Good afternoon, your Honor. This particular motion is before the Court as a result of materials that have been provided to the People by the Defense with regard to Dr. Gerdes specifically. What those materials reveal--and I have attached to our evidence code section 352 motion copies of the materials that have been provided to the People that I'll address briefly in just a few moments. What this proposed testimony by Dr. Gerdes specifically relates to and that which we are asking this Court to preclude in particular is an examination by Dr. Gerdes of PCR, DQ-Alpha typing conducted in the laboratory at the Los Angeles Police Department. And that review I think it is clear was specifically undertaken by Dr. Gerdes as part of a search for contamination, a search for contamination, the DNA laboratory at the Los Angeles Police Department, and I think it's clear that that was his goal in undertaking this review. It is clear from the materials that we have been provided that Dr. Gerdes has looked at over 200 DQ-Alpha--I'm sorry--DQ-Alpha hybridization records and that those records specifically cover a time period between May of 1993 through August of 1994 or a period of some 15 or 16 months.
In any event, by Dr. Gerdes' own materials, that review includes over 1,000 separate typing strips. In other words, one sample being subjected to DQ-Alpha typing constituting a single strip and this review by Dr. Gerdes includes more than 1,000 strips. And it is clear the goal of that review which Dr. Gerdes states in summary form in the materials provided to the material supports what Dr. Gerdes refers to as a chronic and substantial contamination problem of their DQ-Alpha strips by the Los Angeles Police Department. Now, briefly, I'd like to review the materials that in fact the People have been provided and which are attached as exhibits 1 through 4 to our particular motion. What we were provided on June 16th of this year were two items; one, what is entitled an analysis of LAPD validation data, observed contamination and its relevance to the Simpson case, which was a several-page report type document, and then in addition to that, we were provided a several page what I will refer to as chart which was entitled, "LAPD DQ-Alpha contamination incidents." In those two items, Dr. Gerdes' describes reviewing 1,000--I'm sorry--1,069 evidence strips. The majority of those strips is clear from a review of that--
He uses the term apparently a little bit vaguely. He uses the term "Evidence strips," but it is clear that the majority of those are not casework. So I think--and I've just reiterated or actually repeated the term Dr. Gerdes has used. But I'll get into that in a moment in reality what those items contain. I think it's safe to say that when he says he has reviewed this thousand plus strips, that includes strips that are not only casework evidence as we'll use the term, but also include known samples, proficiency tests as well as in-laboratory validation. So I don't think his usage of the term in this instance "Evidence strips" means casework, let alone casework specific to the present case. And as I mentioned, the majority of those strips that he reviewed are not casework. They are in fact training strips undertaken by laboratory analysts familiarizing themselves with this technology. They include in-laboratory validation typing strips and they include proficiency strips as well. The actual evidence casework, not specific to this case, but other cases constitutes a limited number of those 1,000 plus strips.
I have not actually calculated the exact number that are evidence strips, that is actually casework samples from other cases. If I had to estimate, I would say it's on the order of 10 percent. Perhaps it's more. I don't think it's less. That's a very rough estimate, your Honor. His conclusion from those initial documents provided to the People in June are that contamination of major proportions is a part of the Los Angeles Police Department DNA laboratory. Now, 10 days ago, actually 11 days ago at this point, the People were provided with a new chart by Dr. Gerdes in which Dr. Gerdes changed the name of contamination on the chart to, quote, "Unexpected alleles." And in that material that we were provided, it was accompanied by a letter to Mr. Scheck by Dr. Gerdes stating, quote, "Not all entries can be strictly confirmed to be contamination," unquote. And, therefore, he renamed the chart.
And in fact, in that material provided to the People by way of the same letter to Mr. Scheck, Dr. Gerdes concedes that he made errors in his earlier chart and made changes accordingly. Now, getting back to the review that occurred by Dr. Gerdes of this 1,000 plus samples, Dr. Gerdes states cross-contamination can produce typing errors. That's one of the statements that he utilizes as a result of his review contained in his analysis as well as his chart form summary. And in fact, Dr. Gerdes alleges that five mistyping errors were committed by the Los Angeles Police Department. I think it's important at this point, and I'd like to discuss two of them because they are closely related to one another and I think the Court has to realize the type of testimony that this witness apparently will present in this case and we know from previous testimony is presented in other cases. This first quote, mistyping error, by Dr. Gerdes involved a known blood sample, a sample run by an analyst not related to this case named Erin Reilly, and in the course of typing that known blood sample--again, this particular typing strip had no relation to this case whatsoever. That in typing that known blood sample, two alleles were noted by Erin Reilly and a type was written in her notes from the appearance of those two alleles, which were a 1.3 and a 4. The actual type of that sample was a 1.2, 4 not a 1.3, 4. The Court will I'm sure recall that there's no DQ-Alpha probe specific to the 1.2 allele, and there's some interpretation that goes into an analyst concluding the presence of the 1.2 allele. The negative control on that run failed. It demonstrated activity signalling to Erin Reilly that those results could not be called. And as a result of that, Erin Reilly reran that sample as well as the other samples that were involved in the same set of typing strips. That was counted by Dr. Gerdes as a mistyping or an error. Erin Reilly reran that sample a matter of a few days later, detected the same two alleles that she had detected before, which were a 1.3 allele and a 4 allele. Again, the sample was in reality a 1.2, 4. The negative control again showed activity signalling to Erin Reilly that those results could not be called. That constituted according to Dr.--
All right. Let me see if I'm understanding where you're going, Mr. Clarke. You indicated on the first sample done by Erin Reilly that the negative control failed. Does that mean that it showed activity or that the control mechanism didn't work?
That was a poor usage of terms on my part. The control revealed the activity. So the control served its purpose.
In the rerun, the same thing occurred with the control. And, therefore, the results were not called. That constituted according to Dr. Gerdes in his report a second mistyping by the Los Angeles Police Department. Now, the postscript to this is, about two days later, that sample again was rerun because of the problems with the previous typings. No activity showed in any of the negative controls, and the sample was appropriately called and correctly called from the typing as a 1.2, 4. That rerunning, that is that third typing of the same sample is not even mentioned in Dr. Gerdes' material, and yet those are two mistyping errors according to his testimony.
That is obviously wrong and misleading to refer to those as typing errors in view of the fact that they were never culled, they were never reported as results because the controls served the exact function they were designed to. The other three errors I'm not going to get into at this point other than to say that two of them involve the same sexual assault epithelial cell sperm fraction situation that this Court heard some testimony about earlier, wherein in typical sexual assaults, there are mixtures. And, again, I won't get into that other than to state that what Dr. Gerdes refers to as a mistyping or an error was called absolutely correct correctly from not only the appearance of the alleles in those individual typing strips, but the very nature of sexual assault mixed samples to begin with. And then the last one refers to a hair shaft, not a hair root. Now, getting back into what takes up more, in fact far more of Dr. Gerdes' review involves the appearance of 1.1 and 1.3 reactions that are weaker reactions in samples that in fact show the 1 allele. Now, the Court has heard testimony about cross-hybridization. And because the sequences of the various 1 subtypes are very close to one another, that in fact there can be weaker appearances or weaker reactions from the 1.1 allele and from the 1.3 allele as a result of this cross-hybridization. In his chart, Dr. Gerdes, first of all, has referred to the fact that these appearances may be--and I'm referring to the 1.1 allele at the moment--are result of what's called DX activity. And there's been testimony about DX, a closely related gene to DQ-Alpha. And because of similarity in sequence, the 1.1 allele may appear. And in fact, the appearance of that allele is recognized not only in the user guide, that is the DQ-Alpha user guide put out by Roche, it's recognized in the scientific literature and in fact has already been the subject of testimony in this case. That constitutes approximately 40 of the 100--approximately 180 references in Dr. Gerdes' charts. These 180 references that Dr. Gerdes makes to originally contamination, but now what he refers to is unexpected alleles. But I think that's simply a euphemism for what the Defense seeks to present to this jury, which is contamination, not unexpected alleles. The same applies to the 1.3 allele. Approximately 50 of Dr. Gerdes' 180 references include reactions in the 1.3 allele that are weaker than reactions that are obtained from the other alleles present in the sample itself. And again, testimony in this case has already described this cross-hybridization. The user guide specifically addresses it. Trained analysts just like the 1.1 cross-hybridization situation are fully aware of it, and lastly, the scientific literature demonstrates the same thing. In this case, from Dr. Gerdes' chart itself, there's no instance of alleged contamination by Dr. Gerdes for the periods between June 10th, 1994 and June 27th, 1994. That is a critical gap in terms of his chart and what he has described as these instances of contamination. That time period includes the specific DQ-Alpha runs in this case, which were on June 14th and June 15th, 1994. This offer to the Court to prove Dr. Gerdes' search, to prove his search for contamination is frankly no different than that which occurs in driving under the influence cases when a Defendant seeks records about the breathalizer or the intoxilizer or the gas chromatograph; how is the machine operated during the relevant time period? And in fact, they're frequently provided records. And in this case, it's the same as the records demonstrating the machine was operating perfectly. How relevant is it that the machine wasn't operating perfectly a month earlier, six months earlier or a year earlier? And I don't think frankly there's any difference in this particular case.
Having been the supervising Judge of the traffic building earlier in my career and having tried 37 driving under the influence trials in a row, I've heard that argument.
I've cited to the Court the question of eyewitness identification testimony and cited to this Court People versus McDonald as well as United States versus Downing. And I think the relevant portion of that and why I think that's applicable is because those cases make clear that there has to be some relevance of that material. That is, the offered eyewitness identification expert type testimony to the facts of an individual case or what's referred to as fit, due to the facts of an individual case, fit, what's described to be offered by the Defense. And the question in this case is, what is the accuracy and reliability of the results in this particular case. That's what this jury has to decide, what this Defendant is trying to show. In other words, what they're attempting to use as a vehicle to show the unreliability and inaccuracy of these results is basically, there's something fishy. There's no custom or practice that the Defense can define or identify in this particular case that's causing something to go wrong. There is this amorphus fishy atmosphere in which, quote, contamination of epic proportions calls into question the accuracy of the results in this particular case. What the Defense is attempting to parlay is this review by Dr. Gerdes and proposed testimony into juror speculation about the accuracy of the results in this case based on, again, this nebulous cloud or what's referred to by the Defense as alleged contamination. Even as the Defense responds to the motion brought by the People in this case, they state these things, contamination that is, could have produced falsely incriminating results. And in fact, they even try to divorce both Cellmark and the Department of Justice by laying the blame at the footsteps of the Los Angeles Police Department. Well, the answer is, that is not a proper vehicle to attack this particular evidence. The proper vehicle is to examine the evidence results in this case, the control samples in this case and is there something wrong with what occurred in that testing. And in fact, that's the traditional means by which it's done in any other case that I'm personally familiar with.
Well, the problem in this case is, the evidence samples, the actual evidence testing in the controls worked. And in fact, they worked appropriately in every instance. The last legal means to attack the accuracy of results in an individual case obviously is by retesting. Section 352 I would suggest to the Court is specifically designed to avoid this type of offer. And the Defense has in terms of their response specifically directed their comments towards the allegation that this would take undue time. Well, time consumption is a factor. But I'm going to suggest to the Court the other two factors in 352 are far more important in this instance. And that is, misleading the jury in determining the facts of this case and confusing the jury in their determination of the facts in this case, and in particular, with regard to the accuracy of the results obtained in this particular case. Contamination in the Los Angeles Police Department is clearly revealed in typing strips wherein extraneous or additional alleles are present. It's obvious to an analyst. It's obvious to a layperson.
And in the course of Dr. Gerdes' testimony, even without these alleged instances of contamination, that might become relevant, in which case the jury could see an example, what's contamination look like. Well, it's like a red light and a siren going off, it's so abundantly clear. And when it goes off, as has happened at the Los Angeles Police Department in two instances, the laboratory acted according to accepted protocol, acted according to appropriate science, and in fact went on with its testing under appropriate circumstances, which was to conduct the testing according to scientific protocol as well as the protocol in place within the laboratory itself. The answer is, contamination is not present in this case. I anticipate Dr. Gerdes will concede that the number of controls in this case outweighs any case he has previously seen in the number of cases that he has reviewed as a Defense consultant and/or expert. This Court already knows the use of reagent controls, amplification controls, positive controls as well as, remarkably enough, unstained substrate controls with regard to almost all evidence samples in this case.
If this Defendant is allowed to put on evidence, whether it's by simple charts, summaries and tabulations of these alleged instances of contamination, then what will happen is, the jury will be misled. They will be confused because then they'll have to hear testimony about a number of different areas. They'll have to hear testimony about Dr. Gerdes' own errors in interpreting the presence of dots and what particular types are present as a result of analyzing and interpreting the presence of various alleles.
It's our position that from reading particular probe reactions, that Dr. Gerdes miscalls more than one sample. In other words, he alleges a particular type is present when it is not by proper interpretation. Now, I'm not referring to whether or not there's a weak reaction; in other words, whether you can see a reaction. But from obvious probe reactions, whether or not he can call the type correctly. In other words, the interpretational aspect, not whether or not a signal is sufficiently strong to be interpretable, if I'm made that distinction clear.
It would require evidence to show, that is to demonstrate to a jury about this phenomenon of cross-hybridization.
When Dr. Gerdes refers to let's say a sample tested in July of 1993 and refers to that as an instance of contamination or, quote, unexpected alleles, then by necessity presumably, the photograph has to come out to demonstrate in fact it's a lot weaker than the evidence samples, that is the alleles that are present and are in fact called by the analyst and almost always is significantly fainter than the C dot which the Court I'm sure will recall was one of the controls in place. The jury wouldn't necessarily have to revisit sexual assault spill over and finding, for instance, victim's DNA in a sperm fraction or vice versa. The jury would have to hear about hair shaft DNA because Dr. Gerdes on several occasions refers to, as again, contamination or unexpected alleles, depending on which term he chooses to utilize based on results obtained from hair shafts. The jury would need to hear, for instance, or actually see in some instances the absence of the allele that Dr. Gerdes says is present from a photograph. And that, again, could involve testing in May of 1993. It could involve testing in August of 1994. The jury would have to see how contamination is signaled. What are the types, what are the types of signals that tell the analyst, that alert the analyst to the problem--well, not actually the problem, but the proper performance of the control in demonstrating this potential of contamination. And then lastly, the jury would have to hear about casework mixtures. There are at least one--actually there may be more than one instance--of--there is more than one instance--of casework mixtures that Dr. Gerdes refers to in his chart and do we in fact relitigate those particular cases. With these strips by necessity--and I've referred to the use of photographs--a photograph, question and answer about the individual samples in that photograph, why an instance alleged by Dr. Gerdes to be contamination is not contamination and a discussion about that, and again showing to the jury what does contamination really look like and how is it signaled, this would literally require a trial within a trial and it may require a trial within a trial as to many cases that were conducted, that is in terms of testing conducted by the DNA laboratory in cases totally unrelated to the present. That I would suggest to the Court is the type of material that section 352 is exactly designed to address, to avoid these dangers of confusion and misleading the jury and, secondarily, what may well consume much testimony and in fact who knows how much testimony. That concludes my comments as to evidence code section 352. The Court I'm sure will recall that in the motion, there is reference to the hearsay opinions of other experts. I didn't intend to address that because it's been addressed previously in argument to this Court, and it was simply to reiterate to this Court the fact that our position about hearsay opinions still stands, particularly in reference to the Price and Corsack cases, which, again, were previously cited to the Court.
The key Defense contention with respect to the DNA evidence in this case is in fact that through the inadequate substandard evidence handling procedures in the Los Angeles Police Department, their custom and practice, the evidence--key pieces of evidence in this case, the Bundy blood drops, the Rockingham glove were cross-contaminated. Once they're cross-contaminated in that laboratory, as the Prosecution's own witnesses have admitted, it doesn't matter what the results are at LAPD and--the Department of Justice--I'm sorry--and Cellmark because they're going to be consistent because of the initial cross-contamination. That has been our contention since the opening statement where we used that black box showing all the evidence samples going into the LAPD, and on the other hand, the Department of Justice at Cellmark. It was the clear thrust of the cross-examination of the witnesses from the Department of Justice and Cellmark and LAPD. There's no secret. Mr. Clarke gets up here and says, well, they're going to do that. They shouldn't be allowed to focus so much attention on contamination at LAPD. That's our defense and it's a respectable scientific defense. And what's most interesting of all is that when we went to the lab and we looked at the data from all the different hybridization strips, which I'll discuss in a second, we found concrete overwhelming data about the inadequate procedures at the Los Angeles Police Department, the inadequacies of their controls to detect contamination, their inability to understand that they had contamination and what to do about it, their gross violation of every fundamental procedure and protocol of running a competent DNA laboratory. That's what we found. And not only that, we found precisely those issues in this case. The use of plastic bags to handle wet swatches that would degrade them, the handling of degraded DNA samples in the presence of a reference sample by Mr. Yamauchi when he handled the Bundy blood drops and the glove between 9 o'clock and 11:20 is an absolutely critical period in this case. And those customs and practices are the same kinds of customs and practices that were used in all these other samples, their own validation studies, the way they handled database samples and the way they handled casework. And I'll discuss what he does with casework in a second. So the key point here is, we found chronic contamination in the work of this laboratory. The procedures which were used in this case were the same procedures that were used on these samples. So this data shows the inadequacy of those procedures. Key point, the controls that were used in the LAPD validation studies, in their casework, in their proficiency tests and the strips that Dr. Gerdes looked at are the same controls used in this case. What his data shows and what the national research council, as I've pointed out to the Court in our arguments over discovery, concurs is that in this system, these controls are not necessarily adequate to demonstrate contamination in a particular experiment, although one can have contamination in the laboratory as a general matter. In other words, if at some period of time, you're getting runs of extra dots or contaminants and positive controls and quality assurance samples and negative controls during a period of time, you won't necessarily see it in a particular case, but it will show up again. And it doesn't mean the absence--I guess it's the absence of evidence argument again. But scientifically, it doesn't mean that there isn't contamination in the laboratory and that the particular experiment in question wasn't contaminated. This data proves that. This data shows lots of contamination and in many instances, the negative controls are clean. One of the charts that I showed you on Friday shows that the extraction control is dirty 40 percent of the time between May and July and the amplification control is--shows no contamination. It shows that the contamination that we're getting is coming from the sample handling procedures, that the handling of the samples initially in the extraction, that would be the evidence processing room and the serology lab where all the samples were handled by Mr. Yamauchi, that's what the data indicates the contamination comes from. Not when they go to the Parker Center and they do the amplification. So this data goes directly to the sample handling and it shows exactly where their contamination is coming from. The argument of the Prosecutor here is that without any affidavit or any expert opinion, he's coming forward and saying, well, we disagree with Dr. Gerdes' judgment. And I should say that the same analysis that Dr. Gerdes is going to be put forward--is going to put forward will be seconded by Dr. Mullis. So they're substituting their judgment. They're saying, this analysis is wrong, that this contamination doesn't make a difference, it doesn't produce errors, it doesn't indicate that they have substandard procedures, it doesn't indicate that the same procedures they used in this case are inadequate. And those are classic matters of weight. If they want to cross-examine on those points, they should be free to do so. But this is the heart of our defense, and it seems to me that there's no factual scientific basis in this record other than Mr.--
Particularly the Bundy blood drops, the glove, the Bronco. How important is DNA evidence to the Prosecution's case? I dare say it is, in the words of the McDonald case, which strangely enough, the People are citing, a key element of their proof. And it's something that we should be given full latitude to rebut.
And frankly, when they put on a Coroner for eight days in the fashion that they did, it seems to me that one day of direct testimony of Dr. Gerdes where he indicates exactly what he found at the LAPD laboratory and ties it directly to the procedures used in this case and the issue of contamination and cross-contamination ties it directly to all those questions I asked Gary Sims about cross-contamination factors in the laboratory. We're going to go through precisely those same logos, precisely those same areas. Gary Sims admitted that all those practices created a risk of cross-contamination. He on the other hand felt, well, it's not a sufficient risk and it's not so terrible in this case because I'm going to rely on the substrate controls. But it's not like the Prosecution witnesses said, that the practices and procedures followed at the LAPD laboratory were sound. Frankly, I think that they indicated quite the contrary. The question is, if you're engaging in those kinds of practices, how bad can your contamination problem be and can that contamination problem cause errors and can you be having cross-contamination of samples and not detecting it with these particular controls.
The data that we've gotten from the Prosecution's own laboratory goes to this issue. It corroborates the point. It's what Dr. Gerdes and Dr. Mullis are going to testify to.
So you're saying that you can present this in an intelligible fashion in one court day?
Yeah. Maybe a court day and an hour because I'm not so quick with the exhibits. But I showed you the charts. Oh, this part of the direct examination is half a morning. I mean, this is no more than an hour and 20 minutes. I think that what should be noted too is that Mr. Clarke gets up here and says, well, you know, this DQ-Alpha system has a problem. Sometimes when we see 1.1 dots, it could be what is known as an artifact, this so-called DX gene, and sometimes when we see 1.3, that could be a cross-hybridization. And the testimony in this case from the user guide, which incidentally, not all the Prosecution witnesses accept as a bible. Robin Cotton rejected parts of it. But the user guide says that if you put too much DNA in a lane, you may get cross-hybridization.
We cross-examined Gary Sims about the 1.3 allele that will come up in Dr. Gerdes' testimony that was present on sample 31, which is a stain from the Bronco console. It is that dot, that light dot that puts Mr. Goldman's genotype in the Bronco from the collection on June 14th, that dot and that dot alone. Yet on evidence item no. 52, when they get a 1.3 dot of similar light intensity, they reject that one and say it's an artifact. The whole issue--and in either--in neither instance is there a large amount of DNA. The point is, is that there's a very, very serious debate about the limitations of this system with respect to that 1.3 dot. Now, in the chart and in the presentation to the jury, Dr. Gerdes makes very, very clear--it's why he renamed that chart that just contains his raw data to unexpected alleles instead of just contamination because we're making the distinction. We're going to make it very clear, there is certain instances where there's artifacts, there's certain instances where you see a 1.1 dot on a strip or a 1.3 dot on a strip, which arguably is either a contaminant or an artifact. But it's our position in that situation is that you have to presume that a contaminant or any sensible lab would, and certainly you can't draw many conclusions from that. And it's a serious defect in the system. It comes out through an examination of this data, and the fact of the matter is, it's in some of the most important case samples here. It's right on the DOJ typing strip with respect to the Bronco console, item 31, and it's right there on item 52, the Bundy blood drop, and it becomes a significant issue. So I don't understand how Mr. Clarke can get up here and say, well, here's a--we understand what it is. So it's okay, and Dr. Gerdes and Dr. Mullis are not allowed to get up there and say that they disagree with him. And I haven't seen anything else here in terms of expert affidavits that--in terms of a 352 motion that would justify the extraordinary remedy of precluding their testimony. Even the examples that Dr. Gerdes can give with respect to typing errors, it's very interesting. I may have this wrong, but I believe the two examples that Mr. Clarke are talking about are a proficiency test that was performed by LAPD. And the first typing error, they mistyped the reference sample from a victim in a rape case. That's all the lab knows. It's the blood from the victim in the rape case. They mistyped that.
When they look at--on the same run at the epithelial cells from the extraction from the vaginal swab, they see that it doesn't match up. In other words, it's a rape case, and the person who's supposed to be the rape victim in the evidence sample has a different genotype than the blood from the victim. So what do they do? They do it again. And as he indicates, they get the same wrong type. Why are they getting the wrong type? Because there's a 1.3 allele that I think by his own presentation, he's conceding is a contaminant. Because it showed up in the negative control, it's a contaminant. I mean, it's one thing to say, well, the control, quote, unquote, worked. Well, what it's indicating is a contaminant. We don't see anything in their analysis of this proficiency test that says, we did it twice, we came up with the 1.3 contaminant, where did that come from, how did we get it or it's not really a contaminant, it's a cross-hybridization. What we see is that they do the proficiency test a third time until they can resolve the discrepancy. And it is the third time that they turn in the results.
And frankly, we are going to offer testimony that that is completely contrary to the way that any good laboratory should be taking a proficiency test or running with a proficiency test because in a case, you couldn't do that necessarily. You couldn't do that at all. And that's the problem with the way these labs work. And we are making a no holds, bar attack on the forensic community and the way they deal with proficiency tests and their failure to do external blind proficiency tests, their failure to do hard tests that replicate the very samples in this case. Not one of these laboratories testified that they ever did a proficiency test that involved mixed blood samples or degraded blood samples with the possible exception of the first two California association of crime lab director studies. And in those cases, Cellmark got false positives on RFLP, and their second false positive, as our witnesses will point out, is a model for this case.
Okay. So we think all that is plainly relevant, it goes to the heart of our defense in this case and we should be allowed to present it. Now, just to be clear about what Dr. Gerdes looked at, he looked at everything. We can see every strip up to I guess August that the lab typed.
But you haven't even addressed Mr. Clarke's fundamental argument, that a lot of this stuff deals with testing casework validation studies, proficiency testing years before and significant time after and traditionally here in California, we restrict that kind of testimony to a reasonable window period along the relevant testing in question.
The reason that you shouldn't impose a 30-day window is because it is a chronic problem and it goes to the heart of the laboratory procedures. By the literature we have itself from the NRC and from others and even the present case law in this case, we don't know enough about DQ-Alpha testing or PCR base testing to state with any assurance that the chronic contamination problem that begins in the second month that the lab is in operation and goes all the way through wouldn't be affecting results in this case. In fact, we have quite the contrary. One of the kinds of contamination that we can have is what's known as PCR carry-over contamination, and that is a literal accumulation of amplicons.
And if that kind of amplicon buildup begins in a laboratory and is not detected and it goes unchecked, it will affect analyses for years. In clinical laboratories, what they have found in external tests on hepatitis, on aids, HIV virus, on a whole host of--Lyme disease and a whole host of organisms is, once you get this kind of contamination in your laboratory, they have to close the places down. They can't get rid of it. And the problem we have in the LAPD laboratory is that our data shows chronic and substantial contamination that was not detected, not recognized for what it was, wasn't dealt with throughout the time that they literally started taking cases all the way through this case. Now, we are going to of course, and as you saw our charts, are going to zero in on this particular case and the window here. But what we have to demonstrate through their own validation studies--they call them validation studies because they're supposed to validate that their people are using correct procedures that won't cause contamination--through their validation studies, through their easy work on just taking known samples, for example, in the Korean database--from their own proficiency testing, which are the closest thing we have from casework, we see these same problems, contamination due to sloppy handling techniques, poor handling techniques, defect in their basic protocol, again and again, not picked up by negative controls. These are the key areas of proof. So we think that we have to have the opportunity to present that data.
Well, we're going to show first the broad--we have the data from the very beginning of the laboratory. We're going to show the general pattern in terms of the strips, all the strips analyzed, all the runs analyzed each month to show how chronic and substantial the contamination is. We're then going to show a chart that explains exactly where the problem lies, particularly in May through July in terms of the extraction controls, the window of this case. So we're going to start with the broad problem, indicating how it is inherent in their procedures and their system, it's systemic, and why that's important. Then we're going to narrow in in terms of the data on the window of this particular case. But it's the only way to rebut the basic contention that they say, well, look, these controls work in this experiment. Therefore, everything's fine. Our data shows again and again the inadequacy of the controls and the contamination errors. And they can say all they want that light dots don't make a difference. But their own witnesses conceded that when you have a mixture, that the primary component of the mixture, the primary contributor can light up that C dot, and then you're going to have light dots within that mixture and it makes it very difficult to interpret. The user guide, everybody says that. The NRC says that. So when you have these kinds of low-level contamination problems, it's a serious matter and it goes right to the heart of the evidence in this case.
The other thing that we're going to show here--and it distinguishes it from breathalizer in a number of ways--but they never got it right. From the moment they opened up this laboratory, they never got it right. We're going to put on testimony, for example, that the hood, the biological safety cabinet where all the extractions are performed--Mr. Matheson, Mr. Yamauchi testified they thought was a laminar flow hood, a laminar flow hood that has a circular air flow. It's not a laminar flow hood. It's a chemical hood that sucks in all the air from the laboratory and right through that area. That is a fundamental. The reagents on the counter are not properly aliquoted and are out of date. We're going to show that. We're going to go from a broad analysis showing chronic contamination of the laboratory to the specifics of the case, to the--every one involving the same procedures that are used here and right to the reagents, right to the work station and show that it's a chronic problem, that these people really don't know what they're doing. And if that's the case, if that's the case, their whole DNA defense which rests on this notion that, well, these substrate controls were definitely run strictly and parallel, everything was done right, when Mr. Yamauchi opened up the reference tube, he couldn't have--it may have been a bad practice to do it at the same time as the evidence samples, but he couldn't possibly have made a mistake, those kinds of things don't happen--well, in this lab, they happen and they're high-risk conditions that invite error. And that's the only way we can directly attack that in terms of proving that it's a systemic problem by a laboratory that has inadequately trained personnel, inadequate procedures that cause contamination that lead to errors. That's precisely the theory of our case. So this is the guts of it. It won't take more than I think two hours to put on those charts. The charts will directly zero in on the evidence. If it's going to take Mr.--Mr. Clarke I think backed off a little bit, the argument that he couldn't delineate the difference between his witnesses or himself and Dr. Gerdes on this DX question or how you interpret a strip. He's a very skilled advocate. He'll get right to the point. Everybody knows what the criticisms of Dr. Gerdes and others are compared to people in the forensic community. It's a debate that has to go on in front of the jury. It's a debate that would have gone on if we had had a Kelly-Frye hearing. I'm not at all certain that this evidence would be before the jury today if we had actually had that hearing. And this would be classic prong 3 kinds of material with respect to LAPD.
Thank you. Just with regard to the fact that this was brought up in opening statement, that is not a vehicle that makes evidence otherwise inadmissible, somehow admissible. Obviously, the Defense has placed stock in their allegation that this was a laboratory that suffers contamination. That's been a theme not only in opening statement, but also in cross-examination. But it doesn't make it true and it doesn't make evidence otherwise inadmissible somehow admissible. Now, Mr. Scheck spoke just a few moments ago about a chronic problem. The allegation is, it's a chronic problem, but it didn't happen in this case because the evidence, the particular samples in this case, the absolute wealth of controls demonstrate it didn't happen here. So the question is, is something that's alleged to have happened previously or as much as 13 months before the testing in this case or even a month before the testing in this case, is that sufficiently probative to outweigh confusing and misleading the jury. And I think that's the central question that ultimately this Court is going to have to decide.
And it's clearly our view that 180 mini trials going over the 180 allegations that Dr. Gerdes has made is not called for in this case because of the wealth of results, because of the fact that the controls operated as they're supposed to and because of the--
Of these 180 strips you're talking about here, how many were done by the operator in this case?
I haven't made some of the tabulations that the Court has asked me questions about. I would estimate a quarter. I think Miss Reilly conducted more tests, and there was a third analyst, Mr. Klan as well. So I would estimate during the whole time period, that Mr. Yamauchi was involved in perhaps a quarter, a very rough estimate again. Now, the Court has raised the question of Mr. Scheck, well, can you do this in a day, and Mr. Scheck just now mentioned he can do it in two hours. I think it can be done in an hour from their perspective. That's not the problem. All they have to do is mark the charts and have Dr. Gerdes describe, well, this is what I've discovered and not get into an individual sample at all.
But the problem is, the incorrect opinions that Dr. Gerdes is giving about these 180 samples, and not all of them, but certainly by far, the bulk of them, would have to be exposed stone by stone. And that is where time comes into play. But again, I don't want the Court to think that this is an allegation resting primarily on time, although it would ultimately I think consume a good deal of time. It's the danger of misleading this jury into deciding 180 separate trials or 180 separate cases. And I don't think that that's the type of probative value, particularly in the context of the results in this case and the fact that the controls operated properly, that merits this type of showing.
Did anybody besides Mr. Yamauchi test the strips involved here, do the DQ-Alpha testing that we're talking about here?
Erin Reilly's name came up several times, but my recollection is that she did not do any of this testing.
Yes. Only Mr. Yamauchi. There is nothing that prevents Dr. Gerdes or Dr. Mullis or whomever the Defense has testifying talking about the results in this case, 1.3 alleles and when they can or cannot show up, the same with 1.1 alleles and all the traditional materials that Dr. Gerdes has testified to between 20 and 30 times. He does this frequent, he does this often and he discusses case specific results and what he believes to be limitations of the system nearly every time. So there's nothing that precludes those experts talking about these factors that Mr. Scheck just brought up. But the difference is, does the Defense have the right to go into all of these extraneous tests that weren't involved in this case, which, as I mentioned, cover a 15-month time period and cover obviously a great number of strips. It's our view that the Defense does not have a right to try 180 different cases. And ultimately while they might be able to do it with great dispatch, it would mislead the jury to hear that evidence without truly exposing Dr. Gerdes' opinions in each individual instance.
Just a brief factual point. Erin Reilly--the testimony in this case was that Erin Reilly was the supervisor of Mr. Yamauchi and the two of them set up the lab together. She supervised the DNA work in this case, reviewed the results. The point is, it's systemic. It's a systemic problem, and that's what our data shows. They set up these procedures together, they followed them together. It won't do to break out Mr. Yamauchi from Erin Reilly.
Because the controls at issue, the procedures that they followed presumably are followed by the operators. And what we have here is systemic. It shows that the--
Well, if it's systemic, then it would apply to Mr. Yamauchi just as it would Miss Reilly, wouldn't it?
Well, the problem is, is that you don't get to see the full pattern of it if you just break out the operators in that fashion because it deals with runs on a particular day. If there's a contaminant, contamination problem in the lab on a particular day or the run as we have our run chart--
Mr. Scheck, your allegations are basically this. That, one, there was cross-contamination of the evidence, and that was specific to Mr. Yamauchi, correct?
I understand. Then the next point being that the manner in which this lab was set up has some significant problems, the use of this particular type of a hood, the draft hood. I don't know what you call it.
All right. Then you have problems with what, amplicon contamination that you see evidence of?
Because it isn't. Because if you have amplicon contamination, for example, or if you have some other source of genomic DNA contamination, it's all the same people in the same work areas. They create the amplicon contamination. For example, it gets into the reagents. It gets into various different places. It could be Erin Reilly doing it. Then Mr. Yamauchi goes in there and all of Mr. Yamauchi's samples are contaminated or all of her samples were contaminated. It's inherent in the procedure of the laboratory.
Well, it would apply to the work he did. But in order for us to demonstrate a pattern, a chronic pattern of contamination, which we ought to be entitled to demonstrate, we have to show data from their validation studies, just typing even known samples from a database they get this kind of contamination. The testimony will be that in this kind of a laboratory, with the great sensitivity of PCR, one doesn't know exactly how it happens. Robin Cotton testified that in the CACLD false positive the second time, they had a witness in the room looking at all the transfers. And all that they concluded in the end was that when you had degraded specimen with a high concentration reference type specimen, that's how it happened. Therefore, they didn't follow that procedure. What we have to show here is that there's chronic and substantial contamination. Now, one thing I really--
You can't show that by examining all of the validation work, all of the proficiency work and all of the casework of this one operator out of these hundreds of tests?
Well, no, for this reason. And that is that the way this analysis is conducted, particularly with respect to the casework, when we looked at the casework, you can't find from the evidence samples--we don't know who the individuals are. The only thing we could look at in casework were positive controls, that is the sample that comes with the kit, that's the--you know it's DNA that has 1.1, 4--a negative control, either the amplification control or an extraction control, and a quality assurance sample, known DNA from somebody. And you will look at a particular--you remember the chart on runs that we showed to the Court on Friday. Well, a run would be all the strips done in a particular day. If there is a 4 contaminant that seems to be running through the laboratory from some source, be it amplicon carry-over contamination that's in the reagents or on somebody or some thing or some set of instruments or if it's some genomic contamination from some source, you can't--you have to be able to see the whole day to see when it's showing up, both Reilly samples and Yamauchi samples or Klan samples, the three people that were involved in doing testing. In order to get a sense of the chronic contamination, you have to show that. And in order--and one of the big points is that, it's not going to be a trial of 180 samples. Mr. Clarke is going to say, Dr. Gerdes, when you see a 1.1 here on some of these samples, it could be a contaminant or it could be DX sometimes, right? There's an ambiguity. And Dr. Gerdes is going to say, yeah, for all of those, since there's ambiguity there, I think you have to regard it presumptively as an contaminant. Theory, it could be DX, but I have reasons when I look at the negative control here performed by Erin Reilly in the morning and it came up with a 1.1, I can say that Mr. Yamauchi's samples over here were a 1.1 emerged, it must be a 1.1 contaminant, not an artifact because it showed up on the negative control. And that's what was in his report. In order to make an adequate statement about contamination and to resolve ambiguous situations with the 1.1's and the 1.3's, you've got to look at the whole run and all of the samples.
So there's no easy way of breaking out the different sets of controls run on a particular day. We have to show that all the samples run on a particular day, the so-called run, they had contaminants on them. That from our point of view is the kind of proof we have to put on, that it is accumulating, chronic and systemic and it relates back to--
Well, why can't we restrict that then to a reasonable time period around the tests in question?
Well, because you can't show--it goes back to the amplicon carry-over contamination argument and all the other arguments. He have to be able to show--
Well, it's there, but it's not--but it's very important to show that it's from the beginning, it's cumulative, they never got it right and it continues all the way through. And frankly, one of the things that is a bit unfair is, they didn't run as many samples in June as they did in other months. And when you run more samples in other months and you get more contamination, it's more evident.
Because the phenomenon here that we're dealing with is that in any particular experiment or set of experiments, some controls may be clean, but there still may be contamination there. That's one of the big points that we have to make, that in some respects, it's counter-intuitive and the Prosecution is trying to harp on. They're saying, well, just look at the strips here. They're clean. Therefore, there couldn't have been contamination when in fact, the cumulative data shows there's plenty of contamination, the kind of contamination that scientists will tell you is not necessarily revealed in every case. Now, it's--we really have a right I think to put on that kind of systemic proof. It's not going to cause any kind of a mini trial. The issues here between Dr. Gerdes and the Prosecution experts about how you make certain kinds of calls qualitatively do not involve 180 strips of controversy. It involves some controversy over how he regards faint dots below the C, which they'll say you can ignore and our scientists say it's contamination and you can't ignore it. That's the nature of the debate. It's going to be a qualitative debate about a chronic, systemic, substantial condition, and I really think that we have to be able to put that on to show the context and to rebut the inference that their techniques--they testified--Yamauchi said, Matheson said--trained by Erin Reilly--she looked at it. If we just do the things the way we do them, then it is going to be okay. I can't even specifically remember what I did. I can't specifically remember whether or not I changed gloves. It's not our policy to change gloves between each sample. It's not our policy to scrape the tube and create the aerosol. That's the kind of sample handling techniques we should be allowed to show by looking at the broad range of data producing contamination. They're saying, well, maybe they're not the best techniques in the world says Gary Sims, but it couldn't have made a difference, wouldn't make a difference in general. This data, the long-term chronic and systemic contamination data shows that these systemic techniques were causing systemic contamination.
But, counsel, if it's chronic contamination, it would show up within a reasonable period, window, around the testing.
Well, it shows up, but it doesn't show up because they didn't do as many test strips in that--
It shows up, but doesn't show up, because they didn't do as many strips, as dramatically as if you had contaminants floating around.
No. Well, dramatically as substantively to show how chronic the problem is. It's not enough just to say that we see some evidence of it between May and July. It's critical when the nature of the contamination--the expert testimony will be, once you have a contamination buildup, it's chronic and substantial.
Mr. Scheck, I've got two problems with your argument. The scope of the inquiry that you are going into--
--and the fact that it's not specific to the person who's testified. That's the problem I've got. Now, how do you solve that for me?
No. 1, the larger window. The larger window is necessary, a, to show how contamination leads to errors. The typing errors are outside the window on earlier samples, proficiency samples, validation samples. So we needed to show that. We need to show a larger window because--
We need to show the pattern is from the day the laboratory opened the doors through August. And the reason we need to show it has to--goes to the particular nature of a PCR laboratory. That is, contamination is a problem, is a cumulative one. If it first occurs, it builds up, it becomes chronic and substantial and you can't get rid of it. The failure to recognize that they had this problem and the failure to get rid of it, which we can only demonstrate if we go into the larger window, is essential to proving that it was a serious problem in June--May, June and July of 1994. Unless we do that, we can't put on adequate proof to substantiate this contention. And we ought to be--it's not like a breathalyzer.
I don't have another alternative in terms of showing those charts. I have to show the charts. I mean, you want me to revise these charts not from May, but starting--I mean it's--in terms of the nature of the problem we're showing.
All right. Why don't you contemplate, you and your colleagues contemplate that question. Tell me why I should allow it beyond Mr. Yamauchi.
It's really the same answer. And that is that the causes of contamination are a laboratory wide causes. The adequacy of the controls are not unique to the operator. The adequacy of the controls--and that's what this data is going to show--that the negative controls are not adequate to pick up the extent of contamination. That's why we have to show the large window and that's why we have to show data from more than one operator. You can't show the extent of contamination of the laboratory by looking at just one set of controls done by one particular operator.
But then Mr. Clarke then has to come back and show all of these things and show a contrary interpretation, doesn't he?
Well, it's not really the thrust of his argument. The thrust of his argument is not--
Well, I understand that. But he is not going to say, oh, on each one of these 180 strips--even in his paper, he admits that there's contamination here. He's just--in his argument he said, well, look, you see, the 1.3 negative control showed contamination. So the control worked. Our analyst is going to say that 1.3 in the negative control shows contamination and what you did about--and you didn't do enough about it. It's not enough to note that--90 percent of these contaminant dots they wrote down. They wrote 1.2, 1.1, weak 3. They say, well, we wrote it down. That's enough.
Our experts are saying, no. The fact that that 3 is there, that's only the beginning of the problem. What you have to do with the laboratory once you have this kind of contamination is shut the place down. You have to change all the reagents. You have to scour the place. You have to go back over all your procedures. You have to clean house from a to Z. That's what happens. Otherwise, you're going to have this amplicon buildup where you're going to continue following the same poor procedures and the contamination is going to become cumulative and worse. That's what makes it different from other kinds of technology. That's what all the readings that we went over with the Court and submitted in the briefs earlier, that's what the national research council has talked about as the special dangers of PCR, that you get a general contamination, a chronic and substantial buildup. We need that window to show this kind of chronic and substantial contamination of the lab. It is not operator specific. It is systemic. And you can't get an adequate picture of it, it's in fact a misleading picture of it if you only show data from one particular analyst.
You have to show the overall--he looked, he went through the casework irrespective of who did it and was looking at how many times you got a contaminant on the controls. And unless you see that general pattern, you don't have a notion of how serious the contamination problem is.
The final point I could make, your Honor, is that this is the opinion of Dr. Gerdes and Dr. Mullis about a--this kind of peculiar technology, PCR testing, which is sensitive, which has--I don't think there can be any dispute--this sort of cumulative buildup in terms of contamination. It is their judgment. What the Prosecution is asking you to do is--based on their bald assertions here, is to limit the scope of the proof. They're asking you to make a scientific judgment frankly in this case. That is what our experts believe. They believe that whole window is the basis of their conclusions to show that the controls are inadequate to pick up contamination in any particular case, that this lab was peculiarly terrible, it should have been shut down. The testimony would be shut down if it were any other kind--by any other normal laboratory standards because of that systemic, chronic, uncorrected contamination. That's their scientific judgment. That's the thrust of their opinion. And it seems to me that it's unfair to restrict it, particularly if the time in question is not that great. The fact is, the Prosecution took many, many weeks and many, many months to put on this DNA evidence, to educate the jury step by step. We ought to have the right to present the problem of contamination in its systemic, chronic and realistic form. If the Prosecution wants to come in and cross-examine them at some length, well, you know--it's unfair to say, you can present your case clearly and make the points clearly here and the Prosecution would take a long time--because it would be their strategy probably to take a long time and not to deal with the thrust of the issue.
And make--and belittle it and say, Dr. Gerdes, you're a professional witness, you come in and this is your job to do this, right, you've testified to the same thing 30, 40 times, correct, People versus so and so and go through all for the Defense, blah, blah, blah, you're just a--
All right. Another fascinating day. All right. This is a motion that the Court takes as a motion under 352. And I agree with you, Mr. Scheck, that this is unlike single type technology like gas chromatograph evidence where it's a relatively simple machine and it's something that either works or doesn't work. PCR based DNA testing is a very sophisticated and is a technique and is subject to a lot of problems, not the least of which is interpretation of results and evaluation of contamination. We also have the other problem that the technology itself involves the multiplication of the sample itself, and that technology itself lends itself to contamination. I'm troubled by the non-operator specific nature of your offer, Mr. Scheck, and I'm troubled by the broadness of the window. I'm going to allow you to present Dr. Gerdes regarding the systemic problems inherent with PCR. I'm going to allow you some latitude going beyond Mr. Yamauchi as well to show other examples. I accept your representation that you can present this in six court hours. I agree with you that the Prosecution has had significant amount of time to present their DNA case, and I think your request in that respect is not unreasonable given the nature of what I have learned about PCR based DNA testing. But I take you at your word that you're going to be precise and succinct in this matter, keeping also in mind that we're dealing with a jury that has to understand it to believe it and that the cross-examination will go into the fact that it's non-operator specific, that we have a wide window relevant to this case that isn't--doesn't show this contamination, the other items that I mentioned, which is what I would do if I were on their side and bail out. All right. Are we clear?
But with a time limitation and with the understanding that I'm giving them counseling that--I'm allowing them to go beyond the single operator, but not a lot.
I understand we're--no. We're going to see the boards. I understand that. I understand that. But we have a particular issue, sophisticated scientific issue with regards to this particular type of testing. I think they're entitled to show their opinion as to what it is. And you can come back with the fact the controls worked and that there's no systemic error apparent within the window regarding this testing and that particular care was made with regards to these tests and they're corroborated by all the other test results and the RFLP results and all of that. You can ask Dr. Gerdes, did you take into consideration the fact that the RFLP testing done by Cellmark, which is a much more sophisticated--much more definitive test not subject to these problems, gave us an even more precise result which points even more directly either this way or that. See, I could do this in 20 minutes.
And I haven't even thought about the first amendment problems we have to worry about today. All right. Let's take 10 minutes for the court reporter, and then we'll get to the Bosco matter. All right. Thank you, counsel.
And I don't think frankly there's any difference in this particular case.
Once they're cross-contaminated in that laboratory, as the Prosecution's own witnesses have admitted, it doesn't matter what the results are at LAPD and — the Department of Justice — I'm sorry — and Cellmark because they're going to be consistent because of the initial cross-contamination.
We have a multi-hearted beast here. Every argument I hear, this is the heart of our defense. And I've heard that — this is the third time I've heard that argument today.
It's the danger of misleading this jury into deciding 180 separate trials or 180 separate cases. And I don't think that that's the type of probative value, particularly in the context of the results in this case and the fact that the controls operated properly, that merits this type of showing.
One of the charts that I showed you on Friday shows that the extraction control is dirty 40 percent of the time between May and July and the amplification control shows no contamination. It shows that the contamination that we're getting is coming from the sample handling procedures, that the handling of the samples initially in the extraction, that would be the evidence processing room and the serology lab where all the samples were handled by Mr. Yamauchi.