The Search for Justice (26 page)

The information came as no surprise to Barry Scheck and Peter Neufeld. “Bad science puts good people away all the time,” Barry
said.

At the time the column was published, we had been assured by the prosecution that all the blood samples for DNA testing had
been sent to the Cellmark laboratory in Maryland. However, we discovered that a small portion, two drops, had been retained
by the police department, ostensibly so that the prosecution could submit it at a later date to a second laboratory for a
second set of diagnostic tests—because, Peter Neufeld suggested, some of the sample material had deteriorated to such a degree
that it was no longer fit for testing. The prosecution had originally told us that there wasn ’t enough sample material to
share with the defense, yet evidently there was enough for the police to retain for “backup” testing. In a pre-trial hearing
called to resolve pending DNA and discovery matters, Marcia Clark stated adamantly that she wasn ’t aware that material had
been retained.

“It seems very bizarre to me that the lead prosecutor in the case does not communicate with the laboratory charged with handling
essential evidence in the case,” I said.

Dean Uelmen then accused the prosecution of playing the old shell game. “What we ’re dealing with is an attitude problem,”
he said. “The attitude is they own the evidence, and when they ’re through with it, we can have whatever scraps are left over.”

“Hysterical proclamations and hypocritical ramblings,” was Clark ’s response.

In late August, Uelmen, Scheck, and Neufeld laboriously argued that the collection and subsequent handling of the blood samples
had been compromised, possibly even contaminated, by the inefficiency of the police crime lab personnel. To support this argument,
the pre-trial information they managed to elicit—from such witnesses as criminalist Dennis Fung, Gary Sims, the DNA specialist
and criminologist with the California Justice Department, and crime lab assistant director Michelle
Kestler—was so minute and technical (and, we nonspecialists later had to admit, tedious) that Judge Ito grew irritated with
the pace, snapping at Neufeld three separate times in an effort to speed up the questioning. “Move on to something that has
to do with the size of the samples!” he said. Later Neufeld turned to me, saying, “Only I could come out from New York and
immediately put everyone on this case to sleep.”

The second day of the hearings, I joked that the scalpers were losing money. Visitors were walking out of court, three reporters
in the front row were dozing, and O.J. was struggling to keep his eyes open, too. “This is cruel and unusual punishment,”
he joked in a stage whisper. “Any more of this and I ’ll wish I
had
killed myself.”

However, the scientific evidence was as crucial as it was boring. It allowed us to learn how bad the L.A.P.D. criminal lab
personnel had been in the collection and preservation of the blood evidence—which later allowed us to challenge the evidence
itself.

Nevertheless the scientific testimony threatened to put us all to sleep—until suddenly I heard an odd piece of information:
that when O.J. ’s blood sample was drawn at the police department a little after 2:00
P.M
. on June 13, Detective Vannatter “took it back to Rockingham and at 5:20
P.M
.
he gave it to Dennis Fung
.” Wait just a minute, I thought. What ’s this detective doing walking around for what sounded like three hours or more with
a suspect ’s blood sample in his pocket? The blood was drawn at the police department. Why didn ’t it go directly to the evidence
unit or the crime lab just three minutes away?

On August 26, Judge Ito finally ruled that the prosecution was not obliged to share blood samples with the defense. Nor did
he find significant fault in their dealings with us. Ito said that the prosecutor ’s handling of blood evidence was “a picture
of confusion, miscommunication, and noncommunication between the prosecutors, the attorneys, and the Los Angeles Police Department.
Such conduct, while less than exemplary, does not rise to the level of bad faith or misconduct.”

O.J. was irate about an August cover story in
Newsweek
on his alleged “dual life.” There were allegations of drug use and orgies throughout. They even showed a picture of him alone,
watching a white stripper, but they cropped it to give it a more negative inference. “It was my birthday party!” he stormed.
“Nicole threw the party, she hired the stripper, and there were 250 other people there!”

There was also a somewhat disparaging reference to his beloved golf game, and to his membership in a predominantly white country
club. “I thought it was supposed to be about progress,” O.J. said. “It ’s like I ’m not even supposed to be playing golf,
like golf is a ‘whites only ’ sport. I thought being one of the first blacks to get in someplace meant progress, meant equality.
I thought breaking color barriers was a good thing. I remember when Sidney Poitier was the first black member at Hillcrest,
and Gene Washington got into the L.A. Country Club. It was a big, big deal. Like Jackie Robinson in baseball.”

He was essentially taken to task for not contributing to black causes, yet I knew for a fact that he was a longtime major
contributor to two charities. His habit of keeping this information private was now working against him. And what really made
him angry was the not-so-veiled criticism of the way he spoke—the inference that by working to improve himself, he ’d ended
up “talking white.”

“Do people get on Julian Bond or Bryant Gumbel for the way they speak? Bob, did you know that Sir Laurence Olivier kept going
to a speech coach way into his eighties, just to keep improving his diction? It ’s like I ’m too black for half these people,
too white for the other half.”

A
s the September 19 date for the trial approached, the competition among the prime-time TV newsmagazine anchors to book Simpson
case guests began to resemble the NFL draft. “So-and-so ’s got the Brown parents!” “So-and-so ’s got the Brown sisters!” “So-and-so
’s got Arnelle and Jason!” Every day we were receiving phone calls from various network producers who were updating the O.J.
sweepstakes, trying to “get” me.

I was heeding Ito ’s order, as well as my own vow, not to give any interviews until the trial was over, but that didn ’t mean
that I couldn ’t interview
them
while they were trying to interview
me
. As a result, I had some fascinating conversations with a number of respected television reporters, men and women whose work
I had long admired or recently come to know through our ever-expanding video archive collection.

Television can be a seductive medium, and the people in it are skilled persuaders. When someone you ’ve seen on TV calls and
asks you for an interview, you think it ’s a pretty important day. When ten nationally recognized journalists personally call
you at home, you ’re now completely convinced that not only is it an important day, but that you are the very center of that
importance. They never state outright that
they want to know
something;
rather, they charmingly suggest that it ’s vitally important that “your views should be told.”

The topper came the night I met with Connie Chung and her producer for drinks at her hotel. Clearly, what she wanted was an
interview with O.J. or me. Connie is a charming, elegant, and quite funny woman, and it was a thoroughly enjoyable evening.
There was some talk about the law in general and some observations about the Simpson case—the issues that would be addressed
at trial, the way it was being covered in the news. I was as curious about how these people did their business as they were
about how I did mine. I was fascinated by the powerful effect they had on our culture, and even more fascinated by the way
they continued to work the O.J. story.

At the end of the evening, the three of us said our good-nights, with hugs all around. A few minutes after I had left the
hotel I realized I had left my cell phone behind. I went back inside and called Connie from the lobby to ask if she ’d picked
it up. “I ’m so glad you called, Bob,” she said cheerfully, and then delivered the best line I ’d heard since the case began:
“I just spoke to my husband. He gave me permission to sleep with you—in exchange for an exclusive with either you or O.J.”

Laughing at the joke, I declined what I called her “very kind offer.” As I drove home, I thought to myself, if this had been
the real thing, a good negotiator would have asked which would ’ve come first, the interview or the sexual favors.

Because it had been our decision not to waive any time, we knew that the trial would begin before the prosecution had even
commenced testing the majority of the DNA evidence—which was unprecedented. When we received word in late summer that the
prosecution ’s preliminary DNA testing on two of the blood spots at Bundy had come up positive for O.J. ’s blood group, I
knew that the experts on our team would have to do as I had suspected early on: challenge the methodology and competency of
the L.A.P.D. lab technicians.

When attorneys wish to present scientific or forensic information as evidence, often a hearing must be held before the judge
and outside the presence of the jury. In this procedure, called a Kelly-Frye hearing, lawyers on both sides argue for and
against the acceptability of particular evidence—that is, the degree to which it is accepted within the scientific community
and the legal precedents that may exist for its use in trial. The judge weighs the arguments, rules on the admissibility of
the evidence, and then sets the parameters within which the evidence can be presented to a jury. In the Simpson case, we anticipated
that the Kelly-Frye hearing on DNA evidence might be held in early September. However, on the last day of August, Marcia Clark
announced that the prosecution wouldn ’t be ready for the hearing until some time after jury selection was completed, which
at that point we figured would take at least a month.

When he heard this, O.J. realized that the trial itself probably wouldn ’t begin much before the holiday season, and he broke
down and cried at having to once again adjust his dream of being home with his kids. Almost everyone on the defense team had
at one time or another represented clients who had waited a year or more before their trials were held. Long delays, due to
factors such as crowded court schedules, pretrial hearings, and frequent continuances, were common. We knew it wouldn ’t help
matters to tell our war stories to O.J. We could only comfort him, and counsel him to try to be patient with the unwieldy
process. (Ultimately, the defense team would decide to waive the Kelly-Frye, and agreed not to challenge the admissibility
of the prosecution ’s DNA evidence.)