Metropolitan News-Enterprise


Monday, May 3, 2010


Page 7



Trying the O.J. Simpson Case in Terrain Hostile to Prosecution: It Wasn’t Garcetti’s Fault




122nd in a Series


GIL GARCETTI drew widespread derision over the loss by his office of the murder case against football Hall-of-Famer O.J. Simpson. However, what is generally regarded as a mammoth blunder by him and the prime cause of the defeat—trying the case in downtown Los Angeles rather than in Santa Monica—was not a decision he made.

The Los Angeles Superior Court, not Garcetti, decided where the case would be tried.

So say Court of Appeal Presiding Justice Robert M. Mallano, who was the Superior Court’s presiding judge in 1994 when the prosecution was launched, and retired Los Angeles Superior Court Judge Cecil J. Mills, who was then supervising judge of the criminal courts.

“Gil Garcetti took a lot of heat over something that was not his doing,” Mills says.

Simpson was charged with the June 12, 1994, mutilation-stabbings of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman. The defendant, an African American, was acquitted by the jury on Oct. 3, 1995. The panel was comprised of nine African Americans, two Anglos, one Hispanic.

The slayings took place in Brentwood, located in the Superior Court’s West District. Had the case been tried in that district, proceedings would have taken place in the Santa Monica Courthouse, and the jury pool would have been only about 7 percent African American.

 Instead, charges were filed in the Central District, with the trial consequently being held in the Criminal Courts Building in downtown Los Angeles. The jury pool for that courthouse (renamed in 2002 after Clara Shortridge Foltz) was estimated as 31.3 percent African American.

Indeed, at the 1996-97 civil trial of Simpson for wrongful death, staged in Santa Monica, nine of the jurors were Anglos, one Hispanic, one African American (replaced after deliberations began by an Asian American), and one person of Asian and African ancestry. That jury, under a lesser evidentiary standard, found Simpson was the killer, liable to the victims’ families in the amount of $33.5 million.

One would like to think that justice in the criminal courts system will be administered even-handedly, dispassionately, totally without regard to the race of the defendant or the jurors. Indeed, one would like to think that. Analyses at the time and since concur that race was a factor.

However, this was seen not simply as a matter of racism, but rather, as a phenomenon stemming from differing perspectives on the part of racial groups, based on differing experiences.

A post-verdict Nov. 27, 1995, Los Angeles Times article by then-staff writer Miles Corwin (now an associate professor of English at the University of California at Riverside), says:

“A Santa Monica jury would have been far more advantageous to prosecutors for many other reasons than race, said Richard Gabriel, one of four jury consultants who worked for Simpson’s attorneys. A Santa Monica jury, Gabriel said, would have given much more credence to two crucial elements of the prosecution’s case: domestic violence and DNA evidence.”

Simpson had a history of beating his then-wife and his blood was found at the crime scene.

The article continues:

“How a jury regards domestic violence and DNA evidence is more a matter of education and income level than race, Gabriel said. For example, he recently worked on a case in West Virginia where a low-income, all-white jury had the same attitudes about domestic violence as jurors in the Simpson case.”

In his nationally syndicated column, which initially appeared in the Washington Post on Oct. 8, Lou Cannon explains a reason why African Americans would have a “more hostile view of police” than whites:

“Blacks in Los Angeles have long complained of humiliations at the hands of the LAPD, which doesn’t always play by constitutional rules. These jurors dismissed as lies the police testimony that detectives went to Simpson’s home to tell him of Nicole Brown Simpson’s death; they realized that the real mission was to search the premises....”

Cannon remarks that the “prosecution stacked the deck against itself” when “Garcetti amazingly chose a downtown trial.”

Garcetti was similarly ridiculed from the start for filing the charges in the Central District.

A July 10, 1994, article in the San Francisco Chronicle suggests that “[d]efense lawyers already may have an edge if the case goes to trial” based on the filing decision.

A piece in the Washington Post on Sept. 26, 1994, sums up the state of the evidence—seemingly solid—and then virtually prognosticates an acquittal, based on where the case would be tried. It says:

“The state believes all the evidence points to the great Hall of Fame running back, rental car spokesman and actor. There’s a DNA match of Simpson’s blood at the murder scene. A bloody glove in Simpson’s back yard matched one found near the bodies. There was a history of violence in the Simpson marriage. Simpson bought a stiletto shortly before the murders. No other plausible suspect has been identified. The Los Angeles district attorney, Gil Garcetti, has characterized it as an open-and-shut case.

“Trial experts disagree. They think Garcetti will lose. Indeed, criminal defense lawyers and trial consultants seem to be almost unanimous in thinking that Simpson probably cannot be convicted by a ‘downtown jury,’ that the trial will end in either a hung jury or outright acquittal.

“When attorneys in Los Angeles talk about a ‘downtown jury,’ they mean a jury with a heavy representation of African Americans, Latinos, Asian Americans and blue-collar workers. The jury pool is drawn from a 20-mile radius from the courthouse.

“ ‘The D.A. will not be able to convict him,’ says Barry Tarlow, a nationally prominent defense attorney based in Los Angeles. “Garcetti shot himself in the foot as usual. This case could have been tried in Santa Monica. A Santa Monica jury would have been much more receptive to what the D.A. is selling.’ ”

The Jan. 22, 1995 issue of the Daily News recites:

“Garcetti was criticized harshly shortly after the murders for saying publicly that he expected Simpson to confess. There also have been critics who suggested that if the case were filed in Santa Monica, the racial demographics of the jury...would not have been so favorable to Simpson.”

A Time Magazine article prior to the verdict, appearing July 17, 1995, observes that Garcetti “is widely perceived to have micromanaged all the major moves in the Simpson case,” though it reports that Garcetti disputed that.

Once the Oct. 3, 1995, verdict was in, many held Garcetti personally to blame for it, as architect of the prosecution—and, in particular, the person who decided in what courthouse the trial would be conducted.

In the Oct. 9 issue of the Daily News, an article by Rick Orlov declares, with respect to the downtown filing: “Before a jury was selected or a single witness called in the O.J. Simpson double murder case, District Attorney Gil Garcetti made a decision that ultimately decided the case, legal experts say.”

An analytical piece by Paul Pringle in the San Diego Union-Tribune on Feb. 9, 1997—following the civil verdict in Santa Monica—says of the earlier criminal trial:

“Team Garcetti played cheap politics by moving the trial from Santa Monica to downtown—and accepting black jurors whom the prosecution’s consultant had warned were racially fixated. Garcetti signed off on the jury because he hungered for a triumph that would pay dividends beyond a determination of the truth. He wanted to win both inside and outside the courtroom—to mollify the full rainbow of L.A.’s electorate. It was a dumb, selfish idea. Garcetti could have demanded—successfully—the same sort of jury that nailed Simpson in the civil trial. But he lacked the courage to face down the racial controversy that a conviction by a politically incorrect panel might have sparked.”

Garcetti insisted that if the double-murder case had been filed in Santa Monica, it would have been transferred downtown. What he did not say—at least at first—was that the Los Angeles Superior Court had, in fact, so determined.

A Nov. 27, 1995, Los Angeles Times article says:

“Garcetti defended his decision in a recent interview, contending that the case would have been moved Downtown even if he had filed it in Santa Monica.

“ ‘We always knew this case was going to be tried Downtown,’ Garcetti said. ‘We knew it couldn’t be tried in Santa Monica....It was a given...based on our experience and the history of big cases.’

“Although a number of current and former judges disagree, Garcetti cited several reasons: The Santa Monica courthouse suffered tremendous damage during the Northridge earthquake, the facility is too small, its court calendar was ‘grossly overcrowded’ and it did not have adequate security to handle a long-term, high-profile trial. He added that the county had spent more than $1 million renovating courtrooms on the ninth floor of the Criminal Courts Building for high-profile cases such as Simpson.”

The public assumed the decision had been his, and he didn’t dispute it. Why? Garcetti has declined to be interviewed, pursuant to his policy of not talking about his years as DA.

There was speculation that the reason Garcetti filed the case downtown was that he wanted voters in the African American community to view him as having foregone the prospect of an all-white or near-all-white jury in Santa Monica, in the interest of fairness. This was, after all, only two years after a jury of 10 Anglos, one Hispanic, and one Asian-American had acquitted four white Los Angeles police officers in the beating of Rodney King, a black, sparking a riot here.

Now that it is seen that Garcetti filed charges downtown because the court had chosen that as the site of the trial, the question arises: Did he acquiesce in the public’s errant assumption that the decision had been his to try the case downtown in order to bolster political support among blacks? (Certainly he did bolster that support by his Sept. 9, 1994, decision not to seek the death penalty in the case…notwithstanding the exzistence of the special circumstances of multiple victims and, arguably, torture.)

Facing five election challengers in 1996, Garcetti at last declared that it was the court that had made the call on where Simpson would stand trial. A Long Beach Press-Telegram article of March 23, 1996, says:

“One oft-repeated complaint, that [Garcetti] made the decision to move the trial downtown from Santa Monica, is just plain inaccurate, he says. The decision was made by the Superior Court without any input from his office, he says, but it made sense and he accepted it as a foregone conclusion because the case was so large.”

However, the public’s perception was by that time fixed. The one off-handed statement by Garcetti did not alter the perception that he had committed the grand gaffe that caused the case to be lost. And that loss nearly cost Garcetti the election.

“Here’s the truth,” Mallano says. “It gets ignored.

“The determination wasn’t Garcetti’s that the matter not be heard in Santa Monica.”

The court made the determination, he tells me, “for security reasons and because of earthquake damage” in Santa Monica.

The Court of Appeal presiding justice, who heads this district’s Div. One, says the recommendation was made to him by Mills; he consulted with the West District supervising judge, David Rothman, who concurred; and he gave his approval.

“Garcetti got blamed for it,” Mallano notes.

It was the court’s decision, he reiterates, adding:

“I keep telling everybody that.”

He says he told that to a reporter at a time Garcetti was drawing criticism, but it wasn’t included in the story.

Mallano adds:

“Historically, the big cases were tried downtown. The fact that O.J. was tried downtown is more the observance than the breach.”

One major case that comes immediately to mind, he says, is the prosecution of Dr. Raymond Bernard Finch and his secretary, Carole Tregoff, for the murder of Finch’s wife. The victim had been slain in West Covina, but the trials took placedowntown, he recounts. (The first two trials occurred in 1960, resulting in hung juries, and the third in 1961, producing convictions.)

Mills remarks:

“The thing that was correct to do was bring that case to a place where we had a high-security environment.”

That, he reflects, was “one of the easier decisions” in connection with the case.

Had the case been tried in the West District, he opines, “it would have just devoured the Santa Monica court and shut them down.”

He related the decision to hold the trial downtown, he says, to Deputy District Attorney William Hodgman and others on the prosecution team during the time the preliminary hearing was in progress.

Garcetti apparently agreed with the decision and did not think it would impede a conviction in light of the strength of the evidence.


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