The Search for Justice

by Robert L Shapiro

  Rather than returning to the holding cell over the lunch break, O.J. was allowed to stay at the table with us. During the breaks, he and I learned to play solitaire on the computer, although we both had some initial trouble moving the mouse around. When he ’d win, his mood would brighten up a little, and then he ’d remember where he was.

  In the wake of the KNBC report about blood tests on the socks, the court ’s concern about news leaks became increasingly apparent. Ito showed us an article from Newsday that reported that blood on the floorboard of the Bronco had been DNA tested and identified as Nicole ’s. Neither Scheck nor Neufeld knew anything about this. Ito reacted angrily to The Daily Journal (a law newspaper) for publishing the jury questionnaire before he had released it, and temporarily took away the paper ’s seat in the courtroom. I was convinced that reporters weren ’t pulling their information out of thin air. Someone was feeding it to them.

  Ito told the attorneys he was seriously considering keeping television cameras out of the courtroom. At any rate, he wasn ’t going to decide one way or the other until the last possible moment, hoping that it would put some kind of pressure on the media to moderate themselves and to take his threats seriously. We filed a motion for the judge to take some kind of action to find the source of the news leaks, since their cumulative effects seriously threatened the defendant ’s right to a fair trial. Johnnie argued very passionately that these problems in the press began on day one, with the leak of the 911 tapes and Gil Garcetti talking about a Menendez defense.

  The morning we were to file the motion on the news leaks, Clark was late to court. In chambers, I kidded Judge Ito: “I ’ve got bad news. Marcia won ’t be here today, she ’s sick.” He looked at me with some surprise. I said, “She ’s recovering from her personality transplant.”

  In addition to following up on the news leaks, I queried Ito and Hodgman about the discovery order we ’d filed weeks before for the logs and communications tapes from the L.A.P.D. The judge had signed that order, but the material still wasn ’t forthcoming, and Bill Pavelic kept reminding me how important it was to see the detectives ’ reconstruction of their actions on that first critical day.

  “I don ’t want anything more or less than what we asked for and what you signed,” I told the judge.

  Hodgman interrupted, saying that producing all that material would be difficult. I stopped him. “Your Honor,” I said to Ito, “haven ’t you already ruled on this?”

  He nodded. “Yes, I have, and we ’ll put this back into the record.”

  I mentioned that we kept going back and forth on these issues of discovery. “I thought the procedure was that the proponent argues, the respondent argues, and the proponent gets the last argument,” I said. “But on this case, we have surrebuttal, sur-surrebuttal, sur-sur-surrebuttal, and super-surrebuttal. Then the judge rules. Then, if the ruling goes against the prosecution, they present a motion for a new ruling.”

  For Grant ’s birthday in September, we took fifteen kids to Raging Waters theme park. I was dressed in a hat, sunglasses, and loose jogging clothes. Linell bought the tickets, I stayed off to the side, but one of the ticket takers recognized me and insisted that security be called. I spent the rest of the day sitting in a secluded back corner of the park, reading one of Gerry Spence ’s books, while Linell ran shuttle between me and the kids.

  At the end of the day, as we were gathering up everybody to leave, a security guard came running up, all wide-eyed and out of breath. ABC had a news crew waiting just outside the front gate. So we all turned around and made a quick, discreet getaway out through the back way.

  A few days later I was invited by Art Harris, the CNN correspondent who had been reporting on the case, to have dinner with Tom Johnson, a former editor of the Los Angeles Times and current president of CNN. We talked about tabloid journalism and whether or not the First Amendment could be passed today. Johnson and Harris both said they didn ’t believe it could.

  “If I were a journalist watching this case,” I said, “I ’d want to know if the money that the people of California were paying was being well spent. Whether the district attorney ’s office was doing a good job, whether they were understaffed, the way they keep claiming whenever they can ’t provide us something, or if they have adequate resources. I ’d want to know how many other murder cases they ’re trying while they ’re putting on this one, and how the resources available are comparable.”

  We discussed the increased role of DNA evidence in criminal trials. Tom Johnson was concerned that scientific evidence seemed to be used solely for the purpose of convicting someone. I told them a bit about Scheck and Neufeld ’s work with the Innocence Project.

  And, of course, they wanted to know if television cameras were going to be allowed in Judge Ito ’s courtroom. “Three weeks ago it was a sure thing,” I told them. “Now, I don ’t know which way he ’s going to decide.”

  “Why doesn ’t he let the cameras go in,” suggested Art Harris, “and have them turned on and off at the attorneys ’ discretion. At the end of the trial, the tapes could be edited and then used solely for educational purposes, not for commercial ones.”

  I rolled my eyes at that one. The prosecution and the defense attorneys would argue over when the cameras should be on or off. They ’d argue over who would edit the tapes and how. And then there would be arguments about whose educational benefit the tapes were for. And, of course, the tapes would be leaked. And then everybody would have to be subpoenaed. And they ’d all bring their lawyers with them. No, I told them. As anxious as Ito was to do the right thing, I knew he ’d either have the cameras all the way on or, if he changed his mind, all the way off. My belief was that we ’d have cameras.

  “Bob, if you were president of CNN,” queried Johnson, “how many countries would you air this trial in?” At the time he was thinking about airing it in around forty countries. Later the count went close to two hundred.

  Faye Resnick ’s book, Nicole Brown Simpson: The Private Diary of a Life Interrupted, landed on the jury selection like a bomb.

  The day of October 18 started off badly. Johnnie and I arrived at court to find that Ito had denied all of our motions for exclusion of DNA evidence, in spite of “telegraphing” Marcia Clark the week before that some of the prosecution ’s evidence was going to get thrown out. This was because we had documented that the prosecution had failed to complete its testing in a timely manner. They ’d had this material for three months and hadn ’t sent it out for analysis, but no one could explain why this was. Ito had even indicated that he was considering sanctions against the prosecution. “You had your chance before,” Ito told them. “I ’m not going to consider this.” While I ’d expected to lose part of the fight, it was a significant setback to have lost all of it.

  The first order of business was a discussion in Judge Ito ’s chambers about the imminent release of Resnick ’s book and what effect, if any, it might have on our jury candidates. Co-written with Mike Walker, a National Enquirer editor, it was a sleazy “reconstruction” of the last months of Nicole ’s life and a sad commentary on what Resnick alleged was the loving friendship she shared with Nicole. I thought it was the height of irony that the pundits had been mistakenly assuming for months that we would impugn Nicole ’s character as part of the defense strategy, and here her “best friend” was doing it instead. There she stood, safely behind the shield of the First Amendment, during what she and her publisher knew was still an ongoing and unsequestered jury selection. As Greta Van Susteren was later to observe on CNN, “A book that ’s this tawdry, this sort of mean-spirited, suggests something far more than news. It suggests that someone is greedy and wants to make money.”

  No one knew for sure when the publication date was, so Judge Ito ’s clerk called Dove Books directly. We were dismayed to hear that the book had hit the newsstands that very morning. I suggested that we excuse the jury for a long lunch break so that everyone else could examine the book.

  When Ito exc
used the jury panel for the lunch break, he made a poor judgment call by suggesting that they go to the nearby mall to get an early start on their Christmas shopping. At the mall there ’s a big chain bookstore. Resnick ’s book was one of their “picks of the week.” That afternoon, I was unnerved to see that a couple of jurors had returned with bags from that very bookstore.

  After Judge Ito and the defense and prosecution attorneys read the book during the break, I requested a recess until the next day, so that we could all consult and try to formulate a plan for damage control. The book itself was one thing; the press furor that was even now heating up to accompany its release would only raise the stakes.

  Ito then ordered a temporary halt to jury selection, instructing the jury to return in two days. As they left, he said to them, “Oh, I neglected to tell you, you are to stay out of bookstores.” It reminded me of that old psychologist ’s joke where you tell someone not to think of elephants—at which point all they ’re able to think of is elephants.

  For the first time since the case began, Johnnie and I gave a joint statement to the press. I said, “I ’ve had a great fear that O.J. Simpson could not get a fair trial; after the events of today I ’m convinced that he cannot get one.”

  Johnnie criticized the judge for his ruling on the late DNA evidence. “We thought we ’d be able to get twelve people who would judge this case solely on the evidence they ’d hear in court,” he said. “Now I don ’t think that ’s possible.”

  That afternoon Johnnie and I, with Sara Caplan, had a conference call with Bailey in Florida, Uelmen in Santa Clara, and Dershowitz in New York. Bailey started things off, and he was as angry as I ’d ever seen him. “Gentlemen, this is war and we have to start treating it as such! We must be very, very aggressive and immediately move to have the case taken away from Judge Ito; file a writ of mandamus in the California Supreme Court; ask that it be transferred to federal court. Severe sanctions and remedies must take place!”

  Dershowitz agreed that we should take a more aggressive position, but Cochran and I argued that we didn ’t want to file a motion that we were sure to lose, and delay the case even longer. “Gentlemen, it ’s time to get tough!” Bailey insisted.

  “We don ’t want any more delays,” I said, “and at this point we ’re doing better with the jury selections than the prosecution is. We have to find a way to protest this strongly, and make a legal record of it, without crashing the whole thing. The appellate court is just waiting out there to get their hands on this. I don ’t want that to happen.” We began to formulate a plan of attack.

  On October 19, I presented a motion before the judge, in a closed courtroom. Gerry Uelmen had worked late into the night on the motion we had all met early that morning to review. In it, we asked for two things: one, to continue the trial for one year and to grant bail to O.J., releasing him under stringent conditions of house arrest, “allowing the frenzy that has taken place to die down, and allow an opportunity for a fair trial to be presented”; and two, to investigate a conspiracy among Faye Resnick, her attorney, the National Enquirer, and Dove Books to deprive O.J. Simpson of his constitutionally guaranteed right to a fair trial, to plant false and misleading information in the minds of the jurors, and to seek financial gain. Dershowitz had added that we did not want a sequestered jury, and we did not want a change of venue.

  Emotions, mine and everyone else ’s, ran high throughout the arguments of this hearing. The judge, of course, ruled against my motion, and I objected strenuously. O.J. couldn ’t stop talking at the counsel table, and at one point I admonished him that if he didn ’t be quiet, I ’d quit as his lawyer. The “threat” made it onto that night ’s news.

  During the discussion, Marcia made a flip remark about prospective jurors lying to get on this jury, that she wished they all had to take polygraphs. I later said that was “one of the most idiotic statements made in a courtroom anywhere,” and I meant it. I don ’t think I ’ve ever had an angrier day in a courtroom.

  That night I was awakened by some radio talk show host calling on my direct line at home. The first time, I hung up on him. He called back. “This is a private residence,” I snapped. “I view this as a serious invasion of my privacy and ask you please not to call back here again.”

  To his credit, the man said, “I understand, I apologize,” and he hung up. I had the feeling the brief exchange had been broadcast on the radio, live.

  The following day, Judge Ito asked both prosecution and defense to join in a motion to close the proceedings to the public and press. He anticipated arguments from the media, but he believed that if we presented a united front on this issue, it would strengthen his argument. In addition, we would now voir dire the jurors individually, away from the rest of the panel.

  I had always been in favor of open courtrooms and televised court proceedings. Now I found myself in the ironic, uncomfortable position of agreeing with the prosecution and a very conservative judge that the press and public should be banned. I suspected, however, that without an “audience,” we might get more honest answers from the jurors.

  Although the press covered Ito ’s closure of the courtroom very negatively, the jurors did seem to be more comfortable when there was just one of them at a time in the room. They were certainly more forthcoming. Three admitted that they had watched television in the two days that Ito excused them: one saw the news, one watched a program on clairvoyants on PBS, one watched The Movie Channel. We also discovered that several jurors knew of Resnick ’s book and had heard some of the furor surrounding it. Some had become aware of it only because of Ito ’s instruction to stay out of bookstores. Quite naturally, when they went home or to work, someone told them why bookstores were off-limits. Then there was the one woman who said, “I come home, I go in my room, I do my ironing, I play Nintendo.” There were others who resolutely assured us that nothing, absolutely nothing, could affect their fairness. Certainly such overeager people might have agendas of their own, and they were clearly jurors we did not want.

  Throughout the upheaval surrounding the first few days after Resnick ’s book was published, O.J. appeared less upset than his defense counsel. She had accused us, and me in particular, of trying to stop the book in advance of its publication and claimed that tapes she ’d recorded had been stolen. But O.J. did his best not to let it bother him. He knew it was full of mistakes; in fact, a couple of the errors were so ludicrous he actually laughed out loud. Faye ’s former boyfriend appeared on Barbara Walters ’s show and was quite critical; Cora Fischman spoke to one reporter and referred to Resnick as “Faye the Flake”; Nicole ’s father, Lou Brown, had publicly called the book “trash.” I suspected that nothing would slow down sales, but I hoped that it could be seen for what it was.

  Ito had asked a professor at Harvard Law School to have students prepare memorandums on whether or not media should be allowed in the courtroom. Six memorandums arrived, making articulate cases for both sides of the issue. After studying them carefully, Johnnie and I found ourselves reconsidering the question of excluding the media from the trial. Finally we went to the judge and told him that we ’d changed our minds. As uncomfortable and cumbersome as the whole thing sometimes was, the American public had a right—possibly even a need—to see and understand what goes on in its courtrooms. It was clear that no one was going to understand those five amendments in the Bill of Rights unless they saw them implemented in a concrete situation.

  Having taken Brent and Grant to the Coliseum two years before for a Rolling Stones concert—and having enjoyed it—I ’d long since purchased tickets to the Stones ’ October concert in Pasadena. Linell and I sat in the third row with the boys and were surprised during the opening when the lead singer for the Red Hot Chili Peppers (the group my kids really wanted to hear) not only announced that Robert Shapiro was in the audience but that later on, “Judge Lance Ito is going to be doing a guest set on the drums!”

  Later, when Mick Jagger tore into “Honky Tonk Woman,” we were
completely astonished when my picture flashed up on the huge Rose Bowl video screen, right next to Jagger ’s, and there was a thunderous cheer from seventy-five thousand people.

  It was a great night—noisy, energetic. It had been too long since the four of us had done something fun together. I was becoming increasingly concerned for my boys. With their school and ice-hockey plus my schedule, I was only seeing them on weekends. The case, and my total absorption in it, was weighing very heavily, especially on Linell. “I ’m proud of you,” she said, “but for me, there ’s no upside to this.”

  She had lived in Los Angeles all her life; there were restaurants and charity events and department stores she had gone to since she was a teenager. Dinners at Drai ’s and parties at Spago were part of her routine. Now, she never knew quite what would be waiting for her in these places, especially if I was with her. One anonymous source was quoted in the paper as saying “Robert Shapiro will come to the opening of a fucking door.”

  I didn ’t care what people said about me, about my politics or my style or my choice of clients. As former district attorney Ira Reiner said to me, “You get high-profile, and you simply have to learn to eat shit.” But my family and my private life should ’ve been strictly off-limits to anyone with integrity.

  A day or so after the Stones concert, I received a care package from Joel Siegel in New York, with lots of newspaper articles and magazine clippings, including one magazine from Europe with the cover line “Robert Shapiro—The Most Famous and Smartest Lawyer in America.”

  The note from Joel read, “Don ’t let this go to your head. They also think Jerry Lewis is the funniest man in America.”

  Chapter Twelve

  The last week of October, the prosecution claimed that their data-base research turned up O.J. ’s name in 15,310 articles. On October 25, Marcia Clark asked Ito to dismiss the entire jury panel, claiming that they had been infected by all the recent publicity, including the furor over the Resnick book. Johnnie countered with, “You ’ll never get a better pool than this one. This pool has been more admonished than any other; they ’ve been ordered not to see or read anything.” I fervently hoped they ’d missed that weekend ’s egregiously tasteless Saturday Night Live “Week in Review,” touting the Pope ’s new book, O.J. Did It, God Told Me.