Preliminary Hearing - June 30, 1994
0001
01 IN THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT
02 COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
03 HON. KATHLEEN KENNEDY-POWELL, JUDGE DEPARTMENT 105
04 THE PEOPLE OF THE STATE OF CALIFORNIA, ) NO. BA097211
04 )
05 PLAINTIFF, )
05 )
06 VS. ) VOLUME 1
06 )
07 )
07 ORENTHAL JAMES SIMPSON, )
08 AKA O.J. SIMPSON, )
08 )
09 )
09 DEFENDANT. )
10 _______________________________________)
10
11
11
12 REPORTER'S TRANSCRIPT OF PROCEEDINGS
12
13 THURSDAY, JUNE 30, 1994
13
14
14
15 APPEARANCES:
15
16 FOR THE PLAINTIFF: MARCIA CLARK
16 WILLIAM HODGMAN
17 DEPUTIES DISTRICT ATTORNEY
17
18
18
19 FOR THE DEFENDANT: ROBERT SHAPIRO
19 GERALD UELMEN
20 PRIVATELY RETAINED COUNSEL
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21
21
22
22
23 SPECIAL CIRCUMSTANCES
23
24
24
25
25
26
26 ARNELLA I. SIMS, CSR #2896
27 ROSE FORBESS, CSR #4853
27 OFFICIAL COURT REPORTERS
28
0002
01 EVIDENCE MOTIONS
01
02 I N D E X
02 VOIR
03 PEOPLE'S WITNESS(ES): DIRECT CROSS REDIRECT RECROSS DIRE
03
04 MICHELE KESTLER 11 45
04
05
05
06
06
07
07
08
08
09
09
10
10
11 -O0O-
11
12
12
13
13
14 MOTION EXHIBITS
14
15
15 PEOPLE'S EXHIBIT(S): FOR IDENTIFICATION IN EVIDENCE
16
16
17
17
18 (none offered)
18
19
19
20
0003
01 LOS ANGELES, CALIFORNIA
02 Thursday, June 30, 1994
03 9:10 A.M.
04 -O0O-
05
06 THE COURT: Good morning.
07 MR. SHAPIRO: Good morning, Your Honor.
08 MS. CLARK: Good morning, Your Honor.
09 MR. HODGMAN: Good morning, Your Honor.
10 THE COURT: Would counsel state their appearances?
11 Well, I guess the defendant is not out yet.
12 MR. SHAPIRO: This is the quietest courtroom I've
13 ever been in, Your Honor.
14 THE COURT: I don't know how long that will remain,
15 but we'll see.
16 All right.
17 The record should reflect now that the
18 defendant is present with counsel.
19 You may be seated, if you wish, and would
20 counsel state their appearances, for the record.
21 MR. SHAPIRO: Good morning, your Honor. Robert L.
22 Shapiro and Gerald Uelmen for Mr. Simpson, who is now
23 present.
24 THE COURT: All right.
25 MR. HODGMAN: And good morning, Your Honor.
26 William Hodgman for the people.
27 MS. CLARK: Marcia Clark for the people. Good
28 morning, Your Honor.
0004
01 THE COURT: Good morning.
02 Now, there are a number of matters on calendar
03 today. I think there is one matter that can be
04 resolved in fairly short order, and that relates to the
05 hair sample that the court did grant an order for a hair
06 sample.
07 The defense submitted an order to the court
08 requesting to limit that hair sample to one hair. I
09 did have my clerk contact the District Attorney's office
10 to determine whether they were in agreement with that
11 order, and the indication was that they were not, and
12 therefore I've done nothing with regard to that order to
13 this point.
14 Ms. Clark, how much hair do the people need?
15 MS. CLARK: Well, Your Honor, hair samples -- as
16 I'm sure the defense must be aware -- in order to be
17 effectively compared with an evidence sample recovered
18 from a crime scene, has to be taken from each area of
19 the suspect's head, and that means that a minimum of
20 five to ten hairs from each area, which usually amounts
21 to about a hundred hairs.
22 Any scientist, no matter how inexperienced, is
23 aware of that fact. You cannot do an effective
24 comparison between a known standard and an evidence
25 standard without that size of sample.
26 THE COURT: So you're asking for 100 hairs?
27 MS. CLARK: We're asking for as many hairs as the
28 criminalist or expert determines is necessary to
0005
01 effectively compare the standard hairs from the head of
02 the defendant with the hairs found at the crime scene.
03 And I've never seen a court attempt to
04 restrict that, because that is obviously a matter that a
05 criminalist would have to determine based on what he can
06 recover.
07 THE COURT: Mr. Shapiro.
08 MR. SHAPIRO: Your Honor, according to Dr. Henry
09 Lee, our chief criminalist who is the head of the
10 Department of Criminology in Connecticut, he tells us
11 one to three hairs are sufficient.
12 I think perhaps this may be an appropriate
13 matter for the court to have a hearing on.
14 I think 100 hairs is unduly invasive, makes
15 the inventorying of the hairs a very, very difficult
16 task, and certainly allows for the possibility of the
17 comingling of samples, which could contaminate any test.
18 So we would ask for a hearing on this.
19 I've been practicing for a long time. I have
20 never, ever heard of such a request.
21 THE COURT: All right.
22 This is what I'm prepared to do at this point
23 in time: that is to order, no more than 10 hairs at
24 this point.
25 If the prosecution at some point feels that
26 they are in need of more hairs than the 10 that I'm
27 going to allow at this point, then we will have that
28 hearing with experts, if necessary.
0006
01 This is not a matter that the court has
02 independent expert knowledge concerning, so that's
03 going to be the order at this point in time, subject to
04 a further hearing with evidence, if necessary, from both
05 sides for anything beyond 10 hairs.
06 MS. CLARK: Your Honor, I don't think that counsel
07 has conferred with Mr. Lee concerning the nature of the
08 tests involved. If Mr. Lee is -- and if Mr. Lee has
09 informed counsel that only one to three hairs are needed
10 for microscopic comparison, then he has misinformed
11 counsel, and I can state that categorically.
12 I'm very surprised to hear Mr. Shapiro has
13 never heard of the number of hairs I have just indicated
14 to the court being required before, because that is a
15 standard thing. When a microscopic analysis is
16 endeavored, it is required that you have standards from
17 every area of the head, 10 hairs per area. That's a
18 standard.
19 I'm not talking about anything unusual here,
20 and what Mr. Lee is talking about --
21 THE COURT: Ms. Clark --
22 MS. CLARK: -- Excuse me, is P.C.R. work. We're
23 talking about comparison for microscopic as well.
24 We're not just talking about P.C.R. only.
25 THE COURT: At this point you're of the opinion,
26 and it may indeed be the correct conclusion, that you're
27 going to need more than that.
28 The bottom line is that if, in fact, you do
0007
01 need more than that, you are going to have to produce an
02 expert to justify that to the court. And if indeed
03 that justification is made, I will sign the appropriate
04 order.
05 MS. CLARK: Thank you, Your Honor. We will
06 present that testimony today.
07 THE COURT: Today?
08 MS. CLARK: Yes.
09 THE COURT: Very well.
10 MS. CLARK: Thank you very much.
11 THE COURT: Okay.
12 Now --
13 MR. SHAPIRO: Your Honor, excuse me.
14 THE COURT: Yes.
15 MR. SHAPIRO: On the matter of hair, before you
16 leave that issue, we do not have an indication as to how
17 many follicles or shafts were found that the people are
18 going to use for a point of comparison.
19 May we ask the court to make such inquiry so
20 we may have knowledge of that now?
21 THE COURT: Yes.
22 Ms. Clark, do you know the answer to that
23 question at this point?
24 MS. CLARK: I -- I was told just this morning, and
25 I cannot recall -- I'm not going to make a
26 representation.
27 We have an expert here who can tell the court
28 precisely how many follicles and how many shafts there
0008
01 are. I'd rather let them say.
02 THE COURT: All right.
03 Now, you indicate you do have an expert
04 here. Do you want to proceed on this issue of the
05 number of hairs right now, or would you prefer to do
06 that some time later? What is your preference?
07 MS. CLARK: Well, Your Honor, as I understand it,
08 the court had required us to proceed this morning on the
09 issue of the blood split that was requested.
10 THE COURT: Yes.
11 MS. CLARK: So the expert who is going to testify
12 to that matter can also address matters of the hair
13 because she's the director of the crime lab for the
14 Los Angeles Police Department. So we can do it all at
15 once.
16 THE COURT: That would be fine.
17 Mr. Shapiro, I assume that you are prepared on
18 the hair issue?
19 MR. SHAPIRO: Yes, I am, Your Honor, thank you.
20 THE COURT: All right.
21 Then let's -- also then in conjunction with
22 the determination of the number of hairs, there remains
23 the determination of the sufficiency of certain blood
24 samples for defense splits.
25 Now, I also should mention that the court is
26 in receipt of the defense motion that was filed to quash
27 and traverse and to suppress certain evidence, and
28 attached as an exhibit to the defense motion was a
0009
01 property report listing certain items of evidence, I
02 think 1 through 34 denoted there.
03 Is it correct that all of the scientific
04 evidence about which we're speaking about splitting is
05 included in those items 1 through 34?
06 MR. UELMEN: I don't believe so, Your Honor. I
07 believe there is scientific evidence related to items
08 recovered at the scene of the homicide, 875 Bundy.
09 The motion only goes to the evidence that was
10 obtained at the home of Mr. Simpson.
11 THE COURT: All right.
12 Does anyone have something to provide to the
13 court with a listing of what specific items we're
14 dealing with?
15 If there's going to be different testimony
16 concerning a particular item that was received in
17 evidence and the court would ultimately be making orders
18 perhaps differing or designating certain samples that
19 would be split and certain samples that would not be
20 split, it would certainly be helpful to the court to
21 have some sort of a number, and the way it's denoted in
22 the property report would make sense since that's the
23 way all of you will be dealing with the evidence, and
24 the criminalists as well.
25 Is there a copy of the property report that
26 could be made available just for the Court's use in
27 keeping track of the items of evidence, scientific
28 evidence that we're dealing with?
0010
01 MR. SHAPIRO: We have extra copies, Your Honor.
02 MS. CLARK: I do, Your Honor.
03 THE COURT: If someone could hand that to my clerk,
04 it would greatly assist me during this motion.
05 All right. Then I guess then we'll just
06 commence with the testimony with regard to the splitting
07 of the evidence at this point in time.
08 Ms. Clark.
09 MS. CLARK: Thank you, Your Honor.
10 The people will call Michele Kestler.
11 THE COURT: Please face the clerk and raise your
12 right hand.
13 THE CLERK: You do solemnly swear the testimony you
14 may give in the cause now pending before this court
15 shall be the truth, the whole truth and nothing but the
16 truth, so help you God?
17 THE WITNESS: I do.
18
19 Michele Kestler,
20 called as a witness by and on behalf of the People,
21 having been duly sworn, was examined and testified as
22 follows:
23 THE CLERK: Please be seated.
24 State and spell your name for the record.
25 THE WITNESS: Michele Kestler. M-i-c-h-e-l-e,
26 K-e-s-t-l-e-r.
27 THE COURT: Thank you very much.
28 You may inquire.
0011
01 DIRECT EXAMINATION
02
03 BY MS. CLARK:
04 Q Good morning, Ms. Kestler.
05 A Good morning.
06 Q Please tell us what you do for a living.
07 A I'm employed by the City of Los Angeles,
08 Los Angeles Police Department, and I am the assistant
09 laboratory director for the criminalistics laboratory.
10 Q Tell us what that means. What are your
11 duties?
12 A My duties include the managing and overseeing
13 of several areas there, including the serology, D.N.A.
14 lab, the trace unit and many of the other units that are
15 there.
16 Q And what does that mean? What exactly do you
17 mean by that?
18 A Well, managing also means evaluating and
19 implementing programs such as serology and D.N.A.,
20 including evaluating crime scenes and managing task
21 forces or large cases, and the employees that are doing
22 the work.
23 Q So you direct the criminalists in what to do,
24 basically?
25 A That's correct.
26 Q Were you once a criminalist yourself?
27 A Yes, I was.
28 Q Tell us what a criminalist is.
0012
01 A A criminalist is one who collects, preserves
02 and analyzes all types of physical evidence and
03 testifies in court.
04 Q Now, does that mean it's somebody that goes
05 out to a crime scene to collect evidence from a scene?
06 A Yes.
07 Q Of a scientific or evidentiary nature?
08 A That's correct.
09 Q Have you also performed trace evidence
10 analysis or blood analysis?
11 A Blood, years ago and trace, years ago also,
12 yes.
13 Q What kind of training did you receive in order
14 to get your current position?
15 A The training in the current position is
16 basically a management position, so I have taken several
17 management classes.
18 But the criminalist position, my training and
19 background includes a master's degree of criminalistics
20 from Cal State University, and then on the job training
21 including courses at the F.B.I. laboratory and
22 California Criminalistics Institute and various other
23 private classes.
24 Q And how many years of training is that?
25 A Overall?
26 Q Overall.
27 A Master's degree is two years beyond your
28 bachelor's. I have probably about total of four
0013
01 years -- six years invested there. And training in
02 specialty classes, probably about another two years
03 full-time training if you were to separate it out
04 compared to on-the-job work.
05 Q Now, you have your master's in what?
06 A Criminalistics.
07 Q And criminalistics, the subject is defined as?
08 A Again, criminalistics is forensic science or
09 all areas of evaluating forensic evidence.
10 Q Now, when you say "evaluating forensic
11 evidence," Ms. Kestler, what does that mean in terms of
12 your knowledgeability about which tests are available
13 and appropriate to be performed on various types of
14 evidence?
15 A One of the things that forensic experts must
16 look at in any type of physical evidence, the first
17 thing you do is you look at the evidence, you find
18 out -- evaluate what you have, what it is, and then you
19 proceed from there, and the type of testing you would
20 like to do is going to be the most informative and the
21 most conclusive, and you have to evaluate each piece of
22 evidence for that purpose.
23 Q And are you qualified to do that?
24 A I believe I am, yes.
25 Q Does your training, in fact, qualify you to do
26 that?
27 A Yes, it does.
28 Q Now, are you also trained and experienced in
0014
01 determining how much volume of sample is needed for each
02 test that you determine is appropriate to be performed
03 on each item of evidence?
04 A Yes.
05 Q Now, in this particular case, was it requested
06 of you to determine whether certain items of evidence
07 that were blood stains recovered from both the crime
08 scene and the residence of the defendant as well as
09 blood recovered from certain items found at the crime
10 scene and the defendant's residence were sufficient in
11 quality and quantity for subjecting to certain
12 scientific tests?
13 A Yes. We were asked to determine whether the
14 evidence, our best evidence as to whether the evidence
15 was appropriate for that.
16 Q And did you review also the number of tests, a
17 variety of tests, a range of tests that could be
18 performed on each item of evidence in order to gain the
19 maximum possible competence in the results?
20 A Yes. We reviewed the samples and made again
21 our best estimate as to what could be done. Of course,
22 there's never any guarantee until the tests are actually
23 done or you actually start working with the evidence to
24 determine whether you're accurate in your estimate.
25 Q Now did you, in fact, then review much of the
26 evidence that has been recovered in this case?
27 A Yes, most of it.
28 Q Tell us, first of all, for purposes of clarity
0015
01 which items were you unable to examine for the purpose
02 of determining whether a blood split could be given to
03 the defense?
04 A Okay. I'd like to refer to my notes.
05 Q Please.
06 A Thank you.
07 The items that were currently available to us
08 were items number 61 through 71.
09 Q Do you have any knowledge, Ma'am, of which
10 items those are?
11 A I have some references to what they are. I
12 don't have any absolute knowledge as to what they are or
13 where they came from. I know what they're listed as.
14 Q What are they listed as?
15 A Okay. Item number 61, I believe, is a
16 handgun.
17 Q A handgun?
18 A A handgun, yes.
19 Q Let me just ask you this.
20 Item 61 through 71 --
21 A Um-hum.
22 Q -- Is it your belief based on the information
23 you have at hand that none of those items contains blood
24 evidence?
25 A I'm not sure because some of those items were
26 recovered by detectives, I believe, and there's
27 indicated I know on there -- some sheets and
28 pillowcases and a towel with a broken glass, so I have
0016
01 no idea at this time.
02 Q Is it your information that some of those
03 items listed in 61 through 71 came from Chicago?
04 A That's what I presume based on what they
05 are. That's my -- assuming the detectives collected
06 them because most everything else that is available to
07 us was collected and booked by our criminalists.
08 Q As a matter of protocol, let me ask you
09 something for purposes of clarity, Ms. Kestler.
10 Where can evidence be booked? Are there two
11 places where they can go?
12 A Well, there's many areas. The Los Angeles
13 Police Department has several property rooms, including
14 one that is adjacent to the crime laboratory and one
15 that is in Parker Center, as well as one in many of the
16 area stations. And evidence can be booked at any one
17 of those locations.
18 Q Now, the items that you have, in fact,
19 evaluated for the purpose of this hearing, where were
20 they?
21 A They are all booked at Piper Technical Center.
22 Q Which is adjacent to your laboratory?
23 A That's correct.
24 Q The items that you were not able to examine,
25 where are they?
26 A They are booked and sealed in a vault at
27 Parker Center.
28 Q So item 61 through 71, you were not able to
0017
01 look at.
02 A And also items 88 through 90.
03 Q What about items 73 through 81?
04 A 73 through 81, we have those items but we just
05 received those late Friday and have not been able to
06 evaluate them.
07 That is the coroner's evidence. Some we
08 evaluated. The clothing we could not at this time.
09 Q The coroner would not release them to you
10 until last Friday?
11 A That's correct.
12 Q Was that, if you know, in order to accommodate
13 the defense in examining the evidence first?
14 A That's what we were told, yes.
15 Q And items 88 through 90?
16 A Those are booked at Parker Center, and I
17 believe those are from Chicago, based on the property
18 report.
19 Q Those were not looked at?
20 A No.
21 Q Items 91 through 93?
22 A Those were just recovered in conjunction with
23 a search warrant that was served on 6/28, and they were
24 booked late yesterday so we have not had a chance to
25 review those items.
26 Q 91 to 93, weren't those --
27 A I'm sorry, 91 through 93 were recovered from a
28 Bronco, but they were also just recovered yesterday.
0018
01 Sorry.
02 Q In other words, was other testing being
03 performed on the Bronco?
04 A As far as I know it was, and then there was
05 some indication that there was possibly another search
06 for evidence that they didn't want to make in the
07 beginning, and so they went back the second time to look
08 at the vehicle.
09 Q But the vehicle remained in police custody?
10 A As far as I know, yes.
11 MR. SHAPIRO: Your Honor, may I suggest to the
12 court that leading questions not be asked of this
13 witness unless absolutely necessary?
14 MS. CLARK: Your Honor, this is an expert witness
15 who has the reports in front of her.
16 THE COURT: Expert testimony is not subject to the
17 leading question objection.
18 However, at this point in time I don't believe
19 she's actually giving you expert opinions. She's
20 rather giving information concerning the specific items
21 of a background nature.
22 The objection at this time is sustained.
23 I mean, I ask you to please -- with regard to
24 her expert testimony, obviously she can -- you can ask
25 leading questions, but on these foundational matters, I
26 would prefer if you could refrain from asking leading
27 questions.
28 \ \
0019
01 BY MS. CLARK:
02 Q Items 94 through 106 -- excuse me, 109, have
03 you looked at those items yet?
04 A No. Those were recovered pursuant to a
05 search warrant on 6/28, and booked yesterday at Piper
06 Technical Center, but we have not had a chance to review
07 them for physical evidence.
08 Q And 110 through 113?
09 A Those were items booked yesterday also at
10 Piper Technical Center, and those were items that were
11 recovered from other items already booked, and they are
12 trace evidence items.
13 Q Are those hairs that were recovered from
14 something else?
15 A They are evidence including hairs and fibers
16 recovered from property items, and I can tell you what
17 those are one at a time.
18 For example, item 110 was recovered from item
19 9. Item 111 was recovered from item number 27.
20 Q Wait. Item 110 --
21 A Was recovered from item number 9.
22 Q What is item number 9?
23 A Again, I'll refer to my notes.
24 I believe it's a glove.
25 Q And item 110, what kind of evidence is that?
26 A Yes. Item number 9 is a leather right-hand
27 glove.
28 MR. SHAPIRO: Excuse me, Your Honor.
0020
01 THE COURT: Yes.
02 MR. SHAPIRO: We have not received a list of
03 inventory items beginning at 91 for which testimony is
04 being offered this morning.
05 THE COURT: All right.
06 The document that was provided to me, does the
07 defense have that summary as well?
08 MS. CLARK: I intended to give the copy that the
09 court has to the defense. If the court can allow us --
10 THE WITNESS: I have another copy.
11 MS. CLARK: We have another copy.
12 THE COURT: Please.
13 MS. CLARK: This information is contained in other
14 discovery, but the list that is compiled was just
15 compiled by this witness for her testimony. The
16 information is all in possession of the defense,
17 Your Honor.
18 THE COURT: All right.
19 MR. SHAPIRO: Your Honor, that simply is not
20 true. We don't have any information about what was
21 recovered yesterday.
22 MS. CLARK: No, this is not pertaining to items
23 that were recovered yesterday. The witness is
24 testifying to items that were recovered some time ago
25 from other evidence.
26 This witness is describing right now trace
27 evidence that was recovered from items that were seized
28 from the crime scene, and the defense is in full
0021
01 possession of that information.
02 MR. SHAPIRO: Your Honor, my recollection of the
03 testimony of this witness is items 94 through 109 refer
04 to items seized yesterday from a search warrant. We
05 have not received any of this information. We asked
06 for it yesterday.
07 MS. CLARK: Your Honor, we didn't -- the people
08 didn't have the information either, and none of the
09 items seized yesterday will be the subject of any
10 testimony in this hearing because no one's had a chance
11 to look at it yet, it was so recently seized, and the
12 property reports are presently being compiled. All
13 this witness did was write down the numbers.
14 There's been no attempt -- no time to look at
15 those items for any purpose whatsoever. The property
16 report that will be put together with the return to
17 search warrant will be given to counsel as soon as the
18 people get it.
19 At this time I just asked the witness to jot
20 down the item numbers so it could be indicated to
21 counsel what has or has not been looked at for future
22 purposes.
23 THE COURT: All right.
24 So for purposes of the hearing today, no
25 determination whatsoever as to sufficiency of samples
26 regarding items that were recovered and the execution of
27 the search warrant a couple of days ago is being
28 offered; correct?
0022
01 MS. CLARK: None.
02 THE COURT: Okay. All right.
03 MR. SHAPIRO: Your Honor, in that regard, my
04 understanding is that as soon as the search warrant is
05 executed, a return to the search warrant must be filed.
06 And as soon as that is done, we would like to have the
07 court order immediately to have those items listed and
08 made available to us.
09 MS. CLARK: Your Honor, as counsel should be aware,
10 the police have ten days to prepare a return to search
11 warrant, at which time the property report listing what
12 has been seized is attached to that return, and the law
13 will be complied with as it has been throughout this
14 case.
15 THE COURT: Yes. They do have ten days to file
16 their return, and of course the continuing discovery
17 that is occurring in this matter does require that those
18 matters, of course, be turned over to the defense.
19 In the event that you do have that completed
20 before the ten days, I would ask you to turn that over
21 to the defense as quickly as possible.
22 MS. CLARK: Certainly, Your Honor.
23 THE COURT: All right.
24 BY MS. CLARK:
25 Q So with respect then to -- item number 110 is
26 your number for what?
27 A Item number 110 is just a number given to
28 trace evidence recovered from item number 9.
0023
01 Q And that --
02 A That was a glove, and our policy is that
03 whenever we recover trace evidence, that rather than
04 just putting it in a bindle or a bundle with the
05 original item, we book it as a separate item number.
06 Now that evidence was all viewed by the
07 defense in my presence on the 24th of this month. They
08 saw this. It just had not had an item number assigned
09 to it at the time.
10 Q And the trace evidence you're talking about is
11 number 110, which was viewed by the defense last week,
12 was what?
13 A Hairs and fibers.
14 Q Recovered from a glove?
15 A Recovered from item number 9, the glove, yes.
16 Q And number 111?
17 A Was hairs and fibers recovered -- trace
18 evidence again recovered from item number 27.
19 Q Which was what?
20 A Item number 27, I believe, is a cap. I have
21 to keep shifting back and forth.
22 Yes, it's a cap. That was recovered from the
23 driver's floor of the Bronco.
24 Q And again, that item was viewed by the defense
25 last week as well?
26 A Yes.
27 Q And item number 112?
28 A Is trace evidence recovered from item number
0024
01 37. That is a left-handed leather glove.
02 Q And what is the trace evidence recovered from
03 that left-handed leather glove?
04 A Yes.
05 Q What is the trace evidence?
06 A It's hairs and fibers in this case.
07 Q Also examined by the defense last week?
08 A Yes.
09 Q Item number 113.
10 A Was hairs recovered from item number 38, which
11 is a blue knit cap.
12 Q Did you say that was hairs recovered from a
13 blue knit cap?
14 A Yes, a blue knit cap. And some fibers also,
15 I'm sorry.
16 Q And that was also viewed by the defense last
17 week?
18 A Yes.
19 Q So now, with respect to those hair items, I'm
20 going to come back to those later.
21 Let's go back now and address the blood splits
22 that have been requested.
23 Now, based on your training and your
24 qualifications, are you qualified to indicate to this
25 court what volume of sample is needed for each test?
26 A Basically, yes. An overall evaluation.
27 Q Now, with respect to items 1 through 60, and
28 items 82 through 87, did you make a determination as to
0025
01 whether a blood split for the defense on those -- any of
02 those items would be possible after the testing of those
03 items on all standards available would be possible?
04 A Yes. We made an estimated evaluation of the
05 samples and found that a few of them appear to be
06 sufficient for split after the whole battery of tests is
07 completed.
08 There's no guarantee until we complete those
09 tests, however, other than on the samples taken from the
10 victims and the defendant. There is plenty of sample
11 for split.
12 Q When you say "samples taken from the victims
13 and the defendant," you mean --
14 A Those are the standards.
15 Q The standards.
16 A The reference samples, the whole blood taken
17 from Mr. Simpson and the whole blood swatches, frozen
18 swatches, taken at the time of autopsy from the
19 coroner's office.
20 Q Now, can you tell us, identifying by item
21 number, which ones you determined may, after we've
22 completed the -- your testing on them, may permit for a
23 split?
24 A Certainly.
25 Item number 3, which is a cigarette butt
26 recovered from the street, would be tested, and there
27 should be plenty for a split after we're done.
28 Item number 7 is several swatches containing
0026
01 red stains recovered from a driveway, and it is
02 possible -- looks fairly good that that could have
03 enough left for a split after the testing is done.
04 Item number 12 also has several swatches of
05 different sizes, and they are fairly dark red; and
06 again, those are -- appear to be a good possibility for
07 a split after our testing is all done.
08 Q Item number 17?
09 A Item number 17, as stated before, is a
10 reference sample from Mr. Simpson, and there's plenty
11 of -- there will be plenty of that available for a
12 split.
13 Item number 42, there is again several
14 swatches, fairly medium to dark red in color, and there
15 should be enough for a split at the end of the testing.
16 Item number 44, that's possible. Those
17 appear to be very much weaker, but there are several
18 swatches and so there's a good possibility of a split on
19 that item also.
20 Number 47, there's plenty there. We have no
21 question there will be enough for a split when we're
22 done.
23 Item number 49 --
24 Q Excuse me.
25 A I'm sorry.
26 Q Can you say for certain that a blood split
27 could be provided before the testing has been completed?
28 A No, not actually. There could be
0027
01 something -- this is our best estimate, again. There
02 could be something go wrong. There may be not as much
03 white blood cells there as we need, and so we could be
04 wrong.
05 The best guess, without actually starting to
06 extract the evidence and prepare preliminary gels on it,
07 we can't tell for sure.
08 Item number 49, there should be -- again,
09 appears to be plenty available for a split when we're
10 done with our testing.
11 Item number 50 is a little weaker but has a
12 good possibility for a split after we're done.
13 Item number 57 appears to be possible for a
14 split, but after we're done testing.
15 Again, as indicated earlier, items number 72
16 and 82, blood swatches from the victims, will both --
17 plenty material available for a split after we're done.
18 Q Those are blood samples taken from the
19 victims?
20 A Reference samples. Yes. They're listed as
21 coroner's samples.
22 And those are the only items at this time that
23 we feel fairly confident that when we're done there will
24 be sufficient sample for a split.
25 Q Now, before all of the testing proposed to be
26 done on these, all of the items, has been completed, is
27 there any way to know with certainty whether any of
28 these items can be turned over -- can be split and given
0028
01 to the defense for independent testing?
02 A Not without doing the analysis, except
03 possibly on the reference samples. But without doing
04 the analysis, we don't know how much we would need and
05 therefore could not even begin to estimate how much they
06 would need to have either.
07 Q In other words, leaving aside the issue of the
08 reference sample -- which I understand the blood samples
09 we're going to have plenty of with respect to the
10 evidence samples -- is there any way to know whether at
11 this time, before the testing has been conducted, there
12 will be sufficient material left to provide a blood
13 split to the defense?
14 A No. Can't give you a definite answer, yes,
15 that there will be.
16 Q Cannot be done?
17 A Cannot.
18 Q But at this time, for sure you can rule out
19 certain items that you know would be incapable of
20 providing a split?
21 A Yes. There are many very, very small samples
22 here that may only lend themselves to one type of test
23 at best.
24 Q So the items that you've listed for us here
25 today then are possibles, but you will not know until
26 the testing has been completed?
27 A That's correct.
28 Q Now, with respect to hair evidence, did I
0029
01 inform you yesterday that the defense was making a
02 request to limit the samples of hair taken from the
03 defendant to one hair?
04 A Yes, you did.
05 Q And what was your response?
06 A Well, I was shocked at best. First of all, I
07 said, "You've got to be kidding," I think was my
08 response.
09 Q And why was that?
10 A Because it's impossible to, from one hair, to
11 make any kind of determination microscopically for a
12 reference standard from one hair to determine that's
13 similar to other hairs.
14 Q What is the standard number of hairs required
15 or the method of retrieving sample hairs from a
16 defendant in order to perform a comparison of those
17 hairs to hairs recovered from a crime scene or item of
18 evidence?
19 A The method of retrieval is such that you take
20 samples from all parts of the head: the front, both
21 sides, the crown and the back. And it's by pulling and
22 combing, because you do absolutely need some of the
23 roots if at all possible.
24 The second thing is that the recommendation in
25 several articles, including that made by the F.B.I., is
26 30 to 100 hairs, and then you take a random sample of
27 that 30 to 100.
28 So they are suggesting that 20 reference hairs
0030
01 from each of the five areas, roughly making the hundred.
02 Q Then let me ask you this.
03 How do you make sure that you don't mix hairs
04 taken from different parts of the head?
05 A That's not important. You can mix them once
06 they're taken from different parts of the head. It's
07 not -- it's just that the hair differs on different
08 parts of the head and you want to get an overall random
09 sample, and then you take those and you get an overall
10 picture of what the hair looks like, and then you
11 compare it to evidence hairs taken, because you have no
12 idea where those evidence hairs came from.
13 Q When you recover hairs from a crime scene or
14 an item of evidence left at a crime scene, you don't
15 know what part of the head that hair came from?
16 A No, you do not.
17 Q And with respect to -- as a matter of habit
18 and custom, are the hairs recovered from the head of a
19 defendant segregated by the area from which they were
20 recovered for reference purposes?
21 A We segregate them sometimes when they're
22 taken. It's not an absolute necessity. It's kind of
23 an individual choice on the examiner.
24 Q With respect to comparison and analysis of
25 hairs using the test known as P.C.R. --
26 And that's for D.N.A.; is that correct?
27 A That's correct.
28 Q -- How many hairs would be required to be
0031
01 recovered from the defendant for the purposes of
02 comparison -- comparing his hair to evidence that was
03 recovered from the crime scene?
04 A Well, for P.C.R., we usually use the reference
05 blood sample versus the crime scene hair.
06 And as far as hair, it is possible to do
07 P.C.R. on one hair root. That's the minimum you must
08 have, but there's no guarantee.
09 There's some ratios, and I don't know the
10 percentage off hand as to how many times that has to be
11 done or how many times they've been successful with one
12 hair. It all depends on how good the root is, the age
13 of the sample, et cetera.
14 Q Then for the purpose of performing comparison,
15 using the D.N.A. test known as P.C.R., would you say
16 that it was an accepted scientific practice or procedure
17 to use only one head hair, if you were going to compare
18 it that way, taken from the defendant to evidence hair
19 recovered from a crime scene?
20 Would that be an appropriate method to use?
21 A No. I wouldn't compare hair to hair for
22 P.C.R. Again, I'd use a reference whole blood
23 preferably.
24 Q Preferably.
25 But if you did, would you say it was an
26 accepted scientific practice to use only one hair from
27 the defendant for that purpose?
28 MR. SHAPIRO: Your Honor, she's asked and answered
0032
01 that question three times. She said for D.N.A. you do
02 not need any hair. You compare blood to the hair.
03 MS. CLARK: No, Your Honor, she hasn't answered my
04 question, and this goes to counsel's representation
05 concerning his -- the fact that he claims his expert
06 said we only need one to three hairs, and that's why I'm
07 inquiring as to this particular topic.
08 THE COURT: Do you understand the question?
09 THE WITNESS: Well, let me see if I can -- can I
10 try to attempt to --
11 MS. CLARK: Well, I can reframe it, actually.
12 THE WITNESS: Okay.
13 BY MS. CLARK:
14 Q Can you tell us whether it would be proper
15 scientific procedure to perform a hair comparison using
16 only one head hair from the defendant to compare to
17 crime scene hairs for any test?
18 A No.
19 Q Have you ever heard of any criminalist who
20 would advocate comparison of crime scene hairs to only
21 one hair taken from the head of a defendant?
22 A No.
23 MS. CLARK: I have nothing further.
24 THE COURT: And Mr. Shapiro, will you be performing
25 the questioning of this witness?
26 MR. SHAPIRO: Yes.
27 THE COURT: And I forgot to ask counsel before we
28 started, if you would please use the podium. There are
0033
01 no microphones at counsel table, but there is a
02 microphone at the podium and that way everyone will be
03 able to hear the questions.
04 MR. SHAPIRO: Thank you very much, Your Honor.
05 Your Honor, may I refer Court and Counsel to
06 page 14 of our discovery motion, item 29-B, which
07 basically asks for a curriculum vitae of all expert
08 witnesses. We have not received that yet.
09 THE COURT: Do you have a copy of your resume?
10 THE WITNESS: No, I don't, with me.
11 THE COURT: Would it be possible to have some -- do
12 you have that prepared at your office?
13 THE WITNESS: I believe it's in the computer, yes.
14 THE COURT: Would somebody be able to Fax it over
15 here to the building so that can be provided to
16 Mr. Shapiro?
17 THE WITNESS: No, they can't get to it. I have to
18 do it when I get back.
19 THE COURT: Mr. Shapiro, do you need that before
20 you are prepared to begin the cross-examination?
21 MR. SHAPIRO: Well, Your Honor, it would save a lot
22 of time, rather than going through all of her
23 credentials, and we'd like to examine that.
24 We may be able to stipulate she's an expert,
25 or we may want to contest that.
26 THE COURT: All right.
27 There is no one else who has access to your
28 computer who can check it?
0034
01 THE WITNESS: I can call and try. I don't know
02 who's there right now.
03 THE COURT: All right.
04 Why don't we see if we can facilitate that in
05 the quickest way possible.
06 Are there any questions that you have related
07 not to her expert opinion that -- just to the
08 foundational matters concerning certain item numbers, or
09 would it be better just to wait until we can get her
10 background?
11 MR. SHAPIRO: I think the background would be
12 important to have first.
13 THE COURT: All right.
14 MR. SHAPIRO: Thank you, Your Honor.
15 THE COURT: Okay. Then we will break at this
16 point in time.
17 If you could get that as quickly as possible,
18 I would appreciate it.
19 MR. SHAPIRO: Your Honor, may the Court and -- may
20 counsel approach the Court for purposes of scheduling
21 only?
22 THE COURT: Yes. Do you want this on the record?
23 MR. SHAPIRO: It can be on the record or off the
24 record. Just a personal reference to the court.
25 THE COURT: Then I'll see counsel in chambers with
26 the reporter.
27 MS. CLARK: Yes. All matters do have to be on the
28 record in this matter, Your Honor.
0035
01 THE COURT: Yes.
02
03 (At 9:55 a.m., a recess was taken.)
04
05 (At 10:00 a.m., the following proceedings
06 were had in chambers.)
07
08 THE COURT: All right, with regard to scheduling.
09 MR. SHAPIRO: Your Honor, my best friend's father
10 passed away the night before yesterday and the funeral
11 service and interment is today at 12:00 o'clock at
12 Hillside Memorial Cemetery.
13 THE COURT: Is that Judge Coleman or someone else?
14 MR. SHAPIRO: No. It's Michael Nasatir.
15 THE COURT: Okay.
16 MR. SHAPIRO: I would, if at all possible, like to
17 attend the ceremony. He has been my best friend
18 through college and remains the same. The service
19 starts at noon.
20 I think if we were excused at 20 minutes to
21 12:00, we would be able to make it and we could be back
22 here certainly by -- we would be back here by
23 2:00 o'clock. Possibly 1:30, but 2:00 for sure.
24 THE COURT: All right. I assume that you have no
25 objection?
26 MS. CLARK: No.
27 MR. HODGMAN: No.
28 THE COURT: Okay, that's fine.
0036
01 Any other matters?
02 MS. CLARK: Extend to Michael my condolences.
03 MR. SHAPIRO: Thank you.
04 THE COURT: So, in other words, we're all ready.
05 I mean, I have to confess, I didn't receive your motion
06 until very late and it came as sort of a surprise that
07 it came that late, but I assume that you're ready to
08 proceed on that?
09 MS. CLARK: We would like to be heard about that in
10 open court, Your Honor. We got it at ten minutes to
11 5:00.
12 THE COURT: That's about when we got it.
13 MS. CLARK: Um hum. And we will be ready to
14 proceed on it. We'll be ready to proceed with the
15 entire preliminary hearing. We are now, on all
16 matters.
17 I apologize to the Court and Counsel. I
18 completely forgot to have -- to remind the witness to
19 bring her curriculum vitae. It's a standard thing I
20 would always remind her to do, and things have been
21 pretty hectic in this case. But she'll bring it in.
22 We're ready to proceed with everything. But
23 I would like to be heard about the motion.
24 THE COURT: All right.
25 And I assume then that you remain ready to
26 proceed?
27 MR. SHAPIRO: Yes.
28 MR. UELMEN: Yes.
0037
01 MR. SHAPIRO: Your Honor, we had some difficulty
02 this morning, and only because of the mass confusion
03 that's going on, about bringing lawyers into the
04 courtroom.
05 THE COURT: Well, maybe I can clarify some of that
06 difficulty.
07 We were advised -- and I don't know where we
08 got this advice -- that there were going to be five
09 lawyers, and then this morning I was advised that
10 apparently you have six lawyers.
11 MR. SHAPIRO: Today.
12 THE COURT: Today.
13 You mean the number's going to go up?
14 MR. SHAPIRO: Yes.
15 THE COURT: Do we know how many we're talking
16 about?
17 MR. SHAPIRO: At least two more, and possibly four
18 more. Total four more, depending on what evidence the
19 people put on.
20 THE COURT: All right.
21 MR. SHAPIRO: They've already indicated there's not
22 going to be D.N.A. evidence. If that's the case, there
23 will be potentially two more and probably just one
24 more. If there is D.N.A. evidence, there will be three
25 more.
26 MS. CLARK: Is counsel referring to D.N.A. evidence
27 presented at the preliminary hearing?
28 MR. SHAPIRO: Yeah.
0038
01 MS. CLARK: None.
02 MR. SHAPIRO: So there will be one more lawyer.
03 THE COURT: Just one more lawyer?
04 MR. SHAPIRO: Yes.
05 THE COURT: And --
06 MR. SHAPIRO: That's Mr. Bailey.
07 THE COURT: Okay. I'm sure you noticed that we do
08 have certain limitations with regard to size and --
09 MR. SHAPIRO: The accommodations are perfect for
10 us.
11 THE COURT: Okay.
12 MR. SHAPIRO: Just so long as we have some
13 flexibility of getting the lawyers in. We have a
14 couple of lawyers who are just helping us with documents
15 and sorting out items of evidence.
16 THE COURT: So you're saying just one more seat is
17 all you're talking about for lawyers?
18 MR. SHAPIRO: We need one more seat for a lawyer.
19 THE COURT: For a lawyer. Which would be
20 behind -- I mean, not -- would not be at counsel table
21 but --
22 MR. SHAPIRO: If it's possible to extend or put
23 another working table in so we could have the note
24 takers -- we have two lawyers just for notes and for
25 perusing items of evidence.
26 THE COURT: We'll -- I'll have to make inquiries.
27 I don't have the answer to that.
28 MR. SHAPIRO: The second thing is we do have an
0039
01 expert in the courtroom, Dr. Barbara Wolf, who is the
02 head criminalist for the state of Albany (sic), an
03 employee of the New York State Police Department.
04 We would like her to be able to sit next to
05 Ms. Caplan at the side of counsel table just for the
06 purpose of taking notes.
07 MS. CLARK: What is her title?
08 MR. SHAPIRO: I believe she is -- she's a
09 criminalist with -- in Upstate New York for Albany. I
10 don't know her exact title.
11 THE COURT: For the police department or private?
12 MR. SHAPIRO: Police department.
13 THE COURT: Now, that's during the entirety of the
14 proceedings or just during the expert testimony?
15 MR. SHAPIRO: Just expert testimony right now.
16 THE COURT: All right. That's fine. I don't
17 have a problem with that.
18 MR. SHAPIRO: Thank you.
19 MR. HODGMAN: Your Honor, one courtesy, if I may.
20 THE COURT: Yes.
21 MR. HODGMAN: I believe I'm familiar with most of
22 the counsel on the defense side of the table and, I met
23 Mr. Uelmen this morning.
24 There is one gentleman who has not been
25 introduced to me, and I wonder if he could be identified
26 for us?
27 MR. SHAPIRO: Sure. Who do you want to meet,
28 bill?
0040
01 MR. HODGMAN: Who is that?
02 MR. SHAPIRO: The tall fellow?
03 MR. HODGMAN: The tall fellow.
04 MR. SHAPIRO: Oh, that's Skip Taft. Mr. Leroy
05 Taft. He is the personal attorney for Mr. Simpson.
06 Mr. Uelmen; myself; Mr. Bailey; possibly Mr. Dershowitz;
07 Ms. Filipi, who you know who was with your office;
08 Mr. Kardashian.
09 THE COURT: I don't want all these lawyers popping
10 up on everything.
11 MR. SHAPIRO: I don't think you'll experience any
12 problem whatsoever. We have done this during high
13 profile cases. Only one lawyer will speak, only one
14 lawyer will address witnesses, only one lawyer will make
15 objections.
16 THE COURT: I'll check about that additional table
17 and let you know.
18 I believe you were my criminal law professor
19 back at Loyola in 1974. It's been a long time,
20 20 years.
21 MR. UELMEN: Thank you.
22 MS. CLARK: I'm curious. Is that going to be one
23 lawyer for the witnesses or one lawyer for the
24 objections or one lawyer for the arguments?
25 THE COURT: Well, I think what -- you're going to
26 divide it up -- the motion, I assume, is what you're
27 handling.
28 MR. UELMEN: Yes.
0041
01 THE COURT: And if you had some expert, maybe
02 you're going to have someone else do that.
03 MR. SHAPIRO: Exactly.
04 THE COURT: But for different portions of any part
05 of the motion, there will be a designated lawyer
06 handling that aspect?
07 MR. SHAPIRO: I'm going to be the lead lawyer
08 throughout the proceedings. I will be handling the
09 majority of the witnesses. If there are other
10 witnesses that will be examined, I will notify the Court
11 as to who will be doing that.
12 THE COURT: All right.
13 MS. CLARK: That's all?
14 THE COURT: I guess so.
15 MR. SHAPIRO: The other thing, there is no
16 obligation on the part of the people, but it would help,
17 I think, speed matters along if we could get a list of
18 the order of witnesses that are going to be called, as
19 close to as possible as the people know, so we can have
20 proper exhibits here and proper documentation so we can
21 move this in the quickest manner possible.
22 THE COURT: Do you have such?
23 MS. CLARK: Mr. Uelmen called me yesterday and I
24 told him I did.
25 MR. SHAPIRO: Is that in order?
26 MS. CLARK: As close as I can get. I hate to be
27 held to that because a witness may not be available and
28 I have to juggle. But that's my proposed evidence.
0042
01 MR. SHAPIRO: You have civilian witnesses and then
02 experts and so on?
03 MS. CLARK: Yes, that's correct.
04 MR. UELMEN: Who do you plan to call?
05 MS. CLARK: Detective Ferman, Detective Phillips,
06 Detective Vannatter, Detective Lange -- Lange and
07 Vannatter are pretty overlapping. So those three, if
08 we get that far.
09 THE COURT: Is there a typed up witness list that
10 the Court could also be furnished a copy of?
11 MS. CLARK: As a matter of fact I have it on
12 counsel table.
13 THE COURT REPORTER: We would appreciate one as
14 well.
15 MS. CLARK: Sure.
16 MR. SHAPIRO: We would like to call Dennis Fung
17 on the motion, if you could have him.
18 MS. CLARK: Sure.
19 THE COURT: Also what I plan to do during the
20 course of this is to start at 9:00 o'clock, and I really
21 appreciate if everybody could be there. And I think it
22 works better when the defendant is already out before I
23 come out.
24 So we'll try to do it that way and to take, if
25 possible, just a fifteen minute break somewhere around
26 10:30, and to again start promptly at 1:30 -- with the
27 exception of today -- and to take a break somewhere
28 around 2:45, 3:00, somewhere in that neighborhood, again
0043
01 for 15 minutes.
02 It's very difficult, especially when there's a
03 lot of people involved, for everybody to get back, I
04 know, in 15 minutes. People lose track of the time or
05 they're doing things that are necessary to the case or
06 they're using the restroom or whatever it is they're
07 doing.
08 But I really want to make an effort to try to
09 do that because these 15 minute breaks can end up going
10 to half an hour, 40 minutes, and I think it just -- we
11 just lose a lot of time that's not necessary to do.
12 MR. SHAPIRO: Your Honor, if in that regard --
13 because it's next to impossible for us to leave the
14 courtroom during those breaks, and I would like to
15 remain -- if we could use the facilities in the jury
16 room for the restroom.
17 And if possible, if we could bring in a small
18 refrigerator so we could have drinks and snacks there
19 for all of us, that might just save some time.
20 THE COURT: I'll have to discuss that security-wise
21 with the bailiffs and see what they have to say about
22 it.
23 MS. CLARK: Why don't we cater it.
24 THE COURT: That sounds good as long as you share
25 the wealth.
26 MR. SHAPIRO: That is the best suggestion yet.
27 Have catered lunches for staff and attorneys.
28 MS. CLARK: Call Ma Maison. I think not.
0044
01 THE COURT: Is there anything else?
02 MR. SHAPIRO: That's all.
03 THE BAILIFF: Update on the curriculum vitae.
04 They found it on the computer and then they
05 have to print it and Fax it.
06 MS. CLARK: Are they going to Fax it to here?
07 THE BAILIFF: I don't know where they're going to
08 Fax it.
09 MS. CLARK: Can they? Is there a Fax here?
10 THE BAILIFF: We have one close by.
11 MS. CLARK: I have one in my office too. Whatever
12 you want.
13 THE COURT: You'll have to arrange that.
14 THE BAILIFF: Do you want to talk to your witness?
15 MS. CLARK: Sure.
16 THE COURT: Then as soon as we're able to have that
17 and you've had a chance maybe to look at it for a few
18 minutes, you let me know when you're ready.
19 Remind me. If it gets to be twenty to 12:00
20 and I'm not aware of it, if you could just remind me
21 because I will accommodate your obligations.
22 MR. SHAPIRO: I really appreciate that. Thank
23 you.
24 MS. CLARK: Great.
25 MR. HODGMAN: Thank you, Your Honor.
26 MS. CLARK: Thank you, Your Honor.
27
28 (Proceedings in chambers concluded at 11:05 a.m.)
0045
01 THE COURT: All right.
02 We're once again on the record in the case of
03 People versus Simpson. the defendant is present with
04 counsel, the people are represented.
05 Mr. Shapiro, I assume you do now have a copy
06 of the curriculum vitae.
07 MR. SHAPIRO: Your Honor, what I have is not a
08 curriculum vitae, but a statement of qualifications.
09 THE COURT: All right.
10 MR. SHAPIRO: We're ready.
11 THE COURT: Miss Kestler, if you'd retake the
12 witness stand.
13 You've previously been sworn and remain under
14 oath.
15 THE WITNESS: yes, your Honor.
16 THE COURT: Mr. Shapiro.
17 MR. SHAPIRO: thank you much, your Honor.
18
19 CROSS-EXAMINATION
20
21 BY MR. SHAPIRO:
22 Q Good morning.
23 A Morning.
24 Q Is that -- is it miss or Mrs. Kestler?
25 A Mrs. Or Ms., whichever, you prefer.
26 Q What do you prefer?
27 A Doesn't matter.
28 Q Miss Kestler, does your husband work for the
0046
01 Los Angeles Police Department as a detective?
02 A Yes, he does.
03 MS. CLARK: Objection, irrelevant.
04 THE COURT: Sustained.
05 MR. SHAPIRO: Your Honor, I think this goes to --
06 MS. CLARK: Motion to strike.
07 MR. SHAPIRO: I think it goes to credibility.
08 I can make an offer of proof if you would
09 like.
10 THE COURT: The objection is sustained. The motion
11 to strike is granted.
12 MR. SHAPIRO: Your Honor, may I inquire as to
13 whether or not he is, or has been assigned to the very
14 division that's investigating this case? Would that be of
15 relevance to the court?
16 THE COURT: You can ask that.
17 MR. SHAPIRO: Thank you.
18 Q What is your --
19 MS. CLARK: Same objection, your Honor.
20 THE COURT: Overruled.
21 BY MR. SHAPIRO:
22 Q has your husband been assigned to the
23 robbery/homicide division, to your knowledge?
24 A Yes, he has.
25 Q Is he still assigned?
26 A Yes, he is.
27 Q And do you personally know the two lead
28 detectives in this case?
0047
01 A I've worked for them for several years, yes.
02 Q Do you know them personally, outside of work?
03 A No.
04 Q Have you discussed this case with them?
05 A Just as pertains to the case, and evidence
06 involved in the case.
07 Q Have you discussed this case with your
08 husband?
09 A Not really, no.
10 Q You have provided us with a statement of
11 qualifications, consisting of three pages, in the form,
12 really, of check boxes.
13 Is this what you consider your curriculum
14 vitae?
15 A This is the only thing that we have used most
16 recent years. Since Prop 115, this is all I have available
17 at this time. This is what we've been considering our
18 C.V., yes.
19 Q My question is, do you consider this your
20 curriculum vitae?
21 A I have used this type of statement for years.
22 I used to spell it out in terminology, rather than have
23 check boxes. It used to look more narrative, but it didn't
24 go into much greater detail.
25 Q Prior to being employed by the Los Angeles
26 Police Department, what was your work experience?
27 A I worked for approximately five years in a
28 private laboratory, performing chemical analysis and
0048
01 biological analysis.
02 Q What part of that work consisted of D.N.A.?
03 A D.N.A. wasn't being done until the last few
04 years.
05 Q What part of that work concerned microscopic
06 comparison of hair?
07 A None, then.
08 Q What part of that work consisted of serology?
09 A Not at that time, other than my masters
10 thesis.
11 Q What part of that work consisted of
12 maintaining samples of blood?
13 A None.
14 Q What part of that work consisted of collecting
15 samples of blood?
16 A None.
17 Q What part of that work consisted of preserving
18 such samples of blood?
19 A None.
20 Q Now, you have authored one article; is that
21 correct?
22 A I authored one article, yes. I've been
23 coauthor on several others that aren't listed here.
24 Q What is the article that you have authored?
25 A It was -- I have to read the actual title.
26 "The lab goes to the lab."
27 Q When was that published?
28 A 1982.
0049
01 Q And you were the coauthor on that?
02 A Yes.
03 Q Have you authored any articles?
04 A No.
05 Q What did that article deal with?
06 A That is about clandestine laboratories.
07 Q Drug cases?
08 A Yes.
09 Q Had nothing do with do with serology?
10 A No.
11 Q Have you published or coauthored any articles
12 on serology?
13 A No.
14 Q Have you published or coauthored any articles
15 on hair analysis?
16 A No.
17 Q You indicated your training in the discipline
18 of hair. Is that how you refer to it? The discipline of
19 hair?
20 A Actually, it's -- hair's just like a fiber, so
21 I guess it would be hair and fiber analysis.
22 Q Let me refer you to page 3 of your statement
23 of qualifications.
24 A Uh-huh.
25 Q Mrs. Kestler, you list there "Courtroom
26 experience, discipline hair, 1980 through 1986;" is that
27 correct?
28 A That's correct. That's the last time I
0050
01 testified on a hair case.
02 Q Up until that point in time, you testified
03 approximately 35 times?
04 A Uh-huh, that's correct.
05 Q I don't see anything on your statement of
06 qualifications indicating testifying regarding blood, blood
07 samples or blood preservation.
08 Is your qualification statement incomplete in
09 that regard?
10 A No. It's under "Crime scene investigation and
11 preservation of evidence" on page two.
12 I have testified approximately 55 times in
13 crime scene investigation and preservation of evidence.
14 And in each of those cases, or almost all of those, had to
15 do with blood preservation and obtaining sufficient sample
16 for analysis purposes.
17 Q When was the last time you testified in a
18 court of law regarding the amount of a sample necessary for
19 preservation for later analysis?
20 A Oh, let's see, probably about 19 -- let's see,
21 when did I prepare this. Actually, the date changes
22 automatically, so last time I testified, and that was
23 probably about 1988, '86.
24 Q Do you recall which it was? '88 or '86?
25 A No, I don't recall, I really don't recall the
26 year. So, sometime between 1982 and now, but only once or
27 twice since then, because I've been in management most of
28 that time.
0051
01 Q How many times have you testified since 1976,
02 regarding the amount of blood that is necessary to preserve
03 a sample for later analysis?
04 A Between 30 and 55 times. Almost all those
05 cases listed on page 2, that refer to a crime scene
06 investigation and preservation of evidence, are dealing
07 with blood.
08 Q And you were specifically asked the amount of
09 blood necessary to be preserved for later analysis; is that
10 your testimony?
11 A I'm not sure if that was exactly what was
12 questioned, no.
13 Q In fact, that was never asked of you before
14 today; isn't that the case?
15 A No, that's not true.
16 Q Do you recall when the last time you testified
17 to the amount of blood necessary for splitting was?
18 A I don't believe I've ever been asked to
19 testify to that.
20 Q Now, I notice in your statement of
21 qualifications that you, indeed, attended a seminar on
22 D.N.A.; is that correct?
23 A Yes.
24 Q And that was in January of 1988?
25 A That was one, yes.
26 Q and that's eight hours?
27 A That's one, yes. I've attended several which
28 are not on here. As I said, I was not prepared for this,
0052
01 so this is not up to date.
02 Q Well, it's dated the 24th, is it not, of this
03 month?
04 A As I explained, the computer automatically
05 updates it, and I did not have time to go back in. There
06 was apparently a rush to get this here, so --
07 Q Isn't that something that's standard for
08 people who testify as expert witnesses, to have a
09 curriculum vitae that is current to date?
10 A It's only required if I'm going to bring it to
11 court.
12 As I stated, I don't testify much anymore, so
13 I don't update this on a routine basis, no. I keep track
14 of my interests, and what I'm doing, but not -- I don't
15 update the c.v. all the time.
16 Q When were you notified that you were going to
17 come to court as a witness in this case?
18 A Yesterday, or perhaps the day before, late at
19 night.
20 Q When were you given information regarding this
21 case?
22 MS. CLARK: Objection, vague.
23 BY MR. SHAPIRO:
24 Q When were you given evidence regarding this
25 case?
26 A Well, I was never given evidence.
27 Q When were you aware that evidence was
28 available during this case?
0053
01 A When the case --
02 MS. CLARK: Objection, irrelevant.
03 THE COURT: Overruled.
04 You can answer that.
05 THE WITNESS: Whenever the case went down, there
06 was evidence. But again, I did not expect to be involved.
07 BY MR. SHAPIRO:
08 Q You didn't consider yourself as a potential
09 witness in this case?
10 A No, I did not.
11 Q Well, the things you haven't had time to add
12 on to your statement of qualifications, let's talk about
13 D.N.A. What additional qualifications do you have since
14 eight hours of a seminar of 1988?
15 A I have spent many, many hours with experts in
16 the field from private laboratories, including cellmark,
17 lifecodes.
18 I've attended all the American society
19 meetings from the past, since 1985, which is once a year
20 for 40 hours a week. And I would say at least two days of
21 that is always devoted to D.N.A.
22 I also have attended all the A.S.C.L.D., as an
23 A.S.C.L.D. board of directors meetings, MUST BE TWICE a
24 year for the last -- since 1985, also. And there's always
25 an update by the FBI and private laboratories on D.N.A.
26 analysis, and what is required for that.
27 AND I have been instrumental in implementation
28 of D.N.A. in our laboratory as the manager, so I'm very
0054
01 familiar with it.
02 Q Do you know who the scientist is that is
03 responsible for the D.N.A. subtypes that are being used in
04 this case?
05 A The scientist that's responsible?
06 Q Yes.
07 A The person that developed it?
08 Q yes.
09 A Individually?
10 Q yes.
11 A Not -- no, not off the top of my head. I'd
12 like to have it --
13 Q I take it you haven't read any of the books
14 that he's published on this subject?
15 A No, I have not read extensive books on the
16 subject.
17 Q I take it that you haven't taken any courses
18 that directly relate to D.N.A., in a school atmosphere?
19 A Except in college, and it wasn't -- D.N.A.
20 was, you know, barely mentioned as part of genetics and
21 microbiology.
22 Q When was that? I don't want to --
23 A That's quite all right, counsel, I'm not
24 concerned about my age here.
25 It was 19 -- probably 1970.
26 Q That was the last time you were involved in
27 any academic study?
28 A Academic study; that is correct.
0055
01 Q Now, I understand that you list as your
02 training the following things: "How to turn your work
03 group into a winning team, Los Angeles Police Department"?
04 A that's management training.
05 Q That has nothing to do with winning or losing
06 a criminal case?
07 A Not that I recall.
08 Q You've had two courses in management seminar?
09 A Actually, that's an ongoing management
10 seminar.
11 As I stated earlier, as a member of the
12 American society of crime laboratory directors, board of
13 directors, I attend the management seminars with the FBI
14 twice a year.
15 Q And you attend seminars regarding sexual
16 harassment?
17 A I've attended -- there's always an update on
18 that, believe me.
19 Q And you've gone to forensic alcohol
20 supervisors school?
21 A That's correct.
22 Q Do you consider yourself an expert in D.N.A.?
23 A Not in D.N.A. I considered myself an expert
24 in preservation, collection and evaluation of evidence for
25 all types of tests.
26 Q Do you consider yourself an expert in
27 serology?
28 A No, not in today's current serology. Again,
0056
01 evaluation, and I understand it, I can review reports, I
02 can review People's analysis. I would never try to do it
03 at the bench, but I do understand it.
04 Q Do you consider yourself an expert in the
05 comparison of hair?
06 A Yes, I do.
07 Q What scientific training have you had
08 academically, regarding the comparison of hair?
09 A well, There isn't really any academic
10 training, other than my masters program and private courses
11 in criminalistics, involved comparison of hair, and also
12 the Mc Crone school hairs and fibers, that's one of the
13 academic courses.
14 And I've been trained as to on-the-job
15 training by the FBI, as to hair and fiber analysis.
16 Q Are you familiar with a gentleman by the name
17 of Dr. Henry Lee?
18 A Yes, I am.
19 Q Can you tell us who he is?
20 A He is a forensic scientist out of Connecticut.
21 Q Do you have an opinion regarding his
22 qualifications in this area?
23 A Not in hair examination, I have no idea.
24 Q What about as a forensic scientist?
25 A I don't know if henry actually does any bench
26 work anymore, or if he's like myself, and he advises and
27 oversees and reviews work, and evaluates evidence.
28 But other than that, I know he's like myself.
0057
01 He used to do a lot of bench work. I consider himself -- I
02 considered at that time that what he was doing, as well as
03 what I was doing, him to be an expert. He is also a member
04 of all the associations that I'm member of.
05 Q Is he a member of any organizations that
06 you're not a member of?
07 A I don't know.
08 Q Have you seen his 50 page curriculum vitae
09 recently?
10 MS. CLARK: Objection, your Honor. Counsel is
11 testifying. That's hearsay. We have no evidence of that.
12 If counsel wants to put it into evidence and
13 call Dr. Lee, that's fine, but --
14 THE COURT: the Objection is sustained.
15 BY MR. SHAPIRO:
16 Q If Dr. Lee is of the opinion that you only
17 need one hair for D.N.A. testing, would you agree or
18 disagree with that? Yes or no?
19 MS. CLARK: Objection, irrelevant.
20 THE COURT: Sustained.
21 MR. SHAPIRO: I'd like to now, your Honor, direct
22 the court's attention, and the prosecutor'S attention, to
23 the list of evidence.
24 I would like to, painstakingly as it may be,
25 go through each item, to see what tests were done, what
26 tests are anticipated, and what the amount of sample is,
27 and how much remains.
28 MS. CLARK: Objection, irrelevant.
0058
01 THE COURT: I don't think it's irrelevant.
02 However, do you have that information at your
03 fingertips?
04 THE WITNESS: I'm sorry. Could you repeat what
05 you --
06 BY MR. SHAPIRO:
07 Q You testified there are 60 items of evidence.
08 I'd like to first direct your attention to the items of
09 evidence that relate to blood.
10 And I would like to review with you each one
11 of these items of evidence, what tests have been performed
12 at your laboratory to date, and what tests you anticipate
13 performing in the future, so the judge can make a
14 determination as to whether or not we will be able to
15 perform the exact same tests.
16 MR. SHAPIRO: What we would like, your Honor, is
17 this: If they have done serology and D.N.A., and there
18 still remains a sample, we would like to do serology and
19 D.N.A.
20 THE COURT: I think I understand where you're going
21 with this. You want to know how much of a sample remains?
22 MR. SHAPIRO: Exactly.
23 THE COURT: And what tests have been done. And if
24 no tests have been done, you want the know that also?
25 MR. SHAPIRO: Correct.
26 THE COURT: Okay.
27 MS. CLARK: Your Honor, I think that perhaps it
28 would be a lot more efficient if counsel would simply look
0059
01 at the documents he was given today, which indicate exactly
02 what tests have been done and not done.
03 And with respect to having the court determine
04 whether or not further testing should be done, or whether
05 sufficient volume exists to provide a split at this point
06 in time, as to any piece evidence, how could the Court do
07 that? That's a matter of expert opinion.
08 THE COURT: Well, that is correct. And my
09 understanding is that apparently the defense intends to
10 present some expert testimony on that issue.
11 MS. CLARK: Well, that was not my understanding.
12 And I expressly asked Mr. Uelmen last night, when he called
13 to ask me what the order of witnesses would be. I asked
14 him what witnesses he intended to call today, and he
15 informed me there were none.
16 THE COURT: Mr. Shapiro.
17 MR. SHAPIRO: your Honor, I think we will be able
18 to satisfy the court, from this witness, through our
19 cross-examination, that the tests that have been done,
20 samples remain. And those samples would be enough to
21 duplicate those tests in almost every area.
22 THE COURT: WELL --
23 MS. CLARK: In other words, counsel is indicating
24 that he is not going to call any witnesses, expert or
25 otherwise, pertaining to this blood split issue.
26 Is that the case?
27 THE COURT: That seems to be the general import of
28 what you're saying; is that correct?
0060
01 MR. SHAPIRO: Your Honor, that is a general import.
02 Obviously, we have the right to call witnesses. We do not
03 anticipate calling witnesses.
04 But as the court well knows, depending on the
05 answers that are given, we'll make that determination at an
06 appropriate time.
07 MS. CLARK: Your Honor, counsel is in possession of
08 the information he is seeking, in the list that was
09 provided to him this morning. It indicates what tests have
10 been performed.
11 If counsel needs to inquire further, as to
12 what tests are planned, that could be done collectively, as
13 opposed to item by item.
14 THE COURT: well, I'm not going to tell counsel he
15 has to examine in a collective fashion. you can go item by
16 item.
17 If you have this particular information, it
18 might be helpful if the witness has it also, to refer to
19 it. Because there's so many items by number.
20 I don't want to get into the results, however,
21 of any of these tests.
22 MR. SHAPIRO: I will not ask the results. That is
23 not my intention, your Honor.
24 THE COURT: All right. You may proceed.
25 MR. SHAPIRO: Thank you.
26 Q may I direct your attention to item number 1.
27 Just let me know when you have an opportunity to focus on
28 it.
0061
01 A I'm fine.
02 Q Item number 1 contains two bindles?
03 A No, it contains two swatches.
04 Q Two swatches?
05 A I'm sorry. Item 1 is one bindle containing
06 two swatches. And item 1-C is a swatch, which is just a
07 control sample.
08 Q So, you would say that item number 1 has two
09 bindles, that are composed of a swatch and a control?
10 A Two -- no, that's -- I prefer to keep them
11 separate, because it will just be confusing. If we could
12 stick to item 1 and 1-C separately.
13 Item 1 contains two swatches.
14 Q And was any analysis done on item 1?
15 A Not yet.
16 Q How much evidence is contained in item 1?
17 A There is one swatch that's approximately two
18 millimeters square, and one swatch which is one millimeter
19 square.
20 Q Where was that found?
21 A I'm sorry. I thought we were going to deal
22 with just quantity of evidence, not location.
23 MS. CLARK: Yes, your Honor. Counsel is in
24 possession of a property report, that indicates where all
25 these items were found.
26 THE COURT: I don't think it's necessary, at this
27 point in time, to know where it's located.
28 MR. SHAPIRO: Very well, thank you. Thank you.
0062
01 Q When do you anticipate analyzing it?
02 MS. CLARK: Objection, irrelevant.
03 Counsel wants to know at this point, what this
04 witness's opinion is with respect to the availability of
05 the blood split. When the tests will be performed in the
06 future, is irrelevant to that determination.
07 I think that counsel should be confining his
08 questioning to matters that are now in issue. And that
09 would be what tests have been performed, what tests are
10 planned, and what volume she anticipates will be available
11 for the blood split, if any.
12 THE COURT: I don't think the problem -- there is a
13 problem asking about when the test is going to be
14 performed, because that, I suppose, would be relevant in
15 terms of knowing when there would be sufficient sample,
16 since the witness has indicated that apparently she won't
17 know until the tests are actually performed on any of these
18 items, whether there's going to be enough for a split, and
19 We'll just be back here again, doing this in the future, to
20 try to find out this information.
21 If she knows when the test is scheduled at
22 this point, she can tell us.
23 MS. CLARK: She --
24 THE COURT: If she doesn't know, that's fine.
25 MS. CLARK: My point is, your Honor, it doesn't
26 matter. Because with respect to all the items, the few
27 items she's indicated may be capable of providing a split,
28 she won't have the answer for that, either, until the
0063
01 testing is done. So, we're going to be back here anyway,
02 because one way or another --
03 THE COURT: I understand that. If within her
04 knowledge, at her fingertips, here on the witness stand,
05 she happens to know when a particular test is scheduled,
06 fine, she can answer that. If she doesn't, we're not going
07 to go research it anymore.
08 go ahead, Mr. Shapiro.
09 MR. SHAPIRO: Yes.
10 Q You may answer the question.
11 A We have not had a chance to get back to this
12 at this time, and schedule the testing. We spent a lot of
13 time evaluating the samples. That's about all we've had
14 time to do.
15 Q When do you anticipate testing that?
16 A Probably within the next -- they'll be either
17 sent out, or done in our laboratory, within the next -- as
18 soon as it can be arranged, probably -- depends on our
19 schedule. We have other courts, so I'd say within the next
20 three, four weeks.
21 Q what is the criteria for sending it out?
22 A It depends on whether we believe we can do it
23 in-house. Depends on what we're going to do on it.
24 obviously, if there's the R.F.L.P. that we think needs to
25 be done, it has to be sent out. We don't do it in-house.
26 Q is That the only reason you would send
27 It out?
28 A No, not necessarily. if we're going to send
0064
01 it for R.F.L.P., there's a good chance that we may decide
02 to send all of it out. again, that determination hasn't
03 been done yet. conventional serology, if it's possible,
04 would be done in-house.
05 Q What tests do you anticipate doing on the
06 sample?
07 A On this sample, it appears that, based on the
08 small size, that we would be best suited to just attempt
09 P.C.R., and possibly limit IT TO conventional. We'll try
10 as much as possible. Doesn't appear to be enough for
11 R.F.L.P.
12 Q Limited conventional refers to what?
13 A limited means We will pick the best markers
14 out of conventional serology, whatever they may be, the
15 most discriminating markers, and just do those. We
16 probably cannot do a full battery of conventional serology
17 tests.
18 Q After the serology test is done, how much of
19 that sample will be consumed?
20 A Probably most of it will be consumed. It will
21 be extracted. The extract will still remain, but the
22 sample as is, the cross squares, will be consumed.
23 Q Part of the sample will remain, however?
24 A The extract, which means someone has already
25 worked on it and developed an abstract.
26 Q Will any of the original sample be maintained?
27 A No, it can't.
28 Q After serology, you're left with just an
0065
01 extract?
02 A That's correct.
03 Q How much of the extract will be left?
04 A I have no idea.
05 Q What do you anticipate being left?
06 A It's not a volume, at that point. It depends
07 on the concentration of the sample. you can concentrate
08 that down into essentially nil. It's a concentration more
09 than it is a volume. A volume is sort of irrelevant. It's
10 more concentration of sample than volume.
11 I can go into it, and give you a gallon of
12 extract, which means nothing, Because it would be so
13 diluted, you couldn't use it.
14 Q In your opinion, is there enough material here
15 for both your laboratory to do a serology, and for a sample
16 to be given to an independent laboratory for serology?
17 A No.
18 Q So, your opinion is there will be none left
19 for any P.C.R. tests?
20 A That's not what I said. I said there wouldn't
21 be enough for us to do our work, and someone else to take
22 original sample from scratch, and do any kind of serology
23 testing, whether it's P.C.R., A.B.O. or R.F.L.P., et
24 cetera.
25 Q Let me ask you regarding this P.C.R. that is
26 a D.N.A. test?
27 A Yes, it is.
28 Q and Are there false positives in that?
0066
01 MS. CLARK: Objection, irrelevant.
02 THE COURT: Sustained.
03 I don't want to get into the evidence. just
04 See if there's been tests at this point.
05 MS. CLARK: May I make a suggestion to the court?
06 THE COURT: Yes.
07 MS. CLARK: This is going to take hours, in the
08 manner in which counsel is PROCEEDING. I don't know that
09 evidence is required to be taken in this manner.
10 Counsel could sit down with his expert, and
11 talk to this expert, who would be delighted to share all of
12 her findings with counsel, and any expert counsel chooses
13 to have with him, so that he can understand what her
14 position is. And then we can frame a stipulation as to the
15 nature of her testimony.
16 This is going to take all day, in the manner
17 in which counsel is proceeding. And I don't think it's
18 going to assist the court any, in being able to determine
19 its ruling.
20 MR. SHAPIRO: Your Honor, with all due respect, I'm
21 representing a man who is charged with two counts of first
22 degree murder, where the people may be asking for the death
23 penalty.
24 And if it takes two hours to determine whether
25 or not there will be enough of a sample for an independent
26 evaluation, where we believe samples can be contaminated,
27 where false positives are possible, and where errors can
28 take place in laboratory procedure, I don't think that's
0067
01 being excessive at all.
02 MS. CLARK: Your Honor, I take exception to the
03 manner in which counsel has characterized my response.
04 I am making a suggestion to counsel that would
05 allow him to have much more information than he is going to
06 obtain in the manner in which he is proceeding.
07 If he wants the information so that he can
08 make a determination as to how he wants to proceed with the
09 evidence, and what he wants to argue to the court, what I
10 am suggesting would allow him to learn far more than he
11 will in this manner.
12 He needs an expert at his side, so that he can
13 understand what this witness is telling him. And the
14 manner in which he is proceeding, will not permit him do
15 so.
16 So, I am actually offering him the opportunity
17 to learn a great deal more than he is at the current time.
18 I'm trying to assist counsel in being more efficient and
19 more effective.
20 MR. SHAPIRO: We certainly appreciate that.
21 THE COURT: Mr. Shapiro, you know, I'm going to
22 allow you to present your motion your way.
23 MR. SHAPIRO: Thank you. It's not going to be that
24 time consuming. We have been here since 9:30, and so far,
25 I've been allowed to ask one question.
26 THE COURT: I think you asked a few more.
27 MR. SHAPIRO: that's on the direct evidence.
28 There's 60 items, about 30 are blood. And I
0068
01 think the responses should take less than a minute. So, if
02 we don't have any further interruptions, or suggestions as
03 to how we should present our case, perhaps we can finish
04 this.
05 MS. CLARK: Excuse me, your Honor. These are not
06 interruptions.
07 THE COURT: I don't think that's necessary. Let's
08 just proceed.
09 MR. SHAPIRO: Thank you.
10 Q The next item on the blood that you have
11 LISTED, is item number 4; is that correct?
12 A Well, if you're referring to simply swatches
13 containing red stains that appear to be blood, or that
14 tested preliminary positive for blood, yes.
15 Q That's what I'm referring to.
16 A okay, number 4.
17 Q that's ITEM NUMBER 4?
18 A Uh-huh.
19 Q Would you describe ITEM NUMBER 4, please?
20 A it's One swatch that is eight millimeters
21 square, approximately square. This is all approximation of
22 these measurements.
23 Q Have any tests been conducted on that to date?
24 A No.
25 Q Do you anticipate any tests being conducted?
26 A yes.
27 Q When do you anticipate tests being conducted?
28 A My answer on the testing would all be the
0069
01 same, overall. Maybe that would help.
02 Q I'd like to limit it just to this item,
03 because this has a different quantity than the first, does
04 it not?
05 A Yes, but your battery of tests proceed in the
06 same manner. And the extract on all of them has to be done
07 first, and it's the same extract that is used for both
08 P.C.R. and R.F.L.P.
09 Q If you have no strenuous objection, if you
10 could address ITEM NUMBER 4 as a separate item, I think
11 that would be helpful for us.
12 A Okay, that's fine. I was just trying to make
13 it less confusing for everyone.
14 Q Thank you.
15 A Could you repeat where we are?
16 Q Do you recall the question?
17 A No, I do not.
18 Q Regarding ITEM NUMBER 4, do you anticipate
19 doing blood tests on this?
20 A Yes.
21 Q What blood tests do you anticipate doing?
22 A It appears to be enough to do -- we hope to do
23 both P.C.R., some conventional serology, and possibly
24 R.F.L.P., which would consume the sample.
25 Q If you just did serology, would there be
26 enough of a sample left for an independent laboratory to
27 conduct a serology test?
28 A Well, serology to me includes D.N.A.,
0070
01 serology, D.N.A., are PART OF IT.
02 ARE you talking about conventional serology?
03 Q Let's get our terms correctly. Conventional
04 serology is blood typing, is that correct?
05 A conventional serology is markers, genetic
06 markers, that is D.N.A., if you will. They're all genetic
07 markers.
08 Q Let's start with the first test you would
09 anticipate doing, and use your terms as to what test that
10 would be.
11 A I'm assuming -- What I think we would do here
12 first, would be to attempt to do D.N.A., and then if
13 there's any remaining, do conventional serology.
14 Q If you did D.N.A. first, do you anticipate --
15 is there enough to do D.N.A.?
16 A I indicated that R.F.L.P., which is the most
17 consuming sample consuming D.N.A., as opposed to P.C.R.,
18 which requires less sample, that we would consume the
19 sample.
20 Q You haven't done R.F.L.P. on anything yet,
21 have you?
22 A No.
23 Q Let's go over what you've done so far.
24 So far, you've done serology on samples and
25 you've done P.C.R. on samples; is that correct?
26 A That's correct.
27 Q Do you anticipate doing serology on this
28 sample? Yes or no?
0071
01 A only if there's a sufficient sample.
02 Q Do you know, as an expert witness, whether or
03 not the quantity you have is sufficient sample for
04 serology? Yes or no?
05 A As I indicated before, if we only did
06 serology, yes, there's probably enough there to do only
07 serology. But we would anticipate to do R.F.L.P. first.
08 Q Would you please answer my QUESTION.
09 MS. CLARK: Objection. Counsel IS argumentative.
10 The witness is attempting to answer HIS question.
11 THE COURT: Ask your question again, Mr. SHAPIRO.
12 BY MR. SHAPIRO:
13 Q Do you have enough of a sample to do standard
14 serology? Yes or no?
15 A It appears we do.
16 Q If you did standard serology, would there be
17 enough of a sample remaining for an independent laboratory
18 to do serology?
19 MS. CLARK: Objection, irrelevant, your Honor.
20 Your Honor, This is the point. We intend to
21 perform serology, R.F.L.P., P.C.R., poly markers, every
22 test available on each piece of evidence. and The only
23 relevant question is whether, after the completion of all
24 those tests, there will be sufficient evidence left for a
25 split.
26 THE COURT: The objection is sustained.
27 MR. SHAPIRO: may I be heard, your Honor?
28 THE COURT: Yes.
0072
01 MR. SHAPIRO: Based on the records we have
02 received, the following tests have been done --
03 THE COURT: Have already been done?
04 MR. SHAPIRO: Have been done by L.A.P.D.: serology
05 and a D.N.A. test known as P.C.R. They have done no other
06 tests. I've asked the witness this, and she has
07 acknowledged that.
08 What I would like to establish, for the
09 record, is this: For those that have not been done yet,
10 just go piece by piece, if you do serology, would there be
11 enough for us to Do serology. If you do P.C.R., would
12 there be enough for us to do P.C.R. If you do other tests,
13 would there be enough for us to do other tests, to make a
14 record. Because if these samples are consumed, and we
15 want to contest the fact that possibly exculpatory evidence
16 existed, that we were deprived the opportunity of
17 exploring, that should be part of the court record.
18 MS. CLARK: Your Honor, it is irrelevant to our
19 consideration. That is exactly the point I don't think
20 counsel understands.
21 We have a battery of tests to which this
22 evidence will be subjected. The question to be answered is
23 whether or not, after the tests are completed, there's
24 sufficient for a split. That's the question. Not whether,
25 after each test is completed. Because counsel has no right
26 to dictate to the prosecution the manner in which a case is
27 investigated.
28 We will subject the evidence to every test
0073
01 available, and every test possible. And at the conclusion
02 of those tests, if there's sufficient left for a split, we
03 would be delighted to share it with counsel.
04 We have made that clear. this expert is only
05 here to testify as to whether or not, after the conclusion
06 of all the testing we deem appropriate, such amount will be
07 left over. That's the only thing, not after each test.
08 After each test makes no difference.
09 THE COURT: Mr. Shapiro, I agree with the
10 prosecution on this point. Because I'm not in a
11 position -- I'm not going to put myself in a position to
12 say they can or cannot perform a given test on a given
13 sample. And I don't think what's what the court's position
14 should be.
15 MR. SHAPIRO: your Honor, I want the record just to
16 be clear that we are requesting samples of all material
17 relating to blood, that have not yet been tested, for our
18 own testing. I will leave it at that.
19 THE COURT: I think that the record is clear.
20 MR. SHAPIRO: Thank you very much, your Honor.
21 MS. CLARK: Let me make the record clear, then,
22 your Honor, that I have repeatedly advised counsel that I
23 am going to make every single test ready for observation,
24 to him and to his experts.
25 Every test performed, can be observed in every
26 step of the process by his experts, at his choice.
27 And if there is some question he has, or
28 concerns about buffers or solutions being contaminated, we
0074
01 will be delighted to provide a split of any buffer or
02 solution that is being used in the conducting of any test.
03 So, counsel is going to be allowed to examine
04 every piece of evidence, observe the testing process, to
05 make sure that evidence is appropriately handled.
06 And I want to reiterate that invitation on the
07 record once again.
08 THE COURT: I think the record is clear on that,
09 also.
10 MS. CLARK: Thank you.
11 MR. SHAPIRO: Thank you very much.
12 Q The next item that blood was found is item
13 number 5; is that correct?
14 A That's correct.
15 Q have you done tests on that item, or not?
16 A No.
17 Q Next item where blood was found was item
18 number 6; is that correct?
19 A That's correct.
20 Q Have you done testing on that?
21 A No.
22 Q Next item where blood was found is item Number
23 9; is that correct?
24 A No, I believe number 7.
25 Q Number 7, okay.
26 Have tests been done on that?
27 A NO.
28 Q What about number 8?
0075
01 A No.
02 Q Was blood found on both of those?
03 A yes.
04 Q What's the next item where blood was found?
05 A Number 9.
06 Q Was testing done on that?
07 A Yes.
08 Q What was the first test that was done on item
09 Number 9?
10 A The first test, because the sample appears to
11 be very weak, was P.C.R.
12 Q Is there anything remaining of that sample?
13 A The glove gives quite a bit of positive area
14 for blood. You cannot see it. You cannot differentiate
15 how much is there, because of the leather.
16 Until we actually extract it, and work with
17 it, we don't know -- yes, there's some remaining, we don't
18 know how much.
19 Q Is there enough remaining, in your opinion,
20 for an independent laboratory to conduct their own
21 investigation?
22 A Not to split at this time, no.
23 Q Is there enough remaining for an independent
24 laboratory to conduct their investigation? Yes or no?
25 MS. CLARK: Objection, asked and answered.
26 MR. SHAPIRO: It was asked, but it wasn't answered.
27 THE COURT: Do you know?
28 THE WITNESS: Some -- well, I have to clarify
0076
01 this. If you mean -- we're not done testing. So, do you
02 mean at this time, or when we're done testing?
03 BY MR. SHAPIRO:
04 Q At this time.
05 A At this time?
06 MS. CLARK: Objection, irrelevant.
07 THE COURT: Sustained.
08 BY MR. SHAPIRO:
09 Q What additional tests do you intend to do on
10 this?
11 A We're going to do everything possible, and
12 again, until it's extracted, I believe we'll even try for
13 D.N.A. -- I mean, I'm sorry, the R.F.L.P. and D.N.A. but,
14 we're skeptical there will be sufficient there for that.
15 Q Next item I have, and correct me if I'm wrong,
16 is item 17, where blood was found?
17 A No, actually number 11.
18 Q 11 and 12, you have not analyzed yet; is that
19 correct?
20 A No -- I'm sorry 11 we did not test, 12 we did.
21 Q 12 you did test?
22 A Yeah. I didn't hear you. I almost thought
23 you didn't say 12. I thought we were going one at a time.
24 Q On 12, what tests did you perform?
25 A P.C.R.
26 Q Is there any sample left on that?
27 A Yes, there is. We're not completed with our
28 analysis yet.
0077
01 Q would there be any sample left, in your
02 opinion, when you complete your analysis?
03 MS. CLARK: Objection, irrelevant.
04 THE COURT: you're referring to completing all
05 analysis; is that correct, Mr. Shapiro?
06 MR. SHAPIRO: Yes.
07 THE COURT: Overruled.
08 You can answer that.
09 THE WITNESS: I believe I answered this earlier.
10 I felt that there would be a possible
11 sufficient amount when we're done, but we won't know until
12 we're done.
13 BY MR. SHAPIRO:
14 Q The next item where blood was found is item
15 17?
16 A Actually number 14.
17 Q There was analysis done?
18 A Yes, P.C.R.
19 Q And the sample has been depleted?
20 A Yes, it has. It was very small.
21 Q You're saying extract was saved?
22 A Yes, we saved the extract.
23 Q What does that mean?
24 A That means the portion of which you're
25 concerned about, the contamination in the extraction
26 process, or at least one of the processes involving D.N.A.,
27 P.C.R., we extract the sample. We still have the extract,
28 we don't need all the extract.
0078
01 Q Is a portion of that available for us?
02 A We're not done. We may try to do some more on
03 that, EXCLUDING poly marker, on the extract.
04 Q Do you anticipate a sample will be left for
05 us?
06 A Probably not. Again, it a very, very weak,
07 small stain.
08 Q The next item where blood was recovered?
09 A 17 is the reference blood. That wasn't found.
10 That's a reference known blood.
11 Q Next item where blood was found at the scene,
12 or at one of the crime scenes?
13 A well, item 20.
14 Q What about item 18? Shoes, was any blood
15 found?
16 A No, there wasn't any. That's the tests -- we
17 did a search for blood, and didn't find any. I didn't know
18 if we were getting into that.
19 Q The next item that you have?
20 A 20.
21 Q Has that been tested yet?
22 A No.
23 Q 21?
24 A Not tested.
25 Q 23?
26 A 22, not tested.
27 Q 23?
28 A 23, P.C.R., plus the extract remains. We
0079
01 intend to do with that as all others.
02 Q Right. Now, does a sample exist for
03 re-analysis of P.C.R.?
04 A There's a small amount of the extract, yes.
05 Q 24?
06 A No, not tested.
07 Q Next item?
08 A 25, we did P.C.R.
09 Q Is there a sample left?
10 A There's A very small amount of sample left,
11 about -- actually, this is small amount of fibers, small
12 amount of stain, that's kind of like the glove. It's
13 difficult, until we extract it, to know how strong it is.
14 Q will that be available to the defense?
15 A We don't know until we send it out for poly
16 markers. The extract will always be available. Whether
17 it's sufficient for testing, I don't know.
18 Q The next item that you recovered --
19 A 26.
20 Q -- Regarding blood?
21 That has not been tested yet?
22 A No.
23 Q Next item?
24 A 28 are some threads. The sample is so small,
25 it's not even what I consider a swatch. It's two or three
26 little cloth threads, with red stain on them. That has not
27 been tested.
28 Q Next item is 29?
0080
01 A Correct.
02 Q That has not been tested?
03 A No.
04 Q Next item 30?
05 A It's not been tested.
06 Q 31?
07 A P.C.R. only, and the extract remains. Plus
08 one small square, and we don't anticipate any of that being
09 left, except the extract.
10 Q At the present time, there remains a sample?
11 A That's correct.
12 As you can see in the column, it indicates
13 what's still there. That's your two by three millimeter
14 piece.
15 Q Next item?
16 A Item 32.
17 Q Has that been tested yet?
18 A No. There's several little threads.
19 Q Next item is item 33, carpeting?
20 A Item 33 has a -- has blood in several very
21 small areas of some pattern resembling -- resembling
22 possibly a shoe print. So, that's -- we're holding off on
23 that until we can decide how to progress and develop, and
24 look at the shoe print, as well as the blood, without
25 losing either one. We did do --
26 Q What tests have been done on that?
27 A We did separate little stain of one thread.
28 We did P.C.R.
0081
01 Q Is the same size sample available for the
02 defense?
03 A It's threads all over the carpet. It's carpet
04 with small little spatters of stain on them.
05 Q Would that be available to the defense?
06 A Not at this time. I think it's very weak.
07 And we haven't done the shoe print, either.
08 Q Item 34, you have not analyzed yet?
09 A We did P.C.R.
10 Q you did?
11 A Uh-huh; that's correct.
12 Q And is there anything left on that?
13 A There's a two by three millimeter piece, that
14 we have yet to continue with.
15 Q Is that enough for the defense to use for
16 independent analysis?
17 A I don't know, because we're not finished.
18 We're not finished on any of these, actually, except the
19 one that was consumed. We probably can't do anything more
20 on that. But we're going to attempt to, anyway.
21 Q At the present time, is there enough for a
22 sample for re-analysis?
23 A Yes.
24 Q Thank you.
25 MS. CLARK: Objection, that's irrelevant.
26 THE COURT: Sustained.
27 BY MR. SHAPIRO:
28 Q Next item?
0082
01 MS. CLARK: May I just have a continuing objection
02 to all of these questions, concerning the request for
03 whether there would be sufficient split after one or two
04 tests, before all the testing is completed?
05 AND Counsel keeps going back to this, and I'm
06 getting tired of objecting to the same thing. And the
07 court keeps sustaining it.
08 He's asking the irrelevant issue, which is
09 whether, after each test, is there going to be enough left.
10 The question is after all tests is there enough left.
11 THE COURT: Miss Clark, if you have an objection,
12 you have to make it question BY question.
13 MS. CLARK: all right.
14 BY MR. SHAPIRO:
15 Q Next item, please, with blood?
16 A Number 37.
17 Q That is a glove?
18 A it's A glove, and there are -- appears to be
19 stains on it that we have not tested yet. But, they appear
20 to be blood -- I'm sorry, they preliminarily tested
21 positive for blood.
22 Q Do you know the size of that sample?
23 A it's very small. There is a few drops.
24 Q What tests do you anticipate?
25 A as many as possible. Probably can't do
26 R.F.L.P., but we are going to certainly have it evaluated
27 further.
28 Q When do you anticipate doing that?
0083
01 A We are going to begin it early in the week,
02 probably Monday, by determining who's going to be -- who is
03 going to do what testing.
04 Q Is there a standard laboratory that L.A.P.D.
05 uses for independent testing?
06 A No, there's not. Well, there's more than one.
07 We use two or three labs for different types of testing.
08 Q For R.F.L.P., who do you use?
09 A We most often use CELLMARK.
10 Q Next item where any blood material was found?
11 A Number 41, I believe we did P.C.R.
12 Q What was the size of that sample?
13 A There is a very, very -- there's several
14 little swatches. There's three of them, but they're very
15 weak.
16 Q Do you anticipate doing any more?
17 A We are going to try to do poly marker,
18 probably. That's our hope, yes. We are going to attempt
19 to do that.
20 Q Next item?
21 A Number 42, P.C.R. has already been done.
22 Q Do you have the results of that?
23 MS. CLARK: Objection, irrelevant.
24 MR. SHAPIRO: I don't think we've gotten that yet.
25 I want to just check, just for information only.
26 Q Any sample remain --
27 MS. CLARK: Objection withdrawn.
28 THE COURT: She's withdrawn the objection.
0084
01 Do you have the result of that PCR, number 42?
02 THE WITNESS: I don't know if I have them. I DO
03 know I gave them to the defense last week, at that same
04 meeting.
05 MR. SHAPIRO: My notes don't have the accuracy of
06 that result, your Honor.
07 Q Any sample --
08 MS. CLARK: Sorry, I didn't understand.
09 MR. SHAPIRO: We'll withdraw the question.
10 Q Any sample remain of that?
11 A Yes. That's one of the ones that we're
12 hopeful, after testing, after we complete our testing, that
13 there may be some available for the defense, and -- but
14 we're not sure.
15 Q Next item?
16 A Number 44. Oh, I'm sorry. I'm starting to
17 skip to what we already did. I'm losing track in this
18 melee of samples here.
19 Number 43, there are four swatches. And out
20 of those FOUR, they're weak in color. And we anticipate
21 that the entire sample will be consumed when we're done
22 testing.
23 Q Next item?
24 A Number 44. There are several swatches, and
25 it's possible, we're hoping there may be some left when we
26 complete our analysis. We haven't done anything, we're not
27 done.
28 Q Next item?
0085
01 A Number 45, we don't anticipate any being left.
02 We have not tested it.
03 Q Next item?
04 A Number 47. We have done P.C.R. we feel that
05 there, hopefully, based on what's there now, when we're
06 done testing, that there will be some left. Can't
07 guarantee it, but looks promising.
08 Q 48?
09 A 48? Probably will not be any left when we've
10 completed. We have done P.C.R.
11 Q 49?
12 A 49, we have done P.C.R. and conventional, and
13 plan on R.F.L.P. It's ready to send out.
14 Q 50?
15 A By the way, on 49 we anticipate -- that's one
16 of those we anticipate there will be enough left,
17 hopefully, presuming everything goes well for the defense.
18 Number 50, possibly. It's a little weaker
19 than number 49, but there may be some left.
20 Q Number 51?
21 A Number 51, we haven't done anything. We don't
22 anticipate any being left, though, when we are completed.
23 Q Number 52?
24 A We've done P.C.R., and we feel that R.F.L.P.
25 will consume the sample.
26 Q Is the next number 54?
27 A Yes. Number 54 we have not done it. There's
28 several little swatches, but we feel our R.F.L.P. will
0086
01 consume the sample.
02 Q Number 55?
03 A not tested. It's very, very small. We feel
04 that there's not enough for R.F.L.P. and P.C.R. and
05 conventional, and poly marker, of course, is part of the
06 P.C.R. technique, will be all that will be done on that
07 one.
08 Q Number 56?
09 A None left, but we feel R.F.L.P. will probably
10 consume the sample. So that means R.F.L.P. and P.C.R.
11 Q Number 57?
12 A That's -- 57 is a label found on a walkway, I
13 believe. I made a separate note of this. it's difficult,
14 again, because of the label, to say how strong the stain
15 is, how much interference from the label. But assuming
16 everything goes well, there may be enough left when we're
17 done. We haven't done anything with it yet.
18 Q 59 and 60 are CORONER samples?
19 A That's correct.
20 Q does that complete the blood that's been
21 submitted to you to date?
22 A No. I also have number 72, which is coroner's
23 sample.
24 Q What else?
25 A Number 82, which is a coroner's sample.
26 Q Anything else?
27 A We have not -- any of these were in the column
28 that indicates "split," where I have written yes or no,
0087
01 that means we may do something with them.
02 Number 84-A, we've examined the nail
03 scrapings, and we think that possibly there won't be any
04 sample left when we're done. But possibly, we may be able
05 to do P.C.R., and one or two conventional tests.
06 And 84-B, these are the left and right-hand
07 nail scrapings. Same thing, 84-C, the nail clippings,
08 there won't be any left, but we may be able to do P.C.R.
09 and conventional.
10 Number 84-D are the right hand nail clippings.
11 and There may be enough -- it's even questionable there may
12 be enough there to do our R.F.L.P., but we don't anticipate
13 there being anything left when we're done.
14 number 85-A are some scrapings we received
15 from the coroner, that they scraped. We'll have to refer
16 to their report. We believe we can do P.C.R. and
17 conventional. Again, we don't anticipate enough being
18 left.
19 And 85-B are some scrapings, again, and
20 anticipate P.C.R., possibly some conventional. And don't
21 anticipate any being left over for the defense.
22 Q Does that complete the blood?
23 A At this time -- At this time we have not
24 looked at -- like I indicated -- as I indicated earlier in
25 my testimony, we have not examined some of the evidence
26 that was recently collected.
27 Q May I direct your attention now to the hair
28 samples?
0088
01 A Sure.
02 Q first one you refer to is item Number 9, the
03 gloves.
04 A Item Number 9, there's hairs removed from item
05 Number 9, which are item number 19 and item number 110.
06 Q have you made a determination as to the origin
07 of those hairs?
08 A No, we have not. We don't have the hair
09 sample to compare those hairs to yet.
10 I'M Sorry, you just want a -- did you want a
11 body origin?
12 Q Yes?
13 A I don't have that with me. I don't know if I
14 gave that to -- it's in process. I don't know if that's
15 one of the completed reports that I brought with me last
16 night, which I know the prosecution hasn't had time to
17 review.
18 Q Have you determined those to be Caucasian
19 hairs?
20 A I can't tell you that without referring to the
21 reports.
22 Q Can you look at the report?
23 A I don't have it with me, because no one has
24 reviewed it yet, and I know you don't have it.
25 MS. CLARK: Your Honor, I was just provided this
26 this morning. This is a package for counsel, pursuant to
27 the request he made when we were last in court, and I'm
28 going to turn it over to counsel, and give him an
0089
01 opportunity to look at it.
02 I haven't seen it myself. We all just got
03 these packages.
04 So, I'd ask counsel to acknowledge receipt of
05 it on the record, and --
06 THE COURT: That package is from the crime lab?
07 THE WITNESS: Yes, it is.
08 MS. CLARK: It's from the crime lab. last time we
09 were in court, If the court recalls, I promised to turn
10 over the records requested verbally, and I just got them.
11 I ask that counsel sign where it's indicated,
12 and date it, and he can take possession of that. And I
13 hope I can get mine at some point later today.
14 THE WITNESS: Just so -- if I may interject, what
15 is not there is the protocol. We're still copying those.
16 Those are volumes, and we hope to have them early next
17 week, Monday or Tuesday.
18 MS. CLARK: If you can inform THE court what you
19 mean by protocol.
20 THE WITNESS: The protocol for D.N.A., and
21 proficiency testing for D.N.A., P.C.R., and also
22 conventional serology.
23 MS. CLARK: Does that have anything to do with the
24 results for testing conducted in this case?
25 THE WITNESS: It does, but it's not -- you haven't
26 talked -- We haven't talked about it here today.
27 MS. CLARK: No. The point being, does that --
28 that's a protocol you follow in all cases; is that right?
0090
01 THE WITNESS: That's correct.
02 MS. CLARK: not just for this case?
03 THE WITNESS: That's correct.
04 MR. SHAPIRO: Your Honor --
05 THE COURT: Yes?
06 MR. SHAPIRO: -- I wonder, based on what the court
07 indicated the schedule would be, if we might take a break,
08 so we can review these records, before we continue
09 questioning.
10 I anticipate very, very limited questions,
11 only on the remaining four hair samples, the amount. And
12 for preparation, so that the records can be looked at over
13 the break, we'd like to know the number of hairs, whether
14 they are follicles or shafts of hair, where they were
15 found, and how many of them there are.
16 MS. CLARK: Your Honor, perhaps the reports that
17 counsel has been given indicate all that, and if that's the
18 case, then --
19 THE COURT: Right. And if that information is
20 contained within what you have, you're going to have the
21 answer to that.
22 MR. SHAPIRO: If we do. If we don't, those are the
23 things that will be questioned.
24 THE WITNESS: If you haven't got the report, I
25 can't officially, because it hasn't been verified. That
26 means those items are not done yet, not completed, we're
27 still working on them.
28 THE COURT: You'll have to determine that, and
0091
01 maybe you can sort of confer, if you need, to off the
02 record, with regard to some of these items.
03 I don't think it necessarily has to be part of
04 this motion that we're doing now.
05 MR. SHAPIRO: Thank you very much.
06 THE COURT: all right. Then we'll break at this
07 time.
08 MS. CLARK: I'm sorry, your Honor. just one more.
09 we received this from GTE. it Looks like a response from
10 the subpoena duces tecum. and It been DELIVERED To me by
11 the CLERK, in a sealed condition, which is the manner it
12 was delivered to her, I take it.
13 Yes. and I'm going to ask to open it now on
14 the record, in open court, so counsel can observe the
15 opening, and the contents of the envelope. If I may.
16 THE COURT: Yes.
17 MS. CLARK: Thank you.
18 MR. SHAPIRO: Your Honor, can this be possibly be
19 done in the appropriate manner?
20 MS. CLARK: This is the appropriate manner, your
21 Honor.
22 THE COURT: I don't know that it has to be on the
23 record.
24 MR. SHAPIRO: Seems to me like a little bit of
25 grandstanding.
26 MS. CLARK: Excuse me. I can't believe I heard
27 Mr. Shapiro say that. I'd rather conduct everything on the
28 record, your Honor, in open court.
0092
01 THE COURT: Go ahead and open it. Go ahead.
02 MS. CLARK: May the record reflect I have now
03 broken the seal. Opening the envelope, and I've retrieved
04 what appears to be a one-page letter. I'm going to show to
05 counsel.
06 THE COURT: All right, miss Clark. My clerk,
07 Alicia, informs me that came, accompanied by another larger
08 packet of records, which she is holding there, which you'll
09 want to review. I really prefer that you, if possible, can
10 review those records off the record.
11 MS. CLARK: I'd been delighted to review them off
12 the record. All I want to indicate now is that they're in
13 a sealed condition, and we may open them, and duplicate
14 them for counsel.
15 THE COURT: Assuming that both sides were agreeable
16 to that.
17 MR. SHAPIRO: That is agreeable. That's the proper
18 procedure.
19 MS. CLARK: Excuse me, your Honor. I don't think
20 I've engaged in any improper procedures thus far. I don't
21 appreciate counsel's editorializing.
22 THE COURT: All right.
23 Now, today, only because of certain matters
24 that do not concern the rest of you, we are going to be
25 breaking until 2:00 o'clock.
26 I anticipate the following schedule, and I
27 assume that most of you then, advised of it. That is, that
28 the court intends to start at 9:00 o'clock and go until
0093
01 12:00, with a 15-minute break somewhere during the mid part
02 of that morning session.
03 The court intends to, under normal
04 circumstances, continue with the proceeding at 1:30, with a
05 15-minute break somewhere around 3:00 o'clock or so, and
06 concluding the proceeding at 4:30. That's what I
07 anticipate, and that's the schedule, Hopefully, that we
08 will be able to abide by, generally speaking.
09 I'm going to ask everyone's cooperation with
10 regard to the breaks we take, the 15-minute break. I would
11 very much like to see them remaining 15 minutes as opposed
12 to 20, 25 minutes, 30 minutes, 40 minutes.
13 It's really going to be up to you folks, to
14 make sure that you are back in your seats, and all the
15 necessary counsel and so forth, are back, so that we can
16 keep this matter moving along. So, I would request the
17 cooperation of everyone, so that we can handle this matter
18 as smoothly as possible.
19 At this point in time, we will be in recess
20 until 2:00 o'clock. We'll conclude this motion, hopefully,
21 shortly thereafter. And we'll begin with the other
22 motions, including the motion to suppress at that time.
23 MR. SHAPIRO: Thank you very much, your Honor.
24 MS. CLARK: Thank you, your Honor.
25
26
27 (recess at 11:40 a.m.)
28
0094
01 THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT
02 COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
03
03
04 THE PEOPLE OF THE STATE OF CALIFORNIA, )
04 ) no. BA097211
05 PLAINTIFF, )
05 )
06 VS. )
06 )
07 )
07 ORENTHAL JAMES SIMPSON, )
08 AKA O.J. SIMPSON, )
08 )
09 )
09 )
10 DEFENDANT. )
10 _______________________________________)
11
11
12 STATE OF CALIFORNIA )
12 ) SS
13 COUNTY OF LOS ANGELES )
13
14
14
15
16 I HEREBY CERTIFY THAT I AM AN OFFICIAL C.A.T.
17 COURT REPORTER OF THE ABOVE-ENTITLED COURT; THAT I DID
18 CORRECTLY REPORT THE PROCEEDINGS CONTAINED HEREIN; AND
19 THAT THE FOREGOING IS A TRUE AND CORRECT STATEMENT OF
20 PROCEEDINGS AND TRANSCRIPTION OF MY SAID NOTES.
21
21
22 DATED THIS 30th DAY OF June, 1994.
22
23
23
24 _____________________________________
24 ARNELLA I. SIMS, CSR #2896
25 OFFICIAL COURT REPORTER
25
26
26
27 _____________________________________
27 ROSE FORBESS, CSR #4853
28 OFFICIAL COURT REPORTER
28
0095
01
01
0001
01 IN THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT
02 COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
03 HON. KATHLEEN KENNEDY-POWELL, JUDGE DEPARTMENT 105
04 THE PEOPLE OF THE STATE OF CALIFORNIA, ) NO. BA097211
04 )
05 PLAINTIFF, )
05 )
06 VS. ) VOLUME 2
06 )
07 )
07 ORENTHAL JAMES SIMPSON, )
08 AKA O.J. SIMPSON, )
08 )
09 )
09 DEFENDANT. )
10 _______________________________________)
10
11
11
12 REPORTER'S TRANSCRIPT OF PROCEEDINGS
12
13 THURSDAY, JUNE 30, 1994
13
14
14
15 APPEARANCES:
15
16 FOR THE PLAINTIFF: MARCIA CLARK
16 WILLIAM HODGMAN
17 DEPUTIES DISTRICT ATTORNEY
17
18
18
19 FOR THE DEFENDANT: ROBERT SHAPIRO
19 PRIVATELY RETAINED COUNSEL
20
20
21
21
22
22 SPECIAL CIRCUMSTANCES
23
23
24
24
25
25
26 ARNELLA I. SIMS, CSR #2896
26 ROSE FORBESS, CSR #4853
27 OFFICIAL COURT REPORTERS
27
0002
01 EVIDENCE MOTIONS
01
02 I N D E X
02
03
03 PEOPLE'S WITNESS(ES): DIRECT CROSS REDIRECT RECROSS
04
04 MICHELE KESTLER 6 14 24
05
05
06
06
07
07
08
08
09
09
10
10 -O0O-
11
11
12
12 MOTION EXHIBITS
13
13
14 PEOPLE'S EXHIBIT(S): FOR IDENTIFICATION
14
15 1 - "Proceedings of the 20
15 International Symposium
16 on Forensic Hair
16 Comparisons" article
17
17 2 - "Forensic Science, an 20
18 Introduction to
18 Criminalistics" article
19
19
20
20
0003
01 PRELIMINARY HEARING
01
02 I N D E X
02
03 PEOPLE'S WITNESS(ES): DIRECT CROSS REDIRECT RECROSS
03
04 ALLEN WATTENBERG 38 59
04
05 JOSE CAMACHO 64 80 86
05
06 JOHN DE BELLO 88 97 101 103
06
07 104
07
08
08
09
09
10
10
11
11 -O0O-
12
12
13
13
14
14 EXHIBITS
15
15
16 PEOPLE'S EXHIBIT(S): FOR IDENTIFICATION
16
17 1 - BOARD WITH FOUR PHOTOS 51
17
18 2 - PHOTO 89
18
19 3 - PHOTO 89
19
20
20
21
21
0004
01 LOS ANGELES, CALIFORNIA
02 THURSDAY, JUNE 30, 1994
03 2:00 P.M.
04 -OOO-
05
06 THE COURT: Good afternoon.
07 MR. SHAPIRO: Good afternoon.
08 MR. UELMEN: Good afternoon, Your Honor.
09 THE COURT: The record should reflect the defendant
10 is present with counsel. The people are represented.
11 And I guess we can continue with the witness,
12 Ms. Kestler.
13 MS. CLARK: Yes, Your Honor.
14 May I turn over some discovery while we're
15 waiting for her to come in?
16 THE COURT: Yes.
17 MS. CLARK: Pages 539 to 614, I'm handing to
18 defense counsel now. A copy of the S.D.T.'S, the
19 originals of which I've returned to the court clerk.
20 And I'd like to indicate to the court that
21 I've given a copy to the court for review an article on
22 "proceedings of the international symposium on forensic
23 HAIR COMPARISONS." I gave a copy of this to counsel
24 this morning.
25 Specifically directing the Court's attention
26 to a page numbered 11 on it, the second paragraph, where
27 it's indicated that, "it is recommended that a known
28 hair sample -- "
0005
01 MR. SHAPIRO: Your Honor, I'm going to object to
02 reading this. This is a document that's a hearsay
03 document. It's dated June 25, 1985. I think we
04 should have some material a little more recent than nine
05 years ago. And if there is to be testimony, it should
06 come from the witness stand, not from the prosecutor.
07 THE COURT: Is Ms. Kestler prepared to testify in
08 some fashion regarding this particular document?
09 MS. CLARK: Yes, Your Honor. And I --
10 THE COURT: I'll wait until she refers to it
11 specifically.
12 MS. CLARK: As I understand the law, an expert is
13 entitled to rely on articles and periodicals and that
14 that kind of hearsay is admissible through the expert
15 testimony. And I was simply trying to assist the court
16 in directing its attention to the specific area that is
17 in question now.
18 THE COURT: All right. Thank you