Another instance of the prosecutors’ inability to handle negative evidence is found in the testimony relating to Simpson’s response to hearing of Nicole’s murder allegedly for the first time. Clark tried to establish through
LAPD
detective Ronald Phillips that when he called Simpson at Simpson’s hotel room in Chicago the morning following the murders (6:05 a.m.) to notify him of his former wife’s death, Simpson did not respond as an innocent person would. She asked Phillips, “Did he ask you how she was killed?” “No.” “Did he ask you when she was killed?” “No.” “Did he ask you where it had occurred?” “No.” “Did he ask you anything about the circumstances of how his ex-wife had been killed?” “No.”
But on cross-examination, the detective said Simpson
had
asked him, when he was first told his wife had been killed, “What do you mean she’s been killed?” Although Simpson, by asking only this one question and no more, clearly did not react to the news as one would expect an innocent person to react, that one question did certainly go in the direction of the precise type of curiosity which Clark had tried to suggest that Simpson did
not
have. Either Clark did not realize that she should have brought out on her direct examination what came out on cross, or she didn’t know this information herself because she never adequately questioned her witness during trial preparation. In other words, I cannot exonerate her of one charge without thereby convicting her of the other. This type of situation occurred time and again at the trial, making it look to the jury as if the prosecution was deliberately trying to conceal from them relevant information which was helpful to the defense. Nothing can be worse for a prosecutor’s credibility with the jury. Simpson jury foreperson Armanda Cooley, in
Madam Foreman
, showed her disturbance with Clark when she said, regarding Detective Phillips’ testimony: “Why did we have to go through all that testimony on direct examination [by the prosecution] and wait until he was cross-examined to say, well, you know, there were differences here about what [Simpson] said and what his reaction was?”
The level of prosecutorial sophistication by Clark and Darden in this case was so low that I can’t even be sure that they know they were supposed to introduce evidence negative to the prosecution themselves. After all, if they knew, why did they fail to do it so often? My guess was that they were vaguely familiar with the technique, but it wasn’t something that they naturally did, that was automatic to them.
There
were
instances during the trial when the prosecutors did put the negative evidence on first. Even there, however, they failed in the most obvious effort they made at preemption.
The deputy medical examiner who conducted the autopsies on Nicole and Ron was Dr. Irwin Golden. According to the August 1, 1994, edition of
Time
magazine, several deputy DAs had urged Clark to get someone else assigned as the autopsy surgeon because of Golden’s alleged sloppiness, but she reportedly declined, saying, “It’ll be okay.” Clark was assigned to the case on June 13, 1994, and the autopsies were conducted on June 14, 1994, so she would have had time to intervene.
Golden had other problems. It was obvious at the preliminary hearing in the Simpson case that he was not a good witness, as many people are not. He couldn’t have been less personable, he gave curious looks to his questioners, and he spoke with little authority. Moreover, as opposed to many coroners, whose occupation one would never guess, Golden
looks
like a coroner.
In his autopsies of Nicole and Ron, the prosecution conceded that Golden made many errors. He discarded the contents of Nicole’s stomach, which would have helped pinpoint the time of death (Golden did, however, dutifully record the contents—rigatoni, spinach and black olives—and the state of the food’s digestion); he did not run a sexual assault test on Nicole’s body (he didn’t feel the need to, since Nicole’s intimate apparel was in place and there was no other evidence suggesting a sexual assault); he, or his assistants, mislabeled a container of Goldman’s bile as urine; he didn’t ensure that coroner lab technicians X-rayed the bodies; he failed to detect knife cuts in Goldman’s shirt and jeans; he failed to take a palm print from Nicole’s right hand; he overlooked a contusion on her brain; and so on. Errors of this sort occur in virtually every autopsy. It’s just that in this case Golden made more than usual, some thirty of them. And in a previous case, Golden reportedly had confused an entry with an exit gunshot wound, not an uncommon thing.
Feeling that Golden would be a liability and embarrassment on the witness stand, the prosecutors decided not to call him to testify at the trial. Instead they called Golden’s superior, the coroner himself, Dr. Lakshamanan Sathyavageswaran (hereafter, Dr. Lak), to testify to the autopsies that Golden had performed. Right off the top, this was a very poor strategy. It looked, once again, as if the prosecutors were trying to hide something from the jury, and this fact was spotlighted by the defense when Dr. Lak conceded on cross-examination that it was the first time in his career he had ever heard of the DA’s calling to the stand a doctor other than the one who had conducted the autopsy relevant to the case.
All prosecutors, all lawyers, in fact, have been confronted many times in their careers with very poor witnesses. But if you prepare them adequately, there’s no problem at all. There is no question that Dr. Golden could have been prepared to the point where (apart from his autopsy report, which was water over the dam) he would not have been a further liability. After all, he had been with the coroner’s office since 1981, had conducted more than five thousand autopsies, and had testified in close to a thousand cases during his career. The fact that he was still around means that he couldn’t have been that bad. If he had been, the DA’s office, long ago, would have insisted to the coroner that he not be used on any criminal homicide case. Golden’s colleagues, in fact, consider him to be competent. The prosecutor could easily have had Golden himself concede the errors he made in the Simpson case, and that would have been it. Even his mistaking an entrance for an exit wound in a previous case is no problem at all. Suppose it had gone as follows:
“Doctor, in the case of so-and-so, you apparently misidentified an entrance wound as an exit wound, is that correct?”
“Yes.”
“You do, of course, know the difference between an entrance wound and an exit wound?”
“Of course.”
“Would you briefly explain to the jury the differences between the two types of wounds, such as their configuration, the presence or absence of an abrasion collar, and so forth, which a pathologist such as yourself looks to in distinguishing these wounds?”
“Yes.” And the witness does so.
“How many autopsies in your career have you had where you had to determine whether a wound was an entrance or exit wound?”
“Probably five hundred or so.”
“In any of these other five hundred autopsies did you misidentify an entrance wound as an exit wound?”
“No.”
And that would be it.
Even if, because of Golden’s incompetence in a particular case, he reached an improper conclusion as to the cause of death, or his incompetence went so far as to affect the outcome of the case, it is not fatal when you concede it and also bring out that these were one or two out of five thousand autopsies. Instead, the DA hid Golden from the jury, and the defense kept reminding the jury of this fact.
But the DA’s mishandling of the situation went far beyond not calling Dr. Golden to the stand. Their handling of the coroner, Dr. Lak, was counterproductive. Dr. Lak’s testimony on direct examination in this case should have taken no more than two hours, at the very most. In the Manson case, with similar issues as to the time of death, the type of knife used, etc., and with seven victims and two coroners, and with 169 stab wounds, seven gunshot wounds, and many other types of wounds, I probably took about a total of two hours on direct examination. Here, the special prosecutor who handled Dr. Lak, a highly intelligent prosecutor by all accounts who was the head of the DA office’s Medical-Legal unit, apparently did not use his fine mind as much as he should have. But if Marcia Clark, the chief prosecutor, knew herself how to handle the testimony of the coroner, how could she have
permitted
this prosecutor to do what he did?
Dr. Lak was on the stand for eight entire days of
direct
examination, probably a record, going into extraordinary detail and depth on every single point imaginable. The testimony even included a reenactment of the murders themselves, with Dr. Lak playing the villain’s role. But none of this was necessary. The coroner only had to be called to testify to key things like the cause of death (which, of course, everyone already knew), the number of stab wounds and which ones were the fatal ones, the approximate time of death, a description of the murder weapon or weapons (single-or double-edged blade, etc.), and whether any of the mistakes made by Dr. Golden were the type which could have affected the ultimate conclusions.
Examining Dr. Lak for eight straight days created problems harmful to the prosecution. Such an extremely detailed and lengthy direct examination could only convey to the jury that the prosecution felt there were many critical issues surrounding the autopsy (which there were not), and furthermore that the prosecution was very worried about these issues. If it wasn’t, why would it spend so much time on them? When you have the burden of proving guilt beyond a reasonable doubt, injecting this type of thought into the jury’s mind is nothing but a self-inflicted wound.
But the examining prosecutor, Brian Kelberg, was not satisfied with this. He wanted Dr. Lak to tell the jury
exactly how
these murders happened, right down to the order of the stab wounds. If I, being as pro-prosecution as I am, found myself saying, “How in the hell does the doctor know this?” you can imagine what the jury was thinking. It was pure speculation and conjecture. By trying to prove precisely what happened, the DA was setting up a burden for himself which he not only didn’t have under the law—the DA only had to prove Simpson committed these murders, not precisely how—but couldn’t possibly meet.
And when Dr. Lak was unable to come up with a plausible scenario himself as to any particular point, Kelberg was gracious enough to help him speculate. For instance, at one juncture, Kelberg suggested to Dr. Lak that with a blunt object like a fist or the butt of a knife, the killer inflicted a powerful head blow that knocked Nicole to the ground, then he inflicted four stab wounds to the left side of her neck, and as she lay there bleeding and unconscious, but not dead, the killer left her and entered the adjacent area to attack and kill Ronald Goldman, then returned minutes later to inflict the final and fatal ear-to-ear cut, from left to right, across Nicole’s throat. Could this have happened, Kelberg wanted to know from Dr. Lak. The coroner paused, then said: “That’s a possibility.”
This scenario suggested that the murders took place contemporaneously (as opposed to the more likely scenario that Simpson killed Nicole first, and when Ron showed up within seconds, killed him to eliminate a witness.) But if that was so, why didn’t at least one of the victims run away or at least scream? Apart from that problem with the hypothetical, why would the prosecution be offering these hypothetical scenarios that would induce its witness to answer using the word “possibility”? What could be gained by this? Again, the prosecution only had the burden of proving Simpson’s
guilt
beyond a reasonable doubt. It did not have the burden of proving
how
he committed the crime beyond a reasonable doubt. Above all, you do not want to bombard the jury for eight consecutive days with speculation, with conjecture, or with words like “possibility.”
Naturally, and predictably, when the defense called its own expert forensic pathologist to the stand, former New York City medical examiner Dr. Michael Baden, he testified that the county coroner’s testimony about “possible” ways the murders were committed was somewhat ludicrous. When Kelberg challenged Baden’s position on this point, Baden replied: “It’s possible [the murders were committed] by a bushy-haired stranger who is right-handed from behind,” he said, smiling, “but it’s also equally consistent with a bald-headed midget from the front who is left-handed.”
Baden, who testified he had billed the Simpson team in excess of $100,000 for his services, challenged Dr. Lak’s findings in several areas. Lak, for instance, concluded that Ronald Goldman was killed in one minute; Baden concluded Goldman could have fought for five, ten, or even fifteen minutes after his jugular vein was cut. He also disputed the conclusion of Dr. Lak, who once worked under him at Bellevue Hospital in New York, that Nicole’s head injury (believed by both sides to be before the fatal knife slash) would have rendered her unconscious.
What the jury was left with was experts on both sides speculating about what happened, never a healthy situation for the prosecution in a criminal case. Though a certain amount of this is inevitable, Kelberg, with the obvious knowledge and consent of the lead prosecutors, ratcheted the problem up considerably by his eight-day orgy of speculation.
I mentioned earlier how, with the errors committed by Golden in the autopsy, the prosecution finally was determined to preempt the defense. And Kelberg did so, in spades, pushing Dr. Lak to describe, in detail, all of Dr. Golden’s errors, and broaching, himself, the estimate that Golden had committed at least thirty errors, an estimate Dr. Lak acknowledged reluctantly. (Dr. Lak testified, however, that all of the errors were minor and insignificant lapses of judgment that in no way fundamentally changed or undermined the findings of Dr. Golden on the “big-ticket items.”) But in an eight-day direct examination of the coroner (which, as I’ve indicated, was seven and a half days too long), out of the hundreds upon hundreds of questions the prosecutor asked to preempt the defense, neither he nor his colleagues had it within themselves to ask the most important preemptive question: “Doctor, I take it you cannot testify to a reasonable medical certainty whether there was one or more than one killer?”