The Search for Justice (12 page)

We were ready to go, and they were not.

A
s he became more involved in the decision making—and more knowledgeable about the judicial process—O.J. began adjusting his
hope of being home in time to go trick-or-treating with his kids for Halloween. Maybe Thanksgiving made more sense. Christmas
at the latest. We couldn ’t have imagined that it
would
be Halloween—a year later.

In my opinion, we were ready to go ahead with a preliminary hearing the following week. The prosecution didn ’t expect us
to be prepared so soon—I ’m sure they believed we would ask for a waiver of time. Putting the pressure on them, and ourselves,
was a risk. But it was one I wanted to take.

Getting ready for a preliminary in such a short time required an effort that, as always, paralleled the prosecution ’s. My
associates, Sara Caplan and Karen Filipi, put in extraordinarily long days, checking and cross-checking motions, witness statements,
and reports and memos from the investigators. Since Karen had recently left the district attorney ’s office, she was very
familiar with their procedures, and Sara, a Phi Beta Kappa graduate, was as diligent as she was smart. I knew they wouldn
’t miss anything.

The clerical work alone was daunting: There were fourteen people on our document-distribution list, so every memo, every
motion, every piece of paper was duplicated fourteen times and distributed. We ’d experienced a lot of document bootlegging
during the Brando trial, so the duplication process had to be monitored very closely. If the originals were taken out of the
office to a copy service, someone from the office would stand beside the machine and watch every piece of paper that went
in and every piece of paper that came out. When paper jams stopped the photocopiers, Bonnie took the crumpled paper home and
destroyed it there. She kept a close eye on the gentlemanly Dean Uelmen as he sat in the research library poring over law
books, drafting motions, and writing in longhand on yellow legal pads. Not one of his discarded yellow sheets was ever allowed
to sit in a trash can or on a tabletop.

Barbara Wolf devised a complex computerized tracking system for the forensic evidence—blood, hair, body fluids, fabric, clothing
items—that had been gathered at the crime scene and was going out to labs for analysis. As part of discovery—the mandated
exchange of information between the prosecution and the defense—we would receive memos or lists of items, their destinations,
and all ultimate test results. Wolf and Baden would then chart everything. The list, which was originally numbered I through
60, was close to 400 by the end of the trial.

Knowing that the tabloids would go through people ’s garbage, I got a paper shredder for the office and home, and Bob Kardashian
and Skip Taft each got one as well. In addition, we began to pay extra careful attention to the messages coming in on the
phone lines, as Bonnie screened them and passed them on to Bill Pavelic.

There are two different strategies a district attorney can use at a preliminary hearing. One is the bare-bones approach: presenting
a small amount of evidence to get by the “probable cause” burden set by law, which is quite minimal. In the second approach,
all, or nearly all, of the evidence is laid out, in a process that almost resembles a dress rehearsal for the trial itself.
This
is often done with high-profile cases, so that the prosecution can publicly demonstrate the strength of its case and at the
same time counter any possible cynical public opinion.

If the bare-bones approach to a preliminary was used against Simpson, the public might wonder where all the evidence was.
And if we had gone from a secret grand jury hearing directly to an indictment, the defense wouldn ’t have been able to see
the prosecution ’s cards. However, with the kind of preliminary hearing I suspected we were about to get, I ’d not only be
able to see what they were holding, I might even be able to raise the bet.

From the defense standpoint, a preliminary hearing can work in two ways: first, as a discovery tool, to find out about the
prosecution ’s case; second, as a way to lay the groundwork for the trial itself. In essence, a preliminary can serve as a
small-scale trial, and in the O.J. Simpson case, that ’s exactly what happened. What is normally a perfunctory stage in a
case very quickly became an essential part—if not
the
essential part—of the Simpson defense strategy. And within two weeks of O.J. ’s arrest, we had laid the groundwork for the
trial that we knew was coming.

From the very beginning, we believed the scientific evidence would be the strongest part of the D.A. ’s case, and we would
most likely have to embrace the science rather than attack it. DNA is accepted as legitimate in the scientific community;
and generally, whatever is accepted in the scientific community is accepted by the public at large, even though very few people
have any real understanding of it, including lawyers who practice in the criminal courts on a daily basis. Since 1987, DNA
evidence has been admissible in most U.S. courts, although Washington, Arizona, Vermont, and Massachusetts have ruled it inadmissible
for the time being. So far, however, it ’s been used in more than twenty thousand cases.

Contained within our chromosomes—and identifiable in blood, blood stains, hair, semen, body fluids, and skin tissue—DNA (deoxyribonucleic
acid) is often referred to as the “building
block” or “genetic fingerprint” of human beings. More that 99 percent of human DNA is identical among individuals. It is the
less than I percent remaining that gives individuals (with the exception of identical twins) unique characteristics and can
make DNA a vital piece of evidence in a criminal case. Properly collected dried blood or semen stains, tissue fragments, or
chemically preserved whole blood can link a suspect to a scene or victim, a weapon to a victim, or a victim to a particular
location. A defendant ’s blood type is cross-matched with blood or tissue samples found at a crime scene, to see if there
is a match. Then lab technicians run a set of statistics that point to how likely—or not—it is that the match might be the
result of a false positive.

Initially, forensic DNA typing is performed through a process termed restriction fragment length polymorphism, or RFLP. Using
a technique called autoradiography, in which a radiograph resulting from the exposure of X-ray film corresponds to fragments
of DNA labeled with a radioactive probe, RFLP detects DNA sequences repeated a variable number of times among different individuals.
The technician then compares the autoradiogram with a sample obtained from a suspect.

However, if forensic specimens have deteriorated or degraded, there may not be an amount of DNA sufficient to do RFLP testing.
When that ’s the case, the next step is polymerase chain reaction (PCR) technology, which allows as little as one to two nanograms
of DNA to be amplified hundreds of thousands of times, in a process popularly called “molecular Xeroxing.” RFLP is considered
to be more specifically “discriminatory”—that is, precise; PCR is faster and can be applied to smaller samples, or to those
in poor condition.

Over the years, there has been a great debate about the admissibility of DNA evidence. With all science there are pitfalls,
and DNA typing, for all its scientific reliability, is not immune. There are three billion chemical units to each human being
’s heredity. DNA only tests for six of them. Another argument says that DNA statistics can be so overwhelming to a jury
that they effectively cancel the importance of other evidence, predisposing a jury to a prosecution ’s argument. In addition,
if specimens for analysis are not properly collected and preserved, their biological activity may be lost. Yet another argument
debates the reliability of “population genetics,” which places individuals and their DNA characteristics in relation to ethnic
groups. Additionally, there is subjectivity inherent in interpreting the results of DNA typing; that is, one forensic scientist
may interpret a test differently than another. And as with all forensic evidence, DNA evidence doesn ’t exist in a vacuum;
it must be interpreted in light of other information and other evidence. For example, although DNA collected at a particular
scene may link an individual to that scene, it doesn ’t tell us when that DNA was left there. Furthermore, although RFLP had
been admitted in trials all over the country, PCR had never been admitted in California by any appellate court.

I believed that the defense strategy should focus on the collection and contamination of the evidence, not on the scientific
analysis itself. I needed experts not to debunk the science (as was often the case in the early use of DNA evidence) but to
find the inevitable human errors and counter them with expertise.

I had never worked on a case before where DNA was involved, and knew little about it. However, I knew enough to realize that
the immediate challenge was not only educating myself in the science but learning how to make it understandable to a jury.
With the advice and recommendations of Michael Baden and Barbara Wolf, I put together a reading list, preparing my crash course
on DNA. I wasn ’t fool enough to anoint myself an instant DNA expert. I had to go elsewhere for that.

Although I ’d not met them, I had seen DNA experts Barry Scheck and Peter Neufeld on TV commenting on the Simpson case, speculating
on the role that DNA analysis would play in the prosecution ’s argument. Few defense attorneys had combined national reputations
in the field of DNA with acknowledged expertise as trial lawyers, but Scheck and Neufeld were at the top of the field. In
addition, they were noted for setting
up Yeshiva University ’s Innocence Project, the purpose of which is to use DNA to prove innocence on behalf of people already
convicted of crimes.

Michael Baden, when he ’d served on New York governor Mario Cuomo ’s commission on the use of DNA in criminal trials, found
Scheck and Neufeld lined up on the other side of the conference table. He was representing the police-and-prosecution side
of the argument; they were representing the defense side. Baden told me he thought they were brilliant; “very effective curmudgeons”
is how he described them. In asking them to come onto this case, I knew I ’d be presenting them with a dilemma: In order to
counter the prosecution ’s use of DNA, I needed them to point out weaknesses of the science they ’d worked so hard to establish
as an evidentiary tool. Nevertheless, they agreed to join us. It wasn ’t long before the office staff had dubbed the two New
Yorkers Simon and Garfunkel.

A few days after the Bronco chase, Baden, Wolf, and Lee met with Dr. Lakshmanan Sathyavagiswaran, the Los Angeles County coroner,
to examine the forensic evidence from the autopsies. Baden and Lakshmanan had known each other for some time. Baden, who years
before had hired Lakshmanan at the New York City Medical Examiner ’s Office, called him Lucky.

The district attorney had insisted that everything we do be videotaped, but I appealed to the judge that such action was not
only unnecessary, it was unprecedented. Even without the video cameras, Dr. Lakshmanan was exceedingly guarded in his conversations
with us. Although he and Baden had great respect and admiration for each other, there was no mistaking the battle line down
the middle of the room. Baden, for instance, was later to testify that although he was “allowed” to examine evidence, he wasn
’t allowed to photograph it; and the normally imperturbable Dr. Lee testified that “they wouldn ’t even give me a microscope!”

As they examined the evidence, our scientists found numerous
errors had been made. For example, they pointed out a very obvious brain contusion sustained by Nicole that Dr. Irwin Golden,
the deputy medical examiner who had actually performed the procedures, had completely missed. In addition, he had discarded
her stomach contents without performing the kind of analysis that would have helped narrow the time of death, and he hadn
’t swabbed either Nicole or Ron Goldman for semen samples, a standard procedure in murder investigations. What else, we wondered,
had he missed—or done wrong?