Outrage (67 page)

Roderick Hodge, a black, testified against Fuhrman:
It was not elicited on direct examination or cross-examination that Hodge was arrested by Fuhrman and his partner on a drug charge, and was subsequently acquitted.

District Attorneys “Roll Out” program:
To Johnnie Cochran’s credit, in his brief tenure at the DA’s office, 1978–80, he was one of the moving forces behind the creation of the roll-out program. (It has since been discontinued, in 1995, for budgetary reasons.)

DA’s Special Investigations Division rolls out to scene of crime, but never finds criminality by police:
Because I know the Special Investigations Division of the DA’s office, for all intents and purposes, never prosecutes police brutality cases, I was surprised when Darden, in his summation to the jury, said, “I spent seven years prosecuting bad policemen.” Just on the possibility that I was wrong and Darden had been prosecuting police without me or anyone else knowing about it (perhaps in the middle of the night, with only the goblins as witnesses), I called two current deputy DAs who worked alongside Darden between 1987 and 1994, when Darden was in
SID
. They both told me Darden only prosecuted one case in seven years, and it wasn’t a police brutality case. It was the “39th and Dalton Street” case, a 1990 misdemeanor prosecution (unsuccessful) of several
LAPD
officers for physically trashing a duplex apartment house searching for drugs. And yet the
Los Angeles Times
said Darden “has long experience in
prosecuting
police officers.”
Newsweek
called Darden a “cop-busting DA.” Jeffrey Toobin, in
The New Yorker
, said “Darden spent [seven] of his fifteen years as a deputy district attorney
prosecuting
corrupt police officers.” Why? Because he was in a section that was “supposed” to prosecute bad cops. Whether he actually did or not was an irrelevant question to these reporters. For all I know, Darden may have wanted his office to prosecute more bad cops then they would. And he was, I’m told, instrumental in getting his office to file murder charges in 1993 against an
LAPD
officer, one of the few such prosecutions in Los Angeles history. But he himself only
investigated
bad cops for seven years, not
prosecuted
them. As he knows, it was almost unheard of for his office to do the latter.

Vannatter doesn’t want to admit on stand he viewed Simpson as “a” suspect:
It would have been perfectly normal for Vannatter and his colleagues to have viewed Simpson as “a” not “the” suspect at the time they went to Simpson’s Rockingham estate in the early-morning hours of June 13, 1994, since the husband is almost always a suspect when a wife (or here, a recently divorced wife) is murdered. Vannatter should have said that, and then added that Simpson wasn’t “the” suspect when they went over the wall at Simpson’s estate. (The detectives testified they went over the wall because of a combination of reasons: what they had just seen a short distance away at Bundy; they saw a spot of blood above the driver’s door handle of the Bronco; the vehicle appeared to be hastily parked outside Simpson’s residence; no one answered the intercom buzzer or regular phone inside the residence even though the detectives saw lights on upstairs and downstairs; there were two cars parked on the driveway inside the gate; and Westec, Simpson’s private security firm, had told them there was a live-in maid who should be inside. In their minds these were “exigent circumstances” causing them to go over the wall without first securing a search warrant, since they didn’t know if there was anyone inside dead or seriously hurt.) But Vannatter, instead, told Shapiro on cross-examination that in his mind that night, Simpson was no more of a suspect than he, Robert Shapiro, was. Although that is possible, it’s not too believable, and the jury has said they did not believe Vannatter.

Both the judge at O. J. Simpson’s preliminary hearing (Kathleen Kennedy-Powell, who impressed me) and Judge Ito ruled that the four detectives’ conduct that night did not violate Simpson’s rights under the Fourth Amendment to the United States Constitution, which prohibits “unreasonable searches and seizures.” Ito did say, however, that Vannatter had been “reckless” with some of the facts in the affidavit he prepared seeking a search warrant later in the day.

Many of the legal pundits and commentators on the Simpson trial believed that judges Kathleen Kennedy-Powell and Ito erred when they ruled that the warrantless entry by the
LAPD
detectives onto Simpson’s Rockingham estate was not violative of Simpson’s Fourth Amendment rights. In Alan M. Dershowitz’s book,
Reasonable Doubts
, he says that “Judge Ito…shut his eyes to the obvious violation of Simpson’s Fourth Amendment right to be secure against unlawful searches and seizures.” These commentators, including Professor Dershowitz, go on to say that if either Judge Kennedy-Powell or Ito had ruled that the detectives, in going over the wall at Rockingham, had acted unreasonably, and hence had violated Simpson’s Fourth Amendment rights, all of the evidence seized inside the estate (e.g., Simpson’s blood drops on the driveway and foyer, the bloody right-handed glove, the bloody socks at the foot of Simpson’s bed, etc.) would have been the product of an unlawful search and hence excluded from evidence. But I’m not at all sure about this. What about the “inevitable discovery” exception to the “fruit of the poisoned tree” doctrine as enunciated in the 1984 U.S. Supreme Court case of
Nix v. Williams
, 467 U.S. 431? This exception provides that if the very same evidence could have been obtained
later on
by lawful means, then even though the original search was unlawful, the evidence seized still comes in. Here, based on the blood the police saw above the driver’s door handle of the Bronco (which they saw independent of their search of the premises), the fact they observed Simpson to have a deep cut on his left middle finger when he returned from Chicago a few hours later, and most importantly, the very next day preliminary
PCR
DNA
tests showed that Simpson’s blood was found at the Bundy murder scene, it would clearly seem that under
Nix v. Williams
the police would have had more than enough probable cause to get a search warrant allowing them to seize the same evidence.

“…Simpson case received a vastly disproportionate amount of publicity”:
The case received more available media coverage than any other case since the Lindbergh kidnapping-murder case in New Jersey in 1935. Perhaps third in terms of media coverage was the Manson murder case in 1970–71.

Media generates interest in case by blanketing the news with case:
There are, of course, plenty of precedents for such a firestorm of interest created by media coverage, which doesn’t make the phenomenon one bit less depressing or scary. A good recent example would be the war in the Persian Gulf. In the course of just four months the Bush administration, with the help of the media, managed to transform the country of Kuwait, a place many Americans had never heard of, with a nasty, repressive government that had no particular history of friendship towards the United States, into a sentimental favorite of popular imagination, and we were caught up in a seductive riptide of patriotic support for intervention that resembled nothing so much as the fervor surrounding a World Series or a Superbowl.

The “entire nation” was tuned in to verdict:
National figures released by the A. C. Nielson Company reflected that an incredible 91 percent share of the viewing audience was tuned in. And a survey commissioned by
CNN
found 142 million Americans listened on TV and radio to the verdict.

Simpson is the most famous murder defendant in American history:
In 1921, Fatty Arbuckle, the silent screen star second only to Charlie Chaplin in comedic fame at the time, was charged with and, after two hung juries, acquitted of manslaughter, not murder.

“…substantially mitigating circumstances”:
E.g., mental illness, heat of passion. For instance, in a heat-of-passion killing, you don’t deceive the jury by arguing that your client never committed the homicide when you know he did. You concede guilt, but argue it’s voluntary manslaughter as opposed to first-degree murder.

Are blacks more racist than whites?:
After all, polls showed that 88 percent of the white population disapproved of the not-guilty verdict in the first Rodney King trial, where the victim was black and the acquitted defendants were white.

“…the verdict may have set race relations in this country back thirty years”:
A
USA
Today
-
CNN
national poll on October 3, 1995, the day of the verdict, found 57 percent believing that the verdict would hurt race relations.

Johnnie Cochran exploited black community:
An additional irony here is that Cochran, unlike Simpson, has not forgotten his roots, and has an admirable history with the black community, among other things being a generous financial supporter of black causes.

“The not-guilty verdicts called up memories of the Deep South in the last half of the nineteenth century and the first half of this century…”:
Under the double jeopardy clause of the Fifth Amendment to the United States Constitution, in the absence of a mistrial or reversal of a conviction on appeal, one can never be prosecuted again for the
same crime
. This literally means that after the not-guilty verdict in the Simpson case, even if Simpson had stood up in open court, confessed, and laughed at the jury for being such fools, he still could not be prosecuted again. The only arguable exception to the double jeopardy prohibition, and it’s a constitutionally dubious one, is if the defendant is a public official, such as a police officer. Because white juries in
state
courts during the Reconstruction era in the South following the Civil War were consistently acquitting white police officers charged with brutalizing black people, in 1878 the federal government enacted a law to provide some measure of justice for the victims, allowing the prosecution of the acquitted officer, in a
federal
court, for violating the victim’s civil rights “under color of law.” The second prosecution was for the identical incident, but the double jeopardy prohibition was circumvented by changing the crime charged. Instead of murder or felonious assault (first prosecution), the crime charged in the second prosecution was violating the victim’s civil rights. The current federal statute providing for such prosecutions is Section 242 of Title 18 of the U.S. Code, and was the one under which the four acquitted white
LAPD
officers in the first Rodney King trial were subsequently prosecuted (two were convicted) in a Los Angeles federal court.

Jury service should be more mandatory:
Virtually everyone is called for jury duty, but relatively few ever serve. Here are some of the funny reasons offered for not wanting to serve culled from the files of the Los Angeles County office of the jury commissioner: “I cannot serve. My heart stopped.” “I have the dizzy flu and I fell on my head. Now hopefully I will be better soon.” “Glad to serve if I could get a ride to Los Angeles County from Folsom State Prison.” “I am one who has lost all my hair and I need a full wig. I cannot be in an enclosed room for any length of time because of the extreme heat.” “I cannot serve. I am under my doctor’s car [sic].” “I watch hummingbirds for a living, and the hummingbirds are hatching at this time of the year.” “I cannot serve. My poodle is in heat. The dog downstairs is a mongrel and I am afraid he will get to my poodle.”

Some suggest eliminating the need for unanimous jury verdicts in criminal trials:
In 1972, the United States Supreme Court ruled that the U.S. Constitution does not require a unanimous verdict in a criminal jury trial. Earlier, in 1970, the Court ruled that the Constitution does not even require that a jury in a criminal trial be made up of twelve people. Today, Arizona allows an eight-member jury, Florida a six-member jury in noncapital cases. In a 1978 Georgia case, however, the United States Supreme Court disallowed a five-member jury as violating the Sixth Amendment right to a jury trial.

“…this well-known ditty”:
In fact, the evidence in the case was that Lizzie’s stepmother had been struck twenty-one times and her father ten.