THE O.J. SIMPSON MURDER TRIAL : Ito Rebukes Simpson Prosecutors for Errors : Trial: Criticism involves prohibited evidence. LAPD criminalist admits altering part of his testimony.
Prosecutors in the O.J. Simpson murder trial struggled on two fronts Tuesday as Superior Court Judge Lance A. Ito chastised them for a series of errors and a key witness admitted under cross-examination that he had changed important elements of his testimony.
Forced to grapple with another dispute in the contentious trial, an exasperated Ito ordered the government team to prepare inventories of its evidence, twice told the jury to disregard testimony and exhibits introduced by prosecutors, urged Deputy Dist. Atty. Hank Goldberg to apologize for his admitted mistakes, and wryly warned the government lawyers that their punishment could have been worse.
The latest evidence fights twice interrupted testimony in the trial, delaying the morning session and then forcing a brief afternoon recess. While on the stand, Los Angeles Police Department criminalist Dennis Fung testified about blood evidence that he collected, showing the jury more than a dozen spots and smears that he removed from the inside of Simpson’s white Ford Bronco.
That testimony and the photographs that accompanied it offered graphic--though bitterly disputed--support for the prosecution’s contention that Simpson committed the double murder, fled the scene in his Bronco and returned home to meet a limousine that took him to the airport. Simpson has pleaded not guilty to the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman.
But while the blood drops helped prosecutors build their case against Simpson, defense attorneys began to take aim at the integrity of that evidence Tuesday afternoon by sharply questioning Fung about the role played by Andrea Mazzola, a criminalist whom Fung was training the day after the murders. Fung told a grand jury last summer that he personally collected blood and other evidence at the murder scene and at Simpson’s house; in fact, he testified Tuesday, Mazzola actually did most of the work.
The defense played a videotape of Mazzola handling different items of evidence without changing her latex gloves, a procedure that Fung had disparaged in earlier testimony. The defense contends that it is an example of sloppy work by investigators.
Barry Scheck, a member of Simpson’s defense team, confronted Fung with his testimony from previous hearings and suggested that he had omitted references to Mazzola during those sessions because he was concerned that an inexperienced criminalist was playing an important role in such a high-profile case.
Fung denied that he had intentionally downplayed the importance of Mazzola’s role, but conceded that his testimony about her had changed over time.
“That testimony wasn’t accurate, was it?” Scheck asked Fung at one point, referring to his grand jury appearance.
“That I personally did all that stuff, no,” the criminalist answered.
After another question, Scheck added: “And that testimony you gave the grand jury was under oath?”
“Yes,” Fung responded.
Fung appeared uncomfortable with Scheck’s persistent attack, pausing at one point and asking to be allowed to explain himself. As he left court, Fung was asked how he felt about the first few hours of cross-examination. “It was grueling,” he said.
One juror in the back row had appeared to pay especially close attention to that testimony, but all the panelists seemed to follow the testimony closely. Most took copious notes.
That could undermine Fung’s credibility with the jury, a prospect that the government attorneys can ill afford, since Fung played an important role in the collection of scores of important pieces of evidence.
Outside the jury’s earshot, meanwhile, defense attorneys found support from Judge Ito, whose rulings and caustic remarks Tuesday marred the government’s presentation. Ito became increasingly irritated with prosecution lawyers as the day progressed, especially after Goldberg displayed an exhibit that contained information that Ito already had told the jury to disregard.
“I don’t mean to embarrass you on this, but you have to admit that it’s incredible,” Ito said after Goldberg blundered the second time.
After a pause and another brief exchange, Ito apologized to Goldberg for snapping at him but added: “Don’t take it personally, but you’re not making my job any easier today.”
Earlier, Ito had chastised the prosecution for failing to promptly turn over a videotape made by police on the day after the murders but not given to the defense until late last month. Prosecutors explained that delay by saying they were unaware of the tape until recently and by adding that police only made the tape to protect themselves in the event that Simpson accused them of breaking or stealing anything during their search of his home.
Because of that, police and prosecutors said, the tape was shot and then languished for months in a drawer at police headquarters. But defense attorneys were unsympathetic, noting that they were punished for failing to turn over an audiotape of one of their witnesses even after explaining that a defense investigator had not told them of the tape until the issue surfaced in court.
Ito appeared to mostly share the defense’s view. He ordered the prosecution to create an inventory of every videotape in its possession related to the Simpson case. Ito also directed the prosecution to give him an inventory of all documents and letters relating to the government’s search for evidence that might link Simpson to shoe prints found at the crime scene, another area about which defense attorneys have complained they are not being kept apprised.
Despite Ito’s oft-disobeyed rule that the lawyers not argue matters after he has ruled, Deputy Dist. Atty. Cheri Lewis urged him to reconsider. Ito did not budge.
As with so many days in the Simpson trial, the morning arguments delayed testimony while the jury languished nearby. When Fung returned to the stand, about an hour before lunch, Ito apologized to the jury and told the panelists that he was planning to hold all future legal debates at the end of the court day. He then read an instruction that prosecutors had hoped that the jury would never hear.
In the instruction, Ito told jurors that the prosecution had violated an agreement not to elicit testimony about a baggage tag and plane ticket belonging to Simpson and that they were to pretend that they had never heard Fung mention seeing those items.
“Disregard the testimony of Mr. Fung regarding the airline ticket and baggage tag,” Ito told the jury. “You must treat it as though you have never heard it.”
That instruction came in response to a question posed Monday by Goldberg. As the prosecutor asked Fung about his evidence collection on the day after the murders, Fung mentioned the baggage tag and airline ticket.
Once Ito read the instruction to the jury, the matter appeared to be resolved. But later, Goldberg displayed a property report that contained references to the same tag and ticket that Ito earlier had ordered the jury to disregard.
Scheck glanced at the exhibit before it was displayed, but objected once he noticed that the forbidden items had been aired to the jury again. Ito sent the jury out of the room and strode from the bench into the jury box to see whether the panelists had been able to read the document.
Ito stared at the exhibit and shook his head in amazement.
“If you recall, that’s what caused me to read the sanctions instruction to the jury,” he said after returning to the bench. “Now the prosecution has chosen to show this to the jury again.”
With that, Ito sighed deeply and stared at Goldberg.
“I did not take it upon myself to redact it,” Goldberg acknowledged sheepishly. “I wasn’t thinking about that at all.”
Ito and Goldberg wrangled for several minutes over how to handle the prosecutor’s mistake, with Ito repeatedly expressing his amazement that Goldberg had done such a thing. Defense attorneys huddled and occasionally chimed in with suggestions on how to punish their opponents.
Ito decided to again order the jury to disregard the exhibit, but he described its inclusion as a mistake rather than a deliberate attempt to slip something into evidence.
Although that was milder than what the defense had proposed, some legal analysts nevertheless said they believe Ito had overreacted, given the relative insignificance of the baggage tag and airline ticket--which neither side has suggested bolsters the case against Simpson.
“It is understandable that Judge Ito would be angered when the prosecution presented an exhibit that made reference to items of evidence that were not supposed to be presented to the jury, especially when this was the second time in the same day,” said Peter Arenella, a UCLA Law School professor. “However, Judge Ito’s upbraiding of prosecutor Hank Goldberg appeared to be an overreaction since there was no possible tactical advantage that could have been gained by this exhibit’s inclusion of these two items.”
Arenella added that the public excoriation of Goldberg was particularly unfortunate because Goldberg is one of the few lawyers in the case who has largely steered clear of the vitriolic exchanges between the two sides.
“It is somewhat ironic and unfortunate that one of the most calm, confident and careful lawyers becomes the object of Judge Ito’s wrath,” Arenella said.
Despite the interruptions, Fung completed his direct examination at the hands of the prosecution Tuesday with a methodical recitation of what he had done in collecting evidence.
Fung, who has spent 11 years with the LAPD, described the steps that he took to collect and test bloodstains and other items. Among the items he detailed Tuesday were bloodstains in Simpson’s foyer, as well as in his master bathroom, bedroom and Ford Bronco.
Although they have not yet heard testimony about DNA tests performed on those stains, the jury in the coming weeks is expected to hear from prosecution witnesses who will say that the blood in the car contained some genetic markers identical to those of both victims and Simpson. The blood in the foyer, according to prosecutors, resembles that of O.J. Simpson, while they say bloodstains on his socks contain genetic characteristics suggesting that it came from Nicole Simpson.
Together, those drops and the ones at the crime scene form the prosecution’s so-called “trail of blood,” which they argue links Simpson to the double homicide.
Simpson’s attorneys, however, have countered that the collection and testing of the blood was so sloppy that the results cannot be trusted. Coupled with what they say was a police conspiracy to frame Simpson, the defense lawyers maintain that the case against their client is hopelessly marred.
As the day drew to a close, Ito sent the jurors home with an admonition that seemed to reflect the widely circulating reports of tension among some panelists. According to sources, some jurors have been at odds for weeks, and though some of the tension was reduced by the recent dismissal of a juror who allegedly had trouble getting along with his colleagues, other disputes have lingered.
A source also confirmed that another juror is under investigation for failing to disclose pertinent information on her juror questionnaire. Five jurors already have been excused from the panel.
“Be kind to each other, all right?” he asked plaintively before dismissing them. Some smiled in response. Others simply packed up and left.
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