Without a Doubt - [38]
“Give me a break,” I whispered to David when I finally got back to my seat.
We had to make a decision. What precise crime would we charge O. J. Simpson with? Three options were open to us: murder one, which required establishing premeditation; murder two, for which we would have to show intent to kill, although the killing could be on rash impulse; or manslaughter, which meant demonstrating an intent to kill mitigated by the heat of passion. The crucial question is whether the evidence shows a clear intent and decision to kill. I felt that it most certainly did. You could not look at those photos of the murder scene and think otherwise.
“I’d like to charge the defendant with two counts of murder in the first degree,” I said.
Not everyone agreed.
“You’re looking at an uphill battle to ask a jury to tag O. J. Simpson with anything,” said Peter Bozanich. Peter was director of Branch and Area. I respected Peter, who was among the best in sizing up the strength of a case.
“You got him, there’s no question about that,” he said, in a resigned, almost philosophical tone, “but the guy’s a hero, and people aren’t going to want to drop the hammer on him.”
Peter was right. I knew it. Hell, we all did. But I felt that as a matter of principle, we should ignore O. J. Simpson’s celebrity in our decision to charge. A defendant, regardless of personal popularity, should be held responsible for his acts.
Brian Kelberg felt that second-degree murder was the more legally correct choice. “I basically see this as a rage-type killing,” he said. “I think he did not go there planning to kill her.”
“But what about the fact that he brought the knife, the gloves, and the ski cap?” I countered. “Not to mention the fact that he conveniently had a flight to catch immediately afterward.”
“I think he went there intending to scare her,” Brian insisted. “And when he saw Ron Goldman walk up, he became angry and things got out of hand.”
That didn’t feel right to me. Simpson had packed a knife with a blade at least five inches long, along with cashmere-lined winter gloves and a ski cap-in the middle of June. This went beyond intent to scare. It was a plan to commit murder. It may well have been that the food run Simpson had taken with Kato was part of the planning, too. It seemed out of character for him to dash out for fast food with a houseguest cum lackey.
“Remember,” I told my colleagues, recalling what Kato had said about that night, “Simpson had never done that before. The whole thing has the feeling of an alibi setup.”
Gil looked to his two other top assistants, Frank Sundstedt and Sandy Buttitta, who hadn’t weighed in yet.
Frank was a big teddy bear of a guy with curly blond hair and a mustache. He was someone I’d grown to like and respect during my days in management. He really cared about the deputies and agonized like an overly concerned father over decisions affecting their welfare.
“First-at least, that’s what it looks like to me,” he replied.
Then everybody turned to Sandy. She was a strong, no-nonsense professional, the first woman to be appointed chief deputy. At that point, I’d had very little interaction with her, and had no idea what she’d say.
“I think it’s first-degree,” she said.
Gil’s silence was affirmation: we had a decision.
The case of Ron Goldman was a bit different. Nicole was obviously the intended target. Goldman, it appeared, was a visitor who happened onto the scene at the wrong moment. His death could have been classified as either first- or second-degree murder. But I was pushing for first-degree. “Remember,” I said, “the number and nature of his wounds alone show premeditation.” Everyone in the room understood what I meant: under the law, premeditation cannot be measured in time. It’s there or it’s not, even if it occurs mere seconds before the crime. The fact that Ron’s killer did not dispatch him with a single blow, but a series of them, to me showed deliberate intent.
“Also,” I continued, “it’s reasonable to assume that Ron’s murder was not the rash impulse of a jealous ex-husband, but the calculated elimination of a witness to Nicole’s murder.” That, of course, would also justify a charge of murder one.
No one objected. Most significant, Gil Garcetti once more tacitly agreed. There was a brief silence as we all recognized that the first momentous decision in this case had been made. We would charge Orenthal James Simpson with two counts of murder one.
Next item on the agenda: strategy for the prelims. The big question concerned how much evidence to put on. Normally, a preliminary hearing is a bare-bones production. The prosecutor submits just enough evidence for a judge to find probable cause that a suspect should be bound over for trial. If you go beyond that, you’re unnecessarily allowing the defense early access to your case and your strategy; the conventional wisdom says that you should make them work for it through discovery motions. But this case was anything but normal.
