Transforming an internationally respected forensic scientist into his own witness, a prosecutor Monday elicited criminalist Henry Lee’s endorsement of a type of DNA testing used by authorities to build their case against O.J. Simpson.
That form of DNA testing, known as PCR analysis, was heavily criticized by another defense expert, but Lee, whose easygoing modesty and unparalleled credentials have lent weight to his testimony on Simpson’s behalf, told jurors he used that same technique in his own laboratory. Lee’s examination came on the expected eve of what may be the trial’s most important hearing, Superior Court Judge Lance A. Ito’s consideration of the admissibility of tapes and transcripts featuring the comments of recently retired LAPD detective Mark Fuhrman.
With the fate of the newly uncovered Fuhrman evidence still hanging in the balance, sources said the Los Angeles Police Department probe into the tapes and transcripts was turning up new and potentially unsettling details.
Sources said that in addition to focusing on Fuhrman’s descriptions of two police beating cases, the investigation has uncovered evidence that Fuhrman, and possibly other officers, may have lied to Internal Affairs investigators during the mid-1980s when questioned about Men Against Women, an informal group of male police officers in the West Los Angeles station. And the police probe has unveiled previously unreported racist statements by the detective, the sources added.
All that unfolded outside the jury’s presence, but in court a mostly impassive panel listened attentively as Lee spent another day on the witness stand, this time mostly undergoing questioning by Deputy Dist. Atty. Hank Goldberg.
“Dr. Lee,” Goldberg asked near the outset of his deferential cross-examination, “are you using PCR technology in criminal cases both to include and exclude people as having committed a crime?”
“Yes,” Lee responded confidently.
Denver microbiologist John Gerdes testified that PCR technology was unreliable in criminal cases, but Lee countered by saying that such a determination should be left to forensic scientists, not just to biologists.
“I think forensic scientists should have a good say about what method we should do, what is the reliable procedure, what kind of applications,” said Lee, adding that such a determination should not be “dictated by molecular biologists or other scientists [who] tell us what to do.”
Despite Ito’s concerns last week regarding the jury’s growing weariness, panelists seemed attentive Monday, watching Lee closely, though taking few notes. As the session passed into the afternoon--Ito had advised Goldberg to spend half an hour conducting his cross-examination, but Goldberg used almost the entire day--some of the jurors’ interest seemed to wane.
A few wore quizzical expressions during the late afternoon as Goldberg posed a series of detailed questions about tiles on the walkway. By day’s end, the jurors had given up note-taking altogether.
PCR testing is a less definitive form of DNA analysis than RFLP testing. Both types of analysis were used in the Simpson case and form the bulwark of the prosecution’s contention that Simpson committed the June 12, 1994, murders of Ronald Lyle Goldman and Nicole Brown Simpson. He has pleaded not guilty, but two different labs concluded that blood with his genetic markers was discovered at the scene of the crimes.
And blood with markers matching those of the two victims turned up in Simpson’s car and on a glove that Fuhrman said he found outside Simpson’s home. Moreover, socks discovered in his bedroom were stained with blood matched to that of Nicole Simpson, completing the prosecution’s so-called “trail of blood” from the scene of the crimes to Simpson’s room.
One of the PCR tests also suggested that a stain on Goldman’s boot could have been a mixture of the blood of the two victims--evidence that bolsters the prosecution’s theory that a single assailant committed both killings and dripped blood from the knife onto Goldman’s shoe. Lee has offered testimony that could cast doubt on the single-killer theory--he testified, for instance, that the struggle with Goldman was not a short one and also that prints near the bodies could have come from a second set of shoes--but his support for PCR technology represents a significant concession to the prosecution. Defense attorneys long have tried to suggest that the PCR test results are unreliable because the PCR process is highly susceptible to contamination.
Prosecution experts have downplayed that potential in light of the numerous tests performed in the Simpson case, but Monday’s testimony marked the first time that a witness called by the defense backed up the prosecution’s contention that PCR testing produces reliable results.
Famous Case Described
Going on to cast doubt on the defense’s contention that cross-contamination rendered much of the evidence in the Simpson case unreliable, Lee told the jury about what may be his most famous forensic analysis, which took place during an investigation into a 1986 murder in which an airplane pilot named Richard Crafts was accused of killing his wife, freezing her body, then putting it through a wood chipper and scattering her remains across 2,500 snow-covered square feet near a riverbank.
Despite the myriad possibilities for contamination in collecting Helle Crafts’ remains--the samples were wet, and the investigation gathered animal remains as well as human ones--Lee said he was able to identify the chips as having come from the murdered woman.
That was true even though the tiny chips were mixed together in a single container, Lee added.
“When the items would fall to the bottom of the bucket, various different biological samples could get fixed together or were mixed together, is that correct?” Goldberg asked.
“Yes, yes,” Lee answered.
“And it also mixed together human biological samples with others that were out there, like deer bones and the like, is that correct?” Goldberg continued.
“Yes,” Lee said again. “Correct.”
“And despite that, sir, it was proper . . . to attempt DNA technology on this evidence, is that correct?” the prosecutor asked.
“That’s correct,” said Lee.
The first jury weighing the evidence against Crafts failed to reach a verdict--one juror held out for acquittal and eventually boycotted deliberations. But a second panel convicted him of murder.
In 1993, the Connecticut Supreme Court upheld Crafts’ conviction, ruling that there was sufficient circumstantial evidence to support the jury’s guilty verdict.
How Much Blood?
The defense’s suggestion that PCR tests are unreliable represents just one of its many attacks on the prosecution’s self-proclaimed “mountain of evidence” linking Simpson to the June 12 murders. In addition, the Simpson lawyers have suggested evidence-tampering and have pointed to what they say are a staggering number of instances in which police or other authorities were careless or sloppy in their evidence collection and analysis.
Lee has helped the defense build that case, but on Monday, he agreed with Goldberg that some areas the defense has suggested were problems are common to investigations across the country.
In fact, Lee acknowledged that in the early days of his own lab, he and his analysts occasionally used paper towels in place of scientific blotter paper and that a dog once ran off with a scrap of evidence that was drying in the back yard.
“And despite these kinds of problems . . . generally, Dr. Lee, would it be fair to say that you and your laboratory people in the area of DNA and conventional serology have still been doing very high-quality work?” Goldberg asked.
“We try our best,” Lee said.
Only near the end of the cross-examination did Goldberg squabble with the eminent scientist, who usually testifies for prosecutors. Lee had testified that prints near the bodies were consistent with a second set of shoe prints, potentially bolstering the defense position that at least two people committed the murders.
After leading Lee through a methodical, sometimes agonizingly slow series of questions about the specific tiles where imprints were found, Goldberg suggested that some of the prints could have been left by people who visited the Bundy Drive scene after the crimes were committed.
He played videotapes of police officers walking through the crime scene, and showed Lee two sets of photographs of one set of prints. One set was taken on the day after the murders, the other more than a week later. Only in the second is a mysterious print, with parallel lines that Lee described last week, visible.
Goldberg implied that police officers or other visitors to the scene could have left those prints. His voice tight and defensive, Lee said he did not believe that officers could have been the source of those prints.
Seeking to erase any doubt raised by that line of questioning, Simpson attorney Barry Scheck returned to the topic later, reminding the jurors that similar lines appeared on Goldman’s jeans and an envelope found near the bodies.
Before concluding, however, the prosecutor also raised for the first time the possibility that the murderer might not have been covered with blood after the struggle, as has been widely assumed. Prosecutors generally have avoided that topic directly, and Scheck raised it when it was again his turn to question the expert.
Scheck asked whether the killer would probably have been “covered with blood” from the struggle, but Lee answered more carefully.
“In theory,” he said, the assailant “should have some blood.”
The issue is potentially interesting to the case, because prosecutors have to explain how Simpson could have committed the murders sometime close to 10:30 p.m. on June 12 and still managed to clean up and meet an airport limousine at his home two miles away by 11 p.m. Simpson’s car also had spots of blood but was not drenched in it, raising the question of how he could have avoided staining more heavily the interior of the Ford Bronco if he had been covered in blood.
Having heard Lee’s cautious response to the defense question, Goldberg specifically asked late in the day whether the suspect might have avoided covering himself with blood if he stood behind Nicole Simpson when he slit her throat.
“If a person were to wrap their hand around someone’s throat and slit that person’s throat . . . and the blood spurted forward, would you expect the assailant to be covered in blood?” Goldberg asked.
“Probably not,” Lee said.
Lee’s testimony represents the penultimate piece of the defense case. The final major element could debut as early as today, if Ito, as expected, considers the admissibility of tapes and transcripts of interviews with Fuhrman.
Those interviews have embroiled the trial and the LAPD in a spiraling set of controversies that show few signs of abating. Even as Ito considers the question of how much--if any--the jury should hear, calls are mounting for a federal investigation, and members of the Los Angeles Police Commission and investigators from the department’s Internal Affairs Division have been reviewing the material at the office of the lawyer for screenwriter and professor Laura Hart McKinny.
They completed that process Monday, and sources familiar with the tapes and transcripts say several aspects of the city’s review have piqued the interest of department investigators.
According to those sources, Fuhrman’s comments about a police beating in Boyle Heights and his description of an incident in which officers struck a suspect with batons and ruptured his spleen have sparked the most serious review. But other aspects of his interviews also have drawn departmental interest, the sources said.
In at least one interview, Fuhrman allegedly discussed his involvement with Men Against Women, an informal group of officers in the West Los Angeles police station. Fuhrman’s statements to McKinny, however, contradict comments he made to Internal Affairs investigators from the LAPD who investigated the group in the mid-1980s.
Those contradictions--he says, for instance, that a tribunal of officers inflicted punishment on those they felt were compromising the ideals of Men Against Women--could implicate other officers investigated as part of that probe. That prospect has given the department cause for concern about the integrity of the entire Men Against Women investigation, which ended without official action against Fuhrman.
In addition, Fuhrman discusses the views and actions of fellow officers, some of whom still are with the LAPD and thus could be subject to discipline. In some interviews, one source said, Fuhrman refers to the officers by nicknames, and LAPD officials are trying to determine the actual names of the officers as a first step toward deciding whether to open investigations into them.
For the most part, Fuhrman’s expressions of distaste for women and minorities--and his description of parties held to mark police shootings--appear unlikely to trigger additional departmental action because he no longer works for the LAPD. But one previously unreported comment has angered a number of officials who learned of it.
In that remark, Fuhrman, according to sources, told McKinny that he wished the department would not go ahead with its plans to replace its aging and dilapidated 77th Street Division, where Fuhrman began his LAPD career. Fuhrman’s reason, the sources said: He would miss the “smell of niggers that have been beaten and killed in there for years.”
With the Fuhrman issue coming to a head, defense attorneys filed a motion Monday intended to limit the presentation of closing arguments. Simpson’s lawyers argued that each side should be limited to one day--and two lawyers--to present its argument, a suggestion that prosecutors will oppose, Deputy Dist. Atty. Marcia Clark said outside court.
The defense’s intent, she said, was to curb the prosecution from fully explaining its evidence to the jury.