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. All parties are again present. The Defendant is present with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Scheck, Mr. Blasier. The People are represented by Mr. Darden and Mr. Harmon. The jury is not present. All right. Deputy Magnera, let's have the jurors, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Miss Montgomery, would you come forward, please.
Renee Montgomery, 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, Miss Montgomery.
MS. MONTGOMERY: Good morning.
THE COURT: Miss Montgomery, you are reminded that you are still under oath. And Mr. Harmon, you may commence your redirect examination.
MR. HARMON: Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
REDIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Miss Montgomery, Mr. Blasier asked you some questions about how recently your laboratory implemented D1S80 yesterday. Do you recall that?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: And he also asked you a question about cellmark and I believe you said cellmark is not using the D1S80 marker. Do you recall that?
MS. MONTGOMERY: That's correct.
MR. HARMON: Are there a number of labs which are using the D1S80 marker currently?
MS. MONTGOMERY: Yes. There are, umm, both private and public laboratories that are using the D1S80 marker. Some of the laboratories are the Minnesota State laboratory, Dr. Ed Blake's laboratory, which is FSA. It is in northern California. The Orange County Crime Laboratory is using D1S80. AFIP, which is the Armed Forces Institute of Pathology, is using D1S80. Did I state Minnesota crime lab.
MR. HARMON: Yes?
MS. MONTGOMERY: Laboratory?
MR. HARMON: And others?
MS. MONTGOMERY: Oh, yes, and there are other laboratories that are using it.
MR. HARMON: Now, yesterday with Mr. Blasier's examination of you, you realize that many of the exhibits that were projected up there are computer scan photos that were taken by Dr. Blake, do you not?
MS. MONTGOMERY: Yes.
MR. HARMON: Do those photos accurately represent the data which is on the original gel from which you produced your results?
MS. MONTGOMERY: No. As I stated yesterday, it is best to see the actual duplicate copy, the blue copy, to see what bands are present.
MR. HARMON: And using scan photos projected on the elmo up on this screen to show or to attempt to demonstrate that something is not there, do you feel that is a scientifically reliable way to determine whether something is on the original gel?
THE COURT: Excuse me, counsel. That misstates the application.
MR. HARMON: Pardon me, your Honor?
THE COURT: That misstates. They were computer--they are coming--computer-generated photographs coming off a hard drive; not from the elmo.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: I'm sorry, your Honor. Our computer expert has--
THE COURT: Whispered in your ear.
MR. HARMON: --straightened me out on that.
MR. BLASIER: I also object. It is argumentative.
THE COURT: Rephrase the question.
MR. HARMON: Do those--those computer scanned photos which were projected up on the screen, do they in any way accurately reflect what was not--what you saw on the original gel when they are used to demonstrate that something is not on the original gel?
MS. MONTGOMERY: Well, no. You lose some of the sensitivity. It is good just for a guide to give you some bearing on what is on the gel, but you actually need to see the gel yourself and to view that gel.
MR. HARMON: Okay. Mr. Blasier also put up on the screen analytical gel 184 which--where there was--remember the discussion about what you described as an artifact in between lanes for the other substrate control and an extraction blank? Do you recall that?
MS. MONTGOMERY: Yes.
MR. HARMON: Okay. And just to reflect back, the purpose of a substrate control is what?
MS. MONTGOMERY: It is to show you what the substrate around the stain in question is--what is occurring with that stain, so if there is any background, you need to be able to detect that background.
MR. HARMON: And is it important in that regard to look at the actual stain which is adjacent to the substrate control?
MS. MONTGOMERY: Yes, it is.
MR. HARMON: Now, let's assume--I know you say that is an artifact. I want you to imagine or assume that that was not an artifact, that that was really a band on a g184, even though it is between lanes. Even though you have described it, it is not a band, I want you to imagine that it is a band. Okay?
MS. MONTGOMERY: Okay.
MR. HARMON: Imagining that really was a band on the other substrate control, would it be important for you to compare this imaginary band with the actual stain for 50 to see if that imaginary band appears in the stain?
MS. MONTGOMERY: Well, yes, it would. If--let's hypothetically say that--
MR. BLASIER: Objection, objection. No foundation to say that you can see it in a stain.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Would it be important for you, imagining that that really was a band, even though that is not your opinion, to look at the typing results for the substrate control to see if that imaginary band appears there?
MR. BLASIER: Objection, vague as to what typing results.
THE COURT: Overruled.
MS. MONTGOMERY: Yes. One would want to look at the substrate control, and if banding did occur in the substrate control or if any DNA was detected there, then you would want to compare that to your evidence sample.
MR. HARMON: Okay. And do you recall what your typing results were for stain no. 50, one of those Bundy walk stains?
MS. MONTGOMERY: I will have to look at the report and my notes.
(Brief pause.)
MR. HARMON: While you are doing that, this imaginary band that you have already described was not there, where did it line up with respect to the ladder?
MR. BLASIER: Your Honor, object to the term "Imaginary" as being argumentative.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Imagining that that really was a band--
MS. MONTGOMERY: Yes.
MR. HARMON: --which I'm forcing you to do in this question, where did that band that I have asked you to imagine line up with?
MS. MONTGOMERY: Well, as--when Mr. Blasier was--excuse me--asking me we were--we saw that it was right in between the--I believe it was the 17, but let me look at my notes again to be sure of that.
(Brief pause.)
MS. MONTGOMERY: Mr. Harmon, what gel number was it, analytical gel number?
THE COURT: 184.
MR. HARMON: 184 is what I have written down.
MS. MONTGOMERY: Thank you.
(Brief pause.)
MS. MONTGOMERY: The evidence sample, DNA--I'm sorry, DNA 8, LAPD no. 50 from the Bundy crime scene, came back a 24, 25.
MR. HARMON: Okay. Could we project 275-C up, your Honor.
(Brief pause.)
MR. HARMON: Okay. Now, if you recall exhibit 275-C--do you want to take a look at it?
MR. BLASIER: Your Honor, I'm going to object. May we approach?
THE COURT: Overruled.
MR. HARMON: You can turn that off.
MR. HARMON: The bands in that stain were a 24, 25; is that true?
MS. MONTGOMERY: That's correct.
MR. HARMON: And nothing appeared in the area of the band that I have asked you to imagine appearing in 50 control; is that true?
MS. MONTGOMERY: That's correct.
MR. HARMON: And even if that band that I have asked you to imagine was on the other control, the fact that you see nothing on the other stain, what is the significance of that? And I'm asking you to imagine something that is contrary to your scientific opinion.
MS. MONTGOMERY: Well, the only banding pattern that was seen on the evidence sample that relates to that substrate control was a 24 band and a 25 band. There are no bands seen in any other region of that gel.
MR. HARMON: Okay. Let's move to the proficiency tests that were shown up on the screen by Mr. Blasier. Did you know that the correct answer to the quality control sample on that proficiency test was a 1.1, 3?
MS. MONTGOMERY: No, I did not. These are blind--or they are unknown to me. The results are unknown to me when I'm doing the analysis.
MR. HARMON: Did you make up the explanation of cross-hybridization for describing in your notes on the result sheet what you saw in that QC result?
MS. MONTGOMERY: No. Cross-hybridization is documented in a lot of the literature.
MR. HARMON: Is it listed in the manufacturer's user guide on page 6-5?
MS. MONTGOMERY: Yes. It is noted in the Roche user's guide.
MR. HARMON: Okay. Is it also mentioned in Dr. Blake's case work article, "The phenomenon of cross-hybridization" on page 704?
MS. MONTGOMERY: Dr. Blake does mention cross-hybridization in his 1992 case work paper. As far as the exact page, you would have to show me the document.
MR. HARMON: Okay. And moving to the test sample, and in your proficiency tests, when you wrote down what your opinion was when you saw the data, did you know that the correct answer was 1.2, 3?
MS. MONTGOMERY: No, I did not.
MR. HARMON: Mr. Blasier put up the gel where the three reference samples were initially run and you described that you were unable to type Mr. Simpson. Do you recall that yesterday?
MS. MONTGOMERY: Yes. Mr. Simpson's sample gave no results on the first amplification.
MR. HARMON: Okay. And your explanation for that was PCR inhibition. Do you recall that?
MS. MONTGOMERY: Correct.
MR. HARMON: Did you make up the explanation inhibition to explain that?
MS. MONTGOMERY: No, I did not.
MR. HARMON: Is the subject of inhibition, PCR inhibition mentioned, in the user guide by the manufacturer of these kits?
MS. MONTGOMERY: Yes, it is.
MR. HARMON: Is it also mentioned in Dr. Blake's case work article on page 719?
MS. MONTGOMERY: Yes. Dr. Blake does mention it. As far as the exact page, I would have to look at the document.
MR. HARMON: Is it also mentioned in the chapter 17 that was authored by Dr. Blake and Cecelia von Beroldinger on page 214, the subject of PCR inhibition?
MS. MONTGOMERY: Chapter 17 of the PCR technology book?
MR. HARMON: Yes.
MS. MONTGOMERY: Yes. It is addressed--inhibition is addressed in that article also.
MR. HARMON: Is it also addressed in the analytical chemical article that we have discussed authored by Dr. Blake and Becky Reynolds from Roche?
MS. MONTGOMERY: The article by Dr. Blake and Dr. Reynolds does mention inhibition also.
MR. HARMON: And is it also discussed in a chapter in the book, the Saferstein book the way we have described it, the authors of which are Dr. Blake and Dr. Sensabaugh, the subject of PCR inhibition?
MS. MONTGOMERY: Well, Saferstein has three books out, and in the third edition there is a chapter devoted--the chapter I believe you are referring to is devoted to PCR and there is mention of inhibition in that chapter.
MR. HARMON: And is there also an article by Dr. Blake--
THE COURT: Excuse me, counsel. Aren't we getting cumulative at this point?
MR. HARMON: It is my last article, your Honor.
THE COURT: All right. Last one.
MR. HARMON: Is the phenomenon documented by Dr. Blake and Mr. Haguchi or Dr. Haguchi, who is also from Roche, in a 1989 symposium paper that was published in the FBI symposium? Do you want to take a look at that one?
MS. MONTGOMERY: Yes. Could I take a look at that?
(Brief pause.)
MR. HARMON: The name of the article is "PCR inhibition in bloodstains."
(Brief pause.)
MS. MONTGOMERY: Yes, I recognize this article and it does discuss inhibition in this article, also.
MR. HARMON: And when faced with the prospect of PCR inhibition or the--or strike that. Do all of these articles also discuss what you do when you think there is PCR inhibition?
MS. MONTGOMERY: Yes. If inhibition occurs with the sample, and by inhibition you don't get any typing results, no product is obtained from that sample, analysis should be reconducted to try to get a result from that sample and then it could be reconducted by either diluting the sample--by diluting the sample out and then reamplifying it.
MR. HARMON: Okay. Okay. Is that what you did?
MS. MONTGOMERY: Yes, I did.
MR. HARMON: And in your opinion is that what any responsible forensic scientist would do?
MS. MONTGOMERY: Yes.
MR. HARMON: Now, did you see--remember Mr. Blasier showed those graphics, one about the glove and they purported to show the locations of stains where the 25 alleles were found. Do you recall that yesterday?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: Could we put that up on the screen, your Honor.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. This is Defense exhibit--
MR. FAIRTLOUGH: 1173-C.
THE COURT: All right.
MR. HARMON: Okay. Have you had a chance to look at that?
MS. MONTGOMERY: Yes.
MR. HARMON: And are you familiar with the sampling of the glove and the relationship of the stains that were typed by you and Mr. Sims that produced the--that detected the 25 allele?
MS. MONTGOMERY: Yes, I have reviewed some photographs.
MR. HARMON: Is that slide misleading in terms of the location of the stains?
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: How misleading is that slide with respect to showing where those stains actually are?
THE COURT: Counsel, counsel, rephrase the question.
MR. HARMON: Does that slide accurately reflect the location of the stains which produced the 25 allele?
MS. MONTGOMERY: Well, I think the best depiction would be to see the actual photograph, to see--
MR. BLASIER: Object, nonresponsive.
THE COURT: Overruled.
MR. HARMON: Why is that?
MS. MONTGOMERY: Because that is the actual documentation of this item.
MR. HARMON: Okay. Would you like to do that, please. We will put that board up. Just stay right where you are.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: 272-A and B, your Honor, are the exhibit numbers.
(Brief pause.)
MR. HARMON: Miss Montgomery, why don't you look at the slide again. From looking at that can you tell whether that is a right-hand glove or a left-hand glove?
MS. MONTGOMERY: I believe it could be either glove, depending on the orientation of the hand.
MR. HARMON: Okay. Would you look at 272-B, the photo board, and if you could take the pointer and show us where those stains really are on that right-hand glove, no. 9, from Bundy--from Rockingham.
MR. BLASIER: Objection, argumentative.
THE COURT: Sustained. Rephrase the question. And Mr. Harmon, how about if we take that board and put it on the main easel. You can put it on top of the results board.
MR. HARMON: Okay.
THE COURT: Because it is--the height of that exhibit in that location--
MR. HARMON: I just wanted to have them both together. That is fine.
THE COURT: All right.
(Brief pause.)
THE COURT: All right. Rephrase the question, please.
MR. HARMON: Okay. Would you point out to the jury where the stains which produced the 25 allele are?
MS. MONTGOMERY: Okay.
MR. HARMON: Or where they were?
MS. MONTGOMERY: Once again, just by looking at my notes to get the exact item numbers, a 25 allele was detected on G10 and there was a 25 on--
MR. HARMON: Okay. Just, you know, because those are inside out gloves, two of them, and one is right side out, could you make it real clear where--what surface that is on and where it is. Just describe it in words, please.
MS. MONTGOMERY: Okay. G10 is the inside surface near this wrist notch and the results of G10 were a 25 allele and a weaker 25 allele.
MR. HARMON: Okay. Next stain.
MS. MONTGOMERY: There was also a 25 allele detected at G11 and G11 is the outside palmer surface of the glove, (Indicating). And what was detected here was a 24 allele and a weaker 25 and 18 alleles.
MR. HARMON: Okay.
MS. MONTGOMERY: On G13, (Indicating), which is also the outside surface of the glove, there was--near the notch area, there was a 24 allele detected and also weaker 25 and 18 alleles detected in this region, (Indicating).
MR. HARMON: Okay. Thanks, Miss Montgomery. You can go back and have your seat.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Mr. Blasier asked you about a problem you had with one of the glove gels. Do you recall that, with the ladder leaking?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: And your solution to that was to rerun the test; is that right?
MS. MONTGOMERY: Yes. Anytime I am not confident with the result or if there is any question in the results, I will do a reanalysis on those samples.
MR. HARMON: Okay. In fact, did you get the same answers when you reran that gel that you did on the gel where the ladder leaked into the lane?
MS. MONTGOMERY: Yes. For the evidence samples and the controls I obtained the same results.
MR. HARMON: And is that what a responsible forensic scientist would do when faced with that problem?
MS. MONTGOMERY: Well, I think any individual, when there is a question, needs to do reanalysis on samples.
MR. HARMON: And Mr. Blasier projected a G295 up there, the rear gate gel. Do you recall that yesterday?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: Okay. And in your opinion you described what was on there that he directed your attention to as not a problem; is that true?
MS. MONTGOMERY: Could you state specifically what the problem he addressed on that gel was?
THE COURT: Miss Montgomery, why don't you pull the microphone closer.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Sure.
(Brief pause.)
MR. HARMON: I don't really recall. We heard about a lot of problems yesterday.
MR. HARMON: Do you recall that there was a problem, perhaps a band, a line of bands that went all the way across the gel or a line of shadows that went across the gel?
MS. MONTGOMERY: Well, I will look at that gel and see if that is the one that had the silver smearing across the bottom region.
(Brief pause.)
MS. MONTGOMERY: This is a beautiful gel. I don't know what problem could have been mentioned on this.
MR. HARMON: If there had been a problem, could any responsible forensic scientist have rerun it?
MS. MONTGOMERY: Yes. If a problem was detected, the gel should be rerun.
MR. HARMON: Okay. But you saw no reason to do that in this case; is that correct?
MS. MONTGOMERY: That's correct.
MR. HARMON: There was a lot of discussion yesterday about terms that you've used to communicate data that you saw; a hint, a trace, possible trace. Do you recall those discussions?
MS. MONTGOMERY: Yes.
MR. HARMON: Do the words that you used to try to communicate or convey the data, do they somehow change the data?
MS. MONTGOMERY: No, they don't.
MR. HARMON: Okay. So the data is what you have shown this jury; is that correct?
MS. MONTGOMERY: That's correct.
MR. HARMON: And the words are words you have used to try to express that so that they can appreciate it?
MS. MONTGOMERY: Correct.
MR. HARMON: Mr. Blasier asked you some words about examiner bias yesterday or some questions about examiner bias. Do you recall that?
MS. MONTGOMERY: Yes, I do.
MR. HARMON: I want to you ask you a question about examiner bias. Can you make a 24, 25 result look like a 18 by wishful thinking?
MS. MONTGOMERY: No, you can't.
MR. HARMON: Did anything arise in the course of Mr. Blasier's questioning of you that in any way undermines the results that you and Mr. Sims have presented to this jury?
MS. MONTGOMERY: No, there was nothing.
MR. HARMON: If a responsible forensic scientist had questions about the results you have presented, could she have performed retesting to address the question scientifically?
MS. MONTGOMERY: Yes. Anytime there is a question, reanalysis can be done on these samples. The ones where there were questions, reanalysis was done.
MR. HARMON: And could that reanalysis be done using PCR product that you conserve?
MS. MONTGOMERY: Yes.
MR. HARMON: Could it be done using sample swatches that you preserve?
MS. MONTGOMERY: Yes.
MR. HARMON: And could it be used on extracted DNA that you preserved in this case?
MS. MONTGOMERY: Yes, if any extracted DNA remains.
MR. HARMON: Okay. Thanks, Miss Montgomery.
THE COURT: All right. Mr. Blasier.
MR. BLASIER: Thank you, your Honor.
RECROSS-EXAMINATION BY MR. BLASIER
MR. BLASIER: Miss Montgomery, yesterday before lunch or at lunch I gave you every picture that I was going to use, didn't I?
MS. MONTGOMERY: Yes, you did.
MR. BLASIER: And I told you to look at them and compare them to your gels, didn't I?
MS. MONTGOMERY: Yes, you did.
MR. BLASIER: And I told you to look at them and compare to the original of your gels, not the blue film, right?
MS. MONTGOMERY: I don't recall if you specifically said to compare them to the originals or the copies.
MR. BLASIER: You didn't have the blue films, did you? They were in evidence?
MS. MONTGOMERY: No, I have--I made multiple copies of the blue film or of the gel, both for discovery purposes and also to retain copies within--for the case files.
MR. BLASIER: And I told you that I wanted you to look at them carefully to make sure that they were accurate pictures, that they accurately portrayed what you have on your film, didn't I?
MR. HARMON: Objection, that is irrelevant and calls for hearsay.
THE COURT: Overruled.
MS. MONTGOMERY: Yes, you asked me to look at those photos and see how they compared to the--to the gels I had or the copies.
MR. BLASIER: And you came back after lunch and you handed my pictures back to me and you said, "These are great, I wish we had some of these," didn't you?
MR. HARMON: Your Honor, that is hearsay, we are talking about the computer; not the photo.
THE COURT: Sustained.
MR. BLASIER: You came back and told me "These pictures are fine," didn't you?
MR. HARMON: Objection. It is irrelevant, calls for hearsay.
THE COURT: Overruled. That is not irrelevant.
MS. MONTGOMERY: Actually the photos, as far as showing the ladders and what the samples are and the strong band, they are excellent photos. As far as the weaker band, you need to actually see the gel to be able to capture the weaker gels and to be able to visualize them with your eyes.
MR. BLASIER: Move to strike as nonresponsive.
THE COURT: Overruled.
MR. BLASIER: Did you tell me any of that yesterday after lunch?
MS. MONTGOMERY: I told you parts of that, yes.
MR. BLASIER: And I told you that for any picture that I showed if you wanted to look at your original gel you should tell me so, right?
MS. MONTGOMERY: I--I don't recall if you said that or not.
MR. BLASIER: Didn't I say that in front of the jury here? Do you remember that?
MS. MONTGOMERY: I don't remember hearing it, but you may have said it.
MR. BLASIER: And the two films that we sent--we showed to the jury, were actually your films, not my pictures, correct?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, I want to show you--I want to show you 275-I which is the film with the dress samples on it, correct?
MR. HARMON: Objection, it is beyond the scope.
THE COURT: Overruled.
MS. MONTGOMERY: Okay.
MR. BLASIER: And I put a post-it on there with arrows above the two bands that you say are there at 24, correct?
MS. MONTGOMERY: That's correct.
MR. BLASIER: And let me show you the substrate control that Mr. Harmon asked you about which is 275-Q,. The band in the substrate control lane, have I put a post-it with an arrow above the band that you say isn't a band?
MR. HARMON: Objection, it is argumentative, convoluted, compound.
THE COURT: Overruled.
MS. MONTGOMERY: Well, the band that you say isn't a band, it is not a band, that is why I say it isn't a band. There is the one where we were talking about it yesterday where there is this little glitch in the gel, and if we could pass it around to the jury for them to look at, that would probably help.
MR. BLASIER: Do you see something there that looks like a band?
MS. MONTGOMERY: No, I don't. I see an artifact in between these two lanes.
MR. BLASIER: You see an artifact that looks like a band?
MS. MONTGOMERY: No, it does not look like a band.
MR. BLASIER: You can see something there that looks like a band and you can't see--what you can see on the dress is much fainter than what you see on the substrate control, correct?
MS. MONTGOMERY: No, that is incorrect. This is not a band and it is not a band because it is not a distinct banding pattern. It also falls within two lanes, and you could tell it is just a--you know, I don't know how else to describe it besides a blip. But if you could show to it the jury, I think that would help.
MR. BLASIER: Your Honor, I would like to put these on the elmo side-by-side, if we could.
THE COURT: All right.
(Brief pause.)
MR. BLASIER: Let's try one at a time. We can't fit them both on here. Let's try 275-Q, the substrate control first. Can you zoom in on it?
MS. MONTGOMERY: Would it be okay if I went to the podium?
THE COURT: Let's see how it projects first on the monitor.
MS. MONTGOMERY: That is upside down.
(Discussion held off the record between the Deputy District Attorneys.)
MR. BLASIER: All right. Can you see the area right below where my post-it says "No band"?
MS. MONTGOMERY: Yes, I do.
MR. BLASIER: That is what you are saying is not a band?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, let's look at the dress. Now, you see that area?
MS. MONTGOMERY: Yes, I do.
MR. BLASIER: You are calling those two bands, aren't you?
MS. MONTGOMERY: Excuse me.
MR. BLASIER: You interpreted those at being two bands there, didn't you?
MS. MONTGOMERY: Could you put it into real life instead of magnified?
(Brief pause.)
MS. MONTGOMERY: Yes, and--as I--when I was talking or when Mr. Harmon was presenting the gels, asking me to explain some of the fainter ones, I was saying that it is difficult to see those fainter bands from when--when they are projected up on the screen and you actually have to see them. It is just like slide presentations. Sometimes you lose some of the contrast when you put something on an overhead such as this.
MR. BLASIER: Your Honor, could we pass these to the jury?
THE COURT: Yes.
MR. BLASIER: No. 7?
MS. MONTGOMERY: Mr. Blasier, I think it is best--
THE COURT: There is no question pending.
(The exhibits were passed amongst the jurors.)
(Discussion held off the record between Defense counsel.)
MR. BLASIER: Your Honor, could we also have a white sheet of paper? It makes it a little easier to see.
THE COURT: No, they have their juror's notebooks.
MR. BLASIER: Okay.
(Brief pause.)
THE COURT: All right. Mr. Blasier, would you collect those items from Deputy Russell.
(Brief pause.)
THE COURT: All right. Thank you, counsel. Proceed.
MR. BLASIER: Miss Montgomery, these slides we just showed the jury, this is what you submitted to the Court as evidence of your testing, correct?
MS. MONTGOMERY: Do those have the evidence labels on them?
MR. BLASIER: I'm sorry?
MS. MONTGOMERY: Yes.
MR. BLASIER: Do they have the labels?
MS. MONTGOMERY: Yes, yes, those are the two.
MR. BLASIER: Now, cross-hybridization, I want to ask you a couple of questions about what Mr. Harmon asked you. Under what conditions do you get cross-hybridization so that you have a 1.3 dot show up?
MS. MONTGOMERY: Cross-hybridization can occur when there is a slight difference in the temperature of the stringency wash during the typing process of the DQ-Alpha. And I believe Dr. Cotton may have gone into this in a bit more detail, and if the temperature is slightly off, then you could get some of this weak dot, some of the weak dots occurring within the sample.
MR. BLASIER: There are controls built into the system so that you don't have temperatures too low, correct?
MS. MONTGOMERY: Well, we use--we calibrate our water bath and we check it with a thermometer, but sometimes if the water level is not high enough, then you could have a high subtle--or a slight difference in the temperature from between where the strips are and to--where the water level ends and then where the top of the tray is.
MR. BLASIER: What does the amplitype user's guys says with respect to cross-hybridization and when it can occur in terms of how much you have to test?
MS. MONTGOMERY: The user's manual--actually if I could refer to that.
MR. BLASIER: Let me refer you to section 6.2.3.
MS. MONTGOMERY: Yes. They talk about cross-hybridization and how it can occur when too much--when you develop your strips for too long or too much DNA is added into the--too much DNA is amplified and these are two other ways that cross-hybridization can occur.
MR. BLASIER: Does the manual say that it can occur when you develop your pictures properly and don't use too much DNA?
MS. MONTGOMERY: When you develop your pictures properly?
MR. BLASIER: Well, let's talk about one of those at a time?
MS. MONTGOMERY: If that is a question.
MR. BLASIER: I'm sorry. If you use the appropriate quantity of DNA you shouldn't get that, right?
MS. MONTGOMERY: No, that is not what this says.
MR. BLASIER: Well, why don't you read it to us.
MS. MONTGOMERY: Would you like me to read the whole paragraph to you.
MR. BLASIER: Yes, yes.
MS. MONTGOMERY: Okay. It is section 6.2.3 of the amplitype user's guide put out by Roche. There is a Cetus emblem because Cetus was the original company and it was bought out by Roche. And in the supporting material section 6-5, it talks about typing of large amounts of amplified DNA. It is a long paragraph.
MR. BLASIER: Go ahead.
MS. MONTGOMERY: "Amplification of samples containing high level of starting DNA," parenthetically, "Greater than 30 nanograms, generally results in large quantities of amplified DNA. Hybridization of very high concentrations of amplified DNA to the probe strips can sometimes lead to the detection of faint background signals much weaker than the C dot which is due to nonspecific, quote, `cross-hybridization' unquote. Cross-hybridization in this context refers to the weak interaction of a probe with a DQ-Alpha sequence allele that is not perfectly complimentary. This occurs more with the subtyping probes than with the typing probes because the subtyping probes detect differences between the alleles of only one or two bases." That is only halfway through. "The extent of cross-hybridization, even with very high levels of amplified DNA, is so low that any faint background signals only appear after lengthy color development. These nonspecific signals do not appear if the color development reaction is stopped with a degree of coloration of the specific dots appears to have reached a maximum."
MR. BLASIER: You can stop there if you like, unless you want to read the rest.
MS. MONTGOMERY: Yeah, I think we should read the rest.
MR. BLASIER: Okay.
MS. MONTGOMERY: "Some samples having very large quantities of amplified DNA require only five to ten minutes for maximum coloration." And our laboratory we develop between 20 and 30 minutes. "Development of color beyond this point, overdevelopment, can also lead to high strip background which decreases contrast." And that is one thing our laboratory--Dr. Blake has noted that we should stop our color development a little earlier than we do.
MR. BLASIER: Mr. Harmon told you to use Dr. Blake's name as many times as you could, didn't he?
MS. MONTGOMERY: He did not tell me to use Dr. Blake's name as many times.
MR. BLASIER: No, he didn't? So the manual tells you that you shouldn't get these dots if you develop your film the appropriate amount of time, doesn't it?
MS. MONTGOMERY: Well, it is in the film. What we are talking about are strips and those are the membranes, the thin membranes that have the dots on them, the 1 dot, the 2 dot, the 3 dot, so we are referring to strips, not film.
MR. BLASIER: The manual says that you only get that phenomena when you develop it for too long, correct?
MS. MONTGOMERY: The manual says that is one reason why you can get that.
MR. BLASIER: And it also says you have to have a high molecular weight of DNA before you see that phenomena, too, right?
MS. MONTGOMERY: No. It said that a high level of DNA and that is one way that cross-hybridization can occur.
MR. BLASIER: High level means a lot of DNA, doesn't it?
MS. MONTGOMERY: Yes, it does.
MR. BLASIER: And in the mixed samples in this case you had very low level of DNA, didn't you?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, does it describe any other way you get cross-hybridization in here, other than those two ways?
MS. MONTGOMERY: Not in that particular manual.
MR. BLASIER: And this is put out by the manufacturer of the kit?
MS. MONTGOMERY: That's correct.
(Discussion held off the record between Defense counsel.)
MR. BLASIER: Now, Dr. Blake's paper on case work analysis, would you agree that that says that you don't get cross-hybridization unless the temperature is too low; 54 degrees rather than 55?
MS. MONTGOMERY: Yes. I believe what the article is referring to is the 1992 publication by Dr. Blake and some other individual states that with changes in the temperature that cross-hybridization can occur.
MR. BLASIER: Now, let's assume hypothetically that you can get cross-hybridization at lower levels of DNA. Would you agree that what that results in giving you is 1.3 dots that really aren't there? I'm sorry, that don't represent any DNA?
MS. MONTGOMERY: Well, I think we need to remember that these dots are very faint and they are not interpreted as part of the--the results. These 1.3's are outlines or hints. If it is anything substantial, and there is a question, then reanalysis should be conducted.
MR. BLASIER: So these are the hints as opposed to the possible traces?
MS. MONTGOMERY: Well, you are bringing possible trace into the way the D1S80 is described. There--the hint as opposed to a trace. If it is trace, then you want to reexamine those samples.
MR. BLASIER: Now, when you got--when you have a trace, you want to reexamine them?
MS. MONTGOMERY: Yes. One should reexamine, if there is a trace amount.
(Brief pause.)
MR. BLASIER: Let me show you Defense 1172-A on the elmo.
MR. BLASIER: You recall, Miss Montgomery, that this is the second time that you ran these proficiency samples, correct?
MS. MONTGOMERY: (No audible response.)
MR. BLASIER: I'm sorry, that is the first time?
MS. MONTGOMERY: Yes, that is the first analysis.
MR. BLASIER: And you got one hint and one trace and you got a hint in QC 839 and a trace in the positive control, correct?
MS. MONTGOMERY: That's correct.
MR. BLASIER: So you did it again. Would that be the reason why you did it again?
MS. MONTGOMERY: No, I don't believe that is the reason why I did it again. I would need to see that whole case file to determine why subsequent analysis was done on this sample.
MR. BLASIER: All right. And you got nothing in your evidence sample, the actual proficiency sample, of any hints or traces, did you?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Now, let me show you also 1172-B?
THE COURT: Why don't you pull the microphone closer.
MS. MONTGOMERY: (Witness complies.)
MR. BLASIER: This is the second time you ran those same samples, isn't it?
MS. MONTGOMERY: That's correct.
MR. BLASIER: And you got two traces in your proficiency evidence samples, did you not--actually, you got three, didn't you?
MS. MONTGOMERY: Yes, that's true, but if you look at the control on that strip, the positive control, and the QC sample, there is nothing indicated there. And as far as the type that was reported out for these samples, umm--let's see, I can't--on sample 433, the reported result is a 1.2, 3. Those trace amounts in the--the trace amounts of cross-hybridization were not reported out. They weren't significant to the analysis.
MR. BLASIER: You characterize them as a trace when you read the dots, didn't you?
MS. MONTGOMERY: Yes, that is what I wrote.
MR. BLASIER: And you didn't redo that, did you?
MS. MONTGOMERY: No, I did not.
MR. BLASIER: And your quality control showed--I think you just indicated the quality controlled worked fine. That shows two hints, doesn't it?
MS. MONTGOMERY: Yes. Those are hints or just a small amount of color developing in those.
MR. BLASIER: And this is the proficiency test that you say you got the right answers?
MS. MONTGOMERY: Yes, I did.
MR. BLASIER: Could we have the glove board, please?
THE COURT: Yes. Boards.
MR. BLASIER: Well, actually maybe I can do without that. May we have 1173-C, please.
(Brief pause.)
MR. BLASIER: Miss Montgomery, yesterday when I showed you this, I asked you whether the stains G10, G11 and G13 were in the wrist area, didn't I?
MS. MONTGOMERY: I believe you did, yes.
MR. BLASIER: You said they were?
MS. MONTGOMERY: Yes. They are in the lower portion of the glove.
MR. BLASIER: In the wrist area, aren't they?
MS. MONTGOMERY: I believe that is correct.
MR. BLASIER: So where I have circled is the wrist area, isn't it?
MS. MONTGOMERY: Well, yes, that is the lower level of the glove. One would call it a wrist area.
MR. BLASIER: Okay. Now, the upper area of the glove, is it accurate to say that the various samples that were tested, that Mr. Simpson was excluded from any bloodstains on that glove up around the finger area where someone might grab the fingers to take the glove off?
MS. MONTGOMERY: Yes. There were areas in the finger region that were tested and there was no 25 allele detected in those samples.
MR. BLASIER: And there was no--Mr. Simpson was excluded from any sample in the palm area where someone's finger might make contact if they were holding it with the other hand?
MR. HARMON: Assumes, facts not in evidence, that they were all tested, your Honor.
THE COURT: Sustained.
MR. BLASIER: You tested a large number of samples from that glove, didn't you?
MR. HARMON: Objection. That is vague.
THE COURT: Overruled.
MS. MONTGOMERY: Gary Sims examined the glove and I guess I should--I should note that for G11 it was near the wrist notch, it was termed the outside palmer surface. And as I stated, Mr. Sims looked at all these samples and extracted them and then I analyzed them for D1S80.
MR. BLASIER: The reason for taking so many samples was to get a representative sample from different parts of the glove, correct?
MS. MONTGOMERY: That--that would be one reason to test various areas, yes.
MR. BLASIER: And various areas were tested and Mr. Simpson was excluded from everywhere on that glove except the wrist area, correct?
MS. MONTGOMERY: Well, as I stated, the wrist and near the wrist area.
MR. BLASIER: Miss Montgomery, have you ever taken a pair of leather gloves off by pulling them off at the wrist?
MR. HARMON: Objection. That is irrelevant.
THE COURT: Sustained.
MR. BLASIER: I have no further questions.
THE COURT: Mr. Harmon.
MR. HARMON: Can we keep that up there for a second?
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: We will come back to that in a second.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: I just have a couple questions, Miss Montgomery.
FURTHER REDIRECT EXAMINATION BY MR. HARMON
MR. HARMON: The cross-hybridization, when you were reading from the user guide there was something in there that I think need to be clarified. I believe the exact words were that this cross-hybridization occurs more with the subtyping probes?
MS. MONTGOMERY: Yes, that's correct.
MR. HARMON: Could you tell the jury, just so they understand what that means, what are the subtyping probes that were used in this case?
MS. MONTGOMERY: Well, the sub--subtyping probes, there are four nominal alleles, and this is the 1 allele, the 2 allele, the 3 allele and the 4 allele and then there are also subtypes and that is the 1.1 and the 1.3 and the 1.2, but the 1.2 has to be inferred because there is not a specific probe for that 1.2. So it is more common to see the cross-hybridization occurring with samples of the subtype.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Can we show 1173-C. Could you come back here, Miss Montgomery.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Okay. What I would like to--what I would like you to do is just so the jury can appreciate what this means and doesn't mean, you know the symbol for circle with a line through?
MS. MONTGOMERY: Yes.
MR. HARMON: Could you put that over the "No genotypes consistent with O.J.S.," please.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: And maybe we need--
MS. MONTGOMERY: Whoops, wrong way. Is that what you would like?
MR. HARMON: Yes. Let's make this line as thin as possible because they are kind of beefy there. Down below "Genotypes consistent with Defendant" if you can fit that in there.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Or just "Types consistent with Defendant."
MS. MONTGOMERY: (Witness complies.) this is like one of those boards.
MR. HARMON: Does that make you dizzy?
MS. MONTGOMERY: It is very difficult to write here.
(Brief pause.)
MS. MONTGOMERY: How does John Madden do this?
(Brief pause.)
MS. MONTGOMERY: Can you read that?
MR. HARMON: We will remember what that means. Could we capture that, your Honor, and I don't know if that is 1173-C(1) or I'm not sure how we number this one.
THE COURT: This one would be a Prosecution exhibit.
MR. HARMON: Okay. Okay. Miss Montgomery, we are done with that now.
THE CLERK: 276.
THE COURT: 276.
(Peo's 276 for id = photograph)
MR. HARMON: Could I have 275-C back up there? And this is my last few questions.
(Brief pause.)
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Miss Montgomery, while--this is the substrate control, the 50C, I'm pretty sure that is the one it is--or no, that's the--I'm sorry. The gel that had the other control on it, 275-Q.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Now, we just need to get back to a little basics here. You put the samples in all the way across the top and they move in one direction; is that right?
MS. MONTGOMERY: That's correct.
MR. HARMON: I believe one of the things you said is that whatever that is, it is not a band; is that right?
MS. MONTGOMERY: That's correct.
MR. HARMON: One of the reasons it is not a band is that it is not in a lane; is that true?
MS. MONTGOMERY: Right. That is one of the reasons. I think you will want to clear the telestrator. Yes, and it doesn't have the definition of a band.
MR. HARMON: Well, let's just focus on where it is. It is your opinion that it is not in one of those lanes; is that right?
MS. MONTGOMERY: That's correct.
MR. BLASIER: Objection, leading.
THE COURT: Overruled.
MR. HARMON: Now, can--these bands, they are DNA, they are started out--they are DNA material, right?
MS. MONTGOMERY: Correct.
MR. HARMON: I think we heard amplicons. There is amplicons in there?
MS. MONTGOMERY: Correct.
THE COURT: Pull the microphone closer, please.
MS. MONTGOMERY: (Witness complies.)
MR. HARMON: Now, can these things move sideways?
MS. MONTGOMERY: No. They are moving down through the gel.
MR. HARMON: I mean, suppose it was a band full of amplicons from a very willful person. Could they--and they wanted to turn left. Could they do that?
MS. MONTGOMERY: No, they do not have control over themselves.
MR. HARMON: They move in one direction?
MS. MONTGOMERY: That's correct.
MR. HARMON: And one direction only?
MS. MONTGOMERY: Correct.
MR. HARMON: Thanks. No further questions, your Honor.
THE COURT: Mr. Blasier.
MR. BLASIER: No further questions.
THE COURT: All right. Miss Montgomery, thank you very much. You are excused. All right. Let me see counsel without the court reporter, please.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: All right. Ladies and gentlemen, we are going to take a break in between witnesses, and I may need to talk to the lawyers for about half an hour, so I'm going to have you taken up to the larger lounge upstairs because I think you will be more comfortable up there. Let's stand in recess until the jury is clear and then we will come back and discuss the exhibits.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record. Mr. Harmon, Mr. Scheck, my understanding is the next witness is Collin Yamauchi, correct?
MR. SCHECK: That is correct.
THE COURT: All right. There are some issues we need to resolve before we get to Mr. Yamauchi?
MR. HARMON: Yes, your Honor.
MR. SCHECK: Yes.
THE COURT: All right. Mr. Harmon.
MR. SCHECK: May we take the board first?
THE COURT: No, let's take the other matter first.
(Brief pause.)
MR. HARMON: Me first, your Honor?
THE COURT: You are the one who told me it is going to take a bit, so--
MR. HARMON: Okay. Actually, it may not. Maybe we need to recap our off the record discussion yesterday, because I think it is helpful to see where we started and where we are going to end up with this, your Honor. Dr. Gerdes has been retained as a Defense expert in this case for some time. He has made laboratory visits to LAPD and I believe in January--in December he looked at many things in the lab. In January he photographed many records in the lab that were pursuant to court order and legitimate areas of inquiry by Dr. Gerdes. And as you know, we have consistently requested discovery material to be provided to us by Defense experts whom the Defense has actually put on their list, which one would assume means they have a reasonable expectation of calling them.
THE COURT: All right. Dr. Gerdes is on the witness list?
MR. HARMON: Dr. Gerdes, to my knowledge, has always been on the witness list in this case and I don't think we have ever gotten anything from him until, just coincidentally, before Mr. Yamauchi was about to hit the stand, we were given six pages on May 22nd. I'm not sure what today's date is, so that was just a couple of days ago. And it is a tabulation by Dr. Gerdes of things that he apparently reviewed and photographed and his opinions about them. I am well acquainted with Dr. Gerdes and I am well acquainted of the nature of his observations and evaluations of things, but it would appear that most of these things have nothing to do with Mr. Yamauchi; however, a significant number of them do. My ballpark count was 40 to 50 of these separate items relate to Mr. Yamauchi.
THE COURT: Why don't you give me an example of what these, quote-unquote, items are.
MR. HARMON: Well, you see, one of the problems is that I--this is what Dr. Gerdes has seen. This is his version of what he saw, but these are hybridization strips and sheets for PCR typing done by LAPD in general, and many of them, they are not all Mr. Yamauchi, because he is not the only one that does the PCR DQ-Alpha typing, so they are--these are--it is my understanding that Mr.--that Dr. Gerdes has only seen a hybridization sheet and the strips that are reflected in that hybridization that show the typing results and interpretations and the conclusion of the analyst. Umm, these--these items cover the time period--they go from `93 to `94, which is I think October, `93, to--through the latter part of `94, and, umm, some of them reflect actual--or yesterday, when the subject was broached, Mr. Scheck represented to you that these were LAPD's validation studies, and that is--that is hot necessarily true. That is partially--it is only partially true. And then I believe he corrected it to say, well, it is validation studies and case work. Umm, there are two issues here. Are these things relevant--are the ones that don't affect Mr. Yamauchi at all, where he didn't participate in any of the testing, are they relevant at all? And I'm assuming that absent some specific offer of proof, that they are not relevant, particularly when they are things that Mr. Yamauchi may not be familiar with. I mean, you can't make something relevant by asking a person about something they haven't done and then forcing them to look at it and say what do you think now, Mr. Yamauchi? There are a number of these things
That--as I said, 40 to 50 of these strips were sheets that do relate to Mr. Yamauchi. What the Court is not aware of is Mr. Yamauchi accepted his first PCR DQ-Alpha case in October of 1993. When I looked at this, I tried to segregate what Dr. Gerdes claims he saw with those dates because, you know, that could get relevant if given the right showing or offer of proof. And it would appear that about 18 of these strips--sheets, were after Mr. Yamauchi accepted his first case and 30 of them are before he accepted his first case. So--and I provide that to the Court to assist the Court. Once you hear whatever the offer of proof is, Mr. Scheck alluded to the fact that he was only going to ask a few general questions, and, you know, we might save a lot of time if he specifies what the questions are. There may not be any objection to this. We would welcome Dr. Gerdes coming in and testifying about this. I don't--if he couches his testimony correctly, it could be highly relevant, and we are anxious to hear that from him, but, umm, cross-examining Mr. Yamauchi about things that may or may not be relevant, most of which have nothing to do with him, I think absent some specific offer of proof, would be inappropriate. But Mr. Scheck assured you he only had a few questions. The problem with the few questions are, if there--the kind of questions that open it up to requiring us on redirect to go through each and every one of these, we will be happy to do that. Clearly Dr. Gerdes is misinformed on some of the things that he has said in here. I am not misinformed. This is what he does for a living. But I think absent some specific offer of proof, I time, the amount on cross that we spent with Renee Montgomery and her proficiency tests, so if we multiply 20 minutes by 40, we could spend days just showing that Dr. Gerdes' representation or his interpretation of this is at best misguided or misinformed. And we will be happy to do that. One of the problems is we don't--this requires a massive compilation of information. Some of these are actual cases and we are hot even sure that they are pending or not, so they may have to have some reduction to protect the names and identities of parties, so if it is a simple proper circumstances that Mr. Scheck--we are not trying to hide anything, but the way this gets done I think is important, and we will do whatever we can to present it fairly, but I think those are the caveats that absent some specific offer of proof at this point it may well be irrelevant. One could imagine Mr. Matheson being cross-examined by each and every one in a sexual serology case that he has ever done. Certainly that was not requested, umm, and I'm sure you would not to have allowed that, and absent a specific offer of proof, you shouldn't allow it in this case either, your Honor. I believe as well, if we are--if there is somebody--a specific offer of proof about that relates to this material, then I believe the Defense should provide us with the additional material that Dr. Gerdes refers to in the six pages that--that he provided us. Somehow we--we have been forced into the position, in terms of reciprocal discovery of this case, that Defense witnesses who are on the witness list for months and months are somehow shielded from providing material because that--I mean, there is a clear pattern to this--that somehow the Defense has been allowed to hold back material because they have convinced you in some way that it would effectively undermine their cross-examination of our witnesses. Or in the alternative, that in spite of the fact that they have expressed their clear intention to call these witnesses, that in--in in camera discussions it is--it is my impression that they have convinced you that even though they have put them on the list, which is a clear manifestation of their intent to call these people, that they have also alternatively told you, well, we are not sure that they are going to testify, because we want to see how well we do on cross-examination, and if we give the Prosecution the material that we intend to cross-examine their witnesses about, we will not be very effective in our cross-examination. And your Court orders clearly reject that proposition, but it is clear that is what is going on in this case, your Honor, so if there is an offer of proof, I would like to see the additional material that Dr. Gerdes has where he says "See analysis discussion for detailed explanation." We don't have that, and--and you know, honestly, if there is an offer of proof, we will need to have that. We had need time to review it so that we can have an intelligent discussion on--about the materials that have been withheld from us for much, much too long.
THE COURT: Mr. Scheck.
MR. SCHECK: Your Honor, I don't know why these things have to take so long. We had a discussion about this. The record is clear. First we got some validation studies. We were able to review those strips. Then in the middle of January we were able to look at more of these strips. These are Dr. Gerdes' notes. What they reflect in the chart, as Mr. Harmon indicated, is that there were these dot-blot strips. At LAPD they record what they see and what they don't see. This is just a chart where Dr. Gerdes indicates this is what is seen. I saw this. This is a contaminant or not a contaminant. Out of an abundance of caution it struck me that these notes should be turned over, it is not a final report, to avoid all this. Umm, the bottom line here is that Dr. Gerdes and Mr. Yamauchi sat there and went over these strips one by one. As I indicated to the Court yesterday, I have no intention of going through these strips one by one at all with Mr. Yamauchi. The only question I'm going to ask him and where I think it is relevant, is I'm going to ask him some general questions about whether or not he thinks the LAPD DNA laboratory has a problem with contamination. And we will hear what he has to say and we'll accept his answer, and it is not my intention to go through these strips with him one by one in terms of the reading, but I just thought out of an abundance of caution I should give them Dr. Gerdes' notes which I'm not entirely sure I am obligated to turn over, but I thought I might as well just to make it clear to them. And this is something that Dr. Gerdes went over with Mr. Yamauchi and explained that there were two different--obviously, as is coming out in the testimony--as to the meaning of dot intensity and a significance that has, whether they are contaminants or not. That is all. So I'm just going to ask him that one general question that I indicated to you before, or the questions along those lines, and I'm not going through each of these strips with him one by one, so I have no intention of doing that, so I think it saves us all the trouble.
THE COURT: Are you going to call Dr. Gerdes to go through them one by one?
MR. SCHECK: That is a different story. Yeah.
THE COURT: All right. Then isn't there--
MR. HARMON: You--
THE COURT: Excuse me, Mr. Harmon.
MR. HARMON: I'm sorry, I thought you were done.
THE COURT: Isn't there a comment in the six pages of notes that this is an analysis that has been prepared?
MR. SCHECK: Yes. In fact, I think the Court saw it. If the Court recalls, we were turned over some, but not all of these strips, so what we turned over to Mr. Harmon is an additional analysis of all the additional strips. Initially we got just some strips. And those comments refer to notes I think the Court has seen that are just general characterization summaries of what is on that chart, but not for everything that is on that chart, because he only had validation studies, and then in January he got additional case work and he hasn't done the additional summaries integrating everything else that he has. We will get that expeditiously. But all the data is there with respect to that. It is just a question of drafting them. But that is what those comments refer to, and I think if the Court goes back and looks at the note, you will see that it already has--
THE COURT: That has already been turned over to the Prosecution?
MR. SCHECK: Which part?
THE COURT: The analysis.
MR. SCHECK: The raw data has. The overall analysis of each of those hasn't been done yet. Do you see what I'm saying? In other words, he got some of the data and the comments that Mr. Harmon is referring to are his--not his final report, because it doesn't refer to all of the data, it only refers to part of the data. What we gave Mr. Harmon are all of the data, all of his calls. It is just a question of characterizing--adding up and summarizing. That is all. It is just a question of making charts. So--but the point is, is that, you know, he has been very busy. We will get--we are working with him on charts and we will get the charts, but none of this is going to be gone into with Mr. Yamauchi.
THE COURT: But there is no report?
MR. SCHECK: No, not--what--how do you define a report? Report would consist of the raw data and the charts? Is there a final report? No, we have indicated to you there is no final report. Was there an interim report based on part of the data? Yeah, we showed that to you.
THE COURT: Have you shown it to the Prosecution?
MR. SCHECK: Excuse me. Mr. Blasier handled--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: I'm sorry. Mr. Blasier told you about the interim report that was in draft form that wasn't a final report, that is what he tells me, not off all the data we gave him which we didn't have.
THE COURT: All right. Let's address the first issue first. Mr. Harmon, what is your comment on the offer of proof as to the questioning of Mr. Yamauchi?
MR. HARMON: Well, questioning is questioning. If--I have no objection--if that is all he is going to ask and we don't--and if he doesn't like the answer, you know, get in a huff and go on with other things or pursue it, that is fine, your Honor. And that is--when I heard that yesterday, I thought if we can get a commitment we can save a lot of time on this, but it has got to be a clear commitment, otherwise we have to talk about subject two as well and I'm anxious to do that as well. So can we move on to that and maybe Mr. Scheck can craft his questions and--
THE COURT: All right.
MR. HARMON: That is no problem, but subject two relates to that, your Honor. Can I talk about that?
THE COURT: Sure.
MR. SCHECK: I just want to indicate to the Court that the board discussion is going to take some time on one of the boards.
THE COURT: Well, we will see.
THE COURT: Do we have those available, by the way, the boards you are going to use with Mr. Yamauchi?
MR. HARMON: They were here. We left them here, I think. Yes, your Honor.
THE COURT: All right.
MR. HARMON: You know, I'm not one to be shocked when I hear what I knew was going on is really going on, but if I heard correctly, they have had discussions with you--I mean, it is clear by the sequence of the reciprocal discovery requests, and I alluded to this the other day with the cut-up notes that we got from Baden and Wolf and Lee, that there is a lot of doctoring going on. And it is clear that this whole manipulation, it is contrived, perverted attempt to withhold what the voters of this state afforded us, and that is the right to a fair trial.
THE COURT: Well, Mr. Harmon, let's not go down that road. We have had this discussion before.
MR. HARMON: We are down that road, your Honor.
THE COURT: Don't interrupt me, Mr. Harmon. The problem we have is that the people who crafted this did so inartfully and they left a lot of loopholes and I'm stuck with it, as are you.
MR. HARMON: Well, and they rely on judges to realize what it meant, your Honor, and what it didn't mean was that they would spend time on charts and say don't write a final report because, once do you that, we've got to turn it over, so let's just take time at 150 bucks an hour making up charts and things and so when you walk into court make sure your report is only dated the day before you walk into court so we can justify withholding it. But I heard Mr. Scheck say that you have reviewed some notes.
THE COURT: No, I haven't reviewed notes. I have been told about notes.
MR. HARMON: Well, I haven't been told about any notes, none of us have, and somehow Dr. Gerdes said, "See analysis discussion for detailed explanation." It doesn't say "The one I haven't written yet." It doesn't say "The informal one." It doesn't say "The casual one." It says, "See it" and we haven't seen it. This is all we saw. It was dated May 22nd and this is the tip of the iceberg. This is going to happen over and over again because we don't have anything from the Defense except cut-up notes. That is all we have. And so I think we need to call a time out to the proceedings, your Honor, respectfully, and review all of this material, because we were entitled to have this before the trial began. We were entitled to consider it--
THE COURT: Mr. Harmon, Mr. Harmon, before we get off onto that discussion, if you recollect, I have issued an order regarding all of these expert's reports, ordering them to be disclosed as soon as they are available. I also gave counsel warning that I would be very wary of the subterfuge of telling an expert witness, out of their normal practice, not to write reports and I in fact cited the one case where I was able to find where counsel were sanctioned for that very procedure, so I am aware of that issue. If it come to pass that there are reports or that conclusions were reached and there was a deliberate manipulation of the process and an instruction to the witness not to prepare a report to avoid discovery, then those witnesses will not testify and that is going to be the sanction. That was an order that I made early this year.
MR. HARMON: Well, I think you are in a good position to say "Tell Gerdes have a nice life," but they have sandbagged us with it.
THE COURT: That is quite possible.
MR. HARMON: I think you heard enough today to do that.
THE COURT: That is quite possible.
MR. HARMON: I would be happy to see a Judge resort to that because it is totally within your judgment to do that, and I think what happened today may haunt them, and we will remind you at every turn--
THE COURT: It could--
MR. HARMON: --that clearly what they told you is they would rather spend time on their charts than writing a final report. He hasn't gotten any other data since January. I know he's a busy man, but he is not too busy to be making charts for them, but he is too busy to write his final report. Don't get me wrong. We would love to have these guys come in. We don't want faceless people's name being injected in here, but to deny us this kind of material so that we can absorb it into our presentation really frustrates the whole purpose behind it, your Honor. So I think we have seen the tip of the iceberg and I'm anxious to see the bottom of it because it is much bigger than any of us appreciate.
MR. SCHECK: Your Honor, I have every confidence that you will have no problem with this. I'm really restraining myself, because these long diatribes and these tags on what witnesses are going to say or do and the quality of them, it is just irrelevant.
THE COURT: Mr. Scheck, Mr. Scheck--
MR. SCHECK: I understand the Court's concern.
THE COURT: I'm a little skeptical for this reason: I expressed this skepticism two months ago, that it is hard for me to believe that expert witnesses of the caliber that I have seen on the Defense witness list haven't prepared reports. It is hard to believe that counsel can proceed to make opening statements and make certain representations as to what is coming in the Defense case without having reports to base those statements on. I'm just telling you I'm a little skeptical.
MR. SCHECK: I understand. I understand what the Court--but we've had meetings with the Court about it, we will explain it, and I think that you will be satisfied. I don't think you will have any problems with it at all, especially with respect to this, and in terms of Dr. Gerdes' data and the charts and what his testimony is going to be in his reports--
THE COURT: But these notes say, "See analysis."
MR. SCHECK: Yes, and we indicated exactly what that was, an analysis of validation studies. There was additional data that he saw in January after that was prepared which he has to integrate and which he hasn't done that. And obviously, given the Court's concern we will have him produce his integration posthaste, but I think it would be very clear, the essence, the notion of a report, we are talking about looking at dots on a strip and what you see is that there is a principal difference here between those people that believe that certain kind of manifestations on these strips represent contamination and those that say we can ignore it, and that is a considerable--that is the principal concern. I think the Court is going to see that coming out. It is no dig secret to anybody and it is no big secret to Mr. Yamauchi, because Dr. Gerdes went and said look at this, look at this, look at this. This is what I think. It is not a secret to Mr. Harmon.
THE COURT: Let's see the boards.
MR. SCHECK: The board that I think we should address first, your Honor, is one that concerns Dr. Lee's examination of the socks and I have some serious problems with this board for a few reasons: The principal reason is that what it depicts isn't true, umm, and first I will state the factual background and then I will state the legal objection.
(Brief pause.)
MR. SCHECK: As the Court recalls, the biggest problem that we've had in this case, and one of the most remarkable and unusual aspects of it, is that we are in the middle of trial before the Defense is even allowed to examine evidence, and there was a point where the Prosecution said that they wanted to send the socks out for EDTA testing to the FBI and we had been trying--they did not refuse to send the socks to Albany. And then as the Court I'm sure distinctly recalls, they said--the interjected, well, can we--they refused to send it to Albany because they were going to send it to the FBI, I believe, for testing on EDTA. And I said in our chambers conference, well, if we can fly Dr. Lee--if we can--can we see it in the morning before the courier takes it out to Washington? And you looked at the Prosecution and said, well, if they can do that, they can do that, and we managed to find Dr. Lee in Seattle at the American Academy of Forensic Sciences conferences and we called him at 1:00 in the morning and we flew him down at 6:00 in the morning and then indicated--went over to the LAPD in order to examine the socks and go over a list of items to be sent to Albany with Mr. Hodgman. And what occurred here is that--and Mr. Hodgman, I'm sure, will verify this. We were told that the courier was going to be flying out at a certain time and there was no--
THE COURT: Mr. Scheck, let's cut to the chase. What is inaccurate about this board?
MR. SCHECK: Well, what is inaccurate, in particular, and I am a witness to this, as is Mr. Blasier and Dr. Lee, and we are the only Defense representatives in the room, you see where it says, "Examines other sock, same gloves," that is not true. He changed his gloves between those. I was watching, Mr. Blasier was watching. Dr. Lee says he did that. That is not true. And just permit me a moment, but you have to--and then there is this business about no lab coat, et cetera. The reason I have to give you the factual background, and Mr. Hodgman will back me up, is we are sitting in the front lobby of the LAPD SID lab waiting to get our chance to see the sock, told that there is this deadline certain when the sock has to be whisked away from Dr. Lee and he can't examine it any more because the courier is going to take it to Quantico, Virginia. And we are waiting and waiting and waiting and waiting and there are big delays where Mr. Harmon is inside there, you know, waiting to make arrangements for to us look at the sock and we have brought our own microscope there. And then finally at a time when it would only, according to their time period, permit us something on the order of half hour to 40 minutes to look at the sock, we are allowed into the room. Mr. Hodgman will be my witness as to that, because we are asking, what's the delay, what's the delay, what's the delay, and he is saying, I don't know, I don't know, I don't know, let's talk about some other matters in the hallway. The reason that that bothers me is that if we had even bothered to ask for a lab coat it was our fear that these guys would take another twenty minutes to get the lab coat and you got 15 minutes to look at the sock. But putting a side the lab coat issue, the real question is he changed his gloves. It upsets me a great deal to even have that in there. That is going to be ultimately, when Dr. Lee testifies, an issue of credibility. Let me cut right to the legal issue. The legal issue, it seems to me, is the following: This board through this witness is not arguably--and this testimony that he didn't change his gloves, they claim, between the examination of both socks, is only relevant on the issue of whether or not there was any cross-contamination of the sock at this point in time or any contamination of the sock. I don't think that they contend that anything that Dr. Lee did to that sock contaminated or created any trace evidence problem or any chain of custody problem.
The Defense attack with respect to when blood got on the sock is all subsequent to this examination anyhow. So in terms of whatever probative value this testimony and this board has through this witness at this time, it is minimal, if any, because that is not the purpose for which this is being offered. The purpose for which this is being offered at this time is in anticipation that Dr. Lee will testify and Dr. Lee will testify about proper procedures for handling, examining items in a laboratory. And that--umm, that is their intention, to impeach him with his testimony when he comes in in advance of his testifying. Now, it seems to me that if they want to raise this factual issue, that is the time to raise it. It is not probative through this witness at this time to anticipate what another witness is going to testify to. And they are not offering it for anything with respect to the chain of custody or contamination with respect to the sock.
THE COURT: So are you raising the spectre that we are going to see both you and Mr. Blasier testify as Defense witnesses?
MR. SCHECK: Oh, what else can we do? They restrict our access to this. It is myself, Dr. Lee and Mr. Blasier who are sitting there looking at it, and believe me, I was watching this because I know what the issues are in this case and I know what proper procedures are and I was watching this like a hawk. So the only witness that can even begin to--I'm in the position where I'm going to have to have to start asking Mr. Yamauchi if he is testifying to this at this time, which has minimum probative value in terms of what the purpose of offering it at this time is, that the only Defense witnesses in the room are lawyers who are going to say this ain't true, so that is a problem. That is a 352 problem, it seems to me, and if this issue is to be visited, it seems to me that the appropriate place to visit it, is that they can ask Mr.--Dr. Lee on cross-examination when he testifies whether he changed gloves. They can call a rebuttal witness to dispute that and we could take it there and that is the appropriate time and place. To get into this now is an undue consumption of time, it is going to be confusing, it is at the wrong point in time in terms of its probative value, and it is going to require, you know, lawyers to be witnesses and to have the lawyer who was sitting right next to Dr. Lee doing this, cross-examine him about it, which is not what we would like to do. So it seems to me that this board and this area of testimony from this witness should be avoided at this time.
THE COURT: Mr. Harmon.
MR. HARMON: Mr. Scheck has a short memory. There were other non-lawyers there. I mean, Dr. Lee is not a lawyer, so he can testify about what he has got to say, but there were--I don't even remember all the people that were there. I have never seen so many people staring at two socks for as long a period of time as we did. It was an interesting session. There is a simple issue that this addresses, and Mr. Scheck skirted around it. One of the implications of all this heightened sense of awareness is they didn't have to do it then. They chose to do it then, and we allowed them to do it. You suggested it and we allowed them to do it. So--but if you take Mr. Scheck's comments at face value, it is--his comments suggest it is going to be sloppy if you don't have a lot of time, and that is clearly the attack they are going to make on Mr. Yamauchi, that he was sloppy because he was in a rush to either incriminate or exonerate, so there is a little having it both ways in those comments. There is a very basic legal issue involved in this. Mr. Scheck mentioned it. This event is part of the chain of custody of those socks. Those socks went to the FBI lab that day. And we don't want anybody undermining the clear unequivocal tests to show that there is no EDTA on those socks, and if there is any quibbling about it, Dr. Lee was there, he handled them, we want to be able to document what he did in case they want to try to put the spin that they have been spinning on our clear unequivocal testing on the socks for EDTA. That we are entitled to demonstrate this, just like we did with 47, 50 and 78. They took things, they are part of the chain of custody of those things, and they are clearly not irrelevant at this point in time. That is the primary reason that they will be presented. So to address Mr. Scheck's concern, Dr. Lee is a non-lawyer. There was a photographer there.
THE COURT: Whose photographs are these?
MR. HARMON: These were taken by somebody from LAPD. I don't remember which--
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: John Taggert. I mean, we had our photographer there because, you know, quite frankly, we get kind of tired of people saying that LAPD doesn't do things well when here is Henry Lee doing things just the way they do. Be careful, you know, you change gloves when you have to, and so here was a chance to show that the much anticipated Defense expert, he does things just the way they do. You be careful. Sometimes you touch things, sometimes you don't. And so that is why we took them, never dreaming that we would be having this intense discussion at this point. You know, Dr. Lee manipulated the heck out of those socks. It is all standard practice and now it is documented. But the real problem that they have is it is an event in the chain of custody of those socks and you will see, when the FBI testimony from the EDTA comes in, how important it is for this jury to appreciate all the hands that those sock went through, just in case they try to put the spin on those unequivocal results that they have been struggling with for so long. So that is the simple proposition that we want to offer this for.
THE COURT: All right. Let me ask you about the conclusion that it makes saying, paren, "Same gloves, same gloves, same gloves" as to photographs 3, 5 and 6, starting from the top. Mr. Harmon, Mr. Scheck takes issue with that, as a matter of fact.
MR. HARMON: Okay. Well, you know, I am in those photos and I wish I could tell you I was paying attention to that. I wasn't. But Mr. Yamauchi and others who were on the photography side of the table, this is their observation, so it is another question of fact for the jury to decide, your Honor.
THE COURT: All right.
MR. HARMON: But that is--I did not notice that, because those socks were kind of boring to watch, and I wasn't paying attention to details, I was a little too close, but that is the representation from the criminalists on the other side of the table.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: Who were watching for that reason, so I can verify that again, because we certainly don't want to have that there if it is not true. But this board was prepared based on their observations, so I--I don't have a reason to doubt it, but if you would like me to confirm it, I would be happy to, your Honor.
THE COURT: No, but Mr.--Mr. Scheck indicates that it is his distinct recollection that that--that that did not occur, so to allow you--his argument is going to be that to allow you to have the, paren, "Same gloves" is actually argument and not just a statement of a description of what is there.
MR. HARMON: Well, you know, I mean--I have objected to all these argumentative things. No genotype consistent with O.J. Simpson. That is a conclusion that they want to have a lasting image of.
THE COURT: But that is an undisputed conclusion as to that glove, as to that area on the glove.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: This is a disputed issue.
MR. HARMON: I mean, we have to agree on facts. I mean, I guess we have done this over and over again. You have made us put mixture--are you going to make us put "Mixture" parenthesis up on our results when that is in the our scientific opinion? So I don't blame them, but you know, do they want to testify first and have you resolve it? I don't think there is any legal basis for that, your Honor.
THE COURT: No, I agree with you.
MR. HARMON: That is what the fact finder is entitled to decide, and if we made a mistake on that, they are entitled to think that we deceived them.
THE COURT: All right. If you want to use that, you can cover up the paren--.
MR. SCHECK: Your Honor, your Honor, your Honor--
THE COURT: Don't interrupt me. If you want to use that, you can cover up the paren "Same gloves."
MR. SCHECK: Your Honor, may I be heard in response? Just please be--I know that you have made one ruling. If you will just hear me on why this shouldn't be used at all. Just hear me.
THE COURT: I heard you.
MR. SCHECK: No, no, I mean hear me in response to what he just said, because there is something that I would like to emphasize that I think is relevant, if the Court would just hear me on that.
THE COURT: Make it quick.
MR. SCHECK: There is an indication there "No lab coat or hairnet," okay?
THE COURT: All right.
MR. SCHECK: Now, the point here is going to be that I am going to have to go into with this witness and we are going to have to start calling witness, maybe even the Court is going to have to start issuing statements with respect to what was permitted or not permitted. I mean, I love the way that Mr. Harmon says we allowed them to do it. You ordered it. You ordered it under circumstances that were extreme in the utmost. We are going to have to call Mr. Hodgman to the stand to talk about the delays in that front room while we were waiting to get in to examine this. I mean, that is what we are going to have--that is what we are going to have to get into if this is gone into, all those facts and circumstances, and it seems to me that those are of--of--there is a 352 problem if you want to go into all of that.
THE COURT: Oh, I agree. I agree.
MR. SCHECK: My other suggestion to the Court--my other suggestion to the Court--it is not that I am afraid of them testifying to what happened here at this particular point in time. My real suggestion to the Court is whether the issue as to whether or not the handling of these socks at this particular point in time has anything to do with EDTA issues. You know, that can be resolved when you hear that testimony. And I don't think it does. I think that the whole point of this board at this point in time is that other issue I'm talking about, is to try to do a preemptive impeachment of a witness that hasn't testified yet and that is where the 352 consideration comes in in terms of my having to get into this witness--through this witness all the facts and circumstances surrounding how that examination occurred and why no lab coat was accessible and why that had to be rushed, et cetera, and I'm going to have to ask all these questions of the witness in order to clear that up, some of which he may have knowledge of, some of which he may not, all of which are in good faith and all of which reflect our discussions, all of which I should be entitled to go into with this witness. Now, my suggestion--my suggestion is, that in terms of this area, in terms of the 352 problems, the consumption of time, what the Court would have to instruct the jury with respect to the circumstances of examination, is that if this is really going to be relevant to EDTA, then they can put them on--they can call a witness at another point in the case to testify to this aspect of the chain of custody or the details of this examination. That is my suggestion.
THE COURT: All right. But I think in any lawsuit, I think the plaintiff is entitled to present their case in the manner and order in which they determine. I'm not going to tell them when to call their witnesses--
MR. SCHECK: Well--
THE COURT: --other than my other rulings for discovery violations. All right. Noted. Thank you.
MS. CLARK: Can we take that up now, your Honor?
THE COURT: No, not yet. Let's see the other board.
(Brief pause.)
THE COURT: I take it we won't get to that board before noontime?
MR. HARMON: Oh, no, your Honor.
(Brief pause.)
MR. HARMON: This is the LAPD PCR board? Is there an objection to that?
MR. SCHECK: That is the only other board, yeah.
(Brief pause.)
MR. SCHECK: Now, your Honor, just as a matter of simple courtesy, and in keeping with our past practice, I have been asking Mr. Harmon for a day and a half for a printout of this board which I have received and we have all received on all previous boards, and the photographs that went into this board, and previously we had received all photographs, the boards were made up from photographs that we had received prior to this. Now, I don't believe that we received these photographs, but most importantly, you see the--all of these photographs, I should say. My particular problem has to do with the bottom rung here and that is "Piper tech product gel electrophoresis." Just in our experience taking two tours of the lab, the DNA lab, is that the first time that we took a tour with Mr. Yamauchi and we were taken into the room where they did the product gel electrophoresis, which incidentally is back in the Parker Center--back in piper tech. They go to Parker Center and they take the amplified PCR out and they bring it back into piper tech into I think they call it an equipment room. They changed the set-up of where they did the PCR product gels in a different place, you know, looks different, all cleaned up. And I think these photographs are of that new area where they did it, not of the original area that we first saw which I take it is where the actual PCR product gel electrophoresis analysis was done in this case.
THE COURT: Mr. Harmon.
(Discussion held off the record between the Deputy District Attorneys.)
MR. HARMON: I'm not sure what it is cleaned up with respect to, with respect to June 13th or 14th and 15th? I don't know how to address that. They have been there. They have taken their own pictures. They can put on their own pictures, if you allow Dr. Gerdes to testify, which I'm sure you won't. I don't know what to say, your Honor. Shall we have like amplicons marching around there?
THE COURT: Mr. Harmon, you know, as much as I enjoy your style, I don't know if you were watching the jury, but when you asked the question about can amplicons suddenly turn left, did you see the look on the juror's faces when you said that?
MR. HARMON: You know, I'm old enough to appreciate what I do, and I appreciate your observation, your Honor, and I understand. I appreciate the--
THE COURT: It has about the same effect sometimes.
MR. HARMON: But sometimes I'm--I'm speechless.
THE COURT: The objection is that it is not an accurate photo of the location where the testing took place. Any comments on that?
MR. HARMON: That that is not where the testing in this case took place?
THE COURT: That is how I understood the objection.
MR. HARMON: We think that it is. If it is wrong, then--
MR. SCHECK: It is wrong.
MR. HARMON: --I would be happy--
MR. SCHECK: He should talk to his witness.
MR. HARMON: I make mistakes all the time, your Honor. If that is not the right photograph, umm, I would be happy to put the right one up there. But we have been there, we have walked through it.
THE COURT: Has your witness seen this and told you this is the same place?
MR. HARMON: That is him in the photos.
MR. SCHECK: No, no, bottom photos.
THE COURT: Bottom one.
MR. HARMON: We went around with him. I was with him that day.
THE COURT: If you are offering that it is accurate--
MR. SCHECK: Let me just try to help him out a little bit. The first time we went through it was in a different location in a different place in a different set-up within that room. The second time that we took the tour they said we have changed the area that they did it, they gave it a wider space, they cleaned it up, they put it in a different place. My strong suspicion is it is in the second location, not the first location where he actually did the product gel in this case. It is a simple enough matter to ask his own witness what that is a picture of. I'm fairly confident--and certainly I have never seen these pictures before. I was supposed to see them, right?
THE COURT: Where is Mr. Yamauchi? All right. Well, I have to give the court reporter a break, so we will take a court reporter break and get him down here and have him take a look at the pictures, and hopefully we will get some time in in front of the jury this morning. All right. We will take 15.
(Recess.)
THE COURT: Back on the record in the Simpson matter. Do we need Mr. Cochran? Mr. Scheck?
MR. SCHECK: I'm sorry?
THE COURT: I see Mr. Cochran is not here. Are you ready to proceed?
MR. SCHECK: Yes.
THE COURT: Here is Mr. Shapiro. Is Mr. Cochran outside, Mr. Shapiro?
MR. SHAPIRO: Yes, your Honor. Do you need him?
THE COURT: I would like to start.
MR. SHAPIRO: We can start.
THE COURT: All right. Let's have the jurors, please.
(Brief pause.)
THE COURT: And Mr. Harmon, this is your witness?
MR. HARMON: Yes, your Honor.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Mr. Harmon, you may call your next witness.
MR. HARMON: Yes, your Honor. The Prosecution calls Collin Yamauchi.
Collin Yamauchi, called as a witness by the People, was sworn and testified as follows:
THE COURT: All right. Mr. Yamauchi, raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.
MR. YAMAUCHI: I do.
THE COURT: Please have a seat on the witness stand. And please state and spell your name.
MR. YAMAUCHI: Collin Yamauchi. First name C-O-L-L-I-N. Last name Y-A-M-A-U-C-H-I.
THE COURT: Mr. Harmon.
MR. HARMON: Thank you, your Honor. Ladies and gentlemen.
DIRECT EXAMINATION BY MR. HARMON
MR. HARMON: Mr. Yamauchi, who do you work for now?
MR. YAMAUCHI: The Los Angeles Police Department.
MR. HARMON: In what capacity?
MR. YAMAUCHI: I'm a criminalist.
MR. HARMON: How long have you worked for the Los Angeles Police Department as a criminalist?
MR. YAMAUCHI: For five years now.
MR. HARMON: Okay. What are your present duties?
MR. YAMAUCHI: I'm assigned to the serology unit.
MR. HARMON: Could you describe what that entails?
MR. YAMAUCHI: Serology is the unit that specializes in body fluids, most commonly blood and those found in sexual assaults.
MR. HARMON: How long have you been assigned to the serology unit?
MR. YAMAUCHI: I've been the whole time that I have been at LAPD in the serology unit.
MR. HARMON: For five years? Do you presently perform a form of DNA typing on forensic samples?
MR. YAMAUCHI: Yes.
MR. HARMON: What kind of test do you perform?
MR. YAMAUCHI: The PCR DQ-Alpha.
MR. HARMON: And prior to using PCR DQ-Alpha did you also perform other forms of serological testing?
MR. YAMAUCHI: Yes, I did. I did conventional serology.
MR. HARMON: And do you do that to this date as well as the PCR DQ-Alpha?
MR. YAMAUCHI: You mean simultaneously?
MR. HARMON: Who, not simultaneously. Are you also performing conventional serology on evidence to this date?
MR. YAMAUCHI: Well, once in a while, yes.
MR. HARMON: Let's go back, if you will, to your undergraduate education. Do you have an undergraduate degree?
MR. YAMAUCHI: Yes, I do.
MR. HARMON: Where did you obtain that?
MR. YAMAUCHI: From the California State University Long Beach.
MR. HARMON: What year?
MR. YAMAUCHI: I graduated in `86.
MR. HARMON: Okay. And could you describe your major?
MR. YAMAUCHI: My major is in biology.
MR. HARMON: And let's talk about your undergraduate education for a bit. Okay? And specifically I would like to briefly discuss or describe the kind of courses that you took to obtain the degree in biology that relate in some way to the forensic DNA typing and conventional serology that you perform on evidence samples. Would you do that?
MR. YAMAUCHI: Umm, oh, just list off courses that I have taken?
MR. HARMON: Sure.
MR. YAMAUCHI: Pertinent to--okay. Cellular biology, that would deal with molecular components of the cell, and talk about the genetics also. I have also taken genetics, and there is a number of battery of courses that--well, right now offhand I can't remember them all.
MR. HARMON: Okay. After you graduated from college, what did you do?
MR. YAMAUCHI: I worked three and a half years at ICN Radiochemicals.
MR. HARMON: What sorts of jobs did you perform there?
MR. YAMAUCHI: I was a quality control chemist.
MR. HARMON: Can you describe what that entails?
MR. YAMAUCHI: By--that entails analyzing chemicals for Radiochemicals and chemical purity. These chemicals are often used in, for example, DNA research. There would be the radioactive probes, the components of that, that people use in even like RFLP research and things like that.
MR. HARMON: And what sorts of actual--can you describe the actual hands-on work that you did when you were working there?
MR. YAMAUCHI: Well, it is technical, but I can name names. Some of the things I did was nick translation and random primer labeling--
MR. HARMON: I'm sorry--
MR. YAMAUCHI: --as well--
MR. HARMON: --did you finish?
MR. YAMAUCHI: Well, no. That is fine.
MR. HARMON: Do you wear gloves?
MR. YAMAUCHI: Well, when you are working with radiation it is very important to wear gloves and you have to wear gloves and change them constantly.
MR. HARMON: Wear a lab coat?
MR. YAMAUCHI: Yes.
MR. HARMON: Have to be careful about what you touched?
MR. YAMAUCHI: Definitely.
MR. HARMON: At some point when you worked at ICN did you take some molecular classes at Bethesda research laboratories?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Could you describe those classes, please?
MR. YAMAUCHI: Back then I took a class, it had to do with molecular cleaning, which was kind of a process that is used to make more DNA that they were more used to using back in the past before PCR really got its start.
MR. HARMON: Did you have to wear gloves with that?
MR. YAMAUCHI: Yes.
MR. HARMON: And be careful?
MR. YAMAUCHI: Of course.
MR. HARMON: What did you have to be careful about when you were doing those sorts of jobs or assignments?
MR. YAMAUCHI: Well, in a different way, when working with radios, you don't want to contamination yourself, obviously, but you can also cross-contaminate the different types of chemicals that you are working with, so to a certain extent both names are very important as far as wearing gloves and keeping good solid practices and procedures.
MR. HARMON: Okay. You mentioned the term cross-contamination. You know we are going to be talking about that quite a bit, so that is something that is not unique to the forensic application of DNA typing?
MR. YAMAUCHI: No, it is not.
MR. HARMON: That is a standard laboratory practice in your career before you joined the police department?
MR. YAMAUCHI: As far as wearing gloves and changing them, yes.
MR. HARMON: And being careful?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. When did you actually join the Los Angeles Police Department, do you recall the month and the year?
MR. YAMAUCHI: And I believe 1990.
MR. HARMON: Okay. And after you joined the police department did you continue to take courses in your area of interest?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Both through the police department and elsewhere?
MR. YAMAUCHI: Well, they were all through the police department or through the lab, yeah.
MR. HARMON: Okay. Why don't you describe some of them.
MR. YAMAUCHI: Umm, well, could I refer to my CV?
MR. HARMON: Sure. While you are looking that up, you are not a peace officer; is that right?
MR. YAMAUCHI: No, I'm a civilian.
MR. HARMON: Okay.
(Brief pause.)
THE COURT: Mr. Scheck, do you have a copy of the CV?
MR. SCHECK: Perhaps not the latest version.
THE COURT: Mr. Scheck, do you want to just take a look at what Mr. Yamauchi has.
MR. SCHECK: Yes. Thank you very much.
(Brief pause.)
THE COURT: All right. Mr. Harmon.
MR. HARMON: Thank you, your Honor.
MR. HARMON: Could you, from the earliest to the most recent, could you describe the kind of courses which lend themselves to the expertise that you have in the area of forensic DNA typing as well as conventional serology?
MR. SCHECK: Objection. Assumes a fact not in evidence yet.
THE COURT: Overruled.
MR. YAMAUCHI: Okay. I started out, umm, taking a forensic serology class in May of 1990 and that was at the California Criminalistics Institute in Sacramento, California. That is a part of the Department of Justice. And, umm, in July of 1991 I had a zone electrophoresis class also at the California Criminalistics Institute up at the DOJ. I have--I have been to a crime scene investigation class also through the California Criminalistics Institute and I have received training at a place called AGTC in Denver, Colorado, for immunoglobulin allotyping training.
MR. HARMON: Could you describe what that is, just briefly?
MR. YAMAUCHI: That--that is--that is kind of a fancy name for something that is very similar to the ABO system, except it gives you more information.
MR. HARMON: An AGTC, is that a private laboratory that regularly conducts training sessions?
MR. YAMAUCHI: Yes. As far as I know, yes.
MR. HARMON: Okay. Go ahead. I didn't mean to interrupt you.
MR. YAMAUCHI: And in September of `91 to January of `92 I took a class through I believe it was Cal State Fullerton and it was held at the Orange County Sheriff's crime laboratory and that dealt with the forensic application of molecular biology.
MR. HARMON: Okay. Now, is that the first forensic class that you took with respect to DNA typing?
MR. YAMAUCHI: Forensic? Yes--yeah, I believe so.
MR. HARMON: And the Orange County crime lab has their own DNA lab; is that correct?
MR. YAMAUCHI: Yes, they do.
MR. HARMON: Are those the people that conducted the class?
MR. YAMAUCHI: No. This was held by a professor from California State Fullerton.
MR. HARMON: Okay. Do you recall whose name--what his name was?
MR. YAMAUCHI: I believe Frommson.
MR. HARMON: Okay. Why don't you take up from there then, the next classes that you took.
MR. YAMAUCHI: In--well, actually in January of `92 I had an isoelectric focusing class also at the California Criminalistics Institute, and in August of `93 I went to forensic PCR amplification training workshop and that is put on by Roche molecular systems who had the patent and they still do have the patent on PCR.
MR. HARMON: Are they the ones that have developed, manufactured and produced the kits that are used for PCR DQ-Alpha typing?
MR. YAMAUCHI: Yes.
MR. HARMON: Where was that course conducted?
MR. YAMAUCHI: Umm, that was at Alameda, California, at that time.
MR. HARMON: Okay. How many hours did that class or did that class consist of?
MR. YAMAUCHI: About 64.
MR. HARMON: And did you get any sort of credits for that?
MR. YAMAUCHI: There was a certification of completion, yes.
MR. HARMON: So you got some sort of certificate?
MR. YAMAUCHI: Yes.
MR. HARMON: Did that entail hands-on work?
MR. YAMAUCHI: Yes, it did.
MR. HARMON: Can you describe that, please?
MR. YAMAUCHI: Well, we went through the PCR process with DQ-Alpha, as well as other markers which I--I don't do yet, but we are working on getting that on line, and that would be D1S80, which was discussed earlier, and also the polymarker system.
MR. HARMON: Who are the instructors in that course?
MR. YAMAUCHI: Well, we had Henry Erlich talked for a while, we had Jennifer Mihalovich from Ed Blake's lab came and talked, Judy Allen I believe is her name was the coordinator of the class. And let's see. Brian Wraxall I believe was there to talk for a little while at the end also.
MR. HARMON: Okay. How many students were in the group?
MR. YAMAUCHI: Somewhere between 15 and 20.
MR. HARMON: And were these people from all over the country?
MR. YAMAUCHI: Yes.
MR. HARMON: Did you have to take any sort of exam? You mentioned you got a certificate. Was there an exam involved, too?
MR. YAMAUCHI: I believe there was.
MR. HARMON: Okay. Do you continue to keep abreast of developments in forensic DNA typing as well as forensic--forensic serology?
MR. YAMAUCHI: Yes. I'm a member of the California association of criminalists, and one of the things that they have associated with that are monthly study group meetings and I try to attend those as much as possible.
MR. HARMON: Okay. Do you also read scientific literature in the areas that you are interested in?
MR. YAMAUCHI: As far as pertaining to the case work I do.
MR. HARMON: Sure.
MR. YAMAUCHI: Of course, yeah.
MR. HARMON: What journals do you read?
MR. YAMAUCHI: Well, there is a number of them. Just--specifically?
MR. HARMON: Sure.
MR. YAMAUCHI: Well, I have read articles pertaining directly to the PCR process. I can't remember all the names and the titles and the abstracts and that.
MR. HARMON: When did you first become exposed to PCR DQ-Alpha typing at the Los Angeles Police Department lab?
MR. YAMAUCHI: First become exposed?
MR. HARMON: Yes.
MR. YAMAUCHI: Could you clarify that?
MR. HARMON: When did you first become aware that the--that the laboratory was going to do PCR DQ-Alpha typing?
MR. YAMAUCHI: Well, from the day I started there was talk as to implementation of the DNA technologies and at first they were talking about RFLP and that was what was of interest. And later on, as the PCR technology developed and it seemed more feasible, that was talked about more and more.
MR. HARMON: And that is about the same time you started taking the classes that had to do with PCR typing?
MR. YAMAUCHI: I believe they were talking about it before that.
MR. HARMON: Okay. How did it come about that that became part of your assignment, PCR typing?
MR. YAMAUCHI: Well, I believe I--because of my background working at ICN I had some experience working with DNA.
MR. HARMON: And when did that happen, the decision to have you do some PCR typing?
MR. YAMAUCHI: To learn and be trained? It must have been sometime in 1993.
MR. HARMON: Okay. When did you first begin using just in-house PCR DQ-Alpha typing?
MR. YAMAUCHI: When did I do the--my first case or--
MR. HARMON: When did you just begin your handling of PCR DQ-Alpha typing at LAPD in any form?
MR. YAMAUCHI: I'm sorry, I don't have the specific date to that, but it would have been in 1993 sometime.
MR. HARMON: Early or late `93?
MR. YAMAUCHI: Probably mid.
MR. HARMON: Okay. And were you the first person in the laboratory to begin implementing PCR DQ-Alpha typing?
MR. YAMAUCHI: No.
MR. HARMON: Who was?
MR. YAMAUCHI: Erin Riley.
MR. HARMON: And when did that begin?
MR. YAMAUCHI: I'm not specifically sure.
MR. HARMON: How long before you began implementing PCR was it that she had begun?
MR. YAMAUCHI: Well, we were assigned the project together, except she was given more of the responsibilities because she had training from the FBI, and I'm not real sure when that was, but it was prior to `93.
MR. HARMON: Now, what--will you describe who Erin Riley is and what her specific assignment and title is within the laboratory?
MR. YAMAUCHI: I'm sorry. She is also another criminalist last working in the serology unit. We work together. She is also a criminalist 2.
MR. HARMON: Okay. Had the LAPD laboratory, not you, but the laboratory itself, begun accepting case work before you began accepting cases?
MR. YAMAUCHI: Case work as to the PCR process?
MR. HARMON: Yes.
MR. YAMAUCHI: Well, yes, we did in a way. We did accept cases and, umm, after conventional screening they may or may not have been shipped off to different laboratories that did have the technology on line.
MR. HARMON: Okay. And what was--will you describe your first exposure to PCR typing in the laboratory. I'm not talking about case work, I mean the first actual case work you had within the laboratory, aside from the classes just describe for the jury.
MR. SCHECK: Object to the term "Exposure" as vague.
THE COURT: Sustained. Do you want to rephrase that, please.
MR. HARMON: When did you first begin performing PCR DQ-Alpha analysis, not in case work, just in any form within the laboratory?
MR. YAMAUCHI: PCR--once again, that would have been sometime in 1993. I don't have the specific date.
MR. HARMON: Okay. What did you do prior to that with respect to PCR DQ-Alpha typing before you actually began performing tests?
MR. YAMAUCHI: I did conventional serology.
MR. HARMON: Okay. But with regard to PCR DQ-Alpha, what--did you just pick it up one day and start doing it?
MR. YAMAUCHI: Did I--I'm sorry, I don't--
MR. HARMON: Did you study protocols before you began performing the tests?
MR. YAMAUCHI: Yes, of course.
MR. HARMON: Okay. Would you tell us how you began your implementation period with PCR DQ-Alpha.
MR. YAMAUCHI: Well, I went over the user guide that is provided by Roche molecular systems and looked through that and this would have been prior to--to my even going to the class. But Erin Riley had been to the class, and so I had that information available to me, and I went over those protocols and procedures and with Ms. Riley's help I went through and tried to run the strips.
MR. HARMON: Okay. And over how long a period did this implementation last for you before you began doing case work?
MR. YAMAUCHI: Between the parts where I was studying and everything? Six to eight months.
MR. HARMON: And was it in that period that you took any of these classes as well?
MR. YAMAUCHI: Yes.
MR. HARMON: And which of the classes, the one at Roche?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Before you--do you remember when you actually began or accepted your first case for PCR DQ-Alpha typing?
MR. YAMAUCHI: I believe I have it written somewhere.
MR. HARMON: Sure, if it would help to refresh your recollection if you've got it written down somewhere.
MR. YAMAUCHI: The first case was assigned to me in October of `93 and the first case for PCR that I completed was in November of `93.
MR. SCHECK: Your Honor, may I just look at the note that he is looking at?
THE COURT: Yes.
(Brief pause.)
THE COURT: Mr. Harmon.
MR. HARMON: Thank you, your Honor.
MR. HARMON: The jury has seen some of these strips, okay, and what I want to do is I want you to describe about how many strips or tests that you actually performed using the PCR DQ-Alpha system before you accepted your first case? Do you have any idea?
MR. YAMAUCHI: How many strips? Well over a hundred. I would have to go back and count, though.
MR. HARMON: You could, if you had to?
MR. YAMAUCHI: Yes.
MR. HARMON: Go back and count? In terms of conventional serology electrophoresis tests, can you give the jury some sense of how many times you performed those sorts of tests on evidence samples?
MR. YAMAUCHI: Electrophoresis? Hundreds of times.
MR. HARMON: Okay. Have you ever testified as an expert in the field of conventional serology, electrophoretic typing?
MR. YAMAUCHI: Yes.
MR. HARMON: How many times?
MR. YAMAUCHI: Oh, over twenty.
MR. HARMON: Over how long a period of time?
MR. YAMAUCHI: The five years I have been a criminalist.
MR. HARMON: Do you take any sort of proficiency tests?
MR. YAMAUCHI: Yes. We are--we run samples from CTS and College of American Pathologists.
MR. HARMON: Okay. Now, that is for the PCR DQ-Alpha system?
MR. YAMAUCHI: Yes, and they have--they also have for conventional serology.
MR. HARMON: And have you taken any--I'm sorry. Have you taken conventional serology proficiency tests?
MR. YAMAUCHI: I have once.
MR. HARMON: Okay. How many times have you taken proficiency--
MR. SCHECK: Objection. 1054 objection as to the conventional serology tests.
THE COURT: Overruled.
MR. HARMON: How many proficiency tests have you taken which depend on the PCR DQ-Alpha marker?
MR. YAMAUCHI: I would say approximately eight or nine.
MR. HARMON: Over how long a period of time?
MR. YAMAUCHI: Well, the year and a half or so that I have been doing PCR.
MR. HARMON: And did you actually take any proficiency tests before you accepted your first case work in October of `93?
MR. YAMAUCHI: I might have. I would have to go back and check the records.
MR. HARMON: Now, you mentioned two organizations. CTS--
MR. YAMAUCHI: Yes.
MR. HARMON: --is that the collaborative testing service?
MR. YAMAUCHI: Yes, it is.
MR. HARMON: And when you take those tests, do you know it is a proficiency test?
MR. YAMAUCHI: Yes.
MR. HARMON: Do you know what the answer is ahead of time?
MR. YAMAUCHI: No, I don't.
MR. HARMON: When you take the CAP, that is the College of American Pathologists?
MR. YAMAUCHI: Yes.
MR. HARMON: Okay. Do you know the answer ahead of time when you take that test?
MR. YAMAUCHI: No.
MR. HARMON: Do you know it is a proficiency test?
MR. YAMAUCHI: Yes, I do.
MR. HARMON: Okay. Have you ever been graded as having made a mistake in any of those proficiency tests?
MR. YAMAUCHI: No.
MR. HARMON: Does that mean you couldn't make a mistake?
MR. YAMAUCHI: Does that--well, no, it doesn't.
MR. HARMON: Have you ever testified as an expert in a court in the field of forensic PCR DQ-Alpha typing?
MR. YAMAUCHI: Yes.
MR. HARMON: How many times?
MR. YAMAUCHI: Twice.
MR. HARMON: In what courts? In this county?
MR. YAMAUCHI: Yes.
MR. HARMON: Have there been times--have there ever been times when you have attempted to testify but have not been found qualified to testify in the field of PCR DQ-Alpha typing?
MR. YAMAUCHI: No.
MR. HARMON: When were those two times?
MR. YAMAUCHI: I would have to go back and check the records.
MR. HARMON: Okay. Can you give us a ballpark?
MR. YAMAUCHI: Last year.
MR. HARMON: Now, in the tests that you performed, the PCR DQ-Alpha testing, have you ever excluded anyone who was suspected of having committed a crime?
MR. YAMAUCHI: Yes.
MR. HARMON: Any idea how many times?
MR. YAMAUCHI: Well, offhand I can think of at least once, but there might have been more.
MR. HARMON: How many strip test samples have you subjected to the PCR DQ-Alpha test as you sit there today?
MR. YAMAUCHI: I'm not sure. I would have to go back and count them all.
MR. HARMON: Can you give us a ballpark figure?
MR. YAMAUCHI: Well, 500, a thousand, maybe even more than that. I don't know.
MR. HARMON: Do you have any idea how many actual cases you have worked on for PCR DQ-Alpha typing?
MR. YAMAUCHI: I believe around sixty.
MR. HARMON: Does the Los Angeles Police Department have a lengthy written protocol for the performance of PCR DQ-Alpha testing?
MR. SCHECK: Objection, characterization.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Does the Los Angeles Police Department scientific investigations have a written PCR protocol?
MR. YAMAUCHI: Yes. We have a set of guidelines for PCR practices.
MR. HARMON: Okay. And does the protocol include other PCR markers in addition to DQ-Alpha?
MR. YAMAUCHI: I believe so at this time.
MR. HARMON: Okay. And are you familiar with the Los Angeles Police Department scientific investigation written protocol?
MR. YAMAUCHI: Yes, I'm familiar with it.
MR. HARMON: Is it based on the Roche DQ-Alpha user guide?
MR. YAMAUCHI: Yeah, many parts of it are very similar.
MR. HARMON: We are going to talk about some events in June and then move on pretty shortly, but I'm going to ask you questions about PCR DQ-Alpha tests you performed on evidence in this case in the middle of June, okay? But before we get to that, I would like to ask you generally, when you performed the tests that you will be testifying about shortly on the evidence samples in this case, did you perform them in accordance with the Los Angeles Police Department SID written protocol for PCR DQ-Alpha typing?
MR. SCHECK: Objection, assumes fact not in evidence.
THE COURT: Overruled.
MR. YAMAUCHI: Yes, I did.
MR. HARMON: Let's go back to June 13, 1994. What hours were you working those days?
MR. YAMAUCHI: It was either 7:00 to 3:30 or 7:30 to 4:00.
MR. HARMON: Okay. Do you recall late in your workday on June 13th having a conversation with Greg Matheson about what you know this case is about?
MR. YAMAUCHI: Yes.
MR. HARMON: And what did Mr. Matheson discuss with you?
MR. YAMAUCHI: He asked me if I--
MR. SCHECK: Objection, hearsay.
THE COURT: Sustained.
MR. HARMON: It is not offered for the truth of the matter, your Honor.
THE COURT: Sustained.
MR. HARMON: Did you have a discussion with Mr. Matheson about this case?
MR. YAMAUCHI: Yes, I did.
MR. HARMON: And based on this case--and did you consider what Mr. Matheson discussed with you late on June 13th in deciding what tests to perform ultimately in this case?
MR. YAMAUCHI: Yes.
MR. HARMON: Did you actually do anything with respect to this case on June 13th?
MR. YAMAUCHI: No, I did not.
MR. HARMON: Other than the conversation with Mr. Matheson?
MR. YAMAUCHI: Yes, other than that conversation.
MR. HARMON: Do you remember what time you came to work on June 14th?
MR. YAMAUCHI: June 14th?
MR. HARMON: Yes.
MR. YAMAUCHI: Oh, 7:00 or 7:30.
MR. HARMON: Okay. And did you have another discussion with Mr. Matheson?
MR. YAMAUCHI: I believe I talked to him in the morning, yes.
MR. HARMON: Now, were--you are in the serology division, okay. Do you have a separate room within the laboratory?
MR. YAMAUCHI: Serology?
MR. HARMON: Yes.
MR. YAMAUCHI: Yes. There is a serology unit area.
MR. HARMON: Okay. And is that something that there is security to get in, some sort of security device?
MR. YAMAUCHI: We have to use our access cards.
MR. HARMON: And do you understand there is actually a printout that shows the comings and goings of people if they use the access card?
MR. YAMAUCHI: Yes.
MR. HARMON: Have you seen those things occasionally, the printout?
MR. YAMAUCHI: Yes, I have.
MR. HARMON: Where was Mr. Matheson's office at that time with respect to serology?
MR. YAMAUCHI: At the time he was serology supervisor. His office would be within the serology unit.
MR. HARMON: Did you talk about this case?
MR. YAMAUCHI: Yes.
MR. HARMON: What did you discuss with Mr. Matheson?
MR. YAMAUCHI: (No audible response.)
MR. SCHECK: At this point a hearsay objection.
THE COURT: Sustained.
MR. HARMON: It is to explain future conduct. It is not offered for the truth of the matter, your Honor.
MR. SCHECK: Maybe if I could get an idea of what he intends--
THE COURT: Why don't you confer with counsel.
MR. SCHECK: I'm sorry?
THE COURT: Why don't you confer with counsel.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SCHECK: One second.
THE COURT: All right.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: No problem.
THE COURT: Withdraw your objection?
MR. SCHECK: Based on what he told me.
THE COURT: Proceed.
MR. HARMON: I'm going to turn the clock back a day then and ask you let's go back to June 13th, the end of the day. You have a discussion with Mr. Matheson about the case?
MR. YAMAUCHI: Yes.
MR. HARMON: What did Mr. Matheson tell you at that time about the case?
MR. YAMAUCHI: He asked me if I would want to work on this case. He is not sure of all the aspects, but he believes that it could involve sexual assault, as well as blood evidence and conventional and quite possibly PCR testing.
MR. HARMON: Okay. What else came--anything else come up in that conversation?
MR. YAMAUCHI: I can't remember back all that well.
MR. HARMON: Okay. Let's talk about the next morning. You go in and you are talking to Mr. Matheson again. Did you have a more specific discussion with him at that point?
MR. YAMAUCHI: Yes, I believe so. He probably had more information then, so we would talk more.
MR. HARMON: And could you tell us what you and Mr. Matheson discussed at that point?
MR. YAMAUCHI: At that point he--he seemed to think that we--we had evidence that would need certain types of specific testing, and I recall him talking possibly doing something that would be fast, like an ABO test, and we discussed that a little bit. And I said, well, ABO has, umm, limited power of separating things out, because, for instance, a type o can be approximately half of the population, and so because that system is kind of weak in that respect, we discussed the possibility of using PCR DQ-Alpha, because that would have a little bit better chance of sorting things out into finer groups.
MR. HARMON: And you mentioned that speed was somehow of importance. Why was that?
MR. YAMAUCHI: I believe at the time there were reasons that I wasn't quite aware of or made aware of, but they had to do with the investigative reasons why the detectives would need results rather quickly.
MR. HARMON: During the discussion with Mr. Matheson were specific items of evidence talked about?
MR. YAMAUCHI: He referred me to Dennis Fung to discuss what items of evidence would be good to pick and choose for analysis.
MR. HARMON: Was anyone else there in serology at the time you had this conversation with Greg Matheson?
MR. YAMAUCHI: Well, I can't remember back all that well who was there and who wasn't.
MR. HARMON: Is that an area where many people work?
MR. YAMAUCHI: Yeah, there is. Usually the serology unit members are always in and out.
MR. HARMON: And did you have this conversation with Mr. Matheson in his office or out in the laboratory work area?
MR. YAMAUCHI: One or the other.
MR. HARMON: Okay. As a result of that conversation--strike that. Was Dennis Fung a party to this conversation?
MR. YAMAUCHI: I believe I first talked to Dennis back in the evidence processing room.
MR. HARMON: Before or after this conversation?
MR. YAMAUCHI: It would be afterwards.
MR. HARMON: So was Dennis Fung present while you were having this conversation with Greg Matheson?
MR. YAMAUCHI: I'm not sure.
MR. HARMON: After the discussion that you have just mentioned to us, did you go back to find Dennis?
MR. YAMAUCHI: Yes. I--that would--that would have been the next thing on my mind, to look for Dennis to go discuss what stains to pick out and analyze.
MR. HARMON: Is that what you did?
MR. YAMAUCHI: Yes.
MR. HARMON: Where did you find him?
MR. YAMAUCHI: I believe I must have--well, let's see here. Yeah, I would have talked to him in the evidence processing room, because that is where he would be discussing the evidence with me.
MR. HARMON: And do you recall about how long after the conversation with Greg Matheson it was that you found Dennis Fung and talked to him about the case in the evidence processing room?
MR. YAMAUCHI: It has got to be less than half an hour, fifteen minutes--less than fifteen minutes.
MR. HARMON: Okay. Do you recall if anyone else was present when you had a conversation that you will be telling us about this afternoon with Dennis Fung?
MR. YAMAUCHI: This afternoon? What was that?
MR. HARMON: Sorry. It was a bad question. Can we take the break now, your Honor, before we move on?
THE COURT: Yes. Why don't you ask him that last question.
MR. HARMON: Sure.
MR. HARMON: Was anyone else present when you had the conversation with Dennis Fung about this case?
MR. YAMAUCHI: No.
MR. HARMON: Okay.
THE COURT: All right. Ladies and gentlemen, we are going to take to our recess for the morning session. Please remember all of my admonitions to you. Don't discuss this 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. Counsel, we will stand in recess until one o'clock. And let me see Miss Clark and Mr. Cochran.
(A conference was held at the bench, not reported.)
(At 12:00 P.M. the noon recess was taken until 1:00 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; WEDNESDAY, MAY 24, 1995 1:00 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present with his counsel, People are represented. The jury is not present. Counsel, anything we need to take up?
MR. SCHECK: I don't know that we've resolved the last set of pictures.
MR. HARMON: The purpose of the board was to show how you do PCR. It is correct that the product gel setup is around the corner on a little lab table from where it's shown in the picture, but that's not--the purpose isn't to replicate the exact conditions, but it's to educate the jury on the different steps of the PCR process, so make sure to tell the jury this is not the exact conditions that the test was performed under in this case, your Honor.
THE COURT: All right. Let's have the jurors.
MR. SCHECK: I take it, your Honor--you're nodding your head. So--
THE COURT: As long as it's not a misrepresentation as to what actually occurred.
MR. SCHECK: Well, I think that my representation to you before was the correct one, that it is in a different location and it was configured differently. And we did take a tour and we did see it, and there will be testimony that it looked differently and, you know, was a more cramped space and a different space than the one depicted. So what I'm saying to you is correct, and I'd just like to--I mean it's up to the Court. Those are photographs I never saw, and what I'm saying to you is that it's all cleaned up.
THE COURT: Well, there are--they'll use that at their hazard. Let's have the jurors.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Be seated. Mr. Yamauchi, would you resume the witness stand, please.
Collin Yamauchi, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as