Fung Testimony Ends; Ito Starts Jury Inquiry

Concluding the most exhaustive questioning of any witness so far in the murder trial of O.J. Simpson, a defense lawyer Tuesday repeatedly accused criminalist Dennis Fung of shading his testimony to favor prosecutors.

Superior Court Judge Lance A. Ito, meanwhile, launched a delicate and potentially significant jury investigation.

The unusual jury inquiry began behind closed doors after Ito denied Simpson’s request to be present. The judge is trying to gauge whether the jury is divided and fighting along racial lines, as alleged by excused juror Jeanette Harris, who also accused deputies from the Los Angeles County Sheriff’s Department of promoting the divisions.

Setting aside time to individually grill the panelists, Ito called off testimony for today and plans to use the entire day to question jurors about their experiences as members of the sequestered panel. Attorneys for each side will be present, but Simpson--who has pleaded not guilty to the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman--will not.

Although Ito theoretically could declare a mistrial if he finds pervasive misconduct by members of the jury, few experts consider that likely. When questioned under oath, Harris did not report any instances of actual misconduct by her former colleagues on the panel.

During the initial questioning Tuesday, Ito interviewed four jurors, sources said. At least one of the panelists reported problems with the sheriff’s deputies, but all denied discussing the case or committing any other misconduct, the sources added.

The final round of cross-examination of Fung by attorney Barry Scheck covered little new ground Tuesday, but the lawyer used his questioning to explore minute details of Fung’s testimony and to focus on the central defense theme in the case: that police conducted a sloppy investigation and then covered up their mistakes and misdeeds by tampering with evidence and falsifying records.

Fung, who at times has seemed lost during the aggressive challenges to his competence and credibility, fared better Tuesday, occasionally wavering in his answers but more often addressing Scheck’s questions directly. Nevertheless, by the time his testimony finally concluded after eight days on the stand, Fung seemed dumbfounded to have become such a central player in the case.

“Have you ever testified in a case where you were on the witness stand for eight days?” Deputy Dist. Atty. Hank Goldberg asked at the end of his fourth round of questioning, a round that in courtroom vernacular goes by the ungainly name of “re-re-redirect testimony.”

“Never,” Fung answered, breaking into a short, soft chuckle.

“Are you going to be glad to be off?” Goldberg asked.

“Very,” Fung said with an ear-to-ear smile.

With that, Ito dismissed the criminalist after warning him that he could be recalled to the witness stand later and directing him not to discuss his testimony with anyone but the attorneys in the case.

Strange Farewells

As he left the courtroom, Fung made a round of farewells that stunned observers: After first shaking the hand of Deputy Dist. Atty. Christopher A. Darden, he swung by the defense table, where he smilingly said goodby to the group of lawyers who have made it their mission to attack every aspect of Fung’s performance in the case.

Fung enthusiastically shook hands with lead Simpson attorneys Johnnie L. Cochran Jr. and Robert L. Shapiro, both of whom had publicly boasted about their team’s effectiveness in raising questions about Fung’s credibility. Shapiro had punctuated those remarks by passing out fortune cookies and making a joke out of Fung’s name--actions that drew the wrath of some observers. Shapiro later apologized publicly and on Tuesday promised to back that up with a written apology.

After shaking hands with the defense lawyers, Fung even more mysteriously reached for Simpson’s hand and exchanged farewells with him as jurors filed out of the courtroom. As Fung and Simpson exchanged their handshake, Scheck, who spent more than a week grilling Fung, warmly addressed him. “Thank you,” Scheck said.

Those farewells ended Fung’s long stint in the Simpson trial spotlight, but in his final session, he was subjected to a round of defense questioning intended to demonstrate that he was incompetent at best and a liar at worst.

The intense interest in Fung’s credibility surrounds his unique role in the murder investigation: Nearly all the physical evidence passed through his hands, and the defense has waged an aggressive campaign to discredit that evidence, an approach that has made Fung’s testimony central to their effort.

Credibility Challenged

As a result, every aspect of the criminalist’s testimony has been subjected to close scrutiny. Occasionally, Fung has admitted not being able to remember all the details of his investigation, and some elements of his account have shifted--changes he has generally attributed to his memory being refreshed by videotapes or other evidence but which defense lawyers have suggested actually are the result of him sidestepping to avoid being caught in lies or bending his account to favor the prosecution.

“Is one of the habits you have when you testify to use a selective memory?” Scheck asked during Tuesday’s testimony.

“No,” Fung answered.

“Do you have a habit of being vague when you think it’s going to help the prosecution’s case?” the defense lawyer continued.

“No,” Fung said again.

“Do you have a habit of being specific when you think it’s going to help the prosecution’s case?” Scheck then asked.

With a hint of frustration this time, Fung responded: “I answer the questions to the best of my ability.”

Scheck was obviously unconvinced and suggested that Fung had lied or covered up the truth in several respects. Scheck asked whether Fung had altered his testimony about the circumstances surrounding his discovery of a pair of socks inside Simpson’s home and also asked whether the criminalist considered it his job to interview witnesses at the crime scene.

In each instance, Scheck confronted Fung with transcripts that appeared to show him changing aspects of his testimony, but Fung attributed the differences to misunderstandings or subtle differences in wording, not to substantive alterations of his account.

The disputes between lawyer and witness often centered on picayune details in Fung’s testimony, which has stretched over eight court days beginning in early April and concluded only after he had covered some aspects of it five or six times.

By the time it was over, Fung had testified four times about a blue piece of plastic that had been recovered just outside the fence of Simpson’s house but which has no known evidentiary value in the case. Scheck nevertheless questioned Fung at length about the item, which was collected by Detective Mark Fuhrman.

Goldberg responded in kind, even going so far as to ask Fung whether the item appeared “crumpled” or whether it was better described as “wrinkled.”

Ito, whose patience has been exhausted by the growing pressure to speed up the trial and by the seemingly endless questioning of Fung, interjected that jurors had seen the item for themselves and thus did not need Fung’s description to aid them.

“Really,” Ito said, his voice thick with exasperation. “The jury saw it when it came out. The jury saw it when it went back in.”

Still, Fung responded that “there were wrinkles on it.”

Each side questioned Fung four times during his appearance as a witness, leaving virtually no aspect of his testimony unexplored. In his last day, Fung acknowledged that he occasionally had been flustered by Scheck’s style of questioning, which Goldberg mimicked at one point, shouting and imitating his adversary’s New York accent.

Scheck retorted by asking Fung whether he had been confused by the questions because of the lawyer’s tone or accent. Fung responded that he had not.

Lies Alleged

Outside court, meanwhile, author Marc Eliot said Brian (Kato) Kaelin, Simpson’s guest house tenant and an important witness in the murder case, lied on the witness stand. Eliot said he is cooperating with prosecutors as they try to show that Kaelin shaded his testimony to protect Simpson.

In an interview Tuesday, Eliot said he and Kaelin had collaborated on a manuscript entitled: “Star Witness” and subtitled: “My Life with Nicole and O.J. Simpson: The Whole Truth.”

While on the witness stand, Kaelin had been asked whether he was working on a book about the case, and said he was not. Eliot, a free-lance writer who has written biographies of Walt Disney and Bruce Springsteen, said the two had completed a manuscript, but publishing industry sources said Monday that Kaelin decided not to follow through on a $250,000 book deal because he and his lawyers grew concerned that it might violate California law.

“I heard Kato’s testimony, I realized I was listening to a series of lies, and I was shocked,” Eliot said Tuesday in an interview conducted along with his lawyer, New York attorney Leonard Marks. “I immediately called my attorney because I was concerned that, through the book, I was involved with evasions of the truth and the concealing of vital evidence.”

Kaelin’s criminal lawyer, William Genego, said his client had told the truth. “What Kato said at trial is what he said when he was first interviewed at the beginning of the case by the district attorney and by the defense,” said Genego, one of Los Angeles’ most highly regarded criminal lawyers. “It was the truth then, and it’s the truth now.”

A review of the transcript of Kaelin’s testimony reveals that he never directly denied considering a book deal; he testified only that he had not signed a contract and did not have a deal pending at the time he was on the stand.

“Isn’t it true, Mr. Kaelin, that you have a book proposal out for about half a million dollars right now, don’t you?” prosecutor Marcia Clark asked.

“No,” Kaelin responded.

After several more questions, Clark continued by inquiring: “You don’t have any book proposals out?”

“No,” Kaelin responded. “I don’t want to do a book.”

“Do you plan to write a book in the future, Mr. Kaelin?” Clark asked.

“As of today,” he answered, “no way.”

Marks said that after listening to Eliot’s concerns, he telephoned the prosecutors on the final day of Kaelin’s testimony and spoke to prosecutors Darden and Clark.

“They subpoenaed Marc and, in compliance with that subpoena, we produced approximately 16 hours of audiotapes containing detailed interviews Marc conducted with Kato with no one else present,” Marks said. “Since then, we have been repeatedly thanked by the prosecutors for being honest and cooperating by providing all the information Marc has in his possession.”

Those tapes were first turned over to the prosecution and, on Monday, were given to the defense as well.

Marks, a former federal prosecutor, said it is his belief “that Kato’s testimony was designed to protect O.J. Simpson,” precisely the contention that prosecutors made after calling Kaelin to the stand. During one dramatic point in Kaelin’s testimony, Clark became so frustrated with his answers that she successfully appealed to Ito to have the now-famous guest house tenant declared a hostile witness.

According to Marks: “Kato is in possession of tremendously detailed information based on things told to him by both O.J. and Nicole, as well as on his own firsthand observations of their relationship. He has deliberately concealed most of that information.”

When Eliot and Marks were asked to characterize the collaboration between the author and Kaelin, the lawyer read from a passage he says Kaelin wrote for the manuscript’s acknowledgment page: “During the course of our working together we developed a great working relationship. I went over the material for this book time and time again. The work proved long, intense and difficult. I think Marc is an incredibly talented writer, undoubtedly the best collaborator anybody ever had.”

Defending Police

While Fung was completing his final day on the witness stand--and defense lawyers were mounting their latest attack on the work that he and his colleagues did during the Simpson case--city leaders stepped up a campaign to defend the Police Department from the fallout in the murder trial.

Convening across the street from a huge billboard at the intersection of 1st and Main streets that reads “Support Our LAPD,” a coterie of the city’s top officials rallied to show solidarity with the embattled Police Department and to promote wearing symbolic blue ribbon pins in support of the department.

So far, 50,000 of the pins have been manufactured--paid for with private donations and checks from most City Council members. They are set to be distributed in coming days by council members who contributed.

Police Commissioner Art Mattox, one of those who came up with the idea for the pins, said showing support for the LAPD is important “now more than ever.”

Mattox said that the experience of police personnel in the Simpson trial had pointed out to him that “we have a double standard in the United States where it’s politically correct to bash police officers. We can accept that no longer.”

Mattox was joined by several council members, Mayor Richard Riordan and Police Chief Willie L. Williams, who declared: “We all believe that everyone is entitled to a fair trial and a very rigorous and aggressive defense, but the crap and garbage that has (gone) on for the last 10 months has to stop.”

Times staff writer Ted Rohrlich contributed to this article.

* CHALLENGE FOR ITO: Judge must walk a fine line during jury investigation. A18