[EDITOR'S NOTE: A week before the start of the Simpson wrongful-death trial, Hank Goldberg, one of the prosecutors in the O.J. Simpson Case, joined Court TV on America Online's Center Stage. Anchor Dan Abrams acted as moderator as Goldberg took questions from the audience. The following is a transcript of that Sept. 9, 1996 event.]
Dan Abrams: Hank, Robert Shapiro said just before that the prosecution bored the jury with the physical evidence and that you made it impossible to understand. How do you respond?
Hank Goldberg: Well, this is revisionist history in the extreme. Those that watched the trial will recall that Woody Clark, who presented the bulk of the DNA evidence, according to all who watched, did an outstanding job. And if you look back at the trial -- and take Dennis Fung for an example, who I presented -- I had him on the stand for a day and a half, and he was cross-examined for 7 days. So much of the boredom and confusion was generated by the defense.
Dan Abrams: But the cross of Fung was effective, wasn't it?
Hank Goldberg: No. The cross of Fung was designed to accomplish two ends: First, to suggest that Dennis may have contaminated the evidence. However, by the end of the case, during Barry Scheck's argument, he conceded that the evidence was not contaminated during the collection phase. The second purpose for the cross-examination was to attempt to show that Dennis was involved in a conspiracy to convict Simpson. For example, they suggested that he didn't really obtain the vial of Simpson's blood from Det. Vannatter at Rockingham. However, during the redirect examination, I was able to produce video tape from news footage to prove that Dennis was telling the truth about having received the blood vial. So both objectives of the cross-examination failed.
Question: How do you feel about that photo of Simpson apparently in Bruno Maglis [shoes]. Do you think that photographer will be a big witness? Will he make a difference in the civil trial?
Hank Goldberg: I saw the photo, and it appears to me to be Bruno Maglis shoes that Simpson is wearing. The defense contention will probably be that the photograph has been doctored. So in the criminal case, our jury was very receptive to believing those conspiracy allegations. And it remains to be seen if the civil jury will be any different.
Dan Abrams: Do you blame Marcia Clark and Bill Hodgman for picking a "bad" jury?
Hank Goldberg: No. Marcia and Bill were aware every time that they exercised a challenge to kick someone off the jury. They were aware of who the replacements would be. So they needed to gauge whether the replacement juror was likely to be better than the person they just challenged. And they were faced with the situation where they felt the replacement jurors were likely to be worse than the people they were considering challenging.
Dan Abrams: So if there was no way to get a fair jury in downtown L.A. wasn't it a mistake not to try the case in Santa Monica?
Hank Goldberg: Some people have argued that the prosecution should have filed the case in Santa Monica for the purpose of getting a jury that had more white people on it. I personally find that argument reprehensible because the prosecution must make it's decisions in a race neutral, color-blind manner. This means that we should not consider which jury would have the most white people on it, or the fewest African-Americans. If we had considered that -- if we had taken the race of the jurors into account -- it would have been unconstitutional and unfair.
Dan Abrams: But you have said that Clark and Hodgman had no choice but to, in essence, pick jurors who had already made a decision about how they would vote. Might you have found a jury you think is fairer in Santa Monica or somewhere else?
Hank Goldberg: I believe that had the trial been held in Santa Monica, that a significant percentage of the jurors would have had biases against the prosecution similar to the attitude that many of the jurors downtown had. The most probable result in Santa Monica would have been a hung jury.
Dan Abrams: So no prosecutors could have gotten a conviction anywhere in the LA area?
Hank Goldberg: I think it would have been very difficult, and the reason is that I believe that the outcome of the trial was dictated by four very powerful social forces. First, the issue of celebrity status; second, the issue of the media coverage and the distorting influence it had in the trial; third, the issue of race; and fourth, the issue of sexism as it relates to the domestic violence evidence. We would have confronted those four factors anywhere in Los Angeles County.
Dan Abrams: But Vincent Bugliosi says he could have won a conviction?
Hank Goldberg: When you read Bugliosi's book very carefully, he never comes out and says that he could have won a conviction in front of the jury that we had downtown.
Question: What has your career been like since the trial? Are you still a working prosecutor, unlike most of the rest of your team? And what's your book like?
Hank Goldberg: I'm still working for the District Attorney's office as a prosecutor, which is a job that I enjoy and feel privileged to do. My book gives a behind the scenes view of the trial. In essence, it invites the reader into the offices of the District Attorney, to sit down with us and listen in on the conversations that we had about the key tactical and strategic issues in the case. It is my hope that in revealing this information, the reader will be able to come to their own conclusions about what really happened and why.
Question: How'd you graduate law school at 22? Is that some sort of record? What is your position on cameras in court in big trials?
Hank Goldberg: I finished my undergraduate work at UCLA when I was 19. I did that by taking a number of college credit courses while I was in high school. Regarding cameras in the courtroom, I am opposed to them in high profile cases where there is a danger of creating a media circus. In my view, the Simpson case was such a case.
Dan Abrams: Well, the circus was created outside the courtroom not in it. But let me point out that if you want to see a picture of Hank with a Leif Garretesque hairdo buy the book and look at the picture of him just out of college
Hank Goldberg: I believe that the media circus existed both outside and in the courtroom. The best example within the courtroom was the constant speeches that occurred virtually every morning, particularly by the defense. On the Mark Fuhrman issue, for example, when the North Carolina court ruled that Laura McKinney would not have to appear in California to testify to the infamous Fuhrman/McKinney tapes, the following morning Cochran gave his famous "this is a bombshell" speech. This speech as obviously not directed towards Judge Ito, because Judge Ito had no jurisdiction over a North Carolina matter -- so the intended audience was the people watching the case on television.
Dan Abrams: Maybe. But we find that good judges can shut the lawyers up when necessary.
Question: To Hank Goldberg: Do you feel in retrospect that Brian Kelberg's questioning of Dr. Lakshmanan was too lengthy?
Hank Goldberg: No, the prosecution was in no way harmed from Brian Kelberg's lengthy direct examination. Brian's objective was to front every potential issue that the defense might raise on cross-examination. His objective was to leave the defense in a position where they would have little or nothing left to raise on cross-examination. He was successful in the sense that Robert Shapiro's cross examination was extremely short, unlike the 7 day cross-examination of Dennis Fung. So I would not second guess Brian's tactical decision.
Dan Abrams: You defend all of the prosecution's decisions. Were there any major mistakes?
Hank Goldberg: If the mistake is to find in terms of something that had it been done differently, the outcome would have been different, then no. The prosecution did not make any mistakes. However, in any trial of this complexity, there are always going to be issues that we might have handled better, and one example would be the glove demonstration. But in terms of something that would have effected the outcome, I don't believe that had we handled the case differently, there would have been a different outcome.
Question: In the civil trial they have a chance to depose a lot of people you couldn't subpoena for pretrial interviews. How big a factor is that in the civil trial
Hank Goldberg: It's a significant factor. In a criminal prosecution in California, prosecutors are not allowed to use depositions in order to take statements from reluctant witnesses. For example, Simpson's former girlfriend, Paula Barbieri did not want to give a statement to the prosecution. However, when the plaintiffs took her deposition in the civil matter, according to the reports, she made a statement to the effect that she had broken up with Simpson shortly before the murders. This is an illustration of the civil discovery process being used to ferret out new information.
Question: Did you read Toobin's piece in the New Yorker? What do you think of it?
Hank Goldberg: I didn't read it.
Dan Abrams: Toobin's article blamed Marcia Clark for failing to pick the right "type" of jurors. He said that the defense attorneys said they knew Simpson was guilty and that Simpson knew the verdict the night before.
Hank Goldberg: Well, regarding Marcia allegedly not picking the right jurors, my response is the same as the one I gave earlier. That is, it assumes that the replacement jurors would have been better than the jurors that Marcia was considering excluding. Regarding the other statements about the mental state of the defense attorneys, it is a meaningless piece of trivia. It makes no difference in understanding the outcome of the trial, or what happened during the trial.
Dan Abrams: So as the final question I will ask you the one everyone asks me. . . do you think the families will win? yes or no?
Hank Goldberg: I think so. There are several factors to take into consideration. First, in the civil case, the standard of proof is "preponderance of the evidence," not proof "beyond a reasonable doubt." That's a much easier standard of proof to meet. Second, the plaintiffs need only convince nine of twelve jurors. And third, the plaintiffs have the advantage of the civil discovery process which we talked about earlier.
Dan Abrams: Simpson prosecutor and author of <i>The Prosecution Responds</I>, Hank Goldberg, Thanks.
Hank Goldberg: I've appreciated being a part of this discussion. And I hope that we can all finally come to learn the truth of what really happened in the case and why.
