Outrage (37 page)

“Apparently Mr. Cochran and Mr. Scheck, in their frantic scurrying around during their final summations to plug up all the holes through which Mr. Simpson’s guilt has been gushing, arguing contamination here, planting here, cover-up here, forgot to claim in their summation that the five blood drops of Mr. Simpson’s found at the murder scene, the most incriminating evidence against Mr. Simpson in this case, were planted.

“As you know, with one of the blood drops, there is only a one out of 170 million chance that it belongs to someone other than Mr. Simpson, and with each of three others, only a one out of 240,000 chance. With the fifth, one out of 5,200. So we know, we don’t just believe, that Mr. Simpson left his blood at the murder scene. Yet Mr. Cochran, in his summation, never even dealt with the issue, and as you recall, Mr. Scheck merely said that those blood drops had been cross-contaminated. But maybe they didn’t forget to claim the blood drops were planted. Maybe even they realized it would be too preposterous for anyone to believe that the police planted drops of Simpson’s blood just to the left of the killer’s bloody shoe prints walking away from the murder scene.

“Let’s talk about Mr. Scheck’s cross-contamination argument. He claims the five Bundy blood drops had been cross-contaminated with blood drawn from Mr. Simpson’s arm, and claims further that the blood drops had become so degraded by the elements that no
DNA
was left in them. So therefore, he says, when the cross-contamination took place at the police laboratory, only Simpson’s blood from his vial showed up on the
DNA
tests of those blood drops.

“But quite apart from the fact that the defense presented not a speck of evidence that any of the Bundy blood drops had been cross-contaminated—they only talked about possibilities—there are two realities that conclusively disprove Mr. Scheck’s argument.

“Number one, if, in fact, the reference blood from Mr. Simpson’s vial, because of mishandling by the technicians and chemists at the
LAPD
lab, had somehow gotten on the five blood drops which were removed from the crime scene by cotton swatches, those blood drops would then have had the preservative
EDTA
in them, since
EDTA
, we learned at this trial, is added to all blood drawn from the arms of suspects. And although the defense has claimed there was
EDTA
present in Mr. Simpson’s blood found on the back gate and in Nicole’s blood on one of the socks, they’ve never even alleged that any
EDTA
at all was found on the Bundy blood drops. So we know that there was no cross-contamination here for that reason alone.

“Secondly, although the Bundy blood drops had been exposed to the elements and therefore were degraded, if they had been cross-contaminated with Mr. Simpson’s reference blood, which had not been exposed to the elements, a much higher concentration of
DNA
would have shown up on the drops. But we know that’s not the case. We know that on four out of the five drops, the
DNA
had been degraded to the point where only small amounts of
DNA
remained, and this is why only a
PCR
test could be conducted on them. Even the fifth blood drop, which was sufficiently rich in
DNA
for an
RFLP
test, had been degraded by the elements. So this is the second reason we absolutely know there could not have been cross-contamination here.

Since we know that the
DNA
in the five blood drops at the murder scene—which have been identified by
DNA
tests as having come from Mr. Simpson’s blood—
did not come from Simpson’s reference vial,
we therefore know, conclusively, that they could only have come from his body as he was leaving the murder scene, most likely from the deep cut to the knuckle of his left middle finger.”

The prosecutors did not make either of these two obvious arguments. After making them, they could have told the jury that since the defense never even claimed the Bundy blood drops had been planted, and since we know that no cross-contamination took place because the blood drops had no
EDTA
in them, and the level of the
DNA
was very low, that only left one catchall argument for the defense to make—its pet argument that all the blood which wasn’t planted had been contaminated by bacteria, dirt, leaves, etc., making all the
DNA
test results on them “unreliable.”

But after pointing out to the jury once again that the statistical improbability, per the testimony of the forensic scientists at the trial, of one out of the five blood drops at the Bundy murder scene not belonging to Simpson was 1 out of 5,200, of three others 1 out of 240,000, and of the fifth, the only one on which an
RFLP
test was conducted, 1 out of 170 million, and that the statistical improbability of
all five
blood drops belonging to someone other than Simpson would produce numbers that would run off the edge of any paper, don’t you automatically go on and point out to the jury that the whole issue of contamination only has relevance if the blood at the murder scene belonged to some other party, some third party?

If it belonged to Simpson, what difference does it make if it became contaminated? That is, if it was Simpson’s at the beginning, and the tests showed it was still Simpson’s even after the contamination, what difference does it make if there was contamination? So don’t you argue to the jury, as Clark and Darden never did, something like the following?

“To believe this ridiculous contamination theory that the defense has worked so hard to get you folks to buy during this trial, we’d have to believe that this blood at the murder scene which has been identified as Mr. Simpson’s actually belongs to X, the true killer. During the trial, X, the true killer, has been somewhere else, maybe in some motel room in San Antonio, or Topeka, or maybe Boise, Idaho, watching these proceedings on television. And because of contamination caused by dirt, bacteria, or what-have-you, out of the five and a half billion people on the face of this globe, X’s blood was miraculously transformed into Simpson’s blood. And not just once. Because of contamination, apparently all five separate blood drops of X’s at the murder scene were each magically transformed into Simpson’s blood. That’s insane, of course, on its face, ladies and gentlemen, too ridiculous to even contemplate or talk about. And yet when you separate the wheat from the chaff, that’s precisely what the defense in this case is trying to get you folks to believe. Aren’t you folks insulted by this? I mean, how much respect for your intelligence can these defense attorneys possibly have to ask you to believe something like this?”

Don’t you make this kind of an argument to expose the absurdity of the defense’s contention with respect to contamination? But neither Marcia Clark nor Christopher Darden, in either of their two arguments to the jury, made any such obvious argument or even one remotely similar to it.

T
he opening arguments of both prosecutors, though far from first-rate, were in fact much better than their closing arguments, or rebuttal, the most important address to the jury a prosecutor makes during a trial. The prosecutor’s rebuttal, like his opening argument, should be prepared before the first witness has been called at the trial. Yet it was very clear that not only didn’t Clark and Darden do this, they did what the overwhelming majority of prosecutors do—they started thinking about
most
of what they were going to say while defense counsel were making their arguments.

I’m always perplexed when I see prosecutors writing furiously as defense counsel is making his summation. A prosecutor shouldn’t have to do that. It’s
his
case. He knows the weaknesses in his case better than anyone else, so he should anticipate what the defense attorney is going to say before he even says it, and have already prepared his response. Not just what he’s going to say, but the sequence, and how he’s going to say it. In other words, the prosecutor has to make the assumption that defense counsel, as incompetent as he may be, is at least going to see and argue, however poorly, the main weaknesses in the prosecution’s case. The dilemma arises when defense counsel doesn’t see one or more of these weaknesses in the prosecution’s case, particularly the more subtle ones. As a general but not ironclad rule I find a way in rebuttal to raise and discuss these issues myself. Why? Because a jury consists of people with hundreds of years of collective human experience, and even though defense counsel never spotted a particular weakness, chances are at least one of the jurors will have. And if just one juror sees it, all twelve learn about it as soon as he brings it up during deliberations. And if the jury is talking about a weakness in my case back in the jury room, I want to have been heard on that issue.

Obviously, the prosecutor’s final address to the jury will have to be amended (by additions, deletions, etc.) as the trial proceeds, since you cannot have a 100 percent handle on the case before the opening bell. But you can have a draft which you work on, amend, and fine-tune nearly every day of the trial.

It’s hard to believe that Clark and Darden, two of the top prosecutors in the largest prosecutor’s office in the land, and trying the most publicized murder case in U.S. history, would be so incredibly incompetent as to wait until the last second to prepare their rebuttal, but that’s precisely what it appears they did. I didn’t need
Time
magazine to tell me, but in its October 16, 1995, edition, it reported that Darden was up till 4:30 a.m. on the night before he gave his rebuttal argument, preparing it. (In all fairness to Darden, there were unconfirmed rumors that whoever was calling the shots for the DA’s case asked Darden, at the last second, to argue in rebuttal.) When I told a source of mine on the prosecution team that after watching Clark give her rebuttal argument, I had little doubt that she did not put more than fifteen to twenty hours, if that, into preparing it, he replied, “She didn’t.”

This is not boasting, but if I had been on the Simpson case, since I would’ve had well over a year to work on my rebuttal, I would have put literally hundreds of hours into it, and gone over it a minimum of eight or nine times.

How do I know, even without asking anyone, that Darden and Clark put hardly any time at all into the preparation of their arguments? For one thing, both of their arguments were rambling and disjointed, clearly reflecting a lack of preparation. Also, Darden’s argument was very weak and short, and Clark’s summation was not only weak and relatively short, but there was an unmistakable telltale sign. She was continually admitting to the jury she didn’t know or wasn’t sure of something, or didn’t have something she needed.

One of the two out-of-town
DNA
prosecutors on the Simpson case told me something that made me angry. He confirmed what I had already inferred. Incredibly, he and his colleague, he said, worked with Marcia Clark on the
DNA
part of her rebuttal for close to four hours down at the district attorney’s office on the evening before she gave her final argument, and the session didn’t end until 2:30 in the morning, just a few hours before Clark had to stand up and address the jury. Driving back to his hotel room after the session, the prosecutor, who likes and respects Clark, said he nevertheless wondered “why Marcia had waited all this time to have this session with us, the first in-depth meeting she had ever had with us. We went over things she could have discussed with us months earlier.”

With the weight of the prosecution on this final address of yours to the jury urging a guilty verdict, how could you possibly, Ms. Clark, show so little dedication to your job—which was representing the People of the State of California in a brutal double murder case—that you put off the preparation of your rebuttal until the last moment, cramming like a high school kid before an exam? And if, in fact, you were aware of the tremendous responsibility you have as a lawyer for the people to bring about justice, and you didn’t prepare most of your rebuttal much earlier simply because you had no idea that it should be prepared way in advance and gone over, again and again, then shame on the district attorney’s office for not having any prosecutors who know how to prosecute a big case effectively and successfully. And if there are such prosecutors in the office, then shame on the DA for being so incompetent he had no idea who they are.

Marcia Clark’s inexcusable lack of preparation for her closing argument, something a prosecutor shouldn’t be guilty of even in his first or second jury trial, was reflected in many ways, including statements like the following, which are sprinkled throughout her closing argument (rebuttal): “Vannatter and Lange came out to Bundy,
and I guess
they showed up around 4:00, 4:30,
I think it was
.” (You
guess
? You
think
? You’ve been on the Simpson case for over a year and you don’t
know
? And if you didn’t know, you didn’t even bother to check the transcript?) “They still didn’t run out to Rockingham, okay?
I can’t remember, I think
he said it was around the time…” “Even then they didn’t go immediately. It wasn’t—I
think
about 5 o’clock when they finally went to Rockingham.” “And that instruction is
2?—2.80? Do you have it on the bench, Your Honor? Wait. I have it. Thank you
.” After a break, “
I forget where I left off
, so I’m just going to pick up with something else.” “
I can’t remember exactly
. You can have it read back because
I think
what he said was 10:23.” “There was some testimony,
I think
, from Dr. Baden that…” Turning away from the jury, “It’s in evidence,
isn’t it
, Your Honor, the blood search sheet, work sheet? Yes, it is. Good. Good. You’ll [jury] be able to see it.” “At the end of the trial, or the end of the people’s case, or maybe it was the end of the whole trial…” “The testimony from Mr. MacDonnell
and from Dr. Lee—I believe—but certainly from Mr. MacDonnell
…” And so on.