The O.J. Verdict
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evaluating the prosecution's case

What went wrong? Was it the government's case to lose, or was the prosecution team handicapped from the start? Commenting here, in excerpts from their FRONTLINE interviews, are William Hodgman, a member of the prosecution team; Alan Dershowitz, a member of the defense team; Peter Arenella, law professor, UCLA; Kimberlé Williams Crenshaw, law professor, UCLA and Columbia University; Donald Jones, law professor, University of Miami; Shawn Chapman Holley, managing partner, Cochran Law Firm; Charles J. Ogletree Jr., Harvard law professor; Carl Douglas, coordinating attorney for the defense; Robert M. Ball, Beverly Hills attorney who represented Simpson juror Brenda Moran; and others.

Scott Turow

Scott Turow, attorney and author of bestselling legal thrillers, including Burden of Proof and Presumed Innocent.

Scott Turow

Read the full interview »

… What were the prosecution's big mistakes?

I hate second-guessing other lawyers, because I know that I've tried and lost cases, and somebody could sit there and say, "Should have done it this way," and they'd have been right. It's clear to me in retrospect that the Simpson prosecutors Marcia Clark, Christopher Darden, spent too long trying their case. The case, for example, against [Oklahoma City bomber] Timothy McVeigh that was tried just a little bit later was probably more complex and yet was put in by those prosecutors in six weeks.

They took six months to present the evidence against O.J. Simpson. And when it takes you six months to make your case, the jury is going to be left with either one of two impressions: Either your evidence is overwhelming, or in point of fact it's not, and you're laboring day by day to make it appear to be better than it is. And unfortunately in this case, it was the latter impression that the jury got left with. …

It is obvious from reading your books that you are very familiar with the way the police work. What are your thoughts on how the LAPD performed in this investigation?

… Los Angeles for many years had operated with a police department that was far smaller than other police departments had in areas of comparable or larger size, New York and Chicago being the most obvious examples. Now, when you have a police department that's only a portion of the size of other major cities, anybody in law enforcement will tell you that the reason they're able to quell crime is pretty simple, and that's because they break the rules all the time, and they really operate in areas where crime occurs frequently with disregard to the law. They break heads; they break rules. They break into houses. They rule by terror. And again, after the fact, we now know that all of the horrible events that were part of the Rampart scandal in Los Angeles were going on at this time.

So it's not very hard to understand that the suspicion of the L.A. police department in the minority community was enormous, and I think that the only way to have won that case once decisions were made that led to having an almost exclusively minority jury was to be able to stand in front of that jury and say: "I know what you've heard about the L.A. police; I've heard it, too. But I'm going to show you that's not the case here; that's not how we're prosecuting this case. Everything's on the up-and-up."

Instead they went in the complete opposite direction. They did it the way they've always done it. [Detectives Philip] Vannatter and [Mark] Fuhrman climbed over the wall of the Simpson home or compound in Brentwood and went in there. And again, it's obvious why they went in there: They wanted to question O.J. Simpson before he got a lawyer. Then they get on the witness stand when [defense attorney] Robert Shapiro moved to suppress the evidence they gained by entering the house and testified that they'd gone in there, because with Nicole Simpson dead several blocks away, they feared for the safety of somebody else inside the house. Now, there's no causal connection between those two things; that's rank speculation, not to mention the fact that it's obvious horse hockey.

And yet the prosecutors put them on the stand to say that, and the municipal court judge who heard that testimony acted as if she believed it. And I am one who said at that point, "They've lost, they've lost." Now, did I know that Fuhrman was ultimately going to get convicted of perjury? No, I didn't expect that, but it was obvious to me that they were on the road to hell.

Were they really that tone-deaf to the racial issue?

I don't think that they were insensitive. I mean, Christopher Darden's a black man and certainly knows more about African American experience firsthand than I do, but they proceeded on the assumption that it's always worked and it will continue to work in this case. And look, one of the things that always amused me about NYPD Blue is it was a very successful TV show; people thought of those cops as heroes, and they turned around and hit suspects all the time. People don't expect cops to be choirboys. So the prosecutors in L.A. figured, well, they know these cops are out there trying to get the right guy, and that's all they really care about, and all we have to show them is it's the right guy.

The problem, of course, when you're talking about the minority community is -- as an African American juror explained to me years ago, after holding out for days in a case -- when you're talking about African American males, there are not all that many heroes in the African American community. And it wasn't just that Simpson was a star athlete; he had this wonderful persona that pervaded many worlds. He was seen as bright and articulate, charming, funny. And they [the jury] had to give that up by saying that he's a criminal. And certainly the L.A. County P.D., the DA's office I don't think took proper account of what a big gulp that would be for any African American juror.

Why did the prosecution use Detective Mark Fuhrman? Many people, even some of the defense lawyers, say that state would have won if they just left Fuhrman out of the case. But they didn't.

In retrospect, the question of how everything happened is the usual comedy of errors. And I don't say that in a way to criticize either the L.A. police or the L.A. County DA's Office. As I recall the testimony, Fuhrman kind of wormed his way into the case that wasn't even properly his. But on the other hand, he was knowledgeable, and he was a very successful detective.

But one of the things that every law student ought to be taught about the Simpson case is that initial decisions can carry enormous consequences, because once Fuhrman goes into the Simpson house and is involved in taking those statements from O.J., he's in the case. If you're going to use the statements or the evidence that's gleaned as a result, he's in your case. He's your case.

And the same thing happened with the decision to indict Simpson by grand jury, which meant that the case had to be taken from the suburbs to downtown. And basically the decision is -- and Gil Garcetti claims that he made this decision consciously, and probably did -- you're going from a largely white, suburban jury to an inner-city jury by taking the case downtown, to indict it in front of the grand jury.

Now, Garcetti has said he had the [Rodney] King riots in mind. He didn't think that he could convict somebody of the stature of O.J. Simpson in front of a white jury, and so he decided to make sure that he would have an inner-city jury. That's what he says. and it's quite possible that that was his thought process. …

Were there alternatives to putting detectives Vannatter and Fuhrman on the stand?

There were alternatives to putting Vannatter and Fuhrman on the witness stand to tell what struck me as a fairy tale about why they went into the house. And the alternative was to say: "We're not going to do that. We'll live without that evidence. We'll rest our case on what the DNA analysis shows, and a lot of the extrinsic circumstances" -- which, quite frankly, were pretty compelling in and of themselves.

Or they could have taken advantage of something called the inevitable discovery doctrine and tried to argue that the evidence was illegally obtained but would have been discovered inevitably anyway and therefore it was admissible. Either one of those approaches I think -- and again, looking backwards -- would have given the DA's office the opportunity to look at the minority community both outside the courtroom and more importantly inside the courtroom in the jury box and say: "This isn't business as usual; this isn't sweeping police misconduct under the rug; this isn't pretending that the police don't break the rules. This is acknowledging the police break the rules and saying we're not going to have any benefit from it. We're going to try this case straight up, inside the white lines, and we're going to win anyway." …

Alan Dershowitz

Alan Dershowitz, member of the Simpson defense team and Harvard law professor.

ALAN DERSHOWITZ

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… What was the prosecution's theory?

The prosecution's theory was very simple: mountain of evidence. How can you explain the blood on the glove, the blood on the socks, the blood on the floor, the blood on the gate? It was a circumstantial case with overwhelming evidence, and a case that the prosecution easily could have won if they hadn't made so many mistakes.

Number one, they relied on lies. They overstated their case. They planted evidence. They didn't have to, but they did. They put on a policeman who was a Nazi lover and a perjurer and an evidence planter. That made our day, as the defense. And the defense decided to do something very simple: put on only truthful expert witnesses; put on no one who was in any way really controversial.

So the defense presented a credible case, [and we were] able to show that the prosecution's case was full of lies. That doesn't mean that ultimate truth was on one side or the other, but the defense got the jury to focus on the lies of the prosecution rather than on the innocence or guilt of the defendant. …

Why would the investigators have planted evidence? Didn't they have a strong case against Simpson without it?

I think they did have a very strong, winnable case without planting evidence. First of all, they weren't sure that the glove would not be excluded, and if the glove were excluded, then they needed the sock. And they didn't know at the time they tampered with the sock that the glove would be admissible. They also wanted a slam-dunk case. They wanted the strongest possible case.

I think one reason why the prosecution decided to bring the case in Los Angeles County, where they knew they would get a [pre]dominantly black jury, was they thought they were going to win, and they would rather win and convict a prominent black man by black jurors than by white jurors. They did not want a repeat of Simi Valley and Rodney King and white/black, black/white. They wanted a black jury to convict a prominent black man. And they made a terrible blunder by allowing eight black women to serve on the jury.

I think [prosecuting attorney] Marcia Clark believed that gender would trump race with black women, and it turned out that wasn't the case; that many of these women identified much more with their brothers and fathers and uncles, who had seen police harassment. They were black first and women second. ...

Did you get the sense that the prosecution felt they couldn't lose?

I believe that they thought they were going to win, and it would be better to win by having black jurors convict a prominent black defendant than having white jurors convict a prominent black defendant. And because they thought they were going to win, I think they overplayed their hand in different ways. They selected a trial team which was more photogenic, designed for television, than selecting the best lawyers. Marcia Clark was not a particularly good prosecutor and neither was Chris Darden. They could have done much better. They had much, much better people in their office. But I think they wanted a woman and they wanted an African-American, and they were interested much more in gender and race than they were in quality. And I think the prosecutors lost the case. …

Peter Arenella

Peter Arenella, law professor at UCLA.

Peter Arenella

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… Where did the prosecution go wrong?

Well, they went wrong from the very beginning of the case in terms of how they handled the initial decision to charge Mr. Simpson. There was no reason for the prosecution to rush to a trial. They could have started a grand jury investigation and then carefully got all their ducks in a row that looked at not only the physical evidence, but other evidence that could have been gathered. Evidence that was gathered for the subsequent civil trial could have been gathered in a reliable timely fashion for the criminal prosecution.

The problem once again was Mr. Simpson's celebrity status. His celebrity status explains why he wasn't arrested very early on in the case when the average defendant, given the blood evidence, would have been arrested immediately. Conversely, the average defendant might have been interrogated far more effectively by police officers after the arrest. Mr. Simpson waived his right to counsel, and the detectives handled him not like a criminal suspect, but like a celebrity. So this case went sour from its inception. From its very beginning, the prosecution simply botched it. …

I think the prosecution frankly played into the defense's hands. They went to trial before they were ready, before all the physical evidence had been collected. They went to trial, and they started the trial with not the physical evidence linking Simpson to the murders, but with a story of domestic violence going back to 1989. To start a trial on murder that shows not how Mr. Simpson did the murder but suggested why he might be motivated to do the murder, to start the trial that way is to start the trial with character assassination. Now, if it works, terrific, but the story of domestic violence didn't work. It didn't strip Mr. Simpson of his legitimacy in the eyes of the jury. It made the prosecution look bad. …

Robert M. Ball

Robert M. Ball, Beverley Hills attorney who represented Simpson juror Brenda Moran.

Robert M. Ball

… Why didn't the prosecution's domestic violence strategy work with the predominantly black women jurors?

The strategy of using domestic violence didn't work in this trial because domestic violence is a phenomenon that has been going on for years and there's just no significant correlation, between people engaging in domestic violence and people murdering in cold blood their spouses. There was just not a connection. It's rare. And for them to place so much stock in the notion that because he engaged in domestic violence that he must have killed her, created such a chasm in the logic [that] it cast doubt on the credibility of their case. It almost seemed as though they were reaching for straws, because if they had something more substantial, they wouldn't rely so heavily on [the domestic violence]. …

What did your client, Brenda Moran, have to say about the jury's decision to acquit?

Brenda said that they just could not buy the connection between O.J. Simpson having previously engaged in domestic violence and him murdering his ex-wife. That was too big of a leap. And she couldn't understand why they spent so much time trying to make that connection. [The jury] just didn't buy it. They didn't buy the lack of blood or other physical evidence in O.J. Simpson's home. She was of the belief -- and many jurors were of the belief -- that whoever committed this heinous murder had to be covered with blood. Well, in the trial it came out that O.J. Simpson came home and took a shower, and the LAPD did Luminol tests to check for blood in the shower. And they took loose his plumbing and pipes, and they found no [traces of] blood. And it was those sort of things that just in the minds of Brenda and the jurors, [was] enough to make them believe there was a reasonable doubt.

And the glove didn't fit. It really didn't fit. And they couldn't explain that. There was no explanation for this supposedly damning evidence of a glove left at the scene that was supposedly O.J. Simpson's, and it was stuck in her mind. When O.J. Simpson stood up and tried to put that glove on, it didn't fit. And what resonated in her mind later was, Johnnie in his closing argument saying: "If it doesn't fit, you must acquit."…

Todd Boyd

Todd Boyd, professor of critical studies at the University of Southern California School of Cinema-Television.

Todd Boyd

… I thought both Marcia Clark and Chris Darden were very arrogant and very condescending towards the way that they approached the jury. You know, Marcia Clark is a upper-middle class educated white woman, and it would make sense, based on her background, that the sort of feminist angle would be something that would appeal to her and something she might try and use. But when you talk about the composition of a jury, people who sit on juries tend not to be upper-middleclass, well-educated, white women, and so the very common black women who were on this jury probably are not attuned to the same theories of feminism that Marcia Clark was using to make that argument. And for that reason, I think it fell on deaf ears.

For these people, race is the defining factor in their life, and certainly they're women and they have issues that are connected to being women, but they define themselves by race. And so to come with this feminist angle was a mistake on Marcia Clark's part.

How did the prosecution's lawyers compare to the defense's lawyers?

Well, Johnnie Cochran will go down in history as one of the greatest lawyers in American society ever. When you talk about Clarence Darrow, people like this, when they write the history 50, 100, 200 years from now, Cochran's name will be on that list. So you're talking about a guy at the top of his profession, great deal of experience. … He had been in the game so to speak for a long time. Very experienced and very skillful.

Darden didn't have the experience. He didn't have the charisma, and his personality was such that on television, and I would assume in the courtroom as well, he didn't come across so strongly, particularly when going against Johnnie Cochran. Johnnie Cochran was like Michael Jordan, and Christopher Darden was like some 8th grade kid playing basketball in his backyard. I mean, it really wasn't even fair.

And Cochran I'm sure knew every move Darden was going to make before he made it.

Darden often played into his hands. You look at the situation about the glove. It's real interesting watching that dynamic, because you know there's this sort of black male code, that's unspoken but Cochran basically played Darden. He challenged his manhood. Darden bit. And here's O.J. struggling to put the glove on. You could make an argument that that turns the case. "If it doesn't fit, you must acquit." Right?

Do you think Darden was chosen to be a part of the prosecution's team because he was black?

Of course they chose him because he was African American. If you have two white prosecutors going against O.J., the racial animosity of the case gets ratcheted up that much more. And for African Americans watching this, it would have at that point clearly been the white man and the system against this black man. It turned out to be that anyway, and Darden was an attempt to maybe deflect some of that. But the point is, he was the wrong black guy. They should have made a better selection. …

Kimberle Williams Crenshaw

Kimberlé Williams Crenshaw, professor at the UCLA School of Law and the Columbia University School of Law.

Kimberlé Williams Crenshaw

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… Why didn't the prosecution take the jury consultants' advice that black women on a jury would be to a degree sympathetic to Simpson?

Well, first of all, the whole process of jury consultants is not a science. It's based on a bunch of hunches that might have criteria that might suggest that there is something more than just guessing. But generally speaking, it's some information that attorneys take into account. Often they don't do what the consultants tell them because they often think they know the jury pool; they know the ins and outs of the case better and the strategy that they're going to pursue. So it may have been any and all of those things that made [prosecuting attorney] Marcia Clark in particular think that the jury consultants were probably overcautious in putting black women in the jury.

I think, too, that there was a belief that the case was a tighter case than it turned out to be. No one really could have guessed how quickly some of the evidence was going to unravel based on mishandling and all sorts of irregularities. So there may have been the belief that it doesn't really matter who's on this jury, this case is so open and shut. So in that circumstance it's not surprising why race, gender, all those issues that then came into play weren't seen as being so significant at the beginning.

Why did middle-class black women lean toward O.J.?

I think there are a lot of reasons. Some of them have to do basically with what we know about the African American community in general, not necessarily distrusting the police, but not giving them trust either. And I think that was somewhat across the board for all African Americans, and maybe a lot of urban dwellers in Los Angeles.

I think second, if the idea was that the case was going to turn around certain images, namely that [it was] Nicole [Brown Simpson] being the angelic, lovely victim and O.J. being the savage bestial monster of a killer, that that kind of framework wasn't really going to work unless you could get a set of jurors who would identify with Nicole as the angelic victim. And for all sorts of reasons, that wasn't a narrative that was going to play well to a lot of different jurors, but particularly not to African American women jurors. They would see that as being a particular kind of race and gender card, if we want to use that language, that the prosecution was willing to play. …

Why did the domestic violence argument play so badly?

Even they had to be convinced to introduce the domestic violence evidence. Initially, no one really used that frame to talk about Nicole Simpson's murder. Even her sister was among the first to deny that Nicole was a domestic violence victim. That was a private family matter, and the prosecution pretty much shared that idea. In fact, the whole idea to move the case through a domestic violence lens had to be lobbied by other prosecutors in the office who camped out for days to get an opportunity to persuade the prosecution to use domestic violence. So it was an afterthought from the very beginning.

Then when they went in, they made promises. They used the whole metaphor of the long-ticking time bomb that eventually was going to explode, so they introduced it to kind of be the frame of the case. But they hadn't framed the actual laying out of the evidence in that way. Because of some ruling, some of the evidence that they promised to connect the fuse to the time bomb was never introduced, and by the time Christopher Darden, who was supposed to be the one who introduced a lot of this evidence, went to do so, he'd been so discredited by a lot of other things that had happened early that it's not surprising that that evidence fell flat.

So you had to be invested in it from the very beginning in order to make the best case possible, and I simply think that this was not the case here. They were not invested, they didn't make the best case of it, and there were some questions as to whether that frame was even going to be useful, even if they had done a good case of it. …

Carl Douglas

Carl Douglas, coordinating attorney for the defense team.

Carl Douglas

… Where did the prosecution go wrong?

I think it started out in jury selection. Prior to the case beginning, we had done focus groups, we had taken surveys, and we had learned that though it was counterintuitive, African American women were some of the strongest jurors for O.J.'s [defense]. The prosecution, and Marcia Clark in particular, had a history of dealing well with African American women. And I think she decided to reject the advice of her own consultants and to pick a jury from her gut. I remember specifically that we were shocked towards the end of jury selection to see that we were having our fourth and perhaps our ninth and maybe our 12th best juror, among a panel of several hundred, seated in the jury box towards the end of jury selection.

It was counterintuitive, I say, because O.J. really didn't have a strong connection then in the African American community. And there was the thought that he would be rejected by African American women, but the contrary really proved to be true. …

Donald Jones

Donald Jones, law professor at the University of Miami.

Donald Jones

… What were some of the problems for the prosecution?

Well, the prosecution never tied things together. Let's take for example the blood evidence. In order for the blood evidence to be powerful you have to account for the chain of custody. That wasn't done, and it wasn't done in ways that were obvious. For example, there was a guy named Thano Peratis who took some of the blood that was in question and one-eighth of a cc was missing. He never accounted for that. And when asked the first time he says he doesn't know what happened. Later, toward the end of the trial, the prosecution goes to him and in a deposition outside of the presence of defense, he comes up with a convenient explanation. But it doesn't really make sense. Why didn't he know about that before?

What's also interesting is the amount of blood that was found in O.J.'s car was about the size of the blood sample that was missing. None of this makes any sense. The prosecution did not present evidence in a way that was powerful, it presented evidence in such a way that it raised more questions than it answered. …

What was the prosecution's strategy for trying this case?

The prosecution pandered to the fears that the media had fanned. And they tried the trial based on the type of tabloid themes that had been developed by the media. They never left those themes. For example, the case really had nothing to do with domestic violence -- this was a murder trial. … And the prosecution tried to stick to these stories because they were playing to the audience. And if they had played to the court and to the evidence, it would have been a different case.

The prosecution's strategy of portraying O.J. as a "ticking time bomb" didn't affect the jurors?

Right. See there were two cases, and you can't try two cases, you can only try one case. And the domestic violence case had tremendous appeal as a spectacle, [but] it had no value as evidence. Thousands and thousands cases of domestic violence occur every year, but a very much smaller number of murders occur. You can't convict a person because they're a member in a group, that amounts to a profile. And they were attempting to profile O.J. Simpson with domestic violence cases that were sometimes 17 years old. …

Charles J. Ogletree Jr

Charles J. Ogletree Jr., Harvard law professor and director of Harvard's Houston Institute for Race & Justice.

Charles J. Ogletree Jr.

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… There are a lot of mistakes that the government made in this prosecution. I think -- and everyone is Monday morning quarterbacking -- but one of the interesting parts was just the way the case was presented. I'm not sure it made sense to put on the evidence of spousal abuse at the beginning when they had cold and calculated evidence of a crime. …

The second mistake, I think they were paying too much attention to the press as well, giving interviews, worried about their dress, worried about hairstyle, makeup, things like that, worried about images. And they were talking as much to the people in middle America when they had the microphone as they were to the 12 jurors who they needed to be convinced.

A [third] was that the scrutiny of their evidence -- all these flaws [in it] were known. How can you put on this DNA evidence when you know it's going to be seriously challenged by experts? How can you put on this forensic evidence when Dr. Henry Lee, the most noteworthy criminalist of his time, had grave doubts about it? How could you put on Mark Fuhrman as a credible, central eyewitness to critical details in the case -- critical details -- when you knew that he had many flaws in the way that he thought, his views about African Americans and his conduct in many years in law enforcement?

So it was a case where the government knew that they had flaws, but they had no choice. To the extent I'm critiquing them, I can't blame them. They had to try the case that they were given. They lost evidence because of the media. Witnesses were tainted; witnesses were compromised because they paid to do interviews. Family members were compromised because they gave interviews before the case went to trial. So the government was literally handcuffed in what they were not able to present and what they lost, and that's unfortunate. I don't know if it would have changed the outcome, but it would have let them put on a much more thorough case if things outside the courtroom had not compromised what went on inside the courtroom.

What are your thoughts on Christopher Darden and his position?

Chris Darden is a terrific prosecutor. I consider him a friend. Many people have been highly critical of him in this trial. He did what every prosecutor is supposed to do: Present your evidence to convict the person if you believe the person is guilty, and Chris Darden believed that.

It is unfortunate and regrettable that so many African Americans hated him for doing his job. That's just wrong. Just as Johnnie Cochran had an obligation to defend O.J. Simpson with every legal means available to him, Chris Darden had an obligation with every legal means available to him to convict him. He is not the bad guy in this case; he is a person who has an obligation to put on evidence and to convict. And he did his best.

And it's unfortunate that he will forever be tainted as the black man who tried to bring O.J. Simpson down as opposed to being defined as the public prosecutor who did his best to present his case in trial, to let the jury decide. He didn't have a vote; he wasn't trying to have a vote. So Chris Darden has taken unmitigated abuse for doing what the constitution requires: to throw hard but fair blows. He should be viewed as somebody who fought the good fight even though he didn't prevail. …

William Hodgman

William Hodgman, member of the prosecution team.

William Hodgman

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… What was the prosecution's strategy?

… An integral part was to first attempt to knock O.J. Simpson off that celebrated pedestal that we knew he enjoyed based upon his exploits as a college football player, as a professional football player, as a sportscaster, as an actor, if you will. We knew he enjoyed a very positive public image, and we wanted to commence the trial with evidence of the history of spousal abuse of Nicole Brown at the hands of O.J. Simpson.

And we hoped to establish a historical context. &helip; These were murders which occurred as part of a cycle of domestic violence, and it wasn't just a drop-from-the-sky episode. So we led with the domestic violence evidence and did not proceed to prove up the facts of the corpus of the crime -- that is, the murders of Ron [Goldman] and Nicole -- until we had established this history.

And after that, the effort went into proving up that the person who committed these horrible crimes, who slaughtered Nicole Brown, who slaughtered Ron Goldman, was in fact O.J. Simpson, and through the DNA evidence, the blood evidence, the fiber evidence, the hair evidence, the circumstantial evidence connecting all the crime scenes, that we felt it would paint a very compelling picture that it was indeed O.J. Simpson who committed these horrible crimes.

Why didn't it work?

Well, ultimately, as far as the domestic violence evidence, it appeared that it was a situation of what they call cognitive dissonance. It was just a refusal to either accept or to value that evidence of abuse, of Simpson beating Nicole and the evidence of O.J. Simpson being convicted by the Los Angeles City Attorney's Office of spousal abuse.

The other evidence that we presented we found in Nicole's safety deposit locker, where apparently she took Polaroid pictures of herself battered and left indication that O.J. did this to [her]. It was a very heartrending, poignant, sad train of evidence that led ultimately to her murder.

And yet it didn't impress the jury?

It did not impress the jury, and we knew that even midstream in trial, where after several jurors were excused for a variety of reasons, they were interviewed, and their reports became known in the press and in the media that they didn't understand why the prosecution spent all that time proving up the history of domestic violence. They felt it had nothing to do with the murder case. It had everything to do with the murder case, but the jury didn't get it. ...

Was the testimony of Detective Mark Fuhrman really necessary to the prosecution's case?

Mark Fuhrman ... was problematic. Interestingly enough, for all of his tortured history with the LAPD in terms of trying to obtain a stress disability from LAPD at one point and everything that went along with that, I personally feel that by the time he was a detective out at the West L.A. division of the LAPD, he was a good cop; he was a good detective. And from all the people I talked to, the people he worked with, the people he interacted with, he was a different man than he was earlier, when he apparently was trying to obtain a stress disability off the LAPD.

His detective work at the Bundy crime scene [location of Nicole's condo] in particular was good work while he was still on the case. Some of his other work, when he was up at Rockingham, O.J. Simpson's home, was very intuitive and very sharp. And he was the one who indeed found the bloody glove at Rockingham. He was the one that followed the information that [O.J. lodger] Kato Kaelin had provided the detectives who were there. And it was Mark Fuhrman who took the initiative to go look and see what might have led to the strange noises that Kato Kaelin heard. And in the course of that he found the glove which was saturated with the blood of Nicole Brown, Ron Goldman and Simpson himself.

But he perjured himself on the stand regarding his use of the "n" word.

Well, the blood evidence didn't evaporate. The blood evidence remained, and frankly, that was the core of the case. In Judge [Lance] Ito's mind, in the mind of most people who were experienced with the criminal justice system, the blood evidence told the tale. The blood evidence connected the Bundy scene with the Rockingham scene in the form of the Bronco; Nicole's blood, Ron's blood and O.J.'s blood [was] found in the Bronco as well. Objectively, that chain of evidence was very, very compelling to those who were open to it.

But he was racist. Did that have no bearing on your case, on your decision to use his testimony?

Again, that tapped back into the celebrity and race dynamic that was coursing through this case. Bob Shapiro told me one morning during the trial, he said: "You know, of all the people on LAPD, of the 7,000 blue suits who were available to have been at the Rockingham crime scene, it has to be Mark Fuhrman, the one with that history, who picks up the glove. The glove is a key piece of evidence, and it has to be Mark Fuhrman." That was a quirk of happenstance that is part of the case, but it certainly played into the strategy of the defense.

What would you have done differently if you could go back and retry this case?

Well, I think there are things that could have been done differently, stylistically, from even having a different array of lawyers and the like. But substantively, the case was pretty much there. I think I would have tried to compress the DNA evidence. It took us an intolerably long period of time to get the DNA evidence presented. Not all of that was our fault. We had [attorneys] Mr. [Barry] Scheck and [Peter] Neufeld on the other side, who adroitly prolonged the examination of that evidence.

In terms of other things, there was a myth associated with the case, if you will, that somehow Gil Garcetti moved the case from the Santa Monica Judicial District or the West Judicial District downtown, and that was not the case. At the time, all long-cause cases in Los Angeles County were being tried on the very floor, in the very courthouse, here in downtown L.A. where the O.J. Simpson case was tried. Many, many cases, from Pomona to Long Beach to the Valley and elsewhere, which had a time estimate of three weeks or more all were being sent downtown, and unfortunately, it was a lot of murder cases, because the long-cause courtrooms could process those cases, try those cases faster. It was something that had been a subject of some dispute between my office and the courts.

So then you had some choice in deciding where the case would be tried?

Well, we had a choice. We could have very well filed the case in Santa Monica. And if we could have done something differently to avoid all the grief that flowed thereafter, it would have been smarter for our office to have filed the case in Santa Monica. And then, if the court wanted to move the case downtown or the defense wanted to move the case downtown, they could have brought their motion, and it would have been granted or denied, appealed or not. But by practically filing the case where we knew it was going to end up, it has generated a lot of controversy, and again, I think some of that controversy has been unfair to some people.

Because it gave the impression that the district attorney was choosing a venue where it would be guaranteed many black jurors?

Yeah, I think some people felt that that was pandering to the black community by having it here. It had nothing to do with that at all really. It was the practical awareness that the case was going to be tried here, so let's not beat around the bush. Let's get the case cued up, and let's get it going. …

Shawn Chapman Holley

Shawn Chapman Holley, member of the Simpson defense team and managing partner at the Cochran Law Firm.

Shawn Chapman Holley

… What were the prosecution's mistakes?

The prosecution's mistakes? Well, gosh do we have enough time for an entire series? There were many. … The case began to break down from the very start. I think that the police went [to Rockingham, Simpson's estate], believing that O.J. Simpson did this, and it colored everything that they did from that point forward. They helped the evidence along. I don't think that they thought he was innocent, and that they were trying to frame him. I think they thought he was guilty, and they were trying to make their case a little more airtight. What they weren't counting on is the just thoroughness of this defense team, how hard working and what a team it was, [our] being able to find where they framed him and the mistakes that they made, which ultimately led to their undoing. …

The defense and the prosecution both hired jury consultants, focus groups, to test out their arguments before they went to court. What did they tell you?

The defense team had focus groups, and it's our understanding that the prosecution team had focus groups as well, where people from all ages, races, genders, come to sit and listen to some of … the evidence in the case and talk about some of the issues that were coming forth. It was obviously behind a mirror where they couldn't see us but we could see and hear them, and it was very, very clear that black women were the most sympathetic to O.J. Simpson. So it was very clear that we would want a jury made up primarily of African American women.

It's our understanding that the prosecution focus groups revealed the very same information so what that means for them is that African American women would not be good jurors for the prosecution. It's my understanding that they chose to ignore that data. Marcia Clark believed that she could relate to African American women, and that whatever they learned from the focus groups could be disregarded. That was yet another mistake made by the prosecution.

What was Clark relying on if not the focus groups?

I think she counted on somehow being able to relate to African American women. I'm not sure why. I don't think that the African American women on the jury and elsewhere related to Marcia Clark at all. … It was so clear that African American jurors, women jurors, would be helpful to the defense. …

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posted oct. 4, 2005

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