The Search for Justice

by Robert L Shapiro

  This was only Mazzola ’s second case, and here she was collecting important DNA evidence at a critical stage in the “case of the century,” making textbook errors that were caught on a news video. She didn ’t change rubber gloves between blood samples, and the video recorded her touching the ground with supposedly “clean” gloves.

  Fung had other problems. Evidently Tom Lange had ordered that Nicole ’s body be shielded from press and onlookers, so it was covered with a white cotton blanket from the Bundy apartment. It may have been an act of consideration, but scientifically, it was a significant mistake. Since the blanket had been in her house, and had presumably come in contact with Nicole, O.J., the children, the animals, and any number of other people, there was now a serious question of cross-contamination. Scheck ran a video that showed Fung handling evidence with his bare hands, rather than with gloves, as he ’d stated. “There, how about that, Mr. Fung?!” Scheck said with relish.

  The challenge rang in the courtroom, and some of the jury members leaned forward to get a better look at the video. “Is that a question, Mr. Scheck?” asked Judge Ito.

  There were a number of questions concerning the whereabouts of the vial of O.J. ’s blood that Detective Vannatter had taken from downtown to the crime scene. Fung had previously testified that Vannatter brought it to Bundy in a gray envelope, whereupon Fung took custody of it. He later amended his testimony to say perhaps he could ’ve carried it out in his hand, or put it in a paper bag, or put it in his lab kit, called a “posse.” However, when he saw the videotape, he realized that none of those three things happened. First Vannatter arrived, and moments later, Andrea Mazzola carried out a garbage bag. Without knowing the answer, the defense didn ’t want to ask, “What ’s in the bag, Mr. Fung?” Judge Ito asked the question for us, and after a moment ’s hesitation, Fung answered, “I think it ’s the blood vial.”

  Fung had asked the cops for a plastic bag, and they ’d supplied it from who knows what sources. He put the blood vial in it, and Mazzola, without being told what was in the bag, put it in the front seat of the evidence truck, where it sat until Fung drove off.

  If Scheck ’s cross had been a fight, it would have been stopped as a technical knockout. If it were a horse race, the animal would ’ve been shot out of humane considerations. In fact, during a break, Judge Ito said to Scheck, “You ’d better be careful, you ’re getting close to being reported to the Humane Society for cruelty to indefensible witnesses.”

  Like a good boxer, Scheck homed in one jab at a time, and the cross put a litany of errors into the record. The jury heard about the blanket error (covering Nicole ’s body); the fact that trainee Mazzola, not Fung, collected the blood samples; the possible degradation of blood samples left sealed in plastic baggies in the truck. Fung didn ’t see or record blood evidence found in the car; he didn ’t inventory blood samples, and he later left them vulnerable to tampering in an unlocked storage cabinet. He confirmed that Vannatter carried blood from place to place, which was unprecedented in his experience. He acknowledged the July 3 pictures of the gate, which showed blood that hadn ’t been evident on June 13, and conceded that he didn ’t see blood on the socks until weeks later, which raised the question: When did it get there?

  Afterward, one lawyer commented, “They ’ll probably rewrite all of the L.A.P.D. lab procedures and call it the Barry Scheck Memorial Manual.”

  During the Fung testimony, we were momentarily interrupted when frequent court visitor and cross-dresser Will B. King was removed by the bailiffs. He was screaming at another court visitor who had supposedly sat on his dress. Said an impatient Judge Ito, “Eject that m… wom… person!”

  On April 17, Hank Goldberg was faced with the unenviable task of “rehabilitating” Dennis Fung. Goldberg was tall, lanky, pale, and all business. He and Scheck glared daggers throughout the whole examination, constantly objecting and interrupting each other. Ito grew noticeably angry with the constant back-and-forth on the redirect and the recross, with Goldberg at one point accusing Barry of trying to have “a Perry Mason moment.” As effective as Scheck had been, after this session neither he nor Peter Neufeld was ever cut much slack by the judge.

  After Fung ’s testimony, I offered a fortune cookie to writers Dominick Dunne and Joe McGinniss, joking that they were from the Hang Fung Restaurant. It was an off-the-cuff flip remark that showed up as a lead news story. “Shapiro is a bigot,” was the upshot, and the bad reaction lingered for days.

  I arrived at court one morning to be greeted by an Asian protestor in a black hat, with a sign in Chinese characters. I got out of the car and started to walk up to him, when Jim Amarino, the head of L.A.P.D. security for the courthouse, came running over to me, quite concerned. Amarino, his colleague Laurie Taylor, and the other L.A.P.D. officers responsible for my security had always gone out of their way to protect me and were especially considerate to my wife and sons whenever they attended the trial. This was ironic, given that while they were taking care of me outside the courtroom, inside I was attacking a couple of their L.A.P.D. colleagues. It was out of gratitude for their care that I continued to wear the blue police support pin on my lapel in the courtroom.

  This particular day I told Amarino that I wanted to speak to the protestor. With a shocked grin on his face, he went over to the Asian gentleman and respectfully asked if he could pat him down for security. The man nodded. I then went up and intro- duced myself to him, apologized for my bad joke, and we spoke together for a few minutes. I invited him to join me for lunch that afternoon, but when I came down to look for him during the break, he wasn ’t anywhere to be found.

  In the days to come, I learned that my fortune-cookie remark had done damage that I deeply regretted. I made a formal apology to Dennis Fung and his family in open court and published a letter of apology to the Asian community, which was graciously accepted. I later addressed numerous Asian groups and gave scholarship money and donations to an Asian charity. Cochran, who afterward quipped “We ’re having Fung now,” never apologized to anyone, for anything.

  By the time he ’d been through a direct examination, a cross, a redirect, a recross, and, I think, one last round, Dennis Fung had spent a torturous eight days on the stand. We ’d heard that before coming to testify, he ’d told his colleagues that he ’d been a fan of O.J. and hoped the football hero wasn ’t involved in this crime. Fung certainly couldn ’t have predicted what happened to him at the hands of one of the Simpson lawyers. When at last it was all over, one of the more bizarre moments in the whole trial occurred. On his way out of the courtroom, Fung stopped at the defense table and shook hands with O.J. and the whole team. It not only made the papers, it led to an immediate investigation of court security. The deputies were unnerved that in mere seconds, someone had come that close to the defendant.

  In mid-April, Cochran arranged a lunch meeting in the courthouse for himself, Chris Darden, Marcia Clark, and me. His purpose, he said, was “to find a way for us all to act more professional.” Johnnie ’s wife, Dale, delivered lunch, setting up china and silver on the linen tablecloth and serving an excellent fish dish, with rice, peas, and potatoes.

  It was an oddly wonderful hour. The four of us joked and talked; and the meeting was more like a gathering of old friends than a detente among adversaries. Whether we liked each other or didn ’t, whether our styles clashed or our views differed, we were all in this together. We agreed that we had to cooperate in finding ways to speed things up, cut the sidebars, and reduce the rhetoric. We had no way of knowing at that point, of course, that we were barely halfway through the trial.

  Judge Ito had decided, after Jeannette Harris ’s dismissal, to interview the remaining jurors, with both prosecution and defense attorneys present. He wanted to discover if the charges of racial animosity were true. It was clear that some antagonism was boiling up: We ’d heard about a kicking incident, a hitting incident in the video room, and a tripping incident in the jury box. Ito wanted to do what he could to keep t
he panel intact, in good spirits and good faith, until the trial was over.

  While Ito conducted these interviews, four of us—Cochran, myself, Marcia Clark, and Chris Darden—sat on a small couch in his chambers. Our quarters in court were close; these were even closer. The judge ’s clerk, Deirdre Robertson, was there also. She had become a good friend to all the jurors and had heard many of the negative stories directly.

  The jurors, considering their living conditions, were faring better than I would have expected. The pressure of doing everything together and having nothing in common except the trial—and they couldn ’t even acknowledge that—had to be very, very difficult to bear. For more than three months, these people had been separated from their jobs and families, completely isolated from their lives and what was going on in the world. They were like astronauts, except astronauts train for this kind of isolation and have a pretty good idea about when they ’re going to land.

  We came to the end of the interviews not as worried about what had gone wrong with them as we were in awe of what they were doing each day. It was clear, however, there were going to be more problems if the trial dragged on much longer.

  Immediately after the Dennis Fung testimony and the interviews with the jurors, we had some unscheduled time off, due to the Oklahoma City bombing disaster on April 19. When we returned, the security at the courthouse had been intensified, and we were requested to come directly into court, not linger outside with press or admirers.

  We had had previous bomb threats at the courthouse. Each lawyer, on both sides, had received threatening mail. But we had dismissed those threats. “They ’re all just nuts,” we ’d say. Now, all of those people so tragically murdered in Oklahoma had been the victims of exactly the same kind of “nuts” we ’d been hearing from. It was a sobering, sorrowful thought.

  With the hits the prosecution was taking on collection and contamination of DNA evidence, they began to mount a broader DNA argument. Rockne Harmon, the prosecution ’s DNA expert imported from Northern California, showed up as we prepared to head into the technical phase of DNA testimony.

  Rock Harmon is a quintessential prosecutor. Even if he wanted to, he probably couldn ’t function well as a defense lawyer. A graduate of Annapolis and a Vietnam veteran, he is a true believer in absolute right and absolute wrong. To Harmon, those on the side of right are prosecutors; the rest of us sit at the right hand of the devil.

  Harmon is known as an intimidating opponent to others in his field of forensics, and has a reputation for attacking his peers personally if their views differ from his—which by his lights are absolutely, scientifically correct. His courtroom style, which could be described as energetically abrasive, was effective. In fact, as different as they seemed in background and style, Harmon was cut from the same cloth as Barry Scheck. The two of them often went at it with their hands very close to each other ’s throats. They didn ’t like each other, they didn ’t trust each other, and the question of mutual professional respect was moot. Their antagonism made the DNA wars in this trial more hard-fought, more energy-sapping, and ultimately more tedious than anything we could ’ve anticipated. Except, of course, for Harmon and Scheck, who were in their glory.

  In my experience, a client ’s participation can be pivotal to a case, and every day, O.J. was more and more integral to the defense. He had a great recollection of every event that had taken place in his life, and everyone he ’d ever known. He insisted on getting copies of every motion and memo, and he studied them all, from Ito ’s rulings to the DNA textbooks. He would be on the phone late into the night with Dershowitz, with Uelmen, with me and with Cochran, going over details, refuting and arguing with testimony that had been presented, anticipating what was going to come up the following day. He was especially critical of any lawyer when the subject at hand was one he knew about, especially anything having to do with the Brown family, Nicole ’s life, and their friends and neighbors. “You guys gotta talk to me,” he ’d insist. “You sometimes don ’t know what you ’re talking about.”

  April 21, a Friday, was supposed to be a half-day session, but early that morning I heard a news item on the radio that surpassed almost anything I ’d heard in my twenty-five years of law practice. The Simpson jurors—eighteen in all, including the remaining six alternates—were refusing to come to court and were demanding that Judge Ito come instead to their hotel.

  The week before, echoing one of ex-juror Harris ’s remarks, a juror had complained to the judge that three of the sheriff ’s deputies were giving preferential treatment to white jurors. Since this was the second time he ’d heard this complaint, which involved the same three deputies that Harris had singled out, Judge Ito reassigned them, and put new deputies in their place. It was this action that precipitated the jury “strike,” which, it turned out, wasn ’t so much a strike as it was an expression of solidarity with the removed deputies.

  Ito refused to meet with the jury at the hotel. Instead, he pledged that he, along with attorneys for the prosecution and defense, would willingly hear their complaints in chambers. When they arrived, we were startled to see that thirteen of the jurors were dressed in black.

  What I feared was happening—that the jury was dividing down racial lines—was in fact not happening. True enough, there was a division, but it appeared to be between the older, more conservative jurors and the younger, more outgoing ones.

  The consensus was that when Judge Ito dismissed the deputies, without explaining to the jurors why this was done, their sense of safety, of security, was somehow damaged. They were wearing black, they said, because they were in mourning. Members of their “family” had abruptly disappeared. “These guys were an integral part of our life here,” said one juror. “They were our link to the world. They took care of us. We cried with them when we had family emergencies, or when we had the blues.” What these jurors wanted, it was clear, was some control over their personal destiny.

  Their litany of complaints wasn ’t surprising. The pace of the trial was too slow, the pressures too enormous, and the separation from their familiar lives and loved ones was becoming unbearable. Some jurors were asking flat out to be allowed to leave. Small quibbles had become huge battles. Who sat with whom at meals, who was in control of the video clicker, whether they came back from a shopping trip in an hour or in an hour and a half—these had become make-or-break issues.

  Ito now found himself in an untenable position. If after two complaints he hadn ’t dismissed those deputies, he would ’ve been criticized for not being sensitive to jurors ’ feelings and needs. But taking the action he did had made him, in the press ’s eyes, a judge who ’d lost control of a jury. The sheriff was mad at him, Time magazine now named him a “Loser of the Week,” and worst of all, the trial had come to a screeching halt.

  The real question was one of philosophy. What were the responsibilities of the deputies? According to Judge Ito, first and foremost was providing security for the jurors, to make sure nothing happened to them. Their second obligation was to accommodate jurors ’ needs. The job description seemed to fall somewhere between guard and flight attendant, with some psychological training thrown in.

  As with the deputies, a judge at trial can ’t be all things to all people. Ito ’s failing was that he was too kind, too considerate, for the unprecedented challenge of long-term jury sequestration. There were too many agendas here: the immediate legal concerns of prosecution and defense, the needs of the Browns and the Goldmans, the welfare of the jurors. How could he possibly have made everybody happy—if, in fact, making people happy was part of his job description?

  We decided we needed to make a few adjustments. The first task would be to pick up the pace. Testimony would begin promptly at nine in the morning. Lunch breaks would be only an hour. As for the individual jurors, Ito would continue to hear and heed their complaints. More outings would be arranged for them, so that they weren ’t tethered only to the courthouse and the hotel. It seemed, for the time being, that the
jury storm had blown over.

  On May 1, juror Tracy Hampton, one of the jurors who had insisted on the ouster of the three deputies, was dismissed. She had been fragile and emotional for some time, and Jo-Ellan Dimitrius had predicted that Ito would let her go. A few days after she left, Hampton was taken to the hospital for what was reported as severe stress; we heard later that it was a suicide attempt. She recovered and was featured in a Playboy magazine layout in March 1996.

  During the trial, I attended only one Lakers game, although normally I would ’ve gone more often. On this one night, I was sitting midcourt, in the sixth or seventh row, and Linell and the boys were with me. Up on the big video screen, they flashed pictures of celebrities in the audience. Magic Johnson ’s image drew cheers from the crowd, as did Jack Nicholson ’s. When my face appeared, I heard some scattered boos for the first time, along with a couple of voices in the crowd shouting “Guilty, guilty!” The man sitting next to me leaned over and said, “Don ’t worry, Bob. When this is all over, they ’ll be cheering.”

  Moments later, the screen televised the face of Los Angeles Raiders owner Al Davis, who had recently announced that he was moving the team back up to Oakland. Davis drew an immense chorus of sustained boos. I wondered if he or the athletes on the floor ever grew used to them. I wasn ’t sure that I would.