OJ by the sea.

O.J. by the Sea

O.J. by the Sea

Notes from different corners of the world.
Jan. 28 1997 3:30 AM

O.J. by the Sea

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       It takes the plaintiffs less than three days to present their rebuttal, yet it gives the impression of answering every nagging doubt the defense has raised. Here is Sandra Claiborne first off, a husky-voiced, light-skinned black woman with short dark hair, wearing dangly earrings and a pale-lime suit. An unlikely cop, but cop she is, a forensic print specialist for the LAPD. But her job isn't really to talk about prints. She testifies she sat in a car with police photog Rolf Rokahr, for "several hours," waiting for detectives to tell them to start working. They asked him to enter the scene and start shooting between 6:20 and 6:40 a.m., she says. Peter Gelblum asks, "Was it light outside when Mr. Rokahr entered the crime scene first?"
       "Yes, it was light."
       Sandra Claiborne's job is to weigh in on the side of the detectives, who say Rokahr took the photo of Mark Fuhrman pointing at the Bundy glove after dawn, after having seen the Rockingham glove, after being told to go back and see if the Bundy glove was a match. Rokahr has testified he took that photo at around 4 a.m.
       And she's confronted on cross by Bob Baker's son, Phil, who begins inauspiciously:
       "You testified you arrived at Bundy around 3 a.m.?"
       "Yes."
       "The log says 3:55, are you aware of that?"
       He shows it to her, with a flourish. "That's a 'two,' " she says quietly.
       "Not a 'three'?" Phil asks weakly.
       "No."
       He confers with Dad.
       When in doubt, go up an octave. Falsetto's not that far from Phil's natural voice, and he uses it, like his father, to ask questions that carry a heavy load of disbelief. Claiborne never, she acknowledges, saw Mark Fuhrman at Bundy, never saw him pointing at the glove when the photo was taken, didn't see the photo taken. "You have no idea when that photo was taken, do you?"
       "No idea."
       Gelblum fights back. "The only time you saw anybody come and ask Mr. Rokahr to take pictures was when it was light out?"
       "Yes it was."
       Next in the plaintiffs' parade of Young Presentables is E.J. Flammer Jr., a stocky 24-year-old with a shock of wavy dark hair. Flammer is the Laura Hart McKinney of Trial 2, a nobody out of nowhere who blows the case wide open. She dug up some tapes; he found some photographs. She destroyed an unequivocal statement about the "n-word;" he appears to destroy an unequivocal statement about the "s-word"--shoes.
       Flammer tells John Q. Kelly that he works at an engraving company in Buffalo, but that he's a sometime free-lance photographer who got a plum assignment, photographing Buffalo football legend O.J. Simpson to promote a dinner celebrating the 20th anniversary of his rushing record, because the man who headed the boosters' club putting on the dinner was E.J. Flammer Sr. Junior's job was to shoot a bunch of pictures of Simpson standing on the field, flanked by prominent, football-supportive Buffalonians. Simpson has testified, the day before, he has almost no memory of this event, has seemed not to recognize the pin worn by members of the Monday Morning Quarterback Club. Kelly asks Flammer, "This dinner celebration was for Mr. Simpson in particular?"
       "That's correct."
       Baker mentioned the rushing record in his opening statement. He asked O.J. about it on direct. The plaintiffs are suggesting that O.J.'s failure to recall a celebratory dinner for him in Buffalo, where he set the record, is not the most credible thing you've ever heard.
       Flammer describes the mundane details of shooting promo photos, a process that took all of 10 minutes. He still has the equipment he used; he started a new roll after the first 27 shots because "some people spoke up and said they wanted an individual picture with Mr. Simpson"; he put the film in the front pocket of his fanny pack. He took the film to Nova Photo, a professional lab, for processing. He had a black-and-white print made for publication in the Buffalo Bills Report, and several color prints made for the Bills' PR director. As his invoice to the Bills is flashed on the Elmo projector, Flammer takes a sip of water and sneaks a peak at his onetime idol, the defendant. Then Flammer identifies on the Elmo the field credential he wore to get into the end zone that day.
       Flammer developed the black-and-white print in his own basement darkroom. He personally delivered it to the editors, and the print appeared on Page 19 of the Bills Report, months before the murders.
       Kelly puts up a board with 30 photos of Simpson posing with supporters. "Those," says Flammer quietly, "are the photos I took that day."
       "What did you do with the negatives?" Kelly asks.
       "I put them in a three-ring binder in the darkroom at my house."
       Kelly croaks more than talks; his husky voice sounds in perpetual need of a Ricola. But he's walking Flammer step by step through the details of the most incriminating evidence in this proceeding. "When was the next time you had occasion to look at these negatives?"
       "December 27, 1996."
       He signed a formal agreement with agent Rob McElroy three days later. "I have been advised by my attorney"--his cousin's husband--"that the three major networks have purchased rights."
       "Since September 26, 1996, have you maintained custody and control of the negatives?"
       "Yes."
       And then, with a nod to Robert Groden's critique of the earlier Bruno Magli photo of Simpson as being suspicious because--as the first shot on the roll--it was easiest to fake, Kelly asks whether the frame from which the black-and-white print was made was the first picture on the roll. It was not. It was Frame 7A.
       If you're Bob Baker, what do you do with this kid? You start out asking why he wouldn't talk to your son in the hall before testimony began. Flammer had, after all, told Kelly that no one from the defense had contacted him.
       "This was someone who introduced himself to me as your son, I didn't know who he was, he could have been with the media, or anybody."
       Memo to Phil: Next time, carry business cards.
       Then, if you're Baker, you're dubious about the belated discovery of these photos.
       "They didn't come to your mind throughout this whole time period [since the case began]?"
       "That's correct," Flammer replies evenly.
       And, if you're Baker, you suggest there may be more here than meets the eye:
       "Is Harry Scull a friend of yours?"
       "Not really."
       "How many photographers are there in Buffalo?"
       "Quite a few."
       Then you inject that little element of mystery that bedevils every detail in this drama: The sign-in log for Rich Stadium that day, the one Flammer would have had to sign on his way in, is missing, "the only log missing in four years' worth of games." It's a mystery without meaning, because the defense never challenges Flammer's testimony that he took the photos. We are left to conclude that, at worst, he parachuted in.
       And then, if you're Bob Baker, you go to motive:
       "Would you tell these ladies and gentlemen the minimum asking price for these pictures?"
       "I'm not privy to that information."
       "Your agent is Rob McElroy?"
       "Correct."
       "Who just happens to be the agent for Harry Scull, doesn't he?"
       "That's correct."
       Flammer's responses seem so uninflected by self-justification, it's almost as if he completely misses the meaning of Baker's sarcasm. And Baker's sarcasm is as subtle as a Dennis Rodman publicity stunt.
       "How many TV appearances have you scheduled while you're out here?"
       "Not a one."
       "Have you tried to sell these photographs to the National Enquirer?"
       "I don't have that knowledge."
       "Have you attempted to insulate yourself from that knowledge?"
       "Yes."
       "Were you told that if you testified, the price of these photographs would increase?"
       "Not at all."
       "Even when you heard about Harry Scull getting paid for [his photo], nothing triggered in your mind about this momentous event?"
       "Not particularly."
       "Kind of like finding a Rembrandt in your attic, huh?"
       "You could liken it to that."
       Baker has shot poison-tipped arrows into Flammer's limbs, and the kid didn't even notice. Purely on the basis of casting the scene, you couldn't have a better guy fronting for the last-minute killer evidence.
       Leslie Gardner, a youngish woman with dark lipstick and long dark hair streaked with highlights, returns to revisit the issue of sweat clothing. She was the wardrobe mistress on the exercise video that, shown during the criminal trial, made Simpson's claims of crippling arthritis ring somewhat hollow. Now she's here to rebut O.J.'s claim, in his direct testimony, that he took home one item from the shoot, a DKNY cashmere sweat-suit top. She admits she ordered such a suit for the video, but she testifies O.J. never even wore it. Why? "The suit was the wrong size."
       But a black cotton sweat outfit? One like the one the killer may have worn? Yes, Gardner testifies she bought at least one top, at least one bottom. She bought a black, cotton fleece top with a zippered front at the now-defunct Bullock's department store, and we see a photo of O.J. wearing the garment. We see photos of him wearing sweat pants, which Gardner testifies she bought. They're cotton fleece. After the shoot, did Simpson return any of the black sweat clothing he's pictured wearing? "No, he didn't."
       The issue here is cotton, because the blue-black fibers found at the crime scene were cotton. Leslie Gardner came back here on rebuttal to say "cotton" as often as possible, and Dan Leonard knows it.
       "When you were asked the same question, virtually, during the last session when you testified, you never mentioned the word cotton, isn't that correct?"
       "I wasn't," Gardner answers quickly, "asked about fabric." She props her chin on her left hand.
       "You have no idea whether this fabric is cotton fleece or a mix of cotton and synthetic fiber, do you?
       "That's right."
       "But you just testified that it was cotton."
       "Cotton to me means either 100 percent cotton or a cotton-synthetic blend."
       Leonard's last shot is also dripping with irony. "Do you think if someone is wearing a clothing item that's a 50-50 blend of cotton and polyester at a crime scene, he's only going to shed the cotton fibers?"
       It's a question that needs no answer, it's posed to the jurors, not the witness, but Gardner answers anyway: "I know nothing about shedding fibers."
       Even more than E.J. Flammer Jr., the heart of the plaintiffs' rebuttal is embodied in the bearish frame of Gerald Richards, a former FBI photo analyst who has come to complete the evisceration of Robert Groden and authenticate the Harry Scull photo. The defense has tried mightily through motion and argument to keep Richards from testifying, and especially to prevent him from verifying the Flammer photos, but here he is, tall, gray-haired, wearing a black suit and carrying a dark, hard-leather briefcase. In the movie, he'll be played by Randy Quaid in a gray wig.
       Richards affably recites his credentials--20 years in photo examination, head of the special photographic unit at the FBI for six years, professional organizations, publications, awards--and then Peter Gelblum asks him to explain how he examined the Scull photo.
       The film itself was examined visually, "and microscopically, using a micrometer." Then a more detailed exam of the image in question: "I looked at the grain, the grain structure. I scanned the entire negative, millimeter by millimeter." He looked for problems with perspective and dimension, cut lines, retouching marks, aliasing, and pixilization. And, Gelblum asks, only slightly highlighting the fact that we are about to hear the Questions of the Trial, what was the result of all that examination?
       "After close examination of this photograph, I could find no indication whatsoever of any type of idiosyncrasy to it, abrasion, any sign of touch-up, any sign of alteration to any portion of the photograph, and particularly to the shoe area."
       "Did you find anything that even raised any suspicions in your mind?"
       "No, sir, I did not."
       "Did you come to any conclusion as a result of your examination as to whether anybody changed the shoes that Mr. Simpson is wearing in that photograph?"
       "Normally, the photographs I get are usually very poor quality and do not allow me to come to a positive conclusion. But in this particular case, there's no doubt in my mind regarding the shoes in this particular photograph, that these have not been altered or changed in any way."
       "No doubt?"
       "No doubt."
       The defense fights, and loses, a battle to keep Richards from going down Groden's list of anomalies and demolishing them. Two or three times a day, the defense has been trying to forestall this rebuttal. For Petrocelli, winning isn't enough. He has to denounce the desperation.
       "Your honor, we're sitting here trying to keep our cool, and they're just trying to muck it up, and it's obvious ... Let's just get this trial over with."
       "Then rest," Baker suggests scornfully.
       Rest the plaintiffs do not. Richards spends the afternoon detailing, and illustrating, an innocent explanation for each of Groden's anomalies. When he gets to the point of explaining how the Canon F1 camera can put scratch marks on film--and in the process reveals that he'd had in his inventory at the FBI about 1,500 Canon F1s--you sense that what's left of Groden's credibility can be folded into a bindle and put away to dry.
       There wasn't, Richards testifies, a tenth of a millimeter difference in the lengths of Frame 1 (the original shoe photo) and the next frame. Perhaps out of fear that Groden can at least win the comedy competition, Richards places a metal band around his head, with two lenses drooping from it. "What's that you're putting on your head, sir?"
       "A double loupe. It's what I usually use for most of my examinations. It gives double magnification."
       Was it, Gelblum asks, a good idea for Groden to get his enlargements for examination by using the photocopy machine at Kinko's? Actually, no, about as good an idea as sending Andrea Mazzola to the crime scene. "It will slightly enlarge or reduce the image, many times not linearly, so the image won't be consistent across the page. My own photocopy machine is off in both dimensions, significantly."
       What Groden called a false edge at the beginning of Frame 1, Richards detects as a phantom photo, one that's exposed by clicking off the camera with the lens cap off to get past frames Nos. 00 and 0. The grain is "rather consistent," there are no retouching marks, and the strange reddish tint Groden noticed in Frame 1, and only Frame 1, Richards explains as reflected and diffused light bouncing off the red lines in the end zone. Why are all the other shots on the roll tinting toward blue-green? Because, Richards says, the people in those frames are standing on the green grass of the field.
       What about the suspicious fact that the photo in question is Frame 1? Isn't that the one you use for faking? "In my experience, that fact has no significance to any technique that I'm familiar with." And to add injury to injury, Gelblum walks to the easel beside the witness stand and duly crosses out each of the points Groden had written on a large sheet of paper, one by one. "Do you," Gelblum summarizes, surveying the scorched earth of Groden's testimony, "consider any of the points that Mr. Groden made to be evidence of an altered photograph?"
       "No, I do not."
       Finally, Gelblum uses Richards to deal with that pesky photo of the glove, the one that made Dennis Fung wonder if the glove in court was the one he picked up. What Baker kept referring to as a hole, Richards says, is "a piece of debris sitting on top of the glove itself." Aside from shadows and positioning, there is the little matter of the glove's lining, which Richards testifies is brown, not the light color of the area in question. You might as well ask this guy who killed the victims, the way he's disposed of everything else.
       Dan Leonard scores what points he can, and Richards has no problem in ceding them. "You have no idea whether there is a damaged area under the piece of debris?"
       "I do not."
       "Now," Leonard says, "let's talk a little about you." Richards, it turns out, has testified in over 100 cases, but this is the first trial in which he's been called upon to render a fake-or-real opinion about a photograph. He did testify in one deposition. "Is examining a photograph to determine whether it's been altered an exact science?"
       "No."
       Richards gladly admits that he didn't take into account in his examination anything other than what he observed on the film, the negatives, and the enlargements. "So," Leonard says, pushing his luck, "your job was just to look with tunnel vision at only what you could see within the four corners of the photograph?"
       Not even a nice try. "As stated, no."
       "It didn't have any significance to you that this photograph was sold?"
       "No."
       Richards did talk to Rob McElroy, the agent, but didn't ask him why the negative had been flown to London on the Concorde, because he didn't think it was important. Then Leonard gets greedy, and pushes Richards into his most unequivocal endorsement of the picture's authenticity:
       "Now, is it true, sir, that you can't always tell whether a photograph is fake? Is that true?"
       "Yes, sir."
       "In fact, the technology and techniques that exist today can be fairly sophisticated and very good, can't they?"
       "They can be, yes, sir."
       "To the extent to where even a seasoned examiner like you can't see any indicia of a fake?"
       "Under some circumstances, yes."
       "And by the way, you're not telling this jury that you're 100 percent certain that this photograph isn't a fake, are you, sir?"
       "In my mind?" Setting Leonard up perfectly for the slam.
       "Yes."
       "Yes, I am."
       "You're saying 100 percent?"
       "I'm saying that around the area that is in question, the feet and shoes and leg areas, my opinion is 100 percent certain it is not a fake."
       If Leonard asks any more questions, Richards just might give each juror a framed certificate of authenticity.
       Gelblum comes back to ask whether, in the professional organizations of which he's a member--those pesky credentials again--Richards knows of anyone who's done more work on investigating possible altered photos. Richards does not.
       "Did the FBI get many altered-photograph case[s]?"
       "We would get three or four a year."
       Richards has brought and shown to the jurors more than a dozen enlargements and illustrative diagrams. He packs them back in his case, and strides off the witness stand and out of the courtroom. Randy Quaid will get cheers at this point.
       Greg Matheson of the police crime lab comes back to clean up part of Fung's latest mess, identifying the Bundy glove in evidence as, well, the Bundy glove, identifying the mystery spot as debris, not a hole. O.J. watches him, shaking his head.
       Phil Baker gets up to defend the credibility of Dennis Fung. "Do you have any reason to believe he lied to this jury?"
       "I have no reason to believe he'd lie in court at all."
       An elegant sequence, this. You befuddle an incompetent witness into blurting out his confusion, then your son attacks even an imagined affront to the incompetent's veracity.
       Then Baker gets Matheson to admit that bloodstains collected from the Bronco late in August don't appear in photos taken on Aug. 10, a point for the defense's planting theory. At one point, Matheson asks if he can consult his notes. Phil looks from the lectern across the courtroom at his dad, gets a subtle signal, and says, "Sure."
       Tom Lambert tries to deal with the problem of the Aug. 10 photos with a question that leads more than Fred Astaire:
       "In this case, Mr. Matheson, you can see the blood in some of the photographs, you can see it real clearly in other photographs, and there are some photographs where you can't see the blood where you know it was there because you later checked them?"
       "Yes, that's true."
       There will be more experts to deliver more rebuttal. But first, to complete his humiliation, we get to see Dennis Fung one more time.

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