The Search for Justice

by Robert L Shapiro

  Courtesy of the New York State Police, I finally located Baden in New York, where he is the director of the Forensic Sciences Unit of the New York State Police. He agreed to join me, and then recommended a colleague, Dr. Barbara Wolf, the director of anatomic pathology at Albany Medical Center. Dr. Wolf, a DNA expert, also works with the state police in Albany. Baden also strongly agreed with my idea of contacting Dr. Henry Lee, an esteemed forensic scientist and the director of the State Forensic Science Laboratory in Connecticut.

  Although I had never worked with Dr. Lee before, I was familiar with his national reputation as an expert in crime-scene reconstruction. It ’s said that the instructors at the FBI Academy respect him so much that they rise to their feet whenever he comes into a room. I had seen him testify as an expert witness in both the William Kennedy Smith case in Florida and the federal investigation into the Koresh matter in Waco, Texas. I was confident that Lee wouldn ’t fall into the trap of exceeding what he knew—that he would go only where the science went. Later on, it turned out that my initial expectations of Henry Lee were a significant underestimation of his great talents. When he simply walked up before the jury on the way to be sworn in, bowed to them respectfully, and said “Good morning,” I knew at that moment that this was a special man. In addition to his skills as a criminalist, Henry Lee ’s intelligence, magnetism, charisma, and ability to relate to the jury surpassed that of any witness I had ever seen.

  When I reached Dr. Lee and explained the reason for my late-night call, he agreed to come on board, but cautioned me that since he was a state employee, he first needed to get permission from the governor. Once permission was given—which it immediately was—he, like Baden, would be in Los Angeles within two days.

  I then called my friend Bill Pavelic, a retired nineteen-year veteran of the L.A.P.D., with eleven of those years spent as a detective supervisor. Bill is perhaps the most anal-retentive, thorough investigator I have ever seen, and he is passionate about police integrity and behavior. During his time on the force, he received more than two hundred commendations, including ones from the U.S. Justice Department and Los Angeles County District Attorney Gil Garcetti. Pavelic misses nothing. Not only can he find the needle in the haystack, he can tell you who dropped it there and when. If there is a mistake made in police procedure, protocol, or timing, no matter how insignificant it may appear to the layman, he will find it. Most important, Pavelic himself has absolute integrity, as well as an indefatigable work ethic. When he agreed to come on the case, I felt that one of the strongest links in the chain had been forged.

  When I finally got home on Tuesday, it was midnight. Linell had waited up, and I told her what was going on—that I was now representing O.J., that we were gearing up for a fight, and my free time, at least for the moment, had just evaporated. We talked about what it would mean for our family and in particular for our two young sons, Brent, who was thirteen at the time, and Grant, who was ten. We had always done a lot of things as a family; the boys were both at an age where they needed more of me, not less. We ’ve been married nearly twenty-six years, and Linell had seen me disappear into all-consuming cases before, but we knew this one would be bigger and that there was no way for me to do it except totally. She knew how I worked, and lucky for me she understood it. For the next eighteen months, she and the boys would collect a sizable stack of IOUs.

  Early the next morning—Wednesday, June 15—I called my old friend F. Lee Bailey in Florida. Bailey and I went way back. I trusted and valued his judgment both personally and professionally. We worked together often. I brought him into my cases, he brought me into his. He became godfather to my oldest son, Brent. He allowed me the honor of engraving his name and “of counsel” on my law-practice stationery. We talked frequently on the phone, and when he came to California, he stayed in my home. He was, I believed, as fine a friend and mentor as any man could hope to have.

  At Bailey ’s recommendation, I quickly contacted Pat McKenna, an affable former Vietnam vet and experienced private investigator based in Palm Beach. Another investigator, Barry Hostetler, came on board at the urging of my old friend Gerry Spence.

  Some weeks later, again at Lee Bailey ’s recommendation, I brought on Howard Harris, a computer expert, and John McNally, an ex—New York City cop who had worked with Bailey on the Patty Hearst case. The early coup of McNally ’s police career had been in 1964, when he tracked down fabled jewel thief Jack “Murph the Surf” Murphy, who ’d stolen the Star of India from New York ’s Museum of Natural History.

  Thus within two days after O.J. ’s phone call, a formidable investigative team was not only on the case but in the field—Pavelic at Los Angeles Airport, McKenna at O ’Hare in Chicago, the forensic scientists at the crime scene.

  My thought was to get people interviewed at LAX immediately, including baggage handlers, ticket checkers, and security personnel—anyone who would ’ve seen O.J. and could attest to his demeanor at the time he went on the plane. We quickly discovered that American Airlines employees at LAX either couldn ’t, or wouldn ’t, talk. Everybody had been instructed that since this was a police investigation the official policy was to be “No comment.” In my experience, this was very unusual. Evidently the edict had come down directly from the American Airlines corporate executives, reportedly concerned about the privacy issues involved—who else had been on the plane, for instance, and to what extent American ’s employees would become witnesses in what was clearly becoming a high-profile case.

  In Chicago, Pat McKenna investigated in and around the airport and the hotel where O.J. had stayed, gathering information about which searches the police had already conducted and the areas they were concentrating on, and looking for physical evidence—knives and bloody clothes. Every day we would read lurid stories in the newspapers about what was being uncovered in Chicago, but none of it, ultimately, had anything to do with our case. Bloody clothes were found that were nine months old, rusty knives were dug up in fields or found in ditches. Police investigators had even gone to the extent of actually going through the discarded airline toilet waste and garbage, looking for fabric and knife fragments that might have been disposed of on the plane. No incriminating physical evidence was ever found.

  My tendency, when working on a case, is to become completely immersed in it, to the exclusion of anything else going on around me. I don ’t, as a rule, watch much television; I read the national newspapers on the fly; and if it weren ’t for my friends in the film industry inviting my wife and me to screenings, I ’d probably never see a movie. I do go regularly with my boys to sports events—boxing, hockey, and basketball especially—not just because I enjoy them but because of their escapism quotient. The result is case-induced tunnel vision, and the bigger the case, the less sense I have of the outside world.

  This changed significantly when Bill Pavelic contacted Gary Randa, Cathy Randa ’s adult son, and in essence hired him as our video archivist. Gary ’s mission was to tape, each and every day, anything on television regarding O.J. ’s case. That included news segments in the morning, both local and national, all the talk shows throughout the day, the evening news wrap-ups, and everything on Court TV and CNN. Every few days, the defense team and the investigators would go through the tapes, paying close attention to the “court of public opinion” that was transpiring outside our office door.

  The video archive solved the problem of my tunnel vision, providing a way to be both inside the Simpson case and outside, watching and listening to the same information and punditry the public was getting. We paid close attention as rumors circulated, “eyewitnesses” were identified and then discredited, clues surfaced and then were discounted. Our unofficial, and unpaid, consultants soon included everyone from legal and scientific experts all across the country to the citizen on the street—who was also a potential juror. No one was hesitant to critique my performance, offer theories of the crime, or comment on both prosecution and defense strategies. It was invaluable, although I did have
to overcome my impulse to talk back to the TV when someone said something particularly inane.

  On Wednesday afternoon, I went down to Parker Center, the Los Angeles police department headquarters. The building has surprisingly limited security and open access, and I easily took the elevator to the robbery and homicide division, the L.A.P.D. ’s elite corps of detectives. There I met with Captain William Gartland, Lieutenant John Rogers, and detectives Tom Lange and Philip Vannatter to introduce myself as O.J. ’s attorney; Detective Mark Fuhrman, who was taken off the investigation early on the first day, was not at that meeting. I wanted to assure the police that I would be personally responsible for making O.J. available. I also wanted to discover whatever I could about the state and stage of their investigation. I told them that I had retained doctors Lee, Baden, and Wolf, explaining that these were the most respected professionals in their fields and that we were offering their services to the police department, to aid in the investigation to any extent that the police would allow. Their response, not surprisingly, was “No, thanks”—they had their own perfectly fine crime lab, their coroner ’s office always did a great job, and we didn ’t have to be concerned about that.

  When I asked what the time frame of their investigation was, no one could tell me. “Can you give us an estimate?” I asked. “A couple of weeks? More? I have a client who ’s going through a difficult time. If you ’re going to charge him, I need to prepare him for that and have him available to surrender.”

  But their only comment was, “We have a lot of work to do, and we just got started.” Before leaving, I made sure they had my phone numbers, I told them how to locate me day or night, and I assured them that with an hour or so notice O.J. would be available to them at any time.

  When I left the building, the press had already assembled. I introduced myself, explaining that I was now representing Mr. Simpson, that we had engaged the services of the best investigators with the intention of finding the killer, and that in the meantime it was our intention to cooperate with the police department in every way possible.

  In general, my attitude toward law enforcement has always been one of respect—a respect that I believe has become mutual over the last twenty-five years. I am, as are the lawyers in the district attorney ’s office, an officer of the court. I ’m viewed by them as a vigorous advocate for my client but one who always operates within the boundaries of fairness. I have a reputation as a keen negotiator, attempting to resolve cases without trials but being well prepared when trials are necessary, and I don ’t believe in cheap shots. It ’s a waste of time and energy, and it ’s neither professional nor pragmatic: Once one trial is over, another begins, and we all have to deal with each other in that courtroom every day.

  In addition, anybody who practices criminal law has to have one quality in the eyes of police and prosecutors, and that ’s credibility. I had a good history with the department, and my credibility was respected to such a degree that when the time came, they were prepared on my word alone to allow a voluntary surrender on O.J. ’s part, because for the previous twenty-five years, in all cases, I had always kept my word to them.

  That said, it ’s no secret that in recent times the Los Angeles Police Department has had its difficulties, both with procedure and personnel. The overwhelming majority of these cops are honest and hardworking men and women, doing what has become an increasingly difficult job with courage and integrity. They ’re constantly confronted with horrendous crimes and violence, much of it aimed directly at them, most of it having to do with narcotics. The public and the politicians have responded by leaning on the cops, hard. It ’s no wonder that crime has come to be viewed as a shell game by the police: Somewhere under those three shells is the pea—the criminal—and we ’ve got to get him, even if it means smashing up all three shells in the process. And the pressure gets even worse in a big case, a media-driven high-profile case, a “sure-thing” case.

  A detective ’s job is, literally, to detect. To solve crime. But once “getting the guy” becomes the goal, then it doesn ’t matter how it gets done, as long as it gets done. In my opinion, that ’s not only constitutionally improper, it ’s strategically foolish as well; because when there ’s a rush to judgment for whatever reason, evidence is overlooked or mishandled, and serious procedural and investigative mistakes are made.

  Immediately after that first June 1, meeting, I faxed a letter to detectives Vannatter and Lange (with copies faxed to the district attorney ’s office and the county coroner as well), repeating our offer of expert services from doctors Baden and Lee. In addition, I asked that a second autopsy be performed, stating that while I felt it was inappropriate for me to ask this of the Goldman and Brown families at this difficult time, I would appreciate the request for permission being passed along to them. I was quickly informed that the autopsies had been completed, and the bodies were en route to two separate funeral homes.

  In that same letter, I also responded to Detective Lange ’s request that O.J. take a lie-detector test, stating that we were willing that he do so, on the condition that the results be admissible in any potential criminal litigation.

  The use of the lie detector, or polygraph, in the criminal justice system is full of inconsistencies. Every law-enforcement agency employs polygraphers; the FBI has done so for at least twenty-five years, and the CIA and military use polygraphs on a regular basis. The L.A.P.D. employs a full-time staff of polygraphers and commonly uses them for internal investigation of police misconduct cases. The test results create charts that can be interpreted and reinterpreted by experts, and challenged on the basis that the operator asked the wrong questions, framed them the wrong way, or misinterpreted the data. Because the results are open to such wide interpretation, prosecutors have traditionally been averse to use polygraphy, especially in the courtroom. In fact, in California, polygraph tests are specifically precluded by law unless both sides stipulate that the results will be admissible.

  At that time Marcia Clark, an assistant to William Hodgman (the head of L.A. ’s Special Trials Unit), and David Conn had been assigned by the district attorney to prosecute the case. They responded that the D.A. ’s office would allow O.J. to be tested, but they would not stipulate that the results would be admissible. I wasn ’t surprised at their answer, but I wanted it on the record.

  When Gil Garcetti, the Los Angeles district attorney, picked Marcia Clark to prosecute this case, it seemed a refreshing choice to me. I had been friends with Harvey Giss, her mentor, and had known Marcia herself for nearly twenty years—from Kleks to Horowitz to Clark, I joked, referring to the name changes reflecting her first and second marriages.

  Marcia Clark ’s reputation as a prosecutor was excellent; she hadn ’t lost a case in more than ten years, and some of the convictions were high profile, including the Robert Bardo case (Bardo was convicted for stalking and ultimately murdering the young television actress Rebecca Schaeffer) and the Lewis and Oliver case (where two men used a sawed-off shotgun to fire into a Bible class at the Mt. Olive Church of God in South Central L.A., killing two people).

  Shortly before my involvement on the Simpson case, my office had taken on the defense of a young man who ’d been initially accused of first-degree murder, as well as aiding and abetting a robbery. Marcia Clark was the prosecutor we dealt with. After she reviewed the facts of the case and spoke with the trial deputy, she and Karen Filipi negotiated the charges to voluntary manslaughter. The client, however, wanted a trial, which ultimately took place a few doors down from the Simpson trial and lasted three weeks. The jury, out five days, eventually acquitted him on the charges of first-degree murder and robbery and “hung” between second-degree and involuntary manslaughter. He was ultimately released after having served a little more than a year in jail. The two cases provided an odd point-counterpoint, involving as they did associates of Marcia and myself, and a potential first-degree conviction. Because of our negotiations, in this and other cases we ’d settled, Marcia impressed me a
s a professional colleague I could talk to, whom I could trust, who was straightforward. I was confident that she would be an honorable adversary in the Simpson case.

  We were to find out some weeks later that we had more in common than we knew. in 1989, nine years after Marcia and her first husband, Gaby Horowitz, were divorced, he was shot. Horowitz, a professional backgammon player originally from Israel, was also a gun collector. He was inspecting a Colt .45 of another collector when the gun accidentally discharged while still in its holster, critically wounding Horowitz in the head and leaving him a paraplegic. I happened to represent the owner of the Colt.

  Imagine my surprise—and Marcia ’s—when the tabloids ran a story about how Shapiro defended the man who shot Marcia Clark ’s husband!

  With two people dying in a violent struggle, as Nicole Brown and Ron Goldman had, the murderer had to have sustained some bodily injury also—at the very least some cuts and bruises. Clearly we had to address O.J. ’s physical condition and get a record of it immediately. On Wednesday, June 15, I contacted Dr. Rob Huizenga, a Harvard-educated physician, sports-medicine specialist, and the former team doctor for the Los Angeles Raiders, and set up an immediate appointment with him for O.J. I knew Huizenga and his reputation through my own longtime physician and friend Dr. Robert Koblin, and believed that he was exactly the kind of man and doctor to reassure and calm O.J. during a physical examination.

  Additionally, his friends were growing concerned about his emotional state. I had arranged that after he was examined by Huizenga, he would then be seen by Dr. Saul Faerstein, a noted forensic psychiatrist whose professional services are often used by the U.S. attorney ’s office. Nicole ’s funeral was to be held the next day, there was a wake and a family gathering to attend that evening, and as the hour grew near, O.J. understandably grew more and more depressed.