The Run of His Life: The People v. O. J. Simpson (58 page)

On first blush, it was devastating evidence. Many of the first cops on the scene noticed the bloody smudge on the back gate; the blood was located just where an intruder might put his left hand to open the gate and leave the pathway that ran along the side of Nicole’s house. Fuhrman referred to the blood on the back gate in three separate entries in his contemporaneous notes from the crime scene. The DNA tests on the bloody smudge came back as virtually conclusive. There was only a 1 in 57 billion chance that the blood belonged to someone other than O.J. Simpson—who, of course, had a cut on his left hand on the morning after the murders. There are men on death row with far less persuasive evidence against them.

So Scheck went to work. He noticed first that Fung had not collected the blood on the gate until July 3, 1994—three weeks after the killings. Fung had explained in his direct examination that he had simply missed this blood when he took samples at the scene on the morning after the murders. Revisiting the scene with Detective Lange later, Fung realized he had to check to see if the blood was still on the back gate. It was, and Fung took it in for testing.

Scheck then noticed something curious in the test results. For many of the stains that Fung collected from the walkway outside Nicole’s home, the DNA had substantially degraded. As a result, these stains could only be subjected to the PCR type of DNA testing, which yields less precise results than the RFLP method. But the blood on the back gate was scarcely degraded at all. It was so rich in DNA that the police could, and did, do RFLP testing on it. Scheck found this paradoxical. Why would blood that had sat outside for three weeks be
less
degraded than blood that was collected within a few hours of the crime? Scheck saw conspiracy. If the blood had been planted on the rear gate after that first day—and, of course, after Simpson had given his reference sample to the police—that would explain why it was so rich in DNA.

Scheck didn’t stop there. He examined photographs of the crime scene. On the morning after the murders, Fung had worked closely with the photographer at the crime scene, but because Fung didn’t focus on the rear gate, neither did the photographer. There was no clear photograph of the back gate from those taken on the morning of June 13. The only head-on pictures of that stain were taken when Fung finally did remove a sample, on July 3. But Scheck did find one photo from June 13 that revealed a distant view of the back gate. He had it blown up many times. Though the photo was blurry and somewhat ambiguous, Scheck could argue that the blood was simply not there on June 13. In a dramatic moment in his cross-examination of Fung, Scheck showed Fung the July 3 photo, where the blood is clearly visible, and then the earlier photo, where it is not.

“Where is it, Mr. Fung?” Scheck asked with a sneer in his voice. Fung couldn’t say. This exchange ended the court day on April 11. When Scheck returned to the defense table, Shapiro told him, “Perfect!”—which it was. (Shapiro’s only other contribution to the Fung cross-examination was to joke, during a break, that he was eating fortune cookies from the “Hang Fung Restaurant.” He later offered an oleaginous public apology to Fung and “all my friends in the Asian-American community” for the remark.)

But Scheck wasn’t finished. He focused on the preliminary-hearing testimony of Thano Peratis, the police nurse who took Simpson’s blood sample on the afternoon of June 13 at Parker Center. Peratis had testified on cross-examination at the preliminary hearing that he had taken about 8 milliliters of blood as a sample—a standard amount. Using this fact, Scheck then did something that had probably never been done before in a criminal case: He reviewed the records to see how much of Simpson’s blood sample had been used up in all the subsequent testing. Again, Scheck found something peculiar. The subsequent tests accounted for only about 6.5 milliliters of blood. Scheck thus concluded that some of Simpson’s blood was “missing.” Scheck also found an expert to say that the blood on the gate contained EDTA, a preservative used in the test tube where Simpson’s blood sample had been stored.

Thus, Scheck had the raw material for his counternarrative of the blood on the back gate. The story went like this: On June 13,
Fung did not collect the blood on the back gate because it wasn’t there; the photos were proof of that. Between June 13 and July 3, someone—probably Vannatter—planted O.J.’s blood on the back gate. (After all, Vannatter, curiously, had brought O.J.’s blood sample all the way back to Brentwood from downtown Los Angeles to hand to Fung.) If the photos themselves were not enough proof that the blood was planted after the fact, the DNA tests themselves were. The DNA of the blood left at the actual crime scene had degraded, but because the blood on the gate came from Simpson’s fresh sample, it yielded definitive results. Someone had planted some of Simpson’s “missing” blood on that back gate: Q.E.D.

Now, the prosecution had a response to this story, but it was a complicated one—and it depended, in significant part, on the jurors’ believing in the incompetence of the LAPD, which was not a message the government otherwise wanted the jury to accept. First of all, the prosecutors asserted, Fung did simply miss the blood on that first morning. On that day, he collected dozens of stains at Rockingham and Bundy, and this one just fell through the cracks. The fact that many police officers saw the blood on the back gate established that it was not planted at some later date. As for the good quality of the back-gate blood several weeks later, that too related to a flaw in Fung’s work. After Fung collected the samples on June 13, he placed them in plastic bags and then stored them for several hours in an unair-conditioned truck. In retrospect, it was clear he shouldn’t have done that, because heat and humidity degrade DNA. But the blood on the gate spent three weeks resting on a clean, painted surface in the cool Brentwood air. Naturally, the DNA in it did not degrade. The photographs proved nothing, establishing only that neither Fung nor the photographer had paid attention to the back-gate stains on June 13. A government expert also challenged Scheck’s claim about the presence of the preservative in the blood. In some of the most highly technical evidence in the case, an FBI expert said the blood from the gate contained no EDTA.

As for “missing” blood, that was a figment of Scheck’s imagination. Peratis had testified without thinking at the preliminary hearing; he said he took 8 milliliters, but that was just a standard amount. When it comes to such small differences as 1 or 2 milliliters, nurses generally pay little attention to the amount of blood
they take from living people. It doesn’t make any difference; if more blood is needed, the person can simply give more at another time. And Peratis, who was in poor health, gave a videotaped statement at the trial in which he confessed that he had been too categorical when he testified at the preliminary hearing that he took 8 milliliters from Simpson. It might have been as little as 6.5 milliliters. (This important conflict over Peratis’s testimony at the prelim showed just how important it was that Dershowitz had succeeded in stopping the grand jury. If prosecutors had indicted Simpson before a grand jury, Peratis never would have been cross-examined before the trial.) As for Vannatter’s delivery of the blood to Fung in Brentwood, that took place at O.J.’s home on Rockingham. A news video showed Fung placing the vial in his truck outside O.J.’s house. Thus, that blood couldn’t have been planted at Nicole’s condo on Bundy.

More fundamentally, though, the prosecutors wanted the jury to believe that the police did not plant blood on Nicole’s back gate because they would not do such a thing. Vannatter, Lange, Fung—they all gave their word that they did not do it. That, the prosecutors believed, should have counted for something. But with a jury predisposed toward sympathy for the defendant and hostility to the police, Scheck’s counternarrative found a receptive audience.

Scheck’s theories covered far more than just the bloody smudge on the back gate. He argued that the blood drops to the left of the shoe prints at Bundy had been cross-contaminated with Simpson’s reference sample; he contended that some nefarious police officer—never named—splashed some of Nicole Brown Simpson’s blood on O.J. Simpson’s socks, which were recovered from the foot of his bed. Scheck asserted that Mark Fuhrman had planted Ron Goldman’s blood in O.J.’s Bronco—though not the way Bailey had contended. Unlike Bailey, who had asserted Fuhrman used the second glove like a paintbrush in the car, Scheck suggested that Goldman’s blood simply rubbed off as Fuhrman was illegally rooting around inside Simpson’s car while it was parked outside Rockingham in the early morning hours of June 13. As with the blood on the rear gate at Bundy, Scheck was able to tease some evidentiary
support for each of these hypotheses. With the exception of Fuhrman, Scheck never named the perpetrators of these misdeeds, nor did he explain how or why so many disparate people—which would include, at a minimum, Fuhrman, Vannatter, Lange, Fung, Mazzola, and two other LAPD criminalists, Collin Yamauchi and Michele Kestler—undertook this massive conspiracy. Still, Scheck’s arguments amounted to more than mere conjecture, and he made them earnestly and with zeal.

Fung ultimately spent nine days on the witness stand, and his departure from it prompted one of the more bizarre scenes of the trial. By the end of his ordeal, Fung’s pitiful appearance served as the best argument that he was no conspirator. Even if Fung had wanted to frame Simpson, he was clearly so hapless that he didn’t seem up to the task. As Fung was ready to step down, Scheck thanked him twice. Fung walked by the prosecution table, where Darden gave him a halfhearted handshake. When he reached the defense table, Fung was greeted like a hero. Johnnie Cochran grasped his hand. Shapiro enveloped Fung in a bear hug. Then O.J. Simpson reached out and gave Fung a big smile and a handshake—all this for a man who, Scheck contended, had lied to cover up his involvement in a scheme to frame a man for murder. (Courtroom-security rules prohibit defendants from making such gestures, but the bailiffs, like everyone else, were too stunned to intervene.)

In its way, the defense team’s hearty farewell to Fung displayed a kind of sportsmanship to a vanquished adversary. It is possible to read something more sinister, however. At a minimum, Shapiro, Cochran, and Simpson himself knew how absurd the idea was that Simpson had been framed for this crime. But because of Fung’s abysmal performance (and Goldberg’s inferior preparation of him), that idea had achieved some currency in front of the jury. No wonder the defense wanted to thank him.

Andrea Mazzola followed her boss to the stand, and endured a similar—though not so disastrous—ordeal. A shy and ingenuous young woman with an apparently sincere passion for forensics, Mazzola did admit making a few minor errors in handling the evidence—not changing gloves frequently enough and things like that. But Peter
Neufeld’s sneering cross-examination made no progress in portraying her as a member of some grand conspiracy. Mazzola lingered on the stand for more than a week, which meant that the prosecution presented only two witnesses—Fung and Mazzola—in the entire month of April.

What followed should have been the highlight of the prosecution’s case—the presentation of the results of the DNA testing. Garcetti had recruited two of the top DNA prosecutors in the state to present this portion of the evidence, Rockne Harmon from Oakland, and Woody Clarke from San Diego. Earlier in the case, these two had offered to step aside and let one of the local prosecutors handle the evidence in front of the jury. But, facing too many witnesses in too little time and also wanting to share the limelight, Marcia Clark had let Rockne and Woody handle it. The result, probably inevitably, was that this part of the case expanded. When Woody Clarke put on Robin Cotton, the laboratory director at Cellmark, the private DNA operation in Maryland that did much of the testing in the case, Clarke spent a full day and a half just on introducing the technology to the jury. (In a subsequent trial, shortly after Simpson’s, Cotton began giving DNA results after just one hour of preliminaries.) Attempting to be thorough, Woody Clarke made the subject boring and incomprehensible, especially to an uneducated jury.