OJ by the sea.

O.J. by the Sea

O.J. by the Sea

Notes from different corners of the world.
Jan. 21 1997 3:30 AM

O.J. by the Sea

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       If you believe the jurors from the first Simpson trial, no testimony stuck in their minds more forcefully than that of Dr. Henry Lee, the world-renowned forensic pathologist with the impossibly clichéd Sino-American accent. It was Lee's "something is wrong"--cleaned up, according to one of the post-trial books, from his original observation about LAPD evidence collection, "something is fucked"--that provided the fuel for Barry Scheck's blazing closing argument, cited by many more jurors than Johnnie Cochran's more television-friendly race-baiting.
       So when Lee's videotaped testimony is finally shown, it is freighted with expectation: Can a canned performance by the charismatic scientist recapture the magic? Can Memorex Dr. Lee be as good as live? Not that the jurors had been overdosing on live testimony. The Lee video was preceded by the reading of depositions from two Hertz employees in Chicago regarding O.J.'s demeanor; from Larry Fiato, the only witness at the criminal trial to testify outside the presence of the camera, due to his membership in the Witness Protection Program; and from Mark Partridge, who flew back to Los Angeles with Simpson. Phil Baker usually got the assignment to read either the questions or the answers, and, to put it gently, he's not going to be fielding a lot of offers from the Books on Tape people. But when it became Fiato time, Baker Sr. took the stand. Ever the joker, he cracked to the plaintiffs' attorneys arrayed before him, "You've wanted me in this position for a long time." Daniel Petrocelli, feeling more jovial by the day, answered, "But let's throw away the script."
       Immediately before Lee's tape, those of us in the courtroom are treated to some fine legal pyrotechnics, but it is argument outside the presence of the jurors. The jumping-off point is disagreement over which parts of another deposition to read, this one from a critic of the coroner's office. But Dan Leonard quickly uses the dispute to launch a rhetorical torpedo: "We have a very live issue of framing in this case. The LAPD wanted to keep this crime scene tight, they didn't want videotapers, they did not call the coroner's office. We have a glove with a hole in it, and the hole has disappeared." It is the defense's most explicit statement of its theory of the case, and it makes Petrocelli smile. After Ed Medvene presents a brief rebuttal--to the effect that framing evidence is nonexistent--Leonard plays the fake outrage card: "How Mr. Medvene can stand there and say there's no issue about framing is beyond me." But Medvene is indeed beyond Leonard, pointing out that the glove with the purported hole in it is the Bundy glove, whereas it is the Rockingham glove that's been used to incriminate Simpson. "It makes no sense," he asserts, "to switch the Bundy glove."
       "Let me," Leonard pleads, "make one more pitch. The LAPD didn't follow normal procedure. Why? They didn't want the coroner's office there. We ought to be able to make that argument." What nobody wants to say publicly in either trial is that the police delayed calling the coroner's office because, frankly, it's not the best coroner's office in the world. Or in the 213 area code. Fujisaki, who has been consistent at least on the subject of not allowing a defense of second-guessing what could have been done, sticks to his guns.
       Petrocelli then asks the judge for an admonition to the jury, because one of Bob Baker's questions had suggested that Mark Fuhrman's notes included an observation of a hole in the Bundy glove, which Mark Fuhrman's notes didn't do. Fujisaki denies the request, and Baker taunts his opposite, "Quit whining." Then, in quick succession, he adds the obvious: "I couldn't help myself." Why are the lawyers acting this way? Blame the absence of cameras.
       And now, finally, Dr. Lee. Baker introduces the testimony with an apology for its "disjointed" appearance. Translation: The wrangling over what's in and what's out went on so long, they had to stay up all night making the edits, and the resulting jump-cuts sometimes have the middle-aged pathologist hopping around the room like a hyperkinetic hummingbird. Virtually the entire first hour is taken up with Lee's recitation of his credentials, a double-edged sword for the defense--the long list of books, awards, and citations is very impressive for this witness's credibility, but it hasn't been that long since the same team presented an expert witness whose entire set of qualifications could comfortably fit into one of Lee's slow afternoons.
       Some of Lee's performance has not changed; he still does the blood-spatter demonstration that effectively put into question the utter roundness of the trail of Bundy blood drops. Without saying so, his routine--showing how a drop enlarges and irregularizes the greater the distance between its source and the ground--leaves a hint, unsupported by any evidence, that someone crouched along the walkway, eye-droppering a fake blood trail.
       But the pathologist, whose day job finds him running the state of Connecticut's crime lab, is more cautious this time around in lending himself to speculation. When asked by Baker on the tape if the evidence at the crime scene indicated a struggle between the perp (or perps) and Ron Goldman, the pathologist says it does. But when Baker tries to pin him down to the defense's long-struggle theory, a premise that suggests O.J. didn't have the time to commit the crime, Lee shows signs of reluctance.
       "Do you have any idea, was [the struggle] short or prolonged?"
       "I cannot determine. Not a very short one. Mr. Goldman did put up a big fight."
       Baker tries to add up some clues--the leaves on the ground next to the envelope, are they consistent with the idea of force being applied? "If this green leaves was deposit due to this incident, it could suggest a struggle" is all Lee gives him. There's a clear pattern beside Goldman's feet, "but I cannot tell you what kind." On the right cuff of Goldman's jeans, there's a pattern on the surface, "but the exact pattern I cannot report to you." Lee is far less cautious in noting the lapses of the LAPD, such as the blood drops not collected. Essentially, this boils down to a debate over whether the criminalists, charged with assembling a "representative sample" of the blood, got a sample that was representative enough. Interesting stuff for a police academy seminar, but not exactly red meat for the jury.
       Lee's main contribution comes toward the end of the morning, when Baker presents him with a new version of a photo the pathologist had analyzed for the criminal trial. Only then, it was a cropped version. The new, enlarged edition shows something Lee hadn't previously observed: "The most important thing I see is a blood trail consist[ing] of seven drops, major drops, with some other minor drops, not formal trail, which I did not notice before."
       "And," Baker asks, "if, in fact, that blood had been collected, could you then determine if that was one of the perpetrators or even the dog?"
       A simple "yes" would have been nice. Instead, Baker gets, "It's a vertical, low-velocity drop because the photograph provided to me cropped out, so you don't see that. Here again, where it come from, I have no idea."
       Apparently, the world-famous forensic pathologist was not pleased at having been made the point man during Trial 1 for a conspiracy theory involving his friends and employers, the law-enforcement community. Baker needs concrete, or wood, to build his house; Lee gives him cards. Three buttons were missing from Ron Goldman's shirt; one was never found. The envelope was moved between photographs at the scene, and there were blood crusts inside it when Lee examined it the following winter: "If the LAPD observe good laboratory procedure, there'd be no bloody-crust transfers in the envelope. If, in fact, those are transfers." Lee did, when he examined the envelope, see a "deep crease" in it, and when that crease was produced, the glasses Goldman was returning to Nicole could not have been in it. And, of course, one of the lenses was missing, and no fingerprint processing was done on the lenses or the envelope. But when Baker tries to actually score with the envelope, he is denied. There's a bloody imprint pattern on the envelope. "Is the pattern on the envelope consistent with a Bruno Magli shoe?"
       "No." Aha. But ... "Cannot call it shoe print. It is imprint." Thanks just the same.
       When Lee came out to examine the crime scene in late June, the LAPD allowed him only 20 minutes, when he often spends three or four days at major scenes. This, at least, is grist for the cover-up mill. But, when, at mid-afternoon, Baker tells Fujisaki there's still about 40 minutes more of direct exam on the tape, the judge sighs, "Forty minutes more? I should have sustained more objections."
       The LAPD provided Lee with a microscope to examine evidence, but "it was a piece of junk." The two socks at Rockingham were packaged together, and that was "terrible." The good news is that the next time Henry Lee comes to town on a case, the cops will be on their best behavior.
       Beside the new trail of blood drops, Lee's most persuasive argument that the evidence in this case is goofy comes in the discussion of Item 47, one of the well-known blood drops. Baker invites him to examine the "recordation" of that item's collection--are new words like that artifacts of people whose primary language is Lawbonics?--and it turns out that the criminalists didn't record the number of swatches taken from that blood drop. Further, when the swatches were dried, packaged into bindles, and then unpackaged for examination, there were four wet transfers, a phenomenon that went unexplained. And, more graphically, Lee puts up a board illustrating the shape of each of those stains, and finds that, while some match known swatches in terms of shape and size, others do not. Cue the trademark phrase:
       "If," Baker feeds, "the swatches were in fact dry when they were put in bindles, what does the fact of the wet transfer indicate to you?"
       "I really cannot give a conclusion. If the reports said the swatches were dry, then something's wrong."
       When somebody sticks an udder in front of you, the least you can do is milk it: "There's something wrong," Baker asks, "at the LAPD Crime Lab?" It would have been nice to have an answer to that generic question, something that could serve as a hook for the closing argument, a refrain. But Lee never answers the question, and after an objection from Ed Medvene that the query should have been redacted from the tape, Judge Fujisaki rouses himself to tell the jury to disregard Baker's question. "We went through the process of editing this tape," he explains to the jurors, "but some of it was apparently not done."
       The cross-examination, shown next, was taped on the following day, and the lighting in Lee's office had changed, so much so that the pathologist, so clearly Chinese on direct, looks positively Filipino on cross. And it's under Medvene's supposedly hostile questioning that Lee is at his most charming, most like the captivating witness who owned the criminal-trial jury. Yes, he concedes, he's not challenging the DNA findings from Cellmark, the Department of Justice, or even the Scientific Investigation Division of the home of junky microscopes, the LAPD. But he does introduce his "multiple-transfer theory" of crime-scene evidence, a theory designed to remind investigators that there's more than one way to connect a person and a piece of evidence. His example is a theoretical long blond hair that Baker might have picked up from sitting on a chair previously occupied by the owner of the strand. When the attorney goes home and his wife discovers the hair, she might make an incorrect assumption about its connection to her husband. The guy gets laughs with this, and at the same time allows the defense to argue that physical evidence that appears to be damning might have an unknown, innocent explanation.
       But Medvene does get Lee to admit that there is only one set of bloody footprints, the Bruno Magli prints heading toward the back gate. And, "you're not able to tell us how long it took for the encounter between the victims and the perpetrator?"
       "Based on my experience, it cannot be one second."
       "You don't know if it was 45 seconds, 60 seconds, 75 seconds--you're not able to determine that with scientific accuracy?"
       "Nobody can reproduce that with scientific certainty."
       "So it's fair to say, whether it's 60 seconds, give or take 15 seconds, you can't give a scientific opinion?"
       "I can't tell you a scientific opinion. I don't think anybody can." And then, trying to sound a bit less cautious, "You probably can't dig the indentation [in the soil] in one minute. The soil is pretty solid."
       "Unless," Medvene suggests slyly, "the hole was dug by a dog."
       "Nobody knows."
       The hole had been one of Lee's indicators of struggle. Medvene has just gotten him to admit it may indicate nothing more than the presence of Kato, the non-blond.
       "Anything above a minute," the pathologist concludes on the length-of-struggle issue, "I don't know." Both defense experts, Dr. Lee and Dr. Baden, have backed down on this question. A long struggle is crucial to a time-line defense, and Simpson's lawyers will be reduced to arguing a premise that neither of their key witnesses would wholeheartedly support.
       Lee also retreats on that provocative crease in the envelope, the one that suggested hanky-panky with the glasses. "In looking at it now," Medvene coaxes, "does it appear to you that the pair of glasses could have been in the envelope when the crease was made?"
       "Yes."
       Nor will Lee commit to whether the one other shoe print he identified at the scene was made before or after the murder. Despite his stop-and-start questioning style ("Did ... you--strike that. When ... you--strike that."), despite his undisputed possession of the crown as king of the undramatic pause, Ed Medvene is making important headway with the best witness the criminal-trial defense presented.
       And then, because no one can stand too much prosperity, he asks one of those questions that lives right on the outskirts of "angels on the head of a pin" territory: "Is it true that the threshold between wet and dry is somewhat fuzzy?" It is an attempt to blunt the peculiarity of the wet transfers on Item 47, but a fuzzy threshold sounds like something out of Mr. Rogers' house. They spend some time sparring over whether Gary Sims, the California Department of Justice DNA investigator whom Lee has pronounced a good scientist, reported the wet transfers before or after Lee noticed them. But Medvene wraps up his cross with a bottom-line question suggesting that, although something may indeed be wrong, it's nothing for this jury to worry their pretty little heads about:
       "You're not saying you have any scientific fact to show that any L.A. police officer planted or did anything, cheating, with any evidence?"
       "I did not testify to that."
       "So that statement would be correct?"
       "Correct."
       We have slopped over to Friday morning, and the redirect is marred by having to stop and start the video a great number of times. There's a thing called flow, and this testimony no longer has it. A further interruption occurs when Petrocelli and Kelly take advantage of a break to ask the judge to prohibit Simpson in his upcoming testimony from alleging drug use or consorting with prostitutes on the part of his late ex-wife. Bob Baker answers that the plaintiffs put the victim's character into play, but the judge seems less than interested. Thursday, due to a juror's private matter, had been an off day. Why, he demands, wasn't this issue raised then, when "we just sat around, and then Mr. Petrocelli came in with Levi's on." Petrocelli defends himself weakly--"They were Guess jeans"--and the last few snippets of the video play out. We all know what we want to see today, and it's not Henry Lee on tape. It's the defendant, live.
       But first, a bit of a deposition reading. The depo is from Gary Siglar of the coroner's office, and the issues are the police delay in calling his people to the crime scene, and the unusual disposition of the reference blood samples taken from the victims; the samples were turned over to Detective Phil Vannatter, rather than to the Scientific Investigation Division. When, Siglar is asked, was the last time such a disposition occurred in his department?
       "I don't know the date, but I'm sure it occurred."
       "Is it fair to say such a disposition is very rare?"
       "No, I wouldn't characterize it as that. It's uncommon."
       "You never did it before?"
       "No. I would characterize it as having seen it a few times in the 12 years I've been in the coroner's office."
       The plaintiffs don't read any cross-exam from Siglar's depo. They can live with uncommon. The arguments resume, a kind of verbal drumroll for the drama of the afternoon. First, Bob Baker tries to preclude the plaintiffs from calling their rebuttal witnesses. Nice try. As he moans at the rejection of his motion, Fujisaki scolds him: "Mr. Baker, I'm making my rulings. You know where you can go with them." Then, Dan Leonard makes one more attempt to get Fuhrman's criminal-trial testimony included in this trial, and he'd also like to read Laura Hart McKinney's criminal-trial testimony while he's at it. Of course he would. Without her 10 years of N-word tapes, there is no motive for a police frame-up more substantial than a possible hatred for USC. The motions are denied. The case for the defense comes down to the hours after Friday's lunch break, and the following Monday morning, when O.J. Simpson once again takes the stand, this time with Bob Baker serving up big fat slow ones right over the plate.

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