Murder in Brentwood (12 page)

Simpson’s defense was being formulated even before he was charged with the crimes. One of the first things Shapiro did was arrange for Simpson to take a polygraph test. But he failed the test so completely that the results were kept secret until well after the trial.

A couple of days later, on the morning of June 17, Simpson’s surrender was delayed for no other reason than further preparation of his case. Shapiro summoned two medical experts to Kardashians house, forensic psychiatrist Saul Faerstein and internist Dr. Robert Huizenga, as well as the two newly hired expert witnesses, Drs. Lee and Baden. That morning, the doctors performed a battery of tests and took several photographs that were later used to argue that Simpson was not extensively injured or cut. In the trial, Huizenga would argue that Simpson had no injuries oilier than a few small cuts on his hands. He would also claim that Simpson’s physical condition had so deteriorated since his playing days that “although he looked like Tarzan, he was walking more like Tarzan’s grandfather.” But when cross-examined by the prosecution, Huizenga had to admit that Simpson was physically capable of committing the murders.

Faerstein’s job was to keep Simpson sedated and monitor his emotional state. When Simpson was already past his surrender deadline, Faerstein told the LAPD that his patient was clinically depressed and could not come in. Then, claiming doctor-patient privilege, he refused to tell the police where Simpson was. Faerstein never testified

[Simpson failed the polygraph test so completely that the results were kept secret until well after the trial.]

during the trial, but his hiring does raise a question: Why do you have to worry about the mental health of an

innocent man?
                                        

Dr. Henry Lee is a great forensic scientist. He knew who was paying for his testimony, and I’m sure the defense

was pleased with the outcome. His scientific knowledge is considerable, but in court it was often overshadowed by his showmanship, a talent the defense used to great advantage. The courtroom demonstrations on blood spatter and evidence gathering that he conducted were no doubt entertaining, but they had little or no legal weight.

Lee is very aware of his theatricality and its effect in the courtroom. As prosecutor Hank Goldberg reported in The Prosecution Responds, after finishing his testimony, Lee came up to Hank and said: “See, gave you a little and gave them a little.”

Dr. Michael Baden is a highly skilled forensic pathologist, probably one of the best. I had once worked a case where he was brought in by the victim s family to give a second opinion. At first the case was deemed an accidental death, but Baden’s review of the autopsy allowed the police to reclassify it as a homicide. Baden appears to be a scientist first and an expert witness second.

By hiring these and other expert witnesses, Shapiro was doing two things. First, he was lining up some of the best witnesses available. Second, he was making it impossible for the prosecution to use them. Both prosecution and defense have a right to use expert testimony. However, the defense has one significant advantage over the prosecution-they can pay for it. While a defense can use witnesses for hire, the prosecution has only the power of subpoena.

Expert witnesses make a living testifying in court. Some of them keep their day jobs, but others are solely professional witnesses. Professional witnesses may not alter the truth, but they certainly shade its inference in order to please the client. The defense attorneys don’t have to say, “Look, we need you to say this and that, and make sure you don’t say that and this.” Instead, it is tacitly understood by all involved that the defense experts will do what they can to strengthen and reinforce the defense’s case. They will put great emphasis on any evidence that is the least bit exculpatory. That is what they are paid to do. Right or wrong, this is how the legal system works today.

To anybody who would listen, and everybody on his payroll would, Simpson repeatedly proclaimed his innocence. Even when the DNA evidence started coming in and Simpson could not explain it away, he continued to insist he didn’t do it. And he hired a team of experts who would spend the next year trying to find something, anything, that could prove their client’s innocence. When they failed to find even a single shred of evidence that either implicated another suspect or offered an affirmative defense for their client, the defense attorneys gave up. Instead of defending their client, they focused all their firepower on the prosecution.

Although the Simpson defense team had more famous attorneys than most others, it was not unique. They didn’t have any magical powers, aside from O.J. Simpson’s bankbook. And even though the Simpson team was better paid than most defense attorneys, that doesn’t necessarily mean they were excellent lawyers. Given the almost unlimited resources at their disposal, it’s no wonder they mounted a vigorous defense.

On many issues, they were right. There were significant problems with some of the policework. The conduct of the police at the scene left the investigation and evidence vulnerable to charges of contamination. The prosecution made a lot of mistakes. Had the Simpson defense team just stuck to the material issues in the case, they would have done a good job. Unfortunately, they went over the line, particularly in their use of race and racial issues.

The race card was dealt from the beginning. Days after Simpson’s arrest, several black leaders met with Gil Garcetti at Urban League headquarters to express their concerns that Simpson might not get a fair trial. These leaders insisted that the jury be racially mixed and warned that an unpopular verdict might result in another round of riots. Chief among the leaders was Johnnie Cochran, who took the opportunity to remind Gil Garcetti that the black community would be watching. Meanwhile, he was talking with Simpson about handling his defense.

Even if he thought Simpson was guilty, Shapiro wanted to defend his client to the best of his ability. But he also knew that there was little he could do that reason, honor, and the law would allow. Shapiro is a decent man. He slammed me in court and in the media, but that’s to be expected. On a personal level, he has always treated me with respect. Shapiro was the only defense attorney who would greet me every morning when I appeared. Had Shapiro remained in charge of the defense, he would have done everything in his power to make sure that Simpson received a fair trial, and he would have done all he could to get Simpson off. Shapiro would have fought hard to exclude evidence that he didn’t think belonged in the trial, and he would have fought hard to introduce evidence that he thought was relevant. But he would have kept the trial within the bounds of reason and integrity.

When Johnnie Cochran joined the defense team, it lost a little class. The defense’s posture and attitude changed overnight. There was a no holds-barred atmosphere that infected almost every aspect of their case. This new attitude even affected the client. Simpson was no longer the guilt-ridden and morose character of the Bronco chase and his subsequent booking. Giving his plea in the Superior Court trial, he would later say, “absolutely 100 percent not guilty.”

We don’t know how much Simpson spent on his defense, and we will probably never know. There are rumors and estimates and speculation, but only a few known facts. Shapiro was put on a retainer of $100,000 a month, although he hasn’t been paid in full. We know that Dr. Michael Baden was paid $100,000 for his services, and that the defense hired several other expert witnesses at about the same rate. We also know that a team of private investigators flew all over the country trying to dig up dirt on people, including me. This last investment may have been their best.

The defense team had talent. But more importantly, it had substantial financial resources. Those resources allowed the defense to spend a great deal of time, effort, and expense making legitimate arguments about the problems in the case. But they also used those same resources to second-guess evidence and witnesses that should have been unassailable. And they used their considerable assets, in both personnel and cash, to conduct a smear campaign against me and others.

There’s an old legal saying: If the evidence is with you, pound on the evidence. If the evidence is against you, pound on the law. And if the evidence and the law are against you, pound on the podium. The Simpson lawyers didn’t have any credible defense, so they started pounding on the podium, and anyone else who happened to be nearby. Unfortunately, I walked right into the middle of it.

Chapter 8

WITNESS FOR THE PEOPLE

As I watched the six-day preliminary hearing... I was mystified at some of what the defense did. It seemed ill prepared to really examine Mark Fuhrman.

JOHNNIE COCHRAN

JUST PRIOR TO SIMPSON’S ARREST, District Attorney Gil Garcetti decided to present the case against Simpson before the grand jury. In my opinion, this was a well-calculated move to limit the exposure of his case before trial. Grand jury proceedings are secret, and defense counsel are not present to hear the prosecution’s case. A preliminary hearing, the alternative to a grand jury, would have made public any items of evidence, witnesses, and the prosecution’s theory of the crime and motives which would make jury selection even more difficult.

I was subpoenaed to appear before the grand jury and went to the criminal courts building at 210 W. Temple the week of June 20. I sat in the grand jury witness waiting room with Phillips, Vannatter, Lange, and others all day, talking, drinking roll,.,-, and reading three-month-old magazines. But we were never called to testify. When Simpson s defense challenged the grand jury on grounds that its members had heard excerpts from the tapes of the 911 call Nicole made in 1993, the district attorney’s office went along with the motion, and the grand jury was dismissed. Although we were never told by the prosecutors office, we wound up hearing in the news coverage that the Simpson case would not be heard by the grand jury.

With the grand jury hearing blown, the only alternative was a preliminary hearing. A preliminary hearing is normally a skeleton case, with the prosecution using only enough witnesses and evidence to hold the suspect over for a Superior Court trial. In a preliminary hearing, the defense can cross-examine witnesses and all evidence used is made available to them, so it is in the prosecutions best interests to keep everything to a minimum.

Having not been notified or subpoenaed for the preliminary hearing, I never gave it a second thought, figuring that they didn’t need me as a witness. I knew that the evidence I found was no doubt important and my presence would be needed at the Superior Court trial, but considering what I knew of the case, I wasn’t sure that it would even get that far. With as much evidence as I thought we had against Simpson, there could have been a plea bargain.

Before the preliminary hearing I already knew the importance of the glove I had found at Rockingham, but I didn’t yet realize how central it was to the case. Although Lange and Vannatter were told not to divulge the results of the preliminary DNA tests on the glove to anyone, within hours of the results Phillips and I were told that the Rockingham glove was stained with blood from Ron, Nicole, and Simpson.

Then on July 5, sometime around noon, as I was just sitting down to eat a sack lunch at my desk, the district attorney s office called and told me to be in court at 1:30 P.M. Our normal homicide vehicles needed to be used that afternoon, so I borrowed an older car from burglary and drove to the Criminal Courts building.

Eating my tuna fish sandwich as I drove to court, I realized that the Rockingham glove proved one irrefutable fact if nothing else: Because it had the blood of all three people, it was the one piece of evidence that linked Simpson with the two victims. And it also connected the crime scene at Bundy with the Rockingham estate. No wonder they needed me to testify.

I arrived at the Criminal Courts building shortly before 1:00 P.M. When I got there, I met Marcia Clark for the second time, although we didn’t have a chance to say much more than hello. She told me I was going on in a few minutes and that was all. We didn’t have any time to talk about my testimony.

It’s weird what you recall two years after an event. I remember thinking that I had a small hole in my rear pants pocket, my jacket was wrinkled in the back, and I had a sport jacket on, not a suit. I had played basketball at 6:00 that morning, and I had a bad hair day after my shower. These details seemed important then.

Once I took the stand and was sworn in, Marcia led me through my actions and conclusions at the crime scenes in some detail. Then defense attorney Gerald Uelmen conducted my cross-examination. Early in the questioning he focused on the events leading up to our arrival at Rockingham. Although I didn’t think that the investigating officers should have left the crime scene, I went through the reasoning that Vannatter and Lange had for going to notify Simpson at his home. Whenever possible, the families of murder victims should be notified in person. It was the Robbery/Homicide detective’s job to make the notification; Phillips and I were there for support. Vannatter and Lange instructed me to show the way. Even though I had been to the estate before, I didn’t remember exactly how to get there and had to ask Officer Riske for directions.

The reason for Uelmen’s line of questioning was simple. The defense was making a 1538.5 California Evidence Code motion to suppress the physical evidence we collected at Rockingham on the grounds that our entry of the estate was an illegal search and seizure. The motion to suppress was the first major legal challenge by the defense of the policework done on June 13. In California, the defense has only one chance to exclude evidence on such grounds, and Simpson’s lawyers took a big gamble by bringing in Professor Uelmen to argue the motion. They may have thought that because Judge Kathleen Kennedy-Powell was a former student of his, she would favor her old teacher. Personally, I think Robert Shapiro would have been more convincing, but they went with the professor.

Uelmen s strategy was to question our reasoning in deciding that we had probable cause to enter the Rockingham estate. He argued that we had violated Simpson’s Fourth Amendment rights. I knew we had not.