The Search for Justice

by Robert L Shapiro

  Copyright

  Copyright © 1996 by Robert L. Shapiro

  All rights reserved.

  Warner Books, Inc.

  Hachette Book Group

  237 Park Avenue

  New York, NY 10017

  Visit our website at www.HachetteBookGroup.com

  First eBook Edition: November 2009

  ISBN: 978-0-446-57007-7

  Contents

  Copyright

  The Timeline

  Prologue

  Chapter One

  Chapter Two

  Chapter Three

  Chapter Four

  Chapter Five

  Chapter Six

  Chapter Seven

  Chapter Eight

  Chapter Nine

  Chapter Ten

  Chapter Eleven

  Chapter Twelve

  Chapter Thirteen

  Chapter Fourteen

  Chapter Fifteen

  Chapter Sixteen

  Chapter Seventeen

  Chapter Eighteen

  Chapter Nineteen

  Chapter Twenty

  Chapter Twenty-one

  Chapter Twenty-two

  Chapter Twenty-three

  Chapter Twenty-four

  Acknowledgments

  For Line11, Brent, and Grant

  The Timeline

  1994

  June. 12. Nicole Brown Simpson and Ronald Lyle Goldman are stabbed to death, their bodies found in the front courtyard of the former ’s Brentwood condominium on Bundy Drive.

  June. 13. In Chicago, O.J. Simpson is notified of his former wife ’s death. He returns to Los Angeles from a Hertz business trip, is temporarily handcuffed, and taken downtown by police for questioning. That evening, Robert Shapiro is contacted on Simpson ’s behalf and asked to become defense counsel.

  June. 16. The funerals of the victims are held.

  June. 17. As he ’s about to be arrested for murder, O.J. slips out of Robert Kardashian ’s home and goes on Bronco ride with friend A.C. Cowlings. When he returns to his home on Rockingham, Simpson is taken into custody.

  June. 24. Grand jury recused.

  July. 8. Six-day preliminary hearing results: Judge Kathleen Kennedy-Powell rules there is ample evidence for O.J. Simpson to stand trial on two counts of first-degree murder.

  July. 22. O.J. pleads “absolutely 100 percent not guilty” to the charges. Judge Lance A. Ito assigned to hear case.

  Aug. 18. Defense counsel files motion to obtain personnel records of Detective Mark Fuhrman.

  Sept. 2. District attorney files motion to sequester jury.

  Sept. 9. District attorney announces that the People will not seek the death penalty.

  Sept. 19. Although Judge Ito finds that detectives acted with a “reckless disregard for the truth,” he upholds the legality of the search of Simpson ’s home.

  Sept. 26. First day of jury selection. Process will ultimately take five weeks.

  NOV. 3. Jury panel selected: eight black, one white, one Hispanic, two mixed race; eight women, four men.

  Dec. 8. Alternate jury selected.

  1995

  Jan. 4. Defense waives Kelly-Frye hearing, which would have challenged prosecution ’s DNA evidence.

  Jan. 11. The jury is sequestered. Hearing held re defense arguments against admissibility of domestic-abuse evidence.

  Jan. 13. Prosecutor Christopher Darden and defense attorney Johnnie Cochran have heated exchange over racist language, specifically the n word, regarding the upcoming testimony of Mark Fuhrman.

  Jan. 24. First day of trial. Prosecutors Marcia Clark and Christopher Darden deliver opening arguments.

  Jan. 25. Johnnie Cochran makes opening statement for the defense.

  Jan. 27. O.J. Simpson ’s book, I Want to Tell You, is published.

  Feb. 3. Nicole Brown ’s sister Denise testifies to O.J. ’s mistreatment of her sister.

  Feb. 12. Jurors, judge, and attorneys for both prosecution and defense take field trip to O.J. ’s home and Bundy Drive crime scene.

  Marc. 15. Detective Mark Fuhrman, cross-examined by defense attorney F. Lee Bailey, adamantly denies using the word “nigger” at any time in previous ten years.

  April 11. L.A.P.D. criminalist Dennis Fung testifies. Under cross-examination by defense attorney Barry Scheck, he concedes litany of procedural errors.

  Apri. 21. After three sheriff ’s deputies are reassigned, jurors protest, at first refusing to come to court, later showing up dressed in black.

  May. 4. Wrongful death suit filed on behalf of Frederick Goldman and Kim Goldman, Ron Goldman ’s father and sister.

  May. 10. DNA testimony begins with testimony of Dr. Robin Cotton.

  May. 15. O.J. tries on the bloody gloves in front of the jury. They don ’t fit.

  July. 6. The prosecution rests its case against O.J. Simpson.

  July. 10. Arnelle Simpson, O.J. ’s daughter, is first witness called in defense case.

  Aug. 15. Controversy over possible conflict of interest re Judge Ito, his wife, L.A.P.D. captain Margaret York, and Mark Fuhrman tapes. Marcia Clark asks Ito to recuse himself from Simpson trial.

  Aug. 16. Clark changes her mind on Ito recusal. In turn, Ito will ask a second judge to rule on relevancy of Captain York ’s testimony.

  Aug. 18. Superior court judge John Reid rules that Captain York is not relevant to Simpson trial and need not testify.

  Aug. 29. Portions of Fuhrman tapes are played in court, with jury absent.

  Aug. 31. Judge Ito rules that jury will hear only two excerpts of controversial tapes. Attorney Robert Tourtelot, who represented Fuhrman in potential lawsuit against Shapiro, resigns as Fuhrman ’s lawyer.

  Sept. 5. The jury hears excerpts from Fuhrman tapes.

  Sept. 6. With jury absent, Mark Fuhrman appears on stand, invoking his Fifth Amendment privilege against self-incrimination.

  Sept. 7. The defense announces that O.J. Simpson won ’t testify on his own behalf and requests that the judge instruct jury as to reason for Fuhrman ’s further nonappearance. Judge agrees, but prosecution objects. The question goes to appeals court.

  Sept. 8. Appeals court rejects Ito ’s jury instruction.

  Sept. 11. Defense refuses to rest their case due to the unresolved question of judge ’s instruction to jury re Fuhrman. In an unprecedented move, Ito orders prosecution to begin its rebuttal.

  Sept. 18. Prosecution conditionally rests its case.

  Sept. 19. Detective Vannatter is cross-examined by Shapiro on statements he made to mob informants, the Fiato brothers, about why police went to O.J. ’s residence.

  Sept. 21. Ito gives jury the option of finding O.J. guilty of second-degree murder.

  Sept. 22. Both defense and prosecution rest their cases. In a statement to judge waiving his right to testify, O.J. says, “I did not, could not, and would not have committed this crime.” Judge Ito gives jury instructions.

  Sept. 2. and 27. Clark and Darden deliver prosecution ’s closing arguments.

  Sept. 2. and 28. Cochran and Scheck deliver defense ’s closing arguments. Cochran makes controversial statements to the jury comparing Fuhrman to Hitler, which creates furor both inside the courtroom and out.

  Sept. 29. The case goes to the jury.

  Oct. 2. After less than four hours, jury announces that it has reached a verdict.

  Oct. 3. Jury finds O.J. Simpson not guilty of two counts of murder.

  Ethics code 7—19. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate [for the defense], by his zealous preparation and presentation of facts and law, enables the tribunal to come to the hearing with an open and neut
ral mind and to render impartial judgments. The duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law.

  American Bar Association Code of Professional Responsibility

  Prologue

  The most frequent question a defense attorney is asked (and this goes double for one involved in high-profile criminal cases) is “How do you sleep at night?” I heard it myself almost daily during the O.J. Simpson trial, especially when the prosecution was presenting its case and the evidence against my client was mounting. The second thing I heard, especially from people who know me well and feel comfortable leaning on me just a little harder, was “In your heart, don ’t you know he did it?”

  My answer to the second question is simple: “I wasn ’t there, you weren ’t there. Ultimately, it is a matter to be decided by the court.”

  My answer to the first question—How do I sleep at night?—is a little longer.

  We live in a nation founded on the principles of freedom and liberty. We fought dearly for those principles, and we pay a continuing price. The Constitution—and, in particular, the ten amendments that make up the Bill of Rights—is where that price is clearly set out, in plain and simple English. Of those first ten amendments, five are specific as to the rights of citizens who find themselves in an adversarial relationship with the judicial process: the Fourth Amendment protects the people against unreasonable search and seizure; the Fifth sets out the protections of due process, including self-incrimination; the Sixth ensures a public trial and the assistance of counsel; the Seventh guarantees the right of trial by jury; and the Eighth prohibits cruel and unusual punishment. It is the provisions in this document and nothing else—not good intentions, not patriotism, not capitalism, not orthodoxy—that stand like a sentry between us and our becoming a police state.

  The Bill of Rights and an attorney ’s rules of professional conduct require (they do not suggest) that anyone accused of a crime is entitled to a lawyer, as well as a trial. A defense attorney ’s job is not to “get someone off” but rather to represent someone ’s interests when the formidable resources of the state are arrayed against that person. And we aren ’t allowed to adjust our efforts to fit the circumstances, no matter the crime, no matter how morally questionable the person accused of it may appear to be, no matter our public or private assumptions of that person ’s guilt or innocence. A surgeon doesn ’t do less than his best when he ’s confronted with a person he detests on the operating table; neither does a lawyer. They cannot: Their respective professional codes of ethics forbid it. In my home state of California, the Business and Professions Code Section 6068(h) expressly forbids an attorney “ever to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed.”

  Prosecution attorneys and defense attorneys are officers of the court, both bound by the same rules of evidence and the same rules of professional conduct. However, our advocacy roles are different. The prosecutor ’s responsibility, according to the American Bar Association ’s Code of Professional Conduct, is “to seek justice, not merely to convict.” The defense attorney ’s responsibility is “to represent his client zealously within the bounds of the law.” The resulting adversarial presentation “counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known.”

  In Berger v. United States (1935), the Supreme Court stated that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty… whose interest… in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Justice means different things to different people. There is legal justice and moral justice. When most people talk about justice, they ’re talking about moral justice. Did someone commit a crime or not? If so, that person should be tried, convicted, and punished. If not, he or she should be acquitted. As a defense attorney, however, I must view justice as our (that is, our country ’s) system of legal justice, which is based not on the assumption of guilt but on the presumption of innocence. Guilt must be proven by the prosecution. And it must be proven beyond a reasonable doubt and to a near certainty within the rules of constitutional law.

  Reasonable doubt is a standard of common sense that is at the heart of our system of justice. Neither the prosecution nor the defense instructs the jury on that standard; the judge must do it. And judges have been wrestling with the intricacies and complexities of jury instruction, in both the state and federal courts, in nearly every single trial since the beginning of our criminal justice system. Ultimately, the questions before a jury are, Have they proved this case to your satisfaction? Are you sure? If someone near and dear to you—yourself, your relatives, your children—were on trial, and this type of evidence was presented against that person, would you be confident that you had made the right decision? Or would you be uneasy? Would you think, Did I do the right thing? Could I be wrong? If you ’re 90 percent certain, that still leaves percent doubt. And if you have doubts—rational doubts, based not on speculation but on fact—then you have no right to convict. Judge William Blackstone anticipated society ’s struggle with this when he said, more than two hundred years ago, “It is better that ten guilty persons escape than one innocent suffer.”

  Society has become so afraid of crime that Americans seem increasingly willing to forego the Bill of Rights, convinced that it protects the sinners rather than the sinned-against. “Well, the Founding Fathers couldn ’t have foreseen gang wars,” goes the rationale. Or crack, or insider trading, or contraband automatic weapons, or drugs, or sexual abuse, or pornography, or serial killers. To that, I would counter that neither could the Founders have envisioned the possibility that guilt or innocence might rest on a small laboratory slide containing an even smaller amount of deoxyribonucleic acid—DNA. Reasonable doubt takes on a new meaning in a case informed by science and determined by fallible human beings who interpret, manipulate, and define this data.

  It ’s convenient, when confronted with the virulence of modern crime, to forget history, both ancient and recent, which is full of object lessons illustrating what happens when the rules that govern a people ’s conscience are, for whatever “expedient” reason, set aside. As the country ’s perception of crime goes up—and its intellectual understanding of the justice system correspondingly goes down—everybody decides that the solution to “the problem” is tougher sentencing, more jails, and bigger prisons. The results of that decision are questionable. Nationally, one-third of male African American adults ages eighteen to twenty-five are either in jail, on probation, or on parole. In California, the legitimate desire for safe streets has led to the “three-strikes-and-you ’re-out” law. However, most prosecutors and many judges have begun to feel that the system has been slowed down because of this law, as real menaces to society are put in a holding pattern awaiting trial while the court wrestles with the problem of the man with two prior convictions who ’s arrested for stealing a slice of pizza and now faces life imprisonment.

  In the face of society ’s anger, it ’s almost inevitable that defense attorneys, rather than criminals, begin to carry the onus of crime. No longer seen as protectors of anyone ’s rights, or of constitutional rights, lawyers are hired guns, paid to “get the guy off,” and the public doesn ’t care for us very much. That is, until that moment in many people ’s lives when they or someone near and dear to them is arrested for something as simple as drunk driving or as complicated as insider trading. And then the first question asked is “Where are my rights?”

  Until and unless that moment happens, crime isn ’t committed by “us”; therefore, those accused of crimes aren ’t “us,” and “they” are not entitled to the same constitutional protections that “we” are entitled to. Or, as one defense attorney once put it, “Everybody in town hates my guts—until two o ’clock in the morning, when their kid gets arrested.”

  To be sure, defense attorneys have
brought some of the criticism upon themselves, by their courtship of and relationship with the press. There ’s a natural symbiosis between big trials and the media, with both caught up in the playing-field drama of game plans, strategy, key players, winning and losing. The tremendous egos that motivate us to win in the courtroom are not immune to the adulation that comes outside as attorneys spin their successes, in the process becoming everything from talk-show staples to Sunday-morning-TV pundits. Little wonder that in this environment the “celebrity attorney” becomes a pop-culture icon. It ’s one thing to garner respect, congratulations, and praise from one ’s peers and friends; it ’s another thing entirely to glance up during a Lakers game and see one ’s face juxtaposed with Jack Nicholson ’s on the massive video screen in the Great Western Forum.

  The “Dream Team” glitz shouldn ’t blind society to the fact that defense attorneys, in addition to zealously representing clients, also offer an ongoing and vital civics lesson in the rights of individuals. We cannot ignore the role of popular culture in shaping—or misshaping—public perceptions and expectations. Cop shows, both fictional and nonfictional, routinely portray illegal search and seizure, the physical abuse of suspects, and manipulation of evidence, all in the interests of “getting the bad guy” by the end of the hour, minus, of course, the time expended for commercials. But trials, and the people in them, are all too real. These days, anybody can accuse anybody of anything; indeed, in civil suits, anybody can sue for anything. What if a neighbor doesn ’t like you, or a business competitor wants to weaken you, and so files a false report of wrongdoing? What if your ex-wife calls the IRS and tells them you ’re cheating on your income taxes? Or your ex-husband calls the vice squad and tells them you ’re running a prostitution ring? Do you want the police coming into your home or office, going through your records, going through your closets, without a warrant? What happens if your spouse is killed and you have no immediate alibi? Suspicion always focuses on the surviving spouse, yet most of us could never account for all of our minute-to-minute whereabouts on any given day or date, especially during the times that we are alone. These days, an accusation is enough to destroy a life; an indictment and trial holds that life up to the examination and judgment of a society. A defense attorney ’s job is to see to it that the man or woman who stands under that scrutiny doesn ’t stand alone.