Outrage (41 page)

O. J. Simpson was acquitted—so have the defense lawyers earned the right to be called the Dream Team?

Nothing could be further from the truth. In fact, it was only the
greater
incompetence of the prosecution that saved Cochran, Shapiro, Bailey, Scheck, et al. from defeat.

Though the trial went on for nearly a year, I defy anyone to come up with one example of brilliant lawyering by the defense team, the type of thing that would cause an
intelligent
person to say to himself, “That was really something.” Indeed, the only hint of
skill
I saw on the entire defense team, including the two
DNA
lawyers, throughout the whole trial was Bailey’s cross-examination. Bailey wasn’t particularly effective on cross because of his style and a lack of adequate preparation, but it was obvious that Lee (whom I had seen cross-examine one previous time in Rochester, New York) at least has a sense of what cross-examination is all about, and was able to craft a skillful question on cross.

The cross-examination of all the other lawyers was limited to the garden variety: the routine eliciting of testimony from the prosecution witnesses favorable to the defense (as the prosecutors did with the defense witnesses); impeaching the credibility of defense witnesses by the simple technique of confronting the witness with evidence of prior inconsistent or contradictory statements; showing the witness’s bias or vested interest, his poor character for truth, etc. This can clearly be very
effective
, but there is no
skill
involved. It’s the most basic, rudimentary type of cross-examination, and most defense lawyers never rise above it. Cross-examination is a lost art, and I doubt you could find more than a handful of superb cross-examiners in the entire country.

One example of skillful cross-examination would be where, by the nature and composition of the questions, and their juxtaposition to one another, an otherwise truthful-appearing and able witness is forced into saying something that sounds patently implausible and ridiculous. Another example is when, by blocking off all possible escape hatches before springing the key question, the witness has nowhere to go and is precluded from having any reasonable explanation for his conduct or the statement he made. In the first draft of this book, my editor put this note opposite what I have just written: “Can you give an example to the reader of one of these?”

It is hard to give an example of what I’m talking about in a paragraph or two, but I’ll try to keep it brief. Before I do, however, a discussion of the use of the “why” question, perhaps my main technique on cross-examination, is called for. Virtually all human beings, from childhood on, regularly cross-examine those with whom they interact. And the main technique they employ is to ask “Why?” or “How come?” Wife to husband: “If your meeting ended at 8:00,
why
did you get home at 10:30?” Girl to boy: “You say you like me so much.
How come
you didn’t ask me to the dance?” Yet ironically, this most natural, instinctive, and practiced of all cross-examination techniques is frowned upon by the very people who need it most, trial lawyers. Books on the art of cross-examination, from Francis Wellman’s 1903 classic
The Art of Cross-Examination
on down, all advocate
never
asking an adverse witness why he did or did not do something the lawyer feels is implausible. Louis Nizer, in his book
My Life in Court
, says: “One can quickly spot a bad cross-examiner if he asks ‘why.’” The reason given is that the “why” question gives the witness free rein to explain away his conduct, and in so doing he also frequently incorporates within his explanation to the open-ended question a statement extremely damaging to the questioner’s case.

Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who crumple under the pressure of the first or second good question, are as elusive as all hell. When cornered on the stand and on the brink of public humiliation, they seem to secrete a type of mental adrenaline that gets their minds working as fast as Houdini’s hands worked in a trunk at the bottom of the Hudson River. Textbooks on the art of the cross-examination, wherein classic courtroom cross-examinations compiled throughout the years are presented, reveal that contrary to popular belief, even the most piercing cross-examination rarely, if ever, completely destroys a witness. At best, the witness is only hurt, not demolished. So the witness a lawyer is facing on the stand, for some curious reason, is almost inherently formidable. But just as no one, not even a Houdini, can pull a rabbit out of the hat when there isn’t any rabbit in the hat, a witness can’t escape when he has nowhere to go.

If I feel a witness is lying, I just about know, in advance, that he would not have acted, in a given circumstance, the way a person telling the truth would have acted. Frequently, I already have evidence that he did not. To expose the fact that he is an untruthful witness, I usually employ the following technique to block off the exits. First I elicit answers from the witness on preliminary matters, answers which, when totaled up, show he would be expected to take a certain course of action, or act in a certain way. The witness having committed himself by his answers, I then ask him what course he in fact took, and follow this up with the “why” question. If a witness is unable to justify or explain conduct of his which is incompatible with the behavior of a normal person under the same circumstances, the jury will usually conclude that his testimony is suspect. Note that there is at least one common denominator between the “why” question technique I have just mentioned and other approaches—you first have to get the witness to commit himself. In his best-selling book
The Defense Never Rests
, F. Lee Bailey (who does not use the “why” question technique) makes this excellent observation. He says: “The most common error lawyers make on cross-examination is that of immediately attacking a witness who has not been sufficiently pinioned. The result is that the witness escapes.”

In the case I prosecuted and wrote about in
Till Death Us Do Part
, there were two murders, and they were for the most reprehensible motive there can be, money. As Damon Runyon once said, these were murders “in the worst degree.” Both murders, completely circumstantial evidence cases, bore a startling similarity to the James Cain novel
Double Indemnity
, although the
New York Daily News
opined, “but this real-life plot makes Cain’s melodrama read like a wholesome, old-fashioned strive and succeed story.” In the second murder I was alleging that the male defendant, Alan (a former Los Angeles police officer), was responsible for the murder of his wife, Judy. But the defense presented evidence that on the night before Judy’s murder, two friends of Alan and Judy’s, Mr. and Mrs. Daryl Lott, had stopped by Alan and Judy’s apartment, and that Judy was alone and armed with a gun because she was in deathly fear of some other man, a former boyfriend from New York City, the implication being that this other man was the true murderer. Using the approach of first eliciting answers from the witness on preliminary matters, which, when totaled, show he would be expected to take a certain course of action, then asking what course he in fact took, and then asking why, I started in on the issue of whether Mr. and Mrs. Lott had even stopped by the victim’s apartment on the night in question, as they claimed they did. What you will see is not complex or esoteric at all. But no matter how bright the lawyer is, if he doesn’t sit down with his yellow pad (during his preparation for cross-examination) and block off all possible escape hatches, the witness (if he is a typical witness) will find one.

bq.

Q. How did you happen to stop by Alan’s and Judy’s apartment, as you claim you did, around 11:00 p.m. Friday night, April 19, Mr. Lott?

A. I don’t know. I do a lot of things on the spur of the moment. Just decided to stop in, say hello.

Q. I understand you were a closer friend of Alan’s than you were of Judy’s, is that true?

A. Well, I knew Alan longer. Let’s put it that way.

Q. Is there any question in your mind that you were much closer to Alan than Judy?

A. No. I was.

Q. You had been to Alan’s Grand Duke Bar on previous Friday nights, had you not?

A. Yes.

Q. About what time did Alan normally close the bar on these Friday nights?

A. 2:00 in the morning.

Q. Did you think that this particular Friday night Alan would be home instead of at the Grand Duke?

A. I had no idea.

Q. The Grand Duke is pretty close to their apartment, isn’t it?

A. Sure is.

Q. Would it have been out of your way to first stop at the Grand Duke?

A. No.

Q. Did you first stop at the Grand Duke to see if Alan was there before you went to Judy’s apartment?

A. No, I don’t believe we did.

Q. Any particular reason why you didn’t, Mr. Lott?

A. Uh…no reason at all.

Since the witness’s conduct was implausible, and he had no satisfactory explanation for his conduct, the cross-examination raised the inference that he and his wife had not, as they claimed, stopped by the victim’s apartment on the night before the murder.

Getting back to the defense’s cross-examination in the Simpson case,
DNA
blood testing is one of the most complex sciences, where molecular biology, genetics, and statistics converge, often in confusing ways. It’s a relatively new field, with very few lawyers in the entire country specializing in it. Among them are Barry Scheck and Peter Neufeld, pioneers in the field. Shapiro, when he was putting the defense team together, earned his fee by the hiring of Scheck and Neufeld alone. The proof of the complexity of
DNA
is that both the prosecution and the defense felt it was necessary to bring in lawyers who specialized in
DNA
to handle that part of the case for them. Scheck and Neufeld clearly proved to be competent in their specialty. They not only demonstrated they were very knowledgeable about the subject, but they did more preparation than the average lawyer, and that enabled them to conduct
effective
cross-examination. But being effective and being skillful are two different things, and the media covering criminal trials almost invariably confuse them.

Let me give you an example. At the grand jury in the Simpson case,
LAPD
criminalist Dennis Fung testified that he, not his rookie associate, Andrea Mazzola, had collected most of the blood evidence at the Bundy murder scene and Simpson’s Rockingham estate. On cross-examination at the trial, however, Scheck confronted Fung with a videotape of Mazzola (provided to the defense by the prosecution as part of mandatory discovery) collecting most of the blood evidence. Likewise, Fung testified on cross-examination by Scheck that at Simpson’s Rockingham estate on the afternoon of June 13, 1994 (the day after the murders),
LAPD
detective Philip Vannatter handed him an envelope containing a vial of blood drawn from Simpson’s arm at LAPD’s Parker Center earlier in the day and that he had carried the envelope back to his crime scene truck; whereupon Scheck confronted Fung with a videotape showing Fung walking back to the truck without anything in his hands. (Fung had forgotten that Mazzola had taken the envelope to the truck.) At another point, after Fung had testified that he and Mazzola hadn’t collected evidence until
after
the coroner’s technicians had left the Bundy murder scene, Scheck confronted Fung with yet another videotape of the crime scene.

bq.

Scheck: Now this is Ms. Mazzola putting the hat in the bag, correct?

Fung: Yes.

Scheck: Now, you remember Mr. Jacobo from the coroner’s office. He was the gentleman in the blue garment?

Fung: Yes.

Scheck: Do you see those blue pants?

Fung: Yes.

Scheck: That’s Mr. Jacobo, isn’t it?

Fung: Appears to be, yes.

Scheck: So you did begin evidence collection before the coroner’s technicians left.

Fung: Yes.

Scheck: So what you said before wasn’t true?

Fung: It was to the best of my recollection at the time.

Now, Scheck contradicting Fung at every turn with videos certainly was effective cross-examination, but absolutely no skill was involved. I mean, your local cabby could do this. If you have a film controverting the testimony of a witness, you present it, right? Is any superb lawyering involved here? If you can’t impeach a witness when you are armed with a film that supports your position, it’s time for you to take down your shingle. Yet the media couldn’t rhapsodize enough about this kind of cross-examination by Scheck of Fung. This was brilliant Perry Mason stuff, they assured their readers. And the talking heads were opining that this was the best, or among the best, cross-examination they had ever seen. It was. For them. When Marlon Brando weighed in (rather heavily, I might add) with how impressed he was with Scheck, it was now official. Barry Scheck was simply a great cross-examiner.

Perhaps nothing illustrates the incompetence of the main lawyers (not the
DNA
lawyers) for the defense more than the fact that although they went through millions of dollars of Simpson’s money, and had all the time in the world, unbelievably they never even bothered to interview most of the prosecution witnesses, relying, instead, on statements of the witnesses they were given by the prosecution by way of discovery. This doesn’t just border on incompetence. This
is
incompetence, astonishing incompetence. I had sensed they hadn’t interviewed most of the prosecution witnesses because during their cross-examination of them they frequently were receiving answers they didn’t like, and if they had interviewed the witnesses they never would have asked those questions. Also, during their efforts at impeachment by way of prior inconsistent or contradictory statements, they were almost always referring to statements furnished to them by the prosecution, as opposed to saying, “Didn’t you tell me that…” or “Didn’t you tell our investigator that…”