“Also,” I continued, “it’s reasonable to assume that Ron’s murder was not the rash impulse of a jealous ex-husband, but the calculated elimination of a witness to Nicole’s murder.” That, of course, would also justify a charge of murder one.
No one objected. Most significant, Gil Garcetti once more tacitly agreed. There was a brief silence as we all recognized that the first momentous decision in this case had been made. We would charge Orenthal James Simpson with two counts of murder one.
Next item on the agenda: strategy for the prelims. The big question concerned how much evidence to put on. Normally, a preliminary hearing is a bare-bones production. The prosecutor submits just enough evidence for a judge to find probable cause that a suspect should be bound over for trial. If you go beyond that, you’re unnecessarily allowing the defense early access to your case and your strategy; the conventional wisdom says that you should make them work for it through discovery motions. But this case was anything but normal.
In effect, the defense already had access to our case: they were entitled to receive the grand jury transcripts. They’d be able to prepare themselves for most of the witnesses we intended to call. So now that we’d lost the advantage of a bare-bones strategy, I argued, we should present a relatively complete case-that way, we’d not only make sure that the public realized the strength of our case, but the municipal judge would feel more confident binding Simpson over for trial.
“Our evidence is strong,” I told my colleagues. “I think we should just lay it out there for the world to see.”
This meant that we would call the dog-bark and time-line witnesses for sure. And, of course, the blood witnesses.
Oh, God. That meant Dennis Fung.
“We’ll need to do some remedial work with the criminalists,” I mumbled, shuddering slightly at the prospect of watching Fung shuffle through his reports in front of millions of viewers. Still, he had collected the evidence. I’d have to spend some serious prep time to whip him into shape before the prelim. But there was no choice but to put him on.
Collin was another matter. I had confidence that Collin would turn out to be a pretty good witness at trial. (And, indeed, he was.) In the meantime, however, he needed some prep time to get down the lengthy technical explanations of DNA. I felt it would be better all around to hold off on DNA testimony until trial, when we could put on the sophisticated results from Cellmark. In the meantime, I suggested to my comrades, why not go with more conventional tests? I knew the person to do them.
“Think Special Investigations would let loose of Greg Matheson?” I asked, looking around the room.
Greg was a highly esteemed serologist at the Special Investigations Division. He was scrupulously honest, and I knew from his previous appearances on the witness stand that if we used him to augment Fung, he could present the evidence in a simple, straightforward way. He could also fend off attacks on cross without becoming irritable.
Someone asked whether Greg’s tests might use up too much of our blood samples. Good point. If we tested all the blood drops taken from Bundy for the prelims, we’d consume too much to allow for both the prosecution and the defense to do separate tests later on. And I wanted to have enough for both sides to do their own tests. Maybe it was a throwback to my days at the defense bar, but I always felt the prosecution should welcome independent verification of its lab work. If their results supported ours, we’d be golden.
Brian Kelberg offered a suggestion: “Why don’t you have Greg test just one of the blood drops at Bundy?” he asked. “A single drop on the trail would be enough to establish identity for the prelim. And if those drops are Simpson’s, he’s made.”
I saw nods all around the room. I scrawled a note to pull whatever strings necessary to get Greg Matheson assigned to us.
For the time being, we decided to hold off on one major category of evidence: DV, domestic violence. We all agreed that the physical evidence alone demonstrated enough premeditation to warrant murder in the first. That meant we did not necessarily have to introduce any battering incidents to support the charge. And to tell you the truth, I was just as glad to stay clear of this issue for the moment. The only way DV might be thrust to the fore was if Simpson attempted to plead insanity, or tried to float some other kind of heat-of-passion defense. In that case, we had to be ready to refute. Lydia Bodin authoritatively cited several cases in which murders that arose from violent domestic quarrels were nevertheless prosecuted at first-degree. So even if Simpson tried to worm his way out of this by claiming temporary insanity, we could still charge murder one.
Early the following week, we served a second warrant on Rockingham.
I began to write this one myself, but thankfully, Curt Hazell took over to make sure that it was airtight. This was an abundance of caution, but caution was necessary. By now, of course, I had had an opportunity to read carefully through Phil’s affidavit in support of the first warrant served on Rockingham the morning of June 13, and was distressed to find several glaring errors.
Phil had written, for instance, that Simpson had left town unexpectedly, when, in fact, his trip to Chicago had been planned in advance. Phil had apparently gotten that misimpression as the result of asking Kato where Simpson was. Kato had passed him off to Arnelle, who’d said something to the effect of “Isn’t he here?”
Phil had described the stain on the Bronco’s door handle as “human” blood. But the criminalist had only done a presumptive test, which showed the presence of blood. In theory, it could have been animal blood.
The most serious thing I saw in that warrant, however, was not an error, but an omission. For whatever reason, Phil had failed to put in the affidavit that they’d had to leap the wall that morning to unlock the gate. He certainly hadn’t mentioned it to me when he’d called me for advice on the warrant. I was seriously annoyed by this.
Even though the warrantless entry seemed, under the circumstances, justified, the omission of it on the affidavit could serve to seriously undermine his credibility.
Both Curt and I knew that come the preliminary hearing, we would end up doing battle to justify the cops’ entry and defend their integrity. For now, I was content to see that the second warrant was done right. I wanted a thorough search for the items we now knew Simpson had on the night of the murders. Principally, we were looking for the knife from Ross Cutlery and the dark sweats Kato had seen Simpson wearing during the early evening, neither of which had turned up. I also wanted to search the Bentley. If we found no blood there, it would indicate that Simpson had not wounded his finger until after the outing to McDonald’s; that, in turn, would place the cut closer to the time of the murders.
The five of us-Tom, Phil, David, Bill, and I-arrived in a single car at Rockingham on the morning of Tuesday, June 28. Reporters blocked the gates. Overhead, I could hear the thrum of copters. The scene looked like something out of Apocalypse Now.
“Did you guys request those?” I asked Tom.
“It’s the media,” he replied, disgusted.
We parked on Rockingham and were ushered in by a couple of uniforms. I met up with John Stevens, a photographer for the D.A.‘s office, whom I’d asked to come on this search to videotape the grounds. I wanted him to record Allan Park’s view of the driveway and front door from his position facing the Ashford gate. This would allow me to demonstrate to a jury how Park’s vantage point allowed him to see Simpson entering the house. I also showed John a couple of other areas we should document-for instance, the south pathway where the glove had been found. If a case takes months to come to trial, you can forget little details of layout. You find yourself clinging to frames of videotape. It’s essential to capture those images right away.