Outrage (9 page)

There also can be little question that the Simpson jurors unfortunately were the embodiment of what one English barrister said about juries in general, that a jury is “twelve people of average ignorance.” Although it’s hard to imagine how this particular jury could have been too much worse, I have never agreed with this description of juries as a general proposition. I look at juries as representing upward of five hundred years of collective human experience. Also, the knowledge of one juror is the knowledge of all twelve—that is, if one juror, because of experience or insight, sees something in the evidence the other eleven do not, as soon as he or she brings this fact, observation, or inference to the attention of the other jurors, the entire jury profits from the perception. When you look at juries in this light, it is easy to see why they normally reach the verdict called for by the evidence. But in this case, there certainly was no “collective” wisdom. The sum was no greater than the individual parts.

A few examples will suffice. One juror, a seventy-two-year-old black woman who originally had been an alternate, said during the jury selection process that she never read newspapers, magazines, or books. The only publication she subscribed to was the racing form, but she said she didn’t really understand it. This juror, after the verdict, said: “I didn’t understand the
DNA
stuff at all. To me, it was just a waste of time. It was way out there and carried absolutely no weight with me.” Another black female juror felt that the domestic violence evidence the prosecution introduced, showing that Simpson severely beat Nicole and she was in fear of her life at his hands, had no place at the trial. This benighted soul informed us that “this was a murder trial, not domestic abuse. If you want to get tried for domestic abuse, go in another courtroom and get tried for that.” Simpson’s history of physical brutality and violence against Nicole was completely irrelevant, according to this juror. Syndicated columnist Kathleen Parker observed that this juror’s reasoning was “akin to saying obesity is unrelated to eating. If it’s eating you want to talk about, go somewhere else. This discussion is about fat.”

A younger black female juror, we were told by court observers, appeared to be one of the brightest of the jurors. The juror, who had a college degree, was reasonably articulate and had some elementary knowledge of
DNA
. When she appeared on
Nightline
and was asked who she thought was the most impressive witness at the trial, she said she felt Dr. Henry Lee was. When asked why, she pointed out that when Dr. Lee approached the witness stand to testify, he had turned to face the jurors and smiled warmly to them.

So we know the jury was a problem. The seminal question is whether this murder trial had to be cursed with this jury. The answer is no. I don’t think I can discuss the issue any more clearly than I did in my December 1994
Playboy
interview, which was on the stands on November 1, 1994, before the trial started.

bq.

Playboy: You’ve found considerable fault with the defense in this case [referring to my assessment of the defense’s performance at the preliminary hearing as well as the quality of written motions it had filed, etc]. Has the prosecution done anything wrong?

Bugliosi: Actually, the prosecution may have made the biggest error by far in this case—dwarfing anything the defense has done. I have no doubt that the DA and his staff are not prejudiced or antiblack in any way. However, because Simpson is black and every survey shows that blacks are overwhelmingly sympathetic to him, it’s common knowledge the DA’s office fears that blacks may hang up the jury—though the office can’t acknowledge this. If this fear—that the sympathy blacks have for Simpson at this point may override the evidence at the trial—is justified, and I’m not at all sure it is, the DA’s office is responsible for its own problem.

Playboy: How? In what way?

Bugliosi: Well, these murders happened in Brentwood. It’s the practice in Los Angeles County to file a case in the superior court of the judicial district where the crime occurred, in this case, Santa Monica, which is where the Menendez case was filed. In Santa Monica, there would have been a small percentage of blacks in the jury pool. Instead, the DA filed the case downtown, where the percentage of blacks in the jury pool will be much higher, thereby—assuming the DA’s fears are correct—multiplying the likelihood of a hung jury. If the DA tried to transfer the case out of downtown now, there would be an enormous hue and cry that he was prejudiced against blacks. But if he had filed the case where it should have been filed, and where he had every right to file it, who could have complained?

Playboy: Has the DA’s office given any reasons for filing the case downtown?

Bugliosi: Yes, but they are all weightless. A member of the DA’s press office said that the reason was that the Special Trials section handling the case is located downtown. In other words, we’d rather have a hung jury than have our two prosecutors drive an extra fifteen miles each morning. The DA’s office has also mentioned that the downtown court is set up to handle protracted cases and to accommodate the media better than the Santa Monica court. But there is absolutely nothing prohibiting the Santa Monica court from hearing this case. Whatever arrangements that would be necessary to allow this could easily have been made. I think what happened here is that when the DA’s office filed the case downtown they simply weren’t thinking of the ramifications of their decision.

Curiously, to my knowledge, this was the first public criticism of the DA’s office for having transferred the case downtown. The only thing I had seen prior to this was a few one-paragraph newspaper references to the various explanations given by the DA’s office for the transfer, without any accompanying criticism.

Los Angeles County district attorney Gil Garcetti, obviously concerned that I was speaking publicly about an alleged serious error of his, called me on the morning of November 4, 1994, three days after the
Playboy
interview hit the stands. “Vince, I want to congratulate you on a great interview. The only thing I would like to point out to you is the reason this case is going to be tried downtown. I don’t know how it was when you were in the office, but the way it’s been for years now is that once you take the case to the grand jury [there is only one grand jury in Los Angeles County, and it’s located in the Criminal Courts Building near downtown Los Angeles], the case has to stay downtown. [This was an explanation the DA’s office had not given before.] So this case could not have been tried in Santa Monica.”

“Gil,” I told him, “not only wasn’t it that way when I was in the office, but it still isn’t that way. Just because you take a case to the grand jury definitely does not preclude you from trying the case in the judicial district where the crime occurred. If you don’t believe me, call Jerrianne Hayslett [spokesperson for the Los Angeles County Superior Court]. I have already spoken to her and confirmed this.”

At that point Gil immediately retreated and said, “Well, I was under the impression that we were stuck downtown.” A momentous decision like this, and the DA was basing his decision on impressions as opposed to demanding and receiving definitive information from his staff on this very critical issue?

We terminated the phone conversation amiably, without my telling him something which he already knew, and which would only have served to embarrass him further. There are two ways for a case to reach the superior court for trial in the State of California. One is by grand jury indictment (forty or fifty felony cases a year, a fraction of one percent of California cases, proceed this way), and the second is the way 99.9 percent of cases reach the trial level, by the DA’s filing a criminal complaint followed by a preliminary hearing in which the magistrate concludes there is sufficient evidence for the defendant to be bound over for trial. (This, in fact, is the way the Simpson case eventually reached the superior court, after the release of Nicole Simpson’s 1993 911 tape aborted the grand jury proceedings.) I didn’t bother to tell Garcetti that if, indeed, he was operating under the erroneous assumption that once he took the case to the grand jury he was “stuck downtown,” he could have avoided the grand jury completely by simply starting the case with the filing of a criminal complaint out in Santa Monica. And if the case had been tried in Santa Monica, the likelihood of a conviction would have been immeasurably enhanced.

Since the not-guilty verdict, the DA’s office, buffeted by criticism for the loss, particularly for failing to try the case in Santa Monica, has continued to tell an uninformed public that it had no choice but to try the case downtown, and has continually offered new reasons. None of the reasons, except one, have any merit to them. And that reason is not solid. It was known from the beginning that the Simpson case would be a protracted case (called a “long-cause” case in the L.A. Superior Court, meaning a case that is expected to last in excess of one month), and long-cause cases frequently are, indeed, transferred downtown. But they don’t have to be—there is no superior court rule requiring it—and many criminal and civil trials which have lasted far in excess of one month have been tried in Santa Monica and other outlying courts.

One new spin Garcetti has put on the now infamous transfer is that even had the case been tried in Santa Monica, the composition of the jury would not have been any different from that of the jury which actually heard the Simpson case, because such a large jury pool was needed (one thousand prospective jurors) that jurors from the Simpson trial were chosen from the entire County of Los Angeles. He told the
Los Angeles Daily News
on October 29, 1995: “If the case had been tried in Santa Monica you would not have had the normal West Los Angeles jury pool—you would have had most of Los Angeles.” He said the Simpson jury was chosen “from throughout the county.”

Gil, I wrote off your erroneous belief that the case was stuck downtown as being attributable simply to a lack of knowledge on your part. But how can it be you did not even know where the jury pool came from in the biggest-publicity case your office has ever handled? To confirm my memory of events, I called Gloria Gomez, juror service manager for Los Angeles County. She told me that other than the fact that there were a greater number of jurors in the pool, absolutely nothing was different about the recruitment of jurors in the Simpson case. Jurors in the Simpson case were chosen under the “Bullseye system,” a computer program used by Los Angeles County for assigning jurors in all cases. The computer calculates the distance from the courthouse for jurors in the eleven superior court judicial districts of the county, and, she said, “those jurors living outside a twenty-mile radius from the courthouse are not even contacted. Nothing was done differently in the Simpson case.”

The Bullseye system, Ms. Gomez explained, tries to assign jurors in the district who live closest to the courthouse. But jurors can live in a surrounding district as long as their home isn’t located more than twenty miles from the courthouse. In the Simpson case, seven out of the final twelve jurors resided either in the Central District or in areas of contiguous districts with a predominantly black population. None lived more than twenty miles from the downtown court where the case was tried.

Gomez told me there is “no question” that if the Simpson case had been tried in Santa Monica, the racial composition of the jury would have been substantially different. This is so because the percentage of blacks in the Central District (where the case was tried), according to the most recent census, is 31.3 (whites are 29.8), whereas in the West Judicial District (Santa Monica), the percentages are 78.8 white and 7 black.

And despite my informing Garcetti way back in November of 1994 that the case wasn’t stuck downtown because the DA had taken it to the grand jury, and telling him whom he could contact for verification, Garcetti (an otherwise dedicated public servant), to justify his office’s enormous blunder, has continued to tell the public that the die had been cast when the Simpson case was taken to the grand jury. One of the last people he told this to was Katie Couric on NBC’s
Today
on November 1, 1995. So as to make double and triple sure that it was I, not Garcetti, who was correct, on that very same day, November 1, 1995, I called Los Angeles County deputy district attorney Stephen Licker (one of Garcetti’s deputies), who is the DA’s grand jury legal adviser. When I asked Licker if, once a case is taken to the grand jury, it is stuck downtown, he responded, “Oh no, it is common for it to go back for trial to the judicial district where the crime was committed.”

For the purposes of this book, I did not have the time to get the documentation on all the cases that were taken to the Los Angeles County Grand Jury, and after the indictment (as we’ve seen, the Simpson case didn’t even get to the stage of an indictment), the case was transferred back for trial to the judicial district where the crime occurred. But here are a few:
People v. Owen, Galvez, Leno and White
, Los Angeles Superior Court BA#099502, a burglary and rape case, was transferred back to Pomona in 1994.
People v. Guy Bouck
, BA#105867, a murder case, was transferred back to Van Nuys in 1995. In fact, on June 20, 1994,
People v. Salazar
, BA#096515, an eighty-one-count case of burglary, rape, and child molestation, was being presented to the Los Angeles County Grand Jury by Deputy District Attorney Gail Huttenbrauck when to her consternation she was “booted out” by the Simpson case’s coming in. After the Simpson proceedings were aborted, she returned to the grand jury to finish the presentation of her case, and after she got an indictment the case was transferred back to Norwalk for trial.

Wherever I turned, the statements of Garcetti or his public affairs office proved to be either deliberately false or simply in error. The office continues to say that the Santa Monica courthouse didn’t have a courtroom large enough to accommodate the media. Although the Santa Monica courthouse is, in fact, much smaller than the downtown one, the twelve courtrooms are not. Department C, the master calendar court in Santa Monica (where arraignments—pleas of guilty and not guilty—and assignment of cases to trial courts are made), has 104 seats. Department C could have been used as the trial court in the Simpson case by simply transferring the master calendar to another court for the length of the trial. If they didn’t want to do that, Department M, a trial court in Santa Monica, has eighty seats, the same number of seats, in fact, as Department 103 downtown, where the Simpson trial took place.