Outrage (20 page)

There was, of course, the typical incompetence that one sees in the great run of prosecutors and trial lawyers in general—inadequate preparation. For instance, the prosecutors in the Simpson case did not prepare some of their witnesses for cross-examination nearly as well as they should have. Take Dennis Fung. Fung admitted to me there was no such preparation of him by the prosecution. “We were just caught off-guard,” he said.

Indeed, it was clear that they didn’t even put in enough time preparing themselves and their own witnesses for
direct
examination. Just one example: Clark, trying to establish that Officer Robert Riske, the first officer at the Bundy murder scene, had preserved the integrity of the crime scene for the arrival of the police technicians, asked Riske rhetorically about his training in securing crime scenes at the police academy. Riske’s answer, which stunned Clark: “They kind of glossed over it. They don’t really train you.”

The glove demonstration, of course, we all know about. Many feel it was the pivotal point in the trial, from which the prosecution never recovered. This, from the June 26, 1995, edition of
Newsweek
: “It was either one of the greatest acting jobs of all time (by an actor of limited skills), or one of the biggest bungles ever committed by a district attorney’s office. Or it may be both. But last week…as O.J. Simpson poked and wormed his hands into the infamous bloody gloves…he seemed to wiggle his way a bit closer to being a free man.”

“Too tight” (some newspapers reported the words were “They don’t fit”), Simpson said loudly enough for the jury to hear as he
seemingly
struggled to tug the leather gloves over his broad palms.

In
Madam Foreman
, Simpson juror Carrie Bess writes: “When I saw that demonstration, I thought, why in the hell didn’t the prosecution try that glove on somebody else that had the same size hands as O.J. before they allowed him to get out here and do this? I was sick when I saw they didn’t fit because I just thought for sure that they were going to fit.”

It is, of course, astonishing that the prosecutors would ask Simpson to try on, before the jury, the left-hand glove found at the murder scene and its right-hand mate found on the grounds of Simpson’s Rockingham estate without knowing,
for sure
, they would fit. You simply don’t take an enormous gamble like that at a trial, particularly when there is no pressing need to. I doubt if a first-year law student would so recklessly roll the dice. Certainly the defense was not putting pressure on the DA to have the demonstration. And it wasn’t as if the prosecutors didn’t know there could be problems. In fact, in the sidebar conference shortly before the glove demonstration took place in front of the jury, Clark said: “The only problem is, he has to wear latex gloves [worn to prevent contamination of the evidence gloves] underneath…and they’re going to alter the fit.” (The other problem, it turned out, was that because portions of the gloves had been soaked in blood and left to dry, they had shrunk. Also, the gloves, undoubtedly Simpson’s, had been worn by him in the rain and snow covering
NFL
games, and when left to dry, some shrinkage would have been inevitable.)

At that sidebar, Darden only asked the court to permit a glove demonstration with a
new
pair of the subject gloves, not the evidence gloves themselves, and Ito had overruled Cochran’s objection, merely making the passing observation that it might be “more appropriate for him [Simpson] to try the other gloves [the evidence gloves] on.” When the sidebar ended, there was no indication whatsoever one way or the other what the prosecution was going to do. Court reporter Janet M. Moxham, who was present, told me: “Chris [Darden] didn’t want to have O.J. try on the evidence gloves, but a few minutes after the sidebar Marcia whispered something in Chris’s ear and Chris almost immediately asked for the demonstration. It took everyone by surprise. It was Marcia’s idea, I’m sure.”

However, Darden has always been the one whom everyone criticizes for the demonstration since it was he who asked for it. And whether it’s because chivalry among men for women (Darden for Clark) isn’t dead in America or what, he has always accepted full responsibility for the blunder, never indicating that blame should be placed elsewhere or shared. But not only was Marcia Clark with him while all this was going on, she was the chief prosecutor, and therefore the reasonable assumption is that he acted with her knowledge as well as consent. As indicated, the court reporter goes further and fixes the blame on Clark. But whoever is to blame, it was a disaster, and although the prosecutors put on evidence to mitigate the damage (the evidence gloves had shrunk, though this was disputed by the defense; the new gloves, which were the same as the evidence gloves in style, make, and size, were eventually used in a demonstration, and fit Simpson well, etc.), the vivid memory etched in the jury’s mind was that the gloves they knew the killer used did not fit Simpson comfortably—he was not able to extend his fingers fully into the tips of the gloves. “In plain English,” Simpson juror Brenda Moran told reporters after the verdict, “the gloves didn’t fit.”

But should these very same gloves have fit Simpson properly? Perhaps forgetting he was still onstage, Simpson did in fact slip these same gloves
off
his hands quite easily, a fact which Marcia Clark noted to the jury in her final summation. And that gets us into perhaps an even more fundamental error committed by the prosecution team with respect to the glove demonstration. I have seen no mention of this elsewhere, but I was shocked the moment I saw it.

The prosecution took the position that even though the gloves had shrunk and even though Simpson was wearing latex gloves, they still would have fit Simpson if Simpson had not prevented the fit by the way he positioned his hands and fingers. Darden said Simpson faked it. “Could we ask him to straighten his fingers and put them in the gloves as one would normally put them in the glove?” Darden asked sarcastically during the demonstration. And Clark, in her summation, told the jury that the gloves did fit, but Simpson “didn’t want to show” that they did.

Well, the gloves were very important pieces of evidence in this case. And you don’t turn over any evidence in any case to the defendant, of all people, and have
him
tell
you
whether there’s a fit or match. That’s ludicrous. You have a third party put the gloves on him, feeling Simpson’s hand and fingers along the way to ensure he doesn’t do anything to inhibit the fit. Say, for example—and this isn’t an exact parallel—a gun is found on the defendant’s person or in his home and the police believe it may be the murder weapon. They test-fire the gun, and with a comparison microscope see if the markings or striations on the test-fire bullets match up with the evidence bullets. Obviously, they don’t turn the gun over to the defendant and have him conduct the test and report back to them.

In essence, what happened here is that Darden came up to Simpson and said: “Here, O.J., try on these gloves. If they fit, you’re in trouble. If they
don’t
fit, you might be able to walk out of here and start playing golf again. Now knowing in advance that if these gloves don’t fit, you might be able to walk out of here, tell us, O.J., do they fit?” It’s absolutely remarkable what the prosecutors did with the gloves, letting Simpson be in complete control and be the one to decide whether there was a fit. This isn’t incompetence. Incompetence is too flattering a term for this kind of conduct.

G
oing on, I found the number of prosecutors trying the case was not only completely unjustified, but more importantly, counterproductive. Apart from
DNA
, which is so complex that both the prosecution and the defense teams had to bring in special
DNA
lawyers to handle this phase of the case for them, the Simpson case was not a complex case at all. The prosecution could have easily gotten by with one lawyer to handle the
DNA
, and one lawyer (two at the very most) to handle all the other witnesses, such as the lay witnesses, the coroner,
LAPD
detectives and criminalists, and so forth. That’s what happens in virtually all cases, and there’s no problem at all. And then they needed at least one prosecutor, possibly even two, to handle the blizzard of written motions filed by the defense, which required long hours in the library the trial prosecutors didn’t have time for.

But like a wide-eyed neophyte, Garcetti foolishly assigned an unprecedented twenty-five prosecutors to the case (the Nuremberg trials never had this many), thirteen full-time and twelve part-time. Instead of Marcia Clark’s handling nearly all the non-
DNA
witnesses, several different prosecutors handled witnesses before the jury. This resulted in a disjointed, almost amorphous prosecution, with no one prosecutor establishing the rapport and credibility with the jury that is so important at the time of final summation. Remarkably, Clark, the lead prosecutor, went three entire months (from March 31, 1995, to June 30, 1995) without handling one witness before the jury.

Whenever I prosecuted a murder case, I always at least aspired to a masterpiece. Whether I achieved it or not is another story. But you cannot have a prosecutorial masterpiece with so many hands in the pot. By analogy, if you’re painting the
Mona Lisa
, you don’t assign different sections to different painters.

Another very surprising and harmful error the prosecution made in this case is that they frequently violated a basic, fundamental prosecutorial technique, namely, that when you know the defense is going to present evidence damaging or unfavorable to your side, you present that evidence yourself. Now that’s just common sense, right? Well, apparently it’s not. I’m absolutely amazed how day in and day out, even with many experienced trial lawyers around the country, this isn’t done. The damaging evidence comes out, for the first time, on cross-examination.

Introducing negative evidence yourself achieves two objectives. Number one, it conveys to the jurors your willingness to see that all evidence, unfavorable to your case as well as favorable, comes out—that you are not trying to suppress it in open court or outside their presence. And this helps to establish your credibility with the jury. Secondly, it frequently converts a left hook by your opposition into a left jab. If it doesn’t do that, it will almost always shave at least a few decibels off the opposition’s trumpets. It indicates to the jury that the evidence can’t really be all that bad if it was matter-of-factly and almost cavalierly brought out by you on direct examination of your own witness. What I try to do on direct examination, basically, is conduct my opponent’s cross-examination for him, but bringing out the information the way I want it to be brought out. When my opponent stands up for his cross-examination, he has very little to ask. For the most part, almost to his embarrassment, he’s going over old ground. Again, this is just common sense, right?

Let me give you a few examples of how the prosecutors in this case didn’t do that. Nicole’s sister, Denise Brown, and Candace Garvey (baseball great Steve Garvey’s wife) testified that at the dance recital just hours before the murders, Simpson was acting strange. He wasn’t friendly at all, ignored their glance, seemed to be “simmering,” and had a faraway, “spooky” look on his face, the inference being that he was in a dark, ugly mood, the type of mood that culminated in the murders later that evening. On cross-examination, the defense presented a video,
which they had gotten from the prosecution
, showing Simpson right after the recital in a very good mood, laughing, at one time almost doubling over with laughter. That was just terrible for the prosecution. It was very embarrassing and had to hurt their credibility in the jury’s eyes. It is unbelievable to me that the prosecution never presented the video itself on direct examination. Denise Brown and Candace Garvey could have testified that yes, that’s the way he looked afterward, but that’s not the way he was looking and acting before and during the recital. The effect of their damaging testimony against Simpson would probably have been diminished only slightly. As it was, however, their testimony was totally negated by the video.

Here, as with Simpson’s statement to the detectives, it looked as if the prosecution was trying to suppress evidence. Although Cochran failed to make this argument in his summation, he easily could have walked over to the prosecution table during his address and told the jury: “These prosecutors here are representing the People of the State of California. They are public prosecutors who are supposed to be dedicated to fairness, justice, bringing out the truth. But if you had to rely on them, you never would have seen that video. They weren’t about to show it to you. We had to show it to you.” (Cochran, in fact, did make a similar argument with respect to other evidence allegedly suppressed by the prosecution during the trial. This will be discussed later in the book.) What could be worse than to have the jury believe the prosecution is suppressing evidence favorable to the defense, and deliberately deceiving the jury? I mean, if Clark and Darden didn’t know that you’re supposed to present evidence like this, wasn’t there anyone in their humongous supporting staff to advise them of it?

Another example. When Chris Darden called the Bloomingdale’s buyer to the stand to testify that the charge-card records showed Nicole had bought Simpson gloves exactly like the evidence gloves, it was no surprise at all that, on cross-examination, Cochran brought out that the records didn’t reflect the color or size of the gloves, making it look once again to the jury as if the DA had been hoping the jury wouldn’t learn this.

In Marcia Clark’s opening statement, she failed to mention that the first part of a preliminary
DNA
report said that Nicole Simpson had
EAP
[erythrocyte acid phosphatase] enzyme type B blood under her fingernails and on her thigh. The problem is that neither Nicole, Goldman, nor Simpson had that
EAP
type. But the very next sentence read: “Nicole cannot be excluded as a source of the blood if the
EAP
enzyme type B observed on the items were degraded [by the elements] from enzyme type BA [Nicole’s
EAP
enzyme type] to [
EAP
enzyme] type B.” Since the first part of the report, by itself, is very misleading in that it points to a killer other than Simpson, and since a prosecutor has to assume (unless he knows otherwise) that his opposition is going to have the morals of an alley cat, Clark should have mentioned the entire paragraph in her opening statement. Instead, she never referred to it at all. Cochran in his opening statement only mentioned the first, misleading part of the paragraph. So until this matter was cleared up by the prosecution during its
DNA
presentation on May 11, 1995 (more sophisticated
DNA
tests found that the blood
was
Nicole’s), the Simpson jurors had been viewing all the evidence in the case through a clouded lens. In their minds, that blood probably belonged to some unknown assailant. All they had heard on the subject up to that point was Cochran’s misleading statement to them way back on January 25, 1995. And even after the DA cleared the matter up, there remained the problem of undoing over three months of impressions by the jury about the entire case, which had been influenced by the original erroneous information.