The Search for Justice

by Robert L Shapiro

  With specialists in both physical and mental health unable to agree, Mark Fuhrman didn ’t get his early retirement. What he got instead was a promotion. In my opinion Mark Fuhrman was either mentally unstable, even dangerous, or a skilled liar. Either way, his credibility as a witness had simply disappeared.

  Just before the preliminary, the editors at People magazine informed me that they were preparing a piece on me and wanted to send a reporter for an interview. Initially I was quite reluctant. My rule has always been that if it doesn ’t do anything on behalf of the client, don ’t do it. But they let me know that they were prepared to put the story together without my cooperation, and it would be a better—and fairer—story if I would agree to be part of it. When they said they wanted photographs, I contacted Peter Borsari, a West Coast freelance photographer that Linell and I had used previously for our charity events and family pictures. The magazine wanted informal shots, so Peter took pictures of me hitting the punching bag in my garage, bungee jumping at Lake Tahoe, relaxing in the pool with Linell. There was one particularly nice family shot of us with the two boys.

  Throughout I remained somewhat apprehensive; I think of myself as a serious professional, and here, I thought, would be all these images that might contradict that. On the other hand, I play as hard as I work, believing that mental health doesn ’t come from sitting at a desk, and the pictures were an accurate reflection of that belief. The time I spend with my wife and sons, the discipline I learn from trading punches with a sparring partner, the joy I get from skiing or boating—all these things enrich and strengthen my life and, I believe, make me a better, more focused lawyer. And as hard as it was for O.J. to sit in that small cell, he never seemed to begrudge these activities. As an athlete and competitor, he understood and respected my need for them.

  When the article was published, my professional credentials and integrity were given equal time with the bungee jumping and the boxing, and I decided that all in all it was fairly harmless. However, my family was now in the celebrity spotlight in a way they hadn ’t been before.

  For eight years, Linell had been involved with a charity organization called Quest, for children afflicted with Prader-Wille syndrome. Prader-Wille, somewhat similar to Down syndrome, results in mental and physical retardation, immune-system deficiency, and a sometimes fatal eating disorder. When the Simpson trial began, Linell was president of Quest, leading a fund drive for a home for the children. She asked friends to lend their support; in return, they asked her to support their causes, and of course she did.

  Attending charity-related black-tie events had always been a normal part of our lives. Now, however, my appearance at them, and the resulting media attention, would divert attention from the cause and focus it on me instead. When someone was quoted in the Los Angeles Times as saying, “Bob Shapiro goes everywhere now, you can see him at a supermarket opening,” Linell was stung. We started second-guessing not just black-tie events but ordinary evenings out at our favorite restaurants. They were keeping track of what she wore, where we went, what we ate and drank. “This is starting to feel like an out-of-body experience,” said my wife.

  My second experience with a national magazine was a more complex one. I had been contacted by Susan Mercandetti on behalf of the New Yorker. They were preparing what they called a photo essay of all the people involved with the Simpson case, and the black-and-white portraits were to be taken by famed photographer Richard Avedon. There would be no text, no need for an interview, but if I was willing, we needed to set up a mutually convenient time for the photo shoot.

  Shortly after the pictures were taken, I received a call (as Susan Mercandetti said I might) from Jeffrey Toobin, a reporter for the New Yorker and himself a former litigator and former law student of Alan Dershowitz. Toobin was one of a number of writers who had already become regular fixtures around the courtroom. Dominick Dunne, Joe Bosco, Joe McGinniss, the AP ’s Linda Deutsch, Bill Boyarsky, Jim Newton, and Andrea Ford of the Los Angeles Times, David Margolick of the New York Times, and Shirley Perlman of Newsday were among the others.

  As a courtesy to Toobin—and by extension to my friend and his former teacher Dershowitz, and Mercandetti and the New Yorker—I told him that although I could not give an interview, he was welcome to drop by the office and talk for a while. When he came in, I made it clear that the discussion was off the record. He asked if he could tape it or take notes, and I said no, that it was not an interview, it was an off-the-record discussion.

  We talked about the case in general terms, as any two lawyers might have done under similar circumstances, and he asked what direction I thought the defense might be going, in light of any information we ’d been able to gather during our investigation. I told him that we were taking a closer look at Detective Fuhrman, that there were some L.A.P.D. records on him that indicated he ’d had an antagonistic history with minorities and had in fact attempted to use his hostility toward them to get a disability-related early retirement. The city attorney had taken the position that Fuhrman had lied in this instance. So I said it appeared that Fuhrman was either an admitted racist or a skilled liar. Either way, he had a significant credibility problem. In addition, one of our investigators had heard a hypothesis floating around that the person who found the glove at Rockingham—and thus became a hero—was the person who had been replaced on the case initially, and that was something that a skeptical observer might view as curious.

  When the New Yorker with the Avedon photographs was published, I was appalled to see that directly opposite a full-page picture of me was a long article by Jeffrey Toobin titled “An Incendiary Defense,” in which he cited “leading members of Simpson ’s defense team” as “floating” the theory that Fuhrman had planted the second glove at Rockingham. The defense team, Toobin reported, was characterizing the detective as a rogue cop, a racist, and an integral part of a police conspiracy to frame O.J. Simpson for the murder of his ex-wife.

  I felt like I ’d been sucker-punched. This was exactly why I hadn ’t wanted to talk to Toobin, or to anyone else in the press, until this case was over. I was told that the photos were to run without text. I believed that my conversation with Toobin was exactly that—a conversation, off the record, between two professional people talking about potential strategies.

  In the months that followed, Jeff Toobin would write many articulate articles about this case. I came to respect his work. It was a supreme irony to both of us when we and the New Yorker were jointly sued by Fuhrman for libel, a suit that was quickly dismissed. But just as Linell and the children had their lives exposed in a new way because of the People article, things radically changed for me because of the New Yorker. Although I thought I was a media veteran, what I ’d believed to be an off-the-record conversation found its way into print, with my name—and face—attached to it. Thereafter, I answered most queries with a firm but definite no.

  Chapter Six

  After the preliminary hearing, it seemed a good idea to take stock of where we were, where we were going, and how we were to get there. O.J. had a number of friends and business associates who had advised him on different business ventures. Many of them were treating this, a criminal trial, as if it were the same type of situation. One of these men, Wayne Hughes, wanted to take over the entire financial aspect of the case—and also dictate how the case itself should proceed.

  He asked me to come to his ranch house in Malibu. When I arrived, Hughes came out on the verandah to meet me. He introduced me to the man who was standing there with him—who turned out to be his lawyer. This is strange, I thought.

  Hughes, I discovered, wanted to be the CEO of the defense team. With little knowledge of criminal law, he had a lot of questions, many of which it would have been unethical for me to address. I tried to explain the conflict, but he persisted. He wanted to meet with Dr. Lee and Dr. Baden; he wanted to know what the investigators had discovered. Hughes had theories of how the case should be handled and who should do it, and he wasn ’t p
repared to hear no for an answer. We were supposed to be on the same side; why did it suddenly feel so adversarial? I prefer negotiations to confrontations, but it was clear to me that we weren ’t going to be able to work this one out.

  I told him that if he wanted to be a good, supportive friend, we would welcome that; if he wanted to lend financial aid to O.J., that would be appreciated also. But I could not go beyond that. And I would not be able to answer any more of his questions.

  I had never directly discussed with O.J. the fee for my services or any additional costs that we might incur, such as those for expert witnesses. Another attorney and colleague of mine, Larry Feldman, had negotiated my fee with Skip Taft. This was somewhat extraordinary, but I didn ’t want to be haggling at the same time I was already representing O.J. My friend Feldman negotiated the fee. The case would go on for seventeen months, and my fee would end up being significantly less than I usually earned for a comparable time. The other lawyers on the case, and the expert witnesses we had contacted, sent in estimated projections of their fees and costs. Skip watched the budget and let me know when we were close to the bottom line. All O.J. ever said was, “I don ’t care what it takes, I want the best.” But he was hearing from many other voices, and he had to listen to them while he was sitting in a small cell.

  He was adamant that I was to stay on as team leader, lead counsel, or quarterback. My title might ’ve changed from day to day, but his decision stayed the same. So we began to focus our efforts on what we needed to do for the trial ahead. From the beginning, it was clear to me that this would be a team defense, which would require another trial attorney to work with me in court. It was time to decide who that person was going to be.

  In civil litigations, the team approach—usually a combination of senior trial lawyers, partners, and associates within the same firm—is used all the time. In the criminal arena, it ’s not often done, unless there are multiple defendants, in which case each defendant might have his own attorney, but they all pursue the defense together. California law states that a defendant in a capital case is entitled to two lawyers; if he can ’t afford them, the court appoints two lawyers on his behalf.

  Economics is one obvious reason why the team approach isn ’t often used for criminal defense. A second reason, probably the most compelling one, is ego. Defending a criminal case is an art, not a science, no matter what the pundits preach about trial techniques. Defense attorneys, like artists, have sizable egos. Few are interested in sharing the limelight or the decision-making process, no matter how doing so might benefit the client ’s interest.

  My own ego is in pretty good shape; after practicing law for twenty-five years, I believed that I was the best trial lawyer for this case, and from the very beginning I knew the strategic challenges it might present. We would be attacking the credibility of some members of the L.A.P.D., we would be attacking the competency and ethics of the coroner ’s office and numerous crime labs, and all the while we would be under the most intense press scrutiny of any trial since (we later discovered) the Lindbergh baby kidnapping. Given all of that, I knew that it was necessary to expand the group of experts I ’d already assembled by adding a second trial lawyer. If what I do is an art, then what evolves from it is creative, and two of us would double the creative output. I believed that any disagreements—banging heads together, raising the level of emotion, showing great passion—would result in a synthesis ultimately benefiting our client.

  The press had been speculating about who would fill the “second-chair” position, but I didn ’t like the hierarchy that term conveyed, preferring “co-counsel” instead. I thought of the team as a mosaic, with plenty of work and responsibility to go around, and everyone employing individual strengths and talents.

  As I ’ve indicated, my ideal candidate would have been a female African-American lawyer, and I found many outstanding candidates. But they were primarily academics. I was unable to find anyone with a national reputation and the kind of trial experience in high-profile cases that I thought this case warranted. And I didn ’t want to put anyone at the table for the sake of tokenism.

  For me, this decision was a difficult, gut-wrenching experience. I have so many talented colleagues around the country who may well have done justice to this case; I neither wanted to insult nor hurt anyone I respected. I also didn ’t want to sacrifice this particular client ’s good, with these particular allegations, in front of a jury that would be selected in downtown Los Angeles. With that in mind, with the information I ’d gotten in my summit meeting with my lawyer friends, and with the persuasiveness of those closest to O.J., we finally narrowed the field to half a dozen lawyers, both men and women, and ultimately came down to a choice between Gerry Spence and Johnnie Cochran. “It ’s your call, Bob,” O.J. said. “You decide.”

  O.J. had been leaning toward Johnnie Cochran for some time, primarily because of his good reputation and political ties in the black community. Not only was he a good lawyer, he also got high marks for his fine commentary on NBC during the preliminary hearing. Cochran, like me an alumnus of Loyola Law School, had been a prosecutor in the city attorney ’s office and later an assistant district attorney early in his career. Ironically, it was Cochran who brought Bill Hodgman into the D.A. ’s office in the late seventies. Well-liked by judges and prosecutors (he, too, had campaigned for Gil Garcetti), he ’d had tremendous success with downtown juries. He had also been effective in influencing changes in police procedure. in 1982, the result of one Cochran lawsuit outlawed the carotid “choke hold” that the L.A.P.D. had often used on suspects. My longtime friend Richard Hirsch, who ’d served as defense co-counsel with Cochran on behalf of a judge who ’d been accused of fixing parking tickets, felt that Johnnie and I shared a similar courtroom style. We ’d both rather speak extemporaneously than use notes, and we ’re both high-energy and positive thinkers, preferring to pay no attention when negative things are said about us. Both Uelmen and Kardashian also believed Cochran would be a good choice.

  On the other hand, some of O.J. ’s friends had been arguing for Wyoming attorney Gerry Spence, impressed by the case analysis he had done on television. Dershowitz, who didn ’t know Cochran, admired Spence, whose Wild West personality was outsize and whose case record was not only admirable but nearly perfect. Alan had monitored the Imelda Marcos racketeering case as the appellate expert (Marcos stood accused of stealing millions from the Philippines) and felt that Spence had done a masterful job in getting an acquittal. For myself, I thought his early TV commentary on the Simpson case had been extraordinary. I was particularly gratified one night to hear Gerry say, “If they had a wonderful case, they would stay home just like good, ethical prosecutors are supposed to do, keep their mouths shut, and not try this case in the press.”

  Bailey, however, was dead set against Spence. He had never liked him and disparagingly referred to him as John Wayne. In fact, Bailey had been pitching himself for co-counsel, unsubtly lobbying Taft and O.J. for the position by saying things like “Bob Shapiro is the only lawyer in the country that I ’d sit second chair for.” O.J. ’s coterie felt that Bailey had lost his fastball. In addition, his reputation for hard drinking was still alive and well. They didn ’t want him in the courtroom, they told me, but agreed that I could use him behind the scenes, strategically coordinating the investigators and the complex computer work that would be a major factor in our strategy.

  On the evening of Thursday, July 14, I met with Cochran at his suggestion at the Beverly Hills Tennis Club, where he was a member. We had known each other for twenty-five years and had worked on a case together many years before. It was abundantly clear that he wanted to be a defense attorney on this case. He was friendly and charming as always; his reputation for getting along with people was one of his strongest suits. Neither of us were in-your-face lawyers; we each had strong ties to the judiciary and the prosecution, and we believed that both of us being “good guys” would serve us, and the defense, very well.

 
; Because he had joined with Howard Weitzman to represent pop singer Michael Jackson on charges of child molestation, which the district attorney ’s office was investigating, his primary obligation at this point was to Jackson. Cochran ’s plan was to go to New York over the weekend to discuss whether or not Jackson would okay his joining this case as well. It wasn ’t a question of whether or not he wanted to be a member of the team; it was a question of whether or not we wanted to ask him to join us.

  The following afternoon, Gerry Spence flew into Los Angeles. Fifteen years before, my friend Richard Sherman, a noted criminal lawyer, had gone to Spence ’s Trial Lawyers College in Wyoming and brought back a tape of his voir dire of a jury. What I heard was revolutionary: a lawyer not only ingratiating himself with a jury but asking risky, open-ended questions that brought back amazing and telling responses. He addressed the negative aspects of his case with these potential jurors, extracting a pledge from them that these negatives wouldn ’t be held against his client when the time came to deliberate. It was sheer brilliance.

  An expert in psychology, with a strong belief that everyone is worth rehabilitating, Spence advocates forming an emotional relationship with a client, contrary to what students are often taught in law school. Critics may carp at his Western attire (no suit for him—he wears cowboy boots and a soft buckskin jacket in court), his down-home approach, and the likelihood that outside of Wyoming his style might not play. But in New York City, where more attention was paid to his wardrobe than to his presentation, he won an acquittal for Marcos. His record of civil victories is unprecedented, besting corporate giants like McDonald ’s, Aetna, and, in the Karen Silkwood case, Kerr-McGee.