All right. Back on the record in the Simpson matter. The Defendant is not present, having previously waived his presence for the purpose of this hearing. The jury is not present. Mr. Sims, would you resume the witness stand, please.

Gary Sims, (402) the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

All right. Mr. Gary Sims is on the witness stand undergoing cross-examination by Mr. Scheck.

CROSS-EXAMINATION (RESUMED) BY MR. SCHECK

Mr. Sims, when we left off last evening we were talking about the gap in time between your discovery on March 22nd that you had something on the order of 72 nanograms in the combined sample and the commencement of the three to four-day process of the creation--putting the first probes for development on the gels. Do you recall that?

Yes.

All right. Now, just to get back so the record is clear, when you discovered that you had 72 nanograms on March 22nd, you knew this was a mixture?

There were--there were indications that that was a mixture at that point, yes. This is March 22nd now?

Yes.

Yes.

In other words, the three samples that you are combining here, 303, 304 and 305, it was your expectation that that was a mixture, and based on your previous results it would primarily be DNA that you had previously found to have markers consistent with O.J. Simpson and there would be minor contributions from DNA consistent with Mr. Goldman and consistent with Nicole Brown Simpson on PCR markers?

Yes. In other words, there was--I knew at that point that we had a mixture. That is correct, on March 22nd.

Excuse me just a second. Mr. Blasier, if you want to conduct interviews, why don't you do it outside.

I'm sorry, your Honor.

Mr. Scheck.

All right.

And it was your expectation, based on your previous results, that if you had DNA results consistent with Mr. Goldman's DNA, in the combined samples, that that contribution would not be the primary one in the mixture?

I knew that the potential contribution of Nicole Brown was--was certainly the weaker allele from the D1S80 results. The DQ-Alpha was a little bit closer than that. It wasn't--wasn't so clear that there would be a major and minor difference between Mr. Simpson and Mr. Goldman's potential types.

Well, didn't you previously indicate, with respect to some of the 303, 304 and 305 stains, that it was your finding that as to some of them the DNA from--consistent with Mr. Simpson was the primary contribution and that--in those mixtures?

I believe that was true on one of those that we had tested earlier, but that is one of those three.

Now--but the point here is, is that you had your--you were combining samples that you knew or that you expected was a three-way mixture?

I had reason to believe that that could be a three-way mixture, yes.

And that the DNA from--that could be consistent from the PCR markers with Mr. Goldman was not the major or primary contribution to that mixture?

That's correct.

And so when you have 72 nanograms of DNA on March 22nd and you are contemplating an RFLP test, your expectation that if you are going to find consistent with Mr. Goldman on the RFLP that it is going to be not 72 nanograms of DNA consistent with Mr. Goldman, but a much smaller portion?

That's correct.

And it is for that reason that you conceded yesterday that you would expect that once the process began of putting the probes--developing the probes, that it would take a considerable period of time to develop them because you knew that the amount of DNA that could arguably be consistent with Mr. Goldman would be a small contribution?

Yes. In other words, that--that these autorad development times would be prolonged because there was an overall total low amount of DNA, and since it was a mixture, then that would--any of those particular components would be even less, obviously, than the total.

Now, between the period of March 22nd and when you began the three to four-day process of putting the probes onto the gels to develop them, okay, you went through some considerable discussion with Mr. Harmon here yesterday as to what your activities were, correct?

Yes.

How much of that time in April was taken up in discussions with Mr. Harmon in preparation for your testimony in this case?

There were a few meetings with Mr. Harmon, I believe it was on the Fridays in April, yes.

Well, it took you one day, April 5th, to prepare your report?

Yes. I logged--I logged 14 and a half hours on that day of report preparation. That was in addition. There was some other work. There was--the Sunday April 2nd before that there was also some time spent on the report.

Okay. So those two days, April 2nd and April 5th, that is what you took to prepare your report which was a summary of your results?

Yes, and I believe there was some other time in there also where I was doing some word processing, putting things together. That is all part of that mix.

All right. And your notes, you've told us before, you kept contemporaneously as you performed your work in this case?

Yes.

So in order to turn over to the Defense discovery of the notes, all you had to do was take your contemporaneous notes and Xerox them and turn over a copy, as far as the notes are concerned?

Well, as far as the notes we--we made copies, we have a special numbering system we follow. There is preparation of correspondence. There is sometimes taking it to the federal express offices, something that I would do. There is a lot as far as making sure the autorads get copied and numbered and there is--the discovery process is not just a matter of sticking some pages in a Xerox machine and walking away and coming back and having them ready to go.

Well, you turned over to us your notes which you kept contemporaneously and the autorads which were being produced on all the other material that you testified about in this case as you went along?

Yes.

In other words, before you are reporting the results, you have to look at the autorads?

That's correct.

So in terms of the discovery, all you ever turned over to us were the autorads and your notes, right?

Well, there are my notes, there are other analyst's notes and there are also review notes and that sort of thing. This is a whole package. And you received several of those so you know what is in them.

Right. But you have indicated here that you spent all of April 10th and all of April 11th engaged just in discovery preparation?

No. What this indicates is that as far as those two days are concerned, I did spend almost all of April 11th. I have eight hours I logged on discovery prep. On April 10th it was only three hours, so I was apparently doing something else on April 10th.

Uh-huh. Now then, you have on Wednesday and Thursday preparation for testimony, correct?

Yes. I believe that is the 13th and the 14th.

All right. And so those are at least two days that you spent with Mr. Harmon preparing testimony?

No, that--a lot of those times are just my own time spent. That is not with Mr. Harmon at that point.

Okay. What about--incidentally, after you prepared the report on April 5th, on April 6th you and Renee Montgomery actually flew to Los Angeles to give the report to Mr. Harmon?

Yes. And to consult, yes.

So on April 6th you consulted with him in preparation for your testimony in this case?

Yes.

In Los Angeles?

Yes.

On April 7th I take it you did the same thing, even though it is not listed here?

I believe that was a Friday?

A Friday.

I--I think--I think that is incorrect. I think I came back sometime in the evening on April 6th, and I'm not sure what I did on April 7th. Apparently it didn't relate to anything on this case.

All right. So you didn't do anything on the case on April 7th, but you did other work?

Yes. I put in, I believe, a full day at work that day.

All right. So on April--what about Wednesday, April 12th? Was that another day that you were preparing for your testimony?

No. I didn't log any hours on this case for April 12th.

So April 12th you didn't do anything on this case?

Well, I won't say I didn't do anything. I may have been developing an autorad, for example, but I have no mention of it in any of my time sheets that I could find.

All right. So April 13th and 14th are other days that you preparing testimony?

Yes. You mentioned those earlier, yes.

Then you put down here April 17th and 18th you are preparing for testimony?

Yes.

Is that--are you spending time with Mr. Harmon?

No.

That is all day you are just sitting around preparing for testimony?

Well, on the 17th I believe there were two and a half hours and then the next day was a full eight-hour day on preparation.

And incidentally, getting back to this before, the three or four-day process that you describe as being necessary to get those probes going, that is not three or four days of hands-on work by you?

Well, all the hands-on work is by me, but it is not full eight-our days.

Right. Not full eight-hour days by any means?

One of those days is virtually an eight-hour day.

As you described before, the restriction takes an hour and then you just let it go overnight?

The hands-on time that I would mention would be the actual adding of samples and tubes, but there is also the planning stage and that takes a considerable amount of time.

Well, you could put--I think you testified yesterday it would take you, what, an hour, an hour and a half to do the restriction and put it overnight, right?

In this particular case I believe there was some additional time in terms of the planning, but as far as the hands-on, that's correct.

Give me the total hours it would take you to plan and do the restriction.

In this case I would say it was about a half a day, something like that, maybe four hours.

What is half a day?

Four hours.

You are going to get this in four hours?

Something like that. That is an approximate.

Excuse me. If you guys want to talk at the same time, we are going to stop the hearing right now.

So if that takes you four hours--my apologies, your Honor--if that takes you four hours, you could do that and then spend the remainder of the day preparing your testimony, right, looking over the materials?

Well, as I think I mentioned yesterday, the restriction is something that is typically done at the end of the day, so that is something I would save for the latter part of the day.

Okay. So you could prepare your testimony in the early part of the day by reviewing things and then start the restriction at the end of the day?

That is possible, yes.

And then to get back to this, on April 19th you talk about analysis of test results. Is that still more preparation for your testimony?

I think there may be some of that in there. There is--there may also be some autorad development. Another thing that was going on at this time was there was some monitoring of some of the testimony of the other witnesses, so I'm not sure exactly what all was going on on that day.

Well, let's get to that. In other words, part of what you were doing here is that you were listening to the testimony of other witnesses before you testified?

Portions of those testimonies, yes.

And were you listening on a radio in your lab?

At times I was, yes.

And sometime you would watch it on television?

At times, yes.

All right. And then on April 20th there was a whole day preparing testimony?

Preparation for testimony. That was--I logged I think a half day on that particular day.

A half day. And did you--was that alone or with Mr. Harmon?

That would be alone.

All right. And April 21st you took off?

Yes. I took that Friday off.

And what about that Monday, April 24? No work on this case?

I didn't log any time, no.

All right. And then on April 25th you were reviewing other materials and preparing for testimony?

Yes. And at that point I went back to the plans for doing the RFLP and I made some notes that are reflected in my laboratory notes for that date.

Now, on April 26th you talk about what Renee Montgomery was doing, correct?

Yes, and also that--that is the day that I actually laid out and I had hoped to do the restriction, and I think we alluded to this yesterday, that that was the point at the end of April when I got very close to doing this, but I was not able to complete the restriction that night.

How long did you spend doing the restriction?

I logged a total of about four hours on the case that--that day, April 26th, which was a Wednesday.

Not my question. How long did you spend doing the restriction?

Well, the--

Planning the restriction?

The planning--I--I don't know the exact amount of time that was spent that particular day. It was probably on the order of a few hours, something like that.

A few? Can you--planning the restriction?

I'm asking you how long you spent planning the restriction?

I don't know exactly. I mean, I--I'm looking at my notes for that day. This is my notes on page 242.

Well, Mr. Sims, you mentioned that in terms of preparing the reference sample you wanted to make sure that the reference sample would be in similar quantities to the amount that you had from the combined sample, correct?

That's correct.

So the autorads would look balanced in the lanes, right?

That's correct.

Well, so basically that doesn't take very long to do, does it?

Well, no. The difficulty here, and I think we got into this a little bit yesterday, but the difficulty was that I was running out of some of these reference sample extracts, and in particular I had a note that I was trying to get more of the Defendant's extract and I had a note that I would check with Renee Montgomery to see if she had any sample available left over from some of her extraction. And this was one of these nights where it got to be--I think I logged out at 11:30 that night.

Are you talking now about--what date are you talking about?

April 26th.

All right. So April 26th is the time that you are first looking to see if you have sufficient amount of reference sample from the Defendant to proceed with the RFLP? Is that what you are telling us?

That is--that's correct. That is when I actually start handling the tubes again.

All right. So that is already April 26th?

That is April 26th.

That's correct.

And incidentally, so the Judge understands exactly what we are talking about here, basically what you are trying to do is you know if you have something like 72 nanograms of DNA for one sample, instead of using five microliters of the reference sample, you will knock that down to something like one microliter?

Yes.

That is a simple calculation you make on your hand-held calculator, right?

Well, given the number of calculations I make in any case, I don't consider any of them simple, and I spend a lot of time with my calculations to try to make sure I get them right.

I understand, but it is just a simple question of reducing the amount of DNA from the reference sample so it roughly corresponds to what you think you have in the combined sample?

Well, I mean, you make it sound so simple, and when you look at it from your perspective, perhaps it is simple, but to me it is a matter of making sure that I have--how good are my quantitations, how good did they look on the previous set of autorads and that sort of thing, and making the proper estimates, and I take a lot of care in trying to come up with the best amount of DNA to use, for example, so it is not just a simple punch it into a calculator and get the result.

I understand, but you knew you had 72 nanograms on March 22nd. Tell this Judge in all candor how many hours it took you to figure out how much reference sample you would need to run, given the fact that you had 72 nanograms, the total number of hours it took you to make this calculation?

Now this would be for April 26th?

No. I'm asking how long would that operation take? Once you knew on March 22nd you had 72 nanograms, how long does it take? If you decided to do it soon--soon after March 22nd, how long would it take you to figure out how much DNA you needed from the reference sample to run on the RFLP?

Well, again, I can only speak in the context of the samples in this particular case and it is not just a matter of saying I have this sample, I mean, I have this sample, how much of the sample do I have left, how did this sample look when I put it on the previous autorad.

All right.

Maybe three, I don't know.

So in other words, if you sit down to do it, it is going to take you two to three hours max?

Something along that line, yes.

And--so the record is clear, you didn't really even sit down to even do the planning until April 26th?

No, that is not clear at all, because I think if you look at my notes, the planning again--I have--on April 25th, this is at page 242, "Plan for additional RFLP on April 25th."

Okay. So you started on April 25th this two or three-hour process, and it ended sometime on April 26th in terms of planning the restriction?

Well, again, I think you are simply identifying the situation and I can't give the precise number of hours that all these processes would take, but there is time on April 25th and there is time on April 26th.

Right. Now, you then told us--indicated that on April 27th you are doing more preparation for your testimony in attending a CAC study group meeting?

Yes. That was on April 27th.

All right. April 28th you are reviewing other data, but you are meeting with Mr. Harmon in preparation for your testimony?

Yes, and I also met with Dr. Blake that day, too.

Uh-huh. On May 1st you talk about what--in your notation what Renee Montgomery did, right?

Yes, and I was working a little bit with her on that particular day.

How many hours did you spend working on this case on May 1st?

I logged about four hours.

And what were you doing?

Watching Renee Montgomery?

No. I think I was consulting with her on some stuff and there is a lot going on at this point now. This is shortly before I come down to Los Angeles, so there is a lot of last minute sort of things that are happening on that particular date.

All right.

I can only say that I logged four hours on that day.

Uh-huh. And May 2nd, these are four hours on a photo log?

Yes. I--I put, because there was a request for some of the photographs, I spent some time numbering and organizing the photographs that we took into some kind of numerical system.

These are the photographs that you took after Dr. Blake took photos?

Yes. Most of them are after or made about the same time as Dr. Blake's photos. I also spent some time preparing to testify on that date.

Okay. So that is another one of those preparation for testimony days?

That is part of it, yes.

And these are the photos that--

Counsel, is there--isn't the issue how long the testing takes?

Yeah. I'm just trying to--

Is there any dispute as to Mr. Sims' calendar here?

I just want to point out a few more things, your Honor, in this regard.

You indicate here on May 3rd, May 4th, you are preparing for testimony, right?

Yes.

Saturday, May 6th, you are preparing for your testimony?

Yes. I--I also may have come in and developed an autorad that day. I'm not sure.

Now, you flew down on May 7th to watch Dr. Cotton testify, correct?

Well, I--I flew down on May 7th, which was Sunday, to--yes, I was standing--and also standing by because I didn't know how long her testimony would. Take and I was requested by the Prosecution to be here for May--what would that be, May 8th, Monday?

Wait a second. You didn't think that Dr. Cotton's testimony would take a few days at the very least?

Counsel, counsel, his presence here for the purposes of being with the Prosecution counsel for the testimony of other expert witnesses, this doesn't tell me anything about the issue that I need to resolve here.

I just want to make one point, your Honor, in this regard.

You sat in this courthouse watching Dr. Cotton's testimony on television, correct, monitoring it?

I think I was at the hotel at that time.

Okay. Now, you had monitored other witness' testimony in your lab at the same time you are doing some work?

Yes. For example, there would be days when I would be preparing to testify and then I would have my radio on, for example, something like that.

So--

I don't--may I finish?

Yes, I'm sorry.

All right. But it is certainly possible for you at, let's say, the end of the day, for example, to have done the restriction and have monitored testimony during the day and been in telephonic contact with the Prosecutors?

Is that possible? Yes.

Yeah. Okay. Now, there are other people--there is an individual in your laboratory named Steve Myers?

Yes.

Did he participate in creating some RFLP's in this case?

He was involved in some of the batch probing, but he didn't do anything as far as preparing the samples for RFLP analysis.

Is he qualified to do the restriction and prepare the southern blot and get those probes moving?

Yes.

And he was available to do some work on this case?

Well, he was available to do some work on this case, but he also has a number of other cases that he is working on. This was not the only case in our laboratory for the--for this period of time, I can assure you.

But he is somebody that is qualified to do that?

Yes.

And did on occasion pitch in and do--assist you in RFLP work in this case?

Well, his main assistance was in some of the PCR testing, I think we mentioned that earlier, and he also extracted the hair sample, you will recall.

But he participated in the RFLP--he does most of the RFLP work in your lab?

No, no, that is not at all correct.

He does a lot of RFLP work at DOJ?

He does a lot more PCR work than he does RFLP work. He did some of the batch probing because he is a very good prober.

Okay. All right. Your Honor, on this issue I think I am through with my cross-examination of Mr. Sims.