winners || daniel m. petrocelli: reflections on the o.j. simpson case

Daniel M. Petrocelli: Reflections on the O.J. Simpson CaseAuthor(s): Jeffrey ColeSource: Litigation, Vol. 23, No. 3, WINNERS (Spring 1997), pp. 6-13Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759918 .

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Daniel M. Petrocelli:

Reflections on the

O.J. Simpson Case

by Jeffrey Cole America has had its share of lurid and sensational criminal cases: Sacco and Vanzetti, the Rosenberg spy case, and the

Alger Hiss perjury trial. All, in their time, fascinated the

country and aroused emotions that seemed would never be stilled. A few periodically emerge from the mists of the past and present their title deeds to a new generation for its ver? dict. Yet no criminal case has so captured the attention of the nation or been so bitterly divisive as the trial of O.J. Simp? son. Opinions on guilt or innocence were, and continue to be, polarized along ethnic lines, with each side certain of the

right and wisdom of its position. Then came the civil case with a new cast of lawyers, a new

burden of proof, radically different discovery rules, a new

judge who, unlike Judge Ito, removed race from the case and television from the courtroom. And, perhaps, most signifi? cantly, a new judge who allowed the plaintiffs' to depose Simpson and call him as a witness at trial. The rest is history.

Few are as qualified to discuss the case and its ultimate

legacy as Daniel Petrocelli, the attorney for Fred Goldman, the father of Ron Goldman. Given his unique vantage point,

Mr. Petrocelli's observations are indispensable to a compre? hensive understanding of the Simpson case and of the extra?

ordinary preparation that preceded the actual trial. Begin? ning with his first meeting with Mr. Goldman, Mr. Petrocelli

candidly reflects on: the laborious task of collecting and

assimilating not only the evidence from the criminal case, but in developing substantial additional evidence; the con? tentious discovery disputes; the painstaking and persistent use of traditional discovery devices, which in the end, was to

prove so significant; the selection of the jury; the punctilious pretrial preparation and strategizing; the chance discovery of the 30 devastating pictures of the Bruno Magli shoes; the

defense's trial strategies that harmed rather than helped Simpson by allowing the plaintiffs to introduce damning evi? dence against Simpson that otherwise would not have been admissible; the use as witnesses of Simpson 's friends who

Jeffrey Cole is with Cole & Staes, Ltd. in Chicago and is an Associate Editor of Litigation.

provided significant evidence for the plaintiffs; and the

plaintiffs' extensive use of demonstrative evidence. Andy of course, there is the cross-examination of Simpson

himself which was the defining moment in the case and which, perhaps more than any other single factor, has helped to shape perceptions about Simpson's role in the deaths of Ron Goldman and Nicole Brown Simpson. Finally, Mr. Petrocelli's insights on the ultimate legacy of the case and its

effect on race relations in this country are valuable additions to a debate that has yet to wane.

Editor's Note: Part II of this interview will be published in the Summer 1997 issue of Litigation.

Q: How did Fred Goldman happen to select you to

represent him in the O.J. Simpson civil case?

A: After the criminal verdict, several of my clients called me expressing outrage over the verdict. They were very upset as were a great number of people in this country. And one of them took it upon himself to call up Fred Goldman, who was looking for counsel. In fact, all the civil suits had already been brought during the criminal case before the statute of limita? tion ran out, but the civil suits had been stayed pend? ing the outcome of the criminal case. After I met with Fred and his family, he decided to retain me and my law firm, Mitchell, Silberberg & Knupp, to represent him. The first thing I did was to ask my partners, Edward Medvene, Thomas Lambert, and Peter Gel blum to work with me on the trial team.

Q: How did Bob Baker become Simpson's lawyer? A; When the criminal case concluded, Johnnie Cochran

withdrew from the civil case and was replaced by Bob Baker, whom Cochran recommended.

Q: Was there insurance involved in this case?

A: Yes, it turned out that Simpson had some kind of insurance policy that ended up paying about 1.7

million dollars, according to defense records pro? duced in the lawsuit.

Litigation Spring 1997 Volume 23 Number 3



Q: You have participated in probably the most cele? brated case in the history of the country. What is it about this case that has so captured the attention, not only of the people of our country, but large seg? ments of the world as well?

A: That is a really provocative question, and I have

thought about that long and hard.

Q: I assume you have.

A: And I don't know that there is an answer. There are so many reasons why people became and remained interested in this case. In the first place, you had a

world-famous celebrity accused of murder.

The Race Issue Q: But that gets old relatively quickly. A: Murdering his ex-wife, the mother of his children,

and another man, and you had elements of celebrity, fame, money, race, mystery. It was all there. When

you think about it, O.J. Simpson might be the most famous man ever tried for murder. And this man of all people?he was a man universally liked by everybody. It would be like Paul Newman or

Michael Jordan being accused of such a thing. Nobody could imagine that this guy could have been responsible for such horrendous acts. That was what initially, I think, captivated the country. But from there the basic elements of the case

exploded onto the national and international stage, with certain issues, such as the race issue, taking center stage.

Q: When did that start? A: That started at some point early on in the criminal

case and you hear some people say Robert Shapiro started it. Other people say Gil Garcetti started it. Other people say Johnnie Cochran started it. Who? ever started it, it was clear that race became a cen? tral issue, not in my view a bona fide legal issue, but it became a central social issue and structural issue in the criminal trial that elevated the case to a whole new level and brought out a whole new dimension.

Ultimately, the case became a focal point for this

country to have a dialogue about race.

Q: Has there been a dialogue or merely a lot of contro?

versy about the outcome of the two cases, with

positions being along racial lines? A: There's been a tremendous amount of dialogue

about the issue of race. One positive benefit of the issue being played out in the criminal trial is that it has opened people's eyes to the undebatable fact that black Americans in this country have had a

very different life experience with law enforcement than white Americans, and consequently?and understandably?view issues in regard to law enforcement through a completely different prism. That is a healthy development. On the other hand, there were a number of developments, circum? stances, and events in regard to race that, in my view, were not healthy, because for the most part I think that race was exploited to get a guilty man off.

Q: Had that not happened, do you think the result would have been different?

A: According to some of the criminal trial jurors who have spoken out, the result would not have been dif? ferent. But we'll never know, and that is one of the unfortunate legacies of the criminal case.

Q: Are you saying that it wouldn't have mattered whether Simpson were married to a black woman and Ron Goldman had been black?

A: The fact that the victims were white only fed the racial issue more and made it more highly charged than it would have been. But once the judge permit? ted race to enter the case, it was bound to play a dominant role, particularly given what ultimately happened in regard to Mark Fuhrman and the tapes and how all that ultimately played out.

Q: It almost doesn't seem to matter what the objective evidence is. For example, the pictures of the shoes that he was wearing. There are vast numbers of peo? ple who, despite the physical evidence and Simp? son's demonstrable lies, will never believe that

Simpson is guilty. Why? A: I'm not sure that is true in view of what transpired

in the civil trial. But during the criminal trial, many people felt compelled to choose sides along racial lines due to the way race was exploited by the defense with the permission of the judge, with the

proceedings telecast to the world. People's racial

prides and passions on both sides were fueled, and the effect was to galvanize views along racial lines and direct attention to the racial issue and away from the evidence issue. Now, in the civil case, race was correctly prohibited from entering the case. It was not legally relevant to any issue. There was no evidence of any bias or racial motive, for example, on the part of any members of law enforcement who

investigated this case. Mark Fuhrman might have held such a bias, but he was unavailable as a live witness in our case. Nor could his criminal trial tes?

timony be permitted under the rules of evidence. So his testimony was never received, and his biases were not relevant.

Q: Even though Fuhrman "found" several critical

pieces of evidence that were introduced?




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A: When you say "found ," Fuhrman was the first officer to see the glove Simpson dropped behind his house on Rockingham. It was picked up and collected by others. That's the most significant piece of evidence Fuhrman found. All the evidence at the murder scene at 875 S. Bundy was found by other officers while Fuhrman, Vanatter, and Lange were in bed.

By the time they got to Bundy, all the crucial evi? dence at Bundy had already been discovered and seen by 15 to 20 people, the victims' bodies, Simp? son's glove, his hat, the blood drops, the bloody shoe prints, and the blood on the back gate.

Q: Did those 15 or 20 people testify in the criminal case about the underlying facts to prove Fuhrman, regardless of what he said on the tapes, could not have done what he was being accused of?

A: A number of them did. Now I don't want to talk too much about the criminal case because I was not involved in it, I didn't follow it closely, and I cannot

represent to you exactly what all the evidence was in that case or how it was presented.

Q: Did you read the trial transcript? A: I made a decision not to read the entire transcript

because it was over 50,000 pages long, which would have required an enormous amount of time to read and because thousands and thousands of pages were not pertinent to our case. So, I read what I thought was important, particularly in the areas for which I was directly responsible. The other lawyers on our team took similar responsibility for their areas.

Q: Tell us about the team. Who was on it and what were their roles?

The Trial Team A: I asked my partner, Ed Medvene, who is a veteran

trial lawyer, former Assistant U.S. Attorney and has a very prominent white-collar criminal defense

practice, to come on the case and handle a large part of the police and forensic areas, and he agreed to do so. I asked my partner, Tom Lambert, who is one of the smartest lawyers and quickest studies I've ever

known, to tackle the complex DNA and biological evidence, about which none of us knew anything. And then I asked my partner, Peter Gelblum to help me with the domestic violence, motive, and time

line areas, and to assist in all the legal briefing and

writing. Ultimately, Peter took control of the behav? ioral scientists we intended to call, but at trial the

judge ruled that we could not call them as witnesses in our case. We had two experts who were going to

testify about Simpson's demeanor, Simpson's motive, and the nature of the killings, but the judge concluded that...

Q: There was no expert needed?

A: In these areas, he said no expert was needed, that the jury can decide these things on their own. Peter then had to shift gears, and took over the photo? graphic evidence which, of course, became a cru? cial part of the trial. He also worked very, very closely with me in putting together Simpson's cross-examination. I took control of the motive part of the case, the time-line evidence, Simpson's examination, and coordinated with the others on their witnesses. Tom Lambert and I took responsi? bility for jury selection, and I took responsibility for

opening statement and closing argument. But from

day one, all of us on the team agreed that we would

try this case together as a team, and I'm very proud to say that we were able to stick to that. From the

beginning of the process to the very end, we pre? sented this case, we developed this, we tried this, and we won this, as a team. We had five lawyers in the courtroom and several lawyers working here at the office.

Q: How did you go about the enormous task of physi? cally getting together the materials for your case?

A: Initially, that was the biggest problem we faced. And by the way, just to complete the thought, in addition to the partners on the team, I also asked a number of associates, Yvette Molinaro, who was one of our trial attorneys, Jeff Goldman, Matt Railo, and Michael Tsao, to join the team. And Steve Fos? ter, who put off going to law school for a year to be

part of the team, was extraordinary as our team

paralegal.

Q: Were the D.A.'s office and the L.A.P.D.'s office

cooperative? A: Yes. They were very cooperative in obeying our

subpoenas. And remember the defense already had all this material. Simpson's civil defense team con




sisted in great part of members from the criminal defense team.

Q: I don't think many people know that. A: We had an appearance in the case by Gerald

Uhlman. Peter Neufeld appeared on the pleadings. I believe Alan Dershowitz may have been con? sulted, and at one point Mr. Baker said that Barry Scheck would be coming in to handle Dr. Henry Lee's examination, though he never did. Bob Blaiser had been in since day one. Lee Bailey's firm had been in since day one, although Bailey ended up never appearing in court. His partner, Dan Leonard, was there every step of the way. I was told Johnnie Cochran was consulted behind the scenes. Bob Baker's firm was really the only new addition. So the whole team had everything having, already been through the criminal trial.

Q: Perfect continuity. A: There was absolute continuity, and our big problem

was getting up to speed so that we would be on a level playing field. So our first and biggest problem in the case was to learn what lawyers who had just lived through the case for close to two years?and

won?already knew.

Q: What did you do?

A: We subpoenaed everybody. We subpoenaed the D.A.'s office, the coroner's, the L.A.P.D., even the

court. And people cooperated. It took an amazing amount of manpower, time, effort, Xerox compa? nies, duplicating machines to copy audio tapes and video tapes, and so forth. We had to go through the bureaucratic procedure of getting permission to see all the criminal trial exhibits, which were stored in a small, dingy room in the bowels of the criminal court building. We contacted the experts who were used in the criminal case by the prosecution to see if we would use them for the civil case. We had a

big decision to make in that regard because some

experts were essential for continuity, and in fact, indispensable, because they had already done the

analysis, for example, of the DNA and the blood and you can't go and test it again. So we had to use a lot of the same experts, but in other areas we did not want to use the same experts.

Q: Why not? A: We wanted to give the case a new look. We didn't

want it to simply be a replay of the criminal trial. This was a different case, and we wanted to treat it as a different case, and we certainly wanted a dif? ferent result. We wanted to make sure we had inde?

pendently analyzed everything to see what would and would not work in this case. We had many, many new factors at play in this case, not the least of which was the anticipated testimony of O.J.

Simpson. So we had to anticipate and get prepared for how we would make this case come out differ?

ently than the criminal case. And we also had at our

disposal the extensive pretrial discovery process, which did not exist in the criminal system.

Q: What did you do? A: One of the first things that we realized after starting

to collect and review all this massive amount of material is that many of the interviews conducted in the criminal case were not complete. So we decided that witnesses needed to be interviewed in greater depth, and many of them would have to be subject to depositions, particularly, as it turned out, in the area of motive. Much of the physical evidence was fixed; there wasn't much we could do about getting new physical evidence. If it was collected, it was collected. If it wasn't collected, there's nothing we could do about it now. If there was a bloody finger? print, as Mark Fuhrman now says, well, that's inter?

esting, but what can we do about that now. So for the most part, the physical evidence was frozen and

we had to live with that. And motive, just to finish my thought, this is an area where a great deal more

discovery could be done. And by motive what I

really mean to say is exploring the relationship between Simpson and Nicole to see what was hap? pening between them and what triggered Simpson to kill Nicole. We know Ron was killed because he was simply at the wrong place at the wrong time.

Q: What made you think there was more to the ques? tion of motive than the state had learned through its

investigation? A: For one reason, when we reviewed the voluminous

materials, the interviews did not answer all the

questions we had. We also learned that a number of

people had not been interviewed. The state did not have the ability to take O J. Simpson's deposition as we did?the only living person to the relationship between him and Nicole. Simpson knew everything there was to know. How much he would tell us is another thing. But we knew he knew everything. So after we took his deposition, we knew we could go out and do a lot more follow-up investigation and

try to put the whole story together. What became

O.J. knew everything. After his deposition we could do more

follow-up investigation.

especially clear to me, once I learned the case, is that the prosecution was never really able to come

up with a good explanation for what happened in the last months, weeks, and days of Nicole's life and Simpson's?what happened in the relationship between them. We needed to learn and tell that

story, because people don't die out of the clear blue. This was not a drive-by shooting or a case of ran? dom violence. This was a killing motivated by something that happened between Simpson and

Nicole, and that something had not been fully answered in the criminal case. The prosecutors did a good job of showing that Simpson had a propen? sity for violence in his relationship with Nicole and




was violent towards her at various times throughout his relationship. But what they didn't show is what

happened at the end.

Q: Well let me ask you, somewhat out of order, what did happen?

A: What happened is not an easy question to answer with a few words, but following a 17-year yo-yo-like relationship, on/off, back and forth, Nicole broke off the relationship for the final time about a month or so before her murder, and this time she meant it. That

began a series of attempts by Simpson to get Nicole to change her mind, and when she would not, he then retaliated. And there was all kinds of evidence in the last few weeks of things going on between Nicole and Simpson to show that they were at war with one another: vicious arguments, harsh letters, diary entries by Nicole, statements both people made to friends, all the tell-tale signs that the relationship was

spiraling to a tragic end. What we also learned is that, in addition to the

problems Simpson had with Nicole, when he tried to resume a relationship with Paula Barbieri, a

woman he had previously been involved with, but left, for Nicole, that didn't work out either. On the

day of the murders, as it turned out, we learned that Paula dumped Simpson with a message on his voice mail early that morning. So all of this came to a head on the 12th of June. There's much more detail, there's a great deal more texture to this, which I

really don't have the time to get into now, but suf? fice it to say we were able to show that this was a

relationship with a history of being volatile and vio? lent. We showed that both sides pressed each other's buttons. It was not one way. It was a rela?

tionship where both Nicole and Simpson couldn't

get along and couldn't live with each other, and couldn't live without each other. But it was Simp? son who would get violent, who couldn't control himself when pushed beyond a certain point. And on the night of June 12, he snapped. Now, having said all that, the motive area was still the most dif? ficult area for us because Nicole was not around to tell us her side of the story and fill in the missing details. Simpson put his spin on everything, and there's just so much you can do to reconstruct what

happened between two people when one is dead and the other one is lying. Plus, we were severely constrained by hearsay laws.

Q: How did you get the diary entries in?

A: Through the state-of-mind exception. But I'll get to that in a second. One thing we did do though, is we went to Simpson's friends more so than Nicole's, people who were close to Simpson, including some members of his inner circle. I spent a lot of time try? ing to meet these people, get to know them, earn their trust and confidence. Ultimately, when they saw what was the right thing to do, they spoke and

provided significant evidence to us, and we called some of these witnesses to testify. We relied princi? pally on people who were close to O.J. Simpson, including his best friend, Al Cowlings.

Q: In light of that relationship and Cowlings's invoca

tion of the Fifth Amendment in the criminal case, how did you get Cowlings to testify in the civil case?

A: And here he also took the Fifth in regard to his activities with Simpson concerning the Bronco chase and anything, in fact, that happened during that week when Simpson came back from Chicago. But he did testify about earlier incidents in regard to

Simpson's relationship with Nicole. For example, the 1989 beating.

Q: Why did he help you? A: He didn't try to help us, believe me. But in the

course of giving a deposition over a couple of days, he made some statements that were damaging to

Simpson and we used them in court. It was like that for a number of witnesses. No one witness was available to come to the stand and lay it all out. We had bits and pieces here and there. Because we did not have a witness through whom we could tell the

story, we ended up using witnesses essentially as

impeachment witnesses, after Simpson took the stand, to contradict Simpson's lies. One of the sig? nificant decisions we made when we put Simpson on was to take him through his whole relationship with Nicole and the history of it. We decided to elicit his lies and his denials about key facts and events, and then bring in the impeachment wit? nesses one by one, like a parade, to show that Simp? son was lying about everything important. So we told the story of Simpson's relationship through Simpson himself, and then used the impeachment witnesses to show that Simpson was lying about the

important facts, events, and details.

Nicole's State of Mind Q: How did you overcome the bar of the hearsay rule

to some of the evidence?

A: Largely through the state-of-mind exception and by offering the evidence for purposes other than the truth of the matter. We did not, as many pundits believed, urge or rely on new hearsay exceptions. In fact, there was a new bill passed in California that was available to us in this trial, making certain

hearsay entries in diaries admissible under a new

exception for domestic violence threats where the victim is subsequently killed, just like Nicole. But the bill got so watered down by the time it was

passed that we were not able to use it. And we did not use it at all. The judge did not rely on it at all.

What did help us, though, was the defense?partic? ularly in the opening statement?making a big issue of the state of mind of Simpson and the state of mind of Nicole to show that their relationship was normal and Simpson didn't have any reason to be

angry or hostile towards Nicole at the very end. We were able to use the defense arguments to show they had opened the door as to the state of mind of the victim, and that helped to get in some of the

hearsay. And apart from the defense's opening the door, we demonstrated that the issue of Nicole's state of mind was relevant to show her conduct right before the murders. Simpson was portraying a com?

pletely different picture to the jury. He was trying to




say that things were amicable, they were nice towards the children, they were treating each other

with respect, and that there wasn't anything hostile or angry at all between them. In fact, Simpson said that at the recital, just hours before Nicole's murder, he was mouthing loving things to Nicole about their

daughter, Sydney, who was performing on stage.

Q: Weren't the diary entries excluded in the criminal case?

A: Judge Ito ruled that the victim's state of mind was not relevant. But it was relevant, not only because the defense in our case opened the door with their

self-serving portrayals of the relationship, which made our argument a lot easier, but also because we demonstrated that Nicole's state of mind was rele? vant to prove her conduct at the recital?that she was not friendly with Simpson, that she was dis?

tancing herself from him, trying not to be near him, trying to avoid him.

Q: Did you get cautionary instructions from the judge? A: Yes.

Q: Did you ask for them?

A: No. The judge on his own issued them, I believe. The

hearsay that came in that raised the most ruckus, at least in the media, was the testimony of the coun? selor from the domestic violence shelter with whom Nicole had spoken just days before her murder.

Q: And she couldn't identify Nicole, wasn't that it? A: No. There was a lot of evidence that it was Nicole,

a lot of evidence?the eight-year marriage, two small children, the ages of the children, famous ex football player, woman named Nicole, west side of Los Angeles; plus, the witness said she recognized Nicole's voice from hearing subsequently tapes of 911 calls.

Q: So the problem was one of authentication and

hearsay.

A: On that piece of evidence, the judge's cautionary instruction was both on the initial question of

whether it was Nicole, i.e. the foundation issue, and also on the hearsay issue, making clear that it was relevant only to show Nicole's state of mind? whether she had the state of mind of a person who was upset with or feared Simpson.

Q: It strikes me that there is a real lesson to be learned, a lesson which perhaps many lawyers don't know, and that is that opening statements can be the basis for admitting all sorts of testimony which might not otherwise be admissible.

A: The defense opening statement was a gold mine for us. Let me give you another example ...

Q: Before you do, why do you think Baker gave the kind of opening he did?

A: I can't answer that question, I really don't know. But Bob Baker is a very experienced lawyer, and I cannot assume he did anything without knowing exactly what he was doing. Let me give you a good example, the one I was just going to mention?the

polygraph issue. I never would have brought up the

polygraph in this case. Never. I never would have

questioned Simpson about it. But Mr. Baker in his

opening told the jury that the week Simpson was

arrested, he was more than happy to take a poly? graph test, and he offered to take one, but the pros? ecution declined. Well, the clear and only inference, of course, is that Simpson was willing to take a

polygraph test because he would have passed it, because he was innocent. When we heard this argu? ment being made, all of us on the team looked at each other in astonishment, and decided we would set the record straight at the right time, which was when Simpson took the stand.

Q: What did you ask him? A: I asked him about taking a polygraph test, and fail?

ing it. And he denied it all. There was a big argu? ment at side bar, and I had the transcript of the

opening statement ready, and I showed it to the

judge, and argued that the defense could not tell the

jury one thing and then prevent us from disputing it.

Q: What did Baker say? A: He just sort of hemmed and hawed and argued that

he didn't open the door. I replied, "What was the

point of making that argument then? All you were

trying to do was argue that Simpson was innocent, and was willing to take a test, and would have

passed it. Well, in fact, he's guilty, he took a test, and he failed it. The exact opposite of what you said to this jury. Now if you didn't want this to come in, you shouldn't have said a word about it. You can't silence me." And anyway that's what happened. And the judge permitted me very limited questions about it, and then gave the jury a cautionary instruc? tion that I frankly didn't agree with.

Q: What was that instruction? A: He told the jury that there was no evidence that




Simpson took a polygraph test because Simpson denied he took one. But Simpson, in answering my questions, admitted he was strapped up and hooked

up to a polygraph device, but claimed he did not understand he was taking a test?he thought it was a practice exercise. I thought the judge gave the defense too much room on that instruction. In any event, it turned out when we talked to jurors after the trial, they had not even remembered during deliberation this polygraph issue. It was a complete non-issue to the jury.

Q: Was there one pivotal piece of evidence that the

jury found that changed their mind in your favor?

A: The single biggest event to the jury was Simpson's examination. They were looking and waiting for him to testify, and in my view would have been pre? pared to overlook much of the highly incriminating physical evidence, perhaps all of it, if they believed

Simpson on the stand when he looked them in the

eye and said that he did not kill Ron and Nicole. But as they have said after being interviewed, the jurors did not believe Simpson. He was lying, and that was the end of the day for him.

Having said that, let me explain that I do not think that the jury felt that way just because of the

The cross of Simpson was aided by evidence? the blood, the DNA, the hair, the gloves.

cross-examination of Simpson. The way had to first be paved?and was paved?by all of the powerful physical evidence presented prior to Simpson's examination. By the time Simpson took the stand, the jurors had already heard about the blood, the

DNA, the hair, the fiber, the gloves, the shoe prints, the blood trail, and much more. All of this had

already been presented, so I believe that the jurors were convinced that Simpson was guilty based on the evidence. Now when Simpson got on the stand and denied everything, and was not believed, then that sort of closed the loop.

Q: That structuring of the evidence and the order of witnesses is critical in all cases, isn't it?

A: That is absolutely critical, and my partners and I

spent endless hours on how to structure the trial, the order of witnesses, the order of proof, what each witness would say, what exhibits would be intro? duced, and on and on and on. Everything was very carefully mapped out.

Q: How did you decide what the particular order was? I don't mean person by person, but structurally.

A: We decided to go right at it.

Q: Who was your first witness?

A: The first witness was Karen Crawford, who was one of the last persons to see Ron Goldman alive. We started out for the first half a day, and that's all it took, showing the last hours of Ron and Nicole, because we wanted to start the case with their lives, and what they did in their last hours, and how Ron ended up at Bundy. From there, we moved right into the time line. And we did that very quickly. Within an afternoon all the time-line evidence was in. And there was a reason why we were able to do it so

quickly, which I can get into if you want.

Q: Yes.

A: We decided on a different time line approach than in the criminal case, and by doing so, we trumped the defense on the whole time-line issue. After we

got past the time line, we went right into the dis?

covery of the bodies and what the police witnesses saw and collected, and we then moved into the var? ious types of physical evidence, showing through the experts and scientists how the evidence identi? fied Simpson as the killer, and that took us into

Simpson's cross.

Q: In deciding what kind of jury you wanted, did you use a jury consultant or focus groups?

A: Yes, we used Decision Quest, and they did a mar? velous job of conducting jury research and focus

groups with us prior to the trial. What we learned is that the defense themes from the criminal defense case resonated very strongly; they were very pow? erful: planting, contamination, frame-up, conspir? acy. We had a great deal of work to do to undercut those preconceptions, and the prosecution themes were barely apparent. Despite the fact that all the evidence incriminated Simpson, all the mock jurors wanted to talk about was he framed? Did the police conspire? Did they plant this, did they plant that? All they talked about was the defense side of the case. That was a real eye-opener.

At the same time, we learned that these percep? tions were based entirely on misinformation and

misunderstanding of the facts of the case. For

example, nobody really understood from the crimi? nal trial that OJ. Simpson gave his blood to the

police long after the blood evidence was collected. The blood evidence had been collected at Rocking ham, the blood evidence had been collected at

Bundy, and Simpson gave his blood later on in the afternoon, about 3:00 to 3:30.

Q: That's never been widely publicized. A: Well, that's a perfect example. So the evidence

could not have been planted at the scene of the crime or at Rockingham because the police did not have

Simpson's blood. So if the police could not have

planted Simpson's blood at Bundy, how did it get there? Why did Simpson's blood show up on the test results? Because someone substituted his blood for the real killer's blood in the lab? If that's the argu?

ment, now we're dealing with planting in the lab, not at the crime scene. Who had access to the lab? Lab technicians? So, did lab technicians plant or substi? tute Simpson's blood for the real killer's blood?




Q: Was this Baker's argument? A: He tried to be vague, but we would not let him. We

forced him into having to say that the blood must have been planted in the lab. Now at Rockingham, he had a bigger problem. The real killer could not have dripped blood in Simpson's house, or on his

property, so how did that blood get there?

Q: What was the explanation for that?

A: And how did the blood get there hours and hours before the police had Simpson's blood to plant there if they were so inclined?

You Don't Remember Bleeding? Q: How did he explain that?

A: They had a real problem. Baker tried to argue to the

jury that Simpson accidentally bled there the night before as he was running around packing. The prob? lem was that Simpson did not admit to that on the stand and, in fact, denied it. And I took him through every blood stain. Well, did you bleed the night before? Is that your blood there? "I don't remem? ber." "I don't think so." Did you see blood there? "I don't remember." So you don't remember bleeding at all these places? "No." Then I argued to the jury, look, the lawyer says one thing, the client says the other thing. Baker says Simpson bled there, Simp? son says he didn't. And it was a big problem for the defense. The blood at Rockingham was extremely damaging to Simpson. And this is an example of how the public did not understand the basic facts. And that taught us that we had to go back to square one and lay out the chronology very carefully: when the crime scene was discovered, what blood was there, when it was collected, when Simpson gave his blood. And we explained it very carefully starting with the opening statement.

Q: What were you looking for in terms of the "right kind" of jury?

A: In many ways the jury selection process was far more basic and simple than in other cases. We did not have the luxury of worrying about factors such as gender, age, occupation, and so forth. We were

just concerned with ferreting out people who were biased against our position from their exposure to the criminal case. This case had received unprece? dented exposure. Everybody had views about this case. Everybody had opinions about this case. I do not believe there has ever been a jury selection

process like this one where virtually everyone believes they know the facts of your case, but in fact

they really do not, and everyone already has an

opinion about the final outcome of your case. And some people were very candid about their views, and others were not. Our job was to sort out who had which opinions and beliefs, and it was a diffi? cult job, to say the least.

Q: They had all read or seen something about the case, had they not?

A: Of course. There wasn't a single person who had not heard of this case. The question was the degree of exposure, and more importantly, whether the per

son could set aside his or her opinions and views and listen to the evidence anew. The judge had to make that determination juror by juror, and it was a

very, very difficult part of the trial.

Q: Did you conduct the voir dire?

A: I did most of the voir dire, working closely with the other members of the team. Although we divided up responsibility for presenting the evidence and wanted everybody to do some questioning, we did not want to defuse jury examination too much, so that's the way we worked that out.

Q: Did your pretrial visceral feelings about the kind of

jurors you wanted match up with or were they dic? tated by the results of Decision Quest and the focus

groups? A; Generally speaking, our views of the ideal type of

jurors were confirmed by the jury research. For

example, we thought that the more educated jurors were the better for us.

Q: And you had no preference of men over women. Or did you?

A: I don't think so.

Q: Occupations of one kind or another?

A: We preferred jurors who had more supervisory responsibilities, who were responsible for other

people, who had more analytical skills. We favored

jurors who were not bored with their jobs and might use this occasion to carry out some social agenda.

We preferred people who were better adjusted and

happy in their lives. Those are very general obser? vations, but, as I explained before, we rarely had a chance to apply these sorts of criteria because we were almost exclusively concerned with ferreting out biased jurors. You had many prospective jurors saying, "I think he's absolutely guilty."

Q: None of those stayed on?

A: They all got excluded. There were jurors who said, "He's absolutely innocent." And those went out. And there were jurors who said, "Well, he's proba? bly guilty based on what I heard but I don't really know anything, just some things I heard on TV." One or two of those jurors actually survived. And we had a juror who made it to the final panel who said Simpson was probably not guilty.

Q: And you didn't strike her?

A: We had to use peremptories for those who were more biased. The whole jury selection issue boiled down to trying to exclude biased jurors for cause and failing that, using your peremptories. We rarely got down to a more refined level of jury selection.

Q: Did you get extra challenges from the judge? A: No.

Q: Other than for cause, who did you excuse?

A: We struck jurors who, based on their written ques? tionnaire and answers to voir dire, felt that Simpson

was probably innocent, thought evidence was

planted, thought that the cops lied, thought there was a frame-up or conspiracy. This was not rocket science. This was staring you in the face. O




winners || daniel m. petrocelli: reflections on the o.j. simpson case

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