I argued that the photographs were such that anyone seeing them would have such a visceral reaction, such rage, as to seriously prejudice the defendant. It simply wasn ’t necessary to introduce them at all; Golden could testify to cause of death, we would certainly stipulate to that, and the jury didn ’t need to see these photos to establish that information.
The defense lost that round; at the end of May, Ito ruled that the jury could see the photographs. Later, of course, it became obvious that Dr. Golden was a Trojan horse to bring the autopsy photos into the trial. Dr. Golden was not asked to testify by the prosecution.
On May 10, I took a break from court, and went down the hall to see Michael Baden, who was in town with Barbara Wolf testifying as a key prosecution witness in another criminal case.
For nearly a year, I ’d been the only lawyer who sat in on each and every hearing and session in the courtroom. I had become a desk lawyer, captive at the end of the table with my computer, listening as O.J. commented on every piece of evidence, hearing Cochran respond with “We ’ll look into that” or “Carl ’s on top of it.” I ’d sprained my back sparring with Grant the weekend before and couldn ’t find a comfortable place in my chair. Taking a walk down the hall for a strategy session with Baden and Wolf seemed like a good idea.
After Michael had completed his testimony in the other case, he and I and Barbara went into another room to watch the live television feed of the trial. Since the trial had begun, I hadn ’t seen any of the television coverage; I had deliberately avoided anything except the evening news recap. Seeing the way the camera editorialized what was taking place in that courtroom, especially the actions and reactions of the lawyers, was a revelation.
There was an alert Peter Neufeld, looking intently at the witness he was examining. Scheck, who had been the DNA point man for days, looked less focused, his clothes disheveled, his hair badly in need of a trim. Blasier was hunched over his computer, probably in-putting some esoteric data or creating graphics for the next day ’s use. Cochran was agitated and restless, slumped down in his chair. O.J., who had a tendency to throw his head back and look up at the ceiling when he was thinking, was, said Barbara Wolf, “looking scornful.”
“I needed to see this,” I said to my two friends. “I need to tell them about this, especially O.J. We ’ve forgotten the cameras, or gotten used to them. If we look like this to television viewers, we must look like this to the jury.”
The rule of the court is that when an objection is made, the brief legal explanation—it assumes a fact not in evidence, is hearsay, irrelevant, or whatever it may be—is made, and any detailed or further explanation is given at a sidebar conference. Otherwise the jury hears remarks or observations from either prosecution or defense that will poison their ability to deliberate fairly. In this case, although there was certainly no shortage of sidebars, Ito had warned lawyers for both sides numerous times about “speaking objections” in which we continued to argue or explain our reasons for objections in full hearing of the jury.
In mid-May, Judge Ito sanctioned Peter Neufeld and Woody Clarke each $250 for specifying their objections during Cotton ’s testimony within the jury ’s hearing. He ordered them not to bill their clients for the charges.
“Thank you, Your Honor,” said O.J.
“You ’re welcome, Mr. Simpson,” said Ito. Later, we heard that Clarke ’s colleagues in San Diego took up a collection to pay his fine.
As the first anniversary of Nicole ’s death approached, O.J. became angry when he saw his kids on the cover of Life magazine, and he called Lou Brown to tell him so. He thought the Browns were being naive about the press ’s intentions. “They don ’t care about you,” he told Lou. “They care about themselves, about how much money they make off this stuff.”
He wanted his kids protected, out of the spotlight, so that they ’d be able to make their own choices. “I taught Sydney to play chess when she was only seven,” he said proudly. “She ’s going to be able to be anything she wants.”
In mid-May, the jurors sent Judge Ito a letter, signed by a majority, asking to extend the week—full days on Friday and half days on Saturday. They were willing to forego the outings Ito had been arranging for them in order to put in more court time. Cochran was against it, I was mixed, and O.J. was strongly in favor. The judge said he couldn ’t open the courtroom on Saturdays, but extending on Friday afternoons was a realistic possibility.
Marcia Clark and Johnnie were back to being flirtatiously friendly with each other; O.J. dogged Johnnie about it, especially when it happened in front of the jury. “Don ’t do that,” O.J. repeatedly said to Cochran.
On the way into court on May 18, a reporter called out to me, “What will O.J. say to his kids on Nicole ’s birthday?” She would ’ve been thirty-six. I told O.J. later that it had to be the stupidest question I ’d heard since this all started.
“What do they think, that I ’ve got this thing scripted?” he asked. “She wouldn ’t have hung around for a party with her family, she didn ’t like that stuff,” he said. “We would ’ve taken the kids and our friends and gone to Cabo.”
Someone sent cans of black spray to Cochran and me, for the bald spots on our heads. The gift giver said that he was being blinded by the reflection of my pate on television. I was impressed with the gesture—the guy actually went to the trouble of having the spray cans personalized with our names.
When Barry Scheck cross-examined Gary Sims, the senior criminologist for the California Department of Justice, he used Sims ’s testimony for defense purposes, as an example of excellent procedure, in contrast to that of the L.A.P.D. crime lab. Sims couldn ’t say for sure whether the socks found in O.J. ’s bedroom were tampered with before the technicians in the lab got them. Sims also testified that there was no way for him to say for sure that the police did not tamper with the crime scene.
The prosecutors clearly weren ’t happy with Sims. He was straightforward, giving scientific interpretations as clearly as he could, and doing his best to avoid showing favoritism to either side. Rock Harmon had done the direct on Sims, and he objected constantly during Scheck ’s cross. If Ito didn ’t sustain Harmon ’s objections, Harmon would remain standing until Ito would finally say “Sit down, Mr. Harmon.”
As careful as the court had been with screening newspapers, the jurors had seen in USA Today that Harmon had cracked a joke about the DNA analysis of O.J. ’s blood excluding everyone except the San Antonio Spurs. “Not exactly a world-class comedian,” grumbled O.J.
“Harmon bought new clothes to be on TV,” he speculated. He was always giving Johnnie and me a bad time about our ties. He preferred a more conservative style, saying that it was more businesslike. When O.J. first went to USC, John DeLorean hired him as a product spokesman for Chevrolet. The Chevy people took O.J. to Carroll ’s, a conservative clothing store in Beverly Hills, stressing to him that this was how a businessman should dress. “People should say ‘you look good, ’ “ he said, “not ‘that ’s a great suit. ’ “
During Scheck ’s cross of Sims, the witness couldn ’t immediately locate one piece of information in his notes. Scheck had the data in front of him. Scheck said, “Well, would you agree if I told you that…?” and then recited the data. Responded Sims, “Mr. Scheck, I ’ll take your word for anything.”
Both men were clear speakers; they knew this was a tough audience. But the testimony was dense, confusing, and the jurors obviously bored. Scheck raised the possibility that someone not identified in the case left blood at the scene, but there was no way of knowing if the jury picked up on this. Two days later he was able to get into evidence that the tissue and isoenzyme found under Nicole ’s fingernail was type B; her blood was type AB.
Scheck was impressive, both in his knowledge of the science and the dogged way he cross-examined a witness until he got what he wanted. But he was constantly worried that he was falling short, that the jury wasn ’t getting it. “I don ’t like to do anything less than my b
est,” he said. “And I ’m not sure this is my best.”
Chapter Eighteen
As was our custom, Johnnie and I, along with Bob Kardashian and other members of the defense team, often met with O.J. for a few minutes before he was brought out of the lockup in the morning. While we were there on May 24, Guy Magnara, the sheriff ’s bailiff, came in and announced forebodingly, “The judge wants to see everybody in chambers.”
“What is it?” I asked.
“More jury problems,” he said.
Johnnie and I looked at each other in alarm. When we went into the judge ’s chambers, it was a stone-faced Judge Ito who greeted us.
“I ’ve just received this letter,” he said.
It was a handwritten, five-page letter on a secretarial steno pad, sent anonymously by someone who described him- or herself as a twenty-year-old German receptionist for a book agent. The letter-writer had seen Judge Ito on his television interview with Tritia Toyota and been deeply moved by the story of the judge and his family being interned in the camps during World War II. This person ’s family had suffered too—we assumed in German concentration camps—and because of this shared connection he felt with Ito, he believed that he had an obligation to bring a certain matter to the judge ’s attention.
This person claimed to have it on very good authority that a female juror, who had once been an alternate, was negotiating for a book. The juror ’s husband had been doing the negotiating, an agent had met with both of them at the Intercontinental Hotel (thus correctly identifying the location where the jury was sequestered), and the book even had a title: Standing Alone: A Verdict for Nicole. The letter-writer provided other details that only someone with firsthand knowledge of the case and the jury ’s travails this far could have known.
In the presence of the prosecution and defense lawyers, Judge Ito spoke with the jurors one by one. After a couple of days of questioning, he narrowed things down—after all, we knew from the start we were looking for a married woman— until he finally felt certain that the subject of the anonymous letter was juror Francine Florio-Bunten.
In spite of adamant denials that she was putting together a publishing deal, Florio-Bunten was removed from the jury.
Florio-Bunten ’s consistent denials in the months since she was excused, coupled with rumors that there was a concerted effort to get her off the jury, have resulted in continuing speculation that someone affiliated with the defense was actually responsible for the anonymous letter that kicked off Judge Ito ’s investigation. Subsequent to the verdict, she gave interviews in which she said she would have voted guilty and hung the jury. Whether or not that actually would have happened, there ’s no way of knowing.
Soon after Florio-Bunten ’s departure, Ito also excused Willie Cravin, the juror who had caused some conflict as king of the video remote control, and Farron Chavarria. The panel that remained, made up of nine blacks, one Hispanic, and two whites, would be the jury that would ultimately deliver the verdict.
Collin Yamauchi, a forensic scientist with the L.A.P.D. crime lab, did the initial collection and testing of the reference blood samples of O.J., Nicole Brown, and Ron Goldman. Young, inadequately trained, and very defensive, Yamauchi proved a poor follow-up to witnesses like Sims and Cotton. Barry Scheck ’s cross-examination of him came perilously close (for the prosecution) to opening up a very nice door for the defense.
While under direct examination by Rock Harmon, Yamauchi had to refer to his notes for his answers. The defense was given the opportunity to examine the notes, and Scheck quickly spotted the words “alibi—Chicago.”
When Scheck asked Yamauchi what that referred to, he answered, “Yes, I heard on the news that he ’s got an airtight alibi, he ’s in Chicago, and you know, it ’s his ex-wife and this and that, and he ’s probably not related to this thing.”
Ito immediately barked “Sidebar!”
Section 356 of the California evidence code says that if one side introduces material contained in a statement, the other side may seek to have the entire statement placed in evidence so that nothing is presented out of context. What Yamauchi had done was open the door to allowing O.J. ’s first interview with the police—and the audiotape of that interview—to be introduced to the jury, without subjecting O.J. to cross-examination.
California law allows statements of a defendant to be introduced only if the prosecution chooses to introduce them. In this instance, we believed O.J. ’s statement would be beneficial to his case; evidently the prosecution agreed, since they ’d fought long and hard to keep it out. Now we jumped on the opportunity, and Johnnie immediately demanded that the tape be admitted into evidence.
“But it only goes to Yamauchi ’s state of mind!” Marcia Clark argued heatedly, insisting that it was not the alibi itself, or O.J. ’s statement about having an alibi, that Yamauchi was referring to.
Judge Ito responded that it was more complicated than that, that Yamauchi, a prosecution witness, had actually raised the existence of an alibi in front of the jury.
Clark exploded, with angry and harsh language aimed directly at Ito. It was my belief that if any of the defense team had used that tone (and decibel level), we would ’ve been strongly sanctioned.
However, as I suspected would happen, Judge Ito found that the jury hadn ’t heard enough from Yamauchi that would mandate the introduction of O.J. ’s statement, and he ruled that it couldn ’t be introduced.
In an interview in the Sunday, June 4, issue of the Los Angeles Times, Chris Darden said, “The case has shaken my faith in the system.… The intense scrutiny of our personal lives is unfair. I don ’t know if I ever want to try another case… or practice law again.”
When O.J. heard that Judge Ito was going to allow the autopsy photos into evidence as part of Dr. Lakshmanan ’s testimony, he grew very morose and depressed. He had never seen the pictures, nor had he ever let us describe them to him. Now he knew he ’d have to sit in court and listen to the descriptions. Judge Ito called us in and told us that the deputies were very concerned at O.J. ’s appearance and behavior, so they ’d put him on suicide watch again.
Hearing of the deputies ’ concern, O.J. turned to Guy Magnara and said, “I ’m not suicidal! The last time they did this, they woke me up every fifteen minutes around the clock. They turned the lights on and off all night. If I look awful, it ’s because these guys aren ’t letting me get any sleep!”
Over the Memorial Day weekend, I had worked on strategy with Michael Baden and Barbara Wolf, who had come into town to help me prepare for cross-examining the coroner. We read his reports repeatedly and carefully examined the autopsy pictures. “Look for the unexpected,” Michael instructed me. “Sometimes the more important things are the hardest ones to find.” It reminded me of Sherlock Holmes telling Dr. Watson, “I don ’t know what I ’m looking for, but when I find it, I ’ll let you know.”
We ’d learned that the prosecution had decided to sacrifice Dr. Golden; he would not be testifying. Dr. Lakshmanan, the chief medical examiner, would testify instead. Brian Kelberg would be doing the direct examination. I would be doing the cross-examination.
I was disappointed that I wasn ’t going to get another chance at Golden. An analysis of Golden ’s errors and the testimony he ’d given under my cross-examination at the preliminary hearing had led Michael Baden to believe there was a possibility that we ’d be able to get Golden to state that the time of death was shortly after eleven o ’clock on the night of June 12. Lakshmanan, however, couldn ’t be counted on for that.
Lakshmanan is a highly educated skilled professional who prided himself on being board-certified in several different areas of medicine, including geriatrics, infectious diseases, and internal medicine. Michael Baden told me that certification in each area required at least three years of specialized study. “If Lakshmanan had spent those years studying pathology instead,” he said, “he ’d be a much better medical examiner.”
Since we didn ’t have to go after the h
apless Dr. Golden for his errors, the defense was prepared to stipulate to the cause of death. But we knew the prosecution wanted something more dramatic. They were going to showcase Lakshmanan in order to get a crime-scene narrative and the autopsy photos in front of the jury.
Brian Kelberg got Lakshmanan to perform a physical demonstration illustrating the prosecution ’s hypothesis of how the two murders might have been committed.
“Now, Doctor,” Kelberg would say, “could a six-foot two-inch, male African-American have caused these injuries if he was standing behind an individual?” Then he would proceed to outline a scenario that fit solely within the assumption that O.J. Simpson was the only possible killer.
I objected. Kelberg ’s scenario, I said, was assuming facts not in evidence. Ito overruled the objection.
Lakshmanan then answered, “Yes, this is consistent with—”
Interrupting, I objected again. What did “consistent with” mean? As Michael Baden would later say, Kelberg ’s scenario could also be consistent with a five-foot midget standing on a ladder. Ito overruled me once more.
At sidebar, I reminded the judge that whenever Scheck had tried to get “hypotheticals” in, Ito sustained the prosecution ’s objections, which were the same as mine were now. Why couldn ’t my objections be sustained as well?
“I didn ’t sustain all their objections,” Ito answered.
“You sustained most of them, Your Honor,” I said.
“Well, I ’m not sustaining yours,” he said.
The jury reaction to the photos was reported as being very dramatic, but I noticed something the reporters perhaps did not. When the photos of Nicole were introduced, many individuals were clearly disturbed and saddened. But when Ron Goldman ’s photos were shown, the level of emotional reaction went sharply higher. One gentleman took his glasses off and began to cry; two of the women had tears running down their cheeks.
The Search for Justice Page 30