Cross-examination of Dr. Terry Lee

📄 Cross-examination of Dr. Terry Lee — Thursday, January 16, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\16\CROSS-EXAMINATION-OF-DR-TERRY-.DOC

TRIAL

▲ Day 43 of 57

◀ Direct examination of Dr. Terry Lee Cross-examination of F. Lee Bailey ▶

Witness: Dr. Terry Lee
Examiner: Robert Baker
Called by: Plaintiff • Date: Thursday, January 16, 1997 • Utterances: 126

Baker cross-examines Dr. Terry Lee, a defense EDTA expert hired to rebut FBI Agent Rodger Martz's finding of EDTA in the blood on the socks and back gate. Baker attacks the foundation of Lee's opinion by establishing that Lee did no independent testing, was prohibited by plaintiff's counsel from contacting Martz, and that his 'ghosting/carryover' theory is speculative because he had no information about how Martz ran his lab. Baker also uses Lee's own notes to suggest Lee's goal was to 'explain away' the EDTA rather than objectively analyze it.

# 1 A:

Yes.

# 2 Q:

Despite, therefore, the small trace showings that we have on this chart for the evidence sample, are you of the opinion, Doctor, that there is no way that those evidence samples could have come from a purple-top test tube?

# 3 MR. BAKER:

Leading, suggestive.

# 4 THE COURT:

You may answer.

# 5 A:

That's my opinion, yes.

# 6 MR. LAMBERT:

I have no further questions.

# 7 THE COURT:

Cross-examine. CROSS-EXAMINATION BY MR. BAKER:

# 8 Q:

Good morning, sir.

# 9 A:

Good morning.

# 10 Q:

Now, Dr. Lee, as I understand it, you were hired to refute the presence of EDTA in the blood samples that came from the socks and the back gate that was tested by Agent Martz, correct?

# 11 A:

I was hired to review the data and give an expert opinion about it.

# 12 Q:

And you were -- in terms of your review, you relied upon agent Rodger Martz, right?

# 13 A:

I reviewed his data; I did not talk to him personally.

# 14 Q:

Well, you relied upon the data that he had generated; you relied upon the testimony that he gave at the criminal trial; true?

# 15 A:

That's what I used. That's the evidence that I looked at, yes.

# 16 Q:

And you were told by Mr. Lambert here, not to contact Rodger Martz, were you not?

# 17 A:

I was told that I could not contact him.

KEY QUOTE

# 18 Q:

And you were told that you could not contact Rodger Martz because the FBI didn't want to get involved in the civil case?

# 19 A:

That was my understanding.

# 20 Q:

Did you know there's an FBI agent in town waiting to testify in this case?

# 21 A:

No, I didn't.

# 22 Q:

Do you know that we've had two FBI agents testify in this case?

# 23 A:

No.

# 24 Q:

Did you ever again ask to contact Rodger Martz to see what his opinions were relative to whether or not a ghost effect or cross-over could be the reason for the levels of EDTA in the samples in the -- from the back gate and the socks?

# 25 A:

No.

# 26 Q:

You were aware when you did your -- arrived at your opinions, that Rodger Martz was not requested to find quantities in EDTA, correct?

# 27 A:

He was requested to determine whether or not there was evidence that the blood from the evidence samples came from a purple-top tube.

# 28 Q:

Next in order. Have you ever seen the letter of Mr. Harmon from the D.

A.'s office to the -- to Rodger Martz?

# 29 A:

I don't know. If it was included in the volumes of materials I had, yes, I saw it.

# 30 Q:

It would be important for you to know exactly what Rodger Martz was attempting to do in arriving at your opinions and conclusions, since you didn't do any test to determine EDTA in any sample, correct?

# 31 A:

Would you state that again? I'm not sure I followed it.

# 32 Q:

Okay. Sure be happy to. You did absolutely no testing yourself, correct?

# 33 A:

That's correct.

# 34 Q:

And you don't have -- never designed a test to determine the presence or absence of EDTA; correct?

# 35 A:

That's correct.

# 36 Q:

And you knew from your reading of material, that Rodger Martz had never designed a test to determine the presence or absence of EDTA in any material; correct?

# 37 A:

Prior to the work that he did, that's correct.

KEY QUOTE

# 38 Q:

Okay. And you're aware it took him a week to design the test; correct?

# 39 A:

That's correct.

# 40 Q:

You're aware that when he designed this test, he did not design it to determine quantities; true?

# 41 A:

That's partially true. He did not design it to actively determine quantities.

# 42 MR. LAMBERT:

Objection. Object to the use of this exhibit, not being relied upon by the witness in giving his opinion.

# 43 THE COURT:

Sustained.

# 44 MR. BAKER:

It's in evidence, Your Honor. It's cross-examination of this witness.

# 45 MR. LAMBERT:

It's not in evidence.

# 46 THE COURT:

Show it to him.

# 47 MR. BAKER:

Huh?

# 48 THE COURT:

Show it to him.

# 49 MR. BAKER:

All right.

# 50 MR. LAMBERT:

It's not in evidence. I object to it going into evidence.

# 51 THE COURT:

He said in evidence, or -- it's not in evidence?

# 52 MR. LAMBERT:

No.

# 53 MR. BAKER:

Is it in evidence?

MR. P. BAKER: I don't think that document is in yet.

# 54 MR. LAMBERT:

There's no foundation.

# 55 THE COURT:

Okay. I'll sustain the objection.

# 56 Q:

(BY MR. BAKER) Well, let me ask you this: You certainly became aware, from reading the testimony of Rodger Martz in the criminal trial, that he was to refute the possibility that the stain on the socks would -- could have come from Nicole's reference sample, sample number 59; correct?

# 57 A:

It was his purpose to determine if that was a possibility, yes.

# 58 Q:

And he was also to refute the possibility that item number 117 could have come from Mr. Simpson's reference sample; right?

# 59 A:

He was asked to determine if that was a possibility, yes.

# 60 Q:

And he was asked to make those determinations and not to quantify at all. And, in fact, he didn't quantify; true?

# 61 A:

He did not accurately quantify the level of EDTA in those samples; that's correct.

# 62 Q:

He didn't even attempt to quantify at all in designing his test, did he, sir?

# 63 A:

Well, that depends upon what you mean by "quantify." Any occasion, in order to draw a conclusion, you have to have some idea about the quantity involved; otherwise, you can't draw a conclusion based upon whether or not it's even there.

# 64 Q:

Let me read to you what you read of Mr. Martz's testimony in the criminal trial at 38641, lines 1 through 5.

# 65 Q:

By the way, is the method that you used, any of the methods that you used, quantitative methods?

# 66 A:

I did not specifically use these methods to quantitate the amount of EDT

# 67 A:

That's what his testimony was, was it not, sir?

# 68 A:

That's correct.

# 69 Q:

Okay. Now, you in coming and arriving at your opinions, are not saying that wasn't EDTA; you're saying that the amount -- the quantity is too little; and hence, you don't believe it came from a purple-top test tube, correct?

# 70 A:

That's correct.

# 71 Q:

So you are using quantities, where Mr. Martz, in his tests, determined -- or attempted not to quantify anything; correct?

# 72 A:

The --

# 73 Q:

Well, can you answer that?

# 74 A:

It's a matter of semantics.

# 75 Q:

Can you answer that question, sir?

# 76 A:

Yes. Could you ask it again?

# 77 Q:

You are attempting to use quantity to -- in arriving at your opinion that -- that this EDTA that was found in the samples from both the back gate and the socks, was not EDTA from a purple-top test tube; correct?

# 78 A:

Yes.

# 79 Q:

All right. And you are fully aware that Rodger Martz does not use quantity to make any determination relative to EDTA, nor was he asked to; correct?

# 80 A:

By the strict definition of quantitative analysis, he was not doing that.

# 81 Q:

Can you answer my question, sir? He was not using --

# 82 A:

I can answer. I can tell you, as an expert, that I could draw no conclusions whatsoever unless he had some measure of the amount of material present.

KEY QUOTE

# 83 Q:

Now --

# 84 A:

He has to know the limits of the sensitivity, the limits of his detection, limits -- all these things he has to know, or his analysis means absolutely nothing.

# 85 Q:

And you're aware that he testified that the levels of EDTA or -- strike that -- what he found on the 206 and 207 was consistent with EDTA on the back gate and the socks, correct?

# 86 A:

No.

# 87 Q:

Maybe we'll get that in a minute.

# 88 MR. BAKER:

You want to put that up?

MR. P. BAKER: This is next in order.

# 89 THE CLERK:

2405.

MR. P. BAKER: Dr. Lee's notes. (The instrument herein referred to as Dr. Terry Lee's notes was marked for identification as Defendant's Exhibit No. 2405.)

# 90 Q:

(BY MR. BAKER) Now, you said in your notes --

# 91 MR. BAKER:

Go down to outcome No. 3.

MR. P. BAKER: (Adjusts Elmo.)

# 92 MR. BAKER:

Back it off, please.

# 93 Q:

(BY MR. BAKER) "If detectable levels of EDTA are found in the stains, but significantly lower than the levels from blood in the tube, then interpretation becomes problematic." What you meant by that, sir, it becomes a problem to determine the EDT

# 94 A:

Isn't that true, sir?

# 95 MR. LAMBERT:

Objection. Argumentative.

# 96 A:

No.

# 97 Q:

(BY MR. BAKER) Let's go down to the next one. You say, if not planted -- can you read that for us -- convincing argument must be found why EDTA is present at that level.

# 98 A:

Yes. You want me to read it?

# 99 Q:

Yes, because I have trouble reading your writing.

# 100 A:

So do I.

# 101 Q:

I can understand that.

# 102 A:

"If not planted, convincing argument must be found for why the EDTA is present at these levels.

KEY QUOTE

# 103 Q:

Now, read the next one.

# 104 A:

I can't even finish that one.

# 105 Q:

I'm sorry.

# 106 A:

I think it's -- I don't know that word.

# 107 Q:

You were attempting to find convincing argument as to why the EDTA --

# 108 A:

Oh, I think I can do it now. One would be direct contamination from either the environment or contamination from the lab during the sample analysis.

# 109 Q:

So you were attempting to find convincing argument to explain away the EDTA found by Rodger Martz, and you understood that to be your -- your -- your goal; correct, sir?

# 110 A:

No, that wasn't my goal. My goal was to understand why the trace levels that were observed in that particular analysis were there.

# 111 Q:

Well, now, so you came up with this ghosting or carry-over effect from the equipment, correct? That's your theory of why these levels of EDTA were found by Rodger Martz?

# 112 A:

Another most reasonable explanation, yes.

# 113 Q:

You have no information whatsoever about how Rodger Martz runs his lab, correct?

# 114 A:

Direct information, no.

# 115 Q:

And from a the available data, you can't determine what the matrix used to dissolve the sample. You can't determine the quantity and you can't determine the volume equilibrium was done before the next analysis, can you?

# 116 A:

There was statements in the materials that I reviewed with -- with regard to the matrix, with -- with -- with regard to rough estimations about the quantity. I have no information at all with regard to the exact procedures with respect to the chromatography and the sample injection procedures.

# 117 Q:

You would agree it's sheer speculation --

# 118 MR. BAKER:

You can take that down.

# 119 Q:

(BY MR. BAKER) -- it's sheer speculation on your part as to whether or not there was any ghosting or cross-over effect; true?

# 120 A:

No. My opinion is based upon evidence.

# 121 Q:

Well, your opinion --

# 122 A:

The data that's present there tells me something.

# 123 MR. PETROCELLI:

Need a break, Your Honor for the juror? (Juror is coughing.)

# 124 THE COURT:

Do you want to take a recess? JUROR: I'm okay.

# 125

THE COURT: All right. You -- All right. Let's a take a ten-minute recess. (Recess.) (Jurors resume their respective seats.) CROSS-EXAMINATION BY MR. BAKER:

# 126 Q:

You discussed in your deposition the way to design an experiment in such a way there would be no carryover effect?

Temperature

tense

Key Quotes (5)

Dr. Terry Lee

I was told that I could not contact him.

Reveals that Lambert instructed Lee not to contact Martz, undermining the independence of Lee's expert opinion and suggesting plaintiff's counsel controlled the scope of the defense.

Dr. Terry Lee

That's correct.

Lee admits he did absolutely no testing himself and never designed a test to determine EDTA presence or absence — gutting the empirical basis for his opinion.

Dr. Terry Lee

If not planted, convincing argument must be found for why the EDTA is present at these levels.

Lee reading from his own notes — Baker uses this to argue Lee's goal was advocacy (explaining away EDTA) rather than neutral scientific analysis.

Dr. Terry Lee

So do I.

Lee admits he can't read his own handwriting, providing a rare moment of levity and humanizing the witness mid-cross.

Dr. Terry Lee

I can tell you, as an expert, that I could draw no conclusions whatsoever unless he had some measure of the amount of material present.

Lee defends Martz's implicit quantification, inadvertently supporting Baker's point that Lee himself is relying on quantity where Martz explicitly was not tasked to quantify.

Evidence (3)

Defendant's 2405

Dr. Terry Lee's handwritten notes, including observations about EDTA interpretation being 'problematic' and the need to find a 'convincing argument' if the blood was not planted

Marked for identification; Baker reads from it during cross to challenge Lee's objectivity

Informal

Rodger Martz's criminal trial testimony (transcript page 38641, lines 1-5) regarding whether his methods were quantitative

Baker reads passage aloud to impeach Lee's characterization of Martz's methodology

Informal

Letter from D.A.'s office (Harmon) to Rodger Martz regarding the scope of his EDTA analysis

Baker asks whether Lee reviewed it; Lee uncertain

Notable Exchanges (3)

Mr. Baker•Dr. Terry Lee

Baker establishes that Lambert told Lee he could not contact Martz because 'the FBI didn't want to get involved in the civil case,' and then reveals that two FBI agents had in fact testified in the case — implying Lee was kept ignorant to protect the opinion.

strategic

Mr. Baker•Dr. Terry Lee

Baker uses Lee's own notes — 'If not planted, convincing argument must be found' — to argue Lee's role was advocacy, not science. Lee pushes back, saying his goal was to 'understand why the trace levels were there.'

heated

Mr. Baker•Mr. Lambert•The Court

Dispute over whether a document was in evidence. Baker insists it is; Lambert says no foundation. Court sustains, creating a moment of procedural confusion with both Bakers conferring.

procedural

Light Moments (1)

Dr. Terry Lee / Mr. Baker

Baker says he has trouble reading Lee's handwriting; Lee responds 'So do I.' Baker: 'I can understand that.'

Credibility Attacks (3)

⚔ Dr. Terry Lee

Bias / limited scope of inquiry

Baker establishes Lee was told not to contact Martz, did no independent testing, and had no knowledge of Martz's lab procedures — showing Lee's opinion rests entirely on secondhand data with artificially constrained investigation.

⚔ Dr. Terry Lee

Prior inconsistent notes / advocacy framing

Baker uses Lee's own handwritten notes to suggest his analytical goal was to 'find convincing argument' to explain away EDTA rather than conduct neutral analysis.

⚔ Dr. Terry Lee

Methodological contradiction

Baker forces Lee to admit he is using quantity-based reasoning to undermine Martz's findings, while Martz was explicitly not asked to quantify — making Lee's critique depend on a standard Martz was never tasked to meet.

Witness Demeanor

Witness asks Baker to restate questions multiple times, suggesting either difficulty following compound questions or deliberate caution

Witness gives lengthy explanatory answers rather than yes/no, resisting Baker's attempts to pin him down

Juror coughing prompts a ten-minute recess mid-cross

Objections

3 objections (2 sustained, 0 overruled)

Proceeding 8840 • 126 utterances • Plaintiff witness

Civil Trial

Department 103