Jeffrey Toobin - The Run of His Life - The People v. O. J. Simpson

Once again, the prosecution’s distress overshadowed some highly incriminating evidence that came next. William Bodziak was the anti-Fung-the unassailable government forensic expert. He had devoted more than twenty years to the study of foot and shoe impressions, and he conducted a remarkably detailed analysis of the prints leading away from the murder scene to the side of Nicole Brown Simpson’s house. Bodziak said the shoe prints had been made by a size-twelve Bruno Magli shoe known both as the Lyon and the Lorenzo-a model that retailed for about $160. Based on the lengths of the strides and the size of the shoes, Bodziak said the individual who made the impressions was probably a little more than six feet tall. (Simpson stood six foot two inches, and, like only 9 percent of the population, wore a size-twelve shoe.) What was more, Bodziak found a slight impression of this Bruno Magli type of shoe on the rug of Simpson’s Bronco, the presumed getaway vehicle. And perhaps most important of all, Bodziak’s analysis of the crime scene photographs showed only one set of shoe prints at the scene-the most compelling evidence that there had been just one killer.

Finally, in the grisly if speculative conclusion of his testimony, Bodziak said that impressions on Nicole’s back and on her dress were also consistent with the size-twelve Bruno Maglis. In other words, completing the picture from Lakshmanan’s testimony, Bodziak suggested that Simpson had planted his foot on the unconcious Nicole’s back, grabbed her hair with his left hand, and cut her throat with his right-an image of startling savagery.

Bodziak testified on Monday, June 19, and F. Lee Bailey had spent the previous weekend conducting, with characteristic gusto, a week-late celebration of his sixty-second birthday. In a bizarre and rambling cross-examination, Bailey actually suggested that two murderers might have conspired to wear the same shoes to throw off the police:

“Would it be possible for two people to arrange, knowing that footwear-particularly if you’re in the business of crime-can be almost as dangerous as a fingerprint, would it be possible for two people to arrange to arrive at a crime scene in the same footwear, make and model?”

An incredulous Bodziak told him, “I don’t believe, in my opinion, that that could possibly happen.”

Pursuing this novel theory, Bailey first called Bodziak by the wrong name, then asked, “Do you think these fellows chat together at all once they get in the hoosegow?”

“I’m sure they do.”

“And most of them are acutely aware of the mistakes they made?…”

“Yes.”

Bailey went on, “Professional assassins frequently do not get caught, true?”

Hank Goldberg objected to this odd query, and Bailey staggered to another subject. During the break, Cochran followed Bailey into the lockup with Simpson and told his colleague to pull himself together. “Stay on point,” Cochran scolded. “You’re trying to show how smart you are, and all you’re doing is showing how smart he is.”

Later that day, Simpson himself was angry at Bailey’s rambling about the “hoosegow” and other irrelevancies. Simpson never made up his mind about Bailey; he admired his roguish aggressiveness but feared his personal instability. “That’s it,” O.J. said after court on this June day. “I don’t want to see him in court again. The man will do no more witnesses.”

After her nearly three months without examining a witness, Marcia Clark returned to the trial nearly incoherent with indignation at the defense’s racial appeals but at a loss for an effective response. When Dershowitz made a formal motion charging the prosecution with “targeting” certain black jurors for removal-a rather frivolous claim, to be sure-Clark replied with a bona fide courtroom rant. “Of all the motions made by the defense, I find this one the most offensive, groundless, and baseless,” she said, by way of introduction. “This was a motion filed deliberately for inflammatory effect. It has no law in its support. It has no facts in its support. This is a scurrilous attempt to inflame the community, if not the very jury itself. It may be constitutionally protected speech, Your Honor, but constitutionally protected does not mean moral, does not mean ethical, and does not mean truthful. And the groundless, baseless, inflammatory allegations contained in this motion are the lowest tactics I have seen yet in this case.” Ito rejected the defense motion, but it wasn’t hard to catch the edge of desperation in Clark. (These tirades contributed to the impression that Clark had a larger role in the trial than she actually did. Her denunciations of the defense team made good television, and they often served as the trial’s nightly sound bite even when Clark was not examining any witnesses.)

The prosecution never really rallied after the glove incident. Shortly after Bodziak completed his testimony, Peter Neufeld showed that a prosecution DNA expert witness named Bruce Weir had made errors in calculating some of the odds of the genetic matches in the case. The changes themselves did not amount to much, but they further damaged the air of incontrovertibility with which the prosecution had attempted to surround the DNA evidence. Clark had just one more important witness to present to the jury, Douglas Deedrick, an FBI hair-and-fiber expert, and that experience, too, began with a prosecution botch.

Though Clark had had nearly three months to prepare Deedrick’s testimony, she did not turn over to the defense all the photographs Deedrick would be relying on until the night before he took the stand. Not surprisingly, and with some justification, the defense complained to Ito about being sandbagged by this late disclosure. When Ito gave the defense lawyers an extra night to examine the photographs and interview Deedrick, they found something else that the prosecution appeared to have withheld-an extensive written report on the evidence by Deedrick. (Clark said she had never seen the report.) Again, as Simpson’s lawyers were only too willing to point out, the prosecutors had committed the kind of lapse in discovery for which they had so often denounced the defense. “This is more than a mistake,” Cochran said. “This was calculated… This egregious violation comes as our jury waits, as the [prosecution] case whimpers to a conclusion.”

As a sanction against the prosecution, the defense asked the judge to exclude Deedrick’s entire testimony-or at least a good part of it-and Clark nearly wept with frustration as she pleaded with Ito to let her proceed. “To preclude evidence that is important to the proof of the elements of the crime would unfairly punish not just the victims but the people of the state of California-and, I do point out to the Court, the families of Ronald Goldman and Nicole Brown Simpson,” Clark told the judge. “If the Court feels that we have been remiss, then I would urge the Court to penalize us personally, or myself personally. But please don’t-please don’t penalize the proof of the case.”

This speech by Clark-in particular the way she played the “victim card”-represented a considerable gamble. Many judges would have taken offense at Clark’s attempt to make Ito feel guilty about hurting the prosecution’s case. A crueler jurist than Lance Ito would have invited Marcia Clark to explain to the victims’ families herself why her own mistakes (not the judge’s) had jeopardized the case against O.J. Simpson. But Ito, placid to a fault, let Clark go without the reprimand she deserved. He also steered a middle ground in his ruling, one consistent with his truth-school inclinations. He allowed Deedrick to give the bulk of his testimony but precluded him from discussing some of the matters that had been mentioned in his belatedly discovered report.