The Search for Justice (13 page)

Getting the grand jury dismissed didn ’t stop—or negate—the effects of Garcetti ’s comments about Menendez, and Clark ’s comments
about O.J. being the sole killer. They had been repeated and reprinted everywhere. Our potential jurors were out there listening
and reading; they had some information already and would gain even more with the televised preliminary hearing, so it was
imperative that our reasonable-doubt counterattack begin there. (Later, the answers we received on the first round of jury
questionnaires indicated that the majority of the pool had seen at least portions of the preliminary and had
already
formed opinions!) The preliminary hearing would be, in essence, nothing less than a battle for the hearts and minds of the
jury pool.

In addition to DNA, the issue I was most focused on was the search-and-seizure procedures of the investigating police officers.
Armed with the L.A.P.D. procedures manual and his own extensive experience, Bill Pavelic began a log that cross-referenced
official procedure with what the police investigators had actually done at the crime scene. Very quickly, he came up with
a damning list: they had failed to notify the coroner in the prescribed time; they had failed to complete individual chronology
reports; they prepared erroneous property reports; they misrepresented the facts in the search warrant affidavit on the
first day of the investigation; they carried forensic evidence from Bundy to Rockingham, rather than taking it to a lab; they
didn ’t secure evidence (Nicole ’s home, O.J. ’s car) in a timely manner; they used the crime scene at Bundy as a staging
area for their investigation, using the phone inside the house to make their calls, and the furniture inside to sit on while
they talked, rather than cordoning it off completely; and finally, of the chronology reports that were completed, not one
was contemporaneous. No one, it seemed, made notes while they looked at their watches. No one had even
looked
at their watches.

Pavelic was irate. As a senior police detective, he had actually been responsible for auditing the department ’s “murder books,”
the step-by-step records investigating officers complete for each case. He well knew what an acceptable level of procedural
error should be; in this case, they were way over their limit. “I ’ve never seen a police investigation so screwed up in the
infancy stage,” he told me. “If there ’s an anatomy of how
not
to do an investigation, this might be it.”

The police report on the way evidence was gathered was written by detectives Tom Lange and Philip Vannatter. A common technique
to avoid inconsistencies is to have one officer write a summary report, based on individual reports; but the proper procedure
is that anyone who does anything substantial is responsible for recording that aspect of the investigation. Mark Fuhrman,
who we later discovered had played a key role in the early stage of the investigation, never wrote a single report. The police
might argue that Fuhrman had been taken off the case within the first hour, once the elite Robbery-Homicide division came
on the scene; however, I would argue that finding a key piece of evidence—the gloves—would certainly qualify as “something
substantial” and require a written report, however brief, from Fuhrman. So why didn ’t he write one?

We knew that four detectives (Lange, Vannatter, Fuhrman, and Phillips) left the crime scene on Bundy at a little before 5:00
A.M
. after only a minimal, almost perfunctory investigation, and then went to O.J. ’s house at Rockingham—either because
they believed that someone there was in imminent danger (according to Fuhrman) or to notify O.J. Simpson of his ex-wife ’s
death and the needs of his small children (according to Vannatter). Fuhrman testified that he was the first detective at the
Bundy crime scene and, because he knew the way to Rockingham, was asked to show Vannatter how to get there. Vannatter, however,
testified that he knew the area well and would have had no trouble whatsoever in getting to Rockingham on his own.

While a personal notification is always appropriate, it was implausible to me that with the entire department brass available,
the only four homicide detectives on a case would leave a crime scene—and let another ten hours pass before the coroner was
called to that scene, which is a violation of state law. Why didn ’t two detectives go to Rockingham and two stay at Bundy?
Why was the department criminalist, Dennis Fung, dispatched to Rockingham first (where no crime was known to have taken place)
as opposed to Bundy (where evidence of a double homicide was everywhere)?

If, as Vannatter testified, O.J. was not then a suspect, why, when no one answered the telephone or the bell at the gate after
ten or fifteen minutes, didn ’t they say “Let ’s go back to Bundy and continue the investigation”? Instead, Fuhrman testified
that he decided to take a walk around the corner and coincidentally saw the Bronco, parked at what he thought was an odd or
inappropriate angle. On further inspection, he said, he saw blood—a minuscule blood spot on the driver ’s door near the handle,
as well as faint blood smears on the bottom of the door. Now, he decided, it was an emergency, so he scaled the fence, opened
the gate for the others, and they all proceeded to inspect the property for hours without a warrant. They discovered O.J.
’s daughter, Arnelle, and Kato Kaelin, in their separate quarters outside the main house. The detectives woke them up, questioned
them, and told Arnelle she had to let them into the house “so they could search the premises.” It ’s here where the notification
explanation quite obviously falls apart.

If, however, the other explanation prevailed—and they believed an additional crime might have been committed or was possibly
being committed that moment at Rockingham, placing its inhabitants in danger—why did they go there without calling for backup,
without bullet-proof vests, without drawn weapons? Why, if they believed that criminals might have been lurking and house
occupants might have been in danger, did they ask Arnelle Simpson, a young woman, to go back into the house first, alone?
Once in the house, why didn ’t the detectives themselves immediately go upstairs? There were any number of rooms and closets
where someone could have been hiding.

Warrants are available twenty-four hours a day, and at night they are frequently granted over the telephone; in fact, judges
are assigned to night duty for that specific purpose. But not until six hours after arriving at Rockingham did the police
finally obtain a search warrant, one based primarily on their contention that Mr. Simpson had “suddenly” gone on an “unexpected”
trip—when in fact they ’d been told quite clearly by Arnelle and Cathy Randa that his trip had been planned for some time.
In fact, they ’d spoken to O.J. in Chicago at that point. They knew where he was; they knew the Chicago police would have
assisted in keeping him from fleeing, or escorted him back to Los Angeles.

And when Fuhrman found that leather glove at Rockingham, wouldn ’t that have been an occasion to share his finding as soon
as possible with all the other detectives? An officer who had just come from a crime scene where one glove was discovered
and then found what looked like its match in a second location—wouldn ’t he have wanted his colleagues to know this immediately?
Why instead did he approach the detectives one by one and take them individually to the place where the glove lay? His behavior
didn ’t pass the common-sense test.

In addition, although Vannatter testified that O.J. ’s Bronco (which had been parked on the street) had been secured by the
police at 7:00
A.M
., our own investigation revealed coffee stains on the hood of the car as a result of the press gathering around
and leaving their cups on it. Not only had the car not been correctly secured, it apparently took on the public-access status
of a park bench. We even had a video of someone—not a police officer—touching the door handle on the driver ’s side as the
car was being towed to Viertel ’s, the police-authorized towing service. An employee from the towing service, John Meraz,
was later to testify that not only did other employees get in and out of the Bronco (in an odd sort of curiosity-seeking behavior),
but he himself took credit-card receipts from it, receipts that had been signed by both O.J. and Nicole. The lax security
conditions and easy access to the Bronco lasted for nearly three months.

So what was their story? Did four homicide detectives leave a crime scene to notify an ex-spouse (who was not, in fact, the
next of kin to the murdered woman) of those murders? Did they rush to Rockingham to save its inhabitants from harm? Or did
they rush to judgment, deciding among themselves in those early dawn hours that O.J. Simpson was the primary suspect and therefore
it didn ’t matter which came first, the evidence or the warrants? It was the old police shell game: The pea ’s under here;
we know it, and it doesn ’t matter how we get it.

Ironically, if the detectives had said from the very beginning that they believed O.J. was a suspect and they were in hot
pursuit, such an opinion would ’ve been sufficient to allow their entry onto the property without a warrant. Instead, unwittingly
or not, they built a web of lies, with Mark Fuhrman at its center. And then they got caught in it.

The criminal process is divided into two general areas: factual issues and legal issues. Factual issues are determined by
a “trier of fact,” which can be either a judge or jury. Legal issues are determined only by a judge. These are not “technicalities”
or “loopholes.” They are constitutional rights.

Prior to the preliminary hearing, Gerry Uelmen, Sara Caplan, and I prepared and filed a motion on Wednesday, June
24, stating that the thirty-four items of evidence taken from Rockingham were gathered in violation of O.J. ’s Fourth Amendment
right of protection against illegal search and seizure, and therefore should be inadmissible. In raising the admissibility
of the evidence, we were challenging the validity of the warrants but not the credibility of the officers; that would be saved
until later. Los Angeles municipal judge Kathleen Kennedy-Powell stated that she would hear defense and prosecution arguments
and rule on the motion the following week.

The law in California allows us to raise search-and-seizure issues only once; thus if we raise them at a preliminary hearing
in municipal court, we can ’t raise them again in superior court. So caution—and strategic planning—generally dictate that
motions be made later rather than sooner. And the reality is that judges generally apply a lighter constitutional standard
as evidence becomes more important to the prosecution ’s case and thus harder to exclude. For example, if under the same set
of circumstances either a small amount of marijuana is found or a murder weapon is found, a judge might be inclined to grant
the defense an illegal search motion for the marijuana (therefore not allowing it into evidence), but he wouldn ’t be likely
to do the same for a murder weapon, given the negative consequences to the prosecution.

I decided to hold off litigating the credibility of the search warrants themselves until we got to superior court, to the
trial. This turned out to be the right decision, because even though Judge Ito ultimately upheld the warrants, he also found
that Detective Vannatter had exercised a “reckless disregard for the truth” when he procured them. That ’s harsh on-the-record
language, and it certainly went to the credibility of one of the lead detectives in this investigation.