Outrage (16 page)

What is much more interesting and important, however, is the results of his jury research leading up to jury selection. Vinson said that in discussions with the prosecution team, Clark made it clear she preferred to have black women over black men on the jury, because culturally it is known that domestic abuse is more prevalent in black households than in white families. Her thinking was that black women were becoming more liberated, were fed up with being beaten, would identify with Nicole, and would be angry with Simpson for having brutalized her. (Of course, partially militating against this is the fact that Nicole had started seeing Simpson when he was still married to Marguerite, Simpson’s black first wife, so Nicole had taken Simpson away from a black “sister.”) But the problem is that the polls didn’t show that. In a four-hundred-person phone survey conducted for the prosecution by DecisionQuest of blacks and whites, while 23 percent of black males thought Simpson was guilty, only 7 percent of black women thought so.

More tellingly, Vinson and his staff also conducted several small (fifteen-person) “focus group” sessions to “put some meat and flesh on the statistics,” as he said. In these sessions, the black females, per Vinson, were “more vociferous” in support and defense of Simpson than were the black males. When confronted with the fact that Simpson had beaten Nicole, their basic response, Vinson told me, was that “every relationship has these kinds of problems.” It simply was not a big deal to the black females. Ironically, DecisionQuest’s research showed that black females who were the victims of domestic violence, or had it in their family, were even more forgiving and accepting of it than those who hadn’t.

“My working hypothesis, which I told Marcia and Bill,” Dr. Vinson said, “was that black females were the worst conceivable jurors for the prosecution in the Simpson case. The charts and poll results I submitted to Marcia and the DA’s office clearly reflected this.”

Since Vinson stopped working with the Simpson prosecutors after the second day of jury selection, it is not known for sure whether Marcia Clark disregarded the advice and data provided for her by Vinson or not. But the evidence certainly suggests she did. Having learned that black females did not like her (see following discussion) and were also markedly more sympathetic to O. J. Simpson than black males, Clark nevertheless settled for a jury with six black females on it! There were only two black males. The jury which ended up returning the not-guilty verdict had eight black females and only one black male.

One possibly unfair criticism which has been leveled against the prosecution in this case is that they exercised only ten of their allotted twenty peremptory challenges (challenges for which you don’t have to give a reason). Since a jury with close to 75 percent blacks on it could not be considered a favorable jury, why not use the remaining peremptories to see if you can get a better racial mix, the argument goes. But many times a prosecutor doesn’t use all of his peremptories, even when he isn’t too pleased with the present composition of the jury, because when he turns around and glances at the remaining prospective jurors seated in the courtroom, they look worse than the ones already in the box. Since I have no way of knowing who these remaining jurors were or what they looked like, I have no opinion on the matter. I do find it curious, however, that with ten remaining peremptories, the prosecutors left on the jury the black male who worked for Hertz Rent A Car, the company Simpson had been employed by as a spokesman for years. (The juror was excused by Judge Ito shortly thereafter when evidence surfaced that during jury selection he had failed to disclose meeting Simpson at a party for Hertz employees years earlier.)

Both sides submitted to Ito proposed questionnaires for the jury. (Ito distilled them into one seventy-eight-page questionnaire containing hundreds of questions.) These questions are the heart of a jury consultant’s job, their main area of expertise. Although the defense jury consultant, Jo-Ellan Dimitrius (whom the defense attorneys have credited, in no small way, for their ending up with the jury that heard the case, to the point where Cochran, after the not-guilty verdict, directed his first expression of thanks to her), was highly instrumental in the preparation of the defense’s proposed questionnaire, Clark insisted that she and her team prepare the prosecution’s proposed questionnaire themselves without any input from Vinson’s firm. “Marcia didn’t even want us to provide a draft. She gave me a copy of the prosecution’s eventual questionnaire on the day she submitted it to Judge Ito,” Dr. Vinson told me.

Perhaps most disturbing, Vinson told me that it emerged from the focus groups that black women viewed Marcia Clark “extremely negatively, actually calling her names like ‘bitch.’ They hated her. They saw her as a pushy, aggressive white woman who was trying to bring down and emasculate a prominent black man.” Norma Silverstein, Vinson’s assistant, told me, “black women displayed a lot of hostility toward Marcia.” Clark, Hodgman, and Garcetti knew this, Vinson said. This came out of the first two separate focus group sessions (conducted over a three-hour period, back to back, on the same day in late July 1994). In fact, in two subsequent focus group sessions, Clark, Hodgman, and Garcetti were present, listening in from an adjacent room, and the same harsh sentiments against Clark by black women were expressed.

The focus group members, each of whom was paid $50, were unaware of the presence of the prosecutors listening and watching in the room next to theirs behind a one-way mirror. The focus group members were told, however, that associates of Vinson were watching them, but not who those associates were. In late August 1994, DecisionQuest decided to conduct a mock trial at a hotel in Phoenix, Arizona. However, the trial didn’t take place. “The media got wind of it,” Silverstein said, “and were waiting at the hotel.” So another focus group session was conducted, this time with twenty members. Clark and Hodgman (but not Garcetti) attended this session, watching it by closed-circuit TV from an adjacent conference room. The results were the same. For some reason, black women didn’t like Marcia Clark. This raises the very serious question, of course, of whether Clark, knowing that half the black population (black females) felt this curious antipathy toward her, should have chosen to remove herself from the case. And since she didn’t, shouldn’t the DA’s office, with knowledge of this fact, and with one thousand prosecutors to choose from, have insisted on going forward with a replacement prosecutor? After all, the purpose of this prosecution was not to advance women’s rights and promote their equality in the workplace, but to secure a conviction of someone the district attorney’s office believed was responsible for two brutal murders.

An additional item of information furnished to me by Vinson: From their answers to the jury questionnaire before the case started, of the actual jury that ended up deliberating whether Simpson was guilty or not guilty (as indicated, one black male, eight black females; also, two white females, and one Hispanic man),
not one out of the twelve
read the newspaper regularly, and eight did not watch the evening news on television. After the Simpson verdict, Dr. Vinson and his firm went on to assist the prosecution in jury selection and graphics in the second Menendez trial.

Before I get into the virtually continuous incompetence of the prosecution during the actual trial of this case, I want to talk about what is by far the worst part of their performance, something that goes beyond incompetence. The term incompetence implies conduct that is within the range of known human conduct in a given field. What the DA did in this case, on the other hand, was unprecedented, unique, unheard of.

In all my years in the criminal law, I have never heard of another case where the prosecution decided not to introduce such a
great
amount of very incriminating evidence against the defendant. I mean, that’s what the prosecutor does in a criminal case—present incriminating evidence.

Here, and I still can’t believe this, they never presented the suicide note Simpson wrote when he learned he was going to be charged with these murders. If he was innocent, why would he want to commit suicide? If he was innocent, it seems he would have been outraged that he was being accused of murders he did not commit, and desperately want to prove his innocence and find out who murdered the mother of his two children. Simpson, instead, became completely passive and wrote a “To whom it may concern” letter which reads exactly like a suicide note. (The full text of this letter is in Appendix B.) The language of the letter reeks with guilt. Show me an innocent person charged with murder who would write a note like that.

For those who cling tenaciously to Simpson’s innocence and argue that the reason he wanted to commit suicide is that he couldn’t live without Nicole, consider that Simpson has got to be considered one of the most self-absorbed persons there could ever be, one whose narcissism is of jumbo proportions, and he gives no indication of being the type of person who would kill himself over the loss of another human being. Secondly, such an argument would be diametrically opposed to an integral element of Simpson’s defense to these murders—that he was over Nicole, had started a life without her, and therefore had no motive to kill her. And if that’s not enough, if the reason he wanted to die was that he couldn’t live without Nicole, what conceivable reason would he have had for not saying this in his farewell note? Nowhere does he say or even vaguely imply in the note that Nicole’s death is why he wants to end his life. In fact, in the letter he says that God had brought his current girlfriend, Paula Barbieri, to him, and he tells her how sorry he is that they will not have their chance.

Yet this note, which points irresistibly in the direction of Simpson’s guilt, was never seen by this jury because the prosecutors chose not to introduce it into evidence.

But it gets worse. After the slow-speed chase of Simpson and his friend Al Cowlings in the latter’s Bronco, the police found in Simpson’s possession in the Bronco a gun (there were photos of Simpson during the chase holding this gun, a Smith & Wesson .357 magnum, to his head, and Cowlings, from the vehicle’s cellular phone, told the pursuing police that Simpson was threatening suicide), Simpson’s passport, a cheap disguise (a fake goatee and mustache), as well as four pairs of folded socks, four T-shirts, and two pairs of underwear. Additionally, Cowlings, upon being told to empty his pockets, pulled out a wad of currency totaling $8,750. These items, of course, have guilt written all over them. Indeed, they could hardly be more persuasive evidence of guilt, and it would be insulting to your intelligence to explain to you (as I would have to the jury if I had prosecuted Simpson) why this is so. Yet again, the jury never heard all this evidence because, unbelievably, the prosecutors decided not to present it. Thus far, these are the reasons the DA’s office has given for not introducing all this evidence, including the slow motion chase that led up to the seizure of the evidence. During the chase, Simpson was talking to friends and also his mother on the Bronco cellular phone, and predictably was proclaiming his innocence and denying guilt, and the prosecution didn’t want the jury to hear this self-serving declaration, they said, without his taking the witness stand and being cross-examined. But this is silly beyond imagination. It’s a self-serving declaration that is meaningless.
Of course
he’s going to say he’s innocent. Did they expect him to confess to these murders? More importantly, the jury
already knew
Simpson was denying guilt. They knew he pled not guilty. That’s why they were having a trial. How incompetent could these prosecutors possibly get? You’re going to keep out extremely powerful evidence of guilt such as the passport, disguise, etc., just to prevent the jury from hearing something that they obviously already know?

Just when we thought we were in the cellar of incompetence and couldn’t go any lower, Christopher Darden comes along with his drill. In his book,
In Contempt
, and in a March 20th, 1996, appearance on
Larry King Live
, Darden gives an
additional
reason why the prosecutors didn’t introduce the slow-speed chase and the evidence seized thereafter. What I’m going to tell you is so unbelievable that even though you may be very bright, it will be as if I’m speaking a foreign language to you. That is, it most probably won’t register with you at all without being translated. Darden says that if the prosecution had introduced evidence of the slow-speed chase, “Simpson’s state of mind [during the chase] would be called into question. That meant the jury would hear about Simpson’s sobbing telephone calls to his family, including his mother,” and that Simpson had become “suicidal.” And Darden said the prosecutors feared that Cochran, in his summation, would be able to garner sympathy for Simpson with the jury by arguing: “Look what the police and the DA did. They almost made O. J. Simpson blow his head off.” Darden adds, “not a good move for us.” Translation: “Even though there is a warrant out for my arrest for two murders, I can refuse to turn myself in, and instead try to escape. But if you come after me and chase me, and because of it I start to cry and threaten to kill myself, I’m going to use this against you.”
This
, in effect, is the argument Darden feared hearing. So much, in fact, that he was willing to give up the very powerful and compelling evidence against Simpson of the gun, passport, disguise, changes of clothing and large amount of cash. Unhinged? Delirious? Yes, both of these things, but unfortunately for the people of the state of California, true. This was the mentality of the prosecutors representing the state in the Simpson case. And people wonder why Simpson is out on the golf course with a smile on his face?

With respect to the argument of Cochran so feared by Darden and his colleagues,
even these
defense attorneys in the Simpson case, whose shamelessness and brass were almost unparalleled, wouldn’t have had the enormous cheek to make it. And if, perchance, they did, couldn’t the prosecutors have responded with the obvious? “Wait a minute. Mr. Simpson has a warrant out for his arrest for two counts of murder, and when he tried to escape, is Mr. Cochran suggesting we didn’t have the right to go after him?”