The Search for Justice

by Robert L Shapiro

  That day, O.J. had a few things to say on the subject of violence and the way the media had been portraying him. Anyone who knew anything about football would tell you that he ’d never been an attack player. “In eighteen years of playing football,” he often said, “I only had one fight—and that ’s just because somebody jumped on my old friend Reggie McKenzie.”

  On Monday, August 8, we held a meeting of all lawyers and investigators in the office. The people who were out of town were linked to the rest of us by speakerphone. We finalized the decision on jury consultants; as I ’d hoped, we hired Jo-Ellan Dimitrius. Of the three groups we ’d been reviewing, Jo-Ellan ’s was based in California, and had a great deal of experience with local juries.

  Johnnie broke into the jury consultant discussion. No one knew downtown juries like he did, he said. After all, it was his jury expertise that had gotten Todd Bridges off. Bridges, a former child star charged with murdering a drug dealer, was acquitted of those charges in a very highly publicized case that had contributed to Cochran ’s reputation.

  That night Cochran and I spoke briefly on the phone, primarily about the lawsuit that Mark Fuhrman was talking about filing against us. I had discussed the matter with Larry Feldman and Tony Glassman and decided not to respond. But Johnnie had prepared a lengthy response and had engaged his own lawyers to send it out.

  “Johnnie, I don ’t think anybody on the team should write anything or file anything without running it past me first,” I said. “We have to stay cohesive, and focused, for the good of the case.”

  “This isn ’t about O.J., Bob,” Johnnie told me. “I have to protect myself. You don ’t have to worry about me, I know what I ’m doing. I wasn ’t even involved in the case at the time.”

  The next day, Captain Scaduto called from the jail; he ’d heard through the grapevine that someone in Cochran ’s office—Carl Douglas, maybe—was filing a motion concerning O.J. ’s complaints about the poor condition of the jail. “I thought we were going to try and work this out between us,” Scaduto said.

  I assured him that nobody was filing anything, and we were of course willing to wait a reasonable time to see that the problems at the jail were addressed to everybody ’s satisfaction. After I ’d spoken to Scaduto, I called Johnnie and requested in the strongest terms possible that Carl proceed no further on whatever it was he was doing. “I have thick skin, Johnnie, so you can argue with me on issues if you want, I have no trouble with that. But you and I have to speak and act with one voice on legal procedures and defense team strategy.” Happily, he agreed.

  That night I had trouble sleeping for the first time since I ’d taken on the Simpson case. I hadn ’t eaten much all day, I ’d canceled my boxing session with Jason, my trainer, and I tossed and turned much of the night. When I abruptly awoke the next morning at 6:15, I felt anxious and jumpy. I ’d never been either a plaintiff or a defendant in a court action, and now I was being threatened with a libel suit. It was all a little unsettling.

  On August 1, we conducted a hearing to bring Judge Ito up to date, to let him know that we (the defense and the prosecution) were making good progress on discovery; that is, we were each responding to the other ’s request for information. There had been a request from the press asking that they be allowed to see photographs introduced at the preliminary hearing, in particular the coroner ’s photographs of Nicole and Ron Goldman. They evidently wanted only to see and then describe the pictures, not reproduce or broadcast them. I argued that while we had a right to a fair trial, the press had no corresponding right to try the case in the media. Ultimately, ruling that even the descriptions of the pictures would be prejudicial to the case, Ito kept the photographs sealed.

  Afterward, Bill Hodgman, Marcia Clark, and I met in chambers for about forty-five minutes, talking about the different effects the case was having on all our lives. The story about my work related to the shooting of her ex-husband had come out, and we agreed that it was completely bizarre—a real case of truth being stranger than fiction. We were doing the jobs we ’d always done, yet our personal lives didn ’t seem to belong to us anymore. Complete strangers commented on Marcia ’s hair, Hodgman ’s manners, my suits, even my tan. All of our children were being affected by our constant presence on television and our absence from home. Brent was acting out even beyond what I ’d expected once he hit adolescence, and Grant ’s nightly question was “When will this be over?”

  We talked about DNA for a few minutes. To date, we were dealing with more than one hundred samples, and the last batch of discovery material had come to nearly two thousand pages. In one memo, I had categorized it as “ecologically improper material.”

  Marcia and Bill weren ’t optimistic about the results they were going to get, since RFLP testing wasn ’t particularly successful with leather, asphalt, or concrete. “It would be a happy day if the results exclude O.J.,” Marcia said. “Then we could just dismiss the case and move on.”

  I was pleasantly surprised by that comment. I guess we were all a little weary. “I ’m having quite a time running my bureaucracy,” I told them.

  “Our bureaucracy is bigger and much harder to deal with than yours is, Bob,” joked Hodgman. It was the most relaxed discussion I ’d had with them since the case had begun.

  On Wednesday, August 10, I got a call from NBC ’s Don Ohlmeyer, who was somewhat dismayed at his network ’s coverage of the case, which he felt had been pretty negative. Ohlmeyer had been to see O.J. often, and on one visit he ’d even offered to help pay the $30,000-per-month overtime charges so that he could move to a more comfortable cell. O.J. refused the offer, saying that he couldn ’t allow Don to do that. “Isn ’t it nice that I have a friend like him?” he said to me.

  O.J. was going to Cedars-Sinai Hospital the following day, for the long-delayed lymph node biopsy. The surgery, an outpatient procedure, was at his expense; the trip to the hospital alone, complete with three unmarked cars and five special deputies, would cost two thousand dollars. He was understandably nervous but trusted Dr. Huizenga. He ’d been thinking about the results of the test, about what he ’d do if they showed positive for cancer. His greatest concern was for his children, especially the two little ones. At the end of that month, he would sign over guardianship of Sydney and Justin to Louis and Juditha Brown, the term of guardianship to last only “until his release.”

  When I left the office that day, KCBS Channel 2 anchor Harvey Levin was waiting for me out in the parking lot. “Bob, can I get you on camera?” he asked.

  “Sure you can,” I said, smiling, and then gently took the microphone out of his hand. We did a quick Abbott and Costello routine, where I was the interviewer and Levin was the subject. I peppered him with questions about the negative press coverage we ’d been getting.

  “Hey, I think I need a lawyer for this,” he said, laughing.

  Handing over the microphone, I changed positions with him and stood in front of the camera. “Well, Harvey, business is slow today,” I said, “so I ’m available for hire.”

  He didn ’t want jokes, he wanted something solid. “Just give me ten seconds, please,” he asked. “Anything you ’ve got, on the record.”

  I shook my head. “I ’ve got nothing to say about anything having to do with this case. Absolutely nothing.”

  The next morning, the phone rang at six-thirty. It was Dr. Huizenga. Although it would be a while before we ’d know the results of the tests (which ultimately proved negative), he said the procedure itself had gone well, although the National Enquirer was supposedly scaling the walls of Cedars-Sinai.

  O.J. called later that morning when he returned from the hospital. He was tired and irritable; he ’d been awakened in the jail at three-thirty that morning, at four they handcuffed him—from behind—but then didn ’t take him out of the cell to leave for the hospital for another half-hour. He couldn ’t sit down on the bed, he couldn ’t go to the bathroom. And when he came back from the hospital and went to make his phone calls, some
body accidentally slammed the iron gate on his hand.

  “It doesn ’t hurt right now,” he said. “I ’m probably still loaded with anesthetic.” He was upset that the early news reports of his trip to the hospital said he was suffering from hemorrhoids. “They can ’t even get that right,” he said, disgusted. “News is just entertainment to them.”

  Chapter Nine

  In August, we gave O.J. our copy of the police murder book to examine closely. If he testified, he had to be solid on the facts. As the most important person in the case—the one who knew more about his relationship with Nicole than anyone else did—he would be able to spot inconsistencies and errors, which we could then point out to a jury.

  He was unhappy with our pursuing avenues of reasonable doubt. Understandably, he wanted to be proven innocent. That would have required our producing proof of who committed the murders. That was not the defense ’s obligation, and it was beyond our resources.

  After this meeting, I heard from Sara Caplan that she ’d been called to be present during a search of O.J. ’s business office by four deputies and, I was happy to hear, a Special Master. The search warrant was specific to material dating from January 1 to July 17, 1994. When the deputies discovered brochures on domestic abuse in O.J. ’s files—brochures that he ’d been given while on probation—Sara promptly declared that these were beyond the scope of the warrant and couldn ’t be seized. The Special Master agreed. That material became the “mystery document” that Cathy Randa later shredded—which of course made it into the tabloid headlines as something dire and sinister.

  In late August, we met with Jo-Ellan Dimitrius about the questionnaire we would prepare, with the prosecution, to give to the prospective jury members. We had a tentative draft of the questions we wanted to use, based on responses that Jo-Ellan had gotten from focus groups. In her meetings with O.J., she was getting to know him and becoming familiar with the themes of his life—his relationship with Nicole, his feelings for his children, the unlikelihood that he would have committed these crimes.

  I attended one of Jo-Ellan ’s focus-group sessions in Santa Monica. I sat with her behind a glass wall, watching a facilitator work with a racially mixed group of nine people, reflecting what we believed the jury pool to be. I was fascinated as I heard their responses to questions ranging from “How many people here have heard of O.J. Simpson?” (unanimous) to “What do you think the trial verdict is likely to be?” (mixed). Many of them were familiar with the Simpson preliminary-hearing proceedings and understood some of the legal terms and the issues of evidence as well.

  They weren ’t particularly concerned with what they ’d heard of the 911 tapes, although they didn ’t think the prosecution should ’ve released them to the news media. The tapes did show that O.J. had a temper, but, said one woman, “What couple hasn ’t had a really bad fight or two?” As for Mark Fuhrman, although he might ’ve been a racist, no one believed he was a bad cop, and jumping over the wall at Rockingham made him seem brave and daring to them. They thought the DNA evidence was the strongest part of the D.A. ’s case, although they said that if O.J. ’s Bronco was used after such a violent murder, there should have been blood soaked all over everything. While they had no particular criticism of the coroner ’s office, they were concerned about the pivotal role in the evidence-gathering part of the investigation that had been played by neophytes or trainees.

  While they didn ’t expect O.J. to testify at the trial, they did say that they would “feel better about him if he did.” Not surprisingly, they showed a fundamental confusion about the role, or mission, of the defense. In order to keep O.J. from being convicted, they said, we either had to identify the real killer or prove somehow that he had been framed. And they were familiar with the dynamic between the defense and prosecution. “Marcia Clark ’s going to be really disappointed if it turns out that someone else did it,” said one man.

  Linell and I had been invited, along with the boys, to the wedding of Miko Brando, Marlon ’s son. The wedding and reception were going to be held at Michael Jackson ’s Neverland Ranch, which, although it ’s almost as secure as the Pentagon, is nevertheless the subject of constant press scrutiny, with helicopter flyovers the order of the day.

  A few days before we were scheduled to go, I had been the subject of a somewhat negative piece on local television, commenting on the fact that since I ’d taken on O.J. ’s case I had also gone with my family to the World Cup soccer matches, the glittery and well-publicized opening of a Los Angeles country-and-western—themed restaurant, and the James Toney fight in Las Vegas. Linell was upset not only at the implication—that instead of taking care of business, I was celebrity-showboating—but also because these were events and activities that we would ’ve attended in any case, long before I was associated with O.J. Simpson.

  “I don ’t think we should even go to Miko ’s wedding now,” said Linell angrily. “Our being there would probably wreck his special day. I think I ’m going to take the kids to Lake Tahoe and stay there until it ’s time for them to come back to school. It ’s all getting really ridiculous now, Bob. Cameras everywhere we go, people pointing and yelling at you, practically hip-checking me and the boys out of the way to get to you.”

  I knew there wasn ’t much I could say that could take the edge off the way she was feeling. Our quiet dinners out often turned into social events, our social events became roundtable discussions of the Simpson case, complete with confrontations and critiques of my performance to date. At one dinner party, Tina Sinatra took me outside and read me the riot act on the terrace. “How can you represent him?” she demanded heatedly, not waiting to hear my answer. “Isn ’t this hypocritical, what you ’re doing?”

  And all the while, the other party guests were trying not to listen, and Linell was trying not to notice that once again the focus was on me and the case. She was stuck in the awkward position of being my most loyal defender and protector at exactly the same time that her own life, because of me, was getting more and more uncomfortable.

  “Well,” I told my wife, “remember when I told you a long time ago that I didn ’t want to be famous? That I just wanted to be known for being a good lawyer? This is why.”

  “Back then, we didn ’t know about this,” she said. “This, nobody could have predicted.” Ultimately, she and the boys stayed at Lake Tahoe, and I went to Miko ’s wedding alone.

  As the tension surrounding jury selection and pre-trial preparation began to rise, we were plagued by a series of leaks to the press, and the leaks seemed to be coming from all directions. The TV tabloid Hard Copy ran a story about Marcia Clark ’s former mother-in-law, Gaby Horowitz ’s mother, who lived in Israel. She had some bitter feelings about her ex-daughter-in-law and was more than willing to make disparaging remarks about Marcia—including that she was a racist—on camera. When I found out that our investigators were privy to this information, I was appalled to think that there was a possibility it had been leaked from our office. Anyone who knew Marcia Clark, as I had for two decades, knew that any suggestion that she was a racist was so far from the truth as to be completely laughable.

  Pat McKenna and John McNally were quick to assure Bill Pavelic that they didn ’t leak anything to Hard Copy, or to anyone else, and told him that they had very strong reasons to believe that our investigator Barry Hostetler had done it. Skip Taft, who had been monitoring the budget, had already suggested that we could afford only three investigators. Letting Hostetler go, it was decided, was appropriate given the circumstances. It would be six months before we learned that the leak had in fact come from inside, though not from Hostetler.

  In August, there were both television and newspaper reports that lab tests on the strands of hair in the blue knit cap found them to resemble O.J. ’s hair; in addition, one television reporter said that the item in the “mysterious envelope” still in the court ’s custody was a new knife, with its original price tag. The first piece of information could only have come from the prosecut
ion; the second one, the reporter said, “was confirmed by a defense source.”

  Judge Ito told us in chambers that he was particularly angry to have learned key information in the case while he was taking a shower and listening to the radio. His response to the leaks was to draft a gag order. “A trial court not only has the authority but the affirmative duty to protect the right to a fair trial,” he wrote. “Given the amount of media interest and coverage that this case has ignited, the court must use its inherent authority to control the judicial procedure.” He wanted all motions sealed and not made public until they were argued in court. Prosecution and defense lawyers were not to comment on anything that might come before the jury, any evidence or information specific to guilt or innocence. Ito went on to say that violation of the order would incur sanctions, although he didn ’t specify what those sanctions would be. They could range from monetary fines to charges of contempt.

  Although some members of the ACLU and the press corps thought Ito ’s order was harsh, my own response was that an information embargo was long overdue. There had been leaks since the beginning, not the least of which was the “Simpsonis-guilty” drumbeat that came regularly from the district attorney ’s office. However, because I had always maintained a comfortable relationship with the press, I was often the one assumed to be responsible for the leaks. It would be nice for the playing field to be not only level for a change, but regulated by the judge. Now the challenge would be to keep my own troops quiet.