The Search for Justice

by Robert L Shapiro

  Bill Hodgman came up with the idea of planting our jury on a college campus somewhere, where people could go to the movies, the theater, listen to lectures, and so on, yet not be contaminated by outside information. I responded that it was too little too late. The only reason Clark wanted a new panel now, I said, was her jurors-needing-polygraphs remark, which seemed to suggest that they were all liars.

  At which point the first juror in the box, a sixty-year-old woman, said, “Everybody talks about this case, everybody wants to get on the jury, and they all lie.”

  “See, Your Honor, I told you!” said Clark.

  On the way to court, Dean Uelmen told me that he ’d been informed by the prosecution that a blood sample in the Bronco tested positive for Nicole and that a mixture of O.J. ’s and Ron Goldman ’s blood was on the console. This evidence would be the most challenging to overcome. I discussed it with Cochran, and he said, “Well, we ’ll just have to deal with it.”

  The question in my mind was not whose blood was where, but when and how it got in each location. I had begun thinking of our tactic as a formula: CPA and DNA. CPA stood for collection, preservation, and analysis. The third had no meaning whatsoever unless the first two were done properly. Contamination, cross-contamination, degree of degradation—these were the issues that Scheck, Neufeld, and Henry Lee would be working with.

  Gerry Spence had made a comment on television to the effect that if O.J. did do it, he didn ’t know he did it. In the lock up, O.J. was furious. “I know what I do and what I don ’t do,” he said angrily, “and I didn ’t do this.”

  He was depressed and frustrated, worried that perhaps now even his own lawyer might not believe him. There was no way to make things easy or comfortable for him. Being his lawyer didn ’t mean being soft on him. It meant putting hard questions to him, challenging him on evidence. “Best friend” wasn ’t in my job description.

  It ’s unfortunate that something as vital as finding a jury should be so tedious and time-consuming, and yet it is a by-the-numbers process. With Ito ’s restrictions, one juror was eliminated for watching a cartoon with her children, one for turning on a Spanish soap opera, one for waking up to a clock radio, and one for walking into a bar that had a television on.

  I began to see a pattern of black jurors being treated differently than white jurors by both the judge and the prosecution. In all fairness, I ’m not sure they were aware of it. I didn ’t believe it was intentional, and I ’m sure that both Clark and Hodgman would say that they absolutely didn ’t do it. And Ito would agree with them. And indeed, the behavior was subtle. For example, one thing that gave reason to excuse for cause was if the panelist had violated the judge ’s order simply by turning on a television or radio. Ito would ask white jurors, “Have you watched television or listened to a radio?” For black jurors, he ’d say, “Have you listened to music?” Invariably they ’d say yes, and his next question would be, “Was that done on a radio?”

  I saw Marcia Clark go after a forty-two-year-old black female postal worker whose job was to track lost and stolen mail. She appeared to be of above-average intelligence, bright, nice, but not particularly adept with her communication skills. When I questioned her, she had, like almost everyone, formed some opinions of the case. She had always viewed O.J. as a hero, had liked him, and didn ’t want to believe he was guilty. She thought the officers, in jumping over the fence “to save lives,” weren ’t quite credible. But, she said, this was twenty-twenty hindsight; she wasn ’t on the scene at the time, and the officers might ’ve believed their reasons were good ones. She believed she could set her feelings aside and listen to the judge and the evidence. Marcia cross-examined her in a very sweet, low-key, methodical way, leading her down the primrose path before demolishing her. Ito excused the juror for cause, because she had “preconceived conceptions of the case.”

  I argued that all jurors had preconceived conceptions, and this woman was no different, she just expressed them from a different point of view. Clearly this was a juror the People didn ’t want, and I could understand that, but I did not believe the reason for her excusal rose to the level of cause.

  One seventy-one-year-old black man was questioned by Bill Hodgman, whose voice and articulation became very slow and level, different somehow than when he was questioning white panelists, almost as though he expected the man not to understand him. “Do you know what a polygraph is?” Hodgman asked. The juror shot back at him, as though insulted, “Yes, it ’s a lie detector!”

  One black woman undergoing a voir dire by Hodgman finally blurted out, “You make me feel like I ’m on trial!” Another began to cry when Hodgman probed deeper and deeper into why she didn ’t have faith in blood tests. It turned out that her sister was misdiagnosed after a series of blood tests, and died a month later of leukemia. “At least I ’ve never made a juror cry,” said Cochran later.

  “There ’s something happening that I don ’t like,” I said, when he and Carl Douglas were reviewing the sessions with me. “Race shouldn ’t be an issue here.”

  “It ’s always an issue, Bob,” Johnnie said. “It ’s an issue in everything in life.”

  I just looked at him. “But I hoped it wouldn ’t be. I believed it wouldn ’t be.”

  He smiled. “That ’s because you ’re not black.”

  Often after these voir dire sessions I left the courthouse with my blood boiling. We haven ’t gotten anywhere in fifty years, I thought. We have the appearance of equality, and blacks serve on juries right beside whites, but in looking at the polls, it was clear that the tide in October had gone against us, splitting right down the racial line.

  According to one CNN poll, 70 percent of those polled believed O.J. guilty; 20 percent believed he wasn ’t. The majority of those who believed him guilty were white; those who believed him innocent were black. The majority of black jurors had black heroes, and O.J. Simpson had been among them, for many good reasons. Should these citizens be penalized, or be assumed to be incapable of making thoughtful, considered decisions because of this fact? In our voir dire process, if blacks were excused for cause because their initial opinion was that O.J. was innocent, then all the whites should ’ve been excused for cause if they believed him guilty.

  On Halloween, I arrived at court to see a half-dozen TV camera operators wearing “Shapiro masks.” It gave us all a good laugh. Later I thought that it was pretty ironic. If I wore one of those masks, I could probably move through my life with some of my old autonomy.

  For five weeks we ’d been working with our jury panel, narrowing it down bit by bit, and we were now down to the last twenty-seven jurors. Jo-Ellan Dimitrius had coordinated all the massive material and data on each of them, the answers on their questionnaires, their responses to voir dire, and we ’d ranked our possibilities on the computer. The final round was a war of nerves, like an ultimate chess game. It would result in what I believe to be the most important aspect of any case: who will judge the evidence.

  This panel of possible jurors had received the most thorough indoctrination and explanation of its mission of any jury I had seen in twenty-five years. Day after day, Judge Ito had emphasized to them that “Mr. Simpson can sleep through this if he wants. In our justice system, the burden of proof is solely on the prosecution.” And yet, when I asked jurors what they expected Mr. Simpson to do in this case, one prospective juror looked me straight in the eye and said, “Prove his innocence.”

  We had planned our strategies for peremptory challenges very carefully. Several times early on we accepted the jury knowing full well that the People would exercise their challenges. Thus we were able to hang on to our own challenges to use later. We had no intention of being easy on the prosecution if they continued to exclude blacks. Each time a black juror was excluded by the prosecution, Cochran asked to approach the bench, to build a record of a systematic challenge based on race.

  On November 3 we at last had our jury. Twelve citizens sworn in; fifteen alternates to be chosen the
following week. The final composition was better than we could have expected. Eight African-Americans, two Hispanics, one male Caucasian who was part Native American, one young female Caucasian. None had prior jury experience, none seemed preconditioned toward accepting DNA evidence. All seemed to have open minds. They, and we, had made it through a challenging five weeks. Picking a jury is always the hardest part of a case, and at last, it was over. Johnnie and I joined hands and together we announced, “The defense accepts the jury.”

  November 7 was the date set for the courtroom hearing on cameras in the courtroom. The media had a field day, as lawyer after lawyer got up and delivered eloquent lectures on the freedom of the press on behalf of newspapers and networks. When Ito took the bench, he showed us his own demonstrative evidence: boxes stacked twelve feet high, full of the approximately fifteen thousand letters the court had received asking that the cameras not be in the courtroom.

  Overall, I felt that cameras should be allowed. I believed they would help O.J. On the plus side, I believed that the defense team was more comfortable in front of a camera than the prosecutors. We thought that O.J. would do well with cameras, whether on the stand or simply at the defense table. On balance, we believed that all our witnesses would stand up better to camera scrutiny. The prosecution ’s key witnesses hadn ’t done particularly well with the cameras during the preliminary hearing, especially Detective Vannatter and Dr. Golden. The cameras might also serve to keep Judge Ito operating down what I thought of as the middle of the road, rather than leaning to the prosecutorial line, as most judges in my experience have tended to do.

  The downside, of course, is that cameras affect everyone in a courtroom, and people get self-conscious and then act differently—and more unpredictably—than they otherwise might.

  Floyd Abrams, the noted constitutional law expert who was commentating for Court TV, gave in my estimation the best reason for cameras in the courtroom. Drawing the analogy to O.J. ’s plea, he said, “I represent the cameras, and to that I plead one hundred percent not guilty. The cameras haven ’t caused the problems.” The public should see what the jury sees, he argued. We, too, wanted cameras only for the evidence that the jury would see. Any pretrial motions, evidentiary rulings, or arguments made at sidebars would not be filmed.

  As was his policy, Ito courteously allowed everyone an opportunity to speak as long as they wanted. At the end of the day, he announced his decision: The trial could be televised.

  Soon after our jury was impaneled, I was astonished to see, in the Los Angeles Times, a full-page ad announcing that Judge Ito, “the most famous judge in America, is going to be welcomed into the homes of the American people.” During the November network sweeps, Ito was going to be featured in a five-part interview with reporter Tritia Toyota on KCBS, the local CBS channel. And KCBS was promoting it like it was the first moon landing.

  Tritia Toyota ’s husband, Michael Yamaki, was a respected attorney and a man held in high regard in the Asian community, and that ’s evidently how the first contact came about between Ito and Toyota. We later learned that there had only been one on-camera interview, not five. Ito had no way of knowing that it would be divided into a series and shown every night for a week, let alone be hyped by the television station in a manner that suggested that he was going to give inside information on the Simpson trial and its participants. This, of course, was not the case. To Ito ’s credit, and to the reporter ’s, the only things that they discussed were personal matters—his childhood and his family internment in the Japanese camps, and his interest in the law.

  Nevertheless, the whole matter put him in an unfortunate light. His detractors accused him of being on an ego trip, that it was arrogance on his part, or self-aggrandizement; his supporters said that the interview not only gave the public a behind-thescenes look at a judge and his role in the judicial system but also an introduction to a respected Japanese-American in a position of great responsibility.

  Regardless of how harmless it may ultimately have been to the case, I thought Ito ’s interview highly inappropriate not to mention that the timing, coming right on top of the Resnick book, contributed to the media circus. However, I knew it would be impolitic for me to begin a trial of this magnitude by criticizing the sitting judge.

  As we began to head into the holiday season, it was clear that O.J. was more and more irritated at issues that appeared peripheral to his trial, that seemed to draw attention away from the trial itself. He told anyone who would listen about his exasperation when Ito did the television interview, worried that it would create more bad publicity for the case. At the counsel table, he was easily overheard joining in on the gallows-humor jokes and sotto voce wisecracks that the attorneys exchanged among themselves. He grew visibly restless and impatient when he thought the prosecution was dawdling over a voir dire of a prospective alternate juror. When Ito told potential jurors that they would be sequestered for up to six months, and that opening statements might not even take place until the end of January, O.J. audibly groaned in court.

  One issue that needed to be resolved was the recurring question of Judge Ito ’s wife, Captain Margaret York. We had information that she had at one time been Mark Fuhrman ’s supervisor when he was a patrolman in West Los Angeles, and had clashed with him over his treatment of women police officers, and we raised the possibility of York being called as a witness—which in turn raised a conflict-of-interest question for Ito.

  Both the defense and prosecution thought it would be fairly easy to resolve this potentially embarrassing situation. We first spoke informally with Captain York outside Judge Ito ’s chambers, and then in a conference with him inside his chambers we suggested that his deciding the matter might give the appearance of impropriety. We needed an open hearing, with an objective judge to hear our argument.

  We went to Judge Mills and asked him to appoint someone. When he suggested Judge Steve Czuleger we reminded him that Czuleger had participated in the grand jury, and we ’d prefer someone who hadn ’t worked on any of the Simpson matters. He said, “Fine, Robert Perry, then.” Perry was a former U.S. attorney and was satisfactory to us.

  “Your Honor, we don ’t know him,” argued Marcia Clark. “We don ’t want to deal with anyone we don ’t know.”

  “Well, let ’s discuss this for a minute,” said Mills. “Who would you like?”

  “Judge Curtis Rappe,” Clark answered promptly.

  “Wait just a minute, Your Honor,” said Johnnie. “If she ’s going to suggest somebody, then I want to suggest somebody.” And he mentioned a judge that he knew and was close to.

  This is going nowhere, I thought. “Judge Mills, this is ridiculous. If we all pick and choose and then argue our favorites, this will never get done. You ’re the presiding judge, you have lots of good judges to choose from. Why don ’t you just pick one?”

  Mills nodded. “That ’s exactly what I ’m going to do,” he said. “I ’m not going to be influenced by anyone. The matter goes to Curtis Rappe.” The prosecution ’s choice.

  After Mills appointed Judge Rappe, I spoke with York ’s attorney, who assured us that his client had only a dim recollection of Fuhrman and hadn ’t experienced any difficulties with him. That clashed with what we were hearing from Robert Tourtelot, Fuhrman ’s attorney, who alleged that they ’d had many disagreements, including at least one that led to a formal reprimand in his file.

  Rappe subpoenaed all the records and reviewed them. He announced that there was nothing beneficial to the defense in calling Captain York in the case, and the matter was resolved.

  Over the long Thanksgiving weekend, I visited O.J. twice, once on Thanksgiving Day itself, which, since he was away from his family, was a very hard day for him. On the following Monday, Bill Pavelic and I spent four hours at the jail, going over and over the now-familiar details with O.J. I suspected that if he took the stand he would be a typical witness—that is, not as good as he thought he would be. I often tell clients that they must learn to be
witnesses. They must take their time, listen to questions, and answer them simply. Testimony is definitely not social discourse.

  Over the course of the trial, Bill spent endless hours with O.J., keeping him informed and getting his input. During their conversations he subtly encouraged O.J. to control his constant storytelling impulses. In the time they spent together, the two men formed a bond of trust and true friendship. But that didn ’t mean O.J. didn ’t get as impatient with Bill as he did with the rest of us.

  One day, in complete exasperation, O.J. said, “Bill, I hope this doesn ’t perjure me, and I haven ’t really told anyone until now, but I just remembered… somewhere, sometime that day, I spent some quality time in the head!”

  Between Thanksgiving and Christmas, Nicole ’s sister Denise hired famed feminist attorney Gloria Allred as her representative, and within days of doing so, it seemed that Denise was everywhere—on television, in the tabloids. To anyone who would listen, she stated over and over again, quite emphatically, “O.J. Simpson murdered my sister.” Denise in the Orange County Register: “O.J. did it.” Denise on TV, on Geraldo: “He did it.” Denise on Primetime Live with Diane Sawyer: “He did it.” In effect, she launched a war of words, which the Brown and Goldman families very quickly joined.

  I believed that it was the defense ’s role to speak on behalf of O.J., and I knew that the prosecution was prepared to speak passionately and eloquently on behalf of Ron Goldman and Nicole. For this reason, I ’d hoped that their families wouldn ’t get caught in the judicial or media crossfire.