You are still under oath.

Would you please state your name again for the record.

My name is Gary Alan Sims.

GARY ALAN SIMS, the witness on the stand at the time of the adjournment on November 14, 1996, having been previously duly sworn, was examined and testified further as follows:

CROSS-EXAMINATION BY MR. BLASIER:

Good morning, Mr. Sims.

Good morning.

Can you tell me -- give me an approximation of the amount of time that you've spent on this case, working for the plaintiffs?

Just The civil matter now?

Yeah.

Now, do you keep a detailed billing of your hours?

Yes. I've kept records of the time that I've spent. And that -- that 20 hours didn't include the testimony part.

Okay.

And do you charge the plaintiffs for the time that you spend on the case?

The state -- the state has some kind of a policy where they bill the attorneys for my time on the case, yes.

Do you know whether this -- the state has been paid anything for the work that has been done so far?

To date -- no bill has been issued to date.

In preparing for your testimony, how much time did you spend with Mr. Lambert?

Well, I would estimate about 16 hours, two days, something like that.

And did he have a whole set of questions all typed out, ready to ask you?

He had an outline of some of the issues that he wanted to bring up on his direct, yes.

Were they typed questions that you went over with him?

They were -- They weren't questions; it was just an outline that I reviewed with him.

Okay.

One of the things you talked about yesterday was the ability of DNA testing to be used to exclude people.

Do you remember that?

Yes.

And when you have an exclusion, it means that you can tell from whatever test you've done, that clearly two bands or two of the dots on a testing strip or whatever, clearly show that the DNA from the evidence is different from the DNA from the suspect, correct?

Yes; I think that's a pretty good definition.

That's all you need to do to reach an exclusion, correct?

Yes, in most cases, and assuming the test was run properly, et cetera.

Okay.

And where you have an inclusion, or where you can't rule somebody out, that's where you get into the area of interpreting band lengths and statistics and coming up with numbers, one in so many billion, whatever, correct?

Yes.

That whole aspect of the technology has no relevance to exclusion, does it?

You would still do band lengths, for example, to an exclusion.

To show an exclusion, you can visually see it in most cases. You would also do that part of it.

As far as the statistics, you wouldn't need to; you'd just have an exclusion.

Okay.

And you indicated that in your lab, when you're sent evidence and reference samples from suspects, you exonerate people up to 25 percent of the time, correct?

Something like that.

I think I gave a figure of 20, 25, something in there.

Some labs, like the FBI, said 30 -- or a third?

Yes, some labs have higher.

That may be due to the fact that we sometimes have prescreening tests, conventional serology, for example, that's done first. So there may be more likelihood that we would include on that basis, if earlier tests have also included.

And that's people that have been arrested, in some cases charged, and in some cases are in prison, correct?

We -- I don't think in our laboratory, we've done any cases where somebody is already in prison. There have been others nationwide -- there are other cases like that, though.

So is it accurate to say that of the cases that are sent to you, where the police have focused on somebody as a suspect, you're able to show that they're wrong 25 percent of the time?

Well, it's -- as far as that focus, we've been able to exclude that individual.

Sometimes these are just sort of checking the -- checking somebody's DNA against a sample, for example, that is not necessarily a prime suspect, for example, something like that.

I understand what you're saying, basically. That's basically it; that, in other words, there is some suspicion of an individual, and the DNA tests show that that's not the individual who is contributing the DNA. That's -- yeah.

Objection, Your Honor. Misstates the evidence, assumes facts not in evidence.

Sustained.

(BY MR. BLASIER) Mr. Sims, I want to ask you some questions about the procedures you're using in your lab.

And let me do the Elmo first.

MR. P. BAKER: This will be next in order, Erin.

2187.

(BY MR. BLASIER) Putting up on the Elmo, 2187.

Right.

I'll write that down.

Back that out a little bit.

This is a relatively low tech peel away exhibit.

Now, I want you to assume for the purposes of the questions that I'm going to ask you, that this is intended to depict a blood spot or blood drop on the left.

Okay.

And I'm going to ask you questions about what causes degradation of DNA.

You have that in mind?

Okay.

And again, when you're talking about degradation, you're talking about the DNA breaking up into smaller and smaller pieces, correct?

Yes.

And as it does that, it limits your ability to analyze it, correct?

Yes.

It doesn't change the type of the DNA; it just inhibits your ability to examine it?

That's correct.

And can affect how it shows up on an Autorad or dots on the strip?

Yes.

The only way you could have someone else's DNA show up is there is contamination, correct?

Yes, that's basically it.

Phil, can you focus it better?

There's part of the degradation, I think.

(BY MR. BLASIER) Looking at the first column there, it says sample and surface.

Can you get the one on the bottom? If you have a swatch made from a stain, the type of surface that you put it on can affect degradation, can it not?

Yes.

So if you have two different stains, one of them black and one of them is red there, and they are put on two different surfaces, that might affect the quality of the DNA; you might have a difference in quality at that point?

Yes.

And the next column is for the history of the stain. If one stain is treated differently in terms of how long it's refrigerated, whether it's frozen and thawed, whether it's in a room with high humidity or low humidity, all of that can affect the quality of the DNA on that sample, correct?

Yes, to some extent.

So that if you have two different samples from the same blood drop, and one has a different history in terms of how it's preserved and how it's looked at and how many times it's examined, that can affect the quality of the DNA in the samples?

Yes. Especially when you talk about those like preservation; that would be important.

Okay.

And, in fact, in drying a stain, if you have a stain that you transfer to, let's say, a thick paper surface, and you put it in a closed-in area, with no air circulation, that may be warm, that may be humid, that can cause the DNA to start breaking down, correct?

Well, especially if there are other environmental factors that have been introduced to that sample, as opposed to a pristine blood sample.

The one converse is if you have a stain that's put on a thin piece of cloth, for instance, that allows air to circulate through it and it's a fairly porous, that can dry more quickly and preserve the quality of the DNA, correct?

Yes, that would -- that would tend to negate against the deleterious aspects of the environment.

Now, if you take a sample from the same stain at different times, you might wind up with different qualities of DNA, correct?

Well, for example, would it be a stain that's set out in the environment for that long a period of time and then was collected at a later date, is that it?

Yeah.

Yes.

Can we see the next column, please.

(BY MR. BLASIER) Actually, the manner in which a stain is processed once it gets to the lab can affect -- that can add -- that's another factor that can affect the quality of the DNA, correct?

Yes.

And if you have two different samples from the same source, processed at two different times, depending on if you vary the conditions under which they're processed, that might affect the quality of the two samples, correct?

When I say "difference" --

Can you be a little more specific on that?

I'm not quite following you.

Sure.

Let's say the extraction phase where you're removing the DNA from whatever it happens to be on, and coupled that with the phase where you had what are called enzymes, restriction enzymes -- correct?

Yes.

The purpose of those are, that's what breaks it up into pieces that allows it to go in an Autorad from top to bottom --

Yes.

-- by size?

Yes.

That's a mechanism where you're trying to break up the DNA?

Yes; you're trying to break it up in an orderly fashion.

And if you use this one sample on one day, you use a little less DNA -- the same amount of restriction enzyme -- than you use on the second day, that can affect -- you could start degrading the sample if your restriction enzyme is in there a little bit too long, if it's a different quantity?

That's -- I don't think that's a significant factor. I wouldn't say that with the restriction enzyme, as far as the protocols go. The restriction enzyme or the restriction usually can go for a fairly broad period of time without any major differences. That's not significant.

All of these factors that we've talked about can lead to an Autorad that has two samples from the same source that look different because one's more degraded than the other, correct?

Well, yes, all of those factors would go into that.

And the fact that one is more degraded than the other, tells you nothing about whether or not they came from the same source, does it?

Now, when you say "the same source," are you saying --

Same original source.

Same person or same stain? Or that's where --

Let's talk about a stain first.

Okay. Okay.

Is that correct?

In -- In a laboratory setting, if you were to, say, sample a blood stain and take it through your process, and then sample that same stain in the laboratory, now, I wouldn't expect to see much difference there.

Okay. But let's talk about the other factors before that.

Okay.

So you can't really tell from looking at the Autorad at the end of the line, for two different samples that were handled differently, just by how good the banding pattern -- how clear, how crisp the bands are.

You can't really tell anything about the original source of the sample, can you?

I think we need to be more specific. I'm not quite following. You're talking about source. Are you talking about the same individual? Are you talking about --

Yes.

Are you talking about --

Yeah.

Okay.

One would notice that one sample, if they're substantially different in terms of degradation pattern, I think you can make an inference there that something happened to this sample that didn't happen to the other sample.

And that can account for differences in the way the bands appear, not where they are, but how clear they are?

Yes.

Now, let's change the hypothetical just a little bit. And rather than a blood spot, we have a reference tube.

Okay.

And let's say you take a sample out of that reference tube and put it on a thin fabric, like a sock --

Okay.

-- that's allowed to air-dry quickly.

Okay.

And the more quickly it's allowed to dry, the better the quality is going to be in the DNA, correct?

That's correct.

And let's say sample number 2 is taken from the reference vial at a different time --

Okay.

-- put on a different surface, such as a piece of paper, and is allowed to dry in a different way from the sock; that can result in a difference in the DNA, correct, in terms of how it's degraded?

Yes.

And also, I would include the factor that the longer that it's in the liquid state, we see some degradation just from that.

Okay.

That's just because water is the -- is a real enemy to the DNA in the sense that it really enhances degradation, correct?

Well, and there are processes going on inside a liquid blood tube that don't occur once you dye it out on a stain.

Okay.

So that the quality of the blood in a reference tube is going to change over time?

Yes, it will.

And if you take a stain, or if you take a sample from a reference tube, shortly after it's been collected, it's going to be higher quality DNA than if you take a sample a month later?

In most cases, you'll see some -- some differences.

Okay.

And the same reasoning applies to an Autorad. At the end of the line, if you have two samples that came from the same reference tube, but were collected at different times, put on different surfaces, subjected to different conditions, it would not be unusual at all to have one of them high quality and one of them not so high quality?

You threw in the word "unusual." I'm not sure I would use that term.

Can you give me that hypothetical exactly again.

Sure.

If you have two samples taken from the same reference tube, but taken at different times --

Okay.

-- Put on different surfaces, one on a thin cloth, one on a piece of paper --

Okay.

-- subject to different preservation in terms of one may be frozen and thawed many times, or may be left unfrozen for a period of time, as opposed to the other one, it would not be unusual for you to see a difference in quality of those two samples when you do your Autorad?

I would expect in that case, the biggest factor would be how long the liquid was in the tube. That would be correct unless there was something grossly different in the processing.

Well, if the blood that was put on the piece of paper was left in a room or a closed in room with no air circulation, and took longer to dry than on the piece of cloth, that's going to affect the quality of the DNA, too, isn't it?

That could.

But again, if we're talking about a tube sample, it's a fairly clean sample to begin with, so it should be a pretty clean sample to begin with.

To begin with?

Yeah.

Now, when you examined the reference samples in this case, you actually -- you don't -- you don't just accept the typing that was done by LAPD; you retype them yourselves, don't you?

Yes.

And when you're sent a reference sample, they don't send you the blood vial, do they?

Most of the time, we get a swatch or a stain card that's been prepared.

And in this case, the reference samples that you got from LAPD were on what are called Fitzco cards, weren't they?

There were -- there were three sets of victim reference samples in this case. Two of them came in on the Fitzco cards, the paper, and then one of them -- the one I used, not RFLP, came in on like, a swatch material and a gauze sort of cloth.

My understanding is, it was the gauze ones that were actually prepared by the coroner's office. The stains were prepared by the coroner's office, is my understanding.

THE COURT REPORTER: May I have a spelling for Fitzco?

F-I-T-Z-C-O.

(BY MR. BLASIER) And if you had a sample that was on a different surface from your reference sample, subjected to different conditions, even though it came from the same place, there's a difference in quality on the Autorad, would not be surprising?

You could see some slight difference, yes.

Let me show you -- this is Criminal Exhibit 269-A.

MR. P. BAKER: Civil 308.

308.

(BY MR. BLASIER) Does this look -- do you recognize this as one of your Autorads?

Yes, I do. That looks like -- I don't remember which probe that is offhand, but can you show me the bottom of the Autorad?

Sure.

I'm not going to ask you about the probe, but sure.

Yes. Okay.

There's AM616/D1S80. I can see my initials on it now.

And the lane here is the reference sample that you ran for Nicole Brown Simpson, correct?

That's correct.

And the lane here where it says sock, 13A, is the large stain on the sock, correct?

Yes.

And you would agree that the quality of these two look pretty much the same?

I would say they're comparable.

And with your other Autorads on those same samples, do you recall whether there was a difference in quality between -- let me show you this one.

This is 269B criminal.

MR. P. BAKER: 309 civil.

309 civil.

Yes. That one, I think, is D1S7.

(BY MR. BLASIER) And there it appears -- and again, this is the same DNA, isn't it?

Okay. Now -- that was a bad question.

Each Autorad that you make is from the same sample, from the same gel?

Oh, yes. I'm sorry. That's correct.

So we're not looking at a different rung; we're looking at a different -- different sections of the DNA on the same gel?

That's correct.

And you would agree that in this one, the socks appear to be a little more smudgy or not as tight and crisp as the reference sample.

I would say those are comparable, also.

The point is, you can't, by looking at the differences in the quality from the reference sample to the evidence sample, say that they couldn't come from the same source, would you?

Now, when you -- again, when you say "same source," are you talking about the same person?

Same person, or same reference file.

With just --

Misstates the evidence in terms of reference file, Your Honor; misstates the evidence, assumes facts not in evidence.

(BY MR. BLASIER) Well, let's talk about the same person first.

Okay.

So the -- no. I mean, certainly I would say that those bands match all the way down through the probings.

What I'm talking about now is the quality of the bands themselves. The fact that there may be a difference in quality, that doesn't mean they came from different sources, does it?

That's correct.

Okay.

And the same would be true of two samples taken from a reference vial at different times under different conditions?

Well, if they looked -- in other words, if they looked the same, the same type of degradation or lack of degradation.

Or differ doesn't mean it came from the same source, does it?

Not necessarily.

Okay. Thank you.

Now, I want to ask you some questions about the -- about cross-contamination.

Okay.

In cross-contaminations, you can have DNA from one source get into a second source, correct?

Yes.

And with PCR, where you're amplifying small amounts of -- of evidence, if you've got a contaminant in there, that amplifies, as well, correct?

Yes it can, if there's a sufficient contamination.

And the problem of contamination and PCR test, that's kind of the biggest potential problem that you can have with that kind of testing, isn't it?

Yes. It's something you really have to watch for.

And you take very careful precautions to avoid doing things that can result in cross-contamination, correct?

Yes, we do.

Okay.

We're having a little blinking problem, but bear with me.

(Indicating to screen for Elmo).

(BY MR. BLASIER) I want to ask you questions about some of the things that can cause cross-contamination, some of the factors.

Okay.

This isn't cross-contamination; this is degradation. We talked about how the DNA can break up and how you can't get a reading.

Yes.

You've seen these slides, haven't you?

They do look vaguely familiar.

If you have two samples, one that has very high quality DNA, high molecular weight, good DNA, and an evidence sample that has small amounts, maybe not so good DNA; you want to avoid those samples being processed at the same time, if possible, correct?

Yes.

Because the amount of DNA in the good one, there's been -- there's too much DNA; you don't want it to get into the bad one?

Yes.

If you have evidence samples from different crime scenes -- in this case, two different houses, a condo and a house, and a third crime scene being a vehicle, you would be careful not to process samples from those three sources together, correct?

Yes.

And when we say "together," I mean I wouldn't want to do it right together unless, you know, as a general policy -- I know, for example, in our processing of these samples, we process the initial -- the initial contains -- we looked at -- one was from Bundy, one was from Rockingham -- at the same time, but I did separate them by another sample so that they couldn't touch, they wouldn't be contiguous.

They couldn't cross-contaminate each other?

That's why I took the precaution.

And by the same token, you don't process reference samples which is rich in DNA from a blood tube, for instance, with an evidence sample?

Yes, that's correct; we never co-extract those at the same time. We do -- we separate them by time and/or space.

And that's an important consideration, is it not?

I believe it is, yes.

And you try not to process the victims' and the suspects' reference samples together, as well, correct?

Well, if they're both high quality reference samples, I wouldn't be too concerned about that.

I would -- generally, in a case, I would process the reference samples as its own set, but I would keep them together. I don't see a problem with that.

Okay.

If you try to run too many samples at once, you try to do too much work in a short period of time, that creates a danger of making mistakes, too, doesn't it?

I think if one extracts an extreme number of samples, the more likelihood of something going wrong in that area than if you're keeping it down to a lower number.

Okay.

I try to keep it to a lower number.

All right.

Now, I want to ask you some questions about how blood or other biological material can move from one place to another.

You can have what's called an aerosol effect by opening a blood tube, and if you're not careful, you can get, actually, a little aerosol spray of blood, can you not?

Yes, you can.

And if you process samples on a piece of paper on your lab bench -- let's say you dried some swatches in a test tube and you scraped them out after they're dry onto a piece of paper, you can very easily get little, tiny flecks of blood that come from the sides of the test tube on that paper, can't you.

Objection, Your Honor. Beyond the scope; irrelevant.

Overruled.

Well, that would be a concern, depending on the care one takes in doing that. So you would -- you would have to be very careful in doing that.

I would change the paper.

Okay.

You change the paper between each sample, don't you?

Yes.

And that's because of that possible source of cross-contamination?

Well, that more. Just as we process anything, we like to change the paper between the samples.

Okay.

And if you get something on your gloves from one sample and then you process a second sample, that's another source of contamination, is it not?

It's a potential source, yes.

And the instruments that you use to process a sample, if you use those same instruments without doing anything to them and go on to the next sample, that can transfer blood or spray biological material from the first to the second, can't it?

Yes. This is, again, a potential source of contamination.

In fact, you, in your lab, between samples, you flame your tools, do you not?

I personally rinse them and wipe them and then flame them.

And flaming them means putting them under a Bunson burner to make sure you're killing off any of the DNA that might have been on there from the sample you just processed?

Yes; that's the approach I use.

What exhibit was that?

What exhibit was that?

We'll have the collection of slides as the next in order.

2188.

2188.

(BY MR. BLASIER) Now, you would agree, would you not, that there are approximately between 1,000 and 2,000 nanograms in a drop of blood?

That's a reasonable figure, something like that, about a thousand nanograms or a microgram.

And there are about 20 drops of blood in one cc, as an estimate?

Somewhere around there, yeah.

So there would be 30 drops in one and a half cc's?

Something like that, yes.

And in those 30 drops, there would therefore be anywhere from 30,000 to 60,000 nanograms of DNA?

Yes, there would be somewhere in that range.

And all of the DNA in this case that you processed, anyway, was total, far less than that amount of nanograms, correct?

Well, except -- not reference samples.

Correct.

All the evidentiary samples, that's correct.

Yeah.

Now, I want to ask you a couple questions about your statistics.

You use the same concept when you calculate frequencies that Cellmark does, correct?

You use the product rule?

Yes.

And you also, because of imprecision in measurement, you have a window, as well, that you use, correct?

Yes, we do.

And that allows you to declare things that are matches, even though your -- they have different lengths, correct, or look like they have different lengths?

Yes.

In other words, there's a plus or minus that you give to any of these measurements that's acceptable.

Okay.

And you would agree, would you not, that if the -- the length of a fragment in your suspect evidence and the length of a fragment in your evidence are different in any respect, they came from different people, correct?

If -- If there's no, for example, what we call band shift or something like that, there are phenomenon you have to be aware of as an examiner. But in general, what one would see was that the bands were clearly off, and even if they matched at one probe, then sooner or later, they're going to be off in another probe.

I think this might be a good time, Your Honor.

Okay. Ten-minute recess, ladies and gentlemen.