As Gary was testifying, I glanced over at the jury. They appeared despondent. I had a painful, dawning insight. The stronger, the more compelling our evidence became, the more they hated us.
We were all a little nervous on the morning of May 24, when Collin Yamauchi took the witness stand. Collin had done the first PCR testing at the LAPD lab-the lab the defense had taken to calling the “cesspool of contamination.” The defense would try to claim that he’d contaminated the samples before they got to Cellmark and the Department of Justice, so it wouldn’t matter what Robin or Gary had found. Garbage in; garbage out.
During his first appearance before the grand jury, Collin had been solid, but unpolished. This time he’d really gotten his act together. Under Rock’s direct, Collin calmly explained how he’d begun his testing by opening the vial of Simpson’s blood and placing a small drop of the blood on what is called a Fitzco card. This is a small package containing filter paper. In the process of opening it, he’d gotten a bit of blood on his gloves, but he’d promptly stripped them, discarded them, and put on new ones before moving over to the evidence swatches. Collin went carefully over the procedure he’d followed in dealing with those samples. He’d even used a fresh knife after cutting each swatch. Pretty damned careful.
Barry Scheck, of course, seized upon the “spilled” blood, arguing that it had somehow contaminated the evidence samples. But as usual, he was blowing smoke. Collin had been standing over fifteen feet away from the evidence swatches, which were sealed inside little paper envelopes, which had been placed inside coin envelopes, which were taped shut. How could the blood have reached them?
Gary Sims of the California Department of Justice had already testified that DNA does not “jump,” nor does it “fly.” It does not waft across the room as an aerosol and penetrate two layers of packaging. And even if you assumed for one mad moment that this was possible, how did this itinerant DNA manage to come to rest only on the evidence swatches, and not on the control swatches?
(Later on, one defense expert theorized gamely that the control swatches were contaminated, but in amounts so small you couldn’t measure them. Now think about this for a minute. A scientist knows, if anyone does, that if you can’t measure something, you can’t really say it’s there, now, can you? We’re not talking about quarks here. This is blood, a substance which is quantifiable even in trace amounts. But by then, we’d tripped so far through the looking glass that an inane observation like this one could actually pass for rebuttal.)
Collin’s testimony was going great. He was firm and lucid, no mean feat considering the technical detail he had to recount. The apprehension I’d felt when he took the stand was giving way to pride. Then, suddenly, things went radically wrong.
Rock asked Collin the following: “Based on what you heard in the media at the time or… before you did the tests in this case, did you have an expectation of what the outcome of these tests would be?”
This might seem like an odd question. But in fact, during our private conversations with Collin, he’d confided in us that he was a big fan of O. J. Simpson. We wanted to let the jury in on the fact that this man was not conspirator material. Naturally, we thought Collin would say something along the lines of how he’d admired Simpson as an athlete and how improbable he thought it was that Simpson could do something like this. The point was to demonstrate that if there was any “examiner bias,” it was in the defendant’s favor.
Instead, Collin blurted out, “I heard on the news that, well, yeah. He’s got an airtight alibi. He’s-he’s in Chicago… And I go, ‘Oh, well, he’s probably not related to the scene.’ “
Ito promptly cut off the witness and ordered counsel to sidebar.
“We have a huge problem.” He glowered. “We just brought in a statement by the defendant…”
What the hell could he be referring to? The statement Simpson gave to Lange and Vannatter in their interview on June 13? Section 356 of the California evidence code says that if one side introduces part of a writing or statement, the other side has the right to bring in the rest. But it was absurd to apply that rule here. Collin’s “alibi” remark had nothing at all to do with Simpson’s statement. It was simply Collin’s own conjecture, based on news reports-and false ones at that.
Johnnie whispered urgently to Scheck, and Scheck nodded. I knew exactly what he was saying: “Go for it. Get that statement in!”
And Ito was going to allow it!
Here’s the situation. Simpson’s attorneys had been dying to get that statement into evidence so that the jury would get to hear Simpson’s tape-recorded expressions of innocence without his ever being exposed to cross-examination. Problem was, they couldn’t introduce it on their own. They had to wait for us to bring it up. Collin, supposedly, had given them an opening.
We had to close it fast.
I knew that unless I played along like this was a serious legal question, Ito’s ego would be bruised and we’d pay dearly. We’d have to submit a motion to stop this thing.
I went looking for Hank and found him in the War Room.
“I’m going to need some paper quick, so I can get him to turn around without his losing face,” I told him.
That fucking statement!
How many hours had Hank and Chris and I-in fact, the entire team-spent agonizing over what to do about it? We’d looked at it from every side. There were a couple of good arguments for allowing it in. Phil had gotten Simpson to admit that the last time he’d visited Bundy was five days earlier and he told detectives he had not been bleeding at that time. That made it patently absurd for the defense to argue that the blood drops had been left by Simpson on a social visit to Bundy before June 12. But on the other hand, the defense wasn’t even thinking about arguing that Simpson had bled there on some other occasion, so we’d gain nothing.
At one point, Simpson had said that the last thing he did before leaving for the airport was to get his cell phone out of the Bronco. That part I liked. When you combined it with the cell phone records showing the call to Paula Barbieri at 10:03, it placed him in the Bronco just before the murders.
But the rest of the statement was a disaster for us. Not only were the cops’ questions real softballs, but when Phil asked whether Nicole ever got any threatening phone calls, Simpson responded, “You-you guys haven’t told me anything. I-I have no idea what happened… Every time I ask you guys, you say you’re going to tell me in a bit.”
Nice bit of sympathy grabbing. The defense was sure to play it for maximum schmaltz: “Poor Juice. Mean old cops won’t tell him anything. Is that any way to treat a grieving man who’s had no sleep in the past two days? He’s doing everything he can to cooperate. He’s giving a statement without an attorney present-surely not the action of a guilty man. And a blood sample? Why, he’d rolled his sleeve right up. Now, I ask you, ladies and gentlemen of the jury: why would he be so cooperative if he were guilty?
The only strategy worth considering was whether we should try and get into evidence that one snippet of tape where Simpson talked about getting his car phone out of the Bronco just before he left. That short excerpt would be limited enough to prevent the defense from getting the rest of the statement in. Nothing else was needed to explain or qualify it, according to the evidence code. Of course, the downside to playing one brief segment was that the jury would naturally wonder why we didn’t want them to hear the rest of the tape.