THE SIMPSON TRIAL : When You Can’t See the Forest for the Leaf

Judge Lance A. Ito has determined that former Det. Mark Fuhrman’s tidal wave of racism and bigotry may be presented to the jury in the O.J. Simpson double-murder trial in two relatively insignificant droplets--one voiced, the other transcribed. Fuhrman’s taped boasts of brutality, planting or manufacturing evidence and targeting minorities for abuse will not be heard because the judge has determined that their prejudicial effect on the jury far outweighs the probative value of their admissibility. Under Evidence Code Section 352, such decisions are left to the “sound discretion” of the trial judge.

Ito has chosen the sound of silence.

Police malfeasance, incompetence, racism and an alleged conspiracy of silence is at the heart of the Simpson defense case. When the existence and contents of the Fuhrman tapes became known, defense attorney Johnnie L. Cochran Jr. seemed on the brink of realizing his ambition--putting the Los Angeles Police Department on trial. In effect, he had a taped confession from Fuhrman.

It was a development with ominous implications for the prosecution. Indeed, at one point last week, the mood in the district attorney’s office could be characterized as divided: Part of the office sensed an impending Dunkirk; another part recognized a just-occurred Dresden. Ito’s ruling changed all that.

Ito contended that the Simpson defense team insufficiently showed that Fuhrman may have planted the bloody glove found on the grounds of Simpson’s home. Accordingly, the judge says there is no factual support to admit those tapes on which Fuhrman admits regularly planting evidence, or lying in his reports, or requiring no “probable cause” to arrest African Americans, because on the street, he was a “god.”

Law students are taught they must look at both the forest and the trees, the big picture and the specifics. In justifying his decision, Ito’s analysis demonstrates him to be a “leaf” man.

Circumstantial evidence may be good enough to prove someone murdered two people, but it apparently is not good enough to prove that evidence may have been tampered with. Consider what the defense has already proved:

* There is no other forensic evidence where the bloody glove was found--no blood, no footprints in the soft soil of the yard, no fibers on the fence or stucco wall, nothing on the leaves.

* The glove’s location does not match the location or direction of the blood drops found elsewhere at Simpson’s home.

* Of the bloody socks found in Simpson’s bedroom, Nicole Brown’s blood contained a preservative, EDTA, commonly added to blood samples drawn by investigators. Inference: The blood was not there originally.

* The police videographer did not see the socks when in the room.

* Blood drops appear, disappear and then reappear on or in Simpson’s Bronco.

* Bloodstains found on the gate behind Nicole Brown’s condo contain EDTA.

* The blood drops are not on the condo gate on June 13, the day of the murders, according to the LAPD’s own photography, but the stains appear July 3, when detectives conduct a follow-up investigation. For some reason, the “new stains” contain more of Simpson’s DNA than the samples taken immediately after the victims were found, despite environmental conditions that should cause deterioration of the DNA.

* Criminalist Collin Yamauchi concedes he had handled a test tube of Simpson’s blood at about the same time he had examined the bloodstained glove. He did not change rubber gloves before going from Simpson’s blood sample to the glove inspection, raising the question of whether the blood came from Simpson or the criminalists.

* There’s not enough blood, hair and fiber in Simpson’s Bronco to be consistent with Simpson driving away from a crime scene that was essentially a blood bath. Based on the scant physical evidence inside the Bronco, Simpson would need to have left the crime scene almost naked, wearing only socks and one glove, which he would then drop while hopping the fence, according to the prosecution’s theory.

Adding fuel to support the defense’s police conspiracy are other hard questions. According to the prosecution, this was a meticulously planned killing by an obsessive husband in a compulsive approach-avoidance relationship with his ex-wife. So:

* Where are Simpson’s bloody clothes?

Both Nicole Brown and Ronald Goldman bled profusely. On that question, the consensus is that defense pathologist Dr. Michael Baden is right, and the coroner, Dr. Lakshmanan Sathyavagiswaran, is in error. During the struggle with his murderer, Goldman lost an enormous amount of blood. A great deal of it should have fallen on his assailant. The police inspected every garbage can and dumpster for blocks around Nicole Brown’s condominium and Simpson’s mansion. No bloody clothes were found.

* Where is Simpson’s famous cut?

The passenger sitting next to Simpson on the plane to Chicago looked at the former football star’s hands searching for a Super Bowl ring. (Obviously a man who had not followed the exploits of Simpson’s Buffalo Bills). He did not see a cut. The plane’s pilot emerged from the cockpit to ask for Simpson’s autograph. He saw Simpson’s hands. He did not see a cut. If Simpson was the killer, how did he get cut? There is no flesh or clothing fibers under the nails of either victim. There are no marks on Simpson of any blows, and the small lacerations on the outside of Simpson’s wrist could not have bled sufficiently to leave the DNA samples.

* What about the blood in the Bronco?

Blood samples from Nicole Brown and Goldman were both recovered from Simpson’s Bronco. Pretty damning stuff. Except the fired employee at Viertel’s Towing, who stole some items from the car’s interior, says he looked at the upholstery and rug carefully and saw no blood stains. Any why was the Bronco not towed to Parker Center or Piper Technical Center, where the LAPD’s Scientific Investigation Division has garages to examine suspect vehicles? Strange.

Almost as strange was Det. Philip L. Vannatter, who has done homicides way too long to mess up, carrying around a vial of Simpson’s blood a day after the homicides.

* What about Vannatter’s veracity?

On Sept. 21, 1994, Ito chastised Vannatter, lead detective from the Robbery-Homicide Division, for “reckless” factual misrepresentations that he wrote in his search-warrant affidavit for Simpson’s house. In addition, during Vannatter’s cross-examination before the jury last March 21, defense attorney Robert L. Shapiro kept reminding him that he had made intentional or reckless comments to a judge under penalty of perjury to obtain the warrant--a fact that Vannatter was forced to admit. And, of course, criminalist Dennis Fung was compelled to admit to perjury in testifying before the grand jury.

One theory behind Ito’s decision to publicly air the Fuhrman tapes is that the judge wanted to get even for whatever slur Fuhrman leveled against his wife, the highest-ranking woman in the LAPD. For the trial, however, he has, by virtue of his ruling, kept highly probative evidence from those who need the information most--the jury. It seems we have heard a variation on this exchange in another context.

Cochran: “I want the truth!”

Ito: “They can’t handle the truth.”