The Run of His Life

by Jeffrey Toobin

  So Scheck went to work. He noticed first that Fung had not collected the blood on the gate until July 3, 1994—three weeks after the killings. Fung had explained in his direct examination that he had simply missed this blood when he took samples at the scene on the morning after the murders. Revisiting the scene with Detective Lange later, Fung realized he had to check to see if the blood was still on the back gate. It was, and Fung took it in for testing.

  Scheck then noticed something curious in the test results. For many of the stains that Fung collected from the walkway outside Nicole’s home, the DNA had substantially degraded. As a result, these stains could only be subjected to the PCR type of DNA testing, which yields less precise results than the RFLP method. But the blood on the back gate was scarcely degraded at all. It was so rich in DNA that the police could, and did, do RFLP testing on it. Scheck found this paradoxical. Why would blood that had sat outside for three weeks be less degraded than blood that was collected within a few hours of the crime? Scheck saw conspiracy. If the blood had been planted on the rear gate after that first day—and, of course, after Simpson had given his reference sample to the police—that would explain why it was so rich in DNA.

  Scheck didn’t stop there. He examined photographs of the crime scene. On the morning after the murders, Fung had worked closely with the photographer at the crime scene, but because Fung didn’t focus on the rear gate, neither did the photographer. There was no clear photograph of the back gate from those taken on the morning of June 13. The only head-on pictures of that stain were taken when Fung finally did remove a sample, on July 3. But Scheck did find one photo from June 13 that revealed a distant view of the back gate. He had it blown up many times. Though the photo was blurry and somewhat ambiguous, Scheck could argue that the blood was simply not there on June 13. In a dramatic moment in his cross-examination of Fung, Scheck showed Fung the July 3 photo, where the blood is clearly visible, and then the earlier photo, where it is not.

  “Where is it, Mr. Fung?” Scheck asked with a sneer in his voice. Fung couldn’t say. This exchange ended the court day on April 11. When Scheck returned to the defense table, Shapiro told him, “Perfect!”—which it was. (Shapiro’s only other contribution to the Fung cross-examination was to joke, during a break, that he was eating fortune cookies from the “Hang Fung Restaurant.” He later offered an oleaginous public apology to Fung and “all my friends in the Asian-American community” for the remark.)

  But Scheck wasn’t finished. He focused on the preliminary-hearing testimony of Thano Peratis, the police nurse who took Simpson’s blood sample on the afternoon of June 13 at Parker Center. Peratis had testified on cross-examination at the preliminary hearing that he had taken about 8 milliliters of blood as a sample—a standard amount. Using this fact, Scheck then did something that had probably never been done before in a criminal case: He reviewed the records to see how much of Simpson’s blood sample had been used up in all the subsequent testing. Again, Scheck found something peculiar. The subsequent tests accounted for only about 6.5 milliliters of blood. Scheck thus concluded that some of Simpson’s blood was “missing.” Scheck also found an expert to say that the blood on the gate contained EDTA, a preservative used in the test tube where Simpson’s blood sample had been stored.

  Thus, Scheck had the raw material for his counternarrative of the blood on the back gate. The story went like this: On June 13, Fung did not collect the blood on the back gate because it wasn’t there; the photos were proof of that. Between June 13 and July 3, someone—probably Vannatter—planted O.J.’s blood on the back gate. (After all, Vannatter, curiously, had brought O.J.’s blood sample all the way back to Brentwood from downtown Los Angeles to hand to Fung.) If the photos themselves were not enough proof that the blood was planted after the fact, the DNA tests themselves were. The DNA of the blood left at the actual crime scene had degraded, but because the blood on the gate came from Simpson’s fresh sample, it yielded definitive results. Someone had planted some of Simpson’s “missing” blood on that back gate: Q.E.D.

  Now, the prosecution had a response to this story, but it was a complicated one—and it depended, in significant part, on the jurors’ believing in the incompetence of the LAPD, which was not a message the government otherwise wanted the jury to accept. First of all, the prosecutors asserted, Fung did simply miss the blood on that first morning. On that day, he collected dozens of stains at Rockingham and Bundy, and this one just fell through the cracks. The fact that many police officers saw the blood on the back gate established that it was not planted at some later date. As for the good quality of the back-gate blood several weeks later, that too related to a flaw in Fung’s work. After Fung collected the samples on June 13, he placed them in plastic bags and then stored them for several hours in an unair-conditioned truck. In retrospect, it was clear he shouldn’t have done that, because heat and humidity degrade DNA. But the blood on the gate spent three weeks resting on a clean, painted surface in the cool Brentwood air. Naturally, the DNA in it did not degrade. The photographs proved nothing, establishing only that neither Fung nor the photographer had paid attention to the back-gate stains on June 13. A government expert also challenged Scheck’s claim about the presence of the preservative in the blood. In some of the most highly technical evidence in the case, an FBI expert said the blood from the gate contained no EDTA.

  As for “missing” blood, that was a figment of Scheck’s imagination. Peratis had testified without thinking at the preliminary hearing; he said he took 8 milliliters, but that was just a standard amount. When it comes to such small differences as 1 or 2 milliliters, nurses generally pay little attention to the amount of blood they take from living people. It doesn’t make any difference; if more blood is needed, the person can simply give more at another time. And Peratis, who was in poor health, gave a videotaped statement at the trial in which he confessed that he had been too categorical when he testified at the preliminary hearing that he took 8 milliliters from Simpson. It might have been as little as 6.5 milliliters. (This important conflict over Peratis’s testimony at the prelim showed just how important it was that Dershowitz had succeeded in stopping the grand jury. If prosecutors had indicted Simpson before a grand jury, Peratis never would have been cross-examined before the trial.) As for Vannatter’s delivery of the blood to Fung in Brentwood, that took place at O.J.’s home on Rockingham. A news video showed Fung placing the vial in his truck outside O.J.’s house. Thus, that blood couldn’t have been planted at Nicole’s condo on Bundy.

  More fundamentally, though, the prosecutors wanted the jury to believe that the police did not plant blood on Nicole’s back gate because they would not do such a thing. Vannatter, Lange, Fung—they all gave their word that they did not do it. That, the prosecutors believed, should have counted for something. But with a jury predisposed toward sympathy for the defendant and hostility to the police, Scheck’s counternarrative found a receptive audience.

  Scheck’s theories covered far more than just the bloody smudge on the back gate. He argued that the blood drops to the left of the shoe prints at Bundy had been cross-contaminated with Simpson’s reference sample; he contended that some nefarious police officer—never named—splashed some of Nicole Brown Simpson’s blood on O.J. Simpson’s socks, which were recovered from the foot of his bed. Scheck asserted that Mark Fuhrman had planted Ron Goldman’s blood in O.J.’s Bronco—though not the way Bailey had contended. Unlike Bailey, who had asserted Fuhrman used the second glove like a paintbrush in the car, Scheck suggested that Goldman’s blood simply rubbed off as Fuhrman was illegally rooting around inside Simpson’s car while it was parked outside Rockingham in the early morning hours of June 13. As with the blood on the rear gate at Bundy, Scheck was able to tease some evidentiary support for each of these hypotheses. With the exception of Fuhrman, Scheck never named the perpetrators of these misdeeds, nor did he explain how or why so many disparate people—which would include, at a minimum, Fuhrman, Vannatter, Lange, Fung, Mazz
ola, and two other LAPD criminalists, Collin Yamauchi and Michele Kestler—undertook this massive conspiracy. Still, Scheck’s arguments amounted to more than mere conjecture, and he made them earnestly and with zeal.

  Fung ultimately spent nine days on the witness stand, and his departure from it prompted one of the more bizarre scenes of the trial. By the end of his ordeal, Fung’s pitiful appearance served as the best argument that he was no conspirator. Even if Fung had wanted to frame Simpson, he was clearly so hapless that he didn’t seem up to the task. As Fung was ready to step down, Scheck thanked him twice. Fung walked by the prosecution table, where Darden gave him a halfhearted handshake. When he reached the defense table, Fung was greeted like a hero. Johnnie Cochran grasped his hand. Shapiro enveloped Fung in a bear hug. Then O.J. Simpson reached out and gave Fung a big smile and a handshake—all this for a man who, Scheck contended, had lied to cover up his involvement in a scheme to frame a man for murder. (Courtroom-security rules prohibit defendants from making such gestures, but the bailiffs, like everyone else, were too stunned to intervene.)

  In its way, the defense team’s hearty farewell to Fung displayed a kind of sportsmanship to a vanquished adversary. It is possible to read something more sinister, however. At a minimum, Shapiro, Cochran, and Simpson himself knew how absurd the idea was that Simpson had been framed for this crime. But because of Fung’s abysmal performance (and Goldberg’s inferior preparation of him), that idea had achieved some currency in front of the jury. No wonder the defense wanted to thank him.

  Andrea Mazzola followed her boss to the stand, and endured a similar—though not so disastrous—ordeal. A shy and ingenuous young woman with an apparently sincere passion for forensics, Mazzola did admit making a few minor errors in handling the evidence—not changing gloves frequently enough and things like that. But Peter Neufeld’s sneering cross-examination made no progress in portraying her as a member of some grand conspiracy. Mazzola lingered on the stand for more than a week, which meant that the prosecution presented only two witnesses—Fung and Mazzola—in the entire month of April.

  What followed should have been the highlight of the prosecution’s case—the presentation of the results of the DNA testing. Garcetti had recruited two of the top DNA prosecutors in the state to present this portion of the evidence, Rockne Harmon from Oakland, and Woody Clarke from San Diego. Earlier in the case, these two had offered to step aside and let one of the local prosecutors handle the evidence in front of the jury. But, facing too many witnesses in too little time and also wanting to share the limelight, Marcia Clark had let Rockne and Woody handle it. The result, probably inevitably, was that this part of the case expanded. When Woody Clarke put on Robin Cotton, the laboratory director at Cellmark, the private DNA operation in Maryland that did much of the testing in the case, Clarke spent a full day and a half just on introducing the technology to the jury. (In a subsequent trial, shortly after Simpson’s, Cotton began giving DNA results after just one hour of preliminaries.) Attempting to be thorough, Woody Clarke made the subject boring and incomprehensible, especially to an uneducated jury.

  Still, the results of the more precise RFLP type of DNA testing were striking. For one of the blood drops on the path at Bundy, the odds were 1 in 170 million that it came from anyone other than Simpson. For the blood on the socks found in Simpson’s bedroom, the odds were 1 in 6.8 billion that they came from anyone other than Nicole Brown Simpson. (There are about 5 billion people on earth.) The results from the less exact PCR tests were less impressive only because of the overwhelming numbers from the RFLP testing. (The PCR odds in the blood evidence mostly came back as one in several thousand.)

  In every one of several dozen tests, the DNA results matched the prosecution’s theory of the case: O.J.’s blood to the left of the bloody shoe prints at Bundy; Ron Goldman’s blood in the Bronco and on the bloody glove found at Rockingham; O.J.’s blood again in the foyer of his home on Rockingham. In the case on which Marcia Clark and Phil Vannatter had first worked together, they had won a conviction based on a single fingernail-size drop of blood found in a car truck. The Simpson case, in contrast, probably featured more DNA evidence than any criminal trial in American history.

  But the possibility of evidence planting cast a pall over all of these prosecution numbers, impressive as they were. If police had swabbed Simpson’s and the victims’ blood at the crime scenes, then of course the numbers would be overwhelming. It was Barry Scheck who succeeded in undermining the significance of this evidence for the jury.

  Whatever the jury may have thought, the DNA testimony had a shattering impact among O.J. Simpson’s wealthy friends in West Los Angeles. At this stage of the trial, his most prized supporters melted away—among them Allen Schwartz, a clothing wholesaler and probably O.J.’s closest friend in Brentwood, and Alan Austin, a boutique owner and O.J.’s most frequent golfing partner. Now they finally knew what they didn’t want to know—that O.J. had killed Nicole, whom many of these men had grown to care for over the years. The DNA testimony shrank Simpson’s coterie of white friends to a lonely pair: Don Ohlmeyer, president of NBC’s West Coast operations, and Craig Baumgarten, a movie producer.

  It was perhaps because of this abandonment that O.J. Simpson, seemingly the only person in the courtroom to do so, took the DNA evidence so hard. As Robin Cotton or Gary Sims, the California Department of Justice DNA expert, gave their reports, Simpson greeted them with nervous monologues to Cochran or Shapiro or whoever happened to be seated next to him at the defense table. Usually impassive, Simpson greeted the enormous DNA numbers with scowls of derision. Though the jury had yet to speak, at this point Simpson knew with certainty that his former life was over. The friends, the hangers-on, the world of “being O.J.,” was now, clearly, gone forever.

  The length and complexity of the DNA testimony pushed the trial toward a kind of giddy exhaustion. Though Ito had originally told jurors the case might end in February, the marathon now appeared headed well into the summer. The principals coped. During Fung’s testimony, Marcia Clark changed her perm to a more natural hairstyle—a much-admired transformation that landed her hairdresser on Oprah. Darden meanwhile seethed in quiet frustration, his distress compounded because his beloved older brother, Michael, a former drug addict, lay dying of AIDS near their hometown of Richmond. Every hour in court was time that could have been spent with him. Cochran, cheerful as always, read his office mail as the other lawyers droned.

  Ito floundered. Courtroom discipline fluctuated according to the judge’s press clippings. When, as happened periodically, a big story in the Los Angeles Times or on one of the networks chided him for letting the case drag on, the judge would snap to attention for a day or two, refusing to hold sidebars and generally pushing things along. His resolve would then fade until the next critical story. After Newsweek put Ito’s picture on the cover under the headline WHAT A MESS, the judge lashed back at the press by permanently evicting two reporters from the courtroom, ostensibly for talking. Gale Holland of USA Today and Kristin Jeannette-Meyers of Court TV paid the price for Ito’s pique. When The New York Times published a hostile editorial entitled “Bankers’ Hours for the O.J. Case?” Ito lengthened the court day. Fundamentally, though, nothing much changed.

  The families of the victims dealt with the stress in strikingly different manners. For many months, the Goldman family simply bore witness at the trial and said little in public. Denise Brown used the occasion of the trial to embrace the cause of domestic violence. She and her family created the Nicole Brown Simpson Charitable Foundation, devoted to the issue of spousal abuse. It was launched at a press conference at the Rainbow Room in New York, sponsored by No Excuses sportswear, best known previously for some scandal-scarred spokeswomen, among them Donna Rice, Marla Maples, and Paula Jones. As the first president of the foundation, the Brown family named Jeff C. Noebel, a forty-year-old Dallas businessman who was awaiting sentencing for lying to federal authorities in a savings-and-loan scam and who had been named i
n a domestic-violence restraining order for posing a “clear and present danger” to his estranged wife and two children. (Noebel stepped down when these facts about his past became public.)

  19. STOCKHOLM SYNDROME

  Their greatest humiliation, the jurors remembered later, came right before bed. At 11:00 every night, one of the deputy sheriffs would walk around the fifth floor of the Inter-Continental Hotel, knock on the jurors’ doors, and demand their room keys. This ceremony went on every night for months before anyone even asked about it. This was how the jurors behaved—trusting, accepting, even passive about the many embarrassments of their quasi-custodial living arrangements. Finally, someone worked up the nerve to ask why they had to surrender their keys for the six and a half hours until the deputies returned to wake them up.

  “It’s so you don’t go into each others’ rooms,” the sheriff’s spokesman replied.

  That was that. The jurors were to be trusted to decide whether O.J. Simpson murdered two human beings but not to sleep with the keys to their own rooms. As usual, there was no protest, and the jurors continued to yield the keys until their last night in confinement. As with so many petty insults, the jurors lived with this one, too.

  By summer, they were struggling. Twelve jurors and twelve alternates had reported for sequestration under the twenty-four-hour-a-day supervision of the Los Angeles Sheriff’s Department on January 11. With the exception of occasional weekend outings—a much-enjoyed group ride on a blimp, a disastrous boat ride to Catalina Island, on which almost everyone got seasick—the jurors’ world was circumscribed by the courthouse and the Inter-Continental, about a mile away. Their rooms had no telephones or televisions. Deputy sheriffs dialed and monitored all telephone calls from a central “telephone room,” and screened newspapers for references to the case, clipping them out. Blockbuster supplied an unending stream of movies for the pair of “video rooms,” dubbed Cinema 1 and Cinema 2 by Judge Ito. The jurors ate their meals as a group. One night a week, from 7:00 to midnight, the jurors were allowed unsupervised conjugal visits with their spouses or significant others.