Listen to the remarks on this issue (before Ito ruled that the defense could not introduce the statement, or any portion thereof) by the two law professors employed by the
Los Angeles Times
as trial analysts on a day-to-day basis. One said: “What could be better [for the defense] than jurors hearing O.J.’s claims of innocence without subjecting him to cross-examination?” (But what’s
in
the statement crucified Simpson, out of his own lips, with virtually nothing in the statement helping him.) The other analyst said: “What a windfall. If the defense can get O.J.’s statement [the one that buries O.J.] before the jury without his taking the stand, then they have overcome a big hurdle. The defense can explain the cut on O.J’s finger without O.J.’s having to testify.” (But Simpson doesn’t explain. He says he doesn’t know how he got the cut.) This same analyst, a bitter enemy of common sense, told the media, “The statement that he gave police was not all that damaging. He doesn’t go in there and confess.”
So the prosecution is desperately trying to keep out evidence that can win the case for them, and the defense (originally) is
ostensibly
trying to get into evidence that which will lose the case for them. How do you make sense of this? You don’t. What I have described here is logic turned on its head, a topsy-turvy world, like the one Alice found on the other side of the looking glass, where nonsense makes sense. Or maybe it’s like a farce, or a cartoon, where one angry combatant says to the other, “If you don’t shut up, I’m going to hit your fist with my nose.” I have the type of humor that can laugh at absurdity, but visualizing in my mind’s eye what Simpson did to the two victims in this case, this type of insanity over Simpson’s statement only induces the most mirthless of smiles in me.
The theater of the absurd continued later in the trial when Cochran, having full knowledge that his own client had admitted to the police he had cut himself on his left middle finger on the night of the murders and was bleeding at his Rockingham estate, all
before
he left for Chicago, actually called a string of witnesses (including the American Airlines pilot on Simpson’s flight to Chicago, who got Simpson’s autograph, and Muhammad Ali’s photographer, Howard Bingham, a passenger on the flight) who testified they never saw any cut on Simpson’s left hand (as if they would have been looking, and he would have been displaying it). Maybe Johnnie Cochran is a better lawyer than I give him credit for being. Maybe he was shrewd enough to realize that with these prosecutors he could get by with virtually anything, with all the outrageous things he said and did. After all, he knows them better than I do. In fact, before this trial I had never heard of Clark and Darden. In addition to all the other reasons why Simpson’s tape-recorded statement should have been introduced, wouldn’t it have been effective for the prosecutors, after this deception by Cochran on the timing of the cut, to try to get the statement in during their rebuttal, and then point out to the mostly black jury in summation how Cochran (a fellow black) had deliberately attempted to deceive them?
A sobering footnote to the prosecution’s not offering Simpson’s statement. A few weeks after the verdict I spoke on the phone with one of the main prosecutors in this case, who worked on it behind the scenes fulltime. This is someone whom I respect, a salt-of-the-earth type who is one of the most highly regarded prosecutors in the office. When I asked him why he and his people hadn’t introduced Simpson’s tape-recorded statement, he told me something which sums up the inadequacy of the prosecution in a nutshell. He said to me, and I remember his exact words, “Well, Vince, you know, he never
did
say he did it.” If this doesn’t stagger you, then you probably wouldn’t notice if Mike Tyson punched you in the face. What difference does it make if he didn’t confess and say he did it? It means nothing at all. In fact, no one in his right mind expected Simpson to confess. Yet the prosecution treated Simpson’s not confessing as evidence which they wanted to keep away,
at all costs
, from the jury. But this is madness. To treat his not confessing as sufficient justification for not admitting the exceedingly incriminating things he
did
say is simply mind-boggling. It’s the type of thing that makes you wonder if you heard right.
But sure enough, the same prosecutor, in a subsequent television interview (a two-hour A&E special on the Simpson case on December 20, 1995, that I also participated in), said: “The statement was tantamount to a denial. And as a prosecutor, ah, such statements tend to be very self-serving, and there’s a tactical evaluation that goes into whether or not you’re going to admit a self-serving statement made by a defendant.” In an interview for the same show, another prosecutor who was part of the support prosecution team said: “There was enough in [Simpson’s] statement that he was clearly denying the crime. Yes, there were things we could have argued about, but the overriding fact was that what would have come out of this evidence was that he denied doing this.”
So what
if it’s obvious from Simpson’s statement that he’s denying guilt? Again, the jury obviously
already knew
Simpson had denied guilt. They knew he pled not guilty. That’s why they were there, that’s why they were having a trial. If he hadn’t denied guilt, if he had admitted committing the murders, there wouldn’t have been a trial. You’re going to keep out extremely powerful and incriminating evidence of guilt just to prevent the jury from hearing something they obviously already know? To these prosecutors, Simpson’s admitting dripping blood in his car, home, and driveway on the night of the murders and his having no idea how he got the cut were overridden by the fact he denied committing the murders. And these are the people who were representing the state in the case of
People of the State of California v. Orenthal James Simpson, a.k.a. O. J. Simpson
, Los Angeles County Superior Court Case BA#097211.
The first prosecutor I’ve referred to here did add in the interview for the A&E special something that had at least a small amount of substance to it. He said that one consideration for not introducing the statement is that Simpson’s cutting himself on the night of the murders came out anyway through two defense witnesses, Drs. Huizenga and Baden. But this, of course, is not a valid explanation. By the time the doctors testified, the prosecutors had already rested their case, and when they did so, the prosecutors would not have had any way of knowing for sure that there would be any testimony from the doctors about Simpson’s cuts. Secondly, Huizenga, who examined Simpson two days after the murders at the request of the defense, said he never asked Simpson, nor was told by him,
how or even when
Simpson had sustained the cuts he saw on Simpson’s left hand at the time of the examination. Nor was there any mention by Simpson to Huizenga of seeing blood anywhere.
On cross-examination by prosecutor Brian Kelberg, Baden testified that when he examined Simpson on June 17, 1995, Simpson told him he got a small cut before leaving for Chicago when he went into his Bronco to retrieve some items and he saw “some blood” on his finger (and cut himself again in Chicago on a drinking glass in his hotel room when he learned of Nicole’s death). In any event, this testimony was fleeting and tangential to the main testimony of both doctors. There was nothing to indicate to the jury it was a major issue, and what the jury did hear was secondhand. In no way can it even begin to compare with the prosecutors’ playing Simpson’s thirty-two-minute tape-recorded statement for the jury as the centerpiece of their case (aside from the scientific evidence), and the jury’s hearing Simpson’s own voice saying that he cut himself on the night of the murders but had no idea how. Merely telling Dr. Baden that he got a small cut and saw “some blood” on his finger is light-years away from the jury’s hearing Simpson acknowledge he was bleeding in his car, in his home, and on the driveway.
When I spoke to Detective Tom Lange about why the district attorney didn’t introduce Simpson’s taped statement, he said: “We [referring to himself and his partner, Phil Vannatter] pushed and pushed and pushed the DA to put this statement on because we knew it was devastating, but it was Marcia’s decision not to do it.” When I asked him why, he responded: “I don’t know. I respect Marcia. I think that because of the Fuhrman thing they [the prosecutors] were trying to distance themselves from the
LAPD
whenever they could.”
“But the time during the trial that the DA should have introduced the Simpson statement,” I said, “was long, long before the Fuhrman tapes even surfaced. Furthermore, this was Simpson’s own voice. What was the defense going to say, that it was you and Phil impersonating him?’
“Vince, I know what you mean. I agree with you,” Lange said.
When I asked Lange, a twenty-five-year veteran of the
LAPD
who has investigated over two hundred homicide cases, “Tommy, have you ever been on another case in your career where the DA decided not to introduce so much incriminating evidence?” he responded, “To be perfectly honest with you, no.”
A
nother very powerful piece of evidence that the prosecution mysteriously did not introduce, at least during its case-in-chief, was photos and videos of Simpson from his days as a TV football commentator wearing highly distinctive Aris Isotoner Light leather gloves identical (right down to the extra-thin leather, stitching pattern, V-shaped vent at the wrist, and cashmere lining) to the gloves found at the Bundy murder scene and on Simpson’s Rockingham estate. The photos and videos dated from a Chicago Bears game on December 29, 1990, through games in early 1994. In some photos and videos Simpson wore dark brown gloves (the color of the evidence gloves), and in others black.
A buyer from Bloomingdale’s in New York testified at the trial that on December 18, 1990, eleven days before the Bears game, store records showed Nicole had bought Simpson two pairs of these same men’s Aris Isotoner Light leather gloves for $77, the color and size unspecified in the charge-card receipt. Only three hundred pairs of these gloves, manufactured in 1990 exclusively for Bloomingdale’s, were extra-large (Simpson’s glove size) brown gloves, the type found at the murder scene and at Simpson’s Rockingham estate. And of these three hundred, Bloomingdale’s sold 200 to 240 of them in 1990. Pretty good circumstantial evidence of guilt, right?
It doesn’t even take a law degree to understand that the prosecutors should have introduced this evidence during their case-in-chief right after they marked the Bundy and Rockingham gloves as evidence, but they didn’t. After the prosecution rested, the defense, which knew from discovery that the prosecutors had this evidence, made every effort to ensure it did nothing during its case-in-chief which would allow the district attorney to introduce the evidence during rebuttal. Predictably, when Clark told the court in rebuttal she wanted to introduce the photos and videos in evidence, Cochran objected: “We’ve opened no doors on this…and we vigorously oppose any attempt on their part to introduce the evidence. Why didn’t they put it on in their case-in-chief?” Judge Ito, who was liberal to both sides on the admissibility of evidence, hesitated, but decided to allow the prosecution to present the evidence.
I don’t know about the videos, but I do know the prosecutors had a photo, a still frame, from one of the videos way back in 1994 before the trial started. I know because I sent them one I had seen, and I assume other people must have, too. So, inexplicably, the prosecution took an enormous risk, and could easily have been prevented from introducing this strong evidence of Simpson’s guilt.
Since the trial, the Simpson jurors, of course, have heard about much of the evidence of guilt that the prosecution, because of its incompetence, did not offer, such as the suicide note, passport, disguise, etc.
The Simpson jurors, naturally, have a vested interest in sticking by their verdict. Nonetheless, Carrie Bess, one of the Simpson jurors and coauthor of
Madam Foreman
with two other Simpson jurors, writes in that book: “Since I’ve been out, I’m dealing with a lot more things that I had no idea were involved. I was shocked, truly shocked, over a lot of the evidence that was held from us, because I would have thought if [the prosecutors] were truly trying to get to the root of this case, they would have brought everything to us. I don’t know how the defense would have handled it but I would have given it a lot more consideration because what we had to deal with was
no comparison
to what they had on the outside.”
And on NBC’s
Dateline
show on January 16, 1996, host Stone Phillips interviewed Carrie Bess, Armanda Cooley, and Marsha Rubin-Jackson, the three coauthors of
Madam Foreman
. Phillips mentioned Simpson’s taking off with Cowlings in the Bronco and having a gun, a passport, a lot of cash, and a disguise. When Phillips then asked why Simpson would be running away, and with all these items, if he wasn’t guilty, Rubin-Jackson said, “Right.” Phillips then said: “In the [upcoming] civil case, the question is not reasonable doubt, it’s preponderance of the evidence. In other words, is he more likely than not to have done it? How would you vote on that based on what you know now?” Whereupon Rubin-Jackson said: “I don’t want to get this wrong because I’m standing by my verdict, but based on what I’ve heard since I’ve been out, I would have to vote guilty.”
As we have seen, a great amount of very incriminating evidence was never presented by the prosecution to the Simpson jury. Despite this, Marcia Clark told the jury at the start of her opening argument: “We have exhaustively tried to give you every piece of information that could possibly be relevant to answer the question we are here to answer.” Unbelievable.
W
hen we get away from all the powerful evidence of guilt the prosecutors did not introduce at the trial and into the way they handled the rest of their case, we leave the realm of the unprecedented, the bizarre, and encounter more conventional manifestations of incompetence. I’m not going to nitpick the prosecutors’ performance. And if I had covered the trial I’m sure I would have been aware of many blunders in addition to ones I’m going to mention briefly here. But the mistakes and blunders I will mention are more than enough for the purposes of this book.