Coroners can many times reach this conclusion when, for instance, it’s obvious from the dimensions of the wounds that one or more than one knife was used in the killing. Kelberg did elicit from Dr. Lak that although it was his belief that only one knife with a single-edged blade was used to cause all of the stab wounds, he could not exclude the possibility that some of the wounds were caused by a knife with a double-edged blade. However, he not only failed to preempt the defense on the “reasonable medical certainty” language, but more importantly, after asking his knife question, Kelberg failed to ask the obvious but necessary follow-up question whether Dr. Lak could testify to a reasonable medical certainty that only one killer was involved. (The possibility of more than one killer was from the start a key argument of the defense, since the prosecution’s stated position was that Simpson and Simpson alone committed these murders. If the defense could establish that more than one killer was involved, although that wouldn’t exonerate Simpson from a theoretical or legal standpoint, it would severely harm the credibility of the prosecution’s entire case.) This question should have been an automatic one for Kelberg, particularly since he was so determined to preempt the defense. But it wasn’t. On cross-examination, Shapiro almost immediately asked: “Doctor, can you tell us with a reasonable degree of medical certainty how many killers were involved in this case?” “No,” the coroner replied. Of course, when Shapiro got this concession it had to have sounded important to the jury, whereas if it had been brought out matter-of-factly on direct examination, its impact would have been substantially diminished. Do you know what the headline was here in Los Angeles the following day, after Kelberg spent eight days trying to preempt the defense? “Defense Elicits Key Concession from Coroner.”
Shapiro, on cross-examination, spotlighted the fact that eight days of direct examination was far more speculation than substance when he asked this good question: “Isn’t it true, doctor, that after eight days of testimony, there’s only four facts you can testify to with a reasonable degree of medical certainty: that the deaths were homicides, that the fatal injuries were stab wounds, that the victims bled to death, and that they were killed between 9:00 and shortly after midnight?” Though the doctor gave a long, defensive answer, the essence of it was that this was true.
T
he real core of the defense case had to be a police frame-up. After all, Simpson’s blood had been found at the murder scene, and if it wasn’t planted there by the police he had to be guilty. Thano Peratis, the male nurse from the Los Angeles Police Department who withdrew blood from Simpson’s right arm at approximately 2:30 p.m. on the afternoon following the murders, testified at the preliminary hearing that he withdrew around “7.9 to 8.1 cc” (cubic centimeters) of blood from Simpson’s arm. This is the vial of blood that Detective Philip Vannatter carried to Simpson’s Rockingham estate so he could personally deliver it to police criminalist Dennis Fung. (See further discussion in Appendix C.) But at the trial the prosecutors could account for only 6.5 cc of the blood. The defense, throughout the trial, tried to persuade the jury that the missing, unaccounted-for 1.5 cc of blood was what
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detectives sprinkled at the murder scene and inside Simpson’s Bronco and home in their effort to frame him.
Now, since the prosecutors knew there was no frame-up and there had to be some innocent explanation for the discrepancy, wouldn’t common sense (if not on the part of the two lead prosecutors, then on the part of one out of the remaining twenty-three) have told them to go back to Peratis to ask him if he could have been mistaken, or ask Peratis’s coworkers if they could shed any light on the matter? I mean, does one have to be especially bright to think of something this obvious?
Here, with twenty-five prosecutors, not one apparently thought to do something that’s so basic a teenager would know to do it:
Pick up the phone and talk with Peratis.
Instead, long after his earlier testimony,
he
had to call
them
. During the trial, Peratis was recovering from coronary bypass surgery. When he learned that the defense was in effect building most of its case around what he called a “goof” on his part, Peratis told me he ran a test with water at the dispensary with his supervisor and found he had withdrawn a little over 6 cc. So, he said, he contacted the DA’s office and stated he was certain he had simply made a mistake in his preliminary hearing testimony, that he had in fact probably withdrawn about 6.5 cc.
What does the DA then do? They send one of their prosecutors, Hank Goldberg, together with a DA investigator and photographer, to Peratis’s home to interview him on tape explaining his “goof.” Judge Ito permitted the prosecution to play the tape before the jury, which was a blatant error on his part, because you simply can’t offer testimony against a criminal defendant without his having an opportunity to confront and cross-examine the declarant on the point of the declarant’s testimony. (Ito’s ruling was in clear violation of the confrontation clause of the Sixth Amendment to the U.S. Constitution.)
But shouldn’t the prosecutors have made the assumption that Ito would not permit them to introduce the tape without there being a defense attorney present to cross-examine Peratis?
And even if they assumed Ito would make a wholly improper ruling and admit the tape, why would they want to do this anyway? With the defense screaming about a law enforcement conspiracy to frame Simpson throughout the trial, why would they want to do something—going out to Peratis’s home without having a defense attorney present to cross-examine him—which could only look suspicious to the jury? Cochran, predictably, argued all these points in his final summation and suggested that the prosecution had actually put words in Peratis’s mouth and got him to say what he did on the tape. To compound the problem—remember Rosemary Woods’s eighteen-minute Nixon tape gap?—the video had a fourteen-minute gap. Defense attorney Peter Neufeld, smelling a rat, accused the DA investigator, on cross, of probably coaching Peratis during the gap, which, of course, the investigator denied.
But what is the even more obvious thing the prosecutors should have done in this case if Peratis had, in fact, goofed in his earlier testimony and he had only withdrawn 6.5 cc from Simpson’s arm as he said on the tape? When I saw how the DA was handling this matter it took me one second, and no longer, to think of it. There is no reason why it should take any of you readers any longer.
The obvious thing to do was to ask Peratis how much he
normally
withdrew from people’s arms, and if he said 6.5 cc, the next thing you do is go to his office and speak to the other nurses to see if they could confirm that Peratis normally withdrew only around 6.5 cc. If they could, you call these people to court, of course, as witnesses. And again, you also ask the nurses how much blood
they
normally withdraw, and if they too withdraw around 6.5 cc, and it appears to be a pattern, or a policy, you of course put this evidence on. Only in that way could the prosecution even hope to establish Peratis’s credibility—to satisfy the jury that Peratis wasn’t just trying, as an
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employee, to save the prosecution’s case, or worse yet, had been coached by the prosecutors.
(Peratis told me he has no knowledge that any of his coworkers were contacted by the prosecutors in this case. He said he normally withdraws between 6 and 8 cc. Although one side of the syringe Peratis used to withdraw the blood from Simpson was numerically calibrated, he said the whole process “is very imprecise, and none of us ever measure or check, because this is the first time in over thirty years working at the dispensary that anyone had made an issue of how much blood I had withdrawn. It just never came back up before.” I also spoke to Donald Baker, a coworker of Peratis’s. He said he normally withdraws around “5, 6, or 7 cc” of blood, but had no idea how much Peratis normally withdraws. He said no one from the DA’s office had spoken to him on this case. Even if we assume about 8 cc had, in fact, been withdrawn by Peratis, and only 6.5 cc were accounted for, many samples of blood were taken from Simpson’s reference vial for testing purposes, and every time you do that you lose some of the blood because it adheres to the pipette, the instrument that withdraws the blood. Secondly, the criminalists who took the samples out of the vial had no compelling reason to be superprecise when they recorded the amount withdrawn. How could they have possibly known at the time that there were actually people out there who would make the outrageous charge of a police conspiracy to frame O.J. Simpson?)
Does any of this require any intelligence at all? Isn’t this just common sense? Yet none of this was done in this case. There’s an old proverb that there are forty lunacies, but only one common sense. Voltaire once observed that common sense is not that common. We certainly know it wasn’t among the twenty-five prosecutors who represented the state in the Simpson case, and the lead prosecutors were supposedly among the top trial lawyers in an office of over one thousand prosecutors, the largest DA’s office in the nation.
It should be noted that several of the jurors, post-trial, have referred to the missing blood as the blood the
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planted to frame Simpson, and they found Peratis’s taped statement to be suspicious and not worthy of belief.
W
hen we look at the way the prosecutors handled the Mark Fuhrman issue, once again, it seems they hardly could have done any worse. How is it possible that the prosecutors ignored the allegations of two people—Kathleen Bell and Andrea Terry, both of whom gave every indication of being responsible people, neither of whom had any ostensible ax to grind—that Fuhrman had, in fact, used the word “nigger” in the ten years prior to the trial? Bell, a real estate agent who is white, said she met Fuhrman at a Marine recruiting station in Redondo Beach, California, in 1985 or 1986, and Fuhrman told her that if he had his way, “he would like nothing more than to see all niggers gathered together and burned.” Although Bell eventually said publicly she believed Simpson was guilty and did not want to testify because it might help his defense, she nonetheless had written a letter to the defense setting forth her contact with Fuhrman and his racial animus and use of the word “nigger,” a letter the prosecution had. In addition, the prosecution knew that Bell’s friend Andrea Terry, also white, was present with Bell at a tavern and dinette in Redondo Beach in 1986 when Bell ran into Fuhrman again, and she heard Fuhrman make similar remarks to Bell.
Why would Bell and Terry—and, subsequently, people like Natalie Singer, the former girlfriend of Fuhrman’s police partner, who said Fuhrman told her that “the only good nigger is a dead nigger”—be willing to commit perjury? Yet Marcia Clark referred to the charges of these people as “nonsensical allegations” and dismissively labeled Fuhrman’s accusers “Kathleen Bell and her ilk.”
But if Clark didn’t believe Fuhrman’s accusers, what about Fuhrman himself, her own witness? Didn’t she believe what he himself had said in the past? The prosecutors knew that in September 1981 Fuhrman had applied for a stress-related disability pension from the
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, and in interviews with psychiatrists, he used racist slurs and spoke of his antipathy for minorities. For example, he told Dr. John Hochman (page eight of Dr. Hochman’s December 16, 1981, report to the Workers’ Compensation Section of the Los Angeles City Attorney’s Office) that in the Marines, he “got tired of having a bunch of Mexicans and niggers, that should be in prison, telling me they weren’t going to do something.” These interviews and hearings were more than ten years before the trial, but obviously they were illuminating and lent credibility to what others had said about Fuhrman.
True, all of this was completely irrelevant to the murder trial—objectively speaking. But since the defense had desperately sought to inject race into the case and Judge Ito, in a gross judicial error, was going to let them get away with it, you don’t do what Chris Darden says (in his book) he did with Fuhrman: Simply ask him out of court if he had used the N-word, Fuhrman tells you no (which Darden says he didn’t believe), and leave it at that. Isn’t it common sense that you sit Fuhrman down in a room and tell him the facts of life? Instead of merely asking him, don’t you tell him there is little doubt in your mind that “nigger” has been one of his favorite words, and he’s
going
to testify to the truth on that witness stand? That he’s not going to jeopardize the prosecution’s case? I guarantee you. Give me a half hour with Mark Fuhrman and I would have made him cough up the fact that he had, in fact, used racial slurs in the past ten years. As part of your approach with Fuhrman, don’t you tell him that if he admits it, we can put it behind us? But if he denies it and the defense controverts what he said with witnesses the defense said they already had (the defense was claiming at the time there would be many more), it most likely would be blown completely out of proportion, thereby helping the defense case immeasurably, and there would even be calls that he be prosecuted for perjury?
Don’t you automatically do basic, fundamental things like this? And isn’t it very likely that if this had been done, Fuhrman would have admitted his past use of the word “nigger”? This fact could then have been brought out in the way the prosecutors wanted it to be brought out on direct examination. Fuhrman could have simply admitted using the term, telling the jury how his life on the streets dealing with the criminal element (see discussion later in this chapter) had caused him to use it. If true, he could have added that he no longer used the term. If this had been done, not only would Fuhrman probably have increased his credibility with the jury (Juror Marsha Rubin-Jackson, in
Madam Foreman
, says Fuhrman shouldn’t have lied. “He should’ve come right out and said ‘of course I’ve used the N-word. Tell me who doesn’t use the N-word out there dealing with these people [criminal element]?’ He would have been a lot better off.”), his use of the word “nigger” would have been a dead issue. Some damage would have been sustained, but if the prosecution had preempted the defense, it would have been a molehill compared to what the prosecution ultimately suffered the way the issue played out. The testimony of Kathleen Bell and the others, even the Fuhrman tapes, would have been irrelevant and inadmissible, since they would not be impeaching Fuhrman’s testimony. Isn’t that the way you prosecute a case? (Incidentally, I reject the view of many that knowing Fuhrman was a racist [the prosecutors claim they didn’t, that they were surprised by the Fuhrman tapes], the prosecution shouldn’t have even called Fuhrman as a witness or, some go further, even introduced the glove into evidence [since it wasn’t absolutely needed], and the whole Fuhrman issue would have been avoided. But that would have been even worse. The defense needed Fuhrman the way fish need water. He was easily their most potent weapon. And since they knew that Fuhrman had found the glove, and long before the trial had evidence of his apparent racism, they unquestionably would have called him to the witness stand themselves, making it look as if the DA was hiding Fuhrman from the jury. Since Fuhrman had found the glove, he was a material witness, and the defense would have had every right to call him to the stand to elicit his testimony with respect to it. Furthermore, the defense would easily have gotten permission from Judge Ito to treat him as a hostile witness, and cross-examined him in the same way they ended up actually doing at the trial. Make no mistake about it. Fuhrman was the defense’s salvation, and one way or another they would have gotten him up on the witness stand, even if they had to carry him up there on a stretcher to do so.)