Without a Doubt - [57]

Only four days after he took the case, Lance and I locked horns for the first time. It was bitter and it was public. The defense had filed a motion that would have required us to give them 10 percent of each of our blood samples so that they could do their own testing. I couldn’t let that happen. Some of the samples contained so little DNA that if we gave up even 10 percent, we might not be left with enough blood to get a test result. This was particularly true for the more sophisticated tests-for instance, the one that utilizes the RFLP method is very reliable but requires a fair amount of DNA. Remember, by law the defense is not obligated to come forward with their results-so if their tests proved Simpson guilty, they could and most assuredly would hide the information. On the other hand, if our diminished sample failed to yield a result, we’d wind up with nothing. So if we gave the defense a portion of bloodstains off the top-a concession that was based on no legal requirement-we might well destroy crucial evidence.

I was almost certain that Ito would reject the defense’s motion out of hand. Any reasonable judge would. Just to be certain, I drafted a proposal that would make it even easier for him: let the defense do all the testing. I was willing to go out on a limb like this because I knew the defense’s blood expert, Dr. Edward Blake, and I both respected and trusted him.

What I proposed was to give Dr. Blake the entire sample. Let him do all the testing-provided the defense would share his results with us. If the Dream Team was sincere about getting an honest result, they’d go for my compromise. The only possible reason for turning me down was if they knew the results would hang their client. My counter-motion, in essence, would call their bluff.

Get it, judge? They don’t want the truth; they want to hide evidence.

Sure enough, the defense flatly rejected my proposal. That figured. What surprised the hell out of me was the subsequent ruling from Ito. He granted the defense’s ridiculous request: 10 percent, he decreed, would be “available to the defense for their own testing.”

I leaned over to Lisa Kahn, the deputy who was handling DNA for our side, and whispered, “Did he say what I think he said?”

Lisa just shook her head in disbelief.

“Your Honor.” I jumped up, interrupting Ito in midsentence. “May I ask the court to take some further evidence?”

Ito fixed me with an icy glare.

“I think that perhaps defense counsel has misled the court as to the nature of the testing that is going to be performed. You’re depriving us of ever conducting the poly-marker test completely by giving that ten percent to the defense… You are taking evidence out of our hands forever.”

Ito seemed embarrassed and angry. I’d put him on the spot. On national TV no less. He must have realized that he could not safely ignore my objection. What if I was right? What if this screwy order wound up trashing all the blood evidence? So he ordered a hearing during which experts from both sides would testify as to how much evidence we had and what we could afford to give up.

I’ve wondered over and over again if I should have taken him on so boldly so early in the game. But every time I replay this scene in my mind, I come to the same conclusion. No good attorney would sit by and watch a judge throw away evidence. Meanwhile, the message was clear-Lance Ito lacked good judgment. If he’d strayed afield on such an obvious no-brainer, what could we expect on the complicated rulings?

We’d soon find out.

The defense had committed what I considered a serious tactical blunder by challenging the warrantless search during the preliminary hearing. Under California law, with rare exception, you are entitled to challenge a search or warrant only once. Shapiro and Gerald Uelmen had taken their shot before Judge Kennedy-Powell during the prelim, and she’d denied their motion. But now the defense wanted to mount a new assault upon that search in Superior Court.

Their grounds? “New evidence” had come to light involving police misconduct. They petitioned Ito to reopen debate on the warrantless search. He wasn’t, apparently, impressed with their showing and denied the motion. The defense then attacked the warrant, saying it was faulty and misleading.

In order to make any headway here, the defense would have to show that the warrant misstated or omitted crucial facts and that an accurate version, if corrected, wouldn’t have shown probable cause. And they must file a declaration itemizing those things that they considered errors.

In anticipation of this motion, I had put fellow D.A. Cheri Lewis to work on a set of tight, logical arguments showing how anyone could have made these mistakes under similar circumstances. The mistakes were, in legal terms, “merely negligent.” This phrase sounds more ominous than it is. It’s essentially an “oops”: mistakes anyone could make. They were not “reckless,” which means the cop knew or should have known what the truth was, but put down something else.