Outrage (64 page)

“…doing nothing but waiting for Vannatter and Lange”:
Darden’s example made no sense. The defense wasn’t even claiming that the uniformed officers who arrived at the murder scene were the ones who “rushed to judgment.” They were claiming that Vanatter and Lange, along with fellow detectives Phillips and Fuhrman, all of whom arrived hours later, were the ones who “rushed to judgment.”

“…who sloppily collected and preserved it”:
But it surfaced at the trial that when Dr. Henry Lee, the defense’s leading forensic scientist, visited the
LAPD
crime lab, he did not wear a hair net or change his gloves while handling various articles of evidence in the lab.

Neither Clark nor Darden point out in their final arguments that contamination can’t convert one person’s blood to another:
There was also no clear reference in either Clark’s or Darden’s
opening
argument to this critical and all-important point with respect to
contamination
. The only oblique, wholly unsatisfactory reference was this brief statement by Clark: “They [defense experts] could have come here…and shown you why the blood drops only got contaminated in a way that showed the defendant’s
DNA
type, not that they possibly could have.” Only in Clark’s opening argument (before Scheck argued) was there any reference to this fact with respect to
degradation
, and then only, the way she phrased it, as a relatively unimportant afterthought. Remarkably, these are the only words she said on this highly important point: “And by the way [by the way?], when
DNA
degrades, it doesn’t turn into someone else’s type. You get no result.” Just eighteen words on the entire subject, and then as an apparently parenthetical observation, an aside?

“…on the back gate and…on one of the socks…”:
Roger Martz, chief of the FBI’s Chemistry and Toxicology Department, testified that tests he conducted revealed no
EDTA
in the blood on the rear gate and sock. The presence of three separate and distinct ions (an electrically charged atom or group of atoms formed by the loss or gain of one or more electrons) is necessary for a positive identification of
EDTA
, and Martz testified he only found two. He conceded that these two contained physical properties and molecular characteristics consistent with
EDTA
(which caused many to conclude that Martz had conceded that
EDTA
was found in the subject blood), but added that they were equally consistent with compounds other than
EDTA
. Inasmuch as
EDTA
is added to many foods, Martz tested his own unpreserved blood and found around the very same low level of
EDTA
as was present in the blood on the sock and gate. The defense
EDTA
expert, Philadelphia toxicologist Fredric Reiders, neglected to even conduct his own
EDTA
test on the gate and sock blood. Nevertheless, the consistently condescending Reiders, who speaks with a Viennese accent, testified that in evaluating Martz’s test, he found what Martz could not, the missing third ion, and concluded that
EDTA
was present in the gate and sock blood. In any event, Martz testified that even assuming the blood on the sock and gate did, in fact, contain
EDTA
, the
EDTA
would have had to have come from the unpreserved blood of Simpson and Nicole, since, as stated earlier, if the blood on the gate and sock had been sprinkled with the reference (preserved) blood of Simpson and Nicole, as the defense was alleging, the level of concentration of
EDTA
in this blood, he testified, would have been “between one hundred and one thousand times” higher.

“…on the Bundy blood drops”:
Rockne Harmon, a Vietnam veteran and the lead
DNA
prosecutor in the Simpson trial on loan from the Oakland DA’s office, told me that the defense was furnished with swatches from two of the five Bundy blood drops (Items 47 and 50) to test for the presence of
EDTA
. He said Dr. Kevin Ballard of Baylor University in Waco, Texas, conducted the tests. “Since the defense never presented evidence that
EDTA
was found in Items 47 and 50, one can only conclude that Ballard found no
EDTA
,” Harmon told me. Harmon added that Ballard was in court throughout all of the testimony on
EDTA
, although the defense never called him to the witness stand. Harmon and his associate, George “Woody” Clarke (on loan from the San Diego DA’s office), were very helpful to me in answering my questions about parts of the blood evidence in this case.

“…there could not have been cross-contamination here”:
Clark should have also argued that since the defense claimed the Rockingham glove was not Mr. Simpson’s and it wasn’t he who was wearing it on the night of the murders, and since they never even claimed that there was any
EDTA
in the blood on the glove, how then did Mr. Simpson’s unpreserved blood get on the glove? Did the
LAPD
conspirators come up to Simpson and say: “O.J., we’re going to frame you, but we’ve got a little problem. We need some of your blood. Can you help us out?” And Simpson of course complied? Obviously, the blood on the Rockingham glove (the matching left-handed glove found at the Bundy crime scene did not have any of Simpson’s blood on it)
had
to have come from Simpson’s body during the perpetration of these two murders.

The need to point out to jury that issue of contamination only has relevance if blood belongs to someone other than Simpson:
I say “point out” this obvious fact because although the entire defense was implicitly predicated on the contention that it was some third party’s blood at the murder scene, the defense attorneys never expressly spoke about this, probably because they didn’t want to focus the jury’s attention on the question of who this third party could possibly be. Since no one had any motive to kill Nicole other than their client, they only wanted to focus on the allegation that it wasn’t Simpson’s blood, not the necessary corollary that it therefore had to belong to some other human being. And the prosecution, helping the defense, was virtually silent on the matter, too.

There were unconfirmed rumors that Darden was asked at the last second to give a rebuttal argument:
The record itself is ambiguous on this point. In Darden’s opening argument, he said these cryptic words to the jury: “I’m not going to have
much
of an opportunity later [in rebuttal] I think to talk to you.”

Clark was continually admitting to jury she wasn’t sure of her facts:
An inexcusable lack of preparation was even true, in fact, in both Clark’s and Darden’s
opening
arguments. Clark: “I’m trying to remember the date of, I think it was ’92, in which…” (if you’ve gone over your prepared remarks even once, and you see you don’t have a date or anything else, if you don’t get it yourself, don’t you automatically have one of the twenty-four other prosecutors helping you on the case get it for you?); “First of all, premeditation. Let me see. I think we have a jury instruction here for this. I don’t think we have it right now. That’s okay. I’ll just tell you” “You may recall we heard the testimony of the—I think it was Luellen Robertson of Air-touch.” Darden: “As we search for the motive jury instruction, let me say to you…” “And the next month, I think it’s February—I don’t know” “Look back at Eva Stein. I believe her time was 10:20. Was it 10:30?” “If my memory fails me, then, you know, rely on the testimony in case I’m incorrect” (What, Chris? In preparing your summation you didn’t look at the transcript yourself? The one you get at the end of each day? You’re just winging it in front of the jury?).

Rebuttal argument should be prepared way in advance, and then gone over many times:
Celebrated defense attorney Gerry Spence, in his best-selling book
How to Argue and Win Every Time
, says: “Now that we have written out the argument, let us go over it again, not once, but many times.”

Clark plays a compilation of Nicole’s 1989 and 1993 911 calls to jury:
I was reminded of some of my closing words to the jury in the Manson trial, which the media came to call “the roll call of the dead.” After each name I paused, so the jurors could recall the person, once a living human being. “Ladies and gentlemen of the jury,” I quietly began, “Sharon Tate…Abigail Folger…Voytek Frykowski…Jay Sebring…Steven Parent…Leno LaBianca…Rosemary LaBianca…are not here with us now in this courtroom,
but from their graves they cry out for justice
. Justice can only be served by coming back to this courtroom with a verdict of guilty.”

“…opening argument about the ‘shortening fuse’…”:
The “shortening fuse” was perhaps the main part of Darden’s opening argument to the jury. He said the fuse was lit way back in 1985 when Simpson “took that baseball bat to Nicole’s car,” and it continued to burn and get shorter until he finally killed her.

Cochran argues that Simpson’s conduct on night of murder isn’t reflective of someone planning to commit murder:
It’s just speculation on my part and of no moment, but I’ve always had the sense that in the early-evening hours on the night of the murders and at the time Simpson went to get a hamburger with his houseguest, Kato Kaelin, he was not planning to kill Nicole. My guess is that he had probably thought about killing her many times in the past, and with the purchase of the disguises on May 27, 1994, the thought had gone at least a step beyond mere contemplation but had not been finalized yet. My further guess is that he spoke to Nicole over the telephone a half hour or so before the murders (for which there would be no records, since his home was less than two miles away and not a toll call), during which they had an argument and she said something to him that ignited the murderous rage we know he had.

It should be noted that after the murders, when the police were driving Simpson’s and Nicole’s two children (Sydney Brooke, age nine, and Justin Ryan, age six) to the police station in the early-morning hours of June 13, 1995, Sydney told one of the police officers that from her and Justin’s upstairs bedroom, she heard her mother arguing loudly with someone on the phone. The precise time is not known, but it most likely was after 9:00 p.m., since Nicole and her children didn’t leave the Mezzaluna restaurant until just after 8:30 p.m., and Nicole then took the children to a Ben and Jerry’s ice cream shop before heading home. The children were believed to be asleep at the time of the murders.

“…looking at the statistics the wrong way?”:
Surprisingly, there seem to be no national statistics on this matter. Calling the Police Foundation in Washing ton, D.C., the
FBI
, the International Association of Chiefs of Police in Alexandria, Virginia, prominent researchers on national crime statistics like Carolyn Block of Chicago, even the National Center for Violence Prevention and Control in Atlanta, Georgia, I found that among their volumes of statistics none had any on this precise point. The only statistics I was referred to arose out of a 1973 grant from the Police Foundation to a team of researchers to explore the relationship between domestic disturbances and the violent crimes of homicide and aggravated assault in 1970 and 1971 in Kansas City, Missouri. Their report showed that the Kansas City Police Department “had responded to at least one such disturbance call at the addresses of approximately 90 percent (94.5 percent in 1970 and 84.1 percent in 1971) of the homicide victims or suspects.” (The aggravated assault statistics were 86.9 percent in 1970 and 81.2 percent in 1971.) To remind the reader, when the police responded to the 911 radio call at Simpson’s Rockingham estate on January 1, 1989, there had been eight previous 911 or disturbance calls from that address since the Simpsons married on February 2, 1985.

The circumstantial evidence instruction with respect to reasonable doubt:
This mildewed and very ambiguous instruction should be discarded. The jurors are the triers of fact and only they decide what facts are enough, in their mind, to prove guilt. But if certain facts are “essential” and “necessary” for a conviction, doesn’t this necessarily imply they are essential and necessary as a
matter of law?
(After all, the instruction doesn’t tell the jury, “essential and necessary
in your mind
.”) But if so, why doesn’t the judge tell the jurors what these facts are? There are certain elements of a crime that have to be proven before there can be a conviction, but not certain facts. This extremely poorly drafted instruction is tailor-made for defense attorneys to misuse, as Barry Scheck did in this case.

“…I have not tried to explain it away at all”:
Cooley’s coauthor and Simpson juror Marsha Rubin-Jackson
did
try to explain away Simpson’s blood at the murder scene, and her explanation was a beaut. “I had no doubt in my mind that that wasn’t O.J.’s blood, the blood drops,” says Rubin-Jackson, “but by them being so degraded they could have been there before. Prior to the murders. He [Simpson] visited that place often.” In a televised debate with me on
Larry King Live
on June 11, 1996, Alan Dershowitz made the same argument, that is, one possible explanation for Simpson’s blood being at the murder scene is that he bled there on a prior occasion. (Johnnie Cochran, promoting his book
Journey to Justice
on the Michael Jackson radio show in Los Angeles on October 4, 1996, also made this argument in response to a question from a caller). But in the first place, there is no evidence whatsoever that Simpson bled at Bundy on a prior occasion, and therefore any speculation to that effect is worthless. In fact, in his statement to the police the day after the murders he told them that the last time he had visited his children at Bundy, about a week prior to the murders, he did
not
bleed or cut himself. Moreover,
LAPD
criminalist Dennis Fung testified at the trial that the five blood drops of Simpson’s he found at the murder scene appeared to be fresh blood. They were bright red and transferred easily to the cotton swatches. In other words, the blood hadn’t set yet. Fung added that later in the day, some of the other blood that hadn’t yet been collected had turned a dark brown. Additionally, even assuming just for the sake of argument that Simpson had bled at Bundy on a prior occasion, even the most gullible person in the world would not believe that of all the places on the Bundy premises, Simpson just happened to bleed immediately to the left of the killer’s bloody shoe prints walking away from the slain bodies of Ron and Nicole. Apart from the absurdity of the Simpson juror’s speculation, this was yet another reason to have introduced Simpson’s tape-recorded statement in which he says he did not bleed the last time, about a week earlier, that he was at the Bundy address. If you’re a killer, it must be nice to be able to do what Simpson did—not answer the evidence against you by testifying—and have jurors offer innocent explanations for you. And also to have a prosecutor who doesn’t offer evidence against you which would refute the jurors’ explanations. That’s leading a charmed existence.