But Ito was momentarily distracted by another subject, and he invited the jury back in before Darden could conduct the demonstration with the evidence gloves. Embarrassed by his own lack of preparation, and goaded by Bailey, Darden barreled ahead—now in front of the jury.
“Your Honor,” Darden said, “at this time the People would ask that Mr. Simpson step forward and try on the glove recovered at Bundy as well as the glove recovered at Rockingham.” Seated beside Darden, Marcia Clark widened her eyes in astonishment. They had discussed this very subject. Darden had said he was not going to do this. Barely a minute before, Darden had said he was only going to do it outside the presence of the jury. Clark thought about saying something, risking the humiliation of her colleague by saying, “No! Stop!” But she kept her seat.
Ito’s clerk passed a box of latex gloves to the defense table. For several agonizing minutes, Simpson struggled to get the thin rubber over his hands—and plainly failed to get the latex gloves on all the way. Light shined through the gloves between each of Simpson’s fingers. Thus, even before Darden handed the evidence gloves to the defendant, it was clear that they could not fit over the latex.
Darden walked over to Simpson and said, “I’m handing Mr. Simpson the left glove, Rockingham.” (This, too, was wrong—the left glove came from Bundy, the right from Rockingham.)
Darden asked Simpson to walk toward him and the jury, and both Cochran and one of the sheriff’s deputies came with the defendant, creating a traffic jam in front of the jury box. As Simpson walked, he began trying to put on the left glove.
At all times, Simpson kept his thumb bent outward at a right angle to his wrist. That, too, made it impossible for the gloves to fit properly. O.J. grimaced and said more or less to Cochran, but really to the jury, “Too tight.”
“Your Honor,” Darden said, his voice now trembling, “apparently Mr. Simpson seems to be having a problem putting the glove on his hand.”
Johnnie Cochran, stifling a smile, properly objected to Darden’s narration of the event. Simpson struggled with the right-hand glove, and then began pounding between his fingers as if he were actually trying to make the gloves fit. But the bunched latex limited how far the gloves could go, and Simpson never pushed between his thumb and forefinger, where the angle was really preventing the gloves from going all the way onto his hands.
Darden noticed Simpson’s cocked thumb and said, “Can we ask him to straighten his fingers and extend them into the glove as one normally might put a glove on?”
Ito said yes, but Cochran burst in again: “Your Honor, object to this statement by counsel.” Still, because the demonstration was completely under Simpson’s control, the defendant simply ignored the request to straighten his fingers.
Recognizing the catasphrophe he had wrought, Darden tried to salvage something. “Could we ask him to grasp an object in his hand, a marker perhaps, Your Honor?” Simpson took a marker and held it in his fist the way a baby would, with his thumb still splayed out. Panicking even more, Darden asked Simpson to simulate a stabbing motion, but Cochran scotched that idea with an indignant objection.
Ito sent Simpson back to his seat. O.J. slipped the gloves off in a flash, which would not have been possible if they were really too tight.
Floundering, Darden asked to approach the bench. As he did, Alan Dershowitz, who was making a rare appearance in the courtroom, had to cover his mouth to keep from laughing out loud at the fiasco. Darden secured permission for Rubin to place his hand against Simpson’s to determine if the gloves should have fit. Ito approved, and Rubin placed his palm against the defendant’s.
Back at the podium, Darden asked Rubin, “Should the gloves shown to you here in court today have fit Mr. Simpson’s hand in your opinion?”
“At one point in time,” Rubin replied, “those gloves would be actually, I think, large on Mr. Simpson’s hand.”
Prodded by Clark, Darden asked, “Could you tell whether or not he was intentionally holding his thumb in a certain position so that he couldn’t put the gloves on?”
It was an argumentative and speculative question, and Ito prohibited it. Then the judge called it a day.
Back on the eighteenth floor, Darden—shell-shocked by the experience—sank into his office chair. Hodgman sought him out and said, “C’mon, Chris, we’re trial lawyers. There’s a way out of this.” In the book he wrote later, Darden gave a self-pitying account of the aftermath of the demonstration—“I passed my colleagues in the hallway and they were silent”—but others on the team remembered that several people approached him to offer support. It was certainly true that Hodgman invited Rubin into Darden’s office, and within minutes of the end of the court day, they were all planning how to undo the mess.
It was also true, however, that Clark did not speak to Darden. As she was driving home from the courthouse that day, she called her friend Lynn Reed Baragona on her car phone. “Do you think this is it?” Clark asked, not really wanting an answer. “Do you think it’s over now?”
The glove demonstration provided the classic example of Darden’s shortcomings as a trial lawyer—his impetuousness, his immaturity, his failure to prepare either himself or his witnesses adequately. Though some jurors thought Simpson was mugging and making a conscious effort to ensure that the gloves would not fit, several others viewed it as the turning point in the case. For good reason, then, the prosecutors sought to control the damage to their case.
Darden asked Rubin to stay in Los Angeles over the weekend, and on Monday asked him a series of tortured questions in court, attempting to undo the harm from the demonstration. Could the gloves have shrunk? Yes—something that would have been more obvious to a jury in a cold-weather region. Could the latex glove have affected the fit? Of course. Rubin had brought to court an unworn pair of the precise make and model of the evidence gloves and those—placed on Simpson’s hand without a latex barrier—clearly did fit. The damage-control operation succeeded mostly in underlining that the prosecutors themselves regarded the previous week’s stunt as a disaster. Cochran’s smirking re-cross-examination of Rubin focused mainly on how distraught the prosecution was after the previous week’s testimony.
Once again, the prosecution’s distress overshadowed some highly incriminating evidence that came next. William Bodziak was the anti-Fung—the unassailable government forensic expert. He had devoted more than twenty years to the study of foot and shoe impressions, and he conducted a remarkably detailed analysis of the prints leading away from the murder scene to the side of Nicole Brown Simpson’s house. Bodziak said the shoe prints had been made by a size-twelve Bruno Magli shoe known both as the Lyon and the Lorenzo—a model that retailed for about $160. Based on the lengths of the strides and the size of the shoes, Bodziak said the individual who made the impressions was probably a little more than six feet tall. (Simpson stood six foot two inches, and, like only 9 percent of the population, wore a size-twelve shoe.) What was more, Bodziak found a slight impression of this Bruno Magli type of shoe on the rug of Simpson’s Bronco, the presumed getaway vehicle. And perhaps most important of all, Bodziak’s analysis of the crime scene photographs showed only one set of shoe prints at the scene—the most compelling evidence that there had been just one killer.
Finally, in the grisly if speculative conclusion of his testimony, Bodziak said that impressions on Nicole’s back and on her dress were also consistent with the size-twelve Bruno Maglis. In other words, completing the picture from Lakshmanan’s testimony, Bodziak suggested that Simpson had planted his foot on the unconcious Nicole’s back, grabbed her hair with his left hand, and cut her throat with his right—an image of startling savagery.
Bodziak testified on Monday, June 19, and F. Lee Bailey had spent the previous weekend conducting, with characteristic gusto, a week-late celebration of his sixty-second birthday. In a bizarre and rambling cross-examination, Bailey actually suggested that two murderers might have conspired to wear the same shoes to throw off the police:
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bsp; “Would it be possible for two people to arrange, knowing that footwear—particularly if you’re in the business of crime—can be almost as dangerous as a fingerprint, would it be possible for two people to arrange to arrive at a crime scene in the same footwear, make and model?”
An incredulous Bodziak told him, “I don’t believe, in my opinion, that that could possibly happen.”
Pursuing this novel theory, Bailey first called Bodziak by the wrong name, then asked, “Do you think these fellows chat together at all once they get in the hoosegow?”
“I’m sure they do.”
“And most of them are acutely aware of the mistakes they made?…”
“Yes.”
Bailey went on, “Professional assassins frequently do not get caught, true?”
Hank Goldberg objected to this odd query, and Bailey staggered to another subject. During the break, Cochran followed Bailey into the lockup with Simpson and told his colleague to pull himself together. “Stay on point,” Cochran scolded. “You’re trying to show how smart you are, and all you’re doing is showing how smart he is.”
Later that day, Simpson himself was angry at Bailey’s rambling about the “hoosegow” and other irrelevancies. Simpson never made up his mind about Bailey; he admired his roguish aggressiveness but feared his personal instability. “That’s it,” O.J. said after court on this June day. “I don’t want to see him in court again. The man will do no more witnesses.”
After her nearly three months without examining a witness, Marcia Clark returned to the trial nearly incoherent with indignation at the defense’s racial appeals but at a loss for an effective response. When Dershowitz made a formal motion charging the prosecution with “targeting” certain black jurors for removal—a rather frivolous claim, to be sure—Clark replied with a bona fide courtroom rant. “Of all the motions made by the defense, I find this one the most offensive, groundless, and baseless,” she said, by way of introduction. “This was a motion filed deliberately for inflammatory effect. It has no law in its support. It has no facts in its support. This is a scurrilous attempt to inflame the community, if not the very jury itself. It may be constitutionally protected speech, Your Honor, but constitutionally protected does not mean moral, does not mean ethical, and does not mean truthful. And the groundless, baseless, inflammatory allegations contained in this motion are the lowest tactics I have seen yet in this case.” Ito rejected the defense motion, but it wasn’t hard to catch the edge of desperation in Clark. (These tirades contributed to the impression that Clark had a larger role in the trial than she actually did. Her denunciations of the defense team made good television, and they often served as the trial’s nightly sound bite even when Clark was not examining any witnesses.)
The prosecution never really rallied after the glove incident. Shortly after Bodziak completed his testimony, Peter Neufeld showed that a prosecution DNA expert witness named Bruce Weir had made errors in calculating some of the odds of the genetic matches in the case. The changes themselves did not amount to much, but they further damaged the air of incontrovertibility with which the prosecution had attempted to surround the DNA evidence. Clark had just one more important witness to present to the jury, Douglas Deedrick, an FBI hair-and-fiber expert, and that experience, too, began with a prosecution botch.
Though Clark had had nearly three months to prepare Deedrick’s testimony, she did not turn over to the defense all the photographs Deedrick would be relying on until the night before he took the stand. Not surprisingly, and with some justification, the defense complained to Ito about being sandbagged by this late disclosure. When Ito gave the defense lawyers an extra night to examine the photographs and interview Deedrick, they found something else that the prosecution appeared to have withheld—an extensive written report on the evidence by Deedrick. (Clark said she had never seen the report.) Again, as Simpson’s lawyers were only too willing to point out, the prosecutors had committed the kind of lapse in discovery for which they had so often denounced the defense. “This is more than a mistake,” Cochran said. “This was calculated.… This egregious violation comes as our jury waits, as the [prosecution] case whimpers to a conclusion.”
As a sanction against the prosecution, the defense asked the judge to exclude Deedrick’s entire testimony—or at least a good part of it—and Clark nearly wept with frustration as she pleaded with Ito to let her proceed. “To preclude evidence that is important to the proof of the elements of the crime would unfairly punish not just the victims but the people of the state of California—and, I do point out to the Court, the families of Ronald Goldman and Nicole Brown Simpson,” Clark told the judge. “If the Court feels that we have been remiss, then I would urge the Court to penalize us personally, or myself personally. But please don’t—please don’t penalize the proof of the case.”
This speech by Clark—in particular the way she played the “victim card”—represented a considerable gamble. Many judges would have taken offense at Clark’s attempt to make Ito feel guilty about hurting the prosecution’s case. A crueler jurist than Lance Ito would have invited Marcia Clark to explain to the victims’ families herself why her own mistakes (not the judge’s) had jeopardized the case against O.J. Simpson. But Ito, placid to a fault, let Clark go without the reprimand she deserved. He also steered a middle ground in his ruling, one consistent with his truth-school inclinations. He allowed Deedrick to give the bulk of his testimony but precluded him from discussing some of the matters that had been mentioned in his belatedly discovered report.
And so, once again, devastating evidence against Simpson came after a disheartening preamble for the prosecution. Still, Deedrick did present a stunning catalogue of the evidence tying Simpson to the murders. Among his findings:
• Hair in the blue-knit watch cap found near Goldman’s feet matched Simpson’s hair;
• Hair found on Ron Goldman’s shirt matched Simpson’s hair—which was likely deposited by “direct contact,” possibly when Simpson grabbed Goldman by the throat from behind;
• Hair matching Nicole’s was found on the bloody right-hand glove at Rockingham—consistent with Lakshmanan’s and Bodziak’s testimony that Simpson had yanked her by the hair before he slit her throat;
• Blue-black cotton fibers—the color of Simpson’s outfit when he went to McDonald’s with Kaelin—were found on the Rockingham glove, the socks in Simpson’s bedroom, and Goldman’s shirt;
• Fibers from Goldman’s shirt matched those found on each of the gloves;
• Carpet fibers like those from Simpson’s Bronco matched those found on the knit hat and on the Rockingham glove.
It was on this last category that Clark paid the price for her discovery dereliction. In fact, Deedrick had written in his report that these rare synthetic fibers could have come only from a 1993 or 1994 Ford Bronco. (Simpson’s was a 1994 model.) But under Ito’s ruling on what Deedrick could testify about, the jurors could hear only that the fibers were consistent, not that they were so unusual.
Bailey, who had worked his way back into Simpson’s good graces, made the point on cross-examination that hair and fiber matches do not yield results as conclusive as fingerprints or DNA tests. Still, analyzed objectively, the hair and fiber matches should have been close to conclusive evidence of Simpson’s guilt—or, at the very least, a clear indication that Fuhrman did not plant evidence. How, for example, could Fuhrman have arranged for fibers from the Bronco to be on the Rockingham glove? Or Bronco fibers to be in the hat found at the crime scene? How could he have put Simpson’s hair on Goldman’s shirt?
In a perverse way, it almost hurt the prosecution that it had so much incriminating evidence against Simpson. In many murder cases, even a single hair or fiber match is unusual. Here the sheer number of associations between Simpson and the evidence made the evidence seem too complex when in fact it merely showed just how guilty Simpson was.
In the end, the hair and fiber evidence seemed to have had virtually no impact on the exhaus
ted jurors. It was not even mentioned during jury deliberations. It did not help that Clark’s rustiness showed during her examination of Deedrick. Rattled by Bailey’s frequent objections, she provided a halting and convoluted presentation of this highly significant evidence.
Deedrick completed his testimony on July 5, almost one year to the day after the end of the preliminary hearing before Judge Kennedy-Powell. Scott Gordon, the prosecution’s domestic-violence expert, never tired of arguing that the team should flesh out the story of Simpson’s abuse of Nicole with a few more witnesses. With just two alternates remaining on the fragile jury—and no witness waiting in the wings to testify about physical altercations between O.J. and Nicole—Clark, Hodgman, and Darden decided that new witnesses weren’t worth the consumption of time.
The prosecutors had long since decided to forgo presenting any evidence relating to Simpson’s flight in Cowlings’s Bronco on June 17, 1994. True, the low-speed chase amounted to evidence of flight—and the money and disguise in the car suggested a premeditated plan for escape. But Cowlings had said the cash was his own, and the detectives precipitately returned the money to him after the surrender on June 17. As for the disguise, Simpson had witnesses who would say that it was so he could take his children to an amusement park in peace. Even if Simpson’s explanation sounded farfetched, the prosecutors weren’t positive that Simpson had really been trying to escape. All in all, as Hodgman said, the chase evidence was “a can of worms.” It would require calling a number of witnesses—including Simpson’s secretary, Cathy Randa, and of course his friend Al Cowlings—who were sure to shade their testimony in Simpson’s favor. These witnesses would tell the jury a great deal about Simpson’s grief over the death of his ex-wife. Worse, the full story of the chase might require several more weeks of testimony. After a nearly six-month-long prosecution case, the prosecutors didn’t have the will for more—and it is difficult to blame them. “If the jury wasn’t persuaded by the domestic violence and the DNA,” Hodgman said later, “I don’t think there was anything in the chase that would change their minds.”
The Run of His Life Page 43