Outrage (60 page)

There was a “Himalayan mountain of other very solid evidence against Simpson”:
Putting on highly speculative evidence normally bespeaks desperation and weakness on the part of the side offering the evidence.

Ito made “another bad ruling, this one of pivotal and momentous consequences”:
One legal issue Judge Ito did rule properly on concerned a matter where the law, unfortunately, was against the prosecution. On the morning of June 7, 1994, just five days before she was murdered, a crying Nicole had telephoned Sojourn, a shelter for battered women and their children in Santa Monica, expressing fear of Simpson, saying he couldn’t accept that their marriage was finally over. However, she declined an offer from Sojourn to move into the shelter. Although the law in California used to be different, at the time of the trial (see page 425 for current law) the law treated as inadmissible hearsay a victim’s out-of-court declaration of fear of the defendant. Ito, saying on the record that “the relevance and probative value of [Nicole’s statement to the Sojourn hot-line operator] is both obvious and compelling,” said he nonetheless had no choice under the law but to exclude it.

Faye Resnick, Nicole’s friend, writes book on Nicole and Simpson:
Nicole Simpson: The Private Diary of a Life Interrupted
, written with Mike Walker, general editor at the
National Enquirer
, and published by Dove Books.

Ito gives lawyers latitude in all cases, not just the Simpson case:
Long before the trial, on July 22, 1994, Los Angeles deputy district attorney Norman Montrose, who had been assigned to Ito’s court the previous one and a half years, told a reporter that “Judge Ito has a tremendous amount of patience” with both sides in a trial.

“…a judge is normally both a politician and a lawyer…”:
Judges, with the ironic exception of justices of the U.S. Supreme Court, must be lawyers. No nonlawyer has ever sat on the U.S. Supreme Court, although Lyndon Johnson did try to get nonlawyer Dean Rusk, his secretary of state, to accept a nomination.

Most judges are appointed as part of political patronage system:
If not appointed (the usual situation), to become a judge one has to run, like any other politician, for the office.

There’s almost always a political connection when one is appointed a judge:
In the DA’s office, Judge Ito was a close friend of the district attorney, who in turn was a close personal friend of the governor, George Deukmejian, and I’ve been told by several people that’s how Judge Ito was appointed by Deukmejian to the Los Angeles County Municipal (1987) and eventually Superior Court (1989) benches.

Many judges have little or no trial experience:
Ito, as a former prosecutor, did have good trial experience.

“Ito was democratic about his surliness…”:
Ito spoke rudely to everyone in his courtroom, including the media. When Cynthia McFadden, a class act who did a thoroughly professional job covering the trial for
ABC
News, stood up and asked to be heard when Ito decided to terminate live television coverage of Marcia Clark’s opening argument, she immediately got a sharp “Sit down” from Ito.

“As far as the selection of a jury…”:
Jury selection is an area of the trial I have never felt that confident about, having never been a particularly good judge of people early on. Moreover, at least in my opinion, even under the best of circumstances it is only one-third art and skill and two-thirds guesswork. Back in the seventies I was on
The Merv Griffin Show
with Mel Belli and F. Lee Bailey, and either Belli or Bailey (or perhaps both) told Griffin he had a lot of confidence in his ability to choose a favorable jury, using psychiatrists, sitting in the courtroom and passing notes to him, to help decide whom to choose. When Griffin asked me for my views, I responded that not only couldn’t psychiatrists agree on the time of day, but you can live with someone for thirty years and not really know them. How can you have a real sense of someone after the relatively superficial voir dire process? (Voir dire, French for “to speak the truth,” is the jury selection process.)

Dr. Vinson and his staff conducted “focus group” sessions:
Around three-fourths of the participants in these sessions were black. The reason, Norma Silverstein said, was that “we already knew how whites felt about the case. We were much more interested in the views of blacks.”

People associate flight with a guilty state of mind:
Marcia Clark, the prosecutor who elected not to offer this evidence, knows this. When, on October 19, 1994, the defense asked Judge Ito to permit Simpson to be released on bail, arguing he wasn’t a flight risk, Clark countered that the proof he was a risk was his “attempt to escape” on the day he was supposed to turn himself in. She alleged Simpson changed his mind only when he realized that because of his celebrity, he’d be recognized and hence be unsuccessful. “A man in possession of a gun, passport, and $7,000 or $8,000 and a disguise reasonably leads a logical person to conclude that a flight was attempted but unsuccessful,” Clark argued, adding: “The people are asking that the defendant not be given the opportunity to succeed where previously he had failed.” Since you apparently knew this evidence was incriminating, Marcia, it certainly would have been nice if you had introduced it at the trial.

Attempted innocent explanations for flight sound silly:
For example, way back in January 1995, before opening statements in the case, when the defense was making the assumption that one hundred out of one hundred people would make—that the prosecutors were going to offer the evidence of Simpson’s having his passport with him at the time of his arrest—the defense told reporters that “the passport was identification he [Simpson] had gathered to use in connection with his surrender.” Perhaps the
LAPD
did not know what Simpson looked like? Perhaps prior to the trial they intended to incarcerate him in Albania?

Simpson convicted himself out of his own mouth:
The detectives also elicited from Simpson the important admission that he had
not
cut himself the last time (a week earlier) he was at his former wife’s residence, thereby largely eliminating any defense argument that any of Simpson’s blood found at the murder scene had been left by Simpson on a previous occasion.

“[Simpson] wasn’t going to say he was dead between 9:35 and 10:55 p.m.”:
This reminds me of the fellow who returns unexpectedly to his home in the middle of the day and finds his wife in a negligee and a man hiding in his closet. When the fellow asks the man in the closet what he is doing there, the man responds, “Everybody has to be somewhere.” That’s right, everybody does have to be somewhere.

“But his version of events…couldn’t have been more incriminating to himself.”:
Every time we think we’re at the nadir of incompetence with these prosecutors, one or more of them insists on revealing new and even stranger levels of ineptitude. Apart from the fundamental incompetence displayed by prosecutor Hank Goldberg referred to in this book, there is something which I find even more troubling. Was he aware of what transpired at the trial? The first indication I got of a perception problem he might have was when he told me in a phone conversation he was sure the defense
had
argued in their summation that the five drops of Simpson’s blood at the murder scene were planted by the
LAPD
. “Hank,” I told him, “they didn’t argue this. Read the transcript. They argued those five drops had been cross-contaminated with blood from Simpson’s reference vial at the
LAPD
crime lab. Read the transcript.” What later confirmed for me (there is more I’m not bothering to mention) that Hank Goldberg, who seems to be a decent, otherwise intelligent and hardworking young man, may have perceptual problems was when he wrote in his book
The Prosecution Responds
that the reason I thought the prosecution should have introduced Simpson’s statement to the police was that I was “ignorant of the fact” that the defense was not contesting that Simpson bled in his Bronco and home and on his driveway on the night of the murders. So, he says, “why would we introduce a self-serving statement [Simpson’s denial of guilt] to prove some thing that was not in dispute?” Hank, were you really and truly cognitively at the trial? Where, Hank, did the defense admit this? In your dreams? Certainly not at the trial. In fact, they vigorously tried to convey the exact opposite, that Simpson hadn’t bled at all on the night of the murders. Where were you, Hank, when the defense on July 12 and 13, 1995, called witnesses like Michael Norris, Wayne Stansfield, Michael Gladden, Howard Bingham and Stephen Valerie to testify that in the hours following the murders, they saw
no cut
on Simpson’s hands? Hank, why do you think they called these witnesses? Have you any idea?
Only
after Dr. Baden, a defense witness, testified later in the trial on cross-examination by prosecutor Brian Kelberg that Simpson told him he saw a small amount of blood on his finger while at his Rockingham estate on the night of the murders, did the defense reluctantly acknowledge even this very limited fact. The defense never conceded on direct or cross, in summation, or in any other way that Simpson had bled all over his Bronco and driveway and in his home on the night of the murders.

“[What] Simpson said to the police on the day after the murders”:
A note on Simpson’s statement and the hearsay rule. The prosecution had the right to introduce Simpson’s statement, because it was incriminating, and was therefore an exception to the hearsay rule, which otherwise excludes out-of-court statements. But the defense cannot normally (unless Section 356 applies) introduce an out-of-court statement by a defendant, since if the defense wants to introduce it there is a presumption it’s self-serving, and self-serving declarations are not an exception to the hearsay rule.

When used in a legal sense, “hearsay” has a very specific meaning. Hearsay is a statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered into evidence to prove not merely that the statement was made but that it was
true
. If, for example, a witness intended to testify that “Ray told me he saw Michael kill his wife,” Ray’s statement would be inadmissible hearsay if offered to prove that Michael killed his wife. On the other hand, if a witness testifies at a competency hearing over grandpa’s will that “grandpa told me the sky was falling,” grandpa’s statement would
not
be hearsay, since it would be offered not to prove that the sky was falling, but to prove that the old man had made the statement.

Almost all hearsay consists of oral or written statements, but even conduct, when intended as a substitute for words (e.g., nodding one’s head in answer to a question, or identifying a person by pointing), is a hearsay “statement.”

It is commonly stated that it is hearsay only when a witness relates what someone else said, but an out-of-court statement by the witness himself can also be hearsay. An out-of-court writing by a witness, for example, can be hearsay, and if certain requirements are not met under an exception to the hearsay rule called “past recollection recorded,” the writing will not be admissible.

The hearsay “exceptions” apply to situations in which the out-of-court statements carry a likelihood of trustworthiness, such as deathbed declarations and self-incriminating statements of a defendant (people normally do not incriminate themselves falsely). There are, in fact, so many legal exceptions to the hearsay rule (twenty-two, to be exact) that a number of legal scholars feel the tide is running in the direction of eventually abolishing the rule, and like most European countries, allowing hearsay in, to be given whatever weight the jury feels it is entitled to.

An example of the expanding exceptions to the hearsay rule: On September 3, 1996, California Governor Pete Wilson signed into law Assembly Bill #2068, creating “a new exception to the hearsay rule for evidence of a statement made by a declarant who was unavailable…that purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant…” when the statement was made “in writing, was electronically recorded, or made to a law enforcement official.” Critics of the bill said it clearly was enacted specifically to assist the Brown and Goldman families in their wrongful death civil action against Simpson which commenced September 17, 1996, just two weeks later. They noted that Fred Gold man, victim Ronald Goldman’s father, testified before the California Assembly in Sacramento urging passage of the bill, and that the bill’s very language said the law should “take effect immediately as an urgency statute.” It is believed that the plaintiffs in the wrongful death suit will now be able to introduce statements by Nicole in her diary referring to actual (and threatened) physical abuse inflicted upon her by Simpson.

“Simpson’s admitting dripping blood…[was] overridden by the fact he denied committing the murders”:
To everyone but the Simpson prosecutors denial is an automatic and expected response from virtually every person, guilty or innocent, charged with wrongdoing, and hence is an almost meaningless term. The word “denied,” in fact, is the most common front-page verb in the nation’s daily newspapers, whether it be in response to an allegation of conventional crime or any other form of misconduct, such as corruption, sexual harassment, misrepresentation, etc. What makes the Simpson prosecutors’ reaction (in not introducing Simpson’s statement) to Simpson’s denial all the more astonishing is that the jury already knew Simpson had denied committing the murders.

“They don’t really train you”:
With respect to this, it is always said that a lawyer should never ask a witness a question unless he knows what the answer is going to be. Time and again the talking heads would say this, having heard it in law school. I reject this venerable maxim as a blanket rule. Although there never is an excuse for asking questions of your
own
witness, as Marcia Clark did, to which you do not know the answer, the rule does not always apply to cross-examination. Although the ideal situation obviously would be to know, in advance, what the adverse witness’s answers are going to be to all of your questions, the reality is that inasmuch as you frequently have not had, or taken (which applies to the vast majority of lawyers in criminal cases, prosecutors as well as defense attorneys—see discussion in Epilogue) the opportunity to interview the adverse witness, of necessity, cross-examination often is a trek through new terrain, and experience, caution, and instinct sometimes are one’s only guide. I can assure you that if the lawyers on both sides had adhered to this utopian law school rule that even trial lawyers continue to echo, but violate, there would have been precious little cross-examination in the Simpson case. I would only accept this antiquated commandment if it were amended to read: Never ask an adverse witness a question concerning a matter important to your case without being reasonably sure what the answer is going to be.