Yes. I have a Bachelor of Science degree, and in biology, I have a Master's of Science degree in genetic counseling, a Master's of Science in biochemical genetics, and my Ph.D. is in molecular genetics.
Since obtaining my Ph.D., I was first a post-doctoral fellow at the University of Wisconsin in Madison where I did a fellowship in the department of medical genetics there. I then went from there to the University of North Carolina where I did a fellowship in the department of pathology there.
I'm currently employed at the Oregon Health Sciences University which is the medical school in Oregon. And I have two appointments at the university; one is an academic appointment as an assistant professor in the department of molecular and medical genetics, and then a hospital-based appointment which is as the director of the DNA diagnostic lab.
I am. I have a medical board certification as a clinical molecular geneticist from the American Board of Medical Genetics, which is the accrediting board of the American College of American Genetics which is the accrediting board for all people with genetics training that do anything to do with patient care or management.
Well, after one has a doctoral degree, either an M.D. or Ph.D. degree, one would then do post-doctoral residency, if you are an M.D., and after that then one would do a fellowship, and that fellowship is usually two to three years.
And do you know approximately how many people in the country are certified by the American Board of Medical Genetics?
Well, in clinical molecular genetics, it was about 120 until recently, and I think approximately 80 more were added to that list, so there's about 200 people.
I am. One of my responsibilities through the -- my professional college American College of American Genetics is on what's called a proficiency testing committee. And essentially, what this committee does is we are the people, the small group of people, there are approximately six of us in this group, and we're the ones to put together the proficiency testing materials. In other words, write the exam questions, decide what labs need, what types of specimens labs need to test to demonstrate the fact that they are proficient. Then we also score their performance and write critiques and so on their performance.
In addition to all this work that you do, are you also involved in the forensic uses of DNA in criminal cases?
Well, in a couple different capacities. I have been involved -- well, first of all, in the state of Oregon we have a panel of DNA experts that attorneys can turn to that have criminal cases that involve DNA, and can turn to this group for expert advice on the reliability of DNA data, the strength, weaknesses, as to that data, and in particular cases, essentially serve in an educational role, and I do a number of cases within the state in that capacity. In addition, my lab does do some forensic DNA testing, but that type of testing is very limited in scope, and by no means do I want to leave you with the impression that we have a forensic DNA lab. I consider it a medical diagnostic lab, but the state of Oregon, whatever, whatever. A young individual -- these are statutory rape cases where a victim is 12, 13 years old and is pregnant, and where the pregnancy -- I can help the state determine who fathered that child, and then the state would use that evidence to press charges against that individual. My lab does those cases and these are criminal cases.
No, I've, I guess, been involved in, I think it's about 18 cases now, and it's been about an even split between number of cases for the prosecution and number for the defense.
And since that time, has he employed you to act as an expert in a criminal case?
MR. P. BAKER: Objection, irrelevant.
Yes. Subsequent to the criminal case -- the criminal proceedings in the Simpson case, I was approached by Mr. Sheck and -- and did work with him on a case.
(BY MR. LAMBERT) Was that -- was that a case in which Mr. Sheck was representing --
MR. P. BAKER: Same objection.
(BY MR. LAMBERT) Okay. Was that a case in which Mr. Sheck asked you to do some -- review some DNA evidence in the case?
(BY MR. LAMBERT) That was a case that Mr. Sheck asked you to work on since the criminal trial?
I'm not -- I said don't go into detail, Counsel. You can -- you want to know if he was successful or not, you have him answer that. You don't need the details.
Now, Dr. Gerdes, the defense expert, testified that he did not even use the DQ Alpha or D1S80 test at issue in this case.
Excuse me. Is there some question on that issue?
MR. P. BAKER: It's argumentative, there's no foundation.
If it's argumentative, it's overruled. If you're saying that didn't occur or there's no foundation for that, then we'll hear you at bench.
MR. P. BAKER: Okay. (The following proceedings were held at the bench with the reporter.)
MR. P. BAKER: Your Honor, I just -- I'm objecting on foundational grounds.
Trying to see what the question is.
MR. P. BAKER: I think I have it -- I just lost it.
My question is has he done DQ Alpha and D1S80 tests?
MR. P. BAKER: You were asking about Dr. Gerdes.
He read Dr. Gerdes's testimony. That's what Dr. Gerdes said.
MR. P. BAKER: I thought you asked whether Dr. Gerdes did it.
That's what Dr. Gerdes said, he doesn't do it.
MR. P. BAKER: I object on foundation, argumentative. He should be eliciting his testimony, his opinions.
The issue of DQ Alpha D1S80. Dr. Gerdes doesn't do it. He does. This is rebuttal. His opinion has more weight than Gerdes' 'cause he does the test and Gerdes doesn't.
MR. P. BAKER: He elicited his testimony from Gerdes.
That kind of question is argumentative. You want to ask this witness if he does DQ Alpha tests and what the relevance is and how it's important or not important, go ahead.
You can argue it to the jury With regards to the fact that Dr. Gerdes doesn't do it, that's his objection, I'll sustain it.
MR. LAMBERT: It's argumentative, not foundation. (The following proceedings were held in open court in the presence of the jury.)
(BY MR. LAMBERT) Dr. Popovich, one of the tests at issue in this case is the DQ Alpha test. Is that a test you do in your own lab?
And the D1S80 test is another test that's at issue in this case. Do you do that in your own lab?
A final test at issue in this case is the RFLP test. Do you yourself have experience with the RFLP test?
Now, Dr. Gerdes compared the issues faced by a DNA lab doing forensic testing to one doing medical testing. Are you familiar with his testimony in that regard?
MR. P. BAKER: Same objection, argumentative.
Well, I disagree because I think he is telling one side of a complex story and I think that the issues that we have to deal with in a medical diagnostic lab are absolutely synonymous with what a forensic lab has to deal with and, sure, we deal with pristine samples where you know which is -- Dr. Gerdes has pointed out very few of the problems that one is encountered with in forensic testing. But we also deal with trace evidence, trace samples where there is trace amounts of DNA, all the time. And where the issues that arise are absolutely no different than what one is encountered with in a forensic setting.
So in your opinion, is DNA equally suitable to use in the forensic field as it is in the medical field?
Well, I've reviewed a lot of materials. I've reviewed -- I've personally visited each of the labs on more than one occasion. I've talked to the analysts that were responsible for performing the actual testing. I've reviewed their bench notes. I reviewed all the original photographs, all the original -- all the original documentation for each -- each and every piece of evidence in the case. In most cases I've reviewed the trial transcripts from both the criminal and the civil case of what was said. I've looked at the conclusions the people had reached on the basis of the results that they had obtained. I've looked at the physical layout of the lab. I've looked at personnel qualifications. I mean, I was really brought in to look at everything that happened in the case and give a -- a non-biased opinion as to if that was credible evidence.
And was one of the things that you were looking for when you did this review, in order to determine whether there was any contamination that affected any of the evidence samples?
Yes, that was definitely -- any time one is looking at DNA evidence, one has to take into account the possibility of contamination.
And is contamination something that DNA scientists are all aware of and take steps to prevent?
Is the risk of contamination the same with the PCR-base test as it is with the RFLP-base test?
The risk of contamination in either is real, but for PCR-base testing, it is a much increased test, and one has to be extremely careful.
Have you reviewed Colin Yamauchi's testimony concerning his sampling of evidence items on June 14 and June 15, 1994?
Yes, I have reviewed his testimony and I've personally questioned Colin in great detail about -- about what he had done on both of those days.
We're going to put up on the television screen -- what number is this?
MR. P. BAKER: 2265.
2265. It's a little bit hard to read. If you'd like your own copy, it might be easier to read.
(BY MR. LAMBERT) This is a document which has previously been used with Dr. Gerdes's testimony, lists the items of evidence tested by Colin Yamauchi on 6/14 and 6/15. Are you familiar with those items that he tested, sir?
I did. I visited the facilities, looked at the physical layout, did everything that I did in all the other labs, and that included going to Piper Tech, going to Parker Center, and so on.
Do you have an opinion as to whether Colin Yamauchi's sampling of the evidence on June 14 and June 15 caused any contamination of that evidence?
My opinion is that there is absolutely no evidence of any contamination whatsoever.
KEY QUOTEIn that connection, could you explain to the jury what these controls are that are listed in Colin Yamauchi's samples that he tested that day?
Yes, I can. There are really three places where contamination can be introduced. And that would be where the evidence is actually gathered that's at the crime scene. Then it would be where the evidence -- when the evidence comes back to the lab, it could be a laboratory within the laboratory. And then it could ultimately be at the last step, which is essentially where one is doing the procedure that gives you the result and led to conclusions being able to be reached on the basis of this. So the first one -- the 7 substrate controls speak to that very first point, at the actual crime scene -- at the actual crime scene. And what one is doing is looking at samples that, in fact, are sitting next to the actual samples that were tested. And if there is contamination that's taken place at the crime scene, one is going to see some of that contamination in those -- those controls. And in Colin's work, none of those controls tested positively, so that says something to me, even not being a forensic scientist and not being involved in crime-scene investigation. It speaks to the molecular genetic side of the fact that there was not enough DNA, if there was any, to spread around there to cause any type of problems in any subsequent results. The next place would be when one is actually working with the evidence back in the lab, and in that regard, the one positive control is actually a stained piece of fabric that Colin ran in parallel. What that says is that when he was actually doing his -- his extractions of the DNA from the -- from the samples that were tested, from the -- from the samples listed above, that none of those, in fact, on the basis of this one control, suggests that there was no contamination that took place at that stage. The reagent blank cloth speaks to that same thing -- I mean -- I'm sorry, the reagent blank cloth was really what I was speaking to, and the positive control essentially says that the extraction went as planned, that he got the result that he should have obtained from that particular control. The amplification blank speaks to that last stage, the actual testing phase where one is actually doing what you've heard of, the PCR, and one is actually looking at the methodologies that generate this DNA result. And in that case, that amplification blank was negative. It's exactly what it should be if one is not introducing contamination in the reagent. The last one is the amplification positive, which is a quality control that's internal to this kit and really speaks to the kit functioning as -- as it was designed to perform. So many controls, every controlling exactly the type -- type of information that one would want to see if one was -- if, in fact, there was no contamination and if, in fact, the conclusions that were reached on these -- on these particular items of evidence were because of DNA that was picked up and not because of some DNA that was introduced at a subsequent stage.
Why don't you push this up to the top then see -- this, Steve, up to the bottom (indicating to Elmo).
(BY MR. LAMBERT) These two days he sampled 18 evidence items, 3 exemplars and 21 controls. Half of the things he sampled that day or those two days were controls, and did you look at all of those test results?
Well, the controls showed that any one of those three stages of -- of either collection or examination of the evidence or actually doing the process of the PCR, that there was no -- there was no contamination whatsoever there that was detectable.
(BY MR. LAMBERT) This exhibit -- particular exhibit is just talking about 6/14, this one day, and it lists the number of swatches that were in these various evidence items and the number of controls that were sampled by Mr. Yamauchi on that one day.
(BY MR. LAMBERT) So 32 evidence swatches and 7 controls that were handled by Colin that one day; is that your understanding?
And these controls that were handled, were those controls all negative for any contamination?
And in order for this evidence to have been contaminated by the handling by Colin Yamauchi, would all 32 of those evidence swatches have to have been uniformly contaminated?
In order for the evidence to be contaminated in this case, the evidence handled on June 14, would all of those 32 swatches, each one of them, had to have been contaminated?
Now, Dr. Gerdes implied in his testimony that Colin Yamauchi sampled too many evidence items at once on these two days.
MR. P. BAKER: Objection, Your Honor, no foundation.
(BY MR. LAMBERT) Dr. Gerdes stated -- said that Colin Yamauchi examined too many evidence items on these two days. Do you agree with that opinion?
Yes. It would be -- not at all. I mean it's a significant number that were handled on that day, but then again, Colin did indicate in his testimony that he worked overtime in order to handle this number of samples. And in my own lab, I mean it would be a very similar scenario where, if one had this number of samples and needed to process those, one could, yes.
Dr. Gerdes stated in his testimony that Colin Yamauchi's handling of the reference vial containing Mr. Simpson's blood might have caused some contamination. How do you yourself handle reference vials?
Well, when a reference tube of blood comes in, one would handle it essentially very similar to what Colin described. One places something over it. The concern is two-fold. One is your own person being contaminated by the materials -- the blood materials that are in there. And the second is the laboratory environment. So, in fact, it's very synonymous in many ways to opening a bottle of wine. I mean if you were to take a bottle of wine and pull the cork out a good bit of the way, and it was a red bottle of wine, what you want to do is prevent any of that wine from sliding down the side of the bottle or getting on you, you would place a napkin over it and you would pull the cork out the last bit of the way, and inevitably what would end up happening is some of the blood from that -- from that bottle or from the -- from the actual vial, or in the case of the wine, from the cork would actually get onto that napkin, and one would see that. And so -- and by holding that napkin, or in this case chemwipes, which are just green kleenexes, over that, and pulling out that cork, one would keep that blood on those chemwipes and basically keep it from getting spread around, so it's exactly what we would do in opening those.
So is the method that Colin Yamauchi described that he used to open the vial as part of the sampling process, a customary way of handling?
Now, Dr. Gerdes suggested that perhaps some contamination could have taken place because of maybe Colin Yamauchi got some blood on a pen. Do you remember him saying that in his testimony?
Not at all. It's not at all consistent with these -- these items of evidence and the results that were obtained.
Dr. Gerdes suggested that Colin Yamauchi may have reintroduced contamination when he brought evidence samples back to Piper Tech after he had done the PCR amplification. Do you remember that portion of his testimony?
Now, the test results that Colin Yamauchi obtained on June the 14th and June the 15th, were those test results consistent with test results later performed by DOJ or Cellmark Diagnostics on the same evidence items?
Yes, they were. All the results that were obtained on those items of evidence were essentially concorded between all three labs. They all obtained the same result.
KEY QUOTEIf any contamination had occurred, what does the fact that all three labs got the same results tell us about that contamination?
And is there any evidence at all that there was any contamination before he began his process of testing it?
There were -- in the case, how many different evidence items were collected and tested? Do you have a rough number in mind?
I don't actually know that number. I mean, I know that, for instance, that in addition to what we've talked about at LAPD, that Cellmark looked at a approximately 25 samples -- items of evidence that were tested; and DOJ, something in the neighborhood of 100 to 110.
Let's start with the Bundy board. (Board entitled Results of DNA Analysis, Bundy Crime Scene, is Exhibit 291 displayed.)
(BY MR. LAMBERT) Now, we've put up Exhibit Number 291, which is the board showing the results of the DNA analysis at the Bundy crime scene. Did you review all of those tests for all those evidence items?
Incidentally, do you have any opinion as to the quality of the testing work done by Gary Sims in the California Department of Justice?
MR. P. BAKER: Objection. Speculation and foundation.
Do you have any opinion about the quality of the testing done in this case by Robin Cotton, Cellmark Diagnostics?
Again, I think Cellmark is a very reputable company, and the work that was done in this case was excellent.
Finally, do you have any opinion about the quality of work done in this case by Colin Yamauchi, by SID?
Yes. I think the work that Colin did is reliable. I have -- see no reason not to trust any of it; I think it's very good data.
When you looked at all the evidence samples reflected on this board from the crime scene at Bundy, did you see any evidence at all of any contamination in any of these evidence samples?
Now, in regard to item number 52, Dr. Gerdes testified that when he looked at the DQ Alpha strips for the Department of Justice, he detected what he said could be contamination in those strips. Do you remember that testimony?
Well, the DOJ DQ Alpha strip, as I recall, there is a -- a -- a very faint 1.3 that's there, also. And in that particular case, there are a number of explanations for that; and -- and the most likely explanation for that is something that would be called cross-contamination. That's in a sample, where one has quite a bit of DNA, and it -- in a way, it overwhelms the system a bit, and is showing you something that's very closely related, but is not necessarily there. And because of the amount of DNA that was in that sample, I agree with the testimony that was given by, for instance, Gary Sims in this case, that -- as to the explanation for that. It's a very logical explanation; and it a would be my -- it would be the explanation that I would offer as the most logical.
I do. I think that Dr. Gerdes is looking very narrowly at one side of the data in this particular specimen, and isn't looking at the whole case -- at all the evidence related to that particular specimen.
KEY QUOTENow, Cellmark obtained an RFLP result on that evidence item 52. Did you see any evidence at all of contamination in that RFLP test result?
It's very significant in terms of identifying Mr. Simpson as the person who left that blood at crime scene?
MR. P. BAKER: Objection. Argumentative.
Well, I think it's very significant in the sense that the profile that was generated by each and every one of those five probes matches that of Mr. Simpson.
In your opinion, are the DNA test results for this evidence found at the Bundy crime scene, accurate test results?
Excuse me. In your opinion, can this jury consider those test results to be unaffected by any contamination?
MR. P. BAKER: Argumentative.
Next board. (Board displayed entitled Results of DNA Analysis, Bronco Automobile.)
We now have up before you, Dr. Popovich, the results of the DNA analysis of the Bronco automobile. Have you reviewed all of the test results for the evidence collected from that Bronco?
In regard to the Department of Justice DQ Alpha result on item 31, there, Dr. Gerdes testified that Sims misread those results. Did you review his testimony in that regard?
Well, I think that what Gary Sims did, is -- is look at exactly what was there, and -- and, in fact, called it exactly like he saw it. And we have supporting evidence of his call by D1S80 result, the 24, 25 in that regard done by Renee Montgomery. Not only do we have concordant data by SID and the DOJ Lab for item 331, but we also have data that substantiates that, which is D1S80 data that was done by Renee Montgomery at DOJ.
And Mr. Sims was later able to obtain an RFLP result in items 303, 304, and 305. Does that tend to validate his PCR results on item 31?
Do you have any doubt at all whether Mr. Sims is correct in calling item 31 to be an item that could contain the blood of both Mr. Simpson and Mr. Goldman?
In your opinion, are these DNA results, or the evidence found in the Bronco automobile, accurate?
In your opinion, can the jury consider those results to be unaffected by any contamination?
Rockingham --
MR. P. BAKER: Your Honor, can I approach real quickly while Mr. Foster is getting the boards? (The following proceedings were held at the bench, with the reporter.)
MR. P. BAKER: Your Honor, I'd like to put on my objection to any further testimony by this witness. I'd like to put an objection on the record to any further testimony by this witness. He's not rebuttal; he's a summary witness who's been brought in as a clean -- to try to clean up other witnesses. It's improper rebuttal testimony. I'd like to object to any further --
He's talking about the opinions of their own witnesses and their own people as to whether it's reliable or unreliable. That's a conclusion for the jury to make. This is improper, Your Honor, and we object to it.
Dr. Gerdes claimed that the test results in this case were affected by contamination. This witness is saying they're not. They're all reliable. That's what the opinion is all about.
That isn't what he's asking him. He is asking him summary questions. The jury is entitled to believe this evidence, whether or not he's entitled to render his opinion pursuant to your ruling. That -- whether or not he believes the evidence is contaminated, in my opinion, is totally argumentative to -- asking these questions, to kind of summarize his views for the jury.
It's proper rebuttal. It's argumentative. I'll sustain it on the basis it's argumentative.
One other question. When he's asking these questions, he -- it seems to me, it's argumentative to say, do you think these opinions given are reliable. Those are argumentative questions. I mean, he's arguing whether or not those opinions are reliable, and he ought not be able to do that.
THE COURT: Overruled. (The following proceedings were held in open court, in the presence of the jury.)
THE COURT: Yes. Ten minutes, ladies and gentlemen. Don't talk about the case. (Recess.) (Jurors resume their respective seats.) DIRECT EXAMINATION (continued) BY MR. LAMBERT:
Dr. Popovich, we now have up the results of the DNA Rockingham residence. Did you review all the tests done from the evidence collected at the Rockingham residence?
My opinion is that there is absolutely no evidence of any contamination whatsoever.
I think that's absolutely ridiculous.
I think that Dr. Gerdes is looking very narrowly at one side of the data in this particular specimen, and isn't looking at the whole case -- at all the evidence related to that particular specimen.
All the results that were obtained on those items of evidence were essentially concorded between all three labs. They all obtained the same result.
it's very synonymous in many ways to opening a bottle of wine