In addition to the information we ’d gathered on Mark Fuhrman ’s racial attitudes, we had also been contacted by a woman named Kathleen Bell. After talking to Bill Pavelic, Bell, a white woman, ultimately filed an affidavit with the court that reported a casual conversation she ’d had with Fuhrman in the mid-eighties. He ’d told her that in his capacity as a policeman, he frequently pulled over cars driven by black men, for no particular legal reason, and he especially did so when he saw black men with white women. Mark Fuhrman had met Nicole in the mid-1980s, when he was the responding officer on a call Nicole had made initially to the Westec security service. In that incident, she reported that O.J. had shattered a car windshield with a baseball bat. What, then, must have gone through his head when Fuhrman arrived at Bundy and realized who the murdered woman was?
When we moved to obtain Fuhrman ’s records, our request had included not just his personnel records but his Marine Corps records as well. This had been Lee Bailey ’s idea; if there was a pattern of Fuhrman ’s behavior that went back further than the L.A.P.D., he said, we ought to know about it. Although Ito did give us access to the police records, he denied the military records, stating that there was nothing in them relevant to the Simpson case. Robert Tourtelot, Fuhrman ’s attorney, called us “desperate snooping defense attorneys” whose request for the records was “replete with factually unsupported accusations of racism.”
“This is not a fishing expedition,” argued Johnnie. “This officer harbors animosity against African-Americans, especially African-Americans married to Caucasians.”
Once the press learned of the defense ’s interest in Fuhrman ’s records, they were all over us for making race an important issue in the trial.
“Race is not the issue here,” I responded for what seemed like the millionth time. “Credibility is the issue. And the documentation of Fuhrman ’s attitudes toward black men—and possibly toward this black man in particular—goes directly to his credibility as a witness, and as an investigating police officer in this case.”
Privately, Cochran told me I was naive in believing that race wasn ’t an issue.
“I never said it wasn ’t an issue,” I argued. “I said it wasn ’t the issue, and at any rate it shouldn ’t be part of this case. A defense built on race will never help us.”
“Never say never, Bob,” he replied.
In late August, a column published in both the New York Times and the Los Angeles Times stated the following: “Unlike clinical laboratories which perform tests for hospitals and doctors ’ offices, the nation ’s crime laboratories are exempt from regulation and external review. There are no minimum certification requirements for lab personnel.” Written by Paul Giannelli, a law professor at Case Western Reserve University, the piece cited the case of one serologist who had falsified “test results in hundreds of cases Since 1979,… Defendants who have since been exonerated were sentenced to long prison terms on his testimony…. For more than a decade, he worked closely with prosecutors and the police and apparently tailored his findings to conform with their theories of the cases.” Proficiency testing for crime lab personnel has been voluntary Since 1984, reported Giannelli, but the results of that testing haven ’t been made available. “Many people assume that the accused will have the opportunity to challenge expert witnesses who present faulty evidence,” he wrote. “In fact, 80% of defendants can ’t afford to hire a lawyer, much less pay expert witnesses.”
The information came as no surprise to Barry Scheck and Peter Neufeld. “Bad science puts good people away all the time,” Barry said.
At the time the column was published, we had been assured by the prosecution that all the blood samples for DNA testing had been sent to the Cellmark laboratory in Maryland. However, we discovered that a small portion, two drops, had been retained by the police department, ostensibly so that the prosecution could submit it at a later date to a second laboratory for a second set of diagnostic tests—because, Peter Neufeld suggested, some of the sample material had deteriorated to such a degree that it was no longer fit for testing. The prosecution had originally told us that there wasn ’t enough sample material to share with the defense, yet evidently there was enough for the police to retain for “backup” testing. In a pre-trial hearing called to resolve pending DNA and discovery matters, Marcia Clark stated adamantly that she wasn ’t aware that material had been retained.
“It seems very bizarre to me that the lead prosecutor in the case does not communicate with the laboratory charged with handling essential evidence in the case,” I said.
Dean Uelmen then accused the prosecution of playing the old shell game. “What we ’re dealing with is an attitude problem,” he said. “The attitude is they own the evidence, and when they ’re through with it, we can have whatever scraps are left over.”
“Hysterical proclamations and hypocritical ramblings,” was Clark ’s response.
In late August, Uelmen, Scheck, and Neufeld laboriously argued that the collection and subsequent handling of the blood samples had been compromised, possibly even contaminated, by the inefficiency of the police crime lab personnel. To support this argument, the pre-trial information they managed to elicit—from such witnesses as criminalist Dennis Fung, Gary Sims, the DNA specialist and criminologist with the California Justice Department, and crime lab assistant director Michelle Kestler—was so minute and technical (and, we nonspecialists later had to admit, tedious) that Judge Ito grew irritated with the pace, snapping at Neufeld three separate times in an effort to speed up the questioning. “Move on to something that has to do with the size of the samples!” he said. Later Neufeld turned to me, saying, “Only I could come out from New York and immediately put everyone on this case to sleep.”
The second day of the hearings, I joked that the scalpers were losing money. Visitors were walking out of court, three reporters in the front row were dozing, and O.J. was struggling to keep his eyes open, too. “This is cruel and unusual punishment,” he joked in a stage whisper. “Any more of this and I ’ll wish I had killed myself.”
However, the scientific evidence was as crucial as it was boring. It allowed us to learn how bad the L.A.P.D. criminal lab personnel had been in the collection and preservation of the blood evidence—which later allowed us to challenge the evidence itself.
Nevertheless the scientific testimony threatened to put us all to sleep—until suddenly I heard an odd piece of information: that when O.J. ’s blood sample was drawn at the police department a little after 2:00 P.M. on June 13, Detective Vannatter “took it back to Rockingham and at 5:20 P.M. he gave it to Dennis Fung.” Wait just a minute, I thought. What ’s this detective doing walking around for what sounded like three hours or more with a suspect ’s blood sample in his pocket? The blood was drawn at the police department. Why didn ’t it go directly to the evidence unit or the crime lab just three minutes away?
On August 26, Judge Ito finally ruled that the prosecution was not obliged to share blood samples with the defense. Nor did he find significant fault in their dealings with us. Ito said that the prosecutor ’s handling of blood evidence was “a picture of confusion, miscommunication, and noncommunication between the prosecutors, the attorneys, and the Los Angeles Police Department. Such conduct, while less than exemplary, does not rise to the level of bad faith or misconduct.”
O.J. was irate about an August cover story in Newsweek on his alleged “dual life.” There were allegations of drug use and orgies throughout. They even showed a picture of him alone, watching a white stripper, but they cropped it to give it a more negative inference. “It was my birthday party!” he stormed. “Nicole threw the party, she hired the stripper, and there were 250 other people there!”
There was also a somewhat disparaging reference to his beloved golf game, and to his membership in a predominantly white country club. “I thought it was supposed to be about progress,” O.J. said. “It ’s like I ’m not even supposed to be playing golf, like golf is a ‘whites only ’ spor
t. I thought being one of the first blacks to get in someplace meant progress, meant equality. I thought breaking color barriers was a good thing. I remember when Sidney Poitier was the first black member at Hillcrest, and Gene Washington got into the L.A. Country Club. It was a big, big deal. Like Jackie Robinson in baseball.”
He was essentially taken to task for not contributing to black causes, yet I knew for a fact that he was a longtime major contributor to two charities. His habit of keeping this information private was now working against him. And what really made him angry was the not-so-veiled criticism of the way he spoke—the inference that by working to improve himself, he ’d ended up “talking white.”
“Do people get on Julian Bond or Bryant Gumbel for the way they speak? Bob, did you know that Sir Laurence Olivier kept going to a speech coach way into his eighties, just to keep improving his diction? It ’s like I ’m too black for half these people, too white for the other half.”
Chapter Ten
As the September 19 date for the trial approached, the competition among the prime-time TV newsmagazine anchors to book Simpson case guests began to resemble the NFL draft. “So-and-so ’s got the Brown parents!” “So-and-so ’s got the Brown sisters!” “So-and-so ’s got Arnelle and Jason!” Every day we were receiving phone calls from various network producers who were updating the O.J. sweepstakes, trying to “get” me.
I was heeding Ito ’s order, as well as my own vow, not to give any interviews until the trial was over, but that didn ’t mean that I couldn ’t interview them while they were trying to interview me. As a result, I had some fascinating conversations with a number of respected television reporters, men and women whose work I had long admired or recently come to know through our ever-expanding video archive collection.
Television can be a seductive medium, and the people in it are skilled persuaders. When someone you ’ve seen on TV calls and asks you for an interview, you think it ’s a pretty important day. When ten nationally recognized journalists personally call you at home, you ’re now completely convinced that not only is it an important day, but that you are the very center of that importance. They never state outright that they want to know something; rather, they charmingly suggest that it ’s vitally important that “your views should be told.”
The topper came the night I met with Connie Chung and her producer for drinks at her hotel. Clearly, what she wanted was an interview with O.J. or me. Connie is a charming, elegant, and quite funny woman, and it was a thoroughly enjoyable evening. There was some talk about the law in general and some observations about the Simpson case—the issues that would be addressed at trial, the way it was being covered in the news. I was as curious about how these people did their business as they were about how I did mine. I was fascinated by the powerful effect they had on our culture, and even more fascinated by the way they continued to work the O.J. story.
At the end of the evening, the three of us said our good-nights, with hugs all around. A few minutes after I had left the hotel I realized I had left my cell phone behind. I went back inside and called Connie from the lobby to ask if she ’d picked it up. “I ’m so glad you called, Bob,” she said cheerfully, and then delivered the best line I ’d heard since the case began: “I just spoke to my husband. He gave me permission to sleep with you—in exchange for an exclusive with either you or O.J.”
Laughing at the joke, I declined what I called her “very kind offer.” As I drove home, I thought to myself, if this had been the real thing, a good negotiator would have asked which would ’ve come first, the interview or the sexual favors.
Because it had been our decision not to waive any time, we knew that the trial would begin before the prosecution had even commenced testing the majority of the DNA evidence—which was unprecedented. When we received word in late summer that the prosecution ’s preliminary DNA testing on two of the blood spots at Bundy had come up positive for O.J. ’s blood group, I knew that the experts on our team would have to do as I had suspected early on: challenge the methodology and competency of the L.A.P.D. lab technicians.
When attorneys wish to present scientific or forensic information as evidence, often a hearing must be held before the judge and outside the presence of the jury. In this procedure, called a Kelly-Frye hearing, lawyers on both sides argue for and against the acceptability of particular evidence—that is, the degree to which it is accepted within the scientific community and the legal precedents that may exist for its use in trial. The judge weighs the arguments, rules on the admissibility of the evidence, and then sets the parameters within which the evidence can be presented to a jury. In the Simpson case, we anticipated that the Kelly-Frye hearing on DNA evidence might be held in early September. However, on the last day of August, Marcia Clark announced that the prosecution wouldn ’t be ready for the hearing until some time after jury selection was completed, which at that point we figured would take at least a month.
When he heard this, O.J. realized that the trial itself probably wouldn ’t begin much before the holiday season, and he broke down and cried at having to once again adjust his dream of being home with his kids. Almost everyone on the defense team had at one time or another represented clients who had waited a year or more before their trials were held. Long delays, due to factors such as crowded court schedules, pretrial hearings, and frequent continuances, were common. We knew it wouldn ’t help matters to tell our war stories to O.J. We could only comfort him, and counsel him to try to be patient with the unwieldy process. (Ultimately, the defense team would decide to waive the Kelly-Frye, and agreed not to challenge the admissibility of the prosecution ’s DNA evidence.)
We had also been waiting on the prosecution ’s decision on whether or not to seek the death penalty. I believed that they would not. The defense had prepared a letter to go on record in the D.A. ’s office, basically to the effect that since our client was innocent, we would take no position nor make any recommendation regarding his sentencing.
This was a major strategic decision. A death penalty trial would require a special voir dire on what ’s called a “death qualified jury,” that is, a jury who could vote to impose a death sentence. This type of jury is obviously pro-prosecution; anti–death penalty jurors are excluded. However, in the guilt phase of a trial, a death penalty jury generally requires a higher standard of proof—which would favor the defense.
On September 9, the district attorney ’s office announced that the People were not going to seek the death penalty but would instead ask for life without parole. I wasn ’t surprised. No matter how solid the prosecution believed their case to be, I couldn ’t envision a scenario in which either Bill Hodgman or Marcia Clark would stand in front of a jury and ask them to return a verdict that would send O.J. Simpson to death row.
In September, we heard that the prosecutors had conducted a weekend-long mock trial in Phoenix, Arizona. Using their jury consultants and presenting the evidence they had to date, they selected seventeen local citizens as the jury. The mock jurors liked Bill Hodgman; they were less enthusiastic about Marcia Clark, claiming that her courtroom style was too aggressive. For my part, I felt that her style and obvious personal antagonism toward me would be favorable to us and off-putting to the jury, and I did what I could to elicit those responses from her at every opportunity. While she openly flirted with Johnnie during much of the trial, my presence almost always kicked off a hostile reaction.
The Arizona mock jurors were, however, quite clear about their verdict. As one “juror” told a local reporter, “The prosecution asked if there was just circumstantial evidence, DNA and this and that, could you find him guilty?” Evidently the jury ’s answer was no: They found O.J. not guilty.
We also heard that the prosecution wasn ’t going to put Dr. Irwin Golden back on the stand again for the trial. Reportedly, they had been looking for a medical examiner to testify as an expert witness in order to counter Golden ’s performance under my cross-examination in the preliminary. One candidate
, Dr. Boyd Stephens, the president-elect of the National Association of Medical Examiners, turned them down, as did others. Ultimately the prosecution would use Dr. Lakshmanan.
There was a lot of discussion about why the district attorney was going to try this case in downtown Los Angeles rather than in Santa Monica, which would have been the natural venue. The explanations were many and varied. One possibility was the need for both a high-security courtroom and extensive news facility.
A second possibility was that in the wake of the racial tension that was created by the Rodney King verdict and escalated during preparations for this trial, it might have been a political move on Gil Garcetti ’s part to try O.J. in an area where the jury pool would include more African-Americans than did Santa Monica.
My own thought was that Garcetti wanted close personal control over the case, and instant access to the press—which was permanently located right next door to his office.
Technically, the trial could have taken place anywhere in Los Angeles County, and we were prepared to present the defense ’s case in any courtroom Garcetti wanted, but we were pleased that it would be a downtown courtroom and a downtown jury. I heard from an old friend in the district attorney ’s office that there was great resentment there at the tremendous personnel and resources being devoted to this one case. “D.A.s are complaining that they can ’t get simple investigations done on other cases,” she said. “Everything but Simpson comes in very low on the priority list.”
Right after the Labor Day weekend, the prosecution filed a motion requesting that once the jury was selected, Judge Ito should sequester it. Initially, the defense didn ’t think that sequestration was a good idea, primarily because it presents significant hardship, especially to people who need the income from working at least part of every day, and thereby narrows the jury pool. Jo-Ellan Dimitrius also advised that sequestration can make some jurors become bonded with the bailiffs who care for their every need. Understandably, bonding with law enforcement creates a pro-prosecution jury. We also didn ’t think sequestration was necessary because we believed the jurors would follow the judge ’s instructions to not be swayed by outside influences. Put simply, we trusted them. Just before the trial began, however, events would persuade us to agree with the prosecution, and the jury was ultimately sequestered.
The Search for Justice Page 17