Department No. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Good morning, counsel. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, People represented by Mr. Darden and Mr. Harmon. The jury is not present. Counsel, anything we need to take up before we invite the jurors to continue and conclude the cross-examination of Mr. Sims?
MR. HARMON: Just I wondered if there had been any in-camera review based on the inquiry I made yesterday about the stains on the back gate, your Honor.
THE COURT: All right. That matter was delegated to Mr. Douglas and Mr. Douglas is just arriving. We'll take that up at the appropriate time.
MR. HARMON: Could we have just a moment? There's a scheduling problem that I wanted to alert you to. It doesn't have to be on the record, but I have to tell you about it today, your Honor.
THE COURT: Come on down.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Thank you, counsel. Anything else we need to put on the record before we invite the jurors to join us? And, Mr. Scheck, do you know what you're going to need in the way of exhibits, because we've got sort of a zoo over here right now.
MR. SCHECK: Yes. I think I have it fairly well planned. I'm going to start with that chart.
THE COURT: I'm a little concerned because the smaller easel is sort of leaned up here. Just a matter of logistics here. All right. Deputy Magnera, let's have the jurors, please.
MR. SCHECK: Your Honor, did we give the chart a number?
THE CLERK: No.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we've now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: Did we enjoy our activities over the weekend?
THE JURY: Yes. It was great.
THE COURT: Okay. That was something I wanted to do myself. That's how you got that. All right. 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 again, Mr. Sims.
MR. SIMS: Good morning, your Honor.
THE COURT: Mr. Sims, you're reminded, sir, 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, sir?
MR. SIMS: Good morning. Fine, thank you.
MR. SCHECK: Your Honor, I would like to start by marking a chart that I think has a label over the top "Defense hypothetical" as Defendant's next in order, and I would like--
THE COURT: 1165.
MR. SCHECK: 1165. And ask Mr. Harris to project that.
(Deft's 1165 for id = chart)
MR. SCHECK: And I'll approach the witness.
MR. SCHECK: Now, Mr. Sims, you recall on Thursday afternoon, we reviewed--based on a hypothetical that I gave you concerning an assumption of random distribution of biological material over the swatches, you made a series of estimations or approximations of the amount of human DNA in various items of evidence. Do you recall that?
MR. SIMS: Yes. And I recall too the assumption as to how much of the total swatch I was getting was part of this calculation.
MR. SCHECK: That's correct.
MR. SIMS: Because that's part of your assumption, but that wasn't in my original notes.
MR. SCHECK: I understand.
MR. SIMS: Okay.
MR. SCHECK: There was some--we made some assumptions about amount--numbers of swatches and weights of those swatches that were not in your possession, but were in the possession of Cellmark.
MR. SIMS: Okay.
MR. SCHECK: All right. But based on those figures, you made these estimations, correct, as reflected in Defendant's--
THE COURT: 1165.
MR. SCHECK: --1165?
MR. SIMS: Well, these--these numbers do look similar to what I said, although I don't recall the specific--
MR. SCHECK: Right.
MR. SIMS: --numbers.
MR. SCHECK: Right. Well, you recall that we--I think on Friday, I handed you a copy of this chart, and at that time, you checked it against your numbers?
MR. SIMS: It looks reasonable to me.
MR. SCHECK: Okay. And just to review then, that in terms of on the left-hand column, that reflects nanograms of human DNA?
MR. SIMS: On the--now, this is--this is now on the left-hand side of the--
MR. SCHECK: Yeah.
MR. SIMS: Yes. That was--
MR. SCHECK: Nanograms.
MR. SIMS: Now, on 117, it's important to note that I did not run a specific human test on that, that my quantitation was only based on the yield gel on 117.
MR. SCHECK: But in terms of your yield gel, your yield gel showed little bacterial DNA, it looked to you human?
MR. SIMS: That's correct.
MR. SCHECK: Okay. Now, just so we're clear on this, 47, 48, 49, 50 and 52 are the items that were recovered on June 13th from the Bundy walkway?
MR. SIMS: Yes.
MR. SCHECK: And 117 is the material that was found on the rear gate on July 3rd?
MR. SIMS: Yes.
MR. SCHECK: And now, in this FBI report about environmental effects of DNA, do you recall that they reached a conclusion with respect to exposure to sunlight, eventually causes degradation of DNA and stains to the point that no typing results can be obtained?
MR. SIMS: Which--now, is that--which particular FBI study is that? Is that in the Journal of Forensic Sciences or--
MR. SCHECK: Yes. I'm referring now to--I don't know if it was ever given an item number in evidence, but call your attention to page 1646.
THE COURT: Mrs. Robertson doesn't recollect that study.
MR. SCHECK: Yes. This is an article entitled--
MR. SIMS: Yes. This is the Comey article, November '91, Journal of Forensic Sciences.
THE COURT: How do you spell the name?
MR. SIMS: C-O-M-E-Y.
THE COURT: Thank you.
MR. SCHECK: And does that refresh your recollection as to the conclusion they reached with respect to the exposure to sunlight, what that can do in terms of degradation?
MR. SIMS: I'd like one moment just to review it.
MR. SCHECK: Take your time.
THE COURT: We're talking about sunlight or ultraviolet?
MR. SCHECK: Sunlight.
(Brief pause.)
MR. SIMS: Okay.
MR. SCHECK: And I think you previously testified on direct examination that exposure to soil and dirt can lead to bacterial degradation of DNA in a bloodstain.
MR. SIMS: Yes.
MR. SCHECK: Now, finally, with respect to this chart--let's go back to the sock for a second.
MR. SIMS: Okay.
MR. SCHECK: And you recall the--there was a cut-out of about three-quarters of an inch to a half-inch high in the ankle of one of those socks?
MR. SIMS: Yes.
MR. SCHECK: And as you indicated before, there was even some what appeared to be reddish staining or blood that was still in the--still on the sock in the area where the cut-out had been made?
MR. SIMS: Yes. Around the edges, there was some--still a little bit of staining there.
MR. SCHECK: And when you received the sock from the Los Angeles Police Department, you found swatches inside a tube that had been cut by Greg Matheson?
MR. SIMS: Yes.
MR. SCHECK: And you used how many of those swatches?
MR. SIMS: I used three of the four.
MR. SCHECK: Three of the four. And on just three of those swatches, when you did a slot blot analysis, you came up with 1,350 nanograms of human DNA?
MR. SIMS: Well, now that was not a slot blot. That was a yield gel.
MR. SCHECK: Yield gel?
MR. SIMS: Yield gel analysis.
MR. SCHECK: But there was no evidence in your yield gel analysis of bacterial degradation in that sock?
MR. SIMS: No, I don't recall seeing any.
MR. SCHECK: And so if one were to--so that's just three of the four stains where you got that 1,350 nanogram estimate from the yield gel?
MR. SIMS: Yes.
MR. SCHECK: Now, if we were to plot what 1,350 nanograms looked like in terms of this chart, you would have, wouldn't you agree, one of these red bars that would go like right through the top of the screen?
MR. SIMS: Yes, it would.
MR. SCHECK: And it would be fair to say that the amount of DNA in that cut-out section of the sock was a comparatively concentrated sample I think were your words last week?
MR. SIMS: Yes.
MR. SCHECK: Okay. Now, you did not receive the socks for testing at your laboratory until September 26th--
MR. SIMS: That's--
MR. SCHECK: --1994?
MR. SIMS: I believe that's the correct date.
MR. SCHECK: And--and so on September 21st, 1994, you had no DNA results consistent with the DNA typings of Nicole Brown Simpson from that sock?
MR. SIMS: That's correct.
MR. SCHECK: So to the best of your knowledge, there would be absolutely no factual basis for anyone saying on September 21st, 1994 that DNA tests had been performed on the socks and results had been obtained?
MR. HARMON: Objection. Hearsay, argumentative, no foundation.
THE COURT: Sustained. Sustained.
MR. SCHECK: To your knowledge, has anyone in your laboratory, including yourself, ever communicated DNA test results to members of the press prior to communicating them to the Prosecution or the Court?
MR. HARMON: Objection. It's irrelevant, calls for hearsay, no foundation.
THE COURT: Overruled. You can answer that question yes or no.
MR. SIMS: No.
MR. SCHECK: And obviously, as far as you know, no one from your laboratory, including yourself, ever said on September 21st before you--
THE COURT: Sustained. Sustained.
MR. SCHECK: All right. I think we're finished with that chart. Just a few real quick questions on precautions against contamination in the laboratory. Could you tell the jury what a laminar flow hood is?
MR. SIMS: Yes. A laminar flow hood is one that is designed such that when you're working inside of it, nothing gets into it and nothing gets out of it because it basically creates a curtain of air that is like a barrier to keep things from either getting in or getting out of that hood.
MR. SCHECK: Could you describe the air flow in that hood, how it works?
MR. SIMS: Yes. It's sort of a circular flow process so that--it's sort of hard to explain. I'll try to do this. But you--I think if you all know what a hood is, you're inside--it's an enclosed area inside like a little case that you're working in, and the air flow is such that it is sucked down to form this curtain and then it goes back through the back, then it goes through a filter system and it comes back down around. So you've always got this barrier of air that keeps things from getting in and getting out. And when I say things, I'm talking about dust and aerosols and that sort of thing.
MR. SCHECK: And you literally would stick your hand through these--there's like holes that you stick your hand in?
MR. SIMS: Well, it's an opening. It actually is an opening. So you are putting your hands through that opening.
MR. SCHECK: You're putting your hands in that are gloved?
MR. SIMS: Yes.
MR. SCHECK: And that's where you will do your work for the extractions?
MR. SIMS: That's--now, that is where we always do our PCR set-ups.
MR. SCHECK: Uh-huh.
MR. SIMS: That's where we do the set-ups for the PCR amplification.
MR. SCHECK: And the hood that you use, is the air flow such that you suck air from inside the laboratory into the hood and then out?
MR. SIMS: No. It's continuously recirculating the air as I understand it.
MR. SCHECK: Uh-huh. And is there something called a fume hood?
MR. SIMS: Yes, there is.
MR. SCHECK: And a fume hood is a hood where you suck air from inside of the laboratory into the thing and then out?
MR. SIMS: Yes. And that's used when we're doing, for example, the phenol chloroform extractions because you don't want to breathe this phenol. It's not a good--or chloroform for that matter. Those are chemicals you don't want to breathe, and so you work in a fume hood to remove those fumes away from yourself.
MR. SCHECK: Uh-huh. But there's a difference between a fume hood and a laminar flow hood?
MR. SIMS: Yes.
MR. SCHECK: And a laminar flow hood is the one that's designed--specifically designed to prevent aerosols and particulants from inside the laboratory from getting inside that hood?
MR. SIMS: Or from things in there getting out. Both ways.
MR. SCHECK: Okay.
THE COURT: You want to spell laminar for the court reporter?
MR. SCHECK: Yes.
MR. SCHECK: L-a-m-I-n-a-r, correct?
MR. SIMS: Yes, that's correct.
MR. SCHECK: Thank you. Now, we had a discussion about PCR carry-over contamination on I think it was Friday morning.
MR. SIMS: Yes.
MR. SCHECK: And we talked about those billions of fragments?
MR. SIMS: Yes.
MR. SCHECK: And just to be clear about it, I was asking you about the visibility of those fragments. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: And you said that they were invisible?
MR. SIMS: Yes.
MR. SCHECK: All right. And just so that we're very clear, they're in a liquid; is that correct?
MR. SIMS: Well--yes, they would be in a liquid. And so the only thing you could see would be if you got a droplet or something like that on a glove, you could see them as part of that drop, but you don't really see them, the particles. They're too small.
MR. SCHECK: And the smallest amount of that could contain thousands of amplicons as they're called?
MR. SIMS: Yes.
MR. SCHECK: Now, we talked a little bit about checks--methods that one would pursue in trying to determine whether you had contamination in your laboratory. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: Now, if you had in your laboratory contamination such that you could see on your DQ-Alpha strips--and we'll review those strips in a minute, but they have all these dots on them, right?
MR. SIMS: Yes.
MR. SCHECK: And if you saw that some of the dots were lighting up with pretty significant intensity that you knew shouldn't be lighting up in your quality assurance standards or quality control standards or your positive controls, that would be a strong indication that there was contamination in your laboratory?
MR. SIMS: If--if there were no other reason for that. For example, I've seen reference blood samples where somebody's been transfused, which creates a mixture situation. That's--that would be one example. Also, as I pointed out earlier, sometimes with this DQ-Alpha system, you will see some very weak dots because of what's called cross-hybridization phenomenon. So those things, you have to always take into account. But there are certain things you look for. For example, in your extraction reagent blank, your negative controls, if you see any dots in those, then that would signal that you have some form of contamination. That's--that's the best thing to look at.
MR. SCHECK: Before we go into some of those things you mentioned, I'm just asking you about a pretty simple situation where you see on the negative control, the positive control and your quality control samples dots of not faint, but reasonably strong intensity or lighting up in a series of cases.
MR. SIMS: Yes.
MR. SCHECK: Got that in mind?
MR. SIMS: Yes.
MR. SCHECK: All right. And that would be a--certainly an indication that there may well be contamination in your laboratory?
MR. SIMS: Yes. That would tell you that you may have a contamination problem.
MR. SCHECK: And let us further assume--now, would one procedure one would follow to try to get to the source of that contamination, to look at the lots from which the reagents or chemicals came from?
MR. SIMS: Yes.
MR. SCHECK: What--could you tell the jury again what a lot is?
MR. SIMS: A lot is--excuse me. The way we set up our laboratory is, we work with these lots of these kits that are provided by a commercial provider. And so we divide each shipment of those kits into a lot, and the lot--each kit includes reagents such as the--the--with the cocktail. I guess Dr. Cotton has talked about this, so I won't go into it in detail. But they have the various reagents that are used as part of this kit. We also have lot numbers for the reagents that are used to extract DNA in our laboratory. So that would be a lot of reagents that we would check out also.
MR. SCHECK: Let's just focus for a second on the lots of reagents that come in those kits.
MR. SIMS: Okay.
MR. SCHECK: And those kits are provided by a company that's now known as Roche Biomedical?
MR. SIMS: Yes. Roche molecular systems and then it's marketed by Perkin-Elmer.
MR. SCHECK: Uh-huh. And let us assume in this hypothetical I gave you about searching for the source of contamination that one develops a hypothesis that maybe the source of contamination are those kits, the lots from those kits. Are you with me?
MR. SIMS: Yes.
MR. SCHECK: All right. And you go back to the manufacturer and you determine that there are no reports of any contamination being discovered in those kits.
MR. SIMS: Okay. In other words, the other users around the company are saying, "We didn't see that in that lot number"?
MR. SCHECK: Yes. And there's a person named Dr. Rebecca Reynolds or Rebecca Reynolds? I don't know if she's a doctor.
MR. SIMS: Yes, I know--she is a doctor.
MR. SCHECK: Dr. Rebecca Reynolds. And she would be actually the person you would call to check out whether or not a lot was contaminated from Roche or Perkin-Elmer?
MR. SIMS: She's--she's one of the people that you might talk to, yes. There are other people there too that we would go through.
MR. SCHECK: And if in this situation you learned from Rebecca Reynolds or some other person that there was nothing wrong with these lots--
MR. HARMON: Objection. Irrelevant.
THE COURT: Sustained. Directly with this laboratory's usage.
MR. SCHECK: I'm sorry?
THE COURT: It's not relevant unless it's directed towards this laboratory's usage.
MR. SCHECK: Yes.
MR. SCHECK: All right. In terms of your usage, if you determined in a search for contamination from Roche that there was nothing wrong with the kits or lots, would that then lead you to search further for the source of contamination?
MR. HARMON: Objection. It's irrelevant, improper hypothetical, no foundation.
THE COURT: Overruled.
MR. SIMS: Yes.
THE COURT: You want to spell Roche and Perkin-Elmer for the court reporter?
MR. SCHECK: Roche, R-O-C-H-E, and Perkin-Elmer--now, this may be hard for me--P-E-R-K-I-N dash E-L-M-E-R.
MR. SCHECK: Let's discuss for a few minutes proficiency testing.
MR. SIMS: Okay.
MR. SCHECK: Did you see Dr. Cotton's testimony with respect to the different kinds of proficiency testing?
MR. SIMS: I think I do remember a chart about blind. I think it was one that Mr. Neufeld prepared.
MR. SCHECK: Yes.
MR. SIMS: I remember him writing. I have an image of that, yes.
MR. SCHECK: Okay. Just for benefit--I think this is Mr. Neufeld's writing, and it would be 1153. Okay. Can you see that in the back? I guess not. Let me just take a second. I'll move this over here.
THE COURT: Better.
MR. SCHECK: Better?
THE COURT: Better.
MR. SCHECK: Now, would you agree with--
THE COURT: But you're also standing between it and 165.
MR. SCHECK: Right. And that's actually not going to be visible to them as I see it. If I do that, is that--and can you--
JUROR NO. 7: Yes.
THE COURT: All right. Mr. Scheck, if you would, let me address the jurors directly.
MR. SCHECK: I'm sorry.
THE COURT: Thank you.
MR. SCHECK: Now--this even has Mr. Neufeld's bad spelling as I recall it. Now, would you agree that in terms of the generic types of proficiency tests, that one type is what's known as an open test?
MR. SIMS: Yes.
MR. SCHECK: And that's where the examiners know they're being tested?
MR. SIMS: Yes.
MR. SCHECK: And then there are blind tests where the examiners don't know that it's a test?
MR. SIMS: Yes. That's--that's my general understanding and I think in the Twgdam guidelines, that's what's mentioned as open versus blind.
MR. SCHECK: All right. And then there are external tests where the samples are provided to the laboratory by individuals who are independent of the laboratory and don't necessarily know the strengths and weaknesses of the lab?
MR. SIMS: Yes.
MR. SCHECK: And then there are internal tests which are provided by the laboratory to test itself?
MR. SIMS: Yes.
MR. SCHECK: And then of course--so there would be open externals, open internals, then blind externals and blind internals?
MR. SIMS: Yes.
MR. SCHECK: Okay. So we're clear on that terminology?
MR. SIMS: Yes.
MR. SCHECK: Now, with respect to the proficiency tests--withdrawn. Would you agree that as much as possible, one would want proficiency tests to duplicate or replicate casework, to be like casework?
MR. SIMS: Yes. I think as a concept, I would agree with that.
MR. SCHECK: And that in terms of all those kinds of tests, the form of testing that would be most like casework would be an external blind test?
MR. SIMS: Well, I suppose if one makes a distinction between whether or not one knows one is being tested--is that--is that--
MR. SCHECK: Yes.
MR. SIMS: That--that's probably true, yes.
MR. SCHECK: And would you agree that proficiency tests provides one way to measure the error rate of the DNA laboratory?
MR. SIMS: Yes.
MR. SCHECK: And would you agree that in clinical work, DNA laboratories will often find out they made errors when doctors notify them that an incorrect diagnosis was made--
MR. HARMON: Objection. Calls for hearsay, insufficient foundation.
THE COURT: Sustained.
MR. SCHECK: Well, you indicated on direct examination that you had some familiarity with the use of DNA typing processes and clinical medicine?
MR. SIMS: Yes. A very general familiarity.
MR. SCHECK: Well, in a general way, wouldn't you agree that a DNA typing laboratory that is doing work for doctors in clinical medicine can find out that they made an error in their DNA typing results if the doctor calls them and says, "Your predicted result did not match what we found when we actually did some further tests on the patient?"
MR. HARMON: Objection. Irrelevant, improper foundation.
THE COURT: Sustained.
MR. SCHECK: Well, would you agree that in forensic work, it's harder to determine if a laboratory made an error in casework than in clinical medicine?
MR. HARMON: Objection. Calls for speculation, inadequate foundation.
THE COURT: Sustained.
MR. SCHECK: Well, in--based on your general knowledge of clinical medicine, would you agree--and DNA typing in clinical medicine, would you agree that in forensic work, it's harder to determine whether a laboratory made an error than it is in clinical medicine?
MR. HARMON: Objection. Calls--
THE COURT: Sustained.
MR. HARMON: Thank you.
MR. SCHECK: You don't seem to like this line. Okay.
THE COURT: I didn't Friday either.
MR. SCHECK: Yeah. We'll get to this I suppose.
THE COURT: Not through this witness.
MR. SCHECK: Would you agree that in a proficiency test, even if you don't get a wrong answer, that the test can reveal weaknesses and discrepancies in a laboratory's work that are important to note because they could lead to errors in other situations?
MR. HARMON: Objection. Argumentative, compound.
THE COURT: Overruled.
MR. SIMS: I--I think I'd need a little more like an example of where you're going with that. I'm not sure I understand the question otherwise.
MR. SCHECK: If you take a proficiency test and there are some discrepancies in your typing results, let's say some evidence of contaminants or irregularities on a dot blot for DQ-Alpha, for example, but they don't prevent you on that particular test from getting a wrong answer. Are you with me?
MR. SIMS: Yes.
MR. SCHECK: It's still important to note what those discrepancies or irregularities are because on another test with another set of samples, those could lead to errors?
MR. SIMS: Yes.
MR. SCHECK: And that's one of the things that proficiency tests can help a laboratory identify?
MR. SIMS: Yes. I agree.
MR. SCHECK: Now, the only proficiency tests that have been conducted in your laboratory from external sources are open proficiency tests?
MR. SIMS: Yes.
MR. SCHECK: And you're familiar with the recommendation--the section of the national academy of sciences report that talks about laboratory error rate?
MR. SIMS: I've read that section, yes.
MR. SCHECK: And is that a section that you would rely upon on forming your opinions concerning laboratory error rates in external blind proficiency testing?
MR. SIMS: Well, the problem that I have with regards to the NRC is, they're not clear on what a blind test is in their own definitions.
MR. SCHECK: Well, have you ever looked at the glossary of terms at page 171 of the NRC report?
MR. HARMON: Objection. Hearsay.
THE COURT: Sustained.
MR. HARMON: Under 721.
MR. SCHECK: Let me call your attention to page 71--171 of the NRC report.
MR. HARMON: Objection. Calling to attention is irrelevant. It's hearsay at this point.
THE COURT: It's overruled. He can direct his attention to something and attempt to lay a foundation here.
MR. SCHECK: Would you please read that section to yourself?
THE COURT: Mr. Harmon, do you have that?
MR. HARMON: Excuse me?
THE COURT: Do you have that?
MR. HARMON: I'm aware of it.
THE COURT: All right.
(Witness complies.)
MR. SIMS: Okay.
MR. SCHECK: Now, you just said that one of the problems you thought you had with the NRC report is the way they define the different kinds of proficiency testing?
MR. SIMS: Yes, it is.
MR. HARMON: Objection. Inadequate foundation, it's hearsay.
THE COURT: That question is not. Overruled.
MR. SCHECK: Would you agree that in the glossary of terms, that the NRC defines the different kinds of--
MR. HARMON: Objection. Calls for hearsay.
THE COURT: Sustained.
MR. SCHECK: Would you rely upon the definition in the glossary session at page 171 of the NRC report in terms of its definition of proficiency testing?
MR. HARMON: Objection. It's irrelevant, calls for hearsay.
THE COURT: Sustained. The question is not appropriately phrased, counsel. It's not prospective. It's "Have you."
MR. SCHECK: All right. Have you relied on the section in the glossary, definition section of the glossary for forming your opinions about what the NRC means with respect to proficiency tests and how they're defined?
MR. HARMON: Objection. It's irrelevant, inadequate foundation.
THE COURT: Sustained.
MR. SCHECK: In forming your opinions with respect to proficiency testing and DNA testing, would you rely upon the glossary section definition of the NRC report--
THE COURT: Sustained.
MR. SCHECK: --in forming your opinions? Looking at the glossary section, does that refresh your recollection as to how the NRC defines proficiency tests?
MR. HARMON: Objection. It's argumentative, it's hearsay.
THE COURT: Sustained.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Have you relied. Have you relied on the definition section of the NRC report with respect to proficiency testing?
MR. HARMON: Objection. Calls for hearsay, inadequate foundation. It's vague.
THE COURT: Overruled.
MR. SCHECK: Thank you.
MR. SIMS: Have I relied on the NRC to tell me what those definitions are? Is that the question?
MR. SCHECK: Yes. Would you rely--
MR. SIMS: Because the answer to that is no. I would not necessarily rely on it.
MR. SCHECK: You have your own definition. All right. But you gave us testimony a second ago about what you thought the NRC meant, how it defined proficiency testing.
MR. SIMS: Well, that's correct.
MR. SCHECK: All right. In deciding what the NRC meant about different kinds of proficiency testing, had you previously relied on the definition section in the glossary?
MR. HARMON: Objection. That's irrelevant, compound, unintelligible. It's argumentative.
THE COURT: Overruled.
MR. SIMS: Not in the definition section, but there's other places in this writing where it's very confusing to me.
MR. SCHECK: Well, does the definition section clear it up?
MR. SIMS: This is what I think is correct.
MR. SCHECK: And that is what is also reflected on our charts that Dr. Cotton gave?
MR. SIMS: Yes.
MR. SCHECK: Okay. Now, getting to the section of the report that deals with laboratory error rates.
MR. HARMON: Objection. It's hearsay at this point, your Honor.
MR. SCHECK: I'm only asking him about whether he's--
THE COURT: Overruled. This is foundational I assume.
MR. SCHECK: All right. The section of the report dealing with laboratory error rates starting on page 88 to page 89, do you rely upon the national academy of sciences report with respect to laboratory error rates how laboratory error rates should be measured? Do you rely upon that in forming your opinions concerning error rates and DNA typing?
MR. SIMS: On their--I think I need more definition from you on that. I mean, are they saying that you should take a look at proficiency rates or proficiency error rates? I would agree with that.
MR. SCHECK: All right. Do you rely upon that section which states that error rates ought to be determined through external blind proficiency testing?
THE COURT: Sustained. Sustained. Sustained.
MR. HARMON: Your Honor, can we approach the sidebar?
THE COURT: That's an inappropriate way to phrase that question, counsel. No. Have a seat, Mr. Harmon.
MR. SCHECK: All right. Let me call your--
MR. SCHECK: I'm sorry?
THE COURT: I was asking Mr. Harmon to have a seat. But--but, counsel, we're not getting anywhere with this. Why don't you just ask him about the advantages, disadvantages about the different types of proficiency testing and let's move on.
MR. SCHECK: All right.
THE COURT: The NRC report is not coming in through this witness.
MR. SCHECK: Well, if he agrees with it.
THE COURT: Has to rely upon it in forming his opinions, counsel. You don't have the foundation.
MR. SCHECK: Would you--all right. Let me just look--just call your attention--you're saying some parts of what they discuss about laboratory error rates you would rely upon?
MR. SIMS: No. You asked me would I agree with them I think is what you--
MR. SCHECK: No. No. Unfortunately, I can't ask you that question. I have to ask you the question, have you relied upon those sections of the NRC report dealing with how to measure laboratory error rate in forming your opinions?
MR. SIMS: No.
MR. SCHECK: Okay. Thank you for the no. Now, in terms of--you took a few proficiency tests, external proficiency tests that were provided to you by the College of American Pathology and the Collaborative Testing Service?
MR. SIMS: Actually, the collaborative testing service is correct. The other ones that we did were through the United Kingdom branch of Cellmark.
MR. SCHECK: Okay. Now, in either the--what is the--there's an acronym for the--the IQAS is the Cellmark acronym?
MR. SIMS: I don't use it, but I think there is--International Quality Assurance Scheme or something like that.
MR. SCHECK: So there's the IQAS proficiency tests and the so-called CTS proficiency tests?
MR. SIMS: Yes.
MR. SCHECK: And these are open tests?
MR. SIMS: Yes. They are done as open tests.
MR. SCHECK: Now, in these tests, did you receive degraded samples, samples that were substantially degraded as specimens to analyze?
MR. SIMS: No, I don't--in the ones I looked at, no.
MR. SCHECK: All right. But it is substantially degraded specimens that we're dealing with certainly with respect to the Bundy blood drops in this case?
MR. SIMS: Well, I don't think no. 52 was substantially degraded. I think some of the other Bundy drops I would agree with that. 47, 48, 49 and 50 I think would be correct, but 52 I don't think was substantially degraded.
MR. SCHECK: All right. It was--you don't like the word "Substantially" there?
MR. SIMS: Well, that's--yes. I would draw the line there.
MR. SCHECK: All right. How would you characterize the degradation level of sample 52?
MR. SIMS: Well, again, I--I don't think I can answer that because all I did was a slot blot on it. But I know that Dr. Cotton was able to get an RFLP result out of it. So that tells me it's not substantially degraded.
MR. SCHECK: Well, the RFLP result--withdrawn. If an RFLP--an RFLP result can be obtained on as little as 25 to 30 nanograms of human DNA?
MR. SIMS: Something like that, yes.
MR. SCHECK: All right. And that's at the low end of the system, isn't it?
MR. SIMS: Yes, it is.
MR. SCHECK: And ordinarily, a blood drop, a drop of blood would contain how many nanograms of human DNA?
MR. HARMON: Objection. That's been asked and answered.
THE COURT: Sustained. Sustained.
MR. SCHECK: It's just foundational and definition of degraded.
THE COURT: Well, we've asked that question I think four or five times.
MR. SCHECK: What would be your expect--expectation--withdrawn. You--in August of this year, you performed an initial inspection of these swatches?
THE COURT: August of '94.
MR. SCHECK: August of '94. I'm sorry.
MR. SIMS: Yes.
MR. SCHECK: And you did a yield gel on some of these swatches?
MR. SIMS: Yes.
MR. SCHECK: And before--and when--and you only did a slot blot after you did the yield gel?
MR. SIMS: That's correct.
MR. SCHECK: And after looking at the yield gels, but before doing the slot blots, you offered some testimony with respect to your expectations as to how much DNA you would find in the Bundy blood drops?
MR. SIMS: I don't--I don't recall it being an expectation. I think at that point, we had discussed potentially how much we had found. This is back in August, right?
MR. SCHECK: And based on a yield gel, for example, for items, you were getting readings of as high as 150 nanograms of DNA, of high molecular weight DNA based on the yield gel?
MR. SIMS: That's correct.
MR. SCHECK: But you couldn't tell from a yield gel whether that DNA was bacterial or human?
MR. SIMS: That's correct.
MR. SCHECK: And when you subsequently did the slot blot to find out how much human DNA was in the sample, you found out that it was substantially less than 150 nanograms?
MR. SIMS: Much less than 150 nanograms of human DNA, yes.
MR. SCHECK: And what that did is that when you did that slot blot, you realized that there was a lot more bacterial degradation in these Bundy blood drops that even you had initially anticipated when looking at the--at these swatches and doing your yield gels in August?
MR. SIMS: Yes.
MR. SCHECK: Now, getting back to the question about proficiency testing, I take it you are agreeing that the proficiency tests that you received from collaborative testing service and IQAS did not involve substantially degraded samples?
MR. SIMS: That's correct.
MR. SCHECK: The California Association of Crime Labs proficiency tests, however, you know those did involve substantially degraded samples?
MR. HARMON: Objection. Calls for hearsay, no foundation.
THE COURT: Sustained.
MR. SCHECK: Do you know if the CACLD proficiency tests involved substantially degraded samples?
MR. HARMON: Objection. Calls for hearsay, no foundation.
THE COURT: Overruled.
MR. SIMS: Yes, I do know. They were--some of them were substantially degraded.
MR. SCHECK: And in fact, when they--in preparation of the samples for the CACLD proficiency tests, some of those samples were deliberately subjected to severe environmental conditions in order to degrade them?
MR. SIMS: That's my understanding, yes.
MR. SCHECK: But the approach of CTS and IQAS in the proficiency tests that you take is not to intentionally degrade the samples?
MR. SIMS: I would agree with that.
MR. SCHECK: And wouldn't you agree that in casework, laboratories such as yours are routinely encountering degraded samples in terms of performing your DNA analysis?
MR. HARMON: Objection. Calls for conclusion, inadequate foundation, calls for hearsay.
THE COURT: Sustained. Why don't you rephrase the question.
MR. SCHECK: All right. In your lab work, do you not encounter on a routine basis in your cases substantially degraded specimens for purposes of performing DNA analysis?
MR. SIMS: At times we do, yes.
MR. SCHECK: And wouldn't you agree that it would be--withdrawn. And wouldn't you agree that well-designed proficiency tests that are intended to duplicate what you actually get in casework ought to involve degraded samples?
MR. HARMON: Objection. It's argumentative.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Would you agree--I under--Mr. Sims, I understand that you can only subscribe to those proficiency testing services which are available. Fair enough?
MR. SIMS: Yes. Yes.
MR. SCHECK: All right. And these questions are really directed at the kinds of tests that are available for you to take.
MR. SIMS: Yes.
MR. SCHECK: But in terms of the tests that are available for you to take--withdrawn. In terms of designing a proficiency test that would replicate, duplicate what your lab actually encounters in casework, wouldn't you agree it would be a good idea to have specimens that are degraded?
MR. HARMON: Objection. It's irrelevant, no foundation, calls for speculation.
THE COURT: Overruled.
MR. SIMS: Well, I think it's a somewhat complex issue because on the one hand, when we're doing RFLP proficiencies, it only works with samples that are not substantially degraded. So if we're testing people for their RFLP ability, then it doesn't make sense to me to do work with degraded samples because you won't get an RFLP if it's substantially degraded. On the other hand, I--I see no problem with looking at degraded samples if you are going to look for PCR type results. And this whole--this whole issue of designing proficiency tests that fairly tests all the laboratories is something that, you know, is being worked out. I mean, there are--there are some questions there about what different types of samples one may want to look at so that everybody is fairly tested. That's an issue.
MR. SCHECK: Let's talk about mixtures and proficiency testing.
MR. SIMS: Okay.
MR. SCHECK: In any of the open proficiency tests that you have done, were there mixtures of blood on a bloodstain where one source contributed a considerably smaller amount than the other?
MR. HARMON: Objection. "Considerable" is vague.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. Were there mixtures in any of these open proficiency tests that you took of bloodstains where the contribution of one--you found out later the contribution of one of the contributors was much greater than the contribution of a second or third contributor?
MR. HARMON: Objection. "Much greater" is vague, your Honor.
THE COURT: Have you done proficiency testing that involved mixed samples?
MR. SIMS: Yes.
THE COURT: All right. Have there been significant differences in the contributions that you were able to detect?
MR. SIMS: Yes. For example, on the sexual assault type evidence--
MR. SCHECK: No, no, no. I'm asking about bloodstains.
THE COURT: Bloodstains.
MR. SIMS: I recall in the laboratory, that there was one that was submitted where they tried to catch the lab as to whether or not they could detect two stains that were mixed like that. I think it was one of the CTS ones.
MR. SCHECK: Where one of the contributions was much larger than the other one?
MR. SIMS: I--I think that was the scenario. That was not done by me, but somebody else in our laboratory had one where I think that was the issue, that whether or not they could detect this mixing.
MR. SCHECK: Well, a mixture of saliva and blood or a mixture of blood and blood?
MR. SIMS: I think it was two bloods. I'd have to check because, again, that was not my personal test. But I think we had something like that come through the laboratory.
MR. SCHECK: Which one would that be?
MR. SIMS: I don't know the numbers off hand. I would have to go back to the lab and look into that.
MR. SCHECK: Are you certain of that?
MR. SIMS: I'm--
THE COURT: He just said he would have to go back to the numbers. That's argumentative.
MR. SCHECK: Maybe--well, I'm only asking if he--
MR. SCHECK: What you're telling us is that you think that might be true, but you're not sure?
MR. SIMS: I'm not absolutely sure, but I have a recollection of that, yes.
MR. SCHECK: Now--but you personally, for example, have taken no tests involving the mixtures of blood where one source contributes a much greater amount than another?
MR. SIMS: Where there were two blood samples mixed?
MR. SCHECK: Yeah. A blood--
MR. SIMS: No. No.
MR. SCHECK: And have you ever taken a proficiency test where you were trying to detect genotypes in a mixed bloodstain where there was more than two contributors, where there was three or four contributors?
MR. SIMS: No.
MR. SCHECK: But in this case, you've been asked to analyze bloodstains that at least the Prosecution is claiming has as many as three sources?
MR. SIMS: Yes.
MR. SCHECK: And you have never taken a proficiency test, even an open proficiency test that involved such a situation?
MR. SIMS: That's correct.
MR. SCHECK: Now, wouldn't you agree that in terms of DNA typing, that--particularly PCR base typing, that mixtures present special problems?
MR. SIMS: Well, there's two things. You have to be able to detect the mixture and then you have to be able to interpret the mixture.
MR. SCHECK: Now, I notice on direct examination that you never used any of these dot blot strips to explain how you got your results. Am I correct on that?
MR. SIMS: I don't think any blot dot results were presented.
MR. SCHECK: Right. But that's how you got all these DQ-Alpha results, is using this blot dot strip?
MR. SIMS: That's correct.
MR. SCHECK: And what I would ask is to have this marked Defendant's next in order.
THE COURT: 1166.
(Deft's 1166 for id = dot blot strip)
THE COURT: Have you shown that to Mr. Harmon?
MR. SCHECK: Yeah.
MR. SCHECK: Now, what I'm going to put up on the elmo here is--to start with is just a dot blot strip. And what I would like you to do, Mr. Sims, is explain to the jury, if you go through it step by step, how one reads one of these strips.
MR. SIMS: Okay.
MR. SCHECK: Now, let's just--
MR. SCHECK: Back. Back further. Back further.
MR. SCHECK: Okay. Why don't we just use for a second the one at the top that is labeled DNA 17C. Okay?
MR. SIMS: Okay.
MR. SCHECK: That one's blank, right?
MR. SIMS: Okay.
MR. SCHECK: And starting from the left to the right, could you please tell the jury--there are a series of numbers across this strip, correct?
MR. SIMS: Yes.
MR. SCHECK: All right. And could you tell the jury what each of these numbers represents and how one gets a reading off one of these strips?
MR. SIMS: Okay.
MR. SCHECK: And if--maybe we should even use--do we have one of those telestrator things? Maybe--we're trying to simulate a direct examination, Mr. Sims. Maybe you could come down and stand next to me or stand over here. And you know how to use this point maker now?
MR. SIMS: Yeah.
MR. SCHECK: Sure better than I. I'm sorry. There you go. Okay. Starting with the one that says DNA 17, could you tell us what--starting on the left, what the 1 represents?
MR. SIMS: Okay. The 1 is for the overall type 1 probe. In other words, we'll talk later about the subtypes of the 1. But the first thing is that that's an overall 1 probe that's--now, keep in mind the probe in this case is already on the strip. That's what the manufacturer does. They provide you with a strip that has the probe already on it. You'll recall we talked about RFLP. We put the DNA onto the strip and then we hit it with the probe. Well, here, we put the probe already on the strip--the probe is already on the strip and now we hit it with the DNA. This is why it's called a reverse dot blot.
MR. SCHECK: And wouldn't it be fair to say that--that the way this PCR base method works is, is that you take the--you extract the swatches, right?
MR. SIMS: Right.
MR. SCHECK: And you cut them up, you put them in those test tubes, those little test tubes.
MR. SIMS: Right.
MR. SCHECK: And then you amplify up the DNA?
MR. SIMS: Right.
MR. SCHECK: And so what you're really doing is, you're pouring that so-called amplified product over the strip?
MR. SIMS: Right.
MR. SCHECK: And then when you pour the amplified product over the strip, you see which of these blue dots light up and which don't?
MR. SIMS: Right.
MR. SCHECK: Okay. So what I take it you're saying is that starting on the far left-hand side of 17, the blank one, that there's a dot there that we can't see lit up, correct?
MR. SIMS: On--say again?
MR. SCHECK: On the blank one, the second one down.
MR. SIMS: Yes.
MR. SCHECK: Right?
MR. SIMS: Right.
MR. SCHECK: So point--that's where you have the pointer right now. Now, underneath--right next to that 1, there's a little--there's a little piece of probe, right?
MR. SIMS: Right. There's a dot of probe.
MR. SCHECK: A dot of probe. When you pour the amplified product up, if there's any genotype that is part of the 1 system here, okay, that dot should light up?
MR. SIMS: That's correct.
MR. SCHECK: And there are subtypes that we'll discuss as we go across this strip of the 1. There's a 1.1, a 1.2 and a 1.3?
MR. SIMS: That's correct.
MR. SCHECK: Okay. Could you move to the right now? What's next to that 1?
MR. SIMS: Okay. The next one is for what we call the 2 allele. There would be a probe there.
MR. SCHECK: Please use the second strip down, the one that doesn't have anything lit on it.
MR. SIMS: Okay.
MR. SCHECK: Okay? That's where the 2 would be?
MR. SIMS: That's where the 2 would be.
MR. SCHECK: So if there was anybody that had a genotype for the 2 and you poured the amplified product on the strip, the blue dot should light up?
MR. SIMS: Yes.
MR. SCHECK: Okay. Moving to the right, what do we have?
MR. SIMS: That's the 3 probe right in that area (Indicating).
MR. SCHECK: So if we pour amplified product on the strip and there's anybody that has a 3 allele, right, that should light up?
MR. SIMS: Yes.
MR. SCHECK: All right. Next?
MR. SIMS: This is the 4 probe allele right there (Indicating).
MR. SCHECK: So if we pour amplified product on the strip and somebody has a 4 allele, that blue dot should light up?
MR. SIMS: That's correct.
MR. SCHECK: All right. Now, what's this next dot?
MR. SIMS: Okay. This is an important dot right here. This is called the c or control dot. And the point for the control dot is, that tells you first of all that you had enough DNA on the sample to see both of the alleles in a sample. In other words, there's enough DNA to get a result, a typing result. It also is useful in that it can be used to gauge the relative contributions of samples when you start to look at a mixture situation. And we'll talk about that I think later on if I'm guessing where you're going with this.
MR. SCHECK: Okay. We'll talk about that.
MR. SIMS: But that's an important dot, is that c dot.
MR. SCHECK: Well, let's talk about that just for one second, see if we understand this. So this c dot, they call that the "All control," right?
MR. SIMS: Yes. That's what they used to call it I believe.
MR. SCHECK: And it has less probe on it than the other dots?
MR. SIMS: That's correct.
MR. SCHECK: So the theory is, is that when you pour amplified product over this strip, that if this c dot lights up, right--
MR. SIMS: Yes.
MR. SCHECK: --then that means you're not missing any potential alleles because if this dot lights up, then you should be detecting all the other potential alleles in the mixture?
MR. SIMS: In a--well, in a non-mixed sample.
MR. SCHECK: Non-mixed sample.
MR. SIMS: Non-mixed sample. That's important.
MR. SCHECK: Now, of course, as we're going to get to in a second, when you have a mixture, that c dot has less utility as a control, doesn't it?
MR. SIMS: No. I think, for example, in Dr. Blake's article, he talks about using that as a convention and looking at the intensity of the dots relative to the C. So we--we--I wouldn't say it's--
MR. SCHECK: Well, let me put it to you this way.
THE COURT: Excuse me. Counsel, you need to not interrupt his answer. You need not to talk at the same time.
MR. SCHECK: I'm sorry.
MR. SCHECK: Let me put it--let me formulate the question for you this way. When you have a mixture and you pour the amplified product over the c dot, this c dot can be lit up by the primary contributor of the mixture, correct?
MR. SIMS: That's correct.
MR. SCHECK: And so if there is a secondary or a second contributor to the mixture or a third contributor to the mixture or even a fourth contributor to the mixture that have less DNA from those sources--are you with me?
MR. SIMS: Yes.
MR. SCHECK: The c dot won't tell you about whether you're missing any alleles from the second and third and fourth contributor because the c dot is being lit up by the primary contributor?
MR. SIMS: That's true.
MR. SCHECK: And in that situation, where you have such a mixture, the utility of the c dot control in terms of telling you whether you're seeing all the alleles is not as good as it would be were it just one person?
MR. SIMS: Well, again, I mean, you can only talk about what you can see there. But your point is well taken, but you can't say much more about those very weak allele dots.
MR. SCHECK: Okay. And of course, what we're dealing with in this case, as we'll discuss in a minute, are mixtures which involve at least three contributors according to the analysis the Prosecution has put up here?
MR. SIMS: Well, I--it's--I--
MR. SCHECK: Could be three.
MR. SIMS: Could be three.
MR. SCHECK: Could be more, right?
MR. SIMS: We don't know exactly how many.
MR. SCHECK: Okay. We'll discuss that in a minute. Now--so that's the c dot?
MR. SIMS: That's the c dot. That's the important c dot.
MR. SCHECK: Right. Now, the next dot over to the right, what's that?
MR. SIMS: That's the 1.1 dot. See, now we're getting into the subtyping of the 1 alleles because the 1 allele can be broken down into the 1.1, the 1.2 and the 1.3.
MR. SCHECK: And when you're seeing a 1.1, you should also see that 1 over at the left hand, left-hand side, right?
MR. SIMS: If that 1.1 is definitely due to a 1.1, you should, yes.
MR. SCHECK: All right. And when you--when you make that caveat, if it's a real 1.1, sometimes in this system, there are limitations to this system?
MR. SIMS: Yes. I think I mentioned that on the direct examination.
MR. SCHECK: And one of the problems that an analyst has with this system is, sometimes these dots light up faintly and it is difficult to tell whether the dot represents a real allele in the mixture or it is what is I guess in your business called an artifact?
MR. SIMS: Yes. That's one of the limitations of the system.
MR. SCHECK: And could you tell the jury what an artifact is?
MR. SIMS: An artifact would be, for example, if you are seeing some signal at one of these dots that's very weak, but it's not really part of the actual type.
MR. SCHECK: So would it be a fair way to distinguish it is that sometimes you see a dot light up and you know it's real in the sense that it actually represents the DNA from the original source?
MR. SIMS: Well, that you really are seeing the type.
MR. SCHECK: Really are seeing the type? And then sometimes these dots can light up and it's not real, it's an artifact?
MR. SIMS: If they're weak, that's true. If they're very weak, that's true.
MR. SCHECK: Now let's move over to the next dot. Now this gets a little complicated, doesn't it?
MR. SIMS: Yes. This is--this is where the system gets complicated. And the basic limitation is is that there is not a unique probe for this 1.2 allele. So we don't have a single dot that says this is what you see, light up if the 1.2 is there. So what you have to do is, you have to do a little bit of logic here and you have to do a little bit of logic to decide whether or not the 1.2 is there against the contribution here from the 1.3 or the contribution from the 4. And it's hard to do it without showing you an example. But I think you'll recall seeing a lot of my results where I said possible 1.2, possible 1.2. That's because you can't always say that the 1.2 is present. For example, if the 4 allele is definitely present, you may have trouble saying could there be a 1.2 there also. And that's why you saw a lot of those results in parenthesis and that's one of the limitations of the system, and I have to make the assumption that that result--that dot could be there, that type could be there. I just can't detect it in a mix.
MR. SCHECK: But let's--let me try to break it down as simple as we can for reading this particular dot. What that dot represents is that, if that dot lights up, you could either have the 1.2 allele?
MR. SIMS: Yes.
MR. SCHECK: You could have the 1.3 allele?
MR. SIMS: Yes.
MR. SCHECK: Or you could have the 4 allele?
MR. SIMS: Yes. Or combinations thereof.
MR. SCHECK: Or combinations. But one way you can double-check is, if that dot lights up and the 4 dot lights up, you know that there's a 4?
MR. SIMS: That's correct.
MR. SCHECK: And if this particular dot lights up and the 1.3 right to the directly to the right of it lights up, you know you have a 1.3?
MR. SIMS: Yes.
MR. SCHECK: And then sometimes you might be lucky enough by process of elimination to determine if you have a 1.2?
MR. SIMS: That's correct.
MR. SCHECK: Okay. Moving over to the right--and this is a dot of some significance to your laboratory I take it. That is the 1.3 dot?
MR. SIMS: Yes.
MR. SCHECK: And if you have a 1.3 allele present, that dot should light up?
MR. SIMS: Yes. If the 1.3 is there, you should definitely see that dot light up. Sometimes this is the one that is the most useful indicator of this cross-hybe phenomenon that I talked about because it's very, very close in its DNA sequence to some of the other alleles. And so you're--if you see any of this weakness in the background, that could be an artifact, and that's what you really key on when you look at these types of strips.
MR. SCHECK: So in other words--you anticipate I'm going to ask you some questions about interpreting this 1.3 dot, don't you?
MR. SIMS: Oh, I had no idea you were going to--of course, yes.
MR. SCHECK: There were some problems--
MR. SIMS: This is a critical--this is a critical dot, I would agree with you.
MR. SCHECK: And your laboratory does have some problems with this 1.3 dot lighting up persistently in lots of tests, and it's hard--it's been hard for you to determine why that's happening?
MR. HARMON: Objection. It's argumentative.
THE COURT: Sustained. The jury is to disregard.
MR. SCHECK: All right. Let's--let's move on from the 1.3 dot. What's the one to the right of it?
MR. SIMS: That's called the all but 1.3. And that's used to distinguish if you have a situation where you're trying to distinguish the 1.3, 1.3 homozygote. That's what that dot is for. It's again part of the logic.
MR. SCHECK: Right. Now, remember we had--we discussed--when we were discussing PCR carry-over contamination--
MR. SIMS: Yes.
MR. SCHECK: --we had those charts out with the little pyramids?
MR. SIMS: Yes.
MR. SCHECK: All right. And we were discussing the number of--those billions of fragments that we called amplicons?
MR. SIMS: Yes.
MR. SCHECK: And if you recall, we used an example where the starting material contained DNA that was 1.3, 1.3?
MR. SIMS: Yes.
MR. SCHECK: All right. Now, let's--starting back to that pyramid where you have a sample that has 1.3, 1.3 in it, okay?
MR. SIMS: Okay.
MR. SCHECK: Billions of little amplicons, right?
MR. SIMS: Okay.
MR. SCHECK: What it would do in this particular strip, it would light up that 1.3 dot?
MR. SIMS: Yes. If they all--now, there--you have to give me the exact conditions. They're all getting in there?
MR. SCHECK: It's a 1.3, 1.3.
MR. SIMS: Contaminant?
MR. SCHECK: No, no. We'll get to contaminants in a minute.
MR. SIMS: Okay.
MR. SCHECK: I'm talking about a situation where you have billions of fragments that were just 1.3, 1.3.
MR. SIMS: Okay.
MR. SCHECK: You remember that?
MR. SIMS: Yes.
MR. SCHECK: I'll pull out the chart.
MR. SIMS: No, I remember it. Yes.
MR. SCHECK: I know you remember it, but that's not the point.
MR. HARMON: Your Honor, objection. Could we keep the comments down? Could you instruct Mr. Scheck--
THE COURT: No. If we can also keep those comments down too.
MR. SCHECK: All right. This was the chart we were using to discuss the amplicons, correct?
MR. SIMS: Yes.
MR. SCHECK: All right.
THE COURT: This is Defense exhibit?
MR. SCHECK: And that chart number is 1133.
MR. SCHECK: And on 1133, our hypothetical was, we were starting with biological material that contained, for this DQ-Alpha system, 1.3, 1.3.
MR. SIMS: Okay.
MR. SCHECK: And we discussed how on just one PCR run, you--in one of those little tubes, you would create 4 billion 290 million fragments of 1.3, 1.3; is that correct?
MR. SIMS: Yes. Yes.
MR. SCHECK: Okay.
MR. SIMS: But again, I should point out that we're not talking about in any case, we're starting with just one fragment, right. You're saying theoretically you end up with billions of copies.
MR. SCHECK: Right.
MR. SIMS: That--I'm comfortable with that, yes.
MR. SCHECK: Now, if we had the scenario we were talking about the other day, samples of 1.3, 1.3, how would it look on that chart? The 1 would light up in the far left-hand column, right?
MR. SIMS: Yes.
MR. SCHECK: All right. And the 1.2, 1.3, 4 dot would light up?
MR. SIMS: Yes.
MR. SCHECK: The 1.3 dot would light up?
MR. SIMS: Yes.
MR. SCHECK: But the all but 1.3 dot would not light up?
MR. SIMS: It should not light up if it's a 1.3, 1.3 homozygous type.
MR. SCHECK: Now, in terms of PCR carry-over contamination, if there were a problem of PCR carry-over contamination at a laboratory, such that through repetitive typing, there was some 1.3 amplicons in the laboratory--are you with me?
MR. SIMS: Yes.
MR. SCHECK: --that could account, in terms of typing, for the 1.3 lighting up persistently in various strips, even if faintly?
MR. HARMON: Objection. That's argumentative. It's vague.
THE COURT: Overruled.
MR. SIMS: Well, again, that's why you run all those control strips. Because those are all negative, that tells you that you're not seeing this consistent problem.
MR. SCHECK: And that's why you also run quality positive control strips too?
MR. SIMS: Yes. That's one reason we run that too.
MR. SCHECK: Okay. Now--okay. Thank you very much for this. And maybe you could return to the stand, and we'll move a little further here.
(The witness complies.)
MR. SCHECK: That's a thumbnail explanation of how to read these DQ-Alpha strips?
MR. SIMS: Yes.
MR. SCHECK: Now, we were talking about mixtures and how to interpret them. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: Now, there are different kinds of mixtures that DNA laboratories encounter in their casework?
MR. SIMS: Yes.
MR. SCHECK: And the one that has been done--withdrawn. A very typical kind of case for a DNA laboratory involves a sexual assault case?
MR. SIMS: Yes, it does.
MR. SCHECK: And a mixture in a sexual assault case, if let's say there is one perpetrator and one victim, ordinarily involves DNA from the sperm of the perpetrator?
MR. SIMS: Yes.
MR. SCHECK: And DNA from the epithelial cells of the victim?
MR. SIMS: Yes.
MR. SCHECK: And the epithelial cells, those are like the skin cells?
MR. SIMS: Yes. Those are the--in this case, you'd be talking about the cells that line the vagina.
MR. SCHECK: Right. So ordinarily happens in a sexual assault case is that a swabbing is taken from the victim of the rape, and on the swab, there is evidence of sperm and also cells, epithelial cells from the vaginal wall of the victim?
MR. SIMS: Yes. That would be typical.
MR. SCHECK: And that's the typical kind of mixture that forensic DNA laboratories will encounter in such sexual assault cases?
MR. SIMS: Yes.
MR. SCHECK: And when you're dealing with that kind of a mixture, you can do something that's known as a differential extraction, correct?
MR. SIMS: Yes.
MR. SCHECK: And that's--I mean literally, what you can do is, you can take the mixture and you can look at it under a microscope?
MR. SIMS: Yes.
MR. SCHECK: And you can literally see the sperm cells there?
MR. SIMS: Yes, you can.
MR. SCHECK: And then what you do in the differential extraction is, you literally take some kind of a detergent and you pour it over the sample, correct?
MR. SIMS: Well, you don't just pour it over the sample. It's all done in a test tube.
MR. SCHECK: It's done in a test tube, right?
MR. SIMS: Yes.
MR. SCHECK: The fancy name for that is a Lysis?
MR. SIMS: Yes. You do a Lysis, uh-huh.
MR. SCHECK: All right. But literally what that means is, you first put in a detergent that is not as strong as a second detergent that you're going to put in, correct?
MR. SIMS: Well, it's--it's a little more involved than that. It--what it really comes down to is--
THE COURT: Hold on. Hold on. Hold on. What's the relevance of this?
MR. SCHECK: I'm going to try this up in just a second.
THE COURT: Quickly.
MR. SCHECK: Quickly.
MR. SCHECK: In a differential extraction in a sexual assault case, what you can do is first extract the DNA from the epithelial cells, correct?
MR. SIMS: Yes.
MR. SCHECK: And you do that by literally pouring in this chemical, and that will burst open the cells from--the epithelial cells and you can drain out the DNA from the victim?
MR. SIMS: Well, yes. Basically what you're doing is, in this differential extraction process is, you're first getting out the DNA from the female contribution from her cells while the sperm heads--until you add another reagent, the sperm heads, because their DNA is packaged differently, they are resistant to that differ--that first Lysis that you mentioned. So they stay, the DNA stays with the sperm.
MR. SCHECK: So then you can pour in a stronger chemical and you do a Lysis or you burst open the sperm cells, correct?
MR. SIMS: Yes.
MR. SCHECK: And so in that fashion, you can with some assurance--doesn't always work perfectly--but with some assurance, you can separate the sperm DNA from the epithelial cell DNA from the victim?
MR. SIMS: Yes. Again, it doesn't always work perfectly, but you can get an idea of what the mix is that way.
MR. SCHECK: And in that kind of a mixture situation, you--you can then sort of have a backup because if you take a blood sample from the victim and you compare it to the reading you get from the epithelial cells, you have sort of a back-up check to know that your process is working correctly?
MR. SIMS: Yes. That serves as a check.
MR. SCHECK: And that is of considerable assistance in interpreting a mixture in a sexual assault case?
MR. SIMS: Yes. It's helpful.
MR. SCHECK: And it's in some ways analogous to doing DNA testing in a paternity case where you have back-up systems where you know what the genetic--the genotypes of the father is and you know--or the punitive fathers and you know what the genotype of the mother is?
MR. SIMS: Well, that's--I--
MR. SCHECK: Let me withdraw that question. Let's just get to the bottom line here. Would you agree that mixtures involving bloodstains from two or three or four contributors, you can not perform a differential extraction like you can in a sexual assault case?
MR. SIMS: That's correct.
MR. SCHECK: You can not put that bloodstain under a microscope the way you can in a sexual assault case and literally see the different kinds of cells that are contributing to that mixture?
MR. SIMS: That's correct.
MR. SCHECK: If you have a mixture of a bloodstain and saliva together, you can not look under a microscope to look at that bloodstain and see what cells come from saliva and what cells come from blood?
MR. SIMS: Well, now that's incorrect, because when you're talking about blood against blood, that's true. But saliva, as you mentioned earlier when we were talking about sneezing, has these epithelial cells, and one could look under the microscope and make an extract of a bloodstain just like one would make an extract of a semen stain and look at the microscopic charac--you know, the features that are there, and you might see that there are epithelial cells that could be contributed to saliva for example.
MR. SCHECK: Well, have you ever done that?
MR. SIMS: I think I did that in one case. I don't recall doing that in my DNA work, but I can recall doing some kind of micro exam on--for example, we--it's not unusual to look at a bloodstain where there may be a blood and semen mix. That's not an unusual--
MR. SCHECK: So it's--I'm sorry. Are you finished?
THE COURT: Wait. Don't interrupt, please.
MR. SCHECK: I didn't mean to interrupt him.
MR. SIMS: That would not be an unusual occurrence, to have a blood semen mixture, and so one would do a microscopic exam for that purpose.
MR. SCHECK: There's no blood, semen mixture in this case, is there?
MR. SIMS: I didn't examine any of this evidence for semen.
MR. SCHECK: All right. And in a blood, semen mixture, you're going to see sperm cells, right?
MR. SIMS: Well, depending on whether or not the person has sperm. I mean, it may be a vasectomized individual for example.
MR. SCHECK: When you have--
THE COURT: Counsel, it's really--let's just go back to the blood mixtures, please. We're not dealing with any other mixture here.
MR. SCHECK: That's my point.
MR. SCHECK: Did you examine under a microscope the bloodstain mixture to determine whether there was--you could see anything that you would attribute to the epithelial cells of saliva versus cells from bloodstains?
MR. SIMS: No, I did not do that.
MR. SCHECK: All right. And you're actually saying that's something that you think could be done, but wasn't done?
MR. SIMS: What I'm saying is that someone, if they wanted to, could run that test, yes.
MR. SCHECK: Now, bottom line, would you agree that as opposed to a sexual assault case where there's a mixture of sperm from one contributor, non-vasectomized individual, and a vaginal swab from one victim, all right, as opposed to that situation, interpreting DNA results from bloodstain mixtures where there are more than two contributors, all right, that that second situation is a much more challenging application of this technology?
MR. SIMS: Well, it's more challenging in terms of saying what could go with whom for example. That's true, although sometimes even with those types of mixtures on RFLP, you may be able to sort something like that out.
MR. SCHECK: But bottom line, the two or more contributor bloodstain mixture, to use simple terms, is harder in terms of trying to figure out who are the contributors?
MR. SIMS: I think in general, that's true, yes.
MR. SCHECK: Okay.
MR. SCHECK: 10:30 is the break?
THE COURT: 10:30.
MR. SCHECK: If I may, your Honor, I would like to move to the Bronco board.
THE COURT: Mr. Harris, you want to give Mr. Scheck a hand here?
(Brief pause.)
MR. SCHECK: This is Prosecution's 260.
THE COURT: Thank you.
(Brief pause.)
MR. SCHECK: Now, you received swatches from the Bronco numbered 23, 24, 25, 29, 30, 31 and 34, correct?
MR. SIMS: I believe those numbers are all correct. Some of those--now, 23, I don't think we analyzed for example.
MR. SCHECK: Oh, I'm sorry. Okay. 24, 25, 29, 30, 31 and 34.
MR. SIMS: Okay. The numbers you mentioned were 24, 29--
MR. SCHECK: Yeah. I'm really starting from the top down to here to 34, correct?
MR. SIMS: Yes.
MR. SCHECK: All right. And all those samples were collected on June 14th?
MR. HARMON: Objection. Assumes facts not in evidence.
THE COURT: Sustained.
MR. SCHECK: Do you know if all those samples, based on the writings that you received, were collected on June 14th?
MR. SIMS: I don't know that.
MR. SCHECK: All right. I'm going to ask you to assume that all those samples were collected on June 14.
MR. SIMS: Okay.
MR. SCHECK: And you received another set of samples, 303, 304, 305, which were swatches from the console, correct?
MR. SIMS: Yes.
MR. SCHECK: And those I'd like you to assume--well, do you have any notations about when those were collected?
MR. SIMS: It was my understanding that they were collected later. I don't know the exact date.
MR. SCHECK: I'd ask to you assume that those were collected in September.
MR. SIMS: Okay.
MR. SCHECK: About two and a half months after the first set of samples that we discussed were collected.
MR. HARMON: Objection. That misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: Well, let me--maybe my month estimate is off. I would ask you to assume that the first set of samples that we discussed up to 34 were collected on June 14th, 1994, and then the second set of samples, 303, 304, 305 from the center of the console were collected on September 1st, 1994.
MR. HARMON: Objection. Misstates--misleading, your Honor. Misstates the testimony.
THE COURT: Later. At a later date.
MR. SCHECK: Well, I think that August 26th, they were first examined. September 21st--September 1st, they were actually swatched by Mr. Matheson.
MR. HARMON: That--
MR. SCHECK: Either way, August 26th, September 1st.
THE COURT: Later.
MR. SCHECK: Later.
MR. SCHECK: Now, looking at these samples, I'd like you--do you know--I'd like you to assume that no. 30 that's labeled here "Center console" was collected on June 14th and no. 303 was collected at a later date from the same area as 30.
MR. HARMON: Objection. Vague as to "Same area."
THE COURT: Overruled.
MR. SCHECK: Okay?
THE COURT: The jury's heard the testimony as to how this was recovered.
MR. SCHECK: Are you with me?
MR. SIMS: Okay. So you're talking about the same general area?
MR. SCHECK: Same area.
MR. SIMS: Well, now, "Same" to me means the identical spot.
MR. SCHECK: I--we could only make our assumptions based on testimony from others, okay?
MR. HARMON: Objection. Not a question.
MR. SCHECK: I'd like you to assume--
THE COURT: Sustained.
MR. SCHECK: --same area of the console.
MR. SIMS: Again, when you say "Same," how same are they I guess is what I'm--
MR. SCHECK: Your Honor, maybe I could break and I'll get some pictures up.
MR. SCHECK: From the same stain.
MR. HARMON: Objection. That misstates the testimony.
THE COURT: All right. Let's take our break now, let you look at the photographs. All right. Ladies and gentlemen, please remember all of my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We'll stand in recess for 15 minutes. Mr. Sims, you may step down. Mr. Scheck, why don't you point out that board. All right.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record. All parties are again present. Deputy Magnera, let's have the jurors, please.
(Brief pause.)
THE COURT: Mr. Sims, why don't we save some time, and would you retake your seat on the witness stand.
(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. Let the record reflect that we have now been rejoined by all the members of our jury panel. Gary Sims is again on the witness stand undergoing cross-examination. Mr. Scheck, you may conclude your cross-examination.
MR. SCHECK: Thank you.
MR. SCHECK: When we last left we were discussing areas, as you recall. I would like to first put up on the screen what has already been marked as Defendant's 1087, all right? Now, Mr. Sims, I direct your attention to the smear that--that you see where "30" is in this photograph?
MR. SIMS: Yes, I see the post-it. It looks like there is 30.
MR. SCHECK: Right. So starting to--as I'm looking at it and the jury is looking at it, all right, the upper left-hand--the--from the left going downward to the right, you see that streak where the arrow is pointing from there down to where the "30" is. All right?
MR. SIMS: Yes.
MR. SCHECK: All right. Let's call that the area of 30 and 303 as being in the same area. Okay?
MR. SIMS: Just, in other words, we are assuming it is right in that same area.
MR. SCHECK: In that same area, okay, and let me direct your attention to 31.
MR. SIMS: Okay.
MR. SCHECK: Maybe we could have the arrow go there as well. And--and that area would be--starting at the top it is a little shadowed there, moving vertically down.
MR. SCHECK: Okay?
MR. SIMS: Okay.
MR. SCHECK: And let's assume that that 31 area is the same as 304. And now I would ask you to look at another photograph that we would ask be marked Defendant's next in order as 1167.
(Deft's 1167 for id = photograph)
THE COURT: All right. 1167 appears to be a photograph of the console on butcher paper.
MR. SCHECK: Yes.
MR. SCHECK: And I would like you to assume that last photograph I showed you, 1087, was a photograph taken on June 14th.
MR. SIMS: The one you just showed me before?
MR. SCHECK: Yes, previously?
MR. SIMS: Okay.
MR. SCHECK: Now, this is a photograph taken on September 1st.
MR. SIMS: Okay.
MR. SCHECK: And I would like to--why don't you assume that 306 is just a--is a hair and is not a stain, okay?
MR. SIMS: Okay.
MR. SCHECK: And looking at the area again, 303, you see the same area that we pointed out on the June 14th photograph starting from the upper left-hand moving to the right, okay?
MR. HARMON: Objection. That is vague and misstates the testimony.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right.
MR. SCHECK: You see where the "303" label is?
MR. SIMS: Yes.
MR. SCHECK: All right. I would like you to look at the area to the left of 303 and assume that is the same area as 30 on the June 14th photograph.
MR. HARMON: Objection, that is vague and it may be inconsistent with the testimony in this case as it is vague, your Honor.
MR. SCHECK: I don't think so.
THE COURT: Sustained.
MR. SCHECK: All right. You see an area designated "303"?
MR. SIMS: Yes.
MR. SCHECK: All right. You see an area designated "304"?
MR. SIMS: Yes.
MR. SCHECK: All right. Now--you see an area below designated--the bottom of that designated "305"?
MR. SIMS: Yes.
MR. SCHECK: All right. Now--now, with respect--looking at the result board, 2--
THE COURT: People's 260.
MR. SCHECK: The stain collected as no. 30 which we have asked you to assume was done on June 14th, which I have already asked you to assume is the same area as the--let's just start this. 30 collected on June 14th, umm, you had a DQ-Alpha typing of 1.1, 1.2?
MR. SIMS: Yes.
MR. SCHECK: And D1S80 typing of 24, 25?
MR. SIMS: Yes.
MR. SCHECK: Which you said excluded Ronald Goldman?
MR. SIMS: Yes.
MR. SCHECK: And excluded Nicole Brown Simpson?
MR. SIMS: Yes.
MR. SCHECK: And it was only consistent with Mr. Simpson?
MR. SIMS: Well, or someone with his type.
MR. SCHECK: With his genotype?
MR. SIMS: Yes.
THE COURT: Excuse me, excuse me. Counsel--
MR. SCHECK: Yes.
THE COURT: --you are talking over his answer again. The court reporters are almost in rebellion.
MR. SCHECK: I'm sorry. I'm rushing.
MR. SCHECK: The--looking at 303, however, collected on September 1st, do you see that?
MR. SIMS: Yes.
MR. SCHECK: There you found on DQ-Alpha 1.1, possibly a 1.2, a 1.3 and a 4?
MR. SIMS: That's correct.
MR. SCHECK: And a D1S80 of 24, 25 and 18?
MR. SIMS: Yes.
MR. SCHECK: Then on June 14th, as far as 31 is concerned, which would be collected--31, you recall that stain?
MR. SIMS: Yes, yes.
MR. SCHECK: All right. On June 14th you have a 1.1, 1.2 and what you are calling a weaker 1.3, 4, correct?
MR. SIMS: Yes.
MR. SCHECK: And a D1S80 of 24, 25?
MR. SIMS: Yes.
MR. SCHECK: All right. But as far as on 304, which I'm asking you to assume was collected from the same area on September 1st--
MR. HARMON: Objection, "Same area" as vague. Misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: All right. 304, the area designated 304--
MR. SIMS: Okay.
MR. SCHECK: --here you have an additional DQ-Alpha reading of--a D1S80 reading of 18?
MR. SIMS: Now, this is 304 compared to--
MR. SCHECK: 31.
MR. SIMS: 31, yes.
MR. SCHECK: And why don't we assume that 304 is from the same general area as 31.
MR. SIMS: Now, again I guess we get into now the same general area. I think I understand that.
MR. SCHECK: The area that you--that we pointed to--
MR. SIMS: But again in very broad terms--
MR. SCHECK: Yes.
MR. SIMS: --it is not necessarily the same area.
MR. SCHECK: And on the 304 stain collected on September 1st, now the list of people not excluded extends, in addition to Nicole Brown?
MR. SIMS: Yes.
MR. SCHECK: And then on stain 305, you had the same genotypes?
MR. SIMS: Yes, that's correct, on 304 and 305.
MR. SCHECK: All right. Now--
MR. SIMS: Although I would like to add, too, there was a little more definition I think in discriminating the mixture on the DQ-Alpha. You will notice it says weaker 1.3, 4, and on 305 as opposed to 304. The same alleles are present, but there is a little distinction there as far as the patterns.
MR. SCHECK: In your examination of those photographs of the smears on--stains on June 14th and the photographs you saw of September 1st, could you tell whether there was more blood on the console on September 1st than there was on June 14th, just from looking at the photograph?
MR. HARMON: Objection, calls for speculation and inadequate foundation.
THE COURT: Sustained.
MR. SCHECK: Well, in your DNA testing did you find more DNA in 303 than in 30?
MR. SIMS: I would have to check my quantitations on that. It is 304 versus 3--
MR. SCHECK: 303 versus 30.
MR. SIMS: 303 versus 30. Give me one minute, please.
(Brief pause.)
MR. SIMS: Yes, I have reviewed the notes and I did find more in 303 than 30.
MR. SCHECK: 30 you got by your slot-blot 2.6 nanograms?
MR. SIMS: Yes, something like that. Again that may be after quantitation, but it is in that ballpark.
MR. SCHECK: And 303, 40.5 nanograms?
MR. SIMS: Again it is in that ballpark.
MR. SCHECK: With respect to 31, something on the order of 2.1 nanograms?
MR. SIMS: Again I would like to check my notes.
MR. SCHECK: On your slot-blot?
MR. SIMS: I'm sorry, you said how much?
MR. SCHECK: 2.1 on your slot-blot?
MR. SIMS: That's correct, after quantitation.
MR. SCHECK: And 3--as far as 304 is concerned, 29 nanograms?
MR. SIMS: Let me check.
(Brief pause.)
MR. SIMS: That is about right, yes.
MR. SCHECK: Now, in your opinion, as a forensic scientist, it is important to preserve the integrity of biological evidence whether it is found in an automobile or on a street?
MR. SIMS: Yes.
MR. SCHECK: And it is a good practice--withdrawn. Is it a good practice to permit individuals into an automobile for close to--for over two months before swatching the inside of an area for biological material?
MR. HARMON: Your Honor, that is argumentative.
THE COURT: Sustained.
MR. SCHECK: Well, do you think that it would be a good practice, in your opinion of forensic scientists, to permit a car to be burglarized before you go in and swatch biological material from the area?
MR. HARMON: Objection, your Honor.
THE COURT: Sustained, sustained. The jury is to disregard that characterization.
MR. SCHECK: Well, do you agree that chain of custody principles apply to cars and their interiors, just like any other piece of evidence?
MR. SIMS: Yes.
MR. SCHECK: Now, looking just at the materials that I have asked you to assume were collected on June 14th, that would include 30 and 31 from the console, correct?
MR. SIMS: Okay.
MR. SCHECK: And 29 from the steering wheel, correct?
MR. SIMS: Okay.
MR. SCHECK: Now, with respect to 31, there was a problem, was there not, with the DQ-Alpha analysis of that stain?
MR. SIMS: With--now, this is with regards to 31?
MR. SCHECK: 31.
MR. SIMS: I don't--I don't think there was a problem. I think that was what I would classify as a tough call. We had to take a hard look at it, but I don't think there was a problem with the analysis.
MR. SCHECK: Before we examined what you have said was a tough call, would you not agree that with respect to the samples that were collected on June 14th, that there is no DQ-Alpha typing results of a 1.3 and a 4, putting aside 31, from any of the samples collected on June 14th, be it on the console or any other place in the Bronco?
MR. SIMS: Well, as represented by what is here?
MR. SCHECK: Yes.
MR. SIMS: And there is--say it again. There is no--
MR. SCHECK: There is no DQ-Alpha typing results of a 1.3 allele and a 4 allele from samples collected on June 14th, be it on the console or any other place in the Bronco, and I'm excluding here 31?
MR. SIMS: Well, to my knowledge on those samples that's correct.
MR. SCHECK: Okay. Now, let's examine 31, which you have characterized as a tough call.
MR. SIMS: Yes.
THE COURT: Mr. Scheck, you need to flip that around.
MR. SCHECK: I'm sorry.
THE COURT: Unless you are going to use it immediately.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: I would ask that this be marked Defendant's next in order.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: I show what you has been marked as Defendant's 1166.
MR. SCHECK: Do you recognize that as a photograph of DQ-Alpha strips for analyses you made of stains from the Bronco?
MR. SIMS: This, I believe, is a photograph that Dr. Blake took of the--
MR. SCHECK: Do you have one of your own there?
MR. SIMS: Yes, I do.
MR. SCHECK: May I see that?
MR. SIMS: (Witness complies.)
MR. SCHECK: Do you see any differences between those photographs? Do you have a preference as to which one we use?
MR. SIMS: I--I would have to look at it for a minute. I recall Dr. Blake was present for this reading. I don't know if he took the photo at that exact time, but I think he did.
MR. SCHECK: Well, the photograph that I showed you is a little larger, isn't it?
MR. SIMS: Yes, it is an enlargement.
MR. SCHECK: Would you, for purposes of analysis, and for being able to show this, do you have any problems, from a scientific point of view, using the photograph I have showed you, and please examine the two of them?
MR. SIMS: Yes. Just I would like a second to examine it.
MR. SCHECK: Please do.
(Brief pause.)
MR. SIMS: Okay.
MR. SCHECK: Okay?
MR. SIMS: That is okay.
MR. SCHECK: Now, maybe what we could do is you could have your photograph in front of us and we will put 1166 on the elmo. Okay. Now--
(Discussion held off the record between Defense counsel.)
THE COURT: I think we need to back out just a little.
MR. SCHECK: I think for--I think for our purposes actually this is the right shot.
MR. SCHECK: Now, let me call your attention to what is marked on the right-hand section of the strip, that is called dna-18.
MR. SIMS: Okay.
MR. SCHECK: Now, that is--that corresponds to LAPD item no. 31?
MR. SIMS: Yes.
MR. SCHECK: All right. That is the strip where your--the one that up are characterizing as the tough call, correct?
MR. SIMS: Yes.
MR. SCHECK: And in terms of reading that strip, you see at the 1.3 dot a light dot--would that be--how would you describe that? Faint?
MR. SIMS: Well, I would describe it as a dot of about equal intensity to the c dot. When we talked about how important the c dot is and that intensity was scored on that day, that reading as c, and what we do when we do one of these strips is we score the dots in relationship to the c dot, so you first look at the intensity on the c dot and you call that C. It sounds very simple, but anyway, you call that c and then you Judge the relative intensities of the other dot, c plus or c minus, and we also have a category where we call them very faint or trace, so that was scored as a C.
MR. SCHECK: Well, when you scored it, you scored it as about equal to the c dot, correct?
MR. SIMS: Yes. It was scored as a C. What we are saying is about equal to the c dot.
MR. SCHECK: What you are actually saying is that you feel confident that is right to the 1.3 in what is labeled dna-18, correct?
MR. SIMS: Yes.
MR. SCHECK: Is less--is--is--is as intense as the c dot?
MR. SIMS: Yes. As far as our scoring was concerned, we considered that to be about the same intensity as the c dot.
MR. SCHECK: Could a reasonable scientist look at that and say maybe it is a little less intense than the C dot?
MR. HARMON: Objection, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Well, would you agree that the scoring of a dot that faint is subjective?
MR. SIMS: I don't--I don't think it is really subjective in the sense that we are making an objective judgment about that intensity. We are also having a second person read it, so I don't--I don't think it is--it is subjective. I wouldn't use that definition.
MR. SCHECK: Well, the--
MR. SIMS: We felt it was present.
MR. SCHECK: Now, this would be one of those situations where the c dot could be lit up by the primary contributor?
MR. SIMS: That's correct.
MR. SCHECK: And the c dot is not necessarily indicating anything about whether you are missing dots or alleles from other contributors?
MR. SIMS: I can only call what I see.
MR. SCHECK: Right. Now, I call your attention to--if we could move the--down a little bit--to the lane that is QC 816.
MR. SIMS: Okay.
MR. SCHECK: Now, that is the quality control sample that you run?
MR. SIMS: Yes.
MR. SCHECK: And I realize that it is hard to see on the elmo, but looking at the actual photograph of the dot-blot that you have--
MR. SIMS: Yes.
MR. SCHECK: --and looking at your own scoring of this, at the 1.3 dot you see a hint or a trace--
MR. SIMS: Yes.
MR. SCHECK: --of an allele?
MR. SIMS: The--the--yes, I think on the--on that particular scoring, the first reader called it a hint. I called it an outline, which means it is even--in my mind even weaker than just a hint, but it is definitely a very, very, very faint reading.
MR. SCHECK: But that is on--
MR. SIMS: On the elmo, I don't--I don't even think you can really see that.
MR. SCHECK: It is hard to--your Honor, we are going to review this and then we are going to show the actual photograph to the jury. It can't be seen the other way.
THE COURT: But you need to stop talking at the same time.
MR. SCHECK: Okay.
MR. SCHECK: Now, let me move you down to the positive control.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Let me move back a second, and could you, Mr. Harris--actually, first moving back to--if you go up to dna-18--
MR. SIMS: Okay.
MR. SCHECK: Could you put an arrow by the 1.3 dot there. Up, further up. Right there, (Indicating), underneath that.
MR. SCHECK: That is the 1.3 that you are calling in LAPD item 31, correct?
MR. SIMS: Yes.
MR. SCHECK: Okay. Now, let's move down--take the arrow down to the QC 816 and put it underneath the 1.3 dot. That is the 1.3 dot that you say--one reader scored as a hint and you scored as an outline on your quality assurance sample 816, correct?
MR. SIMS: Yes.
MR. SCHECK: All right. Now, let's move down a little further on--we got to print that. Okay.
THE COURT: May I see your photo, Mr. Sims?
(Brief pause.)
MR. SCHECK: Now, moving down to the next--you see where it says "Positive control"?
MR. SIMS: Yes.
MR. SCHECK: All right. Now, the positive control is the sample that you run in every strip, correct, every run?
MR. SIMS: Yes.
MR. SCHECK: And that is supposed to be just a 1.1, 4?
MR. SIMS: That's correct.
MR. SCHECK: And the positive control in this case was scored as having a hint or a trace of the 1.3 dot?
MR. SIMS: Well, again let me look at the actual notes. (Brief pause.)
MR. SIMS: Yes, that was scored as a hint.
MR. SCHECK: All right. Could we print that as well.
MR. SCHECK: Okay. Now, in your protocol you have a section that deals with what's known as the allelic control?
MR. SIMS: Yes.
MR. SCHECK: And the allelic control in this case would be what's known as the positive control on this run?
MR. SIMS: Well, in this--in this particular case. In other words, where we know the type, yes, that is the control for that.
MR. SCHECK: Would you even say that the quality control sample, 816, would also be considered an allelic control for this run?
MR. SIMS: Well, no. I would consider that a blind because we don't know--the analyst does not know what the correct type of that sample is, so in other words, we have to make a determination and then we submit that for review to see whether or not we made the right call.
MR. SCHECK: So--so in other words, in your protocol, when the term "Allelic control" is used, it is only referring to the positive control, not to QC 816?
MR. SIMS: Well, I think you are talking the protocol now or the quality assurance--
MR. SCHECK: The protocol?
MR. SIMS: I don't think we use the term "Allelic control" on the protocol. Can you show me specifically?
MR. SCHECK: Yes. Do you have your protocol there?
MR. SIMS: If you have a copy, I would appreciate it.
MR. SCHECK: I sure do. That would make it faster. And this, Mr. Harmon, is at page 2119 of the materials. It is page 92 of your protocol and it is entitled "Controls for PCR analysis."
MR. SIMS: Okay. This is where we had a misunderstanding because this is the quality assurance manual. This is not the DQ-Alpha protocol.
MR. SCHECK: Okay.
MR. SIMS: That is the distinction.
MR. SCHECK: I'm sorry, in your quality assurance manual you have a section that deals with allelic controls?
MR. SIMS: Yes.
MR. SCHECK: And the allelic controls would be referring to certainly the positive control here?
MR. SIMS: Yes.
MR. SCHECK: And would it also be--would you also consider QC 816 an allelic control?
MR. SIMS: I--I wouldn't use that definition for it, but it is one of the controls we run. Again, it is blind, so you can't--the analyst doesn't know the correct type, so the analyst can't use that information to say, yes, this test is working properly and that is what a control is. That comes later with a review.
MR. SCHECK: All right. So just dealing with the positive control then, in your protocol--you rely on this allelic control section of the protocol, do you not?
MR. SIMS: Yes, I do.
MR. SCHECK: Okay. And in the allelic control section of your protocol does it not state: "This sample" and here we will be talking about the positive control that is depicted on the elmo--"Is a positive control that ensures that the amplification and typing process are working properly. To control for differential amplification the allelic control should include an allele that is sensitive to amplification conditions in this system. For DQ-Alpha a type 1.1, 4 control is to be amplified with each amplification run and typed with each set type," correct?
MR. SIMS: That's correct.
MR. SCHECK: All that is saying is that that allelic control is what is known as the positive control here, correct?
MR. SIMS: Yes.
MR. SCHECK: And then at the end of this section of your protocol it goes on to state: "If the allelic control fails to give the correct result, the analysis must be repeated."
MR. SIMS: That's correct.
MR. SCHECK: And in this instance the allelic control had showed evidence of a 1.3 dot, did it not?
MR. SIMS: No. I would say it showed that there was a cross-hybridization, very faint, at that particular location or at least a hint of it.
MR. SCHECK: Did it not show the 1.3 dot lighting up at some intensity?
MR. SIMS: At that very low level of intensity, yes, there was something there.
MR. SCHECK: And it showed the 1.3 dot also lit up on your quality control sample 816?
MR. SIMS: Well, again, I think when you say, "Lit up," in other words, do we see a hint of activity there? Yes, we do.
MR. SCHECK: Okay. Would you not agree that with respect to the sample 31 or your dna-18, that the 1.3 dot in that sample is also certainly faint?
MR. SIMS: Well, I think--I think you are misstating the interpretation of these bands.
MR. SCHECK: Well, maybe--
MR. SIMS: Or these strips because--
MR. SCHECK: Your Honor, I move to strike this answer as not responsive. I asked him a simple question.
MR. HARMON: Excuse me, your Honor.
THE COURT: No, no, no. Don't interrupt the answer.
MR. SCHECK: I asked him if it was faint. That is all I asked him.
THE COURT: Is it faint?
MR. SIMS: I wouldn't score that as faint, no.
MR. SCHECK: All right.
MR. HARMON: Can he explain?
THE COURT: He will be allowed to and I'm sure you will ask him.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: The last printout is 1166-B.
THE COURT: Fine.
(Deft's 1166-B for id = photograph w/arrows)
MR. SCHECK: Now, as far as 1166 is concerned, could you please--your Honor, since these are faint, I would like the jury to see them. Could we mark on the lane that is dna-18 with an arrow, just point an arrow there and indicate--and after that indicate "1.3.".
MR. SIMS: (Witness complies.)
MR. SCHECK: And then on the sample 816, the quality control, could you put an arrow there and indicate--write down "1.3."
MR. HARMON: Excuse me, your Honor. I object to him writing things down that aren't there.
MR. SCHECK: No, no. It is just an arrow marking what to look at.
THE COURT: That is fine.
MR. SCHECK: Go ahead. Would you please mark "1.3."?
MR. SIMS: Well, why would I mark 1.3 when I didn't make a determination that there is 1.3?
MR. SCHECK: I am only asking you to mark 1.3.
THE COURT: Directing your attention to that location.
MR. SIMS: Okay.
MR. SCHECK: Then on the positive control or the allelic control could you mark the "1.3."
MR. SIMS: (Witness complies.) yes, I have done that.
MR. SCHECK: Your Honor, could I pass this to the jury?
THE COURT: May I see that?
MR. SCHECK: Sure.
THE COURT: I think we need to do that without the post-its as well.
(Brief pause.)
MR. HARMON: Could we take a look at it, too, your Honor?
THE COURT: Sure.
(Brief pause.)
MR. HARMON: I have an objection. He has written something down that is not there.
THE COURT: Overruled. It is merely to direct the viewer's attention to that location. Proceed.
MR. SCHECK: Actually Mr. Harmon misstates. He says there is something there.
THE COURT: Excuse me, counsel. I didn't ask for a comment.
MR. SCHECK: All right.
THE COURT: Proceed. Hand the exhibit to juror no. 1, please.
MR. SCHECK: So you would agree, Mr. Sims, that in terms of--
THE COURT: Excuse me, counsel. Do you have my permission to ask another question before you hand--
MR. SCHECK: No. My apologies.
(The exhibit was passed amongst the jurors.)
MR. SCHECK: Your Honor, I have been informed, for the record, I should say 1166-A is a printout.
(Deft's 1166-A for id = photo w/arrows)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SCHECK: Your Honor, while the jury is looking at it, maybe we can save some time by approaching on another exhibit that I have shown you.
(The following proceedings were held at the bench:)
THE COURT: What is up?
MR. SCHECK: I gave Mr. Harmon, before the break, a proposed chart that lists the combinations of genotypes that can occur between two people when you combine it with Mr. Simpson's genotype on the DQ-Alpha system in stain 305. In other words, it is literally just a list of all the possible genotypes. And I wanted to use that with the witness, and I gave it to Mr. Harmon. The witness has looked at it. He has even made some notes on this particular copy. And I thought while the jury was looking at the photograph, if Mr. Harmon has any objections to it, we could get those out of the way.
MR. HARMON: I think Mr. Sims disagrees that that, based on--this is where we get into the whole mixture business. He disagrees, based on his results from 305, that the list is as full as that list is. And since he is the only one in the chair, that is the objection. It is misleading.
(Discussion held off the record between the Deputy District Attorneys.)
MR. SCHECK: Well, the--the--this is a very simple set of alternatives. That is to say that calls were made on the presence of Mr. Simpson's genotype, the 1.1, 1.2. And on their board they list, you know, the genotypes present that are consistent with various individuals, and all that this list does is take the alternative combinations that one can have if you started with a 1.1, 1.2 and assume that this is there and then look at all the other different possible combinations. This is exactly what we did with Dr. Cotton before, so I just wanted to, since it is a longer list than the one we used before and it would save time to have all of them printed out, I just did that. I mean, I don't think it is in any way exceptional, that just as a shear mathematical calculation, those are all the possibilities.
MR. HARMON: The only problem, he is not a shear mathematician; he's a forensic scientist. Relative intensities of doing strip dots and D1S80 bands and he interprets these things.
MR. COCHRAN: Juror no. 11 has it now.
THE COURT: All right.
MR. HARMON: And so it is not--if they want to call the witness, that is inaccurate based on Mr. Sims' review of the actual data, not just blindly him setting up all the possibilities, because that is not what these forensic scientists have done.
THE COURT: Well, at this point, Mr. Scheck, why don't you see if you can lay a foundation for Mr. Sims' ability to tell us what the possible combinations are.
MR. SCHECK: Okay.
MR. COCHRAN: Judge--
THE COURT: The other problem I have with this is that you need to state what the beginning combination is before--
MR. COCHRAN: Can I say something on an unrelated matter, on a different matter?
THE COURT: Yes.
MR. COCHRAN: With regard to the Bronco--to the Bronco--to the Bronco and the chain of custody of the Bronco, subject to--can he make an offer of proof what he expects the evidence to show with Meraz and others and people getting in and out so that we can ask those questions subject to linking up?
THE COURT: No. He got his chain of custody question in and out, but he was making a--his question was assuming certain legal implications that weren't there.
MR. SCHECK: You mean that was a bad word?
THE COURT: It is not a burglary under California law.
MR. COCHRAN: Trespass would be a better word.
THE COURT: No. We have a very specific statutory definition of auto burg.
MR. COCHRAN: Two of us aren't talking. So can he then rephrase that and put it in a different context other than--
THE COURT: I think we have already gone through that, Mr. Cochran.
MR. COCHRAN: I thought you did allow the question with regard to--you struck the thing--you sustained the objection regarding burglary. You allowed the question regarding chain of custody, but I thought he might be able to use--instead of using the word "Burglary," there seems to be one more question that might be appropriate.
THE COURT: We have spent enough time on that.
MS. CLARK: While we are up there and waiting for the jury to do their thing, Mr. Cochran and I wanted to address the Court on the matter of this weekend, the timing, what day, if any, was going to be taken off. Tuesday?
MR. COCHRAN: Can we see you right at the beginning of lunch?
THE COURT: No, no, I don't have time. Well, given the jury's desire to work on a full day Saturday, we are just going to--
MR. COCHRAN: Half day Saturday.
THE COURT: We are going to break at noon on the 26th and reconvene at nine o'clock on the 30th.
MS. CLARK: Which is Tuesday?
MR. COCHRAN: Tuesday.
MS. CLARK: Which means no day off?
THE COURT: Can't do it. Can't do it.
MR. COCHRAN: Off the record.
(Discussion held off the record.)
(The following proceedings were held in open court:)
THE COURT: Mr. Scheck, would you retrieve that item.
MR. SCHECK: Thank you, your Honor.
(Brief pause.)
THE COURT: Proceed.
MR. SCHECK: So we are clear, Mr. Sims, your position is that the positive control and the quality control--withdrawn. That the positive allelic control did not fail to give the correct result in this case and therefore you did not have to redo this analysis?
MR. SIMS: Yes. There were some other ones in this case where I did redo them, but in this case, no, I felt that was the correct result and I was confident of the interpretations that were made for all these strips.
MR. SCHECK: And that is because you didn't think that the 1.3 dot was lighting up intensely enough to cause you to redo the hybridizations here?
MR. SIMS: That's correct.
MR. SCHECK: And if the 1.3 dot was lighting up due to some kind of 1.3 contaminant, like a PCR carry-over contaminant in your laboratory, that would be a problem with respect to interpreting item no. 31 and the 1.3 dot in that strip?
MR. SIMS: Well, in other words, if there were contamination from product, I would expect that there would be--more likely you would see it across than in some of the other samples, the controls, too. I don't think that the contamination would necessarily pick out that one sample on 31, for example.
MR. SCHECK: Well, if the--you see a 1.3 also on QC 816, as well as the positive control?
MR. SIMS: Well, again, I didn't say we saw a 1.3. There is a faint indication down there of 1.3. I believe we said it was scored as a hint of activity, but that is not to say that the 1.3 allele is there, because this 1.3 allele, as mentioned in the user guide, it is in the forensic literature, that's correct, that sometimes you can get a faint response of the 1.3.
MR. SCHECK: Now, to put it in terms that we discussed before, you are saying that the 1.3 in the positive control and in quality control sample 816 is an artifact?
MR. SIMS: Yes. I believe it is an artifact.
MR. SCHECK: Or to put it in another--more direct terms that we used before, it is not real?
MR. SIMS: It doesn't signify that the 1.3 allele is truly there.
MR. SCHECK: But you are saying that the 1.3 in item 31 you feel confident is real?
MR. SIMS: Yes.
MR. SCHECK: All right. Now, why don't we look at a strip that I would ask to have marked as next in order. What would that be?
THE COURT: 1168.
MR. SCHECK: 1168.
(Deft's 1168 for id = photograph)
MR. SCHECK: And this is now a photograph of DQ-Alpha types that you made on some of the Bundy drops?
MR. SIMS: This is--say it again, please.
MR. SCHECK: This is a photograph--that is a photograph of hybridization strips for the Bundy drops, some of the Bundy drops?
MR. SIMS: Well, one of the Bundy drops is represented here, but then the other samples I believe are all Bundy drop controls.
MR. SCHECK: Okay. And the--
MR. SIMS: Substrate controls.
MR. SCHECK: Sorry. And the Bundy drop in question there is what we have been calling item no. 52?
MR. SIMS: Yes. It is our no. 55-A.
MR. SCHECK: And item no. 52 is the Bundy drop that you were saying was degraded but in your judgment not substantially degraded?
MR. SIMS: That is my understanding, yes, of the RFLP that was obtained on that.
MR. SCHECK: All right. And this is the Bundy drop that you would say has the DNA--has DNA in its best shape out of all the other Bundy drops in terms of degradation?
MR. SIMS: Well, as opposed to, for example, the rear gate?
MR. SCHECK: No, I'm talking only about those samples collected on June 13th.
MR. SIMS: That is my understanding, yes, that 52--of the ones that I know of, that's the one.
MR. SCHECK: All right. Now, I would like to put this on the elmo, your Honor.
THE COURT: All right.
(Brief pause.)
MR. SCHECK: I would like to go tight if we could to what is dna-55 A.
THE COURT: Mr. Scheck, do you want to give Mr. Harris some direction here? I think we are missing part of it here.
MR. SCHECK: Yes, your Honor. I think in terms of the item of interest we are focused in the area that we need to be.
THE COURT: Well, why don't we see the whole thing.
MR. SCHECK: Let's see the whole thing. Pull back.
MR. SCHECK: Looking at 55-A, that is the strip that is the analysis of item 52, correct?
MR. SIMS: Well, this is one of the strips on which it was analyzed, yes.
MR. SCHECK: This is the first analysis you made?
MR. SIMS: Yes.
MR. SCHECK: All right. And umm, this is the one that you typed as a 1.1, 1.2?
MR. SIMS: Yes. Ultimately the call on that sample was 1.1, 1.2.
MR. SCHECK: And did you not call a 1.3 on this sample?
MR. SIMS: Well, again let me--let me refer to the actual notes page.
(Brief pause.)
MR. SIMS: That--that particular sample was--was scored as a c minus trace, that particular dot.
MR. SCHECK: Well, in other words, your--the score that you made was 1.1, 1.2?
MR. SIMS: Yes. At that time that was the score that was made at that time.
MR. SCHECK: And the 1.3 dot you did not score as real?
MR. SIMS: That's--that's correct.
MR. SCHECK: All right. Now, Mr. Harris, could you go closer on that 1.3 dot.
(Brief pause.)
MR. SCHECK: Now, there are--you do, however, in your scoring, indicate that you do see the 1.3 dot as a trace?
MR. SIMS: Yes. It is called a c minus trace.
MR. SCHECK: All right. But you are saying that that 1.3 dot is not real; it is an artifact?
MR. SIMS: Well, I'm saying that in the context of--this test was repeated because we were concerned with the interpretation of that particular result.
MR. SCHECK: We will get to the repetition in a second, but this call, even on the first run, before you repeated it, you scored it as a 1.1, 1.2 and you did not score the 1.3 as real?
MR. SIMS: Well, we didn't report anything at this point. There is no report was issued until we did the additional testing on this sample.
MR. SCHECK: You have a scoring sheet?
MR. SIMS: Yes.
MR. SCHECK: In your scoring sheet you and the second reader scored it a 1.1, 1.2 and you said there was a trace of a 1.3, but you did not call the 1.3 as real?
MR. SIMS: Well--
MR. SCHECK: At that point?
MR. SIMS: At that particular point that's true.
MR. SCHECK: And--okay. Your Honor, I would ask that--because of the visibility of these--Mr. Sims, could you put on the--on this post-it next to the lane that is--represents item 52, just an arrow and a 1.3, maybe move the post-it a little closer to the strip so it is clear.
MR. HARMON: I have the same objection.
THE COURT: Noted. It is overruled.
MR. SIMS: (Witness complies.)
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Your Honor, may I pass this to the jury?
THE COURT: May I see it first?
MR. SCHECK: Sure.
(Brief pause.)
MR. SCHECK: Just one additional question before I pass it?
THE COURT: Yes.
MR. SCHECK: So we are clear, the 1.3 dot here on lane 52, you said in your first report here, and after your subsequent rehybing of this is not real, it is an artifact?
MR. SIMS: That's real--that's correct. In other words, I couldn't eliminate it. It just appeared to be an artifact when I rehybed it.
THE COURT: All right. Would you hand it to juror no. 7 this time. 7, top row.
(The exhibit was passed amongst the jurors.)
THE COURT: All right. Mr. Scheck, would you retrieve that item, 1168, from Deputy Smith.
MR. SCHECK: Thank you.
THE COURT: All right. Proceed.
MR. SCHECK: Mr. Sims, if that 1.3 dot on sample 52 represented--was real, as opposed to an artifact--are you with me?
MR. SIMS: Okay.
MR. SCHECK: --would that not be consistent with a mixture of degraded DNA from one contributor and additional DNA by way of a cross-contamination from a second contributor who had a 1.1, 1.2 genotype?
MR. HARMON: Objection, it is irrelevant, calls for speculation, and it is inconsistent with his testimony, misstates his testimony.
THE COURT: Sustained.
MR. SCHECK: I'm asking--
THE COURT: Rephrase the question.
MR. SCHECK: Let us assume that the 1.3 allele on item 51 is real, okay?
MR. SIMS: On item 51 now or 52?
MR. SCHECK: Yes. I'm sorry, item 51--the one we have just looked at?
MR. SIMS: I think that is 52.
MR. SCHECK: Did I say--I mean LAPD item 52, the Bundy blood drop?
MR. SIMS: That sounds like the right one, right.
MR. SCHECK: Okay?
MR. SIMS: Right.
MR. SCHECK: And let us assume that that 1.3 dot that we just all looked at is real and not an artifact. Are you with me?
MR. SIMS: Okay.
MR. SCHECK: Would not the typing on that strip we just examined be consistent with a mixture of a contributor with a 1.1, 1.2 genotype and a second contributor who contributed less DNA with a 1.3 genotype, 1.3, 1.3?
MR. HARMON: Objection, your Honor. Calls for speculation, misstates his testimony and it is an improper hypothetical.
THE COURT: Overruled.
MR. SIMS: Would that--the question is would that be consistent? That is one possibility.
MR. SCHECK: Yes.
MR. SIMS: Yes.
MR. SCHECK: All right. Now, as we said--withdrawn. You agree that sample 52 has the DNA in it that is in the best shape of all the blood drops recovered on June 13th from the Bundy walkway?
MR. SIMS: That is--that is my understanding, yes.
MR. SCHECK: And if one were to assume that there was cross-contamination between Mr. Simpson's blood and the swatch 52 and others in the laboratory--are you with me? Assume some cross-contamination.
MR. SIMS: In other words, contamination from a reference sample.
MR. SCHECK: From a reference sample or from other samples, just assume cross-contamination. Let's not worry for the moment how it gets there.
MR. HARMON: I'm going to object. That is argumentative, your Honor.
MR. SIMS: I would worry how it got there.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Let us assume that this is cross-contamination with sample 52 from a reference sample or from another swatch containing Mr. Simpson's blood that had a high DNA content.
MR. SIMS: Okay.
MR. SCHECK: And let us further assume that the starting material on swatch no. 52 had DNA that was degraded.
MR. SIMS: Okay.
MR. SCHECK: Would not a result, assuming that 1.3 dot is a real dot, not an artifact--are you with me?
MR. SIMS: Okay.
MR. SCHECK: Would not the reading on this strip be consistent with that set of assumptions?
MR. HARMON: Objection. It misstates the testimony. It is improper hypothetical not based on fact and it calls for speculation. It is argumentative and compound.
THE COURT: Do you understand the factors involved in the question?
MR. SIMS: I think I understand the first about half of it and then I kind of lost it on the second half.
THE COURT: Sustained.
MR. SCHECK: Which factor don't you understand?
MR. SIMS: Well, when you start to talk about where the 1.3 comes in.
MR. SCHECK: All right. I'm asking you to assume the 1.3 we saw in that strip is real.
MR. SIMS: Okay.
MR. SCHECK: All right. And assuming the other conditions that we talked about with respect to cross-contamination--
MR. SIMS: Okay.
MR. SCHECK: --would that strip not be consistent with--wouldn't that strip be consistent with the hypothetical I just gave you?
MR. HARMON: Your Honor, I have an objection, the same ground. May we approach on this?
THE COURT: No.
MR. HARMON: May I cite a case, your Honor, for the proposition?
THE COURT: No. Sit down. Sustained.
MR. SCHECK: If one assumes that 1.3 dot is a real allele--
MR. SIMS: Okay.
MR. SCHECK: --that is not consistent with a mixture of starting material that is degraded that contains a 1.3 allele and--
MR. HARMON: Your Honor, I must object. I'm sorry to interrupt. The same grounds, assumes facts not in evidence. It misstates his own testimony.
THE COURT: Overruled.
MR. HARMON: Calls for speculation.
THE COURT: Overruled.
MR. SCHECK: Let's start again. If that 1.3 dot is real, is it not consistent--is the strip we just looked at--isn't it consistent with a mixture where the source of the 1.3 has less DNA in it than the source of the 1.1, 1.2?
MR. SIMS: Yes, that is one possibility.
MR. SCHECK: All right. Now, you redid item no. 52. That is what you called a rehybridization?
MR. SIMS: Yes, I rehybed that sample.
MR. SCHECK: And you rehybed that sample because you were troubled by the intensity of the 1.3 dot and you wanted to see if you could resolve whether it was real or not real?
MR. SIMS: Well, that--that was part of it. The second reason was that I think in that particular run the positive control showed a little bit of the 1.3 and so did the quality control sample that was run on that particular set. And those two samples were what we called--or actually this is the initial reader called the trace or hint trace level and that was another clue that maybe there was a hybridization question on those particular results. So the totality is all of that together, yes, that is why that was repeated.
MR. SCHECK: Well, you just said that you ran it again because you saw a hint of the 1.3 dot on the quality control sample in the positive control.
MR. SIMS: Well, it is--this is getting very technical, but the level of that 1.3 was somewhat increased relative to the c dots on the positive control and on the quality control sample in this particular run, as opposed to I think it was on the prior run that you mentioned where we had, what was it, 31 and 30--I think it was 30.
MR. SCHECK: You make out scoring sheets where two readers look at these dots, right?
MR. SIMS: Yes.
MR. SCHECK: And on the scoring sheet for this strip that contains item 52, when you looked at the positive control and the quality assurance control, the 1.3 was characterized as a faint trace or a hint?
MR. SIMS: One was--the quality control sample was characterized as a trace and the positive control was characterized as a hint/trace.
MR. SCHECK: And on the previous run with the console, the quality control strip and the positive control were also characterized as hints of the 1.3?
MR. SIMS: Only as hints, yes, but the reader felt that these two results on this second run were slightly higher on the 1.3. And I realize this is a subtle difference, but this is what a perfect look at.
MR. SCHECK: Well, you call them both hints, right?
MR. SIMS: On the first run they were called hints. On the second run one was called a hint/trace and the other was called a trace and a trace is more than a hint in our vernacular.
MR. SCHECK: And when you are making these distinctions between hints and traces, you are talking about almost imperceptible levels of intensity differences?
MR. SIMS: Well, they are the kind of differences that would be left--best left to the judgment of the expert, someone who has expertise and experience in dealing with these types of interpretations, yes.
MR. SCHECK: Well, you are literally looking, just as the jury did, with your naked eye at a thousand little intensity of the dots?
MR. SIMS: Yes.
MR. SCHECK: That is what you are doing?
MR. SIMS: I have a trained eye. That would be the only distinction I would make.
MR. SCHECK: And other trained eyes looking at these particular calls that you made, you might expect could have a different interpretation of these small intensities, other experienced analysts like yourself?
MR. SIMS: You mean such as Dr. Blake?
MR. SCHECK: Dr. Blake, Dr. Gerdes, Dr. Mullis, others?
MR. SIMS: I don't know if Dr. Blake, for example, would disagree with these interpretations.
MR. SCHECK: What about Dr. Mullis or Dr. Gerdes?
MR. HARMON: Objection, your Honor.
THE COURT: Sustained.
MR. SCHECK: The--you reran this--to get back to this item 52, you did what you called a rehybridization?
MR. SIMS: Yes.
MR. SCHECK: And that is you took some of the amplified product left over and you ran it on the strip again?
MR. SIMS: That's correct.
MR. SCHECK: And did you develop it for the same amount of time on the strip that you did the first one?
MR. SIMS: I would have to check the notes on that point.
(Brief pause.)
MR. SIMS: I--I am looking at a Xeroxed copy of the initial run and I'm having trouble seeing exactly how long the development was. According to our protocol, it is 20 to 30 minutes is the standard development time.
MR. SCHECK: Well, let's just see if we can make clear, before the break, what we mean by development time. You are saying that sometimes when you put the amplified product on the strip you are literally waiting for almost like a photograph for the dots to develop; is that right?
MR. SIMS: Well, yes. The very last part, after you have added the color reagents, then there is a certain time that passes as these dot intensities develop.
MR. SCHECK: And the longer you let it develop, the more you will see luminosity from the dots?
MR. SIMS: Yes, you will see an increase in the color to the point.
MR. SCHECK: And the longer you leave it to develop the less you will see luminosity from the dots?
MR. SIMS: It gets to a certain point. You can overdevelop these strips. That can help. And it is mentioned in the user guide, for example, that you can overdevelop these strips, and for example, Dr. Blake commented several times that we over developed our strips and that might be one reason we see more of the 1.3 weak result.
MR. SCHECK: Was that the hypothesis you were pursuing when you were rehybridizing this?
MR. SIMS: That is one thing that I thought, that we do let our strips develop a long time.
MR. SCHECK: And the second time that you hybridized item no. 52, you didn't let it develop as long?
MR. SIMS: I didn't say this at all. I let that go 22 minutes, it looks like, according to my notes, and 20 to 30 minutes is what is called for in the protocol.
MR. SCHECK: Well, did you let the first strip where you saw a darker 1.3 go for longer?
MR. SIMS: I--I--as I mentioned, I couldn't say that for sure, because I am looking at a Xerox copy of the notes and that may be at the very bottom and I'm not picking it up.
MR. SCHECK: But when you rehybridized, when you did it again, you still saw a faint trace of the 1.3 dot in your second hybridization, didn't you?
MR. SIMS: I think on that particular run sheet the--well, let me look at it right here. I have it.
MR. SCHECK: That was the one performed on December 31st, 1994.
MR. SIMS: Yes, I think in the run sheet I did score that as a very faint trace. I scored it as a faint trace. I think the photograph of that one speaks for itself.
MR. SCHECK: Well, when you are analyzing these dot-blots and you look at it in the tray as it is developing, often the analyst will be able to see intensities that are not picked up on the photograph?
MR. SIMS: Well, we usually read the strips and then photograph them, so depending on the quality of the photograph, that could be true. There are subtle things that one may not see on a photograph.
THE COURT: All right. Mr. Scheck.
MR. SCHECK: Last question, your Honor. One last question.
MR. SCHECK: So the fact of the matter is, when you looked at the strip when you rehybridized it, you, Mr. Sims, recorded that there was still a faint trace of the 1.3 dot?
MR. SIMS: Yes, I do.
MR. SCHECK: Okay. Thank you.
THE COURT: Ladies and gentlemen, we are going to take our break for the lunch recess. Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess until one o'clock.
(At 12:04 P.M. the noon recess was taken until 1:00 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; MONDAY, MAY 22, 1995 1:00 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Good afternoon, counsel. Back on the record in the Simpson matter. Defendant is again present before the Court with counsel, People are represented. All right. Deputy Magnera, let's have the jurors, please.
MR. HARMON: Your Honor, I just have one point. Some of the hypotheticals are--or particularly with what happened with Mr. Sims in the morning session--are beyond what the case law in this state allows. Under the authority of Hyatt versus C.R. Boat Company, 79 Cal. App. 3D. 325, in the clear law in this state is: "An expert opinion must not be based on speculative or conjectural data is well settled. An expert's assumptions of facts contrary to the proof destroys the opinion." And the reason I think that's important is, those are fairly moderate statements of the law. This Court overruled my objections where Mr. Sims was forced to assume something that was contrary to his own opinion, which really turns the whole concept--stands on its head and must feel very bizarre for him to assume something that he knows is in fact scientifically incorrect and we have these faceless reasonable scientists who might disagree. So I think it's about time that we draw the line on the hypotheticals at least until the Defense calls some of these people that might disagree, and then we can address their credibility or the basis for their opinions. But I'd really like the Court to consider the legal authority and draw the line on some of these hypotheticals when they're not even arguably based on facts that were presented. That last one forced him to assume something that was contrary to his own opinion, and we've been given no discovery that there's any other opinion by any Defense expert in this case. I'd love to see Dr. Blake's report. I know it's quite a lengthy document. But right now, this expert has been forced to pretend that he feels something might be other than what he knows it is and we've never been given any reciprocal discovery from the People that Mr. Scheck mentioned that they even have an opinion to the contrary. So I'd like to revisit that and perhaps have the Court reconsider the ruling and striking that testimony because it just stands the whole premise or the whole principal of allowing reasonable hypotheticals based on the evidence in the case and totally ignores it and just lets people pretend whatever they want.
MR. SCHECK: Your Honor, I think that this witness, for example, just in the one instance that Mr. Harmon raised indicated that he thought this was a quote, unquote, tough call, and it seems to me a fair inference from the evidence when you're dealing with small dot intensity differences and just to illustrate a basic principal of how he even arrived at his conclusions and what the issues are, to ask him to assume that this is real instead of an artifact when he goes through a whole chain of inferences to come to his opinion that it's an artifact as opposed to real.
And it seems to me that's well within the scope of a reasonable hypothetical, and it seems to me that what the Prosecution likes to do is say, "Well, if our witness said that something is x and is true in our opinion, then it's absolutely impermissible to ask a hypothetical opinion to assume x isn't true." And it seems to me that that's not the law and that's not even--particularly when the hypotheticals are based upon fair inferences in the evidence and are designed to set up the contrast between what this witness says and what other witnesses could say about those facts. And I think he even agreed that reasonable experts could make different calls based on these dot intensities. He said that himself. It's not what his view is, but he agreed others might. So I think that that particular hypothetical was certainly within the range of what one could draw from fair inferences on the evidence. And in this particular area, I think it's also important to be able to put questions to the witness to illustrate the principles that are at issue here so we can understand what their opinions are and what they aren't.
MR. HARMON: Just very briefly. The problem is, when it's a hypothetical, a hypothetical is governed by the law in this state. It must be based on facts, not the evidence. If you want to ask him principles, you change the form of the question. But to force a man to say, "I'll assume that even though I don't believe it's true," as I say, he must feel like he had an out of body experience when that happened because he knows it's not true, and here the legal system is making him pretend that it is to satisfy Mr. Scheck's curiosity when there's a different form of the question. "It is well settled that it must not be based on speculative or conjectural data." He's not conjecturing. That's not the data that he relied on. I think the other point is, this tough call business, that is not what the tough call was about, and I'm--you know, you'll be pleased to hear what the tough call was about on cross exam--on redirect examination, but it doesn't relate to this issue at all. So I'd just like to resume getting in line with California authority and the evidence code and having hypotheticals based on some reasonable interpretation of the evidence and not forcing people to pretend that things are other than what they know and that there is no conflicting data. If they want to make an offer of proof--it appears that we seem to have disgorged some data from Dr. Gerdes, and it's clear that this Court has engaged in in-camera review of Defense discovery and is slowly starting to trickle out now. If they want to make an offer of proof that there is some evidence to the contrary, then, number one, we've been sandbagged since January on that material, and, number two, we'd like to have a chance to review it and we need to call a halt to the proceedings. So--but without an offer of proof, the only evidence or the only offer of proof is that that was not a 1.3, your Honor.
THE COURT: The Court's previous ruling stands. Let's have the jury, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Mr. Sims. Let the record reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Mr. Gary Sims is again on the witness stand undergoing concluding cross-examination by Mr. Scheck.
Gary Sims, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: Deputy Magnera, would you make arrangements to stay late tonight, please, with the whole staff? Thank you. Proceed.
MR. SCHECK: Thank you, your Honor.
THE COURT: We will finish Mr. Sims today.
MR. SCHECK: Absolutely. Good afternoon, ladies and gentlemen of the jury.
CROSS-EXAMINATION (RESUMED) BY MR. SCHECK
MR. SCHECK: Good afternoon, Mr. Sims.
MR. SIMS: Good afternoon.
MR. SCHECK: Now, Mr. Sims, just one last point on--with respect to LAPD item no. 52. You were talking about two different kinds of tests performed on that item, the DQ-Alpha test that--the strip we just reviewed. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: And an RFLP test that was conducted by Cellmark?
MR. SIMS: Yes.
MR. SCHECK: Now, the DQ--out of those two techniques, the DQ-Alpha system is what is known as the more sensitive one?
MR. SIMS: Yes.
MR. SCHECK: And that means that if there were some small degraded contribution to item 52, one would be more likely to see that with the DQ-Alpha system than you would with the RFLP system?
MR. SIMS: Yes.
MR. SCHECK: Now, referring you to your findings with respect to the Bronco--
MR. SIMS: Okay.
MR. SCHECK: --the--your findings are that looking at the data now for the stains recovered on both June 14th and September 1st, that the primary DNA source on those bloodstains in the console was someone with DNA types consistent with Mr. Simpson's?
MR. HARMON: Objection, your Honor. It's vague as to which stains.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. Let's start with the call--we had some lengthy discussion about the call you made on item 31.
MR. SIMS: Yes.
MR. SCHECK: And--but assuming your call is correct with respect to item 31, it's your interpretation that the primary contributor would be someone with the 1.1, 1.2 allele genotype?
MR. SIMS: Now, this is with regards to--
MR. SCHECK: 31.
MR. SIMS: 31. Yes. This was when I--when I'd mentioned about this was the one with the tough call, that was the tough part of the call, was to decide whether or not we could say that there was a 1.1, 1.2 there as a major type. And I would contrast that with the one that we call DNA 30 which you had on the chart where we said possible 1.2 where you showed the listing of the results.
MR. SCHECK: But my question, sir, is simply, on 31, your finding was that the primary contributor--the primary contribution was DNA with the 1.1, 1.2 genotype?
MR. SIMS: That's correct. That was the interpretation that we made from that result.
MR. SCHECK: And on 303, which was collected on September 1st, your interpretation that the primary contributor of the genotype in the DQ-Alpha system was the 1.1, 1.2 genotype?
MR. SIMS: This is now on 303?
MR. SCHECK: Yes.
MR. SIMS: No. On one--on 303, we just listed the--the alleles. I don't think--we didn't state about the--which one tended to be the primary on 303.
MR. SCHECK: So on 303, in your judgment, there is--you can't distinguish which--where there's a primary contributor and where there's a secondary contributor or contributors?
MR. SIMS: That's correct. In other words, the dot intensities were fairly well-balanced for those different--like the 1.3 and the 1.1.
MR. SCHECK: And as to 304, the--would you say that the primary contributor based on your reading of dot intensities would be DNA from the 1.1, 1.2?
MR. SIMS: No. It--again, it was more like 303. Again, the similarity of the alleles was noted so that it wasn't clear necessarily what went with what from that strip.
MR. SCHECK: So you can't--you would make no interpretation as to which was the primary and which was the secondary contribution?
MR. SIMS: Based on the DQ-Alpha, we did not.
MR. SCHECK: Well, in combination with the D1S80, did you make interpretations?
MR. SIMS: Well, we noted, for example, that the 18 allele was weaker on the D1S80.
MR. SCHECK: Excuse me just one second, your Honor.
(Brief pause.)
MR. SCHECK: Now, your tests do not indicate when or in what order sources of DNA got on the console?
MR. SIMS: That's correct. In other words, I don't know the exact sequence of how things got on the console. That's correct.
MR. SCHECK: And the console is a comparatively large area within the Bronco that people could touch?
MR. SIMS: Yes.
MR. SCHECK: And in your experience as a forensic scientist, it's the kind of substrate that can contain traces of saliva or other biological material?
MR. SIMS: Yes, it could.
MR. SCHECK: And this data that you've been reporting to us could be consistent with blood from Mr. Simpson being smeared on that console first and then some other person or persons subsequently entering the car and contributing biological material to the stains on the console?
MR. SIMS: Well, it would have to be a significant contribution and it would have to be a very consistent contribution across the console.
MR. SCHECK: Of the--of traces of other alleles?
MR. SIMS: Yes.
MR. SCHECK: Now, are you saying that with respect to sample 303, you can not make any determination as to which alleles are associated with a primary contributor and which one--which ones are associated with secondary contributors?
MR. SIMS: Well, the--the principal interpretation there I think would again be the 18 allele, that that appeared to go as a secondary contribution.
MR. SCHECK: I'm only talking about the DQ-Alpha system.
MR. SIMS: No. On the DQ-Alpha, we did not break that down.
MR. SCHECK: All right. So as far as you're concerned, in the DQ-Alpha system, you can not make any assessment in terms of the strengths of the dots to differentiate the 1.1 from the 1.2 from the 1.3 from the 1.4?
MR. SIMS: Well, again, there may be some subtleties there, but we did not make any distinction along those lines, no.
MR. SCHECK: All right. So looking at the stain in 303 and the DQ-Alpha system, you've identified a series of alleles within the mixture, correct?
MR. SIMS: Yes.
MR. SCHECK: That's the 1.1, the 1.2, the 1.3 and the 1.4?
MR. SIMS: Well, wait. Not the 1.4. I think you mean the 4.
MR. SCHECK: The 4. I'm sorry.
MR. SIMS: And also, on the 1.2, we noted that it's a possible 1.2.
MR. SCHECK: Uh-huh.
MR. SIMS: That would be correct.
MR. SCHECK: Now, in assessing the possible combi--one--withdrawn. An analyst such as yourself will review possible genotype combinations that could be within a mixture such as stain 303?
MR. SIMS: Yes.
MR. SCHECK: On the DQ-Alpha system?
MR. SIMS: Yes.
MR. SCHECK: And Mr. Simpson's genotype for this DQ-Alpha system is a 1.1, 1.2?
MR. SIMS: Yes, it is.
MR. SCHECK: All right. Now, if one assumes that Mr. Simpson's genotype of 1.1, 1.2 is within that stain, 303, one can by a simple series of figuring out combinations come up with other two-person genotype combinations which, when combined with Mr. Simpson's 1.1, 1.2 genotype, will account for all the DQ-Alpha alleles in stain 303?
MR. SIMS: Well, yes. Those other types that could account for those, yes, all the alleles.
MR. SCHECK: Now, like to have this marked as Defendant's next in order, two-page document.
THE COURT: 1169.
(Deft's 1169 for id = two-page document)
(Brief pause.)
MR. SCHECK: Mr. Sims, ask you to look at this and see if you would agree that the list here of genotypes represents the actual combination of two-person genotypes--withdrawn--represents two-person genotype combinations which, when combined with Mr. Simpson's genotype of 1.1, 1.2, will account for all the DQ-Alpha alleles in stain 303.
MR. SIMS: Okay. Yes. This is the list you showed me at the break, and I believe those are correct.
MR. SCHECK: All right. Your Honor, could I--
MR. SCHECK: Now, let me just put that up on the elmo to give an idea what this looks like.
(Brief pause.)
MR. SCHECK: So this chart, as one moves down it, just simply lists all the different possible genotypes of a second contributor and a third contributor that could account for all the DQ-Alpha alleles in stain 303 when combined with Mr. Simpson's genotype. And let the record reflect I've now pushed the page down through page 1 which gives 23 combinations and now exhibiting 24 through 37. Now, Mr. Sims, looking at this chart, out of these combinations on the chart of two people's genotypes that could account for all of the DQ-Alpha alleles in stain 303 when in combination with Mr. Simpson's genotype, isn't it true that only two include the genotypes of Ronald Goldman and Nicole Brown Simpson in combination?
MR. SIMS: I'm going to have to look at this for a minute because I notice that you have the second and third and then you just change the types the--you just reverse the order. For example, in no. 1, you have 1.1, 1.1 for the second contributor, then you have a third contributor as a 1.3, 4, but then you also on 24 list the second contributor as being 1.3, 4 and the third contributor as being 1.1, 1.1.
MR. SCHECK: Well, Mr. Sims, just take your time, study the chart and see if you can tell us out of all the combinations on that chart of two people's genotypes that would account for all the alleles in the DQ-Alpha system in the mixture stain of 303, how many of those combinations--and see if you're clear with me on the question--would include the genotype of Ronald Goldman and Nicole Brown Simpson as the second and third contributor; out of those combinations, how many are included in that combination, that is Nicole Brown Simpson's DQ-Alpha type and Ronald Goldman's DQ-Alpha type together. Do you understand my question?
MR. SIMS: I think so. May I write on the--
THE COURT: Do you have a clean copy of that available?
MR. SCHECK: We have a clean page 1.
MR. SCHECK: So why don't you make your notes on page 1.
THE COURT: No. He's already started on that one. Mr. Sims, have you already started on that one?
MR. SIMS: Yes.
THE COURT: I just want to make sure you have a clean copy available.
MR. SIMS: Now, the question has to be that they are both together as opposed to the possibility that one could be there with somebody else?
MR. SCHECK: Right. We're just asking--
MR. SIMS: Both together.
MR. SCHECK: On the hypothetical, that Mr. Simpson's genotype 1.1, 1.2 is there, and if looking at the number of combinations that one could have of two other contributors that explain all the alleles, in terms of those combinations, tell us how many of those combinations are ones where Nicole Brown Simpson's genotypes and Ronald Goldman's genotypes together part of the combination.
MR. SIMS: Okay.
(Brief pause.)
MR. SIMS: Okay. I see it in two of them.
MR. SCHECK: Two of them?
MR. SIMS: Yes.
MR. SCHECK: So out of the 37 combinations there, only two are consistent with--of a two-person genotype combinations which, when combined with O.J. Simpson's genotype of 1.1, 1.2, will account for all the DQ-Alpha alleles in stain 303, only two of them are ones where--that have Nicole Brown Simpson's genotype and Ronald Goldman's genotype together?
MR. SIMS: Yes. From this--on this list, that's correct.
MR. SCHECK: All right. Now, let's discuss the steering wheel, item no. 29.
MR. SIMS: Okay.
MR. SCHECK: On direct examination, Mr. Harmon asked you to read from your report with respect to your findings on the steering wheel. Do you recall that?
MR. SIMS: Yes.
MR. SCHECK: But subsequent to your report, there was additional testing by Cellmark?
MR. SIMS: Yes.
MR. SCHECK: And that testing was the same DQ-Alpha locus that you looked at?
MR. SIMS: Yes.
MR. SCHECK: And also poly-marker test?
MR. SIMS: Yes.
MR. SCHECK: Would you not agree, Mr. Sims, that looking at your data and the Cellmark data, that the best interpretation of item no. 29 is that the person who deposited the 4 allele is either a genotype of 1.1, 4, 4, 4 or 1.2, 4? That's the best interpretation of the data.
MR. SIMS: I know that--that expression "Best interpretation of the data" because that's the--the term that Dr. Blake uses when he interprets data like that, and I--I think that probably is, for our purposes, the best interpretation of that data, yes. I--I think I brought this out and I won't go into detail again, but I don't--I don't think we can be absolutely sure that that is the correct interpretation.
MR. SCHECK: But as far as you're concerned, looking at all the data, that is certainly the best interpretation?
MR. SIMS: Well, again, that's without studying the Cellmark data. That's just looking at what I see on our DQ-Alpha results. And I'd have to sit down with the Cellmark data and perhaps talk to Dr. Cotton about all those results and look at intensities and all that sort of thing, and I haven't done that.
MR. SCHECK: Well, you have looked at their poly-marker--
MR. SCHECK: Can I mark this Defendant's next in order?
THE COURT: Defendant's 1170.
(Deft's 1170 for id = poly-marker strip)
MR. SCHECK: You have looked at their poly-marker strip?
MR. SIMS: I--I looked at this briefly, yes.
MR. SCHECK: And looking at the intensities of dots on the poly-marker strip, those would tend to support the interpretation, the best interpretation of the data that you and I just agreed upon?
MR. SIMS: Well, I don't--I don't feel comfortable giving an opinion on that because I don't have a lot of hands-on experience with poly-marker and I have to rely on talking to somebody like Dr. Cotton about her interpretation. So I think I should give that particular opinion.
MR. SCHECK: Well, in terms of the intensities of the dots, for example, at the--without going into excruciating detail, but looking at the dots at the HBGG locus--
MR. HARMON: Objection. Beyond this witness' expressed expertise.
THE COURT: Beyond the scope of correct as well. Sustained.
MR. SCHECK: Dr. Cotton's interpretation of--I'm sorry--of no. 29 is that it is a DQ-Alpha type 1.1, 1.2 and 4 in the mixture?
MR. SIMS: Yes.
MR. SCHECK: And you do not disagree with that finding, do you?
MR. SIMS: No, I don't.
MR. SCHECK: And I think, as you just indicated, you would agree that the best interpretation of the data is that the contributor of the 4 allele in this mixture would either have a 1.1, 4, a 4, 4 or a 1.2, 4 genotype?
MR. HARMON: Objection. It's vague as to what that data is.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: The data that you have and from what you've seen of the DQ-Alpha data from Cellmark and looking at all the data, would you not agree that the best interpretation is that the person who deposited the 4 allele is either a 1.1, 4, a 4, 4 or a 1.2, 4?
MR. SIMS: Well, again, I don't know--I don't use that interpretation, that best interpretation line. That's--I would normally say that yes, I think that's probably what's going on here, but I would hold open that possibility that I mentioned.
MR. SCHECK: Now--well, wouldn't you say that based on the fact that the 4 dot is greater than the all control in your tests, that it is extremely unlikely that the 4 is from an individual who possesses the 1.3 allele?
MR. SIMS: I'd have to look at that strip again to make that comment.
THE COURT: And, Mr. Sims, that's--what's the exhibit number on that?
MR. SIMS: 1166. I think this is the wrong photo.
MR. SCHECK: Okay. Do you have the photo there? Do you have your photo?
MR. SIMS: Yes. I think I can produce it.
THE COURT: Well, why don't we use the one that's in evidence, counsel.
MR. SCHECK: No, I don't think we have--if it's not on this strip, I'm not sure it's in evidence.
THE COURT: All right.
MR. SCHECK: And while Mr. Sims is looking for that, your Honor, I ask permission to pull out the chart so I can go through what I think is the last line of questions.
(Brief pause.)
MR. SIMS: I--my answer to your question is, I don't think the all but 1.3 dot is particularly relevant here because I think, as you mentioned when we were discussing about how these dot calls are made, if the other samples have activity that will light up a dot, then I don't--I don't think that interpretation is proper here. I don't think the all but 1.3 call, the call on that dot is particularly relevant to this--to the discussion at that--at the levels of intensity that we're talking about.
MR. SCHECK: Now, assuming that there is a contributor to the--item no. 29, the steering wheel stain, that's a 1.1, 4, a 4, 4 or a 1.2, 4--are you with me?
MR. SIMS: Okay.
MR. SCHECK: Such an individual could also be a contributor based on the data you find on the stains on the console, 303, 304 and 305?
THE COURT: Forgive me for interrupting you. The problem is, the easel, Mr. Harris, is blocking juror no. 7's view of the witness here.
MR. SCHECK: If we could move the big one away, I think that would be better. If we can move the big one and then away from that, that will make it easier.
MR. SCHECK: Do you have my last question in mind?
MR. SIMS: If you could repeat it, please.
MR. SCHECK: Sure. An individual with--individuals--withdrawn. The genotypes 1.1, 4, 4, 4 or 1.2, 4 all could be genotypes that contributed to the stains on the console, 303, 304, 305 and your interpretation of 31?
MR. SIMS: Okay. I'm with you on 303 and 304. Now, the other one you mentioned was?
MR. SCHECK: 305.
MR. SIMS: And the other--and the last one was?
MR. SCHECK: Your interpretation of 31, the June 14th sample.
MR. SIMS: In other words, would--would we be able to exclude somebody with those genotypes out of these mixes? Is that the basic question?
MR. SCHECK: That's right.
MR. SIMS: And the mixtures that we're talking about are 1.1, 4, 1.2, 4 and 4, 4?
MR. SCHECK: 1.1, 4 is one potential genotype, 4, 4 is another potential genotype and 1.2, 4 is another potential genotype.
MR. SIMS: That's--that's correct.
MR. SCHECK: Okay. Now, do you have--I'm sorry. Looking at--if we go with the view that there was a contributor to the stain on the steering wheel, no. 29, that--and may I just write on this board, chart? One of the genotypes we mentioned was 1.1, 4, correct?
MR. SIMS: Yes.
MR. SCHECK: Another genotype we mentioned was a 1.2, 4?
MR. SIMS: Yes.
MR. SCHECK: And the third genotype we mentioned was a 4, 4?
MR. SIMS: Yes.
MR. SCHECK: All right. Now, do you have with you the frequency tables that you used to calculate the frequencies for the genotypes you reported for the Prosecution for the DQ-Alpha system?
MR. SIMS: Yes, I believe I do have that table.
MR. SCHECK: Now, starting with the Caucasians--
MR. SIMS: Okay.
MR. SCHECK: --what is the frequency of the 1.1, 4 genotype in the Caucasian population?
MR. SIMS: I'll give this as a percent?
MR. SCHECK: As a percentage.
MR. SIMS: 7.6 percent.
MR. SCHECK: What is the frequency of the genotype 1.2, 4 for the Caucasian population?
MR. SIMS: 12 percent.
MR. SCHECK: What is the frequency of the 4.4 genotype?
MR. SIMS: Caucasian again?
MR. SCHECK: Yes.
MR. SIMS: Would be 8 percent.
MR. SCHECK: What is the frequency of the 1.1, 4 genotype for the African-American population?
MR. SIMS: 8.9 percent.
MR. SCHECK: What is the frequency for the 1.2, 4 allele for the African-American population?
MR. SIMS: This would be for the 1.2, 4 genotype, not allele.
MR. SCHECK: That's right.
MR. SIMS: 18.
MR. SCHECK: What is the frequency of the 4, 4 genotype for the African-American population?
MR. SIMS: 9.5 percent.
MR. SCHECK: For Hispanic population, the 1.1, 4.
MR. SIMS: 9 percent.
MR. SCHECK: Excuse me. For the 1.2, 4?
MR. SIMS: The 1.2, 4?
MR. SCHECK: Yes.
MR. SIMS: 9.2 percent.
MR. SCHECK: And for the 4, 4?
MR. SIMS: 17 percent.
MR. SCHECK: Now, if one were to add together the frequencies of these three genotypes for the Caucasian population, the 1.1, 4, the 1.2, 4 and the 4, 4, what would be the sum?
MR. SIMS: May I just look at the chart?
MR. SCHECK: Please. In fact, to save us time, why don't you add it up for all three columns.
MR. SIMS: (Witness complies.)
MR. SCHECK: Thank you.
MR. SCHECK: Your Honor, maybe I should move this exhibit around so--
THE COURT: To the center? All right.
MR. SCHECK: Yes.
(Brief pause.)
MR. SCHECK: Now, in the chart labeled People's 260, there's a column indicating "Individuals not excluded," correct?
MR. SIMS: Yes.
MR. SCHECK: And that's not excluded in terms of the genotype combinations that could be found in the stains, some of which are mixtures?
MR. SIMS: Yes.
MR. SCHECK: And with respect now to the steering wheel, what we've done in this chart is list the frequencies for the Caucasian population, the African-American population and the Hispanic population for the genotype 1.1, 4.
MR. SIMS: Yes.
MR. SCHECK: And these reflect percentages of those populations that can't be excluded just as the 1.1, 4 genotype can't be excluded as contributors to the stain 29 on the steering wheel?
MR. SIMS: I--I--you lost me a little bit at the very end there. In other words, you asked me about those three possible genotypes, and what I'm giving you is the listing of those frequencies in the various population groups.
MR. SCHECK: Right. And for Caucasians--withdrawn. And we had--with respect to the steering wheel, we agreed that it's consistent with the findings that the contributor of the 4 allele could have a 1.1, 4, a 1.2, 4 and a 4, 4, correct?
MR. SIMS: That's--that's correct. In other words, if we throw out the possibility that there--that that 4 could go with any other type and just said that this has to be a 4 standing by itself with those other two alleles, you know, continuing the hypothetical, yes.
MR. SCHECK: So in other words, the possible contributor of the 4 allele could be--could have one of these three genotypes?
MR. SIMS: Well, again, I couldn't absolutely rule out that that 4 allele went with a weak allele or an allele from the weaker component that didn't get amplified at that level of sensitivity.
MR. SCHECK: You're saying that--that's a phenomenon known as allelic drop-out, isn't it?
MR. SIMS: No.
MR. SCHECK: Well--withdrawn. You're--you agree--you don't disagree with Cellmark's position that Mr. Goldman's 1.3, 4 is excluded?
MR. SIMS: Well, I think we went through this the other day about how this kind of call or how this interpretation can be made, and my concern was that we are amplifying so little DNA to begin with on this sample. We're talking about 400 of these picograms that we mentioned and we're talking about that 4 allele perhaps going with--with a--as part of the weaker component of that 400. So you really are getting down there and you're really pushing the system to guara--to say that you can guarantee that you'd see everything from the weaker contribution. That's my concern, and I think we went through all this a couple days ago.
MR. SCHECK: But your concern would apply then to possible other--if that's your concern, then you can't rule out the possibility of other contributions at low levels on 303, 304, 305?
MR. SIMS: Well, again, I can only talk about what I can see. And what I can see are a certain number of alleles and a certain number of types and I can see certain patterns emerging as I look across the results of this case. But on any particular sample--for example, there could be one cell from you and I might not detect it.
MR. SCHECK: Okay. But let's just look at what you did see on sample 29 from the Bronco.
MR. SIMS: On sample 29 now from the Bronco.
MR. SCHECK: Yes. The steering wheel.
MR. SIMS: This is the steering wheel, right.
MR. SCHECK: And all you saw was a 1.1, a 1.2 and a 4?
MR. SIMS: That's correct.
MR. SCHECK: You didn't see a 1.3.
MR. SIMS: No.
MR. SCHECK: And you agree that the best interpretation of the data is that the genotype of the contributor of the 4 is either a 1.1, 4, a 1.2, 4 or a 4, 4?
MR. HARMON: Objection. Asked and answered, asked and answered, asked and answered.
THE COURT: True.
MR. SCHECK: Well, if he wouldn't stop--
MR. SCHECK: Is that true?
MR. HARMON: Objection. Asked and answered.
MR. SCHECK: Well, withdrawn. Withdrawn. Let's just go through this. If one looks at the 1.1, 4, the 1.2, 4 and the 4, 4--
MR. SIMS: Okay.
MR. SCHECK: --for the Caucasian population. Okay?
MR. SIMS: Okay.
MR. SCHECK: And add together the frequencies for those genotypes.
MR. SIMS: Yes.
MR. SCHECK: That 27.6 percent represents the percentage of the population that cannot be excluded as the source of the 4 allele on the steering wheel?
MR. SIMS: With all those assumptions in place, yes.
MR. SCHECK: All right. And with respect to the African-American population, 36.4 percent of the population cannot be excluded as the possible source of the 4 allele on the steering wheel?
MR. SIMS: Again, with those assumptions, yes.
MR. SCHECK: And looking at the Hispanic population, 35.2 percent of the Hispanic population cannot be excluded as the source of the 4 allele on the steering wheel?
MR. SIMS: That's correct. Same assumptions.
MR. SCHECK: And I recall on direct examination that Mr. Harmon asked you some questions about the percentage of the population that couldn't be excluded as possible sources of the 4 allele on the steering wheel.
MR. HARMON: Objection. That misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: Did Mr. Harmon ask you some questions about excluding the front line of the San Antonio Spurs and the Los Angeles Lakers? Do you recall that?
THE COURT: Let's not get into that again.
MR. SCHECK: I don't want to get into those--
THE COURT: We're not.
MR. SCHECK: As you sit here, can you exclude the front line or the starting five of the robbery-homicide squad of the Los Angeles Police Department as possible contributors of the 4 allele?
THE COURT: I don't think so. Try again.
MR. SCHECK: All right. Can you exclude--these are--let's put it this way. 27.6 percent of the Caucasian population is over a fourth?
MR. SIMS: Yes, it is over a fourth.
MR. SCHECK: 36 per 4--36.4 percent of the African-American population is over a third?
MR. SIMS: Yes, it is over a third.
MR. SCHECK: Same thing is true with the Hispanic population?
MR. SIMS: Yes.
MR. SCHECK: All right. And to the extent that those populations are in combination among personnel in the robbery-homicide squad of the Los Angeles Police Department, these percentages would apply to them as they would anybody else?
MR. HARMON: Objection. Assumes facts not in evidence, no foundation, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: One second, your Honor.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: And, Mr. Sims, if we follow through on the caveat that you gave us, would that be a fair--now, that may be a bad word. You gave a qualification of some kind with respect to your reading on the steering wheel, correct?
MR. SIMS: Yes.
MR. SCHECK: And you're saying it's possible that there might be some unknown allele that goes with the 4?
MR. SIMS: I--I'm saying that's a possibility that I would consider.
MR. SCHECK: And if one follows through on the possibility of their being an unknown allele that goes with the 4 and factors that in, then that would include a hundred percent of the Caucasian and African American and Hispanic population if you factored in an unknown allele here?
MR. SIMS: Well, it's--it is much more complex than that because you do get into questions of how these allele sequences are related to each other and which ones you may see this phenomenon going into. So I'm not going to give a blanket statement to that. It's a very complex part of the technology.
MR. SCHECK: Well, if you assumed that there is a possible unknown allele that could be a contribution to the mixture in the steering wheel and just followed that hypothesis through, the percentage of the population not excluded would be even larger than the ones that are on this chart?
MR. SIMS: Well, in this particular case, where I have a 1.1, 1.2 demonstrated as a main type, then the main allele I would be worried about with this phenomenon is the 1.3 allele, not the 2 allele so much, not the 3 allele. It really does come down to the 1.3 allele. And that's just a complex part of this technology. It's not--it's not a blanket statement that I would just throw out there for all of these alleles.
MR. SCHECK: I'm asking you about just the question--and I understand that's your explanation--just the question, if you assume that there was a possible unknown allele, following through with your hypothesis, that's not being detected, then it would be consistent in terms of calculating the percentages, that they would get even larger than those that are put on the board as to the possible genotypes that can't be excluded?
MR. SIMS: Well, again, I--I--I think this begs a question of what if there, for example, was a cell from you on that steering wheel? I might not detect it.
MR. SCHECK: Mr. Sims, could you answer my question?
MR. SIMS: Well, I don't understand it.
MR. HARMON: Well, your Honor--
THE COURT: Wait. Wait. Wait. Don't argue with the witness.
MR. SIMS: Sorry, your Honor.
THE COURT: Don't argue with the lawyer.
MR. SCHECK: Mr. Sims, my question to you, sir, if you assume that there could be a contribution on the steering wheel of an allele that you can't see--are you with me?
MR. SIMS: Yes.
MR. SCHECK: If you were to calculate the percentage of the population that couldn't be excluded as contributors to the steering wheel, it would be even larger than the percentages for each racial group than is depicted on this chart?
MR. SIMS: Yes, it would be larger.
MR. SCHECK: Thank you. No further questions. I have to mark this.
THE COURT: 1171.
(Deft's 1171 for id = chart)
THE COURT: All right. Mr. Harmon, are you ready to go forward or do you want five minutes?
MR. HARMON: 10.
THE COURT: 10 minutes? All right. All right. Ladies and gentlemen, we're going to switch to redirect by Mr. Harmon. I'll give him 10 minutes to set up. And I'll just ask you to step back in the jury room, and we'll call you out as soon as we're ready to go. All right. Mr. Sims, you can stretch your legs.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. All parties are again present. Let's have the jurors, please, Deputy Magnera. And, madam reporter, you want to break at 3:15?
THE COURT REPORTER: Or 3:30.
THE COURT: 3:30?
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let's have it quiet, please. Let the record reflect that we have been rejoined by all the members of our jury. Mr. Sims, would you resume the witness stand, please. All right. Good afternoon again, Mr. Sims. Mr. Harmon.
MR. HARMON: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
REDIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Mr. Sims, I want to start out addressing some of the issues that Mr. Scheck raised in cross-examination with you. Is that okay?
MR. SIMS: Okay.
MR. HARMON: I noticed that in response to many of Mr. Scheck's hypotheticals, you gave answers that things were possible. Do you recall that?
MR. SIMS: Yes.
MR. HARMON: Did any answer that you gave expressing a possibility to Mr. Scheck's hypotheticals, did any of those answers in any way undermine any of the results and opinion that you've previously addressed on direct examination?
MR. SCHECK: Objection. Speculative, argumentative.
THE COURT: Overruled.
MR. SIMS: No.
MR. HARMON: And why did you say "It's possible" so many times?
MR. SIMS: Well, when you--
MR. SCHECK: Objection. Vague.
THE COURT: Overruled.
MR. SIMS: When hypotheticals are created, certainly you get to a point where you can say anything is possible, and anything is possible.
MR. HARMON: Now, Mr. Sims, do you remember Mr. Scheck asked you whether or not you had any reason to believe Robin Cotton was involved in a conspiracy?
MR. SIMS: Yes.
MR. HARMON: Okay. Do you have any reason to believe Greg Matheson is involved in any conspiracy to frame the Defendant in this case, Mr. Simpson?
MR. SIMS: No.
MR. HARMON: Do you have any reason to believe that Dennis Fung is involved in a conspiracy to--
MR. SCHECK: Objection. No foundation, outside the scope.
THE COURT: Sustained.
MR. HARMON: Mr. Sims, Mr. Scheck asked you to--in another one of these hypotheticals to describe the numbers of possible combinations that could be accounted for in the stain on the console, item 303, and he asked you to assume that the Defendant's type, a 1.1, 1.2 is in there, and he gave you that sheet. Do you recall that sheet?
MR. SIMS: Yes.
MR. HARMON: And you looked very carefully at that sheet; did you not?
MR. SIMS: Yes.
MR. HARMON: And it's true, is it not, that that's only one of the markers that you performed on that stain--on that stain on 303?
MR. SIMS: Yes. DQ-Alpha was only one of the markers we tested for.
MR. HARMON: So that sheet and that entire series of questions ignored an entire set of data that you produced from your analyses on those stains; did it not?
MR. SIMS: Yes, it did.
MR. HARMON: But let's take it at face value if you will, okay, Mr. Sims?
MR. SIMS: Okay.
MR. HARMON: You described ignoring half of the data that your lab produced, that--
MR. SCHECK: Objection.
THE COURT: Rephrase the question.
MR. HARMON: You've described in not addressing the D1S80 data that you produced in your test to that stain, that only two of the 37 combinations were consistent with combinations of the victims? Is that the way you've described it?
MR. SIMS: The way the hypothetical was presented, yes.
MR. HARMON: Okay. And let's talk about possible interpretations of those 37 results, only two of which were consistent with the victims in this case, okay?
MR. SIMS: Okay.
MR. HARMON: Could that mean that there were 35 other people killed that night whose blood was in that car?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. SCHECK: Argumentative.
THE COURT: Rephrase the question.
MR. HARMON: Could that mean that there were 35 other dead people whose blood was found on that console in that car?
MR. SCHECK: Objection.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Could that mean that there were 35 other deceased people whose blood was found in the stain in 303?
MR. SCHECK: Objection.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Does that mean that there were 35 other living people whose blood was found on that stain in the car?
THE COURT: 35 other persons who may have contributed with different genotypes.
MR. SIMS: Yes.
MR. HARMON: Okay. For example, you can't exclude the possibility that 35 other people with different genotypes had nosebleeds on that same spot on the console, can you?
MR. SIMS: Well, again, they'd have to miss the substrate control area, but that's true.
MR. HARMON: Okay. Is there something funny about broncos that might cause nosebleeds like that?
MR. SCHECK: Well, your Honor--
THE COURT: Sustained.
MR. HARMON: Mr. Scheck asked you and you struggled to try to think of a casework experience you've had--
MR. SCHECK: Your Honor--
THE COURT: Sustained. Why don't you rephrase it without the characterization.
MR. HARMON: Sure.
MR. HARMON: Remember Mr. Scheck asked you whether or not you'd had an actual case where you had blood mixtures?
MR. SCHECK: Objection. That's not what I asked him. Proficiency tests.
THE COURT: Overruled. In the context of proficiency testing.
MR. HARMON: Well, and then you went on--he went on, and I believe you said you thought you'd encountered such a thing in casework. Do you recall that?
THE COURT: Let's have him--
MR. SCHECK: Your Honor, objection. I only asked him about proficiency tests.
THE COURT: Sustained.
MR. HARMON: Have you ever encountered a blood mixture in actual casework?
MR. SIMS: Yes, I have.
MR. HARMON: Could you explain the scenario or the setting of that case?
MR. SIMS: Yes. The--
MR. SCHECK: Objection. Beyond the scope.
THE COURT: Overruled.
MR. SIMS: The scenario, as I recall it, was, an individual was beaten with a weapon, a blunt object that caused a lot of bleeding of the victim, and the issue was whether or not we could find some of the perpetrator's type who also we thought might be bleeding on that particular weapon, that perhaps had put the handle in, and we were able to show that there was a mixture of victim and perpetrator blood and it did happen that the blood then did match also the perpetrator's type or--I'm sorry--or the suspect's type. So those things will happen, yes.
MR. HARMON: So in the context of that case, it was the mixture of these two coincidental types that were significant to you; is that right?
MR. SIMS: Yes.
MR. HARMON: And it is a challenge trying to sort those things out, is it not, when they're blood mixtures?
MR. SIMS: Yes, it is. And that's why I think it's important to look at all the data.
MR. HARMON: All the different markers that you test?
MR. SIMS: All the different markers and all the results.
MR. HARMON: And in the context of that case, you found the victim's blood on something associated with the suspect?
MR. SIMS: Yes. That was it.
MR. HARMON: And then the suspect's own blood mixture on something associated with him?
MR. SIMS: Yes. That was it basically.
MR. HARMON: Okay. Just to digress for a second, if you saw Mr. Simpson's type in a stain and you were unable to see a c dot there, how would you report that?
MR. SIMS: In our laboratory, we would not consider that to be a typeable result. We would note the types, but we would not consider it to be a reportable result.
MR. HARMON: Okay. Now, Mr. Scheck asked you whether or not your tests can show the order of deposition or when or the order of deposition on the console. Do you recall that?
MR. SIMS: Yes.
MR. HARMON: In fact, regardless of when or how or the sequence of events that caused stains to be deposited there, if your tests showed the types that are actually there, they perform successfully; is that true?
MR. SCHECK: Objection. Move to strike the characterization.
THE COURT: Overruled.
MR. SIMS: I would say yes.
MR. HARMON: For example, the steering wheel, can you tell when or the order those stains or those actual biological materials were deposited there?
MR. SIMS: No.
MR. HARMON: And Mr. Scheck's--the handwritten chart with those large numbers on it, do those numbers also ignore some of the data that was produced in this case--on that stain?
MR. SCHECK: Objection.
THE COURT: Rephrase the question.
MR. SCHECK: Move to strike.
THE COURT: Rephrase the question.
MR. HARMON: Is there other data that was produced as a result of yours and Cellmark's testing on the steering wheel that could tend to contribute to the frequencies that you calculated?
MR. SIMS: Well, yes. There was data generated by Cellmark with regards to the poly-marker.
MR. HARMON: Is your opinion as it was when you testified last week concerning being unable to say that the 1.3 allele is not there?
MR. SIMS: Can you rephrase that again?
MR. HARMON: Sure. Is your concern or your opinion about the results of 29, the steering wheel stain, is it as you expressed it last week; that you can not say that because of the low amount of DNA that was in that sample, that the 1.3 allele is not there?
MR. SIMS: That's correct. In other words, I can not unequivocally say that we would have seen the 1.3 allele in that test.
MR. HARMON: And in that regard, in that context, including all the data that was produced in this case, what is the significance of Mr. Scheck's handwritten chart summing up frequencies?
MR. SCHECK: Objection.
THE COURT: Sustained. Rephrase the question, significance.
MR. HARMON: What is the forensic significance of the summed-up chart--
MR. SCHECK: Move to strike.
THE COURT: No. It's not a motion to strike. It's an objection. Rephrase the question.
MR. SCHECK: Objection.
MR. HARMON: In your opinion, does Mr. Scheck's chart in light of the concern that you--or the limitation or the reservation you have about 29, what does the chart mean when it sums up all the frequencies?
MR. SCHECK: Objection. Objection.
THE COURT: Sustained. Rephrase the question. The question is unintelligible.
MR. HARMON: Do those frequencies reflect anything significant in your opinion with regard to the results that you obtained from steering wheel item no. 29?
MR. SCHECK: Objection. Move to strike, argumentative. Frequencies are the frequencies.
THE COURT: Motion to strike the question is not appropriate in California, counsel.
MR. SCHECK: My apologies. Objection.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Okay. Do those frequencies reflect anything in relation to your opinion and your reservation about the results on item 29 from the steering wheel?
MR. SCHECK: Objection.
THE COURT: Rephrase the question.
MR. HARMON: What if anything do those frequencies reflect in light of your reservations about your test results from item 29?
MR. SCHECK: Still objection.
THE COURT: Mr. Sims, you saw that chart?
MR. SIMS: Yes.
THE COURT: You indicated that you had some concern about the numbers that were there, the assumptions that were behind it.
MR. SIMS: Yes. My concern was just that--with the assumption.
THE COURT: What assumption concerns you in rendering that opinion?
MR. SIMS: Well, what concerned me was that I again couldn't absolutely rule out the possibility of the 1.3 allele not being detected in that weak mixture. That's all.
THE COURT: Proceed.
MR. HARMON: Thank you, your Honor. May we see Defendant's exhibit 1166 on the elmo, your Honor?
THE COURT: Yes. Mr. Fairtlough. This is the dot blot photo.
(Brief pause.)
MR. HARMON: Mr. Sims, you recognize that when you saw 1166, that's Dr. Blake's photo; is that right?
MR. SIMS: Yes. I believe that one was, 1166, yes.
MR. HARMON: But the handwriting on there is your handwriting?
MR. SIMS: The--the writing on those strips is by Renee Montgomery.
MR. HARMON: Let's start at the top and describe the items so that the jury can appreciate all the results that are contained on exhibit 1166. DNA 17, what LAPD item does that correspond with?
MR. HARMON: May we have the--might be hard--the Bundy or the Bronco board up there?
(Brief pause.)
MR. HARMON: Mr. Sims, while we're getting to that, in spite of all the questions that Mr. Scheck asked you about Defense exhibit 1166, do you have any doubt about the results that you expressed on direct examination?
MR. SIMS: No. I was confident of all the calls we made on this run.
MR. HARMON: In fact, focusing on exhibit 1166 ignores all of the D1S80 results which were produced from analysis of these samples? Is that true?
MR. SCHECK: Objection to the characterization of the word "Ignores."
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Mr. Scheck's discussion of Defense exhibit 1166 does not take into account any of the D1S80 results on the items that were analyzed that are listed on 1166?
MR. SCHECK: Objection. Objection to the phrasing of this question.
THE COURT: Sustained. It's leading.
MR. HARMON: What if anything do the D1S80 results contribute to your understanding and your expression of the results that are reflected on 1166, simply the DQ-Alpha strips?
MR. SIMS: Well, again, we look to the consistency of the additional systems that were tested; and in this case, it would be D1S80.
MR. HARMON: Okay. While you're looking there--let's look at every alternate strip if we would, starting from the second from the top. DNA 17C, that's a substrate control?
MR. SIMS: Yes. DNA 17C, that's cut off a little bit by the post-it, but that's the substrate control, yes.
MR. HARMON: And there's no typeable activity in there; is that right?
MR. SIMS: That's correct. No dots light up at all.
MR. HARMON: And what does that mean?
MR. SIMS: That means that no activity--no DNA was detected in the substrate control for that particular sample.
MR. HARMON: Okay. And let's move down to DNA 18 control. That is the Bronco center console 31 substrate control?
MR. SIMS: Yes.
MR. HARMON: And that--again, would you describe those results?
MR. SIMS: Yes. That control on DNA 18, which is 31 LAPD, again totally negative, no dots light up at all.
MR. HARMON: And DNA 29 which corresponds to LAPD 293, the Bronco carpet, driver's side that was consistent with Nicole Brown, is that substrate control--what result does that produce?
MR. SIMS: Again, the substrate control for that item is totally negative. No dots were seen.
MR. HARMON: And jumping another strip down to the lane or the label DNA 30 control, is that the substrate control for LAPD item 305 on the center console?
MR. SIMS: Yes, it is.
MR. HARMON: And that substrate control produced no typeable results; is that true?
MR. SIMS: That's correct. No dots. Not just no typeable results, but no dots period.
MR. HARMON: No dots whatsoever. And we'll discuss substrate controls in a while. Do these substrate control strip results show that there was or that there was no typeable activity on all of those strips and all of those stains?
MR. SIMS: That's correct.
MR. HARMON: Okay. Now, let's start out with DNA 17. What was your result on that?
MR. SIMS: The type for that was 1.1, 1.2.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: DNA 18?
MR. SIMS: On DNA 18, that was--now, that was a mixture of types with the main type being a 1.1, 1.2 with the weaker type being a 1.3, 4. And what made this one more difficult was the assessment of whether or not the 1.2 allele was really there. I think we talked about this earlier, that there's not a distinct separate probe for the 1.2 allele. So you have a dot there, the 1.2, 1.3, 4 dot, that can be lit up by any of those three probes. And the key here that we--and admittedly, this one was one where we had to take a hard look at--was that that intensity is so great in that 1.2, 1.3, 4 dot that the 4 and the 1.3 alone would not produce a dot of that intensity. So we made the determination from that that we felt that the 1.2 allele was present which meant that the main type was 1.1, 1.2 and that the weaker components were 1.3, 4.
MR. HARMON: And D1S80 results on that stain?
MR. SIMS: On DNA 18?
MR. HARMON: Yes.
MR. SIMS: That was the--we found both the 24 and the 25 alleles present.
MR. HARMON: And Mr. Goldman is a 24, 24?
MR. SIMS: That's correct.
MR. HARMON: Mr. Simpson is a 24, 25?
MR. SIMS: That's correct.
MR. HARMON: And that narrows down the possibilities when you include that?
MR. SIMS: Yes, it does significantly.
MR. HARMON: And let's move on then to DNA 29.
MR. SIMS: Okay. On DNA 29--excuse me. The--the call on DNA 29--and this is actually LAPD no. 293. The main--the call there was that that--the main type was a 1.1, 1.1 and there's--it's--it's hard to see on mine, but there was--there was a little bit of activity at the--at the 1.2, 1.3, 4 dot. So we interpreted that to be a 1.1, 1.1 with a possible trace of 1.2.
MR. HARMON: And there's none of this funny stuff with the 1.3 dot on this strip, is there?
MR. SIMS: On that strip?
MR. HARMON: Yes.
MR. SIMS: No. It was negative.
MR. HARMON: Let's move on to DNA 30 then.
MR. SIMS: Okay. For DNA 30, this is LAPD no. 305. Now, in this particular case--this is where we talked about the tough call. If you contrast DNA 30 with DNA 18, you can now see that there is a 1.1 dot, there's a 1.3 dot, there's a 4 dot, but now the question is, is the 1.2 allele definitely present. And we argued--well, we discussed it. We decided that no, you could not definitely say that the 1.2 allele was present because that 4 dot and the 1.3 dots could possibly give an intensity similar to that. So that's why on our chart, we see over there possible 1.2.
MR. HARMON: Okay. Mr. Scheck asked you with regard to results on Defense exhibit 1166--or strike that. He asked with regard to one of the other sets of strips. Could another trained eye disagree with you? Do you recall that question?
MR. SIMS: Yes.
MR. HARMON: Has any other trained eye disagreed with you?
MR. SCHECK: Objection. Hearsay.
THE COURT: As to these results?
MR. SCHECK: Yes.
THE COURT: Sustained.
MR. HARMON: Would you like to see another trained eye disagree with you on those results?
MR. SCHECK: Well--
THE COURT: Overruled.
MR. SCHECK: Argumentative.
THE COURT: Overruled.
MR. SIMS: I'd be happy to discuss any result we generated in this case with any other expert.
MR. HARMON: Has anyone had that discussion with you?
MR. SCHECK: Objection. Calls for hearsay.
THE COURT: Overruled. Yes or no? Have you discussed these results with any other experts other than Miss Montgomery.
MR. SIMS: No. No, other than people in our laboratories as I mentioned as part of the team.
MR. HARMON: And if some trained eye discussed it with you, could they also retest with the remaining evidence in this case?
MR. SCHECK: Objection. Move to strike. He's calling for hearsay about trained eyes.
THE COURT: Overruled. But the question was regarding retesting.
MR. SIMS: Yes. If somebody disagreed with these results, then they could retest the evidence. They could request the extracted DNA. They could retest the product, the PCR product.
MR. HARMON: Mr. Scheck discussed in the context of this strip the possibility of PCR carryover. Do you recall that?
MR. SIMS: Yes.
MR. HARMON: PCR product carryover?
MR. SIMS: Yes.
MR. HARMON: And do you see any signs of PCR product carryover in any of the substrate controls or any of the negative controls in this case?
MR. SIMS: No, I did not.
MR. HARMON: And I believe you said this is Dr. Blake's photo?
MR. SIMS: Yes, I believe this one is.
MR. HARMON: The Defense expert in this case?
MR. SIMS: Yes.
MR. HARMON: Were you present when he took the photo?
MR. SIMS: Yes, I believe he was because he was also present at the reading of that--
MR. HARMON: Were those two separate--I'm sorry.
MR. SIMS: He was present at the reading of these strips. We took our photo and then I believe he took his photo, but I'd have to check my notes on that.
MR. HARMON: Could you do that?
MR. SIMS: (Witness complies.) I--I believe it was photoed at that same time. I--yes. I do believe it was.
MR. HARMON: At the same time?
MR. SIMS: Well, right after we made our photograph. That's my recollection.
MR. HARMON: Okay. And throughout this whole photography and reading process, have you consistently interpreted the strips the way you've described your conclusions to this jury?
MR. SIMS: Yes.
MR. HARMON: And also including the D1S80 results?
MR. SIMS: Yes.
MR. HARMON: And nothing has happened to sway your opinion at all; is that correct?
MR. SIMS: No.
MR. HARMON: Let's move to Defense exhibit 1168.
(Brief pause.)
MR. HARMON: Now, do you rec--I believe you said you recognize the handwriting on this one?
MR. SIMS: Yes, I do.
MR. HARMON: That's Dr. Blake's handwriting?
MR. SIMS: Yes. That looks like Dr. Blake's handwriting at the top and on the right side.
MR. HARMON: What sorts of contact did you have with Dr. Blake with respect to the set of strips that were run that are reflected on Defense exhibit 1168?
MR. SIMS: Can you rephrase that question for me, please?
MR. HARMON: Sure. What were the nature of your contacts with Dr. Blake? I'm not asking you to describe conversations. What kinds of contacts did you have with regard to the strips that are shown in Defense exhibit 1168?
MR. SIMS: Well, Dr. Blake photographed these results in our laboratory. Again, I'd want to check because there were a couple times when he came back and photographed our photos, like there was some glare problems or something like that. So I think--I think though on this particular one, he was probably present. But if I could have one second, I'll check on that.
MR. HARMON: Sure.
MR. SCHECK: Your Honor, while he's doing that, can we approach for a second about a matter?
THE COURT: No.
MR. SCHECK: 1054 matter.
THE COURT: No.
MR. HARMON: Your Honor, could we have 259, the Bundy board, up there now?
(Brief pause.)
MR. SIMS: No. It's not clear exactly when that photograph was taken by him.
MR. HARMON: Okay. Was he present when you read those strips?
MR. SIMS: I don't believe he was. I don't--I didn't record that. So I don't think he was.
MR. HARMON: When you actually read them, are you writing them down, the results, on some sort of piece of paper?
MR. SIMS: Well, the way it's done is, we have a run sheet where you fill out the results for each one of these dots and the--the primary analyst, the one who does the actual run, writes down his or her results. And then what happens is, the second reader comes along, looks at just the strips and tells the primary analyst what his or her interpretations are. So we have two separate readings of these--of these strips.
MR. HARMON: Okay. And at a later point, you show all those things to Dr. Blake?
MR. SIMS: Well, yes. In other words, Dr. Blake would review the strips.
MR. HARMON: And again--well, strike that.
MR. SCHECK: Move to strike, unreviewed, the implication. I want to approach.
THE COURT: Overruled. No.
MR. HARMON: Now, Mr. Scheck spent quite a bit of time about whether or not the 1.3 was an artifact. Do you recall those series of questions?
MR. SIMS: Yes.
MR. HARMON: And you feel that it is; is that correct?
MR. SIMS: On that particular sample, I believe it is, yes.
MR. HARMON: Okay. And we'll talk about your rehybridization in a couple minutes. But do Cellmark's DQ-Alpha, poly-marker and RFLP results corroborate your opinion that the 1.3 allele that you detected or the 1.3 artifact that you detected in that strip is in fact an artifact?
MR. SCHECK: Objection. Irrelevant.
THE COURT: Overruled.
MR. SIMS: Yes, they do corroborate that.
MR. HARMON: And would it be sound scientific practice to focus on the first of two hybridization strips to debate about whether or not the 1.3, which is seen on the strip on 1168, is an artifact when that issue is resolved by another laboratory's DQ-Alpha, poly-marker and RFLP results?
MR. SCHECK: Objection.
THE COURT: The question is argumentative.
MR. HARMON: What impact do--or could you explain the impact that Cellmark's DQ-Alpha, poly-marker and RFLP results have on the discussion you had with Mr. Scheck about the 1.3 artifact that might have been on the strip reflected by no. 52 on exhibit 1168?
MR. SIMS: Well, it doesn't--as far as the interpretation of that particular data, that's--I repeated that result because of the overall pattern that I saw on the strips. But the--it doesn't--the final interpretation is consistent with that being an artifact.
MR. HARMON: And by that, Cellmark's DQ-Alpha results were what?
MR. SIMS: They were 1.1, 1.2.
MR. HARMON: Not a mixture?
MR. SIMS: I--that's my recollection.
MR. HARMON: And their poly-marker results?
MR. SIMS: I believe they were also--
MR. SCHECK: Objection. Move to strike. He can't comment on poly-markers for me.
THE COURT: Sustained.
MR. HARMON: Assume hypothetically Cellmark's poly-marker results included Mr. Simpson. Would that corroborate the fact that the 1.3 was an artifact?
MR. SIMS: Yes.
MR. HARMON: And also, we can't forget your D1S80 results. Were they corroborative of the fact that that stain was consistent with Mr. Simpson and did not appear to be a mixture?
MR. SIMS: Yes. When we looked at an additional system, we saw no evidence that there was a weak component in a mixture.
MR. HARMON: Now, again, other trained eyes could disagree with you, couldn't they?
MR. SIMS: Yes.
MR. HARMON: Have any other trained eyes disagreed with you?
MR. SIMS: No.
MR. SCHECK: Objection. Same objection as before, hearsay.
THE COURT: Overruled.
MR. HARMON: And has anything happened since you first interpreted the DQ-Alpha strip for your DNA item 55A, which is LAPD 52, which is on the projection screen as Defense exhibit 1168, that causes you to question that that is a 1.1, 1.2?
MR. SIMS: No.
MR. HARMON: Okay. But nonetheless, you rehybridized is; is that true?
MR. SIMS: Yes. In other words, within our own laboratory, we checked it out.
MR. HARMON: Okay. But before we move on to that, you mentioned a couple of times that this was a tough call for you. Do you recall that?
MR. SIMS: Yes.
MR. HARMON: And would you explain what you mean or what you meant by that to the jury?
MR. SCHECK: Objection. Asked and answered already on redirect.
THE COURT: I think we've asked that already.
MR. HARMON: Have you already answered that question?
MR. SIMS: I think we talked about it in the context of that other--that other stain, which was really the tough call about whether or not the 1.1 and the 1.2 were together in that stain.
MR. HARMON: Okay. Well, let's--can we put--may I have it marked as People's next in order, a--
MR. HARMON: You--Mr. Sims, do you have the hybridization photo for the rehybridization of 52--oh, you know, before--I'm sorry. Before we move on, let's stay with 1168 if we can for a couple minutes. Start at the top, Mr. Sims, and tell us--there are a lot of things up there that have C's next to them. There's a 52C, a 47C, a 48C, a 50C. You see all those?
MR. SIMS: Yes, I do.
MR. HARMON: Are those substrate controls?
MR. SIMS: Yes. All of those with the c at the end are substrate controls. From the top, it would be for LAPD no. 52, LAPD no. 47, substrate control 48, substrate control 50, substrate control--those are all substrate controls for Bundy drops.
MR. HARMON: And just to summarize them, did they all produce no typing results?
MR. SIMS: Well, again, not--no dots at all were seen with those.
MR. HARMON: And what is the importance of those stains having produced no typing results just in the context of this series of tests that are reflected on 1168?
MR. SIMS: Just within this series?
MR. HARMON: Yes.
MR. SIMS: Well, again, you don't see any level of contamination such as PCR product control as you look across the series of strips like this.
MR. HARMON: Okay. And do they also have an important role in the bigger picture?
MR. SIMS: I think they have a very important role in the bigger picture.
MR. HARMON: And we'll talk about the bigger picture in a while, okay?
MR. SIMS: Okay.
MR. HARMON: Can we have the--
MR. HARMON: Did you give me your photo that shows the rehybridization of 52? I believe that's back there. You want to check up there, Mr. Sims? We seemed to have lost it.
MR. SIMS: Yes.
(Brief pause.)
MR. SIMS: I do have it. No. I'm sorry. This is not it. This is a different photo.
MR. HARMON: I have it.
THE COURT: All right. Have you shown that to Mr. Scheck?
MR. HARMON: May we have that marked as People's next in order?
THE COURT: 274.
(Peo's 274 for id = photograph)
MR. HARMON: Okay. Mr. Sims, could you just start at the top of People's exhibit 274 and describe the samples that are represented by those horizontal strips?
MR. SIMS: Yes. This is--this is some rehybridizations of some of the samples that we wanted to take a second look at in this case. The first one is 42B1, which was stain B1 from the sock. The next one is 41B2, which is also from the sock. And then there's a positive control that was being rehybed, a negative control. And then the 55A on the--which is the one, two, three--the fifth strip down, that's no. 52, the rehybe.
MR. HARMON: The second one from the bottom?
MR. SIMS: The second one from the bottom. And then the last one is a rehybe of the positive control that was run at the same time that 52 originally was run.
MR. HARMON: And is your opinion still the same about LAPD 52, which is the stain out in the driveway in the rear of the Bundy residence, that drop of blood, as it was when you saw the strips the first time you hybridized them?
MR. SIMS: Well, yes. But now I have--I have checked it to make sure that that is the correct type, the 1.1, 1.2 is the correct type.
MR. HARMON: Okay. And in this rehybridization process, is that something that another trained eye could do if they had any of the DNA?
MR. SIMS: Yes. That's--that's something you could do with the PCR product.
MR. HARMON: Anyone who's conversant with this system?
MR. SIMS: Yes.
MR. HARMON: And you've already described, there's quite a bit of PCR product around on these samples?
MR. SIMS: Well, there's--on all these samples, I believe we still have PCR product left on all of them.
MR. HARMON: Would that be one way of confirming or refuting the results that you produced here in Court?
MR. SIMS: It would be one check, yes.
MR. HARMON: Okay. And we talked about the poly-marker and D1S80 results. How do they support your initial and now confirmed opinion that 52 is a 1.1, 1.2?
MR. SCHECK: Motion to strike with respect to poly-marker.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Do the Cellmark poly-marker, DQ-Alpha results and your D1S80 results--
THE COURT: Poly-marker is the problem.
MR. HARMON: Excuse me?
THE COURT: Poly-marker.
MR. HARMON: Do the Cellmark poly-marker--
THE COURT: No. No. No. No poly-marker.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Do the Cellmark results and your D1S80 results confirm your finding that the 1.3 was an artifact in light of the fact that--
THE COURT: Sustained. It's vague. I think you're restricted to the D1S80.
MR. HARMON: And the DQ-Alpha, your Honor.
THE COURT: And the DQ-Alpha that Cellmark did.
MR. HARMON: Do the Cellmark RFLP and DQ-Alpha results and your D1S80 results confirm your initial opinion which is confirmed on People's 274, that the 1.3 was an artifact in item 52?
MR. SIMS: Well, again, there's consistency in all those results.
MR. HARMON: And other trained eyes could disagree with you?
MR. SIMS: Yes.
MR. HARMON: But none have to your knowledge?
MR. SCHECK: Objection. Move to strike.
THE COURT: Sustained.
MR. HARMON: Mr. Scheck asked you a lot of questions about your sound scientific practice. Do you recall those a couple days ago?
MR. SIMS: Yes.
MR. HARMON: Does that mean that the way you do things is the only way to do things?
MR. SIMS: No.
MR. HARMON: For example, you use a restriction enzyme HAE 3, Cellmark uses hin-f1?
MR. SIMS: Yes. That would be a difference.
MR. HARMON: So HAE 3 isn't the only sound scientific practice then?
MR. SIMS: That's correct.
MR. HARMON: What about extraction techniques? That's one of the initial steps in the process. You use the organic extraction process?
MR. SIMS: Yes. In this case, we used the organic extraction process. For example, there's a chelex extraction process and that's--that's an acceptable practice.
MR. SCHECK: Your Honor, I move to strike these questions as outside the scope of cross-examination in terms of these particular type things. It's not what I asked him about.
THE COURT: Overruled.
MR. HARMON: When you said--when you describe things as sound scientific practice, do you mean that any other way things are done is unsound?
MR. SIMS: No.
MR. HARMON: Have you always done things the way you do them now?
MR. SIMS: No.
MR. HARMON: For example, did you always flame your tools?
MR. SIMS: No.
MR. HARMON: Were you unsound before you flamed your tools?
MR. SIMS: I don't think so.
MR. HARMON: Why do you flame your tools?
MR. SIMS: Well, there's some things that you do in this business just because that shuts down anyone saying, "Well, why didn't you do that," or, "What did you think about that," or, "Is it possible that you had something on there?" And so there's certain steps that one can take to just eliminate any of those possibilities. And I've been involved in a case recent--not too long ago where it was inferred that the way I was cleaning my tools was insufficient. And so what I decided to do was to say, okay, let's remove that argument. Let's just burn these things.
MR. HARMON: To your personal knowledge, does Dr. Edward blank flame his tools?
MR. SCHECK: Objection. Irrelevant.
THE COURT: Sustained.
MR. HARMON: Even if an analyst wasn't as meticulous as you, if he follows the PCR, DQ-Alpha user guide, including the use of positive, negative and substrate controls, in your opinion, would those results be sound scientific results?
MR. SCHECK: Objection. Move to strike without foundation.
THE COURT: Overruled.
MR. SIMS: Yes. I think if one follows the user guide, that those are--those would lead to sound results. Those are sound practices leading to good results.
MR. HARMON: Other sound practices?
MR. SIMS: Yes.
MR. HARMON: Mr. Scheck asked you some questions about your QA manual, your quality assurance manual?
MR. SIMS: Yes.
MR. HARMON: Recall those?
MR. SIMS: Yes.
MR. HARMON: Do you believe that the examiner should only or should examine only one item of evidence at a time?
MR. SIMS: Yes.
MR. HARMON: In fact, that's what your QA manual says; is that right?
MR. SIMS: Yes, it does.
MR. HARMON: And do you believe that this practice of examining only one item of evidence at a time will guard against sample mix up and cross transfer?
MR. SIMS: Yes. It's a very important tool because that way, you only have one thing in front of you that you're dealing with at any given moment when you're talking about examining a basic bloodstain or swatches for example.
MR. HARMON: And that's from your quality assurance manual?
MR. SIMS: Yes, that is.
MR. HARMON: Do you believe that reasonable care will be taken to ensure that the risk of inadvertent transfer between high and low DNA concentration samples, evidence and reference samples and between victim and suspect is minimized if you take reasonable care?
MR. SIMS: Yes.
MR. HARMON: And do you believe that this may include only processing the samples at a different time or space and/or processing only a few samples at a time?
MR. SIMS: Yes. That's from our QA manual.
MR. HARMON: Is it that hard to do?
MR. SIMS: No. It's done routinely in laboratories all over the country.
MR. HARMON: Now, Mr. Scheck asked you several days ago about a seven-day period from start to finish with some of your evidence processing through typing. Do you recall that series of events and questions?
MR. SIMS: Yes. I believe that was from some time in August.
MR. HARMON: Okay. And now, in that context, I'd like to actually describe what you did versus what you normally do. Okay, Mr. Sims?
MR. SIMS: Okay.
MR. HARMON: Did that seven days represent the fastest period of time within which those complete set of tests could have been performed?
MR. SIMS: By no means. In fact, it was September now. I remember it was a series of days in September. But I think what that would represent was about the slowest it could ever take to do that series of tests.
MR. HARMON: Okay. Why was it so slow?
MR. SIMS: Well, we were being extremely methodical as far as sampling this evidence. We were--we were documenting each part of the process--
MR. SCHECK: Excuse me, your Honor. Could he be specific as to which samples because I asked him about a few.
THE COURT: Yes.
MR. HARMON: Sure.
MR. HARMON: Could we focus on what--the series of questions this was about? Do you recall the dates?
MR. SIMS: Yes. It began I believe on September 8th.
THE COURT: And do you recollect what items you were testing?
MR. SIMS: Well, again, I'm going to have to refer to my notes to refresh my memory.
THE COURT: All right.
MR. SIMS: Is there a question in front of me?
MR. HARMON: Sure. What items did that sequence or that series represent, Mr. Sims?
MR. SIMS: That would be item no. 47, item no. 1, item no. 20, item no. 14, item no. 15, item no. 16, item no. 17, item no. 18, item no. 19, item no. 20, item no. 26. I think that's--well, no. There was some additional items. Now, item no. 293, item no. 305.
MR. HARMON: Mr. Sims, are you going back and forth between your DOJ numbers and the LAPD numbers on us?
MR. SIMS: Oh, I'm sorry. I'm doing that, yes.
MR. HARMON: Could we get them in terms of LAPD numbers?
MR. SIMS: Well, no. Actually I don't--yes, I'm sorry. I did do that. I mentioned 47, I mentioned 1, 20, 24, 29, 30, 31, 32, 34, 55, 293, 305. I think that's it for those samples.
MR. HARMON: Well, what took so long that you don't normally do in the processing of these samples?
MR. SIMS: Well, I think--I think you begin by the fact that any time you have a guest in the laboratory, that automatically adds a certain amount of time to the process.
MR. HARMON: Is that unusual?
MR. SIMS: No. I mean, there's a certain level of hello, how are you and all that kind of thing that always goes on. But more to the point would be that the documentation would be twofold. In other words, I would take a photograph and then Dr. Blake would take a photograph and then I'd stop and make sure he had taken his photograph before I moved on to do my next step and et cetera, et cetera, et cetera. So that's--that's a long part of the process. And that--now, that would include just the actual sampling of these items. In other words, to get it out of that coin envelope, documented, photographed, et cetera, and then put into a test tube for later testing.
MR. HARMON: What about the weighing of samples? Did that take place during this sequence?
MR. SIMS: Yes. This was something that I had never done before in a case, where I actually weighed the swatches, individually weighing them. And, you know, as you can imagine, one has to be very careful because you're starting to now handle the evidence in an unusual way. And so you have to make sure that goes right. And that takes time.
MR. HARMON: Having never done this before and adding a new step in the sample processing, does that increase the likelihood or possibility of some sort of problem?
MR. SIMS: Well, it--any time you excessively handle things, it makes me nervous. But I--I just had to slow things down to make sure that we didn't lose one of these. For example, in other words, one didn't fly off the forceps or something like that and land on the floor. That would be the kind of concern that I would have.
MR. HARMON: Is there anything in your protocol about weighing samples?
MR. SIMS: No.
MR. HARMON: How much additional time do you think this weighing, double documentation, double photographing contributed to the process?
MR. SIMS: Well, I mean, to the whole--it's hard for me to say exactly, but it would at least double, maybe triple the amount of time that I'd spend, something like that. I don't know exactly.
MR. HARMON: Okay. Now, I believe you mentioned that you did the organic extraction process?
MR. SIMS: Yes.
MR. HARMON: And chelex you mentioned earlier, that's a much faster process?
MR. SIMS: Yes. The chelex extraction can be done in a matter of a couple hours. The organic for one thing would take overnight, and then there's a lot more processing down at the--afterwards.
MR. HARMON: And there's another step called the product gel?
MR. SIMS: Yes.
MR. HARMON: And do you usually do that before you--the final product or the typing is conducted?
MR. SIMS: Usually, but not always.
MR. HARMON: Okay. Sometimes you do it afterwards?
MR. SIMS: Yes. Sometimes I do it afterwards.
MR. HARMON: If you do it afterwards, then you can start from sampling to typing in a shorter period of time?
MR. SIMS: Yes, because it's one step that you do later. So you could have a typeable--you could have a typing result and then just do that later.
MR. HARMON: And is that sound scientific practice to do it afterwards just as it is to do it before?
MR. SIMS: I have no problem with that.
MR. HARMON: Okay. And you believe--I believe in the sequence, you also did a slot blot, did you?
MR. SIMS: Yes. I believe it was a slot blot was run on these samples, yes, and that was by Renee Montgomery.
MR. HARMON: And how much time does a slot blot contribute to this entire seven-day period?
MR. SIMS: Well, overall, that would probably add about a day's worth of work to this because there was the preparation of the slot blot. Then it's got to be hybed. Then you do the actual test. Then there was the documentation of it. For example, Dr. Blake would come over and review all of our results. So we would spend time putting--figuring out what the quantities were and then we'd review all that stuff. So that takes a lot of time.
MR. HARMON: So is there any way to compare how long you took in that seven-day process with someone else who's trying to exonerate or implicate someone else in short order?
MR. SIMS: I don't think it's a fair comparison.
MR. HARMON: Let's talk about the EAP marker specifically as it relates to the fingernail scrapings.
MR. SIMS: Okay.
MR. HARMON: Okay? On direct examination, you briefly referred to scientific literature about the EAP system. Could you just briefly summarize general concerns about the EAP system?
MR. SIMS: Yes. Briefly this is--
THE COURT: Counsel, haven't we been through this with this witness on direct and with Mr. Matheson? I mean the jury has heard the concerns about EAP.
MR. HARMON: I've got a few questions. Mr. Scheck went into it on cross, your Honor.
THE COURT: I understand that. But I'm saying I don't think the foundation is necessarily required at this point. The jury has already heard this discussed three times before.
MR. HARMON: I'm sorry, your Honor.
THE COURT: That's the point I'm trying to make.
MR. HARMON: You've reviewed Mr. Matheson's notes and you've reviewed his electrophoretogram marked as People's 273 for identification; have you not?
MR. SIMS: Yes, I have.
MR. HARMON: Okay. And you're aware of the number of samples that are on there?
MR. SIMS: Yes, I am.
MR. HARMON: Could you from left to right read the number of evidence samples that are on that electrophoretogram?
MR. SIMS: 80--
MR. SCHECK: Objection. Hearsay.
THE COURT: Overruled.
MR. SIMS: 84A, 84B, 85A, 85B, 115, 116 and 117.
MR. HARMON: Okay. And reviewing 84A and B, which purport to be from the fingernail scrapings of Nicole Brown taken at the--during the autopsy process, how would you report the EAP type for 84A and B?
MR. SCHECK: Objection. Beyond the scope of cross-examination. I asked about degradation matters.
THE COURT: Overruled.
MR. SIMS: Well, I mean this is--this is somewhat difficult because obviously I'm not the one that read the original plate. But I think if you look at this particular set of results, you do see that some of these samples have their a bands starting to fade away. I can--I can see consistency in that. And I also note that in that critical area of the plate on the left side where 84A and B are, there is some distortion in the gel. And I don't--I don't think you can definitely say that that's a B result. That would be my conclusion.
MR. HARMON: What would you say?
MR. SIMS: Well, I recognize that there are the bands--I see some bands there that you could say, you know, may be attributable to a B. In other words, it's not an a, for example. There's no doubt in my mind that it's not an a result. But I don't think you can absolutely say that that's a B either.
MR. HARMON: Okay. Would you look at 117?
MR. SIMS: Okay.
MR. HARMON: What's that look like?
MR. SCHECK: Objection. Beyond the scope of cross.
THE COURT: Sustained.
MR. HARMON: May we approach on that, your Honor?
THE COURT: 117 was not an issue discussed. Proceed.
MR. HARMON: May we approach, your Honor?
THE COURT: No. Proceed.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Is 115 and 116 also on that electrophoretogram?
MR. SIMS: Yes.
MR. HARMON: Would you exclude Nicole Brown as the source of the blood under her nails now that you've explained to the jury what you think 84A and B look like, if you assume that she was an EAP type BA?
MR. SIMS: Well, it's--I'm not looking at this result just in that vacuum of the particular gel. I mean, I'm taking into account the information that we derived from the PCR results and I'm also taking into account my understanding that there was no indication of any tissue as found on the sample. So from that--those to me are powerful pieces of information because it indicates that this is not just some isolated sample, but this would be part of that entire mix that was looked at by the PCR testing, which included Nicole Brown. And so I would not use this to exclude her.
MR. HARMON: Okay. And I believe your description of what you see, you see some possible a bands there. Is that consistent with the scientific--the primary scientific literature that Mr. Scheck referred to on cross-examination?
MR. SCHECK: Objection. Leading.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Are your observations about seeing something in the a band area consistent with the main stream scientific literature on the subject?
MR. SCHECK: Objection. Vague, objection, as to where.
THE COURT: Overruled.
MR. SIMS: Well, my concern was that that key area where the most stable a band is is not really--
THE COURT: Excuse me, Mr. Sims. The question was, is that consistent with what you have seen in the scientific literature on the subject? Yes or no?
MR. SIMS: I'm sorry. Is what consist--
THE COURT: Rephrase the question, counsel.
MR. HARMON: Okay. You've described--you've told the jury that you would not describe that as a B. You've told the jury that you see something in the a band area. Knowing the degradation process of an EAP type BA, in seeing what you see in the a band area, is your observation consistent with a BA degrading to a B based on the main stream scientific literature on that point?
MR. SCHECK: Objection. Vague as to that question, your Honor.
THE COURT: Overruled.
MR. SIMS: Well, my concern--I think that misstates what I said somewhat about seeing some a bands there. My concern is that critical area is not where the a band would be, one of the key a bands would be is not that clear from this particular result. So that--and that is consistent with the scientific literature, that one of those a bands is more stable than the other.
MR. HARMON: Okay. I would like to talk about--
MR. HARMON: What time are we going to break, your Honor?
THE COURT: 3:30.
MR. HARMON: 3:30. Okay.
THE COURT: 3:30.
MR. HARMON: I'd like to talk about Dr. Blake and his presence in your lab a little bit more. Mr. Scheck elicited from you that you frequently change gloves between samples in this case. Do you remember that last week?
MR. SIMS: Yes.
MR. HARMON: Did Mr. Blake's involvement in this case have some impact on your changing gloves between samples?
MR. SIMS: Yes, it did.
MR. HARMON: Could you explain at each point in the process why Mr. Blake's involvement caused you to change gloves in this case between samples?
MR. SIMS: Yes. When we were processing the samples, the--one of the activities I mentioned was weighing of the swatches. So that meant that for each one of these, I had to go one at a time around different areas of the laboratory. And I was particularly concerned about having handled doorknobs and touching different things as far as what that may potentially be on my gloves. So I would contrast that with the situation where you're just working with clean tools, then it's unlikely that you would get any contamination on your gloves, where you're just working in one area. And it was because of the request for the weighing of the swatching that that would--would necessitate or would make me want to be more concerned about how those--about the changing of gloves.
MR. HARMON: So would you actually--with each sample that was taken, would you then go take it and be weighed and photographed individually?
MR. SIMS: Yes. It would be taken to another room for photography and then taken to another room for weighing and then brought back into the main laboratory area where I was working.
MR. HARMON: And is that why you changed gloves between samples?
MR. SIMS: Well, that was one of the key concerns in my case because I was handling a lot of different surfaces at that point.
MR. HARMON: Okay. Now, so it's not your practice then to routinely change gloves between every sample that you're processing in a case, in a normal case?
MR. SIMS: That's correct.
MR. HARMON: Okay. And is your practice consistent with the amplitype PCR, DQ-Alpha user guide?
MR. SIMS: Yes, it is.
MR. HARMON: In that regard, do you change gloves frequently to avoid sample-to-sample contamination?
MR. SIMS: Yes.
MR. HARMON: And do you change them whenever they might have been contaminated with DNA and whenever exiting the work area?
MR. SIMS: Yes. Whenever for--whenever I would think that I may have contaminated my gloves, I would immediately take them off.
MR. HARMON: Do you recognize that language from section 2.2.2 of the user guide?
MR. SIMS: Yes, I'm familiar with that.
MR. HARMON: Is it that hard to do?
MR. SIMS: No.
MR. HARMON: Have you ever had Dr. Blake take photos of you in a case before?
MR. SIMS: We've--we've been involved in several cases over the years. I--I can't recall one where he took photos of me, you know, as opposed to photos of the evidence.
MR. HARMON: Okay. Did your examination of the glove, no. 9, from Rockingham take a long time in this case?
MR. SIMS: Yes, it did.
MR. HARMON: Do you recall how long it took?
MR. SIMS: I think that was on a--that was on a Sunday as I recall.
(Brief pause.)
MR. SIMS: Actually it was a weekend. It was a good part of a weekend was spent on that glove initially, and then there was additional examination in I believe in November of the glove.
MR. HARMON: And did you engage in the documentation practice that you've described where you took photos and weighed things and have Dr. Blake take his own photos?
MR. SIMS: Well, in that case now, we didn't weigh anything from the glove. But there was the kind of documentation that you mentioned.
MR. HARMON: Why were those samples not weighed?
MR. SIMS: We were not asked to do that by the Defense.
MR. HARMON: Who actually--how did that come about, that you weighed samples for the first time in this case?
MR. SIMS: Dr. Blake told me that he, that the Defense wanted--
MR. SCHECK: Your Honor, I have no idea what he's going to say next, but we would stipulate we asked to weigh the samples.
THE COURT: All right. Pursuant to a Defense request?
MR. SIMS: Yes. Pursuant to a Defense request.
MR. HARMON: Okay. Let's talk about the glove exam just for a moment while we're talking about the glove. Why did you look in the notch area?
MR. SIMS: Yes. This was--this was after looking over a lot of--
MR. SCHECK: Outside the scope of cross-examination.
THE COURT: Overruled.
MR. SIMS: Well, the way this came about was, I started thinking about how someone with a bloody finger might want to take a glove off and use that notch to do it.
MR. SCHECK: Move to strike as speculation.
THE COURT: Sustained.
MR. HARMON: What drew your attention to the notch on the glove?
MR. SIMS: There was a small amount of stain down in that area.
MR. HARMON: And had you already sampled the blood in other areas?
MR. SIMS: Yes, I had.
MR. HARMON: Had you done testing in those other areas?
MR. SIMS: Well, I hadn't--I didn't have any results at that point. I had just taken samples from other areas.
MR. HARMON: Okay. And then you mentioned there was some small stains in that area?
MR. SIMS: Yes. There was a small stain in particular that caught my eye.
MR. HARMON: And where was that?
MR. SIMS: That was down by that notch.
MR. HARMON: And why was that of significance to you?
MR. SCHECK: Objection, form of the question.
THE COURT: Overruled.
MR. SIMS: Well, there were a lot of stains on that glove to look at, but I--I--again, that's why I looked in that particular area, was because I thought there may be some significance to one taking a glove off and using the notch to do that.
MR. SCHECK: Move to strike.
THE COURT: Overruled.
MR. HARMON: Could we get the glove photo board and the glove result board up there? Put the result board up--272-A and B. Put the result board up first, please.
(Brief pause.)
THE COURT: Continue, counsel.
MR. HARMON: Okay. Mr. Sims, could you show us the--
(Brief pause.)
(Discussion held off the record between the Deputy District Attorney and Defense counsel.)
MR. HARMON: I think you've described your attention being drawn to the notch. What drew your attention or what stains are we talking about that drew your attention to the notch area of the glove from Rockingham no. 9?
MR. SIMS: Well, on this--this again would be from my notes on page 71. I noted an area on the inner surface with the notch that showed what I said was macro interest. And that means that I saw there was some of that blood, small amount of blood staining down in that G10 area. And I also noted what I thought was--and then I looked at it under the stereomicroscope, and I thought it looked like a possible piece of tissue in that area.
MR. HARMON: Okay. And why was that of interest to you?
MR. SIMS: Well--
MR. SCHECK: Objection. Calls for speculation.
THE COURT: Overruled.
MR. SIMS: Well, because tissue is normally something that's produced by, for example, a fairly deep--a wound as opposed to just blood by itself.
MR. HARMON: And why was the notch area of interest to you?
MR. SIMS: Well, again, from my--I guess this is my training and just common sense and all that goes into it, but I started thinking about where blood--
THE COURT: Counsel, I think we've asked this question now four times.
MR. HARMON: I'm not sure we got an answer.
THE COURT: Yes, we did. We got an answer.
MR. HARMON: Mr. Sims--
THE COURT: You also have to trust the common sense of the jurors about how one takes gloves off and how one puts them on.
MR. HARMON: Okay. Mr. Sims, just to kind of summarize here where we are with the glove, could you show the jury where the stains are located that are consistent with Mr. Sims as one of the contributors? Would you--I mean Mr. Simpson. Mr. Simpson. Well, we don't know his type, you know.
THE COURT: All right.
MR. SCHECK: Well--
MR. HARMON: Could you show us where they are on the photo board?
MR. SIMS: On the--
MR. HARMON: On the photo board.
MR. SIMS: Oh, I'm sorry. I couldn't see it from here.
MR. HARMON: Oh, I'm sorry.
THE COURT: We may have to move that over here so all the jurors can see what you are talking about because it's pretty subtle what's there. And if you could, Mr. Fairtlough, could you move that up so 1492 and 165 aren't blocked by the podium? All right. Mr. Harmon.
MR. HARMON: Mr. Sims, could you just point out the three different areas that you found a mixture consistent with Mr. Simpson on the glove?
MR. SIMS: Okay. Again, I just want to review, make sure I've got those numbers correct. Yes. It's 10 up here. This is the one I was talking about. It's near the notch. It's actually down a little bit closer than the red shows, but there's a stain down in this area (Indicating). This was--9 was where I thought I saw the possible tissue and then 11 is on the outside of the glove to the side of the notch there down towards the wrist area and then 13 was along the actual stitching of that notch.
MR. HARMON: Okay. Now, while you're there--and I've got some photos if you need to have your recollection refreshed. But of those three stains that had 25 allele which could have been contributed by Mr. Simpson, but not Mr. Goldman, not Miss Brown, were any of those close to cut-out areas that were on that glove when you first saw it?
MR. SIMS: I did--the only--the only one that at all comes to mind to me would be this cut-out here (Indicating) is somewhat close to g--
MR. HARMON: You pointed to it. Could you relay it to one of the other markings on the board?
MR. SIMS: Yes. The mark--the cut-out here near G14. In other words, G14 is down in this area (Indicating). There's a cut-out above it that somewhat opposes it now. When it's right side out, it would somewhat impose this area on G10.
MR. HARMON: And the other two stains that had the 25 allele were not close to any areas that appeared to have been cut out?
MR. SIMS: I wouldn't describe them as being close.
MR. HARMON: Okay. Could you just tell the jury, when I say areas that were cut out, tell us what the glove looked like when you got it?
MR. SIMS: Well, when I got it, it was--it appeared to me that cut-outs had been made from the different areas, some of the different areas along the glove. In other words, I didn't know exactly who cut them out, but it appeared that there were some sort of squarish cut-outs made in different areas of the glove.
MR. HARMON: And were those consistent with having been sampled by a forensic scientist?
MR. SIMS: That's typical of what I would expect to see.
MR. HARMON: Okay. Thank you. I have no further questions. We can take a break.
THE COURT: All right.
MR. HARMON: I have more questions, but not before the break.
THE COURT: No, no. Ladies and gentlemen, we're going to take a 15-minute recess. Please remember my admonitions to you; don't discuss the case amongst yourselves, form any opinions about the case, conduct any deliberations or allow anybody to communicate with you. And we'll be in recess for 15.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Let's have the jurors, please.
(Brief pause.)
MR. HARMON: Your Honor, I do want to address the EAP on 117.
THE COURT: Hold them. What is the relevance of 117? It was not gone into on cross?
MR. HARMON: Well, 117 was gone into extensively on cross and this is part of the large picture on 117. As everybody knows now, EAP is in the red cells.
THE COURT: Refresh my recollection. What is 117?
MR. HARMON: 117 is the rear gate stain.
THE COURT: Got it.
MR. HARMON: It is one of the EDTA stains. We all know the significance of that. That is one of the stains that wasn't collected until July 3rd. We all know that EAP is in the red cells, DNA is in the white cells, and the Defense contentions about 117 are that it is planted and that that is--remember this great chart that shows--
THE COURT: The amount of DNA?
MR. HARMON: --how much more DNA is in there? Well, that is just the white blood cells. The red blood cells in conventional serology and the EAP is right on that electrophoretogram. Well, Mr. Simpson is EAP type BA and that is not what 117 typed to. It typed to, as I recall, a B inconclusive or a B question mark. And what Mr. Sims, if I am allowed to do--and this is part of the large picture in discussing and demonstrating irrefutably that 117 wasn't planted, the fact that Mr. Simpson's EAP type is changed, just like Miss Brown's did, from a BA to a B, the fact that the conventional serology results by Mr. Matheson show no PGM activity from 117. And Mr. Sims is going to discuss PGM literature. PGM is a much more persistent marker than EAP is. These all demonstrate totally conclusively that that stain, 117, was out there for a long period of time. That we will be discussing scientific literature about PGM to show how it persists in spite of a large number of environmental insults. And the EAP electrophoretogram is right on there and if you recall back, this was back some weeks ago, the Defense made a big deal on one of these exhibits. They wanted us to cut off 117. This is weeks and weeks ago. I can't even remember which exhibit that was. Because they just don't want the jury to see that Mr. Simpson's EAP type went from a BA to a B inconclusive, just like Nicole Brown Simpson's did on the fingernail clippings. So this is a small piece of the big picture that shows that 117 was out there for some period of time. It is consistent with having been out there since June 13th.
(Brief pause.)
MR. HARMON: Your Honor, I need to supplement that a little bit, too. That same electrophoretogram has 115 and 116 on there. 115, 116 and 117 all produced the same conventional serology results. This BA looks like a B, looks like a degraded BA. It is a B inconclusive, very much like what Mr. Sims has described 84A and B are, no PGM activity. And let's not forget what we know about 115. And I will bring that up again at the close of the business today, too, your Honor. We have got a photograph taken on June 13th--
THE COURT: No, let's not go into that.
MR. HARMON: That is all part of the picture.
THE COURT: We are only talking about whether or not I'm going to allow you on redirect to go back into 117. And it had been my recollection, erroneously, that that had not been covered in one--117 had not been covered in the cross-examination.
MR. SCHECK: May I be heard?
THE COURT: And I stand corrected.
MR. SCHECK: May I be heard?
THE COURT: Yes.
MR. SCHECK: It was only covered with respect to the DNA concentration and what--first of all, the--
THE COURT: What is the inference that you are going to argue from that?
MR. SCHECK: The inference is with respect to the amount of DNA in that stain and that is it. What Mr. Harmon is trying to do--
THE COURT: Wait. The inference that you are going to argue from that is that it is different than the DNA on 47, 48, 49, 50 and 52?
MR. SCHECK: The amounts.
THE COURT: Yes.
MR. SCHECK: Yes, and that is what the chart depicts.
THE COURT: All right.
MR. SCHECK: Mr. Harmon has made a series--
THE COURT: What argument are you going to make from that point? What is the relevance to it?
MR. SCHECK: It has to do with the relative age of the drops, there is no question about that, but he has made two different arguments here. And the first is--and let's sort them through, because it is outside the scope of the cross in this regard. The first is, that there is--the 117 is typed inconclusive. It has nothing to do with B, it is just period inconclusive by Matheson. So it seems to me, umm, that it is improper and outside the scope certainly cross-examination to be raising 117 in the context of the fingernail description at this point in time when that wasn't gone into and again it is an inconclusive. Mr. Harmon is talking about PGM now with respect to this stain and how that might relate to the age of the stains, and I think that that again is outside the scope of the cross-examination. But certainly, using 117 to go back into the issue of the appearance of--of a B when it wasn't called a B, it was an inconclusive, and to go back into the fingernail scrapings has nothing to do with the cross-examination on that. As to what he is saying he wants to do with this electrophoretogram on the conventional serology markers, I don't know. It sounds like it is outside the scope there, too. Umm--umm, and if, umm--I mean, that is about all I have to say about that, but plainly, it is beyond the scope with respect to what he is doing right now and that is discussion of the fingernail scrapings.
MR. HARMON: Red blood cells.
MR. SCHECK: We didn't go into that at all and it wasn't even gone into with Mr. Matheson, 117.
THE COURT: Well, the issue is 117 and the age of the brood drop.
MR. HARMON: That's right. Red blood cells, white blood cells, they are within the same cell and they want to--I mean, you talk about something being beyond the scope. We are talking about the same cell and they want to preclude me from talking about implications of red cell testing by saying we only talked about white blood cell testing, and I think that is clearly a silly proposition, your Honor, to confine me. We are talking about 117. We are talking about how long 117 was there. We are talking about whether it was planted. We are talking about the ambient environment that it was in, as opposed to all the things along the walkway in the house. That is what we are going to be talking about with this witness, your Honor, and that is all within the scope of that beautiful chart that they put up there. It is within the scope of that chart.
MR. SCHECK: The other answer to this, is that if they want to make some inferences about--they just had this witness testify that he disagrees with the call that Mr. Matheson made on the EAP B under the fingernails, that he wouldn't have called it a B. Now, what they are tying to do is have him testify about these test results in another context with respect to the gate when he is not the person that performed these tests, has express reservations about the results of these tests. He is the wrong witness. If they want to call a witness to testify about this particular testing and lay a foundation for it in relation to the gate and how conventional markers can or cannot tell you anything about the age of the blood on the gate, then they can call a witness to testify to it, but it is outside the scope of the cross-examination and it is without foundation as to this witness as to these tests which he has disavowed. He wants them to start testifying about results which this witness has disavowed. He disagreed with the call on the fingernail scrapings and now he wants him to testify about the significance of the back gate which was called inconclusive, which ordinarily--in fact this witness has said that inconclusives he won't testify report the results.
THE COURT: Mr. Scheck, hold on. Mr. Harmon, your offer of proof is that you are going to ask Mr. Sims to testify to the durability of PGM markers in blood left at crime scenes?
MR. HARMON: Right. I mean, we are only at the point now we are talking about EAP, and so we haven't gotten beyond that with 117. You can look at this thing and it looks just like 84A and B and that is what Mr. Sims is going to say. The EAP result looks just like 84A and B. Now, if this is planted, unless somebody took Mr. Simpson's red blood cells from this stain, it gets much more complicated if that is--
THE COURT: No, no, no. Please don't launch off on the things that I'm not asking you about.
MR. HARMON: Well, we are--
THE COURT: I'm asking you are you making an offer of proof--
MR. HARMON: Yes, your Honor.
THE COURT: --that you are then going to go into the durability of the PGM marker?
MR. HARMON: Right, and the fact that there was no PGM activity in these stains.
THE COURT: That is going to tell me that it has been out there for a long time?
MR. HARMON: Yes, your Honor, 84A and B.
THE COURT: All right.
MR. SCHECK: My objection is to if he is restricting it that way, that is one thing, although I still think it is outside the scope, but I don't want him doing this with respect to the fingernail scrapings in this context because I didn't go into it in that context on cross-examination and it is going to open up a whole can of worms that--
THE COURT: All right. I understand this argument to be in the context of 117, the stain at the gate.
MR. HARMON: 115. They are all in the same electrophoretogram, your Honor.
THE COURT: All right. The issue was raised regarding the age of the stain on the gate, I will allow limited access by the Prosecution on redirect to that issue. All right. I'm not willing to try the rest of the case on this.
MR. SCHECK: But I still have a remaining objection that he didn't even do these tests.
THE COURT: I understand that.
MR. SCHECK: And he is asking him to talk about inconclusive.
THE COURT: And I anticipate the foundation will be laid, but you did bring up the issue of the EAP.
MR. SCHECK: On the amount of DNA, that is fine, but this is an apples and oranges issue.
THE COURT: No. It is the issue that is relevant to the case.
MR. SCHECK: I have no quarrel with putting in such testimony through the competent witness with a proper foundation, but that is not--
THE COURT: All right. Let's have the jurors.
(Brief pause.)
THE COURT: Mr. Sims, why don't you come on up and save some time.
MR. SCHECK: Your Honor, while he is approaching, can we approach the bench and put on the record that other matter that you said I could put on the record?
THE COURT: Well, it is a little late at this point in time.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. The record should reflect we have been rejoined by all the members of our jury panel. Mr. Gary Sims is again on the witness stand undergoing redirect examination by Mr. Harmon. Mr. Harmon, you may continue.
MR. HARMON: Thank you, your Honor.
MR. HARMON: Do you have the electrophoretogram in front of you, Mr. Sims, that has got 84A a and B and 117 on it?
MR. SIMS: Yes, I have a photograph of the EAP results and also I have some photos of the PGM results.
MR. HARMON: And you have reviewed Mr. Sims' records for the testing on 117?
THE COURT: Mr. Matheson's.
MR. HARMON: I'm sorry, Mr. Matheson?
MR. SIMS: Yes, I have reviewed that.
MR. HARMON: What is your opinion about the EAP type of 117?
MR. SCHECK: Objection, no foundation.
THE COURT: Overruled.
MR. SIMS: Well, I--about the actual type, I think that is an inconclusive result, although I--yes, I think that is an inconclusive result. It looks similar to--
MR. SCHECK: Objection. Move to strike what he is going to say next.
THE COURT: Overruled. Overruled.
MR. SIMS: I would just say it is an inconclusive result.
MR. HARMON: Does it look similar to 84A and B?
MR. SCHECK: Objection.
THE COURT: Sustained.
MR. HARMON: How does it compare to 84A and B?
THE COURT: Sustained. I am not allowing that, counsel.
MR. HARMON: Excuse me?
THE COURT: I am not allowing that.
MR. HARMON: What bands do you see there?
MR. SIMS: On 117?
MR. HARMON: Yes.
MR. SIMS: I see what we would call the B and c bands. There is a possibility of some activity in the closer a band, but it is smeared in that area.
MR. HARMON: Okay. If the stain in item 117 is actually from the Defendant, Mr. Simpson, and his EAP type is a BA, how do you compare the fact that he is a BA with what you see in the electrophoretogram?
MR. SCHECK: Objection, no foundation.
THE COURT: Overruled.
MR. SIMS: I--I wouldn't exclude him based on this result if he is a BA.
MR. HARMON: Why not?
MR. SIMS: Well, because again I don't think the pattern is that clear that you could rule out a BA on that particular result.
MR. HARMON: Would it be fair to say that that stain has been there for some time simply based on the appearance of the bands?
MR. SCHECK: Objection, no foundation.
THE COURT: Sustained.
MR. HARMON: Are you familiar with the scientific literature on the degradation of the EAP marker?
MR. SIMS: Yes.
MR. HARMON: Are you familiar with how long it persists in different conditions?
MR. SIMS: Yes, I have some familiarity with that.
MR. HARMON: What can you say about the length of time the results that you see for 170, the electrophoretogram, that stain was in the position that it was removed from?
MR. SIMS: Well, with that EAP result by itself it would be difficult to give much of an estimate on that result alone.
MR. HARMON: Okay. We will talk about PGM in a little bit. Let's talk about substrate control processing. You have shown us some of the results which show no typing results on the DQ-Alpha strips that we saw earlier this afternoon?
MR. SIMS: Yes.
MR. HARMON: What I would like to do is address the processing of substrate controls in three areas: Sample mixing in the field, cells from investigators or lab personnel contamination, or in-lab contamination via amplified PCR product, commonly known as PCR product carry-over, okay?
MR. SIMS: Okay.
MR. HARMON: Do you agree that the presence of contaminant is often readily apparent?
MR. SIMS: Yes.
MR. HARMON: And why is that?
MR. SIMS: Because it shows itself, for example, where it comes through in your control sample or you may see a lot of additional bands--not bands, but dots in the sample that shouldn't have additional dots.
MR. HARMON: And if so, do you believe that appropriate controls should be used that would indicate those situations?
MR. SIMS: Yes, I do.
MR. HARMON: And do you believe that negative controls, including extraction reagent blanks and unstained substrate controls, when possible, should be run for each batch of DNA isolations?
MR. SIMS: Yes.
MR. HARMON: Do you also believe that the absence of a PCR product in these control reactions attest to the validity of the typing results derived from the evidence samples?
MR. SIMS: Yes, I do.
MR. HARMON: Have you relied on an article by Cecelia Beroldingen and Dr. Blake that we alluded to on direct examination?
MR. SIMS: That is the one in PCR technology, I believe.
MR. HARMON: That's correct. It is a chapter in a book. I believe it is chapter 17.
MR. SIMS: Yes, I have.
MR. HARMON: And do you recognize the statements I read to you as coming from that chapter that you relied on by Dr. Blake and Cecelia von Beroldingen?
MR. SIMS: That sounds like the chapter.
MR. HARMON: Now, Mr. Scheck asked you numerous questions about handling substrate controls. Do you recall that in the beginning of your direct examination?
MR. SIMS: Yes.
MR. HARMON: And do you recall him using the word "Handling in parallel" with the emphasis on the "Parallel"?
MR. SIMS: Yes.
MR. HARMON: Now, is there a difference between systematic handling of substrate controls in parallel in the evidence processing phase and processing those substrate controls in the same manner during the DNA typing proposes?
MR. SIMS: No. I think we are talking about the same basic process of alternating between stain and substrate control, stain and substrate control.
MR. HARMON: Now, is--do you have any scientific problem with not processing substrate controls in some instances along with the stains which they were collected alongside?
MR. SIMS: Now, specifically you would say the point where you are doing the amplifications?
MR. HARMON: Yes.
MR. SIMS: No.
MR. HARMON: Would you explain to the jury why in your opinion it is not appropriate not to have gotten substrate controls after you had typed some of the evidence stains?
MR. SIMS: Well, again, it is just a matter of you can--depending on what you are going to use the substrate controls to infer, as long as they are typed at some point, that tells you that through that process of collection and how they were initially handled in the laboratory that there is no--there is no problem with those processes. In other words, you didn't induce some contamination.
MR. HARMON: Are you missing anything by not processing for typing those substrate controls at the same time you typed the evidence stains?
MR. SIMS: No, I don't think so.
MR. HARMON: Okay. But let's revert back to the evidence processing in the very beginning when, for example, stains are processed for drying. Is it critical that substrate controls be processed in parallel or systematically alternation by an evidence stain and a substrate control?
MR. SIMS: Well, again, if you are going to use it as a control to that process, I would say yes to that. In other words, you do one and then another.
MR. HARMON: How is it a control in that context?
MR. SIMS: Because again, if anything is likely to show a type contamination, it is a sample that would be blank in the first place, so that all you have is contamination, so the substrate control is the key, because you are alternating those between the stains. And so if there was something from this stain contaminating it, it should then contaminate the substrate control.
MR. HARMON: Is it somewhat of a barrier?
MR. SIMS: Yes. I think it provides a little buffer between each one of your stains.
MR. HARMON: Okay. And if one also were to simply process one stain at a time, in addition to alternating between the evidence stain and the substrate control, would that provide an additional safeguard?
MR. SIMS: Yes, it would.
MR. HARMON: Against sample mix-up?
MR. SIMS: Yes, it would.
MR. HARMON: Okay. Now, let's--that is the first category, sample mix-up, either in collection or processing within the lab. Let's move to contamination by investigators or lab personnel. What is the role that a substrate control plays in that process?
MR. SIMS: The substrate control can play the role of showing that it was in an area that was nearby, for example, when we talked about all the sneezing and coughing, that that is an area that was nearby the stain, and so there is no evidence then if--assuming it comes up negative, there is no evidence then that that kind of contamination occurred on that particular sample.
MR. HARMON: Now, is there any scientific basis for the notion that a sneezing investigator, his sneezes will only go on evidence stains and not on substrate controls?
MR. SIMS: I have never heard of that.
MR. HARMON: Okay. Now, I know the FBI, they didn't do sneezing in their study, right?
MR. SIMS: That is my understanding.
MR. HARMON: Has anybody ever done any research on any aversion biological material might have to these blank substrate controls?
MR. SIMS: Well, we have studied swatches that are blank. I mean, after all, it is a blank swatch that is used--that starts out blank that is used to soak up a stain, so they certainly have an affinity for biological material, these swatches do.
MR. HARMON: Okay. And the third area that you discussed on direct examination, in-lab contamination PCR product carry-over. Are there two areas of controls or two different sets of controls in this context to safeguard against contamination?
MR. SIMS: Yes, there are.
MR. HARMON: What are they?
MR. SIMS: Well, again there are the controls that the substrate controls offer, and then there are also the controls that--such as the extraction reagent blank, the negative amplification control. Those are all important controls.
MR. HARMON: And if those controls all test negative, what does that tell you about in-lab contamination?
MR. SIMS: Well, it gives you confidence in your results because you don't--you would then see no evidence that you have in-lab contamination.
MR. HARMON: Okay. Are your tests designed to detect that if it exists?
MR. SIMS: Yes, they are. We are constantly monitoring for that situation. We are not just taking steps to avoid it, but we are using these controls as a way of monitoring it to see whether or not it may actually occur.
MR. HARMON: So in this context, if the evidence stain was--would be contaminated, there is no--you would expect the substrate control to be contaminated?
MR. SIMS: If you have a general contamination problem, then you would expect all those to be affected.
MR. HARMON: Okay. Is there any scientific reason you can think of why PCR product carry-over would avoid substrate controls or negative controls?
MR. SIMS: Is there any scientific reason I can think of? No. Again, you look at the totality of the results and--no, I think the answer to that question is just no, there is--no.
MR. HARMON: Mr. Scheck asked you about amplicons. Do you remember that?
MR. SIMS: Yes.
MR. HARMON: And you admitted that about a hundred units might be enough to produce a detectable or typeable contaminant?
MR. SIMS: Something like that, yes.
MR. HARMON: Now, do these amplicons, do they go out like in military units of a hundred-unit sizes when they go out?
MR. SCHECK: Objection, argumentative to the form.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Are these amplicons disciplined?
MR. SCHECK: Your Honor--
MR. SIMS: Not to my knowledge.
MR. SCHECK: Objection, motion to strike.
THE COURT: Overruled.
MR. HARMON: Are some of them--
THE COURT: Is there any molecular affinity that these things have, any bonding affinity that these things have?
MR. SIMS: The only time you have any affinity would be when they are all in a droplet, for example, but once they are dispersed, they are dispersed.
MR. HARMON: You could see a drop? It is big enough?
MR. SIMS: It would be a very--you could have a very small drop, but you could see that type of spot, yes. It is extremely small.
MR. HARMON: And if one of these 100 amplicons went out in the environment somewhere, that is the minimal--minimum detectable amount that you would have to have to produce a typeable result?
MR. SIMS: Approximately. That is an approximation.
MR. HARMON: But they would all have to end up on the same place?
MR. SIMS: Well, they would all have to end up in the same test-tube is what I think the point was.
MR. HARMON: Mr. Sims, I want to ask you a series of questions about your laboratory practices and about the presence of substrate controls and negative controls play a role. Okay?
MR. SIMS: Okay.
MR. SCHECK: I'm fearful that this is asked and answered, your Honor. I think we have been over this four times now.
THE COURT: Start again.
MR. HARMON: Let's assume all the substrate controls and negative controls produced no typing results, okay?
MR. SIMS: Okay.
MR. HARMON: Is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not change gloves between samples?
MR. SIMS: Yes.
MR. HARMON: Why is that?
MR. SIMS: Well, because again the controls serve as a way of checking out your system, and you look at the totality of the results and all those controls came out negative, then the inference would have to be that the stains were properly typed.
MR. HARMON: Okay. The same assumption. Is the subject of sample to sample cross-contamination adequately addressed if those controls produce no typing results, even if the forensic scientist does not change gloves between different stains from different sources of people?
MR. SCHECK: Your Honor, I do think we have been over this in every context.
THE COURT: Overruled. Not specifically.
MR. SCHECK: Then I would object to the form "Adequately addresses" as being vague.
THE COURT: Overruled.
MR. SIMS: Yes, it does adequately address that.
MR. HARMON: Okay. Same conditions. Is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not handle a reference sample in a different room than he handled the evidence stains?
MR. SIMS: Again, provided you have all those controls, I would say yes, it does adequately address that.
MR. HARMON: The same assumptions. Is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not handle evidence from separate crime scenes in--in a different room?
MR. SIMS: Yes.
MR. HARMON: And the same conditions. Is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not avoid handling multiple samples during this same period of time?
MR. SIMS: Yes.
MR. HARMON: Same assumption. Is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not completely prevent aerosol of any type?
MR. SIMS: Yes. Again, provided that you have got all those substrate controls working in a negative fashion, I would agree with that.
MR. HARMON: Tell us about aerosols and the substrate control and negative controls. Why would that be a safeguard?
MR. SIMS: Well, because an aerosol is a generally dispersed phenomenon and so you would expect--if there is contamination, you would expect it to land on the various items all--that were anywhere in a certain proximity.
MR. HARMON: If the controls all test negative, if the--is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not change paper between samples?
MR. SIMS: Yes.
MR. HARMON: Is the subject addressed even if the forensic scientist does not flame his tweezers or tools?
MR. SIMS: Yes.
MR. HARMON: Is the subject addressed even if the forensic scientist doesn't straddle ink his lab notes?
MR. SIMS: Yes.
MR. HARMON: Now, you do straddle ink your lab notes, right?
MR. SIMS: Yes.
MR. HARMON: Now, you end up going back into the laboratory where DNA is prepared at some point, right?
MR. SIMS: Yes, I remove a lab coat and go back in there, yes.
MR. HARMON: But it is the same hairdo?
MR. SIMS: Yes.
MR. HARMON: Same clothing?
MR. SIMS: Yes.
MR. HARMON: You don't straddle ink yourself before you go back there, do you?
MR. SIMS: No.
MR. HARMON: Do the substrate controls, negative controls, provide an adequate safeguard against you bringing DNA back in the lab that has been amplified, a PCR product?
MR. SIMS: Yes. Again, I think you are talking about the body of all those controls, yes.
MR. HARMON: And does the--assume all the controls are negative. Is the subject of sample to sample cross-contamination adequately addressed even if the forensic scientist does not have a laminar flow hood?
MR. SIMS: Yes.
MR. HARMON: Mr. Sims, what combination of events would have had to have occurred in order to allow cross-contamination between, let's say, Rockingham stain no. 12 and all of the Bundy walkway stains which would have allowed you to type the Bundy stains to give Rockingham types, types that were originally at Rockingham?
MR. SCHECK: Objection, calls for speculation.
THE COURT: Overruled.
MR. SIMS: In other words, this would be to get the same typing result on the Bundy stains, no results on the substrate controls and those Bundy stain results would be the same types as found on the Rockingham stains. Is that the hypothetical?
MR. HARMON: Right. And no results from Bundy.
MR. SIMS: And no results from--I'm sorry, no--
MR. HARMON: No results from what was there originally at Bundy?
MR. SIMS: Okay. Well, there would have to be a lot of things going on. The Bundy result would have to have totally degraded. The Bundy stains, I'm sorry, would have to have totally degraded and then somehow this contamination would have to sort of play a game of hopscotch and miss the substrate control and just hit on the stains.
MR. HARMON: What about your ability to still type the Rockingham stains?
MR. SIMS: Well, in other words, if all the DNA had gone from the Rockingham? I mean, it is not really conceivable to me that that would happen.
MR. HARMON: Okay. How likely are these things to have happened to all of the Bundy stains that you processed?
MR. SCHECK: I think this is without foundation. Goes beyond anything suggested on cross-examination.
THE COURT: Sustained.
MR. HARMON: Based on your review of the scientific literature, your examination of these stains, both the Rockingham and Bundy stains, your familiarity with the conventional serology results in this case, do you have an opinion about how likely only the Bundy walkway stains would be to be--were totally degraded, so degraded to produce no typing, that there was a transfer from the Rockingham stains--
THE COURT: Counsel, let me save you the trouble.
MR. HARMON: Sure.
THE COURT: I'm going to sustain the objection because I think it calls for speculation. The jury knows what the conditions are and the likelihood is for them to determine.
MR. HARMON: Mr. Sims, I want to ask you a series--a couple of hypotheticals and I will explain the question first and then I will provide the hypothetical information for you. Okay?
MR. SIMS: Okay.
MR. HARMON: The question which I will ask you after I provide the hypothetical information is even if all of the above happened, is it conceivable that cross-contamination occurred between the Defendant's reference sample and the--and the Bundy stains during the dry--the stain drying process? Okay. That is what the question will be.
MR. SCHECK: I'm going to object to the premise.
THE COURT: Rephrase the question--the problem is with the word "Conceivable."
MR. HARMON: Okay.
MR. HARMON: Well, let me give you the hypothetical and maybe it will be easier to do the question then. Let's assume that all the Bundy walkway stains that you saw, 47 through 52, absent or less 51, were seen at midnight by police officers, that the Rockingham stains were seen by police officers at 6:00 in the morning, that all of these stains were collected with their attached--or with their substrate controls on June 13th before the Defendant's reference sample was obtained. Furthermore, that all of these evidence stains from Bundy consist of multiple swatches ranging from four to seven individual swatches, that all of these stains were stored in plastic bags along with a plastic bag containing the substrate control, in individual coin envelopes, one coin envelope per stain. They were put in a truck in the month of June in Los Angeles where they stayed for several hours. They were ultimately taken back to the Los Angeles Police Department where they were processed for drying. The stains were processed one stain at a time, one coin envelope at a time, systematically alternating between the evidence stains and the substrate controls.
MR. SCHECK: Your Honor, I'm going to have a problem with this hypothetical as being incomplete given--since I already know--
THE COURT: Counsel, he hasn't even gotten close to finishing yet, so that objection is premature.
MR. SCHECK: All right. That is the problem.
THE COURT: You were at the systematic alternate processing of the evidence stains and substrate control.
MR. HARMON: During the drying process that the Defendant's reference sample was brought or during--before the drying process the Defendant's reference sample was brought into the room and kept in a plastic garbage bag where it remained overnight. The next morning the stains were dry, they were individually, one coin envelope at a time, put into bindles, a separate bindle for the evidence swatches, multiple swatches, a separate bindle for the substrate control, put back into the original coin envelopes, always only working on one coin envelope at a time. And furthermore, I will add the next proviso that ultimately all of the substrate controls tested negative.
MR. SIMS: Okay.
MR. HARMON: Okay. Is it possible that the Defendant's reference sample could have cross-contaminated any of the evidence, based on all of the those facts?
MR. SCHECK: Your Honor, I have multiple objections to this hypothetical.
THE COURT: Legal basis?
MR. SCHECK: Legal basis, it is without foundation and it doesn't address--it only goes up to a certain point in time. Many facts are left off.
THE COURT: Incomplete?
MR. SCHECK: Incomplete and--incomplete and not even--
THE COURT: Incomplete covers it, counsel.
MR. SCHECK: Incomplete.
THE COURT: All right. Overruled.
MR. SIMS: Well, as you have described that--
(Laughter.)
THE COURT: Excuse me. Just a second. This is not an audience participation function. The next time I hear a reaction from the audience, I am clearing the audience.
MR. SCHECK: Your Honor, in terms of incomplete, just to be clear about my objection--
THE COURT: I understand counsel.
MR. SCHECK: --is that incomplete--
THE COURT: Counsel, I'm not asking you to argue the objection.
MR. SCHECK: No, no, I'm not. I want to be clear that my objection is not just incomplete to the steps up to this point, but incomplete with respect to subsequent steps.
THE COURT: Counsel, I'm not asking you to argue the objection.
MR. SCHECK: I don't mean to argue it; I just wanted to make it clear.
THE COURT: Proceed.
MR. SIMS: As I understand the hypothetical, and one of the keys now is that the blood sample is in that--the reference sample is in a plastic bag, I don't see how that is possible.
MR. HARMON: And what--what effect, even though that alone I think you believe covers it, what effect of the substrate control not producing typeable results have on clearing up any question you might have?
MR. SIMS: Well, again, they address the cleanliness of the whole process, if you will. In other words, they are showing that where there is no DNA, no blood collected, that we don't get a typing result, so I think that is important.
MR. HARMON: Okay. Mr. Sims, I want to take that hypothetical and I'm going to start at the beginning again and then take it a little bit further. Okay?
MR. SIMS: Okay.
MR. SCHECK: Your Honor, all the way from the beginning again?
THE COURT: Is that redundant?
MR. HARMON: All the way from the beginning again or my question, your Honor?
THE COURT: Why don't you add your additional factors.
MR. HARMON: Sure.
MR. HARMON: Do you have everything fresh in mind? We got you right up to the reference sample in the plastic bag. The next morning all those swatches are put in coin envelopes.
MR. SIMS: Okay.
MR. HARMON: Put in separate bindles in coin envelopes.
MR. SIMS: Okay. So now they are in coin envelopes and then the plastic bag still contains the reference sample?
MR. HARMON: Right. And is there--these are two separate crime scene stains. Let me add a few other elements to it. From among the stains are two items from Bundy.
MR. SCHECK: Your Honor, I'm going to object at this point that it is woefully incomplete in terms of--
THE COURT: Premature, counsel. Overruled.
MR. HARMON: Two of the Bundy stains which were processed that are not along the walkway produce results which are not consistent with Mr. Simpson, but are consistent with Nicole Brown.
MR. SIMS: Okay.
MR. HARMON: They are processed systematically in the sequence of events.
MR. SCHECK: Objection, without foundation.
THE COURT: Overruled.
MR. HARMON: None of the substrate controls processed, either during the Rockingham processing or the Bundy processing, gave typing results. Okay?
MR. SIMS: Okay.
MR. HARMON: And furthermore, that the Bundy multiple swatch stains, number--numbers 47, 48, 50 and 52, were divided at some point after the processing, sent to separate labs, and concurring typing results were produced.
MR. SIMS: Okay.
MR. HARMON: Okay. Based on all of those factors, is it your opinion or what is your opinion about the possibility of cross-contamination occurring between the Rockingham samples and the Bundy sample?
MR. SCHECK: Your Honor, objection, incomplete, and I don't know--it is based on testimony--I have to make my objection at the side bar without--assumes facts not in evidence and is misleading, extremely misleading and incomplete.
THE COURT: Overruled.
MR. SCHECK: If you want me to explain--I should explain that.
THE COURT: Overruled.
MR. HARMON: Do you understand all the conditions in there, Mr. Sims?
MR. SIMS: Yes, I think I do.
MR. HARMON: Okay. Before--before you address the bottom line question there, what is the role of the stains from the Bundy walkway, the fact that they have--they consist of multiple swatches, some of them up to seven individual swatches that were collected, in providing an answer about cross-contamination between the Bundy stains and the Rockingham evidence stains?
MR. SCHECK: Objection, outside the scope of his own hypothetical, confusing, and inconsistent with the facts.
THE COURT: Overruled. Do you understand the question?
MR. SIMS: Yes, I do--I think I do, your Honor. Well, to me the multiplicity of the more than one swatch being around, that would mean that anything that would be contaminating, it would seem unlikely that it would contaminate--in other words, it is unlikely that you would see one contamination over here, but then you would get a different result from a swatch that was tested in a different laboratory. In other words, it seems--the consistency of the results between laboratories on these multiple swatches suggests to me that the results are valid.
MR. HARMON: Okay. And what about the--
MR. SCHECK: Move to strike the answer with respect to the premise of the hypothetical.
THE COURT: Overruled.
MR. SCHECK: He answered a different question.
THE COURT: Overruled.
MR. HARMON: Okay. Then let's get back to the role that those multiple swatches play, as well as all of the other factors that I have provided you in assessing the possibility that there was cross-contamination between any of the Bundy stains and the Rockingham stains.
MR. SIMS: Okay.
MR. SCHECK: That is not a question.
THE COURT: Sustained. Last question. Make it a good one.
MR. HARMON: Excuse me, your Honor?
THE COURT: This is your last question.
MR. HARMON: Based on the hypothetical information that I have provided to you, do you have, and if so what is your opinion about the--the possibility of cross-contamination between the Rockingham stains and the Bundy stains?
MR. SCHECK: Objection, vague as to which hypothetical when.
THE COURT: Overruled.
MR. SIMS: Yes. I would--my opinion would be that there is certainly no indication that such contamination occurred.
MR. HARMON: What indication would you look for?
MR. SCHECK: Oh, objection, asked and answered.
THE COURT: Sustained. All right. Ladies and gentlemen, we are going to take our recess for the evening at this time. And we are also going to take a brief break in the testimony of Mr. Sims. As you recollect, Mr. Sims is from out of town, has some personal matters that he needs to attend to and he will be back on the witness stand available I think Thursday or Friday; is that correct?
MR. SIMS: Thursday, your Honor.
THE COURT: Thursday. All right. Mr. Sims, I'm going to release you at this time, order you not to discuss your testimony with anybody other than the attorneys in the case. You are ordered to return here 8:45 on Thursday.
MR. SIMS: Okay.
THE COURT: All right. Thank you, sir. Ladies and gentlemen, please remember all my admonitions to you. Don't discuss the case among yourselves, form any opinions about the case, don't allow anybody to communicate with you, don't conduct any deliberations until the matter has been submitted to you. We will stand in recess until nine o'clock tomorrow morning. All right. We will be in recess.
(At 4:36 p.m. the jury was excused and the following proceedings were held in open court:)
THE COURT: All right. The record should reflect the jurors have withdrawn from the courtroom. Mr. Scheck, you wanted to add some additional commentary to your objection?
MR. SCHECK: Yes. If the Court follows, and I realize that these things are complicated at the end of the day, and I am trying to abide by the Court's rulings with respect to not making speaking objections and argument when the hypothetical questions are being asked, but the--the problem I have with Mr. Harmon's hypotheticals is that he asked one series of hypothetical questions based on what happened to the specimens into the evidence processing room and his whole--the long hypothetical was based on exposure to the reference sample. And he stopped the first hypothetical with the reference sample being in the plastic bag. Then he asked another hypothetical, continuing in that point where he talked about the swatches being in the bindles, leaving out the scraping them out of the test-tubes and the rest of it. And then asked a further question about exposure, cross-contamination, exposure to the reference tube. What he did not include in the hypothetical was the fact that the reference sample was brought into the evidence processing room, as he well knows from all his questions in the upcoming testimony of Mr. Yamauchi, poured out into a card at the same time as the other samples are there. Now, that is the most critical question in the hypothetical with respect to cross-contamination of the reference sample and so asking those two hypotheticals in that fashion and leaving out that critical step was extremely misleading because it didn't even include the most important fact and that was exposure to the reference sample. And that is what I wanted to add because I think that that was extremely misleading. Also, he is asking only one question here and that has to do with substrate control and he is asking the same question 25 times and so that was the basis of my objections to these hypotheticals in this fashion. The other thing that bothered me with respect to--I wanted to put on the record before, and that is I thought we had some understandings about what was going to be said and not said concerning the perfectly proper and in this case indispensable efforts of the Defense expert to sit there and provide documentation of the results.
THE COURT: Well, after you made a comment and the objection we didn't hear anything more about Dr. Blake.
MR. SCHECK: That is not true. We heard a lot more.
THE COURT: No, no. I was paying attention after you made that comment.
MR. SCHECK: What we heard was continued questions about, well, you took a look at that photograph there and Dr. Blake was there when that photograph was taken and Dr. Blake was there when that was reviewed, implying that he had--he said something to this witness with respect to whether the call was right or wrong when the witness had previously testified that he had nothing. And what upsets me, your Honor, is that this Prosecutor refused to turn over their pictures, their pictures of the strips and the D1S80 hybridizations to us on the grounds that we had Dr. Blake there taking the pictures. And it is perfectly evident that the reason that he refused to do that is that he wants to ask a question and a series of questions about Dr. Blake being there taking the pictures.
So I don't have available to me the pictures that this witness used and this witness took. Instead I have to use the pictures which he doesn't introduce on direct examination saying he showed him one dot-blot strip. I had to do that. Now, the pictures I have are my pictures, the ones that Dr. Blake took. And then on redirect examination this whole thing was completely planned and orchestrated to do indirectly what he can't do, which is trying to inject somehow that Dr. Blake approves of this witness' procedures and that his presence in that laboratory has some significance different than what we all know it has, which is simply to document. Now, I have no compunction whatsoever with respect to Dr. Blake being there, documenting this and everything else. What I think is improper, highly improperly, and it is exactly what this Prosecutor has been trying to do from beginning to end, is simply that Dr. Blake has ever told this witness anything about whether his results are right or wrong and that is what he is has been trying to do throughout all of this and this business with the pictures is real dirty pool because he refused to turn over those pictures which I am ordinarily entitled to in discovery. I wind up turning over all my pictures to him and I think that was wrong.
THE COURT: Mr. Harmon, will you address the first issue regarding hypothetical questions first.
MR. HARMON: This is really amusing, your Honor. On a day when we had to force our witness to assume something that was inconsistent with his opinion, the same day when I ask a hypothetical that is consistent with many of the facts, they want to force me to add something to the hypothetical. It is kind of like our board there and say you can't use those boards until we put what we want you to put up there. Umm, you know, I think if you just decided this fairly and equally you would realize that while this is painful, painful, painful to hear about substrate controls, they are the key to this case. And if my hypothetical is woefully deficient in light of the facts of this case, the jury is going to scoff at me and reject our suggestion that there is no problem here. I don't think we are too worried about that, your Honor. But clearly they want to ask hypotheticals that have nothing, absolutely nothing to do with this case, and they want to show the beautiful strips up there and show artifacts and then when we have hypotheticals that are based on the clear unmistakable facts, you really can't screw this up if you have substrate controls and they test clean, they want me to add a whole bunch of other things. Collin Yamauchi--we will cover all this when Collin comes in, but I think I should be able to address hypotheticals. Mine are at least based on some facts. We don't have to make a guy have an out-of-body experience to pretend he has an opinion other than he does. So I think I'm totally consistent with the case law, and I know it is painful for them, but sometimes the case law makes it painful for Defense attorneys, as well as Prosecutors. On those other points, I--
MR. SCHECK: Your Honor, before he gets to the other point--
THE COURT: No, no. No, no. Don't interrupt, Mr. Scheck, please.
MR. HARMON: On those other points, I didn't refuse to turn them over. I have always told you if you tell me to do something, I will do it because you've told me to. We argued this point. I wish I was as brilliant as they claim. You know, this was about four months ago that this was all planned out. It didn't happen that way. I think we have to, you know--parenthetically, does Dr. Blake approve? Well, you would have to be a fool when you look at their March 17th letter dumping him from the witness list to realize that the answer is of course he does. That is why is not on the witness list and that he will never get the blue chair treatment in this courtroom because he does approve. So I understand how painful it is at this point to have the door start closing, your Honor, but the law provides me an opportunity to do what I've done and I've done it and the record is clear on that point.
MR. SCHECK: Your Honor, he didn't answer the question that you asked him. You heard what I proposed. The question is in this hypothetical that he asked about exposure of the Defendant's reference sample to the specimens. In his second hypothetical he did not include the exposure of the Defendant's reference sample to the specimens. That was the only issue. As to the issue of substrate controls, that will obviously be dealt with, but that was the point of his hypothetical and he left out the most important fact in his hypothetical when he went through his continuation and that is what I consider improper and misleading. It is clear he did that and that whole long-winded answer about how all these things are so painful and all the rest of it, he doesn't answer the question.
MR. HARMON: Can I--
MR. SCHECK: He didn't do it. Did you do it?
MR. HARMON: No.
MR. SCHECK: Did you include it? No.
THE COURT: Wait, wait, counsel. You are under instructions not to address each other. Address your comments to the Court.
MR. SCHECK: No problem.
THE COURT: I haven't collected any money this week, have I? You guys are close. Mr. Harmon.
MR. HARMON: There is a simple reason. Collin Yamauchi hasn't testified yet. When he testifies and I lay the foundation for what really happened at that point, then I will be glad to, or if I don't, then Mr. Scheck will be happy to, but having recently spent many hours with him, it is really not quite the way Mr. Scheck thinks it happened, so I will be happy to, when there is evidence, contrary to what they do about, you know, pretending that things are other than the way they really are, I will be happy to ask that hypothetical when there is a factual basis for it and we will probably start hitting on that tomorrow afternoon, your Honor. And then I will be happy--if Mr. Scheck wants to take mine and add to that, I will be happy to ask it on direct examination of Mr. Yamauchi for him, so we don't have this problem again, but the hypothetical is really just based on what has been presented in this case to date. We sure don't want to confuse the jury and have them think that they heard something that they didn't hear yet.
THE COURT: All right. Thank you, counsel. All right. The Court's ruling regarding the appropriateness of the hypothetical Mr. Harmon, I am concerned, however, about the inferences regarding Dr. Blake's participation. His presence is certainly something you can go into. However, any inference that he conducted testing or approves or disapproves of anything that was done is off--off limits.
MR. HARMON: Sure.
THE COURT: All right. We are in recess.
MR. HARMON: Your Honor, could I just make one last inquiry? Do we have any news on the gate stain?
THE COURT: No, no.
MR. HARMON: Nothing?
THE COURT: I'm sorry, stand corrected. Mr. Douglas, the discovery issue?
MR. DOUGLAS: Good afternoon, your Honor. Your Honor, over the weekend I had occasion to speak personally with Dr. Michael Baden and Dr. Barbara Wolf. I attempted to speak with Dr. Lee about this. He was on travel, although both of them had conversations with Dr. Lee. Doctors Baden and Wolf were present at the Bundy crime scene, your Honor, on June 24th and they were allowed into the crime scene on that occasion by Mr. Lewis brown who was also present. At that time they tell me that the crime scene had already been washed down. They tell me that they never visited the crime scene on June the 17th as may have been suggested. At no time on that occasion, your Honor, did they touch, handle or remove any stains related to the rear gate or items 115, 116 or 117. The following day, your Honor, on June the 25th, they returned to the--to the same location with Dr. Lee and again on that day they did not touch, handle or remove anything related to any stains related to the rear gate. They noted at that time that that rear gate had all kinds of powder from fingerprinting and they did not handle it. They object, your Honor, to any suggestions that they caused the removal of any stains from that gate and they played no role in doing anything like that. I'm informed, your Honor, that there were some notes that were prepared by Dr. Lee that wrote down that the visit had occurred on the 17th, but in fact Wolf and Baden had come on the 24th. Lee joined them Saturday, the 25th.
THE COURT: All right. So your representation to the Court is that none of these persons took any sample from that scene?
MR. DOUGLAS: Correct, your Honor.
THE COURT: All right.
MR. HARMON: Does that include Dr. Lee? That wasn't clear.
MR. DOUGLAS: Correct.
MR. HARMON: Okay. What I would like the Court to do is as I mentioned, things have gotten chopped up in this camera review. I would request the Court to review any notes to ensure that this is not something in there and then that is the end of it, if the Court can do that.
THE COURT: All right. I don't recollect any discussions regarding anything regarding any of the expert examinations of the Bundy crime scene.
MR. HARMON: Okay. So will the Court just take one look at it and then leave it at that?
THE COURT: I can tell you it is not there.
MR. HARMON: Thank you.
THE COURT: All right. We are in recess.
(At 4:50 P.M. an adjournment was taken until, Tuesday, May 23, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
plaintiff,)
vs.) no. Ba097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Monday, May 22, 1995
Volume 151 Pages 28537 through 28812, 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 151 pages 28537 - 28812
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Day date session page vol.
Monday May 22, 1995 A.M. 28537 151 P.M. 28663 151
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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 151 (Resumed) 28542bs (Resumed) 28671bs 28703rh
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ALPHABETICAL INDEX of witnesses
Witnesses direct cross redirect recross vol.
Sims, Gary 151 (Resumed) 28542bs (Resumed) 28671bs 28703rh
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
274 - photograph of 28731 151 6 DQ-Alpha polymarker strips-hybridization
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1165 - chart 28542 151 entitled "Defense hypothetical"
1166 - photograph of 28581 151 12 DQ-Alpha polymarker strips
1166-A - photograph of 28637 151 12 DQ-Alpha polymarker strips with 2 arrows
1166-B - photograph of 28635 151 12 DQ-Alpha polymarker strips with 2 green arrows
1167 - photograph of 28613 151 the console area of Bronco vehicle
1168 - photograph of 28645 151 11 DQ-Alpha polymarker strips of evidence collected at Bundy
1169 - 2-page document 28677 151 entitled "2-Person Genotype Combinations Which When Combined with O.J. Simpson's Genotype will Account for DQ-Alpha Alleles in Stain No. 303."
1170 - photograph of 28683 151 8 DQ-Alpha polymarker strips
1171 - chart drawn by 28699 151 Mr. Scheck