Judy Brown’s Last Phone Call to : Proof that O.J. Is Innocent?

Michael T. Griffith 2017 @All Rights Reserved

If Juditha (Judy) Brown called and spoke with her daughter Nicole Brown Simpson between 10:15 and 11:00 on the night of the murders, and not at 9:40 as the prosecution claimed, this would prove that O.J. Simpson did not murder his ex-wife Nicole and her friend on the night of June 12, 1994.

When Lou Brown, Judy’s husband, spoke with a coroner’s investigator the day after the murders, he said Judy called Nicole at about 11:00. This is documented in the addendum to the coroner’s report. The limo driver who picked up O.J. at his house that night saw O.J. near his front door at 10:54. Anyone who has studied this case will agree that if Judy spoke with Nicole on the phone at 10:15 or later, O.J. could not have committed the murders.

Judy and Lou Brown

Judy called Nicole to tell her that she had left her eye glasses at the Mezzaluna restaurant, where the Browns had eaten earlier in the evening. Nicole then called the restaurant to ask one of the waiters, Ron Goldman, to bring the glasses to her. After speaking with Nicole, Goldman did not leave for at least another 10 minutes, according to co-workers at the restaurant. Goldman then went home, presumably to shower and change clothes. We know that Goldman changed clothes after he left work that night and that he ate a salad before he left his apartment to go to Nicole’s house. When Goldman brought the glasses to Nicole, he and Nicole were brutally stabbed to death on Nicole’s front patio area. If Judy called Nicole at 10:15, Goldman would not have arrived at Nicole’s house until around 10:50 or 10:55, which would rule out O.J. as a suspect.

When Judy Brown was questioned by , O.J.’s defense attorney, three days after the murders, she told Shapiro that she called Nicole “shortly before 11:00”:

1 Even when his marriage to Nicole was troubled and then ultimately failed, O.J. had maintained a very close relationship with Juditha, and she had always been his friend and ally. “I’m so glad O.J. has you on his side,” she said to me. “The children need their father.”

I asked her, and Nicole’s sisters Denise and Tanya as well, about the last time any of them had talked to Nicole. I was trying to narrow down the time of her death. “I talked to her shortly before 11:00 that night,” said her mother.

“How do you know that for sure?” I asked.

“Because when we got home from , I looked at the clock,” Juditha said. “I had to call her about leaving my glasses at Mezzaluna, but I didn’t want to call her too late. I remember that it was just a few minutes before 11:00.”

With that information, and knowing that Allan Park had picked up O.J. at Rockingham at a few minutes before 11:00, it seemed to me that it was clear that the murders on Bundy had taken place while O.J. was verifiably at home on Rockingham.

I kept checking back with Juditha, to make certain that she was certain. (Shapiro, The Search for Justice: A Defense Attorney’s Brief on the O.J. Simpson Case, New York: Warner Books, 1996, p. 33)

Judy said the same thing when she was interviewed on TV shortly after the murders. She said she had spoken with Nicole on the phone at about 11:00.

However, one week after the murders, Lou Brown went to the coroner’s office and said that Judy’s call could have been as early as 9:30 and no later than 10:00. About a week later, reporters asked Lou about the call time of “about 11:00” noted in the addendum to the coroner’s report, and, to judge from his wording, he seemed to put the time of the call between 10:00 and 10:30. One report quoted him as saying the call occurred at “about 10 p.m.” (, June 28, 1994). Another report quoted Lou as saying “it was probably closer to 10:00”:

A coroner's report today provided information that O.J. Simpson's attorneys said could help buttress the former football superstar's alibi for the night his ex-wife and a male friend were killed. But Nicole Brown Simpson's father questioned the accuracy of the coroner's report.

The report states that Nicole Simpson was "last known to be alive at about 2300 hours [11 p.m.] speaking to her mother on the telephone." But Louis Brown, Nicole Simpson's father, reached at his home by telephone, said the report was "irregular, timewise."

"It was probably closer to 10 [p.m.]," Brown said of the call from his wife Judith to Nicole Simpson. Brown said his wife made two calls when she returned home that

2 night: one to the restaurant where the family had just eaten to see if she had left a pair of eyeglasses; the other to her daughter to tell her the glasses were at the restaurant.

The timing of the phone calls is crucial to O.J. Simpson's claim that he was at his Brentwood mansion awaiting a limousine to take him to the airport at the time Nicole Simpson, 35, and Ronald L. Goldman, 25, were stabbed to death outside her home two miles away. (“Simpson Evidence Disputed,” Washington Post, June 28, 1994)

By the normal usage of English, saying “closer to 10:00” when being asked to comment on a time of “about 11:00” would usually mean between 10:00 and 10:30, not before 10:00. If Lou had meant to say the call was earlier than 10:00, presumably he would have said “before 10:00” or “prior to 10:00.” However, Lou might have been using “closer to” as a synonym for “before.” In subsequent interviews, he insisted that the call occurred before 10:00.

Perhaps this is an appropriate time to note that the Browns turned against O.J. soon after the murders and made many false statements about him. For example, a few weeks after the murders, Lou Brown falsely claimed in an interview that O.J. had stopped sending child support payments. When Denise Brown, Nicole’s older sister, first spoke about the issue of domestic abuse after the murders, she said she did not consider Nicole to have been a battered wife, but later she painted O.J. as a cruel husband and a chronic wife abuser, even though Nicole specified in writing in 1992 and on tape in October 1993 that O.J. had not touched her in anger since January 1989 (over five years before the murders). Denise and Judy testified that O.J. acted like he was in a dark, angry mood during his daughter’s dance recital a few hours before the murders, but that was not what Denise had told the police before the trial, and the defense obtained a home video taken right after the recital that showed Denise and Judy saying a friendly goodbye to O.J. and even kissing him on the cheek (the video also showed O.J. smiling and shaking hands with Lou Brown). Judy testified at the civil trial that when she asked O.J. at Nicole’s wake if he had anything to do with the murders, he would not answer her, when in fact she had originally said the opposite in a TV interview. When Judy was confronted with the TV interview during cross-examination, she conceded that O.J. had in fact answered her question and that he had denied any involvement in the murders. Many other examples could be given.

When waiter Ron Goldman heard that Nicole’s mother had left her eye glasses at the restaurant, he volunteered to take them to Nicole. “Ron interjected he’d be happy to return them,” said Tia Gavin, who waited on the Brown party (“Santa Rosa Woman Who Testified in O.J. Simpson Trial Reacts to His Parole,” The Press Democrat, July 21, 2017). Then, when Nicole called the restaurant, she asked to speak with Goldman and asked him to bring the glasses to her, according to Mezzaluna bar manager Karen Crawford, who took the call (criminal trial transcript, February 7, 1995).

Although the prosecution claimed that Nicole and Goldman were just casual friends, they were in fact dating and had been seen together in clubs and elsewhere during the

3 months leading up to the murders. Goldman had even been seen driving Nicole’s car around town. Based on interviews with some of Goldman’s friends, the Los Angeles Times reported,

Goldman also had an increasingly close relationship with 35-year-old Nicole Brown Simpson, whom he had exercised with, accompanied to dance clubs, and often met for coffee and dinner during the past month and a half. (“Victim Thrived on Life in Fast Lane, His Friends Recall,” Los Angeles Times, June 15, 1994)

So it is not surprising that after Judy called the restaurant, Goldman volunteered to take the glasses to Nicole. Nor is it surprising that a few minutes after Judy called, Nicole called the restaurant, asked to talk to Goldman, and then asked him to bring the glasses to her.

Nicole Brown Simpson and Ronald Goldman

Nicole apparently was planning a romantic encounter with Goldman when he arrived. Nicole was wearing a slinky, revealing cocktail dress when Goldman arrived (and was found dead in the dress when the police arrived at her house). When the police searched Nicole’s house, they found lighted candles in the master bedroom and bathroom and the master bathroom’s tub full of water. Lipstick was found on Goldman’s cheek.

Judy Brown might have been off by about half an hour on the time of her call to Nicole. There is evidence that she called Nicole at 10:17, not “shortly before 11:00.” 10:17 and “shortly before 11:00” are not all that far apart, especially if the call ended at 10:28. An error in time estimation of about 15 to 30 minutes is plausible. An error of more than double that amount of time is less plausible.

Robert Shapiro’s Proposed Stipulation and New York Daily News Sources

In the chambers of Judge Kathleen Kennedy-Powell on the last day of the preliminary hearing, Shapiro stated that the Browns’ GTE phone records that prosecutor had presented in court eight days earlier, on June 30, showed that Judy Brown called Nicole at 10:17, and he asked for a stipulation that the call occurred at 10:17:

4 The transcript that Judge Ito released was from a meeting in the chambers of Judge Kathleen Kennedy-Powell on July 8, the last day of Mr. Simpson's preliminary hearing.

At that meeting, the transcript shows, Mr. Simpson's chief lawyer, Robert L. Shapiro, cited telephone records presented to the court that he said showed that Mrs. Simpson's mother, Juditha Brown, called her at 10:17 P.M. on the night of the killings. (“Simpson Judge Refuses to Show Pictures of Victims,” New York Times, August 12, 1994)

Two articles by journalist Linda Stasi in the New York Daily News on July 8 and 9, 1994, said that sources who had access to the phone records reported that the records showed that phone call between Judy and Nicole began at 10:17 and ended at 10:28. I quote from Stasi’s July 9 article, which was a follow-up to her July 8 article:

The last conversation Nicole Brown Simpson’s mother had with her daughter lasted 11 minutes and ended at 10:28 p.m., sources in Los Angeles say.

The Daily News reported yesterday that the phone call began at 10:17 on June 12 when Juditha Brown, after discovering she’d left her glasses at the trendy L.A. eatery Mezzaluna, called her daughter in Los Angeles from her home in Dana Point. . . .

Yesterday, sources who say they have access to the records added that the call ended at 10:28 p.m. (“Call Opens 39-Minute Window,” New York Daily News, July 9, 1994)

New York Daily News article, July 9, 1994

It seems unlikely that both Shapiro and the New York Daily News sources misread 9:40 as 10:17, especially given the fact that the sources subsequently specified that the call ended at 10:28. These sources, like Shapiro, knew that the prosecution had the phone records. So it seems improbable that they would have risked discrediting themselves by reporting times they knew could easily be proven erroneous.

5 The transcript of the closed-door session in Judge Kennedy-Powell’s chambers was released about one month after the preliminary hearing. As mentioned, the transcript shows that when Shapiro asked for a stipulation that Judy called Nicole at 10:17, he said this was based on the phone records that Clark had presented in court eight days earlier. Amazingly, Clark appeared to suffer from amnesia. She pretended not to know what time the records gave for the call or even which records Shapiro was talking about. She also said that she did not know where the records were and would have to locate them. I quote from the transcript:

MR. SHAPIRO: We're going to ask for a stipulation regarding the phone records that were presented in open court from the phone call from Mrs. Brown to Nicole, which I believe was at 10:17. THE COURT: And is there -- is there going to be a problem with that? MS. CLARK: If that's what the records say, there will be no problem with that. But which record? MR. SHAPIRO: Phone records from the telephone company that you gave us. MS. CLARK: I'm going to have to locate it. I'll locate it and make sure. (Preliminary hearing transcript, July 8, pp. 2-3)

Are we really to believe that Clark did not know what time the phone records gave for this monumentally important call? She was the one who had subpoenaed the records in order to determine the time of the call! Are we really to believe that she did not know where those phone records were but had to “locate” them? The time of Judy’s phone call to Nicole was obviously a crucial, make-or-break issue and had been widely discussed in the press. So it seems extremely unlikely that Clark would have misplaced the phone records and would not have known what time the phone records gave for Judy’s call to Nicole.

And are we really to believe that Clark did not know which phone records Shapiro was talking about and that she had forgotten that she had presented them in open court eight days earlier? Shapiro had just mentioned that his proposed stipulation was based on “the phone records that were presented in open court”? Why did Clark pretend not to understand plain English? What was going on here?

Judge Kathleen Kennedy-Powell during the preliminary hearing

6 Following this bizarre exchange, the judge sealed the phone records and put the court in recess for 90 minutes for lunch. After the lunch break, Shapiro once again asked for the 10:17 stipulation, and this time Clark said that there was “no evidence” for the stipulation and that the prosecution would not agree to it. However, she did not produce the phone records to support her assertion and made no mention of a 9:40 time for Judy’s call to Nicole. Why not? Why did she not bring the phone records and prove right then and there that they did not show 10:17 as the time for Judy’s call to Nicole?

Marcia Clark and Bill Hodgman during the preliminary hearing

Clark eventually “located” the phone records. Seven months later, she presented them during the criminal trial, and they showed 9:40 as the time for Judy’s call to Nicole and 9:37 for Judy’s call to the Mezzaluna restaurant. If the phone records that Clark presented during the criminal trial were the same records that she presented during the preliminary hearing, then Shapiro and the New York Daily News sources must have misread them very badly, or else they were all lying.

Some researchers have suggested that Shapiro and other defense team members were Linda Stasi’s sources for the New York Daily News articles. This seems unlikely and illogical. Stasi’s articles indicate that her sources believed that the call time of 10:17 proved there was a “39-minute window” during which O.J. could have committed the murders. Both articles contrast the 10:17 time with the 11:00 time stated in the coroner’s report, and they note that the 10:17 time suggests O.J. could have committed the murders. Stasi’s first article mentions that the prosecution would “maintain that if she [Nicole] were alive at 10:17, O.J. Simpson would have had time enough to murder two people” (“Last Call for Nicole,” New York Daily News, July 8, 1994).

Clark might have rejected the 10:17 stipulation on July 8 to keep her options open, just in case 10:17 proved problematic in light of subsequently uncovered facts. This would explain her puzzling failure to mention a 9:40 call time during the preliminary hearing and her failure to bring the phone records back into court to back up her rejection of the 10:17 stipulation. This would also explain prosecutor Bill Hodgman’s numerous objections to

7 keep Lou’s statement about the 11:00 call time out of the official record on July 8, and Hodgman’s curious failure to mention a 9:40 time and/or the phone records when making his objections (discussed below).

Defense attorneys and Robert Shapiro sitting next to O.J. Simpson during the preliminary hearing

On July 8, Clark, Hodgman, and other prosecutors might have believed that the 10:17 time established a window of opportunity for O.J. to have committed the murders, but they surely must have realized that it was an extremely small window, and that the window might be proven unrealistic. These considerations could have led them to decide to reject the 10:17 stipulation.

During the six months between the preliminary hearing and the criminal trial, the prosecution realized that if Judy called Nicole at 10:17 and spoke with her for 11 minutes, O.J. could not have committed the murders. We know this because when the prosecutors presented their opening argument, they insisted that the murders occurred at 10:15.

The 10:15 murder time proved to be one of the prosecution’s many blunders. The defense blew holes in the prosecution’s timeline and presented evidence that the murders occurred at least 15 to 20 minutes later. Then, in a move that further damaged their credibility with the jury, the prosecution, on the last two days of the criminal trial, suddenly claimed that the murders could have occurred at or a few minutes before 10:30, after adamantly arguing for the preceding eight months that they must have occurred at 10:15. Among other things, this move, clearly done out of desperation, indicated that the prosecution’s timeline witnesses had either lied or had given erroneous testimony.

In 1999 and 2000, Henry and Thomas Johnson tried to obtain an original copy of the Browns’ 6/12/94 phone records from the phone company, GTE. In 1999, Lou Brown told the Johnsons he would sign a consent to release the phone records. They wanted a phone-company original because they doubted the authenticity of the records that the prosecution submitted during the criminal trial; they believed that Judy Brown made the

8 call sometime after 10:00, and they thought it was unlikely that the Browns could have driven from Mezzaluna to their home in Dana Point in time to call Mezzaluna at 9:37.

When the prosecutors became aware that Henry and Thomas Johnson had persuaded Lou Brown to authorize GTE to release the phone records, they went to great lengths to persuade him to withdraw his consent. Now, why did they do that? This was very odd behavior if the prosecutors were certain that the phone records showed Judy’s two calls as being made at 9:37 and 9:40. If the prosecutors had a genuine copy of the phone records, should they not have been anxious and glad to have GTE release another copy of the originals and settle the matter once and for all? To put it another way, why did the prosecutors reject an opportunity to prove that they had not altered the phone records?

Prosecutor Bill Hodgman persuaded Lou Brown to withdraw his consent by sending him a supposed copy of the phone records, and that copy showed 9:37 for the call to Mezzaluna and 9:40 for the call to Nicole. Based on this and on the urgings of Hodgman and others in the Los Angeles District Attorney’s Office (LADA), Brown withdrew his consent. O.J. then filed a lawsuit to obtain the records directly from GTE.

Keep in mind, too, that before O.J. filed his lawsuit to obtain the phone records, he and the Johnsons had tried to obtain them from the LADA. Why did not the LADA simply give them a copy of their copy of the phone records, since they had been displayed in open court twice? Even if Hodgman and others in the LADA believed that O.J.’s team would not believe what the LADA’s copy said, at least they could have said they were being cooperative and not hiding anything.

Incidentally, after the criminal trial, the prosecutors persuaded a superior court judge to turn over all exhibits from the trial to Hodgman. Hodgman then removed all the exhibits from the Los Angeles County Superior Court Exhibit Department. If the prosecutors truly believed that their case against O.J. was “overwhelming” and “conclusive,” why did they not leave the evidence exhibits in the Exhibit Department to be safely and properly preserved for future research and reference?

Shapiro Questions Dr. Golden About a Phone Call Between Judy and Nicole Brown at Around 11:00 at the Preliminary Hearing

Dr. Irwin Golden, the coroner, testified at the preliminary hearing on July 8, the day that Shapiro asked for the 10:17 stipulation and after Clark had rejected the stipulation. Shapiro tried to corner Dr. Golden on the fact that his investigator had spoken with Lou Brown the day after the murders and that Brown had told the investigator that Judy called Nicole at “about” 11:00.

Prosecutor William Hodgman doggedly fought to keep this information out of the record, and the judge sustained nearly all his objections, but Shapiro did manage to make it clear by his questions that Lou had told the coroner’s investigator that Judy had spoken with Nicole at around 11:00. I quote from Shapiro’s cross-examination of Dr. Golden:

Q Now, is there something in the report that indicates that one of your

9 investigators had information from the mother of the decedent that she was alive at 11 p.m.? MR. HODGMAN: Your Honor, I am going to object now because counsel is attempting to elicit inadmissible and unreliable hearsay evidence. . . . Q Did you have any information from any investigator that is filed under a county of Los Angeles investigator's report for the department of the coroner regarding the last time somebody saw or spoke to Nicole Brown? A Yes. Q What information did you have? A Am I allowed to testify on that or – MR. HODGMAN: I am going to object for lack of foundation because there is no indication yet that this witness relied upon that information, whatever it may be. THE COURT: Yes. Mr. Shapiro, I think you need to establish that foundationally before I will allow that testimony to come in. MR. SHAPIRO: Thank you. Q You previously testified you read all these reports; is that correct? A Yes. Not in exact detail, but I did look at them. In fact, some of these reports were preliminary, may not have been fully prepared, at the time I did the autopsy. Q When was the report that's -- we are referring to, that has in the upper left- hand corner "no. 3," prepared? A Okay. The form no. 3, prepared by investigator Ratcliffe, was prepared 6/13/94. Q Was that before or after your autopsy? A 6/13/94 should have been -- prepared before the autopsy. Q Have you had enough time to prepare yourself to testify in this case today? A Yes. Q Have you had enough time to review your reports? A Yes. Q Do you think you would need some more time to prepare yourself adequately for testimony? MR. HODGMAN: I object. That is argumentative. THE COURT: Sustained. BY MR. SHAPIRO: Q Is it your testimony that you did or did not consider the investigator's report before you have testified here today for any -- in any area? A I did consider those parts of the investigator's report that I considered relevant to my testimony, and I have already testified about her measurements that she took. That's the ones I have been asked about. Q Is time of death relevant to your testimony? A Yes. Q Is -- didn't you just say that eyewitnesses are very important in establishing time of death? A Yes. Q Would you consider a mother talking to her daughter as being an eyewitness to when somebody was last alive? A Well, I meant someone actually witnessing her death, as often happens when death is pronounced in a hospital. We know the exact time of death.

10 Q What if somebody recorded the time of a telephone call? Would that be of any help to you? MR. HODGMAN: Objection, your Honor. That calls for speculation. THE COURT: Overruled. Can you answer that? THE WITNESS: A telephone call to the decedent? THE COURT: That is what you mean, isn't it, Mr. Shapiro? MR. SHAPIRO: Yes. THE COURT: Yes. THE WITNESS: Yes. That would be useful. BY MR. SHAPIRO: Q Is there anything that was done by anyone from the coroner's office to try to ascertain that? MR. HODGMAN: Objection. That calls for speculation. MR. SHAPIRO: He has the official reports. He can look at them. THE COURT: Overruled. You may answer. THE WITNESS: Yes. BY MR. SHAPIRO: Q What is it? MR. HODGMAN: Your Honor, now I will object on the grounds counsel is attempting to elicit hearsay and hearsay of a potentially unreliable nature. There is an addendum to the report to which counsel is referring, which states, in part, "the following information summary is based on preliminary information and cannot be completely verified at the time of this report." In addition, what counsel is attempting to elicit does not fall within an exception to the hearsay rule. Even though contained in what may be characterized as an official record, you still have second level hearsay. So on all those grounds, I object. THE COURT: I still don't think, Mr. Shapiro, you have established the foundation the court needed to be established before that information could come in for the limited purpose for which the doctor considered it, if he indeed considered it. I don't know whether he did. That is the foundation that has not been established. MR. SHAPIRO: I believe, your Honor, he has testified an eyewitness or somebody establishing the time the decedent was last known alive would be one of six factors he would consider in establishing time of death. THE COURT: I understand that. But specifically in this case there has been no testimony he, in fact, did rely on any statement from someone indicating they had had a telephone conversation with the decedent; And that's what you need to establish before I will allow that testimony in for a limited purpose only, not for the truth of the matter. BY MR. SHAPIRO: Q If you had some information as to the time the decedent was last talking to her mother, would that be of any benefit to you in coming to your estimate as to the time of death? A My estimates are based on the body measurements. I do not use -- I did not use any information about a telephone conversation. Q Did you see any information about a telephone conversation when you came to your conclusions?

11 A I heard about a telephone conversation and did see it in the report. Q Who did you hear about it from? A The initial -- the initial report of the telephone conversation? Q Yes. A I believe I heard it on the news or in the paper. Q Is that before you saw it in your report? A Yes. Q You mean the news had it on before it was in your investigator's report on the 13th? A I believe the news used the investigator's report -- preliminary investigator's report. Q Are you saying the news read the report before you did? A No, I am not saying that at all. Q My question now is -- A All I am saying is I did not use any telephone conversation to come to this time of death determination. I am using body measurements and rigor mortis, livor mortis, cooling of the body and the gastric contents. That has nothing to do with a telephone conversation. Q It is 10-1/2 hours after the fact [the coroner did not get to the crime scene until 10.5 hours after the murders], and you would rather rely upon that than upon a mother's testimony that she -- or mother's comment she had a telephone conversation with her daughter? Which one do you think is more accurate? MR. HODGMAN: Your Honor, that's compound. THE COURT: Among other things. Sustained. MR. SHAPIRO: Thank you. We will go on to something else. (Preliminary hearing transcript, July 8, 1994, pp. 17-22)

Hodgman’s conduct raises a number of questions. If Hodgman and Clark had phone records that proved Judy called Nicole at 9:40, why did Hodgman not introduce, or even mention, those records when Shapiro began to ask about the 11:00 call time recorded in the addendum to the coroner’s report? Why was Hodgman so worried about the official record merely showing that on June 13 a grieving, shocked Lou Brown thought his wife had called Nicole at about 11:00? For that matter, if Hodgman had proof that Lou was mistaken, why would he have even cared about what Lou had told the coroner’s investigator?

All Hodgman had to do was say something like this: “Your Honor, Mr. Brown made an honest mistake. Here are the Browns’ phone records, and, as you can see, they show the call was made at 9:40.” Or, if Clark and Hodgman had truly “misplaced” the all-important phone records but at least remembered the time they showed for the call to Nicole, Hodgman could have said, “Your Honor, I have seen the phone records. We displayed them last week in court. We can prove that they show that this phone call was made at 9:40. We will present the phone records again shortly.”

But Hodgman did none of these things. He never even mentioned the phone records during his numerous objections when Shapiro cross-examined the coroner. In fact, after Clark rejected Shapiro’s request for the 10:17 stipulation, neither Hodgman nor Clark

12 mentioned the phone records again for the remainder of the last day of the preliminary hearing. Clark did not produce the phone records until seven months later, during the criminal trial.

Those who believe this issue has been settled in the prosecution’s favor point to the fact that Shapiro and stipulated during the criminal trial that the phone records established the time of Judy’s call to Mezzaluna at 9:37 and her call to Nicole at 9:40. But what if the prosecution altered the phone records? Why did no one from GTE ever authenticate the phone records? What if the phone records that Clark presented in the criminal trial were not the same phone records that she presented in the preliminary hearing? As mentioned, this would explain Clark and Hodgman’s odd statements and behavior at the preliminary hearing regarding the phone records, Shapiro’s proposed 10:17 stipulation, and Lou Brown’s statement to the coroner’s investigator.

Shapiro probably never imagined that the prosecution might alter the phone records. So when he saw the phone records that Clark later presented, and when he saw they gave the time for the Judy-Nicole phone call as 9:40, he concluded that he had misread the records when he saw them during the preliminary hearing and that both Lou and Judy had been mistaken (see The Search for Justice, p. 33).

Is it really so hard to believe that the same prosecutors and police personnel who tried to suppress other exculpatory evidence (such as the dance recital video tape), who “lost” or “misplaced” crucial evidence (such as the blood-covered lens from Judy’s eye glasses), who “failed” to collect potentially exculpatory evidence (such as the blood drops on Nicole’s back), who pressured witnesses to try to get them to change their stories, who attacked witnesses who would not change their stories and whose stories pointed away from O.J., who leaked false stories to the press to make O.J. look guilty (such as the bloody ski mask story and the Ross Cutlery knife story), and who put forward evidence that was clearly planted (such as the back-gate blood and the sock blood)—is it so hard to believe that they would alter one page of some phone records to suppress evidence that would have destroyed their case?

O.J. and Nicole

13 Irregularities in the Phone Records that Hodgman Sent to Lou Brown

The copy of the Browns’ phone records that Hodgman sent to Lou Brown in December 1999 contains a number of irregularities. Judy’s calls to the Mezzaluna restaurant and Nicole appear on page 6 of the phone bill. This page was part of the evidence board that Clark displayed during the criminal trial. Most of these oddities are not visible to the naked eye; to see them, you must enlarge the image by at least 80 percent.

* “BILL DATE” is spelled “BCLL DATE.”

* The number “6” in “Page 6 of 17” is larger than any other number of the page.

* On the evidence board, the phone number for the 9:37 call is 310 447-866—the last number is cut off. But on the phone bill (line 6), the phone number is 310 447-8647. In other words, the first three numbers of the third set of numbers are 864, not 866.

* On line 15, the “CA” after Beverly Hills is out of line with all the other CA’s in the column.

* On lines 16 and 17, there is a one-minute call that has a charge of 77 cents to “WAngeles.” Line 18 has a two-minute call to “WAngeles.” But the longer call has a charge of only 68 cents.

* The charges for the 9:37 and 9:40 calls, and for a number of calls above and below them, are blocked out. Only five of the 18 lines on page 6 show call charges—lines 1, 2, 16, 17, and 18.

Some researchers have noted other irregularities, but these are the ones I can see in my digital copy of page 6 with the image enlarged by 80-100 percent.

If someone altered the phone bill, they would not have altered all the entries, but only enough entries to make the record appear to say what they needed it to say. So the fact that some of the other calls on Hodgman’s copy of the phone bill have been verified as genuine does not explain the irregularities that researchers have found in the record.

Could the Browns Have Driven from the Mezzaluna Restaurant to Their Home in Dana Point, 69.1 Miles Away, in 65-67 Minutes?

Obviously, if the Browns took 68 minutes or longer to arrive to their house after leaving the restaurant at no later than 8:30, Judy could not have called Mezzaluna at 9:37 and the phone records produced by the LADA are not genuine. In theory, assuming they left Mezzaluna at 8:30, the Browns could have arrived home at exactly 9:37:00, exited their car and dashed into the house in a matter of seconds, and then called Mezzaluna before 9:37:59, which would have generated an entry of “9:37 p.m.” on the phone bill. But if they took 68 minutes or longer, the phone records now in evidence are false.

Eventually, the Browns settled on the story that they left Mezzaluna at 8:30, that they arrived home 65 minutes later at 9:35, and that Judy called the restaurant at 9:37 and

14 Nicole at 9:40. However, there is reason to doubt that the Browns drove home in 68 minutes, much less 65 minutes.

The drive from the Mezzaluna restaurant to the Browns’ home in Dana Point was 69.1 miles. Some researchers argue that on June 12, 1994, the drive was 2 or 3 miles longer due to the roads and road conditions that existed at the time. However, I am going to use the shortest distance that current map programs provide for the drive, just to give the Browns’ story every benefit of the doubt. The Browns would have had to make that 69.1- mile drive in fewer than 68 minutes to arrive home in time for Judy to call Mezzaluna at 9:37 and Nicole at 9:40. And we should keep in mind that they were driving a Jeep Cherokee with an adult in each seat and two grandkids either sitting on laps or sitting without seatbelts in the back of the vehicle.

According to Henry and Thomas Johnson, Department of Transportation (CalTrans) data turned over to them in 2000 show that on June 12, traffic was very heavy from 8:00 to 9:00 on the route that the Browns drove. According to the Johnsons, the data show that approximately 34,400 vehicles drove through an 8-mile stretch between 8:00 and 9:00 PM on the route that the Browns drove. Assuming an average vehicle length and width common for vehicles in the , the Johnsons estimate that traffic would have slowed to an average speed of 29 mph in that 8-mile stretch (T. H. Johnson, The People vs. O.J. Simpson: The Real Crime, pp. 53-60; Henry Johnson, Double-Crossed for Blood: O.J. Simpson’s Constitutional Disaster, Los Angeles: Professional Publishing House, 2002, pp. 211, 249-250; one of the Cal Trans documents is reproduced in T. H. Johnson’s book Pursuit of Exhibit, p. 48).

Assuming an average speed of 30 mph for the 8-mile slowdown identified by the Johnsons, it would have taken the Browns 16 minutes to drive those 8 miles. As mentioned, the distance from Mezzaluna to the Browns’ home on Monarch Bay Drive in Dana Point was 69.1 miles. Assuming the Browns left the restaurant at 8:30 and not a second later, this means that to get home in time for Judy Brown to call Mezzaluna at 9:37, they would have had to drive the remaining 61.1 miles in no more than 51 minutes —which would have required an average speed of 71.9 mph for those 61.1 miles, with six people, including two grandkids, packed into a Jeep Cherokee. Furthermore, if, as the Browns claimed, they made the drive in 65 minutes, they would have had to drive the remaining 61.1 miles in 49 minutes—at an average speed of 74.8 mph.

It should also be noted that the drive from the restaurant to Dana Point included 14 traffic lights, two 90-degree turns, and then waiting for the community gate guard to buzz the Browns into their gated community.

Detectives Tom Lange and Philip Vannatter said the Browns lived “at least ninety minutes from Brentwood [the restaurant was located in an area known as Brentwood]” (Lane, Vannatter, and Dan Moldea, Evidence Dismissed: The Inside Story of the Police Investigation of O.J. Simpson, New York: Pocket Books, p. 28). When T. H. Johnson drove to the Browns’ house from Mezzaluna, it took him 87 minutes, and that was when using a diamond lane part of the way.

15 Richard (“Dave”) Wagner claimed he made the drive in just 62 minutes, but in reading the account of his trip, we discover that he did not encounter an 8-mile slowdown, that he used a diamond lane for part of his trip (an option that was not available to the Browns), and that his average speed after he passed the Los Angeles airport, which was most of the trip, was 75 mph. How likely is it that the Browns would have driven 75 mph for most of the trip with a full jeep that included two of their grandkids?

The Time of the Brown Party’s Departure: Around 8:45

As mentioned, to have any hope of driving the 69.1 miles from the Mezzaluna restaurant to their home in Dana Point in time for Judy Brown to call the restaurant at 9:37, the Browns would have had to leave the restaurant by no later than 8:32. The Browns said they left at 8:30. However, there is considerable eyewitness testimony that they left at around 8:40, 8:45, or even 9:00.

During the grand jury hearing on June 21, 1994, Marcia Clark said the Brown party left at “approximately 9:00 o’clock” after hearing Mezzaluna bar manager Karen Crawford say that she thought they left at “around 8:30 or 9:00”:

Q. Do you recall seeing the party Nicole Simpson was with leave the restaurant? A. I saw them walking out the door. I can't be positive what time they left, but I do remember seeing them leaving. I think, you know, I told them to have a nice evening. Q. Do you recall approximately what time that was? A. It was around 8:30 or 9. I'm not positive. . . . Q. Now after Nicole and her party left at approximately 9:00 o'clock p.m., did you receive a phone call? A. I did. I received a phone call from a woman. . . . Q. Did you get another phone call after that? A. Yeah. . . . Q. Did you recognize the voice? A. Yes. Q. Whose voice was it? A. It was Nicole's. Q. What time was that, approximately? A. I would say it was between 9:30 and 9:45. (Grand jury transcript, June 21, pp. 211-212, 215)

During the preliminary hearing, Crawford said the Browns left between 8:30 and 9:00:

Q At some point, did you notice at what time Nicole and her party left? A They left, I would say, between 8:30 and 9:00. . . . Q Now, so Nicole and her party left between 8:30 and 9:00? A Yes. (Preliminary hearing transcript, July 1, 1994, p. 7)

At the preliminary hearing, John De Bello, a Mezzaluna manager, said the Brown party left between 8:30 and 8:45:

16

I would say about 8:30, 8:45, within that time frame. (Preliminary hearing transcript, June 30, p. 94)

Tia Gavin, the waitress who served the Brown party, said the Browns left Mezzaluna at around 8:45:

Q: Do you recall what time Nicole and her party left? A: Between 8:30 and 9:00, 8:45ish. (Criminal trial transcript, February 7, 1995)

Lange and Vannatter said that the Brown party left at around 8:45: “Circa 8:45” (Evidence Dismissed, p. 142).

Detectives Tom Lange and Philip Vannatter

A consistent theme in the testimony is that the Browns did not leave at 8:30 but at around 8:40 or 8:45. If they left at 8:40, much less 8:45, they could not have arrived home in time for Judy to make a 9:37 call.

Those who accept the phone records in evidence as genuine point to the following facts that support the times of 9:37 and 9:40 for Judy’s two calls:

* Karen Crawford said that Nicole called the restaurant between 9:30 and 9:45, and that Judy called before Nicole called. Crawford was the one who found Judy’s glasses, cleaned them, and put them in an envelope for Goldman to take to Nicole later that night.

* John De Bello said that Ron Goldman left the restaurant between 9:48 and 9:53.

* Tia Gavin testified at the criminal trial that she clocked out at 9:58 and that Goldman had already left by the time she clocked out.

* Stewart Tanner, a bartender at Mezzaluna, said that Goldman left the restaurant at about 9:50. Tanner also said that the Browns left the restaurant “in the vicinity of 8:30 give or take.”

17 Interestingly, these four witnesses stated that they did not see Goldman leave the restaurant—they assumed he left but did not see him leave—and De Bello added that he saw nothing in Goldman’s hands when he last saw him that night. Did Goldman set the glasses down for a minute after Crawford handed them to him and then forget to take them with him when he left the restaurant? Did he then come back and get them on his way to Nicole’s house 20-40 minutes later, after he had gone home, showered, changed clothes, and eaten a salad, and after most of the other employees had left?

Furthermore, Gavin testified at the criminal trial that the Browns told her that they were going to take the children to get ice cream after dinner. When asked if she had offered the Brown party dessert, she said that she did but that the Browns said “they were taking the children out for ice cream” (criminal trial transcript, February 7, 1995). There was a Ben & Jerry’s ice cream shop across the street from Mezzaluna, and we know that Nicole was seen in the shop that night, and that a small cup of Ben & Jerry’s ice cream was found at Nicole’s house when the police searched the house at 12:35 or 12:40.

If Lou and Judy took Denise and Dominique’s two young sons to get ice cream with Nicole and her two children, they could not have driven home in time for Judy to call Mezzaluna at 9:37. Denise Brown said that she and her parents did not go with Nicole to get ice cream, but Denise made a number of questionable and inaccurate statements before, during, and after the trial, and has continued to do so over the years.

Additionally, we must keep in mind that all of these witnesses—Crawford, De Bellow, Gavin, and Tanner—spent time discussing their stories with detectives and with the prosecutors. It is not hard to influence a witness to alter their story when you convince them that the events they saw or experienced “must” have occurred earlier or later than they originally thought they did. Imagine a scenario, for example, where the prosecutors and/or detectives told these witnesses that the Browns’ phone records proved that Judy called the restaurant at 9:37. The witnesses would have naturally felt compelled to alter their stories to make their times consistent with what the phone records allegedly documented. A number of witnesses changed their stories in ways that helped the prosecution after spending time with the prosecutors and/or the detectives.

When Clark questioned Crawford during the criminal trial, she displayed the Browns’ phone records and asked Crawford if her recollection of the time of Judy’s call to the restaurant was consistent with what the phone records showed. Why, then, did not Clark or Hodgman use the phone records during the preliminary hearing to establish the time of Judy’s call to Nicole when the coroner testified or before or after he testified?

In any case, these witnesses’ accounts pose a problem for the 9:37 and 9:40 call times, since Crawford, De Bellow, and Gavin put the Browns’ departure time at around 8:45, and since Tanner said they might have left after 8:30. If the Browns left Mezzaluna at 8:32 or later, much less at around 8:45, they could not have arrived home in time to call the restaurant at 9:37. In fact, according to their claim about how much time elapsed between the time they arrived home and the time they called the restaurant, they would have had to leave the restaurant by 8:30.

18 Evidence of a Later Time for the Murders

If Judy Brown talked to Nicole from 10:17 to 10:28 and/or if the Browns left Mezzaluna at 8:32 or later and/or if the Browns took longer than 67 minutes to drive home, the phone records that Clark introduced during the criminal trial are not genuine, and the murders occurred too late for O.J. to have been involved in them. Even if Judy talked to Nicole 47 minutes earlier, at 9:40, the murders might have occurred closer to 11:00. But if one or more of the above events took place, this would mean that the phone records in evidence have been altered and that the murders occurred no earlier than 10:50 and might have even occurred after 11:00.

Before anyone knew what they were supposed to say, some of the witnesses gave accounts that suggested a time of around 11:00 or later for the murders.

* Steven Schwab initially said that he saw Nicole’s Akita at 11:15. He said this early in the morning on June 13, just hours after the event. Months later, when he testified for the prosecution, he changed the time to 10:45 or 10:50, claiming that he based his revised time on TV shows that he watched.

* The day after the murders, when events were freshest in her mind, Denise Pilnak told Eric Malnic and David Ferrell of the Los Angeles Times that she heard the dogs start barking at shortly before midnight:

As dawn broke, neighbors and passersby began gathering outside the crime scene. Denise Pilnak, a jogger who lives nearby, remembered hearing dogs barking shortly before midnight. "It was nonstop barking," she said. "It made me think something was going on with the neighbors.” (“O.J. Simpson’s Ex-Wife Found Stabbed to Death,” Los Angeles Times, June 14, 1994)

Pilnak told police officers much the same thing the day after the murders: she told them that she heard dogs start barking at 11:30. The following day, June 14, she was interviewed by journalists again and repeated her statement that she heard dogs begin to bark shortly before midnight (criminal trial transcript, July 11, 1995).

* About 20 minutes after Officer Robert Riske arrived at Nicole’s house at 12:13 PM, he saw a small cup of partially frozen ice cream. If the murders occurred at 10:15 or 10:35, the ice cream should have been melted by the time Riske arrived, since obviously the ice cream would have had to be left out before the murders occurred. When Riske testified at the criminal trial in February 1995, he said he found the ice cream cup sitting on a stairway banister inside the house at about 12:35 or 12:40, but sixth months earlier, defense sources, presumably relying on police sources, told Newsweek magazine that Riske found the ice cream near the bodies:

A cup of partially frozen ice cream was found near the bloodied bodies of Nicole Brown Simpson and Ronald Goldman, raising new questions about when the victims were killed, Newsweek reported.

19 The defense may use the ice cream to argue that the victims were alive later than prosecutors have contended, making it impossible for O.J. Simpson to have killed his ex-wife and her friend, the magazine said in its Aug. 15 issue. . . .

Prosecutors have said Nicole Simpson and Goldman died between 10:15 p.m. and 11 p.m. on June 12.

But police found the cup, with much of the ice cream still frozen, near the bodies sometime after 12:10 a.m. on July 13, unidentified defense sources told the magazine.

The timing of the discovery would suggest that Nicole Simpson and Goldman were alive after 11 p.m. because otherwise the ice cream would have melted in the 60- degree weather, Newsweek said. (“Partially Frozen Ice Cream Raises Questions in O.J. Murder Case,” Deseret News, August 7, 1994)

Riske appeared to do an amazing about-face about the condition of the ice cream when he testified at the criminal trial. During direct examination, he twice said that the ice cream was melted when he saw it. But, during cross-examination, he said it was only half melted:

Q: By Mr. Cochran: With regard to this ice cream, when you first saw this ice cream, you described the ice cream as a bowl of melting ice cream; isn't that correct? A: That's correct. Q: It wasn't melted at that point, was it? A: In my opinion, no. It was melting. Q: It was melting? A: It was about half and half. . . . Q: And when you first saw this ice cream, what time was it when you first saw that ice cream, the melting ice cream? A: I would estimate 12:35, 12:40. Q: So at that time, at 12:40, this melting ice cream in the Ben and Jerry's container had not fully melted, right? A: Not in my opinion, no. (Criminal trial transcript, February 9, 1995)

Since it turned out that the cup of ice cream was found inside the house, as Riske stated at the criminal trial, the ice cream presumably would have been melted and creamy by the time Riske saw it at least two hours after the prosecution’s timeframe for the murders. Riske most likely did not stare at the ice cream but probably glanced at it for two or three seconds. Two or three seconds is all the time most people would need to be able to tell if ice cream in a small cup were melted or half melted. If Nicole or one of her two kids placed the ice cream cup on the banister at, say, 10:55 or 11:00 or 11:15, this would explain why the ice cream was only half melted when Riske saw it. If the ice cream was placed on the banister at 10:55 or later, much of what we think we know about the murders is wrong.

20 Conclusion: Two Thorny Issues

So what are we to conclude from all this? Did both Lou and Judy Brown err by nearly an hour and a half in their initial statements about when Judy called the Mezzaluna restaurant and Nicole? Even though the Browns were shocked and depressed, would they not have remembered when one of them last spoke to their murdered daughter? Did Robert Shapiro blunder when he read the phone records that Marcia Clark first presented in court? Did the New York Daily News sources likewise blunder when they read the phone records? Given the make-or-break importance of the time of Judy’s call to Nicole, would not Shapiro have been careful to note the time? Why would he have lied about the time when he knew that the prosecutors had a copy of the phone records? Did the Browns really leave Mezzaluna by 8:30 as they claimed, even though most of the witnesses who saw them in the restaurant that night said they left at around 8:45, and even though Detectives Lange and Vannatter also said they left at around 8:45? Did Lou and Judy really drive the 69.1 miles from Mezzaluna to their home in just 65-67 minutes? Yes, in theory, the Browns could have arrived home in 65-67 minutes by driving over 70 mph most of the way there, but would two grandparents with two grandkids in the car have driven like that? Can ice cream in a small cup sit on a banister inside a house for over two hours and still look only half melted? Even assuming the ice cream had marshmallows in it, as some have suggested, are not most people able to tell the difference between half-melted ice cream with marshmallows in it and melted ice cream with marshmallows in it, even if they only look at it for a two or three seconds?

On the other hand, do not people under stress sometimes make big mistakes when trying to recall when they spoke with someone? Is it really so hard to believe that Shapiro lied about the 10:17 time because he knew it would prove problematic for the prosecution’s timeline? Is it not telling that both Shapiro and Johnnie Cochran stipulated that the phone records established that Judy called Mezzaluna at 9:37 and Nicole at 9:40? Given Stewart Tanner’s testimony, is it not at least possible that the Browns did in fact leave the restaurant at 8:30? Is it unreasonable to suppose that the Browns changed their minds about going to get ice cream with Nicole and her kids because they were anxious to get on the road? Did the Browns take an alternative route home that enabled them to arrive home in 65-67 minutes? There were, after all, other routes from the restaurant to Dana Point. Or, did the Browns simply drive 75 mph or faster once they cleared the 8-mile slowdown, which would have enabled them to get home in time for a 9:37 phone call to Mezzaluna? Many people who lived in that area at the time drove around 75 mph on that highway on a fairly regular basis. So could not the Browns have made it home in 65-67 minutes even if it took them 16 minutes to get through an 8-mile slowdown? Are we really to believe that the prosecutors and/or the police persuaded Crawford to lie about when Judy and Nicole called, and persuaded Crawford, De Bello, and Gavin to lie about when Goldman left the restaurant? What if the ice cream that Riske saw had marshmallows in it, and what if the marshmallows made the ice cream falsely appear to be only half melted? Given the fact that, for some reason, no pictures were taken of the ice cream, and given the likelihood that Riske did not look at the ice cream for more than a few seconds, can we really reach any firm conclusions about the time of the murders based on Riske’s recollection of how the ice cream looked?

21 There are no definitive answers to any of these questions. Whether one answers “yes,” “probably,” “possibly,” “unlikely, “implausible,” or “no” to these questions will often depend on whether one already thinks O.J. is guilty or innocent.

There are, however, two thorny issues that do not appear to lend themselves to any plausible innocent explanations: (1) the prosecutors’ statements and actions regarding the phone records and the time of Judy’s call to Nicole during the preliminary hearing, and (2) the prosecutors’ efforts to keep GTE from releasing the Browns’ phone records.

(1) Within a few days after the murders, Marcia Clark and the other prosecutors surely knew, as major newspapers were noting, that the Browns’ phone records were monumentally important and that the time of Judy’s phone call to Nicole was absolutely critical to their case. Clark was the one who had subpoenaed the phone records, and she presented them with great fanfare on June 30 during the preliminary hearing. Unless she was unbelievably incompetent and/or suffered from severe short-term memory loss, she surely knew what time the phone records gave for Judy’s call to Nicole, and she surely would have kept them in a place where she could quickly retrieve them.

Therefore, I find it extremely hard to believe that Clark was not lying and stalling when she said she did not know what time the phone records showed for Judy’s call to Nicole or where the phone records were located when Shapiro asked for the 10:17 stipulation in the judge’s chambers on July 8. I also find it extremely suspicious and baffling that during the 90-minute lunch break after the bizarre exchange in the judge’s chambers, Clark did not retrieve, or have someone else retrieve, the phone records and bring them back into court to prove that Judy called Nicole at 9:40. I further find it very suspicious and odd that when Clark rejected Shapiro’s request for the 10:17 stipulation and claimed there was “no evidence to support the stipulation,” she said nothing about a 9:40 time for Judy’s call to Nicole and made no reference to the phone records to support her claim.

And I find it equally suspicious and odd that the prosecutors were so desperate to suppress the fact that Lou Brown told the coroner’s investigator that Judy called Nicole at about 11:00. If the Browns’ phone bill had put the time of that call at 9:40, Hodgman surely would have mentioned this at some point during his determined effort to suppress Lou’s statement. If nothing else, if the prosecutors had phone records that showed the call occurred at 9:40, they would have produced that evidence after Shapiro’s cross- examination of the coroner to erase any doubt on the issue.

(2) If the prosecutors had supported Lou Brown’s decision to authorize GTE to release his phone records, there would be no reasonable doubt about when Judy Brown called Mezzaluna and Nicole that night. But, instead, the prosecutors went to great lengths to persuade Lou to withdraw his authorization. Why? Why did they do that? Why did they care about five-year-old phone records? By any logical standard, the prosecutors’ actions make no sense if they had nothing to hide. If the prosecutors had a genuine copy of the phone records, they should have been anxious and happy to see GTE release them.

About the Author The O.J. Simpson Case

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