The Search for Justice (49 page)

Scheck was impressive, both in his knowledge of the science and the dogged way he cross-examined a witness until he got what
he wanted. But he was constantly worried that he was falling short, that the jury wasn ’t getting it. “I don ’t like to do
anything less than my best,” he said. “And I ’m not sure this is my best.”

A
s was our custom, Johnnie and I, along with Bob Kardashian and other members of the defense team, often met with O.J. for
a few minutes before he was brought out of the lockup in the morning. While we were there on May 24, Guy Magnara, the sheriff
’s bailiff, came in and announced forebodingly, “The judge wants to see everybody in chambers.”

“What is it?” I asked.

“More jury problems,” he said.

Johnnie and I looked at each other in alarm. When we went into the judge ’s chambers, it was a stone-faced Judge Ito who greeted
us.

“I ’ve just received this letter,” he said.

It was a handwritten, five-page letter on a secretarial steno pad, sent anonymously by someone who described him- or herself
as a twenty-year-old German receptionist for a book agent. The letter-writer had seen Judge Ito on his television interview
with Tritia Toyota and been deeply moved by the story of the judge and his family being interned in the camps during World
War II. This person ’s family had suffered too—we assumed in German concentration camps—and because of this shared connection
he felt with Ito, he believed that he had an obligation to bring a certain matter to the judge ’s attention.

This person claimed to have it on very good authority that a female juror, who had once been an alternate, was negotiating
for a book. The juror ’s husband had been doing the negotiating, an agent had met with both of them at the Intercontinental
Hotel (thus correctly identifying the location where the jury was sequestered), and the book even had a title:
Standing Alone: A Verdict for Nicole.
The letter-writer provided other details that only someone with firsthand knowledge of the case and the jury ’s travails
this far could have known.

In the presence of the prosecution and defense lawyers, Judge Ito spoke with the jurors one by one. After a couple of days
of questioning, he narrowed things down—after all, we knew from the start we were looking for a married woman— until he finally
felt certain that the subject of the anonymous letter was juror Francine Florio-Bunten.

In spite of adamant denials that she was putting together a publishing deal, Florio-Bunten was removed from the jury.

Florio-Bunten ’s consistent denials in the months since she was excused, coupled with rumors that there was a concerted effort
to get her off the jury, have resulted in continuing speculation that someone affiliated with the defense was actually responsible
for the anonymous letter that kicked off Judge Ito ’s investigation. Subsequent to the verdict, she gave interviews in which
she said she would have voted guilty and hung the jury. Whether or not that actually would have happened, there ’s no way
of knowing.

Soon after Florio-Bunten ’s departure, Ito also excused Willie Cravin, the juror who had caused some conflict as king of the
video remote control, and Farron Chavarria. The panel that remained, made up of nine blacks, one Hispanic, and two whites,
would be the jury that would ultimately deliver the verdict.

Collin Yamauchi, a forensic scientist with the L.A.P.D. crime lab, did the initial collection and testing of the reference
blood
samples of O.J., Nicole Brown, and Ron Goldman. Young, inadequately trained, and very defensive, Yamauchi proved a poor follow-up
to witnesses like Sims and Cotton. Barry Scheck ’s cross-examination of him came perilously close (for the prosecution) to
opening up a very nice door for the defense.

While under direct examination by Rock Harmon, Yamauchi had to refer to his notes for his answers. The defense was given the
opportunity to examine the notes, and Scheck quickly spotted the words “alibi—Chicago.”

When Scheck asked Yamauchi what that referred to, he answered, “Yes, I heard on the news that he ’s got an airtight alibi,
he ’s in Chicago, and you know, it ’s his ex-wife and this and that, and he ’s probably not related to this thing.”

Ito immediately barked “Sidebar!”

Section 356 of the California evidence code says that if one side introduces material contained in a statement, the other
side may seek to have the entire statement placed in evidence so that nothing is presented out of context. What Yamauchi had
done was open the door to allowing O.J. ’s first interview with the police—and the audiotape of that interview—to be introduced
to the jury, without subjecting O.J. to cross-examination.

California law allows statements of a defendant to be introduced only if the prosecution chooses to introduce them. In this
instance, we believed O.J. ’s statement would be beneficial to his case; evidently the prosecution agreed, since they ’d fought
long and hard to keep it out. Now we jumped on the opportunity, and Johnnie immediately demanded that the tape be admitted
into evidence.

“But it only goes to Yamauchi ’s state of mind!” Marcia Clark argued heatedly, insisting that it was not the alibi itself,
or O.J. ’s statement about having an alibi, that Yamauchi was referring to.

Judge Ito responded that it was more complicated than that, that Yamauchi, a prosecution witness, had actually raised the
existence of an alibi in front of the jury.

Clark exploded, with angry and harsh language aimed directly
at Ito. It was my belief that if any of the defense team had used that tone (and decibel level), we would ’ve been strongly
sanctioned.

However, as I suspected would happen, Judge Ito found that the jury hadn ’t heard enough from Yamauchi that would mandate
the introduction of O.J. ’s statement, and he ruled that it couldn ’t be introduced.

In an interview in the Sunday, June 4, issue of the
Los Angeles Times
, Chris Darden said, “The case has shaken my faith in the system.… The intense scrutiny of our personal lives is unfair. I
don ’t know if I ever want to try another case… or practice law again.”

When O.J. heard that Judge Ito was going to allow the autopsy photos into evidence as part of Dr. Lakshmanan ’s testimony,
he grew very morose and depressed. He had never seen the pictures, nor had he ever let us describe them to him. Now he knew
he ’d have to sit in court and listen to the descriptions. Judge Ito called us in and told us that the deputies were very
concerned at O.J. ’s appearance and behavior, so they ’d put him on suicide watch again.

Hearing of the deputies ’ concern, O.J. turned to Guy Magnara and said, “I ’m not suicidal! The last time they did this, they
woke me up every fifteen minutes around the clock. They turned the lights on and off all night. If I look awful, it ’s because
these guys aren ’t letting me get any sleep!”

Over the Memorial Day weekend, I had worked on strategy with Michael Baden and Barbara Wolf, who had come into town to help
me prepare for cross-examining the coroner. We read his reports repeatedly and carefully examined the autopsy pictures. “Look
for the unexpected,” Michael instructed me. “Sometimes the more important things are the hardest ones to find.” It reminded
me of Sherlock Holmes telling Dr. Watson,
“I don ’t know what I ’m looking for, but when I find it, I ’ll let you know.”

We ’d learned that the prosecution had decided to sacrifice Dr. Golden; he would not be testifying. Dr. Lakshmanan, the chief
medical examiner, would testify instead. Brian Kelberg would be doing the direct examination. I would be doing the cross-examination.

I was disappointed that I wasn ’t going to get another chance at Golden. An analysis of Golden ’s errors and the testimony
he ’d given under my cross-examination at the preliminary hearing had led Michael Baden to believe there was a possibility
that we ’d be able to get Golden to state that the time of death was shortly after eleven o ’clock on the night of June 12.
Lakshmanan, however, couldn ’t be counted on for that.

Lakshmanan is a highly educated skilled professional who prided himself on being board-certified in several different areas
of medicine, including geriatrics, infectious diseases, and internal medicine. Michael Baden told me that certification in
each area required at least three years of specialized study. “If Lakshmanan had spent those years studying pathology instead,”
he said, “he ’d be a much better medical examiner.”

Since we didn ’t have to go after the hapless Dr. Golden for his errors, the defense was prepared to stipulate to the cause
of death. But we knew the prosecution wanted something more dramatic. They were going to showcase Lakshmanan in order to get
a crime-scene narrative and the autopsy photos in front of the jury.

Brian Kelberg got Lakshmanan to perform a physical demonstration illustrating the prosecution ’s hypothesis of how the two
murders might have been committed.

“Now, Doctor,” Kelberg would say, “could a six-foot two-inch, male African-American have caused these injuries if he was standing
behind an individual?” Then he would proceed to outline a scenario that fit solely within the assumption that O.J. Simpson
was the only possible killer.

I objected. Kelberg ’s scenario, I said, was assuming facts not in evidence. Ito overruled the objection.

Lakshmanan then answered, “Yes, this is consistent with—”

Interrupting, I objected again. What did “consistent with” mean? As Michael Baden would later say, Kelberg ’s scenario could
also be consistent with a five-foot midget standing on a ladder. Ito overruled me once more.

At sidebar, I reminded the judge that whenever Scheck had tried to get “hypotheticals” in, Ito sustained the prosecution ’s
objections, which were the same as mine were now. Why couldn ’t my objections be sustained as well?

“I didn ’t sustain all their objections,” Ito answered.

“You sustained most of them, Your Honor,” I said.

“Well, I ’m not sustaining yours,” he said.

The jury reaction to the photos was reported as being very dramatic, but I noticed something the reporters perhaps did not.
When the photos of Nicole were introduced, many individuals were clearly disturbed and saddened. But when Ron Goldman ’s photos
were shown, the level of emotional reaction went sharply higher. One gentleman took his glasses off and began to cry; two
of the women had tears running down their cheeks.