The Search for Justice

by Robert L Shapiro

  Johnnie Cochran was uncharacteristically silent after the tapes had ended. So were the prosecutors. I was speechless. In twenty-five years as a lawyer, I ’d seen and heard a lot behind the scenes, but this was beyond anything in my imagination. These were the words of a deeply disturbed man. How could he have remained on the police force?

  Chris Darden looked agonized and shaken. When Gil Garcetti arrived for a private conversation with his courtroom team, Chris was obviously struggling to focus on his boss ’s words.

  The reporters in the room were silent as well, and completely stunned. Later I learned that Linda Deutsch, the AP reporter, glanced over at Dominick Dunne and they discovered they ’d written exactly the same words in their notebooks. It ’s over.

  Outside the courtroom, Ron Goldman ’s family expressed their outrage that the trial had, in their estimation, now become the Mark Fuhrman trial. I remembered turning around one day in court to see Ron ’s sister, Kim Goldman, watching me. “You son of a bitch,” she mouthed silently.

  On the last day of August, in a ten-page ruling, Judge Ito stated that the bulk of what we ’d all heard in the courtroom would not be admissible. He would, however, allow two incidents to be played to the jury. The two admissible references were relatively innocuous, and they would go only to substantiate Fuhrman ’s use of the n word. It seemed a crushing rejection for the defense. The jury would hear nothing from Fuhrman about beating up witnesses, nothing about planting evidence, nothing about his behavior, which to my mind was clearly pathological.

  On September 5, a quietly attentive jury heard the admissible portions of the tapes. On September 6, outside of their presence, Fuhrman was recalled to the stand, and he proceeded to exercise his right of protection against self-incrimination. It was his intention, he stated, not to respond to any and all questions, from either the prosecution or the defense. He would, instead, assert his Fifth Amendment privileges.

  Judge Ito ruled that he would not call Fuhrman back to the stand in front of the jury, saying that it would be incorrect to call a witness knowing in advance that he would answer with the Fifth. The defense was understandably disappointed in this decision. Would he tell the jury, then, that Fuhrman had taken the Fifth? Ito turned down this option as well. The defense then offered a possible compromise. We proposed that he inform the jurors that Mark Fuhrman was now “unavailable” for further testimony, and the jury could use that information to make their own evaluation of his credibility as a witness.

  Ito agreed to offer this softer instruction, but the prosecution immediately appealed it. When the State Appeals Court overruled Ito ’s decision, assistant district attorney Cheri Lewis was reported in the New York Times as being seen happily skipping out of Judge Ito ’s courtroom.

  Without the tapes, we still offered several witnesses to impeach Detective Fuhrman ’s credibility to this jury. One, Kathleen Bell, a white woman, reported Fuhrman having said that he routinely stopped couples if the man was black and the woman was white, even if he had to manufacture a reason to do so. “If I had my way, they ’d gather all niggers together and burn ‘em,” he told her.

  Another witness, Roderic Hodge, was once arrested by Fuhrman, who told him, “I told you I ’d get you, nigger.”

  Yet another, Natalie Singer, repeated what Fuhrman had once told her was his motto: “The only good nigger is a dead nigger.”

  And finally, Laura Hart McKinney informed the jury that she had recorded these tapes. She confirmed that Mark Fuhrman had used the n word forty-two times. Even more damaging, she said the limited portions that had been played for the jury were the least offensive, the least inflammatory, of the entire fifteen hours of tapes. I suspect that leaving the other forty references to the jurors ’ imaginations was a powerful “piece” of evidence in and of itself.

  Near the end of August, as the Fuhrman drama began to play itself out, the esteemed Dr. Henry Lee again came to testify for the defense. Barry Scheck conducted the direct examination, and an increasingly agitated Hank Goldberg did the cross.

  The focus of Dr. Lee ’s testimony was to point out the errors in the district attorney ’s crime-scene reconstruction. Among these was Lee ’s identification of what he thought might be a shoeprint on Ron Goldman ’s jeans—a print that came not from a Bruno Magli shoe, he said, but possibly a second killer. This finding was not a definitive one, he was quick to say, it was only a possibility that had been overlooked by the coroner.

  As Dr. Lee spoke, the jury members were as focused and attentive as I had seen them, even while he did some painstaking but tedious blood-spatter demonstrations. One pays extra attention to Henry Lee, and not just because of his careful if occasionally fractured English. The presentation, the precision and forthrightness of his manner, make him the epitome of the credible witness.

  He challenged the integrity of some of the blood spots removed from the crime scene and testified about the swatches of blood samples he was allowed to examine in the L.A.P.D. lab. They were damp, he said. If they had been properly stored, they should have been dry by the time he looked at them. “Only opinion I can give under these circumstances— something wrong,” he said.

  Like all good witnesses, he tried to reduce scientific testimony to a metaphor that the jury could readily grasp. He compared the lab contamination to finding a cockroach in a plate of spaghetti. “All you need is one… and you know it is contaminated.”

  When Hank Goldberg foolishly tried to challenge him, Dr. Lee again responded firmly, “Something is wrong.”

  On September 11, the defense had come to the end of its presentation. It was our decision to refuse to rest our case, however, until the California Supreme Court had ruled on Judge Ito ’s instruction to the jury regarding Fuhrman. Judge Ito, in an unprecedented move, then directed the prosecution to go ahead with its rebuttal case.

  With a concerned eye on the flagging jury, Ito gave firm instructions that court would begin at precisely 8:30. One morning Marcia Clark had not yet arrived at the appointed time. The jury was seated, and Ito was growing steadily more angry. When Marcia Clark arrived, a half-hour late, the judge fined the prosecution $250. She became a little sarcastic, and Ito upped the ante to $1000. Gil Garcetti reacted like an angry basketball coach whose star player had just been given an undeserved technical foul. “I ’ve told my people not to pay this fine. It ’s vindictive, petty, and not called for,” he fumed. At the end of the day, Ito brought the fine back down to $250. Garcetti still wasn ’t pacified. “Outrageous,” he said.

  As the trial moved to its close, I sweated through my thrice-weekly boxing sessions in my garage with Jason Rossi, the gifted athlete and trainer whose arduous twelve-round workouts had kept me going. At twenty-five, Jason often seemed to have more maturity than men twice his age. All during the trial, he had constantly arranged and rearranged his schedule to accommodate mine. On one level his coaching was directed toward honing a physical skill; he also taught me to focus completely on one thing, to the exclusion of all others. Contrary to what one might ’ve expected, I was rarely exhausted after a session with Jason. Instead, I was sharper, quicker. Whatever anger or frustration I had accumulated during the day was left in a sweaty puddle on the garage floor.

  Prompted by Judge Ito ’s impatience, the prosecution responded with a hurried series of rebuttal witnesses. On September 14, Gary Sims, the senior criminologist from the California Department of Justice, was called back to testify again that DNA tests of the blood found in the Bronco showed it to be Ron Goldman ’s. However, Barry Scheck ’s cross elicited evidence that the car, in spite of being a major piece of evidence, wasn ’t very well secured through the entire time it was in police custody.

  “From June 14 until August 26, there were no records kept as to who entered and left the tow yard,” Scheck said. “Unauthorized personnel were in and out of the car, in the seats and so forth. Would you consider that an appropriate way to preserve biological evidence?”

  Sims answered honestly. “No
, I don ’t think that should be allowed.” After the trial was over, the investigation into the police lab procedures became so intensive that Gerald Uelmen quipped, “They closed the barn door after the Bronco was out.”

  Another prosecution witness, L.A.P.D. nurse Thano Peratis, was admitted on videotape rather than in the flesh, despite our objections. Peratis, who had drawn O.J. ’s blood on June 13, 1994, had suffered a heart attack and was advised by his physician not to come to court. The prosecution wanted Peratis to appear on tape. We objected because we wouldn ’t be able to cross-examine him, or make our case that there was a percentage of O.J. ’s original blood sample unaccounted for.

  The issue of admitting the Peratis tape grew somewhat prolonged as Marcia Clark continued to spar with Peter Neufeld and Judge Ito about its importance. “You ’re warned in no uncertain terms,” Ito told her. He did agree, however, to admit a portion of the tape.

  When Hank Goldberg asked Peratis, on the video, how much blood he drew from O.J., the technician ’s answer was significantly different than it had been almost a year and a half earlier. “I came to the conclusion,” he said, “that I didn ’t draw eight ccs. I drew about six to six and a half ccs.” The defense team all agreed that Peratis ’s recovered memory was convenient indeed, especially since the district attorney thought it answered the question of the missing 1.5 ccs. Ironically, after the videotape was played to the jury, we decided that it probably did more harm than good for the prosecution. The fact that a witness was adjusting his story at this late date couldn ’t help but give rise to a jury ’s suspicions.

  Even at this tired time in the trial, there were a few light moments. For instance, there was a question about nighttime visibility at the Bundy crime scene. Judge Ito talked about phases of the moon affecting the available light. “Had it been waxing or waning?” he asked.

  Marcia Clark requested that he explain the two terms to the jury. Ito was irritated, and said, “Everybody knows the difference between a waxing and waning moon!” And then he polled the courtroom to see who knew the difference between waxing and waning. I didn ’t. For once, Marcia and I were in accord.

  On September 16, continuing the prosecution rebuttal, FBI shoe-imprint expert Bill Bodziak testified that Lee erred in identifying a “second footprint.” Of course, Dr. Lee had never “identified” a second footprint; rather, he said there was the possibility of an unidentified pattern imprint being that of a second shoe.

  Richard Rubin, the glove expert, was asked at his court reappearance by Bob Blasier, “Have you tried to be impartial?” When Rubin assured him that he had, Blasier read a postscript that had appeared at the end of an earlier letter to the prosecution from Rubin. “Maybe I can make it to the victory party,” he wrote.

  On September 18, the prosecution conditionally rested their case.

  As our final rebuttal, we called two FBI informants to squeal not on the mob, but on Detective Vannatter. Craig and Larry Fiato, two ex-mobsters, were FBI informants currently in the Bureau ’s witness protection program. They and their FBI “minder” had been in the L.A. courthouse some months previous on another murder case where the Fiato brothers were witnesses for the prosecution. While smoking cigarettes in a designated area on the eighteenth floor, they met and talked with Detective Philip Vannatter. They had also spoken with him at another time, in a hotel room where they were waiting before they gave their testimony.

  They were now prepared to come and testify that Vannatter had told them that on the morning of the murders the L.A.P.D. detectives “didn ’t go to Rockingham with the intention of saving people,” as he ’d testified, but rather because “the husband is always the suspect.” If Vannatter had said it, this admission would go toward impeaching all the early testimony about why Fuhrman went over the wall and why the police had been roaming the property and looking for evidence without a warrant. But there was a risk here: Our witnesses were not without a few blemishes of their own.

  Craig Fiato, also known as Tony the Animal, looked like what you might get if you put in a request to Central Casting for a wanna-be mobster. He sported an odd blond dye job on top of what was obviously dark hair, a dark goatee, and a large gold hoop earring in one ear. To season the mix even further, he testified to having had an intimate relationship with Denise Brown, Nicole ’s sister.

  Craig and his brother Larry testified in a blacked-out courtroom. The television camera had been turned off to protect the Fiatos ’ identities. It was a true Hollywood moment. Then later that night Craig Fiato appeared on Larry King ’s show, in full view of the camera. “To think, he could ’ve been my brother-in-law,” O.J. joked.

  Next, Detective Vannatter was recalled to the stand. I asked him, “Is there any doubt in your mind that O.J. Simpson was not a suspect when you first went to Rockingham?”

  As affable as he ’d been in his court appearances to date, Vannatter was clearly angry at being recalled. The fact that his return visit had been occasioned by two mob informants hadn ’t improved his disposition. “Mr. Simpson was no more a suspect at that point than you were, Mr. Shapiro,” Vannatter said, in another memorable overstatement.

  L.A.P.D. Commander Keith Bushey was then called by the prosecution to rebut the Fiatos ’ testimony. He testified that as commander of the L.A. West Bureau, it had been his decision to order the four detectives to Rockingham, in order to tell O.J. about the murders before he heard it on the news or from any other outside source. At sidebar when Cochran announced, “I ’m gonna do this witness myself,” and that he was going to be very tough on him, Ito gave him a look. The judge had admitted earlier that he was tired, that he was looking forward to the final arguments and not having to make any more rulings.

  “I wish more people would ask questions like Mr. Shapiro does,” the judge said. “That includes you, Mr. Cochran.”

  “I ’ll try, Your Honor,” said Cochran.

  By now, O.J. was as ready as anyone for it all to end. He told us that he ’d talked to his son Justin the day before on the phone. Justin had asked him, “Daddy, why doesn ’t Dita [Juditha Brown] bring you home to have dinner with us?”

  Judge Ito was going to present his instructions to the jury prior to the closing statements of the prosecution and defense. Gerry Uelmen and Brian Kelberg argued back and forth over what Ito would be able to instruct the jury.

  When the judge said that the jurors would be told they should disregard Ron Shipp ’s dream statement if they found either that it wasn ’t made, or that it was expressing “unconscious thoughts,” Kelberg objected. Ito asked if he was objecting because “Shipp happens.” Everybody in the courtroom laughed.

  The defense wanted Ito to instruct the jury that they would be allowed to reject all of Mark Fuhrman ’s testimony if they decided he testified falsely about anything. As to the specific murder charges the judge would instruct the jury to consider, Gerry Uelmen argued for a charge of first degree murder only. Kelberg asked for an instruction for both first and second degree (unpremeditated) murder, because he didn ’t want the jury faced with what he called an all-or-nothing Hobson ’s Choice of either sending O.J. to prison for life or setting him completely free.

  Ito denied our motion on Fuhrman and informed us he would instruct the jury that they could find for either first- or second-degree murder. He then called a recess for lunch and left the bench. As he did, Barry Scheck slammed his legal pad to the table. “How many ways can we get fucked?” he said under his breath, and walked out of the room. He later apologized to the judge, who had heard the remark. Seeing the end in sight, Ito said only, “We ’ll take it up later, Mr. Scheck.”

  On Friday, September 22, O.J. Simpson was given a chance to address the judge outside the presence of the jury. We had been in chambers, and the judge had indicated that since O.J. had decided not to testify in open court, he needed that waiver on the record.

  The defense indicated that O.J. wished to make a statement to the judge. When Judge Ito came out on the bench to hear that s
tatement, Marcia Clark pleaded with him. “Please, don ’t do this, Your Honor. I beg you, don ’t do this.”

  She believed that any statement by Simpson that was not subject to cross-examination was inappropriate. She suggested that it was being done deliberately by the defense in hopes that whatever he said would eventually leak to the jury, perhaps via conjugal or family visits.

  Ito overruled her objection and indicated that he was ready to hear the defendant ’s statement. O.J. rose to his feet and said, “As much as I would like to address some of the misrepresentations made about myself and Nicole concerning our life together, I am mindful of the mood and stamina of this jury. I have confidence—a lot more, it seems, than Ms. Clark has—of their integrity and that they will find as the record stands now that I did not, could not, and would not have committed this murder. I have four kids, two kids I haven ’t seen in a year. They ask me every week, ‘Dad, how much longer? ’ “

  As Judge Ito began to interrupt him, O.J. quickly finished. “I want this trial over. Thank you.”

  “Mr. Simpson, you do understand your right to testify?” the judge asked.

  “Yes, I do.”

  “And you choose to waive that right?”

  “Yes, Your Honor,” O.J. said. “I do.”

  The defense rested.

  Chapter Twenty-two

  Judge Ito assured the jury that after they heard his instructions, the prosecution and defense closing arguments would proceed as quickly as possible, without any breaks. There were scattered smiles among them, exhaustion mixed with anticipation, as though they had been on a long ocean voyage that was coming to an end.