Without a Doubt - [58]

Cheri and I marched into court on September 21 loaded for bear. To our amazement we discovered that the defense team had not even produced a declaration listing the errors. Any judge with his eye on the ball would have admonished them for this omission and then ordered them home to write a proper motion. But not Ito.

And so we listened to Gerald Uelmen, former dean at Santa Clara University School of Law and one of the most boring speakers on earth, drone on for hour upon excruciating hour, before he got to his point: Phil’s claim that there had been “human” blood on the Bronco door was so devastatingly reckless that he’d misled a magistrate into granting the warrant.

Huh? You mean finding a bloody glove matching the one left at the crime scene wouldn’t be enough?

Uelmen concluded on a bit of tortured logic: getting a search warrant must have meant the cops considered Simpson a suspect, right? So why didn’t they arrest him when he got back to Rockingham on the thirteenth?

I wanted to stand up and concede the point. You know, Gerry, you’re right. They should have arrested him right then and there, but those nasty old conspirators let him walk right out the door. Phil Vannatter lied all over the warrant just so he could nail O.J… and then what does he do? Lets him slip right through his fingers. Yeah, I get it.

Far from making a persuasive argument, Uelmen had only underscored the cops’ innocent intentions.

In the end, Lance upheld the warrant. He really had no choice. He, like Judge Kennedy-Powell before him, had seen that the cops, acting under extreme stress in emergency circumstances, had performed imperfectly but properly. And yet Lance could not resist a gratuitous slap. He could not, he said, make a finding that Phil’s actions were “merely negligent.” Instead, he termed them “at least reckless.”

Even as I think back upon this now, it makes my blood boil. This episode was, for me, an education in the ways of Lance Ito. Lance, I was beginning to see, was so indecisive, so fearful generally of the “big guns” at the defense table, that he didn’t dare give us a decision without handing the defense something in return. Split the baby. Apologies to Solomon, it was Ito’s Law. In this instance, the cost of appeasement was high: a cop’s good name.

Throughout August and September, and into the early part of October 1994, prosecution and defense continued to wrangle over blood evidence. The defense claimed we’d intentionally delayed sending about two dozen blood samples from Simpson’s home and Bronco off for DNA testing. They claimed we were trying to buy time. That was ridiculous. If you measured our progress by any normal pretrial schedule, we were proceeding at the goddamned speed of light. The amount of evidence we’d managed to pull together and submit to date was staggering. But the labs had their own backlogs to deal with. Ito just didn’t get this. He felt somehow that the world should shut down for the Simpson case. The defense had dropped its request for a portion of our samples. This, however, only complicated matters because we had been ordered by the bench to have the testing conducted only at those times when the defense’s own expert, Dr. Blake, could be present. It had turned into a scheduling nightmare.

It was D.A. Lisa Kahn’s job to explain this to Ito. Unfortunately, she and the defense’s own DNA point man, a scrappy little New York import named Barry Scheck, could scarcely conceal their contempt for each other. Day after day she and Scheck went at it, he accusing us of bad faith, she accusing him of filing a flood of motions to confuse and mislead the court. The press dubbed these running hostilities “The Lisa and Barry Show.”

I could see that both of them irritated the hell out of Ito. Under the best of circumstances, Lisa wasn’t inclined to suffer fools, and she’d copped a snippy attitude with the judge.

One afternoon I was upstairs trying to get some of my own work done when a law clerk came running into my office.

“Marcia, have you seen what’s happening in court?” she gasped. “You’d better get down there ASAP. Ito’s furious at Lisa!”

I grabbed a pad of paper and flew downstairs, but court had already adjourned for the day.

Later, back in my office, Lisa gave me the unpleasant details. Ito seemed to be leaning toward keeping out blood samples, so she’d snapped, “If the court wants to make such a ruling, the court is entitled to… although I don’t believe there is truly any authority to support it.”

This had infuriated Ito.

“Fuck him, if that’s the way he wants to be,” she said angrily.

“You’re gonna have to do some begging and pleading to shore up our position,” I told her.

She wouldn’t do it. She wasn’t going to kiss butt for a motion she felt we shouldn’t have to argue in the first place. I sympathized with her, but I knew this intransigence would get us nowhere.

Ito was set to rule four days hence on whether our delays had been deliberate. If he found they were, he could impose sanctions that would exclude as many as two dozen blood samples. Among them was the blood of Ron Goldman, which had been found in the Bronco. It was a devastating piece of evidence against the defendant. And its loss would be terrible for us.