“Let’s look back at the picture of the gate on June thirteenth.”
The photo was displayed on the Elmo. No blood to be seen.
Scheck turned to Dennis and in a tone as contemptuous as it was shrill, inquired, “Where isss itttttt, Misterrrr Fung?”
That line, of course, became the sound bite du jour. But it was revealed for the empty histrionics it was when we introduced our own shot of the gate-which showed that at least one of the stains was clearly visible.
Scheck moved on to another tack, building to what he no doubt expected would be a boffo climax. He’d hoped to establish that Phil Vannatter had kept custody of Simpson’s reference vial long enough to plant the blood to frame him. Fung had testified that Phil had brought it to Rockingham in the late afternoon of June 13 and personally handed it over at about 5:20 P.M. But there was no written record of that exchange. Scheck produced a series of video clips from a local station, KABC. They showed Fung and Andrea Mazzola leaving the house, putting various items into the crime-scene truck. But a gray envelope carrying the blood vial was not among them.
Scheck tried to cast Dennis in the role of a conspirator by suggesting that he’d lied about ever receiving the blood from Vannatter. In an attempt to establish this, he produced a crime-scene checklist filled out by Fung and Mazzola and turned over to the defense during discovery. Page 4 of this document was different from the others. It was not an original; it was a photocopy. You could tell that because there were no staple holes, just black hen scratches where the holes should have been.
Scheck intended to use this to suggest that the original page would have shown Dennis’s actual log-cut time, which, he speculated, was 5:15 P.M. (This was based upon nothing, as far as I can tell, but Scheck’s fevered imagination.) Since Vannatter arrived at 5:20, that would mean the two had missed each other.
“If there were something filled in there that said five-fifteen as to the time leaving the scene,” Scheck charged, “that would be inconsistent with what you wrote [5:20 P.M.] on the gray envelope you received from Detective Vannatter?”
Hank objected. He was overruled.
“If there was that time there,” Dennis said meekly. “Yes, it would.”
Scheck acted as though he’d cornered the kidnapper of the Lindbergh baby.
“And that is why you destroyed the original page four, Mr. Fung?”
At the break we noticed that Dennis happened to be holding his case notebook.
“Dennis,” Hank asked him, “could I take a look at that?”
Hank quickly flipped through the binder. And from a pocket on the inside cover, he withdrew the original of the infamous page 4. It was identical to the photocopy. No mention of 5:15 P.M. or any other time. We decided that we would not share this development with Scheck. He had, after all, ambushed us with the copy; let him find out about the original the hard way.
The timing was perfect, because after the break Hank started redirect.
“During the recess, sir,” he asked the witness, “did you have an opportunity to look in your notebook and find the original of page four?”
Yes, he did. Dennis produced the form.
Scheck predictably screamed “discovery violation,” but this time Ito tuned him out and let Hank pass the original of the disputed page 4 among the jurors.
Live by the sword, die by the sword, buddy.
Still, lodged in the jurors’ recent memory were those snippets of videotape that Scheck had introduced, showing Dennis and Andrea purportedly leaving Rockingham without the vial of Simpson’s blood. These, he’d intimated, showed that Dennis had deceived the court when he’d testified about receiving the blood vial from Vannatter.
Now, Dennis Fung might be a dope, but he was not a liar. We knew the truncated footage did not tell the whole story.
Hank and Bill Hodgman were quietly negotiating with KABC for the portion of their videotape that had not aired. Normally, broadcasters are reluctant to release unaired material. Maybe the execs over at the station felt Fung deserved a break, I don’t know. Anyway, on Easter Sunday, Hank was in the office, working with Fung on upcoming redirect, when the unedited footage arrived.
There is a wonderful account of this in Hank’s own book, The Prosecution Responds. He tells how he and Dennis sat over bagels and lox and ran the outtakes. Sure enough, at 5:17 P.M. by the time counter, there was Phil Vannatter strolling up the Rockingham walk. “He was carrying a leather attaché case,” Hank recalled, “the way a schoolboy would carry a notebook against the side of his body. A gray piece of paper sat on top of the attaché case. A gust of wind blew back the top of the paper, allowing us to see the reverse side. We could clearly observe the flap and metal clasp, showing that it was the back of an envelope.”
The envelope carrying the blood vial. Dennis could identify it by the form printed on the face of the envelope.
“We could see a long shot of the front door at Rockingham,” Hank writes. “Just inside the foyer, we could see Dennis. In one hand he had the plastic garbage bag. In the other, he had what could only have been the evidence envelope containing the vial.”
Dennis jumped up for joy, screaming, “Yes! Yes! Yes!”
First thing on Monday, Hank played that tape for the jury. Barry was forced to eat crow.
“Your Honor,” he said with uncharacteristic humility, “we have viewed the… tape. It is certainly enlightening.”
The defense ended up stipulating to the time on KABC’s footage. And Hank went on to do a beautiful job on redirect.
Dennis stepped down on April 18. He’d been on the witness stand over two interminable weeks. Most of this time had been pissed away on Scheck’s cross. As Dennis tried to make his escape from the courtroom, he was intercepted by a jubilant defense team, who shook his hand and greeted him like a long-lost relative. I was baffled. For starters, why were attorneys for the defense displaying public affection for a man who, they’d just claimed, helped frame their client? And why on earth was Fung allowing himself to be fawned over by these hypocrites? When Hank asked him about it later, Dennis replied that he’d been “somewhat in a daze” after leaving the witness stand. And knowing Dennis, that answer rings true.
It is that curious image of him fraternizing with his tormentors that lingers in the memory of the public. Seared with equal clarity into the American consciousness are those shrill invectives of Barry Scheck. What amazed me was that he drew such favorable reviews for his performance.
No question, Fung turned in a sorry performance. But in the end, Scheck bluffed, Hank called him on it. And Barry had to fold.
CAR TAPE. April 18. Just heard that some idiot out there’s come out with an unauthorized biography on me. The weird thing is to see the change in the judge’s attitude… It’s like, the more famous I get the more he’s willing to pay deference, to be nicer to me… Ito is really somebody who is very affected by the media stuff, by popularity, you know? When Johnnie was the most famous one… he was very deferential, to the point of idiocy. But I think having the press call him on his deference to Johnnie and then maybe hearing the jurors say that Johnnie was in control of the courtroom perhaps set him back a bit. But I think what set [Ito] back even more is seeing my getting famous. It’s all of a sudden somebody else whose favor he needs to curry. Very weird. Very, very weird.
CAR TAPE. April 27. Constantly sick. I can’t seem to recover. Finally, my teammates pushed me in to the doctor… I just need rest. With all this stress, I mean, it’s impossible. I can’t just go home and lie down. There’s just no corner. I really hope something gives somewhere. This is just too much. Fortunately, it’s not my witness who’s up right now, and I can afford the luxury of concentrating on the custody case for a little bit.