📄 Cross-examination of Dr. John Gerdes (morning, part 1) — Thursday, August 3, 1995
Address:
C:\DEPT103\CRIMINAL\1995\AUG\3\CROSS-EXAMINATION-OF-DR-JOHN-G.DOC
TRIAL
▲ Day 128 of 167

Cross-examination of Dr. John Gerdes (morning, part 1)

Witness: Dr. John Gerdes
Examiner: George Clarke
Called by: Defense • Date: Thursday, August 3, 1995 • Utterances: 846
Prosecutor George Clarke conducted a methodical cross-examination of defense DNA expert Dr. John Gerdes, attacking his qualifications, independence, and the internal consistency of his testimony. Clarke forced Gerdes to concede key factual errors about lab layout, established that Gerdes has no forensic training, no relevant publications, and has exclusively testified for criminal defendants, while also highlighting the contradiction in Gerdes accepting PCR as reliable for medical uses while condemning it for forensic use.
1 (Brief pause.)
2 (The following proceedings were held in open court, in the presence of the jury:)
3 THE COURT:

All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we have been rejoined by all the members of our jury panel. Dr. John Gerdes is on the witness stand now undergoing cross-examination by Mr. Clarke. Mr. Clarke.

4 MR. CLARKE:

Good morning, ladies and gentlemen.

THE JURY: Good morning.

CROSS-EXAMINATION BY MR. CLARKE

5 MR. CLARKE:

Good morning, Dr. Gerdes.

6 DR. GERDES:

Good morning.

7 MR. CLARKE:

Your Honor, if I may I would like to use People's exhibit 259, the Bronco results board.

8 THE COURT:

Yes. Mr. Wooden.

9 (Brief pause.)
10 THE COURT:

Where are you going to place the easel?

11 MR. CLARKE:

In the middle spot.

12 THE COURT:

All right.

13 (Brief pause.)
14 THE COURT:

All right. Dr. Gerdes, you will need to step down to see that.

15 MR. CLARKE:

Thank you, your Honor.

16 (Witness complies.)
17 MR. CLARKE:

Dr. Gerdes, this particular results board, People's exhibit 259, have you had an opportunity to either see this board or a recreation or copy of the board, if you will?

18 DR. GERDES:

I have seen brief--brief glimpses of this on TV coverage. I have not seen a copy in other--any other manner.

19 MR. CLARKE:

All right. I would like to refer your attention, if I could, to what is labeled exhibit no. 30, center console.

20 THE COURT:

Item 30.

21 MR. CLARKE:

I'm sorry, item 30. Thank you, your Honor.

22 MR. CLARKE:

And in particular, there are results from the Department of Justice in both the DQ-Alpha and D1S80 markers; is that right?

23 DR. GERDES:

Yes.

24 MR. CLARKE:

Those results you are familiar with; is that correct?

25 DR. GERDES:

I am familiar with the results, yes.

26 MR. CLARKE:

All right. Is it your testimony, Dr. Gerdes, and are you telling the ladies and gentlemen of this jury, that the DNA in that particular stain could not have come from the Defendant, Mr. Simpson?

27 DR. GERDES:

I am saying that due to the way in which these samples were handled, the testing that was conducted in that lab, subsequent testing in that lab, is a possibility of cross-contamination.

28 MR. CLARKE:

Does a 1.1, 1.2 exclude Mr. Simpson?

29 DR. GERDES:

No, it doesn't.

30 MR. CLARKE:

Does a D1S80 24, 25 exclude Mr. Simpson?

31 DR. GERDES:

No, it doesn't.

32 MR. CLARKE:

Referring you to item no. 31, the center console, are you familiar with the results that were obtained by the Department of Justice as to that stain?

33 DR. GERDES:

Yes.

34 MR. CLARKE:

And results were obtained that included a 1.1, a 1.2 and a weaker 1.3 and 4; is that right?

35 DR. GERDES:

That's correct.

36 MR. CLARKE:

The 1.1, 1.2 does not exclude Mr. Simpson, does it?

37 DR. GERDES:

That's correct.

38 MR. CLARKE:

The 1.3 and 4 does not exclude Mr. Goldman; is that right?

39 DR. GERDES:

That's correct.

40 MR. CLARKE:

With regard to the D1S80 results at 24 and 25, those are consistent and could have originated from Mr. Simpson; is that right?

41 DR. GERDES:

That's correct.

42 MR. CLARKE:

And the 24 could have originated from Mr. Goldman; is that right?

43 DR. GERDES:

That's correct.

44 MR. CLARKE:

All right. Thank you. That is it for the board at this moment, your Honor.

45 THE COURT:

All right. Can Dr. Gerdes take his seat back or are you going to need anything else? Mr. Clarke?

46 MR. CLARKE:

I'm sorry?

47 THE COURT:

Is that the only easel we are going to use right now?

48 MR. CLARKE:

Yes.

49 THE COURT:

Why don't we let down--Miss Clark, why don't you let Mr. Wooden handle that.

50 MS. CLARK:

You are right. Okay.

51 THE COURT:

Thank you. I recollect we almost killed a juror the last time.

52 (Brief pause.)
53 THE COURT:

Which is why we moved juror no. 1, if you recollect.

54 MS. CLARK:

Yes, absolutely, your Honor.

55 THE COURT:

All right. Thank you, Mr. Wooden. Mr. Clarke.

56 MR. CLARKE:

Thank you, your Honor.

57 MR. CLARKE:

Dr. Gerdes, you described having visited the Department of Justice DNA laboratory in the past, correct?

58 DR. GERDES:

That's correct.

59 MR. CLARKE:

And I believe you described for this case you visited that laboratory twice?

60 DR. GERDES:

The Department of Justice?

61 MR. CLARKE:

Yes.

62 DR. GERDES:

No.

63 MR. CLARKE:

How many times--

64 DR. GERDES:

Once in conjunction with this case and once in conjunction with a previous case.

65 MR. CLARKE:

You have visited the Department of Justice laboratory twice, correct?

66 DR. GERDES:

Correct.

67 MR. CLARKE:

With regard to the Department of Justice, they have a one-way flow of evidence; is that right?

68 DR. GERDES:

Yes, they do.

69 MR. CLARKE:

And I'm referring to evidence flow for purposes of PCR typing?

70 DR. GERDES:

Yes.

71 MR. CLARKE:

You described yesterday that in your opinion evidence at the Los Angeles Police Department was brought back following amplification into the same area that it started out in prior to or at the time of extraction, correct?

72 MR. SCHECK:

Objection, misstates the testimony.

73 THE COURT:

Sustained. He just said "Area."

74 MR. CLARKE:

You testified yesterday that following amplification of DNA, amplified DNA, that is, was brought back to the Los Angeles Police Department in the same area, correct?

75 MR. SCHECK:

Objection, again. Misstates the testimony.

76 THE COURT:

Overruled.

77 DR. GERDES:

I stated that it was brought back to that same location. It is not specifically the same room, but it is the same location.

78 MR. CLARKE:

Okay. So it is not brought back to the same room; isn't that correct?

79 DR. GERDES:

That's correct.

80 MR. CLARKE:

You have been to the Department of Justice?

81 DR. GERDES:

Yes.

82 MR. CLARKE:

When they are done amplifying DNA, where do they take it?

83 DR. GERDES:

It remains in the amplification room.

84 MR. CLARKE:

Where is the amplification room in relationship to the extraction room?

85 DR. GERDES:

I believe the extraction room is in a--is down a hall and in a large room near the entrance of the building and the amplification room would be a different room. You know, basically in the same building, though.

86 MR. CLARKE:

Okay. What are they separated by? How many feet, approximately, Department of Justice?

87 DR. GERDES:

If I recall correctly, the hall would be fifty to a hundred feet perhaps.

88 MR. CLARKE:

As far as the Los Angeles Police Department, you took a tour of that lab, correct?

89 DR. GERDES:

Yes.

90 MR. CLARKE:

I'm sorry, your Honor. I do have one more exhibit I would like to use, the photo board which I believe is exhibit 281.

91 THE COURT:

I knew it.

92 (Brief pause.)
93 THE COURT:

Mr. Wooden, when you bring that one up, can you just show it briefly to counsel, so they can familiarize themselves with what it is.

94 MR. SCHECK:

I used this. No problem.

95 THE COURT:

Yes. All right. We have seen that one before yesterday. Mr. Scheck, your client wants to see that.

96 (Brief pause.)
97 THE COURT:

All right. Proceed.

98 MR. CLARKE:

Now, Dr. Gerdes, if I could ask you to step down from the witness stand and I'm going to refer you to what are the three photographs at the bottom of the diagram that are labeled "Piper Tech product gel electrophoresis."

99 DR. GERDES:

Yes.

100 MR. CLARKE:

In your opinion is that the same area as DNA extraction is conducted at Piper Tech as reflected in the top three photographs?

101 DR. GERDES:

It is in the same building. It is not the exact same room.

102 MR. CLARKE:

What separates those two areas?

103 DR. GERDES:

There is a hallway of--I don't know how long. I don't recall. Fifty feet perhaps.

104 MR. CLARKE:

There is more than a hallway, isn't there?

105 DR. GERDES:

Well, there are doors into each of these labs as well.

106 MR. CLARKE:

Aren't they separate secured rooms?

107 DR. GERDES:

I believe they are separate rooms, yes.

108 MR. CLARKE:

In your opinion is that the same area, that is the product gel electrophoresis area, as the extraction area?

109 DR. GERDES:

It is--

110 MR. SCHECK:

Objection, asked and answered.

111 THE COURT:

Overruled.

112 DR. GERDES:

It is not the same area.

113 MR. CLARKE:

All right. Thank you. That is sufficient with that board.

114 (Discussion held off the record between the Deputy District Attorneys.)
115 MR. CLARKE:

So Dr. Gerdes, when you testified yesterday that that material was brought back to the same area, were you incorrect?

116 MR. SCHECK:

Objection again, misstates the testimony.

117 THE COURT:

Overruled.

118 DR. GERDES:

I don't believe so because there is another aspect that we didn't really specifically go into because I didn't want to go into a lot of detail, but at that amplification room at Piper or at Parker, excuse me, that is where they autoclave all their solutions and it is maybe five feet from the area where the amplification room is from--just across a very small little hallway.

119 MR. CLARKE:

Objection, move to strike, your Honor, nonresponsive.

120 THE COURT:

Sustained. Ask the question again.

121 MR. CLARKE:

Thank you, your Honor.

122 MR. CLARKE:

Yesterday you described these materials as being brought back to the same area at Piper Tech, correct?

123 DR. GERDES:

Yes.

124 MR. CLARKE:

Today you have conceded that in fact those areas, that is, the extraction room and the product gel electrophoresis room, are not the same area, correct?

125 DR. GERDES:

They are not the same room.

126 MR. CLARKE:

Well, they are not the same area, are they?

127 DR. GERDES:

I guess not.

128 MR. CLARKE:

Now, in your opinion you have had contact with work done by Gary Sims at the Department of Justice; is that right?

129 DR. GERDES:

Yes, I have.

130 MR. CLARKE:

And in fact you have reviewed, not only as a result of this case, but as a result of at least one other case, work done by Gary Sims, correct?

131 DR. GERDES:

Yes.

132 MR. CLARKE:

That has included work done using PCR DQ-Alpha typing?

133 DR. GERDES:

That's correct.

134 MR. CLARKE:

That work--I'm sorry. The work that you reviewed has included work that included PCR D1S80 typing, correct?

135 DR. GERDES:

That's correct.

136 MR. CLARKE:

It is true, is it not, that in your opinion Gary Sims is a very careful analyst?

137 DR. GERDES:

I consider him such, yes.

138 MR. CLARKE:

With regard to actually performing forensic DQ-Alpha analysis as well as D1S80 analysis, do you believe you are more qualified than Mr. Simpson to conduct that testing?

139 DR. GERDES:

I don't think there is a--it wouldn't be difficult for me to do that test. I don't think that either one of us would be more qualified than the other.

140 MR. CLARKE:

Are you familiar with the experience that Mr. Sims has in conducting PCR typing on forensic samples?

141 DR. GERDES:

Yes.

142 MR. CLARKE:

That is a substantial amount of experience, isn't it?

143 DR. GERDES:

Yes.

144 MR. CLARKE:

How many times have you conducted a PCR analysis on evidentiary materials, such as in this case?

145 DR. GERDES:

We don't do PCR on evidentiary material.

146 MR. CLARKE:

Incidentally, with regard to the Department of Justice, it is your opinion, is it not, that they have an excellent handle on contamination as far as their PCR testing?

147 DR. GERDES:

It is my opinion that every PCR lab has a problem. I feel that they do an adequate job of attempting to limit that in their lab.

148 MR. CLARKE:

Haven't you previously testified that they have done an excellent job?

149 DR. GERDES:

Yes, I believe they have.

150 MR. CLARKE:

Now, I would like to turn your attention, if I could, to your employment before you came to work for, and can we call it IAD?

151 DR. GERDES:

Yes.

152 MR. CLARKE:

That is Immunological Associates of Denver?

153 DR. GERDES:

That's correct.

154 MR. CLARKE:

That included your being a community college teacher; is that right?

155 DR. GERDES:

Yes. There was a period of time when I taught at community college in Maui.

156 MR. CLARKE:

For how long approximately?

157 DR. GERDES:

Five years.

158 MR. CLARKE:

And as part of that teaching did you conduct instruction by television in the areas of physiology, anatomy and biochemistry?

159 DR. GERDES:

I taught a class of anatomy and physiology on television. The biochemistry was not a TV class, but I taught biochemistry.

160 MR. CLARKE:

Referring to the TV teaching, you would be in front of a camera and students could watch your teaching, what, in other parts of the Hawaiian island?

161 DR. GERDES:

That's correct.

162 MR. CLARKE:

After that position did you go to work for a pineapple company?

163 DR. GERDES:

It was pretty much at the same time. I did.

164 MR. CLARKE:

And for what period of time?

165 DR. GERDES:

I believe that was between eight months to a year.

166 MR. CLARKE:

Following that where were you employed by?

167 DR. GERDES:

I was employed by the veterans administration in Denver, Colorado, at the--in charge of the MS Center.

168 MR. CLARKE:

And then when did you begin at IAD?

169 DR. GERDES:

In 1988.

170 MR. CLARKE:

Now, Dr. Gerdes, shifting your attention--and you described the fact yesterday that you have written in the area of DNA; is that right?

171 DR. GERDES:

I--I have publications with regard to various types of DNA analysis, yes.

172 MR. CLARKE:

All right. Could you describe for the jury how many of those publications are about forensic stain analysis?

173 DR. GERDES:

None of them.

174 MR. CLARKE:

Do you have any publication that deals with the area of PCR contamination in forensics?

175 DR. GERDES:

No.

176 MR. CLARKE:

Have you written any publication about the unsuitability or why PCR shouldn't be used in forensics?

177 DR. GERDES:

Well, I consider my testimony to be public record and I have done that 23 times and I feel that is the best way.

178 MR. CLARKE:

Objection, move to strike, your Honor.

179 THE COURT:

Sustained. The answer is stricken.

180 MR. CLARKE:

How many publications have you written, Dr. Gerdes, describing why PCR shouldn't be used in forensics?

181 DR. GERDES:

None.

182 MR. CLARKE:

You have made presentations to people, and I'm talking about like a lecture format, about forensic evidence analysis, correct?

183 DR. GERDES:

Yes.

184 MR. CLARKE:

How many times?

185 DR. GERDES:

Twice.

186 MR. CLARKE:

What groups have those been to? In other words, who has the audience been?

187 DR. GERDES:

Public defenders conferences.

188 MR. CLARKE:

And was that true on both occasions?

189 DR. GERDES:

Yes.

190 MR. CLARKE:

And those are the only presentations about forensic DNA analysis that you have given?

191 DR. GERDES:

That's correct.

192 MR. CLARKE:

Are you a member of the American Academy of Forensic Sciences?

193 DR. GERDES:

No.

194 MR. CLARKE:

The American Society of Crime Laboratory Directors?

195 DR. GERDES:

No.

196 MR. CLARKE:

Did you attend, for instance, the last annual meeting of the American Academy of Forensic Scientists?

197 DR. GERDES:

No, I did not.

198 MR. CLARKE:

Or the one before that?

199 DR. GERDES:

No.

200 MR. CLARKE:

Or any that have ever occurred?

201 DR. GERDES:

No.

202 MR. CLARKE:

Have you attended any--well, first of all, are you familiar with the fact that DNA meetings are put on by, for instance, the Bureau of Investigation?

203 DR. GERDES:

They have forensic meetings, yes.

204 MR. CLARKE:

And have they had, to your knowledge, meeting about DNA?

205 DR. GERDES:

Yes.

206 MR. CLARKE:

And these are--to your knowledge, are these fairly large meetings?

207 MR. SCHECK:

Your Honor, I have an objection to this. Perhaps we need to approach the side bar.

208 THE COURT:

No, we don't, but I think this will become cumulative in a moment.

209 MR. SCHECK:

Something about the nature of these meetings, your Honor.

210 THE COURT:

Overruled. You can bring that out on redirect, counsel.

211 MR. SCHECK:

All right.

212 MR. CLARKE:

Let me actually withdraw that question and ask another question. Have you attended any meeting put on by a forensic organization?

213 DR. GERDES:

Not specifically by a forensic organization. I have attended meetings where forensic topics were included as part of a broader meeting.

214 MR. CLARKE:

Objection, move to strike, your Honor, nonresponsive.

215 THE COURT:

Overruled.

216 MR. CLARKE:

Do you regularly talk with forensic experts?

217 DR. GERDES:

Fairly regularly.

218 MR. CLARKE:

Who are those individuals?

219 DR. GERDES:

Well, there are conversations in terms of cases that I am involved with, so Ed Blake, for instance, Mark Taylor, Ben Grunbaum, Simon Ford to name a few.

220 MR. CLARKE:

Are any of those individuals involved in this case?

221 DR. GERDES:

I think some of them are in terms of consultants.

222 MR. CLARKE:

What about Dr. Blake?

223 DR. GERDES:

Yes.

224 MR. CLARKE:

So you spoke to him in this case?

225 DR. GERDES:

Not about this case.

226 MR. CLARKE:

Did you have any conversations with Dr. Blake about this case?

227 DR. GERDES:

Umm, I had some conversations just with regard to communications with regard to sending me photographs and things like that.

228 MR. CLARKE:

Are you aware that Dr. Blake was present during testing by the Department of Justice in this case?

229 DR. GERDES:

Yes.

230 MR. SCHECK:

Objection, that misstates the testimony.

231 THE COURT:

Overruled.

232 MR. SCHECK:

In terms of "Testing."

233 THE COURT:

Overruled.

234 MR. CLARKE:

Did you communicate with Dr. Blake about any of what he observed about this case in terms of testing by DOJ?

235 DR. GERDES:

There was some communication about DNA concentrations. Other than that, no.

236 MR. CLARKE:

So in other words, you didn't have any regular communications whatsoever with Dr. Blake about what he may have seen going on during testing at DOJ?

237 DR. GERDES:

That's true.

238 MR. CLARKE:

You mentioned another name, Mark Taylor, right?

239 DR. GERDES:

Yes.

240 MR. CLARKE:

Is Mr. Taylor involved in this case?

241 DR. GERDES:

He--he was the individual who accompanied me for the visit to the LAPD and took the photographs.

242 MR. CLARKE:

Is he a consultant in this case as well for the Defense?

243 DR. GERDES:

I'm not sure what his role is. I just know he was involved in that way.

244 MR. CLARKE:

You also mentioned the name Simon Ford, correct?

245 DR. GERDES:

Yes.

246 MR. CLARKE:

Is Simon Ford a forensic DNA analyst?

247 DR. GERDES:

Yes.

248 MR. CLARKE:

Does he perform case work?

249 DR. GERDES:

No.

250 MR. CLARKE:

Does he perform any testing whatsoever on forensic evidence?

251 DR. GERDES:

Not that I am aware of.

252 MR. CLARKE:

You also mentioned Benjamin Grunbaum, correct?

253 DR. GERDES:

Yes.

254 MR. CLARKE:

Does Dr. Grunbaum perform any forensic case work, analysis on case work, to your knowledge?

255 DR. GERDES:

He has been in forensics for probably thirty years, but he doesn't at the moment.

256 MR. CLARKE:

Well, objection, move to strike, your Honor.

257 THE COURT:

Overruled.

258 MR. CLARKE:

Can you tell us any case he has ever performed using DNA typing?

259 DR. GERDES:

Not with DNA.

260 MR. CLARKE:

You have no specific forensic training; isn't that correct?

261 DR. GERDES:

That's correct.

262 MR. CLARKE:

You have never taken a class in forensic science?

263 DR. GERDES:

That's correct.

264 MR. CLARKE:

You have never taught a class in forensic science?

265 DR. GERDES:

That's correct.

266 MR. CLARKE:

You have no training whatsoever in police evidence gathering techniques, correct?

267 DR. GERDES:

No formal training.

268 MR. CLARKE:

Well, is a class formal training or informal training, by your use?

269 DR. GERDES:

That would be formal.

270 MR. CLARKE:

Have you had any class, been to any workshop whatsoever, in the collection of physical evidence in a criminal case?

271 DR. GERDES:

No.

272 MR. CLARKE:

Is it true that you have no personal experience whatsoever in the collection of physical evidence?

273 DR. GERDES:

That's true.

274 MR. CLARKE:

Have you conducted any validation studies involving the--I'm sorry--the analysis of forensic samples?

275 DR. GERDES:

No.

276 MR. CLARKE:

It is true, isn't it, that you have conducted no experiments in the forensic area?

277 DR. GERDES:

That's true.

278 MR. CLARKE:

You have done no studies to determine the effects of sunlight, rain, moisture, et cetera, on crime scene samples; isn't that correct?

279 DR. GERDES:

I haven't done any studies myself.

280 MR. CLARKE:

Your expertise in your view doesn't involve statistics at all, correct?

281 DR. GERDES:

That's correct.

282 MR. CLARKE:

As far as this area of forensic DNA analysis, your role is reviewing data from other labs that have conducted testing, correct?

283 DR. GERDES:

That's true.

284 MR. CLARKE:

And in fact that is what you have done in this case?

285 DR. GERDES:

That's true.

286 MR. CLARKE:

You have never tested evidence in a criminal case, correct?

287 MR. SCHECK:

Asked and answered, your Honor.

288 THE COURT:

Overruled.

289 DR. GERDES:

No, I haven't.

290 MR. CLARKE:

You are not an expert in the analysis of evidentiary material using DNA, correct?

291 DR. GERDES:

I believe I have expertise that speaks to that due to my experience in observing what is going on, reading the forensic literature and other cases I have been involved with, yes.

292 MR. CLARKE:

Haven't you previously testified that you do not consider yourself an expert in the analysis of evidentiary material using DNA?

293 DR. GERDES:

I believe I probably stated it the same way I just did.

294 MR. CLARKE:

Do you believe you are an expert in physically--and I'm sorry--analyzing evidence using DNA typing?

295 DR. GERDES:

Physically doing the testing?

296 MR. CLARKE:

Correct.

297 DR. GERDES:

No.

298 MR. CLARKE:

Is it correct that your only connection with forensic cases is reviewing another laboratory's work usually at the request of a Defense attorney?

299 DR. GERDES:

That is the majority of my experience.

300 MR. CLARKE:

Well, how many times have you been retained by a Prosecutor?

301 DR. GERDES:

Once.

302 MR. CLARKE:

Did that involve a case where a Prosecutor was trying to keep DNA evidence out?

303 DR. GERDES:

Yes.

304 MR. CLARKE:

Was that the only time you have been retained by a Prosecutor?

305 DR. GERDES:

Yes.

306 MR. CLARKE:

So is it correct then every time you have been retained to look at evidence in an individual case it has been to try to keep that evidence out?

307 MR. SCHECK:

Objection. I think that is vague and overbroad.

308 THE COURT:

Sustained. Rephrase the question.

309 MR. CLARKE:

Isn't it correct, Dr. Gerdes, that every time you have been retained to review another laboratory's work it has been with the intent, if possible, of attacking that evidence?

310 MR. SCHECK:

Objection. That is improper in terms of intent.

311 THE COURT:

Sustained.

312 MR. CLARKE:

How many times have you testified as an expert in court in this area?

313 DR. GERDES:

23 times.

314 MR. CLARKE:

How many times have you been retained to look at laboratory work?

315 DR. GERDES:

Probably on the order of thirty.

316 MR. CLARKE:

You don't testify in all the cases you are retained in; is that right?

317 DR. GERDES:

That's true. Sometimes cases are--due to the strategy of the particular case I'm not asked to come in and testify.

318 MR. CLARKE:

Is it correct that sometimes as a result of your review a Defense attorney doesn't call you as a witness?

319 DR. GERDES:

That's true.

320 MR. CLARKE:

Every time you've testified has been for a criminal Defendant, correct?

321 MR. SCHECK:

Objection, asked and answered.

322 THE COURT:

Overruled.

323 DR. GERDES:

Yes.

324 MR. CLARKE:

And in each of those testimonies you have described your opinion about difficulties with PCR, correct?

325 DR. GERDES:

That's correct.

326 MR. CLARKE:

Now, the laboratories--and I believe you said you have been retained about thirty times or was that an exact number?

327 DR. GERDES:

About.

328 MR. CLARKE:

Okay. Is it correct that most of those times it has been to review work done by Dr. Blake?

329 DR. GERDES:

Umm, I wouldn't say most of the time. I would say maybe a third of the time at this point.

330 MR. CLARKE:

So about ten times, roughly?

331 DR. GERDES:

Approximately, yes.

332 MR. CLARKE:

During those ten times did you testify?

333 DR. GERDES:

Yes.

334 MR. CLARKE:

And did you testify to your opinions about the unreliability of results obtained by Dr. Blake?

335 DR. GERDES:

I testified to my concerns about contamination and PCR in a forensic setting.

336 MR. CLARKE:

And in particular the reliability of the results reported by Dr. Blake in those cases, correct?

337 DR. GERDES:

The testimony goes to expressing and explaining the potential risks of this technology.

338 MR. CLARKE:

Well, on those prior occasions didn't you testify to twelve or more jurors, including alternates, and were trying to give them reasons why they shouldn't believe the results?

339 MR. SCHECK:

Objection, your Honor.

340 THE COURT:

Sustained. Rephrase the question.

341 (Discussion held off the record between the Deputy District Attorneys.)
342 MR. SCHECK:

Your Honor, at a certain point I may request a side bar on this line of questioning.

343 MR. CLARKE:

As far as your testimony in this particular case, haven't you testified to the same things that you've testified to 23 times before?

344 MR. SCHECK:

Objection, vague.

345 THE COURT:

Overruled.

346 DR. GERDES:

I've been very consistent. This technology has some--some risk with it and I think it is important for the jury to know about those so that they can make a reasonable decision as to how much weight to put on this kind of evidence, and yes, I've always testified to that fact.

KEY QUOTE
347 MR. CLARKE:

How many times have you testified about use of polymarker, for instance?

348 DR. GERDES:

That is a very--that is a more recent type of gene system. I would--without looking it up, I would guess probably four or five times.

349 MR. CLARKE:

And in those instances have you testified about why those results or results obtained using polymarker shouldn't be believed by a jury?

350 MR. SCHECK:

Object to the form of that question.

351 THE COURT:

Sustained. Rephrase the question.

352 MR. CLARKE:

Have you testified in those instances about your concerns about the reliability of results obtained using polymarker?

353 DR. GERDES:

Polymarker is another PCR system. It is susceptible to the same arguments, the same reservations, yes.

354 MR. CLARKE:

And lastly, how many times have you testified, if any, about the marker D1S80?

355 DR. GERDES:

Umm, perhaps three times; a small number.

356 MR. CLARKE:

And in those instances have you again testified about your opinions about the unreliability of the use of that genetic marker?

357 DR. GERDES:

I testified to the risks that need to be considered in any PCR-based testing system.

358 MR. SCHECK:

Your Honor, I have a concern about these questions in terms of--

359 MR. CLARKE:

Well, excuse me.

360 MR. SCHECK:

May I approach about this line of questioning?

361 THE COURT:

No, not at this point. Proceed.

362 MR. CLARKE:

Dr. Gerdes, could you describe for us, please, how many times have you personally conducted just the PCR process itself, this amplification process, at an actual bench, lab bench?

363 DR. GERDES:

Most of the testing that is done in our lab by PCR right now is done by technicians who are under my direction. I probably have personally done on the order of a hundred or so or more.

364 MR. CLARKE:

Is that something you do now?

365 DR. GERDES:

That I personally do testing?

366 MR. CLARKE:

Correct.

367 DR. GERDES:

No.

368 MR. CLARKE:

And in fact you testify, do you not, and I mean in areas--well, let me rephrase that. Did you ever testify, as a result of your laboratory's work, in areas other than forensic stain analysis like this case?

369 (No audible response.)
370 MR. CLARKE:

Do you testify about paternity?

371 DR. GERDES:

Yes. I have testified with regards to paternity, yes.

372 MR. CLARKE:

When you testify in that regard do you testify based on the results obtained by your analysts or technicians?

373 DR. GERDES:

Yes, I do.

374 MR. CLARKE:

In other words, you didn't personally do the work in those cases wherein you ultimately testify?

375 DR. GERDES:

That's correct, but I'm responsible to review the work and we have--if you have appropriate controls, you can look at the documentation of this kind of testing and determine if it was done correctly, if the controls look right, you have photos to look at and so forth, and pick up problems, so that is my responsibility.

376 MR. CLARKE:

And in fact this process of reviewing the work of a technician, that is the same thing that occurred in this case with regard to Cellmark, for instance?

377 DR. GERDES:

I'm sorry, I don't understand your--

378 MR. CLARKE:

As far as the in manner which Cellmark conducted testing, are you familiar with that testing in this case?

379 DR. GERDES:

Cellmark's testing, yes.

380 MR. CLARKE:

Yes. For instance, who were the bench analysts who conduct the actual physical testing at Cellmark?

381 DR. GERDES:

Paula Yates, I believe was one, and I don't recall the other person.

382 MR. CLARKE:

Would it be Julie Cooper?

383 DR. GERDES:

Julie Cooper.

384 MR. CLARKE:

In other words, they physically conducted the testing as far as using the reagents, conducting electrophoresis, if that was part of an individual process, and so forth, correct?

385 DR. GERDES:

That's correct.

386 MR. CLARKE:

And in this particular case are you familiar with the fact that Robin Cotton testified as an expert?

387 DR. GERDES:

Yes.

388 MR. CLARKE:

You are familiar with Dr. Cotton?

389 DR. GERDES:

I am.

390 MR. CLARKE:

You have had contact with her before as a result of your review of work done by Cellmark diagnostics?

391 DR. GERDES:

Yes, I have.

392 MR. CLARKE:

Dr. Cotton in this case testified based on her review of the work conducted by her analysts, correct?

393 DR. GERDES:

That's correct.

394 MR. CLARKE:

And that is scientifically appropriate to do so, in your opinion, isn't it?

395 DR. GERDES:

It is.

396 MR. CLARKE:

You described yesterday, Dr. Gerdes, the fact that your laboratory charges $100.00 an hour for your work in this case; is that right?

397 DR. GERDES:

That's correct.

398 MR. CLARKE:

Has your laboratory received funds so far for your work in this case?

399 DR. GERDES:

Yes.

400 MR. CLARKE:

How much, approximately?

401 DR. GERDES:

Somewhere on the order of 20,000 I would guess. I don't know exactly.

402 MR. CLARKE:

Could it be more?

403 DR. GERDES:

It could be.

404 MR. CLARKE:

Does that include all of the time you've put into this case up to today and right now?

405 DR. GERDES:

No.

406 MR. CLARKE:

Can you estimate for us the amount of money that your laboratory is owed as a result of your work, including today?

407 DR. GERDES:

I would guess you probably would add another 10,000 onto that.

408 MR. CLARKE:

So the total would be approximately $30,000; is that right?

409 DR. GERDES:

That's correct.

410 MR. CLARKE:

Could that amount be higher than that?

411 DR. GERDES:

I don't have the figures, so it depends on how long I undergo--I mean how long this goes on.

412 MR. CLARKE:

When were you initially retained by the Defense in this case?

413 DR. GERDES:

If I remember correctly, I was first phoned or called in September, either September or October.

414 MR. CLARKE:

Of `94?

415 DR. GERDES:

Of `94.

416 MR. CLARKE:

You have put a lot of time into this case?

417 DR. GERDES:

It--yes.

418 MR. CLARKE:

You have reviewed all the typing strips at the Los Angeles Police Department through approximately May of `93 through August of `94, correct?

419 DR. GERDES:

That's correct.

420 MR. CLARKE:

That is a fairly large task, isn't it?

421 DR. GERDES:

Yes, it is.

422 MR. CLARKE:

That took a lot of time?

423 DR. GERDES:

It did.

424 MR. CLARKE:

You also reviewed--let me phrase it as a question. Did you review all of the documentation from the Department of Justice in this case?

425 DR. GERDES:

I did.

426 MR. CLARKE:

That is a very large amount of material; is that correct?

427 DR. GERDES:

It is.

428 MR. CLARKE:

Did you review all of the material from Cellmark diagnostics in this case?

429 DR. GERDES:

I did.

430 MR. CLARKE:

That is probably a little less than the Department of Justice material; is that right?

431 DR. GERDES:

It is.

432 MR. CLARKE:

But still a substantial amount of data to look at?

433 DR. GERDES:

Yes.

434 MR. CLARKE:

When you look at this material it takes a long period of time, doesn't it?

435 DR. GERDES:

It does.

436 MR. CLARKE:

You described the fact--well, let me rephrase that, if I may. What year did you begin with the laboratory, IAD?

437 DR. GERDES:

1988.

438 MR. CLARKE:

And what year did you begin testifying as an expert for criminal defendants?

439 DR. GERDES:

1990.

440 MR. CLARKE:

You described the fact yesterday that there is a replacement for you that takes your place when you are either gone or working on other cases, that is, criminal cases?

441 DR. GERDES:

Well, not specifically. It is not like they hire someone to come in. Basically there are three individuals who are directors of this laboratory, we are all directors, and while I am gone someone has to take over those responsibilities. They take over.

442 MR. CLARKE:

Okay. So the laboratory doesn't bring in another person?

443 DR. GERDES:

No.

444 MR. CLARKE:

That is, hires an outside individual?

445 DR. GERDES:

No, they don't.

446 MR. CLARKE:

Basically the other directors in your lab--was that the term?

447 DR. GERDES:

Yes.

448 MR. CLARKE:

They pick up the slack, for lack of a better term?

449 DR. GERDES:

Yes.

450 MR. CLARKE:

So your laboratory doesn't lose any money in terms of having to pay anyone else?

451 DR. GERDES:

Not specifically.

452 MR. CLARKE:

Could I have just a moment, your Honor?

453 (Discussion held off the record between the Deputy District Attorneys.)
454 MR. CLARKE:

As far as your salary--well, do you receive a salary?

455 DR. GERDES:

Yes, I do.

456 MR. CLARKE:

Does that work out to a hundred dollars an hour?

457 DR. GERDES:

I believe it does. No, it doesn't; it is less than that.

458 MR. CLARKE:

It is substantially less, isn't it?

459 DR. GERDES:

Can you tell me a yearly figure for a hundred dollars an hour so that I can make it easy for me?

460 MR. CLARKE:

Let's sake an eight-hour day, that is about $800.00 a day, and how much would that be a week?

461 DR. GERDES:

Okay, 5600.

462 MR. CLARKE:

Okay.

463 DR. GERDES:

So--

464 MR. CLARKE:

How about a five-day work week instead of seven?

465 DR. GERDES:

Well, okay. I work seven days a week. Okay. So 4000, so okay, we are talking about--

466 MR. CLARKE:

Over 200,000?

467 DR. GERDES:

That would be about half--half of that.

468 MR. CLARKE:

Okay. Can you estimate for us approximately how much your laboratory has profited--how much money they have taken in from your testimony and work in criminal cases? Is there anyway you put a rough estimate total?

469 DR. GERDES:

Total?

470 MR. CLARKE:

Total.

471 DR. GERDES:

Over the five years, umm--umm--perhaps somewhere on the order of 80,000 or maybe a hundred thousand, over five years.

472 (Discussion held off the record between the Deputy District Attorneys.)
473 MR. CLARKE:

So is it correct then that your laboratory is billing approximately two times or twice as much as you make when you are at home working in the lab?

474 DR. GERDES:

You could interpret it that way.

475 MR. CLARKE:

All right. Dr. Gerdes, I would like to shift your attention to RFLP typing. You are familiar with it, correct?

476 DR. GERDES:

Yes.

477 MR. CLARKE:

You have no disagreement whatsoever with its reliability, correct?

478 DR. GERDES:

That's correct.

479 MR. CLARKE:

In fact, it has been used in science for over ten years, is that safe to say?

480 DR. GERDES:

Yes.

481 MR. CLARKE:

It was developed by Sir Alec Jeffries in London along with Dr. White working independently?

482 DR. GERDES:

Well, the underlying scientific principles actually are traced back to an individual named southern who developed the southern blotting technique and those individuals you mentioned were involved in the first to apply it for forensics.

483 MR. CLARKE:

And it is a technology that is used around the world, correct?

484 DR. GERDES:

That's correct.

485 MR. CLARKE:

Life and death decisions are made based on results using RFLP typing?

486 DR. GERDES:

Umm, I guess you could say that.

487 MR. CLARKE:

Well, diagnosing a disease that might kill a person, that is a life and death matter, isn't it?

488 DR. GERDES:

Yes.

489 MR. CLARKE:

And it is used to diagnose a whole host of diseases, correct?

490 DR. GERDES:

It is primarily used in genetic--diagnosing genetic diseases and in the--looking at certain gene alterations involved in some cancers.

491 MR. CLARKE:

It is used to look at, for instance, whether a person suffers from cystic fibrosis, right?

492 DR. GERDES:

That is a genetic disease, yes.

493 MR. CLARKE:

It is used to determine, for instance, whether or not a person has muscular dystrophy?

494 DR. GERDES:

Yes.

495 MR. CLARKE:

It is used as to whether or not tissue can be transplanted, as you described yesterday, from one person to another?

496 DR. GERDES:

Most labs don't use RFLP at this point.

497 MR. CLARKE:

What do they use now?

498 DR. GERDES:

They use PCR-based testing.

499 MR. CLARKE:

The same PCR that you described yesterday?

500 DR. GERDES:

Yes.

501 MR. CLARKE:

The technology?

502 DR. GERDES:

The technology is the same, yes.

503 MR. CLARKE:

And in fact isn't it true that there are a whole host of uses of RFLP typing?

504 DR. GERDES:

Yes.

505 MR. CLARKE:

You use the RFLP technique in your paternity work, correct?

506 DR. GERDES:

Yes.

507 MR. CLARKE:

Does that ever involve, for instance, making interpretations on bands that might not look exactly like another band from another sample?

508 DR. GERDES:

It does.

509 MR. CLARKE:

In other words, it involves some interpretation, correct?

510 DR. GERDES:

That's correct.

511 MR. CLARKE:

You may see faint bands; is that right?

512 DR. GERDES:

Occasionally.

513 MR. CLARKE:

You may see, as you have used the term, "Artifacts"?

514 DR. GERDES:

That's true.

515 MR. CLARKE:

Incidentally, when you have conducted a paternity test, does that involve numbers at all when you report results?

516 DR. GERDES:

Yes, it does.

517 MR. CLARKE:

In other words, you calculate a statistical probability, or whatever term, to describe how unusual it is to see these two samples matching, for instance, from a child and an alleged father?

518 DR. GERDES:

We calculate that using what is called baysean statistics which is different than what is used in a forensic setting, but it is statistics.

519 MR. CLARKE:

And does it involve multiplying results over more than one genetic marker?

520 DR. GERDES:

It does.

521 MR. CLARKE:

IAD doesn't use RFLP typing in any forensic work that is done by anyone in the laboratory, correct?

522 DR. GERDES:

That's correct.

523 MR. CLARKE:

Setting aside paternity?

524 DR. GERDES:

That's correct.

525 MR. CLARKE:

Are you aware of the number of labs using RFLP typing in forensic stain analysis?

526 DR. GERDES:

I don't know the exact number. I know there are quite a few using that.

527 MR. CLARKE:

It is in the hundreds, isn't it?

528 DR. GERDES:

Perhaps.

529 MR. CLARKE:

Dr. Gerdes, are you offering an opinion to this jury that forensic PCR typing doesn't produce accurate results?

530 MR. SCHECK:

Objection to the form of that question.

531 THE COURT:

Overruled.

532 DR. GERDES:

The PCR process itself, the method of amplifying DNA is a sound scientific principle, but the way in which it is currently--basically my opinion is it is inadequately controlled in forensic testing at the moment and it hasn't been adequately validated for that technology transfer. That is my testimony.

533 MR. CLARKE:

And you have testified to that for the last five years, correct?

534 DR. GERDES:

I have.

535 MR. CLARKE:

You have offered that opinion all twenty times you've testified, correct?

536 DR. GERDES:

Yes.

537 MR. SCHECK:

I do have an objection at this point. It has to do--

538 THE COURT:

Overruled.

539 MR. SCHECK:

It is a legal ruling with respect to the nature of those proceedings.

540 THE COURT:

Overruled.

541 MR. CLARKE:

Excuse me. Object to the objection also, your Honor.

542 THE COURT:

Noted. Overruled.

543 MR. SCHECK:

Request a side bar.

544 THE COURT:

Overruled. Let's move on.

545 MR. CLARKE:

Dr. Gerdes, in your opinion then is PCR also not appropriate to use to exclude people in forensic cases?

546 DR. GERDES:

That's correct.

547 MR. CLARKE:

You can't use to it include somebody?

548 DR. GERDES:

That's right.

549 MR. CLARKE:

You can't use it to exclude someone?

550 DR. GERDES:

The potential error, in my opinion, of additional dots due to contamination could just as likely cause a false exclusion as inclusion.

551 MR. CLARKE:

As you are using the term "Inclusion and exclusion," what do you mean, just to make sure we are talking the same language?

552 DR. GERDES:

Well, "Inclusion" would mean that you match a sample with an individual that results in them being accused of a crime, in this sense, and "Exclusion" would be that due to that testing you would come up with a result that would say that they could not have done it.

553 MR. CLARKE:

You do hold the opinion that the use of PCR in medical uses, however, is sufficient in terms of sufficient reliability to be used to produce accurate results?

554 DR. GERDES:

I do, based on all of the things we talked about yesterday where we discussed all of those items in terms of technology transfer and the relative risks of the two.

555 MR. CLARKE:

As far as this PCR process, that was invented by Dr. Kary Mullis, correct?

556 DR. GERDES:

That's correct.

557 MR. CLARKE:

Is he present in the audience?

KEY QUOTE
558 DR. GERDES:

He is.

559 MR. CLARKE:

Where is he?

560 DR. GERDES:

He is sitting right--second individual over on the first row behind the desk there.

561 THE COURT:

Between Mr. Uelmen and next to Mr. Douglas.

562 DR. GERDES:

Yes.

563 THE COURT:

And behind Mr. Scheck.

564 MR. CLARKE:

Isn't it correct, Dr. Gerdes, that your view that PCR is okay to use in medical uses is due to the number of genetic markers that are available to test and the fact that you can confirm those results with other tests?

565 MR. SCHECK:

Objection, compound and vague.

566 THE COURT:

Compound.

567 MR. CLARKE:

Is it correct that it is your belief that PCR is acceptable to use in medical diagnostics or medical uses--

568 MR. SCHECK:

Objection. I'm sorry. Finish the question. I'm sorry.

569 MR. CLARKE:

I will start it again if I may. Thank you.

570 MR. CLARKE:

Is it correct, Dr. Gerdes, that your opinion about the scientific acceptance in terms of why you believe it is appropriate to use, and I'm referring to PCR in medical diagnostic uses, is based on the number of genetic markers you can look at? Is that one reason.

571 MR. SCHECK:

My objection here is specifically which applications to PCR. I think it is vague.

572 THE COURT:

It is vague. Sustained.

573 MR. CLARKE:

When you feel--and you offered the opinion that the use of PCR in medical uses is appropriate, correct?

574 DR. GERDES:

It is.

575 MR. CLARKE:

What uses are you referring to?

576 DR. GERDES:

There are a variety of specific applications. The ones that we use in my lab are the detection of infectious agents such as cytomegalovirus or chlymadia and the typing of HLA for the purpose of bone marrow transplant where you know you were working with a sample from a given individual.

577 MR. CLARKE:

Okay. Let's start with CMV. That is a virus, correct?

578 DR. GERDES:

That's correct.

579 MR. CLARKE:

Can we use the term CMV as a shorthand manner?

580 DR. GERDES:

Yes.

581 MR. CLARKE:

When you attempt to diagnose--and that is what you do, use PCR to attempt to diagnose the presence of CMV?

582 DR. GERDES:

That's correct.

583 MR. CLARKE:

--do you look at just one genetic marker?

584 DR. GERDES:

Yes, we do.

585 MR. CLARKE:

When you test for the disease--is it proper to call chlymadia a disease?

586 DR. GERDES:

Yes.

587 MR. CLARKE:

--how many markers do you look at for that particular item?

588 DR. GERDES:

The kit that is--includes one specific marker that you look for.

589 MR. CLARKE:

Is there any significance to looking at multiple markers in an individual sample in the medical arena?

590 DR. GERDES:

Under certain circumstances I think that would be a good idea.

591 MR. CLARKE:

As far as criminal cases, do you feel it is a good idea to look at more than one marker?

592 DR. GERDES:

It gives you additional information.

593 MR. CLARKE:

And the more information that is available, the better, right?

594 DR. GERDES:

Correct.

595 MR. CLARKE:

As far as PCR, is it correct that there are thousands of U.S. laboratories using PCR?

596 DR. GERDES:

I think that is a fair statement.

597 MR. CLARKE:

Life and death decisions are made based on the results of PCR typing everyday, correct?

598 DR. GERDES:

Yes.

599 MR. CLARKE:

PCR is used to find out, for instance, if food or dairy products have organisms in them that shouldn't be there, right?

600 DR. GERDES:

I am not aware of that. Certainly it is used to diagnose whether or not fetuses have diseases?

601 DR. GERDES:

Yes.

602 MR. CLARKE:

It is used to diagnose many, if not most, of the same diseases that RFLP typing is used today or was previously used; is that right?

603 DR. GERDES:

That is true.

604 MR. CLARKE:

Incidentally, as far as disease diagnosis and--you have some experience in that area, correct?

605 DR. GERDES:

That's correct.

606 MR. CLARKE:

As far as the use of PCR, are the results of those diagnoses always clear-cut?

607 DR. GERDES:

Not always.

608 MR. CLARKE:

In other words, it isn't always either there a real clear answer that the person has it or there is a real clear answer that the person doesn't, right?

609 DR. GERDES:

That's correct.

610 MR. CLARKE:

And there are some diseases where there is a gray area in between those two; isn't that right?

611 DR. GERDES:

That's true.

612 MR. CLARKE:

And the results of those uses of PCR are utilized by doctors to counsel people on whether they have a disease, correct?

613 DR. GERDES:

In those specific--this situation that you have set up they would obviously look at other clinical factors to try and make a determination. That would be one aspect of their decision in terms of their diagnosis is.

614 MR. CLARKE:

Isn't it true that in many of those instances, doctor, you have to counsel patients when they have to tell them you may or may not have this disease?

615 DR. GERDES:

That's true.

616 MR. CLARKE:

Is that a significant decision, in your viewpoint, as to what the patient decides?

617 DR. GERDES:

Yes.

618 MR. CLARKE:

Now, this technology involving PCR has been used to identify American war dead, correct?

619 DR. GERDES:

Yes.

620 MR. CLARKE:

Including in the Persian Gulf war?

621 DR. GERDES:

I am familiar with that, yes.

622 MR. CLARKE:

Isn't it true Cellmark was the laboratory that performed this testing for the United States government?

623 DR. GERDES:

I believe it was.

624 MR. SCHECK:

Your Honor, I--if we go further along these lines I think it is cumulative and 352 objection.

625 THE COURT:

Overruled. Overruled.

626 MR. CLARKE:

Is it correct, Dr. Gerdes, that there are over 14,000 publications on the use of PCR, scientific publications?

627 DR. GERDES:

That's true.

628 MR. CLARKE:

PCR is used by every molecular biology lab that you are aware of, correct?

629 DR. GERDES:

Absolutely.

630 MR. CLARKE:

Is it your opinion that there is no self-respecting molecular biologist alive who doesn't use PCR right now?

KEY QUOTE
631 DR. GERDES:

I think that is a fair statement.

632 MR. CLARKE:

Now, PCR in your own lab at IAD has been used since what year?

633 DR. GERDES:

We started using it when I arrived at IAD, 1988 or shortly thereafter.

634 MR. CLARKE:

That was--well, let me rephrase that. Already in place in your laboratory were RFLP techniques, correct?

635 DR. GERDES:

No. Actually I was hired to set those up.

636 MR. CLARKE:

So when you came into the lab you used both RFLP typing and PCR typing?

637 DR. GERDES:

That's correct.

638 MR. CLARKE:

Your laboratory then has used PCR either in a development phase or in an actual case work phase then for about seven years; is that fair?

639 DR. GERDES:

That is fair.

640 MR. CLARKE:

Is it correct that most of the current work that your laboratory performed is done by PCR?

641 DR. GERDES:

No, that is not true.

642 MR. CLARKE:

What percentage would you estimate of the case work at your--well, let's broaden it out. What percentage would you estimate of all the work conducted in your laboratory is done by PCR?

643 DR. GERDES:

Approximately thirty percent.

644 MR. CLARKE:

Does that include case work?

645 DR. GERDES:

Yes.

646 MR. CLARKE:

Where you report out results following the use of PCR in the areas of, for instance, whether a person has CMV?

647 DR. GERDES:

That's correct. It wouldn't be thirty percent of the CMV diagnosis. The problem is certain techniques use PCR and we use them for that, and other techniques use other scientific methods and we do a wide range of different tests.

648 MR. CLARKE:

Now, you routinely use PCR for this virus infection?

649 DR. GERDES:

For CMV we do, yes.

650 MR. CLARKE:

That is a viral infection, yes?

651 DR. GERDES:

Correct.

652 MR. CLARKE:

What do you actually analyze? What do you receive in the lab to look at?

653 DR. GERDES:

We receive a blood specimen.

654 MR. CLARKE:

Is that a difficult diagnosis?

655 DR. GERDES:

It is a difficult diagnosis in terms of traditional methods. I feel that PCR has made it--our quantitative PCR, once it was adapted to a quantitative method, has made that diagnosis more reliable.

656 MR. CLARKE:

As far as this virus use of PCR and--let me rephrase that if might. In your views of PCR to diagnose this virus, are you looking for levels of virus as opposed to whether a particular allele is present?

657 DR. GERDES:

Yes.

658 MR. CLARKE:

So you are looking for a range and make a decision within that range whether or not the virus is there?

659 DR. GERDES:

No. 1, is it there, and no. 2, how much is there.

660 MR. CLARKE:

Do you have to make any subjective interpretations about the levels as far as making a conclusion whether the person has it?

661 DR. GERDES:

It is an objective conclusion based on a standard curve that we have derived and the methodology we have derived so that we can precisely measure levels of the DNA from CMV.

662 MR. CLARKE:

Incidentally--and I'm not sure the term came up yesterday, but it may have, but one of the instruments used in PCR frequently is called a thermalcycler; is that right?

663 DR. GERDES:

That's correct.

664 MR. CLARKE:

Your laboratory, I assume, has one or more than one thermalcyclers?

665 DR. GERDES:

Yes.

666 MR. CLARKE:

Who manufacturers that product?

667 DR. GERDES:

Perkin Elmer.

668 MR. CLARKE:

We have also--and you are aware of testimony, are you not, about a corporation referred to as Roche?

669 DR. GERDES:

Correct.

670 MR. CLARKE:

And in fact Roche manufacturers the typing kit used in this case for DQ-Alpha, polymarker and the other PCR marker in this case, D1S80?

671 DR. GERDES:

That's correct.

672 MR. CLARKE:

Is there any relationship between Perkin Elmer and Roche?

673 DR. GERDES:

Yes.

674 MR. CLARKE:

What is that?

675 DR. GERDES:

I don't know the details, but basically Roche holds the licensing--the patent, if you will, for the PCR process and they have negotiated a marketing agreement through Perkin Elmer for Perkin Elmer to market the kits that Roche develops.

676 MR. CLARKE:

So your laboratory bought this thermalcycler from Perkin Elmer who is related to Roche, correct?

677 DR. GERDES:

Correct.

678 MR. CLARKE:

In your opinion is that thermalcycler that you use reliable?

679 DR. GERDES:

That is the best thermalcycler on the market in my opinion.

680 MR. CLARKE:

Does it have a model number?

681 DR. GERDES:

The one we use is called a 9600. There are other models, but that is the one that we have.

682 MR. CLARKE:

How many samples can you place in that thermalcycler at one time?

683 DR. GERDES:

It has the capability of 96.

684 MR. CLARKE:

Incidentally, when your--well, let me rephrase it. Your technicians use the thermalcycler, correct?

685 DR. GERDES:

That's correct.

686 MR. CLARKE:

They place tubes in the various wells in the thermalcycler?

687 DR. GERDES:

That's correct.

688 MR. CLARKE:

Do they change gloves between every sample that they touch when they put in the samples?

689 DR. GERDES:

They change gloves between samples when they prepare those tubes.

690 MR. CLARKE:

That is not what I'm asking.

691 DR. GERDES:

The tubes are in strips so that after you have placed them--I mean, once you have headed the tube, then you put it in the thermalcycler, you are carrying like a rack of tubes that are placed in there.

692 MR. CLARKE:

When they place tubes, individual tubes into the thermalcycler, do they change gloves between each tube?

693 DR. GERDES:

Not when they are placing it in the thermalcycler.

694 MR. CLARKE:

What is the most number of samples that have been run in that cycler at one time?

695 DR. GERDES:

It has the capability of 96.

696 MR. CLARKE:

What is the most that have been run in your laboratory at one time?

697 DR. GERDES:

In my laboratory?

698 MR. CLARKE:

Correct.

699 DR. GERDES:

I think there have been a number of occasions where we have run all 96.

700 MR. CLARKE:

And that is the most that it will hold, correct?

701 DR. GERDES:

Correct. That wasn't on case work, however.

702 MR. CLARKE:

Do you know what type of thermalcycler the Los Angeles Police Department uses?

703 DR. GERDES:

They have the 9600 as well.

704 MR. CLARKE:

Same exact thermalcycler that you have in terms of the model and its capabilities?

705 DR. GERDES:

Correct.

706 MR. CLARKE:

What about the Department of Justice?

707 DR. GERDES:

I think they have the 480, if I remember correctly, which is the model that preceded the 9600.

708 MR. CLARKE:

Is there anything in your opinion about the model 480 that is unreliable, as opposed to the 9600?

709 DR. GERDES:

No.

710 MR. CLARKE:

What about Cellmark?

711 DR. GERDES:

They also--I believe they also have the 480.

712 MR. CLARKE:

Incidentally, you also described bone marrow transplant tests that are performed in your lab, correct?

713 DR. GERDES:

Correct.

714 MR. CLARKE:

Do those use PCR in any manner?

715 DR. GERDES:

Yes, they do.

716 MR. CLARKE:

And you've also described this national registry, correct?

717 DR. GERDES:

Correct.

718 MR. CLARKE:

The national registry requires, for purposes of inclusion in this registry, PCR typing be done, correct?

719 DR. GERDES:

That's correct.

720 MR. CLARKE:

And in particular they require that a particular genetic marker region be used to conduct that typing, correct?

721 DR. GERDES:

That's correct.

722 MR. CLARKE:

And that is the HLA region?

723 DR. GERDES:

It is not the same--it is not DQ-Alpha. It is another HLA gene. It is called DR-beta.

724 MR. CLARKE:

Okay. My question was, is that part of the HLA gene?

725 DR. GERDES:

It is part of that complex, but there are more than one gene in that complex so it is not the same gene, but it is in the same area.

726 MR. CLARKE:

Is it correct then that the DQ-Alpha gene is in the same area as the exact gene that you test in your laboratory for bone marrow typing?

727 DR. GERDES:

Yes.

728 MR. CLARKE:

You have mentioned DQ-Alpha and I believe DQ-beta yesterday as well?

729 DR. GERDES:

Yes.

730 MR. CLARKE:

Are they related?

731 DR. GERDES:

Yes, they are.

732 MR. CLARKE:

And I think you may have mentioned DR as well. Are these just different particular genes that are located close to one another?

733 DR. GERDES:

Yes.

734 MR. CLARKE:

Do you test the DQ-beta gene in your lab?

735 DR. GERDES:

Yes.

736 MR. CLARKE:

Do you test the DR gene in your lab?

737 DR. GERDES:

Yes.

738 MR. CLARKE:

Isn't it correct that by testing more than one gene you increase the likelihood of your finding important information in your work in your laboratory?

739 DR. GERDES:

Yes.

740 MR. CLARKE:

Do you use PCR for any other purposes other than bone marrow transplant information and looking for CMV?

741 DR. GERDES:

We are very close to using it for the purpose of looking at donors, as I explained the other day, in terms of looking for infectious agents in donors.

742 MR. CLARKE:

Incidentally, as far as the actual process of conducting PCR typing amplification and then typing that process in a broad sense is the same whether it is medical or forensic, correct?

743 DR. GERDES:

The basic set-up of the method in terms of how it is set up, that is the same, yes.

744 MR. CLARKE:

In your lab do you ever test degraded samples?

745 DR. GERDES:

No.

746 MR. CLARKE:

Is it your testimony that you have never conducted any case work analysis on a degraded sample?

747 DR. GERDES:

Yes.

748 MR. CLARKE:

As far as the use of PCR in other laboratories, and let's go outside criminal cases and forensics, isn't it correct that PCR is used on degraded samples?

749 DR. GERDES:

It is being used for that.

750 MR. CLARKE:

What are some samples of that?

751 DR. GERDES:

In the forensic community?

752 MR. CLARKE:

No, outside forensics.

753 DR. GERDES:

I'm sorry, I misunderstood your question then. I'm having a hard time thinking of one.

754 MR. CLARKE:

Okay. Are you aware of the use of PCR, for instance, in the study of endangered animals.

755 MR. SCHECK:

Your Honor, I think that this is irrelevant.

756 THE COURT:

Overruled.

757 DR. GERDES:

No, I'm not.

758 MR. CLARKE:

You have never heard of it?

759 DR. GERDES:

No.

760 MR. CLARKE:

Are you aware of the use of PCR--well, you are aware of the use of PCR to identify remains of war dead, correct?

761 MR. SCHECK:

Objection, asked and answered.

762 THE COURT:

It is in a different context, counsel.

763 DR. GERDES:

I am aware that that is done.

764 THE COURT:

Specifically on degraded samples, correct?

765 MR. CLARKE:

Correct.

766 THE COURT:

Proceed.

767 MR. CLARKE:

You are aware that it is done on war dead?

768 THE COURT:

We have established that.

769 MR. CLARKE:

Isn't it correct that PCR was used on, for instance, soldiers who were brutally killed in the Persian Gulf war?

770 MR. SCHECK:

Your Honor, your Honor--

771 THE COURT:

Sustained. We have already asked that.

772 MR. CLARKE:

All right. Isn't it true that with regard to that usage that those are bodies have been violently killed out in the desert?

773 MR. SCHECK:

Objection to this line at this point, your Honor.

774 THE COURT:

Overruled. This is in the context of degraded samples?

775 MR. CLARKE:

Yes.

776 THE COURT:

Proceed.

777 DR. GERDES:

Yes, that's true.

778 MR. CLARKE:

Would you consider a body that has been out in the desert for hours or days degraded?

779 DR. GERDES:

Yes.

780 MR. CLARKE:

PCR has been used to type mummies; isn't that correct?

781 DR. GERDES:

Yes.

782 MR. CLARKE:

Is that a degraded sample?

783 DR. GERDES:

I'm sure it is.

784 MR. CLARKE:

You described, for instance, the use of this--I'm sorry, let me rephrase that question. Your work in your laboratory is mainly with infectious materials as far as PCR, right?

785 DR. GERDES:

Well, we do both infectious materials as well as HLA typing and those I don't think would be considered--the registry individuals are not considered to be infectious. Of course you handle everything as though it is potentially infectious.

786 MR. CLARKE:

Is PCR used to, for instance, type the presence of certain diseases in samples that have been obtained during a biopsy, for instance, a portion removed from a person's body?

787 DR. GERDES:

Occasionally it can be done for that.

788 MR. CLARKE:

Is that a sterile sample?

789 DR. GERDES:

It is collected sterilly in an operating room, for instance.

790 MR. CLARKE:

Okay. But is the sample sterile, or as you have used the term, was it aseptic?

791 DR. GERDES:

Well, certainly tissue is sterile when you collect it, unless it is infected.

792 MR. CLARKE:

And if it is infected it isn't sterile is it?

793 DR. GERDES:

No.

794 MR. CLARKE:

And in fact those samples are frequently sent out for PCR typing to determine whether or not there is a disease or infection there, right?

795 DR. GERDES:

Yes, but what you are looking for there is the infection.

796 MR. CLARKE:

Are you aware of the use of PCR on samples that have been preserved in paraffin?

797 DR. GERDES:

PCR has been used for that.

798 MR. CLARKE:

What is a sample preserved in paraffin? Could you describe that?

799 DR. GERDES:

In the normal process of doing what is called pathology, tissue samples are frequently imbedded with this wax or paraffin that allows you to cut sections and put them on a microscope slide and see the morphology, the architecture of the cells, and pathologists then can look at that and determine disease states.

800 MR. CLARKE:

Are those samples ever degraded?

801 DR. GERDES:

I wouldn't consider it degraded. They are basically fixed and then imbedded with this paraffin and the process itself results in cross-linking of the protein in the sample to the DNA so that it is very difficult to extract the DNA after that.

802 MR. CLARKE:

Well, you say you wouldn't consider it degraded. These can be samples that are years old, can't they?

803 DR. GERDES:

Yes, but they are fixed and imbedded in paraffin. That pretty much preserves them.

804 MR. CLARKE:

Well, is it your testimony that those samples that are preserved in paraffin the DNA is in exactly as good a form as it was when it was removed?

805 DR. GERDES:

Yes, it is.

806 MR. CLARKE:

So there is no degradation in those samples that may be years old period?

807 DR. GERDES:

There is no degradation in that section. When you try and extract the DNA, because of the cross-linkage, you get DNA that has been--is in smaller pieces, but it is not due to any kind of contamination with bacteria that eat it, nothing like that.

808 MR. CLARKE:

That never happens?

809 DR. GERDES:

Not in those sections.

810 MR. CLARKE:

There is a fairly common term known as a pap smear; is that right?

811 DR. GERDES:

Yes.

812 MR. CLARKE:

And that is taken from women as part of an analysis, correct, or for purposes of an analysis?

813 DR. GERDES:

Yes.

814 MR. CLARKE:

In your opinion is that an example of a sample that is sterile?

815 DR. GERDES:

No, it is not sterile.

816 MR. CLARKE:

That sample, while not sterile, is still tested to determine whether or not there may be a disease present in that individual?

817 DR. GERDES:

What you are misunderstanding is you are testing for an infectious agent in that you are not testing for a specific human gene, so you are looking for the contaminant in this case.

818 MR. CLARKE:

Well--

819 DR. GERDES:

You are looking for the bacterial contaminant.

820 MR. CLARKE:

Are there any other contaminants that might be present in that sample?

821 DR. GERDES:

There are a variety of things I'm sure, but--

822 MR. CLARKE:

The presence of those variety of contaminants doesn't stop that sample from being tested for the disease that is being looked for, correct?

823 DR. GERDES:

The PCR is very precise and you design it so that you are only looking for the specific microorganism you are interested in, such as chlymadia which we do in our lab. That particular PCR will not detect herpes or a variety of other things that perhaps might be in that sample. It is designed to very specifically look for only the chlymadia organism.

824 MR. CLARKE:

So in other words, one of the important components or parts of PCR typing is designing it to look for what the scientist is trying to find?

825 DR. GERDES:

That is true, and if you have a system that looks just simply for human DNA, that is where the problem comes in.

826 MR. CLARKE:

Well, objection, move to strike the last portion of the answer, your Honor.

827 THE COURT:

Overruled. Overruled.

828 MR. CLARKE:

As far as known samples in your lab, do you use any cards? By "Cards" I mean a card that a portion of a liquid blood sample would be poured onto so that it can be used in that form?

829 DR. GERDES:

Never.

830 MR. CLARKE:

Are you aware of that in the--that is its use in the medical diagnostic area?

831 DR. GERDES:

I also believe there are some--some areas where they are doing that, looking for infections perhaps--I have read papers on hepatitis, for instance, where they will do that. But again, you are misunderstanding. In that case you are looking for the hepatitis organism so you have a specific mechanism--

832 MR. CLARKE:

I'm sorry, your Honor. Objection, move to strike the last portion.

833 THE COURT:

Overruled.

834 MR. CLARKE:

As far as DNA, DNA is something that basically degrades, correct?

835 DR. GERDES:

It can.

836 MR. CLARKE:

And it can degrade to the point where there is no activity left or the DNA perishes, for lack of a better term?

837 DR. GERDES:

Well, degradation just simply means that due to whatever reason--the DNA is a long stringy molecule that starts getting chopped up into smaller and smaller pieces. Ultimately you end up with such small pieces that when you attempt to analyze it you can't.

838 MR. CLARKE:

Focusing on samples--and let's just take a bloodstain, for instance, that is outside. Something on the outside can be exposed to sunlight, yes?

839 DR. GERDES:

Yes.

840 MR. CLARKE:

Sunlight doesn't change a DNA type, does it?

841 DR. GERDES:

No.

842 MR. CLARKE:

Rain doesn't change a DNA type, does it?

843 DR. GERDES:

No.

844 MR. CLARKE:

Soil doesn't change a type?

845 DR. GERDES:

No.

846 MR. CLARKE:

Leaves don't change a DNA type?

Temperature

tense

Key Quotes (5)

Dr. John Gerdes
I've been very consistent. This technology has some--some risk with it and I think it is important for the jury to know about those so that they can make a reasonable decision as to how much weight to put on this kind of evidence, and yes, I've always testified to that fact.
Gerdes inadvertently confirms Clarke's point that his testimony is a rehearsed, consistent advocacy position rather than case-specific scientific analysis.
Dr. John Gerdes
I guess not.
Forced concession that the LAPD extraction room and product gel electrophoresis room are NOT the same area — directly contradicting his testimony from the previous day.
Dr. John Gerdes
None of them.
Gerdes admits he has zero publications on forensic stain analysis, PCR contamination in forensics, or the unsuitability of PCR for forensics — devastating to his credibility as a forensic expert.
George Clarke
Is it your opinion that there is no self-respecting molecular biologist alive who doesn't use PCR right now?
Clarke uses Gerdes' own words to establish the universal scientific acceptance of PCR, undermining the defense's central DNA contamination argument.
George Clarke
Is he present in the audience? ... Where is he?
Clarke dramatically draws the jury's attention to PCR inventor Dr. Kary Mullis sitting in the courtroom — a theatrical moment signaling the defense intended to call him.

Evidence (2)

People's 259
Bronco results board showing DNA typing results (DQ-Alpha and D1S80) for items from the Bronco, including items 30 and 31 (center console stains)
discussed; Clarke used to establish results did not exclude Simpson or Goldman
People's 281
Photo board showing photographs of Piper Tech lab areas, including extraction room and product gel electrophoresis room
discussed; Clarke used to force Gerdes to concede the two lab areas are separate rooms, not 'the same area' as he testified the day before

Notable Exchanges (5)

George ClarkeDr. John Gerdes
Clarke walked Gerdes through the physical layout of both the DOJ lab and LAPD Piper Tech using the photo board, forcing him to admit step by step that the extraction room and product gel electrophoresis room are separate secured rooms — contradicting his prior day testimony that amplified DNA was 'brought back to the same area.'
strategic
George ClarkeDr. John Gerdes
Clarke systematically catalogued Gerdes' lack of forensic credentials: no forensic training, no forensic classes, no forensic publications, no membership in forensic professional organizations, no attendance at forensic meetings, no personal experience collecting physical evidence, no validation studies, and no experiments in the forensic area.
devastating
George ClarkeDr. John Gerdes
Clarke examined Gerdes' financial arrangement, establishing the lab billed approximately $30,000 for this case, and that the billing rate of $100/hour was roughly double Gerdes' actual salary — suggesting the lab profits significantly from his expert witness work.
strategic
George ClarkeDr. John Gerdes
Clarke pressed Gerdes on the contradiction between accepting PCR as reliable enough for life-and-death medical diagnoses (CMV, chlamydia, bone marrow transplant typing) while condemning it for forensic use — and elicited the damaging concession that in medical uses, sometimes PCR is tested with only a single genetic marker.
revealing
George ClarkeDr. John Gerdes
Clarke established that every one of Gerdes' 23 prior testimonies was for a criminal defendant, and that the one time he was retained by a prosecutor it was to help keep DNA evidence out of court.
strategic

Light Moments (3)

Lance A. Ito
Judge Ito quipped 'I recollect we almost killed a juror the last time' when directing staff to handle the easel, referencing a prior incident — noting it was why juror no. 1 had been moved.
George Clarke
When Clarke asked about Kary Mullis — the Nobel Prize-winning inventor of PCR — and whether he was present in the audience, Gerdes confirmed he was and pointed him out. Ito helpfully added 'Between Mr. Uelmen and next to Mr. Douglas... And behind Mr. Scheck.'
Dr. John Gerdes
Gerdes asked Clarke to tell him what $100/hour works out to annually so he could do the math, leading to an awkward impromptu arithmetic session in open court.

Credibility Attacks (4)

⚔ Dr. John Gerdes
Prior inconsistent statement
Clarke used the photo board (exhibit 281) to show that Gerdes' prior-day testimony — that amplified DNA at LAPD was brought back to 'the same area' — was factually incorrect, as the extraction room and product gel electrophoresis room are separate secured rooms separated by a hallway.
⚔ Dr. John Gerdes
Bias / one-sided expert
Clarke established that every retained engagement but one was for a criminal defendant, he has always testified against PCR reliability, and his laboratory earns substantially more billing him out at $100/hour than he earns in salary — painting him as a professional defense-side advocate.
⚔ Dr. John Gerdes
Lack of qualifications
Clarke catalogued the complete absence of forensic-specific credentials: no forensic training, classes, publications, professional memberships, casework, validation studies, or experiments in the forensic domain.
⚔ Dr. John Gerdes
Internal inconsistency
Clarke exploited the tension between Gerdes' condemnation of PCR for forensics and his lab's routine use of PCR for medical diagnostics — including cases using only a single genetic marker — to suggest his forensic objections were advocacy rather than principled science.

Witness Demeanor

(Witness complies.) — steps down from stand to view exhibit board
Gerdes repeatedly qualifies answers with 'I guess,' 'I believe,' 'I don't recall exactly' when pushed on specifics
Gerdes becomes defensive when his prior-day testimony about 'same area' is challenged, attempting to introduce new details about autoclaving before being cut off by a sustained objection

Objections

16 objections (6 sustained, 10 overruled)
Proceeding 7935 • 846 utterances • Defense witness
Criminal Trial
Department 103
⚖️ Start
📂 AUG 3, 1995 📄 Cross-examination of Dr. John
AUG 3, 1995 KRT DvH TD