD: Right. But if we are now simply referring to the column on that board, the second to the last column that says "not excluded," you would agree, I think you have already said, that Mr. Simpson cannot be excluded, correct?

DR. COTTON: That's right.

MR. NEUFELD: And I think you also said that you would agree that Nicole Brown Simpson cannot be excluded as well, correct?

DR. COTTON: That's right.

MR. NEUFELD: But you are also saying that you can't exclude some other person whose identity is unknown; isn't that correct, who possesses that 4 allele?

DR. COTTON: That's right.

MR. NEUFELD: So what I would like you to do, Dr. Cotton, is to add, if you would, under the category that says "not excluded," this additional card that says "third person"--

THE COURT: Let me see counsel over at the side bar, please.

MR. NEUFELD: Sure.

THE COURT: With the reporter.

(The following proceedings were held at the bench:)

THE COURT: Why don't you show Mr. Clarke what it is you were posting on there.

MR. NEUFELD: Sure. Similar to what they did on the blood vial that we put up. I can't put up something permanent, so I have a metallic piece that simply adds another category of people who cannot be excluded by this result, which is simply a third person.

THE COURT: Keep your voice down. One other thing. Do not directly address the jurors other than to say good morning. All right. On about four or five occasions you have directly addressed jurors. That is not appropriate in California.

MR. NEUFELD: You mean the jurors at all?

THE COURT: You can say good morning to them. You can't speak directly to them.

MR. NEUFELD: Okay. I'm sorry about that. I really was unaware.

THE COURT: What you--

MR. NEUFELD: So I did something neutral. I didn't try and put who the person was. I just said "third person identity unknown," as another class of people who cannot be excluded by this typing and obviously the person has the 4 allele.

THE COURT: Mr. Clarke.

MR. CLARKE: The first item is Mr. Neufeld was just asked, immediately prior to court, did he have any new exhibits that he was going to seek to use and he said no. That is the first objection. The second relates to, first of all, I don't want and I think the Court should not allow any alteration of our charts whatsoever. This represents an alteration of that chart. It cannot be preserved, shouldn't be preserved and it shouldn't be used on our chart. It is one point to point to items on the chart, have testimony and so forth, but I think any alteration is improper. And third of all, this is clearly misleading because there is no evidence that there is a third person. All we know is two people cannot be excluded, as are ten people couldn't be excluded, but to reach the conclusion as this does, a third person identity unknown, is contrary to the facts of this case.

THE COURT: All right. I find this to be argumentative, counsel.

MR. NEUFELD: Your Honor, the objection about altering the board, I'm not altering the board.

THE COURT: I'm not worried about that. I find that to be argumentative.

MR. NEUFELD: I deliberately picked "third person identity unknown" because it is not argumentative, your Honor.

THE COURT: It is. It is. Sustained. Sustained.

MR. CLARKE: Your Honor--

(The following proceedings were held in open court:)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: One moment, your Honor.

(Brief pause.)

MR. CLARKE: Could we see you briefly, your Honor? We would like to make a request of you.

THE COURT: No. Let's proceed.

(Brief pause.)

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you.

MR. NEUFELD: Dr. Cotton, given the observed alleles on item 29, the mixed bloodstain on the steering wheel, there is a category here called "not excluded." Do you see that?

DR. COTTON: Yes.

MR. CLARKE: I'm sorry, your Honor. May I walk through so that I can see this chart?

THE COURT: Certainly.

(Brief pause.)

MR. NEUFELD: Sure.

MR. NEUFELD: And the alleles observed again on sample 29 are 1.1, correct?

DR. COTTON: Yes.

MR. NEUFELD: 1.2, correct?

DR. COTTON: Yes.

MR. NEUFELD: And finally the 4?

DR. COTTON: Yes.

MR. NEUFELD: And if we were able to make a separate column called "not excluded," you would agree--you would agree, Dr. Cotton, that Mr. Simpson could not be excluded as a contributor to this mixture; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: So I'm going to add his name into the column of people who cannot be excluded. And would you agree that given the alleles in this mixture that Nicole Brown Simpson cannot be excluded?

DR. COTTON: That's right, I agree.

MR. NEUFELD: So I'm going to add her name to the column of people who cannot be excluded. Is that consistent with your testimony?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that also given the presence of the 4 allele, that anyone else who has a genotype for DQ-Alpha of either 4 comma 4, 4 comma 1.1 and 4 comma 1.2 cannot be excluded?

DR. COTTON: Yes, I do.

MR. NEUFELD: So may I add that collective person, if you will, as a third category under not excluded?

DR. COTTON: Yes. That would be another group of people that wouldn't be excluded.

MR. NEUFELD: Thank you.

MR. NEUFELD: And is it consistent with your testimony if I simply describe this person as someone of either type 4 comma 4 or 4 comma 1.1 or 4 comma 1.2; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: So but your testimony and your observations of this DQ-Alpha type then, it would be these three different listings under the "not excluded" column; is that correct?

DR. COTTON: That's the three different listings you get if you are assuming three contributors. You can break it down in that manner--

MR. NEUFELD: I'm not assuming anything.

MR. CLARKE: I'm sorry, could the witness finish her answer, please?

THE COURT: Yes.

MR. NEUFELD: Please do.

DR. COTTON: You could--you could simply also make a list of all the possible genotypes that could be in there and it would include the ones you have listed there, including the one for Mr. Simpson and the one for Nicole Brown.

MR. NEUFELD: In your column where you have "not excluded," you didn't make an assumption that there was simply two donors, did you?

DR. COTTON: No. We didn't make any assumption at all about how many donors there were.

MR. NEUFELD: Right. So likewise, if we don't make any assumption as to how many donors there are in the categories of people not excluded, then would you agree then with the three different groupings that I have placed on Defendant's next in order--which would be what, your Honor?

THE COURT: I believe it would be 1151.

MR. NEUFELD: 1151.

THE COURT: 1151.

(Deft's 1151 for id = chart)

MR. NEUFELD: Is that correct, sir? Ma'am? Doctor? Excuse me. Long weekend. I apologize.

DR. COTTON: Yeah. What I'm--you are correct, but what I'm trying to get--the point I'm trying to get to is that if you don't make any assumptions at all about how many donors there are in there, there are genotypes that aren't on your list.

MR. NEUFELD: You wouldn't exclude a 1.1, 1.1? You wouldn't exclude a 1.2, 1.2? I'm sorry. 1.1 is on the list, isn't it?

DR. COTTON: That's right. Okay.

MR. NEUFELD: Isn't that Nicole Brown Simpson?

DR. COTTON: You are right, I guess we have--

THE COURT: Wait, wait, wait, wait, wait. First of all, you can't talk at the same time. Secondly, when I say "Wait," everybody stops, including you, Dr. Cotton, including you, Mr. Neufeld.

MR. NEUFELD: I'm sorry.

THE COURT: You can't argue with the witness and with the answer that she is giving. You get to ask questions and you get to give answers, doctor. Proceed.

MR. NEUFELD: Thank you.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: With the Court's permission, your Honor, I would just like to be able to move the pad so the rest of the jurors can see it as well.

(Brief pause.)

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you.

MR. NEUFELD: Now, in terms of eliminating other possible contributors to this mixed stain, Dr. Cotton, are you aware that neither Dennis Fung or Andrea Mazzola could have contributed the no. 4 allele to this mixture?

MR. CLARKE: Objection, assumes facts not in evidence.

THE COURT: Sustained.

MR. NEUFELD: All right. Let me ask you a hypothetical based on a good faith basis. May I just show something to the Court?

MR. CLARKE: I'm sorry. Your Honor, may we approach the bench, please?

THE COURT: Yes, with the court reporter.

(The following proceedings were held at the bench:)

MS. CLARK: Your Honor, may I be heard on this? This has gotten out of hand and ridiculous.

THE COURT: No, you may not.

MR. CLARKE: Your Honor, this is outrageous in my view. Counsel is producing pieces of paper, attempting to show them in front of the jury as a basis for asking questions and is being demonstrative in front of the jury--let me finish, please--to be able to establish certain points to the jury. Now, I think that is absolutely outrageous conduct. It is done with a particular point to make in front of the jury. It is done--and I don't know about in New York it being proper, but it is clearly improper in a California courtroom, and I venture to say certainly in any courtroom, for counsel to be attempting to prove facts in front of the jury through an improper means, knowing that objections will be made to those acts and seeking to get across those points by the very acts themselves.

MS. CLARK: Second time in twenty minutes.

THE COURT: All right.

MR. CLARKE: When the Court takes that into consideration, along with what happened this morning, which was blatantly showing an item that had never been shown to us, had never been brought up with the Court and was knowingly objectionable, this is twice within the first short period of time and I think counsel needs to be told by the Court this cannot happen again.

MR. NEUFELD: May I be heard, your Honor?

MR. CLARKE: And--

THE COURT: Wait. What is your hypothetical question?

MR. NEUFELD: The hypothetical question--well, I can read it to you. I have it right there.

(Brief pause.)

MR. NEUFELD: My understanding under California law is for a hypothetical I don't have to--I'm not limited to the facts that are actually in evidence if I have a good faith basis for asking the question. The hypothetical will be as follows, your Honor--

MR. CLARKE: I'm sorry. Could counsel keep his voice down.

MR. NEUFELD: A tow truck driver testified that the Bronco was locked when he towed it from Mr. Simpson's home to the LAPD print shed for safekeeping. Dennis Fung testified the Bronco was locked when he and Andrea Mazzola arrive at the print shed to collect the bloodstains the next morning. Assume that the LAPD ran DNA tests on some of the employees in the SID lab. And assume further that criminalist Dennis Fung and Mazzola were among the group tested. Would you agree as an expert that if their DQ-Alpha types did not include the no. 4 allele then they could not have contributed--

MR. CLARKE: Adjust the volume.

MR. NEUFELD: They could not have contributed the no. 4 allele to the mixture? That is it and this is the good faith basis for asking that question.

THE COURT: Mr. Clarke.

MR. CLARKE: I think it is just outrageous to take that report and parade it in front of the jury. I can't urge that to the Court enough, particularly since it has happened twice today. I think it is absolutely wrong. And I'm going to ask that the jury be admonished about this waving, showing exhibits that are absolutely improper in court.

THE COURT: Do you object to the hypothetical question?

MR. CLARKE: Yes.

THE COURT: Why?

MR. CLARKE: Because it assumes facts not in evidence at this point.

MS. CLARK: Also improper foundation.

MR. CLARKE: And it is also misleading because there is a second report that demonstrates, for instance, genotypes that are going to play a role of these particular individuals. Counsel is selectively picking various pieces of evidence to use with these witnesses, and the answer to the question isn't helpful; it is argumentative. This witness has already said the person has a 4 allele, whoever that it is. What good does it do to this jury to establish that this person doesn't have a 4 allele? We could take any of the detectives. I mean, we could go on forever and ever. Andrea Mazzola, for instance, to my knowledge, was never in the Bronco.

MR. NEUFELD: I'm not--I'm not going on forever. I'm simply asking about the two other people who said they were at the Bronco collecting this stain. And frankly, the D1S80 result is completely irrelevant because as their witness has already testified once, you have an exclude--the person is excluded. All I want to show is that neither of these people could have contributed the no. 4 allele. Good faith basis.

MR. CLARKE: I'm sorry; volume.

THE COURT: All right. The objection is sustained.

(The following proceedings were held in open court:)

THE COURT: Thank you, counsel. Proceed.

MR. NEUFELD: One moment, your Honor.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, the first samples that were sent to you by the Los Angeles Police Department were sent on or about June 22nd, 1994; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: At least initially the person that you were expected to contact with the results of your testing was Michele Kestler with the LAPD; is that correct?

DR. COTTON: She was one of the contacts, yes. There were--there was another person who could also be a contact, if I remember correctly.

MR. NEUFELD: Let me just show you a document to see if it refreshes your recollection on this point. Let me ask you this question: Were you, at least initially, instructed by the Los Angeles Police Department that the results should be communicated to Michele Kestler?

DR. COTTON: Yes.

MR. NEUFELD: And I believe on September 8, 1994, your laboratory prepared a report on DNA results, did it not?

DR. COTTON: We have a lot of reports. Which one--

MR. NEUFELD: The one dated September 8th?

DR. COTTON: Yes, I found it.

MR. NEUFELD: You found it?

DR. COTTON: Yes.

MR. NEUFELD: Okay. And that is a report written to Michele Kestler?

DR. COTTON: That's right.

MR. NEUFELD: And isn't it a fact that on September 12th of 1994 Cellmark actually faxed a copy of this report to Michele Kestler at the Los Angeles Police Department?

DR. COTTON: We may have. I don't have all those records down here with me.

MR. NEUFELD: Perhaps I can help you.

(Brief pause.)

MR. CLARKE: I'm sorry, may I see what counsel is referring to, your Honor?

MR. NEUFELD: Sure.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: What is next in order, your Honor?

THE COURT: 152. Excuse me, 1152.

(Deft's 1152 for id = document)

MR. NEUFELD: I will show you a document which has been marked as 1152 which is a five-page letter--five-page report, excuse me, and ask you if you can identify that document?

DR. COTTON: Yes. This is a copy of the September 8th report, and although the fax cover is not here and I can't exactly read all the figures at the top, it seems to say "From Cellmark Diagnostics." I don't--I can't read any fax date on the top, however.

MR. NEUFELD: If you look at the next page, or the page after where it seems to be a little bit clearer, can you see a date?

DR. COTTON: There we go. Right, right, and the date is September 12th, 1994, at 1:45.

MR. NEUFELD: Okay. So that would indicate, Dr. Cotton, thank you, that this September 8th report was faxed to Michele Kestler at the Los Angeles Police Department on September 12th, 1994?

DR. COTTON: Yes.

MR. NEUFELD: Now, did Cellmark disclose the results in that report to anyone, other than Michele Kestler, during the month of September?

DR. COTTON: No.

MR. CLARKE: Objection, relevance.

THE COURT: Overruled.

MR. NEUFELD: Did Cellmark disclose any of the results contained in that report of September 8th to anyone in the media?

MR. CLARKE: Same objection.

DR. COTTON: Absolutely not.

THE COURT: Overruled.

MR. NEUFELD: Are you aware, Dr. Cotton, that there were certain media reports on September 12th concerning the results?

MR. CLARKE: Objection, assumes facts not in evidence.

THE COURT: It is irrelevant.

MR. NEUFELD: I want to ask you some questions, Dr. Cotton, about the substrate controls in this case. All right?

DR. COTTON: Sure.

MR. NEUFELD: Now, in this case Andrea Mazzola testified that she created substrate control swatches for every stain that she collected at Bundy and Rockingham. Are you aware of that, by the way?

MR. CLARKE: Objection, relevance.

THE COURT: Overruled.

DR. COTTON: Umm, no. I've watched little bits and pieces of testimony here and there, but I have not listened to the entirety. I didn't have time to do that, so I'm not--

MR. NEUFELD: Now, you stated--okay, thank you. You stated on direct examination, Dr. Cotton, that testing the substrate control swatch can be informative if the testing of that swatch reveals the presence of DNA; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree that if DNA is found, one explanation could be that there were certain biological materials in the area immediately adjacent to the bloodstain?

DR. COTTON: Yes, that would be the interpretation.

MR. NEUFELD: And would you agree that another explanation, Dr. Cotton, could be that both the blood stained swatch and the substrate control swatch were cross-contaminated at some point after the collection of the evidence? Is that another possible interpretation?

DR. COTTON: If you are testing the substrate control and you found DNA on it, then that would say that your first explanation would be correct and the other explanation which you just said is that it could have been contaminated later, but it doesn't say anything about whether the actual piece of evidence was contaminated later. It only says something about that substrate control.

MR. NEUFELD: I know, but as an expert in the field, Dr. Cotton, if you saw that--if you thought that there may have been a cross-contamination of that substrate control and the substrate control was also handled all the way along the process of the evidentiary stains, would that cause you to consider the possibility in your mind that the evidentiary stains may also have been cross-contaminated?

MR. CLARKE: Objection, irrelevant. Also assumes facts not in evidence.

THE COURT: Overruled.

DR. COTTON: It certainly would say--it would raise that possibility in your mind, but it wouldn't tell you definitely one way or the other.

MR. NEUFELD: Okay.

DR. COTTON: It wouldn't tell you anything.

MR. NEUFELD: Well, it would tell you that you should be concerned about that possibility; is that correct?

DR. COTTON: Yes, but being concerned about it and knowing something aren't the same thing.

MR. NEUFELD: Well, I think you also said that you can't know for sure whether there was cross-contamination with a sample before you ever received it anyway; isn't that right?

DR. COTTON: Of course.

MR. NEUFELD: Well, would you agree with the following proposition, Dr. Cotton: When a stain of blood is analyzed with PCR it is important to analyze the unstained materials next to the stain with PCR as a control for contamination?

DR. COTTON: I think it is--I think you can--I know you can do that. Sometimes, depending on the nature of the evidence, it may be more important to do that than other times. We do not in our laboratory routinely request a substrate control. If we are requested to do one, of course we do it, but we do not routinely request one, or if we are given a big stain, we don't routinely take one, because it is--it is not always going to be informative, depending on the nature of the evidence.

MR. NEUFELD: So what you are saying is that it is your policy to defer to the submitting agency as to whether or not the control swatches get analyzed?

DR. COTTON: That is what we would generally do.

MR. NEUFELD: Now, just getting back to the proposition that I asked you about, Dr. Cotton, would you agree that it is important to analyze the control swatch at the same time for PCR testing as you analyze the evidentiary stain?

DR. COTTON: I don't think it makes any difference if you do it one way or the other.

MR. NEUFELD: But do you believe it is important to do it?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. COTTON: I'm not sure what you are asking me. Are you asking me is it important to at the same time that you do the DNA extraction from the evidence swatch that you do the DNA extraction from the control swatch at the same time?

MR. NEUFELD: Did you say on direct examination, Dr. Cotton, that it is important, when you have a certain kind of control, be it a negative control or a positive control, that the control should be run in parallel to the actual evidentiary items?

DR. COTTON: Well, I said you should run a reagent blank control in parallel to the actual items.

MR. NEUFELD: And did you also say that you should run the amplification control in parallel to the items?

DR. COTTON: Yes, the negative reagent--the negative control that you set up at the time of amplification is always run in parallel.

MR. NEUFELD: Did you also say that you should run the positive control in parallel--

DR. COTTON: Yes.

MR. NEUFELD: --to the other items of evidence?

DR. COTTON: Yes.

MR. NEUFELD: And you said on direct examination that another type of control that exists is this substrate control; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: So my question, Dr. Cotton, is would you agree with the following proposition: That when the bloodstain is analyzed for PCR it is important to analyze at the same time the unstained material which makes up the substrate control?

DR. COTTON: No, I don't think that--I don't think it is important. I think you can do it later and it will still give you the same information as if you do it at the same time.

MR. NEUFELD: So what you are saying, and correct me if I am misstating it, Dr. Cotton, that as long as you do it later, when you do it is not critical?

DR. COTTON: That's what I'm saying.

MR. NEUFELD: Now, in this case, Dr. Cotton, you received blood-stained items, swatches from items 47, 49, 50 and 52 last summer; isn't that right?

DR. COTTON: Yes.

MR. NEUFELD: And is it also true that when the LAPD sent you those items representing stains from the Bundy walkway, they failed to send you substrate control swatches for the same items?

MR. CLARKE: Objection, argumentative.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: When the Los Angeles Police Department sent you last summer the blood-stained swatches for items 47, 49, 50 and 52, did they send you the substrate control swatches for the same items?

DR. COTTON: No, they didn't.

MR. NEUFELD: And in October of 1994 you received the blood-stained swatches for item no. 48, did you not?

DR. COTTON: You will have to let me check my sheets first.

(Brief pause.)

DR. COTTON: Can you give me some kind of number that I'm looking for here?

MR. NEUFELD: Umm--

DR. COTTON: Or specifically a date?

MR. NEUFELD: October 12. On or about October 12.

(Brief pause.)

MR. NEUFELD: If you take a look in your report dated November 11, 1994, you may see a reference.

DR. COTTON: Okay. Great. Thank you.

(Brief pause.)

DR. COTTON: Okay.

MR. NEUFELD: Is that correct, that on or about October 12th you received blood-stained--two blood-stained swatches representing what was purported to represent item 48?

DR. COTTON: Yes, but I think that was the actual item 48. I got a lot of stuff here, so let me go back, okay?

MR. NEUFELD: Sure.

DR. COTTON: All right.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, I may have created a misunderstanding and not as been as clear as I should have been there in my question, and perhaps I could save you some time. Isn't it true that on or about October 12th, 1994, that you received two blood-stained swatches which were labeled item 48 from the Los Angeles Police Department?

DR. COTTON: Yes.

MR. NEUFELD: Okay. And in that same shipment did they send you the control swatch, substrate control swatch for item 48?

DR. COTTON: Yes.

MR. NEUFELD: And what record do you have of that--of receiving that control swatch on that date?

DR. COTTON: We have a log-in for item no. 48 with a "C" after it.

MR. NEUFELD: Well, let me ask you this question: In the report that I just referred you to--

DR. COTTON: The--

MR. NEUFELD: --which you referred you to which referred to the October 12th date, didn't that say that you only received two swatches, both of which were stained?

DR. COTTON: Yes.

MR. NEUFELD: It doesn't refer to an unstained swatch being received in that shipment, does it?

DR. COTTON: It doesn't, but we have a statement in our--I'm sorry, I misspoke. I'm only finding the information about item 48 itself in this report with the types from item 48.

MR. NEUFELD: Which would be the stained, the blood-stained portions, correct?

DR. COTTON: That's right. That is why I'm getting confused. I'm not finding what you are referring to and I don't know if it is simply not here or I'm not finding it.

MR. NEUFELD: Well, there is no indication anywhere in your report that you received the substrate control swatch for item 48 in that shipment on October 12th; isn't that right?

DR. COTTON: That's right.

MR. NEUFELD: And since you did not receive from the Los Angeles Police Department the substrate control swatches for those five--for the stains from the purported Bundy drops, would it be fair to say that you also did not run control swatches when you actually did the DNA testing on the evidence itself?

DR. COTTON: We didn't run any control swatches on that early set of evidence at the time that we analyzed that group of samples.

MR. NEUFELD: And would it be fair to say, Dr. Cotton, as an expert, that since the Los Angeles Police Department did not ship to you the substrate control swatches for the Bundy walkway stains at the same time as the evidentiary stains, that you have no knowledge regarding how these control swatches were handled since their purported collection to the present?

DR. COTTON: That would--that would be true, however, we did receive some control swatches later and I would have to look at which samples those were control swatches for. To say I had no knowledge--

MR. NEUFELD: All right. Well, let's start out with the first step.

DR. COTTON: Okay.

MR. NEUFELD: Assuming for a moment that you did receive some control swatches much more recently--is that what you are saying?

DR. COTTON: Yes, that is what I'm saying.

MR. NEUFELD: Okay. Certainly based on the fact that you didn't receive the control swatches along with the evidentiary stains, last summer and in October, would you agree that you have no knowledge regarding how those control swatches were handled since their purported collection up until the time much more recently that you received any of those control swatches?

DR. COTTON: Yes, that--of course that would be the case.

MR. NEUFELD: And Dr. Cotton, in this case there was also testimony that--by Andrea Mazzola that when she testified or August 23rd, 1994, that she had testified that she put her initials on bindles that she processed on the morning of June 14th. My question to you, Dr. Cotton, is do your records reflect that any of the bindles that you received from the Los Angeles Police Department bore Mazzola's initials?

MR. CLARKE: Objection, argumentative, the first portion.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Do your records have Andrea Mazzola's initials on any of them--I'm sorry. Do your records reflect that on the bindles that you received, whether Andrea Mazzola's initials appeared on any of those bindles?

DR. COTTON: They don't reflect whether they do or don't. That is, we wouldn't be writing that down. We would be writing down what was inside the bindle.

MR. NEUFELD: Did you look at bindles yourself when they came in?

DR. COTTON: On the original pieces of evidence or the control swatches later on?

MR. NEUFELD: The original pieces of evidence?

DR. COTTON: We did look at them and we--this is on the first group of stuff that we received, yes, we did look at them.

MR. NEUFELD: And to the best of your recollection isn't it a fact that Miss Mazzola's initials were not on any of those bindles?

DR. COTTON: I don't have any specific recollection. It is not a piece of information that I would have been likely to remember.

MR. NEUFELD: Now, Dr. Cotton, you said that you did receive some control swatches more recently; is that right?

DR. COTTON: Yes, we did.

MR. NEUFELD: Would that be in April, this past April of 1995?

DR. COTTON: Yes, it would.

MR. NEUFELD: And isn't it a fact, Dr. Cotton--I'm sorry. Would that be the only time you received any control swatches in this case?

DR. COTTON: I believe those are the only swatches that we received.

MR. NEUFELD: Okay. Would it be fair to say, Dr. Cotton, that from the very first time you received item 47 in this case until today as you sit on this witness stand, that the Los Angeles Police Department never sent to you the substrate control swatch for item 47?

DR. COTTON: Yes, that would be correct.

MR. NEUFELD: And so item 47's control swatch has never been examined or tested by your laboratory?

DR. COTTON: That's right.

MR. NEUFELD: Would it be fair to say, Dr. Cotton, that from the time they first sent up item 48 in this case until today as you sit on this witness stand, the Los Angeles Police Department never sent you the substrate control for item 48?

DR. COTTON: That's correct.

MR. NEUFELD: Dr. Cotton, apparently they did send you, on April 4th, material labeled item 49, but it doesn't say it was the item 49 control; isn't that correct?

DR. COTTON: It didn't state on the label the word "control."

MR. NEUFELD: It just said "item 49," correct?

DR. COTTON: That's right.

MR. NEUFELD: All right. So do you have independent knowledge as to whether you received on April 4th the control for item 49 or did you just receive a portion of item 49?

DR. COTTON: I have photographs in the case folder of what that item looked like, but I don't have any on-paper writing that says anything other than item 49.

MR. NEUFELD: Okay. So you have no document or record which reflects that you received the control for item 49 either in that batch; is that correct?

DR. COTTON: That's what I just said.

MR. NEUFELD: Now, I call your attention to item 50, the fourth of those stains at the Bundy location. From the date that you first received item no. 50, the evidentiary stains, until today, as you sit here on this witness stand, have you ever received the substrate control swatch for item no. 50?

DR. COTTON: No, we haven't.

MR. NEUFELD: Finally, for item no. 52, Dr. Cotton, on the day you received the evidentiary portion of item 52 until today as you sit here on this witness stand, has the Los Angeles Police Department ever sent to you the substrate control swatch for item 52 for DNA analysis?

DR. COTTON: No, they haven't sent it to us.

MR. NEUFELD: In your laboratory, Dr. Cotton, is there a standard procedure that every employee who removes or puts something into a bindle puts his or her initials on the bindle?

DR. COTTON: Yes.

MR. NEUFELD: And are you familiar with the practices in other laboratories, Dr. Cotton?

DR. COTTON: Not particularly.

MR. NEUFELD: Well, Dr. Cotton, to the extent that you have expertise in this area, would you agree that it is a standard procedure at every forensic science laboratory to have an individual who either removes or puts something into a bindle to initial that bindle?

DR. COTTON: I can really only speak for what we do in our laboratory, and when we take something in and out the bindle is taped and initials are put across the tape and the adjacent paper.

MR. NEUFELD: Now, referring to another type of control, Dr. Cotton, you mentioned something called a reagent blank; is that right?

DR. COTTON: Yes, I did.

MR. NEUFELD: And is the reagent blank sometimes referred to as an extraction blank also?

DR. COTTON: Yes.

MR. NEUFELD: And is that because this control starts at the beginning of the processing of the sample at the laboratory when you first extract the DNA from the sample?

DR. COTTON: That's exactly right.

MR. NEUFELD: And am I correct in saying, Dr. Cotton, that a reagent blank is simply a tube without any DNA in it that gets processed along with all the other evidentiary samples?

DR. COTTON: Yes. Generally that is what it is, or it could, on rare occasions, contain--if you had to swab a stain off of something, if we had to do that in the lab and that hadn't previously been done for us, we might include a piece of the swab before it was used, so it is not always absolutely empty, but most of the time it is.

MR. NEUFELD: And generally, at least in this case, that is what you meant by a reagent blank, one that was empty?

DR. COTTON: That's right.

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Now, if at the end of all those steps that comprise the DNA typing procedure, Dr. Cotton, the reagent blank tests positive for the presence of DNA, it means the control failed; is that correct?

DR. COTTON: You are putting a very black and white interpretation on there. It means that you have some DNA that was in there at some point, and that is not a term to say a control failed. That almost means to me that the control didn't provide you with the information that you need, instead of did, so--

MR. NEUFELD: Well--

DR. COTTON: --I--I wouldn't choose that term myself.

MR. NEUFELD: All right.

DR. COTTON: But it does mean that you have some DNA in there that you normally would not expect to have in there.

MR. NEUFELD: Well, it is not just normally, Dr. Cotton. The way you run your experiment and the reason you have this reagent blank is--and the way it is run in this case, for instance, is because if the test is run correctly, there shouldn't be any DNA in the reagent blank at the end of all those steps when you analyze it; isn't that correct?

DR. COTTON: That is exactly right, yes.

MR. NEUFELD: And in fact, if you do see the presence of DNA, it means that the experiment was not a success? Would you agree with that?

DR. COTTON: Well, again, it is the same thing. It is--it is informative. It doesn't necessarily mean your results are wrong if you equate wrong with success or correctness with success. That doesn't mean your results are wrong. It does mean that you want to go back and possibly redo it, possibly, you know, relook at what you did. You might only go back--if you thought something had happened just at the very last part, you might want to just go back and do the very last part. That means you want to go back and look at what you've done carefully.

MR. NEUFELD: Well, Dr. Cotton, if in fact you see DNA profile in the reagent planning, which is supposed to have no DNA in it, could that also mean that evidentiary specimens that were processed at the same time as the reagent blanks were contaminated by some form of DNA?

DR. COTTON: It could mean that.

MR. NEUFELD: In fact, isn't that one of the dangers? When you see a DNA profile in what should be a negative control, isn't that an indication of the possibility that contamination or cross-contamination occur early on in the process?

DR. COTTON: It indicates that that could have happened, yes.

MR. NEUFELD: In fact--now, the first two items of evidence that you received in this case were items 49 and 50; is that right?

DR. COTTON: That's right.

MR. NEUFELD: And when you received each of those two items, Dr. Cotton, I believe you said you cut off ten percent for future testing and you began your testing on the remaining ninety percent; is that right?

DR. COTTON: That's right.

MR. NEUFELD: And so the first step that you undertook when you received those two samples in June of 1994, was to extract the DNA from the ninety percent portion of those two samples; is that correct?

DR. COTTON: Yes, that's correct.

MR. NEUFELD: And this extraction of items--of DNA from items 49 and 50, this was done before Dr. Blake and Dr. Lee even visited your laboratory; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: After the extraction process, Dr. Cotton, you took a small portion of the extracted DNA and you ran I think what you described as either a test gel or a yield gel to determine approximately how much DNA is present?

DR. COTTON: That's right.

MR. NEUFELD: And is that what you actually did with items 49 and 50?

DR. COTTON: Well, I didn't actually do it myself, but that is what was done with 49 and 50.

MR. NEUFELD: And as to both items 49 and 50, when that little mini gel test was run, you concluded that there was too little DNA present for RFLP testing; is that correct?

DR. COTTON: We concluded it was too degraded for RFLP testing.

MR. NEUFELD: Okay. Now, in some situations, Dr. Cotton, after you take that small portion of the ninety percent and do that test, would you be able to recycle the balance of the ninety percent to use for other forms of testing, such as PCR testing?

DR. COTTON: Only--we would only do that if we had run a reagent blank control during that DNA extraction.

MR. NEUFELD: If you had run a reagent blank control that we just described during that port--excuse me--during that part of the process of items 49 and 50, then you would be able to recycle the balance of that ninety percent of the unused DNA; is that right?

DR. COTTON: That's correct.

MR. NEUFELD: But in this case, Dr. Cotton, your laboratory simply didn't run a reagent blank negative control for items 49 and 50; is that correct?

DR. COTTON: Not at the time that we did that first extraction.

MR. NEUFELD: And so for use 49 and 50, at least to the bulk of the ninety percent that you received, it could not be recycled for PCR testing, could it?

DR. COTTON: Well, you could do it. You simply wouldn't have a reagent blank control to run along with it, so we did not use that initial extracted DNA when we did our PCR test on that sample.

MR. NEUFELD: Well, the reason you didn't use the balance of that ninety percent portion is because you could not know for sure whether or not there was some contamination that occurred with respect to items 49 and 50 without having a reagent blank; isn't that right?

DR. COTTON: Yes, we couldn't know what had happened during that DNA extraction.

MR. NEUFELD: And so to be scientifically cautious, you didn't use that portion of 49 and 50 which you failed to use a reagent blank on for follow-up PCR testing; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: Does your laboratory keep a centralized log indicating the number of times that you failed to run a particular control?

DR. COTTON: No, we don't have any kind of log like that. There are--there--never mind. We don't have a log like that.

MR. NEUFELD: All right. Dr. Cotton, do you agree with the following proposition: If a negative control is positive in one experiment, it indicates a potential problem, not just for that experiment but for any experiment performed by the laboratory at about the same time?

DR. COTTON: I agree that that might be the case, but in other words, it might--it might indicate that there were problems with other experiments or it might indicate there was a problem just with the one thing that you did, and you would have to go back and look at other things to make that determination.

MR. NEUFELD: Well, that is all--

DR. COTTON: So I guess I don't agree with that statement.

MR. NEUFELD: You don't agree with it?

DR. COTTON: Not completely, no.

MR. NEUFELD: Well the statement simply indicates a potential problem, not a definitive problem?

DR. COTTON: Okay. I will go for potential problem.

MR. NEUFELD: Would you agree with that?

THE COURT: Wait, wait, wait.

MR. NEUFELD: Sorry.

MR. NEUFELD: Let me repeat the proposition one more time, Dr. Cotton.

MR. NEUFELD: If a blank control is positive in one experiment, it indicates a potential problem, not just for that experiment, but for any experiment performed at about the same time? Would you agree with that proposition.

MR. CLARKE: Objection, asked and answered.

THE COURT: Overruled.

DR. COTTON: I would agree with that statement as you read it, yes.

MR. NEUFELD: Okay. And Dr. Cotton, are you familiar with that portion of the National Academy of Science report, "DNA Technology in Forensic Science," which addresses the issue regarding the consequences of a control failure in PCR testing?

MR. CLARKE: Objection, assumes facts not in evidence.

THE COURT: Sustained.

MR. NEUFELD: Well--

MR. CLARKE: Also move to strike counsel's comments.

THE COURT: Overruled. Ask Dr. Cotton if she is familiar with that part of the report.

MR. NEUFELD: Are you familiar with the portion of the NRC report entitled "DNA Technology in Forensic Science" which addresses that same issue, the consequences of a control failure?

DR. COTTON: Can you just tell me what the title of that section is?

MR. NEUFELD: Page 67 of the NRC report, if you would like to take a look at it. It begins on 65 and runs through 67.

(Witness complies.)

MR. NEUFELD: In particular, Dr. Cotton, could you take a look at one portion of that, just to save time.

DR. COTTON: (Witness complies.) The statement that you just pointed out to me is the one that you just read to me.

MR. NEUFELD: Okay. And in fact in your own copy of that book do you have that same statement underlined?

DR. COTTON: Yes. I have many things highlighted in this book.

MR. NEUFELD: And is that statement that I just read to you in fact one of the those statements?

DR. COTTON: Yes.

MR. NEUFELD: And is that a portion of the NRC report that you in fact relied upon in coming to an expert opinion as to the consequences of the control failure in PCR testing?

DR. COTTON: I have read this portion of the book. I'm having a little trouble with this concept of "relied upon." I have read this portion of the book. I agree with some of it and I don't agree with other parts. I happen to agree with that statement, but if you ask me did I agree with and rely upon that whole section, I would have to say no.

MR. NEUFELD: But--

THE COURT: All right. She has indicated she agreed with the portion that you read.

MR. NEUFELD: All right.

THE COURT: All right. Next question.

MR. NEUFELD: And when you read that paragraph, did you also read the very next sentence?

DR. COTTON: Umm, not just this--not when I was looking at it just now.

MR. NEUFELD: Okay. Please do.

MR. CLARKE: I'm sorry, objection. Relevance.

THE COURT: Overruled.

DR. COTTON: Back on 67, right?

MR. NEUFELD: Yes.

DR. COTTON: (Witness complies.) I don't really agree with this next statement, but our laboratory hasn't been in that position, so I don't know--I don't really have a strong opinion one way or the other.

MR. NEUFELD: Well, Dr. Cotton, would this be--portion of the NRC report, namely this next sentence, that you relied upon in reaching your own opinions as to what actions to take when there was a failure of a control in PCR testing?

DR. COTTON: No.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: One moment.

(Brief pause.)

MR. NEUFELD: With the Court's permission may I read the entire sentence that she said she agreed with?

THE COURT: We have been through this already.

MR. NEUFELD: As I stated as a proposition, a portion of the sentence. She has now read the entire sentence and said that she agrees with it.

THE COURT: Ask her the question.

MR. NEUFELD: Thank you.

MR. NEUFELD: Dr. Cotton, do you agree with the opinion of the scientist who authored the DNA technology and forensic science book or the National Academy of Science in which they say, quote--

MR. CLARKE: Excuse me, objection, hearsay as framed.

THE COURT: Sustained, as framed.

MR. NEUFELD: Well--may we have a side bar, your Honor?

THE COURT: No. Very simple hearsay issue, counsel. Proceed.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, a moment ago when you said you agreed with and relied on that sentence, were you referring to this sentence, and I quote--

MR. CLARKE: Excuse me. Objection, misstates the evidence.

THE COURT: Sustained.

MR. NEUFELD: May I be heard on this issue, your Honor?

THE COURT: Very simple hearsay issue, counsel. Move on.

MR. NEUFELD: I would simply ask to make a record on the--on that issue, your Honor.

THE COURT: No. Move on. The objection is sustained. You can make any argument at the break. We will break at 10:30.

MR. NEUFELD: In your laboratory, Dr. Cotton, whenever there has been an instant--I'm sorry. One moment.

(Brief pause.)

MR. NEUFELD: In your laboratory, Dr. Cotton, has there ever been an instance when in a similar period of time several different technicians saw DNA results on the negative controls where nothing should be visualized?

DR. COTTON: Yes, we had that occur one time.

MR. NEUFELD: And whenever there has been an instance when more than one technician or scientist observes a failure in the negative controls, do you document that phenomena in any laboratory-wide log?

DR. COTTON: The instance is documented in terms of a report that goes to the quality control assurance manager and what was done to correct it also goes to her.

MR. NEUFELD: So that there will be--

DR. COTTON: In terms of a brief statement of this is what happened, this is what we did.

MR. NEUFELD: So even at Cellmark there have been occasions where the negative controls failed?

DR. COTTON: Yes, and I want to--

MR. CLARKE: Excuse me--

DR. COTTON: I want to be very clear about what I'm saying. We had one instance in which the negative control that is set up at the time of amplification was giving us a signal and we had to go back and figure out that that negative control just--turned out that it by itself was contaminated, but it could have been some other result. And anyway, we had to stop doing what we were doing, go back and figure that out and then restart testing.

MR. NEUFELD: And would it be fair to say, Dr. Cotton, that for each and every time where you've had the negative control failure, you haven't been able to determine, by your investigation, exactly how the contamination occurred in every instance when it did occur?

MR. CLARKE: Objection, misstates the evidence.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Well, there have been more than one occasion where a negative control has failed; is that correct?

DR. COTTON: No. What I--what I'm trying to tell you is there was one instance where we saw that, and I'm calling it one instance because it was confined to a period of one or two days. And so--so it wasn't just one test. Let me be clear. It wasn't just one test. There were several tests done over that period of two days, but it was this period of a couple of days that we had this problem, and that is the only period of time that we have had that particular problem.

MR. NEUFELD: So with respect to having that particular problem where the negative control failed over a period of one or two days in multiple tests, were you able to determine the precise cause for that failure?

DR. COTTON: We were able to--the--the answer is really no, we didn't know the precise cause.

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: And Dr. Cotton, in your laboratory when that phenomena occurred over a period of one or to days in multiple tests seeing DNA in the negative controls where it shouldn't be, would you refer to that phenomena as an outbreak of contamination?

DR. COTTON: I didn't refer to it like that, no.

MR. NEUFELD: Would you say that that is a fair characterization of it?

DR. COTTON: No.

MR. NEUFELD: Have you ever heard that term before?

DR. COTTON: I've heard it in court before. I have not heard it in scientific discussions.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: You just said a moment ago that you only heard it in court proceedings and not in scientific papers; is that correct?

DR. COTTON: I said discussions. That is discussions I've had or--I can only talk about what--discussions I've had, discussions I've had with people in other laboratories or in my own laboratory. If we have one instance of contamination, we don't generally refer to it as an outbreak. It sounds like we are getting the measles or something and it is just not a term that I have heard used in discussing this potential problem with other scientists.

MR. NEUFELD: Dr. Cotton, you said that you read the NRC report many times; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And when you read the NRC report did you see them describe it as an outbreak of contamination?

MR. CLARKE: Objection, irrelevant, calls for hearsay.

THE COURT: Overruled.

DR. COTTON: Well, they may well have. I don't know--I mean, if you look at all the stuff that I have to read, I cannot remember word for word what is in the NRC report, what is in our standard operating procedure and so forth, so if it is in there, fine, but--

MR. NEUFELD: Dr. Cotton--

MR. CLARKE: I'm sorry, could the witness finish her answer?

MR. NEUFELD: Sorry.

DR. COTTON: But it doesn't change the fact that when we discuss it in our lab and when I discuss it with other people that is not the terminology they used or I have heard anyone else use in the setting as I characterized it.

MR. NEUFELD: Dr. Cotton, please go back and look at the very same page we just looked at a moment ago, page 67, and the very next paragraph.

MR. CLARKE: Sorry, objection, hearsay.

THE COURT: Overruled.

DR. COTTON: (Witness complies.) Yes.

MR. NEUFELD: Isn't it a fact that the NRC report states--

MR. CLARKE: Objection, hearsay.

THE COURT: Sustained.

MR. NEUFELD: It is for a different purpose, your Honor.

THE COURT: Sustained. Ask the question appropriately.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Isn't it a fact, Dr. Cotton, that the NRC report describes this phenomena?

MR. CLARKE: Same objection, your Honor.

THE COURT: Sustained. Dr. Cotton, you have reviewed that paragraph?

DR. COTTON: Yes, sir. Yes, I have.

THE COURT: All right. Does that refresh your recollection as to that terminology?

DR. COTTON: They use the term "outbreaks of contamination" in this paragraph.

THE COURT: Fine. Thank you.

MR. NEUFELD: Thank you, your Honor.

MR. NEUFELD: Do you agree, Dr. Cotton, that it is important to discover the source of an outbreak of contamination so that the laboratory can be cleansed of it?

DR. COTTON: No, I don't agree that you must determine the source. Sometimes that is simply not possible.

THE COURT: All right. Mr. Neufeld, the court reporter tells me she is about to run out of paper, so we will take our break at this point. Do you have one or two more wind-up--

MR. NEUFELD: No, I don't. We can take our break right now.

THE COURT: All right. Ladies and gentlemen, we are going to take a recess for the morning session. Please remember all of my admonitions to you. Do not discuss the case among yourselves, form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anyone to communicate with you with regard to the case. And we will take a 15-minute recess.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record. All parties are again present. Let's have the jurors, please, Deputy Magnera.

DEPUTY MAGNERA: Yes, your Honor.

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: Thank you, ladies and gentlemen. Please be seated. Dr. Cotton, would you resume the witness stand, please. Good morning again, Dr. Cotton.

DR. COTTON: Good morning.

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you. Good morning.

MR. NEUFELD: Dr. Cotton, when you referred to the phenomenon in your laboratory where there was multiple instances of negative control failure occurring, when did that happen? Do you know the date?

DR. COTTON: No, I don't know the date without--it was sometime in the last two years, but I don't know the exact date.

MR. NEUFELD: Can you be more specific even as to the month?

DR. COTTON: No.

MR. NEUFELD: Do you know how many cases were included in those control failures?

DR. COTTON: I think it was about somewhere like four or six, something like that.

MR. NEUFELD: And for each of those four or six cases, how many samples were there tested where the negative controls failed?

DR. COTTON: I have--I have absolutely no idea. It wouldn't been--wouldn't have been necessarily all the samples in that case. It could have been like one sample that was done at that time. But how many, I don't have any idea.

MR. NEUFELD: Is there a centralized log which one could access to see how many samples had the negative controls fail in that period?

DR. COTTON: No.

MR. NEUFELD: Would you agree, Dr. Cotton, that it is important to find out the source of the contamination causing the negative controls to fail so that you can correct the cause and thus reduce the likelihood of reoccurrence?

DR. COTTON: It's nice if you can find out the source, but many times, that's not possible. So I would not agree that it was essential or necessary.

MR. NEUFELD: Well, in this case, Dr. Cotton, isn't it true that a reagent blank that was supposed to be blank displayed DNA dots?

THE COURT: Do you want to rephrase that, "this case"? When you say "this case," are we talking about the--

MR. NEUFELD: Oh, I'm sorry.

MR. NEUFELD: In this case, right here in this courtroom involving Mr. Simpson, isn't it true that a reagent blank that was supposed to be blank displayed DNA dots?

DR. COTTON: Yes, there was one.

MR. NEUFELD: And I believe you said on direct examination that there can be two possible explanations for that occurrence. Do you recall that?

DR. COTTON: I do.

MR. NEUFELD: And I believe you said that one possible explanation is that there was a minute contamination during the original extraction which was magnified when it was concentrated along with item 7. do you recall saying something like that?

DR. COTTON: Yes, I do. That's--that's a good restatement of what I said or what I meant anyway.

MR. NEUFELD: Now, is it also possible that a second explanation would be that during the concentration procedure itself, the contamination occurred?

DR. COTTON: Yes.

MR. NEUFELD: So those would be the two possible explanations that you came up with?

DR. COTTON: That's right.

MR. NEUFELD: Now, would you agree, Dr. Cotton, that if one doesn't know which explanation is correct, that to be cautious, it is incumbent on the laboratory to assume that the contamination occurred during the initial extraction?

DR. COTTON: No. I mean--there's two possibilities. There's no way to distinguish between them. So I think it would be inappropriate to assume one or the other.

MR. NEUFELD: Okay. Well, if there's no way that you can prove which one it is, then certainly the explanation that the contamination that led to the reagent blank failure occurred furthest back in time as a possible theory; isn't that correct?

DR. COTTON: Well, certainly that's possible, yes.

MR. NEUFELD: All right. Now, the other--there were other samples that were extracted during that extraction when you set up the reagent blank; isn't that right?

DR. COTTON: Yes. That's right.

MR. NEUFELD: And would you agree that the other items in this case that were extracted at the same time as the commencement of the reagent blank were items 78, 56, 52, 47 and 12?

DR. COTTON: Uh, I'd rather go into my notebooks.

MR. NEUFELD: Please do.

DR. COTTON: Okay.

(The witness complies.)

DR. COTTON: Okay. I have the beginning of the notes on that set of samples.

MR. NEUFELD: Okay. And is item 78 included in that list?

DR. COTTON: The reason I'm having trouble is that our numbers are different than the item 78 number. So what's in the information that I'm looking at are just our own numbers and it doesn't say item 78. So we have to--let me just find the piece of paper and take it out that allows me to easily go back and forth between the two sets.

MR. NEUFELD: Please do.

(Brief pause.)

DR. COTTON: Okay. Yes. Item 78 was in that group.

MR. NEUFELD: And is item 56 in that group?

DR. COTTON: Yes, it is.

MR. NEUFELD: Is item 52 in that group?

DR. COTTON: Yes, it is.

MR. NEUFELD: And item 52 is the one where you did RFLP analysis, correct?

DR. COTTON: That's right.

MR. NEUFELD: And is item 47 in that group?

DR. COTTON: Yes, it is.

MR. NEUFELD: And is item 12 in that group?

DR. COTTON: Yes. That's right.

MR. NEUFELD: And are there any other items in that group that I left out?

DR. COTTON: Uh, you'll have to give me a minute, and I'll let you know.

(Brief pause.)

DR. COTTON: No. That's it.

MR. NEUFELD: Okay. And, Dr. Cotton, given the presence of DNA on the reagent blank negative control happening when you ran that batch of items that you just enumerated, shouldn't you have gone back and repeated the extraction procedure for those five items in the case?

DR. COTTON: No.

MR. NEUFELD: Doesn't your protocol, Dr. Cotton, say that if the reagent blank fails, then all the samples must be reextracted?

DR. COTTON: The reagent blank for the other samples apart from our samples 06, which is item 7, when that reagent blank was originally typed, it typed with no DNA signal visible at all. Therefore, the sets of--the samples apart from sample 7 that did not get put through the microcon could not have been effec--even if we assume--if we just say for the sake of assumption that there was some minor level of contamination that got concentrated later by the microcon, it was not at a sufficiently high level to produce any product whatsoever, and, therefore, it couldn't have affected the types that we came up with on the set of samples apart from the one that went through the microcon.

MR. NEUFELD: Well, Dr. Cotton, isn't it true that a contaminant does not necessarily have to contaminate all samples in the same quantity?

DR. COTTON: Given that all these things are in solution and based on the solutions are--would be normally considered to be even distributions of molecules, I don't really think that that's an important consideration.

MR. NEUFELD: But isn't that true, Dr. Cotton, only if you can assume what the cause of the contamination of the reagent blank is?

DR. COTTON: No. I just--I think that since the reagent blank contamination clearly didn't show up in that first set of samples, that it does not present any problem to that first set of samples.

MR. NEUFELD: But, Dr. Cotton, doesn't your protocol explicitly state that if the reagent blank fails, then the entire experiment for the samples that are run with it should be deemed inconclusive? Isn't that in your protocol?

DR. COTTON: I'd have to look at the protocol to see what it specifically states, but in the protocol, we don't usually use the word "experiment." So would be better to go back and look at what it specifically states. I believe that it states that if possible, the sample should be run again.

MR. NEUFELD: And does it also state to your recollection that the--that the data should be deemed inconclusive?

DR. COTTON: Yes, it states that, but I can't tell you right off the top of my head if it states that as an absolute or it should be--or that that's a possibility that should be considered.

(Brief pause.)

MR. NEUFELD: Let me just show you the following document, see if it refreshes your recollection on this particular point.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Thank you. Doesn't your protocol say that the--that when this happens, the test will be considered inconclusive? When I say "this," I mean when the reagent blank fails.

DR. COTTON: Yes.

MR. NEUFELD: It doesn't say it could possibly be considered inconclusive, does it? Doesn't qualify it that way?

DR. COTTON: Well, there is a sentence later on that refers to the Ph.D.s using their discretion when--and I can't restate the sentence exactly. Maybe you can find it there. But there is some discretion there on the part of the Ph.D. And this sample was--this sample before--it was amplified before it went through the microcon, and that amplification was also later on typed. So the sample wasn't exactly done in duplicate, but the results were obtained twice.

MR. NEUFELD: Dr. Cotton, in fact, two people reviewed this same reagent blank and both people concluded that there were DNA dots present, correct?

DR. COTTON: There are two.

MR. NEUFELD: There was no descending opinion on that, was there?

DR. COTTON: No.

MR. NEUFELD: All right. And in fact, I believe you said a moment ago that you should try to do reextractions of the samples, but I believe it's your position it's not essential; is that correct?

DR. COTTON: Well, in this case, I don't know that--again, I would have to go back into the notes. I can't tell you whether or not we had enough sample available to do a reextraction.

MR. NEUFELD: Well, to the best of your knowledge, did you make any effort at attempting to reextract those samples?

DR. COTTON: In order to answer your--well, I know that we didn't, but what I can't tell you without going back into the record is whether or not there was anything that was available to us to go back and reextract.

MR. NEUFELD: Would you please take a look at your notes to see whether or not any effort was made by Cellmark to do a reextraction on those samples that were typed at the same time that the reagent blank tested positive?

DR. COTTON: I'm sorry. I guess I didn't understand when you asked me the first time. I thought you were referring to just sample item no. 7.

MR. NEUFELD: No. I'm asking you whether or not efforts were made to do a new extraction from item 78, 52, 56, 47 and 12 after you got a negative control failure on the reagent blank.

DR. COTTON: We didn't get a reagent blank control failure for those items because the reagent blank typed with those items prior to putting it through a microcon was not positive and those items were not repeated.

MR. NEUFELD: Dr. Cotton, didn't you say a few minutes ago that one possible explanation for the DNA dots appearing on the reagent blank could be that when the initial extraction occurred before you even reprocessed it, that when the initial extraction occurred, that's when the contamination occurred? Didn't you say that, doctor?

DR. COTTON: Yes, I did. But the reagent blank dots don't show up. If they don't show up with a set of samples, they can't have influenced anything. If you can't see anything, it can't have affected the types.

MR. NEUFELD: Well, Dr. Cotton, you would agree that somehow, there was a contaminant that got into that reagent blank that created some DNA to be present; isn't that right?

MR. GOLDBERG: Objection. Asked and answered.

THE COURT: Overruled.

DR. COTTON: Somehow, a contaminant got in there to cause the reagent place to be positive at the point for item 7 after the microcon concentration had be--had happened.

MR. NEUFELD: And when you did the--when you created the reagent blank, you created it at the same time, that is, you extracted those other samples I just described; namely 78, 52, 56, 47 and 12; isn't that right?

DR. COTTON: It was started at the same time, yes. But the--the end result, the reagent blank that gave the end result with two faint dots on it was not--had gone through an additional procedure that item--the other items handled apart from item 7 did not go through.

MR. NEUFELD: But finally, Dr. Cotton, didn't you say that you can't rule out the possibility that the contamination of the reagent blank occurred prior to that additional step, that it occurred during the initial extraction?

DR. COTTON: That's right. But I can rule out the possibility that it affected the types.

MR. NEUFELD: Do you even know to this day what actually happened to precipitate that reagent blank from lighting up with DNA dots?

DR. COTTON: No. It would be impossible to determine that at the time you did the work or at this point.

MR. NEUFELD: Now, I ask you to turn your attention to item no. 78, the stain removed from the bottom of the boot on Mr. Goldman.

DR. COTTON: And do you want me to look at PCR information or RFLP?

MR. NEUFELD: I believe you have a report on December 5th that refers to both, but I may be mistaken. Let me ask you this. By December 5th, you had completed both the RFLP testing and the PCR testing; isn't that correct?

DR. COTTON: That's my recollection, yes.

MR. NEUFELD: And I believe it was your testimony on direct examination, Dr. Cotton, that the banding patterns that you observed in item 78 could be consistent with a banding pattern of Nicole Brown Simpson; is that right?

DR. COTTON: Yes.

MR. NEUFELD: But I believe you also said that with respect to the other band seen, it was simply inconclusive as to whether or not Mr. Goldman is included or excluded; is that correct?

DR. COTTON: That's exactly right.

MR. NEUFELD: Now, let's turn to the fingernail scrapings. You did not actually receive fingernail scrapings from the Los Angeles Police Department, did you?

DR. COTTON: No.

MR. NEUFELD: And you did not receive fingernail cuttings from the Los Angeles Police Department, did you?

DR. COTTON: That's correct.

MR. NEUFELD: What you received were solutions if you will from the Department of Justice DNA laboratory in Berkeley; is that correct?

DR. COTTON: That's correct.

MR. NEUFELD: And you do not know what portion of the scrapings were utilized to do the DNA typing, do you?

DR. COTTON: To do the DNA typing in our laboratory or--

MR. NEUFELD: Yes. You don't know from where in the fingernail scrapings the sample was taken for you to do DNA typing in your laboratory; isn't that correct?

DR. COTTON: Oh, yes. That's correct.

MR. NEUFELD: And you do not know from where on the fingernail cuttings the samples were removed for you to do DNA typing in your laboratory?

DR. COTTON: Yes. That's correct.

MR. NEUFELD: And would it be fair to say that you do not know whether the samples or the portions of the samples that Greg Matheson utilized for EAP typing at the LAPD laboratory could have been different portions of those samples?

DR. COTTON: That's right. I don't know that.

MR. NEUFELD: And would you also agree that--

(Brief pause.)

MR. NEUFELD: One second. Your Honor, with the Court's permission, I would like to show the witness this slide which is already in evidence, 1143-E--d.

THE COURT: Proceed.

MR. NEUFELD: Can you see that slide, Dr. Cotton?

DR. COTTON: May I step down and view it from down there?

MR. NEUFELD: Sure. Take your time.

DR. COTTON: Does it matter?

THE COURT: No. Whatever you feel most comfortable with, doctor. Mr. Neufeld.

MR. NEUFELD: Are you aware, Dr. Cotton, that in this particular case, an EAP test was done by Gregory Matheson which provided a result that was different than the EAP profile for Nicole Brown Simpson?

DR. COTTON: I'm aware that he did a test and I'm aware there was some difference.

MR. NEUFELD: Okay. And would you agree, Dr. Cotton, that when you are doing an EAP test, you are looking at what is known as a red blood cell protein?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that red blood cells do not have DNA in them?

DR. COTTON: Yes. That's correct.

MR. NEUFELD: And just to go back for a second, Dr. Cotton, to clarify it for me, in blood cells, there are two--I'm sorry. In blood, there are two types of cells, correct?

DR. COTTON: Well, there's really many kinds of cells--

MR. NEUFELD: All right.

DR. COTTON: --if you want to get real fine differentiations. But if you want to classify them as red cells and white cells for our purposes, that's going to work fine.

MR. NEUFELD: Okay. And, Dr. Cotton, it's only the white cells that have the DNA; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And the red cells for which you do EAP test on do not have DNA?

DR. COTTON: That's right.

MR. NEUFELD: Thank you. You can have your seat again, please.

(The witness complies.)

(Brief pause.)

MR. NEUFELD: I believe one of the statements you made on direct examination, Dr. Cotton, was, the more genetic markers you look at, the more information you have. Is that a fair statement?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that that would apply to conventional serological markers as well as to DNA genetic markers?

DR. COTTON: I would think so.

MR. NEUFELD: For instance, Dr. Cotton, would you agree that you could include somebody with a PCR DQ-Alpha type and then, for instance, do an ABO test which excludes a person?

DR. COTTON: Yes, you could do that. I don't know enough about ABO testing to know the intricacies of what exact kinds of results you get. But could you exclude--could that phenomenon happen? Certainly.

MR. NEUFELD: And--well, and when you're looking at an ABO test, you're not looking at that person's ABO typing on a DNA level; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And would you agree, Dr. Cotton, that likewise, the fingernail scrapings could appear to be consistent with Nicole Brown Simpson for certain DNA markers, but she could be excluded based on a red cell protein marker, that that's possible?

DR. COTTON: It's possible, yes.

MR. NEUFELD: Let me ask you one other question about these fingernail scrapings, Dr. Cotton. You had said on direct examination that sometimes the scientists in your laboratory are asked to examine a lane from the electrophoretic plate without being influenced by the bands they see on the lane to the left or the bands they see on the lane to the right. Do you recall saying that?

DR. COTTON: Yes, I did.

MR. NEUFELD: And you mentioned that--I believe you said well, one of the things you want to avoid sometimes is the term called "examiner bias"?

DR. COTTON: I didn't say that.

MR. NEUFELD: Have you ever heard the expression "examiner bias"?

DR. COTTON: Yes.

MR. NEUFELD: And not just in forensic context, but have you heard that term used in conjunction with people who are asked to score autorads?

DR. COTTON: Again, it's something that I've been asked about sometimes in court. It's not something we normally are discussing in the lab. But--I don't have anything more to say about it than that.

MR. NEUFELD: Okay. Well, would you agree, Dr. Cotton, that one way to avoid examiner bias on a particular lane that you're asked to score is to do what you said earlier on direct examination; namely, cover up the information on the adjacent lanes and just look at the lane under question?

DR. COTTON: From what we do in the lab with autoradiographs, we do that sometimes because sometimes it's helpful in determining whether a band is sufficiently dark to score it.

MR. NEUFELD: Okay. Now, I want to show you an item which is People's 224-B in evidence which Mr. Matheson was asked to score using that same method; namely, where you cover up the adjacent lanes and interpret it. And I'm going to ask you to take a look at that same lane, Dr. Cotton.

(Brief pause.)

MR. CLARKE: I'm sorry. At some point, could I see the exhibit?

THE COURT: Mr. Neufeld, can I offer you some post-it's?

MR. NEUFELD: Let me use post-it's.

(Brief pause.)

MR. NEUFELD: Now--

MR. CLARKE: Objection as to foundation, your Honor.

THE COURT: Why don't you ask a few foundational questions. Mr. Neufeld.

MR. NEUFELD: Dr. Cotton, have there been times when you have been asked to look at electrophoretic plates or photographs of electrophoretic plates to determine when a certain band may be controversial as to its existence or nonexistence, to make a call on that by covering up the adjacent lanes?

MR. CLARKE: Objection. Vague as to electrophoretic and also beyond the scope.

THE COURT: Which tests are we talking about here?

MR. NEUFELD: I'm going to show her--it's the EAP, your Honor.

THE COURT: Sustained on scope.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Separate and apart, Dr. Cotton, for a particular type of test, would you agree, however, that it is a recognized procedure when you have a difficult to interpret lane to cover up the adjacent lanes and score it blindly?

DR. COTTON: Well, again, I can only speak for what we do in our lab, and what we do in our lab only pertains to DNA testing. So in our lab, that's a procedure that we use. I don't--I can't really speak to anything else.

MR. NEUFELD: Well, but Dr. Cotton, even in the field of medical research on DNA testing, isn't that a procedure that is also sometime used in that application?

DR. COTTON: Well, again, I can only tell you what I've done. Umm, I didn't do that when I was running RFLP gels when I was doing research. I just didn't. We do it in our lab for the--the purpose that I described of trying to determine whether we can all see a particular band, and that's the extent of my use of that procedure.

MR. NEUFELD: And would it be fair to say that you at least would regard it as an appropriate procedure for the use in your laboratory?

DR. COTTON: Yes, I do.

MR. NEUFELD: Now, I would like to ask you some questions about proficiency testing, okay? You had referred on direct examination to the fact that Cellmark undergoes proficiency testing; is that right?

DR. COTTON: Yes. That's right.

MR. NEUFELD: And you referred to different types of proficiency testing that Cellmark has undergone; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: And isn't it true, Dr. Cotton, that the Cellmark laboratory makes available a summary of your laboratory's error rate as measured by proficiency testing?

MR. CLARKE: Well, objection. Vague.

THE COURT: Overruled.

DR. COTTON: We make available a summary of the lists of the number of tests, the number of samples that were involved. And if you were to calculate error rate using a specific formula, that all--that calculation is also on that summary sheet.

MR. NEUFELD: I'm not asking you about what the error rate is or--

DR. COTTON: No. I understand.

MR. NEUFELD: --specific numbers at this time, Dr. Cotton. All I'm saying is, don't you in fact on that summary that you send out actually refer to it as an error rate?

DR. COTTON: Yes, we do.

MR. NEUFELD: Okay. And would you agree, Dr. Cotton, that one of the purposes of proficiency testing is to provide a measure of error rate just as you did in the summary that you handed out?

DR. COTTON: You can do that with the results. In my mind, that's not the main purpose, but it's certainly a calculation that one can do.

MR. NEUFELD: I'm not asking you whether it's the main purpose, Dr. Cotton. I'm asking if that's one of the purposes.

DR. COTTON: Yes, it is.

MR. NEUFELD: And would you agree, Dr. Cotton, that there are different types of proficiency testing?

DR. COTTON: Oh, yes. I agree.

(Brief pause.)

MR. NEUFELD: I believe next in order is 1153, your Honor.

THE COURT: All right. Defense 1153.

(Deft's 1153 for id = drawing)

MR. NEUFELD: Now, Dr. Cotton, would you agree that one type of proficiency test is known as open proficiency test?

DR. COTTON: Yes.

MR. NEUFELD: I'm going to call this chart "Proficiency Test" if that's all right with you because we're going to be describing proficiency tests. Is that okay?

DR. COTTON: It's okay with me.

MR. NEUFELD: Okay. Now, one type you said is open proficiency test; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And another type of proficiency test is called a blind proficiency test; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And the difference between an open test and a blind test, Dr. Cotton, is that in a blind test, the laboratory is unaware that it's being tested; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And in an open test, you're aware that it's a test as opposed to actual casework?

DR. COTTON: That's right.

MR. NEUFELD: And furthermore, Dr. Cotton, there's another way to break down proficiency tests, isn't there? Well, let me ask you this way. Other than simply dividing those tests which are open from those tests which are blind, can you also separate those tests which are internal from those tests which are external?

DR. COTTON: Yes.

MR. NEUFELD: And in an internal proficiency test, the proficiency test is actually created by the laboratory itself that's going to be tested?

DR. COTTON: That's right.

MR. NEUFELD: And on an external proficiency test, some outside agency is going to create this proficiency test and give it to the laboratory such as Cellmark to be tested?

DR. COTTON: That's right.

MR. NEUFELD: And so you would agree that there are basically four types of proficiency tests based on what we've just discussed. Is that a fair statement?

DR. COTTON: Sure.

MR. NEUFELD: And one type then would be called an open external test; is that right?

DR. COTTON: Yes. Maybe I should come down and watch you draw.

MR. NEUFELD: Okay. All right. And a second type of proficiency test will be called an open internal test, namely, a test where the laboratory knows it's being tested and the test was made inside the laboratory; isn't that correct?

DR. COTTON: Yes.

MR. NEUFELD: And based on what you just testified to as to the four different categories of proficiency testing, a third category would be called a blind external test, correct?

DR. COTTON: Yes.

MR. NEUFELD: And a fourth category would be a blind internal test; is that correct?

DR. COTTON: Yes.

THE COURT: Check out proficiency.

MR. NEUFELD: It's been brought to my attention by my colleagues that this New York lawyer also has a spelling problem and there should be an "I" in here; is that correct, Dr. Cotton?

DR. COTTON: Yeah. I have a spelling problem too though.

MR. NEUFELD: It's an east coast phenomenon, your Honor.

MR. NEUFELD: Thank you, Dr. Cotton. So would you agree that these are the four categories of proficiency tests?

DR. COTTON: Yeah. You can break them down and that's a way to do that.

MR. NEUFELD: All right. Great?

MR. NEUFELD: Could you just help me--why don't you--so the other jurors can see it.

(The exhibit was displayed to the jury.)

THE COURT: All right. Mr. Neufeld. Proceed.

MR. NEUFELD: Yeah. I would like to put it over on the side if I may, your Honor, because I'm going to be referring to it during the next portion of the questioning.

THE COURT: Proceed.

MR. NEUFELD: All right. Now, Dr. Cotton, when you prepare tests yourself--when I say "you," I don't mean you personally, Dr. Cotton. I mean Cellmark, the Cellmark laboratory--you of course are familiar with the strengths and weaknesses of your own laboratory, aren't you?

DR. COTTON: I hope so.

MR. NEUFELD: Now, but when an external agency prepares a test, they're preparing a test that's going to go out to a number of different laboratories generally; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And the external agency is not simply thinking to itself, well, what are Cellmark's strengths and weaknesses. There's not how it works, is it?

DR. COTTON: I hope not.

MR. NEUFELD: Okay. And would you agree, Dr. Cotton, that a proficiency test that mirrors actual casework would be a good basis for measuring laboratory error rate as opposed to a proficiency test that doesn't replicate actual casework?

DR. COTTON: What do you mean by replicating actual casework?

MR. NEUFELD: Well, for instance, if you were interested in how well the laboratory analyzed forensic samples, you wouldn't rely on a proficiency test where you received simply, you know, a statement saying that, "We're giving you four pristine pieces of white cloth which we simply dabbed a single blood drop on and we want you to type that." Would you agree with that?

MR. CLARKE: Objection. Unintelligible.

THE COURT: Overruled.

DR. COTTON: Umm, well, that's pretty much like a forensic case sample. You have standards that are on a cloth that way. So--if you're talking about, are they about the same number of samples and the same types of samples, then the proficiency tests seem to be sort of the--about the same numbers you would see--receive in an average case and about the same types--I think they try to make the same types of samples that you would receive in a case. But clearly they're making the samples. They're not like picking them up from an actual crime scene.

MR. NEUFELD: Well, for instance, Dr. Cotton, in this case, there are several samples which are purported to be mixed stains or stains from more than one source; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And that's something that is not uncommon in casework, right?

DR. COTTON: That's correct.

MR. NEUFELD: And so if you wanted to have a proficiency test where you tried to replicate actual casework conditions, it would be a good thing to have some--some mixed stains thrown in, wouldn't it?

DR. COTTON: Sure.

MR. NEUFELD: And in this case, for instance, Dr. Cotton, there is samples which are purportedly scraped up off the sidewalk. Are you aware of that?

DR. COTTON: Scraped up off the sidewalk?

MR. NEUFELD: I'm sorry. Swatched up off the sidewalk.

DR. COTTON: Yes, I'm aware of that.

MR. NEUFELD: And then there are samples that are swatched up off of a driveway?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that samples that are collected from those types of locations are frequently affected by various environmental insults?

DR. COTTON: Of course.

MR. NEUFELD: So factors such as heat, sunlight, moisture or the substrate condition itself can affect the quality of the testing; isn't that right?

DR. COTTON: Sure.

MR. NEUFELD: And so if you wanted to have a proficiency test that replicated casework, you would like to supply the laboratory that's being tested with some samples that also have been subjected to various environmental insults, wouldn't you?

DR. COTTON: Well, you might like to, but I think for the numbers of samples that the proficiency test folks prepare, that's probably not very practical.

MR. NEUFELD: But if you wanted to replicate the kinds of environmental conditions you see in actual casework, that is something that would be desirable; would it not?

DR. COTTON: I don't think it's necessary. I--I'm not even sure that it's desirable because it would be--what they would be trying to do then would be make say a hundred sample sets, all of which were identical because they want to send every lab an identical sample set, and they would be doing it in a way that would lead to those things not being identical. And part of the goal of the proficiency test is to be able to compare one laboratory to the next. So it's really critical in the design of the test that all labs get equivalent samples.

MR. NEUFELD: Well, although it may be difficult, Dr. Cotton, would you agree that an outside laboratory, somebody creating a proficiency test, could consistently subject the samples that are going to be submitted to some types of environmental insults? Not necessarily all, but some types.

DR. COTTON: It may be possible for them to do that, but my understanding of how the proficiency tests are put together is that--a, that's not the case, and, b, in all the guidelines for proficiency tests to be made, that--I--and I don't think that requirement to make them that much like case samples is in the guidelines.

MR. NEUFELD: Well, Dr. Cotton, do you believe that it's possible, for instance, that when you're creating a proficiency test that's going to go out to many laboratories, that you could take those blood swatches on cotton, for instance, and put them in a room which has a uniformed temperature so they're all subjected to heat? Could that be done?

DR. COTTON: Sure.

MR. NEUFELD: And I think you said during your direct testimony that heat is one of the environmental insults which can actually cause the DNA to degrade.

DR. COTTON: Yes. I mean, given you're taking them into a room, you could subject them to however high you can crank a thermostat up I guess. But you could make them all uniform with a particular temperature in a room.

MR. NEUFELD: And you could also make them uniform with respect to a certain humidity in that room as well if you could control the amount of humidity in the room, couldn't you?

DR. COTTON: I suppose you could design a room to do that, but it--I don't know. Our air conditioning doesn't control the humidity too well. So I think you'd have to have a special design--you'd have to have a special piece of equipment to do that.

MR. NEUFELD: Dr. Cotton--

MR. CLARKE: I'm sorry.

MR. NEUFELD: I'm sorry.

MR. CLARKE: Can the witness finish her answer?

THE COURT: Yes, please.

DR. COTTON: You'd have to have a special piece of equipment, that is sort of like a cold room. A cold room is just like a huge refrigerator.

MR. NEUFELD: And, Dr. Cotton, is there a certain kind of light that can also affect the degradation of DNA?

DR. COTTON: Yes.

MR. NEUFELD: What kind of light is that?

DR. COTTON: Ultraviolet light.

MR. NEUFELD: And could you also then subject the various control specimens that you're going to send out for DNA testing to ultraviolet light at the same time? That's something that could be done, couldn't it?

DR. COTTON: You could, but I think, again, you'd have to have a special--you'd have to design a special piece of equipment or special room in which to do that kind of thing.

MR. NEUFELD: And would you agree, Dr. Cotton, that--well--I'm sorry. When you receive casework samples, you do not know the answer in advance, do you?

DR. COTTON: No.

MR. NEUFELD: The casework samples that come to Cellmark come from some kind of an external agency such as the Los Angeles Police Department; isn't that right?

DR. COTTON: That's right.

MR. NEUFELD: Do you agree that external proficiency tests where you don't know you're being tested on samples are the most realistic kind of proficiency tests to measure laboratory error rate?

DR. COTTON: I think both tests are equally well to do that.

MR. NEUFELD: Well, I'm asking you about which is more realistic. You agreed a moment ago, Dr. Cotton, that it's certainly more realistic when a laboratory doesn't know it's being tested than when it knows it's being tested. Would you agree with that?

MR. CLARKE: Objection. Asked and answered.

THE COURT: Overruled.

DR. COTTON: It's--it's much more--I mean, on a case, you don't know that you--wait. You don't know the answer. If you receive a proficiency test that looks like a case, then of course, that's a lot more like a case than a proficiency test that you know it's a test.

MR. NEUFELD: Okay. And similarly, Dr. Cotton, in an actual case, you said a moment ago the samples don't come from within Cellmark, they come from an external agency; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: So likewise, Dr. Cotton, in a proficiency test where the samples are coming from an external agency, that too would be a more realistic kind of proficiency test to measure laboratory error rate than one in which the samples come from within the laboratory?

DR. COTTON: It is a more realistic type of test when compared to a regular case. But I don't think that it's any better or any worse for looking at laboratory errors than an open proficiency test.

MR. NEUFELD: Dr. Cotton, are you familiar with that portion of the National Academy of Science report, "DNA Technology in Forensic Science" entitled "Laboratory Error Rates"?

DR. COTTON: I've certainly read it. I haven't read it recently.

MR. NEUFELD: Would you please take a look at pages 88 and 89?

DR. COTTON: Yes.

MR. CLARKE: Objection. Hearsay at this point.

THE COURT: Overruled. She can look at it.

(The witness complies.)

THE COURT: And while she's doing that, let me see counsel without the reporter, please.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: Mr. Neufeld.

MR. NEUFELD: Have you finished?

DR. COTTON: Yeah, I am.

MR. NEUFELD: Okay. Dr. Cotton, you've given an opinion about usability of different types of--usefulness--excuse me--of different types of proficiency tests. Have you considered, in reaching your own opinions on this subject, the National Academy of Science recommendations with respect to measuring laboratory error rate through proficiency testing?

DR. COTTON: No, I haven't.

MR. NEUFELD: You've never considered that at all?

DR. COTTON: I don't agree with their recommendations.

MR. NEUFELD: Well, I'm not asking you whether you agree with the National Academy of Science's recommendations, Dr. Cotton. What I'm asking you is whether or not these recommendations have been considered by you seriously before you arrived at your own opinions.

DR. COTTON: I read them, I thought about them and I have a different opinion than they do about the--whether or not what they're asking for is realistic and possible.

MR. NEUFELD: In reaching your own opinions on the subject of the utility of external blind proficiency testing, have you thus at least relied in part on what's contained in the NRC report, albeit you have disagreed or rejected, if you will, their recommendations?

MR. CLARKE: Objection. Unintelligible.

THE COURT: Overruled.

DR. COTTON: Well, because I don't agree with it, I would say I haven't relied on it. I haven't used this in directing our laboratory to do the types of proficiency testing that we do.

MR. NEUFELD: Well, let me try and understand what you're saying, Dr. Cotton. Are you saying that it's your position that you only rely on those portions of the NRC report that you agree with?

DR. COTTON: What I'm say--I don't know how to say it more clearly. There are portions of this report that I agree with. There are a substantial number of portions of the report that I do not agree with, that I think either are not well considered or are simply wrong.

MR. NEUFELD: So is it fair for me to say, Dr. Cotton, that you have only relied on those portions of the NRC report in arriving at your own opinions that you personally agree with?

MR. CLARKE: Objection. Assumes facts not in evidence.

THE COURT: Overruled.

MR. CLARKE: Actually misstates the evidence.

THE COURT: Overruled.

DR. COTTON: At the point that this report came out, I already had a substantial amount of experience at Cellmark and I had a much larger amount of experience working with DNA in general. I do not need this report to make my opinions.

MR. NEUFELD: I'm sorry, Dr. Cotton, but again, my question is, is it your position that you've only relied then for your own opinions on those portions of the NRC report that you agree with?

DR. COTTON: It's--what I'm saying is, I haven't relied on the report. If it happens that I agree with some things and disagree with some things, those things did not necessarily or have not necessarily played a role in my opinions about DNA typing and how it should be conducted.

MR. NEUFELD: Is it your professional and personal approach to the NRC report that if you don't agree with some of their recommendations, that you will not even take them into consideration in reaching your own conclusions?

MR. CLARKE: Objection. Argumentative.

THE COURT: Sustained. Let's move on.

MR. NEUFELD: Well, do you think, Dr. Cotton, that it is appropriate for scientists to give consideration to the opinions of other scientists with whom you disagree?

MR. CLARKE: Objection. Irrelevant.

THE COURT: Overruled.

DR. COTTON: What do you mean, give consid--you can certainly think about them. I mean, the whole point, if somebody says, "I don't agree with you," is to think about it and formulate what your opinion is and see if it's the same or different and think about what somebody said. But if you have thought about it and you don't agree with it, then that's the situation.

MR. NEUFELD: And as to these various portions of the NRC report that you--that you disagree with, have you given serious thought to what the authors' recommendations are and why they've articulated them?

MR. CLARKE: Objection. Asked and answered.

THE COURT: We've asked this question now three times.

MR. NEUFELD: Dr. Cotton, are you familiar with any of the scien--any scientific literature concerning the use of external blind proficiency tests on laboratories doing PCR testing in clinical medicine?

MR. CLARKE: Objection. Calls for hearsay.

THE COURT: Overruled.

DR. COTTON: No, I'm not.

MR. NEUFELD: Well, in your opinion, as an expert, Dr. Cotton, do you believe it would be important for someone in your laboratory to keep track of the rate of false positives for PCR testing in clinical medicine?

DR. COTTON: I don't--I don't actually have a really good answer for that. I'm not familiar with procedures in clinical medicine. We are familiar with procedures in forensic science. They very well may be different. Whether or not our quality assurance manager is familiar with clinical procedures, I can't tell you. I just don't know.

MR. NEUFELD: And some people, Dr. Cotton, say that a DNA test can only give you the right result or no result.

MR. CLARKE: Oh, excuse me. Objection. Hearsay, assumes facts not in evidence.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Have you ever heard that expression, Dr. Cotton, that a DNA test can only give you the right result or the wrong result?

MR. CLARKE: Objection. Vague.

MR. NEUFELD: I'm sorry. Can either give you the right result or no result. Have you ever heard that expression?

DR. COTTON: I don't know.

MR. NEUFELD: Well--

DR. COTTON: I mean, I'm hearing it now. I hear you saying it. Whether or not I've ever heard it before, I don't remember.

MR. NEUFELD: Well, now that you've heard it, Dr. Cotton, would you agree that that's not a correct statement?

MR. CLARKE: Well, objection. Irrelevant.

THE COURT: Overruled.

DR. COTTON: Would a DNA test either give you the right result or no result?

MR. NEUFELD: Right.

DR. COTTON: That's much too black and white of a statement.

MR. NEUFELD: And one of the reasons that it's much too black and white a statement, Dr. Cotton, is, I believe as you've already testified, a DNA test could give you a false positive?

DR. COTTON: It's possible that it could. It could also give you an inconclusive, could also give you a false negative. There's a lot of in between there.

MR. NEUFELD: And if the DNA test gives you a false positive, it means that you are getting a match between two samples that in fact come from different people; isn't that right?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that if one laboratory made many errors in external blind proficiency testing and another laboratory made few, that the laboratory which made many more is more likely to make a mistake in a given case?

MR. CLARKE: Objection. Irrelevant, assumes facts not in evidence, beyond the scope.

THE COURT: Overruled.

DR. COTTON: Given the generalization that you just stated, yes, I guess I would agree with that.

MR. NEUFELD: And you agree, Dr. Cotton, that interpretation of DNA typing results depends not only on the frequency of a DNA pattern, but on laboratory error rates as well?

DR. COTTON: No, I don't.

MR. NEUFELD: Well, do you agree, Dr. Cotton, that the strength of a DNA evidence depends not only on the frequency of the pattern, but on laboratory error rates as well?

MR. CLARKE: Objection. Argumentative.

THE COURT: Overruled.

DR. COTTON: No, I don't.

MR. NEUFELD: Well, Dr. Cotton, did you read that portion of the National Academy of Science report which discusses the role of laboratory error rates in assessing the weight of DNA evidence?

DR. COTTON: That--that's part of the couple pages you just pointed out to me; is it not?

MR. NEUFELD: Yes.

DR. COTTON: Yes, I read it.

MR. NEUFELD: And have you thought about those couple of pages prior to today as well?

DR. COTTON: Yes.

MR. NEUFELD: And have you considered seriously the points that the authors of the NRC report are making with regard to the importance of assessing the laboratory's error rate?

MR. CLARKE: Objection, your Honor. I think this has been asked and answered.

THE COURT: Overruled. It's different question.

DR. COTTON: Yes, I thought about it.

MR. NEUFELD: But you simply disagree with the National Academy of Science recommendations on this particular point; is that right?

MR. CLARKE: Objection. Calls for hearsay.

THE COURT: Sustained.

MR. CLARKE: Your Honor, may the jury--

MR. NEUFELD: Dr. Cotton, once again, are you saying that the reason you don't rely on this portion of the report is simply because you disagree with it?

MR. CLARKE: Objection.

DR. COTTON: No, I'm not.

MR. CLARKE: Asked and answered. Also irrelevant.

THE COURT: Sustained.

MR. NEUFELD: Well, would you agree, Dr. Cotton, that the measure of a laboratory's error rate is a separate and independent issue from the measurement of the frequency of a DNA profile?

DR. COTTON: Of course.

MR. CLARKE: Objection. I'm sorry. I'll withdraw it.

MR. NEUFELD: Sorry. I couldn't get your answer.

THE COURT: She said, "Of course."

DR. COTTON: Of course it is.

MR. NEUFELD: Well, do you agree with that portion of the NRC report which explicitly states--

MR. CLARKE: Well, excuse me, your Honor. Objection. Hearsay.

THE COURT: Sustained.

MR. NEUFELD: I'm not going to quote the portion.

THE COURT: It's still hearsay, counsel. I think--let's move on.

MR. NEUFELD: Dr. Cotton, do you agree with the sentiments of the NRC report--

THE COURT: Sustained.

MR. CLARKE: Objection. Irrelevant.

THE COURT: Wait. Wait. Sustained. Move on.

MR. NEUFELD: Well, would you agree, Dr. Cotton, that if someone was falsely implicated by an RFLP DNA test, it would much more likely be due to sample handling error or cross-contamination rather than due to coincidental match between people with the same RFLP profile?

DR. COTTON: If--yes. Sure.

MR. NEUFELD: Now, your laboratory has had at least a couple of instances where you had false matches due to sample handling error and cross-contamination; isn't that correct?

DR. COTTON: Yes. Two.

MR. CLARKE: Objection. Compound.

THE COURT: Overruled.

DR. COTTON: Two.

MR. NEUFELD: And using the definition of the four types of proficiency tests that I have given you in that diagram whose number escapes me--

THE COURT: 1153.

MR. NEUFELD: Thank you--on 1153, in 1993, how many of your proficiency tests fall into the category of external blind proficiency tests?

DR. COTTON: In 1993, we have very few in external because we--it's a complicated answer.

MR. NEUFELD: Well, do you prepare a chart where you list the proficiency tests that you run in a given year? Do you have a chart like that?

DR. COTTON: Yes, we do.

MR. NEUFELD: And on that chart, do you actually identify which of the proficiency tests are internal versus which ones are external?

DR. COTTON: Yes, we do.

MR. NEUFELD: And on that chart, do you also differentiate between those that are blind and those that are open?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree by the way, Dr. Cotton, that at least for forensic cases, there's a difference between doing a proficiency test on a paternity sample with a mother and a child and a purported father than there is in forensic casework proficiency testing?

DR. COTTON: Oh, sure. But we have to do paternity proficiency tests also.

MR. NEUFELD: Okay. So my question is, Dr. Cotton, if you look at your memo, will you be able to tell us in 1993 how many blind external proficiency tests you did of a forensic nature?

DR. COTTON: Blind exter--sure.

MR. NEUFELD: Okay.

DR. COTTON: There aren't any.

MR. NEUFELD: I'm sorry. What?

DR. COTTON: I can tell you right now, blind external, there aren't any.

MR. NEUFELD: Okay. And in 1992, Dr. Cotton, how many blind external proficiency tests utilizing forensic type samples did Cellmark participate in?

DR. COTTON: None. We have never done a blind external, received from an external agency proficiency tests because there is no external agency which provides those kinds of tests. So there is no way to get one.

MR. NEUFELD: So, Dr. Cotton, is to fair to say then, in the entire six years that your laboratory has been doing proficiency testing, there is not a single instance when you have ever been subjected to a blind external proficiency test?

DR. COTTON: That's exactly right.

MR. NEUFELD: Would you agree then, Dr. Cotton, that in the absence of being submitted to any blind external proficiency test, that you really have no scientific basis for estimating your laboratory's error rate?

DR. COTTON: No, I don't agree with that.

MR. NEUFELD: Are you aware, Dr. Cotton, that the DNA laboratories that type bloods for bone marrow transplant registry routinely are subjected to blind external proficiency tests?

MR. CLARKE: Objection. Assumes facts not in evidence.

MR. NEUFELD: Subject to connection.

THE COURT: Overruled. Are you aware of that practice, doctor?

DR. COTTON: No, I'm not.

MR. NEUFELD: So would it be fair to say, Dr. Cotton, that the only types of tests that you have available for estimating your error rate as far as proficiency tests goes are either those tests where you were testing yourself or those tests where you knew you were being tested; is that correct?

DR. COTTON: Yes. That's correct.

MR. NEUFELD: Dr. Cotton, can you cite a single article in the field of laboratory quality assurance which permits a laboratory to assess its own error rate based on open and internal tests?

DR. COTTON: No, I can't.

MR. NEUFELD: Now, Dr. Cotton--

MR. NEUFELD: I'm about to move on to something new, your Honor. I don't know if you want to break now.

THE COURT: 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, don't allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted to you. We'll stand in recess until 1:00 o'clock. All right. Dr. Cotton, you can step down.

(At 12:00 P.M., the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; MONDAY, MAY 15, 1995 1:02 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: Good afternoon, counsel. Back on the record. All parties are again present. Let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: Thank you, ladies and gentlemen. Please be seated. Dr. Cotton, would you resume the witness stand, please.

Robin Cotton, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: Let the record reflect we have been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: And Mr. Neufeld, you may continue.

MR. NEUFELD: Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

CROSS-EXAMINATION (RESUMED) BY MR. NEUFELD

MR. NEUFELD: Good afternoon, Dr. Cotton.

DR. COTTON: Good afternoon, Mr. Neufeld.

MR. NEUFELD: Now, Dr. Cotton, putting aside the--the absence of external blind proficiency tests at Cellmark, would it be fair to say that you have participated in a number of open proficiency tests since 1988?

DR. COTTON: Yes, we have.

MR. NEUFELD: And would it be fair to say that in--in these open--open proficiency tests that you have participated in you routinely would receive a few samples to examine or certainly no more than a handful of samples?

THE COURT: Vague.

DR. COTTON: Yes.

THE COURT: "Handful of samples."

MR. NEUFELD: That you would receive no more than, let's say, five samples in any proficiency test?

DR. COTTON: Yeah. I would say usually it is three or four per test.

MR. NEUFELD: Now, in this case, however, this case meaning People versus Mr. Simpson, you have received how many different samples from the Los Angeles Police Department to do DNA typing on?

DR. COTTON: (No audible response.)

MR. NEUFELD: If you need to look at your records to calculate that number, please do.

DR. COTTON: (Witness complies.) 23.

MR. NEUFELD: Excuse me?

DR. COTTON: 23.

MR. NEUFELD: Okay.

DR. COTTON: Well, that is, however, starting at 01 for our sample numbers. We went up to 23.

MR. NEUFELD: All right. Now, unlike those various open tests that you just referred to a moment ago where ordinarily you would have three or four samples given to you to examine, were there two proficiency tests that you were participating in in 1988 and 1989 where you received 50 samples in each?

DR. COTTON: One was 49 and the other was 50.

MR. NEUFELD: Okay. And those tests in 1988 and 1999 were sponsored by the California association of crime laboratory directors?

DR. COTTON: Yes, they were.

MR. CLARKE: Objection. I think the question misstates the evidence.

THE COURT: Overruled.

MR. NEUFELD: If I said `99, I meant 1989. I apologize.

DR. COTTON: I understood what you meant.

MR. NEUFELD: Now, let's take a look first at the proficiency tests run by the California association of crime laboratory directors that you participated in in the year 1988. First of all, in that proficiency test did you have any incorrect exclusions?

DR. COTTON: No, we didn't.

MR. NEUFELD: Now, in that particular test, Dr. Cotton, you were given these different samples and you were asked to type them and determine which, if any, matched any of the other samples; is that correct, in the same batch?

DR. COTTON: That's right.

MR. NEUFELD: And at a subsequent point in time were you provided with a legend produced by the California association of crime lab directors telling you which samples in fact matched which other samples?

DR. COTTON: Yes.

MR. NEUFELD: And when you were provided with that legend, Dr. Cotton, didn't they tell you that items 70, 72 and 76 should all match one another?

DR. COTTON: That may be right. I don't have my copies with me. Umm, I do actually have them in the building, but I don't have them down here with me, so I might need to look at yours.

MR. NEUFELD: Fine. Next in order--

THE COURT: 1154.

(Deft's 1154 for id = 6-page report)

MR. NEUFELD: Which is a six-page report from the California association of crime laboratory directors.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: I show you this exhibit, this five-page--I'm sorry, six-page document from the California association of crime lab directors and ask you if it refreshes your recollection as to whether or not items 70, 72 and 76 all come from the same source?

DR. COTTON: Yes, it does.

MR. NEUFELD: Okay. And now that it refreshes your recollection, is it in fact true that the way this test was set up that samples 70, 72 and 76 all originated from the same person?

DR. COTTON: Yes.

MR. NEUFELD: And when you did the DNA typing, "you" meaning Cellmark, not you personally necessarily, did the DNA typing on those three samples, didn't you conclude that although sample 70 and 72 matched one another, that sample 76 had a distinct pattern and did not match either 70 or 72?

DR. COTTON: That pretty much fits with my recollection, but of--if I'm remembering this group of three correctly, one of them is a mixture. You know, I don't have all my documentation of what we reported with me, so--

MR. NEUFELD: Well, Dr. Cotton, isn't it a fact--and by the way here, if you would like to refresh your recollection, here is Cellmark's report to the California association. And I would ask that this be marked next in line--next in order.

THE COURT: 1155.

(Deft's 1155 for id = 3-page report)

MR. NEUFELD: Which is a three-page document.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: I want you to look at this.

DR. COTTON: (Witness complies.) Okay. Do you want to ask me your question again now?

MR. NEUFELD: Certainly. May I have that back or do you need to look at it when you answer it?

DR. COTTON: For a series of questions regarding this test, if I could have a copy of both the CACLD table and my report, it would make it a lot easier for me to answer the questions more easily.

MR. NEUFELD: Okay. Let me just ask you this question, and I will give you the report before you answer the question if you need it. All right?

DR. COTTON: Okay.

MR. NEUFELD: First of all, didn't you say in your report on this particular test--

THE COURT: Excuse me, Mr. Neufeld, you need a foundational question. Do you recognize what it is?

MR. NEUFELD: Do you recognize this three-page document that I just showed you?

DR. COTTON: Yes, I do.

MR. NEUFELD: And is it your final report to the California association of crime laboratory directors with respect to your results on the 1988 proficiency test that they gave you?

DR. COTTON: Yes, it is.

MR. NEUFELD: And in that report, Dr. Cotton, didn't you state that the patterns obtained from stains numbered 70 and 72 were the same?

DR. COTTON: Yes.

MR. NEUFELD: And didn't you state in that same report that you did obtain a pattern for sample 76 that was suitable for comparison purposes but was not found to match the other samples tested?

DR. COTTON: Yes, we did say that.

MR. NEUFELD: And would you agree, Dr. Cotton, that since 76 is supposed to come from the same person as 70 and 72, the fact that you got a pattern but you failed to match it with 70 and 72 would be a wrongful--I'm sorry--would be a false exclusion?

DR. COTTON: I wouldn't phrase it that way, first of all, because I have to--I would need to determine whether that was this mixture that I was remembering. And secondly, you have to go back to the films to look at the two patterns that you are talking about and see if there is enough data in each of those. That is, if you can't--not making a match is sort of like saying it is inconclusive. We didn't actually even make a list in this report of things which were specifically excluded, so it may mean, based on the data, that we were unable to come to a conclusion, not that we literally said something was excluded and then it was not.

MR. NEUFELD: Well, Dr. Cotton, isn't it a fact that item 76 was not a mixture?

DR. COTTON: Let me come back to this. No, item 76 was not a mixture, but item 72 was a mixture.

MR. NEUFELD: What about item 70?

DR. COTTON: And item 70 was not a mixture.

MR. NEUFELD: Right. So item 76, according to the way this test was set up, should have matched item 70; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: Okay. And even though you got a pattern for item 76, which was not a mixture, you did not state that it matched item 70; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And so the failure to declare that match would be a mistake, wouldn't it?

DR. COTTON: It--

MR. NEUFELD: By the definition of the test?

DR. COTTON: It would if the two patterns were both of equal quality and we just missed it. Remember that at the--remember, you don't--I guess you don't really know this, but each of these samples, these 49 samples, was extracted as if it were a sexual assault sample because we had no information, and in that type of extraction, which is not something that was done in this particular case, you try to separate DNA from--from a sperm fraction from any DNA that is in something else. So of the 49 samples you end up with really two samples from each of the 49, giving you a total of 98, and so you have 98 patterns which were manually visibly compared to one another, and if the patterns are both good, and I can't recall if they are, the fact that we missed seeing it in all this comparison of 98 patterns with, you know, every other pattern of the 98 is a--is an error in finding that match, but in my mind does not--I do not think of it as a false exclusion, a wrongful exclusion.

MR. NEUFELD: Well, I appreciate that you don't consider it a wrongful exclusion, but--and you said that one of your concerns was that you don't know how clear the pattern was; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: Well, would it--the fact that your report states that the pattern for 76 was suitable for comparison purposes, would that refresh your recollection as to whether the pattern for 76 was in fact suitable for comparison purposes?

DR. COTTON: Right.

MR. NEUFELD: Would it?

DR. COTTON: I understand that it says that, but that doesn't give me any information. The mixture pattern was a problem and it doesn't provide any information about the pattern for 70, so--

MR. NEUFELD: Excuse me, Dr. Cotton.

MR. CLARKE: I'm sorry, could the witness finish her answer, please?

THE COURT: No. "So" is a pause clearly. Proceed.

DR. COTTON: Well, what I'm saying is I don't have enough information in front of me to give you a clearance as to whether or not that was not mentioned, because it was basically an inconclusive or whether or not we simply missed the--seeing the match and--and we could have made a match and did not.

MR. NEUFELD: Dr. Cotton, is there any qualification in this report, when you are describing the pattern comparisons of sample 70, which is not a mixture, with sample 72?

DR. COTTON: No, there isn't.

MR. NEUFELD: And of course in your laboratory you wouldn't have called a match if that pattern on item no. 70 wasn't sufficiently clear and robust to compare with 72; isn't that right?

DR. COTTON: That would be correct in general, but I remember that--I mean, I've looked at these films on several different occasions. They are not as good as the films that we produce now, and so there are things about those films that might lead to problems in interpretation.

MR. NEUFELD: And Dr. Cotton, you wouldn't have said in your report, quote, referring to item no. 76 "These patterns were suitable for comparison purposes but were not found in the other samples tested," unquote, unless that was true, would you?

DR. COTTON: No.

MR. NEUFELD: Okay. One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Next in order.

THE COURT: 1156.

(Deft's 1156 for id = photograph)

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, I show you this photograph and ask you is that the photograph reflecting your comparison of samples 70, 72 and 76 that we were just discussing?

DR. COTTON: Yes, it seems to be, except these weren't all on the same film, so this appears to be various--one, two, three, four, five patterns from different films lined up to be able to photograph them.

MR. NEUFELD: Okay. But the actual lanes themselves represent the samples that were tested by your laboratory in this proficiency test, correct?

DR. COTTON: Yes. Can I ask a question about the picture? Do you know whether or not the labeling across--the labeling across the top must have been put on in order to make the picture, so I--

MR. NEUFELD: The label across the top, very much the same way the label was put on the autorads in this particular case.

DR. COTTON: Okay.

MR. NEUFELD: So could you identify which lanes are attributable to which samples? The same thing was done in this photograph. Does that help?

DR. COTTON: Yes, it does.

MR. NEUFELD: Okay. Okay. With the Court's permission I would like to put it up on the elmo.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Your Honor, what is the easiest way for me to point to different lanes for the witness?

THE COURT: Probably the power point.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, would you like to step down? I think it would be easier for you to see this.

DR. COTTON: I would.

MR. NEUFELD: Now, in this particular proficiency test series of autorads, it is basically divided up into three different samples. As you can see at the top of the photograph there, there is sample 70, sample 72 and finally sample 76. Do you see that?

DR. COTTON: I do.

MR. NEUFELD: Okay. And the lane that represents the non-semen fraction of sample 76 is the second lane from the right where the pink arrow is pointing at. Do you see that?

DR. COTTON: Yes, I do.

MR. NEUFELD: Okay. And now, what I would like you to do is not look at the mixture, but I would like you to compare--can we have a pink dot just so we will have a permanent point of reference there, so the witness can go back and forth. All right. Now, what I would like you to do is compare the pattern that you see in that lane, the second lane from the right, to go all the way across to sample 70 to the third lane which is also the non-semen fraction of sample 70. Do you see that?

DR. COTTON: Yes, I see it.

MR. NEUFELD: Okay. Can you put a mark there as well, please. Okay.

MR. NEUFELD: Now, Dr. Cotton, according to the providers of this test, the profile on item 70 that the pink arrow is looking at on the left should match the pattern in sample 76 where there is an arrow there on the far right; isn't that correct?

DR. COTTON: No, I don't think so.

MR. NEUFELD: Well, both sample 70 and sample 76 are not--are not mixtures; isn't that correct?

DR. COTTON: That's right. I think you are misreading their key, because it is sample 72 that is a mixture of 70 and 76 and 76 clearly does not match 70, but 70 should match one pattern in 72 and 76 should match the other pattern in 72.

MR. NEUFELD: One moment.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, again referring you to the code that was given to you by the California association of crime laboratory directors after you did these tests, wouldn't you agree that sample 70 is simply semen, not a mixture that was collected on 7/85? Would you agree with that?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that for item no. 76 it is also the same semen that was drawn on July of 1985, according to this log?

DR. COTTON: That is not--yes, it is semen, but it is not the same as 70. I don't think that is the intention of that sample description.

MR. NEUFELD: On the face of this sample description, Dr. Cotton, would you agree that it says that item 70 and item 76 come from the same person?

DR. COTTON: I don't think that is what that means.

MR. NEUFELD: From looking at this report, is it your understanding that the California association of crime laboratories grouped all samples that came from the same person in the same box?

DR. COTTON: What they've done is grouped all samples that could be related in the same box and these are grouped together, (Indicating), because both 70 and 76 should match 72, because 72 is a mixture, so that is why they are in the same box. But it doesn't mean, and I'm sure that they could confirm this, that 70 and 76 were the same. I mean, there wouldn't be any point of making a mixtures of 70 and 76 if they were from the same person, and so I feel confident that that is what that means.

MR. NEUFELD: Okay. One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: If we work off of your premises, Dr. Cotton, then nonetheless, according to this log, sample 76 should be consistent with the mixed stain in sample 72; isn't that correct?

DR. COTTON: Yes, you are absolutely right.

MR. NEUFELD: And would you agree, Dr. Cotton, that in your report you failed to state or include 76 as being consistent with the profile in 72?

DR. COTTON: Yes, that's right, we did.

MR. NEUFELD: You can have a seat again, please.

DR. COTTON: (Witness complies.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: One moment, your Honor.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: With the Court's permission I would like to put up next in order which--

THE COURT: 1157.

MR. NEUFELD: It is not actually--it is going to be one page of the--of the six-page report of the CACLD.

THE COURT: All right. Which page?

MR. NEUFELD: It is going to be page 5.

THE COURT: All right. Page 5 of 1154.

(Brief pause.)

MR. NEUFELD: Okay.

THE COURT: You need to clear the power point there, Mr. Harris. Thank you.

(Brief pause.)

MR. CLARKE: Your Honor, I'm going to raise an objection as to hearsay at this point.

THE COURT: Sustained.

MR. NEUFELD: Dr. Cotton, did you say you recognized this six-page report as a report that you received from the California association of crime laboratory directors assessing your results in this proficiency test?

DR. COTTON: Umm, what I did was look at the two keys and I recognized them. If you would like me to look at the six pages, then I can--

MR. NEUFELD: Please do. I'm sorry, I thought you had.

DR. COTTON: (Witness complies.) The report was, I believe, not just to us; the other two labs that participated and other people in--within the CACLD.

MR. NEUFELD: But this is an accurate copy of the report that you received from the California association of crime laboratory directors regarding the results of the 1988 proficiency tests?

DR. COTTON: Yes, it is.

MR. NEUFELD: And by the way, when you ordinarily participate in proficiency tests, is it the ordinary course of business that the provider of the proficiency test furnishes the participant with a report evaluating your performance?

DR. COTTON: Yes, it is.

MR. NEUFELD: And is this report that type of report?

DR. COTTON: Yes.

MR. NEUFELD: Your Honor, with the Court's permission I would now like to put up page 5.

MR. CLARKE: Same objection.

THE COURT: Sustained. Do you have an exception?

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: And when these proficiency tests are given to laboratories such as your own, is the provider of the proficiency test under an obligation to report the results accurately?

DR. COTTON: Yeah, I think they certainly would try to do that. I have seen mistakes in reports, but you know, everybody, when they do this, is trying to report the results accurately.

MR. NEUFELD: And that would be the general obligation of any provider of this type of report?

DR. COTTON: Yes.

MR. NEUFELD: I would offer the page again, your Honor. I think it is a business record exception, your Honor.

THE COURT: Not with this foundation.

(Discussion held off the record between Defense counsel.)

THE COURT: You are missing three points at this point.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, was this report sent to you in the ordinary course of business?

DR. COTTON: Yes, it was.

MR. NEUFELD: And is a copy of this report actually retained by you in your record as part of the or in the course of Cellmark's business?

DR. COTTON: Yes, it is.

MR. NEUFELD: Again, your Honor, I believe that--

THE COURT: Counsel, why don't you take a look at the evidence code. You are still missing a few items.

MR. NEUFELD: One moment, your Honor.

(Brief pause.)

THE COURT: Doctor, are the results that are contained in this report recorded at or near the time of the events that it reflects?

DR. COTTON: Since I didn't participate in writing the report, I wouldn't know. I mean, I know that it was done after the proficiency tests were completed, but that is all I know in terms of its timing.

THE COURT: And who maintains these records?

DR. COTTON: They would be maintained by the CACLD.

THE COURT: And are they relied upon as being accurate by those persons, members of that organization?

DR. COTTON: I assume so.

MR. NEUFELD: With the Court's help, may I now publish page 5?

THE COURT: Please.

MR. NEUFELD: Thank you. Thank you very much, your Honor.

THE COURT: I am just trying to save some time here.

MR. NEUFELD: I appreciate it.

MR. CLARKE: I'm sorry, I still have an objection as to at least one of the elements, your Honor.

THE COURT: Overruled.

(Brief pause.)

MR. NEUFELD: Now, Dr. Cotton, in this particular test you received 49 samples from the California association of crime laboratory directors; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: And in fact the data that applies to Cellmark would be in the column on the far right of that particular exhibit?

DR. COTTON: That's right.

MR. NEUFELD: And of the 49 samples that you received, you were able to generate results on 44 of those 49; is that correct?

DR. COTTON: Yes. We--yes, we have some kind of DNA results from 44.

MR. NEUFELD: And so as to the remaining five samples, that would be the third number in that column, you were unable to generate DNA results?

DR. COTTON: Yes, that is what the report says.

MR. NEUFELD: And now the fourth item on that list is a no. 1; is that correct, with a series of little asterisks next to it?

DR. COTTON: That's right.

MR. NEUFELD: And that no. 1 indicates that out of the 44 samples that you were able to type that you made one incorrect match; isn't that correct?

DR. COTTON: Yes, that's correct.

MR. NEUFELD: And when you say one incorrect match, that would be the equivalent of one false positive; isn't that correct?

DR. COTTON: That's correct.

MR. NEUFELD: Now, the way you got this false positive, Dr. Cotton, on this particular proficiency test, that is there were two samples, namely 57 and 58, that came from the same person; isn't that right?

DR. COTTON: Well, again, I don't remember the sample numbers, but there were two samples--you can go on and I'm pretty sure I can follow you without the specific sample number.

MR. NEUFELD: Let me show you a photograph. Next in order--let me show you, Dr. Cotton, what is Defense 1157, next in order.

MR. CLARKE: Sorry. Could I see it, please?

MR. NEUFELD: Oh.

(Deft's 1157 for id = autorad)

MR. NEUFELD: Dr. Cotton, does that photograph appear to illustrate the banding patterns for three different samples that you tested in that proficiency test; namely, 57, 58 and 59?

DR. COTTON: Yes, it does.

MR. NEUFELD: With the Court's permission I would like to put it up on the elmo.

THE COURT: Yes.

(Brief pause.)

THE COURT: I think we need the numbers at the top, Mr. Harris.

MR. NEUFELD: Yes.

THE COURT: Thank you.

MR. NEUFELD: Now, Dr. Cotton, if you need to step down, please do.

DR. COTTON: (Witness complies.)

MR. NEUFELD: When you did the DNA testing on these three different samples, 57, 58 and 59, did you utilize what you earlier testified to in this trial as a single locus cocktail?

DR. COTTON: Yes, we did.

MR. NEUFELD: And that is a situation where instead of simply probing the DNA with one genetic marker, you do more than one genetic marker at the same time?

DR. COTTON: That's right.

MR. NEUFELD: And that is how you produce more than two bands in a lane; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: And would you place an arrow next to 57 down on the lane.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, is that profile the DNA profile that the pointer is pointing at, the DNA profile from sample 57?

DR. COTTON: Yes, it is.

MR. NEUFELD: Okay. All right.

MR. NEUFELD: And--

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: And Dr.--whoops--and Dr. Cotton, is that second arrow pointing at the DNA profile representing sample 58?

DR. COTTON: Yes, it is.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Is that arrow now pointing to sample 58 as well?

DR. COTTON: Yes.

MR. NEUFELD: Okay.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: And Dr. Cotton, is the third arrow now pointing at DNA profile, the sample 59?

DR. COTTON: Yes.

MR. NEUFELD: Now, in this particular proficiency test Dr. Cotton, sample 57 and 58 came from one person, correct?

DR. COTTON: Can I look at the key?

MR. NEUFELD: Sure.

(Brief pause.)

DR. COTTON: Yes, that's right.

MR. NEUFELD: And sample 59 comes from a different person?

DR. COTTON: 59 should have come from a different person.

MR. NEUFELD: Right. Okay. Now, when you analyzed these three samples at Cellmark, were they all processed as part of the same batch?

DR. COTTON: I think that they were, but since I was not--I wasn't really supervising any work in the laboratory at the time that this test was done, the records, if I remember correctly, indicate that they were processed in two separate batches, so it is possible that 59, 58 and 57 were processed at the same time.

MR. NEUFELD: Would you return to your seat, please.

DR. COTTON: Sure. (Witness complies.)

MR. NEUFELD: Thank you. And would it be fair to say, Dr. Cotton, that somehow during the processing of these samples that either--that DNA from either sample 57 or sample 58 was accidentally put into the tube with sample 59?

DR. COTTON: Yes.

MR. NEUFELD: And that mistake led to the false match of 59 with sample 57 and 58; isn't that correct?

DR. COTTON: That's correct.

MR. NEUFELD: And wouldn't you agree, Dr. Cotton, that the bands in this false match are as strong and as clear as the bands in the match between Mr. Simpson's sample and item 5 to in this case?

MR. CLARKE: Excuse me. Objection, argumentative, your Honor. Also irrelevant.

THE COURT: Sustained.

MR. NEUFELD: Dr. Cotton, with respect to band density and relative band densities, would you agree that the bands in this proficiency test where you had a false match between 59 and 57 and 58, are as dense as the bands in item 52 in our case?

MR. CLARKE: Same objection, your Honor.

THE COURT: Sustained.

MR. NEUFELD: Argumentative.

THE COURT: It is irrelevant.

MR. NEUFELD: May we have a side bar, your Honor?

THE COURT: Proceed.

MR. NEUFELD: Did you say earlier during your testimony, Dr. Cotton, that at the time you did the proficiency testing in this--in 1988 and 1989, that you were not producing as high quality autorads as you are currently producing in your laboratory?

DR. COTTON: Yes, I did.

MR. NEUFELD: Given that statement, Dr. Cotton, wouldn't you agree that the banding profile in item 59 and its comparison with item 57 is as high quality a banding pattern as the banding pattern you have comparing 52 with Mr. Simpson's reference sample in this case?

MR. CLARKE: Same objection.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, would you agree that just by looking at the photograph of the autorads in this case, that there is no way just by looking at them that you can tell that you had in fact gotten a false match?

DR. COTTON: Yes, I agree with that.

MR. NEUFELD: And would you agree that the reason that you have this false match is because the original sample that was in the tube for 59 was so degraded as to not be observable?

MR. CLARKE: Objection. Same objection, same grounds.

THE COURT: Overruled.

MR. CLARKE: Also calls for speculation.

THE COURT: Overruled.

DR. COTTON: I don't think we know whether it was degraded or it was just too small of a quantity.

MR. NEUFELD: But both of those explanations could produce a result where you don't see a DNA pattern; isn't that right?

DR. COTTON: Oh, yes.

MR. NEUFELD: And in our case, Dr. Cotton, had the DNA, the original DNA from the Bundy drops been so degraded due to handling or packaging or processing, such that you wouldn't see a DNA pattern in the original sample and then it was cross-contaminated with Mr. Simpson's reference sample, would you also have this same phenomena?

MR. CLARKE: Objection. Assumes facts not in evidence, also calls for speculation.

THE COURT: Sustained.

MR. NEUFELD: Well, would you agree, Dr. Cotton, that this type of phenomena that you observed here for sample 59 can occur whenever the original sample is so degraded that it will not leave a visual pattern and is then contaminated with another sample of DNA?

MR. CLARKE: Same objection; same grounds.

THE COURT: Overruled.

DR. COTTON: Yes, I would.

MR. NEUFELD: And Dr. Cotton, had the--had you then been asked to type a frequency for this particular match, that frequency would indicate a very rare event, would it not?

MR. CLARKE: Objection, irrelevant. Also assumes facts not in evidence, calls for speculation.

THE COURT: Are you speaking of 1157, the patterns that are here?

MR. NEUFELD: Yes.

THE COURT: Overruled.

DR. COTTON: Yes, you would type--you would make a frequency and it would almost certainly indicate that banding pattern was a rare event.

MR. NEUFELD: In fact, Dr. Cotton, for this particular banding pattern, didn't you generate in your report to the CACLD that it had a frequency of approximately one in 1.8 billion?

DR. COTTON: If you are reading to our report, then in--yes. I know that we generated frequencies. Obviously I can't remember what the frequency was for a particular pattern.

MR. NEUFELD: Well, please take a look?

DR. COTTON: (Witness complies.) Yes, you read it correctly.

MR. NEUFELD: And so what you are saying in this particular report is the frequency of that match between item 57 and item 59 occurs in the population with a frequency of approximately one--I'm sorry--occurs with a frequency of approximately one in 1.8 billion people; is that right?

DR. COTTON: Right. We are seeing the frequency of the pattern. Not the frequency of the match, but the frequency of the pattern would be--well, for that report it says 1.8 billion.

MR. NEUFELD: Well, if had been a real case, item 57, 58 and 59, and not simply a proficiency test, you would have declared a match between item 57 and 59; is that correct?

DR. COTTON: Yes, that's right, and we would have also generated a frequency.

MR. NEUFELD: And the frequency that you would have generated would have been one in 1.8 billion people, correct?

DR. COTTON: Yes.

MR. NEUFELD: But in fact in this particular example there was a 1 in 50 chance that it was a false positive; isn't that correct?

MR. CLARKE: Objection, argumentative.

THE COURT: Sustained.

MR. NEUFELD: Well, was it a one in 50 chance that it was a false positive in this particular proficiency test?

MR. CLARKE: Well, objection, no foundation.

THE COURT: Sustained.

MR. NEUFELD: You were given 50 samples to look at, were you not?

DR. COTTON: Yes.

MR. NEUFELD: And on one of the 50--

DR. COTTON: 49.

THE COURT: We've got a Collins problem here, counsel.

MR. NEUFELD: Well, then let me ask you this simple question, Dr. Cotton. I hope it is simple. In this particular instance you said the frequency of the pattern was one in 1.8 billion people; is that right?

DR. COTTON: Yes.

MR. NEUFELD: But in fact it is a false positive between 59 and 57, isn't it?

DR. COTTON: Yes, it is.

MR. NEUFELD: So the one in 1.8 billion would incorrectly create some value to that match which would be a distortion, wouldn't it?

MR. CLARKE: Objection, argumentative, also irrelevant.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Well, would you agree, Dr. Cotton, that since 59 and 57 don't match it would be wrong to suggest, in that particular instance, that that match is valued at a frequency of one in 1.8 billion people?

DR. COTTON: You keep referring to a value of a match. The frequency doesn't tell you anything except how often you would see this banding pattern, so the frequency is only that. It doesn't say anything more than that. And yes, you are correct, this is a false match. This is an incorrect match. It was caused by laboratory error.

MR. NEUFELD: Because it is a false positive match that number of one in 1.8 billion doesn't apply to the frequency of the pattern in lane 59; isn't that correct?

MR. CLARKE: Objection, irrelevant, also misleading.

THE COURT: Overruled.

DR. COTTON: Well, it actually still applies to the frequency of that pattern. The frequency of that pattern is whatever it is. In fact, that pattern matches because it is the same DNA as I actually believe it is 58 that that--we demonstrated that sample came from. It is like you are talking about--I'm hearing what you are asking is talking about apples and oranges.

MR. NEUFELD: Well, Dr. Cotton, would you agree that if this particular proficiency test was a real case that the statistic of one in 1.8 billion would be irrelevant if in fact you knew it was a false match between 59 and 57?

MR. CLARKE: Objection, argumentative. Also asked and answered.

THE COURT: Overruled.

DR. COTTON: Yes, it would be irrelevant.

MR. NEUFELD: Thank you.

MR. NEUFELD: Now, after you got this false positive in this series of proficiency tests in 1988, did you make changes in your procedures in an attempt to prevent or at least to minimize the likelihood that DNA from a sample could cross-contaminate another sample?

DR. COTTON: We made changes in our procedures to specifically address the way that this particular contamination occurred.

MR. NEUFELD: And did you believe that when you made those changes that that took care or solved the problem?

DR. COTTON: Well, I think it solved this problem. That--that clearly doesn't imply that it could solve every possible problem.

MR. NEUFELD: But in 1989, the very next year, you participated in a second round of California association of crime laboratory directors proficiency testing, didn't you?

DR. COTTON: Yes, we did.

MR. NEUFELD: And in that second round of testing you got another 50 samples, didn't you?

DR. COTTON: Yes, we did.

MR. NEUFELD: And you got another false positive in this next batch, didn't you?

DR. COTTON: Yes, we did.

MR. NEUFELD: Now, this again was caused by DNA from one sample cross-contaminating a second sample, was it not?

DR. COTTON: That's right.

MR. NEUFELD: And did you conduct a full investigation to try and discover what caused this cross-contamination?

DR. COTTON: Yes, we did.

MR. NEUFELD: And in that investigation did you conclude that the amount of the contaminant which caused the false positive was somewhere between 20 and 50 nanograms of DNA?

DR. COTTON: Yes, we did.

MR. NEUFELD: And in this particular case, Dr. Cotton, this case being the Simpson case, wasn't it your estimate that the quantity of DNA in lane item sample 52 was approximately 25 nanograms of DNA?

DR. COTTON: It was my estimate that the amount of DNA that is participating in giving that pattern is 25 to 50. The total amount of DNA in that sample was more like 200, and I remember giving an explanation of where those two numbers came from.

MR. NEUFELD: But the amount of DNA that is actually in the lane is somewhere around 25 nanograms? Was that your initial estimate?

DR. COTTON: The amount of DNA that is giving the pattern is between 25 and 50. The amount of DNA handled with that sample in total is about 200.

MR. NEUFELD: So the amount of DNA that is 25 to 50 nanograms in that particular item, at least as it appears in the RFLP test, would be within the 25 to 50 nanogram range that you attributed to the cross-contamination in the proficiency test; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: Now, how did you go about attempting to figure out how you got this false match in 1989?

DR. COTTON: We went into all the handwritten notes. Two different analysts had done the samples. We spoke with the analysts to find out what samples they had done adjacent to one another. And the reason was--when I say "adjacent," that the test-tube rack holds, I don't know, say, 15 samples across the top row and another 15 samples across the bottom row, but anyway, about 15 could be side-by-side. We knew that--we knew a whole lot of places where we could figure out a whole lot of places where the contamination didn't occur, and so--we were finally able to analyze that the contamination had to have occurred in the extraction of the sperm fraction. Again, everything was extracted as if it could have a non-sperm and a sperm fraction, it could have occurred in the extractions of the sperm fractions, and the samples that were involved in producing the contamination were worked side-by-side. So we were able to eliminate other places where it could have occurred, for example, as you load the gel. It couldn't have occurred as you load the gel because the two samples weren't loaded side-by-side. So anyway, we narrowed it down to this one section and beyond that we weren't able to definitively say exactly how the contamination occurred. We could just say it occurred in these series of steps.

MR. NEUFELD: Now, so what you did, in other words, even after this thorough investigation on your part, was to narrow it down to about what point in time the cross-contamination occurred; is that right?

DR. COTTON: Right, what series of steps in the analysis that it occurred.

MR. NEUFELD: And you determined that it happened at some point during the extraction process?

DR. COTTON: Yes, in dealing with the sperm fractions.

MR. NEUFELD: But even to this day, Dr. Cotton, would it be fair to say that you don't know how the accidental contamination occurred during the extraction process?

DR. COTTON: Yes, that would be fair to say that.

MR. NEUFELD: And would it also be fair to say that this cross-contamination, this accidental cross-contamination happened in spite of the fact that all of the sample transfers were witnessed by a second person to make sure that no errors occurred?

DR. COTTON: You are exactly right.

MR. NEUFELD: And again, Dr. Cotton, after you got this second false positive, did you make certain changes in your protocol again to try and avoid this type of problem from recurring in the future?

DR. COTTON: Yes, we did.

MR. NEUFELD: And what changes did you make?

DR. COTTON: We mandated that the DNA extractions for the known samples could not be done out on the bench at the same time as the DNA extractions from the evidence samples.

MR. NEUFELD: Would the DNA extractions from the known sample be put into a different extraction rack than the DNA samples from the evidence?

DR. COTTON: They simply wouldn't be done at the same time.

MR. NEUFELD: They would still be in the same rack?

DR. COTTON: No, no, no, no. You don't--

MR. NEUFELD: I'm sorry, I thought you mentioned before there was this rack and it might have 15 samples in it or some such number. Did you say something to that effect?

DR. COTTON: I did, in talking about the CACLD analysis.

MR. NEUFELD: Well, do you also have a similar kind of rack process when you are analyzing case work?

DR. COTTON: Yes, we do.

MR. NEUFELD: So what I'm asking you is under your current protocol will you ever have the extraction from the reference sample at the time of extraction sitting in the same rack as the evidentiary specimens?

DR. COTTON: No, we don't.

MR. NEUFELD: And based on your experience, Dr. Cotton, and your expertise, would you agree that a laboratory which places the reference sample at the time of extraction in that same rack with the evidentiary specimens runs the risk of falsely incriminating innocent people?

MR. CLARKE: Well, objection, argumentative.

THE COURT: Sustained.

MR. NEUFELD: Dr. Cotton, would you agree that a laboratory that extracts the reference sample and puts it in the same rack, same extraction rack as the evidentiary specimens, runs the risk of getting false matches between the reference sample and the evidence?

MR. CLARKE: Objection. Assumes facts not in evidence, also calls for speculation.

THE COURT: Overruled.

DR. COTTON: Well, based on our experience and that that happened in our lab, then obviously it is possible.

MR. NEUFELD: Since 1989 there have been no more CACLD proficiency tests, have there?

DR. COTTON: No, there haven't.

MR. NEUFELD: And since 1989 I believe you said you haven't participated in any proficiency tests where you have been asked to handle more than a dozen samples; is that correct?

DR. COTTON: Well, I think I said we haven't--the proficiency tests normally have three or four samples.

MR. NEUFELD: So certainly there haven't been any with a dozen?

DR. COTTON: No, there aren't.

MR. NEUFELD: I believe you also said in this case you have been asked to analyze 23 samples?

DR. COTTON: In this case in total we analyzed two samples. That was done over a relatively long period of time, so they weren't all analyzed--they weren't all received at the same time and of course they weren't all analyzed at the same time.

MR. NEUFELD: And Dr. Cotton, these false matches that you made on these open proficiency tests, they were made during the first two years that your laboratory was doing DNA typing?

DR. COTTON: Yes.

MR. NEUFELD: Now, would it be fair to say that you have been improving your technique over the last six years?

DR. COTTON: That is the goal.

MR. NEUFELD: But I think you also said that you have no control over the possibility of cross-contamination that occurs on samples before you receive them?

DR. COTTON: Yes, that is obvious.

MR. NEUFELD: And in this case every sample that you received was initially collected, packaged and processed by the Los Angeles Police Department?

MR. CLARKE: Objection, assumes facts--also lack of foundation.

THE COURT: Well, we have been through this series of questions about five times now.

MR. NEUFELD: It is a foundation question for the next one and there is no other question on that, your Honor. With the Court's permission I would just like to ask that one question.

THE COURT: Proceed.

DR. COTTON: Well, that is my understanding.

MR. NEUFELD: Now, since you became involved with the Los Angeles Police Department, have you ever been asked to review the Los Angeles Police Department's procedures that were used in this case?

DR. COTTON: No, I haven't.

MR. NEUFELD: Do you have any personal knowledge, as a profession, as an expert, as to the extent that the Los Angeles Police Department has been subjected to external blind proficiency testing?

MR. CLARKE: Objection, beyond the scope. Also assumes facts not in evidence.

THE COURT: Sustained.

MR. NEUFELD: Would you agree, Dr. Cotton, that you are more reliable now as a laboratory than you were in the first two years of your operation when you made these two false positives on the CACLD tests?

MR. CLARKE: Objection, argumentative.

THE COURT: Overruled.

DR. COTTON: I don't know that because we made these errors in the tests that we were unreliable in our other work. I--I don't know how to answer that question.

MR. NEUFELD: Well, let me ask you this, Dr. Cotton: Do you think that you are still getting false positives with the same degree of frequency now that you got them in those two proficiency tests in 1988 and 1989?

DR. COTTON: Certainly based on our current proficiency test results we are not.

MR. NEUFELD: And do you know, Dr. Cotton, as to how long the LAPD have been doing DNA case work before they did the work in this case?

THE COURT: Sustained.

MR. CLARKE: Objection, beyond the scope.

MR. NEUFELD: No further questions of the witness, your Honor.

THE COURT: Mr. Clarke, are you ready?

MR. CLARKE: Could we take a break, your Honor?

THE COURT: Okay.

MR. NEUFELD: Your Honor, with the Court's permission I would like to substitute 1157-A, which is the printout, for 1157.

THE COURT: Yes.

(Deft's 1157-A for id = photograph)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: I'm sorry, there is both--a photograph which is 1157 and a photograph which is 1157-A.

THE COURT: The one which the arrows are on, correct.

MR. NEUFELD: That's correct.

THE COURT: All right. We will add 1157-A in addition.

MR. NEUFELD: Thank you.

THE COURT: Ladies and gentlemen, as I mentioned to you, every time we shift I will allow the attorneys time to reorganize their exhibits. Please remember all my admonitions to you. This will only be about, Mr. Clarke, about fifteen minutes?

MR. CLARKE: That's fine, your Honor.

THE COURT: All right. Ask the jury to step back in the jury room. And we will stand in recess for fifteen.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record. I'm sorry. Mr. Neufeld.

MR. NEUFELD: Just two very brief matters of housekeeping, your Honor. One is, I would like to have made a Court's exhibit that document that I showed the Court as a good faith basis for asking about Fung and Mazzola's DQ-Alpha typing.

THE COURT: Certainly. We'll make that Defense exhibit 1158.

(Deft's 1158 for id = document)

THE COURT: Out of the presence. Starting my four hundred and first page of notes.

MR. NEUFELD: And one other matter, your Honor, is that we still have this problem with the frequencies on the mixed stains. I'm told by Dr. Thompson that although he offered to meet with the other parties at lunch time, that offer was rejected. And we have this problem of these numbers. Now, you heard and you received the numbers that Dr. Thompson came up with simply following the NRC method, which is to aggregate the frequencies from the discovery that they gave us.

THE COURT: All right. Mr. Neufeld, let me cut to the chase. Mr. Clarke, what's the prognosis of getting together and seeing if we can agree upon the aggregate numbers?

MR. CLARKE: I just didn't hear the last part, your Honor.

THE COURT: That we can agree on the aggregated numbers.

MR. CLARKE: That--what I've been waiting for is, if the Defense will offer us a set of numbers--and they've done that as to DQ-Alpha on the steering wheel I believe--we will be glad to review them. It hasn't gone any further than that. And I think to say that I rejected an opportunity to meet with the Defense is a bit funny since there's simply a lot going on at the moment. But yes, if they will offer us some numbers, we will be happy to look at it.

THE COURT: Well, the problem is, it's your number. So you need to offer it. But using this methodology, when do you think you can get us some numbers or similar methodology?

MR. CLARKE: Okay. Under--and I would like to address again the Court about that manner and I don't know if the Court wants to take that up--manner, not matter. Manner of calculation. Does the Court wish to take that up now or following the redirect, recross, et cetera? Well, Dr. Cotton--maybe I can short-circuit. Dr. Cotton has told me, and although we don't agree that this is what should be done, that this method could be done I believe in about an hour or--

DR. COTTON: Hour to an hour and a half.

MR. CLARKE: Hour to an hour and a half. She has to sit down, but we would like to address you about the propriety of what frequency or what approach to do, and we have to do that yet.

THE COURT: Okay. I would suggest then that we continue with the redirect examination and recross. And your indication to me, if I recollect correctly from last week, is that Dr. Cotton will reappear later in the case.

MR. CLARKE: That's possible that may not occur. Now, counsel for the Defense also indicated that perhaps there would be no objection to Mr. Sims making some of these calculations across the markers. That may or may not solve that. I don't know. But the answer is, Dr. Cotton will be available. Whether she's--there's a need to recall her or not--

THE COURT: I would like to conclude Dr. Cotton for all purposes tomorrow if not sooner.

MR. CLARKE: All right. One of the problems is, the Court did not allow Dr. Cotton to recalculate--not recalculate, but calculate the frequencies across even the Department of Justice numbers. So if that comes to pass, then obviously she will be returning, if the foundation has to be laid.

THE COURT: Okay. All right.

MR. NEUFELD: Just as to these numbers then, your Honor--I mean, I know Dr. Cotton said she had to be out of here by Wednesday afternoon. As you can tell, I'm finished with my cross-examination now. So that's not a problem. But I definitely want to leave with the jury during this visit of Dr. Cotton's a sense of just how common these frequencies are.

THE COURT: Well, let's see if we can do this though. If Dr. Cotton says that she can do this calculation in an hour to an hour and a half, let's see if we can't conclude the redirect, the recross, allow her the remainder of the day and the evening to do these calculations, come back tomorrow morning and see where we are. Let's see if we can do that.

MR. NEUFELD: That's certainly fine. Thank you, your Honor.

MR. CLARKE: Can I just have a quick moment, your Honor?

THE COURT: Sure.

(Discussion held off the record between the Deputy District Attorneys.)

THE COURT: But let's see if we can finish this afternoon with everything except those numbers.

MR. CLARKE: Your Honor, it may make more sense that--particularly in view of the fact that Dr. Cotton is not going to be allowed to testify now about the Department of Justice frequencies, that we will want to bring her back for that purpose. And therefore, can we take care of all of the frequency matter when there's more time to address it appropriately?

THE COURT: All right. Well, let's see how far we get today.

MR. CLARKE: All right.

THE COURT: All right. Let's have the jurors.

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: Thank you, ladies and gentlemen. Please be seated. The record should reflect that we have been rejoined by all the members of our jury panel. Dr. Cotton, would you resume the witness stand. And, Mr. Clarke, you may redirect.

MR. CLARKE: Thank you, your Honor. Good afternoon again, ladies and gentlemen.

THE JURY: Good afternoon.

REDIRECT EXAMINATION BY MR. CLARKE

MR. CLARKE: Dr. Cotton, with regard to these proficiency tests that you were asked questions about earlier today, can you estimate for us or otherwise tell us the number of proficiency tests that your laboratory has taken since 1989?

DR. COTTON: I made a count, assuming I counted correctly, since the beginning of 1990 till the end of 1993, comes to about 104, and there have been ongoing tests in 1994 and continuing into `95, but they're not reflected in the documentation I have with me. So I didn't include those.

MR. CLARKE: Now, is that just the number of different tests that the laboratory has taken, proficiency tests?

DR. COTTON: That's right.

MR. CLARKE: And I believe you said that was through 1993?

DR. COTTON: Yes.

MR. CLARKE: Is there any way you can estimate the number of tests, for instance, in 1994?

MR. NEUFELD: Objection. Hearsay and discovery.

THE COURT: Overruled. Excuse me. Sustained on the--as to speculation, asking to estimate.

MR. CLARKE: All right.

MR. CLARKE: With regard to these--and I'm sorry. What was the number again since 1989 through 1993?

DR. COTTON: I counted 104.

MR. CLARKE: How many different samples--do you have a count of the total number of different samples that those 100 plus tests included?

DR. COTTON: Yes, I do.

MR. CLARKE: How many is that?

DR. COTTON: 466.

MR. CLARKE: Of those 466 samples since 1989, that is proficiency test samples that have been tested, how many errors has the laboratory made?

DR. COTTON: There are no false positives and no incorrect exclusions in the remainder of those samples since 1989.

MR. CLARKE: Since 1989, has your laboratory made or have they typed any false positives in any test?

DR. COTTON: Well, I can only--I can only tell you what we're aware of and--

MR. NEUFELD: Objection. Objection. It's speculation at that point, your Honor.

THE COURT: Overruled.

DR. COTTON: Obviously--

THE COURT: She said, "Only that I'm aware of." That's not speculation. Proceed.

MR. NEUFELD: Your Honor, may I just ask for clarification? Is this proficiency testing? I just--

THE COURT: Proceed.

MR. CLARKE: I'm sorry. Could the witness be allowed to conclude her answer? I believe she was in mid sentence.

THE COURT: Yes, she was.

DR. COTTON: The only measure we have of a false positive or a false exclusion is on a proficiency test. I obviously can not tell you in a case because we--as was pointed out earlier, we don't know what the result is supposed to be. I can't tell you whether in the number of cases that we done--have done, whether there are any because although it's possible you would be able to pick it out, it's not a guarantee that you would be able to pick it out by any stretch. And, therefore, I can only tell you in reference to the proficiency tests, and I can't tell you any further than that.

MR. CLARKE: Perhaps I misspoke. Actually I was addressing myself only to proficiency tests and those tests that you've taken since 1989.

DR. COTTON: There are no false--additional false positives and there are no incorrect exclusions in the proficiency tests since 1989.

MR. CLARKE: Incidentally, as far as this area of proficiency testing, what role if any did your proficiency tests have to do with your accreditation by the American Society of Crime Laboratory Directors?

DR. COTTON: Like the TWGDAM guidelines, the ASCLAD lab requires that each analyst take two tests per year, and one of them must be from an approved--an ASCLAD approved proficiency test provider. And we must sign documentation agreeing with--that we will give those results back to a committee--back to ASCLAD--it's a committee within ASCLAD lab--for their review. So not only are they being reviewed by our laboratory, but they're being reviewed by ASCLAD.

MR. CLARKE: Was this or did these proficiency tests play any role in your accreditation process?

DR. COTTON: We--if we had not been doing the level of proficiency testing that we have, our lab would not have been accredited.

MR. CLARKE: And it was accredited; is that right?

DR. COTTON: Yes.

MR. CLARKE: Now, I'd like to change topics to--and do you recall a series of hypothetical questions asked you by Mr. Neufeld about various swatches taken from the Bundy crime scene?

DR. COTTON: Yes, I do.

MR. CLARKE: And in particular, do you recall being asked questions about the various blood drops starting from the drop closest to the victims' bodies, no. 47, through and including the remaining drops, 48, 49, 50, and then finally 52 out in the driveway area?

DR. COTTON: Yes.

MR. CLARKE: Do you recall his questioning you about the possibility that each and every one of those samples was cross-contaminated by contact with swatches taken at a different scene; mainly, the Rockingham home?

DR. COTTON: Yes, I do.

MR. CLARKE: First of all, how can DNA get from one swatch on to another swatch by contact?

DR. COTTON: If both swatches were wet and they were in immediate contact with each other presumably because they were wet, you could have some exchange of material. If they were dry, that would be harder and you might have to have sort of an excess of material on the swatch, such that some was basically sort of flaking off. But it would be harder if they were dry than if they were wet.

MR. CLARKE: Now, I believe you described during your cross-examination that that type of transfer from one swatch from one location, that is seized at one location, to another location seized from another location was scientifically possible; is that right?

DR. COTTON: Yes. I'm--there's--I can't say that it's impossible.

MR. CLARKE: Would it be the case--and first of all, you have already testified about various results from the Bundy crime scene; is that right?

DR. COTTON: Yes.

MR. CLARKE: That included this series of blood drops, items 47 through 52?

DR. COTTON: Yes.

MR. CLARKE: Except for item 51 I believe was not one of those particular samples, correct?

DR. COTTON: Yes.

MR. CLARKE: And you described, for instance, typing results from the shoeprint, which is item 56?

DR. COTTON: Yes.

MR. CLARKE: As well as the boot drop, item no. 78. Do you recall that?

DR. COTTON: Yes.

MR. CLARKE: Now, your Honor, with the Court's permission, I would like to use the Bundy results board at this time. And I believe that's People's exhibit 259.

(Brief pause.)

THE COURT: Deputy Smith, why don't you grab that other--I think we need it up just a bit. Great. Thank you.

MR. CLARKE: Now, Dr. Cotton, can you see those results without--we won't be going into the individual types and their results, but can you see basically each of those item numbers beginning with 47 from where you're seated?

DR. COTTON: No. I'd better step down.

MR. CLARKE: Well, let me just try it a different way.

DR. COTTON: Okay.

MR. CLARKE: Let's start with item no. 47, the first drop by the victims. And what I'm going to ask you is, for the hypothetical, this hypothetical possibility of a transfer occurring from one set of swatches seized at one location to these particular set of swatches, would it be correct that these individual items, first of all, would have to be collected; in other words, collected by some evidence collector at the Bundy crime scene? Let's start with item 47.

DR. COTTON: Yes.

MR. CLARKE: For that hypothetical to be true about this cross-contamination, would the DNA in that particular sample, again, the first drop by the victims, no. 47, have to degrade to the point that you could detect no DNA whatsoever even by PCR?

DR. COTTON: Yes.

MR. CLARKE: Would that item in terms of the swatch or swatches for each individual item then have to come into contact with these swatches from a totally different scene and a different item number?

DR. COTTON: Yes.

MR. CLARKE: And again, what type of contact would be needed for this to happen?

DR. COTTON: Very--very close contact.

MR. CLARKE: What do you mean by that?

DR. COTTON: Well, they basically have to be right on top--they would have to be touching.

MR. CLARKE: Physically touching?

DR. COTTON: Physically touching.

MR. CLARKE: Is touching enough or does something have to physically happen from one swatch to the other swatch?

DR. COTTON: Well, let's put it this way. Touching is the minimum.

MR. CLARKE: What actually has to transfer from one swatch to the next swatch for this hypothetical to actually be true?

DR. COTTON: Well, given that the swatches are bloodstains, white blood cells have to transfer--I mean, you wouldn't have just white, but you would have to have blood cells transferring off one swatch and on to the other.

MR. CLARKE: What would have to be the quantity and quality of these cells that have gone from one swatch to the other swatch so that you could only detect the material that transferred?

DR. COTTON: The material on the swatch from which the contamination was coming would have to be of sufficient quantity and quality to do the testing--to appear on the final test. So given that one now had completely degraded so you couldn't test it, you would have to have enough transfer from the other swatch, enough DNA of sufficient quality to be able to now see it on the test.

MR. CLARKE: And then ultimately--and you've described that final step. Ultimately, for this hypothetical to be true, you would then have to go through a typing process and only detect the types from the swatches that supposedly cross-contaminated, for instance, item no. 47?

DR. COTTON: Yes.

MR. CLARKE: Now, would that same occurrence for this hypothetical to be true have to have happened to item no. 48, the next Bundy walkway drop?

DR. COTTON: Yes.

MR. CLARKE: As well as 49, the next drop?

DR. COTTON: Yes.

MR. CLARKE: 50, the next drop?

DR. COTTON: Yes.

MR. CLARKE: And 52, the next drop?

DR. COTTON: Yes.

MR. CLARKE: Now, let's talk in a little bit more detail about item no. 52. What do we know about the quantity and quality in item no. 52 in comparison to 47, 48, 49 and 50, the earlier drops on the walkway?

DR. COTTON: We know that the quality of the DNA in 52 is sufficiently good to give an RFLP banding pattern. That is, some of the DNA is good enough to do that. And it--and you can--you can see on the mini gel that it's much better than the 49 and 50 which were also run on mini gels. And then as far as 47 and 48, that--that was not good enough either. So basically 52 is in much better shape than 47, 48, 49 and 50.

MR. CLARKE: Does that mean the DNA transferred by this hypothetical from another swatch at another scene to the material in item no. 52 would have to be some amount in quality of DNA in excess of the remaining drops?

DR. COTTON: Yes.

MR. CLARKE: Is there any way to describe that difference in how much and what the quality of the DNA would have to be?

DR. COTTON: Well, in terms of quality, it would--there is a sub--I'm--I have a very good recollection of what 49 and 50 look like for some reason. So I'll just use those as an example. The difference in the level of degradation between 49 and--49 and 50 look about the same, and they are very different from 52. In terms of quantity of DNA in those samples, I would have to go back into the case folder and look at the amounts and give you--to give you a good estimate.

MR. CLARKE: Okay. In any event, it would be greater than the remaining samples, 47 through 50, that would have to be transferred in the hypothetical? I'm referring to the quality and quantity of DNA.

DR. COTTON: In terms of the quantity, are you saying is that different for 52 than the others?

MR. CLARKE: Correct. What you are able to actually detect.

DR. COTTON: In terms of what you can detect, yes. In terms of actual mass amount, it may not be any different.

MR. CLARKE: In other words, the actual size of what was on the swatch?

DR. COTTON: The actual weight, that is of the DNA that you have, which is measured in terms of nanograms, it could be a similar amount in 49 and 50, for example. It's just that it's very degraded and the other is not.

MR. CLARKE: Okay. Now I would like to turn your attention to item no. 56, the shoeprint that's also listed on this particular Bundy crime scene results board. As far as that particular item is concerned, is there any indication whatsoever of cross-contamination similar to that on 47, 48, 49, 50 and 52 in terms of DNA type?

DR. COTTON: No.

MR. CLARKE: Why? What's the difference?

DR. COTTON: Well, the other--47, 48, 49 and 50 are consistent in type with Mr. Simpson. 56 is consistent in type with Nicole Brown. So if all of those samples were contaminated, they couldn't have all been contaminated from the same source.

MR. CLARKE: Because the types are different; is that right?

DR. COTTON: Yes.

MR. CLARKE: And in fact, at least one of them--let's take the DQ-Alpha alleles. Is it true that there is one DQ-Alpha type that's not even present in item no. 56, the shoeprint?

DR. COTTON: You mean that is present in the other samples--

MR. CLARKE: Yes.

DR. COTTON: Yes.

MR. CLARKE: And what's that?

DR. COTTON: It's the 1.2 allele.

MR. CLARKE: Now, with regard to this hypothetical--and first of all--well, let me rephrase that question. With regard to this hypothetical, do these unstained controls play any role in determining whether or not this type of transfer could have occurred?

DR. COTTON: Well, they would if they were out and about at the same time that you're postulating the other contamination occurred because they don't have any DNA on them, the ones that we tested.

MR. CLARKE: All right. Let me put it in a form--I'm sorry. I interrupted you.

DR. COTTON: I'm finished.

MR. CLARKE: Let me put it in the form of a hypothetical to you. If those unstained controls--and let's assume there are unstained controls for these various items of evidence, 47, et cetera--and that those were processed in the same manner as the bloodstains, would those unstained controls in terms of if they detected no DNA, typeable DNA, provide you any information about whether or not this hypothetical cross-contamination transfer actually occurred?

MR. NEUFELD: Objection.

THE COURT: Basis?

MR. NEUFELD: Well, part of the objection is the "et cetera." I mean, maybe he should spell out which samples he's referring to.

THE COURT: Sustained.

MR. CLARKE: All right. Instead of that et cetera, 47, 48, 49, 50 and 52. Do the unstained controls provide you any further information if what I described to you is the case?

MR. NEUFELD: Objection. Assumes facts not in evidence.

THE COURT: Overruled.

DR. COTTON: If the unstained controls were processed in the same manner at the same time as the actual samples, then you would have to postulate that the contamination only occurred on the actual samples and didn't occur on the unstained controls. So it would be a very specific contamination, not just sort of affecting everything.

MR. CLARKE: And by "processed at the same time," do you mean collected, allowed to dry, repackaged, et cetera?

DR. COTTON: That's--yes, I do.

MR. CLARKE: That's the second time I've used the word "et cetera." But through those stages that I just described including packaging?

DR. COTTON: Yes.

MR. CLARKE: Do these unstained controls in this case represent or are they an additional safeguard as to the accuracy of DNA results in this case?

MR. NEUFELD: Objection. No foundation for this witness.

THE COURT: Overruled.

DR. COTTON: The unstained controls tell you one thing. That is, that there was no DNA on a spot adjacent to where the stain was lifted from. I don't think they say anything beyond that.

MR. CLARKE: Are these unstained controls, are they to show the presence or absence of bacteria? Is that what you use them for, for instance?

DR. COTTON: No. We don't have--I suppose you could test for the presence of bacteria on those unstained controls. We don't--

MR. NEUFELD: Objection. Move to strike, "suppose," because she's speculating at this point.

THE COURT: Overruled.

DR. COTTON: We don't have the capability in our lab of doing that.

MR. CLARKE: Incidentally, in your laboratory, in the controls that you tested, that included item no. 49, that is an actual unstained substrate control for one of the Bundy walk stains, no. 49?

MR. NEUFELD: Objection. Inconsistent with the testimony.

THE COURT: Overruled.

DR. COTTON: Can I check my book?

MR. CLARKE: Sure. Please do.

(The witness complies.)

THE COURT: There's no designation of 49-C though as I recollect.

MR. CLARKE: I'm sorry?

THE COURT: There's no designation of 49-C.

DR. COTTON: We received a sample, was labeled item no. 49. It was sent to us with other samples that were indicated that they were unstained controls. It didn't have "C" or control written after it.

MR. CLARKE: And did you test that particular item for its DNA content?

DR. COTTON: Yes, we did.

MR. NEUFELD: Objection, your Honor. Misstates the evidence. Can I have a sidebar?

THE COURT: Overruled. No.

MR. CLARKE: With what result?

DR. COTTON: Uh, it didn't produce any type.

MR. CLARKE: And when you say "No DNA type," what do you mean?

DR. COTTON: We got no detectable typeable DNA from that sample.

MR. CLARKE: Now, you also tested other unstained controls; is that right?

DR. COTTON: Yes.

MR. CLARKE: What Los Angeles Police Department item numbers were those?

DR. COTTON: Item 7 control, item 12 control, item 49, doesn't say control after it, item 56, doesn't say control after it.

MR. NEUFELD: Move to strike the earlier testimony as to 49, a control.

THE COURT: Overruled.

MR. CLARKE: With what results for the other three? You're already described 49.

DR. COTTON: No detectable, no typeable, DNA was present.

MR. CLARKE: Are you aware that any other unstained controls were tested by any other laboratories in this case?

MR. NEUFELD: Objection. Hearsay.

THE COURT: Sustained.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Cotton, I would like to offer you a hypothetical. That if in fact, with regard to these particular items at the crime scene, that is the Bundy crime scene--actually, let me rephrase that.

MR. CLARKE: May I have just a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Cotton, I would like you to assume that with respect to this particular results board, the Bundy results board, that with regard to each of the items, except for purposes of this question, 84-A and 84-B, that there was an unstained control seized for each of those particular items. All right?

DR. COTTON: Okay.

MR. CLARKE: That the results of those unstained controls showed no detectable DNA present. All right?

DR. COTTON: Yes.

MR. CLARKE: Does that information assist you in reaching any opinion about whether or not the cross-contamination possibility posed by Defense counsel occurred in this case?

MR. NEUFELD: Objection. Improper hypothetical. I move to strike.

THE COURT: Sustained.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Now, I would like to shift your attention if I could, Dr. Cotton, to questions posed to you about the possibility of a blood tube, that is a tube containing known DNA, could have been spilled or placed or inadvertently mixed with the same swatches, that is from items 47 through 52, the Bundy walkway stains. Do you recall those questions?

DR. COTTON: Yes.

MR. CLARKE: For that to have occurred and for you to have obtained the types that you described, again would the DNA in these various walkway stains have to degrade so that you could detect no DNA? Actually let me rephrase that. Be able to detect no DNA types.

DR. COTTON: Yes.

MR. CLARKE: Would it also be correct for that hypothetical to be true that you would then obtain only the DNA types from this spilled or otherwise contaminated tube blood?

DR. COTTON: Yes.

MR. CLARKE: If this occurred, that is, these spills or placement from a tube, would you expect these particular swatches from 47 through 52 to have the same quantity--let me rephrase that--to have the same quality DNA?

DR. COTTON: There would be a reasonable expectation that if that occurred, they would have close to the same quality of DNA.

MR. CLARKE: Why?

DR. COTTON: Well, I could think of two scenarios. One is, the blood gets on there, it dries, and once it's dried, nothing much happens to it in terms of degradation, in which case you would expect to have the same quality of DNA. The only way I can postulate that that wouldn't be the case would be, the blood gets on the swatches and it doesn't dry very rapidly, and, therefore, something that's already on the swatch then differentially degrades the DNA on one swatch as compared to another; and in that case, you wouldn't obviously expect that they would all be the same.

MR. CLARKE: Did you see, in terms of these stains, the same quality of DNA, this is again the walkway stains, 47 through 52, or did you see differences in quality of DNA?

MR. NEUFELD: Objection as to the word "see" with respect to the quality of DNA.

THE COURT: Sustained. Rephrase the question.

MR. CLARKE: Did you detect or did you determine if the DNA quality from these swatches, 47 through 52, was the same or was it different?

DR. COTTON: It's different.

MR. CLARKE: How? What were the differences?

DR. COTTON: You can see the differences on the mini gel in terms of how degraded the DNA is in those different samples.

MR. CLARKE: Was there a difference--and let's--you know, if this would help you, let's take 47 and 48. Were there differences between those two, or if there's a better way of describing this difference, please tell us how.

DR. COTTON: If you want me to be more precise about it, you'll need to let me get out the pictures so that I can look at them.

MR. CLARKE: All right. If you would.

(The witness complies.)

DR. COTTON: Okay. We'll give this a try.

MR. CLARKE: Could you start with item 47 and tell us what would be the easiest way to make this comparison between that first walkway stain by the victims and the remainder?

DR. COTTON: Well, I'll go down item by item and sort of try to give you the level of degradation that we can see on the mini gel versus sort of like not very much, a moderate amount or a lot.

MR. CLARKE: Okay.

DR. COTTON: You have to keep in mind that this mini gel isn't assessing human DNA, it's assessing total DNA, and, therefore, there's--you know, I can only tell you what I can see. I can't tell you anything about whether what I'm--based on this result alone, as to what I'm seeing is human or not. Okay. Item 47--and again, I'm taking a minute because I have to translate numbers here and also count. Item 47 is very degraded. Item--item 49 and 50 are very degraded. Item 56--

MR. NEUFELD: Objection. That's nonresponsive. It's only limited to the drops I believe.

DR. COTTON: What's the--am I just--

THE COURT: Overruled. I'm sorry. Sustained. Correct. It's not one of the blood drops.

MR. CLARKE: Actually what I am going to ask permission to do, your Honor, is to display to the jury just briefly the photographs of each of these items and ask the witness to describe what they mean as far as this opinion.

THE COURT: You mean the photographs of the actual spots at the crime scene?

MR. CLARKE: No. Photographs of the actual test results from determining how much DNA is present.

THE COURT: All right.

MR. CLARKE: Can we do that, first of all, Dr. Cotton?

DR. COTTON: We can if you'll give me just a second to pull out the--what I have to do is give you the originals and then pull out the sheets from my copies that will tell me what samples in what lane.

MR. CLARKE: All right.

MR. NEUFELD: Your Honor, an additional objection based on her testimony that a lot of it isn't even human DNA--

MR. CLARKE: Well, excuse me, your Honor. I believe--

THE COURT: Speaking objection.

MR. NEUFELD: Sorry. May we have a--may we have a sidebar then, your Honor?

THE COURT: No. Proceed.

(Discussion held off the record between the Deputy District Attorney and the witness.)

THE COURT: All right. Do you want to show those to Mr. Neufeld as well?

MR. CLARKE: Yes.

(Brief pause.)

MR. CLARKE: First of all, Dr. Cotton, do you have copies of these photographs?

DR. COTTON: With me?

MR. CLARKE: Yes.

DR. COTTON: No.

MR. CLARKE: All right. Could we, your Honor, for purposes of this utilize the originals and obtain copies and at some point substitute them? These are I believe--

MR. CLARKE: Are these photographs from your original raw notes?

DR. COTTON: Yes.

THE COURT: All right. Let's go with the originals today.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. CLARKE: All right. Dr. Cotton, you have given me two pages. Which one would show--that is, which page and which photograph would demonstrate item no. 47, the first drop?

DR. COTTON: This one (Indicating).

MR. CLARKE: The lower photo on a page labeled at the top August 1, `94 or 8-1-94?

DR. COTTON: Yes.

MR. CLARKE: I believe that would be 263, your Honor, referring to the photograph?

THE COURT: All right. People's 263.

(Peo's 263 for id = photograph)

MR. CLARKE: Dr. Cotton, showing you a photograph that's now on the screen that will be People's exhibit 263, what's that a photograph of?

DR. COTTON: It's a photograph of the small mini gel that was used to look at the DNA that was extracted from the samples that were loaded on there.

MR. CLARKE: If I give you the pointing arrow and give you the podium, can you describe for the jury, please, what particular lane we're looking at? And then I'll have you describe what this process actually shows.

DR. COTTON: Sure.

MR. CLARKE: First of all, Dr. Cotton, with regard to this photograph, what would you call this photograph? What's it of?

DR. COTTON: It's a photograph of the mini gel using the DNA samples before they were digested with the restriction enzyme.

MR. CLARKE: And what's this mini gel process? What do you use it for?

DR. COTTON: For looking at how degraded the sample DNA is.

MR. CLARKE: Do you ultimately use photography to be able to later review those results?

DR. COTTON: Yes.

MR. CLARKE: Now, is there a way that you can show us--and let's start with--I'm sorry--item no. 47, the first walkway drop. Can you indicate where you would look for results on this photograph?

DR. COTTON: Are we on here? The top of the gel is up here (Indicating) And you see--see--the best place you can--see right here, that little inden--that's an indentation where the sample is loaded and so is this and so is this. And you can't see them quite as well over here, but they go all across the top. So the person who did the work recorded what sample she loaded in this lane and what sample she loaded in this one and this one and so on. And so based on looking at the notes, when you're asking me about a particular item, looking at the notes and seeing in which lane that item was put into the mini gel.

MR. CLARKE: Now, incidentally, is this one of these x-rays or autorads that you had shown to the jury last week?

DR. COTTON: No. This is actually a photograph of this small gel, which is about two inches by three inches, and the gel is sort of opaque and you can see the edge of it right here (Indicating), this black--this was a full-size picture, that is, it had a lot of extra nothing out here, black, because this gel is laid on a light box, but instead of the white light that you see on the light boxes that have been used so far, it's an ultraviolet box. And because the DNA has been stained with a dye, if you were to look at this in color, the places where you see DNA sort of appear a pinkish orange and the gel has this sort of opaque look and then to--before it's put in the case folder, the gel is just trimmed out and the rest of the picture that doesn't contain a gel or anything else is just thrown away.

MR. CLARKE: How do you read this particular photograph to determine approximately how much and what quality of DNA is present in a sample?

DR. COTTON: The photograph is--you can look at it and think about it just in exactly the same way that you think about the DNA on the autoradiograph. The DNA was put into a sample well up here and it moved down in this direction through the gel (Indicating), and these are three controls that are on the gel. This is the same lambda that's loaded on the large gel that we produced the x-ray film from. So this is a hundred nanograms of lambda and this is 50 and this is 25, and it has the same bands that you would see. And the reason this is on there is that we know the size of this top band is 23,000 base pairs; and what we're looking for is if DNA is in good condition, it will be up here because the pieces will be very, very large. As the DNA is more degraded, then you'll begin to see DNA down here (Indicating).

MR. CLARKE: Why is that?

DR. COTTON: Because as it gets more degraded, the pieces are randomly broken up and all of the pieces get smaller and smaller and smaller. So you can see that the DNA in these lanes--and what you're looking at now is this--this--if you were looking at it on a light box, it would be coloration. Here it just appears white because this is a black and white picture. So you're looking at the distribution of the stain DNA from the top to the bottom of the gel. And if you see it all along, then you have some degradation here. To give you an example, this sample right here, whatever it happens to be (Indicating), does not appear to be very degraded at all. It looks very, very good.

MR. CLARKE: Let's take the three, and I believe you described them all as lambda markers, the far right-hand three lanes that have a series of bands in each one?

DR. COTTON: Yes.

MR. CLARKE: Those are controls in this test?

DR. COTTON: They're controls just to say your gel ran as it should and to give us a sense of--of amounts of DNA, although this is not a real quantitative control. Some other laboratories use a cer--a known amount of human DNA in these positions instead of this lambda, and that actually works a little more nicely in terms of quantitation.

MR. CLARKE: Let's go left to right if we can and let's just go to the first lane on the first left. Can you show us where that is?

DR. COTTON: Right here (Indicating).

MR. CLARKE: Now, what's in that lane in this test?

DR. COTTON: Uh, item 78.

MR. CLARKE: And that would be the boot drop; is that right?

DR. COTTON: Right. Obviously it's the DNA from item 78.

MR. CLARKE: What kind of condition was that DNA in?

DR. COTTON: Well, it looks pretty good. There's not a lot of it, but I see DNA here and I see a little bit of a smear coming down (Indicating), but it looks like it would be good enough to load on an RFLP gel.

MR. CLARKE: In other words, from this result, in terms of the relative quality of the DNA, it appeared that an RFLP test might produce results?

DR. COTTON: Yes.

MR. CLARKE: And was that decision in fact made as to the boot drop?

DR. COTTON: Yes.

MR. CLARKE: And that produced the RFLP results that you described last week; is that right?

DR. COTTON: That's right.

MR. CLARKE: What's in the next lane?

DR. COTTON: The next lane over is item 56.

MR. CLARKE: That's the shoeprint?

DR. COTTON: Yes.

MR. CLARKE: And I believe last week, you described that from this evaluation or mini gel or yield gel--first of all, are those all terms used--

DR. COTTON: Yes.

MR. CLARKE: --to describe this photograph and these results?

DR. COTTON: Yes.

MR. CLARKE: You described that it appeared that that would be enough DNA to be able to obtain a DN--I'm sorry--an RFLP result.

DR. COTTON: Yes. It certainly looked like it because you see there's a lot right here (Indicating).

MR. CLARKE: And that turned out not to be true because of the condition of the DNA, that is what type of DNA itself it was; is that right?

DR. COTTON: It turned out not to be true, and we're now making a judgment call that it wasn't true because the DNA that we're seeing is not human. If this were human DNA, we would have seen a very nice RFLP pattern.

MR. CLARKE: Now, going to the next lane, can you point where that is?

DR. COTTON: Yes. Right here (Indicating).

MR. CLARKE: What was in that lane?

DR. COTTON: This is item 52.

MR. CLARKE: Item 52 was the last blood drop out on the driveway area at Bundy?

DR. COTTON: Yes.

MR. CLARKE: What did this result tell you about that blood drop?

DR. COTTON: There's some DNA in this high molecular weight area. But you can see if you follow this down that there is some DNA that's all the way down in here (Indicating). So this sample is degraded. And if you only had this to look at--I mean now we know that it did give an RFLP pattern, but at the time that we looked at this, the assessment was it might, it might not. So we loaded it, but we didn't know if it would give us a result.

MR. CLARKE: You have described earlier, and I believe as to three of the drops in this trail, that the DNA was very degraded when I asked you on the witness stand?

DR. COTTON: Yes.

MR. CLARKE: How would you characterize the result or the condition rather of the DNA with regard to 52, that blood drop in the driveway?

DR. COTTON: Uh, sort of a medium amount of degradation.

MR. CLARKE: Okay. What's the next lane over to the right?

DR. COTTON: Next lane is item 7 from Rockingham.

MR. CLARKE: In the Rockingham driveway drop?

DR. COTTON: Yes.

MR. CLARKE: One of them?

DR. COTTON: Yes.

MR. CLARKE: Okay. And since we're going to stick to the Bundy scene for the moment, what about the next lane over?

DR. COTTON: The next lane over is 47.

MR. CLARKE: Now, tell us about 47 and what you see there.

DR. COTTON: What you see here is that there is no DNA that's visible in this upper area (Indicating). So from that, you would assume that you are not going to get an RFLP pattern from this particular sample. You can see some DNA down here. See this smear that starts about--little more than halfway down and goes all to the--all the way to the bottom (Indicating). If that's human DNA, that's probably going to be good enough to give a PCR result.

MR. CLARKE: And that's in fact the technology you use to type that particular item?

DR. COTTON: Yes.

MR. CLARKE: And for the moment, what is in the next lane?

DR. COTTON: The next lane is item 12.

MR. CLARKE: And that was the Rockingham foyer?

DR. COTTON: Yes.

MR. CLARKE: And what result in terms of the presence of DNA can you determine from this particular test?

DR. COTTON: You can see a lot of DNA right at the top, a little bit of degradation in here (Indicating), but not a lot. And assuming that this is human DNA, you would expect that it would give you a very nice RFLP pattern.

MR. CLARKE: And did it do so when you conducted your RFLP typing?

DR. COTTON: Yes, it did.

MR. CLARKE: Now, incidentally, before we move on, Dr. Cotton, this particular test, these--that ultimately you received the photographs from, this yield gel--I believe you used that term?

DR. COTTON: Yes.

MR. CLARKE: That's done after you actually extract the DNA in your laboratory?

DR. COTTON: Yes.

MR. CLARKE: And these were all extractions that your laboratory did of DNA from the actual swatches sent to you from Los Angeles?

DR. COTTON: Yes.

MR. CLARKE: Okay. Now, could we move on to--what would be the next photograph, to go to the same page that's currently--

DR. COTTON: No. The other page.

MR. CLARKE: The other page? All right.

MR. CLARKE: And, your Honor, could this photograph be marked as People's exhibit 264?

THE COURT: 264.

(Peo's 264 for id = photograph)

MR. CLARKE: All right. Dr. Cotton, do you have that second page or do I?

DR. COTTON: I do.

MR. CLARKE: Okay. Thank you.

MR. CLARKE: And, your Honor, may this photograph also be placed on the elmo?

THE COURT: Yes. Have you shown that to Mr. Neufeld?

MR. CLARKE: Yes.

MR. CLARKE: Now, Dr. Cotton, is this another yield gel?

DR. COTTON: Yes.

MR. CLARKE: And does it show results as to any of these samples taken at the Bundy crime scene?

DR. COTTON: This one has the samples from 49 and 50.

MR. CLARKE: Could you point those out to us?

DR. COTTON: These are the same controls I just mentioned. 49 was in this lane and 50 was in this lane (Indicating).

MR. CLARKE: Let's start--and again, first of all, were these samples run in your laboratory on a yield gel after your laboratory extracted DNA from these original swatches?

DR. COTTON: Yes.

MR. CLARKE: With what results? Could you show them and describe them, please?

DR. COTTON: Both these samples are degraded to about the same extent. You have to look way down here at the bottom, and you see a smear of DNA here and you see a smear of DNA here and you see nothing up in this range here (Indicating). These two samples clearly are not good enough for RFLP testing.

MR. CLARKE: And were they then tested using the PCR method?

DR. COTTON: Yes.

MR. CLARKE: With the results that you described last week?

DR. COTTON: Yes.

MR. CLARKE: Now, amongst these--first of all, have we now shown each of 47 through 50 and 52, each of the blood drops?

DR. COTTON: Yes.

MR. CLARKE: All right. Then perhaps, your Honor, we can remove or ask the witness to retake the stand and I'll ask her further questions.

THE COURT: All right.

(The witness complies.)

MR. CLARKE: Now, having shown these five samples, 47, 48, 49, 50 and 52, were you or can you summarize any differences in their relative amounts of DNA as revealed by these yield gels?

MR. NEUFELD: Your Honor, objection. Asked and answered. That was the question immediately before this.

THE COURT: Overruled.

DR. COTTON: You can get a general idea from the gels that the amounts of DNA are pretty much in the same ballpark with the exception of 56. But again, because this isn't a measure of human DNA, this isn't a very good place to try to get quantitation as to a precise amount.

MR. CLARKE: Okay. Let's turn to human DNA then with regard to these samples. What can you describe about that?

DR. COTTON: That determination was made on a slot blot and that's another page of notes.

MR. CLARKE: Okay. Is there a way that you can describe those results for us from these various items, 47 through 50 and 52?

DR. COTTON: From the slot blot?

MR. CLARKE: Yes.

DR. COTTON: Sure.

MR. CLARKE: Okay. Can we address these in order? That might be easier to follow. For instance, item no. 47?

DR. COTTON: It's easier for you.

MR. CLARKE: Would it be easier for you in a different order?

DR. COTTON: Yeah.

MR. CLARKE: Okay. Let's start with the one that's easiest to get to then.

DR. COTTON: Uh--

THE COURT: Why don't you pull the microphone closer.

DR. COTTON: Oh, sorry. This quantitation is done from the PCR extraction, and the various amounts of DNA--what kind of answer are you looking for? Do you want nanograms or do you want like thoughts and not so much--

MR. CLARKE: What would be the easiest way to describe any relative differences between these five drops?

DR. COTTON: Well, I can tell you which ones had the most, which had a middle amount and which had nothing that we could detect.

MR. CLARKE: All right. Why don't you do that.

DR. COTTON: Okay. The samples that had the most DNA were 50 and item 52. The samples that had moderate amounts were 49 and 12, which I know wasn't--that's not on the--

MR. CLARKE: 12 was from the Rockingham residence, right?

DR. COTTON: Right.

MR. CLARKE: Okay.

DR. COTTON: And then the samples that had no detectable DNA on here, which doesn't mean they don't have any, but it just means we're not detecting it, would be 56--

MR. NEUFELD: Objection as to 56.

THE COURT: Sustained.

DR. COTTON: Oh, okay.

MR. CLARKE: I believe you described 49, 50 and 52 thus far. Can you describe for us 47 and 48?

DR. COTTON: Yes. 47 had no detectable, and for item 48, I think I have to go to another--I think I have to go to another film. Where can I find that? I have to go--I think I have to go to another film.

MR. CLARKE: All right. Is that something that you can retrieve from your folder?

DR. COTTON: I can, but I have to go back and figure out what sample number of mine it is.

MR. CLARKE: You're looking for item no. 48; is that right?

DR. COTTON: Right.

MR. CLARKE: Would that be your item 12?

DR. COTTON: Yes. And 12 also had no detectable DNA.

MR. CLARKE: I'm sorry. Was that--when you say 12, what LAPD item--

DR. COTTON: That's my item 12, your no. 48.

MR. CLARKE: You described Los Angeles Police Department item no. 12, the Rockingham foyer, as having a moderate amount of DNA; is that right?

DR. COTTON: In my scenario, I think it was a moderate amount. You're right.

MR. CLARKE: Before we move on to a different area, are these differences that you've described amongst 47 through 52 consistent or inconsistent with cross-crontom--I'm sorry--cross-contamination transfer of DNA as posed by Mr. Neufeld in his hypothetical?

MR. NEUFELD: Objection. No foundation. It's pure speculation at this point.

THE COURT: Sustained.

MR. CLARKE: Does the relative amounts--well, let me rephrase that. Do these results of the relative amounts of human DNA differ among these samples along the walkway drops?

DR. COTTON: Yes.

MR. CLARKE: Does that tell you anything or does that lead you to any opinions or conclusions about whether or not that DNA was transferred from other evidence items as opposed to being DNA collected in the locations as described?

MR. NEUFELD: Objection again. No foundation, pure speculation.

THE COURT: Rephrase the question.

MR. CLARKE: Can I have just a moment?

THE COURT: Sure.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Cotton, based on these differing levels of DNA in these various items, does that lead you to any opinion about whether or not the DNA detected in your testing is from material collected at a crime scene versus material transferred from stains during evidence processing?

MR. NEUFELD: Objection. No foundation. Purely speculation.

THE COURT: Overruled.

DR. COTTON: It looks to me like--if it was a transfer, it would have had to been subsequently affected by the swatch it was transferred to. Otherwise, you have to--you have to postulate that it was--if it was a transfer, it wasn't from the same thing, it wasn't all from the same tube of blood or all from the same swatch because they're all different.

MR. NEUFELD: Move to strike, your Honor, that answer.

THE COURT: Overruled.

MR. CLARKE: Now, I'm going to shift topics, Dr. Cotton, if I could. You were asked a number of questions about packaging evidence items. Do you recall that?

THE COURT: And I sustained most of the objections to those questions.

MR. CLARKE: All right.

DR. COTTON: Vaguely.

MR. CLARKE: I'm not sure if I want to ask the next question or not.

THE COURT: Let your conscience be your guide.

MR. CLARKE: Let's turn to plastic bags. Do plastic bags play any role in preventing cross-contamination?

DR. COTTON: Of course they would.

MR. CLARKE: How?

DR. COTTON: You have one sample in a plastic bag and you have another sample in another plastic bag, it would be hard to get material from one sample onto the next sample.

MR. CLARKE: When you discussed--and you were asked a few questions just this morning--may have been this afternoon, but I think it was this morning--about DNA, when you're talking about a bloodstain, is looking at or actually detects DNA that's contained in white blood cells; is that right?

DR. COTTON: Yes.

MR. CLARKE: DNA is not contained in red blood cells?

DR. COTTON: That's correct.

MR. CLARKE: You were also asked about some conventional serology techniques that type proteins such as--and I believe the slide actually had EAP on it; is that right?

DR. COTTON: Yes.

MR. CLARKE: Where does that protein obtain from in a bloodstain? Is it the white blood cells or something different?

DR. COTTON: Uh, for EAP, it's red--I believe it's red blood cells.

MR. CLARKE: Now, let's take--so it's different. In other words--

DR. COTTON: It's a different cell type.

MR. CLARKE: Red blood cells versus white blood cells for DNA; is that right?

DR. COTTON: Yes.

MR. CLARKE: In a bloodstain--and let's just take a bloodstain left at a crime scene--do the red blood cells go to some different location than the white blood cells or are they mixed?

DR. COTTON: They're all mixed.

MR. CLARKE: In other words, are they all floating around until a piece of blood is deposited on a surface?

DR. COTTON: Yes.

MR. CLARKE: What happens to the cells at that point, once a bloodstain is--I'm sorry--a blood drop is left on a surface of any kind?

DR. COTTON: I don't--I don't know how to answer that question.

MR. CLARKE: Well, let me focus it in a little bit if I can. Is it the case that those cells, white versus red, go to different locations in the blood stain or do they stay mixed?

DR. COTTON: The blood is a mixture of cells and proteins and other things. I think for most practical purposes, you can think of it as a homogenous mixture, so that when the blood is deposited, it would still stay a mixture. I mean cells are very tiny. You know, they're just going to be distributed in the bloodstain, white and red together.

MR. CLARKE: Now, I'm going to shift your attention again to just briefly about evidence that you received from the Los Angeles Police Department. Did you receive any extracted DNA from the LAPD?

DR. COTTON: No.

MR. CLARKE: You received only evidence items themselves in the form of swatches, bloodstain swatches or unstained controls as well as known samples; is that right?

DR. COTTON: From LAPD, yes.

MR. CLARKE: Where did you get any extracted DNA from?

DR. COTTON: California Department of Justice lab.

MR. CLARKE: As far as all of the Los Angeles Police Department evidence items, were all of the extractions done in your laboratory that were received by your laboratory, the evidence items?

DR. COTTON: Yes.

MR. CLARKE: Now, I would like to turn your attention if I could to a particular control that was described earlier today in the course of your PCR testing wherein there were some detectable DNA types. Do you recall that?

DR. COTTON: Yes, I do.

MR. CLARKE: First of all, that control--well, what kind of control was it?

DR. COTTON: It was a reagent blank control.

MR. CLARKE: And that's one of the controls you used to ensure that the test worked probably in a PCR test, right?

DR. COTTON: Yes.

MR. CLARKE: Can you tell us what evidence item number or numbers that particular control was a part of that same test?

DR. COTTON: Yes. And I may have made an error this morning. Umm--

(Discussion held off the record between the Deputy District Attorneys.)

DR. COTTON: That reagent blank control was started with--shall I just read the list?

MR. CLARKE: Well, first of all, what item--okay. How many--yes, if you would. That's probably the best way.

DR. COTTON: Item 78, item 56, item 52, item 7, item 47, item 12. That control was started with those items. It was processed through with those items, and two of those items were also--two of those items didn't give any amplified product and were concentrated. After the concentration, one of them gave amplified product and the reagent blank gave two faint dots and the sample that was concentrated and then gave amplified product was item 56. And this morning, I think I was saying it was item 7, and that is not correct.

MR. CLARKE: Now, these two faint dots that you've just described, did their existence affect the typing results of the items other than item no. 56?

DR. COTTON: In our judgment, they did not affect the typing results because--okay. Think of--you do the extraction and you start the control. You bring it along and you type the samples and you type the control. For those samples that typed at that point, the control did not show any faint dots. And, therefore, we interpreted those samples. So that was a judgment call on our part. Two of those samples were then--going forward now, two of those samples were then concentrated and one of them gave a type and the control gave two faint dots. They--so it isn't that you have a whole type and the control, but you do have two faint dots. We made a judgment to report those results because the dots in the reagent blank were faint. Now, whether we type that sample again at the point before it was concentrated--that is, when I say the sample, I'm now referring to item 56--is something I'd have to look up because I was getting confused this morning.

MR. CLARKE: Okay. With regard to the earlier samples, that control showed no reactions whatsoever with DNA types; is that right?

DR. COTTON: At the first time that it was run, the controls showed no reaction. It did not show any reaction until it was put through the microconcentrator.

MR. CLARKE: Okay. Let's talk about why in your view is it appropriate to type those, that is to report the results from all of those items that were a part of that control when that control showed some faint DNA detected when you concentrated it.

DR. COTTON: Let's take the worse scenario and assume that the contamination was in that control from the beginning and also in the sample from the beginning. If that contamination is so small as to not produce a typeable result of any kind, whether or not it's there, it can't have affected the results.

MR. CLARKE: All right. As far as the later typing of item no. 56, why is it appropriate to report the results when it in fact showed that small or faint detectable level of DNA?

DR. COTTON: That's the question to give you the best answer. That's what I was confused on, whether or not we typed that sample again, and it might take me a minute to find that in the notes.

MR. CLARKE: All right. Do you think it would take long or would you prefer to do it when you have more time?

DR. COTTON: Uh, I'd actually rather do it when I had more time if you gave me a choice.

MR. CLARKE: With regard to the remainder of your tests, was there any DNA detected in any of the other controls?

DR. COTTON: No, there wasn't.

MR. CLARKE: Well--

DR. COTTON: In the positive controls, there was. But in the negative controls, there was no DNA depicted in any other negative control or any other reagent blank control run alongside any other sample that we did.

MR. CLARKE: In other words, the remainder of the negative control showed nothing as far as controls not expected to show DNA?

DR. COTTON: That's right.

MR. CLARKE: Incidentally. You were shown a portion of your laboratory protocol today; is that right?

DR. COTTON: Yes.

MR. CLARKE: And I believe you were asked about a specific page that dealt with controls and decisions that are to be made based on, for instance, a negative control failing?

DR. COTTON: Yes.

MR. CLARKE: What is a failed control or control that failed? What does that mean?

DR. COTTON: It's relatively vague. I mean, it's in the standard operating procedure, but I have to admit that that's a vague--basically--if you have any detectable DNA, you could say the control--I don't like this word "The control failed." If you have detectable DNA on that control, the control told you what you wanted it to tell you. It told you you might have a problem. It also may be telling you that you shouldn't interpret the results, that you should call them inconclusive, that you should do it again or you should think carefully before you give an interpretation.

MR. CLARKE: As far as that control--and I believe you had started to describe earlier today about discretion in the laboratory; is that right?

DR. COTTON: Yes.

MR. CLARKE: On that particular page of your protocol, is there a provision giving Ph.D.s discretion to make certain decisions?

DR. COTTON: Yes. We always--I mean, you would certainly want to do that. There's no way you could write a standard operating procedure that could describe every circumstance for every test that you could ever get. So if you don't allow room to use your--your judgment in analysis, then you wouldn't be giving the best possible analysis.

MR. CLARKE: Do you exercise that discretion as a result of your education, training and experience as a DNA analyst?

DR. COTTON: Well, I do and the other lab staff that are involved in the testing do as well.

MR. CLARKE: With regard to this particular re--negative control that showed this faint DNA present, did you utilize your discretion to determine that those results should be reported?

DR. COTTON: Yes, we did.

MR. CLARKE: Incidentally, does your laboratory report results according to who's paying for your services?

DR. COTTON: Of course not.

MR. CLARKE: In your laboratory, is there an approximate percentage of number of cases in which, for instance, suspects are excluded?

DR. COTTON: Yes.

MR. CLARKE: What is that approximate percentage?

DR. COTTON: The--

MR. NEUFELD: Objection. Irrelevant, your Honor.

THE COURT: Overruled.

DR. COTTON: The approximate percent of cases in which we have an exclusion is about 30 percent.

MR. CLARKE: I'm sorry. About what?

DR. COTTON: About 30 percent.

MR. CLARKE: What does that mean, when you report approximately 30 percent exclusions?

MR. NEUFELD: Objection. Beyond the scope of cross-examination.

THE COURT: Overruled. Goes to credibility. You can answer the question.

DR. COTTON: It means that we've been asked to compare a victim or--let me back up. It means we've been asked to compare a known sample with an evidence sample. And if the known sample doesn't come from the evidence sample, then they are excluded as being a contributor. So depending on the nature of the evidence and the question that somebody else cares about, that's--can be an important piece of information.

MR. CLARKE: Do you in your laboratory report results excluding certain suspects and report those results to Prosecutors who have asked you to do testing?

DR. COTTON: Yes.

MR. CLARKE: You have described, Dr. Cotton, the fact that in your laboratory, you don't test all genetic markers that are used in forensic science. And let's take an RFLP test for example. Is that right?

DR. COTTON: That's right.

MR. CLARKE: Why is that?

DR. COTTON: We use five. We feel that that provides for the great majority of cases a sufficient amount of information to--that additional markers would sort of be like icing on the cake. Now, there are circumstances where more is necessary, in which case you'd have to go to another lab to get more. But for the most part, five markers or if you did five markers and the PCR markers, you have a very good amount of information there.

MR. CLARKE: For instance--and let's take item no. 52 as an example. How many total genetic markers on that Bundy driveway stain did your laboratory test at?

DR. COTTON: Five RFLP markers and six PCR markers.

MR. CLARKE: Or a total of 11 different genetic markers?

DR. COTTON: Yes.

MR. CLARKE: Dr. Cotton, if you could--and I'm going to shift to one other area briefly. Could you tell us what LAPD evidence item numbers your laboratory actually performed the extraction and then typing process on? Can you list those for us?

DR. COTTON: Sure.

MR. CLARKE: Okay. Could you do that, please?

DR. COTTON: What items we analyzed?

MR. CLARKE: Exactly. Using--no. Actually extracted the DNA and then typed. In other words, you received an item of evidence, a swatch, and then extracted the DNA and then typed it.

THE COURT: Haven't we already asked this question in a different way?

MR. CLARKE: I have in--I'm sorry. I have in total, but not by individual item number. If I could, your Honor.

THE COURT: All right.

DR. COTTON: The easiest way I guess for me to do that is to go through the report or to, you know, move through the reports to do that.

MR. CLARKE: Okay. Can we do that in relatively short order or not?

DR. COTTON: It should be easy.

MR. NEUFELD: Your Honor, also object. This is beyond the scope too.

THE COURT: Overruled.

DR. COTTON: As long as you don't want it in some special order.

MR. CLARKE: No. If you can just list us the numbers, that would be fine.

DR. COTTON: Shall I--shall I go ahead?

MR. CLARKE: Yes.

DR. COTTON: Item 49, item 50, the three blood exemplars which were labeled to us as c-1, c-2 and c-3, item 7, 12, 49--sorry--7, 12, 47, 52, 56, 78. I think I already said 49 and 50.

MR. CLARKE: Yes.

DR. COTTON: 7. if I didn't already say 56, that's in there. If I didn't already say 48, which I think I did, that's in there.

MR. CLARKE: Did you say item no. 48 also, Dr. Cotton?

DR. COTTON: Yes. And then the four unstained swatches, no. 7 control, no. 12 control, number 49 and number 46.

MR. CLARKE: Your Honor, I'm going to repeat, if I may, in chronological order what I believe to be those numbers. Would that be acceptable to the Court?

THE COURT: Yes.

MR. CLARKE: C-1--

MR. CLARKE: And please stop me if I have any of these incorrectly, Dr. Cotton. The three knowns, c-1, c-2 and c-3?

DR. COTTON: Yes.

MR. CLARKE: Then items no. 7, 12, 47, 48, 49, 50, 52, 56, 78 and the four unstained controls, 7, 12, 49 and 56.

DR. COTTON: Yes.

MR. CLARKE: Does that sound right?

DR. COTTON: That sounds right.

MR. CLARKE: And those were items that Cellmark actually extracted and then typed?

DR. COTTON: Yes.

MR. CLARKE: Now, if I may, Dr. Cotton, I would like to turn your attention to the area of population frequencies. All right?

DR. COTTON: Yes.

MR. CLARKE: Why is it that you can test and use in your databases, say, 4- to 600 people and yet be able to make statements about rarity of types that obviously are not only higher than 4- to 600, but are in the millions or even billions?

MR. NEUFELD: Objection. Twofold, your Honor. One, first, facts that are contrary to her testimony as to the size and, two, there's no foundation.

THE COURT: Sustained. Rephrase the question.

MR. CLARKE: With regard to the number of individuals in your databases, approximately how many are there total?

DR. COTTON: Somewhere around--somewhere around 5- to 600 total.

MR. CLARKE: You utilize those databases to create--not to create--to report population frequency data; is that right?

DR. COTTON: That's right.

MR. CLARKE: And you've in fact done that in this case; is that right?

DR. COTTON: Yes, we have.

MR. CLARKE: As far as these RFLP results, several of them are in the millions or even billions; is that right?

DR. COTTON: Yes.

MR. CLARKE: How can you take numbers of 4- to 5- to 600 of people in these databases and be able to determine estimates of frequency that are numbers higher than 5- or 600? Do you understand my question?

DR. COTTON: I do. Let me give you several different pieces to that answer. First of all, we are relying on work done by other scientists knowledgeable about RFLP alleles; that is, how many of them there are to give us some estimation, statistical estimation of how large a database is needed.

MR. NEUFELD: As to that, your Honor, I move to strike as to the hearsay representations of other people.

THE COURT: Overruled.

DR. COTTON: Secondly, the--keep in mind now it's impossible to test everyone and it is actually relatively time-consuming to even test 5- or 600 people given that you can get about 15 people on one gel. You can develop a sample size--a sample and make an estimate--make an estimation from that sample. And, again, the critical word here is "estimation." You could then go out and get another sample or another group to get another sample. And if this were a legitimate thing to be doing, you could say, does the distribution of frequencies, that is, how often I see a band at 5,000 and how often I see one at 6- and the whole distribution of how often you see a particular allele, does it look like other samples from the same racial group from another part of the country. It will not look the same, but it should look similar.

MR. NEUFELD: Objection. Objection, your Honor. Again, move to strike as to other databases.

THE COURT: Speaking objection. Overruled. Ask another question.

MR. CLARKE: With regard to this process--and you've described now looking at--I'm sorry--at other information?

DR. COTTON: Yes. We do look at other information.

MR. CLARKE: What is that?

DR. COTTON: Some of the other information has come--well, it's come from various sources. There's information about our probes and our enzyme from a few sources in the United States, from many sources in Europe. There is information that's been compiled for the FB--by the FBI, a very large amount of information looking at a different restriction enzyme, but--and a panel of probes, several of which overlap with ours and several of which don't. The overall--

MR. NEUFELD: Your Honor, again, I'm going to have to object as to no discovery.

THE COURT: Overruled. Proceed.

MR. CLARKE: You can continue, Dr. Cotton.

THE COURT: No. Ask another question. This is a narrative.

MR. CLARKE: All right. You looked at other items and you described a study by the FBI?

DR. COTTON: Say that again?

MR. CLARKE: You've described the fact that you looked at other information. In particular, you were describing a study done by the FBI?

DR. COTTON: Yes.

MR. CLARKE: Is that a fairly large study?

DR. COTTON: It's very large.

MR. CLARKE: And what did it look at?

DR. COTTON: It looked at RFLP databases generated by various laboratories across the country and made comparisons as to the distribution of alleles from databases that were generated in various places at the various racial groups.

MR. CLARKE: What's the significance of those findings as far as what I asked you about, taking databases and then making estimations that are in the millions or even billions?

MR. NEUFELD: Objection. Move to strike, your Honor.

THE COURT: What's the objection?

MR. NEUFELD: Your Honor, there's absolutely no foundation.

THE COURT: Overruled.

MR. NEUFELD: And also, no discovery.

THE COURT: Overruled.

MR. NEUFELD: And hearsay.

THE COURT: Overruled.

DR. COTTON: What it tells you is that if you take a rac--a database from one part of the country for Caucasians, blacks or Hispanics and you compare it to a database from some other part of the country and you generated a profile frequency, that the frequencies are very, very similar. There are not large differences in the samples from one part of the country to the next.

MR. NEUFELD: Objection. Move to strike as to "similar," as to "they."

THE COURT: Overruled.

MR. CLARKE: You have described using RFLP typing at five probes, for instance, with regard to the Bundy stain, no. 52, and the boot drop, no. 78?

DR. COTTON: Yes.

MR. CLARKE: When you make these estimations of frequency--and I believe you touched a little bit on a concept called independence?

DR. COTTON: Yes, I did.

MR. CLARKE: And what is that again?

DR. COTTON: It means whether or not you inherit one allele that you have is not--does not affect the second allele that you might get. That is, if you inherit a band at 5,000 base pairs, that doesn't mean you'll automatically or with some probability inherit on at 6,000. What you inherit from one parent is what you inherit from the other.

MR. CLARKE: Why is that important?

DR. COTTON: Mathematically that's important because if that were not the case, it would be improper to multiply the frequencies between the different genetic locations.

MR. CLARKE: How do you--well, first of all, are these markers independent that you've described in your testing in this case?

MR. NEUFELD: Objection. Beyond this witness'--well, no foundation for this witness.

THE COURT: We've gone beyond. We've already covered this once before. I know it was not directly touched upon in cross-examination.

MR. CLARKE: I'm sorry?

THE COURT: It was not directly touched upon in cross-examination.

MR. CLARKE: All right.

MR. CLARKE: Dr. Cotton, do you have a database for each community of the United States?

DR. COTTON: No.

MR. CLARKE: Why not?

DR. COTTON: We'd have to have a lot bigger staff. It's not possible.

MR. CLARKE: Do you need a database for each community of the United States to be able to estimate these frequencies?

MR. NEUFELD: Objection. Beyond--foundation.

THE COURT: Overruled.

DR. COTTON: No.

MR. CLARKE: Why?

DR. COTTON: For all the reasons that I just talked about in the last several questions.

MR. CLARKE: Do those include, for instance, these studies that you've described of groups of people in different parts of the United States and the world?

MR. NEUFELD: Objection. Asked and answered and leading.

THE COURT: Sustained.

MR. CLARKE: When you say--I'm sorry?

THE COURT: It's leading.

MR. CLARKE: When you say the material that you have--I'm sorry. When you say specifically for the reasons that you give earlier--given earlier, can you tell us briefly what those reasons were?

MR. NEUFELD: Objection. Asked and answered.

THE COURT: Sustained. She's already told us what she's relied on.

MR. CLARKE: Okay.

MR. CLARKE: These frequencies that you've reported in this case, are they accurate in terms of being precise or are they estimates?

DR. COTTON: They are estimates.

MR. CLARKE: These numbers that you've reported, do they tell anything or do they have any relation whatsoever to the facts of this case? And I'm talking about the facts other than DNA.

DR. COTTON: No.

MR. CLARKE: Are they estimations only of what--of how common or how rare the various DNA types are that you obtained in your testing in your lab for all of the samples that you've described in your testimony?

DR. COTTON: They are only estimates, which give you a conceptualization of how common or rare the collection of genetic markers is.

MR. CLARKE: Do they in any manner take into account at all all of the other facts of this case that show what happened in this case?

DR. COTTON: They don't take into account anything except saying is this collection of genetic types common or rare or somewhere in between. That is the only thing that those numbers tell you. They tell you nothing else.

MR. CLARKE: All right. Your Honor, with the exception of the one area the witness asked to have a little time to look up, I'm concluded with my redirect at this time.

THE COURT: All right.

MR. NEUFELD: Can I have five minutes? Then I will be able to conclude the recross by the end of the day.

THE COURT: All right. Ladies and gentlemen, why don't you step back for a quick break, and we'll hopefully conclude this matter this afternoon.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Let's have the jurors, please.

MR. NEUFELD: Can I just have one moment, please? I'm just obtaining a document.

THE COURT: All right. And, counsel, for your scheduling tomorrow, we have a quit time of 4:00 o'clock due to a medical appointment for one of the jurors.

MR. COCHRAN: Could we stay to 5:00 today?

THE COURT: Okay. We'll stay to 5:00 today. All right. Let's have the jurors.

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Dr. Cotton, why don't you retake the witness stand. All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we've been rejoined by all the members of our jury panel. Mr. Neufeld.

MR. NEUFELD: Thank you. Good afternoon again, ladies and gentlemen.

THE JURY: Good afternoon.

RECROSS-EXAMINATION MR. NEUFELD

MR. NEUFELD: Dr. Cotton?

DR. COTTON: Yes.

MR. NEUFELD: Dr. Cotton, on redirect examination, Mr. Clarke asked you a series of questions concerning relative degradations if you will of the different items or some of the different items involved in this case that Cellmark analyzed. Do you recall that?

DR. COTTON: Yes, I do.

MR. NEUFELD: And along with the drops purportedly collected at Bundy, he also asked you about the--about item 78 and item 56. Do you recall that?

DR. COTTON: Yes.

MR. NEUFELD: Now, and I think you said as to item 78, that there seemed to be a fair amount of high molecular weight DNA present; is that correct?

DR. COTTON: I believe that's correct.

MR. NEUFELD: All right. And--and these questions that were put to you by Mr. Clarke were put to you in the context of showing the range of degradation that occurred on these different samples. Do you recall that?

DR. COTTON: Yes. You're right.

MR. NEUFELD: Now, are you aware, Dr. Cotton, of the fact that item 78 wasn't even processed by LAPD on either June 13th or June 14th?

DR. COTTON: No. I have--I don't know when it was processed by LAPD.

MR. NEUFELD: Would you agree as an expert that if in fact--in fact item 78, as a collected swatch, didn't even arrive at the Los Angeles Police Department on the days when they were initially processing these items, would that change your opinion as to the--as to the consequences of the variety of degradation on these samples?

MR. CLARKE: Objection. Beyond the scope as to these items.

THE COURT: Overruled.

DR. COTTON: Well, if it wasn't processed at the same time, then all the various hypotheticals about--that I was discussing wouldn't be applicable because it wasn't even there.

MR. NEUFELD: And also, you were asked about item 56. And, Dr. Cotton, were you aware of the fact that when extractions of DNA samples were done at LAPD on the 14th, that item 56 was not included in that group?

DR. COTTON: No. I--again, I don't know what was done at LAPD at any particular day.

MR. NEUFELD: Now, again, doctor--

MR. CLARKE: I'm sorry. I think the witness was cut off. She may have been finished.

THE COURT: I think she was finished.

MR. NEUFELD: I apologize, Dr. Cotton.

DR. COTTON: That's all I had to say.

THE COURT: But we're trying to finish.

MR. NEUFELD: Dr. Cotton, again, just as I asked you with regard to item 78, assume hypothetically that item 56 was--did not go through the extraction or the processing procedures for DNA typing that the Bundy drops went through on the morning of the 14th. Again, would you draw that same distinction, that those hypotheticals wouldn't apply?

MR. CLARKE: Same objection. Beyond the scope.

THE COURT: Overruled.

DR. COTTON: Yes, I would.

MR. NEUFELD: I think the one thing that you did say on redirect examination is that all those samples that purportedly originate from the Bundy walkway were either very degraded or moderately degraded; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: And you had mentioned by the way that--I'm sorry. Withdrawn. On cross-examination, initially, you did say that the one table that you could rely on in the NRC report was the table 1-1, which dealt with the DNA content of biological samples. Do you recall that?

DR. COTTON: Yes, I do.

MR. NEUFELD: And would you agree, Dr. Cotton, that in that table in the NRC report, it states that the amount of DNA present in a milliliter of blood is somewhere between 20--

MR. CLARKE: Objection. Excuse me. Hearsay, your Honor.

THE COURT: Sustained. Exceeds the scope of the redirect.

MR. NEUFELD: Your Honor--

THE COURT: The question has to be directed toward the amount of DNA present in degraded samples. That was what was asked on the redirect.

MR. NEUFELD: That's what I am going to, but this is a preliminary foundation question--

THE COURT: Keep going.

MR. NEUFELD: Can I ask that question then?

THE COURT: Rephrase the question.

MR. NEUFELD: Okay. And doesn't the table state, Dr. Cotton--

MR. CLARKE: Again, objection. Hearsay.

THE COURT: Overruled.

MR. NEUFELD: --Dr. Cotton, that there are approximately 20,000 to 40,000 nanograms of DNA in a milliliter of blood?

DR. COTTON: That's my recollection, yes.

MR. NEUFELD: And are you aware, Dr. Cotton, that there are approximately 20 drops of blood in a milliliter of blood?

DR. COTTON: No. Drops aren't too good in terms of quantitation.

MR. NEUFELD: Well, are you--are you--would you agree that as a rough estimate, that there are approximately 20 drops of blood in a milliliter of blood?

DR. COTTON: I don't really--I don't really know. And when you're--when you're using something, the--the opening of that instrument, like you have a pipetter tip with a big opening versus a little opening, you have different size drops. So I would rather work in some other quantitative sense than--than drops.

MR. NEUFELD: Have you reviewed any literature which suggested that there were approximately 20 drops of blood in a milliliter of blood?

DR. COTTON: Well, if I ever have, I wouldn't remember now. So I'm sorry.

MR. NEUFELD: Can you estimate based on your own experience approximately how many nanograms of blood--excuse me--how many nanograms of DNA are in a drop of blood, an average drop of blood?

DR. COTTON: No.

MR. NEUFELD: Can you give a range?

DR. COTTON: Well, if I got--not easily.

MR. NEUFELD: Well, to the best of your ability, doctor, what would that range be?

DR. COTTON: I don't think I can give you a range given that I'm--what I'm telling you is that I don't really know what the volume is in a drop and, therefore, I'm hesitant to try to carry that any further.

MR. NEUFELD: All right. Dr. Cotton, but you would agree that at least as to all these samples from the Bundy walkway, they are either experienced moderate or extreme degrees of degradation; is that right?

DR. COTTON: Yes, I do.

MR. NEUFELD: And you can not tell, Dr. Cotton, when you look at the yield gel or the slot blot as to whether the degraded or the remaining DNA that you see is there because it's from the original source or it's there as a result of cross-contamination; isn't that correct?

DR. COTTON: Yes. That's correct.

MR. NEUFELD: I believe you also said, Dr. Cotton, that the role that the plastic bags play in preventing cross-contamination is that obviously if a sample is in one plastic bag and another sample is in a second plastic bag, that they're not going to cross-contaminate while in that status; is that right?

DR. COTTON: Yes.

MR. NEUFELD: But would you agree, Dr. Cotton, that once the samples are removed from the plastic bags, the plastic bags are no longer a deterrent to cross-contamination? Isn't that right?

DR. COTTON: Yes. That's of course right.

MR. NEUFELD: And, Dr. Cotton, when you're referring to the reagent blank control, lighting up two DNA dots in this particular case, I believe you said that there's some discretion left to the Ph.D.s in the laboratory to decide whether or not to retest; is that correct?

DR. COTTON: Or to report or to do some other options that might be available.

MR. NEUFELD: Isn't it a fact, Dr. Cotton, that the protocol states that when the results--I'm sorry--that when a questionable result is reported, that it's to be interpreted by the Ph.D.s in the laboratory?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that with respect to the presence of those two dots, those two DNA dots on the reagent blank, their presence on those reagent blanks was not questioned?

MR. CLARKE: Objection. Vague.

THE COURT: Overruled.

DR. COTTON: No. It's obviously there. I mean it was recorded by the analyst who read the strips. And if I remember correctly, you can just barely see it in the photos, but you can see it. So it's clearly there.

MR. NEUFELD: And it was clearly there by both analysts who reviewed that data, correct?

DR. COTTON: Yes.

MR. NEUFELD: And, Dr. Cotton, you were also talking about how your database has approximately 600 people in it; is that correct?

DR. COTTON: If you add up all the three racial groups--you know, taking into account you don't have the same number of people in each probe, it's I think between 5- and 600.

MR. NEUFELD: And your database includes five different genetic loci, is that right, for the RFLPs?

DR. COTTON: Yes, it does.

MR. NEUFELD: I asked you, if you recall, on cross-examination initially if you could find out for us as to how many people in that African American database you actually ran all five genetic markers on. Do you recall me asking that question?

DR. COTTON: Yes, I do.

MR. NEUFELD: And I believe you said you could find that out overnight; is that right?

DR. COTTON: That's right.

MR. NEUFELD: And, Dr. Cotton, how many members of your African American database have been subjected to all five genetic loci in this case?

DR. COTTON: Well, somebody took the sheet from me.

MR. NEUFELD: I'm sorry.

DR. COTTON: It's not very many.

MR. NEUFELD: Is it two?

DR. COTTON: Yes. Of all the blacks, there are only two that are across all five.

MR. NEUFELD: Two people in the entire African-American database have been subjected to all five loci in your laboratory; is that right?

DR. COTTON: Well, that's true. It's--

MR. NEUFELD: Now, Dr.--

MR. CLARKE: I'm sorry. Could the witness finish the answer, please?

THE COURT: Yes.

DR. COTTON: I don't think that's a critical feature.

MR. NEUFELD: Okay. Dr. Cotton, you gave an answer before on the subject of--of the assumption of independence of these different genetic traits. Do you recall that?

DR. COTTON: Yes, I do.

MR. NEUFELD: And would you agree, Dr. Cotton, that that issue, okay, as to that assumption of independence is a question that arises in the or was in the province of population geneticists?

DR. COTTON: Yes.

MR. NEUFELD: And, Dr. Cotton, do you consider yourself an expert in the field of population genetics?

DR. COTTON: No. I'm certainly not an academics expert in the field of population genetics. I know a lot about it as it pertains to forensic DNA typing, but there's much more to know beyond what I know.

MR. NEUFELD: And so you wouldn't consider yourself an expert in that field?

DR. COTTON: No. I don't think so.

MR. NEUFELD: And, Dr. Cotton, you said at the very close of the redirect examination that these statistics that you put up on the board only tell you about the rarity of a particular profile; is that correct?

DR. COTTON: Yes. That's what I said.

MR. NEUFELD: And so would you agree, Dr. Cotton, that those statistics tell you nothing about the probability of a false positive at LAPD?

DR. COTTON: Yes. Of course that's right.

MR. NEUFELD: No further questions. One second.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: No further questions, your Honor.

THE COURT: Mr. Clarke.

MR. CLARKE: Yes. Thank you, your Honor. One topic.

THE COURT: Okay. If you have to.

FURTHER REDIRECT EXAMINATION BY MR. CLARKE

MR. CLARKE: Dr. Cotton, with regard to these five probes, do you need all five probes run on the same people in your database to create these estimates of frequencies of these various characteristics?

DR. COTTON: You do not need to have all five probes on all the people in order to create these estimates. For statistical purposes of independence, when tests are done for independence for RFLP testing, those tests are generally done for pairs of loci. So you need pairs of people that have been done on two at a minimum, and this database has those pairs. It isn't that more information can't be gained if you have people across all five loci, but we do have enough information as a database exists for those tests of independence to be done.

MR. CLARKE: Has or have your five probes been looked at for purposes of determining if they are independent from one another?

DR. COTTON: Yes, they have.

MR. CLARKE: And has that exhibit been published in the scientific literature?

DR. COTTON: Yes.

MR. NEUFELD: Objection. Hearsay and discovery.

THE COURT: All right. The fact that it's been published isn't hearsay. What it says is hearsay. Proceed.

MR. CLARKE: I'm sorry. Was the answer yes, Dr. Cotton?

DR. COTTON: It has been published.

MR. CLARKE: And was that publication an examination of your database and a determination of independence of these five probes?

MR. NEUFELD: Objection.

THE COURT: Overruled.

DR. COTTON: Yes.

MR. CLARKE: Who published that?

DR. COTTON: Dr. Bruce weir from North Carolina State University.

MR. CLARKE: Has there been any publication to your knowledge demonstrating that your five genetic markers are not independent of one another?

DR. COTTON: No, there has not.

MR. CLARKE: Thank you, your Honor.

(Discussion held off the record between Defense counsel.)

FURTHER RECROSS-EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Dr. Cotton, recognizing but in this case, when you calculated the frequency of the rarity of Mr. Simpson's genetic profile, you did rely on all five loci; is that correct?

DR. COTTON: Yes, we did.

MR. NEUFELD: Okay. And so as to the all--as to the entire--whoops. Excuse me. And so in your database, the number of people that you have typed like Mr. Simpson across all five loci were just two people; isn't that right?

DR. COTTON: Across all five, yes.

MR. NEUFELD: Yes. No further questions.

THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the evening at this time. Please remember all of my admonitions to you; do not discuss the case amongst yourselves, do not form any opinions about the case, do not allow anybody to communicate with you, don't conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned, we'll stand in recess until tomorrow morning at 9:00 o'clock. And, Dr. Cotton, you may step down. As soon as we clear the jury, we'll have a few discussions about plans for tomorrow. All right. Actually I'll see counsel in chambers about that.

(At 4:40 P.M., an adjournment was taken until, Tuesday, May 16, 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 Monday, May 15, 1995

Volume 146 pages 27357 through 27612, inclusive appearances: (See page 2)

-------------------------------------------------------------------------------------------

APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

-------------------------------------------------------------------------------------------

I N D E X for volume 146 pages 27357 - 27612

Day date session page vol.

Monday May 15, 1995 A.M. 27357 146 P.M. 27479 146

-------------------------------------------------------------------------------------------

LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

-------------------------------------------------------------------------------------------

CHRONOLOGICAL INDEX of witnesses

PEOPLE'S witnesses direct cross redirect recross vol.

Cotton, Robin 146 (Resumed) 27375n (Resumed) 27481n 27532gc 27599n (Further) 27609gc 27611n

ALPHABETICAL INDEX of witnesses

Witnesses direct cross redirect recross vol.

Cotton, Robin 146 (Resumed) 27375n (Resumed) 27481n 27532gc 27599n (Further) 27609gc 27611n

-------------------------------------------------------------------------------------------

EXHIBITS

COURT'S for in exhibit identification evidence page vol. Page vol.

11 - 11-page report 27384 146 entitled "People Versus Simpson, Interpretation Of Mixtures" by Dr. Weir

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

263 - photograph of 27556 146 a small yield gel with an arrow and the no. "1" in the upper right corner

264 - photograph of 27556 146 a small yield gel with an arrow and the no. "3" in the upper right corner

DEFENSE for in exhibit identification evidence page vol. Page vol.

1151 - drawing by 27384 146 Mr. Neufeld

1152 - 5-page report 27394 146 from Cellmark dated September 8, 1994

1153 - drawing by 27452 146 Mr. Neufeld entitled "Proficiency Test"

1154 - 6-page document 27484 146 by CACLD DNA committee

1155 - 3-page document 27485 146 from Cellmark dated May 2, 1988

1156 - photograph of 27491 146 an autorad with two arrows and the initials "R.C."

1157 - photograph of 27498 146 an autorad exhibits

1157-A - photograph of 27524 146 an autorad with three red arrows and the initials "R.C." (Computer printout)

1158 - 1-page document 27526 146 dated April 3, 1995, entitled "LAPD Scientific Investigation Division"