To be sure, we can be fairly certain that as to at least one matter, Fuhrman was not just “talking trash” on the tapes, that he had “walked the talk.” In fact, in the entire fourteen hours of tape, it was the
only
incident that Fuhrman referred to which we know actually happened. Fuhrman told McKinny: “Two of my buddies were shot and ambushed. Policemen. Both down when I arrived. I was first unit at the scene. Four suspects ran into a second-story apartment, and we kicked the door down, grabbed a girl, one of their girlfriends, by the hair, stuck a gun to her head, and used her as a barricade. We basically tortured them. There were four policemen, four guys. We broke ’em. Their faces were just mush…there was blood everywhere. All the walls, all the furniture. We had them begging that they would never be gang members again…. The bottom line is you don’t shoot a policeman. That’s all there is to it.”
The
LAPD
found that many of the things Fuhrman said matched the details of a 1978 incident in Boyle Heights, an old, heavily Mexican-American enclave hard by downtown Los Angeles in which two officers were shot (they both survived) and which generated twelve citizen complaints against sixteen officers, including Fuhrman. It was the subject of an
LAPD
Internal Affairs investigation, but Fuhrman told McKinny that he escaped punishment. (All sixteen officers were cleared.) “Oh, they knew damn well I did it. But there was nothing they could do about it. Most of the guys worked 77th [Street Division] together. We were tight. I mean, we could have murdered people and got away with it. We all knew what to say.”
Several officers who were with Fuhrman at the time say he grossly exaggerated this incident of vigilante justice. But whether he did or not, the important point to know is that all the mileage made by the defense in the Simpson case because of Fuhrman was based on the supposition that he was anti
black
, that Fuhrman and his colleagues framed Simpson because he was black. Yet this incident, the
only
one in which we know for sure he was not spinning some sort of fantasy and making himself look as macho as he could, the victims weren’t black but Hispanic. More important, Fuhrman said that “
you
[not black, white, or any other color] don’t shoot a policeman. That’s all there is to it.” There is no reason to believe that if the shooters of the two policemen had been white, Fuhrman and his fellow officers would not have responded exactly as they did.
When I asked Detective Robert Tapia, Fuhrman’s supervisor at the West Los Angeles Division of the
LAPD
between 1989 and 1994, if he sensed Fuhrman was prejudiced against blacks during this period, he replied: “Mark’s not prejudiced against blacks, he’s only prejudiced against criminals, whatever their color.”
One thing, I think, is clear. Clark and Darden should have fought back with every resource at their disposal. They didn’t do that. They permitted Fuhrman to be tried and convicted by the defense attorneys through the testimony of complete strangers like Kathleen Bell, without the jury’s ever hearing from those who knew Fuhrman best. Certainly, comments like those I presented a few pages back would have reduced the damage to the prosecution’s case over the Fuhrman issue. “Up until they brought the [Fuhrman] tapes out, I thought O.J. was gone,” Simpson juror Carrie Bess writes in
Madam Foreman
.
What has to rank as one of the most startling utterances to come from the prosecutors in the Simpson case was William Hodgman, the senior member of the prosecution team, telling the
Los Angeles Times
after the verdict that he and his co-prosecutors had information “about how Mark Fuhrman as a detective was a very professional detective, that in a number of instances he worked to clear suspects who happened to be African-American when new evidence [exonerating them] came out.” But Bill, if you had evidence like this, don’t you think it would have been a good idea to share it with the jury? I was able to confirm one of these instances. On October 6, 1994, in West Los Angeles, Shawn Stewart, a white male, was shot to death out on the street in a drug deal gone sour. Witnesses identified Arrick Harris, a thirty-year-old black male with a criminal history as the killer, and Fuhrman, the lead detective on the case, secured a criminal complaint against Harris for murder. Before the preliminary hearing, Fuhrman received information that someone else was the killer. After going out and investigating further, he formed the opinion Harris was innocent. His partner, Ron Phillips, told me that Fuhrman “worked extremely hard on the case to establish that Harris was not involved. I remember Mark telling me, ‘Ron, we’ve got to prove this guy didn’t do it before the prelim or he’s going to sit in jail for a murder he didn’t do.’ He even got the DA to request a continuance of the prelim so he could have more time to work on the case.” Fuhrman proved Harris’ innocence and the district attorney’s office had the case dismissed before the preliminary hearing. Phillips said he furnished the prosecutors in the Simpson case with all of the above information, but they did not introduce it. With the revelations about Fuhrman on the Fuhrman tapes being perceived by everyone as devastating to the prosecution’s case, it’s almost criminal that the prosecution never introduced evidence like this to the jury.
L
et’s stop now and ask ourselves what the prosecutors
did
do right in this case. Well, they presented scientific evidence, such as Simpson’s blood being found at the murder scene, that proves Simpson’s guilt. True, but is this really anything to write home about? I mean, let’s grant that all of the prosecutors, as well as the defense attorneys, were intelligent, and most were also experienced trial lawyers. But presenting evidence favorable to your side, such as the prosecution’s presenting
DNA
evidence, or the defense’s calling witnesses whose testimony indicated the time of the murders was later in the evening than the prosecutors were alleging, is simply routine; it’s not even worth talking about. If a lawyer’s incompetence is so pronounced that he doesn’t even know how to go about presenting evidence favorable to his side, it’s time for him to turn the job over to one of the spectators in the courtroom.
Beyond that, I thought Darden’s opening statement was articulate and persuasive, and his cross-examination of the El Salvadoran housemaid, Rosa Lopez, was effective, although clearly she was not the worthiest of opponents. There was prosecutor Brian Kelberg’s cross-examination of Dr. Huizenga, in which the prosecutor’s considerable medical knowledge and careful preparation converted the doctor into a prosecution witness. In her opening argument to the jury, I liked Marcia Clark’s discussion of the hair and fiber evidence and how the murders were committed. I also liked her closing words to the jury in her final summation. But all of this was only getting 10 percent, instead of 110 percent, out of their case.
I should also point out to anyone who might believe that this has been Monday-morning quarterbacking on my part that they are wrong. I talked about most of these things long before the verdict. One example among many, a quote from me in the June 21, 1995, edition of
USA
Today
(over three months before the verdict) as the prosecution was nearing the end of their presentation without having introduced certain key pieces of evidence: “‘I’m stunned,’ Bugliosi said. ‘I’m aware of some very incriminating evidence they have and didn’t use, and when you prosecute a case you put on everything you have,’” whereupon I mentioned Simpson’s tape-recorded statement, suicide note, passport, etc. And when the prosecutors finally rested their case without introducing the evidence, I made the same comments in the July 8, 1995, edition of the
New York Times
. In fact, every time I was on radio and TV
during
the trial, one of the last times being on
This Week with David Brinkley
, I lamented the fact that the prosecutors were making very serious errors and could be doing “a much, much better job.”
Before we move on to final summation, let’s look at a few more miscellaneous areas of prosecutorial ineptitude in the Simpson case.
The DA’s office felt that domestic violence and abuse was so much an integral part of its case that in its December 14, 1994, “Response to Defendant’s Motion to Exclude Evidence of Domestic Violence,” an eighty-five-page brief, the very first words were these: “This is a domestic violence case involving murder, not a murder case involving domestic violence.” And later: “This is a domestic violence case at its core.” The brief set forth a considerable number of examples of Simpson’s physical and psychological abuse of Nicole. The brief went on to say that there was “a pattern” of abuse by the defendant that started almost immediately after he met Nicole in 1977 and continued, unabated, right up to the night of the murders, not a few “isolated events.”
In a January 18, 1995, ruling, Ito said the prosecution would be permitted to tell the jury about more than a dozen incidents where Simpson had allegedly beaten, frightened, and stalked Nicole during their tempestuous relationship. And in Chris Darden’s opening statement on January 24, 1995, he told the jury the murders were the final act in an abusive seventeen-year relationship. Darden set forth many instances of physical and psychological abuse, among them the incidents triggered by Nicole’s leaving Simpson in February 1992 and filing for a divorce. Simpson began stalking her, following her to restaurants when on dates with other men, staring at her and her date in an intimidating way, even peering through the window of her home and watching her in an act of intimacy with a man.
Yet at the trial Darden and Clark presented only one out of several incidents of stalking Ito had ruled they could, and even to call it stalking is a stretch. A husband and wife who lived next door to Nicole testified to seeing Simpson walking back and forth for two or three minutes on the sidewalk one evening in April of 1992 around eleven o’clock outside Nicole’s home on Gretna Green in Brentwood, where she lived before moving to her condo on Bundy. He never stepped off the sidewalk onto Nicole’s property but stopped twice to look towards her residence before leaving. They didn’t know why he was there and weren’t even sure if Nicole was home, since her car wasn’t parked in the driveway. Darden, in his summation, grossly misstated the evidence and said the witnesses had testified they saw Simpson step onto Nicole’s property and “peer through the window.” Cochran, in his summation, pointed out there was no such testimony by the neighbors.
Another incident they did not present was one just a few months before the murders in which Simpson saw Nicole with Ronald Goldman and another man having coffee at Starbucks and he stopped his car and angrily motioned for her to come over to him. In fact, the prosecution only offered about half of the incidents of domestic abuse Ito had ruled they could present, giving the defense a built-in argument that there was no pattern of domestic violence and abuse that inevitably culminated in murder, but just a few isolated incidents. The prosecution, for some mysterious reason, took a very robust case of domestic abuse that led up to murder and, eviscerating it in contravention of its own legal briefs and opening statement, transformed its case into a much weaker one. In his summation, Darden told the jury: “On domestic violence I told you [in opening statement] I was going to call a few other people. I didn’t. I think you got the point. And I can’t keep you here forever. Apparently this sequestration thing is a real drag, right, and I would like to end this experience.”
E
ven the chronology with which the prosecutors presented their case to the jury was unorthodox and gave the impression of being haphazard and choppy. The facts of a case should be presented in a natural, logical sequence so they can easily be followed and understood by the jury. This was not done in the Simpson case. Bear with me for a moment, and you’ll see how important this is.
Right from Cochran’s opening statement (before any of the evidence was even presented) to his and Scheck’s summation, the defense said the prosecution’s blood evidence was “contaminated,” and hence their constant “garbage in, garbage out” argument. In other words, once the blood was contaminated (which was just a theory the defense postulated throughout the trial but never once proved to be true), it was garbage, and therefore this garbage submitted for analysis could only yield a garbage result.
I don’t know much about
DNA
, but common sense immediately told me that the defense theory had to be bogus. Even if the blood at the scene was contaminated, why would the lab test on that blood produce the result that it was Simpson’s blood if it wasn’t? Howard Coleman, president of Genelex, a Seattle
DNA
laboratory, says: “Everything we get in the lab is contaminated to some degree. What contamination will lead you to is an inconclusive result. It doesn’t lead you to a false positive.” In other words, contrary to what the defense argued throughout the entire trial, contamination could only decrease, not increase, the likelihood of a
DNA
match—that is, only decrease the likelihood that the
DNA
in blood found at the crime scene and at Simpson’s estate would match the
DNA
in blood removed from Simpson’s body by the police after the murders.
The problem with the word “contamination” is that it connotes to everyone something negative. But negative to whom? Since contamination can only decrease the likelihood of a
DNA
match, the defense argument throughout the trial that the
DNA
test results shouldn’t be used against Simpson because the blood submitted to the lab was contaminated (by bacteria, soil, leaves, etc.) was patently absurd and fallacious. If at all, contamination should only be a prosecution argument. For instance, in a case where the prosecution is convinced that the defendant’s blood has been found at the murder scene, I can see the prosecution arguing to the jury that the reason there was no
DNA
match is that there was contamination of the blood, which
prevented
the match.