Thank you, Your Honor. The people will call Michele Kestler.

Please face the clerk and raise your right hand.

You do solemnly swear the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God?

I do. Michele Kestler, called as a witness by and on behalf of the People, having been duly sworn, was examined and testified as follows:

Please be seated. State and spell your name for the record.

Michele Kestler. M-i-c-h-e-l-e, K-e-s-t-l-e-r.

Thank you very much. You may inquire.

DIRECT EXAMINATION

BY MS. CLARK:

Good morning, Ms. Kestler.

Good morning.

Please tell us what you do for a living.

I'm employed by the City of Los Angeles, Los Angeles Police Department, and I am the assistant laboratory director for the criminalistics laboratory.

Tell us what that means. What are your duties?

My duties include the managing and overseeing of several areas there, including the serology, D.N.A. lab, the trace unit and many of the other units that are there.

And what does that mean? What exactly do you mean by that?

Well, managing also means evaluating and implementing programs such as serology and D.N.A., including evaluating crime scenes and managing task forces or large cases, and the employees that are doing the work.

So you direct the criminalists in what to do, basically?

That's correct.

Were you once a criminalist yourself?

Yes, I was.

Tell us what a criminalist is.

A criminalist is one who collects, preserves and analyzes all types of physical evidence and testifies in court.

Now, does that mean it's somebody that goes out to a crime scene to collect evidence from a scene?

Yes.

Of a scientific or evidentiary nature?

That's correct.

Have you also performed trace evidence analysis or blood analysis?

Blood, years ago and trace, years ago also, yes.

What kind of training did you receive in order to get your current position?

The training in the current position is basically a management position, so I have taken several management classes. But the criminalist position, my training and background includes a master's degree of criminalistics from Cal State University, and then on the job training including courses at the F.B.I. laboratory and California Criminalistics Institute and various other private classes.

And how many years of training is that?

Overall?

Overall.

Master's degree is two years beyond your bachelor's. I have probably about total of four years -- six years invested there. And training in specialty classes, probably about another two years full-time training if you were to separate it out compared to on-the-job work.

Now, you have your master's in what?

Criminalistics.

And criminalistics, the subject is defined as?

Again, criminalistics is forensic science or all areas of evaluating forensic evidence.

Now, when you say "evaluating forensic evidence," Ms. Kestler, what does that mean in terms of your knowledgeability about which tests are available and appropriate to be performed on various types of evidence?

One of the things that forensic experts must look at in any type of physical evidence, the first thing you do is you look at the evidence, you find out -- evaluate what you have, what it is, and then you proceed from there, and the type of testing you would like to do is going to be the most informative and the most conclusive, and you have to evaluate each piece of evidence for that purpose.

And are you qualified to do that?

I believe I am, yes.

Does your training, in fact, qualify you to do that?

Yes, it does.

Now, are you also trained and experienced in determining how much volume of sample is needed for each test that you determine is appropriate to be performed on each item of evidence?

Yes.

Now, in this particular case, was it requested of you to determine whether certain items of evidence that were blood stains recovered from both the crime scene and the residence of the defendant as well as blood recovered from certain items found at the crime scene and the defendant's residence were sufficient in quality and quantity for subjecting to certain scientific tests?

Yes. We were asked to determine whether the evidence, our best evidence as to whether the evidence was appropriate for that.

And did you review also the number of tests, a variety of tests, a range of tests that could be performed on each item of evidence in order to gain the maximum possible competence in the results?

Yes. We reviewed the samples and made again our best estimate as to what could be done. Of course, there's never any guarantee until the tests are actually done or you actually start working with the evidence to determine whether you're accurate in your estimate.

Now did you, in fact, then review much of the evidence that has been recovered in this case?

Yes, most of it.

Tell us, first of all, for purposes of clarity which items were you unable to examine for the purpose of determining whether a blood split could be given to the defense?

Okay. I'd like to refer to my notes.

Please.

Thank you. The items that were currently available to us were items number 61 through 71.

Do you have any knowledge, Ma'am, of which items those are?

I have some references to what they are. I don't have any absolute knowledge as to what they are or where they came from. I know what they're listed as.

What are they listed as?

Okay. Item number 61, I believe, is a handgun.

A handgun?

A handgun, yes.

Let me just ask you this. Item 61 through 71 --

Um-hum.

-- Is it your belief based on the information you have at hand that none of those items contains blood evidence?

I'm not sure because some of those items were recovered by detectives, I believe, and there's indicated I know on there -- some sheets and pillowcases and a towel with a broken glass, so I have no idea at this time.

Is it your information that some of those items listed in 61 through 71 came from Chicago?

That's what I presume based on what they are. That's my -- assuming the detectives collected them because most everything else that is available to us was collected and booked by our criminalists.

As a matter of protocol, let me ask you something for purposes of clarity, Ms. Kestler. Where can evidence be booked? Are there two places where they can go?

Well, there's many areas. The Los Angeles Police Department has several property rooms, including one that is adjacent to the crime laboratory and one that is in Parker Center, as well as one in many of the area stations. And evidence can be booked at any one of those locations.

Now, the items that you have, in fact, evaluated for the purpose of this hearing, where were they?

They are all booked at Piper Technical Center.

Which is adjacent to your laboratory?

That's correct.

The items that you were not able to examine, where are they?

They are booked and sealed in a vault at Parker Center.

So item 61 through 71, you were not able to look at.

And also items 88 through 90.

What about items 73 through 81?

73 through 81, we have those items but we just received those late Friday and have not been able to evaluate them. That is the coroner's evidence. Some we evaluated. The clothing we could not at this time.

The coroner would not release them to you until last Friday?

That's correct.

Was that, if you know, in order to accommodate the defense in examining the evidence first?

That's what we were told, yes.

And items 88 through 90?

Those are booked at Parker Center, and I believe those are from Chicago, based on the property report.

Those were not looked at?

No.

Items 91 through 93?

Those were just recovered in conjunction with a search warrant that was served on 6/28, and they were booked late yesterday so we have not had a chance to review those items.

91 to 93, weren't those --

I'm sorry, 91 through 93 were recovered from a Bronco, but they were also just recovered yesterday. Sorry.

In other words, was other testing being performed on the Bronco?

As far as I know it was, and then there was some indication that there was possibly another search for evidence that they didn't want to make in the beginning, and so they went back the second time to look at the vehicle.

But the vehicle remained in police custody?

As far as I know, yes.

Your Honor, may I suggest to the court that leading questions not be asked of this witness unless absolutely necessary?

Your Honor, this is an expert witness who has the reports in front of her.

Expert testimony is not subject to the leading question objection. However, at this point in time I don't believe she's actually giving you expert opinions. She's rather giving information concerning the specific items of a background nature. The objection at this time is sustained. I mean, I ask you to please -- with regard to her expert testimony, obviously she can -- you can ask leading questions, but on these foundational matters, I would prefer if you could refrain from asking leading questions. \ \

BY MS. CLARK:

Items 94 through 106 -- excuse me, 109, have you looked at those items yet?

No. Those were recovered pursuant to a search warrant on 6/28, and booked yesterday at Piper Technical Center, but we have not had a chance to review them for physical evidence.

And 110 through 113?

Those were items booked yesterday also at Piper Technical Center, and those were items that were recovered from other items already booked, and they are trace evidence items.

Are those hairs that were recovered from something else?

They are evidence including hairs and fibers recovered from property items, and I can tell you what those are one at a time. For example, item 110 was recovered from item 9. Item 111 was recovered from item number 27.

Wait. Item 110 --

Was recovered from item number 9.

What is item number 9?

Again, I'll refer to my notes. I believe it's a glove.

And item 110, what kind of evidence is that?

Yes. Item number 9 is a leather right-hand glove.

Excuse me, Your Honor.

Yes.

We have not received a list of inventory items beginning at 91 for which testimony is being offered this morning.

All right. The document that was provided to me, does the defense have that summary as well?

I intended to give the copy that the court has to the defense. If the court can allow us --

I have another copy.

We have another copy.

Please.

This information is contained in other discovery, but the list that is compiled was just compiled by this witness for her testimony. The information is all in possession of the defense, Your Honor.

All right.

Your Honor, that simply is not true. We don't have any information about what was recovered yesterday.

No, this is not pertaining to items that were recovered yesterday. The witness is testifying to items that were recovered some time ago from other evidence. This witness is describing right now trace evidence that was recovered from items that were seized from the crime scene, and the defense is in full possession of that information.

Your Honor, my recollection of the testimony of this witness is items 94 through 109 refer to items seized yesterday from a search warrant. We have not received any of this information. We asked for it yesterday.

Your Honor, we didn't -- the people didn't have the information either, and none of the items seized yesterday will be the subject of any testimony in this hearing because no one's had a chance to look at it yet, it was so recently seized, and the property reports are presently being compiled. All this witness did was write down the numbers. There's been no attempt -- no time to look at those items for any purpose whatsoever. The property report that will be put together with the return to search warrant will be given to counsel as soon as the people get it. At this time I just asked the witness to jot down the item numbers so it could be indicated to counsel what has or has not been looked at for future purposes.

All right. So for purposes of the hearing today, no determination whatsoever as to sufficiency of samples regarding items that were recovered and the execution of the search warrant a couple of days ago is being offered; correct?

None.

Okay. All right.

Your Honor, in that regard, my understanding is that as soon as the search warrant is executed, a return to the search warrant must be filed. And as soon as that is done, we would like to have the court order immediately to have those items listed and made available to us.

Your Honor, as counsel should be aware, the police have ten days to prepare a return to search warrant, at which time the property report listing what has been seized is attached to that return, and the law will be complied with as it has been throughout this case.

Yes. They do have ten days to file their return, and of course the continuing discovery that is occurring in this matter does require that those matters, of course, be turned over to the defense. In the event that you do have that completed before the ten days, I would ask you to turn that over to the defense as quickly as possible.

Certainly, Your Honor.

All right.

BY MS. CLARK:

So with respect then to -- item number 110 is your number for what?

Item number 110 is just a number given to trace evidence recovered from item number 9.

And that --

That was a glove, and our policy is that whenever we recover trace evidence, that rather than just putting it in a bindle or a bundle with the original item, we book it as a separate item number. Now that evidence was all viewed by the defense in my presence on the 24th of this month. They saw this. It just had not had an item number assigned to it at the time.

And the trace evidence you're talking about is number 110, which was viewed by the defense last week, was what?

Hairs and fibers.

Recovered from a glove?

Recovered from item number 9, the glove, yes.

And number 111?

Was hairs and fibers recovered -- trace evidence again recovered from item number 27.

Which was what?

Item number 27, I believe, is a cap. I have to keep shifting back and forth. Yes, it's a cap. That was recovered from the driver's floor of the Bronco.

And again, that item was viewed by the defense last week as well?

Yes.

And item number 112?

Is trace evidence recovered from item number 37. That is a left-handed leather glove.

And what is the trace evidence recovered from that left-handed leather glove?

Yes.

What is the trace evidence?

It's hairs and fibers in this case.

Also examined by the defense last week?

Yes.

Item number 113.

Was hairs recovered from item number 38, which is a blue knit cap.

Did you say that was hairs recovered from a blue knit cap?

Yes, a blue knit cap. And some fibers also, I'm sorry.

And that was also viewed by the defense last week?

Yes.

So now, with respect to those hair items, I'm going to come back to those later. Let's go back now and address the blood splits that have been requested. Now, based on your training and your qualifications, are you qualified to indicate to this court what volume of sample is needed for each test?

Basically, yes. An overall evaluation.

Now, with respect to items 1 through 60, and items 82 through 87, did you make a determination as to whether a blood split for the defense on those -- any of those items would be possible after the testing of those items on all standards available would be possible?

Yes. We made an estimated evaluation of the samples and found that a few of them appear to be sufficient for split after the whole battery of tests is completed. There's no guarantee until we complete those tests, however, other than on the samples taken from the victims and the defendant. There is plenty of sample for split.

When you say "samples taken from the victims and the defendant," you mean --

Those are the standards.

The standards.

The reference samples, the whole blood taken from Mr. Simpson and the whole blood swatches, frozen swatches, taken at the time of autopsy from the coroner's office.

Now, can you tell us, identifying by item number, which ones you determined may, after we've completed the -- your testing on them, may permit for a split?

Certainly. Item number 3, which is a cigarette butt recovered from the street, would be tested, and there should be plenty for a split after we're done. Item number 7 is several swatches containing red stains recovered from a driveway, and it is possible -- looks fairly good that that could have enough left for a split after the testing is done. Item number 12 also has several swatches of different sizes, and they are fairly dark red; and again, those are -- appear to be a good possibility for a split after our testing is all done.

Item number 17?

Item number 17, as stated before, is a reference sample from Mr. Simpson, and there's plenty of -- there will be plenty of that available for a split. Item number 42, there is again several swatches, fairly medium to dark red in color, and there should be enough for a split at the end of the testing. Item number 44, that's possible. Those appear to be very much weaker, but there are several swatches and so there's a good possibility of a split on that item also. Number 47, there's plenty there. We have no question there will be enough for a split when we're done. Item number 49 --

Excuse me.

I'm sorry.

Can you say for certain that a blood split could be provided before the testing has been completed?

No, not actually. There could be something -- this is our best estimate, again. There could be something go wrong. There may be not as much white blood cells there as we need, and so we could be wrong. The best guess, without actually starting to extract the evidence and prepare preliminary gels on it, we can't tell for sure. Item number 49, there should be -- again, appears to be plenty available for a split when we're done with our testing. Item number 50 is a little weaker but has a good possibility for a split after we're done. Item number 57 appears to be possible for a split, but after we're done testing. Again, as indicated earlier, items number 72 and 82, blood swatches from the victims, will both -- plenty material available for a split after we're done.

Those are blood samples taken from the victims?

Reference samples. Yes. They're listed as coroner's samples. And those are the only items at this time that we feel fairly confident that when we're done there will be sufficient sample for a split.

Now, before all of the testing proposed to be done on these, all of the items, has been completed, is there any way to know with certainty whether any of these items can be turned over -- can be split and given to the defense for independent testing?

Not without doing the analysis, except possibly on the reference samples. But without doing the analysis, we don't know how much we would need and therefore could not even begin to estimate how much they would need to have either.

In other words, leaving aside the issue of the reference sample -- which I understand the blood samples we're going to have plenty of with respect to the evidence samples -- is there any way to know whether at this time, before the testing has been conducted, there will be sufficient material left to provide a blood split to the defense?

Cannot be done?

Cannot.

But at this time, for sure you can rule out certain items that you know would be incapable of providing a split?

Yes. There are many very, very small samples here that may only lend themselves to one type of test at best.

So the items that you've listed for us here today then are possibles, but you will not know until the testing has been completed?

That's correct.

Now, with respect to hair evidence, did I inform you yesterday that the defense was making a request to limit the samples of hair taken from the

Yes, you did.

And what was your response?

And why was that?

Because it's impossible to, from one hair, to make any kind of determination microscopically for a reference standard from one hair to determine that's similar to other hairs.

What is the standard number of hairs required or the method of retrieving sample hairs from a hairs to hairs recovered from a crime scene or item of evidence?

The method of retrieval is such that you take samples from all parts of the head: the front, both sides, the crown and the back. And it's by pulling and combing, because you do absolutely need some of the roots if at all possible. The second thing is that the recommendation in several articles, including that made by the F.B.I., is 30 to 100 hairs, and then you take a random sample of that 30 to 100. So they are suggesting that 20 reference hairs from each of the five areas, roughly making the hundred.

Then let me ask you this. How do you make sure that you don't mix hairs taken from different parts of the head?

That's not important. You can mix them once they're taken from different parts of the head. It's not -- it's just that the hair differs on different parts of the head and you want to get an overall random sample, and then you take those and you get an overall picture of what the hair looks like, and then you compare it to evidence hairs taken, because you have no idea where those evidence hairs came from.

When you recover hairs from a crime scene or an item of evidence left at a crime scene, you don't know what part of the head that hair came from?

No, you do not.

And with respect to -- as a matter of habit and custom, are the hairs recovered from the head of a recovered for reference purposes?

We segregate them sometimes when they're taken. It's not an absolute necessity. It's kind of an individual choice on the examiner.

With respect to comparison and analysis of hairs using the test known as P.C.R. -- And that's for D.N.A.; is that correct?

That's correct.

-- How many hairs would be required to be recovered from the defendant for the purposes of comparison -- comparing his hair to evidence that was recovered from the crime scene?

Well, for P.C.R., we usually use the reference blood sample versus the crime scene hair. And as far as hair, it is possible to do P.C.R. on one hair root. That's the minimum you must have, but there's no guarantee. There's some ratios, and I don't know the percentage off hand as to how many times that has to be done or how many times they've been successful with one hair. It all depends on how good the root is, the age of the sample, et cetera.

Then for the purpose of performing comparison, using the D.N.A. test known as P.C.R., would you say that it was an accepted scientific practice or procedure to use only one head hair, if you were going to compare it that way, taken from the defendant to evidence hair recovered from a crime scene? Would that be an appropriate method to use?

No. I wouldn't compare hair to hair for P.C.R. Again, I'd use a reference whole blood preferably.

Preferably. But if you did, would you say it was an accepted scientific practice to use only one hair from the defendant for that purpose?

Your Honor, she's asked and answered that question three times. She said for D.N.A. you do not need any hair. You compare blood to the hair.

No, Your Honor, she hasn't answered my question, and this goes to counsel's representation concerning his -- the fact that he claims his expert said we only need one to three hairs, and that's why I'm inquiring as to this particular topic.

Do you understand the question?

Well, let me see if I can -- can I try to attempt to --

Well, I can reframe it, actually.

Okay.

BY MS. CLARK:

Can you tell us whether it would be proper scientific procedure to perform a hair comparison using only one head hair from the defendant to compare to crime scene hairs for any test?

No.

No.

I have nothing further.