Outrage (61 page)

Because
DNA
is complex, both sides bring in specialists:
DNA
is always complex, whether it’s in a paternity, rape, or murder case.

Garcetti assigns twenty-five prosecutors to the case:
It was alleged by many during the trial that Garcetti himself was micromanaging the case. If he did, this would be very bad and unwise, since the trial lawyers handling the case in front of the jury should make all the tactical and strategic decisions, not the DA, who is removed from the trenches. Garcetti consistently denied quarterbacking the prosecution effort, adding he was spending no more than 5 percent of his time, if that, on the case. And Bill Hodgman, who worked on the case full-time, has publicly stated that this was true.

“…dedicated to fairness, justice, bringing out the truth”:
It is often said that the purpose of a criminal trial is to ascertain the truth. But this obviously depends upon the perspective. Certainly the prosecutor (if he is ethical, as the vast majority are), judge, and jury want the truth to come out. Not so with the defense attorney. If his client is guilty, which is usually the case, the very last thing in the world he wants to come out (and that which he attempts to suppress)
is
the truth. And this verity reflects the very disparate roles of the opposing lawyers in a criminal trial.

The duty of the defense attorney is only to his client, the accused. But the prosecutor has a higher and a dual role. He represents “the people” (as
People of the State of California v. Jones
), and in more than a theoretical sense, one of those people is the defendant. So while he can justifiably seek a conviction in cases he believes in, he has the concomitant duty to help insure that the person he is prosecuting receives a fair trial. Saying it another way, the prosecution is the lawyer for the sovereign (state or federal government), and the government’s only interest is to see that all of its citizens receive impartial justice. Therefore, it is as much a prosecutor’s duty to refrain from improper methods to secure a wrongful conviction as it is to use every legitimate measure to bring about a just one. There is no doubt in my mind that Darden and Clark are fair-minded and ethical prosecutors. But because of their shocking incompetence in always appearing to be suppressing evidence favorable to Simpson, they may have conveyed to the jury the opposite impression.

“…the approximate time of death…”:
This was estimated by Dr. Golden at the preliminary hearing and Dr. Lak at the trial as between 9:00 p.m. and midnight, which sounds extremely inexact but is actually typical. Narrowing the time of death, by reference to body temperature, degree of rigor mortis, lividity (discoloration in lower surfaces of body), and decomposition, etc., down to even one and one-half to two hours is considered very good.

“…were the type which could have affected the ultimate conclusions”:
Although the mistakes made by the coroner’s office in the Manson case weren’t as numerous as in the Simpson case, they were much more substantive, and hence, far more potentially harmful to the prosecution. For instance, Dr. Golden made no mistake which, if left uncorrected, would change the complexion of the case. But in the Manson case, the autopsy surgeon for Leno and Rosemary LaBianca, deputy medical examiner Dr. David Katsuyama, failed to measure the dimensions of most of the stab wounds. Coupled with the LAPD’s initial investigative report which erroneously stated that “the bread knife [from the LaBiancas’ kitchen] recovered from Leno LaBianca’s throat appeared to be the weapon in both homicides,” the medical examiner’s oversight presented a very serious problem. Even if I were successful in convincing the jury that Manson had sent his minions into the LaBianca residence, had he sent them in unarmed? (He hadn’t.) If so, was it then probable that Manson, the main defendant, had no intent to have them commit murder? Only robbery? Much worse, Katsuyama’s initial autopsy report estimated the time of death for the LaBiancas to be Sunday afternoon (3:00 p.m.), more than twelve hours after the murders actually happened. This gave all the killers, who could prove they were elsewhere at 3:00 p.m., an airtight alibi.

Several of the autopsies on the five Tate victims were also flawed, though not nearly as seriously—e.g., the coroner for one of the autopsies concluded the victim had one more gunshot wound than he did, and the same coroner actually overlooked one gunshot wound on a second victim. And Dr. Thomas Noguchi, who was the coroner of Los Angeles County at the time and a competent pathologist, had failed to say in his autopsy report on Sharon Tate that abrasions on Sharon’s left cheek were in fact rope burns, suggesting she had also been hung for less than a minute.

“…from left to right, across Nicole’s throat”:
The prosecution contended—and the defense did not challenge the contention—that at the time of Nicole’s fatal slash wound she was most likely face down, and that her killer, from behind, had pulled her head back by the hair, and with her neck thereby “hyperextended” had slashed her throat from left to right.

“This scenario suggested that the murders took place contemporaneously…”:
It’s hard to believe that Simpson would attack Nicole and Ron if he saw them together. Not only would he instinctively and immediately realize how extremely difficult it would be to fatally assault the two of them simultaneously, but he would know that while he was stabbing one of them, the other might run away or at least scream. Yet, neither victim apparently screamed, and the two bodies were found within a few feet of each other.

“…with speculation, with conjecture, or with words like ‘possibility’”:
When, for another example, Kelberg asked Dr. Lak how a certain injury to Nicole’s left hand could have been inflicted, Dr. Lak proceeded to give two possible ways, then added that there were “many other possibilities.”

The defense calls Dr. Michael Baden to the stand:
Dr. Baden is a prominent New York doctor who was the chief pathologist for the House Select Committee on Assassinations when it reinvestigated the assassination of John F. Kennedy, 1977–79.

“…in clear violation of the confrontation clause of the Sixth Amendment to the U.S. Constitution”:
The theory the prosecution used to introduce the Peratis tape was a specious one. The defense had introduced the transcript of Peratis’s testimony at the preliminary hearing, in which he said he had withdrawn about 8 cc of blood from Simpson’s arm. Peratis was legally “unavailable” as a witness under Section 1291 of the California Evidence Code, and the prosecution offered his out-of-court taped statement under Section 1202 of the Evidence Code, it said, only to “impeach” his prior testimony, not to establish the truth of his taped statement, and hence cross-examination wasn’t required. This, of course, is a sophistic argument, one a blind man could see through. Obviously, the prosecution had no reason to introduce the taped statement other than to convince the jury that Peratis had, in fact, only withdrawn around 6.5 cc of Simpson’s blood. And therefore, permitting the unsworn statement of Peratis to be introduced into evidence with no opportunity for cross-examination was just another one of the many highly improper rulings Judge Ito made during the Simpson trial.

“[Fuhrman] underwent psychological counseling in the mid-1980s”:
In 1981, Fuhrman applied for a permanent disability stress-related pension, among other things claiming he could no longer deal with minorities and gang members and had “this urge to kill people.” From 1981 to mid-1983, he was on paid leave and the city Pension board denied his claim in mid-1983 by a 6–0 vote. Basically, they didn’t believe Fuhrman. One member of the board pointed out that despite Fuhrman’s boasts of continually beating suspects, other than a 1978 incident (discussed later), there were “no complaints [from citizens] of excessive force.” A psychiatrist who examined Fuhrman for the board, wrote: “There is some suggestion here that the patient was trying to feign the presence of severe psychopathology. This suggests a conscious attempt to look bad and an exaggeration of problems.” Also, a standard psychological test indicated he was faking. He even told the board psychiatrist of his “fond memories” of being a “trained killer” in Vietnam, but
New York Times
reporter Fox Butterfield learned from Marine Corps records that “the nearest Mr. Fuhrman got to Vietnam was aboard the
USS
New Orleans
, an amphibious transport ship stationed offshore.”

This all lends support, of course, to the belief of many that the contents of the Fuhrman tapes are 90 percent fabrication. If so, why the need for this on Fuhrman’s part? His second wife (he is presently married to his third wife), told Butterfield, “Looking back on it, I think he joined the Marines and the police as if he was trying to prove himself. On the outside Mark is very poised, but inside he had the lowest self-esteem you can imagine.”

There was only one incident on the Fuhrman tapes where we know he wasn’t spinning a fantasy:
In one of the supreme ironies and coincidences in the Simpson case, civil rights leader Antonio H. Rodriguez sent a letter on December 5, 1978, to the district attorney’s office demanding a prosecution of Fuhrman and his colleagues for the Boyle Heights incident. DA records show that the letter was eventually routed to the person who (along with the DA himself) was responsible for making the decision whether there should be a criminal prosecution. This person had oversight of the Special Investigations Division of the office, the division which handled prosecution of police misconduct cases. That person did not recommend a prosecution against Fuhrman and his colleagues. I could give you a hundred guesses and you still wouldn’t guess who that person was. It was Johnnie Cochran. As I mentioned earlier, District Attorney John Van De Kamp had appointed Cochran to be assistant district attorney, the number three man in the office. (He left the office in 1980, returning to private practice.) So the only case we know of for sure in which Mark Fuhrman engaged in serious police misconduct reached the desk of the man who was most responsible for making Mark Fuhrman and alleged police misconduct the very heart of the Simpson defense, and he passed. As a further irony, the person who routed the letter to Cochran was Gil Garcetti, who headed the Special Investigations Division at the time.

Prosecution doesn’t offer all the evidence of Simpson’s abuse of Nicole Ito had ruled they could:
The prosecution
did
present two incidents of
physical
abuse. One was the beating incident that led to Simpson pleading
nolo contendere
(the legal equivalent of a plea of guilty, although the defendant is merely saying “I will not contest” the charges against me) in 1989 to misdemeanor spousal battery in which he was given probation. Los Angeles police officer John Edwards testified at the trial that at 3:58 a.m. on January 1, 1989, he and his partner responded to Nicole’s 911 call at the Rockingham address. He said Nicole, wet and shivering, and with mud and blood caking on her right pant leg, came running out of the bushes when they arrived at the estate and collapsed into Edwards’ arms, crying and yelling, “He’s going to kill me. He’s going to kill me. He’s going to kill me.” Nicole said Simpson had punched, slapped, and kicked her. Edwards observed her to have a one-inch cut on her upper left lip, a bruised forehead, swelling around her left eye and right cheek, and a hand imprint on her throat. Simpson told the officers he had not struck Nicole, only pushed her out of the bedroom. Nicole told the officers the fight arose out of Simpson’s having sex with another woman staying overnight at the estate and then later wanting to have sex with her. Nicole told Edwards the police had been out to Rockingham eight previous times she had called, but they never did anything to her husband.

Also, Denise Brown, Nicole’s sister, testified that one time in the mid-1980s at Rockingham, she witnessed Simpson pick Nicole up and throw her hard against a wall, then pick her up off the floor and throw her out the front door.

Defense put prosecution on notice as far back as opening statement they intended to argue blood evidence was contaminated:
In his opening statement at the start of the case, Cochran told the jury: “If the evidence was contaminated at the scene or mishandled by the Los Angeles Police Department, it doesn’t matter what
DNA
tests are done afterwards…the results will not be reliable…if you have garbage in, you get garbage out.” He also referred to the LAPD’s laboratory as a “cesspool of contamination.” It should be noted that throughout the trial the defense only argued that because of contamination the results were “unreliable,” another negative word that could only redound to Simpson’s benefit. But the
only
type of unreliability that would be relevant to this case would have been if the results were incorrectly Simpson’s. However, the defense never argued that because of contamination, the
DNA
tests incorrectly showed it was Simpson’s blood, because to say that would be explicitly drawing attention to the absurdity of their allegation. And they didn’t need to. Simply saying the results were “unreliable” achieved the very same effect with the jury, without exposing the absurdity of their argument. It was up to the prosecution to expose this, which they never did, even in final summation.

Simpson wanted to be white “in every possible way”:
Simpson took speech lessons to Anglicize his diction, and one should note that the very thick lower lip of Simpson’s early years no longer exists.

Jim Brown has for years been an activist for black causes:
In the 1960s, Brown headed up a group of famous black athletes (including Muhammad Ali, Bill Russell, Kareem Abdul-Jabbar, etc.) called the Negro Industrial and Economic Union, which raised money for and (with the help of black MBAs from Ivy League schools) gave economic guidance to blacks in starting over four hundred businesses, mostly in the Deep South.