"Pilnak/Fenjves Contradiction"

I had written, "...I prefer an explanation that permits me to believe as much of the testimony as possible, resorting to rejection of some only when there is no other way to resolve a contradiction. My understanding of the sequence of events in the Simpson case allows me to believe nearly all of the testimony."

To this, you replied, "I don't see how you can believe both Denise Pilnak and Pablo Fenjves."

In saying this, you have presented me with the contradiction in which witnesses (Pilnak/Telander) have been about the most thoroughly discredited of any in the trial. Several authors have repeated Marcia Clark's characterization of Pilnak as a "Simpson-case groupie" and her friend Telander as a compliant accomplice, apparently agreeing with that assessment. Clark, herself, in her book says that "Pilnak's assertions were flat-out comical."

It happens that you raise this question just at a time when I have been refining my own understanding of the significance of the barking dog. It is a rather lengthy subject, and I expect to post my complete understanding of it in a week or two (as "TIMELINE, START"). For now, I will simply state as a premise my conclusion that the best understanding of Fenjves/Storfer/Stein/Tistart, all of whom heard the dog, is that it commenced barking at 10:20, but a small variation of a few minutes earlier is possible. This is in stark contrast to Pilnak/Telander who say they were nearby and at 10:21 did not hear the dog. Hence, the contradiction.

First, I would like to develop the conventional understanding -- that Pilnak/Telander were mistaken in the facts they represented in court. Then, even though I think they could have been mistaken, I will briefly discuss an interpretation in which both they and Fenjves could have given an accurate account of their experience. First, however, I will have to review the testimony.

DENISE PILNAK SAYS: This witness lived at 918 S. Bundy, on the east side of the street, 75 yards south of the corner of Dorothy. At this location she is about as close to Nicole's condo as is Fenjves, though she has fewer intervening structures; she is closer to the intersection of Dorothy and Bundy than he is. She represented that she was self-employed in the "high tech publishing industry." Although it was not mentioned in testimony, she was not so close to either Nicole's condo or the intersection as is Mark Storfer.

Pilnak represented that she is very fussy about detail, and about time in particular -- she wore two wristwatches to court. (But, could not tell Marcia Clark what time she had arrived at the Criminal Courts Building that morning.) She also had produced an itinerary for June 12th in which she accounted -- with seeming precision -- for all of her activities. According to that, her friend Judy Telander had come to visit in mid-day, and stayed until after 10:00 o'clock. In the afternoon, Denise went to church, and in the evening, Pilnak and Telander went to dinner with Pilnak's mother and her mother's husband. After dinner all four returned to Pilnak's home, and shortly thereafter the older couple left to drive to Pilnak's sister's house in Torrance.

At 10:18 (according to the digital time clock on Pilnak's message machine), the critical event of significance for the trial began. In the testimony of her friend, Telander, "Well, at 10:18 Denise said to me, 'You know I have to leave for Aspen in two days so you have to go,' and I looked at my watch and it was also 10:18, but we hadn't printed out my letter yet, so we printed out the letter and we printed out two copies of it, and it took like a minute and 25 seconds for each letter, so I would say that took about three minutes. So it was 10:21 when she walked me out to my car. And we stood on the steps for about three to four minutes talking because she was--you know, she was trying to hurry me out, and then she felt, gee, I was probably a little rushed with her, so I didn't want her to feel bad so we talked for a few minutes." (Pilnak's determination of the 10:18 time was independent of Telander's, and referred to a clock in the house.)

Pilnak describes the experience on the porch, "... it was exceptionally quiet. As long as I've lived in that home [four years], I never remember a night when it was absolutely still. There wasn't a sound to be heard." The two women talked for three or four minutes, at which time Telander got in her car, drove the few yards to Dorothy, made a U-turn, and left the area by driving south on Bundy. There was no barking dog at that time, there were no pedestrians on the street, they do not even recall any passing cars. It was very quiet (and as Telander added, "wet and misty" that night.) Both women agreed to these facts in court, although Pilnak was clearly the source of it, and the driving force behind its publication.

Immediately after seeing off Telander, Pilnak called her mother, to see if she had arrived safely in Torrance; the phone bill (dated July 10th) showed that call began at 10:25 and lasted for three minutes. After she called her mother, she proceeded to clean up the kitchen and did not notice any sounds from outside (it continued to be "exceptionally quiet") until 10:35. At that time she first became aware of a barking dog outside. (Upon being pressed, she admitted that this could have been as early as 10:33.) In this courtroom account, she continued to hear the dog bark for 45 minutes (until 11:20).

The next morning she came out of her house at 8:30 to go running (a frequent activity of hers) and noticed with surprise the crime scene tape and the police cars. She ran until a little before 10:00 when she learned for the first time that Nicole had been murdered the night before.

A SIMPSON CASE "GROUPIE": In her cross-examination of Pilnak, Marcia Clark, among other things, sought to portray her as a person who had actively sought a chance to be part of the court proceedings, and implied that she would fabricate testimony to accomplish that, if necessary. Personally, I am not so cynical as to believe that she came to court and told a story that she knew at the time was false (i.e., she "lied.") But, I will consider the possibility that she convinced herself that she had an experience she did not have, and thus created a circumstance in which she was useful to the defense. That possibility was illuminated on cross-examination.

On January 25, 1995, the day after the opening arguments in the criminal trial, Pilnak transmitted to Vannatter a fax in which she described the same account she gave to the defense attorney in court (above) and accompanied that with the "itinerary" for June 12, 1994 that she had prepared, apparently at that late date, or just in the days before. Prior to that, the only official association that she had with the case was two interviews with the police in the two days following the crimes. She was interviewed on television outside the Bundy crime scene on June 13th, an occasion she defends because she lives nearby. She was also interviewed on television outside Simpson's Rockingham estate on June 14th, which she explains by saying that her usual running venue on Mondays and Tuesdays was in that up-scale, out of the way neighborhood two miles from where she lived. Also at Rockingham on the 14th, she told a print reporter for the Atlanta Constitution that she had heard the dog barking "shortly before midnight." (Steven Schwab had removed the dog from the neighborhood shortly after 11:00 and Sukru Boztepe had brought it back at about midnight; on the return trip, it was not barking. Pilnak's early statements that she heard the dog at any time between 11:15 and midnight are erroneous.)

Pilnak made a verbal statement to police on the 13th, and a more formal statement at about 10:00 on the morning of the 14th which was written up. In both statements she said that she "heard dogs barking on the night of the 12th at about 11:30 pm."

While she was saying goodnight to Telander on her porch, Pilnak did not see any vehicles parked between Dorothy and Nicole's condo, she did not see any pedestrians on the street. She did not see a white Nissan 300ZX northbound on Bundy. She did not hear any loud voices. All of these were features described to the contrary by other defense witnesses. Pilnak had not made notes of the details of her account at the time it occurred, but made the first written record seven months later in January, 1995. The story she told in court was not a recollection, but an admitted reconstruction (she retimed events, and folded in the phone bill for her conversation to her mother.) The Bundy murders and their connection to them became preoccupying for Pilnak and Telander; the latter says that they had discussed them more than 15 or 20 times, and of the event, "It became a part of our life."

The careful reader of the transcript will notice that Pilnak went out of her way to make herself look good. She is a runner (it is fashionable to be a runner.) She engages in name dropping: the restaurant, "dinner at Louise's, across the street from Toscana," and the church, "St. Martin of Tours, on Sunset" These are posh references. While she was cleaning her kitchen after talking to her mother on the phone, she "wash[ed] the crystal goblets." Her self-described employment in the "high tech publishing industry" sounds like common desktop publishing from the details, and a low-tech version at that when a 3-page letter requires 1 minute 25 seconds to print out. She wore two watches, when it was important. And of course, she had to scoot Telander out of the house because she was "going to Aspen in two days." It is fair to say that Pilnak is a person who likes to attract favorable notice to herself.

How much misrembering of actual events is necessary to create this conflict out of an actually benign event? Not much. If the 10:18 reference to the time at which the two women started to print out the letter is moved back by five minutes to 10:13, then the front porch conversation begins at 10:16 and ends at 10:19 when Telander drives away. A second misremembered detail is that there was a five minute span between the time Pilnak came back in the house and she called her mother. (Telander was not a witness to this.) With these two tiny adjustments, Telander is gone and Pilnak is back in the house before the dog begins barking at 10:20. There is no longer a conflict with Fenjves.

And, how much certainty is there in these two details? As late as her Tuesday interviews with the media and the police, Pilnak had apparently not yet considered the implications of her Sunday night experience on the time of the barking dog. It was not until some time between then and January of 1995 that she undertook the reconstruction that caused her to believe that she had been in a position to hear the dog, and did not. The detail that she had shut down working for the day at 10:18 was a rather petty detail at the time, and one that would not be remembered accurately for long. It would be an unusual person who would remember reliably several days later that this had occurred at 10:18, and not 10:13. It is fair to doubt that she remembers this correctly, rather than that she has "reconstructed" it to conform with the result that would allow her to come to court.

But, we can not be absolutely sure, and so turn to the possibility of an innocent explanation.

I'M OKAY, YOU'RE OKAY: Assuming that the Pilnak/Telander account is completely accurate, it still does not necessarily refute the testimony of the several people who heard the dog bark at about 10:20. Notice that no one knows exactly where the dog was when it began barking. It is usually assumed (without any real cause) that the dog began barking upon discovering Nicole's body at the front gate. But, we notice that the dog's bloody paw prints go out the gate, to the sidewalk, south to Dorothy and west before they fade out. Presumably, because of the heavy tracks in blood, this was the first excursion that the dog made, and it took him to the vicinity of the place where Goldman had parked (on Dorothy at the alley.) It is easy to imagine that the dog picked up Goldman's scent from his corpse and backtracked to his car, thereupon finding a dead end. It could have been at this point that the dog set to wailing. (In fact, Stein more believed that the sound came from directly down the alley than from the corner of Dorothy and Bundy.)

Now, if the initial barking came from the alley and Dorothy, there are no intervening buildings on paths to Fenjves, Storfer, or Stein, all of whom said they did hear the dog, but there are all of the buildings along the south side of Dorothy and the west side of Bundy between the dog and Pilnak/Telander. It is therefore quite possible that the dog in that position was heard by all of the people who claimed to hear it, and not by the people who missed it. There is no longer a conflict.

The only possible objection to this explanation is that Telander would then have made her U-turn in the intersection of Dorothy and Bundy while the dog was barking 50 yards away, and she should have heard it. She says that she was driving with her driver's window open (on that night she also says was "wet and misty.") However, traffic on Bundy can travel rather fast after 10:00 on a Sunday night, as a frequent visitor like Telander probably knew. And, less than a block beyond where she made her U-turn there is a jog in the street, so that she could not see approaching traffic more than about a hundred yards from her. That U-turn then becomes a tricky proposition for a careful person, and one requiring her full concentration if it is to be done safely. When that much attention is devoted to making a safe turn, it is possible that an extraneous sound -- like a barking dog -- might be missed for the 15 or 20 seconds that one would be exposed to it.

So, all things considered, Ricky, I don't think there is a conflict between Fenjves and Pilnak. They both reported accurately what they heard. Fenjves heard the dog bark, Pilnak did not hear the dog bark. The most likely reason for this, in my opinion, is that Pilnak has misremembered -- in the service of her vanity -- the time at which she made her observation. If that is not true, then her failure to hear the dog tells us that when it began to bark, the dog was at Dorothy and the alley, from which place Pilnak was not likely to have heard it.

Dick Wagner • Van Nuys, CA (8/22/98) NG374

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