PUBLIC NOTICE RE: ELECTRONIC TRANSCRIPT COPY CERTIFIABILITY
WARNING: This electronic transmission of the official transcript of proceedings is deemed certifiable only to the extent that the reader of this message is viewing a first-generation authorized transmission. All subsequent transmissions of this first-generation electronic copy and all copies printed therefrom are unauthorized and non-certifiable, and the Official Reporter assumes no responsibility for consequences stemming from the use of such unauthorized non-certifiable copy. Responsibility for such consequences is that of the person or organization whose use of a non-certifiable unauthorized transmission or printed copy creates those consequences, including civil liability arising therefrom. No portion of this file may be redistributed or resold without permission, pursuant to California Government Code Section 69954(d). Authorized certifiable transcript copies are protected by digital signature. If you would like to purchase an official transcript of the proceedings, contact NetCourt, 1316 Harding Place, Charlotte, North Carolina, 28204 or click here.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
SHARON RUFO, ET AL., )
)
PLAINTIFFS, )
)
VS. )NO. SC031947
)
ORENTHAL JAMES SIMPSON, ET AL., )
)
DEFENDANTS. )
_________________________________________)
REPORTER'S DAILY TRANSCRIPT
JANUARY 16, 1997
VOLUME 44
REGINA D. CHAVEZ, CSR #8446
OFFICIAL REPORTER
APPEARANCES:
FOR THE PLAINTIFFS: DANIEL M. PETROCELLI ESQ.,
THOMAS LAMBERT, ESQ.,
PETER GELBLUM, ESQ., and
EDWARD MEDVENE, ESQ.
Firm: MITCHELL SILBERBERG & KNUPP
11377 West Olympic Blvd.
Los Angeles, CA 90064-1663
For: Plaintiff Goldman
JOHN QUINLAN KELLY, ESQ.
330 Madison Ave.
New York, NY 10017-5090.
For: Plaintiff the Estate of
Nicole Brown Simpson
MICHAEL A. BREWER, ESQ.
Firm: HORNBERGER & CRISWELL
444 South Flower St.
Los Angeles, CA 90071.
For: Plaintiff Rufo
PAUL F. CALLAN, ESQ.
Firm: CALLAN, REGENSTREICH,
KOSTER & BRADY
One Whitehall St.
New York, NY 10004
For: Plaintiff Estate of.
Ronald L. Goldman
FOR THE DEFENDANTS: ROBERT C. BAKER, ESQ.,
MELISSA BLUESTEIN, ESQ., and
PHILIP BAKER, ESQ.
Firm: BAKER, SILBERBERG & KEENER
2650 Ocean Park Blvd., #300
Santa Monica, CA 90405-2936.
-and-
DANIEL LEONARD, ESQ. and
ROBERT D. BLASIER, ESQ.
Firm: BAILEY, FISHMAN & LEONARD.
6355 Riverside Blvd.
Suite 2-F
Sacramento, CA 95831
CHRONOLOGICAL INDEX OF WITNESSES
PLAINTIFFS' WITNESSES: PAGE
GUZMAN, ANGELICA
DIRECT (M) 2
CROSS (L) 7
REDIRECT (M) 9
RECROSS (L) 10
REDIRECT (M) 11
LEE, TERRY
DIRECT (TL) 12
CROSS(B) 28
CROSS (B) 38
REDIRECT (TL) 49
RECROSS (B) 52
POPOVICH, BRADLEY
DIRECT (TL) 54
DIRECT (TL) 85
CROSS (PB) 89
REDIRECT (TL) 129
RECROSS (PB) 138
RICHARDS, GERALD
DIRECT (G) 142
CROSS(L) 146
REDIRECT(G) 156
RECROSS(L) 158
BODZIAK, WILLIAM J.
DIRECT (M) 165
CROSS (PB) 176
REDIRECT (M) 180
Legend: (B) = Mr. Robert B. Baker
(BL) = Mr. Blasier
(BR) = Mr. Brewer
(C) = Mr. Callan
(G) = Mr. Gelblum
(K) = Mr. Kelly
(L) = Mr. Leonard
(M) = Mr. Medvene
(MB) = Ms. Bluestein
(P) = Mr. Petrocelli
(PB) = Mr. Philip Baker
(TL) = Mr. Lambert
(MO) = Ms. Molinaro
INDEX OF EXHIBITS MARKED FOR I.D.
PLAINTIFFS'
NO. DESCRIPTION PAGE
2403 Curriculum vitae of Dr. Terry Lee 15
2404 Chart 23
2061 Comparison board 166
2407 11-by-17-inch print of five 168
individuals, in addition to
Mr. Simpson, on a football field,
Marked roll 1, number 78-A
2408 11-by-17-inch print of the same 169
frame from roll 1, number 7-A, as
Exhibit 2407, but zooming in on
the legs and feet of the
individuals in the center of that
photograph, including Mr. Simpson
DEFENDANTS'
NO. DESCRIPTION PAGE
2405 Dr. Terry Lee's notes 35
1223 Two-page letter dated 2/16/95 46
2406 The McElroy price sheet 163
INDEX OF EXHIBITS RECEIVED IN EVIDENCE
PLAINTIFFS'
NO. DESCRIPTION PAGE
2403 53
2404 53
2264 141
2265 141
732 164
821 183
DEFENDANTS'
NO. DESCRIPTION PAGE
1223 53
2405 54
2406 164
SANTA MONICA, CALIFORNIA; THURSDAY, JANUARY 16, 1997
8:30 AM
DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
APPEARANCES:
(PER COVER PAGE)
(REGINA D. CHAVEZ, OFFICIAL REPORTER)
(Jurors resume their respective
seats.)
THE COURT: Good morning.
JURORS: Morning.
MR. PETROCELLI: Morning, Your Honor.
MR. BAKER: Morning, Judge.
MR. LAMBERT: Morning, Judge.
MR. MEDVENE: Morning, Your Honor.
Officer Guzman.
ANGELICA GUZMAN,
called as a witness on behalf of the Plaintiffs, was
duly sworn and testified as follows:
THE CLERK: You do solemnly swear that the
testimony you may give in the cause now pending before
this court shall be the truth, the whole truth, and
nothing but the truth, so help you God?
THE WITNESS: I do.
THE CLERK: Please state and spell both your
first and your last names for the record.
THE WITNESS: My name is Angelica Guzman,
A-n-g-e-l-i-c-a, last name is spelled G-u-z-m-a-n.
DIRECT EXAMINATION
BY MR. MEDVENE:
Q. What is your business or occupation?
A. I am a police officer for the Police
Department of Los Angeles.
Q. And were you at 360 Rockingham the
morning hours of June 13, 1994?
A. Yes.
Q. How long had you been a police officer at
that time?
A. For approximately a year and a half.
Q. How long had you been working in the
field?
A. Approximately four months.
Q. Was your assignment that morning, in
part, to watch a Bronco that was parked in front of
360 North Rockingham?
A. Yes.
Q. And what hours were you at that location?
A. I would say approximately from 7 o'clock
in the morning until about 4 o'clock in the evening.
Q. Sometime around 3:30, did you fill out an
impound report for the Bronco?
A. Yes.
Q. How many impound reports approximately
had you filled out prior to that time?
A. Approximately four or five.
Q. We're going to put on the TV monitor
what's previously been marked 271. I ask you to --
MR. MEDVENE: Let's see if we can focus it a
little bit better.
Can you go down, scan down to the bottom
of it.
(Elmo adjusted.)
Q. (BY MR. MEDVENE) Can you take a look at
the monitor, Mrs. Guzman.
Is that the inventory report that you
filled out?
A. That's correct.
Q. And is that your name and your badge
number?
A. That's my name and my serial number, sir.
Q. And Officer Thompson was with you on that
occasion?
A. Correct.
MR. MEDVENE: Now, can you, Mr. Foster, go to
the body of the report, I know there's certain Y's and
N's.
(Elmo adjusted.)
Q. (BY MR. MEDVENE) See the Y's and the
N's?
A. Yes.
Q. What does Y mean and what does N mean?
A. Y means yes and N means no.
Q. Can you move it over to the left a
little, please.
(Elmo adjusted.)
Q. You see under battery and alternator,
there's a cross in the Y column?
A. Correct.
Q. Did you put that cross there?
A. Yes.
Q. Did you notice a battery in the car on
that occasion before you put the cross there?
A. No.
Q. Under the battery it says generator and
alternator; is that correct?
A. Yes.
Q. Did you put an X under the Y column?
A. Yes.
Q. Did you observe a generator or alternator
before you put the X in the Y column?
A. No.
Q. Why did you signify yes, that the vehicle
had a battery and alternator even though you did not
see the battery and alternator?
A. I put yes because the vehicle appeared
drivable.
Q. Did you -- I notice in the next column it
says vehicle appears operable.
Do you see that?
A. Yes.
Q. And you put an X there?
A. Yes.
Q. Is that what you -- you confirm that you
thought it appeared operable?
A. That's correct, sir.
Q. Why did you think it appeared operable?
A. The vehicle didn't have any damage, it
had four wheels, there was no debris on the vehicle,
and it looked fairly clean; that's the reason why I
believed it was operable.
Q. Okay.
So if you thought the vehicle was
operable, why then would you, without knowing if it
had a battery or alternator, check yes to those
columns?
MR. LEONARD: Objection, leading, asked and
answered.
THE COURT: Overruled.
A. I made the assumption of putting yes on
the battery and alternator because the vehicle
appeared driveable.
Q. (BY MR. MEDVENE) I don't mean to
embarrass you, I also don't know where it is, do you
know where the alternator is on a vehicle?
A. It's underneath the hood, sir.
Q. Somewhere underneath there?
A. Somewhere under there.
Q. Okay.
(Laughter.)
Q. During your hours watching the Bronco as
part of your duties, did you ever enter the Bronco?
A. No.
Q. Did you ever open the hood?
A. No.
Q. Ever open the trunk?
A. No.
Q. Ever open any of the doors?
A. No.
Q. Did Officer Thompson ever open the hood?
A. No.
MR. LEONARD: Objection, lack of foundation,
calls for speculation.
THE COURT: Sustained.
Q. (BY MR. MEDVENE) In your presence, did
Officer Thompson ever open the hood?
A. No.
Q. The doors?
A. No.
Q. The trunk?
A. No.
Q. In your presence, did anyone ever open
the car?
A. No.
Q. Ever open the trunk?
A. No.
Q. Ever open the hood?
A. No.
MR. MEDVENE: Thank you very much. I have
nothing further.
THE COURT: Cross-examine.
CROSS-EXAMINATION
BY MR. LEONARD:
Q. Good morning, Officer Guzman.
A. Good morning.
Q. Is this the way -- the fashion in which
you filled out this report, is that the way they
taught you to do it at the academy?
A. I was in training at the time and I was
being taught during the course of my training, sir.
Q. Did they tell you that you could just
make assumptions about whether these parts of the car
are actually there?
A. No, sir.
Q. They told you that you had to actually
visualize that or look at it to confirm that, in fact,
those parts were there when you filled out the report,
right?
A. That's correct.
Q. So you made a mistake when you did this,
right?
A. That's correct, sir.
Q. You weren't as careful as you could have
been at filling out the report?
A. That's correct.
Q. Now, you testified to this jury that you
didn't see anyone, Officer Thompson, or anyone else,
go into that car, correct?
A. Yes.
Q. And part of your job was to be as
vigilant and careful as you could in making sure that
no one approached the car who wasn't permitted to do
so, correct?
A. Correct.
Q. And you didn't have your eye on that car
the whole time, did you?
A. No.
Q. You don't know if somebody got in that
car at some point when you weren't watching, correct?
A. Correct.
Q. And is it fair to say that you were as
careful watching that vehicle as you were in filling
out that report?
A. That's correct.
Q. Thanks.
REDIRECT EXAMINATION
BY MR. MEDVENE:
Q. Approximately how much of your -- strike
that.
Can you tell the ladies and gentlemen of
the jury whether the car was generally in your sight
during your time at Rockingham?
A. Yes, it was.
MR. LEONARD: Objection, asked and answered,
Your Honor.
(The Court reviewed real time
screen.)
THE COURT: Overruled.
Q. (BY MR. MEDVENE) Was the car generally
in your sight when you were at Rockingham?
A. Yes.
Q. If someone -- while that car --
generally -- Strike that.
You've told us the car was generally in
your sight. Did you see anyone, any officer, any
person, open up some car door and pour blood in the
car while you were there?
A. No.
MR. LEONARD: Objection, asked and answered,
and argumentative.
THE COURT: Sustained.
(BY MR. MEDVENE) Did you ever talk to anyone,
any officer, about being part of some conspiracy to
cover up the fact that some officer, while you were
there, would open up the car door, pour blood in it,
and you weren't supposed to say anything about it?
A. No.
MR. LEONARD: Same objection, Your Honor.
THE COURT: Sustained.
MR. MEDVENE: I have nothing further.
MR. LEONARD: Move to strike.
THE COURT: Stricken.
You going to ask some more questions?
(Mr. Leonard indicates index
finger.)
THE COURT: Go ahead.
RECROSS-EXAMINATION
BY MR. LEONARD:
Q. (BY MR. LEONARD) You saw Detective
Fuhrman when you arrived there?
A. Yes.
Q. You don't know if he ever entered the
car, do you?
A. No, I don't.
Q. Thank you.
REDIRECT EXAMINATION
BY MR. MEDVENE:
Q. All the times you were watching the car,
did you ever see Detective Fuhrman enter the car?
A. No.
Q. Any officer enter the car?
A. No.
Q. Thank you.
THE COURT: Okay. You may step down. You're
excused.
THE WITNESS: Thank you, sir.
MR. LAMBERT: Plaintiffs call Dr. Terry Lee,
Your Honor.
TERRY LEE,
was called as a witness on behalf of the Plaintiffs,
was duly sworn and testified as follows:
THE CLERK: You do solemnly swear that the
testimony you may give in the cause now pending before
this court shall be the truth, the whole truth, and
nothing but the truth, so help you God?
THE WITNESS: I do.
THE CLERK: Please be seated.
THE BAILIFF: Please be seated.
THE CLERK: Sir, would you please state and
spell your name for the record.
THE WITNESS: My name is Terry Lee, T-e-r-r-y
L-e-e.
MR. LAMBERT: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. LAMBERT:
Q. Good morning, Dr. Lee.
You are a Ph.D., sir?
A. Yes.
Q. When did you obtain your Ph.D.?
A. I obtained my Ph.D. degree in 1977 from
the University of Oregon.
Q. And in what field did you obtain that
degree?
A. Chemistry.
Q. And since obtaining your Ph.D., what has
been your occupation, sir?
A. I have been a research scientist.
Q. Where were you first employed after
obtaining the Ph.D.?
A. I first took a post doctoral position at
Oregon Graduate Center for a period of three years,
after which I took a position at Cetus Corporation
which is a technology company in the Bay area. And
then finally, I ended up at Beckman Research Institute
at the City of Hope.
Q. Dr. Frederic Rieders told the jury when
he was here that he's testified as an expert witness
in excess of 100 times.
MR. BAKER: Objection, irrelevant what he told
this jury.
MR. LAMBERT: I haven't asked the question.
MR. BAKER: The preamble is argumentative.
(The Court reviewed real time
screen.)
THE COURT: Sustained.
Q. (BY MR. LAMBERT) How many times,
Dr. Lee, have you testified as an expert witness?
A. This is my first time.
Q. So you are not a professional expert
witness?
A. No.
Q. If you are not a professional witness,
sir, would you tell the jury what you are, sir?
A. I'm a research scientist. I do research
and analysis of molecules by liquid chromatography and
mass spectrometry.
Q. You indicated you're now employed by the
Beckman Research Center of the City of Hope?
A. Yes.
Q. Would you tell the jury what the City of
Hope is?
A. The City of Hope is -- it's two things:
It's a national cancer treatment center, it's also a
research institute.
Q. And you're involved in the research side
of that institute?
A. That's correct.
Q. How long have you been affiliated with
Beckman Research Center with the City of Hope?
A. 14 years.
Q. Can you tell the jury what your position
is at the City of Hope?
A. My official title is research scientist.
I do studies related to the analysis of biomolecules
by mass spectrometry.
Q. You had headed the mass spectrometry
section of the Beckman Research Center?
A. Yes. Immunology has a mass spectrometry
section; I'm the head of that section.
Q. Are you familiar with the profession
known as liquid chromatography?
A. Yes, I am.
Q. One of the processes that is at issue in
this case is a cell called HPLC test. Are you
familiar with that test?
A. Yes.
Q. How long have you been involved in doing
HPLC tests?
A. Since my graduate work, so it would be in
excess of 20 years.
Q. How many times have you yourself run
tests using the HPLC method?
A. Hundreds of times.
Q. One of the other tests at issue in this
case involves the use of liquid chromatography
combined with tandem mass spectrometry using an
electrospray interface, what Dr. Rieders referred to
as LCESMSMS; are you familiar with that technology?
A. Yes, I am.
Q. How many times have you, yourself, run
tests using such technology?
A. Hundreds of times.
MR. LAMBERT: I'd like to mark as the next
exhibit in order which is --
MR. FOSTER: It's got a number.
MR. LAMBERT: No, the next exhibit in order,
which is --
THE CLERK: 2403.
MR. LAMBERT: 2403.
(The instrument herein referred to
as curriculum vitae of Dr. Terry
Lee was marked for identification
as Plaintiffs' Exhibit No. 2403.)
Q. (BY MR. LAMBERT) This is a copy of your
resume, Dr. Lee?
A. Yes, it is.
Q. Is that current?
A. Yes.
Q. According to your resume, you've written
129 articles that are listed on the resume.
Do any of those articles deal with mass
spectrometry of the type that's at issue in this case?
A. Yes. Nearly all of the articles in
recent years have been related to that particular
topic.
Q. And are any of those peer review
articles?
A. Yes. Nearly all of them.
Q. Now, have you reviewed the various tests
performed by FBI Agent Martz on certain evidence
samples from this case?
A. Yes, I have.
Q. Can you tell the jury precisely what you
have reviewed in preparation for coming here?
A. I reviewed the analyses that were
submitted to the -- to the I.G.'s -- the Court,
related to direct analyses of the samples.
There was also a set of analyses that
were termed validation studies which I believe were
not done by Agent Martz but by other people at the
FBI.
I reviewed Martz's testimony that he gave
in the criminal trial.
I reviewed Dr. Rieders' testimony that he
gave at the criminal trial.
I reviewed Dr. Rieders' testimony that he
gave in this trial.
Q. Have you been asked to determine from the
test results of Agent Martz whether or not the
evidence samples tested by Agent Martz could have come
from test tubes treated with the chemical EDTA?
A. Yes.
Q. Have you formed an opinion in that
regard?
A. Yes, I have.
Q. What is that opinion?
A. My opinion is that it could not have come
from those test tubes.
Q. Now, one of the tests that Agent Martz
performed is a test that he called a negative ion
test.
What kind of a test is that, sir?
A. That refers to negative ion mass
spectrometry. In mass spectrometry, you have the
option of looking at either positive ions or negative
ions.
In that particular analysis, Agent Martz
found no evidence that there was any contamination in
the blood samples by EDTA.
Q. When Agent Martz performed the negative
ion test, was he able to see any EDTA at all in the
evidence samples?
A. No.
Q. Have you yourself ever performed a
negative ion test?
A. Yes.
Q. Have you reviewed the results of other
persons who have performed them?
A. Yes, I have.
Q. Are you familiar with those tests?
A. Very familiar.
Q. Now, another test that Agent Martz
performed is what we've talked about earlier, this
so-called HPLC test, and would you describe briefly
what an HPLC test is?
A. HPLC is -- is short for high pressure or
high performance liquid chromatography. It separates
mixtures, and the analysis relies upon being able to
separate what you want to look for from everything
else and assign what is called a retention time to it.
The identification is based on the retention time of
the compound coming out of the instrument and the UV
absorbance signal that the detector monitors.
Q. You mentioned before you yourself have
performed many of these tests?
A. Yes, hundreds.
Q. And reviewed results of other people as
well.
Is that part of your functions as the
head of the mass spectrometry unit at the City of
Hope, to review other people's test results?
A. Yes.
Q. Now, what do Agent Martz's HPLC tests
show as to the possible presence of EDTA from a
purple-top test tube in the evidence item?
A. There was no indication at all in those
tests of any EDTA present in those samples.
Q. So both the negative ion test and the
HPLC test showed no evidence of EDTA at all?
A. That's correct.
Q. Finally, Dr. Lee, Agent Martz also
performed a so-called positive ion mode test.
What kind of test is that, sir?
A. That's a test exactly like the negative
ion test except you're looking at the positive ions
instead of the negative ions.
Q. That's another form of the LCESMSMS
testing technology?
A. That's correct.
Q. Have you yourself performed such tests?
A. Yes.
Q. How many times?
A. Hundreds of times.
Q. Have you ever reviewed the test results
of other people?
A. Yes, I have.
Q. How often?
A. Hundreds of times.
Q. Now, incidentally, Dr. Lee, are you
familiar with the equipment that Agent Martz used to
perform these tests?
A. Yes. We have the same equipment in our
laboratory.
Q. You have the very same equipment you used
in your lab?
A. It's the same mass spectrometry and the
same electrospray source, yes.
Q. Have you yourself used that equipment?
A. Yes.
Q. So you're familiar with the equipment?
A. I'm very familiar with it.
Q. When Agent Martz ran the LCESMSMS test in
the positive ion mode to determine whether he could
detect the presence of EDTA in the known sample, that
is in a sample of blood from a purple-top test tube,
was he able to detect EDTA in that testing mode?
A. Yes, he got a very strong signal for
those kinds of samples.
Q. So the EDTA was clearly present and
visible under the testing procedure?
A. Yes.
Q. Now, when Agent Martz ran the LCESMSMS
test in the positive ion mode on the evidence samples
in this case, was he able to obtain the same kind of
showing as he did when he ran the known samples?
A. No.
Q. In those tests on the evidence samples,
did Agent Martz obtain signals indicating the presence
of blood from an EDTA-treated tube in the evidence
samples?
A. No.
MR. LAMBERT: Let's put up Exhibit 2294.
(Exhibit 2294 is displayed.)
MR. LAMBERT: This isn't quite focused.
MR. FOSTER: It's too far away.
MR. LAMBERT: Yeah. This is a little bit out
of focus up here. Little more. Little more. Little
more. Well, trouble is, we want to be able to see the
whole thing.
MR. FOSTER: That's the problem.
MR. LAMBERT: Put the whole thing up. We'll
continue. I want to see the whole chart.
Q. (BY MR. LAMBERT) Can you explain to the
jury what this exhibit depicts?
A. This is a direct comparison of the -- of
one of the analyses for the blood which came from a
purple-top tube comparing that with analyses of the
evidence sample blood.
Q. This signal here, this mountain-like
signal, what is that showing us?
A. That's the signal that he got from the
EDTA blood.
Q. From -- this is the blood from the
purple-top test tube?
A. That's the purple-top test tube, yes.
Q. This small signal down here, what does
that signal --
A. That's the signal that he obtained from
the blood that came from the evidence sample.
Q. Okay.
Now, this -- this showing that he got
from the evidence sample, the small little mole hill
of a showing, in your opinion, could that showing be
reflecting blood from a purple-top test tube?
A. No.
Q. And why not, sir?
A. The intensity difference is too great.
Agent Martz, because he didn't have an internal
standard, he designed his experiment such that if
there was any errors in the quantitation, that he
would err in the right way; in other words, he would
always attempt to use more blood from the evidence
sample than he would from his positive control.
In this case, there's 100 times or more
greater intensity from blood obtained from a
purple-top tube than he would get from his evidence
sample.
So that result is inconsistent with the
blood from the evidence sample having come from a
purple-top tube.
Q. And the procedure that Agent Martz used,
is that a standard operating procedure for somebody
using these mass spectrometry machines?
A. Yes, it's a standard operating procedure
when you don't have an internal standard that you can
do exact quantitation with.
Q. And when Agent Martz did these tests, was
there an internal standard commercially available to
do these tests?
A. There was not.
MR. LAMBERT: Let's put up the next one. This
will be a new one.
THE CLERK: 2404.
(The instrument herein described
as Chart was marked for
identification as Plaintiffs'
Exhibit No. 2404.)
Q. (BY MR. LAMBERT) The one we just looked
at was for K206 or Q206 this is for Q204.
Is this the same type of chart that you
just showed us?
A. Yes.
Q. So for both of the two evidence samples,
socks and back gate, tested by Agent Martz, he got
only a trace signal from the evidence sample and some
mountainous signal from the known sample?
A. That's correct.
Q. And once again, Doctor, is it your
opinion -- what is your opinion as to whether these
little trace signals could have come from a purple-top
test tube?
A. In my opinion, they could not have come
from a purple-top test tube.
Q. Now, did Agent Martz also perform these
same tests on his own blood?
A. He did.
Q. And what results did he obtain when he
did that test?
A. He got essentially equivalent results
with his own blood as far as the trace level of EDTA
that were detected in his analyses.
Q. So when Agent Martz took out his own
blood and tested it in the machine, he got this same
little signal from his own blood?
A. That's correct.
Q. And from a scientific point of view,
Dr. Lee, could you tell us what the significance of
that is?
A. The significance, from a scientific point
of view, is that since the signal and response are the
same, that the likely source of that signal was
possibly the same.
Q. Well, Dr. Rieders testified that this
wide variation between the small signal shown in the
evidence sample and the very large signal shown in the
known sample could be the result of some error by
Agent Martz in measuring the amount of the evidence
sample.
Do you believe Dr. Rieders could be
correct in that regard?
A. No, I don't. I think that is extremely
unlikely. Blood is a colored substance, so if there
was a very large error, in this case it would have to
be larger than a -- greater than a ten-fold error,
then the solution you were sampling from would have
been colored differently. That's a difference that
you would not be able to overlook.
Q. And did Agent Martz run these experiments
more than one time?
A. He ran them several times.
Q. So if Dr. Rieders is right, would Agent
Martz have to have made the same error every time he
ran them?
A. That's correct.
Q. And I think you mentioned that Agent
Martz was intentionally trying to use more of the
evidence sample than the known sample.
Is that your understanding?
A. That's correct --
MR. BAKER: Objection, no foundation for that.
A. -- Yes.
THE COURT: Lay a foundation for that.
Q. (BY MR. LAMBERT) You read Dr. Roger
Martz's testimony?
A. It's contained in Dr. Martz's testimony
in the criminal trial.
THE COURT: Overruled.
Q. (BY MR. LAMBERT) So he was intentionally
trying to use more evidence sample than the known
sample; is that your understanding?
A. That's my understand.
Q. That's what would be standard operating
procedure for a mass spectrometer doing these tests?
A. For doing these kinds of analyses, that's
what you would do, yes.
Q. Dr. Rieders also tried to explain the
difference between the small signal from the evidence
sample and the large signal from the known sample by
saying that it was possible that the EDTA in the
evidence sample had somehow degraded before these
tests were run.
Is there any scientific literature that
supports Dr. Rieders' opinion that EDTA could degrade
so significantly?
A. None that I'm aware of.
MR. BAKER: Objection.
Q. (BY MR. LAMBERT) Do you believe that
Dr. Rieders is correct or incorrect in that regard?
A. I believe he's incorrect.
Q. Why is that, sir?
A. EDTA is a very unstable compound; it's
not likely to degrade under normal circumstances. And
these evidence samples were -- came from different
places and were treated differently; yet they all show
the same levels. And so it's difficult to imagine the
degradation that would be common to all the samples.
Q. And if Dr. Rieders was correct in his
degradation theory, how would that explain the results
that Agent Martz got in his own blood?
A. It wouldn't.
Q. As a scientist, Dr. Lee, what is the most
likely explanation for this very small trace that is
shown in the evidence sample here in this one test
that Agent Martz did?
A. These results are consistent with a
carryover from -- in the instruments. In other words,
if you first analyze on the instrument samples which
contain a large quantity of EDTA and then you
subsequently come in with the samples that don't have
any, it's not uncommon to pick up trace levels from
various parts of the instruments that have been
contaminated with the EDTA and then subsequently
alluded off when you did the other analyses.
Q. And is that a common problem with the
LCESMSMS instruments?
A. It's a common problem with those
instruments, yes.
Q. Is it something that you yourself have
experienced?
A. Many times.
Q. And is it something that other people
that do mass spectrometry have experienced as well?
A. Yes.
Q. And if people are very experienced in
doing mass spectrometry, is it something that they are
aware of is a problem with the instruments?
A. Yes.
Q. Despite, therefore, the small trace
showings that we have on this chart for the evidence
sample, are you of the opinion, Doctor, that there is
no way that those evidence samples could have come
from a purple-top test tube?
MR. BAKER: Leading, suggestive.
THE COURT: You may answer.
A. That's my opinion, yes.
MR. LAMBERT: I have no further questions.
THE COURT: Cross-examine.
CROSS-EXAMINATION
BY MR. BAKER:
Q. Good morning, sir.
A. Good morning.
Q. Now, Dr. Lee, as I understand it, you
were hired to refute the presence of EDTA in the blood
samples that came from the socks and the back gate
that was tested by Agent Martz, correct?
A. I was hired to review the data and give
an expert opinion about it.
Q. And you were -- in terms of your review,
you relied upon agent Rodger Martz, right?
A. I reviewed his data; I did not talk to
him personally.
Q. Well, you relied upon the data that he
had generated; you relied upon the testimony that he
gave at the criminal trial; true?
A. That's what I used. That's the evidence
that I looked at, yes.
Q. And you were told by Mr. Lambert here,
not to contact Rodger Martz, were you not?
A. I was told that I could not contact him.
Q. And you were told that you could not
contact Rodger Martz because the FBI didn't want to
get involved in the civil case?
A. That was my understanding.
Q. Did you know there's an FBI agent in town
waiting to testify in this case?
A. No, I didn't.
Q. Do you know that we've had two FBI agents
testify in this case?
A. No.
Q. Did you ever again ask to contact Rodger
Martz to see what his opinions were relative to
whether or not a ghost effect or cross-over could be
the reason for the levels of EDTA in the samples in
the -- from the back gate and the socks?
A. No.
Q. You were aware when you did your --
arrived at your opinions, that Rodger Martz was not
requested to find quantities in EDTA, correct?
A. He was requested to determine whether or
not there was evidence that the blood from the
evidence samples came from a purple-top tube.
Q. Next in order.
Have you ever seen the letter of
Mr. Harmon from the D.A.'s office to the -- to Rodger
Martz?
A. I don't know. If it was included in the
volumes of materials I had, yes, I saw it.
Q. It would be important for you to know
exactly what Rodger Martz was attempting to do in
arriving at your opinions and conclusions, since you
didn't do any test to determine EDTA in any sample,
correct?
A. Would you state that again? I'm not sure
I followed it.
Q. Okay. Sure be happy to.
You did absolutely no testing yourself,
correct?
A. That's correct.
Q. And you don't have -- never designed a
test to determine the presence or absence of EDTA;
correct?
A. That's correct.
Q. And you knew from your reading of
material, that Rodger Martz had never designed a test
to determine the presence or absence of EDTA in any
material; correct?
A. Prior to the work that he did, that's
correct.
Q. Okay.
And you're aware it took him a week to
design the test; correct?
A. That's correct.
Q. You're aware that when he designed this
test, he did not design it to determine quantities;
true?
A. That's partially true. He did not design
it to actively determine quantities.
MR. LAMBERT: Objection. Object to the use of
this exhibit, not being relied upon by the witness in
giving his opinion.
THE COURT: Sustained.
MR. BAKER: It's in evidence, Your Honor. It's
cross-examination of this witness.
MR. LAMBERT: It's not in evidence.
THE COURT: Show it to him.
MR. BAKER: Huh?
THE COURT: Show it to him.
MR. BAKER: All right.
MR. LAMBERT: It's not in evidence.
I object to it going into evidence.
THE COURT: He said in evidence, or -- it's not
in evidence?
MR. LAMBERT: No.
MR. BAKER: Is it in evidence?
MR. P. BAKER: I don't think that document is
in yet.
MR. LAMBERT: There's no foundation.
THE COURT: Okay. I'll sustain the objection.
Q. (BY MR. BAKER) Well, let me ask you
this:
You certainly became aware, from reading
the testimony of Rodger Martz in the criminal trial,
that he was to refute the possibility that the stain
on the socks would -- could have come from Nicole's
reference sample, sample number 59; correct?
A. It was his purpose to determine if that
was a possibility, yes.
Q. And he was also to refute the possibility
that item number 117 could have come from
Mr. Simpson's reference sample; right?
A. He was asked to determine if that was a
possibility, yes.
Q. And he was asked to make those
determinations and not to quantify at all. And, in
fact, he didn't quantify; true?
A. He did not accurately quantify the level
of EDTA in those samples; that's correct.
Q. He didn't even attempt to quantify at all
in designing his test, did he, sir?
A. Well, that depends upon what you mean by
"quantify." Any occasion, in order to draw a
conclusion, you have to have some idea about the
quantity involved; otherwise, you can't draw a
conclusion based upon whether or not it's even there.
Q. Let me read to you what you read of
Mr. Martz's testimony in the criminal trial at 38641,
lines 1 through 5.
Q. By the way, is the method
that you used, any of the methods that
you used, quantitative methods?
A. I did not specifically use
these methods to quantitate the amount
of EDTA.
That's what his testimony was, was it
not, sir?
A. That's correct.
Q. Okay.
Now, you in coming and arriving at your
opinions, are not saying that wasn't EDTA; you're
saying that the amount -- the quantity is too little;
and hence, you don't believe it came from a purple-top
test tube, correct?
A. That's correct.
Q. So you are using quantities, where
Mr. Martz, in his tests, determined -- or attempted
not to quantify anything; correct?
A. The --
Q. Well, can you answer that?
A. It's a matter of semantics.
Q. Can you answer that question, sir?
A. Yes. Could you ask it again?
Q. You are attempting to use quantity to --
in arriving at your opinion that -- that this EDTA
that was found in the samples from both the back gate
and the socks, was not EDTA from a purple-top test
tube; correct?
A. Yes.
Q. All right.
And you are fully aware that Rodger Martz
does not use quantity to make any determination
relative to EDTA, nor was he asked to; correct?
A. By the strict definition of quantitative
analysis, he was not doing that.
Q. Can you answer my question, sir?
He was not using --
A. I can answer.
I can tell you, as an expert, that I
could draw no conclusions whatsoever unless he had
some measure of the amount of material present.
Q. Now --
A. He has to know the limits of the
sensitivity, the limits of his detection, limits --
all these things he has to know, or his analysis means
absolutely nothing.
Q. And you're aware that he testified that
the levels of EDTA or -- strike that -- what he found
on the 206 and 207 was consistent with EDTA on the
back gate and the socks, correct?
A. No.
Q. Maybe we'll get that in a minute.
MR. BAKER: You want to put that up?
MR. P. BAKER: This is next in order.
THE CLERK: 2405.
MR. P. BAKER: Dr. Lee's notes.
(The instrument herein referred to
as Dr. Terry Lee's notes was
marked for identification as
Defendant's Exhibit No. 2405.)
Q. (BY MR. BAKER) Now, you said in your
notes --
MR. BAKER: Go down to outcome No. 3.
MR. P. BAKER: (Adjusts Elmo.)
MR. BAKER: Back it off, please.
Q. (BY MR. BAKER) "If detectable levels of
EDTA are found in the stains, but significantly lower
than the levels from blood in the tube, then
interpretation becomes problematic."
What you meant by that, sir, it becomes a
problem to determine the EDTA. Isn't that true, sir?
MR. LAMBERT: Objection. Argumentative.
A. No.
Q. (BY MR. BAKER) Let's go down to the next
one.
You say, if not planted -- can you read
that for us -- convincing argument must be found why
EDTA is present at that level.
A. Yes. You want me to read it?
Q. Yes, because I have trouble reading your
writing.
A. So do I.
Q. I can understand that.
A. "If not planted, convincing argument must
be found for why the EDTA is present at these levels.
Q. Now, read the next one.
A. I can't even finish that one.
Q. I'm sorry.
A. I think it's -- I don't know that word.
Q. You were attempting to find convincing
argument as to why the EDTA --
A. Oh, I think I can do it now.
One would be direct contamination from
either the environment or contamination from the lab
during the sample analysis.
Q. So you were attempting to find convincing
argument to explain away the EDTA found by Rodger
Martz, and you understood that to be your -- your --
your goal; correct, sir?
A. No, that wasn't my goal.
My goal was to understand why the trace
levels that were observed in that particular analysis
were there.
Q. Well, now, so you came up with this
ghosting or carry-over effect from the equipment,
correct?
That's your theory of why these levels of
EDTA were found by Rodger Martz?
A. Another most reasonable explanation, yes.
Q. You have no information whatsoever about
how Rodger Martz runs his lab, correct?
A. Direct information, no.
Q. And from a the available data, you can't
determine what the matrix used to dissolve the sample.
You can't determine the quantity and you can't
determine the volume equilibrium was done before the
next analysis, can you?
A. There was statements in the materials
that I reviewed with -- with regard to the matrix,
with -- with -- with regard to rough estimations about
the quantity.
I have no information at all with regard
to the exact procedures with respect to the
chromatography and the sample injection procedures.
Q. You would agree it's sheer speculation --
MR. BAKER: You can take that down.
Q. (BY MR. BAKER) -- it's sheer speculation
on your part as to whether or not there was any
ghosting or cross-over effect; true?
A. No. My opinion is based upon evidence.
Q. Well, your opinion --
A. The data that's present there tells me
something.
MR. PETROCELLI: Need a break, Your Honor for
the juror?
(Juror is coughing.)
THE COURT: Do you want to take a recess?
JUROR: I'm okay.
THE COURT: All right. You --
All right. Let's a take a ten-minute
recess.
(Recess.)
(Jurors resume their respective
seats.)
CROSS-EXAMINATION
BY MR. BAKER:
Q. You discussed in your deposition the way
to design an experiment in such a way there would be
no carryover effect?
A. Yes, we discussed those things.
Q. And you had testified that you'd have to
be very, very careful about the blank, correct?
A. That's correct.
Q. You testified that the blank would have
to be done exactly the same way the samples were done,
using exactly the same matrix, exactly the same
volume, and exactly the same procedure?
A. Yes.
Q. And if you do that, you would have
greater confidence that what you were seeing in your
samples came from what was exactly in the sample; is
that correct?
A. That's correct.
Q. And you don't know whether or not Roger
Martz designed the experiments and was very, very
careful about his blank, was done exactly the same way
as the samples were done, using exactly the same
matrix, exactly the same volume, and exactly the same
procedure, do you?
A. I know what his blanks are. I don't know
about his procedures, yes.
Q. And now, you would obviously love to talk
to Roger Martz, wouldn't you?
A. I think it would be a very interesting
conversation.
Q. Yeah.
And you testified that you'd love to, but
Tom Lambert told you couldn't?
MR. LAMBERT: Objection, argumentative,
misstates its testimony.
THE COURT: Overruled.
A. He told me that Roger Martz was
unavailable.
Q. Speaking of Roger Martz; page 17, lines 1
through 11.
(Mr. Baker read a portion of Terry
Lee's deposition transcript.)
Q. Have you ever made an effort
to contact him, to ask him whether he agreed
with your opinion?
A. I was told that he was not
available for me to contact.
Q. Who told you?
A. Tom Lambert.
Q. Did he tell you why he was not
available?
A. Well, I don't recall exactly
what he said, but the impression was that
the FBI kind of wanted to stay out of the
civil matter. I would love to talk to him.
Q. (BY MR. BAKER) That's what you testified
to?
MR. LAMBERT: Objection, improper impeachment,
it's not at all inconsistent with what he said.
THE COURT: I'll sustain that because you
asked, and he answered the same question before in the
same way.
Q. (BY MR. BAKER) Now, you were talking a
little bit during the examination by Mr. Lambert about
Roger Martz testing his own blood; do you recall that?
A. Yes.
Q. And you're aware that Roger Martz threw
away all the computer data relative to the test on his
own blood, correct?
A. That's my understanding. He threw away
all the computer data as to any of the test.
Q. No one could ever go back and see, but we
know -- you are aware that the tests that Roger Martz
ran on his own blood is icorrect, correct?
A. Incorrect in what sense?
Q. That's a poor question. I apologize.
The levels that he found in his blood is
inconsistent with life, correct?
A. If you're saying that it would be
impossible for him to have found EDTA levels at those
levels in his own blood, that is true, but he didn't
know that at the time.
Q. He was alive; he knew that, didn't he?
A. Yes. But he didn't know it was
impossible for him to have EDTA levels that high in
his own blood; he did not know that.
Q. You talked to him about that?
A. No.
There's no way I could have known.
Nobody knew it at that point.
Q. Now, it is common knowledge in the
scientific industry that there are no detectable
levels of EDTA in a normal human being's blood,
correct?
A. In the past year there have been two labs
that have designed tests to prove that point, and they
have determined that there's no detectable levels of
EDTA in anybody's blood.
Q. And so if, for example, Richard Fox were
on the stand yesterday and testified that there can be
EDTA levels in human blood, that's incorrect?
A. That's incorrect.
Q. And we know presently, of course, that
EDTA is not in human blood to the level that was found
by Roger Martz in his experiments done on the blood
samples from both the back gate and the socks, true?
A. I'm sorry. That was a long question. I
lost part of it. Could you repeat that, please.
Q. I get these notes -- I have I got an I.Q.
that's about ground level, so I have to rephrase and
think back of what I was asking you.
But -- But basically, in terms of EDTA,
the EDTA that Roger Martz found in his test from the
samples of the back gate and the socks would not be in
a normal person's blood; you would agree with that?
A. I would agree that he could not find --
he would not detect any EDTA in a normal person's
blood, that's true.
Q. If his test results were in fact
accurate, if EDTA was in both the samples from the
back gate and the socks, they had to have been
planted, if your theory is incorrect; you would agree
with that?
A. I would say there is another
possibility -- there may be another possibility, a
possibility that I haven't thought of.
Q. Well, you had a lot of time, haven't you?
A. Yes.
Q. Okay.
And your possibility, sir -- you have
absolutely no facts to substantiate that there was any
cross-over effect or ghosting effect on this machine,
true?
A. That's not a statement of the facts.
There's evidence in the data that would support that
conclusion.
Q. Your argument, as I understand it, is
because of the results, you believe that there is a
ghosting or cross-over effect, correct, kind of a
bootstrap approach, isn't it?
MR. LAMBERT: Objection, argumentative.
Q. (BY MR. BAKER) Let me just ask this
question.
MR. BAKER: I'll withdraw that.
Q. (BY MR. BAKER) Let me ask you this
question:
We've established that you certainly
don't know what Roger Martz's lab procedures are,
correct?
A. That is correct.
Q. You certainly do know that he was
requested to determine that there was no EDTA in
either the sample from the back gate or the socks,
correct?
MR. LAMBERT: Objection, asked and answered.
A. That's not my understanding, no.
Q. (BY MR. BAKER) He was given the job to
refute any EDTA in the back gate or the sock samples,
wasn't he?
MR. LAMBERT: Objection, argumentative, Your
Honor, been asked and answered as well.
THE COURT: You may answer if you know.
A. I don't think the word "refute" is
correct. I think he was asked to determine whether or
not that was a possibility.
MR. LAMBERT: I still object to any use of this
letter. There's no foundation for it.
THE COURT: Sustained.
MR. BAKER: I'll lay a foundation. I'll tie it
up if I have to get Rockne Harmon to come in here,
Your Honor. This was an exhibit in the criminal
trial.
MR. LAMBERT: Your Honor, Roger Martz was a
witness in the criminal trial.
He's not a witness in this trial.
There's no foundation.
MR. BAKER: Your Honor, in that regard, all of
this testimony is relative to what Roger Martz did.
This witness didn't do any experiments, didn't do
anything except look at what Roger Martz said, and if
you give me a minute, I think I'll go over and find
that letter.
Phil, look up Roger Martz's testimony and
find that letter because I think this gentleman has
already read it.
Q. (BY MR. BAKER) If you read that
testimony there's a lot of it. I can understand,
Dr. Lee, how you'd forget reviewing or reading that in
the testimony because there was a lot of testimony
from Roger Martz.
THE COURT: Okay. Find it.
MR. P. BAKER: Can I see it?
MR. BAKER: Yeah.
(Mr. Baker handed a document to
Mr. P. Baker.)
MR. P. BAKER: It's Criminal Defense Exhibit
1264, on July 25, page 38649.
THE COURT: I don't think that's what you're
supposed to be finding.
MR. P. BAKER: Okay.
Q. (BY MR. BAKER) Now, Mr. Martz -- let me
show you 36648. Mr. Martz was given a two-page
letter, correct, that was Exhibit 1263, okay, and he
reviewed 1263, correct?
A. That's what it says there.
Q. All right.
THE COURT: Okay. That's foundation, go ahead.
MR. P. BAKER: Well, I'll mark this next in
order.
THE CLERK: I don't think it is -- I think it's
already been marked 1223.
(The instrument herein referred to
as a two-page letter dated 2/16/95
was marked for identification as
Defendants' Exhibit No. 1223.)
Q. (BY MR. BAKER) Would you read what the
request was to Roger Martz as an FBI agent, and what
his goal was.
(Mr. Baker read from a letter,
mission statement, from Rockne
Harmon to Roger Martz.)
We would like you to test these items
for the presence/absence of EDTA in order to
refute the possibility that the stain on the
sock could have come from Nicole's reference
sample.
59 or 72 similarly, we'd like you to
test Item 117 to refute the possibility that
it could have come from Simpson's reference
sample.
Q. So his mission statement, that is the
mission statement of Roger Martz, was to refute that
there was any EDTA in either the reference -- in the
sample from the back gate or the socks; you would
agree with that?
MR. LAMBERT: Argumentative, misstates the
evidence as to what the letter says.
THE COURT: The argument seems to be over the
word "refute." I'll sustain it.
The letter speaks for itself. You can
argue over that.
Q. (BY MR. BAKER) The letter says he was to
refute the allegation that there was any blood from
Mr. Simpson's or Nicole Brown Simpson's reference
sample, does it not, sir?
A. I read it.
Q. Okay.
Roger Martz was in the FBI lab for 19
years, wasn't he, when he ran these tests?
A. I don't remember. I mean he could have
been. I have no idea how long he was in the lab.
Q. Page 386, 21, you don't dispute that he
was in the lab --
A. No.
Q. -- for 19 years?
A. I have no knowledge of that.
Q. You don't dispute if he had the goal to
refute there was any EDTA, that he would run his lab
as best he could in an uncontaminated fashion to get
the best results possible; you would agree with that?
A. Yes.
Q. So your theory here is that it was
contaminated, he didn't do the test correctly, and the
elements that you see are not because they were
actually EDTA from a purple top test tube, but they
were EDTA that was left somehow in the machine and
occurred only on the samples from the socks and the
back gate, right?
A. That's incorrect.
MR. BAKER: Nothing further.
REDIRECT EXAMINATION
BY MR. LAMBERT:
Q. Dr. Lee, these notes that you were shown
before by Mr. Baker, he just had you read this one
paragraph which -- would you read both paragraphs to
the jury and then explain what these notes are all
about.
(Mr. Lambert read from a letter,
mission statement, from Rockne
Harmon to Roger Martz.)
A. (Reading:)
"If not planted, a convincing
argument must be found for why the EDTA is
present at those levels. Direct
contamination from environment or
contamination from the lab during the sample
process and it planted -- convincing
arguments must be found to explain why the
levels are so low. Is to say why would --"
where did the rest of it go?
(Indicating to Elmo screen.)
Q. And what is your intent in setting forth
those two possibilities in your notes?
A. This was just organizing my thinking as
to what the issues were.
Q. And you read the testimony of Dr. Rieders
in both the criminal case and the civil case.
Did Dr. Rieders do any testing of his
own?
A. No.
Q. Was he relying upon the same test results
that you were relying upon for his --
A. Yes.
Q. -- Dr. Rieders' opinion?
Do they take into account all of the data
in Roger Martz's set of data?
MR. BAKER: Well, I object. That calls for
speculation and conclusion on the part of this
witness, and it's argumentative and outside the scope.
(The Court reviewed real time
screen.)
THE COURT: Overruled.
A. I'm sorry. I've forgotten the question.
Q. (BY MR. LAMBERT) Let me try again.
Did Dr. Rieders opinions account for all
of the various test results that Martz got when he did
his test?
A. No.
Q. Do yours?
A. I believe so, yes.
Q. The test results that Roger Martz got
when he found this little trace, that little molehill
that we saw in testing his own blood, you testified
during the examination by Mr. Baker that that couldn't
be actual EDTA in his own blood, true?
A. That's correct.
Q. And therefore, it has to be some artifact
that's creating that trace result, correct?
A. That's correct.
Q. And what is your opinion of the artifact
that's creating that trace result?
A. That artifact is most likely the result
of carryover from previous analyses in that
instrument.
Q. What's most likely creating the trace,
little trace level, we saw in the evidence sample?
A. The same effect.
Q. And Dr. Rieders' opinions don't account
at all for how that little trace shows up in Roger
Martz's own evidence, own blood sample?
MR. BAKER: That's argumentative. There's no
way to know that, Your Honor.
(The Court reviewed real time
screen.)
THE COURT: Overruled.
A. Could we repeat the question so I am sure
I answer it the right way.
Q. Do Dr. Rieders' opinion that he gave to
this jury in this case explain how those little trace
levels could have shown up in Roger Martz's own blood?
A. No.
MR. LAMBERT: No further questions, Your Honor.
RECROSS-EXAMINATION
BY MR. BAKER:
Q. You want to be sure you answer the right
way?
A. I wanted to be sure I answered the right
question.
MR. BAKER: Nothing further.
THE COURT: You may step down.
MR. LAMBERT: Thank you.
Dr. Brad Popovich, Your Honor.
BRADLEY POPOVICH,
called as a witness on behalf of the Plaintiffs, was
duly sworn and testified as follows:
THE CLERK: You do solemnly swear that the
testimony you may give in the cause now pending before
this court shall be the truth, the whole truth, and
nothing but the truth, so help you God?
THE WITNESS: I do.
THE BAILIFF: Please be seated.
THE CLERK: Please state and spell both your
first and your last names for the record.
THE WITNESS: Yes. My name is Brad Popovich,
B-r-a-d-l-e-y P-o-p-o-v-i-c-h.
MR. LAMBERT: Before I forget, could I move in
2403 and 2404 from my examination of Dr. Lee.
THE COURT: Received.
MR. BAKER: 1224 and 2405.
THE CLERK: That exhibit number is 1223.
MR. LAMBERT: I object to the letter on the
grounds there no foundation.
THE COURT: Overruled. Received.
(The instrument previously marked
as Plaintiffs' Exhibit 2403 for
identification was received in
evidence.)
(The instrument previously marked
as Plaintiffs' Exhibit 2404 for
identification was received in
evidence.)
(The document previously marked
Defendants' Exhibit 1223 for
identification, was received in
evidence.)
(The document previously marked
Defendants' Exhibit 2405 for
identification, was received in
evidence.)
DIRECT EXAMINATION
BY MR. LAMBERT:
Q. Dr. Popovich, what is your occupation,
sir?
A. I'm a clinical geneticist, clinical
molecular geneticist.
Q. Would you explain for the jury your
formal educational background?
A. Yes. I have a Bachelor of Science
degree, and in biology, I have a Master's of Science
degree in genetic counseling, a Master's of Science in
biochemical genetics, and my Ph.D. is in molecular
genetics.
Q. And when did you obtain your Ph.D.?
A. That would be 1986.
Q. And would you describe what employment
you've had since obtaining your Ph.D.?
A. Since obtaining my Ph.D., I was first a
post-doctoral fellow at the University of Wisconsin in
Madison where I did a fellowship in the department of
medical genetics there.
I then went from there to the University
of North Carolina where I did a fellowship in the
department of pathology there.
Q. And where are you currently employed,
sir?
A. I'm currently employed at the Oregon
Health Sciences University which is the medical school
in Oregon. And I have two appointments at the
university; one is an academic appointment as an
assistant professor in the department of molecular and
medical genetics, and then a hospital-based
appointment which is as the director of the DNA
diagnostic lab.
Q. Are you certified by any organizations
involving DNA testing?
A. I am. I have a medical board
certification as a clinical molecular geneticist from
the American Board of Medical Genetics, which is the
accrediting board of the American College of American
Genetics which is the accrediting board for all people
with genetics training that do anything to do with
patient care or management.
Q. And how long did it take you to be
certified by that board?
A. Well, after one has a doctoral degree,
either an M.D. or Ph.D. degree, one would then do
post-doctoral residency, if you are an M.D., and after
that then one would do a fellowship, and that
fellowship is usually two to three years.
Q. And do you know approximately how many
people in the country are certified by the American
Board of Medical Genetics?
A. Well, in clinical molecular genetics, it
was about 120 until recently, and I think
approximately 80 more were added to that list, so
there's about 200 people.
Q. Of the whole country?
A. That would be in the whole country, and
also including Canada.
Q. And are you yourself involved in
proficiency testing of DNA labs?
A. I am. One of my responsibilities through
the -- my professional college American College of
American Genetics is on what's called a proficiency
testing committee. And essentially, what this
committee does is we are the people, the small group
of people, there are approximately six of us in this
group, and we're the ones to put together the
proficiency testing materials. In other words, write
the exam questions, decide what labs need, what types
of specimens labs need to test to demonstrate the fact
that they are proficient. Then we also score their
performance and write critiques and so on their
performance.
Q. In addition to all this work that you do,
are you also involved in the forensic uses of DNA in
criminal cases?
A. Yes, I am.
Q. How are you involved in that regard?
A. Well, in a couple different capacities.
I have been involved -- well, first of all, in the
state of Oregon we have a panel of DNA experts that
attorneys can turn to that have criminal cases that
involve DNA, and can turn to this group for expert
advice on the reliability of DNA data, the strength,
weaknesses, as to that data, and in particular cases,
essentially serve in an educational role, and I do a
number of cases within the state in that capacity.
In addition, my lab does do some forensic
DNA testing, but that type of testing is very limited
in scope, and by no means do I want to leave you with
the impression that we have a forensic DNA lab.
I consider it a medical diagnostic lab,
but the state of Oregon, whatever, whatever. A young
individual -- these are statutory rape cases where a
victim is 12, 13 years old and is pregnant, and where
the pregnancy -- I can help the state determine who
fathered that child, and then the state would use that
evidence to press charges against that individual. My
lab does those cases and these are criminal cases.
Q. And you've actually testified in court in
some DNA criminal cases?
A. Yes, I have.
Q. Have you testified for just the
prosecution or just the defense or how does that work?
A. No, I've, I guess, been involved in, I
think it's about 18 cases now, and it's been about an
even split between number of cases for the prosecution
and number for the defense.
Q. So you've sometimes worked as a DNA
expert on behalf of criminal defendants?
A. I do.
Q. Do you know who Barry Sheck is?
A. I do.
Q. Is Mr. Sheck one of the DNA lawyers that
represented Mr. Simpson in the criminal case?
A. Yes, he was.
Q. And since that time, has he employed you
to act as an expert in a criminal case?
MR. P. BAKER: Objection, irrelevant.
THE COURT: Goes to his CV, I guess.
Overruled.
A. I should answer?
Q. (BY MR. LAMBERT) Yes.
A. Yes. Subsequent to the criminal case --
the criminal proceedings in the Simpson case, I was
approached by Mr. Sheck and -- and did work with him
on a case.
Q. And what did he ask you to do in that
case?
MR. P. BAKER: Irrelevant.
THE COURT: Sustained.
Q. (BY MR. LAMBERT) Was that -- was that a
case in which Mr. Sheck was representing --
MR. P. BAKER: Same objection.
THE COURT: Overruled.
You may establish what the nature of the
work was. Don't go into detail.
Q. (BY MR. LAMBERT) Okay.
Was that a case in which Mr. Sheck asked
you to do some -- review some DNA evidence in the
case?
A. Yes, he did. He asked me to -- it was a
case --
MR. P. BAKER: Your Honor --
THE COURT: Sustained.
MR. P. BAKER: -- objection, hearsay.
Q. (BY MR. LAMBERT) That was a case that
Mr. Sheck asked you to work on since the criminal
trial?
A. Yes, it was.
Q. Have you concluded your work on that
case?
A. I have.
Q. Was there a successful conclusion to that
work?
MR. P. BAKER: Objection, irrelevant.
THE COURT: Overruled.
A. There was a conclusion to that -- to this
case.
Q. (BY MR. LAMBERT) What was it?
A. In this particular case, a defendant who
had been convicted --
MR. P. BAKER: Same objection.
THE COURT: I'm not -- I said don't go into
detail, Counsel. You can -- you want to know if he
was successful or not, you have him answer that. You
don't need the details.
Q. (BY MR. LAMBERT) Was it a successful
conclusion?
A. It was a successful conclusion.
Q. Now, Dr. Gerdes, the defense expert,
testified that he did not even use the DQ Alpha or
D1S80 test at issue in this case.
THE COURT: Excuse me.
Is there some question on that issue?
MR. P. BAKER: It's argumentative, there's no
foundation.
THE COURT: If it's argumentative, it's
overruled. If you're saying that didn't occur or
there's no foundation for that, then we'll hear you at
bench.
MR. P. BAKER: Okay.
(The following proceedings were
held at the bench with the
reporter.)
MR. P. BAKER: Your Honor, I just -- I'm
objecting on foundational grounds.
THE COURT: Trying to see what the question is.
MR. P. BAKER: I think I have it -- I just lost
it.
THE COURT: What is your question?
MR. LAMBERT: My question is has he done DQ
Alpha and D1S80 tests?
MR. P. BAKER: You were asking about
Dr. Gerdes.
THE COURT: That -- this is what you asked.
This is not Dr. Gerdes.
MR. LAMBERT: He read Dr. Gerdes's testimony.
That's what Dr. Gerdes said.
MR. P. BAKER: I thought you asked whether
Dr. Gerdes did it.
MR. LAMBERT: That's what Dr. Gerdes said, he
doesn't do it.
MR. P. BAKER: I object on foundation,
argumentative. He should be eliciting his testimony,
his opinions.
THE COURT: What's the relevance of whether
Dr. Gerdes does it?
MR. LAMBERT: The issue of DQ Alpha D1S80.
Dr. Gerdes doesn't do it. He does. This is rebuttal.
His opinion has more weight than Gerdes' 'cause he
does the test and Gerdes doesn't.
MR. P. BAKER: He elicited his testimony from
Gerdes.
MR. LAMBERT: This is foundational to make the
comparison. This jury should be able to hear it.
THE COURT: That kind of question is
argumentative. You want to ask this witness if he
does DQ Alpha tests and what the relevance is and how
it's important or not important, go ahead.
MR. LAMBERT: I will.
THE COURT: You can argue it to the jury
With regards to the fact that Dr. Gerdes
doesn't do it, that's his objection, I'll sustain it.
MR. LAMBERT: It's argumentative, not
foundation.
(The following proceedings were
held in open court in the presence
of the jury.)
Q. (BY MR. LAMBERT) Dr. Popovich, one of
the tests at issue in this case is the DQ Alpha test.
Is that a test you do in your own lab?
A. Yes.
Q. Is it used often?
A. Fairly frequently.
Q. How many times have you yourself had
experience with the DQ Alpha test in your own lab?
A. Hundreds.
Q. And the D1S80 test is another test that's
at issue in this case.
Do you do that in your own lab?
A. Yes, we do.
Q. How often have you yourself had
experience with the D1S80 test?
A. Fairly frequently.
Q. A final test at issue in this case is the
RFLP test.
Do you yourself have experience with the
RFLP test?
A. Yes.
Q. How often have you done those kinds of
tests?
A. We do those literally every day.
Q. Now, Dr. Gerdes compared the issues faced
by a DNA lab doing forensic testing to one doing
medical testing.
Are you familiar with his testimony in
that regard?
MR. P. BAKER: Same objection, argumentative.
THE COURT: Overruled.
Q. (BY MR. LAMBERT) Do you agree with
Dr. Gerdes's testimony on that subject?
A. I disagree.
Q. And why is that, sir?
A. Well, I disagree because I think he is
telling one side of a complex story and I think that
the issues that we have to deal with in a medical
diagnostic lab are absolutely synonymous with what a
forensic lab has to deal with and, sure, we deal with
pristine samples where you know which is -- Dr. Gerdes
has pointed out very few of the problems that one is
encountered with in forensic testing. But we also
deal with trace evidence, trace samples where there is
trace amounts of DNA, all the time. And where the
issues that arise are absolutely no different than
what one is encountered with in a forensic setting.
Q. So in your opinion, is DNA equally
suitable to use in the forensic field as it is in the
medical field?
A. If one has an adequate DNA sample, it's
equally suitable for either application.
Q. Now, what material have you reviewed in
connection with this case, Doctor?
A. Well, I've reviewed a lot of materials.
I've reviewed -- I've personally visited each of the
labs on more than one occasion.
I've talked to the analysts that were
responsible for performing the actual testing. I've
reviewed their bench notes.
I reviewed all the original photographs,
all the original -- all the original documentation for
each -- each and every piece of evidence in the case.
In most cases I've reviewed the trial
transcripts from both the criminal and the civil case
of what was said.
I've looked at the conclusions the people
had reached on the basis of the results that they had
obtained.
I've looked at the physical layout of the
lab.
I've looked at personnel qualifications.
I mean, I was really brought in to look
at everything that happened in the case and give a --
a non-biased opinion as to if that was credible
evidence.
Q. And was one of the things that you were
looking for when you did this review, in order to
determine whether there was any contamination that
affected any of the evidence samples?
A. Yes, that was definitely -- any time one
is looking at DNA evidence, one has to take into
account the possibility of contamination.
Q. Now, is contamination something that you
worry about in your own lab?
A. Any time one performs DNA testing, one
has to worry about contamination. Yes, we do.
Q. And is contamination something that DNA
scientists are all aware of and take steps to prevent?
A. Absolutely.
Q. Is the risk of contamination the same
with the PCR-base test as it is with the RFLP-base
test?
A. The risk of contamination in either is
real, but for PCR-base testing, it is a much increased
test, and one has to be extremely careful.
Q. Have you reviewed Colin Yamauchi's
testimony concerning his sampling of evidence items on
June 14 and June 15, 1994?
A. Yes, I have reviewed his testimony and
I've personally questioned Colin in great detail
about -- about what he had done on both of those days.
MR. LAMBERT: We're going to put up on the
television screen -- what number is this?
MR. P. BAKER: 2265.
MR. LAMBERT: 2265.
It's a little bit hard to read. If you'd
like your own copy, it might be easier to read.
Q. (BY MR. LAMBERT) This is a document
which has previously been used with Dr. Gerdes's
testimony, lists the items of evidence tested by Colin
Yamauchi on 6/14 and 6/15.
Are you familiar with those items that he
tested, sir?
A. I am.
Q. And you said you interviewed Colin about
his work?
A. I have.
Q. And did you examine the LAPD lab and the
related facilities?
A. I did. I visited the facilities, looked
at the physical layout, did everything that I did in
all the other labs, and that included going to Piper
Tech, going to Parker Center, and so on.
Q. Do you have an opinion as to whether
Colin Yamauchi's sampling of the evidence on June 14
and June 15 caused any contamination of that evidence?
A. Do I have an opinion on that?
Q. Yes.
A. Yes, I do.
Q. What is your opinion?
A. My opinion is that there is absolutely no
evidence of any contamination whatsoever.
Q. In that connection, could you explain to
the jury what these controls are that are listed in
Colin Yamauchi's samples that he tested that day?
A. Yes, I can.
There are really three places where
contamination can be introduced.
And that would be where the evidence is
actually gathered that's at the crime scene.
Then it would be where the evidence --
when the evidence comes back to the lab, it could be a
laboratory within the laboratory.
And then it could ultimately be at the
last step, which is essentially where one is doing the
procedure that gives you the result and led to
conclusions being able to be reached on the basis of
this.
So the first one -- the 7 substrate
controls speak to that very first point, at the actual
crime scene -- at the actual crime scene.
And what one is doing is looking at
samples that, in fact, are sitting next to the actual
samples that were tested. And if there is
contamination that's taken place at the crime scene,
one is going to see some of that contamination in
those -- those controls.
And in Colin's work, none of those
controls tested positively, so that says something to
me, even not being a forensic scientist and not being
involved in crime-scene investigation. It speaks to
the molecular genetic side of the fact that there was
not enough DNA, if there was any, to spread around
there to cause any type of problems in any subsequent
results.
The next place would be when one is
actually working with the evidence back in the lab,
and in that regard, the one positive control is
actually a stained piece of fabric that Colin ran in
parallel. What that says is that when he was actually
doing his -- his extractions of the DNA from the --
from the samples that were tested, from the -- from
the samples listed above, that none of those, in fact,
on the basis of this one control, suggests that there
was no contamination that took place at that stage.
The reagent blank cloth speaks to that
same thing -- I mean -- I'm sorry, the reagent blank
cloth was really what I was speaking to, and the
positive control essentially says that the extraction
went as planned, that he got the result that he should
have obtained from that particular control.
The amplification blank speaks to that
last stage, the actual testing phase where one is
actually doing what you've heard of, the PCR, and one
is actually looking at the methodologies that generate
this DNA result. And in that case, that amplification
blank was negative. It's exactly what it should be if
one is not introducing contamination in the reagent.
The last one is the amplification
positive, which is a quality control that's internal
to this kit and really speaks to the kit functioning
as -- as it was designed to perform.
So many controls, every controlling
exactly the type -- type of information that one would
want to see if one was -- if, in fact, there was no
contamination and if, in fact, the conclusions that
were reached on these -- on these particular items of
evidence were because of DNA that was picked up and
not because of some DNA that was introduced at a
subsequent stage.
MR. LAMBERT: Why don't you push this up to the
top then see -- this, Steve, up to the bottom
(indicating to Elmo).
Q. (BY MR. LAMBERT) These two days he
sampled 18 evidence items, 3 exemplars and 21
controls. Half of the things he sampled that day or
those two days were controls, and did you look at all
of those test results?
A. Yes, I did.
Q. And what did the controls show?
A. Well, the controls showed that any one of
those three stages of -- of either collection or
examination of the evidence or actually doing the
process of the PCR, that there was no -- there was no
contamination whatsoever there that was detectable.
Q. Thank you.
MR. LAMBERT: Now let's show the next one,
Steve. Which number is this?
MR. FOSTER: 2264.
MR. LAMBERT: 2264.
Q. (BY MR. LAMBERT) This exhibit --
particular exhibit is just talking about 6/14, this
one day, and it lists the number of swatches that were
in these various evidence items and the number of
controls that were sampled by Mr. Yamauchi on that one
day.
MR. LAMBERT: Let's get to the bottom, Steve.
Q. (BY MR. LAMBERT) So 32 evidence swatches
and 7 controls that were handled by Colin that one
day; is that your understanding?
A. That's my understanding, yes.
Q. And these controls that were handled,
were those controls all negative for any
contamination?
A. They did not demonstrate any
contamination. That's correct.
Q. And in order for this evidence to have
been contaminated by the handling by Colin Yamauchi,
would all 32 of those evidence swatches have to have
been uniformly contaminated?
A. I'm sorry, can you --
Q. In order for the evidence to be
contaminated in this case, the evidence handled on
June 14, would all of those 32 swatches, each one of
them, had to have been contaminated?
A. That would be --
MR. P. BAKER: Vague.
THE COURT: Overruled.
A. That would be correct if the results were
due to contamination.
Q. (BY MR. LAMBERT) In your opinion, were
those results due to contamination?
A. There's no evidence that there is
contamination in those 32.
Q. Now, Dr. Gerdes implied in his testimony
that Colin Yamauchi sampled too many evidence items at
once on these two days.
MR. P. BAKER: Objection, Your Honor, no
foundation.
THE COURT: Excuse me?
MR. P. BAKER: Objection, no foundation,
argumentative; implied.
MR. LAMBERT: Stated --
MR. P. BAKER: Where --
THE COURT: Overruled.
Q. (BY MR. LAMBERT) Dr. Gerdes stated --
said that Colin Yamauchi examined too many evidence
items on these two days.
Do you agree with that opinion?
A. I do not.
Q. And do you occasionally handle the same
number of items at once in your laboratory?
A. Yes. It would be -- not at all. I mean
it's a significant number that were handled on that
day, but then again, Colin did indicate in his
testimony that he worked overtime in order to handle
this number of samples.
And in my own lab, I mean it would be a
very similar scenario where, if one had this number of
samples and needed to process those, one could, yes.
Q. Dr. Gerdes stated in his testimony that
Colin Yamauchi's handling of the reference vial
containing Mr. Simpson's blood might have caused some
contamination.
How do you yourself handle reference
vials?
A. Well, when a reference tube of blood
comes in, one would handle it essentially very similar
to what Colin described. One places something over
it. The concern is two-fold. One is your own person
being contaminated by the materials -- the blood
materials that are in there. And the second is the
laboratory environment.
So, in fact, it's very synonymous in many
ways to opening a bottle of wine. I mean if you were
to take a bottle of wine and pull the cork out a good
bit of the way, and it was a red bottle of wine, what
you want to do is prevent any of that wine from
sliding down the side of the bottle or getting on you,
you would place a napkin over it and you would pull
the cork out the last bit of the way, and inevitably
what would end up happening is some of the blood from
that -- from that bottle or from the -- from the
actual vial, or in the case of the wine, from the cork
would actually get onto that napkin, and one would see
that. And so -- and by holding that napkin, or in
this case chemwipes, which are just green kleenexes,
over that, and pulling out that cork, one would keep
that blood on those chemwipes and basically keep it
from getting spread around, so it's exactly what we
would do in opening those.
Q. So is the method that Colin Yamauchi
described that he used to open the vial as part of the
sampling process, a customary way of handling?
A. Absolutely.
Q. Is it uncommon to get a little bit of
blood on the Chemwipes when that happens?
A. Not at all. The majority of the time,
one would.
Q. And does that cause any problems?
A. In my view, it causes no problem.
Q. Now, Dr. Gerdes suggested that perhaps
some contamination could have taken place because of
maybe Colin Yamauchi got some blood on a pen.
Do you remember him saying that in his
testimony?
A. I do recall that.
Q. Is that, in your view, a possible
explanation for all this evidence sample in this case?
A. Not at all. It's not at all consistent
with these -- these items of evidence and the results
that were obtained.
Q. Dr. Gerdes suggested that Colin Yamauchi
may have reintroduced contamination when he brought
evidence samples back to Piper Tech after he had done
the PCR amplification.
Do you remember that portion of his
testimony?
A. I do remember.
Q. Do you agree with that?
A. I think that's absolutely ridiculous.
Q. There's no basis for that testimony, in
your view?
A. None whatsoever.
Q. Now, the test results that Colin Yamauchi
obtained on June the 14th and June the 15th, were
those test results consistent with test results later
performed by DOJ or Cellmark Diagnostics on the same
evidence items?
A. Yes, they were. All the results that
were obtained on those items of evidence were
essentially concorded between all three labs. They
all obtained the same result.
Q. If any contamination had occurred, what
does the fact that all three labs got the same results
tell us about that contamination?
A. Well, it says that the contamination had
to be there before Colin actually processed it.
Q. And is there any evidence at all that
there was any contamination before he began his
process of testing it?
A. No, there's no.
MR. P. BAKER: Objection.
THE COURT: Overruled.
A. (Continuing.) There's no evidence that
those results are due to contamination.
Q. There were -- in the case, how many
different evidence items were collected and tested?
Do you have a rough number in mind?
A. The total number that were collected?
Q. Yes.
A. I don't actually know that number.
I mean, I know that, for instance, that
in addition to what we've talked about at LAPD, that
Cellmark looked at a approximately 25 samples -- items
of evidence that were tested; and DOJ, something in
the neighborhood of 100 to 110.
Q. In all of those evidence items, was there
any evidence at all of contamination?
A. None at all.
MR. LAMBERT: Let's start with the Bundy board.
(Board entitled Results of DNA
Analysis, Bundy Crime Scene, is
Exhibit 291 displayed.)
MR. LAMBERT: Mr. Baker asked me to wait.
MR. P. BAKER: I'm back.
MR. LAMBERT: There he is.
Q. (BY MR. LAMBERT) Now, we've put up
Exhibit Number 291, which is the board showing the
results of the DNA analysis at the Bundy crime scene.
Did you review all of those tests for all
those evidence items?
A. I did, from all three labs.
Q. And are the results among the three labs
consistent?
A. The results are consistent.
Q. Incidentally, do you have any opinion as
to the quality of the testing work done by Gary Sims
in the California Department of Justice?
MR. P. BAKER: Objection. Speculation and
foundation.
THE COURT: Overruled.
A. I do.
Q. (BY MR. LAMBERT) And what is that
opinion?
A. I think that Gary Sims, Renee Montgomery,
and DOJ, in general, does excellent work.
Q. Do you have any opinion about the quality
of the testing done in this case by Robin Cotton,
Cellmark Diagnostics?
A. I do.
Q. What is your opinion?
A. Again, I think Cellmark is a very
reputable company, and the work that was done in this
case was excellent.
Q. Finally, do you have any opinion about
the quality of work done in this case by Colin
Yamauchi, by SID?
A. Yes. I think the work that Colin did is
reliable. I have -- see no reason not to trust any of
it; I think it's very good data.
Q. When you looked at all the evidence
samples reflected on this board from the crime scene
at Bundy, did you see any evidence at all of any
contamination in any of these evidence samples?
A. I did not.
Q. Now, in regard to item number 52,
Dr. Gerdes testified that when he looked at the
DQ Alpha strips for the Department of Justice, he
detected what he said could be contamination in those
strips.
Do you remember that testimony?
A. I do.
Q. Do you agree with that opinion?
A. I do not.
Q. What did you see when you reviewed the
DOJ DQ Alpha strip?
A. Well, the DOJ DQ Alpha strip, as I
recall, there is a -- a -- a very faint 1.3 that's
there, also.
And in that particular case, there are a
number of explanations for that; and -- and the most
likely explanation for that is something that would be
called cross-contamination. That's in a sample, where
one has quite a bit of DNA, and it -- in a way, it
overwhelms the system a bit, and is showing you
something that's very closely related, but is not
necessarily there.
And because of the amount of DNA that
was in that sample, I agree with the testimony that
was given by, for instance, Gary Sims in this case,
that -- as to the explanation for that. It's a very
logical explanation; and it a would be my -- it would
be the explanation that I would offer as the most
logical.
Q. So do you believe that Dr. Gerdes is
wrong in regard to item 58?
A. I do. I think that Dr. Gerdes is looking
very narrowly at one side of the data in this
particular specimen, and isn't looking at the whole
case -- at all the evidence related to that particular
specimen.
Q. Now, Cellmark obtained an RFLP result on
that evidence item 52.
Did you see any evidence at all of
contamination in that RFLP test result?
A. I did not.
Q. In your opinion, could that RFLP result
have been caused by contamination?
A. I believe it could not be.
Q. And is that RFLP result a significant
result, sir?
A. I think it's very significant.
Q. It's very significant in terms of
identifying Mr. Simpson as the person who left that
blood at crime scene?
MR. P. BAKER: Objection. Argumentative.
THE COURT: Overruled.
A. Well, I think it's very significant in
the sense that the profile that was generated by each
and every one of those five probes matches that of
Mr. Simpson.
Q. In your opinion, are the DNA test results
for this evidence found at the Bundy crime scene,
accurate test results?
A. I believe it is, yes.
Q. Are they reliable?
A. I see no reason to not trust the
reliability of this evidence.
Q. Excuse me. In your opinion, can this
jury consider those test results to be unaffected by
any contamination?
MR. P. BAKER: Argumentative.
THE COURT: Overruled.
A. I do not find any reason to believe that
any of this is due to contamination.
MR. LAMBERT: Next board.
(Board displayed entitled Results
of DNA Analysis, Bronco
Automobile.)
MR. LAMBERT: We now have up before you,
Dr. Popovich, the results of the DNA analysis of the
Bronco automobile.
Have you reviewed all of the test results
for the evidence collected from that Bronco?
A. I have.
Q. Did you see any evidence of contamination
in any of those test results?
A. No, I did not.
Q. In regard to the Department of Justice
DQ Alpha result on item 31, there, Dr. Gerdes
testified that Sims misread those results.
Did you review his testimony in that
regard?
A. I did.
Q. Do you agree with Dr. Gerdes?
A. I do not agree with Dr. Gerdes.
Q. What is your opinion on those test
results?
A. Well, I think that what Gary Sims did,
is -- is look at exactly what was there, and -- and,
in fact, called it exactly like he saw it.
And we have supporting evidence of his
call by D1S80 result, the 24, 25 in that regard done
by Renee Montgomery. Not only do we have concordant
data by SID and the DOJ Lab for item 331, but we also
have data that substantiates that, which is D1S80 data
that was done by Renee Montgomery at DOJ.
Q. And Mr. Sims was later able to obtain an
RFLP result in items 303, 304, and 305.
Does that tend to validate his PCR
results on item 31?
A. I think it does, yes.
Q. Do you have any doubt at all whether
Mr. Sims is correct in calling item 31 to be an item
that could contain the blood of both Mr. Simpson and
Mr. Goldman?
A. No; I think that his conclusion is an
accurate one.
Q. In your opinion, are these DNA results,
or the evidence found in the Bronco automobile,
accurate?
A. I believe they are accurate.
Q. Are they reliable?
A. I believe they're reliable.
Q. In your opinion, can the jury consider
those results to be unaffected by any contamination?
A. I believe they are unaffected by
contamination.
MR. LAMBERT: Rockingham --
MR. P. BAKER: Your Honor, can I approach real
quickly while Mr. Foster is getting the boards?
(The following proceedings were
held at the bench, with the
reporter.)
MR. P. BAKER: Your Honor, I'd like to put on
my objection to any further testimony by this witness.
I'd like to put an objection on the record to any
further testimony by this witness. He's not rebuttal;
he's a summary witness who's been brought in as a
clean -- to try to clean up other witnesses.
It's improper rebuttal testimony. I'd
like to object to any further --
MR. BAKER: He's talking about the opinions of
their own witnesses and their own people as to whether
it's reliable or unreliable. That's a conclusion for
the jury to make.
This is improper, Your Honor, and we
object to it.
MR. LAMBERT: Dr. Gerdes claimed that the test
results in this case were affected by contamination.
This witness is saying they're not.
They're all reliable. That's what the opinion is all
about.
MR. BAKER: That isn't what he's asking him.
He is asking him summary questions.
The jury is entitled to believe this
evidence, whether or not he's entitled to render his
opinion pursuant to your ruling. That -- whether or
not he believes the evidence is contaminated, in my
opinion, is totally argumentative to -- asking these
questions, to kind of summarize his views for the
jury.
THE COURT: It's proper rebuttal. It's
argumentative.
I'll sustain it on the basis it's
argumentative.
MR. LAMBERT: Which question?
THE COURT: When you're questioning in terms of
should the jury --
MR. LAMBERT: I'll take that part out.
THE COURT: Okay.
MR. BAKER: One other question.
When he's asking these questions, he --
it seems to me, it's argumentative to say, do you
think these opinions given are reliable. Those are
argumentative questions. I mean, he's arguing whether
or not those opinions are reliable, and he ought not
be able to do that.
MR. LAMBERT: That's not argumentative.
THE COURT: Overruled.
(The following proceedings were
held in open court, in the
presence of the jury.)
THE COURT: How much longer are you going to
be?
MR. LAMBERT: Ten minutes, fifteen, maybe.
You want to take a break now?
THE COURT: Yes.
Ten minutes, ladies and gentlemen.
Don't talk about the case.
(Recess.)
(Jurors resume their respective
seats.)
DIRECT EXAMINATION (continued)
BY MR. LAMBERT:
Q. Dr. Popovich, we now have up the results
of the DNA Rockingham residence. Did you review all
the tests done from the evidence collected at the
Rockingham residence?
A. I did from all three labs.
Q. Did you observe some evidence of
contamination in those results?
A. No. I saw no trace of any contamination.
Q. And in your opinion, are these reliable
test results?
A. I believe they are.
Q. Are they unaffected by contamination?
A. I believe they're unaffected by
contamination.
Q. Are they accurate results?
A. I believe they are accurate.
Q. We now have up the results of the DNA
analysis of the Rockingham gloves.
Did you review the test results on the
Rockingham glove?
A. I did.
Q. Did you observe any evidence of
contamination in those test results?
A. Again, I saw no evidence of
contamination.
Q. And in your opinion, are these test
results reliable?
A. I believe they are.
Q. Are they accurate?
A. I believe they're accurate.
Q. Are they unaffected by contamination?
A. I believe they are unaffected by
contamination.
Q. And these are RFLP results where we have
5 probe and 8 probe matches, are those significant
results, Doctor?
A. I think they are.
Q. Are they significant results in terms of
identifying the source of the blood on that glove?
A. I think they're very significant in
identifying that.
MR. LAMBERT: And finally, the socks board,
please.
Q. Finally, Dr. Popovich, we have the
results of the DNA analysis on the Rockingham socks.
Did you review these test results?
A. I have.
Q. And did you observe any evidence of
contamination on these test results?
A. No, I did not.
Q. In your opinion, are those test results
reliable?
A. I believe they are.
Q. Are they accurate?
A. I believe they are.
Q. Are they unaffected by contamination?
A. I believe they are unaffected by
contamination.
Q. At 11 probe, 5 probe, 9 probe, RFLP
matches, are those significant matches?
A. Highly significant.
MR. LAMBERT: You can take that down, Steve.
(Indicating to board.)
Q. Now, Dr. Gerdes talked a little bit in
his testimony about degradation of evidence samples,
degradation of evidence samples change the DNA from
one person to another?
A. Meaning, can it change the type -- the
results that one gets.
Q. Yes.
A. DNA degradation -- when it degrades, DNA
cannot change the actual type that one gets with any
of these tests. It can make things go away, it can
make the type, in other words, disappear, and
sometimes it can make one of the two genes that that
person has disappear first. But it cannot change the
type of that.
So in other words, they are not going to
go from a type 1 to a type 2 or something, in some DNA
tests, if the type 1 -- if the one gene is degraded,
it is just not going to show up, it's not going to be
a result.
Q. So degradation could not result in
somebody getting false DNA test results?
A. Degradation cannot result in one being
mistyped. It can result in no result. But it cannot
result in mistyping.
Q. Now, Dr. Popovich, you've reviewed a lot
of evidence samples in this case?
A. I have.
Q. Have you ever had a case where you
reviewed so many evidence samples?
A. I have not.
Q. Taking everything into account from your
review of all of those evidence samples, are the test
results, the DNA test results in this case, by LAPD,
Cellmark, and DOJ, are they accurate?
MR. P. BAKER: Objection, argumentative, no
foundation.
THE COURT: Overruled.
A. I believe these results are accurate.
Q. Are they reliable?
A. I believe they're very reliable.
Q. Are they unaffected by contamination?
A. I do believe they're unaffected by
contamination, yes.
MR. LAMBERT: No further questions.
THE COURT: Cross-examine.
CROSS-EXAMINATION
BY MR. P. BAKER:
Q. Dr. Popovich, you're the cleanup hitter,
aren't you?
MR. LAMBERT: Objection, argumentative.
THE COURT: I'll give him that.
A. I'm not sure what you call me.
Q. (BY MR. P. BAKER) You told this jury you
visited the lab basically to give an unbiased opinion
to the standards, right?
A. That is what I did.
Q. You billed the prosecution $30,000 for
that, didn't you?
A. I did.
Q. How much have you billed the plaintiffs'
attorneys in this case?
A. Probably in the neighborhood of about
5,000.
Q. Okay. Pretty unbiased?
A. Yes. I put 300 hours into that previous
case.
Q. Colin Yamauchi is a friend of yours, is
he not?
A. I would say he's absolutely not a friend.
I mean I knew him in no way, shape or
form before I became involved in this case.
Q. When did you become involved in the case?
A. I'd have to look at my CV to look at the
exact date. I believe it was September of '94.
Q. And you weren't called by the prosecution
as a witness, right?
MR. LAMBERT: Objection irrelevant.
THE COURT: Overruled.
Q. You can answer.
A. I was on their list to be a witness but I
was never called.
Q. Okay.
And how many times have you met with --
you call him Colin, since September of 1994?
A. No. I met with Colin on two occasions.
Q. How many times have you talked to him?
A. Oh, probably two more than that.
Q. Four times?
A. Yes.
Q. And your opinion is that everything was
hunky dory in terms of the examination of the
swatches?
A. I'm not sure what hunky dory means.
Q. Never heard that before?
A. I've heard of it.
Q. You have no opinion as to that question?
A. Well, if you define hunky dory, I'll
answer it.
Q. Why don't you use your definition.
A. I wouldn't use the term "hunky dory."
(Laughter.)
Q. All right.
How many nanograms of DNA are in a drop
of blood?
A. Depends how big the drop is.
Q. It's generally held in the scientific
community that approximately a thousand nanograms are
found in a drop of blood, right?
A. Well, that would be approximate.
Q. Okay.
Do you have a dark pen up there.
(Witness handed marker to Mr. P.
Baker.)
Q. How many nanograms of undegraded DNA was
found in Item 47 on the Bundy walk?
A. I'd have to look at my notes on that.
Q. Is it about 33.6?
A. I would say that's probably in the right
neighborhood.
Then again, I wouldn't testify to any of
the numbers if I don't look. It's a specific science.
Q. Go ahead.
A. I do not have that with me.
Q. Okay.
A. I'd have to look.
Q. Do you have any notes on the DNA nanogram
Bundy walkway?
A. No.
I know that Gary Sims --
Q. A question is not pending, sir.
How many nanograms were found in Item 48,
about five, more or less?
A. I don't have those numbers memorized.
Q. Okay. 49; about 1.8 nanograms?
MR. LAMBERT: Seems to me that the lawyer is
testifying here other than the witness.
MR. P. BAKER: Your Honor, he's testifying as
to the DNA in this case. If he doesn't know the
nanograms as to the Bundy walkway, we got problems.
THE COURT: You may.
(Laughter.)
MR. P. BAKER: I'd agree with that.
THE COURT: Why don't you present figures to
him and let him look at it if he doesn't remember.
Q. (BY MR. P. BAKER) I just have my notes.
I don't have the exact drawings, you understand, of
the five Bundy swatches.
The maximum amount of nanograms is 33.6,
right?
A. That's including 52?
Q. Yes. 52 had 31.6, right?
A. Well, it depends on which lab you're
referring to.
Q. Un degraded DNA testified the LAPD?
A. Okay. This is strictly by LAPD.
Q. Correct?
A. Again, I'd have to look at the bench
notes for that. I mean I'll -- basically, if you put
a number up there and you want me to give you an
interpretation of what it means, I'll be happy to do
that.
Q. Let's assume for a hypothetical Item 52
had 31.6 nanograms, Item 58 had 12.1, Item 49 had 1.8,
Item 48 only had 5?
A. Okay.
Q. That's a lot less than the thousand
normally found in a drop of blood, true or untrue,
sir?
A. Well, if a drop of blood has a thousand,
33.6 is less than a thousand.
Q. A lot less?
A. It's significantly less.
Q. Okay.
Now, what about Item 117. How many
nanograms did that have?
A. Again, I don't have any of this committed
to memory.
Q. Item 117 had 150 nanograms, didn't it?
Do you have any idea about that, sir?
A. Well, I know it had more than the others.
Q. And Item 117 is a stain collected on the
back gate?
A. That's correct.
Q. That was checked on July 3?
A. It was collected after the others, that's
correct.
Q. Collected about 19 days after the five
other swatches, right?
A. Sounds about right.
Q. About five times as strong in terms of
nanograms, right?
A. Approximately, yes.
Q. And you know that the Bundy walkway was
washed down after the crimes, right?
A. I did not know that.
Q. Never heard that.
A. I mean I -- again, that part of the
transcript -- I mean I may have read that at one
point. Again I -- again, that's not something that
was fundamental to my part of this investigation.
Q. Okay.
Now, you can have contamination in terms
of DNA from simply changing gloves, right, you can
transfer DNA by changing gloves, transfer from one to
the other, right?
A. Can you be a bit more explicit.
Q. Sure. If you have DNA on your right hand
and you touch the left hand with it, you can transfer
the DNA?
A. Yes.
Q. You can transfer it when you pick up some
tweezers, right?
A. It's possible.
MR. LEONARD: Can I stop holding this?
(Indicating to chart.)
MR. P. BAKER: You can put it down.
MR. LEONARD: Thanks.
Q. (BY MR. P. BAKER) You can transfer DNA
when you touch your glasses, right?
A. It's possible.
Q. Now, did the plaintiffs show you the
demonstration that Andrea Mazzola did of her best
collection techniques?
A. I have never seen any collection
techniques of Andrea Mazzola.
Q. They never showed you -- they never
showed you the videotape that Andrea Mazzola presented
at the prosecution of -- about what was her best
collection techniques?
A. I am not -- I have never seen that, no.
Q. Okay.
You never heard that in that videotape
she touches the pavement, moves the swatches,
transfers the tweezers, touches her glasses; you never
heard anything like that?
A. No. I mean --
Q. Answer my question yes or no.
A. I mean I have heard bits and pieces of
this, yes -- I mean from the transcript, reading the
transcript of the civil trial.
Q. And you have no independent knowledge, as
you sit here today, how Andrea Mazzola collected the
swatches at the crime scene, correct?
A. Personal knowledge?
Q. Yeah.
A. Well, I read the transcript.
Q. Personal knowledge, independent
knowledge; you have none, right?
A. Other than from the official transcript I
have none.
Q. Okay.
Now, you can have contamination by
bottles of reagent, right?
A. You can, right.
Q. That's another liquid that's used when
you're working with DNA; the liquid you use in the
process, correct?
A. You may, yes.
Q. And in your lab you use reagents, right?
A. We do.
Q. How often do you change those reagents?
A. It all depends on the reagent.
Q. Okay.
Do you leave some reagents there for more
than six months?
A. Some reagents are years old, yes.
Q. Okay.
Had you ever looked at the r