Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Good morning, counsel.
MR. SCHECK: Good morning.
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Blasier, Mr. Scheck. The People are represented by Mr. Darden and Mr. Harmon. The jury is not present. All right. Mr. Scheck, are you ready to proceed to a new area?
MR. SCHECK: Yes. Your Honor, are we--just before we do that, we did a chart last night summarizing the answers that Mr. Sims gave in terms of approximations based on the hypothetical, and I would like both Mr. Harmon and--it is going to take ten minutes to print out, but we can project it on the screen.
THE COURT: All right. Let's see it.
(Brief pause.)
THE COURT: All right.
MR. SCHECK: It shows the numbers that he gave and put on a chart.
MR. HARMON: Looks great to me, but I'm not sure what it is designed to represent. It would be helpful if we had some transcript references so we can confirm it. I don't think I'm as agreeable as Mr. Sims. I don't take their word for anything unless it is in there, your Honor, and a timely presentation of this. They had it calculated ahead of time. I don't think it is appropriate to present argumentative material in this way, somewhat like the redundancy. Kind of like doing your taxes yesterday, your Honor, and I think the information is in there, and if they want to have somebody else come in at a later point and explain how this graph was derived from Mr. Sims' explicit answers to these raw hypotheticals that were based on some wildly varying considerations, I think that would be appropriate. But right now on a Friday morning at five after 9:00 to present this graphic when they could have done this ahead of time, I don't think it is appropriate.
MR. SCHECK: Your Honor--
THE COURT: What is the legal basis for your objection?
MR. HARMON: It is irrelevant, under 352, it is misleading. It is argumentative. It is cumulative, that is for sure. I think you intimated as much by your question to Mr. Scheck, "are you ready to move on?" and his answer was "yes," but that is not moving on, your Honor.
THE COURT: Mr. Scheck.
MR. SCHECK: Your Honor, the--one first must get the answers from the witness. I think we established the basis of the hypothetical clearly enough through the witness, that these are the kind of calculations he makes based on the one simple assumption that we gave him with respect to random distribution of the biological specimens. The point is, is that this is complex material and until one gets the answers from the witness and lays everything out, I can't create a chart because it is not in evidence yesterday. All that I'm trying to do here, is this is--this is can be reviewed, but these are the numbers he gave yesterday.
They are just put in the form of a graph. Very clearly labeled approximations based on the Defense hypothetical. I think it is very hard for people, when you elicit over a thirty-minute period different amounts in this fashion, to absorb it just hearing it. They need one simple pictorial representation of exactly what the testimony was, and the difference between direct and cross is that I can't create this until I get the answers from the witness. Now that I've got the answers from the witness, this is an accurate summary in very simple terms of exactly what he said. They are perfectly free on redirect examination to challenge the assumptions in the hypothetical, but this is not non-argumentative and factual representation of what was said yesterday, so just so they can be seen.
THE COURT: As presentation as a piece of evidence, I'm going to sustain the objection. I find the numbers to be not to my recollection.
MR. SCHECK: Well--
THE COURT: If you want to remake the graph to conform with the precise numbers--also, I think that the gradations on it are not sufficiently precise.
MR. HARMON: Your Honor, I--
MR. SCHECK: In other words, at the top it doesn't look like a 150 or something?
THE COURT: It doesn't look like a 150 to me.
MR. HARMON: Well, your Honor--
THE COURT: Let's have the jury, please.
MR. HARMON: There is a brief thing at side bar, if I could take it up. It relates to where we are right now. We can do this in two minutes at the side bar, your Honor.
THE COURT: Why do we have to do it at the side bar? We don't have the jury here.
MR. HARMON: Do you want me to do it right here?
THE COURT: Unless it is a secret.
MR. HARMON: I have no secrets, your Honor. I just--the Prosecution has reason to believe that the Defense visited the crime scene shortly after the crime, has removed part of stain 115, and I would like the Court to--I know there have been in camera discussions about discovery that was provided to you to review and that has been held back in--and I'm not here to quarrel about that, but I think if--
THE COURT: Refresh my recollection. Which stain is 115?
MR. HARMON: 115 is one of these rear gate stains. It is the one that is clearly seen--there was made a big deal at the time of processing. It is clearly seen on the June 13th photograph. It is the only one that is clearly visible in the series of photographs at the crime scene. And the reason there is reason to believe--you know because you have reviewed the discovery that they have provided to you, and you have seen the little bit of information that we have been provided by Defense experts like Dr. Baden and Dr. Lee. In fact, some of these things clearly have been chopped up and segments taken out of it, and if you look and compare the June 13th photograph with the July 3rd photograph--I would be happy to provide these to you--on July 3rd the stain on 115 that you can see on June 13th, it appears--and I'm only looking at this and we've had experts look at this from enhancements--that there is something missing in the July 3rd photograph that was not there on the June 13th photograph. And this Court is well aware of the authority of People versus Meredith that has been affirmed throughout this state, that is 29 Cal.3D 682 at 694, that if the Defense takes possession of physical evidence--I mean that is what this whole thing with the mystery knife was that was played out over many months--they have an affirmative obligation to turn that over. Now, I don't know that that happened, because so much has been withheld from us, but we know they were at the crime scene because we have these scanty notes to that effect. But I would like the Court very simply to assure itself, through in camera discussions or whatever, perhaps rereviewing that, that if they took that evidence, they have an affirmative obligation, and they had it the day they took it, if they took it--I don't know if they took it--but now is the time to start fessing up if they did, and it is clear the implications of that, your Honor.
THE COURT: All right. Mr. Scheck, do you want to address that issue?
MR. SCHECK: The photographs that the Prosecution took on two different days indicates that bloodstain 116, that is there on July 3rd, isn't there on June 13th? Now, everything he said has the fact that there is something on that rear gate.
THE COURT: Mr. Scheck, the issue is, is the Defense in possession of any physical evidence from the crime scene at Bundy?
MR. SCHECK: Is the Defense in possession of any physical evidence? No, not to my knowledge. I--I have no idea what this man is talking about.
THE COURT: All right. Well, then I will ask Mr. Douglas to--because under Meredith if do you have possession of physical evidence, you are obligated to turn that over to the Court.
MR. HARMON: Your Honor, could the Court review--I mean, there are clear things that were chopped up out of order when--I can't remember the date, I think it was June 17th, when they visited the crime scene. They were clearly there. And I would like the Court to make its own inquiry and rereview that material, and I will clearly abide by that, but it is clear we do not have everything that was in those notes and the sequence of the chopping is very intriguing.
THE COURT: Well, Mr. Douglas is the person in charge of the discovery matters for the Defense. Mr. Douglas, I will direct you to make an inquiry, search of your records, and report back to the Court on Monday.
MR. DOUGLAS: Yes, your Honor.
MR. SCHECK: Your Honor, we have a new chart just for a second.
THE COURT: All right. Let's have the jurors.
MR. SCHECK: Do you want to see the new chart?
THE COURT: No.
MR. HARMON: I have not seen it, your Honor.
MR. SCHECK: I think they just put the numbers in, so it is clear.
THE COURT: Let's proceed. 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, would you 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: All right. Good morning, Mr. Sims.
MR. SIMS: Good morning, your Honor.
THE COURT: Mr. Sims, you are reminded you are still under oath. And Mr. Scheck, you may continue with your cross-examination.
MR. SCHECK: Thank you, your Honor. Good morning, ladies and gentlemen of the jury.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MR. SCHECK
MR. SCHECK: Good morning, Mr. Sims. How are you this morning?
MR. SIMS: Good morning. I'm fine.
MR. SCHECK: We left off yesterday talking about the amounts of DNA in samples found at the Bundy crime scene, some from June 13th, some from July--one from July 3rd.
MR. SIMS: Yes.
MR. SCHECK: Now, in terms of RFLP testing, your protocol indicates that would you like to have as much as 150 nanograms to do an RFLP test?
MR. SIMS: Well, we would like to have even more than that if we could get it. It makes the turn-around time a lot faster.
MR. SCHECK: But the statement in your protocol is that your--you are ideally looking for at least 150 nanograms?
MR. SIMS: No. I believe that--that misstates the protocol.
MR. SCHECK: You tell me.
MR. SIMS: Well, what we would like to have is at least 50, but if we had our druthers, we would like to put, say, about 400 on the gel.
MR. SCHECK: Uh-huh. But it would be a fair statement that 50 nanograms is about as low as you like to go with an RFLP test?
MR. SIMS: With--with some of the newer probes we are even getting down into the 25 nanogram range. Dr. Budwole from the FBI has recently published an article in which one of the newer probes, dF5S110 was shown to be as sensitive as down to 25 nanograms, maybe even ten nanograms, so that sensitivities have been improved on some of the probes, but, yes, ideally we would like about 50 at minimum.
MR. SCHECK: Well, you recall discussing these issues in August?
MR. SIMS: Yes, I do.
MR. SCHECK: And in August did you indicate that 50 nanograms is about as low as we like to go with the RFLP procedures? In other words, the sensitivity is pretty weak below 50 nanograms?
MR. SIMS: Yes.
MR. SCHECK: Now, would you agree that in a drop of blood there is about a thousand nanograms of human DNA?
MR. SIMS: Yes. The recovery would be--in a drop of blood would be about a thousand nanograms, which is about a microgram of DNA, yes.
MR. SCHECK: And in a microliter of DNA you would have--expect to find about 20 nanograms?
THE COURT: Microliter of DNA.
MR. SCHECK: Microliter of blood, my apologies.
MR. SIMS: In a microliter of blood, yes, it would be about 20 nanograms.
MR. SCHECK: And a microliter of blood would produce a spot about the size of a pin head?
MR. SIMS: Yes.
MR. SCHECK: So these Bundy drops at best, 52, has the human DNA equivalent to a pin head's worth of blood?
MR. HARMON: Objection, that is argumentative. It is vague.
THE COURT: Rephrase the question.
MR. SCHECK: All right. Assuming that no. 52--that is the LAPD item number from which the RFLP was performed.
MR. SIMS: Okay.
MR. SCHECK: Is that right?
MR. SIMS: Yes.
MR. SCHECK: Assuming that that has on the order of 25 to 30 nanograms of human DNA--
MR. HARMON: Objection. That is an improper hypothetical, inconsistent with the testimony.
THE COURT: Sustained.
MR. SCHECK: All right. Assuming it has something on the order of 31.5 nanograms of human DNA--
MR. HARMON: Same objection.
THE COURT: Sustained.
MR. SCHECK: Well, you would agree that 20 nanograms would come from one microliter of blood?
MR. SIMS: One fresh microliter of blood, not necessarily a bloodstain.
MR. SCHECK: Right. One fresh microliter of blood?
MR. SIMS: Right.
MR. SCHECK: And that is the size of a pin head?
MR. SIMS: That is right, but now you are talking about a volume of blood, as opposed to if you were to spot about--I think I mentioned yesterday, if you were to look at a bloodstain of about a millimeter by a millimeter, which is about a pin head, you would usually recover about two nanograms, so it is the recovery is not always the same. I mean, it is one thing to talk about a stain and how much DNA you would get out of a stain versus if you were to look at the DNA in a volume of liquid blood.
MR. SCHECK: Right.
MR. SIMS: There is a difference.
MR. SCHECK: There is a difference, and the difference is--has to do with the DNA contents of the volume you are dealing with?
MR. SIMS: Well, it is--no. What I'm trying to distinguish a volume of liquid whole blood--
MR. SCHECK: Yes.
MR. SIMS: --and what you can extract out of that versus what you typically would get out of a bloodstain on a garment or something like that.
MR. SCHECK: But the point is, is that to the extent that you put an amount of--you extract DNA from an amount of blood, right?
MR. SIMS: Yes.
MR. SCHECK: The amount of DNA you can get out of the amount of--the volume of blood is dependent on the number of cells within that volume of blood from which you can extract DNA?
MR. SIMS: Yes.
MR. SCHECK: And if you have blood with a comparatively high content of DNA per volume, you are going to get a bigger yield?
MR. SIMS: Yes.
MR. SCHECK: And so if you cross-contaminate a degraded sample with blood that has more DNA, you are going to get a bigger yield from the contaminant that has a greater amount of DNA in that volume of blood?
MR. HARMON: Objection. That misstates the testimony and it is compound.
THE COURT: Overruled.
MR. SIMS: I'm not sure I understand that question.
MR. SCHECK: All right. Let's try it again. You have a degraded sample, okay?
MR. SIMS: Okay.
MR. SCHECK: Well, let's do it this way: There are volumes of blood that have higher DNA content than other volumes of blood?
MR. SIMS: Yes. We saw that in this case, for example, with the reference sample.
MR. SCHECK: And so if there is a transfer of a volume of blood with a high natural content on to a sample where the DNA has been degraded to the point where it is not detectable--are you with me?
MR. SIMS: Yes.
MR. SCHECK: --you are going to get a yield in terms of nanograms of DNA that might be, for example, higher than you would expect to find on a blood swatch that had been degraded?
MR. SIMS: Yes. I think I understand. I was following you well until the very end there. Are you saying that if you took a blood volume of liquid from a person that had a high level of DNA and then that got onto the degraded stain, then that would be higher than if you took a person that had a lower level of DNA to begin with and got that onto the stain?
MR. SCHECK: Going back to that whole discussion we had yesterday, remember the charts about some volumes of blood have higher DNA content than others?
MR. SIMS: Well, I think what you are saying is some people at different times their bloods are different. For example, you may have more white blood cells than I have. Is that what you are saying.
MR. SCHECK: No, no.
MR. SIMS: Okay. I'm lost.
MR. SCHECK: I'm talking about you agreed, I think you are saying, that you would expect to find, for example, in a reference tube, in the volume of blood in a reference tube, higher yield of DNA content from a volume than you would from a stain that had been picked up off a dirty substrate and put in a plastic bag and degraded for seven hours, right?
MR. SIMS: Oh, yes, yes. The answer to that is yes.
MR. SCHECK: Okay. So when you take blood from samples that have a higher DNA content, assume the blood has a higher DNA content, you cross-contaminate it onto something else that has virtually no DNA content or not a detectable DNA content, you are going to get the yield from the volume of blood that has the higher DNA content?
MR. HARMON: Objection, compound, and it is unintelligible.
THE COURT: Do you understand the question, Mr. Sims?
MR. SIMS: Actually that one I think I do.
THE COURT: All right. Go ahead.
MR. SIMS: I think the answer to that is yes.
MR. SCHECK: Thank you. Okay.
MR. SCHECK: You talked yesterday about substrate controls?
MR. SIMS: Yes.
MR. SCHECK: And Mr. Harmon asked you a lot of questions about that. Do you recall those?
MR. SIMS: Yes, I do.
MR. SCHECK: All right. And one purpose you talked about of a substrate control is to swatch a section near a stain in order to see if there is some cellular material near that stain?
MR. SIMS: Yes. In other words, if there may be some background DNA that may contribute to what you might see in a stain.
MR. SCHECK: Right. But you were suggesting that a substrate control could also serve another purpose in terms of being--giving us some information about the possibility of cross-contamination in the handling of samples?
MR. HARMON: Objection, it is argumentative what he was suggesting.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. Were you asked a series of questions yesterday by Mr. Harmon and you gave answers indicating that you thought the substrate controls could be looked at to give us some information about the possibility of cross-contamination in the handling of samples?
MR. SIMS: Well, I--
MR. HARMON: Objection. I don't remember what the basis was, your Honor. That is misleading. That misstates his testimony of yesterday.
THE COURT: Overruled.
MR. SIMS: Well, I think it doesn't just give you some information. I think it gives you a great deal of information about how those samples were processed.
MR. SCHECK: All right. You were asked questions about--well, I forget how you were asked questions. Let's try it this way: You gave testimony that the substrate controls might give us information about whether or not laboratory criminalists, when they handled the swatches at the crime laboratory, cross-contaminated samples?
MR. SIMS: Yes.
MR. SCHECK: And that would include the point where the swatches were taken out of--were wet and taken out of the plastic bags with the test-tubes?
MR. SIMS: Yes. Assuming they went through the entire process.
MR. SCHECK: And it would include the portion of the process where the wet swatches were put into the test-tubes?
MR. SIMS: Yes.
MR. SCHECK: And it would include the part of the process where the next morning the swatches were taken out of the test-tubes with the pipette?
MR. SIMS: Yes, assuming they all went through the same possess.
MR. SCHECK: And it would include that part of the process where the swatches were then folded into the bindles?
MR. SIMS: Again, the same answer.
MR. SCHECK: All right. Now, looking at that portion of the process, your--the answers you gave yesterday to the questions were based specifically on the assumption that the substrate controls, I think these were your words, were systematically alternated between the specimen sample and the substrate controls?
MR. SIMS: I believe that was my understanding.
MR. SCHECK: You used the word "systematically alternated," correct?
THE COURT: Wait, wait, wait.
MR. SCHECK: I thought he finished.
THE COURT: You walked over his answer. He wasn't finished yet.
THE COURT: Also, Mr. Sims, take a breath before you start answering his questions.
MR. SIMS: All right.
THE COURT: Proceed.
MR. SCHECK: Thank you.
MR. SCHECK: And you--
MR. SIMS: Yes, I--my answer was that my understanding was that they were systematically taken in these steps.
MR. SCHECK: Well, let's put it another way. You were basing your answers on the assumption that the criminalist systematically alternated between handling the specimen, then the substrate control, then the series of specimen swatches, the substrate control, the series of specimen swatches, the substrate control, et cetera, right?
MR. SIMS: Yes.
MR. SCHECK: And the reason that that is--and that is the critical assumption to your notion that these substrate controls can tell us--give us information about cross-contamination?
MR. HARMON: Objection. That misstates his testimony, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. The idea of a control giving you information about cross-contamination is that the control must be handled in parallel or in the same way that you handled the specimens.
MR. HARMON: Objection, that is vague. What context, your Honor?
THE COURT: Overruled.
MR. SIMS: Well, my answer to that would be that whenever you are processing samples, whether it be stains, substrate controls, stains, one does look to the order of the processing, because if the inference is that something here cross-contaminated the next one, then it doesn't make sense that this one down here was cross-contaminated from something up here. Do you understand what I'm saying?
MR. SCHECK: Right. Oh, precisely, and that is the reason your--that is the reason that you are saying that one might be able to draw conclusions about cross-contamination, is because you are assuming that there was systematic alternation in the handling of the specimens? In other words, the substrate controls were handled in parallel in a systematic alternation with the specimens?
MR. HARMON: Objection. It is vague in terms of what is in parallel in what part of the process we are talking about.
THE COURT: Overruled. Do you understand the question?
MR. SIMS: I think I do. I think if you are talking about just the substrate controls, then the alternation is part of that. What I was talking about, too, though, is--is that you are looking at how things are processed and the idea of what could potentially get contaminated down the line.
MR. SCHECK: But your--
MR. SIMS: So that would be stain, stain, stain, too.
MR. SCHECK: But your answers yesterday, you used the word with respect to the questions, you are assuming that the substrate controls and the specimens were handled with a systematic alternation?
MR. SIMS: Yes.
MR. SCHECK: Now--
MR. HARMON: Objection, your Honor. That is vague in terms of if there are different terms that have--
THE COURT: Overruled. We have asked that.
MR. SCHECK: Let's talk about--let's just talk about just, for example, a reagent control.
MR. SIMS: Okay.
MR. SCHECK: The reagent control is the one where you are at the point of extraction in the PCR process?
MR. SIMS: Yes.
MR. SCHECK: And you are putting into the tubes the different reagents that go into the PCR mix?
MR. SIMS: Yes.
MR. SCHECK: So you have one tube, for example, that has the--maybe a specimen that has a swatch with blood on it?
MR. SIMS: Okay.
MR. SCHECK: Is that what happens?
MR. SIMS: Yes. The only thing I think we mixed up on was when you mentioned the PCR mix. You are actually talking about the extraction now.
MR. SCHECK: All right. Yes. It is--
MR. SIMS: The extraction.
MR. SCHECK: I'm talking about the stuff you put into the tube.
MR. SIMS: Okay. This is now to get the DNA out of the samples?
MR. SCHECK: Yes.
MR. SIMS: So that is an extraction.
MR. SCHECK: Okay.
MR. SIMS: Okay.
MR. SCHECK: But the reagent control is that you take a tube without any swatch in it and you put the reagents in it, right?
MR. SIMS: Yes.
MR. SCHECK: And when you do that, you do it in parallel with all the other specimens?
MR. SIMS: Well, you are actually doing it in sequence.
MR. SCHECK: In sequence, right?
MR. SIMS: Yes.
MR. SCHECK: In other words, you are going to make sure that you are taking the reagents to make up this control from the same batch, same lots, the same time, as you are creating the reagents for the other tubes, right?
MR. SIMS: Yes.
MR. SCHECK: And that is what gives you some confidence that the control would work, because you are running that reagent control in parallel or handling in the same way that you are handling all the other specimens?
MR. SIMS: Yes.
MR. SCHECK: And that is what gives you the information about whether or not there may be some contaminant in the reagents that were used?
MR. SIMS: Yes.
MR. SCHECK: So it would--it would be of no particular use if you took the reagents from a run you did in the afternoon and then used--and ran that one, that wouldn't tell you about whether you had contamination on a previous run, would it?
MR. SIMS: Well, I'm not sure I understand that, because aren't we talking about the same reagents?
MR. SCHECK: Well, that would be the question. Are we talking about the--let me--let me get it in another way.
MR. SIMS: Okay.
MR. SCHECK: If the substrate controls here were not handled with systematic alternation--are you with me?
MR. SIMS: As far as the evidence processing now?
MR. SCHECK: As far as the handling of the evidence is concerned, all right?
MR. SIMS: Yes.
MR. SCHECK: And let's say that a series of specimen swatches were handled in a batch.
MR. SIMS: Okay.
MR. SCHECK: And maybe a series of control swatches were handled in a batch.
MR. SIMS: Okay.
MR. SCHECK: That would not be the kind of systematic alternation you were talking about yesterday?
MR. HARMON: Objection, improper hypothetical, misstates the testimony.
THE COURT: Overruled.
MR. SIMS: In other words, if the substrate controls were processed entirely differently from the swatches themselves? Is that what you are saying?
MR. SCHECK: Well, the--we don't need the word "entirely." let's just say some of them were handled in a batch together and a series of specimen items were handled in a batch together.
MR. HARMON: Objection. That is vague. Together with what?
THE COURT: Overruled.
MR. SIMS: Does this--I guess what I'm confused on is do you mean now in the collection process also or are you talking about just in the laboratory or--
MR. SCHECK: I'm talk--let's just focus. I'm sorry, I didn't mean to cut you off. Let's just focus on handling in the laboratory.
MR. SIMS: Okay.
MR. SCHECK: And the substrate controls were not handled with systematic alternation as you discussed yesterday.
MR. SIMS: Okay.
MR. SCHECK: Would that not undermine the value of the substrate controls in terms of giving us any information about cross-contamination in the handling of the specimens?
MR. SIMS: I think it would--you would have to say you don't have as much information there, that is true.
MR. SCHECK: And in order to make sure that a substrate control is serving as more than just a control about what came from the substrate, but as a control about--a control that gives you information about cross-contamination, it would be a good thing if the criminalists involved understood that the substrate control would serve that function?
MR. HARMON: Your Honor, objection. It is irrelevant, beyond the scope of direct.
THE COURT: Overruled.
MR. SIMS: Yes.
MR. SCHECK: Because you are counting on the criminalists involved to carefully systematically alternate their handling of the specimen samples and the substrate controls?
MR. SIMS: Well, no. I'm counting on the criminalist to do everything that the criminalist does in a careful fashion. What you are asking me is can I make as much inference about how these things were handled retroactively given a particular nature? Yes. I mean, that is--I'm not counting on that as much as I'm counting on them handling it in a careful fashion all the way down.
MR. SCHECK: You are counting on them handling it in a careful fashion and doing systematic alternation. That was the way you answered the questions yesterday?
MR. SIMS: No. I'm saying if you are going to place that great reliance on those substrate controls, on the negative results from the substrate control, if you are going to use that as an inference that then these things were processed properly, then that is correct. On the other hand, just because that wasn't done, it doesn't mean they weren't done properly.
MR. SCHECK: Well, the--you would agree that to do this it would be useful to ensure that there really was systematic alternation in the handling of the substrate controls and the specimens if the criminalist performing that operation knew that it was important to systematically alternate?
MR. SIMS: Yes.
MR. SCHECK: And systematic alternation of the substrate controls as a check on cross-contamination should continue not just in the handling of the samples in the laboratory, but through the process where you extract the DNA?
MR. SIMS: Yes.
MR. SCHECK: And it should continue in the process of sending substrate controls of--of cutting up specimens and substrate controls and sending them to other laboratories?
MR. HARMON: Objection. That is argumentative, your Honor.
THE COURT: Sustained. It goes beyond the scope of direct.
MR. SCHECK: Let's try this.
(Brief pause.)
THE COURT: Which board is this, Mr. Scheck?
MR. SCHECK: That was my mistake. It is exhibit no. 177-C, "LAPD evidence disposition summary."
(Brief pause.)
MR. SCHECK: Now, the Los Angeles Police Department sent you, DOJ, sample 47, the Bundy swatch on August 12th, 1994?
MR. SIMS: I believe that's correct, yes.
MR. SCHECK: And they sent you on August 12th, 1994, sample 48, another--some Bundy swatches, right?
MR. SIMS: Yes.
MR. SCHECK: And 49 on August 12th, `94, they sent you Bundy swatches, right?
MR. SIMS: Yes.
MR. SCHECK: And on August 12th they sent you no. 50, some Bundy swatches?
MR. SIMS: Yes.
MR. SCHECK: And they actually sent--now, 52 was at cellmark, right? You didn't get that on August 12th?
MR. SIMS: That's correct.
MR. SCHECK: But looking at this board you see these--these logos where that is the swatch with red, that represents the bloodstain swatches?
MR. SIMS: Yes.
MR. SCHECK: They didn't send you the substrate controls until September 7, 1994, for sample 47, 48, 49 or 50?
MR. SIMS: That's correct.
MR. SCHECK: In fact, Mr. Sims, didn't you call the people at the Los Angeles Police Department and say, "send me the substrate controls because substrate controls ought to be handled with systematic alternation with the specimens as a protection against cross-contamination"?
MR. SIMS: I'm sure I didn't use those words, but I--as I recall, I'm--a little bit of history here. This case originally started out looking as an RFLP case because those swatches from the Bundy crime scene looked like very good bloodstains to work with in their appearance--
MR. SCHECK: Mr. Sims, let me--I don't mean to--to be impolite to you at all, forgive me, but I think the answer is not responsive.
MR. HARMON: Motion to strike, your Honor. I object to the speech, your Honor.
MR. SCHECK: Move to strike his answer as nonresponsive.
THE COURT: Why don't you answer the question.
MR. SCHECK: My question is, sir, a very simple one. Did you ask the Los Angeles Police Department to send you the substrate controls in--after you had first received the specimen controls without the substrate controls?
MR. SIMS: I don't know if I asked the LAPD or if I put that request through Lisa Kahn of the District Attorney's office.
MR. SCHECK: So in other words, you put the request into the District Attorney's office to pass on to the LAPD to ask them to send you the substrate controls?
MR. SIMS: I may have done that, yes. I don't know if--I may have spoken to LAPD. I can't recall who I contacted.
MR. SCHECK: The point is, sir, you wanted the substrate controls, didn't you?
MR. SIMS: Yes, I did.
MR. SCHECK: And you wanted the substrate controls because when you were performing DNA analysis you were going to make sure to systematically alternate your handling of the substrate controls and the specimen items?
MR. SIMS: No, that is not true. The reason I wanted the substrate controls was because there was clearly a PCR issue and I wanted to make sure that we had negative substrate controls to make the proper interpretations of the bloodstains.
MR. SCHECK: When you got the substrate controls in September and you went through the rest of the analysis, you would treat the substrate control in parallel with the specimen when performing your DNA analysis?
MR. SIMS: Well, for most of this evidence I did, but I did some processing of those early samples without the substrate controls.
MR. SCHECK: Because you didn't have them?
MR. SIMS: Because I did not have them.
MR. SCHECK: And if you had them you would have processed the substrate controls in the same fashion that you processed the specimens?
MR. SIMS: Yes, I would.
MR. HARMON: Objection. "in the same fashion" is vague, your Honor.
THE COURT: Overruled.
MR. SCHECK: Thank you.
(Brief pause.)
MR. SCHECK: Now, talking about the issue of substrate controls, you performed analysis on Mr. Goldman's shirt?
MR. SIMS: Yes, I did.
MR. SCHECK: Actually I think I'm finished with this board.
(Brief pause.)
MR. SCHECK: Maybe while I'm playing with the board, could you maybe turn to your notes on that item.
MR. SIMS: Okay.
(Witness complies.)
MR. SCHECK: That would be LAPD item 81.
MR. SIMS: Yes.
MR. SCHECK: And you attempted to take a substrate control from the shirt?
MR. SIMS: Well to--
MR. SCHECK: To cut one, I should say?
MR. SIMS: The correction on that would be that LAPD submitted a substrate control along with cuttings from the shirt, so I tested the cuttings.
MR. SCHECK: Okay. So in other words, they cut an area which was labeled "substrate control" from the shirt; is that correct?
MR. SIMS: Yes.
MR. SCHECK: And you performed a PCR analysis of that substrate control?
MR. SIMS: Actually that was performed by Renee Montgomery, but our laboratory did, yes, it was for D1S80 PCR marker.
MR. SCHECK: And you got a result of 18, 18 for that substrate control?
MR. SIMS: We characterized that as a trace of the 18 allele, yes.
MR. SCHECK: And that would be a genotype consistent with the DNA from Nicole Brown Simpson?
MR. SIMS: Yes, it would.
MR. SCHECK: And that is on Mr. Goldman's shirt?
MR. SIMS: Yes.
MR. SCHECK: And did you examine the substrate control itself, that cutting?
MR. SIMS: Yes, I believe I did.
MR. SCHECK: And did you see what appeared to be blood flakes on that shirt?
MR. SIMS: Yes. My notes on page 158 indicate that.
MR. SCHECK: So in other words, in the substrate control on Mr. Goldman's shirt you found flakes of blood which, using PCR typing, you were able to determined a result that was consistent on the D1S80 system with Nicole Brown Simpson?
MR. SIMS: Yes.
MR. SCHECK: Now, would that be consistent with--withdrawn. You talked about how substrate controls can be evidence of samples being cross-contaminated?
MR. SIMS: Yes.
MR. SCHECK: Would this finding you made on the substrate control be evidence that Mr. Goldman's shirt had been cross-contaminated with clothing from Nicole Brown Simpson?
MR. HARMON: Objection, calls for speculation; no foundation, improper hypothetical.
THE COURT: Overruled.
MR. SIMS: The--can you repeat exactly what you were saying?
MR. SCHECK: Sure.
MR. SCHECK: Would this finding on the substrate control of Mr. Goldman's shirt be consistent with there having been a cross-contamination with this shirt and clothing of Nicole Brown Simpson that had her blood on it?
MR. SIMS: Would it be consistent with that? In other words, is that a possibility?
MR. SCHECK: Yeah.
MR. SIMS: Well, I would say that is one possibility, yes.
MR. SCHECK: Other possibilities are that Mr. Goldman's body was dragged across the crime scene into an area where it came into contact with blood from Nicole Brown Simpson?
MR. HARMON: Objection, improper hypothetical.
THE COURT: Sustained.
MR. HARMON: Calls for speculation.
MR. SCHECK: On--you also got a control--did you--with respect to Nicole Brown Simpson's dress--
MR. SIMS: Yes.
MR. SCHECK: --did you receive a substrate control cuttings or did you make some?
MR. SIMS: On that particular item, I sampled--I did the sampling. I did not take a substrate control on that particular item because it was very bloody. The entire garment was--appeared to have blood and it would seem to be hard to find an area with absolutely no blood on it.
MR. SCHECK: But you did take three cuttings labeled G3, G5--G3, G5 and what would be the other one?
MR. SIMS: How about G6 maybe.
MR. SCHECK: Yeah. And these were cuttings from around the right shoulder area?
MR. SIMS: Yes, the right upper back.
MR. SCHECK: And you performed a D1S80 analysis on those cuttings, or Miss Montgomery did?
MR. SIMS: Yes.
MR. SCHECK: And you got a finding of an 18 allele and a 24 allele?
MR. SIMS: We--on one of the cuttings, G3, it was an 18 allele with a weaker 24 allele, indicating a mixture. On G5 and G6 the type it was determined to be 18, 18 with a trace of the 24th allele.
MR. SCHECK: And that would--that mixture would be consistent with DNA typings of Nicole Brown Simpson, which for D1S80 are 18, 18?
MR. SIMS: Yes.
MR. SCHECK: And traces of--of DNA from Ronald Goldman whose type for the D1S80 system is 24, 24?
MR. SIMS: Yes.
MR. SCHECK: Your Honor, I have another question that I want to ask this witness, but before I do I think I need to seek some guidance from the Court.
THE COURT: All right. With the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We are over at the side bar. Where are you going with this?
MR. SCHECK: I have a question that I'm fearful night open a door, so I want to explain what the issues are and I'm going to seek a preliminary ruling from the Court to see whether I should go into this area or not. There were--I think there were two--there was a specimen taken from no. 11, the wire, at Rockingham.
THE COURT: Uh-huh.
MR. SCHECK: There was some specimen swatches that were labeled no. 11 specimen and then there were swatches taken from the wire that were labeled control. When Mr. Sims examined these, both of them appear to be grayish whitish swatches; however, he performed a--what they call an otolidine test which is another form of the presumptive blood test, and when he performed that presumptive blood test he got a positive finding for the swatch that was in the control bindle, but he got a negative finding for the swatch that was in the specimen bindle. The question that I want to ask him is simply was there--when he was examining the sample, the specimens, bindles from LAPD, was there an item where he had concerns that the control sample had been put in the specimen bindle and the specimen had been put in the control bindle. Now, there were no other tests that were done or could be done on these swatches to confirm whether or not it was blood.
THE COURT: Okay.
MR. SCHECK: Now, if I ask him those questions and he answers, yes, I had a concern and my concern was in no. 11 because the information I had was that there was--it was a concern that they had mixed up putting the specimen in the specimen bindle and the control in the--the specimen in the control bindle and vice versa, is that going to open the door to allowing them to ask or even having the witness say that they performed a presumptive test on the swatch indicating it was blood, even though there is no confirmatory tests on this blood.
THE COURT: Mr. Harmon.
MR. HARMON: Well, I don't think it will open a door, it will blow it off the hinges and knock off the dead bolt, but other than that, other than being beyond the scope of direct examination, it clearly allows us to go back to the positive phenolphthalein on the sink drain, that in spite of all the other door openings that they did before you refused to let us get into, so beyond the scope and blowing the door off the hinges are two things to keep in mind, your Honor.
MR. SCHECK: Certainly not beyond the scope on the issues of controls, but--and the ability to use them. My concern really was for the Court to make a ruling. I certainly expected Mr. Harmon to say it would open the door. My concern is whether the Court believes it would open the door. I would propose to ask the witness just the question did you have reason to believe that there was a mispackaging of control specimens with respect to one item and which one was it? No. 11?
THE COURT: All right. The problem, though, is first of all, that that opens up I think legitimately going into what was done--the Prosecution would be entitled to explain what actual testing was done on that particular swatch and what the results were, which I think we all agree are not really relevant to the circumstances of this particular case, so looking at the totality of the case here, the probative value of what you are offering and the consumption of the time that would be taken up by the Prosecution then explaining what this is, I'm going to sustain the objection under 352. Also notice and give you caution that if you go into it, that then we are going to get into what the presumptive testing was, not necessarily the bathroom stain--I mean the bedroom--bathroom drain, but certainly on the wire itself.
MR. COCHRAN: Okay.
MR. SCHECK: Okay. So incidentally just on, you know--thank you. I just wanted to make sure.
THE COURT: All right.
MR. SCHECK: The other thing, just to--please don't hold me completely to this, but just to in terms--I knew you mentioned undue consumption of time. I think I have a pretty firm grasp on how long this witness is going to take me in fear of his vacation. I will be with him this morning and I think I will be with him probably Monday morning, maybe not the whole morning, but Monday morning. That is my best estimate.
THE COURT: Okay.
MR. SCHECK: Then that is it, so just to give you a sense.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Yes, yes. We--I do want--we have another chart.
MR. COCHRAN: Modified.
MR. SCHECK: Modified chart.
THE COURT: Well, maybe at the break.
MR. SCHECK: Okay. When are we breaking? At 10:30?
THE COURT: Yes, and only for ten minutes.
(Brief pause.)
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Mr. Scheck, you may proceed.
MR. SCHECK: Thank you, your Honor.
MR. SCHECK: Mr. Sims, you discussed yesterday a study by the Federal Bureau of Investigation concerning efforts to induce cross-contamination in the handling of samples?
MR. SIMS: Yes.
MR. SCHECK: I think at one point you talked about how this FBI study, they had FBI agents coughing over samples?
MR. SIMS: Well, I don't know that they were FBI agents. I think they were actually laboratory people that were not necessarily agents, but yes.
MR. SCHECK: Laboratory people working for the FBI?
MR. SIMS: Well, I--I believe that work was done mainly by Dr. Comey who is an employee of the FBI, and I think it was a woman by the name of Pamela Fish who I believe is with the Chicago Police Department. I think those are the two that did those experiments.
MR. SCHECK: Now, is there--to your knowledge there is no such thing as a standardized cough by either FBI employees or employees of the Chicago Police Department?
MR. SIMS: No, not that I am aware of.
MR. SCHECK: But there is a difference between a cough and a sneeze, isn't there?
MR. SIMS: Yes.
MR. SCHECK: And a sneeze is more likely--forgive my bringing up the details of this, but to--to give you an effluent or a spray than a cough?
MR. SIMS: It could, yes.
MR. SCHECK: And to your knowledge they didn't even--they did not sneeze on any samples?
MR. SIMS: To my knowledge I don't recall that being in the table, no. I think it was more of a cough.
MR. SCHECK: Now, there was discussion in that study of saliva?
MR. SIMS: Yes.
MR. SCHECK: And they did find that saliva, mixed with blood, that actually the amount of DNA that you will get from the saliva mixture is two times the amount that you would get from the blood?
MR. SIMS: I don't recall it being two times, but yes, the saliva could make a big contribution.
MR. SCHECK: And scientifically that makes sense to you, doesn't it, because saliva, in terms of its volume, has a higher concentration of DNA than blood?
MR. SIMS: Well, I think saliva can have a lot of DNA in it because of the cells that line the mouth, but there is a tremendous variation, just as there is from cough to cough, from spit to spit.
MR. SCHECK: Well, in general, no matter who--if you compare somebody's spit to somebody's blood, right, in equal volumes, you are going to find more DNA in the spit than the blood?
MR. SIMS: You may well find more, but again, it varies.
MR. SCHECK: Well, in blood, the DNA comes from the white cells?
MR. SIMS: That's correct.
MR. SCHECK: And the--but over fifty percent of the cellular material in blood is red cells?
MR. SIMS: Yes, something like that--what did you say? Yes, well over fifty percent.
MR. SCHECK: Well over fifty percent?
MR. SIMS: Yes.
MR. SCHECK: And the red cells do not have a nucleus?
MR. SIMS: That's correct.
MR. SCHECK: So they don't have DNA in them?
MR. SIMS: That's correct.
MR. SCHECK: And the DNA in the blood comes from the white cells?
MR. SIMS: Yes.
MR. SCHECK: And that is about one percent of the cellular material in blood?
MR. SIMS: Something like that, yes.
MR. SCHECK: And just to illustrate it, the kind of things you do in the laboratory, there is something called a centrifuge?
MR. SIMS: Yes.
MR. SCHECK: And so you would take like a test-tube of blood and you would spin it around?
MR. SIMS: Yes.
MR. SCHECK: And what would happen is that the cellular material would go to the bottom of the tube?
MR. SIMS: Well, the red cells tend to sediment and then the white cells tend to form a layer on top.
MR. SCHECK: Right. So you see a sediment of the red cells at the bottom of the tube?
MR. SIMS: Yes, and occupying a lot of the tube at that point.
MR. SCHECK: And then there is a thin film that I think people in your line of work call a buffy coat?
MR. SIMS: Yes. That is called the buffy coat.
MR. SCHECK: And that is where you will have the white blood cells?
MR. SIMS: Yes.
MR. SCHECK: There is some sort of yellowish material that is the serum, the platelets?
MR. SIMS: Yes, the serum is the plasma.
MR. SCHECK: Let's take a centrifuge tube and spin it around with saliva.
MR. SIMS: Okay.
MR. SCHECK: And at the bottom of that you would see a sediment of the epithelial cells, right?
MR. SIMS: Yes.
MR. SCHECK: The epithelial cells are the cells from skin?
MR. SIMS: Also they are the ones that line the mouth.
MR. SCHECK: The inside of the mouth?
MR. SIMS: Right. They are different from the ones that would be on your epidermis, for example.
MR. SCHECK: Right. And the epithelial cells that you get from the saliva, if you looked at the bottom of the test-tube, that would be what you would see at the bottom?
MR. SIMS: Yes.
MR. SCHECK: And so if you were to just take a volume of blood and a volume of saliva, typically, right?
MR. SIMS: Yes.
MR. SCHECK: Spin it around in those tubes, right?
MR. SIMS: Yes.
MR. SCHECK: You look at that buffy coat which would be the amount of the white cells or the amount of DNA you could get out of that volume of blood, right?
MR. SIMS: Right.
MR. SCHECK: And typically compare it to the other two where you would have the cells from--the epithelial cells from the saliva, right?
MR. SIMS: Yes.
MR. SCHECK: In the same volumes, you would expect to see more DNA from the epithelia cells than the saliva, typically?
MR. SIMS: Well, the problem with--with saliva is it is not like blood. Blood tends to be more typical in that when you draw it out of the arm, people's blood tend to all look alike. Their DNA might vary, but they tend to look alike. But saliva varies because we take saliva from suspects and victims in sexual assault cases, so you look at these things and you see a lot of variations, but there can be--to make this short, there can be a significant amount of epithelial cells in saliva.
MR. SCHECK: Right. So to get back to our FBI study--right?
MR. SIMS: Okay.
MR. SCHECK: --you would be more likely to find epithelial cells from the effluent of a sneeze, wouldn't you, than a cough?
MR. SIMS: Well, if--if--I mean, you have to remember some people, when they cough, they really hack a lot, and so they may be producing a lot of phlegm.
MR. SCHECK: Well, all right. Well, let's--getting to the bottom line here, in terms of this FBI study, you think it might have been a reasonable idea, instead of having some undefined kind of coughing, to have somebody sneeze?
MR. SIMS: Yes.
MR. HARMON: Objection, it is irrelevant.
THE COURT: Overruled. The answer will stand. Proceed.
MR. SIMS: Yes, I think--
MR. SCHECK: Now--
MR. SIMS: Okay.
MR. SCHECK: --talking again about the FBI study, bottom line here, the samples involved in that study, right, the--the samples that they were looking at in terms of trying to see whether they were cross-contamination did not involve degraded samples, did it?
MR. SIMS: That's correct. That is my understanding.
MR. SCHECK: And the discussion that we have been having here has to do with the possibility of cross-contamination of one set of samples that are degraded?
MR. SIMS: Yes.
MR. SCHECK: Now, you gave some testimony about false positives versus--
MR. SIMS: Yes.
MR. SCHECK: --versus false negatives?
MR. SIMS: Yes.
MR. SCHECK: And you were asked is it your opinion that a typing error in the from process is more likely to result in a false exclusion than an inclusion?
MR. SIMS: Generally, yes.
MR. SCHECK: Well, that was the question you were asked yesterday, if you recall?
MR. SIMS: Yes.
MR. SCHECK: Now, your experience is in forensic DNA typing?
MR. SIMS: Yes.
MR. SCHECK: And I take it that your answer was based on your experience in forensic DNA typing?
MR. SIMS: Yes.
MR. SCHECK: And when you are doing forensic DNA typing, typically that involves a case where you will get a result, a DNA result, and then it will be introduced in court with respect--and maybe against somebody who is accused?
MR. SIMS: Or it may well give a result that exonerates some person.
MR. SCHECK: It can happen. But when it is being used for purposes of incrimination, it is used for--let's put it this way: Talking about false positives and false negatives?
MR. SIMS: Yes.
MR. SCHECK: There are many situations where you will have what we would characterize as a positive result, that is, there is a consistency between DNA typing found on some sample and a person that is accused and that would be called, let's say, a, quote, positive result?
MR. SIMS: Yes, you could use it in that context.
MR. SCHECK: And you had that in mind when you are answering the false positive question yesterday?
MR. SIMS: Yes.
MR. SCHECK: Now, in a--when you are using PCR typing for purposes of making a diagnosis in a clinical test--
MR. HARMON: Objection, no foundation.
THE COURT: Sustained.
MR. SCHECK: You were asked yesterday in this connection about--you made reference to an article by Mr.--Dr. Sensabaugh concerning, umm, false positive rates and PCR typing?
MR. HARMON: Objection. That misstates the testimony. There was no such testimony on rates, your Honor.
THE COURT: Sustained.
MR. SCHECK: Do you know what the false positive rates are for PCR typing in clinical medicine?
MR. SIMS: No.
MR. SCHECK: Do you know--you were asked questions comparing forensic typing in DNA typing in forensics and clinical medicine yesterday by Mr. Harmon?
MR. SIMS: Yes.
MR. SCHECK: All right. And let's just talk about what you do know with respect to the use of forensic typing in clinical medicine.
MR. SIMS: Okay.
MR. SCHECK: Do you know if PCR typing in clinical medicine is used to do a diagnosis of, let's say, some--you know what a pap smear is?
MR. SIMS: Yes.
MR. SCHECK: All right. A situation where you--an analysis might be done on a pap smear to see whether or not somebody might have a tumor that is either malignant or benign?
MR. HARMON: Objection, irrelevant, beyond the scope.
THE COURT: Sustained.
MR. SCHECK: In--when PCR typing is used as a screening device in clinical medicine, do you know if it is used in situations to make an assessment as to whether or not somebody, umm--where you will make a prediction based on the typing result as to whether or not somebody has, let's say, a certain genetic disease?
MR. HARMON: Objection. It is irrelevant, beyond the scope, no foundation.
THE COURT: Sustained.
MR. SCHECK: Do you know if in clinical medicine, using PCR typing, one can make a comparison of what the DNA typing result is and compare it later to whether or not the typing result accurately predicted the outcome?
MR. HARMON: Your Honor, objection.
THE COURT: Sustained. Foundation. Sustained.
MR. SCHECK: Do you know--I'm asking him if he knows.
THE COURT: It is beyond the scope as well, counsel.
MR. SCHECK: In a--using forensic DNA typing in the context of a criminal case, the only way that you can find out if you had a false positive is if some other evidence emerges afterwards which would indicate that the DNA typing was incorrect?
MR. HARMON: Objection. It is argumentative, your Honor.
THE COURT: Sustained.
MR. SCHECK: Well, you are aware of the CACLD studies?
MR. SIMS: Yes.
MR. SCHECK: And in the first round of CACLD studies two laboratories, cellmark, forensic sciences associates, got false positives?
MR. HARMON: Objection, beyond the scope, no foundation, calls for hearsay.
THE COURT: Sustained.
MR. SCHECK: Do you know if cellmark and forensic sciences associates--
THE COURT: Counsel, I'm staining the objection on a hearsay basis at this point.
MR. SCHECK: All right.
MR. SCHECK: Have you read the results, the report of the CACLD study?
MR. HARMON: Objection. It is irrelevant, beyond the scope.
MR. SCHECK: Just first question.
THE COURT: Overruled.
MR. SIMS: No.
MR. SCHECK: Have you read reports of that study?
MR. SIMS: I have read some information about that study, yes.
MR. SCHECK: Uh-huh. And the information that you have read about that study, do you rely upon it?
MR. HARMON: Objection. It is relied on what for what reason?
THE COURT: Sustained.
MR. SCHECK: Have you relied upon it in forming your opinion about the reliability of forensic DNA typing?
THE COURT: Still vague, counsel, relied on what? What article specifically?
MR. SCHECK: Have you relied on the literature you have read concerning the CACLD studies?
THE COURT: Still sustained. We are not identifying what it is that we are referring to.
MR. SCHECK: What is it that you have read with respect to the CACLD studies?
MR. SIMS: Well, for example, Dr. Blake--
MR. HARMON: Objection. That may call for hearsay. That does call for hearsay, your Honor.
THE COURT: No. What he has read regarding the CACLD study is not hearsay. Overruled.
MR. SCHECK: You may answer.
MR. SIMS: I know, for example, that Dr. Blake mentioned it in the case work article, the experience he had and why it was better--why he found it was better to shift to the reverse dot-blot.
THE COURT: Excuse me. The only question is what have you read with regards to the CACLD study? Dr. Blake's article. We have established that.
MR. SCHECK: What else have you read?
MR. SIMS: I think--I think there is a mention of the CACLD study in the NRC report and I think there is a mention of it in I recall reading something about it I think in Dr. Thompson's article.
MR. SCHECK: Uh-huh. In what you've read, would you rely upon these articles that you've read in terms of their accuracy in reporting what occurred in the CACLD study.
MR. HARMON: Objection.
THE COURT: Sustained.
MR. SCHECK: Would you rely upon what you've read in terms of forming your opinion--
THE COURT: Excuse me, counsel. The way you are phrasing the question, it is never going to work.
MR. SCHECK: Oh, okay. Then I have to find another way.
THE COURT: I guess so. This doesn't look particularly fruitful here. The jury has already heard about the CACLD study and has also heard testimony from cellmark.
MR. SCHECK: Right.
THE COURT: So let's proceed.
MR. SCHECK: To your knowledge, in proficiency tests performed by the CACLD, were there more false positives than false negatives?
MR. HARMON: Objection, calls for hearsay. It is beyond the scope.
THE COURT: Sustained.
MR. SIMS: I don't recall--
MR. SCHECK: You can't answer.
THE COURT: Sustained.
MR. SIMS: I'm sorry.
MR. SCHECK: Umm, Mr. Sims, let's discuss for a few minutes the fingernails.
MR. SIMS: Okay.
MR. SCHECK: Now, you told us that you had considerable experience in conventional serology?
MR. SIMS: Yes.
MR. SCHECK: And how many years was that?
MR. SIMS: Well, in conventional serology I--I actually started doing conventional serology back in 1976, so I guess I did that for about fourteen years, something like that.
MR. SCHECK: And have you worked with the EAP system?
MR. SIMS: Yes, I have.
MR. SCHECK: And I believe you have told us that--well, withdrawn. And the EAP system looks at enzymes within the red blood cells?
MR. SIMS: Yes, it does.
MR. SCHECK: And forensic DNA testing with DQ-Alpha or polymarkers would be looking at nucleated cells, correct?
MR. SIMS: That's correct.
MR. SCHECK: And I think you have already told us that in terms of blood, only one percent of blood contains the white cells that has the nuclear DNA?
MR. SIMS: Something like that. I know that figure a little differently from my knowledge, but it is on that order.
MR. SCHECK: Uh-huh.
MR. SIMS: Blood is mostly red cells, that is the point, and very few white cells by comparison.
MR. SCHECK: When you opened the package--packages that contained the fingernail scrapings--you received the packages that contained the fingernail scrapings and the clippings?
MR. SIMS: Yes.
MR. SCHECK: And you opened them up and you looked at them when you received them at the lab?
MR. SIMS: Yes, I did.
MR. SCHECK: And at that time you were aware that Mr. Matheson had conducted EAP testing and conventional serology testing on scrapings?
MR. SIMS: Yes, I was aware of that.
MR. SCHECK: And were you aware of his results, reported results?
MR. SIMS: Yes. I believe I was aware of that result.
MR. SCHECK: And after looking at those packages, did you then close them up without conducting any testing on them and send them back to LAPD?
MR. SIMS: Well, I did close them up, but I didn't send them back at that point.
MR. SCHECK: You closed them up and you didn't perform any testing?
MR. SIMS: That's correct.
MR. SCHECK: And did you have any discussions with Mr. Matheson after you closed up the packages?
MR. SIMS: I think I did. I'm not positive of that, but I think I did talk to Mr. Matheson about the fingernail scrapings.
MR. SCHECK: And did you suggest that a second EAP test should be run?
MR. HARMON: Objection, calls for hearsay.
THE COURT: Sustained.
MR. SCHECK: Well, Mr. Sims, have--are you aware of literature that documents a degradation pattern for the EAP system?
MR. SIMS: Yes.
MR. SCHECK: And in that literature have you ever--in that literature is there any degradation pattern that shows that a BA can degrade into a two-banded b pattern?
MR. SIMS: Most of the literature that I am familiar with talks about what generally happens, although I do recall reading in the literature a citation for I think it was in the--one of the British laboratories where they saw a BA being mistyped as a B, and that--I have seen that in the literature. Not as part of a study, but as some--an observation.
MR. SCHECK: Could you answer my question?
MR. SIMS: Well, yes, I have seen that in literature.
MR. SCHECK: Have you seen in the literature any documentation of a degradation pattern where a BA degrades into a two-banded b pattern?
MR. SIMS: I--I don't recall seeing that, unless there may have been something in one of Dr. Grunbaum's papers, but I can't cite it offhand.
MR. SCHECK: And Dr. Sensabaugh is the person that has done, would you agree, the most extensive work in examining the EAP system?
MR. SIMS: I would say that Dr. Sensabaugh knows more about EAP than just about anybody.
MR. SCHECK: And in his published articles have you ever seen anything that documents a degradation pattern where a BA degrades into a two-banded b pattern? Anything he has written?
MR. SIMS: No, I can't recall seeing that.
MR. SCHECK: In your own experience, in all the years that you have performed conventional serology, have you ever seen a BA degrade into a two-banded b pattern?
MR. SIMS: Well, the problem with the EAP marker--I mean, I can recall generating a lot of inconclusive results with EAP, because it can be a difficult marker, but--
MR. SCHECK: But my question, sir--
MR. HARMON: Well, your Honor--
THE COURT: Let him finish his answer.
MR. SCHECK: I'm sorry. Are you finished?
MR. SIMS: Well, I think--I think in order to do that you have to be assured of what the type is to begin with, if you understand what I'm saying. In other words, if I have a stain, I have to be sure of the type to begin with. You would have to do it as a research project.
MR. SCHECK: Mr. Sims, I'm just talking about your experience now in typing. Have you personally ever seen a BA degrade into a two-banded b pattern? Have you ever seen that? Yes or no?
MR. SIMS: Where I knew that it was a BA?
MR. SCHECK: Degrade into a two-banded b pattern?
MR. SIMS: I can't recall seeing that, no.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Mr. Sims, I would like to discuss with you PCR carry-over contamination.
MR. SIMS: Okay.
MR. SCHECK: Now--your Honor, I'm going to start this, but it is going to take more than ten minutes.
(Brief pause.)
MR. SCHECK: This, your Honor, is exhibit 1133, Defense 1133.
(Brief pause.)
MR. SCHECK: Now, Mr. Sims, in the PCR amplification process, whether you are using the DQ-Alpha system, the polymarker system or the D1S80 system, in terms of basic principles, would it be fair to say that what is happening is one is starting with a certain amount of genetic material?
MR. SIMS: Yes.
MR. SCHECK: And then what happens is that in the PCR amplification process itself there is a--what are known as cycles?
MR. SIMS: Yes.
MR. SCHECK: Could you explain that for us, how that works and how a piece of starting material, umm, is amplified up into many larger fragments? Many more fragments, I'm sorry?
MR. SIMS: More fragments, right; not larger. The--this is the PCR process, and I won't go into great detail with this, but what you are doing is you are starting with a certain amount of what we call template DNA. In other words, that is the DNA that you extracted from the stain. And then you are doing what is called amplifying a particular segment of that DNA, a very small, relatively small portion of that DNA, and you are using that then to--that repetitive or--or you are making additional copies of a particular area, then you are making copies from copies and copies from copies and so on and so on. And that is why you see what we call this expedential expansion of the number of fragments that you get.
MR. SCHECK: Now, let us assume that the starting material here, all right, contains DNA for--let's pick the DQ-Alpha system, all right?
MR. SIMS: Okay.
MR. SCHECK: And in the DQ-Alpha system you have a series of different alleles?
MR. SIMS: Yes.
MR. SCHECK: And they are about how many base pairs long for the most part?
MR. SIMS: About 240 base pairs, the area of interest.
MR. SCHECK: All right. Let's assume, for purposes of this, that in this starting material we are talking about DNA that has the genotype 1.3, 1.3 for the DQ-Alpha system.
MR. SIMS: Okay.
MR. SCHECK: So in other words, would it be pair to say that when you begin making the copies from that starting material that with each different cycle you are producing more and more fragments that are about, what, 269 base pairs long?
MR. SIMS: About 240.
MR. SCHECK: 240 base pairs long that are little copies of that 1.3 allele?
MR. SIMS: Yes.
MR. SCHECK: And as the cycles go on, you are producing--what is this number at the end, after 32 cycles?
MR. SIMS: It looks like you've got 4 billion 290 million fragments.
MR. SCHECK: Fragments?
MR. SIMS: Fragments.
MR. SCHECK: 290 million fragments of that 1.3 allele?
MR. SIMS: Yes.
MR. SCHECK: That is 240 base pairs long?
MR. SIMS: Base pairs long, yes.
MR. SCHECK: And when you do that amplification on one of these little microfuge tubes, after you put it in that thermocycler machine, you are going to get inside that tube 4 billion 290 million fragments of 1.3?
MR. SIMS: Well, again it depends on your starting material, but that is the idea. That is proper.
MR. SCHECK: And a single amplification could contain something on the order of a trillion copies of an amplified target sequence?
MR. SIMS: I don't think at our levels that we get up to a trillion copies. I think maybe a billion is sort of the neighborhood.
MR. SCHECK: A billion copies. When we talk about the amplified target sequence here, we are talking about that 1.3?
MR. SIMS: That's correct.
MR. SCHECK: All right. And would you agree that that is a staggering number of molecules?
MR. SIMS: Well, no, it is not really a staggering number of molecules, I mean, if you look at the air, think how many molecules are in the air, and that sort of thing. It is not a staggering number of molecules; it is just a large number.
MR. SCHECK: Pretty large number, right?
MR. SIMS: But not in terms of molecules.
MR. SCHECK: Well, it is enough to cover many square miles of land if you just took them out of the tube and spread them out?
MR. SIMS: Maybe in a string or something like that, I suppose there could be something like that, yes.
MR. SCHECK: And with the contents of that reaction with these 4 billion 290 million fragments, it is certainly, if it got out of that tube, could cover a lot of square footage in a laboratory?
MR. SIMS: Yes, there could be some significant number of copies, that is true.
MR. SCHECK: And in a DNA laboratory, when you are doing these PCR tests, you are amplifying up in the tubes these billions of fragments again and again and again?
MR. SIMS: Well, you are--for example, if you did several samples, yes, each tube would contain those--that large number of fragments, yes.
MR. SCHECK: And if some of these fragments--are these fragments one of these fragments, is it visible to the naked eye?
MR. SIMS: Yes, it would be.
MR. SCHECK: One of those fragments?
MR. SIMS: Yes.
MR. SCHECK: How small would it be?
MR. SIMS: You couldn't see it. You would--you couldn't see it. I mean, it is extremely tiny. I mean we are talking about things on the atomic--well, it is not an atom obviously, but several atoms. You can't see it.
MR. SCHECK: When you said it is visible to the naked eye, are you talking about seeing it under the microscope?
MR. SIMS: No, you couldn't see it under the microscope.
MR. SCHECK: So you couldn't see it?
MR. SIMS: No, you couldn't see it.
MR. SCHECK: With that, not being able to visibly see it, your Honor, we will move on.
THE COURT: All right. Ladies and gentlemen, we will take a brief ten-minute recess. Please remember all of my admonitions. 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. Monday morning, 8:45.
MR. SIMS: Yes, your Honor.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Mr. Scheck.
MR. SCHECK: Yes. We have another chart I just showed Mr. Harmon.
(Brief pause.)
MR. SCHECK: My proposal is just to show him this, that is the numbers he testified to, and introduce it and move on.
THE COURT: Mr. Harmon.
MR. HARMON: You know, the one that jumps out as being grossly perverted is 52. Robin Cotton, as I recall, said 25 to 60. So--I mean--
MR. SCHECK: Just his answers to my hypothetical based on his--
MR. HARMON: You know, remember, mine are better late than never yesterday, your Honor. That hypothetical was based on a lot of things that have no resemblance to reality, including 52. I mean, that is the state of the record with respect to cellmark. So--and that points out why these argumentative distortions of what's been presented here--they may be great for Mr. Cochran's closing argument, but even at that point, I think you'd look at them with a dim view, and I hope you would anyway.
MR. SCHECK: Your Honor, this is--this is just a straightforward clear simple graphic of what the testimony was yesterday based on--
THE COURT: Aren't computers wonderful?
MR. SCHECK: They are.
THE COURT: All right. I'll overrule the previous objections. However, I anticipate five or six rather pointed questions from Mr. Harmon regarding the underlying assumptions.
MR. SCHECK: I do too.
THE COURT: All right. Okay. Let's proceed. Let's have the jury, please.
MR. HARMON: Your Honor, could I just comment? If you have those questions about the legitimacy of the assumptions, then why don't you defer on letting the jury see this rather than seeing it, and then let me straighten it out next Wednesday or Thursday. That I thought we were keeping them from being misled.
THE COURT: Well, counsel, you know, in looking at all of this, the issue is whether or not it would be misleading. Under the hypothetical that Mr. Scheck--and with his assumptions, it was an appropriate hypothetical question. However, I suspect that you will be able to come back and counter some of those assumptions. And I have already instructed the jury regarding the assumptions made on hypothetical questions. Let's proceed.
MR. HARMON: Could you instruct them again, your Honor, before we actually show them a manifestation of a--
THE COURT: I'm not going to pinpoint instructions for either party at any particular time.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Why don't you be seated. Mr. Sims, why don't you go ahead and take your seat. All right. Let the record reflect that we've been rejoined now by all the members of our jury panel. Mr. Sims is again on the witness stand. And, Mr. Scheck, you may continue with your cross-examination.
MR. SCHECK: Thank you, your Honor.
MR. SCHECK: Mr. Sims, to move back to our discussion of PCR carry-over contamination, now, referring you again to the chart that's--
THE COURT: 1133.
MR. SCHECK: --1133, now, these 4 billion 290 million fragments that are produced by an amplification, is the term that is sometimes used to describe a single one of those fragments an amplicon fragment?
MR. SIMS: Yes. I've seen that term in the literature.
MR. SCHECK: And sometimes it's just referred to as an amplicon?
MR. SIMS: Yes.
MR. SCHECK: And under the discussion we were having of this cy--32 cycles of one fragment, we were assuming it was the starting material--
THE COURT: Excuse me, Mr. Scheck.
MR. SCHECK: Sorry?
THE COURT: Excuse me just a second. All right. Proceed.
MR. SCHECK: We were assuming the starting material here was a 1.3, 1.3.
MR. SIMS: Okay.
MR. SCHECK: And so that would mean that the 4 billion 290 million amplicon fragments were these 1.3, 1.3 fragments from the DQ-Alpha system.
MR. SIMS: Yes.
MR. SCHECK: And just as we broke, you indicated to us that one of those fragments is invisible.
MR. SIMS: Yes.
MR. SCHECK: And if a number of these invisible fragments were to get from one of these tubes into another tube, that could cause what's known as PCR carry-over contamination?
MR. HARMON: Objection. Vague as to a number.
THE COURT: Overruled.
MR. SIMS: Well, again, it would depend on the number.
MR. SCHECK: How many of these amplicon fragments, these 1.3 fragments would it take to--when it transferred to another tube where it shouldn't be to create one of those little 1.3 dots on a DQ-Alpha strip?
MR. SIMS: Well, it's not just to create the dot. It's actually to get a typeable result. Is that what you mean? To get a typeable result, we'd need about a hundred of them, something like that.
MR. SCHECK: 100?
MR. SIMS: 100, yes.
MR. SCHECK: 1--only 100 out of those 4 billion 290 million fragments being transferred to another tube would cause a 1.3 contaminant on a strip?
MR. SIMS: Yes.
MR. SCHECK: And have you ever heard the term "exquisite sensitivity" applied to the PCR technique?
MR. SIMS: Yes, I have.
MR. SCHECK: And by "exquisite sensitivity," it is meant that the ability of the PCR process to amplify up very small amounts of starting material means that it is a very sensitive form of testing?
MR. SIMS: Yes, it is.
MR. SCHECK: And by sensitivity, we're talking about the ability to detect small amounts of, in this case, DNA?
MR. SIMS: Yes.
MR. SCHECK: If one takes one of those microfuge tubes with the top and pops it up and gets a small aerosol, gets on a glove, gets on the rim of another tube and then gets into a second tube and only 100 of those fragments gets into that second tube, that can cause a PCR carry-over contamination which would create one of those typeable 1.3 dots lighting up on the strip?
MR. SIMS: Well, no. That by itself wouldn't cause that. That's--you're--the way you phrased that, that's not what you're talking about.
MR. SCHECK: It gets into the tube and then you amplify it up and then you see the dot on the strip?
MR. SIMS: In other words, if--if some of that amplified product, that number of copies we talked about got back into another tube and then that got amplified, then that's correct, yes. But you have to amplify what you got in the tube.
MR. SCHECK: Amplified second?
MR. SIMS: That's right.
MR. SCHECK: Now, because these amplified products, it only takes 100 of them I think you said--
MR. SIMS: Yes.
MR. SCHECK: --to create a contaminant typing result.
MR. SIMS: Yes.
MR. SCHECK: PCR laboratories, whether doing forensic typing or typing for clinical medicine, have to be very, very concerned about carry-over contamination.
MR. SIMS: You have to be very concerned about that, yes.
MR. SCHECK: You have to take very strict precautions to make sure that amplified product, these fragments are not accidentally spread around?
MR. SIMS: You have to take strict precautions, yes.
MR. SCHECK: And you need to take strict precautions because only 100 of these invisible fragments can cause that contaminant?
MR. SIMS: Yes. In other words, 100 of those fragments all landing in the same place, the same tube as you mentioned, yes.
MR. SCHECK: All right. Now, in your--amplified fragments, these invisible amplified fragments can get on people's shoes?
MR. SIMS: I--I suppose they could if there was some on the floor, for example, and you stepped in it.
MR. SCHECK: And you could carry them to another section of the laboratory if one isn't careful?
MR. SIMS: Yes. I suppose that could happen.
MR. SCHECK: And it can get on clothing?
MR. SIMS: Yes.
MR. SCHECK: And if you carry that to another part of the laboratory, then touch your clothing and put your hand down on a surface, that can spread the amplicons?
MR. SIMS: Yes. That could spread them out, yes.
MR. SCHECK: And then that spread of the amplicons can somehow get on an analyst's hands or clothing and then start getting into reagents?
MR. SIMS: It's somewhat of a circuitous route, but I suppose theoretically, all that could happen.
MR. SCHECK: Well, isn't that in your understanding of the literature in this area more than a theoretical problem?
MR. SIMS: Well, most--most of the concern has come about, for example, in the way instrumentations such as pipettes are used or that sort of thing, but that is part of the issue, is you want to isolate the PCR product. There's no doubt about that.
MR. SCHECK: No doubt about it?
MR. SIMS: No doubt about that.
MR. SCHECK: And that's why in your laboratory's--withdrawn. Now, once one gets PCR carry-over contamination in a laboratory, it is hard to pinpoint exactly where it came from?
MR. SIMS: In other words, if one saw a--a large amount of it, in other words, a large number of samples that were contaminated, is that what you're saying? Yes, it could be difficult to isolate that.
MR. SCHECK: And in the literature on PCR typing, there has been much written about measures that could be taken in laboratories to prevent carry-over or amplicon contamination as it's called?
MR. SIMS: Yes.
MR. SCHECK: One precaution that has been suggested is the use of an enzyme known as U-N-G?
MR. SIMS: Ung, yes.
MR. SCHECK: Actually, I think it stands for--this may be more information than we need--Uracil N-Glycolase.
THE COURT: You want to spell that?
MR. SCHECK: Sure.
MR. SIMS: Or is it glycol's maybe?
MR. SCHECK: Uracil, U-R-A-C-I-L, new word, capital N dash, G-L-Y-C-O-L-A-S-E. Yes?
MR. SIMS: I believe that's right, yes.
MR. SCHECK: Typically--otherwise know as U-N-G?
MR. SIMS: Ung.
MR. SCHECK: And this is an enzyme that can be put into the PCR process that can prevent--can be used to prevent amplification of carry-over amplicons from the previous amplification run?
MR. SIMS: Yes. That's one approach that was proposed sometime back. I--nobody's adopted it in forensic use because we haven't found the need for it.
MR. SCHECK: Well, nobody in the forensic laboratories has adopted it?
MR. SIMS: That's correct.
MR. SCHECK: But in PCR typing, for purposes of clinical diagnosis, this is a widely-used technique, isn't it?
MR. HARMON: Objection. It's irrelevant, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Do you know if u-n-g is used in clinical laboratories as a precaution against PCR carry-over contamination?
MR. HARMON: Objection. Calls for hearsay, speculation.
THE COURT: Sustained.
MR. SCHECK: Are you familiar with the section concerning PCR carry-over contamination in the NRC report?
MR. HARMON: Objection. It's irrelevant.
MR. SCHECK: Call your attention to page 67.
MR. HARMON: Irrelevant.
THE COURT: Overruled. Are you familiar with that?
MR. SIMS: I've read it.
MR. SCHECK: All right. Do you rely upon the recommended--on that section of the--
MR. HARMON: Your Honor, objection.
MR. SCHECK: Rephrase the question.
MR. SCHECK: Do you rely on the section of the NRC report that discusses--
MR. HARMON: Objection.
MR. SCHECK: --PCR carry-over contamination in formulating your opinions about PCR typing?
MR. HARMON: Your Honor, I object, hearsay, to the form of the question.
THE COURT: Well, counsel, if you are talking at the same time, I can't hear the question, I can't hear the objection at the same time. Restate the question.
MR. SCHECK: Do you rely on the section of the national academy of sciences report concerning PCR carry-over contamination?
MR. SIMS: No.
THE COURT: Proceed.
MR. SCHECK: Is this--is Dr. George Sensabaugh one of the authors of this NRC report?
MR. SIMS: Yes. I believe he was one of the authors of the report.
MR. SCHECK: Is that the same Dr. George Sensabaugh that was the author of those articles or a number of the articles that Mr. Harmon referred you to on direct examination?
MR. SIMS: Yes.
MR. SCHECK: Now--so you don't use u-n-g as a precaution against PCR carry-over contamination in your laboratory?
MR. SIMS: That's correct. We found no need for it.
MR. SCHECK: Now, ultraviolet light can be used to--as a precaution against PCR carry-over contamination?
MR. SIMS: Yes.
MR. SCHECK: Literally, if you expose the DNA to ultraviolet light, it does something that they call cross-link it?
MR. SIMS: Yes. You get cross-linking, dimming, dimmers, that sort of thing.
MR. SCHECK: And in simple terms, what that means is, if you expose the amplicons to ultraviolet light, you will sort of deactivate them to the point where they can't be amplified up as carry-over contamination?
MR. SIMS: That's the basic idea, yes.
MR. SCHECK: And so ultraviolet light can be used as a way of--sort of as a precaution against PCR carry-over contamination getting on surfaces?
MR. SIMS: Yes.
MR. SCHECK: And I think you indicated that when you take notes in your forensic typing, you do it as the work is performed?
MR. SIMS: Yes.
MR. SCHECK: So you would be there with your paper, your note--your notes, the paper on which you make your notes as you are performing some of these functions?
MR. SIMS: Yes.
MR. SCHECK: And as a precaution, do you take the pages of your notes and put it in some machine to expose them to ultraviolet light?
MR. SIMS: Well, what I do is, I take the pages that have been in the PCR room, that's our product room, I expose those in a device called a straddle linker, which it zaps them basically with this ultraviolet light, and then I do that both sides of the paper before I remove it from that room.
MR. SCHECK: And the reason that you--so you literally take the pieces of paper that you bring into that PCR product room, and then you put it in--what did you call it? A contraption?
MR. SIMS: The device is called a straddle linker.
MR. SCHECK: Right. You put it in there, you expose both sides of the paper to the ultraviolet light, right?
MR. SIMS: Yes.
MR. SCHECK: So that's to make sure that the paper that you're carrying out of that PCR product room doesn't contain any of these amplicons?
MR. SIMS: Yes.
MR. SCHECK: That's the--
MR. SIMS: That's to--
MR. SCHECK: I'm sorry?
MR. SIMS: Well, yes. That's to, again, expose it to the UV light. It's a protective device.
MR. SCHECK: That's how careful one has to be?
MR. SIMS: That's--we are probably overboard on that matter, but I--we think it's a good idea because that paper may have been, for example, on a lab bench in the PCR room.
MR. SCHECK: When you say "overboard," you're talking in terms of comparing forensic DNA laboratories, right? You're comparing yourself to other forensic DNA laboratories?
MR. SIMS: Yes. That's all I know about.
MR. SCHECK: Right. You don't know very much about what clinical laboratories do in terms of trying to prevent PCR carry-over contamination?
MR. SIMS: I don't know a great deal about that, that's correct.
MR. SCHECK: And would it be fair to say that the PCR typing process has been used in clinical laboratories far longer than it has been in forensic laboratories?
MR. HARMON: Objection. Calls for hearsay, no foundation, it's irrelevant.
THE COURT: Do you know the answer to that question?
MR. SIMS: No.
THE COURT: Proceed.
MR. SCHECK: Is it fair to say that most of the forensic laboratories that you've been referring to for your knowledge are laboratories that are connected with law enforcement?
MR. SIMS: Yes.
MR. SCHECK: So basically what's happening--I think you even described it on direct--is that law enforcement, police crime laboratories have been taking a PCR technology that was first introduced in clinical medicine, the first application, and then research and transferring it into the crime laboratory?
MR. HARMON: Objection. Calls for hearsay, no foundation, speculation.
THE COURT: Overruled.
MR. SIMS: Well, I--I don't think--you said first. Now, I know Dr. Blake, who is a forensic analyst, was using this stuff in 1985 or -6. I mean, he was in the same building as the Cedus Company that developed it. So I don't know that you can actually say that clinical medicine people were using it before Dr. Blake was.
MR. SCHECK: Well--
MR. SIMS: I'm--I'm struggling with that one.
MR. SCHECK: Uh-huh. Well, you know Dr. Kary Mullis?
MR. SIMS: I don't know him personally.
MR. SCHECK: You know who he is?
MR. SIMS: I know who he is.
MR. SCHECK: He invented PCR technique.
MR. SIMS: Yes. I believe his name is on the patent along with some other people.
MR. SCHECK: He won the Nobel Prize?
MR. SIMS: He won the Nobel Prize.
MR. SCHECK: Now, in your laboratory, you--at the end of the PCR typing process, you go into something that you call a what room?
MR. SIMS: Product room.
MR. SCHECK: Product room. And that's where these tubes are amplified up?
MR. SIMS: Yes. That's where the amplification and typing takes place.
MR. SCHECK: And that's where you do your PCR product gel?
MR. SIMS: Yes.
MR. SCHECK: And it's in your protocol that you never, never take PCR product out of that room?
MR. SIMS: Well, we never process it away from that room. That's correct. We would not do that.
MR. SCHECK: And that's because of this danger of carry-over contamination?
MR. SIMS: That's correct.
MR. SCHECK: Every tool in that PCR product room is a dedicated tool?
MR. SIMS: Yes, it is.
MR. SCHECK: You don't take a pen that you would use in that room out of the room, do you?
MR. SIMS: That's correct.
MR. SCHECK: You don't take the lab coat out of that room?
MR. SIMS: That's correct.
MR. SCHECK: You don't take any gloves out of that room?
MR. SIMS: That's correct.
MR. SCHECK: You don't take any tubes out of that room?
MR. SIMS: That's correct.
MR. SCHECK: And you would never in your laboratory take the PCR tubes out of that room, put it in a car, drive it for a mile, bring it into another laboratory and then in another room in a laboratory, perform a PCR product gel, would you?
MR. HARMON: Objection. No foundation, calls for speculation, it's irrelevant, beyond the scope.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Would you ever take tubes out of your PCR product room and perform what's known as a PCR product gel in another room in your laboratory?
MR. HARMON: Objection. It's vague in terms of what another room is.
THE COURT: Overruled.
MR. SIMS: No. It would always be contained in the PCR product room because of the way our lab is set up.
MR. SCHECK: And that's because it's a one-way work flow?
MR. SIMS: That's correct.
MR. SCHECK: And that's what's recommended by--in forensic laboratories and any other laboratory that you know of that does PCR typing; that you should have a one-way work flow and the PCR product should not leave that last room?
MR. SIMS: That--that's the basic idea, yes. In other words, you work on a sample, you extract it, then you move into the PCR room for the final step.
MR. SCHECK: And could you just tell the jury what a PCR product gel is?
MR. SIMS: A PCR product gel is another one of these mini gels I think Dr. Cotton may have referred to. It's sort of like a yield gel, but it just tells you whether or not you got PCR product out of your amplification. In other words, it evaluates whether or not the--this amplification process was a success, because if it was a success, you'll see a band for the DNA size fragment we mentioned, about 240 base pairs, on your gel.
MR. SCHECK: And to perform a PCR product gel, bottom line, you would be taking some tubes that contained these amplicon fragments. You would have to be using that, be using amplified product?
MR. SIMS: Yes. Yes.
MR. SCHECK: Okay. Mr. Sims, let's discuss the glove.
MR. SIMS: Okay.
MR. SCHECK: And in preparation for that, I would ask you to turn to I guess it's page 69 of your notes while I search for one of the glove boards.
(Brief pause.)
THE COURT: Watch out there, guys.
MR. SCHECK: This is no. 272-A.
THE COURT: Excuse me, counsel. We're missing the other board that goes with this.
MR. SCHECK: Oh, I don't need it.
THE COURT: Yes.
MR. SCHECK: For my purposes now. Well, I wouldn't mind using it, but--
THE COURT: No. That was our agreement.
MR. SCHECK: Oh. The two of them would always be done together. You're absolutely right, your Honor. It's just a question of logistics. But I--thank you.
THE COURT: Deal's a deal.
MR. SCHECK: So I guess that means another easel.
THE COURT: Yes.
(Brief pause.)
MR. SCHECK: And while we're doing that, let me show Mr. Harmon some photographs so that he has--
(Brief pause.)
MR. SCHECK: While they're searching for this board, I'll show the witness these photos.
THE COURT: Proceed.
MR. SCHECK: Tell you what. I'm sorry.
(Brief pause.)
THE COURT: Mr. Scheck.
MR. SCHECK: Thank you, your Honor.
MR. SCHECK: Have you examined those photographs?
MR. SIMS: Yes.
MR. SCHECK: Now, let's just--you began your examination of the glove on October 15th?
MR. SIMS: Yes. I believe that's--yes, that's correct.
MR. SCHECK: What I would like to do with you now is just go over what you did and how long it took you to do it, to cut from the glove four samples. I believe they are G1, G2, G3 and G4, okay?
MR. SIMS: Okay. But when you say "cut," I mean I'm also spending a lot of time documenting, photographing and Dr. Blake is taking photographs too. So--
MR. SCHECK: That's right.
MR. SIMS: --it's not right to just say how long did I take to cut.
MR. SCHECK: No, no. I'm going to take you through it step by step.
MR. SIMS: Okay.
MR. SCHECK: Starting at page 69 of your notes.
MR. SIMS: Okay.
MR. SCHECK: On October 15th at about 3:15, you began an examination of this glove which you received on September 7th?
MR. SIMS: That's correct.
MR. SCHECK: And you photographed it and you made a diagram?
MR. SIMS: Yes, I did.
MR. SCHECK: All right. And this took you--and at that time, the glove was turned inside out as reflected on the top left-hand photograph in People's exhibit 272-A?
MR. SIMS: Yes. It was inside out.
MR. SCHECK: That's how it was when you received it?
MR. SIMS: Yes.
MR. SCHECK: And you then on--you--and when you were examining the glove on October 15th, you also did some presumptive testing on different areas of the glove?
MR. SIMS: That's correct.
MR. SCHECK: And could you tell us exactly what that is and how you did it?
MR. SIMS: Okay. The presumptive blood testing is with a--it's a color test, a reagent that when--in this case, I used orthotolidine. And what one first does is take a swab and then touch lightly the area of interest where you think there's blood, and then you take that swab now and drop sequentially reagents upon it, the orthotolidine followed by the hydrogen peroxide. And since blood has the--what's called a peroxidase like activity associated with it, if there's blood there, it will turn the reagent blue. You'll see a nice blue color.
THE COURT: All right. Mr. Sims, would you spell orthotolidine for the court reporter?
MR. SIMS: Yes. O-R-T-H-O dash T-O-L-I-D-I-N-E.
THE COURT: Thank you.
MR. SCHECK: And the purpose of going over the--the--the glove with this orthotolidine test and looking for all areas that you might think was blood, was to identify all the areas that you could see on the inside surface of the glove that you thought would be relevant for purposes of DNA testing?
MR. SIMS: Well, I--that's right, except I would probably take out the word "all." I'm not sure I--there's a lot of blood on that glove. So--but those are the areas I focused on.
MR. SCHECK: And to do this, it took you about two and a half hours?
MR. HARMON: Objection. It's vague as to what "this" is, your Honor.
THE COURT: Sustained. Rephrase.
MR. SCHECK: The examination, documentation and presumptive testing of the surface of the glove took you--all those activities that you've described on October 15th took you about and a half hours, or you tell me how long it took.
MR. SIMS: That's approximately correct, yes. All those--all the activities of that day took about that much time.
MR. SCHECK: Then on October 16th, the next day, you made some cuttings?
MR. SIMS: Yes.
MR. SCHECK: You cut G1 from I guess it's the pointer finger?
MR. SIMS: The index finger, yes.
MR. SCHECK: And G2?
MR. SIMS: Yes. That's on the side of the middle finger.
MR. SCHECK: And G3?
MR. SIMS: That's from the ring finger.
MR. SCHECK: All right. And G4?
MR. SIMS: Yes. That was now down into the--towards the middle of the hand.
MR. SCHECK: So in other words, you were taking cuttings from the index finger; is that right?
MR. SIMS: That's correct.
MR. SCHECK: And the inside of the middle finger?
MR. SIMS: Yes. That's correct.
MR. SCHECK: And then from something that would be equivalent on if you would turn the glove, you know, out again, right, the inside of--what do you call this finger--the--ring finger?
MR. SIMS: Ring finger.
MR. SCHECK: --ring finger?
MR. SIMS: Ring finger.
MR. SCHECK: Ring finger, right?
MR. SIMS: Yes.
MR. SCHECK: All right. Looking for blood in those areas?
MR. SIMS: Yes.
MR. SCHECK: All right. Then you also looked at an area that was even middle of the palm, right?
MR. SIMS: I think we're now talking--
MR. SCHECK: G4.
MR. SIMS: G4 is actually I think the back of the hand because it's inside out. If you look--
MR. SCHECK: Inside out on the back of the hand?
THE COURT: Excuse me. Mr. Scheck, you keep talking over Mr. Sims.
MR. SCHECK: I'm sorry.
MR. SIMS: May I step down, your Honor?
THE COURT: You may.
MR. SCHECK: Yeah, please.
THE COURT: Why don't you grab a pointer.
MR. SIMS: G4 is on the back of the hand. It's hard to think because it's inside out. You have to think about it. This notch here is what we call the palm or surface. In other words, that's the surface, the palm of the--and then this--G4 then is on the back of the hand.
MR. SCHECK: Okay. Now, to do these four--to do these four cuttings, right?
MR. SIMS: Yes.
MR. SCHECK: Between each cutting in your notes, you indicated that you went through the procedure before where you cleaned your instruments with water and alcohol and flamed them.
MR. SIMS: Yes.
MR. SCHECK: And under each of the cuttings, you put a new one of those chem-wipes?
MR. SIMS: Yes, I did.
MR. SCHECK: All right. When you handled each one of those cuttings?
MR. SIMS: Yes.
MR. SCHECK: And you changed gloves between each one of the cuttings or cleaned or put on--washed your gloves?
MR. SIMS: Now, that--I don't recall in this particular examination that I did that each time. I'm--I'm--I'm not sure I did that each time because this was all one item.
MR. SCHECK: Uh-huh. You might have?
MR. SIMS: Well, I might have, but--
MR. HARMON: Objection. Calls for speculation, your Honor.
THE COURT: Sustained.
MR. SCHECK: Now, how long did it take you to do those four cuttings? About five hours and 40 minutes?
MR. SIMS: No. I think--I think there's a follow-up. This was--this was a Sunday afternoon and I think there was still follow-up time. There were additional samples taken and additional documentation that Sunday.
MR. SCHECK: Well, I'm just curious if you could, to the best of your recollection, using your notes, how long do you think it took you to do the cuttings for those four samples?
MR. SIMS: Oh, those four samples?
MR. SCHECK: Uh-huh. And the documentation and your usual procedures.
MR. SIMS: Probably an hour, something like that at least. Maybe an hour and 15 minutes. Something like that. Maybe am hour and a half. I'm not sure.
MR. SCHECK: Uh-huh. And did there come a point where you proceeded on October 17th with the organic extraction or your extraction process on those samples?
MR. SIMS: Let me check my notes on that. Which page were you referring to?
MR. SCHECK: Well, page 72.
MR. SIMS: Yes. Page 72, this would now be October 16th. This is when I began the extraction of those samples.
MR. SCHECK: About how long did that take you?
MR. SIMS: The first--well, the first portion that--that night was fairly quick because I just had at that point had all my tubes set up and I just had to add a couple reagents to those tubes, and then that went overnight. The extraction process takes overnight. You let this to get this DNA out, you have to--and with our procedure, you have to go overnight. So then we begin now with the 17th because the 16th--
MR. SCHECK: How long? How long?
MR. SIMS: Well, that would probably take about half an hour, something like that, on the 16th.
MR. SCHECK: The organic extraction?
MR. SIMS: The start of the organic extraction on the 16th would take about half an hour.
MR. SCHECK: All right. And how long would it take you to finish the organic extraction on the next day, page 77?
MR. SIMS: This goes from 72 I guess over to page 75. I would say I spent probably, oh, half a day at least. I work--I work very slowly, but something like a half day, maybe four or five hours, something like that.
MR. SCHECK: And then did there come a point when you did an amplification of these G1, G2, G3 and G4?
MR. SIMS: Yes.
MR. SCHECK: How long did that take?
MR. SIMS: This would now be after the yield gel?
MR. SCHECK: Yeah. Page--you do a yield gel. How long did that take?
MR. SIMS: Excuse me. Well, the yield gel runs for about an hour.
MR. SCHECK: Uh-huh.
MR. SIMS: This was a--this was a pretty long day. Let's see. I--I--yeah. I have Dr. Blake coming over around 2100 hours. So that would be what, around 9:00 o'clock I guess. I'm running the yield gel during that time. I think it's not been till about the 18th--I have Blake departed 12:00 A.M. that would be midnight. And I think that the actual set-up then starts on the 18th. That would probably take about an hour and a half, something like that. There was some calculations based on the yield gel made and then there was some laying out of the--what we were going to amplify. So that would take about an hour and a half, something like that.
MR. SCHECK: And finally, when you do your amplification run and you get your typing results, about how long did that part of the process take for these four samples?
MR. SIMS: The--the typing, usually about half a day. I'd say about four hours it takes to do the typing. And then if the product gel is run, that's another hour or so.
MR. SCHECK: Now, I heard you say that you work slowly you said?
MR. SIMS: Yes, I do.
MR. SCHECK: Well, you work carefully?
MR. SIMS: Well, yes, I'm very careful. I think I'm very careful.
MR. SCHECK: Nothing wrong with that, is there?
MR. SIMS: Well, from a production standpoint, it's not--I don't think--I don't think it's all that good. But in terms of getting the right result, I think it's important to take one's time to do a good job.
MR. SCHECK: Yes. Now, looking at all your results on 272-A, which is the picture of the glove, and 272-B, would it be fair to say that the predominant source of DNA on this glove, whether it be through RFLP typing or PCR base typing, is consistent with Ronald Goldman?
MR. SIMS: Well, I can only address those issues--those places where I sampled. You have to remember there's a lot of blood on this glove.
MR. SCHECK: Yes.
MR. SIMS: And from the areas that I sampled, I mean, there's a great deal of mixing going on, but--but overall, from the areas that I sampled, I would say yes, Mr. Goldman's types were predominant in those areas.
MR. SCHECK: Whether you're looking at the band intensities in RFLP or the dot intensities in PCR or the band intensities in D1S80, it would be your conclusion that his DNA was the predominant source on this glove in most of the areas?
MR. HARMON: Objection. That misstates the testimony, calls for speculation.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. And each of the areas would take it--would you agree that Mr. Goldman's--that DNA consistent with Mr. Goldman's type, different typing procedures, was the predominant source?
MR. SIMS: Yes.
MR. SCHECK: Now, you found no trace of DNA consistent with Mr. Simpson in G1, the index finger?
MR. SIMS: That's correct.
MR. SCHECK: You found no trace of DNA consistent with Mr. Simpson in G2, the middle finger?
MR. SIMS: That's correct.
MR. SCHECK: You found no trace of Mr. Goldman's--Mr. Simpson's DNA consistent with Mr. Simpson in the ring finger?
MR. SIMS: That's correct.
MR. SCHECK: You found no trace of DNA consistent with Mr. Simpson in G4, the back of the hand?
MR. SIMS: That's correct.
MR. SCHECK: At G14, the bottom of the glove, you found no trace of DNA consistent with Mr. Simpson?
MR. SIMS: That's correct.
MR. SCHECK: All right. The three areas where you found traces of DNA on the D1S80 system that were consistent with Mr. Simpson were G10, G11 and G13?
MR. SIMS: Yes.
MR. SCHECK: Now, turning first to G10, you extracted a total of 44 nanograms of DNA?
MR. SIMS: I'll check that (Brief pause.)
MR. SIMS: That's--actually there was a little more than that because this was now available after the quantitation. So it was a little over 44 nanograms, yes.
MR. SCHECK: And looking at band intensities on the D1S80 system, would you say that the proportion--let me ask you, how would you estimate the proportion of DNA within that area that contributed to the 25 allele? Would you say it would be something on the order of 20 percent?
MR. SIMS: Maybe something along those lines. I would defer that though to Renee Montgomery, who is a D1S80 specialist.
MR. SCHECK: Well, from your examination of that, would you--your opinion say about 20 percent?
MR. SIMS: Something in that ballpark, yes.
MR. SCHECK: So if we use that estimate, then that would mean it's about eight nanograms of DNA would be consistent with the contribution of the 25 allele?
MR. SIMS: Yes. Something like that. It may be less than that also, but it's down there.
MR. SCHECK: Maybe less than eight?
MR. SIMS: Yes.
MR. SCHECK: Now looking at G11, extracted there 18.5 nanograms?
MR. SIMS: Excuse me one moment while I look at my notes.
THE COURT: Take your time.
(Brief pause.)
MR. SIMS: G11--I'm sorry. And you said how much?
MR. SCHECK: 18.5.
MR. SIMS: Yes. That was again what was available after the quantitation. So there was more along the lines of about 20, something like that.
MR. SCHECK: Okay. And what would be your estimate of the proportion of DNA that would be attributable to the 25 allele?
MR. SIMS: On that--on that particular one, I don't remember because I haven't looked at that gel in a long time. So I don't have an independent recollection other than that it was a weaker contribution than the 24 allele. I do independently remember that first one we mentioned, but I don't recall the intensity on g--on G-11, these last two because I don't recall that particular gel.
MR. SCHECK: Uh-huh. But your assessment here is that this would be consistent with the three-way mixture?
MR. SIMS: On G11?
MR. SCHECK: Yeah.
MR. SIMS: Yes.
MR. SCHECK: All right. So that would mean that if you assumed that the mixture on the D1S80 system was a--was between an 18, 18, 25--and a--24, 25 and a 24, 24, all right?
MR. SIMS: Okay.
MR. SCHECK: And the 25 band in that D1S80 is comparatively faint, isn't it?
MR. SIMS: Yes. It's noticeably weaker.
MR. SCHECK: All right. So would you say that something on the order of at--at most a third could be attributed to the 25 allele?
MR. SIMS: Well, again, as I mentioned, I don't recall this particular gel. And so I think I'd be speculating to say what that contribution would be.
MR. SCHECK: All right. And turning to G13, you got 40.5 nanograms?
MR. SIMS: Yes. Again, that would be available after the quantitation. So it would be a little higher than that to start with.
MR. SCHECK: And do you have a recollection of--and again, this was a three-way mixture, could be a three-way mixture?
MR. SIMS: Yes, it could be.
MR. SCHECK: And that the predominant--withdrawn. And that the 25 allele was comparatively faint?
MR. SIMS: Yes. Again, it was weaker than the 24 noticeably.
MR. SCHECK: And what proportion do you believe of that mixture would be attributable to the 25 allele?
MR. SIMS: Well, I think again, I'd have to give the same answer because I think those two samples were run on the same gel that I don't recall the intensity patterns.
MR. SCHECK: Uh-huh. But again--all right. So you wouldn't want to speculate that it would be at most a third?
MR. SIMS: Yes. I would--
MR. HARMON: Objection. That calls for speculation.
THE COURT: Sustained.
MR. SCHECK: All right. Now--
MR. SCHECK: Your Honor, I'd like to mark some photographs right now. Next in order--
THE COURT: I believe 1161.
MR. SCHECK: Yes. Actually what I would like to do is--I made an error.
(Brief pause.)
THE COURT: Mr. Scheck, is this going to be a series of photographs?
MR. SCHECK: Yes. Actually, what I'd like to do, your Honor, with your permission--I've shown these to the witness--is--they are photographs that are contained inside plastic and there are markings that are illustrative of them, and I would like to show them to the witness. So that the exhibit would be the photograph inside the plastic with the marking.
THE COURT: All right. Mr. Harmon. Have you looked at the markings?
MR. HARMON: Well, I do have a problem with the markings without a foundation, your Honor.
THE COURT: Let me see counsel without the reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Mr. Scheck.
MR. SCHECK: Yes. Show you--what is this next in order is?
THE COURT: This is 1161.
(Deft's 1161 for id = photograph)
MR. SCHECK: Photograph in plastic with markings on it that we'll call 1161.
MR. SIMS: Okay.
MR. SCHECK: Do you recognize that?
MR. SIMS: Well, this appears to be the same glove that I looked at and I would--I'm pretty sure that's Dr. Blake's writing on that photograph to label it.
MR. SCHECK: All right. Does that appear to you to be the cut-out area that you and Dr. Blake identified as being the sample removed from the back of the wrist by the Los Angeles Police Department before you received the glove? And please check it against your diagram.
MR. SIMS: That--that looks very similar to it.
MR. SCHECK: All right. Now, I show you 11--
MR. SIMS: Well, I just wanted to finish by saying, the assumption was made that that cut was caused--was not caused, but it was made by the LAPD. I don't know that independently.
MR. SCHECK: But you received the glove--
MR. HARMON: Your Honor, I object to that, move to strike that. That calls for speculation, your Honor. There's no foundation for that right now.
THE COURT: Sustained. The jury is to disregard that last answer.
MR. SCHECK: You received the glove from the Los Angeles Police Department?
MR. SIMS: Yes.
MR. SCHECK: All right. And when you received it, there was that cut-out?
MR. SIMS: Yes.
MR. SCHECK: And to the best of your knowledge, in looking over the records of this case, no other agency performed any testing or made any cut-outs of the glove before you received it?
MR. HARMON: Objection. Calls for speculation, hearsay, no foundation.
THE COURT: Sustained.
MR. SCHECK: Let me show you what's--
MR. SCHECK: Your Honor, I'll remove LAPD photos?
THE COURT: Well, I think we can--when we put it on the elmo, we can delete the commentary.
MR. SCHECK: All right.
THE COURT: Or you can just use the photograph itself as 1161 without the comment on it.
(Deft's 1162 for id = photograph)
MR. SCHECK: All right. Show you what's 1162. Does this photograph--these two photographs in the plastic reflect cut-outs, one, two, three, four, five cut-outs that you observed on the glove prior to your removing anything from it?
MR. HARMON: Objection, your Honor. Calls for speculation, there were cut-outs.
THE COURT: Overruled.
MR. SIMS: Now, again, I do have my own photographs of this item too, but against my drawings within my notes, that appears to be consistent. Yes.
MR. SCHECK: All right. And ask be marked 1163.
(Deft's 1163 for id = photograph)
MR. SCHECK: Does that appear to be a--a photograph of the cut-out you made of G10?
MR. SIMS: Yes, it does.
MR. SCHECK: All right. That would be the wrist at the "v" cut-out of the area G10?
MR. SIMS: Yes.
MR. SCHECK: All right. And I'll show you what I would ask to be marked 1164.
(Deft's 1164-A for id = photograph)
MR. SCHECK: And this would be a plastic page with two photographs. And would that--does that reflect swabs that you made at the area designated G11 and G12?
MR. SIMS: Yes. These were taken by Dr. Blake. I'm holding the forceps and this is--he wanted to document exactly where we were getting the samples from. So this is him taking a picture of me sampling them.
MR. SCHECK: And finally, on the other side of 1164, I'll call it 1164-B.
THE COURT: No. Just--yeah. 1164-B.
(Deft's 1164-B for id = photograph)
MR. SCHECK: There's another two photographs, one of G13 and another of G10, correct?
MR. SIMS: Yes. And also, G14 is on the filter paper.
MR. SCHECK: Right. And that again is you taking the cut-out; is that right?
MR. SIMS: Yes. I was just going to review it against my notes.
MR. SCHECK: Please.
THE COURT: All right. Mr. Scheck, would you mark the front of that 1164-A so that Mrs. Robertson doesn't spend time looking for--
MR. SCHECK: No, no.
THE COURT: All right.
MR. SCHECK: Okay.
THE COURT: Thank you.
MR. SCHECK: So the--let's look at 164-D.
THE COURT: Why don't you lower it down.
MR. SCHECK: Would you mind if I--
THE COURT: Let's just lower it down.
(Brief pause.)
MR. SCHECK: Okay. Can you put that up?
MR. SCHECK: We seem to be getting some reflection, but can you--Mr. Sims, if you--look at the lower photograph of 1164-B. Do you see something, initials "CY"?
MR. SIMS: Yes.
MR. SCHECK: And those--
THE COURT: Excuse me. Mr. Scheck, perhaps if we took that out of the plastic. Is that possible? Because the reflection appears to be off the plastic surface.
MR. SCHECK: Well, I understand. The problem is, if we take it out of the plastic, then you lose the markings that indicate where everything is. And I won't be with this long, your Honor.
THE COURT: Well, it's not particularly helpful if the glare is there though.
MR. SCHECK: I understand.
MR. SCHECK: Can you--all right. Looking at this section, do you see the initials "CY"?
MR. SIMS: Yes.
MR. SCHECK: And that is--that was there before you received the glove?
MR. SIMS: Yes, it must have been because it was there when I opened it.
MR. SCHECK: All right. And in the area just below where you took G14--well, in that lower area of the glove, all right?
MR. SIMS: Okay.
MR. SCHECK: Where there's some cut-outs that you saw before you cut anything on the glove.
MR. SIMS: Okay.
MR. SCHECK: Is that true?
MR. SIMS: Yeah. There was--there was that--that prior cutting near G14. Is that--
MR. SCHECK: Yes.
MR. SIMS: Yes.
MR. SCHECK: And the swab that you took on G11, the swab you took on G13 and the cutting you made in G10 are all in that lower area of the glove where you see those initials, some on the front, the swabbings on the outside surface of the glove, the cutting on the inside of the glove?
MR. SIMS: Yes. They're all down in that general area.
MR. SCHECK: And do you know if those initials "CY" stand for Collin Yamauchi, an analyst at the Los Angeles Police Department?
MR. HARMON: Objection. Calls for hearsay, speculation.
THE COURT: Sustained.
MR. SCHECK: Do you have any knowledge of whether or not someone from the Los Angeles Police Department prior to you receiving the glove did manipulations, put on initials, did cut-outs and handled that glove on the morning of June 14th?
MR. HARMON: Objection. Calls for hearsay and speculation. No foundation.
THE COURT: Do you know anything about that?
MR. SIMS: Well, it was my understanding there was some examination of the glove.
THE COURT: Do you know when it was done?
MR. SIMS: I--I believe it was in June. I'm not sure.
THE COURT: Do you have any personal knowledge about any of this?
MR. SIMS: No.
THE COURT: Proceed.
MR. SCHECK: All right. Thank you. Now, Mr. Sims, would the--would it be fair to say that the traces of DNA consistent with the 25 allele in G10, G11 and G13 are all certainly 8 nanograms or less?
MR. SIMS: Well, again, I would defer on that question because I haven't evaluated all those mixtures.
MR. SCHECK: So in other words, to get a more precise proportion, other than the one you said--you said--I think you testified that G10 would be 8 nanograms at most, maybe less?
MR. SIMS: Yeah. Down in that neighborhood.
MR. SCHECK: All right. And you're deferring us to Miss Montgomery with respect to getting a calculation on the other two?
MR. SIMS: Yes. And also, to give you a better idea on that G10 one as well.
MR. SCHECK: Now, let us turn to the sock.
MR. SIMS: Okay.
MR. SCHECK: Every stain that you cut and sampled from that sock, you could see with the naked eye?
MR. SIMS: Under the proper lighting conditions, I could, yes. That's true.
MR. SCHECK: In other words, you could see it with your naked eye, the reddish stain, without the stereomicroscope, every stain that you cut with appropriate lighting?
MR. SIMS: With appropriate lighting, I think that is true.
MR. SCHECK: And a trained forensic scientist with appropriate lighting--withdrawn. Trained forensic scientists will examine pieces of evidence with appropriate lighting.
MR. HARMON: Objection. It's vague. Appropriate for what?
THE COURT: Overruled.
MR. SIMS: Excuse me. I mean, it depends obviously on the type of examination that's being performed. It's hard for me to comment on that. It's sort of a general question.
MR. SCHECK: Well, you have told us about your--you sit on a board that certifies criminalists; do you not?
MR. SIMS: Well, that's beyond what my duties were, but that was part of my duty was to work on the examination, for example.
MR. SCHECK: All right. In your opinion as an expert in criminalistics, are criminalists trained to perform careful visual examination as an appropriate lighting of garments such as a sock that might contain bloodstains?
MR. HARMON: Objection. Beyond the scope of direct.
THE COURT: Overruled.
MR. SIMS: Well, again, it would depend on the type of examination. Sometimes criminalists will screen items very quickly, just take a quick look to see if there's grossly anything noticeable. And then other times, if you're going to do a thorough examination, then I think you're right, that you would want to make sure you have the appropriate lighting.
MR. SCHECK: And when you're trying to examine an item for purposes of determining how much blood would be on it for purposes of DNA testing, you would want to examine that item with some care?
MR. SIMS: Yes.
MR. SCHECK: And when you receive these socks, one of the stains I'm not talking about the larger cut-out area at the ankle, just one of the stains, the first one you saw at the top, you saw that right away with the naked eye, the one near the arrow?
MR. SIMS: Yes. That did catch my eye.
MR. SCHECK: You didn't need a stereomicroscope to see that. You just saw that stain?
MR. SIMS: Yes, I did.
MR. SCHECK: And the cut-out on the sock in the ankle area, the cut-out is about three-quarters of an inch?
MR. SIMS: Approximately, yes.
MR. SCHECK: Would be about the length of my little finger to the joint?
MR. SIMS: Something like that.
MR. SCHECK: And in the area adjoining the cut-out, you could see with your naked eye not under the stereomicroscope a section of reddish material?
MR. SIMS: My initial exam was under the stereomike and I said, "some reddish still here." I don't think--I think that was pretty subtle though around that particular stain.
MR. SCHECK: We're only--but we're--could you?
MR. SIMS: Are you talking about the cut-out area now?
MR. SCHECK: Talking about there's a cut-out area, correct?
MR. SIMS: Yes.
MR. SCHECK: And then that--that we just described as being about three-quarters of an inch?
MR. SIMS: Yes.
MR. SCHECK: And that's material from the sock that's already in a tube?
MR. SIMS: Yes.
MR. SCHECK: That has Mr. And Mrs.--that has Mr. Simpson's initials on it?
MR. SIMS: Yes.
MR. SCHECK: And that material had reddish stains on it when you took it out of the tube that were visible to the naked eye?
MR. HARMON: Objection. That calls for speculation. Misstates his testimony.
THE COURT: Sustained.
MR. SCHECK: When--did you ever take those cuttings out of the tube?
MR. SIMS: Yes.
MR. SCHECK: And when you looked at those cuttings, could you see reddish material with your naked eye?
MR. SIMS: Well, again, my examination notes are, "stereomike exam, reddish staining." that was the--I mean, I--I think if you looked real hard at them, you could probably pick up that there was a little bit of reddish associated with them. But my observation was that I took them over to the microscope right away because I wanted to see if there really was a lot of blood there.
MR. SCHECK: At no point did you ever look at those cut-outs to see whether you could see a reddish stain?
MR. HARMON: Objection. It's vague.
THE COURT: Sustained. How?
MR. SCHECK: This material on the sock is of a synthetic nature?
MR. SIMS: That's what I indicated in my notes, but that was just a gross observation. I didn't actually characterize the fibers.
MR. SCHECK: It's a smooth fabric?
MR. SIMS: Yes.
MR. SCHECK: And the area where--the areas where there is blood on it, the fabric crinkles, it's a little stiffer?
MR. SIMS: It tends to pucker a little bit, yes. I think that's what I noted on some of these.
MR. SCHECK: So that's a smooth synthetic sock, and the area where you observed blood, the stained areas, crinkled and puckered?
MR. HARMON: Objection. Misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: Is it true that in the areas where you observed red stains with your naked eye without the use of a stereomicroscope, you noticed that the fabric of the sock had crinkled and puckered?
MR. HARMON: Objection. Stains, misstates the testimony.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: The areas of the socks where you observed blood, the naked eye, the fabric, your observation, those areas crinkled and puckered?
MR. SIMS: In some of those areas, yes, I noticed that.
MR. SCHECK: And you told us on direct examination about cut-outs you made from the sock that you put on white paper?
MR. SIMS: Yes.
MR. SCHECK: And you've explained that on that white paper, you could see what you called fibrils?
MR. SIMS: Yes.
MR. SCHECK: And you also could see without the aid of a stereomicroscope powdering, reddish powdering?
MR. SIMS: Yes. There was some very minute specks of powdering.
MR. SCHECK: And that's putting it on a white piece of paper?
MR. SIMS: Yes.
MR. SCHECK: All right. And when forensic scientists are examining an item, is it not their practice ordinarily to put that item they're examining, searching for blood on a white or a light colored piece of paper?
MR. SIMS: That's typical. It's not always done, but it's typical. Sometimes we would use brown paper, for example.
MR. SCHECK: And with care, you would manipulate the item and turn it over on sides?
MR. SIMS: Yes.
MR. SCHECK: All right. And it is standard practice for forensic scientists to examine any debris or powdering that you might find on such a paper?
MR. SIMS: Well, now, again, you're talking about the debris. The debris comes about from the cutting process.
MR. SCHECK: Well, the debris that you saw, you explained to us some of it were fibrils that you believe came from the cutting process.
MR. SIMS: Yes.
MR. SCHECK: All right. I'm talking about a situation before you do cutting, when you're examining an item.
MR. SIMS: Yes.
MR. SCHECK: And you've indicated that forensic scientists will put this on white pieces of paper.
MR. SIMS: Yes.
MR. SCHECK: And you will examine it.
MR. SIMS: Yes.
MR. SCHECK: And you will search it for bloodstains.
MR. SIMS: Yes.
MR. SCHECK: And you will be turning it over.
MR. SIMS: Yes.
MR. SCHECK: And you'll do that with some care.
MR. SIMS: Yes.
MR. SCHECK: And it is standard practice after you do that to look on the piece of paper to see if you see any kind of powdering or residue from the item you've examined?
MR. SIMS: Well, I don't know that that's standard practice to look at that residue. One may look at it, for example, trace evidence.
MR. SCHECK: For trace evidence?
MR. SIMS: That would be standard practice, yes.
MR. SCHECK: And even from the sections that you cut in your laboratory in terms of the reddish powder, do you have an expectation that if you did a presumptive test just on the powder of the white piece of paper, you would have been able to get a positive presumptive?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Mr. Sims, you are not part of any conspiracy to tamper with evidence in this case, are you?
MR. SIMS: No. No, I'm not.
MR. SCHECK: To your knowledge, Dr. Cotton from cellmark is not part of any conspiracy to tamper with evidence in this case?
MR. HARMON: Objection. Irrelevant, calls for speculation.
THE COURT: Overruled.
MR. SIMS: No, I don't believe she is.
MR. SCHECK: But, Mr. Sims, as you sit here today, you don't know how and you don't know when that blood got on the sock, do you?
MR. HARMON: Objection. That's argumentative.
THE COURT: Rephrase the question.
MR. SCHECK: Do you know from your own personal knowledge how and when that blood got on the sock?
MR. SIMS: No.
MR. SCHECK: And that section of the sock you made--withdrawn. The middle cut-out of the sock, you had--you took four swatches?
MR. SIMS: There were four. I took three.
MR. SCHECK: You took three?
MR. SIMS: Yes.
MR. SCHECK: And out of those three, when you quantitated the DNA, you got 1,350 nanograms of DNA from the three swatches?
MR. SIMS: Something like that. It was--it was a strong deposit of blood and a lot of DNA.
MR. SCHECK: And you would expect that there would be more--there would be additional DNA on the other swatch that you haven't tested?
MR. SIMS: Yes.
MR. SCHECK: And you would expect there would be DNA on the section that Greg Matheson tested?
MR. SIMS: Yes.
MR. SCHECK: And there is yet additional DNA on a session near the cut-out of the sock that you did not even cut?
MR. SIMS: Yes. I could see that there was still some reddish staining around the edges of the cut-out.
MR. SCHECK: And would it be fair to estimate in your opinion that if you start from the area of the sock on the ankle, that from where you can see blood, right, to the end of the cut-out, right?
MR. SIMS: Okay.
MR. SCHECK: Cut-out area, that if you had to make an estimate of the amount of DNA in that spot, it would be in the area of 2- to 3,000 nanograms?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Your Honor, I think it's an appropriate time to stop.
THE COURT: All right. All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions; do not discuss the case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you, don't allow--don't conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned, we'll stand in recess until 9:00 A.M. Monday morning. Mr. Sims, Monday, 8:45. All right. You may step down. Have a nice weekend.
MR. SIMS: Thank you.
THE COURT: All right. Ladies and gentlemen of the jury, have a pleasant weekend. Just for your information, we will be working on this case and other cases this afternoon. So we're just taking a lunch break. All right? You all have a nice weekend. All right. We'll stand in recess, 1:30.
(The following proceedings were held at the bench:)
THE COURT: We're over at the sidebar. This afternoon, we have scheduled amongst other things a conclusion of the hearing on the autopsy photographs. Mr. Cochran, you had something you wanted to say?
MR. COCHRAN: Yes, your Honor. As I understand it, Mr. Shapiro and Mr. Uelmen and I guess representatives from the D.A.'s office will, among other things, be going over photographs of the autopsy procedures in this case. And I have discussed it with Mr. Simpson, and it's his desire to not be present, he waive his appearance. And he has asked that those photographs, if they're going to be displayed, that the Court would cut the feed, which I'm sure you will be doing anyway. But he would like to go back to the jail at this point.
THE COURT: All right. Any comment?
MS. CLARK: No.
THE COURT: All right. The Court has no objection if he wants to waive his appearance, and I will accept Mr. Cochran's representation and Mr. Shapiro's representation that your client waives.
(At 12:00 P.M., the noon recess was taken until 1:30 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; FRIDAY, MAY 19, 1995 2:30 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. The Defendant is not present, his presence previously having been waived by counsel. All right. Counsel, your appearances for the record, please.
MR. KELBERG: Brian Kelberg for the Prosecution with Kevin Lynch.
MR. SHAPIRO: Robert Shapiro and Gerald Uelmen for Mr. Simpson.
THE COURT: All right. Good afternoon, counsel. I have a number of matters that have been submitted to me by the parties; and most recently since our last discussions, a letter dated May 12th, 1995 filed by Dean Uelmen on behalf of the Defendant. And I have a responsive letter dated May 16th filed by the Prosecution in response by Mr. Kelberg, and I also have five different sets of photographs that have been submitted to the Court. And in addition, since our last discussion, the complete autopsy reports. The most original letter to the Court dated April the 14th, 1995 included autopsy reports of both Mr. Goldman and Miss Brown Simpson, neither of which, however, were the complete autopsy with all diagrams and diagramming and addenda.
MR. KELBERG: I'm sorry, your Honor. Did the Court say they were with or without?
THE COURT: Without.
MR. KELBERG: My copies should show that they were with.
THE COURT: All right. My copy shows without. And, however, I was going to make a point for the record, since then, the Court has come in possession of the complete autopsy, as far as I know, as to each of the individual victims in this matter, and I have referred to those in preparation for any final argument that counsel wish to present. And let me thank counsel for their putting these arguments in writing as to each of the individual photographs because that helps narrow these down considerably. All right. Mr. Kelberg, since you are the counsel for the offering party, do you have any final comment?
MR. KELBERG: No, your Honor, except to summarize I think the basic points. Number one, the Prosecution must prove all elements of the offenses charged. And despite what was said by counsel at our informal discussion, it is not relieved by counsel saying, "We're not disputing that there may be premeditation and deliberation," or, "We are not disputing that there may be malice with respect to both of these murders." The point is, as the U.S. Supreme Court acknowledges and as the Ewell case Mr. Kennedy acknowledged by citing with approval the case from the United States Supreme Court, we must prove these things. And it is not going to relieve our obligation by counsel making a tactical choice which they think may be to their advantage in securing a verdict that they hope to reach--for the jury to reach at the conclusion of the case.
The second point I wish to make deals with the significance of the photographs to proving the issue of identity for the reasons that I've expressed with Mr. Lynch in our response letter as well as in the original materials and how these photographs do demonstrate factors that will go to identifying the perpetrator as Mr. Simpson. Mr. Cochran went into cross-examination of Detective Lange to try and establish that these might be something called Colombian necktie or necklace murders by drug dealers going after a welshing client perhaps rather than, as Detective Lange said, the process of rage being borne out by a perpetrator against a target. If this is in fact a rage killing--and these photographs do show I submit to the Court that, at least a jury can find that these were rage-motivated killings and murders--that the jury will then want to think who has that motivation, who could generate that rage towards one or the other or both of these individuals. And the photographs do assist the jury, if they believe from the photographs that these are rage-motivated murders, that the perpetrator is in fact Mr. Simpson based on the domestic violence evidence and other evidence that's been heard by this jury concerning not only the past relationship of the parties, but all the events of June 12th of 1994. I also--
THE COURT: Should I infer from your argument regarding a rage killing that I should consider voluntary manslaughter?
MR. KELBERG: No, your Honor. I don't believe that the Court is required to do that. I do not believe that the evidence, at least that I have heard--and I must confess that as interested as the public may be in this case, I actually have other responsibilities besides this matter and I have not had an opportunity to hear all of the evidence that has been presented. But I certainly, from the evidence I have heard and from the evidence from which I am most familiar, see no basis for this Court to say sua sponte that you see evidence that a reasonable man in Mr. Simpson's position under the circumstances would have his passions aroused to such a degree that this kind of activity that results in the murders of these two human beings shows an absence of malice. It is not, as the Court is well aware, a question of whether Mr. Simpson was a sensitive individual whose passions could be aroused, whose rage could be aroused by matters that would not cause a reasonable person's rage to be or emotions to be raised to that degree. And unless the evidence shows that it would be--that there is substantial evidence from which the jury could find that a reasonable person's emotions would be raised to that level, then not only is there no sua sponte obligation on the Court to give a lesser included of voluntary manslaughter, in my judgment, it would be improper for this Court to give that option to this jury.
Again, I do not speak for my colleagues who will be down I assume discussing the jury instructions and who are clearly more familiar perhaps with all aspects of the case than I am. But I give you my overview of my understanding of the evidence and also the evidence from the forensic pathology aspects. And I certainly see nothing that would suggest, from anything I have heard, that the evidence shows a reason for a reasonable person's emotions to be raised to such a degree that the absence of malice is established for voluntary manslaughter. The other points that I think are appropriate to be mentioned are that--the point somewhat related to the question you've raised, your Honor, of, you must give, in my judgment, second degree murder even if the Defense took a tactical view of saying, your Honor, it's a first or it's nothing with respect to both of these murders because there is in my judgment from the evidence I am aware substantial evidence from which a juror who is a reasonable juror could find the absence of proof beyond a reasonable doubt of premeditation and deliberate and the presence of malice, which would make, as to any particular one of these homicides, second degree murder rather than first degree murder.
I'm not saying that, as the Court is well aware from what I said at our last informal conversations, that the evidence is insufficient to prove beyond a reasonable doubt that each of these murders is a first degree murder. In fact, I submit there is certainly plenty of evidence from which a reasonable juror could so find. But I recognize what is the Court's obligation under the law to say whether or not there is any substantial evidence from which a reasonable fact-finder, that's the jury, could find a difference of view from what I view the evidence to be. If there is such evidence, it's a question for this jury to decide. And on that basis, it is the obligation of the Court under Wickersham to give both first and second degree murder and let the jury decide which is the appropriate degree. And these photographs go to premeditation and deliberation without question. For example, as the Court is well aware from our paper, the Prosecution contends that the last major wound inflicted on Nicole Brown Simpson was a major stab incise wound that runs from the left side of the neck over to the tip of the right earlobe and that that was inflicted at a time when she was incapable of offering any resistance.
And the evidence will show, as I offer an offer of proof, that that circumstance of how it was inflicted is most consistent with her being incapacitated on the ground in some fashion, having the perpetrator, who we contend is the Defendant, O.J. Simpson, coming up from behind her, placing a foot on the part of her back that has this non-specific blunt force trauma under the dress area and then pulling with one hand her hair and pulling her head back, which would obviously then expose the full area of the neck; and then with his right hand, taking a knife and drawing it across from the left to the right in the upward angle that is the appropriate angle created from such a positioning to cause what is this major wound that would sever both the carotids of the left and right and the jugular veins of both the left and right sides.
And that, your Honor, I think is evidence that the jury could use to find that this is premeditated and deliberate because after all, if this started as a matter of emotion and rage and it got out of hand, Nicole Brown Simpson would clearly be able to identify the perpetrator, and even if Mr. Goldman didn't know Mr. Simpson on any kind of social basis, Mr. Simpson is the kind of person who is hard not to be able to identify if in fact you saw the face of Mr. Simpson. He is a nationally, internationally known face. So there is certainly a motive provided to administer a coup de grace that would with certainty, with certainty lead to the death of a person who could quite clearly identify Mr. Simpson as the murderer in this instance.
So that's just one section of the wounds that are available. There are multiple fatal stab wounds to Mr. Goldman on the abdominal aorta, two to the chest. He's got a fatal stab wound to the left side of his neck and a fatal--a stab wound which has the appearance of being fatal, depending on the depth of penetration, because the wound area to the left side of the ear and also the wound that originates in the area of the ear share a common pathway. And so it's very difficult to determine which may have cut the jugular vein on the left side of the body. But in any event, a fatal wound. And these are clearly, clearly fatal stab wounds that can be interpreted by a jury as being inflicted when there was in fact limited if any resistance by Mr. Goldman and which would be certain to--I hope I said Mr. Goldman, not Mr. Golden.
THE COURT: No. You said--no. I was just--the reason the quizzical look, because I was just pondering how circumstantially you would come to that conclusion.
MR. KELBERG: You can find from the appearance of the stab wounds, your Honor, as to whether they have a cutting component or they appear to have a direct thrust without twisting and torquing of either the knife or the body. And if the person is incapacitated, unable to resist, unable to move and the knife is thrust in a basically direct fashion into the body and removed, then you can have a stab wound which on the surface will not have a cutting component and give some evidence of this lack of twisting and turning. And that is evidence which I think the jury, number one, will hear about and, number two, can use to interpret whether in fact Mr. Goldman was in a position where he was offering any resistance, and if not, whether a thrust to that kind of vital area of the body reflects evidence of premeditation and deliberation. Clearly, I think it's no question, it reflects evidence of express malice.
Whether it reflects the kind of careful weighing of the pros and cons of one's action is another matter. And I'm not saying that necessarily a jury would find beyond a reasonable doubt on the basis of any one of those particular wounds that it does. But I believe it will be a matter for the jury to decide. So the Defense--to basically not rehash everything that we have said in our document, I think the Defense quite understandably is trying to take a position to keep from this jury the best evidence that exists of what we contend O.J. Simpson did to his ex-wife and to Mr. Goldman and to keep from this jury seeing that best evidence which will, when taken with all the evidence, establish not only premeditation and deliberation and express malice, but will also establish the identity of Mr. Simpson as the perpetrator.
We have exercised discretion, your Honor. The Court has all the available photographs from which we could select photographs to offer. We attempted very diligently to pour through these photographs and with a fine tooth comb go over them and see, all right, does this photograph show something that this photograph doesn't, does that photograph show something that the other one doesn't and do we need both, is there a cumulative effect to these. And we have with the greatest effort possible, your Honor, attempted to dwindle these down to the minimum number of photographs to establish for this jury the facts. It is no secret, your Honor, that there is in the public mind the view that the autopsies were not properly performed by Dr. Golden. And there is no question, as we have already discussed on the record the last motion that was heard involving Dr. Golden's prior mistakes, that the evidence will show he made a number of mistakes, he made a lot of mistakes. And the evidence I submit will show that not one of his mistakes is significant. But that is something that we must prove. That is something that will go to the question of the significance or lack of significance to any of the findings.
That will go to the significance or lack of significance of throwing away the stomach contents of Nicole Brown Simpson. All of these things come into play when the competency of what Dr. Golden did is legitimately brought into question. And the Defense has brought that into question. And as I point out in our response letter, even if they didn't under 785, the question of his competency is something which even the party calling the witness may go into on direct examination. I couldn't help but note somewhat ironically when I was quickly going over the transcript the last time we were here on the record on April 3rd, Dean Uelmen's remarks when we were talking about the evidence both of the alleged gun incident and talking about the incidents of mistakes made by Dr. Golden in 1990. Looking at page 2,100--I'm sorry--21,000--you've been at it much longer than I thought--21,484 beginning at line 25, Dean Uelmen saying: "Now, with respect to all of this evidence, what we are talking about is the weight and the credibility that the jury is going to give to the testimony of Dr. Golden with respect to some very key issues in this case, including the time of death, including the nature of the wounds, whether the wounds indicate that they were made by two different weapons as Dr. Golden indicated in his preliminary hearing testimony."
I might point out, your Honor, as I told informally Dean Uelmen, I believe that's a misstatement. I think the preliminary hearing transcript in fact reflects that what Dr. Golden said was all of the wounds are consistent with a single knife, but he cannot exclude the possibility of a second knife because a single-edged knife could have caused all of the wounds, some of the wounds could be caused by either a single-edged knife or a double-edged knife, and you cannot tell the difference. And on that basis, he cannot say to a reasonable medical certainty that a second knife could not be involved. But the evidence will show that a single, single-edged knife could have caused all of these sharp force injuries, these stab wounds, these incise wounds and so forth.
The second comment that Dean Uelmen made on page 21,487, line 23, again talking about this evidence--it's the Court actually saying: "Dean Uelmen, let's cut to the chase. What is interesting about this is an expression of bias against perhaps these attorneys and a demonstration of professional incompetence," which is I believe what Dean Uelmen was suggesting the evidence would be relevant to establish. And on 21,492, page--line 15, Dean Uelmen continued: "We have to note that one of the key areas in which Dr. Golden is going to be testifying is his examination of the wounds of the victims and rendering opinions about whether those wounds are consistent with a particular knife which he was given by Detective Vannatter, whether they are consistent with more than one knife and whether they are different morphological wounds."
I think it's quite clear that between Mr. Cochran's opening statement and Dean Uelmen's remarks at our previous hearing, that the issue of Dr. Golden's competency is brought into play and he does have involvement in matters that are of significance to this jury, the nature of these wounds, if one knife can cause all of these wounds. And I must say that unlike Dean Uelmen's letter, I believe as an offer of proof, the evidence will show that forensic pathologists do look at photographs and can tell from the appearance of the wounds on the surface of the body the nature of the knife that can cause a particular stab wound. We'll be hearing a lot about blunt ends and forked ends, and I think the Court probably from its experience as a trial Judge in a criminal court has heard these terms before and will hear them again and how you differentiate between a double-edged knife stab wound and a single-edged knife stab wound. And the photographs are the best evidence. They are really the only evidence that will clearly be available, especially where Dr. Golden's competency is called into question. So you take all of these matters into play, your Honor--and again, I understand why the Defense doesn't want the jury to see these photographs. But Justice Gardener had it right, and I think that's how we ended our response letter to the Court, when Justice Gardener said: "The average juror is well able to stomach the unpleasantness of exposure to the facts of a murder without being unduly influenced. The supposed influence on jurors of allegedly gruesome or inflammatory pictures exist more in the imagination of judges and lawyers than in reality.
"Second, a Defendant has no right to transform the facts of a gruesome real-life murder into an anesthetized exercise where only the Defendant, not the victim appears human. "Jurors are not and should not be computers for whom a victim is just an element to be proved, a component of a crime. A cardboard victim plus a flesh and blood Defendant are likely to equal an unjust verdict." Now, I know the Court is aware that we were to get together--and we did get together earlier today--to possibly discuss and work out any stipulations. I believe that the only stipulations we can work out are a conditional two stipulations that require the Court to make a ruling on the third element, but they deal with the two photographs of Nicole Brown Simpson clothed as she was seen at the Coroner's Office. And the stipulations that I believe we can enter into and the photograph be withdrawn, if the Court rules in a particular way, are that, number one, there is no evidence that Nicole Brown Simpson was sexually assaulted or that she was the victim of an attempted sexual assault in the course of the events which led to her murder.
Where we have the need for the Court to rule is whether or not there is any relevancy to the question of whether or not a sexual assault kit should have been taken on the theory that that sexual assault kit might show evidence of previous sexual activity on the part of Nicole Brown Simpson which the Defense might suggest is relevant in some fashion. Our position would be that it would be completely irrelevant or certainly subject to 352. And I'll leave it to Dean Uelmen and Mr. Shapiro to suggest how they believe it could be relevant and so forth. If the Court finds it is irrelevant, I believe that based upon the stipulations that I mentioned, if in fact they are agreeable with counsel, we will withdraw B1 and B2 as photographs. If the Court finds that, however, it is relevant to go into the issue of a sexual assault kit, then the People cannot enter into the stipulation because the photographs are extremely important to establish why no sexual assault kit was taken. And I think unfortunately that's going to be the limit of what we can agree upon. As the Court is well aware, the Defense has objected to every photograph and we have taken what I believe is a reasonable conservative view by trying to dwindle these photographs down to the minimum. I do not believe this Court will find from our descriptions and our basis of relevancy that any one photograph can take the place of any other photograph. There is a purpose to each photograph. And although some of the photographs on first blush may have some common nature in what they show, in fact every photograph does have a purpose that cannot be served by any other photograph in the select group that we have offered. On that basis, your Honor, I'll submit the matter.
THE COURT: All right. Let me--Mr. Kelberg, before you sit down, let me ask you one other question. I'm also curious as to the manner in which you intend to present these photographs.
MR. KELBERG: I'm glad you mentioned that, your Honor, because--in fact, I was talking to Mr. Shapiro just before the Court started the afternoon session and I have given that great thought. With due respect to the people who sit in the audience through this trial, it is my position twofold, for twofold reasons, that the photographs should not be put on the overhead display. My position would be that these photographs would be, as they are in just about every other murder case that is tried in this building, put on boards and positioned for the jury to see. Now, it's my understanding in talking to Mr. Shapiro that Mr. Simpson would not object if the boards were positioned in such a manner that Mr. Simpson could not see the photographs as they are being displayed to the jury. And they would be displayed in my judgment, your Honor--I'm not that familiar with the dynamics of the cameras, but at least initially, my position would be to position them roughly in the middle of the jury box area so that jurors on both wings will be able to see as well as the jurors who are in front. And in so positioning, I don't believe the people who are behind me at the moment or those who will come and take their place will be able to see those photographs. In my judgment, there is a right of privacy that continues past death that both applies to the victim and to the victim's families who may or may not be present. There's also an actual relevant reason in my judgment why that is a better presentation than putting them overhead. Because we will have these--
THE COURT: All right. Let's assume that I agree with you that overhead projection is not an appropriate way to display these. The photographs that you have given to me appear to be approximately what, 10 by 14?
MR. KELBERG: I don't believe so. I think they're 9 by 11 or 12 as I understand from what the Coroner's office produces. I haven't measured them to be candid with the Court, but that's my understanding.
THE COURT: All right. Are these the photographs that you intend on offering?
MR. KELBERG: Yeah.
THE COURT: I mean in this size.
MR. KELBERG: With one exception. There is one what I would call a one-to-one photograph, which is in essence a life-size photograph. And I have it here. It is to the back area of Nicole Brown Simpson where the non-specific blunt force trauma is. And that photograph I would offer because quite simply, your Honor, it shows the area of the non-specific blunt force trauma much more clearly than the photograph that the Court has. The photograph itself is not significantly bigger as to the photograph, but without taking the photograph out, what I'm holding up is the size. It's got a big border around it in order to get the area up to one-to-one size. And I can approach with the photograph if the Court wants to see what it looks like.
THE COURT: Which photograph is this?
MR. KELBERG: B9.
THE COURT: B9.
MR. KELBERG: And counsel has been provided copies of all of these.
THE COURT: Is this the one that Dr. Veil evaluated?
MR. KELBERG: Yes. Yes. Correct.
THE COURT: All right.
MR. KELBERG: So I can leave the package if the Court wants to take a look or you'll take my word for it?
THE COURT: No. I just want to know which one you're talking about.
MR. KELBERG: And that is the only one. But otherwise, obviously, if you put them on boards, your Honor, they have to be big enough that the jurors can see and they can't be so small that the detail is not apparent. So what we believe is that this is a reasonable accommodation. This is roughly the size that is commonly used in courtrooms throughout this building and throughout this county when homicide cases are being tried. So that would be my preference, to do it that way and keep the jury, which quite frankly are the only 17 people who matter as far as seeing these photographs besides Court and counsel, aware of what they are going to be hearing in the way of testimony and correlating it with the photographs. And on that basis, I would like to do it in that fashion and not have anything in the form of a photograph up on the overhead.
THE COURT: Okay. All right. Thank you, Mr. Kelberg. Mr. Shapiro.
MR. SHAPIRO: Thank you very much, your Honor.
THE COURT: All right. Good afternoon, sir.
MR. SHAPIRO: Good afternoon, your Honor. I want to direct my comments specifically to the issue at hand; and that is the autopsy photographs that the People are offering to have displayed before the jury. Clearly, these are pictures that are horrendous to anyone, even trained professionals, especially the up-close and sterile photographs of the throats of both of the victims in this case. They are further exaggerated by the fact that some type of block was put by the Coroner under the neck to take the wound and open it up so that you can clearly see into the interior of the throat. If there was ever a photograph where the prejudicial effect would outweigh any probative value, the photographs of this neck in this condition certainly do. The danger that counsel spoke about--
THE COURT: But, do you know--Mr. Shapiro, do you know what specific photographs you're referring to?
MR. SHAPIRO: Yes. Yes.
MR. UELMEN: G37 for Mr. Goldman and B13 and B16 for Miss Brown.
THE COURT: All right. Just so the record is clear.
MR. SHAPIRO: And the Court must look at these. And even though you don't see the brace there, I can tell you from our experts--and I don't think there's any dispute--that the neck is propped up in a way to attenuate and exaggerate the injury. As far as whether or not this jury will see sterile or get a sterile view of this crime scene, I don't think there's any chance of that happening. The testimony to date and the crime scene photographs have been described as being a very, very bloody scene, one of the bloodiest that the detectives have witnessed or investigated. So that's not an issue. The issue here is what does the jury get that they can't get from another source by these photographs that are likely to cause revulsion and horror on the part of anyone who looks at them .
And I would say the Coroner is here to offer testimony on two issues. First, the cause of death--and quite frankly, there is no dispute between the parties on the cause of death on this case. Both victims died as a result of serious injuries to the throat. They will be more specific as to whether it's the carotid artery on one, the jugular vein, but both of these were victims were killed by knife wounds to the throat, and that is not an issue. The second is time of death. And the photographs in no way offer any evidence whatsoever that will help this jury in the time of death. As to the type of weapon, since no weapon has been recovered, the type of weapon is irrelevant, unless it can be shown that there is some nexus between some weapon connected with Mr. Simpson. And we have received no discovery on that whatsoever. As to whether there was one or more perpetrators, then the issue comes down to whether or not the injuries are only consistent with one weapon or could have been caused by more than one weapon. And the testimony has already been proffered in that and there will be no dispute. Counsel has informed me that Dr. Lakshsmanan and Dr. Golden will both be testifying that they could have been caused by more than one weapon.
So when we get to the real issues before the jury, there can only be one reason to display these photographs. And that is to inflame the passions of the jury so that they are more likely to convict than acquit based on the nature of the autopsy photographs, not the crime scene photographs which are already before the jury. In addition, counsel has informed me, as we would expect, that they are going to do charts to demonstrate the location of each and every injury. And again, the jury will then have a clear view of these injuries. So in order of importance, we would respectfully request the Court to consider the following: That any autopsy photograph of a cleansed throat wound that is propped up is totally improper and has no probative value whatsoever. That the full-body photographs of both of the victims clothed or partially clothed are only inflammatory and duplicative of photographs at the crime scene, and to see them on a sterile table causes nothing but to inflame the jury. Counsel's argument about the fact that a sexual assault kit was not used on these victims, therefore, they want to show the clothing really is not of any moment because we are willing to stipulate that these deaths were not caused as a result of a rape or sexual assault.
On the other hand, we believe that a sexual assault kit should have been taken and that probably their own witnesses will agree with that to establish time of death. You can determine whether or not there was any sexual activity that took place with the victim, and at that point in time, that may be a way to establish when the person was last alive. At least, it's something to explore. And a clothed or unclothed body has nothing to do with those photographs. And then the last thing which I believe has some evidentiary value, but again the prejudicial effect outweighs it, are the individual stab wounds in the body. And there when you get down to the issue of the type of weapon and how many weapons were used becomes important. So for isolated photographs of that, even though we believe they can be demonstrated on boards and drawings, certainly we would say that in a weighing process, that one certainly at least weighs closely. And again, we would ask they not be included before the jury because we don't think that the probative effect is significant and that the prejudicial effect is great. But clearly, your Honor--you've been in the courts your entire legal career, and I would say it would be very rare that anyone would look at these photographs and not really get sick to their stomach no matter how many photographs you've looked at, no matter how many crime scenes you've seen and that adding the autopsy photographs can only do one thing; and that's infuriate and inflame the passion of the jury. With your permission, I would prefer if Dean Uelmen addressed some of the other issues that were raised, especially if you want to get into jury instructions, things like that. I can do that if you want to stick to the one-lawyer rule.
THE COURT: Well, since Dean Uelmen's come all the way down this afternoon, I'll hear from him.
MR. SHAPIRO: Thank you very much.
THE COURT: On that specific issue. That means I'm have to hear Mr. Kennedy on the flip side.
MR. KELBERG: It's Mr. Lynch, your Honor.
THE COURT: Excuse me. Mr. Lynch. I'm sorry.
MR. KELBERG: At least he would like to be call appropriately.
THE COURT: Sorry.
MR. UELMEN: Thank you, your Honor. I will be mercifully brief. I was watching Rumpole of the Bailey last night and I'm going to borrow a line from him. He suggested in the case he was litigating that there was a real danger of premature adjudication. And I think we have that danger presented here in terms of the issue of premeditation, deliberation and malice in the context in which it's being presented in this case. Clearly, the Prosecution does have the burden of proving these elements beyond a reasonable doubt. But the issue that your Honor has to address is whether there is need for this evidence to prove these elements in the face of any real issue being presented in the case in the context of a case in which the Defense is really not putting these factors in issue in terms of the Defense that is being presented. Clearly the Defense being presented from the outset of this case is that Mr. Simpson did not do it. Not that it was done without premeditation or without malice, but that he didn't do it. So the position of the Defense will be that it would be inappropriate for the Court to instruct the jury as to lesser included offenses because those instructions would be inconsistent with the Defense being presented. And we will at the appropriate time present authority to the Court. I can--if your Honor wishes to look at some of these cases at this point, we'll be relying on People versus Trimbell, 16 Cal. App. 4th 1255, a 1993 case, and People versus Hardy , 2 Cal. 4th 86, a 1992 case for the proposition that it is improper for the Court to give instructions as to lesser offenses over the objection of the Defendant when those instructions are inconsistent with the Defense presented. Now, there are other cases saying that the Court on its own may instruct as to lesser offenses that are consistent with the Defense, cases such as where the Defendant maintains that it was an accident. And the issue that's presented by the evidence is the intent to rebut or to contest the showing of an accident, but it's not inconsistent with the Defendant's admission that he actually did the act. But here we will have a situation in which these instructions would be inconsistent with the Defense. But again, I come back to the point that your Honor doesn't need to decide at this point what instructions are going to be given to the jury with respect to lesser included offenses.
What your Honor needs to decide at this point is whether this evidence, which is highly inflammatory, very prejudicial in terms of the emotional response it is likely to invoke from jurors who have never been exposed to photographs of this nature before, in terms of what is actually at issue in this case, what issues the jury actually has to decide. And our contention is of course that all of these elements can be proven, the Prosecution can meet its burden without burdening the jury's ability to rationally Judge this evidence by highly inflammatory and emotional evidence. The second quick point I wanted to make was very specifically directed to photos G1, G2, G5, B1, B2 and B5. These are the full-body photographs. And your Honor will discover that the only wounds referred to by the Prosecution that appear in these full-body photographs that they claim do not appear in the more detailed closer photographs are abrasions. There are no knife wounds. And if they're saying the real need for these pictures is to illustrate the nature of the knife wounds, the nature of the abrasions is not going to be an issue. If it is, of course, they can just prop a very close-up photograph of the abrasion. But to allow in these full-body photographs simply to show the presence of an abrasion that is not really going to even be an issue with respect to any of the testimony that's going to be elicited again really weighs on the side of overwhelming prejudice being balanced against a very minimal probative value.
THE COURT: But what would you say in response to the argument that those are necessary to show the nature of the struggle that went on there?
MR. UELMEN: Well, the answer of course is that these photographs don't show the nature of this struggle. Perhaps individual wounds, if there's going to be opinions offered with respect to how a particular knife wound occurred, for example, Defense wounds on the hands, that sort of thing, that's not what these pictures show. They simply show the entire body laid out without enough detail with respect to any of these wounds to draw any conclusions from them. The conclusions they want to draw will come from the very detailed close-up photographs with respect to the knife wounds, and none of the very minor abrasions that they point to that appear in these photographs that don't appear in the others really are going to be relevant with respect to litigating any of those issues. So with respect to these six photographs, there is really no need to expose the jury to them in terms of any of the issues we're talking about litigating. Now, the final point I wanted to make was, with respect to individual photographs being used to show the nature of the wounds, the real gist of the People's argument to utilize these photographs is that they want to anticipate the challenge that they see coming with respect to the competence of the Coroner in terms of the conclusions that he is going to draw.
THE COURT: Well, hasn't Mr. Cochran in his opening statement sort of fired the salvo across the bow of the Prosecution's ship here?
MR. UELMEN: Well, the salvo was a very--it was not specifically directed at any particular wounds with respect to the competence of the Coroner. And what we're dealing with here is, in effect, an argument that because we have an incompetent Coroner, that should give us a wider entry to tracking out all of the full color photographs taken during the autopsy and showing them to the jury even though if we had a competent Coroner, this exercise would be unnecessary. I would fully concede that if we get up and we challenge the Coroner and we say, "your conclusion about this particular wound is incompetent. There's nothing here in this wound to justify the conclusion that you come to," and the Coroner is then in a position of having to explain how it is that the conclusion is justified from the wound, that the best thing to do is bring out the photograph. And obviously we will have opened the door then to allowing that photograph to be used and we will have nothing to complain about if the photograph is then used. But what they are proposing is to anticipate that such a challenge will be made with respect to every one of multiple stab wounds of both victims and that therefore justifies them on their direct examination before we have even challenged the Coroner to bring these photographs out and display them to the jury. And I think a much more rational approach to this process would be, if a particular challenge is made with respect to a particular wound, all right, we'll bring out the picture. But until that happens, there is no relevance in terms of any contested issue to require that this highly inflammatory evidence be presented in advance.
THE COURT: Well, Dean Uelmen, haven't we also got the problem though where you have asked permission of the Court to use two cases in Dr. Golden's past autopsy history where it's conceded that he made mistakes on certain opinions that he rendered regarding other wounds? I can't recollect--
MR. KELBERG: Gunshot wounds, entry, exit and distance from the point of fire.
MR. UELMEN: Your Honor, it's incorrect to say that we asked permission. We responded to a motion in limine filed by the Prosecution--
THE COURT: I'm sorry. You're correct. Limit.
MR. UELMEN: --to prevent us from asking those questions. And of course, our argument was that these prior incidents will be relevant in terms of the weight that the jury should give to the opinions of the Coroner in terms of his competence.
THE COURT: Okay. Thank you, sir.
MR. UELMEN: Thank you.
THE COURT: Good to see you again.
MR. KELBERG: May I briefly respond, your Honor?
THE COURT: Briefly.
MR. KELBERG: I'm glad to see that Dean Uelmen and I share a fondness for Rumpole of the Bailey, but unlike last night's episode, I prefer to recall--
THE COURT: Wasn't he the client?
MR. KELBERG: He was the client last evening. But I prefer to recall an episode from several seasons ago where Rumpole was regaling others with respect to a criminal homicide case where he defended an individual charged with murder, and he referred to the case as a case of blood. And he relished in it because he brought out his forensic pathology textbook and he was able to cross-examine a forensic pathologist on blood evidence and to basically show that in fact, a mistake had been made in an interpretation by the expert; and as a result, his client was acquitted. And he relished that. Well, this is a case of blood, and it's a case of blood because it has been made so by the Defendant's actions. This Court must recall that the standard to apply on these photographs is not whether the prejudice outweighs the probative value, but whether the probative value is substantially outweighed by any prejudicial effect. Now, as counsel talks about just briefly, going through the issues, Mr. Shapiro says the type of weapon is irrelevant unless we can tie a weapon to Simpson. Not true. If the jury believes, as the evidence will show, that one weapon could have caused all of these stab wounds, then the jury is going to ask itself, okay, who is physically superior, agile and has a motive to murder these two human beings? If one knife could do it, who's a person who physically could do it with one knife and who would have a motive to do it with one knife? And of course, your Honor, I anticipate my colleagues at the end of the case will suggest that the person who fits that criteria is seated at the end of counsel table when the jury will hear those arguments. The second thing is about the time of death in the sexual assault kit--
MR. SHAPIRO: Your Honor, I take exception to that.
MR. KELBERG: That's--I put--actually-- I'm sorry, Mr. Shapiro--that shows I haven't been watching. I gather Mr. Shapiro sits at the far seat at counsel table unlike the usual situation, but obviously I added the caveat that when the jury hears the argument. But actually, Mr. Shapiro may be the one who's at the far end of counsel table. We'll have to change that to the person who's kind of snuggled between Mr. Cochran--and I'm not sure who is on the other side at the time of the jury's appearance. The time of death in the sexual assault kit. Counsel it seems to me has got to offer some evidence how a sexual assault kit to show sexual contact unrelated to the criminal homicides that are being prosecuted here will tell this jury whether Nicole Brown Simpson died at 10:15 versus 11:00 o'clock. The evidence is clear already she was alive at 9:42, telephone call, telephone records. We know she was alive a period thereafter. Why? Because she talked to Ronald Goldman.
She called Mezzaluna restaurant. And there's been a witness who testified that she called and who then put her in contact with Mr. Goldman. We know Mr. Goldman's alive at that time because he's on the other end of the line and we know he's alive for some further period of time because he's got to go home, he's got to change clothes because when he's murdered, he's not wearing what he was wearing at Mezzaluna restaurant. Now, is the Defense going to actually offer a witness who is going to say that a sexual assault kit would have shown if there was semen found, that one can determine whether that semen was deposited between 10:00 o'clock in the evening and 11:00 o'clock in the evening? I would like to see that expert and I would love to cross-examine that expert. I don't think they're going to have somebody who is going to be willing to come into court, take an oath to tell the truth and talk with reasonable medical certainty that such a thing exists. It does not. And unless they can put that into an offer of proof of a real witness with real credentials, I submit to the Court it's completely irrelevant. If the Court finds it's irrelevant, I have no problem stipulating, and we'll withdraw B1 and B2. But I don't believe that they can show it's relevant, and clearly, 352 comes into play even if a 782 type of analysis that would normally apply with victims of sexual assaults and limitations on cross-examination for unrelated sexual activity might not be appropriate to discuss. A few other points. The nature of the assault is extremely important because if the nature of the assault is such that the jury finds that there was a very short and very violent attack on Mr. Goldman from which he basically was unable to defend himself and at the same time on Nicole Brown Simpson, she has relatively few if any injuries, it will be clear to this jury how one man could kill these two human beings in the short order of time it would require and leave the kind of evidence that these photographs demonstrate were left from the murderous assault. Now, with respect to the lesser included's--Hardy, I haven't looked at in a while. I'm not terribly concerned about Trimbell because it's a Court of Appeal case and we have Wickersham which to my knowledge has not been overruled. There is a difference with respect to instructions on affirmative Defense related type of lesser offenses. But that's not the same thing as lesser included offenses. And as we quoted in our response letter, Wickersham says, the tactics of counsel do not control the obligation of the Court because it's the Court's obligation to see that justice is done, that jurors are not put in the untenable position of saying to themselves, hey, you know, I believe this person's guilty of second degree murder, but I don't think he's guilty beyond a reasonable doubt of first degree murder. But gee, I've only got the option of first degree murder or finding the person not guilty. Am I supposed to acquit a murderer because I'm not convinced he committed first degree murder or am I supposed to convict a man of a crime I don't believe he committed, first degree murder, simply because I'd rather see him convicted of first degree murder than walk out the door because I believe he's a second degree murderer. And that's the Hobson's choice I mentioned before that the Court is to ensure this jury need not be placed in to making. With respect to the G1, G2, G5, B5--B5 I think in our original letter, your Honor, we have pointed out, that will be cropped. And the G5 cannot be cropped because it also shows the abdominal flank wound, the fatal abdominal stab wound on the left flank. But because as to Miss Brown Simpson, the lower torso leg area is not relevant with respect to the purposes of that photograph we have submitted in the writing, and we have not cropped it because we want to see what the Court wants us to do with respect to the photograph. But it would be cropped so that the Court is clear. We get back to Dean Uelmen's letter, and he's saying, hey, look it, we get to raise the issue of incompetency. And as the Court says from its recollection, it seems that Mr. Cochran's already done that. Let's face it, Judge, does the Defense get to open the door, then slam the door closed on the Prosecution when it wants to bring the full facts out and then open the door again when they do cross and make it appear to this jury that this Prosecution is trying to hide from this jury the true facts of what Dr. Golden did or didn't do? As we said again in our informal discussion, is the Court going to tell this jury, oh, ladies and gentlemen, the reason the D.A. Didn't bring this evidence out of Dr. Golden's mistakes is because I said, in accordance with the wishes of the Defense, that they couldn't do it and that it was only if the Defense went into his incompetency that the Prosecution on redirect examination can go into this? There is such a thing as credibility with the jury, your Honor and credibility to the system of a search for the truth, and we intend to be fully credible. In setting aside 785 which says a party calling a witness can attack that witness' own credibility, the fact of the matter is that the purpose of these photographs is not to show that Dr. Golden made mistakes. The photographs will in fact show that he made mistakes. The purpose of the photographs is to show that O.J.
Simpson murdered these two human beings and murdered them with premeditation and deliberation. There will be the concomitant effect that Dr. Golden's mistakes will be brought forth, and they will be brought forth fully and with candor on direct examination as we are entitled to do and as this jury is entitled to hear. But make the record clear that we are not using the, quote, real purpose that Dean Uelmen attributes to us of trying to bring forth Dr. Golden's incompetency for the purpose of getting otherwise irrelevant photographs before this jury. We are bringing these photographs forward because they will show that one perpetrator sufficiently motivated with the physical strength and agility murdered these two human beings in the span of a very short period of time. And these photographs will prove that. And unfortunately for Dr. Golden, they will also prove that he made a number of mistakes, and they will also prove that not one of his mistakes bears any significance to the case. I'll submit the matter, your Honor.
THE COURT: All right. Madam reporter, how are you? I had a question I needed to ask of Mr. Kelberg.
THE COURT REPORTER: Fine.
THE COURT: Mr. Kelberg, Dean Uelmen does raise the issue regarding the exaggeration of the nature of some of the wounds by the Coroners placing the block on G37, B13 and B16, which does expose it in a manner that appears unnatural.
MR. KELBERG: It is not necessarily unnatural, your Honor. The reason there is a gape to these wounds is because of something called Langer's lines. The way the tissue is in the body, when you cut along that line, you are going to cause the wound to separate and it will appear to gape. But the pictures show not only that it is a gaping wound, but they will give an indication of the depth of the wound and they will show, for example, in the case of Nicole Brown Simpson, that what's called the right thyroid cornu, C-O-R-N-U, was cut by the knife because it went that deep. It will show the area of the cervical spine that was also contacted by the knife going that deep. It will show the area how deep you must go to get to the jugular, how--
THE COURT: I gets the depth issue.
MR. KELBERG: Okay. It also shows two superficial incise wounds, very superficial. The Court will recall them, they're parallel, almost parallel. I think we described them as semi-parallel in G37, Mr. Goldman. I don't know if the Court wants to pull the photograph and refresh its recollection. That's a very significant photograph. Besides it shows so many of the injuries, those superficial incise wounds in a parallel nature suggest control, control of Mr. Goldman by the perpetrator. And again, this is material that will go to premeditation and deliberation.
THE COURT: I recall.
MR. KELBERG: All right. So that this photograph shows many things besides the nature of the stab wound. The stab wound which is shown in G37 if I may pull mine and turn it so--I just want to be sure that I am covered.
THE COURT: I would direct the still photographer and the television camera not to attempt to--Mr. Kelberg, you're doing that the exact wrong place.
MR. KELBERG: Oh, I'm sorry. As I said, I don't know the dynamics of this court. Can the Court direct me to where the black spot is where apparently no one can watch you? Can I crawl under the desk or something? Let me see if I can do it this way.
(Brief pause.)
MR. KELBERG: Almost like playing cards unfortunately, your Honor. The photograph in the appearance of the stab wound here on the left side of the neck to Mr. Goldman is relevant because, as we again mentioned at the informal conference, Dr. Golden in his original report interpreted this stab wound and a stab wound here around the left ear and then going down the side of the face as being the product of one wound. And in his addendum, which is also part of the materials I think you, if you didn't have with our original letter, you do now have as part of all of the autopsy materials, he changed his opinion to reflect two stab wounds. That wound is important to see for the purpose of interpreting is that one stab wound producing two injuries or is it two stab wounds producing two separate wounds. With respect to the G13, G16 and in particular, the major wound that is the gaping wound, what will be important, your Honor, is, those photographs show that there is no cutting around the margins of that incise stab wound, which will be significant for the Coroner to conclude from the absence of that that Nicole Brown Simpson was incapacitated and unable to resist the knife that is being drawn across her throat, that the absence of that kind of cutting action along the sides of the wound demonstrates that she was in fact incapacitated because normally, if you were physically able to respond, you would be moving your head around; and in so doing, you would create margins around the outer edges--I am sorry--cuts around the outer margins of that incise stab wound. And, your Honor, again, these are not unnatural because in fact, that is the way her head was in fact held at the time the stab wound/incise wound is inflicted. It is most consistent with the head being held back and exposing the full area of the neck to create that kind of gape.
THE COURT: All right.
MR. COCHRAN: Your Honor, may I address just a few points?
THE COURT: Few points. Madam reporter?
THE COURT REPORTER: Fine.
MR. COCHRAN: Your Honor, with regard to the depth of the wounds on either of the victims, we are not going to contest that and we could stipulate to that as a matter of fact. Mr. Kelberg demonstrated how easy it is to simply articulate that. One need not look in someone's throat if somebody offers competent testimony that they have a sore throat. And the same thing here. We need not look into the actual cavity of a body to determine an injury that can be described without contest by the Coroner. With regard to the competency issue, if Mr. Kelberg in fact is telling your Honor that the Coroner who did the autopsy in this case is incompetent and they have a duty to bring that forward, don't they have an equal duty not to present a witness who is incompetent? And finally, with regard to the need to do a sexual kit to determine whether there was any sexual activity, we are not required to tell the People what our Defense is, but we could easily suggest to your Honor a scenario that if we can account for the whereabouts of Nicole Brown Simpson the entire day up until the time she left Baskin and Robbins and put her with other people and show during that period of time, that when she was at a concert or at an ice cream parlor or in the accompaniment of her children, that circumstantially no sexual activity would ever take place, but that there was evidence of sexual activity, the window could be narrowed to a time after perhaps she had a visitor. And I think that would be very relevant evidence to this jury. Thank you.
MR. KELBERG: Your Honor, could I just correct the record briefly?
THE COURT: Correct the record?
MR. KELBERG: As to what Mr. Shapiro said about what we have an obligation to do or not to do in the way of presenting witnesses. Very briefly.
THE COURT: No, I don't think you need to address that. All right. Thank you, counsel. As you know, this involves--
MR. SHAPIRO: Your Honor, I have to correct something. I said Baskins and Robbins. It was Ben and Jerry's. Mr. Dean Uelmen pointed that out to me.
THE COURT: All right. Counsel, as you know, this involves literally dozens of individual decisions that I have to make with regards to each one of these photographs. So it will take me some time to again go through them individually. But I will issue a written ruling as to each one of these.
MR. KELBERG: Your Honor, could I--
THE COURT: Let me just add, the question I wanted to ask though was timing.
MR. KELBERG: Exactly.
THE COURT: Mr. Kelberg, my guess is that we will see Mr. Sims probably for the remainder of Monday and perhaps into Tuesday. We will probably see Miss Montgomery probably maybe even for the remainder of the week. Maybe less than that.
MR. KELBERG: I had a somewhat different timetable presented. I talked with Mr. Shapiro, Dean Uelmen again. I think no one is certain. We have to be prepared to go sometime next week, although I think we probably both agree or all of us tend to agree that it's more likely it would be the Tuesday after memorial day as a starting point. But I believe there's another witness besides Miss Montgomery who will be called as part of the DNA presentation.
THE COURT: I think Dr. Weir.
MR. KELBERG: No. That's actually not the name--I believe Mr. Yamauchi is going to be called. I'm not sure whether there's anybody else besides Mr. Yamauchi and Miss Montgomery, but I was led to believe we had two witnesses for certain after Mr. Sims has completed his examination.
THE COURT: Well, we're going to need to see Dr. Weir or somebody for some numbers.
MR. KELBERG: I'll pass that information on if it hasn't already been communicated.
THE COURT: All right.
MR. KELBERG: But--
THE COURT: Let me ask you the more important logistical question. How long do you need to put this exhibit together?
MR. KELBERG: If in fact it's going to be after memorial day and the Court could issue a ruling by late next week, that would be fine. But if we get a situation where we have to go sometime Thursday or perhaps Friday morning, I would certainly like to have a decision by as early on Wednesday as possible to have the time.
THE COURT: So you would like one full working day in between?
MR. KELBERG: I think we would need more than one full working day. It depends again on--we have had boards that are prepared in a mock-up situation so that depending on which photographs the Court allows, we are going on the assumption initially that our photographs that we have proffered will be admitted. And as a result, the boards are prepared with an outline as to the photos that we have proffered. If the Court restricts us in some fashion, then we have to modify one or more boards, that will take a little time. I don't anticipate a great deal of dime.
THE COURT: All right. With regards to your boards, do you anticipate anything other than photographs themselves?
MR. KELBERG: Yes. And actually I think Mr. Shapiro misunderstood what I was telling him as far as a wound chart. It is a chart, not drawing of wounds that relate to this case. But in fact, it will be a summary of all of the findings of Dr. Lakshsmanan Sathyavagiswaran who will be one of the witnesses that I will call in the area of forensic pathology. It will summarize all of the findings. It will identify where in the protocol or the addendum or in the appropriate diagrams the wound is either seen or described. It will also point out mistakes that in the opinion of Dr. Lakshsmanan--I won't pronounce his last name any more times than I have to--where they are in his opinion seen and giving an overview of his significant findings. I believe this will be of enormous assistance to the jury in following with the photographs. The only other things that I would--
THE COURT: Well, keep in mind the Court's caution about things that are--go beyond description and go into argument.
MR. KELBERG: I don't believe--
THE COURT: Characterization.
MR. KELBERG: No. These would be fully I believe admissible opinions. Obviously anything that's listed as far as this is an abrasion or this is a contusion or whatever is an opinion, which would be testified to. But because of the number of injuries and, quite frankly, the number of instances where they are not addressed in the original protocol or perhaps not diagrammed in the original documents or not addressed at all even in the addendum, we have in this chart form a way of conveying this information, which quite frankly, your Honor, if you look at the autopsy reports, as you have undoubtedly done, and then you look at the addendums, you can spend a whole lot of time trying to piece together one with the other and trying to figure out how you can make sense of this.
THE COURT: It does require flipping back and forth a lot.
MR. KELBERG: And that's what this chart avoids. The only other thing, we would have the original autopsy materials and the addendums available so that one can see where these things actually are, if they're diagrammed or where they're described. But I would anticipate spending little if any time with respect to anything more than showing the jury where they can be found or where the diagram may show a particular wound. Those would be the major things. We have some charts that deal with overviews of the topics of sharp force injuries just so the jury can have an understanding of what that topic is, how you use a knife and look at its dimensions and correlate it with depths of wounds and widths of wounds and lengths of wounds to assume or trying to form an opinion as to the kind of weapon. We have time of death charts because, as I think both Dean Uelmen and Mr. Shapiro have said, time of death appears to be an issue that everyone wants to talk about. And I think by the time we have completed our presentation, we will have a very knowledgeable jury about the intricacies and complexities of estimating a range for time of death.
THE COURT: What's your estimation for your presentation on direct examination?
MR. KELBERG: Because of the completeness and candor of the direct examination, I would anticipate perhaps three days with Dr. Lakshsmanan.
THE COURT: All right.
MR. KELBERG: Dr. Golden, I would anticipate will have a shorter direct because I believe most of what needs to be covered will have been covered through the earlier witness. But I can't speak as to what the cross-examination would be as to either.
THE COURT: All right. When do you think these exhibits, the ones that you've just described, will be available to exhibit to Mr. Shapiro so we can take up any objections ahead of time.
MR. KELBERG: I understand that. And we want that as well. Quite frankly, your Honor, we're trying very hard to get them completed through the services that are available. I would anticipate next week. I have indicated that we wanted everything done by Wednesday of next week on the assumption that we might have to go on Wednesday of next week. It sounds to me from what the Court is saying, that's probably not realistic, and from what Mr. Shapiro has indicated, is not realistic. But if we can have them by Wednesday, then I think we have an opportunity to meet with counsel, show them what we have and go from there.
THE COURT: I was just wondering whether or not I'd have to spend the weekend doing this.
MR. KELBERG: Doing the photos? I think if the Court is correct in believing that we go to the end of the week with the witnesses that the Court is already aware of and then we start on the Tuesday after memorial day or someday thereafter, that if the Court could give us a ruling by let's say Wednesday or Thursday, Wednesday or Thursday of next week, that will be sufficient time be able to do what we need to do.
THE COURT: All right. I'm going to order the Prosecution then, Mr. Kelberg, to notify Mr. Shapiro as soon as you have those other display boards available to make them available for counsel to see so we can take up any objections before hand.
MR. KELBERG: Absolutely.
THE COURT: All right. Thank you, counsel. Anything else?
MR. KELBERG: There is one other thing that I wanted to place on the record. We've discussed it also. The incidents that were the subject of our previous motion regarding Dr. Golden's mistakes arise from a segment of prime time live. In that same segment, they refer to two other cases of Dr. Golden's in which it is alleged that Dr. Golden made mistakes. In a letter that Mr. Hodgman sent to Mr. Shapiro dated May 3rd, we asked Mr. Shapiro to tell us whether or not he intended to go into those areas. We would raise a different issue than we raised with respect to the first two incidents because we would contend no mistakes were made. Unlike the other incidents where we agree mistakes were made, we contend in these two cases there were no mistakes. If counsel intends to go into that, we would ask for a 402 hearing before the testimony of any forensic pathologist called by the Prosecution to see whether or not that's fair game.
MR. SHAPIRO: Your Honor, I really can't make that decision yet, and the reason is, it appears from what counsel has stated that they are going to impeach their own witness. And, therefore, further impeachment by us would only be cumulative and be redundant. So if that in fact is what the Prosecution is going to do, I would say we won't have any need to--much cross-examination at all of Dr. Golden.
THE COURT: Of course, that doesn't answer the question.
MR. KELBERG: That's why Mr. Shapiro is such a skillful lawyer.
MR. SHAPIRO: I don't know until we hear what they say.
THE COURT: All right. Thank you, counsel. We'll stand in recess as far as this case is concerned until 9:00 o'clock on Monday. Thank you.
(At 4:00 P.M., an adjournment was taken until, Monday, May 22, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California, )
Plaintiff, )
Vs. ) no. BA097211 )
Orenthal James Simpson, )
Defendant. )
Reporter's transcript of proceedings Friday, May 19, 1995
Volume 150 pages 28354 through 28536, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 150 pages 28354 - 28536 day date session page vol.
Friday May 19, 1995 A.M. 28354 150 P.M. 28481 150
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PROCEEDINGS
Motion re introduction of 28481 150 autopsy photographs
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX of witnesses
PEOPLE'S witnesses direct cross redirect recross vol.
Sims, Gary 150 (Resumed) 28363bs
ALPHABETICAL INDEX of witnesses witnesses direct cross redirect recross vol.
Sims, Gary 150 (Resumed) 28363bs
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. Page vol.
1161 - Photograph of 28460 150 a glove with a cut-out at the back wrist
1162 - 2 photographs 28462 150 of the inside surface of a glove with 5 cut-outs
1163 - Photograph of 28462 150 a glove with a cut-out area of "G-10"
1164-A - 2 photographs 28463 150 of a glove with a cut-out areas "G-11" and "G-12"
1164-B - 2 photographs 28463 150 of a glove with a cut-out areas "G-10" and "G-13"