Outrage (10 page)

Garcetti has also said that the January 1994 earthquake in Northridge (the northwest section of Los Angeles County) had damaged the Santa Monica Superior Court building to the point where the case could not have been tried there, but I verified with the administrator of the Santa Monica court that the courthouse had been repaired by the time Garcetti transferred the Simpson case downtown. And the argument he has also made that Santa Monica could not provide adequate security is ridiculous. The courthouse there is already equipped with a metal detector and staffed with security guards.

Nothing, however, is more personally odious to me than the DA’s office saying that one of the factors considered in transferring the case downtown was that the downtown courthouse could better accommodate the media. Apart from the fact that there is just as much space near the Santa Monica courthouse for the TV trailers and their apparatus as downtown, since when is justice not the
only
concern? Since when should justice be jeopardized in any way at all by media considerations? If our society doesn’t take
murder
, the ultimate crime, seriously, what do we take seriously anymore?

Many have said Garcetti wanted the case transferred downtown because his own office is there, and being a politician running for reelection who never met a TV camera he didn’t like, he knew he wouldn’t get the same radio and TV exposure if all the cameras and reporters were out at the Santa Monica court. My guess on this view is that it is wrong.

One reason for transferring the case downtown, which has gained currency among some, is that Garcetti feared that if Simpson was convicted by a mostly white jury in Santa Monica, it might have caused a riot in the black community. But at the time the case was transferred downtown, there wasn’t the slightest hint in the black community of a possible riot over the case. (There
was
, right from the beginning, in the Rodney King case.) Even at the end, when the defense had succeeded in inventing a racial issue in the Simpson case,
LAPD
intelligence reported there was absolutely no indication of a possible riot in the event of a conviction. Garcetti himself has never suggested that the fear of a riot was even one of the reasons for transferring the case downtown.

Another related reason given by some for Garcetti’s transferring the case downtown is that a verdict there would have more “credibility” with the black community than one in Santa Monica. It’s been written in more than one book on this case that Garcetti actually told reporters this. But such a remark from Garcetti to reporters would have unquestionably been mentioned in the local and national media, which it wasn’t. And when I checked with the DA’s office of public affairs, they, too, had no record of Garcetti ever saying such a thing. This reason for the case being transferred downtown was simply one which I believe many people assumed at the time was Garcetti’s motive, and some have apparently come to believe that Garcetti actually said it.

It should be added parenthetically that since Garcetti has been pummeled unmercifully, and to his decided political detriment, for not trying the case in Santa Monica, if either of the aforementioned reasons set forth in the two previous paragraphs had, in fact, been his motive for transferring the case downtown, what conceivable reason would he have for keeping them a secret? Either of the two reasons would have been far more palatable to his constituency than those he
has
publicly given.

You may wonder why I am devoting so much time to this procedural matter. Even with the terribly incompetent handling of this case by the prosecution (see Chapters 4 and 5), since it nonetheless did prove Simpson’s guilt beyond a reasonable doubt, if the case had been tried before
an average
jury in Santa Monica, the very strong likelihood is that the verdict would have been guilty. The Simpson jury was not an average jury. If it was, we should start packing our bags for Madagascar. Our jury system is perhaps the most priceless legacy we inherited from our legal ancestors, the British. The Simpson jury defiled that legacy.

One final point before we get into the next reason for the not-guilty verdict in the Simpson case. Those with a smattering of legal knowledge have assured anyone who will listen that even if the Simpson case had been filed in Santa Monica, the defense would have made a change of venue motion to have it transferred downtown. Such a motion, the argument goes, would have had to be granted by the court, because Santa Monica would not have been a “representative cross section” of the Los Angeles community, which is required by law. But case law suggests that the motion would not have been granted.

In
Williams v. Superior Court
, 49 C. 3d 738 (1989), the defendant, Edward Williams, a black man, was charged with the first-degree murder of one Bruce Horton, a white man. The DA filed the case in Santa Monica (West District), because it was the locus in which the crime had been committed, and the defendant sought to have it transferred to the Central District in downtown Los Angeles on the ground that only 5.6 percent of the presumptively eligible jurors in the West District at the time were black, while 11.4 percent of the presumptively eligible jurors of Los Angeles County were black. Williams argued that the community from which a cross section of jurors should be chosen was the entire county of Los Angeles. The people argued that “the community” means the judicial district. The California Supreme Court accepted the people’s interpretation, affirming a lower appellate court’s ruling denying the defendant’s motion for a change of venue. The court said that “the [California Government] code sections relating to the establishment of superior court judicial districts and the sections relating to jury selection and management are easily harmonized. Read together, the statutes manifest an unmistakable legislative intent
that the courts of the district serve the population within its boundaries
. Use of the superior court judicial district as the appropriate ‘community’ in Los Angeles County effectuates this legislative purpose.” The court also found no federal constitutional limitation on the California legislature’s right to create its own communities for “representative cross section of the community” purposes, adding that having a judicial district serve as a community was particularly appropriate in dealing with “the practical problems posed by a far-flung megalopolis—Los Angeles County.”

If the Simpson case had been filed in Santa Monica, the presiding judge of the county’s criminal courts would have had the ultimate discretion to grant or deny the inevitable defense motion for a change of venue to downtown Los Angeles. But the consensus in the legal community is that he would have denied the motion, not just because of the
Williams
case precedent, but because the presiding judge rarely disturbs the district attorney’s decision on where to file a case in the county. Here, not only did the crime occur in the Santa Monica judicial district, but it is where Simpson lives. Moreover, Santa Monica being a much more affluent area than downtown, those sitting on a jury in Santa Monica would have been much closer, other than in race, to being Simpson’s peers than the jury which ultimately heard the case.

“The case belonged in Santa Monica,” says retired superior court judge Leonard Wolf, presiding judge in Santa Monica from 1986 to 1989. “And to say the case couldn’t have been tried in Santa Monica is simply wrong—it could have been tried there. A number of major criminal cases have been tried in Santa Monica.” Los Angeles County deputy district attorney Harvey Giss, a veteran prosecutor, says, “Anytime you have a tactical advantage, you’re a damned fool to give it up. You argue like crazy to remain in a particular locale if you think it is to your advantage. It’s like baseball. You play your percentages.”

One footnote to all of this. The wrongful-death civil action by the Goldman and Brown families against Simpson which commenced on September 17, 1996, will undoubtedly take several months to try and has been generating considerable media attention. This case is presently being tried in Santa Monica. The Michael Jackson child molestation civil lawsuit two years ago was also filed in Santa Monica. Pretrial motions had already been heard in the Santa Monica court, and, absent the settlement that terminated it, the case was scheduled to be tried there. Another major case that was tried in Santa Monica was the Billionaire Boys Club murder case in 1987, which received extensive publicity and lasted several months. I return to the original statement I made in the
Playboy
interview that when the DA’s office transferred the case downtown it probably just wasn’t thinking of the enormous ramifications of its decision. It was a monumental blunder, one that all by itself was a reason for the miscarriage of justice in the Simpson case.

A
July 25, 1994,
Newsweek
poll, a month and a half after the murders, found that a minuscule 12 percent of American blacks felt that Simpson had been framed by the
LAPD
because of his race. Close to 90 percent of all blacks, then, did not feel that racism was an issue in the case. And the reason they didn’t was that it was obvious to virtually everyone that race had nothing to do with this case. The Rodney King case was a racial case. This was simply a case of a man who happened to be black murdering his former wife and her male friend. Nothing more. Nothing less. Even John Mack, president of the Los Angeles chapter of the Urban League, said (in a statement to reporters on July 17, 1994) he didn’t view the Simpson case as a racial case. Yet near the end, after the defense had fabricated the race issue at the trial, poll after poll showed the majority of American blacks, including Simpson’s jury, felt Simpson had been framed by the police because of his race. A
Los Angeles Times
poll of blacks in Los Angeles County showed that an astonishing 75 percent of them believed Simpson was framed.

The Simpson defense team has been receiving the blame from the American people for fraudulently injecting race into the case. And they deserve all the blame they are getting, and then some. But thus far, Judge Ito has gotten a free ride on this issue. Not here however. I blame Ito 100 percent for allowing it all to happen, for permitting race to be a big issue at the Simpson trial. In considerable part because of it, and because the prosecutors were totally inept at dealing with it once it became an issue, Simpson is now a free man.

It wasn’t as if Judge Ito hadn’t been warned. I thought Chris Darden did an excellent job of forewarning Ito. In a January 13, 1995, pretrial hearing to determine whether the defense should be allowed to ask Detective Mark Fuhrman if he had ever used the word “nigger” in the previous ten years (this was months before the now infamous Fuhrman tapes surfaced) Darden, although overstating his case somewhat, nonetheless made this eloquent appeal to Ito: “[The word ‘nigger’] is the filthiest, dirtiest, nastiest word in the English language. It has no place in this case or in this courtroom. It will do nothing to further the court’s attempt at seeking the truth in this case. It will do one thing. It will upset the black jurors. It will…give them a test, and the test will be, whose side are you on, the side of the white prosecutors [a partial misstatement, since Darden himself is black] and the white policeman, or are you on the side of the black defendant and his very prominent and capable black lawyer? That’s what it’s going to do. Either you are with the man or with the brothers….

“There is a mountain of evidence pointing to this man’s guilt, but when you mention that word to this jury or to any African-American, it blinds people. It will blind the jury…to the truth…it will impair their ability to be fair and impartial…. Mr. Cochran wants to play the ace of spades and play the race card…
but you shouldn’t allow him
to play that card…. It’s the prosecution’s position that if you allow Mr. Cochran to use this word and play this race card, not only does the direction and focus of the case change, but the entire complexion of the case changes. It’s a race case then. It’s white versus black, African-American versus Caucasian, us versus them, us versus the system. It’s not an issue of simple guilt or innocence, or proof beyond a reasonable doubt. It becomes an issue of color. Who’s the blackest man up here? Who are the real brothers?”

(Cochran, naturally, disputed this, telling Ito that it was “demeaning” to the mostly black jury to suggest that “African-Americans, who have lived under oppression for 200-plus years in this country…cannot hear these offensive words. African-Americans live with offensive looks, offensive treatment every day of their lives. But yet they still believe in this country…. To say they can’t be fair is absolutely outrageous.”)

Although Darden clearly overstated his case—the jury’s hearing that a prosecution witness used the word “nigger” obviously doesn’t automatically guarantee, as he suggested, a not-guilty verdict—there can be little question that Ito’s permitting the defense to ask Fuhrman whether he had ever used the word in the previous ten years did, as Darden predicted, change the complexion of the trial. Based on the law, as well as on common sense (which time and time again at the trial Judge Ito showed he had precious little of), Ito should have precluded the defense from introducing race into the case.

First let’s look at the law, which the prosecution argued to Ito, and of which he was already well aware. Section 352 of the California Evidence Code reads: “The court in its discretion may exclude evidence if its probative value [i.e., relevance] is substantially outweighed by the probability that its admission will…(b) create substantial danger of undue prejudice [to the opposing side].”

Although a defendant in a criminal trial has the
absolute
right—under the Confrontation Clause of the Sixth Amendment to the United States Constitution—to cross-examine witnesses against him, the nature and extent of that cross-examination is
not
absolute. Section 352, which is representative of nearly identical statutes throughout the land, provides a limitation on that right. In ruling that the defense could cross-examine Fuhrman on whether he had used the word “nigger” in the past ten years, Ito relied heavily on an obscure lower appellate court case in California,
In Re Anthony P.
, 167 CA 3rd 502 (1985), which held that where an answer to a question has “any tendency in reason” to affect the credibility of a witness, the question has to be allowed, apparently regardless (if we’re to believe the ruling of the court) of Section 352, which the
Anthony
court failed to even mention. But that is not the law in California. (Fuhrman’s using a racial epithet within the past ten years, by the way, wouldn’t even satisfy the
Anthony
test.) For instance, in
People v. Jennings
, 53 C. 3rd 372 (1991), defense counsel sought to impeach certain prosecution witnesses with the fact that they had failed to reveal their incomes as prostitutes when applying for county welfare benefits. The California Supreme Court ruled that because the evidence in question was “only slightly probative of [the witnesses’] veracity, the application of Evidence Code Section 352 to exclude the evidence did not infringe the defendant’s constitutional right to confront the witnesses against him…. The proffered evidence must have more than slight relevancy to the issues presented.”