It occurs to me Wednesday morning that someone has devised perhaps the perfect purgatory for O.J. Simpson. The defense and the plaintiffs have still failed to agree on which portions of Dr. Henry Lee’s videotaped testimony can be shown to the jury, so Judge Fujisaki spends more than an hour going through the transcript, reading page and line numbers and announcing whether the plaintiffs’ objection to the section in question is sustained or overrruled. By mere description and compression, I’m making it sound more exciting than it is. If this process went on, say, indefinitely, it could wring a confession from the innocent as skillfully as anything used by the Spanish Inquisition.
The days of O.J. are growing shorter, and the arguments are growing more numerous and less civil in this civil trial. Petrocelli asks the judge to preclude the defense from eliciting testimony alleging that Nicole used drugs. Baker, who previewed his bash-the-victim strategy in his opening statement, says the issue illuminates what the defense believes was her “erratic behavior” in the last three months of her life. Fujisaki, who starts many sessions chewing on a lozenge, and whose alertness seems to diminish as the lozenge does, rules against the defendants. Drug use will not come in; “it’s irrelevant, really.”
That essentially defeats the purpose of recalling Kato Kaelin as a defense witness, but he’s here, and he’s fun, and he’s a blonde again. Baker treats him with almost as much contempt as Marcia Clark showed him, making an expansive gesture to illustrate the passage of two-and-a-half years, as if the witness could not, without visual aids, quite comprehend such a sizable quantity of time. He asks, second question in: “You’ve made a career out of this case, haven’t you?”–to which Kato reasonably replies, “No.” He could just as reasonably continue: You call this a career?
Lacking the drug angle, previewed as Kato’s lovely parting gift to O.J., Baker tries, as usual, to get the witness to argue with the police. In the interview Kaelin gave to detectives Tippin and Carr, Baker says, “you indicated that O.J. told you that he never had problems with Nicole.”
“I don’t recollect that.”
“You don’t have any reason to disbelieve that if it’s in their report, do you?”
“Correct.”
Shortly after, Baker attempts to push the witness into a corner–Kato’s Korner?–regarding an important point: what the defendant was wearing the night of the murders.
“Was it your understanding that, when you told Detective Tippin that O.J. was wearing a dark sweat suit, that he was wearing it when he entered the limo to go to the airport?”
“Yes. I always thought he was wearing a dark suit–sweat suit. … I always had that in my mind’s eye.”
We will revisit this issue, but Kato is on the record, even though neither Allan Park nor any of the airplane witnesses recall Simpson wearing a dark sweat suit that night.
Baker also uses Kato to put a few dings in the timeline. Kaelin was on the phone with a female friend in San Diego, Rachel Ferrarra, when he heard the three thumps heard described around the world. She has testified, in the criminal trial, that 10 minutes before Kato reported the noises, the two of them had discussed that it was 10:30. Obviously, they didn’t have that much to talk about. Kato doesn’t recall that they talked about the time, and when Baker asks the “any reason to disbelieve her” question, Kato quickly shoots back:
“I don’t know if she had a clock.”
“I didn’t ask you if you knew she had a clock,” Baker seethes, “I asked you if you had any reason to disbelieve her.”
“No,” Kaelin concedes.
Finally, when all else fails, utter the magic words “Mark Fuhrman.”
“If Detective Fuhrman testified in the criminal trial that he inspected your bathroom, would you agree that he did that?”
“I didn’t see that.”
Part of the defense planting-theory now is that Fuhrman opened that bathroom window and dropped the glove down and to the side, so that it landed under the air conditioner of the next room over. It came, as Joe Cocker predicted, through the bathroom window. Not surprisingly, the plaintiffs have no questions. We have, it appears, seen the last of Kato Kaelin, at least outside the confines of Laughlin, Nev.
After Sgt. Stephen Merrin reiterates the story of the mystery caller inquiring about the double murder in West Los Angeles, even though he was watch commander at the Wilshire Station (which doesn’t handle Brentwood), it’s time for the return of Dennis Fung. Bob Baker wants to know what, besides the O.J.-reference blood vial, was contained in the trash bag Fung hauled out of Rockingham around 5:30 the afternoon of the 13th. That evokes an objection that this material has been already covered, leading Fujisaki to mutter, in his weary, creaky tenor, “This has been a long trial, I can’t remember every word.” Baker knows that this is the judge’s last case before retirement, and he knows what button might be the hot one:
“This objection will take longer than the testimony, your honor.”
“I imagine so,” the judge sighs. The plaintiffs take the hint; the objection is withdrawn.
“Did you have trash in there?” Baker resumes.
“There may have been crime-scene labels in there, but trash–no,” Fung says.
“You didn’t carry around a trash bag to carry around sterile samples of blood, did you?”
“The trash bag was used as a carrying device, not as a trash bag.”
When Baker asks whether Fung went up to O.J.’s bedroom at 4:45 that afternoon to collect the incriminating, blood-stained socks, the criminalist opens a door the size of Dodger Stadium. “The times in that report are ballpark figures.”
“Oh,” Baker near-sneers. “What’s the purpose of putting down the time on this report if these are ballpark figures?”
Fung says it’s a column he rarely fills in on the crime-scene sheet unless the action in question occurs outside the “perimeter of when I got there and left. Miss Mazzola decided to fill in those times.”
“The times down on the sheets you and Miss Mazzola filled out are the times you accomplished certain tasks?”
“Pretty close.”
“You wouldn’t be off by 20 minutes, would you?”
“I’d say it would be within 10 minutes, one way or another.”
“Are you trying to tailor your testimony relative to the collection of the socks, Mr. Fung?”
“No.”
But, as we all know by now, Fung rattles more easily than teacups in a bumper car. When Baker shows the criminalist videotape of himself with a paper bag traipsing through the Bundy crime scene, and asks whether that’s him taking the Rockingham glove to show Detective Lange pursuant to his orders (something Lange has denied), Fung stares at the screen and murmurs, “It might have been, I don’t know.”
Baker gets Fung to admit that “I did not detect any” soil or debris or blood on the socks, even though, as a criminalist, he wanted to be, in the attorney’s words, “extremely vigilant.” Fung does offer the explanation that he collected the socks so that a complete examination could be done later, and that he never held them closer than arm’s length from his eyes. But he doesn’t recall how he picked up the socks, whether with gloves or by using “the scoop method,” i.e., using a scoop.
Whatever else you say about the uncharismatic criminalist, he is one of the few persons on the public stage to attempt to wear the masks of comedy and tragedy simultaneously. That accounts, perhaps, for the muffled quality of his speech. He makes headlines in this case once more when Baker confronts him with a photograph of the Bundy glove and a piece of evidence which purports to be the Bundy glove. “I did note,” Fung says, “when I got back to the lab that there were some cuts on [the gloves].”
“How many cuts were there on the Bundy glove?”
“I didn’t make note of that.”
“Do you see a cut on the top portion of the fourth finger?”
“Mmm … not really. That was a–yes, I do see that.”
Petrocelli would have kissed Fung on the lips had he only managed to finish his uncompleted sentence. Instead, it’s another ride into One Criminalist’s Hell:
“That cut doesn’t go all the way through the lining, does it, Mr. Fung?”
“Actually, from what I recall, there was a piece of rock or something stuck in the glove, like something was hit hard, maybe a piece of concrete or a stucco wall, and something was embedded into the finger.”
“What happened to the rock?”
“It was with the glove when I booked it.”
“Does it look like a rock in this picture, or does it look like a cut?”
Fung stares at the photograph of the purported Bundy glove on the TV screen, and then:
“There’s a damaged area on the finger. This area could be the rock I remember.”
“You couldn’t see that damaged area because a rock was on top?”
“I’m saying the rock is embedded in the damaged area.”
But, after a moment during which Baker asks him whether he could see the light-colored lining of the glove (lining which turns out, in fact, not to be light-colored), Fung backtracks. “I’m sorry, looking at the photograph more closely, it was in the knuckle area, not the fourth finger, that the rock was in. I was mistaken.” A moment later, he’s not even sure whether the rock was on the left (Bundy) or right (Rockingham) glove. Fung has now ripened sufficiently for Baker to pick him. The attorney places a glove, purportedly the Bundy glove, before the criminalist. “Where’s the damaged area, Mr. Fung? Do you see any damage at all?”
“I do not.”
“Are there some markings down here pointing to some stains on the glove?”
“You know, I’m not sure that this is the same glove.”
“Well, I’m pretty sure it isn’t, aren’t you? I mean, there’s no damaged area on the ring finger of that glove, is there?”
“No, there is no damage on this.”
“If this is the Bundy glove, you’d agree there’s no damage.”
“If this is the Bundy glove.”
Maybe you can’t entirely blame Dennis Fung. After spending eight days on the stand being barbecued on national TV by Barry Scheck, you or I might be paranoid about traps lurking for us in the inquisitorial underbrush, and we might overcompensate, too. But that’s just one of the many reasons why I didn’t become a criminalist; you, I don’t know about.
On cross, Tom Lambert runs a search-and-rescue operation through the foothills of Fung’s mind. He elicits the testimony that it’s not uncommon for criminalists to use trash bags to transport evidence, a point we may see in Jonathan Winters’ next Hefty commercials. He gets Fung to say that, once the gloves were collected, he didn’t see them again until the trial. “I collect them so they can be analyzed at a later date.”
But, all too soon, here’s Baker again. “I want you to explain to this jury how the stone and hole disappeared.”
“I can’t.”
“What other items of evidence, Mr. Fung, did you remove from the trash bag, besides Mr. Simpson’s reference sample? Tell this jury.”
“I can speculate.”
“You have been.”
Tom Lambert objects. “Move to strike.”
We have not seen the last of Dennis Fung.
OJ by the sea.
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