OJ by the sea.

O.J. by the Sea

O.J. by the Sea

Notes from different corners of the world.
Jan. 31 1997 3:30 AM

O.J. by the Sea

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       Experiencing Dennis Fung's third and final attempt at testimony in this trial is like watching a hostage video. Fung is the guy who was kidnapped while strolling around Beirut because he heard they make good falafel there. He ends up recording a grainy tape denouncing every U.S. foreign-policy action since Korea out of fear he'll be held in captivity till the falafel stands freeze over. Yes, it's that bad.
       And here's the worst part: It's not because he's dumb. Fung's travail is, in a way, like the problem of O.J. Simpson himself: a guy who's kinda smart, who thinks--when faced with a problem on the witness stand--that he can actually outsmart the opposing attorney. A week earlier, suddenly having changed subjects, Bob Baker showed him a photo of the Bundy glove with a piece of debris on it. Fung smelled a trap, and thought he'd outsmart Baker by raising the possibility that what he beheld wasn't the Bundy glove. So he's here today to recant, and Tom Lambert will hold his hand.
       "After you testified last week, did you have the opportunity to study other photographs of the Bundy glove?"
       "Yes, I was." That's what the man says.
       "Do you now believe the glove had a cut or a tear?"
       "No."
       "Were you mistaken?"
       "Yes."
       "Having looked at these other photographs, is there any doubt in your mind that it's the same glove?"
       "It is the same glove."
       They might as well have attached strings to his arms and mouth. Li'l Penny from the Nike commercials is less wooden.
       Bob Baker assumes his softest voice. He sympathizes with poor Dennis. "You find yourself in a bad spot, don't you?"
       "Yes."
       "On January 8, you didn't lie to this jury, did you?"
       "I didn't lie, but I was mistaken."
       Baker follows with a series of questions that hit a wall of objections. Finally, his frustration erupts. "Judge, I think I'll probably ask the questions I want to ask."
       "Then," says Hiroshi Fujisaki sternly, "I'll strike them."
       Baker turns back to Fung. "You've seen the Bundy glove at the criminal trial?"
       "Only to identify it."
       "And you identified it at the preliminary hearing?"
       "Yes."
       "As a matter of fact, you've had this glove in front of you on numerous occasions, haven't you?"
       "Actually"--uh-oh--"I'm not sure if it's the Bundy glove I identified before. It may have been the other glove." Like a basketball player suddenly one step behind the flow of the game, this guy is thinking again, and that's trouble.
       Lambert tries to get back on script. "Did you try to mislead this jury?"
       "No."
       "Did you make a mistake?"
       "Yes."
       Baker can't resist. "How many mistakes did you make, Mr. Fung?"
       "One that I know of." Barry Scheck has shown how much fun it is to ask questions that end with a sarcastic rendering of the criminalist's name, and Bob Baker likes his fun.
       "Did you make a mistake when you testified that all the swatches from the Bundy blood drops were dry, Mr. Fung?"
       "They appeared dry to me when I put them in paper bindles."
       Fung walks out of court ramrod straight, striding briskly into the obscurity he must dearly desire. He may even think he did well today.
       He's followed by several expert witnesses called to rebut defense challenges to one or another piece of physical evidence. Richard Fox, a criminalist who formerly headed the Ventura County crime lab and is now a private consultant, takes the stand to blunt the testimony of Herbert MacDonnell that the "little red balls" he spotted on "Wall 3" of one of the socks proves that the blood on that sock was planted.
       Fox tells Ed Medvene that there are innocent explanations for the little red balls--the bloody hands of someone who touched Wall 3, a wet transfer from bloody clothing, a perspiring perpetrator (if you call these explanations innocent). He also conducted an experiment showing that, just by making another cutting from the bloodstained area of Walls 1 and 2, like the original cutting made by criminalists, little red balls--"rounded, spherical, polished blood flakes"--appeared on Wall 3. It was, Fox suggests, nothing more than gravity working its magic.
       Baker opens with the semantic defense. "You did not mention the word 'probability' one time in your testimony this afternoon; is that correct?"
       "That's probably true, yes."
       "Thank you. That's the first time. Would you agree it's absolutely true?"
       "I don't know what 'absolutely' is."
       Baker gets Fox to admit he has no information confirming that any of the possible innocent scenarios ever occurred, then it's straight into Monty Python country.
       "That drop dried obviously in a spherical configuration during the time that it dried, true?"
       "Well it's not a drop; it's a--"
       "Well, it's a drop--"
       "It's not a drop. Let me finish. It's a small, microscopic crust. And it did dry in a spherical manner."
       "The importance of that is that the drop was not like you have testified here in the courtroom this afternoon; it wasn't a flake, correct?"
       "That's correct."
       There's actually a point here. Baker's witness MacDonnell testified the red ball he examined under a microscope was a drop, bonded to the sock fabric, which could only have happened if it came in contact with Wall 3 while it was still liquid. Fox says it's a piece of dried blood that flaked off, perhaps while being reliquified with sweat or testing liquid, and a microscope can't tell you whether it's actually bonded or just appears intertwined on the surface. Drop or flake--the jurors will decide.
       The final day of rebuttal begins with another unlikely cop, an attractive young woman in a black suit with long reddish-brown hair, Angelica Guzman. Guzman has come to rebut the defense's suggestion that the impound report on the Bronco, filled out before the car was towed away from Rockingham, said the car had a battery and alternator, proving the cops opened the vehicle. Guzman filled out the report.
       "Did you," Medvene asks haltingly, "observe a battery before you put a cross there [on the form]?"
       "No," Guzman answers.
       "Did you observe a generator or alternator before you put an X in the 'yes' column?"
       "No."
       "Why did you signify 'yes'?"
       "I put a 'yes' down because the vehicle appeared driveable ... It had no damage, it had four wheels, it had no debris--that's why I thought it was operable."
       She never opened the hood, trunk, or doors of the Bronco, Guzman testified. She made an assumption.
       "Is that the way they taught you to do it at the Police Academy?" Dan Leonard cross-examines.
       "No, sir."
       "You made a mistake?"
       "Yes, sir."
       "You weren't as careful as you should have been?"
       "That's correct."
       Guzman enters the courtroom as a potential Fox cop fox. She leaves as a candidate, along with Dennis Fung, for compulsory re-education camp.
       Dr. Terry Lee is a chemist and research scientist at the City of Hope, a medical center an hour east of Los Angeles. This is the first time he's testified in a trial. In the hands of an opposing attorney, that fact can help brand you as a non-expert. But what Lambert's telling us is that Dr. Lee--this would be the Other Dr. Lee, to distinguish him from Henry--is not a professional witness. That's a good thing, until the next time the plaintiffs present an expert who's testified dozens of times. Then that's a good thing.
       We know that Mark Fuhrman couldn't make this particular gig. But neither could FBI agent Roger Martz, who had performed tests for the criminal prosecution. His tests, he concluded, proved that the blood on the back gate and the blood on the socks did not contain telltale EDTA. They would have had to contain the chemical if those blood drops been planted, since the purple-topped tubes containing the reference-blood samples are dosed with EDTA to prevent clotting. Agent Martz's absence is noted with some interest by Bob Baker, who has, during the defense case, presented an expert to dispute Martz's conclusion. Dr. Fredric Rieders said Martz's tests, which found trace indications of EDTA in the evidence samples and, later, in blood Martz took from his own arm (ouch), was consistent with the blood evidence having been planted.
       The job of the Other Dr. Lee is to dispute that conclusion. He's run the tests Martz ran "hundreds of times." His opinion: The evidence blood couldn't have come from the purple-topped tubes. Dr. Rieders had said the low, very low, levels of EDTA Martz found merely proved that the chemical had degraded since the socks were first discovered. The Other Dr. Lee says EDTA is "a very stable compound." He says the trace results happened because of "carry-over" from a previous experiment on the test instrument, a common problem. I know it bedevils me when I do EDTA testing.
       But Bob Baker smells an X-Files in reverse, in the absence of Agent Martz. "The answers are in there," he seems to suggest.
       "Did you," he asks Lee, "ever attempt to contact Agent Martz?"
       "I was told I could not."
       "Was that because the FBI didn't want to get involved?"
       "Yes."
       "Are you aware that two FBI agents already testified in this case?"
       "No."
       Within days of this dialogue, the FBI removes Martz from his position, in what can be read either as a transfer or a demotion.
       Lee did no testing himself. Of course, neither did Rieders. They're both interpreting the absentee's tea leaves. Martz's test did not "accurately quantify the level of EDTA," Lee admits.
       "You're using quantities, where Mr. Martz attempted not to quantify anything?"
       "That's a matter of semantics."
       "Answer the question, sir."
       "I can tell you he could draw no conclusions unless he had some idea of the quantities present."
       On the chart of Martz's test, the EDTA level of the samples is called by the plaintiffs "the molehill." The level from a known purple-topped-tube control sample is called "the mountain." Baker is suggesting, in effect, that you had to count each speck of dirt to know the difference.
       But this Martz--where is he? "You would obviously love to talk to Roger Martz, wouldn't you?" Baker needles Lee.
       "It would be a very interesting conversation."
       "Mr. Lambert told you not to talk to him, didn't he?"
       "He told me that Roger Martz was unavailable."
       "Are you aware that Roger Martz threw away all copies of data relative to the test he conducted on his own blood?" Uh-oh. Sinister.
       "My understanding is that he threw away all copies of data relative to all the blood." Whew. Just another klutz.
       Martz didn't come up with "carry-over." He explained the "molehill" result on his own blood by hypothesizing that everyone has a little EDTA in his or her blood. Since the criminal trial, two tests have been devised, Lee concedes, that prove there is no detectable EDTA in human blood. Baker suggests that Lee concocted "carry-over" to fill the void. Lee says there is "evidence in the data to support it."
       "Does Dr. Rieders' opinion account for all the test results?" Lambert asks, in a brief redirect. "No." "Do yours?" "I believe so."
       Clinical molecular geneticist Bradley Popovich, and returning experts Gerald Richards and Bill Bodziak, are the final three witnesses in the Simpson civil trial. It's one of the few nice days in a generally rainy January. Bob Baker is absent for part of the afternoon; O.J. skips the whole thing.
       Dr. Popovich, among other duties, helps write the proficiency tests for the labs that do DNA testing. He also runs his own DNA laboratory in Oregon, a medical diagnostic facility. He's got dark brown hair parted in the middle and a small moustache. Think youngish assistant basketball coach. And--a nugget Lambert extracts--Popovich has recently reviewed DNA evidence in another case, helping bring it to a "successful conclusion." The lawyer who employed him was Barry Scheck.
       In this case, Popovich spent 300 hours reviewing the documentation of the DNA tests, traveling to the labs, assessing personnel qualifications--and he has come to say an unequivocal sentence or two:
       "My opinion is that there's absolutely no evidence of any contamination whatsoever."
       And what about defense DNA expert Dr. John Gerdes' suggestion that Collin Yamauchi, at the LAPD crime lab, introduced contamination into the samples? "Absolutely ridiculous."
       "The work Collin did was reliable; there's no reason not to trust it; it's very good data. I see no reason not to trust the reliability of this evidence."
       And Popovich repeats the point that degradation doesn't make one person's DNA--the real killer's, say--change into another person's--a former football player's, perhaps. The prosecution had this witness available--they paid him, we learn, $30,000--but he was never called to testify in that case. As a taxpayer of Los Angeles County, at this point, I wonder why I didn't get my $30,000 worth. Phil Baker gives immediate voice to the impact of Popovich's testimony: "You're the cleanup hitter." But this performance was no surprise to Baker. Earlier in the day, he had told a TV newswoman seated behind me, "Popovich is going to have me for breakfast." His plan, apparently, is to try on some of his dad's patented sarcasm for size.
       "So everything's hunky-dory with this evidence?"
       "I don't know what you mean by 'hunky-dory.' "
       "You've never heard 'hunky-dory'?"
       "I've heard it, I wouldn't use it."
       Popovich didn't see Andrea Mazzola's how-not-to-collect-evidence video, but he's read the trial transcripts that spotlight her slapstick potential. And, challenged to distinguish between the innocent explanation of spurious, trace-DNA results and the contamination theory, he says, "It comes down to probability versus possibility." This may even be lunch.
       That sense, combined with the sudden exodus of reporters beepered to the scene of the Ennis Cosby murder, prompts a reporter next to me, hard-wired to the Simpson beat, to observe a hissing sound--"the air going out of this story." Phil Baker's final flourishes are four questions. Each query triggers an objection, and each objection is sustained.
       Richards, the FBI photo analyst, returns. His bifurcated testimony is due to the defense's insistence on first deposing him about the new E.J. Flammer Jr. photos before he's allowed to authenticate them in court. They did, and now he does. He could find "no discernible evidence of alteration or substitution on any of the photographs involving Mr. Simpson." Thirty shoe photos, no phonies.
       "Do you agree," Leonard asks on cross, "that someone motivated enough, who has access to the latest technology, can create a fake that can't be detected?"
       Richards doesn't hesitate. "Given enough money, time, equipment, and talent--and you need all four--it could be possible."
       Leonard gets Richards to agree that a lot of money could provide a legitimate motive to fake a photograph, but when the lawyer tries to go the next yard, and get him to acknowledge that his testimony would be affected by the fact that the Flammer photos were being rented for $12,000 to media outlets, what Leonard gets for his trouble is a curt, "No, sir."
       But at this point, Leonard has lost interest in Richards' answers. The attorney is trying, through questions, to call the jury's attention to the price list being circulated by Flammer's agent, Rob McElroy. An immediate objection, by both Peter Gelblum and Dan Petrocelli, puts a stop to that gambit. Four times Leonard tells the judge, "I'd like to approach," and four times the judge tells him, no, there will be no sidebar. Finally, Leonard throws in the towel: "I have nothing further, based on your honor's ruling."
       "Fine," the judge snaps. "Sit down."
       Gelblum, at whom this judge also often snaps, asks Richards if the fact that one of these photos was published in November, seven months before the murders, would affect his opinion about motivation to create a fact. "If you wanted to fake a photograph," Richards says, underlining the obvious, "I think you would want to not have it published in advance." Leonard is still fuming, and the judge takes pity on him. "Why don't you use your lawyerly skills to find some other way to skin that cat?" After a break, Fujisaki reports that the cat has been skinned--how soon before animal-rights advocates discourage that usage?--and, just as Leonard flashes the price list for Flammer's photos on the Elmo projector, Petrocelli calls out to him in seeming jocularity, "And I want dinner tonight." The plaintiffs have so much lawyerly confidence that they will allow the price list to come into evidence. Message to the jury: Our side has nothing to hide.
       FBI agent Bodziak is back, to opine that the shoes O.J.'s wearing in the Flammer photos are Bruno Magli Lorenzo style, with the Silga sole. Phil Baker scores a couple of minor points--Bodziak didn't specifically determine what shoes are on Simpson's feet in the black-and-white photo published in the Buffalo Bills newsletter, and there is, he confirms, no standing order that FBI agents not testify in this case. So where, we are invited to ask ourselves, is Roger Martz?
       There is a jovial attitude in the courtroom this afternoon. Once the jurors leave and the attorneys start arguing motions, the scene has all the tension of a Lions Club smoker. At the edge of the driveway outside the courthouse, a middle-aged black woman named Irma stands, holding a sign that reads: "Is Vannatter a Vampire? What did he do with the Blood?" She's here every day, either outside with one of the signs she pulls from the trunk of her car, or inside, sitting in a Simpson-family seat. Irma's disappointed that the once-plentiful crowd has dwindled to single digits. "I can't even get a good argument," she complains.
       The plaintiffs rest their rebuttal case. Choosing not to put on a sur-rebuttal, the defense rests. It feels like the school year's over, and only graduation lies ahead. The era of good feeling has even infected Irma. She has heckled a local-news reporter daily, yelling "Liar!" at him on his way in and out of the building. But, she tells me, she noticed his sprained ankle this afternoon, asked him if there was anything he needed, and apologized for the heckling. All of us who've been drawn to this strange scene--the reporters, the lawyers, the guy with the "Jesus Loves You" banner who has an unfailingly friendly greeting for everyone, the deputies in the listening rooms and the security guards at the magnetometers--sense the impending scattering. The pros will find other jobs, and the volunteers, the people who got up early to stand here and yell or line up for seats inside, will have to find one or two or three other pastimes with which to fill their lives.
       The defendant, one hears, is reviewing monetary offers for his first post-verdict television interviews. As far as can be determined, the real killers are staying off TV.

Harry Shearer is a writer, actor, and director who has met both Kato Kaelin and Heidi Fleiss.