The Search for Justice

by Robert L Shapiro

  She didn ’t know Pavelic was still on the line. Later, he told me Johnnie ’s end of the conversation.

  “Now, now, Mrs. Shapiro, I understand how upset you must be by all of this but it ’s important to put it behind us now. We ’re going to go on as a team, for the good of our client.”

  “How can this be good for O.J.?” my wife asked. “None of this is good for O.J. Come on, Johnnie, who do you think you ’re talking to? I ’ve been a defense attorney ’s wife for twenty-five years, I know what the rules are. Don ’t you understand what ’s happened? Lee can ’t be trusted—why do you want someone working for your client who can ’t be trusted?”

  From the look on her face and the sound of her voice, it was clear that Cochran was having none of it. She put her hand over the mouthpiece. “He keeps calling me ‘Mrs. Shapiro, ’ “ she said to me. “He ’s really being patronizing, like I ’m a child.”

  “No, I won ’t calm down,” she snapped at him. “Johnnie, Bob brought everyone together, he brought you into this case. If you can ’t understand what this has done to our family, why don ’t you at least see how bad it is for the case?”

  I knew she would get no further than I had.

  “Well, Johnnie, as far as I ’m concerned, if Bailey stays, then Bob goes. It ’s just that simple!” And she handed the phone back to me.

  “Bob, I know this isn ’t pleasant, and I really didn ’t understand that you and your wife felt so strongly about it,” Cochran said. “But we have to work together, all of us, for the client. This isn ’t about you, or Bailey. It ’s about the client.”

  “That ’s the point, Johnnie,” I said. “It is about the client. And this is bad for him.”

  “I don ’t want you to leave the case,” Johnnie said.

  “That ’s not your call to make,” I said evenly. “O.J. Simpson hired me as his attorney. No one else changes that. Most especially Lee Bailey doesn ’t change that.”

  “I understand what you ’re saying,” Johnnie said. “We will do what ’s best for our client.”

  When I hung up the phone, I turned around to find Linell standing in the doorway looking at me. “I don ’t believe Johnnie ’s attitude, why he doesn ’t see how serious this is. How could he think Bailey staying is good for O.J.?” Then she paused. “Bob, what are you going to do now?” she asked.

  “I have no choice. I am committed to defending my client,” I said to her. “You just told Cochran you know the rules. Well, one of those rules is that a lawyer cannot quit a criminal case once he ’s the attorney of record unless the client consents—and this client doesn ’t. I asked him at the jail if he wanted me out, and he was adamant that he did not. I ’m staying, no matter how I feel about Bailey.”

  Almost a year later, Bill Pavelic told Linell he ’d been a silent witness to that phone conversation. “I told Bob you reminded me of a lioness protecting her family,” he said. “You really let Cochran have it. I respected you enormously for that.”

  Bailey stayed. Johnnie Cochran got the self-awarded Nobel Peace Prize for smoothing at least the appearance of troubled waters. Lee and I basically shook hands and went to our corners. There was no kissing and making up. Although he never admitted a thing and has repeatedly denied the charges of leaking, I never forgave him—and don ’t to this day. There were more leaks, more loose lips, and more tension to come. Why Johnnie and O.J. kept him on the team is a question for them to answer. All I knew was that six months before I had made a commitment to a client, and unless and until he decided otherwise, it was a commitment I meant to honor. We had a trial coming.

  Chapter Fourteen

  On January 9, Judge Ito announced to the jurors that they would definitely be sequestered. “This is something we all tried to avoid,” he told them, “but it ’s become necessary.” They would be staying in a very good hotel, he assured them, and they would be allowed family visits on Wednesdays and weekends. Additional arrangements would be made for their comfort and entertainment during the duration of the trial.

  Oddly, this was the first experience with a sequestered jury for the prosecution, the defense, and the presiding judge. While the prosecution had wanted sequestration all along, the defense had taken longer to come around. During jury selection we ’d seen and heard the results of the intense press coverage; our concern now was to keep them from hearing the evidentiary motions on domestic-violence evidence and the arguments over what would be admissible on Fuhrman. There was certainly no way to keep either of those issues off the television or out of the papers.

  Before the holiday break, it had been my unpleasant duty to tell Dean Gerald Uelmen that after the hearings on the domestic-abuse evidence he would no longer be needed in court by the defense team. “We want a new look,” Johnnie had said. Often during the motion hearings, Uelmen would be criticized for not being forceful enough, for not being strong.

  I would try to explain to O.J. that these were complicated legal arguments, argued primarily for the record. “The jury ’s not here for this, and Gerry isn ’t putting on a show. Ito ’s the only audience that counts here, and he respects this attorney.” But a decision had been made. Uelmen would prepare the domestic-abuse motions but not present them in court. Maybe Bailey would do it, Johnnie said.

  Uelmen was angry. “I ’ll be damned if I ’ll be a ghostwriter for Lee Bailey,” he said. I agreed and took a firm stance that Gerry should argue these motions. Judge Ito respected him and called him “Dean” until Marcia Clark objected.

  Johnnie then played the politician, persuading Gerry to reconsider. In mid-January, Judge Ito heard arguments concerning domestic abuse, and Uelmen appeared for the defense.

  Like with most evidence of “prior bad acts,” incidents of prior abuse are only rarely admissible in criminal trials because they can carry such a prejudicial weight to a jury. A defendant is only on trial for the particular crime he ’s been charged with, not for his history, no matter how unacceptable society believes that history to be. Thus Uelmen ’s motion to the court was to exclude everything the prosecution had asked for. “Where is there any similarity between a bedroom argument in which both parties had been drinking and the argument escalates into a slapping incident—and the slashing of two people ’s throats on a sidewalk?” he argued.

  The prosecution had requested that evidence of fifty-nine separate incidents be admissible, and at one point deputy district attorney Cheri Lewis said the prosecution had added witnesses after reading Faye Resnick ’s book. Uelmen reacted strongly to that statement. “I find it very alarming that the Bible for the investigation of this case has been a sleazy tabloid book,” he said. “My first reaction after reading it was that I wanted to take a shower.”

  Ultimately, Judge Ito allowed a number of instances into evidence, including two 911 calls from 1993, a 1985 incident in which the police reported that O.J. broke a car windshield with a baseball bat, and the statements of two neighbors who had called the police to report seeing O.J. standing outside the Bundy apartment and walking back and forth on the sidewalk. When I later cross-examined those neighbors, I felt that we established it was O.J. ’s color, not his demeanor, that had alarmed them sufficiently to call the police.

  Ito excluded the material that he deemed “hearsay” evidence—in particular Nicole ’s own writings and what she had reportedly said to her friends—since she could not be cross-examined on these.

  After arguing the domestic-abuse motion, Gerry Uelmen returned to teaching, although he graciously consented to come back to the Simpson defense team as needed. From the very beginning of this case, he had been an unsung hero, working in the background, logging in untold hours of research, and taking the majority of the motion work on his shoulders, with the brilliant collaboration of Dershowitz and Sara Caplan. The motions that we won on domestic-abuse evidence were brilliantly written and argued by the Dean. In fact, every motion presented in the case, except for those pertaining to DNA, was researched and written by Uelmen, Dershowitz, and Capla
n. When Uelmen left the daily battles of the defense team, he did so with the affection and great respect of those who appreciated what a vital part he had played on O.J. ’s behalf.

  On January 8, Little, Brown publishers announced that O.J. ’s book, I Want to Tell You, written with Larry Schiller, would be published in the next couple of weeks, with an initial printing of five hundred thousand. The book was composed mostly of the letters O.J. had received and his responses to them, along with some short autobiographical sketches.

  The book had originally been the idea of O.J. ’s psychologist, Burt Kittay, and the project had begun the previous fall. When I first found out about it, I was adamantly opposed to it. Anything O.J. said in the book, I argued, could open up lines of inquiry by the prosecution. If he testified, he could be cross-examined on material in the book, and I thought it might be especially negative in the event of a second trial.

  Skip Taft ’s reasoning, and he was in a better position to know than any of us, was that O.J. not only needed the million-dollar book deal to continue financing the case, but he also emotionally needed a forum to express publicly what he ’d been telling the defense attorneys for six months. Those reasons notwithstanding, I didn ’t like it and I never changed my mind. I saw it only as a significant potential threat to my client.

  A few days later, Judge Ito severely limited O.J. ’s visiting privileges. He had abused them, the Judge said, by using the time to write his book with Larry Schiller.

  On January 11, Judge Ito excused two jurors from the panel. One was a Latina letter carrier who was reportedly in an abusive relationship; the other, the African-American man who had worked for Hertz.

  On January 13, we experienced one of the most difficult and emotionally charged days we had seen thus far, or would see throughout the duration of the trial. The defense was arguing its intention of questioning Mark Fuhrman concerning serious allegations of racism. It was our contention that his documented history of racially biased beliefs and behavior impeached Fuhrman ’s credibility as a key witness for the prosecution, and we wanted the jury to know this.

  Since the trial hadn ’t yet begun, the jury was not on hand as Johnnie read aloud to Judge Ito and the prosecution lawyers some of the background material we ’d received on Fuhrman, which contained repeated use of the word “nigger.” Chris Darden, understandably, grew noticeably upset as he listened, and made strong objection to the n word being used in the jury ’s presence.

  “It is the dirtiest, filthiest, nastiest word in the English language,” he argued. “It will upset the black jurors. It will issue a test: ‘Whose side are you on, the side of the white prosecutors and the white policemen, or are you on the side of the black defendant and his black lawyer?… Are you with the man, or are you with the brother? ’ “

  As a black prosecutor in Los Angeles, Christopher Darden had probably faced many difficult challenges, and being named to the Simpson prosecution may have seemed like a mixed professional blessing. Darden, a soft-spoken man, had a reputation for hard work and deep commitment to his job and his beliefs. But his courtroom demeanor, especially when he was riled, gave him the appearance of having a significant chip on his shoulder. He hadn ’t mastered (if indeed he wanted to) Johnnie Cochran ’s self-proclaimed adeptness at not ever letting people know what he was thinking and feeling.

  Prior to the Simpson case, Darden had viewed Cochran as a role model. However, he had chosen not to emulate him. Once on the prosecution team, Johnnie Cochran claimed that Darden had become an outcast in his own community, and even in his church. Cochran took advantage of that, constantly baiting Darden for prosecuting O.J. Simpson, for being a “pawn” of the district attorney ’s office. That they should be adversaries in this case—and in particular concerning the use of the n word—struck many courtroom observers as a painful irony.

  Cochran responded angrily to Darden ’s remarks about the jury being offended, saying, “African-Americans live with offensive words, offensive looks, offensive treatment every day of their lives. And yet they still believe in this country.”

  Then Chris Darden fell into the trap of trying to match Cochran ’s indignation. “O.J. has a fetish for blond-haired white women,” he said, “but the prosecution won ’t bring that up at trial because it would inflame the passions of the jury.”

  At the counsel table, O.J. was teary as he listened, distressed about the use of the word he hated, and about the battle of words and emotions between the two lawyers. He was especially upset about Darden ’s reference to Nicole. To him, this kind of talk was race-baiting, and it didn ’t reflect the way he felt about race, or the way Nicole had felt about it. He was even more horrified that it was coming from two educated black men, over a word that typified everything he ’d fought to get away from.

  Said a shaken Judge Ito, “This is the one main unresolved problem in our society, and for those of us who grew up in the sixties and hoped this would go away, it ’s a big disappointment to still have to read this stuff.”

  We heard later that the pressroom had become very quiet after the argument. Although I congratulated Johnnie later on his ability to speak so passionately, I remained upset by the encounter between the two lawyers. I felt that it had somehow turned a legal issue, an evidentiary question, into a street fight. By baiting Darden successfully so early in the trial, Johnnie had established himself as top dog, unarguably a tactical advantage for the defense. Unfortunately, it set Darden and Cochran on a dangerous path that would run between them like a live electric wire throughout the rest of the trial.

  On January 20, the judge ruled that he would not ban the use of the n word in front of the jury, saying, “When meritorious arguments are raised on both sides, the court must always remember this process is a search for truth and that it depends upon the sound judgment of our jurors.”

  Assistant district attorney Cheri Lewis had called our motion to examine Fuhrman on the issue of his racial bias a “fishing expedition.” Lee Bailey answered, “This fish is hooked, gaffed, and in the boat.”

  The opening day of the trial finally arrived on Tuesday, January 24, 1995, under a steady drizzling rain, gray skies, and the drone of press helicopters. It was gridlock hell in front of the courthouse as everyone assembled for what writer Dominick Dunne had called “the Super Bowl of murder trials.”

  “This may be one of the most hard-fought legal battles ever,” Judge Ito said in his opening remarks to the attorneys at the two tables in front of him. “I anticipate that both sides will spend a lot of time walking on the edge of the legal envelope. Believe me, I ’ll do everything I can to keep you from going over that edge. I expect to see a demonstration of some fabulous lawyering skills. I also expect to see absolute professionalism.”

  Chris Darden led off the prosecution ’s opening statement, almost immediately presenting their theory of an abusive, obsessed defendant. “If he couldn ’t have her,” he said of O.J., “he didn ’t want anybody else to have her.” Except for the 1989 incident in which O.J. had plead no contest, the prosecution didn ’t have much concrete domestic-abuse evidence and Darden struggled with weaving a convincing scenario without the facts on hand to support it. At one point during his remarks, O.J. leaned over to me and Johnnie and whispered heatedly, “That ’s a lie!”

  If O.J. was this agitated this early, wanting to counter the prosecution, wanting to go on the defensive, how would he respond to what was to come? We had cautioned him about his demeanor in court, and he was trying to stay focused and calm, but he had received grim news just before we came to court. His friend Bob Chandler was dying.

  Marcia Clark ’s two-hour opening statement was an excellent piece of work. She was calm, understated, and compelling. She told her story simply, using the facts as signposts to guide the jury, and although she made reference to the science, she didn ’t get bogged down in it. Just as Darden had done, she referred to Nicole as Nicole Brown and to O.J. only as “the defendant.” When the pictures of Nicole and Ron ’s bod
ies flashed on the big video monitor, there was a collective intake of breath, and then the sound of quiet weeping in the visitors ’ seats behind us. O.J. averted his face, looking off somewhere in the middle distance. He had never seen the crime-scene photos and had said more than once that he intended never to see them.

  Suddenly Ito stopped the proceedings, abruptly dismissing the jury from the courtroom before our opening argument had even begun. He had been told that a Court TV camera had inadvertently televised the face of an alternate juror. Angrily, he delayed the defense ’s opening, saying that he was of a strong mind to shut the cameras off for good.

  I objected in the strongest possible terms, arguing that the prosecution had just spent four hours portraying O.J. Simpson as an abusive monster, and millions of people had watched as they did it. “It would be tremendously unfair for the world to see TV coverage of the prosecution and not our defense.”

  Saying that he wanted to deliberate, Ito recessed until the following day, when he would let us know his decision. At that time, Cochran would deliver the opening arguments for the defense.

  Johnnie had gone over his opening with all of us, and there had been an immediate difference of opinion regarding how far we should go with an affirmative defense—to make a preemptive strike on the prosecution ’s case. I cautioned him to be careful to speak in general terms, especially when it came to events O.J. might be the only witness to, since the question of O.J. testifying remained open.

  I was uncomfortable with some of the time line witnesses that Johnnie planned to mention, Rosa Lopez and Mary Anne Gerchas in particular. In high-profile cases, I ’ve always been skeptical of witnesses who come in late with their stories. Something about Lopez unnerved me. She was a maid for the people who lived next door to O.J., and she was adamant about what she ’d seen: O.J. ’s Bronco parked out in front of Rockingham, at a time when the police claimed he was at Bundy committing the murders. But she was vague about everything before and after seeing the car, including the month or season her Bronco sighting had occurred. I felt she wouldn ’t be believable.