The People V. . . . Blood Evidence

For all the drama about the jury, the eighth episode had significant references to the evidence.  What was offered in the show by Criminalist Dennis Fung in three minutes of scientific jargon was actually spread out over weeks of expert testimony.  The prosecution tried its best to "educate" the jury about DNA; how it was determined; how the crime scene, Bronco, and Rockingham all had the blood of OJ, Nicole, and Ron.  The series writers emphasized that they thought the jury could never understand the DNA by having the District Attorney say it loud and clear.  In her book MADAM FOREMAN, Armanda Cooley reported that the jury did understand but that the prosecution and the experts mistook their boredom over the repetitious presentations as ignorance.

The prosecution had also used hair evidence and some other minor evidence they felt backed up their narrative that OJ did it alone and then trailed blood all the way back to Rockingham.

The hair and other minor evidence tended to be related to what was found on Nicole's body.  You may not have realized what Barry Scheck was talking about when he spoke of the blanket.  When the police first arrived on the scene, one officer found a blanket inside the condo at Bundy and brought it out to cover Nicole's body.  It was a nice gesture, of course, but with that blanket came months if not years of use by the whole Simpson family, meaning hair and other evidence could have come off the blanket and not from OJ at the time of the crime.

If you've followed this blog, you will remember that Vannatter took blood from OJ the day he got back from Chicago.  In this episode, Fung admitted that Vannatter turned it in many hours after taking it and that 1.9 ml. were not turned over.  What happened to that blood between 2:20 pm and about 8 pm that night?  Vannatter never provided an explanation and neither could Fung.

On the basis of the tainted evidence and the serious questions about how it had been handled by the police, the jury had ample grounds for reasonable doubt.  The "mountain of DNA evidence" against OJ may literally have disappeared during Criminalist Fung's responses to cross examination as shown in this episode.

One odd thing occurred at the conclusion of Fung's testimony: Criminalist Fung shaking all the lawyers' hands, both prosecution and defense.  That was unprecedented.  I would like to think he wanted to thank the defense for showing all the flaws in the blood evidence gathered by the police, flaws he saw and was honor-bound to present despite his own misgivings.  More likely, he was simply showing his cultural background of respect for the officers of the court.

The episode also brought up the "rehearsal" of what OJ might say if he were put on the stand.  It showed he would have been a terrible witness if Marcia Clark had a chance to challenge him on what she saw as motive, domestic violence.  While the impression is left that OJ was guilty of hitting his wife in the January 1, 1989 episode for which he pleaded "no contest" in court and even more guilty of lying about it, something that the series writers felt changed Robert Kardashian's view of OJ's guilt, there are a number of issues OJ faced in talking about Nicole.  For one, he did not want to say anything bad about her.  For another, he wanted to protect his kids from anything negative about her.  For a third, he did not want his and her privacy violated in front of anyone, especially his best friend, Kardashian.

OJ never was completely negative in talking about her.  That she was robust in her dealings with him when she was drunk or especially angry he admitted but always with the caveat that she loved the kids and was a great mother.  As a man, he was big and could take her physical outbursts.  He knew better than to hit a woman.  The only one who ever complained about his being violent with her body was Nicole and she had a vested interest if she had plans to divorce him at some point.  Did she actually fall and get bruised after drinking that New Year's of 1989?  If that is what really happened, OJ was willing to accept responsibility for her bruises in court.  

Nicole's friends and sister reported that she had complained to them, even saying that OJ was going to kill her.  Those women could have been used by Nicole to build a case for divorce.  The court could not really accept such testimony because it was third hand, and inadmissible as hearsay under law.   

The only other event of consequence was in 1985 when Detective Fuhrman responded to a domestic dispute and saw OJ with a baseball bat hitting Nicole's car, something Fuhrman calmed and ended up not taking any legal action against OJ.  There were other calls to 9-1-1 by Nicole but the judgment of either the 9-1-1 responder or officers dispatched to the scene led to no legal action against OJ.  There is no evidence the officers were star struck by OJ nor that they saw Nicole as a drama queen.  We do not know.

While OJ would have looked bad on the stand, his relationship with Nicole would not be easily understood by anyone.

In the series, the defense had already let Nicole's sister be the spokesperson for the prosecution's attempt to show motive of extending domestic violence to killing.  And the jury had not bought it.  They understood domestic violence, spousal abuse, and being a sexist jerk but did not buy that any of those led to the crime.  In the real trial, the defense was able to bring videos from earlier in the evening of the murders where the Browns hugged a smiling OJ as he left them after a dance recital of his daughter.  Testimony had been made that he "glared" and left "furious."  The videos showed otherwise.  Marcia Clark's motive for the crimes had not been demonstrated.

But the series writers show Robert Kardashian deepened his growing doubt OJ because of the "rehearsal."  And that was to be of great influence to both Jeffery Toobin and to Lawrence Schiller by the time they revised their respective books and put out their second editions.

Please understand that OJ may have been an abusive husband and caused the bruises and abrasions shown in the pictures.  I am trying to show that just maybe things were not what Nicole said they were, that there is reasonable doubt.  I have many dear friends who cannot accept that reasonable doubt exists when a woman accuses a man of such misconduct.  The series writers believe that the Browns, OJ's inlaws, would have known Nicole better than anyone and would have taken great care in considering the safety of the children as well as her.  They did not take Nicole seriously with regard to the alleged abuse and did not encourage Nicole's leaving OJ during their marriage.  I doubt that will persuade my friends.  I think I am a reasonable person and my friends happen to be unreasonable about this point.  That leaves my reader to have to decide between us.  

No matter what the evidence showed and failed to show, the die was caste for the public myth that OJ was guilty.

The People V. . . . Episode Seven

When I was reading about the case ten years ago, I was looking at the books in terms of evidence and timelines.  If there was by-play among the lawyers on either side or even between OJ and his friends, I did not pay much attention to them.  So I either missed a budding affair between Chris Darden and Marcia Clark or it is the figment of the series writers’ imaginations.  Likewise with Shapiro’s relationship with the dream team.  I knew him to be a deal-maker but I do not recall the kind of undermining that seemed to be going on as shown in this series.

I do not recall any reference to a “Colombian Necktie,” the nickname for a throat slashing intended to be a warning to others about messing with the Colombian drug cartel.  At the time I read about the case, there was only one comparative reference to the terrible wound to Nicole that was the fatal blow.  Prior to her murder, over the previous several years there had been a serial killer who chose blond women to be victims of similar throat slashing.  That murderer was still on the loose and could have been a suspect.

(Update: During the trial, according toWikipedia, the defense did bring up the "Colombian necktie" trying to show there may have been other suspects that were not being pursued by the police.) 

However, due to the number of different knives used in this case and witnesses speaking of a group of men fleeing the scene, the theory of a cartel killing is more plausible.  

Marcia Clark was shown to be astounded that a seasoned detective like Phil Vannatter did not know of the cartel’s assassination tactic.  She knew about it.  And she was aware, according to the series’ writers, of the reputation of the Mezzaluna Restaurant (frequented by Nicole and where Ron worked as a waiter) as a cocaine hotspot where major dealers met.  That alternative was never brought forward by the LAPD for whatever reason.  As noted earlier, they had their man already and they had the blood evidence.

I do not remember the books describing either that moment in the trial nor the awareness Clark had of the drug scene in Brentwood.  I also do not remember any vacation where Darden invited Clark to attend a birthday party of one of his friends.  The scene gave the series writers a place to present two important things: OJ’s TV pilot about navy frogmen (precursor of their famed Seal teams) and the prosecution arguments against police framing of OJ.  

About the frogmen show which was never completed or shown, there were scenes where OJ performed some techniques for using a knife in hand-to-hand combat.  It was brought up in the trial to show he knew how to use a knife and to show his agility for a big man.  OJ’s arthritic knees were not subject to testimony until the defense brought its case but the prosecution knew it had to counter that argument and chose the frogman TV pilot to do it.

About the problem Clark faced over police collusion to frame OJ, she said that with Fuhrman and the other detectives going back and forth so many times between Bundy and Rockingham, surely the press would have seen something because they were all over the place.  I will address that in another posting.

There were two other themes dramatized in this episode.  Robert Kardashian’s growing doubts about OJ’s innocence and the glove demonstration in court.

Kardashian was one of OJ’s staunchest supporters in the beginning.  As I recall from my original reading, he began to see OJ’s narcissistic, irrational side which he found offensive.  However, the series writers suggest he was doubting because of the blood evidence and the fact that no other leads were considered by the police.  “There are no other suspects,” he bemoans, according to the script.  

Al Cowling and he are shown opening the suitcase Kardashian was seen removing from OJ’s estate on the 13^th.  They did not know if it was full of the clothes OJ needed when he moved to the Kardashian residence to get away from the press or if it actually contained the missing bloody clothes.  They found nothing incriminating in the bag.  As I recall, the clothesbag used on OJ’s trip to Chicago was that same bag and neither it nor the golf bag had any signs of blood in or on them despite all the press speculation about them.

The showing of the gloves in court was most dramatic.  I do not remember Shapiro checking the gloves nor the by-play between the defense and Darden.  I do remember Clark being against a demonstration when there was no assurance of what the results would be.  The gloves did not fit.  

Not shown were two important facts, one from the prosecution and one from the defense.  Expert witness told Clark and the jury that the gloves fit snuggly.  That is one of their best features and why they are so popular.  They were like a second skin.  Expert witness brought by defense pointed out that these particular gloves do not shrink when dried after being wet.  

There are two common theories about why the gloves did not fit.  One, OJ manipulated his hand to be stiff fingered and hence appeared hard to put on.  The jury had a much better view of that than any media or book writers and they apparently took Johnny Cochran’s words seriously: “If they do not fit, you must acquit.”  Two, the bloody gloves must have skrunk as they dried.  But that was shown not to be so with those very specially-made gloves.  If those were the gloves used by the murderer, they did not fit OJ.  

(Update: An upcoming ESPN special on OJ's life quotes someone as saying OJ stopped taking his meds so that hs hands would swell, hence the gloves would not fit.  However, to get that result, OJ would have had to know two weeks in advance that Darden was going to try the gloves on him.  Darden did not even know that far ahead that he would do it.  Also, swollen hands would have made it hard for OJ to move his fingers well enough to remove the gloves but films from the actual trial showed he had no such difficulty with his hands.)

So far, there are really only two serious points and one speculation made by the series writers that might lead to reasonable doubt: The speculation about the way Nicole was murdered being a drug cartel warning was not followed up on by either side.  Detective Lange’s admission about taking evidence to his home overnight before turning them in, something he never did otherwise was damaging.  Finally was the fact that the gloves did not fit.  Are those enough to counter the spousal abuse motive, the blood evidence, and the lack of an alibi on which the original probable cause had been adjudged?  

Three more episodes may contain more grounds for reasonable doubt . . . or not.  

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.