For months, I had admired the courage and dignity evidenced by the Browns and the Goldmans, and I respected it. I don ’t know that I could have behaved with anything approaching such grace if it had been one of my children who had been murdered. These people had all lost so much already. I had hoped, not just for my client ’s sake but also for theirs, that at the very least their privacy and dignity could be protected.
There was, of course, no way on this earth for me to express those feelings without sounding patronizing and condescending to the families. Yet I made the mistake of doing so, in response to a reporter ’s question about the potential prejudicial nature of Denise ’s remarks, and those of Lou Brown and Fred Goldman. I then compounded my mistake by saying that we understood and forgave them for the things they were saying, because of their heartbreak. My words were poorly chosen, and Fred Goldman in particular was understandably outraged.
I later gave a statement to the press at the courthouse, emphasizing that I ’d had no intention of patronizing the families or their pain. For our side, from now on we were going to limit our comments to legal procedure or to clear up any questions after each day ’s session. There would be no interviews.
A few days later, three prospective jurors were excused from the panel after stating that they ’d heard or read the Denise Brown interviews, in which she said “O.J. did it.”
At the end of November, Peter Neufeld called in a panic. He was scheduled to participate in a murder trial—admittedly one to which he ’d made a commitment some months before—in New York City. The trial was to begin at around the time our Kelly-Frye hearings on the admissibility of DNA evidence were scheduled. The New York judge, Harold Rothwax, had ordered Neufeld to appear at the trial.
Judge Rothwax told Judge Ito that Neufeld would be needed for only two weeks even though the lawyers had agreed the trial would take six. Ultimately it would take eight.
Even though we hadn ’t yet started calling witnesses, our jury had been seated: technically, our trial was under way. We couldn ’t afford to lose Neufeld, so I requested Judge Ito to issue a court order directing Neufeld to appear for O.J., hoping the tactic would convince Rothwax to allow Neufeld to stay in Los Angeles. Ito issued the order, but Rothwax was not persuaded. He ordered Neufeld back to New York under penalty of contempt of court, at which point Barry Scheck said, “Bob, there ’s too much work to do alone, I ’m going to need some help.”
For a time I thought that this might be a place for Lee Bailey to actively participate in the trial. Ever since the day of O.J. ’s Bronco ride, Lee had been on the team essentially as a consultant, overseeing McKenna and McNally and working with his computer expert, Howard Harris, to get the case material into a system that we all could use.
Bailey continued working on his own cases, frequently heading back East. But he had stayed involved with the Simpson case, visiting O.J. and attending defense team meetings at my office. He raised Bonnie ’s hackles on a regular basis, telling off-color jokes that invariably had a prurient punch line, or issuing sweeping orders about computer equipment or filing systems. His mood sometimes swung from grandiose to silly, and he often went off on tangents. But he was, above all, two things: He was the legendary F. Lee Bailey, and he was my old friend and mentor. “Someone has to do Kelly-Frye with Scheck,” I said. “Maybe it could be Lee.”
The response to my suggestion wasn ’t particularly enthusiastic. After all, if we were losing a DNA expert, shouldn ’t we replace him with another DNA expert?
Barry Scheck had put together a thirty-five-page memo detailing what he believed our strategy should be with regard to the scientific evidence, and he readily agreed to meet with Lee to see if he could be brought up to speed. Scheck wasn ’t optimistic. He didn ’t doubt Bailey ’s abilities, but he felt there was a certain depth of expertise that could only be obtained by having fought in the trenches of the DNA wars for years, as he and Peter Neufeld had done. Not only that, but whoever countered the prosecution ’s DNA experts had to do it carefully, with finesse, not shred them on the stand, as was Bailey ’s style. As an alternative, Barry mentioned Robert Blasier, a lawyer colleague in Sacramento.
I remembered reading a profile of Blasier in the Daily Journal. He had received an undergraduate degree in engineering from Carnegie Institute of Technology and his law degree was from Harvard Law School. He had extensive experience in medical and scientific issues, especially DNA, and he ’d served as an expert witness for both the defense and prosecution when admissibility of DNA evidence was in question. He had also been a legal analyst on both local and national television.
Blasier, a scholar and scientist with a great wit, was ideally suited to the Simpson case. Competitive and seemingly tireless, he had a calm, logical approach to the law and its intersection with science. The bonus came when we found out he was a computer whiz as well. He had a laptop with twice the memory of the one that Bailey had shipped from Florida. Even better, Blasier was able to immediately access all the material in the court reporter ’s transcription software.
Once Blasier ’s laptop was in gear, we had immediate access to each day ’s proceedings, as well as all discovery material, the evidence inventory, all motions and responses, and the full set of California legal codes. It was as though the man had an entire law library on his lap. His system was so good that when questions came up in court on past testimony, Judge Ito would often query Blasier, who could instantly locate the sought-after information. In addition, until Blasier ’s arrival we had been working with several talented graphics companies to prepare exhibits and demonstration boards. Blasier was able to create similar graphics as he sat in the courtroom, providing them overnight for use in court the next day. What looked like a crisis turned into a blessing. As Sara Caplan said happily, “We literally weren ’t all working on the same page until Bob Blasier and his computer got here.”
In early December, in an effort to adjust the composition of the jury and challenge alternate jury members not to their liking, the prosecution had begun an unofficial investigation of certain members of the remaining jury panel. One of them was a man who had worked for Hertz some years before. In a conference in Ito ’s chambers, Chris Darden quipped that this juror was about to become very famous. He then gave us a draft of an article for Star magazine. It was about the juror being a former Hertz employee, his presumed sympathy for O.J., and the degree to which that compromised his being on this jury. Glancing quickly through the article, I saw a reference to the reporter being scheduled to “meet with an investigator from the district attorney ’s office for further comments on Monday.”
When I pointed this out to Judge Ito, he became quite angry. Questions or problems involving jury members were to be reported directly to him, and any investigating was to be performed only by the sheriff ’s deputies, on Ito ’s orders. Nothing was to go to the press, and no investigations were to be conducted by the D.A. ’s office.
“We ’ve had no choice, Your Honor,” Marcia Clark argued. “When these matters come to our attention, we have a duty to investigate them.”
“No, you don ’t, Miss Clark,” cautioned the judge. When she tried to continue, he stopped her. “There are to be no independent investigations by the prosecution of these jurors,” he said. “If you have problems, those problems are to come to me.
We had originally opposed the prosecution ’s motion for jury sequestration, feeling that it would work against us. But now I began to reconsider the wisdom of not having the jury sequestered. Maybe it would be better all around if they were not only out of the media mainstream but out of the prosecution ’s line of fire as well. Our subsequent motion for sequestration read, “One need only look to the Faye Resnick book as well as the media blitz currently underway by Nicole Brown Simpson ’s family members and representatives to provide additional justification to sequester the jury now rather than later.”
A few days later, someone faxed a copy of a piece by newspaper gossip columnist Liz Smith, in
which I was said to have had dinner with Tony Frost, a reporter from the Star. Smith wrote that Frost and I met at La Veranda restaurant, and at the end of the evening Frost gave me a bottle of champagne. The following day, she said, the transcript of O.J. ’s initial statement to the police, which to date hadn ’t been revealed, was published in the Star.
The transcript, and the original tapes of that interview, had been in a safe in my office for months, under double signature. Just after Thanksgiving, O.J. had requested to hear the tapes. Pat McKenna signed them out, took them to O.J. in the jail, and then returned them to the office safe.
I couldn ’t waste my time or anyone else ’s tracking down the source every time my name showed up in a bad light in a gossip column, but this leak was more disturbing than gossip. Where, I wondered, did the Star get that transcript?
Chapter Thirteen
After weeks of discussion with our DNA experts, the defense team decided to waive the Kelly-Frye hearing on the admissibility of DNA evidence. Fighting item by item could ’ve taken anywhere from two to three months. We had neither the time nor the money to expend on additional expert witnesses.
Besides, I had always believed that no matter what we did, Judge Ito would ultimately admit all the results of the DNA testing. As a former prosecutor, he ’d hardly been shy in revealing pro-prosecution leanings in some of his early rulings. Furthermore, we knew he had consulted with his colleague, Judge Dino Fulgoni, who was an open proponent of DNA evidence and one of the district attorney ’s top DNA experts before he went to the bench. We were just going to have to deal with the evidence and argue not its admissibility but its reliability and credibility.
Over the weekend of December 10 and 11, CNN ’s Art Harris reported the defense ’s decision to file a motion to waive the Kelly-Frye hearing. Confirmation of this information had come, he reported, from two members of the defense team. I was completely surprised when I heard this; we hadn ’t filed the motion to waive yet, nor had we told anyone about it.
“Damn it, this place is like a sieve!” I said. “I just gave mybig speech about not talking to the media, and here we are, meeting ourselves coming and going on TV before we ’ve even filed the damn motion!”
Gerry Uelmen, who had prepared the motion, was angry at the news leak, as was everyone else. Strategically, it didn ’t harm anything; psychologically, it had us all once again looking over our shoulders. And at each other.
On Monday, December 12, the jury was assembled and given cautionary instructions by Judge Ito as to what they were to do between that date and January 4, when they were told to report back and be prepared for sequestration. There were a few more pretrial matters to resolve—the admissibility of the prosecution ’s domestic abuse evidence and the material on Mark Fuhrman we wanted to introduce—but once we ’d foregone the Kelly-Frye hearings, we knew that the trial would probably begin within a couple of weeks after the Christmas break.
In mid-December, we did battle with the prosecution over Roosevelt Grier ’s visit to O.J. the month before.
The problems around our visiting arrangements and the visiting room had begun almost as soon as O.J. went to jail. Defendants on bail can prepare their cases seven days a week, but of course that had not been an option for us. Because we were often in court on pretrial matters during the week, it was difficult for us to meet with O.J. anytime except the weekends. But the attorney room at the jail was closed from mid-Saturday until Monday morning.
Judge Ito made another area available to us, with the required sheriff ’s deputies, some soundproofing, and a phone system so that O.J. could speak with a semblance of privacy, in spite of the glass wall between him and his visitor. During his visit with Grier their conversation, and specifically O.J. ’s words, were overheard by a deputy. Even though neither side knew what had been overheard, Grier assured us that it wasn ’t anything damaging. Still, we contended that because of Rosie ’s status as a minister, the jail conversation was privileged; Marcia Clark argued that by raising his voice in the glass-walled visiting room, O.J. forfeited his right to privacy, and whatever he ’d said would be admissible.
“If the parties choose to shout at each other, that ’s their problem,” said Ito, leading me to believe that he was going to go along with Clark.
I exploded. “I think it ’s disingenuous for Your Honor to even make that suggestion. You assured us privacy with those phones!” I said. The existence of telephones and the volume of an overwrought defendant ’s voice hardly qualified as reason to check his constitutional rights at the jail door. Ito had approved the design of that room so that it would be private. O.J. had every right to believe that whatever he said there was said in confidence.
Ito ’s eyes got very steely. “Take a deep breath, Mr. Shapiro,” he cautioned. “When you argue that the court is being disingenuous in that question, I ’m a little concerned. I would ask you to sit back and think about that for a moment.”
Cochran and Uelmen took me aside and told me that Ito wanted an apology. “No,” I said angrily. “Ito personally assured us that the room was designed to protect confidentiality. He can ’t rule against us just because Clark wants him to. The conversation was privileged, I don ’t care how loud it got.”
My colleagues weren ’t any happier than I was, but it was clear that the next step was mine, and it had better be made diplomatically. After the lunch recess, I came back and apologized to the judge. “It was something said in the heat of advocacy,” I said.
Later that week, Judge Ito ruled that, indeed, O.J. ’s conversation with Grier was privileged. “Counsel for Simpson were assured that the proposed modifications would make a portion of the module secure,” he said.
The court would be dark for the two-week Christmas break. I had long planned to take Linell and the boys to Hawaii. Johnnie was heading for New York and then on to South Africa for a long-planned trip. The New Yorkers were heading out, and Bailey was going to Florida. Baden and Lee had been back East for months, getting ready for their trial testimony.
O.J. knew that some of us were going to be out of town until after New Year ’s; in fact, he had encouraged everybody to take time off. We had been working almost nonstop for six months. With the trial coming up, it would be the last break we ’d get for a while. He was trying to be fair; I knew he wasn ’t looking forward to his own “break” in jail. Even with his family visiting, it would be a very, very quiet two weeks, and we were all painfully aware of that.
As the time to leave grew closer, I became uneasy. I wasn ’t sure if it was discomfort at the idea of O.J. in jail over Christmas or guilt at time with my family that I suspected might be cut short. Maybe it was knowing that when we came back, we ’d finally go to trial. Whatever, I fully intended to work in Hawaii. I was taking a stack of files, along with DNA reading material, and I ’d made arrangements for two private telephone lines and a fax line to be installed in our suite. Anyone who wanted or needed to reach me would be able to do so.
On Sunday and Monday, before I left, I spent as much time as I could at the jail with O.J. We went over the same ground again and again, and I reassured him that the case had been fully researched and prepared, that we were ready. O.J. was working to stay optimistic, to stay focused and energetic. Much of the material in my office—witness statements, the murder book, crime-scene photos, much of what we ’d received in discovery—was being packed up to be shipped to Florida so that McKenna and McNally could go over everything again on the break. When we all returned, we would be rested and prepared for the trial to begin.
A few weeks before, I ’d called Mike Ovitz to get some personal advice, telling him how difficult it had been to hang on to my private life. “I ’m really getting battered in the press. Any suggestions as to what I can do?”
“You ’re really out on a limb,” he said. “I really don ’t know what to tell you in this situation. I know how awful it is, what ’s happening to Linell and the kids. You ’ve got to pay close attention to them. When yo
u travel, travel under an assumed name.”
So that ’s what I did, using the name Tony DiMilo, a singer who ’d been in my father ’s band. United Airlines and the Grand Wailea Resort on Maui were both in on it and saw to it that our real names never went into any computer. Once on the plane, Linell and I were in first class and the boys were in coach directly behind us. I worked all the way to Maui, feeling only slightly foolish when the flight crew, who obviously knew who we were, asked Linell if “Mr. DiMilo” wanted any more club soda.
Once settled in at the hotel, I left it on two occasions to go out to dinner. Otherwise, we ate all our meals in the hotel restaurants, and I spent much of each day in our suite, reading DNA texts and drafting a twenty-six-page outline of what would become the foundation for Johnnie Cochran ’s opening statement. Linell and the boys hit the beach or the pools, and I ’d join them around three in the afternoon, bringing my homework with me. After reading in the sun for about an hour, I ’d head back to the room and deal with the phones and faxes, then to the health club for a workout. In the evenings, we all had dinner together. Then I ’d exchange faxes with Barry Scheck, who was in Mexico, on DNA strategy.
On the twenty-third, I received a memo from Lee Bailey regarding tactics for the trial opening. When we talked about it on the phone, he was somewhat rambling and repetitious. It was six hours later where he was; clearly he ’d enjoyed a few cocktails. When he mentioned that he was planning on being at the trial for the duration—around four months, he guessed—I said, “Lee, what are you talking about? There are only three seats at the counsel table. I haven ’t received any clearance whatsoever for you to be there.”
“Oh, yeah?” he said. “Well, have you talked to your client lately?”
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