Cross-examination of Dennis Fung (part 4)

📄 Cross-examination of Dennis Fung (part 4) — Tuesday, April 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\11\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 54 of 167

◀ Session resumed Sidebar: cross-examination scope ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Tuesday, April 11, 1995 • Utterances: 490

Barry Scheck cross-examines LAPD criminalist Dennis Fung about inconsistencies between his vehicle search checklists and his testimony regarding who helped open the Bronco, and whether blood stains he claimed to have swatched on June 14th were still visibly present in August 1994 photos. Scheck methodically forces Fung to admit his own forms contradict his testimony, that he independently decided not to fully collect blood stains based on his own DNA assessment despite limited training, and that SID supervisors Kestler and Matheson questioned why the stains hadn't been fully collected.

# 1 Q:

BY MR. SCHECK: AS YOU WERE SAYING, MR. FUNG, ON JUNE 28TH YOU WENT TO THIS PLACE CALLED VIERTEL'S; IS THAT CORRECT?

# 2 A:

YES.

# 3 Q:

CAN YOU TELL THE JURY WHAT VIERTEL'S IS?

# 4 A:

VIERTEL'S IS A POLICE IMPOUND LOT.

# 5 Q:

AND WHERE IS THAT LOCATED?

# 6 A:

IT IS ON TEMPLE STREET, THE RAMPART DIVISION, I BELIEVE.

# 7 Q:

YOU ARE AWARE OF THE FACT THAT ON JUNE 15TH THE BRONCO WAS TOWED FROM THE PRINT SHED TO VIERTEL'S?

# 8 A:

I DON'T KNOW WHEN THE EXACT DATE IT WAS TOWED, BUT IT WAS TOWED.

# 9 Q:

ALL RIGHT. BY THE TIME YOU WENT BACK ON JUNE 28TH, HOWEVER, THE BRONCO WAS IN VIERTEL'S; IS THAT CORRECT?

# 10 A:

YES.

# 11 Q:

ALL RIGHT. AND AT THAT TIME YOU NEEDED TO OPEN THE BRONCO AGAIN TO CONDUCT A FURTHER SEARCH?

# 12 A:

ON THE 28TH?

# 13 Q:

ON THE 28TH?

# 14 A:

ON THE 28TH I BELIEVE IT WAS UNLOCKED.

# 15 Q:

WELL, ON THE 28TH YOU WERE GOING BACK THERE TO SEARCH FOR THE SHOVEL, THE PLASTIC BAG AND THE TOWEL?

# 16 A:

YES.

# 17 Q:

AND YOU FILLED OUT A VEHICLE SEARCH CHECKLIST FOR THAT SEARCH ON THE 28TH?

# 18 A:

YES, I DID.

# 19 Q:

AND YOU HAVE IT THERE BEFORE YOU, DO YOU NOT, SIR?

# 20 A:

YES, I DO.

# 21 Q:

AND IN THE BOX WHICH INDICATES "HOW OPENED" YOU WROTE "B.A.D. D-E-T-S"; IS THAT CORRECT?

# 22 A:

THAT'S CORRECT.

# 23 Q:

ALL RIGHT. DO YOU HAVE THAT PAGE IN FRONT OF YOU RIGHT NOW?

# 24 A:

YES, I DO.

# 25 MR. SCHECK:

MAY I APPROACH THE WITNESS, YOUR HONOR?

# 26 THE COURT:

YES.

# 27 (BRIEF PAUSE.)

# 28 MR. SCHECK:

YOUR HONOR, MAY I TAKE THE PIECE OF PAPER OUT OF THE WITNESS' BOOK AND PUT IT ON THE ELMO?

# 29 THE COURT:

IS THAT THE ORIGINAL, MR. FUNG?

# 30 DENNIS FUNG:

NO, IT IS NOT.

# 31 THE COURT:

DO YOU HAVE A CLEAN COPY?

# 32 MR. SCHECK:

I DON'T HAVE A CLEAN COPY AT THE MOMENT. I WOULD PREFER THE ORIGINAL IF THAT IS AVAILABLE.

# 33 MR. GOLDBERG:

I -- I THOUGHT WE DISCUSSED THIS BEFORE.

# 34 THE COURT:

IF THE WITNESS IS REFERRING TO IT WHILE WE ARE HAVING TESTIMONY -- GO AHEAD AND USE WHAT HE HAS, IF YOU HAVE A CLEAN COPY. IS YOURS A CLEAN COPY, MR. FUNG?

# 35 DENNIS FUNG:

SOMEWHAT, YES. THERE IS NO WRITING ON IT, ADDITIONAL WRITING.

# 36 THE COURT:

ALL RIGHT.

# 37 MR. SCHECK:

COULD I JUST PUT --

# 38 THE COURT:

MR. FUNG INDICATES THIS IS A CLEAN COPY WITHOUT ANY ADDITIONAL WRITING. WHY DON'T YOU USE HIS COPY.

# 39 (BRIEF PAUSE.)

# 40 Q:

BY MR. SCHECK: NOW, THIS IS JUNE 28TH; IS THAT CORRECT?

# 41 A:

YES, IT IS.

# 42 Q:

ALL RIGHT. AND YOU INDICATE ON YOUR CRIME SCENE CHECKLIST "HOW OPENED" AND YOU WROTE DOWN "B.A.D. DETECTIVES"?

# 43 A:

YES.

# 44 Q:

SO THAT WOULD BE THE BURGLARY AUTO DETECTIVES DETAIL?

# 45 A:

YES.

# 46 Q:

ALL RIGHT. AND THAT IS JUNE 26TH, CORRECT?

# 47 A:

THAT'S RIGHT.

# 48 Q:

ALL RIGHT. NOW, WOULD YOU TURN AND LOOK AT YOUR VEHICLE SEARCH CHECKLIST FOR JUNE 14TH.

# 49 (WITNESS COMPLIES.)

# 50 MR. SCHECK:

YOUR HONOR, I HAVE A CLEAN COPY OF JUNE 14TH.

# 51 THE COURT:

ALL RIGHT. DO YOU WANT TO MARK THE ONE OF JUNE 28TH?

# 52 MR. SCHECK:

YES. I WILL MARK THE PAGE FROM THE VEHICLE SEARCH CHECKLIST FOR JUNE 28TH AS 1085 AND THE VEHICLE SEARCH CHECKLIST PAGE FROM JUNE 14TH AS 1086.

# 53 THE COURT:

ALL RIGHT.

# 54 (DEFT'S 1085 FOR ID = VEH.CHKLST/JUNE 28)

# 55 THE COURT:

WHAT WE WILL DO IS RETURN THE ORIGINAL TO MR. FUNG AND I WILL HAVE MY STAFF MAKE A PHOTOCOPY FOR THE RECORD. ALL RIGHT. MR. HARRIS.

# 56 (BRIEF PAUSE.)

# 57 THE COURT:

DO WE HAVE A COPY FOR THE RECORD?

# 58 MR. SCHECK:

YES. I'M SORRY.

# 59 THE COURT:

MR. HARRIS, DID YOU CAPTURE THAT LAST --

# 60 MR. HARRIS:

NO, YOUR HONOR. I THOUGHT WE WERE GOING TO USE THE --

# 61 THE COURT:

JUST TRYING TO PROTECT YOUR RECORD, COUNSEL.

# 62 MR. SCHECK:

THANK YOU VERY MUCH.

# 63 Q:

NOW, LOOKING AT THE JUNE 14TH VEHICLE SEARCH CHECKLIST, IN THE BOX INDICATING "HOW OPENED" YOU LEFT THAT BLANK; IS THAT CORRECT?

# 64 A:

YES.

# 65 Q:

ALL RIGHT. BUT IT IS YOUR TESTIMONY THAT THE B.A.D. DETECTIVES DID NOT ASSIST YOU ON JUNE 28TH, BUT THEY DID ASSIST YOU ON JUNE 14TH?

# 66 A:

YES.

# 67 Q:

WHEN YOU FILL OUT THESE VEHICLE SEARCH CHECKLISTS, YOU DO IT CONTEMPORANEOUSLY AS THE EVENTS ARE HAPPENING, DO YOU NOT?

# 68 A:

NOT ALWAYS, NO.

# 69 Q:

WELL, DO YOU FILL IT OUT SOON AFTER THE EVENTS OF THE SEARCH?

# 70 A:

I FILL OUT THE EVIDENCE COLLECTION SHEET CONTEMPORANEOUSLY AND I WILL FILL IN OTHER PORTIONS LATER.

# 71 Q:

WELL, WOULD YOU HAVE WAITED OR DID YOU WAIT TO FILL OUT THE VEHICLE SEARCH CHECKLIST, PAGE 3, ON JUNE 14TH, THE ONE THAT IS RIGHT UP ON THE SCREEN? DID YOU WAIT UNTIL JUNE 28TH TO FILL THAT OUT OR DID YOU FILL IT OUT SOMETIME BEFORE?

# 72 MR. GOLDBERG:

MISSTATES THE EVIDENCE THAT THIS IS THE CHECKLIST FROM THE 14TH.

# 73 THE COURT:

SUSTAINED.

# 74 Q:

BY MR. SCHECK: THIS CHECKLIST CONCERNS THE SEARCH YOU CONDUCTED ON THE 14TH?

# 75 A:

YES, IT DOES.

# 76 Q:

WHAT DATE DID YOU FILL OUT PAGE 3 OF THAT, TO THE BEST OF YOUR RECOLLECTION?

# 77 A:

I DON'T RECALL.

# 78 Q:

WOULD IT HAVE BEEN A WEEK LATER?

# 79 A:

IT COULD HAVE BEEN.

# 80 Q:

WOULD IT HAVE BEEN TWO WEEKS LATER?

# 81 A:

IT COULD HAVE BEEN.

# 82 Q:

IT IS YOUR TESTIMONY THAT YOU ACTUALLY WAITED UNTIL JUNE 28TH TO FILL OUT THE VEHICLE SEARCH CHECKLIST FOR THE SEARCH YOU CONDUCTED ON JUNE 14TH?

# 83 A:

IT MAY HAVE BEEN LATER.

# 84 Q:

WELL, WHEN DID YOU FILL OUT THE VEHICLE SEARCH CHECKLIST FOR JUNE 28TH?

# 85 A:

I FILLED OUT PORTIONS OF THAT ON JUNE 28TH.

# 86 Q:

WELL, LET'S TALK ABOUT THE "HOW OPENED" BOX. DID YOU FILL THAT ONE OUT ON JUNE 28TH?

# 87 A:

I DON'T RECALL IF I DID OR NOT.

# 88 Q:

MR. FUNG, ISN'T IT POSSIBLE THAT YOU ARE CONFUSED BETWEEN JUNE 14TH AND JUNE 28TH AND THAT THE B.A.D. DETECTIVES ACTUALLY CAME ON JUNE 28TH, AS YOUR RECORDS INDICATE, AND NOT JUNE 14TH?

# 89 A:

I RECALL THE B.A.D. DETECTIVE BEING AT THE PRINT SHED AND I DO NOT RECALL A B.A.D. DETECTIVE BEING AT VIERTEL'S.

# 90 Q:

WELL, WOULD YOU AGREE, SIR, THAT IN TERMS OF THE CHECKLISTS, THE FORM THAT YOU ARE SUPPOSED TO FILL OUT TO KEEP YOUR RECOLLECTION FRESH FOR FUTURE TESTIMONY, THAT THE FORMS INDICATE THAT THE B.A.D. DETECTIVES CAME ON THE 28TH; NOT THE 14TH?

# 91 A:

THAT IS WHAT THE FORMS INDICATE.

# 92 Q:

SO DO YOU CONCEDE THAT IT IS EVEN POSSIBLE, SIR, THAT YOU DIDN'T NEED ANY DETECTIVES TO OPEN THAT DOOR FOR YOU ON JUNE 14TH?

# 93 A:

NO, SIR. THE BRONCO WAS LOCKED ON JUNE 14TH.

# 94 Q:

AND YOU ARE SAYING THAT BECAUSE OF YOUR OWN INDEPENDENT RECOLLECTION, NOT BECAUSE YOU THINK THAT THAT IS TESTIMONY THAT THE PROSECUTION WOULD LIKE TO HAVE IN THIS CASE?

# 95 A:

THAT IS FROM MY RECOLLECTION.

# 96 Q:

ALL RIGHT. NOTWITHSTANDING WHAT YOUR FORMS SHOW?

# 97 A:

IN SPITE OF WHAT MY FORMS SHOW.

KEY QUOTE

# 98 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 99 MR. SCHECK:

DID I GIVE YOU BACK YOUR FORM?

# 100 THE COURT:

I NEED TO MAKE A PHOTOCOPY OF THAT FOR THE RECORD.

# 101 MR. DOUGLAS:

WE DID, YOUR HONOR.

# 102 THE COURT:

ALL RIGHT. 1085.

# 103 Q:

BY MR. SCHECK: SO TO SUM IT ALL UP WITH ONE LAST QUESTION, YOUR TESTIMONY IS YOUR FORMS ARE WRONG?

KEY QUOTE

# 104 A:

THAT PORTION IS INCORRECT, YES.

KEY QUOTE

# 105 Q:

ALL RIGHT. NOW, WHEN YOU WENT ABOUT YOUR SEARCH ON JUNE 14TH, WITHOUT TELLING US WHAT WAS SAID, DID EITHER DETECTIVE LANGE OR VANNATTER SHARE WITH YOU A THEORY THAT THE KILLER HAD WALKED OUT OF THE REAR GATE AT BUNDY AND ENTERED THE BRONCO? WITHOUT TELLING US WHAT THEY SAID, DID THEY SHARE A THEORY TO THAT EFFECT WITH YOU?

# 106 MR. GOLDBERG:

IT IS IRRELEVANT, YOUR HONOR.

# 107 THE COURT:

OVERRULED. YOU CAN ANSWER THE QUESTION.

# 108 DENNIS FUNG:

COULD YOU REPEAT WHAT THE THEORY --

# 109 Q:

BY MR. SCHECK: SURE. WITHOUT TELLING US WHAT WAS SAID, DID EITHER DETECTIVE LANGE OR DETECTIVE VANNATTER SHARE WITH YOU A THEORY THAT THEY HAD THAT THE KILLER HAD WALKED OUT OF THE -- WALKED OUT OF BUNDY THROUGH THE REAR GATE AND ENTERED THE BRONCO IN THE ALLEY?

# 110 A:

I DON'T KNOW IF THERE WAS A DIRECT CONVERSATION, BUT THAT IS WHAT I INFERRED.

# 111 Q:

SO IN OTHER WORDS, THERE WAS SOME DISCUSSION OF -- OF WHAT WE CALLED BEFORE CRIME SCENE RECONSTRUCTION THAT GUIDED YOU IN TERMS OF YOUR SEARCH?

# 112 MR. GOLDBERG:

THAT IS VAGUE.

# 113 THE COURT:

OVERRULED.

# 114 DENNIS FUNG:

IT GAVE US AN INDICATION OF WHERE TO POSSIBLY LOOK FOR ADDITIONAL EVIDENCE.

# 115 Q:

BY MR. SCHECK: NOW, WITHOUT TELLING US WHAT WAS SAID, DID EITHER DETECTIVE LANGE OR DETECTIVE VANNATTER SHARE WITH YOU MR. SIMPSON'S JUNE 13TH EXPLANATION ABOUT BLEEDING IN THE BRONCO ON THE EVENING OF JUNE 12TH?

# 116 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 117 MR. GOLDBERG:

I OBJECT. IT ASSUMES FACTS NOT IN EVIDENCE, YOUR HONOR.

# 118 THE COURT:

SUSTAINED.

# 119 Q:

BY MR. SCHECK: WELL, DID DETECTIVE VANNATTER OR LANGE SHARE WITH YOU ANYTHING TO GUIDE YOUR SEARCH THAT DERIVED FROM THEIR CONVERSATIONS WITH MR. SIMPSON ON JUNE 13TH?

# 120 MR. GOLDBERG:

CALLS FOR HEARSAY AND SPECULATION.

# 121 THE COURT:

SUSTAINED. ASSUMES FACTS NOT IN EVIDENCE.

# 122 Q:

BY MR. SCHECK: NOW, YOU -- WHEN YOU CONDUCTED THE SEARCH OF THE BRONCO AT THE PRINT SHED, YOU WERE THERE FOR THREE HOURS?

# 123 A:

APPROXIMATELY.

# 124 Q:

AND THERE WAS NO PRESS THERE?

# 125 A:

WELL, THERE WERE -- THERE WAS CAMERA SHOTS OF IT, BUT THEY WEREN'T IN THE IMMEDIATE VICINITY ON THE 14TH.

# 126 Q:

YOU ALLOWED PRESS PHOTOGRAPHERS INTO THE PRINT SHED WHEN YOU WERE CONDUCTING THE SEARCH?

# 127 A:

I DIDN'T SEE THEM, BUT THEY MUST HAVE HAD A LENS THAT WAS VERY -- VERY HIGH-POWERED TELEPHOTO LENS.

# 128 Q:

THEY WERE -- YOU HAVE SEEN PRESS CLIPPINGS OR FOOTAGE OF YOUR WORK IN THE BRONCO SINCE -- ON JUNE 14TH?

# 129 A:

CERTAIN PORTIONS WERE CAPTURED BY THE NEWS MEDIA, YEAH.

# 130 Q:

WELL, AS FAR AS YOU KNEW AT THE TIME, HOWEVER, WHEN YOU WERE CONDUCTING THE SEARCH ON JUNE 14TH, YOU DIDN'T SEE ANY PRESS PEOPLE INSIDE THE PRINT SHED WHEN YOU WERE DOING YOUR WORK?

# 131 A:

THEY WEREN'T ANYWHERE NEAR THERE.

# 132 Q:

OKAY. AND SO THEY WERE NOT DISTRACTING YOU IN ANY WAY?

# 133 A:

I WAS QUITE SURPRISED WHEN I SAW THAT.

# 134 Q:

AND THERE WERE NO HIGH-RANKING POLICE OFFICIALS LOOKING OVER YOUR SHOULDER WHEN YOU WERE CONDUCTING THIS SEARCH ON JUNE 14TH?

# 135 A:

WHAT DO YOU MEAN BY "HIGH-RANKING"?

# 136 Q:

WELL, WHAT IS A HIGH RANK TO YOU?

# 137 A:

CHIEF.

# 138 Q:

CHIEF. OKAY. WERE THERE ANY -- HOW MANY OTHER -- WERE THERE ANY OTHER POLICE OFFICIALS LOOKING OVER YOUR SHOULDER WHEN YOU WERE DOING THE SEARCH OF THE BRONCO ON JUNE 14TH?

# 139 A:

DETECTIVE WATTS WAS PRESENT.

# 140 Q:

THAT IS IT?

A THERE WAS A PHOTOGRAPHER, CRIMINALIST MAZZOLA AND I BELIEVE A PRINT PERSON WAS PRESENT ALSO.

# 141 Q:

INCIDENTALLY, ON WHAT NEWS STATION DID YOU SEE THIS FOOTAGE OF YOU WORKING SEARCHING THE BRONCO ON JUNE 14TH?

# 142 A:

I DON'T REMEMBER WHAT STATION IT WAS.

# 143 Q:

WAS THAT SOMETHING YOU SAW ON TELEVISION OR SOMETHING THAT THE DISTRICT ATTORNEY SHOWED YOU?

# 144 A:

SOMETHING FROM TELEVISION.

# 145 Q:

AND THIS WAS AROUND THE TIME OF JUNE 14TH?

# 146 A:

THIS WAS THAT NIGHT.

# 147 Q:

THAT NIGHT?

# 148 (NO AUDIBLE RESPONSE.)

# 149 Q:

YOU DON'T REMEMBER WHICH STATION?

# 150 (NO AUDIBLE RESPONSE.)

# 151 Q:

OKAY. NOW, YOU KNEW THE SEARCH OF THIS BRONCO WAS IMPORTANT, DID YOU NOT?

# 152 A:

YES.

# 153 Q:

AND YOU WERE TRYING TO DO AS COMPLETE A JOB AS YOU POSSIBLY COULD?

# 154 A:

I WAS TRYING TO GET THE BIOLOGICAL EVIDENCE DURING THAT CRIME SCENE.

# 155 Q:

AND YOU WERE TRYING TO DO A COMPLETE JOB OF GETTING THE BIOLOGICAL EVIDENCE, IF ANY WERE THERE, IN THE BRONCO?

# 156 A:

I WAS TRYING TO GET A REPRESENTATIVE SAMPLE OF THE BLOOD THAT WAS PRESENT, YES.

# 157 Q:

WELL, WEREN'T YOU LOOKING FOR EVERY RED STAIN YOU COULD FIND ANYWHERE YOU COULD FIND IT?

# 158 A:

I DO NOT TRY TO COLLECT EVERY STAIN PRESENT AT A CRIME SCENE OR IN A VEHICLE. I WILL ATTEMPT TO COLLECT A REPRESENTATIVE SAMPLE OF THE EVIDENCE OR BLOOD IN THIS CASE THAT IS THERE.

# 159 Q:

WASN'T YOUR INTENTION, WHEN YOU WERE DOING THIS SEARCH OF THE BRONCO ON JUNE 14TH, TO COLLECT EVERY RED STAIN YOU COULD FIND IN THAT VEHICLE?

# 160 MR. GOLDBERG:

YOUR HONOR, IT IS ASKED AND ANSWERED. ARGUMENTATIVE.

# 161 THE COURT:

OVERRULED.

# 162 DENNIS FUNG:

I TRIED TO COLLECT A REPRESENTATIVE SAMPLE OF THE RED STAINS THAT WERE IN THAT VEHICLE.

# 163 Q:

BY MR. SCHECK: MR. FUNG, ARE YOU SAYING THAT YOU ARE TRYING TO -- YOU TRIED TO COLLECT A REPRESENTATIVE SAMPLE BECAUSE YOU HAVE SEEN SUBSEQUENT PICTURES OF THE BRONCO AND THERE IS IN SOME PLACES JUST AS MANY RED STAINS THREE MONTHS LATER AS WHEN YOU CONDUCTED YOUR SEARCH?

# 164 MR. GOLDBERG:

ASSUMES FACTS NOT IN EVIDENCE.

# 165 THE COURT:

SUSTAINED.

# 166 Q:

BY MR. SCHECK: YOU KNEW, WHEN YOU WERE CONDUCTING YOUR SEARCH OF THE BRONCO, THAT ANY RED STAINS YOU FOUND THERE WOULD BE SUBJECT TO FUTURE DNA ANALYSIS?

# 167 A:

I BELIEVE SOME OF THEM COULD BE, YES.

# 168 Q:

WELL, WHEN YOU WERE CONDUCTING THE SEARCH, YOU WERE OPERATING ON THAT PREMISE, WERE YOU NOT, THAT ANY RED STAIN YOU FOUND IN THAT VEHICLE WOULD SUBSEQUENTLY OR COULD SUBSEQUENTLY BE SUBJECT TO DNA ANALYSIS?

# 169 A:

IT HAD NOT BEEN THE PRACTICE OF THE LAPD TO SUBMIT EVERY SAMPLE TO DNA PROCESSING, SO THE ANSWER IS NO.

# 170 Q:

YOU MEAN YOU THOUGHT SOME MIGHT BE SENT FOR DNA ANALYSIS AND SOME MIGHT NOT BE?

# 171 A:

THOSE STAINS WHICH HAD AMPLE MATERIAL PRESENT AND WERE SUITABLE FOR DNA TESTING WOULD HAVE BEEN SENT ON, YES.

# 172 Q:

WELL, AND AREN'T -- WERE YOU NOT INSTRUCTED THAT ANY STAIN THAT YOU WERE COLLECTING FOR PURPOSES OF DNA ANALYSIS, THAT IT WAS YOUR INSTRUCTIONS TO GET AS MUCH OF THAT AS YOU COULD?

# 173 A:

STAINS COLLECTED FOR DNA ANALYSIS, YES.

# 174 Q:

WELL, WHEN YOU WERE CONDUCTING THE SEARCH OF THE RED STAINS THAT YOU FOUND IN THE BRONCO, DID YOU DECIDE, WELL, THIS STAIN THAT THEY ARE GOING TO USE FOR DNA, BUT THIS STAIN THEY WON'T?

# 175 A:

WHEN THERE IS A LARGE -- A LARGER STAIN, I WILL TRY TO COLLECT AS MUCH OF IT, AND I WILL TRY TO GET -- FOR SMALLER STAINS I WILL COLLECT THOSE ALSO.

# 176 Q:

SO ISN'T IT FAIR TO SAY, SIR, THAT WHEN YOU WERE CONDUCTING THIS SEARCH ON JUNE 14TH YOU HAD NO IDEA WHICH OF THESE THE LABORATORY WOULD WANT TO USE FOR DNA ANALYSIS AND WHICH THEY WOULDN'T?

# 177 A:

THAT WOULD BE UP TO THE SEROLOGIST TO DECIDE.

# 178 Q:

THAT WASN'T YOUR DECISION TO MAKE, RIGHT?

# 179 A:

UP TO A CERTAIN POINT IT WOULD BE MY DECISION, BECAUSE I WOULD DECIDE WHICH BLOOD STAINS TO COLLECT.

# 180 Q:

WELL, AS YOU WERE CONDUCTING THIS SEARCH, DID YOU TAKE THE POSITION THAT YOU SAW A BLOOD STAIN BUT YOU DIDN'T THINK IT WAS PARTICULARLY RELEVANT, SO YOU WEREN'T GOING TO COLLECT IT?

# 181 A:

IF I HAD -- IF I HAD COLLECTED A BLOOD STAIN NEAR IT THAT WAS REPRESENTATIVE OF THAT AREA, I WOULD HAVE LEFT THE OTHER STAIN.

# 182 Q:

ISN'T ONE OF THE THINGS THAT YOU WERE INSTRUCTED TO DO, WHEN COLLECTING BLOOD STAINS, THAT IS IF YOU FIND MORE THAN ONE DISTINCT STAIN THEY SHOULD BE TREATED AS DIFFERENT STAINS AND COLLECTED SEPARATELY? ISN'T THAT SOMETHING YOU WERE INSTRUCTED TO DO?

# 183 A:

THAT IS UP TO THE DISCRETION OF THE PERSON COLLECTING THE EVIDENCE.

# 184 Q:

SO YOU -- IT IS YOUR TESTIMONY THAT YOU TOOK IT UPON YOURSELF, WHEN YOU WERE CONDUCTING THIS SEARCH OF THE BRONCO ON JUNE 14TH, NOT TO COLLECT AS MUCH AS YOU COULD OF CERTAIN RED STAINS? YOU WERE MAKING THAT DECISION?

# 185 A:

I WOULD COLLECT A REPRESENTATIVE SAMPLE, YES.

# 186 Q:

IN YOUR TEN TIMES REVIEWING YOUR TESTIMONY WITH MR. GOLDBERG, DID THE ISSUE COME UP OF NOT COLLECTING STAINS IN THE BRONCO ON JUNE 14TH?

# 187 MR. GOLDBERG:

WELL, MISSTATES THE TESTIMONY. HE DIDN'T SAY THAT HE COLLECTED ANY.

# 188 THE COURT:

REPHRASE THE QUESTION.

# 189 Q:

BY MR. SCHECK: IN YOUR PREPARATION SESSIONS WITH MR. GOLDBERG, DID THE ISSUE ARISE OF THE COMPLETENESS OF YOUR SWATCHING OF RED STAINS ON JUNE 14TH?

# 190 A:

WE TOUCHED ON IT BRIEFLY, YES.

# 191 Q:

BRIEFLY?

# 192 A:

YES.

# 193 Q:

WHAT IS BRIEF? HOW MANY -- IS IT AN HOUR DISCUSSION?

# 194 A:

LESS.

# 195 Q:

HALF HOUR?

# 196 A:

LESS.

# 197 Q:

IN THE COURSE OF THAT DISCUSSION DID THE TWO OF YOU DECIDE THAT IT WOULD BE A GOOD THING TO USE THIS PHRASE "REPRESENTATIVE SAMPLE" TO EXPLAIN YOUR FAILURE OR APPARENT FAILURE TO COLLECT STAINS ON JUNE 14TH?

KEY QUOTE

# 198 A:

THAT HAS ALWAYS BEEN MY TERM.

# 199 Q:

YOUR TERM?

# 200 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 201 MR. SCHECK:

I AM ABOUT TO SHOW --

# 202 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 203 MR. SCHECK:

YOUR HONOR, I SHOWED MR. GOLDBERG TWO PHOTOGRAPHS.

# 204 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 205 THE COURT:

HAVE WE MARKED THESE ALREADY?

# 206 MR. SCHECK:

I BELIEVE ACTUALLY I WILL ASK THEM TO BE SEPARATELY MARKED AS DEFENSE EXHIBITS, BUT I BELIEVE THAT THEY ARE PICTURES THAT ARE ON THE BOARD OF THE PROSECUTION.

# 207 THE COURT:

ALL RIGHT. PROCEED.

# 208 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 209 MR. SCHECK:

OKAY. WE WOULD LIKE TO LOOK AT THIS ONE FIRST, IF WE COULD.

# 210 Q:

NOW, IS THAT A PHOTOGRAPH OF THE CONSOLE THAT WAS TAKEN AT YOUR DIRECTION ON JUNE 14TH?

# 211 A:

YES, IT IS.

# 212 Q:

ALL RIGHT. AND THERE IS ONE SMEAR THERE THAT IS 30 -- THAT IS LABELED "30." WHICH ONE IS THAT? COULD YOU INDICATE THAT TO US?

# 213 (NO AUDIBLE RESPONSE.)

# 214 Q:

MAYBE I CAN HELP YOU OUT HERE. MAYBE I CAN'T. THERE WE GO. DO YOU SEE WHERE THAT RED -- IS THAT SMEAR THAT I'M CIRCLING THERE 30?

# 215 A:

THAT IS THE AREA OF -- APPARENT AREA.

# 216 Q:

OF 30; IS THAT CORRECT?

# 217 A:

IN THAT GENERAL LOCATION.

# 218 THE COURT:

INDICATING JUST TO THE LEFT OF THE MARKER.

# 219 MR. SCHECK:

OF THE MARKER THAT SAYS "30."

# 220 THE COURT:

THAT'S CORRECT.

# 221 Q:

BY MR. SCHECK: AND IT EXTENDS FROM THE CONSOLE TOP DOWN BELOW IT; IS THAT CORRECT?

# 222 A:

IT IS HARD TO TELL FROM THE PHOTOGRAPH, BUT IT IS IN THAT GENERAL LOCATION.

# 223 Q:

AND THEN 31 WAS A SMEAR THAT YOU FOUND AT THE REAR OF THE CONSOLE IN THE AREA THAT I'M CIRCLING NOW THAT IS JUST BELOW THE EVIDENCE TAG THAT SAYS "31"?

# 224 A:

YES.

# 225 MR. SCHECK:

OKAY.

# 226 THE COURT:

ALL RIGHT. DO YOU WANT TO MARK THIS PHOTOGRAPH SEPARATELY?

# 227 MR. SCHECK:

YES. I WOULD ASK THAT THIS PHOTOGRAPH BE MARKED 1090, I BELIEVE.

# 228 THE COURT:

I THOUGHT 87.

# 229 MR. COCHRAN:

1087.

# 230 THE COURT:

1087.

# 231 (DEFT'S 1087 FOR ID = PHOTOGRAPH)

# 232 Q:

BY MR. SCHECK: NOW, THIS IS A PICTURE OF JUNE 14TH, CORRECT?

# 233 A:

YES, IT IS.

# 234 Q:

AND THIS PICTURE IS TAKEN BEFORE YOU SWATCHED STAINS FROM THE CONSOLE OF THE BRONCO?

# 235 A:

YES.

# 236 Q:

IN OTHER WORDS, AFTER THE PHOTOGRAPH IS TAKEN, YOU ENTERED THE VEHICLE WITH SOME SWATCHES; IS THAT CORRECT?

# 237 A:

YES.

# 238 Q:

AND YOU WENT TO THE SMEARS LABELED 30 AND 31 AND FOLLOWING INSTRUCTIONS YOU TRIED TO GET AS MUCH AS YOU COULD BECAUSE YOU KNEW THAT THERE COULD BE SUBSEQUENT DNA ANALYSIS OF THOSE SMEARS?

# 239 MR. GOLDBERG:

MISSTATES THE TESTIMONY.

# 240 THE COURT:

SUSTAINED.

# 241 DENNIS FUNG:

THAT IS NOT WHAT I --

# 242 THE COURT:

REPHRASE THE QUESTION.

# 243 MR. SCHECK:

ALL RIGHT.

# 244 Q:

DID YOU SWATCH STAIN 30?

# 245 A:

YES, I DID.

# 246 Q:

AND WHEN YOU SWATCHED STAIN 30, DIDN'T YOU THINK THAT THAT WOULD BE A SAMPLE THAT WOULD BE USED FOR SUBSEQUENT DNA ANALYSIS?

# 247 A:

I DID NOT THINK IT WAS A GOOD CANDIDATE FOR DNA ANALYSIS.

# 248 Q:

DID YOU NOT THINK -- WITHDRAWN. MR. FUNG, I THOUGHT YOU TOLD US THAT YOU DIDN'T CONSIDER YOURSELF A DNA PERSON?

# 249 A:

I'M NOT.

# 250 Q:

THAT YOU HAD NOT BEEN THROUGH SEROLOGY?

# 251 A:

THAT'S CORRECT.

# 252 Q:

THAT YOU HAD NO PARTICULAR EXPERTISE -- YOU HAD LIMITED KNOWLEDGE, TO USE YOUR WORDS, OF DNA ANALYSIS?

# 253 A:

YES.

# 254 Q:

THAT YOU HAD HAD A BRIEF COURSE IN WHAT ONE SHOULD DO WHEN COLLECTING BLOOD STAINS FOR PURPOSES OF DNA ANALYSIS?

# 255 A:

A BRIEF LECTURE.

# 256 Q:

A BRIEF LECTURE, BUT PART OF THAT BRIEF LECTURE -- WITHDRAWN. PART OF THE ORAL INSTRUCTIONS THAT YOU HAD GOTTEN ON HOW TO COLLECT STAINS FOR DNA ANALYSIS WAS TO GET AS MUCH AS YOU COULD OF A SAMPLE WHEN YOU THOUGHT IT MIGHT BE FOR FUTURE DNA ANALYSIS, CORRECT?

# 257 A:

BLOOD STAINS COLLECTED FOR DNA ANALYSIS REQUIRE, FROM THE TRAINING I GOT, A LOT OF BLOOD, AND THERE WAS NOT A LOT OF BLOOD, SO I DID NOT THINK THAT IT WAS A GOOD CANDIDATE FOR DNA TESTING.

# 258 Q:

SO IT IS YOUR POSITION THAT BECAUSE IT WASN'T A LOT OF BLOOD YOU DECIDED NOT TO SWATCH AS MUCH OF IT AS YOU COULD?

# 259 A:

I GOT A REPRESENTATIVE SAMPLE FROM IT.

# 260 Q:

WELL, DOESN'T IT FOLLOW THAT IF YOU ARE GOING TO BE CONDUCTING DNA ANALYSIS AND YOU HAVE A SMALL SAMPLE THAT YOU WOULD WANT TO GET ABSOLUTELY ALL OF IT TO GIVE THE BEST POSSIBLE CHANCE TO GET A RESULT?

# 261 A:

COULD YOU REPEAT THE QUESTION?

# 262 Q:

SURE. AS FAR AS YOU KNEW FROM THE ORAL INSTRUCTIONS YOU GOT, ISN'T IT TRUE THAT WHEN SWATCHING A SAMPLE FOR PURPOSES OF SUBSEQUENT DNA ANALYSIS THAT WAS COMPARATIVELY SMALL, YOU WOULD WANT TO MAKE SURE TO GET ABSOLUTELY ALL OF TO IT MAKE SURE THERE WAS SOMETHING AVAILABLE FOR TESTING?

# 263 A:

IF THAT SWATCH WAS FOR DNA TESTING, YES.

# 264 Q:

WELL, MR. FUNG, IS IT YOUR TESTIMONY THAT YOU LOOKED AT -- AT THIS -- THE SMEAR THAT IS NO. 30 AND YOU DECIDED ON YOUR OWN ON JUNE 14TH AT VIERTEL'S THAT THIS SMEAR WAS NOT GOING TO BE USED FOR DNA TESTING, THEREFORE YOU WERE FREE NOT TO FOLLOW YOUR INSTRUCTIONS AND COLLECT IT ALL?

# 265 MR. GOLDBERG:

MISSTATES THE TESTIMONY. IT IS ALSO COMPOUND.

# 266 THE COURT:

OVERRULED.

# 267 MR. GOLDBERG:

AS TO VIERTEL'S, YOUR HONOR.

# 268 THE COURT:

SUSTAINED.

# 269 MR. SCHECK:

RIGHT. I'M SORRY. THIS WAS AT THE PRINT SHED.

# 270 THE COURT:

REPHRASE THE QUESTION.

# 271 Q:

BY MR. SCHECK: IS IT YOUR TESTIMONY THAT YOU TOOK IT UPON YOURSELF, WHEN SWATCHING STAIN 30 ON JUNE 14TH, TO DISREGARD YOUR PREVIOUS INSTRUCTIONS TO GET AS MUCH OF THE SAMPLE AS YOU COULD BECAUSE YOU DECIDED THAT THIS STAIN WOULDN'T BE A CANDIDATE FOR DNA TESTING?

# 272 A:

I DID NOT FEEL THAT STAIN WAS A GOOD CANDIDATE FOR DNA TESTING.

# 273 Q:

AND YOU FELT COMPETENT AND SECURE IN THIS CASE TO MAKE THAT DECISION WITHOUT CONSULTING ANYBODY ON THE MORNING OF JUNE 14TH?

# 274 A:

I DID NOT CONSULT ANYBODY, NO.

# 275 Q:

WELL, I ASKED YOU DID YOU FEEL COMPETENT AND SECURE IN DOING THAT?

# 276 A:

YES.

# 277 Q:

LET'S LOOK AT NO. 31. IS YOUR ANSWER THE SAME WITH RESPECT TO NO. 31?

# 278 A:

WHAT IS THE QUESTION?

# 279 Q:

THE QUESTION IS LOOKING AT NO. 31, WEREN'T YOU OPERATING ON THE ASSUMPTION THAT IT WAS YOUR RESPONSIBILITY TO COLLECT AS MUCH OF THAT STAIN AS YOU POSSIBLY COULD BECAUSE IT COULD BE USED FOR FUTURE DNA ANALYSIS?

# 280 A:

I WAS TRYING TO COLLECT A REPRESENTATIVE SAMPLE OF 31 ALSO.

# 281 Q:

SO IN OTHER WORDS, FOR 31 YOU ALSO DECIDED ON YOUR OWN WASN'T A GOOD CANDIDATE FOR DNA TESTING AND THEREFORE YOU DIDN'T HAVE TO COLLECT IT ALL? IS THAT YOUR TESTIMONY?

# 282 A:

I COLLECTED A REPRESENTATIVE SAMPLE OF 31 ALSO.

# 283 Q:

WELL, YOU DIDN'T ATTEMPT TO COLLECT IT ALL? IS THAT WHAT YOU ARE TELLING US?

# 284 A:

I DID NOT COLLECT IT ALL, NO.

# 285 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 286 Q:

BY MR. SCHECK: NOW, THIS IS A PICTURE OF THE CONSOLE THAT MR. GOLDBERG SHOWED YOU ON DIRECT EXAMINATION THAT WAS IN THAT CHART, RIGHT?

# 287 A:

I DON'T RECALL THE EXACT PICTURE.

# 288 Q:

WELL, DO YOU RECALL THIS AS BEING A PICTURE OF THE CONSOLE -- WITHDRAWN. YOU HAVE SEEN PICTURES OF THE CONSOLE THAT WERE TAKEN ON AUGUST 26TH, HAVE YOU NOT?

# 289 A:

I'M NOT SURE OF THE DATE, BUT I HAVE SEEN THIS PICTURE. I DON'T KNOW IF IT IS THE PICTURE THAT IS ON THE BOARD, THOUGH.

# 290 Q:

AND IT IS YOUR UNDERSTANDING THAT THIS PICTURE OR PICTURES LIKE IT OF THE CONSOLE THAT YOU HAVE BEEN SHOWN WERE TAKEN ON AUGUST 26TH?

# 291 A:

I DON'T KNOW THE DATE.

# 292 Q:

WELL, YOU KNEW THEY WERE TAKEN SOME THREE MONTHS AFTER YOU DID SWATCHING?

# 293 A:

THEY WERE TAKEN SOMETIME AFTER I WAS DONE WITH MY INITIAL SEARCH, YES.

# 294 Q:

AND WERE THERE DISCUSSIONS WITH YOU THAT IT LOOKED AS THOUGH -- WITHDRAWN. THE -- THE -- YOU SEE WHERE IT SAYS "303" IN THIS PICTURE?

# 295 A:

YES.

# 296 Q:

ALL RIGHT. NOW, IF ONE ASSUMES THAT 303 REFERS TO THE SMEAR TO THE LEFT OF IT THAT RUNS FROM THE TOP OF THE CONSOLE DOWN BELOW, JUST TO THE LEFT OF WHAT IS MARKED 306, DOES THAT APPEAR TO BE A STAIN IN EXACTLY THE SAME POSITION AS STAIN NO. 30 THAT YOU IDENTIFIED ON JUNE 14TH?

# 297 A:

IT IS IN THE SAME RELATIVE POSITION, YES.

# 298 Q:

ALL RIGHT. AND AS FAR AS LOOKING AT IT, DOES IT LOOK ANY DIFFERENT TO YOU IN THIS PICTURE THAN WHAT YOU SAW ON JUNE 14TH?

# 299 A:

THE LIGHTING CONDITIONS ARE MUCH BETTER.

# 300 Q:

ALL RIGHT. DOES IT LOOK LIKE THERE IS ANY LESS STAIN THERE?

# 301 A:

THAT WOULDN'T BE FAIR TO MAKE A COMPARISON FROM THE LIGHTING CONDITIONS ON JUNE 14TH AND THE LIGHTING CONDITIONS BACK IN THE LABORATORY.

# 302 THE COURT:

MR. SCHECK, DO YOU WANT TO MARK THIS PHOTO?

# 303 MR. SCHECK:

YES, THIS IS --

# 304 THE COURT:

1088.

# 305 MR. SCHECK:

1088.

# 306 (DEFT'S 1088 FOR ID = PHOTOGRAPH)

# 307 Q:

BY MR. SCHECK: AND THE SPOT THAT IS LABELED "304," THAT RED STAIN AREA, IS THAT IN THE SAME POSITION AS THE ONE THAT WAS MARKED -- THAT YOU MARKED AS 31 ON JUNE 14TH?

# 308 A:

IT IS IN THE SAME RELATIVE AREA.

# 309 Q:

AND DOES IT APPEAR TO HAVE AS MUCH RED STAIN, TAKING INTO ACCOUNT LIGHTING CONDITIONS, BUT THE BEST YOU CAN TELL FROM THIS PICTURE, AS WHAT YOU SAW ON JUNE 14TH BEFORE YOU EVEN BEGAN SWATCHING?

# 310 A:

THE LIGHTING CONDITIONS ARE SO DIFFERENT THAT IT IS JUST A DIFFERENT THING TO -- I CAN'T REALLY COMPARE IT. I KNOW THAT I DID COLLECT BLOOD FROM THAT AREA, THOUGH.

# 311 Q:

UMM, AT SOME POINT, BEFORE YOU CAME TO TESTIFY IN THIS CASE, DID YOU HAVE DISCUSSIONS WITH ANYBODY AT THE SID LABORATORY ABOUT THE FACT THAT STAINS THAT YOU IDENTIFIED ON JUNE 14TH SEEMED -- ON THE CONSOLE, SEEMED TO REAPPEAR IN AUGUST OF 1994?

# 312 MR. GOLDBERG:

YOUR HONOR, IT IS ARGUMENTATIVE AND ASSUMES A FACT NOT IN EVIDENCE.

# 313 THE COURT:

SUSTAINED.

# 314 Q:

BY MR. SCHECK: DID YOU HAVE ANY DISCUSSIONS WITH ANYONE AT SID ABOUT THE FACT THAT STAINS WHICH YOU SAID YOU SWATCHED ON JUNE 14TH WERE STILL PRESENT ON AUGUST 26TH?

# 315 A:

YES.

# 316 Q:

YOU SPOKE TO MICHELE KESTLER ABOUT THAT?

# 317 A:

YES.

# 318 Q:

WHEN DID YOU SPEAK TO HER?

# 319 A:

I DON'T RECALL THE EXACT DATE.

# 320 Q:

WAS IT BETWEEN JUNE AND AUGUST?

# 321 A:

I DON'T RECALL THE EXACT TIME FRAME. IT WAS SHORTLY AFTER SHE HAD DONE A SEARCH.

# 322 Q:

SHE HAD DONE A SEARCH?

# 323 A:

WELL, SHE PARTICIPATED IN ONE, YES.

# 324 Q:

OF THE BRONCO?

# 325 A:

YES.

# 326 Q:

AND DID YOU DISCUSS THIS WITH ANYBODY ELSE IN THE LABORATORY, BESIDES MICHELE KESTLER?

# 327 A:

MR. MATHESON WAS ALSO PRESENT.

# 328 Q:

ALL RIGHT. AND WHERE DID THIS CONVERSATION TAKE PLACE?

# 329 A:

THIS TOOK PLACE IN HER OFFICE, MISS -- MISS KESTLER'S OFFICE, MRS. KESTLER'S OFFICE.

# 330 Q:

WAS IT IN THE MONTH OF AUGUST, DO YOU RECALL?

# 331 A:

I DON'T RECALL THE EXACT MONTH.

# 332 Q:

IN THE MONTH OF SEPTEMBER?

# 333 A:

I DON'T KNOW.

# 334 Q:

WAS IT PRIOR TO -- HOW LONG WAS IT PRIOR TO COMING IN HERE AND TESTIFYING?

# 335 A:

MONTHS.

# 336 Q:

ALL RIGHT. AND IT WAS BEFORE YOU BEGAN YOUR PREPARATION SESSIONS WITH THE DISTRICT ATTORNEY'S OFFICE?

# 337 A:

YES.

# 338 Q:

AND LET'S TAKE A LOOK AT THE BOTTOM OF THIS EXHIBIT. DO YOU SEE ANOTHER RED STAIN THAT IS LABELED "305"?

# 339 (NO AUDIBLE RESPONSE.)

# 340 Q:

DO YOU SEE THAT?

# 341 A:

YES.

# 342 Q:

DID YOU SEE THAT ON JUNE 14TH?

# 343 A:

I DON'T RECALL IF I DID OR NOT. I DON'T -- I DIDN'T MARK IT DOWN AS SOMETHING I WOULD -- WAS GOING TO COLLECT, THOUGH.

# 344 Q:

WELL, WHEN YOU CONDUCTED THIS SEARCH OF THE BRONCO ON JUNE 14TH, DID YOU SEARCH THE FRONT SEAT AREA?

# 345 A:

THE FRONT SEAT AREA?

# 346 Q:

YEAH.

# 347 A:

YES, YES.

# 348 Q:

THE DRIVER'S SEAT?

# 349 A:

YES.

# 350 Q:

THE PASSENGER SEAT?

# 351 A:

YES.

# 352 Q:

BETWEEN THE SEATS?

# 353 A:

WHAT DO YOU MEAN "BETWEEN"?

# 354 Q:

I MEAN BETWEEN THE DRIVER'S AND THE PASSENGER SEAT?

# 355 A:

YOU MEAN THE CONSOLE AREA?

# 356 Q:

YES.

# 357 A:

YES.

# 358 Q:

BOTH SIDES OF IT?

# 359 A:

YES.

# 360 Q:

DID YOU LOOK UNDER THE DRIVER'S SEAT FROM THE FRONT?

# 361 A:

YES, I DID.

# 362 Q:

DID YOU LOOK UNDER THE PASSENGER SEAT FROM THE FRONT?

# 363 A:

YES, I DID.

# 364 Q:

DID YOU LOOK UNDER THE PASSENGER SEAT FROM THE BACK AREA?

# 365 A:

I DON'T RECALL IF I DID OR NOT.

# 366 Q:

DID YOU LOOK UNDER THE DRIVER'S SEAT FROM THE BACK AREA?

# 367 A:

I DON'T RECALL IF I DID OR NOT.

# 368 Q:

DID YOU GET INTO THE BACK AREA, THE BACKSEAT AREA OF THE BRONCO, WHEN YOU WERE CONDUCTING THIS SEARCH?

# 369 A:

AT A LATER PORTION, YES, I DID.

# 370 Q:

AND YOU SAW SOME RED STAINS ON THIS CONSOLE, DID YOU NOT?

# 371 (NO AUDIBLE RESPONSE.)

# 372 Q:

ON JUNE 14TH?

# 373 A:

I DID SEE RED STAINS ON THE CONSOLE, YES.

# 374 Q:

AND WHEN SEEING RED STAINS ON THE CONSOLE, DIDN'T YOU THEN EXAMINE THAT CONSOLE AS CAREFULLY AS YOU COULD, SIMPLY BECAUSE YOU SAW SOME RED STAINS ON IT?

# 375 A:

I EXAMINED THE CONSOLE FOR RED STAINS.

# 376 Q:

EXAMINE IT CAREFULLY?

# 377 A:

I EXAMINED IT FOR RED STAINS.

# 378 Q:

YOU WON'T SAY YOU EXAMINED IT CAREFULLY?

# 379 A:

WHAT DO YOU MEAN BY "CAREFULLY"?

# 380 Q:

WITH CARE?

# 381 A:

YES.

# 382 Q:

AND MR. FUNG, HAS IT BEEN SUGGESTED TO YOU THAT THERE IS A POTENTIAL CONTRADICTION BETWEEN THE FACT THAT YOU COLLECTED STAINS ON JUNE 14TH, BUT THERE ARE MORE STAINS ON AUGUST 26TH THAN THERE WERE ON JUNE 14TH?

# 383 MR. GOLDBERG:

ASSUMES FACT NOT IN EVIDENCE. ARGUMENTATIVE.

# 384 THE COURT:

SUSTAINED.

# 385 Q:

BY MR. SCHECK: WAS THERE ANY DISCUSSIONS WITH YOU ABOUT HOW YOU SHOULD ANSWER QUESTIONS ABOUT THESE RED STAINS AND THEIR APPEARANCE ON JUNE 14TH AND AUGUST 26TH WITH MEMBERS OF THE DISTRICT ATTORNEY'S OFFICE?

# 386 A:

WE TOUCHED ON THE SUBJECT BRIEFLY, BUT NOT VERY LONG.

# 387 Q:

DID YOU HAVE DISCUSSIONS ABOUT MICHELE KESTLER ABOUT HOW YOU SHOULD TESTIFY ON THIS SUBJECT?

# 388 A:

NO.

# 389 Q:

DID YOU HAVE DISCUSSION WAS GREG MATHESON ABOUT HOW YOU SHOULD TESTIFY ON THIS SUBJECT?

# 390 A:

NO.

# 391 Q:

DID ANYBODY EXPRESS THE CONCERN TO YOU THAT IF THE JURY WERE TO BELIEVE YOU FOLLOWED YOUR INSTRUCTIONS ON COLLECTING STAINS FOR DNA ANALYSIS --

# 392 THE COURT:

I DON'T LIKE THE WAY THE QUESTION IS GOING.

# 393 MR. SCHECK:

YOU CAN TELL. I WILL WITHDRAW IT.

# 394 THE COURT:

YES.

# 395 Q:

BY MR. SCHECK: WAS THERE ANY DISCUSSION WITH YOU BY PERSONNEL AT SID THAT IF YOU HAD FOLLOWED THE INSTRUCTIONS FOR COLLECTING STAINS FOR PURPOSES OF DNA ANALYSIS, THE RED STAIN THAT IS 31 ON JUNE 14TH AND 303 ON AUGUST 26TH SHOULDN'T HAVE BEEN THERE ON AUGUST 26TH?

# 396 A:

THEY DID INDICATE THAT THEY WOULD HAVE LIKED ME TO COLLECT MORE OF THE STAIN.

# 397 Q:

THEY? WHO IS "THEY"?

# 398 A:

MISS -- MISS KESTLER AND MR. MATHESON.

# 399 Q:

WELL, DID THEY INDICATE TO YOU THAT IF YOU TOOK THE POSITION THAT YOU HAD FOLLOWED EXPECTED PROCEDURES THAT THE STAIN FOUND ON AUGUST 26TH SHOULDN'T HAVE BEEN THERE?

# 400 A:

THEY DIDN'T SAY THAT, NO.

# 401 Q:

DID THEY EXPRESS ANY CONCERN ABOUT THAT?

# 402 A:

THEY DID SAY I -- THEY DID WANT TO KNOW WHY ALL OF THE STAIN WASN'T GONE BY THE TIME THEY GOT THERE.

KEY QUOTE

# 403 Q:

WHEN YOU WENT BACK TO THE BRONCO ON JUNE 28TH TO GET THE SHOVEL AND THE PLASTIC BAG AND THE TOWEL, DID YOU SEE THE RED STAINS ON THE CONSOLE?

# 404 A:

I DIDN'T LOOK AT THAT --

# 405 Q:

WHEN YOU FINISH YOUR ANALYSIS --

# 406 THE COURT:

MR. SCHECK, MR. SCHECK, YOU NEED TO LET HIM FINISH HIS ANSWER.

# 407 MR. SCHECK:

I THOUGHT HE DID.

# 408 Q:

DID YOU FINISH, SIR?

# 409 A:

NO, I WASN'T FINISHED.

# 410 Q:

I'M SORRY.

# 411 A:

I DID NOT LOOK SPECIFICALLY AT THE CONSOLE ON THAT DATE.

# 412 Q:

WHEN YOU FINISHED YOUR ANALYSIS OF THE BRONCO ON JUNE 14TH, YOU FINISHED COLLECTING THE STAINS, DID YOU GO BACK TO SID?

# 413 A:

YES.

# 414 Q:

DID YOU FILL OUT A REPORT ABOUT WHAT YOU HAD COLLECTED?

# 415 A:

A PROPERTY REPORT, YES.

# 416 Q:

WELL, YOU FILLED OUT THIS VEHICLE SEARCH CHECKLIST REPORT?

# 417 A:

FILLED OUT PORTIONS OF IT, YES.

# 418 Q:

YOU WENT BACK AND YOU DISCUSSED WITH GREG MATHESON WHAT YOU HAD FOUND IN THE BRONCO?

# 419 A:

THAT DAY?

# 420 Q:

THAT DAY.

# 421 A:

I DON'T KNOW IF I DISCUSSED IT WITH HIM -- WHAT I COLLECTED THAT DAY OR NOT.

# 422 Q:

DID YOU DISCUSS IT WITH -- THAT WOULD BE JUNE 14TH, CORRECT?

# 423 A:

YES.

# 424 Q:

IN THE AFTERNOON OF JUNE 14TH DID YOU GO BACK AND HAVE ANY DISCUSSIONS WITH GREG MATHESON ABOUT WHAT YOU HAD FOUND?

# 425 A:

AT THE BRONCO?

# 426 Q:

YEAH.

# 427 A:

I DON'T RECALL IF IT WAS THAT AFTERNOON OR NOT.

# 428 Q:

WOULD IT HAVE BEEN THE 15TH?

# 429 A:

IT MAY HAVE BEEN.

# 430 Q:

SO EITHER ON THE 14TH OR THE 15TH YOU WENT BACK AND YOU HAD A CONVERSATION WITH MR. MATHESON ABOUT WHAT YOU HAD FOUND?

# 431 A:

YES.

# 432 Q:

DID YOU HAVE A CONVERSATION WITH MICHELE KESTLER ABOUT WHAT YOU HAD FOUND?

# 433 A:

NO.

# 434 Q:

WHEN YOU WENT BACK AND HAD YOUR CONVERSATION WITH MR. MATHESON, DID YOU TELL HIM THAT YOU HAD FOUND RED STAINS IN THE BRONCO?

# 435 A:

YES.

# 436 Q:

AND DID YOU TELL HIM THAT YOU HAD SWATCHED SOME OF THE RED STAINS FROM THE CONSOLE BUT YOU DIDN'T GET IT ALL?

# 437 A:

I DIDN'T STATE THAT, NO.

# 438 Q:

DID YOU TELL HIM THAT YOU LEFT RED STAINS ON THE CONSOLE?

# 439 A:

NO.

# 440 Q:

IS IT YOUR TESTIMONY THAT YOU REALLY LEFT THOSE RED STAINS IN THE CONSOLE, THE ONES THAT ARE IN THE POSITION OF 31 AND 30 ON JUNE 14TH, 303 AND 304 ON AUGUST 26TH? YOU JUST KNOWINGLY LEFT THEM THERE?

# 441 A:

I COLLECTED REPRESENTATIVE SAMPLES FROM THEM.

# 442 Q:

AND YOU DID NOT TELL ANYBODY, WHEN YOU WENT BACK TO THE CRIME LAB, THAT YOU JUST COLLECTED REPRESENTATIVE SAMPLES AND LEFT MOST OF THOSE STAINS STILL ON THE CONSOLE?

# 443 A:

THAT'S CORRECT.

# 444 Q:

AND TO YOUR KNOWLEDGE YOU NEVER SAW THE STAIN IN THE POSITION OF -- THAT IS MARKED IN THIS PHOTOGRAPH, 305?

# 445 A:

I DIDN'T MAKE A NOTE OF IT.

# 446 Q:

DID YOU SWATCH ANYTHING FROM THAT?

# 447 A:

FROM 305?

# 448 Q:

YEAH.

# 449 A:

NO, NOT THAT AREA.

# 450 Q:

DID YOU SEE IT AND DECIDE NOT TO SWATCH SOMETHING? IS THAT YOUR TESTIMONY?

# 451 A:

I'M SAYING THAT IS WHAT MAY HAVE HAPPENED.

# 452 Q:

AND YOU ARE SAYING THAT IS WHAT MAY HAVE HAPPENED BECAUSE IF 305 WEREN'T THERE ON JUNE 14TH, BUT IT WERE THERE ON AUGUST 26TH, THAT WOULDN'T BE VERY GOOD, WOULD IT?

# 453 MR. GOLDBERG:

ARGUMENTATIVE, YOUR HONOR.

# 454 THE COURT:

SUSTAINED.

# 455 Q:

BY MR. SCHECK: WELL, DID ANYBODY EXPRESS CONCERN TO YOU ABOUT THE POSSIBILITY THAT IF 305 WEREN'T THERE ON JUNE 14TH BUT IT WAS THERE ON AUGUST 26TH THAT THAT WOULD RAISE SERIOUS CONCERNS AT SID?

# 456 A:

NO ONE SAID THAT TO ME, NO.

# 457 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 458 Q:

BY MR. SCHECK: NOW, MR. FUNG, ON JUNE 28TH WERE YOU INVOLVED IN THE EXECUTION OF A SEARCH WARRANT AT MR. SIMPSON'S RESIDENCE AT ROCKINGHAM?

# 459 A:

YES.

# 460 Q:

AND -- JUST GIVE ME A MOMENT, YOUR HONOR.

# 461 (BRIEF PAUSE.)

# 462 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 463 THE COURT:

STILL LOOKING?

# 464 MR. SCHECK:

STILL LOOKING.

# 465 THE COURT:

I WAS JUST GOING TO GIVE THE JURY A CHANCE TO STRETCH IF THEY LIKE.

# 466 MR. SCHECK:

THAT'S FINE.

# 467 THE COURT:

GO AHEAD IF YOU LIKE. THE AUDIENCE CAN DO SO ALSO.

# 468 (BRIEF PAUSE.)

# 469 THE COURT:

MR. SCHECK, I JUST EXCUSED ONE OF THE JURORS FOR A COMFORT BREAK, SO GO AHEAD AND SEARCH ALL YOU LIKE.

# 470 MR. SCHECK:

THANK YOU.

# 471 (BRIEF PAUSE.)

# 472 THE COURT:

ALL RIGHT. WHILE WE ARE WAITING -- MR. SCHECK, ARE YOU STILL LOOKING?

# 473 MR. SCHECK:

UNFORTUNATELY.

# 474 THE COURT:

ALL RIGHT. LET ME TALK WITH MR. DARDEN, MISS CLARK, MR. SHAPIRO AND MR. COCHRAN.

# 475 (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

# 476 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 477 THE COURT:

ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. MR. SCHECK, ARE YOU READY TO PRESUME?

# 478 MR. SCHECK:

YES. THANK YOU VERY MUCH, YOUR HONOR. MY APOLOGIES.

# 479 THE COURT:

I'M SURE THE JURY UNDERSTANDS. ALL RIGHT. LET'S PROCEED.

# 480 Q:

BY MR. SCHECK: NOW, ON JUNE 28TH, YOU WERE PART OF A SEARCH TEAM TO GO BACK AND EXECUTE A SEARCH WARRANT AT MR. SIMPSON'S PROPERTY AT ROCKINGHAM?

# 481 MR. GOLDBERG:

BEYOND THE SCOPE.

# 482 MR. SCHECK:

FOUNDATIONAL, YOUR HONOR.

# 483 THE COURT:

I WILL ALLOW A FEW QUESTIONS BUT LET ME SEE WHERE WE ARE GOING.

# 484 Q:

BY MR. SCHECK: WERE YOU NOT?

# 485 A:

YES.

# 486 Q:

AND YOU ATTENDED A BRIEFING THAT MORNING BEFORE YOU WENT AND EXECUTED THE WARRANT?

# 487 A:

YES.

# 488 Q:

AND YOU WERE INSTRUCTED TO LOOK FOR A PARTICULAR KNIFE, WERE YOU NOT?

# 489 MR. GOLDBERG:

YOUR HONOR, I OBJECT. IT GOES BEYOND THE SCOPE OF DIRECT.

# 490 THE COURT:

ALL RIGHT. LET ME SEE COUNSEL WITH THE COURT REPORTER, PLEASE.

Temperature

devastating

Key Quotes (5)

Barry Scheck

SO TO SUM IT ALL UP WITH ONE LAST QUESTION, YOUR TESTIMONY IS YOUR FORMS ARE WRONG?

Devastating summary of the BAD detectives contradiction — Fung's own checklist showed detectives came on June 28th, not June 14th as he testified

Dennis Fung

THAT PORTION IS INCORRECT, YES.

Fung concedes his official documentation is wrong, undermining the reliability of all his crime scene records

Dennis Fung

THEY DID WANT TO KNOW WHY ALL OF THE STAIN WASN'T GONE BY THE TIME THEY GOT THERE.

Reveals that SID lab supervisors Kestler and Matheson raised concerns about stains remaining on the Bronco console months after Fung claimed to have swatched them

Barry Scheck

IN THE COURSE OF THAT DISCUSSION DID THE TWO OF YOU DECIDE THAT IT WOULD BE A GOOD THING TO USE THIS PHRASE 'REPRESENTATIVE SAMPLE' TO EXPLAIN YOUR FAILURE OR APPARENT FAILURE TO COLLECT STAINS ON JUNE 14TH?

Scheck implies the 'representative sample' defense was coached by prosecutors — Fung denies it but the damage is done

Dennis Fung

IN SPITE OF WHAT MY FORMS SHOW.

Fung explicitly acknowledges his testimony contradicts his own contemporaneous documentation

Evidence (5)

Defense 1085

Vehicle search checklist page for June 28th Bronco search at Viertel's

marked and displayed on ELMO; shows BAD Detectives listed under 'how opened'

Defense 1086

Vehicle search checklist page for June 14th Bronco search at print shed

compared to 1085; 'how opened' box left blank despite Fung's testimony that BAD detectives helped that day

Defense 1087

Photograph of Bronco console taken June 14th showing blood stains labeled 30 and 31

displayed to identify stain positions before swatching

Defense 1088

Photograph of Bronco console taken August 26th showing stains labeled 303, 304, and 305

compared to June 14th photograph to show stains apparently persisting after Fung claimed to have collected them

Informal

Blood stain 305 — present in August photo but never swatched or noted by Fung on June 14th

discussed as potentially unexplained new stain

Notable Exchanges (4)

Barry Scheck•Dennis Fung

Scheck walks Fung through comparing his June 14th and June 28th checklists, establishing that the 'how opened — BAD Detectives' notation appears on the June 28th form, not the June 14th form, directly contradicting Fung's testimony that they helped on the 14th. Fung ultimately states his forms are incorrect.

methodical and damaging

Barry Scheck•Dennis Fung

Scheck presses Fung on why blood stains he claimed to have swatched in June still appeared in August photographs, forcing Fung to reveal that SID supervisors Kestler and Matheson questioned him about why the stains weren't fully gone — an internal LAPD concern Fung had not volunteered.

revealing

Barry Scheck•Dennis Fung

Scheck challenges whether the phrase 'representative sample' was coached during Fung's ten preparation sessions with Goldberg, implying it was invented to explain incomplete collection. Fung insists it is his own term.

strategic/accusatory

Barry Scheck•Dennis Fung

Scheck establishes that Fung — who admitted having only a 'brief lecture' in DNA collection protocols and described himself as not a DNA person — unilaterally decided certain stains were not good candidates for DNA testing and therefore did not need to be fully collected.

devastating

Light Moments (2)

Lance A. Ito

Judge Ito excuses a juror for a 'comfort break' while Scheck searches for a document, then tells the audience they can stretch too, leading to a relaxed pause mid-examination.

Lance A. Ito

Ito asks 'MR. SCHECK, ARE YOU READY TO PRESUME?' — apparently meaning 'resume' — a small verbal slip during the wait.

Credibility Attacks (4)

⚔ Dennis Fung

prior inconsistent document

Scheck uses Fung's own vehicle search checklists to show his testimony about the BAD detectives helping on June 14th is contradicted by his form, which records their presence on June 28th. Fung concedes the forms are wrong but maintains his independent recollection.

⚔ Dennis Fung

incomplete evidence collection

Scheck establishes that blood stains Fung claims to have swatched on June 14th were still visibly present in August 1994 photographs, and that SID supervisors internally questioned why the stains weren't fully collected — suggesting either incompetence or something worse.

⚔ Dennis Fung

bias/coaching

Scheck implies Fung's 'representative sample' explanation was developed during preparation sessions with prosecutor Goldberg, and questions whether Fung's testimony is shaped by what the prosecution needs rather than his actual recollection.

⚔ Dennis Fung

lack of expertise overstepped

Scheck uses Fung's own admissions of limited DNA training to show he had no basis to unilaterally decide which stains were or weren't DNA candidates, yet made that call alone without consulting anyone.

Witness Demeanor

Fung gives frequent 'I don't recall' and 'I don't remember' responses when pressed on dates and specifics

Fung repeatedly falls back on the phrase 'representative sample' under sustained pressure

Fung at one point says he wasn't finished answering when Scheck moved on, suggesting he was flustered

Objections

13 objections (9 sustained, 3 overruled)

Proceeding 5643 • 490 utterances • Prosecution witness

Criminal Trial

Department 103