Outrage (42 page)

Just to see if my suspicions were correct, I called attorney Robert Tourtelot, Mark Fuhrman’s lawyer. Now, as you know, almost from the beginning of the case, even long before the discovery of the Fuhrman tapes, Fuhrman was by far the main witness the defense team had talked about for months, suggesting he had planted the glove and boasting how they intended to destroy him on cross-examination. I asked Tourtelot if Bailey, who had cross-examined Fuhrman, had interviewed Fuhrman. Answer: No. Did Bailey make any effort to? No. Did any member of the defense team, including investigators, interview Fuhrman or make any effort to do so? No. Can you imagine that? Bailey only handled a few witnesses during the long trial, and had all the time in the world to prepare for them, and yet he never even bothered to interview these witnesses before he was scheduled to cross-examine them, even, unbelievably, Mark Fuhrman.

I learned subsequently from Detective Lange that he wasn’t interviewed by Johnnie Cochran, the defense attorney who cross-examined him, and Vannatter wasn’t interviewed by Shapiro, his cross-examiner (nor did Cochran or Shapiro even request an interview), before these two defense attorneys conducted their cross-examination of the detectives at the trial. This was true not just of the investigating officers, but of many of the lay witnesses. When I checked with Wendy Putnam Park, the mother of the limousine driver, Alan Park (Ms. Park is a lawyer herself and represented her son throughout the proceedings), she informed me that Cochran had not interviewed her son before conducting his cross-examination of him on the witness stand. She said Cochran had talked to her son only once very briefly during a break from the trial in the courthouse hallway.

Interviewing the opposition witnesses is absolutely essential to effective cross-examination. It gives you one additional statement to impeach them with if their trial testimony differs from the statement in any way, and even though they are adverse witnesses, if you interview them enough times you can almost always elicit from them at least some information helpful to your side.

When I first pointed out, during one of my few television appearances, that the defense hadn’t even bothered to interview most of the prosecution witnesses, a few criminal defense attorneys in town called me to say that although they didn’t know about the lay witnesses for the prosecution, the
LAPD
detectives probably wouldn’t have even agreed to be interviewed by the defense team. These lawyers, of course, were just confirming their own incompetence. Number one, almost assuredly the detectives would have agreed to be interviewed. But even more important, since the defense in the Simpson case didn’t have one shred of evidence to support its preposterous claim that the
LAPD
detectives framed Simpson, if the defense attorneys had tried to interview the detectives, I would think they would have been hoping and praying the detectives would refuse to talk to them. Because on cross-examination, this refusal to be interviewed could be brought out in front of the jury to show the bias of the detectives against Simpson. It would have been the only tiny speck of circumstantial evidence they would have to support their outrageous claim of a police frame-up. As it turned out, with the Simpson jury and Simpson prosecutors, they didn’t need it, but they certainly had no way of knowing this at the time.

Not one of the many talking heads, who watched this entire case intently, mentioned this failure of the defense attorneys to interview most of the prosecution witnesses. And the obvious reason they didn’t is that they almost undoubtedly don’t do it themselves in their own cases, and therefore the thought that Simpson’s lawyers weren’t doing it never even occurred to them. Even a lawyer of the stature of Gerry Spence apparently doesn’t always interview the prosecution witnesses. At least in the docu-trial of Lee Harvey Oswald in London he and I worked on for five months, and in which he had two members of his law firm helping him, neither he nor any member of his team interviewed any of my witnesses, not even once, whereas I interviewed all of his, some three or four times. In the double murder case upon which my last true crime book,
And the Sea Will Tell
, was based, the chief prosecutor, who was the head trial attorney in the Honolulu office of the U.S. attorney, never interviewed one of my witnesses, whereas I interviewed, or sought to interview, all of his witnesses.

The evidence of mediocrity and incompetence among the main members of the “Dream Team” (again, not the
DNA
lawyers) was ample. Another example: Kato Kaelin testified that around 11:00 p.m. on the night of the murders when he was loading Simpson’s five bags into the limousine for Simpson’s trip to the airport, the smallest of the five bags was at the edge of the driveway. When he walked toward the small black bag to pick it up, Kaelin testified that Simpson told him not to. “I’ll get it,” he quoted Simpson as saying. The limo driver, Alan Park, confirmed Kaelin’s recollection of the incident, testifying he recalled hearing Simpson tell Kaelin: “No, no. That’s okay. I’ll get it. I’ll get it.” It was the only bag Simpson directed Kaelin to stay away from, and the prosecution naturally believed that this was the bag into which Simpson had placed his bloody clothing and the murder knife.

If they were correct in their assumption, which they almost certainly were, it was bad enough for the defense that this small black bag was never seen again. But the defense attorneys, supposedly the best lawyers that money could buy, all by themselves and with no pressure on them to do so, made their problem much worse, spotlighting the missing bag for the jury. With Cochran in charge, they brought five pieces of luggage into court to show to the limo driver and one James Williams, the skycap who had seen Simpson standing by a trash can shortly after the limo arrived at Los Angeles International Airport. They had a golf bag, a Louis Vuitton garment bag, two dark-colored duffel bags, and, yes, a small black bag. But, unbelievably, the small black bag was brand spanking new, and the plastic line to which the price tag had been fastened and the keys were still attached. Cochran and his Dream Team colleagues hadn’t even bothered to remove them in their obvious attempt to trick the limo driver and sky-cap into identifying it as the mysterious missing bag about which Simpson had been so possessive and solicitous on the night of the murders. Because it was such a transparent and amateurish ruse, Judge Ito wouldn’t even allow the defense to show this bag to the witnesses. (They were shown the other four, and although no positive identification was made, the witnesses thought the bags looked similar to those they had seen in Simpson’s possession on the night of the murders. The limo driver had seen five bags, but when the limo arrived at the airport, the skycap only saw three, the prosecution inferring that en route, Simpson had stuffed the small black bag and one of the duffel bags into the larger bags.)

Marcia Clark brought out before the jury, in her redirect examination of Park, the limo driver, that the one bag Simpson wouldn’t let Kaelin pick up on the night of the murders was definitely not among the four bags shown to him by Cochran. The small black bag had previously been mentioned only briefly by Kaelin and Park in their testimony, so the reference to it could easily have been largely forgotten in the raft of testimony and evidence in the case, and there was nothing visual to help underline its importance in the jurors’ minds. But by bringing in the four other bags, Cochran had now shown the jurors, in front of their very eyes, that the defense had considered this a very important issue. The defense had tried to account for all of Simpson’s bags, but had failed to produce for the jury the only bag that counted. Let me tell you. This was brilliant lawyering by Cochran and his Dream Team colleagues, the kind that can only be bought with a million dollars. Someone like a lowly deputy public defender would never have the experience and legal smarts to pull off something like this.

Looking at the performance of the individual defense lawyers, I have to say I was disappointed in Johnnie Cochran, at least up until his final summation. Cochran is an intelligent and seasoned courtroom performer. I expected more of him.

Let’s start with his opening statement. Other than the evidence, nothing is more important to a trial lawyer than his credibility with the jury, because once a lawyer gains the trust of the jury, it is more likely to see the case his or her way. Here, Cochran did something at the start of the case that could only hurt his credibility in the minds of any
normal
jury. The fact that it may not have hurt him with this jury is no defense against the charge of incompetence. What kind of trial lawyer makes an opening statement that caused judge Ito to tell the jury that he, Cochran, was not playing by the rules, that he violated the law? (Cochran referred in his opening statement to the anticipated testimony of fourteen witnesses whose names and statements he hadn’t furnished to the prosecution as required by California’s Reciprocal Discovery Law.)

What kind of trial lawyer makes all kinds of promises to the jury in his opening statement that he has to know, or at least should know, he might not be able to keep? It’s a cardinal rule of opening statements that you don’t bite off more than you can chew, that you don’t promise the jury you will prove something that you might be unable to prove. You must be careful, therefore, in your opening statement so that you don’t have to contradict yourself or retract something by trial’s end. It’s very effective for opposing counsel to point out to the jury in summation at the end of the case that in your opening statement you promised to prove something and you failed to do so. (Darden did this to Cochran reasonably well, and the fact it had no effect with
this
jury doesn’t transform Cochran’s incompetence into competence.) It hurts your credibility with the jury and can adversely affect its perception of your entire case.

Cochran mentioned several witnesses in his opening statement and then chose not to call them at the trial. He said that one Mary Anne Gerchas would testify she saw four men, two Hispanics and two Caucasians, in knit caps leaving the murder scene and speeding away in their car. He said that another witness, Lenore Walker, a Denver psychologist who is a recognized authority on battered woman syndrome, would testify that Simpson did not fit the profile of a batterer. Another, Rosa Lopez (the El Salvadoran maid of a neighbor of Simpson’s), had seen Simpson’s white Ford Bronco, Cochran told the jury in his opening statement, parked in front of his home at the time of the murders, and later heard men’s voices talking at the Simpson estate between midnight and 2:30 to 3:00 a.m. (both sides conceded at the trial that Simpson left his home for Chicago shortly after 11:00 p.m.). Cochran and his colleagues called none of these witnesses during the trial. If, indeed, Cochran ever did intend to call these and other witnesses, what kind of lawyer vouches in his opening statement for the credibility of witnesses who
have
no credibility? What does that say about his
own
credibility?

For instance, quoting the January 27, 1995, edition of
USA
Today
:

bq.

Rosa Lopez, the maid who lives next door to Simpson, is supposed to be able to give the ex-football star an alibi on the night of the murders. But she has a problem. She wasn’t trustworthy enough for the
National Enquirer
. “She didn’t meet our traditional standards of credibility,” said
Enquirer
celebrity editor Steve Cos. “Information she gave us was patently ridiculous.” Defense lawyers say Lopez said she saw Simpson’s Ford Bronco parked outside his house at 10:15 p.m.—when prosecutors say the murders happened—and told that to Detective Mark Fuhrman, who kept the information secret. That’s not what she told the
Enquirer
in repeated interviews, said David Perel, the
Enquirer
’s “O.J. editor.” Perel said Lopez was insistent about two things: She had seen and heard nothing on the night of the murders, and there had been a big party “with a bunch of little boys, friends of Jason (Simpson’s twenty-five-year-old son)” on the night before the murder. “The party story turned out to be false,” Perel said. “She was a very confused lady.”

And Mary Ann Gerchas, it turns out, had had thirty-four lawsuits against her, many alleging fraud and the nonpayment of bills.

Actually, Cochran wasn’t more than ten or fifteen minutes into his opening statement when it was very evident to me that he was a very mediocre criminal defense attorney. I had to chuckle to myself when Cochran told the jurors that they had to base their verdict on the facts and evidence, not speculation and conjecture. Cochran was just talking and couldn’t have thought out what he said, because what he said was a prosecution argument, and in a case like this where there was no evidence pointing toward Simpson’s innocence, it was the worst thing to tell a jury. The only hope and chance the defense had at the time Cochran made his remarkable statement was that the jury
would
base its verdict, not on the facts and evidence, but on speculation and conjecture. I mean, the box containing evidence favorable to the defense in this case was as empty as a bird’s nest in winter.

Also, unbelievably, Cochran told the jury in his opening statement that Simpson’s arthritis was so acute on the day of the murders he couldn’t even deal a hand of cards a few hours before the murders at the Riviera Country Club. But then he went on to tell the jury that Simpson was practicing golf, with those same hands, on the grounds of his estate at the time of the murders. Apart from that inconsistency, didn’t Cochran even know that Simpson had told the limousine driver he was sleeping during this period? And that when the
LAPD
detectives interviewed Simpson on the day after the murders and asked him all the things he did on the night of the murders, he made no reference to either sleeping or playing golf?

Then Cochran told the jury they had to “determine the guilt or innocence of Mr. Simpson,” which is not true: they had to determine whether the prosecution had proved guilt beyond a reasonable doubt. Furthermore, such an articulation is always harmful to the defense, since it’s easier for the prosecution to prove guilt, when the alternative for the jury is innocence, than it is for them to have to prove not just guilt, but guilt beyond a reasonable doubt. The moment Cochran uttered those words I immediately knew he did not even have a firm grasp of the most fundamental rule at a criminal trial: that to convict, a defendant’s guilt has to be proved beyond a reasonable doubt. He obviously understands it, but not well, because if he did, it wouldn’t have been possible for him to utter those words. You can talk about guilt and you can talk about innocence, but never in the context of “guilt or innocence” being the issue for the jury to resolve.