Cochran Focuses on Handling of Evidence

On a day in which the O.J. Simpson defense team was confronted with a new challenge to one of its witnesses, attorney Johnnie L. Cochran Jr. took aim at a potentially important drop of blood and at a Los Angeles police detective’s explanation of why four officers were needed to notify Simpson of his ex-wife’s death.

Detective Tom Lange, an LAPD veteran who has investigated more than 250 homicides and is one of two lead investigators in the Simpson case, has been on the stand for three days, but Wednesday was Cochran’s first opportunity to question him at length.

Simpson’s lead trial lawyer used that chance to advance the central themes of the defense--that the police focused on Simpson immediately as the likely culprit and that they conducted a sloppy investigation, missing leads that might have pointed to other suspects and allowing potentially important evidence to become contaminated.

The questioning of Lange took almost the entire court day, but two other developments bracketed the session and raised new potential problems for the defense:

* Taylor J. Daigneault, the lawyer for a witness who alleges that LAPD Detective Mark Fuhrman made racially inflammatory remarks to her in the mid-1980s, wrote to Superior Court Judge Lance A. Ito on Jan. 27 saying that she would prefer not to testify if she was going to be subjected to a wide-ranging cross-examination. In an interview, Robert Tourtelot, Fuhrman’s lawyer, said it would be unfair to question his client about alleged racism if prosecutors are precluded from waging a rigorous challenge to the credibility of the witness, Kathleen Bell.

Prosecutors agreed, and filed a motion Wednesday saying that Simpson’s lawyers should not be allowed to question Fuhrman about the alleged remarks if Bell is no longer prepared to stand behind her statements. Daigneault, however, said that although Bell is not eager to take the stand, she will do so if ordered: “The truth of the matter is that from the very beginning to this point in time Kathleen Bell’s position has not changed. If she is subpoenaed to testify in this case, she will testify and tell the truth.”

* Prosecutors complained that defense attorneys are withholding statements, notes and reports of their expert witnesses and asked Ito to bar the defense from calling those witnesses unless those materials are turned over promptly. Ito did not rule on that request but set a hearing on the subject for next week.

Those developments took place out of earshot of the jury, but in court, the panel heard a full day of cross-examination by Cochran, much of it devoted to questions about the handling of the police investigation. Simpson has pleaded not guilty to the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman.

Defense charges of a botched investigation touch on a number of areas--the failure of officers to photograph an ice cream container and burning candles inside Nicole Simpson’s condominium, for instance, as well as the coroner’s failure to collect and test blood drops splattered across Nicole Simpson’s back, and the coroner’s failure to save her stomach contents, which might have helped establish the time of death.

In response to questions from Cochran, Lange also acknowledged that the victims’ hands were not sealed in plastic bags before the bodies were moved and that no effort was made to study tire tracks in an alley behind Nicole Simpson’s condominium, where the murders occurred.

Cochran addressed all those issues Wednesday, but he directed special attention to a blood drop found on condominium’s back gate.

Prosecutors say that a DNA test performed on that drop suggests that Simpson is the source of the blood, but Lange acknowledged under cross-examination that the drop was not collected until July 3, weeks after the killings. By then, police had long since taken down the yellow tape restricting access to the murder scene, exposing it to the hordes of reporters and sightseers who descended on the Brentwood neighborhood in the wake of the slayings.

“You’re aware that after the crime scene perimeter was taken down . . . they had a number of looky-loos and others, tourists from around the world, came in and around that location?” Cochran asked.

“Yes,” Lange responded.

The questioning of Lange, though deliberate and sometimes repetitive, was rarely confrontational. But the police detective occasionally did bridle at Cochran’s queries, and late in the day, Lange appeared to surprise Cochran when the defense lawyer suggested that police should have investigated the possibility that Nicole Simpson had been raped.

“In my observations and my experiences, sex was the last thing on the mind of this attacker,” Lange said as Cochran frantically tried to interject an objection. “It was an overkill, a brutal overkill. There was no evidence of rape, no evidence of sexual assault.”

Ito overruled Cochran’s attempt to have Lange’s comment stricken from the record, and the exchange ended the court day.

Earlier, during a discussion of whether the hands of the victims should have been bagged in plastic to preserve trace evidence, Cochran suggested that the detective had failed to take steps to preserve potentially significant clues.

“Wouldn’t the best way to do that (preserve evidence) would be to put bags over the hands to protect it for later analysis, isn’t that correct?” Cochran asked.

“That’s one way,” Lange responded crisply. “There are other ways.”

In fact, Lange said, both bodies were wrapped in plastic, which he said ensured that trace evidence was not lost.

Cochran also attempted to undermine Lange’s contention that four officers had gone to Simpson’s house soon after the bodies were discovered in order to notify Simpson of the killing, to tell him his children were at the police station and to establish a rapport with him.

Showing Lange a report from the night of the killings, Cochran pointed out that detectives already knew that Simpson had previously been arrested for beating Nicole Simpson by the time they went to his house to notify him of her death. Lange said a colleague, Detective Ronald Phillips, informed him of that fact before the two detectives and their partners set off for Simpson’s house just before 5 a.m. June 13.

That information, Cochran suggested, must have given police reason to suspect Simpson. If so, that would cast doubt on Lange’s insistence that the officers were headed to Simpson’s house only to notify him of the deaths, rather than to question him as a possible suspect.

“Was one of the reasons that you went over there because you thought he was a suspect in this case?” Cochran asked.

“No, not at that time,” Lange said.

Whether the jury will accept that contention is a potentially crucial question that could bear directly on the outcome of the Simpson trial. If the jury believes Lange, it would strengthen the prosecution argument that officers only arrested Simpson when they believed that the evidence firmly implicated him in the double homicide. But if the jury does not find the detective credible, it could form the basis for doubting his testimony and that of other police officers.

That would dovetail with the defense position that officers rushed to judgment and then either ignored clues pointing to other suspects or even went so far as to manufacture evidence against Simpson.

With so much riding on Lange’s testimony, Cochran attempted to chip away at the detective’s credibility not only by pointing out possible problems with the investigation but also with subtle digs at his character. At several points in his questioning, Cochran pointedly noted that Lange lives in Simi Valley--a predominantly white community much maligned as the site of the trial in which Los Angeles police officers were found not guilty in connection with the 1991 beating of Rodney G. King.

Those verdicts outraged many Los Angeles residents, but nowhere was the anger more pronounced than in the city’s black community. The jury weighing the evidence against Simpson includes nine African Americans.

Although Lange’s testimony occupied the entire portion of the day for which the jury was present, outside the presence of the panel the two sides resumed their squabbling over evidence sharing, and the defense was confronted with the latest challenge to one of its witnesses.

The witness, Bell, has formed the central basis for the defense’s attack on Detective Fuhrman. In a sworn declaration last summer, Bell said Fuhrman had maligned African Americans and had boasted that he would manufacture evidence if it would implicate partners in an interracial couple.

Through his lawyer, Tourtelot, Fuhrman has denied meeting Bell or making the comments attributed to him. Nevertheless, Ito has allowed defense attorneys to question Fuhrman about the alleged statements.

But Bell’s lawyer, Daigneault, wrote to Ito on Jan. 27 to say his client was concerned about the potential for undergoing a public attack on her character if she takes the stand. Bell would not have the right to refuse to testify if put under subpoena by the defense, but if her reluctance suggests that she is having second thoughts about her claims, it could deprive the defense of its strongest admissible evidence that Fuhrman may be a racist.

Since those accusations were first leveled, authorities have sought to gather evidence about Bell’s past, and Fuhrman hired Tourtelot and private investigator Anthony Pellicano to defend him. Daigneault said he is aware that Bell has come under intense scrutiny and acknowledged that she would “prefer not to be a part of this fiasco.”

Although Ito has not ruled on the prosecution request to limit the questioning of Fuhrman based on Bell’s reservations, legal experts said the proposal could have some merit.

“If Kathleen Bell is unwilling to testify, then Judge Ito should reconsider whether the defense can question Fuhrman about her alleged comments,” said Laurie Levenson, a Loyola law school professor. “There may be no credible basis for them.”

But Cochran called the prosecution motion baloney and said he expected Bell to take the stand. Carl Douglas, another of Simpson’s lawyers, agreed.

“So long as she’s been duly served with a subpoena . . . then she will be called as a witness, and she’ll testify,” Douglas said as he left court.

In a motion unsealed Wednesday, meanwhile, prosecutors argued that Simpson’s lawyers have failed to turn over notes and other materials collected by expert witnesses who may testify on Simpson’s behalf. In an order released Jan. 29, Ito ordered all such materials to be turned over immediately.

Among the defense experts whose testimony could be affected by the latest prosecution request are Dr. Lenore Walker, a nationally recognized expert on battered woman’s syndrome, and Dr. Kerry Mullis, the controversial inventor of a form of DNA testing that is being used by authorities in this case.

In his three days on the stand, Lange has provided an overview of the physical evidence that authorities say links Simpson to the crimes. Speaking blandly but precisely, Lange detailed the blood drops, bloody footprints, gloves, knit cap and other items that lie at the heart of the prosecution case.

But Lange did not tell the jury about two things of potentially great significance: He did not describe the results of tests performed on blood, hair and fiber samples, and he did not testify about what Simpson told him and his partner when the football Hall of Famer was interviewed the day after the murders.

Expert witnesses who may begin testifying next week are likely to address the DNA tests. But some legal experts believe the prosecution’s decision not to question Lange about Simpson’s statement to police may reflect the government’s intention not to introduce the statement unless the defendant takes the witness stand.

When Cochran attempted to question Lange about Simpson’s statement, Deputy Dist. Atty. Marcia Clark sternly objected, interjecting several times before Ito called the attorneys to the sidebar to discuss the issue in private.

Electing not to introduce Simpson’s statement would be a strategic move that would deprive the prosecution of at least one potentially helpful comment to the case against Simpson: In his 33-minute interview, Simpson told police that he had not been to his ex-wife’s house for almost a week before the killings and had not cut himself while there, raising questions about how blood with his genetic markers could have ended up at the murder scene.

But the rest of the interview contains little that would be likely to hurt Simpson, as he vehemently denied any responsibility for the crimes. And legal analysts said prosecutors would not be allowed to introduce a portion of the statement.

“The problem is if they put on his statement they basically have given Simpson a chance to testify without being cross-examined,” said Myrna Raeder, a Southwestern University School of Law professor. “If they introduce part of it, then the defense can argue that the whole thing can only be understood in context.”

That would not preclude prosecutors from using the statement to cross-examine Simpson if he took the stand in his own defense, however. Defense lawyers say a final decision on whether Simpson will testify still has not been made.

Lange’s prolonged testimony continues this morning and has delayed the appearance of Brian (Kato) Kaelin, the guest house tenant at Simpson’s estate. Kaelin testified during last summer’s preliminary hearing about hearing thumps outside his window sometime after 10:30 p.m. June 12. It was while trying to locate the source of those thumps that Fuhrman allegedly found a bloody glove--one of the most powerful pieces of evidence that could link Simpson to the murders.