The Search for Justice

by Robert L Shapiro

  Most clients don ’t understand why, if we are correct on the law, rulings go against us. They learn quickly that where the credibility of police witnesses is at issue, it ’s a rare judge with guts enough to rule that the police can ’t always be believed. The public misconception about weak or lenient judges who let criminals off on a technicality is pure fiction; for instance, even when Judge Ito criticized Vannatter ’s “reckless disregard for the truth,” he ruled the search warrant valid and let the evidence stand.

  Early in the preliminary hearing we discovered that at least one witness who had appeared during the grand jury hearings would not be called by the prosecution. Jill Shively, who alleged that she had seen O.J. ’s Bronco leaving Bundy, sold her story—on the same day she testified—to TV ’s Hard Copy for $5000 and to the Star tabloid for $2600—which in my opinion consigned her testimony to the cash-for-trash bin. Perhaps Clark and Hodgman concurred, since she was never called to testify.

  The early witnesses, all Nicole ’s neighbors, were used to establish a time of death, roughly between 10:00 and 11:00 P.M. Pablo Fenjves talked about hearing the “plaintive wail” of a dog—which we were clearly meant to believe was Nicole ’s Akita—between 10:00 and 10:30. At 11:00, Steven Schwab, out walking his own dog, saw the Akita with blood on his paws. Sukru Boztepe and Bettinna Rasmussen then testified to finding the bodies of Nicole and Ron on the sidewalk at Bundy at midnight.

  On July 5 and 6, Gerry Uelmen carefully cross-examined Mark Fuhrman, pushing for inconsistencies in his version of events. I had seen Fuhrman earlier, out in the hall. “This is your lucky day,” I told him.

  “Oh, really?” he said. “And just why is that?”

  “Because I ’m not doing the cross, Uelmen is.” Fuhrman was the prosecution ’s central seizure-of-evidence witness, and Uelmen was the defense point man for search-and-seizure issues. I would get my chance to cross-examine Fuhrman at the trial itself, and I didn ’t want him to be prepared for me. For now, I just wanted to watch and listen.

  Fuhrman first became concerned about what was going on behind the security fence at Rockingham, he told Uelmen, because of O.J. ’s Ford Bronco “carelessly, haphazardly parked… its rear end jutting out into the street, maybe a foot farther than the front.” When he examined the car, Fuhrman saw a plastic bag and shovel in the rear, a blood dot above the outside handle on the driver ’s door, and also something that looked like blood brush marks or swipes on the bottom of the door. That ’s when he decided to go over the fence—which led, ultimately, to discovery of the glove.

  The “plastic bag” was standard to the Bronco; it was part of the cargo-carrying equipment. The shovel was used to clean up after the dogs at both Bundy and Rockingham. Neither item, in any context, was particularly sinister.

  I then cross-examined Detective Philip Vannatter, the senior member of the investigative team. I knew I needed to be as aggressive and forceful as possible, not just to unravel the facts in his testimony, which would eventually impeach his credibility, but also to keep him slightly off balance. Almost immediately I challenged him on the maintenance of the L.A.P.D. ’s murder book for the Simpson case. The book is provided to the prosecution, which in turn shares it with the defense as part of the discovery process. In this case, Bill Pavelic had convinced me that the record-keeping had been particularly sloppy. On the subject of the blood on the Bronco, Vannatter testified that indeed, he needed glasses to see the speck of blood near the door handle and did not see—and did not record—the blood “swipes” near the bottom of the driver ’s door that Fuhrman had seen.

  There was also a brief and revelatory exchange regarding Fuhrman ’s reason for leaving Bundy in order to lead the others to Rockingham. Vannatter testified that he was familiar with the neighborhood and would have been perfectly capable of getting to Rockingham on his own.

  Vannatter agreed with me that the police didn ’t go personally to notify Mr. Goldman ’s family of his death, as they did with O.J., nor did they take pictures of Kato ’s car as they did O.J. ’s, even though it was also at Rockingham. Obviously, their focus was only O.J. from the very beginning. “If Mr. Goldman had been the sole victim of this case under the same circumstances,” I asked him, “would the same investigation be taking place?” Clark objected; the judge sustained her objection. But I felt that I ’d made my point.

  Gerry Uelmen on direct examination, to Arnelle Simpson: “Did you tell the officers they had your permission to search the premises or to seize any property on the premises?”

  “No,” she answered, “I did not.”

  “Did any officer ask you if he could take any item from the premises?”

  “No,” she said.

  Dennis Fung, the L.A.P.D. criminalist, questioned by Uelmen, testified that he ’d first received a call at 5:30 A.M.—to go to Rockingham, not Bundy. He arrived at 7:10 and tested the Bronco for only one blood spot.

  On July 7, the testimony of Detective Tom Lange primarily established the late coroner call to Bundy and contamination of evidence because of “loose” securing of premises. Lange stated that they found a total of five dime-size droplets of blood not belonging to Nicole or Ron Goldman at Bundy, but there was no way to ascertain when they were left there.

  Marcia Clark, as she finished up with Thano Peratis, the nurse who took O.J. ’s blood at the lab and put the bandage on his finger: “One more question, Your Honor?”

  Judge Kennedy-Powell: “You always have one.”

  Clark: “I know. It might be a prosecutor ’s last-word thing.”

  On July 8, L.A.P.D. criminalist Gregory Matheson testified that after performing standard blood-typing, or basic serology, tests on Nicole ’s blood (type AB), Ron Goldman ’s (type 0), and O.J. ’s (type A), he then analyzed a dime-size blood drop, one of five discovered at the Bundy crime scene. The serology testing ruled out that drop as belonging to either Nicole or Ron and indicated a likelihood that, according to the crime-lab data, the crime-scene blood drop had the same characteristics as the blood from one out of every two hundred people. O.J., he said, was in that blood group.

  Watching Dean Uelmen ’s careful cross-examination was like observing a quietly determined chess master. He elicited the information that because the police lab primarily runs tests on people arrested or suspected of criminal activity, the data base resulting from those tests is not representative of the population as a whole; in fact, ethnic and racial minorities are substantially overrepresented. For example, the African-American population in California is about 7 percent of the total population but accounts for approximately a third of the arrests.

  “The tests… are exclusionary tests, is that correct?” asked the Dean. “None of these tests can tell you specifically that a particular bloodstain was left by a particular person?”

  “That ’s correct,” answered Matheson. “There ’s nothing here that would individualize a stain to any one particular person.”

  “So any attempt to analogize this to fingerprints or precise identification of a person would be inaccurate?”

  “That ’s correct,” Matheson said.

  During his cross, Uelmen was able to successfully raise questions about contamination in the lab and point out problems with the collection and storage of blood samples. When asked whether the blood at the scene could have been a mixture of blood of both victims and assailant, Matheson said he didn ’t have a test that could either ascertain that or rule it out. In addition, we were able to get on the record that anywhere from 40,000 to 80,000 people in the Los Angeles area carried the same genetic markers contained in the blood drops found at Bundy but ruled out as being Nicole ’s or Ron Goldman ’s. All in all, I felt that Uelmen had laid some fine tactical groundwork for the trial.

  Additional groundwork was laid with my cross-examination of Dr. Irwin Golden, the Los Angeles deputy coroner who had performed the autopsies. In addition to helping establish the time and cause of death, the main contribution a coroner can make is to determine the type
and size of the murder weapon. I had gone over Dr. Golden ’s report with Michael Baden and knew that his testimony would be both grim and graphic. I also knew his report was full of errors; ultimately, the coroner ’s office would own up to making at least sixteen mistakes.

  In the absence of an eyewitness, pinpointing a time of death is difficult. The sooner a coroner begins an examination (using such criteria as body temperature, stomach contents, and degree of rigor mortis), the more likely it is that an accurate time can be estimated. In this instance, the L.A.P.D. delayed calling the coroner for ten hours. In addition to mislabeling forensic evidence (fluid samples from Nicole ’s body), the coroner discarded Nicole ’s stomach contents, although he saved Ron Goldman ’s. On direct examination, Golden stated that he could only put time of death somewhere between 9:00 P.M. and midnight. On cross-examination, however, he stated that three out of four forensic criteria for setting the time would put death after 11:00 P.M.—which was, of course, critical to O.J. ’s alibi.

  No one in the courtroom was immune to the horror and sadness that Golden ’s descriptions of the two bodies evoked, and as I cross-examined him, I was acutely aware of Nicole ’s father and Ron Goldman ’s young sister sitting somewhere behind me. The senior Goldmans had gone out to the hall when they just couldn ’t listen anymore. My wife was also in the courtroom. She ’d come every day during the preliminary hearing, and we took these images home with us each night. But there was no way to tiptoe through cross-examining someone I believed had been incompetent, especially since it was Golden who had assured Lange and Vannatter that the knife O.J. had purchased could have been the murder weapon. It was consistent with “some of the wounds,” he said, “with many of the wounds.”

  “There are two morphologically different types of stab wounds on the victims,” he said. “Some… are indicative of a single-edge blade, some of the wounds have a characteristically double-pointed or forked end.” This indicated, he said, that the wounds could have been made by two different weapons, a single-edge blade and a double-edge blade, thus raising the distinct possibility of a second assailant. I moved in on him a little, asking why he hadn ’t yet done more detailed, definitive testing to try to exclude the weapon similar to the one O.J. had purchased. Such a test existed; he just hadn ’t done it yet. Why was that? His response was that he figured that testing could be “done at some other time.”

  “You understand a man is sitting in jail, facing charges of double homicide, do you not?” I asked. “When could those tests be done, to protect his rights? When would you suggest doing these tests?”

  “Now?” he responded stiffly, with a somewhat puzzled look on his face.

  Months later, when I heard Michael Baden say on television that “the coroner ’s office is not just a body removal service,” I remembered that moment in court with Golden. Baden ’s tremendous respect for human life contains within it an equal respect for death and the mysteries that surround it. Baden has always maintained, as does Dr. Henry Lee, that the job of forensic specialists is not to answer the whodunit question but rather to find out what happened—to reconstruct the way that someone ’s life ended and not take sides or make assumptions in the process. The difference between these two men and Golden, I ’ve decided, is that Golden is the kind of man who can eat lunch and examine bodies at the same time.

  On July 8, I made my closing arguments to the preliminary hearing, which included the following:

  If in fact the killer lived at the Simpson residence [Rockingham], the court would have to believe the following: that in a window period of less than an hour, the killer was able to leave the crime scene that has been described with a victim with two arteries in the neck cut, two jugular veins cut, and massive blood from both victims. A clear inference would be that the murderer was indeed covered with blood. The murderer would then have to do the following: abandon the bloody clothing, because they have not been found or presented; abandon the murder weapon, because that has not been found or discovered; abandon bloody shoes, because they have not been found or discovered, and then go back to his house and leave a bloody glove in his backyard. That just doesn ’t stand up to logic…. This is a case that the police admit is still under investigation, where other suspects are being sought, where the medical examiner admits that two weapons could have been used—a clear inference that there may be more than one killer.

  I don ’t want to go through each and every area of impeachment with the witnesses, but I think it is very, very clear that everybody who has participated in this investigation has not done so in a professional manner. From the time the Los Angeles Police Department arrived on the crime scene, it was nearly ten hours later until they started the scientific investigation and even took the temperature of the body. There was testimony that the fire department obviously was there and left and didn ’t do anything, yet the coroner ’s records clearly indicate that the fire department chief was the person who pronounced the bodies dead. I doubt if he did that from a distance.

  This is a case that everybody has jumped to an immediate and unrealistic conclusion as to the state of this evidence. This is a case that is not ready yet to come to court.

  At the end of that day ’s hearing, Judge Kennedy-Powell returned her ruling that O.J. Simpson be bound over for trial, for two counts of first-degree murder. The formal arraignment was scheduled for July 22, Just as he ’d spent Father ’s Day in jail, he would spend his forty-seventh birthday there as well.

  The sudden prominence of Mark Fuhrman in the preliminary hearing rang all of Bill Pavelic ’s alarm bells. Prior to that, we ’d barely been aware of Fuhrman ’s involvement in the case, let alone that he was a key—if not the key—police detective in the investigation, at least in the all-important first hours. In the early reports provided to us by the prosecution, Mark Fuhrman ’s name never appeared at all: He wasn ’t in the arrest reports filed on O.J. and A.C.; the property reports didn ’t mention him; the coroner ’s report didn ’t mention him; the June 1, follow-up report didn ’t mention him; the murder reports didn ’t mention him; the June 1, and June 2, search warrants and affidavits didn ’t mention him. Furthermore, nowhere was it stated, in any L.A.P.D. report, that Fuhrman was the one who discovered the glove at each scene.

  “Why are they shielding him?” Bill wondered. He had a nodding acquaintance with Fuhrman; they ’d both once moonlighted for Johnny Carson. In addition, we had reports that Fuhrman was involved in a lawsuit, in something called an “officer-involved shooting” case.

  Months before jury selection had begun and soon after Mark Fuhrman had testified in the televised preliminary hearing, Bill Pavelic reported that he was in communication with an attorney named Robert Deutsch, whose client Joseph J. Britton was suing the City of Los Angeles for excessive use of force. In the fall 0f 1993, Britton was apprehended while fleeing from a robbery which he ’d committed. Mark Fuhrman had been one of the police officers involved, and he had reportedly fired ten rounds at Britton, both as he was falling and after he was down on the ground. Britton took five bullets, and his injuries were quite serious. Fuhrman ’s personnel records were included in the records Deutsch had compiled in the suit, which was eventually settled by the city for $100,000.

  As a consultant to Deutsch, Bill had done what he calls a “biopsy” of the case, reconstructing the time line in conjunction with the police logs and Britton ’s testimony. He came to a strong conclusion that the knife Britton had dropped while running from the police had later been planted near his body in order to justify the shooting.

  After Fuhrman ’s televised session at the preliminary, we started receiving phone calls on both the 800-number line and the office lines, from attorneys who ’d had dealings with Fuhrman, from anonymous police personnel, and from anonymous people who had known him. Everybody had a Mark Fuhrman story.

  Bonnie passed these messages on to Bill; Bill checked out the ones that he could. In the meantime, Gerry Uelmen and I immediately prepared a motion to obtain
Fuhrman ’s police-department personnel records, certain of which were already part of the lawsuit against him.

  The information we received on Fuhrman was deeply troubling. In the early eighties, in an attempt to get a disability-related early retirement with full benefits from the police department, he underwent a battery of physical and psychological tests in order to establish his self-described inability to do the job anymore because of his hatred for the people he had to deal with, in particular Mexicans and blacks. In a process that went on for more than two years, and included a lawsuit that Fuhrman filed because he wasn ’t granted the retirement, various medical specialists described him as “narcissistic, self-indulgent, emotionally unstable” with a “history of depression, tension, and stomach aches” and a great rage “with the public and the city.”

  By his own words, Fuhrman acknowledged his anger, as well as his propensity for violence. In his years in gang-ridden East Los Angeles, he said, he routinely put suspects in the hospital with “broken hands, faces, arms, and knees.” After he was transferred to the downtown Central division, he had to deal with “more slimes and assholes.” If anyone resisted arrest, he said, “they went back unconscious.” His three rules when dealing with a crime situation were quoted as being, “You don ’t see, you don ’t remember, it didn ’t happen.” The L.A.P.D. was fully aware of his negative behavior toward minorities and women and had “counseled” him on its inappropriateness. Months later, we heard that one police officer had even kept a personal log of “Fuhrman incidents” but had destroyed it when our investigation became known.

  The physicians who examined him were not unanimous, however, on what Fuhrman ’s fate should be. “There is some suggestion here that the patient is trying to feign the presence of severe psychopathology,” said one. Another wrote, “This suggests a person who expects immediate attention and pity.” Yet another said, “This man is no longer suited for police work.”