I believed that the defense strategy should focus on the collection and contamination of the evidence, not on the scientific analysis itself. I needed experts not to debunk the science (as was often the case in the early use of DNA evidence) but to find the inevitable human errors and counter them with expertise.
I had never worked on a case before where DNA was involved, and knew little about it. However, I knew enough to realize that the immediate challenge was not only educating myself in the science but learning how to make it understandable to a jury. With the advice and recommendations of Michael Baden and Barbara Wolf, I put together a reading list, preparing my crash course on DNA. I wasn ’t fool enough to anoint myself an instant DNA expert. I had to go elsewhere for that.
Although I ’d not met them, I had seen DNA experts Barry Scheck and Peter Neufeld on TV commenting on the Simpson case, speculating on the role that DNA analysis would play in the prosecution ’s argument. Few defense attorneys had combined national reputations in the field of DNA with acknowledged expertise as trial lawyers, but Scheck and Neufeld were at the top of the field. In addition, they were noted for setting up Yeshiva University ’s Innocence Project, the purpose of which is to use DNA to prove innocence on behalf of people already convicted of crimes.
Michael Baden, when he ’d served on New York governor Mario Cuomo ’s commission on the use of DNA in criminal trials, found Scheck and Neufeld lined up on the other side of the conference table. He was representing the police-and-prosecution side of the argument; they were representing the defense side. Baden told me he thought they were brilliant; “very effective curmudgeons” is how he described them. In asking them to come onto this case, I knew I ’d be presenting them with a dilemma: In order to counter the prosecution ’s use of DNA, I needed them to point out weaknesses of the science they ’d worked so hard to establish as an evidentiary tool. Nevertheless, they agreed to join us. It wasn ’t long before the office staff had dubbed the two New Yorkers Simon and Garfunkel.
A few days after the Bronco chase, Baden, Wolf, and Lee met with Dr. Lakshmanan Sathyavagiswaran, the Los Angeles County coroner, to examine the forensic evidence from the autopsies. Baden and Lakshmanan had known each other for some time. Baden, who years before had hired Lakshmanan at the New York City Medical Examiner ’s Office, called him Lucky.
The district attorney had insisted that everything we do be videotaped, but I appealed to the judge that such action was not only unnecessary, it was unprecedented. Even without the video cameras, Dr. Lakshmanan was exceedingly guarded in his conversations with us. Although he and Baden had great respect and admiration for each other, there was no mistaking the battle line down the middle of the room. Baden, for instance, was later to testify that although he was “allowed” to examine evidence, he wasn ’t allowed to photograph it; and the normally imperturbable Dr. Lee testified that “they wouldn ’t even give me a microscope!”
As they examined the evidence, our scientists found numerous errors had been made. For example, they pointed out a very obvious brain contusion sustained by Nicole that Dr. Irwin Golden, the deputy medical examiner who had actually performed the procedures, had completely missed. In addition, he had discarded her stomach contents without performing the kind of analysis that would have helped narrow the time of death, and he hadn ’t swabbed either Nicole or Ron Goldman for semen samples, a standard procedure in murder investigations. What else, we wondered, had he missed—or done wrong?
Getting the grand jury dismissed didn ’t stop—or negate—the effects of Garcetti ’s comments about Menendez, and Clark ’s comments about O.J. being the sole killer. They had been repeated and reprinted everywhere. Our potential jurors were out there listening and reading; they had some information already and would gain even more with the televised preliminary hearing, so it was imperative that our reasonable-doubt counterattack begin there. (Later, the answers we received on the first round of jury questionnaires indicated that the majority of the pool had seen at least portions of the preliminary and had already formed opinions!) The preliminary hearing would be, in essence, nothing less than a battle for the hearts and minds of the jury pool.
In addition to DNA, the issue I was most focused on was the search-and-seizure procedures of the investigating police officers. Armed with the L.A.P.D. procedures manual and his own extensive experience, Bill Pavelic began a log that cross-referenced official procedure with what the police investigators had actually done at the crime scene. Very quickly, he came up with a damning list: they had failed to notify the coroner in the prescribed time; they had failed to complete individual chronology reports; they prepared erroneous property reports; they misrepresented the facts in the search warrant affidavit on the first day of the investigation; they carried forensic evidence from Bundy to Rockingham, rather than taking it to a lab; they didn ’t secure evidence (Nicole ’s home, O.J. ’s car) in a timely manner; they used the crime scene at Bundy as a staging area for their investigation, using the phone inside the house to make their calls, and the furniture inside to sit on while they talked, rather than cordoning it off completely; and finally, of the chronology reports that were completed, not one was contemporaneous. No one, it seemed, made notes while they looked at their watches. No one had even looked at their watches.
Pavelic was irate. As a senior police detective, he had actually been responsible for auditing the department ’s “murder books,” the step-by-step records investigating officers complete for each case. He well knew what an acceptable level of procedural error should be; in this case, they were way over their limit. “I ’ve never seen a police investigation so screwed up in the infancy stage,” he told me. “If there ’s an anatomy of how not to do an investigation, this might be it.”
The police report on the way evidence was gathered was written by detectives Tom Lange and Philip Vannatter. A common technique to avoid inconsistencies is to have one officer write a summary report, based on individual reports; but the proper procedure is that anyone who does anything substantial is responsible for recording that aspect of the investigation. Mark Fuhrman, who we later discovered had played a key role in the early stage of the investigation, never wrote a single report. The police might argue that Fuhrman had been taken off the case within the first hour, once the elite Robbery-Homicide division came on the scene; however, I would argue that finding a key piece of evidence—the gloves—would certainly qualify as “something substantial” and require a written report, however brief, from Fuhrman. So why didn ’t he write one?
We knew that four detectives (Lange, Vannatter, Fuhrman, and Phillips) left the crime scene on Bundy at a little before 5:00 A.M. after only a minimal, almost perfunctory investigation, and then went to O.J. ’s house at Rockingham—either because they believed that someone there was in imminent danger (according to Fuhrman) or to notify O.J. Simpson of his ex-wife ’s death and the needs of his small children (according to Vannatter). Fuhrman testified that he was the first detective at the Bundy crime scene and, because he knew the way to Rockingham, was asked to show Vannatter how to get there. Vannatter, however, testified that he knew the area well and would have had no trouble whatsoever in getting to Rockingham on his own.
While a personal notification is always appropriate, it was implausible to me that with the entire department brass available, the only four homicide detectives on a case would leave a crime scene—and let another ten hours pass before the coroner was called to that scene, which is a violation of state law. Why didn ’t two detectives go to Rockingham and two stay at Bundy? Why was the department criminalist, Dennis Fung, dispatched to Rockingham first (where no crime was known to have taken place) as opposed to Bundy (where evidence of a double homicide was everywhere)?
If, as Vannatter testified, O.J. was not then a suspect, why, when no one answered the telephone or the bell at the gate after ten or fifteen minutes, didn ’t they say “Let ’s go back to Bundy and continue the investigation”? Instead, Fuhrman testified that h
e decided to take a walk around the corner and coincidentally saw the Bronco, parked at what he thought was an odd or inappropriate angle. On further inspection, he said, he saw blood—a minuscule blood spot on the driver ’s door near the handle, as well as faint blood smears on the bottom of the door. Now, he decided, it was an emergency, so he scaled the fence, opened the gate for the others, and they all proceeded to inspect the property for hours without a warrant. They discovered O.J. ’s daughter, Arnelle, and Kato Kaelin, in their separate quarters outside the main house. The detectives woke them up, questioned them, and told Arnelle she had to let them into the house “so they could search the premises.” It ’s here where the notification explanation quite obviously falls apart.
If, however, the other explanation prevailed—and they believed an additional crime might have been committed or was possibly being committed that moment at Rockingham, placing its inhabitants in danger—why did they go there without calling for backup, without bullet-proof vests, without drawn weapons? Why, if they believed that criminals might have been lurking and house occupants might have been in danger, did they ask Arnelle Simpson, a young woman, to go back into the house first, alone? Once in the house, why didn ’t the detectives themselves immediately go upstairs? There were any number of rooms and closets where someone could have been hiding.
Warrants are available twenty-four hours a day, and at night they are frequently granted over the telephone; in fact, judges are assigned to night duty for that specific purpose. But not until six hours after arriving at Rockingham did the police finally obtain a search warrant, one based primarily on their contention that Mr. Simpson had “suddenly” gone on an “unexpected” trip—when in fact they ’d been told quite clearly by Arnelle and Cathy Randa that his trip had been planned for some time. In fact, they ’d spoken to O.J. in Chicago at that point. They knew where he was; they knew the Chicago police would have assisted in keeping him from fleeing, or escorted him back to Los Angeles.
And when Fuhrman found that leather glove at Rockingham, wouldn ’t that have been an occasion to share his finding as soon as possible with all the other detectives? An officer who had just come from a crime scene where one glove was discovered and then found what looked like its match in a second location—wouldn ’t he have wanted his colleagues to know this immediately? Why instead did he approach the detectives one by one and take them individually to the place where the glove lay? His behavior didn ’t pass the common-sense test.
In addition, although Vannatter testified that O.J. ’s Bronco (which had been parked on the street) had been secured by the police at 7:00 A.M., our own investigation revealed coffee stains on the hood of the car as a result of the press gathering around and leaving their cups on it. Not only had the car not been correctly secured, it apparently took on the public-access status of a park bench. We even had a video of someone—not a police officer—touching the door handle on the driver ’s side as the car was being towed to Viertel ’s, the police-authorized towing service. An employee from the towing service, John Meraz, was later to testify that not only did other employees get in and out of the Bronco (in an odd sort of curiosity-seeking behavior), but he himself took credit-card receipts from it, receipts that had been signed by both O.J. and Nicole. The lax security conditions and easy access to the Bronco lasted for nearly three months.
So what was their story? Did four homicide detectives leave a crime scene to notify an ex-spouse (who was not, in fact, the next of kin to the murdered woman) of those murders? Did they rush to Rockingham to save its inhabitants from harm? Or did they rush to judgment, deciding among themselves in those early dawn hours that O.J. Simpson was the primary suspect and therefore it didn ’t matter which came first, the evidence or the warrants? It was the old police shell game: The pea ’s under here; we know it, and it doesn ’t matter how we get it.
Ironically, if the detectives had said from the very beginning that they believed O.J. was a suspect and they were in hot pursuit, such an opinion would ’ve been sufficient to allow their entry onto the property without a warrant. Instead, unwittingly or not, they built a web of lies, with Mark Fuhrman at its center. And then they got caught in it.
The criminal process is divided into two general areas: factual issues and legal issues. Factual issues are determined by a “trier of fact,” which can be either a judge or jury. Legal issues are determined only by a judge. These are not “technicalities” or “loopholes.” They are constitutional rights.
Prior to the preliminary hearing, Gerry Uelmen, Sara Caplan, and I prepared and filed a motion on Wednesday, June 24, stating that the thirty-four items of evidence taken from Rockingham were gathered in violation of O.J. ’s Fourth Amendment right of protection against illegal search and seizure, and therefore should be inadmissible. In raising the admissibility of the evidence, we were challenging the validity of the warrants but not the credibility of the officers; that would be saved until later. Los Angeles municipal judge Kathleen Kennedy-Powell stated that she would hear defense and prosecution arguments and rule on the motion the following week.
The law in California allows us to raise search-and-seizure issues only once; thus if we raise them at a preliminary hearing in municipal court, we can ’t raise them again in superior court. So caution—and strategic planning—generally dictate that motions be made later rather than sooner. And the reality is that judges generally apply a lighter constitutional standard as evidence becomes more important to the prosecution ’s case and thus harder to exclude. For example, if under the same set of circumstances either a small amount of marijuana is found or a murder weapon is found, a judge might be inclined to grant the defense an illegal search motion for the marijuana (therefore not allowing it into evidence), but he wouldn ’t be likely to do the same for a murder weapon, given the negative consequences to the prosecution.
I decided to hold off litigating the credibility of the search warrants themselves until we got to superior court, to the trial. This turned out to be the right decision, because even though Judge Ito ultimately upheld the warrants, he also found that Detective Vannatter had exercised a “reckless disregard for the truth” when he procured them. That ’s harsh on-the-record language, and it certainly went to the credibility of one of the lead detectives in this investigation.
On Sunday, June 26, the weekend between the grand jury and the preliminary hearings, I called a last-minute summit meeting of friends and colleagues in my legal community who specialized in strategy, trial law, and appellate law. These were lawyers whose reputations were excellent, whose peer group held them in the highest esteem, and whose advice and counsel I greatly valued. They willingly came, with very little notice and no compensation, knowing that this wasn ’t an “audition” for a position on the defense team but a brainstorming session for my benefit—and, by extension, for my client ’s. Forty were invited; thirty-nine attended. Only Barry Tarlow, a gifted trial and appellate lawyer, was missing—because he mistakenly did not get the message.
The group included my associates Sara Caplan and Karen Filipi; Don Ré, one of the lawyers instrumental in the DeLorean case; Mona Soo Hoo, who had worked with Ré and prepared all the DeLorean motions; Alvin Michaelson and Janet Levine, two estimable trial lawyers; Marshall Grossman, a civil trial lawyer; Larry Feldman, a personal-injury specialist who had successfully represented the young boy who accused Michael Jackson of molestation; Michael Nasatir and Richard Hirsch, college classmates of mine and former federal prosecutors; Jay Jaffe, a USC graduate and authority on criminal law, as well as an expert in capital punishment; Dennis Fischer and Charles Lindner, the appellate specialists we would later bring in to help us with writs on motions that had been denied by Judge Lance Ito; Tony Glassman, a First Amendment specialist; Terry Christensen and Patty Glaser, superb trial lawyers who were later to become my partners; Richard Sherman, a trial lawyer who had been Gerry Spence ’s protégé; and Roger Cossack, a former U.S. attorney and now host of CNN ’s Burden of Proof.<
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All through that day, this summit made a 360-degree examination of every aspect of the case any of us could imagine. We made lists, invented hypotheticals, shared opinions, experiences, and lists of potential expert witnesses. We compared notes on jury consultants: Who had everyone used? Of those, which ones had been effective? Which ones had been less so? What kind of courtroom style and expertise would be required at the trial, and what kind of technology? We talked about graphic artists and the preparation of demonstrative evidence, such as computerized graphics of timelines and charts of medical evidence. What lawyers should possibly be at the defense table with me? Who would be more effective working in the background?
With Marcia Clark representing the prosecution, I felt strongly that a woman as defense co-counsel would strengthen the case. I ’ve always enjoyed working with women lawyers, and have worked with some brilliant ones. Call it instinct, women ’s intuition, the ability to relate to female jurors—I ’ve found all these qualities to be advantageous.
In addition, since the D.A. had chosen to prosecute the case in downtown Los Angeles, we knew that a mixed-race jury was a given. And although African Americans make up a relatively small percentage of the voter registration, when it comes to jury service, the downtown panels generally include a higher proportion of black jurors. Bringing in an African-American woman lawyer might serve to psychologically balance the fact that O.J. had been married to a white woman. It might also give me greater insight into the thinking of African-American women jurors, and women in general, on the allegations of past spouse abuse, which the district attorney was clearly going to use to establish motive. But would it be perceived positively or would it simply look like tokenism? Would it put undue emphasis on race as a factor in the case, or would it provide a common-sense depth and balance that we might otherwise be lacking?
The Search for Justice Page 9