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O.J. Simpson trial: Debate over 'Fuhrman Tapes' heats up

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(Court TV) -- Developments in the murder trial of O.J. Simpson from July 31-August 4, 1995

Did the defense blink?

Defense lawyers decided against pursuing an important line of questioning after prosecutor Marcia Clark suggested she might use photographs and videotapes to link O.J. Simpson to a pair of incriminating gloves.

Clark didn't disclose how she would prove that the gloves Simpson wore while broadcasting football games were the same gloves worn as he allegedly stabbed to death his ex-wife and her friend.

At a hearing in which the defense asked Judge Lance Ito to bar prosecutors from presenting the pictures and videos, the judge asked Clark, "Can you establish the foundation that those gloves are the same gloves?"

Yes, I can," she replied confidently.

After a pause, Ito said, "Interesting."

The defense wanted to offer testimony from bloodstain expert Herbert MacDonell who conducted an experiment to determine the extent to which gloves soaked in blood would shrink. Before questioning MacDonell, defense attorney Peter Neufeld asked Judge Ito to prevent Clark from displaying the shots of Simpson wearing gloves at football games during her cross-examination of MacDonell.

The judge said he would rule on the matter when it arose in cross-examination. Neufeld then announced he would not pursue the line of questioning.

The bloodstained gloves have haunted the prosecution since Simpson was asked to try them on in court. Simpson tugged and pulled on them and told jurors they were too small. Deputy District Attorney Christopher Darden later had Simpson try on new gloves of the same style. Those fit, and Darden suggested the murder gloves had shrunk. MacDonell was expected to testify that blood-soaked gloves would not shrink as much as the prosecution claims.

The photographs and videos of Simpson wearing dark gloves at cold weather football games have circulated for months, but the prosecution did not try to introduce them into evidence. So unless the defense introduces testimony about them, it is unlikely the photos could be used as prosecution rebuttal evidence.

Instead of discussing gloves, MacDonell again testified on his conclusions that bloodstains on the socks had seeped through from one side to the other. The finding, he said, indicated no foot was in the sock when blood was applied to it, supporting the defense contention that the blood was planted.

In her cross-examination of MacDonell, Clark suggested possible explanations of what the witness had called a "compression" bloodstain on one of the socks.

Clark posed the possibility that Nicole Brown Simpson reached out with bloody hands and grabbed her ex-husband's ankle during the attack. She also suggested that Simpson could have touched the socks with his own bloody fingers as he took them off.

MacDonell told jurors such activities could cause the kind of compression stains he described on the stand. And he acknowledged that his original report described "swipes" of blood on the sock rather than compressions, but he said they are the virtually the same type of stains.

Before the glove arguments, the defense tried to question a television reporter about a story she broadcast September 21, 1994 about one of the socks found at the foot of Simpson's bed. She reported that DNA testing had disclosed Nicole Brown Simpson's blood in its fibers. Since her report gave DNA results before the tests were conducted, the defense suggests the anonymous source of the leak knew what the results would be because the evidence had been planted.

Tracie Savage of KNBC-TV said she got the information from "knowledgeable sources close to the case" but refused to identify them further, saying she "gave my word as a journalist that I would not reveal their identities."

She then invoked the California Shield Law, which protects reporters from being forced to disclose confidential sources.

Judge Ito did not immediately decide if her information is so crucial to Simpson's defense that she must divulge it despite the shield. He said he would study the issue.

Defense attorney Robert Shapiro then told the court that another journalist, Joseph Bosco, used the same information for a story in Penthouse magazine and would testify that his source was a member of the Los Angeles Police Department.

Meanwhile, defense attorney Johnnie Cochran Jr., implored Judge Ito to intervene in a North Carolina ruling that denied the defense access to a screenwriting professor's tapes of interviews with Detective Mark Fuhrman.

The defense claims that on the tapes, Fuhrman talks about "framing people, setting people up and filing false reports." The defense also filed notice in North Carolina that the judge's ruling would be appealed.

"These tapes must come to California," Cochran told Ito. "This is absolutely critical, and we are going to go all the way to the U.S. Supreme Court unless she comes forward voluntarily."

The defense has accused Fuhrman of being a racist who framed Simpson. And Simpson's attorneys say the tapes will impeach Fuhrman, who testified earlier that he hadn't used the word "nigger" to describe blacks in the last 10 years.

The prosecution contends Fuhrman, who was working as a consultant on McKinny's fictional project, was role-playing on the tapes.

Ito said he didn't believe he had any jurisdiction over the North Carolina decision but added that he had never faced such a request before.

The judge handed the defense another setback when he issued a written refusal to reconsider his order barring testimony by Christian Reichardt, a former boyfriend of Faye Resnick. The defense had hoped to use Reichardt to lay the groundwork for its theory that the murders were committed by drug dealers pursuing Resnick, a self-described cocaine user.

Judge Lance Ito handed the defense a victory by ruling it could attack the DNA testing procedures at the police crime laboratory.

"This is the heart of our defense," attorney Barry Scheck argued, adding that "the key defense contention regarding DNA is that because of substandard practices in this county, key evidence was cross-contaminated. . . . This has been our contention since opening statements."

Prosecutors objected to the new phase of defense testimony, saying it could be misleading and would unnecessarily prolong the trial.

Judge Ito, who heard arguments outside the presence of the jury, said he would allow the testimony out of fairness because the prosecution was given great latitude in presenting its elaborate DNA evidence. He explained that PCR-based DNA testing is sophisticated and subject to problems like contamination. Therefore, the judge said defense expert Dr. John Gerdes could testify about systemic problems with PCR and widespread contamination within the lab. The judge told Scheck to complete his questioning of Gerdes within six hours.

Before the DNA hearing, blood spatter expert Herbert MacDonell completed his testimony. He told jurors that a murderer's foot couldn't have been inside a sock when it was stained with Nicole Brown Simpson's blood. The defense contends the blood was taken from a vial of her blood and smeared on the sock.

Deputy District Attorney Marcia Clark offered a different explanation in her cross-examination, suggesting the socks were wet with perspiration and blood before they were taken off and left flat, allowing blood to seep through. MacDonell said that was possible.

However, in redirect examination, the witness said his examination of microscopic photographs taken by another forensic scientist showed no sign of perspiration that would have diluted blood on the sock.

While MacDonell was the only witness to testify before the jury, the day was filled with numerous developments and arguments before the judge.

Michele Kestler, director of the Los Angeles Police Department crime lab, testified outside the presence of the jury that she thought a news leak about DNA tests on the socks came from outside her lab. She conducted no investigation beyond speaking with a couple of employees who had access to the test results.

"I just feel that our employees have too much integrity and honesty and have been involved in many, many cases before, and we have never been a source of any leaks," she said.

The defense claims the leak showed that someone was determined to frame Simpson with his ex-wife's blood by reporting that DNA tests had disclosed results when the socks had not yet been sent out for testing.

Author Joseph Bosco, also outside the jury's presence, testified he wrote a Penthouse magazine article attributing the socks leak to a Los Angeles police officer. He said his article was accurate. Bosco refused to give more details. He invoked the California Shield Law, which protects reporters from revealing sources. The judge didn't immediately decide if Bosco would be forced to give more information.

The defense presented previous testimony from jail nurse Thano Peratis who drew blood from Simpson's arm at police headquarters the day after the murders.

A videotape of Peratis' testimony from last summer's preliminary hearing was played, and jurors heard the nurse say he drew approximately 8 millimeters of blood from Simpson, placed it in a test tube containing the lab preservative EDTA and handed it to a detective who placed the vial in a gray envelope.

The defense contends 1.5 millimeters of that blood is missing and that the police sprinkled it on evidence to link Simpson to the crime.

An expert defense witness, who has studied the proficiency of DNA labs across the country, said the Los Angeles Police Department's crime lab has the worst levels of contamination that he has ever seen and should be shut down.

Dr. John Gerdes, the clinical director at Immunological Associates in Denver, who has investigated 23 forensic cases in cities across the United States, said the work of the prosecution's DNA experts is -- at best -- unreliable.

"The LAPD has a substantial contamination problem," Gerdes said. "It is chronic in the sense that it doesn't go away."

Defense lawyer Barry Scheck presented a chart showing a list of problems in forensic testing that create a higher risk of contamination and error. These include dirty samples, minuscule sample sizes, mixed samples from unknown sources, multiple handling, and statistical controversy.

Gerdes criticized the work of LAPD criminalists Dennis Fung, Andrea Mazzolla and Collin Yamauchi, all of whom testified for the prosecution. Compared to other labs, he said the LAPD handles its samples more and its proficiency tests are lax.

Since the LAPD collected the all the biological evidence used by the prosecution, tests based on that evidence by other laboratories are highly questionable, he said.

Judge Lance Ito allowed six hours for his direct examination of Gerdes, leaving Scheck less than an hour to conclude when court resumes. On cross-examination, the prosecution is likely to point out that in the Simpson case the LAPD conducted tests that indicate there was no contamination. In addition, there is a record of instances in which Gerdes erroneously identified contamination at the LAPD.

The prosecution is also expected to bring out that Gerdes' tests are limited to PCR-based DNA testing. Even if his criticism is correct, the more definitive RFLP tests also showed Simpson's genetic markers.

Thursday's Developments: An expert defense witness continued to cast doubt on the prosecution's DNA evidence and the Los Angeles Police Department's crime lab.

But under cross-examination, Dr. John Gerdes, a microbiologist and the clinical director at Immunological Associates in Denver, admitted that he has never conducted a forensic experiment and could not categorically deny that O.J. Simpson and Ronald Goldman were the source of the blood found in Simpson's Ford Bronco.

Prosecutor Clarke attacked Gerdes' qualifications, getting Gerdes to admit that he is not a member of any professional associations in the forensic community and does not attend professional meeting on PCR testing.

Nevertheless, Gerdes has testified 23 times against the use of PCR-based DNA testing, Clarke pointed out.

To prove that PCR testing is sound, Clarke noted that several scientists whom Gerdes respects use the procedure, which is largely accepted in the scientific community.

Clarke buttressed this point by questioning Gerdes about several articles that attest to PCR's reliability.

Gerdes clung to his contention that the contamination at the LAPD crime lab rendered key DNA evidence unreliable as Clarke questioned him about several instances when he allegedly erred in reporting lab contamination.

Earlier in the day, Judge Lance Ito scheduled a hearing for next Tuesday on whether the defense should be required to turn over a tape recording from Gretchen Stockdale, a former girlfriend of Simpson's. On the tape, recorded a few hours before Nicole Brown Simpson was murdered, Simpson allegedly said he is "totally unattached with everybody."

The prosecution claims Stockdale gave the tape to a defense investigator and that the defense refuses to hand it over. At issue is whether the tape is an original. If it is, Judge Ito said the prosecution is entitled to it.

The prosecution revealed that a new, but unfinished, DNA test would supply further potent evidence to tie O.J. Simpson to the murders of Nicole Brown Simpson and Ronald Goldman. But Judge Lance Ito said the tests may have been started too late to be used in the trial.

Outside the presence of the jury, prosecutor Rockne Harmon said that the test on blood found under the console of Simpson's Ford Bronco tentatively shows a match with Simpson and Goldman's blood.

Thus far, no evidence has been presented to show that Simpson and Goldman ever had contact or that Goldman had an opportunity to be inside the Bronco. Harmon described it as the "other shoe" in the state's effort to use DNA to prove its case.

But Judge Ito said that he had difficulty with the fact that the California Department of Justice was slow in beginning the test -- known as Restriction Fragment Length Polymorphisms or RFLP -- which can take several weeks to perform, but is considered more accurate than the other type of DNA test performed on evidence in this case -- known as Polymerase Chain Reaction or PCR.

Harmon disclosed the tentative test results at a hearing to determine if the prosecution could ask defense DNA expert Dr. Gerdes if an RFLP test on blood found in the Bronco would corroborate the PCR results. Dr. Gerdes has testified that DNA evidence has been tainted by sloppy police work and that PCR tests are unreliable.

Judge Ito refused to allow the question.

Under cross-examination, Dr. Gerdes conceded that not all of the blood samples were extracted for DNA by police criminalists at the Los Angeles Police Department crime lab. These samples were sent to laboratories that the witness has not attacked for contaminating evidence.

After prosecutor George "Woody" Clarke objected to several of Dr. Gerdes' responses, Judge Ito ordered the witness to answer the question and the doctor admitted the other labs performed the extractions.

But Dr. Gerdes added that the samples "went through the LAPD" if only for packaging and transportation.

Clarke also had Dr. Gerdes acknowledge that his lab billed the defense $30,000 for his work in the case in an effort to show that the doctor's conclusions may be biased. E-mail to a friend E-mail to a friend

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