“An independent review from the grand jury is out of the question now,” I told Dershowitz and Uelmen. “I think we should consider filing a motion to disqualify the grand jury, shut it down, based on prosecutorial misconduct.”
Their reaction was hardly a vote of confidence. Gerry said we had no chance for the motion to prevail; Alan, ever the optimist, thought it was worth giving it a try but acknowledged that our chances weren ’t great. Nevertheless, with Sara Caplan ’s assistance, we started looking for precedents. Yet we couldn ’t find a single case—in the entire country—that had ever managed to stop a grand jury before deliberation.
“I want to pursue it anyway,” I insisted. “Garcetti ’s gone too far, he ’s writing ‘case closed ’ on this before we ’ve even begun, and he ’s doing it in public.” In fact, I believed that when Garcetti opened up on us with his public-relations big guns, he also opened up a hole big enough to drive the Constitution through.
For days, Uelmen, Dershowitz, Sara and I prepared separate drafts on how to approach this; the ultimate motion would incorporate everyone ’s thoughts and research, but the thrust of the argument remained prosecutorial misconduct. And while we were working—fully aware that the grand jury was hearing secret testimony at the same time—the 911 tapes were released.
In response to a demand from news organizations citing California ’s Public Records Act, L.A. city attorney James Hahn had released tape-recordings of phone calls that Nicole Brown Simpson had made in 199, to the 911 police emergency number. They were being played on radio and television broadcasts, and the transcript of the tapes was being read, not just in Los Angeles but all across the country.
I had an immediate visceral reaction to the tapes, and not just because they related to O.J. The previous year, I had represented Tina Sinatra in her action against James Farentino, her former companion. After their five-year relationship ended, Farentino had begun harassing Tina, leaving frightening messages, up to fifty or sixty a day at one point, on her phone and fax machines. Although he never physically abused her, the angry messages included threats of physical violence or death to her and members of her family, as well as destruction of property. Tina never took the threats lightly; Farentino was known to have a temper, and a recurring battle with alcohol, which she knew exacerbated his behavior. Caught between her compassion for him, and her growing fears for her own safety, Tina waited for months before telling anyone what was going on. “I knew it was out of control,” she said, “but I was embarrassed, and scared for him.”
When she finally reported the matter to the police, they were sympathetic, but because the couple was not living together, and because there were never any physical acts of violence, there was very little they could do. Tina obtained a restraining order that forbade Farentino to contact her, but as most victims discover, weaknesses in enforcement can make a restraining order an empty remedy. “We can ’t make an arrest until someone is hurt” is a frequent response. And besides, how do you restrain a fax machine? That ’s when Tina came to me, completely stressed out, angry, and frightened. She needed to find a way to stop Farentino before his behavior grew worse, which she absolutely believed would happen.
Bill Pavelic began an investigation that traced the pattern of phone and fax messages, establishing clearly that they were coming from Farentino. We then went to Los Angeles city attorney James Hahn, who has been very active in pursuing victims ’ rights, and presented him with our information. The constantly escalating threats and Farentino ’s refusal to abide by the restraining order were sufficient to bring the case into the realm of the state ’s stalking laws. At that time, stalking was a misdemeanor in California; now it ’s a felony.
Farentino was arrested and charged with twenty-four misdemeanor counts of stalking. He ultimately pleaded no contest to one count and was sentenced to thirty-six months probation and a regimen of psychiatric and alcohol counseling. The legal remedy and the subsequent treatment were successful; both parties have now gone on with their lives. However, when I heard the sound of Nicole ’s voice on the 911 tapes, I heard the same fear that Tina had experienced. Indeed, anyone who heard the tapes—and much of the world did—would never be able to forget the sound of the frightened woman and the enraged man.
The police department blamed the district attorney ’s office for releasing the tapes; Garcetti ’s office blamed the city attorney. I didn ’t care at that point whose fault it was, I only knew that the tapes should never have been released at all. How could a jury be impaneled after this? How could O.J. ever get a fair trial?
Chief of Police Willie Williams quickly agreed to impose a gag order on his department, and Garcetti pledged that no matter what pressures the press brought to bear, absolutely nothing more would be released by his office or the L.A.P.D. He said he disagreed with Hahn ’s release of the tapes and claimed that in spite of the publicity, he had no doubt about the possibility of an impartial jury and a fair trial for O.J. “I ’m confident,” he said, “that we can find twelve jurors who know very little about this.” And where will you find them? I wondered. Living in caves?
That same week, Time and Newsweek ran identical covers of the police photograph that had been taken when O.J. was arrested after the Bronco chase. But Time had tinkered with their version, making O.J. ’s skin tone darker than it actually is, much darker than the original photo itself. This is getting out of hand, I thought angrily. This isn ’t a courtroom sketch artist ’s rendering they ’re fooling with here, it ’s a real photograph. What were the editors thinking? Why make a black man look blacker than he is?
There was an immediate, and negative, public response to the photo “enhancement” and a subsequent apology from Time ’s editors, but I guessed that the people who read the apology were a tiny fraction of those who had seen the magazine cover.
Finally, at 8:30 on June 24—exactly one week after the Bronco ride—Gerry Uelmen and I were ready to file our motion to stop the grand jury. On the way to court, Uelmen looked at me and said, “Bob, we ’re right to file this, but you know we ’re going to lose.”
“I think we ’re going to win,” I said. “Because we ’re right.” If we won, it would be an unprecedented legal victory; if we lost, at the very least it would be the beginning of what lawyers call “building the record,” forming the basis for an appeal in case of a conviction.
We filed our motion with Superior Court Judge Lance A. Ito (who at that time was the assistant supervising judge of the criminal division but had not yet been assigned to hear this case). Our brief requested that he question each of the twenty-three grand jurors to determine if they ’d heard either Garcetti ’s statements or the 911 tapes and might possibly be influenced by them. We also brought up the fact that a day or two earlier Marcia Clark had publicly concluded that O.J. was the “sole murderer.”
“The district attorney ’s office has improperly released, and massive publicity has been given by the media to, inadmissible evidence in this case, the best example of which was the massive airing… of the 911 tapes,” we argued.
“Before any charges were brought or conclusive tests could be run, the public was made aware of bloodstains on driveways, matching blood types, bloody gloves, and the alleged weapon,” read our motion. Uelmen stated that the “barrage of publicity” had been “unprecedented.”
While we were presenting our motion before Judge Ito, Judge Cecil Mills, the supervising judge of the Superior Court (for both civil and criminal court), was interviewing the grand jurors, reportedly in response to a request from Gil Garcetti, perhaps motivated by the copy of our motion in his hand. What Mills was hearing from the jurors disturbed him, and at 10:30 that morning, he issued his ruling.
“Having made the inquiry, the court finds that as an unanticipated result of the unique circumstances of this matter pending before the 1993–1994 grand jury, some jurors have become aware of potentially prejudicial matters not officially presented to them by the district attorney,” he said. He was
thus dismissing the grand jury “to preclude any unintended consideration of prejudicial matter and protect the due process rights of Mr. Simpson and the integrity of the grand jury process.”
We had won it! We had gotten a grand jury dismissed before they ’d ruled, and we had created legal precedent at the same time. And a good thing, too: At the point at which they were stopped, the jurors had heard all the testimony and were on the verge of taking a vote. One dismissed grand juror was quoted as saying, “Almost everything that the jury knows has been reported in the paper. I would say if you read the papers, you know everything the grand jury knows.” Included in our motion was a request for the transcript of the grand jury proceedings, which would normally have been kept secret. The transcript would give us a good preview of the prosecution witness lineup.
I felt like we had been taking a beating for days, and now the momentum had finally, finally shifted in our favor. Now the district attorney would either have to impanel a new grand jury or schedule a preliminary hearing. In fact, California law entitles people in custody to preliminary hearings within ten days of being charged.
Rarely, however, can anyone meet that deadline. Courts are crowded, lawyers need time to prepare, and a “waiver of time” is routinely granted to the defense to allow additional preparation time. We heard reports that just after the grand jury was dismissed, Garcetti held a meeting of his assistant district attorneys in which he asked how many of them had ever tried a preliminary hearing with me. Almost all the hands went up. When he facetiously countered with, “And how many of those hearings started on time?” most of the hands went down. So the prosecution ’s office thought they were safe in assuming that with a high-profile double homicide, and a defendant possibly facing the death penalty, we would be in dire need of a waiver of time before beginning a preliminary hearing. And I knew that if we asked for it, we could get it. Which would, in turn, give them more time. I decided not to ask for it.
We were ready to go, and they were not.
Chapter Four
As he became more involved in the decision making—and more knowledgeable about the judicial process—O.J. began adjusting his hope of being home in time to go trick-or-treating with his kids for Halloween. Maybe Thanksgiving made more sense. Christmas at the latest. We couldn ’t have imagined that it would be Halloween—a year later.
In my opinion, we were ready to go ahead with a preliminary hearing the following week. The prosecution didn ’t expect us to be prepared so soon—I ’m sure they believed we would ask for a waiver of time. Putting the pressure on them, and ourselves, was a risk. But it was one I wanted to take.
Getting ready for a preliminary in such a short time required an effort that, as always, paralleled the prosecution ’s. My associates, Sara Caplan and Karen Filipi, put in extraordinarily long days, checking and cross-checking motions, witness statements, and reports and memos from the investigators. Since Karen had recently left the district attorney ’s office, she was very familiar with their procedures, and Sara, a Phi Beta Kappa graduate, was as diligent as she was smart. I knew they wouldn ’t miss anything.
The clerical work alone was daunting: There were fourteen people on our document-distribution list, so every memo, every motion, every piece of paper was duplicated fourteen times and distributed. We ’d experienced a lot of document bootlegging during the Brando trial, so the duplication process had to be monitored very closely. If the originals were taken out of the office to a copy service, someone from the office would stand beside the machine and watch every piece of paper that went in and every piece of paper that came out. When paper jams stopped the photocopiers, Bonnie took the crumpled paper home and destroyed it there. She kept a close eye on the gentlemanly Dean Uelmen as he sat in the research library poring over law books, drafting motions, and writing in longhand on yellow legal pads. Not one of his discarded yellow sheets was ever allowed to sit in a trash can or on a tabletop.
Barbara Wolf devised a complex computerized tracking system for the forensic evidence—blood, hair, body fluids, fabric, clothing items—that had been gathered at the crime scene and was going out to labs for analysis. As part of discovery—the mandated exchange of information between the prosecution and the defense—we would receive memos or lists of items, their destinations, and all ultimate test results. Wolf and Baden would then chart everything. The list, which was originally numbered I through 60, was close to 400 by the end of the trial.
Knowing that the tabloids would go through people ’s garbage, I got a paper shredder for the office and home, and Bob Kardashian and Skip Taft each got one as well. In addition, we began to pay extra careful attention to the messages coming in on the phone lines, as Bonnie screened them and passed them on to Bill Pavelic.
There are two different strategies a district attorney can use at a preliminary hearing. One is the bare-bones approach: presenting a small amount of evidence to get by the “probable cause” burden set by law, which is quite minimal. In the second approach, all, or nearly all, of the evidence is laid out, in a process that almost resembles a dress rehearsal for the trial itself. This is often done with high-profile cases, so that the prosecution can publicly demonstrate the strength of its case and at the same time counter any possible cynical public opinion.
If the bare-bones approach to a preliminary was used against Simpson, the public might wonder where all the evidence was. And if we had gone from a secret grand jury hearing directly to an indictment, the defense wouldn ’t have been able to see the prosecution ’s cards. However, with the kind of preliminary hearing I suspected we were about to get, I ’d not only be able to see what they were holding, I might even be able to raise the bet.
From the defense standpoint, a preliminary hearing can work in two ways: first, as a discovery tool, to find out about the prosecution ’s case; second, as a way to lay the groundwork for the trial itself. In essence, a preliminary can serve as a small-scale trial, and in the O.J. Simpson case, that ’s exactly what happened. What is normally a perfunctory stage in a case very quickly became an essential part—if not the essential part—of the Simpson defense strategy. And within two weeks of O.J. ’s arrest, we had laid the groundwork for the trial that we knew was coming.
From the very beginning, we believed the scientific evidence would be the strongest part of the D.A. ’s case, and we would most likely have to embrace the science rather than attack it. DNA is accepted as legitimate in the scientific community; and generally, whatever is accepted in the scientific community is accepted by the public at large, even though very few people have any real understanding of it, including lawyers who practice in the criminal courts on a daily basis. Since 1987, DNA evidence has been admissible in most U.S. courts, although Washington, Arizona, Vermont, and Massachusetts have ruled it inadmissible for the time being. So far, however, it ’s been used in more than twenty thousand cases.
Contained within our chromosomes—and identifiable in blood, blood stains, hair, semen, body fluids, and skin tissue—DNA (deoxyribonucleic acid) is often referred to as the “building block” or “genetic fingerprint” of human beings. More that 99 percent of human DNA is identical among individuals. It is the less than I percent remaining that gives individuals (with the exception of identical twins) unique characteristics and can make DNA a vital piece of evidence in a criminal case. Properly collected dried blood or semen stains, tissue fragments, or chemically preserved whole blood can link a suspect to a scene or victim, a weapon to a victim, or a victim to a particular location. A defendant ’s blood type is cross-matched with blood or tissue samples found at a crime scene, to see if there is a match. Then lab technicians run a set of statistics that point to how likely—or not—it is that the match might be the result of a false positive.
Initially, forensic DNA typing is performed through a process termed restriction fragment length polymorphism, or RFLP. Using a technique called autoradiography, in which a radiograph resulting from the exposure of X-ray film corresponds t
o fragments of DNA labeled with a radioactive probe, RFLP detects DNA sequences repeated a variable number of times among different individuals. The technician then compares the autoradiogram with a sample obtained from a suspect.
However, if forensic specimens have deteriorated or degraded, there may not be an amount of DNA sufficient to do RFLP testing. When that ’s the case, the next step is polymerase chain reaction (PCR) technology, which allows as little as one to two nanograms of DNA to be amplified hundreds of thousands of times, in a process popularly called “molecular Xeroxing.” RFLP is considered to be more specifically “discriminatory”—that is, precise; PCR is faster and can be applied to smaller samples, or to those in poor condition.
Over the years, there has been a great debate about the admissibility of DNA evidence. With all science there are pitfalls, and DNA typing, for all its scientific reliability, is not immune. There are three billion chemical units to each human being ’s heredity. DNA only tests for six of them. Another argument says that DNA statistics can be so overwhelming to a jury that they effectively cancel the importance of other evidence, predisposing a jury to a prosecution ’s argument. In addition, if specimens for analysis are not properly collected and preserved, their biological activity may be lost. Yet another argument debates the reliability of “population genetics,” which places individuals and their DNA characteristics in relation to ethnic groups. Additionally, there is subjectivity inherent in interpreting the results of DNA typing; that is, one forensic scientist may interpret a test differently than another. And as with all forensic evidence, DNA evidence doesn ’t exist in a vacuum; it must be interpreted in light of other information and other evidence. For example, although DNA collected at a particular scene may link an individual to that scene, it doesn ’t tell us when that DNA was left there. Furthermore, although RFLP had been admitted in trials all over the country, PCR had never been admitted in California by any appellate court.
The Search for Justice Page 8