Simpson Prosecutors Shift Focus to Physical Evidence : Trial: Bitter debate on crucial DNA issues sets stage for the heart of their case. Testimony could begin today.
Prosecutors in the O.J. Simpson trial shifted gears in their case Thursday, moving from testimony about Simpson’s actions on the night of the murders to their most important body of evidence: an array of blood, hair and fiber samples and a slew of scientific tests they say will link the defendant to the crimes.
In the three months since opening statements began, prosecutors have focused on trying to demonstrate that Simpson had the opportunity to commit the June 12 murders and on attempting to show that his motive was to carry out a final act of abusive control against his ex-wife. In the trial’s next phase, which could begin today, prosecutors hope to prove that physical evidence--blood, hair and fibers--connects Simpson to the scene of the crime and to both victims.
Simpson has pleaded not guilty to killing Nicole Brown Simpson and Ronald Lyle Goldman, and his attorneys have launched an aggressive attack on the validity of the scientific evidence. They have accused authorities of mishandling the blood samples and have said police may have attempted to frame Simpson--allegations for which they have not offered any evidence.
Without any known eyewitnesses to the murders, the prosecution’s scientific tests form the bulwark of its attempts to link Simpson to the crime scene. As a result, the next few weeks of testimony--and how the jury receives it--may well determine whether Simpson leaves court a free man or spends the rest of his life in prison.
“The physical evidence in this case is what this will come down to,” said Howard Coleman, president of GeneLex, a Seattle-based DNA laboratory. “In general, DNA evidence is well-accepted by juries. It’s important, however, to present this type of evidence correctly and accurately.”
Greta Van Susteren, a Washington, D.C.-based defense lawyer, agreed.
“The prosecution is without an eyewitness, so they have to put all the pieces of the puzzle together,” she said. “Scientific evidence is a very good puzzle piece. . . . The defense recognizes this, and their job is to try to destroy every puzzle piece as the prosecution puts it on the board.”
With both sides acutely aware of the pivotal role that the scientific evidence will play in the trial, they have marshaled some of the nation’s most highly regarded DNA legal experts. In various combinations, the lawyers for the two sides have squared off before, are long familiar with each other’s work, and appear to deeply dislike one another.
Those bitter feelings were much in evidence Thursday during a debate over how much leeway Superior Court Judge Lance A. Ito should allow each side in presenting its DNA evidence and in questioning the other’s witnesses. That debate is a mostly dry mixture of dense science and obscure evidentiary rules, and the courtroom audience thinned out as the afternoon wore on.
By day’s end, even Simpson was yawning. The dry legal and technical debates, however, were enlivened by vitriolic exchanges between longtime antagonists who have made careers out of debating the complexities of scientific evidence.
Deputy Dist. Atty. Rockne P. Harmon, an Alameda County prosecutor brought in to assist with the Simpson case, said in a motion filed Monday that if defense lawyers called upon controversial Nobel Prize-winning scientist Kary Mullis, Harmon wanted to raise questions about Mullis’ unorthodox views and personal habits, including his admitted drug use. William Thompson, a defense attorney and critic of some DNA applications in criminal cases, responded that a scientist’s personal habits are irrelevant to his testimony on another topic.
Illustrating that point, Thompson cited Sigmund Freud’s reputed use of cocaine, Linus Pauling’s unconventional and enthusiastic advocacy of Vitamin C and Albert Einstein’s out-of-the-mainstream views on marriage and socialism. None of those, the defense lawyer argued, diminished the importance or validity of their landmark work.
Thompson accused Harmon of waging campaigns of harassment against defense experts and circulating embarrassing personal information about them. In addition, Thompson asked Ito not to let Harmon ask Mullis about his drug use since it would be irrelevant unless there was a suggestion that Mullis was under the influence at the time he was testifying.
When Thompson suggested that even Harmon, a wry lawyer known for his combativeness, would not have the “chutzpah” to ask such a galling question, Ito interrupted: “I don’t for a moment doubt Mr. Harmon’s chutzpah to do anything.”
Harmon shrugged and smiled. Moments later, he proved Ito right by suggesting that the defense team should check Mullis into a detoxification center before his testimony to ensure his sobriety.
Although the remark may have been meant in jest, some legal analysts were stunned.
“Rock Harmon’s suggestion that Kary Mullis enter a detox center before he takes the stand simply confirmed Prof. Thompson’s point that Harmon is engaging in a campaign to intimidate and deter scientific experts from testifying for the defense,” UCLA law professor Peter Arenella said. “It was bad lawyering and more importantly, unconscionable behavior on Harmon’s part.”
Ira Reiner, a former Los Angeles County district attorney, was even harsher: “Ito should have come down on (Harmon) so hard that a year from now Harmon would sit bolt upright at night in a cold sweat thinking about what Ito did to him.”
Ito took no action after Harmon’s comment, and adjourned Thursday’s hearing without ruling on the various prosecution and defense motions seeking to clarify the limits of the scientific evidence and testimony. In January, Simpson waived his right to contest certain aspects of the DNA evidence, but he had no sooner given that waiver than the two sides began arguing about precisely what rights Simpson had given up.
Although that issue remains unresolved, prosecutors nevertheless are expected to begin calling their first witnesses today on the subject of evidence collection. The initial witnesses did not perform the DNA tests, so their testimony may not be affected by Ito’s ruling on the DNA issues.
According to prosecutors, DNA tests have revealed that blood with Simpson’s genetic characteristics was found at the scene of the crime. Drops from inside his Ford Bronco contain genetic markers resembling those in the blood of Simpson and both victims, as does blood from a glove found on his estate. And socks found in Simpson’s bedroom were tested last fall and found to contain genetic characteristics akin to those in Nicole Simpson’s blood, authorities say.
Hair and fiber samples also connect items found at the crime scene to Simpson, prosecutors say, and suggest a link between the victims and the bloody glove discovered outside Simpson’s house. Defense lawyers have dismissed that evidence as corrupted and contaminated by sloppy handling or by deliberate attempts to frame Simpson.
Thursday, one defense lawyer also said that a knit cap found at the crime scene contained a hair that does not match Simpson’s. The lawyer said Simpson’s team wants more information about that hair, which he said is now missing and which he contends could help suggest that Simpson was not the culprit.
Even as prosecutors prepare to introduce their physical evidence, they still have a few loose ends to tie up. Some domestic violence witnesses have been relegated to the end of the government case, and prosecutors have said they may call another witness or two to elaborate on the government’s so-far-inconclusive attempts to track Simpson’s baggage.
Prosecutors have suggested that Simpson discarded a bag while at Los Angeles International Airport on his way to catch a flight to Chicago less than two hours after the murders were committed.
According to the transcript of a sidebar conference released Thursday, Deputy Dist. Atty. Marcia Clark told Ito that one witness who was at the curb at LAX as Simpson was checking his bags “will state that he saw Mr. Simpson reach down, then reach back up, and go into his bag and zip it up.”
Clark also said the witness would corroborate the testimony of an LAX skycap who said he saw Simpson standing near a trash can as his bags were being checked in for the flight. Simpson’s lead trial lawyer, Johnnie L. Cochran Jr., accused Clark of “grabbing at straws” with that line of questioning, since no witness has come forward to say that Simpson ever discarded anything in the trash can.
The discussion about those witnesses prompted a joking exchange between the judge and lawyers, whose sidebar conversations often are more relaxed than their more formal presentations when the jury is present.
“I helped build the airport, so I know about that airport,” said Cochran, who served for years as a member of the Airport Commission.
“Then I have many bones to pick with you,” Ito responded.
Deputy Dist. Atty. Christopher A. Darden, who delights in jabbing at his friend and adversary, chimed in as well: “You haven’t done an honest day’s work in your life,” Darden told Cochran.
In addition to the airport witnesses, prosecutors also want Simpson friend and lawyer Robert Kardashian to testify about his handling of at least one of Simpson’s bags. On the day after the murders, Kardashian was seen walking away from Simpson’s estate with a garment bag, a scene that has attracted considerable media interest even though prosecutors have never alleged that the garment bag contained relevant evidence in the case.
Kardashian had been expected to testify Thursday, but Ito gave his lawyer, Janet Levine, a week to prepare a response to the prosecution attempt to have him take the stand. Afterward, Levine said she hoped that there would be no need for Kardashian to testify.
“I hope I convinced the prosecution to drop the whole idea of calling him as a witness,” she said. “It’s just not an appropriate action under these facts and circumstances.”
Among other things, Levine noted that Kardashian is a lawyer entitled to hold protected conversations with his client, Simpson. That could cover contact he had with Simpson on the day after the murders, she said, even though Kardashian was not an active lawyer at the time.
Some other legal experts disagreed, saying that while Kardashian’s conversations with Simpson after reactivating his status as a lawyer would certainly be privileged, the contact on the day after the murders would not.
“The bottom line is, he has an attorney-client privilege that would protect any conversations with O.J. Simpson,” Loyola Law School professor Laurie Levenson said. “But he may not have a privilege for his actions, especially if he inserted himself into the chain of custody for a piece of evidence, like the luggage.”
Although jurors did not hear from Kardashian on Thursday, they did listen to the brief testimony of one other witness, a security company official named Susan Silva. Silva, director of administration for Westec Security, crisply and efficiently fielded questions from both sides about the security system at Simpson’s home.
She said, for instance, that if the alarm had been on at Simpson’s house on the night of the murders, anyone entering the house would have had the alarm code and would have had to enter it on a pad next to the front door or near a door in the garage. Otherwise, Silva said, Westec would have been alerted and would have a record of the alarm going off.
That could help support the prosecution by providing an explanation for why Simpson allegedly walked into his house through the front door after the murders rather than going around to the back of the house, where he would have been less likely to have been seen by a limousine driver waiting outside a gate at his estate.
But prosecutors have never offered evidence that the alarm was on at the time, a point emphasized by Shawn Chapman, a member of Simpson’s legal team who made her first appearance questioning a witness Thursday. In contrast to some of her counterparts, Chapman, the youngest defense team member, made her points quickly, checking them off on her legal pad one at a time.
Simpson and Cochran both beamed at her brief performance and congratulated her as she sat down.
As the prosecution shifts to its physical evidence, the focus of the case and the lawyers presenting it will change. The leading trial lawyers will give way to DNA experts, and the next set of witnesses will focus on the steps used to collect and preserve evidence to prevent its contamination.
First up is expected to be Dennis Fung, a Police Department criminalist who supervised the collection of evidence from Simpson’s house and the Bundy Drive crime scene. Deputy Dist. Atty. Hank Goldberg, who has yet to handle a witness in the case but whose legal arguments have won him praise, is scheduled to handle Fung’s testimony for the prosecution.
Fung came in for sharp cross-examination at last summer’s preliminary hearing and is expected to face an even rougher time at the trial. Fung is expected to take the stand today, though Ito has asked lawyers to meet with him in chambers first thing this morning to resolve the latest round in their continuing arguments about sharing evidence.
Times legal affairs writer Henry Weinstein contributed to this article.