4/12/2017

10 Things the Ethical Can Learn From the OJ Trial Richard Jolley and Brian Augenthaler

OJ murdered Nicole Brown and

• Murders: June 12, 1994 • Brentwood, L.A. • Arrested: June 17, 1994 • Arraignment: June 20, 1994 • Verdict: October 3, 1995

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5 “killer” pieces of physical evidence

• Ron Goldman and Nicole Simpson’s blood in OJ’s Bronco • OJ’s blood at the Bundy crime scene • Bloody glove at Bundy and the bloody glove at OJ’s house • Bloody footprints at scene matching bloody footprint in OJ’s Bronco • Trace evidence – hair and fiber evidence linking OJ to crime scene and Goldman

Goldman’s blood in the Bronco

• The Bronco was locked and was not accessed until the tow yard • LAPD detectives asked Kato if he had spare keys the morning after the murders • Mark Furhman was never in the Bronco (mistake spare tire testimony)

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OJ’s blood at Bundy

• OJ’s blood drops next to bloody Bruno Magli size-12 shoe print (1 in 170 million) • OJ’s blood on back gate (1 in 58 billion!) • Phil Vanatter planted it on the gate?

Bloody gloves

• Aris XL cashmere-lined gloves (less than 200 pair sold exclusively by Bloomingdales) (unavailable west of ) • Receipt for identical gloves purchased by in December 1990 (and photos of OJ wearing those gloves) • Left glove found at Bundy crime scene and right glove found by • Blood and hair of victims and Simpson found on gloves • How did Mark Fuhrman get lucky and plant a glove that OJ wore? How did Fuhrman get OJ’s blood unless it was already at the crime scene?

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A rich man’s shoes

• Bloody footprints from a Bruno Magli size 12 found leaving scene and on Nicole’s back • Matching footprint found in OJ’s Bronco with victims’ blood on it • Bruno Magli shoes sold only at 40 locations including Bloomingdale’s • Less than 10% of population wears size 12 (OJ’s size)

Trace evidence

• Fiber from Ron Goldman’s shirt found in Bronco and in OJ’s house • Fiber from OJ’s Bronco found on Ron Goldman • OJ hair fiber found in knit cap at scene

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5 pieces of damning circumstantial evidence

• Kato’s long distance call • Limo driver Allan Park • OJ’s cut hand • The near miss near Nicole’s house • A history of violence

The most famous houseguest

• places long distance call to friend (who testified) at 9:37 PM • Kato had just gone to McDonald’s with OJ • OJ was standing outside and watched Kato until Kato went into the guest house • Kato tells friend that he hears a noise, either an earthquake or prowler • “Call the police if you don’t hear from me…” • Call ends at 10:52 PM

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Meanwhile, the limo driver is waiting for OJ

• Driver Park is buzzing OJ at the gate since 10:40 PM • Park sees Kato come outside with a flash light • Park sees 6’ African American man walking up the driveway • A minute later, OJ finally answers the intercom • Park is on the phone with his boss and hangs up at 10:55 PM • OJ overslept and just got out of the shower • Park sees some other six foot, African American man in predominately white Brentwood at 10:54, just as Kato steps out to investigate?

OJ’s changing story

• Same side as the blood drops • First: “I don’t remember. Maybe in a rush to catch my flight.” • Then: “I broke a glass...went bonkers…” • “Or actually, maybe I reopened a previous cut.” • Civil trial: probably from a fingernail

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Jill Shively’s story

• “All of a sudden, a white car comes flying north on Bundy with his lights out, and I barely missed him…It was O.J. Simpson.” • Left her home to get some food • Two or three blocks from the scene of the murder • 10:50 PM • Never testified

Domestic violence

• “He’s going to kill me and get away with it and charm the world because he’s OJ Simpson.” Nicole Brown, a week before her murder.

• Prior to 1989: police called 8 times to the house • January 1, 1989: OJ beats Nicole so badly she requires hospitalization; no contest; 120 hours of community service • “He’s going to kill me! He’s going to kill me!” • October 25, 1993: Nicole makes two 911 calls

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No. 1: your number one duty is to your client

• The venue decision • RPC 3.8 states a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by ”. • Judicial use of resources requires not going forward unless there is a good faith basis that guilt can be proven beyond a reasonable doubt • RPC 1.3, Comment 1: personal inconvenience not a valid basis for making client decisions, but need not press for every advantage

“A Downtown Jury”

• Nicole Brown Simpson and Ron Goldman were murdered in the Brentwood area of • The logical location for the criminal trial was the Santa Monica courthouse with a West Los Angeles jury pool • Was more interested in pursuing justice or winning elections? • ’s unwarranted confidence in the downtown jury pool had a huge impact • “Let me tell you, I lose respect for any woman that take an ass whooping when she don't have to. Don't stay in the water if it's over your head — you'll drown.“ – Carrie Bess

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Juror Carrie Bess

Interviewer: Do you think there are members of the jury that voted to acquit OJ because of ? Bess: Yes. Interviewer: You do? Bess: Yes. Interviewer: How many of you do you think felt that way? Bess: Oh, probably 90 percent of them. Interviewer: 90 percent. Did you feel that way? Bess: Yes. Interviewer: That was payback. Bess: Uh-huh.

“Diligence” in the context of civil lawsuits

• Is your client the government entity as it applies to that particular matter? • Do you evaluate your litigation decisions on what is best for the government entity in that case or generally (are we making bad law…etc?)

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No. 2: addressing race/gender in voir dire

• OJ: 9 African American, 1 Hispanic, 2 white / 10 women and 2 men • Batson: burden on the person making the challenge • Proposed Rule 36: objective observer standard (burden shift) • WAPA has proposed an alternative GR 36 • RPC 8.4: prohibits a discriminatory act in professional activity

No. 3: no such thing as a perfect witness

• Jill Shively accepted $5,000 to make an appearance on Hard Copy • Use subpoena power on Al “AC” Cowlings • Put on Faye Resnik • Fact witnesses > experts • RPC 3.3: Don’t suborn , or offer testimony you know to be false

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No. 4: a good faith basis for asking a question

• : “Columbian Neck Tie” • RPC 3.1: A lawyer shall not controvert and issue unless there is a non-frivolous basis for doing so (exception for criminal ) • RPC 3.4: A lawyer shall not allude to a matter knowing it will not be supported by admissible evidence

“” attorney Johnnie Cochran

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No. 5: curating a scene for a site inspection

• Rockingham vs. Bundy • Making OJ’s house fit the defense’s trial themes • RPC 3.3: A lawyer shall not knowingly offer false evidence • RPC 3.4: A lawyer shall not alter material that may have potential evidentiary value • CR 34: Site inspection

“Dream Team” attorney Carl Douglas

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No. 6: dealing with the media

• RPC 3.6: A lawyer shall not make a statement to the media that will have a substantial likelihood of prejudicing the proceeding • RPC 3.8: Prosecutors must avoid making media statements that have a substantial likelihood of heightening public condemnation • RPC 3.6 (b) permits dissemination of information contained in a public record

Could the DA’s office have handled the media better? • Who is your target audience? Jurors? Court staff? Parties? • None of the jurors in the OJ case regularly read newspapers • Would putting positive information out about Mark Fuhrman have changed anything? • The defense attorneys got their story out- New Yorker article on Mark Fuhrman came out months before trial started

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No. 7: If everything is important, nothing is important • A week of testimony from DNA lab director Robin Cotton • 8 days of testimony regarding stab wounds, autopsy and victims’ cause of death • Denise Brown testified for four days on domestic violence issues • Best jurors only capable of remembering a few facts a day • Prosecution never admitted the suicide note, the Bronco chase evidence (disguise, passport, cash) or testimony from Vanatter or AC Cowlings on OJ’s guilty state of mind

Prosecuting attorney Chris Darden

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No. 8: making big strategic decisions – the glove • Look at that expression • RPC 1.2: A lawyer shall abide by a client’s decision concerning the objectives of representation and the means pursued • RPC 1.4: A lawyer shall explain a matter to the extent necessary to permit an informed decision

No. 9: witness preparation isn’t sexy, but it is critical • RPC 1.1, Comment 5: Competence means preparation • Kato Kaelin’s critical testimony lost in bizarre presentation • Chris Darden prepped Mark Fuhrman for 30 minutes!!!! • Dennis Fung’s blunders could have been raised and dismissed on direct exam • “Dream Teamer” Johnny Cochran called a witness who said he saw a White vehicle drive away from Nicole’s Condo that could have been a Bronco!

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No. 10: trials take their toll – the importance of early work on closing • RPC 1.3, Comment 3: Don’t procrastinate • Marcia Clark underwent general anesthesia at the dentist office the night before rebuttal arguments • Large portions of Chris Darden’s closing on the DV evidence were rambling and ineffective • The instructions are highly predictable-closing is based on the instructions!

Questions? Comments?

Thank you!

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