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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Neufeld, People represented by Mr. Darden and Mr. Harmon. Mr. Neufeld, where is Mr. Scheck?

MR. NEUFELD: Could we just have two more minutes, your Honor?

THE COURT: Okay. Anything we can take up? Any other procedural matters or do we--I guess we need Mr. Scheck for all of our other discussions.

MR. HARMON: There's one board we had showed Mr. Scheck the other day that I don't know if you looked at it. It's a report or a board that shows RFLP results only. And if you'd like, I can show it to you, and then Mr. Scheck, if there's an objection, can articulate it.

THE COURT: There is or if there is?

MR. HARMON: If there is one. I'm sure there won't be, but--

THE COURT: No, you don't need that, Mr. Fairtlough. You can just show it to me. Aha.

MR. NEUFELD: At least the jury's not here.

THE COURT: You want to show Mr. Scheck there?

MR. SCHECK: Your Honor, I do have an objection as to this board. I mean, I think it's cumulative at this point. All these results are already up and on those boards, and to put them up again and again like this I think becomes unduly confusing. It makes--I mean it's hard to keep track of all the results, and if you create another board with the same results yet again, it begins to seem like there's more than there is. So I think this is a 352 problem.

THE COURT: All right. The title of this board is "results of RFLP DNA analysis" and it purports to collect--Mr. Harmon, is this all the RFLP?

MR. HARMON: Except we've got 117 covered up because that hasn't been recorded yet and those probes are still accumulating. That's why we have it covered up.

THE COURT: And this is all the RFLP testing?

MR. HARMON: That have been presented to the jury, yes, your Honor. And the context in which--once we--once you rule on the statistical questions that we tell have to resolve, I intend to discuss degradation, contamination, cross-contamination for a short period of time and then discuss this case with Mr. Sims as if it were an RFLP case only and evaluate the evidence in the context of no concern for cross-contamination because of the exquisite sensitivity of PCR. You've heard the slogans all along here, but that's the context that I intend to show this board to Mr. Sims very briefly. If Mr.--I mean, it is also--

THE COURT: Why don't you address Mr. Scheck's two direct objections; one, that it's redundant, and, two, that it has a tendency to be misleading because it seems to say that there are additional results, more than what's already on the board that we have. That's how I understand Mr. Scheck's objection.

MR. SCHECK: And the third one of course is no statistics, your Honor.

MR. HARMON: Well, it's hard to imagine how it would seem to say that there are additional results when--if that's a concern of his, I will make it clear as a foundational question for Mr. Sims that these do not represent additional results. These represent--well, we can dispense with that if that's the concern. You know, the term "redundancy," as we discussed yesterday, may have a legal implication to you, but in the scientific context and some of the articles, we will--the scientific articles by Dr. Edward Blake, the question of redundancy in repeat analyses has a very positive implication that disabuses one of the notions that the Defense has cleverly planted in this case. So "redundancy" is a very powerful word in the scientific context and especially in this case.

THE COURT: All right. Well, don't you address my concern, Mr. Harmon.

MR. HARMON: Excuse me, your Honor?

THE COURT: Why don't you address my concern.

MR. HARMON: It is not redundant in the scientific context and, therefore, it should not be considered as redundant in the legal context. It is a powerful scientific redundancy that--we can--if you want to put a time limit on it, I can do it in three and a half minutes. If I overstep that, I'll be happy for you to pull the plug on me, but I think it is a powerful point. That in the scientific context, that redundancy addresses all of these improbable hypothetical--

THE COURT: You're still not addressing my concern, that it's cumulative, that we already have these results on other exhibits.

MR. HARMON: Well, this case is cumulative, your Honor. It is. I mean, that's the point of it. This case is cumulative, and the fact that we have produced an accumulation of scientific results shouldn't preclude us from demonstrating the scientific redundancy. It's not irrelevant. It's not cumulative.

THE COURT: Well, how are you going to use this?

MR. HARMON: I will ask--I will address it after--you know, maybe the best thing to do is try to address it in the next break after you hear Mr. Sims' testimony and his extensive reliance on the publications of Dr. Blake to address this very point. Maybe that's the best thing. Let me try to lay a foundation for it. And at that point, if you want to put a time limit or a number limit on my questions, I'll be happy to--it's not going to take a lot of time, your Honor.

THE COURT: All right. You're not going to get to this before 10:30?

MR. HARMON: I will avoid that point. Even if we do, I'll move on and then ask you to reconsider at that point.

THE COURT: All right.

MR. SCHECK: All right.

THE COURT: All right. We also had the issue regarding the articles that you wanted the Court to consider. Mr. Harmon, do you have any other comment?

MR. HARMON: No, your Honor. Those articles speak for themselves and they clarify the concerns that Mr. Scheck had yesterday.

MR. SCHECK: I don't think they are. The one concern I had is that they already elicited testimony where they were able to multiply the D1S80 against the DQ-Alpha.

THE COURT: Well, I assume this is for the purposes of any motion to strike or any further remedies you might seek if it's not--if the conclusions that Mr. Sims reached are not supported in the scientific literature.

MR. SCHECK: No. I think that the nature of the objection was that--had to do with the level of his expertise to rely on that particular document. That is--that is different than compiling a database. In other words, if you compile a database and you do a study from one particular system, that's one thing. But to claim he has the expertise to say that you can do a chain multiplication between systems is quite another. And that one suggestion in that publication most recently based on that data, I don't think he has the expertise to draw that additional inference. And if anyone were to do that, it would probably be a qualified population geneticist or biostatistician, whom they're going to be calling. So it seems to me that it really is--I understand the Court's previous ruling about these systems in place and plugging in the numbers from the database as within this witness' expertise because of the way the systems were produced and established. But I think that this is just an inference beyond which he--it's really fair for him to comment at this point.

MR. HARMON: It sounds like we're relitigating what was conceded now, that he's not supposed to be able to multiply. I mean, if you recall the events of yesterday, we pinpointed it during the break. And so you've already deemed him qualified to do that, and now the question that I perceive and I know the record bears me out on this is, his sole remaining objection was the independence of these markers. And those articles specifically address that. And so the sole question that--the burning question of yesterday was, could he multiply the Cellmark markers by the D1S80 markers, and that question was based on Mr. Scheck's representations that they may not be independent, not that Mr. Sims was not qualified. I appreciate why it's painful to hear this stuff, but that was the issue yesterday, and I think that's the only issue that we addressed in those articles and the articles are clear.

MR. SCHECK: My point is this. He's not qualified to make the assessment based on this one article recently produced in this context. I understood the Court's previous rulings, looking at all this literature and all the foundation and all the cases, was that if--and the foundation that was laid, is that if you have a system which they created a database, there's been a number of publications and studies and he is a user essentially of the database and the system that's presented to him, can say, "I've scored this band," or, "I've recognized this allele and I go to some published table and I can generate numbers based on that published table," that that was a sufficient foundation in the way the Court's ruling, and his expertise is sufficient to do that. When you're now asking to conduct the chain multiplication of different marker systems, I don't think that this is an adequate foundation in terms of this witness' expertise to evaluate this literature and say it's okay to do this additional chain multiplication. And I think it's evident from the way the numbers rapidly escalate, that it's no small matter to say that, let's do a chain multiplication of frequencies on the order of 1 in 10 for DQ-Alpha, then we'll multiply them on a chain multiplication against D1S80 and poly-markers, and all of a sudden, you're looking at much rarer frequencies than you started with. So that that is a leap that I don't think this witness is within the foundational perimeters this Court has set out is qualified to make.

THE COURT: All right. Thank you. All right. The objection will be overruled. And, Mrs. Robertson, let me ask you to mark these articles that were submitted to the Court as Court's exhibit.

THE CLERK: 12.

THE COURT: All right.

(Court's 12 for id = documents)

THE COURT: All right. Mr. Darden.

MR. DARDEN: Can we approach without the reporter for just a moment?

THE COURT: Do we have to do it now?

MR. DARDEN: I'm curious.

THE COURT: You're curious?

MR. DARDEN: Yeah.

THE COURT: I'm curious about a lot of things. Do we have to do this right now rather than take up jury time?

MR. DARDEN: Whatever you like.

THE COURT: Does it have something to do with Mr. Harmon's presentation?

MR. DARDEN: No, it doesn't.

THE COURT: Okay. Let's have the jury. We'll take it up at the break.

MS. CLARK: May I ask the Court when we are going to be able to be heard on the most recently filed motion?

THE COURT: Not now.

MS. CLARK: I knew that.

THE COURT: Today, 4:30?

MS. CLARK: Okay or tomorrow.

(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've been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: Counsel, for your information, Mrs. Robertson advises me that the two buzzes this morning which--on the Court's buzzer system indicates the jury has a question. The jury wanted to bring to the Court's attention the fact that an article in a publication regarding this case had slipped through the sensors and that they--one of the jurors had seen it and immediately brought that to the attention of the Court. And good morning, ladies and gentlemen, and thank you for your diligence in this matter. All right. Mr. Sims, would you please resume the witness stand, please, Gary Sims, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows: THE COURT: We'll isolate what it is and show it to counsel at the break. Good morning, Mr. Sims.

MR. SIMS: Good morning.

THE COURT: Mr. Sims, you are reminded you are still under oath. And, Mr. Harmon, you may continue with your direct examination.

MR. HARMON: Thank you, your Honor.

MR. HARMON: Good morning, ladies and gentlemen.

THE JURY: Good morning.

DIRECT EXAMINATION (RESUMED) BY MR. HARMON

MR. HARMON: Mr. Sims, before we complete the calculations for some of the frequencies that we hadn't gotten to yesterday, are you familiar with a--through the world--FBI world population study a large amount of HAE 3, the restriction enzyme you use, population data that could be searched for the profiles that were produced in this case?

MR. SCHECK: Objection, your Honor. 1054, beyond the scope of what we had agreed to with respect to this witness.

THE COURT: Let me see counsel with the Court reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. We're over at the sidebar. What's your 1054 objection?

MR. SCHECK: Your Honor, this is precisely what I was worried about. And that is the worldwide--so-called study, worldwide study of the FBI where they went around and they collected frequency data from different laboratories from different parts of the world with different kinds of marker systems is not--was not turned over in discovery and was not part of the calculation that this witness made with respect to these frequencies, was not part of the offer that Mr. Harmon made when I pinned him down as to which databases he was relying upon and not relying upon. So it goes beyond the scope of what he said he was going to do and what they specifically indicated in discovery when they turned over databases to us when we specifically asked what databases they were relying upon.

THE COURT: Mr. Harmon.

MR. HARMON: That was the only question I was going to ask.

THE COURT: Is he familiar with it?

MR. HARMON: Sure. And his presentation is not going to be based on it. It may be depending on the extent of cross-examination, but we've never had any intention of presenting that. I just wanted to--

MR. SCHECK: No, no, no. Then it should be struck because the implication in here is that he's relying on it if he's familiar with the world-wide study, and that's more prejudicial than probative.

THE COURT: All right. Objection is overruled, if that's all it is, is he familiar with it.

MR. HARMON: Could we--I want to read that back.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. HARMON: Mr. Sims, do you recall the question I asked?

MR. SIMS: Yes.

MR. HARMON: Are you familiar with that study in the context that I described it in the question?

MR. SIMS: Yes.

MR. HARMON: Could we have the sock photo board and the sock result board? The photo board is 262-A and the result board is 262.

(Brief pause.)

THE COURT: Mr. Fairtlough, is it possible to raise the second exhibit?

MR. FAIRTLOUGH: A little bit, your Honor, but not much.

THE COURT: All right. Why don't you raise it as high as you can.

MR. HARMON: Mr. Sims, while we're waiting, we're just going to go in the order that the stains--the numerical order that they're listed there and initially discuss the significance of the 11-probe RFLP match that--on DOJ 42A-1, sock 13, the Greg Matheson cut-out stain. Okay?

MR. SIMS: Okay.

MR. HARMON: How did you approach your calculations to this 11-probe or 11-genetic marker match between Nicole Brown and the cut-out that Greg Matheson made from sock A?

MR. SIMS: The approach that I used was to go to the bin tables, those are the tables that list the frequencies for these RFLP bins or alleles within the bins, and I made a determination based on six loci.

MR. HARMON: Okay. And what significance--so when you say "six loci," you mean six probes?

MR. SIMS: Six probes.

MR. HARMON: Six genetic markers?

MR. SIMS: Six genetic markers.

MR. HARMON: What significance do those other five probes that you did not use in your calculations have in--giving the jury some appreciation for how common or rare this match is?

MR. SIMS: Yes. The idea is that these additional systems are also highly polymorphic. They have great powers of exclusion. And so I looked at those additional loci to check the results of the sock against the reference sample.

MR. HARMON: In normal English, could you tell us what "highly polymorphic" means?

MR. SIMS: It means that--that if you were to take two individuals at random, there would be a very good likelihood that you would be able to separate them based on this type of analysis. Any one of those probes is very strong for that purpose.

MR. HARMON: People are pretty different from one another?

MR. SIMS: Yes, they are.

MR. HARMON: As you demonstrated on all of the autorads when it was easy to distinguish from among the three reference sources?

MR. SCHECK: Leading, argumentative. Let's get to--

THE COURT: Sustained.

MR. HARMON: Could you--just the way we approached the other statistics, could you describe from among the three major population groups that you've used in your calculations the frequency estimate for those three groups and the match between Nicole Brown's reference blood and Greg Matheson's cut-out stain on the sock?

MR. SIMS: Yes. For those--the six loci that I looked at, these are RFLP loci D1S7, D2S44, D4S139, D5S110, D10S28 and D17S79, the profile detected in stain 42-A(1) occurs in approximately 1 in 21 billion Caucasians, 1 in 41 billion African Americans and 1 in 7.7 billion Hispanics, again indicating that this profile is a rare event and pointing out that these are for unrelated individuals.

MR. HARMON: Now, is there any way to express to the jury what impact those other probes that do--those other genetic markers that have not played a role in your calculations have on describing how common or rare the pattern of Nicole Brown's blood is when you look at it and see it in the sock?

MR. SCHECK: Objection. Irrelevant.

THE COURT: Sustained.

MR. HARMON: Would you please relate to the jury in your opinion the impact on those numbers that you've just communicated to the jury in helping them evaluate how common or rare that pattern is?

MR. SCHECK: Objection. Irrelevant.

THE COURT: I'm going to sustain an objection to that question because I think the statistic itself speaks for itself, how common or rare.

MR. HARMON: Thank you, your Honor.

MR. HARMON: Do each of those additional tests narrow down the possibilities?

MR. SIMS: Certainly.

MR. SCHECK: Your Honor, specific objection to "these probes," these--

THE COURT: Which are we talking about, the six or the five?

MR. HARMON: Do each--

THE COURT: Sustained.

MR. HARMON: I'll rephrase it. Thank you, your Honor.

THE COURT: All right.

MR. HARMON: Do each of the additional genetic markers that do not play a role in those calculations that you've just presented to the jury, do they have an impact on those calculations?

MR. SCHECK: Objection. Irrelevant.

THE COURT: Overruled.

MR. SIMS: Yes, they do.

MR. HARMON: And just in general terms, could you explain that to the jury?

MR. SIMS: Well, as I started to say earlier, these tests are very good at distinguishing between individuals. And so what we're looking at is more and more genetic markers, more and more places on the chromosomes where we see whether or not a given stain and a given reference sample match. And the more of those that one looks at, the rarer the profile must become.

MR. HARMON: And--okay. In addition to those 11 genetic markers, your laboratory performed PCR tests on that same stain; is that right?

MR. SIMS: Yes.

MR. HARMON: And the results you've already described, DQ-Alpha, 1.1, 1.1, D1S80, 18?

MR. SIMS: Yes.

MR. HARMON: What I would like you--have you been provided data based on Cellmark's analysis of extracted DNA from the very same stain that you extracted which demonstrates the commonness or uncommonness of the PCR results in this case?

MR. SIMS: Yes.

MR. HARMON: And in--have you also considered the population data that you have for the PCR markers that your laboratory used in testing the exact same DNA in this case?

MR. SIMS: Yes.

MR. HARMON: Okay. Is it possible for an expert to calculate the combined frequency of the poly-marker inclusion, those five genetic markers, the DQ-Alpha inclusion by Cellmark, your DQ-Alpha inclusion and your D1S80 inclusion so that you could describe to the jury the commonness or rarity of the match between those PCR markers and this stain that Greg Matheson cut out from that sock?

MR. SIMS: Yes.

MR. HARMON: Have you done that?

MR. SIMS: Yes, I have.

MR. HARMON: Okay. Would you please then describe to the jury in the same way that we have--I forgot to have you write up the RFLP results. So when we do the PCR results, let's do the RFLP statistics too. Could you please express to the jury the calculation for the frequencies between--and the PCR markers matches between Cellmark and the Department of Justice?

MR. SIMS: Yes. Would you like me to step to the board?

MR. HARMON: If you'd just describe that, and then I'll ask you to write in both of those slots there. We've got a patch for one of those boards.

THE COURT: Mr. Harmon, let me ask a clarification question.

MR. HARMON: Sure.

THE COURT: You mentioned DQ-Alpha twice--

MR. HARMON: Right. Well, I was--

THE COURT: --for both labs. I assume we're only calculating this once.

MR. HARMON: That's correct. I was going to ask that after we got it up there, and I'll clarify that in a moment if I could.

THE COURT: All right.

MR. HARMON: Do you want to go up there and write up--why don't you write out the RFLP if there's enough room for that. And I've got a cover for the PCR.

(The witness complies.)

MR. SCHECK: Your Honor, while we're doing that, can we approach for just a second on a related issue?

THE COURT: Yeah, with the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: We are over at sidebar.

MR. SCHECK: I'm assuming, as the Court picked up, the poly-marker and DQ-Alpha. There's nothing about--

THE COURT: You caused this problem, you guys.

MR. COCHRAN: No. Rock did.

MR. HARMON: Maybe I can have misconduct added to my tab here.

MR. SCHECK: I want to note for the record Patrick Ewing is a great player.

THE COURT: Okay.

MR. SCHECK: The point is, DQ-Alpha and poly-marker have the same system. I assume that he has disaggregated the DQ-Alpha. In other words, that's number one. Number two, this is my objection. Is that Mr. Harmon asked a series of questions of this witness about six probes that were duplicative of the Cellmark probes, a whole series of questions about how those six probes were discriminated among people and further differentiated and further made these things more rare. That was the basis of my relevancy objection, your Honor, because he asked a whole series of questions to make it seem as though those six probes were somehow--that were not--they can't be included in the calculation because the duplicatives were somewhat added to the rareness here. And my whole problem with that form of presentation and the charts and everything that he's doing here is that it's calculated to unduly confuse the jury as to how much it really is and isn't. Now, it's a limited relevance with respect to the sock I agree. But I get very concerned when it's--you know, the whole cumulative effect, and I just wanted to put on the record that I thought that whole line of questions was a clear 352 violation and was unduly confusing.

THE COURT: All right. Noted. Thank you.

MR. COCHRAN: Can we show it to the client?

THE COURT: Yes, sure.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Mr. Harmon--excuse me. Mr. Sims, have you completed your writing?

MR. HARMON: Your Honor, I wanted the record to reflect that we have a patch to put over Cellmark's PCR calculations, a magnetic patch, because these will represent, as Mr. Sims described, a different calculation.

THE COURT: All right. And pursuant to our discussions, you'll clarify this question?

MR. HARMON: Yes, your Honor.

THE COURT: All right.

MR. HARMON: May the record reflect on exhibit 262, I'm putting a patch over Cellmark's PCR calculations to allow Mr. Sims an opportunity to present the cumulative calculations that he's just described.

MR. HARMON: Could you write up the cumulative calculations in the PCR markers between your laboratory and Cellmark? And then we'll clarify.

THE COURT: Well, let's have a clarification before we write it.

MR. HARMON: Okay. Sure.

MR. HARMON: Now, your laboratory did the same--one of the same markers that Cellmark did, DQ-Alpha; is that correct?

MR. SIMS: That's correct.

MR. HARMON: You didn't count that twice in the multiplication, did you?

MR. SIMS: No, I did not.

MR. HARMON: That would not be proper?

MR. SIMS: That would be very wrong.

MR. HARMON: Okay. Is that clear, your Honor?

THE COURT: Is there any other overlap with any of the other probes that we--

MR. HARMON: Oh, in the RFLP context?

THE COURT: No. In the PCR context.

MR. HARMON: Is there any other overlap between any of the other PCR markers?

MR. SIMS: No, your Honor.

THE COURT: All right.

MR. HARMON: So--and this is purely the cumulative frequency of the combined PCR test results between your laboratory and Cellmark on the Greg Matheson cut out from sock no. 13?

MR. SIMS: Yes. This would be for the five poly-marker tests plus DQ-Alpha plus D1S80.

MR. HARMON: Okay. Would you write the more common frequency and then two, the less common frequency or at least the common frequency from among these three groups?

(Witness complies.)

MR. HARMON: Okay. And you've got 1 in 50,000 to 1 in 6 million. What--what groups do those represent and then what is the other group? I guess we haven't explained that to the jury.

MR. SIMS: The 1 in 50,000 figure comes from the Caucasian data, the 1 in 6 million comes from the African American data, and then finally, I calculated an Hispanic figure, and that was 1 in 150,000.

MR. HARMON: Okay. Mr. Sims, why don't you stay up there. While you're there, we're going to go through the other sock stains starting with your number 42A on sock 13A in the leg area. What is the frequency for the DQ-Alpha D1S80 match which is consistent with the Defendant and the same three groups?

MR. SIMS: Same three groups?

MR. HARMON: Yes, please.

MR. SIMS: For the African American group, it would be about 1 in 570, for the Caucasian group, about 1 in 520 and for the Hispanic group, about 1 in 1400.

MR. HARMON: Okay. Could you write the least common from among those three to the most common?

MR. SIMS: Okay.

MR. HARMON: Or the most common to the least common, please.

(The witness complies.)

MR. HARMON: Okay. And would that frequency be the same for the next sock, 42-A(3) from sock 13A, the leg area? It's the same results. Would that be the same frequency?

MR. SIMS: Yes, it would.

MR. HARMON: 1 in 520 to 1 in 1400?

MR. SIMS: Yes.

MR. HARMON: Would you write that down, please?

(The witness complies.)

MR. HARMON: And would the next stain produce the same results, would produce the same sort of frequency estimate?

MR. SIMS: Yes.

MR. HARMON: Same range, 1 in 520 to 1 in 1400?

MR. SIMS: Yes. This would be 42-A(4)?

MR. HARMON: 42-A(4), yes.

MR. SIMS: Yes.

MR. HARMON: Would you write that down, please.

(Witness complies.)

MR. HARMON: Now, the next two stains, 42-B(1) and 42-B(2), produce the same results; is that correct?

MR. SIMS: 42--

MR. HARMON: 42-B(1) and 42-B(2), those are your numbers?

MR. SIMS: Yes.

MR. HARMON: From--this is the other sock now, the one with all the tiny dots on?

MR. SIMS: This is the other sock, yes.

MR. HARMON: Okay. Did you calculate a frequency for the results in that sock?

MR. SIMS: Yes.

MR. HARMON: And what is the--what is the range of frequencies, and describe the groups that those frequencies come from.

MR. SIMS: Okay. This would be for the DQ-Alpha type 1.1, 1.1 with the D1S80 type 18, 18. The frequencies would range as follows: I'll give the three groups. The African American calculation was 1 in 8900, the Hispanic calculation is 1 in 1300 and the Caucasian calculation is 1 in 990.

MR. HARMON: Okay. Could you write from the most common to the least common, please?

(Witness complies.)

MR. HARMON: Okay. Could we move on to the Bundy photo board and the Bundy result board, photo board exhibit 165 and the Bundy result board, 259?

MR. HARMON: Mr. Sims, we're going to shift gears and talk about the combined PCR frequencies for several items that you discussed yesterday. Those are item 47--these are LAPD items. And the first four are from the Bundy walkway, 47, 48, 50 and 52; and then after that, we'll--I'll ask you to do your calculations for the combined frequencies between your lab and Cellmark on the three nail items from Nicole Brown. Okay?

MR. SIMS: Okay.

(Brief pause.)

MR. HARMON: Could we lower that down because we're going to start at the top? Is that okay, your Honor? And we'll move it up as we can.

MR. HARMON: Okay. Mr. Sims, let's start at the top, item no. 47 on the Bundy walkway, the first drop that you analyzed close by--closest to the victims. Did you calculate a combined frequency for Cellmark's poly-marker results and DQ-Alpha results which included Mr. Simpson as a possible source of that and your DQ-Alpha D1S80 results?

MR. SIMS: Yes.

MR. HARMON: And in doing so again, did you not use the DQ-Alpha results twice?

MR. SIMS: I did not use the DQ-Alpha results twice.

MR. HARMON: Because that would be improper?

MR. SIMS: That would be improper.

MR. HARMON: Okay. Could you express to the jury what the combined frequency based on those calcu--your calculations for the three groups that we've been using consistently here?

MR. SIMS: Yes. The figures are as follows: For the Caucasian group, it would be 1 in 1.8 million, for the African American group, 1 in 240,000, and for the Hispanic group, 1 in 2.2 million.

MR. HARMON: Okay. Your Honor, may the record reflect I'm going to put a cover over Robin Cotton's calculations?

MR. HARMON: And, Mr. Sims, why don't you write down, as we have, from the most common to the least common among the three groups that you've just described.

THE COURT: Actually, what you might do is allow him to write on the covers and then put it up.

MR. HARMON: Good idea. Thank you.

MR. HARMON: Would that--

MR. SIMS: Sure.

MR. HARMON: Go ahead and--you want to do that one down here?

MR. SIMS: Sure.

(Witness complies.)

MR. HARMON: Okay. Why don't you put it up there and move on to 48. Okay. And 48, the results are the same as in 47, are they?

MR. SIMS: Yes, they are.

MR. HARMON: 1 in 240,000 to 1 in 2.2 million?

MR. SIMS: Yes.

MR. HARMON: Would you write that on the patch and can we put the patch on the board, your Honor?

THE COURT: Yes.

(Witness complies.)

MR. HARMON: Wrong. No. That's right. I'm sorry. Item no. 50, that's another item that you and Cellmark both tested for the same PCR markers as 47 and 48? That's another Bundy walk stain?

MR. SIMS: Yes.

MR. HARMON: Same results, same calculations?

MR. SIMS: Yes.

MR. HARMON: Would you write that down on the patch, and when you're done, put the patch up on item no. 50?

(Witness complies.)

MR. HARMON: Okay. We need a little patch on one of our patches, your Honor, if I could have a moment.

(Brief pause.)

MR. HARMON: Okay. And would you look at the result chart. And item no. 52 is not a lot of space over there. The--did you produce the same PCR cross-lab multiplication for 52 that you produced for 50, 48 and 47?

MR. SIMS: Yes.

MR. HARMON: And what are those numbers?

MR. SIMS: Again, that range would be 1 in 240,000 to 1 in 2.2 million.

MR. HARMON: Okay. And that doesn't change the RFLP result or estimate that Robin Cotton is working there, right?

MR. SIMS: No. Those RFLP results are a separate calculation.

MR. HARMON: I'll move on--if I can come back to that when we've got the patch ready, your Honor, I'll move on to items--the 84 group of items.

MR. HARMON: Mr. Sims, you've described to the jury the results of your testing and on items 84 of the three items yesterday from Nicole Brown's nail scrapings from both hands and nail clippings. Did you perform calculations for the combined frequencies of the results that Cellmark produced on that for their testing for poly-marker and DQ-Alpha which included Nicole Brown and then combine them with your D1S80 results?

MR. SIMS: Yes.

MR. HARMON: And what are the results of your calculations? What are the frequency estimates for those three groups?

MR. SIMS: Excuse me. This would be, for now, the poly-marker--five poly-marker loci, DQ-Alpha and then D1S80.

MR. HARMON: Correct.

MR. SIMS: And the results would be, for the Caucasian group, 1 in 50,000, for the African American group, 1 in 6 million, and for the Hispanic group, 1 in 150,000.

MR. HARMON: Okay. Okay. I'm handing you the patch for item 84A. Would you write down those combined frequencies and put them over in the right hand column?

MR. SIMS: Okay.

(Witness complies.)

MR. HARMON: And are these calculations the same for all three items, the scrapings from the left hand, the clippings from the right hand and the scrapings from the right hand?

MR. SIMS: Yes.

MR. HARMON: Okay. Why don't I give you the three separate patches so you can put the number down all at the same time.

(Witness complies.)

MR. HARMON: Okay. Can you place the patch over on 84A to the right over the--it's your DOJ DNA 46B. And then the other two patches are a little bit smaller. Would you put them over your 45-A(1)(B) from the right-hand clippings?

(Witness complies.)

MR. HARMON: And then your 45B, the right-hand scrapings.

(Witness complies.)

MR. HARMON: Okay. Mr. Sims, you can go back to your seat. Oh, no. We still have 52. Okay. Mr. Sims, we've got some patches on patches. Could you write down the PCR combined frequency for item 52, that drop out on the driveway, just the PCR testing that was done between DOJ and Cellmark on that stain?

(Witness complies.)

MR. HARMON: Okay. Thanks, Mr. Sims. Mr. Sims, I'd like to shift gears if I can and talk about the possible effects of contamination on PCR versus RFLP. Okay?

MR. SIMS: Okay.

MR. HARMON: You've already told us that you relied on the--

MR. HARMON: Can we take those boards down, your Honor?

THE COURT: Yes.

MR. HARMON: Thank you.

MR. HARMON: You've already told us that you rely on the scientific literature regularly in forming opinions?

MR. SIMS: Yes, I do.

MR. SCHECK: Your Honor, may we approach for a minute. I think--

THE COURT: No. Proceed.

MR. SCHECK: I think you're going to get into an area that we approached on beforehand.

THE COURT: Proceed.

MR. HARMON: Well, I don't think we are, but--

THE COURT: Proceed.

MR. HARMON: Thank you, your Honor.

MR. HARMON: What journals do you read, scientific journals?

MR. SIMS: Well, I read a variety of them. In the forensic literature, I read the journal of forensic sciences, the journal of forensic science society, the American journal of human genetics. There's a variety of other journals that relate to DNA testing and also to the forensic use of DNA testing.

MR. HARMON: And how frequently do those journals come out, average?

MR. SIMS: Well, some of them are monthly, some of them are six times a year.

MR. HARMON: And is this a rapidly evolving area?

MR. SIMS: Very rapidly.

MR. HARMON: In what sense?

MR. SIMS: Well, the technology in--DNA technology is keeping--is evolving at a very incredible rate. It's--to me, it's much like computer technology. It's rapidly evolving. And what happens is, the advances that come about in molecular biology and genetics are then transferred to the forensic level. And so we're all evolving very rapidly.

MR. HARMON: Okay. I'm going--we're going to go through some of the articles, and I want to ask you initially whether you've read and relied upon them, which is the key word, in forming any of the opinions that you're about to express, okay?

MR. SIMS: Okay.

MR. SCHECK: Your Honor, may we approach for a minute on this?

THE COURT: Have you shared these items with Mr. Scheck?

MR. HARMON: Yes, your Honor.

MR. SCHECK: And that's why.

THE COURT: Let me see counsel at sidebar with the reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the sidebar. Mr. Scheck.

MR. SCHECK: Yes. I would like an offer of proof as to where this line of testimony is going, the articles that Mr. Harmon has just given me from Dr. Blake, and I would like to know the rulings in advance so that we can work out the groundrules about what can and cannot be said in this connection so that I don't have to get up and, you know, object continually. I would like to know what the rulings are in advance.

THE COURT: What are you guarding against? A constant implication that, is this the same Dr. Blake who was observing all this testing, that type of question?

MR. SCHECK: Yes. We had an agreement that when he was beginning to get into this area, we would have a discussion about the perimeters of what could or could not be done.

THE COURT: Rock, where are we going with this?

MR. HARMON: Scientists rely on this. And while I understand their chagrin in trying to explain why he's off the witness list and why he's--and why he may not come in here, he's the leading scientist in this area.

THE COURT: I understand. We all understand that. What area are you going to question him on?

MR. HARMON: Contamination issue, degradation. These are all simply addressed in these articles, and I think we're entitled--we're clearly entitled to have an expert rely on scientific literature and articulate the basis for his opinion and how he's relied on it.

THE COURT: Why isn't that hearsay on direct examination?

MR. HARMON: I can get you 801 and 804. I mean, Judge--I mean 801 especially.

(Brief pause.)

MR. HARMON: And then I think 804 even makes it clearer, that while one may not appreciate--while they may try to trivialize his opinion is based on it, the fact is that he has based his opinion on scientific literature.

MR. SCHECK: I have no objection to him saying he bases his opinion on scientific literature and expressing his opinion, going into all these details. But what I object to is that there are many authors to this article and continually mentioning this particular author to try to raise the implication that Dr. Blake approved of all the testing not in his laboratory--that's the issue in this case--but the LAPD. So I mean if he wants to elicit that there's other articles in the field and get into specifics, that's what I really want an offer of proof as to what he's going to bring out. You know, I have no problem with him saying he bases his opinion on all this and indicating what those articles are.

THE COURT: Uh-huh.

MR. SCHECK: You know, the subject matter. I just think it's a 352 problem at the very least here to continually say, well, it's--

THE COURT: Mr. Harmon, what I'm going to tell you is off limits is this question, is this the same Dr. Blake who observed--

MR. HARMON: I'll read all the authors' names in. Yeah.

THE COURT: All right. All right. Let's proceed.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel.

MR. HARMON: Okay. Mr. Sims, I'm going to read off the names and titles of several articles and ask you if you've read and considered them, and then we'll go through them in certain areas, okay?

MR. SIMS: Okay.

MR. HARMON: Have you read an article by Comey and Budowle entitled validation studies on the analysis of the HLA DQ-Alpha locus using the polymerase chain reaction?

MR. SIMS: Is that November `91 Journal of Forensic Sciences?

MR. HARMON: Yes, it is.

MR. SIMS: Yes, I've read that.

MR. HARMON: And Budowle is b-u-d-o-w-l-e? Have you also read and relied upon--and the subjects we'll be discussing soon--a chapter in a book entitled PCR technology, principles and applications for DNA amplification, Henry Erlich, editor, chapter 17, the title is applications of PCR to the analysis of biological evidence?

MR. SIMS: Yes, I have.

MR. HARMON: The authors are Cecelia Beroldingen, B-E-R-O-L-D-I-N-G-E-N, Edward Blake, Russell Higuchi, h-I-g-u-c-h-i, George Sensabaugh, s-e-n-s-a-b-a-u-g-h, and Henry Erlich?

MR. SIMS: Yes.

MR. HARMON: Have you also read and relied upon an article in the journal of forensic science entitled polymerase chain reaction amplification and human leukocyte, L-E-U-K-O-C-Y-T-E, antigen oligonucleotide, O-L-I-G-O-N-U-C-L-E-O-T-I-D-E, typing on biological evidence samples casework experience?

MR. SIMS: Is that the one where Blake is the lead author?

MR. HARMON: It's--the authors are Edward Blake, Jennifer Mihalovich, M-I-H-A-L-O-V-I-C-H, Russ Higuchi, Shawn Walsh and Henry Erlich.

MR. SIMS: Yes.

MR. HARMON: Have you also read and relied upon--and the testimony we'll be presenting soon--an article entitled analysis of genetic markers in forensic DNA samples using the polymerase chain reaction in analytical chemistry, 1991, the authors are Rebecca Reynolds, George Sensabaugh and Edward Blake.

MR. SIMS: Yes.

MR. HARMON: Have you read and relied upon a chapter in forensic science handbook, volume 3, by Richard Safferstein, 1993, entitled DNA analysis in biological evidence: Applications of the polymerase chain reaction by George Sensabaugh and Edward Blake?

MR. SIMS: Yes.

MR. HARMON: Have you also read and relied upon an article entitled or chapter entitled applications of the polymerase chain reaction in forensic science, the authors of which are Russell Higuchi and Edward Blake, and that's in the Vanbury report, no. 32?

MR. SIMS: Yes, I have.

MR. HARMON: Okay. Mr. Sims, are you--let's focus on PCR for a moment. Is it your opinion that a typing error in the PCR process is more likely to result in a false exclusion than an inclusion?

MR. SIMS: Yes.

MR. HARMON: Okay. And have you read and considered and relied upon the casework article for that proposition?

MR. SIMS: Yes, as well as my own understanding.

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

MR. HARMON: Could you explain the basis for your opinion that a typing error in the PCR process is more likely to result in a false exclusion than an inclusion?

MR. SIMS: Yes. The basis for that is that if one obtains a result that is a false positive, then that sort of result would be more likely to say--to exclude somebody than to include somebody in most instances.

MR. HARMON: Could you be a little more descriptive of how that might occur during the PCR typing process?

MR. SCHECK: Your Honor, I would object, that this is vague and without foundation at this point.

THE COURT: Overruled.

MR. SIMS: Well, for example, if one were to test a given bloodstain against a particular individual, particular individual may--his or her type may occur, say, in 1 in 10 or something like that, maybe 1 in 20 with a DQ-Alpha, for example. And so if you're generating at random wrong results, then it's unlikely that it would match that particular individual. It's more likely that it would match--the type would be--match somebody else.

MR. SCHECK: Motion to strike.

THE COURT: Overruled.

MR. HARMON: Okay. Mr. Sims, is it your opinion that the application of PCR technology in the forensic context is in any way different than it is in the diagnostic context?

MR. SCHECK: Objection. No foundation.

THE COURT: Sustained.

MR. HARMON: Mr. Sims, is it your opinion that any of the properties of forensic DNA samples are unique--or strike that. Is it your opinion that any of the properties of the kinds of forensic samples that your lab encounters are unique to forensic science or different than clinical setting?

MR. SCHECK: Objection.

THE COURT: Foundation. Sustained.

MR. HARMON: Mr. Sims--

THE COURT: Ask him some questions about his familiarity with it.

MR. HARMON: Sure.

MR. HARMON: Are you familiar in a general context with the kinds of--or have you read the casework article?

MR. SIMS: Yes.

MR. HARMON: Okay. Would it help to refresh your recollection--is that discussed, the uniqueness or the difference of forensic samples, in the casework article, the lead author of which is Edward Blake?

MR. SCHECK: Objection. Foundation as to this witness' expertise to review that point.

THE COURT: Overruled.

MR. SIMS: Your question again, please?

MR. HARMON: The question about whether forensic samples are different than clinical samples.

MR. SCHECK: That's my objection, "clinical."

THE COURT: Overruled.

MR. HARMON: Is it discussed in that article?

MR. SIMS: Yes, I believe it is, as I recall.

MR. HARMON: Okay. Would it help to refresh your recollection if you reviewed--I can direct you to a page in that article, if you would.

MR. SIMS: Yes.

MR. HARMON: Page 721. Can I show it to--be on page 721, if you would read the paragraph at the bottom.

MR. SCHECK: My objection is--

THE COURT: I know--what's your objection? What's the legal grounds?

MR. SCHECK: No foundation for this witness--

THE COURT: Overruled.

MR. SCHECK: Wait--can I state it?

THE COURT: Overruled. Sit down.

MR. SCHECK: Well, all right.

MR. SIMS: Yes. Excuse me. What Dr. Blake and the other--

THE COURT: No. No. The question is, does that refresh your recollection as to whether or not there's any correlation between the medical diagnostic application or the forensic application.

MR. SIMS: Yes, it does refresh my memory.

THE COURT: Next question.

MR. HARMON: And do you have an opinion on that subject?

MR. SIMS: Yes I do.

MR. SCHECK: Objection as to his opinion.

THE COURT: Overruled.

MR. SCHECK: Can I also have which page you're referring to?

MR. HARMON: 721.

MR. SCHECK: Of which article?

MR. HARMON: Towards the bottom--the casework article.

MR. SCHECK: Is that which one? 721?

MR. HARMON: Yes.

(Brief pause.)

THE COURT: Proceed.

MR. HARMON: Oh, I'm sorry, your Honor.

MR. HARMON: Do you have an opinion on that subject?

MR. SIMS: Yes. The point of this is that forensic samples may be mixtures. They may be degraded, but these kinds of samples are also encountered by clinical workers using PCR technology.

MR. SCHECK: Objection. Move to strike this answer, this witness' answer about what's found in clinical technology.

THE COURT: Overruled.

MR. HARMON: And is your opinion based on having your recollection refreshed by reading the bottom of page 721 of Dr. Blake's casework article?

MR. SIMS: Well, I already had some opinion on that, but specifically with regards to the article, yes.

MR. HARMON: Okay. Now, just as an aside, have you read the NRC report that came out three years ago?

MR. SIMS: Yes, I have.

MR. HARMON: Have you relied on the NRC report in any way for any of the opinions you've expressed to this moment?

MR. SIMS: No.

MR. HARMON: And do you intend to rely on the NRC report in any way for any of the opinions that you will express for the next several moments?

MR. SIMS: No.

MR. HARMON: Could I have my book back? Could you define as best you can the term "contamination" in the crime scene forensic DNA context so the jury can appreciate the discussion we're going to have?

MR. SIMS: Yes. There are a variety of ways of looking at contamination. One would be fundamentally, for example, at a crime scene where you may have mixtures of bodily fluids, blood from two different individuals could land together, that sort of thing, or end up in a garment situation. That would be one form of contamination. Another form of contamination would be the concern one would have in the laboratory. In other words, if somebody is mishandling samples, then that could lead potentially to contamination as one DNA is transferred to another DNA. And then finally, the type of contamination that we are most worried about with PCR and that we have to take special precautions for is what is called PCR product contamination; and that's because this process of PCR, as Dr. Cotton explained, generates large numbers of these DNA segments that are of a particular short length that are considered to be PCR product now. And by generating those large numbers, you want to make sure that that material doesn't in any way contaminate your original source material or your extracted DNA.

MR. HARMON: And do you have an opinion about whether or not, generally speaking, there are adequate ways to control against those three areas of contamination?

MR. SCHECK: Objection to the form of the question.

THE COURT: Overruled.

MR. SIMS: I think it's--there's two responses here. One is that there are ways to control for the contamination. There are also ways of monitoring for that contamination. And both--both of those are important aspects with regards to contamination, both the monitoring as well as the precautions.

MR. HARMON: And I want to direct your attention to the chapter by Sensabaugh and Blake in the Safferstein article. Is the subject of those areas of contamination, which you've just described for the jury, is that discussed in that article?

MR. SIMS: Yes, it is.

MR. HARMON: Okay. Do you remember the entire discussion that occurs on pages 441 and 442 of that subject?

MR. SIMS: I haven't memorized it, but I have a good knowledge of what they say.

MR. HARMON: Okay. Would it help to refresh your recollection to review that?

MR. SIMS: Yes.

(Brief pause.)

MR. HARMON: Okay. Have you had a chance to review that?

MR. SIMS: Yes.

MR. HARMON: And so what is your opinion specifically about the kinds of controls that can safeguard against those forms of contamination?

MR. SIMS: My opinion about the types of controls?

MR. HARMON: Sure.

MR. SIMS: Well, they basically--their words basically mirror the things that I was talking about where they--for example, they mention maintaining clean work areas, using gloves, changing gloves, that sort of thing. And then also, they stress which controls should be run. They--they draw an analogy to the types of precautions that would be taken in an infectious disease situation or laboratory handling infectious materials.

MR. HARMON: And do you have an opinion based on your review of that article that should contamination occur, it can be recognized?

MR. SIMS: Yes. In most cases, it can.

MR. HARMON: And is that based on the article as well?

MR. SIMS: Yes.

MR. SCHECK: In context--well--

MR. HARMON: I want to shift to another article that I've described earlier, PCR technology, chapter 17 by Beroldinger, Blake, Higuchi, Sensabaugh and Erlich. Do you have an opinion about whether or not the most likely avenue for chance introduction of foreign DNA is during sample preparation?

MR. SIMS: I would agree with that.

MR. HARMON: Okay. And do you have an opin--or is it your opinion that common sense precautions can safeguard against that?

MR. SIMS: Yes.

MR. HARMON: And do you recall whether or not that subject is discussed in the article I just described, this chapter 17?

MR. SIMS: Yes. That chapter has a good discussion of the contamination issue.

MR. HARMON: Okay. And do you agree that the presence of a contaminant is often readily apparent?

MR. SIMS: Yes.

MR. HARMON: Is it also your opinion that appropriate controls should be used that would indicate these situations of contamination?

MR. SIMS: Absolutely.

MR. SCHECK: Objection. Leading.

THE COURT: Sustained.

MR. HARMON: What opinion do you have if any about whether or not appropriate controls should be used that would indicate these situations of contamination?

MR. SIMS: The opinion I have is that those controls should be always be run to monitor for contamination.

MR. HARMON: And what opinion if any do you have about whether or not negative controls, including extraction reagent blanks and unstained substrate controls when possible, should be run for each batch of DNA isolations?

MR. SCHECK: Objection. Compound.

THE COURT: Overruled.

MR. SIMS: I agree with that, and that's what we do in my laboratory.

MR. HARMON: And what opinion do you have about whether or not the absence of a PCR product in these control reactions attest to the validity of the typing results derived from the evidence samples?

MR. SIMS: I would agree with that.

MR. HARMON: Do you have an opinion about whether or not it is desirable to have some form of redundant sample analysis in a given case?

MR. SIMS: I would agree it's desirable.

MR. HARMON: And generally speaking, do you recall whether or not those subjects are discussed in chapter 17 that I've been referring to?

MR. SIMS: Yes. I know that chapter quite well.

MR. HARMON: Okay. But do you have it memorized?

MR. SIMS: No.

MR. HARMON: Would it help to refresh your recollection? I'll direct you to page 215--

THE COURT: He hasn't indicated that his memory needs to be refreshed as to anything so far.

MR. HARMON: Do you remember whether or not those questions I just asked you specifically are addressed the way I reiter--the way I asked you?

MR. SIMS: I believe those are in there, but it would refresh my memory to be sure that they're in there.

MR. HARMON: 215, 216.

THE COURT: This is really not an appropriate way to refresh someone's recollection. I don't believe it to be necessary at this point. Proceed.

MR. HARMON: And it's your recollection those are discussed in chapter 17 that I just--

MR. SIMS: Yes.

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

MR. HARMON: Mr. Sims, let's talk about the validation study that we discussed at the very beginning by Comey and Budowle.

MR. SIMS: Yes.

MR. HARMON: Do you have that one clear in your mind? You remember it was 19--November `91?

MR. SIMS: Yes.

MR. HARMON: Could--and I just want you to focus for a moment on the kind--was there a sample handling part of that study that's published and described in detail?

MR. SIMS: Yes. There was a--that was a major part of that article or an important part of that article.

MR. HARMON: Okay. And do you rely on that in the way you perform your PCR analyses?

MR. SIMS: Yes.

MR. HARMON: Does it help you in deciding what safeguards to take against in-lab contamination or sample preparation contamination to rely on that?

MR. SIMS: Yes, it does.

MR. HARMON: And what is your opinion about sample-to-sample contamination in the laboratory? Is it possible for that to occur?

MR. SIMS: Is it possible?

MR. HARMON: Yes.

MR. SIMS: Yes, it is.

MR. HARMON: Okay. And the opinion you've expressed is actually based on where that was demonstrated in that article; is that correct?

MR. SIMS: Yes.

MR. SCHECK: Objection. Vague as to samples, what kind of laboratory.

THE COURT: Sustained. Rephrase the question.

MR. HARMON: Okay. What--let's just open it up. What kinds of samples were handled in that case and what sorts of conclusions were drawn from the possibilities of sample handling error?

MR. SCHECK: Objection. Vague, foundation as to which case.

THE COURT: Compound.

MR. HARMON: Do you have an opinion about the kinds of sample handling errors that can occur that can allow samples to cross-contaminate one another?

MR. SCHECK: Objection. Vague.

THE COURT: Overruled.

MR. SIMS: Yes.

MR. HARMON: And is that opinion based on the sample handling portion of the casework article?

MR. SIMS: Well, and also our own experience in the laboratory with PCR and the experience of many other people using PCR.

MR. HARMON: Okay. Let's focus on the article and what your opinion is based on having read the article. What sorts of sample handling errors is it your opinion can produce sample-to-sample contamination?

MR. SIMS: The sorts of concerns would be, for example, in that article, they mentioned two wet bloodstains being brought into contact with each other. That would be one example. There are other instances. They attempted to deliberately contaminate certain stains in those articles and they had difficulty doing that with bloodstains of sufficient quality and quantity of DNA. They also did some samples where they looked at saliva and blood and that sort of thing and how that might affect the contamination issue. I think the last thing they--or one of the other things they looked at was whether or not cutting with scissors, cutting a bloodstain, whether or not those scissors would transfer contamination.

MR. HARMON: Okay. Let's focus on--there's actually a table that describes--in the Comey article that describes their efforts to force samples to contaminate one another. Is that--

MR. SIMS: Yes. They list several scenarios in that table.

MR. HARMON: Okay. And from--based on having read that article alone, what sorts of sample-to-sample contamination were they able to induce?

MR. SIMS: As I recall, they were able to induce it when blood stains were brought into contact with each other, actually touching each other. They were able to induce it with mixtures of saliva and blood, for example.

MR. HARMON: Okay. Let's start--let's take those one at a time. When you say touching one another, are you referring to the dried stains that were stored together?

MR. SIMS: Well, I think they had a low level--detectable low level contaminant when dry. It was more of a problem when they're wet and touching each other, which one would obviously expect.

MR. HARMON: Okay. When you say touching, do you mean stored?

MR. SIMS: Stored together, yes.

MR. HARMON: In other words, put together and kept together?

MR. SIMS: That's my understanding.

MR. HARMON: Would it help to refresh your recollection if you looked at page 1639 of the article?

MR. SIMS: Yes.

(Brief pause.)

MR. SIMS: Okay.

MR. HARMON: Okay. And let's just talk about the--in that sample handling study, the two top categories, dried stains stored together and wet stains stored together.

MR. SIMS: Yes.

MR. HARMON: What were the results of those attempts to force cross-contamination?

MR. SIMS: Well, what they did was, they took--they took blood from two different sources, dried stains from two different sources and tried the--tested one, then tested the other to see which one may have contaminated the other. And with one of those, they saw no exchange. With the other one, they saw that there was a trace contaminant of one of the alleles onto the other stain.

MR. HARMON: Okay. And does the article describe how long they were actually stored together?

MR. SIMS: I don't recall them actually mentioning the time. I think it just mentions that they were stored together.

MR. HARMON: And you mentioned also--give us a general idea of what sorts of other experiments, sample handling experiments the study was based on where they tried to force cross-contamination between samples that were ultimately typed using the PCR DQ-Alpha system.

MR. SIMS: Yes. For example, they looked at the effects of perspiration. They didn't find any contamination from that. They also looked at small one-microliter bloodstains that they were handling, and they did not find any contamination from that. They had a small one-microliter bloodstain that they coughed over for one minute, and that produced no contamination. And then--by that, I mean, they know the type of the bloodstain. They know the type of the cougher. And so they look to see whether or not the cougher's type ends up on the bloodstain. They also did an experiment where they took small one-microliter bloodstains and scratched their head for 30 seconds to shed their dandruff over it to see if that would cause a contamination problem, and it did not. Then they also did some experiments where they actually mixed blood and saliva, and there, as one would expect, you could get a contamination. You would see the types from the blood and the saliva.

MR. HARMON: Okay. I think you used the word "transfer" or "evidence transfer." what--or "trace transfer" in this discussion. What do you mean by that?

MR. SIMS: Well, what I'm talking about is whether or not small contributions of contamination would show up in a bloodstain.

MR. HARMON: And based on that study, the only two areas of trace transfer where wet stains stored together for some period of time--

MR. SCHECK: Objection. Leading.

THE COURT: Sustained.

MR. HARMON: Based on that study, were the only instances of--

MR. SCHECK: Objection. Leading.

MR. HARMON: --typeable DNA evidence transfer--

THE COURT: Sustained.

MR. HARMON: But the scissors, contaminated scissors, what was that again?

MR. SCHECK: Objection. Asked and answered.

THE COURT: Overruled.

MR. SIMS: Yes. The bloodstain was cut with scissors and the contamination was not detected. In other words, I--as I read the article, two stains in a row were--were cut with these scissors and the scissors, after cutting the first stain, the first stains type did not show up in the second.

MR. HARMON: Okay. Mr. Sims, let's shift a little bit here and let's talk about substrate controls in the context of the Comey article and in the context of the work that you did in this case. Okay?

MR. SIMS: Okay.

MR. HARMON: Could you define a substrate control in the context of the kinds of samples that you typed in this case?

MR. SIMS: Yes. A substrate control--for example, if we talk about blood drops on the sidewalk, one would want to collect the bloodstain and then to collect and sample an area, an unstained area where there was no blood detected nearby the bloodstain. That's a substrate control. So you're testing that particular substrate and you're testing it very close to where the bloodstain is.

MR. HARMON: Okay. And then processing it as if it were a stain?

MR. SIMS: Yes. And then it goes through the entire process and you look to see if there's any type showing up in that substrate control.

MR. HARMON: Okay. And I believe a little while ago, relying on one of the Blake, Sensabaugh articles, you define three areas of sample cross-contamination?

MR. SIMS: Yes.

MR. HARMON: And it's my recollection sample mixing in the field?

MR. SIMS: Yes.

MR. HARMON: Contamination by investigators or by lab personnel?

MR. SCHECK: Objection. Leading.

THE COURT: Sustained.

MR. HARMON: What were those three categories again?

MR. SIMS: I mentioned the contamination in the field. In other words, mixed samples occurring in the field. I mentioned contamination occurring in the laboratory as these samples are either processed or extracted, and then finally I mentioned PCR product contamination.

MR. HARMON: And that's after the PCR is amplified?

MR. SIMS: Yes.

MR. HARMON: Okay. Let's talk about the field sample mix-up. And what I want to do is discuss the implications of having substrate controls collected systematically in the field. Okay?

MR. SIMS: Okay.

MR. HARMON: And the question is, if--if a criminalist systematically alternated between substrate controls and stains in the evidence collection process, what effect if any does the presence or the availability of the substrate control have as a safeguard against sample mix-up?

MR. SIMS: It's an important safeguard because it shows to me--if the--if the substrate controls turn out to be negative, it shows to me that there is no cross-contamination from sample to sample. Because of the alternating structure of that collection process, one has a stain, then a substrate control that should turn up negative, then another stain, then another substrate control. So that monitors that between each one of those stains, you've got one of these substrate controls. And if that shows negative, then that indicates that you're unlikely to have contaminated the bloodstains on either side of that control.

MR. HARMON: Okay. What effect--let's focus on the same context as the safeguard against sample mix-up in the field. What effect does just simply collecting one stain at a time with its substrate control have as a safeguard against sample mix-up in the field?

MR. SIMS: Yes. I think that's an important safeguard because it means you're focused on one particular event and you're not likely then to be handling too many samples at once. You're just keeping track of one item at a time.

MR. HARMON: Okay. Let's move to the next category that you described, and that is contamination by investigators or laboratory personnel.

MR. SIMS: Okay.

MR. HARMON: Okay? What effect does the presence of substrate controls which type clean, do not produce a type, have as a safeguard against contamination by investigators or laboratory personnel?

MR. SIMS: Well, those are very important because you have to remember that if those are negative, in other words, they have no DNA, they're even more vulnerable to this contamination showing up than would a good bloodstain be. In other words, a good bloodstain be--a good bloodstain might have so much DNA that you may not even see a trace amount of contamination with this PCR testing. But these substrate controls, if they're negative to begin with, they have no DNA, they're certainly going to be more vulnerable to showing any traces of contamination. So that's why they're important.

MR. HARMON: Okay. As long as they test clean?

MR. SIMS: As long as they test clean.

MR. HARMON: As they did in this case?

MR. SIMS: As all of the ones that we tested were negative, yes.

MR. HARMON: Okay.

THE COURT: Mr. Harmon, we need to take our break at this point. All right. Ladies and gentlemen, please remember all of my admonitions to you; do not discuss this case amongst yourselves, don't form any opinions about the case, do not conduct any deliberations until the matter has been submitted to you; do not allow anybody to communicate with you with regard to the case. And we'll be in recess for 15.

(Recess.)

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

THE COURT: Back on the record in the Simpson matter. Counsel, two matters before we get started. The newspaper article that the jurors brought to the Court's attention appeared in a little blurb column regarding counsel's comments regarding various basketball teams, and I find this to be no harm, no foul, but I think it speaks to the diligence and the integrity of our jurors, so I will convey to them the Court's compliments. I take it there is no other comment or objection on behalf of the parties?

MR. COCHRAN: Your Honor, may I just make one inquiry? Have there been any other articles at any other times?

THE COURT: No. The first time it has happened that one slipped by. Secondly, I received over the break two notes from jurors and they are indicating that there are individuals, regular--regular attendees, meaning the media persons, and they give me seat numbers, who are constantly talking in the courtroom and who are causing them to have difficulty hearing the testimony, and they have given me the seat numbers of the persons who--in the last session who were talking constantly and disturbing them. And I am going to have Miss Hayslett identify the two individuals and those persons will be banned from further attendance in the courtroom. All right. 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. Mr. Sims. Good morning again, sir.

MR. SIMS: Good morning.

THE COURT: Mr. Harmon.

MR. HARMON: Thank you, your Honor.

MR. HARMON: In discussing the subject of--the second subject of cross-contamination of samples and when substrate controls were involved, we covered contamination by investigators and lab personnel; is that right?

MR. SIMS: Yes.

MR. HARMON: And if--if the stains and the substrate controls were alternated systematically would that provide a safeguard against cross-contamination?

MR. SIMS: Yes, it would.

MR. HARMON: And let's reflect back on the Comey article, too, and remember the contaminated scissors?

MR. SCHECK: Objection, asked and answered, leading.

THE COURT: Overruled. I assume this is foundational.

MR. HARMON: Yes, your Honor, for injecting substrate controls in there.

THE COURT: Please.

MR. HARMON: If one were to use--if a forensic scientist were to use contaminated scissors that were contaminated with a quantity of DNA and alternate between substrate controls and evidence stains, would that provide any kind of a safeguard against cross-contamination of samples?

MR. SIMS: Yes, it would, because again the scissors would be used on a bloodstain and then if there was any contamination, that should then be transferred, if it were--if was contamination it would be transferred to this substrate control which would very likely show that contamination and then that would be monitored before one would proceed then to the next bloodstain. So if that substrate control in the middle turns up clean, that indicates that there was no contamination detected.

MR. HARMON: Okay. Let me just clarify a point about the Comey article. Have you had a chance to look at it again during the break?

MR. SIMS: Yes.

MR. HARMON: If you would, the two areas where there was cross-contamination between stains, could you tell us more about how--what kind of contact, if any, those stains had, both the wet and the dry?

MR. SIMS: Well, the article indicates that the two stains were actually touching each other. They were actually stored together in a way that they were touching each other and that is the important point, is that they are in physical contact.

MR. HARMON: Let's shift to the third area and that is contamination within the laboratory. We've already discussed contamination by lab personnel in sample preparation and I think you talked about contamination by amplified product?

MR. SIMS: Yes.

MR. HARMON: Now, you previously discussed the concept of negative controls as a safeguard against contamination about PCR product?

MR. SIMS: Yes, yes.

MR. HARMON: Do--in addition to negative controls, and assuming they test clean, what are the implications of having substrate controls processed through the entire PCR process as a safeguard against contamination in the laboratory by amplified PCR product?

MR. SIMS: Yes. Those--again, those substrate controls, if they had no DNA on them to begin with, would be most vulnerable to showing any contamination, whether it occurred from this handling effects, whether there was something in the laboratory, whether there was any PCR product contamination. And because they are treated in the same manner, they go through the entire process and so this is an important control on the entire process; not just the collection, not just the extraction of the DNA, but all the way through the typing.

MR. HARMON: Okay. Umm--strike that. You have--actually, when you opened up all of the evidence if this case, have you documented the condition of the actual substrate controls that you previously enumerated when you talked about the results in this case?

MR. SIMS: Yes.

MR. HARMON: Okay. And do the substrate controls, are they all uniform in appearance for all the samples, all the substrate controls that you tested in this case?

MR. SIMS: No.

MR. HARMON: Is there a range in how they appear?

MR. SIMS: Yes, there is.

MR. HARMON: And when you sample those substrate controls, let's assume they are not uniform, some are discolored--some part are discolored, some appear clean?

MR. SCHECK: Objection, leading.

THE COURT: Sustained. Rephrase the question.

MR. HARMON: In this case, if you saw a substrate control that parts of it were cleaner than others, what part did you sample to process through the entire PCR process?

MR. SCHECK: Objection here is foundational with respect to making something hypothetical as opposed to specific.

THE COURT: Is the objection that it assumes facts that aren't in evidence yet?

MR. SCHECK: All right. Sure.

THE COURT: Sustained.

MR. HARMON: Did you sample all the substrate controls that you said you sampled in this case?

MR. SIMS: Yes.

MR. HARMON: Okay?

THE COURT: I think you asked him did he document, at the time of receipt, the substrate controls. I guess the question would be did he notice any differences between the substrates at that point.

MR. HARMON: I think I have asked a different question. I think I have moved on.

THE COURT: All right.

MR. HARMON: I haven't finished that area. Thank you, your Honor.

MR. HARMON: When you sampled the substrate controls, if one part of any of the control was dirtier, appeared dirtier than the other, which part did you sample?

MR. SCHECK: Assumes facts not in evidence.

THE COURT: Sustained.

MR. SCHECK: Specific--

THE COURT: Were there any such?

MR. SIMS: Yes, there were, your Honor.

THE COURT: Proceed.

MR. HARMON: And when you encountered such a substrate control, what did you do?

MR. SIMS: Took the dirtier or what appeared to be the dirtier area in this case, as I can recall.

MR. HARMON: Why was that?

MR. SIMS: Well, I figured that probably received more of the environment. For example, if it was a sidewalk, it probably got better contact than maybe the other area of the substrate control.

MR. HARMON: And what would that--if that had happened, why would sampling the dirtier part of it have been important to you?

MR. SIMS: Well, that--that tells me that that is most likely the area that was most heavily--for example, may have some dirt or whatever is on that substrate that I got a good area to test, in other words.

MR. HARMON: Okay. I'm going to direct your attention to just a couple of these substrate controls and see if you can describe how they appeared to you when you first observed them. Okay?

MR. SIMS: Okay.

MR. HARMON: The substrate control for LAPD item 52, the drop out in the driveway at Bundy, do you recall--do you have an independent recollection of how that appeared when you observed it and ultimately sampled it?

MR. SIMS: That one in particular I believe I do have an independent recollection of.

MR. HARMON: And what--what is that?

MR. SIMS: Well, my independent recollection was that it was sort of pinkish.

MR. HARMON: Is that the only one that was pinkish that you recall?

MR. SIMS: That is the only one I recall was pinkish.

MR. HARMON: In fact, were most of them absent of any coloration or--

MR. SCHECK: Objection, leading.

THE COURT: Sustained.

MR. HARMON: Were most of them, did they appear clean to the naked eye?

MR. SCHECK: Objection, still heeding.

THE COURT: Still leading.

MR. HARMON: How did most of them appear to the naked eye?

MR. SIMS: Most of them appeared as pieces of white fabric.

MR. HARMON: Is that unusual?

MR. SCHECK: Objection, no foundation.

THE COURT: Sustained. Sustained.

MR. HARMON: If you would, let's talk about substrate control 48, 48C. If you like I can direct your attention to a page in your notes. Do you recall how that appeared when you examined it?

MR. SIMS: Not without looking at my notes.

MR. HARMON: Would it help to refresh your recollection if you look at page 48 of your notes?

MR. SIMS: Yes.

MR. HARMON: Okay. What is your recollection of how 48 appeared?

MR. SIMS: The 48 control was our item number dna-22. I noted there was some dark debris specks associated with a cloth and I took those also for the extraction process.

MR. HARMON: Okay. Do you recall what the control for item 50 looked like, the substrate control for item 50, which is farther back along the Bundy walkway?

MR. SIMS: Again I would have to look at my notes.

MR. HARMON: Would it help? It is on the same page there, 48.

MR. SIMS: Yes. I noted that it was a piece of whitish cloth with some brownish staining. I thought it may be some soiling.

MR. HARMON: Okay. And let's just shift to some others that look differently, for example, item 29 control, that is from the steering wheel of the Bronco.

MR. SIMS: Okay.

MR. HARMON: Could you--would it help--do you remember what it looked like?

MR. SIMS: No.

MR. HARMON: Would it help to refresh your recollection if you looked at your notes on page 21?

MR. SIMS: Yes.

MR. HARMON: Okay. How did that appear?

MR. SIMS: That was generally just an irregularly-shaped piece of white cloth.

MR. HARMON: Is that unusual to see a substrate control that looked like that?

MR. SIMS: No.

MR. HARMON: Okay. And do you have actually detailed notes of each and every other substrate control that you observed?

MR. SIMS: Yes.

MR. HARMON: And photographs of them as well?

MR. SIMS: Yes.

MR. HARMON: And this is before you sampled them?

MR. SIMS: Yes.

MR. HARMON: Okay. Mr. Sims, let's move on, if you will. I would like to discuss the--the subject of degradation of DNA and cross-contamination, if you will.

MR. SIMS: Okay.

MR. HARMON: Okay. I want to give you a hypothetical and ask you some questions about the hypothetical. The hypothetical is that all of the Bundy walkway stains were collected and they were packaged in plastic bags and substrate controls were collected systematically alternating between the substrate control and the evidence stain. They were packaged in plastic bags, they were put in a truck for several hours and they were brought back to the Los Angeles laboratory. They were put in this same box with items that were collected from Mr. Simpson's residence, that were also collected systematically with substrate controls. For starters, is it possible--

MR. SCHECK: I'm going to object to this hypothetical in that form. I think it misstates the evidence and is compound.

THE COURT: Overruled.

MR. HARMON: We've already described the Comey article and you have described how at least based on studies it is possible to cross-contaminate samples; is that correct?

MR. SIMS: Yes.

MR. HARMON: And you have described the conditions under which cross-contamination can occur?

MR. SIMS: Yes.

MR. HARMON: Now, in that study none of those samples were degraded; is that right?

MR. SIMS: In my understanding in that study is that those were good quality bloodstains, yes.

MR. HARMON: Now, do you have an opinion about whether or not, just the co-existence of those--and I'm sorry, let me withdraw that question. Let's assume that there were stains from Mr. Simpson's residence which in fact were from him contained his DNA, okay?

MR. SIMS: (No audible response.)

MR. HARMON: Is it possible, scientifically possible, in your opinion, for those stains, merely by their co-existence in a room, for them to cross-contaminate one another?

MR. SCHECK: Objection at this time.

THE COURT: Sustained. Rephrase the question.

MR. HARMON: These stains from two residences are collected along with their systematic substrate controls.

MR. SIMS: Okay.

MR. HARMON: They are brought into a room where they remain for a period of time. They are not in contact with one another. Okay so far?

MR. SIMS: Okay.

MR. HARMON: Is it possible, based on that information alone, for those stains to have cross-contaminated one another?

MR. SCHECK: My--I don't know about the rules on hypothetical in terms of--but--

THE COURT: Speaking objection.

MR. SCHECK: All right.

THE COURT: Is the objection foundation?

MR. SCHECK: (Nods head up and down.)

THE COURT: Assumes facts that aren't in evidence?

MR. SCHECK: Yes.

THE COURT: All right. That objection is overruled.

MR. HARMON: I'm sorry?

THE COURT: Overruled.

MR. HARMON: Thank you, your Honor.

MR. HARMON: You may answer that question.

MR. SIMS: The question is how were those stains packaged at this point?

MR. HARMON: They were initially left in plastic bags. I will--well, actually let's start off. They are in a box together.

MR. SIMS: Okay.

MR. HARMON: They are in coin envelopes that are folded over and they are in plastic bags in those coin envelopes that are folded over. Is it possible for those samples to cross-contaminate one another?

MR. SIMS: No. I would say no.

MR. HARMON: Okay. Let's move to the evidence room. Moving that box where you don't believe cross-contamination was possible, into the evidence room, is it possible for those stains to have cross-contaminated one another and not cross-contaminated the substrate controls?

MR. SCHECK: Foundational objection.

THE COURT: Sustained. You need some additional facts now that we are in the evidence processing room.

MR. HARMON: Excuse me, your Honor?

THE COURT: You need some additional facts now that we are in the evidence processing room. It is also vague as to what state--

MR. SCHECK: There are a lot of facts.

THE COURT: I have sustained the objection, counsel.

MR. HARMON: Okay. You have told us it is not possible, given that they are packaged up in a box in the truck?

MR. SIMS: Yes.

MR. HARMON: Okay. Does moving that box into a room and leaving it on the table, is it possible for those stains to have cross-contaminated one another?

MR. SCHECK: Objection--

THE COURT: Overruled.

MR. SCHECK: --to that testimony.

MR. SIMS: Under those conditions, no.

MR. HARMON: Now, let's assume that those stains are now processed for drying and that--

MR. SCHECK: Objection, move to strike, vague on processing.

THE COURT: Overruled. He hasn't finished the question.

MR. SCHECK: All right.

THE COURT: I assume that that is next.

MR. HARMON: The processing for drying systematically alternates between the substrate controls and the evidence stains and that--

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

THE COURT: Sustained.

MR. HARMON: If one were to systematically alternate between the substrate controls and the evidence stains--

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

THE COURT: Overruled.

MR. HARMON: --and that the substrate controls ultimately were processed along with those stains and produced no typeable results, do you--is it your opinion that those samples were cross-contaminated at that point?

MR. SCHECK: Objection, speculative, assumes fact not in evidence.

THE COURT: Overruled.

MR. SIMS: I would say there is certainly no evidence for that and that I think those substrate controls would then provide a way of monitoring to show that that did not occur.

MR. HARMON: Let me add to that hypothetical, that a known reference tube of Mr. Simpson's blood was kept in that room in a black plastic garbage bag. Okay?

MR. SIMS: Okay.

MR. HARMON: Add to the hypothetical you just answered. Is it possible for those samples to have been contaminated by that reference tube in the black plastic bag without contaminating the substrate controls?

MR. SIMS: No. I would follow that up, that in other words, you wouldn't get blood out of the plastic bag to begin with. That is the main point there.

MR. HARMON: Now, let me add to that. Let's accumulate to the next question. Let's assume that each and every stain that you tested along the Bundy walkway was degraded to the point where you were unable to type with any of the PCR methods. Okay?

MR. SIMS: Okay.

MR. HARMON: Just add that to the hypothetical that I just asked you. Is it possible for cross-contamination to have occurred in that setting without cross-contaminating the substrate controls?

MR. SIMS: Well, again I would give the same answer, that the substrate controls provide evidence that that did not occur.

MR. HARMON: Okay. Now, let's move on. Are you familiar with how the Los Angeles Police Department processes evidence stains in substrate controls for drying?

MR. SIMS: I have some information on that, yes.

MR. HARMON: And let's assume--or is that information, that they use the tube drying method?

MR. SIMS: Yes.

MR. HARMON: And place them back in the coin envelope?

MR. SIMS: Yes.

MR. HARMON: And place the coin envelopes in a box?

MR. SIMS: That's my understanding, that it is box so that they can now air dry--that the tubes can now air dry.

MR. HARMON: Place the box up on a metal shelf up on the wall?

MR. SIMS: Well, this is my general understanding. I don't--I have never seen the actual room.

MR. HARMON: Let's talk about the qualities of DNA. Now, we've got everything drying up in the tubes and assume it is dried overnight.

MR. SIMS: Okay.

MR. HARMON: Okay. Have you seen photographs of what DNA looks like microscope--powerful microscopic photographs?

MR. SIMS: Well, there are--yes, very are very powerful microscopes you can see the motion of DNA, for example.

MR. HARMON: Now, can DNA fly?

MR. SIMS: I don't think so.

MR. HARMON: I mean, there are no scientific studies that have shown that, are there?

MR. SIMS: No, I don't think it has wings.

MR. HARMON: How about if it is from a bird, can it fly?

MR. SIMS: I don't think that makes any difference.

MR. HARMON: Does the DNA of an athletic person that is in a stain have any athletic prowess, more than a dead person?

MR. SCHECK: Well, I--

THE COURT: Sustained. Sustained. Sustained. The jury is to disregard the tenor of that question.

MR. HARMON: Are you aware of any scientific studies that show that DNA can come to life at night?

MR. SCHECK: Objection.

THE COURT: Sustained.

MR. HARMON: Is it possible for the sample to have been cross-contaminated up on the shelf in the box in the coin envelopes in those tubes?

MR. SIMS: Again I would answer that the substrate controls provide the monitor to ensure that this didn't occur.

MR. HARMON: Now, I believe you discussed, and I'm getting close to the end here, Mr. Sims, I believe you discussed--I think you--in discussing some of your sample processing, you mentioned you bleach your rulers; is that right?

MR. SIMS: Yes.

MR. HARMON: And I think you also said what do you to wipe your tools with when you are doing evidence processing?

MR. SIMS: I--I do three things. I do a water washdown under the tap, then I wipe it with a chem wipe, than I do an ethanol rinse and wipe that off, and finally I flame them over a bunsen burner flame, very hot flame.

MR. HARMON: What kind of tools are we talking about?

MR. SIMS: Generally that would be a pair of scissors, small scissors and an forceps, like a tweezers.

MR. HARMON: Okay. Do they have serrated surfaces on them?

MR. SIMS: Actually they are fairly smooth and sharp.

MR. HARMON: Why is that?

MR. SIMS: So they cut well.

MR. HARMON: Is there an aversion to using things with serrated edges or surfaces in processing evidence?

MR. SIMS: Well, it gives you more surface that you have to worry about.

MR. HARMON: Why do you flame your tools?

MR. SIMS: The reason I flame my tools is to remove absolutely any possibility that somehow in some way some minute trace could be carried over from sample to sample.

MR. HARMON: Have you always done that?

MR. SIMS: No.

MR. HARMON: Do you feel that you cross-contaminated any samples before you started flaming your tools?

MR. SIMS: No.

MR. SCHECK: Objection, foundation, relevance.

THE COURT: I will sustain the objection. Why don't you ask some foundational questions regarding that.

MR. HARMON: Are you aware of any cross-contamination between samples that you induced by not flaming your tools?

MR. SIMS: No.

MR. HARMON: Let's--let's talk about not flaming your tools and inject substrate controls into that process. What safeguard do the existence or the availability of substrate controls to type all the way through the process--what impact do they have on detecting cross-contamination, if it occurs?

MR. SIMS: Well, again, they are a safeguard because if one were to cut the stain, wipe the scissors, for example, then those scissors would be next to a substrate control and again that substrate control is very vulnerable, and if anything is going to get contaminated, it is the substrate control.

MR. HARMON: Why is that?

MR. SIMS: Because it should have no DNA to begin with. I mean it could--you could have a substrate control that had DNA to begin with, but assuming there is no DNA to begin with, whatever you put down is now its DNA, so in other words whatever type now shows up could be it has become that type.

MR. HARMON: Okay. And let's take--stay on the same topic and not talk about flaming tools, but talk about just wiping tools with water.

MR. SIMS: Okay.

MR. HARMON: You have a three-step wiping process. If one were to just wipe with water and systematically alternate between an evidence stain and a substrate control, what safeguard does that substrate control provide in ensuring that no cross-contamination has occurred?

MR. SIMS: Again, it should provide a safeguard in that it should then monitor for any contamination.

MR. HARMON: And if the substrate controls test clean, as they did in this case, what assurance or what do you conclude from the possibility that the cross-contamination did not occur in this case?

MR. SIMS: Again, it is another piece of evidence that you are not contaminating those samples.

MR. HARMON: Okay. Mr. Sims, my next to the last subject here, in your conventional serology expertise have you testified about the genetic marker EAP?

MR. SIMS: Yes, I have.

MR. HARMON: How many times?

MR. SIMS: I couldn't give a number on EAP in particular, but it was a commonly used enzyme in the days that I did conventional serology.

MR. HARMON: And are you familiar with the scientific literature on that subject?

MR. SIMS: Yes, I am. I have--I used to be much more familiar with it than I am now, but yes.

MR. HARMON: Okay. If you could describe the marker EAP and what a forensic scientists should be aware of in that context, what would be your brief statement of the use of EAP?

MR. SIMS: Well, I think one has to be very careful in interpreting EAP band patterns. It is subject to certain--it is an unusual marker in that it is--there are certain intensities as well as band positional things that we have to take into account. I think Mr. Matheson probably went into that in great detail, but it is unusual in that the intensities are an important part of the interpretation and the relative instabilities of certain bands.

MR. HARMON: Okay. Have you reviewed Mr. Matheson's records on this subject?

MR. SIMS: I have reviewed some of his records, yes.

MR. HARMON: And do you have those records with you?

MR. SIMS: Yes, I do.

MR. HARMON: Could I see them?

THE COURT: Mr. Scheck, do you want to take a look?

MR. SCHECK: Oh, yeah.

MR. SIMS: (Witness complies.)

(Brief pause.)

MR. HARMON: Could we have these items marked as exhibit next in order, your Honor?

THE COURT: All right. People's 273.

(Peo's 273 for id = records)

MR. HARMON: There is actually two items, your Honor. I will describe them. Mr. Matheson's analyzed evidence report dated October 18, and I will count the pages--

MR. SCHECK: Is anything being put in that wasn't previously put in when Mr. Matheson testified?

MR. HARMON: No. They are the same items. We can refer to them. Maybe Mr. Scheck can confirm they are the same items. I don't have to mark them.

MR. SCHECK: All right.

MR. HARMON: Maybe we can refer to those prior.

THE COURT: If it is already marked--

MR. HARMON: It is. I just hadn't shown the exact exhibits to Mr. Sims, so--

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

MR. SCHECK: I would prefer that we use the exhibits that were previously introduced through the prior witness.

THE COURT: Previously marked.

MR. SCHECK: For foundational matters.

MR. HARMON: Sure. One of the exhibits is an electrophoretogram marked 224-A.

THE COURT: You are withdrawing 273 at this point?

MR. HARMON: Yes, I am, your Honor.

THE COURT: All right.

(Peo's 273 for id = withdrawn)

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

MR. HARMON: We are going to have to mark Mr. Matheson's report because it is more complete than the exhibit that was marked, your Honor. I will count the pages.

THE COURT: All right. So we can keep them clear, why don't we make the additional report an addenda to the original exhibit.

MR. HARMON: Okay.

THE COURT: Miss Martinez, do you have the designation of that report?

MS. MARTINEZ: One moment, your Honor.

(Brief pause.)

MR. HARMON: This item is 23 pages, your Honor. Do you want me to go ahead, your Honor?

MS. MARTINEZ: Your Honor, People's 218.

THE COURT: All right. 218. Then the additional report will be 218-A, the more complete report.

MR. HARMON: Thank you, your Honor.

(Peo's 218-A for id = report)

MR. SCHECK: Can we just look at what is new? Just marking for identification?

THE COURT: That's correct.

MR. SCHECK: That is all right.

MR. HARMON: Okay.

MR. HARMON: Mr. Sims, have you reviewed Mr. Matheson's analyzed evidence report, and specifically with respect to items 84A and B, some typing that Mr. Sims did on some fingernail kits?

MR. SIMS: That Mr. Matheson did.

MR. HARMON: Mr. Matheson, sorry.

MR. SIMS: Yes.

MR. HARMON: Have you reviewed the electrophoretogram which is a picture of the gel that he ran those on?

MR. SIMS: Yes.

MR. HARMON: Okay.

THE COURT: Referring to People's 223-A. Electrophoretogram.

MR. HARMON: 224-A.

THE COURT: 224-A. Got it. Thank you.

MR. HARMON: Mr. Sims, I want to give you a hypothetical--

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

MR. HARMON: I'm going to put the nail board up there, your Honor.

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

(Brief pause.)

MR. HARMON: Mr. Sims, why don't you start with my hypothetical, and when the board is up there I'm going to ask you to look at the board. Okay?

MR. SIMS: Okay.

MR. HARMON: Oh, here we have it.

(Brief pause.)

MR. FAIRTLOUGH: Your Honor, I think we need to cut the feed for this board.

THE COURT: Yes. I'm going to direct the photographers not to take any photographs of this board. Thank you. Proceed.

MR. HARMON: Mr. Sims, have you had a chance to study the pictures along the bottom of that board? You have already described how those are photographs, the top five photographs. Have you had a chance to see the three along the bottom of Nicole Brown?

MR. SIMS: No. I just saw them for the first time the other day.

MR. HARMON: Have you had an adequate chance to look at them?

MR. SIMS: I would like a moment.

MR. HARMON: Okay. Sure.

MR. SIMS: (Witness complies.)

MR. HARMON: Could we raise it a little bit, your Honor? It is a little bit low for the jurors on the end.

THE COURT: All right.

(Brief pause.)

MR. HARMON: Okay. Mr. Sims, you have had a chance to look at Nicole Brown Simpson's hands and the blood on them, have you?

MR. SIMS: Yes.

THE COURT: All right. This is People's exhibit which? I forget. Which one is this? Mr. Sims, could you tell me what the evidence tag says on the corner?

MR. SIMS: 220.

THE COURT: 220, thank you.

MR. HARMON: You have had a chance to look at these three photos, Mr. Sims?

MR. SIMS: Yes.

MR. HARMON: Okay. I'm going to ask you a question, a hypothetical question, which--and I would like you to consider the following things before I ask you the question. Okay? You have considered the photographs, the three photographs of Nicole Brown Simpson's body and hands on 220. All right?

MR. SIMS: Okay.

MR. HARMON: Also, I would like you to consider the fact that you observed no tissue in the nail scrapings for--when you saw them and you processed them for PCR typing in this case. Okay?

MR. SIMS: Okay.

MR. HARMON: I would like you to consider that your PCR results were consistent with the type of Nicole Brown.

MR. SIMS: Okay.

MR. HARMON: I would like you to consider that Cellmark's PCR results were consistent with the types of Nicole Brown.

MR. SIMS: Okay.

MR. HARMON: I would like you to consider that the three separate samples which were typed by you and Cellmark all produced consistent results. Okay?

MR. SIMS: Okay.

MR. HARMON: I would like you to consider the sensitivity differences between the PCR typing method and the conventional serology marker typing for EAP. Okay?

MR. SIMS: Okay.

MR. HARMON: I would like you to consider that Greg Matheson saw no tissue when he sampled from the nail scrapings before you.

MR. SCHECK: Objection, foundation.

THE COURT: Sustained as to that last point.

MR. HARMON: Your Honor, there is testimony.

THE COURT: Sustained the objection as to that point.

MR. HARMON: Could we approach?

THE COURT: Proceed.

MR. HARMON: That Greg Matheson saw no tissue in the nail scrapings--

THE COURT: Same ruling.

MR. HARMON: Excuse me, your Honor.

THE COURT: Same ruling. I'm sustaining the objection to that aspect. Continue.

MR. HARMON: Could we search the transcript?

THE COURT: Proceed, counsel.

MR. HARMON: Is the--if Greg Matheson saw no tissue--

THE COURT: Same question; same objection; same ruling.

MR. HARMON: If Greg Matheson only sampled blood when he sampled the nail scraping kits--okay?

MR. SIMS: Okay.

MR. HARMON: And--

MR. HARMON: Objection, no foundation.

THE COURT: Overruled.

MR. HARMON: And finally, what you know about the EAP marker and specifically the BA pattern, okay, we have all those things that I want you to consider--

MR. SIMS: Okay.

MR. HARMON: Okay.--the question is would you, as a forensic serologist, exclude Nicole Brown as the source of the blood under her fingernails and on her fingernails based on Greg Matheson's report and the electrophoretogram that you reviewed?

MR. SCHECK: Objection, foundation as to blood, source of what blood.

THE COURT: I think the question is clear to the jury. Overruled.

MR. SIMS: Given all those considerations, my answer would be no.

MR. HARMON: Okay. Mr. Matheson, are you part of some conspiracy to frame the Defendant in this case?

MR. SIMS: My name is Sims, and no, I'm not.

MR. HARMON: Sims, I'm sorry. You are conspiring, Mr. Sims? You are not.

MR. SCHECK: We will stipulate to that.

MR. HARMON: Okay. Thank you. No further questions.

THE COURT: All right. Mr. Scheck, do you want to begin now?

MR. SCHECK: Well, your Honor, we have some things that we haven't shown.

THE COURT: All right. Ladies and gentlemen, we will take a brief break to we organize our exhibits here, so I will ask you to step back in the jury room, please, and this should only take about five or ten minutes.

(The jury was excused and the following proceedings were held in open court:)

THE COURT: All right. Counsel, we are still in session. All right. Mr. Scheck, you have some items you want to show counsel?

MR. SCHECK: Yeah. I have some fairly simple power point slides, brief ones, and would the Court--give the Court a copy.

THE COURT: All right. Why don't we do this: Mr. Sims, you can step down. Mr. Scheck, Mr. Harmon, why don't you both confer over these. Anything else that you are going to use with Mr. Sims?

MR. SCHECK: Yeah. And then--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: There are photographs of typing strips that they have and we have.

THE COURT: Well, show them to Mr. Harmon so that he can make sure that we are talking about the same things here. Anything else?

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, I thought that--I know Mr. Sims is looking at it, but that is not exactly how this is done.

THE COURT: All right. Why don't you have a seat, Mr. Sims.

MR. SIMS: Okay.

(Brief pause.)

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

MR. COCHRAN: Judge, Judge, may we approach, Chris and I?

THE COURT: Yes.

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

(The following proceedings were held in open court:)

THE COURT: Barry, rock.

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

(The following proceedings were held in open court:)

THE COURT: All right. Let's have the jurors out, 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. All right. Ladies and gentlemen of the jury, good afternoon again--or good morning. I'm going to take our break for the noon hour at this time with regards to the jurors. Please remember all of my admonitions to you. Don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted, and do not allow anybody to communicate with you with regard to the case. And as far as the jury is concerned, we will stand in recess until one o'clock. All right. Have a nice lunch. All right. Let me see counsel over at the side bar with the court reporter, please, Mr. Scheck.

(The following proceedings were held at the bench:)

THE COURT: Okay. I take it--we are over at the side. Mr. Harmon, I take it you have had no objection to any of the photographs that Mr. Sims and Mr. Scheck have presented?

MR. HARMON: They are handsome photographs. I couldn't object to them.

THE COURT: Okay. I have before me a--two pages of miniaturized--I take it these are boards. Are these going to be--

MR. SCHECK: Slides.

THE COURT: Video presentations that are no. 1-A through 8-H. And these are boards which say, for example, 1-A says "cross-contamination factors." 2-B says "degradation." 3-C says "high DNA content versus low DNA content." no. 4-D says "different scenes" and has various graphics, an automobile and then two residences. There is a 5-E, has an exploding thermometer, plus the--

MR. HARMON: That is what?

MR. SCHECK: That is a--the same logo that was used in a previous recitation of a test-tube.

THE COURT: Well, that is--I thought you were talking about high temperature and degradation.

MR. SCHECK: No, no, no. That is a reference sample tube.

THE COURT: Well, 6-F says "suspect reference samples" and then has the international symbols for man and woman. 7-G is just a series of numbers. 8-H has "aerosols, paper, gloves, instruments" and then 9-J combines many of these aspects. Mr. Scheck, I have a problem with the thermometer.

MR. SCHECK: Umm--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, I will make it clear that that is a blood vial and that was a logo that was used previously in one of our exhibits for the blood vial.

THE COURT: Well, my concern, too, is that we don't have an exploding blood vial or a spewing blood vial. That is beyond the scope here.

MR. SCHECK: Well, the--the way this question is going to be formed has to do with the testimony--well, first of all, the--the questions of the witness will have to do with statements in his protocol and in the AMP-FLP type user guide and in the other publications about reference samples and test-tubes and their proximity to evidence samples and rules about not combining them. Also, there is testimony in the case with respect to Greg Matheson testified that opening the tops of reference tubes should be done with chem wipes because they have sprays that come when you open the top of the reference tube, and he testified to that when he was talking about the amount of blood.

THE COURT: Let me ask, rock, what are your--

MR. HARMON: Well, this is entertaining, but it is argument. Can we borrow a phrase that we were talking about a while ago? It is also redundant argument. The words are fine, although I think that is still argument. Up there on the chart, something that actually illustrates the phenomena, that is okay, the degradation, but 3-C, that looks like the scales of justice and we don't talk about justice, because it is hard to talk about, but that just looks like the scales of justice. That is a symbol of something that has no place on this chart. There is a place for it, but it is not on this chart. Everybody knows what a house and a truck and a house look like, but the point I'm making, all these together is that you can jumble them until they are together in 9-J and it looks like a Sunday morning cartoon thing and says whose name is this spelled out by and the symbols, and I wrote in on 6-E should put "hombres" and "mujeres" because that looks like the bathroom signs, so it is misleading because we don't want people to think that is what they have to do here. It is just a suspect reference sample. The tube, I agree with you, the whole thing is just as argumentative as the boards that I put forth that you kept out. I don't really disagree with you, that you kept these out, but this is just argument that words can illustrate, but I don't know. Maybe there is danger if you connect the dots on those it will spell guilty. On 9-J there is probably something cryptic in here that we are not aware of, but I think words and clear non-argumentative symbols are what is appropriate to this by the jury, but not the stuff that you all combine together. That is 9-J is clearly argumentative. It is just a compilation of things that may or may not have any application to this case. And this would be beautiful argument material, just like our boards that were used for that point, but at this point I think that dazzling people with these slides, which may or may not be a basis for this testimony, you know, this--we might be having this discussion at a later point when they say I'm going to have a witness who is going to say all these things happened, but this is cross-examination of our witnesses, and these symbols are going to be up there whether or not Gary Sims admits that they are factors to consider, and I think that changes the picture completely.

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

THE COURT: Mr. Scheck.

MR. SCHECK: These are all taken right out of his protocol and the guides as precautions, and all that these symbols are, are visual aids, just like the blood drops on their board, et cetera. If we already used most of these in previous displays--the only ones that we haven't are the houses and the car and the man and the woman which I think in a piece of paper--and there are certain limitations one has in terms of clip art, but I think that these all roughly approximate what it is, and I will ask questions with respect to the blood vial indicating exactly what is at issue. Those are the DQ-Alpha strips--pictures of it I'm not going to introduce--these are just the strips, the pictures that Dr. Blake took.

THE COURT: Okay. I'm going to sustain the objection to 5-E, the exploding thermometer.

MR. SCHECK: Can we--

THE COURT: I don't think that is--

MR. SCHECK: Can we try to--we have certain limitations to our clip art.

THE COURT: Well, life in the big city.

MR. SCHECK: We will try to change that one maybe to just--

THE COURT: If it is just a test-tube, that is one thing, but--

MR. NEUFELD: We have a test-tube.

THE COURT: That is a spin on the evidence.

MR. SCHECK: We have a test-tube and we will substitute that.

THE COURT: Let me see it when we come back.

MR. HARMON: Judge, could we--this has happened consistently. Can we get a disk copy of this and can we also get a color copy? We asked Howard and he said it would take some time and I notice he is gone.

MR. HARRIS: It has already started to print.

MR. SCHECK: We will just change the blood vial.

MR. HARMON: Then I have no objection to the strips because they are DOJ record.

MR. SCHECK: I would actually make a request that we--your Honor, I would like them to produce copies of Mr. Sims' strips of the same photographs. If you recall, this actually happened during DNA discovery where we gave them more than they gave us in terms of proficiency. I think 3000 pages worth.

THE COURT: Uh-huh.

MR. SCHECK: But the point is, is that we were forced to rely on Dr. Blake's photographs of these strips. Now some of the interpretations of these strips are going to come into issue and I want to see their photographs of the same strips, so that I'm not put in a position--

THE COURT: All right. Does Sims have them with him? Mr. Sims?

MR. SIMS: Yes, your Honor.

THE COURT: Do you have the photographs of the PCR strips in this case?

MR. SIMS: Yes, I do have those with me.

THE COURT: All right.

MR. SCHECK: Okay.

MR. HARMON: Judge, now the only problem is, you know, he has got everything. He has got hundreds of things and so it is nice to have notice because he has got to eat lunch; too. We have everything, but the timing of how we get it, it gets complicated, and that is why a courtesy notice--

MR. SCHECK: I did.

THE COURT: Well, if it is not too much trouble, see if you've got the photos for the PCR strips for here.

MR. HARMON: For which?

MR. SCHECK: The ones--

MR. HARMON: Can I talk to them about them?

MR. SCHECK: I just want to get just these copies.

THE COURT: Okay.

MR. HARMON: Have them down here when we come back.

THE COURT: All right. We will stand in recess.

MR. HARMON: Okay.

(The following proceedings were held in open court:)

(At 11:55 A.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; THURSDAY, MAY 18, 1995 1:00 P.M.

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

APPEARANCES: (Appearances as heretofore noted.)

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

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

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

THE COURT: All right, counsel. Mr. Scheck.

MR. SCHECK: I'm sorry. We have substituted the--a test tube for the exploding blood vial.

THE COURT: No. The thermometer, bursting thermometer.

MR. SCHECK: Thermometer.

THE COURT: Mr. Harris, do you have that?

MR. HARRIS: Yes, your Honor.

THE COURT: Let me see it. Let's have it quiet in the courtroom, please.

(Brief pause.)

THE COURT: All right. Any other comment?

MR. HARMON: Other than the ones that we made before, that they're argumentative in total, your Honor, none.

THE COURT: All right. Thank you, counsel. All right. Objection's overruled given the modification.

MR. HARMON: Mr. Harris has agreed to give us a copy of that on disk so that we can use it too.

THE COURT: Yes. All right. Anything else?

MR. HARMON: A couple points, your Honor. I'd like--it appears that the electrophoretogram that we showed is a similar photograph taken at a different time than the one that Mr. Sims looked at. So I would like to mark the one that he presented as the one he reviewed. They're photos of the same thing, but they're different photos. And just to--because this is what he viewed, I'd like to have that marked.

THE COURT: All right. That would be 273.

(Peo's 273 for id = electrophoretogram)

MR. HARMON: And then the only other point that I have, your Honor--I don't want to reask the question, but depending on cross-examination, I have to. In fact, Mr. Matheson said he didn't see any tissue when he sampled it on page 25403 and 25404. So I think the point was made in my question to Mr. Sims, but--

THE COURT: I think you got the point there was--he tested only for blood or tested only blood particles there. I'll look at that over the recess if you'll give me the--

MR. HARMON: I have a copy of those pages.

THE COURT: All right. I think we've cleared it up, but I don't think--

MR. HARMON: I think the question, approximately had the same material, but--

THE COURT: Is that a pun? Never mind.

MR. SCHECK: There's one question that I know I'm going to ask that--maybe pretty soon where I'll need some guidance from the Court about how to ask it.

THE COURT: And what might that question be?

MR. SCHECK: Well, the--when I get to the issues of discussing--well, can I approach and do that without the--

THE COURT: What's the general topic?

MR. SCHECK: General topic is handling samples from two different crime scenes, and I want to find a way--the police and the crime laboratory personnel or certainly police, probably the crime laboratory personnel, had certain knowledge in this case with respect to what Mr. Sims said about the blood at Rockingham prior to handling and conducting an analysis of samples. And I know that I want to ask this question--

THE COURT: Sounds like a touchy area.

MR. SCHECK: That's why I'm bringing it to your attention.

THE COURT: Why don't you ask to approach when you get to that point then.

MR. SCHECK: All right. It will be pretty soon, but--

THE COURT: All right. Let's have the jurors, please.

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

THE COURT: Thank you, ladies and gentlemen. Please be seated. The record should reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: All right. Mr. Sims, would you resume the witness stand, please.

Gary Sims, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:

THE COURT: All right. Good afternoon again, Mr. Sims.

MR. SIMS: Good afternoon, your Honor.

THE COURT: Sir, you are reminded you are still under oath. And, Mr. Scheck, you may commence your cross-examination.

MR. SCHECK: Thank you. Good afternoon, ladies and gentlemen of the jury.

THE JURY: Good afternoon.

CROSS-EXAMINATION BY MR. SCHECK

MR. SCHECK: Good afternoon, Mr. Sims. How are you, sir?

MR. SIMS: Fine. Good afternoon to you.

MR. SCHECK: Pleasure to see you. Mr. Sims, the socks you're aware in this case were first collected by the Los Angeles Police Department on June 13th?

MR. SIMS: That's my understanding, yes.

MR. SCHECK: And they were cut and tested by--for--with conventional serology by Greg Matheson on September 21st?

MR. SIMS: That's my understanding, yes.

MR. SCHECK: And they were sent to you on September 26th?

MR. SIMS: I believe that's the correct date.

MR. SCHECK: And the fingernail scrapings and clippings, items 84, you received from the Los Angeles Police Department after they'd been tested by Greg Matheson?

MR. SIMS: Yes. That's my understanding.

MR. SCHECK: And you received one set of Bronco swatches that were collected on June 14th?

MR. SIMS: Well, I believe we received several sets from the Bronco. Is there a specific item number?

MR. SCHECK: Well, set of items number in the 20's through 31, weren't those all collected on June 14th by Dennis Fung and Andrea Mazzola?

MR. HARMON: Objection. Calls for hearsay.

MR. SCHECK: Just looking from your records of the labelings on the bindles and coin envelopes, you got one set of samples that indicated they were first collected on June 14th?

MR. HARMON: Same objections. Hearsay.

THE COURT: Sustained. Why don't you rephrase the question.

MR. SCHECK: Right. Did you receive a set of samples that had notations on them indicating they were collected on June 14th from the Bronco?

MR. SIMS: I don't recall the date of June 14th being on those samples.

MR. SCHECK: On the coin envelopes.

MR. SIMS: I don't recall that being on the coin envelopes because I--no, I don't. I don't. Is there a specific item number? I'll look it up.

MR. SCHECK: All right. Why don't we take a look at, for example, item no. 31.

MR. SIMS: Okay.

(Brief pause.)

MR. SIMS: Okay. That's on my notes, page 23, the initial examination.

(Brief pause.)

MR. SCHECK: Let's try it this way, Mr. Sims. You received swatches from the Bronco that had LAPD item numbers in--with two digits?

MR. SIMS: Yes.

MR. SCHECK: From the 20's into the 30's?

MR. SIMS: Yes.

MR. SCHECK: All right. Then you received a second set that had three digits in terms of their item numbers in the 300's?

MR. SIMS: Yes.

MR. SCHECK: Okay. And do your notes reflect that those two sets of swatches were collected at different times?

MR. HARMON: Objection. Calls for hearsay, speculation, no foundation.

THE COURT: Sustained.

MR. SCHECK: You received items 115, 116 and 117, swatches from the rear gate?

MR. SIMS: Yes.

MR. SCHECK: And from examining the coin envelopes and bindles, are you aware that those were collected on July 3rd?

MR. HARMON: Objection. Calls for hearsay, speculation, no foundation.

THE COURT: Sustained.

MR. SCHECK: From your records, do you have information that the glove from Rockingham, the right-hand glove, item no. 9, was examined, handled and cut by Collin Yamauchi of the Los Angeles Police Department on June 14th?

MR. HARMON: Objection. Hearsay, speculation.

THE COURT: Sustained.

MR. SCHECK: Do you see initials on the glove?

MR. SIMS: Yes.

MR. SCHECK: All right. Did you see in the packaging from the glove an indication that Mr. Yamauchi had handled those on June 14th?

MR. HARMON: Objection. Calls for hearsay, speculation, no foundation.

THE COURT: Sustained.

MR. SCHECK: Items 47, 48, 49, 50 and 52 your reco--are swatches from Bundy?

MR. SIMS: That's my understanding, yes.

MR. SCHECK: And on the coin envelopes that you received, there was a date associated with those items of June 13th?

MR. SIMS: I--excuse me. I don't believe that date was on those coin envelopes.

MR. SCHECK: Oh. With respect to the biological material that you tested on any of the items that you've testified here about today and the last few days, you do not know how any of the biological material got on those items, do you?

MR. SIMS: No.

MR. SCHECK: And you have no idea when the biological material got on those items, do you, from your own personal knowledge?

MR. SIMS: No.

MR. SCHECK: And there is no test that you can conduct on a specimen containing the biological material to tell you if it was there when it was--biological material was there when it was first collected or whether it got there through cross-contamination?

MR. SIMS: That's correct.

MR. SCHECK: Now, once a specimen like a swatch has been cross-contaminated such that the biological material on it, all right--withdrawn. Once a swatch has been cross-contaminated with biological material and it's received at your laboratory and you test it, you're going to get typing results that reflect the cross-contaminant?

MR. HARMON: Objection. That's vague.

THE COURT: Why don't you rephrase the question.

MR. SCHECK: All right. If you receive a swatch that contains biological material from a cross-contamination, if you do your job correctly and don't contaminate it yourself in the laboratory, you should get the--in your DNA typing results, the genotypes from the biological material of the cross-contaminant?

MR. HARMON: Objection. That's vague as to amounts.

THE COURT: Why don't you rephrase the question.

MR. SCHECK: You have a swatch that contains biological evidence.

MR. SIMS: Okay.

MR. SCHECK: Sufficient to get a DNA typing result.

MR. SIMS: Okay.

MR. SCHECK: That biological material came from a cross-contamination. Are you with me?

MR. SIMS: Yes.

MR. SCHECK: All right. If you do not do anything to contaminate the sample in your laboratory, when you perform a DNA test, you should get in your typing results the genotypes associated with that biological material that came from the cross-contamination?

MR. SIMS: Yes, as long as there was enough from the contamination to get a typing result.

MR. SCHECK: Right.

MR. SIMS: Yes.

MR. SCHECK: If you had a sufficient biological material there to get a PCR typing result, you'd find it?

MR. SIMS: Yes.

MR. SCHECK: Same with RFLP?

MR. SIMS: Yes.

MR. SCHECK: Now, if the cross-contaminant on that swatch after you tested it and did nothing to contaminate it were then given to a second laboratory, they should still get the same result you got assuming that they did not in their own laboratory analysis contaminate the sample?

MR. SIMS: That's true.

MR. SCHECK: And if we gave it to a fourth and a fifth laboratory, as long as there was still enough material to test, they should all get the same result?

MR. SIMS: Well, now you're assuming that the contamination would be uniform across, for example, a swatch.

MR. SCHECK: Say you have enough biological material, right?

MR. SIMS: Yes. Yes.

MR. SCHECK: So--and if one of those laboratories, let's say the second laboratory in were Dr. Blake's laboratory, he should get the same result you got?

MR. SIMS: Yes.

MR. SCHECK: If he give it to Dr. Lee's laboratory, he should get the same result you got?

MR. SIMS: Again, with the proviso that this is a uniformed contamination.

MR. SCHECK: Now, would you agree that in terms of multiple testing by laboratories, that the reliability of the testing is no stronger than the weakest link in that chain?

MR. SIMS: That's a pretty general question, but in essence, yes, I would agree with that.

MR. SCHECK: All right. And if a cross-contamination occurred to the Los Angeles Police Department for a specimen in this case, you tested it, then a series of subsequent labs tested it, that would not in any way rectify the first cross-contamination?

MR. SIMS: Well, now--

MR. HARMON: Objection. Inadequate basis for that hypothetical.

THE COURT: Overruled.

MR. SIMS: When you mention that kind of contamination, you're saying some kind of genomic DNA contamination?

MR. SCHECK: Genomic DNA contamination.

MR. SIMS: Yes.

MR. SCHECK: All right. And when we're talking about genomic DNA contamination, so the jury understands, we're talking about a situation where one would get let's say blood from one source onto another specimen.

MR. SIMS: Well, it would have to be another bloodstain as opposed to like one of the substrate controls or--

MR. SCHECK: No. Onto another biological specimen, another specimen--

MR. SIMS: Okay. So bloodstain to bloodstain.

MR. SCHECK: Bloodstain to bloodstain.

THE COURT: Excuse me. Gentlemen, you need to allow Mr. Scheck to finish answering--excuse me--asking the question, and Mr. Scheck--

MR. SCHECK: Yes.

MR. SIMS: Sorry, your Honor.

MR. SCHECK: So the answer is yes?

MR. SIMS: Yes.

MR. SCHECK: Okay. And that's to distinguish it from, you were talking about at the end of your examination, something called PCR carry-over contamination?

MR. SIMS: Yes.

MR. SCHECK: That's a separate matter?

MR. SIMS: That's a separate issue.

MR. SCHECK: Now, you--your primary area of expertise is criminalistics and forensic serology?

MR. SIMS: Well, and now I would add forensic DNA analysis to that too.

MR. SCHECK: But when we say "criminalistics," that's been your primary training?

MR. SIMS: Yes.

MR. SCHECK: That's been what you've been doing in the various different laboratories where you've worked?

MR. SIMS: Yes.

MR. SCHECK: You do not hold yourself out to this jury as an expert in molecular genetics?

MR. SIMS: No, I would not.

MR. SCHECK: You do not hold yourself out to this jury as an expert in population genetics?

MR. SIMS: Only with regards to the application of population genetics, but I would not consider myself a population geneticist, no.

MR. SCHECK: Uh-huh. You do not hold yourself out to this jury as an expert in statistics or biostatistics?

MR. SIMS: No. I don't see that as my specialty, no.

MR. SCHECK: All right. You do not hold yourself out to this jury as an expert in clinical medicine?

MR. SIMS: No.

MR. SCHECK: You do not hold yourself out to this jury as an expert in the application of PCR base techniques to samples in clinical medicine?

MR. SIMS: No, I do not.

MR. SCHECK: By training and experience, your focus over the last decade has been the methods that a crime laboratory ought to use in handling forensic samples?

MR. SIMS: Yes. That's part of my background. Yes.

MR. SCHECK: Well, a part? Wouldn't that be a major focus of all the work you've done?

MR. SIMS: Well, I think the way you phrased that, there's a lot more to what I do than just what you mentioned.

MR. SCHECK: Oh--well, I don't mean to--to--to limit it. In fact, you take great pride in being somebody that has expertise in methods that a crime laboratory ought to use when handling forensic specimens for purposes of conventional serology testing or forensic DNA testing?

MR. SIMS: Well, I--I--I think that hinges on, you saying I take pride in that, I guess I do take some pride in that, but that's not--that's not me.

MR. SCHECK: Well, that is an area that you're holding yourself out to this jury as having expertise on?

MR. SIMS: Well, yes, I would agree to that. But you started by saying it's something I pride myself on, and--

MR. SCHECK: Well, I was--

MR. SIMS: I'll thank you for the compliment.

MR. SCHECK: --trying to be nice?

THE COURT: Well, while you're trying to be nice, you're talking at the same time again.

MR. SCHECK: That's because we're--

MR. SIMS: Sorry, your Honor.

MR. SCHECK: Now, as an expert in crime laboratory procedures, you would agree, would you not, that there are certain factors which can create a risk of cross-contamination when handling forensic samples in a laboratory?

MR. SIMS: Yes.

MR. SCHECK: And that there are certain methods and precautions that ought to be followed to prevent cross-contamination?

MR. SIMS: Yes.

MR. SCHECK: Your Honor, I would like to--where are the numbers on those?

(Brief pause.)

MR. SCHECK: I have a series of slides I would like to display to the jury and the witness. Could we call--should we call them collectively 1159, and then I'll do 1159-A, B and C?

THE COURT: 1159.

(Deft's 1159-A though I = slides)

MR. SCHECK: Could we show 1159-A.

MR. SCHECK: I guess this is the departure point for our discussion, cross-contamination factors.

MR. SCHECK: Could we now see 1159-B.

MR. SCHECK: Mr. Sims, would you not agree that degradation of a crime scene specimen is an important factor to consider with respect to the issue of cross-contamination?

MR. SIMS: Well, degradation by itself is a factor in that if there's very little DNA there, one would have to be more worried about what could happen to that particular sample, that's true.

MR. SCHECK: All right. And in this particular slide, in the box, red box no. 1, I'd ask you to regard that as a blood swatch containing the DNA of person no. 1 and then the arrow indicates a process of degradation where the biological material that would show up on a DNA typing test has been degraded to the point where it's not detectable.

MR. SIMS: So it's no longer detectable.

MR. SCHECK: No longer detectable.

MR. SIMS: Okay.

MR. SCHECK: All right. And a swatch such as the one on the right-hand side where the biological material has been degraded to the point where it is no longer detectable is the kind of sample that one should take great care in handling in a forensic laboratory?

MR. SIMS: Yes.

MR. SCHECK: Because when you have a degraded sample like that, the dangers and the risk of cross-contamination increases?

MR. SIMS: Yes.

MR. SCHECK: Thank you. Could we have 259-B.

THE COURT: C.

MR. SCHECK: C. Thank you. C.

MR. SCHECK: Okay. Now, another consideration in the question of cross-contamination is trying to separate those samples that have high DNA content from those that have low DNA content?

MR. SIMS: That's true. That is a consideration.

MR. SCHECK: Because when one is handling samples that have a high DNA content and there's an inadvertent transfer to samples that have a low DNA content, cross-contamination can occur by accident?

MR. SIMS: Yes. That is a concern. In other words, that the high one could contaminate the low one.

MR. SCHECK: Right. And so as much as you can, you would want to, in your practice in the crime laboratory, separate out those samples that have high DNA content from low DNA content when you've handling them?

MR. SIMS: Yeah--well, especially when you're doing the DNA extraction. That's where we are most concerned with that in our laboratory.

MR. SCHECK: Well, when you're handling the samples when they're wet.

MR. SIMS: What kind of sample would that be?

MR. SCHECK: Blood swatches.

MR. SIMS: When blood swatches are wet--and now you're talking about a swatch that has a lot of DNA on it that's wet and a swatch that has a lot less DNA, and that's also wet?

MR. SCHECK: Let's make it in this hypothetical wet or somewhat dryer.

MR. SIMS: Well, I think--I think at some point, you have to realize that you're--it's--it's--it's--it's like taking universal precautions. Sort of like when a hospital looks at blood samples, they assume every sample has aids. That's what's called universal precautions. And so you have to take what I would consider universal precautions whether you've got a swatch that has high or low because you don't know. You don't know the content.

MR. SCHECK: This is the effort to separate samples that have high DNA content from low DNA content, is a precaution you try to follow in your laboratory?

MR. SIMS: Yes. But that's, particularly in our laboratory, when we're talking about DNA extraction. That's the main point there because that's when you turn this into a liquid sample.

MR. SCHECK: When you're cut--you are actually handling and examining samples, don't you try to take reasonable care to divide up those samples that have high DNA content from low DNA content?

MR. HARMON: Objection. Vague as to handling and sampling, and compound, your Honor.

THE COURT: Compound.

MR. SCHECK: No. Examine.

MR. SIMS: Well, for example, when I look at a garment that I might take a bloodstain from, that bloodstain may be a high level bloodstain. But then I would also, right next to it on the same garment, have a substrate control area that would be considered a low level. So when you're talking about examining items, I see that as different than when you're talking about extracting DNA. Those are two separate issues to me.

MR. SCHECK: When--you would agree--so examining is when you're just looking at them?

MR. SIMS: Yes.

MR. SCHECK: Then you get to the point where you might actually cut a sample?

MR. SIMS: Yes.

MR. SCHECK: Such as a glove.

MR. SIMS: Yes.

MR. SCHECK: Such as a swatch.

MR. SIMS: Yes.

MR. SCHECK: Would you not agree at the point where you cut a sample, that you should take precautions to separate items that have high DNA content and low DNA content?

MR. SIMS: Yes. At that level, I would agree with that. And what I tend to do is work on one item at a time so that they're separated in that manner.

MR. SCHECK: And as you indicated, that when you then move from the point of cutting the samples to the point of processing or analyzing them, you also want to take special concern to separate samples that have high DNA content from those that have low DNA content?

MR. SIMS: Yes.

MR. SCHECK: You're familiar with a--something called the amplitype user guide?

MR. SIMS: Yes, I am.

MR. SCHECK: What is the amplitype user kind?

MR. SIMS: The amplitype user guide is provided by the company that actually makes the PCR kits that are used in forensic science, and that user guide is usually provided to the students who take the course.

MR. SCHECK: This is like a basic fundamental text on how to use, in this instance, PCR base techniques?

MR. SIMS: Yes.

MR. SCHECK: Although the discussion that we've having about separating samples of high and low content and degradation would apply to RFLP testing as well as PCR testing?

MR. SIMS: Well, it is more of a concern in PCR testing, I would say that. But yes, it's always a concern.

MR. SCHECK: Are you saying that it's not a concern that you could get genomic DNA cross-contamination for purposes of RFLP testing?

MR. HARMON: Objection. Argumentative, misstates his testimony.

THE COURT: Sustained.

MR. SCHECK: Now, in that amplitype guide, is there not, the very beginning of it, a section indicating "special precautions"? Recall that?

MR. SIMS: Yes, I do.

MR. SCHECK: And in that "special precautions," does not the kit indicate that performing DNA extractions from samples containing--

MR. HARMON: Objection. Calls for hearsay, your Honor.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: Do you recall any specific guidance given in the amplitype user guide with respect to separating samples containing high DNA content and low DNA content when performing extractions?

MR. SIMS: Yes, I do.

MR. SCHECK: What does it say?

MR. HARMON: Objection. Calls for hearsay.

THE COURT: Sustained. Want to just add a few foundational questions here?

MR. SCHECK: Well, is this a--the precautions listed in the amplitype user guide, be ones that you would rely upon as a forensic DNA analyst?

MR. SIMS: Well, I'd be careful about saying everything that's in there, but the bulk of that material, by all means.

MR. SCHECK: Why don't we--why don't I just--

THE COURT: Why don't you show him the specific page that you're talking about.

MR. SCHECK: Yeah. I'll--we'll get it.

MR. SCHECK: Why don't you take a look at section 2.2.2 on page 2 of the guide.

MR. SIMS: Yes.

MR. SCHECK: All right. Would you rely--and I'm calling your attention to paragraph 1 and call your attention to the--I think it's just about the last sentence there that begins "perform DNA extractions from samples." is that a precaution that you would rely upon that's in the user guide?

MR. SIMS: Yes.

MR. SCHECK: All right. And that precaution states that--

MR. HARMON: Objection. Hearsay.

THE COURT: Overruled.

MR. SCHECK: --that one should perform DNA extraction from samples containing high levels of DNA, for example, whole blood, separately from samples containing a low level DNA, single hair, small bloodstains, et cetera, to minimize the potential for sample-to-sample contamination.

MR. SIMS: Yes. I agree with that.

MR. SCHECK: And you agree with that; do you not?

MR. SIMS: Yes, I do.

MR. SCHECK: And when we're talking here about extraction, we're talking about that stage in the process where you take the little cuttings and you put them into these test tubes?

MR. SIMS: Well, I think at this point, they're saying you've already got it in the test tube.

MR. SCHECK: All right. When you pour the reagents in?

MR. SIMS: Yes.

MR. SCHECK: During that period of the analysis?

MR. SIMS: Yes.

MR. SCHECK: Now--

MR. SCHECK: Could we turn to D?

MR. SCHECK: Now, you have samples from different crime scenes?

MR. SIMS: Okay.

MR. SCHECK: Would you take special care when examining the samples to try to examine them separately?

MR. SIMS: Well, I don't see how one could examine those samples how--you would have to do it separately. There's three different locations that I'm seeing. I see a little blue car and I see two little houses like monopoly.

MR. SCHECK: There are limitations to computer clip-art, Mr. Sims.

MR. SIMS: But--but there are--

MR. SCHECK: Why don't you--who don't you assume the blue car white--

MR. SIMS: Okay.

MR. SCHECK: --and assume one of those houses looks like Bundy and the other one looks like Rockingham.

MR. SIMS: Okay.

MR. SCHECK: All right? Now, wouldn't you agree that in terms of these little swatches that you get from different scenes, that just even in examining them, it would be good laboratory practice to examine them separately?

MR. SIMS: Yes. One at a time.

MR. SCHECK: And wouldn't it be good laboratory process--practice when cutting these swatches to separate the swatches that you get from different scenes?

MR. SIMS: I--I think that again goes more to the extraction perhaps. That's--that's what I did in this case as much as possible; is I kept the Bronco samples by themselves, I kept the Bundy stuff by itself, I kept the Rockingham stuff by itself. The only time I violated that was the very first set of extraction--set of extractions when there was one Bundy drop and I think one Rockingham drop. But I think--I think as long as you're doing them one at a time when you're cutting them and then putting that sample away and making sure you have a clean surface, I think that's okay.

MR. SCHECK: Right. Well, we'll get to what you do and cutting them one at a time and keeping clean surfaces. But just as a general practice, what you try to do as much as possible, even at the stage when you got the samples, was process the samples from the different scenes each separately?

MR. SIMS: Yes.

MR. SCHECK: And when samples first come into a crime laboratory and you're let's say cutting swatches, it would be good practice to make sure that you cut the swatches from one scene separately from those of another scene?

MR. SIMS: Well, again, I think as long as you work on them one at a time, that's okay. I don't think it's--it's bad practice necessarily to look at two swatches in a row as long as you clean up where you're working and you clean up your tools between each sample.

MR. SCHECK: Well, we'll talk about cleaning and changing gloves and the rest of it. But let's just talk as a general practice, you try to keep the samples from different scenes separate?

MR. SIMS: In general, yes.

MR. SCHECK: Because--now, let's assume that one set of samples from one scene are severely degraded and another set of samples from another scene are not.

MR. SIMS: Okay.

MR. SCHECK: Wouldn't it heighten the risk of cross-contamination if you sampled those swatches from different scenes in the same time and in the same location?

MR. HARMON: Objection. Insufficient basis for that question, improper hypothetical, calls for speculation, it's argumentative.

THE COURT: Overruled.

MR. SIMS: Would it heighten under that--

MR. SCHECK: Yes. Heighten the risk.

MR. SIMS: Under that hypothet--

MR. SCHECK: Under that hypothetical.

MR. SIMS: Under that hypothetical, yes.

MR. SCHECK: Your Honor, this is the point where I have to approach to clarify.

THE COURT: All right. With the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: All right. We're over at the sidebar. What are you about to go into, Mr. Scheck?

MR. SCHECK: I propose to ask a question in this form: If you had information that--one, that a suspect had indicated that one set of samples contained his blood and you were processing another set of samples whose origin was unknown, would you want to make sure that you separate it in examination, cutting of those samples?

MR. HARMON: There's no basis for that in the evidence that's been presented, your Honor.

MR. SCHECK: Your Honor, I would like to establish--

MR. HARMON: Improper hypothetical.

THE COURT: Hold on. I was asking Mr. Scheck to be quiet while I heard your comment. Mr. Harmon.

MR. HARMON: It's an improper hypothetical. There's no evidence for that.

MR. SCHECK: Your Honor, I think there is. We know from the facts already that Detective Lange and Detective Vannatter had a conversation with Mr. Simpson at 1:39 in the afternoon where Mr. Simpson told them while at Rockingham the blood drops on the--trail on the Rockingham driveway were from him. Detective Lange indicated he had conversations about the evidence in this case with Mr. Matheson and Mr. Yamauchi and Mr. Fung the next morning, that Mr. Fung was made aware of this. And so what I want to do is just ask this question in limited form that doesn't bring out the statement just as a predicate for developing when additional witnesses come in. I think we already have a good faith basis for the record. I would just limit it that way so there's no implication about a statement, just information.

MR. HARMON: The form of the question is also somewhat argumentative. I mean we have the results. If they want to concede that these things were tested properly, then maybe we can stipulate to that. But, you know, it's the form of the question, "if you had information." he didn't have any information. He didn't encounter that. You're asking him to speculate what he would have done. He wasn't in that position.

THE COURT: Mr. Scheck, I appreciate your bringing this to the Court's attention because this is obviously a touchy area because it goes to statements made--allegedly made by the Defendant to the police detectives. The problem we have is, that statement is not before the jury at this time. I--in fact, I don't know to this day what Mr. Simpson is alleged to have said to the police detectives other than what I have inadvertently come across in the news media. But--

MR. SCHECK: The issue is that I don't want to introduce it right now, but it's--what's important here for purposes of the DNA evidence--and it's a critical point--is that these police and laboratory technicians had knowledge that Mr. Simpson had said that the Rockingham drops were his, and they processed them at the same time as they did the unknown samples, creating a serious risk of cross-contamination. This is a critical point of our Defense as I'm sure everybody is well aware, one set being degraded and the other set, particularly item no. 12, which was picked up, the last series of swatches, from inside his house being far less degraded. So the point is, there's danger of cross-contamination. My formulation of this question in the hypothetical form only has to do with what good laboratory practices would be, and so I want to formulate the question in a way that is as neutral as possible in terms of drawing an implication. All I want to ask him is if he had information, he would have tried this. But I wanted to be super cautious; if you had information that one set of samples--all right--that a suspect had said one set of samples or had information that one set of samples came from a suspect and another were from an unknown origin, would you take special care to examine, process those separate. That is the question I want to ask him.

MR. HARMON: That's asked and answered. This might be--this might be okay next week when Collin Yamauchi testifies. I don't think there's a basis for asking him--

THE COURT: At this point, at this time, I'm going to sustain the objection. Okay. Off the record.

(An off the record discussion was held at the bench.)

(The following proceedings were held in open court:)

THE COURT: Mr. Scheck, you may proceed.

MR. SCHECK: Mr. Sims, if you had one set of samples, blood swatches that were collected from bloodstains that came from inside a house on a clean wood surface--

MR. SIMS: Okay.

MR. SCHECK: --and they were collected between an hour and a half to two hours before the time that you began handling the swatches, examining and handling the swatches, okay?

MR. SIMS: Okay. They were collected about two hours before--

MR. SCHECK: Before you began handling and manipulating the wet blood swatches, okay?

MR. SIMS: Back at the laboratory?

MR. SCHECK: Back at the laboratory.

MR. SIMS: Okay.

MR. SCHECK: Then you add another set of samples that had been collected seven hours before you got to the laboratory. All right?

MR. SIMS: Okay.

MR. SCHECK: That came off concrete substrates.

MR. SIMS: Okay.

MR. SCHECK: There was possibility of exposure to soil and bacteria.

MR. SIMS: Okay.

MR. SCHECK: That were packaged in plastic bags.

MR. SIMS: Okay.

MR. SCHECK: Left in those plastic bags for seven hours.

MR. SIMS: Okay.

MR. SCHECK: Would you agree that, number one, the samples that came from those plastic bags that were collected seven hours earlier, there's a good chance that they would be more degraded than the swatches that had been collected three hours earlier from inside a home?

MR. HARMON: Objection. Calls for speculation. "good chance" is somewhat vague, your Honor.

THE COURT: Sustained.

MR. SCHECK: Well, in your opinion as a criminalist, would you regard one--the set of swatches that came out--that came off the substrates, put in the plastic bags, collected seven hours earlier, would you expect those to be more degraded than the samples that had been collected only three hours before you handled them that came off a clean wooden floor?

MR. HARMON: Objection. It's incomplete about the packaging of those samples, your Honor.

MR. SCHECK: And those samples that came off the clean wooden floor had been put into plastic bags, if those were about an hour and a half, in that plastic bag for about an hour, hour and a half.

MR. SIMS: Okay. So as part of the hypothetical, the floor is very clean.

MR. SCHECK: Yes.

MR. SIMS: The sidewalk is very dirty.

MR. SCHECK: Well, I don't--let's just say dirty.

MR. SIMS: Okay. That the floor is very clean.

MR. SCHECK: Yeah.

MR. SIMS: Okay. And then the question is, would I expect the ones on the sidewalk that had been packaged to be degraded?

MR. SCHECK: The ones on the sidewalk that had been put in plastic bags, right?

MR. SIMS: Okay.

MR. SCHECK: For seven hours.

MR. SIMS: Okay.

MR. SCHECK: Before you examined them.

MR. SIMS: Okay.

MR. SCHECK: Versus the ones that came off the clean floor that had been in the plastic bag for only an hour, an hour and a half?

MR. SIMS: Okay. Yes, I think you would expect the ones from the sidewalk to be more degraded.

MR. SCHECK: Let's turn to--oh, well, before we do, and--and it would be a good precaution in the laboratory if those samples that I've described, one's in the plastic bag for seven hours off the dirtier substrate, one's in a plastic bag for an hour, hour and a half off the clean substrate, both came from different scenes, would be good laboratory practice not to examine and cut those in the same time--same time and the same place?

MR. HARMON: Objection. Same time and same place is compound. It's also vague.

MR. SCHECK: The same time.

MR. HARMON: The same time is vague.

MR. SCHECK: I'll take it one at a time.

MR. HARMON: The same time is vague.

THE COURT: Wait. You guys are talking at the same time as well. Why don't you rephrase the question. It is vague as to when you say handled. I mean, do we mean processed them all at the same time? Separately? How?

MR. SCHECK: All right. If you were to take those two sets of samples that we've discussed, all right?

MR. SIMS: Okay.

MR. SCHECK: And take them out of plastic bags--

MR. SIMS: Okay.

MR. SCHECK: --without regard to whether you handled one from one scene before or after handling one from the other, would that be a good laboratory practice that--withdrawn. If you handle them one from one scene, take them out of the plastic bags, putting them in test tubes, all right?

MR. SIMS: Yes.

MR. SCHECK: Then you took another one from another scene, took it out of the plastic bag, put it in a test tube, all right?

MR. SIMS: Okay.

MR. SCHECK: During the same period of time on the same work surface, without changing paper, without changing gloves, would that be a sound laboratory practice in your opinion?

MR. HARMON: Objection. During the same period of time is vague, your Honor.

THE COURT: Overruled. I think you understand the question.

MR. SIMS: I'm not sure I do, your Honor.

THE COURT: Well, why don't you ask for a clarification.

MR. SIMS: Can you just rephrase that one or just repeat the question?

MR. SCHECK: All right. Let's take sample no. 1 from the seven-hour scene.

MR. SIMS: Okay.

MR. SCHECK: It's in a plastic bag, swatches in a plastic bag.

MR. SIMS: Okay.

MR. SCHECK: You're on a work--you're taking these out of a plastic bag. You have a piece of paper on the table.

MR. SIMS: Okay.

MR. SCHECK: You're wearing gloves.

MR. SIMS: Okay.

MR. SCHECK: Plastic gloves. You take a test tube and you stick it into that plastic bag and get the wet swatches by manipulation into the test tube.

MR. SIMS: Okay.

MR. SCHECK: That's the process you use.

MR. SIMS: Okay.

MR. SCHECK: You take that from crime scene no. 1 that has the swatches that have been in the plastic bags for seven hours, okay?

MR. SIMS: Okay.

MR. SCHECK: Then without changing gloves, without changing the paper below, you move to the plastic bag containing the samples from the second scene.

MR. SIMS: Okay.

MR. SCHECK: Use the same method of taking the test tube, going into the plastic bag, all right?

MR. SIMS: Okay.

MR. SCHECK: Manipulating it so you get the swatch out. Then with those same gloves, right?

MR. SIMS: Okay.

MR. SCHECK: Taking the test tube and packaging it into a coin envelope.

MR. SIMS: Okay. I understand that. Umm--

MR. SCHECK: One second, please.

(Brief pause.)

MR. SCHECK: Sorry. Why don't you just--in terms of my hypothetical, why don't you just assume that you handled the swatch, swatches that were collected an hour, hour and a half before you got to the laboratory first and then the other sample second.

MR. SIMS: So you did them as two separate sets? Is that what you're saying?

MR. SCHECK: You did--plastic bag no. 1, you handled from the--that was the one that contained the swatches an hour, hour and a half old.

MR. SIMS: Okay.

MR. SCHECK: Right? Plastic bag no. 2 came from the samples that were seven hours in the plastic bag from the dirty surfaces.

MR. SIMS: Okay. So as I understand this now, somebody's taking what I would call a culture tube? Is that the right size?

MR. SCHECK: A test tube.

MR. SIMS: Test tube. They're sticking that tube into a plastic envelope to capture the swatch into that tube?

MR. SCHECK: Uh-huh. Wet swatch.

MR. SIMS: A wet swatch. I would say one should change gloves between those two sets, yes.

MR. SCHECK: Let's say you didn't change gloves.

MR. SIMS: Well, if you--I mean, the other thing about blood is, it's very visible, and one may look at the gloves and see whether or not there was any visible contamination that way.

MR. SCHECK: You didn't change gloves. Are you saying, Mr. Sims, that that's the kind of laboratory practice that you would engage in?

MR. SIMS: No.

MR. SCHECK: Now, let's talk about--let's turn to--like to go actually to I think it's F, the one that's F. Yes. Now, samples that come from a victim and samples that come from a suspect, assume they're blood swatches.

MR. SIMS: Okay.

MR. SCHECK: You should handle those separately?

MR. SIMS: Separately--

MR. HARMON: Objection. It's vague. Separately from what?

THE COURT: Sustained.

MR. SCHECK: Should you examine those separately?

MR. HARMON: Same objection, your Honor.

THE COURT: Why don't you ask--why don't you clarify that, Mr. Scheck.

MR. SCHECK: All right. Let's try this. Would you agree that items of evidence collected from suspects should be handled separately from evidence samples?

MR. SIMS: Yes.

MR. SCHECK: Because this practice guards against sample mix up and cross-transfer?

MR. SIMS: Yes.

MR. SCHECK: You have a protocol in your laboratory?

MR. SIMS: Yes, we do.

MR. SCHECK: It's a detailed protocol?

MR. SIMS: Yes, it is.

MR. SCHECK: Are you familiar with section 6.3 of your protocol?

MR. SIMS: I don't know the protocol by number, but if you read it to me, I'll let you know or you show it to me, I'll--

MR. SCHECK: All right.

(Brief pause.)

MR. SCHECK: Section 6.3 of your protocol concerns the examination of samples.

MR. SIMS: Yes, it does.

MR. SCHECK: We're just talking now about looking at them and examining them.

MR. SIMS: Yes.

MR. SCHECK: We're not talking at this stage about cutting them.

MR. SIMS: Yes.

MR. SCHECK: We're not talking at this stage about packaging and handling them.

MR. SIMS: Well, now wait. We have to back up. When we're talking about examining them, there may be some cutting. I'm sorry. I agreed with you too quickly on that one.

MR. SCHECK: Okay. It's all right.

MR. SIMS: Yes. We are talking about having the evidence out there and sampling it.

MR. SCHECK: And this section of your own protocol is something you rely on?

MR. SIMS: Yes, it is.

MR. SCHECK: Something you think is a good idea?

MR. SIMS: Yes, I do.

MR. SCHECK: And in your protocol, does it not state that in general, the examiner should examine only one item of evidence at a time.

MR. SIMS: Yes.

MR. SCHECK: Marking the evidence with the unique identifier.

MR. SIMS: Yes.

MR. SCHECK: Returning it to its container before opening another item.

MR. SIMS: Yes.

MR. SCHECK: And in particular, items of evidence collected from suspects should be examined separately from victim samples.

MR. SIMS: Yes.

MR. SCHECK: And that's a practice that your protocol indicates will guard against sample mix up and cross-transfer?

MR. SIMS: Yes.

MR. SCHECK: And you think that's an important precaution to take against cross-contamination, don't you?

MR. SIMS: Cross-contamination and sample mix up, yes.

MR. SCHECK: And mix-up of samples?

MR. SIMS: Yes.

MR. SCHECK: So in terms of this logo which we don't intend to have--clip-art's limited and it's not supposed to look like men's room and women's room, all goes. But you agree with this principal that one should separate suspect, victim samples?

MR. SIMS: Yes.

MR. SCHECK: Now--

MR. SCHECK: Let's turn to E.

MR. SCHECK: Now, wouldn't you agree that of extraordinary importance is the need to handle reference samples, be it from a suspect or victims, separately from evidence samples?

MR. HARMON: Objection. "handled" and "separately" are vague, your Honor.

THE COURT: Rephrase.

MR. SCHECK: Just in terms of--would you try to keep separate the taking of any blood from a reference sample in terms of the time and place from the examination, cutting or handling of an evidence sample?

MR. SIMS: By that, do you mean, for example, preparing a swatch of the reference stain or the reference sample?

MR. SCHECK: Yes.

MR. SIMS: That sort of thing? Yes.

MR. SCHECK: That is a cardinal rule, isn't it?

MR. SIMS: Well, I don't--I don't know if it's a cardinal rule, but it is an important concept, yes.

MR. SCHECK: That's in your protocol?

MR. SIMS: It may be. The exact wording, I'm not sure of. But again, I think it's important.

MR. SCHECK: Are you familiar--did I give you the amplitype guide?

MR. SIMS: Yes, I have it here.

MR. SCHECK: All right. Why don't you again look at section 2.2.2, "special precautions."

MR. SIMS: Okay.

MR. SCHECK: Ask you to look at sentence 1.

MR. SIMS: Okay.

MR. SCHECK: Starting with, "it is important."

MR. SIMS: Okay.

MR. SCHECK: Do you rely on that section?

MR. HARMON: Objection. It's vague. Rely on for what reason?

THE COURT: Overruled. Obviously for the application of this process.

MR. SCHECK: Let me make sure I'm pointing to the right sentence.

THE COURT: 2.2.2 on page 2.

MR. SCHECK: Yes.

MR. SIMS: Number 1? Oh, okay. (Brief pause.)

MR. SIMS: I do agree and I do practice that the DNA extraction will be separated in time from the reference samples against the evidence samples, but the PCR setup of evidence samples, it says, "should be performed at a separate time from the DNA extraction PCR setup of reference samples." I--I don't--I don't follow that. Usually what I do is, I put the evidence samples first in a set that I'm going to be doing the PCR analysis on and then I get to the evidence--I'm sorry--the reference samples last along the stream so that you don't start upstream with the reference samples. Instead, they're downstream from that process. But I do extract them separately, yes. I agree with that part of that.

MR. SCHECK: All right. Let's start with this. So it is--you would agree that it is important that "DNA extraction--"

MR. HARMON: Objection. Calls for hearsay, your Honor. He's reading.

THE COURT: Overruled.

MR. SCHECK: "DNA extraction of evidence samples be performed at a separate time from DNA extraction of reference samples"?

MR. SIMS: Yes.

MR. SCHECK: And this precaution will help prevent potential cross-contamination between evidence samples and reference samples?

MR. SIMS: I agree with that.

MR. SCHECK: Now, you're familiar with the California association of crime lab directors open proficiency tests in 1988 and `89?

MR. SIMS: I have some familiarity with them, yes.

MR. SCHECK: And you have studied the factors that led to false positives by different DNA laboratories that participated in that open proficiency test?

MR. HARMON: Objection. It's irrelevant, calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: All right. Are you aware--have you familiar--without going into the content yet, have you familiarized yourself with the circumstances surrounding false positives obtained by the Cellmark laboratory?

MR. HARMON: Objection. Irrelevant.

THE COURT: Sustained.

MR. SCHECK: All right. With respect to false positives arising from RFLP testing, when a laboratory is handling, at the same time, reference samples from a suspect and evidence samples, are you aware of false positives ever arising in that context?

MR. HARMON: Objection. Calls for hearsay. It's irrelevant.

THE COURT: Overruled.

MR. SIMS: In other words, am I aware of any documented example of that?

MR. SCHECK: Yeah.

MR. SIMS: I--when you were that specific, I couldn't recall that. I--I am aware of sample mix-ups, but I wasn't sure of the actual what got mixed up with what.

MR. SCHECK: Well, before you came in here to testify, Mr. Sims, you were watching this proceeding on television?

MR. SIMS: Some of it, yes.

MR. SCHECK: When Dr. Cotton was testifying, weren't you upstairs in the Prosecutor's office watching television in terms of her testimony?

MR. SIMS: I actually spent very little time up there watching television.

MR. SCHECK: Where did you watch it?

MR. SIMS: I watched some of it in my hotel room and I watched a little bit of it when I was upstairs. But most of the time that I'm upstairs, I'm not watching the television.

MR. SCHECK: Did you watch her testimony?

MR. SIMS: Some of it.

MR. SCHECK: Watch cross-examination?

MR. SIMS: Some of it.

MR. SCHECK: Talk about it with the Prosecutors?

MR. SIMS: A little bit.

MR. SCHECK: In your reading in terms of forensic DNA testing, have you read literature concerning false positives on the CACLD tests?

MR. HARMON: Objection. It's irrelevant, calls for hearsay, 721 of the evidence code, your Honor.

THE COURT: Sustained.

MR. SCHECK: Were the false positives in the CACLD tests a matter of concern to people in the forensic DNA community?

MR. HARMON: Objection. It's irrelevant, calls for hearsay, 721 of the evidence code, assumes facts not in evidence.

MR. SCHECK: I'm only asking if it was a matter of concern.

MR. HARMON: It assumes that--

THE COURT: Overruled.

MR. HARMON: --that he knows it.

THE COURT: Overruled.

MR. HARMON: I'm sorry.

MR. SIMS: Yes.

MR. SCHECK: You recall when those results were announced?

MR. SIMS: Yes, I do, roughly the date, the time.

MR. SCHECK: And you recall that you mentioned Dr. Blake?

MR. SIMS: Yes.

MR. SCHECK: He participated in those tests?

MR. SIMS: Yes, he did.

MR. SCHECK: He got a false positive in the first round too?

MR. SIMS: I believe it was a false positive, although it may have been a false negative. I'm not sure, but he did have a problem on one sample I recall.

MR. SCHECK: And he was using PCR?

MR. SIMS: That's correct.

MR. SCHECK: And Cellmark was using RFLP?

MR. SIMS: Cellmark, my understanding, was using RFLP. Dr. Blake was using PCR DQ-Alpha in the--a different dot blot format than is used now.

MR. SCHECK: Did you hear Dr. Cotton's testimony with respect to how the false positives arose in the CACLD tests?

MR. SIMS: You know, I think I missed that part.

MR. SCHECK: You did?

MR. SIMS: I--I don't recall hearing all that.

MR. SCHECK: In your review of the literature with respect to the CACLD open proficiency tests, did you become aware of a false positive arising when samples, evidence samples were handled--

MR. HARMON: Objection. Improper foundation, 721, it's hearsay.

THE COURT: Sustained.

MR. SCHECK: With respect to handling reference samples the same time in the same area as evidence samples, all right?

MR. SIMS: Okay.

MR. SCHECK: Isn't that a particularly dangerous practice because the reference sample has a high concentration of DNA in the whole blood?

MR. HARMON: Objection. It's compound, same time and area, it's vague, same time and area, particularly dangerous practices.

MR. SCHECK: I think he's already conceded that.

THE COURT: All right. Overruled.

MR. HARMON: It's also argumentative.

THE COURT: Overruled.

MR. SIMS: Now, again, could you--when you describe the same--is it what, the same time and the same place? Is that what you're saying?

MR. SCHECK: Yeah. You discussed before--remember you saying pouring out a reference sample and making a card in the same area--

MR. SIMS: Yes.

MR. SCHECK: --that one is then handling reference samples.

MR. SIMS: You mean that one is then handling evidence samples?

MR. SCHECK: That's right. Evidence samples.

MR. SIMS: Yes. I think that would not be a good idea.

MR. SCHECK: And one of the reasons it's not a good idea is that the reference sample contains a high concentration of DNA in the whole blood?

MR. SIMS: That's correct.

MR. SCHECK: And a very small amount of blood, talking microliter--

MR. SIMS: Yes.

MR. SCHECK: --that is transferred to an evidence specimen can cause a cross-contamination?

MR. SIMS: That's true.

MR. SCHECK: A microliter of blood contains how many nanograms high molecular weight DNA would you estimate?

MR. SIMS: Yes. That would be about 20 nanograms, something like that, per microliter because it's about 20 microliter--or I'm sorry--about 20 micrograms per mil. So you're taking it down--that sounds right. About 20 nanograms per microliter whole blood.

MR. SCHECK: Could be more?

MR. SIMS: It could be more. Some people have more, some people have less.

MR. SCHECK: And did you hear Dr. Cotton's testimony with respect to how much DNA was in the evidence lane of item 52 in her RFLP test?

MR. HARMON: Objection. Calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: All right. Are you aware of how much DNA was in the reference lane for 52 in the Cellmark RFLP test?

MR. HARMON: Objection. Still calls for hearsay, no foundation, calls for speculation.

THE COURT: It's also irrelevant. Sustained.

MR. SCHECK: Irrelevant?

THE COURT: It's already in the record, counsel.

MR. SCHECK: Well--that's the point.

THE COURT: If you want to pose it as a hypothetical of a particular nanogram--

MR. SCHECK: Okay. Okay.

MR. SCHECK: If there were cross-contam--

MR. SCHECK: Thank you. It's a long day.

MR. SCHECK: If there's cross-contamination of microliter particle blood to a swatch, that could cause as much as 20 nanograms, 25 nanograms high molecular weight DNA to be on a swatch?

MR. SIMS: Yes.

MR. SCHECK: And you can get RFLP results from as little as 25 nanograms?

MR. SIMS: On a good day, yes.

MR. SCHECK: Now--and of course, it would--you can get PCR results on how much DNA?

MR. SIMS: In our laboratory, the limit we would test would be down in the--what we would call 300 picograms which is 0.3 nanograms.

MR. SCHECK: Let's talk small here. A nanogram is a billionth of a gram?

MR. SIMS: That's correct.

MR. SCHECK: So what's a picogram?

MR. SIMS: That's a trillionth of a gram.

MR. SCHECK: Can you see it with the naked eye?

MR. SIMS: You wouldn't see the DNA, no.

MR. SCHECK: Could you see the amount of blood that it would take to--for--from which one could get--what did you say? How many picograms could you do?

MR. SIMS: 300 picograms.

MR. SCHECK: 300 picograms?

MR. SIMS: Well, I think, make it a little clearer, from a bloodstain that's about a millimeter by a millimeter, you could get about two nanograms. So that's 2,000 picograms. So I think that gives you an idea of how small we're talking about. It's--

MR. SCHECK: Well, is that something that you would suspect--

THE COURT: Excuse me. Mr. Scheck, I don't think Mr. Sims was finished answering.

MR. SCHECK: Oh, were you finished? I'm sorry.

MR. SIMS: I guess I'm done.

MR. SCHECK: Oh, you're finished?

MR. SIMS: I lost the train anyway, so go ahead.

MR. SCHECK: Well, let's get back on the train. The--the size of--you said 300 picograms?

MR. SIMS: Yes.

MR. SCHECK: The size of a particle of blood that could create--from which you could extract 300 picograms of DNA, would that be visible to the naked eye?

MR. SIMS: I think it would be visible, but it would be a speck. I mean, it's--it's--it's very small.

MR. SCHECK: Now, and the amount of speck of blood that would give you two nanograms, it's pretty small too?

MR. SIMS: Well, now, again, that's about a millimeter by a millimeter, and that's pretty small, but it's very--it's visible, very visible.

MR. SCHECK: Now--

MR. SCHECK: Let's see. I guess it's--let's turn to G.

MR. SCHECK: Another precaution that one takes to prevent cross-contamination is not to do PCR processing on multiple samples at the same time?

MR. HARMON: Objection. PCR processing is vague, your Honor.

THE COURT: Sustained.

MR. SCHECK: All right. In the PCR--let's talk about the PCR process a little bit.

MR. SIMS: Okay.

MR. SCHECK: One stage, you would literally cut the sample, correct?

MR. SIMS: Yes.

MR. SCHECK: What's the next stage? Would you call that part of the extraction process?

MR. SIMS: No. That would be part of the sampling.

MR. SCHECK: Sampling process. What's the next process?

MR. SIMS: The next process, once you've got it in the tube, is to go through the actual extraction of the DNA.

MR. SCHECK: All right. And you do that how?

MR. SIMS: Well, in our laboratory, we do that by a procedure that involves placing the--or adding to that swatch, that stain a solution that has a soap, a detergent actually in it and an enzyme that chews up the protein, and that--that releases the DNA, and then that excess protein is removed by organic reagents, and then we do a purification step through a ultracentrifugation through a membrane.

MR. SCHECK: Just visualizing it then, you take a piece of that extract, you put it in one of these little microfuge tubes?

MR. SIMS: You take a piece of that swatch.

MR. SCHECK: Swatch.

MR. SIMS: Yes. And you put that--

MR. SCHECK: Put it in one of the microfuge tubes.

MR. SIMS: That's the first--

MR. SCHECK: And you add all the things you were just talking about in that tube?

MR. SIMS: That's correct.

MR. SCHECK: All right. So you create a whole series of test tubes with these swatches?

MR. SIMS: That's correct.

MR. SCHECK: And some of these tubes are the ones that you were talking about before that you were calling reagent blanks?

MR. SIMS: Yes. You would include reagent blanks in there.

MR. SCHECK: And that would be just the tube that had just the ingredients, but no swatches?

MR. SIMS: That's correct.

MR. SCHECK: And when you're talking about some of those substrate controls, those would be those little tubes, but they would be the--the substrate control swatches, not the evidence specimen swatches?

MR. SIMS: That's correct. They would be in there too.

MR. SCHECK: All right. And you would also--you mentioned something, what you called a quality control, correct?

MR. SIMS: Yes. In our laboratory, we run that.

MR. SCHECK: And that's another swatch?

MR. SIMS: Yes.

MR. SCHECK: And you cut that swatch up and you put it in another one of those little tubes?

MR. SIMS: Yes.

MR. SCHECK: And then after you do what you call the extraction process, putting the swatches in the tubes and adding the ingredients, what's the next stage?

MR. SIMS: Well, then after you've got that process, you end up with a solution that has just the DNA. And so then the next stage would be the evaluation of the DNA as far as quality and quantity.

MR. SCHECK: That's called the slot blot?

MR. SIMS: Yes. For the quantity, that's the slot blot.

MR. SCHECK: All right. Quantity is that--what we call a swat blot analysis?

MR. SIMS: Slot bot.

MR. SCHECK: Slot blot. Did I say swat?

MR. SIMS: Yes.

MR. SCHECK: Slot blot analysis. You do that for all the tubes?

MR. SIMS: If--if you go that route. Sometimes we use a yield gel for our quantitation.

MR. SCHECK: All right. Or sometimes we've have had a discussion of something called a yield gel, right?

MR. SIMS: Yes.

MR. SCHECK: And that's a method by which you get an assessment of the total amount of DNA in the sample?

MR. SIMS: That's correct. And--and also the quality of the DNA, whether it's degraded or not.

MR. SCHECK: All right. And just so we understand what a yield gel, yield gel tells you the total amount of DNA, but it doesn't tell you whether that DNA is bacterial or human?

MR. SIMS: That's correct, unless you do another procedure where you blot that gel and test it.

MR. SCHECK: All right. And another procedure one can perform after the yield gel is a--what you call a southern transfer?

MR. SIMS: That's correct.

MR. SCHECK: And by--that's literally one of those like the RFLP gels or those little agarose--it's a little agarose gel?

MR. SIMS: Yes.

MR. SCHECK: And you get little bands just like we saw in the RFLP?

MR. SIMS: Yes.

MR. SCHECK: And those little bands, depending on how intense they are, give you some understanding of how much human DNA as opposed to bacterial DNA you have?

MR. SIMS: Yes.

MR. SCHECK: All right. Now, if you're doing a slot blot and you're doing 20--and you try to--withdrawn. Each stage of this procedure, whatever you're doing, you're going to do to all those different tubes?

MR. SIMS: Yes.

MR. SCHECK: After you do the slot blot or the yield gel or the southern transfer to that stage, what's the next stage?

MR. SIMS: Well, then you would move into the typing stage, and that would be, for example, the RFLP setup, which is the restriction, or if you did PCR, that would be the amplification of the DNA.

MR. SCHECK: All right. And if it were PCR, the amplification of DNA, you take those test tubes and you stick it into that thermocycler machine?

MR. SIMS: Thermocycler, yes.

MR. SCHECK: And that's what amplifies up--what they call the molecular Xeroxing of the DNA?

MR. SIMS: That's correct.

MR. SCHECK: All right. And if you were--and if you were doing "x" number of tubes to the extraction, the slot blot--then the next thing when you did the amplification, you would take it and do it with the same number of tubes, right?

MR. SIMS: Yes. I mean, assuming you're going to do that with all the tubes, right. I mean, in other words, you're treating them as a group, yes.

MR. SCHECK: And when you amplify them up, sometimes that's referred to sometimes as amplification run?

MR. SIMS: Yes.

MR. SCHECK: Now, in terms of this process, is it a good precaution to limit the quantity of samples you do in a single run to a manageable number?

MR. HARMON: Objection, vague, "good precaution."

THE COURT: Sustained.

MR. SCHECK: All right. How many of these samples did you do at one time, the most, in this case?

MR. SIMS: I have that information if I could have one second to look it up.

THE COURT: And, Mr. Scheck, we'll be taking a break at 2:30.

MR. SCHECK: Thank you.

(Brief pause.)

MR. SIMS: The--the greatest number of samples that I analyzed at one time--and this would include the stains and the substrate controls plus a QC sample and an extraction blank--these were all from the Bronco, and I believe the number is 21.

MR. SCHECK: When was that?

MR. SIMS: That--I can tell you I think if you look on page 34 of my notes. Yes. That was on September 21st, 1994.

MR. SCHECK: What page is that?

MR. SIMS: Page 34.

(Brief pause.)

MR. SCHECK: And you're familiar with the amplitype user guide recommendation in terms of samples?

MR. SIMS: Yes. I don't know the exact number in there, but I do think they mention a number.

MR. SCHECK: 15?

MR. SIMS: 15 sounds close to the right--but you have to recall that when you do this kind of test, you're really limited to the amplification of about 16 samples. Actually not the amplification, but the typing, you're limited to about 16 at a time. So that might be the number that they're discussing, because you would have to include a positive and negative control.

MR. SCHECK: Well, including those.

MR. SIMS: Well, yes. I--15 sounds funny to me, but it might be correct.

MR. HARMON: Can we get a page number, section number?

MR. SCHECK: Yeah. I'll get it.

THE COURT: Mr. Sims, can you tell us, what page?

MR. SCHECK: Page 4, no. 14.

MR. SIMS: Is that--oh, okay. "limit the--" should I--

THE COURT: Hold on.

MR. SCHECK: Yeah. Read it to yourself. See if you--

THE COURT: See if that refreshes your recollection.

MR. SCHECK: Does that refresh your recollection?

MR. SIMS: Yes, it does.

MR. SCHECK: All right. The number's 15?

MR. SIMS: Yes. It says approximately 15.

MR. SCHECK: Now, would you agree that when performing all the operations that we talked about in terms of processing samples, it's important not to rush?

MR. SIMS: I agree with that.

MR. SCHECK: These are delicate procedures.

MR. SIMS: Yes.

MR. SCHECK: That the opening of a tube, popping of the tube and the creation of an aerosol has been known to cause cross-contamination in this process?

MR. HARMON: Objection. It's argumentative, no foundation.

THE COURT: Sustained.

MR. SCHECK: Do you know if the popping open of the tube can cause an aerosol which creates cross-contamination in this process?

MR. HARMON: Objection. "popping" is vague.

THE COURT: Overruled.

MR. SIMS: This would be a tube of DNA?

MR. SCHECK: Yeah.

MR. SIMS: Yes, I'm aware of that, and that's why we always spin our tubes down, so that won't create that aerosol problem. So we always spin a tube down before we pop it open.

MR. SCHECK: You have to be careful of exactly how you touch the tops of these tubes?

MR. SIMS: Well, I am--I am careful about that, yes.

MR. SCHECK: One has to be. An analyst has to be.

MR. SIMS: I think it's a good idea to be, yes.

MR. SCHECK: Because just the touching of the top of these tubes and then the touching of the next one can cause that kind of--can cause cross-contamination?

MR. SIMS: Well, not so much from the outside of the tube. I mean, it's not that there's a problem with it on the outside. As long as you spin that down, that's the main thing, that you don't have any liquid up near the top of the tube. I think that's what you mean.

MR. SCHECK: Now--

MR. SCHECK: Let's go to H.

MR. SIMS: Okay.

MR. SCHECK: Your Honor, actually, looking at h and looking at the clock, before I go into H, this might be a good time to take a break.

THE COURT: Okay. Ladies and gentlemen, we are going to take our break at this point. Please remember all my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you. Mr. Sims, you can step down, and we'll 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. Let's have the jurors, 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. Mr. Sims. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Mr. Scheck, you may continue with your cross-examination.

MR. SCHECK: Thank you, your Honor.

MR. SCHECK: Mr. Sims, at the break you were kind enough to review your notes with me concerning those--the 21 samples. Do you recall that?

MR. SIMS: Yes.

MR. SCHECK: All right. And you indicated that the maximum number of samples that you processed from the initial cutting of the swatches to the reporting of results in one run was 21 samples, correct?

MR. SIMS: Yes, and that would include the quality control sample, the extraction blank and then substrate controls intervening the stains.

MR. SCHECK: Right. Now, at the break you and I reviewed your notes as to how long--how long it took you to do that procedure with the 21 samples from beginning to end?

MR. SIMS: Yes.

MR. SCHECK: And umm, I think you began that on the 8th of September?

MR. SIMS: Yes.

MR. SCHECK: Half day?

MR. SIMS: Yes, that is what we figured.

MR. SCHECK: And then September 9th you said it took you all day?

MR. SIMS: Yes.

MR. SCHECK: And then September 14th, another half day?

MR. SIMS: Yes.

MR. SCHECK: And September 15th, at least a half day, maybe three-quarters of a day?

MR. SIMS: Something like that, yes.

MR. SCHECK: Then September 20th a half day?

MR. SIMS: Yes.

MR. SCHECK: September 21st, a day?

MR. SIMS: Yes.

MR. SCHECK: Altogether, between yourself and Miss Montgomery, who participated in the process, how many days did it take you to process those samples from beginning to end?

MR. SIMS: From the point of--of sampling to having a typing result on DQ-Alpha?

MR. SCHECK: Yeah.

MR. SIMS: That was about 7 working days.

MR. SCHECK: 7 working days?

MR. SIMS: Approximately.

MR. SCHECK: Can you imagine being able to process those samples, 21 samples from beginning to end, in one day?

MR. HARMON: Objection, calls for speculation, imagination.

THE COURT: Sustained. Sustained.

MR. HARMON: Thank you.

MR. SCHECK: Now, let's turn to--what is this?

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

MR. SCHECK: Umm--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Now, the--there are other kinds of precautions that one takes in terms of processing samples for purposes of forensic DNA typing, aside from the ones we've previously reviewed, in terms of which kind of samples one would handle at different times and different places?

MR. SIMS: Yes.

MR. SCHECK: All right. Now, let's start first with aerosols.

MR. SIMS: Okay.

MR. SCHECK: Now, one kind of aerosol we have already discussed is the kind of spray that can occur when one opens up a tube?

MR. SIMS: Yes. If one has not spun it down, that is a concern because you can get liquid accumulating under the top of the cap.

MR. SCHECK: Uh-huh. And this would apply also to one of these lavender-topped tubes that contains reference samples?

MR. SIMS: Well, they are under vacuum, so yes, that is a concern when you open one of those for the first time.

MR. SCHECK: And when you open one of those for the first time, one has to be quite careful about the aerosol of whole blood from the reference tube?

MR. SIMS: Yes.

MR. SCHECK: And in pouring that out, let's say, onto one of these paper cards, one has to take great care?

MR. SIMS: Well, one has to be careful about what else is in the laboratory, yes.

MR. SCHECK: Now, aside from aerosols from liquids, can one have aerosols from dried biological particles?

MR. SIMS: I don't know if they are possibly called aerosols, but you can have, for example, powdered blood, something like that. You have to be concerned about that.

MR. SCHECK: Powdered blood would be small particles of dried blood?

MR. SIMS: Yes.

MR. SCHECK: Now, if one were to take a test-tube that contained blood swatches that had dried on the inside of the test-tube--

MR. SIMS: Okay.

MR. SCHECK: --and then one takes a pipette, holding the test-tube up and scrapes the bloodstains out of the test-tube with the pipette--

THE COURT: Swatches?

MR. SCHECK: I'm sorry?

THE COURT: The swatches.

MR. SCHECK: Swatches?

MR. SIMS: Okay.

MR. SCHECK: Out of the pipette?

MR. SIMS: Okay.

MR. SCHECK: Are you with me?

MR. SIMS: Yes.

MR. SCHECK: Could that not cause an aerosol of powdered blood to fall on the surface over which the test-tube was held?

MR. SIMS: Well, in my experience, with that kind of a sample you usually see some flakes. It is not as fine a powder but you see more of like a flake, flaky effect.

MR. SCHECK: You could see a flake, but in terms of the dried swatch, could be an aerosol?

MR. SIMS: Again, I'm not sure that is the right term, but if you are talking about airborne particles, yes.

MR. SCHECK: Airborne particles?

MR. SIMS: Yes.

MR. SCHECK: And the pipette itself is a flexible instrument?

MR. SIMS: Now by pipette do you mean one of those that has a disposable tip on it or do you mean like a glass--can you--

MR. SCHECK: Glass.

MR. SIMS: Yes. Well, it is not very flexible; it is glass.

MR. SCHECK: Well, one of those thin plastic ones?

MR. SIMS: Oh, okay, yes, those are flexible.

MR. SCHECK: Right, and he can flick particles?

MR. SIMS: Yes, yes.

MR. SCHECK: Especially when you are pulling out of a tube?

MR. SIMS: Yes.

MR. SCHECK: So that is another kind of aerosol if--using that definition?

MR. SIMS: Yes, yes.

MR. SCHECK: And these are particles of blood?

MR. SIMS: Yes.

MR. SCHECK: From which nanograms of DNA can be extracted?

MR. SIMS: Well, if these are real small specks, I don't think you could get nanograms.

MR. SCHECK: Well--

MR. SIMS: I mean if you--

MR. SCHECK: Again how many?

MR. HARMON: Objection, your Honor, he cut off his answer.

THE COURT: Sustained.

MR. SCHECK: I'm sorry. Did you finish, Mr. Sims?

MR. SIMS: I was going to say if you had a large flake, then that would be nanogram quantities, but not the kind of minute specks that I think you are talking about. Those are not nanogram quantities usually.

MR. SCHECK: Well, let's go back to our discussion of specks.

MR. SIMS: Okay.

MR. SCHECK: All right.

MR. SIMS: Yes.

MR. SCHECK: How small a particle can one get to derive two nanograms of DNA?

MR. SIMS: Well, from that, if it was solid blood, it would be a very small flake, something like that.

MR. SCHECK: Now, let's turn to paper.

MR. SIMS: Okay.

MR. SCHECK: When examining biological specimens, is it not an important precaution, to change paper just in examining each item?

MR. SIMS: I think that is an important precaution, yes.

MR. SCHECK: So just so we know what we are talking about, let's say you were examining a blood swatch on a white piece of--what do they call it in labs? Butcher paper?

MR. SIMS: Yes.

MR. SCHECK: After examining that swatch it would be important to remove the paper from which the swatch came before then examining another swatch on that paper?

MR. SIMS: Yes. In other words, you wouldn't want to put two swatches on the same piece of paper. I would agree with that.

MR. SCHECK: All right. And in terms of--let's go back to our situation with the test-tube being with the dried swatches being scraped out with the pipette.

MR. SIMS: Okay.

MR. SCHECK: And paper below the test-tube.

MR. SIMS: Okay.

MR. SCHECK: Would it not be an important precaution against cross-contamination to change the paper every time you removed a set of swatches?

MR. SIMS: I'm having a little trouble conceptualizing what is that swatch then being directed into? I need to get clarification on that.

MR. SCHECK: All right. There is paper--butcher paper covering the table.

MR. SIMS: Okay.

MR. SCHECK: Section of a table.

MR. SIMS: Okay.

MR. SCHECK: And then on top of that butcher paper is a rectangular bindle.

MR. SIMS: Okay.

MR. SCHECK: You saw bindles in this case, did you not?

MR. SIMS: I did.

MR. SCHECK: Bindles from the Los Angeles Police Department?

MR. SIMS: Yes.

MR. SCHECK: Bindles that contained swatches?

MR. SIMS: Yes.

MR. SCHECK: I ask you to assume that the bindle is on top of the butcher paper.

MR. SIMS: Okay.

MR. SCHECK: And that the test-tube with the dried swatches is being--the swatch is being scraped out of that test-tube with the pipette aiming for the bindle surrounded by the paper.

MR. SIMS: Okay.

MR. SCHECK: Would it not be sound fundamental laboratory practice to change the paper underlying the bindle every time you moved to a new item?

MR. SIMS: I think I would do that. I don't know if it is absolutely mandatory to do that, because the bindle does act like a new piece of paper if it is big enough, but I think it would be a good idea to put a clean piece of paper underneath each bindle, yes.

MR. SCHECK: Well, the particles or the aerosol may not hit the bindle.

MR. SIMS: That's correct.

MR. SCHECK: And to protect against cross-contamination from those particles, it would be sound practice to change the paper?

MR. HARMON: Objection, asked and answered.

THE COURT: Overruled.

MR. SIMS: Well, I would--I think it would be a good idea to either change the paper or to put like a wipe or something, some kind of tissue over that paper so that you covered that area, yes.

MR. SCHECK: Instruments. Withdrawn. Before I move from--now, in your laboratory is it not part of your protocol that not only--that the paper underlying an item that you just examined, right, should be changed every time you examine another item of evidence?

MR. SIMS: Yes, I would do that.

MR. SCHECK: Isn't that part of your protocol?

MR. SIMS: Yes.

MR. SCHECK: And when you are cutting or sampling an item you would change the paper for each different item?

MR. SIMS: Yes, yes.

MR. SCHECK: That would apply to a blood swatch?

MR. SIMS: Yes.

MR. SCHECK: That would apply to cuttings from a glove?

MR. SIMS: Well, now between each cutting? Is that what you are saying?

MR. SCHECK: (Nods head up and down.)

MR. SIMS: I believe that is what I did in this particular case, yes.

MR. SCHECK: Now, instruments. There are various kind of instruments that are used to manipulate biological evidence in a crime lab?

MR. SIMS: Yes.

MR. SCHECK: Tweezers?

MR. SIMS: Yes or forceps is what we call them in the scientific world.

MR. SCHECK: Forceps?

MR. SIMS: Yes.

MR. SCHECK: And is it important to make sure that you clean all instruments that are used in manipulating biological specimens?

MR. SIMS: Yes.

MR. SCHECK: Gloves. Is it part of your protocol to change gloves every time you handle a different item of biological evidence?

MR. SIMS: I don't believe I change my gloves after every item. Umm, what I do sometimes would be usually to wash my gloves, and certainly if I had any indication at all that I may have something on my gloves, I would discard them right away and after, for example, I have been working around the laboratory and handling doors and things like that, I would change my gloves also, but I don't believe I would change my gloves necessarily between each separate item.

MR. SCHECK: Did you change your gloves between each swatch that you handled in this case?

MR. SIMS: I don't believe so. No, I don't think so.

MR. SCHECK: Would you agree that not changing gloves--well, let's start this way: In handling a wet swatch would you change your gloves between handling each swatch?

MR. HARMON: Objection. "handling" is vague, your Honor.

THE COURT: Rephrase.

MR. SCHECK: All right.

THE COURT: What part of the process are we talking about?

MR. SCHECK: In removing a swatch, wet swatch from a plastic bag, would it be sound practice to change gloves between handling each set of wet swatches?

MR. HARMON: Objection. "removing" is vague, your Honor.

THE COURT: Overruled.

MR. SIMS: Well, I think if you mean by the scenario we talked about earlier where you are sticking the tube up in there--

MR. SCHECK: Yeah.

MR. SIMS: --I think if there was any danger that you would have blood getting onto that tube and then you touched that tube, for example, that would be a good idea to change your gloves, yes.

MR. SCHECK: Uh-huh. And in the process we talked about where you are scraping the swatches out of the test-tubes onto the bindle and paper, between each set of evidence items would you change your gloves?

MR. SIMS: Well, now there--as you are explaining it, you are sort of--you know, you are creating a situation where it is coming down onto your gloves. I'm not sure that the criminalist might have the--the material out in front of him or her so that they are really not having the particle come down onto the gloves. Do you understand what I'm saying?

MR. SCHECK: Well, if--are you--would you, as a precautionary practice, describing--looking at the process we are talking about, scraping the swatches out of the tube--

MR. SIMS: Okay.

MR. SCHECK: --dried swatches out of the tube, would you change your gloves between handling each of those items?

MR. SIMS: No, I don't--I don't think so, because I think one could reach into that tube and dislodge that sample in such a way that then one wouldn't get powder onto the gloves. I don't--I don't know that I have ever done that procedure, so it is hard for me to evaluate it on my own experience, but I think at least one might wash one's gloves after each item. That would probably be a good idea.

MR. SCHECK: So your testimony then is you would either change your gloves or wash your gloves between each of these items?

MR. SIMS: I think that would be a good idea, but again, it depends on how exactly that manipulation is performed.

MR. SCHECK: Maybe I asked you this question--let's make sure I asked you this question: Did you either change your gloves or wash your gloves between handling each swatch in this case?

MR. HARMON: Objection, compound.

THE COURT: Sustained.

MR. SCHECK: All right. You testified a second ago that you didn't necessarily change your gloves between each item?

MR. SIMS: That's correct.

MR. SCHECK: All right. Would you, between handling each of the swatch items in this case, have either changed your gloves or washed your gloves?

MR. SIMS: Yes, I believe that is correct.

MR. SCHECK: All right. So you were either using a new set of gloves when you handled each separate item or you were using a set of gloves that you had washed?

MR. SIMS: Yes. I was trying to save the taxpayers a little money by washing them.

MR. SCHECK: Okay.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Now, would you agree that with respect to--well, actually--can we move to I? In viewing each of these different factors in terms of cross-contamination, okay--

MR. SIMS: Okay.

MR. SCHECK: --starting to the right hand of that white line, right?

MR. SIMS: Okay.

MR. SCHECK: --the first one we were talking about, degraded samples.

MR. SIMS: Okay.

MR. SCHECK: Right. And we agreed that in handling degraded samples, that is, the fact that samples are degraded creates a risk of cross-contamination in and of itself?

MR. SIMS: Yes. There is greater risk with those samples.

MR. SCHECK: And handling a reference sample, I am now looking at the test-tube plus one, all right?

MR. SIMS: Okay.

MR. SCHECK: --reference sample in the same area during the same period, either by pouring off sample from the--popping up the top of the tube, pouring it onto a card and in the same area during the same period, one is handling evidence samples, that kind of situation can increase of risk of cross-contamination?

MR. HARMON: Objection. "period" is vague, your Honor.

THE COURT: Overruled.

MR. SIMS: Yes.

MR. SCHECK: And handling samples from a suspect and a victim at the same time can create a risk of cross-contamination of sample?

MR. SIMS: Can we clarify a little bit about suspect and victim? I think we had a had a little--

MR. SCHECK: You recall that discussion that is represented by that logo, without reviewing it all?

MR. SIMS: Yes, I think we talked about that.

MR. SCHECK: And then we talked about samples represented by that scale of samples with high DNA concentration and low DNA concentration?

MR. SIMS: Yes.

MR. SCHECK: And then we talked about samples from different crime scenes?

MR. SIMS: Yes.

MR. SCHECK: And we talked about handling many samples at the same time?

MR. SIMS: Yes.

MR. SCHECK: Now, with respect to all those different contamination factors to the right of the line, those represent in a sense situations that can raise the level of risk in terms of making an inadvertent transfer of cross-contamination?

MR. SIMS: Yes.

MR. SCHECK: Now, looking to the factors on the left-hand side--

MR. SIMS: Okay.

MR. SCHECK: --if you combine the creation of an aerosol--

THE COURT: Excuse me, counsel. This witness has never adopted your characterization of aerosol. Airborne particles perhaps; not aerosol.

MR. SCHECK: Thank you.

MR. SCHECK: Airborne articles represented by the clip art of fireworks?

MR. SIMS: I like that.

MR. SCHECK: Thank you. All right. Talking about airborne particles, all right?

MR. SIMS: Okay.

MR. SCHECK: Combining that with any of these other situations to the right of the line, that is a--sort of a mechanism of transfer that would increase the risk of cross-contamination?

MR. SIMS: Yes.

MR. SCHECK: And the paper, you recall our discussion about not changing paper?

MR. SIMS: Yes.

MR. SCHECK: If you combine not changing paper with each of those situations, that is a mechanism of transfer that can increase the risk of cross-contamination?

MR. SIMS: Yes.

MR. SCHECK: And with respect to the bunsen burner representing the cleaning of instruments, if one does not adequately clean instruments, that can be a mechanism of transfer that facilitates cross-contamination, raises the level of risk in the other situations to the right of that white line?

MR. SIMS: Yes.

MR. SCHECK: And with respect to gloves, gloves, either not changing gloves or washing gloves--

MR. SIMS: Right.

MR. SCHECK: --okay, between samples, combined with any of those other factors to the right of the line, can become a mechanism of transfer for cross-contamination?

MR. SIMS: Yes.

MR. SCHECK: Thank you.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Let's turn to note taking.

MR. SIMS: Okay.

MR. SCHECK: Your protocol has a section dealing with note taking?

MR. SIMS: Yes.

MR. SCHECK: Are you familiar with it?

MR. SIMS: Yes, I am.

MR. SCHECK: Do you rely on it?

MR. SIMS: Yes, I do.

MR. SCHECK: Good. That saves me some time. Would you agree, and I'm now referring to section 7.3 of your protocol, that the functions of note taking are: "to support the conclusions in the laboratory report, to permit internal review of the work product, to allow reevaluation of the data by outside scientific observers, and to provide a foundation for the introduction of work product into Court"?

MR. SIMS: Yes.

MR. SCHECK: Do you agree that: "notes are to be made at the time the work is done and to accurately reflect what was done"?

MR. SIMS: Yes.

MR. SCHECK: So the way that you filled out notes in this case, is that you would perform a procedure and then after performing the procedure you would write down what you did?

MR. SIMS: Yes.

MR. SCHECK: And write that down in detail?

MR. SIMS: Yes.

MR. SCHECK: Including, for example, changing or washing gloves?

MR. SIMS: Yes. In some instances I did that early on, and then as things became more routine, I just kind of knew that that was part of the routine.

MR. SCHECK: Would you agree that for case work analytical notes should be recorded on DNA case note forms or the appropriate run sheet or checklist and each page should be numbered?

MR. SIMS: Yes.

MR. SCHECK: Dated?

MR. SIMS: Yes.

MR. SCHECK: And initialed by the analyst?

MR. SIMS: Yes.

MR. SCHECK: And handwritten notes should be made in ink?

MR. SIMS: Yes.

MR. SCHECK: You have been working in criminalistic labs for how long?

MR. SIMS: Almost--well, 19 years.

MR. SCHECK: All right. When you make your initials on various pieces of packaging, you do them in ink?

MR. SIMS: Yes. It would be weird that I would ever have a pencil around in my lab.

MR. SCHECK: And corrections--

MR. SIMS: Yes.

MR. SCHECK: --should be made by lining through the original so the original text is still visible?

MR. SIMS: Yes.

MR. SCHECK: And initialing the correction?

MR. SIMS: Yes.

MR. SCHECK: And that is a precaution that criminalists take to ensure chain of custody?

MR. SIMS: Yes.

MR. HARMON: Objection. That is argumentative and it is also irrelevant, beyond the scope.

THE COURT: Overruled.

MR. SCHECK: And do you rely on the section of your protocol entitled "documentation," section 3.3?

MR. SIMS: Yes, I do.

MR. SCHECK: Would you agree that note keeping is defined as documentation of work is performed?

MR. SIMS: Yes.

MR. SCHECK: As "performed" means both that the record is made at the time the work is done?

MR. SIMS: Yes.

MR. SCHECK: And what is recorded is what is actually done?

MR. SIMS: Yes.

MR. SCHECK: Now, you reviewed bindles from the Los Angeles Police Department in this case?

MR. SIMS: Yes.

MR. SCHECK: Bindles that contain swatches?

MR. SIMS: Yes.

MR. SCHECK: And the initials on those bindles were in pencil?

MR. SIMS: I think that most of the D.F. Ones were in pencil, as I recall.

MR. SCHECK: And those bindles didn't have June dates.

MR. SIMS: I think a couple of them did, but I don't--I certainly--you asked me earlier if I saw any with the June dates, and I don't think I had any with the June dates on them, if is that your--

MR. SCHECK: Did you see one bindle with the initials "A.M." for Andrea Mazzola on any of the swatches you handled?

MR. SIMS: No. I don't recall seeing "A.M." on any of those bindles.

MR. SCHECK: Now, you have a manual for your laboratory?

MR. SIMS: Yes.

MR. SCHECK: And as we agreed before, it is detailed?

MR. SIMS: Yes.

MR. SCHECK: Everyone in the laboratory is familiar with that manual?

MR. SIMS: Yes, they should be.

MR. SCHECK: And the provisions of that manual are not just guidelines that analysts are free to ignore if they feel they want to--

MR. SIMS: That's correct, they cannot ignore those.

MR. SCHECK: And would you agree, as an expert in crime lab procedure, that being careful and paying attention to detail in the handling and the documentation of samples is very important?

MR. SIMS: Yes.

MR. SCHECK: And that being sloppy about the handling of biological samples with respect to DNA testing, umm, is something that should be avoided?

MR. SIMS: Yes.

MR. SCHECK: Because of the dangers of cross-contamination or at least that is certainly one of the reasons?

MR. SIMS: That is one of the reasons, yes.

MR. SCHECK: And when we talk about inadvertent transfers, would you agree that sometimes one makes accidents in the handling of samples that one is aware of?

MR. SIMS: Yes.

MR. SCHECK: You might be aware that you saw some particle of blood, for example, on a glove?

MR. SIMS: Yes.

MR. SCHECK: But accidents can happen that you are not aware of?

MR. SIMS: Yes.

MR. SCHECK: In the handling and the manipulation of samples?

MR. SIMS: Yes.

MR. SCHECK: And it is for that reason that it is important to follow the precautions that we reviewed so far this afternoon?

MR. SIMS: Well, there is a lot more to that, but yes, that is part of it.

MR. SCHECK: And in terms of at the end of a DNA analysis, when you are looking at an autorad or a typing strip, and there is some indication in your controls, positive control, negative control or quality control sample, of a irregularity, it is often difficult to go back and figure out what stage of the process went wrong that caused that irregularity?

MR. SIMS: It can be difficult, but one can take a systematic approach to that and track back and perform the different parts of the experiment, and also if one has, for example, extracted DNA or raw material, one can repeat that analysis. That could be part of the way of tracking that back. You may not figure out exactly what happened, but then you could still get the correct result, for example.

MR. SCHECK: For example, on these DNA typing strips for PCR, one sees dots?

MR. SIMS: Yes.

MR. SCHECK: And when certain dots light up, that is an indication that perhaps some amount of DNA associated with an allele has been detected?

MR. SIMS: Yes.

MR. SCHECK: But sometimes dots can light up and one wonders whether or not that is DNA that really comes from the starting material that you are examining as opposed to something that may be just what's called an artifact in the process?

MR. HARMON: Objection, compound.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: What is--can dots light up on that PCR strip and it not be the DNA from the starting material?

MR. SIMS: Yes. That could happen, for example, if you had a mix-up of sample or something like that, yes.

MR. SCHECK: And--or it could happen from some kind of contaminant that gets into the reagents?

MR. SIMS: Yes.

MR. SCHECK: It can happen from some cross-contamination in the handling, in the extraction--cutting and extraction of the sample?

MR. SIMS: Yes.

MR. SCHECK: But when one starts the reconstruction from looking at that dot-blot--

MR. SIMS: Okay.

MR. SCHECK: --it can often be difficult to figure out exactly what occurred to cause the dot to appear?

MR. SIMS: Sometimes it is difficult, yes.

MR. SCHECK: Now, let's talk for a second about your training in forensic DNA analysis.

MR. SIMS: Okay.

MR. SCHECK: You testified that you started at the Department of Justice in 1990?

MR. SIMS: Yes, in January of 1990.

MR. SCHECK: And was that your first exposure to doing forensic DNA analysis?

MR. SIMS: No. My--well, as far as doing it--my first training in DNA went back to 1988, but that was--that was a class that I took in how to perform DNA analysis.

MR. SCHECK: All right.

MR. SIMS: My first job involving DNA analysis was 1990, yes.

MR. SCHECK: And that is when you started at the Department of Justice?

MR. SIMS: Yes.

MR. SCHECK: But you did not begin to do case work in January of 1990?

MR. SIMS: That's correct.

MR. SCHECK: You began a process of training?

MR. SIMS: Yes.

MR. SCHECK: And could you describe for us--and you didn't--I think you told us on direct examination that you didn't begin doing case work until May or June of 1993?

MR. SIMS: `92.

MR. SCHECK: `92, I'm sorry. So how long was that from the time you first started at the DOJ lab?

MR. SIMS: About--about two years, a little over two years.

MR. SCHECK: But before you started at the DOJ lab, did you have extensive experience in crime lab procedures?

MR. SIMS: Yes.

MR. SCHECK: How many years?

MR. SIMS: Well, as part of my--all the time that I was in criminalistics, so that would be, what now, about fourteen years of experience in criminalistics before I went to the Department of Justice, something like that.

MR. SCHECK: Doing conventional serological testing?

MR. SIMS: Yes.

MR. SCHECK: Umm, and dealing with biological specimens?

MR. SIMS: Yes.

MR. SCHECK: But you did not begin doing case work until you finished two years of training?

MR. SIMS: That's correct.

MR. SCHECK: And when you did your training, did you receive guidance from people that had Ph.Ds or doctorate degrees?

MR. SIMS: Yes.

MR. SCHECK: People who had training in molecular biology?

MR. SIMS: Yes.

MR. SCHECK: People who had doctorate degrees in population genetics?

MR. SIMS: Yes.

MR. SCHECK: I think the phrase you used on direct examination, when Mr. Harmon was asking you why it took so long, you said something to the effect that it is important to know what makes a good bloodstain into a bad bloodstain?

MR. SIMS: Yes. That was part of I think what we were discussing, our environment abuse experiment where we exposed blood and semen stains to a wide variety of environment conditions to evaluate whether or not we would get the right or the wrong answer.

MR. SCHECK: And so it would be important, for criminalists who are collecting, packaging, processing, extracting, performing DNA analysis, to have an understanding of what causes degradation in samples?

MR. HARMON: Objection, misstates the testimony. It is argumentative.

MR. SCHECK: I'm asking him if that is true.

THE COURT: Overruled.

MR. SIMS: Yes, I think that would be important, that people collecting biological evidence should have some basic understanding.

MR. SCHECK: Of--they should have a basic understanding of what can cause cross-contamination?

MR. SIMS: Yes.

MR. SCHECK: In forensic DNA analysis?

MR. SIMS: Yes.

MR. SCHECK: And this, I think you indicated, is only the eighth time you have testified in court about your forensic DNA work?

MR. SIMS: I think this is now nine.

MR. SCHECK: Nine? Okay. Now, you talked on direct examination about laboratory accreditation?

MR. SIMS: Yes.

MR. SCHECK: You indicated that the Department of Justice is accredited by what is known as Asclad lab?

MR. SIMS: The American society of crime laboratory directors laboratory accreditation board.

MR. SCHECK: Yes. Now, this is a group of people that are doing forensic work?

MR. SIMS: Yes.

MR. SCHECK: And I think you said that I think it was, to save me some time, that with respect to the recommendations of the national research council of the national academy of science in their book "DNA technology in forensic science" that you don't rely on any of it?

MR. HARMON: Objection. That misstates the testimony that he gave.

THE COURT: Overruled.

MR. SIMS: I think you--as I understand, Mr. Harmon's question was did I rely on anything in there to reach the conclusions that I reached in this case.

MR. SCHECK: Oh, okay. Are you familiar with the recommendations in that book concerning laboratory accreditation?

MR. HARMON: Objection. It is irrelevant, hearsay under 721.

THE COURT: Overruled.

MR. HARMON: No foundation.

THE COURT: You can answer the question. Yes or no. Are you familiar with it?

MR. SIMS: No.

MR. SCHECK: You didn't read that chapter?

MR. SIMS: Well, I don't remember the administrative stuff.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Do you recall reading a chapter 4 called "ensuring high standards"?

MR. SIMS: Yes, I remember this chapter.

MR. SCHECK: May I approach?

(Brief pause.)

MR. SCHECK: Well, do you know whether you would rely on any part of this chapter as a--in terms of your expertise in criminalistics?

MR. HARMON: Objection. It is vague--it is irrelevant what he would rely on. It is hearsay, foundational 721.

MR. SCHECK: I am trying to save some time.

THE COURT: Overruled.

MR. SIMS: I think you would have to ask me on a point by point basis.

MR. SCHECK: Some you would rely on; some you wouldn't?

MR. SIMS: Depending on what that section says.

THE COURT: Mr. Scheck, why don't we move on. I'm not overly optimistic on this line of questioning.

MR. SCHECK: Well, let me just try it. Try a little bit.

MR. HARMON: Your Honor, I have an objection to--

THE COURT: Wait, wait. I am discussing this with counsel. I am trying to give him some guidance. Why don't you sit down. I'm not overly optimistic, Mr. Scheck, given the lack of the foundation at this point, so why don't we move on.

MR. SCHECK: I have located the sentence. Let me just ask this one and then I will move on, your Honor.

MR. SCHECK: Let me call your attention to--

THE COURT: Ask him if it refreshes his recollection whether or not he relied upon that.

MR. SCHECK: Yes, yes. That is exactly what I'm going to do.

THE COURT: Don't read it. Let him read it.

MR. SCHECK: I'm not. I'm not. I am just pointing it out.

MR. SCHECK: Let me just call your attention to the sentence on page 102 in the--the section dealing with establishing standards in forensic DNA typing, starting at the bottom of the page and moving into the top of page 103.

MR. HARMON: Objection, your Honor. He is reading parts of the book right now.

MR. SCHECK: I am calling his attention to it.

THE COURT: No. Go ahead and read it.

MR. SCHECK: Just read that to yourself and then tell me whether you rely upon that section?

MR. SIMS: (Witness complies.)

MR. HARMON: Objection. It is vague in relied upon in forming what opinion?

THE COURT: Overruled, counsel.

MR. SCHECK: Have you relied upon that in forming your opinions with respect to accreditation of laboratories?

MR. SIMS: No.

THE COURT: Proceed.

MR. SCHECK: Now, do you believe--do you have--you were asked questions about clinical medicine on your direct examination and DNA typing in clinical medicine.

MR. SIMS: Yes.

MR. SCHECK: All right. Are you aware of standards or regulations in clinical medicine and how they compare to the standards on forensic laboratories?

MR. SIMS: No.

MR. SCHECK: So the issue is you know forensic standards?

MR. SIMS: Yes.

MR. SCHECK: But you are not aware of the standards required of laboratories who are using DNA typing in clinical medicine?

MR. SIMS: That's correct, I don't know those standards.

MR. SCHECK: All right. So you couldn't tell us whether they are more rigorous or less rigorous than forensics?

MR. HARMON: Objection, asked and answered.

THE COURT: Overruled.

MR. HARMON: Calls for speculation, too.

THE COURT: Overruled.

MR. SIMS: I couldn't tell you.

MR. SCHECK: Now, in terms of discussing forensic DNA typing, Asclad sets standards which your laboratory had to meet?

MR. SIMS: Yes.

MR. SCHECK: And would you agree that the process of preparing your laboratory for Asclad accreditation improved in some measure the work in the laboratory?

MR. SIMS: I don't--I don't think it necessarily improved our work product. I think what it did was to bring it all together for us, and I think it--it addressed some issues. I mean, when you talk about accreditation, this would even include safety issues, evidence handling issues as far as security of the laboratory, all those things are part of it. I don't think in a particular way that it changed our work product. I don't think it changed the quality of our product. I think what it helps to do is to tell the users of our services that we are meeting certain minimum standards and so it is--it is saying that we meet those standards.

MR. SCHECK: All right. I'm not asking you--I think you were asked on direct examination were your results as reliable before the accreditation process as after. Do you recall that?

MR. SIMS: Yes.

MR. HARMON: That misstates the testimony.

THE COURT: Overruled.

MR. SCHECK: I'm not asking you that question.

MR. SIMS: Okay.

MR. SCHECK: I mean, in terms of, umm, cases, are you--are you aware of making a mistake?

MR. SIMS: In--

MR. SCHECK: In any of your forensic DNA typing cases to this point?

MR. SIMS: No, I am not aware that I have made a mistake in any of my cases.

MR. SCHECK: Right. On the other hand, would you agree that the process of accreditation which I think you have indicated you review all the different techniques in your laboratory?

MR. SIMS: Yes.

MR. SCHECK: You look at how various people in the laboratory handle biological evidence?

MR. SIMS: Yes.

MR. SCHECK: You would look into some of the factors that we discussed this afternoon in terms of trying to prevent cross-contamination and precautions that ought to be taken?

MR. SIMS: Yes.

MR. SCHECK: Is that the kind of thing that is done during the accreditation process?

MR. SIMS: Yes.

MR. SCHECK: And during the accreditation process did you work on that manual that we've talked about?

MR. SIMS: Yes. I think we had to put together the manual as part of our accreditation, yes.

MR. SCHECK: And in putting together the manual you went through the details of exactly what people did?

MR. SIMS: Yes.

MR. SCHECK: And people learned exactly what procedures ought to be followed with care?

MR. SIMS: Well, people didn't hear that from the manual. We knew those things so we incorporated those things into our manual to say as a reference that that is how we are doing things and we are telling you that this is how we are doing things.

MR. SCHECK: Right. And maybe some people in the laboratory had one way of doing things and other people had others?

MR. SIMS: Well, we were--we were actually pretty much all on the same wavelength as far as those concerns, but there were some minor things, yes, that we improved upon.

MR. SCHECK: And in the process of accreditation and in putting together of this manual, what happens is, is that you set out uniform standards that you can be sure everyone associated with that crime lab will follow?

MR. SIMS: Well, I can be sure that they know they are supposed to follow those, yes.

MR. SCHECK: Right. And you would agree that that is a benefit of going through the accreditation process?

MR. SIMS: Yes. I would agree with that.

MR. SCHECK: Now, on direct examination there was some discussion of your role in what is known as certification?

MR. SIMS: Yes.

MR. SCHECK: And accreditation is something that is done for the whole laboratory, correct?

MR. SIMS: Yes.

MR. SCHECK: But certification is a process where an individual criminalist is examined?

MR. SIMS: That's correct.

MR. SCHECK: And I think you told us something about being on the board of American--what is the title of that organization?

MR. SIMS: I was on the board of examiners that--that--for example, I would work on certain test questions. I would also proctor the examination.

MR. SCHECK: Uh-huh. This would be for the individual analyst, this certification test?

MR. SIMS: Yes.

MR. SCHECK: And would you agree that the process of preparing for the test has the effect of improving the work of an individual analyst?

MR. SIMS: Yes. I think--I think that is a fair statement. In other words, part of that is the educational benefit that one gains from preparing for that sort of examination, yes.

MR. SCHECK: I mean, no matter how experienced one is, you can always learn some new technique that will improve your level of practice?

MR. SIMS: Yes.

MR. SCHECK: So you would agree it is important that criminalists who work for a number years in the field be certified?

MR. SIMS: I think it is important that the criminalist move toward certification, yes. Our field has been slow to do that, and we are now coming on line with certification more and more.

MR. SCHECK: Umm, do you know Dennis Fung?

MR. SIMS: I know him from watching him in this case, yes.

MR. SCHECK: Do you know if your organization has certified him through its examinations?

MR. HARMON: Objection, irrelevant, beyond the scope.

THE COURT: Sustained.

MR. SCHECK: Are you familiar with the guidelines for the collection of DNA evidence that was published by the FBI?

MR. SIMS: Yes, I think--was that the one that Dr. Lee was a co-author of?

MR. SCHECK: (Nods head up and down.)

MR. SIMS: Yes.

MR. SCHECK: Have you reviewed that document?

MR. SIMS: Yes.

MR. SCHECK: Do you rely on it?

MR. HARMON: Objection, it is vague. Rely on what for what reason?

THE COURT: Sustained.

MR. SCHECK: All right. Is there anything you saw in that document you don't rely on?

MR. HARMON: Objection, still vague.

THE COURT: Sustained.

MR. SCHECK: For purposes of methods that you in your expert opinion would believe were sound for the collection of evidence items for purposes of forensic DNA analysis?

MR. SIMS: I don't--I don't recall any statement in there that I disagreed with, no.

MR. SCHECK: Now, as the last part of this section of our discussion here, Mr. Sims, I have a series of photographs, your Honor, that I would like to mark--

THE COURT: 11--1160-A through--

MR. SCHECK: Maybe 1168-A, B, C, D, E and F.

THE COURT: All right. 1160.

(Deft's 1160-A thru f for id = photographs)

THE COURT: A through F.

MR. SCHECK: And you and I reviewed these photographs, did we not?

MR. SIMS: Yes. We looked at them just briefly.

MR. SCHECK: And these are photographs of you in your laboratory?

MR. SIMS: Yes. These were taken a few weeks ago by Dr. Blake.

MR. SCHECK: And this--these photographs were--showed you at different stages of the process by which you, I guess, initially handled and cut the samples in this case?

MR. SIMS: Yes. Dr.--Dr. Blake asked me to reconstruct and just sort of go through what it looked like as I was processing the samples in this case.

MR. SCHECK: And could you review those and suggest which order we ought to go through.

THE COURT: You mean you didn't put those in order, a through F?

MR. SCHECK: I think we did, but I'm only asking him whether I have the order right.

THE COURT: How about if we renumber them in the order we are going to use them.

MR. SCHECK: I'm sorry?

THE COURT: Renumber them in the order we are going to use them.

MR. SCHECK: I am going to do that.

THE COURT: All right.

MR. SCHECK: Let me show you B.

MR. SIMS: Okay.

THE COURT: We are going to start with B?

MR. SCHECK: Start with B. A is a surprise.

(Brief pause.)

MR. SCHECK: Could you describe for us what is depicted in A?

MR. SIMS: Yes. Those are, I believe, my hands. What I'm showing is the process of how I am cutting out a sample here. This is just a blank card. Obviously, it is a white card. I'm showing that I have the--I have a laboratory bench that I have bleached now. I have a--

MR. SCHECK: Well, let's just stop right there. The laboratory bench is the bench that that blue what would you call it, hospital--

MR. SIMS: Hospital type diaper we call them, something like that.

MR. SCHECK: Okay. Hospital type diaper, that is what it is, okay. Correct?

MR. SIMS: Correct.

MR. SCHECK: All right. So before you put that hospital type diaper on the bench you bleach it?

MR. SIMS: Yes.

MR. SCHECK: And the purpose of bleaching it is to make sure that you get rid of biological material that could contain DNA?

MR. SIMS: Yes.

MR. SCHECK: All right. Then you put the hospital type blue--what should we call it, blanket?

MR. SIMS: Sure.

MR. SCHECK: --on the bench?

MR. SIMS: Okay.

MR. SCHECK: Then what is that white paper on top of the blue hospital blanket?

MR. SIMS: Okay. I would--the way I am processing this case--the way I processed this case and other cases certainly, too, I would put down a new one of these blue pads for each one of the items that I looked at. Keep in mind that each item is--generally each item is a coin envelope that contains two bindles, so inside this coin envelope are two bindles. One of the bindles would contain the swatch with the bloodstain on it. The other bindle would contain the substrate control, so I would change this blue pad between each one of those coin envelopes. So now when I would open the coin envelope--I'm sorry. Before I would open the coin envelope there would be one of these white chem wipes, just a piece of white tissue, a large size tissue like a Kleenex somewhat.

MR. SCHECK: Is that the white--

MR. SIMS: Yes.

MR. SCHECK: Chem wipe is the large white object--larger white object on top of the blue blanket?

MR. SIMS: Yes. And so I would process the bindle containing the stain on top of one chem wipe and then I would change the chem wipe and then process the next bindle containing the substrate control with a new chem wipe.

MR. SCHECK: So what you are actually doing there, is that just for one item, all right, one item that contains the swatch with the specimen on it and the substrate control, between the substrate control and the specimen you would change the surface you were working on that chem wipe?

MR. SIMS: Yes, in most cases. I think on some of these it may have just been one chem wipe that I am working on. You can see it is a large chem wipe, so I would work on two different areas of it.

MR. SCHECK: Different areas or you change the chem wipe?

MR. SIMS: Yes.

MR. SCHECK: And the manila envelope there, that is to replicate the coin envelope?

MR. SIMS: Yes. That is to replicate the coin envelope.

MR. SCHECK: All right. And on the upper left-hand--well, I guess it is the upper right-hand corner of the screen, we see another one of those blue hospital blankets?

MR. SIMS: Yes.

MR. SCHECK: And what is on that?

MR. SIMS: Excuse me. Well, that would now contain the--that orange object is a test-tube rack and soap. As I process these test-tubes, I would place each tube individually into that rack. In other words, once you put a stain swatch into a test-tube, then it is capped and placed into that rack, so it is out of the way of the other material. And then also on there you can see a--this is another little chem wipe that has a little blue plastic tube popper on it. That is used to pop these tubes open so that that way you don't do it with your glove; you do it with the tube popper. And then finally I think I'm laying out another chem wipe that would have the cap, unused tubes. In other words, where I would get the new tubes from, because those come out of an autoclave jar at one point and you would lay some of those out.

MR. SCHECK: You just used the word "autoclave." could you tell the jury what an autoclave is?

MR. SIMS: Yes. It is a process whereby reagents and equipment are--is steam sterilized. In other words, it takes things up to a very high temperature to sterilize.

MR. SCHECK: And the purpose of that is?

MR. SIMS: Well, the purpose of that is to destroy biological material and to break DNA down into various small--very, very small fragments.

MR. SCHECK: Helps prevent cross-contamination?

MR. SIMS: Contamination, yes.

MR. SCHECK: Okay. Now, let's go back to the--you say you have a scissors in your hand?

MR. SIMS: Yes.

MR. SCHECK: That is in your right hand? That is in your left hand?

MR. SIMS: That would be my forceps.

MR. SCHECK: You were asked some questions on direct examination about your forceps. Sometimes people call them tweezers?

MR. SIMS: Yes.

MR. SCHECK: Now, are your tweezers serrated?

MR. SIMS: No.

MR. SCHECK: They are like the tweezer or the forceps that jewelers use, they are ground down, correct?

MR. SIMS: Yes, they are like those.

MR. SCHECK: All right. And it is your understanding that forensic DNA scientists that do the work you do will employ such ground down forceps?

MR. SIMS: Yes. That is not just DNA; that is from conventional serology days.

MR. SCHECK: Conventional serology days?

MR. SIMS: Yes.

MR. SCHECK: It is a general practice among criminalists to avoid handling samples with serrated tweezers because the problem with serrated tweezers is that you can get--they are harder to clean?

MR. SIMS: They are harder to clean, yes.

MR. SCHECK: Okay. So please go on and tell us about what you are doing there.

MR. SIMS: Well, I am just proceeding to cut into this sample is what I would be doing, and I think that is it.

MR. SCHECK: Okay. Great. Let's move on to C.

MR. SIMS: Okay.

MR. SCHECK: What are you doing here?

MR. SIMS: There you can see the tap is running and I am washing--washing my forceps.

MR. SCHECK: What are you washing them in at that point?

MR. SIMS: Just tap water. In other words, a big gush of water to get any of the bulk material off.

MR. SCHECK: All right. So you start with the water to get the bulk material off; is that correct?

MR. SIMS: That's correct.

MR. SCHECK: Let's move to D. What are you doing in D?

MR. SIMS: I'm wiping my forceps with a chem wipe.

MR. SCHECK: What are you doing in E?

MR. SIMS: Now, at this point this is the next part of the cleaning process where I'm actually rinsing them down with a little spray bottle of alcohol.

MR. SCHECK: And what are you doing in F?

MR. SIMS: This--this is the flaming process. Whenever that bunsen burner was lit, people in the laboratory knew that Dr. Blake and I were working together, but that is used to what we call fire or flame the actual tools and that is sort of a final ultimate killer of anything. I mean, it would certainly carbonize any biological material that may be left over.

MR. SCHECK: And you would do this between each item?

MR. SIMS: Yes, and that would be even between each substrate control, of course, too.

MR. SCHECK: Between--you go from specimen and you would go through this cleaning procedure?

MR. SIMS: Yes.

MR. SCHECK: Including the last part of the autoclaving or using the bunsen burner?

MR. SIMS: Yes.

MR. SCHECK: And then you would move to the specimen or specimen, substrate control, you clean in between?

MR. SIMS: Yes.

MR. SCHECK: And the last picture, which I know you didn't want me to show, that is you in the lab, right?

MR. SIMS: Yes. This is a picture of me in the laboratory. That is my U.

MR. SCHECK: Okay. Thank you.

THE COURT: That is your U?

MR. SIMS: Yes. The shape of the bench is a U, so we call those U's.

MR. SCHECK: What is our timing? I can't even remember. Did we take a break or are we moving right through?

THE COURT: We are moving along. 4:30.

MR. SCHECK: Okay.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Let's now move to the Bundy blood drops.

MR. SIMS: Okay.

MR. SCHECK: Now, plastic bags. In your opinion, sir, putting a wet swatch--swatches in a plastic bag that folds over and then putting that plastic bag in a coin envelope, putting it on--on the floor of a crime scene truck for seven hours in the month of June--I won't say anything about--just make assumptions about the temperature being something on the order of in the sixties in Brentwood--

MR. SIMS: I grew up in L.A. So I know--I know what June is like. It is usually a little overcast part of the morning.

MR. SCHECK: Why don't we assume it is about 11:00 or twelve o'clock in the afternoon?

MR. SIMS: Okay. The skies are starting to lighten up, people are heading for the beach.

MR. SCHECK: And it is in a crime scene truck.

MR. SIMS: Okay.

MR. SCHECK: And it is there for seven hours.

MR. SIMS: Okay.

MR. SCHECK: Before opened.

MR. SIMS: Okay.

MR. SCHECK: Would you agree that putting swatches in a plastic bag, wet blood swatches in that fashion would have the effect of degrading the DNA in those samples?

MR. HARMON: Objection, it is beyond the scope.

THE COURT: Overruled.

MR. SIMS: Provided that there was some bacterial action, for example, that came with the substrate material, yes, that could get that process going.

MR. SCHECK: And the bacterial agents could be on--you saw some pictures on direct examination about the locations of items 47, which was photo no. 117, 48, photo no. 118, 49, photo no. 119, 50, photo no. 120 and 52, I think photo no. 122. You saw those?

MR. SIMS: Yes.

MR. SCHECK: Those blood drops, right?

MR. SIMS: Yes.

MR. SCHECK: You saw the substrates?

MR. SIMS: Yes.

MR. SCHECK: Would you have a reasonable expectation that those--that swatches made from those blood drops would contain biological--bacterial agents that when put--those swatches put in the plastic bag, kept there for seven hours, moist and wet, would begin a process of bacterial degradation?

MR. SIMS: Yes. In other words, if this is a blood sample, then the bacteria would feed on the blood, and yes.

MR. SCHECK: In your opinion is a sound practice to collect wet blood swatches of this kind containing from substrates that have some dirt, put them in plastic bags, such--in the truck in my hypothetical for seven hours? Is this a sound practice?

MR. SIMS: I--I don't think it is a good idea to leave them that long.

MR. SCHECK: Because that could have the effect of causing severe degradation of the samples?

MR. SIMS: Well, it could certainly lead to degradation. The severity I'm not sure of.

MR. SCHECK: Well, because it is hard to predict exactly how extensive the process of degradation might be?

MR. SIMS: Well, I don't know if it is that hard to predict. I mean, bacteria have certain growth cycles and people have characterized these things quite well, so I think you could do the experiment. I think you just don't know exactly how much is in the starting material. That is what would be hard to predict.

MR. SCHECK: You conducted yield gels of the blood drops from Bundy?

MR. SIMS: Yes.

MR. SCHECK: And the results of your yield gels indicated that they contained lots of bacterial DNA?

MR. SIMS: Well, that is--that is what it suggested, although once you keep in mind we did not do a specific test for bacteria, but that is what I interpreted to be the most likely cause.

MR. SCHECK: In these yield gels I think--did you see that part of Dr. Cotton's testimony where she put a yield gel up there for the jury?

MR. SIMS: I may have seen that, yes.

MR. SCHECK: All right.

MR. SIMS: I think I did.

MR. SCHECK: That is one of those gels where they have some bands that are standards?

MR. SIMS: Yes.

MR. SCHECK: That have a certain degree of intensity?

MR. SIMS: Yes.

MR. SCHECK: And then you compare the smears in the lanes for the specimens to the standards?

MR. SIMS: Yes.

MR. SCHECK: And sometimes at the bottom of those bands there is something that are called plasmids?

MR. SIMS: Yes. I--I think those may be plasmids, although I'm not sure those are plasmids.

MR. SCHECK: Why don't you tell the jury what a plasmid is.

MR. SIMS: Yes. A plasmid is a relatively small piece of circular DNA that is usually found inside a bacterium. It is separate from the bacterial DNA, but it goes along for the ride with the bacterium.

MR. SCHECK: On the yield gels, when one can identify areas that look like plasmid bands--

MR. SIMS: Well, I'm--the point is I know the bands you are speaking of and I believe they are bacterial origin. Whether they are plasmids or not I'm not sure.

MR. SCHECK: But those bands indicate to you that there was substantial bacterial degradation in the Bundy blood drops?

MR. SIMS: Well, that would suggest to me that there is substantial bacteria. For example, when we look at a vaginal swab from a case, you will frequently see bacteria, but that doesn't mean that the female's DNA is degraded.

MR. SCHECK: All right. Now, after the yield gel for these Bundy drops, you conducted something that you described before as a southern transfer process?

MR. SIMS: Yes.

MR. SCHECK: And that was done to determine if you could identify the amount of human DNA that were in these samples?

MR. SIMS: Yes.

MR. SCHECK: And that can't--that--and you were able to get some--and then you did what is known as a slot-blot?

MR. SIMS: Yes.

MR. SCHECK: Did you do that before--I think you did that before or after the southern transfer?

MR. SIMS: One of the times we did it after. I think another time we may have done it before.

MR. SCHECK: Are you finished? But the slot-blot is a way of determining the amount of human DNA--

MR. SIMS: Yes.

MR. SCHECK: --in the specimen?

MR. SIMS: Yes.

MR. SCHECK: And so what we had in these Bundy blood drops was a substantial amount of bacterial DNA?

MR. SIMS: Yes.

MR. SCHECK: And some amount of human DNA?

MR. SIMS: Yes.

MR. SCHECK: And from those tests you can't tell how the amount of human DNA got there?

MR. SIMS: That's correct.

MR. SCHECK: Now, let's talk about how much human DNA you were able to identify in these samples.

MR. SIMS: Okay.

MR. SCHECK: Now, for sample 47 you received two swatches?

MR. SIMS: I believe that's correct, but I would like to check my notes on that point.

MR. SCHECK: All right. If I may approach the witness, I have a chart that might assist him.

THE COURT: Do you want to show that to Mr. Harmon?

MR. HARMON: I have not seen that.

MR. SCHECK: It is my own work notes, but I will show it to him.

THE COURT: If you are going to show it to the witness--

MR. SCHECK: That's quite correct.

MR. HARMON: Could I get a copy of this?

MR. SCHECK: Sure.

THE COURT: I have never seen it before. Could I have a chance to review it, too, your Honor?

THE COURT: Sure. Ms. Robertson, do you want to--

MR. SCHECK: You know what, your Honor, just to save time, rather than do that--

MR. SCHECK: You are not going to take my word what is on this chart, are you? You are going to look it up in your own notes?

MR. SIMS: Mr. Scheck, I would take your word for anything. I will look it up.

MR. SCHECK: Look it up.

MR. SIMS: But just to make sure we are connecting here, now, this was with regards to no. 47?

MR. SCHECK: 47.

MR. SIMS: Okay. I had, by the way, prepared a little spread sheet that--just as a roadmap to my notes. That is what I'm looking at to find these things.

MR. SCHECK: Maybe I could look at that?

MR. SIMS: Sure.

(Brief pause.)

MR. SCHECK: So you received two swatches?

MR. SIMS: Yes.

MR. SCHECK: And they weighed 8.5 milligrams?

MR. SIMS: This is now no. 47?

MR. SCHECK: 47.

MR. SIMS: Okay. The--that would be correct.

MR. SCHECK: And the weight extracted by you was 4.7 milligrams?

MR. SIMS: Yes, I took the larger piece.

MR. SCHECK: And you got 4.34 nanograms of human DNA?

MR. SIMS: I'm sorry, you asked me how many--what was the quantity?

MR. SCHECK: 4.34 of the slot-blot?

MR. SIMS: That sounds about right. I had about 3.8 after--after I did the quantitation. When Dr. Blake and I would review these quantitations, I went back and figured out--he went back and figured out the total yield, I believe, is what my notes would reflect how much was left after I had done the quantitation because that is what I had left to work with, about four nanograms?

MR. SCHECK: 4.34?

MR. SIMS: I would go for that.

MR. SCHECK: Now, let's assume that there were five other swatches associated with sample 47, weighing 28 milligrams, and let's further assume that the biological matter, the blood, was randomly or evenly distributed over those other swatches.

MR. SIMS: That is--that is quite an assumption sometimes if you are talking about uniformity.

MR. SCHECK: Just assume that--

MR. HARMON: Objection, improper hypothetical. There is no foundation for it.

THE COURT: Overruled.

MR. SCHECK: And let's further assume that--maybe this will be the easiest assumption to just make and quantify. Let's just assume that out of all the material associated with sample 47, all seven swatches, you extracted 12.9 or 13 percent of the DNA.

MR. SIMS: Okay.

MR. SCHECK: Would you project then that associated with all the swatches there would be about 33.6 nanograms?

MR. SIMS: Without a calculator I wouldn't assume that.

MR. SCHECK: About in that area?

MR. SIMS: Okay. Say again. Your amount was?

MR. SCHECK: That you had about 12.9 or 13 percent of the sample.

MR. SIMS: Okay.

MR. SCHECK: That if we were to calculate--thank you, your Honor--if we were to calculate the total amount of human DNA in the sample, it would come to something on the order of 33.6 nanograms?

MR. SIMS: Well, that sounds about right.

MR. SCHECK: All right.

MR. SIMS: It would be about ten times what I had, so yeah.

MR. SCHECK: Let's try sample 48.

MR. SIMS: Okay.

MR. SCHECK: You received two swatches weighing 8.1 milligrams, extracted 6.5 and got a slot-blot of 4 nanograms.

MR. SIMS: Again let me check that.

(Brief pause.)

MR. SIMS: Okay. This is item number--

MR. SCHECK: 48.

MR. SIMS: --48. Okay. And you said about 4; is that right?

MR. SCHECK: 4.

MR. SIMS: Okay.

MR. SCHECK: So based on the weight, assuming that you extracted eighty percent of the total amount in those two swatches, that if you were to project total amount of DNA on the swatches, it would be 5 nanograms?

MR. SIMS: Yeah. I can eyeball that.

MR. SCHECK: All right. Let's turn to sample 49.

MR. SIMS: Okay.

MR. SCHECK: You received about two swatches in I think something like a thread that weighed 4.6 milligrams altogether?

MR. SIMS: Well, there were--keep in mind on 49 there were two different submissions on that, but you are talking about the initial one?

MR. SCHECK: Yeah. Well, to cut to the bottom line, let's assume that there were altogether five swatches--

MR. SIMS: Okay.

MR. SCHECK: --associated with this sample weighing a total of--and--19.6 milligrams you extracted 2.5 milligrams and got a quantity of .24 nanograms, which would mean that your quantification represents 13 percent of the total sample extracted and therefore the total amount of human DNA in the sample would be on the order of 1.8 nanograms?

MR. SIMS: That sounds about right, yes.

MR. SCHECK: Let's turn to item 50.

MR. SIMS: Okay.

MR. SCHECK: You received one swatch weighing 7.2 milligrams.

MR. SIMS: Okay.

MR. SCHECK: Assume that this is a total of four swatches with a total weight of 22.2 milligrams.

MR. SIMS: Okay.

MR. SCHECK: The weight of your extraction is 3.6.

MR. SIMS: Wait. I'm sorry. Back up. There were a total of how many swatches?

MR. SCHECK: 4.

MR. SIMS: 4, okay, and mine was 7.2?

MR. SCHECK: Right.

MR. SIMS: Okay.

MR. SCHECK: And the total weight is 22.2 mil?

MR. SIMS: Well, wait if there is 4 and I've got 7.2? Doesn't it have to be closer to about 30 milligrams?

MR. HARMON: Your Honor, objection. Is this a hypothetical? And if it is, there is no foundation for it. It is improper hypothetical.

THE COURT: Well, it is a little late now that we've gone through several.

MR. HARMON: Well, better late than never, your Honor.

THE COURT: That is true. Why don't you reask the question and clarify with Mr. Sims.

MR. SCHECK: Why don't we just--the weight you extracted was 3.6 milligrams?

MR. SIMS: Oh, okay. What I extracted was 3.6. Okay. That is where--okay.

MR. SCHECK: And assume that 16 percent of the total--

MR. SIMS: Okay.

MR. HARMON: Objection. Base--is this a hypothetical?

MR. SCHECK: I'm asking him to assume that.

MR. HARMON: There is no basis for it. Objection on that basis.

THE COURT: Sustained.

MR. SCHECK: Your Honor, can we--there is--

(Discussion held off the record between Defense counsel.)

MR. SCHECK: You are aware that all the swatches were weighed in this case at your laboratory, at Cellmark diagnostics?

MR. HARMON: Objection. Calls for hearsay, compound.

THE COURT: Sustained.

MR. SCHECK: Your Honor, subject to connect--

(The following proceedings were held at the bench:)

THE COURT: What is the point here, Barry?

MR. SCHECK: The point is that we--Cellmark has the data, the Prosecution has the data, and I ask you to take it subject to connection and that we will produce the weights that everybody was present for, okay? In order to get what this--to get out from this witness a projection of the total amount of DNA in each of these samples, by methods that he already described to this Court in a Griffen hearing, standard methods in the field for trying to project total weight of DNA, if you recall, we did that at the split hearing, exactly the same procedures when he was trying to project how much would be available for splits, et cetera.

THE COURT: But part of the problem, though, is that you don't know the uniformity of the material on the swatches.

MR. SCHECK: I understand that.

THE COURT: That is our problem.

MR. SCHECK: My point is that--that that is something that they can ask on cross-examination or he can qualify, but I think that for these purposes, particularly since that can't be measured, it is a very scientific assumption, and the way he did it in the Griffen hearing--and if you want I will lay the foundation--the way people in this field will do it is to make assumption of random distribution. If we make an assumption of random distribution, what would you project the amount to be? And then they can argue later that, well, it may have him been uneven, et cetera, maybe there is more.

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

THE COURT: Do we have somewhere a total extracted per item by all the labs involved?

MR. SCHECK: Yes.

MR. HARMON: You know, this raises an intriguing point that I know it is about time to burst the balloon on this, and that is reciprocal discovery. I am aware that these things have been reviewed in camera. Mr. Scheck says they are going to tie it up. They are going to present it. We have almost nothing from Defense experts in this case and I think it is about time for them to start giving it up rather than to tell you, which I'm sure they have in camera, that this would undermine or compromise their ability to effectively cross-examine and that is not--I don't know what he is talking about. I don't know everything about their case, but I think that is what is going on and it is time to call a halt to the proceedings and for somebody to start turning over their reciprocal discovery. I would like to know what the offer of proof is. I would like to know who the witness is and I would like to see the documentation for the assertion that he made a couple minutes ago. And unless and until that happens, I think the Court needs to draw a halt to this and turn this back into a fair proceeding where we are entitled to have what we should have had before the trial began, your Honor.

THE COURT: What is the basis of your offer that we know what the total extraction is?

MR. SCHECK: The way that this hypothetical is proceeding is that we are--we know many swatches there are, they know how many swatches. The data comes from them. The weights--because I don't think there is any reciprocal discovery problem at all, just like the pictures, the stipulations, that is, these weights were done by Dr. Lee and Dr. Blake and Cellmark together. Everybody put the swatches on the scale--

THE COURT: Uh-huh.

MR. SCHECK: --and measured them. Each wrote down what weight, and that is all I'm working with, the number of milligrams in the swatches, the number of swatches.

THE COURT: But I thought you told me that this was a compilation somewhere of the total extractions from all these items.

MR. SCHECK: Yeah, exists in the notes from Cellmark and from DOJ is how much they extracted from--in other words, he has his slot-blot calculations.

THE COURT: Uh-huh.

MR. SCHECK: So what we are doing in these hypotheticals and what he is agreeing to is in the same method that was applied at the Griffen hearing, is that he is saying, if we assume random distribution and we look at the amount of weight of each swatch and the number of swatches, all right, and the weight--the percentage of weight is the simplest way to do it, and then we look at his DNA extraction and project the total DNA extraction, that is an estimate of how much human DNA was in each of these samples.

THE COURT: Well, I'm not going to assume--I'm going to sustain the objection at this point because we can't assume a random or uniform distribution.

MR. SCHECK: If I ask him a foundational question whether or not to that--

MR. HARMON: While I did not object, I would like to move to strike the entire line of questioning. I didn't make a timely objection.

THE COURT: I'm going to sustain a foundational objection at this point because I don't think you can assume any uniform distribution.

(The following proceedings were held in open court:)

MR. SCHECK: Mr. Sims--

MR. SIMS: Yes.

MR. SCHECK: --in assessing samples for purposes of forensic DNA testing, is it a regular practice to take slot-blot measurements of parts of swatches?

MR. SIMS: Well, sometimes we use slot-blots, but sometimes we quantitate just from the yield gel.

MR. SCHECK: By either using the yield gel or a slot-blot or even a southern transfer together using these quantitative methods?

MR. SIMS: Yes.

MR. SCHECK: Well, is it a regular--well, is it a practice that is used to try to make a projection as to how much total DNA one would expect to find in a sample based on the assumption that the amount of DNA one sees in one part of a swatch would be randomly distributed on other parts of the swatches? Is that one way that people in your line of work try to make estimates about the amount of DNA for purposes of figuring out a testing process?

MR. SIMS: Yes.

MR. SCHECK: All right. And in fact at some point earlier did you go through calculations based on the methods similar to the ones we are going through here today to try to make projections as to how much DNA would be on these various swatches?

MR. SIMS: Yes.

MR. SCHECK: All right. May I proceed? So the assumption, for purposes of making estimates that the amount of DNA one would find on swatches would be randomly distributed, is the kind of assumption forensic DNA analysts such as yourself make when trying to make reasonable projections about what exists on samples?

MR. SIMS: Yes.

MR. SCHECK: May I proceed, your Honor?

THE COURT: Proceed.

MR. SCHECK: I forget, I'm sorry, it is painstaking, but what are we up to? 50?

MR. SIMS: I think we are on 50.

MR. SCHECK: Only two more.

MR. SIMS: Excuse me.

MR. SCHECK: Let us assume--you--your slot-blot estimate was 1.94 nanograms.

MR. SIMS: That sounds correct.

MR. SCHECK: If you assume that you extracted 16 percent of the total sample--

MR. HARMON: Objection, improper hypothetical.

THE COURT: Overruled.

MR. SCHECK: --would you project that the total human DNA in the sample would be about 12.1 nanograms?

MR. HARMON: Objection, it is irrelevant.

THE COURT: Overruled.

MR. SIMS: Yes.

MR. SCHECK: And let's make it easy on sample 52. Umm--well, I might have asked this before. Let's try it this way: If Robin Cotton had testified that the amount of human DNA that was used for the RFLP testing at Cellmark for sample 52 was 25 nanograms of human DNA, would that be consistent with your calculations that--with your slot-blot of 3.64 nanograms based on the assumption that you had 11.5 percent of the sample?

MR. HARMON: Objection, calls for hearsay. It misstates Dr. Cotton's testimony.

THE COURT: Sustained.

MR. SCHECK: All right.

MR. SCHECK: If you assume that you had 11.5 percent of the total sample, and taking into consideration that your slot-blot was 3.64 nanograms, would the total amount of human DNA in sample 52 be something on the order of 31.6 nanograms?

MR. HARMON: Objection, improper hypothetical.

THE COURT: Sustained as stated.

MR. SCHECK: All right.

THE COURT: You forgot the assumption about uniformity.

MR. SCHECK: Yes, I assumed that.

MR. SCHECK: Assuming of course in this projection that the biological specimen was uniformly--randomly distributed over the swatches.

MR. SIMS: Okay.

MR. SCHECK: Is that right?

MR. SIMS: Okay. Well, can I do the calculation now?

MR. SCHECK: Do it.

MR. SIMS: I want to take a minute with this one.

(Brief pause.)

MR. SIMS: Did you say 31.6 nanograms? That is what I came up with also.

MR. SCHECK: Okay. Remember that is the total, right?

MR. SIMS: Well, I don't know that. I'm assuming that.

MR. SCHECK: Assuming?

MR. SIMS: Your 11 and a half percent.

THE COURT: Wait, wait. Let him finish his answer. Let him finish answering the question--asking the question. What is your answer?

MR. SCHECK: My question simply is--

THE COURT: No, no. He was in the middle of an answer.

MR. SIMS: The assumption was that we had 11 and a half percent of the sample.

MR. SCHECK: That's correct. Now, you in fact used 3.64 nanograms yourself?

MR. SIMS: Well, we extracted that much, yes.

MR. SCHECK: Yes. Okay. Now, you recovered--you tested the amount of human DNA found on item--LAPD item 45, a handrail?

MR. SIMS: Yes.

MR. SCHECK: Blood on the handrail, correct?

MR. SIMS: Yes.

MR. SCHECK: You haven't even typed that yet, have you?

MR. SIMS: That's correct, we have not.

MR. SCHECK: But you did a quantitation on it?

MR. SIMS: Yes, we did.

MR. SCHECK: And you got from those swatches human DNA of 2.6 nanograms?

MR. SIMS: Give me one minute, please.

(Brief pause.)

MR. SIMS: That was item no. 51?

MR. SCHECK: No, 45.

MR. SIMS: 45.

MR. HARMON: Your Honor, object. This is beyond the scope. There has been no testimony about that item.

THE COURT: Sustained.

MR. SCHECK: Your Honor, it will be connected up in a second.

THE COURT: Sustained.

MR. SCHECK: You did typing of sample 117 from the back gate?

MR. SIMS: Yes.

MR. SCHECK: And that substrate is--have you seen--you were shown pictures of that on direct examination?

MR. SIMS: Yes, I believe I was.

MR. SCHECK: That is the gate?

MR. SIMS: The rear gate, yes.

MR. SCHECK: Rear gate. Rust on that rear gate?

MR. SIMS: I don't recall seeing rust that clearly, but I would have to see the photo again. I looked at it mainly for the location. That was the main thing in my mind.

MR. SCHECK: Dirt on that rear gate?

MR. SIMS: I don't know. Again I didn't look--I looked at it for the location of the blood drop. That was my interest. I didn't study the substrate in particular.

MR. SCHECK: You have been able to conduct RFLP testing on the sample from the rear gate recovered on July 3rd and got seven probes from it?

MR. HARMON: Your Honor, I'm objecting.

MR. SCHECK: To this point?

MR. HARMON: Objection.

THE COURT: Objection. Legal basis?

MR. HARMON: Beyond the scope. We have talked about this yesterday.

MR. SCHECK: Your Honor, he asked about RFLP testing of the rear gate.

THE COURT: I'm going to sustain the objection. I don't recollect. I will have to check my notes.

MR. SCHECK: All right.

MR. HARMON: Would you caution the jury, please, your Honor?

THE COURT: No, no.

MR. SCHECK: You did quantitative calculations projecting the amount of DNA from swatches in the rear gate for purposes of your PCR-based testing?

MR. SIMS: Yes.

MR. SCHECK: And you got three swatches from 117, the rear gate?

MR. SIMS: That's correct.

MR. SCHECK: Weighing 6.2 milligrams?

MR. SIMS: That sounds about right, but let me check that.

(Brief pause.)

MR. SIMS: 6.2 milligrams, yes.

MR. SCHECK: And the weight you extracted was four milligrams?

MR. SIMS: Yes.

MR. SCHECK: Which would be 65 percent of the total?

MR. SIMS: Yes.

MR. SCHECK: And the total amount of human DNA that you extracted was 108 nanograms?

MR. SIMS: That sounds about right. I remember it being about a hundred nanograms.

MR. SCHECK: So based on assumption of random distribution you would project a total of 166 nanograms in 117?

MR. HARMON: Objection. Random is not the same as uniform, your Honor.

THE COURT: Sustained.

MR. SCHECK: Would it be your best estimate that in the swatches you have, you will have something on the order of 166 nanograms in sample 117?

MR. SIMS: 166 sound a little high, but it is in there. 150 I will give you right off the top of my head.

MR. SCHECK: And that is a sample that was collected on July 3rd?

MR. SIMS: Wait. I'm sorry. Did you say 116 now or 117?

MR. SCHECK: 117.

MR. SIMS: 117, okay. Then yes, 150 nanograms sounds about right.

MR. SCHECK: I said 166.

MR. SIMS: I think I thought I heard you say 116.

MR. SCHECK: No, 166.

MR. SIMS: Okay.

MR. SCHECK: Something on that order.

MR. SIMS: No. I thought I heard you say item no. 116.

MR. SCHECK: No, no. I'm talking about item 117.

MR. SIMS: 117.

MR. SCHECK: Your best estimate would be on the order of 166 nanograms of human DNA?

MR. SIMS: Well, I said about 150 off the top of my head, but yes, you are in the right ballpark.

MR. SCHECK: And when you asked, through your quantitative method, the quality of the DNA from 117, you did not find the kind of bacterial degradation that you found on those Bundy drops, did you?

MR. SIMS: No.

MR. SCHECK: That is it.

THE COURT: That is it?

MR. SCHECK: For the day. That is the end of my line on this. I'm going into something different.

THE COURT: All right.

MR. SCHECK: I can't do it in two minutes.

THE COURT: All right. All right. All right. Ladies and gentlemen we are going to take our recess for the afternoon. Please remember all of my admonitions to you. Don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you. Also, do not allow anybody to communicate with you with regard to the case. As far as the jury is concerned, we will stand in recess until nine o'clock. All right. Mr. Sims, you can step down. Tomorrow morning, 8:45.

MR. SIMS: Yes, your Honor.

(At 4:30 P.M. an adjournment was taken until, Friday, May 19, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

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

The People of the State of California,)

Plaintiff,)

Vs.) no. Ba097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Thursday, May 18, 1995

Volume 149 pages 28090 through 28353, inclusive

-------------------------------------------------------------------------------------------

APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

-------------------------------------------------------------------------------------------

I N D E X

Index for volume 149 pages 28090 - 28353 day date session page vol.

Thursday May 18, 1995 A.M. 28090 149 P.M. 28208 149

-------------------------------------------------------------------------------------------

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.

Sims, Gary 149 (Resumed) 28103rh (Resumed) 28005rh

-------------------------------------------------------------------------------------------

ALPHABETICAL INDEX of witnesses witnesses direct cross redirect recross vol.

Sims, Gary 149 (Resumed) 28103rh (Resumed) 28005rh

-------------------------------------------------------------------------------------------

EXHIBITS

COURT'S for in exhibit identification evidence page vol. page vol.

12 - Articles 28099 149 entitled "Chinese Population Data on the PCR-Based Loci HLA DQ-Alpha, Low-Density-Lipoprotein Receptor, Glycephorin A, Hemoglobin Gamma G, D7S8, and Group Specific Component," "Swiss Population Data on Loci HLA DQX, LDLR, GYPA, HBGG, D728, GC, and DS180," "Validation of Population Studies of the Loci, LDLR, GYPA, HBDG, D7S8 and GC (PM loci) and HLA-DQ Using a Multiplex Amplification and Typing Procedure"

-------------------------------------------------------------------------------------------

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

273 - Photograph of 28209 149 an electrophoretogram

218-A - 23-Page document 28187 149 entitled "analyzed evidence report"

-------------------------------------------------------------------------------------------

DEFENSE for in exhibit identification evidence page vol. Page vol.

1159-A thru I - 28226 149 9 prints from slide presentation entitled "cross-contamination factors"

1160-A thru f - 28316 149 photographs depicting the testing of evidence by Gary Sims