The observation that a trial is a search for truth might sound axiomatic to nonlawyers, but the idea is in fact the subject of intense ideological warfare in the legal community. An approach based on truth cuts across the traditional battle lines between government and defense. The “truth school,” as it is sometimes known, asserts that the paramount value is protecting innocent defendants from being wrongly convicted. But it is not at all troubled by guilty defendants who are convicted, even if the police may have violated some provisions of the Constitution in collecting evidence against them. That, of course, is the rub.
For more than a generation, the judicial system’s remedy for improper police work has been to exclude the evidence gathered by these means—and therefore sometimes the guilty go free. Truth-school adherents say that while they do not countenance unconstitutional action by the police, they believe that suppressing evidence is not necessarily the way to address such misbehavior. If the police violate someone’s rights, they suggest, it might be better if that person sued the cops for money damages in a civil lawsuit—or, alternatively, if the offending officers were administratively sanctioned for their violations of the Constitution. But in any criminal case, according to the truth school, the jury should be able to hear all reliable evidence against the defendant, regardless of how the police behaved. As Akhil Reed Amar, a professor at Yale Law School and a leading truth-school adherent, puts it, “Criminal trials shouldn’t be a sport or a game where judges just try to even the odds between the two sides. The point is that the jury should have all the facts available to it to make the right decision.” When judges must decide whether or not to provide all available information to the jury—about a defendant’s prior record, say—truth-school adherents generally believe that jurors should hear it and draw their own conclusions.
The day Lance Ito selected to hear argument on the admissibility of evidence about the domestic-violence incidents—January 11, 1995—turned out to be critical in the evolution of the Simpson case. It was the day he ordered the jury to report to a secret location—the Inter-Continental Hotel in downtown Los Angeles—for sequestration. The jurors were now officially twiddling their thumbs, with nothing to do. This personal imposition on these citizens, as well as the accompanying financial burden on the county’s taxpayers, gave a new urgency to Ito’s desire to get the trial started. Before January 11, reporters and other spectators were allowed in the courtroom on a more or less first-come, first-served basis. But on this day, for the first time the seats in the spectator section of Department 103 were marked with numbers, and the bailiffs admitted only those with passes for specific seats. Final preparations were nearly complete. A full complement of both victims’ family members filled the seats. No one could mistake that the crucial moment had drawn near.
The defendant showed the strain. O.J. Simpson has long been a compulsive talker. His friends knew that when they were speaking with O.J. on the telephone, they could safely put down the receiver for minutes at a time and return to a flowing monologue. No subject moved him to speak more than his relationship with Nicole. Visitors to Simpson in jail found him nearly obsessed by the subject. “Nicole wanted to get back together with me,” O.J. would say over and over again. “I wanted to get away from her. How can they say I killed her because I wanted her back?” Simpson even talked a lot in the courtroom. Every judge allows lawyers and clients some leeway in communicating in court, but Simpson always seemed to intimidate Ito to a certain extent, and throughout the trial the judge gave this defendant nearly free rein to jabber. This was never more true than on January 11. As the lawyers dissected O.J. and Nicole’s relationship, O.J. offered his own audible commentary as well.
The defense was represented by Gerald Uelman. The slow-talking professor from Los Angeles had something of a tin ear for public relations, and he began by making a gesture that neither Cochran nor Shapiro would have attempted. Uelman asked that Judge Ito exclude from the courtroom members of the Brown family because they might be asked to testify about issues that would be discussed in court that day. In fact, Nicole’s family had been exhaustively interviewed on this subject by police investigators; the defense had copies of all these reports. Uelman’s request only invited the prosecutors to wave the banner of victims’ rights. The Brown family, Christopher Darden said, “have an interest in hearing the truth and learning the circumstances surrounding and leading to the death of their daughter and sister. Having already suffered the death of a daughter and sister at the hands of the defendant, I doubt that there is anything that will occur in this court today … that can affect them any more than what has already happened.” Ito agreed. The Browns stayed.
The defense position on the domestic-violence evidence was simple and well stated by Uelman at the outset. He quoted the prosecution brief, which had stated, “This is a domestic-violence case involving murder, not a murder case involving domestic violence.” Uelman responded, “By attaching that label, by saying this case is a domestic-violence case, they seek to transform these proceedings from an inquiry into who killed Nicole Brown Simpson and Ronald Goldman on June 12, 1994, into a general inquiry into the character of O.J. Simpson, in which he will be called upon to explain every aspect of his life for seventeen years. And there is a fundamental problem with what the prosecution is trying to do here.” The problem, Uelman said, quoting a well-known case, was that “it is fundamental to American jurisprudence that a defendant must be tried for what he did, not for who he is.”
This was an unexceptional and entirely appropriate argument. But Uelman’s ponderous manner and tony credentials hid a street fighter’s soul. Uelman had his own “label” for this case. “None of the traditional earmarks of a domestic-violence or a relationship-violence homicide are present here,” he said. “How many domestic-violence cases involve multiple victims?
“How many involve the commission of a murder with the use of a knife?
“How many involve a complete silence preceding the murder, suggesting that the murder was committed by stealth rather than being preceded by any sort of violent confrontation or argument?
“In fact, if we had to put a label on this case based on these factors, the label we would put on it is that it bears all of the earmarks of a drug-related homicide, in which the frequency of multiple victims, the use of knives, the use of stealth, is much more frequent than it is in the case of domestic violence.”
As Uelman uttered the words “drug-related,” there was an audible intake of breath in the courtroom. The suggestion was (and remains) preposterous, even on Uelman’s own terms. First, by any theory, Nicole was the real target of the crime and Ron Goldman just happened on the scene—and his murder was entirely consistent with jealous rage from Simpson. Second, Uelman was simply wrong about knives. Drug dealers overwhelmingly prefer guns. Finally, most domestic-violence murders take place in or near homes, which means that frequently they are not overheard by others. Most important, neither Nicole nor Goldman had any ties to the drug world that would make them targets of a “drug-related homicide.” Uelman’s suggestion—a real calumny on the graves of these two dead people—marked the beginning of a new phase in the defense strategy. The red herring of the “drug hit” theory was the kind of move most characteristic of F. Lee Bailey, who, seated at counsel table beside the podium, gave Uelman a wide smile at the sheer deviousness of his gesture.
Uelman then proceeded to respond to the fifty-nine domestic-violence allegations one by one. He did so virtually in tandem with the defendant, who, seated between Shapiro and Cochran, provided a running commentary on each of the accusations against him. (Shapiro also recorded in a memo Simpson’s responses to all of the domestic-violence allegations against him.)
The first incident was from 1977, when Simpson was alleged to have broken some picture frames during the course of a fight with Nicole. “She broke them,” O.J. muttered to Cochran.
Uelman moved quickly to one of the most important incidents, the fight at their home on Janua
ry 1, 1989, after which O.J. pleaded no contest to battering Nicole. “With respect to this incident,” Uelman told Judge Ito, “we have police reports, we have accounts in the form of letters of explanation written by the defendant himself, interviews, and a good deal of information about what actually took place. And what apparently took place was that at the conclusion of a New Year’s celebration in which both Mr. Simpson and Nicole Simpson had a lot to drink, they got into an argument in their bedroom. And the culmination of that argument was a physical assault in which Mr. Simpson admitted that he slapped and punched Nicole Brown Simpson.”
Hearing this, O.J. nearly vaulted out of his chair. “I did not!” he told Cochran, who patted him on the shoulder and urged him to calm down. Both in conversations with friends and in several interviews following his criminal trial, Simpson had a precise, and narrow, view of his misdeeds in that New Year’s Day fight. In a deposition in the civil case against him, he said, “Never once did I ever hit her with my fist, ever.… Never once have I ever slapped Nicole.” As for what happened on that January day, he said, “I rassled her.… That means I had my hands on her, and I was trying to force her out of my bedroom. [A curious choice of pronoun, since she lived there, too.] She fell when she was outside.” Uelman’s description of the event—that O.J. “slapped and punched” Nicole—thus conflicted with Simpson’s own interpretation of it.
The prosecution had alleged that O.J. also beat Nicole after a gay man kissed their son, Justin. In his memo on O.J.’s responses, Shapiro wrote, “O.J. says this took place in Hawaii with the entire Brown family. Nicole said to O.J., ‘Lots of people think your daddy’s gay.’ O.J. got mad. Words were said, but there were no physical actions taken.”
The list of incidents went on. In 1993, after the divorce, Simpson hid in the bushes outside Nicole’s front window on Gretna Green and watched her have oral sex with Keith Zlomsowitch. O.J. to Cochran: “It was the sidewalk.”—i.e., he watched from a public place, not from among the bushes.
After that incident, Simpson stared Nicole and Zlomsowitch down at a restaurant in Brentwood. O.J.: “I just said hello to her.”
He stalked Nicole and sometimes wore disguises. O.J.: “Where does that come from?”
In the middle of the afternoon, during the course of the argument, a lawyer representing the Sojourn battered women’s shelter in Santa Monica appeared in Ito’s court and handed a thin envelope to the prosecutors. At the end of a long day in court, Lydia Bodin, one of the deputy district attorneys, disclosed the envelope’s contents. “We have received information from Sojourn shelter that on the date of June the 7th, 1994, Nicole Brown Simpson made a contact with Sojourn. She complained that she was being stalked. She was afraid. She felt confused. She didn’t know what to do, and she named the defendant as the person who was stalking her.”
Again, many in the courtroom gasped: The date was just five days before the murder. On hearing the words “June the 7th,” Cochran and Shapiro looked stricken.
It was a sad moment. By any measure, Nicole Brown Simpson was a wealthy woman, even after her divorce. Yet at her time of greatest fear, with her life literally on the line, she apparently felt unable to turn to the police, to her friends, or even to her family. She had nowhere to go except a public battered women’s shelter—the very charity that her husband was forced to contribute to after he beat her in 1989. And even Nicole’s final appeal to Sojourn, the courtroom recognized at once, did not manage to save her life. For once, not even O.J. Simpson had anything to say.
Uelman’s opposite number on the prosecution team was Hank Goldberg, and he seemed, in some respects, a miniature version of the professor. Soft-spoken, with a paleness of skin and hair that seemed to render him nearly invisible at times, Goldberg gave the nearly perfect legal argument on the domestic-violence evidence—especially for a judge like Ito, who had a predisposition toward the truth school.
Goldberg began with a hypothetical question for Ito. “Let’s imagine that we tried the case, Your Honor, without telling the jury that Nicole Brown Simpson was ever married to the defendant—was just a woman who was murdered,” Goldberg said. “Ronald Goldman was just a man that was murdered, and we did not tell them of the existence of any relationship at all.”
The proposal, Goldberg said, was self-evidently absurd. “It’s almost unimaginable, because the jury would have to call into question all of our evidence, no matter how strong it was, pointing to the defendant as the murderer, because why on earth would Orenthal Simpson kill an entire stranger, just this woman named Nicole.… Why would he have killed them so brutally? It wouldn’t make any sense, and it would undermine the prosecution’s case, clearly.
“It is only when you understand the relationship, and you understand the jealousy, the possessiveness, that the killing and the brutality of the killing of Nicole makes sense.”
Ultimately, in a scholarly ten-page single-spaced opinion issued on January 18, 1995, Ito allowed the prosecution to prove most, but not all, of the domestic-violence incidents it wanted to introduce. The prosecution would be permitted to use the most powerful evidence—the 1989 beating, the 1993 call to 911—but not all of it. With some apparent regret, Ito excluded Nicole’s call to Sojourn on June 7 (this was the part of the ruling the judge had shared with Larry King several days earlier). “To the man or woman on the street,” Ito wrote, “the relevance and probative value of such evidence is both obvious and compelling, especially those statements made just before the homicide.” But Ito correctly excluded Nicole’s statement as inadmissible hearsay—as are all “statements by a homicide victim expressing fear of the defendant, even on the very day of the homicide.”
Over all, Ito’s domestic-violence ruling amounted to a paradigmatic, and admirable, example of his truth-oriented judicial philosophy in action—as well as a buoyant send-off to the prosecution for opening statements. The judge’s preference for truth in packaging extended even to nomenclature. As Ito stated in his opinion, Simpson’s defense team had asked him to prohibit the prosecution “from using such terms as ‘battered wife,’ ‘battered spouse,’ ‘spousal abuse,’ ‘stalker,’ and ‘stalking’ because they are unduly prejudicial, inflammatory, and not supported by the evidence.” Ito dealt with this argument quickly. On the basis of what he had seen of the prosecution’s evidence, he noted dryly—and chillingly—“such restriction is not warranted.”
13. BLAMING FAYE
Christopher Darden paced in front of the jury box. As he walked, he kept his eyes on the floor, and his double-breasted jacket flopped open in front of him.
“Now, we’re here today obviously to resolve an issue, to settle a question, a question that has been on the minds of people throughout the country these last seven months. It certainly has been on the minds of my people up in Richmond, California, and friends in Fayetteville, Georgia, and all across the country. Everybody wants to know, and everybody I know often poses a question to me: Did O.J. Simpson really kill Nicole Brown and Ronald Goldman?”
The phrase “my people up in Richmond” was not an accidental choice. Both the diction and the reference to the location came fraught with meaning. In general, white Americans do not refer to their relatives as “my people,” nor do they, for the most part, live in Richmond, California. The overwhelmingly black city near Oakland was Darden’s hometown, and his mention of it marked a small effort at solidarity with the African-American jurors who were arrayed before him.
Darden was nervous, as any person would be in his position. On arriving at the courthouse this morning, January 24, the lawyers had run a gauntlet of twenty-six video cameras and perhaps twice as many still photographers. Seven news helicopters had circled overhead. Even the core group of spectators—the reporters and family members who had seen each other almost daily for several months—took on a hushed, almost reverent attitude on this day. There was an important new face among them, too. Eunice Simpson, the defendant’s mother—tall and regal, even though wracked by arthritis—appeared in
her wheelchair in the courtroom’s center aisle. As soon as Eunice Simpson arrived, Juditha Brown—likewise a grandmother to Sydney and Justin Simpson—gave her a hug. Hands fluttering nervously on her lap just before Darden rose to begin his opening statement, Juditha Brown dropped her eyeglasses, and Kim Goldman casually leaned over from her nearby seat to pick them up. Retrieving Juditha’s dropped glasses had cost Kim’s brother his life.
That it was Chris Darden who began the case demonstrated how much the prosecution effort had evolved over the months leading up to the trial. Shortly after Simpson’s arrest, Garcetti had asked Darden to conduct the grand-jury investigation into the Bronco chase. At the time, Darden was at loose ends; he had been named to run the D.A.’s Inglewood branch office, but he had not yet moved. Darden had an excellent reputation in the office as an investigator (less so as a trial lawyer), and Garcetti and Hodgman thought the grand-jury role made sense for him. But as the scale of the trial expanded, particularly in the scientific area, Clark and Hodgman realized they could not handle it all themselves. Clark, an old friend of Darden’s, urged that he be invited to join the trial team. The racial tensions in the case made the logic of adding Darden even more compelling. The case needed a black prosecutor.
Darden’s rise also reflected Don Vinson’s fall. By late January, the results of Vinson’s focus groups were a forgotten memory. The prosecutors had decided to make domestic-violence evidence a linchpin of their case. From an early date, Clark and Hodgman had divided the labor so that Clark would handle testimony about the events of June 12, 1994, and Hodgman would focus on the scientific evidence. That left the ever-expanding number of domestic-violence witnesses still to be assigned. Those went to Darden. And since the prosecution lawyers had decided they would attempt to prove that O.J. and Nicole’s relationship provided the motive for the murders, it made sense for Darden to begin the prosecution presentation to the jury.
The Run of His Life Page 28
