Redirect examination of Dennis Fung (part 5)

📄 Redirect examination of Dennis Fung (part 5) — Thursday, April 13, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\13\REDIRECT-EXAMINATION-OF-DENNIS.DOC

TRIAL

▲ Day 56 of 167

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Thursday, April 13, 1995 • Utterances: 201

Barry Scheck methodically dismantles Dennis Fung's account of how OJ Simpson's blood sample—received from Detective Vannatter in a gray manila envelope—was handled, transferred, and stored. Fung repeatedly admits he cannot recall whether he ever told his partner Andrea Mazzola what was inside the black plastic bag he handed her, and that the blood sample sat unrefrigerated overnight on an evidence processing table. Scheck then directly accuses Fung of fabricating the entire plastic bag story, which Fung denies, before introducing the eight-page crime scene investigation checklist (Defense 1107) containing Mazzola's handwriting.

# 1 MR. SCHECK:

You went, as depicted on the videotape, back into Rockingham for one last look?

# 2 MR. FUNG:

Yes.

# 3 MR. SCHECK:

You picked up those yellow evidence cards?

# 4 MR. FUNG:

On the way back in, yes.

# 5 MR. SCHECK:

And then you got back inside to Rockingham?

# 6 MR. FUNG:

Yes.

# 7 MR. SCHECK:

And was it at that point that you asked some detective for a black plastic bag?

# 8 MR. FUNG:

No.

# 9 MR. SCHECK:

You got inside to Rockingham and that is when you saw Detective Vannatter in the foyer?

# 10 MR. FUNG:

At some point after I went in, yes.

# 11 MR. SCHECK:

And was Detective Vannatter carrying a black duffel bag?

# 12 MR. FUNG:

I don't recall if he was or not.

# 13 MR. SCHECK:

And was Detective Vannatter carrying a clipboard?

# 14 MR. FUNG:

I don't recall if he was or not.

# 15 MR. SCHECK:

All you remember is that he had this gray manila envelope?

# 16 MR. FUNG:

I do remember him giving it to me.

# 17 MR. SCHECK:

And do you remember who was there when this gray manila envelope was handed off?

# 18 MR. FUNG:

I don't remember everybody who was there.

# 19 MR. SCHECK:

Well, since we last broke you now have had an opportunity to talk with the Prosecutors about the videotapes?

# 20 MR. FUNG:

Yes.

# 21 MR. SCHECK:

And have they discussed anything with you about who else was there?

# 22 MR. FUNG:

No.

# 23 MR. SCHECK:

Have they discussed with you anything about what Miss Mazzola may be testifying to?

# 24 MR. FUNG:

No.

# 25 MR. SCHECK:

Was Miss Mazzola there?

# 26 MR. FUNG:

I don't recall her being there when I accepted the envelope from Miss--Mr.--or Detective Vannatter.

# 27 MR. SCHECK:

So it is you and Detective Vannatter?

# 28 MR. FUNG:

I know that.

# 29 MR. SCHECK:

Who else as you sit here today you independently remember?

# 30 MR. GOLDBERG:

That misstates the testimony.

# 31 THE COURT:

Overruled.

# 32 MR. FUNG:

I don't specifically remember anybody else, but I do know there were other people there.

# 33 MR. SCHECK:

All right. And he gave you the gray manila envelope and then you looked in it?

# 34 THE COURT:

Counsel, I think we have broached this subject yesterday, who was there.

# 35 MR. SCHECK:

Right.

# 36 THE COURT:

When it was transferred.

# 37 MR. SCHECK:

Just foundational.

# 38 THE COURT:

This is like the third time we are going through this.

KEY QUOTE

# 39 MR. SCHECK:

I understand.

# 40 MR. SCHECK:

After you looked in the envelope, was it then that you asked somebody to get a plastic bag?

# 41 MR. FUNG:

I asked somebody to--I asked if somebody could find a bag of some sort so that I could place the envelope inside.

# 42 MR. SCHECK:

Who did you ask?

# 43 MR. FUNG:

Nobody in particular. I just asked in general for somebody to find me something to put the--the envelope in.

# 44 MR. SCHECK:

Do you remember who gave it to you?

# 45 MR. FUNG:

It was one of the detectives.

# 46 MR. SCHECK:

Where did they give it to you?

# 47 MR. FUNG:

It was in the kitchen.

# 48 MR. SCHECK:

Where was Miss Mazzola?

# 49 MR. FUNG:

I don't know.

# 50 MR. SCHECK:

Was she around?

# 51 MR. FUNG:

I don't know.

# 52 MR. SCHECK:

And then you were given this plastic bag and you put the gray manila envelope in the plastic bag?

# 53 MR. FUNG:

That's--to the best of my recollection, yes.

# 54 MR. SCHECK:

And when you did that, where was Miss Mazzola?

# 55 MR. FUNG:

I don't know.

# 56 MR. SCHECK:

And you walked out of the kitchen then?

# 57 MR. FUNG:

I don't know what I did right after I put the envelope in the bag.

# 58 MR. SCHECK:

After you put the envelope in the bag, did there come a point soon after where you saw Miss Mazzola?

# 59 MR. FUNG:

Eventually I did see her, but I don't know when.

# 60 MR. SCHECK:

How many minutes?

# 61 MR. FUNG:

I don't know.

# 62 MR. SCHECK:

More than two or three?

# 63 MR. FUNG:

I don't recall how many minutes from the time I put the envelope in the bag to when I saw her next.

# 64 MR. SCHECK:

Did you see her next inside the Rockingham residence?

# 65 MR. FUNG:

I can only tell from the video. I don't recall exactly when I saw her next.

# 66 MR. SCHECK:

Well, from the video we know you walked out the Rockingham residence with Miss Mazzola?

# 67 MR. FUNG:

Yes.

# 68 MR. SCHECK:

And you at some point handed her this black plastic bag?

# 69 MR. FUNG:

At some point from the video, yes.

# 70 MR. SCHECK:

And when you handed her that black plastic bag, did you say to her, "Miss Mazzola, here is a black plastic bag and inside it is a gray manila envelope with Mr. Simpson's blood sample"? Did you tell her that.

# 71 MR. GOLDBERG:

No foundation; personal knowledge.

# 72 THE COURT:

Overruled.

# 73 MR. FUNG:

I didn't tell her that or I don't remember telling her that or I don't remember saying anything like that.

# 74 MR. SCHECK:

Which?

# 75 MR. FUNG:

I just don't remember.

# 76 MR. SCHECK:

Well, did you tell her, in substance, "Here's"--withdrawn. At that time didn't you have some concerns about carrying a manila envelope with a blood vial in it?

# 77 MR. FUNG:

Yes.

# 78 MR. SCHECK:

You certainly wouldn't want to have that blood vial broken?

# 79 MR. FUNG:

No, I wouldn't.

# 80 MR. SCHECK:

That is a piece of evidence that you want to carry with a great deal of care?

# 81 MR. FUNG:

Yes.

# 82 MR. SCHECK:

And if you are giving it to Miss Mazzola, you are going to want her to carry it with a great deal of care?

# 83 MR. FUNG:

Yes.

# 84 MR. SCHECK:

And you are telling us, when you handed her the blood vial and the manila envelope that is inside the plastic bag, you didn't say to her, "Miss Mazzola, here's the blood vial, blood sample from Mr. Simpson that I was just given by Detective Vannatter. Carry it carefully"?

# 85 MR. FUNG:

I don't remember saying that.

# 86 MR. SCHECK:

You just, to the best of your recollection, handed her a plastic bag with Mr. Simpson's blood sample in it and never told her what was in it?

# 87 MR. GOLDBERG:

Misstates the testimony that he recalled.

# 88 THE COURT:

Sustained.

# 89 MR. SCHECK:

Did you tell her what was in that black plastic bag when you handed it to her?

# 90 MR. GOLDBERG:

Your Honor, it is argumentative.

# 91 THE COURT:

Overruled. Not as phrased.

# 92 MR. FUNG:

I don't recall if I did or not. I don't remember.

# 93 THE COURT:

All right. Let's move on.

# 94 MR. SCHECK:

And then the two of you walked out of Rockingham?

# 95 MR. FUNG:

Yes.

# 96 MR. SCHECK:

And you went into the crime scene truck?

# 97 MR. FUNG:

Yes.

# 98 MR. SCHECK:

And when you went into the crime scene--between the time that you left and the time you got to the crime scene truck, did you tell Miss Mazzola what was in that black plastic bag?

# 99 MR. FUNG:

I don't recall talking to her at all.

# 100 MR. SCHECK:

When you got inside the crime scene truck, umm, where did you go and where did she go?

# 101 MR. FUNG:

She eventually went to the passenger seat and I went into the driver's seat.

# 102 MR. SCHECK:

What did she do with the plastic bag that contained Mr. Simpson's blood sample?

# 103 MR. FUNG:

I don't recall if she put it in--if I unlocked the back door for her and she put it in, or if we put it--or if she put it in the passenger compartment.

# 104 MR. SCHECK:

Well, when she was putting it somewhere in the truck, did you tell her, "Miss Mazzola, what is in that plastic bag is Mr. Simpson's blood sample. Put it in a certain place, be careful with it"?

# 105 MR. FUNG:

I don't recall saying that to her.

# 106 MR. SCHECK:

Do you recall--withdrawn. Did you ever, when you got back into the crime scene truck, tell Miss Mazzola what was in the plastic bag?

# 107 (No audible response.)

# 108 MR. GOLDBERG:

Your Honor, it has been asked and answered.

# 109 THE COURT:

Sustained.

# 110 MR. FUNG:

I don't recall--

# 111 THE COURT:

Wait.

# 112 MR. GOLDBERG:

Wait.

# 113 MR. SCHECK:

You don't have to answer that question.

# 114 THE COURT:

Proceed.

# 115 MR. SCHECK:

At some point after you got back in the crime scene truck the two of you drove back to SID?

# 116 MR. FUNG:

Yes.

# 117 MR. SCHECK:

And at that time you took evidence out of the crime scene truck and you brought it into the evidence processing room?

# 118 MR. FUNG:

Yes.

# 119 MR. SCHECK:

And at that time did you and Miss Mazzola conduct an inventory of all the items that you collected?

# 120 MR. FUNG:

I know I did.

# 121 MR. SCHECK:

Was she there assisting?

# 122 MR. FUNG:

She may have been.

# 123 MR. SCHECK:

And during that inventory did you tell her "Inside that plastic baggies Mr. Simpson's blood vial in a manila envelope"?

# 124 MR. FUNG:

I don't recall talking to her about the--this item of evidence.

# 125 MR. SCHECK:

All right. When you got back to the evidence processing room, you and Miss Mazzola went through a process you've told us of taking blood swatches out of coin envelopes and putting them into test-tubes?

# 126 MR. FUNG:

Yes.

# 127 MR. SCHECK:

At some point before you began that process did you indicate to Miss Mazzola that Mr. Simpson's blood sample was in a gray manila envelope and inside that plastic bag?

# 128 MR. FUNG:

I don't recall talking to her about that sample on that day.

# 129 MR. SCHECK:

At some point, when you got back to the evidence possessing room, did either of you take the gray manila envelope out of the black plastic bag?

# 130 MR. FUNG:

No.

# 131 MR. SCHECK:

It was kept in the black plastic bag?

# 132 MR. FUNG:

During--during that night, yes.

# 133 MR. SCHECK:

Where did you put it?

# 134 MR. FUNG:

I put all the evidence on a--one of the tables in the evidence processing room.

KEY QUOTE

# 135 MR. SCHECK:

You put Mr. Simpson's blood sample, which was in a gray manila envelope, inside the plastic bag on top of the table in the evidence processing room?

# 136 MR. FUNG:

That's where I put all the evidence that day.

# 137 MR. SCHECK:

And you left it there?

# 138 MR. FUNG:

Yes.

# 139 MR. SCHECK:

And you didn't put it in any refrigerator?

# 140 MR. FUNG:

No, I didn't.

# 141 MR. SCHECK:

Did you tell anybody in the laboratory that you had come back with Mr. Simpson's blood vial in that gray manila envelope in that black plastic bag?

# 142 MR. FUNG:

No.

# 143 MR. SCHECK:

Did you go to--was Greg Matheson in the laboratory when you returned?

# 144 MR. FUNG:

I don't recall seeing him.

# 145 MR. SCHECK:

Is there a stock room refrigerator outside the door of the evidence processing room?

# 146 MR. FUNG:

Yes, there is.

# 147 MR. SCHECK:

You didn't even take Mr. Simpson's blood sample and put it in the stock room refrigerator?

# 148 MR. FUNG:

I wouldn't do that, no.

# 149 MR. SCHECK:

And it is your testimony that you never, to the best of your recollection, told Miss Mazzola what was inside that black plastic bag?

# 150 MR. FUNG:

Not on that day, no, to the best of my recollection. I don't recall talking to her about that item of evidence on that day.

KEY QUOTE

# 151 MR. SCHECK:

When you came back to the evidence processing room on the morning of June 14th did you see the black plastic bag containing Mr. Simpson's blood sample in it?

# 152 MR. FUNG:

I don't specifically remember it, but the--the items of evidence were all accounted for.

# 153 MR. SCHECK:

So when you evidence--entered the evidence processing room, that--the gray manila envelope was still inside the black plastic bag?

# 154 MR. FUNG:

I did not observe or detect any of my evidence from the night before having been disturbed.

# 155 MR. SCHECK:

All right. Well, when you entered the evidence processing room, was there anybody with you?

# 156 MR. FUNG:

I don't recall.

# 157 MR. SCHECK:

Was Miss Mazzola with you?

# 158 MR. FUNG:

I don't recall.

# 159 MR. SCHECK:

And I take it that you alone, with nobody around, removed the gray manila envelope from the black plastic bag?

# 160 MR. FUNG:

I don't recall if anybody was with me or not. I don't remember.

# 161 MR. SCHECK:

Mr. Fung, none of this ever happened in terms of putting that gray manila envelope in that plastic bag; isn't that right?

KEY QUOTE

# 162 MR. FUNG:

That's incorrect.

# 163 MR. SCHECK:

That is something that you made up when the Judge asked you the question this morning "What's in that black plastic bag?"?

KEY QUOTE

# 164 MR. FUNG:

No.

# 165 MR. SCHECK:

That is why you have now recounted that you never told Miss Mazzola once on the afternoon what was in that black plastic bag?

# 166 MR. FUNG:

That is not what I said.

# 167 MR. SCHECK:

That is why you are now telling us, when you went back into evidence processing room the next morning, no one else was there to see you remove this blood sample from the black plastic bag?

# 168 MR. GOLDBERG:

Misstates the testimony.

# 169 THE COURT:

Sustained. Rephrase the question.

# 170 MR. SCHECK:

You don't remember anybody being there when you removed the blood sample from the black plastic bag?

# 171 MR. GOLDBERG:

Misstates the testimony, your Honor.

# 172 THE COURT:

Overruled.

# 173 MR. FUNG:

I don't recall if anybody was there with me or not.

# 174 MR. SCHECK:

Your Honor, I would like to now mark--

# 175 MR. GOLDBERG:

May I just have one moment?

# 176 (Discussion held off the record between Deputy District Attorney and Defense counsel.)

# 177 MR. SCHECK:

When I say "Mark," by whatever means the Court would like, umm, I would like to show the original copies of the crime scene investigation checklist.

# 178 THE COURT:

Original copies?

# 179 MR. SCHECK:

Yes. The originals.

# 180 MR. GOLDBERG:

He means the originals.

# 181 MR. SCHECK:

Thank you. The documents that have been brought to us that purport to be originals of the crime scene investigation checklist for Rockingham.

# 182 THE COURT:

The four pages? The four-page sheet?

# 183 MR. SCHECK:

It is actually one, two, three, four pages that are numbered, a fifth page designated "Field notes" and on the back of the fifth page there is writing, a sixth page designated "Field notes" that is blank and on the back page of that is a diagram, a seventh page that is the evidence collection checklist, and on the back of that there is another diagram. What did I say? This is the seventh page, which is a second evidence collection checklist. That is eight altogether.

# 184 THE COURT:

That is eight. Eight pages.

# 185 MR. SCHECK:

Eight pages.

# 186 THE CLERK:

1107.

# 187 THE COURT:

All right. Those pages will be 1107.

# 188 MR. GOLDBERG:

Your Honor, I'm sorry, I thought we weren't going to introduce any of the originals so that we could maintain custody of our originals pursuant to a prior agreement.

# 189 THE COURT:

If there is a reason to use the original, I will allow their use; however, there will be substitutions for the record later. Proceed.

# 190 (Deft's 1107 for id = 8-page document)

# 191 MR. SCHECK:

Now, earlier, Mr. Fung, you were shown a copy of this page by the Prosecution and it was introduced into evidence under direct examination?

# 192 MR. FUNG:

Yes.

# 193 MR. SCHECK:

All right. And this piece of paper contains handwriting of Andrea Mazzola?

# 194 MR. FUNG:

Yes.

# 195 MR. SCHECK:

Where she lists various items?

# 196 MR. FUNG:

Yes.

# 197 THE COURT:

When you say "This page," which page are we talking about?

# 198 MR. SCHECK:

It is the page in back of the field notes.

# 199 THE COURT:

First page of field notes.

# 200 MR. SCHECK:

I will give you a number in terms of the actual page. It is the fifth page and it is the back of the fifth page, and I would like to put this on the elmo.

# 201 (Brief pause.)

Temperature

tense

Key Quotes (5)

Barry Scheck

Mr. Fung, none of this ever happened in terms of putting that gray manila envelope in that plastic bag; isn't that right?

The most direct accusation of the session — Scheck flatly alleges Fung fabricated the entire plastic bag chain-of-custody account.

Barry Scheck

That is something that you made up when the Judge asked you the question this morning 'What's in that black plastic bag?'?

Scheck presses the fabrication theory, suggesting Fung invented the story on the spot during morning testimony.

Dennis Fung

Not on that day, no, to the best of my recollection. I don't recall talking to her about that item of evidence on that day.

Fung concedes he never told Mazzola what was in the bag containing Simpson's blood sample — devastating for chain-of-custody integrity.

Dennis Fung

I put all the evidence on a--one of the tables in the evidence processing room.

Establishes that Simpson's blood vial was left unrefrigerated overnight on an open table, undermining evidence preservation protocols.

Lance A. Ito

This is like the third time we are going through this.

Judge Ito's mild rebuke of Scheck's repetitive questioning signals even the court is feeling the cumulative grind of this cross.

Evidence (3)

Defense 1107

Eight-page crime scene investigation checklist for Rockingham, including field notes with Andrea Mazzola's handwriting and evidence collection checklists with diagrams

marked for identification, displayed on ELMO

Informal

Gray manila envelope containing OJ Simpson's blood sample vial, received from Detective Vannatter

extensively discussed re: chain of custody and handling

Informal

Black plastic bag used to transport the gray manila envelope and blood sample

discussed; Scheck challenges whether it ever existed as described

Notable Exchanges (3)

Barry Scheck•Dennis Fung

Scheck builds a sustained argument that Fung never informed Mazzola what was inside the plastic bag at any point — not when handing it to her, not walking to the truck, not during the drive, not during the evidence inventory — before accusing him of fabricating the entire bag story.

devastating

Barry Scheck•Lance A. Ito

Judge Ito interrupts to note this is 'the third time we are going through' who was present at the Vannatter envelope handoff; Scheck backs off briefly before continuing.

mildly admonishing

Hank Goldberg•Lance A. Ito

Goldberg raises a custody objection when Scheck moves to use originals of the crime scene checklist, citing a prior agreement to preserve originals; Ito overrules and allows their use with later substitution.

procedural

Credibility Attacks (2)

⚔ Dennis Fung

prior inconsistent behavior / implausibility attack

Scheck establishes that Fung handed a blood sample to Mazzola without ever telling her what it was, left it unrefrigerated overnight, and told no one at the lab — then directly accuses Fung of having invented the plastic bag story when prompted by the judge that morning.

⚔ Dennis Fung

gaps in recollection

Scheck catalogs every moment where Fung cannot remember who was present, what was said, or where Mazzola was — undermining his reliability as the primary chain-of-custody witness for Simpson's blood sample.

Witness Demeanor

Fung responds to direct accusations of fabrication with flat denials ('That is incorrect.', 'No.') rather than visible distress

Fung's repeated 'I don't recall' responses become a pattern throughout the session

Objections

7 objections (3 sustained, 4 overruled)

Proceeding 5675 • 201 utterances • Defense witness

Criminal Trial

Department 103