The Search for Justice

by Robert L Shapiro

  From ten o ’clock that morning into the evening, we wrestled with these questions and many more besides. When the session was over, I came away with a legal pad full of notes, names, phone numbers, legal citations, and precedents, as well as a defense strategy that I believed would be unbeatable.

  The preliminary hearing, which was to last six days, began on Thursday, June 30, with Judge Kennedy-Powell presiding. Bob Kardashian, Skip Taft, Gerry Uelmen, Sara Caplan, and Karen Filipi accompanied me to court; Marcia Clark was now joined at the table by her boss in the D.A. ’s office, Bill Hodgman. David Conn, the original co-lead prosecutor, had been taken off the case when his statement regarding the release of the 911 tapes contradicted that of Chief Willie Williams.

  Later there would be some press speculation that Clark had been paired with Hodgman because he was gentlemanly and fatherly with witnesses and might “soften” her image. But Hodgman was hardly window dressing; in his distinguished career, he had prosecuted over forty murder cases, and he most recently had won the conviction of savings-and-loan magnate Charles Keating. Lance Ito had been the presiding judge in the Keating case. I knew that Bill Hodgman ’s gentlemanly demeanor blunted neither his intelligence nor his intention to fight this case down to the wire.

  During the six-day preliminary, twenty-one witnesses would testify. Marcia Clark and I spent the morning of the first day splitting hairs. At first they were literal ones. She wanted one hundred hairs removed from O.J. ’s head for forensic testing, in order to compare them to hairs found inside a navy-blue watch cap seized by police at Bundy. I countered that Dr. Lee had advised us that three hairs would be sufficient. Judge Kennedy-Powell ultimately ruled that the prosecution could have up to one hundred.

  It was during my cross-examination of Michelle Kestler, the assistant director of the L.A.P.D. crime lab, that the question first came up of splitting or sharing forensic evidence for DNA testing. What had been tested so far? What remained to be tested? Would there be enough left, after the prosecution ’s tests had been done, for the defense to run its own DNA tests? As I proceeded to question Kestler item by item—there were sixty—Marcia Clark began her pattern of objections. Some were sustained, some overruled, but the net effect was to establish in a very real way the adversarial nature of our relationship in that courtroom.

  Clark: “This is going to take all day in the manner in which counsel is proceeding.”

  Shapiro: “Your Honor, with all due respect, I am representing a man who is charged with two counts of first-degree murder and may be facing the death penalty.”

  Clark: “I ’m trying to assist counsel in being more efficient and more effective.”

  Shapiro: “We certainly appreciate that…. If we don ’t have any further interruptions or suggestions as to how we should present our case, perhaps we can finish this.”

  Two witnesses at the preliminary hearing were called regarding the murder weapon—or rather, speculation about the weapon, which had not been found. The police had been contacted by Allen Wattenberg, the owner of a cutlery store in downtown Los Angeles, who told them that O.J. had come in about six weeks before the murders and purchased a large stiletto knife from a store clerk, Jose Camacho. Upon hearing this, detectives Lange and Vannatter went to the store, purchased a similar knife, and brought it to the coroner for comparison with the sizes of the wounds, at which point, it seems, they all concluded that the knife O.J. had purchased had been the murder weapon.

  During his testimony, Camacho revealed that he ’d been paid $12,500 by the National Enquirer for his story. (The TV tabloid show Hard Copy had only offered him “peanuts,” Camacho said.) The appearance of seeking notoriety can impeach a witness ’s credibility—that is, make it look like he has his own agenda for testifying. Although he should have been told by the prosecutor ’s office not to discuss anything with reporters, he testified that when he asked someone who was in charge of witnesses in the D.A. ’s office if he could talk to the tabloids, she told him that talking to the press was up to him. This wouldn ’t be our last experience with potential witnesses jumping on the cash-for-trash bandwagon. When payments are made for information that becomes testimony, questions are raised not just about a witness ’s credibility but about his agenda or possible bias. Some people will say anything for money.

  The actual knife that O.J. bought was found exactly where we believed it would be. In his master bedroom, there is a dressing table with a three-panel mirror on top of it. The side panels open, revealing storage areas. That ’s where he had put the knife—which was in fact the smaller of the two versions the store clerk had described. And it had never been used at all, for anything. We filed a motion to have a Special Master appointed to go retrieve the knife from its location.

  “Special Master” is a term used to describe a lawyer or judge appointed to supervise a sensitive search warrant; for example, one for an attorney ’s office, where the police might come upon confidential information that is either irrelevant or beyond the scope of the search at hand. A Special Master is independent of the court and the prosecutor-police, and sworn to ignore items not related specifically to the warrant. If there ’s a dispute or question about an item, the Special Master brings it back for a hearing with an outside judge, so there won ’t be any chance of tainting the evidence.

  We were not obligated to turn over or notify the prosecution and court of evidence that was exculpatory—that is, favorable to the defense—which the pristine knife certainly was. But my thinking was that had we waited until the trial (which at that point looked like it would occur in August 0f 199, but would in reality not begin until January 1995, and then argued that this knife had been seized by Mr. Simpson ’s lawyers and kept since June 0f 1994, it would put the lawyers ’ credibility in question and raise a great deal of suspicion as well. Why, the question would be, did the defense hide that until now?

  Gerry Uelmen and I met with Judge Ito in his chambers and asked him in his administrative role to appoint a Special Master to retrieve the knife and turn it over to the court for safekeeping. Ito then contacted retired judge Delbert Wong, explained the situation to him, and asked him to serve as Special Master. Wong agreed, and the next morning, accompanied by Bob Kardashian, he went to Rockingham, took copious notes, and removed the knife from its hiding place. The knife was returned in a manila envelope, under seal, to Ito. It was our intention that it remain in the custody of the court until and unless it was needed in the trial itself.

  In a particularly dramatic moment at the preliminary hearing, I took a risk and broke my own rule of never asking a question I didn ’t know the answer to. We wanted to establish that the knife O.J. had purchased had been put in a safe storage place and never removed, by O.J. or anyone else. I asked the searching officer if he or the others had thought to look in the mirrored cabinet. When he answered that he had not, I looked at O.J. with relief.

  The “mystery envelope” containing the knife took on a disproportionate importance when Judge Mills walked into the courtroom with it and called Judge Kennedy-Powell off the bench (in front of the TV cameras). She returned to the bench with the envelope and announced that she was going to open it. I immediately objected. Judge Kennedy-Powell ruled that the envelope would stay sealed until defense and prosecution had time to submit briefs on why—or why not—the envelope and its contents should become evidence.

  It turned out that immediately after Judge Ito had taken the envelope under seal, he went out of town on a planned long weekend. When Judge Cecil Mills heard about the envelope, he had a different opinion about our use of the Special Master and whether evidence like this should be withheld from the prosecution. So he gave it to Kennedy-Powell with the idea that once the prosecution became aware of it, they would insist that it be entered into evidence.

  While speculation mounted that the envelope contained the actual knife that O.J. had purchased, the prosecution never again talked about it, its purchase, or their theory that it had been the murder weapon. It
wasn ’t. Dr. Lee ’s forensic tests revealed that the knife had never been used by anyone for any purpose, and it was in the exact same condition it had been in when purchased.

  Although we were still at the beginning of what we both knew would be a lengthy process, I began to sense that in spite of our previous working relationship, I was getting under Marcia Clark ’s skin. No matter what I said or did, she would come right back at me—that is, it seemed, at me, not at what had just occurred procedurally. When she countered our manila envelope with one of her own, ostensibly containing the records of Juditha Brown ’s telephone conversation with Nicole, she seemed to present it with a “take that!” gesture. As was noted in Newsweek at one point, “Lead prosecutor Marcia Clark never lost an opportunity to retail her material with theatrical flair.”

  Just as the preliminary got under way, the Fourth of July holiday weekend arrived, and court was recessed. Normally Linell and I take the two boys to the beach for fireworks, but this year she took the boys, and I stayed home working. Miraculously, the phone didn ’t ring. It was strange not having anyone around, but the peace and serenity of being by myself there was something I hadn ’t experienced in a long time. It lasted exactly two days. On Monday, we all trooped back into the office.

  As I was leaving Drai ’s one evening prior to the preliminary, I met a woman named Jackie Kallen, the only female boxing manager in the world. I knew the name, and I knew she was managing world champions. You might expect a woman in the fight business to be the prototype of a tough broad, but Jackie Kallen, lovely in both dress and appearance, is tough where it counts: in her brain.

  “I manage James Toney, the middleweight champ,” she said. “We ’re in town for a couple of weeks training for his Las Vegas championship fight with Prince Charles Williams. I understand you like to box. Would you like to come by the gym? If you want, you can even work out with him a round or two.”

  Astonished at the chance not only to meet Toney but to spar with him, I eagerly made a date for the following Sunday. It was to be a private session; Toney ’s training time in the gym was closed except to his family and close friends, and I didn ’t tell anybody except my family what I was going to do.

  The gym was in an old office building. The boxing ring was in a far corner, along with two speed bags, a couple of double-ended bags, an area for jumping rope, and a bathroom that was there long before World War II. Toney was in the ring with his sparring partner, who was about three inches taller and outweighed him by twenty pounds. Toney himself, although he fought at 165, looked more like 190, even though he was only two weeks away from the championship fight. Working inside, he was deliberately absorbing blows to toughen himself up. With Grant lingering somewhat shyly behind us, Linell and I greeted Jackie, who introduced us to the manager of the gym, the trainer, and James Toney ’s mother, who seemed almost too young to be the mother of the man in the ring.

  While in a clinch, Toney leaned out and said, “Is that pussy lawyer here? I hate goddamn lawyers. I ’m gonna kick the shit out of him. Can ’t wait to get him in here.”

  Jackie turned to me and said, “Don ’t worry about it, he ’s just trying to make you nervous. He ’s just talking shit; that ’s the way some fighters are.” “Nervous” is hardly sufficient to describe the way I felt. It didn ’t help when I heard the smack that accompanied the clean right that Toney fired at his sparring partner, rearranging the guy ’s nose.

  After I changed, my hands were wrapped for the first time by a professional trainer—Jackie herself. Afterward, she introduced me to another trainer, who looked at me dubiously and said, “Let ’s work out for a few minutes and warm up.” He seemed relieved to see that I ’d had some professional training and basic boxing skills. After he ’d given me a few pointers, he told me that the most important thing to do was relax.

  “Get that pussy up here!” I heard Toney yell. Jackie looked at me and said, “You know, I ’m not sure this is such a good idea. James is two weeks away from a major fight, and he ’s pretty unpredictable. I ’ve got a couple of other great fighters here who ’ll give you a good workout. Why don ’t I put you in the ring with one of them?”

  “I came to fight the champ,” I said, my own words ringing inside my head, “and I ’m going to do the best I can.”

  Toney ’s mother took Linell aside and softly said, “He ’s my son and I love him, but he has a hot temper. No one knows what can set him off. Tell your husband not to do it.”

  “Bob is going to do what he ’s going to do,” said my wife, “and nothing I say will change his mind.”

  Through the ropes and into the ring I went. Toney would tell me later that he was amazed not to see any signs of fear whatsoever. Quite honestly once I was in, I didn ’t feel afraid. I was just ready to give it everything I had, to do the best I could—hoping he would hold back. Clearly I wouldn ’t have had a chance if he was fighting seriously. For amateurs, sparring isn ’t fighting—it ’s a way to sharpen your skills, to get a good workout. The general rule is, you get hit with as much force as you hit your opponent. For pros, it ’s different. Boxing is their livelihood; there are championships at stake. And when they spar, the sparring partner always comes in second.

  I went to my corner, where grease was smeared on my face, and then walked into the center of the ring, where Toney was waiting. We touched gloves, and after that, he was pure speed. My first couple of jabs hit the air; he was giving me the opportunity to connect and I couldn ’t do it. He had that lightning footwork, that boxer ’s dance, backing up instantaneously every time he saw a muscle tighten. He slowed down a bit, allowing me to get my rhythm. I was able to throw a few jabs, but every one met a quick response. Although I ’d trained for as long as twelve rounds before, I had never sparred more than four, and the tension in my body after the first thirty-second flurry felt like it was going to burn me out. I could hear my corner yelling “Take a breath! Relax! Relax!”

  I went for a second wind, got into a clinch, didn ’t like the body punches that resulted, and then went toe-to-toe, each time trading punches as Toney bobbed and weaved. It was the longest three minutes I ’d ever spent. I felt like I was in a world championship match all by myself. When it was over, Toney said, “One more round.” I went back to my corner, where they poured cold water on my head. Invigorated, I thought, well, sure, okay, another round.

  As I got up, still facing the trainer in my corner, Toney snuck up behind me and threw a half-punch to my jaw, like a little kid taunting and teasing but thinking himself pretty damned amusing. I came back at him immediately, throwing three or four fast punches that danced us to the center of the ring. He got me into a clinch, doing what fighters call “leaning on you.” I weighed in at 165, the super-middleweight limit, and Toney outweighed me by what felt like a good twenty pounds. I got lucky and landed a great uppercut, and then thought: “Oh, my God, now what ’ll he do?” Because if he hit me in kind, I ’d have been knocked through the ropes. Instead, he got me into another clinch and then bit me on the shoulder. Top dog, the gesture said. I ’m in control here.

  After we ’d finished, we embraced, as fighters do. Jackie took pictures of me and James Toney and my son Grant. I couldn ’t stop grinning. It had been the most exhilarating six minutes of my life. Toney told me he was surprised that I showed no fear, and he later told a reporter, “That Shapiro, he came in here with a big mouth. We went at it for two rounds. He was tough.”

  Chapter Five

  I didn ’t want to prohibit any of the lawyers on the defense team from answering casual questions posed by reporters, especially when we walked out of court each day, but I insisted that we had to be perceived as a united, cohesive team—to speak, in effect, in one voice. Although Bailey and Dershowitz had always appeared on television during their own cases and often offered commentary on cases they were not involved in, I had decided that I would not give any interviews during the trial. I even turned down the December Playboy interview, which would have given me an opportu
nity to discuss some of the complexities of the case. I did, however, make comments on each day ’s proceedings to courthouse reporters.

  Bailey and Dershowitz continued appearing on television, making sometimes contradictory comments about the case. One day I was denying reports of a plea bargain; the next day I was reading that the ice cream that Nicole had purchased at Ben and Jerry ’s before her death was somehow going to give O.J. a rock-solid alibi. Mickey Rudin, Frank Sinatra ’s longtime lawyer, sent me a gift—adhesive tape—engraved “For Lee and Alan.” Finally, I had to lay down the law that there had to be no television interviews by anyone on the team unless previously viously cleared. Dershowitz graciously agreed; Bailey, however, remained a loose cannon.

  Dean Gerald Uelmen arguing for evidence exclusion, citing California ’s Supreme Court in People v. Smith: “The belief upon which an officer acts must be the product of facts known to or observed by him, and not a fanciful attempt to rationalize silence into a justification for a warrantless entry.”

  He then continued, explaining, “If we were to carve out an exception to the Fourth Amendment for detectives who don ’t know what they have, in effect we would turn the Fourth Amendment on its head and say, ‘The less you know, the more you can search. ’”

  Much to my disappointment, Judge Kennedy-Powell ruled that the evidence gathered at Rockingham was legally obtained and thus admissible. Her decision (which went against Gerry Uelmen, her former law school professor) wasn ’t unexpected, given the unwritten rule (remember the example of the marijuana versus the murder weapon) that the more important the evidence to the prosecution, the lower the constitutional standard.