The Search for Justice

by Robert L Shapiro

  I did, however, object to the fact that we weren ’t informed of the existence of this material until very late in the game. “Oh, yes, you were,” Marcia Clark argued in court, gesturing at me with a document. “It was in the property report.”

  Glaring, I took the document out of her hand and read it. “In this report it makes no mention of the notes from Nicole,” I said adamantly. The newspapers later reported what O.J. whispered at the table. “Clark ’s busted, busted.”

  There seemed to be a new Marcia Clark in court that day. Her clothes were different, her hairstyle was different. Overall, her demeanor had been quieter, calmer, almost as if she ’d been taking tranquilizers intravenously. Obviously, she ’d taken to heart what some of the participants had said at the mock-trial weekend in Arizona. However, our exchange over the videos and the notes brought out the Marcia that had been my sparring partner over the past months. My continuing suggestion that procedure wasn ’t being followed by the prosecution, that the defense was somehow being short-changed, made her noticeably angry. She seemed so intent on finding flaws in defense strategy that I wondered how much attention she was paying to her own.

  Bill Pavelic, our investigator, kept reminding me that the district attorney ’s office hadn ’t turned over to us the police logs and tapes for June 13, Some months before, he ’d heard from a source inside the L.A.P.D. that Fuhrman and his partner, Detective Phillips, were using a department-issued cellular phone in the early morning hours of June 13, This source contended that Fuhrman and Phillips called from outside O.J. ’s house to the West L.A. police station, where Sydney and Justin had been taken, and asked the watch commander to find out from the children where O.J. was. Pavelic ’s source reported that the kids had said something to the effect of “out of town for business.” Therefore, contrary to what they ’d testified in the preliminary, the police knew quite early that O.J. was not at Rockingham. This meant the police had no reason to scale the wall in order to notify him or protect him from danger. Pavelic was adamant that we obtain the watch commander ’s log and the cellular phone records to document this call, because his informant was suggesting that it was made before the robbery/homicide detectives, Lange and Vannatter, were in the picture—which gave Fuhrman time to manipulate evidence.

  “Hodgman knows how important this stuff is,” Pavelic fumed, “and he and Clark are deliberately withholding it.”

  I told him there was a more likely explanation. “It ’s the L.A.P.D. that doesn ’t want us to have it,” I said, “not the D.A. That ’s why they ’re stalling. I ’ll bring it up before Ito again, he ’s already told them at least once to turn it over. Don ’t worry, Bill, our chance will come.”

  In September, to celebrate Brent ’s fourteenth birthday, Linell and I took him and thirty of his friends to play paintball at a concession out in the hills of Newhall, about thirty-five miles from our home. Paintball is where you get all dressed up in camouflage combat gear, form teams, and run through the fields and hills playing guerrilla warfare—with mock guns filled with bright, splattering paint.

  Linell and I and the kids all rode out to Newhall on a chartered bus, and once we got there we had a twenty-minute hike up a dirt road. As we got closer to our destination, I was astonished to see that TV satellite trucks had arrived there before us. A reporter called out a question, but I shook my head and turned away, heading instead into the building with the kids to get fitted out with our gear and fatigues and instructions. Linell, ever the diplomat, walked over to the reporters and said, “Please. This is a private party, for the kids. Nobody ’s going to say anything to you today about the case, Bob ’s not going to give you anything. There ’s nothing going on here about O.J. So won ’t you please be kind, and respect our privacy?”

  As we left that afternoon, the reporters tried again to talk to the kids, asking their names, asking what their parents thought of the case. “Does your dad think O.J. is guilty?” one guy shouted. That night, Linell ’s civilized request for respect and privacy for the kids showed up on the local news.

  Chapter Eleven

  At one point, Judge Ito considered doing something very unusual: asking jurors to sign a contract, stipulating that they would not sell their stories nor profit in any way from their participation in this jury for six months after the verdict. I could certainly understand his motivations; we still were weeks from actually beginning the trial, and every day there were two, three, four stories about the inner workings of both the defense and prosecution teams, on television and the newspapers. I felt that giving jurors a contract to sign would have a chilling effect and compromise their autonomy at the very beginning of what would no doubt be a difficult task for them. Some might even want to consult with lawyers before signing—or, worse, during the case itself, if they were surreptitiously approached by reporters or publishers. Ito wisely decided not to ask for contracts.

  I was learning that behind the scenes Lance Ito was a very complex, intense man. He arrived at court at six-thirty in the morning, the first one there and always the last to leave. His chambers looked like the archives of a pawn shop, with memorabilia in every nook and cranny. We had in common a passion for pens, and Ito proudly displayed his collection to me, telling me where I could find collectible pens at good prices. Anything that came in relative to the case—cups, pennants, buttons, posters, even the most devastating editorial cartoons—found a niche in Ito ’s small office, and he gave away as much as he kept. In one instance he passed along to me a baseball card with my picture and stats on it; in another, he showed us a button that read, “O.J. Defense: No Comment.”

  The judge prepared diligently for the case, putting in three months preparation for the DNA alone, and his books—on law, science, and any number of other subjects—were strewn everywhere. In the center of all this chaos were two computers on which he typed his daily rulings, a printer, and a complete set of all the evidence in the Simpson case. His desk was piled high, but he could always immediately find whatever he needed.

  Initially, Judge Ito took pride in reading five newspapers a day, but midway through the trial, he stopped. “I wouldn ’t read a word of what they ’re printing about all of this,” he said disgustedly. His finest moments were when both the defense and the prosecution were displeased by one of his rulings. “I must be doing my job,” he ’d say.

  Ito is a great storyteller, and he loves a good joke. We told a lot of them in chambers, often about the case, frequently at our own expense, and he gave as good as he got. He was a good sport about Jay Leno ’s Dancing Itos. Marcia Clark, who had studied dance, wasn ’t nearly as sanguine about the dancing Marcia.

  Near the end of the trial, Ito gave me one of his pogs, the cardboard disks that kids trade and play with that resemble old milk-bottle caps. One side of the pog read “guilty,” the other “not guilty.”

  The following is a conversation I had in my car with Johnnie Cochran, on the way to the courthouse September 26, the first day of actual jury selection:

  RLS: Good morning, Mr. Cochran! How are you today?

  JLC: Good morning, Mr. Shapiro, I ’m just fine, thanks.

  RLS: I ’m taping this, if you don ’t mind, Mr. Cochran.

  JLC: [laughing] Don ’t mind at all. Got enough newspapers in here, Bobby?

  RLS: [laughing] Oh, shut up. Hey, did you get a good night ’s sleep last night, Mr. Cochran?

  JLC: I did, I certainly did. I worked hard yesterday, got enough sleep last night, and I ’m ready to go. How about you?

  RLS: I ’m ready to go, I feel great.

  JLC: Then we ’re both ready. A couple of clever minds. The prosecution better be ready, too.

  What greeted us at the courthouse was simply incredible. Although we had been mobbed by reporters before, now the chaos was somewhat more organized, with red cones out in front and two L.A.P.D. officers standing guard. These were the early days of what came to be known as Camp O.J. By the time the trial actually began, the staging for lights and cameras wou
ld be nearly five stories high, and the parking lot would be filled with large vans for the reporters, anchors, and television crews.

  We walked in greeted mainly by cheers and a few shouts—no boos yet. There were cameras behind roped-off areas stretching one hundred feet on either side of the sidewalk. There was a sea of still photographers, video crews, radio and television announcers, lookie-loos, shouters, and souvenir vendors creating a noisy, somewhat gala carnival-like atmosphere. Like a medieval mob about to witness a beheading, they had all come to see if a man would be convicted of two brutal murders and sentenced to life imprisonment without the possibility of parole.

  Inside the courtroom it was eerily silent. Court cameras were covered in dark fabric, and the public was not admitted. Only three press representatives were present. The judge had made an unprecedented decision of allowing us to walk in with O.J., rather than having him come in through a separate door from the holding cell. Even though everyone in the courtroom knew he was in police custody, he was allowed to have the appearance of someone who was not. He walked in first, followed by me, Cochran, and Jo-Ellan Dimitrius.

  The room seated 250 potential members of the jury. In that group were some who would ultimately be on the jury, and the awesome nature of their task—and ours—was palpable. The security was subtle but obvious; there were six or seven armed sheriff ’s deputies in uniform. I recognized another six undercover deputies, and there were probably more.

  At first, O.J. was in an upbeat mood, positive and energetic, ready to go forward. While all eyes were on him, however, his were on Ito, as the judge stood at the podium and made his opening remarks, explaining that he needed the help of everyone in the room to find a jury. When he announced that the trial would go through at least to February 1995, everyone heard O.J. moan, “Oh, God, no. My kids, my kids.”

  Judge Ito explained to the potential jurors that he had good news and bad news. The bad news was that the jury questionnaire that the defense and prosecution had ultimately agreed upon was 79 pages long. There were 294 questions, 12 alone having to do with potential jury members ’ comprehension of the science of DNA. The good news was that the original proposal had been 125 pages long. The selection process, he warned them, would be painstaking, and it might take some time. Ultimately, it would take five weeks.

  During the voir dire process, we were seated at a small conference table. I was eye-to-eye with Marcia, which wasn ’t particularly enjoyable for either of us. O.J. was at one end of the table, and Ito was at the other. Cochran was next to me and JoEllan next to the judge. Each prospective juror would come in and sit down, directly across and six feet away from an accused murderer. Both sides continued to say, of course, that they wanted a fair and impartial jury. In actuality, one side wanted a convicting jury, the other an acquitting jury.

  When jury selection finally began, Judge Ito had ruled that if jury consultants were going to be used, they had to sit in front of the bar, not in the audience of observers. So Jo-Ellan Dimitrius and her colleagues sat at the table with us, and we introduced them to the potential jurors.

  The prosecution, however, seemed to take a different tack; only Marcia Clark and Bill Hodgman sat at the prosecution table, as though to convey to the jury pool, “We ’re just the poor underdogs sitting here representing the People, up against the army of the big-bucks defense.”

  But I knew very well that their jury consultant, Don Vinson, was sitting in the back of the courtroom. As I began to question the prospective jurors, I pointed Vinson out to Judge Ito. “Your Honor, can you have that person identify himself, please?” I asked. “I don ’t believe he ’s a juror.” The main focus of my objection to where he was sitting was that it was next to potential jurors. An abashed Vinson identified himself. After that day ’s recess, he was gone. Clark and Hodgman evidently preferred their instincts over his expertise, in spite of his advice to downplay the importance of domestic abuse as a precursor to murder.

  Frustrated and often angered at the ongoing publicity about the case, which neither he nor anyone else could censor or control, Judge Ito had basically excluded from the jury any candidates who regularly read newspapers, magazines, or watched television news. “Both sides lost some good people in the process,” Jo-Ellan said.

  “I ’m not looking for hermits,” Judge Ito told the prospective jurors. “The issue is, can you set aside whatever you heard? Can you put aside your impressions and opinions and judge this case solely on the evidence presented in court?” Although those questions are posed to every jury, we were all aware that this jury would face a number of challenges unique to this case and this defendant.

  Although there was a sense of drama and ritual surrounding this first day, the day itself was fairly uneventful. The first round of eliminations from the panel was for “hardship,” which described jurors who, on the one-page questionnaire from the court, said that under no condition could they be available for a trial that would run at least through February. One man in particular put on quite a show. “I ’m just too stressed to do this,” he claimed, although he looked to be in as good a shape as most of the panel, if not better. His brother had suffered a heart attack, he said, and his mother had died of one. If we made him serve on the jury, what would we do if he had a heart attack and died during deliberations? The speech was creative, and effective. We excused him.

  One of the challenges of picking a jury is finding people who are not only honest but honest with themselves as well— that is, honest about their feelings. In a voir dire setting, with the solemn rituals of trials and courts all around, it ’s awkward for a prospective juror to say he cannot be fair, cannot be impartial. In many ways, it ’s almost a trick question. I phrase it somewhat differently by putting jurors in the defendant ’s position, by trying to get them to understand how they would feel in that same position. What qualities of deliberation would they hope to find in a jury judging them?

  Bill Hodgman and Marcia Clark had filed a motion requesting a continuous hearing, asking that once the hardship cases in the prospective jurors were identified, the trial be continued— that is, delayed—until their DNA testing was complete. They had ten more items to be sent to Cellmark. I thought it was ironic that the evidence they were seeking to test had been discovered months ago. They wanted to complete the hardship portion, then go to the DNA hearings, then return to final jury selection. The defense argued against the motion. Now that selection had finally begun, we didn ’t want any further interruptions, and neither did the judge. “I want to get this jury selected,” said Ito.

  That first day, Johnnie and I left together, walking out through the same chaos. Every reporter had a question, shouting out comments, introducing themselves, throwing their microphones out in front of them so that if we made any remarks, they could later edit tape to make it look like they had interviews with us. We said nothing.

  I dropped Johnnie off at his office and went back to my own, where I had an appointment with Skip Taft to talk about the money situation. The preliminary figures for the trial alone were overwhelming. The clock had now been running for five months, and we still didn ’t know for sure when the trial would begin, let alone end.

  The tab for the three investigators, who were paid a specified weekly rate plus living expenses, was one concern. Their fees had been negotiated by Skip, and there was no question that the crew had been working diligently seven days a week, around the clock, but we had to do something to cut costs. John McNally indicated that he would be willing to leave the case and would go back east within a month. Pat McKenna said he would take a cut in pay but wanted to stay on. In the meantime, we agreed to find a two-bedroom apartment and get them out of more expensive hotel rooms.

  I then called Alan Dershowitz, whose hourly rate was accumulating steadily. I wanted him and his brother Nathan to stay with the case. Alan had been key to strategy since the beginning, and in terms of motions he was a creative master. He pledged to reduce his fee in the event of having to prepare an ap
peal. “I don ’t even want to talk about appeals now, Alan,” I said. “We ’re not going to see a conviction in this case.” He agreed to stay on, with a flat fee that was agreeable to Skip.

  Scheck and Neufeld were another problem entirely. For the preliminary hearing and pretrial motions, they ’d been working for a flat fee. We needed them for the trial, but they were anticipating a three-week Kelly-Frye hearing plus three weeks preparation for it, which would ’ve been a tremendous added expense. Skip was frustrated, saying that he sometimes felt like he was watching O.J. ’s money drain through a sieve. “We just can ’t do this,” he told me. “We ’ve got to find ways to cut the money or cut the time.”

  I told him we ’d do what we could, but Scheck and Neufeld were essential. We hadn ’t even begun the trial; it was no time to cut down on lawyers or experts. We did, however, begin to reconsider the Kelly-Frye.

  The second day of jury selection, O.J. ’s mood was down again. He had had a very sad conversation with Bobby Chandler. They had talked about their children: Bobby had three of his own, and O.J. ’s daughter, Sydney, would be celebrating her birthday in a few days. Chandler had tried to impress upon O.J. the power of prayer. Although he himself was not afraid to die, O.J. was grieving for the pain his friend was going through. In one hushed, surreal moment in court, he unexpectedly sang a few chords of “Memory” from Cats, and the reporters, of course, took down every note.