The Search for Justice (54 page)

Shortly after this, Johnnie Cochran began to show up at the courthouse accompanied by young black men from the Nation of Islam,
Reverend Louis Farrakhan ’s organization. They were his bodyguards, he said in response to my protests. I couldn ’t have been
more dismayed. I didn ’t want them anywhere near this case or my client. Their presence sent the wrong message.

Early on in our investigation, we had learned that there was a concentration of a chemical called EDTA found in some of the
blood evidence from Bundy and the sock found at Rockingham. EDTA is a preservative used in reference samples of blood; that
is, samples of blood taken from individuals to be used later for comparison with samples from the crime scene. As was customary,
O.J. ’s blood reference sample in the lab had been treated with EDTA. If traces of EDTA were found in the blood evidence,
that blood had either been confused with or planted as real evidence.

Here the hubris of the prosecution surfaced in an ironic fashion. Their attorney Rock Harmon was so sure that there was no
EDTA in this blood evidence that he issued a challenge. “If they ’re so interested, let ’s send this blood to the lab,” he
said. “If EDTA is found on these items, then this is a case that shouldn ’t be prosecuted, and we ’ll dismiss it. If there
’s no EDTA present, then we ’ll know we ’re right, and the defendant should change his plea to guilty.”

Samples were sent to the FBI lab; the reports came back positive for EDTA. The prosecution then tried to backtrack, arguing
that EDTA is a naturally occurring substance present in everyone ’s blood, preserved or not. We countered with testimony that
the amount of EDTA found on the sock and the back gate exceeded the amount one would normally expect to find. We wanted the
jury to hear our basic question: Why was a blood preservative found where it seemed questionable?

Our witness Frederic Rieders, a forensic toxicologist, acknowledged that his review confirmed the existence of EDTA preservative
in the sock and on the back gate at Bundy. In answer to a challenge from Marcia Clark, he said, “If you hear hoofbeats, it
’s more likely to be horses, not zebras. So it ’s most likely that the source for EDTA in a blood sample is that it was EDTA
blood to begin with.”

Due to a scheduling conflict, Marcia Clark couldn ’t continue her cross until a few days later. When she got Rieders back
on the stand, she ’d had some time to do further background checking
and proceeded to relentlessly attack the witness on errors he ’d made in another case seven years prior to the O.J. trial.

Ito grew very short-tempered with her line of questioning. “Let ’s wind this up,” he snapped. “Let ’s try the Simpson case
sometime today. In fact, that ’s it for this witness, we ’re through.”

I suspect the whole discussion, like much of the blood wars, was beyond anyone ’s comprehension, including the jury and many
of the lawyers. But the general effect was to undermine the jury ’s perception of police procedure.

In the middle of July, we informed Judge Ito of the existence and substance of Laura Hart McKinney ’s taped interviews with
Mark Fuhrman. Based on the brief excerpts we ’d heard and the information we ’d given him, the judge agreed that they were
material to the case and immediately issued a subpoena for their return to his jurisdiction.

At the end of July, Johnnie Cochran went to North Carolina armed with the subpoena. There a local judge blocked our attempt
to get McKinney ’s Fuhrman tapes, ruling that the tapes were only collateral, not material, to the question of O.J. ’s guilt,
and therefore the defense had no right to them.

It was a major setback for us. Shocked and frustrated by the ruling, Cochran announced our intention to appeal. At this point
the news was out. From one end of the country to the other we heard the question: What is on those tapes?

On August 7, the North Carolina appellate court overruled the lower court and ordered that the McKinney tapes be turned over
to us.

The prosecution team was now fully aware of the tapes, and what they reportedly contained. Now that we had obtained them through
our own efforts, our money, and our fight with the North Carolina court system, Marcia Clark decided that they belonged to
her. None of us among the defense team had heard the tapes in their entirety, and the prosecution hadn ’t
heard them at all. And who “owned” them wouldn ’t keep them from being evidence in the case; they would have to be shared
with the other side in discovery. So her move to claim them for the prosecution was, as far as I was concerned, an ineffective
power play.

To complicate matters further, Judge Ito himself was indirectly involved in the contents of the tapes. They contained material
pertinent to Captain Margaret York, Ito ’s wife, involving confrontations Fuhrman had had with her. If this was true, it would
contradict Captain York ’s earlier statements that she ’d had no dealings with Fuhrman—and that therefore there had been no
need for Ito to remove himself from the case. Thus we faced yet another ironic encounter with the prosecution. The tapes that
were our salvation were quite possibly also the potential source of a mistrial.

I
was looking forward to presenting Michael Baden ’s testimony on behalf of the defense. “There are great limitations on what
medical examiners can do in our reconstructions,” he had said when he agreed to testify. “We can ’t, for example, go to an
arson scene, examine the ashes of the deceased, and tell if that person had a mustache.” But there was solid information to
be obtained, provided that you didn ’t have to contend with such factors as incomplete investigations, an incompetent laboratory
staff, and a ten-hour delay while you waited for the coroner to arrive at the crime scene. By the same token, there are 1400
homicides in Los Angeles County each year, and no one had questioned the collection of blood evidence in the microscopic way
that we had in this case.

In August, Michael Baden testified that when he was at the L.A.P.D. crime lab two days after the murders and examined the
socks that were removed from O.J. ’s home, neither he nor Dr. Wolf nor the L.A.P.D. lab ’s Michelle Kestler had seen blood
on them.

Dr. Baden ’s testimony was intended primarily to show that testimony delivered by the prosecutor ’s medical examiner went
far beyond what can be learned from an autopsy examination. This was expecially true in the case of Dr. Lakshmanan, who
had substituted as a witness for Dr. Golden, the original coroner. For instance, when Dr. Lakshmanan described the attack
on Ron Goldman as having been committed from behind, by a single assailant who was right-handed, of athletic build, with a
height and weight similar to O.J. ’s, he was over-reaching what he had any ability to know with a reasonable degree of certainty.

Baden also challenged the prosecution ’s contention that the attack on the two victims could ’ve been accomplished within
one or two minutes. There had been a protracted struggle, as evidenced by Ron Goldman ’s hugely swollen right hand, which
led Dr. Baden to believe he ’d hit his attacker quite hard, probably inflicting considerable damage. He explained that Goldman
had died as the result of slow seeping of blood from veins in the neck, and that it would have taken at least five or ten
minutes of blood loss in this manner for death to occur. He knew this, he said, because the wounds in the lungs had produced
very little bleeding.

On Kelberg ’s cross, he asked Dr. Baden what explanation O.J. had given for the cuts on his fingers when Baden first examined
him at the Kardashian residence on June 17, 1994. Baden explained that Simpson had told him he first cut himself while searching
for his cell phone in the Bronco in the dark on the night of June 12, and then cut himself more deeply on the broken glass
in the Chicago hotel room, thus resolving prosecution allegations of alleged inconsistent statements by the defense about
the cut fingers.

Although Baden could not say with a reasonable degree of medical certainty how many killers there were, his opinion was that
one person could not have murdered both Nicole and Ron without incurring significant injuries, as well as being drenched by
a tremendous amount of the victims ’ blood. As we reminded the jury, our immediate physical examination of O.J. the day after
the crimes, and the photographs taken at that examination, reflected no injuries from such a struggle.

In mid-August, the battle in Judge Ito ’s chambers over who “owned” the Fuhrman tapes threatened to overshadow whatever trial
proceedings were going on in the courtroom on any given day. Once the tapes arrived at Judge Ito ’s office, he decided that
by rights they belonged to the defense. In a meeting with both sides, he gave them to Johnnie Cochran.

At one point Marcia Clark said heatedly, “We will object to the playing of these tapes!” Barry Scheck shot back at her, “How
can you object without even hearing them?” Marcia looked directly at him and snapped, “Shut up, Scheck.”

Scheck turned red with anger, and something seemed to snap. Thereafter he was much less tolerant of Marcia ’s behavior. As
a man of real moral principles, Scheck was appalled that the prosecutor was determined to protect her witness even if it could
be proved he had perjured himself.

In the portions of the tapes we ’d heard, Fuhrman was an equal-opportunity bigot, expressing the same poisonous hostility
toward blacks, Hispanics, and women—including his former superior, Captain Margaret York. As the defense feared might happen,
Marcia Clark cited a conflict of interest on Judge Ito ’s part and quickly moved to request that the judge recuse himself
from the trial.

It was clear that the prosecution had lost any desire to be fair about either evidence or this judge. It was bad enough that
they had refused to call the coroner, Irwin Golden, to the stand because he had clearly bungled the autopsy. Now they were
fuming because the judge was losing patience with their antics. There was an air of desperation in the prosecution ’s actions.
Henry Lee had informed us that they were frantically shopping around the country for additional experts to try and rebut defense
evidence. Now in Fuhrman ’s tapes they were faced with a potent weapon that would destroy a witness they had made the center
of their case. They had been warned about Fuhrman and chosen to ignore those warnings. If this judge didn ’t go along with
squelching the tapes, the prosecution would simply try to replace him with a judge who would.