A Powerful, Damaging Cross

The drama played out last week in Judge Lance Ito's courtroom could have been titled "The Terminator" instead of "People vs. Orenthal James Simpson." The destruction of LAPD criminalist Dennis Fung was so complete that Simpson defense attorney Barry Scheck seemed reluctant to end it. And why not? Fung's almost total collapse on the witness stand provided the Simpson defense with its best days yet. Simpson's lawyers could not contain their glee. Lead trial attorney Johnnie Cochran joked, "We're having Fung." Robert Shapiro, Cochran's nearly always silent partner, engaged in Al D'Amato-like racial sensitivity by handing out fortune cookies and saying, "This is from Hang Fung restaurant."

With his New York accent and even more pronounced New York attitude, Scheck assaulted Fung for five days. Fung seemed halting and his testimony contradictory. Scheck confronted Fung with his statements before a grand jury last summer in which he said he, and not rookie criminalist Andrea Mazzola, had collected most of the blood evidence. Then Scheck displayed videotape of Mazzola, a key defense target who is expected to testify this week, collecting the glove found at 875 South Bundy (Nicole Brown Simpson's condo), and other critical pieces of evidence. Fung conceded his earlier testimony was not correct. Fung also told the jury that he had personally taken possession of a via] of O.J. Simpson's blood from lead detective Phil Vannatter on June 13 at Simpson's house. Scheck again went to the videotape. News cameras shot Fung and Mazzola leaving the Rockingham house June 13. Fung's hands were empty. Mazzola carried a black garbage bag. On the stand, Fung suddenly recalled that the garbage bag contained the vial of blood.

The question of who possessed the vial of blood-and when-is critical to the defense theory that police and prosecutors framed 0. J. Simpson. If defense attorneys can create a window of time during which the blood vial is unaccounted for, it will help them argue that the police used the sample to spike evidence. "I believe the issue of reasonable doubt is ultimately going to rise and fall on the question of tampering," says Myrna Raeder, a law professor and DNA expert at Southwestern School of Law. On that issue, Scheck may have made some headway. Dismissed juror Jeanette Harris, who expanded on her stories of racial disharmony among the jury to Ito,, said she was suspicious of what had happened to the sample. At the very least, the careless work of the LAPD is providing unwitting assistance to the Simpson defense team. NEWSWEEK has learned from two police sources that none of the blood collected by investigators - including Simpson's sample--was officially booked into evidence until June 16, four days after the murders. The defense can be expected to exploit this discrepancy with future witnesses. A spokeswoman for the district attorney's office said prosecutors believe that the blood was booked June 14.

As good as Scheck's cross-examination was, the defense celebration was premature. Fung is but one of several witnesses who will testify about the blood evidence, the linchpin in the state's case against Simpson. Prosecutors will soon introduce powerful genetic blood-typing evidence to tie Simpson to a trail of blood stretching from the murder scene to the former football star's estate. The defense attack on the evidence is "an awful lot of smoke," says Howard Coleman, president of GeneLex, a Seattle-based forensic DNA laboratory "Everything we get in the lab is contaminated to some degree. What contamination and degradation will lead you to is an inconclusive result. It doesn't lead you to a false positive."

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At the end of his questioning, Scheck may have overreached when he theatrically accused Fung of destroying a page out of an evidence checklist. Scheck said it would have proven Fung did something nefarious with Simpson's blood sample. His evidence? One page of the report was a photocopy lacking staple holes found in the originals. "You got rid of the original. Isn't that true, Mr. Fung?" Scheck demanded. The weary criminalist later produced the original page with staple holes-which was exactly the same as the photocopy: blank. it was a small victory for Fung in a very bad week for the prosecution.

Week 12: It was a good hair week for Marcia Clark and-did you notice?-the judge. On a scale of 1 to 5 gavels, here's the flash judgment:

"Fung" may become a dirty wo around L.A. crime scenes.

But Hank Goldberg's redirect gets an A as a rescue effort (and a D for discovery violations).

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Barry was on a roll -until the prosecution produced the missing page four. Gotcha! Staples can't hold this conspiracy theory together.

Boy, did ex-juror Harris tell it to the judge--who, by the way, was right to say he was losing patience with the trial's geologic pace.

A Powerful, Damaging Cross | News