Cross-examination of Renee Montgomery (part 5)

📄 Cross-examination of Renee Montgomery (part 5) — Tuesday, May 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\23\CROSS-EXAMINATION-OF-RENEE-MON.DOC

TRIAL

▲ Day 80 of 167

Witness: Renee Montgomery
Examiner: Robert Blasier
Called by: Prosecution • Date: Tuesday, May 23, 1995 • Utterances: 109

Defense attorney Robert Blasier cross-examines DNA analyst Renee Montgomery about D1S80 gel photographs, focusing on whether scanned/magnified images of gel 293 reveal anomalous band-like activity below the 18 allele — near the position of a 17 allele that none of the three principals (OJ Simpson, Nicole Brown Simpson, Ronald Goldman) possess. Montgomery repeatedly deflects by arguing that magnification distorts interpretation and that the pattern is silver precipitation smearing, not a real band. The proceeding ends with exhibits being circulated to the jury and a series of bench conferences, leaving the key scientific dispute unresolved on the record.

# 1 (The following proceedings were held in open court:)

# 2 THE COURT:

All right. Mr. Blasier, we will just have to hold on for a second.

# 3 (Brief pause.)

# 4 THE COURT:

All right. Mr. Blasier, you may continue.

# 5 MR. BLASIER:

Thank you. Could we have 1177, please.

# 6 MR. BLASIER:

Now, Miss Montgomery, this is one of the pictures that you looked at at lunch to compare with your original film, correct?

# 7 MS. MONTGOMERY:

Correct.

# 8 MR. HARMON:

Objection, it misstates the testimony. It is not one of the pictures, your Honor.

# 9 THE COURT:

Sustained. Rephrase the question.

# 10 MR. BLASIER:

Well, this is a scanned image of the photograph that I have right here. Would you like to look at it.

# 11 MR. HARMON:

Objection, it is irrelevant.

# 12 THE COURT:

Overruled.

# 13 MR. BLASIER:

Would you like to look at the photograph that you looked at to assure yourself it is the same one?

# 14 MR. HARMON:

Objection, that is irrelevant.

# 15 THE COURT:

Overruled.

# 16 MS. MONTGOMERY:

If you would like to hand that to me, sure.

# 17 (Brief pause.)

# 18 MS. MONTGOMERY:

And yes, this is a photograph that you asked me to look at during lunchtime and it appears to be a photograph taken by Dr. Ed Blake of one of my D1S80 gels.

# 19 MR. BLASIER:

Okay. Does it appear substantially the same as the scanned photograph, the same photograph?

# 20 MR. HARMON:

Objection. It is irrelevant whether it is substantially the same, your Honor.

# 21 THE COURT:

Sustained. Rephrase the question.

# 22 MR. BLASIER:

I'm sorry. Does it appear to be the same on the screen as what you have in your hand?

# 23 MS. MONTGOMERY:

Well, it has the same labeling and everything. I mean, this is a computer scan of the actual picture, so it appears similar. It is missing some of the--the side writing that is on these pictures.

# 24 MR. BLASIER:

Does it look any different at all, other than the side writing, other than the scanned image being a little smaller?

# 25 MS. MONTGOMERY:

No, it looks very similar. I mean, it appears to be the same one scanned into a computer.

# 26 MR. BLASIER:

You compared these photographs with your films during lunch, did you not?

# 27 MS. MONTGOMERY:

Yes, I did.

# 28 MR. BLASIER:

And you indicated to me after lunch that these appeared to be accurate representations of your films, correct?

# 29 MS. MONTGOMERY:

Correct. I mean, as I stated earlier, you need to actually see one of the blue copies to see some of the subtle or some of the less intense bands and I assume you will be seeing those later.

# 30 MR. BLASIER:

And if any of these pictures that I show you--if something else is revealed on your copy, you tell me and we will show your copy as well, okay?

# 31 MS. MONTGOMERY:

Okay.

# 32 MR. BLASIER:

Now, this is the run that you did with the sample from the fingernail scrapings, correct?

# 33 MS. MONTGOMERY:

Correct.

# 34 MR. BLASIER:

And the fingernail scrapings appear in these lanes, 45B, 46B and 45A1, correct?

# 35 MS. MONTGOMERY:

Correct. Those are the scrapings and the clippings.

# 36 MR. BLASIER:

Okay. Which is which, just so it is clear?

# 37 MS. MONTGOMERY:

45B--referring to my notes, 45B is the right scraping, 46B is the left scraping, and 45A-B1 is the right clipping.

# 38 MR. BLASIER:

Now, let me back out of this and I want to highlight those three lanes. Now, would you agree that there appears to be something going on below the 18 allele, correct?

# 39 MS. MONTGOMERY:

You know, you are focusing in on these and zooming them up. You need to look at the actual gel. We don't image our gels. We just do a hands-on look at the gel.

# 40 MR. HARMON:

Objection, move to strike, and I would ask the Court to take that exhibit off the screen, your Honor.

# 41 THE COURT:

No. Proceed.

# 42 MR. BLASIER:

Let's look at your original of this one, okay?

# 43 (Brief pause.)

# 44 MS. MONTGOMERY:

What was the gel number again? AG293?

# 45 MR. BLASIER:

293.

# 46 MS. MONTGOMERY:

Yes, this is my original. I have taped to the back a transparency with the labeling on it, but it is just a temporary removable item.

# 47 MR. BLASIER:

And would you agree that the area that I have--that I have blown up here conforms to what is on your original in terms of this--these band-like items below 18?

# 48 MS. MONTGOMERY:

Well, no. This is like taking a very close-up photograph and trying to ask the person what they see in the whole photograph. You need to look at the big picture. You can't just focus in like that.

KEY QUOTE

# 49 MR. BLASIER:

Well, look at the big picture.

# 50 MS. MONTGOMERY:

It is inaccurate. By looking at this gel, there is just some silver precipitation in this region, and once again, you will be able to see these, and there is just, you know, a little darkening down here. It is not a band by any means.

# 51 MR. BLASIER:

Would you agree that it looks like what we have up on the screen?

# 52 MS. MONTGOMERY:

Well, this is a magnification.

# 53 MR. BLASIER:

Yes.

# 54 MS. MONTGOMERY:

I mean, if I were to try to magnify this with my eyes, yes, but I think you need to look at the actual data and not magnify it up like that.

# 55 MR. BLASIER:

Well, look at it--does it look like there is something going on below the 18 allele at the position of the 17 allele under 46B?

# 56 MS. MONTGOMERY:

No. What you can see is if you look up at the gel, you could see a smearing from the first ladder all the way--I can't see it from here, but if you look at the first ladder and all the way over to past the second to the last ladder, you will see this dark smearing and that is just a little silver beam precipitation. That is just a smearing. It is during the staining process, and it is not by any means a band.

KEY QUOTE

# 57 MR. BLASIER:

Would you agree that neither Nicole Brown Simpson, Ronald Goldman or O.J. Simpson have a 17 allele in the D1S80 system?

KEY QUOTE

# 58 MS. MONTGOMERY:

I agree with that, yes.

# 59 MR. BLASIER:

Now, this smearing that you are talking about that causes that activity in the 17 allele, is this something that went wrong with this test?

# 60 MS. MONTGOMERY:

No.

# 61 MR. BLASIER:

Is this kind of smearing, something that you typically see where you would have--call them band like appearances appear on the gels.

# 62 MR. HARMON:

Objection, misstates the testimony.

# 63 THE COURT:

Sustained. Rephrase the question.

# 64 MR. BLASIER:

Is this kind of smearing something that is typical for D1S80--the D1S80 system?

# 65 MS. MONTGOMERY:

It is not--well, no, I don't typically see something like this, and it is just like I said, the silver is being precipitated and causing a nice flowing smear through that portion of the gel.

# 66 MR. BLASIER:

Did you run this again to see whether that activity at allele 17 disappeared?

KEY QUOTE

# 67 MS. MONTGOMERY:

Well, I don't see any activity at allele 17.

# 68 MR. BLASIER:

Did you run this again?

# 69 MS. MONTGOMERY:

No, I did not.

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

# 71 MR. BLASIER:

Well, we have the picture itself. Your Honor, I would ask that this particular photograph, as well as the last one, be circulated to the jury.

# 72 THE COURT:

All right. At this time? All right.

# 73 MR. BLASIER:

And--

# 74 THE COURT:

1177 and 1176 with the printout.

# 75 MR. BLASIER:

And the last one we'll submit the blue copy as well.

# 76 THE COURT:

All right. All right. Would you hand 1177--Mr. Blasier, would you hand 1177 to juror no. 7 and hand 1176 and the blue copy to juror no. 1.

# 77 MR. BLASIER:

Okay. Now, the--the photograph that is up here, she has been referring to her original which is different from the blue copy, and I'm wondering if the Court would like me to circulate her original with my photograph just so the jury could look at both?

# 78 THE COURT:

May I see the original?

# 79 (Brief pause.)

# 80 THE COURT:

Is this something a lay person can read by looking at it?

# 81 MS. MONTGOMERY:

Oh, yes. These are--you want to try to avoid touching the gel because you don't want to leave your oils on it.

# 82 (Brief pause.)

# 83 THE COURT:

All right. Then we ought to do this one set at a time.

# 84 MR. BLASIER:

Okay.

# 85 THE COURT:

All right. Ladies and gentlemen, be careful how you handle the original gel, please.

# 86 MS. MONTGOMERY:

If you could just handle them on the side. Just like photographs, if you touch the center, it can cause some residues.

# 87 MR. BLASIER:

I will hand 275-I and our printout, which is 1176-A.

# 88 THE COURT:

All right.

# 89 (The exhibits were passed amongst the jurors.)

# 90 THE COURT:

And while the jury is looking at that, let me see counsel, without the reporter.

# 91 (A conference was held at the bench, not reported.)

# 92 (The following proceedings were held in open court:)

# 93 THE COURT:

All right. Mr. Blasier, you wanted to give the jury also which exhibit?

# 94 MR. BLASIER:

Her original and my photograph.

# 95 THE COURT:

All right.

# 96 THE COURT:

How about if we ask everybody to hold it by the tape.

# 97 MR. BLASIER:

I'm sorry?

# 98 (The exhibits were passed amongst the jurors.)

# 99 MR. HARMON:

Your Honor, may I approach the witness?

# 100 (Discussion held off the record between Mr. Harmon and the witness.)

# 101 THE COURT:

Mr. Harmon, why don't you step over here a second with Mr. Cochran.

# 102 MR. COCHRAN:

Yes, your Honor.

# 103 (A conference was held at the bench, not reported.)

# 104 (The following proceedings were held in open court:)

# 105 THE COURT:

Mr. Blasier, would you rescue the first set from Deputy Russell.

# 106 (Brief pause.)

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

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

# 109 MS. CLARK:

Can we approach, please, your Honor?

Temperature

tense

Key Quotes (5)

Ms. Montgomery

This is like taking a very close-up photograph and trying to ask the person what they see in the whole photograph. You need to look at the big picture. You can't just focus in like that.

Montgomery's central rebuttal strategy — arguing that Blasier's zoomed-in analysis of the gel is inherently misleading and methodologically improper.

Robert Blasier

Would you agree that neither Nicole Brown Simpson, Ronald Goldman or O.J. Simpson have a 17 allele in the D1S80 system?

The key implication of the cross: if something is appearing at the 17 allele position in the fingernail scrapings, it could suggest DNA from an unidentified fourth person.

Ms. Montgomery

What you can see is if you look up at the gel, you could see a smearing from the first ladder all the way... you will see this dark smearing and that is just a little silver beam precipitation. That is just a smearing. It is during the staining process, and it is not by any means a band.

Montgomery's technical explanation for the anomaly, which she insists is a staining artifact rather than a genuine allele signal.

Robert Blasier

Did you run this again to see whether that activity at allele 17 disappeared?

Blasier exposes that Montgomery did not re-run the test to confirm or rule out the anomalous pattern, which goes to scientific rigor.

Ms. Montgomery

No, I did not.

Montgomery's admission that she never re-ran gel 293 despite the anomalous pattern, a potentially damaging concession about quality control.

Evidence (4)

Defense 1177

Scanned computer image of a D1S80 gel photograph taken by Dr. Ed Blake, showing fingernail scraping samples

displayed on screen, compared to original, circulated to jury

Defense 1176

Scanned photograph of a D1S80 gel (related gel run)

circulated to jury alongside blue copy

Defense 1176-A

Printout version of 1176

circulated to jury

People's 275-I

Montgomery's original D1S80 gel (AG293) for the fingernail scrapings run, with a transparency of labeling taped to the back

retrieved from witness, passed to jury with instruction to handle by edges only

Notable Exchanges (3)

Robert Blasier•Ms. Montgomery

Blasier repeatedly asked Montgomery to confirm that something 'band-like' was visible below the 18 allele in lane 46B (left scraping). Montgomery refused to characterize it as a band, insisting it was silver precipitation smearing across multiple lanes visible from staining — not an allele signal. When Blasier said 'look at the big picture,' she used that framing against him to argue his magnified image was inherently misleading.

strategic

Robert Blasier•Ms. Montgomery

Blasier elicited that Montgomery never re-ran gel 293 despite the anomalous pattern, and that the 17 allele position is not attributable to any of the three principals in the case.

revealing

Lance A. Ito•Ms. Montgomery

Judge Ito asked whether the original gel was something 'a lay person can read by looking at it' before allowing it to be circulated to the jury. Montgomery confirmed it was readable and instructed everyone to handle it like a photograph — by the edges only — to avoid oil contamination.

procedural

Light Moments (1)

Lance A. Ito

Judge Ito asking the witness 'Is this something a lay person can read by looking at it?' before handing a scientific gel to the jury — a rare moment of judicial candor about juror limitations.

Credibility Attacks (2)

⚔ Ms. Montgomery

omission / failure to re-test

Blasier established that Montgomery observed an anomalous pattern at the 17 allele position in gel 293 but never re-ran the test to confirm or rule out the signal — a potential quality control failure suggesting the result may not be reliable.

⚔ Ms. Montgomery

prior inconsistent statement (implied)

Blasier confronted Montgomery with her lunch-break acknowledgment that the scanned photographs were 'accurate representations' of her films, then used that concession to anchor his gel analysis questions, which she subsequently tried to qualify.

Witness Demeanor

Technically precise and combative; repeatedly redirected Blasier's questions back to methodology rather than answering directly

Volunteered explanations beyond the question asked, prompting objections from her own side

Physically retrieved her original gel to compare with the screen image during testimony

Objections

6 objections (3 sustained, 3 overruled)

Proceeding 6153 • 109 utterances • Prosecution witness

Criminal Trial

Department 103