OJ by the sea.

O.J. by the Sea

O.J. by the Sea

Notes from different corners of the world.
Jan. 3 1997 3:30 AM

O.J. by the Sea

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       The defense has a plan, never publicly revealed but nonetheless known to all but the most isolated Trobriand Islanders: The last thing the jurors will hear and see before they go home for two weeks of holidays is an hour or so of O.J. Simpson telling them--in the words of Michael Brewer's amazing question during the plaintiffs' examination--who "the real O.J." is. The quote actually originates in the so-called suicide note, in which Simpson pleaded with the public to focus on the "real" O.J., not "this lost person." Observers more jaundiced than even myself might wonder whether "the real O.J." is the one spending all his time looking for "the real killers." But, to get back to the defense's plan, the strategy is to fill the week with physical-evidence witnesses, back-timing to the Simpson Xmas special.
       Perhaps in an excess of seasonal zeal, the week's first testimony concerns "little red balls." But it's not what you think, no matter what you're thinking. Dr. Herbert Macdonnell is a blood-spatter expert making a return appearance in the Simpson matter, and he spends the morning basically reprising his testimony in the criminal trial. Microscopic little red balls, he says, on Side 3 of one of the socks found in O.J.'s bedroom, are consistent with a wet-transfer bloodstain from Side 2. Since sides one and four are the outside surfaces of the sock, two and three the facing interior walls, a stain that gets from two to three doesn't necessarily have to deal with the problem of a leg in between. Conclusion: The bloodstain on the socks was planted later, long after Simpson had shed the items.
       Macdonnell also proves conclusively why guys who go into science are different from you and me. He describes, using photographs, the experiment he conducted to see if Aris Isotoner gloves, the kind found at the crime scene, will shrink if subjected to blood.
       "I had two gloves of course, a right and a left glove. And it was my understanding that they shrank, or could have shrunk, as a result of being exposed to moisture--specifically blood, a wet material--and then drying out again. Therefore, I used blood in my experiment. I had the two gloves separated. I had one on of course, the left one on the left hand, the right one on the right hand, but not at the same time. I put a latex glove, for example, on my right hand, and had the Aris extra-large glove on my left hand. I had blood drawn, a known volume. And I put my hand over a large glass funnel--which in turn emptied into a graduated cylinder so I could measure the volume that I recovered as I poured the blood onto and into the glove--and dumped the entire amount, which was approximately 2 milliliters, could be centimeters if you prefer, and I smeared it around. I gave it a fair test. I smeared it around with the latex glove, and I did as much as I could for about 30 seconds or so, just smearing it until it was--I thought it was--it might begin to clot, so I just stopped, and it all drained, went into the funnel, and then I sat the glove down and timed the drying time. Then I repeated it with the other glove, done almost immediately because I still had a needle in my arm, so I wanted to continue right along."
       You know, I practice the same no-dawdling-with-a-needle-in-my-arm procedure in my own work, so I can vouch for the rule. You're still on the stick; don't take that coffee break just yet.
       "That tag shows 'extra large.' I left it on. And [I] did the same thing again by wetting the glove, as I felt was as fair and reasonable as I could do. I wanted to see the results. I wasn't trying to just pour it on and run it off. So again, I did the same thing. I put them in a constant-humidity chamber and let them dry, and then I timed the drying time.
       "Before I had started either of these experiments, I had seen diagrams made previously showing measurements with all kinds of lines and figures which seemed to me to be confusing and, if not confusing to me, I thought it might be confusing to a jury. So I tried to do something relatively simple. I put the gloves on a copy machine. I calibrated the copy machine--
       "That's the constant-humidity chamber; that's potassium chloride slurry underneath; and this is the system that is used by ASTB, American Standard Testing Bureau, for calibrating hydrometers. I didn't use a dry hydrometer. I used the system that calibrates hydrometers."
       Again, that's the way I do it, so who's to argue?
       "Anyway, I copied this on a copy machine that--I put a transparent ruler, both 90 degrees to each other--[was] previously calibrated to see if there was any elongation or compression of the copy machine itself.
       "I was delighted to find out my copy machine is quite accurate.
       "I copied it in this manner, just by laying the glove down prior to the experiment. Then, after the experiment, after the gloves were completely dry, I put them down again, both the right and the left, up and down, every way I could, and I did--I made absolutely no effort to spread it out: I didn't do that before, I didn't do it afterwards. I put it on, closed the cover, copied it on a transparency so then I could put the transparency of the 'after' on the regular copy, the photocopy of the 'before.' And I wanted to see how much it [had] shrunk. And that's as simple as I could make the experiment. I could not detect any measurable shrinkage on--on either glove. That was the bottom line."
       This is to be a week of experts, and this testimony shows what's good and bad about experts. If you believe them, their authoritative demeanor commands respect. If you choose to believe they're full of $300-an-hour hot air, each one offers a slightly different variant on a stock comic character: the wacky professor. On cross, Ed Medvene elicits the information that the witness has his lab in his house (or, as Macdonnell suggests, "I live in my laboratory"), that it is not certified by anyone, and that the witness makes his career by being a witness. When Macdonnell demurs, Medvene reads an excerpt of an interview with the witness into the record:
       "In response to a question, you once told a reporter that you probably were entitled to be included in the Guinness Book of World Records because you testified in more courts, on more subjects, than any other human being. You said: 'I think that is still true. But I don't think I'll do it. It's--it's just an interesting comment I made after something about the Guinness Book of World Records was quoted to me, and I think I made that remark.' Was that a truthful remark, sir?"
       "That sounds like something I would have said, yes."
       And, throwing back a critique flung frequently at cops during this case, Medvene gets Macdonnell to acknowledge the paucity of notes he took documenting his sighting of "six or seven, or 12, or 30" little red balls--he has given each number at a different time--on Side 3 of Rockingham Sock A. The sum total of documentation presented to the jury is one photo, taken not by Macdonnell but by Dr. Henry Lee. The stain represented by the balls was tested presumptively for blood, again by Lee, but the witness acknowledges the material was never identified positively as human blood. But, he says on redirect, "everything I know about blood tells me that's blood."
       Bob Baker has heard Macdonnell admit to Medvene that, as to the gloves, he is not an authority, only "a wearer." Since his expert has been laymanized on that issue, Baker decides to make lemonade, asking the witness for a simple layman's opinion.
       "Did you see the glove demonstration during the criminal trial?"
       "Yes."
       "In your opinion, did those gloves fit Mr. Simpson?"
       Not even on Night Court could you get that question in. Of course the objection is sustained, but Baker has just rerun a video inside the jurors' minds, and, if the video had a title, it would rhyme with "acquit."
       The defense's next expert made a memorably strong impact on the criminal trial. Dr. Michael Baden was the anti-Lakshmanan, the pathologist who, for each analysis laboriously presented by the prosecution's chosen pathologist, offered an equal--if terser--and opposite re-analysis. Dr. Lakshmanan posited a short struggle; Dr. Baden insisted on a long one. Dr. Lakshmanan said one killer could have committed the crime; Dr. Baden strongly suggested the presence of a second culprit. Baker is hoping lightning will strike twice, and on direct examination, Baden--gray, curly hair, rumpled, a common-sense New Yorker's way of speaking--does score again.
       Bob Blasier, ramrod-straight with the aid of a back brace, takes Baden over the familiar territory, which is no less suggestive the second time around. When the pathologist originally examined the envelope containing the eyeglasses that Ron Goldman had been returning to Nicole, everything was in the envelope. Months later, when evidence had been sent by the LAPD to Baden's lab at Albany, one of the eyeglass lenses was missing. "I don't know," Baden deadpans, "what happened to it." Now, no theory has ever been connected with the envelope and the missing lens. The only other piece of information regarding the envelope that conflicts with the plaintiffs' view of the case has been Lee's testimony at Trial 1 that he found what might have been a partial shoe print on the envelope. If you wanted to hide that shoe print, presumably you'd contrive to lose the envelope, not one of the lenses inside.
       This is reasonable-doubt stuff, and we quickly move to one of Baden's prime jobs: to argue with his "close friend" and an "excellent forensic pathologist," Dr. Werner Spitz. Spitz had testified for the plaintiffs that the marks on O.J.'s hands documented the Tuesday after the murders may well have been caused by fingernail gouges, the kind of thing, let's say, murder victims might inflict on their killer. "Then and now," Baden says flatly, "it was my opinion that [these wounds] couldn't have been caused by a fingernail." He believes the most prominent wound on O.J.'s left hand was caused by glass, an opinion he reached after consulting with Lee. (Lee floats above this section of the trial as persistently as Mark Fuhrman; in the defense's stagecraft, the two are the spirits, respectively, of detection and deception.)
       Baden says it's likely there were two perps at Bundy, "because it's very difficult for a single perpetrator to control two victims in a public place. It's not possible reliably to prevent people from crying, screaming, or escaping." Many of the findings of the coroner's examination of the wounds are "consistent with more than one weapon. Could be one, could be more than one, obviously."
       The battle of the pathologists also centers on which wounds were fatal to the victims and what kind of bleeding the wounds caused. Baden's scenario has Goldman being killed by an injury to the internal jugular vein, which bleeds "profusely but slowly." To account for the bloodstains on Goldman's shirt and jeans, and for the blood collected in and on his shoes, Baden postulates a long struggle, during which Goldman was vertical for a considerable time. The crux of Baden's testimony is that the struggle would have been too long and bloody--on the assailant(s) as well as on the victims--for O.J. to have committed the murders and been presentable to limousine driver Alan Park at Rockingham just before 11 p.m.
       You couldn't, if you were the defense, have asked more from Dr. Michael Baden. Well, you could have asked one thing more: You could have asked him not to go on television and discuss this case. In the opening of his cross-examination, Medvene asks the witness if he'd been on Geraldo to critique Spitz's testimony. Baden answers in a prickly negative, but it soon becomes apparent he's splitting heavily sprayed hairs; he appeared, he agrees, on Rivera Live, the host's nighttime cable show. Tuesday morning, the reason for Medvene's interest--and Baden's reluctance--becomes obvious. What's also apparent is that Medvene, normally tentative and diffident, has for this day become focused--almost feral--in his questioning. He has taken his difficult instrument, a voice which allows for virtually no inflection, and turned it into a credible weapon.
       "Now, you've now told us under oath [Goldman] is standing [for] maybe two or three minutes before he's on the ground. Did you tell--in this TV program you went on a month ago, Mr. Rivera and the national TV audience, at that time--[that] we had him up at least five or 10 minutes? Did you tell whoever you were telling on TV that? 'Yes' or 'no,' just 'yes' or 'no,' sir. Did you say that on TV?"
       "I didn't say what you said I said."
       "Did you say, sir: 'What I'm saying is that ... for the blood to flow from the neck down to the shoe, bleeding from the jugular vein, would have taken at least five or 10 minutes; he was standing for that period of time'? I could play it for you, sir. Did you say that?"
       "You can play it."
       "Did you say it, 'yes' or 'no,' sir, just tell me 'yes' or 'no.' "
       "I'd have to get it in the context."
       "Whatever context it is?"
       "My opinion--you're asking my opinion?"
       "No, no, no, sir. You're a pro. I'm asking you, did you say it on national television on Nov. 11 on the Rivera show? That's what I'm asking you. Did you or didn't you?"
       "I don't answer it that way. What I should have said [is that he] would have been--could have been--could have been standing five or 10 minutes."
       "Sir, I didn't ask you what you should have said, what you could have said. I know we're now [at] two or three minutes?"
       "No, no, he's alive when he collapses."
       "Did you say that, or do you want us to play it?"
       "You do what you want. I don't ... "
       "OK."
       There follows a 10-minute sequence straight from Audio-Visual Hell. The kids who couldn't run the projector in high school have grown up to be the guys who can't cue up the videotape in court, even though it has time-code numbers supered on the screen. Fujisaki, the fuse always burning dangerously low, comes close to throwing the tape out, since prohibited bits, like Chris Darden opining on the same broadcast, keep seeping through to jurors. Finally, though, the proper spot is found. Baden tells Geraldo that Goldman would "have to have been standing" for five to 10 minutes to account for the bloodstains on his clothing.
       "Now, does that refresh you that he was--that you said he was--standing for that period, contrary to what you told this jury under oath a couple minutes ago, that we have him down in two minutes or three minutes on the ground? Does that refresh you, sir; 'yes' or 'no'?"
       "Yes."
       "Thank you."
       Medvene, with the aid of Geraldo, has sliced Baden's time-line-unfriendly struggle by two-thirds. Here's the cute part: The pathologist didn't even think he was going on the broadcast to talk about the Simpson case. He had agreed to appear, he tells Blasier on redirect, only for the purpose of "promoting a special HBO program on autopsies." Damn, that clinches it: I'm getting cable. Two reporters who sit behind me, old trial hands from last year, had just yesterday been revisiting their respective decisions to stay off Rivera Live. Today they look like geniuses.
       In less than an hour, Medvene gets Baden to agree that the evidence and autopsy photos he examined at the coroner's office are consistent with one assailant, that the wounds are consistent with one weapon, and that the perpetrator need not have suffered any injuries in the perpetration. He gets the witness to change his tone of voice and his body language, from authoritative to musing. They argue over how much bleeding should have occurred in the peritoneal and retro-peritoneal space of Goldman's torso. A sane juror might look at the battle of the pathologists, Baden vs. Spitz, the matter-of-fact New Yorker against the didactic Teuton, and call it a wash.
       Except that Baden commits an unforced error. Medvene is still pushing the limits of his unemotional persona with an intensely urgent round of questioning (startling, even, in the disappearance of his trademark quirk: starting a question, pausing, uttering, "Strike that," and starting over). The plaintiffs' lawyer is trying to push Baden back from his flat assertion that the injuries on Simpson's hands are not fingernail marks. So, maybe nobody's eye is on the ball when Medvene asks:
       "You didn't ask Mr. Simpson where he got those wounds, did you?"
       "I did. I did ask him ... When I asked him about the cut wounds that--the wounds that broke the skin, this, this, and the others, the other two I think, he indicated to me he didn't know where he had gotten them, but he had gotten blood on his hand after rummaging through his car, looking for the cell phone and while at his house. He noticed blood, but he didn't quite know how that happened. Because he often cut himself. And he does have a lot of scars on him."
       Medvene even allows himself an uncharacteristic blurt of sarcasm.
       "You're not an advocate--"
       "I'm sorry?"
       "Now, Mr. Simpson got these wounds, he told you, at his house the night of the murders and--somehow, rummaging in his car, with his car phone. Now, Dr. Baden, did you ask him to look at his car phone to see if there were any rough edges, points sticking out, sharp objects that could have cut his hand in those two places? 'Yes' or 'no,' sir?"
       "I didn't say he cut it on the car phone."
       "Sir ... "
       "I did not say he--that he told me he--didn't tell me he cut it on the car phone. He cut himself, and I'm stating that he told me he had--he saw blood on his hands, and he had somehow cut himself while in the house and rummaging around. He didn't tell me that these were those cuts. I misstated that. He said somehow he cut himself; he didn't know where. He saw blood. He had rummaged for his car phone, and that there was--it was dark. The light was out. And he thought he might have cut himself there or someplace else. I don't know which--there were four different cuts, these two and two others. He didn't specify to me which--what occurred at the time. I'm saying something happened, according to what he told me."
       "So that I have it correctly--and I apologize--"
       "I'm sorry."
       "That's OK. So that I have it correctly, he was--I don't want to misstate this. Are you saying he was rummaging around in his house in the dark in--with the car phone?"
       "No. What I recollect in my discussion with him on that day, he said he was rummaging around in the car in the dark. He went out to the car to get--he was looking for his car phone, and he was rummaging around. He then was in the house. And at some point, he noticed blood on his left hand--and he doesn't know what happened when."
       "Just somehow started bleeding; that's the best--"
       "He noted--he noted blood on his hand."
       Every time Baden repeats the words "car phone" in that sequence he puts a good ding in the chassis of the defendant's credibility. For O.J. had insisted on the stand that his tape-recorded statement to the police, in which he said he went out to the Bronco to get "the car phone and everything," did not mean what it said, that he had retrieved the phone earlier in the evening (so as to place the documented cell-phone call to Paula Barbieri at 10:03 p.m. from his driveway, not from the car, speeding off somewhere), and was actually in the rushing-and-rummaging (-and bleeding) mode later, when he went to retrieve the package of cell-phone accessories from the Bronco. Because of how crucial it was in getting the defendant out of the Bronco at a time when someone was driving some vehicle to Bundy, the distinction between the cell phone and its accessories became key during Simpson's testimony. Now, here is his expert witness, volunteering more than once a version of those events that validates the police-interview tape, that renders O.J.'s correction--as they used to say in Washington--"inoperative."
       Blasier, on redirect, asks Baden whether he's aware that at the moment, his client has no funds. The question does not fly, but it may suggest the defense-table opinion, at this moment, of the pathologist's value to their cause. Simpson's pennilessness might also be an interesting fact to have brought to the attention of the custody judge.

Harry Shearer is a writer, actor, and director who has met both Kato Kaelin and Heidi Fleiss.