OJ Simpson Case After 13 Years II
Bill Long 7/5/08
Why The Jury Didn't Convict
Our first examination of the timeline and evidence of the case makes it look pretty bad for OJ. The flow of events between 9:37 p.m. and 10:55 p.m. (the 78 minutes when no one saw OJ--at least no one who is living) seemed to be something like this. OJ drops off Kato Kaelin after a eating at McDonalds. Sometime thereafter he leaves in the Hertz-owned Bronco, returning about 10:55, screeching to a halt and parking the vehicle at a strange angle in front of the Rockingham entrance to his estate, dripping blood (8 drops) from the car to his house (mixed blood traces are in the vehicle), entering the house, changing clothes and perhaps showering quickly, and then hopping into the waiting limo to take him to LAX at 11:15 p.m.
We know that a dog began barking at the crime scene about 10:15 p.m., that a neighbor heard some loud talking about 10:40 p.m. from the vicinity of the crime scene, that a discredited witness (for other reasons) said she saw OJ driving madly toward home at about 11:00 p.m. This is consistent with Nicole's death early--around 10:15 or shortly thereafter, of the killer's waiting around at the scene, of Goldman's "showing up" a little later (he had gotten off of work at the Mezzaluna on San Vicente Blvd at 9:50, gone home and changed (put on cologne?) and then gone to Nicole's condo to return sunglasses). It would have been difficult for him to have made it over there before about 10:20 or 10:25.
If OJ committed the crime, and all the circumstantial facts seem to suggest it, he would have had to move quickly to kill Goldman upon his showing up in order to get back to his home and be ready for his night-flight to O'Hare. We don't know the details. It is plausible that the killer knocked on Nicole's door (the condo door was open when police arrived shortly after midnight), she came out and perhaps even engaged in a conversation with the killer. Perhaps he knew that Goldman was coming over and laid in wait for him. Who knows? But it is entirely plausible, and even likely, given the blood situation, the timing, and the distance between residences, that OJ could have "done the crime."
What's the Defense to Do?
The first rule of defending someone in court is to use any legal means to get your client off. You are not engaged in a disinterested search for truth. You want to throw sand in the eyes of the jury, so to speak, to try to create doubt in at least one of them, doubt that allows them to vote "Not guilty" for your client. In order to do this you can do a number of things, but the most powerful is to have an alternative theory of what happened, a theory that is rooted in some facts or at least a reasonable hypothesis. You are mistaken if you think that the defense wants jurors to believe the alternative theory; all the defense wants is for one or more jurors to consider that the alternative theory may have a little more than a grain of truth in it. You also, in getting to your theory, have to impugn the integrity and competence of the people collecting and presenting evidence, and that is a slightly easier task. But the theory is what will allow you to get your client "off." It is too risky just to argue incompetence in collecting blood samples; the jury might respond, "Yeah, he made some mistakes, but there never is real perfection in this life. He did the best humanly possible."
So, How Did Things Fall Apart?
Things fell apart the first day when the prosecution decided to pursue venue in downtown Los Angeles rather than in the Santa Monica area. The latter would have resulted in a white jury; as it was, the final makeup of the jury (recall the changing nature of the jury during the nine-month trial, as one after another asked to be recused?) was 2/3 African-American. Race may not have been on the prosecution's mind at the beginning of the case, but they were naive if it wasn't. Indeed, it must have been, since the 2nd chair for the LA District Attorney was an African-American, Christopher Darden. Indeed, I think that Johnny Cochran skillfully played off Darden's race to goad him into poor decisions at times.
Then, there was the fact that DNA evidence, fairly new at the time, wasn't clearly explained to the jury. Alan Dershowitz, one of the "dream team" lawyers, later confessed that he didn't understand most of the DNA testimony. Some jurors later said that they felt the prosecution's witness on this score, Dr. Cotton, "talked down" to them--a definite "no-no" if you want the jury to support your case. I think we had the reality of a beleaguered prosecutor, Marcia Smith, being fully outnumbered by a skillful array of expert defense attorneys, probably not having the time (skill?) to walk Dr. Cotton through all her testimony so that DNA could be explained in a crystalline fashion to a jury. But then, on the defense side, you had Barry Scheck and Peter Neufeld, who were probing new areas in the intersection of science and law, who only had to muddy the waters a bit and the jury was utterly muddled. Jury's don't give you murder convictions if they are utterly confused.
It didn't help the prosecution's case that their criminal lab, led by Dennis Fung, was considered by many (of course this came out in testimony) to be one of the least careful large-city labs in the country. For example, Fung admitted storing some of the blood samples in plastic bags, a definite "no-no" as Barry Scheck pointed out through a textbook. Why? Because the refrigerator in the police van wasn't working and they had to preserve the blood in something. In addition, the defense made a lot of the minimal qualifications and experience of a junior criminologist (who happened to be a woman about Nicole's age), and showed videos where she obviously was inadvertently contaminating samples (using one swab on three blood samples, for example). The jury thus got the impression that a barely competent operation was at work here.
Fuhrman --Cinching the Case
But it was the performance of Mark Fuhrman, the racist originally from Gig Harbor, WA, that sealed the prosecution's case (against it, that is). He became the focus of the "planting evidence against OJ" defense. Especially when he was caught in a blatant contradiction about not having made racist statements in the past decade (and later was convicted of perjury for so saying this), the case turned from a search for Nicole and Goldman's killer (anyway, as we know, OJ is spending all his time searching for them now), to a situation where viewer and juror alike wondered what new revelations were to come to hurt the prosecution. At the end, the "politically correct" prosecution team of a working mom (who had child care responsibilities) and an African-American man were no match for the "old" boys. It was sort of a lesson in the reality that political correctness may get us through about 80 percent of the hurdles in life, but when you really want to be bailed out, go for the old guys (there was a younger guy--Scheck, and an older African-American guy--Cochran--too).
It is somewhat amazing to me that Furhman's appalling performance has been "rewarded" in some ways since then. He has become a successful author and a frequent commentator on conservative TV and radio shows. He even had a popular show in the Spokane-area for a while. He set up shop in Sandpoint, ID, not far from where the Aryan Nation was headquartered in the 1980s and 1990s.
OJ wasn't convicted because the ace defense team created doubt, even if its theory of planting evidence seemed unlikely. The defense presented enough evidence of incompetence and venality that a reasonable juror or two could have used the OJ case as a proxy for hitting the LAPD upside the head. And, even though Marcia Clark might be known as the smartest person in the room by her friends, she was no match for the tried and true old guys who took control of things in defense of OJ. It was a stunning defense performance.