Week 12

April 10 - 14, 1995

The judge ordered an investigation into the jury's conduct after Harris said that jurors were discussing the case among themselves and with others during unmonitored telephone calls. She also accused sheriff's deputies of promoting racial tensions by favoring the white panelists.

There was no testimony in the case because the judge had other obligations.

APRIL 11 - After a five-day hiatus, testimony resumed with criminalist Dennis Fung and defense attorney Barry Scheck engaging in exchanges over the handling of the crucial physical evidence.

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At one point, Scheck accused Fung of grabbing a blood-spattered envelope found at the feet of the victims without wearing protective gloves. Scheck then showed a photograph of a bare hand holding the envelope but Fung denied that it was his hand.

Fung did concede however that evidence at the Bundy crime scene had been moved. He said he had learned that the envelope, which contained prescription glasses, had been moved twice, as had a bloody glove, to make way for coroner's officers to take the bodies from the scene outside Nicole Brown Simpson's townhouse.

Meanwhile, Simpson's attorneys asked Judge Lance Ito for a hearing to determine if prosecutors have been trying to remove jurors who may be "favorably predisposed" to returning a not guilty verdict.

The defense contends that prosecutors want to force a mistrial by removing enough jurors to bring the panel's number under 12.

By law, the prosecution can not ask for a mistrial. But the judge can declare a mistrial if the number of jurors falls below 12.

The prosecution denied that they were behind any efforts to remove jurors.

"Let me assure you of this, no one investigates any juror in this case without the express consent and direction of Judge Ito," prosecutor Chris Darden said. "The (Los Angeles County) Sheriff's Department does not take it upon itself to investigate jurors."

The issue of the jury arose last week after Judge Ito dismissed juror Jeanette Harris last week for failing to disclose a previous incident of domestic violence.

In the defense motion, Simpson's attorneys argue that if the jury panel drops below 12 and a mistrial is declared, the prosecution should be banned from retrying the case. It also states that the defense has "grave concerns" about the sheriff's deputies guarding the sequestered jury and is asking they be replaced by social workers, court civilian employees or other county workers.

Scheck's questioning of Fung was highlighted by the playing of the crime scene video.

"That's you getting the prescription envelope from (criminalist) Andrea Mazzola, grasping it in your bare hands, isn't it?" Scheck asked Fung after the video was played at various speeds both backward and forward. "No," Fung said. "I know my fingerprints are not on that envelope."

Scheck showed the tape again, freezing a frame that showed Mazzola, holding a letter-size object in her hand before passing it to him.

"There! There! How about that, Mr. Fung?" Scheck exclaimed. "Does that refresh your recollection that you took the envelope from Andrea Mazzola with your bare hand?"

When Scheck asked what the object could possibly be, Fung replied, "A notepad maybe? ... I'm saying it could be anything, but it's not the envelope."

The defense is setting the stage to challenge the DNA evidence in the case -- arguing that the DNA test results are unreliable because the evidece was collected in a sloppy manner.

And Fung's testimony included several admissions that support the defense's arguments.

He testified that he didn't tell his superiors when he found new blood stains inside Simpson's Ford Bronco six weeks after the initial search and investigation of the vehicle. Fung, however, said he collected only a "representative sample" of the blood smears, and that was why there was still blood on the console six weeks later.

Fung also said there was no blood found on the carpeting in Simpson's bedroom where investigators found a pair of blood-stained socks. And, he conceded that he was wrong to testified that that the collection of evidence didn't begin until after personnel from the coroner's office left the crime scene.

Scheck also used television news videotape of police at the crime scene to try and show the possible contamination of the bloody glove found near Ronald Goldman's body.

But Fung dismissed Scheck's contention that the glove was tossed onto a blanket from Nicole Simpson's condominium that was used to cover her body.

"You know it's the glove, don't you?" Scheck asked.

"I don't know that," Fung replied.

"You know it's the glove, and you just got caught by the videotape," Scheck insisted.

Prosecutors tried to prevent the jury from seeing the video. They said that camera angles and lighting were distorting the picture, and the glove was not really sitting on the blanket. The judge ruled last week that that was for the jury to decide.

Scheck also questioned Fung's training in the collection of evidence for DNA testing. Prosecutor Hank Goldberg repeatedly objected, saying DNA was not part of Fung's expertise, but Judge Ito permitted the questions. Scheck confronted Fung with textbooks on evidence collection which stated that wet stains, such as blood, should never be packed in plastic. Such packaging can foster the growth of bacteria, which can eat away at the DNA and distort test results.

Fung said he knew that but placed samples in plastic nevertheless. He said the plastic bagging was a temporary container for blood samples and other evidence.

APRIL 12 - Defense attorney Barry Scheck continued to question aggressively criminalist Dennis Fung about the collection of blood samples from the crime scene and from O.J. Simpson's estate.

But instead of merely insinuating that Fung made mistakes in the handling of the evidence, Scheck's questioning suggested that Fung was lying about blood allegedly found on the sill of Simpson's Ford Bronco. The defense also used apparent inconsistencies in Fung's testimony to suggest that he was involved in an effort to frame Simpson for the murders of Nicole Brown Simpson and Ronald Goldman.

Meanwhile, the investigation continued into a dismissed panelist's claims of jury problems. Judge Lance Ito met for 35 to 40 minutes with the ousted juror, Jeanette Harris. Harris reiterated all of her previous allegations including claims that sheriffs' deputies were fostering racial tensions among the jurors, her attorney said after the hearing.

At the end of the day, Scheck produced two new videotapes showing Fung leaving Simpson's home on June 13. The defense claims the videos cast doubt on Fung's account of how he carried Simpson's blood from the scene. The prosecution asked for time to review the tapes, and testimony was halted for the day.

Fung testified that Detective Philip Vannatter gave him a blood sample taken from Simpson at police headquarters earlier on June 13. Fung said he received the blood from Vannatter in the foyer of Simpson's home. The vial was in a grey envelope, and he opened it in the foyer to examine it.

When Scheck asked whether this was normal procedure for booking evidence, Fung said, "I can't remember one instance where that [evidence was transported to him instead of being booked at the Evidence Control Unit] happened."

The defense believes the videotapes will disprove Fung's version of events. One video shows Fung and criminalist Andrea Mazzola leaving Rockingham. Fung is seen holding some brown bags and his black catalogue case. At the end ofthe tape, Fung can be heard telling Mazzola that they should go back into the house for one more look.

The second video shows Fung and Mazzola again leaving Rockingham after they had their one last look. This time, Fung does not have anything in his hands.

The defense appears to be trying to show that Fung didn't get the blood vial from Vannatter on June 13 because he is not seen holding the grey envelope in either of the videos. The defense has suggested that taking a vial of Simpson's blood to his home gave police the opportunity to frame him for murder.

Scheck also questioned Fung about blood samples taken from Simpson's Ford Bronco. He wanted to know why samples taken from the Bronco on July 6 were not visible to Fung when investigators searched the vehicle on June 14.

The defense is trying to show that Fung never saw the stains on June 14 or July 6, and that the criminalist is trying to protect Detective Mark Fuhrman. Fuhrman previously testified that he saw the four stains - and that is why detectives decided to scale the fence onto Simpson's property in the early morning hours of June 13.

Scheck also confronted Fung with a textbook on evidence collection that recommended never placing blood-soaked items in plastic because it could foster bacterial growth and distort test results.

Fung testified that blood samples collected from the murder scene were stored for several hours in a hot police van and could have deteriorated, adding that a refrigerator in the van where the samples should have been stored was not working. He said the plastic was a temporary holder until the evidence could be taken to the crime lab.

APRIL 13 - Defense attorney Barry Scheck concluded his cross-examination of criminalist Dennis Fung by accusing Fung of destroying evidence in an effort to cover up the fact that he lied about when he received a vial of O.J. Simpson's blood.

Fung had testified that Detective Philip Vannatter gave him a vial of Simpson's blood on June 13, 1994. But Scheck played a news videotape showing Fung and his assistant putting evidence in their crime scene truck at Simpson's estate and locking the truck before Vannatter arrived.

"And when you saw these series of tapes, Mr. Fung, you realized you had been caught in a lie, didn't you?" Scheck asked.

"No," Fung said. He explained that he now remembered that his assistant, Andrea Mazzola, had carried the vial to the truck in a black plastic bag.

The defense claims Fung did not receive Simpson's blood until June 14, giving police time to smear part of the sample on other evidence, including socks and Simpson's white Ford Bronco.

Scheck then accused Fung of destroying a page of his original crime scene report, and substituting it with another page, to cover up the fact that he had written that he received the blood sample from Vannatter at 5:20 p.m. on June 13, when by that time Fung had already left Simpson's estate. Fung denied the allegation.

After Scheck finished his cross-examination, prosecutor Hank Goldberg, started his re-direct examination of Fung by asking whether the criminalist participated in a conspiracy to frame Simpson. Fung said he did not.

Meanwhile, dismissed juror Jeanette Harris told Judge Lance Ito of physical fights and racial conflict among jurors including incidents of hitting and kicking, according to a partial transcript of Wednesday's hearing. She also detailed claims that sheriffs' deputies were fostering racial tensions. She told the judge that jurors watched movies in segregated rooms and that black jurors could not see the movies until after the white jurors had seen it.

APRIL 14 - Judge Lance Ito ruled that prosecutors violated a court order by failing to disclose to the defense a page of criminalist Dennis Fung's notes.

In cross-examining police criminalist Dennis Fung Thursday, defense attorney Barry Scheck suggested that Fung replaced an original page from his crime scene checklist with an altered photocopy to further what the defense alleges was a police conspiracy to frame O.J. Simpson. Scheck noted the page did not have staple marks found on other pages .

But during a break in Fung's testimony after Scheck had concluded his cross-examination, prosecutors said they conducted a search and found the original document in a crime laboratory notebook. Prosecutor Hank Goldberg then tried to deflate the defense's conspiracy theory with the surprise introduction of the document, which Fung identified as the missing page.

Scheck accused the prosecution Friday of "intentional misconduct" for failing to share their discovery with the defense. Goldberg argued that the prosecution did not have an obligation to do so.

Judge Ito ruled that the misplacing of the original page was inadvertent. However, the material should have been turned over because there is a standing court order to provide original documents to the defense. He said he would instruct the jury that the prosecution violated the court order but rejected a defense request to throw out the testimony.

WEEK 13