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1
1 SANTA MONICA, CALIFORNIA; THURSDAY, JANUARY 16, 1997
28:30 AM
3 DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
4
5 APPEARANCES:
6 (PER COVER PAGE)
7
8 (REGINA D. CHAVEZ, OFFICIAL REPORTER)
9
10 (Jurors resume their respective
11 seats.)
12
13 THE COURT: Good morning.
14 JURORS: Morning.
15 MR. PETROCELLI: Morning, Your Honor.
16 MR. BAKER: Morning, Judge.
17 MR. LAMBERT: Morning, Judge.
18 MR. MEDVENE: Morning, Your Honor.
19 Officer Guzman.
20
21ANGELICA GUZMAN,
22 called as a witness on behalf of the Plaintiffs, was
23 duly sworn and testified as follows:
24
25 THE CLERK: You do solemnly swear that the
26 testimony you may give in the cause now pending before
27 this court shall be the truth, the whole truth, and
28 nothing but the truth, so help you God?
2
1 THE WITNESS: I do.
2 THE CLERK: Please state and spell both your
3 first and your last names for the record.
4 THE WITNESS: My name is Angelica Guzman,
5 A-n-g-e-l-i-c-a, last name is spelled G-u-z-m-a-n.
6
7 DIRECT EXAMINATION
8 BY MR. MEDVENE:
9 Q. What is your business or occupation?
10 A. I am a police officer for the Police
11 Department of Los Angeles.
12 Q. And were you at 360 Rockingham the
13 morning hours of June 13, 1994?
14 A. Yes.
15 Q. How long had you been a police officer at
16 that time?
17 A. For approximately a year and a half.
18 Q. How long had you been working in the
19 field?
20 A. Approximately four months.
21 Q. Was your assignment that morning, in
22 part, to watch a Bronco that was parked in front of
23 360 North Rockingham?
24 A. Yes.
25 Q. And what hours were you at that location?
26 A. I would say approximately from 7 o'clock
27 in the morning until about 4 o'clock in the evening.
28 Q. Sometime around 3:30, did you fill out an
3
1 impound report for the Bronco?
2 A. Yes.
3 Q. How many impound reports approximately
4 had you filled out prior to that time?
5 A. Approximately four or five.
6 Q. We're going to put on the TV monitor
7 what's previously been marked 271. I ask you to --
8 MR. MEDVENE: Let's see if we can focus it a
9 little bit better.
10 Can you go down, scan down to the bottom
11 of it.
12
13 (Elmo adjusted.)
14
15 Q. (BY MR. MEDVENE) Can you take a look at
16 the monitor, Mrs. Guzman.
17 Is that the inventory report that you
18 filled out?
19 A. That's correct.
20 Q. And is that your name and your badge
21 number?
22 A. That's my name and my serial number, sir.
23 Q. And Officer Thompson was with you on that
24 occasion?
25 A. Correct.
26 MR. MEDVENE: Now, can you, Mr. Foster, go to
27 the body of the report, I know there's certain Y's and
28 N's.
4
1
2 (Elmo adjusted.)
3
4 Q. (BY MR. MEDVENE) See the Y's and the
5 N's?
6 A. Yes.
7 Q. What does Y mean and what does N mean?
8 A. Y means yes and N means no.
9 Q. Can you move it over to the left a
10 little, please.
11
12 (Elmo adjusted.)
13
14 Q. You see under battery and alternator,
15 there's a cross in the Y column?
16 A. Correct.
17 Q. Did you put that cross there?
18 A. Yes.
19 Q. Did you notice a battery in the car on
20 that occasion before you put the cross there?
21 A. No.
22 Q. Under the battery it says generator and
23 alternator; is that correct?
24 A. Yes.
25 Q. Did you put an X under the Y column?
26 A. Yes.
27 Q. Did you observe a generator or alternator
28 before you put the X in the Y column?
5
1 A. No.
2 Q. Why did you signify yes, that the vehicle
3 had a battery and alternator even though you did not
4 see the battery and alternator?
5 A. I put yes because the vehicle appeared
6 drivable.
7 Q. Did you -- I notice in the next column it
8 says vehicle appears operable.
9 Do you see that?
10 A. Yes.
11 Q. And you put an X there?
12 A. Yes.
13 Q. Is that what you -- you confirm that you
14 thought it appeared operable?
15 A. That's correct, sir.
16 Q. Why did you think it appeared operable?
17 A. The vehicle didn't have any damage, it
18 had four wheels, there was no debris on the vehicle,
19 and it looked fairly clean; that's the reason why I
20 believed it was operable.
21 Q. Okay.
22 So if you thought the vehicle was
23 operable, why then would you, without knowing if it
24 had a battery or alternator, check yes to those
25 columns?
26 MR. LEONARD: Objection, leading, asked and
27 answered.
28 THE COURT: Overruled.
6
1 A. I made the assumption of putting yes on
2 the battery and alternator because the vehicle
3 appeared driveable.
4 Q. (BY MR. MEDVENE) I don't mean to
5 embarrass you, I also don't know where it is, do you
6 know where the alternator is on a vehicle?
7 A. It's underneath the hood, sir.
8 Q. Somewhere underneath there?
9 A. Somewhere under there.
10 Q. Okay.
11
12 (Laughter.)
13
14 Q. During your hours watching the Bronco as
15 part of your duties, did you ever enter the Bronco?
16 A. No.
17 Q. Did you ever open the hood?
18 A. No.
19 Q. Ever open the trunk?
20 A. No.
21 Q. Ever open any of the doors?
22 A. No.
23 Q. Did Officer Thompson ever open the hood?
24 A. No.
25 MR. LEONARD: Objection, lack of foundation,
26 calls for speculation.
27 THE COURT: Sustained.
28 Q. (BY MR. MEDVENE) In your presence, did
7
1 Officer Thompson ever open the hood?
2 A. No.
3 Q. The doors?
4 A. No.
5 Q. The trunk?
6 A. No.
7 Q. In your presence, did anyone ever open
8 the car?
9 A. No.
10 Q. Ever open the trunk?
11 A. No.
12 Q. Ever open the hood?
13 A. No.
14 MR. MEDVENE: Thank you very much. I have
15 nothing further.
16 THE COURT: Cross-examine.
17
18 CROSS-EXAMINATION
19 BY MR. LEONARD:
20 Q. Good morning, Officer Guzman.
21 A. Good morning.
22 Q. Is this the way -- the fashion in which
23 you filled out this report, is that the way they
24 taught you to do it at the academy?
25 A. I was in training at the time and I was
26 being taught during the course of my training, sir.
27 Q. Did they tell you that you could just
28 make assumptions about whether these parts of the car
8
1 are actually there?
2 A. No, sir.
3 Q. They told you that you had to actually
4 visualize that or look at it to confirm that, in fact,
5 those parts were there when you filled out the report,
6 right?
7 A. That's correct.
8 Q. So you made a mistake when you did this,
9 right?
10 A. That's correct, sir.
11 Q. You weren't as careful as you could have
12 been at filling out the report?
13 A. That's correct.
14 Q. Now, you testified to this jury that you
15 didn't see anyone, Officer Thompson, or anyone else,
16 go into that car, correct?
17 A. Yes.
18 Q. And part of your job was to be as
19 vigilant and careful as you could in making sure that
20 no one approached the car who wasn't permitted to do
21 so, correct?
22 A. Correct.
23 Q. And you didn't have your eye on that car
24 the whole time, did you?
25 A. No.
26 Q. You don't know if somebody got in that
27 car at some point when you weren't watching, correct?
28 A. Correct.
9
1 Q. And is it fair to say that you were as
2 careful watching that vehicle as you were in filling
3 out that report?
4 A. That's correct.
5 Q. Thanks.
6
7 REDIRECT EXAMINATION
8 BY MR. MEDVENE:
9 Q. Approximately how much of your -- strike
10 that.
11 Can you tell the ladies and gentlemen of
12 the jury whether the car was generally in your sight
13 during your time at Rockingham?
14 A. Yes, it was.
15 MR. LEONARD: Objection, asked and answered,
16 Your Honor.
17
18 (The Court reviewed real time
19 screen.)
20
21 THE COURT: Overruled.
22 Q. (BY MR. MEDVENE) Was the car generally
23 in your sight when you were at Rockingham?
24 A. Yes.
25 Q. If someone -- while that car --
26 generally -- Strike that.
27 You've told us the car was generally in
28 your sight. Did you see anyone, any officer, any
10
1 person, open up some car door and pour blood in the
2 car while you were there?
3 A. No.
4 MR. LEONARD: Objection, asked and answered,
5 and argumentative.
6 THE COURT: Sustained.
7 (BY MR. MEDVENE) Did you ever talk to anyone,
8 any officer, about being part of some conspiracy to
9 cover up the fact that some officer, while you were
10 there, would open up the car door, pour blood in it,
11 and you weren't supposed to say anything about it?
12 A. No.
13 MR. LEONARD: Same objection, Your Honor.
14 THE COURT: Sustained.
15 MR. MEDVENE: I have nothing further.
16 MR. LEONARD: Move to strike.
17 THE COURT: Stricken.
18 You going to ask some more questions?
19
20 (Mr. Leonard indicates index
21 finger.)
22
23 THE COURT: Go ahead.
24
25 RECROSS-EXAMINATION
26 BY MR. LEONARD:
27 Q. (BY MR. LEONARD) You saw Detective
28 Fuhrman when you arrived there?
11
1 A. Yes.
2 Q. You don't know if he ever entered the
3 car, do you?
4 A. No, I don't.
5 Q. Thank you.
6
7 REDIRECT EXAMINATION
8 BY MR. MEDVENE:
9 Q. All the times you were watching the car,
10 did you ever see Detective Fuhrman enter the car?
11 A. No.
12 Q. Any officer enter the car?
13 A. No.
14 Q. Thank you.
15 THE COURT: Okay. You may step down. You're
16 excused.
17 THE WITNESS: Thank you, sir.
18 MR. LAMBERT: Plaintiffs call Dr. Terry Lee,
19 Your Honor.
20
21 TERRY LEE,
22 was called as a witness on behalf of the Plaintiffs,
23 was duly sworn and testified as follows:
24
25 THE CLERK: You do solemnly swear that the
26 testimony you may give in the cause now pending before
27 this court shall be the truth, the whole truth, and
28 nothing but the truth, so help you God?
12
1 THE WITNESS: I do.
2 THE CLERK: Please be seated.
3 THE BAILIFF: Please be seated.
4 THE CLERK: Sir, would you please state and
5 spell your name for the record.
6 THE WITNESS: My name is Terry Lee, T-e-r-r-y
7 L-e-e.
8 MR. LAMBERT: Thank you, Your Honor.
9
10 DIRECT EXAMINATION
11 BY MR. LAMBERT:
12 Q. Good morning, Dr. Lee.
13 You are a Ph.D., sir?
14 A. Yes.
15 Q. When did you obtain your Ph.D.?
16 A. I obtained my Ph.D. degree in 1977 from
17 the University of Oregon.
18 Q. And in what field did you obtain that
19 degree?
20 A. Chemistry.
21 Q. And since obtaining your Ph.D., what has
22 been your occupation, sir?
23 A. I have been a research scientist.
24 Q. Where were you first employed after
25 obtaining the Ph.D.?
26 A. I first took a post doctoral position at
27 Oregon Graduate Center for a period of three years,
28 after which I took a position at Cetus Corporation
13
1 which is a technology company in the Bay area. And
2 then finally, I ended up at Beckman Research Institute
3 at the City of Hope.
4 Q. Dr. Frederic Rieders told the jury when
5 he was here that he's testified as an expert witness
6 in excess of 100 times.
7 MR. BAKER: Objection, irrelevant what he told
8 this jury.
9 MR. LAMBERT: I haven't asked the question.
10 MR. BAKER: The preamble is argumentative.
11
12 (The Court reviewed real time
13 screen.)
14
15 THE COURT: Sustained.
16 Q. (BY MR. LAMBERT) How many times,
17 Dr. Lee, have you testified as an expert witness?
18 A. This is my first time.
19 Q. So you are not a professional expert
20 witness?
21 A. No.
22 Q. If you are not a professional witness,
23 sir, would you tell the jury what you are, sir?
24 A. I'm a research scientist. I do research
25 and analysis of molecules by liquid chromatography and
26 mass spectrometry.
27 Q. You indicated you're now employed by the
28 Beckman Research Center of the City of Hope?
14
1 A. Yes.
2 Q. Would you tell the jury what the City of
3 Hope is?
4 A. The City of Hope is -- it's two things:
5 It's a national cancer treatment center, it's also a
6 research institute.
7 Q. And you're involved in the research side
8 of that institute?
9 A. That's correct.
10 Q. How long have you been affiliated with
11 Beckman Research Center with the City of Hope?
12 A. 14 years.
13 Q. Can you tell the jury what your position
14 is at the City of Hope?
15 A. My official title is research scientist.
16 I do studies related to the analysis of biomolecules
17 by mass spectrometry.
18 Q. You had headed the mass spectrometry
19 section of the Beckman Research Center?
20 A. Yes. Immunology has a mass spectrometry
21 section; I'm the head of that section.
22 Q. Are you familiar with the profession
23 known as liquid chromatography?
24 A. Yes, I am.
25 Q. One of the processes that is at issue in
26 this case is a cell called HPLC test. Are you
27 familiar with that test?
28 A. Yes.
15
1 Q. How long have you been involved in doing
2 HPLC tests?
3 A. Since my graduate work, so it would be in
4 excess of 20 years.
5 Q. How many times have you yourself run
6 tests using the HPLC method?
7 A. Hundreds of times.
8 Q. One of the other tests at issue in this
9 case involves the use of liquid chromatography
10 combined with tandem mass spectrometry using an
11 electrospray interface, what Dr. Rieders referred to
12 as LCESMSMS; are you familiar with that technology?
13 A. Yes, I am.
14 Q. How many times have you, yourself, run
15 tests using such technology?
16 A. Hundreds of times.
17 MR. LAMBERT: I'd like to mark as the next
18 exhibit in order which is --
19 MR. FOSTER: It's got a number.
20 MR. LAMBERT: No, the next exhibit in order,
21 which is --
22 THE CLERK: 2403.
23 MR. LAMBERT: 2403.
24 (The instrument herein referred to
25 as curriculum vitae of Dr. Terry
26 Lee was marked for identification
27 as Plaintiffs' Exhibit No. 2403.)
28
16
1 Q. (BY MR. LAMBERT) This is a copy of your
2 resume, Dr. Lee?
3 A. Yes, it is.
4 Q. Is that current?
5 A. Yes.
6 Q. According to your resume, you've written
7 129 articles that are listed on the resume.
8 Do any of those articles deal with mass
9 spectrometry of the type that's at issue in this case?
10 A. Yes. Nearly all of the articles in
11 recent years have been related to that particular
12 topic.
13 Q. And are any of those peer review
14 articles?
15 A. Yes. Nearly all of them.
16 Q. Now, have you reviewed the various tests
17 performed by FBI Agent Martz on certain evidence
18 samples from this case?
19 A. Yes, I have.
20 Q. Can you tell the jury precisely what you
21 have reviewed in preparation for coming here?
22 A. I reviewed the analyses that were
23 submitted to the -- to the I.G.'s -- the Court,
24 related to direct analyses of the samples.
25 There was also a set of analyses that
26 were termed validation studies which I believe were
27 not done by Agent Martz but by other people at the
28 FBI.
17
1 I reviewed Martz's testimony that he gave
2 in the criminal trial.
3 I reviewed Dr. Rieders' testimony that he
4 gave at the criminal trial.
5 I reviewed Dr. Rieders' testimony that he
6 gave in this trial.
7 Q. Have you been asked to determine from the
8 test results of Agent Martz whether or not the
9 evidence samples tested by Agent Martz could have come
10 from test tubes treated with the chemical EDTA?
11 A. Yes.
12 Q. Have you formed an opinion in that
13 regard?
14 A. Yes, I have.
15 Q. What is that opinion?
16 A. My opinion is that it could not have come
17 from those test tubes.
18 Q. Now, one of the tests that Agent Martz
19 performed is a test that he called a negative ion
20 test.
21 What kind of a test is that, sir?
22 A. That refers to negative ion mass
23 spectrometry. In mass spectrometry, you have the
24 option of looking at either positive ions or negative
25 ions.
26 In that particular analysis, Agent Martz
27 found no evidence that there was any contamination in
28 the blood samples by EDTA.
18
1 Q. When Agent Martz performed the negative
2 ion test, was he able to see any EDTA at all in the
3 evidence samples?
4 A. No.
5 Q. Have you yourself ever performed a
6 negative ion test?
7 A. Yes.
8 Q. Have you reviewed the results of other
9 persons who have performed them?
10 A. Yes, I have.
11 Q. Are you familiar with those tests?
12 A. Very familiar.
13 Q. Now, another test that Agent Martz
14 performed is what we've talked about earlier, this
15 so-called HPLC test, and would you describe briefly
16 what an HPLC test is?
17 A. HPLC is -- is short for high pressure or
18 high performance liquid chromatography. It separates
19 mixtures, and the analysis relies upon being able to
20 separate what you want to look for from everything
21 else and assign what is called a retention time to it.
22 The identification is based on the retention time of
23 the compound coming out of the instrument and the UV
24 absorbance signal that the detector monitors.
25 Q. You mentioned before you yourself have
26 performed many of these tests?
27 A. Yes, hundreds.
28 Q. And reviewed results of other people as
19
1 well.
2 Is that part of your functions as the
3 head of the mass spectrometry unit at the City of
4 Hope, to review other people's test results?
5 A. Yes.
6 Q. Now, what do Agent Martz's HPLC tests
7 show as to the possible presence of EDTA from a
8 purple-top test tube in the evidence item?
9 A. There was no indication at all in those
10 tests of any EDTA present in those samples.
11 Q. So both the negative ion test and the
12 HPLC test showed no evidence of EDTA at all?
13 A. That's correct.
14 Q. Finally, Dr. Lee, Agent Martz also
15 performed a so-called positive ion mode test.
16 What kind of test is that, sir?
17 A. That's a test exactly like the negative
18 ion test except you're looking at the positive ions
19 instead of the negative ions.
20 Q. That's another form of the LCESMSMS
21 testing technology?
22 A. That's correct.
23 Q. Have you yourself performed such tests?
24 A. Yes.
25 Q. How many times?
26 A. Hundreds of times.
27 Q. Have you ever reviewed the test results
28 of other people?
20
1 A. Yes, I have.
2 Q. How often?
3 A. Hundreds of times.
4 Q. Now, incidentally, Dr. Lee, are you
5 familiar with the equipment that Agent Martz used to
6 perform these tests?
7 A. Yes. We have the same equipment in our
8 laboratory.
9 Q. You have the very same equipment you used
10 in your lab?
11 A. It's the same mass spectrometry and the
12 same electrospray source, yes.
13 Q. Have you yourself used that equipment?
14 A. Yes.
15 Q. So you're familiar with the equipment?
16 A. I'm very familiar with it.
17 Q. When Agent Martz ran the LCESMSMS test in
18 the positive ion mode to determine whether he could
19 detect the presence of EDTA in the known sample, that
20 is in a sample of blood from a purple-top test tube,
21 was he able to detect EDTA in that testing mode?
22 A. Yes, he got a very strong signal for
23 those kinds of samples.
24 Q. So the EDTA was clearly present and
25 visible under the testing procedure?
26 A. Yes.
27 Q. Now, when Agent Martz ran the LCESMSMS
28 test in the positive ion mode on the evidence samples
21
1 in this case, was he able to obtain the same kind of
2 showing as he did when he ran the known samples?
3 A. No.
4 Q. In those tests on the evidence samples,
5 did Agent Martz obtain signals indicating the presence
6 of blood from an EDTA-treated tube in the evidence
7 samples?
8 A. No.
9 MR. LAMBERT: Let's put up Exhibit 2294.
10
11 (Exhibit 2294 is displayed.)
12
13 MR. LAMBERT: This isn't quite focused.
14 MR. FOSTER: It's too far away.
15 MR. LAMBERT: Yeah. This is a little bit out
16 of focus up here. Little more. Little more. Little
17 more. Well, trouble is, we want to be able to see the
18 whole thing.
19 MR. FOSTER: That's the problem.
20 MR. LAMBERT: Put the whole thing up. We'll
21 continue. I want to see the whole chart.
22 Q. (BY MR. LAMBERT) Can you explain to the
23 jury what this exhibit depicts?
24 A. This is a direct comparison of the -- of
25 one of the analyses for the blood which came from a
26 purple-top tube comparing that with analyses of the
27 evidence sample blood.
28 Q. This signal here, this mountain-like
22
1 signal, what is that showing us?
2 A. That's the signal that he got from the
3 EDTA blood.
4 Q. From -- this is the blood from the
5 purple-top test tube?
6 A. That's the purple-top test tube, yes.
7 Q. This small signal down here, what does
8 that signal --
9 A. That's the signal that he obtained from
10 the blood that came from the evidence sample.
11 Q. Okay.
12 Now, this -- this showing that he got
13 from the evidence sample, the small little mole hill
14 of a showing, in your opinion, could that showing be
15 reflecting blood from a purple-top test tube?
16 A. No.
17 Q. And why not, sir?
18 A. The intensity difference is too great.
19 Agent Martz, because he didn't have an internal
20 standard, he designed his experiment such that if
21 there was any errors in the quantitation, that he
22 would err in the right way; in other words, he would
23 always attempt to use more blood from the evidence
24 sample than he would from his positive control.
25 In this case, there's 100 times or more
26 greater intensity from blood obtained from a
27 purple-top tube than he would get from his evidence
28 sample.
23
1 So that result is inconsistent with the
2 blood from the evidence sample having come from a
3 purple-top tube.
4 Q. And the procedure that Agent Martz used,
5 is that a standard operating procedure for somebody
6 using these mass spectrometry machines?
7 A. Yes, it's a standard operating procedure
8 when you don't have an internal standard that you can
9 do exact quantitation with.
10 Q. And when Agent Martz did these tests, was
11 there an internal standard commercially available to
12 do these tests?
13 A. There was not.
14 MR. LAMBERT: Let's put up the next one. This
15 will be a new one.
16 THE CLERK: 2404.
17
18 (The instrument herein described
19 as Chart was marked for
20 identification as Plaintiffs'
21 Exhibit No. 2404.)
22
23 Q. (BY MR. LAMBERT) The one we just looked
24 at was for K206 or Q206 this is for Q204.
25 Is this the same type of chart that you
26 just showed us?
27 A. Yes.
28 Q. So for both of the two evidence samples,
24
1 socks and back gate, tested by Agent Martz, he got
2 only a trace signal from the evidence sample and some
3 mountainous signal from the known sample?
4 A. That's correct.
5 Q. And once again, Doctor, is it your
6 opinion -- what is your opinion as to whether these
7 little trace signals could have come from a purple-top
8 test tube?
9 A. In my opinion, they could not have come
10 from a purple-top test tube.
11 Q. Now, did Agent Martz also perform these
12 same tests on his own blood?
13 A. He did.
14 Q. And what results did he obtain when he
15 did that test?
16 A. He got essentially equivalent results
17 with his own blood as far as the trace level of EDTA
18 that were detected in his analyses.
19 Q. So when Agent Martz took out his own
20 blood and tested it in the machine, he got this same
21 little signal from his own blood?
22 A. That's correct.
23 Q. And from a scientific point of view,
24 Dr. Lee, could you tell us what the significance of
25 that is?
26 A. The significance, from a scientific point
27 of view, is that since the signal and response are the
28 same, that the likely source of that signal was
25
1 possibly the same.
2 Q. Well, Dr. Rieders testified that this
3 wide variation between the small signal shown in the
4 evidence sample and the very large signal shown in the
5 known sample could be the result of some error by
6 Agent Martz in measuring the amount of the evidence
7 sample.
8 Do you believe Dr. Rieders could be
9 correct in that regard?
10 A. No, I don't. I think that is extremely
11 unlikely. Blood is a colored substance, so if there
12 was a very large error, in this case it would have to
13 be larger than a -- greater than a ten-fold error,
14 then the solution you were sampling from would have
15 been colored differently. That's a difference that
16 you would not be able to overlook.
17 Q. And did Agent Martz run these experiments
18 more than one time?
19 A. He ran them several times.
20 Q. So if Dr. Rieders is right, would Agent
21 Martz have to have made the same error every time he
22 ran them?
23 A. That's correct.
24 Q. And I think you mentioned that Agent
25 Martz was intentionally trying to use more of the
26 evidence sample than the known sample.
27 Is that your understanding?
28 A. That's correct --
26
1 MR. BAKER: Objection, no foundation for that.
2 A. -- Yes.
3 THE COURT: Lay a foundation for that.
4 Q. (BY MR. LAMBERT) You read Dr. Roger
5 Martz's testimony?
6 A. It's contained in Dr. Martz's testimony
7 in the criminal trial.
8 THE COURT: Overruled.
9 Q. (BY MR. LAMBERT) So he was intentionally
10 trying to use more evidence sample than the known
11 sample; is that your understanding?
12 A. That's my understand.
13 Q. That's what would be standard operating
14 procedure for a mass spectrometer doing these tests?
15 A. For doing these kinds of analyses, that's
16 what you would do, yes.
17 Q. Dr. Rieders also tried to explain the
18 difference between the small signal from the evidence
19 sample and the large signal from the known sample by
20 saying that it was possible that the EDTA in the
21 evidence sample had somehow degraded before these
22 tests were run.
23 Is there any scientific literature that
24 supports Dr. Rieders' opinion that EDTA could degrade
25 so significantly?
26 A. None that I'm aware of.
27 MR. BAKER: Objection.
28 Q. (BY MR. LAMBERT) Do you believe that
27
1 Dr. Rieders is correct or incorrect in that regard?
2 A. I believe he's incorrect.
3 Q. Why is that, sir?
4 A. EDTA is a very unstable compound; it's
5 not likely to degrade under normal circumstances. And
6 these evidence samples were -- came from different
7 places and were treated differently; yet they all show
8 the same levels. And so it's difficult to imagine the
9 degradation that would be common to all the samples.
10 Q. And if Dr. Rieders was correct in his
11 degradation theory, how would that explain the results
12 that Agent Martz got in his own blood?
13 A. It wouldn't.
14 Q. As a scientist, Dr. Lee, what is the most
15 likely explanation for this very small trace that is
16 shown in the evidence sample here in this one test
17 that Agent Martz did?
18 A. These results are consistent with a
19 carryover from -- in the instruments. In other words,
20 if you first analyze on the instrument samples which
21 contain a large quantity of EDTA and then you
22 subsequently come in with the samples that don't have
23 any, it's not uncommon to pick up trace levels from
24 various parts of the instruments that have been
25 contaminated with the EDTA and then subsequently
26 alluded off when you did the other analyses.
27 Q. And is that a common problem with the
28 LCESMSMS instruments?
28
1 A. It's a common problem with those
2 instruments, yes.
3 Q. Is it something that you yourself have
4 experienced?
5 A. Many times.
6 Q. And is it something that other people
7 that do mass spectrometry have experienced as well?
8 A. Yes.
9 Q. And if people are very experienced in
10 doing mass spectrometry, is it something that they are
11 aware of is a problem with the instruments?
12 A. Yes.
13 Q. Despite, therefore, the small trace
14 showings that we have on this chart for the evidence
15 sample, are you of the opinion, Doctor, that there is
16 no way that those evidence samples could have come
17 from a purple-top test tube?
18 MR. BAKER: Leading, suggestive.
19 THE COURT: You may answer.
20 A. That's my opinion, yes.
21 MR. LAMBERT: I have no further questions.
22 THE COURT: Cross-examine.
23
24 CROSS-EXAMINATION
25 BY MR. BAKER:
26 Q. Good morning, sir.
27 A. Good morning.
28 Q. Now, Dr. Lee, as I understand it, you
29
1 were hired to refute the presence of EDTA in the blood
2 samples that came from the socks and the back gate
3 that was tested by Agent Martz, correct?
4 A. I was hired to review the data and give
5 an expert opinion about it.
6 Q. And you were -- in terms of your review,
7 you relied upon agent Rodger Martz, right?
8 A. I reviewed his data; I did not talk to
9 him personally.
10 Q. Well, you relied upon the data that he
11 had generated; you relied upon the testimony that he
12 gave at the criminal trial; true?
13 A. That's what I used. That's the evidence
14 that I looked at, yes.
15 Q. And you were told by Mr. Lambert here,
16 not to contact Rodger Martz, were you not?
17 A. I was told that I could not contact him.
18 Q. And you were told that you could not
19 contact Rodger Martz because the FBI didn't want to
20 get involved in the civil case?
21 A. That was my understanding.
22 Q. Did you know there's an FBI agent in town
23 waiting to testify in this case?
24 A. No, I didn't.
25 Q. Do you know that we've had two FBI agents
26 testify in this case?
27 A. No.
28 Q. Did you ever again ask to contact Rodger
30
1 Martz to see what his opinions were relative to
2 whether or not a ghost effect or cross-over could be
3 the reason for the levels of EDTA in the samples in
4 the -- from the back gate and the socks?
5 A. No.
6 Q. You were aware when you did your --
7 arrived at your opinions, that Rodger Martz was not
8 requested to find quantities in EDTA, correct?
9 A. He was requested to determine whether or
10 not there was evidence that the blood from the
11 evidence samples came from a purple-top tube.
12 Q. Next in order.
13 Have you ever seen the letter of
14 Mr. Harmon from the D.A.'s office to the -- to Rodger
15 Martz?
16 A. I don't know. If it was included in the
17 volumes of materials I had, yes, I saw it.
18 Q. It would be important for you to know
19 exactly what Rodger Martz was attempting to do in
20 arriving at your opinions and conclusions, since you
21 didn't do any test to determine EDTA in any sample,
22 correct?
23 A. Would you state that again? I'm not sure
24 I followed it.
25 Q. Okay. Sure be happy to.
26 You did absolutely no testing yourself,
27 correct?
28 A. That's correct.
31
1 Q. And you don't have -- never designed a
2 test to determine the presence or absence of EDTA;
3 correct?
4 A. That's correct.
5 Q. And you knew from your reading of
6 material, that Rodger Martz had never designed a test
7 to determine the presence or absence of EDTA in any
8 material; correct?
9 A. Prior to the work that he did, that's
10 correct.
11 Q. Okay.
12 And you're aware it took him a week to
13 design the test; correct?
14 A. That's correct.
15 Q. You're aware that when he designed this
16 test, he did not design it to determine quantities;
17 true?
18 A. That's partially true. He did not design
19 it to actively determine quantities.
20 MR. LAMBERT: Objection. Object to the use of
21 this exhibit, not being relied upon by the witness in
22 giving his opinion.
23 THE COURT: Sustained.
24 MR. BAKER: It's in evidence, Your Honor. It's
25 cross-examination of this witness.
26 MR. LAMBERT: It's not in evidence.
27 THE COURT: Show it to him.
28 MR. BAKER: Huh?
32
1 THE COURT: Show it to him.
2 MR. BAKER: All right.
3 MR. LAMBERT: It's not in evidence.
4 I object to it going into evidence.
5 THE COURT: He said in evidence, or -- it's not
6 in evidence?
7 MR. LAMBERT: No.
8 MR. BAKER: Is it in evidence?
9 MR. P. BAKER: I don't think that document is
10 in yet.
11 MR. LAMBERT: There's no foundation.
12 THE COURT: Okay. I'll sustain the objection.
13 Q. (BY MR. BAKER) Well, let me ask you
14 this:
15 You certainly became aware, from reading
16 the testimony of Rodger Martz in the criminal trial,
17 that he was to refute the possibility that the stain
18 on the socks would -- could have come from Nicole's
19 reference sample, sample number 59; correct?
20 A. It was his purpose to determine if that
21 was a possibility, yes.
22 Q. And he was also to refute the possibility
23 that item number 117 could have come from
24 Mr. Simpson's reference sample; right?
25 A. He was asked to determine if that was a
26 possibility, yes.
27 Q. And he was asked to make those
28 determinations and not to quantify at all. And, in
33
1 fact, he didn't quantify; true?
2 A. He did not accurately quantify the level
3 of EDTA in those samples; that's correct.
4 Q. He didn't even attempt to quantify at all
5 in designing his test, did he, sir?
6 A. Well, that depends upon what you mean by
7 "quantify." Any occasion, in order to draw a
8 conclusion, you have to have some idea about the
9 quantity involved; otherwise, you can't draw a
10 conclusion based upon whether or not it's even there.
11 Q. Let me read to you what you read of
12 Mr. Martz's testimony in the criminal trial at 38641,
13 lines 1 through 5.
14 Q. By the way, is the method
15 that you used, any of the methods that
16 you used, quantitative methods?
17 A. I did not specifically use
18 these methods to quantitate the amount
19 of EDTA.
20
21 That's what his testimony was, was it
22 not, sir?
23 A. That's correct.
24 Q. Okay.
25 Now, you in coming and arriving at your
26 opinions, are not saying that wasn't EDTA; you're
27 saying that the amount -- the quantity is too little;
28 and hence, you don't believe it came from a purple-top
34
1 test tube, correct?
2 A. That's correct.
3 Q. So you are using quantities, where
4 Mr. Martz, in his tests, determined -- or attempted
5 not to quantify anything; correct?
6 A. The --
7 Q. Well, can you answer that?
8 A. It's a matter of semantics.
9 Q. Can you answer that question, sir?
10 A. Yes. Could you ask it again?
11 Q. You are attempting to use quantity to --
12 in arriving at your opinion that -- that this EDTA
13 that was found in the samples from both the back gate
14 and the socks, was not EDTA from a purple-top test
15 tube; correct?
16 A. Yes.
17 Q. All right.
18 And you are fully aware that Rodger Martz
19 does not use quantity to make any determination
20 relative to EDTA, nor was he asked to; correct?
21 A. By the strict definition of quantitative
22 analysis, he was not doing that.
23 Q. Can you answer my question, sir?
24 He was not using --
25 A. I can answer.
26 I can tell you, as an expert, that I
27 could draw no conclusions whatsoever unless he had
28 some measure of the amount of material present.
35
1 Q. Now --
2 A. He has to know the limits of the
3 sensitivity, the limits of his detection, limits --
4 all these things he has to know, or his analysis means
5 absolutely nothing.
6 Q. And you're aware that he testified that
7 the levels of EDTA or -- strike that -- what he found
8 on the 206 and 207 was consistent with EDTA on the
9 back gate and the socks, correct?
10 A. No.
11 Q. Maybe we'll get that in a minute.
12 MR. BAKER: You want to put that up?
13 MR. P. BAKER: This is next in order.
14 THE CLERK: 2405.
15 MR. P. BAKER: Dr. Lee's notes.
16
17 (The instrument herein referred to
18 as Dr. Terry Lee's notes was
19 marked for identification as
20 Defendant's Exhibit No. 2405.)
21
22 Q. (BY MR. BAKER) Now, you said in your
23 notes --
24 MR. BAKER: Go down to outcome No. 3.
25 MR. P. BAKER: (Adjusts Elmo.)
26 MR. BAKER: Back it off, please.
27 Q. (BY MR. BAKER) "If detectable levels of
28 EDTA are found in the stains, but significantly lower
36
1 than the levels from blood in the tube, then
2 interpretation becomes problematic."
3 What you meant by that, sir, it becomes a
4 problem to determine the EDTA. Isn't that true, sir?
5 MR. LAMBERT: Objection. Argumentative.
6 A. No.
7 Q. (BY MR. BAKER) Let's go down to the next
8 one.
9 You say, if not planted -- can you read
10 that for us -- convincing argument must be found why
11 EDTA is present at that level.
12 A. Yes. You want me to read it?
13 Q. Yes, because I have trouble reading your
14 writing.
15 A. So do I.
16 Q. I can understand that.
17 A. "If not planted, convincing argument must
18 be found for why the EDTA is present at these levels.
19 Q. Now, read the next one.
20 A. I can't even finish that one.
21 Q. I'm sorry.
22 A. I think it's -- I don't know that word.
23 Q. You were attempting to find convincing
24 argument as to why the EDTA --
25 A. Oh, I think I can do it now.
26 One would be direct contamination from
27 either the environment or contamination from the lab
28 during the sample analysis.
37
1 Q. So you were attempting to find convincing
2 argument to explain away the EDTA found by Rodger
3 Martz, and you understood that to be your -- your --
4 your goal; correct, sir?
5 A. No, that wasn't my goal.
6 My goal was to understand why the trace
7 levels that were observed in that particular analysis
8 were there.
9 Q. Well, now, so you came up with this
10 ghosting or carry-over effect from the equipment,
11 correct?
12 That's your theory of why these levels of
13 EDTA were found by Rodger Martz?
14 A. Another most reasonable explanation, yes.
15 Q. You have no information whatsoever about
16 how Rodger Martz runs his lab, correct?
17 A. Direct information, no.
18 Q. And from a the available data, you can't
19 determine what the matrix used to dissolve the sample.
20 You can't determine the quantity and you can't
21 determine the volume equilibrium was done before the
22 next analysis, can you?
23 A. There was statements in the materials
24 that I reviewed with -- with regard to the matrix,
25 with -- with -- with regard to rough estimations about
26 the quantity.
27 I have no information at all with regard
28 to the exact procedures with respect to the
38
1 chromatography and the sample injection procedures.
2 Q. You would agree it's sheer speculation --
3 MR. BAKER: You can take that down.
4 Q. (BY MR. BAKER) -- it's sheer speculation
5 on your part as to whether or not there was any
6 ghosting or cross-over effect; true?
7 A. No. My opinion is based upon evidence.
8 Q. Well, your opinion --
9 A. The data that's present there tells me
10 something.
11 MR. PETROCELLI: Need a break, Your Honor for
12 the juror?
13
14(Juror is coughing.)
15
16 THE COURT: Do you want to take a recess?
17 JUROR: I'm okay.
18 THE COURT: All right. You --
19 All right. Let's a take a ten-minute
20 recess.
21(Recess.)
22
23 (Jurors resume their respective
24 seats.)
25
26 CROSS-EXAMINATION
27 BY MR. BAKER:
28 Q. You discussed in your deposition the way
39
1 to design an experiment in such a way there would be
2 no carryover effect?
3 A. Yes, we discussed those things.
4 Q. And you had testified that you'd have to
5 be very, very careful about the blank, correct?
6 A. That's correct.
7 Q. You testified that the blank would have
8 to be done exactly the same way the samples were done,
9 using exactly the same matrix, exactly the same
10 volume, and exactly the same procedure?
11 A. Yes.
12 Q. And if you do that, you would have
13 greater confidence that what you were seeing in your
14 samples came from what was exactly in the sample; is
15 that correct?
16 A. That's correct.
17 Q. And you don't know whether or not Roger
18 Martz designed the experiments and was very, very
19 careful about his blank, was done exactly the same way
20 as the samples were done, using exactly the same
21 matrix, exactly the same volume, and exactly the same
22 procedure, do you?
23 A. I know what his blanks are. I don't know
24 about his procedures, yes.
25 Q. And now, you would obviously love to talk
26 to Roger Martz, wouldn't you?
27 A. I think it would be a very interesting
28 conversation.
40
1 Q. Yeah.
2 And you testified that you'd love to, but
3 Tom Lambert told you couldn't?
4 MR. LAMBERT: Objection, argumentative,
5 misstates its testimony.
6 THE COURT: Overruled.
7 A. He told me that Roger Martz was
8 unavailable.
9 Q. Speaking of Roger Martz; page 17, lines 1
10 through 11.
11
12 (Mr. Baker read a portion of Terry
13 Lee's deposition transcript.)
14
15 Q. Have you ever made an effort
16 to contact him, to ask him whether he agreed
17 with your opinion?
18 A. I was told that he was not
19 available for me to contact.
20 Q. Who told you?
21 A. Tom Lambert.
22 Q. Did he tell you why he was not
23 available?
24 A. Well, I don't recall exactly
25 what he said, but the impression was that
26 the FBI kind of wanted to stay out of the
27 civil matter. I would love to talk to him.
28 Q. (BY MR. BAKER) That's what you testified
41
1 to?
2 MR. LAMBERT: Objection, improper impeachment,
3 it's not at all inconsistent with what he said.
4 THE COURT: I'll sustain that because you
5 asked, and he answered the same question before in the
6 same way.
7 Q. (BY MR. BAKER) Now, you were talking a
8 little bit during the examination by Mr. Lambert about
9 Roger Martz testing his own blood; do you recall that?
10 A. Yes.
11 Q. And you're aware that Roger Martz threw
12 away all the computer data relative to the test on his
13 own blood, correct?
14 A. That's my understanding. He threw away
15 all the computer data as to any of the test.
16 Q. No one could ever go back and see, but we
17 know -- you are aware that the tests that Roger Martz
18 ran on his own blood is icorrect, correct?
19 A. Incorrect in what sense?
20 Q. That's a poor question. I apologize.
21 The levels that he found in his blood is
22 inconsistent with life, correct?
23 A. If you're saying that it would be
24 impossible for him to have found EDTA levels at those
25 levels in his own blood, that is true, but he didn't
26 know that at the time.
27 Q. He was alive; he knew that, didn't he?
28 A. Yes. But he didn't know it was
42
1 impossible for him to have EDTA levels that high in
2 his own blood; he did not know that.
3 Q. You talked to him about that?
4 A. No.
5 There's no way I could have known.
6 Nobody knew it at that point.
7 Q. Now, it is common knowledge in the
8 scientific industry that there are no detectable
9 levels of EDTA in a normal human being's blood,
10 correct?
11 A. In the past year there have been two labs
12 that have designed tests to prove that point, and they
13 have determined that there's no detectable levels of
14 EDTA in anybody's blood.
15 Q. And so if, for example, Richard Fox were
16 on the stand yesterday and testified that there can be
17 EDTA levels in human blood, that's incorrect?
18 A. That's incorrect.
19 Q. And we know presently, of course, that
20 EDTA is not in human blood to the level that was found
21 by Roger Martz in his experiments done on the blood
22 samples from both the back gate and the socks, true?
23 A. I'm sorry. That was a long question. I
24 lost part of it. Could you repeat that, please.
25 Q. I get these notes -- I have I got an I.Q.
26 that's about ground level, so I have to rephrase and
27 think back of what I was asking you.
28 But -- But basically, in terms of EDTA,
43
1 the EDTA that Roger Martz found in his test from the
2 samples of the back gate and the socks would not be in
3 a normal person's blood; you would agree with that?
4 A. I would agree that he could not find --
5 he would not detect any EDTA in a normal person's
6 blood, that's true.
7 Q. If his test results were in fact
8 accurate, if EDTA was in both the samples from the
9 back gate and the socks, they had to have been
10 planted, if your theory is incorrect; you would agree
11 with that?
12 A. I would say there is another
13 possibility -- there may be another possibility, a
14 possibility that I haven't thought of.
15 Q. Well, you had a lot of time, haven't you?
16 A. Yes.
17 Q. Okay.
18 And your possibility, sir -- you have
19 absolutely no facts to substantiate that there was any
20 cross-over effect or ghosting effect on this machine,
21 true?
22 A. That's not a statement of the facts.
23 There's evidence in the data that would support that
24 conclusion.
25 Q. Your argument, as I understand it, is
26 because of the results, you believe that there is a
27 ghosting or cross-over effect, correct, kind of a
28 bootstrap approach, isn't it?
44
1 MR. LAMBERT: Objection, argumentative.
2 Q. (BY MR. BAKER) Let me just ask this
3 question.
4 MR. BAKER: I'll withdraw that.
5 Q. (BY MR. BAKER) Let me ask you this
6 question:
7 We've established that you certainly
8 don't know what Roger Martz's lab procedures are,
9 correct?
10 A. That is correct.
11 Q. You certainly do know that he was
12 requested to determine that there was no EDTA in
13 either the sample from the back gate or the socks,
14 correct?
15 MR. LAMBERT: Objection, asked and answered.
16 A. That's not my understanding, no.
17 Q. (BY MR. BAKER) He was given the job to
18 refute any EDTA in the back gate or the sock samples,
19 wasn't he?
20 MR. LAMBERT: Objection, argumentative, Your
21 Honor, been asked and answered as well.
22 THE COURT: You may answer if you know.
23 A. I don't think the word "refute" is
24 correct. I think he was asked to determine whether or
25 not that was a possibility.
26 MR. LAMBERT: I still object to any use of this
27 letter. There's no foundation for it.
28 THE COURT: Sustained.
45
1 MR. BAKER: I'll lay a foundation. I'll tie it
2 up if I have to get Rockne Harmon to come in here,
3 Your Honor. This was an exhibit in the criminal
4 trial.
5 MR. LAMBERT: Your Honor, Roger Martz was a
6 witness in the criminal trial.
7 He's not a witness in this trial.
8 There's no foundation.
9 MR. BAKER: Your Honor, in that regard, all of
10 this testimony is relative to what Roger Martz did.
11 This witness didn't do any experiments, didn't do
12 anything except look at what Roger Martz said, and if
13 you give me a minute, I think I'll go over and find
14 that letter.
15 Phil, look up Roger Martz's testimony and
16 find that letter because I think this gentleman has
17 already read it.
18 Q. (BY MR. BAKER) If you read that
19 testimony there's a lot of it. I can understand,
20 Dr. Lee, how you'd forget reviewing or reading that in
21 the testimony because there was a lot of testimony
22 from Roger Martz.
23 THE COURT: Okay. Find it.
24 MR. P. BAKER: Can I see it?
25 MR. BAKER: Yeah.
26
27 (Mr. Baker handed a document to
28 Mr. P. Baker.)
46
1
2 MR. P. BAKER: It's Criminal Defense Exhibit
3 1264, on July 25, page 38649.
4 THE COURT: I don't think that's what you're
5 supposed to be finding.
6 MR. P. BAKER: Okay.
7 Q. (BY MR. BAKER) Now, Mr. Martz -- let me
8 show you 36648. Mr. Martz was given a two-page
9 letter, correct, that was Exhibit 1263, okay, and he
10 reviewed 1263, correct?
11 A. That's what it says there.
12 Q. All right.
13 THE COURT: Okay. That's foundation, go ahead.
14
15 MR. P. BAKER: Well, I'll mark this next in
16 order.
17 THE CLERK: I don't think it is -- I think it's
18 already been marked 1223.
19
20
21 (The instrument herein referred to
22 as a two-page letter dated 2/16/95
23 was marked for identification as
24 Defendants' Exhibit No. 1223.)
25
26 Q. (BY MR. BAKER) Would you read what the
27 request was to Roger Martz as an FBI agent, and what
28 his goal was.
47
1
2 (Mr. Baker read from a letter,
3 mission statement, from Rockne
4 Harmon to Roger Martz.)
5
6 We would like you to test these items
7 for the presence/absence of EDTA in order to
8 refute the possibility that the stain on the
9 sock could have come from Nicole's reference
10 sample.
11 59 or 72 similarly, we'd like you to
12 test Item 117 to refute the possibility that
13 it could have come from Simpson's reference
14 sample.
15
16 Q. So his mission statement, that is the
17 mission statement of Roger Martz, was to refute that
18 there was any EDTA in either the reference -- in the
19 sample from the back gate or the socks; you would
20 agree with that?
21 MR. LAMBERT: Argumentative, misstates the
22 evidence as to what the letter says.
23 THE COURT: The argument seems to be over the
24 word "refute." I'll sustain it.
25 The letter speaks for itself. You can
26 argue over that.
27 Q. (BY MR. BAKER) The letter says he was to
28 refute the allegation that there was any blood from
48
1 Mr. Simpson's or Nicole Brown Simpson's reference
2 sample, does it not, sir?
3 A. I read it.
4 Q. Okay.
5 Roger Martz was in the FBI lab for 19
6 years, wasn't he, when he ran these tests?
7 A. I don't remember. I mean he could have
8 been. I have no idea how long he was in the lab.
9 Q. Page 386, 21, you don't dispute that he
10 was in the lab --
11 A. No.
12 Q. -- for 19 years?
13 A. I have no knowledge of that.
14 Q. You don't dispute if he had the goal to
15 refute there was any EDTA, that he would run his lab
16 as best he could in an uncontaminated fashion to get
17 the best results possible; you would agree with that?
18 A. Yes.
19 Q. So your theory here is that it was
20 contaminated, he didn't do the test correctly, and the
21 elements that you see are not because they were
22 actually EDTA from a purple top test tube, but they
23 were EDTA that was left somehow in the machine and
24 occurred only on the samples from the socks and the
25 back gate, right?
26 A. That's incorrect.
27 MR. BAKER: Nothing further.
28
49
1 REDIRECT EXAMINATION
2 BY MR. LAMBERT:
3 Q. Dr. Lee, these notes that you were shown
4 before by Mr. Baker, he just had you read this one
5 paragraph which -- would you read both paragraphs to
6 the jury and then explain what these notes are all
7 about.
8
9 (Mr. Lambert read from a letter,
10 mission statement, from Rockne
11 Harmon to Roger Martz.)
12
13 A. (Reading:)
14
15 "If not planted, a convincing
16 argument must be found for why the EDTA is
17 present at those levels. Direct
18 contamination from environment or
19 contamination from the lab during the sample
20 process and it planted -- convincing
21 arguments must be found to explain why the
22 levels are so low. Is to say why would --"
23 where did the rest of it go?
24
25 (Indicating to Elmo screen.)
26 Q. And what is your intent in setting forth
27 those two possibilities in your notes?
28 A. This was just organizing my thinking as
50
1 to what the issues were.
2 Q. And you read the testimony of Dr. Rieders
3 in both the criminal case and the civil case.
4 Did Dr. Rieders do any testing of his
5 own?
6 A. No.
7 Q. Was he relying upon the same test results
8 that you were relying upon for his --
9 A. Yes.
10 Q. -- Dr. Rieders' opinion?
11 Do they take into account all of the data
12 in Roger Martz's set of data?
13 MR. BAKER: Well, I object. That calls for
14 speculation and conclusion on the part of this
15 witness, and it's argumentative and outside the scope.
16
17 (The Court reviewed real time
18 screen.)
19
20 THE COURT: Overruled.
21 A. I'm sorry. I've forgotten the question.
22 Q. (BY MR. LAMBERT) Let me try again.
23 Did Dr. Rieders opinions account for all
24 of the various test results that Martz got when he did
25 his test?
26 A. No.
27 Q. Do yours?
28 A. I believe so, yes.
51
1 Q. The test results that Roger Martz got
2 when he found this little trace, that little molehill
3 that we saw in testing his own blood, you testified
4 during the examination by Mr. Baker that that couldn't
5 be actual EDTA in his own blood, true?
6 A. That's correct.
7 Q. And therefore, it has to be some artifact
8 that's creating that trace result, correct?
9 A. That's correct.
10 Q. And what is your opinion of the artifact
11 that's creating that trace result?
12 A. That artifact is most likely the result
13 of carryover from previous analyses in that
14 instrument.
15 Q. What's most likely creating the trace,
16 little trace level, we saw in the evidence sample?
17 A. The same effect.
18 Q. And Dr. Rieders' opinions don't account
19 at all for how that little trace shows up in Roger
20 Martz's own evidence, own blood sample?
21 MR. BAKER: That's argumentative. There's no
22 way to know that, Your Honor.
23
24 (The Court reviewed real time
25 screen.)
26
27 THE COURT: Overruled.
28 A. Could we repeat the question so I am sure
52
1 I answer it the right way.
2 Q. Do Dr. Rieders' opinion that he gave to
3 this jury in this case explain how those little trace
4 levels could have shown up in Roger Martz's own blood?
5 A. No.
6 MR. LAMBERT: No further questions, Your Honor.
7
8 RECROSS-EXAMINATION
9 BY MR. BAKER:
10 Q. You want to be sure you answer the right
11 way?
12 A. I wanted to be sure I answered the right
13 question.
14 MR. BAKER: Nothing further.
15 THE COURT: You may step down.
16 MR. LAMBERT: Thank you.
17 Dr. Brad Popovich, Your Honor.
18
19 BRADLEY POPOVICH,
20 called as a witness on behalf of the Plaintiffs, was
21 duly sworn and testified as follows:
22
23 THE CLERK: You do solemnly swear that the
24 testimony you may give in the cause now pending before
25 this court shall be the truth, the whole truth, and
26 nothing but the truth, so help you God?
27 THE WITNESS: I do.
28 THE BAILIFF: Please be seated.
53
1 THE CLERK: Please state and spell both your
2 first and your last names for the record.
3 THE WITNESS: Yes. My name is Brad Popovich,
4 B-r-a-d-l-e-y P-o-p-o-v-i-c-h.
5 MR. LAMBERT: Before I forget, could I move in
6 2403 and 2404 from my examination of Dr. Lee.
7 THE COURT: Received.
8 MR. BAKER: 1224 and 2405.
9 THE CLERK: That exhibit number is 1223.
10 MR. LAMBERT: I object to the letter on the
11 grounds there no foundation.
12 THE COURT: Overruled. Received.
13
14 (The instrument previously marked
15 as Plaintiffs' Exhibit 2403 for
16 identification was received in
17 evidence.)
18
19 (The instrument previously marked
20 as Plaintiffs' Exhibit 2404 for
21 identification was received in
22 evidence.)
23
24 (The document previously marked
25 Defendants' Exhibit 1223 for
26 identification, was received in
27 evidence.)
28
54
1 (The document previously marked
2 Defendants' Exhibit 2405 for
3 identification, was received in
4 evidence.)
5
6 DIRECT EXAMINATION
7 BY MR. LAMBERT:
8 Q. Dr. Popovich, what is your occupation,
9 sir?
10 A. I'm a clinical geneticist, clinical
11 molecular geneticist.
12 Q. Would you explain for the jury your
13 formal educational background?
14 A. Yes. I have a Bachelor of Science
15 degree, and in biology, I have a Master's of Science
16 degree in genetic counseling, a Master's of Science in
17 biochemical genetics, and my Ph.D. is in molecular
18 genetics.
19 Q. And when did you obtain your Ph.D.?
20 A. That would be 1986.
21 Q. And would you describe what employment
22 you've had since obtaining your Ph.D.?
23 A. Since obtaining my Ph.D., I was first a
24 post-doctoral fellow at the University of Wisconsin in
25 Madison where I did a fellowship in the department of
26 medical genetics there.
27 I then went from there to the University
28 of North Carolina where I did a fellowship in the
55
1 department of pathology there.
2 Q. And where are you currently employed,
3 sir?
4 A. I'm currently employed at the Oregon
5 Health Sciences University which is the medical school
6 in Oregon. And I have two appointments at the
7 university; one is an academic appointment as an
8 assistant professor in the department of molecular and
9 medical genetics, and then a hospital-based
10 appointment which is as the director of the DNA
11 diagnostic lab.
12 Q. Are you certified by any organizations
13 involving DNA testing?
14 A. I am. I have a medical board
15 certification as a clinical molecular geneticist from
16 the American Board of Medical Genetics, which is the
17 accrediting board of the American College of American
18 Genetics which is the accrediting board for all people
19 with genetics training that do anything to do with
20 patient care or management.
21 Q. And how long did it take you to be
22 certified by that board?
23 A. Well, after one has a doctoral degree,
24 either an M.D. or Ph.D. degree, one would then do
25 post-doctoral residency, if you are an M.D., and after
26 that then one would do a fellowship, and that
27 fellowship is usually two to three years.
28 Q. And do you know approximately how many
56
1 people in the country are certified by the American
2 Board of Medical Genetics?
3 A. Well, in clinical molecular genetics, it
4 was about 120 until recently, and I think
5 approximately 80 more were added to that list, so
6 there's about 200 people.
7 Q. Of the whole country?
8 A. That would be in the whole country, and
9 also including Canada.
10 Q. And are you yourself involved in
11 proficiency testing of DNA labs?
12 A. I am. One of my responsibilities through
13 the -- my professional college American College of
14 American Genetics is on what's called a proficiency
15 testing committee. And essentially, what this
16 committee does is we are the people, the small group
17 of people, there are approximately six of us in this
18 group, and we're the ones to put together the
19 proficiency testing materials. In other words, write
20 the exam questions, decide what labs need, what types
21 of specimens labs need to test to demonstrate the fact
22 that they are proficient. Then we also score their
23 performance and write critiques and so on their
24 performance.
25 Q. In addition to all this work that you do,
26 are you also involved in the forensic uses of DNA in
27 criminal cases?
28 A. Yes, I am.
57
1 Q. How are you involved in that regard?
2 A. Well, in a couple different capacities.
3 I have been involved -- well, first of all, in the
4 state of Oregon we have a panel of DNA experts that
5 attorneys can turn to that have criminal cases that
6 involve DNA, and can turn to this group for expert
7 advice on the reliability of DNA data, the strength,
8 weaknesses, as to that data, and in particular cases,
9 essentially serve in an educational role, and I do a
10 number of cases within the state in that capacity.
11 In addition, my lab does do some forensic
12 DNA testing, but that type of testing is very limited
13 in scope, and by no means do I want to leave you with
14 the impression that we have a forensic DNA lab.
15 I consider it a medical diagnostic lab,
16 but the state of Oregon, whatever, whatever. A young
17 individual -- these are statutory rape cases where a
18 victim is 12, 13 years old and is pregnant, and where
19 the pregnancy -- I can help the state determine who
20 fathered that child, and then the state would use that
21 evidence to press charges against that individual. My
22 lab does those cases and these are criminal cases.
23 Q. And you've actually testified in court in
24 some DNA criminal cases?
25 A. Yes, I have.
26 Q. Have you testified for just the
27 prosecution or just the defense or how does that work?
28 A. No, I've, I guess, been involved in, I
58
1 think it's about 18 cases now, and it's been about an
2 even split between number of cases for the prosecution
3 and number for the defense.
4 Q. So you've sometimes worked as a DNA
5 expert on behalf of criminal defendants?
6 A. I do.
7 Q. Do you know who Barry Sheck is?
8 A. I do.
9 Q. Is Mr. Sheck one of the DNA lawyers that
10 represented Mr. Simpson in the criminal case?
11 A. Yes, he was.
12 Q. And since that time, has he employed you
13 to act as an expert in a criminal case?
14 MR. P. BAKER: Objection, irrelevant.
15 THE COURT: Goes to his CV, I guess.
16 Overruled.
17 A. I should answer?
18 Q. (BY MR. LAMBERT) Yes.
19 A. Yes. Subsequent to the criminal case --
20 the criminal proceedings in the Simpson case, I was
21 approached by Mr. Sheck and -- and did work with him
22 on a case.
23 Q. And what did he ask you to do in that
24 case?
25 MR. P. BAKER: Irrelevant.
26 THE COURT: Sustained.
27 Q. (BY MR. LAMBERT) Was that -- was that a
28 case in which Mr. Sheck was representing --
59
1 MR. P. BAKER: Same objection.
2 THE COURT: Overruled.
3 You may establish what the nature of the
4 work was. Don't go into detail.
5 Q. (BY MR. LAMBERT) Okay.
6 Was that a case in which Mr. Sheck asked
7 you to do some -- review some DNA evidence in the
8 case?
9 A. Yes, he did. He asked me to -- it was a
10 case --
11 MR. P. BAKER: Your Honor --
12 THE COURT: Sustained.
13 MR. P. BAKER: -- objection, hearsay.
14 Q. (BY MR. LAMBERT) That was a case that
15 Mr. Sheck asked you to work on since the criminal
16 trial?
17 A. Yes, it was.
18 Q. Have you concluded your work on that
19 case?
20 A. I have.
21 Q. Was there a successful conclusion to that
22 work?
23 MR. P. BAKER: Objection, irrelevant.
24 THE COURT: Overruled.
25 A. There was a conclusion to that -- to this
26 case.
27 Q. (BY MR. LAMBERT) What was it?
28 A. In this particular case, a defendant who
60
1 had been convicted --
2 MR. P. BAKER: Same objection.
3 THE COURT: I'm not -- I said don't go into
4 detail, Counsel. You can -- you want to know if he
5 was successful or not, you have him answer that. You
6 don't need the details.
7 Q. (BY MR. LAMBERT) Was it a successful
8 conclusion?
9 A. It was a successful conclusion.
10 Q. Now, Dr. Gerdes, the defense expert,
11 testified that he did not even use the DQ Alpha or
12 D1S80 test at issue in this case.
13 THE COURT: Excuse me.
14 Is there some question on that issue?
15 MR. P. BAKER: It's argumentative, there's no
16 foundation.
17 THE COURT: If it's argumentative, it's
18 overruled. If you're saying that didn't occur or
19 there's no foundation for that, then we'll hear you at
20 bench.
21 MR. P. BAKER: Okay.
22
23 (The following proceedings were
24 held at the bench with the
25 reporter.)
26
27 MR. P. BAKER: Your Honor, I just -- I'm
28 objecting on foundational grounds.
61
1 THE COURT: Trying to see what the question is.
2 MR. P. BAKER: I think I have it -- I just lost
3 it.
4 THE COURT: What is your question?
5 MR. LAMBERT: My question is has he done DQ
6 Alpha and D1S80 tests?
7 MR. P. BAKER: You were asking about
8 Dr. Gerdes.
9 THE COURT: That -- this is what you asked.
10 This is not Dr. Gerdes.
11 MR. LAMBERT: He read Dr. Gerdes's testimony.
12 That's what Dr. Gerdes said.
13 MR. P. BAKER: I thought you asked whether
14 Dr. Gerdes did it.
15 MR. LAMBERT: That's what Dr. Gerdes said, he
16 doesn't do it.
17 MR. P. BAKER: I object on foundation,
18 argumentative. He should be eliciting his testimony,
19 his opinions.
20 THE COURT: What's the relevance of whether
21 Dr. Gerdes does it?
22 MR. LAMBERT: The issue of DQ Alpha D1S80.
23 Dr. Gerdes doesn't do it. He does. This is rebuttal.
24 His opinion has more weight than Gerdes' 'cause he
25 does the test and Gerdes doesn't.
26 MR. P. BAKER: He elicited his testimony from
27 Gerdes.
28 MR. LAMBERT: This is foundational to make the
62
1 comparison. This jury should be able to hear it.
2 THE COURT: That kind of question is
3 argumentative. You want to ask this witness if he
4 does DQ Alpha tests and what the relevance is and how
5 it's important or not important, go ahead.
6 MR. LAMBERT: I will.
7 THE COURT: You can argue it to the jury
8 With regards to the fact that Dr. Gerdes
9 doesn't do it, that's his objection, I'll sustain it.
10 MR. LAMBERT: It's argumentative, not
11 foundation.
12
13 (The following proceedings were
14 held in open court in the presence
15 of the jury.)
16
17 Q. (BY MR. LAMBERT) Dr. Popovich, one of
18 the tests at issue in this case is the DQ Alpha test.
19 Is that a test you do in your own lab?
20 A. Yes.
21 Q. Is it used often?
22 A. Fairly frequently.
23 Q. How many times have you yourself had
24 experience with the DQ Alpha test in your own lab?
25 A. Hundreds.
26 Q. And the D1S80 test is another test that's
27 at issue in this case.
28 Do you do that in your own lab?
63
1 A. Yes, we do.
2 Q. How often have you yourself had
3 experience with the D1S80 test?
4 A. Fairly frequently.
5 Q. A final test at issue in this case is the
6 RFLP test.
7 Do you yourself have experience with the
8 RFLP test?
9 A. Yes.
10 Q. How often have you done those kinds of
11 tests?
12 A. We do those literally every day.
13 Q. Now, Dr. Gerdes compared the issues faced
14 by a DNA lab doing forensic testing to one doing
15 medical testing.
16 Are you familiar with his testimony in
17 that regard?
18 MR. P. BAKER: Same objection, argumentative.
19 THE COURT: Overruled.
20 Q. (BY MR. LAMBERT) Do you agree with
21 Dr. Gerdes's testimony on that subject?
22 A. I disagree.
23 Q. And why is that, sir?
24 A. Well, I disagree because I think he is
25 telling one side of a complex story and I think that
26 the issues that we have to deal with in a medical
27 diagnostic lab are absolutely synonymous with what a
28 forensic lab has to deal with and, sure, we deal with
64
1 pristine samples where you know which is -- Dr. Gerdes
2 has pointed out very few of the problems that one is
3 encountered with in forensic testing. But we also
4 deal with trace evidence, trace samples where there is
5 trace amounts of DNA, all the time. And where the
6 issues that arise are absolutely no different than
7 what one is encountered with in a forensic setting.
8 Q. So in your opinion, is DNA equally
9 suitable to use in the forensic field as it is in the
10 medical field?
11 A. If one has an adequate DNA sample, it's
12 equally suitable for either application.
13 Q. Now, what material have you reviewed in
14 connection with this case, Doctor?
15 A. Well, I've reviewed a lot of materials.
16 I've reviewed -- I've personally visited each of the
17 labs on more than one occasion.
18 I've talked to the analysts that were
19 responsible for performing the actual testing. I've
20 reviewed their bench notes.
21 I reviewed all the original photographs,
22 all the original -- all the original documentation for
23 each -- each and every piece of evidence in the case.
24 In most cases I've reviewed the trial
25 transcripts from both the criminal and the civil case
26 of what was said.
27 I've looked at the conclusions the people
28 had reached on the basis of the results that they had
65
1 obtained.
2 I've looked at the physical layout of the
3 lab.
4 I've looked at personnel qualifications.
5 I mean, I was really brought in to look
6 at everything that happened in the case and give a --
7 a non-biased opinion as to if that was credible
8 evidence.
9 Q. And was one of the things that you were
10 looking for when you did this review, in order to
11 determine whether there was any contamination that
12 affected any of the evidence samples?
13 A. Yes, that was definitely -- any time one
14 is looking at DNA evidence, one has to take into
15 account the possibility of contamination.
16 Q. Now, is contamination something that you
17 worry about in your own lab?
18 A. Any time one performs DNA testing, one
19 has to worry about contamination. Yes, we do.
20 Q. And is contamination something that DNA
21 scientists are all aware of and take steps to prevent?
22 A. Absolutely.
23 Q. Is the risk of contamination the same
24 with the PCR-base test as it is with the RFLP-base
25 test?
26 A. The risk of contamination in either is
27 real, but for PCR-base testing, it is a much increased
28 test, and one has to be extremely careful.
66
1 Q. Have you reviewed Colin Yamauchi's
2 testimony concerning his sampling of evidence items on
3 June 14 and June 15, 1994?
4 A. Yes, I have reviewed his testimony and
5 I've personally questioned Colin in great detail
6 about -- about what he had done on both of those days.
7 MR. LAMBERT: We're going to put up on the
8 television screen -- what number is this?
9 MR. P. BAKER: 2265.
10 MR. LAMBERT: 2265.
11 It's a little bit hard to read. If you'd
12 like your own copy, it might be easier to read.
13 Q. (BY MR. LAMBERT) This is a document
14 which has previously been used with Dr. Gerdes's
15 testimony, lists the items of evidence tested by Colin
16 Yamauchi on 6/14 and 6/15.
17 Are you familiar with those items that he
18 tested, sir?
19 A. I am.
20 Q. And you said you interviewed Colin about
21 his work?
22 A. I have.
23 Q. And did you examine the LAPD lab and the
24 related facilities?
25 A. I did. I visited the facilities, looked
26 at the physical layout, did everything that I did in
27 all the other labs, and that included going to Piper
28 Tech, going to Parker Center, and so on.
67
1 Q. Do you have an opinion as to whether
2 Colin Yamauchi's sampling of the evidence on June 14
3 and June 15 caused any contamination of that evidence?
4 A. Do I have an opinion on that?
5 Q. Yes.
6 A. Yes, I do.
7 Q. What is your opinion?
8 A. My opinion is that there is absolutely no
9 evidence of any contamination whatsoever.
10 Q. In that connection, could you explain to
11 the jury what these controls are that are listed in
12 Colin Yamauchi's samples that he tested that day?
13 A. Yes, I can.
14 There are really three places where
15 contamination can be introduced.
16 And that would be where the evidence is
17 actually gathered that's at the crime scene.
18 Then it would be where the evidence --
19 when the evidence comes back to the lab, it could be a
20 laboratory within the laboratory.
21 And then it could ultimately be at the
22 last step, which is essentially where one is doing the
23 procedure that gives you the result and led to
24 conclusions being able to be reached on the basis of
25 this.
26 So the first one -- the 7 substrate
27 controls speak to that very first point, at the actual
28 crime scene -- at the actual crime scene.
68
1 And what one is doing is looking at
2 samples that, in fact, are sitting next to the actual
3 samples that were tested. And if there is
4 contamination that's taken place at the crime scene,
5 one is going to see some of that contamination in
6 those -- those controls.
7 And in Colin's work, none of those
8 controls tested positively, so that says something to
9 me, even not being a forensic scientist and not being
10 involved in crime-scene investigation. It speaks to
11 the molecular genetic side of the fact that there was
12 not enough DNA, if there was any, to spread around
13 there to cause any type of problems in any subsequent
14 results.
15 The next place would be when one is
16 actually working with the evidence back in the lab,
17 and in that regard, the one positive control is
18 actually a stained piece of fabric that Colin ran in
19 parallel. What that says is that when he was actually
20 doing his -- his extractions of the DNA from the --
21 from the samples that were tested, from the -- from
22 the samples listed above, that none of those, in fact,
23 on the basis of this one control, suggests that there
24 was no contamination that took place at that stage.
25 The reagent blank cloth speaks to that
26 same thing -- I mean -- I'm sorry, the reagent blank
27 cloth was really what I was speaking to, and the
28 positive control essentially says that the extraction
69
1 went as planned, that he got the result that he should
2 have obtained from that particular control.
3 The amplification blank speaks to that
4 last stage, the actual testing phase where one is
5 actually doing what you've heard of, the PCR, and one
6 is actually looking at the methodologies that generate
7 this DNA result. And in that case, that amplification
8 blank was negative. It's exactly what it should be if
9 one is not introducing contamination in the reagent.
10 The last one is the amplification
11 positive, which is a quality control that's internal
12 to this kit and really speaks to the kit functioning
13 as -- as it was designed to perform.
14 So many controls, every controlling
15 exactly the type -- type of information that one would
16 want to see if one was -- if, in fact, there was no
17 contamination and if, in fact, the conclusions that
18 were reached on these -- on these particular items of
19 evidence were because of DNA that was picked up and
20 not because of some DNA that was introduced at a
21 subsequent stage.
22 MR. LAMBERT: Why don't you push this up to the
23 top then see -- this, Steve, up to the bottom
24 (indicating to Elmo).
25 Q. (BY MR. LAMBERT) These two days he
26 sampled 18 evidence items, 3 exemplars and 21
27 controls. Half of the things he sampled that day or
28 those two days were controls, and did you look at all
70
1 of those test results?
2 A. Yes, I did.
3 Q. And what did the controls show?
4 A. Well, the controls showed that any one of
5 those three stages of -- of either collection or
6 examination of the evidence or actually doing the
7 process of the PCR, that there was no -- there was no
8 contamination whatsoever there that was detectable.
9 Q. Thank you.
10 MR. LAMBERT: Now let's show the next one,
11 Steve. Which number is this?
12 MR. FOSTER: 2264.
13 MR. LAMBERT: 2264.
14 Q. (BY MR. LAMBERT) This exhibit --
15 particular exhibit is just talking about 6/14, this
16 one day, and it lists the number of swatches that were
17 in these various evidence items and the number of
18 controls that were sampled by Mr. Yamauchi on that one
19 day.
20 MR. LAMBERT: Let's get to the bottom, Steve.
21 Q. (BY MR. LAMBERT) So 32 evidence swatches
22 and 7 controls that were handled by Colin that one
23 day; is that your understanding?
24 A. That's my understanding, yes.
25 Q. And these controls that were handled,
26 were those controls all negative for any
27 contamination?
28 A. They did not demonstrate any
71
1 contamination. That's correct.
2 Q. And in order for this evidence to have
3 been contaminated by the handling by Colin Yamauchi,
4 would all 32 of those evidence swatches have to have
5 been uniformly contaminated?
6 A. I'm sorry, can you --
7 Q. In order for the evidence to be
8 contaminated in this case, the evidence handled on
9 June 14, would all of those 32 swatches, each one of
10 them, had to have been contaminated?
11 A. That would be --
12 MR. P. BAKER: Vague.
13 THE COURT: Overruled.
14 A. That would be correct if the results were
15 due to contamination.
16 Q. (BY MR. LAMBERT) In your opinion, were
17 those results due to contamination?
18 A. There's no evidence that there is
19 contamination in those 32.
20 Q. Now, Dr. Gerdes implied in his testimony
21 that Colin Yamauchi sampled too many evidence items at
22 once on these two days.
23 MR. P. BAKER: Objection, Your Honor, no
24 foundation.
25 THE COURT: Excuse me?
26 MR. P. BAKER: Objection, no foundation,
27 argumentative; implied.
28 MR. LAMBERT: Stated --
72
1 MR. P. BAKER: Where --
2 THE COURT: Overruled.
3 Q. (BY MR. LAMBERT) Dr. Gerdes stated --
4 said that Colin Yamauchi examined too many evidence
5 items on these two days.
6 Do you agree with that opinion?
7 A. I do not.
8 Q. And do you occasionally handle the same
9 number of items at once in your laboratory?
10 A. Yes. It would be -- not at all. I mean
11 it's a significant number that were handled on that
12 day, but then again, Colin did indicate in his
13 testimony that he worked overtime in order to handle
14 this number of samples.
15 And in my own lab, I mean it would be a
16 very similar scenario where, if one had this number of
17 samples and needed to process those, one could, yes.
18 Q. Dr. Gerdes stated in his testimony that
19 Colin Yamauchi's handling of the reference vial
20 containing Mr. Simpson's blood might have caused some
21 contamination.
22 How do you yourself handle reference
23 vials?
24 A. Well, when a reference tube of blood
25 comes in, one would handle it essentially very similar
26 to what Colin described. One places something over
27 it. The concern is two-fold. One is your own person
28 being contaminated by the materials -- the blood
73
1 materials that are in there. And the second is the
2 laboratory environment.
3 So, in fact, it's very synonymous in many
4 ways to opening a bottle of wine. I mean if you were
5 to take a bottle of wine and pull the cork out a good
6 bit of the way, and it was a red bottle of wine, what
7 you want to do is prevent any of that wine from
8 sliding down the side of the bottle or getting on you,
9 you would place a napkin over it and you would pull
10 the cork out the last bit of the way, and inevitably
11 what would end up happening is some of the blood from
12 that -- from that bottle or from the -- from the
13 actual vial, or in the case of the wine, from the cork
14 would actually get onto that napkin, and one would see
15 that. And so -- and by holding that napkin, or in
16 this case chemwipes, which are just green kleenexes,
17 over that, and pulling out that cork, one would keep
18 that blood on those chemwipes and basically keep it
19 from getting spread around, so it's exactly what we
20 would do in opening those.
21 Q. So is the method that Colin Yamauchi
22 described that he used to open the vial as part of the
23 sampling process, a customary way of handling?
24 A. Absolutely.
25 Q. Is it uncommon to get a little bit of
26 blood on the Chemwipes when that happens?
27 A. Not at all. The majority of the time,
28 one would.
74
1 Q. And does that cause any problems?
2 A. In my view, it causes no problem.
3 Q. Now, Dr. Gerdes suggested that perhaps
4 some contamination could have taken place because of
5 maybe Colin Yamauchi got some blood on a pen.
6 Do you remember him saying that in his
7 testimony?
8 A. I do recall that.
9 Q. Is that, in your view, a possible
10 explanation for all this evidence sample in this case?
11 A. Not at all. It's not at all consistent
12 with these -- these items of evidence and the results
13 that were obtained.
14 Q. Dr. Gerdes suggested that Colin Yamauchi
15 may have reintroduced contamination when he brought
16 evidence samples back to Piper Tech after he had done
17 the PCR amplification.
18 Do you remember that portion of his
19 testimony?
20 A. I do remember.
21 Q. Do you agree with that?
22 A. I think that's absolutely ridiculous.
23 Q. There's no basis for that testimony, in
24 your view?
25 A. None whatsoever.
26 Q. Now, the test results that Colin Yamauchi
27 obtained on June the 14th and June the 15th, were
28 those test results consistent with test results later
75
1 performed by DOJ or Cellmark Diagnostics on the same
2 evidence items?
3 A. Yes, they were. All the results that
4 were obtained on those items of evidence were
5 essentially concorded between all three labs. They
6 all obtained the same result.
7 Q. If any contamination had occurred, what
8 does the fact that all three labs got the same results
9 tell us about that contamination?
10 A. Well, it says that the contamination had
11 to be there before Colin actually processed it.
12 Q. And is there any evidence at all that
13 there was any contamination before he began his
14 process of testing it?
15 A. No, there's no.
16 MR. P. BAKER: Objection.
17 THE COURT: Overruled.
18 A. (Continuing.) There's no evidence that
19 those results are due to contamination.
20 Q. There were -- in the case, how many
21 different evidence items were collected and tested?
22 Do you have a rough number in mind?
23 A. The total number that were collected?
24 Q. Yes.
25 A. I don't actually know that number.
26 I mean, I know that, for instance, that
27 in addition to what we've talked about at LAPD, that
28 Cellmark looked at a approximately 25 samples -- items
76
1 of evidence that were tested; and DOJ, something in
2 the neighborhood of 100 to 110.
3 Q. In all of those evidence items, was there
4 any evidence at all of contamination?
5 A. None at all.
6 MR. LAMBERT: Let's start with the Bundy board.
7
8 (Board entitled Results of DNA
9 Analysis, Bundy Crime Scene, is
10 Exhibit 291 displayed.)
11
12 MR. LAMBERT: Mr. Baker asked me to wait.
13 MR. P. BAKER: I'm back.
14 MR. LAMBERT: There he is.
15 Q. (BY MR. LAMBERT) Now, we've put up
16 Exhibit Number 291, which is the board showing the
17 results of the DNA analysis at the Bundy crime scene.
18 Did you review all of those tests for all
19 those evidence items?
20 A. I did, from all three labs.
21 Q. And are the results among the three labs
22 consistent?
23 A. The results are consistent.
24 Q. Incidentally, do you have any opinion as
25 to the quality of the testing work done by Gary Sims
26 in the California Department of Justice?
27 MR. P. BAKER: Objection. Speculation and
28 foundation.
77
1 THE COURT: Overruled.
2 A. I do.
3 Q. (BY MR. LAMBERT) And what is that
4 opinion?
5 A. I think that Gary Sims, Renee Montgomery,
6 and DOJ, in general, does excellent work.
7 Q. Do you have any opinion about the quality
8 of the testing done in this case by Robin Cotton,
9 Cellmark Diagnostics?
10 A. I do.
11 Q. What is your opinion?
12 A. Again, I think Cellmark is a very
13 reputable company, and the work that was done in this
14 case was excellent.
15 Q. Finally, do you have any opinion about
16 the quality of work done in this case by Colin
17 Yamauchi, by SID?
18 A. Yes. I think the work that Colin did is
19 reliable. I have -- see no reason not to trust any of
20 it; I think it's very good data.
21 Q. When you looked at all the evidence
22 samples reflected on this board from the crime scene
23 at Bundy, did you see any evidence at all of any
24 contamination in any of these evidence samples?
25 A. I did not.
26 Q. Now, in regard to item number 52,
27 Dr. Gerdes testified that when he looked at the
28 DQ Alpha strips for the Department of Justice, he
78
1 detected what he said could be contamination in those
2 strips.
3 Do you remember that testimony?
4 A. I do.
5 Q. Do you agree with that opinion?
6 A. I do not.
7 Q. What did you see when you reviewed the
8 DOJ DQ Alpha strip?
9 A. Well, the DOJ DQ Alpha strip, as I
10 recall, there is a -- a -- a very faint 1.3 that's
11 there, also.
12 And in that particular case, there are a
13 number of explanations for that; and -- and the most
14 likely explanation for that is something that would be
15 called cross-contamination. That's in a sample, where
16 one has quite a bit of DNA, and it -- in a way, it
17 overwhelms the system a bit, and is showing you
18 something that's very closely related, but is not
19 necessarily there.
20 And because of the amount of DNA that
21 was in that sample, I agree with the testimony that
22 was given by, for instance, Gary Sims in this case,
23 that -- as to the explanation for that. It's a very
24 logical explanation; and it a would be my -- it would
25 be the explanation that I would offer as the most
26 logical.
27 Q. So do you believe that Dr. Gerdes is
28 wrong in regard to item 58?
79
1 A. I do. I think that Dr. Gerdes is looking
2 very narrowly at one side of the data in this
3 particular specimen, and isn't looking at the whole
4 case -- at all the evidence related to that particular
5 specimen.
6 Q. Now, Cellmark obtained an RFLP result on
7 that evidence item 52.
8 Did you see any evidence at all of
9 contamination in that RFLP test result?
10 A. I did not.
11 Q. In your opinion, could that RFLP result
12 have been caused by contamination?
13 A. I believe it could not be.
14 Q. And is that RFLP result a significant
15 result, sir?
16 A. I think it's very significant.
17 Q. It's very significant in terms of
18 identifying Mr. Simpson as the person who left that
19 blood at crime scene?
20 MR. P. BAKER: Objection. Argumentative.
21 THE COURT: Overruled.
22 A. Well, I think it's very significant in
23 the sense that the profile that was generated by each
24 and every one of those five probes matches that of
25 Mr. Simpson.
26 Q. In your opinion, are the DNA test results
27 for this evidence found at the Bundy crime scene,
28 accurate test results?
80
1 A. I believe it is, yes.
2 Q. Are they reliable?
3 A. I see no reason to not trust the
4 reliability of this evidence.
5 Q. Excuse me. In your opinion, can this
6 jury consider those test results to be unaffected by
7 any contamination?
8 MR. P. BAKER: Argumentative.
9 THE COURT: Overruled.
10 A. I do not find any reason to believe that
11 any of this is due to contamination.
12 MR. LAMBERT: Next board.
13
14 (Board displayed entitled Results
15 of DNA Analysis, Bronco
16 Automobile.)
17
18 MR. LAMBERT: We now have up before you,
19 Dr. Popovich, the results of the DNA analysis of the
20 Bronco automobile.
21 Have you reviewed all of the test results
22 for the evidence collected from that Bronco?
23 A. I have.
24 Q. Did you see any evidence of contamination
25 in any of those test results?
26 A. No, I did not.
27 Q. In regard to the Department of Justice
28 DQ Alpha result on item 31, there, Dr. Gerdes
81
1 testified that Sims misread those results.
2 Did you review his testimony in that
3 regard?
4 A. I did.
5 Q. Do you agree with Dr. Gerdes?
6 A. I do not agree with Dr. Gerdes.
7 Q. What is your opinion on those test
8 results?
9 A. Well, I think that what Gary Sims did,
10 is -- is look at exactly what was there, and -- and,
11 in fact, called it exactly like he saw it.
12 And we have supporting evidence of his
13 call by D1S80 result, the 24, 25 in that regard done
14 by Renee Montgomery. Not only do we have concordant
15 data by SID and the DOJ Lab for item 331, but we also
16 have data that substantiates that, which is D1S80 data
17 that was done by Renee Montgomery at DOJ.
18 Q. And Mr. Sims was later able to obtain an
19 RFLP result in items 303, 304, and 305.
20 Does that tend to validate his PCR
21 results on item 31?
22 A. I think it does, yes.
23 Q. Do you have any doubt at all whether
24 Mr. Sims is correct in calling item 31 to be an item
25 that could contain the blood of both Mr. Simpson and
26 Mr. Goldman?
27 A. No; I think that his conclusion is an
28 accurate one.
82
1 Q. In your opinion, are these DNA results,
2 or the evidence found in the Bronco automobile,
3 accurate?
4 A. I believe they are accurate.
5 Q. Are they reliable?
6 A. I believe they're reliable.
7 Q. In your opinion, can the jury consider
8 those results to be unaffected by any contamination?
9 A. I believe they are unaffected by
10 contamination.
11 MR. LAMBERT: Rockingham --
12 MR. P. BAKER: Your Honor, can I approach real
13 quickly while Mr. Foster is getting the boards?
14
15 (The following proceedings were
16 held at the bench, with the
17 reporter.)
18
19 MR. P. BAKER: Your Honor, I'd like to put on
20 my objection to any further testimony by this witness.
21 I'd like to put an objection on the record to any
22 further testimony by this witness. He's not rebuttal;
23 he's a summary witness who's been brought in as a
24 clean -- to try to clean up other witnesses.
25 It's improper rebuttal testimony. I'd
26 like to object to any further --
27 MR. BAKER: He's talking about the opinions of
28 their own witnesses and their own people as to whether
83
1 it's reliable or unreliable. That's a conclusion for
2 the jury to make.
3 This is improper, Your Honor, and we
4 object to it.
5 MR. LAMBERT: Dr. Gerdes claimed that the test
6 results in this case were affected by contamination.
7 This witness is saying they're not.
8 They're all reliable. That's what the opinion is all
9 about.
10 MR. BAKER: That isn't what he's asking him.
11 He is asking him summary questions.
12 The jury is entitled to believe this
13 evidence, whether or not he's entitled to render his
14 opinion pursuant to your ruling. That -- whether or
15 not he believes the evidence is contaminated, in my
16 opinion, is totally argumentative to -- asking these
17 questions, to kind of summarize his views for the
18 jury.
19 THE COURT: It's proper rebuttal. It's
20 argumentative.
21 I'll sustain it on the basis it's
22 argumentative.
23 MR. LAMBERT: Which question?
24 THE COURT: When you're questioning in terms of
25 should the jury --
26 MR. LAMBERT: I'll take that part out.
27 THE COURT: Okay.
28 MR. BAKER: One other question.
84
1 When he's asking these questions, he --
2 it seems to me, it's argumentative to say, do you
3 think these opinions given are reliable. Those are
4 argumentative questions. I mean, he's arguing whether
5 or not those opinions are reliable, and he ought not
6 be able to do that.
7 MR. LAMBERT: That's not argumentative.
8 THE COURT: Overruled.
9
10(The following proceedings were
11 held in open court, in the
12 presence of the jury.)
13
14 THE COURT: How much longer are you going to
15 be?
16 MR. LAMBERT: Ten minutes, fifteen, maybe.
17 You want to take a break now?
18 THE COURT: Yes.
19 Ten minutes, ladies and gentlemen.
20 Don't talk about the case.
21(Recess.)
22
23 (Jurors resume their respective
24 seats.)
25
26
27
28
85
1 DIRECT EXAMINATION (continued)
2 BY MR. LAMBERT:
3 Q. Dr. Popovich, we now have up the results
4 of the DNA Rockingham residence. Did you review all
5 the tests done from the evidence collected at the
6 Rockingham residence?
7 A. I did from all three labs.
8 Q. Did you observe some evidence of
9 contamination in those results?
10 A. No. I saw no trace of any contamination.
11 Q. And in your opinion, are these reliable
12 test results?
13 A. I believe they are.
14 Q. Are they unaffected by contamination?
15 A. I believe they're unaffected by
16 contamination.
17 Q. Are they accurate results?
18 A. I believe they are accurate.
19 Q. We now have up the results of the DNA
20 analysis of the Rockingham gloves.
21 Did you review the test results on the
22 Rockingham glove?
23 A. I did.
24 Q. Did you observe any evidence of
25 contamination in those test results?
26 A. Again, I saw no evidence of
27 contamination.
28 Q. And in your opinion, are these test
86
1 results reliable?
2 A. I believe they are.
3 Q. Are they accurate?
4 A. I believe they're accurate.
5 Q. Are they unaffected by contamination?
6 A. I believe they are unaffected by
7 contamination.
8 Q. And these are RFLP results where we have
9 5 probe and 8 probe matches, are those significant
10 results, Doctor?
11 A. I think they are.
12 Q. Are they significant results in terms of
13 identifying the source of the blood on that glove?
14 A. I think they're very significant in
15 identifying that.
16 MR. LAMBERT: And finally, the socks board,
17 please.
18 Q. Finally, Dr. Popovich, we have the
19 results of the DNA analysis on the Rockingham socks.
20 Did you review these test results?
21 A. I have.
22 Q. And did you observe any evidence of
23 contamination on these test results?
24 A. No, I did not.
25 Q. In your opinion, are those test results
26 reliable?
27 A. I believe they are.
28 Q. Are they accurate?
87
1 A. I believe they are.
2 Q. Are they unaffected by contamination?
3 A. I believe they are unaffected by
4 contamination.
5 Q. At 11 probe, 5 probe, 9 probe, RFLP
6 matches, are those significant matches?
7 A. Highly significant.
8 MR. LAMBERT: You can take that down, Steve.
9
10 (Indicating to board.)
11
12 Q. Now, Dr. Gerdes talked a little bit in
13 his testimony about degradation of evidence samples,
14 degradation of evidence samples change the DNA from
15 one person to another?
16 A. Meaning, can it change the type -- the
17 results that one gets.
18 Q. Yes.
19 A. DNA degradation -- when it degrades, DNA
20 cannot change the actual type that one gets with any
21 of these tests. It can make things go away, it can
22 make the type, in other words, disappear, and
23 sometimes it can make one of the two genes that that
24 person has disappear first. But it cannot change the
25 type of that.
26 So in other words, they are not going to
27 go from a type 1 to a type 2 or something, in some DNA
28 tests, if the type 1 -- if the one gene is degraded,
88
1 it is just not going to show up, it's not going to be
2 a result.
3 Q. So degradation could not result in
4 somebody getting false DNA test results?
5 A. Degradation cannot result in one being
6 mistyped. It can result in no result. But it cannot
7 result in mistyping.
8 Q. Now, Dr. Popovich, you've reviewed a lot
9 of evidence samples in this case?
10 A. I have.
11 Q. Have you ever had a case where you
12 reviewed so many evidence samples?
13 A. I have not.
14 Q. Taking everything into account from your
15 review of all of those evidence samples, are the test
16 results, the DNA test results in this case, by LAPD,
17 Cellmark, and DOJ, are they accurate?
18 MR. P. BAKER: Objection, argumentative, no
19 foundation.
20 THE COURT: Overruled.
21 A. I believe these results are accurate.
22 Q. Are they reliable?
23 A. I believe they're very reliable.
24 Q. Are they unaffected by contamination?
25 A. I do believe they're unaffected by
26 contamination, yes.
27 MR. LAMBERT: No further questions.
28 THE COURT: Cross-examine.
89
1 CROSS-EXAMINATION
2 BY MR. P. BAKER:
3 Q. Dr. Popovich, you're the cleanup hitter,
4 aren't you?
5 MR. LAMBERT: Objection, argumentative.
6 THE COURT: I'll give him that.
7 A. I'm not sure what you call me.
8 Q. (BY MR. P. BAKER) You told this jury you
9 visited the lab basically to give an unbiased opinion
10 to the standards, right?
11 A. That is what I did.
12 Q. You billed the prosecution $30,000 for
13 that, didn't you?
14 A. I did.
15 Q. How much have you billed the plaintiffs'
16 attorneys in this case?
17 A. Probably in the neighborhood of about
18 5,000.
19 Q. Okay. Pretty unbiased?
20 A. Yes. I put 300 hours into that previous
21 case.
22 Q. Colin Yamauchi is a friend of yours, is
23 he not?
24 A. I would say he's absolutely not a friend.
25 I mean I knew him in no way, shape or
26 form before I became involved in this case.
27 Q. When did you become involved in the case?
28 A. I'd have to look at my CV to look at the
90
1 exact date. I believe it was September of '94.
2 Q. And you weren't called by the prosecution
3 as a witness, right?
4 MR. LAMBERT: Objection irrelevant.
5 THE COURT: Overruled.
6 Q. You can answer.
7 A. I was on their list to be a witness but I
8 was never called.
9 Q. Okay.
10 And how many times have you met with --
11 you call him Colin, since September of 1994?
12 A. No. I met with Colin on two occasions.
13 Q. How many times have you talked to him?
14 A. Oh, probably two more than that.
15 Q. Four times?
16 A. Yes.
17 Q. And your opinion is that everything was
18 hunky dory in terms of the examination of the
19 swatches?
20 A. I'm not sure what hunky dory means.
21 Q. Never heard that before?
22 A. I've heard of it.
23 Q. You have no opinion as to that question?
24 A. Well, if you define hunky dory, I'll
25 answer it.
26 Q. Why don't you use your definition.
27 A. I wouldn't use the term "hunky dory."
28
91
1 (Laughter.)
2
3 Q. All right.
4 How many nanograms of DNA are in a drop
5 of blood?
6 A. Depends how big the drop is.
7 Q. It's generally held in the scientific
8 community that approximately a thousand nanograms are
9 found in a drop of blood, right?
10 A. Well, that would be approximate.
11 Q. Okay.
12 Do you have a dark pen up there.
13
14 (Witness handed marker to Mr. P.
15 Baker.)
16
17 Q. How many nanograms of undegraded DNA was
18 found in Item 47 on the Bundy walk?
19 A. I'd have to look at my notes on that.
20 Q. Is it about 33.6?
21 A. I would say that's probably in the right
22 neighborhood.
23 Then again, I wouldn't testify to any of
24 the numbers if I don't look. It's a specific science.
25 Q. Go ahead.
26 A. I do not have that with me.
27 Q. Okay.
28 A. I'd have to look.
92
1 Q. Do you have any notes on the DNA nanogram
2 Bundy walkway?
3 A. No.
4 I know that Gary Sims --
5 Q. A question is not pending, sir.
6 How many nanograms were found in Item 48,
7 about five, more or less?
8 A. I don't have those numbers memorized.
9 Q. Okay. 49; about 1.8 nanograms?
10 MR. LAMBERT: Seems to me that the lawyer is
11 testifying here other than the witness.
12 MR. P. BAKER: Your Honor, he's testifying as
13 to the DNA in this case. If he doesn't know the
14 nanograms as to the Bundy walkway, we got problems.
15 THE COURT: You may.
16
17 (Laughter.)
18
19 MR. P. BAKER: I'd agree with that.
20 THE COURT: Why don't you present figures to
21 him and let him look at it if he doesn't remember.
22 Q. (BY MR. P. BAKER) I just have my notes.
23 I don't have the exact drawings, you understand, of
24 the five Bundy swatches.
25 The maximum amount of nanograms is 33.6,
26 right?
27 A. That's including 52?
28 Q. Yes. 52 had 31.6, right?
93
1 A. Well, it depends on which lab you're
2 referring to.
3 Q. Un degraded DNA testified the LAPD?
4 A. Okay. This is strictly by LAPD.
5 Q. Correct?
6 A. Again, I'd have to look at the bench
7 notes for that. I mean I'll -- basically, if you put
8 a number up there and you want me to give you an
9 interpretation of what it means, I'll be happy to do
10 that.
11 Q. Let's assume for a hypothetical Item 52
12 had 31.6 nanograms, Item 58 had 12.1, Item 49 had 1.8,
13 Item 48 only had 5?
14 A. Okay.
15 Q. That's a lot less than the thousand
16 normally found in a drop of blood, true or untrue,
17 sir?
18 A. Well, if a drop of blood has a thousand,
19 33.6 is less than a thousand.
20 Q. A lot less?
21 A. It's significantly less.
22 Q. Okay.
23 Now, what about Item 117. How many
24 nanograms did that have?
25 A. Again, I don't have any of this committed
26 to memory.
27 Q. Item 117 had 150 nanograms, didn't it?
28 Do you have any idea about that, sir?
94
1 A. Well, I know it had more than the others.
2 Q. And Item 117 is a stain collected on the
3 back gate?
4 A. That's correct.
5 Q. That was checked on July 3?
6 A. It was collected after the others, that's
7 correct.
8 Q. Collected about 19 days after the five
9 other swatches, right?
10 A. Sounds about right.
11 Q. About five times as strong in terms of
12 nanograms, right?
13 A. Approximately, yes.
14 Q. And you know that the Bundy walkway was
15 washed down after the crimes, right?
16 A. I did not know that.
17 Q. Never heard that.
18 A. I mean I -- again, that part of the
19 transcript -- I mean I may have read that at one
20 point. Again I -- again, that's not something that
21 was fundamental to my part of this investigation.
22 Q. Okay.
23 Now, you can have contamination in terms
24 of DNA from simply changing gloves, right, you can
25 transfer DNA by changing gloves, transfer from one to
26 the other, right?
27 A. Can you be a bit more explicit.
28 Q. Sure. If you have DNA on your right hand
95
1 and you touch the left hand with it, you can transfer
2 the DNA?
3 A. Yes.
4 Q. You can transfer it when you pick up some
5 tweezers, right?
6 A. It's possible.
7 MR. LEONARD: Can I stop holding this?
8
9 (Indicating to chart.)
10
11 MR. P. BAKER: You can put it down.
12 MR. LEONARD: Thanks.
13 Q. (BY MR. P. BAKER) You can transfer DNA
14 when you touch your glasses, right?
15 A. It's possible.
16 Q. Now, did the plaintiffs show you the
17 demonstration that Andrea Mazzola did of her best
18 collection techniques?
19 A. I have never seen any collection
20 techniques of Andrea Mazzola.
21 Q. They never showed you -- they never
22 showed you the videotape that Andrea Mazzola presented
23 at the prosecution of -- about what was her best
24 collection techniques?
25 A. I am not -- I have never seen that, no.
26 Q. Okay.
27 You never heard that in that videotape
28 she touches the pavement, moves the swatches,
96
1 transfers the tweezers, touches her glasses; you never
2 heard anything like that?
3 A. No. I mean --
4 Q. Answer my question yes or no.
5 A. I mean I have heard bits and pieces of
6 this, yes -- I mean from the transcript, reading the
7 transcript of the civil trial.
8 Q. And you have no independent knowledge, as
9 you sit here today, how Andrea Mazzola collected the
10 swatches at the crime scene, correct?
11 A. Personal knowledge?
12 Q. Yeah.
13 A. Well, I read the transcript.
14 Q. Personal knowledge, independent
15 knowledge; you have none, right?
16 A. Other than from the official transcript I
17 have none.
18 Q. Okay.
19 Now, you can have contamination by
20 bottles of reagent, right?
21 A. You can, right.
22 Q. That's another liquid that's used when
23 you're working with DNA; the liquid you use in the
24 process, correct?
25 A. You may, yes.
26 Q. And in your lab you use reagents, right?
27 A. We do.
28 Q. How often do you change those reagents?
97
1 A. It all depends on the reagent.
2 Q. Okay.
3 Do you leave some reagents there for more
4 than six months?
5 A. Some reagents are years old, yes.
6 Q. Okay.
7 Had you ever looked at the reagents of
8 the LAPD crime lab?
9 A. I did.
10 Q. Did you see that a lot of the reagents
11 used were old?
12 A. I'm not sure what old means.
13 Q. More than six months old?
14 A. Well, there were some reagents that were
15 that old, but I saw no reason to worry about those,
16 no, I didn't.
17 Q. So you had no concerns about reagent
18 contamination at the LAPD crime lab; is that your
19 testimony?
20 A. I see absolutely no evidence of reagent
21 contamination at LAPD. That is my testimony.
22 Q. And that's in terms of all the work
23 you've done on this case; that's your testimony?
24 A. In terms of the work on this case, I --
25 the work presented in this case, I have seen no
26 evidence of reagent contamination.
27 Q. I'm talking about the civil case and the
28 criminal case.
98
1 You've never said to anyone that you were
2 concerned about reagent contamination at the LAPD
3 crime lab?
4 A. Have I observed reagent contamination.
5 Q. At the LAPD crime lab.
6 A. I have.
7 Q. Now, contamination can happen pretty
8 easily, right?
9 A. It can.
10 Q. DNA can transfer from surface to surface
11 without anyone seeing it, right?
12 A. I mean something has to make that
13 transfer occur. But it can occur -- you can't see
14 DNA, so sure, it can occur without you seeing it.
15 Q. And you're talking about Mr. Yamauchi's
16 work with the reference vial, and you basically told
17 this jury you had no criticism of Colin, right?
18 A. I have no criticism whatsoever of the way
19 he removed the blood from that vial, that's correct.
20 Q. He spilled the blood, didn't he?
21 A. There's no place that he says he spilled
22 blood that I could find.
23 Q. You never heard that before?
24 A. I mean I've heard it said that he spilled
25 blood. Colin never said he spilled blood.
26 Q. Did you review his civil trial testimony?
27 A. I did.
28 Q. Now, Dr. Popovich, you wouldn't work at
99
1 the same area with the reference vial and evidence
2 samples, right? You wouldn't?
3 A. Well, if one is working with a sample
4 with high DNA amounts and other samples with lower DNA
5 amounts, one can work with those very easily at the
6 same time, yes.
7 Q. So you would do it?
8 A. Well, one has to be conscious, one has
9 to -- one has to know what they're doing to do that,
10 but yes, one can do it, and we do that in my own lab.
11 Q. I'm going to read page 54 of your
12 deposition taken on August 15, 1996.
13
14 (Mr. P. Baker read a portion of
15 the deposition transcript of
16 Bradley Popovich.)
17
18 Q. Is it good practice to process
19 reference samples at the same location
20 within the same sitting as evidence samples?
21 A. Well, it all comes down -- I
22 mean one has to be very precise about this.
23 I mean if you're asking me is it good
24 practice for me to have a reference tube of
25 blood and right next to it have evidence
26 that I'm working with that is going to be in
27 trace amounts, potentially in trace amounts,
28 the answer is no, that's not good practice.
100
1 Q. (BY MR. P. BAKER) Remember testifying to
2 that?
3 A. I sure do.
4 Q. You would work with the reference vial on
5 the same table as evidence samples, is that what
6 you're telling this jury?
7 MR. LAMBERT: Misstates the evidence if we're
8 talking about what Colin Yamauchi did.
9 MR. P. BAKER: I'm asking a question.
10 MR. LAMBERT: It's irrelevant otherwise.
11 THE COURT: Overruled.
12 Q. (BY MR. P. BAKER) You may answer.
13 A. We work with samples with high
14 concentration and low concentration samples on the
15 same table all the time.
16 Q. Well -- really?
17 A. Yes.
18 Q. Do you bleach down the area in between
19 samples?
20 A. No, we do not.
21 Q. Do you use UV rays when you change your
22 notes?
23 A. No.
24 Q. You change the paper at least?
25 A. It all depends.
26 Q. Sometimes you don't?
27 A. Sometimes it's unnecessary.
28 Q. Okay.
101
1 You think that's good practice?
2 A. It entirely depends on the sensitivity of
3 what one's trying to do.
4 If one is executing a procedure where one
5 is looking for single molecules of DNA, it would be
6 absolutely essential to do -- to bleach, to change the
7 paper, to do everything that you're alluding to.
8 If one's working with a test that has a
9 much higher threshold of sensitivity, it becomes
10 necessary to do those types of things. It all depends
11 on what you're threshold of sensitivity is.
12 Q. The LAPD didn't bleach down the area,
13 change the paper, or use UV rays on the notes when
14 they processed these evidence samples, right?
15 A. It's my understanding from personal
16 conversations with Colin Yamauchi, and from his
17 transcript, that he did not work with a reference vial
18 of blood at the same place that he worked with the
19 samples on June 14.
20 Q. Okay.
21 That's your understanding?
22 A. Well, it's my understanding from being in
23 the room and having him show me exactly where he did
24 it.
25 Q. Well, you weren't there on June 14, were
26 you?
27 A. Well, he took me in the room and said, on
28 June 14 I sat here and did this and I went over there
102
1 and did that.
2 Q. If he testified differently, your opinion
3 as to how he handled the reference samples would be
4 null and void?
5 MR. LAMBERT: Objection, assumes facts not in
6 evidence. He didn't testify differently.
7 THE COURT: Overruled.
8 MR. P. BAKER: You can answer.
9 A. His testimony from the transcripts is
10 exactly what I'm just saying.
11 Q. (BY MR. P. BAKER) If he testified
12 differently, your opinion would be different, right?
13 A. If he --
14 MR. LAMBERT: It's like saying if he said
15 something different than what he said, his opinion
16 would be different. It's completely improper.
17 THE COURT: It's foundational. He can show
18 that's different if that's what he wants to show.
19 MR. LAMBERT: He's specifically misstating the
20 evidence.
21 MR. P. BAKER: Your Honor's arguing. You can
22 answer.
23 A. If Colin said something different, I
24 would have to take into account what he said in
25 forming my opinion.
26 Q. Okay. You can get strike that.
27 Contamination the difference between
28 contamination and cross-hybridization is difficult to
103
1 ascertain, right?
2 A. It can be very difficult.
3 Q. And the dots on the DQ Alpha strip are
4 will meant to reveal the presence of DNA, correct?
5 A. Yes.
6 Q. And weak signals can reflect the defect,
7 right?
8 A. I'm sorry a defect, an artifact, it can
9 show that a sample's not been washed properly.
10 Q. Weak signals can do that?
11 A. Weak signals can be due to a number of
12 things.
13 Q. And if a testing kit is prepared by Kirk
14 and
15 Zelmer (phonetic) is properly used you won't get the
16 weak signals, correct?
17 A. If a kit is properly prepared by Perkin
18 Elmer, you would not get these signals you're saying.
19 Q. Yes.
20 A. Again it just depends on how one executes
21 the test.
22 Q. If it's properly used, you're not going
23 to get cross-hybridization, true?
24 A. I'm not sure I follow your question
25 exactly. There's experimental variations and even if
26 one follows the protocol to the "T," it's possible
27 that one can get
28 cross-hybridization.
104
1 Q. Did you ever see photographs of blood on
2 the side of the reference vial?
3 A. Blood on the side of the reference vial.
4 Q. This reference vial blood that spilled
5 over on the side of it?
6 A. I never looked at his reference vial.
7 Q. They've showed you pictures of the
8 reference vial?
9 A. I may have seen it but again that is --
10 Is something that I never studied and looked at in any
11 great detail.
12 Q. Okay.
13 I want to talk to you a little bit about
14 some of the testimony you referred to a little bit
15 earlier.
16
17 (Exhibit 1279 displayed.)
18
19 Q. You've seen this board before, right?
20 Civil exhibit 1279 is up on the . . .
21 A. I have seen this, yes.
22 Q. Okay. Now, QC816 is the quality control,
23 right, for the DOJ testing of the DQ Alpha strip?
24 A. Yes, it is.
25 Q. And that was supposed to come up with
26 1.2, 1.2, right?
27 A. That is correct.
28 Q. And every person has only two alleles,
105
1 correct?
2 A. That is correct.
3 Q. Did -- there's more than that. It's
4 either an artifact or it's contamination, true?
5 A. It's an artifact or it's contamination.
6 An artifact in a broad sense, it can be due to any
7 number of experimental variabilities and if one is
8 calling all those artifacts, it can be due to artifact
9 or contamination.
10 Q. But the DOJ testing of the DQ Alpha strip
11 QC816 didn't come back as only 1.2, 1.2, did it?
12 A. It did not.
13 Q. It showed a 1.3 also, correct?
14 A. That's correct.
15 Q. Okay. And the positive control which is
16 submitted in order to determine whether the DQ Alpha
17 testing is being done properly didn't come back the
18 way it was supposed to either, did it?
19 A. Well --
20 Q. Let me rephrase it. That's not a very
21 good question. The positive control was supposed to
22 come back as a 1.1, 4?
23 A. That's correct.
24 Q. It also had a hint of a 1.3?
25 A. That is correct.
26 Q. So both controls came back with a hint of
27 1.3 where they shouldn't have, right.
28 A. It's a very, very weak 1.3; the DOJ
106
1 policy is anything they see, they write.
2 Q. Okay.
3 And LAPD item 30 had the same 1.3 hint,
4 right?
5 A. That's correct I'm not sure that the 1.3
6 hint is actually what Colin Yamauchi would have
7 written. I'm not sure he uses the same terminology
8 but there is a very faint 1.3 that one can see.
9 Q. And the 1.3 determination of LAPD item 30
10 should be questioned, but you had a 1.3 on the QC816
11 control and you had a hint on the CSC816 control and
12 you had a hint of the 1.3 on the positive control,
13 right?
14 A. Well --
15 Q. Just answer that question, sir.
16 A. Well, whenever one is looking and
17 evaluating these strips, one has to evaluate what was
18 done at LAPD and parallel with everything else that
19 was done in that same run at LAPD, what was done at
20 DOJ with everything else that was done with DOJ on
21 that particular run.
22 Q. I guess my question was poor. LAPD
23 determined this 1.3 to be of evidentiary value, right?
24 A. LAPD reported that as a faint 1.3.
25 Q. Then when they looked at QC816, and the
26 positive control, they discarded the 1.3 findings on
27 the two controls, right?
28 A. They discarded -- I'm sorry, can you
107
1 repeat the last part.
2 Q. They ignored them?
3 A. They ignored the -- The faint 1.3, you're
4 saying?
5 Q. Right.
6 A. They didn't ignore it.
7 Q. Well if the control showed a 1.3 at the
8 QC816 and it showed a 1.3 as a positive control, this
9 1.3 on LAPD item number 30 should be questioned as
10 well. You'd agree with that, wouldn't you?
11 A. One has to question anything you see.
12 Q. Okay.
13 But they, nonetheless, determined that it
14 was a 1.3 dot on LAPD item 30 regardless of the 1.3
15 dots on the other two controls, true?
16 A. It's true they were -- they reported
17 there was.
18 Q. Okay. Now, reviewing those dots is
19 pretty subjective, correct?
20 A. Can be, yes.
21 Q. Now, you've seen the other board which is
22 civil 1281.
23 Okay. Now civil 1 -- or civil 1281, get
24 them mixed up with the numbers.
25 Now, on this one, the positive control
26 should have come back as a 1.1, 4, right?
27 A. That's correct. It was the same positive
28 control that was used before.
108
1 Q. And it again indicated a hint or trace of
2 a 1.3, right?
3 A. That's correct.
4 Q. Now, the QC877 should have come back at
5 3, 4?
6 A. That's correct.
7 Q. But it came back with a trace of 1.3,
8 true?
9 A. That's correct.
10 Q. Now, LAPD item number 52, that's a swatch
11 collected on the Bundy walkway. You know that, right?
12 A. Correct.
13 Q. That item showed a trace of a 1.3, true?
14 A. That's correct.
15 Q. Now, on that one, in terms of item 52,
16 they decided to ignore the 1.3 hint on the evidentiary
17 item, right?
18 A. That's Gary Sims, his explanation of
19 that?
20 Q. I don't want his explanation, they can
21 argue it. They've heard it -- they've determined it
22 to be a 1.3 hint but they ignored it, right based on
23 the controls?
24 A. They didn't ignore it. He's got it up
25 there.
26 Q. But they didn't put that down in they're
27 results as the findings of the possible source of this
28 blood on item 512, correct?
109
1 A. Well on every sheet that I've seen in
2 every board it's listed up there it's a 1.1, 1.2 and a
3 1.3?
4 Mr. Simpson doesn't have a 1.3 allele.
5 Q. Again, it's subjective science, true,
6 Dr. Popovich?
7 A. It can be, yes.
8 Q. Now, I want to show you the next board,
9 Civil 1276.
10 Now, you reviewed all of Dr. Gerdes's
11 testimony, right?
12 A. I did.
13 Q. And you had no opinions rendered on
14 direct about his testimony as to the contamination in
15 the reference samples, did you?
16 A. I had no opinion on that.
17 Q. You weren't asked any questions by
18 Mr. Lambert about the reference sample contamination?
19 A. I don't believe I was.
20 Q. Okay. Now -- and this board also shows
21 that OJ Simpson doesn't have a 1.3 allele on DQ Alpha
22 line, right?
23 A. That's correct.
24 Q. Okay. And what's a GC locus system?
25 A. Well, it's one of the markers that is
26 incorporated into the polymarker.
27 And it stands for group specific
28 compliment and it's just one of the genes that is
110
1 incorporated into that test.
2 Q. Okay.
3 Mr. Simpson's locus -- strike that.
4 Mr. Simpson's the only one with a GC
5 locus?
6 A. It appears that he is, yes.
7 Q. Okay. Nicole Brown Simpson had an A, C
8 Ron Goldman had an A, A, right?
9 A. Yes. That's correct.
10 Q. Okay. Now, in terms of the reference
11 sample of Nicole Brown Simpson, the reference is
12 sample supposed to be absolutely clean, correct?
13 A. Oh, this -- it should be, yes.
14 Q. Taken right out of the person's body,
15 right?
16 A. It can be, yes.
17 Q. And on June 14 the reference samples were
18 teste