Cross-examination of Gary Sims

📄 Cross-examination of Gary Sims — Monday, September 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\SEP\11\CROSS-EXAMINATION-OF-GARY-SIMS.DOC

TRIAL

▲ Day 151 of 167

◀ Direct examination of Gary Sims Recess ▶

Witness: Gary Sims
Examiner: Barry Scheck
Called by: Prosecution • Date: Monday, September 11, 1995 • Utterances: 107

Barry Scheck cross-examines DOJ criminalist Gary Sims about the timeline of RFLP testing on combined blood stain samples. Scheck establishes that Sims knew by March 22nd he had 72 nanograms of DNA and that hybridization would be the slow part of the process, yet didn't begin the necessary 3-4 day preparation until June 7th — a gap of roughly 2.5 months. The exchange ends with Scheck asking pointedly whether Sims couldn't find three days in that window to start the process before the prosecution's case concluded.

# 1 THE COURT:

Mr. Scheck.

# 2 MR. SCHECK:

How long?

# 3 THE COURT:

I'm sorry?

# 4 MR. SCHECK:

I will try to be brief, but I'm mindful--

# 5 THE COURT:

Yes. We are going to quit at 6:30. Sorry. We will start at 8:30.

# 6 MR. SCHECK:

Well, I will see if I can get right to the point.

# 7 THE COURT:

Okay.

CROSS-EXAMINATION BY MR. SCHECK

# 8 MR. SCHECK:

Mr. Sims, you knew going into this process that the longest part of it would be the period of time that the probes were hybridizing?

# 9 MR. SIMS:

Yes.

# 10 MR. SCHECK:

You knew that that part of the process would take something on the order of fifteen days, sixteen days per probe, given the small amount of high-molecular weight human DNA you had?

# 11 MR. SIMS:

Well, I think--I think it was in mid-May that I informed the court that I would need about two months.

# 12 MR. SCHECK:

Please answer my question.

# 13 MR. SIMS:

Well, I'm trying to use that--

# 14 MR. SCHECK:

No.

# 15 MR. SIMS:

--because you are giving me a specific--

# 16 MR. SCHECK:

All right. I'm giving you a very--I will make it easier for you. All right. By March 22nd you had done the quantitations on the combination and knew that you had 72 nanograms of high-molecular weight human DNA from 303, 304 and 305, right?

# 17 MR. SIMS:

No, that is incorrect. I didn't know as of March 22nd that that was human DNA.

# 18 MR. SCHECK:

All right. All right.

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

# 20 MR. SCHECK:

You are saying you knew you had 72 nanograms as of March 22nd, right?

# 21 MR. SIMS:

Yes.

# 22 MR. SCHECK:

And then on April--by April 4th certainly you knew that that was 72 nanograms of high-molecular weight human DNA?

# 23 MR. SIMS:

Yes.

# 24 MR. SCHECK:

But it would be a fair statement that certainly by March 22nd you knew, if you only had 72 nanograms of at best human DNA, that the RFLP tests here would be longest in terms of elapsed time from the moment that that probe began to hybridize, right?

# 25 MR. SIMS:

Yes.

# 26 MR. SCHECK:

So you knew that would be the long part of the process that would drag it out?

# 27 MR. SIMS:

Yes.

# 28 MR. SCHECK:

And if you wanted to get this done in a timely fashion before the end of the Prosecution's case, you had to get the probe started right away, correct?

# 29 MR. HARMON:

Objection. That is argumentative.

# 30 THE COURT:

Overruled.

# 31 MR. SIMS:

Well, I don't think I had any idea of how long the Prosecution's case would be at that point in time.

# 32 MR. SCHECK:

Were you aware that when the court ordered that this combination could be--could take place, that it was the understanding stated in open court that this process of RFLP testing should be done immediately, if not sooner, quote-unquote?

# 33 MR. SIMS:

I--I don't recall that exact language, no.

# 34 MR. SCHECK:

Nobody communicated to you that this court said that it was its understanding that the RFLP process for the combined stains should begin immediately, if not sooner?

# 35 MR. SIMS:

Well, I know that the--the Prosecution, which would be through Mr. Harmon, encouraged me to get this done as soon as I could, yes, but I don't recall the court ordering that--

# 36 MR. SCHECK:

All right.

# 37 MR. SIMS:

--to me.

# 38 MR. SCHECK:

In your discussions to get this done as soon as it could be, did you inform Mr. Harmon, as of June--March 22nd, when you knew you only had 72 nanograms of DNA, that the long part of this process would be the time that the probes began to hybridize?

# 39 MR. HARMON:

Objection. It is irrelevant what he told me.

# 40 THE COURT:

We have asked that question already, haven't we?

# 41 MR. SCHECK:

I just want to establish that Mr. Harmon knew.

# 42 THE COURT:

I think we can assume Mr. Harmon knows how the process works.

# 43 MR. SCHECK:

I think he does, but I guess it is just for the purposes of the record. We all know he knows.

# 44 THE COURT:

All right.

# 45 MR. SCHECK:

Now, in terms of this process--and I call your attention now to the questions that Mr. Harmon was asking you about the process that you prefer to do over three consecutive days involving the restriction, analytical gel and southern blot, now the restriction we all are talking about is putting that DNA into a test-tube with the restriction enzyme and cutting it up, right?

# 46 MR. SIMS:

Yes.

# 47 MR. SCHECK:

And that--in terms of hands-on work, that takes, what, an hour?

# 48 MR. SIMS:

Something like that. Something along that line.

# 49 MR. SCHECK:

And then you just let it sit overnight?

# 50 MR. SIMS:

Yeah.

# 51 MR. SCHECK:

He was asking you questions about how you prefer to do it over three consecutive days, but you didn't even do this over three consecutive days?

# 52 MR. SIMS:

I think that misstates my testimony. What I said is you can do the restriction separately and then set it aside. The three consecutive days are you do one day where you do the analytical gel overnight, the next day which is the electrophoresis, and then the next day is the southern blot overnight and then there is a third day where you have to dismantle the southern blot, so that is the three days that you need in a row that I spoke of.

# 53 MR. SCHECK:

All right. So in terms of the restriction, it is one hour's of hands-on work and then you leave it overnight?

# 54 MR. SIMS:

Well, I would object to that characterization of one hour of hands-on work, because it is not just hands-on work; it is evaluating how much sample you have to put into this situation. In this particular case it is making sure we have enough sample. That sort of thing.

# 55 MR. SCHECK:

Wait a minute. I'm just--you just told us a second ago to do the restriction it took an hour of hands-on work. Just a second ago you said that--

# 56 MR. SIMS:

Well, no. I agree with that being an hour of hands-on work, but I'm saying it is a lot more than hands-on work, that is my point.

# 57 MR. SCHECK:

That is my question, thank you. You let that sit over night and the analytical gel is two hours of hands-on work and then you let that go overnight?

# 58 MR. SIMS:

No, I disagree.

# 59 MR. SCHECK:

All right. How many hours of hands-on work does it take you to put the DNA into the analytical gel, because that is what is at issue here?

# 60 MR. SIMS:

Well, no. I don't mean to be argumentative, but I think you have to remember that after you've restricted the DNA, you have to do an evaluation, you run a digest gel, you have to then--

# 61 MR. SCHECK:

Just give me an estimate of hours to prepare?

# 62 MR. SIMS:

That is about a day's work, about a day's work after you do the restriction to get it now going overnight to do an analytical gel.

# 63 MR. SCHECK:

You are saying it takes you a day to prepare the analytical gel. Come on?

KEY QUOTE

# 64 MR. SIMS:

Yes.

# 65 MR. HARMON:

Your Honor--

# 66 MR. SCHECK:

One day for the--

# 67 THE COURT:

Argumentative, counsel.

# 68 MR. HARMON:

Your Honor, that is not very courteous for him to say "Come on."

# 69 MR. SCHECK:

No. I'm very fond of Mr. Sims. I mean no disrespect to him.

# 70 MR. HARMON:

The jury is out on that, too.

KEY QUOTE

# 71 MR. SCHECK:

I'm only trying to get at the truth.

# 72 MR. SCHECK:

Mr. Sims, the southern blot, how long does it take you to prepare the southern blot? An hour and a half, two hours?

# 73 MR. SIMS:

After the overnight electrophoresis, then it is about two hours of work to set up the southern blot.

# 74 MR. SCHECK:

All right. So you can do the restriction, the analytical gel and the southern blot, in what, three days?

# 75 MR. SIMS:

We are now through that process, yes. There would be about three days, something like that.

# 76 MR. SCHECK:

All right. So it would take you--and part of that--it is not just three days of consecutive work. Part of that is you just have to let things go overnight?

# 77 MR. SIMS:

That's correct.

# 78 MR. SCHECK:

All right. So before you get to the phase where there is this long elapsed time of letting the probe sit, you needed to do, essentially, work that would take three days to complete, right?

# 79 MR. SIMS:

Something like that, yes. Three--

# 80 MR. SCHECK:

Three--

# 81 MR. SIMS:

I'm sorry, three or four. I would like to say three or four.

# 82 MR. SCHECK:

Let's try three or four days to complete?

# 83 MR. SIMS:

Yes.

# 84 MR. SCHECK:

But in those three or four days, for example, if you had done the restriction, which you told us takes about a hour, and you let it sit overnight, you could have done the restriction in an hour and had a conversation with Mr. Harmon about discovery or preparation or other things, right?

# 85 MR. SIMS:

Well, that is not really true, because a lot of these things are done at the end of the day. For example, the restriction is usually set up as the last thing that goes overnight, so it is not the sort of thing where I would do that the first thing in the morning and then later in the day talk to Mr. Harmon. That is not clear.

# 86 MR. SCHECK:

Let's get--

# 87 THE COURT:

Counsel, we--

# 88 MR. SCHECK:

I have one last question, your Honor, that you might want to think about overnight, and this will be it.

# 89 THE COURT:

All right.

# 90 MR. SCHECK:

From March 22nd when you knew that you had 72 nanograms of DNA and there would be a very extensive time period on the development of each probe, to the time that you went through what you described as the three or four-day process that would be necessary to get those probes in motion--right, that is the time period, okay?

# 91 MR. SIMS:

Okay.

# 92 MR. SCHECK:

So it is March 22nd and you began that process of getting those probes, that three or four-day preparation time to get the probes in motion, you began that on June 7th?

# 93 MR. SIMS:

Yes, I believe that is the right day is June--June 7th.

# 94 MR. SCHECK:

And it is your testimony that between March 22nd and June 7th you couldn't find three days to get that in motion so that the RFLP tests on the combined samples could be ready before the end of the Prosecution's case; is that right?

KEY QUOTE

# 95 MR. SIMS:

Well, it is the point that I did not find that. I came very close to doing this at the end of April, but I was not--I did not complete it at that time.

KEY QUOTE

# 96 MR. SCHECK:

And you are not the only person that was doing--just so the Judge understands, in terms of these batch technicians, they are the ones that actually deal with the RFLP probes, technicians in your lab?

# 97 MR. SIMS:

Yes.

# 98 MR. SCHECK:

And Renee Montgomery, she was working on this case, too?

# 99 MR. SIMS:

Yes.

# 100 MR. SCHECK:

And she was doing PCR tests?

# 101 MR. SIMS:

Yes.

# 102 MR. SCHECK:

And she was doing--helping with the RFLP tests?

# 103 MR. SIMS:

That's not true.

# 104 MR. SCHECK:

She didn't do any of these--didn't she do slot-blots and yield gels on some of these samples?

# 105 MR. SIMS:

She did on some of the samples, but I don't believe she did any with regards to these particular samples, no.

# 106 MR. SCHECK:

See is capable of it?

# 107 MR. SIMS:

Yes.

Temperature

tense

Key Quotes (4)

Barry Scheck

And it is your testimony that between March 22nd and June 7th you couldn't find three days to get that in motion so that the RFLP tests on the combined samples could be ready before the end of the Prosecution's case; is that right?

The capstone question of the cross — crystallizing the delay argument and leaving it as an overnight cliffhanger for the jury.

Gary Sims

Well, it is the point that I did not find that. I came very close to doing this at the end of April, but I was not--I did not complete it at that time.

Sims admits he nearly started in April but didn't follow through, underscoring the delay without a clear excuse.

Barry Scheck

You are saying it takes you a day to prepare the analytical gel. Come on?

Rare moment of visible skepticism from Scheck, prompting Harmon's 'the jury is out on that, too' rejoinder.

Rockne Harmon

The jury is out on that, too.

Dry gallows humor from Harmon, playing on the literal fact that the jury had been excused — one of the few light moments in the exchange.

Evidence (2)

Informal

Combined blood stain samples 303, 304, and 305 yielding 72 nanograms of high-molecular weight human DNA

discussed — used to establish the starting point for the delay argument

Informal

RFLP testing process (restriction, analytical gel, southern blot, probe hybridization)

discussed — Scheck deconstructs the timeline step by step to show 3-4 days of prep was all that stood between March 22 and starting the probes

Notable Exchanges (3)

Barry Scheck•Gary Sims

Scheck methodically walks Sims through each step of the RFLP process to establish that only 3-4 days of hands-on preparation were needed before the long hybridization wait — then hammers the 2.5-month gap between knowing the DNA quantity (March 22) and actually starting (June 7).

strategic

Barry Scheck•Rockne Harmon•Lance A. Ito

After Scheck says 'Come on?' to Sims's claim that preparing the analytical gel takes a full day, Harmon objects to the discourtesy, Scheck protests his fondness for Sims, and Harmon quips 'The jury is out on that, too.'

briefly light amid tension

Barry Scheck•Lance A. Ito

Scheck signals he has 'one last question' for the judge to think about overnight — a deliberate rhetorical move to let the delay question linger with the court.

strategic

Light Moments (1)

Rockne Harmon

Harmon quips 'The jury is out on that, too' after Scheck protests his affection for Sims, playing on the literal absence of the jury from the courtroom.

Credibility Attacks (1)

⚔ Gary Sims

conduct impeachment / delay argument

Scheck establishes that Sims knew by March 22nd the RFLP process would be time-consuming due to limited DNA, that the court had urged the work begin 'immediately if not sooner,' and that only 3-4 days of prep work separated him from starting — yet he didn't begin until June 7th, too late to complete before the prosecution rested. Sims's only explanation is that he 'came very close' in late April but did not follow through.

Objections

3 objections (0 sustained, 1 overruled)

Proceeding 7569 • 107 utterances • Prosecution witness

Criminal Trial

Department 103