Same with the blood on the rear gate. Lange noticed it the morning after the murders. So did at least two other officers. Three weeks before Dennis took the stand, Hank and Woody-during one of their many late-night work sessions-came across a police photo of the inside of the gate taken from about fifteen feet away. In this “perspective shot,” as such photos are called, one of the bloodstains was clearly visible under magnification.
The real stumbling block for the defense remained those blood droplets leading up the walkway at Bundy, away from the bodies. No way could they have been planted. They’d been collected during the early-morning hours of June 13, before Simpson had been questioned, let alone had his blood drawn. Where would Mark Fuhrman, Phil Vannatter, or anyone else in this alleged conspiracy have gotten hold of any of O. J. Simpson’s blood, even if they’d had a mind to plant it?
The only path open to the defense was to claim that the Bundy blood trail was either so degraded or so contaminated by the LAPD’s sloppy collection work that the results had gone haywire.
We suspected the Dream Team was planning to make its contamination case upon the crushed bones of Dennis Fung. And so Hank spent days and days preparing him. He reported back to me that he thought Dennis would be “okay.” Dennis’s “tentative demeanor,” as Hank put it with characteristic delicacy, might actually be endearing to the jury.
On April 3, Dennis Fung took the stand.
Hank did a very smart thing. But since it was a quiet and intelligent thing, it went largely unnoticed by the press. He led Dennis step-by-step through the process of evidence collection, leading up to the subject of “substrate controls.”
Now, please. Hang tough while I explain. Substrate control is a fancy term for a very simple concept. Once you understand it, it should help you see why the contamination theories put forward by the defense were such utter nonsense.
What happens is this. A criminalist goes into a room and sees blood on, say, the carpet. He lifts a sample from the bloody spot and smears it on one little square of cotton cloth. That’s the “evidence sample.” Then he goes just a little beyond the stain to what looks like clean carpet, and he tests that. He puts this on another cotton cloth, to make what scientists call the “control.”
So, you test the control. If it shows traces of another blood type, that tells you that there may be contamination. But if the control comes up clean-formidable! You can safely infer that the DNA profile on the evidence sample is valid. It tells you that the criminalist did his job right. If Dennis’s procedures were so sloppy that the bloodstains he collected had become contaminated, then the controls-collected under identical circumstances-would have been contaminated in an identical fashion. In fact, every one of Fung’s controls came up clean as a whistle.
The controls should have rendered moot any further argument about the validity of the sample. But they did not. Barry Scheck kept Fung on the stand for seven days over the course of two weeks. The entire time Scheck slashed away at him in his nasal, nails-on-chalkboard voice for things like storing the samples in a hot truck, and accusing him of handling evidence without gloves and not using a fresh set of tweezers for each swatch.
Red herrings all. Later in the trial we would bring on Gary Sims of the California Department of Justice, who set the record straight. DNA is a much tougher material than the defense would have you believe. Gary described tests run by the FBI in which agents had done about every stupid thing you could think of to contaminate evidence. They’d used the same pair of scissors to cut different swatches without cleaning them in between. One analyst had sweated on samples before testing them. One agent coughed on samples for a solid minute. The testers even shook dandruff on their samples. In each case, the contaminants had no effect on the DNA profile. Even the defense’s own expert witness, Henry Lee, would later testify that a cop could track blood from the crime scene or the heel of his shoe, and that blood could produce a valid test result. As for degradation, DNA gives valid results on body parts found out in the jungle after days of exposure to hot sun, dampness, insect infestation, and animal scavenging. You’re going to destroy it during a few hours in a warm truck?
The bigger point, however, was this: under no circumstances could either contamination or degradation yield a set of flawed results all pointing to a single suspect. And yet, this was the very premise upon which Scheck sought to discredit Fung.
I found little to admire in Barry Scheck. Here was a man who was an expert in the science of DNA. He believed in it. He’d staked his reputation on it. He and his partner, Peter Neufeld, had founded an organization called the Innocence Project, which routinely used DNA testing to exonerate defendants falsely convicted of crimes. He knew what contamination and degradation could and could not do to a sample.
Now, you could argue, “He’s a defense attorney. A defense attorney knows what the truth is and he argues counter to it all the time.” But when a lawyer who’s an authority in science gets up and puts forward a defense based on what he knows to be scientifically incorrect, you’re talking about something far worse than professional sophistry.
Not only did I find Scheck’s performance intellectually dishonest, I considered him by far the most obnoxious lawyer in that courtroom. And that’s saying a lot. Scheck’s treatment of Dennis Fung was deplorable. Even Lee Bailey had displayed a fundamental courtesy to Mark Fuhrman while dueling to the death with him on cross.
Not Scheck. He knew he was going up against a witness who was easy pickings, someone from whom he could have extracted every concession he wanted, with kindness. And yet he set upon Fung like a common bully, jabbing a stubby finger in his face and screaming “Liar!”
Dennis, who wanted only to please, buckled in the first ten minutes.
Scheck would pose to him absurd hypotheticals. Remember the blanket Tom Lange had found inside the condo and spread over Nicole’s dead body? It was back to haunt us. Barry contended that when Tom performed this act of decency he had “contaminated” the crime scene. O. J. Simpson had visited this residence, Scheck observed. He might have “sat or laid” on that blanket and shed his own hair on it.
“Could that, in your expert opinion,” he asked Dennis, “be a source of secondary transfer of his hairs to the crime scene?”
Hank and Chris and I cringed. We knew what was coming.
“It’s possible” was the reply.
“… Are you with me so far?” Barry queried.
“It’s kind of hard to follow,” Dennis replied. “But yes.”
“And if a dog… Kato the dog… were lying on this blanket… dog hairs can be transferred to the blanket?”
“Yes.”
“And the dog itself may have hairs and fibers from other people with whom it has been in contact?”
What Dennis could have said, and should have said, was this: “Counselor, if you’re asking me if that blanket could transport dog hairs that were carrying Mr. Simpson’s hairs that subsequently found their way to the inside of the knit cap, I’d have to say this scenario is too ludicrous to warrant serious consideration.”
Instead, Dennis replied, “Yes, there’s a chance.”
Scheck hoped to use Fung to advance the theory that the blood on the back gate at Bundy had been planted sometime later than June 13. He got Fung to say that he had not seen the blood himself that morning. Fung also testified that he’d not heard Tom Lange ask him to collect the stains on the morning of the first search.
Scheck pulled out one of the photographs of the back gate taken at such an angle that the blood spots were not apparent.