Cross-examination of Gary Sims (part 2)

📄 Cross-examination of Gary Sims (part 2) — Monday, May 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\22\CROSS-EXAMINATION-OF-GARY-SIMS.DOC

TRIAL

▲ Day 79 of 167

◀ Court reconvenes Sidebar: exhibit admissibility ▶

Witness: Gary Sims
Examiner: Barry Scheck
Called by: Prosecution • Date: Monday, May 22, 1995 • Utterances: 318

Barry Scheck cross-examines Gary Sims, a DOJ forensic scientist, about DNA evidence collected from O.J. Simpson's Bronco. He establishes that blood stains sampled on September 1st contained dramatically more DNA than those collected from the same areas on June 14th — in one comparison, 40.5 nanograms versus 2.6 — implying contamination or tampering. He then attacks the DQ-Alpha typing of stain 31, arguing that the lab's own allelic control showed a spurious 1.3 dot, which per the lab's protocol should have required the analysis to be repeated.

# 1 MR. SCHECK:

Thank you.

# 2 MR. SCHECK:

When we last left we were discussing areas, as you recall. I would like to first put up on the screen what has already been marked as Defendant's 1087, all right? Now, Mr. Sims, I direct your attention to the smear that--that you see where "30" is in this photograph?

# 3 MR. SIMS:

Yes, I see the post-it. It looks like there is 30.

# 4 MR. SCHECK:

Right. So starting to--as I'm looking at it and the jury is looking at it, all right, the upper left-hand--the--from the left going downward to the right, you see that streak where the arrow is pointing from there down to where the "30" is. All right?

# 5 MR. SIMS:

Yes.

# 6 MR. SCHECK:

All right. Let's call that the area of 30 and 303 as being in the same area. Okay?

# 7 MR. SIMS:

Just, in other words, we are assuming it is right in that same area.

# 8 MR. SCHECK:

In that same area, okay, and let me direct your attention to 31.

# 9 MR. SIMS:

Okay.

# 10 MR. SCHECK:

Maybe we could have the arrow go there as well. And--and that area would be--starting at the top it is a little shadowed there, moving vertically down.

# 11 MR. SCHECK:

Okay?

# 12 MR. SIMS:

Okay.

# 13 MR. SCHECK:

And let's assume that that 31 area is the same as 304. And now I would ask you to look at another photograph that we would ask be marked Defendant's next in order as 1167.

# 14 (Deft's 1167 for id = photograph)

# 15 THE COURT:

All right. 1167 appears to be a photograph of the console on butcher paper.

# 16 MR. SCHECK:

Yes.

# 17 MR. SCHECK:

And I would like you to assume that last photograph I showed you, 1087, was a photograph taken on June 14th.

# 18 MR. SIMS:

The one you just showed me before?

# 19 MR. SCHECK:

Yes, previously?

# 20 MR. SIMS:

Okay.

# 21 MR. SCHECK:

Now, this is a photograph taken on September 1st.

# 22 MR. SIMS:

Okay.

# 23 MR. SCHECK:

And I would like to--why don't you assume that 306 is just a--is a hair and is not a stain, okay?

# 24 MR. SIMS:

Okay.

# 25 MR. SCHECK:

And looking at the area again, 303, you see the same area that we pointed out on the June 14th photograph starting from the upper left-hand moving to the right, okay?

# 26 MR. HARMON:

Objection. That is vague and misstates the testimony.

# 27 THE COURT:

Sustained. Rephrase the question.

# 28 MR. SCHECK:

All right.

# 29 MR. SCHECK:

You see where the "303" label is?

# 30 MR. SIMS:

Yes.

# 31 MR. SCHECK:

All right. I would like you to look at the area to the left of 303 and assume that is the same area as 30 on the June 14th photograph.

# 32 MR. HARMON:

Objection, that is vague and it may be inconsistent with the testimony in this case as it is vague, your Honor.

# 33 MR. SCHECK:

I don't think so.

# 34 THE COURT:

Sustained.

# 35 MR. SCHECK:

All right. You see an area designated "303"?

# 36 MR. SIMS:

Yes.

# 37 MR. SCHECK:

All right. You see an area designated "304"?

# 38 MR. SIMS:

Yes.

# 39 MR. SCHECK:

All right. Now--you see an area below designated--the bottom of that designated "305"?

# 40 MR. SIMS:

Yes.

# 41 MR. SCHECK:

All right. Now--now, with respect--looking at the result board, 2--

# 42 THE COURT:

People's 260.

# 43 MR. SCHECK:

The stain collected as no. 30 which we have asked you to assume was done on June 14th, which I have already asked you to assume is the same area as the--let's just start this. 30 collected on June 14th, umm, you had a DQ-Alpha typing of 1.1, 1.2?

# 44 MR. SIMS:

Yes.

# 45 MR. SCHECK:

And D1S80 typing of 24, 25?

# 46 MR. SIMS:

Yes.

# 47 MR. SCHECK:

Which you said excluded Ronald Goldman?

# 48 MR. SIMS:

Yes.

# 49 MR. SCHECK:

And excluded Nicole Brown Simpson?

# 50 MR. SIMS:

Yes.

# 51 MR. SCHECK:

And it was only consistent with Mr. Simpson?

# 52 MR. SIMS:

Well, or someone with his type.

# 53 MR. SCHECK:

With his genotype?

# 54 MR. SIMS:

Yes.

# 55 THE COURT:

Excuse me, excuse me. Counsel--

# 56 MR. SCHECK:

Yes.

# 57 THE COURT:

--you are talking over his answer again. The court reporters are almost in rebellion.

# 58 MR. SCHECK:

I'm sorry. I'm rushing.

# 59 MR. SCHECK:

The--looking at 303, however, collected on September 1st, do you see that?

# 60 MR. SIMS:

Yes.

# 61 MR. SCHECK:

There you found on DQ-Alpha 1.1, possibly a 1.2, a 1.3 and a 4?

# 62 MR. SIMS:

That's correct.

# 63 MR. SCHECK:

And a D1S80 of 24, 25 and 18?

# 64 MR. SIMS:

Yes.

# 65 MR. SCHECK:

Then on June 14th, as far as 31 is concerned, which would be collected--31, you recall that stain?

# 66 MR. SIMS:

Yes, yes.

# 67 MR. SCHECK:

All right. On June 14th you have a 1.1, 1.2 and what you are calling a weaker 1.3, 4, correct?

# 68 MR. SIMS:

Yes.

# 69 MR. SCHECK:

And a D1S80 of 24, 25?

# 70 MR. SIMS:

Yes.

# 71 MR. SCHECK:

All right. But as far as on 304, which I'm asking you to assume was collected from the same area on September 1st--

# 72 MR. HARMON:

Objection, "Same area" as vague. Misstates the testimony.

# 73 THE COURT:

Sustained.

# 74 MR. SCHECK:

All right. 304, the area designated 304--

# 75 MR. SIMS:

Okay.

# 76 MR. SCHECK:

--here you have an additional DQ-Alpha reading of--a D1S80 reading of 18?

# 77 MR. SIMS:

Now, this is 304 compared to--

# 78 MR. SCHECK:

31.

# 79 MR. SIMS:

31, yes.

# 80 MR. SCHECK:

And why don't we assume that 304 is from the same general area as 31.

# 81 MR. SIMS:

Now, again I guess we get into now the same general area. I think I understand that.

# 82 MR. SCHECK:

The area that you--that we pointed to--

# 83 MR. SIMS:

But again in very broad terms--

# 84 MR. SCHECK:

Yes.

# 85 MR. SIMS:

--it is not necessarily the same area.

# 86 MR. SCHECK:

And on the 304 stain collected on September 1st, now the list of people not excluded extends, in addition to Nicole Brown?

# 87 MR. SIMS:

Yes.

# 88 MR. SCHECK:

And then on stain 305, you had the same genotypes?

# 89 MR. SIMS:

Yes, that's correct, on 304 and 305.

# 90 MR. SCHECK:

All right. Now--

# 91 MR. SIMS:

Although I would like to add, too, there was a little more definition I think in discriminating the mixture on the DQ-Alpha. You will notice it says weaker 1.3, 4, and on 305 as opposed to 304. The same alleles are present, but there is a little distinction there as far as the patterns.

# 92 MR. SCHECK:

In your examination of those photographs of the smears on--stains on June 14th and the photographs you saw of September 1st, could you tell whether there was more blood on the console on September 1st than there was on June 14th, just from looking at the photograph?

# 93 MR. HARMON:

Objection, calls for speculation and inadequate foundation.

# 94 THE COURT:

Sustained.

# 95 MR. SCHECK:

Well, in your DNA testing did you find more DNA in 303 than in 30?

# 96 MR. SIMS:

I would have to check my quantitations on that. It is 304 versus 3--

# 97 MR. SCHECK:

303 versus 30.

# 98 MR. SIMS:

303 versus 30. Give me one minute, please.

# 99 (Brief pause.)

# 100 MR. SIMS:

Yes, I have reviewed the notes and I did find more in 303 than 30.

KEY QUOTE

# 101 MR. SCHECK:

30 you got by your slot-blot 2.6 nanograms?

# 102 MR. SIMS:

Yes, something like that. Again that may be after quantitation, but it is in that ballpark.

# 103 MR. SCHECK:

And 303, 40.5 nanograms?

# 104 MR. SIMS:

Again it is in that ballpark.

# 105 MR. SCHECK:

With respect to 31, something on the order of 2.1 nanograms?

# 106 MR. SIMS:

Again I would like to check my notes.

# 107 MR. SCHECK:

On your slot-blot?

# 108 MR. SIMS:

I'm sorry, you said how much?

# 109 MR. SCHECK:

2.1 on your slot-blot?

# 110 MR. SIMS:

That's correct, after quantitation.

# 111 MR. SCHECK:

And 3--as far as 304 is concerned, 29 nanograms?

# 112 MR. SIMS:

Let me check.

# 113 (Brief pause.)

# 114 MR. SIMS:

That is about right, yes.

# 115 MR. SCHECK:

Now, in your opinion, as a forensic scientist, it is important to preserve the integrity of biological evidence whether it is found in an automobile or on a street?

# 116 MR. SIMS:

Yes.

# 117 MR. SCHECK:

And it is a good practice--withdrawn. Is it a good practice to permit individuals into an automobile for close to--for over two months before swatching the inside of an area for biological material?

# 118 MR. HARMON:

Your Honor, that is argumentative.

# 119 THE COURT:

Sustained.

# 120 MR. SCHECK:

Well, do you think that it would be a good practice, in your opinion of forensic scientists, to permit a car to be burglarized before you go in and swatch biological material from the area?

KEY QUOTE

# 121 MR. HARMON:

Objection, your Honor.

# 122 THE COURT:

Sustained, sustained. The jury is to disregard that characterization.

# 123 MR. SCHECK:

Well, do you agree that chain of custody principles apply to cars and their interiors, just like any other piece of evidence?

# 124 MR. SIMS:

Yes.

# 125 MR. SCHECK:

Now, looking just at the materials that I have asked you to assume were collected on June 14th, that would include 30 and 31 from the console, correct?

# 126 MR. SIMS:

Okay.

# 127 MR. SCHECK:

And 29 from the steering wheel, correct?

# 128 MR. SIMS:

Okay.

# 129 MR. SCHECK:

Now, with respect to 31, there was a problem, was there not, with the DQ-Alpha analysis of that stain?

# 130 MR. SIMS:

With--now, this is with regards to 31?

# 131 MR. SCHECK:

31.

# 132 MR. SIMS:

I don't--I don't think there was a problem. I think that was what I would classify as a tough call. We had to take a hard look at it, but I don't think there was a problem with the analysis.

# 133 MR. SCHECK:

Before we examined what you have said was a tough call, would you not agree that with respect to the samples that were collected on June 14th, that there is no DQ-Alpha typing results of a 1.3 and a 4, putting aside 31, from any of the samples collected on June 14th, be it on the console or any other place in the Bronco?

# 134 MR. SIMS:

Well, as represented by what is here?

# 135 MR. SCHECK:

Yes.

# 136 MR. SIMS:

And there is--say it again. There is no--

# 137 MR. SCHECK:

There is no DQ-Alpha typing results of a 1.3 allele and a 4 allele from samples collected on June 14th, be it on the console or any other place in the Bronco, and I'm excluding here 31?

# 138 MR. SIMS:

Well, to my knowledge on those samples that's correct.

# 139 MR. SCHECK:

Okay. Now, let's examine 31, which you have characterized as a tough call.

# 140 MR. SIMS:

Yes.

# 141 THE COURT:

Mr. Scheck, you need to flip that around.

# 142 MR. SCHECK:

I'm sorry.

# 143 THE COURT:

Unless you are going to use it immediately.

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

# 145 MR. SCHECK:

I would ask that this be marked Defendant's next in order.

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

# 147 MR. SCHECK:

I show what you has been marked as Defendant's 1166.

# 148 MR. SCHECK:

Do you recognize that as a photograph of DQ-Alpha strips for analyses you made of stains from the Bronco?

# 149 MR. SIMS:

This, I believe, is a photograph that Dr. Blake took of the--

# 150 MR. SCHECK:

Do you have one of your own there?

# 151 MR. SIMS:

Yes, I do.

# 152 MR. SCHECK:

May I see that?

# 153 (Witness complies.)

# 154 MR. SCHECK:

Do you see any differences between those photographs? Do you have a preference as to which one we use?

# 155 MR. SIMS:

I--I would have to look at it for a minute. I recall Dr. Blake was present for this reading. I don't know if he took the photo at that exact time, but I think he did.

# 156 MR. SCHECK:

Well, the photograph that I showed you is a little larger, isn't it?

# 157 MR. SIMS:

Yes, it is an enlargement.

# 158 MR. SCHECK:

Would you, for purposes of analysis, and for being able to show this, do you have any problems, from a scientific point of view, using the photograph I have showed you, and please examine the two of them?

# 159 MR. SIMS:

Yes. Just I would like a second to examine it.

# 160 MR. SCHECK:

Please do.

# 161 (Brief pause.)

# 162 MR. SIMS:

Okay.

# 163 MR. SCHECK:

Okay?

# 164 MR. SIMS:

That is okay.

# 165 MR. SCHECK:

Now, maybe what we could do is you could have your photograph in front of us and we will put 1166 on the elmo. Okay. Now--

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

# 167 THE COURT:

I think we need to back out just a little.

# 168 MR. SCHECK:

I think for--I think for our purposes actually this is the right shot.

# 169 MR. SCHECK:

Now, let me call your attention to what is marked on the right-hand section of the strip, that is called dna-18.

# 170 MR. SIMS:

Okay.

# 171 MR. SCHECK:

Now, that is--that corresponds to LAPD item no. 31?

# 172 MR. SIMS:

Yes.

# 173 MR. SCHECK:

All right. That is the strip where your--the one that up are characterizing as the tough call, correct?

# 174 MR. SIMS:

Yes.

# 175 MR. SCHECK:

And in terms of reading that strip, you see at the 1.3 dot a light dot--would that be--how would you describe that? Faint?

# 176 MR. SIMS:

Well, I would describe it as a dot of about equal intensity to the c dot. When we talked about how important the c dot is and that intensity was scored on that day, that reading as c, and what we do when we do one of these strips is we score the dots in relationship to the c dot, so you first look at the intensity on the c dot and you call that C. It sounds very simple, but anyway, you call that c and then you Judge the relative intensities of the other dot, c plus or c minus, and we also have a category where we call them very faint or trace, so that was scored as a C.

# 177 MR. SCHECK:

Well, when you scored it, you scored it as about equal to the c dot, correct?

# 178 MR. SIMS:

Yes. It was scored as a C. What we are saying is about equal to the c dot.

# 179 MR. SCHECK:

What you are actually saying is that you feel confident that is right to the 1.3 in what is labeled dna-18, correct?

# 180 MR. SIMS:

Yes.

# 181 MR. SCHECK:

Is less--is--is--is as intense as the c dot?

# 182 MR. SIMS:

Yes. As far as our scoring was concerned, we considered that to be about the same intensity as the c dot.

# 183 MR. SCHECK:

Could a reasonable scientist look at that and say maybe it is a little less intense than the C dot?

# 184 MR. HARMON:

Objection, calls for speculation.

# 185 THE COURT:

Sustained.

# 186 MR. SCHECK:

Well, would you agree that the scoring of a dot that faint is subjective?

# 187 MR. SIMS:

I don't--I don't think it is really subjective in the sense that we are making an objective judgment about that intensity. We are also having a second person read it, so I don't--I don't think it is--it is subjective. I wouldn't use that definition.

# 188 MR. SCHECK:

Well, the--

# 189 MR. SIMS:

We felt it was present.

# 190 MR. SCHECK:

Now, this would be one of those situations where the c dot could be lit up by the primary contributor?

# 191 MR. SIMS:

That's correct.

# 192 MR. SCHECK:

And the c dot is not necessarily indicating anything about whether you are missing dots or alleles from other contributors?

# 193 MR. SIMS:

I can only call what I see.

# 194 MR. SCHECK:

Right. Now, I call your attention to--if we could move the--down a little bit--to the lane that is QC 816.

# 195 MR. SIMS:

Okay.

# 196 MR. SCHECK:

Now, that is the quality control sample that you run?

# 197 MR. SIMS:

Yes.

# 198 MR. SCHECK:

And I realize that it is hard to see on the elmo, but looking at the actual photograph of the dot-blot that you have--

# 199 MR. SIMS:

Yes.

# 200 MR. SCHECK:

--and looking at your own scoring of this, at the 1.3 dot you see a hint or a trace--

# 201 MR. SIMS:

Yes.

# 202 MR. SCHECK:

--of an allele?

# 203 MR. SIMS:

The--the--yes, I think on the--on that particular scoring, the first reader called it a hint. I called it an outline, which means it is even--in my mind even weaker than just a hint, but it is definitely a very, very, very faint reading.

# 204 MR. SCHECK:

But that is on--

# 205 MR. SIMS:

On the elmo, I don't--I don't even think you can really see that.

# 206 MR. SCHECK:

It is hard to--your Honor, we are going to review this and then we are going to show the actual photograph to the jury. It can't be seen the other way.

# 207 THE COURT:

But you need to stop talking at the same time.

# 208 MR. SCHECK:

Okay.

# 209 MR. SCHECK:

Now, let me move you down to the positive control.

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

# 211 MR. SCHECK:

Let me move back a second, and could you, Mr. Harris--actually, first moving back to--if you go up to dna-18--

# 212 MR. SIMS:

Okay.

# 213 MR. SCHECK:

Could you put an arrow by the 1.3 dot there. Up, further up. Right there, (Indicating), underneath that.

# 214 MR. SCHECK:

That is the 1.3 that you are calling in LAPD item 31, correct?

# 215 MR. SIMS:

Yes.

# 216 MR. SCHECK:

Okay. Now, let's move down--take the arrow down to the QC 816 and put it underneath the 1.3 dot. That is the 1.3 dot that you say--one reader scored as a hint and you scored as an outline on your quality assurance sample 816, correct?

# 217 MR. SIMS:

Yes.

# 218 MR. SCHECK:

All right. Now, let's move down a little further on--we got to print that. Okay.

# 219 THE COURT:

May I see your photo, Mr. Sims?

# 220 (Brief pause.)

# 221 MR. SCHECK:

Now, moving down to the next--you see where it says "Positive control"?

# 222 MR. SIMS:

Yes.

# 223 MR. SCHECK:

All right. Now, the positive control is the sample that you run in every strip, correct, every run?

# 224 MR. SIMS:

Yes.

# 225 MR. SCHECK:

And that is supposed to be just a 1.1, 4?

# 226 MR. SIMS:

That's correct.

# 227 MR. SCHECK:

And the positive control in this case was scored as having a hint or a trace of the 1.3 dot?

# 228 MR. SIMS:

Well, again let me look at the actual notes. (Brief pause.)

# 229 MR. SIMS:

Yes, that was scored as a hint.

# 230 MR. SCHECK:

All right. Could we print that as well.

# 231 MR. SCHECK:

Okay. Now, in your protocol you have a section that deals with what's known as the allelic control?

# 232 MR. SIMS:

Yes.

# 233 MR. SCHECK:

And the allelic control in this case would be what's known as the positive control on this run?

# 234 MR. SIMS:

Well, in this--in this particular case. In other words, where we know the type, yes, that is the control for that.

# 235 MR. SCHECK:

Would you even say that the quality control sample, 816, would also be considered an allelic control for this run?

# 236 MR. SIMS:

Well, no. I would consider that a blind because we don't know--the analyst does not know what the correct type of that sample is, so in other words, we have to make a determination and then we submit that for review to see whether or not we made the right call.

# 237 MR. SCHECK:

So--so in other words, in your protocol, when the term "Allelic control" is used, it is only referring to the positive control, not to QC 816?

# 238 MR. SIMS:

Well, I think you are talking the protocol now or the quality assurance--

# 239 MR. SCHECK:

The protocol?

# 240 MR. SIMS:

I don't think we use the term "Allelic control" on the protocol. Can you show me specifically?

# 241 MR. SCHECK:

Yes. Do you have your protocol there?

# 242 MR. SIMS:

If you have a copy, I would appreciate it.

# 243 MR. SCHECK:

I sure do. That would make it faster. And this, Mr. Harmon, is at page 2119 of the materials. It is page 92 of your protocol and it is entitled "Controls for PCR analysis."

# 244 MR. SIMS:

Okay. This is where we had a misunderstanding because this is the quality assurance manual. This is not the DQ-Alpha protocol.

# 245 MR. SCHECK:

Okay.

# 246 MR. SIMS:

That is the distinction.

# 247 MR. SCHECK:

I'm sorry, in your quality assurance manual you have a section that deals with allelic controls?

# 248 MR. SIMS:

Yes.

# 249 MR. SCHECK:

And the allelic controls would be referring to certainly the positive control here?

# 250 MR. SIMS:

Yes.

# 251 MR. SCHECK:

And would it also be--would you also consider QC 816 an allelic control?

# 252 MR. SIMS:

I--I wouldn't use that definition for it, but it is one of the controls we run. Again, it is blind, so you can't--the analyst doesn't know the correct type, so the analyst can't use that information to say, yes, this test is working properly and that is what a control is. That comes later with a review.

# 253 MR. SCHECK:

All right. So just dealing with the positive control then, in your protocol--you rely on this allelic control section of the protocol, do you not?

# 254 MR. SIMS:

Yes, I do.

# 255 MR. SCHECK:

Okay. And in the allelic control section of your protocol does it not state: "This sample" and here we will be talking about the positive control that is depicted on the elmo--"Is a positive control that ensures that the amplification and typing process are working properly. To control for differential amplification the allelic control should include an allele that is sensitive to amplification conditions in this system. For DQ-Alpha a type 1.1, 4 control is to be amplified with each amplification run and typed with each set type," correct?

# 256 MR. SIMS:

That's correct.

# 257 MR. SCHECK:

All that is saying is that that allelic control is what is known as the positive control here, correct?

# 258 MR. SIMS:

Yes.

# 259 MR. SCHECK:

And then at the end of this section of your protocol it goes on to state: "If the allelic control fails to give the correct result, the analysis must be repeated."

# 260 MR. SIMS:

That's correct.

# 261 MR. SCHECK:

And in this instance the allelic control had showed evidence of a 1.3 dot, did it not?

# 262 MR. SIMS:

No. I would say it showed that there was a cross-hybridization, very faint, at that particular location or at least a hint of it.

# 263 MR. SCHECK:

Did it not show the 1.3 dot lighting up at some intensity?

# 264 MR. SIMS:

At that very low level of intensity, yes, there was something there.

# 265 MR. SCHECK:

And it showed the 1.3 dot also lit up on your quality control sample 816?

# 266 MR. SIMS:

Well, again, I think when you say, "Lit up," in other words, do we see a hint of activity there? Yes, we do.

# 267 MR. SCHECK:

Okay. Would you not agree that with respect to the sample 31 or your dna-18, that the 1.3 dot in that sample is also certainly faint?

# 268 MR. SIMS:

Well, I think--I think you are misstating the interpretation of these bands.

# 269 MR. SCHECK:

Well, maybe--

# 270 MR. SIMS:

Or these strips because--

# 271 MR. SCHECK:

Your Honor, I move to strike this answer as not responsive. I asked him a simple question.

# 272 MR. HARMON:

Excuse me, your Honor.

# 273 THE COURT:

No, no, no. Don't interrupt the answer.

# 274 MR. SCHECK:

I asked him if it was faint. That is all I asked him.

# 275 THE COURT:

Is it faint?

# 276 MR. SIMS:

I wouldn't score that as faint, no.

KEY QUOTE

# 277 MR. SCHECK:

All right.

# 278 MR. HARMON:

Can he explain?

# 279 THE COURT:

He will be allowed to and I'm sure you will ask him.

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

# 281 MR. SCHECK:

The last printout is 1166-B.

# 282 THE COURT:

Fine.

# 283 (Deft's 1166-B for id = photograph w/arrows)

# 284 MR. SCHECK:

Now, as far as 1166 is concerned, could you please--your Honor, since these are faint, I would like the jury to see them. Could we mark on the lane that is dna-18 with an arrow, just point an arrow there and indicate--and after that indicate "1.3.".

# 285 (Witness complies.)

# 286 MR. SCHECK:

And then on the sample 816, the quality control, could you put an arrow there and indicate--write down "1.3."

# 287 MR. HARMON:

Excuse me, your Honor. I object to him writing things down that aren't there.

# 288 MR. SCHECK:

No, no. It is just an arrow marking what to look at.

# 289 THE COURT:

That is fine.

# 290 MR. SCHECK:

Go ahead. Would you please mark "1.3."?

# 291 MR. SIMS:

Well, why would I mark 1.3 when I didn't make a determination that there is 1.3?

# 292 MR. SCHECK:

I am only asking you to mark 1.3.

# 293 THE COURT:

Directing your attention to that location.

# 294 MR. SIMS:

Okay.

# 295 MR. SCHECK:

Then on the positive control or the allelic control could you mark the "1.3."

# 296 MR. SIMS:

(Witness complies.) yes, I have done that.

# 297 MR. SCHECK:

Your Honor, could I pass this to the jury?

# 298 THE COURT:

May I see that?

# 299 MR. SCHECK:

Sure.

# 300 THE COURT:

I think we need to do that without the post-its as well.

# 301 (Brief pause.)

# 302 MR. HARMON:

Could we take a look at it, too, your Honor?

# 303 THE COURT:

Sure.

# 304 (Brief pause.)

# 305 MR. HARMON:

I have an objection. He has written something down that is not there.

# 306 THE COURT:

Overruled. It is merely to direct the viewer's attention to that location. Proceed.

# 307 MR. SCHECK:

Actually Mr. Harmon misstates. He says there is something there.

# 308 THE COURT:

Excuse me, counsel. I didn't ask for a comment.

# 309 MR. SCHECK:

All right.

# 310 THE COURT:

Proceed. Hand the exhibit to juror no. 1, please.

# 311 MR. SCHECK:

So you would agree, Mr. Sims, that in terms of--

# 312 THE COURT:

Excuse me, counsel. Do you have my permission to ask another question before you hand--

# 313 MR. SCHECK:

No. My apologies.

# 314 (The exhibit was passed amongst the jurors.)

# 315 MR. SCHECK:

Your Honor, I have been informed, for the record, I should say 1166-A is a printout.

# 316 (Deft's 1166-A for id = photo w/arrows)

# 317 (Discussion held off the record between Deputy District Attorney and Defense counsel.)

# 318 MR. SCHECK:

Your Honor, while the jury is looking at it, maybe we can save some time by approaching on another exhibit that I have shown you.

Temperature

tense

Key Quotes (5)

Barry Scheck

Do you think that it would be a good practice, in your opinion of forensic scientists, to permit a car to be burglarized before you go in and swatch biological material from the area?

Scheck is arguing chain of custody was fatally compromised — the Bronco sat unswatched for over two months and was allegedly burglarized, rendering later samples unreliable.

Gary Sims

Yes, I have reviewed the notes and I did find more in 303 than 30.

Sims confirms that the September 1st sample from the same console area contained far more DNA (40.5 ng) than the June 14th sample (2.6 ng), the factual core of the contamination/planting argument.

Barry Scheck

If the allelic control fails to give the correct result, the analysis must be repeated.

Scheck reads directly from the lab's own quality assurance manual to argue that when the positive control showed a 1.3 dot, protocol required repeating the entire DQ-Alpha run — which was not done.

Gary Sims

I wouldn't score that as faint, no.

Sims refuses to concede that the 1.3 dot in stain 31 was faint — the point Scheck needs to equate it with the spurious 1.3 dots seen on the controls.

Lance A. Ito

The court reporters are almost in rebellion.

Judge Ito admonishes Scheck for repeatedly talking over Sims's answers — a recurring pattern reflecting Scheck's aggressive, fast-paced cross style.

Evidence (7)

Defendant's 1087

Photograph of Bronco console taken June 14th, showing stain locations 30 and 31

discussed, used to compare stain locations with September 1st samples

Defendant's 1167

Photograph of Bronco console on butcher paper taken September 1st, showing stain locations 303, 304, 305

discussed, compared against June 14th photograph to show increased blood

People's 260

DNA result board showing DQ-Alpha and D1S80 typings for Bronco stains

discussed; used to walk through typing results and exclusions/inclusions

Defendant's 1166

Photograph of DQ-Alpha strips for Bronco stain analyses (enlarged version taken by Dr. Blake)

introduced and discussed; used to show 1.3 dot in stain 31, QC 816, and positive control

Defendant's 1166-A

Printout of DQ-Alpha photo with arrows

marked and passed to jury

Defendant's 1166-B

Photograph with arrows added by Sims marking 1.3 dot locations

marked and passed to jury

+ 1 more

Notable Exchanges (4)

Barry Scheck•Gary Sims

Scheck methodically walks Sims through DNA quantities: stain 30 (June 14) = ~2.6 ng, stain 303 (Sept 1, same area) = ~40.5 ng. Sims confirms the numbers after reviewing his notes. This is the factual foundation for the argument that blood was added to the Bronco after the initial collection.

strategic

Barry Scheck•Gary Sims

Scheck tries to get Sims to call the 1.3 dot in stain 31 'faint,' comparing it to equally faint dots on the positive control and QC 816. Sims holds firm — he scored it as 'C' (equal to the control dot) and refuses the word 'faint.' Scheck moves to strike the answer; Ito simply asks Sims directly: 'Is it faint?' Sims: 'I wouldn't score that as faint, no.'

heated

Barry Scheck•Gary Sims

Scheck confronts Sims with the lab's own protocol: the positive (allelic) control showed a hint of the 1.3 dot, and the protocol requires repeating the analysis when the allelic control fails. Sims distinguishes between cross-hybridization artifact and a true allele call, refusing to concede the control 'failed.'

strategic

Gary Sims•Barry Scheck

When asked to write '1.3' on the photo to direct jurors' attention, Sims pushes back: 'Why would I mark 1.3 when I didn't make a determination that there is 1.3?' Ito clarifies it is just directional, and Sims complies reluctantly.

revealing

Light Moments (2)

Lance A. Ito

Judge Ito tells Scheck 'the court reporters are almost in rebellion' after Scheck repeatedly talks over Sims's answers. Scheck: 'I'm sorry. I'm rushing.'

Lance A. Ito

Scheck asks the jury to look at a photo on the Elmo, then Ito tells him to flip the board around — 'Unless you are going to use it immediately.'

Credibility Attacks (2)

⚔ Gary Sims

protocol violation / internal inconsistency

Scheck uses the DOJ's own quality assurance manual to argue that when the positive (allelic) control showed a 1.3 dot, protocol required repeating the DQ-Alpha run. Since the run was not repeated, the 1.3 result in stain 31 — which Sims himself called a 'tough call' — should be considered unreliable.

⚔ LAPD / crime lab

chain of custody / evidence integrity

Scheck establishes that the same Bronco console areas yielded 10-15x more DNA in September than in June, arguing this is consistent with blood being added after the initial June 14th collection. He also asks (sustained as argumentative) whether allowing a car to be burglarized before swatching is good forensic practice.

Witness Demeanor

(Brief pause.) — Sims pauses to review notes before confirming DNA quantities for stains 30/303 and 31/304

(Witness complies.) — Sims hands his own photograph of DQ-Alpha strips to Scheck for comparison

(Witness complies.) — Sims marks the 1.3 locations on the photo for the jury, doing so with evident reluctance

Objections

8 objections (7 sustained, 1 overruled)

Proceeding 6137 • 318 utterances • Prosecution witness

Criminal Trial

Department 103