Outrage (65 page)

“…doesn’t negate all that
has
been proved”:
In
Madam Foreman
, Simpson juror Marsha Rubin-Jackson says there were a lot of “questions we had that never got answered,” as if it were the prosecutor’s burden to answer all of the jury’s questions. And jury foreperson Armanda Cooley, to support the not-guilty verdict, says in the book, “There were many questions that were not answered.”

Inconsistencies, slip-ups, incompetence, etc., are normal occurrences in life:
Everyone knows this, but if you don’t specifically and expressly draw jurors’ attention to this reality and fact of life, some people just don’t think of it. In the A&E television special on the Simpson case on December 20, 1995, Simpson juror Yolanda Crawford said, “The police said they came back to Bundy a couple weeks later and found blood on the rear gate they didn’t see earlier. [Not so, Ms. Crawford. Where were you when several officers, including Lange, Vannatter, Terrazas, Phillips, and Riske, testified they saw the blood on the gate on the night of the murders? Where were you when an
LAPD
photograph taken on June 13 was introduced showing one of the two stains on the
inside
of the gate? (No photo of the
outside
of the gate, where there was another stain, was taken.) Only Dennis Fung testified he didn’t see the blood there.]
But not seeing something like this just doesn’t happen.”

It was cool on the night of the murders:
A meteorologist for the National Weather Service in Oxnard, California, told me that the temperature at the civic center in downtown Los Angeles at that time was sixty-four degrees, and he estimated the temperature in West Los Angeles, closer to the ocean, to be “in the high fifties or low sixties.”

Who else would have had any reason to kill the victims in this case?:
Another big reason why the tape of the LAPD’s interrogation of Simpson should have been introduced at the trial is that when Vannatter asked Simpson, “Did Nicole mention that she’d been getting any threats lately to you? Anything she was concerned about, or the kids’ safety?…From anybody?” Simpson replied, “No, not at all.”

The defense set up an 800 number before the trial to get tips on who the killer or killers might be:
The prosecution should have presented evidence of all this during its case-in-chief.

The defense offered no evidence that anyone other than their client committed these murders:
The defense presented evidence that there were eight sets of unidentified fingerprints at the Bundy address. This fact didn’t come from the defense’s efforts, however. It came from the
LAPD
fingerprint expert. But not even the defense suggested there were eight killers, we know there was only one set of bloody shoe prints, and the killer wore gloves, which would not, of course, leave any fingerprints. This issue was mentioned but not dwelled on by the defense attorneys during their final summations, since the inference was that these were random fingerprints which had been left by some of the considerable number of people and law enforcement personnel who came to the crime scene after the murders, or had been left there earlier by friends of Nicole’s or people like mailmen, salesmen, etc.

“…responsible for Nicole’s murder”:
The defense theory was that the drug lords were really out to kill Nicole’s close friend Faye Resnick, and mistook Nicole for Faye, who bears no resemblance to Nicole, even in the color of her hair. Faye is also several inches shorter, and has an exotic look, which Nicole did not have. Ms. Resnick, who lived with Nicole for a short while before the murders, checked herself into a drug rehabilitation center just days before the killings, a fact that the defense elicited from Detective Lange on cross-examination. The defense theorized, without any evidence to support the theory, that maybe Ms. Resnick owed her drug dealer money, and that this prompted the murders. Since it was just rank speculation, Judge Ito would not permit the defense to inquire any further into the Resnick matter before the jury. And since the jury heard no evidence of any drug use by either of the two victims, the Colombian drug lord talk must have sounded curious to them.

Incidentally, this was not a typical drug killing at all. Drug killings are usually shootings. When there is brutality such as this (thirty-seven stab wounds, in some of which the killer actually was cutting), there is normally an abduction and torture at a place removed from the abduction, and the victim is someone important, such as an informant or a competing drug trafficker, not some private user.

Religious people would not want it on their conscience that they may have let a murderer go free:
In
Madam Foreman
, Carrie Bess writes: “I often asked the Lord to help me because there was a time when I thought about that place in the Bible where it says ‘Judge ye not.’ It really came to a point where I was wondering, Carrie, are you really doing the right thing? Should you be the one here to say whether or not this person did that or this person did not do this? But I prayed and the Lord answered my prayer because I feel my decision was fair.”

Legal experts and trial lawyers strongly recommend against the use of the “why” question:
The principal book on cross-examination currently out there is
Cross-Examination: Science and Techniques
by Larry S. Pozner and Roger J. Dodd, a 763-page tome that is being widely read and is in all the law libraries. On page 302, the authors advise their readers: “The adept cross-examiner
never
uses questions that begin with ‘how’ or ‘why.’”

When I said the why question is almost universally frowned upon by trial lawyers, I should refine that to say “by experienced trial lawyers who are students of cross-examination.” Inexperienced ones, or those who haven’t studied the art of cross-examination, sometimes
do
use the why question, and not knowing how to use it, get hurt by it. Darden’s cross-examination of Laura McKinny was a perfect example, and the harm was considerable. Judge Ito’s basis for excluding all statements by Detective Fuhrman on the Fuhrman tapes wherein Fuhrman referred to acts of misconduct (including police officers covering up for one another) was that there was no factual support that the conduct referred to by Fuhrman had ever taken place. But Darden came to the defense’s rescue on something that went to the very heart of the defense—that certain members of the
LAPD
in the Simpson case had framed Simpson, and their colleagues had covered up for them. After McKinny testified she was offended by Fuhrman’s use of the word “nigger,” Darden asked her (obviously without having any idea what her answer was going to be, his first big mistake)
why
then hadn’t she asked him to stop? Her response caught Dar den by surprise: “For the same reason I didn’t tell him to stop when he told me of police procedures,
cover-up
and other information I felt was important to me.” It was the first (and ultimately only) testimony the jury heard at the trial about police-officer cover-ups, presumably of the misconduct of their colleagues. Darden having opened the door, Ito allowed a jubilant Cochran, on redirect, to have McKinny explain what she meant: “Sexism [on the force] is inextricably related to certain
cover-ups
that some men in the police department are doing, and some women are not able to agree with that or follow along those lines, and it was a huge schism.”

An alternative to the “why” question is to save for final argument the implications of the witness’s testimony, but by that late point in the trial, the witness’s reason for his conduct is a matter for competing speculation by the lawyers, not court record. Moreover, the opportunity to make the witness “look like a liar” before the jury’s eyes when he is trapped has been lost.

“Now, Scheck contradicting Fung at every turn with videos…”:
Obviously, if prosecutor Hank Goldberg, who handled Fung on direct examination, had adequately prepared Fung for cross-examination, Scheck wouldn’t have been able to accomplish what he did with Fung. Goldberg had every one of the videos Scheck had. Therefore, when a witness like Fung, for instance, tells you, during your preparation of him for direct and cross, where you have him relate to you, in your very first interview, among many, every single thing he did in the case, in chronological order: “and then I carried the envelope Vannatter gave me back to our crime scene truck,” you point out that the video (assuming Goldberg had looked at it) shows him to be empty-handed. If this had been done, obviously Fung would have told Goldberg what he ended up having to concede in front of the jury on cross-examination by Scheck: that he had forgotten he had given the envelope to Andrea Mazzola to bring back to the crime scene truck. And so on with the plethora of other misstatements by Fung which were brought out on cross to destroy his credibility. Isn’t there anyone down at the Los Angeles DA’s office to teach prosecutors how to prepare witnesses for their trial testimony? We’re not talking about complex, esoteric stuff here. It couldn’t be any simpler.

“Kato Kaelin testified that around 11:00 p.m. on the night of the murders…”:
I have never been as harsh in my assessment of Kato Kaelin as many others have been. Although it may be true that Kaelin shaded certain testimony of his in Simpson’s favor out of loyalty to him (the shaggy-haired aspiring actor lived free as a house guest of Rockingham), particularly with respect to his observations of Simpson’s mood not being unusual on the day and evening of the murders, when it really came down to crunch time, Kato stood up to Simpson big-time. It was Simpson’s intent to use Kato as his alibi witness for the murders, specifically trying to put words into the latter’s mouth by telling Kato on the day after the murders that when he and Kato returned to Rockingham from McDonald’s at 9:35 p.m. on the night of the murders, Kato saw him go back into the house. It would have been the easiest thing in the world for Kaelin, a friend of Simpson’s and beholden to him, to agree. After all, no one could ever contradict him if he did. But Kaelin told Simpson he did not see him entering his home. “I didn’t see him go into the house because I went to my guest room” Kaelin testified at the trial. We also shouldn’t forget that Kaelin testified that at 7:30 on the morning after the murders, he saw blood drops on the Rockingham driveway and in the foyer of Simpson’s home. This, of course, was almost five hours before Simpson returned to L.A. from Chicago and seven hours before any blood was withdrawn from his arm, thereby undermining the main defense argument in the case that the police had planted blood from Simpson’s reference vial in various places. In a March 22, 1996, appearance on CNBC’s
Rivera Live
, Kaelin said, at least for the first time publicly, “I do believe he [Simpson] murdered Nicole.”

“…a Louis Vuitton garment bag…”:
Throughout the day after the murders, June 13, 1994, members of Simpson’s family and various friends of his visited Simpson at his Rockingham estate. Among them was Simpson’s friend, Robert Kardashian. A videotape shows Kardashian leaving the premises with the Louis Vuitton bag, and it appears to be full. When this bag was later seen in Simpson’s bedroom closet, and when it was brought to court and marked as a defense exhibit, it was empty. The prosecution sought to call Kardashian (an attorney who around the time of the murders was on inactive status with the State Bar) to the witness stand to testify to his knowledge concerning the contents of the bag as well as that of Simpson’s golf club bag which he and Simpson retrieved from
LAX
on June 14, 1994.

The defense vigorously resisted on the ground of the attorney-client privilege, even though Kardashian, who had since reactivated his status with the bar on June 20, 1994, was not Simpson’s lawyer on June 13 and 14, nor did he participate on the record at the trial in any of the trial proceedings. Because of the sensitivity of the issue, Ito asked the prosecution to submit written questions (for Kardashian) in advance for a hearing outside the presence of the jury to decide whether Kardashian would be required to testify. Because the prosecution felt they could not get to the truth of what happened that way, they dropped the matter.

Immediately after the trial, F. Lee Bailey accused co-counsel Robert Shapiro of having tried to negotiate a plea bargain with the DA’s office wherein Simpson would plead guilty to voluntary manslaughter, and Kardashian to being an accessory after the fact to manslaughter, but Shapiro denied the charge. In Johnnie Cochran’s book on the case,
Journey to Justice
, he claims that DA Gil Garcetti called him just prior to Simpson’s arraignment and offered to settle the case with a plea bargain, allowing Simpson to plead guilty to second degree murder. When Cochran countered with the possibility of a plea to an even lesser degree of criminal homicide, voluntary manslaughter, he quotes Garcetti as saying: “I think second is more than fair, but if you want to come in, we can talk about it. Things can be worked out.” Cochran says he then told Garcetti, “Gil, there really isn’t anything to talk about. My client says he’s innocent. So unless you’re willing to cut him loose, there’s no point in our meeting about this.” Garcetti, through a spokesperson, has denied Cochran’s account of their conversation.

Cochran violates the law in his opening statement:
A portion of Judge Ito’s statement to the jury: “Defense counsel [Cochran] mentioned witnesses who had not previously been disclosed to the prosecution, or whose written statements were not given to the prosecution before trial as required by the law. This was a violation of the law.”

National Enquirer
concludes that Rosa Lopez is not a credible witness:
The
National Enquirer
, with an enormous staff working around the clock on the Simpson case, did a good job of investigative journalism, time and again uncovering and verifying important pieces of information that the mainstream media missed. The
New York Times
took cognizance of this, noting that the
Enquirer
had become must-reading for all reporters covering the trial.
Star
magazine also scored some journalistic coups during the trial.