The Search for Justice

by Robert L Shapiro

  Had I been single, had it been earlier in my career, there was no question that I would have stuck around for the retrial if O.J. had wanted me, and he ’d already said he did. But at this time in my life, things were not so cut and dry.

  Linell, for one, had had enough. For her, the previous eighteen months had been alternately embarrassing, painful, or lonely. My career had always been a matter of pride to her, something we planned and built together. The unprecedented demands of this case, both public and private, had stretched us both to the breaking point. Ever since the trial itself had begun, she had been focused on the end of it, and the resumption of our lives as a family.

  The kids, however, couldn ’t imagine that I wouldn ’t readily go back for a second trial. As badly as they wanted it to be over, they couldn ’t believe that I could ever quit without a final victory. Knowing my competitive nature, Brent just assumed I ’d climb right back into the ring and start swinging again. And Grant said, “You ’re his lawyer, Dad. You can ’t just leave in the middle of a case, can you?” Fortunately, I never had to make that decision.

  It seemed to me that the jury could have chosen one of two ways to begin. First, the foreperson could direct a very deliberate, point-by-point discussion on all the witnesses, key areas of testimony, motive, intent, opportunity, review of the physical evidence, or any combination of any of them. If that was the case, my guess was that they ’d want to resolve any credibility questions of key prosecution witnesses. If there was any doubt after that, they ’d move on to the expert witnesses and look at DNA issues last.

  Or the jurors could, for the first time since they ’d been impaneled months before, simply look at one another and ask, “Well, what do you think?” By taking an early straw vote, they could shortcut the process if most jurors were in agreement one way or the other. This, we discovered later, was exactly what they did.

  Once their first vote was taken, and ten jurors were found to be in agreement for acquittal and two for conviction, they quickly moved to the next question. Just what was it that pointed to reasonable doubt for ten of them? And what pointed to a conviction for the other two? They requested an immediate playback of Allan Park ’s testimony. In retrospect, they wanted to hear the prosecution ’s most “damaging” witness to see how conclusive that testimony actually was.

  On Monday, October 2, four hours after beginning their deliberations, the jury announced they had reached a verdict. A stunned Judge Ito announced that the verdict would be delivered at ten the following morning.

  Before court began on Tuesday, October 3, I spent an hour with O.J., who looked drawn and exhausted. “I slept at least twenty minutes,” he said with a half-smile. “I kept telling myself it was in their hands now, there was nothing more I could do.”

  As the jury filed in, I tried to gauge the jurors ’ mood, tried to read their eyes. True to their history, they held their poker faces to the last. None of them made eye contact with me, or with anyone else that I could tell. When the verdict was passed to the clerk, and then to Ito, I again looked at their faces but still couldn ’t read anything there.

  We all stood in preparation to hear the verdict. The judge ’s clerk, Deirdre Robertson, then read it. As she said the words “We, the jury,” there was a collective inhalation of breath in the room. And then she said, twice in a row, “find the defendant, Orenthal James Simpson, not guilty.” It was all anyone at the defense table could do to remain upright.

  Instantly, it seemed as though the entire room behind me was in tears; on one side, the Goldmans and Browns in grief and anger; on the other, the Simpsons in relief and gratitude.

  Someone said later that in the moments after we received the verdict, I appeared to literally, physically, step back from the table. And in fact, I did. To me, a trial is a sober, somber event, and a courtroom is second only to a church. There may be wisecracks and insults at sidebars, and bad jokes in the judge ’s chamber, but it ’s serious business overall. And no matter the outcome, no matter the verdict, I ’ve always tried to maintain some measure of dignity and decorum in the first strange moments after a verdict is announced. Cheers and high fives are inappropriate; it ’s a courtroom, not the NBA playoffs.

  I felt, and I still feel, that the jury had reached the right conclusion in this case. It was a victory, a legal victory, and people could certainly congratulate each other for the long months of hard work and effort that had produced the result we ’d hoped for. Nevertheless, two people were still dead. It wasn ’t the time for a celebration. It wasn ’t New Year ’s Eve.

  At the courthouse press conference afterward, the mood was oddly jovial, almost giddy. Bailey introduced himself as Cochran, and vice versa, as though we were at a celebrity roast.

  I called Johnnie aside and told him I was going to do an interview with Barbara Walters immediately afterward, at the Century Plaza Hotel near my office. It was the first of two onthe-record interviews I would give after the jury verdict. With the exception of Peter Neufeld, I was the only lawyer on the defense side not to have given an interview during the entire case. Now, although I ’d been given several opportunities, I chose two: one to be taped—the Walters interview—and the other live, on Larry King ’s show.

  For sixteen months I had promised Larry King that when the case was over his would be the first live interview I ’d do. Immediately after the jury verdict I called him and told him I was ready to speak my mind. His response was, “You kept your word.”

  The Walters interview would be taped and have to be edited for time constraints. On King ’s show, I would have the chance to expand on my views, to express all the feelings that I couldn ’t address while the case was proceeding.

  I told Cochran that I was going to be frank on these programs. “You ’ve got to know what my feelings are about this. It wasn ’t necessary, what you did, what you said. The Holocaust reference, the Nation of Islam guards, raising the issue of race to ask for jury nullification.”

  He just nodded as he listened to me. “Johnnie, it could have backfired,” I said. “We had reasonable doubt walking away, from the very beginning. You didn ’t have to play that card.”

  “I appreciate your candor, Bob,” he said. “And you ’re entitled to your opinions. It ’s just that I don ’t share them.”

  Although I was hardly in a mood for a party, I did go to Rockingham to see O.J. and his mother and sisters. I had become especially fond of Carmelita, who dearly loved Arnelle and Jason and had worried so much about them. I had great empathy for the positions they had all been in throughout the sixteen-month ordeal, positions that they ’d occupied with a certain grace, especially Arnelle.

  As Keno turned the car up to Rockingham, it was, as Yogi Berra would ’ve said, déjà vu all over again. There were the throngs of cameras on both sides of the street, making it nearly impossible to get in the driveway. Johnnie hadn ’t yet arrived, and I didn ’t intend to stay long. That evening was the beginning of Yom Kippur, and I knew that Linell was waiting at home for me so that we could go to temple.

  Although things may have grown livelier later that night, while I was there the mood was not festive as much as it was quietly happy, and relieved. I greeted the members of O.J. ’s family, some of whom were still in tears, and spent a few moments with Arnelle, telling her that she had demonstrated incredible strength throughout her father ’s trial. In all likelihood, she would continue to need that strength as the family began its transition into the next stage of a story I suspected wouldn ’t be over for a long time.

  I joined O.J. and a few friends out on the balcony. He was wondering what the days ahead held in store for him. I told him that I suspected that for some time, his life would be very difficult. “I ’ll manage,” he said, looking out at the garden. “It ’s just so great to be home. And you were here from the very beginning, Bob. I ’m grateful for everything you did.”

  I said that I ’d spoken with Johnnie about what was in my mind and heart about the race issue and his use of t
he Holocaust image in his closing remarks to the jury. I also told O.J. that I had been equally candid with Barbara Walters, and that the interview would be on that night. O.J. just shrugged his shoulders and smiled. “I ’m not surprised. You always say what ’s on your mind.”

  Before I left, I called to thank Alan Dershowitz for all his work, for making his keen legal mind and diplomatic skills available to us day or night throughout the entire sixteen months. In turn, he thanked me for bringing him aboard, reminding me that as difficult and conflicted as the recent weeks had been, he firmly believed that the groundwork for the verdict had been laid during the first two weeks of the case. “You shut down a grand jury, Bob, and you wouldn ’t waive time,” he said. “They never recovered from that.”

  More people were arriving as I left Rockingham, with even more reporters and cameras out on the street then there had been when we drove in. There were news helicopters circling above, reminding me of the day of the Bronco chase. I wondered how and when the people in the house behind me would ever return to anything approaching a normal life.

  That night at temple, I was glad to see that Rabbi Zeldin would be officiating at our service, accompanied by Cantor Nathan Lamb, one of the great singing voices in the country, and a teacher and coach of many professional singers. Rabbi Zeldin had told Linell that he had taken a lot of heat from members of the congregation for giving me the Torah to hold during the Rosh Hashanah services. “I don ’t regret it, though,” he said.

  As we took our seats, the tension in the room was palpable. This was clearly a congregation that had sided with the percentage of the American public that believed O.J. Simpson to be guilty. To them, I was the symbol of lawyers using the system to gain an acquittal. The Barbara Walters interview would run at ten that night, right in the middle of services. But it would be reported, and shown again in news segments, over the next twenty-four hours. I could only hope on this, the highest and most sacred of holy days, that the members of my temple would learn of my feelings about race, and later share what I considered to be one of my proudest moments: “Not only did we play the race card, we dealt it from the bottom of the deck,” I told Barbara Walters. I hoped they ’d understand how angry I had been when Cochran compared Fuhrman to Hitler and the Holocaust. I could feel their eyes on my back as the service went on. Linell sat beside me, her back very, very straight.

  What a difference a day makes. When services continued at the temple the next afternoon, the Walters tape had aired and been picked up by virtually every television network. There was a much greater understanding of my role as O.J. ’s defense attorney and my disassociation from the language and symbolism that Cochran had used to make his argument. However, while I felt somewhat more welcome than I had the night before, there was still a strong negative response to the verdict itself. How ironic, I thought, that the trial should culminate with the Day of Atonement, and that in this place of spiritual awareness and awakening, I should be the focus for the conflict and anger the case had provoked.

  Chapter Twenty-four

  Cab drivers now ask me questions about the Fourth, Fifth, and Sixth Amendments.

  —PROFESSOR PAUL ROTHSTEIN Georgetown University Law School

  A few days after the verdict, I went for my annual physical— which was two years overdue—and as I stepped off the elevator, a well-groomed man in his fifties, in shirtsleeves and tie, walked up to me and said, “I ’ve just gotta tell you, that was the dumbest jury on the face of the earth.”

  “Excuse me?” I said. “Who… who are you? And if you don ’t mind, may I ask what do you do for a living?”

  He gave me his name, and said, “I ’m a surgeon.”

  “Well, Doctor, that ’s a very interesting comment you just made,” I told him. “How many juries have you served on?”

  He looked at me with astonishment, shaking his head. “I ’ve got overhead,” he said.

  “Well, what do you do when you get a jury summons?” I asked.

  He said, “I ’ve never been called for jury duty.”

  “Surely you ’ve received some notices at one time or another?”

  He nodded. “Oh, absolutely, but I just send them to my attorney.”

  “Well, the system only works if everybody participates in it,” I said.

  Protesting, the surgeon told me how many people worked in his medical practice, what a heavy workload he dealt with, how many patients he had.

  “Don ’t you take a vacation?” I asked. “Don ’t you ever take any time off? I know the Simpson jury went on forever, but that ’s not the case with most juries, and sequestration is highly unusual. Couldn ’t you find one week? Two weeks?”

  He was still shaking his head. “I ’ve got too many responsibilities.”

  “Are you suggesting that some citizens are too important to serve on juries?” I asked him. “If you are, then I think you completely forfeit the right to criticize verdicts you don ’t like.”

  I deliberately made him uncomfortable. But I ’ve always felt that jury service is a duty and privilege of American citizenship. It ’s right up there with voting. Unfortunately, many Americans don ’t do that, either.

  The prosecution says to a jury, “Look how it all fits together.” It ’s the job of the defense to then say, “Look where it all falls apart.” In this case, the prosecution immediately concluded that O.J. was the suspect, the only suspect, and guilty of the crime. Then they tried to build the case around that. Whereas the defense asked, What do they have that establishes this, and where are the inconsistencies? Frankly, it ’s much easier to pick a case apart than it is to put a case together.

  The prosecution made two errors: They built the case on Fuhrman—and with him, Vannatter and his “reckless disregard for the truth”—and they built it on an endless defense of DNA as well. In terms of Fuhrman, they knew about his history when, or even before, we did—possibly as early as the preliminary hearing, but certainly before the trial. They could have pitched him over the side then and not left his trial testimony (and thus their whole case) open to dissection and doubt. For whatever reason, they chose not to do this.

  In terms of the science of blood, I think the prosecution overtried the case. They attempted to prove not only the scienee but everything behind it, and not only lost the jury, but bored them. When you lose a jury, you ’re in trouble; once a jury is bored, you ’re in big trouble.

  Against their “mountain of evidence,” where did reasonable doubt come from? Their mountain of evidence collapsed under an avalanche of incompetence, contamination, and lies. On one hand, there ’s evidence of blood in a Bronco. But the first witness who said he found that blood was found to be, demonstrably, a liar. In addition, there ’s ample evidence that for three months that car was wide open and available to anyone who wanted to climb into it.

  Then there ’s the glove. If a bloody glove is found at a crime scene, and the prosecution theory is that the person who dropped it there was in a hurry and bleeding, or had blood all over him, there should be evidence of that leading to and from the glove. Yet the ground around and beneath it was completely undisturbed. There were no blood or tracks or leaf-and-dirt disturbances leading up to it, none leading away. Fuhrman described the glove when he retrieved it as “wet and sticky.” Eight or nine hours after it was used in a murder? Why wasn ’t it dried out? Had it been stored in a moisture-retaining bag and taken from one place to another?

  How did O.J. ’s blood get to Bundy? By his own statement to the detectives, he ’d been there often in the previous year and a half, to visit and play with his children, their friends, and the dogs from both houses. How did it get on the foyer floor in Rockingham? Well, why wouldn ’t O.J. ’s blood and DNA be at Rockingham? That ’s where he lived. How did the blood of the victims become intermingled with his in the Bronco? I don ’t know. But with the initial questions to Mark Fuhrman and ample evidence of lax police security for three months, we demonstrated how it could have happened. What about the blood an
d EDTA on the sock? What about the blood found on the Bundy fence that wasn ’t seen two weeks before? It had EDTA traces and extraordinarily high DNA concentrations, with little degradation, in spite of presumably being out in the elements since the day of the crime. To me, that was what “didn ’t fit.” Add to this the demonstrated errors of the “cesspool” police lab and a woefully inept coroner, and any jury finds itself faced with more questions than answers.

  A lot of criticism has been directed toward the jury on reaching a verdict so quickly. I was just as stunned by the speed of the verdict as anyone else on the case. How did they reach that verdict? How does any jury reach a verdict? It differs each time. A juror may come to a vote truly and honestly heeding the judge ’s instructions to leave bias and assumption outside the jury room. But jurors bring their lives into the room with them—their experience, their values, their ability to make careful judgments. Jurors (like lawyers and judges) are human beings, not computers, hence the term “jury of your peers.” And as humans, they cannot help but respond to what they see and hear. They heard Fuhrman impeach himself, and they heard Vannatter deny O.J. had been an early suspect. They listened as Dr. Lee said, “Something wrong.” And they saw O.J. try on the murderer ’s glove, which did not fit.

  If, in the same amount of time, the jury had come back with a verdict of guilty, would there have been the same accusation that this jury failed to deliberate properly? After all, everyone watching the case had already formed their opinions. Why should we have expected that the jury had not at least come to some tentative conclusions of their own? The trial, and their feelings about it, was the only thing these people had in common, the only reason for them to be out of their normal lives and living with strangers. But for nine months, it was the one thing they could not discuss. When that prohibition was lifted, what ’s the first thing they did? They asked each other, “What do you think?” Is that incorrect jurisprudence, or is that logical human behavior?