The Search for Justice

by Robert L Shapiro

  If it hadn ’t been such a difficult session, it could almost have been described as comical. Lopez didn ’t understand the adversarial nature of the procedure and became very emotional when she was being cross-examined by Chris Darden. One moment it appeared she understood English; the next moment she would fall silent and look to the Spanish-speaking translator for her cue. Although our investigator Bill Pavelic had worked with her, trying to help her understand and negotiate the process, she constantly fell back on a truculent “I don ’t remember” whenever she felt Darden was pushing her.

  The cross-examination had to be continued through to the following Monday, since Marcia Clark said she had child-care problems that Friday afternoon. Lopez argued that she couldn ’t come back on Monday; she ’d made an airline reservation to leave the country immediately.

  While Lopez was still in the courtroom, prosecutor Cheri Lewis checked and found that no reservation had been made, at which point Chris Darden challenged Lopez on the lie. He had her on the ropes.

  Lopez had contradicted herself numerous times, and her credibility was impeached. But the judge wanted to protect himself against reversible error and didn ’t want her to leave without being cross-examined further. Thus the continuation—which gave the defense the weekend to work more with Lopez. She came back on Monday with different clothes and, for a few minutes, a somewhat different attitude. Still her demeanor was a potential disaster, and we wisely never allowed her testimony to be heard by the jury.

  We deserved to lose Lopez, and the prosecution was right to go after her the way they did. It turned out that Bill Pavelic had taped a session with Lopez, and we ’d never turned it over to the prosecution in discovery. At this, Marcia Clark went completely ballistic. “Their conduct has become so egregious!” she stated angrily, and asked for the appropriate sanctions.

  Since I was at the time of the interview the lead lawyer of the team, I took complete responsibility. I told Judge Ito, “I am responsible for everything that happened at that time.” However, Ito found that Lopez had been the responsibility of Cochran and Douglas, who were each fined one thousand dollars for not reporting Bill ’s audiotaped interview with Lopez. When Johnnie pointed out that a fine of that size had to be reported to the state bar association, Ito reduced it to $950.

  The Lopez episode concerned me greatly. It was becoming clear that Cochran and Douglas did not take as conservative a view of the discovery laws as I did. And it was rumored that Lopez had been paid money for her testimony, which I didn ’t believe was true.

  Always in the back of our minds, from the very beginning, was the possibility of a second trial, either because of a hung jury or a conviction followed by an appeal. We had to be aware of the public perception not just of O.J. but of his defense lawyers. In a second trial, impaneling a jury would be harder than it was the first time, getting a favorable verdict would be tougher, and out-strategizing the prosecution would be daunting. Anything that made us look unprofessional would hurt us in the short run; it could do even more damage in the long run.

  Ever since the debacle with Bailey, the press seemed to equate Johnnie ’s larger public role as a demotion for me. Whenever O.J. saw something regarding the situation in the papers, he said to me, “These guys don ’t realize that this was our plan all along, especially after we got this jury—that you were going to hand the ball off and Johnnie would run with it.”

  In fact, Johnnie was taking more control in strategy, and in the media. Had it been up to me, there would ’ve been no statements, no television interviews, no print interviews, nothing to increase or intensify the white light of scrutiny we were already under. I raised objections where I could, and tried to pick my fights. As I watched Johnnie take over, I often remembered the football analogy. I ’d thought that the quarterback—me—would run the team. But obviously, O.J. identified with the guy who was playing him—that is, Cochran.

  On March 1, Michael Knox was dismissed from the jury. The following day, the papers were full of the story that Marcia ’s ex-husband, Gordon Clark, had filed suit for full custody of their two little boys. At Marcia ’s request, the Superior Court judge ordered the records of the proceedings sealed. It was difficult not to feel compassion for her. She was working long and hard days on a case she was obviously committed to. At the same time, she had to undergo this personal struggle in public view.

  On March 9, Detective Mark Fuhrman took the stand as another star witness for the prosecution, and a suddenly charming Marcia Clark treated him like he was a poster boy for apple pie and American values. He had never been alone during the entire first morning of the investigation, he told her earnestly, except when he was taking notes. Bill Pavelic believed that he hadn ’t taken contemporaneous notes but rather had carefully— and neatly—crafted his report much later, to support his version of those events. Fuhrman had never planted evidence, he said, and he had never, ever made racist slurs. Everyone in the courtroom was aware that the eyes of every single juror were on Mark Fuhrman.

  When Bailey cross-examined Fuhrman a few days later, he asked Fuhrman if he had ever, in the past ten years, used the n word. Fuhrman answered that he had absolutely never done so. Bailey reworded and repeated the question; Fuhrman answered it exactly the same way. Then Bailey went over the top. He vowed to call Max Cordoba, he told Fuhrman.

  Maximo Cordoba, a black former marine, was ready to get on the stand and testify that Fuhrman had called him a nigger. “I ’ve spoken to him on the phone, marine to marine,” Bailey asserted. That night Dateline NBC broadcast an interview with Cordoba in which he claimed he ’d never spoken to Bailey.

  An angry Clark then asked Judge Ito to cite Bailey for contempt. “As an officer of the court he has lied to this court,” she raged. “He was impeached by his own witness.”

  Bailey jumped up, red-faced and angry. “I object, Your Honor,” he said. “Either put Cordoba on the stand or stop her from testifying.”

  Judge Ito told Bailey and Clark to make some apologies, ordering them not to “engage in gratuitous personal attacks upon each other.” Even Lee ’s mother got into the act; she called him on the phone later and told him to “lay off Marcia Clark.”

  The next day, again talking to Dateline, Cordoba “remembered” that he ’d talked to Bailey and that he recalled “in a dream” that Fuhrman had called him a nigger. Cordoba was never called; neither the prosecution nor the defense was interested in having a witness testify to more dreams.

  I knew that O.J. always viewed himself as a gentleman, and he felt things should be done in a gentlemanly way. He had locked his jaw at the word “nigger” and he felt that Bailey ’s attack had been about ego, that discrediting Fuhrman seemed to be more about Bailey ’s needs than about O.J. ’s. “I ’ve got ten witnesses to refute Fuhrman!” Bailey kept insisting.

  “Do we need that many?” O.J. asked him quietly. “Why not use one good one?”

  The consensus seemed to be that Bailey did little or no harm to the prosecution ’s witness. In fact, by pressing as hard as he did, Bailey may even have made Fuhrman look sympathetic. As one reporter phrased it: “Fuhrman managed to elude capture.”

  “The last roar of the lion,” wrote David Margolick of the New York Times, “was really more of a meow.”

  It was clear to me that when Mark Fuhrman said he hadn ’t used the n word in ten years, nobody on the jury believed him. Bailey ’s continued use of the word over and over did nothing but heighten racial tension both inside and outside the courtroom, and it was completely unnecessary. We knew we had several civilian witnesses who could damage Fuhrman ’s testimony; we didn ’t know at this point that there would come another witness who, with Mark Fuhrman ’s own words and voice, would make him and his testimony look absolutely grotesque.

  On March 17, juror Tracy Kennedy was dismissed because it was discovered that he, too, was preparing a book. He had denied to Judge Ito that he had compiled a list of jurors ’ names. When the bailiffs, with Kennedy ’s permissi
on, examined his personal computer and discovered juror information in the disk storage, Kennedy said, “Oh, I thought I got rid of that.” In his book, published some months later, Kennedy reported that he ’d suffered great depression both while on the jury and after his release, and in fact he ’d attempted suicide.

  He was replaced by Anise “Ann” Aschenbach, an alternate we had some uneasiness about. She had once sat on a criminal trial, was the sole jury member to vote for conviction, and had managed by sheer force of will to turn the whole jury around.

  Earlier that morning, which was St. Patrick ’s Day, the police disarmed—i.e., blew up—what they believed to be a pipe bomb, which had been left in a newspaper rack outside the courthouse. Near it was a note reading “Fenians Arise,” which pointed to some kind of link to Irish terrorists—a nice St. Patrick ’s Day touch.

  Ironically, the explosive device had been discovered by my driver, Keno Jenkins, who spotted it when he went to buy a paper, and then alerted the police on the car phone. Some days truth really is stranger than fiction.

  One day in court, I wore a blue-ribbon lapel pin signaling support for the Los Angeles Police Department. It had been given to me two weeks before by Dennis Zine, the president of the Police Protection League. I ’d been wearing it off and on since I got it, but nobody noticed—or objected—until the day I crossexamined Detective Philip Vannatter.

  Since the trial began, Vannatter ’s appearance had been scheduled and rescheduled, which gave me time to study everything he ’d said so far. And he ’d said a lot. There were his investigative reports, for one. In addition, he ’d testified at the grand jury, at the preliminary, and at the hearing on our motion to suppress evidence, when Ito found on the record that Vannatter had “engaged in a reckless disregard for the truth.”

  Phil Vannatter was a seasoned detective as well as a shrewd, cagey, experienced witness. He liked to look jurors in the eye, to make a connection with them while he proved that he knew what he was doing.

  No one does a job perfectly. People forget rules or they take shortcuts to get the job done. The best witnesses are those who acknowledge this and tell it like it is. “Did you make mistakes?” the lawyer asks. “You bet I did,” says the smart witness, the implication being that everybody makes mistakes. The jury is full of human beings who understand that very well. It ’s when you try to justify a position that is not justifiable that you get into trouble.

  I had no bombs to drop on Vannatter, no sweeping moment of impeachment. Just a few, simple questions, which he could not and did not answer to my satisfaction. Why was so much time spent at Rockingham, at the expense of the Bundy crime scene? Was there a rush to judgment, a decision in the early morning hours of June 13 that O.J. Simpson was absolutely, positively, irrefutably the murderer? And why, when O.J. Simpson ’s blood was drawn minutes away from the police laboratory on June 13, did Vannatter then carry it in his pocket for three hours?

  The detective contended that he was following procedure by delivering the blood directly to the criminalist, Dennis Fung, at the crime scene. It was my hope that the jury heard his contention with some skepticism.

  In contrast to Detective Tom Lange, whose demeanor had been stoic and whose answers had been direct, Phil Vannatter ’s attempt to outthink me—in combination with a visible reddening of his face when he was challenged—enabled me to present him to the jury as someone whose credibility was flawed. He was the kind of old-school cop who was too impatient to go by the book, who believed even as he shaded the truth that the end justified the means. He wasn ’t beyond adjusting or tailoring his testimony to make evidence, and his behavior, look better than it actually was, and I had to get the jury to see that.

  That night, Linell told me she felt sorry for Vannatter and was disappointed in me for the way I ’d cross-examined him. He was a decent, hard-working cop, she said, whom I ’d made to look much worse than he was. Maybe he was an old school cop who bent the rules now and then, maybe he was a little loose with the truth. But he was hardly in the same league as Fuhrman.

  As for Tom Lange, I always figured that he didn ’t take it personally. We both had our jobs to do, and like me, Lange had been around long enough to know that that ’s the way the system works. Actually, I liked him. In fact, Lange is the kind of man I could sit down and have a drink with. Whether he ’d want to have a drink with me is another question.

  Ever since the beginning of this case, my younger son, Grant, and his friends had been fascinated with Kato Kaelin. There was something benign and nonthreatening about Kato. Linell said he was kind of like a Barney for the preteen set.

  She had tried to keep the more grisly information about the case from the boys, but now Grant wanted to come to court for my cross-examination of Kato. I assured Linell that there wasn ’t likely to be anything brutal either spoken or seen in the courtroom during that session.

  Grant came to court on March 21, but Marcia Clark ’s direct examination went long, and my cross wasn ’t scheduled until the next day. I took Grant back to meet Judge Ito, who spent fifteen minutes talking with Grant alone in his chambers. When Grant told him he had to go back to school the following day, Ito said, “You should see your dad work, Grant.” He then issued and signed a “court order” to Grant ’s teacher, requesting that he be given permission to take the following day off from school to attend court.

  Back the following day, Linell and Grant sat next to Carmelita Simpson-Durio, O.J. ’s sister. Carmelita, a warm, strong woman, had managed the delicate task of being supportive to her brother while still maintaining her close relationship with Nicole ’s family. During a break in court, she said to Linell, “Don ’t think that Dale Cochran [Johnnie ’s wife] hasn ’t noticed how that Marcia Clark and Johnnie flirt. She told him to cut that out!”

  As Linell sat there with Grant beside her, Lee Bailey turned around at the defense table, and they made eye contact. Caught off guard, Linell made a slight gesture of greeting. She told me later that he “stared a hole through my eyes,” turned his back, and refused to acknowledge them the rest of the session. It was hard for Grant not to notice the snub. “Why is he acting that way to you, Mommy?” he asked.

  “He ’s very busy, Grant, just ignore it,” Linell responded.

  I ’ve always assumed that people have integrity and are worthy of my trust until I ’m proven wrong. Linell is more cautious, more of a skeptic than I am, and she doesn ’t give her trust easily. Once that trust is betrayed, for her it ’s over. That day, she decided not to come back for any more of the trial. “I can ’t stand to sit behind the defense table anymore,” she told me.

  Chapter Sixteen

  On Wednesday, April 5, juror Jeannette Harris was dismissed, because allegedly she ’d once been shoved by her husband, which constituted abuse and which she hadn ’t disclosed on her questionnaire. Her replacement was Brenda Moran, the juror who would be so outspoken the day after the verdict was announced.

  Jo-Ellan Dimitrius had been convinced that Harris was one of our most sympathetic jurors. In fact, when Harris spoke with the press, she told them that she didn ’t believe the jury would vote for conviction. To date, six jurors had been excused; of those, three were black, one Latina, one part Native American. With the jury sequestered, their names a tightly guarded secret, how could these anonymous tips keep coming in about their conduct or their history, some of it going back many, many years? After Harris was excused, we requested an evidentiary hearing. We wanted to know how the anonymous complaints about these jurors were being forwarded to the judge, and who the tipsters were. The hearing was denied.

  A few days before Harris was dismissed, a female juror alternate asked to speak privately to the judge. The judge asked one lawyer from each side to attend. Cochran attended for us, Marcia Clark for the prosecution.

  It turned out that the juror, an attractive woman with long blond curly hair and an air of glamour, felt she was being shunned by the black jurors and criticized for her fashion, for her at
tention to her appearance. Due to her answers in voir dire and the fact that she was married to a black man in the L.A. fire department, we had thought she would work well with the black jurors. Now, Jo-Ellan Dimitrius was speculating on the possibility that the jurors were unconsciously viewing her as a Nicole substitute.

  Ito asked her to stay on, knowing that he would be excusing Jeannette Harris within days, and not wanting to lose her if he could help it. She said she would do her best.

  Once Harris had been excused, she went immediately on television and reported what we ’d been suspecting: There was a split in the jury. She hastened to add that she didn ’t mean in voting, because of course there was to have been no discussion of the trial itself. She meant in friendships, or tension in the absence of friendships. I didn ’t expect or welcome jury bonding at this point; this jury still had a lot of work and deliberation ahead of them. But a schism this early might be difficult to repair, and might influence jurors to vote for or against each other rather than for or against the defendant. In addition to the interjury tensions, Harris reported that some of the guards from the sheriff ’s office were being unkind to black jurors and showing favor to the white ones. Since we hadn ’t heard this from anyone else, we dismissed it.

  The day after Harris was excused, we arrived to find there would be no court that day. Two jurors were sick with the flu, one of them actually hospitalized, on an intravenous line for dehydration. Later that day, a third juror fell ill with the flu. This trial seemed to have a penchant for sending people to the hospital.

  Since the heart of our DNA strategy was to attack the L.A.P.D. ’s collection and contamination of the evidence, a key moment for the defense was Barry Scheck ’s cross-examination of criminalist Dennis Fung. I was amazed to remember that only months before, I ’d been unenthusiastic about Scheck ’s pugnacious, hard-edged courtroom style. In short order, Scheck got Fung to admit that he actually hadn ’t performed many of the procedures he ’d claimed to have done in the preliminary hearing; the trainee, Andrea Mazzola, had done them. Fung didn ’t want anyone to know that someone so inexperienced was handling key evidence.