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Week 29

August 7 - 11, 1995

A North Carolina appeals court upheld Judge Lance Ito's subpoena Monday, overturning a lower court ruling that Laura Hart McKinny, a writer and college professor, did not have to testify on her screenplay collaboration with Fuhrman. McKinny was ordered to appear along with any tapes, transcripts and documents she may have of her interviews with Fuhrman.

Judge Ito has determined McKinny is a material witness but has yet to rule on the admissibility of the tapes, leaving a possibility that the jury may never hear them.

Fuhrman and McKinny collaborated on "Men Against Women," a screenplay based on a sexist Los Angeles Police fraternity to which Fuhrman belonged. On tapes, recorded between 1985 and 1994, Fuhrman allegedly uses the racial slur "nigger" repeatedly and discusses methods of planting evidence.

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Fuhrman is the detective who scaled the fence at Simpson's home and found a bloody glove on June 13, 1994, about 12 hours after Nicole Brown Simpson and Ronald Goldman were found stabbed to death. The defense claims that Fuhrman is a racist with particular animosity toward inter-racial marriages and that he took part in a conspiracy to frame the former football star.

Under cross-examination, Fuhrman denied using the word "nigger." Defense lawyers plan to use McKinny's tapes and testimony to discredit Fuhrman's testimony and advance their conspiracy theory. The last of these tapes were recorded after the murders.

"The ruling in North Carolina today is probably the keymost important ruling in the case so far, from the standpoint of Mr. Simpson," defense lawyer Johnnie Cochran, Jr. said.

Earlier in the day, defense DNA expert Dr. John Gerdes stated under cross-examination that he is only offering his analysis that contamination had rendered the prosecution's DNA evidence unreliable. He said he testified about possibilities of what could have occurred, not what happened.

Gerdes had criticized PCR-based DNA tests. But Prosecutor George "Woody" Clarke forced Gerdes to admit that the PCR tests were cross-checked by subsequent RFLP tests.

Clarke also confronted Gerdes on contradictory statements he had made on scientific methodology and on alleged mistakes Gerdes made in studying DNA labs for contamination.

On re-direct, defense lawyer Barry Scheck tried to establish that if evidence was cross-contaminated by Los Angeles Police Department criminalists when it was collected, it would not matter how many subsequent tests run by different labs tested consistently with one another. The evidence would have already been tainted.

Criminalists can contaminate evidence by not changing gloves and handling equipment frequently enough and by handling samples of blood with high amounts of DNA at the same time it handles degraded blood samples, Gerdes said.

Professor Speed took the stand in the afternoon and criticized the prosecution's statistics experts for not including laboratory failure rates. He said he reviewed the testimony of prosecution expert witnesses and found that their calculations reveal nothing about the mistakes in collecting or processing evidence.

AUGUST 8 - A model and friend of O.J. Simpson's took the stand outside the presence of the jury to provide insights into the whereabouts of a voice-mail message that Simpson left for her a few hours before Nicole Brown Simpson and Ronald Goldman were murdered.

Gretchen Stockdale, who described Simpson as a friend, said the two of them met in 1988 and would see one another once in a while and speak on the phone. They began talking occasionally about Simpson's relationship with his wife in 1993, Stockdale said.

On June 12, 1994, the night of the murders, Prosecutor Marcia Clark asked Stockdale if Simpson left a message that said, in part, "Hey, Gretchen, sweetheart, its Orenthal James, who is finally at a place in his life where he is like, totally, totally unattached with everybody. Ha, Ha!"

Stockdale said it sounded like the message she retrieved June 13 from her answering service. She said she saved the message for a week, and then asked the service for a taped copy, which she later gave to defense investigator William Pavlik.

By holding a tape recorder up to the phone, Stockdale made a second recording, "just in case the original got lost," she said. But when she later needed the tape for another purpose, she recorded over it, she said.

The defense has refused to turn over the original recording, claiming that they have no duty to do so. Judge Ito ordered the prosecution to call the voice-mail company to find if a copy of the message can be obtained.

Earlier in the day, Judge Ito excused himself from hearing a defense request for police internal affairs documents relating to an investigation on police leaks to the press. Capt. Peggy York, Judge Ito's wife, is a high ranking member of the Los Angeles Police Department's Internal Affairs Division. Though she was not involved in the probe, Judge Ito said he felt more comfortable stepping aside in this matter.

Defense lawyer Gerald Uelman argued that the defense is entitled to statements LAPD criminalists Michele Kestler, Colin Yamauchi and Greg Matheson made to investigators. The three criminalists testified for the prosecution and their statements are therefore material to the issues of the trial, Uelman said. The defense has argued that finding the source of the press leaks will help reveal the alleged police conspiracy against Simpson.

Superior Court Judge John Reed, who heard arguments from Uelman and lawyers for the city of Los Angeles, ordered the defense to provide a "declaration of materiality" Wednesday morning to Judge Ito. He held that if Judge Ito decides in favor of the defense, he will decide if the statements should be turned over.

Judge Ito's decision should influence his ruling on whether he will pierce the California shield law that protects journalists from revealing their sources and compel freelance writer Joe Bosco and TV reporter Tracie Savage to testify on press leaks, Uelman said.

The jury heard testimony for less than an hour and a half. Prosecutor Rockne Harmon confronted defense statistics expert Terence Speed with a letter he wrote to prosecution witness Bruce Weir that seems to contradict some of Speed's testimony.

In the 1992 letter, Speed mocks assumptions about the methodology in a Nuclear Regulatory Committee report that he strongly supported on direct examination.

Harmon also asked Speed why he refused to speak to Weir, a friend and fellow statistician, before testifying. Speed said he felt uncomfortable disagreeing with Weir but that he believes Weir's population frequency calculations that the prosecution is using are faulty in that they assume no error occurred in DNA testing.

Harmon got Speed to concede that if jurors decide there was no laboratory error then they can assume Weir's numbers are correct. "You have simply alerted the jury to the possibility of certain errors," Harmon said.

In other arguments, Judge Ito granted Prosecutor Brian Kelberg's request for the defense to turn over notes that Dr. Michael Boden and Dr. Barbara Wolf, two potential witnesses, who took notes during the testimony of coroner Dr. Lakshmanan Sathyavagiswaran.

The defense filed three motions. The first asks Judge Ito to bar the prosecution from introducing pictures that allegedly show Simpson at a football game wearing the same sort of gloves found covered in blood at the murder scene and Simpson's home.

The defense contends that there are no scientifically accepted methods to positively identify the gloves based on photography and that such evidence would be outside the scope of the prosecution's rebuttal case.

In a separate motion, the defense seeks to limit the cross-examination of Kary Mullis, the inventor of PCR-based DNA test that was used on key prosecution evidence. Mullis has an eccentric lifestyle, and he admits to having used LSD and other illegal drugs. Among other topics, the defense wants to stop the prosecution from asking Mullis questions about social relationships, domestic discord and his use of controlled substances.

The defense is also seeking the appointment of a special prosecutor to investigate alleged police perjury, specifically in relation to Detective Mark Fuhrman, whom they say lied on the witness stand about harboring racist slurs against blacks.

AUGUST 9 - Judge Ito ruled that the defense failed to prove that information allegedly leaked to the press by law enforcement officials was material to the case.

As a result, defense lawyers will not by able to compel journalists Tracie Savage and Joe Bosco to testify, and they will not have access to a Los Angeles Police Internal Affairs Department probe into the source of the press leaks.

After the ruling, the defense said it had no witnesses to testify and Judge Ito recessed the trial until Thursday.

The defense had hoped to ask Savage why she was able to report, several months before DNA tests were concluded and released, that blood consistent with Nicole Simpson's was found on a sock in her husband's bedroom.

The defense said that press leaks were part of the police conspiracy to plant evidence to incriminate Simpson.

Savage and Bosco, who wrote an article about press leaks in the Simpson Case for Penthouse magazine, invoked the California Shield Law, under which journalists cannot be forced to reveal the names of confidential sources unless the information will "materially assist" a criminal defendant.

AUGUST 10 - A world-renowned pathologist contradicted the prosecution's theory of the stabbing murders of Nicole Brown Simpson and Robert Goldman.

Dr. Michael Baden, a forensic pathologist who led a commission to reopen the investigation of President John F. Kennedy's assassination and has investigated deaths in Croatia and the Gaza Strip on behalf of human rights groups, said that Nicole Brown Simpson struggled with her assailant or assailants and that she was not lying on the ground when she was killed, as the prosecution contends.

Defense lawyer Robert Shapiro used Dr. Baden to undermine the testimony of Los Angeles coroner, Dr. Lakshmanan Sathyavagiswaran, a prosecution witness who told the jury he believed that the fatal wounds to Goldman and Simpson were inflicted by someone more than six feet tall. O.J. Simpson stands six feet, one inch.

Dr. Baden said the evidence in this case does not give a medical examiner sufficient information to determine the physique of the assailant or assailants, nor if there was more than one knife involved in the murders. It would be "easier to tell whether or not a person who was the subject of cremation had a mustache," he said.

Working on the case since June 14, 1994, two days after the murders, Dr. Baden described numerous mistakes by the coroner's office and police work that have diminished the value of the evidence.

He said important trace evidence could have been lost because Nicole Brown Simpson's hands were not protected in transportation and that investigators should have done a better job determining the origin of blood drops on her back.

Mold on the victim's clothing, which he viewed at the coroner's office, is indicative of the poor conditions there, he said. He noted several autopsy mistakes, including a bruise to Nicole Brown's head and cuts in her Adam's Apple not recorded in the report.

On cross-examination prosecutor Brian Kelberg had Dr. Baden reveal that he has billed the defense around $100,000 for his services and may bill another $65,000 for additional hours spent on the case. The doctor also told the court that he never published any article in the areas that he was testifying about and that his primary area of expertise is death by drug abuse.

AUGUST 11 - The gruesome autopsy and crime scene pictures of a stabbed and slashed Nicole Brown Simpson were again displayed before the jury as prosecutor Brian Kelberg attacked the theories of renowned forensic pathologist and defense expert witness Dr. Michael Baden.

Kelberg portrayed Dr. Baden as a hired gun who drew conclusions about the night of the murders with few facts.

On direct examination, Dr. Baden contradicted the testimony of Los Angeles Coroner Dr. Lakshmanan Sathyavagiswaran, who said the murderer most likely knocked down Nicole Brown, killed Ronald Goldman and then returned to lift back her head and slash her throat.

In Dr. Baden's theory, Nicole Brown desperately fought for her life and her murder occurred later on June 12, 1994 than the prosecution contends.

Dr. Baden had pointed to several defensive wounds on Nicole Brown's body. But Kelberg forced Dr. Baden to admit that those wounds do not reveal how long the struggle lasted. The term "defensive wound" is something of a misnomer in that someone can receive such wounds even if that person is not in a defensive position, Dr. Baden said.

Though witnesses on both sides have criticized the autopsies of Nicole Brown Simpson and Ronald Goldman, Kelberg's questioning aimed to minimize the autopsy's harmful effect on the prosecution's case.

Though the Los Angeles coroner did not do an excellent job, the autopsies were better than most and even "better than the autopsy of President Kennedy," said Dr. Baden, who led a commission several years ago to reopen the investigation of the slain president's murder.

As it has been throughout the trial, Friday's session ended at noon. Judge Lance Ito grew impatient with Kelberg and told the prosecutor to listen to the jurors' groans as testimony stretched into lunch time. Kelberg pleaded first for another 15 minutes, then for another five, before finishing.

WEEK 30