4/12/2017 10 Things the Ethical Lawyer Can Learn From the OJ Trial Richard Jolley and Brian Augenthaler OJ murdered Nicole Brown and Ron Goldman • Murders: June 12, 1994 • Brentwood, L.A. • Arrested: June 17, 1994 • Arraignment: June 20, 1994 • Verdict: October 3, 1995 1 4/12/2017 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) 2 4/12/2017 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 Chicago) • Receipt for identical gloves purchased by Nicole Brown Simpson in December 1990 (and photos of OJ wearing those gloves) • Left glove found at Bundy crime scene and right glove found by Mark Fuhrman • 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? 3 4/12/2017 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 4 4/12/2017 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 • Kato Kaelin 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 5 4/12/2017 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 6 4/12/2017 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 7 4/12/2017 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 probable cause”. • 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 Los Angeles • The logical location for the criminal trial was the Santa Monica courthouse with a West Los Angeles jury pool • Was Gil Garcetti more interested in pursuing justice or winning elections? • Marcia Clark’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 8 4/12/2017 Juror Carrie Bess Interviewer: Do you think there are members of the jury that voted to acquit OJ because of Rodney King? 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?) 9 4/12/2017 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 perjury, or offer testimony you know to be false 10 4/12/2017 No. 4: a good faith basis for asking a question • Johnnie Cochran: “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 lawyers) • RPC 3.4: A lawyer shall not allude to a matter knowing it will not be supported by admissible evidence “Dream Team” attorney Johnnie Cochran 11 4/12/2017 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 12 4/12/2017 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-Jeffrey Toobin New Yorker article on Mark Fuhrman came out months before trial started 13 4/12/2017 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 14 4/12/2017 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! 15 4/12/2017 No.