Outrage (18 page)

Simpson: A week ago?

Lange: Yeah.

Simpson: No. It was last night.

Lange: Okay, so last night you cut it.

Vannatter: Somewhere after the dance recital?

Simpson: Somewhere when I was rushing to get out of my house.

Vannatter: Okay, after the recital? [The recital was several hours before the murders.]

Simpson: Yeah.

The detectives also tell Simpson that in addition to the blood in his car and home they also found blood in the driveway of his home.

bq.

Lange: Well, there’s blood at your house and in the driveway, and we’ve got a search warrant, and we’re going to get the blood. We found some in your house. Is that your blood that’s there?

Simpson: If it’s dripped, it’s what I dripped running around trying to leave.

Lange: Last night?

Simpson: Yeah.

In another part of the interview, Simpson says, referring to his bleeding at his Rockingham estate while getting ready for his trip to Chicago, “I knew I was bleeding, but it was no big deal. I bleed all the time. I play golf and stuff, so there’s always something, nicks and stuff, here and there.” Of course, no one, even a hemophiliac, bleeds “all the time.” Not only isn’t Simpson a hemophiliac, but “nicks” don’t cause you to bleed all over your car and home and the driveway of your home. Moreover, the cut to Simpson’s left middle finger was not a “nick.” It was a deep cut.

To anyone listening to Simpson’s voice on the thirty-two-minute audio, he comes across as having a guilty mind. Most noticeably, there’s a total absence of outrage and resentment, or even surprise on his part, that he’s being considered a suspect in these murders. Also, his rather sluggish inflection certainly suggests no eagerness on his part to participate in the endeavor to find out what happened. If anything, there’s a suggestion that he’s cooperating only because he senses it would look curious if he didn’t. He also seems to be somewhat hesitant, halting, and uneasy in his answers. This lack of spontaneity suggests he was thinking about what was the best answer for him to give. He was also contradictory. For example, when the detectives asked him when was the last time he had driven his Ford Bronco the previous day (June 12, 1994, the day of the murders), he first responded that it was “in the morning,” then immediately changed his answer to “in the afternoon,” then shortly thereafter changed it again to “eight-something, seven, eight, nine o’clock, I don’t know, right in that area.” Additionally, there’s no indication in his voice or his words that he is grieving over what happened to Nicole, or even shocked by what happened. Simpson’s demeanor during the interview is consistent with and fortifies all of the other evidence pointing unerringly to his guilt.

The testimony of the prosecution’s many witnesses (including Pablo Fenjves, a neighbor of Nicole’s, who heard the “plaintive wail” of Nicole’s Akita dog around 10:15 p.m.) places the time of the murders somewhere between 10:15 and 10:20 p.m. The defense witnesses place the murders around 10:30 to 10:40 p.m. So we can conclude the murders occurred somewhere between 10:15 and 10:40 p.m. The last time anyone saw Simpson before the murders was around 9:35 p.m. when Simpson’s houseguest friend, Kato Kaelin, says he and Simpson returned to Simpson’s home after going to McDonald’s for a hamburger. The first time anyone saw Simpson thereafter is around 10:55 p.m., when the limo driver saw a large black figure, who turned out to be Simpson, even by the defense’s own admission, enter the front door of his home. At the trial, the defense presented no evidence attesting to the whereabouts of Simpson between 9:35 and 10:55 p.m., and the murders occurred around the same time, between 10:15 and 10:40 p.m.

This is what we have, then, from Simpson’s tape-recorded interview with the
LAPD
detectives.
From Simpson’s own lips, he admits dripping blood all over his car and home and on his driveway around the time of the murders!
And when they asked him how he got the cut to his left middle finger that caused all the bleeding, he answered: “I don’t know.” That ridiculous statement alone, all by itself, shows an obvious consciousness of guilt. But much, much more important, what is the statistical probability of Simpson’s innocently cutting himself very badly on his left middle finger
around the very same time
his former wife and male companion are brutally murdered? One out of ten million? One out of a million? One out of one hundred thousand? And even if we make that extravagant assumption, when you cut yourself, unless you’re in a frantic, frenzied state—as Simpson obviously was—you stop the bleeding with your hand or your handkerchief and you put on a bandage. You don’t bleed all over the place.

The statement could hardly be more powerful and irresistible circumstantial evidence of guilt, yet unbelievably, the jury never heard the tape because the prosecutors never introduced it into evidence. I hate to embarrass Clark and Darden, who are good people. But a brutal murderer walked out the courtroom door with a smile on his face in large part because of their virtually unprecedented incompetent performance at the trial. As the West Virginia mountaineer said: “No matter how thin I make my pancakes, they always have two sides.” But there aren’t two sides to this issue. Simpson’s statement should have been introduced. Whatever small negative it might have had to the prosecution (and there appear to be absolutely none here, but even if there were, small negatives are not uncommon, sometimes even where a defendant flat-out confesses—e.g., he adds he had been drinking) was greatly overshadowed by its extremely incriminating nature. And whatever reason the prosecutors may come up with to justify not introducing Simpson’s tape-recorded statement, it will be pure, unadulterated claptrap, bunkum, tommyrot, rubbish, blather. There is no
valid
explanation. Whatever they come up with can only be a lame excuse.

What reasons have they given thus far? They wanted Simpson to testify at the trial, they have said, so they could cross-examine him, believing he couldn’t withstand cross-examination. During cross-examination they would, of course, use the statement he gave the police to impeach him if his trial testimony varied in any way from this previous statement. Introducing the statement on their own during their case-in-chief (when they present their evidence), they argue, would have allowed Simpson to get his version of events before the jury without his having to subject himself to cross-examination.

As can be seen from the transcript of the interview, Simpson accounts, though poorly, for his time on the night of the murders, and a source of mine (on the prosecution team in the Simpson case) down at the district attorney’s office told me, “Marcia wanted to be able to argue”—as she did in her summation—“that Simpson couldn’t account for his whereabouts during the subject time.” If the DA introduced the statement, this line of “reasoning” continues, “she couldn’t make this argument because Simpson did account for his time, even though we knew he wasn’t telling the truth.”

This is astonishing nonsense coming from supposedly experienced prosecutors. Anyone knows that in the criminal law, accounting for one’s time means an accounting that can be verified or corroborated by a third party or parties, or at least by documentary evidence, not just the defendant’s word.
Of course
Simpson was going to say he was doing something (something else) at the time of the crime. He wasn’t going to say he was dead between 9:35 and 10:55 p.m. But his version of events, as we have seen, couldn’t have been more incriminating to himself.

There were two fundamental problems with this trial tactic of the prosecutors. Number one, they were taking an enormous risk that Simpson would decide not to testify (which, indeed, is what happened), and at that point it might be too late for the prosecutors to introduce his statement, since during their rebuttal, they would be limited to controverting evidence and testimony offered by the defense during the defense’s case. And if Simpson didn’t testify, the defense could argue there would be no testimony of his to impeach.

Number two—an even more fundamental problem, one that clearly shows me these prosecutors knew very little about prosecuting a criminal case—is that the jury already knew that Simpson had made the statement. On direct examination of Lange and Vannatter before the jury, the prosecutors elicited the information that the detectives had taken a statement from Simpson, but then the prosecutors went on to other matters. At that point, the jurors naturally wondered about two things. One, they wondered what Simpson had told the police, and two, they undoubtedly wondered why the DA wasn’t offering the statement into evidence for their consideration. This couldn’t possibly have been good for the prosecution in the jury’s eyes. And as if that weren’t bad enough, on cross-examination of prosecution witnesses, whenever the defense alluded to the statement in any of its questions, Clark or another prosecutor would stand up in front of the jury and vigorously object to any reference to the statement. That looked absolutely terrible, and has to have hurt the prosecution’s credibility in the jury’s eyes. The jurors have to have asked themselves why the prosecution wanted to prevent them from hearing what Simpson had said.

Above all—and I know they say there are exceptions to every rule, but this rule has no exceptions, and if there are any budding prosecutors reading this book, they can laminate what I’m about to say in their wallets—the prosecution should
always
convey to the jury that as representatives of the people they
want
to present all relevant evidence on the issue of guilt. They should never be put in a position before the jury of trying to suppress relevant evidence. It’s for the defense to try to suppress evidence, not the prosecution. How is it possible the prosecutors in this case apparently did not know this?

So the statement Simpson gave the police—which by itself was enough to convict him—not only wasn’t used by the prosecutors to help their case, but it actually hurt them. Cochran, in summation, could have made so much more than he did out of the fact that the prosecution didn’t want the jury to hear Simpson’s statement. But he did obliquely suggest to the jury what was already very clear to them—that the prosecution didn’t want the jurors to hear it. Cochran told the jury: “We know, according to the testimony in this case, that he [Simpson] talks with Vannatter and Lange once he gets down there. [But]
we heard nothing else about this conversation
. After he makes this statement,
which we haven’t heard
…”

I want to pursue this matter of Simpson’s statement a bit further because it is so very important and, as it played out in the courtroom, so very strange. You’ll have to pay close attention to follow the convoluted reasoning of the prosecution
and
the defense, and if somewhere along the way you began to wonder if you’re hearing about insanity, you are. Keep in mind throughout this discussion that other than the
DNA
evidence, Simpson’s statement to the police was by far the most incriminating piece of evidence against him, extremely helpful to the prosecution and extremely damaging to the defense.

On May 24, 1995, Rockne Harmon, one of the district attorney’s two
DNA
specialists, asked
LAPD
criminalist Collin Yamauchi—in an effort to show that Yamauchi did not have a belief in Simpson’s guilt that could have influenced him in interpreting his initial
DNA
blood analysis in the
LAPD
lab against Simpson—if what Yamauchi had heard in the media caused him to expect what the outcome of his test would be. Yamauchi said he heard in the media that Simpson had been in Chicago at the time of the murders and had an airtight alibi (i.e., that Simpson was innocent). In a sidebar conference requested by Judge Ito, Johnnie Cochran argued, “The people have brought this out, and now we think we have a right to put on Mr. Simpson’s entire statement. They’ve opened the door, Your Honor, with a Mack truck, and we think we can walk through it.” Cochran cited a California Evidence Code section (Section 356) providing that if one side introduces a part of a statement, the other side can present the whole of the statement so that the part that was heard will not be taken out of context. (Ostensibly, then, Cochran is saying he wants to introduce Simpson’s statement, a statement that can only bury his client.) Quoting the
Los Angeles Times
coverage of the court proceedings: “Marcia Clark, her voice rising to a shout, argued heatedly against the statement’s admission”—i.e., Judge, you just can’t let this statement in, this statement that will win the case for us. Earlier, when Cochran was cross-examining Lange, and Cochran began to allude to the statement, Clark had objected so many times (right in front of the jury, of course) that Ito called the attorneys to the sidebar to discuss the issue outside the jury’s presence.

In fact, Cochran thought that Clark was so strident that he said Clark had “become hysterical” in her opposition to Simpson’s statement coming in. Judge Ito ruled that Section 356 of the Evidence Code did not apply here, since what Yamauchi heard was not a part of or included in anything Simpson said to the police on the day after the murders.

Throughout the trial, the defense acted as if it wanted to introduce the statement, this statement which all by itself convicts Simpson. The question is, were they as hopelessly and utterly and completely incompetent as Clark and her colleagues were on this issue? Did they not see how the statement could bury their client? Or, knowing how damaging it was, and knowing also how incompetent the prosecutors were, were they trying to bluff the prosecutors into believing that they truly
wanted
the statement to come in so the prosecutors would reflexively say to themselves, “Well, if the defense wants this, we have to keep it out”? The evidence suggests it’s the latter. Incompetence is very common, but the prosecutors’ type of incompetence was so extreme that I doubt it was shared by the defense in this case. Proof that the defense didn’t want the jury to hear their client’s
entire
statement, as Cochran had originally said, is that when push came to shove and Ito asked for briefs on the issue, the defense asked to have introduced
only
“those portions” of Simpson’s statement to the police dealing with what he was doing at his estate around the time of the murders—i.e., the defense did
not
want the jury to hear about all the bleeding their client admitted to, and the fact that he had no idea how he got cut.