Fiery Debate Over Blank Form Stalls Simpson Trial : Courts: ‘This has got to end sometime,’ impatient Judge Ito says of 90-minute fight over two staple holes.

Proving that no issue is too small to bring the murder trial of O.J. Simpson to a halt, the two sides squared off Friday in a heated debate about staple holes in a blank Police Department form, with defense attorneys accusing prosecutors of intentionally hiding the document and government lawyers retorting that the defense had been tripped up by its own tactical maneuvering.

For nearly 90 minutes while the jury whiled away the time in a nearby lounge, lawyers vigorously debated the piece of paper and the prosecution’s responsibility once it had uncovered the document the day before.

Although the debate was protracted and at times trivial--Superior Court Judge Lance A. Ito at one point interjected that “this has got to end sometime”--it centered on a potentially significant prosecution attempt to undermine an element of the defense’s multifaceted conspiracy theory.

Authorities have charged Simpson with the June 12 murders of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman, but Simpson has pleaded not guilty and his lawyers have suggested that the LAPD was out to frame their client.

On Thursday, defense attorney Barry Scheck had closed his cross-examination of a police criminalist with a dramatic flourish, suggesting that a missing staple mark in a document was evidence that the original had been destroyed--bolstering the defense contention of a police conspiracy, complete with a cover-up.

Senior police criminalist Dennis Fung conceded that a document from his notes did not have staple holes and therefore did not match that of other pages in the same package. Scheck then pounced on Fung’s admission that the document was not an original and ended five days of questioning with the ominous cloud of a cover-up suddenly overshadowing all of Fung’s testimony.

Moments later, however, Deputy Dist. Atty. Hank Goldberg produced the original, thoroughly deflating that part of the defense argument and infuriating Scheck, who had requested original copies of all the reports and who had built his questioning around the information provided to him by the prosecution.

On Friday morning, before the jury entered the courtroom, Scheck asked Ito to sanction Goldberg and the other prosecutors and to tell the jury that the government’s actions had been intentionally deceptive.

“It was deliberate,” said Scheck, who delivered a short history of evidence disputes in the case and then gave Ito his version of the defense’s attempts to get the disputed document. “It was intentional. And it was wrong.”

Goldberg, his voice shaking in anger, vigorously protested.

“I am outraged by counsel’s representations and misrepresentations to this court,” said Goldberg, his boyish demeanor giving way to a steelier, angrier side. “And I’ve tried to take three deep breaths in advance, your honor, but I truly am outraged.”

With that, Goldberg launched into his own history of the disputed page, offering such details as his poor copying skills--an issue that has arisen in court before--and what Goldberg said were Scheck’s even weaker abilities with a copying machine. He told, for instance, of Scheck dropping a notebook full of documents and of the feeble attempts by two skilled lawyers to successfully copy what amounts to eight pages of paper.

More important, Goldberg argued, the defense had made a tactical decision to try to surprise Fung with its questioning and as a result had not asked prosecutors whether there was an explanation for the missing page. When that gambit backfired, Goldberg said, defense lawyers sought help from the judge. But he urged Ito not to grant it, saying that the Simpson team had been “hoisted on their own petard.”

Ito Losing Patience

The debate spiraled outward from there, eventually drawing in various other lawyers from both sides. Deputy Dist. Atty. William Hodgman, a relatively rare presence in the courtroom recently, even emerged in court to explain the prosecution’s handling of the document.

Splitting the difference in the latest evidence dispute, Ito ruled that prosecutors had not intentionally withheld the document when it was originally requested and found that because the sheet in question is a blank form, there was “no harm, no foul.”

But Ito also ruled that prosecutors should have immediately shared the document with him and with the defense when they uncovered it during a break in Thursday’s session. Having made that ruling, Ito said he would inform the jury of the prosecution’s failure when the panelists were brought into court.

Ito, however, was talked out of that course of action by Deputy Dist. Atty. Marcia Clark, who argued so fiercely and so spiritedly that Ito had to ask her to slow down because the court reporter was “going cross-eyed” trying to keep up. After Clark and Simpson lawyer Johnnie L. Cochran Jr. exchanged views on that topic, Ito deferred on telling the jury anything until Monday, when he will consider whether to pair his slap at the prosecution with a similar one that prosecutors want him to deliver to the defense for its allegedly late disclosure of videotapes.

The compromise left no one happy.

Clark and her colleagues objected to telling the jury that they had done anything wrong, while Cochran said the defense team was furious that Ito had not admonished the jury immediately about the alleged government error.

“There was no legitimate reason for him not doing it right then,” Cochran said. “We feel very strongly about that, and we will continue to press it.”

The dispute delayed testimony for the morning session, the latest postponement in an on-again, off-again trial whose pace has begun to frustrate Ito. Transcripts of a sidebar conference released Friday emphasized the judge’s impatience as he urged Scheck to speed up his questioning and warned the lawyer that he was losing his audience.

“Counsel, haven’t we done enough with this witness?” Ito asked Scheck during a Thursday afternoon sidebar. “I mean what more do we need to do here? . . . I don’t know if you’re watching the jury, but they’ve stopped paying attention.”

Deputy Dist. Atty. Christopher A. Darden quickly endorsed that observation, according to the transcript. “I think they have had enough smooth defense tactics for the day,” Darden said, intentionally goading the defense lawyers, who rose to the bait.

“I resent that,” Cochran responded. “I resent that remark, ‘smooth defense tactics.’ ”

Explanation by Fung

When the jurors finally returned, they heard more testimony from Fung, who sought to explain apparent contradictions in his earlier testimony and to knock down the defense conspiracy theory. Fung explained that the records that the defense was using in an attempt to portray him as liar were intact and said that the only reason Simpson’s lawyers had them at all was because he had taken it upon himself to preserve them.

In fact, Fung said, he could have prepared new records that would not have had erasures and other marks that the defense has said bear the earmarks of a cover-up.

Moreover, Fung testified that he barely knew the two lead detectives in the case and had never even met Detective Mark Fuhrman, the linchpin of the defense’s conspiracy allegations.

“Did you know Detective Lange or Detective Vannatter prior to the events on the 13th?” Goldberg asked, referring to the lead detectives in the Simpson investigation.

“I had spoken to them, spoken to them on the phone, taken requests from them over the years and had worked personally with them on two to three other cases,” Fung responded.

“Were you social friends at all?” Goldberg asked.

“No,” Fung said.

“And what about Detective Fuhrman,” the prosecutor continued, “did you know him at all?”

“I had never met Detective Fuhrman before June 13,” Fung answered.

That line of questioning was intended to cast doubt on the conspiracy theory by calling the jury’s attention to the prosecution argument that such a conspiracy would have required the participation of many detectives and other investigators, some of whom never met before the morning after the murders. If they can establish that to the jury’s satisfaction, prosecutors would then be in a position to ask a provocative hypothetical question about the alleged conspiracy: Why would so many people who barely even knew each other agree to commit a felony in order to frame Simpson?

Fung, who had been battered by Scheck’s cross-examination for five days and who seemed to tire under the escalating challenges to his integrity, was visibly brighter and more comfortable Friday. At last offered a chance to explain the discrepancies pointed out by Scheck, Fung answered questions crisply and happily, a marked contrast to the long pauses that often preceded his answers to questions from the defense.

For his part, Scheck objected frequently to the questions posed by the prosecutor. Ito often sustained those objections, finding that Goldberg was posing leading or otherwise improper questions to Fung in order to elicit the responses he sought.

Vial of Blood

During his cross-examination, Fung had professed to not remember some details about which Scheck questioned him. One central point of the defense attack involved exactly how and when the criminalist had received a vial containing a sample of Simpson’s blood.

That blood was drawn from Simpson on the afternoon of June 13, and defense lawyers have suggested that Fung did not receive the vial from Vannatter until the following morning. The defense contends that the long lapse would have given Vannatter or others time to sprinkle Simpson’s blood on items of evidence, although sources say that tests of those items so far have not revealed traces of a telltale preservative that was contained in the vial.

To bolster that element of its conspiracy theory, the defense challenged Fung’s testimony that he received the vial at Simpson’s Rockingham Avenue estate and carried it outside to his truck either in his hands, in a brown paper bag or in a metal box.

After viewing defense videotapes, Fung acknowledged that his memory was incorrect and changed his testimony. Fung said he now recalled that he had placed the vial in a plastic garbage bag, as seen on one of the tapes, and that his partner, Andrea Mazzola, had carried that bag to the truck where the evidence was temporarily being stored.

Seeking to erase any impression that Fung had changed his testimony because he had been caught in a lie, Goldberg instead suggested that the witness’s memory was faulty only because the circumstances of his receiving the blood vial had not seemed important at the time.

Pressing the point, Goldberg went on to try to establish why jurors should not be influenced by the fact that no witnesses apparently saw Vannatter give Fung the vial, which Fung said was contained in a gray evidence envelope.

“Did you make it a point,” Goldberg asked, “to call out to people, ‘Hey, everyone, I’m getting the vial. Can everyone gather around so I can have some witnesses?’ ”

Ito quickly upheld an objection to that question, prompting Goldberg to slyly apologize before posing a less argumentative version of the same query: “When you got the blood vial,” he asked, “did you make it a point to try to gather people around you?”

“No,” Fung responded confidently.

Testimony Curtailed

Fung’s brief testimony Friday--the court ends the week with a short day, and so much of the session was occupied by wrangling outside the jury’s presence that the jury heard a little more than an hour of testimony--helped the prosecution recoup some of the ground it lost during Scheck’s cross-examination of the witness.

But Fung still has other hurdles to overcome. During his questioning, for instance, he acknowledged changing aspects of his testimony between his grand jury appearance last summer and the current trial, and he conceded that certain aspects of the evidence collection were not ideal.

He testified, for instance, that he did not keep track of the total number of blood swatches he collected, that some evidence was stored in plastic containers and that much of the evidence sat in his truck for six or seven hours on a warm June day. While experts unconnected with the Simpson case have said those steps were not ideal, they also have noted that they would not account for subsequent DNA test results. According to prosecutors, blood samples from the crime scene, as well as from Simpson’s car and his estate, contained some genetic characteristics identical to those from the blood of the defendant and the two victims.

Nevertheless, the inconsistencies and slip-ups may undermine the jury’s confidence in the overall investigation. If so, that would bolster the defense contention that the probe in the Brentwood killings was so sloppy that the jury should disregard any scientific tests that tend to link Simpson to the crimes.

As a result, Goldberg’s questioning of Fung--set to resume Monday--is expected to focus largely on trying to restore any credibility that he may have lost in the jury’s eyes. That is all the more important, experts say, because testifying after Fung is expected to be Mazzola, a less experienced criminalist whom Fung was supervising on the day after the murders and who played a significant role in collecting the evidence.

At the end of Monday’s court session, Ito has said, he hopes to take the next step in his investigation of allegations that the Simpson jury is divided and bickering along racial lines. Of particular concern is the conduct of three sheriff’s deputies, two of whom were accused by excused juror Jeanette Harris of promoting racial divisions on the panel.

During a closed-door session last week, Darden asked Ito to remove, at least temporarily, the two deputies. Cochran has called for the Sheriff’s Department to step aside altogether and allow others to guard the panel. Ito declined to take any immediate action, saying he wanted to complete his inquiry first.

Lt. John Witt, a spokesman for the Sheriff’s Department, declined to comment in detail Friday but said both deputies remained on duty. On Monday, Ito is expected to begin questioning jurors one at a time about Harris’ allegations. Those sessions will take place in his chambers.

Times staff writer Kenneth Reich contributed to this article.