Prosecutors Play Video to Counter Defense Charge

Producing their own videotape to counter one offered by lawyers for O.J. Simpson, prosecutors in the former football star’s murder trial attempted Monday to debunk the notion that police had spent an evening tainting evidence with a vial of Simpson’s blood.

The latest videotape in what is surely history’s most thoroughly televised murder investigation shows Los Angeles Police Detective Philip L. Vannatter arriving at Simpson’s Rockingham Avenue estate at 5:16 p.m. on June 13, a few hours after Simpson gave police a sample of his blood. In Vannatter’s hand as he walks away from his car is a gray envelope resembling the one that allegedly contained the vial of Simpson’s blood.

On the tape played Monday, Vannatter can be seen heading into Simpson’s house. Criminalist Dennis Fung testified that a shot at 5:18 p.m. shows him in the foyer of the home with that same envelope and a plastic garbage bag in his hand.

The sequence of shots--the most detailed and time-coded set presented thus far on the blood vial issue--was offered by Deputy Dist. Atty. Hank Goldberg to demonstrate the prosecution’s contention that Vannatter gave the blood to Fung on the afternoon of June 13, not the following morning, as the defense has alleged.

That transfer has assumed large significance in the case because Simpson’s lawyers have suggested that both Vannatter and Fung lied about the timing, and have used the accusation to bolster their contention that police conspired to frame Simpson in the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.

Simpson has pleaded not guilty, and his lawyers have waged an aggressive effort on his behalf. Monday marked the 13th week since opening statements in a trial that still is far from over.

As the trial resumed Monday, Simpson attorney Robert L. Shapiro apologized outside the jury’s presence for joking last week about Fung and passing out fortune cookies to some members of the press. “These are from Hang Fung Restaurant,” Shapiro said as he handed out the cookies.

Shapiro’s actions drew some fire last week, and Police Chief Willie L. Williams was among those who publicly called on the lawyer to apologize.

Shapiro, who has long publicly lamented the entry of race as an issue in the Simpson defense, said he spent the weekend with a “heavy heart” and apologized to Fung and to any members of the Asian American community whom he might have offended.

“I was the only one responsible,” Shapiro said, after noting that he and not lead trial lawyer Johnnie L. Cochran Jr. had handed out the cookies and made a pun out of Fung’s name. “If any person or persons were offended, my sincere and most humble apologies.”

Superior Court Judge Lance A. Ito, arguably the nation’s best-known Asian American jurist, thanked Shapiro for his apology and quickly moved on.

Ito Loses Patience

But after warning the lawyers last week about his growing impatience with delays in the trial, Ito was short-tempered with attorneys Monday, at one point uncharacteristically barking at a defense lawyer. Barry Scheck, one of Simpson’s legal DNA experts, repeatedly asked to introduce a proposed instruction to the jury despite Ito warning that he did not want to waste time with that issue Monday since he had scheduled consideration of it for Wednesday.

After Scheck ignored Ito’s direction several times, the normally patient judge exploded in frustration: “Mr. Scheck, I’m going to tell you for the fourth time: No. Sit down.”

Chastened, Scheck said “all right” and quickly retook his seat.

Simpson’s lawyers have complained about what they say is Ito’s pro-prosecution bias, and a sidebar transcript released Monday shows that they reinforced that contention last week.

“I would like to put some observations on the record regarding the preference that the court is paying toward the prosecution when they violate the court rulings and the harsh tones that the court uses, particularly toward Mr. Scheck and Mr. (Peter) Neufeld when they do some things,” Shapiro complained. “It comes very one-sided from my point of view.”

But Deputy Dist. Atty. Christopher A. Darden dismissed the defense’s argument as a “non-issue” and retorted that the public perception of the trial is that Ito actually is more deferential to the defense than to the government team.

After hearing both arguments, Ito responded: “I’m glad to see both sides feel they’re being treated badly by the court. That means it’s pretty even.”

It is unlikely to mark the last accusation of judicial favoritism, however. Defense lawyers still are steaming over Ito declining immediately to admonish the jury last week about the prosecution’s handling of one piece of evidence--a slight that they groused was only the latest example of his unwillingness to rule against prosecutors.

Sources close to the Simpson camp said the lawyers are drafting a motion addressing what they say is Ito’s pro-prosecution bias. The motion could be filed as early as today, sources said.

‘Very Methodical’

Monday marked the first full court session that Fung has had to explain mistakes and inconsistencies in his testimony elicited during five days of tenacious cross-examination. Defense lawyers hoped the overall effect would be to diminish the criminalist’s credibility and to erode the jury’s faith in the evidence that he helped collect.

Goldberg began the task of rebuilding Fung’s credibility last week, but had only a brief opportunity, which he used to sarcastically belittle the defense’s conspiracy theory. Among other things, he elicited Fung’s testimony that the criminalist barely knew the detectives who handled the Simpson case, raising the question of how and why he would have conspired with them to frame Simpson.

Monday, Goldberg posed his questions less theatrically and the flow of his presentation initially was hampered by his struggles with the videotape equipment. But once Goldberg was on track, the prosecutor methodically touched on many of the issues that Scheck had raised during his long cross-examination.

Fung, appearing more rested and relaxed than he did by the time cross-examination had concluded, confidently fielded Goldberg’s inquiries, apparently grateful for the chance to defend his testimony and reputation.

The audience and jury, however, seemed less than riveted. A few spectators dozed during the afternoon session, and as the two sides headed to Ito’s sidebar for one of the conferences that have regularly interrupted testimony, the judge allowed the panelists to stand and stretch. The reason: Ito said he thought they looked tired.

In response to the prosecutor’s questions, Fung said he had never meant to mislead the grand jury or the judge who presided over Simpson’s preliminary hearing when he gave different responses to some questions posed to him during those sessions. The discrepancies, he said, were partly because some of the earlier questions were vague and partly because he interpreted them differently.

For example, Scheck made much of Fung’s grand jury testimony in which the criminalist said he had collected blood swatches from the Rockingham estate and from the crime scene. During the trial, Fung said his less experienced partner, Andrea Mazzola, actually had lifted the stains off the ground.

Scheck leaped on that inconsistency and accused Fung of initially trying to downplay the significant role played by Mazzola, an entry-level criminalist who had only worked at a few other crime scenes.

Monday, however, Fung said in response to Goldberg’s questions that he considered the collection process more than the relatively simple mechanical procedure of swabbing samples. In fact, Fung said, the process involves finding the samples, identifying them, logging them and handling them. Fung added that he had participated and supervised that entire process and that his initial responses were intended to convey the role that he played in the collection of evidence.

Moreover, Fung testified that he approved of the work Mazzola did, an observation that cuts against the defense contention that she was inexperienced and ill-equipped to participate in such an important case.

“She was very methodical,” Fung said.

Mazzola, who has been ill, is expected to be the next witness called by prosecutors once Fung is off the stand.

Turning the Tables

Exploring one particularly delicate area, Goldberg confronted Fung with scientific literature on the subject of evidence collection, including work by one of the defense’s most highly touted experts, Dr. Henry Lee--whom Goldberg mischievously attempted to describe as a proponent of DNA testing, a point that defense attorneys objected to since Lee is one of their experts and they are attempting to challenge the reliability of the DNA test results in this case.

Goldberg also read an excerpt from a book that Lee co-wrote in which the authors say no crime scene investigation is perfect and thus authorities are vulnerable to second-guessing.

According to prosecutors, DNA tests have shown that blood with Simpson’s genetic characteristics was found at the crime scene, in his Ford Bronco and at his estate. DNA tests also, they say, have revealed the presence of blood resembling that of both victims in all three locations. Together, the prosecution maintains that the droplets form a trail of blood linking Simpson to the crimes.

Citing Lee’s work, Fung said experts do not demand that evidence collectors sterilize their tweezers after lifting each blood sample, only that they use clean instruments. The defense has suggested that dirty instruments and sloppy techniques could have contaminated samples that the police collected--a fundamental element of the defense assault on the physical evidence.

But Fung testified that if samples had been contaminated by bacteria or degraded by their packaging or storage, they would not have yielded false results implicating Simpson. Instead, they would have yielded no results, he said. That opinion is widely shared by experts unconnected with the Simpson case, and forms a mainstay of the prosecution rebuttal to the defense’s attack on the reliability of physical evidence and the DNA analysis performed on some of those items.

Concluding his questioning Monday, Goldberg asked whether Fung or Mazzola had done anything that would cause Simpson’s blood to show up at the Rockingham estate. Fung said no.

Goldberg asked whether the criminalists had done anything that would cause the blood of Simpson or either victim to be found in Simpson’s car. Fung said no again.

Finally, Goldberg asked, did either of them do anything that would allow Simpson’s blood or hair to show up at the crime scene. Again, Fung said they did not.

Defense attorneys objected to those questions and answers, but Ito allowed them to stand. Satisfied, Goldberg completed his round of questioning and yielded Fung to Scheck, who immediately raised again the specter of a cover-up by asking the witness whether he was attempting to hide his own mistakes or those of others. Fung denied it, but Scheck will continue questioning the criminalist today.

Other Investigations

While the courtroom proceedings have been dominated by the discussion of physical evidence and its implications in the case, investigations are continuing into other aspects of the government case and into the jury itself.

A transcript of a sidebar conference from last week reveals that prosecutors have obtained a series of tape-recorded conversations between a book author and Brian (Kato) Kaelin, a once virtually unknown actor who has leaped to fame as Simpson’s house guest.

When he was questioned on the stand, Kaelin denied contracting to write a book, but prosecutors--who called Kaelin to the stand, only to turn on him, declare him a hostile witness and suggest that he was shading some aspects of his testimony to favor Simpson--now say they have uncovered an unsigned contract involving him, a writer and a publisher.

Prosecutors had earlier shared the tapes with Ito under seal, and the judge temporarily withheld them from the defense. Monday, however, he turned them over to Simpson’s lawyers, and sources said a book deal at least at one time had appeared to be in the works--raising questions about Kaelin’s credibility, at least on that point.

According to publishing industry sources in New York, Kaelin and his co-author, writer Marc Elliott, had reached a verbal agreement with St. Martin’s Press just before Kaelin took the stand on Tuesday, March 21.

The collaborators reportedly had agreed to deliver a book entitled “Star Witness: My Life with Nicole and O.J. Simpson,” which would provide details about life in both of the Simpsons’ households, as well as about their marital relationship.

St. Martin’s reportedly had agreed to pay a $250,000 advance and had set a production schedule that would have put the book on sale by the end of May.

Sources, in fact, said the publisher was expecting delivery of a manuscript on the Monday before Kaelin took the stand, but that it never was received. Reportedly, Kaelin and his attorneys had become convinced that sale of such a book might violate California law. According to sources, St. Martin’s was greatly disappointed, since it was willing to mount a court challenge to the statute.

While prosecutors ferreted out information about Kaelin, Ito appointed himself as an investigator into allegations that the jury in the case is divided and sniping along racial lines and that sheriff’s deputies are promoting the racial divisions. Those allegations were leveled by excused juror Jeanette Harris, who made them first in television interviews and later in sworn testimony after Ito ordered her back to his courtroom to discuss her negative reaction to her jury service.

Although Ito did not inform the remaining jurors and alternates about the substance of Harris’ comments, he told the panelists that he would talk to them individually over the next few days.

“Some matters have come up that have been brought to my attention regarding specifically issues that impact our jurors,” Ito told the jury, adding that he would call the members in one at a time, perhaps getting to as many as three or four a day.

Ito was scheduled to begin that process in his chamber Monday, but delayed it after Simpson insisted on his right to be present and Cochran presented a court case supporting that right. Ito said he would review the case and decide how to proceed.

Times staff writer Tim Rutten contributed to this article.

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Blood Sample Dispute

The handling of a vial of O.J. Simpson’s blood has become a significant issue in the murder trial. Simpson’s lawyers contend that Detective Philip L. Vannatter kept the blood overnight, and suggest he could have used it to stain other items of evidence. Prosecutors say Vannatter gave the blood to a criminalist the same afternoon it was drawn.

PROSECUTION TIMELINE

June 13

* Between 2:30 and 3:30 p.m.: Simpson gives police blood sample.

* 5:12 p.m.: Criminalist Dennis Fung puts most Rockingham Avenue evidence in crime scene truck, then goes back inside with Andrea Mazzola, an entry-level criminalist.

* 5:16 p.m.: Vannatter arrives with gray envelope containing the blood vial, goes inside Simpson’s estate.

* 5:18 p.m.: Vannatter gives Fung the blood vial. Fung puts it in a black plastic bag.

* 5:42 p.m.: Fung and Mazzola leave Simpson estate. Mazzola carries the bag, puts it in the front of the crime scene truck.

DEFENSE TIMELINE

June 13

* Between 2:30 and 3:30 p.m.: Simpson allows police to take a blood sample from him at Parker Center.

* 5:20 p.m.: Vannatter, the police detective who had the vial of Simpson’s blood, arrives at Simpson’s Rockingham Avenue estate.

June 14

* Morning: Fung receives the blood vial.