Kobe Bryant Transcripts

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August 2, 2004 The following is the redacted transcript released Monday from the closed June 22 hearing in the Kobe Bryant case. It contains testimony from a defense DNA expert. The transcript does not contain rebuttal evidence from prosecutors.

REPORTER'S REDACTED TRANSCRIPT OF PROCEEDINGS ____________________________________________________________ This matter came on for Hearing on Motions on Tuesday, June 22, 2004, before the Honorable W. Terry Ruckriegle, District Court Judge. ____________________________________________________________

Office of the District Attorney Fifth Judicial District Mark D. Hurlbert, Attorney No. 24606 Greg Crittenden, Attorney No. 26001 Ingrid S. Bakke, Attorney No. 19680 Dana J. Easter, Attorney No. 14986 955 Chambers Avenue P.O. Box 295 Eagle, Colorado 81631 Telephone: (970)328-6947; Facsimile: (970)328-1016 HADDON, MORGAN, MUELLER, JORDAN, MACKEY & FOREMAN, P.C. Harold A. Haddon, Attorney No. 1596 Pamela Robillard Mackey, Attorney No. 15136 Kevin M. McGreevy, Attorney No. 27407 150 East 10th Avenue Denver, Colorado 80203 Telephone: (303)831-7364; Facsimile: (303)832-2628

HECKMAN & O'CONNOR, P.C. Terrence P. O'Connor, Attorney No. 9574 P.O. Box 726 Edwards, Colorado 81632 Telephone: (970)926-5991; Facsimile: (970)926-5995 Wheeler & Clune, LLC. John C. Clune, Attorney No. 27684 Alpine Bank Building, Suite 101 P.O. Box 8612 Avon, Colorado 81620 Phone: (970)845-8680 Facsimile: (970)845-8604 E-mail: jclune@wheelerandclune.com ____________________________________________________________

ELIZABETH JOHNSON Direct Examination by Mr. Haddon 5 Cross-Examination by Mr. Hurlbert 35

3 1 MORNING SESSION, TUESDAY, JUNE 22, 2004 2 (Court convened this matter at 8:41 a.m., and the 3 following proceedings were held in camera with counsel and 4 Mr. Bryant present.) 5 THE COURT: Good morning, ladies and gentlemen. 6 The Court will call 2003 CR 204, People v. Kobe Bryant. We 7 are proceeding this morning on motions hearing relating to 8 continuation and completion of the Rape Shield evidence. 9 Are the People ready to proceed? 10 MR. HURLBERT: Judge, Mark Hurlbert, Dana Easter, 11 Greg Crittenden and Ingrid Bakke on behalf of the People. 12 Also present is Mr. John Clune, the victim's attorney and 13 her representative. 14 Judge, also sitting at the People's side is 15 Dr. Henry Lee, who's an advisory witness, and actually an 16 expert that's going to listen to Dr. Johnson's testimony. 17 And also on our side is Dr. Michael Baden. Same thing, 18 Judge, advisory witness. 19 THE COURT: Thank you. 20 MRS. MACKEY: Good morning, Your Honor. Terry 21 O'Connor, Hal Haddon and Pamela Mackey on behalf of Kobe 22 Bryant. He appears with us, Judge. Also in the courtroom 23 for the defense are three lawyers, Mark Johnson, Kevin 24 McGreevy, and Anne Lundberg. And we have three experts also 25 present, Dr. Libby Johnson, Dr. Peter DuFour, and Yvonne

4 1 Woods of the C.B.I. 2 THE COURT: Thank you. 3 We are to proceed, then, I believe -- beg your 4 pardon -- going to start with Dr. Johnson. 5 Before we do, the clerk had tendered a couple of 6 orders. One relates to the stipulation on telephone 7 records, and when I was reviewing my materials, I found that 8 it had been granted, but apparently the order not actually 9 signed on May 10th based upon the stipulation, and so I will 10 go ahead and sign that. 11 The other is the order establishing deadline for 12 the evidentiary orders regarding text messages, and the 13 Court had granted until June 28th after yesterday's 14 discussion on that, and I will go ahead and sign that. 15 There's no objection to either of those. 16 All right, then. Mr. Haddon. 17 MR. HADDON: Yes, Your Honor. We call 18 Dr. Elizabeth Johnson. 19 THE COURT: If you would please raise your right 20 hand. 21 ELIZABETH JOHNSON, 22 having been first duly sworn, was examined and testified as 23 follows: 24 THE WITNESS: Yes. 25 THE COURT: Please be seated at the witness stand,

5 1 and speak up so everyone can hear you. The microphones are 2 on, as you know, you've testified before, so make sure that 3 you speak up loudly enough for everyone to hear you. 4 DIRECT EXAMINATION 5 BY MR. HADDON: 6 Q. Dr. Johnson, could you again tell us your name and 7 your business address? 8 A. Yes. It's Elizabeth Johnson. 1534 North Moorpark 9 Road, number 364, in Thousand Oaks, California. 10 Q. Have you testified previously in this case? 11 A. Yes, I have. 12 Q. And do you remember the dates that you testified? 13 A. Um, early March. I don't remember the date. 14 Q. And were you qualified on March 2nd of 2004 as an 15 expert in certain fields? 16 A. Yes. 17 Q. Do you recall what the fields were that you were 18 qualified as an expert in? 19 A. I believe it was evidence examination -- forensic 20 evidence examination, body fluid identification, and 21 forensic DNA analysis. 22 Q. All right. Dr. Johnson, I'm not going to 23 reiterate all of the questions that I asked you on March 1 24 and 2, but just to give a little context, do you recall 25 testifying on March 2nd about certain consumptive tests that

6 1 you witnessed at the C.B.I. in late February, February 25 2 through 27, of 2004? 3 A. Yes. 4 Q. And can you briefly tell the Court what you recall 5 about what was tested and what the results of those tests 6 were at the C.B.I? 7 MR. HURLBERT: Judge, objection. This is beyond 8 the scope of the fourth offer of proof. 9 MR. HADDON: It's already in evidence and I'm just 10 trying to set some context, Your Honor. 11 MR. HURLBERT: And it's cumulative. 12 THE COURT: Well, I think since it's been quite a 13 while that we had previous testimony. To set the context is 14 a legitimate purpose, so long as that is done. 15 MR. HADDON: And I don't intend to spend much time 16 on it, I just want to bring it in focus. 17 Q. (By Mr. Haddon) So you may answer. 18 THE COURT: Go ahead. 19 Q. What tests you observed at the C.B.I. on February 20 25 through 27, and what the results of those tests were? 21 A. Yes, I do. 22 Q. Okay. Can you tell us generally what those tests 23 were and what the results were. 24 A. There were three items tested that were swabbings 25 from Miss_______ inner thigh, and also swabbings of her

7 1 perineum area and her fingernails. 2 Q. With respect to the swabs from the inner thigh, do 3 you recall where they came from and in what form they 4 appeared prior to being swabbed? 5 A. According to the sexual assault examiner nurse's 6 notes, I believe two swabs -- there were circular areas 7 described, one on one thigh, two on the other thigh, and it 8 was areas of flourescence described by the nurse examiner. 9 Q. And with respect to the thigh swabs, do you recall 10 what the results of the DNA testing were? 11 A. Yes. Well, they were -- actually was spermatozoa 12 observed on the swabs. They were also positive for P30, 13 which is a protein found in seminal fluid. And for acid 14 phosphatase. Now that, the AP and the P30 test, was done 15 prior to my being there, but I did observe the sperm 16 microscopically. 17 And the DNA result was that the -- there was one 18 primary contributor in the sperm cell fraction, and that was 19 the same male individual that was found in the yellow 20 panties. 21 Q. And was that Mr. Bryant? 22 A. No. 23 Q. Can we refer to that person in this examination, 24 the male contributor, as Mr. X? 25 A. Yes, we -- I think we go back and forth between

8 1 Mr. X and male one, so we mean the same person when we say 2 that. 3 Q. All right. With respect to the perineum testing 4 that you observed, can you tell the Court what the results 5 of that testing were? 6 A. Sure. The -- the swab had previously been tested 7 positive for acid phosphatase and positive for P30, which is 8 a seminal fluid protein. We did observe spermatozoa on the 9 slide at that time that I was present, and the DNA in the 10 sperm cell fraction was primarily -- it was a mixture, but 11 of DNA of Mr. X and Miss ________. Mr. Bryant is excluded 12 as being a contributor to that sample. 13 Q. And were there also fingernail clipping extracts 14 which were tested in your presence in February of 2004? 15 A. Yes. 16 Q. And what were the results of those tests? 17 A. I believe the DNA was from Miss________ as the 18 source. 19 Q. And these were fingernail clippings taken from 20 Miss_________? 21 A. Yes. 22 Q. Do you recall whether or not there was any DNA 23 from Mr. Bryant present in those fingernail clipping? 24 A. There was not. 25 Q. All right. Moving forward, did you, when you were

9 1 at the C.B.I., obtain certain split samples? 2 A. Yes. 3 Q. Can you tell the Court what split samples you 4 received from the C.B.I. and how they were split? 5 A. The splits that I received at that time were -- or 6 observed being split at that time, and then they were 7 shipped to us later, were splits from Miss_______ sexual 8 assault kits of swabs, swabbings -- wait a second. It was 9 swabbings from her neck and jaw, cervical swabs, oral swabs, 10 buccal swabs, and vaginal opening swabbed, vaginal swabs, 11 anal swabs. 12 We also received splits of the penal swabs from 13 Mr. Bryant, and digit swabs from Mr. Bryant. And we 14 received the reference blood sample splits also, and then 15 splits of the soaking solution that was used to soak off the 16 thigh swab and the perineum swab. 17 Q. All right. With respect to the swabs themselves, 18 who did the splitting? 19 A. Mrs. Woods and I were together looking at the 20 swabs, and I -- she asked me to choose which ones I wanted, 21 and I chose, and she put them in separate packing for me. 22 Q. When you say Mrs. Woods, is that Yvonne Woods of 23 the C.B.I.? 24 A. Yes. 25 Q. And is she in the courtroom today?

10 1 A. Yes. 2 Q. The swabs, were they cut in half, or were there 3 two swabs that -- that were present from each area of the 4 body? 5 A. Sometimes there were two -- sometimes there were 6 four swabs, and I took two for my set, and sometimes if 7 there were just two swabs total, I took one. 8 Q. Were any of the swabs actually cut in two with you 9 taking half and C.B.I. retaining half? 10 A. No. Not -- not that dramatically. Sometimes 11 there -- sometimes one of the swabs had a small part of the 12 tip removed that had previously been used by C.B.I. to do 13 some presumptive tests. 14 Q. All right. In addition to getting those split 15 samples that you've described, did you also take possession 16 of some physical evidence, or was it shipped to you, for 17 analysis? 18 A. Bulk evidence, you mean? 19 Q. Yes. 20 A. Yes, it was. 21 Q. And can you tell the Court generally what that 22 bulk evidence was? 23 A. Various items of clothing from Miss _________. 24 Sport coat, dress, shoes, and underwear, purple panties, 25 yellow panties, and some of the crotch parts that were

11 1 excised from those. And clothing from Mr. Bryant. 2 T-shirts, outer clothing. 3 Q. And were all of these items of evidence, the 4 splits and the bulk clothing, subjected to analysis by a 5 laboratory that you work with in conjunction with? 6 A. Yes. 7 Q. And what's the name of that laboratory? 8 A. Technical Associates. 9 Q. And who did the testing and analysis of all of 10 this evidence? 11 A. Pretty much everybody there, including myself. I 12 think everybody was involved in -- in it. The primary 13 evidence examination of the items was done by myself and 14 Mark Taylor. 15 Q. Who's Mark Taylor? 16 A. Mark Taylor is the president of Technical 17 Associates. 18 Q. Okay. And did he participate in both the evidence 19 examination and the DNA testing itself? 20 A. He definitely participated in the evidence 21 examination, and to -- probably in the DNA testing. I would 22 have to go through the data sheets to see. A lot -- much of 23 the time the actual extraction, amplification processes are 24 handed off to an analyst, and then Mark and I analyze the 25 data that resulted from those tests.

12 1 Q. All right. I want to ask you about some of the 2 tests that you conducted and what you found. And as a 3 preface to that, did you prepare a summary of those tests? 4 Of the tests you conducted, the DNA tests? 5 A. I prepared a report, yes. 6 Q. All right. That's been probably provided to the 7 Court. I want to call your attention to Exhibit 1 of that 8 report. Do you have that in front of you? 9 A. Are you talking about the May 8th report? 10 Q. The May 8th report? 11 A. Okay. Table 1? 12 Q. Table 1. Correct. 13 A. Okay. 14 Q. Do you have that in front of you? 15 A. Right. 16 Q. Let me ask you about various items of physical 17 evidence and what tests you performed and what the results 18 of those tests were. 19 First of all, with respect to the purple panties. 20 What kind of tests did you perform on the purple panties? 21 A. Well, the panties and the crotch were separate, so 22 they got separate evidence numbers. Initially they were 23 photographed, examined under UV light, examined under 24 visible light. We made tests, presumptive tests, for the 25 presence of blood, which is ortho-tolidine and hydrogen

13 1 peroxide were our tests reagents. 2 We did testing for acid phosphatase, testing for 3 P30 protein. For amylase, which is an enzyme found in 4 saliva in high concentrations. And that was it at our 5 initial examination stage. 6 Q. How many cuttings did you take from the purple 7 panties, including the crotch, for examination? 8 A. Let's see. There was one from the bulk of the 9 panties -- 10 Q. When you say bulk, where is that located 11 physically? 12 A. Well, that's the part that remains with the 13 waistband attached, and that's what I call the bulk of the 14 panties. And there were four taken from the part of the 15 crotch that had been previously cut out by C.B.I. 16 Q. Do you know where the C.B.I. took its cutting for 17 C.B.I. and DNA analysis purposes, from the purple panties? 18 A. Yes. From the string part, toward the rear of the 19 panties. 20 Q. Can you tell the Court what the results of your 21 testing were with respect to the cuttings you took from the 22 purple panties? 23 A. Okay. Each of the cuttings? 24 Q. Yes. 25 A. Sure. The -- in terms of presumptive tests or DNA

14 1 analysis or both? 2 Q. Both. 3 A. Both. Okay. Both. The first cutting that was 4 14-A was from the panties itself, and there were visible 5 blood staining and ortho-tolidine positive, so there was a 6 presumptive positive test for the presence of blood. That 7 particular cutting was positive for acid phosphatase and 8 P30, and a few sperm. And there were also some nucleated 9 epithelial cells there. 10 In terms of the DNA testing itself, in the sperm 11 fraction when we ran the STR testing at, the results were 12 that there was a mixture. And again, confining my possible 13 donors as we did in our chart to the three individuals, 14 Mr. Bryant, Miss ________, and Mr. X, or male one, we found 15 that male one was the -- in a larger quantity than 16 Mr. Bryant, and perhaps a trace of Miss _______ in that -- 17 in that sample. 18 Q. In the sperm fraction you find both Mr. Bryant and 19 Mr. X? 20 A. Yes. 21 Q. And Mr. X in larger quantities than Mr. Bryant? 22 A. That's right. 23 Q. All right. Tell us about the second cutting you 24 took from the purple panties, and what the results of those 25 tests were.

15 1 A. The next cutting we took was our number 14-A1, and 2 that was from a portion of the string part of the -- 3 Q. A portion of the string? 4 A. Of the string part of the excised crotch. It was 5 presumptive test for blood positive, with ortho-tolidine. 6 Positive for acid phosphatase and P30, and a few sperm were 7 detected. 8 There were -- the actual DNA typing with STR 9 analysis was that Mr. Bryant, in the sperm fraction, 10 Mr. Bryant was present in a larger quantity than male one 11 and Miss ________ at roughly the same concentrations, male 12 one and Miss _________. 13 Q. So in that particular cutting of the string 14 portion of the panties you find Mr. Bryant predominant, and 15 also Mr. X or male one? 16 A. Yes. They both are present, yes. 17 Q. All right. Tell us about the third cutting you 18 took from the purple panties. 19 A. Okay. That's our 14-A2. It's a portion of the 20 crotch. It's ortho-tolidine positive, so there was blood 21 present. Acid phosphatase and P30 positive. A few 22 spermatozoa were detected. 23 The sperm cell fraction on STR analysis was that 24 male one was predominant, more so than Miss ________, and a 25 trace of Mr. Bryant. There was a full profile of male one

16 1 detected and peak heights were quite high. 2 Q. And male one or Mr. X is the male who's found in 3 the yellow panties? 4 A. That's the same person. 5 Q. By the C.B.I? 6 A. Correct. 7 Q. And was there any trace of Mr. Bryant found in the 8 yellow panties by either you or the C.B.I? 9 A. No. 10 Q. All right. Tell us about the fourth -- I believe 11 the fourth cutting from the purple panties. 12 A. That's our 14-A3. That's another portion of the 13 crotch, positive for the ortho-tolidine indicating presence 14 of blood, and visible blood was seen. Acid phosphatase and 15 P30 positive. A few sperm detected. In the sperm cell 16 fraction on the STR analysis, the possible donors are that 17 Mr. Bryant was predominant, then followed by Miss ________, 18 followed by male one. 19 Q. All right. And was there a fifth cutting that you 20 took from the purple panties? 21 A. Yes. That's our 14-A4. It was ortho-tolidine 22 positive, AP positive, P30 positive, a few spermatozoa were 23 detected. The DNA typing was very low. We did not get full 24 profiles on any particular person, but we -- the alleles 25 that we did detect could have come from these three

17 1 individuals. So it's possible that all three people were in 2 there, it's just very, very low profile. 3 Q. When you say allele, could you first spell it and 4 then tell the Judge what that is. 5 A. It's a-l-l-e-l-e. And allele is a -- it's a 6 genetic marker. Usually people have -- at any given genetic 7 location they will have one -- they will have two alleles. 8 One from their mother, one from their father. It may appear 9 as though they only have one, and that's because they got 10 the same allele, or genetic trait, from their mother and 11 their father. 12 Q. Now, in addition to the tests you did on the 13 purple panties, did you do tests on the cervical swabs from 14 Miss ________ sexual assault examination kit? 15 A. Yes. 16 Q. And could you tell us what the results of your 17 testing on Miss _________ cervical swabs were? 18 A. Okay. Those are our 16-D, two cervical swabs. 19 Weak positive for ortho-tolidine. That's again the 20 presumptive test for blood. The acid phosphatase test was 21 inconclusive. The P30 test was negative. And we observed a 22 few spermatozoa. The sperm cell fraction at the DNA on 23 STR -- on STR testing was that Miss _________ was 24 predominant. Again, that's carryover from the female 25 fraction, from the non-sperm cells. And a low level of male

18 1 one, or Mr. X, as we call him. And Mr. Bryant is excluded 2 at that focus. 3 Q. So Mr. Bryant is excluded as a source of the sperm 4 you found on Miss __________ cervical swab? 5 A. Right. And we then outsource that extract for X 6 chromosome testing. 7 Q. Why'd you do that? 8 A. Well, Y chromosome testing targets only the short 9 tandem repeats on the Y chromosome. So any carryover 10 contribution from Miss _________ would not be detected in 11 doing that type of testing. 12 Q. Who did the Y chromosome testing? 13 A. A lab called ReliaGene. 14 Q. And what were the results of their tests on the 15 cervical swab extract? 16 A. That was -- they did a five focus examination, 17 fiveplex, and they got results at four or five loci, and 18 that was a single source, and it was a Mr. X. Mr. Bryant 19 was excluded. 20 Q. All right. Did you also conduct testing of the 21 vaginal swabs which you received from the C.B.I. 22 A. Vaginal or vaginal opening? 23 Q. We can do either. 24 A. Next on my list is vaginal opening, so. 25 THE COURT: I'm sorry, I couldn't hear you.

19 1 THE WITNESS: I said, next on my list is vaginal 2 opening. 3 Q. (By Mr. Haddon) Did you conduct tests of vaginal 4 opening swabs from Miss _______ sexual assault examination 5 kit? 6 A. Yes. 7 Q. And can you tell the Court what the results of 8 those tests were? 9 A. Yes. That's our 16-K. It was one vaginal opening 10 swab, positive with ortho-tolidine, positive with acid 11 phosphatase and P30 testing. A few spermatozoa were 12 detected microscopically. 13 The sperm cell fraction, using the STRs in-house, 14 was that Miss ________ was the predominant donor, again that 15 was carryover from the female fraction, and Mr. -- or male 16 one, Mr. X, was also present. A full profile was detected, 17 possibly a trace of Mr. Bryant. And then when that extract 18 was sent or analyzed at ReliaGene with Y chromosome testing, 19 male one, or Mr. X, was present at all four -- at all five 20 loci tested, and there was possibly some weak alleles at 21 loci that could have come from Mr. Bryant. So he was 22 missing at two, so that could be due to low level. 23 A. At two loci of the five. 24 Q. All right. Did you conduct testing on swabs taken 25 from Miss____________ vagina?

20 1 A. Yes. 2 Q. And can you tell the Court what tests you 3 conducted and what the results of those tests were? 4 A. That's our 16-M, and it was two vaginal swabs. 5 They were positive with ortho-tolidine, indicating -- even 6 though they were not visibly stained they were indicating 7 chemical reactivity for the presence of blood. The acid 8 phosphatase was inconclusive. The P30 test was positive, 9 and there were a few spermatozoa present. 10 And on the Profile Plus testing, the STR testing 11 we did, Miss___________ was the predominant DNA donor of the 12 sperm cell fraction, and male one was present. All of his 13 alleles were present for male one. Mr. Bryant was excluded. 14 Q. And these are swabs taken from the interior of 15 Miss___________ vagina? 16 A. That's usually what a swab is, internally. An 17 internal vaginal swab. 18 When we sent that off for -- I'm sorry, I said 19 that was P30 positive. That's P30 negative on that swab. 20 THE COURT: I'm sorry. You said that P30 was 21 negative? 22 THE WITNESS: It's P30 negative on the vaginal 23 swab. 24 THE COURT: You had previously -- 25 THE WITNESS: I may have.

21 1 THE COURT: And AP negative? 2 THE WITNESS: AP was -- AP was inconclusive. 3 THE COURT: Inconclusive. Thank you. 4 I just -- maybe now is a good time to maybe sure 5 you have all of the spellings. What do you need Michelle? 6 THE REPORTER: I'll check at a break. 7 THE WITNESS: And then lastly, when that sample 8 was analyzed for the Y chromosome on the vaginal swabs, 9 there was results at five -- all five loci that were tested, 10 and it was male one present. 11 The lab actually did two separate amplifications 12 on that sample, and in one amplification it just showed 13 single source, male one. In another amplification they had 14 two weaker alleles come up at two loci, which could have 15 come from Mr. Bryant, that would mean he would be -- his 16 alleles at three of the remaining loci would have dropped 17 out. It was not reproducible between the two amplifications 18 for the presence of a second donor, but male one was 19 consistently present between their two amplifications at all 20 five loci on that sample. 21 Q. And you actually observed sperm in the vaginal 22 swab? 23 A. Yes. 24 Q. Did you conduct any testing of Miss__________ anal 25 swab?

22 1 A. Yes. And that is our 16-N, as in Nancy. It was 2 two anal swabs. These were not tested with ortho-tolidine, 3 they were weak positive for acid phosphatase and positive 4 for P30, and a few spermatozoa were observed. 5 The profile obtained using Profiler Plus, 6 in-house, was that male one and ___________ profiles were 7 approximately equal and in predominance over Mr. Bryant, 8 which could be Mr. Bryant's profile. 9 And the Y chromosome testing showed that Mr. -- 10 male one or Mr. X was -- results were obtained at four loci, 11 and possibly Mr. Bryant's alleles showed up at two loci, at 12 a weak level. 13 Q. I believe you previously said you conducted some 14 tests on the yellow underwear, correct? 15 A. Right. 16 Q. Can you tell the Court in more detail what tests 17 you conducted and what the results of those tests were? 18 MR. HURLBERT: Objection, Judge. That is beyond 19 the offer of proof. 20 THE COURT: Response. 21 MR. HADDON: I should look at the offer of proof. 22 THE COURT: I guess we all could do that. 23 MR. HADDON: Mrs. Mackey tells me that 24 Mr. Hurlbert's correct, that it is beyond the offer of 25 proof, so I'll move on.

23 1 Q. Did you conduct tests on Mr. Bryant's T-shirt? 2 A. Yes. 3 Q. The T-shirt that police say he was wearing during 4 his encounter with Miss___________ -- 5 MR. HURLBERT: Judge, that's also beyond the offer 6 of proof. 7 THE COURT: What's the date on that? 8 MR. HURLBERT: Judge, the offer of proof is May 9 21st, 2004. 10 MR. HADDON: Your Honor, there is reference to 11 C.B.I.'s findings with respect to the yellow panties, but 12 not specifically Dr. Johnson's and Technical Associates. So 13 we will rely on the C.B.I. findings in that respect. 14 THE COURT: All right. So then you're going to 15 amend that questioning with respect to Dr. Johnson? 16 MR. HADDON: With respect to the yellow underwear 17 we're going to rely on the C.B.I. findings, with respect to 18 this hearing. I am going to pursue a line of questioning 19 with regard to the T-shirt and with regard to the penile 20 shaft swabs, because they don't show the presence of -- 21 MR. HURLBERT: Objection, Judge. The -- 22 THE COURT: Let him finish, please. 23 MR. HURLBERT: Okay. 24 MR. HADDON: They don't show the presence of 25 Mr. X, and therefore they're not the kind of findings that

24 1 would be presumptively irrelevant in a Rape Shield. They 2 only show the presence of Mr. Bryant. But those tests are 3 important to the conclusions that are drawn. 4 THE COURT: Mr. Hurlbert. 5 MR. HURLBERT: Judge, it's beyond the scope of 6 their offer of proof. It says the defense seeks to recall 7 Mrs. Johnson on June 21st with respect to the scientific 8 evidence referenced above. 9 The scientific evidence referenced above are 10 contained in part A and B of our offer of proof. The sperm 11 and semen of Mr. X is present. The male DNA from the sperm 12 extracted from Miss __________ July 1, 2003, cervical swab, 13 vaginal contents swab, vaginal opening swab and anal swab 14 are all consistent with the DNA profile of Mr. X. 15 That's their offer of proof, Judge. I would ask 16 that they be limited to that offer of proof. 17 MR. HADDON: For purposes of a Rape Shield 18 analysis only the presence of Mr. X is the subject of this 19 hearing. The lack of presence of Mr. X relates to contact 20 with Mr. Bryant, which isn't subject to the Rape Shield law, 21 and we wish to draw some conclusions from the lack of 22 presence. And those are test results that Mr. Hurlbert has 23 had for over a month. 24 MR. HURLBERT: Not a part of Rape Shield, and 25 what's the relevance? If they're relevant, then they should

25 1 have been included in their offer of proof. 2 THE COURT: Well, it's not a part of Rape Shield, 3 so why are we going into it at this juncture? 4 MR. HADDON: Because some of the conclusions that 5 Dr. Johnson and other experts draw require reliance in part 6 on the lack of Mr. X on Mr. Bryant's penile shafts and on 7 his T-shirt. And so although it's not evidence that is 8 subject to exclusion under the Rape Shield statute, it is 9 evidence, direct evidence, that forms the basis for some of 10 the opinions that are going to be expressed. Opinions that 11 relate to evidence that is presumptively subject to the Rape 12 Shield statute. 13 THE COURT: Anything further, Mr. Hurlbert? 14 MR. HURLBERT: No, Judge. 15 THE COURT: Well, it is relevant to the issue 16 relating to the presence or a lack thereof and the ultimate 17 opinion. It is not subject to the requirement for the 18 disclosure under the Rape Shield statute. The objection is 19 overruled. 20 Q. (By Mr. Haddon) Mrs. Johnson, Dr. Johnson, I want 21 to ask you what tests you performed with respect to 22 Mr. Bryant's T-shirt, the T-shirt that he was allegedly 23 wearing during his encounter with Miss___________? 24 A. Okay. That's a white Nike T-shirt, and then there 25 was also some cuttings that were removed from that T-shirt

26 1 that we got from C.B.I. so they were examined together, 2 photographed, and there were presumptive tests made for the 3 presence of blood using ortho-tolidine reagents. We did 4 tests for the presence of amylase. We did tests for -- 5 Q. Could you speak up a little bit? 6 A. I'm sorry. We did tests for the presence of 7 amylase, tests for the presence of P30 and extraction, a 8 differential extraction in such a way that we could see 9 sperm, or nucleated -- epithelial cells, microscopic 10 examination. 11 Q. And how many cuttings did you take from that 12 T-shirt? 13 A. Um, in totality there were nine -- between the 14 cuttings from the shirt and the cuttings from the excisions 15 that C.B.I. had previously excised, we tested nine samples. 16 Q. And can you tell the Court in summary what the 17 results of those tests were? 18 A. Um, in summary -- and then we did a DNA analysis. 19 And in summary we found only Mr. Bryant and Miss _______. 20 We found no indication of male one or Mr. X at all on any of 21 the samples that we tested, at Technical Associates. 22 Q. Let me ask you some questions about the penile 23 shaft swabs that were tested. First of all, are you aware 24 of the results of the C.B.I. testing on the penile shafts 25 taken from Mr. Bryant on July 2nd, 2003?

27 1 A. Yes. 2 Q. And what were those results? 3 A. Um, only a mixture -- I believe a mixture of 4 Mr. Bryant and ____________ were detected. There was no 5 indication of Mr. X. 6 Q. Did you also conduct tests on the penile swabs 7 from Mr. Bryant? 8 A. Yes. 9 Q. Can you tell the Court what the results of those 10 tests were? 11 A. Yes. We found P30 positive and a few sperm 12 observed, and the spermatozoa were all single-source, 13 Mr. Bryant. There was no Mr. X detected at all. There was 14 also no -- none of Mr. X detected in the non-sperm fraction. 15 So he -- Mr. X was not on that sample at all. 16 Q. Now, based on the tests that you conducted and 17 based on the tests that C.B.I. conducted that you're aware 18 of, have you been able to form any opinions with respect to 19 the prosecution's theory that the DNA from Mr. X was 20 transferred from the yellow panties? 21 A. Yes, I have. 22 Q. All right. And what is your understanding of what 23 the prosecution theory is regarding transference? 24 MR. HURLBERT: Judge, objection. We've already 25 been over this once before on March 2nd. I think we are

28 1 cumulative and beyond the scope of this particular hearing. 2 MR. HADDON: We went over it before we had the 3 benefit of their tests. 4 THE COURT: Well, it's not beyond the scope. And 5 your response is that it was discussed prior to having the 6 benefit of the tests? 7 MR. HADDON: Yes. Prior to any of Dr. Johnson and 8 Technical Associate's tests. 9 THE COURT: Reply. 10 MR. HURLBERT: We're talking about two different 11 things here, Judge. What she has testified to here today is 12 the DNA found inside the vaginal opening, the vaginal swabs, 13 the cervical swabs, and the anal swabs, and also the purple 14 G-string. That's what we're talking about here today. 15 What they're trying to bring in is the DNA found 16 on the two parts of the perineum and the inner thigh, and, 17 Judge, we have already been over that, we have already done 18 that on March 2nd, and that's the People's idea that it -- 19 that the transfer comes from those. So we are talking about 20 two different issues here. 21 THE COURT: But the objection as to cumulative is 22 with regard to testimony prior to these testing being 23 conducted. 24 MR. HURLBERT: Correct. Correct. These tests 25 are -- as I said, these tests are different tests, they're

29 1 different parts of the body, they're on different pieces of 2 evidence than the tests that were done before, which is the 3 consumptive testing that Dr. Johnson did with Agent Woods, 4 which we went over with on March 2nd. 5 THE COURT: In that context of the tests that had 6 been completed at that point in time. 7 MR. HURLBERT: Correct. But these are two 8 distinctly different tests. 9 THE COURT: Objection's overruled. 10 Q. (By Mr. Haddon) I think I was at the point of 11 asking you what your understanding of the prosecution's 12 transfer theory is? 13 A. Well, my understanding of their theory is that 14 Miss __________ put on a pair -- the yellow panties that had 15 semen in them to -- REDACTED 16 that is semen and sperm from Mr. X, and that those yellow 17 panties with this dry semen stain are the source of all of 18 the sperm and semen attributable to Mr. X found on her body, 19 in her internal swabs, and basically everywhere that Mr. X 20 is found, and that would include the purple panties as well. 21 Q. And do you have an opinion to a reasonable degree 22 of scientific certainty as to whether or not the scientific 23 evidence supports that theory? 24 A. I do. 25 Q. And what is your opinion?

30 1 A. My opinion is that that transfer theory cannot 2 support all of these findings in totality. 3 Q. And can you explain that to the Court, what are 4 the bases for that opinion? 5 A. Sure. Well, first of all, the thigh swabs that 6 were taken from Miss __________, and the source of the sperm 7 in the thigh swabs was Mr. X. It also contained detectible 8 seminal fluid protein. There was no indication of blood 9 present on those thigh swabs. I test -- I tested those, 10 Mark Taylor at Technical Associates, and it was negative 11 with ortho-tolidine, which is a very, very sensitive 12 chemical test reagent. 13 Q. And was that the same result C.B.I. got? 14 A. They found no blood on the swab. They used a 15 different test reagent, phenolphthalein, but it is also very 16 sensitive. So those swabs were negative for blood. 17 Q. Why is that significant? 18 A. Well, the yellow panties were visibly blood 19 stained, heavily stained with blood, and in order for the 20 yellow panties to be a source of -- or for sperm and semen 21 to be transferred from the yellow panties, they would need 22 to be rewet in order to be -- for this material to transfer 23 to her thighs. This was not crusty, flaky material in the 24 yellow panties, it was well absorbed into the material. So 25 the material, the biological cellular material in the yellow

31 1 panties would need to be wet and then deposited on her 2 thighs. 3 Well, if you assume the wetting agent is blood, 4 then the blood would have also transferred to her thigh 5 area, and that is not detected in these tests. 6 Also the examiner described them as circular 7 spots. I think it would be highly coincidental for someone 8 in the act of putting on underwear to make three separate 9 circular spots on their thighs, if in fact all three or even 10 one is, you know, the source of the semen, which is what the 11 nurse examiner collected. 12 In terms of the external genital swabs, the 13 perineum swab, the vaginal opening swab, those samples could 14 possibly transfer -- enough sperm and semen could transfer 15 from yellow panties to those areas to explain Mr. X being 16 there, but it is highly unlikely to explain how that 17 material got internally, and especially on the cervical swab 18 and the vaginal swab. That seems very unlikely. 19 REDACTED 20 /// 21 /// 22 /// 23 /// 24 Transfer from the yellow panties doesn't explain 25 Mr. X in the purple panties, and he was present in multiple

32 1 cuttings on the purple panties. 2 And more importantly, or very importantly, I would 3 say, not maybe more importantly, the fact that Mr. Bryant's 4 T-shirt which he wore at the time, so we're talking about a 5 snapshot forensic evidence at the time this event, alleged 6 assault happened in the hotel room, neither -- none of the 7 nine samples that we tested, nor did the two samples that 8 C.B.I. tested from his Nike T-shirt, showed any indication 9 of Mr. X at all. 10 Now, if Mr. X had been present, if his sperm had 11 been present internally at the time Mr. Bryant penetrated 12 her, we would expect to find some sample, some low-level 13 amount of sperm from Mr. X on some of those samples or on 14 his penile shaft swab, and those aren't -- that's not found 15 at all. Nothing from Mr. X is found on the any key T-shirt 16 or on Mr. Bryant's penile shaft swab. 17 So in totality, it's just extremely far-fetched 18 and unlikely that transfer from the yellow panties could 19 account for all of these findings. 20 Q. All right. Have you also been able to form an 21 opinion based on a reasonable degree of scientific certainty 22 as to whether the evidence supports the conclusion that 23 Mr. X, or male one, whomever you choose to call him, had 24 sexual contact with Miss __________ after Mr. Bryant? 25 A. Yes.

33 1 Q. And what is your conclusion? 2 A. Well, given the lack of Mr. X anywhere on the nine 3 samples, or actually 11, between what we tested and C.B.I. 4 tested on the Nike T-shirt, and their testing of penile 5 shaft swab Mr. Bryant, and our testing of the penile shaft 6 swab from Mr. Bryant, that it is likely that there was not 7 any sperm from Mr. X inside Miss _______ at the time 8 Mr. Bryant had his encounter with her, and that sexual 9 contact, taking everything in totality, likely occurred 10 after Miss ___________ and Mr. Bryant were together. 11 Q. Is the presence of Mr. X in the purple panties a 12 factor in your conclusion in this regard? 13 A. Yes. 14 Q. Why? 15 A. Well, again, Mr. X is present in more than one 16 cutting from the purple panties. In one particular cutting, 17 I think it's 14-A2, he is the predominant donor. It's 18 indisputable profile obtained with very good peak heights, 19 and it's just very unlikely that transfer from the yellow 20 panties are serving as the source of transfer to all of 21 these different areas, in the purple panties and on her body 22 swabs. 23 Q. Is it a factor in your conclusions that 24 Miss __________ told Detective Winters that the panties were 25 clean when she put them on?

34 1 A. Yes. 2 Q. And why is that important? 3 A. Well, if they are clean -- if they were clean on 4 the morning that she put them on, then this presence of 5 Mr. X in the purple panties could not have been due to 6 drainage from her if in fact she had had sexual contact with 7 Mr. X earlier that day. That's not -- any of that wouldn't 8 be a factor. 9 The other thing is that, not in regard to the 10 purple panties but the thigh swabs, I believe she was -- her 11 statement was she showered on the morning of the 30th. So 12 the deposit on her thighs would have to be made sometime 13 that day, during that -- during June 30th. Or I guess 14 between the morning of June 30th and her sexual assault 15 examination. 16 MR. HADDON: I have nothing further, Your Honor. 17 THE COURT: Cross. 18 MR. HURLBERT: Judge, considering that we went 19 into some areas that was beyond -- the People feel was 20 beyond the scope of their offer of proof, can we take a 21 ten-minute break so I can talk to Dr. Lee about some of this 22 new stuff that came out? 23 THE COURT: Sure. 24 MR. HURLBERT: Thank you, Judge. 25 THE COURT: We'll take a recess. You may step

35 1 down. 2 (A recess was then taken.) 3 THE COURT: Mr. Hurlbert. 4 MR. HURLBERT: Thank you, Judge. 5 CROSS-EXAMINATION 6 BY MR. HURLBERT: 7 Q. Good morning. 8 A. Good morning. 9 Q. It's Dr. Johnson, right? 10 A. Yes. 11 Q. I just want to make sure I get it right. 12 And looking at your CV, it looks like you've been 13 doing this for quite a while, haven't you? 14 A. Since the end of 1991. 15 Q. '91. So you've done a bunch of DNA testing, all 16 that, right? 17 A. Yes. 18 Q. And you even worked for a crime lab, right, 19 Houston? 20 A. Harris County. 21 Q. Harris County. Now let's talk about this case. 22 You said that a whole bunch of people did the testing on 23 this, right? 24 A. The lab staff, yes. 25 Q. Lab staff.

36 1 A. And myself. 2 Q. In the report on here, it says that you reviewed, 3 you reviewed the testing, right? 4 A. Yes. And I reviewed data and authored part of the 5 report, as a matter of fact. 6 Q. You and it looks like a Betty Lynn and -- 7 A. And Mark Taylor. 8 Q. And Mark Taylor. 9 Now, on the notes it mentioned a person named 10 J.E.B. Do you know who J.E.B. is? 11 A. Jessica Bickham. 12 Q. Could I get the spelling of that, last name? 13 A. Last name? I think it's B-i-c-k-h-a-m. 14 Q. And who is she?

15 A. She's a technician. She does not do the actual 16 case sample analysis, but she'll do some of the presumptive 17 tests stuff, like the P30s and that sort of thing. 18 Q. And there was also a C.M.C. Who's that? C.M.C? 19 A. C.M.C. That's Carley Cardenas. 20 Q. And could I get his last name spelled, too? 21 A. C-a-r-d-e-n-a-s. 22 Q. And is he another lab tech? 23 A. Yes. 24 Q. And what sort of stuff does he do? 25 A. The same type of thing that Jessica does. They'll

37 1 log in evidence, do the same type of thing, the same 2 presumptive tests. Sometimes make the slides, or process 3 the slides once they're made. But they don't actually do 4 the actual extractions. 5 Q. So on the -- so on the -- and do they work for 6 TAI? 7 A. Yes. 8 Q. And so on the four samples that we're really 9 talking about here, the -- although I guess there's four -- 10 there's three crotch samples of the purple G-string 11 underwear, the cervical swabs, the vaginal swabs, the anal 12 swabs, those -- those that we're talking about here, who did 13 the extractions on those, do you know? 14 A. I would have to look through the data sheets and 15 see. 16 Q. Was it you? 17 A. No, I didn't do the extractions. I examined the 18 purple panties. Betty Lynn took the actual swabs, the body 19 swabs, and I think she did the extractions. I would have to 20 look at the actual data sheets to see who did every piece of 21 the analysis. 22 Q. How about -- now, you said that you have these lab 23 techs to do the P30 testing. Most likely they did the P30 24 testing on this -- on the evidence that we're talking about? 25 A. I think so. Again, I would have to look at the

38 1 data sheets to see. 2 Q. Just -- it wasn't you, though, right? 3 A. It wasn't me. 4 Q. And the amylase is probably the same thing? 5 A. Same thing. 6 Q. You didn't do the amylase? 7 A. That's correct. 8 Q. Now, how about the PCR, which that's the real DNA 9 testing, right? 10 A. Well, it's all of the DNA testing. That's the 11 amplification stuff. 12 Q. The amplification stuff. Do you know who did 13 that? Do you know on this part? 14 A. There were many amplification runs, so it would be 15 on each data sheet. 16 Q. Did you do any of these? 17 A. No. I did the evidence examination, I looked at 18 the slides, recall the sperm or the nonnucleated epithelial 19 cells. I looked at the data once it came off. I did 20 actually observe some of the acid phosphatase testing, and 21 then the final data, reviewed that. I worked on the report 22 for days -- days and days -- reviewing all -- reviewing the 23 data, going back and looking at the slides, and that sort of 24 thing. 25 Q. And doing the report for days and days was

39 1 probably the least -- least fun of the whole process, huh? 2 A. It was grueling. 3 Q. You know, I had a whole list of other things but 4 you answered all of those questions, so let's move on a 5 little bit to -- now let's move on to the actual testing. 6 A. Okay. 7 Q. And let's start first of all with the purple 8 G-string underwear. 9 A. Okay. 10 Q. Okay. And it looks like you did one test of, for 11 lack of a better word, the major portion of the underwear, 12 and then three tests on the crotch area, right? Do I have 13 that right? 14 A. Let's see. We did one -- one cutting from the 15 bulk park, and then four -- four cuttings from the excised 16 part, the crotch excision that came -- that came to us 17 packaged separately from C.B.I. And those were the 14 -- 18 14-A1, A2, A3, and A4. 19 Q. And on those tests, in your report you have that 20 there is -- sperm was found, correct? 21 A. Yes. 22 Q. And it has a little E there. And when you go back 23 to the key, it says E is fewer than one cell per HPF. What 24 does HPF mean? 25 A. That's high-powered field. That's 400

40 1 magnification. 2 Q. So that's under the microscope? 3 A. Right. 4 Q. So basically when there is an E, that's one sperm 5 cell? 6 A. No. That's -- if you scan the whole slide and you 7 could find one or you could find 50. If you -- and we scan 8 the whole slide, meaning we view the whole slide, and there 9 was -- the spot made on the slide. And so it varies. It 10 could be two, three. Our computer on the data sheet will 11 not allow us to put an extra character in, so it has to come 12 up each, it won't let us say two each, it just lets us say 13 each. But we record the actual number, when we can, on the 14 slide itself. 15 Q. So do you know how many were on the, let's say, 16 2063.14-A1, the portion -- the portion string purple 17 panties? It says E? 18 A. That one said, let's see. It had an "each" on the 19 slide. That -- there were very few. So -- 20 Q. What does that mean? That mean -- and I guess I'm 21 trying to -- what does very few mean? Unfortunately I'm not 22 as skilled as you are, so I'm kind of trying to get some of 23 the -- what you mean by very few? 24 A. Again, we didn't actually score a number on that, 25 but I would say less than five on the portion that we

41 1 made -- on the portion of the cell pallet that we took for 2 the slide, and that was -- again, you have to bear in mind 3 that there's only a portion taken to put on the slide, and 4 it's usually two microliters out of 50, and it was in that 5 case, two out of 50. 6 Q. And you said you found probably right around five? 7 A. No. I said it was probably less than five in that 8 case, in each. 9 Q. And how about on 14-A2, the portion of the crotch 10 purple panties? 11 A. On the slide, there was two observed on the slide. 12 Q. How about the next one, how about 14-A3? 13 A. Again, that was scored with an each. So I'm going 14 to say less than five. 15 Q. Less than five. And how about also the next one, 16 14-A4? 17 A. That was scored with just an each, so less than -- 18 safe to say less than five. 19 Q. And these are five sperm -- 20 A. Right. 21 Q. And we think of sperm with little head and little 22 tail, right? 23 A. Well, tails are usually gone by then, but little 24 head at least. 25 Q. So on most of these it was probably just a head on

42 1 it, right? 2 A. (Nods head.) 3 Q. And did you take any photos of this? 4 A. Of the sperm? 5 Q. Yeah. 6 A. No. Because they're on the slide, and we save the 7 slide. 8 Q. Now, you talked about the yellow underwear, and 9 it's kind of all in the same -- on the same page. It says 10 that you -- that's two plus, it looks like the sperm is. 11 That is -- make sure the record's clear. 2063.14-B1, the 12 front portion crotch area of the yellow underwear. It has 13 two plus, and the key says two to ten cells per high-powered 14 field, right? 15 A. Right. 16 Q. So it's quite a bit more than the two or five or 17 less than five that you get when you get an E, right? 18 A. Yes. It's quite a bit more. 19 Q. And then three plus is on the right brownish stain 20 crotch area of the yellow underpants, and that is ten to 50 21 cells? 22 A. Right. 23 Q. So it's even more than that, correct? 24 A. Right. 25 Q. And then if you go up to the T-shirt, which is

43 1 kind of near the top, 206.308D, the portion, OT positive, 2 smear inside front shirt, it's one plus, which is 100 cells 3 per slide to one cell per sell, so it's -- 4 A. That's one per how-powered field. 5 Q. Yeah. One per high profile, but 100 cells per 6 cell is what it sounds like? 7 A. Well, usually if we see one per high-powered field 8 we call it a one plus. So that's less than -- 9 Q. Less than the others, but more than the E 10 portions? 11 A. Right. 12 Q. Let's move on to the cervical swabs on the next 13 page of your report. Page 11 of 17. It says -- and this 14 is, for the record, 2063.16-D -- two OT positive, cervical 15 swabs, Miss___________. And on the presumptive test on that 16 you got AP inconclusive, right? 17 A. That's right. 18 Q. Now, what does AP inconclusive mean? 19 A. Those particular -- that particular sample and 20 some of these others I actually saw the tests run on those, 21 turned a little bit of orange, and proper color is pink for 22 acid phosphatase. So it wasn't colorless, which would be 23 negative, it was kind of -- it was the wrong -- or not the 24 typical color. So we called it inconclusive. 25 Q. And are you going to get a better reading if

44 1 there's more sperm there? 2 A. Well, that -- 3 Q. Or is it semen? 4 A. Semen. 5 Q. Semen. Are you going to get a better reading if 6 there's more semen there? 7 A. Yes. And vaginal secretions can cause a positive 8 reaction. It's typically a much slower reaction. And that 9 may be, you know, what was causing this. It was just not 10 the typical pink color change. So we called it 11 inconclusive. 12 Q. And at P30 you got negative on that, right? 13 A. Right. 14 Q. And you also on this for sperm, it says E again. 15 Is that going to be -- do you know how many that is? 16 A. Two each. 17 Q. Two? 18 A. On our portion of this slide. Portion taken from 19 this slide. 20 Q. And move down to the vaginal opening swabs, 21 2063.16-K? 22 A. Right. 23 Q. And looks like you got positive for AP and 24 positive for P30, right? 25 A. That's right.

45 1 Q. And how many sperm did you have there? You have 2 an E also? 3 A. Seven each. 4 Q. Seven. And the vaginal swabs, let's go down to 5 the next one, 2063.16-M, the vaginal swabs, again you got an 6 AP inconclusive it looks like on that, right? 7 A. That's right. 8 Q. Was that an orange color -- or can it change 9 another color, too? 10 A. I've never seen it another color. 11 Q. Pretty much orange and pink, or nothing, I guess? 12 A. Right. 13 Q. And you got negative also for P30, right? 14 A. Negative for P30. 15 Q. And how many sperm did you find there? You also 16 had an E? 17 A. Three on that slide. 18 Q. Three on that slide. And 2063.16-N, which is the 19 anal swabs? 20 A. Uh-huh. 21 Q. It says you got weak AP? 22 A. Right. 23 Q. Now, what does weak AP mean? 24 A. A slower -- slower reaction. 25 Q. It still turns pink, it just takes a little longer

46 1 to do? 2 A. Right. 3 Q. And how many sperm did you find on that? 4 A. Five on the slide. 5 Q. Now, by finding sperm in there, that doesn't 6 necessarily mean anal sex, does it? 7 A. No. 8 Q. That could potentially mean drainage from the 9 vagina as well? 10 A. Yes, it could. 11 Q. Now, you said that you have looked at the reports 12 from the SANE nurses, right? 13 A. Yes. 14 Q. Did you actually talk to the SANE nurses at all? 15 A. No. 16 Q. Do you know how they collected this -- did the 17 collection of the, say the cervical swabs or the vaginal 18 swabs? 19 A. I, in discussions with the attorneys, were told 20 that there -- they stated that they were internal swabs. 21 Q. Internal swabs. Well, and to do an internal swab, 22 I mean you can't -- do you know anything about this at all, 23 before I ask you these questions, do you know anything about 24 the collection of a rape kit? 25 A. I have a general understanding of how these swabs

47 1 are collected, yes. 2 Q. I mean, you can't really -- I don't want to be 3 crude here, but the vagina is not really like a tube, right? 4 There is no -- there is a potential chance that you can, as 5 the swab is going in, touch the sides of the vagina, touch 6 the openings of the vagina as you're going in, isn't that 7 true? 8 A. Well, they're supposed to use a speculum and take 9 a truly internal swab that would not be touching the vaginal 10 opening as it's inserted. 11 Q. That's what they're supposed to do. Do you know 12 if that's what happened here? 13 A. My understanding is their statement that that was 14 the way it was collected. 15 Q. Now, you said that, if I'm right, you said that 16 there are -- that sperm can sometimes last inside the vagina 17 for five days, the studies you've seen can last for up to 18 five days? 19 A. Yes. 20 Q. And it can be even longer in the cervix, can't it? 21 A. I haven't seen anything to that effect. 22 Q. So you haven't read the words by Sharp, I think 23 it's N. Sharp, who said it can go up to 17 days even, in the 24 cervix? 25 A. I'm not familiar with that.

48 1 Q. But anyway, even in the five days, just the sperm 2 inside the vagina doesn't tell you when sex is, does it? 3 A. No. The numbers typically decrease over time, in 4 a live individual. 5 Q. And that's another thing is the numbers decrease 6 over time, right? 7 A. Due to drainage and dilution, yes. 8 Q. So if you have a woman who has sex hours before a 9 rape exam, say she has consensual sex hours before a rape 10 exam, she doesn't change her underwear, she doesn't shower, 11 you are going to find generally a lot of sperm in there, 12 aren't you? 13 A. I'm sorry, I didn't catch the first part of your 14 question. Can you say that again. 15 Q. All right. A woman who has sex -- 16 A. Okay. 17 Q. -- just before hours, let's say three, four hours, 18 before a rape exam, she doesn't shower, she doesn't -- she 19 doesn't change her underwear, you are going to find -- and 20 it's unprotected sex, so I got that right -- you are going 21 to find a lot of sperm in there, aren't you? 22 A. Not necessarily. 23 Q. Not necessarily. Well, you certainly are going to 24 have a positive for P30, right? 25 A. No. It depends on how the sex occurred, if there

49 1 was ejaculation internally or not. I mean, we've seen 2 plenty of instances in case work where there was penetration 3 without ejaculation, we don't find any or many sperm. We 4 don't find P30. It depends on how the sex occurs. I mean, 5 it can be very -- 6 Q. But if there is ejaculation, then generally you're 7 going to find a lot of sperm? 8 A. If it's internal, yes. If it's a full ejaculate 9 internal, yes. If it's partial, no. If it's just 10 penetration, few to none. 11 Q. Now, what exactly is P30? 12 A. P30 is a protein that is found, is a prostate -- 13 thought to be a prostate specific protein produced by the 14 prostate gland produced in high levels in the seminal fluid. 15 Q. Are these only this males, then? 16 A. There have been a few studies using a very 17 sensitive radioimmunassay test in which that has been found 18 in some fluids of urine of men that have prostate cancer or 19 breast milk from some women, even, but it's a different type 20 of test they are employing than what we are using here. 21 Q. So if, I mean, for your testing it is basically a 22 male -- it comes from the male, P30, for purposes of your 23 testing? 24 A. For the purposes, yes, here. 25 Q. And what is AP?

50 1 A. Acid phosphatase. 2 Q. And what's that? 3 A. It's an enzyme found in -- much higher levels in 4 seminal fluid. It can be -- it is present in lower levels 5 in vaginal fluid. The tests that are used for forensics, 6 generally the vaginal fluids will cause a much slower 7 reaction, so there's a certain time at which you cut off, 8 you know, calling your test result so that you don't confuse 9 vaginal fluids as being a positive. 10 Q. So generally also with your testing, if this is a 11 male, AP is something that comes from the male? 12 A. No, not with AP. We certainly recognize the fact 13 that there can be some AP activity, weak activity, from 14 vaginal fluids. 15 Q. Now, you said that it's your theory that the -- 16 make sure I got the right wording on this. It's your theory 17 that based upon the evidence that the victim had sexual 18 relations with another man after the rape, right? 19 A. Um, I never said that she was raped, and I said it 20 was sexual contact after her contact with Mr. Bryant. 21 Q. Sexual -- sexual relations with male number one 22 after the encounter with Mr. Bryant? 23 A. I phrased it as sexual contact, yes. 24 Q. The -- it's your theory? 25 A. It's my opinion.

51 1 Q. It's more of a hypothesis, isn't it, rather than a 2 theory? 3 A. It's an opinion based on examination of this 4 evidence, interpretation of the results. It's based on a 5 lot of scientific findings. So it's my opinion based on the 6 scientific findings. 7 Q. But you didn't -- you didn't do any empirical 8 studies or you didn't take somebody with the same type of 9 underwear, the same body build, and do testing or anything 10 like that, right? This is just based upon your findings? 11 A. And do what with the underwear? 12 Q. Well, did you -- put it this way. Did you do any 13 empirical testing to back your theory? 14 A. We've done some transfer studies on various types 15 of things, some of which includes underwear. But my opinion 16 is not based on one piece of evidence here or one finding 17 here, it's based on a number of findings. 18 Q. And it's a hypothesis, actually? 19 A. Well, it's a hypothesis that is my scientific 20 opinion based on these findings, and my interpretation of 21 them. 22 Q. I understand the terminology, so that's all -- 23 A. Okay. Whatever. 24 Q. Now, in your hypothesis you said that the -- the 25 transfer really couldn't have happened, essentially,

52 1 correct? Or highly unlikely? Is that a better way to put 2 it? 3 A. No, I said it couldn't explain the presence of 4 Mr. X's sperm everywhere in the absence of it on other 5 strategic items of evidence. Certainly it could explain a 6 particular item of evidence, the findings on a particular 7 item of evidence taken in isolation, as I mentioned earlier. 8 REDACTED 9 /// 10 /// 11 /// 12 Q. Let me ask you this. Did you -- did you ever see 13 how the victim in this case wore her underwear? 14 A. No. 15 Q. Whether it was tight on her or loose on her? 16 A. No. 17 Q. Did you ever see that? 18 Do you know whether the -- whether the victim was 19 on her menstrual cycle? 20 A. I believe she was not menstruating. 21 Q. But you don't know how far away from her menstrual 22 cycle she was? 23 A. I think it was June 21st was her last cycle. 24 Q. Now, on the yellow underwear, in your report, page 25 4 of 17, it's item number 2063.14-B, about halfway down. It

53 1 says, "In addition to the semen, there are also dilute blood 2 stains visible on this material." 3 Let's first of all talk about the blood on the 4 crotch portion of the yellow panties. Was the crotch 5 portion of the yellow underwear soaked in blood, or were 6 there spots of blood? 7 A. It was very noticeably stained with blood. 8 Q. But it was just spots, right? 9 A. They were large spots. Most of the area was blood 10 stained. 11 Q. And you said it was dilute. Dilute with what? 12 A. I don't know. It looked -- it did not look to be 13 concentrated in any particular area. That's the terminology 14 of observation. There are photos of it. 15 Q. So it could have been sweat, could have been 16 water? 17 A. No, I don't think so. 18 Q. Why don't you think it was sweat? 19 A. It was distributed over too large of an area 20 to have been diluted by sweat. 21 Q. A person, woman can't sweat throughout her whole 22 crotch? 23 A. It's possible. It did appear to be a little 24 heavier in some spots, a little more dilute in other spots. 25 We have very good photos of this, if you would like to see

54 1 them, so. 2 Q. No. That's all right. But this was late June, 3 early July, in Eagle. Do you know what the temperature was 4 during that time? 5 A. I have no idea. 6 Q. So it could have been hot? 7 A. Possibly. 8 Q. I suppose it could have been water that it could 9 have been diluted with, right? 10 A. Could have been. 11 Q. You just don't know, you didn't do any testing? 12 A. I don't know. I know where the areas were blood 13 stained, where the areas were semen stained, and most of 14 those overlapped. There was blood in every area that semen 15 was detected. 16 Q. Now, and you are also making your assumption on 17 the fact that the victim said at one point that she 18 cleaned -- the yellow underwear she had on was clean, right? 19 That's part of your hypothesis? 20 A. No, not really. I mean, I initially I know there 21 was a statement that that pair of underwear was clean. I'm 22 also aware of a statement that the purple pair was clean the 23 day that she put them on, June 30th. 24 Q. You're also -- are you aware of statements where 25 she says, well, I'm not so sure, this could have been just

55 1 left on my floor? 2 A. That's right. 3 REDACTED 4 /// 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 ///

56 1 /// 2 /// 3 /// 4 Q. Were there also -- the blood was diluted. Was 5 there also these stains of this unknown diluted material in 6 areas where there wasn't blood? 7 A. Okay. I'm not sure what you're asking me. 8 Q. You said -- let me do this step by step. 9 You said that there was blood on the yellow 10 underwear in spots, basically? 11 A. It covered most of the crotch area. 12 Q. And it was -- it was diluted with some unknown 13 substance, right? 14 A. Well, some areas appeared to be uniform, so to me 15 it looked like diluted -- the blood was diluted and it 16 spread out more uniform. 17 Q. Spread out to be more uniform? 18 A. Correct. 19 Q. Was there -- was the areas where it didn't have 20 the blood, was the semen diluted from this unknown substance 21 also? 22 A. I couldn't tell you if the semen was diluted or 23 not. I mean, there was detectible acid phosphatase 24 activity, detectible P30 activity, and large numbers of 25 spermatozoa. So, I mean, it's hard to quantify dilution of

57 1 semen in a pair of underwear. 2 Most of the areas on the crotch of the panties 3 contained visible blood staining, and I believe everywhere 4 that there was AP activity there was also blood staining. I 5 believe there was one place where there -- a few places 6 where there was weak OT activity and no AP activity. But 7 wherever there was semen, there was also detectible -- blood 8 detected by ortho-tolidine. I would have to look at the 9 photos just to refresh my recollection. 10 Q. So wherever there was blood, there was semen? 11 A. Wherever there was semen -- 12 Q. Semen, there was blood? 13 A. -- there was blood. 14 Q. Where there was semen, there was blood. 15 A. Right. 16 Q. And -- now you said -- was it you that did the 17 testing as to transfer from clothing to -- transfer of semen 18 from clothing to the body, or was that somebody else? 19 A. There were several sets of experiments, and I was 20 involved in those, yes. 21 Q. Involved in those. How many -- how many pieces of 22 underwear did you test? 23 A. Okay. Well, one set of experiments didn't involve 24 underwear at all. 25 Q. Okay.

58 1 A. Okay. So we're talking about semen-stained 2 underwear and transferred to the body. 3 Q. Yes. 4 A. That involved one experiment, and it was an 5 intentional effort to see if semen could rub off onto a 6 thigh -- 7 Q. Did you publish any of those results? 8 A. No, haven't yet. They're probably all going to go 9 in one paper someday. 10 MR. HURLBERT: I have no further questions at this 11 point. 12 MR. HADDON: Nothing further, Your Honor. 13 THE COURT: Thank you. You may step down. 14 MR. HURLBERT: Judge, may I have a moment? 15 THE COURT: Sure. 16 MR. HURLBERT: Thanks, Judge. I guess I want to 17 know if the defense is done. 18 MRS. MACKEY: Waiting for Mr. Haddon. 19 THE COURT: Next witness? 20 MR. HADDON: Your Honor, that's our last witness. 21 We have Mrs. Agent Woods for rebuttal of Dr. Lee. 22 MR. HURLBERT: Judge, given the cross-examination, 23 the People have no witnesses. 24 THE COURT: All right, then. Does that conclude 25 the evidence with regard to the Rape Shield -- excuse me --

59 1 Rape Shield hearings? 2 MRS. MACKEY: Could we have just a moment, Judge? 3 Judge, one suggestion. We do have Agent Yvonne 4 Woods here, she was prepared to testify. The Court has 5 ordered us to give a summary of her anticipated testimony 6 within five days. I would like to request that in lieu of 7 that we just allow her to testify now and have that 8 testimony serve as the summary of her anticipated trial 9 testimony. 10 MR. HURLBERT: Judge, we would prefer the summary 11 of testimony. 12 THE COURT: Well, that's a different procedure. 13 Certainly more convenient, but somewhat unorthodox. 14 MRS. MACKEY: It would save us a lot of time, 15 Judge. 16 THE COURT: Yeah, I understand that. But I will 17 decline your request and require that the summary be 18 provided. 19 And so the answer to my question is that you have 20 no further evidence with regard to Rape Shield? 21 MRS. MACKEY: That's correct, Judge. 22 THE COURT: And the People? 23 MR. HURLBERT: No further evidence, Judge. 24 THE COURT: All right. And we had previously 25 indicated that there would be supplemental closing argument

60 1 on the Rape Shield submitted in writing to accompany the 2 earlier closing time. How much time would you like to have 3 for that? 4 MS. BAKKE: Five working days. 5 MRS. MACKEY: That's fine. 6 THE COURT: Well, let's see. Does that count 7 today or -- okay. 29th. 8 MS. BAKKE: That would be great. 9 THE COURT: Now, the scheduling order indicated 10 other outstanding issues. We've already discussed some of 11 the anticipated proceedings on the 19th. I think that we 12 need to -- I still need to find some information with regard 13 to the jury questionnaire procedure. The administrator was 14 supposed to talk to the printing company with regard to 15 alternatives of either including it -- it would have to be 16 reset in order to modify the juror response itself, which 17 was something that they indicated would be a considerable 18 cost, so we're exploring another alternative with regard to 19 some enclosure of a questionnaire, but of course that would 20 also require the enclosure of the envelope to have the 21 return. 22 So I'm not any better informed at this point as to 23 that possibility. What I might want to do is to establish a 24 conference call with counsel to discuss what the results 25 are, and then try to identify the trial date.

61 1 MR. HURLBERT: Judge, there's no way that -- I 2 mean, we could set a trial date today and have this stuff 3 going on. It really seems like the issues that you're 4 talking about, though important, are very narrow and can be 5 going on while there is a trial date set. 6 As I said yesterday, if we -- it gives us a couple 7 of weeks to decide on this before jury summonses go out, and 8 so -- and if it does end up being that it's just not going 9 to happen, it's just not going to happen. That's fine. The 10 extra jury summons going out is what I mean, the extra 11 questions. 12 But, Judge, the People would prefer a trial date 13 set today. There are a lot of issues that I don't really 14 want to go into right now, but the People feel that given 15 the fact that we have a plea in this case, and I guess it's 16 just the fact that I've been prosecuting for ten years, when 17 there's a plea out there and there's no trial date set, it 18 really gives me -- sends shivers up and down my spine. And 19 maybe that's a lot of it. 20 But, Judge, we would really like to leave here 21 today with a trial date, and I don't really see why these 22 issues with the jury questionnaire can't be going on while 23 our date is set. 24 THE COURT: Not knowing what your other concerns 25 are, you know as well as I do that this Court regularly and

62 1 consistently has been able to set matters for trial within 2 two to three months based upon not only the criminal but 3 civil case management. I'm not worried about us being able 4 to get a trial date well within the speedy trial time. 5 MR. HURLBERT: And I do understand that, and it is 6 true, Judge, it has been my experience that you have set 7 things within two or three months. Of course it's also been 8 my experience that we almost always have a trial date set at 9 the entry of plea. So -- and -- 10 THE COURT: Well, that gets us back into why we 11 went forward with the entry of plea. 12 MR. HURLBERT: Judge, all I'm asking for is a 13 trial date set today. That's really what I'm asking for. 14 THE COURT: Well, I've already indicated that I'm 15 not going to do that until such time as I have sufficient 16 information to know exactly what sort of time frame we need 17 to accomplish the questionnaire process and determine 18 whether or not I'm going to go forward with the preliminary 19 questionnaire. Then I will know exactly what the time frame 20 is. 21 Now, if -- yesterday it was indicated that both 22 sides had concerns with regard to out-of-state witnesses and 23 scheduling, and I understand that. That, however, just 24 means that you want me to give you a sufficient amount of 25 time to be able to accomplish the execution of those

63 1 out-of-state witness subpoenas. And if you tell me how much 2 time you want, then I will wage that accordingly and set the 3 trial. 4 MR. HURLBERT: What we're looking at, Judge, is an 5 August trial date, and the defense says they need two months 6 to get out-of-state subpoenas. If we are looking at August 7 30th we are talking about setting a trial date by June 30th. 8 THE COURT: I agree with your calendar 9 calculation. That's what we're looking at. I'm hoping that 10 I would have a sufficient amount of information to be able 11 to do that. 12 MR. HURLBERT: And so what sort of time frame are 13 we looking at, Judge? 14 THE COURT: Well, that's what I was getting to in 15 terms of setting a conference call where we can do that. 16 I mean, this case is going to get set when I say 17 it's getting set. I mean, we're not going to have a problem 18 working into the calendar here, and unfortunately everybody 19 knows that the other matters that are set in this courtroom 20 and the other courtroom will be affected by the dates. 21 But it's not likely to have to worry about that. 22 It gets set to commence the last week in August, the first 23 week in September. Why don't you tell me, I mean, you keep 24 saying an August trial date. You've been saying that for a 25 long time. Is there something important enough that I need

64 1 to know about it that distinguishes an August trial date 2 from a September trial date, other than your desire. 3 Because we have speedy trial November 11th, and I'm not 4 talking about an October trial date. I'm just trying to 5 narrow in. 6 You know, you've said it before, you've said it 7 today, you want an August trial date. That's pretty unusual 8 for anybody to make a specific request to the Court as to 9 when we want the trial date. 10 MR. HURLBERT: And I understand that. 11 THE COURT: And I want to take into consideration 12 any important factors that you have that are relevant to the 13 Court, as well as relevant to you or Mr. Bryant's attorneys. 14 MR. HURLBERT: Well, Judge, I mean, first of all 15 you did ask at one point, so -- 16 THE COURT: Yeah, but -- 17 MR. HURLBERT: So I don't want to be thinking that 18 I'm trying to force -- 19 THE COURT: I asked yesterday and I took what you 20 had to say to heart. Today you're much more emphatic about 21 you want me to set it today, and you want an August trial 22 date, and I'm just trying to find out what that's based 23 upon, other than just some desire. 24 MR. HURLBERT: Here are two of the reasons, Judge. 25 Unfortunately, unlike the defense, we have a very limited,

65 1 limited budget. And the longer this drags on the harder it 2 is to -- to make those -- make that budget meet. The budget 3 is something that especially with what we are dealing with 4 is taxpayer money, so I don't want to be overspending 5 taxpayer money. 6 The second thing is we would like a definite trial 7 date as soon as possible, because Mr. Crittenden and myself 8 and Ms. Bakke and Ms. Easter are going to basically have to 9 clear our plates 100 percent, and so we are looking at what 10 we need to get -- we are looking at how long we need to do 11 it and when we need to start doing it. And so that's why we 12 are asking for a trial date right away. 13 I guess as soon as possible. I apologize for 14 right away. 15 THE COURT: I have those same stress factors 16 involved, budget and personal, professional calendar. I'm 17 not going to address that in a comparative fashion to anyone 18 else because I believe that everyone is -- and including 19 Mr. Bryant, his attorneys, are experiencing the same. 20 MR. CLUNE: Judge, can I address the Court on that 21 issue? 22 THE COURT: Sure, Mr. Clune. 23 MR. CLUNE: Judge, and I don't know to the extent 24 that the prosecution is aware of this, but in regards to 25 your question about a need for an August trial date, I can

66 1 tell the Court that from speaking with the victim in this 2 case, when this case is over, the things that she wants most 3 is to be able to enroll in school again. When we had the 4 proposed trial date of August 16th, that seemed like a 5 realistic possibility for this semester. We're talking now 6 about August 30th. I don't know if even August 30th keeps 7 that open as a realistic possibility. 8 But not to trump anybody else's rights or the 9 procedure that's required through this court, but that was 10 one of the considerations that the victim was concerned 11 about in regards to the scheduling of a trial date. 12 THE COURT: I know, as I've stated just a few 13 minutes ago, that this case has put a significant amount of 14 change if not stress on everyone involved, personally and 15 professionally, and with their lives. I have up to a week 16 ago endeavored to maintain my full case load and all the 17 matters that were pending on it, which is around 240 cases. 18 I know that Mr. Hurlbert has had homicide 19 prosecutions and I had a murder trial in Clear Creek in 20 April, and I know that the defense team has been working 21 extensively on this, and I assume that it's not the only 22 case. 23 I know that we've had months -- well, days and 24 days of hearings over months and months, and that the burden 25 is now on the Court with regard to several of those rulings

67 1 on those hearings. 2 I also know that, as I calculated yesterday and 3 did not go into when we were discussing the trial, that 4 since the victim's initial request for setting the matter 5 for trial, the People have filed 41 motions, responses, 6 replies, or briefs. The defense has filed 46 motions, 7 responses, replies, or briefs. The other interested 8 parties, including the media, have filed 11. 9 I have found myself in a situation, as I 10 indicated, one, where I cannot any longer handle the 11 remainder of any of the rest of my docket and have sought 12 assistance for that. 13 Two, while I have been attempting to concentrate 14 on the substantial outstanding issues, one of which we just 15 completed the evidentiary portion today, I have had to 16 address a number of matters that have been raised in those 17 motions, responses, replies, and briefs. One of those 18 examples, of course, was the show cause. And I'm not 19 pointing fingers at anybody, but I had to spend a 20 substantial amount of time on that and other issues. 21 Now I'm indicating that for a variety of reasons, 22 including the determination with regard to the 23 questionnaire, I'm not prepared to specifically set a trial 24 date, even though I've given you what any reasonable person 25 would understand to be very limited parameters within which

68 1 I'm focusing on possible trial dates. 2 I don't see that me identifying it today is any 3 less productive than identifying it within the next week to 4 ten days. And because of those things that I've just said, 5 without repeating them ad nauseam, I don't intend to set a 6 specific date today. 7 I know that everyone has schedules that they need 8 to meet, and I know that I have those responsibilities that 9 I've already identified. But I don't see that setting it 10 today will do that. 11 And I also have no desire to feed the beast that's 12 outside the door that insists on knowing a trial date at 13 this point in time. I will be happy to set a time when we 14 can have a conference call, and I can advise you of the 15 specifics with regard to the juror questionnaire, and we can 16 discuss the time frames and other issues and identify a 17 trial date. 18 I had asked previously, and I indicated at that 19 time and I will say again, that I don't want to be 20 presumptive enough to believe that this case is totally 21 different than any other case, and we are proceeding outside 22 the presence of the public. 23 Are there or have there been any discussions with 24 regard to disposition of this case? Because when I set the 25 trial date and we engage in that process, there's a

69 1 substantial cost that the state incurs also, and I always 2 ask that question. 3 MR. HURLBERT: Judge, there has been brief 4 discussions, and it appears that the sides are very far 5 apart in this case, and I don't see a plea at this time. 6 THE COURT: Well, the key phrase was "at this 7 time." 8 MR. HURLBERT: Or the foreseeable future, I guess, 9 Judge. 10 THE COURT: And you know my policy. If we set 11 this for trial, it's over as far as plea negotiations, and 12 I'm not suggesting that you need to enter into any further, 13 but I am indicating that if you have any consideration of 14 it, that I can give you an appropriate amount of time before 15 we identify the trial date. 16 MS. BAKKE: Judge, I think that the rulings that 17 are pending certainly change the status of the case for 18 either side. 19 THE COURT: I hear that all the time. I've even 20 had an argument that it's a chilling effect, and I don't buy 21 it. I understand what you're saying. I know you're very 22 experienced, and I'm only in this entering my 30th year, but 23 my policies are ones which I believe to be appropriate. 24 You know, we are where we are in this case, and 25 I'll take some responsibility for that, and I'm not going to

70 1 relieve any of you for some of that also. 2 MS. BAKKE: Judge, my only point was that if in 3 fact you were to rule that all of the Rape Shield evidence 4 were going to come in in this case, I'm thinking the 5 prosecution is going to sit down and reevaluate the quality 6 of its case and its chances of a successful prosecution. 7 I wasn't trying to lay any blame on the Court, I'm 8 just saying that ruling, the ruling on the mental health 9 issues and the suppression of the defendant's statements, 10 make a significant change in the case, meaning the parties 11 may have more or less willingness to negotiate based on 12 that. 13 THE COURT: That's true. And if we set it for 14 trial, it's over. The cutoff is set, so. I don't want to 15 get into an analysis of the importance of that evidence, 16 although I'm no different than you, I know the impact and 17 potential consequences with regard to suppression versus 18 that of the rulings on Rape Shield, and I have not factored 19 in those effects. 20 I think when you analyze the case you have to 21 consider various alternatives, and when you analyze the case 22 you have to consider the possible outcome of trial, and that 23 is really in light of all of the evidence that you are aware 24 of, which is even greater than what I am aware of, what you 25 should look to and rely upon in terms of what your

71 1 evaluation of what your alternatives are. 2 In light of Mr. Hurlbert's request and in light of 3 the timing and what I just said with having to deal with -- 4 I don't mean this lightly, I mean it absolutely 5 realistically, every time motions are filed I have to figure 6 out whether to give them the priority or whether to continue 7 working on those other issues, and to the detriment of the 8 process of getting decisions out on the major issues, I've 9 had to address other matters recently. 10 There's one of me with a half-time legal research 11 attorney. And I know it sounds like whining, I'm just 12 saying that's just the way it is, and yesterday I talked 13 about that a little bit, we had five attorneys here on the 14 prosecution's side, we've got three up front today on the 15 defense, two in the back. You guys can produce paper faster 16 than I can read it. Or even paperless. So I'm doing the 17 best I can. And when I have that balanced against 18 Mr. Hurlbert's legitimate request for knowing the trial date 19 as soon as possible, I just have to do what I can. 20 So in light of all of that, how important is it 21 that I give you a trial date today? Is it still your number 22 one priority, Mr. Hurlbert? 23 MR. HURLBERT: It is, Judge. 24 THE COURT: Does the defense have any position on 25 that, other than previously stated?

72 1 MR. HADDON: We don't. We'll be ready to go 2 whenever the Court thinks that it's time to go, and I think 3 it's really up to Your Honor in terms of making that 4 determination. So we've indicated we'll be ready to go 5 whenever. 6 MR. HURLBERT: Judge? 7 THE COURT: I'm still here. 8 MR. HURLBERT: Judge, actually after talking with 9 Mr. Clune, if we could get a trial setting date within the 10 next week, then I suppose I'll withdraw my request for a 11 trial date today. 12 THE COURT: How about June 30th? I just hate to 13 set it for Friday the 25th and then not have enough 14 information to go forward. So the 30th kind of fits with 15 everybody's time frames. 16 MRS. MACKEY: That's fine with the defense, Judge. 17 THE COURT: Is our traditional 12 o'clock as good 18 as anything? 19 MR. HADDON: That's fine with us. 20 THE COURT: Wednesday. 21 MR. HURLBERT: That's fine, Judge. Wednesday is 22 fine. 23 THE COURT: Okay. Thank you. 24 MRS. MACKEY: Would you like me to set that up, 25 Judge?

73 1 THE COURT: Please. 2 Are there any other issues that we need to address 3 at this time? 4 MR. HADDON: We have none. 5 MR. HURLBERT: None from the People. 6 THE COURT: And let me advise you that I -- I 7 believe that the issue of a trial setting is one that is 8 primarily of importance to those of us who are participating 9 in the process. I think it would be inappropriate for any 10 of you to communicate to the media in any way any expected 11 or anticipated date at this time. 12 Because I respect the importance to you, and 13 ultimately it certainly is a matter of public information. 14 But in the meantime I think it would be nothing but 15 speculation, and inappropriate speculation, as to what might 16 actually be the setting. 17 MR. HURLBERT: That's fine, Judge. Just for 18 clarification, does that include the fact that there is a 19 trial setting conference on June 30th? If it does, it does. 20 I'm just -- 21 THE COURT: I know you want to say something to 22 them, you have to say something when you go out there, if 23 you want to. There's a status conference June 30th. It's 24 not a trial setting conference for public information 25 purposes.

74 1 MR. HURLBERT: Thank you, Judge. Thanks for the 2 clarification. 3 (This matter concluded at 11:10 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 REPORTER'S CERTIFICATE 6 I hereby certify that the above and foregoing 7 redacted transcript, containing 74 pages, is a true and 8 complete transcription of my stenotype notes taken in my 9 capacity as Official Reporter of District Court, Eagle 10 County, Colorado, at the time and place above set forth. 11 Any copies of the within transcript not containing 12 an original certification page or not obtained from the 13 undersigned reporter or through RealLegal are not certified 14 for accuracy, including any transcripts posted on any 15 internet site, as they are made outside of this reporter's 16 knowledge and control and subject to manipulation. 17 Dated at Adams County, Colorado, this 2nd day of 18 August 2004. 19 20 21 22 ______________________________ Michelle L. Goodbee, RMR CRR 23 24 25

Hmmm.. let me try this again:

The following is the redacted transcript released Monday from the closed June 22 hearing in the Kobe Bryant case. It contains testimony from a defense DNA expert. The transcript does not contain rebuttal evidence from prosecutors.

District Court |
County of Eagle |
State of Colorado |
885 Chambers Avenue |
P.O. Box 597 |
Eagle, Colorado 81631 |
|
Telephone Number:(970)328-6373 |
| ** COURT USE ONLY **
___________________________________|________________________
|
Plaintiff: THE PEOPLE OF THE | Case No. 2003 CR 204
STATE OF COLORADO |
|
Defendant: KOBE BEAN BRYANT |
___________________________________|________________________

REPORTER'S REDACTED TRANSCRIPT OF PROCEEDINGS
____________________________________________________________
This matter came on for Hearing on Motions on
Tuesday, June 22, 2004, before the Honorable W. Terry
Ruckriegle, District Court Judge.
____________________________________________________________

Appearances:

Office of the District Attorney
Fifth Judicial District
Mark D. Hurlbert, Attorney No. 24606
Greg Crittenden, Attorney No. 26001
Ingrid S. Bakke, Attorney No. 19680
Dana J. Easter, Attorney No. 14986
955 Chambers Avenue
P.O. Box 295
Eagle, Colorado 81631
Telephone: (970)328-6947; Facsimile: (970)328-1016
HADDON, MORGAN, MUELLER, JORDAN, MACKEY & FOREMAN, P.C.
Harold A. Haddon, Attorney No. 1596
Pamela Robillard Mackey, Attorney No. 15136
Kevin M. McGreevy, Attorney No. 27407
150 East 10th Avenue
Denver, Colorado 80203
Telephone: (303)831-7364; Facsimile: (303)832-2628

IN CAMERA PROEEDINGS

HECKMAN & O'CONNOR, P.C.
Terrence P. O'Connor, Attorney No. 9574
P.O. Box 726
Edwards, Colorado 81632
Telephone: (970)926-5991; Facsimile: (970)926-5995
Wheeler & Clune, LLC.
John C. Clune, Attorney No. 27684
Alpine Bank Building, Suite 101
P.O. Box 8612
Avon, Colorado 81620
Phone: (970)845-8680 Facsimile: (970)845-8604
E-mail: jclune@wheelerandclune.com
____________________________________________________________

INDEX

Witness for Defense re: 18-3-407:

ELIZABETH JOHNSON
Direct Examination by Mr. Haddon 5
Cross-Examination by Mr. Hurlbert 35

IN CAMERA PROEEDINGS

3
1 MORNING SESSION, TUESDAY, JUNE 22, 2004
2 (Court convened this matter at 8:41 a.m., and the
3 following proceedings were held in camera with counsel and
4 Mr. Bryant present.)
5 THE COURT: Good morning, ladies and gentlemen.
6 The Court will call 2003 CR 204, People v. Kobe Bryant. We
7 are proceeding this morning on motions hearing relating to
8 continuation and completion of the Rape Shield evidence.
9 Are the People ready to proceed?
10 MR. HURLBERT: Judge, Mark Hurlbert, Dana Easter,
11 Greg Crittenden and Ingrid Bakke on behalf of the People.
12 Also present is Mr. John Clune, the victim's attorney and
13 her representative.
14 Judge, also sitting at the People's side is
15 Dr. Henry Lee, who's an advisory witness, and actually an
16 expert that's going to listen to Dr. Johnson's testimony.
17 And also on our side is Dr. Michael Baden. Same thing,
18 Judge, advisory witness.
19 THE COURT: Thank you.
20 MRS. MACKEY: Good morning, Your Honor. Terry
21 O'Connor, Hal Haddon and Pamela Mackey on behalf of Kobe
22 Bryant. He appears with us, Judge. Also in the courtroom
23 for the defense are three lawyers, Mark Johnson, Kevin
24 McGreevy, and Anne Lundberg. And we have three experts also
25 present, Dr. Libby Johnson, Dr. Peter DuFour, and Yvonne

4
1 Woods of the C.B.I.
2 THE COURT: Thank you.
3 We are to proceed, then, I believe -- beg your
4 pardon -- going to start with Dr. Johnson.
5 Before we do, the clerk had tendered a couple of
6 orders. One relates to the stipulation on telephone
7 records, and when I was reviewing my materials, I found that
8 it had been granted, but apparently the order not actually
9 signed on May 10th based upon the stipulation, and so I will
10 go ahead and sign that.
11 The other is the order establishing deadline for
12 the evidentiary orders regarding text messages, and the
13 Court had granted until June 28th after yesterday's
14 discussion on that, and I will go ahead and sign that.
15 There's no objection to either of those.
16 All right, then. Mr. Haddon.
17 MR. HADDON: Yes, Your Honor. We call
18 Dr. Elizabeth Johnson.
19 THE COURT: If you would please raise your right
20 hand.
21 ELIZABETH JOHNSON,
22 having been first duly sworn, was examined and testified as
23 follows:
24 THE WITNESS: Yes.
25 THE COURT: Please be seated at the witness stand,

5
1 and speak up so everyone can hear you. The microphones are
2 on, as you know, you've testified before, so make sure that
3 you speak up loudly enough for everyone to hear you.
4 DIRECT EXAMINATION
5 BY MR. HADDON:
6 Q. Dr. Johnson, could you again tell us your name and
7 your business address?
8 A. Yes. It's Elizabeth Johnson. 1534 North Moorpark
9 Road, number 364, in Thousand Oaks, California.
10 Q. Have you testified previously in this case?
11 A. Yes, I have.
12 Q. And do you remember the dates that you testified?
13 A. Um, early March. I don't remember the date.
14 Q. And were you qualified on March 2nd of 2004 as an
15 expert in certain fields?
16 A. Yes.
17 Q. Do you recall what the fields were that you were
18 qualified as an expert in?
19 A. I believe it was evidence examination -- forensic
20 evidence examination, body fluid identification, and
21 forensic DNA analysis.
22 Q. All right. Dr. Johnson, I'm not going to
23 reiterate all of the questions that I asked you on March 1
24 and 2, but just to give a little context, do you recall
25 testifying on March 2nd about certain consumptive tests that

6
1 you witnessed at the C.B.I. in late February, February 25
2 through 27, of 2004?
3 A. Yes.
4 Q. And can you briefly tell the Court what you recall
5 about what was tested and what the results of those tests
6 were at the C.B.I?
7 MR. HURLBERT: Judge, objection. This is beyond
8 the scope of the fourth offer of proof.
9 MR. HADDON: It's already in evidence and I'm just
10 trying to set some context, Your Honor.
11 MR. HURLBERT: And it's cumulative.
12 THE COURT: Well, I think since it's been quite a
13 while that we had previous testimony. To set the context is
14 a legitimate purpose, so long as that is done.
15 MR. HADDON: And I don't intend to spend much time
16 on it, I just want to bring it in focus.
17 Q. (By Mr. Haddon) So you may answer.
18 THE COURT: Go ahead.
19 Q. What tests you observed at the C.B.I. on February
20 25 through 27, and what the results of those tests were?
21 A. Yes, I do.
22 Q. Okay. Can you tell us generally what those tests
23 were and what the results were.
24 A. There were three items tested that were swabbings
25 from Miss_______ inner thigh, and also swabbings of her

7
1 perineum area and her fingernails.
2 Q. With respect to the swabs from the inner thigh, do
3 you recall where they came from and in what form they
4 appeared prior to being swabbed?
5 A. According to the sexual assault examiner nurse's
6 notes, I believe two swabs -- there were circular areas
7 described, one on one thigh, two on the other thigh, and it
8 was areas of flourescence described by the nurse examiner.
9 Q. And with respect to the thigh swabs, do you recall
10 what the results of the DNA testing were?
11 A. Yes. Well, they were -- actually was spermatozoa
12 observed on the swabs. They were also positive for P30,
13 which is a protein found in seminal fluid. And for acid
14 phosphatase. Now that, the AP and the P30 test, was done
15 prior to my being there, but I did observe the sperm
16 microscopically.
17 And the DNA result was that the -- there was one
18 primary contributor in the sperm cell fraction, and that was
19 the same male individual that was found in the yellow
20 panties.
21 Q. And was that Mr. Bryant?
22 A. No.
23 Q. Can we refer to that person in this examination,
24 the male contributor, as Mr. X?
25 A. Yes, we -- I think we go back and forth between

8
1 Mr. X and male one, so we mean the same person when we say
2 that.
3 Q. All right. With respect to the perineum testing
4 that you observed, can you tell the Court what the results
5 of that testing were?
6 A. Sure. The -- the swab had previously been tested
7 positive for acid phosphatase and positive for P30, which is
8 a seminal fluid protein. We did observe spermatozoa on the
9 slide at that time that I was present, and the DNA in the
10 sperm cell fraction was primarily -- it was a mixture, but
11 of DNA of Mr. X and Miss ________. Mr. Bryant is excluded
12 as being a contributor to that sample.
13 Q. And were there also fingernail clipping extracts
14 which were tested in your presence in February of 2004?
15 A. Yes.
16 Q. And what were the results of those tests?
17 A. I believe the DNA was from Miss________ as the
18 source.
19 Q. And these were fingernail clippings taken from
20 Miss_________?
21 A. Yes.
22 Q. Do you recall whether or not there was any DNA
23 from Mr. Bryant present in those fingernail clipping?
24 A. There was not.
25 Q. All right. Moving forward, did you, when you were

9
1 at the C.B.I., obtain certain split samples?
2 A. Yes.
3 Q. Can you tell the Court what split samples you
4 received from the C.B.I. and how they were split?
5 A. The splits that I received at that time were -- or
6 observed being split at that time, and then they were
7 shipped to us later, were splits from Miss_______ sexual
8 assault kits of swabs, swabbings -- wait a second. It was
9 swabbings from her neck and jaw, cervical swabs, oral swabs,
10 buccal swabs, and vaginal opening swabbed, vaginal swabs,
11 anal swabs.
12 We also received splits of the penal swabs from
13 Mr. Bryant, and digit swabs from Mr. Bryant. And we
14 received the reference blood sample splits also, and then
15 splits of the soaking solution that was used to soak off the
16 thigh swab and the perineum swab.
17 Q. All right. With respect to the swabs themselves,
18 who did the splitting?
19 A. Mrs. Woods and I were together looking at the
20 swabs, and I -- she asked me to choose which ones I wanted,
21 and I chose, and she put them in separate packing for me.
22 Q. When you say Mrs. Woods, is that Yvonne Woods of
23 the C.B.I.?
24 A. Yes.
25 Q. And is she in the courtroom today?

10
1 A. Yes.
2 Q. The swabs, were they cut in half, or were there
3 two swabs that -- that were present from each area of the
4 body?
5 A. Sometimes there were two -- sometimes there were
6 four swabs, and I took two for my set, and sometimes if
7 there were just two swabs total, I took one.
8 Q. Were any of the swabs actually cut in two with you
9 taking half and C.B.I. retaining half?
10 A. No. Not -- not that dramatically. Sometimes
11 there -- sometimes one of the swabs had a small part of the
12 tip removed that had previously been used by C.B.I. to do
13 some presumptive tests.
14 Q. All right. In addition to getting those split
15 samples that you've described, did you also take possession
16 of some physical evidence, or was it shipped to you, for
17 analysis?
18 A. Bulk evidence, you mean?
19 Q. Yes.
20 A. Yes, it was.
21 Q. And can you tell the Court generally what that
22 bulk evidence was?
23 A. Various items of clothing from Miss _________.
24 Sport coat, dress, shoes, and underwear, purple panties,
25 yellow panties, and some of the crotch parts that were

11
1 excised from those. And clothing from Mr. Bryant.
2 T-shirts, outer clothing.
3 Q. And were all of these items of evidence, the
4 splits and the bulk clothing, subjected to analysis by a
5 laboratory that you work with in conjunction with?
6 A. Yes.
7 Q. And what's the name of that laboratory?
8 A. Technical Associates.
9 Q. And who did the testing and analysis of all of
10 this evidence?
11 A. Pretty much everybody there, including myself. I
12 think everybody was involved in -- in it. The primary
13 evidence examination of the items was done by myself and
14 Mark Taylor.
15 Q. Who's Mark Taylor?
16 A. Mark Taylor is the president of Technical
17 Associates.
18 Q. Okay. And did he participate in both the evidence
19 examination and the DNA testing itself?
20 A. He definitely participated in the evidence
21 examination, and to -- probably in the DNA testing. I would
22 have to go through the data sheets to see. A lot -- much of
23 the time the actual extraction, amplification processes are
24 handed off to an analyst, and then Mark and I analyze the
25 data that resulted from those tests.

12
1 Q. All right. I want to ask you about some of the
2 tests that you conducted and what you found. And as a
3 preface to that, did you prepare a summary of those tests?
4 Of the tests you conducted, the DNA tests?
5 A. I prepared a report, yes.
6 Q. All right. That's been probably provided to the
7 Court. I want to call your attention to Exhibit 1 of that
8 report. Do you have that in front of you?
9 A. Are you talking about the May 8th report?
10 Q. The May 8th report?
11 A. Okay. Table 1?
12 Q. Table 1. Correct.
13 A. Okay.
14 Q. Do you have that in front of you?
15 A. Right.
16 Q. Let me ask you about various items of physical
17 evidence and what tests you performed and what the results
18 of those tests were.
19 First of all, with respect to the purple panties.
20 What kind of tests did you perform on the purple panties?
21 A. Well, the panties and the crotch were separate, so
22 they got separate evidence numbers. Initially they were
23 photographed, examined under UV light, examined under
24 visible light. We made tests, presumptive tests, for the
25 presence of blood, which is ortho-tolidine and hydrogen

13
1 peroxide were our tests reagents.
2 We did testing for acid phosphatase, testing for
3 P30 protein. For amylase, which is an enzyme found in
4 saliva in high concentrations. And that was it at our
5 initial examination stage.
6 Q. How many cuttings did you take from the purple
7 panties, including the crotch, for examination?
8 A. Let's see. There was one from the bulk of the
9 panties --
10 Q. When you say bulk, where is that located
11 physically?
12 A. Well, that's the part that remains with the
13 waistband attached, and that's what I call the bulk of the
14 panties. And there were four taken from the part of the
15 crotch that had been previously cut out by C.B.I.
16 Q. Do you know where the C.B.I. took its cutting for
17 C.B.I. and DNA analysis purposes, from the purple panties?
18 A. Yes. From the string part, toward the rear of the
19 panties.
20 Q. Can you tell the Court what the results of your
21 testing were with respect to the cuttings you took from the
22 purple panties?
23 A. Okay. Each of the cuttings?
24 Q. Yes.
25 A. Sure. The -- in terms of presumptive tests or DNA

14
1 analysis or both?
2 Q. Both.
3 A. Both. Okay. Both. The first cutting that was
4 14-A was from the panties itself, and there were visible
5 blood staining and ortho-tolidine positive, so there was a
6 presumptive positive test for the presence of blood. That
7 particular cutting was positive for acid phosphatase and
8 P30, and a few sperm. And there were also some nucleated
9 epithelial cells there.
10 In terms of the DNA testing itself, in the sperm
11 fraction when we ran the STR testing at, the results were
12 that there was a mixture. And again, confining my possible
13 donors as we did in our chart to the three individuals,
14 Mr. Bryant, Miss ________, and Mr. X, or male one, we found
15 that male one was the -- in a larger quantity than
16 Mr. Bryant, and perhaps a trace of Miss _______ in that --
17 in that sample.
18 Q. In the sperm fraction you find both Mr. Bryant and
19 Mr. X?
20 A. Yes.
21 Q. And Mr. X in larger quantities than Mr. Bryant?
22 A. That's right.
23 Q. All right. Tell us about the second cutting you
24 took from the purple panties, and what the results of those
25 tests were.

15
1 A. The next cutting we took was our number 14-A1, and
2 that was from a portion of the string part of the --
3 Q. A portion of the string?
4 A. Of the string part of the excised crotch. It was
5 presumptive test for blood positive, with ortho-tolidine.
6 Positive for acid phosphatase and P30, and a few sperm were
7 detected.
8 There were -- the actual DNA typing with STR
9 analysis was that Mr. Bryant, in the sperm fraction,
10 Mr. Bryant was present in a larger quantity than male one
11 and Miss ________ at roughly the same concentrations, male
12 one and Miss _________.
13 Q. So in that particular cutting of the string
14 portion of the panties you find Mr. Bryant predominant, and
15 also Mr. X or male one?
16 A. Yes. They both are present, yes.
17 Q. All right. Tell us about the third cutting you
18 took from the purple panties.
19 A. Okay. That's our 14-A2. It's a portion of the
20 crotch. It's ortho-tolidine positive, so there was blood
21 present. Acid phosphatase and P30 positive. A few
22 spermatozoa were detected.
23 The sperm cell fraction on STR analysis was that
24 male one was predominant, more so than Miss ________, and a
25 trace of Mr. Bryant. There was a full profile of male one

16
1 detected and peak heights were quite high.
2 Q. And male one or Mr. X is the male who's found in
3 the yellow panties?
4 A. That's the same person.
5 Q. By the C.B.I?
6 A. Correct.
7 Q. And was there any trace of Mr. Bryant found in the
8 yellow panties by either you or the C.B.I?
9 A. No.
10 Q. All right. Tell us about the fourth -- I believe
11 the fourth cutting from the purple panties.
12 A. That's our 14-A3. That's another portion of the
13 crotch, positive for the ortho-tolidine indicating presence
14 of blood, and visible blood was seen. Acid phosphatase and
15 P30 positive. A few sperm detected. In the sperm cell
16 fraction on the STR analysis, the possible donors are that
17 Mr. Bryant was predominant, then followed by Miss ________,
18 followed by male one.
19 Q. All right. And was there a fifth cutting that you
20 took from the purple panties?
21 A. Yes. That's our 14-A4. It was ortho-tolidine
22 positive, AP positive, P30 positive, a few spermatozoa were
23 detected. The DNA typing was very low. We did not get full
24 profiles on any particular person, but we -- the alleles
25 that we did detect could have come from these three

17
1 individuals. So it's possible that all three people were in
2 there, it's just very, very low profile.
3 Q. When you say allele, could you first spell it and
4 then tell the Judge what that is.
5 A. It's a-l-l-e-l-e. And allele is a -- it's a
6 genetic marker. Usually people have -- at any given genetic
7 location they will have one -- they will have two alleles.
8 One from their mother, one from their father. It may appear
9 as though they only have one, and that's because they got
10 the same allele, or genetic trait, from their mother and
11 their father.
12 Q. Now, in addition to the tests you did on the
13 purple panties, did you do tests on the cervical swabs from
14 Miss ________ sexual assault examination kit?
15 A. Yes.
16 Q. And could you tell us what the results of your
17 testing on Miss _________ cervical swabs were?
18 A. Okay. Those are our 16-D, two cervical swabs.
19 Weak positive for ortho-tolidine. That's again the
20 presumptive test for blood. The acid phosphatase test was
21 inconclusive. The P30 test was negative. And we observed a
22 few spermatozoa. The sperm cell fraction at the DNA on
23 STR -- on STR testing was that Miss _________ was
24 predominant. Again, that's carryover from the female
25 fraction, from the non-sperm cells. And a low level of male

18
1 one, or Mr. X, as we call him. And Mr. Bryant is excluded
2 at that focus.
3 Q. So Mr. Bryant is excluded as a source of the sperm
4 you found on Miss __________ cervical swab?
5 A. Right. And we then outsource that extract for X
6 chromosome testing.
7 Q. Why'd you do that?
8 A. Well, Y chromosome testing targets only the short
9 tandem repeats on the Y chromosome. So any carryover
10 contribution from Miss _________ would not be detected in
11 doing that type of testing.
12 Q. Who did the Y chromosome testing?
13 A. A lab called ReliaGene.
14 Q. And what were the results of their tests on the
15 cervical swab extract?
16 A. That was -- they did a five focus examination,
17 fiveplex, and they got results at four or five loci, and
18 that was a single source, and it was a Mr. X. Mr. Bryant
19 was excluded.
20 Q. All right. Did you also conduct testing of the
21 vaginal swabs which you received from the C.B.I.
22 A. Vaginal or vaginal opening?
23 Q. We can do either.
24 A. Next on my list is vaginal opening, so.
25 THE COURT: I'm sorry, I couldn't hear you.

19
1 THE WITNESS: I said, next on my list is vaginal
2 opening.
3 Q. (By Mr. Haddon) Did you conduct tests of vaginal
4 opening swabs from Miss _______ sexual assault examination
5 kit?
6 A. Yes.
7 Q. And can you tell the Court what the results of
8 those tests were?
9 A. Yes. That's our 16-K. It was one vaginal opening
10 swab, positive with ortho-tolidine, positive with acid
11 phosphatase and P30 testing. A few spermatozoa were
12 detected microscopically.
13 The sperm cell fraction, using the STRs in-house,
14 was that Miss ________ was the predominant donor, again that
15 was carryover from the female fraction, and Mr. -- or male
16 one, Mr. X, was also present. A full profile was detected,
17 possibly a trace of Mr. Bryant. And then when that extract
18 was sent or analyzed at ReliaGene with Y chromosome testing,
19 male one, or Mr. X, was present at all four -- at all five
20 loci tested, and there was possibly some weak alleles at
21 loci that could have come from Mr. Bryant. So he was
22 missing at two, so that could be due to low level.
23 A. At two loci of the five.
24 Q. All right. Did you conduct testing on swabs taken
25 from Miss____________ vagina?

20
1 A. Yes.
2 Q. And can you tell the Court what tests you
3 conducted and what the results of those tests were?
4 A. That's our 16-M, and it was two vaginal swabs.
5 They were positive with ortho-tolidine, indicating -- even
6 though they were not visibly stained they were indicating
7 chemical reactivity for the presence of blood. The acid
8 phosphatase was inconclusive. The P30 test was positive,
9 and there were a few spermatozoa present.
10 And on the Profile Plus testing, the STR testing
11 we did, Miss___________ was the predominant DNA donor of the
12 sperm cell fraction, and male one was present. All of his
13 alleles were present for male one. Mr. Bryant was excluded.
14 Q. And these are swabs taken from the interior of
15 Miss___________ vagina?
16 A. That's usually what a swab is, internally. An
17 internal vaginal swab.
18 When we sent that off for -- I'm sorry, I said
19 that was P30 positive. That's P30 negative on that swab.
20 THE COURT: I'm sorry. You said that P30 was
21 negative?
22 THE WITNESS: It's P30 negative on the vaginal
23 swab.
24 THE COURT: You had previously --
25 THE WITNESS: I may have.

21
1 THE COURT: And AP negative?
2 THE WITNESS: AP was -- AP was inconclusive.
3 THE COURT: Inconclusive. Thank you.
4 I just -- maybe now is a good time to maybe sure
5 you have all of the spellings. What do you need Michelle?
6 THE REPORTER: I'll check at a break.
7 THE WITNESS: And then lastly, when that sample
8 was analyzed for the Y chromosome on the vaginal swabs,
9 there was results at five -- all five loci that were tested,
10 and it was male one present.
11 The lab actually did two separate amplifications
12 on that sample, and in one amplification it just showed
13 single source, male one. In another amplification they had
14 two weaker alleles come up at two loci, which could have
15 come from Mr. Bryant, that would mean he would be -- his
16 alleles at three of the remaining loci would have dropped
17 out. It was not reproducible between the two amplifications
18 for the presence of a second donor, but male one was
19 consistently present between their two amplifications at all
20 five loci on that sample.
21 Q. And you actually observed sperm in the vaginal
22 swab?
23 A. Yes.
24 Q. Did you conduct any testing of Miss__________ anal
25 swab?

22
1 A. Yes. And that is our 16-N, as in Nancy. It was
2 two anal swabs. These were not tested with ortho-tolidine,
3 they were weak positive for acid phosphatase and positive
4 for P30, and a few spermatozoa were observed.
5 The profile obtained using Profiler Plus,
6 in-house, was that male one and ___________ profiles were
7 approximately equal and in predominance over Mr. Bryant,
8 which could be Mr. Bryant's profile.
9 And the Y chromosome testing showed that Mr. --
10 male one or Mr. X was -- results were obtained at four loci,
11 and possibly Mr. Bryant's alleles showed up at two loci, at
12 a weak level.
13 Q. I believe you previously said you conducted some
14 tests on the yellow underwear, correct?
15 A. Right.
16 Q. Can you tell the Court in more detail what tests
17 you conducted and what the results of those tests were?
18 MR. HURLBERT: Objection, Judge. That is beyond
19 the offer of proof.
20 THE COURT: Response.
21 MR. HADDON: I should look at the offer of proof.
22 THE COURT: I guess we all could do that.
23 MR. HADDON: Mrs. Mackey tells me that
24 Mr. Hurlbert's correct, that it is beyond the offer of
25 proof, so I'll move on.

23
1 Q. Did you conduct tests on Mr. Bryant's T-shirt?
2 A. Yes.
3 Q. The T-shirt that police say he was wearing during
4 his encounter with Miss___________ --
5 MR. HURLBERT: Judge, that's also beyond the offer
6 of proof.
7 THE COURT: What's the date on that?
8 MR. HURLBERT: Judge, the offer of proof is May
9 21st, 2004.
10 MR. HADDON: Your Honor, there is reference to
11 C.B.I.'s findings with respect to the yellow panties, but
12 not specifically Dr. Johnson's and Technical Associates. So
13 we will rely on the C.B.I. findings in that respect.
14 THE COURT: All right. So then you're going to
15 amend that questioning with respect to Dr. Johnson?
16 MR. HADDON: With respect to the yellow underwear
17 we're going to rely on the C.B.I. findings, with respect to
18 this hearing. I am going to pursue a line of questioning
19 with regard to the T-shirt and with regard to the penile
20 shaft swabs, because they don't show the presence of --
21 MR. HURLBERT: Objection, Judge. The --
22 THE COURT: Let him finish, please.
23 MR. HURLBERT: Okay.
24 MR. HADDON: They don't show the presence of
25 Mr. X, and therefore they're not the kind of findings that

24
1 would be presumptively irrelevant in a Rape Shield. They
2 only show the presence of Mr. Bryant. But those tests are
3 important to the conclusions that are drawn.
4 THE COURT: Mr. Hurlbert.
5 MR. HURLBERT: Judge, it's beyond the scope of
6 their offer of proof. It says the defense seeks to recall
7 Mrs. Johnson on June 21st with respect to the scientific
8 evidence referenced above.
9 The scientific evidence referenced above are
10 contained in part A and B of our offer of proof. The sperm
11 and semen of Mr. X is present. The male DNA from the sperm
12 extracted from Miss __________ July 1, 2003, cervical swab,
13 vaginal contents swab, vaginal opening swab and anal swab
14 are all consistent with the DNA profile of Mr. X.
15 That's their offer of proof, Judge. I would ask
16 that they be limited to that offer of proof.
17 MR. HADDON: For purposes of a Rape Shield
18 analysis only the presence of Mr. X is the subject of this
19 hearing. The lack of presence of Mr. X relates to contact
20 with Mr. Bryant, which isn't subject to the Rape Shield law,
21 and we wish to draw some conclusions from the lack of
22 presence. And those are test results that Mr. Hurlbert has
23 had for over a month.
24 MR. HURLBERT: Not a part of Rape Shield, and
25 what's the relevance? If they're relevant, then they should

25
1 have been included in their offer of proof.
2 THE COURT: Well, it's not a part of Rape Shield,
3 so why are we going into it at this juncture?
4 MR. HADDON: Because some of the conclusions that
5 Dr. Johnson and other experts draw require reliance in part
6 on the lack of Mr. X on Mr. Bryant's penile shafts and on
7 his T-shirt. And so although it's not evidence that is
8 subject to exclusion under the Rape Shield statute, it is
9 evidence, direct evidence, that forms the basis for some of
10 the opinions that are going to be expressed. Opinions that
11 relate to evidence that is presumptively subject to the Rape
12 Shield statute.
13 THE COURT: Anything further, Mr. Hurlbert?
14 MR. HURLBERT: No, Judge.
15 THE COURT: Well, it is relevant to the issue
16 relating to the presence or a lack thereof and the ultimate
17 opinion. It is not subject to the requirement for the
18 disclosure under the Rape Shield statute. The objection is
19 overruled.
20 Q. (By Mr. Haddon) Mrs. Johnson, Dr. Johnson, I want
21 to ask you what tests you performed with respect to
22 Mr. Bryant's T-shirt, the T-shirt that he was allegedly
23 wearing during his encounter with Miss___________?
24 A. Okay. That's a white Nike T-shirt, and then there
25 was also some cuttings that were removed from that T-shirt

26
1 that we got from C.B.I. so they were examined together,
2 photographed, and there were presumptive tests made for the
3 presence of blood using ortho-tolidine reagents. We did
4 tests for the presence of amylase. We did tests for --
5 Q. Could you speak up a little bit?
6 A. I'm sorry. We did tests for the presence of
7 amylase, tests for the presence of P30 and extraction, a
8 differential extraction in such a way that we could see
9 sperm, or nucleated -- epithelial cells, microscopic
10 examination.
11 Q. And how many cuttings did you take from that
12 T-shirt?
13 A. Um, in totality there were nine -- between the
14 cuttings from the shirt and the cuttings from the excisions
15 that C.B.I. had previously excised, we tested nine samples.
16 Q. And can you tell the Court in summary what the
17 results of those tests were?
18 A. Um, in summary -- and then we did a DNA analysis.
19 And in summary we found only Mr. Bryant and Miss _______.
20 We found no indication of male one or Mr. X at all on any of
21 the samples that we tested, at Technical Associates.
22 Q. Let me ask you some questions about the penile
23 shaft swabs that were tested. First of all, are you aware
24 of the results of the C.B.I. testing on the penile shafts
25 taken from Mr. Bryant on July 2nd, 2003?

27
1 A. Yes.
2 Q. And what were those results?
3 A. Um, only a mixture -- I believe a mixture of
4 Mr. Bryant and ____________ were detected. There was no
5 indication of Mr. X.
6 Q. Did you also conduct tests on the penile swabs
7 from Mr. Bryant?
8 A. Yes.
9 Q. Can you tell the Court what the results of those
10 tests were?
11 A. Yes. We found P30 positive and a few sperm
12 observed, and the spermatozoa were all single-source,
13 Mr. Bryant. There was no Mr. X detected at all. There was
14 also no -- none of Mr. X detected in the non-sperm fraction.
15 So he -- Mr. X was not on that sample at all.
16 Q. Now, based on the tests that you conducted and
17 based on the tests that C.B.I. conducted that you're aware
18 of, have you been able to form any opinions with respect to
19 the prosecution's theory that the DNA from Mr. X was
20 transferred from the yellow panties?
21 A. Yes, I have.
22 Q. All right. And what is your understanding of what
23 the prosecution theory is regarding transference?
24 MR. HURLBERT: Judge, objection. We've already
25 been over this once before on March 2nd. I think we are

28
1 cumulative and beyond the scope of this particular hearing.
2 MR. HADDON: We went over it before we had the
3 benefit of their tests.
4 THE COURT: Well, it's not beyond the scope. And
5 your response is that it was discussed prior to having the
6 benefit of the tests?
7 MR. HADDON: Yes. Prior to any of Dr. Johnson and
8 Technical Associate's tests.
9 THE COURT: Reply.
10 MR. HURLBERT: We're talking about two different
11 things here, Judge. What she has testified to here today is
12 the DNA found inside the vaginal opening, the vaginal swabs,
13 the cervical swabs, and the anal swabs, and also the purple
14 G-string. That's what we're talking about here today.
15 What they're trying to bring in is the DNA found
16 on the two parts of the perineum and the inner thigh, and,
17 Judge, we have already been over that, we have already done
18 that on March 2nd, and that's the People's idea that it --
19 that the transfer comes from those. So we are talking about
20 two different issues here.
21 THE COURT: But the objection as to cumulative is
22 with regard to testimony prior to these testing being
23 conducted.
24 MR. HURLBERT: Correct. Correct. These tests
25 are -- as I said, these tests are different tests, they're

29
1 different parts of the body, they're on different pieces of
2 evidence than the tests that were done before, which is the
3 consumptive testing that Dr. Johnson did with Agent Woods,
4 which we went over with on March 2nd.
5 THE COURT: In that context of the tests that had
6 been completed at that point in time.
7 MR. HURLBERT: Correct. But these are two
8 distinctly different tests.
9 THE COURT: Objection's overruled.
10 Q. (By Mr. Haddon) I think I was at the point of
11 asking you what your understanding of the prosecution's
12 transfer theory is?
13 A. Well, my understanding of their theory is that
14 Miss __________ put on a pair -- the yellow panties that had
15 semen in them to -- REDACTED
16 that is semen and sperm from Mr. X, and that those yellow
17 panties with this dry semen stain are the source of all of
18 the sperm and semen attributable to Mr. X found on her body,
19 in her internal swabs, and basically everywhere that Mr. X
20 is found, and that would include the purple panties as well.
21 Q. And do you have an opinion to a reasonable degree
22 of scientific certainty as to whether or not the scientific
23 evidence supports that theory?
24 A. I do.
25 Q. And what is your opinion?

30
1 A. My opinion is that that transfer theory cannot
2 support all of these findings in totality.
3 Q. And can you explain that to the Court, what are
4 the bases for that opinion?
5 A. Sure. Well, first of all, the thigh swabs that
6 were taken from Miss __________, and the source of the sperm
7 in the thigh swabs was Mr. X. It also contained detectible
8 seminal fluid protein. There was no indication of blood
9 present on those thigh swabs. I test -- I tested those,
10 Mark Taylor at Technical Associates, and it was negative
11 with ortho-tolidine, which is a very, very sensitive
12 chemical test reagent.
13 Q. And was that the same result C.B.I. got?
14 A. They found no blood on the swab. They used a
15 different test reagent, phenolphthalein, but it is also very
16 sensitive. So those swabs were negative for blood.
17 Q. Why is that significant?
18 A. Well, the yellow panties were visibly blood
19 stained, heavily stained with blood, and in order for the
20 yellow panties to be a source of -- or for sperm and semen
21 to be transferred from the yellow panties, they would need
22 to be rewet in order to be -- for this material to transfer
23 to her thighs. This was not crusty, flaky material in the
24 yellow panties, it was well absorbed into the material. So
25 the material, the biological cellular material in the yellow

31
1 panties would need to be wet and then deposited on her
2 thighs.
3 Well, if you assume the wetting agent is blood,
4 then the blood would have also transferred to her thigh
5 area, and that is not detected in these tests.
6 Also the examiner described them as circular
7 spots. I think it would be highly coincidental for someone
8 in the act of putting on underwear to make three separate
9 circular spots on their thighs, if in fact all three or even
10 one is, you know, the source of the semen, which is what the
11 nurse examiner collected.
12 In terms of the external genital swabs, the
13 perineum swab, the vaginal opening swab, those samples could
14 possibly transfer -- enough sperm and semen could transfer
15 from yellow panties to those areas to explain Mr. X being
16 there, but it is highly unlikely to explain how that
17 material got internally, and especially on the cervical swab
18 and the vaginal swab. That seems very unlikely.
19 REDACTED
20 ///
21 ///
22 ///
23 ///
24 Transfer from the yellow panties doesn't explain
25 Mr. X in the purple panties, and he was present in multiple

32
1 cuttings on the purple panties.
2 And more importantly, or very importantly, I would
3 say, not maybe more importantly, the fact that Mr. Bryant's
4 T-shirt which he wore at the time, so we're talking about a
5 snapshot forensic evidence at the time this event, alleged
6 assault happened in the hotel room, neither -- none of the
7 nine samples that we tested, nor did the two samples that
8 C.B.I. tested from his Nike T-shirt, showed any indication
9 of Mr. X at all.
10 Now, if Mr. X had been present, if his sperm had
11 been present internally at the time Mr. Bryant penetrated
12 her, we would expect to find some sample, some low-level
13 amount of sperm from Mr. X on some of those samples or on
14 his penile shaft swab, and those aren't -- that's not found
15 at all. Nothing from Mr. X is found on the any key T-shirt
16 or on Mr. Bryant's penile shaft swab.
17 So in totality, it's just extremely far-fetched
18 and unlikely that transfer from the yellow panties could
19 account for all of these findings.
20 Q. All right. Have you also been able to form an
21 opinion based on a reasonable degree of scientific certainty
22 as to whether the evidence supports the conclusion that
23 Mr. X, or male one, whomever you choose to call him, had
24 sexual contact with Miss __________ after Mr. Bryant?
25 A. Yes.

33
1 Q. And what is your conclusion?
2 A. Well, given the lack of Mr. X anywhere on the nine
3 samples, or actually 11, between what we tested and C.B.I.
4 tested on the Nike T-shirt, and their testing of penile
5 shaft swab Mr. Bryant, and our testing of the penile shaft
6 swab from Mr. Bryant, that it is likely that there was not
7 any sperm from Mr. X inside Miss _______ at the time
8 Mr. Bryant had his encounter with her, and that sexual
9 contact, taking everything in totality, likely occurred
10 after Miss ___________ and Mr. Bryant were together.
11 Q. Is the presence of Mr. X in the purple panties a
12 factor in your conclusion in this regard?
13 A. Yes.
14 Q. Why?
15 A. Well, again, Mr. X is present in more than one
16 cutting from the purple panties. In one particular cutting,
17 I think it's 14-A2, he is the predominant donor. It's
18 indisputable profile obtained with very good peak heights,
19 and it's just very unlikely that transfer from the yellow
20 panties are serving as the source of transfer to all of
21 these different areas, in the purple panties and on her body
22 swabs.
23 Q. Is it a factor in your conclusions that
24 Miss __________ told Detective Winters that the panties were
25 clean when she put them on?

34
1 A. Yes.
2 Q. And why is that important?
3 A. Well, if they are clean -- if they were clean on
4 the morning that she put them on, then this presence of
5 Mr. X in the purple panties could not have been due to
6 drainage from her if in fact she had had sexual contact with
7 Mr. X earlier that day. That's not -- any of that wouldn't
8 be a factor.
9 The other thing is that, not in regard to the
10 purple panties but the thigh swabs, I believe she was -- her
11 statement was she showered on the morning of the 30th. So
12 the deposit on her thighs would have to be made sometime
13 that day, during that -- during June 30th. Or I guess
14 between the morning of June 30th and her sexual assault
15 examination.
16 MR. HADDON: I have nothing further, Your Honor.
17 THE COURT: Cross.
18 MR. HURLBERT: Judge, considering that we went
19 into some areas that was beyond -- the People feel was
20 beyond the scope of their offer of proof, can we take a
21 ten-minute break so I can talk to Dr. Lee about some of this
22 new stuff that came out?
23 THE COURT: Sure.
24 MR. HURLBERT: Thank you, Judge.
25 THE COURT: We'll take a recess. You may step

35
1 down.
2 (A recess was then taken.)
3 THE COURT: Mr. Hurlbert.
4 MR. HURLBERT: Thank you, Judge.
5 CROSS-EXAMINATION
6 BY MR. HURLBERT:
7 Q. Good morning.
8 A. Good morning.
9 Q. It's Dr. Johnson, right?
10 A. Yes.
11 Q. I just want to make sure I get it right.
12 And looking at your CV, it looks like you've been
13 doing this for quite a while, haven't you?
14 A. Since the end of 1991.
15 Q. '91. So you've done a bunch of DNA testing, all
16 that, right?
17 A. Yes.
18 Q. And you even worked for a crime lab, right,
19 Houston?
20 A. Harris County.
21 Q. Harris County. Now let's talk about this case.
22 You said that a whole bunch of people did the testing on
23 this, right?
24 A. The lab staff, yes.
25 Q. Lab staff.

36
1 A. And myself.
2 Q. In the report on here, it says that you reviewed,
3 you reviewed the testing, right?
4 A. Yes. And I reviewed data and authored part of the
5 report, as a matter of fact.
6 Q. You and it looks like a Betty Lynn and --
7 A. And Mark Taylor.
8 Q. And Mark Taylor.
9 Now, on the notes it mentioned a person named
10 J.E.B. Do you know who J.E.B. is?
11 A. Jessica Bickham.
12 Q. Could I get the spelling of that, last name?
13 A. Last name? I think it's B-i-c-k-h-a-m.
14 Q. And who is she?

15 A. She's a technician. She does not do the actual
16 case sample analysis, but she'll do some of the presumptive
17 tests stuff, like the P30s and that sort of thing.
18 Q. And there was also a C.M.C. Who's that? C.M.C?
19 A. C.M.C. That's Carley Cardenas.
20 Q. And could I get his last name spelled, too?
21 A. C-a-r-d-e-n-a-s.
22 Q. And is he another lab tech?
23 A. Yes.
24 Q. And what sort of stuff does he do?
25 A. The same type of thing that Jessica does. They'll

37
1 log in evidence, do the same type of thing, the same
2 presumptive tests. Sometimes make the slides, or process
3 the slides once they're made. But they don't actually do
4 the actual extractions.
5 Q. So on the -- so on the -- and do they work for
6 TAI?
7 A. Yes.
8 Q. And so on the four samples that we're really
9 talking about here, the -- although I guess there's four --
10 there's three crotch samples of the purple G-string
11 underwear, the cervical swabs, the vaginal swabs, the anal
12 swabs, those -- those that we're talking about here, who did
13 the extractions on those, do you know?
14 A. I would have to look through the data sheets and
15 see.
16 Q. Was it you?
17 A. No, I didn't do the extractions. I examined the
18 purple panties. Betty Lynn took the actual swabs, the body
19 swabs, and I think she did the extractions. I would have to
20 look at the actual data sheets to see who did every piece of
21 the analysis.
22 Q. How about -- now, you said that you have these lab
23 techs to do the P30 testing. Most likely they did the P30
24 testing on this -- on the evidence that we're talking about?
25 A. I think so. Again, I would have to look at the

38
1 data sheets to see.
2 Q. Just -- it wasn't you, though, right?
3 A. It wasn't me.
4 Q. And the amylase is probably the same thing?
5 A. Same thing.
6 Q. You didn't do the amylase?
7 A. That's correct.
8 Q. Now, how about the PCR, which that's the real DNA
9 testing, right?
10 A. Well, it's all of the DNA testing. That's the
11 amplification stuff.
12 Q. The amplification stuff. Do you know who did
13 that? Do you know on this part?
14 A. There were many amplification runs, so it would be
15 on each data sheet.
16 Q. Did you do any of these?
17 A. No. I did the evidence examination, I looked at
18 the slides, recall the sperm or the nonnucleated epithelial
19 cells. I looked at the data once it came off. I did
20 actually observe some of the acid phosphatase testing, and
21 then the final data, reviewed that. I worked on the report
22 for days -- days and days -- reviewing all -- reviewing the
23 data, going back and looking at the slides, and that sort of
24 thing.
25 Q. And doing the report for days and days was

39
1 probably the least -- least fun of the whole process, huh?
2 A. It was grueling.
3 Q. You know, I had a whole list of other things but
4 you answered all of those questions, so let's move on a
5 little bit to -- now let's move on to the actual testing.
6 A. Okay.
7 Q. And let's start first of all with the purple
8 G-string underwear.
9 A. Okay.
10 Q. Okay. And it looks like you did one test of, for
11 lack of a better word, the major portion of the underwear,
12 and then three tests on the crotch area, right? Do I have
13 that right?
14 A. Let's see. We did one -- one cutting from the
15 bulk park, and then four -- four cuttings from the excised
16 part, the crotch excision that came -- that came to us
17 packaged separately from C.B.I. And those were the 14 --
18 14-A1, A2, A3, and A4.
19 Q. And on those tests, in your report you have that
20 there is -- sperm was found, correct?
21 A. Yes.
22 Q. And it has a little E there. And when you go back
23 to the key, it says E is fewer than one cell per HPF. What
24 does HPF mean?
25 A. That's high-powered field. That's 400

40
1 magnification.
2 Q. So that's under the microscope?
3 A. Right.
4 Q. So basically when there is an E, that's one sperm
5 cell?
6 A. No. That's -- if you scan the whole slide and you
7 could find one or you could find 50. If you -- and we scan
8 the whole slide, meaning we view the whole slide, and there
9 was -- the spot made on the slide. And so it varies. It
10 could be two, three. Our computer on the data sheet will
11 not allow us to put an extra character in, so it has to come
12 up each, it won't let us say two each, it just lets us say
13 each. But we record the actual number, when we can, on the
14 slide itself.
15 Q. So do you know how many were on the, let's say,
16 2063.14-A1, the portion -- the portion string purple
17 panties? It says E?
18 A. That one said, let's see. It had an "each" on the
19 slide. That -- there were very few. So --
20 Q. What does that mean? That mean -- and I guess I'm
21 trying to -- what does very few mean? Unfortunately I'm not
22 as skilled as you are, so I'm kind of trying to get some of
23 the -- what you mean by very few?
24 A. Again, we didn't actually score a number on that,
25 but I would say less than five on the portion that we

41
1 made -- on the portion of the cell pallet that we took for
2 the slide, and that was -- again, you have to bear in mind
3 that there's only a portion taken to put on the slide, and
4 it's usually two microliters out of 50, and it was in that
5 case, two out of 50.
6 Q. And you said you found probably right around five?
7 A. No. I said it was probably less than five in that
8 case, in each.
9 Q. And how about on 14-A2, the portion of the crotch
10 purple panties?
11 A. On the slide, there was two observed on the slide.
12 Q. How about the next one, how about 14-A3?
13 A. Again, that was scored with an each. So I'm going
14 to say less than five.
15 Q. Less than five. And how about also the next one,
16 14-A4?
17 A. That was scored with just an each, so less than --
18 safe to say less than five.
19 Q. And these are five sperm --
20 A. Right.
21 Q. And we think of sperm with little head and little
22 tail, right?
23 A. Well, tails are usually gone by then, but little
24 head at least.
25 Q. So on most of these it was probably just a head on

42
1 it, right?
2 A. (Nods head.)
3 Q. And did you take any photos of this?
4 A. Of the sperm?
5 Q. Yeah.
6 A. No. Because they're on the slide, and we save the
7 slide.
8 Q. Now, you talked about the yellow underwear, and
9 it's kind of all in the same -- on the same page. It says
10 that you -- that's two plus, it looks like the sperm is.
11 That is -- make sure the record's clear. 2063.14-B1, the
12 front portion crotch area of the yellow underwear. It has
13 two plus, and the key says two to ten cells per high-powered
14 field, right?
15 A. Right.
16 Q. So it's quite a bit more than the two or five or
17 less than five that you get when you get an E, right?
18 A. Yes. It's quite a bit more.
19 Q. And then three plus is on the right brownish stain
20 crotch area of the yellow underpants, and that is ten to 50
21 cells?
22 A. Right.
23 Q. So it's even more than that, correct?
24 A. Right.
25 Q. And then if you go up to the T-shirt, which is

43
1 kind of near the top, 206.308D, the portion, OT positive,
2 smear inside front shirt, it's one plus, which is 100 cells
3 per slide to one cell per sell, so it's --
4 A. That's one per how-powered field.
5 Q. Yeah. One per high profile, but 100 cells per
6 cell is what it sounds like?
7 A. Well, usually if we see one per high-powered field
8 we call it a one plus. So that's less than --
9 Q. Less than the others, but more than the E
10 portions?
11 A. Right.
12 Q. Let's move on to the cervical swabs on the next
13 page of your report. Page 11 of 17. It says -- and this
14 is, for the record, 2063.16-D -- two OT positive, cervical
15 swabs, Miss___________. And on the presumptive test on that
16 you got AP inconclusive, right?
17 A. That's right.
18 Q. Now, what does AP inconclusive mean?
19 A. Those particular -- that particular sample and
20 some of these others I actually saw the tests run on those,
21 turned a little bit of orange, and proper color is pink for
22 acid phosphatase. So it wasn't colorless, which would be
23 negative, it was kind of -- it was the wrong -- or not the
24 typical color. So we called it inconclusive.
25 Q. And are you going to get a better reading if

44
1 there's more sperm there?
2 A. Well, that --
3 Q. Or is it semen?
4 A. Semen.
5 Q. Semen. Are you going to get a better reading if
6 there's more semen there?
7 A. Yes. And vaginal secretions can cause a positive
8 reaction. It's typically a much slower reaction. And that
9 may be, you know, what was causing this. It was just not
10 the typical pink color change. So we called it
11 inconclusive.
12 Q. And at P30 you got negative on that, right?
13 A. Right.
14 Q. And you also on this for sperm, it says E again.
15 Is that going to be -- do you know how many that is?
16 A. Two each.
17 Q. Two?
18 A. On our portion of this slide. Portion taken from
19 this slide.
20 Q. And move down to the vaginal opening swabs,
21 2063.16-K?
22 A. Right.
23 Q. And looks like you got positive for AP and
24 positive for P30, right?
25 A. That's right.

45
1 Q. And how many sperm did you have there? You have
2 an E also?
3 A. Seven each.
4 Q. Seven. And the vaginal swabs, let's go down to
5 the next one, 2063.16-M, the vaginal swabs, again you got an
6 AP inconclusive it looks like on that, right?
7 A. That's right.
8 Q. Was that an orange color -- or can it change
9 another color, too?
10 A. I've never seen it another color.
11 Q. Pretty much orange and pink, or nothing, I guess?
12 A. Right.
13 Q. And you got negative also for P30, right?
14 A. Negative for P30.
15 Q. And how many sperm did you find there? You also
16 had an E?
17 A. Three on that slide.
18 Q. Three on that slide. And 2063.16-N, which is the
19 anal swabs?
20 A. Uh-huh.
21 Q. It says you got weak AP?
22 A. Right.
23 Q. Now, what does weak AP mean?
24 A. A slower -- slower reaction.
25 Q. It still turns pink, it just takes a little longer

46
1 to do?
2 A. Right.
3 Q. And how many sperm did you find on that?
4 A. Five on the slide.
5 Q. Now, by finding sperm in there, that doesn't
6 necessarily mean anal sex, does it?
7 A. No.
8 Q. That could potentially mean drainage from the
9 vagina as well?
10 A. Yes, it could.
11 Q. Now, you said that you have looked at the reports
12 from the SANE nurses, right?
13 A. Yes.
14 Q. Did you actually talk to the SANE nurses at all?
15 A. No.
16 Q. Do you know how they collected this -- did the
17 collection of the, say the cervical swabs or the vaginal
18 swabs?
19 A. I, in discussions with the attorneys, were told
20 that there -- they stated that they were internal swabs.
21 Q. Internal swabs. Well, and to do an internal swab,
22 I mean you can't -- do you know anything about this at all,
23 before I ask you these questions, do you know anything about
24 the collection of a rape kit?
25 A. I have a general understanding of how these swabs

47
1 are collected, yes.
2 Q. I mean, you can't really -- I don't want to be
3 crude here, but the vagina is not really like a tube, right?
4 There is no -- there is a potential chance that you can, as
5 the swab is going in, touch the sides of the vagina, touch
6 the openings of the vagina as you're going in, isn't that
7 true?
8 A. Well, they're supposed to use a speculum and take
9 a truly internal swab that would not be touching the vaginal
10 opening as it's inserted.
11 Q. That's what they're supposed to do. Do you know
12 if that's what happened here?
13 A. My understanding is their statement that that was
14 the way it was collected.
15 Q. Now, you said that, if I'm right, you said that
16 there are -- that sperm can sometimes last inside the vagina
17 for five days, the studies you've seen can last for up to
18 five days?
19 A. Yes.
20 Q. And it can be even longer in the cervix, can't it?
21 A. I haven't seen anything to that effect.
22 Q. So you haven't read the words by Sharp, I think
23 it's N. Sharp, who said it can go up to 17 days even, in the
24 cervix?
25 A. I'm not familiar with that.

48
1 Q. But anyway, even in the five days, just the sperm
2 inside the vagina doesn't tell you when sex is, does it?
3 A. No. The numbers typically decrease over time, in
4 a live individual.
5 Q. And that's another thing is the numbers decrease
6 over time, right?
7 A. Due to drainage and dilution, yes.
8 Q. So if you have a woman who has sex hours before a
9 rape exam, say she has consensual sex hours before a rape
10 exam, she doesn't change her underwear, she doesn't shower,
11 you are going to find generally a lot of sperm in there,
12 aren't you?
13 A. I'm sorry, I didn't catch the first part of your
14 question. Can you say that again.
15 Q. All right. A woman who has sex --
16 A. Okay.
17 Q. -- just before hours, let's say three, four hours,
18 before a rape exam, she doesn't shower, she doesn't -- she
19 doesn't change her underwear, you are going to find -- and
20 it's unprotected sex, so I got that right -- you are going
21 to find a lot of sperm in there, aren't you?
22 A. Not necessarily.
23 Q. Not necessarily. Well, you certainly are going to
24 have a positive for P30, right?
25 A. No. It depends on how the sex occurred, if there

49
1 was ejaculation internally or not. I mean, we've seen
2 plenty of instances in case work where there was penetration
3 without ejaculation, we don't find any or many sperm. We
4 don't find P30. It depends on how the sex occurs. I mean,
5 it can be very --
6 Q. But if there is ejaculation, then generally you're
7 going to find a lot of sperm?
8 A. If it's internal, yes. If it's a full ejaculate
9 internal, yes. If it's partial, no. If it's just
10 penetration, few to none.
11 Q. Now, what exactly is P30?
12 A. P30 is a protein that is found, is a prostate --
13 thought to be a prostate specific protein produced by the
14 prostate gland produced in high levels in the seminal fluid.
15 Q. Are these only this males, then?
16 A. There have been a few studies using a very
17 sensitive radioimmunassay test in which that has been found
18 in some fluids of urine of men that have prostate cancer or
19 breast milk from some women, even, but it's a different type
20 of test they are employing than what we are using here.
21 Q. So if, I mean, for your testing it is basically a
22 male -- it comes from the male, P30, for purposes of your
23 testing?
24 A. For the purposes, yes, here.
25 Q. And what is AP?

50
1 A. Acid phosphatase.
2 Q. And what's that?
3 A. It's an enzyme found in -- much higher levels in
4 seminal fluid. It can be -- it is present in lower levels
5 in vaginal fluid. The tests that are used for forensics,
6 generally the vaginal fluids will cause a much slower
7 reaction, so there's a certain time at which you cut off,
8 you know, calling your test result so that you don't confuse
9 vaginal fluids as being a positive.
10 Q. So generally also with your testing, if this is a
11 male, AP is something that comes from the male?
12 A. No, not with AP. We certainly recognize the fact
13 that there can be some AP activity, weak activity, from
14 vaginal fluids.
15 Q. Now, you said that it's your theory that the --
16 make sure I got the right wording on this. It's your theory
17 that based upon the evidence that the victim had sexual
18 relations with another man after the rape, right?
19 A. Um, I never said that she was raped, and I said it
20 was sexual contact after her contact with Mr. Bryant.
21 Q. Sexual -- sexual relations with male number one
22 after the encounter with Mr. Bryant?
23 A. I phrased it as sexual contact, yes.
24 Q. The -- it's your theory?
25 A. It's my opinion.

51
1 Q. It's more of a hypothesis, isn't it, rather than a
2 theory?
3 A. It's an opinion based on examination of this
4 evidence, interpretation of the results. It's based on a
5 lot of scientific findings. So it's my opinion based on the
6 scientific findings.
7 Q. But you didn't -- you didn't do any empirical
8 studies or you didn't take somebody with the same type of
9 underwear, the same body build, and do testing or anything
10 like that, right? This is just based upon your findings?
11 A. And do what with the underwear?
12 Q. Well, did you -- put it this way. Did you do any
13 empirical testing to back your theory?
14 A. We've done some transfer studies on various types
15 of things, some of which includes underwear. But my opinion
16 is not based on one piece of evidence here or one finding
17 here, it's based on a number of findings.
18 Q. And it's a hypothesis, actually?
19 A. Well, it's a hypothesis that is my scientific
20 opinion based on these findings, and my interpretation of
21 them.
22 Q. I understand the terminology, so that's all --
23 A. Okay. Whatever.
24 Q. Now, in your hypothesis you said that the -- the
25 transfer really couldn't have happened, essentially,

52
1 correct? Or highly unlikely? Is that a better way to put
2 it?
3 A. No, I said it couldn't explain the presence of
4 Mr. X's sperm everywhere in the absence of it on other
5 strategic items of evidence. Certainly it could explain a
6 particular item of evidence, the findings on a particular
7 item of evidence taken in isolation, as I mentioned earlier.
8 REDACTED
9 ///
10 ///
11 ///
12 Q. Let me ask you this. Did you -- did you ever see
13 how the victim in this case wore her underwear?
14 A. No.
15 Q. Whether it was tight on her or loose on her?
16 A. No.
17 Q. Did you ever see that?
18 Do you know whether the -- whether the victim was
19 on her menstrual cycle?
20 A. I believe she was not menstruating.
21 Q. But you don't know how far away from her menstrual
22 cycle she was?
23 A. I think it was June 21st was her last cycle.
24 Q. Now, on the yellow underwear, in your report, page
25 4 of 17, it's item number 2063.14-B, about halfway down. It

53
1 says, "In addition to the semen, there are also dilute blood
2 stains visible on this material."
3 Let's first of all talk about the blood on the
4 crotch portion of the yellow panties. Was the crotch
5 portion of the yellow underwear soaked in blood, or were
6 there spots of blood?
7 A. It was very noticeably stained with blood.
8 Q. But it was just spots, right?
9 A. They were large spots. Most of the area was blood
10 stained.
11 Q. And you said it was dilute. Dilute with what?
12 A. I don't know. It looked -- it did not look to be
13 concentrated in any particular area. That's the terminology
14 of observation. There are photos of it.
15 Q. So it could have been sweat, could have been
16 water?
17 A. No, I don't think so.
18 Q. Why don't you think it was sweat?
19 A. It was distributed over too large of an area
20 to have been diluted by sweat.
21 Q. A person, woman can't sweat throughout her whole
22 crotch?
23 A. It's possible. It did appear to be a little
24 heavier in some spots, a little more dilute in other spots.
25 We have very good photos of this, if you would like to see

54
1 them, so.
2 Q. No. That's all right. But this was late June,
3 early July, in Eagle. Do you know what the temperature was
4 during that time?
5 A. I have no idea.
6 Q. So it could have been hot?
7 A. Possibly.
8 Q. I suppose it could have been water that it could
9 have been diluted with, right?
10 A. Could have been.
11 Q. You just don't know, you didn't do any testing?
12 A. I don't know. I know where the areas were blood
13 stained, where the areas were semen stained, and most of
14 those overlapped. There was blood in every area that semen
15 was detected.
16 Q. Now, and you are also making your assumption on
17 the fact that the victim said at one point that she
18 cleaned -- the yellow underwear she had on was clean, right?
19 That's part of your hypothesis?
20 A. No, not really. I mean, I initially I know there
21 was a statement that that pair of underwear was clean. I'm
22 also aware of a statement that the purple pair was clean the
23 day that she put them on, June 30th.
24 Q. You're also -- are you aware of statements where
25 she says, well, I'm not so sure, this could have been just

55
1 left on my floor?
2 A. That's right.
3 REDACTED
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1 ///
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4 Q. Were there also -- the blood was diluted. Was
5 there also these stains of this unknown diluted material in
6 areas where there wasn't blood?
7 A. Okay. I'm not sure what you're asking me.
8 Q. You said -- let me do this step by step.
9 You said that there was blood on the yellow
10 underwear in spots, basically?
11 A. It covered most of the crotch area.
12 Q. And it was -- it was diluted with some unknown
13 substance, right?
14 A. Well, some areas appeared to be uniform, so to me
15 it looked like diluted -- the blood was diluted and it
16 spread out more uniform.
17 Q. Spread out to be more uniform?
18 A. Correct.
19 Q. Was there -- was the areas where it didn't have
20 the blood, was the semen diluted from this unknown substance
21 also?
22 A. I couldn't tell you if the semen was diluted or
23 not. I mean, there was detectible acid phosphatase
24 activity, detectible P30 activity, and large numbers of
25 spermatozoa. So, I mean, it's hard to quantify dilution of

57
1 semen in a pair of underwear.
2 Most of the areas on the crotch of the panties
3 contained visible blood staining, and I believe everywhere
4 that there was AP activity there was also blood staining. I
5 believe there was one place where there -- a few places
6 where there was weak OT activity and no AP activity. But
7 wherever there was semen, there was also detectible -- blood
8 detected by ortho-tolidine. I would have to look at the
9 photos just to refresh my recollection.
10 Q. So wherever there was blood, there was semen?
11 A. Wherever there was semen --
12 Q. Semen, there was blood?
13 A. -- there was blood.
14 Q. Where there was semen, there was blood.
15 A. Right.
16 Q. And -- now you said -- was it you that did the
17 testing as to transfer from clothing to -- transfer of semen
18 from clothing to the body, or was that somebody else?
19 A. There were several sets of experiments, and I was
20 involved in those, yes.
21 Q. Involved in those. How many -- how many pieces of
22 underwear did you test?
23 A. Okay. Well, one set of experiments didn't involve
24 underwear at all.
25 Q. Okay.

58
1 A. Okay. So we're talking about semen-stained
2 underwear and transferred to the body.
3 Q. Yes.
4 A. That involved one experiment, and it was an
5 intentional effort to see if semen could rub off onto a
6 thigh --
7 Q. Did you publish any of those results?
8 A. No, haven't yet. They're probably all going to go
9 in one paper someday.
10 MR. HURLBERT: I have no further questions at this
11 point.
12 MR. HADDON: Nothing further, Your Honor.
13 THE COURT: Thank you. You may step down.
14 MR. HURLBERT: Judge, may I have a moment?
15 THE COURT: Sure.
16 MR. HURLBERT: Thanks, Judge. I guess I want to
17 know if the defense is done.
18 MRS. MACKEY: Waiting for Mr. Haddon.
19 THE COURT: Next witness?
20 MR. HADDON: Your Honor, that's our last witness.
21 We have Mrs. Agent Woods for rebuttal of Dr. Lee.
22 MR. HURLBERT: Judge, given the cross-examination,
23 the People have no witnesses.
24 THE COURT: All right, then. Does that conclude
25 the evidence with regard to the Rape Shield -- excuse me --

59
1 Rape Shield hearings?
2 MRS. MACKEY: Could we have just a moment, Judge?
3 Judge, one suggestion. We do have Agent Yvonne
4 Woods here, she was prepared to testify. The Court has
5 ordered us to give a summary of her anticipated testimony
6 within five days. I would like to request that in lieu of
7 that we just allow her to testify now and have that
8 testimony serve as the summary of her anticipated trial
9 testimony.
10 MR. HURLBERT: Judge, we would prefer the summary
11 of testimony.
12 THE COURT: Well, that's a different procedure.
13 Certainly more convenient, but somewhat unorthodox.
14 MRS. MACKEY: It would save us a lot of time,
15 Judge.
16 THE COURT: Yeah, I understand that. But I will
17 decline your request and require that the summary be
18 provided.
19 And so the answer to my question is that you have
20 no further evidence with regard to Rape Shield?
21 MRS. MACKEY: That's correct, Judge.
22 THE COURT: And the People?
23 MR. HURLBERT: No further evidence, Judge.
24 THE COURT: All right. And we had previously
25 indicated that there would be supplemental closing argument

60
1 on the Rape Shield submitted in writing to accompany the
2 earlier closing time. How much time would you like to have
3 for that?
4 MS. BAKKE: Five working days.
5 MRS. MACKEY: That's fine.
6 THE COURT: Well, let's see. Does that count
7 today or -- okay. 29th.
8 MS. BAKKE: That would be great.
9 THE COURT: Now, the scheduling order indicated
10 other outstanding issues. We've already discussed some of
11 the anticipated proceedings on the 19th. I think that we
12 need to -- I still need to find some information with regard
13 to the jury questionnaire procedure. The administrator was
14 supposed to talk to the printing company with regard to
15 alternatives of either including it -- it would have to be
16 reset in order to modify the juror response itself, which
17 was something that they indicated would be a considerable
18 cost, so we're exploring another alternative with regard to
19 some enclosure of a questionnaire, but of course that would
20 also require the enclosure of the envelope to have the
21 return.
22 So I'm not any better informed at this point as to
23 that possibility. What I might want to do is to establish a
24 conference call with counsel to discuss what the results
25 are, and then try to identify the trial date.

61
1 MR. HURLBERT: Judge, there's no way that -- I
2 mean, we could set a trial date today and have this stuff
3 going on. It really seems like the issues that you're
4 talking about, though important, are very narrow and can be
5 going on while there is a trial date set.
6 As I said yesterday, if we -- it gives us a couple
7 of weeks to decide on this before jury summonses go out, and
8 so -- and if it does end up being that it's just not going
9 to happen, it's just not going to happen. That's fine. The
10 extra jury summons going out is what I mean, the extra
11 questions.
12 But, Judge, the People would prefer a trial date
13 set today. There are a lot of issues that I don't really
14 want to go into right now, but the People feel that given
15 the fact that we have a plea in this case, and I guess it's
16 just the fact that I've been prosecuting for ten years, when
17 there's a plea out there and there's no trial date set, it
18 really gives me -- sends shivers up and down my spine. And
19 maybe that's a lot of it.
20 But, Judge, we would really like to leave here
21 today with a trial date, and I don't really see why these
22 issues with the jury questionnaire can't be going on while
23 our date is set.
24 THE COURT: Not knowing what your other concerns
25 are, you know as well as I do that this Court regularly and

62
1 consistently has been able to set matters for trial within
2 two to three months based upon not only the criminal but
3 civil case management. I'm not worried about us being able
4 to get a trial date well within the speedy trial time.
5 MR. HURLBERT: And I do understand that, and it is
6 true, Judge, it has been my experience that you have set
7 things within two or three months. Of course it's also been
8 my experience that we almost always have a trial date set at
9 the entry of plea. So -- and --
10 THE COURT: Well, that gets us back into why we
11 went forward with the entry of plea.
12 MR. HURLBERT: Judge, all I'm asking for is a
13 trial date set today. That's really what I'm asking for.
14 THE COURT: Well, I've already indicated that I'm
15 not going to do that until such time as I have sufficient
16 information to know exactly what sort of time frame we need
17 to accomplish the questionnaire process and determine
18 whether or not I'm going to go forward with the preliminary
19 questionnaire. Then I will know exactly what the time frame
20 is.
21 Now, if -- yesterday it was indicated that both
22 sides had concerns with regard to out-of-state witnesses and
23 scheduling, and I understand that. That, however, just
24 means that you want me to give you a sufficient amount of
25 time to be able to accomplish the execution of those

63
1 out-of-state witness subpoenas. And if you tell me how much
2 time you want, then I will wage that accordingly and set the
3 trial.
4 MR. HURLBERT: What we're looking at, Judge, is an
5 August trial date, and the defense says they need two months
6 to get out-of-state subpoenas. If we are looking at August
7 30th we are talking about setting a trial date by June 30th.
8 THE COURT: I agree with your calendar
9 calculation. That's what we're looking at. I'm hoping that
10 I would have a sufficient amount of information to be able
11 to do that.
12 MR. HURLBERT: And so what sort of time frame are
13 we looking at, Judge?
14 THE COURT: Well, that's what I was getting to in
15 terms of setting a conference call where we can do that.
16 I mean, this case is going to get set when I say
17 it's getting set. I mean, we're not going to have a problem
18 working into the calendar here, and unfortunately everybody
19 knows that the other matters that are set in this courtroom
20 and the other courtroom will be affected by the dates.
21 But it's not likely to have to worry about that.
22 It gets set to commence the last week in August, the first
23 week in September. Why don't you tell me, I mean, you keep
24 saying an August trial date. You've been saying that for a
25 long time. Is there something important enough that I need

64
1 to know about it that distinguishes an August trial date
2 from a September trial date, other than your desire.
3 Because we have speedy trial November 11th, and I'm not
4 talking about an October trial date. I'm just trying to
5 narrow in.
6 You know, you've said it before, you've said it
7 today, you want an August trial date. That's pretty unusual
8 for anybody to make a specific request to the Court as to
9 when we want the trial date.
10 MR. HURLBERT: And I understand that.
11 THE COURT: And I want to take into consideration
12 any important factors that you have that are relevant to the
13 Court, as well as relevant to you or Mr. Bryant's attorneys.
14 MR. HURLBERT: Well, Judge, I mean, first of all
15 you did ask at one point, so --
16 THE COURT: Yeah, but --
17 MR. HURLBERT: So I don't want to be thinking that
18 I'm trying to force --
19 THE COURT: I asked yesterday and I took what you
20 had to say to heart. Today you're much more emphatic about
21 you want me to set it today, and you want an August trial
22 date, and I'm just trying to find out what that's based
23 upon, other than just some desire.
24 MR. HURLBERT: Here are two of the reasons, Judge.
25 Unfortunately, unlike the defense, we have a very limited,

65
1 limited budget. And the longer this drags on the harder it
2 is to -- to make those -- make that budget meet. The budget
3 is something that especially with what we are dealing with
4 is taxpayer money, so I don't want to be overspending
5 taxpayer money.
6 The second thing is we would like a definite trial
7 date as soon as possible, because Mr. Crittenden and myself
8 and Ms. Bakke and Ms. Easter are going to basically have to
9 clear our plates 100 percent, and so we are looking at what
10 we need to get -- we are looking at how long we need to do
11 it and when we need to start doing it. And so that's why we
12 are asking for a trial date right away.
13 I guess as soon as possible. I apologize for
14 right away.
15 THE COURT: I have those same stress factors
16 involved, budget and personal, professional calendar. I'm
17 not going to address that in a comparative fashion to anyone
18 else because I believe that everyone is -- and including
19 Mr. Bryant, his attorneys, are experiencing the same.
20 MR. CLUNE: Judge, can I address the Court on that
21 issue?
22 THE COURT: Sure, Mr. Clune.
23 MR. CLUNE: Judge, and I don't know to the extent
24 that the prosecution is aware of this, but in regards to
25 your question about a need for an August trial date, I can

66
1 tell the Court that from speaking with the victim in this
2 case, when this case is over, the things that she wants most
3 is to be able to enroll in school again. When we had the
4 proposed trial date of August 16th, that seemed like a
5 realistic possibility for this semester. We're talking now
6 about August 30th. I don't know if even August 30th keeps
7 that open as a realistic possibility.
8 But not to trump anybody else's rights or the
9 procedure that's required through this court, but that was
10 one of the considerations that the victim was concerned
11 about in regards to the scheduling of a trial date.
12 THE COURT: I know, as I've stated just a few
13 minutes ago, that this case has put a significant amount of
14 change if not stress on everyone involved, personally and
15 professionally, and with their lives. I have up to a week
16 ago endeavored to maintain my full case load and all the
17 matters that were pending on it, which is around 240 cases.
18 I know that Mr. Hurlbert has had homicide
19 prosecutions and I had a murder trial in Clear Creek in
20 April, and I know that the defense team has been working
21 extensively on this, and I assume that it's not the only
22 case.
23 I know that we've had months -- well, days and
24 days of hearings over months and months, and that the burden
25 is now on the Court with regard to several of those rulings

67
1 on those hearings.
2 I also know that, as I calculated yesterday and
3 did not go into when we were discussing the trial, that
4 since the victim's initial request for setting the matter
5 for trial, the People have filed 41 motions, responses,
6 replies, or briefs. The defense has filed 46 motions,
7 responses, replies, or briefs. The other interested
8 parties, including the media, have filed 11.
9 I have found myself in a situation, as I
10 indicated, one, where I cannot any longer handle the
11 remainder of any of the rest of my docket and have sought
12 assistance for that.
13 Two, while I have been attempting to concentrate
14 on the substantial outstanding issues, one of which we just
15 completed the evidentiary portion today, I have had to
16 address a number of matters that have been raised in those
17 motions, responses, replies, and briefs. One of those
18 examples, of course, was the show cause. And I'm not
19 pointing fingers at anybody, but I had to spend a
20 substantial amount of time on that and other issues.
21 Now I'm indicating that for a variety of reasons,
22 including the determination with regard to the
23 questionnaire, I'm not prepared to specifically set a trial
24 date, even though I've given you what any reasonable person
25 would understand to be very limited parameters within which

68
1 I'm focusing on possible trial dates.
2 I don't see that me identifying it today is any
3 less productive than identifying it within the next week to
4 ten days. And because of those things that I've just said,
5 without repeating them ad nauseam, I don't intend to set a
6 specific date today.
7 I know that everyone has schedules that they need
8 to meet, and I know that I have those responsibilities that
9 I've already identified. But I don't see that setting it
10 today will do that.
11 And I also have no desire to feed the beast that's
12 outside the door that insists on knowing a trial date at
13 this point in time. I will be happy to set a time when we
14 can have a conference call, and I can advise you of the
15 specifics with regard to the juror questionnaire, and we can
16 discuss the time frames and other issues and identify a
17 trial date.
18 I had asked previously, and I indicated at that
19 time and I will say again, that I don't want to be
20 presumptive enough to believe that this case is totally
21 different than any other case, and we are proceeding outside
22 the presence of the public.
23 Are there or have there been any discussions with
24 regard to disposition of this case? Because when I set the
25 trial date and we engage in that process, there's a

69
1 substantial cost that the state incurs also, and I always
2 ask that question.
3 MR. HURLBERT: Judge, there has been brief
4 discussions, and it appears that the sides are very far
5 apart in this case, and I don't see a plea at this time.
6 THE COURT: Well, the key phrase was "at this
7 time."
8 MR. HURLBERT: Or the foreseeable future, I guess,
9 Judge.
10 THE COURT: And you know my policy. If we set
11 this for trial, it's over as far as plea negotiations, and
12 I'm not suggesting that you need to enter into any further,
13 but I am indicating that if you have any consideration of
14 it, that I can give you an appropriate amount of time before
15 we identify the trial date.
16 MS. BAKKE: Judge, I think that the rulings that
17 are pending certainly change the status of the case for
18 either side.
19 THE COURT: I hear that all the time. I've even
20 had an argument that it's a chilling effect, and I don't buy
21 it. I understand what you're saying. I know you're very
22 experienced, and I'm only in this entering my 30th year, but
23 my policies are ones which I believe to be appropriate.
24 You know, we are where we are in this case, and
25 I'll take some responsibility for that, and I'm not going to

70
1 relieve any of you for some of that also.
2 MS. BAKKE: Judge, my only point was that if in
3 fact you were to rule that all of the Rape Shield evidence
4 were going to come in in this case, I'm thinking the
5 prosecution is going to sit down and reevaluate the quality
6 of its case and its chances of a successful prosecution.
7 I wasn't trying to lay any blame on the Court, I'm
8 just saying that ruling, the ruling on the mental health
9 issues and the suppression of the defendant's statements,
10 make a significant change in the case, meaning the parties
11 may have more or less willingness to negotiate based on
12 that.
13 THE COURT: That's true. And if we set it for
14 trial, it's over. The cutoff is set, so. I don't want to
15 get into an analysis of the importance of that evidence,
16 although I'm no different than you, I know the impact and
17 potential consequences with regard to suppression versus
18 that of the rulings on Rape Shield, and I have not factored
19 in those effects.
20 I think when you analyze the case you have to
21 consider various alternatives, and when you analyze the case
22 you have to consider the possible outcome of trial, and that
23 is really in light of all of the evidence that you are aware
24 of, which is even greater than what I am aware of, what you
25 should look to and rely upon in terms of what your

71
1 evaluation of what your alternatives are.
2 In light of Mr. Hurlbert's request and in light of
3 the timing and what I just said with having to deal with --
4 I don't mean this lightly, I mean it absolutely
5 realistically, every time motions are filed I have to figure
6 out whether to give them the priority or whether to continue
7 working on those other issues, and to the detriment of the
8 process of getting decisions out on the major issues, I've
9 had to address other matters recently.
10 There's one of me with a half-time legal research
11 attorney. And I know it sounds like whining, I'm just
12 saying that's just the way it is, and yesterday I talked
13 about that a little bit, we had five attorneys here on the
14 prosecution's side, we've got three up front today on the
15 defense, two in the back. You guys can produce paper faster
16 than I can read it. Or even paperless. So I'm doing the
17 best I can. And when I have that balanced against
18 Mr. Hurlbert's legitimate request for knowing the trial date
19 as soon as possible, I just have to do what I can.
20 So in light of all of that, how important is it
21 that I give you a trial date today? Is it still your number
22 one priority, Mr. Hurlbert?
23 MR. HURLBERT: It is, Judge.
24 THE COURT: Does the defense have any position on
25 that, other than previously stated?

72
1 MR. HADDON: We don't. We'll be ready to go
2 whenever the Court thinks that it's time to go, and I think
3 it's really up to Your Honor in terms of making that
4 determination. So we've indicated we'll be ready to go
5 whenever.
6 MR. HURLBERT: Judge?
7 THE COURT: I'm still here.
8 MR. HURLBERT: Judge, actually after talking with
9 Mr. Clune, if we could get a trial setting date within the
10 next week, then I suppose I'll withdraw my request for a
11 trial date today.
12 THE COURT: How about June 30th? I just hate to
13 set it for Friday the 25th and then not have enough
14 information to go forward. So the 30th kind of fits with
15 everybody's time frames.
16 MRS. MACKEY: That's fine with the defense, Judge.
17 THE COURT: Is our traditional 12 o'clock as good
18 as anything?
19 MR. HADDON: That's fine with us.
20 THE COURT: Wednesday.
21 MR. HURLBERT: That's fine, Judge. Wednesday is
22 fine.
23 THE COURT: Okay. Thank you.
24 MRS. MACKEY: Would you like me to set that up,
25 Judge?

73
1 THE COURT: Please.
2 Are there any other issues that we need to address
3 at this time?
4 MR. HADDON: We have none.
5 MR. HURLBERT: None from the People.
6 THE COURT: And let me advise you that I -- I
7 believe that the issue of a trial setting is one that is
8 primarily of importance to those of us who are participating
9 in the process. I think it would be inappropriate for any
10 of you to communicate to the media in any way any expected
11 or anticipated date at this time.
12 Because I respect the importance to you, and
13 ultimately it certainly is a matter of public information.
14 But in the meantime I think it would be nothing but
15 speculation, and inappropriate speculation, as to what might
16 actually be the setting.
17 MR. HURLBERT: That's fine, Judge. Just for
18 clarification, does that include the fact that there is a
19 trial setting conference on June 30th? If it does, it does.
20 I'm just --
21 THE COURT: I know you want to say something to
22 them, you have to say something when you go out there, if
23 you want to. There's a status conference June 30th. It's
24 not a trial setting conference for public information
25 purposes.

74
1 MR. HURLBERT: Thank you, Judge. Thanks for the
2 clarification.
3 (This matter concluded at 11:10 a.m.)
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5 REPORTER'S CERTIFICATE
6 I hereby certify that the above and foregoing
7 redacted transcript, containing 74 pages, is a true and
8 complete transcription of my stenotype notes taken in my
9 capacity as Official Reporter of District Court, Eagle
10 County, Colorado, at the time and place above set forth.
11 Any copies of the within transcript not containing
12 an original certification page or not obtained from the
13 undersigned reporter or through RealLegal are not certified
14 for accuracy, including any transcripts posted on any
15 internet site, as they are made outside of this reporter's
16 knowledge and control and subject to manipulation.
17 Dated at Adams County, Colorado, this 2nd day of
18 August 2004.
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20
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22 ______________________________
Michelle L. Goodbee, RMR CRR
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