Outrage

a legendary prosecutor argues the case that should have been

The reasons O.J. Simpson got away with murder

The prosecution of O.J. Simpson was the most incompetent criminal prosecution I have ever seen, by far. There have undoubtedly been worse. It's just that I'm not aware of any. It hurts me to say this, since right from the beginning no one was more supportive of the prosecutors in this case than I. They are good people, they fought hard for justice, and I was proud of the ethical and professional way they conducted themselves. I was 100 percent behind them. To pump them up and help inspire them, I even sent them a telegram on the morning of their summations telling them that all right-thinking people were behind them, and closed by saying, "Now go get 'em in your summations."

I had a sense long before the trial that there might be a serious problem with the prosecution because the original prosecutors (Marcia Clark and David Conn) didn't seem to be taking charge of the case. For instance, in a big-publicity case, it's D.A. 101 that the prosecution has to instruct all its witnesses right off the top that they are not to talk to the media, particularly for money. My distinct impression is that this wasn't done until later, after some witnesses had already talked. This created problems for the prosecution, resulting in its decision not to call certain witnesses to the stand because it felt their credibility had been damaged.

Also, once a decision has been made to bring felony charges, the D.A. must make all important decisions having an impact on the case. Again, this wasn't done here. Remarkably, Conn (who was subsequently replaced by William Hodgman and then Chris Darden) told the LAPD--which properly called the D.A.'s office for guidance--to follow the advice of the Los Angeles City Attorney's Office to release the October 25, 1993 911 tape of Nicole to the media, which were clamoring for it. The tape saturated the news, and when members of the grand jury hearing evidence in the case heard it, the grand jury proceedings were aborted without an indictment.

And months before the trial, in August 1994, the prosecution embarrassingly admitted in court that without its knowledge the LAPD had disregarded the D.A.'s request and had not sent all of the blood samples to Cellmark Diagnostics Inc. in Maryland for DNA analysis. When the LAPD knows the D.A. is calling the shots on a case, this type of thing normally doesn't happen.

On December 1, 1995 I met with Dr. Donald Vinson at the old-line, conservatively elegant California Club. Vinson is recognized as a national authority in the field of litigation support. He has authored or contributed to several books and articles on litigation strategy and trial techniques. Vinson is currently chairman of the board of Decision Quest Inc., which specializes in jury research and trial techniques.

When the Simpson case broke, Vinson offered his firm's services free to Los Angeles County District Attorney Gil Garcetti, who accepted the offer. Decision Quest did provide the prosecution's elaborate electronic displays and exhibits throughout the entire Simpson trial. (Vinson says his normal bill for these services would have been close to $1 million.) But in the more important area of jury selection, although Garcetti was amenable to Vinson's assistance, Vinson says Marcia Clark was not. Vinson said that from the beginning, Clark and Hodgman looked askance at the emerging field of jury consultation. After the second day of jury selection, Clark told Vinson she didn't feel there was any need for his services in that area.

Clark's decision was reported in the media. The October 30, 1995 edition of Newsweek said: "Hired by Robert Shapiro just two months after the murders of Nicole Brown and Ron Goldman, Jo-Ellan Dimitrius quickly became a key member of the defense team. By contrast, prosecutors tried to hide their consultant, Donald Vinson of Decision Quest, and then banished him and his research from jury selection after only two days."

What is much more interesting and important, however, are the results of Vinson's jury research--which the prosecutors were furnished with--leading up to jury selection. In his discussions with the prosecution team, Vinson said Clark made it clear she preferred to have black women over black men on the jury, because domestic abuse is more prevalent in black households (continued on page 82) Outrage (continued from page 76) than in white families. Clark felt that black women were becoming more liberated and were fed up with being beaten. They would thus identify with Nicole and be angry with Simpson for having brutalized her. (Of course, partially militating against this is the fact that Nicole started seeing Simpson when he was still married to Marguerite, his black first wife, so Nicole had taken Simpson away from a black woman.) But the problem was that polls didn't support Clark's belief. In a 400-person phone survey conducted for the prosecution by Decision Quest, 23 percent of black males thought Simpson was guilty. But only 7 percent of black women thought him guilty.

More tellingly, Vinson and his staff also conducted several 15-person focus-group sessions. In these sessions, black females were "more vociferous" in support and defense of Simpson than were black males. According to Vinson, when the women were confronted with the fact that Simpson had beaten Nicole, they said that "every relationship has these kinds of problems." It simply was not a big deal to them. Decision Quest's research further showed that black females who were the victims of domestic violence (or who had encountered domestic violence in their families) were even more forgiving of it than those who hadn't.

"My working hypothesis, which I told Marcia and Bill," Vinson said, "was that black females were the worst conceivable jurors for the prosecution in the Simpson case."

Most disturbing, Vinson told me the focus groups indicated that black women viewed Clark "extremely negatively, actually calling her names like bitch. They hated her. They saw her as a pushy, aggressive white woman who was trying to bring down a prominent black man." Clark, Hodgman and Garcetti knew this, Vinson said. The results of the first two focus-group sessions were furnished to the prosecutors. In fact, in two subsequent focus-group sessions, Clark, Hodgman and Garcetti were present, listening in from an adjacent room. The same harsh sentiments were expressed against Clark by black women.

In late August 1994 Decision Quest conducted a focus-group session at a hotel in Phoenix, this time with 20 members. Clark and Hodgman (but not Garcetti) watched this session by closed-circuit TV from an adjacent conference room. The results were the same--black women didn't like Clark. This raises the question, of course, of whether the D.A.'s office, with knowledge of this fact and with a thousand prosecutors to choose from, should have insisted on going forward with a replacement prosecutor.

Marcia Clark, having learned that black women did not like her and were also more sympathetic to O.J. Simpson than black men were, nevertheless settled for a jury with six black females on it! There were only two black males. The jury that returned the not-guilty verdict consisted of eight black females and only one black male.

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I want to talk about the worst part of the prosecution's performance in this case, something that goes beyond incompetence. What the D.A. did in this case was unprecedented and unique. In all my years in the criminal law, I have never heard of another case where the prosecution decided not to introduce a great amount of incriminating evidence against the defendant. I mean, that's what the prosecutor does in a criminal case: presents incriminating evidence.

Here--and this is unbelievable--the prosecution never presented the suicide note Simpson wrote after he was charged with the murders. If he were innocent, why would he want to commit suicide? If he were innocent, he should have been outraged that he was wrongly accused of murders he did not commit, and desperately want to prove his innocence and find out who murdered the mother of his children. Simpson instead became completely passive and wrote a "To whom it may concern" letter that reads exactly like a suicide note.

The language of the letter reeks of guilt. Show me an innocent person charged with murder who would write a note like that.

For those who tenaciously maintain Simpson's innocence, and argue that the reason he wanted to commit suicide was that he couldn't live without Nicole, consider that Simpson is one of the most self-absorbed persons there could ever be, one whose narcissism is of jumbo dimensions. He gives no indication that he is the type of person who would kill himself over the loss of another human being. Also, such an act would be diametrically opposed to an integral element of Simpson's defense--that he was over Nicole and had started a life without her and therefore had no motive to kill her. And if he wanted to the because he couldn't live without Nicole, what conceivable reason would he have for not saying so in his farewell note? But nowhere did he say or even vaguely imply in the note that Nicole's death is why he wanted to end his life. In fact, in the letter he says that God brought his new girlfriend, Paula Barbieri, to him. He even tells her how sorry he is they aren't going to have their chance.

This note points irresistibly toward Simpson's guilt, yet it was never seen by the jury.

And it gets worse. After the slow-speed chase of Simpson and his friend Al Cowlings in the latter's Bronco, police found a gun in the vehicle (there were photos of Simpson holding this gun to his head during the chase), along with Simpson's passport and a cheap disguise (a fake goatee and mustache). Additionally, Cowlings, on being told to empty his pockets, pulled out a wad of currency totaling $8750. He told the police Simpson had given him the money when they were in the Bronco. The gun, passport, disguise and $8750, of course, have guilt written all over them. They could hardly be more persuasive evidence of guilt. Yet again, the jury never heard this evidence because, unbelievably, the prosecutors decided not to present it.

What reasons has the D.A.'s office given for not introducing all this evidence, including the slow-speed chase that led to its seizure? Simpson talked with friends and his mother on the Bronco's cellular phone during the chase. Predictably, he proclaimed his innocence, and the prosecution said it didn't want the jury to hear this. But that is silly beyond imagination. It was a self-serving and meaningless declaration. Of course he would say he's innocent. Did they expect him to confess to the murders?

Another argument the prosecutors have floated for not introducing the slow-speed chase and the evidence subsequently seized is that, as Hodgman said on television, "it was coming at a point in time when we were also starting to lose jurors. So we felt, on balance, a need to conclude our case and get into the defense case, if they were going to present one." I have a lot of respect for Hodgman, but that is complete nonsense. First, there's never a valid reason for not offering powerful incriminating evidence against a defendant. Even if jury fatigue is an issue, (continued on page 128) Outrage (continued from page 82) you always offer the strong incriminating evidence. It's not even a close call.

Second, that argument doesn't even apply here. The Simpson jury started getting antsy after the first half of the trial. Normally, a D.A. would offer the slow-speed chase at the beginning of the presentation of evidence.

Third, presenting evidence of the chase, and of the seizure of the defendant's gun, passport, etc., would have taken at most one or two hours on direct examination. (Mind you, these are the prosecutors who took eight days of direct examination of the coroner to elicit testimony that could have been introduced in two hours.) And, of course, relative to the extremely technical and boring DNA scientific evidence in the case--that went on for months--testimony about the chase and the seizure of the incriminating items in Simpson's possession could be counted on to perk up the jury.

Such excuses are merely efforts by the D.A.'s office to explain away an incredibly unwise tactical blunder.

One of the unanswered questions about this case that has fascinated many people is whether Simpson decided to kill Nicole on the night of the murders or had contemplated it for some time. Faye Resnick, Nicole's close friend, who knew Simpson well, is convinced Simpson planned Nicole's murder. And there is a solid piece of documentary evidence that circumstantially supports Resnick's view. The prosecution had this evidence, but along with the other evidence not introduced, it astonishingly elected not to introduce this evidence, either.

Item #146 of the LAPD property report in the Simpson case lists a fake goatee, fake mustache, bottle of spirit gum (to put on the disguise) and bottle of makeup remover (to remove the disguise). The goatee and mustache have been widely reported, but Item #147 isn't so well known. Item #147 consists of three receipts found in the Bronco inside the bag with the goatee and mustache. The receipts for the purchase of the disguise, remover, etc., are from Cinema Secrets Beauty Supply at 4400 Riverside Drive in Burbank. According to the receipts, the disguises were purchased on May 27, 1994, just over two weeks prior to the murders!

Again, let Simpson explain on the witness stand why he felt the need for a disguise shortly before the murders. And in addition to hearing whatever reason he came up with--most likely sounding silly on its face, and therefore incriminating--let's see if there is any evidence that he has ever worn a disguise at any other time in his life. Was this the first time, at the age of 47, and just before the murders, that he had a need for a disguise? And if he had bought the disguise for some innocent purpose, why was it necessary for him to bring it with him in Cowlings' car?

There's an old saying that celebrities are people who have spent all their time and energy trying to become famous, and when they finally do, they wear dark eyeglasses so no one will recognize them. This very definitely didn't apply to Simpson. By all accounts, he loved the attention of fans and people who recognized him. And when he didn't get it he would become depressed. Resnick, who was with Nicole and Simpson in public on many occasions, said that whenever Simpson wasn't noticed, "his mood would change and he would become angry." So why did Simpson purchase the disguises shortly before the murders? The D.A. never offered this evidence of guilt to the jury.

What makes the failure to do so all the more astonishing is that the prosecution alleged in its criminal complaint that Simpson had premeditated Nicole's murder. The prosecutors suggested to the jury that the premeditation commenced long before the night of the murders. For instance, defense witness Jack McKay, an executive for the American Psychological Association, testified at the trial that he had played golf with Simpson at a Hertz Corp. celebrity golfing event four days before the murders. McKay said Simpson appeared cordial and happy to sign autographs and shake hands. Clark asked him on cross-examination: "If someone were planning to commit murder, would you expect him to come to you if he wanted to get away with it and grumble about the person he wanted to kill?"

But the prosecutors presented no evidence at all that Simpson had premeditated the murders. All they offered the jury was their speculation. The lone piece of documentary, circumstantial evidence they had to support their contention was kept in their files. The jury never learned of it. Is it possible the prosecutors hadn't read the police property report closely and missed this evidence? Things like that happen all the time.

When you offer evidence such as the suicide note, passport, cash and disguise, you're offering evidence the significance of which even the simplest of laypeople can understand. For instance, running away from anything--whether it's adults running from the scene of a liquor-store robbery or children running from an apple tree in one's backyard--is automatically associated with a guilty state of mind. And the slow-speed chase, passport, cash and disguise obviously fall into that category.

DNA evidence, however, is totally foreign and alien to a jury. This is not to suggest that it shouldn't have been presented--though the prosecution piled complex DNA evidence on more DNA evidence, instead of condensing and simplifying its presentation. But under no circumstances should such evidence have been presented to the exclusion of so much of the conventional evidence available to the prosecution in this case.

Such conventional evidence has been the basis for hundreds of thousands of criminal convictions through the years. Jurors associate this type of evidence with guilt. And such evidence has two other built-in advantages: First, there is rarely a legitimate explanation for it other than guilt. Any attempted explanation by the fleeing party not only sounds silly but, if it is a fabrication, it can also be demonstrated as such in court. Second, this type of evidence confirms the scientific evidence (here, mostly DNA) and vice versa. The two types have a synergistic effect on each other.

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Most unbelievably, the prosecutors never presented an extremely incriminating statement Simpson made to the police on the afternoon after the murders. You give me a legal pad and 100 hours and I could have convicted Simpson on that statement alone.

The interview took place at Parker Center on the morning of June 13, 1994, from 1:35 to 2:07. It was tape-recorded by the interviewing officers, Philip Vannatter and Thomas Lange, and I have heard the entire 32-minute audio. The detectives were rather inexpert questioners who failed to pin down Simpson clearly on his precise activities during the previous evening. They also didn't ask good follow-up questions. Perhaps most remarkably, Vannatter and Lange were the ones who terminated the interview. Since, at the time of the interview, they already strongly suspected Simpson was guilty, why didn't they try to elicit as much as they could from him? Why didn't they continue until he said he didn't want to talk anymore, or until his celebrity lawyer finally deigned to enter the room and instruct Simpson not to answer any more questions?

In any event, the detectives did succeed in getting enough out of Simpson to convict him. Because Simpson's left middle finger was bandaged, they asked him: "How did you get the injury on your hand?" Simpson responded, "I don't know." He proceeded to say that the first time he cut his finger was in Chicago, but then immediately added words that suggested he had first cut himself the previous night, saying "but at the house I was just running around." He was "running around," he told the detectives, the previous night (the night of the murders) while he was getting ready at his Rockingham estate to go to Chicago.

If there's any doubt that Simpson admitted cutting himself the night of the murders, i.e., before he allegedly cut himself again later in Chicago, the following questions and answers clear it up:

Vannatter: We've got some blood on and in your car, we got some blood at your house and it's sort of a problem.

Simpson: Well, take my blood test.

Lange: Well, we'd like to do that. We've got, of course, the cut on your finger that you aren't real clear on. Do you recall having that cut on your finger the last time you were at Nicole's house?

Simpson: A week ago?

Lange: Yeah.

Simpson: No. It was last night.

Lange: OK, so last night you cut it?

Vannatter: Somewhere after the recital?

Simpson: Somewhere when I was rushing to get out of my house.

Vannatter: OK, after the recital?

Simpson: Yeah.

Vannatter: What do you think happened, do you have any ideas?

Simpson: I have no idea, man.

The detectives also tell Simpson that in addition to the blood in his car and home they found blood on the driveway of his home:

Lange: Well, there's blood at your house and on the driveway, and we've got a search warrant and we're going to get the blood. We found some blood in your house. Is that your blood that's there?

Simpson: If it's dripped, it's what I dripped running around trying to leave.

Lange: Last night?

Simpson: Yeah.

In another part of the interview, Simpson says: "I knew I was bleeding, but it was no big deal. I bleed all the time. I play golf and stuff, so there's always something, nicks and stuff, here and there." Of course, no one, not even a hemophiliac, bleeds "all the time." Not only isn't Simpson a hemophiliac, but "nicks" also don't cause you to bleed all over your car and home and the driveway of your home. Moreover, the cut to Simpson's left middle finger was not a "nick." It was deep.

In listening to Simpson's voice on the tape, he comes across as having a guilty mind. He expresses no outrage or resentment or even surprise that he's being considered a suspect in these murders. Also, the rather sluggish inflection and intonation in his voice reflect no eagerness to try to find out what happened. If anything, there's the slightest hint that he's cooperating only because he senses it would look curious if he didn't. He also seems to be somewhat hesitant and uneasy in his answers. This lack of spontaneity could indicate he's thinking about what the best answer may be for him to give. There's also no indication in his voice or his words that he is grieving over what happened to Nicole--nor even that he's shocked over what happened. Simpson's demeanor during the interview is consistent with and fortifies all of the other evidence pointing unerringly to his guilt.

This is what we have, then, from Simpson's tape-recorded interview with the LAPD detectives. From Simpson's own lips, he admits dripping blood all over his car and home and on his driveway around the time of the murders. And when asked how he got the cut to his left middle finger, he answers: "I don't know." When asked again later in the interview, he replies: "I have no idea, man." That ridiculous statement by itself shows an obvious consciousness of guilt. But much more important, what is the statistical improbability against Simpson's innocently cutting himself very badly on his left middle finger around the very same time his former wife and her male companion are brutally murdered? One out of 10 million? One out of a million? One out of 100,000? Even if we accept that exceedingly extravagant assumption, there's one further problem. When you cut yourself, unless you're in a frantic, frenzied state--as Simpson obviously was in--you stop the bleeding with your hand or your handkerchief and you put on a bandage. You don't bleed all over the place.

The statement could hardly be more powerful and irresistible circumstantial evidence of guilt. Yet, unbelievably, the jury never heard the tape because the prosecutors never introduced it into evidence. I hate to embarrass Clark and Darden, who are good people. But a brutal murderer walked out of the courtroom door with a smile on his face, in large part because of their incompetent performance at the trial.

The language of the letter reeks of guilt. Show me an innocent person who would write like that.

Such excuses are merely efforts by the D.A.'s office to explain away an incredibly unwise tactical blunder.