Cross-examination of F. Lee Bailey

📄 Cross-examination of F. Lee Bailey — Thursday, January 16, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\16\CROSS-EXAMINATION-OF-F-LEE-BAI.DOC

TRIAL

▲ Day 43 of 57

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

Witness: F. Lee Bailey
Examiner: Tom Lambert
Called by: Defense • Date: Thursday, January 16, 1997 • Lines: 94

Baker cross-examines Terry Lee about Roger Martz's FBI EDTA testing, including laboratory blanks, procedures, and Martz's own-blood results. Baker reads from a February 16, 1995 Rockne Harmon letter requesting tests for EDTA 'in order to refute' possible reference-sample sources for the sock and back-gate stains; after an objection, the court says the letter speaks for itself. Lee testifies that he was told Martz was unavailable, that he did not know Martz's procedures, and that the EDTA levels reported in Martz's own blood would have been impossible, while adding that Martz did not know that at the time. Lee also testifies that recent testing found no detectable EDTA in normal human blood.

# 1 A:

Yes, we discussed those things.

# 2 Q:

And you had testified that you'd have to be very, very careful about the blank, correct?

# 3 A:

That's correct.

# 4 Q:

You testified that the blank would have to be done exactly the same way the samples were done, using exactly the same matrix, exactly the same volume, and exactly the same procedure?

# 5 A:

Yes.

# 6 Q:

And if you do that, you would have greater confidence that what you were seeing in your samples came from what was exactly in the sample; is that correct?

# 7 A:

That's correct.

# 8 Q:

And you don't know whether or not Roger Martz designed the experiments and was very, very careful about his blank, was done exactly the same way as the samples were done, using exactly the same matrix, exactly the same volume, and exactly the same procedure, do you?

# 9 A:

I know what his blanks are. I don't know about his procedures, yes.

# 10 Q:

And now, you would obviously love to talk to Roger Martz, wouldn't you?

# 11 A:

I think it would be a very interesting conversation.

# 12 Q:

Yeah. And you testified that you'd love to, but Tom Lambert told you couldn't?

# 13 MR. LAMBERT:

Objection, argumentative, misstates its testimony.

# 14 THE COURT:

Overruled.

# 15 A:

He told me that Roger Martz was unavailable.

# 16 Q:

Speaking of Roger Martz; page 17, lines 1 through 11. (Mr. Baker read a portion of Terry Lee's deposition transcript.)

# 17 Q:

Have you ever made an effort to contact him, to ask him whether he agreed with your opinion?

# 18 A:

I was told that he was not available for me to contact.

KEY QUOTE

# 19 Q:

Who told you?

# 20 A:

Tom Lambert.

# 21 Q:

Did he tell you why he was not available?

# 22 A:

Well, I don't recall exactly what he said, but the impression was that the FBI kind of wanted to stay out of the civil matter. I would love to talk to him.

# 23 Q:

(BY MR. BAKER) That's what you testified to?

# 24 MR. LAMBERT:

Objection, improper impeachment, it's not at all inconsistent with what he said.

# 25 THE COURT:

I'll sustain that because you asked, and he answered the same question before in the same way.

# 26 Q:

(BY MR. BAKER) Now, you were talking a little bit during the examination by Mr. Lambert about Roger Martz testing his own blood; do you recall that?

# 27 A:

Yes.

# 28 Q:

And you're aware that Roger Martz threw away all the computer data relative to the test on his own blood, correct?

# 29 A:

That's my understanding. He threw away all the computer data as to any of the test.

# 30 Q:

No one could ever go back and see, but we know -- you are aware that the tests that Roger Martz ran on his own blood is icorrect, correct?

# 31 A:

Incorrect in what sense?

# 32 Q:

That's a poor question. I apologize. The levels that he found in his blood is inconsistent with life, correct?

# 33 A:

If you're saying that it would be impossible for him to have found EDTA levels at those levels in his own blood, that is true, but he didn't know that at the time.

KEY QUOTE

# 34 Q:

He was alive; he knew that, didn't he?

# 35 A:

Yes. But he didn't know it was impossible for him to have EDTA levels that high in his own blood; he did not know that.

# 36 Q:

You talked to him about that?

# 37 A:

No. There's no way I could have known. Nobody knew it at that point.

# 38 Q:

Now, it is common knowledge in the scientific industry that there are no detectable levels of EDTA in a normal human being's blood, correct?

# 39 A:

In the past year there have been two labs that have designed tests to prove that point, and they have determined that there's no detectable levels of EDTA in anybody's blood.

# 40 Q:

And so if, for example, Richard Fox were on the stand yesterday and testified that there can be EDTA levels in human blood, that's incorrect?

# 41 A:

That's incorrect.

# 42 Q:

And we know presently, of course, that EDTA is not in human blood to the level that was found by Roger Martz in his experiments done on the blood samples from both the back gate and the socks, true?

# 43 A:

I'm sorry. That was a long question. I lost part of it. Could you repeat that, please.

# 44 Q:

I get these notes -- I have I got an I.

KEY QUOTE

# 45 Q:

that's about ground level, so I have to rephrase and think back of what I was asking you. But -- But basically, in terms of EDTA, the EDTA that Roger Martz found in his test from the samples of the back gate and the socks would not be in a normal person's blood; you would agree with that?

# 46 A:

I would agree that he could not find -- he would not detect any EDTA in a normal person's blood, that's true.

# 47 Q:

If his test results were in fact accurate, if EDTA was in both the samples from the back gate and the socks, they had to have been planted, if your theory is incorrect; you would agree with that?

# 48 A:

I would say there is another possibility -- there may be another possibility, a possibility that I haven't thought of.

# 49 Q:

Well, you had a lot of time, haven't you?

# 50 A:

Yes.

# 51 Q:

Okay. And your possibility, sir -- you have absolutely no facts to substantiate that there was any cross-over effect or ghosting effect on this machine, true?

# 52 A:

That's not a statement of the facts. There's evidence in the data that would support that conclusion.

# 53 Q:

Your argument, as I understand it, is because of the results, you believe that there is a ghosting or cross-over effect, correct, kind of a bootstrap approach, isn't it?

# 54 MR. LAMBERT:

Objection, argumentative.

# 55 Q:

(BY MR. BAKER) Let me just ask this question.

# 56 MR. BAKER:

I'll withdraw that.

# 57 Q:

(BY MR. BAKER) Let me ask you this question: We've established that you certainly don't know what Roger Martz's lab procedures are, correct?

# 58 A:

That is correct.

# 59 Q:

You certainly do know that he was requested to determine that there was no EDTA in either the sample from the back gate or the socks, correct?

# 60 MR. LAMBERT:

Objection, asked and answered.

# 61 A:

That's not my understanding, no.

# 62 Q:

(BY MR. BAKER) He was given the job to refute any EDTA in the back gate or the sock samples, wasn't he?

# 63 MR. LAMBERT:

Objection, argumentative, Your Honor, been asked and answered as well.

# 64 THE COURT:

You may answer if you know.

# 65 A:

I don't think the word "refute" is correct. I think he was asked to determine whether or not that was a possibility.

# 66 MR. LAMBERT:

I still object to any use of this letter. There's no foundation for it.

# 67 THE COURT:

Sustained.

# 68 MR. BAKER:

I'll lay a foundation. I'll tie it up if I have to get Rockne Harmon to come in here, Your Honor. This was an exhibit in the criminal trial.

# 69 MR. LAMBERT:

Your Honor, Roger Martz was a witness in the criminal trial. He's not a witness in this trial. There's no foundation.

# 70 MR. BAKER:

Your Honor, in that regard, all of this testimony is relative to what Roger Martz did. This witness didn't do any experiments, didn't do anything except look at what Roger Martz said, and if you give me a minute, I think I'll go over and find that letter. Phil, look up Roger Martz's testimony and find that letter because I think this gentleman has already read it.

# 71 Q:

(BY MR. BAKER) If you read that testimony there's a lot of it. I can understand, Dr. Lee, how you'd forget reviewing or reading that in the testimony because there was a lot of testimony from Roger Martz.

# 72 THE COURT:

Okay. Find it.

MR. P. BAKER: Can I see it?

# 73 MR. BAKER:

Yeah. (Mr. Baker handed a document to Mr. P. Baker.)

MR. P. BAKER: It's Criminal Defense Exhibit 1264, on July 25, page 38649.

# 74 THE COURT:

I don't think that's what you're supposed to be finding.

MR. P. BAKER: Okay.

# 75 Q:

(BY MR. BAKER) Now, Mr. Martz -- let me show you 36648. Mr. Martz was given a two-page letter, correct, that was Exhibit 1263, okay, and he reviewed 1263, correct?

# 76 A:

That's what it says there.

# 77 Q:

All right.

# 78 THE COURT:

Okay. That's foundation, go ahead.

MR. P. BAKER: Well, I'll mark this next in order.

# 79 THE CLERK:

I don't think it is -- I think it's already been marked 1223. (The instrument herein referred to as a two-page letter dated 2/16/95 was marked for identification as Defendants' Exhibit No. 1223.)

# 80 Q:

(BY MR. BAKER) Would you read what the request was to Roger Martz as an FBI agent, and what his goal was. (Mr. Baker read from a letter, mission statement, from Rockne Harmon to Roger Martz.) We would like you to test these items for the presence/absence of EDTA in order to refute the possibility that the stain on the sock could have come from Nicole's reference sample. 59 or 72 similarly, we'd like you to test Item 117 to refute the possibility that it could have come from Simpson's reference sample.

# 81 Q:

So his mission statement, that is the mission statement of Roger Martz, was to refute that there was any EDTA in either the reference -- in the sample from the back gate or the socks; you would agree with that?

# 82 MR. LAMBERT:

Argumentative, misstates the evidence as to what the letter says.

# 83 THE COURT:

The argument seems to be over the word "refute." I'll sustain it. The letter speaks for itself. You can argue over that.

# 84 Q:

(BY MR. BAKER) The letter says he was to refute the allegation that there was any blood from Mr. Simpson's or Nicole Brown Simpson's reference sample, does it not, sir?

# 85 A:

I read it.

# 86 Q:

Okay. Roger Martz was in the FBI lab for 19 years, wasn't he, when he ran these tests?

# 87 A:

I don't remember. I mean he could have been. I have no idea how long he was in the lab.

# 88 Q:

Page 386, 21, you don't dispute that he was in the lab --

# 89 A:

No.

# 90 Q:

-- for 19 years?

# 91 A:

I have no knowledge of that.

# 92 Q:

You don't dispute if he had the goal to refute there was any EDTA, that he would run his lab as best he could in an uncontaminated fashion to get the best results possible; you would agree with that?

# 93 A:

Yes.

# 94 Q:

So your theory here is that it was contaminated, he didn't do the test correctly, and the elements that you see are not because they were actually EDTA from a purple top test tube, but they were EDTA that was left somehow in the machine and occurred only on the samples from the socks and the back gate, right?

Temperature

tense

Key Quotes (4)

Terry Lee

I was told that he was not available for me to contact.

Lee says he was told Martz was unavailable and describes it as his impression that the FBI wanted to stay out of the civil matter.

Rockne Harmon (letter)

We would like you to test these items for the presence/absence of EDTA in order to refute the possibility that the stain on the sock could have come from Nicole's reference sample.

The Harmon-to-Martz letter reveals the FBI test was framed as adversarial — to 'refute' defense claims — undermining the appearance of neutral scientific inquiry.

Terry Lee

If you're saying that it would be impossible for him to have found EDTA levels at those levels in his own blood, that is true, but he didn't know that at the time.

Lee agrees that the reported EDTA levels in Martz's own blood would have been impossible, while adding that Martz did not know that at the time.

Baker

I get these notes -- I have I got an I. that's about ground level, so I have to rephrase and think back of what I was asking you.

Baker's self-deprecating aside while rephrasing a question about EDTA.

Evidence (3)

Defendants' Exhibit 1223

Two-page letter dated 2/16/95 from Rockne Harmon to Roger Martz, directing Martz to test sock and back-gate samples for EDTA 'to refute' the defense planting theory

Introduced and read into record by Baker

Criminal Defense Exhibit 1263

Same Harmon letter as reviewed by Martz during criminal trial testimony

Referenced to establish foundation for Exhibit 1223

Criminal Defense Exhibit 1264

Roger Martz criminal trial testimony transcript (July 25, page 38649)

Referenced to lay foundation; court indicated it was not the document Baker needed

Notable Exchanges (3)

Baker•Lambert•Court

Extended dispute over whether Baker could use the Harmon-to-Martz letter. Lambert objected to lack of foundation since Martz was not a civil trial witness. Baker threatened to call Rockne Harmon if necessary, then found the criminal trial exhibit reference to satisfy the court.

procedural friction

Baker•Terry Lee

Baker presses Lee about Martz's own-blood results. Lee agrees the reported EDTA levels would have been impossible, while adding that Martz did not know that at the time.

strategic

Baker•Terry Lee

Baker questions Lee about efforts to contact Martz. Lee says Lambert told him Martz was unavailable, describes it as his impression that the FBI wanted to stay out of the civil matter, and says he would love to talk to Martz.

revealing

Light Moments (1)

Baker

Baker loses his train of thought mid-question and jokes about having an IQ 'about ground level' before rephrasing.

Credibility Attacks (3)

⚔ Roger Martz (FBI analyst, not present)

Mission bias / documentary evidence

Baker uses the letter's “in order to refute” language to challenge Martz's assignment; the witness disputes Baker's characterization of “refute,” and the court rules that the letter speaks for itself.

⚔ Roger Martz

Scientific invalidity of control experiment

Lee acknowledges that the EDTA levels Martz reported in his own blood would have been impossible, while noting that Martz did not know that at the time.

⚔ Witness (Terry Lee)

Lack of independent verification / access denial

Baker highlights that Lee did not contact Martz and did not know Martz's procedures; Lee says he was told Martz was unavailable, would love to talk to him, and that the data supported his conclusion.

Objections

7 objections (3 sustained, 2 overruled)

Proceeding 8822 • 94 lines • Defense witness

Civil Trial

Department 103