Outrage (44 page)

Although both sides in the Simpson case received the witness lists of the opposing side, and therefore the prosecutors knew Luper was scheduled to be a defense witness, he said no one from the DA’s office had interviewed him either. So here you have a moderately important witness in the “Trial of the Century,” and neither side had the vaguest idea what he was going to say. Luper told me he hadn’t even prepared a police report, which would have at least given the lawyers something to go on.

Briefly touching on the two other main lawyers (other than the two New York
DNA
lawyers) for the defense, Shapiro and Bailey, I have to say I was pleasantly surprised by Shapiro. He was better than I expected him to be. He certainly is no legal heavyweight by any stretch of the imagination, but he demonstrated that he knows his way around the courtroom, and he has good courtroom presence. Although he handled only a few witnesses on cross-examination, with those he did, he knew what he wanted to elicit from them, asked intelligent questions, and sat down.

But on witnesses
he
called to the stand, he was, if possible, even worse than Cochran. Shapiro called Dr. Robert Huizenga to the stand to establish that Simpson’s arthritic condition would have prevented him from committing these murders. Huizenga, at one time the team physician for the Los Angeles Raiders, examined Simpson, at Shapiro’s request, on June 15, 1994, three days after the murders. He testified that his examination revealed that Simpson had severe arthritis, and that although Simpson “
looked
like Tarzan,” in reality he was “like Tarzan’s grandfather.” But apparently Tarzan’s grandfather was in pretty good shape. The exercise video, shown to Huizenga on cross-examination, reflected that. And the witness Shapiro called to the stand for the express purpose of testifying to Simpson’s infirmities and physical inability to have committed the murders testified to just the opposite. On cross-examination by the prosecution, he conceded that Simpson definitely was physically capable of committing the murders of Ron and Nicole!

But even worse, because the
LAPD
detectives negligently failed to closely examine and photograph every injury to Simpson’s hands (the
LAPD
had this opportunity the day after the murders, which was before Huizenga examined him), during the prosecution’s case-in-chief they only told the jury that Simpson had two cuts, both to his left middle finger, the main one being a deep, fishhook-shaped cut about three-quarters of an inch long. Moreover, the police detectives had only taken a photograph of one of the two cuts, the main one. But not to worry. Shapiro, on direct examination of his
own
witness, Huizenga, brought out, for the first time in court, that Simpson had two additional cuts that law enforcement and the DA missed: a serious, jagged cut to Simpson’s left ring finger, and a tiny cut to the fourth finger of Simpson’s
right
hand. In addition, Shapiro, moonlighting for the prosecution, brought out that Simpson had
seven scrapes and bruises on his left hand
. And to make sure that he wasn’t fired by the DA’s office his first day on the job, Shapiro introduced excellent photos of all four cuts and seven abrasions. (As indicated previously, there was no mention of “blood” from these cuts, or when and how the cuts were sustained) I realize that for laypeople reading this, it has to be shocking. But for years I have been referring to criminal defense attorneys, even many high-priced ones in major, nationally publicized criminal cases, as “professional undertakers,” who come into court with their well-oiled and polished spades and literally bury their clients. I am not being facetious when I tell you that in many cases their clients would have been better off if their lawyers had just sat there at the counsel table and never opened their mouths. The chronicling of legal disasters and misadventures far worse than Shapiro’s handling of Huizenga can be found in the many books written about criminal cases.

F. Lee Bailey, of course, has for years, along with San Francisco lawyer Melvin Belli, been the most famous of America’s trial lawyers, and he and Edward Bennett Williams (now deceased) were considered by many to be the preeminent criminal defense attorneys in the land. Since his loss in the Hearst case, however, he hasn’t maintained the stature he once enjoyed, and the cowboy lawyer from Wyoming, Gerry Spence, is now considered the premier criminal defense attorney in the country. Incidentally, I don’t use the word “cowboy” in denigration. Spence
thinks
he’s a cowboy, coming into court with his Stetson hat and cowboy boots.

Bailey is highly intelligent and has enormous trial experience. He has also distinguished himself in several murder cases throughout the years. His forte, for certain, is cross-examination. As the saying goes, in a world of blind men, a one-eyed man is a king. And since the great bulk of trial lawyers have no instinct for cross-examination and have developed no skills in that area, Bailey is among the top cross-examiners among trial lawyers in the nation. My personal view is that if he didn’t shy away, as almost all experienced lawyers do, from the “why” question, he’d score more on cross. But I’m sure Bailey would have suggestions on how to improve my cross, also. The other problem I have with his cross is that he is often relentlessly sarcastic in tone and demeanor. I have no problem with being tough on cross-examination, but I feel it should be selective, intermittent—for instance, when you catch a witness in a lie or a discrepancy. But if you are continuously sarcastic, without letup, as Bailey is with too many witnesses, always implying by his tone of voice that the witness is lying or concealing information, I think it wears thin after a while with the jury.

If there is one thing that has hindered Lee’s courtroom performance throughout the years, it’s the very same weakness that the overwhelming majority of trial lawyers are guilty of—inadequate preparation. For one thing, by his own admission he hardly ever takes a note. But I’ve always subscribed to an old Chinese proverb that the palest ink is better than the best memory. I watched about a half hour of Bailey’s cross-examination of Sergeant David Rossi, the
LAPD
officer who was in charge of securing the murder scene, and in that short time it was obvious to me that he hadn’t interviewed Rossi (for which there is no excuse), he kept referring to the California Health and Safety Code as the California Penal Code, and, most embarrassing of all, he tried to establish that Rossi had violated police procedure by not calling for the coroner. When Rossi said that it wasn’t his job, that he was the watch commander, not the investigating officer, Bailey marched up to the witness stand with an
LAPD
manual which was supposed to prove it was Rossi’s job. But instead, the manual confirmed it wasn’t. It was the job of the investigating officer. Hadn’t Bailey even bothered to read that part of the manual?

A good example of the inaccuracy of the puffed-up reputation of lawyers is Bailey’s cross-examination of Fuhrman. As I’ve indicated, Bailey is often referred to as one of the very best cross-examiners in the legal profession, which consists of 840,000 lawyers in the United States. Fuhrman, on the other hand, was depicted by the defense as a terrible liar. Since the main purpose of cross-examination is to expose untruthfulness and destroy credibility, it appeared to be a match made in heaven. In fact, Bailey was dry-washing his hands waiting to cross-examine Fuhrman, and unwisely created high expectations for himself by predicting to the media that he would destroy Fuhrman. But it was the consensus of virtually everyone that he never laid a glove on Fuhrman, if you’ll pardon the expression. (And, as I pointed out earlier, Bailey didn’t even do the most fundamental and important thing to prepare for effective cross-examination—interview the witness, in this case, Fuhrman.) If the supposedly best cross-examiner in town couldn’t touch a terrible liar, what does that tell you about the nonsense that never ceases to come from the media? Yet, we can count on those who cover criminal trials and write about lawyers to continue to write in the future about witnesses who are expected to face “withering” cross-examination from some lawyer who has no ability at all to cross-examine. Why is the cross-examination described as “rigorous” or “withering”? Because cross-examination is
supposed
to be rigorous and withering.

In all fairness to Bailey, one of the main reasons he was unable to hurt Fuhrman is that Fuhrman was not, in fact, a liar. Other than his denial of using a racial slur, he was telling the truth. But a superb cross-examiner can usually make even a truthful person appear to be lying.

In Bailey’s cross-examination of Fuhrman, Bailey did lay the foundation for impeaching Fuhrman’s credibility by asking him if he had used the word “nigger” in the past ten years. At the time of his cross-examination, the Fuhrman tapes hadn’t yet surfaced, but the defense already had statements from two witnesses (each furnished to the prosecution by way of discovery) who were prepared to testify that Fuhrman had in fact used the word “nigger” in the past ten years. Armed with this information, a two-year-old would ask Fuhrman, as Bailey did, if he had ever used the word, so that his expected denial could be impeached when the defense presented its case. Yet when the Fuhrman tapes later surfaced (tapes whose existence Bailey could not have imagined existed at the time of his cross-examination of Fuhrman), furnishing incontrovertible evidence of Fuhrman’s lie, suddenly, Bailey’s earlier cross-examination of Fuhrman became superb. Legal analysts and experts covering the trial gushed that Bailey’s earlier, simple cross-examination on Fuhrman’s use of the word “nigger” was “brilliant” and “was the cap” to a great career in the law.

As with Cochran, I’m very disappointed in Bailey, whom I have known, though not well, for years. I felt embarrassed
for
him, and outraged
at
him for eagerly embracing and becoming an outspoken propagator of the police frame-up theory, which he took to new and absurd heights. I actually heard him say on television during the trial that if the
LAPD
and DA’s office found the true killer of Ron and Nicole, they wouldn’t even tell the defense and would continue to prosecute Simpson. That remark was worse than inexcusable; it was beneath contempt.

Throughout all the demonstrated mediocrity and often incompetence of the main lawyers for the defense, they were still invariably referred to as the Dream Team by the media. Not only didn’t their prior records and backgrounds as criminal defense attorneys (which were sorry at best except for Bailey’s) prevent the media from saying they were the best that money could buy, but their mediocre performance at the trial didn’t affect the media’s view of them one iota. But if one’s prior record and one’s current performance aren’t the basis for evaluating someone, what is? What they
might
do in the future? None of this mattered to the media. Being a criminal defense attorney on a big publicity case was enough for them. They knew a Dream Team when they saw one.

“God, where are you?”

When tragedies like the murders of Nicole and Ron occur, they get one to thinking about the notion of God. Nicole was only thirty-five, Ron just twenty-five, both outgoing, friendly, well-liked young people who had a zest for life. Their lives were brutally extinguished by a cold-blooded murderer. How does God, if there is a God, permit such a horrendous and terrible act to occur, along with the countless other unspeakable atrocities committed by man against his fellow man throughout history? And how could God—all-good and all-just, according to Christian theology—permit the person who murdered Ron and Nicole to go free, holding up a Bible in his hand at that? When Judge Ito’s clerk, Deidre Robertson, read the jury’s not-guilty verdict, Nicole’s mother whispered, “God, where are you?”

I said earlier “if there is a God” because although there are good arguments for the existence of God (e.g., the cosmological one, that is, the first-cause theory; or the teleological, which takes as its starting point the observed order in the universe), in my own little mind, I, for one, can’t be sure at all there’s a God.

The previously mentioned
Playboy
magazine interview ended with the question of whether I believed in God. I answered: “If we were in court I’d object on the ground that the question assumes a fact not in evidence.” When the interviewer then asked, “So you don’t believe in God,” I responded, “I’m not in a position to believe or disbelieve in him. You know, the atheists, who not only believe but know there is no God, are just as silly as those who seem to have no doubt that there is. Over the centuries, thousands of tomes and trillions of words have been written on the subject, yet neither side can come up with one single fact to support its position. But in this realm, where people’s minds have been on permanent sabbatical, that fact is apparently immaterial.”

“Are we getting into metaphysics if we ask you what a fact is?” the interviewer asked.

“I don’t think so. By fact I mean a truth known by actual experience or observation. And something that cannot be logically explained in any other way.”

“So what’s your bottom line?”

“I like Clarence Darrow’s observation about the existence vis-à-vis non-existence of God: I do not pretend to know what ignorant men are sure of.”

I was surprised by the number of letters I received from people expressing surprise I didn’t believe in God, apparently missing the point I thought I had clearly made that I don’t disbelieve in him either. I’m an agnostic, and have been since the day in my early twenties when I said to myself that if there was a heaven and if I ever went there, I wanted to take my reason with me; that there was no earthly justification to
unthinkingly
buy into the myth of a God and of heaven and hell. In other words, although I’m actually from a little town in northern Minnesota, Hibbing, I’m from Missouri on the God issue.

Not only is there a question in my mind about whether there’s a God, but perhaps more important, what type of fellow is he? We certainly know he’s shy, keeping his whereabouts and form, if he has one, known only to himself. I realize that there are many people who claim to have actual conversations with God, but the question I’ve always had for these people is what voices are talking to them when the Lord isn’t on the line?