All right. This is a board title of which is, "Percent of contamination by control" made through July, 1994.
Yes. The Court may recall we had informal discussions with the Court last week about these various boards, and what I'm going to direct my comments to are simply four charts, for lack of a better term, that detail percentages of contamination. And if the Court will recall, they describe contamination was a percentage of typing strips as well as a percentage of runs or PCR hybridization runs--I'm sorry--PCR runs themselves. And the objection that I have to each of them is as to their argumentative nature. Now, this one, for instance, is labeled "Percent of contamination by controls" and I think when this is presented in this type of chart form, and this one refers to negative amplification controls, as well as extraction controls, that when this chart is used in that fashion I think it really constitutes closing argument as opposed to a legitimate use of a chart with a witness in front of the jury. Now, I think what may be most expeditious is if I showed the Court each chart and then address any further comments.
All right. The next chart is entitled, "Runs: Percent with contamination by month, May, 1993 through August, 1994." It is in terms of percent. Along the bottom axis it appears to be ordered by month, May, `93, until August, `94. Underneath that are what appear to be fractions which are probably the actual number of runs.
All right. The third one is, "Strips: Percent of contamination and/or artifacts by month, May, 1993, through August, 1994." Again in terms of percent with the bottom axis being monthly with a fraction representing the raw data.
All right. The last one is, "Runs and strips: Percent of contamination and/or artifacts."
Or that probably should be titled on the top "May through July, 1994." We need to put the date on there. Maybe I will have to spoil the presentation of it by writing in by hand "May through July, 1994" on the top. I didn't notice that. This is the bracketed period.
The reason I believe these charts are argumentative to the point that they should not be utilized during the presentation--
--is I believe they are argumentative, in particular because of the use of the terms "Contamination and artifacts." It is our belief that Dr. Gerdes will concede that in many, if not most instances, what is alleged to be contamination he will concede may not be contamination, so consequently in the course of presenting this type of information with the use of the term "Contamination and artifacts," I think it is argumentative to the point that it shouldn't be used during the presentation with the witness. I think it is the type of material that may be appropriate in closing argument, but I think to utilize that in front of a jury will again run a substantial risk of both misleading and confusing the jury due to its argumentative nature of these four charts.
Your Honor, we did go over these last Friday and these boards are precisely the same form as we all viewed them last Friday, except that we added over the bottom, as I indicated to you, the raw numbers. What these represent are Dr. Gerdes' findings. He will explain, as we've discussed at length, by showing the actual strips and explaining what is meant by an "Artifact," which ones those apply to, and the basis of his finding that there is a contaminant on a run. And these charts are simply without argument listing his findings, just as the boards that the Prosecution put up list their findings, so this is what is in his opinion a scientific fact. That is going to be his testimony and they are free to attack it, so it is simply a record of his findings, his table, which has been turned over to the Prosecution, his raw notes. These are his findings.
I just so--out of completeness, Mr. Clarke did not mention the other--the other boards which I should put up by the elmo.
Would you address Mr. Clarke's specific point that Dr. Gerdes doesn't specifically say that or doesn't say that quite to that extent?
Oh. What he is going to do and we are going to explain with specific terms, and that is the reason that we made a distinction between this first board, that is, runs versus strips, and the second board, which is just runs, is he is going to explain what is meant by an "Artifact." That is to say that on the--when you see a 1.1 allele, and we are going to show the strips with the 1.1 allele, and no 1 out of the user guide, that that could be the DX gene as an artifact. Then we are going to explain by the use of breaking them down chart by chart. In other words, we are going to do it by allele.
This is the 1.1 allele, same presentation by month. These are the strips. This is the underlying data from this chart, (Indicating).
--Mr. Clarke's statement that Dr. Gerdes will say that it is not--it could be contamination, it could be something else.
Right. That is exactly what this chart is going to represent. He is going to indicate with a breakdown by allele that what this represents--and he is going to give the specific break out of numbers is that on the strips on the strips these percentages represent contamination and artifacts and he will break down the numbers. On the runs he is saying that within that run there is a contaminant. He is going to break down each of these things and explain his findings and he is going to say that when you have a situation where it is ambiguous, that is to say that there is a 1.1 dot showing up in the presence of a 1 and that could be contamination, it could be an artifact in those limited situations, we are going to break it down and explain the underlying constituent of this board to the jury. So it is not argumentative. It is simply showing the percentages in terms of exactly what his testimony is going to be.
I think it really constitutes closing argument as opposed to a legitimate use of a chart with a witness in front of the jury.
These charts are simply without argument listing his findings, just as the boards that the Prosecution put up list their findings, so this is what is in his opinion a scientific fact.
These are very nice, Mr. Scheck.
The issue here is the word 'Contamination.'