The Search for Justice

by Robert L Shapiro

  As a legal junkie, I have always followed the careers of great trial lawyers, and I had always wanted to try a case with Spence. We finally met at a criminal law seminar in Aspen some years ago. We had both brought our wives, and Linell and I were amazed to find that Spence ’s wife (whom he calls Imaging) is really named LaNelle. When he came to Los Angeles to meet with me, I arranged for him to stay at the home of my dear friend Michael Klein (who was out of town), where we could have total privacy for what I knew would be a long conversation.

  From the minute he arrived, he made no secret about his desire to be involved in O.J. ’s defense. “I ’m an old trial lawyer, Bob,” he said, “and this is the case of the century. I want to be part of it.” We talked about his philosophy of trial law and the role of the team approach in a defense. “It ’s just like a jazz band,” Gerry said. “Everyone has to play together. But every once in a while someone gets a solo.”

  I had some concerns about Spence ’s limited knowledge of DNA, but he assured me he could easily get up to speed. “Bob, you have to keep in mind that the jury has to understand this stuff, too,” he said. “We have to keep it simple. Maybe we attack the science, maybe we accept the science. It ’s gotta be done in a way that ’s understandable to a jury.”

  The real drawback to Spence was his schedule: The months of August and September were out for him, because he was running his trial school at his ranch in Wyoming, with fifty lawyers who had been handpicked from around the country already committed to attend. He suggested that he would have some of the lawyers from his own firm come to L.A. to work with me and that we in turn could go to the ranch and brief him, but I knew that it just wouldn ’t work in this case. I needed someone here hands-on, every day. As much as I regretted it, I realized I couldn ’t hire him.

  Later on, when Spence was interviewed and asked about the team approach to a criminal case, he said that for him, trying a case is like Picasso making a painting: Only one person can control the brush. When Alan Dershowitz and I were in the car on the way to court a few weeks later, I repeated the jazz band versus Picasso analogy, and he laughed. “Spence must ’ve been talking about Picasso ’s jazz band,” he said.

  Johnnie Cochran got back into town the following week. Michael Jackson had given him the go-ahead to join the Simpson defense. On July 1, we met at my office. I told him that I was authorized to bring him on board. He accepted enthusiastically.

  We never talked in terms of lead counsel and second chair; it was, to me, a joint effort. Initially I was referred to in the press as the lead trial lawyer; within a couple of days I was being referred to as co-lead counsel. I had no problem with our relationship, since it fit my concept of how we would work together. Fittingly, we used an analogy to football. There would be a team owner and part-time coach: O.J. Then there would be the quarterback: me. I would be O.J. ’s Joe Ferguson, who had been his quarterback on the Buffalo Bills. And then the quarterback would hand off to somebody as good as O.J. Simpson, and that would be Johnnie Cochran.

  In that first meeting, Cochran and I discussed the issue of race, and our hope that a black lawyer and a white lawyer working together on behalf of another black man would be a good message to send. He then told me that because his law practice was primarily civil, and because he had a great deal of legal and clerical support in his offices, he would continue to maintain his civil calendar, which produced substantial income, during the Simpson trial. We shook on our new relationship, agreeing to keep our collaboration confidential (not even telling O.J. and the other members of the team that the decision was definite) until we got to court on Friday, July 22, for O.J. ’s arraignment. However, NBC reported the night before that Cochran was definitely joining the defense. I supposed it was because he ’d told them he wouldn ’t be commentating for them anymore.

  Friday morning, Cochran and I met at my office and we went together to the courthouse, where two or three hundred people, not to mention satellite dishes and sound trucks, were waiting for us. Eight uniformed officers tried to cordon the people off, but the cameras and microphones came at us as we walked into Judge Cecil Mills ’s courtroom.

  Judge Mills took the bench promptly at 9:00 A.M., announcing that his selection to hear the case was Superior Court Judge Lance A. Ito. This came as a surprise to me. Judge Paul Flynn, a law professor and former assistant U.S. attorney, had been the original choice, and we were comfortable with him. However, I was told that at the last minute, Ito had lobbied for the position. Speculation was that since Judge Flynn belonged to a country club that had previously been restrictive, his presiding over the case would ’ve been either objected to by us or a potential cause of embarrassment to the superior court. In my opinion, neither would ’ve been the case.

  Judge Ito had been the presiding judge on the Charles Keating securities fraud trial (which Bill Hodgman had successfully prosecuted) and afterward had been named Trial Judge of the Year by the Los Angeles Bar Association. I ’d had previous experience with him, the most recent, of course, when I presented our motion to recuse the grand jury; and I thought that not only was he very smart, he was also the most desirable on the list of predominantly pro-prosecution judges.

  Almost every judge appointed in the state since Ronald Reagan was California ’s governor has been a former prosecutor, either from the district attorney ’s office or the U.S. attorney ’s office, and for that reason it ’s not unusual to run head-on into a pro-prosecution agenda on the bench. Governors reap political capital when they appoint “tough” judges who impose maximum sentences and aren ’t swayed by the “legal loopholes” that the rest of us call the Constitution. Judge Ito, I believed, could be counted on to be balanced.

  Judge Mills made sure that we all knew that Ito was married to an L.A.P.D. captain, Margaret York (the highest ranking woman officer at the time). If any of us felt that fact would be prejudicial to our case, we could request another judge. However, I said that Judge Ito was acceptable to us. I was later to learn that Captain York and her former police partner, Helen Kidder, had been the original inspirations for the television show Cagney and Lacey.

  Judge Ito proved to be a man of great contrasts. A graduate of UCLA and UC Berkeley ’s Boalt Hall Law School, he certainly had the academic credentials for excellence on the bench. His physical appearance and demeanor sometimes suggested harshness, but his heart was filled with compassion, learned from his family ’s experiences in the Japanese internment camps in California during World War II. In fact, the judge wears his heart on his sleeve, treating people with patience and respect, expecting that common courtesy to be returned. He dislikes controversy, and throughout the Simpson trial, whenever he had to sanction a lawyer for unprofessional conduct in the courtroom, he later either apologized or said, “I don ’t want this to be personal.” On occasion he would retire to his chambers for his soon-to-be-famous “ten deep breaths,” and then return as if nothing had happened. He strove for balance and pragmatism. I would come in each day and say, “Good morning, Your Honor.” His response was always, “So far.”

  That Friday, July 22, I finally saw the change in O.J. ’s demeanor that I had been looking and hoping for. No longer on suicide watch, no longer on medication, he seemed to have passed through the initial period of depression and shock. His eyes were clear and his back was ramrod straight when the judge asked him how he answered the charges against him. “ Absolutely, 100 percent not guilty,” he said in a strong voice. It had been forty days since his arrest, and my client seemed at last the strong and confident O.J., the one we needed at the defense table. The next few weeks, which to our dismay would turn into months, would be taken up with legal procedures, including hearings, motions and countermotions, debates on blood typing, evidence inclusion and exclusion, and, eventually, the selection of the jury. Each step is part of creating a trial ’s road map, what one publication called the “pre-trial jockeying for position”—not the first time we would hear a sports analogy, as news anchors and commentators bega
n to refer to the trial as if it were a game, with the score being posted daily.

  After O.J. was returned to lockup, Johnnie and I left the courthouse through a throng of cheering well-wishers, an army of photographers, and some new and somewhat bizarre additions: noisy hawkers of customized O.J. T-shirts and baseball hats, someone from the Jewish Defense League yelling slogans, and people from the Women ’s Action Coalition who were walking around in masks made to look like Nicole.

  On Saturday, Linell and I slept late, then spent the rest of the day—the first in a long time—just resting, reading around the pool, and throwing the ball to the dog. The kids weren ’t home; Brent was at a friend ’s house for the night, and Grant was due in the next day from ice-hockey camp. We ordered out turkey from Koo Koo Roo ’s, a restaurant that kept us all in protein throughout the entire trial, and we rented a video. It was, I knew, a small calm between storms.

  Sunday morning, July 24, Johnnie Cochran and I met at the county jail, he in a suit, I in jeans and a Connecticut State Police baseball cap I ’d gotten from Henry Lee. We visited O.J. together on the third floor. He was behind glass, and the three of us had to converse on phones, O.J. holding one to each ear so he could hear us both.

  In an effort to fill Johnnie in, we retraced what was now familiar ground, with O.J. repeating over and over that more than anything he wanted to be with Sydney and Justin. Although I could see that he was pleased to hear of polls reporting that 60 percent of the black population and 30 percent of the white population believed he wasn ’t guilty, I knew he wanted 100% of both populations to believe it.

  After I drove Cochran home, Linell and I went to the airport to pick up Grant from hockey camp; it would be a quick turnaround for a ten-year-old, since he was scheduled to check into Magic Johnson ’s basketball camp that very night, but this was a schedule he had dreamed of for months. As we drove, I received a call on the car phone from Peter Neufeld in New York, stressing how important it was that we get access to the blood samples and duplicate the tests. Neufeld and Scheck wanted to examine further the possibility that there had been tampering. I thought our argument to the jury should be that the prosecution ’s evidence had been improperly collected and preserved, was quite possibly contaminated, and therefore shouldn ’t be admissible. Neufeld told me that Scheck was in San Diego and would meet me at the office the next day so we could hash this out further.

  When we arrived at the basketball camp in Thousand Oaks, I went with Grant for his late check-in. As we walked, the kids already assembled for drills suddenly started a “Go O.J.!” cheer. In minutes, some of the coaches had walked over to shake my hand and wish me good luck. Grant just looked down at his feet. I hoped it was only because he was self-conscious at checking in late, but I suspected that part of his discomfort was the growing hoopla.

  Chapter Seven

  Everyone who came into the courtroom (especially after seeing it on television) was shocked by its intimate size. The spectator section (capacity: fifty-eight) is directly behind the lawyers ’ counsel tables, which in turn are less than a dozen feet from the judge. On their side of the room, the prosecuting attorneys can literally reach out and touch the jury. We presented a motion to switch sides midpoint during the case, so that we could take our turn being close to the jury. To no one ’s surprise, this unprecedented motion was summarily denied.

  Across the room from the jury sits the bailiff at a desk, right next to the defense attorneys. Just behind the bailiff is a door that leads to the prisoner lockup area.

  The lockup, where defendants in custody wait as their case is being called, is a small holding cell that serves two courtrooms. A dank and somewhat foul-smelling room, it has a toilet with no seat, a sink with no soap, and benches carved with the most profane graffiti imaginable. Since O.J. was in a special keep-away status for his own safety, no other defendant ever shared the holding cell with him. If the lawyers needed to speak with him, he would be taken to the adjacent attorney room, which was about five feet square, furnished with two chairs and a small table.

  There ’s a steel sliding door that allows entrance into the cell, and just beyond it is a small foyerlike room for four people, with another steel door behind that for added security. Once inside the holding-cell area, attorneys must then pound on the wall to be allowed back into the courtroom.

  From the first day, courtesy of Judge Ito and the sheriff ’s department, we arranged that O.J. would be able to change from prison garb into civilian clothes. He would be brought to court in his jail blues and tennis shoes and go into the second five-by-five room to change. Bob Kardashian brought O.J. ’s clothes in each morning—two suits and four or five ties to choose from. O.J. was always concerned about looking sharp, and just before we ’d go into the courtroom, we ’d check that his tie was straight and his collar down. Guy Magnara, the sheriff ’s deputy in charge of Ito ’s courtroom, who was unfailingly kind and pleasant, would come back into the holding cell and tell us when the judge was ready to enter the courtroom. At that point, the attorneys would walk into the courtroom, and O.J. would come in behind us. He was handcuffed and wore a steel chain around his waist, but these restraints would all be removed before he entered the courtroom, as if to give the appearance that he was not in custody.

  Our motion, requesting that the prosecution give us half of their blood and tissue samples, so that the defense could run its own DNA tests, was scheduled to be heard on July 25, Keno drove us all—Barry Scheck, Johnnie Cochran, Sara Caplan, and me—to court for the 9:00 A.M. hearing. As was now routine, O.J. joined us at the table, taking notes on his legal pad and asking the attorneys questions throughout the hearing.

  The hearing, our first since Judge Ito had been assigned the case, was three hours long and contentious from the first five minutes. Marcia Clark was strongly opposed to sharing any of the blood-sample evidence at all, constantly referring to it as “the People ’s evidence” and suggesting that if a portion of it was given to the defense for its own testing, it would “deprive the People of their right to be fair in the prosecution.”

  Because prosecutors are the representatives “for the People” they often operate with a certain arrogance, speaking with the moral authority that they, and only they, carry the torch of justice into the courtroom. It is their courtroom, where their evidence is presented, and where defense attorneys (and defendants) often seem to be admitted grudgingly, like distant and somewhat disreputable cousins. I was a prosecutor for three years, so I know where the attitude comes from and how easy it is to acquire. It ’s my experience, however, that arrogance never serves anyone well; in this case, the prosecutor ’s arrogance would prove to be an important factor for the defense.

  We countered Clark ’s objection by arguing that the forensic evidence belonged to the court, and that if these tests were to have any validity, we needed equal access. Under California law, the defense is entitled to perform its own tests—if the sample is large enough to be divided. Initially Ito agreed and granted our motion. Clark then came back with an impassioned plea that evidence “was going to be taken out of our hands forever… taking away prosecution evidence and giving it to the defense.”

  After some consideration, Judge Ito reversed himself and ruled that our defense expert, Dr. Edward Blake, could observe the prosecution ’s testing (at Cellmark Diagnostics lab in Germantown, Maryland) and could also “cut” and keep 10 percent of each sample in case more testing was necessary in the future. Our testing, if we ultimately chose to do it, would be performed at a private lab in Northern California supervised by Dr. Blake, a respected forensic scientist and close colleague of Gary Sims, the senior criminologist at the California Department of Justice.

  And so the pattern began. Ito, in his attempts to remain fair, began his battle with indecisiveness. If the prosecution screamed loud enough, they would not only get a rehearing but possibly a reversal. It ’s certainly no disgrace when judges reverse themselves upon finding their rulings in error, but over the term
of the trial, Ito ’s willingness to reverse looked like indecision. On the other hand, with the television cameras in the courtroom, Ito was charged with making instantaneous decisions in front of the watching world. And because of the rules of judicial conduct, he didn ’t have the luxury that the rest of us did of later explaining and defending decisions that were often criticized and always second-guessed.

  I was glad that Barry Scheck was with us during this session, although his style was a little more in-your-face than I might ’ve wished. Ito took great stock in intellect and legal ability, and he immediately recognized Scheck ’s expertise in this complicated field. Marcia Clark appeared to be paying careful attention to Scheck ’s comments as well. He would prove to be even more formidable in court.

  After the trial had ended, Scheck recalled two things about this, his first encounter with Judge Ito. One was Ito ’s comment that while he knew this was going to be a hard-fought battle, he also knew that we would all be very professional and responsible. He hoped, the judge said, that we would all be able to go out to dinner together once the trial was over; in fact, a restaurant in Pasadena had already volunteered to host us.

  The second thing Barry remarked upon was hearing Ito say, “I ’m glad I have this case.”

  “Most judges might have viewed this particular trial as an awesome responsibility and been a little apprehensive,” Scheck recalled. “He seemed so confident, so energetic about it.”

  While in the courthouse presenting that first DNA motion, we heard a story that after my cross of Dr. Golden the previous week, the medical examiner allegedly brandished something that seemed to be a gun in the coroner ’s office, yelling, “This is all you need to take out six or seven lawyers!” I didn ’t know whether to be amused or appalled.

  Over the past few years, jury consultants have been used consistently in major civil cases without much knowledge or fanfare; it ’s only recently that their talents have become utilized in criminal cases as well. First, most clients can ’t afford the luxury of paying for consultants, and second, criminal lawyers fancy themselves experts in being able to read people and pick their own juries. This is especially true on the prosecution side. I ’ve heard many prosecutors, when offered the service of experts, say, “I don ’t need anybody to tell me how to pick a jury.” In fact, my guess is that ’s what went on with the district attorney ’s office in the Simpson case. Although they had the help of DecisionQuest ’s Don Vinson, one of the leading experts available, they didn ’t seem to pay much attention to what he had to say. During jury selection, Vinson was in the courtroom for only a couple of hours; after that, we didn ’t see him again. We heard reports that he ’d advised the prosecution against building their case on domestic abuse, cautioning them that black women jurors often have conflicting, defensive, and even occasionally protective reactions when a black man is being accused of that behavior.