Sidebar: fingernail scrapings and DQ-alpha

📄 Sidebar: fingernail scrapings and DQ-alpha — Thursday, May 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\11\SIDEBAR-FINGERNAIL-SCRAPINGS-A.DOC

TRIAL

▲ Day 72 of 167

◀ Direct examination of Dr. Robin Cotton (morning, part 1) Direct examination of Dr. Robin Cotton (morning, part 2) ▶

Date: Thursday, May 11, 1995 • Utterances: 25

Defense attorney Peter Neufeld raised two objections at sidebar: first, that insufficient chain-of-custody foundation had been established for fingernail scrapings sent from DOJ to Cellmark (rather than directly from LAPD), and second, that a board displayed to the jury showed a 'zero control' notation on a DQ-Alpha typing result that the court had already ruled inconclusive. Judge Ito overruled both objections — the first subject to a motion to strike pending the next witness's testimony, and the second on 'no harm, no foul' grounds.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

All right. We are over at the side bar.

# 3 MR. NEUFELD:

At least two of us are.

# 4 THE COURT:

Mr. Clarke.

# 5 MR. CLARKE:

Yes.

# 6 MR. NEUFELD:

My--

# 7 THE COURT:

Mr. Neufeld, it is your objection.

# 8 MR. NEUFELD:

Yeah. Correct me if I am mistaken, but aren't the fingernail scrapings, were they sent directly to Cellmark by LAPD or were extraction tubes at least as to some of the fingernail scrapings and fingernails sent from DOJ to Cellmark?

# 9 MR. CLARKE:

The answer is the latter and Mr. Sims, the next witness, is going to establish that foundation.

KEY QUOTE

# 10 THE COURT:

All right.

# 11 MR. NEUFELD:

Objection. My objection is to foundation, that clearly, at least through this witness, they cannot establish the necessary foundation or chain of custody and there has not even been any chain of custody with respect to this from Mr. Matheson. And I would object to any results coming in for those items which no foundation has been established.

KEY QUOTE

# 12 THE COURT:

I will overrule the objection subject to a motion to strike.

# 13 MR. COCHRAN:

One second, your Honor.

# 14 (Discussion held off the record between Defense counsel.)

# 15 (Discussion held off the record between the Deputy District Attorneys.)

# 16 MR. NEUFELD:

The other matter which I wanted to bring to the Court's attention was when the witness testified that there was no control dot on the DQ-Alpha typing, and therefore it was inconclusive, she wouldn't call it, give her own protocol, and you sustained my objection to that to prevent her from testifying to it, what he put up on the board when he pulled away the card --

# 17 THE COURT:

Mr. Neufeld, here is the problem. You have had extensive opportunity to look at that board previously and we had a long discussion about it. You've had your opportunity to object to it. To interpose an objection now is a little late, but on this part I think it is no harm, no foul, because the board does say "control dots" and it does indicate--does factually relate what occurred there. And the witness' testimony was that it was an inconclusive result, so the objection is overruled.

KEY QUOTE

# 18 MR. NEUFELD:

But do the boards say "o control" or "no control"?

# 19 THE COURT:

Zero.

# 20 MR. CLARKE:

Zero. While we are here, it is very crowded over there, but I would normally agree that is fair game, but they have a copy of that board. That is why I don't think it is necessary that there be so many attorneys over there. If there was no copy, I don't agree.

# 21 MR. NEUFELD:

I don't think there is any reason to have a board of every Bundy stain. They can move this entire board over there, your Honor, and everybody can see it.

# 22 THE COURT:

Counsel, when you present your part of the case, you get to put them any where you want. All right?

# 23 MR. NEUFELD:

All right.

# 24 THE COURT:

Let's proceed.

# 25 MR. NEUFELD:

All right.

Temperature

procedural

Key Quotes (3)

Peter Neufeld

Objection. My objection is to foundation, that clearly, at least through this witness, they cannot establish the necessary foundation or chain of custody and there has not even been any chain of custody with respect to this from Mr. Matheson.

Neufeld challenges the admissibility of fingernail scraping DNA results on chain-of-custody grounds, targeting a gap in the evidence trail between DOJ and Cellmark.

Lance A. Ito

Mr. Neufeld, here is the problem. You have had extensive opportunity to look at that board previously and we had a long discussion about it. You've had your opportunity to object to it. To interpose an objection now is a little late, but on this part I think it is no harm, no foul.

Ito signals impatience with the timing of Neufeld's DQ-Alpha board objection while still addressing its merits.

George Clarke

The answer is the latter and Mr. Sims, the next witness, is going to establish that foundation.

Prosecution acknowledges the chain-of-custody gap but promises the next witness will cure it, revealing a sequencing issue in how they built their evidentiary foundation.

Evidence (2)

Informal

Fingernail scrapings sent from DOJ to Cellmark for DNA testing

challenged on foundation/chain-of-custody grounds

Informal

Evidence board showing DQ-Alpha typing results with 'zero control' notation for Bundy stains

challenged; court ruled no harm no foul as board accurately reflected inconclusive result

Notable Exchanges (2)

Peter Neufeld•Lance A. Ito

Neufeld pushes on the DQ-Alpha board language, asking whether it says 'o control' or 'no control'; Ito clarifies it says 'zero,' effectively ending the dispute.

strategic

Peter Neufeld•George Clarke

Brief dispute over whether so many attorneys need to crowd around the evidence board, with Neufeld suggesting the board simply be moved for all to see.

procedural

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 6018 • 25 utterances

Criminal Trial

Department 103