Chapter 6:

PEOPLE V. ORENTHAL JAMES SIMPSON

People v. Orenthal James Simpson: The Trial of the Century

At no time in history has someone as well-known and well-liked as O.J. Simpson been accused of such a heinous crime as slitting his ex- wife's throat, almost decapitating her, and the knifing to death of her friend who happened on the scene. For the American public, obsessed as it is with celebrity, the Simpson case is proving to be a riveting spectacle. As this book goes to press in December 1994, the trial itself has yet to start and but every legal proceeding except for jury selection has been broadcast live, covered thoroughly, and analyzed exhaustively.

There is no escaping the Simpson trial. Management consulting firms are predicting that once the trial starts, an epidemic of "Simpsonitis" is going to lower productivity in the American workplace. The case is the staple of television and radio shows, articles, editorials, and commentaries, jokes, and cartoons. Even Doonesbury has assigned several characters to cover the trial and they are staying in a "big media encampment called O.J. City." The case is being used as the basis for law classes at Harvard, Yale, U.C.L.A. and several other law schools (O.J. 101). The trial will be broadcast on ESPN, the all-sports cable network. It is likely that by the time the trial is over, it will have received more news coverage than any event since the Viet Nam War.

As part of this media frenzy, DNA typing, the crucial evidence in the case, is receiving unprecedented attention. To people in the forensic sciences, this attention is greeted with the hope that the Simpson case will be the acid test for DNA in the courts, at least in the court of public opinion. At the same time, there is some concern that the defense is mounting the most concerted and well-funded attack ever on DNA evidence. Will they succeed in confusing the judge or the jury? The dollars versus DNA showdown at the Simpson evidentiary hearing and the trial will be a real test of the criminal justice system.

The pre-trial hearing, called the Kelly-Frye hearing in California, where the judge will decide on the admissibility of the DNA testing was initiated by the defense motion to exclude the DNA evidence. That document was submitted on October 5 and runs 108 pages. The motion is well written and goes back to the beginnings of DNA testing to cite a wide variety of articles, affidavits, and testimony which challenge the validity of DNA. It quotes two Nobel laureates, one of whom will testify for the defense that the PCR test is not suitable for forensic use. This motion was rebutted by two documents from the prosecution, one asking the court to admit the RFLP testing and the other PCR.

It is highly unusual for jury selection to precede the Kelly-Frye hearing, as was done in the Simpson case. Both sides usually want to know the outcome of the hearing prior to selecting a jury because the judge's ruling on admissibility affects the way in which they question prospective jurors. Judge Ito did not really have a choice in this case, however. All of the DNA test results were not yet back from the laboratories, so the full extent and kinds of evidence could not yet been determined. At this stage, an evidentiary hearing would have been able to address only generic and not specific issues.

The Kelly-Frye hearing, originally scheduled for Nov. 1, and then Dec. 12, 1994, has now been postponed until January 5, 1995 at the earliest. Even this date might prove unrealistic because Peter Neufeld, co-counsel of the Simpson DNA defense team, is tied up with a murder trial in New York. Another unrealistic expectation is that the Kelly-Frye hearing will only take a month. Between 20 and 30 witnesses have been identified. If they averaged two days of testimony apiece, a two to three month hearing would ensue. In addition to defense and prosecution witnesses, Judge Ito may call his own experts to testify. If he does, Eric Lander from M.I.T. is bound to be one of them. Ito is being advised on DNA issues by Judge Dino Fulgoni, a Los Angeles Superior Court judge and former prosecutor specializing in DNA issues.

Both sides did get some early insight into how prospective jurors felt about DNA evidence. As part of jury selection, all members of the jury pool were required to complete a 78-page questionnaire probing their views on such subjects as race, religion, sports, politics, science, and, of course, DNA. Of the 294 questions, the eight dealing with DNA are printed at right.

The jury that was chosen for the Simpson case is composed of eight African-Americans, two Hispanics, one American Indian-Caucasian, and one Caucasian. Four are men and eight are women. The jury includes two people with more than a high school education. Based on their questionnaires, the Simpson jury, by and large, does not find DNA evidence to be reliable.

In the Simpson case, it is a victory for the defense to have the jury selection come first. The longer the jury sits, the more chance there is for a mistrial, especially if the jury is sequestered. Every time there is a mistrial, it is a victory for the defense even though the prosecution more often than not convicts the next time around.

Judge Ito was probably thinking about the length of the trial and the potential for "contamination" of the jurors by the media when he decided to qualify twelve alternate jurors instead of the more usual eight. Judge Ito probably realizes that the Kelly-Frye hearing may well last considerably longer than the month for which it is currently scheduled, and that the trial itself may run far longer than anticipated. Because both sides believe that alternate jurors will be used in this case, seating of the alternate jurors took longer than choosing the original panel.

Defense Strategy and Arguments

The defense began their DNA offensive by waging a pitched battle to convince Judge Ito to split the blood evidence samples in the Simpson case. This was a tactical move to reduce the amount of DNA available to be tested by the prosecution. The defense probably doesn't want to do any testing of its own because it would only add a fourth lab to the three which have already processed incriminating evidence against their client. They want to distance themselves from this evidence so much that they did not even observe the testing which was done. The most productive avenue for the defense in this case is to discredit the evidence by criticizing how it was collected and documented on its way to the lab. To embellish this argument, they claim that the "contaminated" samples are unfit for re-testing.

Beginning with the pre-trial evidentiary hearing, the defense will try their utmost to blur the distinction between weight and admissibility so they can talk about issues such as laboratory error rates and contamination. These relate more properly to the weight of the evidence rather than to its admissibility. Ideally, the defense would like to have the scientists who did the testing testify about the results. They will reach far into the past to bring up any statements, cases or tests which support their position.

The attacks the defense will make are based on trying to show that DNA testing is not reliable and that there is no agreement in the scientific community as to how the results should be interpreted. Statistical estimates and population genetics, especially as they relate to RFLP, are still a major defense objection despite the fact that many of the experts who previously expressed concerns about the population genetics issues will no longer testify against the forensic use of DNA. This issue is further neutralized by the recent article in Nature co-authored by Bruce Budowle and Eric Lander.

Laboratory error rate is the most recent area that the defense has emphasized to try to keep DNA out of the courtroom. This is actually an old issue. While there is no particular case law on this point, it is generally considered to go to the weight of the evidence irrespective of the testing method. By error rate in the DNA context, critics are referring to the incidence of false positive test results. The basic defense contention is that until the laboratories can establish their false positive rates by double blinded proficiency testing, they should not be allowed to use the test results as evidence.

Based on proficiency testing that the laboratories underwent years ago, defense experts have calculated that false positive rates could be as high as 30%. This is a specious claim. It assumes that the occurrence of false positives in forensic casework follow the rules of statistics used for normal distributions of frequently occuring events. False positive results in the laboratory are extraordinarily rare events. Out of the more than 25,000 cases which have been completed using forensic DNA, not one false positive result has been demonstrated to date.

The defense will bring up the results of a 1987 test in which both Cellmark and Forensic Science Associates reported out false results. They will claim that these test results point to a lab error rate of 2% (1 in 50 tests). These tests are irrelevant because changes in protocols were made as a result of these tests and since then many thousands of tests have been sucessfully completed. The defense is also claiming that the laboratory error rate should be factored into any DNA profile frequencies so that the gene frequencies reported could never be any lower than the false positive rates. Once again, this is an inappropriate use of statistics, because the occurrence of a genotype and the occurrence of an error are two different events.

Much will be made of the procedural errors made in the Simpson case, particularly the coroner's performance. Those errors, while certainly demonstrating substandard performance, are not material. The time of the victims' death is known with much greater certainty than can be determined by discarded stomach contents. The failure to collect sexual assault evidence is disappointing but, of course, there are no allegations or evidence of sexual assault. Often, there are much more serious breaches of investigative procedures, but few defendants have the resources that are available to O.J. Simpson.

The defense objections to the DNA evidence are summarized in the following excerpt of their motion to exclude DNA evidence.

The Defense DNA Team

Barry Scheck and Peter Neufeld are the two American attorneys best known for their DNA defense work. This pair from New York has been at the middle of the muddle over DNA since the first big showdown in New York v. Castro. They followed that case by forming the DNA Task Force of the National Association of Criminal Defense Lawyers, which they continue to co-chair. Then they handled the DNA hearing in U.S. v. Yee. Now they're involved in the Simpson trial.

At a recent international DNA symposium, they were reviled in a joking aside by one speaker as the "princes of darkness." Peter Maas, the best-selling writer, describes his two friends by saying, "Scheck is short and pugnacious; Neufeld is tall and pugnacious." Both are known as hard workers who take on a lot of civil liberties cases and pro bono work. Through the Innocence Project, the two have used DNA testing to free several innocent men who were serving time for crimes they did not commit. Scheck and Neufeld, who are in their mid-forties, first came together as Legal Aid "people's lawyers" in a South Bronx ghetto.

Scheck is a professor at Yeshiva University's Cardozo School of Law, where he also directs a criminal law clinic for students. Neufeld is a private practicioner in Manhattan and also teaches law at Fordham University. In December 1994, Neufeld found himself in trouble as he tried to withdraw from a murder trial in New York so that he could devote his full attention to the Simpson case. The New York judge found that Neufeld's declarations "bordered on" perjury and threatened him with contempt and jail if he dropped his east coast client to seek his "fame and fortune" in California. A federal judge also rejected his plea to be removed from the New York case.

William Thompson is an associate professor of criminology at the University of California, Irvine. He has a Ph.D. in psychology and a law degree from Berkeley. Thompson was largely responsible for writing the motion to exclude the DNA evidence and is an excellent writer. His article on lessons from the "DNA War" published in Northwestern University's Journal of Criminology and Criminal Law has become a favorite primer for critics of DNA testing. Thompson's academic commitments may prevent him from having much more involvement in the case.

Defense Experts

The first two experts retained by the defense are widely known and highly respected among forensic scientists. Henry C. Lee is a native of China and, before coming to this country, was a police officer in Taiwan. He now serves as the head of the Connecticut State Police crime laboratory and is a longtime advocate of DNA testing. Lee is an expert in crime scene investigation and blood spatter interpretation. He has investigated more than 5,000 murders, solving a number of difficult homicides, including the infamous case in which a man attempted to dispose of his wife's body by dismembering it with an industrial woodchipper. By arrangement with the State of Connecticut, he is permitted to do private work. He testified, for example, as a defense witness in the William Kennedy Smith rape trial in Palm Beach, Florida. Lee has Governor Weicker's explicit permission to work on the Simpson case. He went to California shortly after the arrest of Simpson and visited the crime scene. He has also been to the Los Angeles Police Department lab to view the evidence.

Ed Blake is the other forensics expert who has worked for the defense from the beginning. He is the founder of Forensic Science Associates, a private lab in California. He has been to the California State Crime Lab in Berkeley frequently and has also visited the Maryland lab and the LAPD lab. Blake is one of the original practicioners of forensic DNA testing in the country. In fact, in 1986, he performed the first DNA testing ever allowed into a courtroom in the United States. Blake was the object of a prosecution subpoena, but Judge Ito refused to issue the subpoena, saying that it was not necessary to have Blake's direct testimony since he has published widely and his views can be ascertained from his writings and his testimony in the scores of previous trials in which he has testified in favor of DNA testing.

Ironically, the defense may decide to not put either of their two top forensic experts on the stand. With the prosecution barred from seeking their testimony, neither Henry Lee nor Ed Blake is likely to be seen at the Kelly-Frye hearing or the trial itself.

Simpson's lawyers delayed submitting their list of witnesses. Rumor suggests that the defense had a difficult time locating desirable witnesses to testify on their behalf. High profile academics such as Lewontin and Hartl, who have testified for the defense in the past, are now satisfied that forensic DNA methods are acceptable. Indeed, Hartl will testify for the prosecution. The defense bar, more and more has been forced to call individuals who are only tangentially qualified to testify on forensic DNA matters.

Prior to being qualified by the judge to give expert testimony each witness will be examined and cross examined in a process called voir dire, from the French "to speak the truth." On cross-examination by the opposing attorneys during voir dire, as well as for the remainder of the hearing, and during the trial a constant goal of the attorneys will be to discredit the opposition's expert witnesses. Attorneys will review transcripts of previous testimony; published and unpublished documents such as articles, grant applications, copies of manuscripts and related correspondence for inconsistencies and ammunition. Anything the attorneys can get their hands on by legal means is fair game, including what are normally treated as confidential matters. The attorneys will bring up questions of conflict of interest, how much money the witnesses have made, if they have testified only for one side, and their outside employment. If judges did not live in such fear of being overturned on appeal they probably would not qualify some of these individuals as experts.

The defense hopes that their main witness, Kary Mullis, will be an ace-in-the-hole, the high trump card that allows them to win the showdown. He is, after all, a Nobel laureate who won his prize by inventing the PCR testing process that the prosecution is using to help prove Simpson's guilt. Although Mullis has already testified in a handful of DNA cases, he can be considered a coup for the defense because the Nobel Prize is so prestigious. He will testify that PCR testing should not be used for identifying criminals.

At the same time, Mullis might backfire on the defense, his views are so often rejected and ridiculed by the scientific community. In Nature magazine for example, Robin Weiss, director of the British Institute of Cancer Research, compared Mullis to William Shockley, who won his Nobel for inventing the transistor. Shockley is most famous for his views that whites are intellectually superior to blacks. While Mullis' views are not racist, they too are offensive to scientists.

He believes that AIDS is spread through the lungs, not sexual contact or shared needles, and that HIV does not cause AIDS. He also believes in a conspiracy linking the "government" and the Mafia, which has targeted O.J. Simpson and aims to bring him down with faked evidence.

Based on his previous testimony, Mullis does not appear to be familiar with the controls which are used in forensic PCR tests that prevent and detect contamination. Indeed, Mullis is largely unfamiliar with current lab practices. He no longer practices science, having abandoned that career to try his hand at writing. His only connection to PCR now is that he hopes (through his company called Stargene) to market pieces of jewelry or trading cards containing PCR-generated DNA from Madonna, Elvis Presley, and other famous personalities.

Seymour Geisser is a biostatistician and the (co)author of about 150 technical articles. For more than twenty years, he has been a professor and the director of the school of statistics at the University of Minnesota. He has testified in dozens of trials as a defense witness against DNA. In previous testimony, Geisser has maitained that the data base upon which DNA frequency estimates is based must be drawn from the geographic area in which the suspect resides.

Elizabeth Thompson chairs the statistics department at the University of Washington, although this year she is on leave at the University of Michigan. A native of Great Britain, Thompson is new to testifying, having only one previous experience (the Hollis case in Seattle, Washington). There she was instrumental in getting the DNA evidence ruled inadmissable. A Seattle lawyer familiar with her testimony in the case observed, "the prosecution often accuse the defense of hiring whores, but Elizabeth was a virgin." William Shields is a professor of biology and the director of the Cranberry Lake Biological Field Station for the State University of New York at Syracuse.

A zoologist by training, he wrote his Ph.D. dissertation on inbreeding and the evolution of sex in birds. His specialties are orinthology and testifying for the defense in DNA cases.

Laurence Mueller is a professor in the Department of Ecology and Evolutionary Biology at the University of California, Irvine. Along with William Thompson (who wrote the motion to exclude DNA evidence for the Simpson team) and Simon Ford, a DNA consultant no longer at the university, the trio became known as the "combine from Irvine" for their prolific work challenging DNA. Mueller has a Ph.D. in ecology and wrote his dissertation on fitness in fruit flies. He has the distinction of earning more money through witness fees than any other veteran of the DNA War.

The Prosecution DNA Team

There are three prosecutors working on the DNA aspects of the case. The lead is Lisa Kahn, the Los Angeles County DNA coordinator since 1990. She is particularily interested in the technical and scientific aspects of the subject and has attended numerous scientific conferences on forensic DNA testing.

Kahn