The Search for Justice

by Robert L Shapiro

  We were at the bench, and the court reporter needed to change the paper in her transcribing machine. “Don ’t let Marcia Clark talk,” she said. Ito responded: “Would that I could prevent it.”

  I was always interested in the mail that came to me via the courthouse. Often there were tips and information; just as often, I was fascinated and interested in what the “real” people were thinking, as opposed to the pundits and self-appointed experts. Throughout the summer, the letters to the defense team had been running about half in favor and half against. And then I opened a letter from Canada.

  A man identifying himself only as a “Canadian citizen” said it was obvious that I was the only person O.J. Simpson would listen to. It was my duty, therefore, to make him plead guilty immediately. If I did not do so and O.J. walked, the man would find us, follow us, and approach us with twelve sticks of dynamite attached to his body. Dying didn ’t matter to him, he said—he had terminal cancer anyway, and no heirs. And if the dynamite didn ’t work, the one hundred thousand dollars he had in the bank would be used to hire a hit man. Shaken, I gave the letter to the sheriff ’s deputies.

  Later that day, in an entirely unrelated matter, we heard that one of the deputies had been killed. At home and off-duty, he had gone to investigate a burglary in his own neighborhood and was shot. The news rocked all of us. The minutiae of a trial can sometimes distance you from the very reality that brings you there. You ’re in a courtroom, people in uniforms have guns, and the whole adversarial procedure is focused on crime—the people who commit it, and the people who try to prevent it. As in a morality play, the drama focuses on the good guys versus the bad guys. I am always jarred to realize that a courtroom is still an artificial, reconstructed reality. Every now and then the real pain of the streets intrudes.

  Shortly after this, Johnnie Cochran began to show up at the courthouse accompanied by young black men from the Nation of Islam, Reverend Louis Farrakhan ’s organization. They were his bodyguards, he said in response to my protests. I couldn ’t have been more dismayed. I didn ’t want them anywhere near this case or my client. Their presence sent the wrong message.

  Early on in our investigation, we had learned that there was a concentration of a chemical called EDTA found in some of the blood evidence from Bundy and the sock found at Rockingham. EDTA is a preservative used in reference samples of blood; that is, samples of blood taken from individuals to be used later for comparison with samples from the crime scene. As was customary, O.J. ’s blood reference sample in the lab had been treated with EDTA. If traces of EDTA were found in the blood evidence, that blood had either been confused with or planted as real evidence.

  Here the hubris of the prosecution surfaced in an ironic fashion. Their attorney Rock Harmon was so sure that there was no EDTA in this blood evidence that he issued a challenge. “If they ’re so interested, let ’s send this blood to the lab,” he said. “If EDTA is found on these items, then this is a case that shouldn ’t be prosecuted, and we ’ll dismiss it. If there ’s no EDTA present, then we ’ll know we ’re right, and the defendant should change his plea to guilty.”

  Samples were sent to the FBI lab; the reports came back positive for EDTA. The prosecution then tried to backtrack, arguing that EDTA is a naturally occurring substance present in everyone ’s blood, preserved or not. We countered with testimony that the amount of EDTA found on the sock and the back gate exceeded the amount one would normally expect to find. We wanted the jury to hear our basic question: Why was a blood preservative found where it seemed questionable?

  Our witness Frederic Rieders, a forensic toxicologist, acknowledged that his review confirmed the existence of EDTA preservative in the sock and on the back gate at Bundy. In answer to a challenge from Marcia Clark, he said, “If you hear hoofbeats, it ’s more likely to be horses, not zebras. So it ’s most likely that the source for EDTA in a blood sample is that it was EDTA blood to begin with.”

  Due to a scheduling conflict, Marcia Clark couldn ’t continue her cross until a few days later. When she got Rieders back on the stand, she ’d had some time to do further background checking and proceeded to relentlessly attack the witness on errors he ’d made in another case seven years prior to the O.J. trial.

  Ito grew very short-tempered with her line of questioning. “Let ’s wind this up,” he snapped. “Let ’s try the Simpson case sometime today. In fact, that ’s it for this witness, we ’re through.”

  I suspect the whole discussion, like much of the blood wars, was beyond anyone ’s comprehension, including the jury and many of the lawyers. But the general effect was to undermine the jury ’s perception of police procedure.

  In the middle of July, we informed Judge Ito of the existence and substance of Laura Hart McKinney ’s taped interviews with Mark Fuhrman. Based on the brief excerpts we ’d heard and the information we ’d given him, the judge agreed that they were material to the case and immediately issued a subpoena for their return to his jurisdiction.

  At the end of July, Johnnie Cochran went to North Carolina armed with the subpoena. There a local judge blocked our attempt to get McKinney ’s Fuhrman tapes, ruling that the tapes were only collateral, not material, to the question of O.J. ’s guilt, and therefore the defense had no right to them.

  It was a major setback for us. Shocked and frustrated by the ruling, Cochran announced our intention to appeal. At this point the news was out. From one end of the country to the other we heard the question: What is on those tapes?

  On August 7, the North Carolina appellate court overruled the lower court and ordered that the McKinney tapes be turned over to us.

  The prosecution team was now fully aware of the tapes, and what they reportedly contained. Now that we had obtained them through our own efforts, our money, and our fight with the North Carolina court system, Marcia Clark decided that they belonged to her. None of us among the defense team had heard the tapes in their entirety, and the prosecution hadn ’t heard them at all. And who “owned” them wouldn ’t keep them from being evidence in the case; they would have to be shared with the other side in discovery. So her move to claim them for the prosecution was, as far as I was concerned, an ineffective power play.

  To complicate matters further, Judge Ito himself was indirectly involved in the contents of the tapes. They contained material pertinent to Captain Margaret York, Ito ’s wife, involving confrontations Fuhrman had had with her. If this was true, it would contradict Captain York ’s earlier statements that she ’d had no dealings with Fuhrman—and that therefore there had been no need for Ito to remove himself from the case. Thus we faced yet another ironic encounter with the prosecution. The tapes that were our salvation were quite possibly also the potential source of a mistrial.

  Chapter Twenty-one

  I was looking forward to presenting Michael Baden ’s testimony on behalf of the defense. “There are great limitations on what medical examiners can do in our reconstructions,” he had said when he agreed to testify. “We can ’t, for example, go to an arson scene, examine the ashes of the deceased, and tell if that person had a mustache.” But there was solid information to be obtained, provided that you didn ’t have to contend with such factors as incomplete investigations, an incompetent laboratory staff, and a ten-hour delay while you waited for the coroner to arrive at the crime scene. By the same token, there are 1400 homicides in Los Angeles County each year, and no one had questioned the collection of blood evidence in the microscopic way that we had in this case.

  In August, Michael Baden testified that when he was at the L.A.P.D. crime lab two days after the murders and examined the socks that were removed from O.J. ’s home, neither he nor Dr. Wolf nor the L.A.P.D. lab ’s Michelle Kestler had seen blood on them.

  Dr. Baden ’s testimony was intended primarily to show that testimony delivered by the prosecutor ’s medical examiner went far beyond what can be learned from an autopsy examination. This was expecially true in the case of Dr. Lakshmanan, who had substituted
as a witness for Dr. Golden, the original coroner. For instance, when Dr. Lakshmanan described the attack on Ron Goldman as having been committed from behind, by a single assailant who was right-handed, of athletic build, with a height and weight similar to O.J. ’s, he was over-reaching what he had any ability to know with a reasonable degree of certainty.

  Baden also challenged the prosecution ’s contention that the attack on the two victims could ’ve been accomplished within one or two minutes. There had been a protracted struggle, as evidenced by Ron Goldman ’s hugely swollen right hand, which led Dr. Baden to believe he ’d hit his attacker quite hard, probably inflicting considerable damage. He explained that Goldman had died as the result of slow seeping of blood from veins in the neck, and that it would have taken at least five or ten minutes of blood loss in this manner for death to occur. He knew this, he said, because the wounds in the lungs had produced very little bleeding.

  On Kelberg ’s cross, he asked Dr. Baden what explanation O.J. had given for the cuts on his fingers when Baden first examined him at the Kardashian residence on June 17, 1994. Baden explained that Simpson had told him he first cut himself while searching for his cell phone in the Bronco in the dark on the night of June 12, and then cut himself more deeply on the broken glass in the Chicago hotel room, thus resolving prosecution allegations of alleged inconsistent statements by the defense about the cut fingers.

  Although Baden could not say with a reasonable degree of medical certainty how many killers there were, his opinion was that one person could not have murdered both Nicole and Ron without incurring significant injuries, as well as being drenched by a tremendous amount of the victims ’ blood. As we reminded the jury, our immediate physical examination of O.J. the day after the crimes, and the photographs taken at that examination, reflected no injuries from such a struggle.

  In mid-August, the battle in Judge Ito ’s chambers over who “owned” the Fuhrman tapes threatened to overshadow whatever trial proceedings were going on in the courtroom on any given day. Once the tapes arrived at Judge Ito ’s office, he decided that by rights they belonged to the defense. In a meeting with both sides, he gave them to Johnnie Cochran.

  At one point Marcia Clark said heatedly, “We will object to the playing of these tapes!” Barry Scheck shot back at her, “How can you object without even hearing them?” Marcia looked directly at him and snapped, “Shut up, Scheck.”

  Scheck turned red with anger, and something seemed to snap. Thereafter he was much less tolerant of Marcia ’s behavior. As a man of real moral principles, Scheck was appalled that the prosecutor was determined to protect her witness even if it could be proved he had perjured himself.

  In the portions of the tapes we ’d heard, Fuhrman was an equal-opportunity bigot, expressing the same poisonous hostility toward blacks, Hispanics, and women—including his former superior, Captain Margaret York. As the defense feared might happen, Marcia Clark cited a conflict of interest on Judge Ito ’s part and quickly moved to request that the judge recuse himself from the trial.

  It was clear that the prosecution had lost any desire to be fair about either evidence or this judge. It was bad enough that they had refused to call the coroner, Irwin Golden, to the stand because he had clearly bungled the autopsy. Now they were fuming because the judge was losing patience with their antics. There was an air of desperation in the prosecution ’s actions. Henry Lee had informed us that they were frantically shopping around the country for additional experts to try and rebut defense evidence. Now in Fuhrman ’s tapes they were faced with a potent weapon that would destroy a witness they had made the center of their case. They had been warned about Fuhrman and chosen to ignore those warnings. If this judge didn ’t go along with squelching the tapes, the prosecution would simply try to replace him with a judge who would.

  Both the prosecution and defense had been aware of the potential conflict posed by Captain York from day one. And both sides had agreed to take a waiver allowing Judge Ito to hear the case. The very reason for taking a waiver was to acknowledge potential problems down the line, since York was an important police official.

  Judge Ito was upset by the prosecution ’s bid to disqualify him. He saw no choice but to make some accommodation to their concerns, even though it raised the specter of a mistrial. In a session held outside the presence of the jury, he said, “I love my wife dearly, and I am wounded by criticism of her.” He was on the verge of tears, but continued: “I therefore recuse myself on the matter of the tapes themselves, and on the decision as to whether or not Margaret York will testify.”

  That wasn ’t enough for the prosecution, however. Clark wanted a complete recusal, and a new judge.

  The following day, because of the prosecution ’s actions, Judge Ito had packed up all the case materials in his office. He seemed resigned, indeed relieved, at the prospect of leaving the case and having another judge take over.

  However, a somewhat subdued Clark came back willing to accept Ito ’s offer of a partial recusal. I suspect the prosecution was sobered by the idea of a mistrial caused by their loose-cannon witness. Perhaps cooler heads had prevailed, or the district attorney had decided to take a chance with things as they were.

  Judge Ito would rule on the admissibility of the tapes; Superior Court Judge John Reid would rule regarding Margaret York. Within a brief two days, Reid decided that York ’s testimony would be of no benefit or import to this trial, and the matter was once again put to rest. Judge Ito would continue to preside as the sitting judge at the trial.

  In the lockup, O.J. passed the time by doing one of two things: playing solitaire, hand after hand, or reading a book. Every other day, it seemed, there was a new book that he ’d consumed and wanted to talk about.

  During the week he had court every day. The weekends, however, were particularly hard for him. Officials had reduced his telephone time, and they ’d even cut back on his “freeway” time, when he was allowed to walk back and forth in a narrow corridor without anyone to talk to. It was like being in solitary confinement. On one rare occasion, he blew up at the deputies. He was watching a ball game on the television just outside his cell, and at a crucial point they switched to a local program that featured former police chief Darryl Gates—talking about the O.J. Simpson case. It seemed that no matter where you were, you just couldn ’t get away from it.

  Barry Scheck ’s anger at Marcia Clark had been simmering ever since she ’d ordered him to shut up in Judge Ito ’s chambers. He couldn ’t believe that she would argue to keep the tapes out just to maintain the integrity of her witness, Mark Fuhrman. “The man lied under oath!” he said. “How can they suborn his perjury?”

  Scheck ’s DNA work in particular had always been focused on undoing the damage caused by prosecutors in falsely convicting innocent defendants. Scheck ’s indignation naturally spilled over whenever he felt prosecutors were being given unfair advantage in a courtroom they viewed as their home court, with a judge they thought should be a “home referee.” That kind of arrogance was a natural outcome of the Divine Right of the Prosecution. However, I believed that while Judge Ito was a pro-prosecution judge, he would be fair. I believed that not only would he allow us to impeach Fuhrman ’s testimony about the use of the n word, we would be given license to show broader police misconduct as well. Naturally the prosecutors were going to fight that as long as they could. They had no desire to see the Simpson trial turn into the Fuhrman trial.

  “He found the glove, he didn ’t plant it,” said Gil Garcetti. “He lied,” was the defense response. Meanwhile a restive jury was sitting in isolation outside the courtroom, while Ito decided if they ’d ever hear about Fuhrman ’s lies. As Ito had warned us, “I ’m very concerned about the durability of this jury.”

  Nevertheless, the very existence of the tapes gave us a tactical advantage we didn ’t have before. Our colleague Bob Blasier said that in each of his trials there had come a point when he would become convinced of the outcome. “I think this is it,
” he now told me. “I think we ’re going to win.”

  In late August, with the jury still waiting in sequestration, Gerald Uelmen presented his impassioned motion to admit the Fuhrman tapes, and Marcia Clark responded with an equally impassioned plea that they not be admitted.

  The argument began with the screenwriter who had recorded the tapes, Laura Hart McKinney. Clearly, she was not a witness who could be impeached on any level. Her credibility had nothing to do with whether the jury would or would not hear the tapes. All she was going to testify to was that she had recorded the tapes herself, and that it was Mark Fuhrman ’s voice on them. Her testimony would be given without the jury present, since it was relevant at this point only to the admissibility of the tapes. The prosecution, and in particular Chris Darden, nevertheless tried to make McKinney look like a liar.

  On August 29 the tapes were played in the absence of the jury, in order to decide what portion of them, if any, the jury would hear. For two emotional hours, the judge, the attorneys, and the courtroom observers sat and listened for the first time to this torrent of obscenities. Fuhrman used the word “nigger” more than forty times, and that wasn ’t the worst of it. As our original contact had reported, the tapes were a textbook for police brutality and witness intimidation, all stemming from hatred so profound it was like a physical, toxic presence in the courtroom. Fuhrman talked about beating people and breaking their bones, about pounding their faces into mush, about how “every word out of a nigger ’s mouth is a lie,” about how he ’d planted or manufactured evidence to “set niggers up.” He preened about his importance as a key witness in the Simpson case. “If I go down, they lose their case.… The glove is everything. Without the glove… bye-bye,” he said. It went on and on, becoming more and more obscene, until finally the only possible human response was nausea. Or a desire to crawl out of your skin.