The People V. . . . Episode Nine

In a recent TV interview, Alan Dershowitz was asked about the TV series, "The People V. O. J. Simpson."  He said it was an interesting fictionalization.  

We saw that in the interactions between Chris Darden and Marcia Clark which the writers made out as very close to being a romantic relationship.  There is nothing I remember in my reading that they ever apologized to each other as the series writers suggest.  Over the last few days, I've read portions of Detective Fuhrman's, Fred Goldman's, Lawrence Schiller's, and Jeffrey Toobin's books about the Fuhrman testimony.  All of the books made Darden out to be very hard-nosed and aggressive, not at all the gentle giant of a man shown in the series.  And Clark never softened beyond changing her clothes and hairstyle during the trial.  

The series writers may have made up a lot of stuff but they did make points on behalf of women's rights, especially how much they are hounded if they are accomplished and successful.  They have also been clear that African Americans have been and still are victimized by the criminal justice system.

The writers made sure to have Clark say that bringing in Fuhrman for further testimony would so enflame the jury that they would ignore the evidence in order to punish the LAPD.  Toobin wrote in his book that OJ was the "undeserved beneficiary" of the the jury's attitude toward the police.  

But the writers got it right when they did the court scene with Fuhrman.  They had the wrong defense lawyer question him but the truth is that Fuhrman took the Fifth Amendment and looked guilty of all kinds of evidence planting and violence against the African American community.

A few years before the trial, a screen writer from North Carolina had a chance encounter with Fuhrman and thought she found an experienced cop who could give her background for her writing police drama for TV.  She recorded and had transcribed their extensive conversations.  Not only did Fuhrman use the "N" word forty two times, he described in detail numerous events where police tactics used unprovoked violence toward Black people and tampered extensively with evidence to get convictions.  Copies of the tapes and transcripts were gone over carefully by both prosecution and defense and by the time Fuhrman came into the court room, no one wanted to look at him.  Even the crowd in the court room had heard snippets of the tapes over radio and TV the previous few days,  The only one who really watched Fuhrman enter and sit down was Fred Goldman, Ron's father, who was furious that it was now Fuhrman on trial rather than OJ.

Fuhrman wrote in his book MURDER IN BRENTWOOD that he was ready to explain everything because he felt completely innocent of any tampering with evidence and that his taped conversations had been pure fiction.  But on advice of his new lawyer (his old one quit when the tapes were released) and because he knew no one on the prosecution would be willing to be his advocate, he wrote that he had to take the Fifth.  Clark did turn her back on him as he came in and Darden left the courtroom, just as the series showed.  Poor Fuhrman . . . not!

Anyone who knew the actual content of the tapes knew he was bad.  Schilling reported that the writer who had made the tapes was called to the stand and said she was convinced during her interviews with him that he was talking about how he operated as a cop.

In the show, I noticed that there was no jury when Fuhrman testified.  The books all confirmed they were not there to see him take the Fifth.  Though it was not shown in this episode,  Judge Ito brought them in for the writer's testimony and she confirmed it was Fuhrman's voice on the two brief segments (total of fourteen words) that were allowed to be presented.  When asked, she said Fuhrman had been totally serious and scary when he described treatment of African Americans and when he used the "N" word.  The series writers indicated that the jurors found out about all the stuff outside of the courtroom during conjugal visits with spouses during "pillow talk."  

Goldman did a news conference immediately after that session blasting the judge for allowing the trial to turn into the "people v. Fuhrman."  In his book, Goldman never used OJ's name, but referred to him as the killer, murderer, and such terms.  There is more to know about Goldman and I may do a post on him.

You may ask why Fuhrman didn't say "No" when asked specifically about evidence tampering.  Another arcane rule of law is that once he started claiming the Fifth, if he answered anything but that way, he could be subjected to extensive questioning and lose his Fifth Amendment right.  Fuhrman later pleaded "no contest" to the felony charge of perjury in OJ's trial.  The LAPD found insufficient evidence to try him for the incidents he described for the screen writer.  Fuhrman was thus a convicted felon, could no longer be a policeman, and even lost his right to a gun,  Meanwhile he has done well as a mystery writer living in Idaho and being a guest expert on FOX.

Was anything entered into evidence in this episode that the jury could have used?

The opening scene has a person of foreign extraction testifying to hearing someone yell "Hey, Hey, Hey" from the crime scene.  But no time is given.  And Clark says he saw a Bronco by the alley gate to Bundy.  What wasn't shown was that the witness went on to say he saw four men running from the scene and driving the white SUV south rather than north toward Rockingham.  

The testimony was abridged by the series writers in order to focus on another point about racism.  The man said someone responded and sounded like he was Black.  Cochran jumped all over that presumption and said there was no way to take that seriously because no one can tell such a thing for sure.  

Cochran saw the case as OJ v. American racism.  But "Americans" do not realize just how racist we are and so the show leaves the impression Cochran was using a tactic rather than showing the truth.  And as Fuhrman came into focus in this episode, his racism was used as the best example of Cochran's tactic to hijack the case and put the LAPD on trial.

The writers and Toobin have set up the jury to be so angry about Fuhrman that they can't think straight and deal with the evidence.  Or was Cochran correct when he said earlier in the series that they would be mature enough to look past the epithets directed toward Blacks and be able to keep their poise.  We'll see next week if the jury is given that credit.    

The People V. . . . The Glove Demonstration

Let me begin by offering a disclaimer and an observation on memory.

My disclaimer is that I read the books about OJ's case ten years ago.  While I have scanned most of and read a little of KILLING TIME since watching the AMERICAN CRIME STORY series, I have largely gone on the basis of memory and lack thereof in my preparing this blog.  I have already stated that my focus was on evidence and timelines in order to sort out this particular crime and paid little attention to the dynamics that have largely occupied the writers of this series.  The writers have played up or even made up elements for the story to make it more interesting.  But I have usually had no recollection about just how far the writers wandered from what actually happened in and around the trial.

My observation on memory is that I discovered in reviewing the details that my memory has been a little off.  I used to think there were four different knife shapes involved in the autopsies.  But in studying them for the blog a couple weeks ago, I saw there were only three different shaped blades identified by Dr. Golden.  I must then point out that this kind of slight discrepancy happens all the time, and not just with me.  The two main books covering the narrative of the whole event, Jeffery Toobin's THE RUN OF HIS LIFE and Lawrence Schiller's AMERICAN TRAGEDY that I now have in my personal library are second editions and are actually different than the first editions I read ten years ago.  So details that may not have been in the earlier editions have slipped into the second.  Which details differ is hard to know because I do not have either first edition available as I write this.  Let me just say that because memories change over time for a wide range of reasons, we run into some questions that are hard to clear up.

I bring up the disclaimer and observation because the trailer for Episode Eight indicated there would be a lot about the "jury rebellion" that occurred not long after the glove demonstration.  I remembered so little about that I decided to read Toobin's take on the jury's behavior and how suddenly several members were removed.  I happened upon his telling of the glove demonstration.  He seemed to be remembering things I did not recall seeing in his first edition, mainly about the latex gloves OJ wore when he put on the bloody gloves in the court room.

In the second edition, he said he saw that the latex gloves themselves were not all the way on and that OJ ignored Chris Darden's request that he straighten his fingers in order to get the gloves on properly.

There are two reasons I think that Toobin may have unintentionally enhanced his memory.  One, Schiller made no such claims about the demonstration even though he, like Toobin, went from being impartial in the first edition of his book to believing OJ was guilty in the second edition.  Two, in Episodes Seven and Eight both Marcia Clark and DA Gil Garcetti responded to the demonstration that it was obvious to them the gloves did not fit.

Let me give a little more information on the gloves, based on the testimony of the executive of the glove company that made them.  The gloves were designed to fit snuggly and smoothly over the hands.  For OJ's purposes, such a glove was perfect for holding a microphone on the sidelines during TV broadcasts of football games on cold days.  

According to Toobin, all of the defense lawyers checked the gloves and tried them on one day and were convinced that they were too small to fit OJ.  They knew his hand size because when they left their visits with OJ, some put their hands on the glass window of the visitor's booth (all the visits were not in a spare room where they could be face to face) and OJ would put his hand up against theirs from the other side of the security glass.

If by chance those gloves were the ones purchased originally by Nicole at Bloomingdales in New York five years before, what other explanation could there be?  I suggest they were too small and OJ never wore them.  He could have gotten a larger size than XL that he could wear.  No one investigated that possibility but it could easily have happened.

If OJ had other gloves that were larger and did fit, how did these smaller ones get involved in the murders?  As came out in the trial, OJ's mansion had many guests and something as small as a pair of nice gloves could easily have been taken by almost anyone who came as a guest and no one would have noticed, particularly if they were unused.

Such forethought implies someone setting up OJ before the crimes.  The coincidence is too strong to be chance.  

We've already seen that the police, Fuhrman in particular, may have scrounged things like the gloves just in case.  As we'll see in one or both concluding episodes, Fuhrman could have conceived doing something like that or even actually would do it.

The other group mentioned in passing, the Colombian cartel, may already have had in the works for some weeks the prospect of a murder of Faye Resnick, the cocaine junkie who lived with Nicole at that time, or even Nicole herself.  

In the deep racist mindset of people like Fuhrman, OJ had stepped over the line by marrying a white woman.  To Fuhrman, OJ was uppity and not supposed to be rich and famous so he had to be brought down on few notches.  Gathering things that could be used as evidence in the future would be the smart thing to do.

And if you want back $25 K of cocaine that you think is stored at Bundy, you'd take advantage of gathering things that could be left at the scene if you thought you'd have any problems, things that would incriminate someone else.

Are either of these narratives more believable than the prosecution's story of an enraged 46 year old guy with bad knees who used three different knives to kill two younger and athletic people in that small space and come out with only a nick on the finger?

Reasonable doubt is what the defense needs.  When speculation provides a better explanation than the description provided by the prosecution, the jury has reasonable doubt.

On top of the demonstration that the gloves did not fit, most of the jury probably already had their minds made up.

The People V. . . . Episode Five

This episode sets the two main themes, battered women and racism, into juxtaposition.  For Jeffrey Toobin, from whose book this series was adapted, and practically all of those who believe OJ was guilty, the presumption that a spouse abuser can take the step up to murder settled the question of guilt, and the "race card" was a strategy to blind the jury to the "mountain of evidence" against OJ.  

Is it possible that racism was the actual dynamic for the accusing of and arrest of OJ and evidence manufactured to point at him and that the spouse abuse issue was used to blind the jury to the facts and in the process justify the racism?  My unsolicited opinion is that both are heinous and need to be set aside as we try to find the evidence that leads us to what really happened.  Unfortunately, drama lends itself to bringing in emotion and this series is good drama, no matter what the truth of the case was.  Also unfortunately, this episode makes the defense look like the racism defense was contrived simply for the sake of winning.  

Fortunately, this episode also shows some sensitivity to just how scary it is to be a black man in a white society.  Johnny Cochran was harassed by the police when he was an assistant DA early in his career.  Chris Darden saw he was being used because he was African American.  It was quite a moment when he persuaded Marcia Clark to take over questioning of Mark Fuhrman.  The drama of that moment was right on: she really had no clue what putting Fuhrman on the stand would do to her case.

The view of the series' writers is that every move by the defense was contrived.  That was illustrated in three ways.  First, it showed the way Cochran staged OJ's mansion.  That was really driven home by the fact that the condo was left unfurnished while OJ's mansion was gussied up.  I want to remind you that the condo was an empty commercial property, was on the market not long after the murders in June of 1994, and the jurors did not get to see the two sites until nearly a year later.  The prosecution had not anticipated that the condo would be empty and made no effort to bring in the very things that would have shown Nicole being a mother and a human being with a life.  

Did you notice that there were no scenes of the outside where the murders occurred?  Neither was there an effort to show the walkway at Rockingham where the bloody glove was found and how it related to the entrance to OJ's house. 

The second effort to show Cochran contrived the defense was in the conversation between Cochran and Darden about Darden's concern to show respect to one another.  Cochran looked bad in the scene because he said respect didn't matter.  Winning was all that mattered.  That conversation was not shown to be nuanced.  All lawyers by the nature of our adversarial trial processes are out to win.  And respect does not require one side to agree with the other.  Disagreeing cannot always be agreeable in the courtroom.

I liked how the argument between Darden and Cochran about the use of the "N" word was shown.  Don't forget the argument occurred before the jury was brought in.  Darden urged Judge Ito to prohibit the use the racial epithets on the grounds that they would enflame the jury and blind them to the evidence.  Cochran forcefully countered that the African American members of the jury heard that word and worse every day and were grown up enough to look past them in considering the evidence.

The third effort to show Cochran was a manipulator was the discussion about how juries accepted the best story and that the Defense would just have to tell a better one.  One key line may have gone unnoticed because it was set amidst the emotional discussion: "They will accept the story that covers the facts best."  In my experience working on defense of accused pastors, I saw how the prosecution's narrative, especially when it could use a very emotionally loaded cause to enrich its telling, like victimizing women, became very hard to overcome with a narrative that better accounted for the facts.  Cochran must have been very good at neutralizing the prosecution's story in the other cases he won fighting for justice for African American victims of police brutality.  

This episode brings up several other interesting things but let me touch on only one more, the dinner party of Judge Ito's friend, Dominic Dunn, at which the battered woman issue is brought up.  The host said that Nicole's parents were the ones who insisted that Nicole stay with OJ after the incidents of alleged abuse occurred.  Earlier in this episode, Marcia Clark had said there were 62 such incidents.  Somehow I find it hard to believe that even the loving grandparents would force her back into a violent relationship 62 times.  In the reading that I did, I saw only five.  One is too many, of course, but what actually happened in each and why are important.  While most battered women are victims of bad men and too many are killed upon separation from those men, there are rare situations where the woman is the violent one.  There are also instances where the woman contrives or makes up situations as a way of setting up a very lucrative divorce.  Being OJ's spouse was a very lucrative spot to be in.  To be divorced from him could also be very lucrative.  

We can examine that possibility just like we can the possibility that Cochran was only using the race card to manipulate the jury.  But neither will lead us to a meaningful conclusion about OJ's guilt or innocence.  Only legitimate evidence will do that.

We need to see what evidence is brought up by the series writers, which is inaccurate or inadequate, and which is ignored.  "Just the facts, Ma'am."

The People V. . . . Episode Three

This episode of "American Crime Story" opens with the touching scene of Robert Kardashian talking about OJ's arrest with the kids who would later become the subject of the contemporary reality show about them.  They asked if OJ did it.   That's the question this episode addresses.

Who actually believed OJ was innocent?  Robert Kardashian, his close friend who asked him to be godfather of his children, believed it.  So did a lot of the fans who cheered OJ on during the slow Bronco/police chase.

It was clear the police did not think he was, even those who had accepted his hospitality.  It was clear no one in the DA’s office did.  In fact, they released anything they could ahead of the trial to the public in a serious effort to taint public opinion against OJ.  The media was a mixed bag, leaning toward guilty.  They published what the DA leaked.  But the media also noted TIME MAGAZINE’s intentional darkening of OJ’s mugshot.  

What of his lawyer, Robert Shapiro?  His expertise was plea bargaining.  It made no difference whether OJ was guilty or innocent.  Shapiro wanted the best deal he could get.  The only problem was that OJ would not deal   He asserted his innocence from the beginning.  

If OJ had been poor, especially a poor Black, the court would have appointed a public defender to be his counsel.  There would have been no outside experts because there was no money.  There would have been no outside investigators or extra lawyers.  There would have been no “Dream Team.”

Imagine being in that position, poor, under-represented, with the DA’s office releasing evidence against you, and threatening the death penalty.  

Criminal jurisprudence in America values a competent defense for any accused person.  That’s why some cases get re-tried when it can be shown the defendant had incompetent counsel.  

Fortunately for OJ, he had wealth and could hire good lawyers.  So when OJ refused to let Shapiro do a plea bargain which would have meant OJ admitting to some measure of guilt, a defense attorney with court smarts was needed.  Nearing the end of his illustrious career, F. Lee Bailey was asked to help.  When Alan Dershowitz, a nationally famous Harvard law professor was on TV pontificating that OJ was probably guilty, Shapiro hired him in anticipation of having an appeal.  That took him off TV and into the dream team.  When it was clear to Shapiro that there were no African Americans on the team, he had to add Johnny Cochran.  While the episode brought up how the team would deal with the DNA evidence the police were so proud of gathering and which carried much of the DA’s case, we were not told that other lawyers were working on two things, child custody, and the potential of future civil law suits against OJ, protecting as much of his wealth as possible for the future support of his children and himself.

Shapiro shrewdly invited in a reporter from NEW YORKER MAGAZINE, Jeffrey Toobin, to counter the DA’s publicity.  The thrust of the defense would be that OJ was the subject of racial prejudice, of which Detective Mark Fuhrman was the foremost example.

The DA’s office beefed up its team by adding Chris Darden, a Black staff member.  Darden trusted Marcia Clark and the police evidence.  Despite what he was hearing in the Black community, he stepped up to the task as an honor.  Did he believe OJ was guilty?  He was a lawyer and did not have to believe it.  His job was to help present the evidence, counter the defense’s arguments to the best of his ability, and let the jury decide.  Those he was working with, however, were convinced the murders had been solved by the arrest of OJ.  And they did not encourage the police to investigate any other possibility.

Did Shapiro, Bailey, Dershowitz, et al, believe OJ was innocent?  Johnny Cochran did.  The others?  It seems, according to the episode, that they may have been in it for the money and the fame.  That’s the common misconception of the part of the public that believed OJ was guilty.  After reading all I could, I concluded that there was not complete agreement on the guilt/innocence matter.  But, like Darden, they had a job to do, present all the facts that raised doubt or proved innocence, argue against what was presented by the prosecution to the best of their ability, and let the jury decide.  The money and fame were nothing new to them.  They already had that.

OJ was fortunate.  Not only was his wealth enough to afford a skilled defense, he had the good fortune of having people on his team that could argue both sides and then settle on what to do in court.  The DA’s office was so invested in believing OJ was guilty that they could not deal with anything that did not support their narrative.  As a consequence, they were unwilling and unable to counter the "Dream Team."  

This third episode showed that the Simpson case occurred when Marcia Clark was in the process of divorce.  It is no wonder she made public an incident between OJ and Nicole from some years earlier where one of their domestic fights was called in on 9-1-1.  

In my experience as an advocate, I saw many times the anger of women, earned from bitter experience, which presumed a woman’s accusation was always true.  In some cases, a woman used a situation by misrepresenting it and destroying a minister’s career.  But I found practically no one willing to look closely enough to see the evidence I found.

There is so little about Nicole shown in the episodes so far that it becomes easy to see her as a helpless female victim.  It will be interesting if the writers for "American Crime Story" series fill out her character to show what it was that drew her and OJ together to the point where the series shows him every time he is asked saying how much he loved her and was devastated by her death.

The episode concludes with Johnny Cochran telling OJ that all he needs is one Black juror and he can get a hung jury.  

Spoiler alert: Cochran got his Black juror but not a jury that could not persuade one recalcitrant to join the majority for a guilty verdict.  The jury was not only unanimous that OJ was not guilty, but reported it out within four hours of deliberation!  Watch all future episodes to see if the series shares enough of the evidence that makes such a scenario possible.

If it does not, I’ll try to provide an adequate basis for their decision.  Or better yet, get Armanda Cooley’s MADAM FOREMAN from the library and read for yourself how and why they decided as they did.

The People V. . . . Episode One

Rather than begin with the trial or even the crime scene, the first episode begins with scenes of conflict between the Los Angeles Police and Africa American young men.  Scenes from the riots surrounding the exoneration of the police in the beating of Rodney King show the depth of the racial tension at the time of the murders.  The conversations shown between Johnny Cochran, whose law practice was built on representing some of those young people, and Chris Darden, a young member of the prosecutor’s office in Los Angeles, showed the stress that was going on within the African American community.

The Toobin book on which the series is based does not start there.  Few of the other books about the Simpson case did.  They were all written to discuss the case without taking into account the social context of the case.  Each writer had other purposes.  Another social movement, however, was to take front and center, spousal abuse.  

For the crime itself, what we are shown is the dog getting attention of someone who then sees the blood and the bodies and calls the police.  

For the investigation, we see the police spotting blood drops from OJ's Bronco to the house in Brentwood, and Mark Fuhrman leading detectives Lange and Vannatter along the fence on OJ’s property and finding a glove.  OJ cooperates and talks to the detectives without a lawyer present.  They find a cut on his finger and OJ can’t explain it.  The acting DA, Marcia Clark, is shown interviewing two people, one of whom found the victims and the other who claims to have seen OJ driving away from the scene of the crime and nearly running into her car.  That scene was then dramatized with the actor portraying OJ, Cuba Gooding Jr., shouting at the witness.

The defense also is shown in the first episode to be investigating their client.  They have him physically examined.  The doctors find no sign of any physical nature, not even a bruise.  The sore finger is not mentioned in the scene.   OJ is shown to go through a lie detector test.  It shows that OJ tests out by that particular expert to have a bad score, showing the machine picked up physiological signs as he answered questions which were considered to be signs of being untruthful.

I am not sure how the series will handle any of these scenes when it comes to the trial.  I presume that in those later episodes, the evidence of some of these matters will be argued.  If not, I will try to shed light on each whenever I think it will help.

For now, let me touch on eight things I am sure are not going to be dealt with. 

One, when OJ was interviewed by the police, he allowed them to take a substantial blood sample, only part of which was turned in as possible evidence for the case by the police.

Two, while OJ was with the police, they also gave him a physical.  All they found was the injured finger.  No bruises, bumps, or scrapes.  

Three, the episode would have been more adequate if it had not shown the alleged scene where a witness said OJ nearly ran into her car with his Bronco the night of the crime.  That there was such a witness I do not deny but whether she actually saw OJ was not used by Marcia Clark.  Dramatizing that scene makes the viewer feel as though it must be true.  If I had artistic control, I would have added a couple other witnesses describing what they thought they saw or heard, demonstrating the conflicting nature of testimony with so many witnesses, and leaving in just the verbal statement of the woman driver.  I’m sure that a future episode will go into why that witness was never called.  Update: Episode Three shows the driver sold her story for $5,000 to a TV program so she immediately lost her credibility and was dropped by the DA’s office.  

Four, the lie detector test scene from the first episode will be understood according to the individual viewer’s prejudice about the case.  Lie detector tests are not admissible in a court of law for very good reasons.  One is that false scores occurred far too frequently.  There are several techniques used by various experts and differing results can occur depending on the technique.  The state of mind of the client and the approach of the tester can lead to very different results.  I am asking viewers to take that scene with a grain of salt in terms of helping solve the murders.

Five, the scene where Fuhrman took Vannatter and Lange back to find the glove was inaccurate.  It occurred after sunrise, not before.  Toobin took Fuhrman’s word that it occurred in the dark.  Fuhrman writes fiction since he left the LAPD.  But his police reports show signs he was already doing it before he left.  He included the time of day along with the dramatic moment in the dark in Brentwood when the glove was shown to the detectives, as he described it.  The national observatory sunrise time for that place occurred almost an hour before the time he gave.

Sixth, anyone who watches crime shows knows about the integrity of a crime scene.  According to Fuhrman, he found the glove earlier and led the detectives back to it.  How did the glove get there?  If OJ had come that way and accidentally dropped it, any foot impressions he’d have left were messed up by Fuhrman and, a little later, by the three officers.

Seventh, the glove shown in the scene was the actual glove.  It matched the other glove found at the murder scene on Bundy.  They look like oak leaves that have fallen from the tree, crinkled and mostly flat.  The picture was on a poster screen set up for showing evidence to the jury.  Imagine sitting for eight months staring at such things as the lawyers on both sides went over and over things, especially the DNA arguments.  I’ll leave that to your imagination for now.

Eighth, regarding the location of the white Bronco the night the driver came to pick up OJ (the night of the killings), as the camera panned away from the driver outside OJ’s mansion, there was no Bronco there.  That was the testimony of the driver.  However, other witnesses indicated the Bronco was near the other gate during the whole time and the driver somehow did not see it.  The series showed the Bronco was not there and that biases the telling of the story.

Before I conclude, let me clarify the situation a bit.  For at least two months, OJ was scheduled by one of his sponsors to attend a golf outing in Chicago on June 13.  He scheduled a limo to take him to the airport at 11 am on the 12th.  The murders took place sometime around then.  The prosecution felt that OJ had time between 10 pm and 11 pm to kill his wife and her friend, dispose of the weapon and bloody clothes, and still meet the limo.  The Chicago trip was not a last minute attempt to escape.  In fact, it set a limit on the time during which OJ could have done the crime and led the prosecution to have great difficulty establishing their own narrative of how OJ could have done it. 

It was hard to be accurate but the first episode gave it a good try.  But was it adequate?  Did it put critical things in proper perspective?  Did it misrepresent something of importance?  Did it leave out critical information?  I will try to keep sorting that out as we go along during the series.