Journey into Darkness (53 page)

The next thing we’d talk about would be interrogation techniques. By the time this imaginary profiling consultation would have taken place, Detectives Thomas Lange and Philip Vannatter had already interviewed Simpson, through his own consent, without a lawyer present. Some useful information came out of the session, such as that Simpson admitted having cut himself before the incident where he claimed to have cut himself slamming down a glass in his hotel room in Chicago when he heard from the police that Nicole had been killed. But the interview wasn’t nearly incisive enough and didn’t go on long enough. If anything, I believe the police were too solicitous of Simpson.

“I was shocked he’d talk to the police,” Jud Ray commented. “But from a practical point of view, guys like that are used to beating the system. He must have actually felt he could beat it by doing that, and in a sense he did.”

“There’s nothing you can do about that at this point,” I would say to the task force, “and I’d be very surprised if his lawyers let you at him again, particularly without one of them in the room. But if you do get the chance, it’s very
important that you get him in a nonthreatening setting where you’re able to take as much time as you need, build up in his own mind how much compelling evidence you have, tell him his blood is found at the scene, and then offer him some face-saving scenario.”

The same technique that I’ve used with child killers—suggesting that he didn’t want to strangle the little girl but that she “forced him into it”—is often useful with murderers of adults, too. If the crime somehow can be justified in the killer’s mind and he believes the police understand this—that’s your best shot at a confession. Since Detective Mark Fuhrman had answered a domestic disorder call between O.J. and Nicole some years before when he was a uniformed patrolman, he could be used in the scenario, saying that he knew there had been trouble between the two of them and he saw how she could have provoked him.

You can also use the split personality scenario as I employed when questioning Larry Gene Bell. Though he wouldn’t admit that the Larry Gene sitting before me had killed Shari Faye Smith, he finally acknowledged that the “bad Larry Gene Bell” could have. It was as close to a confession as we ever got from him.

We focus on the post-offense behavior, and here there are a number of key indicators. On the most basic level, we examine when LAPD Detective Ron Phillips reached Simpson in his Chicago hotel room on June 13, 1994, and informed him that his ex-wife had been killed. According to prosecutor Christopher Darden in his book
In Contempt
, Simpson not only didn’t ask how she’d been killed, he didn’t ask which ex-wife! Jeffrey Toobin, in his own book,
The Run of His Life
, states that Phillips did mention Nicole’s name, but that Simpson never asked how she had died and whether it was the result of an accident or a crime. In either case, this is very telling. Reacting as if you’ve not previously heard the news can be thought of as a form of staging—and if you aren’t experienced at it, it’s difficult to carry it off in a manner believable to a trained observer.

On a general level, I tell the task force. Simpson’s behavior is not consistent with what you would expect from an innocent person, particularly an innocent person used to being in control and enjoying constant public adulation. You
would expect an innocent person accused of such a crime to respond with outrage, to deny it with every fiber of his being.

“
If you think I could kill my wife, you’re fucking nuts!”
would be an expected response. “
And if you found my blood or hair or fingerprints or anything of mine on the scene, then someone fucking planted them there!”

This was not the response observed in the days following the announcement that O.J. Simpson would be charged with the murders.

Some, like Simpson counsel Alan Dershowitz, have suggested that Simpson was so overwhelmed with grief and so depressed that he could not muster this kind of outrage. I don’t buy this reasoning for a minute. If a man is truly grieved over the loss of his wife (or even ex-wife), it is absolutely crucial to him to defend her memory and their mutual honor with more than a perfunctory denial of involvement. Being innocent and not being outraged in such a situation, in itself, would be very out of character for a personality of this sort.

“Are we looking at a suicide risk, John?”

“When a heavily control-oriented person suddenly loses control, there’s always a risk of suicide. But I would think that with this narcissistic a subject, what you might be more likely to see is a feigned suicide attempt, a plea for attention and sympathy. I think he might threaten to kill himself with a knife or a gun, but I don’t think you’re going to see him slit his own wrists or blow his brains out or anything painful like that. If he does actually make an attempt, expect it to be with pills, and before it’s too late he will have called a close friend who could rescue him in time and give him a lot of favorable publicity in the bargain.”

As we subsequently learned, Simpson did compose and “publish” a suicide note and held a gun to his head during the Bronco chase. If that’s not an attempt to gain publicity, I don’t know what is.

At this point in the consultation they’d tell me about their non-behaviorally-oriented forensic evidence, primarily the blood. The preliminary tests link O.J. Simpson to the crime scene. That is to say, the forensic evidence and the behavioral
evidence square and support each other. As an investigator, this is the position you want to be in.

“Then I’d say you’ve got your guy,” I conclude.

Weeks later, we will learn that the blood DNA, which has the individuality of fingerprints, also matches, leaving the defense with only one possible scenario of deniability—that the police planted the blood to incriminate their suspect.

Here again, profiling and our brand of investigative analysis can come into play.

If we had been consulted on the initial crime, it would not be unusual for us to be called in again as the prosecution was preparing its case, as we had been many times before, such as in the trials of Wayne Williams. Sedley Alley, and Cleophus Prince. One of the key things we would do is develop an effective prosecutorial strategy if the defendant decides to take the stand in his own defense. With someone as smooth, charming, and controlled as O.J. Simpson, we would be figuring out what the prosecutors could do or bring up in cross examination that would show the jury what they believed him to be capable of doing—that is, brutally killing his ex-wife and her friend.

Since just about everyone, including the jurors, had heard the celebrated 911 tapes of Nicole being threatened by O.J., I would probably use that as a basis of attack, pressing the defendant to prove that that isn’t what he’s really like. In the course of so doing, I think we could get that aspect of his personality to emerge. We certainly had enough material on his personal life to press some of the right buttons.

A fact which, I’m sure, was not lost on Robert Shapiro and Johnnie Cochran, Simpson’s two main attorneys, who insisted he not take the stand. In our legal system, each defendant has an absolute Fifth Amendment guarantee against self-incrimination, and I would not encroach upon this right in any way. The jury is normally instructed to draw no inference one way or the other from the defendant’s assertion of that right. In fact, they are told, he need not put on any defense at all. The burden of proof is strictly on the prosecution, as it must and should be.

At the same time, I must say that I think it is somewhat ingenuous on the part of all concerned not to expect normal, reasonably intelligent adults not to at least wonder at someone
who, given the chance to help prove his innocence, would think his testimony would do just the opposite. I don’t think I’ve ever been involved with a trial in which someone I thought might possibly be innocent chose not to testify and get that point across.

As Vincent Bugliosi, the extremely able and articulate attorney who prosecuted the Manson case for the State of California, put it, we’d have a pretty wretched system if most of the people charged by the police, brought up before a grand jury, then extensively investigated by prosecutors turned out to be innocent.

So the linchpin of the defense case turns out, to no one’s surprise, to be the possibility of a police frame-up of Simpson by elements of the Los Angeles Police Department. To the defense attorneys, this seems to be a pretty good tactic to use since the jury is predominantly black and no one with any sense of reality can argue that, over the years, the LAPD has not had a rather deplorable record when it comes to insensitivity, intimidation, and out-and-out police brutality against minorities, blacks especially. Bugliosi, who is in a position to know, cites several examples of probable police homicides of unarmed subjects. The issue is further complicated by the pivotal role of Detective Mark Fuhrman, the man who found the bloody glovebehind Simpson’s residence, whose antipathy toward minority groups is well established.

The defense doesn’t have to prove this frame-up. All they have to do is establish reasonable doubt; they must merely show that it could have happened.

Under these circumstances, the prosecution has two choices: ignore the suggestion and press on with their case, or try to disprove it, to neutralize it as a defense.

If I’m giving advice on prosecutorial strategy to district attorneys Marcia Clark and Christopher Darden, I’m telling them that with this jury, they ignore or minimize the issue at their peril. They’ve got to prove, beyond a reasonable doubt, that a police frame-up didn’t happen. Since negatives are difficult to prove, what they’ve got to do, it seems to me, is show, through behavioral analysis, that, reasonably, it
couldn’t
have happened. And the way you do that is to take the jury through the scenario as if it
had
happened.

First of all, we’ve got to suppose several things: one is that certain LAPD members were of a mind to frame a subject of the stature of O.J. Simpson. Well, maybe they were. After all, we have reason to believe Mark Fuhrman hates blacks.

But we’ve got a couple of problems here. A number of black police officers and citizens are willing to testify that they never saw any evidence of racial hatred or prejudice from him. He was known to have black friends, and at one point, in fact, he had a black female partner.

Okay, so maybe he hid it and what came out on the notorious “Fuhrman tapes” was the real Mark Fuhrman. So we’ve got to have a more reliable behavioral indicator of whether a guy like Mark Fuhrman would take it upon himself to frame a guy like O.J. Simpson for murder. And here’s where we run into another behavioral inconsistency with the frame-up theory. We know as an undisputed fact that several years earlier, as a patrolman, Fuhrman answered a domestic complaint at the Simpsons’ home. I mean, here he sees evidence that this black man has beaten up this white woman, so if he’s at all prone to bust this guy’s chops, here’s his goldplated opportunity. No one would utter a word of protest if he ran Simpson in on a domestic battery charge. But he doesn’t. In fact, he’s rather in awe of him. So given this, a couple of years later, how logical is it that Fuhrman suddenly changes his behavior and decides to plant evidence?

You also have to consider the behavioral precedent. As Vince Bugliosi points out in
Outrage
, his penetrating and hard-hitting analysis of the Simpson trial, while the idea of police brutality, unfortunately, is well within the experience of too many black citizens of Los Angeles, the idea of a police frame-up is not. It’s too complicated and elaborate and far from foolproof. Even at their worst, this is not the way rogue elements of the LAPD settle their scores. And group behavioral dynamics tend to be as consistent, if not more so, as those of individuals.

Then you have to accept another set of suppositions if you’re going to accept the frame-up theory.

To frame Simpson, these cops all have to get together and agree among themselves that they’re going to do it. If one of them dissents, they’re all screwed. Then they have to
agree among themselves that they’re going to let the real killer go free. If they’ve put Simpson on ice as their prime suspect and the UNSUB kills again, they and the LAPD are going to be in some deep shit; there’s no way around this.

And even if they’re willing to let the real killer go free, they’ve got to know what at that point is unknowable—that Simpson doesn’t have an ironclad alibi for the time in question. If he happens to have been at one of his frequent charity benefits or public appearances that night, then the shit just gets deeper and deeper and these fellows are all not only out of a job, they’re contemplating the view across the Golden Gate from a bayside window at San Quentin. No matter how they feel about minorities, after the Rodney King case, could any of them possibly not think they’d get crucified in court and in the media for symbolically beating up on a black man who is not only a lot more prominent than Rodney King, but is adored by most of the country, black and white?

Take a detective like Philip Vannatter. He only has a couple of months to go before retirement after a distinguished career with a spotless record. I’ve spent twenty-five years dealing with cops—good cops, great cops, not-so-good cops, and bad cops—on a daily basis and I know how their minds work. There is no way in hell that a Phil Vannatter is going to risk his pension and his freedom—in other words, is going to lay the rest of his life and his family’s welfare—on the line for something as silly as this, particularly this close to retirement. There just ain’t anything in it for him.

And for this frame-up to have taken place would have required a massively widespread conspiracy. I’ve been around institutions and bureaucracies long enough to know that it’s virtually impossible to get anything done on a large scale, particularly spontaneously, without someone else finding out.

So, for a frame-up to have occurred, two sets of detectives from different divisions who didn’t even know each other had to meet at the crime scene and spontaneously decide that since one of the victims was O.J. Simpson’s ex-wife and since O.J. is black, then they’d just frame him for the murders and ignore the real killer, have confidence that everyone from the lab they’d have to bring into the conspiracy
would support them, have faith in the fact that Simpson didn’t have an alibi that would blow them out of the water, and risk everything they’d worked for all those years on a cop’s salary just to sink a guy who everyone loves and who one of them, given the opportunity to arrest him several years before when he had probable cause, had not done so.