Prosecutor Sees More Challenges to DNA Evidence

TIMES STAFF WRITERS

Deputy Dist. Atty. Lisa Kahn, one of the prosecution's lead legal experts on DNA in the O.J. Simpson murder trial, warned Friday that defense attorneys can be expected to emulate the Simpson team's attack on the Los Angeles Police Department's evidence collection techniques and that prosecutors may be handicapped in future cases without improvements to the LAPD lab.

"There's an idea out there now," she said, reflecting publicly for the first time about the Simpson case and the presentation of DNA evidence. "Everyone's always quick to follow. Unless some changes are made, we're going to have an uphill battle."

Kahn, an experienced and highly regarded prosecutor with the Los Angeles County district attorney's office, defended the government's presentation of the DNA evidence in the Simpson case, saying that the testimony of Cellmark Director Robin Cotton and state Department of Justice analyst Gary Sims was clear and convincing. But Kahn acknowledged that prosecutors were taken aback by the ferocity of the defense's challenge to the work of the LAPD laboratory and its personnel.

Given the verdicts, she said, she expects more lawyers to follow.

"I can envision more attorneys here in town attacking the way the LAPD collects and processes evidence" in light of the Simpson team's victory, she said. "I suppose that in my next DNA case . . . I will sit down and talk with the criminalist who collects the evidence."

Deputy Dist. Atty. William Hodgman, a senior prosecutor involved in the Simpson case, agreed that more defense challenges to the department's work can be expected in the near future.

"I'm sure transcripts of the examination of various crime lab witnesses will make the rounds and manifest themselves in future cases to some degree," he said.

Their comments came as the Simpson case wound down, its participants scattering across the country. In Downtown Los Angeles, the last vestiges of "Camp O.J.," the media center for the trial, were being dismantled.

Elsewhere, however, the stream of developments continued: Lawyers for a videotape production company filed a $5-million lawsuit against Simpson for failing to promote an exercise tape that he made and that prosecutors introduced during the trial to show that he was physically capable of carrying out the murders. The U.S. Justice Department, meanwhile, released documents showing that a federal probe of brutality allegations made against former Detective Mark Fuhrman and other LAPD officers in 1978 was dropped because attorneys representing the complainants failed to cooperate.

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Deputy Dist. Atty. Marcia Clark, while declining most comment on the case, on Friday denied a CNN report in which she was quoted as saying that a majority black jury would not convict in a case such as the Simpson trial. Clark has tried and won murder cases involving black defendants in front of black juries, and on Friday she flatly denied the CNN report.

"I did not say that," she said. "I do not think that."

And yet another controversy from the case bubbled up again. Judge Lance A. Ito released a copy of an anonymous letter sent to him in May alleging that a white female juror was negotiating a deal to write a book. That five-page letter, from a self-described 20-year-old receptionist at a literary agency, led to the dismissal of juror Francine Florio-Bunten who steadfastly has maintained that she never had any such plans.

"That letter is as phony as a three-dollar bill," said Rex T. Reeves, Florio-Bunten's lawyer. He called the letter "an advocate's piece seeking Ms. Florio-Bunten's dismissal from the jury."

Ito held a hearing in chambers where Florio-Bunten denied any plans to write a book and denied the writer's claim that her husband had met with the unnamed head of a literary agency.

Reeves said his client "felt that the verdict was contrary to all the evidence in the case. She would have voted to convict."

Even as the Simpson case settles into history, its legacy spreads : Institutions from the LAPD to the jury system have come under new scrutiny, and lawyers across the country have speculated that the Simpson team's approach could chart new ways to attack cases built on DNA evidence.

Prosecutors presented dozens of DNA test results, during the trial, amassing evidence that they and other observers said exceeded that in any previous DNA case. But Peter Neufeld and Barry Scheck, two New York lawyers brought in by the Simpson team to spearhead its attack on the physical evidence, led the charge to discredit the significance of DNA tests pointing toward Simpson's guilt.

Jurors, in their initial comments after returning their verdicts, said the DNA evidence had not made much of an impression on them. Instead, they said they focused on questions about the LAPD's handling of the evidence--especially the allegations that Fuhrman planted a bloody glove outside Simpson's house and the questions raised about Detective Philip L. Vannatter transporting a vial of blood across town before booking it into evidence.

In addition, jurors have cited concerns about the LAPD's evidence collection techniques, echoing the defense claims that sloppy handling and processing by criminalists undermined the credibility of DNA tests subsequently performed on blood samples.

Kahn said defense attorneys were forced to take aim at the LAPD because of moves she and other prosecutors made early in the case. In particular, Kahn directed that blood samples be submitted to two separate laboratories--Cellmark and the state Department of Justice lab in Berkeley--which made it far more difficult for the defense to suggest that DNA tests were unreliable because the tests of different labs produced the same results.

Perhaps as a result, the defense never suggested that DNA testing was not reliable science. It did put on one witness, microbiologist John Gerdes, who challenged a particular form of forensic DNA testing known as PCR analysis, but Kahn said that came as no surprise.

Gerdes, she said, testified similarly in a 1991 case prosecuted by the district attorney's office and defended by well-known defense lawyers Leslie Abramson and Marcia A. Morrissey.

Instead of attacking DNA head-on, the defense chose to challenge the handling of the samples, suggesting that a combination of contamination and evidence-planting while the samples were in LAPD custody rendered the evidence unreliable. The Simpson lawyers were aided in that attack by Gerdes' stinging denunciation of the laboratory.

In an interview with The Times, Kahn called for improved laboratory training and creation of a comprehensive manual, among other things. But she expressed sympathy for the laboratory personnel, noting that the LAPD's Scientific Investigation Division has been the "bastard stepchild" in some city budget debates.

"I'm hoping that Chief [Willie L.] Williams will see the need," Kahn said. "I feel very strongly about this type of evidence, but it has to be done properly."

Her observations dovetail with those of others in the LAPD and on the City Council, where calls have arisen for increased laboratory funding and for a review of its training and procedures.

The new public focus on the LAPD lab is but part of the fallout from this week's acquittal verdicts, which set Simpson free even though they did not end his legal troubles. He still is faced with three wrongful-death lawsuits--one by the family of Nicole Brown Simpson, and two by relatives of Ronald Lyle Goldman.

His latest problem involves a suit for failing to promote his fitness videotape, as he pledged to do when he signed a 1993 contract. Although that suit charging breach of contract probably is a less pressing legal problem for Simpson than the wrongful-death claims, it nevertheless presents him with yet another challenge. Johnnie L. Cochran Jr., Simpson's lead attorney, was unavailable Friday for comment on the latest legal fight.

B ut Simpson is not the only one with baggage left from the long investigation and trial of the murder case.

The Justice Department's release of documents--provided to news organizations under the federal Freedom of Information Act--sheds new light on one incident that attracted the attention of the LAPD and others. Specifically, the new material appears to explain why the federal government did not follow up on allegations that police violated the civil rights of Boyle Heights residents in the wake of a Nov. 18, 1978, shooting of two LAPD officers.

That incident has come under renewed scrutiny because Fuhrman, in tape-recorded interviews with an aspiring screenwriter, graphically described beating suspects and duping Internal Affairs investigators who probed complaints about brutality. Some specifics cited by Fuhrman in those interviews have led police to conclude that he was discussing the 1978 shooting and its aftermath, though LAPD officials also believe that Fuhrman was embellishing his account.

In requesting a federal probe soon after the incident, attorneys Antonio H. Rodriguez and Miguel Garcia accused police of beating and torturing residents in the days after the shooting. But Rodriguez and Garcia did not respond to Justice Department letters requesting that they provide names of witnesses and other evidence that would help lawyers from the agency's Civil Rights division investigate, according to the records released Friday.

"[The] lack of cooperation of [the] alleged victims' attorneys has resulted in no evidence of a prosecutable violation of federal criminal civil rights statutes," said a March 12, 1980, Justice Department memorandum announcing the closing of the case.

Rodriguez disputed the claim to the Associated Press: "That is jive. I never was contacted." This is not only ridiculous, it's outrageous."

U.S. Atty. Gen. Reno has said her department is investigating allegations of civil rights violations by the LAPD officers, but has not decided whether to restrict its inquiry to a civil "pattern or practice" of misconduct or to conduct a criminal investigation.

Times staff writers Andrea Ford and Henry Weinstein contributed to this story.

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