Outrage (59 page)

p. 59:
New York Times
reporter David Margolick said Dr. Henry Lee was “largely unassailable”:
Margolick, a lawyer himself, made few miscues during the trial, normally covering its events in a stylish, professional, and sensible way. One small lapse was when he fell momentarily into the myth about defense attorneys, saying that the “usually silver-tongued” Cochran had not been so during Cochran’s cross-examination of a particular witness. Cochran, even during argument, is not silver-tongued, but when asking questions it would be impossible for even Shakespeare or Churchill to be silver-tongued, since questions simply don’t lend themselves to this. Actually, it would sound odd and hence be ineffective to even make an attempt.

In fact, Cochran’s questions during the trial were clearly less articulate and less well phrased than those of any of the other lawyers. He put them together seemingly off the top of his head with a fractured syntax that would rival President Eisenhower’s.

Intelligence is not the key ingredient of being a great trial lawyer:
What goes into making a great trial lawyer? Actually, I’ve done very little thinking about this, and with more thought what I’m going to say could undoubtedly be improved upon. I’d say that number one, you have to have a born instinct for how to try a case before a jury. It’s almost a feral instinct not only to survive, but to destroy (in an ethical fashion) whatever obstacle stands in your way. It’s nothing that can be taught. You either have it or you don’t, and there are few who possess it. The instinct, like someone who has a natural instinct for the violin, a particular sport, or what-have you, enables the possessor to see and handle, very easily, matters that are difficult or even impossible for others. It enables the possessor to take the facts of a case and play with them in such a way that the point you want to make becomes irresistible. If I can compare the facts of a case to the black and white keys on a piano, a mediocre pianist just hacks out a tune, but working with the very same keys a Horowitz can play soaring music. You also have to have the personality and style—with all that these terms imply—to sell your case to the jury. This too, obviously, is something you’re born with.

The problem is that most of those few lawyers who do have the instinct and personality to be highly effective trial lawyers aren’t willing to invest the hundreds upon hundreds of hours of preparation necessary to put everything together as well as to maximize the potential of their instinct and personality.

Jury deliberates for only three and a half hours:
Judge Ito, like all judges, instructed this jury no fewer than three or four times a day not to discuss the case among themselves until it was submitted to them for their deliberations on the verdict. So either the jurors had violated Ito’s instructions all along and had been talking to one another throughout the trial, or when the case was finally submitted to them for their deliberations they in no way even began to adequately discuss and evaluate with each other the immense amount of evidence in the case.
Newsweek
’s Jonathan Alter said it well: “Unless they’re lying, the jurors talked about the case with each other for a far shorter time than 100 million other Americans talked about it with each other.”

Santa Monica courtrooms were just as large as Department 103:
Because of the smallness of Department 103, the
New York Times
, for instance, had to share its seat on an alternating basis with
La Opinion
, a local Spanish-language newspaper.

Defendants are entitled to be tried by a jury which is a representative cross section of the community:
One often hears that defendants are entitled to be tried “by a jury of their peers.” No one has yet defined precisely what this term means. Certainly it does not mean that serial killers are entitled to have their cases heard by other serial killers, or someone like Simpson tried by professional football players. But a definition is unnecessary, since “a jury of one’s peers” is simply a term that has become a part of the American vernacular but has no foundation in American law. (The term did appear, actually, in the Magna Carta, the thirteenth-century charter granted by King John, which is regarded as the foundation for English constitutional liberty and a predecessor to this nation’s constitution.) Under the Sixth Amendment to the U.S. Constitution, an accused is entitled to be tried by “an impartial jury.” American case law has engrafted upon this constitutional mandate the requirement that the impartial jury be chosen from a “representative cross section of the community.”

Ito relies on
In Re Anthony P.
, 167 CA 3rd 502 (1985), to let defense inquire into Fuhrman’s racial bias:
There was much more reason to allow inquiring into racial bias in the
Anthony
case Judge Ito relied on than in the Simpson case, where Mark Fuhrman’s finding of the glove was only one among many pieces of evidence in the prosecution’s case, and Fuhrman was not accusing Simpson of anything. In
Anthony
, a fifteen-year-old white girl accused a seventeen-year-old black boy of sexually molesting her near her locker at school after she turned down his request for a date. His lawyer was not permitted, on cross-examination, to ask her if she was offended by a black person asking her for a date, and the appellate court held that constituted reversible error. The fifteen-year-old girl’s racial bias, if any, went to the core of the case, and there was no evidence against the defendant other than her word. Yet Ito ruled that the
Anthony
case was “controlling” on the issue of whether Fuhrman could be cross-examined on his past use of the N-word.

The defense in the Simpson case also relied on the case of
Davis v. Alaska
, 415 U.S. 308 (1973), an equally obvious case of a denial of a defendant’s constitutional right of cross-examination. In
Davis
, a juvenile named Green identified Davis as a suspect in a burglary of a bar. On cross-examination, the trial court did not permit Davis’s lawyer to elicit the fact that Green was on probation for burglary. The Supreme Court, in reversing the conviction, observed that from Green’s assisting the police in identifying Davis, Davis could have argued that Green “acted out of fear or concern of possible jeopardy to his probation,” and additionally may have been seeking “to shift suspicion away from himself as [the] one who [burglarized] the Polar Bar.”

It’s a non-sequitur to conclude that just because Fuhrman is a racist he framed Simpson:
The principal contention of the defense with respect to Fuhrman is that he planted a bloody, right-hand glove (which they claim he had seized from the Bundy crime scene, and which matched a left-hand glove found there) on the grounds of Simpson’s Rockingham estate, and then said he found it there. They also alleged, among other things, that Fuhrman brushed the glove (which had Simpson’s and the two victims’ blood on it) across the console of Simpson’s Ford Bronco, leaving blood from all three of them there.

“…the massive publicity surrounding…the Fuhrman tapes”:
Anyone interested enough in the Simpson case to be reading this book already knows about the Fuhrman tapes and the tremendously harmful impact they had on this case. Between April 1985 and July 1994, Laura Hart McKinny, an aspiring North Carolina screenwriter who was writing a movie script about policewomen, had a series of tape-recorded conversations with Fuhrman for the purpose of Fuhrman providing her with realistic dialogue, police procedures, and insights into a police officer’s thought process. McKinny agreed to pay Fuhrman $10,000 if the script was picked up. Since the script was fictional, the argument was made by some that nothing Fuhrman said should be taken seriously. But the consensus was that the statements Fuhrman made on the close to fourteen hours of tape, though almost assuredly part bluster to increase the marketability of the script so he could collect his $10,000, essentially reflected Fuhrman’s state of mind with respect to blacks. On the tapes, Fuhrman uses the word “nigger” forty-one times, and comes across as being so racist, and so extreme, as to be almost cartoonish, a caricature of a bigot, and hence his words don’t sound as real as their literal meaning. Did even members of the Ku Klux Klan in the thirties in the Deep South sound this bad?

Fuhrman pleads “no contest” to perjury:
On October 2, 1996, after a year-long investigation by the California State Attorney General’s office, Mark Fuhrman pled “no contest” to one count of perjury for falsely denying under oath he had used the word nigger during the preceding ten years, and received a sentence of three years probation and a $200 fine. I’m not convinced at all that Fuhrman’s lie even constituted perjury. Lay people are under the erroneous impression that lying under oath is automatically perjury. But it’s not. Lying is only one element (albeit the most important one) of the
corpus delicti
of perjury. The second element is that the lie has to concern some “material matter,” meaning that it must be relevant to an issue in the case. For instance, unless one’s age or weight is somehow relevant to an issue in a case, a witness lying under oath about his age or weight or about where he lives is not committing perjury. Likewise, Fuhrman’s lie about not using a racial slur in the past ten years was not, in my judgment, perjury, since it had nothing to do with whether Simpson was guilty or not guilty of the murders. Fuhrman was aware that whether his lie was “material” was a triable issue, but told me he very much wanted to “put this whole thing” behind him so he and his wife and children could “get on” with their lives. He also was nearly broke, and knew a trial would be long (the immateriality of his lie could only be demonstrated by presenting it in the context of a considerable amount of evidence in the case) and therefore costly, and in the event of a conviction, he would most likely receive a prison sentence.

Many have complained about Fuhrman’s light sentence, saying it was far too lenient “for the magnitude of what he did.” I disagree. Here’s someone who is awakened in the middle of the night, goes to the crime scene at Bundy, does absolutely nothing wrong at all, and yet, even before his no contest plea, his life may have been ruined. Now, he’s also a convicted felon with no right to vote or own a firearm. Yet Simpson, who brutally murdered two human beings, was set free. What kind of topsy-turvy world do we live in? Fuhrman has already suffered much, much more than he deserves.

Let’s also not forget how extremely common perjury is at a trial, and that like all things in life, there are degrees of perjury. Though not condoning it in any way, on a scale of one to ten, Fuhrman’s perjury, if we assume it was perjury, was a one. He simply didn’t want to admit—he was too embarrassed to admit—in front of this predominantly black jury that he had used this racial slur. The whole Fuhrman affair reminds me of the theoretical situation of a traffic ticket being contested and ending up in the United States Supreme Court.

A small percentage of racist police hurt the reputations of the
LAPD
and L.A. Sheriff’s Department:
Police brutality, obviously, is not confined to Los Angeles. As Hubert Williams, president of the Police Foundation in Washington, D.C., and former chief of police in Newark, New Jersey, says: “Police use of excessive force is a significant problem in this country, particularly in our inner cities.” Steven Hawkins, assistant counsel at the
NAACP
Legal Defense Fund headquarters in New York, adds that “from rural America to America’s big cities, police brutality has been and continues to be pervasive in the black and Latino communities.”

“Ito excluded all statements of alleged misconduct by Fuhrman”:
The boldness of the defense attorneys in the Simpson case virtually knew no boundaries. It included not only their continuous, blatant effort to deceive the jury, but to deceive,
in print
, Judge Ito. Remarkably, on page 21 of their August 22, 1995, “Amended Offer of Proof Re: Fuhrman Tapes,” they told Ito that pages 21 through 39 contained examples of police misconduct by Fuhrman including, they assert in their brief, “planting evidence.” But not one of the examples deals with the planting of evidence.

Ito kept out statements on tapes from which defense could infer Fuhrman framed people:
The only allegation (not referred to on the Fuhrman tapes) of Fuhrman or his partners planting anything on a black man arose out of an April 7, 1987, incident in West Los Angeles. One Joseph Britton and a confederate were fleeing the scene of an
ATM
robbery when Fuhrman and three other officers pursued Britton, who claims he discarded a knife he was carrying before he was found hiding behind a concrete fence. Britton says one of the officers said, “You stupid nigger, why did you run?” and proceeded to shoot him six times. He sued Fuhrman and his partners for police brutality, and claimed they planted the knife at his feet to justify the shooting. The first trial resulted in a hung jury (8–4 for the defendant police officers), and before the retrial set for late 1994, the City of Los Angeles settled with Britton for $100,000. Ito did not allow the defense to introduce this evidence because in a February 19, 1993, deposition, Britton said he did not know which of the four officers planted the knife at his feet, and the officer who shot him “was a white male with red hair and a red mustache,” clearly not Fuhrman.

Simpson tells Ronald Shipp he had dreams of killing Nicole:
In offering this testimony against his close friend Simpson, Shipp knew he was permanently ending this relationship. But in dramatic courtroom testimony he said, “I’m doing this for my conscience…. I will not have the blood of Nicole on Ron Shipp. I can sleep at night, unlike a lot of others.” If the jury didn’t know Simpson was guilty, Shipp was telling them the obvious in so many words. At Nicole’s urging, Shipp, an expert on domestic violence who taught a course on it at the
LAPD
, counseled Simpson after Simpson’s battery of Nicole in 1989. Feeling a sense of guilt over Nicole’s death, he told the jury that “perhaps I didn’t do as much as I could have.” At one point while Shipp was on the witness stand and the attorneys were at sidebar, Shipp mouthed the words “Tell the truth” to Simpson.