The Run of His Life

by Jeffrey Toobin

  Clark was an accomplished lawyer but a far from obvious choice to prosecute such an important case. In fact, Garcetti never really assigned Clark to the Simpson case at all; she had simply taken Vannatter’s call on Monday, June 13, and stayed with the case through the tumultuous first week. It is difficult to say whether Garcetti, given a real choice, would have picked Clark. She had prosecuted several murders, but other senior deputies had tried more, and more difficult, cases. Moreover, Clark’s June 20 performance suggested that for all her competence, there may have been good reason not to choose her. Among those with long memories of the Los Angeles District Attorney’s Office, Clark’s behavior at the press conference raised disquieting echoes. The office’s losing streak in big cases was well known. What was less known—or at least less commented upon in the media—was that most of those cases had been lost by women prosecutors with pugnacious demeanors, among them Lael Rubin in McMartin Preschool; Lea D’Agostino in Twilight Zone; and Pamela Bozanich in Menendez. All of these prosecutors came across as aggressive and outspoken, just as Marcia Clark did at her postarraignment press conference. Of course, it might have been just a coincidence that it was female prosecutors in Los Angeles who had failed in the high-profile cases—just as the harsh judgments of them might have been the result of sexism—but Shapiro and his colleagues on the defense team regarded these perceptions as important. From the beginning, they thought that, like the other prominent and unsuccessful prosecutors, Clark would come across as unduly harsh; consequently, they were delighted she had the case.

  Ironically, the public relations concerns that guided the district attorney’s office made Clark’s position on the case unassailable. Because the events of the first week had been so public—and Clark such a visible part of them—removing her would have caused a considerable stir. During that week, Clark herself had clearly committed no gaffe that would have justified her being pulled from the case. Whether or not Garcetti admitted it, a decision to remove her would have been seen as at least partially driven by her gender, as well as the office’s history of failure by female prosecutors. Garcetti’s base of liberal Democratic supporters would have rebelled, and the media would have rushed to the story.

  And there was another, less public, reason Garcetti was bound to stay with Clark, this one rooted in the arcane internal politics of the district attorney’s office. Clark’s best friend in the office was prosecutor Lynn Reed Baragona. Several years earlier, Lynn Reed, as she was then known, had sued Gil Garcetti, then just a supervisor in the D.A.’s office, alleging sexual discrimination in promotions. The case was settled to Reed’s satisfaction before it was adjudicated, but the rancor between Reed and Garcetti was long established and well known. (The D.A.’s office abounds in these sorts of interwoven connections. Though the office has nearly a thousand prosecutors, the same set of senior people has run the office for decades, and the personal, social, and professional relationships among them yield a byzantine web of rivalry, grudge, and affection. For example, Lynn Reed had once dated prosecutor Peter Bozanich, who later married the prosecutor who would go on to lead the first Menendez brothers trial. At the time, Peter Bozanich was sharing an office with fellow prosecutor Lance Ito, who in turn was dating prosecutor Jackie Connor. Connor went on to marry yet another prosecutor, James Bascue, who would become a superior court judge and Ito’s mentor in the district attorney’s office and, later, on the bench. Connor later became a superior court judge as well, and she presided over Marcia Clark’s biggest case prior to Simpson—the Mount Olive Church murders.) If Garcetti had taken Clark off the case, Clark’s supporters might have suggested that he was retaliating against her for her friendship with Lynn Reed Baragona, and thus raised the issue of the sexual discrimination claim. The district attorney had no interest in stirring up that old controversy.

  Besides, Garcetti gave little thought to replacing Clark that first week because everything seemed to be going so well. With Simpson reeling, Garcetti and Clark’s instincts told them to keep the pressure on. The hiring of Shapiro had also buoyed the prosecutors. No one could remember the last time Shapiro had taken a murder case to trial in superior court. (In fact, he never had.) Shapiro had the reputation for trying to delay cases into oblivion and then, when the heat died down, striking a plea bargain. That, after all, was what happened in most cases: Defense lawyers stalled; prosecutors pushed. True to their customary role, the prosecutors tried to skip the June 30 preliminary hearing altogether.

  The California tradition of holding preliminary hearings is a relative anomaly in American criminal law. “Prelims,” as they are known, are essentially miniature trials held in front of a judge rather than a jury. For many years, California law required prelims—a municipal judge would determine, in a felony case, if there was “probable cause” that the defendant had committed the crime. In fact, prosecutors almost never lost preliminary hearings—that is, judges rarely tossed out cases on the grounds that the government had failed to meet its burden. Still, prosecutors loathed prelims, which forced them to offer up their witnesses for cross-examination by defense lawyers at a very early stage in the game. An effective cross-examination of a government witness at a prelim sometimes rendered that person virtually useless at trial or, at the very least, gave the defense a road map to weaknesses in the prosecution’s case. (Not surprisingly, defense lawyers loved prelims.) So, as part of the law-and-order movement that swept California in the 1980s and 1990s, prosecutors fought to cut back on prelims. Specifically, in a referendum proposed by the law enforcement community and passed by state voters in 1990, the government won the right to present most cases, including murder cases, to grand juries rather than at preliminary hearings.

  By contrast, prosecutors love grand juries, whose deliberations are secret. Most important, defense lawyers are not allowed to cross-examine witnesses, or even to attend the proceedings. Asked by a prosecutor to indict someone, grand juries invariably do. Grand juries allow prosecutors to move cases to trial without exposing more than a small fraction of their evidence—and they obviate the need for preliminary hearings. So in the Simpson case, the prosecutors set out to have the grand jury issue an indictment before the preliminary hearing was to begin on June 30. That meant Clark had to move quickly. In fact, she had begun her presentation to the grand jury on Friday, June 17, even before Simpson was tracked down and arrested.

  The grand jury met in the downtown Criminal Courts Building—a fact of considerable significance in one of the biggest controversies of the case. Since the murders had occurred in Brentwood, prosecutors theoretically had the right to try the case in the Santa Monica branch of superior court—and thus to have access to that court’s substantially white jury pool. The differences in the jury pool between Santa Monica and downtown were dramatic: in Santa Monica, 80 percent white and 7 percent black; downtown, 30 percent white and 31 percent black. (Latinos and Asians accounted for most of the remainder in both areas.) Why, it has long been asked, did prosecutors choose to try a popular black celebrity in front of a heavily black jury pool?

  In fact, the prosecutors made no such choice. A variety of factors made a trial in Santa Monica impossible from the outset. First, the courthouse there had sustained considerable damage in the Northridge earthquake, which took place just six months before the murders. It was in no shape to receive the onslaught of media and public demands that would accompany the Simpson trial, and damage to the district attorney’s offices there had left them all but uninhabitable. Second, the county had set up metal detectors and other logistical accoutrements to lengthy, high-publicity cases on the ninth floor of the downtown courthouse; the judges insisted that all such cases be tried there. Third, the D.A.’s office had placed the special-trials division—Marcia Clark’s unit—in the Criminal Courts Building just so that it would be near those ninth-floor courtrooms. And finally, there was a grand-jury room in the Criminal Courts Building, but not in Santa Monica; cases indicted by the downtown grand jury usually stayed there for
trial. In light of all this, trying the Simpson case downtown was such an obvious decision that the prosecutors never even discussed any alternative possibilities that first week.

  It was Gil Garcetti who muddied the waters on the downtown versus Santa Monica issue. Shortly after Simpson’s arrest, Garcetti told several reporters that he wanted the Simpson trial held downtown because a verdict rendered there would have more “credibility” than one in Santa Monica. He said a downtown jury would contribute to the “perception of justice” surrounding the case. These remarks were typical of the elliptical way the participants in the case discussed race in its early stages, but Garcetti’s message was clear: A downtown jury would have substantial African-American representation, and its judgment on a black American hero would be respected. In addition, as a Democrat elected with substantial African-American support, Garcetti had to pay homage to his base, and trying the case downtown was one way to do it. Even more important, Garcetti lacked the stomach for the kind of fight an effort to conduct the trial in Santa Monica would have provoked. He would have had to argue that he wanted to be in Santa Monica because he wanted white jurors—a politically unpalatable prospect, especially on a issue where he was probably doomed to lose anyway. Garcetti’s coded remarks about “credibility” and the “perception of justice” came at a time of, and as a result of, the prosecution’s first blush of confidence after the Bronco chase. At that point the D.A. and the prosecutors on the case had no doubt about their ability to win the case, wherever it was tried. There seemed little harm in the district attorney’s boasting about his concern for the sensitivities of a crucial constituency.

  In fact, Garcetti’s remarks would backfire dramatically. Once the case began to turn against the prosecution and racial issues emerged at the center of the trial, reporters began pestering Garcetti with questions about why he had decided to have the case tried downtown—i.e., why he had given up the opportunity for a much “whiter” jury. (Of course, if he had tried to keep the trial in Santa Monica, these same reporters would have demanded to know whether his attempt to keep the case away from downtown was “racist.”) In answering these questions long after the original decision to go downtown, Garcetti fell back on the truth: that the earthquake damage to the Santa Monica courthouse and other factors had tied his hands. But because Garcetti’s past remarks suggested that he had made a choice to go downtown, the issue dogged him. It was a classic example of the phenomenon of a lawyer’s “spin” returning to haunt him. But Garcetti’s answer—his last answer, anyway—was the truth: The Simpson case could never have been tried anywhere except the dreary and decaying Criminal Courts Building in the civic heart of downtown Los Angeles.

  On Friday, June 17, the grand-jury investigation of O.J. Simpson began with the sound of a telephone jarring Kato Kaelin awake at 6:00 A.M. Seeking relief from the chaotic scene at Rockingham after the murders, Kaelin had moved in temporarily with a friend, Grant Cramer. In the early morning call, an LAPD detective informed Kaelin that he would be coming to Cramer’s home at 8:00 and escorting Kaelin downtown for more interviews with the police. At the appointed hour, a pair of detectives arrived with a grand-jury subpoena demanding that Kaelin provide testimony that very afternoon.

  Marcia Clark had not yet met Kato Kaelin, but the detectives had warned her about this skittish and eccentric witness. Clark and David Conn worried that he might be manipulated by Simpson’s lawyers if they had a chance to get to him first. (In fact, though the prosecutors didn’t know it at the time, Kaelin had already spoken to Shapiro.) The prosecutors felt that they needed to lock in Kaelin’s story under oath or it might change to help the defendant. This was a highly unusual, and confrontational, way to proceed. Grand-jury witnesses invariably receive more than a few hours’ notice.

  Through friends, Kaelin had managed to arrange for a criminal defense lawyer to meet him at the district attorney’s office. Escorted into Marcia Clark’s office on the eighteenth floor late Friday morning, Kaelin tried to stall until his lawyer, Bill Genego, arrived. Kaelin made small talk with Clark about the poster of Jim Morrison that adorned her office, but he fended her off when she tried to discuss the murders. Not for the last time, he left Clark a thoroughly frustrated woman.

  Finally, Genego arrived to intervene.

  “It’s five to one,” Clark said. “You can have three minutes with your client before we take him down to the grand jury. He’s going on at one o’clock.”

  “That’s insane,” Genego replied. “You don’t subpoena someone for the same day he’s going to testify.”

  “He’s going in,” Clark said. “That’s that.”

  After Genego and Kaelin conferred briefly in Conn’s office, the defense lawyer renewed his plea for a little time to talk the situation over. No deal, said Clark. Get in the elevator.

  Downstairs, in a small anteroom, Genego made a final plea to Clark just before she was to take Kaelin inside the grand-jury room to testify. “Look,” said Genego, “let’s just put this off until Monday.”

  “No way,” said Clark.

  “If you force him to go in there, I’ll just tell him to take the Fifth and you won’t get anything from him.”

  “He’s already spoken to the cops on Monday,” Clark said, then handed Genego a copy of the police report of Kaelin’s statement. She asked Kaelin, “Aren’t you going to say the same thing you said before?”

  Genego put up his hand. “I told you I don’t want you asking him any questions.”

  Clark was incensed. “I’ll ask him questions if I want, and if you try to interfere I’ll have you arrested for obstruction of justice.”

  An experienced criminal lawyer, Genego had never before been threatened this way by a prosecutor. Left no alternative, Genego scribbled out a page of instructions and handed them to Kaelin before Clark escorted him into the grand-jury room. Clinging to his lawyer’s script, Kaelin picked his way through the jurors, who were seated classroom-style in front of the witness stand, and flopped into the chair.

  After he gave his name and took the oath, Clark asked him, “Mr. Kaelin, were you acquainted with a woman by the name of Nicole Simpson?”

  “On the advice of my attorney,” Kaelin stated, “I must respectfully decline to answer and assert my constitutional right to remain silent.”

  “You seem to be reading from a piece of yellow paper, and there is some writing on that paper,” the prosecutor said. As Clark would soon know only too well, Kaelin could never have uttered such a cogent sentence if left to his own devices. Kaelin admitted that he had been reading his answer.

  Clark tried again, asking, “On the night of June 12, 1994, were you in the company of Mr. Orenthal James Simpson?” (Among prosecutors, it would become sort of a trope, even a badge of honor, to use Simpson’s ungainly full name, no matter how stilted it made them sound.)

  Kaelin kept reading the same response to her questions, and Clark soon excused him to speak with Genego, who was waiting outside. After a moment, Kaelin returned to the grand-jury room and repeated his refusal to answer questions.

  Then, at Clark’s direction, the foreperson of the grand jury read a stern message to Kaelin: “Mr. Kaelin, I advise you that this grand jury is a lawfully constituted legal body and that your refusal, without legal cause, to answer questions before this grand jury does constitute contempt and will subject you to imprisonment pursuant to the laws of this state.” (Recalling the scene for the man who later wrote his “instant” biography, Kaelin described his reaction in his own terms: “It sounded like something out of an old Dragnet rerun on Nickelodeon.”) When Kaelin still wouldn’t answer, the foreperson officially found him in contempt of the grand jury and ordered the bewildered houseguest to the courtroom of Judge Stephen Czuleger.

  Before Judge Czuleger, the prosecutors erupted in fury and indignation. Kaelin, they said, was not a suspect in the case but only a witness; therefore, he had no right to invoke the Fifth Amendment privilege against self-incrimination. Genego replied that
Kaelin certainly had been treated like a suspect that morning, and it was undeniable that Kaelin had received unusually rough treatment for a mere grand-jury witness. Under those circumstances, Genego argued, Kaelin had every right to refuse to answer. A thoughtful judge, Czuleger seemed put off by the prosecutors’ strong-arm tactics. What was more, even though Czuleger (like the rest of the world) had never heard of Kato Kaelin at that point, his reaction to Kaelin’s puppy-dog persona offered a preview of the response of the public at large. What was the harm, Czuleger asked Conn, in giving Kaelin a weekend to talk to his lawyer, “putting aside he may flee the country and be in Brazil by morning.” Everyone in the courtroom laughed at the ridiculous prospect of Kato Kaelin on the run.

  Conn had to admit that the weekend probably wouldn’t make much difference, and Czuleger put off the confrontation until Monday, June 20. “Trust me,” the judge, momentarily stern, told Kaelin. “Don’t go anywhere. You wouldn’t like the alternative. Be here Monday at 8:30 in the morning.” Czuleger then moved to recess the hearing—but not before he learned from his bailiff, and told the astonished audience, that O.J. Simpson had been located and was at that moment part of a televised car chase across the Los Angeles freeways.