The Annals of Unsolved Crime (28 page)

Even in what was then the most deadly terrorist attack in American history, there can be no doubt that as the McVeigh trial approached, there was enormous pressure put on the FBI not to pursue leads that could be used by the defense team to advance doubts with the jury. The fact that the investigation was cut off before a fourth conspirator could be located demonstrates that the need for prosecutors to bring high-profile cases to trial can result, as it did in this case, in an unsolved mystery.

CHAPTER 31
THE O. J. SIMPSON NULLIFICATION

Evidence is, by its very nature, controvertible. Nowhere is this proposition better illustrated than in the murder trial of O. J. Simpson. Late in the evening of June 12, 1994, Simpson’s ex-wife, Nicole Simpson Brown, and her friend Ronald Goldman were brutally stabbed to death outside Nicole’s condominium on Bundy Drive in Los Angeles.

Since Orenthal James Simpson, better known as O. J., one of America’s all-time great football heroes, had threatened her with violence on previous occasions, and had left Los Angeles immediately after the bloodbath, he became a suspect in the double homicide, and he agreed to voluntarily surrender to the Los Angeles police on June 17.

After he had retired from professional football, O. J. Simpson had remained in the public eye as a movie actor, television-show host, and product endorser, which made his surrender a media event. More than one thousand reporters had gathered at police headquarters to witness his agreed-upon surrender. When Simpson failed to arrive, they became fixated on the pursuit of his Ford Bronco in which a passenger had warned on his cell phone that Simpson was suicidal and holding a loaded gun to his head. As a convoy of police cars slowly trailed the Bronco on the throughways, one network after another canceled its schedule to carry the strange chase from helicopters live on television. By the time Simpson returned home, surrendered to
waiting police, and was handcuffed,
USA Today
reported that it was already “the most publicized crime in history.”

Although no murder weapon or any eyewitness to the double homicide was found, the police quickly amassed a wealth of incriminating evidence, including a bloody footprint, hairs, and fibers, and, on July 7, they proceeded to indict O. J. Simpson.

He pleaded “absolutely not guilty,” retaining what the media termed a “dream team” of nine top lawyers, including two world-renowned experts in DNA evidence, to defend him. The televised trial, which began on January 25, 1995, turned on the prosecution’s DNA evidence. To compare samples from those taken at the crime scene with those specimens furnished by Simpson, the prosecution used a technique called “restriction fragment length polymorphism.” It requires the breaking of each DNA sample into pieces via restriction enzymes, then separating them according to their lengths, and comparing these results with the DNA furnished by Simpson. According to the prosecution’s expert witness, police criminologist Dennis Fung, this DNA evidence, including samples taken from the bloody footprints leading away from the bodies, perfectly matched that of O. J. Simpson. If this was true, he could be placed at Nicole Brown Simpson’s townhouse at the time of the murders. But in eight days of cross-examination, defense lawyer Barry Scheck elicited testimony that showed flaws in the process. For example, the police scientist who collected blood samples from Simpson to compare with those from the crime scene carried them around in his lab-coat pocket for nearly a day before handing them over as evidence, raising the possibility of cross-contamination between the samples. Scheck argued that this and other mishandling of the blood samples made it impossible to determine whose DNA was found at the crime scene.

The prosecution had also relied heavily on seemingly cogent glove evidence. It presented a left leather glove, found
at the crime scene, that contained blood that matched that of murder victim Goldman, and a similar right glove that was found in the police search of Simpson’s compound. However, when the prosecutor asked Simpson to try on the left glove in front of the jury, it was much too small to fit on his hand. This mismatch led defense lawyer Johnnie Cochran to argue to the jury, “If it [the glove] doesn’t fit, you must acquit.”

The dream team of lawyers so effectively impeached the evidence supplied by the police investigation that on October 3, 1995, after only three hours of deliberation, the jury returned a unanimous verdict of not guilty. The one-hundred-and-thirty-five-day trial was over, and O. J. walked out of the court room a free man.

How could Simpson not be guilty of the double murder? Such a verdict was so much at odds with the narrative that had begun in the media, from the day of the televised car chase fifteen months earlier, that an explanation had to be provided to the public for this apparent contradiction. The theory offered by prosecutors, police, and pundits was “jury nullification,” a doctrine that allows a jury to ignore the evidence and acquit the accused if they believe the law itself is unfair. It can be traced back to runaway slave cases in the early 1800s, when juries in anti-slavery states refused to convict runaway slaves because they believed slavery laws were unfair. As Simpson was being tried for murder, and his legal rights were well represented, intentionally ignoring the evidence—if indeed that is what occurred—would also be a miscarriage of justice on the part of the jurors. In any case, the relatives of Goldman and Nicole Brown Simpson sued O. J. Simpson for wrongful death in civil court, which uses a lower standard of proof than a criminal trial. In February 1997, the jury awarded the plaintiffs $33.5 million—a judgment that literally bankrupted Simpson.

He was still technically not guilty of the murders, so a confession was needed to remedy the jury verdict and restore the
narrative. In 2006, Judith Regan, the editor of ReganBooks, a subsidiary of Rupert Murdoch’s News Corporation, persuaded Simpson to sign his name to a work of fiction that would be called
If I Did It: Here’s How It Happened
. She offered him a $1.1 million advance, as well as a percent of the profits, at a time when he was desperate for money. The plan was to make the book into a TV special for the Fox television network, also a subsidiary of News Corporation. As Regan explained it, the purpose was to bring “closure” to the case. A ghostwriter, Pablo Fenjves, was hired to write the fictional account of how an O. J.–like character comitted the murders. Before it could be published, word of it leaked to the
National Enquirer
, causing such a firestorm of charges that O.J Simpson, Regan, and Fox television, were exploiting the crime for profit, that Murdoch fired Judith Regan, canceled the television show, and withdrew the book from publication.

But the effort to publish a confession from Simpson continued. A Florida bankruptcy court awarded the rights to the ghostwritten book to the Goldman family, which changed its title, without O. J.’s approval, to
If I Did It: Confessions of the Killer
. They then effectively dropped the key word “if” by printing it in such minute letters that it actually fitted in the dot over the “I” in the title. So the title appeared to be:
I Did It: Confessions of the Killer
. In addition to this legerdemain, the book included a chapter by Dominick Dunne implying falsely that Simpson had actually confessed to the crime. The ghostwritten fiction, passed off to the public as a truthful confession by O. J. Simpson, became a huge best-seller in 2007. In the court of public opinion, a confession, albeit a fraudulent one, had finally been extracted from Simpson. On the books of the L.A. police department, the 1994 murders remain, however, unsolved crimes.

The only viable alternative theory is that another party, possibly one with whom Simpson was acquainted, committed
the murders, and O. J. later stumbled on the crime scene and cut himself there. While such a theory could account for the DNA evidence, it does not account for the awareness of guilt that Simpson displayed after the crime, first by fleeing to Chicago, and then, during the car chase, holding a gun to his own head. These actions, in conjunction with the evidence at the trial, convince me that he was the perpetrator. In my view, the jury, which was subjected to unprecedented media exposure, opted to nullify the legal process.

CHAPTER 32
BRINGING DOWN DSK

May 14, 2011, was a fateful day for Dominique Strauss-Kahn, at the time the head of the International Monetary Fund and the odds-on favorite to replace Nicolas Sarkozy as the president of France. By late afternoon, instead of flying to Europe for a meeting with German Chancellor Angela Merkel, he would be imprisoned in New York on a charge of sexual assault. He would then be indicted by a grand jury on seven criminal counts, including attempted rape, sexual assault, and unlawful imprisonment; spend four days in the Rikers Island jail; would be placed under house arrest for over a month; and, two weeks before all the charges were dismissed on August 23, 2011, would be sued for sexual abuse by the alleged victim.

Strauss-Kahn, better known in France by his initials, “DSK,” had been arrested for allegedly attempting to rape a hotel maid at the Sofitel Hotel in New York. At first, prosecutors assumed that this was a simple case of a lustful master of the universe disregarding the laws of New York State. But they soon learned that things were not as they initially seemed, and they dropped all charges against Strauss-Kahn.

After the prosecutors dismissed the charges against Strauss-Kahn, it was revealed that DSK had become a prime target of French intelligence at least two months before the Sofitel incident. French authorities were intercepting communications of his associates, and, as is evident from the hotel’s security cameras, anticipating his arrival at the hotel. This raises the
mystery: Did Strauss-Kahn’s political downfall proceed from his own lust, or from the machinations of those out to derail his election? Or was he a victim of both? To reconstruct the elements of this continuing mystery, I have used videos from the hotel’s CCTV cameras, electronic key-swipe records, and cell-phone records. Here is what unfolded.

The day began normally enough. According to room-service records, a waiter knocked on the door of DSK’s four-room suite shortly after 9:30 a.m. and brought in the breakfast DSK had ordered. It was left for DSK in the dining room on the far side of the living room. But when DSK went through his messages, he discovered that he had a potentially serious problem with one of his BlackBerry cell phones, which he called his IMF BlackBerry. This was the phone he used to send and receive texts and emails, for both personal and IMF business. According to DSK, who I interviewed in Paris in April 2012, he had received a text message that morning from a friend in Paris. She warned him that at least one private email he had recently sent from his BlackBerry to his wife, Anne Sinclair, had been read by his political foes. It is unclear how these foes might have been able to receive this email, but if it had come from DSK’s IMF BlackBerry, he had reason to suspect that he might be under electronic surveillance in New York.

Since DSK had taken measures to protect his phone a month earlier, the warning that his BlackBerry might have been hacked was all the more alarming. At 10:07 a.m. he called his wife in Paris on his IMF BlackBerry, and in a conversation that lasted about six minutes, he told her that he had a big problem. He asked her to contact a friend, Stéphane Fouks, who could arrange to have both his BlackBerry and iPad examined by one or more experts in such matters. He wanted Fouks and his team to meet him at Charles de Gaulle Airport, where he would make a short stopover en route to Berlin.

DSK had no time to do anything else about it that morning.
He had scheduled an early lunch with his twenty-six-year-old daughter, Camille, who wanted to introduce him to her new boyfriend. After that, he had to get to the JFK airport in time to catch his 4:40 p.m. Air France flight to Europe.

DSK finished packing his suitcase at around noon, according to his own account, and then took a shower in the bathroom, which is connected to the suite’s bedroom by an interior corridor. Just minutes later, there were several entries to his suite. The first entry was at 12:05 p.m., according to the hotel’s electronic key-swipe records (which are accurate only to the nearest minute). The key belonged to Syed Haque, a room-service waiter. According to Haque’s police statement, he had come to the suite to remove DSK’s breakfast dishes. If so, he turned left on entering the suite and proceeded through the living room to the dining room, where he would collect the breakfast dishes on his cart.

It is not clear how long Haque spent in the suite, or when he left, because the electronic key system records only entries, not exits.

The second entry came only about a minute later, at 12:06 p.m. This time, the key belonged to a hotel maid, Nafissatou Diallo, who was a thirty-two-year-old immigrant from Guinea. Ordinarily, cleaning personnel do not enter a room to clean when a guest is still in it. The presidential suite, however, is a large four-room apartment, so Diallo may not have known that DSK was in the suite when she entered. If her purpose was to clean the suite, she would need the cleaning equipment on her cart. But, according to her own testimony, her cart was locked in room 2820. (According to hotel records, the guest in 2820 had checked out at 11:36 a.m.) Diallo then left DSK’s suite, and the door locked behind her. The third entry was also made by Diallo. It was also recorded at 12:06 p.m., so she had spent very little time in the hall. We do not know why she returned, but when she did, she still lacked her cleaning equipment. At this
time, depending on whether or not the room-service waiter had yet exited, there was either one or two staff in the presidential suite.

Shortly after her second entry, she encountered DSK. What followed, and where it happened, is a matter of dispute, but there is no doubt about the sexual nature of the encounter. DNA evidence found just a few feet outside the bathroom door showed a combination of her saliva mixed with his semen. DSK does not deny that a sexual encounter occurred. The prosecutors determined that this encounter, whether forced or not, was “hurried,” because DSK’s phone records show that by 12:13 p.m. he was speaking to his daughter on his IMF BlackBerry—a call that lasted for thirty-six seconds. Since it was not a call that Diallo witnessed, according to her own account, she must have already left the room. If so, the sexual encounter had lasted no more than seven minutes.