📄 Cross-examination of Gary Sims (part 3) — Thursday, May 18, 1995
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▲ Day 77 of 167

Cross-examination of Gary Sims (part 3)

Witness: Gary Sims
Examiner: Barry Scheck
Called by: Prosecution • Date: Thursday, May 18, 1995 • Utterances: 810
Barry Scheck methodically cross-examined DOJ criminalist Gary Sims, systematically getting him to affirm best-practice lab protocols — changing paper between samples, cleaning instruments through a multi-step process, washing or changing gloves, proper ink notation — while implicitly establishing that LAPD criminalists failed to follow these standards. Scheck also elicited that LAPD bindles bore pencil initials (not ink as protocol requires), lacked Andrea Mazzola's initials, and that processing 21 DNA samples properly required approximately 7 working days — not one.
1 THE COURT:

Thank you, ladies and gentlemen. Please be seated. Mr. Sims. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Mr. Scheck, you may continue with your cross-examination.

2 MR. SCHECK:

Thank you, your Honor.

3 MR. SCHECK:

Mr. Sims, at the break you were kind enough to review your notes with me concerning those--the 21 samples. Do you recall that?

4 MR. SIMS:

Yes.

5 MR. SCHECK:

All right. And you indicated that the maximum number of samples that you processed from the initial cutting of the swatches to the reporting of results in one run was 21 samples, correct?

6 MR. SIMS:

Yes, and that would include the quality control sample, the extraction blank and then substrate controls intervening the stains.

7 MR. SCHECK:

Right. Now, at the break you and I reviewed your notes as to how long--how long it took you to do that procedure with the 21 samples from beginning to end?

8 MR. SIMS:

Yes.

9 MR. SCHECK:

And umm, I think you began that on the 8th of September?

10 MR. SIMS:

Yes.

11 MR. SCHECK:

Half day?

12 MR. SIMS:

Yes, that is what we figured.

13 MR. SCHECK:

And then September 9th you said it took you all day?

14 MR. SIMS:

Yes.

15 MR. SCHECK:

And then September 14th, another half day?

16 MR. SIMS:

Yes.

17 MR. SCHECK:

And September 15th, at least a half day, maybe three-quarters of a day?

18 MR. SIMS:

Something like that, yes.

19 MR. SCHECK:

Then September 20th a half day?

20 MR. SIMS:

Yes.

21 MR. SCHECK:

September 21st, a day?

22 MR. SIMS:

Yes.

23 MR. SCHECK:

Altogether, between yourself and Miss Montgomery, who participated in the process, how many days did it take you to process those samples from beginning to end?

24 MR. SIMS:

From the point of--of sampling to having a typing result on DQ-Alpha?

25 MR. SCHECK:

Yeah.

26 MR. SIMS:

That was about 7 working days.

27 MR. SCHECK:

7 working days?

28 MR. SIMS:

Approximately.

29 MR. SCHECK:

Can you imagine being able to process those samples, 21 samples from beginning to end, in one day?

30 MR. HARMON:

Objection, calls for speculation, imagination.

31 THE COURT:

Sustained. Sustained.

32 MR. HARMON:

Thank you.

33 MR. SCHECK:

Now, let's turn to--what is this?

34 (Discussion held off the record between the Deputy District Attorneys.)
35 MR. SCHECK:

Umm--

36 (Discussion held off the record between Defense counsel.)
37 MR. SCHECK:

Now, the--there are other kinds of precautions that one takes in terms of processing samples for purposes of forensic DNA typing, aside from the ones we've previously reviewed, in terms of which kind of samples one would handle at different times and different places?

38 MR. SIMS:

Yes.

39 MR. SCHECK:

All right. Now, let's start first with aerosols.

40 MR. SIMS:

Okay.

41 MR. SCHECK:

Now, one kind of aerosol we have already discussed is the kind of spray that can occur when one opens up a tube?

42 MR. SIMS:

Yes. If one has not spun it down, that is a concern because you can get liquid accumulating under the top of the cap.

43 MR. SCHECK:

Uh-huh. And this would apply also to one of these lavender-topped tubes that contains reference samples?

44 MR. SIMS:

Well, they are under vacuum, so yes, that is a concern when you open one of those for the first time.

45 MR. SCHECK:

And when you open one of those for the first time, one has to be quite careful about the aerosol of whole blood from the reference tube?

46 MR. SIMS:

Yes.

47 MR. SCHECK:

And in pouring that out, let's say, onto one of these paper cards, one has to take great care?

48 MR. SIMS:

Well, one has to be careful about what else is in the laboratory, yes.

49 MR. SCHECK:

Now, aside from aerosols from liquids, can one have aerosols from dried biological particles?

50 MR. SIMS:

I don't know if they are possibly called aerosols, but you can have, for example, powdered blood, something like that. You have to be concerned about that.

51 MR. SCHECK:

Powdered blood would be small particles of dried blood?

52 MR. SIMS:

Yes.

53 MR. SCHECK:

Now, if one were to take a test-tube that contained blood swatches that had dried on the inside of the test-tube--

54 MR. SIMS:

Okay.

55 MR. SCHECK:

--and then one takes a pipette, holding the test-tube up and scrapes the bloodstains out of the test-tube with the pipette--

56 THE COURT:

Swatches?

57 MR. SCHECK:

I'm sorry?

58 THE COURT:

The swatches.

59 MR. SCHECK:

Swatches?

60 MR. SIMS:

Okay.

61 MR. SCHECK:

Out of the pipette?

62 MR. SIMS:

Okay.

63 MR. SCHECK:

Are you with me?

64 MR. SIMS:

Yes.

65 MR. SCHECK:

Could that not cause an aerosol of powdered blood to fall on the surface over which the test-tube was held?

66 MR. SIMS:

Well, in my experience, with that kind of a sample you usually see some flakes. It is not as fine a powder but you see more of like a flake, flaky effect.

67 MR. SCHECK:

You could see a flake, but in terms of the dried swatch, could be an aerosol?

68 MR. SIMS:

Again, I'm not sure that is the right term, but if you are talking about airborne particles, yes.

69 MR. SCHECK:

Airborne particles?

70 MR. SIMS:

Yes.

71 MR. SCHECK:

And the pipette itself is a flexible instrument?

72 MR. SIMS:

Now by pipette do you mean one of those that has a disposable tip on it or do you mean like a glass--can you--

73 MR. SCHECK:

Glass.

74 MR. SIMS:

Yes. Well, it is not very flexible; it is glass.

75 MR. SCHECK:

Well, one of those thin plastic ones?

76 MR. SIMS:

Oh, okay, yes, those are flexible.

77 MR. SCHECK:

Right, and he can flick particles?

78 MR. SIMS:

Yes, yes.

79 MR. SCHECK:

Especially when you are pulling out of a tube?

80 MR. SIMS:

Yes.

81 MR. SCHECK:

So that is another kind of aerosol if--using that definition?

82 MR. SIMS:

Yes, yes.

83 MR. SCHECK:

And these are particles of blood?

84 MR. SIMS:

Yes.

85 MR. SCHECK:

From which nanograms of DNA can be extracted?

86 MR. SIMS:

Well, if these are real small specks, I don't think you could get nanograms.

87 MR. SCHECK:

Well--

88 MR. SIMS:

I mean if you--

89 MR. SCHECK:

Again how many?

90 MR. HARMON:

Objection, your Honor, he cut off his answer.

91 THE COURT:

Sustained.

92 MR. SCHECK:

I'm sorry. Did you finish, Mr. Sims?

93 MR. SIMS:

I was going to say if you had a large flake, then that would be nanogram quantities, but not the kind of minute specks that I think you are talking about. Those are not nanogram quantities usually.

94 MR. SCHECK:

Well, let's go back to our discussion of specks.

95 MR. SIMS:

Okay.

96 MR. SCHECK:

All right.

97 MR. SIMS:

Yes.

98 MR. SCHECK:

How small a particle can one get to derive two nanograms of DNA?

99 MR. SIMS:

Well, from that, if it was solid blood, it would be a very small flake, something like that.

100 MR. SCHECK:

Now, let's turn to paper.

101 MR. SIMS:

Okay.

102 MR. SCHECK:

When examining biological specimens, is it not an important precaution, to change paper just in examining each item?

103 MR. SIMS:

I think that is an important precaution, yes.

104 MR. SCHECK:

So just so we know what we are talking about, let's say you were examining a blood swatch on a white piece of--what do they call it in labs? Butcher paper?

105 MR. SIMS:

Yes.

106 MR. SCHECK:

After examining that swatch it would be important to remove the paper from which the swatch came before then examining another swatch on that paper?

107 MR. SIMS:

Yes. In other words, you wouldn't want to put two swatches on the same piece of paper. I would agree with that.

108 MR. SCHECK:

All right. And in terms of--let's go back to our situation with the test-tube being with the dried swatches being scraped out with the pipette.

109 MR. SIMS:

Okay.

110 MR. SCHECK:

And paper below the test-tube.

111 MR. SIMS:

Okay.

112 MR. SCHECK:

Would it not be an important precaution against cross-contamination to change the paper every time you removed a set of swatches?

113 MR. SIMS:

I'm having a little trouble conceptualizing what is that swatch then being directed into? I need to get clarification on that.

114 MR. SCHECK:

All right. There is paper--butcher paper covering the table.

115 MR. SIMS:

Okay.

116 MR. SCHECK:

Section of a table.

117 MR. SIMS:

Okay.

118 MR. SCHECK:

And then on top of that butcher paper is a rectangular bindle.

119 MR. SIMS:

Okay.

120 MR. SCHECK:

You saw bindles in this case, did you not?

121 MR. SIMS:

I did.

122 MR. SCHECK:

Bindles from the Los Angeles Police Department?

123 MR. SIMS:

Yes.

124 MR. SCHECK:

Bindles that contained swatches?

125 MR. SIMS:

Yes.

126 MR. SCHECK:

I ask you to assume that the bindle is on top of the butcher paper.

127 MR. SIMS:

Okay.

128 MR. SCHECK:

And that the test-tube with the dried swatches is being--the swatch is being scraped out of that test-tube with the pipette aiming for the bindle surrounded by the paper.

129 MR. SIMS:

Okay.

130 MR. SCHECK:

Would it not be sound fundamental laboratory practice to change the paper underlying the bindle every time you moved to a new item?

131 MR. SIMS:

I think I would do that. I don't know if it is absolutely mandatory to do that, because the bindle does act like a new piece of paper if it is big enough, but I think it would be a good idea to put a clean piece of paper underneath each bindle, yes.

132 MR. SCHECK:

Well, the particles or the aerosol may not hit the bindle.

133 MR. SIMS:

That's correct.

134 MR. SCHECK:

And to protect against cross-contamination from those particles, it would be sound practice to change the paper?

135 MR. HARMON:

Objection, asked and answered.

136 THE COURT:

Overruled.

137 MR. SIMS:

Well, I would--I think it would be a good idea to either change the paper or to put like a wipe or something, some kind of tissue over that paper so that you covered that area, yes.

138 MR. SCHECK:

Instruments. Withdrawn. Before I move from--now, in your laboratory is it not part of your protocol that not only--that the paper underlying an item that you just examined, right, should be changed every time you examine another item of evidence?

139 MR. SIMS:

Yes, I would do that.

140 MR. SCHECK:

Isn't that part of your protocol?

141 MR. SIMS:

Yes.

142 MR. SCHECK:

And when you are cutting or sampling an item you would change the paper for each different item?

143 MR. SIMS:

Yes, yes.

144 MR. SCHECK:

That would apply to a blood swatch?

145 MR. SIMS:

Yes.

146 MR. SCHECK:

That would apply to cuttings from a glove?

147 MR. SIMS:

Well, now between each cutting? Is that what you are saying?

148 (Nods head up and down.)
149 MR. SIMS:

I believe that is what I did in this particular case, yes.

150 MR. SCHECK:

Now, instruments. There are various kind of instruments that are used to manipulate biological evidence in a crime lab?

151 MR. SIMS:

Yes.

152 MR. SCHECK:

Tweezers?

153 MR. SIMS:

Yes or forceps is what we call them in the scientific world.

154 MR. SCHECK:

Forceps?

155 MR. SIMS:

Yes.

156 MR. SCHECK:

And is it important to make sure that you clean all instruments that are used in manipulating biological specimens?

157 MR. SIMS:

Yes.

158 MR. SCHECK:

Gloves. Is it part of your protocol to change gloves every time you handle a different item of biological evidence?

159 MR. SIMS:

I don't believe I change my gloves after every item. Umm, what I do sometimes would be usually to wash my gloves, and certainly if I had any indication at all that I may have something on my gloves, I would discard them right away and after, for example, I have been working around the laboratory and handling doors and things like that, I would change my gloves also, but I don't believe I would change my gloves necessarily between each separate item.

160 MR. SCHECK:

Did you change your gloves between each swatch that you handled in this case?

161 MR. SIMS:

I don't believe so. No, I don't think so.

162 MR. SCHECK:

Would you agree that not changing gloves--well, let's start this way: In handling a wet swatch would you change your gloves between handling each swatch?

163 MR. HARMON:

Objection. "handling" is vague, your Honor.

164 THE COURT:

Rephrase.

165 MR. SCHECK:

All right.

166 THE COURT:

What part of the process are we talking about?

167 MR. SCHECK:

In removing a swatch, wet swatch from a plastic bag, would it be sound practice to change gloves between handling each set of wet swatches?

168 MR. HARMON:

Objection. "removing" is vague, your Honor.

169 THE COURT:

Overruled.

170 MR. SIMS:

Well, I think if you mean by the scenario we talked about earlier where you are sticking the tube up in there--

171 MR. SCHECK:

Yeah.

172 MR. SIMS:

--I think if there was any danger that you would have blood getting onto that tube and then you touched that tube, for example, that would be a good idea to change your gloves, yes.

173 MR. SCHECK:

Uh-huh. And in the process we talked about where you are scraping the swatches out of the test-tubes onto the bindle and paper, between each set of evidence items would you change your gloves?

174 MR. SIMS:

Well, now there--as you are explaining it, you are sort of--you know, you are creating a situation where it is coming down onto your gloves. I'm not sure that the criminalist might have the--the material out in front of him or her so that they are really not having the particle come down onto the gloves. Do you understand what I'm saying?

175 MR. SCHECK:

Well, if--are you--would you, as a precautionary practice, describing--looking at the process we are talking about, scraping the swatches out of the tube--

176 MR. SIMS:

Okay.

177 MR. SCHECK:

--dried swatches out of the tube, would you change your gloves between handling each of those items?

178 MR. SIMS:

No, I don't--I don't think so, because I think one could reach into that tube and dislodge that sample in such a way that then one wouldn't get powder onto the gloves. I don't--I don't know that I have ever done that procedure, so it is hard for me to evaluate it on my own experience, but I think at least one might wash one's gloves after each item. That would probably be a good idea.

179 MR. SCHECK:

So your testimony then is you would either change your gloves or wash your gloves between each of these items?

180 MR. SIMS:

I think that would be a good idea, but again, it depends on how exactly that manipulation is performed.

181 MR. SCHECK:

Maybe I asked you this question--let's make sure I asked you this question: Did you either change your gloves or wash your gloves between handling each swatch in this case?

182 MR. HARMON:

Objection, compound.

183 THE COURT:

Sustained.

184 MR. SCHECK:

All right. You testified a second ago that you didn't necessarily change your gloves between each item?

185 MR. SIMS:

That's correct.

186 MR. SCHECK:

All right. Would you, between handling each of the swatch items in this case, have either changed your gloves or washed your gloves?

187 MR. SIMS:

Yes, I believe that is correct.

188 MR. SCHECK:

All right. So you were either using a new set of gloves when you handled each separate item or you were using a set of gloves that you had washed?

189 MR. SIMS:

Yes. I was trying to save the taxpayers a little money by washing them.

KEY QUOTE
190 MR. SCHECK:

Okay.

191 (Discussion held off the record between Defense counsel.)
192 MR. SCHECK:

Now, would you agree that with respect to--well, actually--can we move to I? In viewing each of these different factors in terms of cross-contamination, okay--

193 MR. SIMS:

Okay.

194 MR. SCHECK:

--starting to the right hand of that white line, right?

195 MR. SIMS:

Okay.

196 MR. SCHECK:

--the first one we were talking about, degraded samples.

197 MR. SIMS:

Okay.

198 MR. SCHECK:

Right. And we agreed that in handling degraded samples, that is, the fact that samples are degraded creates a risk of cross-contamination in and of itself?

199 MR. SIMS:

Yes. There is greater risk with those samples.

200 MR. SCHECK:

And handling a reference sample, I am now looking at the test-tube plus one, all right?

201 MR. SIMS:

Okay.

202 MR. SCHECK:

--reference sample in the same area during the same period, either by pouring off sample from the--popping up the top of the tube, pouring it onto a card and in the same area during the same period, one is handling evidence samples, that kind of situation can increase of risk of cross-contamination?

203 MR. HARMON:

Objection. "period" is vague, your Honor.

204 THE COURT:

Overruled.

205 MR. SIMS:

Yes.

206 MR. SCHECK:

And handling samples from a suspect and a victim at the same time can create a risk of cross-contamination of sample?

207 MR. SIMS:

Can we clarify a little bit about suspect and victim? I think we had a had a little--

208 MR. SCHECK:

You recall that discussion that is represented by that logo, without reviewing it all?

209 MR. SIMS:

Yes, I think we talked about that.

210 MR. SCHECK:

And then we talked about samples represented by that scale of samples with high DNA concentration and low DNA concentration?

211 MR. SIMS:

Yes.

212 MR. SCHECK:

And then we talked about samples from different crime scenes?

213 MR. SIMS:

Yes.

214 MR. SCHECK:

And we talked about handling many samples at the same time?

215 MR. SIMS:

Yes.

216 MR. SCHECK:

Now, with respect to all those different contamination factors to the right of the line, those represent in a sense situations that can raise the level of risk in terms of making an inadvertent transfer of cross-contamination?

217 MR. SIMS:

Yes.

218 MR. SCHECK:

Now, looking to the factors on the left-hand side--

219 MR. SIMS:

Okay.

220 MR. SCHECK:

--if you combine the creation of an aerosol--

221 THE COURT:

Excuse me, counsel. This witness has never adopted your characterization of aerosol. Airborne particles perhaps; not aerosol.

KEY QUOTE
222 MR. SCHECK:

Thank you.

223 MR. SCHECK:

Airborne articles represented by the clip art of fireworks?

KEY QUOTE
224 MR. SIMS:

I like that.

225 MR. SCHECK:

Thank you. All right. Talking about airborne particles, all right?

226 MR. SIMS:

Okay.

227 MR. SCHECK:

Combining that with any of these other situations to the right of the line, that is a--sort of a mechanism of transfer that would increase the risk of cross-contamination?

228 MR. SIMS:

Yes.

229 MR. SCHECK:

And the paper, you recall our discussion about not changing paper?

230 MR. SIMS:

Yes.

231 MR. SCHECK:

If you combine not changing paper with each of those situations, that is a mechanism of transfer that can increase the risk of cross-contamination?

232 MR. SIMS:

Yes.

233 MR. SCHECK:

And with respect to the bunsen burner representing the cleaning of instruments, if one does not adequately clean instruments, that can be a mechanism of transfer that facilitates cross-contamination, raises the level of risk in the other situations to the right of that white line?

234 MR. SIMS:

Yes.

235 MR. SCHECK:

And with respect to gloves, gloves, either not changing gloves or washing gloves--

236 MR. SIMS:

Right.

237 MR. SCHECK:

--okay, between samples, combined with any of those other factors to the right of the line, can become a mechanism of transfer for cross-contamination?

238 MR. SIMS:

Yes.

239 MR. SCHECK:

Thank you.

240 (Discussion held off the record between Defense counsel.)
241 MR. SCHECK:

Let's turn to note taking.

242 MR. SIMS:

Okay.

243 MR. SCHECK:

Your protocol has a section dealing with note taking?

244 MR. SIMS:

Yes.

245 MR. SCHECK:

Are you familiar with it?

246 MR. SIMS:

Yes, I am.

247 MR. SCHECK:

Do you rely on it?

248 MR. SIMS:

Yes, I do.

249 MR. SCHECK:

Good. That saves me some time. Would you agree, and I'm now referring to section 7.3 of your protocol, that the functions of note taking are: "to support the conclusions in the laboratory report, to permit internal review of the work product, to allow reevaluation of the data by outside scientific observers, and to provide a foundation for the introduction of work product into Court"?

250 MR. SIMS:

Yes.

251 MR. SCHECK:

Do you agree that: "notes are to be made at the time the work is done and to accurately reflect what was done"?

252 MR. SIMS:

Yes.

253 MR. SCHECK:

So the way that you filled out notes in this case, is that you would perform a procedure and then after performing the procedure you would write down what you did?

254 MR. SIMS:

Yes.

255 MR. SCHECK:

And write that down in detail?

256 MR. SIMS:

Yes.

257 MR. SCHECK:

Including, for example, changing or washing gloves?

258 MR. SIMS:

Yes. In some instances I did that early on, and then as things became more routine, I just kind of knew that that was part of the routine.

259 MR. SCHECK:

Would you agree that for case work analytical notes should be recorded on DNA case note forms or the appropriate run sheet or checklist and each page should be numbered?

260 MR. SIMS:

Yes.

261 MR. SCHECK:

Dated?

262 MR. SIMS:

Yes.

263 MR. SCHECK:

And initialed by the analyst?

264 MR. SIMS:

Yes.

265 MR. SCHECK:

And handwritten notes should be made in ink?

266 MR. SIMS:

Yes.

267 MR. SCHECK:

You have been working in criminalistic labs for how long?

268 MR. SIMS:

Almost--well, 19 years.

269 MR. SCHECK:

All right. When you make your initials on various pieces of packaging, you do them in ink?

270 MR. SIMS:

Yes. It would be weird that I would ever have a pencil around in my lab.

KEY QUOTE
271 MR. SCHECK:

And corrections--

272 MR. SIMS:

Yes.

273 MR. SCHECK:

--should be made by lining through the original so the original text is still visible?

274 MR. SIMS:

Yes.

275 MR. SCHECK:

And initialing the correction?

276 MR. SIMS:

Yes.

277 MR. SCHECK:

And that is a precaution that criminalists take to ensure chain of custody?

278 MR. SIMS:

Yes.

279 MR. HARMON:

Objection. That is argumentative and it is also irrelevant, beyond the scope.

280 THE COURT:

Overruled.

281 MR. SCHECK:

And do you rely on the section of your protocol entitled "documentation," section 3.3?

282 MR. SIMS:

Yes, I do.

283 MR. SCHECK:

Would you agree that note keeping is defined as documentation of work is performed?

284 MR. SIMS:

Yes.

285 MR. SCHECK:

As "performed" means both that the record is made at the time the work is done?

286 MR. SIMS:

Yes.

287 MR. SCHECK:

And what is recorded is what is actually done?

288 MR. SIMS:

Yes.

289 MR. SCHECK:

Now, you reviewed bindles from the Los Angeles Police Department in this case?

290 MR. SIMS:

Yes.

291 MR. SCHECK:

Bindles that contain swatches?

292 MR. SIMS:

Yes.

293 MR. SCHECK:

And the initials on those bindles were in pencil?

294 MR. SIMS:

I think that most of the D.F. Ones were in pencil, as I recall.

295 MR. SCHECK:

And those bindles didn't have June dates.

296 MR. SIMS:

I think a couple of them did, but I don't--I certainly--you asked me earlier if I saw any with the June dates, and I don't think I had any with the June dates on them, if is that your--

297 MR. SCHECK:

Did you see one bindle with the initials "A.M." for Andrea Mazzola on any of the swatches you handled?

298 MR. SIMS:

No. I don't recall seeing "A.M." on any of those bindles.

299 MR. SCHECK:

Now, you have a manual for your laboratory?

300 MR. SIMS:

Yes.

301 MR. SCHECK:

And as we agreed before, it is detailed?

302 MR. SIMS:

Yes.

303 MR. SCHECK:

Everyone in the laboratory is familiar with that manual?

304 MR. SIMS:

Yes, they should be.

305 MR. SCHECK:

And the provisions of that manual are not just guidelines that analysts are free to ignore if they feel they want to--

306 MR. SIMS:

That's correct, they cannot ignore those.

307 MR. SCHECK:

And would you agree, as an expert in crime lab procedure, that being careful and paying attention to detail in the handling and the documentation of samples is very important?

308 MR. SIMS:

Yes.

309 MR. SCHECK:

And that being sloppy about the handling of biological samples with respect to DNA testing, umm, is something that should be avoided?

310 MR. SIMS:

Yes.

311 MR. SCHECK:

Because of the dangers of cross-contamination or at least that is certainly one of the reasons?

312 MR. SIMS:

That is one of the reasons, yes.

313 MR. SCHECK:

And when we talk about inadvertent transfers, would you agree that sometimes one makes accidents in the handling of samples that one is aware of?

314 MR. SIMS:

Yes.

315 MR. SCHECK:

You might be aware that you saw some particle of blood, for example, on a glove?

316 MR. SIMS:

Yes.

317 MR. SCHECK:

But accidents can happen that you are not aware of?

318 MR. SIMS:

Yes.

319 MR. SCHECK:

In the handling and the manipulation of samples?

320 MR. SIMS:

Yes.

321 MR. SCHECK:

And it is for that reason that it is important to follow the precautions that we reviewed so far this afternoon?

322 MR. SIMS:

Well, there is a lot more to that, but yes, that is part of it.

323 MR. SCHECK:

And in terms of at the end of a DNA analysis, when you are looking at an autorad or a typing strip, and there is some indication in your controls, positive control, negative control or quality control sample, of a irregularity, it is often difficult to go back and figure out what stage of the process went wrong that caused that irregularity?

324 MR. SIMS:

It can be difficult, but one can take a systematic approach to that and track back and perform the different parts of the experiment, and also if one has, for example, extracted DNA or raw material, one can repeat that analysis. That could be part of the way of tracking that back. You may not figure out exactly what happened, but then you could still get the correct result, for example.

325 MR. SCHECK:

For example, on these DNA typing strips for PCR, one sees dots?

326 MR. SIMS:

Yes.

327 MR. SCHECK:

And when certain dots light up, that is an indication that perhaps some amount of DNA associated with an allele has been detected?

328 MR. SIMS:

Yes.

329 MR. SCHECK:

But sometimes dots can light up and one wonders whether or not that is DNA that really comes from the starting material that you are examining as opposed to something that may be just what's called an artifact in the process?

330 MR. HARMON:

Objection, compound.

331 THE COURT:

Sustained. Rephrase the question.

332 MR. SCHECK:

What is--can dots light up on that PCR strip and it not be the DNA from the starting material?

333 MR. SIMS:

Yes. That could happen, for example, if you had a mix-up of sample or something like that, yes.

334 MR. SCHECK:

And--or it could happen from some kind of contaminant that gets into the reagents?

335 MR. SIMS:

Yes.

336 MR. SCHECK:

It can happen from some cross-contamination in the handling, in the extraction--cutting and extraction of the sample?

337 MR. SIMS:

Yes.

338 MR. SCHECK:

But when one starts the reconstruction from looking at that dot-blot--

339 MR. SIMS:

Okay.

340 MR. SCHECK:

--it can often be difficult to figure out exactly what occurred to cause the dot to appear?

341 MR. SIMS:

Sometimes it is difficult, yes.

342 MR. SCHECK:

Now, let's talk for a second about your training in forensic DNA analysis.

343 MR. SIMS:

Okay.

344 MR. SCHECK:

You testified that you started at the Department of Justice in 1990?

345 MR. SIMS:

Yes, in January of 1990.

346 MR. SCHECK:

And was that your first exposure to doing forensic DNA analysis?

347 MR. SIMS:

No. My--well, as far as doing it--my first training in DNA went back to 1988, but that was--that was a class that I took in how to perform DNA analysis.

348 MR. SCHECK:

All right.

349 MR. SIMS:

My first job involving DNA analysis was 1990, yes.

350 MR. SCHECK:

And that is when you started at the Department of Justice?

351 MR. SIMS:

Yes.

352 MR. SCHECK:

But you did not begin to do case work in January of 1990?

353 MR. SIMS:

That's correct.

354 MR. SCHECK:

You began a process of training?

355 MR. SIMS:

Yes.

356 MR. SCHECK:

And could you describe for us--and you didn't--I think you told us on direct examination that you didn't begin doing case work until May or June of 1993?

357 MR. SIMS:

`92.

358 MR. SCHECK:

`92, I'm sorry. So how long was that from the time you first started at the DOJ lab?

359 MR. SIMS:

About--about two years, a little over two years.

360 MR. SCHECK:

But before you started at the DOJ lab, did you have extensive experience in crime lab procedures?

361 MR. SIMS:

Yes.

362 MR. SCHECK:

How many years?

363 MR. SIMS:

Well, as part of my--all the time that I was in criminalistics, so that would be, what now, about fourteen years of experience in criminalistics before I went to the Department of Justice, something like that.

364 MR. SCHECK:

Doing conventional serological testing?

365 MR. SIMS:

Yes.

366 MR. SCHECK:

Umm, and dealing with biological specimens?

367 MR. SIMS:

Yes.

368 MR. SCHECK:

But you did not begin doing case work until you finished two years of training?

369 MR. SIMS:

That's correct.

370 MR. SCHECK:

And when you did your training, did you receive guidance from people that had Ph.Ds or doctorate degrees?

371 MR. SIMS:

Yes.

372 MR. SCHECK:

People who had training in molecular biology?

373 MR. SIMS:

Yes.

374 MR. SCHECK:

People who had doctorate degrees in population genetics?

375 MR. SIMS:

Yes.

376 MR. SCHECK:

I think the phrase you used on direct examination, when Mr. Harmon was asking you why it took so long, you said something to the effect that it is important to know what makes a good bloodstain into a bad bloodstain?

377 MR. SIMS:

Yes. That was part of I think what we were discussing, our environment abuse experiment where we exposed blood and semen stains to a wide variety of environment conditions to evaluate whether or not we would get the right or the wrong answer.

378 MR. SCHECK:

And so it would be important, for criminalists who are collecting, packaging, processing, extracting, performing DNA analysis, to have an understanding of what causes degradation in samples?

379 MR. HARMON:

Objection, misstates the testimony. It is argumentative.

380 MR. SCHECK:

I'm asking him if that is true.

381 THE COURT:

Overruled.

382 MR. SIMS:

Yes, I think that would be important, that people collecting biological evidence should have some basic understanding.

383 MR. SCHECK:

Of--they should have a basic understanding of what can cause cross-contamination?

384 MR. SIMS:

Yes.

385 MR. SCHECK:

In forensic DNA analysis?

386 MR. SIMS:

Yes.

387 MR. SCHECK:

And this, I think you indicated, is only the eighth time you have testified in court about your forensic DNA work?

388 MR. SIMS:

I think this is now nine.

389 MR. SCHECK:

Nine? Okay. Now, you talked on direct examination about laboratory accreditation?

390 MR. SIMS:

Yes.

391 MR. SCHECK:

You indicated that the Department of Justice is accredited by what is known as Asclad lab?

392 MR. SIMS:

The American society of crime laboratory directors laboratory accreditation board.

393 MR. SCHECK:

Yes. Now, this is a group of people that are doing forensic work?

394 MR. SIMS:

Yes.

395 MR. SCHECK:

And I think you said that I think it was, to save me some time, that with respect to the recommendations of the national research council of the national academy of science in their book "DNA technology in forensic science" that you don't rely on any of it?

396 MR. HARMON:

Objection. That misstates the testimony that he gave.

397 THE COURT:

Overruled.

398 MR. SIMS:

I think you--as I understand, Mr. Harmon's question was did I rely on anything in there to reach the conclusions that I reached in this case.

399 MR. SCHECK:

Oh, okay. Are you familiar with the recommendations in that book concerning laboratory accreditation?

400 MR. HARMON:

Objection. It is irrelevant, hearsay under 721.

401 THE COURT:

Overruled.

402 MR. HARMON:

No foundation.

403 THE COURT:

You can answer the question. Yes or no. Are you familiar with it?

404 MR. SIMS:

No.

405 MR. SCHECK:

You didn't read that chapter?

406 MR. SIMS:

Well, I don't remember the administrative stuff.

407 (Discussion held off the record between Defense counsel.)
408 MR. SCHECK:

Do you recall reading a chapter 4 called "ensuring high standards"?

409 MR. SIMS:

Yes, I remember this chapter.

410 MR. SCHECK:

May I approach?

411 (Brief pause.)
412 MR. SCHECK:

Well, do you know whether you would rely on any part of this chapter as a--in terms of your expertise in criminalistics?

413 MR. HARMON:

Objection. It is vague--it is irrelevant what he would rely on. It is hearsay, foundational 721.

414 MR. SCHECK:

I am trying to save some time.

415 THE COURT:

Overruled.

416 MR. SIMS:

I think you would have to ask me on a point by point basis.

417 MR. SCHECK:

Some you would rely on; some you wouldn't?

418 MR. SIMS:

Depending on what that section says.

419 THE COURT:

Mr. Scheck, why don't we move on. I'm not overly optimistic on this line of questioning.

420 MR. SCHECK:

Well, let me just try it. Try a little bit.

421 MR. HARMON:

Your Honor, I have an objection to--

422 THE COURT:

Wait, wait. I am discussing this with counsel. I am trying to give him some guidance. Why don't you sit down. I'm not overly optimistic, Mr. Scheck, given the lack of the foundation at this point, so why don't we move on.

423 MR. SCHECK:

I have located the sentence. Let me just ask this one and then I will move on, your Honor.

424 MR. SCHECK:

Let me call your attention to--

425 THE COURT:

Ask him if it refreshes his recollection whether or not he relied upon that.

426 MR. SCHECK:

Yes, yes. That is exactly what I'm going to do.

427 THE COURT:

Don't read it. Let him read it.

428 MR. SCHECK:

I'm not. I'm not. I am just pointing it out.

429 MR. SCHECK:

Let me just call your attention to the sentence on page 102 in the--the section dealing with establishing standards in forensic DNA typing, starting at the bottom of the page and moving into the top of page 103.

430 MR. HARMON:

Objection, your Honor. He is reading parts of the book right now.

431 MR. SCHECK:

I am calling his attention to it.

432 THE COURT:

No. Go ahead and read it.

433 MR. SCHECK:

Just read that to yourself and then tell me whether you rely upon that section?

434 (Witness complies.)
435 MR. HARMON:

Objection. It is vague in relied upon in forming what opinion?

436 THE COURT:

Overruled, counsel.

437 MR. SCHECK:

Have you relied upon that in forming your opinions with respect to accreditation of laboratories?

438 MR. SIMS:

No.

439 THE COURT:

Proceed.

440 MR. SCHECK:

Now, do you believe--do you have--you were asked questions about clinical medicine on your direct examination and DNA typing in clinical medicine.

441 MR. SIMS:

Yes.

442 MR. SCHECK:

All right. Are you aware of standards or regulations in clinical medicine and how they compare to the standards on forensic laboratories?

443 MR. SIMS:

No.

444 MR. SCHECK:

So the issue is you know forensic standards?

445 MR. SIMS:

Yes.

446 MR. SCHECK:

But you are not aware of the standards required of laboratories who are using DNA typing in clinical medicine?

447 MR. SIMS:

That's correct, I don't know those standards.

448 MR. SCHECK:

All right. So you couldn't tell us whether they are more rigorous or less rigorous than forensics?

449 MR. HARMON:

Objection, asked and answered.

450 THE COURT:

Overruled.

451 MR. HARMON:

Calls for speculation, too.

452 THE COURT:

Overruled.

453 MR. SIMS:

I couldn't tell you.

454 MR. SCHECK:

Now, in terms of discussing forensic DNA typing, Asclad sets standards which your laboratory had to meet?

455 MR. SIMS:

Yes.

456 MR. SCHECK:

And would you agree that the process of preparing your laboratory for Asclad accreditation improved in some measure the work in the laboratory?

457 MR. SIMS:

I don't--I don't think it necessarily improved our work product. I think what it did was to bring it all together for us, and I think it--it addressed some issues. I mean, when you talk about accreditation, this would even include safety issues, evidence handling issues as far as security of the laboratory, all those things are part of it. I don't think in a particular way that it changed our work product. I don't think it changed the quality of our product. I think what it helps to do is to tell the users of our services that we are meeting certain minimum standards and so it is--it is saying that we meet those standards.

458 MR. SCHECK:

All right. I'm not asking you--I think you were asked on direct examination were your results as reliable before the accreditation process as after. Do you recall that?

459 MR. SIMS:

Yes.

460 MR. HARMON:

That misstates the testimony.

461 THE COURT:

Overruled.

462 MR. SCHECK:

I'm not asking you that question.

463 MR. SIMS:

Okay.

464 MR. SCHECK:

I mean, in terms of, umm, cases, are you--are you aware of making a mistake?

465 MR. SIMS:

In--

466 MR. SCHECK:

In any of your forensic DNA typing cases to this point?

467 MR. SIMS:

No, I am not aware that I have made a mistake in any of my cases.

468 MR. SCHECK:

Right. On the other hand, would you agree that the process of accreditation which I think you have indicated you review all the different techniques in your laboratory?

469 MR. SIMS:

Yes.

470 MR. SCHECK:

You look at how various people in the laboratory handle biological evidence?

471 MR. SIMS:

Yes.

472 MR. SCHECK:

You would look into some of the factors that we discussed this afternoon in terms of trying to prevent cross-contamination and precautions that ought to be taken?

473 MR. SIMS:

Yes.

474 MR. SCHECK:

Is that the kind of thing that is done during the accreditation process?

475 MR. SIMS:

Yes.

476 MR. SCHECK:

And during the accreditation process did you work on that manual that we've talked about?

477 MR. SIMS:

Yes. I think we had to put together the manual as part of our accreditation, yes.

478 MR. SCHECK:

And in putting together the manual you went through the details of exactly what people did?

479 MR. SIMS:

Yes.

480 MR. SCHECK:

And people learned exactly what procedures ought to be followed with care?

481 MR. SIMS:

Well, people didn't hear that from the manual. We knew those things so we incorporated those things into our manual to say as a reference that that is how we are doing things and we are telling you that this is how we are doing things.

482 MR. SCHECK:

Right. And maybe some people in the laboratory had one way of doing things and other people had others?

483 MR. SIMS:

Well, we were--we were actually pretty much all on the same wavelength as far as those concerns, but there were some minor things, yes, that we improved upon.

484 MR. SCHECK:

And in the process of accreditation and in putting together of this manual, what happens is, is that you set out uniform standards that you can be sure everyone associated with that crime lab will follow?

485 MR. SIMS:

Well, I can be sure that they know they are supposed to follow those, yes.

486 MR. SCHECK:

Right. And you would agree that that is a benefit of going through the accreditation process?

487 MR. SIMS:

Yes. I would agree with that.

488 MR. SCHECK:

Now, on direct examination there was some discussion of your role in what is known as certification?

489 MR. SIMS:

Yes.

490 MR. SCHECK:

And accreditation is something that is done for the whole laboratory, correct?

491 MR. SIMS:

Yes.

492 MR. SCHECK:

But certification is a process where an individual criminalist is examined?

493 MR. SIMS:

That's correct.

494 MR. SCHECK:

And I think you told us something about being on the board of American--what is the title of that organization?

495 MR. SIMS:

I was on the board of examiners that--that--for example, I would work on certain test questions. I would also proctor the examination.

496 MR. SCHECK:

Uh-huh. This would be for the individual analyst, this certification test?

497 MR. SIMS:

Yes.

498 MR. SCHECK:

And would you agree that the process of preparing for the test has the effect of improving the work of an individual analyst?

499 MR. SIMS:

Yes. I think--I think that is a fair statement. In other words, part of that is the educational benefit that one gains from preparing for that sort of examination, yes.

500 MR. SCHECK:

I mean, no matter how experienced one is, you can always learn some new technique that will improve your level of practice?

501 MR. SIMS:

Yes.

502 MR. SCHECK:

So you would agree it is important that criminalists who work for a number years in the field be certified?

503 MR. SIMS:

I think it is important that the criminalist move toward certification, yes. Our field has been slow to do that, and we are now coming on line with certification more and more.

504 MR. SCHECK:

Umm, do you know Dennis Fung?

505 MR. SIMS:

I know him from watching him in this case, yes.

506 MR. SCHECK:

Do you know if your organization has certified him through its examinations?

507 MR. HARMON:

Objection, irrelevant, beyond the scope.

508 THE COURT:

Sustained.

509 MR. SCHECK:

Are you familiar with the guidelines for the collection of DNA evidence that was published by the FBI?

510 MR. SIMS:

Yes, I think--was that the one that Dr. Lee was a co-author of?

511 (Nods head up and down.)
512 MR. SIMS:

Yes.

513 MR. SCHECK:

Have you reviewed that document?

514 MR. SIMS:

Yes.

515 MR. SCHECK:

Do you rely on it?

516 MR. HARMON:

Objection, it is vague. Rely on what for what reason?

517 THE COURT:

Sustained.

518 MR. SCHECK:

All right. Is there anything you saw in that document you don't rely on?

519 MR. HARMON:

Objection, still vague.

520 THE COURT:

Sustained.

521 MR. SCHECK:

For purposes of methods that you in your expert opinion would believe were sound for the collection of evidence items for purposes of forensic DNA analysis?

522 MR. SIMS:

I don't--I don't recall any statement in there that I disagreed with, no.

523 MR. SCHECK:

Now, as the last part of this section of our discussion here, Mr. Sims, I have a series of photographs, your Honor, that I would like to mark--

524 THE COURT:

11--1160-A through--

525 MR. SCHECK:

Maybe 1168-A, B, C, D, E and F.

526 THE COURT:

All right. 1160.

527 (Deft's 1160-A thru f for id = photographs)
528 THE COURT:

A through F.

529 MR. SCHECK:

And you and I reviewed these photographs, did we not?

530 MR. SIMS:

Yes. We looked at them just briefly.

531 MR. SCHECK:

And these are photographs of you in your laboratory?

532 MR. SIMS:

Yes. These were taken a few weeks ago by Dr. Blake.

533 MR. SCHECK:

And this--these photographs were--showed you at different stages of the process by which you, I guess, initially handled and cut the samples in this case?

534 MR. SIMS:

Yes. Dr.--Dr. Blake asked me to reconstruct and just sort of go through what it looked like as I was processing the samples in this case.

535 MR. SCHECK:

And could you review those and suggest which order we ought to go through.

536 THE COURT:

You mean you didn't put those in order, a through F?

537 MR. SCHECK:

I think we did, but I'm only asking him whether I have the order right.

538 THE COURT:

How about if we renumber them in the order we are going to use them.

539 MR. SCHECK:

I'm sorry?

540 THE COURT:

Renumber them in the order we are going to use them.

541 MR. SCHECK:

I am going to do that.

542 THE COURT:

All right.

543 MR. SCHECK:

Let me show you B.

544 MR. SIMS:

Okay.

545 THE COURT:

We are going to start with B?

546 MR. SCHECK:

Start with B. A is a surprise.

547 (Brief pause.)
548 MR. SCHECK:

Could you describe for us what is depicted in A?

549 MR. SIMS:

Yes. Those are, I believe, my hands. What I'm showing is the process of how I am cutting out a sample here. This is just a blank card. Obviously, it is a white card. I'm showing that I have the--I have a laboratory bench that I have bleached now. I have a--

550 MR. SCHECK:

Well, let's just stop right there. The laboratory bench is the bench that that blue what would you call it, hospital--

551 MR. SIMS:

Hospital type diaper we call them, something like that.

552 MR. SCHECK:

Okay. Hospital type diaper, that is what it is, okay. Correct?

553 MR. SIMS:

Correct.

554 MR. SCHECK:

All right. So before you put that hospital type diaper on the bench you bleach it?

555 MR. SIMS:

Yes.

556 MR. SCHECK:

And the purpose of bleaching it is to make sure that you get rid of biological material that could contain DNA?

557 MR. SIMS:

Yes.

558 MR. SCHECK:

All right. Then you put the hospital type blue--what should we call it, blanket?

559 MR. SIMS:

Sure.

560 MR. SCHECK:

--on the bench?

561 MR. SIMS:

Okay.

562 MR. SCHECK:

Then what is that white paper on top of the blue hospital blanket?

563 MR. SIMS:

Okay. I would--the way I am processing this case--the way I processed this case and other cases certainly, too, I would put down a new one of these blue pads for each one of the items that I looked at. Keep in mind that each item is--generally each item is a coin envelope that contains two bindles, so inside this coin envelope are two bindles. One of the bindles would contain the swatch with the bloodstain on it. The other bindle would contain the substrate control, so I would change this blue pad between each one of those coin envelopes. So now when I would open the coin envelope--I'm sorry. Before I would open the coin envelope there would be one of these white chem wipes, just a piece of white tissue, a large size tissue like a Kleenex somewhat.

564 MR. SCHECK:

Is that the white--

565 MR. SIMS:

Yes.

566 MR. SCHECK:

Chem wipe is the large white object--larger white object on top of the blue blanket?

567 MR. SIMS:

Yes. And so I would process the bindle containing the stain on top of one chem wipe and then I would change the chem wipe and then process the next bindle containing the substrate control with a new chem wipe.

568 MR. SCHECK:

So what you are actually doing there, is that just for one item, all right, one item that contains the swatch with the specimen on it and the substrate control, between the substrate control and the specimen you would change the surface you were working on that chem wipe?

569 MR. SIMS:

Yes, in most cases. I think on some of these it may have just been one chem wipe that I am working on. You can see it is a large chem wipe, so I would work on two different areas of it.

570 MR. SCHECK:

Different areas or you change the chem wipe?

571 MR. SIMS:

Yes.

572 MR. SCHECK:

And the manila envelope there, that is to replicate the coin envelope?

573 MR. SIMS:

Yes. That is to replicate the coin envelope.

574 MR. SCHECK:

All right. And on the upper left-hand--well, I guess it is the upper right-hand corner of the screen, we see another one of those blue hospital blankets?

575 MR. SIMS:

Yes.

576 MR. SCHECK:

And what is on that?

577 MR. SIMS:

Excuse me. Well, that would now contain the--that orange object is a test-tube rack and soap. As I process these test-tubes, I would place each tube individually into that rack. In other words, once you put a stain swatch into a test-tube, then it is capped and placed into that rack, so it is out of the way of the other material. And then also on there you can see a--this is another little chem wipe that has a little blue plastic tube popper on it. That is used to pop these tubes open so that that way you don't do it with your glove; you do it with the tube popper. And then finally I think I'm laying out another chem wipe that would have the cap, unused tubes. In other words, where I would get the new tubes from, because those come out of an autoclave jar at one point and you would lay some of those out.

578 MR. SCHECK:

You just used the word "autoclave." could you tell the jury what an autoclave is?

579 MR. SIMS:

Yes. It is a process whereby reagents and equipment are--is steam sterilized. In other words, it takes things up to a very high temperature to sterilize.

580 MR. SCHECK:

And the purpose of that is?

581 MR. SIMS:

Well, the purpose of that is to destroy biological material and to break DNA down into various small--very, very small fragments.

582 MR. SCHECK:

Helps prevent cross-contamination?

583 MR. SIMS:

Contamination, yes.

584 MR. SCHECK:

Okay. Now, let's go back to the--you say you have a scissors in your hand?

585 MR. SIMS:

Yes.

586 MR. SCHECK:

That is in your right hand? That is in your left hand?

587 MR. SIMS:

That would be my forceps.

588 MR. SCHECK:

You were asked some questions on direct examination about your forceps. Sometimes people call them tweezers?

589 MR. SIMS:

Yes.

590 MR. SCHECK:

Now, are your tweezers serrated?

591 MR. SIMS:

No.

592 MR. SCHECK:

They are like the tweezer or the forceps that jewelers use, they are ground down, correct?

593 MR. SIMS:

Yes, they are like those.

594 MR. SCHECK:

All right. And it is your understanding that forensic DNA scientists that do the work you do will employ such ground down forceps?

595 MR. SIMS:

Yes. That is not just DNA; that is from conventional serology days.

596 MR. SCHECK:

Conventional serology days?

597 MR. SIMS:

Yes.

598 MR. SCHECK:

It is a general practice among criminalists to avoid handling samples with serrated tweezers because the problem with serrated tweezers is that you can get--they are harder to clean?

599 MR. SIMS:

They are harder to clean, yes.

600 MR. SCHECK:

Okay. So please go on and tell us about what you are doing there.

601 MR. SIMS:

Well, I am just proceeding to cut into this sample is what I would be doing, and I think that is it.

602 MR. SCHECK:

Okay. Great. Let's move on to C.

603 MR. SIMS:

Okay.

604 MR. SCHECK:

What are you doing here?

605 MR. SIMS:

There you can see the tap is running and I am washing--washing my forceps.

606 MR. SCHECK:

What are you washing them in at that point?

607 MR. SIMS:

Just tap water. In other words, a big gush of water to get any of the bulk material off.

608 MR. SCHECK:

All right. So you start with the water to get the bulk material off; is that correct?

609 MR. SIMS:

That's correct.

610 MR. SCHECK:

Let's move to D. What are you doing in D?

611 MR. SIMS:

I'm wiping my forceps with a chem wipe.

612 MR. SCHECK:

What are you doing in E?

613 MR. SIMS:

Now, at this point this is the next part of the cleaning process where I'm actually rinsing them down with a little spray bottle of alcohol.

614 MR. SCHECK:

And what are you doing in F?

615 MR. SIMS:

This--this is the flaming process. Whenever that bunsen burner was lit, people in the laboratory knew that Dr. Blake and I were working together, but that is used to what we call fire or flame the actual tools and that is sort of a final ultimate killer of anything. I mean, it would certainly carbonize any biological material that may be left over.

616 MR. SCHECK:

And you would do this between each item?

617 MR. SIMS:

Yes, and that would be even between each substrate control, of course, too.

618 MR. SCHECK:

Between--you go from specimen and you would go through this cleaning procedure?

619 MR. SIMS:

Yes.

620 MR. SCHECK:

Including the last part of the autoclaving or using the bunsen burner?

621 MR. SIMS:

Yes.

622 MR. SCHECK:

And then you would move to the specimen or specimen, substrate control, you clean in between?

623 MR. SIMS:

Yes.

624 MR. SCHECK:

And the last picture, which I know you didn't want me to show, that is you in the lab, right?

625 MR. SIMS:

Yes. This is a picture of me in the laboratory. That is my U.

626 MR. SCHECK:

Okay. Thank you.

627 THE COURT:

That is your U?

628 MR. SIMS:

Yes. The shape of the bench is a U, so we call those U's.

629 MR. SCHECK:

What is our timing? I can't even remember. Did we take a break or are we moving right through?

630 THE COURT:

We are moving along. 4:30.

631 MR. SCHECK:

Okay.

632 (Brief pause.)
633 (Discussion held off the record between Defense counsel.)
634 MR. SCHECK:

Let's now move to the Bundy blood drops.

635 MR. SIMS:

Okay.

636 MR. SCHECK:

Now, plastic bags. In your opinion, sir, putting a wet swatch--swatches in a plastic bag that folds over and then putting that plastic bag in a coin envelope, putting it on--on the floor of a crime scene truck for seven hours in the month of June--I won't say anything about--just make assumptions about the temperature being something on the order of in the sixties in Brentwood--

637 MR. SIMS:

I grew up in L.A. So I know--I know what June is like. It is usually a little overcast part of the morning.

638 MR. SCHECK:

Why don't we assume it is about 11:00 or twelve o'clock in the afternoon?

639 MR. SIMS:

Okay. The skies are starting to lighten up, people are heading for the beach.

640 MR. SCHECK:

And it is in a crime scene truck.

641 MR. SIMS:

Okay.

642 MR. SCHECK:

And it is there for seven hours.

643 MR. SIMS:

Okay.

644 MR. SCHECK:

Before opened.

645 MR. SIMS:

Okay.

646 MR. SCHECK:

Would you agree that putting swatches in a plastic bag, wet blood swatches in that fashion would have the effect of degrading the DNA in those samples?

647 MR. HARMON:

Objection, it is beyond the scope.

648 THE COURT:

Overruled.

649 MR. SIMS:

Provided that there was some bacterial action, for example, that came with the substrate material, yes, that could get that process going.

650 MR. SCHECK:

And the bacterial agents could be on--you saw some pictures on direct examination about the locations of items 47, which was photo no. 117, 48, photo no. 118, 49, photo no. 119, 50, photo no. 120 and 52, I think photo no. 122. You saw those?

651 MR. SIMS:

Yes.

652 MR. SCHECK:

Those blood drops, right?

653 MR. SIMS:

Yes.

654 MR. SCHECK:

You saw the substrates?

655 MR. SIMS:

Yes.

656 MR. SCHECK:

Would you have a reasonable expectation that those--that swatches made from those blood drops would contain biological--bacterial agents that when put--those swatches put in the plastic bag, kept there for seven hours, moist and wet, would begin a process of bacterial degradation?

657 MR. SIMS:

Yes. In other words, if this is a blood sample, then the bacteria would feed on the blood, and yes.

658 MR. SCHECK:

In your opinion is a sound practice to collect wet blood swatches of this kind containing from substrates that have some dirt, put them in plastic bags, such--in the truck in my hypothetical for seven hours? Is this a sound practice?

659 MR. SIMS:

I--I don't think it is a good idea to leave them that long.

660 MR. SCHECK:

Because that could have the effect of causing severe degradation of the samples?

661 MR. SIMS:

Well, it could certainly lead to degradation. The severity I'm not sure of.

662 MR. SCHECK:

Well, because it is hard to predict exactly how extensive the process of degradation might be?

663 MR. SIMS:

Well, I don't know if it is that hard to predict. I mean, bacteria have certain growth cycles and people have characterized these things quite well, so I think you could do the experiment. I think you just don't know exactly how much is in the starting material. That is what would be hard to predict.

664 MR. SCHECK:

You conducted yield gels of the blood drops from Bundy?

665 MR. SIMS:

Yes.

666 MR. SCHECK:

And the results of your yield gels indicated that they contained lots of bacterial DNA?

667 MR. SIMS:

Well, that is--that is what it suggested, although once you keep in mind we did not do a specific test for bacteria, but that is what I interpreted to be the most likely cause.

668 MR. SCHECK:

In these yield gels I think--did you see that part of Dr. Cotton's testimony where she put a yield gel up there for the jury?

669 MR. SIMS:

I may have seen that, yes.

670 MR. SCHECK:

All right.

671 MR. SIMS:

I think I did.

672 MR. SCHECK:

That is one of those gels where they have some bands that are standards?

673 MR. SIMS:

Yes.

674 MR. SCHECK:

That have a certain degree of intensity?

675 MR. SIMS:

Yes.

676 MR. SCHECK:

And then you compare the smears in the lanes for the specimens to the standards?

677 MR. SIMS:

Yes.

678 MR. SCHECK:

And sometimes at the bottom of those bands there is something that are called plasmids?

679 MR. SIMS:

Yes. I--I think those may be plasmids, although I'm not sure those are plasmids.

680 MR. SCHECK:

Why don't you tell the jury what a plasmid is.

681 MR. SIMS:

Yes. A plasmid is a relatively small piece of circular DNA that is usually found inside a bacterium. It is separate from the bacterial DNA, but it goes along for the ride with the bacterium.

682 MR. SCHECK:

On the yield gels, when one can identify areas that look like plasmid bands--

683 MR. SIMS:

Well, I'm--the point is I know the bands you are speaking of and I believe they are bacterial origin. Whether they are plasmids or not I'm not sure.

684 MR. SCHECK:

But those bands indicate to you that there was substantial bacterial degradation in the Bundy blood drops?

685 MR. SIMS:

Well, that would suggest to me that there is substantial bacteria. For example, when we look at a vaginal swab from a case, you will frequently see bacteria, but that doesn't mean that the female's DNA is degraded.

686 MR. SCHECK:

All right. Now, after the yield gel for these Bundy drops, you conducted something that you described before as a southern transfer process?

687 MR. SIMS:

Yes.

688 MR. SCHECK:

And that was done to determine if you could identify the amount of human DNA that were in these samples?

689 MR. SIMS:

Yes.

690 MR. SCHECK:

And that can't--that--and you were able to get some--and then you did what is known as a slot-blot?

691 MR. SIMS:

Yes.

692 MR. SCHECK:

Did you do that before--I think you did that before or after the southern transfer?

693 MR. SIMS:

One of the times we did it after. I think another time we may have done it before.

694 MR. SCHECK:

Are you finished? But the slot-blot is a way of determining the amount of human DNA--

695 MR. SIMS:

Yes.

696 MR. SCHECK:

--in the specimen?

697 MR. SIMS:

Yes.

698 MR. SCHECK:

And so what we had in these Bundy blood drops was a substantial amount of bacterial DNA?

699 MR. SIMS:

Yes.

700 MR. SCHECK:

And some amount of human DNA?

701 MR. SIMS:

Yes.

702 MR. SCHECK:

And from those tests you can't tell how the amount of human DNA got there?

703 MR. SIMS:

That's correct.

704 MR. SCHECK:

Now, let's talk about how much human DNA you were able to identify in these samples.

705 MR. SIMS:

Okay.

706 MR. SCHECK:

Now, for sample 47 you received two swatches?

707 MR. SIMS:

I believe that's correct, but I would like to check my notes on that point.

708 MR. SCHECK:

All right. If I may approach the witness, I have a chart that might assist him.

709 THE COURT:

Do you want to show that to Mr. Harmon?

710 MR. HARMON:

I have not seen that.

711 MR. SCHECK:

It is my own work notes, but I will show it to him.

712 THE COURT:

If you are going to show it to the witness--

713 MR. SCHECK:

That's quite correct.

714 MR. HARMON:

Could I get a copy of this?

715 MR. SCHECK:

Sure.

716 THE COURT:

I have never seen it before. Could I have a chance to review it, too, your Honor?

717 THE COURT:

Sure. Ms. Robertson, do you want to--

718 MR. SCHECK:

You know what, your Honor, just to save time, rather than do that--

719 MR. SCHECK:

You are not going to take my word what is on this chart, are you? You are going to look it up in your own notes?

720 MR. SIMS:

Mr. Scheck, I would take your word for anything. I will look it up.

721 MR. SCHECK:

Look it up.

722 MR. SIMS:

But just to make sure we are connecting here, now, this was with regards to no. 47?

723 MR. SCHECK:

47.

724 MR. SIMS:

Okay. I had, by the way, prepared a little spread sheet that--just as a roadmap to my notes. That is what I'm looking at to find these things.

725 MR. SCHECK:

Maybe I could look at that?

726 MR. SIMS:

Sure.

727 (Brief pause.)
728 MR. SCHECK:

So you received two swatches?

729 MR. SIMS:

Yes.

730 MR. SCHECK:

And they weighed 8.5 milligrams?

731 MR. SIMS:

This is now no. 47?

732 MR. SCHECK:

47.

733 MR. SIMS:

Okay. The--that would be correct.

734 MR. SCHECK:

And the weight extracted by you was 4.7 milligrams?

735 MR. SIMS:

Yes, I took the larger piece.

736 MR. SCHECK:

And you got 4.34 nanograms of human DNA?

737 MR. SIMS:

I'm sorry, you asked me how many--what was the quantity?

738 MR. SCHECK:

4.34 of the slot-blot?

739 MR. SIMS:

That sounds about right. I had about 3.8 after--after I did the quantitation. When Dr. Blake and I would review these quantitations, I went back and figured out--he went back and figured out the total yield, I believe, is what my notes would reflect how much was left after I had done the quantitation because that is what I had left to work with, about four nanograms?

740 MR. SCHECK:

4.34?

741 MR. SIMS:

I would go for that.

742 MR. SCHECK:

Now, let's assume that there were five other swatches associated with sample 47, weighing 28 milligrams, and let's further assume that the biological matter, the blood, was randomly or evenly distributed over those other swatches.

743 MR. SIMS:

That is--that is quite an assumption sometimes if you are talking about uniformity.

744 MR. SCHECK:

Just assume that--

745 MR. HARMON:

Objection, improper hypothetical. There is no foundation for it.

746 THE COURT:

Overruled.

747 MR. SCHECK:

And let's further assume that--maybe this will be the easiest assumption to just make and quantify. Let's just assume that out of all the material associated with sample 47, all seven swatches, you extracted 12.9 or 13 percent of the DNA.

748 MR. SIMS:

Okay.

749 MR. SCHECK:

Would you project then that associated with all the swatches there would be about 33.6 nanograms?

750 MR. SIMS:

Without a calculator I wouldn't assume that.

751 MR. SCHECK:

About in that area?

752 MR. SIMS:

Okay. Say again. Your amount was?

753 MR. SCHECK:

That you had about 12.9 or 13 percent of the sample.

754 MR. SIMS:

Okay.

755 MR. SCHECK:

That if we were to calculate--thank you, your Honor--if we were to calculate the total amount of human DNA in the sample, it would come to something on the order of 33.6 nanograms?

756 MR. SIMS:

Well, that sounds about right.

757 MR. SCHECK:

All right.

758 MR. SIMS:

It would be about ten times what I had, so yeah.

759 MR. SCHECK:

Let's try sample 48.

760 MR. SIMS:

Okay.

761 MR. SCHECK:

You received two swatches weighing 8.1 milligrams, extracted 6.5 and got a slot-blot of 4 nanograms.

762 MR. SIMS:

Again let me check that.

763 (Brief pause.)
764 MR. SIMS:

Okay. This is item number--

765 MR. SCHECK:

48.

766 MR. SIMS:

--48. Okay. And you said about 4; is that right?

767 MR. SCHECK:

4.

768 MR. SIMS:

Okay.

769 MR. SCHECK:

So based on the weight, assuming that you extracted eighty percent of the total amount in those two swatches, that if you were to project total amount of DNA on the swatches, it would be 5 nanograms?

770 MR. SIMS:

Yeah. I can eyeball that.

771 MR. SCHECK:

All right. Let's turn to sample 49.

772 MR. SIMS:

Okay.

773 MR. SCHECK:

You received about two swatches in I think something like a thread that weighed 4.6 milligrams altogether?

774 MR. SIMS:

Well, there were--keep in mind on 49 there were two different submissions on that, but you are talking about the initial one?

775 MR. SCHECK:

Yeah. Well, to cut to the bottom line, let's assume that there were altogether five swatches--

776 MR. SIMS:

Okay.

777 MR. SCHECK:

--associated with this sample weighing a total of--and--19.6 milligrams you extracted 2.5 milligrams and got a quantity of .24 nanograms, which would mean that your quantification represents 13 percent of the total sample extracted and therefore the total amount of human DNA in the sample would be on the order of 1.8 nanograms?

778 MR. SIMS:

That sounds about right, yes.

779 MR. SCHECK:

Let's turn to item 50.

780 MR. SIMS:

Okay.

781 MR. SCHECK:

You received one swatch weighing 7.2 milligrams.

782 MR. SIMS:

Okay.

783 MR. SCHECK:

Assume that this is a total of four swatches with a total weight of 22.2 milligrams.

784 MR. SIMS:

Okay.

785 MR. SCHECK:

The weight of your extraction is 3.6.

786 MR. SIMS:

Wait. I'm sorry. Back up. There were a total of how many swatches?

787 MR. SCHECK:

4.

788 MR. SIMS:

4, okay, and mine was 7.2?

789 MR. SCHECK:

Right.

790 MR. SIMS:

Okay.

791 MR. SCHECK:

And the total weight is 22.2 mil?

792 MR. SIMS:

Well, wait if there is 4 and I've got 7.2? Doesn't it have to be closer to about 30 milligrams?

793 MR. HARMON:

Your Honor, objection. Is this a hypothetical? And if it is, there is no foundation for it. It is improper hypothetical.

794 THE COURT:

Well, it is a little late now that we've gone through several.

795 MR. HARMON:

Well, better late than never, your Honor.

796 THE COURT:

That is true. Why don't you reask the question and clarify with Mr. Sims.

797 MR. SCHECK:

Why don't we just--the weight you extracted was 3.6 milligrams?

798 MR. SIMS:

Oh, okay. What I extracted was 3.6. Okay. That is where--okay.

799 MR. SCHECK:

And assume that 16 percent of the total--

800 MR. SIMS:

Okay.

801 MR. HARMON:

Objection. Base--is this a hypothetical?

802 MR. SCHECK:

I'm asking him to assume that.

803 MR. HARMON:

There is no basis for it. Objection on that basis.

804 THE COURT:

Sustained.

805 MR. SCHECK:

Your Honor, can we--there is--

806 (Discussion held off the record between Defense counsel.)
807 MR. SCHECK:

You are aware that all the swatches were weighed in this case at your laboratory, at Cellmark diagnostics?

808 MR. HARMON:

Objection. Calls for hearsay, compound.

809 THE COURT:

Sustained.

810 MR. SCHECK:

Your Honor, subject to connect--

Temperature

tense

Key Quotes (5)

Gary Sims
I was trying to save the taxpayers a little money by washing them.
Sims deflects with humor when pressed about glove-changing practice, but the underlying admission — that he did wash or change gloves between each swatch — is a standard Scheck is using to judge LAPD's conduct.
Lance A. Ito
This witness has never adopted your characterization of aerosol. Airborne particles perhaps; not aerosol.
Ito corrects Scheck mid-examination, protecting the record against imprecise characterizations of Sims's testimony.
Barry Scheck
Airborne articles represented by the clip art of fireworks?
Reveals Scheck was using a visual demonstrative (apparently with clip art) to organize contamination risk factors for the jury; Sims responds 'I like that,' a rare moment of levity.
Gary Sims
No, I don't recall seeing 'A.M.' on any of those bindles.
Sims confirms he saw no Andrea Mazzola initials on the LAPD bindles — significant given questions about who actually collected and handled the swatches.
Gary Sims
It would be weird that I would ever have a pencil around in my lab.
Underscores the protocol requiring ink documentation; LAPD bindles bore pencil initials, a direct contrast Scheck is building toward.

Evidence (5)

Defense 1160-A through F
Photographs of Gary Sims in his DOJ laboratory demonstrating the sample handling and instrument cleaning process he used in the case, staged at Dr. Blake's request.
introduced and discussed in detail
Informal
LAPD bindles containing blood swatches — noted to bear pencil initials (most labeled 'D.F.'), lacking June dates, and lacking any 'A.M.' (Andrea Mazzola) initials.
discussed, used to challenge LAPD documentation standards
Informal
NRC/NAS book 'DNA Technology in Forensic Science,' specifically chapter 4 'Ensuring High Standards' page 102-103 on laboratory accreditation.
attempted introduction as authoritative reference; Sims said he had not relied on that section
Informal
FBI guidelines for collection of DNA evidence, co-authored by Dr. Henry Lee.
discussed; Sims confirmed he recalled no statement in it he disagreed with
Informal
Visual demonstrative exhibit (described as having clip art of fireworks and a white dividing line) organizing contamination risk factors and transfer mechanisms.
used throughout examination to structure cross-examination questions

Notable Exchanges (4)

Barry ScheckGary Sims
Scheck walks Sims through a multi-step instrument cleaning protocol (water rinse, chem wipe, alcohol spray, bunsen burner flaming) depicted in Defense photos A-F, getting Sims to confirm he performed all steps between every specimen and substrate control — implicitly contrasting with LAPD procedures.
strategic
Barry ScheckGary SimsLance A. Ito
Ito intervenes to correct Scheck's use of 'aerosol,' clarifying Sims only agreed to 'airborne particles.' Scheck immediately adapts, asking about 'airborne particles represented by the clip art of fireworks,' which amuses Sims.
revealing
Lance A. ItoBarry Scheck
When Scheck attempts to use the NRC book chapter by chapter, Ito warns him he is 'not overly optimistic on this line of questioning' and tells him to move on, prompting Scheck to negotiate for just one more question.
procedural
Barry ScheckGary Sims
Scheck establishes that processing 21 samples from start to result took approximately 7 working days across multiple sessions in September, then asks if one could imagine doing it in a single day — objection sustained before Sims answers, but the implication for the jury is clear.
strategic

Light Moments (4)

Gary Sims
When asked if he changed gloves between swatches, Sims said he washed them instead, adding 'I was trying to save the taxpayers a little money by washing them.'
Gary Sims
After Ito corrected 'aerosol' to 'airborne particles,' Scheck asked about 'airborne particles represented by the clip art of fireworks' — Sims responded 'I like that.'
Barry Scheck
Scheck teased that photograph A is 'a surprise' when Ito questioned why the exhibit sequence started with B.
Lance A. Ito
When Sims described the U-shaped bench layout, Ito asked 'That is your U?' with apparent bemusement.

Credibility Attacks (2)

⚔ LAPD criminalists (Dennis Fung / Andrea Mazzola)
expert comparison / standard-setting
Scheck used Sims as a vehicle to establish best-practice standards (ink initials, glove changes, paper changes, instrument flaming, 7-day processing time) that LAPD demonstrably did not follow — pencil initials on bindles, no Mazzola initials, no June dates on most bindles.
⚔ LAPD evidence collection process
omission / documentation failure
Sims confirmed that protocol requires notes to accurately reflect what was done, recorded in ink, at the time work is performed — establishing a standard against which LAPD pencil-initialed, undated bindles fall short.

Witness Demeanor

(Witness complies.) — reads passage from NRC book silently when asked
(Nods head up and down.) — Scheck's own stage direction substituting for verbal questions at several points

Objections

17 objections (7 sustained, 9 overruled)
Proceeding 6095 • 810 utterances • Prosecution witness
Criminal Trial
Department 103
⚖️ Start
📂 MAY 18, 1995 📄 Cross-examination of Gary Sims
MAY 18, 1995 KRT DvH TD