Commentary

Tapes could prove powerful evidence against Simpson

Updated: October 3, 2008, 2:03 PM ET
By Lester Munson | ESPN.com

In a small, windowless room on the 15th floor of a Las Vegas courthouse, a jury will soon decide the fate of O.J. Simpson. The jury's deliberations come at the conclusion of a four-week trial in which Simpson faced charges of conspiracy, robbery and kidnapping as the result of an incident in a Las Vegas hotel room on Sept. 13, 2007. The incident, the resulting investigation and the trial raise a number of questions about Simpson and the legal system. Here are some of the questions and their answers:

Prosecutors say Simpson is guilty of a robbery. Simpson and his lawyers say he was trying to recover things that had been taken from him. What will the jury decide?

Simpson likely will not walk away from these charges the way he walked away from the murder charges in 1995. The evidence of a robbery is clear. Nine people were in the room when Simpson and his crew barged in with guns and grabbed an array of sports memorabilia that was displayed for a possible buyer. Seven of the nine have testified against Simpson. All seven agree that two members of Simpson's crew brandished guns, ordered the two memorabilia dealers against the wall and held them while others grabbed the merchandise. Even worse for Simpson, both gunmen agree that he asked them to "bring some heat" and told one of them as they entered the room to take his .45-caliber pistol out of its holster and use it on the dealers. A tape recording of the incident, made surreptitiously by the broker who organized the supposed sale, has the sounds of a robbery -- demands, threats and foul language -- and nothing that sounds like a gentleman seeking to recover mementos for his children.

What was the most powerful evidence against Simpson?

Michael McClinton, one of Simpson's crew, secretly recorded everything that was said as the crew gathered after the robbery. In this group, no one trusted anyone and everyone seemed to have a tape recorder. McClinton's tape, when it was played without interruption Friday, held the jury spellbound. At the end of the tape, there was not much doubt about what happened. Although Simpson and his lawyers deny that he knew anything about any guns, Simpson is clearly heard on the tape asking McClinton, "You didn't pull the piece out in the hall, did you?" Simpson told McClinton that he was worried about the security video cameras in the hotel corridor. "No, no, no, no, hell, no," McClinton replied. The reference to the "piece," together with testimony from McClinton and the other alleged gunman, Walter Alexander, that Simpson told them to bring guns could easily lead the jury to conclude that Simpson asked for the guns, knew all about the guns and then tried to cover up evidence of the guns.

How do Simpson and his lawyers explain the seven witnesses and Simpson's own acknowledgement of the guns?

In their answers to the charges, Simpson and his lawyers attacked the veracity of the witnesses, questioned the validity of the tape recordings and suggested that Simpson merely sought the return of some personal mementos. The witnesses, they said, were a group of thugs who lied about Simpson in attempts to reduce their sentences. The two gunmen, like others in Simpson's crew, made deals with the Las Vegas prosecutors that would result in reduced sentences in return for their testimony. Simpson's legal team also tried to show that the tapes could have been tampered with between the time the tapes were made and the time the tapes were turned over to police. But the Simpson legal team did not produce experts or other indications of actual tampering. To convince the jury that he was merely trying to recover stolen items, Simpson would have been the best witness. But he did not testify.

[+] EnlargeO.J. Simpson
AP Photo/Jae C.HongAfter the first day of his four-week trial, O.J. Simpson appeared to be up against some strong evidence of guilt.
Why didn't Simpson testify?

Simpson easily could have impressed the jury if he had testified. His surprising reservoir of personal charm has been on display daily in the corridors of the courthouse and on the sidewalks outside as he banters, poses for pictures and signs autographs. Early in his testimony, he might have been able to convince the jury he was trying to preserve a legacy of football keepsakes for his children. But then he would have faced cross-examination. It could have been brutal. The prosecutors would have used the tapes to show Simpson's increasing denial, delusion and desperation in conversations after the robbery. The tapes include McClinton's record of the postrobbery gathering and its mention of the "piece," collect telephone calls Simpson made from the Clark County Jail and other voice mails. On the tapes, Simpson is heard trying to tell members of his crew that they must remember that no guns were used. "As long as no one mentions guns, we don't have to worry," he says to one member of the crew. "Just remember -- no guns, no guns, no guns," he says to another. Increasingly concerned in the days after the robbery, he says, "I f----d up, I'm going to need a bail bondsman." On another occasion, he is heard trying to assure himself, "This ain't no major, major crime." When he realizes that McClinton, Alexander and others are telling the police about the guns, he calls his bondsman to complain about them, dropping "m----r f----r" three times in a single sentence and then saying, "I'm tired of this s--- now, m----r f-----g a------s changing what they told me."

Does Simpson have any hope? Is there any chance the jury could find him not guilty?

Yes. Simpson's lawyers have picked away at the witnesses and their stories and have succeeded in raising some doubts about their veracity. Simpson's most important witness was his good friend, Thomas Scotto, a neighbor in South Florida who operates an auto body shop. Simpson and Scotto were in Las Vegas for Scotto's wedding, with Simpson serving as Scotto's best man. The Simpson memorabilia event that led to the robbery charges was scheduled to coincide with Scotto's wedding. During a wedding party after the robbery, Scotto told the jury on Wednesday, both McClinton and Alexander demanded a private conversation with Scotto. In what Scotto calls an extortion, the two gunmen demanded $50,000. If they did not receive the money, they said, they would make things very difficult for Simpson. If the jury believes Scotto and concludes that Simpson was only trying to recover football and family keepsakes, the jury could find him not guilty. Scotto's testimony was one of many attacks on the men who have testified against Simpson. Simpson's lawyers say the witnesses are opportunistic thugs who are lying to avoid jail time, while the prosecutors insist that the men in Simpson's crew are telling the truth against their former friend in painful acts of integrity. It would be a real stretch to believe what Simpson's lawyers are saying, but it could happen.

If the memorabilia was stolen from Simpson, isn't he allowed to recover it? How can it be a robbery if it belonged to him?

Simpson hopes the jury will agree that he should be entitled to recover things that were stolen from him. But he faces two significant problems with this theory. The first is that the items were not exactly stolen. They were hidden. When Simpson realized that the Goldman family was about to try to collect on its judgment by seizing anything it could find at his Rockingham Drive estate, he had his sister and his manager grab things and hide them. His manager, in an argument with Simpson, took the materials to make up for money he claims Simpson owed him. Did he steal them? Maybe. Maybe not. It's a difficult question. But regardless of whether they were stolen, Simpson faces a second problem: He had no legal right to grab them as he did. Judge Jackie Glass told the jury in her legal instructions on Thursday that "a good-faith belief of a right or claim to the property taken is not a defense to the crime of robbery." Even if Simpson honestly believed the mementos belonged to him, it does not help him against a charge of robbery. His legal recourse was to use the civil courts to reclaim what he thought was his. Instead, he assembled his crew and took them by force.

Were there any surprises during the trial?

Yes. Judge Jackie Glass surprised everyone with a ruling that seems to be in direct conflict with governing decisions of the Nevada Supreme Court. District Attorney David Roger and Deputy District Attorney Chris Owens were well-prepared and presented their evidence brilliantly. In their proof of Simpson's intent to lead a robbery, they intended to rely on evidence of Simpson's enduring rage over the wrongful-death judgment that the family of murder victim Ron Goldman obtained against him. Simpson has refused voluntarily to pay any portion of the $33.6 million judgment. His former manager, Mike Gilbert, moved valuable trophies, game balls and other football memorabilia out of his home to avoid collection by the Goldmans. When Simpson and Gilbert fought over money, Gilbert took some of the items and sold them. Simpson was furious, and it was this fury that led to his attempt to recapture the items and the robbery charges. The rage over the Goldmans' judgment and Gilbert's actions are what formed Simpson's reported intent to organize the robbery. The prosecutors expected to present Gilbert and the Goldmans' attorney, David Cook, as witnesses. But Judge Glass unexpectedly and inexplicably barred their testimony. It was a surprise and a blow to the prosecution.

How did the prosecutors respond to the surprise ruling from Judge Glass?

In a brilliant final argument late Thursday afternoon, Deputy District Attorney Owens used the hours of audio recordings to present what the judge did not allow during the trial. Yale Galanter, Simpson's lead attorney, tried to object but could not stop Owens. Using Simpson's own words from the tapes, Owens managed to explain to the jury that Simpson's rage against Gilbert led to the robbery. As he gathered his crew that afternoon, Simpson is heard claiming that Gilbert "f---ed me from day one." Owens used excerpts of the tapes and some impressive technology to show that Simpson was interested in more than family keepsakes. "We'll take it all," Simpson says on one tape. "I don't want Gilbert or the Goldmans to get it. We'll take it, and you guys [his crew] can sell it." It provided the jury with a total picture of what happened and why it happened, a complete explanation of Simpson's motive, actions and words. It was the most impressive argument of the day and the last thing the jury heard before it began its deliberations.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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