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: